author: SHARP, W.,J.

text:
    Alan Wayne DAVIS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-4322.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      Alan W. Davis, Sanford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Holier, Assistant Attorney General, Daytona Beach, for Respondent.
   SHARP, W.,J.

Davis petitions this court for a writ of habeas corpus, claiming ineffective assistance of appellate counsel. We deny the petition.

The record establishes that, in February of 2001, Davis was' charged with one count each of illegal dumping of litter, maintenance of a public nuisance [violation of a county ordinance] and maintenance of a nuisance [violation of a county ordinance]. He filed a motion to dismiss the information, which was granted. The state appealed and the order was reversed. See State v. Davis, 838 So.2d 696 (Fla. 5th DCA 2003).

After a jury trial, Davis was convicted as charged. He was sentenced to a year and a day in prison, followed by one year on community control and three years on probation.

Davis appealed his judgment and sentence. He raised three grounds: (1) the trial court erred by denying his motion for judgment of acquittal; (2) sections 403.413 and 832.01, Florida Statutes (2000) are unconstitutional, and (3) the trial court erred in admitting evidence against him that went beyond the dates of the crimes as charged in the information. This court per curiam affirmed. See Davis v. State, 898 So.2d 949 (Fla. 5th DCA), cert. denied, — U.S. --, 126 S.Ct. 245, 163 L.Ed.2d 225 (2005). The mandate issued April 22, 2005.

Thereafter, the state filed an affidavit asserting that Davis had violated two conditions of his community control: being away from his residence on October 21, 2004, and failing to maintain his electronic monitoring device on October 22, 2004; and a repeat violation of the county ordinance regarding trash and debris. The court found him in willful and substantial violation, and sentenced him on January 31, 2005, to three years in prison, followed by one year on community control.

Davis filed this petition for writ of habe-as corpus on December 13, 2005. He raises six grounds: (1) the state relied on numerous false representations at trial and on appeal; (2) the state violated his First, Fifth and Fourteenth Amendment rights; (3) the state used evidence seized illegally; (4) the state failed to prove every element of the charge of violation of county ordinance 94.5(1); (5) prosecution and conviction under both sections 95.4(a) and (b) of the Seminole County code constitutes double jeopardy; and (6) the circuit court did not have personal or subject matter jurisdiction over him to prosecute these criminal charges.

The criteria for proving ineffective assistance of appellate counsel parallel the standard used for establishing ineffective assistance of trial counsel claims. See State v. Riechmann, 777 So.2d 342, 364 (Fla.2000). They present mixed questions of law and. fact. In order to prevail, a defendant must show that counsel’s performance was deficient to such a degree that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment, and the defendant has the burden to show counsel’s deficient performance prejudiced the defense, so that the decision reached would reasonably likely have been different, absent the errors made. In reviewing counsel’s performance, a court must “indulge in a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.”

In Ground 1, Davis argues that the state relied on numerous false representations of counsel and witnesses at trial, and on appeal. He asserts that the state misrepresented facts, state witnesses lied, and that appellate counsel was ineffective for failing to challenge the misrepresentations and lies on appeal. This argument has no merit in this context. Credibility of witnesses is a determination for the jury, not the appellate court. It is trial counsel’s job to impeach the state’s witnesses, exposing bias or inconsistencies in their testimony. These are not issues that appellate counsel could or should have raised on direct appeal.

Davis may be seeking to challenge the sufficiency of evidence adduced at his criminal trial by raising these issues. However, a review of the record shows that his trial counsel filed a motion for judgment of acquittal and argued insufficiency of the evidence at trial. Further, appellate counsel also argued the trial court erred in denying the motion for acquittal based on insufficiency of the evidence on direct appeal. By affirming his judgment and sentence, this court determined the evidence was sufficient, and that has become the law of the case. Just because appellate counsel failed to persuade this court to find the evidence was insufficient does not make a showing of deficiency. Further, habeas cannot be used to relitigate issues determined in a prior appeal. See Porter v. State, 653 So.2d 374 (Fla.1995).

In Ground 2, Davis argues appellate counsel was ineffective for fading to make additional arguments when challenging the constitutionality of the state statutes and ordinances he was found to have violated. This argument has no merit because Davis failed to allege specific acts and omissions constituting a serious deficiency in appellate counsel’s performance. The fact that the ease might have been argued in a different manner, in general, to claim violations of his First, Fifth and Fourteenth Amendment rights does not establish inadequate representation on appeal. Routly v. Wainwright, 502 So.2d 901 (Fla.1987).

In his appeal, appellate counsel argued the statutes and ordinances were' unconstitutional on their face, as being vague and overbroad. Those were probably the best arguments available to challenge the statutes and ordinances on constitutional grounds. Appellate counsel cannot be deemed ineffective because constitutional claims were actually raised on direct appeal, but rejected by the appellate court. Thompson v. State, 759 So.2d 650, 662 (Fla.2000). Habeas is not available to be used to relitigate issues actually raised and determined in a direct appeal. See Porter, 653 So.2d at 374.

In Ground 3, Davis argues the state used evidence seized illegally, and that appellate counsel should have argued the county authorities illegally acquired evidence in order to obtain a search warrant. However, Davis does not identify what evidence was illegally seized, and how it was used to obtain a search warrant. A defendant, in making an incompetent counsel claim, must allege specific facts so that considering the totality of the circumstances, not conclusively rebutted by the record, the appellate court can conclude counsel was deficient and that the deficiency prejudiced the defendant. Kennedy v. State, 547 So.2d 912, 913 (Fla.1989). See also Freeman v. State, 761 So.2d 1055 (Fla.2000). Conclusory allegations do not meet this burden. Kennedy, 547 So.2d at 913.

In addition, Davis does not allege, nor does the record reflect that any motions to suppress evidence were -made below, which might have preserved an issue of use of illegally seized evidence. If not preserved, appellate counsel cannot raise such issues on appeal, and cannot be deemed deficient for not raising them. See Rutherford v. Moore, 774 So.2d 637, 648 (Fla.2000) (“[Ajppellate counsel cannot be considered ineffective for failing to raise issues which [were] procedurally barred ... because they were not properly raised at trial.”).

In Ground 4, Davis argues the state failed to prove every element of the charge of violating Seminole County Ordinance 94.5(a) and (b). This is again another attempt to challenge the sufficiency of the evidence at trial. Habeas cannot be used to relitigate issues that have been preserved at trial, raised on direct appeal, and adversely determined by the appellate court. See Porter, 653 So.2d at 374.

In Ground 5, Davis argues appellate counsel was ineffective for failing to argue that imposition of the sanctions provided by sections 95.4(a) and (b) of the Seininole County Code constitutes double jeopardy. Specifically, he claims that since the county assessed a $13,000 civil fine under section 95.4(a), the state could not prosecute him for the same actions under section 95.4(b).

This argument lacks merit as a matter of law, and accordingly, appellate counsel was not ineffective for having failed to raise it. The constitutional prohibition against double jeopardy prevents a second prosecution for the same criminal offense after acquittal or after conviction, and it prevents multiple criminal punishments for the same criminal offense. Double jeopardy under both the Florida and the United States Constitutions apply to criminal proceedings, not to civil proceedings. Imposition of ,a civil fine in connection with a criminal penalty does not implicate double jeopardy violations unless there is a clear showing the statutory scheme is so punitive in purpose or effect as to negate the state’s intent to deem it “civil.” Kansas v. Hendricks, 521 U.S. 346, 369-71, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997). No such showing was made by Davis, nor, based on a review of the ordinance, could it be made.

In Ground 6, Davis asserts that appellate counsel should have argued that the trial court lacked personal or subject matter jurisdiction.. Davis argues the county violated his due process rights when it failed to give him proper notice of code violations and an opportunity to correct them. This argument also lacks merit.

Appellate counsel cannot be ineffective for failing to raise the issue of personal jurisdiction because the argument is without merit and has not been preserved for appeal. Davis was charged by information with criminal violations of various state statutes and county ordinances. Any argument that the county violated his due process rights by failing to give him notice of his criminal violations and an opportunity to correct them fails because “every person is presumed to know the law and ... ignorance of the law is no excuse.” American Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 377 (Fla.2005). Moreover, the circuit courts have personal jurisdiction over residents of Florida and when reached by summons, they become subject to the orders and decrees of the court. Patten v. Mokher, 134 Fla. 433, 184 So. 29, 30 (1938). Courts having criminal jurisdiction may issue writs and process necessary to the exercise of criminal jurisdiction and the writs and processes shall have effect through the state. § 900.03(2), Fla. Stat. (2001).

Nor was appellate counsel ineffective for failing to raise lack of subject matter jurisdiction because the circuit court clearly had subject matter jurisdiction to prosecute this case. See Freeman, 761 So.2d at 1071. Section 125.69(1), Florida Statutes (2001), provides that violations of county ordinances shall be prosecuted in the same manner as misdemeanors. Since the information charged Davis with both a felony and misdemeanors, the circuit court had jurisdiction. Art. V, §§ 5 and 6, Fla. Const. See State v. Phillips, 463 So.2d 1136, 1137 (Fla.1985).

We note that Davis has filed additional documents with this court that contain scurrilous language directed at the Attorney General, assistant attorney generals, and the judges on this court. We warn Davis that filing such pleadings are improper and that he may subject himself to sanctions by this court, should he continue to do so. Sua Sponte, we strike the following documents in this case: Petitioner’s Response to this Court’s January 12, 2006 Order; Motion to Strike/Discipline Attorneys; Correspondence filed on March 1, 2006, and Notice of Inquiry filed on March 9, 2006.

Petition for Habeas Corpus DENIED On The Merits.

THOMPSON and SAWAYA, JJ., concur.

      . Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

      . Id.

