author: EVANDER, J.

text:
    Brian Z. FRANCE, Appellant, v. Megan P. FRANCE, Appellee.
    No. 5D11-1477.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.

      Stuart H. Singer, Jon L. Mills and Alec H. Schultz, of Boies, Schiller & Flexner LLP, Fort Lauderdale, and Charles H. Woerner, Jr., of Charles H. Woerner PA, South Daytona, for Appellant.
    John E. Stephenson, Jr., of Alston & Bird, LLP, Pro Hac Vice, Atlanta, Georgia, for Appellant.
    Brooks C. Miller, P.A., and Dinah Stein, of Hicks, Porter, Ebenfeld & Stein, P. A., Miami, for Appellee.
   EVANDER, J.

Brian France filed a three-count amended complaint against his former wife, Megan France, based on her alleged illegal recording of telephone calls between the parties. Specifically, Mr. France alleged that he was in Florida at the time of the telephone calls and that the recording of the calls took place without his consent, in violation of Florida’s Security of Communications Act. See § 934.03, Fla. Stat. (2009). Ms. France moved to dismiss the amended complaint on the grounds that she was not subject to personal jurisdiction in Florida because the alleged recorded telephone calls occurred while she was in North Carolina, her place of residence. Unlike Florida, North Carolina does not prohibit a party to a telephone call from surreptitiously recording that call. In granting the motion to dismiss, the trial court found that Mr. France had failed to allege the commission of a tort in Florida.

The standard of review of a trial court’s determination of personal jurisdiction is de novo. Wendt v. Horowitz, 822 So.2d 1252, 1256 (Fla.2002). Because we conclude that under existing Florida law, Mr. France sufficiently alleged the commission of a tort within this State, we reverse.

Florida courts apply a two-step test to determine whether long-arm jurisdiction over a nonresident defendant is proper in a given case. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989). First, the complaint must allege sufficient jurisdictional facts to bring the nonresident defendant within the ambit of Florida’s long-arm statute. Id. Second, there must be sufficient “minimum contacts” between the nonresident defendant and the State of Florida to satisfy the Fourteenth Amendment due process requirements. Id.

In the instant case, Mr. France alleged that his former wife was subject to Florida’s jurisdiction because she had committed a tort within the State:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.

§ 48.193(l)(b), Fla. Stat. (2009). Based on its conclusion that the amended complaint failed to allege the commission of a tort in Florida, the trial court concluded that Mr. France failed to satisfy the first step of the Venetian Salami two-prong test.

The Florida Security of Communications Act makes it a crime to intentionally intercept a person’s electronic communications, including a telephone call, without prior consent of all parties to the communication, and permits a private cause of action providing for a minimum of $1,000 in liquidated damages for an interception in violation of the Act. See §§ 934.03, .10, Fla. Stat. (2009). On at least two occasions, the Second District Court of Appeal has wrestled with the issue of whether, for jurisdictional purposes, the “interception” occurs in Florida where the plaintiff is in Florida but the “recording party” is in another state.

In Koch v. Kimball, 710 So.2d 5 (Fla. 2d DCA 1998), the proceedings arose out of the defendant’s unconsented-to tape recording of a telephone call that she placed from her home in Georgia to the plaintiff, who was at his residence in Tampa, Florida. In affirming the trial court’s denial of the defendant’s motion to dismiss, our sister court concluded that the actual “interception” occurred where the plaintiffs statement was made (Florida), not where the communication was ultimately heard (Georgia). The Koch court went on to determine that not only had the plaintiff alleged sufficient jurisdictional facts to bring the action within Florida’s long-arm statute, but that sufficient minimum contacts existed between the defendant and Florida so as to satisfy any due process concerns.

Having found sufficient jurisdictional facts to bring the action within the long arm statute, we turn to whether there were sufficient minimum contacts to satisfy due process. The question is whether [defendant] “should reasonably have anticipated being haled into court” in Florida.... Since [plaintiff] alleged that [defendant] committed the intentional tort of violation of the Florida Security of Communications Act by expressly calling Florida with the knowledge that the only impact of her action would be in Florida, we conclude that [defendant’s] actions were not the random, fortuitous or attenuated actions that courts seek to avoid pinning jurisdiction upon.

Koch, 710 So.2d at 7 (citations omitted).

Ten years later, sitting en banc, the Second District Court of Appeal expressly receded from Neely Kountze v. Kountze, 996 So.2d 246 (Fla. 2d DCA 2008). In its unanimous decision, the Kountze court determined that a Florida statute creating a private cause of action for the nonconsen-sual interception of a communication originating within Florida cannot transform a defendant’s out-of-state act of recording that communication, standing alone, into a tortious act within Florida for jurisdictional purposes. In reaching its conclusion, the Kountze court acknowledged that it was influenced by the fact that the act was neither illegal in the state where the defendant “actually committed it,” nor under the federal law applicable to interstate telephone calls. Id. at 252.

The Kountze court further warned that the ramifications of the opposite holding should not be overlooked:

If the legislature could create a statutory cause of action that deemed an action in another state to have occurred in Florida, and then use that deemed action as the basis to find tortious conduct in Florida justifying jurisdiction over the defendant, then section 48.193(l)(b) would permit practically any regulated act committed anywhere in the world affecting a person in Florida to subject the actor to the jurisdiction of the courts of Florida even if that person had no other contacts with the state.

Id. at 252-53. The Kountze court suggested that such a broad application would raise serious constitutional concerns.

Like the Kountze court, we are troubled by the ramifications of holding that a nonresident defendant subjects himself or herself to Florida’s jurisdiction solely by surreptitiously recording a telephone call with an individual in Florida, particularly where the defendant’s actual mechanical act of “turning on the recording equipment” occurs in a state where such act is legal.

Indeed, the United States Supreme Court has held that “[a] State cannot punish a defendant for conduct that may have been lawful where it occurred.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 421, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003) (citing BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 572, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996)). In Campbell, the plaintiffs brought an action against State Farm for bad faith, fraud, and intentional infliction of emotional distress, heavily relying on State Farm’s handling of similar claims nationwide. The jury awarded the plaintiffs $2.6 million in compensatory damages and $145 million in punitive damages, which the trial court reduced to $1 million and $25 million, respectively. On appeal, the Utah Supreme Court reinstated the $145 million punitive damages award. In reversing the Utah Supreme Court’s decision to reinstate the jury’s $145 million punitive damages award, the United States Supreme Court stated, inter alia, that a jury must be instructed that it may not use evidence of out-of-state conduct to punish a defendant for action that was lawful in the jurisdiction where it occurred. Campbell, 538 U.S. at 422, 123 S.Ct. 1513.

In providing a private cause of action, section 934.10 would appear to - be punitive in nature. The statute does not require proof of actual damages and expressly authorizes the award of punitive damages. Furthermore, as observed by the Kountze court, for Ms. France to have committed an act that allowed for a civil remedy under section 934.10, it would seem to be necessary that her conduct in North Carolina constituted a criminal violation of section 934.03 in Florida. See Kountze, 996 So.2d at 251 n. 2. We question whether Ms. France’s conduct would subject her to criminal prosecution in this state.

Notwithstanding our aforestated concerns, we feel compelled to reverse the trial court’s dismissal order based on the Florida Supreme Court’s, express approval of Koch in Acquadro v. Bergeron, 851 So.2d 665, 671 n. 11 (Fla.2003). In Acqua-dro, our supreme court held, inter alia, that alleged statements made by telephone into this state by a nonresident defendant, which allegedly resulted in plaintiffs false arrest and malicious prosecution, were sufficient to establish personal jurisdiction over the defendant. Significantly, the Ac-quadro court apparently found Koch to have been correctly decided:

Similarly, the Second District in Koch considered whether a tape-recorded telephone call between a nonresident defendant and a Florida resident plaintiff could serve as the basis for personal jurisdiction under section 48.193(l)(b). The Second District held that the tor-tious act occurred in Florida because the interception occurred where the communication was uttered, and thus the nonresident defendant was subject to personal jurisdiction under section 48.193(l)(b). Thus, we approve the Second District’s decision in Koch because like Wendt, the decision held that a telephonic communication into Florida can constitute a tortious act under section 48.193(l)(b).

851 So.2d at 671 n. 11 (emphasis added) (citations omitted). Based on this language, we conclude that the trial court erred in granting the former wife’s motion to dismiss for lack of personal jurisdiction. We certify direct conflict with Kountze.

REVERSED and REMANDED; CONFLICT CERTIFIED.

LAWSON and COHEN, JJ., concur.

      . Count I of the amended complaint was for violation of the Florida Security of Communications Act; Count II was for invasion of privacy; and Count III was for public disclosure of private facts. We agree with the trial court that if Count I fails to allege sufficient facts to permit Florida courts to exercise personal jurisdiction over Ms. France, then Counts II and III similarly fail.

