text:
    Kenneth ADAMS, Appellant, v. STATE of Florida, Appellee.

      No. 4D05-4488.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Jan. 30, 2007.

      . Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   SHAHOOD, J.

Kenneth Adams appeals the disposition order of the trial court revoking his probation. We find no merit in Adams’s argument that the trial court erred in revoking his probation where there was no time period specified for him to complete sex offender treatment. We affirm.

Adams originally pled guilty to one count of lewd or lascivious molestation and one count of lewd or lascivious exhibition. He was placed on two years community control followed by three years of sex offender probation. The State subsequently filed an affidavit of violation of probation. The court revoked the community control and probation and placed Adams on six years of sex offender probation with the condition he serve 364 days in jail. Adams served the jail time and was released into probation. One of the standard conditions of Adams’s sex offender probation required him to enter and successfully complete a sex offender treatment program at his own expense. On August 1, 2005, the State filed an affidavit of violation of probation alleging Adams violated probation by failing to fulfill this condition.

A violation of probation hearing was held on September 12, 2005. Adams’s probation officer, Officer- Jenkins, testified that Adams was instructed on the conditions of his sex offender probation on two separate occasions. Adams told Jenkins he had started working at a car wash about three weeks prior to the time the affidavit of violation was filed. Adams said he was working six or seven days a week. Adams told Jenkins he was going to counseling. Adams never told Jenkins he could not afford the costs of his sex offender counseling. When he got arrested, Adams told Jenkins that “he just didn’t have the money and he just didn’t go.”

Dr. William C. Rambo runs the sex offender treatment program at Fifth Street Counseling Center, where Adams was referred from the Department of Corrections. Dr. Rambo testified he first met Adams on July 2, 2005, when Adams came for an initial intake appointment. Adams was made aware of the program fees at that time. Dr. Rambo testified Adams was made aware that if he could not pay the $50 initial intake fee at that time, Dr. Rambo would work with him. Dr. Rambo told Adams that the session fee would be $25 per session for the first two months, and the fee might increase to $35 after that. Adams indicated he had income, and Dr. Rambo saw no reason that Adams would be unable to pay. Dr. Rambo told Adams that he would be given some time to get his first paycheck and get on his feet financially.

Adams attended his first scheduled group session on July 9, 2005. The second session Adams was scheduled to attend was to be held on July 16th. Adams called and left Dr. Rambo a message saying he had to work that day and would be unable, to attend. Adams did not call and he failed to show up for the July 23rd session and the July 30th session. At that point, Dr. Rambo issued a termination letter to Officer Jenkins pursuant to the program policy regarding two unexcused absences. The letter stated that Adams was terminated for noncompliance with the treatment program.

Dr. Rambo testified that Adams never contacted him or indicated to him that he could not afford the program fees. Dr. Rambo further stated that if Adams had done so Adams would not have been terminated from the program because Dr. Rambo does not terminate anyone for inability to pay. Dr. Rambo believed Adams was aware he would not be terminated for inability to pay, because Dr. Rambo gives all new intakes this instruction when he first meets them.

Adams testified that he worked about fifteen days at the car wash during the months of June and July and earned approximately $635. Adams was aware that one of the conditions of his probation was that he enter and complete the sex offender treatment program. He claimed that Dr. Rambo informed him of the fee schedule, but did not tell him that he could go to the program without paying. Adams never told Dr. Rambo that he could not afford to pay the fee. Adams stated he went to the program twice, and did not pay either time. When asked why he did not continue going to the treatment sessions, Adams responded that he did not feel he had the money and he was unsure how he would have been treated. Adams stated at the revocation of probation hearing that he wanted to continue with the treatment program and probation.

The trial court found that Adams had violated his probation by failing to actively participate in and successfully complete a sex offender treatment program. The court also found that Adams had the ability to pay the costs of treatment. The court specifically declined to make a finding on whether Adams was told he could attend treatment without paying. The court found the violation willful and substantial. The court sentenced Adams to eleven years in prison followed by ten years of sex offender probation.

Adams claims the trial court abused its discretion by revoking his probation because the probation order did not specify a time period for completion of the program or how many chances he had to complete it. We clarify at the outset that the trial court revoked Adams’s probation based upon failure to attend and complete sex offender treatment, not failure to pay. Adams merely cited inability to pay as a reason why he did not attend treatment. This distinction separates this case from those in which probation is revoked for failure to pay court-ordered costs. See, e.g., Stephens v. State, 630 So.2d 1090 (Fla. 1994); Blackwelder v. State, 902 So.2d 905 (Fla. 2d DCA 2005); Osta v. State, 880 So.2d 804 (Fla. 5th DCA 2004).

“It is well settled that ‘[pjrobation may be revoked only upon a showing that the probationer deliberately and willfully violated one or more conditions of probation.’ ” Williams v. State, 896 So.2d 805, 806 (Fla. 4th DCA 2005) (quoting Steiner v. State, 604 So.2d 1265, 1267 (Fla. 4th DCA 1992)). The State must prove by the greater weight of the evidence that the probationer substantially violated a condition of probation. Blackshear v. State, 771 So.2d 1199, 1200 (Fla. 4th DCA 2000). Appellate courts should reverse a revocation of probation only if it is shown that the trial court abused its discretion. Stanley v. State, 922 So.2d 411, 413 (Fla. 5th DCA 2006); Bernhardt v. State, 288 So.2d 490, 501 (Fla.1974).

We find the facts of this case very similar to Mills v. State, 840 So.2d 464 (Fla. 4th DCA 2003). In Mills, a condition of Mills’s sex offender probation was that he complete a sex offender treatment program. 840 So.2d at 465. Mills was terminated from the treatment program due to multiple unexcused absences and lack of participation. Id. at 465-66. The trial court found that Mills had willfully and substantially violated the conditions of his probation by failing to complete the program. Id. at 466.

Like Adams, Mills argued on appeal before this court that the trial court erred in revoking his probation because of the absence of a specific time period within which he was to complete the program. Id. at 467. Although it found the issue unpre-served, this court specifically addressed and rejected Mills’s argument. Id. (citing Archer v. State, 604 So.2d 561, 563 (Fla. 1st DCA 1992) (rejecting argument that no violation of probation occurred because court had not assigned a specific time period for probationer to complete therapy)).

We distinguish the facts of this case from the recent opinion of this court in Myers v. State, 931 So.2d 1069 (Fla. 4th DCA 2006). The probationer, Myers, had his probation revoked for failing to attend two treatment sessions. -931 So.2d at 1070-71. Myers had attended sex offender treatment for over six years. Id. at 1071. The location of the facility required Myers to ride his bicycle two hours to reach it.. Id. at 1070. Myers’s probation officer gave him permission to switch to a program located closer to his home. Id. The doctor from the original program informed the probation office he objected to allowing Myers to switch programs, and Myers was • instructed to return to the original program. Id. Myers missed two classes because he had already paid to attend the new treatment program and did not have the dues to pay to return to the initial program. Id. at 1071. This court stressed the unique facts- of that case, noting that “Myers’ probation officer initially gave him permission to change programs and thus led' a probationer with limited means to spend money on a program which he ultimately was not permitted to attend, leaving no funds for him to attend the required program.” Id. This court concluded that the trial court had abused its discretion under the unique circumstances of that case. Id.

Myers is unique in that the probation officer essentially led Myers to violate his probation. Unlike Myers, the present case involved no confusion or transfer back and forth between two different treatment programs. There was competent testimony that Adams had the resources to pay for his treatment, was aware he would be accommodated if he could not pay, and simply failed to attend. There was sufficient evidence for the trial court to find by a preponderance of the evidence that Adams willfully and substantially violated his probation.

Affirmed.

STONE and HAZOURI, JJ., concur.


source: Caselaw Access Project

author: POLEN, J.

license: Public Domain

text:
    LAWNCO SERVICES, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Shannon B. Bowman, Appellees.
    No. 4D06-1011.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.

      Mark J. Berkowitz of Mark J. Berkow-itz, P.A., Fort Lauderdale, for appellant.
    Dion J. Cassata of Cassata & Hanson, P.L., Hallandale Beach, for appellee Shannon B. Bowman.
   POLEN, J.

This appeal arises from an order of the Florida Unemployment Appeals Commission (“UAC”) awarding unemployment compensation benefits to claimant/appel-lee, Shannon B. Bowman. We reverse the UAC’s determination and remand for reinstatement of the appeals referee’s decision.

This cause came before the UAC on Bowman’s appeal of an appeals referee’s decision wherein Bowman was held disqualified from receipt of unemployment compensation benefits. The referee had found that Bowman worked for LawnCo as a general hourly lawn maintenance employee. After Hurricane Katrina, and due to the nature of LawnCo’s business — lawn maintenance and brush cleanup — , Bowman worked an average of fifteen hours of overtime a week. However, he was paid his standard wage as opposed to an elevated overtime wage for that extra time. Believing that he was not being properly compensated, Bowman quit his job.

In front of the appeals referee, Bowman testified that LawnCo had promised him a bonus for the extra work. A witness for LawnCo testified that Bowman was never promised any bonuses and was told he would be paid his regular wage. After finding LawnCo’s testimony more credible, the referee held that Bowman voluntarily left work without good cause and disqualified him from receipt of unemployment compensation benefits. The referee based its decision on the following “Conclusions of Law”:

The records reflect the claimant felt that he was entitled to compensation and was not being properly compensated. While the claimant’s- reasons for quitting may have been personally compelling, it was incumbent upon the claimant to contact the employer regarding his concerns. Under the circumstances, the claimant has not established that he made an effort to advise the employer of the problem and made a reasonable and adequate effort to maintain and preserve the employment relationship. Accordingly, the claimant has not established good cause for quitting his job.