      . Id. at 689.

      . See Freeman v. State, 761 So.2d 1055, 1071 (Fla.2000) (“Appellate counsel cannot be ineffective for failing to raise these issues because the claims are without merit.").

      . See U.S. Const., amend. V ("[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb.... ”); Fla. Const, art. I, § 9 (“NR person shall be ... twice put in jeopardy for the same offense, ..North Carolina v. Pearce, 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969); overruled on other grounds, Alabama v. Smith, 490 U.S. 794, 109 S.Ct. 2201, 104 L.Ed.2d 865 (1989); State v. Wilson, 680 So.2d 411 (Fla.1996). Thus, the double jeopardy clauses of both the United States and Florida Constitutions apply to criminal proceedings, not civil proceedings. See Kansas v. Hendricks, 521 U.S. 346, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997); Collie v. State, 710 So.2d 1000 (Fla.2d DCA 1998), rev. denied, 722 So.2d 192 (Fla.), cert. denied, 525 U.S. 1058, 119 S.Ct. 624, 142 L.Ed.2d 563 (1998).


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    James B. PARTON and Deborah L. Parton, Appellants, v. PALOMINO LAKES PROPERTY OWNERS ASSOCIATION, INC., a Florida corporation, Ila Vinson, Larry Vinson, Rene Muse, Linda Dreibelbis, and Doug Holden, Appellees.
    No. 2D05-2640.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      J. Meredith Wester, Richard Candelora, and Arlene E. Acord of Meehanik Nuccio Williams Hearne & Wester, P.A., Lutz, for Appellants.
    J. Scott Taylor, Tampa, for Appellee Doug Holden.
    Linda Dreibelbis, pro se.
    No appearance for Appellees Palomino Lakes Property Owners Association, Inc., Ila Vinson, Larry Vinson, and Rene Muse.
   SILBERMAN, Judge.

James B. Parton and Deborah L. Parton appeal an order awarding them attorneys’ fees against Appellees Ila Vinson, Larry Vinson, Linda Dreibelbis, and Doug Holden (referred to collectively as “the other owners”). We reverse the fee order and remand for further proceedings.

The parties reside in a deed-restricted community known as Palomino Lakes Subdivision in Pasco County, Florida. The Partons purchased a modular home to place on their property in the subdivision. In August 2000, the. other owners, three of whom were officers and directors of Appel-lee Palomino Lakes Property Owners Association, blockaded the entrance to the subdivision on three occasions to prevent delivery of the Partons’ home. They apparently blocked access to the subdivision because they believed the home to be a mobile home, which the deed restrictions prohibited; however, they continued to block access to the Partons’ property even after they were informed that the home was a modular home that would be permanently attached to a concrete slab. By obstructing the common roadway, the other owners violated the subdivision’s' deed restrictions.

On August 7, 2000, the Partons filed a lawsuit seeking injunctive relief and asserting a claim for breach of contract based on the violation of the deed restrictions. On August 25, 2000, the trial court entered a temporary injunction in the Par-tons’ favor, enjoining the other owners from interfering with the movement of the modular home to the Partons’ property. The Partons later amended their complaint, adding claims for tortious interference with contract and civil conspiracy and seeking punitive damages on the added claims. The tortious interference and conspiracy claims are based on the same conduct which formed the basis for the Par-tons’ claims for injunctive relief and breach of contract. The case was tried on the Partons’ third-amended complaint, in which they requested attorneys’ fees only in count II, the breach of contract claim.

On November 21, 2008, the jury reached a verdict in favor of the Partons on all claims, awarding $5000 in compensatory damages. The amended final judgment reflects awards against the other owners. However, instead of a joint and several award of $5000, the judgment reflects a pro rata award of $1250 against each individual. In a separate trial, the jury awarded punitive damages of $60,000 against Larry Vinson, $40,000 against Ila Vinson, and $50,000 against Linda Dreibel-bis. Doug Holden was not involved in the punitive damages trial.

The Partons filed a timely motion for attorneys’ fees and costs, and on October 21, 2004, the trial court conducted an evi-dentiary hearing. The Partons sought fees as the prevailing party on the claim seeking damages for breach of contract due to the violation of the deed restrictions. The deed restrictions contain the following provision for attorneys’ fees and costs:

The failure of any person violating any covenants to correct such violation after ten (10) days notice in writing shall be deemed grounds for legal prosecution against such person to restrain the violation and/or to recover damages for the same. The party bringing the action shall be entitled to recover in addition to any and all damages, costs and disbursements allowed by law, such sum as a court may adjudge to be reasonable for the services of his or her attorneys. If in the event the court finds that these restrictions have been violated, the judgment of the court shall include the assessment of all costs and attorney fees against the person violating these restrictions as a part of the damages.

At the fee hearing, it was noted that the trial on liability and compensatory damages lasted five days. Two of the Partons’ attorneys testified at the fee hearing, and the trial court admitted into evidence their detailed time records. The Partons’ fee expert testified that the reasonable fee incurred in connection with the dispute was $336,000. This amount reflected a deduction of $26,500 for matters that the expert did not feel were appropriate to be assessed as fees. He further testified that he could not allocate the time expended between the various counts because they all involved the same core set of facts.

In contrast, the other owners’ expert testified that the Partons would only be entitled to fees as to the breach of contract count and that a reasonable fee was “somewhere between” $5000 and $11,000. He opined that “the case probably should have concluded after the issuance of .an injunction.” He did not attempt to allocate the fees as to each count.

After a later nonevidentiary hearing, the trial court rendered its order awarding fees to the Partons. The court found it was clear that the Partons were the prevailing parties in the action and that it was “impossible to allocate between parties or respective counts.” The court awarded attorneys’ fees of $9900 for fees incurred through the entry of the temporary injunction, “according to the restrictive covenants,” and ordered that the other owners were individually liable on a pro rata basis of $2475 each. Then, as to the Vinsons, the court found that they were liable for additional fees based on the Partons’ “Offer of Judgment” made pursuant to section 768.79, Florida Statutes (2004). The trial court found as follows:

The Court further finds that a reasonable fee for Plaintiffs for post offer of judgment work is $240,000.00. The post offer of judgment amount is 75 percent of the amount testified as reasonable by Plaintiffs’ expert, John Raines. The reduction of 25 percent is because the efforts of Plaintiffs’ attorneys, as reflected in the time records, seem somewhat inflated, i.e.: it appears that the Plaintiffs’ attorneys spent somewhat more time on this case post injunction than what would be reasonably necessary to accomplish their goal. The reduction by 25 percent is an attempt by the court to accommodate for that unnecessary effort. On the other hand, part of the reason for the attorneys]/] fees being as much as they are is that this action seems to have been vigorously and expertly defended.

The trial court also awarded costs on a pro rata basis against the other owners. The Partons timely appealed the order awarding attorneys’ fees and costs, raising three issues for our review.

First, as to the $9900 in attorneys’ fees awarded pursuant to the deed restrictions (and apart from the offer of judgment fees), the Partons contend that the trial court erred in failing to award fees incurred after the entry of the temporary injunction. We agree. A trial court lacks discretion to refuse to award reasonable attorneys’ fees to the prevailing party when the deed restrictions contain a provision for attorneys’ fees. See Garvin v. Squiers, 502 So.2d 47, 48 (Fla. 2d DCA 1987). The fee provision at issue in Gar-vin stated that the restrictive covenants could be enforced by an action to restrain the violation or to recover damages and that “[t]he party bringing the action or suit shall be entitled to recover ... such sum as the court may adjudge to be reasonable for the services of his attorney.” Id.

Here, the deed restrictions contain a similar provision that allows a party to bring an action to “restrain the violation and/or to recover damages for the same” and provides that the party bringing the action shall be entitled to recover reasonable attorneys’ fees. Further, the attorneys’ fee provision mandates that “[i]f in the event the court finds that these restrictions have been violated, the judgment of the court shall include the assessment of all costs and attorney fees against the person violating these restrictions as a part of the damages.”

Thus, as to the breach of cohtract action for damages against the other owners, the trial court erred in limiting the award of attorneys’ fees by awarding fees only up to the time that the temporary injunction was entered. The entry of the temporary injunction did not cut off the Partons’ right to recover attorneys’ fees pursuant to the deed restrictions on their breach of contract action. Therefore, we reverse the order awarding attorneys’ fees and costs. On remand, the trial court shall determine the reasonable fees incurred up through the conclusion of the trial on liability and compensatory damages as to Ila Vinson, Larry Vinson, Linda Dreibelbis, and Doug Holden.

As noted previously, the Parton’s third-amended complaint sought attorneys’ fees only in the breach of contract claim. However, their offer of judgment allows them to recover fees incurred in pursuing their claim for punitive damages, which are not duplicative of fees awarded pursuant to the deed restrictions. The Partons do not challenge the trial court’s finding that only the Vinsons are liable for fees pursuant to the offer of judgment. With their fee motion, the Partons filed an exhibit reflecting fees incurred through November 30, 2003, the end of the trial on liability, and an exhibit reflecting fees incurred from December 1, 2003, through May 20, 2004. This breakdown should assist the trial court on remand in determining, based on the offer of judgment, an award against the Vinsons for reasonable fees incurred in connection with the Partons’ pursuit of their claim for punitive damages.