      . "Intercept” is defined to mean the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device. § 934.02(3), Fla. Stat. (2009).

      . Like Koch, the Kountze case was referenced in a subsequent Florida Supreme Court case. See Internet Solutions Corp. v. Marshall, 39 So.3d 1201, 1209 (Fla.2010). However, in its discussion of Kountze, the court neither approved nor disapproved the Kountze decision.
      There is language in Wendt that we believe is supportive of Ms. France's position. There, the Florida Supreme Court stated that a nonresident defendant can commit a tortious act in Florida under section 48.193(l)(b) through his or her telephonic, electronic or written communications into the state. 822 So.2d at 1260. However, the court cautioned that "the cause of action must arise from the communications." Id. We would respectfully suggest that in the instant case, Mr. France's alleged cause of action arises from the act of recording communications, not the communications themselves.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Manuel HERRERA, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4382.
    District Court of Appeal of Florida, Second District.
    June 1, 2012.
   PER CURIAM.

Affirmed. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in postconviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed; question certified.

ALTENBERND, KHOUZAM, and MORRIS, JJ., Concur.


author: LAGOA, J.

text:
    Edson Carlos DE CAMPOS, Appellant, v. Yolanda Carmen FERRARA, Appellee.
    No. 3D10-3009.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied July 24, 2012.

      Nancy A. Hass, Hallandale Beach, for appellant.
    Lyubov Zeldis, Ft. Lauderdale, for ap-pellee.
    Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   LAGOA, J.

Edson Carlos De Campos (“Former Husband”), appeals the denial of his Petition to Determine Entitlement to and Award Attorney’s Fees and Costs and the denial of his rehearing motion. For the following reasons, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

On February 22, 1991, a Final Judgment dissolving the parties’ marriage was entered by the trial court, which incorporated the parties’ Property Settlement Agreement. The trial court also retained jurisdiction to enforce the Final Judgment and the Property Settlement Agreement. Pursuant to the terms of the parties’ Property Settlement Agreement, the parties were each to receive one-half of the proceeds from the sale of the parties’ company, Plant Care.

On August 29, 2008, in violation of the trial court’s Final Judgment and the parties’ Property Settlement Agreement, Yolanda Carmen Ferrara (“Former Wife”) sold the parties’ business, Plant Care, without revealing the sale of the business to the Former Husband. The Former Wife also misappropriated all of the proceeds from the sale of Plant Care. In addition, once the sale of the business was ultimately revealed to the Former Husband, the Former Wife fraudulently misrepresented the amount of the proceeds that resulted from the sale in an effort to reduce any potential liability to the Former Husband.

On November 5, 2008, the Former Husband filed a Verified Emergency Supplemental Petition for an Ex-Parte Temporary Injunction Preserving the Status Quo and Freezing Sales Proceeds, for an Order Compelling Payment, Contempt, and Other Relief with the trial court. The trial court determined that the Former Husband’s Petition should be treated as a petition for enforcement and granted a temporary injunction. The Former Wife subsequently filed an Emergency Petition to Dissolve the Injunction and argued that she had already previously satisfied the requirements of the Property Settlement Agreement. Specifically, the Former Wife contended that in February 1993 she incorporated a business called Plant Care, Inc. and transferred the assets and liabilities of Plant Care to Plant Care, Inc. The Former Wife argued that this constituted a “sale” of the business within the meaning of the Property Settlement Agreement and, in accordance therewith, she paid Former Husband $48,000, which constituted approximately half of the sales of Plant Care at the time of the transfer from Plant Care to Plant Care, Inc. The Former Husband contended that the $48,000 payment did not relate to Plant Care, Inc.

The trial court granted the Former Wife’s Petition to Dissolve the Temporary Injunction and ordered that the sum of $152,500, which represented fifty percent of the proceeds from the 2008 sale of the assets of Plant Care, Inc., be held in escrow until the trial court held an evidentia-ry hearing on the Former Husband’s Petition for Temporary Injunction Preserving the Status Quo and Freezing Sales Proceeds for and an Order Compelling Payment, Contempt and Other Relief. A final evidentiary hearing was subsequently held on November 17, 2009. The trial court ruled in favor of the Former Husband, concluding that the $48,000 paid by the Former Wife to the Former Husband in 1998 was for the Former Husband’s contributions to the construction of the home that the parties resided in during their marriage, and that it did not represent payment for any interest in, or value of, Plant Care. The trial court further ruled that the Former Husband was presently entitled to one-half of the net proceeds received by the Former Wife at the closing of the sale of Plant Care, Inc. on August 28, 2008. The trial court deferred ruling on the issue of whether the Former Husband was entitled to an award of attorneys’ fees in the matter and the amount, if any, of such fees.

On December 17, 2009, the Former Husband filed his Petition to Determine Entitlement to and Award Attorney’s Fees and Costs and a hearing was held before the trial court on March 18, 2010. On May 3, 2010, the trial court entered an Order denying the Former Husband’s request for an award of attorney’s fees and costs from the Former Wife. The trial court determined that the Former Husband’s action was essentially an equitable declaratory proceeding to construe and enforce the parties’ Property Settlement Agreement. Applying Flanders v. Flanders, 516 So.2d 1090 (Fla. 5th DCA 1987), the trial court concluded that: (1) the property settlement agreement, not section 61.16, Florida Statutes (2010) governed the issue of entitlement to attorney’s fees, and (2) because the property settlement agreement at issue did not provide for an award of attorney’s fees, the Former Husband was not entitled to fees.

On May 18, 2010, the Former Husband filed a Motion for Rehearing and a hearing was held. On October 20, 2010, the trial court entered an Order denying the Former Husband’s Motion for Rehearing. While the trial court expressed its belief in both Orders that equity entitled the Former Husband to an award of attorney’s fees from the Former Wife, it concluded that it was bound by the authority of Flanders to deny the Former Husband’s Petition for attorney’s fees. This appeal ensued.

II. ANALYSIS

Nature of the Proceedings Below

The Former Husband contends that the trial court erroneously relied upon Flanders in denying his request for an award of attorney’s fees and costs from the Former Wife, as the pleading filed with the trial court was not an equitable declaratory proceeding to construe the parties’ Property Settlement Agreement but a pleading to enforce it. Although the trial court correctly sought to look to the “real legal substance” of the proceedings before it in order to determine the Former Husband’s entitlement to an award of attorney’s fees, we cannot agree with the trial court’s conclusion that the proceedings were essentially declaratory in nature. At their essence, the proceedings before the trial court were for enforcement of a final judgment previously entered by the court. Therefore, the issue of the Former Husband’s entitlement to attorney’s fees is properly governed by section 61.16(1), Florida Statutes.

In Flanders, a sale of jointly owned marital property was made pursuant to the parties’ property settlement agreement. Flanders, 516 So.2d at 1091. When the parties could not agree as to the distribution of the sale of proceeds, the ex-wife filed a Petition for Accounting and for Equitable Distribution of Property Proceeds, and the ex-husband filed a Motion for Enforcement of the Final Judgment. Id. The trial court construed the stipulated property settlement, ordered a division of the sale proceeds according to his interpretation of the parties’ agreement, and ordered the ex-husband to pay an award of attorney’s fees to the ex-wife. Id. The ex-husband appealed the award of attorney’s fees and the court reversed, holding that

[I]n real legal substance, this [was] merely an equitable declaratory proceeding to construe the parties’ property agreement and to enforce it. Neither party is entitled to an award of attorney’s fees because the property settlement agreement contains no provision for attorney’s fees in litigation involving the agreement, and section 61.16, Florida Statutes, should not be applied.

Id. at 1092.

A petition for a declaratory judgment asks the court to define the legal relationship between the parties and them rights with respect to the matter before the court, without ordering that anything be done or awarding damages. “Section 86.011(1), Florida Statutes (2009), confers upon the circuit courts jurisdiction to render declaratory judgments as to the existence or nonexistence of any ‘immunity, power, privilege or right.’ However, in order to properly invoke the jurisdiction of the circuit court, the party seeking a declaration must ... show that he is in doubt as to the existence or nonexistence of some right or status, ... [and] that there is a bona fide, actual, present, and practical need for the declaration....” State, Dep’t of Envtl. Prot. v. Garcia, — So.3d -, -, 2011 WL 3300540 (Fla. 3d DCA 2011); see also Kelner v. Woody, 399 So.2d 35 (Fla. 3d DCA 1981).