The UAC accepted the referee’s findings of fact. However, upon review of the record it reversed the referee’s decision, concluding that Bowman left work with good cause. The UAC found that while Bowman may not have been promised a bonus, LawnCo’s failure to pay him overtime wages violated the Fair Labor Standards Act, 29 U.S.C.S. §§ 201 (2006) (“FLSA”), thus giving him good cause to terminate his employment. LawnCo now appeals the UAC’s decision.

First, we hold that the UAC was precluded from reversing the referee’s decision because the referee’s decision was supported by competent, substantial evidence. “The administrative construction of a statute by the agency charged with its administration is entitled to great weight.” Dep’t of Ins. v. Southeast Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983) (citation omitted). However, the UAC possesses the authority to reverse an appeals referee’s findings of fact and conclusions of law only where there is no competent, substantial evidence in the record to support those findings. Sardinas v. Unemployment Appeals Comm’n, 906 So.2d 1204, 1205 (Fla. 4th DCA 2005) (per cu-riam) (quoting Campeanu v. Fla. Unemployment Appeals Comm’n, 629 So.2d 1015, 1016 (Fla. 4th DCA 1993) (per cu-riam)); see also Saenz v. Fla. Unemployment Appeals Comm’n, 647 So.2d 283, 285 (Fla. 2nd DCA 1994) (“[T]he UAC may only modify or reverse the findings or conclusions of a referee where the referee’s findings and conclusions are not based on substantial, competent evidence.”); Tourte v. Oriole of Naples, 696 So.2d 1283, 1284 (Fla. 2d DCA 1997) (concluding that “good cause attributable to the employer” is an ultimate fact best left to the fact-finder); but see Tourte, 696 So.2d at 1286-87 (Altenbrand, C.J., dissenting) (concluding that the majority’s opinion deprives the UAC of its right to make a valid legal and policy decision); Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1106 (Fla. 5th DCA 1990) (holding that the UAC may reverse a referee’s good cause determination because the question of “good cause attributable to the employer” is strictly a matter of law). In the instant case, the referee’s decision was based on unrefuted evidence that Bowman tendered his letter of resignation and quit his job without first communicating his concerns to LawnCo or making any other reasonable effort to preserve the employment relationship. Although the UAC may have considered LawnCo’s failure to properly compensate Bowman more compelling or more relevant to a good cause determination, Sardinas dictates that the UAC may not reverse a referee’s decision by simply reweighing the evidence. See Sardinas, 906 So.2d at 1205; see also Tourte, 696 So.2d at 1284 (“If it is argued that ‘good cause attributable to the employer’ is a question of law in which the decision of the [UAC] or this court turns on interpretation of the record, we disagree.”). We therefore conclude that the UAC erred in reversing the referee’s decision.

We also find that the UAC erred in relying on the FLSA to determine that Bowman had good cause for terminating his employment with LawnCo. The UAC found that LawnCo’s failure to compensate Bowman for overtime work violated the overtime provisions of the FLSA, 29 U.S.C.S. § 207(a) (2006). This violation, according to the UAC, gave Bowman good cause to terminate his employment.

The FLSA guarantees time and a half for overtime, but only for employees who work for an “[e]nterprise engaged in commerce or in the production of goods for commerce.” 29 U.S.C.S. § 208(a)(1)(A) (2006). These organizations are those that (1) have an annual dollar volume of sales or business done of at least $500,000; and (2) those that have employees engaged in commerce or in the production of goods for commerce, or that has employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person. 29 U.S.C.S. § 203(s)(l)(A)(i), (ii) (2006). Neither the UAC nor the appeals referee engaged in an analysis of the potential applicability of the FLSA to this dispute; nor does there appear to be evidence in the record which would indicate that LawnCo is an “enterprise” covered under the FLSA (LawnCo is in the lawn maintenance and brush cleanup business in Bro-ward County). Therefore, we find there was no record support for the UAC to make a finding under the FLSA.

Reversed and remanded with instructions.

KLEIN and MAY, JJ., concur.

      . The appeals referee affirmed the determination of the claims adjudicator.

        . Section 443.101, Florida Statutes, states that an employee who leaves his employment without good cause attributable to his employer is not eligible to receive unemployment compensation benefits. Fla. Stat. § 443.101(l)(a) (2006). "To voluntarily leave employment for good cause, the cause must be one which would reasonably impel the average able-bodied qualified worker to give up his or her employment ... The applicable standards are the standards of reasonableness as applied to the average man or woman, and not to the supersensitive.” Uniweld Prods., Inc. v. Indus. Relations Comm'n, 277 So.2d 827, 829 (Fla. 4th DCA 1973); see also Ritenour v. Unemployment Appeals Comm’n, 570 So.2d 1106, 1106 (Fla. 5th DCA 1990) (stating that the standard is not that of the highly emotional, supersensitive employee).


text:
    Steven DAMICO, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 20, 2006.
    Rehearing Denied Feb. 6, 2007.

      Regina Tsombanakis of Regina Tsomba-nakis, P.A., and Sheldon M. Schapiro of Law Offices of Sheldon M. Schapiro, Fort Lauderdale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Steven Damico, appeals a final judgment and conviction for aggravated battery. Damico was charged with attempted first degree murder under the firearms enhancement statute. Following a jury trial, Damico was convicted of the lesser included offense of aggravated battery and sentenced to twenty-five’ years in prison. Damico raises eight points in this appeal, but we write to address only one of these' issues, whether aggravated battery is a permissive lesser included offense of attempted first degree murder with application of the firearms sentencing enhancement statute. Damico argues that aggravated battery, with application of the firearms enhancement statute, results in the same sentence as attempted first degree murder and therefore is not a permissive lesser included offense.

There are two types of lesser included offenses, necessary included offenses and permissive included offenses. See Moore v. State, 932 So.2d 524 (Fla. 4th DCA 2006). “Permissive lesser included category two offenses are those ‘which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence, which will include all attempts and some lesser degrees of offenses.’ ” Id. at 527 (quoting In re Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 596 (Fla.1981)). In Ray v. State, 403 So.2d 956 (Fla.1981), the Florida Supreme Court determined that a lesser included offense must be “a crime of lesser degree or one subject to a lesser penalty.” Id. at 961. Ray was decided prior to the existence of section 775.086, Florida Statutes, and Florida courts have questioned whether the sentencing enhancement statute should be taken into consideration when making this determination.

, In Franklin v. State, 877 So.2d 19, 20 (Fla. 4th DCA 2004), this court determined that all applicable sentencing statutes should be considered in determining what constitutes a lesser included offense. This court determined that one of the main reasons for allowing lesser included offenses is to allow a jury to exercise its pardon power by convicting the defendant of a lesser offense, i.e., one resulting in a lesser sentence, than the one initially charged. Id. This court certified the following question to the Florida Supreme Court:

WHERE THE EVIDENCE WOULD SUPPORT FINDINGS UNDER SECTION 775.086 FLORIDA STATUTES, THAT RESULT IN THE PENALTY FOR AGGRAVATED BATTERY BEING THE SAME AS FOR ATTEMPTED SECOND DEGREE MURDER, IS AGGRAVATED BATTERY A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?

Id. at 21.

However, under the facts of this case, we find it unnecessary to reach this question. In this case, with application of the 10-20-life statute, the maximum punishment for attempted first degree murder is life imprisonment, while aggravated battery is punishable by 25 years to life imprisonment. See §§ 775.087(1)(2), Fla. Stat. (2001). Damico was ultimately sentenced to 25 years in prison. We find that a sentence of 25 years to life is a lesser sentence than life, and therefore, aggravated battery is both lesser in degree and punishment than attempted first degree murder. We affirm.

KLEIN and MAY, JJ., concur.

      . This statute was incorrectly cited in Franklin; the correct statute is § 775.087, Fla. Stat. (2001).

      . The second district certified a similar question to the Florida Supreme Court in Sanders v. State, 912 So.2d 1286 (Fla. 2d DCA 2005). The supreme court recently answered the question in Sanders v. State, 944 So.2d 203 (Fla.2006) (finding that a lesser included offense does not need to be lesser in both degree and penalty than the charged offense).


author: PER CURIAM. THOMAS, J.,

text:
    Alexie R. KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-1371.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.
    Rehearing Denied Jan. 22, 2007.

      Dale C. Carson, Jacksonville, and John M. Merrett, Jacksonville, for Appellant.
    Charlie Crist, Attorney General, Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from conviction and sentence for sexual ’abuse crimes, Appellant challenges the' dispositive issue of whether the trial court erred by allowing the state to introduce Appellant’s confession into evidence pursuant to section 92.565(2), Florida Statutes (2005). We agree with Appellant that the requirements of section 92.565(2) were not met and that the trial court erred by admitting Appellant’s confession.

Appellant was charged with sexual abuse crimes against a minor. Appellant confessed to the charges. Subsequently, the victim recanted and stated that she would not cooperate with the prosecution nor would she testify at trial. The state sought to admit Appellant’s confession pursuant to section 92.565(2).

Section 92.565(2) creates an exception to the corpus delicti rule for certain sexual abuse crimes. The corpus delicti rule is a fundamental and ancient rule of evidence which requires the state to prove the actus reus of a crime by independent means before the state can introduce into evidence any extrajudicial confessions of an accused. Lambright v. State, 34 Fla. 564, 16 So. 582, 585 (Fla.1894). For qualifying sexual abuse cases, section 92.565(2) allows the state to introduce a confession into evidence if the trial court determines that the confession is trustworthy and that the state is unable to establish an element of the crime. The statute provides trial courts with a non-exhaustive list of “factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime.” § 92.565(2), Fla. Stat (2005). These factors

include, but are not limited to, the fact that, at the time the crime was committed, the victim was:
(a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011;
(b) Physically incapacitated due’to age, infirmity, or any other cause; or
(c) Less than 12 years of age.