Second, the Partons argue that the trial court erred in failing to make sufficient findings as to the fee awards. For purposes of remand, we address this issue. An order awarding attorneys’ fees is “fundamentally erroneous on its face” when the trial court fails “to make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors as required by Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1151 (Fla.1985).” Baratta v. Valley Oak Homeowners’ Ass’n at the Vineyards, Inc., 891 So.2d 1063, 1065 (Fla. 2d DCA 2004); see also Guardianship of Halpert v. Martin S. Rosenbloom, P.A., 698 So.2d 938, 939 (Fla. 4th DCA 1997). In reversing a fee award in Beck v. Beck, 852 So.2d 934, 938 (Fla. 2d DCA 2003), this court noted that “the trial court expressed dismay at the total amount of fees incurred by both parties in relation to the size of the marital estate and, without making any factual findings, made a substantially reduced fee award.” In Highlands Carpentry Service, Inc. v. Connone, 873 So.2d 611, 613 (Fla. 2d DCA 2004), we determined that finding a “range of acceptability” of 100 to 150 hours and a reasonable rate of $150 to $250 per hour and awarding a fee of $15,000 was insufficient under Rowe. We stated that the trial court “must identify the precise hourly rate as well as the amount of hours reasonably expended.” Id. A trial court abuses its discretion by awarding fees without making specific findings. Id. at 612.

Here, the trial court did not make any findings as to an appropriate hourly rate or the number of hours reasonably expended. Further, regarding the fees awarded pursuant to the offer of judgment, the court found that the fees sought by the Partons were excessive. The court reduced the requested fees by twenty-five percent, stating that “the efforts of Plaintiffs’ attorneys, as reflected in the time records, seem somewhat inflated, i.e.: it appears that the Plaintiffs’ attorneys spent somewhat more time on this case post injunction than what would be reasonably necessary to accomplish their goal.” Although the trial court felt the fees were excessive, on remand it must make the required findings to support its determination of the amount of reasonable attorneys’ fees.

Finally, the Partons contend that the trial court erred in awarding fees and costs pro rata, rather than making a joint and several award. Appellee Holden argues that a pro rata award was appropriate because the amended final judgment on damages did not impose joint and several liability. However, one of the Partons’ attorneys testified at the fee hearing that the damage award was allocated pro rata rather than jointly and severally because “under the breach of contract action, we thought we had to allocate them.”

We conclude that joint and several liability is appropriate for the award of fees and costs against the other owners for breach of the deed restrictions. All four of the other owners are subject to the deed restrictions. See Garvin, 502 So.2d at 48 (recognizing that “a buyer in a subdivision is bound by the provisions contained in a declaration of restrictions” and that “a homeowner successfully enforcing such restrictions is entitled to an award of attorney’s fees when such an award is provided in a covenant of the present kind”). All four of the other owners blockaded the entrance to the subdivision to prevent the delivery of the Partons’ modular home. The deed restrictions state, “If in the event the court finds that these restrictions have been violated, the judgment of the court shall include the assessment of all costs and attorney fees against the person violating these restrictions as a part of the damages.” (Emphasis added.)

The testimony at the fee hearing reflected that the fees could not be apportioned, and in fact, the order on fees and costs states, “The court finds that it is impossible to allocate time between parties or respective counts.” Under these circumstances, we conclude that the Partons are entitled to a fee award that is joint and several. Therefore, on remand, the attorneys’ fees awarded for the breach of the deed restrictions (for fees incurred through the conclusion of the trial on liability and compensatory damages) shall be joint and several as to Ila Vinson, Larry Vinson, Linda Dreibelbis, and Doug Holden.

Similarly, because the evidence reflected and the trial court found that it was impossible to allocate time between parties or counts, the attorneys’ fees to be awarded pursuant to the offer of judgment in connection with the claim for punitive damages shall be joint and several as to Ila Vinson and Larry Vinson.

Accordingly, we reverse the fee order and remand for further proceedings consistent with this opinion.

DAVIS and WALLACE, JJ., Concur.

      . At the fee hearing, one of the Partons’ attorneys explained that the award of compensatory damages was allocated equally among the other owners, rather than jointly and severally, because "under the breach of contract action, we thought we had to allocate them.”

      . The Partons titled each of their demands as a "proposal for settlement,” and the trial court referred to the demands collectively as an “offer of judgment.” Section 768.79 refers to a defendant's "offer of judgment” and a plaintiff’s "demand for judgment.” For ease of reference, in this opinion we will use the term used by the trial court, "offer of judgment.”


author: PER CURIAM.

text:
    A. R., Mother of L. H., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D04-3634.
    District Court of Appeal of Florida, First District.
    May 2, 2006.
    James V. Cook, Tallahassee, for appellant.
    Acelo I. Pedroso, Child Welfare Attorney, Department of Children and Families, Tallahassee, for appellee.
   PER CURIAM.

The appellant challenges a final order by which her minor child was adjudicated dependent because the appellant failed to immediately consent to the insertion of a feeding tube for the child during the child’s hospitalization. The appellee properly concedes that the refusal to immediately consent to the insertion of the feeding tube was an insufficient basis for the adjudication. There being no other findings in the court’s order upon which the adjudication could properly be uphéld, the order under review is reversed.

ALLEN, PADOVANO, and BROWNING, JJ., concur.


author: WEBSTER, J.

text:
    James BYRD, Petitioner, v. SOUTHERN PRESTRESSED CONCRETE, INC., Respondent.
    No. 1D05-5370.
    District Court of Appeal of Florida, First District.
    May 2, 2006.

      Paul M. Anderson and Stephen M. Fernandez of Anderson & Associates, P.A., Tallahassee, for Petitioner.
    D. Ross McCloy, Jr., and Kevin D. Obos of Harrison, Sale, McCloy & Thompson, Chtd., Panama City; Louis C. Norvell of Hand Arendall, L.L.C., Mobile, AL, for Respondent.
   WEBSTER, J.

By a petition for a writ of certiorari, James Byrd seeks review of a protective order entered by the trial court prohibiting his attorney from attending (albeit out of Byrd’s sight) a psychological examination of Byrd to be conducted by a neuropsy-chologist retained by Southern Pre-stressed Concrete. Because we conclude that the order constitutes a departure from the essential requirements of law resulting in material injury that cannot be remedied by appeal following entry of a final order, we grant the petition and quash the order to the extent it prohibits Byrd’s attorney from attending the examination.

Byrd was injured in a multi-vehicle collision that also resulted in two fatalities. He sued Southern Prestressed, alleging that he sustained physical and psychological injuries as a result of the negligence of an employee of Southern Prestressed who was driving one of Southern Prestressed’s tractor-trailers at the time of the incident. Southern Prestressed requested that Byrd submit to a psychological examination pursuant to Florida Rule of Civil Procedure 1.360, to be conducted by neuropsychologist Dr. Harold H. Smith, Jr. After the examination had been scheduled, Byrd’s attorney notified Southern Prestressed’s attorney that he intended to attend and monitor the examination, but would remain out of his client’s sight. Southern Prestressed responded by filing a motion seeking a protective order that would prohibit either monitoring by any third-party observer or electronic recording. The motion was accompanied by an affidavit from Dr. Smith and other materials intended to support the proposition that the presence of either a third-party observer or an electronic recording device would distort Smith’s evaluation. After a hearing at which the attorneys argued their respective positions but no evidence was presented, the trial court entered an order prohibiting any third-party observer from attending, but permitting an “unobtrusive and non-distracting” use of “digital audio electronic” equipment to record the examination. By his petition in this court, Byrd asks us to quash that portion of the order prohibiting the attendance of his attorney.

As our supreme court has told us, “[i]t is well settled that to obtain a writ of certiorari, there must exist ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting from Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)). A ruling constitutes “a departure from the essential requirements of the law” when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). When considering a petition for writ of certiorari on the merits, a court has only two options — it may either deny the petition or grant it, and quash the order at which the petition is directed. It may not enter judgment on the merits, or direct the lower tribunal to enter any particular order. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843-44 (Fla.2001) (citing cases).

Byrd contends that the trial court’s order violates the established principle of Florida law that parties are entitled to have an attorney present at examinations conducted pursuant to Florida Rule of Civil Procedure 1.360 unless the party seeking to prevent the attorney’s presence establishes (1) a case-specific reason why the attorney’s presence would disrupt the examination and (2) that no other qualified individual in the area would be willing to conduct the examination with the attorney present. Southern Prestressed responds that the principle of law upon which Byrd relies applies only to 'physical examinations. It strongly implies that, there is no “Florida case which specifically establishes a test to determine whether [Byrd’s] counsel has the right to attend a psychological evaluation” and that, therefore, by logical extension, the trial court’s ruling may not be viewed as a departure from the essential requirements of law.

Southern Prestressed does not take issue with the proposition that well-established Florida law entitles a party who is required pursuant to rule 1.360 to submit to a physical examination to have his or her attorney present unless the party seeking to prevent the attorney’s presence establishes (1) a case-specific reason Vvhy the attorney’s presence would disrupt the examination and (2) that no other qualified individual in the area would be willing to conduct the examination with the attorney present. Although technically dicta because the issue presented was whether an insured seeking personal injury protection benefits was permitted to have an attorney present,at a compulsory medical examination scheduled by the insurer, in U.S. Security Insurance Company v. Cimino, 754 So.2d 697 (Fla.2000), our supreme court expressed its opinion that such was the case. There, the court held that the same “liberal posture” adopted by Florida courts when considering whether attorneys should be permitted to attend rule 1.360 and workers’ compensation examinations should apply to compulsory personal injury protection medical examinations. Id. at 700-01. In doing so, the court cited with approval two Second District Court of Appeal decisions holding that the party seeking to prohibit the attorney’s presence must provide evidence of “a case-specific reason why an attorney’s attendance would disrupt the examination” and “prove, at an evidentiary hearing conducted by the trial court, that no other qualified physician in the area would be willing to perform the exam with the third party present.” Id. at 701 n. 5 (citing Wilkins v. Palumbo, 617 So.2d 850, 854 (Fla. 2d DCA 1993) and Broyles v. Reilly, 695 So.2d 832, 834 (Fla. 2d DCA 1997)). Although the court was clearly aware that other jurisdictions employed different approaches {id. at 700 n. 4), it concluded that, “by allowing the examination to be observed by a third party or videotaped, the potential for harm to either party is reduced, not increased.” Id. at 702.