There was no such doubt on the part of the Former Husband in this case. The parties’ Property Settlement Agreement provided, in pertinent part, that the husband “is to receive one-half of the proceeds from the sale of the company, Plant Care, which is owned by [the wife].” The Former Husband had no doubt as to his rights under the parties’ Property Settlement Agreement and was merely seeking to enforce the Agreement by compelling the Former Wife to provide him with his equal share of the proceeds from the sale of Plant Care. He did not assert any “doubt about the existence or non-existence of his rights or privileges.” Garcia, — So.3d at - (quoting Conley v. Morley Realty Corp., 575 So.2d 253, 255 (Fla. 3d DCA 1991)); see also Kelner, 399 So.2d at 38. Moreover, the Former Wife did not contest the Former Husband’s rights under the Property Settlement Agreement. Rather, she contended that the Former Husband’s rights already had been satisfied and her obligations under the agreement had been discharged.

Unlike Flanders, the trial court, here, was not called upon nor required to interpret or construe the parties’ Property Settlement Agreement. The trial court was required to determine whether the Former Husband’s rights under the Property Settlement Agreement had been satisfied, or whether enforcement of those rights was required. Therefore, this was an enforcement proceeding to enforce the parties’ Property Settlement Agreement, not an action to interpret or declare the parties’ rights under the agreement. Flanders is therefore distinguishable on that basis.

Because the petition in this matter invoked the trial court’s jurisdiction under chapter 61, which it had acquired and retained over the Former Husband and Former Wife in the dissolution proceedings, to enforce the agreement as incorporated into the judgment, section 61.16(1) is applicable to the proceedings below. Cf. Battista v. Battista, 585 So.2d 459, 461 (Fla. 1st DCA 1991) (reversing award of section 61.16(1) fees as petition for declaratory judgment, which was a separate action, was not filed under chapter 61 and “§ 61.16, Florida Statutes (1989), does not apply in the absence of a marital relationship unless the matter pertains to an enforcement or modification of the final decree”).

Law Governing Parties' Entitlement to Fees

The Former Wife contends that the parties’ Property Settlement Agreement governs the Former Husband’s rights to fees and she argues that the absence of a fee award provision in the settlement agreement precludes a statutory fee award under section 61.16(1). Florida courts generally have held that a party to a property settlement agreement can waive his statutory right to an award of attorney’s fees in an enforcement proceeding, but such waiver depends upon express language to that effect. See Sasnett v. Sasnett, 683 So.2d 177, 178 (Fla. 2d DCA 1996) (“In order to find that a waiver of rights has occurred, the language used in the agreement must clearly and unambiguously express waiver or the language must be such that an interpretation of the agreement as a whole can lead to no other conclusion but waiver.”); Scott v. Scott, 303 So.2d 683, 684 (Fla. 4th DCA 1974) (“Just as the award of attorney’s fees is dependent upon express authority to that effect (statute or contract) likewise the waiver of attorney fees should also be dependent upon express language which we find lacking in instant case.”); Posner v. Posner, 237 So.2d 186, 188 (Fla. 3d DCA 1970).

The parties’ Property Settlement Agreement contains neither a provision for the award of attorney’s fees and costs nor an express waiver of attorney’s fees and costs. Because there is no language, express or implied, in the agreement before us that can be construed as an intent to waive attorney’s fees and costs, the terms of the parties’ Property Settlement Agreement do not bar the Former Husband from seeking an award of attorney’s fees under section 61.16(1).

III. CONCLUSION

Because we find that the proceedings below were enforcement proceedings under chapter 61, Florida Statutes, and because we find that section 61.16(1), Florida Statutes (2010), rather than the parties’ Property Settlement Agreement, governs the issue of entitlement to attorney’s fees, we reverse the trial court’s order and remand for the trial court to determine the Former Husband’s entitlement to attorney’s fees under section 61.16(1).

Reversed and remanded.

      . Section 61.16(1), Florida Statutes, provides, in pertinent part, as follows:
      The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals..

      . See e.g., Bane v. Bane, 775 So.2d 938, 943 (Fla.2000); Vitale v. Vitale, 31 So.3d 970 (Fla. 4th DCA 2010); Ulbrich v. Coolidge, 935 So.2d 607 (Fla. 4th DCA 2006); Dean v. Dean, 655 So.2d 243 (Fla. 3d DCA 1995).


author: SUAREZ, J.

text:
    Alba G. TYLINSKI and Cecilia M. Tylinski, Appellants, v. KLEIN AUTOMOTIVE, INC., a Florida corporation d/b/a Beach Honda, Appellee.
    No. 3D10-2232.
    District Court of Appeal of Florida, Third District.
    June 6, 2012.
    Rehearing Denied July 9, 2012.
    Richard F. Hussey, Fort Lauderdale, for appellants.

      Fulmer LeRoy Albee Baumann and Michael P. McCahill and Paul Eza, Oakland Park, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Alba G. Tylinski and her daughter, Cecilia M. Tylinski, appeal from a final judgment denying their motion for attorney’s fees and a directed verdict in favor of counter-defendant Klein Automotive. We affirm.

Alba and Cecilia Tylinski (“Tylinskis”) jointly purchased a new car from Klein Automotive, Inc., d/b/a Beach Honda (“Beach Honda”). The finance manager for the car dealer, Bryan Elparin, handled the transaction. After negotiations, the parties agreed to a Retail Order Contract (“ROC”), and a Retail Installment Sale Contract (“RISC”) that set forth the financed portion of the deal. Both the ROC and RISC reflected an allowance of $2,000 for the Tylinskis’ 1995 Honda’ Accord trade-in, and a $4,000 cash down payment. While Cecilia’s credit was inadequate to obtain financing for the purchase, Alba’s credit was excellent, and with Alba on the contract the Tylinskis were told that the purchase and financing agreement had been approved. The Tylinskis testified that they promptly paid the $4,000 in cash to Mr. Elparin, and that after he placed the cash in his desk drawer they did not see the money again. They also testified that they were not given a receipt for the $4,000 cash they gave Mr. Elparin. Beach Honda allowed the Tylinskis to drive off the lot in their new 2006 Honda Civic.

Subsequently, the financing agreement was assigned to American Honda Finance Corporation, and several days later the Tylinskis were informed that American Honda declined to approve the financing. As a result, the parties came back to Beach Honda and entered into a second set of ROC and RISC contracts that reflected a new financing agreement with terms substantially the same as the first. As in the first set of contracts, the ultimate amount financed reflected the $2,000 trade-in allowance and the $4,000 cash down payment. The Tylinskis once again, drove the new car off the lot. Cecilia made her first two payments under the agreement. Beach Honda assigned the second RISC to Citifinancial. The testimony was that Beach Honda then claimed it could not find the $4,000 and cancelled the assignment.

According to the Tylinskis’ testimony, personnel at Beach Honda began harassing them later that month for the $4,000 down payment that the Tylinskis claimed to have initially paid to the dealership via its employee, Bryan Elparin. The Tyl-inskis alleged that Beach Honda contacted them on roughly twenty separate occasions, threatened them with repossession, criminal charges of grand theft auto, ruination of their credit, and finally a civil suit. The Tylinskis appear to have unsuccessfully attempted to resolve the matter with Beach Honda.

A month and a half later, in September of 2006, the Tylinskis entered into yet a third Retail Order Contract and a third Retail Installment Sales Contract with Beach Honda for the same car. Once again, both contracts reflected the $2,000 trade-in allowance and the $4,000 cash down payment. According to the Tylinsk-is, Beach Honda’s representative agreed that the dealership would “eat” the sum to resolve the dispute over the missing $4,000. The Tylinskis were, for a third time, allowed to drive the car off of the lot. The third RISC was assigned by Beach Honda to Wells Fargo. Over the next six months, the Tylinskis made timely, regular payments.

Then, on March 21, 2007, Beach Honda filed suit against the Tylinskis for breach of contract as a small claims summary procedure action, seeking recovery of the $4,000. The suit alleged breach of the ROC for failure to pay the $4,000. In response, the Tylinskis counterclaimed, seeking damages for deceptive and unfair trade practices, slander, and violations of the Consumer Collections Practices Act, and subsequently added a claim for punitive damages. The matter was then transferred to Circuit Court. After a bench trial, the court entered final judgment in favor of the Tylinskis as to Beach Honda’s claim for breach of contract, and granted an involuntary dismissal to Beach Honda on all counts of the Tylinskis’ counterclaims. The Tylinskis now appeal the involuntary dismissal as to their counterclaims, and seek attorney’s fees and costs as the prevailing party in their defense against Beach Honda.