Id.

The trial court concluded that Appellant’s confession was trustworthy and that the state was unable to establish elements of the charged offenses because the victim refused to cooperate with the prosecution. When the trial court ruled that Appellant’s confession could be admitted into evidence, Appellant pled no contest to the charges, but reserved the right to appeal this issue, which was stipulated to be dispositive. For the following reasons, the trial court erred in admitting Appellant’s confession.

Because section 92.565 is in derogation of the common law corpus delicti rule, this statute must be “strictly construed, and should not be interpreted to displace the common law further than is necessary.” Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006). Given that this statute enumerates specific factors for the trial court’s consideration, strict construction requires the application of the principle of ejusdem generis. See Soverino v. State, 356 So.2d 269, 273 (Fla.1978)(“Under the well-established doctrine of ejusdem gener-is, where general words follow the enumeration of particular classes of persons, the general words will be construed as applicable only to persons of the same general nature or class as those enumeratr ed, unless an intention to the contrary is clearly shown [because] if the legislature had intended the general words to be used in their unrestricted sense, they would not have made mention of the particular classes.”)(internal citations omitted). Applying the principle of ejusdem generis, it becomes clear that a prerequisite to the application of section 92.565(2) is the prosecution’s inability to independently prove the crime due to some disability on the part of the victim-. See Bradley v. State, 918 So.2d 337, 340 (Fla. 1st DCA 2005). As enunciated in the portion of the statute introducing the list of factors to be considered by the trial court, the disability which prevents the state from proving the elements of the crime must exist at the time the crime is committed. See § 92.565(2), Fla. Stat. (2005).

Here, the trial court attributed the State’s inability to prove the corpus delicti to the victim’s refusal to cooperate with the prosecution. Such refusal on the part of the victim is not sufficient to meet the requirements of the statute. The victim’s statement during a deposition that she would not appear at a trial to testify against Appellant did not create the sort of disability contemplated by the statute and this alleged disability was not present at the time the crime was committed. Because the State’s inability to prove the corpus delicti of the crime was not attributable to a disability of the victim present at the time of the crime, the trial court erred in admitting Appellant’s confession.

Accordingly, Appellant’s conviction is reversed. Because the state has stipulated that the confession issue is dispositive, this matter is remanded with directions for Appellant to be discharged.

ALLEN and DAVIS, JJ., concur; THOMAS, J., dissents with opinion.

THOMAS, J.,

dissenting.

I respectfully dissent. In my view, the majority opinion overlooks the broad language of section 92.565, Florida Statutes (2005), which eliminates the corpus delicti rule in the prosecution of sexual crimes, and it also misconstrues language meant only to provide guidance to trial courts in deciding whether the State has met its evidentiary burden to invoke the statute.

Section 92.565, Florida Statutes (2005), by its specific terms, applies to a wide range of crimes involving sexual assault, including incest, sexual performance by a child, aggravated child abuse involving sexual abuse, and contributing to the delinquency or dependency of a minor involving sexual abuse. In addition, section 92.565 specifically applies to “any other crime involving sexual abuse of another.”

By today’s decision, the statute will essentially now read as follows: Where the State cannot prove an element of the crime in cases involving sexual abuse, the court may admit memorialized trustworthy confessions or admissions if, and only if, at the time of the offense, the victim is incapacitated, disabled, helpless, or under the age of twelve. I do not believe the plain language of the statute supports this result.

The majority opinion conflicts with the unambiguous language of the statute, which eliminates the corpus delicti rule in the prosecution of crimes where the State is unable to show the existence of an element of the crime. The legislature’s broad power includes the power to abolish the corpus delicti rule and adopt a new rule if it so chooses, as it did here for cases involving sexual crimes. In my view, the doctrine of ejusdem generis does not apply here for two reasons: (1) the statute is not ambiguous; and (2) the operative provision clearly shows an intent to not restrict the application of the statute. Accordingly, I would affirm the trial court’s ruling admitting Appellant’s confession.

Facts

At trial, a detective testified that he was investigating allegations involving sexual conduct between the minor female victim and another adult male when Appellant’s name was mentioned. Although the victim specifically denied any involvement with either man, Appellant immediately confessed when contacted by law enforcement. Appellant was then read his rights, and he voluntarily agreed to give a statement.

During the subsequent interview, Appellant informed the detective that he was the pastor of a small church and knew the victim from her visits to his church. Appellant admitted that he had engaged in sexual conduct with the victim when she was 12 or 13 years old. Appellant agreed to make a videotaped statement, where he confessed to and explained the numerous sexual encounters he had with the victim.

After Appellant gave his statement, the detective again contacted the victim. She was shown Appellant’s videotaped confession, and the detective then videotaped his conversation with her. Although the victim stated that she did not want to prosecute Appellant because she felt he had done nothing wrong, the victim acknowledged that she and Appellant were intimate for almost a year. She said that the majority of Appellant’s confession was true, although , she disagreed with some of the particular details about their sexual encounters.

During a subsequent deposition, the victim, then 17 years old, answered almost every question by stating, “I have not had a relationship with that man,” whether relevant or not. She repeatedly denied that any sexual conduct had occurred and stated that she only made her previous statements because the detective told her what to say. She also said she would refuse to cooperate in the investigation and would not testify at trial, even if compelled to appear by subpoena.

The State filed a motion to admit Appellant’s confession ■ pursuant to section 92.565, Florida Statutes (2005), arguing the confession was admissible because in the victim’s deposition, she recanted her previous statements, denied that any abuse occurred, and stated that she would refuse to appear in court and testify against Appellant. The State argued that because the victim was not cooperative, it was unable to prove the existence of all elements of the crime without the admission of Appellant’s confession.

At the hearing on the motion, the victim’s mother testified that Appellant’s wife informed her of the sexual relationship between the victim and Appellant. The victim then admitted the incidents to her, but would not disclose any details. The victim’s mother testified that Appellant admitted to the relationship with the victim during a meeting at the church between herself, Appellant, Appellant’s wife, and the victim.

The trial court granted the State’s motion to admit Appellant’s confession into evidence, finding the confession trustworthy by a preponderance of the evidence.

Analysis

Section 92.565, Florida Statutes (2005), eliminates the State’s burden of establishing corpus delicti in certain criminal cases involving sexual abuse:

1) As used in this section, the term “sexual abuse” means an act of a sexual nature or sexual act that may be prosecuted under any law of this state, including those offenses specifically designated in subsection (2).
2) In any criminal action in which the defendant is charged with [enumerated crimes] ... or any other crime involving sexual abuse of another ... the defendant’s memorialized confession or admission is admissible during trial without the state having to prove a corpus delicti of the crime if the court finds ... that the state is unable to show the esstence of each element of the crime, and having so found, further finds that the defendant’s confession or admission is trustworthy. Factors which may be relevant in determining whether the state is unable to show the existence of each element of the crime include, but are not limited to, the fact that, at the time the crime was committed, the victim was:
(a) Physically helpless, mentally incapacitated, or mentally defective, as those terms are defined in s. 794.011;
(b) Physically incapacitated due to age, infirmity, or any other cause; or
(c) Less than 12 years of age.

§ 92.565, Fla. Stat. (2005) (emphasis added).

The rule of corpus delicti is a common law rule and, as such, the legislature has the power-to abolish it, unless constitutionally prohibited. Art. Ill, § 1, Fla. Const.; see Johnson v. State, 336 So.2d 93, 95 (Fla.1976) (“Clearly, the Legislature has the power to enact substantive law, and it is the duty of the courts to enforce such substantive law where constitutional.” (footnote omitted)); State v. Smiley, 927 So.2d 1000, 1003 (Fla. 4th DCA 2006) (discussing legislation eliminating common law duty to retreat).

Acting on its constitutional authority, the legislature eliminated the rule of corpus delicti under certain conditions. As we noted in Bradley v. State, section 92.565, Florida Statutes (2005),

eliminates the need to establish the corpus delicti of the crime as a predicate to admitting the defendant’s confession in evidence. When all of the conditions of the statute have been met, the state is entitled to introduce the defendant’s confession. The state is not also required to present independent proof of each element of the crime, as it would be under the corpus delicti rule. An element of the crime may be established by the confession itself, so long as the corroborating evidence makes the confession trustworthy.

918 So.2d 337, 340 (Fla. 1st DCA 2005) (citations omitted). As pointed out by the majority, however, we further stated in Bradley that the legislature included in section 92.565 a requirement that “the state is unable as a result of some disability on the part of the victim to prove an element of the crime.” Id. (emphasis added). This statement was not essential to the decision in Bradley; therefore, it is merely dicta. See State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation, 276 So.2d 823, 826 (Fla.1973) (explaining where a district court’s statement was not essential to the court’s decision, the statement is without force as precedent).

In Bradley, we rejected the defendant’s argument that section 92.565(2) did not automatically apply where the victim was under 12 years of age. 918 So.2d at 341. There was no issue presented regarding the other statutory factors, such as the victim’s incapacitation, nor were we required to determine whether the statutory list of relevant factors was all inclusive. We did note, however, that

[s]ubsection (2) introduces a list of factors that “may be relevant,” but it is then followed by a caveat that the statute is not limited to those factors. The word “may” was not used to signify that the listed factors may or may not apply, depending on whether they are justified, but rather to signify that the statute is not limited to those factors.