Neither party has cited any Florida appellate cases applying this well-established principle to compulsory psychological or psychiatric examinations. In fact, Southern Prestressed goes so far as to imply that no such decisions exist. However, our independent research has discovered three such appellate opinions, all of which granted petitions seeking certiorari and quashed orders prohibiting third parties from being present during the examinations.

In Brompton v. Poy-Wing, 704 So.2d 1127 (Fla. 4th DCA 1998), the Fourth District quashed a trial court order in a medical malpractice case which had granted the defendants’ motion for a protective order to prohibit plaintiffs’ attorney from attending a court-ordered neuropsychological examination of one of the plaintiffs. Relying on Broyles and on Bartell v. McCarrick, 498 So.2d 1378 (Fla. 4th DCA 1986), the court said that “ ‘[t]he burden of proof rests with the party opposing third party attendance to show why the court should deny the examinee’s right to have counsel, a physician or other representative present.’ ” Id. at 1128 (quoting from Bartell, 498 So.2d at 1379). The court also said that the affidavit of the examining psychologist which had been offered in support of the motion was insufficient because of its conclusory, general nature. In doing so, it cited Broyles and Wilkins for the proposition that “affidavits opposing the presence of third parties should contain case-specific justifications.... ” Brompton, 704 So.2d at 1128. The Fourth District also quashed a trial court order requiring two minor plaintiffs to submit to compulsory psychiatric examinations without the attendance of their attorney, mother and some means of recording in Palank v. CSX Transportation, Pic., 657 So.2d 48 (Fla. 4th DCA 1995), relying in part on Bartell and concluding that the defendant had failed to present sufficient evidence to carry its burden.

In Freeman v. Latherow, 722 So.2d 885 (Fla. 2d DCA 1998), the plaintiff in a personal injury action sought a writ of certio-rari quashing a trial court order directing her to submit to a compulsory neuropsy-chological examination without the attendance of either her attorney or a videogra-pher. Freeman is of particular interest because the examiner chosen by defendants was the same Dr. Smith who has been chosen by Southern Prestressed in this case. The court said:

In this district, Broyles is the primary case addressing the presence of videog-raphers and attorneys at compulsory medical examinations. Broyles held that the burden of proof to show why counsel and a videographer or court reporter should not be present at a plaintiffs compulsory medical examination is on the party opposing their presence. To satisfy this burden, the examining doctor must provide case-specific reasons why their presence would disrupt the examination. Once this test is satisfied, the party seeking to exclude third persons from the examination must prove.at an evidentiary hearing conducted by the trial court that no other qualified physician can be located in the area who would be willing to perform the examination....

Id. at 886 (citing Broyles, 695 So.2d at 834, which the court noted had, in turn, cited Wilkins v. Palumbo). While recognizing that “Broyles and its predecessors addressed compulsory medical examinations of physical injuries rather than psychiatric examinations,” the court nevertheless applied the Broyles test, noting that “[t]he Fourth District ha[d] applied th[at] test to neuropsychological examinations.” Id. (citing Brompton v. Poy-Wing). The court then concluded that defendants had not satisfied the first part of the Broyles test because Dr. Smith’s testimony “did not provide case-specific reasons why the presence of a video camera in the interview room, with counsel and the videogra-pher monitoring the taping in an adjacent room, would be disruptive.” Id. It consisted, instead, of broad generalizations and conclusions. Id. The court further concluded that defendants had failed to satisfy the second part of the Broyles test because they presented no evidence “that there was no other qualified doctor in the area who would be willing to perform the examination” subject to the conditions requested by the plaintiff. Id. at 887.

Based upon the preceding discussion, we conclude that it is an established principle -of Florida law that parties are entitled to have an attorney present at examinations conducted pursuant to Florida Rule of Civil Procedure 1.360, regardless of whether the examination is a physical, psychiatric or psychological one, unless the party seeking to prevent the attorney’s presence establishes (1) a case-specific reason why the attorney’s presence would disrupt the examination and (2) that no other qualified individual in the area would be willing to conduct the examination with the attorney present. As is clear from the supreme court’s opinion in Cimino as well as from numerous district court opinions, the purpose underlying this principle of law is to protect plaintiffs from improprieties that might otherwise be committed by the examiners, who are retained by the defendant and who frequently end up testifying as expert witnesses on behalf of the defendant. U.S. Sec. Ins. Co. v. Cimino, 754 So.2d at 701-02 (noting, among other things, that “[t]he concerns of physicians for conducting examinations without the distraction of third persons cannot outweigh the [examinee’s] rights”). Accord Chavez v. J & L Drywall, 858 So.2d 1266, 1268-69 (Fla. 1st DCA 2003); Wilkins v. Palumbo, 617 So.2d at 852-53; Toucet v. Big Bend Moving & Storage, Inc., 581 So.2d 952, 953-54 (Fla. 1st DCA 1991); Bartell v. McCarrick, 498 So.2d at 1379-80.

As was true of his testimony in Freeman, Dr. Smith’s affidavit in this case provides no “case-specific reason” why the presence of Byrd’s attorney would disrupt or distort the examination. The affidavit relies, instead, on representations regarding the “standard of practice among neuropsychologists,” references to texts and conclusory statements. Accordingly, Southern Prestressed failed to satisfy the first part of the applicable test. However, even if this were not the case, Southern Prestressed made no effort .to satisfy the second part of that test because it presented no evidence to suggest that no other qualified individual in the area would be willing to conduct the examination with Byrd’s attorney present. In fact, at the hearing in the trial court Byrd’s attorney represented without contradiction that there were at least two other qualified individuals in the area who were willing to perform examinations under such circumstances. As a result, we conclude that Byrd has demonstrated that, to the extent the trial court’s order prohibits Byrd’s attorney from being present, the order constitutes a departure from the essential requirements of the law which, unless corrected, will result in material injury for the remainder of the case.

To be entitled to the relief he requests, however, Byrd must also demonstrate that the injury'is one that cannot be corrected by an appeal after the entry of a final order disposing of the case at the trial level. On this point, we agreé with the Fifth District’s conclusion in Lunceford v. Florida Central Railroad Co., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999), that such an order will cause irreparable harm because it would be virtually impossible in an appeal following entry of a final order to demonstrate how the absence of the requested third party affected the outcome of the examination. See also Taylor v. Columbia/HCA Doctors Hosp., 746 So.2d 1244, 1245 (Fla. 1st DCA 1999) (stating that, “[i]n the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal”). Accordingly, we further conclude that Byrd has demonstrated that the injury is one that cannot be corrected by -an appeal after the entry of a final order disposing of the case at the trial level. We note that virtually all of the cases discussed in this opinion reached the appellate court by a petition for a writ of certiorari. ■

We grant the petition for a writ of cer-tiorari and quash the trial court’s order to the extent it prohibits Byrd’s attorney from being present (albeit out of Byrd’s sight) at the psychological examination. As the court said in Cimino, “[o]f course, the attorney’s presence during the examination is premised upon a requirement that the attorney not interfere with the doctor’s examination.” 754 So.2d at 701. Should such interference occur, appropriate steps may be taken by the trial court to afford the doctor a reasonable opportunity to complete his examination. See Bartell v. McCarrick, 498 So.2d at 1380.

PETITION FOR WRIT OF CERTIO-RARI GRANTED.

BARFIELD, J., concurs; BENTON, J., concurs in result.


text:
    Richard KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1229.
    District Court of Appeal of Florida, First District.
    May 2, 2006.
    Richard Kelly, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

As the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989) (holding that lack of access to a law library is an insufficient ground for failing to timely file the notice of appeal).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    B.L.G., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-1447.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    Robert Wesley, Public Defender, and Olga M. Telleria-Khoudmi, Assistant Public Defender, Orlando, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

B.L.G., a juvenile, petitions for a writ of habeas corpus, contending that she is being unlawfully detained in secure detention despite a risk assessment instrument score of zero, and that she does not otherwise satisfy the requisites for secure detention. We agree and grant the petition.

On April 27, 2006, the juvenile, who was charged with violating her probation, was placed in secure detention for a period not to exceed 21 days. The judge did not provide any written reasons explaining why he selected a more restrictive placement than that indicated by the risk assessment instrument. If a child has been charged with violating probation, he or she may continue to be held in a consequence unit or home detention upon order of the court, but in the absence of additional clear and convincing reasons the child may not be placed in secure detention. See § 985.215(2)(h) and (j), Fla. Stat. (2005). Accordingly, the petition for writ of habeas corpus is hereby granted and petitioner shall be immediately released from secure detention. See T.D.S. v. State, 922 So.2d 346 (Fla. 5th DCA 2006); C.D.T. v. State, 920 So.2d 787 (Fla. 5th DCA 2006).

PETITION GRANTED.

SAWAYA, TORPY, and LAWSON, JJ., concur.


text:
    Ricardo L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-598.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.

      Ricardo L. Johnson, Chipley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Johnson v. State, 875 So.2d 633 (Fla. 5th DCA 2004); Brown v. State, 813 So.2d 132 (Fla. 5th DCA 2002).

SHARP, W., TORPY and LAWSON, JJ., concur.


text:
    Horace HANKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3646.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    Horace L. Hankérson, Madison, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Breedlove v. Singletary, 595 So.2d 8 (Fla.1992).

PLEUS, C.J., SHARP, W. and MONACO, JJ., concur.


text:
    Daniel W. BROWN, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3138.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    Daniel W. Brown, Sr., Polk City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. McBride, 848 So.2d 287, 290 (stating that law of the case doctrine applies when the issues are decided on appeal).