Beach Honda argues that the Tylinskis are not entitled to attorney’s fees because the document sued upon and attached to the Complaint, the Retail Order Contract, does not contain a provision for attorney’s fees. The financial contract is contained in the RISC, and that contract does contain an attorney’s fee provision, but that is not the document upon which Beach Honda sued. Beach Honda sued only for breach of the ROC. The RISC was not admitted as an exhibit at trial. The Tylinskis’ Answer to the Complaint clearly asserts a claim for 57.105(7) fees, but it was based on the ROC, which does not contain an attorney’s fee provision. See Stockman v. Downs, 573 So.2d 835, 838 (Fla.1991) (“[A] party seeking attorney’s fees pursuant to statute or contract must plead entitlement to such fees.”). The Tyl-inskis prevailed in their defense against the dealership on the dealership’s suit to recover the cash down payment. We understand the Tylinskis’ argument that, but for the financial commitment reflected in the RISC, the dealership would not have allowed them to drive the car off the lot. Nevertheless, the dealership sought recovery under the ROC, not the RISC; there is no contractual avenue for recovering attorney’s fees based on the ROC, and the Tylinskis did not plead any statutory basis for recovering attorney’s fees other than § 57.105(7). Generally, an order granting or denying attorney’s fees and costs is reviewed on an abuse of discretion standard. See Thomas v. Perkins, 723 So.2d 293 (Fla. 3d DCA 1998). Because we can find no abuse of discretion based on this record, we must reluctantly affirm the judgment denying attorney’s fees to the Tylinskis in the breach of contract action.

The Tylinskis also appeal from the trial court’s grant of Beach Honda’s motion for involuntary dismissal of their counterclaims against Beach Honda. The standard of review on appeal of a trial court’s ruling at a bench trial on a motion for involuntary dismissal is the same as the test used by the trial court in ruling on a directed verdict at a jury trial; a motion for directed verdict should be granted when there is no reasonable evidence upon which a jury could legally predicate a verdict in favor of the non-moving party. See Etheredge v. Walt Disney World Co., 999 So.2d 669, 671 (Fla. 5th DCA 2008); Craigside, LLC v. GDC View, LLC, 74 So.3d 1087 (Fla. 1st DCA 2011) (holding that, on appeal of a judgment entered after a bench trial, while the parties are entitled to de novo review of the trial court’s legal rulings, an appellate court is bound by the trial court’s findings of fact where competent, substantial evidence supports the findings). In this bench trial, the trial court weighed all of the presented evidence, considered the testimony of witnesses, and after hearing argument from both parties concluded that the Tylinskis had not met their burden of proof in their counterclaims for slander, deceptive and unfair trade practices or violation of the Consumer Debt Practices Act. Based on our standard of review, we find no error and must affirm.

Affirmed.

      . The Retail Order Contract specifically states that the order form is not evidence of any cash payment and that cash payments are evidenced only by a separate receipt.

      . The record indicates that Mr. Elparin was subsequently terminated by Beach Honda for "performance” and "violation of policies and procedures.”

      . Only the face page of the second, July 1, 2006, ROC was attached to the Complaint, and the face of that document plainly references terms and conditions contained "on the reverse side of this order” that are not attached to the Complaint.

      . The attorney’s fee provision states, "If we hire an attorney to collect what you owe, you will pay the attorney’s fee and court costs as permitted by law.”

      . Section 57.105(7), Florida Statutes (2011) provides that where a contractual provision permits prevailing party attorneys’ fees to one party when that party is required to take action to enforce the contract, the court may allow reasonable attorneys’ fees to the other party when that other party prevails in the action. Section 57.105(7) thus provides for mutuality of attorneys' fees in contract cases.

      .The trial court found the Tylinskis’ testimony regarding the $4,000 cash down payment credible.

      . We agree with our colleague who informed Beach Honda at oral argument that it was very lucky in its procedural posture in the trial court below. We would add that Beach Honda is very lucky that we are, in this case regretfully, bound by our standard of review.


text:
    Scott KATZMAN, M.D. and Advanced Orthopaedics, P.A., Petitioners, v. RANJANA CORP., d/b/a Lakewood Park Liquor & Pub, Tammy Green and Edward Green, Respondents.
    No. 4D11-4188.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied July 10, 2012.

      Kimberly P. Simoes and Mario B. Si-moes of The Simoes Law Group, P.A., Deland, for petitioners.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for respondent Ranjana Corp., d/b/a Lakewood Park Liquor & Pub.
   PER CURIAM.

Petitioners Scott Katzman, M.D. (Katz-man) and Advanced Orthopaedics, P.A. (P.A.) seek certiorari review of a trial court order denying their motion for protective order, requiring them to respond to a subpoena duces tecum, for deposition by respondent Ranjana Corp., d/b/a Lakewood Park Liquor & Pub (Ranjana). We grant the petition, quash the order, and return the cause to the trial court for further proceedings consistent with this decision.

Katzman is the treating physician for respondent Tammy Green, who was injured in a slip and fall accident at a bathroom at respondent Ranjana’s business premises. Green was referred to Katzman by another doctor, not by an attorney. Tammy and Edward Green filed suit against Ranjana for their injuries. Katz-man and employees of the P.A. provided medical services to Tammy Green pursuant to a letter of protection (LOP) with the plaintiffs and their attorneys, whereby payment for medical services would come from any recovery obtained in the lawsuit.

According to respondent Ranjana, Katz-man and the P.A. charged Tammy Green more than $150,000 in medical bills for four procedures and treatments from August, 2008 through April, 2010. Counsel for Katzman and the P.A. represented to the court at a subsequent hearing that the procedures performed on Tammy Green were two endoscopic discectomies under fluoroscopy, a thoracic fusion and a sacroiliac fusion. He represented that these types of discectomies, which took a significant amount of time, were paid for regularly by Medicare. The fusions were said to have required overnight hospital stays and were serious procedures. No contrary evidence was presented.

The Greens listed Dr. Katzman in their amended expert witness disclosures as an expert witness to testify at trial. Ranjana set Katzman and the P.A. for deposition and served on them a subpoena duces tecum, calling for production of the following information to which they objected:

2. The amounts Dr. Katzman has collected from health insurance coverage on an annual basis in 2007, 2008, and 2009 and 2010 regarding the type of surgeries as what he performed on Tammy Green, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years from those health insurers.
3. The amounts Dr. Katzman has collected under letters of protection received from attorneys on an annual basis in 2007, 2008, 2009, and 2010 regarding the type of surgeries as what he performed on Tammy Green, stating the number of patients for whom he performed such a procedure in each year, and the amounts received during each of those years pursuant to those letters of protection.

Katzman and the P.A. filed objections to the subpoena duces tecum and a motion for protective order, arguing that the requests sought irrelevant information, and confidential, private business and financial records which exceeded the scope of permissible discovery under Florida Rule of Civil Procedure 1.280 as well as Elkins v. Syken, 672 So.2d 517 (Fla.1996). They also argued that the requests were extremely burdensome and would require thousands of man hours and thousands of dollars to accumulate the information requested. Finally, they acknowledged that the documents requested in paragraphs 2 and 3 quoted above were being ordered as a result of this court’s decision in Katzman v. Rediron Fabrication, Inc., 36 Fla. L. Weekly D1747 (Fla. 4th DCA Aug. 10, 2011) (opinion later withdrawn and superseded with substitute opinion), 76 So.3d 1060 (Fla. 4th DCA 2011), review dismissed, 88 So.3d 149 (Fla.2012). They argued that it should not be applied to this case.

In the original Rediron opinion, this court held that a discovery order compelling information from what it labeled a “hybrid witness,” relevant to show financial bias and the reasonableness of the costs and necessity of an allegedly controversial procedure he performed, was not overbroad or unduly burdensome. Katz-man and the P.A. pointed out in this case that Rediron was the subject of a motion for rehearing in this court. They argued that the decision as it stood afforded less protection to a treating doctor who is also designated an expert for testimony, hence a “hybrid” witness as designated by the court, than that afforded under rule 1.280 to an expert witness hired solely for providing opinions in a case. They also cited rule 1.280(b)(4)(A)(iii)4., which provides in part:

An expert may be required to produce financial and business records only under the most unusual or compelling circumstances and may not be compelled to compile or produce nonexistent documents.

Katzman filed an affidavit to support the motion for protective order in this case, alleging that the information sought in the subpoenas duces tecum was irrelevant and “extremely burdensome” for him to acquire. To comply, he or his office staff would have to open each and every file from 2007 through 2010 in all of the P.A.’s offices to determine if the patients received the same types of surgeries performed on Tammy Green. Files were kept alphabetically and not based on the types of procedures or surgeries performed. Then each file would have to be checked as to how much money was collected for each procedure. In many instances, phone calls would have to be made to one of the predecessor billing companies to determine how much money was actually collected for each procedure. A list would need to be complied to determine the number of surgeries performed for each year, and the same task would be required to determine how much money was collected under a LOP from attorneys. Katzman alleged that the requests would require hundreds if not thousands of hours of staff time to review all of the files and perhaps tens of thousands of dollars in labor costs. Katzman and/or the P.A. would have to hire people for this task specifically. Any attempt to comply with the requests would be extremely disruptive to the staff and care of patients.