Id. (emphasis added). Thus, we acknowledged that the application of section 92.565 is not limited to only those situations listed in the provision itself. Id.

The case before us squarely presents the question of whether all conditions of the statute have been met where the State is unable to show the existence of each element of the crime as the result of the victim’s refusal to cooperate with the prosecution. In my view, the statutory conditions were met and the trial court correctly admitted Appellant’s confession.

Section 92.565, Florida Statutes (2005), authorizes a trial court to admit confessions in certain criminal cases involving sexual abuse where the State is unable to present evidence of each element of the crime and the trial court finds the confession trustworthy. The plain meaning of the “factors which may be relevant” language is that the legislature simply provided a non-inclusive list of examples to assist trial courts in determining whether the State had shown it could not otherwise prosecute a case unless the confession was admitted. Had the Legislature intended to make the list all inclusive, it would have simply done so.

Section 92.565 unambiguously states that it is not limited to the listed situations, therefore, there is no need to apply the rule of ejusdem generis to interpret the language. See McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (“[wjhen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction”) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). Thus, courts should apply ejusdem generis only where the intent of the legislature is unclear:

The doctrine of ejusdem generis applies when the following conditions exist: (1) the statute contains an enumeration by specific words; (2) the members of the enumeration suggest a class; (3) the class is not exhausted by the enumeration; (4) a general reference supplementing the enumeration, usually following it; and (5) there is not clearly manifested an intent that the general term be given a broader meaning than the doctrine requires. It is generally held that the rule of ejusdem generis is merely a rule of construction and is only applicable where legislative intent or language expressing that intent is unclear.

2A Norman J. Singer, Sutherland Statutory Construction § 47.18, at 287-288 (6th ed.2000).

Courts should decline to invoke the doctrine of ejusdem generis where the context and words of the statute clearly do not restrict application of the statute to objects of the same kind. See id., § 47.22, at 297-298 (“A final qualification on the doctrine is that the general words are not restricted in meaning to objects of the same kind ... if there is a clear manifestation of a contrary intent”) (emphasis added). In my view, if the legislature intended to limit application of section 92.565, Florida Statutes, to only those types of situations listed, the statute would state that it applied only where disabilities such as age or incapacity existed.

We should give full effect to the statute’s unambiguous language. Art. II, § 3, Fla. Const.; State v. Jett, 626 So.2d 691, 693 (Fla.1993). In Forsythe v. Longboat Key Beach Erosion Control District, the Florida Supreme Court stated:

It is a fundamental principle of statutory-construction that where the language of a statute is plain and unambiguous there is no occasion for judicial interpretation. As this Court set forth more than 70 years ago in Van Pelt v. Hilliard:
“The Legislature must be understood to mean what it has plainly expressed and this excludes construction. The Legislative intent being plainly expressed, so that the act read by itself or in connection with other statutes pertaining to the same subject is clear, certain and unambiguous, the courts have only the simple and obvious duty to enforce the law according to its terms. Cases cannot be included or excluded merely because there is intrinsically no reason against it. Even where a court is convinced that the Legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity. ' If a legislative enactment violates no constitutional provision or principle it must be deemed its own sufficient and conclusive evidence of the justice, propriety and policy of its passage. Courts have then no power to set it aside or evade its operation by forced and unreasonable construction. If it has been passed improvidently the responsibility is with the Legislature and not the courts. Whether the law be expressed in general or limited terms, the Legislature should be held to mean what they have plainly expressed, and consequently no room is left for construction, but if from- a view of the whole law, or from other laws m pari materia the evident intent is different from the literal import of the terms employed to express it in a particular part of the law, that intent should prevail, for . that, in fact is the will of the Legislature.” 2 Sutherland’s Statutory Construction, Sec. 366, p. 701.

604 So.2d 452, 454-455 (Fla.1992) (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)).

In reaching my conclusion, I rely on the plain meaning of the phrases “factors which may be relevant” and “include, but are not limited to” found in section 92.565. While we need not look to legislative history or staff analysis to find the objective meaning of this statute, I find such information corroborates the plain meaning.

A Senate staff analysis of the amendment adding this language notes that the amendment provides a “non-inclusive list of factors which may be relevant” in making the finding that the State is unable to show the existence of each element of the crime. Fla. S. Comm, on Crim. Just., CS for SB 840 (2000) House Message Summary 1 (May 4, 2000) (on file in State Archives) (emphasis added).

The House staff analysis similarly notes that the amendment provides “a list of factors which may be relevant to the court’s determination of whether the state is able to show the elements of the crime.” Fla. H.R. Comm, on Crime and Pun., HB 861 (passed as SB 840) (2000) Staff Analysis 6 (final June 13, 2000) (on file in State Archives). No staff analysis describes the language “included, but are not limited to” as an exclusive limitation to only those types of cases listed,, and neither would I.

In my view, the critical focus of the statute is the trustworthiness of the confession, not the particular reason why the State cannot prove an element of the crime. All that is required to invoke section 92.565 is that the trial court find that: (1) the defendant is charged with a crime involving sexual abuse of another; (2) the State is unable to show the existence of at least one element of the crime; and (3) the defendant’s confession or admission is trustworthy. All three factors are present here; therefore, the trial court properly admitted Appellant’s confession into evidence.

I would hold that section 92.565, Florida Statutes (2005), applies in situations where the victim is unwilling to testify. The factors listed in section 92.565(2) are not an exhaustive list, but merely provide examples of the types of situations that “may be relevant” when deciding whether to invoke the statute. Because Appellant’s confession was properly admitted, I would affirm his conviction.


author: PER CURIAM.

text:
    Orlando CRESPO, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3573.
    District Court of Appeal of Florida, Fifth District.
    Dec. 26, 2006.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 761 So.2d 269 (Fla.1999).

THOMPSON, PALMER and MONACO, JJ., concur.


text:
    Daryl HARNAGE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3739.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 5, 2007.

      Daryl Harnage, Monticello, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Daryl Harnage appeals the denial of a Florida Rule of Criminal Procedure 3.800(a) motion. The motion alleged that Harnage was arrested for new offenses in St. Lucie County while he was on probation for cases in Martin County. A “no-bond hold” was placed on Harnage while he was jailed on the St. Lucie County case, and a violation of probation warrant issued in Martin County. According to the motion, the Martin County detainer was the reason Harnage did not post bond on1 the St. Lucie county charges.

The record attached by the trial court in this case demonstrates that Harnage was given credit from the date Martin County authorities formally arrested him on the violation of probation warrant. Harnage contends he is entitled to jail credit on the Martin County case from the date he was arrested for the new charges in St. Lucie County.

The motion failed to establish that Harnage was entitled to additional jail credit. The trial court correctly ruled that Harnage was entitled to jail credit from the date the Martin County violation of probation warrant was formally executed. Gethers v. State, 798 So.2d 829 (Fla. 4th DCA 2001), approved by, 838 So.2d 504 (Fla.2003); Martinez v. State, 940 So.2d 1277 (Fla. 4th DCA 2006); Young v. State, 840 So.2d 468 (Fla. 2d DCA 2003).

Harnage failed to identify record evidence to support a claim that he was held solely on the Martin County detainer while jailed in St. Lucie County. Bonilla v. State, 884 So.2d 1072 (Fla. 5th DCA 2004). Under the circumstances, this claim may not be ascertainable from the face of the record and is improper for a rule 3.800(a) motion. See Decoste v. State, 898 So.2d 1201 (Fla! 5th DCA 2005) (holding that jail credit issues are appropriately brought in a rule 3.850 motion where the additional credit hinges on factual matters not ascertainable from the face of the record).

Affirmed.

POLEN, SHAHOOD and GROSS, JJ., concur.


author: KLEIN, J.

text:
    Frank ORDZIEJESKI, Appellant, v. David FREUDENBERG, Village Pointe Realty, L.L.C., d/b/a Weichart Realtors—Village Point and Gemma Sicolo, Appellees.
    No. 4D06-804.
    District Court of Appeal of Florida, Fourth District.
    Dec. 27, 2006.
    Rehearing Denied Feb. 7, 2007.

      Michael C. Klasfeld, Pompano Beach, for appellant.
    H. Michael Muniz and Scott J. Topolski of Buckingham, Doolittle & Burroughs, LLP, Boca Raton, for appellees Village Pointe Realtors and Gemma Sicolo.
    Daniel M. Landis of Landis & Mallinger, P.L., Boca Raton, for appellees David Freudenberg and Patricia Freudenberg.
   KLEIN, J.

Ordziejeski entered into a contract to sell Freudenberg a piece of real estate. When Ordziejeski, the seller, refused to close, Freudenberg, the buyer, sued for specific performance. The seller then filed a counterclaim against the buyer for fraud and also filed a third party complaint against the realtors Sicolo and Village Point, alleging fraud. The trial court dismissed the seller’s counterclaim against the buyer for failure to state a cause of action, and seller appeals. Because the complaint for specific performance is still pending in the trial court, the portion of the order dismissing the counterclaim is not a final appealable order. S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla.1974). We accordingly dismiss the appeal of the portion of the order dismissing the counterclaim, without prejudice to appeal from the final judgment after disposal of the specific performance case.

The trial court also dismissed the third party complaint against the realtors for failing to state a cause of action for fraud. The realtor, Sicolo, had previously secured a tenant for the seller’s rental home. After the seller asked Sicolo to obtain a renewal of the lease, Sicolo and her associate realtor, Freudenberg, the buyer, advised seller that the seller should sell the property to Freudenberg for $150,000, which would be a good price for the seller to accept. Relying on their opinion, seller counter-offered to sell for $175,000, which Freudenberg accepted.