PLEUS, C.J., THOMPSON and SAWAYA, JJ., concur.


text:
    Raleigh AMESBURY, Appellant, v. FLORIDA FISH AND WILDLIFE CONSERVATION, etc., et al, Appellees.
    No. 5D05-2734.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    Raleigh Amesbury, Ocala, pro se.
    William H. Crawford ' of Thompson, Crawford & Smiley, P.A., Tallahassee, for Appellee Florida Fish & Wildlife Conservation.
    John M. Green, Jr. of Green & Bradshaw, P.A., and Loren E. Levy of The Levy Law Firm, Tallahassee, for Appellee Ed Dean, Sheriff of Marion County, Florida.
   PER CURIAM.

AFFIRMED. See Behm v. Campbell, 925 So.2d 1070 (Fla. 5th DCA 2006).

GRIFFIN, THOMPSON, and ORFINGER, JJ., concur.


text:
    David Tyrone GAYMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2133.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.
    John L. Woodard, III, Fern Park, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State ex rel. Gutierrez v. Baker, 276 So.2d 470 (Fla.1973).

PLEUS, C.J. SHARP, W., and TORPY, JJ., concur.


text:
    Mark Christopher SCOTT, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1302.
    District Court of Appeal of Florida, Fifth District.
    May 2, 2006.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


author: THOMAS, J.

text:
    DOLLAR GENERAL CORPORATION and Dollar General Risk Management, Appellants, v. Linda MacDONALD, Appellee.
    No. 1D05-2204.
    District Court of Appeal of Florida, First District.
    May 3, 2006.

      Curt L. Harbsmeier and Jeffrey E. Ap-pel of Harbsmeier, DeZayas, Appel, Harden & DeBari, LLP, Lakeland, Attorneys for Appellants.
    Robert Wohn, Cocoa; and Bill McCabe of Shepherd, McCabe & Cooley, Long-wood, Attorneys for Appellee.
   THOMAS, J.

This is an appeal of a final order of the Judge of Compensation Claims (“JCC”) awarding Appellee/Claimant (“Claimant”) treatment for “all medically necessary and causally related cervical spinal conditions stemming from [her injury on March 1, 2003.]” Because we find that the award is not supported by competent and substantial evidence, we reverse.

Claimant suffered two injuries during her employment as an assistant manager with Appellant Dollar General Stores. Claimant’s first injury occurred on or about March 1, 2003, and her second injury occurred on August 13, 2003.' Claimant’s petition for benefits was based solely on her first injury and listed the date of injury as March 1, 2003. Claimant’s petition asserted that this injury was the cause of her need for treatment and listed her injuries as “back, neck, hands, and wrist.” However, in her testimony, Claimant stated that she did not experience any neck or hand pain until August 13, 2003, when she picked up seven or eight 20-pound boxes of tile for a customer.

Claimant saw Dr. Richard Hynes for an independent medical examination before the merits hearing. Following the examination, Dr. Hynes diagnosed a complex disk problem. Dr. Hynes explained that, in his opinion and within a reasonable degree of medical certainty, Claimant suffered from an underlying degenerative disk, and she herniated that disk after picking up the boxes of tile on August 13, 2003, riot in March.

Because Dr. Hynes testified that Claimant had an underlying degenerative disk, it was necessary for the JCC to determine the major contributing cause of Claimant’s neck condition. Under section 440.09(l)(b), Florida Statutes (2002),

[i]f an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause .... need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of ... need for treatment.

This court has interpreted “major contributing cause” to mean the cause that contributes “more to the claimant’s ... need for treatment than any other single cause.” Closet Maid v. Sykes, 763 So.2d 377, 383 (Fla. 1st DCA 2000) (en banc).

The JCC found that Dr. Hynes was in the best position to provide an opinion as to the major contributing cause of Claimant’s injury. Dr. Hynes testified that Claimant’s continued work with her employer could have made her condition worse. In addition, Dr. Hynes stated that Claimant may have experienced some neck and back pain prior to August 2003. Dr. Hynes’s medical opinion, however, was that Claimant’s herniated disk injury was caused by the specific August incident. Dr. Hynes stated that, hypothetically, an injury such as Claimant’s could be due to repetitive trauma, but that, “clearly from how the patient describes her injury, specifically lifting seven or eight boxes of 20-pound tiles and immediate onset of increasing and significant pain, that’s likely when she actually ruptured [her disk].” Finding that no other medical evidence rebutted Dr. Hynes’s testimony, the JCC stated that “it was Dr. Hynes opinion that Claimant’s herniated disk had been caused by the heavy work and repetitive heavy lifting at her work.”

The standard of review in a workers’ compensation case is whether competent, substantial evidence supports the JCC’s ruling. Jefferson v. Wayne Dalton Corp./Hartford, 793 So.2d 1081, 1083 (Fla. 1st DCA 2001). Therefore, a JCC’s conclusion as to factual issues will be affirmed if the record provides competent, substantial evidence to support it. Trujillo v. Southern Wine & Spirits, 525 So.2d 481, 483 (Fla. 1st DCA 1988). Here, we find that the record does not contain competent, substantial evidence to support the JCC’s conclusion that Claimant’s neck injury was caused by her March 2003 injury.

Because Claimant’s herniated disk and neck pain were not readily observable injuries, Claimant was required to produce medical evidence as to the cause of her injuries. See Closet Maid, 763 So.2d at 382. While Claimant provided historical medical evidence, the JCC found no evidence that rebutted Dr. Hynes’s opinion regarding the cause of Claimant’s injury. Therefore, the only medical evidence upon which the JCC based his award failed to support a conclusion that Claimant was entitled to treatment for an injury that occurred in March 2003.

A JCC may consider lay testimony in addition to medical evidence to determine major contributing cause. See Louisiana Pacific Corp. v. Harcus, 774 So.2d 751, 755 (Fla. 1st DCA 2000). However, the only lay testimony admitted here as substantive evidence was Claimant’s live testimony at the hearing. Her testimony supported Dr. Hynes’s conclusion because Claimant testified that she did not have any neck pain prior to August 13, 2003.

We have considered whether Claimant and Employer/Carrier (“E/C”) tried by consent the issue of Claimant’s August injury. An issue in a workers’ compensation case may be tried by consent of the parties even if the issue was not listed in the claimant’s original petition for benefits. Lakeside Baptist Church v. Jones, 714 So.2d 1188, 1190 (Fla. 1st DCA 1998). However, we find that Claimant and E/C did not try by consent the issue of Claimant’s August injury. Claimant and E/C jointly stipulated that Claimant’s accident occurred on March 1, 2003, and E/C specifically defended that Claimant’s cervical injury did not arise out of the March accident.

Because the record does not contain competent, substantial evidence to support the treatment award relative to Claimant’s March 2003 injury, and because the parties did not try by consent the issue of Claimant’s August injury, we reverse the JCC’s order awarding treatment for Claimant’s cervical condition.

REVERSED.

KAHN, C.J., and PADOVANO, J., concur.


author: BROWNING, J.

text:
    E.S., father of J.S., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D05-4563.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Pro se, for Appellant.
    L. Ann Hendricks, Assistant General Counsel, for Appellee.
   BROWNING, J.

E.S. (Appellant), who is the incarcerated father of a minor child, J.S., appeals the circuit court’s order denying his petition for writ of habeas corpus. The gravamen of Appellant’s petition is that his attorney, who was appointed by the trial court to represent him in the civil proceedings that led to the adjudication of J.S. as dependent and the placement of the child in long-term relative custody, was ineffective. The trial court denied the petition pursuant to S.B. v. Dep’t of Children & Families, 851 So.2d 689 (Fla.2003). In that decision, the Supreme Court of Florida stated:

We conclude that in civil dependency proceedings which do not involve the possibility of criminal charges against the parent or the permanent termination of parental rights, there is no right to pursue a collateral proceeding questioning the competency of court-appointed counsel.

Id. at 694. Because the civil dependency proceedings relating to J.S. and Appellant did not involve the possibility of criminal charges against Appellant or the permanent termination of his parental rights, Appellant had no right to pursue the collateral attack on his counsel’s performance. Accordingly, the order denying the petition for writ of habeas corpus is AFFIRMED.

WOLF and WEBSTER, JJ., concur.


text:
    Roosevelt HALL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1533.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Roosevelt Hall, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    CITRUS COUNTY SCHOOL BOARD and Florida School Board Insurance Trust, Appellants, v. Eunice CARLUCCI, Appellee.
    No. 1D05-2558.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Pamela J. Cox and Jodi K. Mustoe of Cox and Rouse, P.A., Maitland, for Appellants.
    William H. Yanger, Jr., Tampa, for Ap-pellee.
   PER CURIAM.

The Judge of Compensation Claims applied the 120-day pay and investigate provision of section 440.20(4), Florida Statutes, to the claimant’s entitlement to further benefits under section 440.09(l)(b), Florida Statutes. This was error. See Checkers Rest v. Wiethoff, 925 So.2d 348, 351 (Fla. 1st DCA 2006) (“[S]ection 440.20(4) does not preclude the E/C from challenging the claimant’s entitlement to benefits, by contending that the injuries resulting from the industrial accident were not the MCC of the claimant’s need for further treatment or surgery. Indeed, the JCC found that claimant has reached maximum medical improvement with no permanent impairment rating, and that the industrial injuries are no longer the MCC of any continuing need for treatment or surgery. ... Therefore, the claimant is no longer entitled to medical benefits. See § 440.09(l)(b), Fla. Stat.” (emphasis added)).