The trial court in this case heard argument on the objections and motion for protective order, and entered its order denying the motion and requiring Katzman and the P.A. to respond to the subpoena duces tecum. The trial court found that Katzman “potentially has a stake in the outcome of the litigation” because he was treating Tammy Green under a LOP, which the court said “injects the physician himself into the litigation, even though the referral was not made by a lawyer.” Also, the court said that Katzman was a “hybrid” witness as referred to in the Rediron decision, as he was both an expert and a treating physician witness. Finally, the court concluded that the original Rediron decision controlled the outcome here.

After this discovery order issued, which petitioners timely challenged by cer-tiorari petition, this court issued its opinion on motion for clarification and certification in Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060 (Fla. 4th DCA 2011), review dismissed, 88 So.3d 149 (Fla.2012). The Florida Justice Association filed an amicus brief asking for clarification that the opinion is limited to its unique facts. We did not expressly say that we intended to do so, but we recognize here that each case raising these issues should be decided on its own facts and circumstances. This court denied rehearing and certification in Rediron, but granted clarification, withdrawing the previous opinion and replacing it with the new one.

In the new Rediron opinion, this court recited the material facts, including that the plaintiffs’ lawyer had referred the plaintiffs to Katzman for treatment of injuries after an auto accident with a vehicle owned by Rediron Fabrication, Inc. Katzman entered into a LOP agreeing to be paid for treatments from any recovery obtained in the lawsuit. Katzman was alleged to have performed a single controversial outpatient surgical procedure (per-cutaneous discectomy) within weeks of what the defendant said was a “minor auto accident.” One procedure took less than 45 minutes and Katzman billed $45,000. The procedure on the other plaintiff resulted in a $36,000 bill. Evidence was presented that the Center for Medicare and Medicaid Services had issued a national non-coverage determination finding no evidence that the procedure improved health or reduced pain. Defendant Rediron contended that a large portion of Katzman’s income was generated by recommending this particular surgical procedure to patients referred to him in litigation cases, and that he charged more for that single surgical procedure than he did in non-litigation cases.

Accordingly, Rediron sought discovery from Katzman and his P.A. as to how often he ordered discectomies over the last four years, and what he charged for them in litigation versus non-litigation cases. Katzman objected and moved for protective order. The trial court denied the motion for protective order, requiring Katzman to provide the amounts collected from health insurance coverage for four years regarding the same single surgical procedure he performed on the plaintiffs, stating the number of patients for whom he performed the procedure and the amount received during each of those years from health insurers. He was also compelled to produce information on the amounts he had collected under LOPs received from attorneys during the same four years, regarding the same surgery performed on the plaintiffs, stating the number of patients for whom he performed the procedure in each year and the amounts received during each of those years pursuant to LOPs.

This court ruled in the new Rediron opinion that when a lawyer refers a patient to a doctor in anticipation of litigation, the doctor “has injected himself into the litigation.” Id. at 1064. The doctor, as a treating doctor and expert witness, was said to have a stake in the outcome of the litigation “not because of the LOP [letter of protection] — because of the referral by the lawyer. The LOP merely gives the doctor the assurance that his/her bill will be paid directly from the proceeds of any settlement or verdict. It is the direct referral by the lawyer to the doctor that creates a circumstance that would allow the defendant to explore possible bias on the part of the doctor.” Id.

Next, the opinion acknowledged Katz-man’s argument that he was being compelled to compile and produce non-existent documents, which exceeds what Florida Rule of Civil Procedure 1.280(b)(4)(A), and Elkins, 672 So.2d 517 (addressing expert ■witness discovery), would allow. The opinion did not expressly resolve this particular issue though. Instead, it proceeded to determine that the discovery sought there was relevant to issues as to whether the expert recommended an allegedly unnecessary and costly surgical procedure with greater frequency in litigation cases, and whether he overcharged for the procedure in this case. This court concluded that the discovery on those issues was appropriate and met the provision in rule 1.280(b)(4)(A)(iii)4., that an expert witness “may be required to produce financial and business records only under the most unusual or compelling circumstances.”

The trial court did not have the benefit of this court’s revised opinion in Rediron when it entered the subject discovery order now on review. If it had, it would have noted that the classification of Katz-man as a “hybrid witness” was no longer part of this court’s rationale. Also, it would have seen that portion of this court’s decision stating that it was not the LOP which injects the doctor into the litigation, as the trial court ruled here. Instead, it was the referral of the patient by the lawyer to the doctor in anticipation of litigation. That did not occur here. Another doctor referred Tammy Green to Katzman.

Further, Katzman pointed out in a motion for rehearing from the trial court’s discovery order that he had sold his account receivable in this matter to a third party, prior to the date of his motion for protective order, such that he had no interest in the outcome of the case. While petitioners appear to have abandoned rehearing but are seeking certiorari in this court, this allegation should be considered by the trial court.

There are other material distinctions from Rediron which may lead the trial court to conclude that it is not controlling here. First, there were four surgical or medical procedures performed in this case on Tammy Green, contrasted with the single surgical procedure in Rediron. To the extent the trial court will need to consider on return of the case petitioners’ argument of undue burden on non-parties/petitioners, this will be an important factor. The order requiring information on four surgical or medical procedures is far more extensive and potentially burdensome than the “limited intrusion” found in Rediron. 76 So.3d at 1064.

On the related argument by petitioners that the order requires them to produce documents and information which do not exist, we may have been remiss in Rediron in failing to evaluate that claim in greater detail. Rule 1.280(b)(4)(A)(iii)4., expressly states that an expert witness may not be compelled to compile or produce non-existent documents. Case law recognizes the same. See Elkins, 672 So.2d at 521; Sanchez v. Nerys, 954 So.2d 630 (Fla. 3d DCA 2007); Price v. Hannahs, 954 So.2d 97 (Fla. 2d DCA 2007). The trial court should consider this issue on return of the case.

Also, part of the rationale in Rediron was that the discovery pertaining to this single surgical procedure was relevant because of the evidence presented in the trial court there that the procedure did not improve health or reduce pain, and that the Center for Medicare and Medicaid Services had issued a non-coverage determination on it. As well, it was argued to the trial court that a large portion of Katz-man’s income was derived from his performing this procedure on patients referred to him in litigation cases, and that he charged more for those cases than for the procedure in non-litigation cases. Nothing of that nature was presented in this case in connection with any of the four procedures performed by Katzman and/or the P.A. Thus, Rediron may not control and require production of the same information in this case.

As the Supreme Court of Florida recognized in Elkins:

Discovery was never'intended to be used as a tactical tool to harass an adversary in a manner that actually chills the availability of information by non-party witnesses; nor was it intended to make the discovery process so expensive that it could effectively deny access to information and witnesses or force parties to resolve their disputes unjustly. To allow discovery that is overly burdensome and that harasses, embarrasses, and annoys one’s adversary would lead to a lack of public confidence in the credibility of the civil court process. The right to a jury trial in the constitution means nothing if the public has no faith in the process and if the cost and expense are so great that access is basically denied to all but the few who can afford it. In essence, an overly burdensome, expensive discovery process will cause many qualified experts, including those who testify only on an occasional basis, to refrain from participating in the process, particularly if they have the perception that the process could invade their personal privacy.

672 So.2d at 522.

We denied relief in Rediron largely because there was only one surgical procedure involved there, with a record of evidence to show it was controversial and suggest that it may have been ordered more frequently and at a higher charge in litigation eases than non-litigation cases by the expert/treating witness. There was also the referral by the lawyer to the doctor in that case, but that was only one of the circumstances leading to the conclusion that the discovery sought should be allowed. As demonstrated here, there are many grounds to distinguish this case from Rediron with its own facts and circumstances. We are not ruling in this case that Ranjana is not entitled to any discovery from Katzman and the P.A. Rather, we return this case to the trial court for consideration of what range and scope of discovery is appropriate given petitioners’ challenges identified above. We believe the trial court should have the opportunity to do this against the backdrop of the clarified Rediron opinion and with this court’s decision in this case.

Petition Granted; Order Quashed; Cause returned to trial court for proceedings consistent with this opinion.

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

      . Review was dismissed following a stipulation for dismissal by the parties pursuant to Florida Rule of Appellate Procedure 9.350(a).

      . We acknowledge that there are several other petitions for writs of certiorari now pending in this court on the same or related issues, and they will be decided accordingly.

      . A motion for rehearing as to a non-final order is not authorized under the Florida Rules of Civil Procedure, but the trial court may nevertheless in its discretion entertain such a motion. Commercial Garden Mall v. Success Acad., Inc., 453 So.2d 934 (Fla. 4th DCA 1984). The trial court did not rule on this motion, though.


text:
    Willie L. HINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-664.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied July 13, 2012.
    Willie L. Hines, Montieello, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Wright v. State, 911 So.2d 81 (Fla.2005).