Seller then had an independent appraisal performed and discovered that the property was worth over $300,000, and this was the basis of the seller’s fraud claims. The trial court concluded that, because the seller made a counter-offer of $175,000, as a matter of law the seller had not relied on the representations of the realtors that the property was worth only $150,000. In doing so, however, the trial court failed to accept the allegations in the complaint as true. Almarante v. Art Inst. of Fort Lauderdale, Inc., 921 So.2d 703 (Fla. 4th DCA 2006). The order dismissing the complaint for failure to state a cause of action against Sicolo and Village Point Realty is accordingly reversed.

We affirm the order dismissing the third party complaint against Patricia Freudenberg, the wife of the buyer, because she was not a party to the transaction.

Affirmed in part and reversed in part.

POLEN and MAY, JJ., concur.


text:
    Eric HANSON, Appellant, v. FLORIDA HOSPITAL, Appellee.
    No. 1D05-3914.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Monte R. Shoemaker and Kellye A. Shoemaker, Altamonte Springs, for Appellant.
    Pamela J. Cox and Jodi K. Mustoe of Cox Rouse, P.A., Maitland, for Appellee.
   PER CURIAM.

The claimant appeals a workers’ compensation order in which it was determined that his petition for benefits is barred by the statute of limitations in section 440.19, Florida Statutes. Relying on Fontanills v. Hillsborough County School Board, 913 So.2d 28 (Fla. 1st DCA 2005), the claimant asserts that he was not given sufficient information as to his rights in connection with this limitations period, despite the employer having provided him with an approved informational brochure in accordance with § 440.19(4) and § 440.185(4), Florida Statutes. The Fon-tanills opinion indicates that although the claimant there apparently received an informational brochure he was not made aware of the limitations period under section 440.19(2), which provides that the period is tolled for one year from when indemnity benefits are paid or remedial treatment is furnished. However, the informational brochure in the present case clearly and expressly advised the claimant to be aware that “your right to receive benefits and medical care may end if there has been no payment for lost wages made or necessary medical care provided for a one year period.” The claimant was thus sufficiently informed in accordance with the statutory requirements.

The order under review is affirmed.

BARFIELD, ALLEN and KAHN, JJ., concur.


text:
    Andreas OBOJES, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2323.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Andreas Obojes, pro se, Appellant.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Andreas Obojes appeals an order of the circuit court denying his petition for writ of habeas corpus, which we affirm. Obojes was convicted in 1990 of three counts of armed sexual battery, a life felony, and was given three concurrent departure sentences of 40 years in prison on September 22, 1990. See State v. Obojes, 604 So.2d 474 (Fla.1992). He has filed numerous motions to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a), contending that under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), a jury was required to find the facts of “premeditation” and “professional manner” used to justify his departure sentence, which he believed exceeded the statutory maximum. The circuit court has denied each motion on the merits, and this court has affirmed each order on appeal in cases 1D00-4653, Reeves-Obojes v. State, 789 So.2d 992 (Fla. 1st DCA 2001); 1D01-3768, Reeves v. State, 810 So.2d 926 (Fla. 1st DCA 2002); 1D02-4144, Obojes v. State, 837 So.2d 970 (Fla. 1st DCA 2003); and 1D05-1868, Obojes v. State, 911 So.2d 104 (Fla. 1st DCA 2005).

We directed Obojes to show cause, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), why he should not be barred from further challenging his conviction unless he were represented by counsel, and in his response, Obojes agreed to allow this court to appoint an attorney for him to argue this issue, and then proceeded to reiterate the Apprendi/Blakely argument. He did not provide this court with a reason to permit him to continue raising this issue.

We conclude from our review that Obo-jes’s repetitive challenges to his sentence are an abuse of the legal process that has had and will have an adverse effect upon this court’s limited resources if we were to allow additional challenges. Accordingly, we prohibit Obojes from filing any further pro se pleadings in this court challenging his conviction in Duval County Circuit Court Case Number 16-1989-CF-6576, regardless of the remedy sought or theory raised, unless he is represented by a member in good standing of The Florida Bar. We further direct the clerk of this court not to accept any additional pro se filings in this case from Obojes.

AFFIRMED.

ERVIN, DAVIS, and BENTON, JJ., concur.


text:
    Mattie CAESAR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4976.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.
    Mattie Caesar, pro se, Petitioner.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and petitioner shall be. allowed belated appeal of the March 10, 2006, order denying motion for post conviction relief in Duval County Circuit Court case number 16-1997-CF-9101-AXXX. Upon issuance of mandate in this cause, the circuit court shall treat this court’s mandate as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


text:
    Jeremiah J. WALKER, P.E., Appellant, v. BOARD OF PROFESSIONAL ENGINEERS, Appellee.
    No. 1D06-0948.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2006.

      Gregory R. Miller, United States Attorney, and Pamela A. Moine, Assistant United States Attorney, Pensacola, for Appellant.
    Bruce A. Campbell, Tallahassee, for Ap-pellee.
   PER CURIAM.

Jeremiah J. Walker, P.E., appeals a final order of the Board of Professional Engineers (Board), appellee, which rejects various findings of fact made in the recommended order of the Administrative Law Judge (ALJ), rejects the ALJ’s conclusion that negligence was not proven, and substitutes the Board’s conclusion that negligence had been proven justifying a reprimand of Walker’s license. Because competent substantial evidence supports the findings of the ALJ, we reverse.

As this court explained in Heifetz v. Department of Business Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) (citations omitted and emphasis added):

Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact. It is the hearing officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. If as is often the case, the evidence presented supports two inconsistent findings, it is the hearing officer’s role to decide the issue one way or the other. The agency may not reject the hearing officer’s finding unless there is no competent, substantial evidence from which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.

Accord Packer v. Orange County School Bd., 881 So.2d 1204, 1207 (Fla. 5th DCA 2004); Tedder v. Florida Parole Comm’n, 842 So.2d 1022, 1025 (Fla. 1st DCA 2003). Here, competent substantial evidence supports the findings of fact made by the ALJ. Florida courts are in agreement that when competent substantial evidence in the record supports the ALJ’s findings of fact, “the agency may not reject them, modify them, substitute its. findings, or make new findings.” Gross v. Dep’t of Health, 819 So.2d 997, 1001 (Fla. 5th DCA 2002).

REVERSED and REMANDED with instructions that the ALJ’s recommended order be adopted as the final order of the Board.

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

      . In its final order, the Board approved certain exceptions to the recommended order filed by Florida Engineers Management Corporation (FEMC). See section 471.038(3)(b), Florida Statutes (2005), providing that FEMC shall provide prosecutorial services to the Board. In addition to its exceptions, FEMC also provided the Board with certain documents that were not part of the record and were not considered by the ALJ. On appeal, the Board correctly concedes that it was improper for it to have considered evidence outside of the record. See Hodge v. Dep’t of Prof'l Regulation, 432 So.2d 117, 118 (Fla. 5th DCA 1983).


text:
    Katina LOWERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1416.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2007.
    James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982).

THOMPSON, ORFINGER and MONACO, JJ., concur.


text:
    Gary Lee WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-711.
    District Court of Appeal of Florida, Fifth District.
    Jan. 2, 2007.
    Gary L. Wheeler, Century, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Moore v. State, 820 So.2d 199, 203-04 (Fla.2002).

THOMPSON, PALMER and MONACO, JJ., concur.


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. John CUBIC, Appellee.
    No. 4D05-3553.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellant.
    Donna P. Levine of Law Office of Donna P. Levine, West Palm Beach, for appellee.
   HAZOURI, J.

The State appeals the trial court’s suppression of John Cubic’s breath test results in a prosecution for driving under the influence. We affirm.

Cubic was charged with one count of felony driving under the influence and one count of felony driving while license permanently revoked, arising out of a traffic stop by Broward Sheriffs Office (BSO) in Pompano Beach on July 28, 2004. Cubic submitted to a breath-alcohol test. His breath-alcohol level was 0.098, which rendered him guilty of driving a motor vehicle with an unlawful breath-alcohol level. See § 316.1934(2)(c), Fla. Stat. (2004) (providing: “If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level.”).

Since July 29, 2001, Florida Department of Law Enforcement (FDLE) regulations have required the use of distilled or deionized water in monthly agency inspections of breath testing instruments. See Fla. Admin. Code R. llD-8.002(8)-(10) & 11D-8.006(2). In this case, the state filed a Notice of Possible Lack of Strict Compliance with FDLE. Rules, stating:

When performing the Agency Inspection of the Intoxilyer [sic] used in the instant case, tap water and/or filtered water may have been used for the alcohol free and alcohol free with acetone tests which may not be in strict compliance with Rule 11D-8.006 and the Agency Inspection Procedures FDLE/ATP Form 16.

Subsequently, Cubic moved the trial court for an order “suppressing any and all results of a breath test, in that the State used tap water, and not distilled or deionized water as required by law....”

A consolidated evidentiary hearing was held before Judge Peggy Gehl on the issues raised in Cubic’s motion. These issues were also raised by numerous other defendants. Several other judges were present, including Judge Michael Kaplan, the trial judge in the present case. The primary issue at the hearing was whether the State could satisfy its burden under section 316.1932(l)(b)2., Florida Statutes (2004). Section 316.1932(l)(b)2. states:

An analysis of a person’s breath, in order to be considered valid under this section, must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods. Any insubstantial differences between approved techniques and actual testing procedures in any individual case do not render the test or test results invalid.