Here, the JCC properly found the industrial accident was not the major contributing cause of Claimant’s need for further treatment. Instead, the facts credited by the JCC show that such treatment was attributable to a pre-existing condition.

REVERSED.

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


text:
    Karen POLLETT, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D05-2875.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Pro se, for Appellant.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   BROWNING, J.

Appellant' seeks review of the dismissal of her claim for unemployment benefits as untimely. We reverse and remand for a hearing to determine whether the lateness of the filing is attributable to the Unemployment Appeals Commission.

Appellant’s request for unemployment benefits was initially denied on the ground that she was “not able and available for work as required by law.” She requested a hearing, but after that hearing the referee affirmed the denial of benefits. Appellant appealed the denial to the Commission four days after the deadline to appeal. In response to the Commission’s order to show cause why the appeal should not be dismissed as untimely, Appellant alleged that because she did not understand the referee’s order, she called the Commission’s claims information number. She alleged that she was told she had been awarded benefits, which would be sent by direct deposit within two weeks. She further alleged that after waiting and receiving no money, she called again and was finally informed that her claim had been denied. Thereafter and without a hearing, the Commission dismissed the appeal as untimely.

Although there is neither a statutory nor a “good cause” exception to the time limits for appeals to the Commission, there is an exception, based on due process and fairness concerns, where the delay in filing the notice of appeal “was occasioned by the actions of the Commission.” Thurman v. Florida Unemployment Appeals Comm’n, 881 So.2d 89, 91 (Fla. 1st DCA 2004). The desired remedy is an eviden-tiary hearing to determine whether the lateness is attributable to the Commission. E.g., Applegate v. Nat’l Health Care Affiliates, Inc., 667 So.2d 382 (Fla. 1st DCA 1995). Here, Appellant is entitled to a hearing to determine whether she received erroneous information, and if she did, what bearing the erroneous information had on the timeliness of her appeal.

Accordingly, we REVERSE and REMAND for an evidentiary hearing.

BARFIELD and THOMAS, JJ., concur.


author: STEVENSON, C.J.

text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, Appellant, v. Victoria MAHLER, et al., Appellees.
    No. 4D04-2801.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.

      Paul R. Regensdorf of Stearns Weaver Miller Weissler Alhadeff & Sitterson, P.A., Fort Lauderdale, and Roberta Kohn and Joseph J. Cireelli of Echevarria, Codilis & Stawiarski, P.A., Tampa, for appellant.
    Cary A. Lubetsky, Joseph J. Huss and Amelia Gonzalez of Krinzman, Huss <& Lu-betsky, Miami, for appellees Everett and Joshlyn Daley.
   On Motions for Rehearing, Rehearing En Banc, Clarification & Certification as a Question of Great Public Importance

STEVENSON, C.J.

We grant the motion for rehearing, deny all other motions, withdraw our prior opinion, and substitute the following in its place. Appellant, Mortgage Electronic Registration Systems (MERS), appeals the trial court’s order finding that Everett and Joshlyn Daley (the Daleys) satisfied the final judgment of foreclosure and are bona fide purchasers of the property in question. We reverse because the Daleys failed to satisfy the foreclosure judgment pursuant to Florida Statutes section 701.04 and were not bona fide purchasers.

MERS was the holder of a recorded mortgage and the note the mortgage secured. Pursuant to the mortgage, the mortgagor was responsible for paying the taxes, insurance premiums, and amounts necessary to preserve the property. Ap-pellee, Victoria Mahler, had legal title to the property until she sold it to the Daleys in the midst of the foreclosure proceedings. The validity of the Daleys’ ownership is the subject of this lawsuit.

On January 9, 2003, MERS filed a mortgage foreclosure action against Mahler. The final judgment of foreclosure was for a sum of $213,986.73 plus,

subsequent interest at the statutory rate and such further costs as may be incurred by the Plaintiff in this action, including, but not limited to, the sale fee and publication of the Notice of sale, and any reasonable advances made by the Plaintiff subsequent to the date of execution of the Affidavit of Indebtedness filed in this action which are proper under the terms of the note and mortgage foreclosed herein.

Prior to the foreclosure sale, the trial court issued a “Satisfaction of Judgment by the Clerk of the Circuit Pursuant [to] Section 55.141” to the Daleys. On January 29, 2004, the trial court vacated the satisfaction because the amount paid did not equal the $230,540.90 to which MERS claimed it was entitled. The court further ordered the foreclosure sale if the additional $7,581.85 was not paid into the court registry. Following the sale, Synergy Investment Group, Incorporated, the successful bidder, requested the trial court determine the validity of its certificate of title.

The Daleys moved to intervene, alleging they were bona fide purchasers of the property because their closing agent utilized section 55.141, Florida Statutes, to satisfy the judgment after unsuccessfully attempting to obtain payoff information from MERS. The trial court found the Daleys were denied due process because MERS submitted its motion to vacate the satisfaction ex parte. The court vacated Synergy Investment Group’s certificates of sale and title and ordered the clerk to issue a new satisfaction of judgment in favor of the Daleys.

On appeal, MERS argues that section 55.141 is inapplicable to foreclosure judgments and that section 701.04, entitled “Cancellation of mortgages, liens, and judgments,” controls. We agree. Section 55.141(1) provides:

All judgments and decrees for the payment of money rendered in the courts of this state and which have become final, may be satisfied at any time prior to the actual levy of execution issued thereon by payment of the full amount of such judgment or decree, with interest thereon, plus the costs of the issuance, if any, of execution thereon into the registry of the court where rendered.

In contrast, section 701.04 directs the mortgagor to request in writing the amount of the unpaid principal balance and specifies the mortgagee’s duties after receiving the request and the amount satisfying the judgment. Section 55.141, by its very terms, applies to a judgment for “the payment of money.” A foreclosure judgment includes the payment of money, but also involves other rights and remedies intertwined with the subject property itself. See Fla. R. Civ. P. 1.996. Further, it is well-established that “ ‘a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in' more general terms.’ ” Stoletz v. State, 875 So.2d 572, 575 (Fla.2004) (quoting McKendry v. State, 641 So.2d 45, 46 (Fla.1994)).

Although the Daleys contend they requested payoff information, there was no evidence they made a written request in accordance with section 701.04. Furthermore, the amount the Daleys paid did not include compensation for all of the allotted expenses and advances provided for in the final judgment. Instead, as stated in the Satisfaction of Judgment, the Daleys’ closing agent calculated the amount owed to MERS by adding $213,786.73 to the amount of accrued interest. We therefore find the Daleys failed to satisfy the judgment.

The Daleys’ reliance on Bee Bee Medical Center, Inc. v. Strategic Consulting & Managing, Inc., 677 So.2d 84 (Fla. 2d DCA 1996), for the proposition that the additional costs were not part of the foreclosure judgment is misplaced. In that case, a final judgment of foreclosure was entered for $125,000 plus interest in favor of Strategic Consulting; the trial court reserved jurisdiction to award attorney’s fees and costs. Id. After Bee Bee Medical Center paid the clerk of court $125,000 plus interest to exercise its redemption rights under section 45.0315, Florida Statutes (1993), the trial court stayed the issuance of the satisfaction because the amount paid did not include attorney’s fees and costs. Id. The Second District reversed the lower court’s decision, finding the appellants satisfied the judgment by-paying the amount of the foreclosure judgment. Id. at 85. The court noted that the mortgagors should not be prevented from exercising their redemption rights due to the mortgagee’s failure to include fees and costs in the final judgment.

The instant case does not involve a mortgagor’s right of redemption under section 45.0315. Additionally, the foreclosure judgment here unequivocally authorized MERS to receive the additional costs and expenses incurred subsequent to the affidavit of indebtedness.

As a result of their knowledge of the foreclosure judgment, we hold the Daleys are not bona fide purchasers. To have qualified as bona fide purchasers, there must have been an absence of notice, either actual or constructive, that the foreclosure judgment included a sum greater than the total sum of $213,786.73 and the accrued interest. See Pearlman v. Nat’l Bank of New York City, 600 So.2d 5, 7 (Fla. 4th DCA 1992) (referencing Freedom Sav. & Loan Ass’n v. Horton, 553 So.2d 1335, 1336-37 (Fla. 1st DCA 1989)).

Based on the foregoing, we hold the trial court erred in finding that Everett and Joshlyn Daley were bona fide purchasers of the property, in reinstating the satisfaction of judgment, and in vacating the writ of possession, and the certificates of sale and title in favor of Synergy Investment Group. We hereby reverse the trial court’s order and remand this case to the trial court for further proceedings in accordance with this opinion.

Reversed and Remanded.

TAYLOR and HAZOURI, JJ., concur.

      . Section 45.0315 provides "[a]t any time before the later of the filing of a certificate of sale by the clerk of the court or the time specified in the judgment, order, or decree of foreclosure, the mortgagor ... may cure the mortgagor’s indebtedness and prevent a foreclosure sale by paying the amount of moneys specified in the judgment, order, or decree of foreclosure....”


text:
    Hartman LIGHTBOURNE, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D06-711.
    District Court of Appeal of Florida, Third District.
    May 3, 2006.
    Hartman Lightbourne, in proper person.
    Charles J. Crist, Jr., Attorney General, for respondent.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

Hartman Lightbourne seeks a second belated appeal from a judgment and sentence rendered January 31, 2005. This court denies the second petition for belated appeal. See Lightbourne v. State, 920 So.2d 776 (Fla. 3d DCA 2006).


author: KAHN, C.J.

text:
    STATE of Florida, Petitioner, v. Ricky TAYLOR, Respondent.
    No. 1D05-2394.
    District Court of Appeal of Florida, First District.
    May 4, 2006.

      Charlie Crist, Jr., Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Petitioner.
    Bill White, Public Defender, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for Respondent.
   KAHN, C.J.