WARNER, GROSS and DAMOORGIAN, JJ., concur.


author: VILLANTI, Judge.

text:
    Jessica Patrice ANUCINSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3557.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sara Macks, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

After entering an open plea to charges of grand theft and dealing in stolen property, Jessica Anucinski appeals the trial court’s adjudication of guilt on both charges. We hold that the trial court erred in adjudicating Anucinski guilty of both grand theft and dealing in stolen property because section 812.025, Florida Statutes (2009), bars dual convictions arising from a single scheme or course of conduct. On the facts of this case, we reverse and remand with directions that the trial court vacate the lesser conviction and resentence Anucinski accordingly.

The facts in this case are simple. Anucinski entered an unbargained-for, open plea to the trial court on charges of third-degree grand theft and dealing in stolen property (a second-degree felony). The two charges arose from a single scheme or course of conduct: Anucinski stole a ring from the Tiffany & Co. store located at a mall, hiked to a pawn shop located on a nearby street, and pawned the ring the same day. See, e.g., Wilson v. State, 884 So.2d 74, 77 (Fla. 2d DCA 2004) (finding a single scheme or course of conduct where the defendant “was accused of stealing and selling the same property on the same day”).

Section 812.025 provides:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

(Emphasis added.) In Hall v. State, 826 So.2d 268 (Fla.2002), the supreme court held that section 812.025 prohibits dual convictions for dealing in stolen property and grand theft arising from a single scheme when a defendant pleads nolo con-tendere to both charges. The court explained that each statute addresses a different evil: the theft statute intends to punish a common thief who steals for personal use and for whom redistribution is incidental, while the dealing statute intends to punish “fences” who knowingly redistribute stolen property. Id. at 271. Hall explained:

The linchpin of section 812.025 is the defendant’s intended use of the stolen property. The legislative scheme allows this element to be developed at trial and it is upon this evidence that the trier of fact may find the defendant guilty of one or the other offense, but not both. The legislative scheme is clear and the same legislative rationale militates against allowing a defendant to plead guilty to inconsistent counts, i.e., stealing property with intent to use under section 812.014 or stealing property with intent to traffic in the stolen goods pursuant to section 812.019. Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea of nolo contendere to both counts. Legislative history leads us to believe that this comports with legislative intent. Thus, we find that section 812.025 prohibits a trial court from adjudicating a defendant guilty of both theft and dealing in stolen property in connection with one scheme or course of conduct pursuant to a plea of nolo contendere.

Id. (emphasis added).

Based on the language of the statute and the Hall decision, it is clear that the trial court could not adjudicate Anucinski guilty of both dealing in stolen property and grand theft arising from a single scheme. See, e.g., Pomaski v. State, 989 So.2d 721, 723 (Fla. 4th DCA 2008) (holding that trial court erred in accepting open plea to both grand theft and dealing in stolen property charges arising from a single scheme of stealing aluminum ramps and handrails and selling them to a scrap yard).

All that remains to be determined in this case is the remedy. Anucinski asked this court to remand for the trial court to make a factual determination as to whether she was a “common thief’ who should be convicted of grand theft or a “trafficker in stolen property” who should be convicted of dealing in stolen property, and to decide which conviction to vacate based on that determination. The State has interpreted Anucinski’s argument as a request to order the trial court to conduct an evidentiary hearing to make that determination and asks that we simply vacate the lesser conviction of grand theft.

Prior to the supreme court’s Hall decision, this court had consistently directed trial courts in cases arising out of one scheme or course of conduct to simply vacate the less serious of the two offenses, regardless of whether the case involved a plea or a trial. See, e.g., Bishop v. State, 718 So.2d 890 (Fla. 2d DCA 1998); Duncan v. State, 503 So.2d 443 (Fla. 2d DCA 1987); Repetti v. State, 456 So.2d 1299 (Fla. 2d DCA 1984); Rife v. State, 446 So.2d 1157 (Fla. 2d DCA 1984); Victory v. State, 422 So.2d 67 (Fla. 2d DCA 1982).

But the procedure on remand in this case is affected by the language in Hall. There, as here, the defendant had been charged with, and entered a plea to, third-degree grand theft and second-degree dealing in stolen property. See Hall, 826 So.2d at 269. But, unlike in prior cases, the supreme court did not simply remand with directions that the lesser conviction of grand theft be vacated. Rather, it “remand[ed] with directions that the conviction be reversed on either count III or count IV” without further direction. Id. at 272. In reversing the dual conviction, the supreme court explained: “Just as the trier of fact must make a choice if the defendant goes to trial, so too must the trial judge make a choice if the defendant enters a plea ... to both counts.” Id. at 271. Hall’s language suggests some level of discretion in deciding which conviction to vacate upon remand.

Yet despite Hall’s discretionary language, trial courts in post-Hall trial cases have been directed to simply vacate the lesser of the two convictions pursuant to section 812.025. See, e.g., Wilson v. State, 884 So.2d at 77; Blackmon v. State, 58 So.3d 343, 347 (Fla. 1st DCA 2011); see also Poole v. State, 67 So.3d 431 (Fla. 2d DCA 2011) (affirming where trial court dismissed charge of third-degree grand theft after the jury returned a guilty verdict on both grand theft and dealing in stolen property); Williams v. State, 66 So.3d 360 (Fla. 2d DCA 2011) (same); Simon v. State, 840 So.2d 1173 (Fla. 5th DCA 2003). As the State has pointed out, and as the above cases illustrate, when a jury convicts a defendant of both grand theft and dealing in stolen property, trial courts do not have to engage in any determination of which conviction to vacate— they are simply directed to vacate the lesser offense. See, e.g. Wilson, 884 So.2d at 77. Therefore, requiring trial courts to hold an evidentiary hearing in plea cases to determine which crime a defendant is “more guilty of’ seems illogical when no such analysis is required after a jury verdict.

But we are bound by Hall, so we must reconcile its language with the cases cited above. As we have noted in the past, while in many cases grand theft is a third-degree felony and dealing in stolen property is a second-degree felony, that is not always the case. See Williams, 66 So.3d at 363. In some cases grand theft can be a greater felony, depending upon the value of the stolen goods. Id. And dealing in stolen property is not always a second-degree felony. Id. Moreover, dual convictions for those crimes may be possible depending on the facts of a case. See Wilson, 884 So.2d at 77 (explaining that dual convictions are possible where “ ‘a clearly disjunctive interval of time or set of circumstances’ ” disrupts the flow of the defendant’s conduct) (quoting Rife v. State, 446 So.2d at 1158). For example, if Anu-cinski had stolen several rings and only pawned one of them, that factual circumstance could allow dual convictions. Or if there had been a very long delay between the two crimes and the pawn shop had been a long distance away from the jewelry store, it could be that the two counts could be considered to arise from two separate episodes. Presumably, the broad language in Hall was intended to allow courts to consider those types of factors when deciding which conviction to vacate or which charge to dismiss. But absent other elements, such as the ones described above, we expect that trial courts will simply continue to dismiss the lesser charge or vacate the lesser conviction.

In this case, however, Anucinski pleaded to both crimes so there is no question of fact for the trial court as to whether she committed the elements of both offenses. And the factual basis for the plea here sufficiently established that the two charges arose from a single scheme or course of conduct. See Wilson, 884 So.2d at 77. Therefore, there is no factual determination left to be made by the trial court. Thus, in an effort to foster judicial economy, see Simon, 840 So.2d at 1174, we remand with directions that the trial court vacate the grand theft conviction.

Reversed and remanded for further proceedings consistent with this opinion.

ALTENBERND and LaROSE, JJ„ Concur.

      . We note that this case is before us on the State’s motion for rehearing. Interestingly, in its original three-and-half-page appellate argument, the State did not concede that both offenses were part of a single scheme or course of conduct and, therefore, did not cite to any of the cases to which it cites on rehearing regarding a proper remedy to Anucinski’s situation. But on rehearing, the State has implicitly agreed that both convictions cannot stand and focuses on the remedy.


text:
    DEPARTMENT OF REVENUE on behalf of Lisa R. ROBERSON, Appellant, v. Jason A. CHANEY, Appellee.
    No. 1D11-5628.
    District Court of Appeal of Florida, First District.
    June 8, 2012.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

The Department of Revenue (Department) appeals a Final Administrative Paternity and Support Order rendered after a hearing before the Division of Administrative Hearings (DOAH), determining the obligation of the Appellee Jason Chaney (father) to pay child support for his minor child. The Department contends that the administrative law judge (ALJ) erred by using the income of the child’s caregiver, the child’s maternal grandmother — instead of the income of the mother — when calculating father’s child support obligation. This was error. We, therefore, reverse and remand for further proceedings consistent with this opinion.