§ 316.1932(l)(b)2., Fla. Stat. (2004).

The State presented expert testimony concluding that the use of tap water in the monthly testing of the Intoxilyzer 5000, the device used by BSO to conduct its breath-alcohol testing, would not affect the results in any way. However, the defense expert opined that the use of tap water could interfere with the test and cause a false positive, or artificially elevate a result.

Judge Kaplan granted Cubic’s motion and concluded: “The State has not proved by a preponderance of the evidence that the use of tap water during the monthly testing procedures represented an insubstantial difference between the methods approved by the Department of Law Enforcement and the actual testing procedures utilized by the law enforcement agency.”

The State argues that the trial court erred in excluding Cubic’s breath test results on the basis that the State failed to prove that the use of tap water during the monthly inspections of the In-toxilyzer 5000 was an insubstantial violation of approved testing methods pursuant to section 316.1932(l)(b)2. We disagree.

“A trial judge’s ruling on the admissibility of evidence will not be disturbed absent an abuse of discretion.” Dessaure v. State, 891 So.2d 455, 466 (Fla. 2004) (citing Blanco v. State, 452 So.2d 520 (Fla.1984)). In State v. Flood, 523 So.2d 1180 (Fla. 5th DCA 1988), the defendants filed motions to suppress the results of a breath-alcohol test on the grounds that the machine had been substantially altered without the approval of the Department of Health and Rehabilitative Services. The trial court agreed, excluding the results. Id. at 1180-81. The Fifth District affirmed, recognizing:

The state argues that there was no evidence presented demonstrating that further testing of the 1-3000 was necessary. There was conflicting evidence on this point and a defense expert, Dr, Jensen, stated that he felt the modification was a significant change, requiring recertification. Factual determinations are the exclusive province of the trial judge. Dooley v. State, 501 So.2d 18 (Fla. 5th DCA 1986). Here, the trial judge had the opportunity to observe the witnesses at the suppression hearing, evaluate their credibility and credentials, and observe the modification of the 1-3000. There was, therefore, substantial, competent evidence to support the county court’s conclusion that the 1-3000 required further testing.

Flood, 523 So.2d at 1182-83.

Similarly, the trial judge in the instant case was present at the consolidated evi-dentiary hearing. There, he had the opportunity to hear the conflicting evidence, observe the witnesses, and evaluate their credibility and credentials. He found the defense expert’s testimony more credible than the state expert’s testimony. Because it was his role to make the factual and credibility determinations that gave rise to his conclusion, we find no abuse of discretion.

The State also argues that the trial court erred in not allowing it to try to introduce Cubic’s breath test results through traditional evidentiary techniques. We decline to reach this issue, as it was not preserved. “A legal argument must be raised initially in the trial court by the presentation of a specific motion or objection at an appropriate stage of the proceedings.” Keech v. Yousef, 815 So.2d 718, 719 (Fla. 5th DCA 2002). “The failure to preserve an issue for appellate review constitutes a waiver of the right to seek reversal based on that error.” Id. at 720.

Affirmed.

KLEIN and MAY, JJ., concur.

      . Judge Gehl noted: "All the judges have agreed we will be deferring on the motion today and we are each going to rule individually after we've heard all the testimony and read all of the pertinent case law and heard the arguments.”


text:
    Michael M. NESBITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1991.
    District Court of Appeal of Florida, Fourth District.
    Jan. 3, 2007.

      Michael M. Nesbitt, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand From The Florida Supreme Court

PER CURIAM.

The supreme court recently quashed our March BO, 2005 opinion in this case and remanded the case for reconsideration in light of State v. Richardson, 915 So.2d 86 (Fla.2005). See State v. Nesbitt, 940 So.2d 1099 (Fla.2006). Michael M. Nesbitt sought rule 3.850 relief challenging his habitual offender sentence, arguing that the predicate offense was not sequential and that it concerned a probationary term. Nesbitt referenced a prior offense associated with L.T. 00-7832 for which a probationary term was imposed in August 2000, but also suggested that the trial court relied on the violation of probation disposition as the predicate conviction for the challenged habitual offender sentence. The problem with the latter, according to Nesbitt, is that the VOP sentence was imposed at the same sentencing hearing that resulted in the instant habitual offender sentence. Thus, he claimed that a sequential problem existed.

In accordance with our prior rulings, and though noting conflict, we reversed and remanded for further proceedings. See Nesbitt v. State, 912 So.2d 15 (Fla. 4th DCA 2005) (citing Puskac v. State, 872 So.2d 1008, 1008 (Fla. 4th DCA 2004), relying upon Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), supplemented on reh’g, 884 So.2d 950 (Fla. 4th DCA 2004)). Nesbitt’s case presented a problem given this court’s Richardson decision which precluded use of the August 2000 probationary term as a predicate.

The Florida Supreme Court resolved the conflict in State v. Richardson, 915 So.2d 86, 89 (Fla.2005), and on that authority quashed this court’s Nesbitt decision and remanded the matter for reconsideration upon application of Richardson. Richardson clarified that the sanction of probation is a “sentence” for purposes of applying the sequential conviction requirement of the habitual felony offender statute, section 775.084(5), Florida Statutes (1999). See also Teal v. State, 940 So.2d 1103 (Fla.2006) (applying Richardson to a community control sanction). Otherwise stated, the sanctions of both probation and community control are “sentences” for purposes of applying the sequential conviction requirement of the habitual offender statute.

Accordingly, Nesbitt’s August 2000 probationary sentence was a sufficient predicate. We therefore affirm the ruling of the circuit court.

STEVENSON, C.J., STONE and GROSS, JJ., concur.


author: ALTENBERND, Judge.

text:
    Eric Gabriel GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5199.
    District Court of Appeal of Florida, Second District.
    Jan. 5, 2007.

      James Marion Moorman, Public Defender, and Brad Permar, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Eric Gabriel Griffin appeals his judgment for sexual battery with threat of force and the resulting mandatory sentence of thirty years in prison as a prison releasee reoffender. We affirm Mr. Griffin’s conviction without further comment. We write to address various sentencing issues that were raised in the trial court by way of motions to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).

The circuit court entered Mr. Griffin’s judgment and sentence on November 18, 2004, and Mr. Griffin timely filed a notice of appeal. On June 29, 2005, Mr. Griffin’s appellate counsel filed an initial motion to correct sentencing error pursuant to rule 3.800(b)(2). The clerk of the circuit court issued a certificate on September 20, 2005, indicating that no ruling or order had been entered on this motion. Appellate counsel then filed a second or amended motion to correct sentencing error on November 17, 2005. This motion argued that certain documents admitted at sentencing to support the prison releasee reoffender sentence were not properly authenticated and were therefore inadmissible, and that certain costs were improperly imposed because the statutes regarding the costs were enacted after the date of Mr. Griffin’s offense.

On January 25, 2006, the circuit court issued an order requiring the State to respond to the second or amended motion to correct sentencing error. On January 30, 2006, however, the clerk of the circuit court issued a certificate indicating that no ruling had been issued and no order had been entered on the second motion. As a result, the parties proceeded to brief this appeal.

Thereafter, however, the circuit court acted upon the motion to correct sentencing error. The circuit court apparently granted the motion and held a new sentencing hearing at which it ensured that the documents supporting Mr. Griffin’s sentence were properly authenticated and entered into evidence. The circuit court then issued a new sentence on May 10, 2006.This “amended” sentence was otherwise identical in its terms to the initial sentence. Mr. Griffin filed a notice of appeal of the amended sentence. Instead of permitting a néw appeal of this judgment and sentence, we ordered the record to be supplemented with the amended sentence and the documents leading up to it.

Initially, we must reverse the amended sentence because the circuit court lacked jurisdiction to rule on the motion or enter the amended sentence when it did so. Pursuant to rule 3.800(b)(2)(B), the circuit court was required to rule on this motion on or before January 16, 2006, sixty days from the date the motion was filed. When the circuit court failed to rule on the motion within that time frame, the motion was deemed denied. Id. Once the period expired, the circuit court lacked jurisdiction to address the merits of the motion or enter an amended sentence. See Conroy v. State, 933 So.2d 687 (Fla. 2d DCA 2006). We therefore reverse the amended sentence. However we also conclude that the initial sentence, identical in terms to the amended sentence, should be affirmed, with the exception of certain costs the court imposed.

First, we conclude that any issue regarding the admissibility of evidence presented at the sentencing hearing to support prison releasee reoffender sentencing was waived when Mr. Griffin’s counsel failed to object to the evidence. It could not be resurrected by a motion to correct sentencing error. The second or amended motion to correct sentencing error asserted that the circuit court admitted into evidence a “crime and time” letter prepared by the Department of Corrections without proper authentication. Appellate counsel for Mr. Griffin' acknowledged that Mr. Griffin’s trial counsel had not objected to the document, and thus appellate counsel sought to preserve this issue for appeal as a “sentencing error” by objecting to the evidence in the second motion filed under rule 3.800(b)(2).

We conclude that the admissibility of such evidence is not a proper subject for a motion under rule 3.800(b). “Sentencing error” for purposes of this motion was never intended to cover any and all issues that arise at sentencing hearings and could have been subject to objection at the hearing. The rule was not intended to circumvent rules requiring contemporaneous objections or enforcing principles of waiver. It was not intended to give a defendant a “second bite at the apple” to contest evidentiary rulings made at sentencing to which the defendant could have objected but chose not to do so. It was not intended as a broad substitute for a postconviction claim of ineffective assistance of counsel for counsel’s representation at a sentencing hearing. Instead, it was intended to address errors to which the defendant had no meaningful opportunity to object and matters that rendered the sentence otherwise subject to review under rule 3.800(a).