The State has filed a petition for writ of certiorari seeking review of an order by the trial court denying the State’s motion in limine. Because we cannot say that the trial court’s ruling departed from the essential requirements of law, we deny the petition.

BACKGROUND

Respondent, Ricky Taylor, was charged with two counts of sexual battery by a person 18 years of age or older upon a person less than 12 years old and one count of lewd or lascivious molestation of a child less than 12 years old. Taylor deposed the victim, E.V., then thirteen years old. The State subsequently filed a motion in limine seeking to prohibit Taylor from presenting “any and all argument, testimony or evidence regarding prior sexual allegations made by the victim” against her biological father. In the motion, the State indicated that it believed, “at the trial, the Defendant will attempt to introduce evidence, make reference to, argue, or otherwise suggest that the victim, [E.V.], has made prior sexual allegations against her biological father.” The State asserted that the prejudicial effect of such evidence outweighs its probative value. The State further asserted, “It is contrary to the rules and laws governing the Courts of the State of Florida to permit such evidence or inference, and would be highly prejudicial to the State in the minds of the jury because the charges against the victim’s biological father ... were not filed by the State Attorney’s Office,” so “the jury may infer that the victim, [E.V.], either recanted from her allegations against [her biological father], or that [her biological father] was falsely accused.”

A hearing took place on this motion and E.V. testified at this hearing. At the conclusion of the hearing, the court ruled: [A]fter having the child testify here in court the Court is satisfied that the— that under the — under nay understanding of the definitions to recant as provided by the state in their case of the Department of Health and Rehabilitative Services versus MB which was cited at 701 So.2d 1155 which was a Florida Supreme Court case, I believe, the — to recant is to withdraw or repudiate formally or publically, and we have the real time system here and the child’s words were to the Court that the — I can go back and get them exactly. That’s the best way to do this.

The child at least in two places during today’s hearing said that something along the lines that she — she thought she might have told somebody that it didn’t happen, meaning that the — -that the allegations against her biological father didn’t happen but she didn’t remember who she had told, and based on that testimony the Court finds that the — that that would be sufficient to bring that information before the — before the jury. Therefore, I am denying the state’s — entitled state’s first Motion in Limine.

Is there anything else that either side wants in the record for your appeal?

MS. AGENT [Assistant State Attorney]: Your Honor, we would just note for the record based on the status of this case in that our evidence would rely almost entirely upon the credibility of the child in this case, [E.Y.], which is the child that’s in issue in the state’s motion in limine one, we would find that the Court’s ruling devastating to our ability to prosecute the case at this time and seriously curtail our ability to prosecute the case and that’s why we would seek an appeal the Court’s order.

The court subsequently rendered a written order denying the State’s motion in limine “as to recantation.”

ANALYSIS

As the State argues, the trial judge may have erred in finding a recantation had occurred. E.Y. did not testify that her father did not abuse her, only that she might have told someone that he did not; she consistently maintained that the abuse had occurred. See Dep’t of HRS v. M.B., 701 So.2d 1155, 1163 (Fla.1997) (“To recant is ‘[t]o withdraw or repudiate formally and publicly.’ Significantly, D.W. did not testify that her stepfather did not abuse her, only that ‘someone’ had sexually assaulted her. She did not deny her previous statements. Therefore, her trial testimony certainly did not exonerate her stepfather .... ” (citations omitted)).

Assuming, for the sake of argument, that the trial judge erred in this regard, such error does not rise to the level to warrant certiorari review. See State v. Pettis, 520 So.2d 250, 253-54 (Fla.1988) (“We agree that the trial judge below erred in permitting the police officer to be questioned concerning unrelated reprimands. However, we cannot say that the ruling was a departure from the essential requirements of law.” (citations omitted)); State v. Sowers, 763 So.2d 394, 399 (Fla. 1st DCA 2000) (“To be entitled to certiora-ri relief, the State must demonstrate that the trial court’s order amounts to a violation of a clearly established principle of law, resulting in a miscarriage of justice.”); State v. Keel, 557 So.2d 907, 907-08 (Fla. 1st DCA 1990) (citing Pettis and concluding that State had not carried its burden “to demonstrate that the lower court’s ruling constituted a departure from the essential requirements of law”). “While some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where ‘there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Pettis, 520 So.2d at 254 (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983).).

The State sought exclusion of this evidence on the basis that its prejudicial effect outweighed its probative value. Such determinations are left to the discretion of the trial judge in the absence of clear legal error. See, e.g., Stephens v. State, 787 So.2d 747, 759 (Fla.2001) (“Under section 90.403, Florida Statutes (1997), relevant testimony may be excluded if the probative value of the evidence is substantially outweighed by the likelihood of unfair prejudice. However, the trial court should be given wide discretion in determining whether the evidence is unduly prejudicial.”); Mansfield v. State, 758 So.2d 636, 648 (Fla.2000) (“We review a trial court’s ruling on a section 90.403 objection on an abuse of discretion standard. In making its determination the trial court must weigh the danger of unfair prejudice against the probative value, and in doing so proper considerations include ‘the need for the evidence; the tendency of the evidence to suggest an improper basis to the jury for resolving the matter, e.g., an emotional basis; the chain of inference necessary to establish the material fact; and the effectiveness of a limiting instruction.’ ” (citations omitted)); Sims v. Brown, 574 So.2d 131, 133 (Fla.1991) (“The weighing of relevance versus prejudice or confusion is best performed by the trial judge who is present and best able to compare the two.”).

No clear legal error has occurred here, particularly where there is no context in which to view the testimony as no trial has yet taken place. Cf. Reeves v. State, 862 So.2d 60, 61 (Fla. 1st DCA 2003) (affirming conviction and finding trial court did not err in granting State’s motion in limine which prevented appellant from cross-examining victim regarding alleged prior false accusations of sexual misconduct she had made against her father). Indeed, the fact that no trial has yet taken place distinguishes this case from those cited by the State, all of which involve direct appeals by a defendant following a conviction. See Reeves, 862 So.2d at 60; Cliburn v. State, 710 So.2d 669 (Fla. 2d DCA 1998); Jaggers v. State, 536 So.2d 321 (Fla. 2d DCA 1988). These cases also involve admittedly false prior accusations by victims and/or witnesses, another factor that differs from this case.

The State argues that this court’s decision in Reeves is controlling here. We do not believe, however, that a case finding an evidentiary error on direct appeal following a conviction must necessarily control review, by our certiorari jurisdiction, of an order on a motion in limine. In Reeves, the trial court had granted the State’s motion in limine and disallowed cross-examination of the child victim “regarding alleged false prior accusations of sexual misconduct that she had made against her father.” Id. at 61. This court affirmed the trial court’s ruling because the victim had not recanted her statements and, thus, the court found inapplicable the exceptions recognized by the Second DCA in cases such as Clibum and Joggers. Id. The court specifically declined to address “whether such an exception is appropriate.” Id. Reeves is an affirmance of a trial court’s discretionary ruling to exclude evidence, a decision reviewed here, of course, under the abuse of discretion standard. Such standard can scarcely be compared to the rigid certiorari test. That the Reeves court specifically declined to address the Second DCA’s exception for “pri- or false accusations” does not mean that such testimony is never admissible.

Finally, even if a recantation did not occur, the judge could arguably still have decided to allow the testimony at issue as relevant to the witness’s credibility, bias, motive, or interest. See Jaggers, 536 So.2d at 327 (“Evidence that is relevant to the possible bias, prejudice, motive, intent or corruptness of a witness is nearly always not only admissible, but necessary, where the jury must know of any improper motives of a prosecuting witness in determining that witness’ credibility. That is particularly true in the case of allegations of sexual abuse where there is no independent evidence of the abuse and the defendant’s sole defense is either fabrication or mistake on the part of the alleged victims.”). We emphasize that our denial of certiorari is not a decision on the merits.

DENIED.

LEWIS and POLSTON, JJ., concur.


text:
    Clifford Leon REID, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0609.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Clifford Leon Reid, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004). All pending motions are denied as moot.

WEBSTER, DAVIS, and LEWIS, JJ., Concur.


text:
    Willie Joe WILLIAMS, Petitioner, v. STATE of Florida. Respondent.
    No. 1D06-1304.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Willie Joe Williams, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

To the extent petitioner presents a claim of ineffective assistance of appellate counsel, that claim and his claim for mandamus relief are denied on the merits. To the extent the petition otherwise attempts to state a claim for habeas corpus relief, we dismiss that claim as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


text:
    Derrell TURNER, Petitioner, v. STATE of Florida. Respondent.
    No. 1D06-1433.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Derrell Turner, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    Alexander GUERRERO, Petitioner, v. Charles McRAY, Director, Miami-Dade County Corrections and Rehabilitation Department; and The State of Florida, Respondents.
    No. 3D06-1069.
    District Court of Appeal of Florida, Third District.
    May 4, 2006.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Valentina M. Tejera, Assistant Attorney General, for respondents.
    Before'GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Alexander Guerrero seeks habeas corpus relief from his detention and bond set at $10,000.00 pending his trial on a charge of making a false insurance claim and grand theft. We grant the petition because the trial court was without authority to increase Guerrero’s bond on its own.

The trial court set a bond of $8,500.00 after which the State sought an enhanced penalty. Based upon the State’s notice to seek the enhanced penalty, the trial court sua sponte, citing to Calixtro v. McCray, 858 So.2d 1079 (Fla. 3d DCA 2003), increased Guerrero’s bond from $3,500.00 to $10,000.00. Guerrero objected to the trial court’s action and requested three hours to prepare a response against the increased bond. The trial court denied Guerrero’s request, granted his motion to conduct a bond hearing, and then increased the bond to $10,000.00.