Facts and Procedural History

Lisa Roberson, the caregiver and maternal grandmother of the minor child, applied to the Department’s child support enforcement division for an order to obtain child support from the biological father of the child. The grandmother did not seek child support from her daughter, the mother of the child. In support of the grandmother’s application for child support, the mother completed an affidavit listing Jason A. Chaney as the possible father. After being served by the Department, Chaney appeared for genetic testing. The test results established that there was a 99.92% probability that Chaney was the father of the child. Thereafter, the Department filed a Notice of Proceeding to Establish Administrative Support Order to require Chaney, as the non-custodial parent, to pay child support and/or provide health care coverage for the child. The Department provided Chaney with a Proposed Order of Paternity and Administrative Support, and Chaney requested an administrative hearing.

At the hearing, the mother testified that both she and her child resided with the mother’s parents. Although she works part-time, the mother testified that both she and the child are dependent upon her parents for support.

Chaney’s counsel stipulated that Chaney was the father. The father testified regarding his employment and income.

The maternal grandmother testified that the child has resided in her home since August 2005, with the agreement of the child’s parents. The grandmother does not have legal custody. The grandmother also testified regarding her employment and income.

Following the testimony of the parties, the ALJ inquired of counsel whose income — the mother’s income or the grandmother’s income — should be considered for the purposes of determining the father’s child support obligation. The father’s counsel asserted that the grandmother’s income should be used because the grandmother is the petitioner and the child resides with the grandmother. The Department asserted that only the income of the parents is relevant to the determination of child support, and that the grandmother was merely acting as a caregiver for the child.

The ALJ accepted the argument by the father’s counsel and considered the grandmother’s income in establishing its order determining the father’s child support obligation. In doing so, the ALJ erred. Analysis

The Department of Revenue has been designated by the Legislature as the state agency responsible for the administration of the child support enforcement program, Title IV-D of the Social Security Act, 42 U.S.C. ss. 651 et seq. § 409.2557(1), Fla. Stat. The Department is authorized to take actions necessary to ensure that children are supported from the resources of their parents to the extent possible, including the establishment of paternity or support obligations. § 409.2557(2), Fla. Stat. Child support orders may be obtained through an action in circuit court, or through an administrative procedure initiated by the Department. § 409.2563(2), Fla. Stat.; see also Dep’t of Revenue ex rel. Smith v. Selles, 47 So.3d 916, 918 (Fla. 1st DCA 2010). In cases where the Department seeks to establish a support order through the administrative procedure, the obligor parent may challenge the order by requesting a hearing before DOAH. § 409.2563(6), Fla. Stat.

Once the Department initiates the process to administratively establish paternity and child support obligations, the statute requires each parent to furnish a financial affidavit. § 409.2563(13)(a), Fla. Stat. In contrast, caregivers are not required to provide a financial affidavit. § 409.2563(13)(a), Fla. Stat. The statute requires that the Department use the parent’s affidavits, along with other information available to the Department, when calculating the child support obligation owed by the parent from whom support is sought under the section 61.30 child support guidelines. § 409.2563(5)(a), Fla. Stat. Thus, it is evident that the income of the parents — not the income of the caregiver — is to be used when calculating the child support guidelines under chapter 409. See D.F. v. Dep’t of Revenue ex rel. L.F., 736 So.2d 782, 784 (Fla. 2d DCA 1999) (concluding that even if the child still resided with the grandparents, the “child support guidelines were properly calculated without the grandparents’ joinder based upon the incomes of the two parents responsible for the support of the child).

This conclusion is further supported by the Legislature’s intent expressed in Chapter 409, providing that children should be supported by the resources of their parents:

It is declared to be the public policy of this state that this act be construed and administered to the end that children shall be maintained from the resources of their parents, thereby relieving, at least in part, the burden presently borne by the general citizenry through public assistance programs.

§ 409.2551, Fla. Stat. (emphasis added); see also § 409.2561(1), Fla. Stat. (referencing the “public necessity for ensuring that dependent children be maintained from the resources of their parents”). Further, chapter 409 contains multiple references to the parent’s — not caregiver’s — financial affidavits in connection with the establishment of a child support obligation. See, e.g., § 409.2563(4)(c), Fla. Stat.; § 409.2563(4)(g), Fla. Stat.; § 409.2563(5)(a), Fla. Stat.; § 409.2563(5)(b), Fla. Stat. Similar references to the parent’s — not caregiver’s— financial information is found within section 61.30, Florida Statutes, which sets forth the guidelines for the determination of child support. See § 61.30(2), Fla. Stat.; § 61.30(2)(b), Fla. Stat.; § 61.30(9), Fla. Stat.; § 61.30(10), Fla. Stat. Thus, the clear statutory directives demonstrate that it is income of the non-obligor parent that should be used when determining the child support obligation for the obligor parent, not the income of the caregiver.

Because the ALJ improperly considered the income of the caregiver grandmother when determining the child support obligation of the father, we reverse and remand for further proceedings consistent with the opinion.

REVERSED AND REMANDED.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


author: CRENSHAW, Judge.

text:
    David Charles SUTTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1762.
    District Court of Appeal of Florida, Second District.
    June 8, 2012.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   CRENSHAW, Judge.

David Charles Sutton appeals his judgment and sentences for three counts of capital sexual battery and one count of lewd or lascivious molestation. We conclude that there is no reversible error, and we affirm Sutton’s judgment and sentences. However, Sutton requests that this court address what he perceives to be an error on the face of the judgment. We write only to clarify a nonissue that may arise if Sutton decides to seek postconviction relief.

The State charged Sutton with ■ seven offenses, but only four of these offenses— counts one, two, four, and seven — were submitted to the jury for consideration. To avoid confusion, the State requested that count four, alleging capital sexual battery, and count seven, alleging lewd or lascivious molestation, be renumbered as counts three and four, and Sutton did not object to the renumbering. As a result, the judgment reflects that Sutton was convicted of the new counts three and four, which list the correct offenses from the old counts four and seven. Because there is no actual error with Sutton’s conviction, either statutorily or as to the offenses committed, Sutton was properly sentenced, and we find no basis on which to reverse or remand the judgment for correction. Cf. Harrell v. State, 76 So.3d 358 (Fla. 2d DCA 2011) (remanding for the trial court to enter a written judgment correctly reflecting Harrell’s convictions); Mann v. State, 62 So.3d 1240 (Fla. 2d DCA 2011) (remanding to correct a written judgment erroneously indicating that Mann was convicted of robbery with a firearm, rather than robbery with a weapon); Ellis v. State, 855 So.2d 101 (Fla. 2d DCA 2003) (remanding because the written judgment did not reflect the correct offense statute numbers).

Affirmed.

VILLANTI and LaROSE, JJ., Concur.


text:
    Rebecca ROSE, Appellant, v. GEICO and Broadspire, Appellees.
    No. 1D11-4843.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Rehearing Denied July 3, 2012.

      Mark G. Capron of the Law Office of Mark G. Capron, P.A., Lakeland, Richard W. Ervin, III, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Michael S. Waranch of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, claimant seeks review of an order denying the compensability of her claimed repetitive trauma injury and associated benefits. We agree that the Judge of Compensation Claims (JCC) imposed an improper burden of proof on her, and, for the reasons that follow, reverse the JCC’s denial of benefits.

The parties were previously before this court, at which time we affirmed the JCC’s finding that the statute of limitations had expired regarding claimant’s compensable bilateral carpal tunnel syndrome with a 1999 date of accident, and reversed the JCC’s finding that claimant sustained a new repetitive trauma injury in 2008. See Broadspire v. Rose, 24 So.3d 694, 695 (Fla. 1st DCA 2009). Thereafter, claimant filed a new petition for benefits alleging she sustained a new repetitive trauma to her hands, seeking a carpal tunnel release surgery, and assigning February 2010 as the date of the accident.

After considering Claimant’s testimony and that of each party’s independent medical examiner, the JCC denied the claim. The JCC found:

the testimony of the claimant’s IME physician, Dr. Fiore and that of the EC’s IME physician, Dr. Goldsmith are substantially similar. They both diagnose Rose as suffering from carpal tunnel syndrome. They both state that they cannot say that Rose’s symptoms now are any different from the symptoms she was suffering in 2007. Dr. Fiore noted that Rose had normal EMG studies done in 2002 and 2003 and an abnormal study in July 2007 when the surgery was recommended. He testified that without additional testing showing a worsening of symptoms there would be no objective findings that would support a change in condition since 2007. Rose has failed to offer any evidence of a change in condition. She has not carried her burden to prove a new accident or injury or an aggravation or exacerbation of a pre-existing condition.

By requiring claimant to offer evidence of a change in condition, even though she was alleging repetitive trauma, the JCC utilized an incorrect legal standard.

No change in condition need be shown, given claimant’s allegation of subsequent repetitive trauma, because every new exposure to the trauma was a new “accident” for purposes of workers’ compensation. Section 440.09(1), Florida Statutes (2009), requires that causation be established by clear and convincing evidence in cases of repetitive exposure. Nothing in these requirements places a burden on a claimant to prove that the condition has changed or somehow worsened. The proper legal standard is a showing, by clear and convincing evidence, that an “accident” occurred; that is, that “[t]he injury, [and] its occupational cause ... be established to a reasonable degree of medical certainty, based on objective relevant medical findings.” § 440.09(1), Fla. Stat. (2009).