Rule 3.800(b)(2) was enacted shortly after the enactment of the Criminal Appeal Reform Act of 1996. Based upon the legislature’s stated intent in that Act that “all terms and conditions of direct appeal and collateral review be strictly enforced ... to ensure that all claims of error are raised and resolved at the first opportunity,” see § 924.051(8), Fla. Stat. (Supp. 1996), the supreme court sought to establish a mechanism to preserve sentencing errors for appeal in circumstances in which the defendant did not have an adequate opportunity to register an objection. See Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.UO, and 9.600, 761 So.2d 1015, 1016 (Fla.2000).

Because sentencing documents are often created and served after the sentencing hearing, there has long been a problem with written sentences containing terms and conditions that were not imposed in open court and to which the defendant never received an opportunity to object. Rule 3.800(b) was created to address these issues. It also permits counsel to correct the kinds of issues that can be raised at any time because they render the sentence illegal. This distinction may admittedly be a little imprecise at times, but what is clear is that the motion was never intended to permit counsel to reopen a sentencing hearing merely to do a better job than was done at that hearing.

. This case provides a prime example of why the rule should not be applied to these circumstances. Mr. Griffin’s trial counsel appeared at sentencing and could have objected to the lack of authentication of the “crime and time” letter. His failure to do so waived this issue. Indeed, our record now reflects that counsel’s failure to object may well have arisen from the fact that the document’s contents were accurate and thus the document could have been properly authenticated, albeit by further effort and inconvenience to the State. When evidentiary rulings are unchallenged at sentencing, the defendant generally waives any objection. Of course, if the failure to object somehow prejudices the defendant — i.e., an unauthenticated document turns out to be inaccurate and the authentic document would not permit the sentence imposed — then the defendant may have grounds for a motion for post-conviction relief alleging ineffective assistance of counsel. We therefore affirm the imposition of the prison releasee reoffen-der sentence in this case.

Mr. Griffin’s second or amended motion to correct sentencing error is appropriate, however, as it relates to the imposition of three separate costs. Mr. Griffin committed his offense on November 2, 2002. When Mr. Griffin was sentenced in November 2004, the costs the court imposed included, among other items, a $65 cost' pursuant to section 939.185, Florida Statutes (2004), and costs of $2 and $150 pursuant to section 938.085, Florida Statutes (2004).

Section 939.185 was enacted effective July 1, 2004, see ch.2004-265, §§ 88, 109, Laws of Fla., and section 938.085 was enacted effective July 1, 2003, see ch.2003-114, §§ 3, 5, Laws of Fla. Thus neither statute was in effect at the time Mr. Griffin committed his offense in 2002. Notably, both statutes require the respective costs be imposed “when a person pleads guilty or nolo contendere to, or is found guilty of’ a crime. Facially, then, the statute does not rely on an offense date but would seem to apply to a person who enters a plea or is found guilty after the effective date of the statutes.

This court has held specifically that the costs called for by these statutes could not be imposed on a defendant who committed his crime prior to their effective dates. See Cutwright v. State, 934 S6.2d 667, 668 (Fla. 2d DCA 2006) (stating, “Costs may not be imposed where the authorizing statutes were enacted after the date of the offense. See Hayden v. State, 753 So.2d 720, 721 (Fla. 2d DCA 2000)”); see also Gonzalez v. State, 939 So.2d 224 (Fla. 2d DCA 2006) (involving sections 775.083(2) and 939.185, Florida Statutes (2004)); Waller v. State, 911 So.2d 226, 229 (Fla. 2d DCA 2005) (involving section 939.18, Florida Statutes (2003)); Pierce v. State, 779 So.2d 286 (Fla. 2d DCA 1998), quashed on other grounds, 734 So.2d 399 (Fla.1999) (involving costs for Juvenile Assessment Center and Teen Court Programs).

We acknowledge that these cases do not contain a detailed analysis of the application of principles of ex post facto to costs that are enacted after a defendant commits a crime but before the defendant is sentenced. Indeed, the State conceded error in Cutwright. Nevertheless, we follow this precedent and hold that the costs imposed here were improper.

In Ridgeway v. State, 892 So.2d 538 (Fla. 1st DCA 2005), the First District attempted a more detailed analysis of the application of ex post facto principles to costs imposed at sentencing. The First District specifically decided that imposing the cost required by section 939.185 on a defendant who committed his crime before its effective date did not violate the prohibition against ex post facto laws. The First District concluded, “Assessment of costs violates ex post facto prohibitions only when the length of an inmate’s sentence can be increased by failure to pay the costs.” Id. at 540. Because the First District also concluded that “the statute does not subject a violator to criminal penalties such as additional prison time or loss of gain-time for failure to pay the cost,” the court held that “the cost does not enhance punishment.” Id. at 540; cf. Goad v. Fla. Dep’t of Corr., 845 So.2d 880 (Fla.2003) (concluding that the Florida Civil Restitution Lien and Crime Victims’ Remedy Act’s provisions requiring a defendant to pay costs of incarceration were civil remedies not subject to ex post facto prohibitions). But see § 939.04, Fla. Stat. (2004) (providing, “[i]n all cases less than capital, wherein the defendant may be adjudged to pay costs, a capias may be issued, as is provided for the collection of fines and forfeitures”).

The issue seems more difficult than the existing precedent would acknowledge. While Ridgeway presents its position well, we are not convinced that we should treat costs contained in statutes that apply only in criminal cases to convicted criminal defendants as “civil.” This is particularly troublesome when the failure to pay those costs can lead to further incarceration, at least in the case of a sentence of probation. We cannot equate these costs with civil filing fees that are assessed against either the losing plaintiff or the losing defendant and that are enforceable only as a judgment lien. As such, we follow our precedent in Cutwright and remand for the circuit court to strike the $65 cost pursuant to section 939.185 and the $2 and $150 costs pursuant to section 938.085. We certify conflict with the First District’s opinion in Ridgeway, 892 So.2d 538.

Affirmed in part, reversed in part, and remanded to strike amended sentence and specified costs in initial sentence.

CASANUEVA and STRINGER, JJ„ Concur.

      . This motion argued that the imposition of a mandatory minimum term of imprisonment as a prison releasee reoffender was a form of "taxation without representation.” This argument lacks merit, and we do not further address it. See Calloway v. State, 914 So.2d 12, 13 (Fla. 2d DCA 2005).

      . This court has not prohibited the filing of successive motions under rule 3.800(b)(2) so long as the motions are filed prior to thé initial brief. Generally, we try to accommodate counsels’ efforts to resolve sentencing issues for defendants while they still have legal representation. There is a point, however, where such motions can become an abuse of the system. In this case, all of the issues raised in .the second motion could have been discovered in time to be filed with the initial motion.

      .We note that in Conroy we stated that the period could be extended for good cause, but not after it had expired. 933 So.2d at 687.

      . We are aware that some existing case law has reviewed similar issues under rule 3.800(b). See Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006) (holding a "crime and time" letter admissible where issue was preserved by motion under rule 3.800(b)).

      . We note that although Mr. Griffin's cost judgment cited section 938.085 in reference to both a $2 and a $150 cost, the statute actually references a single "surcharge” of $151, $1 of which is retained by the court and the remainder of which funds a Rape Crisis Program Trust Fund.

      . Given that these local county surcharges are often used to improve court facilities, it is also a little troubling to realize that the reasoning in Ridgeway might encourage state attorneys to delay criminal filings between the enactment of such a surcharge and its effective date in order to maximize revenue for the local courthouse.


author: VAN NORTWICK, J.

text:
    Richard L. SOBI and Karen L. Sukiennik, Appellants, v. FIRST SOUTH BANK, INC., Appellee.
    No. 1D06-0646.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.

      Justin I. Remol, Destín, for Appellants.
    Nickolas G. Petersen, Shalimar, and William H. Hughes and Cynthia S. Tunni-cliff of Pennington, Moore, Wilkinson, Bell <¾ Dunbar, P.A., Tallahassee, for Appellee.
   VAN NORTWICK, J.

Richard L. Sobi and Karen L. Sukiennik appeal a final judgment entered after a non-jury trial on their negligence and breach of contract claims against First South Bank, Inc., (First South), appellee. We agree with the trial court that, under the circumstances here, Florida law provides no remedy for appellants against First South and we affirm.

Appellants contracted to have a house constructed in Destín, Florida, to be used as a rental property. To finance the project, they obtained a construction loan from First South. In their underlying action, appellants alleged that the house was constructed in a defective manner. Specifically, they alleged that the house was built with a slab elevation of six feet four inches, eight inches below the seven foot minimum slab elevation required by the Walton County Building Code and the Federal Emergency Management Agency for the flood zone in which the subject property was located. Appellant filed an action against the contractors, Walton County, and First South, alleging, in pertinent part, that First South breached its duties to appellants when it continued to disburse funds under the construction loan without obtaining a flood elevation certificate. The appellants’ claims against the contractors and the county were settled or otherwise disposed of in another manner. The parties here proceeded to a non-jury trial on appellants’ negligence and breach of contract counts against First South.