As the State properly confesses, Calix-tro permits the modification of a bond following a change in a defendant’s penalty, such as when a notice of enhancement is filed after bond has already been set, but there is no authority to support the trial court’s sua sponte action increasing Guerrero’s bond. We therefore grant the petition for writ of habeas corpus.

This opinion shall take effect immediately notwithstanding of the filing of any motion for rehearing.

Petition granted.


text:
    James GALLON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1294.
    District Court of Appeal of Florida, First District.
    May 5, 2006.
    James Gallon, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

DAVIS, POLSTON, and THOMAS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Jabulani SEAY, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-690.
    District Court of Appeal of Florida, Second District.
    May 5, 2006.
   ALTENBERND, Judge.

Jabulani Seay appeals an order denying his motion for proper jail credit, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Mr. Seay was placed on three years’ probation in case number 03-6974 and case number 04-7889 at the same sentencing hearing on December 7, 2004. Thereafter, he violated his probation by committing a new substantive offense, case number 05-11298. He was sentenced for the new offense and for the two violations of probation on October 17, 2005. He received jail credit for the period between June 10, 2005, and October 17, 2005, in cases numbered 03-6974 and 05-11298, but not in case number 04-7889. This case appears to involve the same scrivener’s error as occurred in Tinker v. State, 870 So.2d 79 (Fla. 2d DCA 2003). Accordingly, we reverse and remand for further proceedings consistent herewith.

Reversed and remanded.

STRINGER and SILBERMAN, JJ„ Concur.


text:
    STATE of Florida, Appellant, v. Vidal SANTIAGO, Appellee.
    No. 5D05-2162.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The State appeals from an order finding that double jeopardy bars Defendant Vidal Santiago from being retried for the murder of a fellow prison inmate, following a defense-requested mistrial. We reverse.

“The general rule is that when a mistrial is declared upon the defendant’s motion ... jeopardy does not attach and the defendant may be retried.” Rutherford v. State, 545 So.2d 853, 855 (Fla.1989) (citing McLendon v. State, 74 So.2d 656 (Fla.1954); State ex rel. Larkins v. Lewis, 54 So.2d 199 (Fla.1951)). “An exception occurs when the prosecution goads the defense into moving for a mistrial and gains an advantage from the retrial.” Id. (citing Oregon v. Kennedy, 456 U.S. 667, 102 S.Ct. 2083, 72 L.Ed.2d 416 (1982)).

The defense argues several alleged instances of prosecutorial misconduct in support of its position. In the first, a witness volunteered information barred by a pretrial ruling in response to a prosecutor’s question that was clearly not calculated to elicit the improper response. In the second, the prosecutor asked a key eyewitness for a lay opinion. Under the circumstances, we believe the lay opinion was admissible. See §§ 90.701; 90.703, Fla. Stat. (2005).

The witness in question was another inmate, Eric Durant. Durant testified that he saw Santiago pull a “shank” from his sock shortly before the victim (Durant’s friend) was stabbed. Then, Durant saw Santiago holding the victim’s shoulder while facing the victim. At the same time, he heard “a pow ... a loud sound like when you make contact with somebody.” The victim then immediately “flinched down to the side” and Santiago “took off and ran.” Concluding from all of these sights and sounds that he had witnessed Santiago stab his friend, Durant immediately began chasing Santiago through the prison yard with a shovel. Because Durant did not see a knife in Santiago’s hand during the alleged stabbing, or see the knife enter and exit the victim’s body; the defense argued that Durant’s conclusion that he had witnessed Santiago stab his friend constituted improper speculation. We disagree. Section 90.701, Florida Statutes, allows an eyewitness to explain “what he or she perceived ... in the form of inference or opinion” when the witness cannot readily and with equal adequacy communicate his or her perceptions without testifying in terms of inferences and opinions. Durant’s conclusion is precisely the type of evidence admissible under this provision. The trial court allowed the opinion testimony, but later granted a mistrial after concluding (during jury deliberations) that it had erred in overruling the defense’s objection:-

Our review of the record convinces us that the prosecutor’s motive for eliciting the- testimony was simply to introduce evidence that he believed to be both relevant and admissible. “As there was no goading the defense into moving for a mistrial, the Oregon v. Kennedy exception does not apply.” Rutherford, 545 So.2d at 856. Therefore, the trial court erred in holding that double jeopardy barred Santiago’s retrial. Id.

REVERSED.

ORFINGER, LAWSON, JJ., and FALVEY, C., Associate Judge, concur.

      . It should be apparent that a witness's inappropriate testimony, not responsive to the question posed, does not evidence an intent by the prosecutor to provoke a mistrial. E.g., Cooper v. State, 716 So.2d 823 (Fla. 5th DCA 1998). However, we find the prosecutor’s responses to the trial court's inquiry troubling. First, the prosecutor stated that even though he did not intend to elicit the barred testimony, the pre-trial ruling on the motion in limine was not binding because the ruling was made by another judge. This argument was clearly misguided. If the prosecutor wanted the successor judge to revisit the issue, he could have argued an appropriate motion before the witness took the stand. Having failed to do so, the previous judge’s order was fully binding. Second, the prosecutor did not bother to explain the pre-trial ruling to the witness before calling him. Instead, the prosecutor explained that he trusted law enforcement witnesses to confine their answers to the questions asked so that he could avoid the improper testimony by simply avoiding any question that would directly call for an answer including the barred evidence. Obviously, this approach did not work. The prosecutor is cautioned that professionalism demands that he review matters barred from evidence by court order with any affected witness before calling that witness to the stand.

      . Durant and Santiago were apprehended by prison guards before Durant reached Santiago. However, charges were filed against Durant for the assault.


author: PALMER, J.

text:
    DOORSTEP BEVERAGES OF LONGWOOD, INC., Appellant, v. Willie J. COLLIER, et al., Appellee.
    No. 5D05-3392.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.

      Robert E. Bonner of Meier, Bonner, Muszynski, O’Dell & Harvey, P.A., Orlando, for Appellant.
    Robert C. Power of Bogin, Munns & Munns, Orlando, for Appellee.
   PALMER, J.

ON AMENDED MOTION FOR REHEARING

Willie J. Collier has filed an amended motion for rehearing/elarification of this court’s opinion imposing sanctions, dated February 24, 2006. In said motion, Attorney Robert C. Power, counsel for Collier, states that he failed to advise Collier that his physical attendance at the appellate mediation was mandatory and requests that, as a result of such failure, sanctions be imposed only against counsel, not against Collier. We commend counsel for his candid disclosure of these facts to the court and his professionalism. Accordingly, we grant the motion for rehearing and issue this revised opinion.

Doorstep Beverages of Longwood, Inc. filed a motion with this court seeking the imposition of sanctions against appellee, Willie J. Collier, for his failure to personally appear at court-ordered appellate mediation. The relevant facts are as follows.

By order dated November 19, 2005, this court referred the instant matter to appellate mediation. The Order of Referral specifically provided:

Parties with full settlement authority and counsel are required to attend mediation in person unless excused from attendance by the court. Failure of an attorney or party to appear for a duly scheduled mediation conference or otherwise comply with the Appellate Mediation Program Procedures, without good cause, may result in imposition of sanctions by this court, including the striking of any party’s briefs, denial of oral argument or dismissal of the appeal.

Collier did not appear for the scheduled mediation. No motion was filed with this court to excuse his appearance. Having failed to seek permission from this court to be excused from appearing, the imposition of sanctions is appropriate. See Harrelson v. Hensley, 891 So.2d 635 (Fla. 5th DCA 2005). In light of counsel’s admission to this court that he failed to advise Collier that personal attendance at mediation was mandatory, and his request that sanctions be imposed against him personally, such sanctions are so imposed.

Accordingly, Attorney Robert C. Power is hereby ordered to pay the following amounts as sanctions within 30 days from the date of this opinion: 1) to the mediator, all fees charged by the mediator in connection with the appellate mediation; and, 2) to opposing counsel, reasonable attorney's fees and costs incurred in preparing for and attending the appellate mediation and filing the motion for sanctions.

If the parties cannot agree on the reasonable amount of costs and attorney’s fees, the trial judge in this matter is hereby appointed as a commissioner to conduct an evidentiary hearing and determine the reasonable amount of same. Any dispute over the reasonable amount of attorney’s fees and costs shall not delay Power’s obligation to timely pay the items set forth in paragraph one above. The failure to make these payments may result in further sanctions by this court, including the assessment of additional attorney’s fees.

MOTION GRANTED; SANCTIONS IMPOSED.

PLEUS, C.J., and SHARP, W., J., concur.


text:
    Jesse Jr. ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3741.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.
    Jesse J. Allen, Malone, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Lusunariz v. State, 908 So.2d 1094, 1095 (Fla. 3d DCA 2005) (stating that a motion filed to enforce a plea agreement will be treated as a motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and must be filed within two years of the date of conviction and sentence or relief will be denied).

THOMPSON, SAWAYA and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Jeffery Scott SIPPLE, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-323.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.
    Jeffery S. Sipple, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

We have elected to treat Jeffery Scott Sipple’s response to our show cause order as an application for belated appeal and to grant it.

We conclude that only one issue has merit. Sipple argued that trial counsel was ineffective for failing to object to the jury instruction on the forcible felony exception to the use of deadly force. See Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005). Sipple was charged with only one forcible felony, second-degree murder, and he was convicted of culpable negligence manslaughter.

In its response to our order, the State acknowledges that the circuit court did not address this issue in its order denying Sipple’s Rule 3.850 motion and that an evidentiary hearing appears to be necessary. Accordingly, we reverse the order on appeal and remand for this purpose.

REVERSED and REMANDED.

PLEUS, C.J., and ORFINGER, J., concur.