Appellants argue that the trial court erred by ruling that the construction loan agreement between the appellants and First South did not require the bank to obtain a flood insurance certificate before making construction advances. We agree with the trial court that, although the construction loan agreement gave First South the right to require flood insurance, nothing in the construction loan agreement required First South to obtain a flood insurance certificate before funding construction draws. In addition, under Florida law, as a general rule a lender has no liability for construction defects. See Rice v. First Fed. Sav. & Loan Ass’n of Lake County, 207 So.2d 22 (Fla. 2d DCA 1968); see also First Wisconsin Nat’l Bank of Milwaukee v. Roose, 348 So.2d 610, 611 (Fla. 4th DCA 1977)(lender had no obligation to others to supervise construction and maintenance by the developer; the lender’s duty was confined to “the one established as a money lender and security holder.”). See also Armetta v. Clevetrust Realty Investors, 359 So.2d 540 (Fla. 4 th DCA 1978)(contract provisions inserted solely for protection of lender do not create duty to others on part of lender). Further, the trial court correctly ruled that the economic loss rule precludes appellant’s tort claims. Strickland-Collins Constr. Co. v. Barnett Bank of Naples, 545 So.2d 476 (Fla. 2d DCA 1989).

Finally, appellants’ attempt to create a remedy here based on the implied covenant of good faith, fair dealing, and commercial reasonableness is without merit. This implied covenant, see generally, Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1st DCA 1999), “must relate to the performance of an express term of the contract and is not an abstract and independent term of a contract which may be asserted as a source of breach when all other terms have been performed pursuant to the contract requirements.” Ament v. One Las Olas, Ltd., 898 So.2d 147, 149 (Fla. 4th DCA 2005)(quoting Hosp. Corp. of Am. v. Fla. Med. Ctr., Inc., 710 So.2d 573, 575 (Fla. 4th DCA 1998)).

Like the trial court, we have great empathy for the appellants’ financial loss which the record reflects they have suffered. Under these circumstances, however, Florida law does not provide them a remedy against their lender.

AFFIRMED.

WEBSTER and BENTON, JJ„ concur.


text:
    Orial BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6282.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2007.
    Orial Baker, 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.

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Willie N. MATHIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6222.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2007.
    Willie N. Mathis, pro se, Petitioner.
    Charlie Crist, Attorney General, and Sherri T. Rollison, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Steven P. GREER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5743.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2007.
    Steven P. Greer, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied. See Fla. R.App. P. 9.141(c)(4)(A).

ALLEN, WEBSTER, and THOMAS, JJ., concur.


text:
    Juan Marcos PEREZ, Appellant, v. James R. McDONOUGH, Florida Department of Corrections, Appellee.
    No. 1D05-5410.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2007.
    Juan Marcos Perez, pro se, Appellant.
    Charlie Crist, Attorney General, and Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

The circuit court’s order dismissing appellant’s habeas petition without prejudice to filing of a motion for post-conviction relief in the county where the judgment of conviction and sentence were rendered is AFFIRMED.

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


text:
    Howard C. HICKEY, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-3307.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2007.
    Howard C. Hickey, pro se, Appellant.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Howard Hickey appeals an order denying his motion for relief from an order imposing a lien on his inmate trust account to recoup filing fees and costs. The lien was imposed in connection with a mandamus proceeding in which Hickey challenged the outcome of a prison disciplinary proceeding that resulted in a forfeiture of gain-time. Appellee concedes error, correctly acknowledging that Hickey’s claim constituted a “collateral criminal proceeding,” and that there was thus no statutory authority to impose a lien. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005); Wagner v. McDonough, 927 So.2d 216 (Fla. 1st DCA 2006).

Accordingly, the order denying Hickey’s motion is reversed, and the matter is remanded to the lower tribunal with directions to dissolve the lien and direct the reimbursement of any funds withdrawn pursuant thereto.

REVERSED AND REMANDED.

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


text:
    Michael CHRISTMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6090.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2007.
    Michael Christmas, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied. See Fla. R.App. P. 9.141(c)(4)(A).

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


text:
    Morris MILLS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-5408.
    District Court of Appeal of Florida, First District.
    Jan. 9, 2007.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS and BENTON, JJ., ERVIN, III, RICHARD W., Senior Judge, concur.


author: WHATLEY, Judge.

text:
    In the Interest of S.E., a child. Department of Children and Family Services, Appellant/Cross-Appellee, v. D.W. and T.E., and Guardian Ad Litem Program, Appellees/Cross-Appellant.
    No. 2D05-6201.
    District Court of Appeal of Florida, Second District.
    Jan. 10, 2007.
    Douglas Sherman, Bartow, for Appellant/Cross-Appellee.

      Robert G. Hancock, Bartow, for Appel-lee/Cross-Appellant, T.E.
    Wendie Michelle Cooper, Orlando, for Guardian Ad Litem Program.
    No appearance for Appellee, D.W.
   WHATLEY, Judge.

The Department of Children and Family Services appeals a circuit court order titled, “Order Denying Petition for Termination of Parental Rights, but Finding Dependency as to Mother, [D.W.], and as to Father, [T.E.], and Scheduling Disposition and Directing Preparation of Final Judgment of Dependency as to Both Parents.” T.E. filed a cross-appeal challenging that part of the order finding that the child, S.E., was dependent. We reverse this cause for a new hearing on the Department’s petition to terminate parental rights because the circuit court improperly allowed T.E.’s expert to testify as to statements of facts and opinions contained in medical literature.

In its petition to terminate parental rights, the Department alleged that the parents engaged in egregious conduct toward S.E. or they had the capability and opportunity to prevent such and knowingly failed to prevent egregious conduct that threatened “the life, safety, or physical, mental or emotional health of the child.” At the hearing on the petition to terminate parental rights, the Department presented the testimony of Doctor Caroline Kerry, who testified that on February 28, 2005, she diagnosed S.E. with having both acute and subacute subdural hematomas on the right side of his brain. The subacute injury was two to three weeks old and the acute injury was a few hours old. Doctor Kerry testified that S.E. required emergency surgery to relieve intracranial pressure. Doctor Kerry opined that the child’s injuries, which included the subdural he-matomas, retinal hemorrhages, global brain injury, rib fractures and possible leg fractures; were indicative of shaken baby syndrome.

The Father presented the testimony of Doctor Ronald Uscinski, who testified that he did not believe that shaking a baby could cause injury to the brain. In support of this opinion, Doctor Uscinski testified regarding the contents of three articles published in medical literature. He first testified about an article published in the Journal of Neurosurgery in 1976 and 1978 concerning a Japanese study of adult patients with subdural hematomas. Doctor Uscinski also testified regarding the contents of an article titled “Shaken Baby Syndrome, a Clinical, Bio-Mechanical and Pathological Study,” which was also published in the Journal of Neurosurgery. Doctor Uscinski further related the contents of another article published in the same journal and testified, “I think it’s called Anthropomorphic, A-N-T-H-R-OP-O-M-O-R-P-H-I-C, Simulations of Falls, Impacts, and I forgot the entire title.” Doctor Uscinski testified that the conclusions reached by-the above articles supported his opinion on shaken baby syndrome. We conclude that the circuit court erred in allowing Doctor Uscinski to testify regarding the contents of these articles.

Section 90.706, Florida Statutes (2004), provides that statements of fact or opinion may be used to cross-examine an expert if the trial court or the expert recognizes it as authoritative:

Statements of facts 'or opinions on a subject of science, art, or specialized knowledge contained in a published treatise, periodical, book, dissertation, pamphlet, or other writing may be used in cross-examination of an expert witness if the expert witness recognizes the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative, or, notwithstanding nonrecognition by the expert witness, if the trial court finds the author or the treatise, periodical, book, dissertation, pamphlet, or other writing to be authoritative and relevant to the subject matter.

However, “an expert cannot bolster his or her testimony by testifying that a particular treatise supports an opinion.” Linn v. Fossum, 946 So.2d 1032, 1036, 2006 WL 3093186 (Fla. Nov. 2, 2006). As noted by the supreme court in Linn, a treatise is inadmissible hearsay, and when the expert’s testimony acts as a conduit for such, the opposing party cannot cross-examine and impeach the source of the hearsay. Id.

Similar to the present case, in Donshik v. Sherman, 861 So.2d 53 (Fla. 3d DCA 2003), the plaintiffs expert was allowed to testify regarding findings from an Asymptomatic Carotid Atherosclerosis Study. The Third District held as follows:

Section 90.706 does not permit statements in a learned treatise to be used as substantive evidence since the treatise would be hearsay if offered as substantive evidence.... Florida Courts have uniformly held that published treatises, books or writings such as the ACAS report, which purport to be authoritative, may not be used on direct examination as substantive proof to bolster the credibility of a party’s expert witness.

Id. at 56; see also Cordoba v. Rodriguez, 939 So.2d 319, 323 (Fla. 4th DCA 2006) (holding that it was fundamental error to allow expert to testify about an article in the Palm Beach Post, which article concluded that ninety-nine percent of automobile accidents result in lawsuits, to support his opinion concerning the appellees’ injuries); Schwarz v. State, 695 So.2d 452, 455 (Fla. 4th DCA 1997) (noting that statements in a treatise are inadmissible during the direct examination of an expert witness).

In the present case, Doctor Uscinski improperly bolstered his opinion by testifying regarding the contents of three articles published in the Journal of Neurosurgery. These articles were inadmissible hearsay and permitting the presentation of this otherwise inadmissible hearsay “merely because an expert relied on it in forming an opinion undermines the rules of evidence that would have precluded its admission.” Linn, 946 So.2d at 1038. The Department was unable to cross-examine the authors of the articles regarding their qualifications or any aspect of their studies.

Accordingly, we reverse this cause for a new trial on the Department’s petition to terminate the parental rights of the Father and the Mother.

SILBERMAN, J., and DANAHY, PAUL W., Senior Judge, Concur.

      . The cross-appeal is therefore moot.