This court addressed a similar issue in Troche v. GEICO, 966 So.2d 460 (Fla. 1st DCA 2007), which provides instruction here. In Troche, this court reversed the JCC’s denial of a claim for bilateral carpal tunnel syndrome. Id. at 461-62. In finding that Troche suffered a repetitive injury, the court noted that “[i]n a repetitive injury case, the date of injury is generally deemed to be the last date of exposure to the trauma.” Id. at 461. The Troche panel, in explaining why the JCC erred in relying on a previously filed, and voluntarily dismissed, petition for benefits alleging the same condition to find that the statute of limitations had expired, noted:

Here, Claimant’s filing of a previous workers’ compensation claim for the same injury did not change the fact that he continued to suffer a new repetitive trauma each time he performed his job duties of entering data into a computer. Significantly, his duties did not change after he filed, and then abandoned, his initial claim. In fact, the notice of injury should have provided sufficient notice to Employer that his duties were causing injury. Had Employer taken steps to change Claimant’s job functions and eliminated his exposure to the repetitive injury, the statute of limitations would have run from the time Claimant filed his original notice of injury, as that would have been the last date he was exposed to this particular injury.
That was not the case, however, and Claimant was allowed to continue his job duties and continued to suffer its harmful actions.

Id. at 461.

Just as in Troche, claimant’s job duties remained unchanged after, and despite, her prior petitions for benefits. Claimant testified unchallenged that her work activities throughout her employment with the employer involved a great deal of data entry, typing, and use of a mouse. Beginning in 2008 and continuing until July 2011, she was assigned to the reports and control department, entering federal tax identification numbers for entities paid by the employer. The physical demands of her job involved “a lot of data entry, basically non stop typing.” Each position she held required she meet a production quota. Dr. Fiore, in his deposition, described what he understood claimant’s work activities to entail: “working at GEICO full duty, typing a full shift, which is approximately 7.75 hours per day, divided into two shifts, interrupted by lunch.” Based on those work activities, combined with the results of his physical examination of claimant wherein he elicited objective positive signs of carpal tunnel syndrome bilaterally, and her abnormal 2007 EMG/ nerve conduction study report, his uncon-tradicted opinion was that claimant’s diagnosis of bilateral carpal tunnel syndrome was a recurrence of her condition ongoing since 1999 and that within a reasonable degree of medical probability the major contributing cause of her present recurrence of symptoms was her typing activity. Dr. Goldsmith’s testimony did not refute this opinion. He too diagnosed bilateral carpal tunnel syndrome. He also agreed that the symptoms caused by the condition can “worsen especially if she continues her repetitive work activities.”

Under an application of the proper standard, claimant proved a new repetitive trauma injury. That the doctors may not be able to “say that Rose’s symptoms now are any different from the symptoms she was suffering in 2007” is not disposi-tive of a claim based on repetitive trauma. Repetitive trauma can be proven by “de-monstratpng] a series of occurrences, the cumulative effect of which is injury.” Festa v. Teleflex, Inc., 382 So.2d 122, 124 (Fla. 1st DCA 1980). Here, claimant’s undisputed testimony was that she engaged in extensive typing on a daily basis for thirteen years. Dr. Fiore opined that the described typing was the major contributing cause of the condition he diagnosed— bilateral carpal tunnel syndrome. The JCC did not reject this evidence.

Accordingly, because claimant met her burden, as required by section 440.09(1), to prove that “[t]he injury, [and] its occupational cause ... be established to a reasonable degree of medical certainty, based on objective relevant medical findings,” the JCC erred in denying the claimed benefits. Because the JCC erred in denying the claim for authorization of treatment for claimant’s bilateral carpal tunnel syndrome, the JCC likewise erred in denying the claim for attorney’s fees and costs.

REVERSED and REMANDED for proceedings consistent with this opinion.

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


text:
    Alfred J. FERRIS and Louise Ferris, Appellants, v. FLAGLER’S LANDING CONDOMINIUM OWNERS’ ASSOCIATION, INC., Appellee.
    No. 3D11-1724.
    District Court of Appeal of Florida, Third District.
    June 13, 2012.
    Rehearing Denied July 20, 2012.
    Mitchell J. Cook, Summerland Key, for appellants.
    Baker and Hostetler, and Julie E. Singer and Michael S. Vitale, for appellee.
    Before SHEPHERD and CORTEÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Curci Vill. Condo. Ass’n v. Maria, 14 So.3d 1175 (Fla. 4th DCA 2009); Pelican Island Prop. Owners Ass’n v. Murphy, 554 So.2d 1179 (Fla. 2d DCA 1989).


author: GROSS, J.

text:
    K.P., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2117.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We reverse appellant’s conviction for disorderly conduct because the trial court’s incorrect evidentiary rulings prevented appellant from introducing extrinsic evidence of a prior inconsistent statement of the state’s only witness.

Appellant was convicted of disorderly conduct. The charge arose from fighting in public. The only state witness was the arresting officer. He testified that he saw the fight between appellant and another boy escalate from horseplay to punching each other in earnest; other children crowded around the two boys to watch the fight. The officer separated the two boys and arrested each for disorderly conduct.

In the defense case, appellant testified he did not throw any punches and insisted that he was acting in self defense. Appellant said the other child punched him in the back of the head; when he turned around the officer arrested him and the other child. Defense counsel then called appellant’s mother to impeach the arresting officer’s testimony. Based on a proffer, the mother would have testified that the officer told her that appellant had not been fighting. The trial court sustained the prosecutor’s hearsay objection. This ruling was incorrect; a prior inconsistent statement “is not hearsay, because it is not offered to prove its truth, only to show the inconsistency for impeachment purposes.” Marshall v. State, 68 So.3d 374, 375 (Fla. 5th DCA 2011); see also § 90.801(l)(c), Fla. Stat. (2010) (defining hearsay).

Defense counsel then recalled the arresting officer to question him about the prior inconsistent statement he had made to appellant’s mother. The attorney directed the officer’s attention to the time when appellant was released to the custody of his mother. When the attorney asked the officer if he told the mother “that there was no fight,” the court sustained the prosecutor’s objection to leading questions. The subject matter of the question was proper, since the attorney was trying to lay the foundation for introducing extrinsic evidence of a prior inconsistent statement by giving the officer “an opportunity to explain or deny the prior statement.” § 90.614(2), Fla. Stat. (2010). Without the ability to direct the officer’s attention to a specific statement, the defense attorney was able to elicit only the officer’s statement that he could not recall what he said to appellant’s mother at the time her son was released to her custody.

Having laid the foundation for introducing evidence of a prior inconsistent statement, defense counsel sought to recall appellant’s mother to testify about the officer’s prior statement. The trial court sustained the state’s objection that the witness had “already been called.”

Both sides rested, and the court found appellant guilty as charged.

The trial court’s erroneous eviden-tiary rulings frustrated appellant’s ability to offer proper impeachment testimony on a crucial issue in the case—whether the officer actually observed appellant “brawling or fighting.” Even though he was unable to ask the officer about the specific statement, appellant laid the proper foundation for admission of extrinsic evidence of the prior inconsistent statement when the officer testified he could not remember what he told appellant’s mother. See Rodriguez v. State, 65 So.3d 1133, 1135 (Fla. 4th DCA 2011) (“When a witness at trial does not remember the earlier ‘inconsistent’ statement, the witness does not ‘distinctly admit making’ the statement under section 90.614(2).” (citation omitted)). Once defense counsel had established entitlement to introduce the mother’s extrinsic evidence of the prior statement under section 90.614(2), the trial court abused its discretion in not allowing him to recall the mother. We cannot say beyond a reasonable doubt that such testimony did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1185 (Fla.1986).

The conviction for disorderly conduct is reversed and the case is remanded to the circuit court for a new disposition hearing.

POLEN and LEVINE, JJ., concur.

      . The disorderly conduct statute, section 877.03, Florida Statutes (2010), provides in pertinent part:
      Whoever ... engages in brawling or fighting, or engages in such conduct as to constitute a breach of the peace or disorderly conduct, shall be guilty of a misdemeanor of the second degree ...

      . This ruling was an abuse of discretion. "Ordinarily, leading questions should be permitted on cross-examination.” § 90.612(3), Fla. Stat. (2010). There was no reason why the defense attorney should not have been allowed to ask leading questions of the state’s only witness in a juvenile prosecution.


text:
    Wilson PIERRE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2247.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Eileen I. Landy of Michael B. Cohen, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We find no abuse of discretion in the trial judge’s lengthy written order revisiting an interlocutory ruling of a predecessor judge on a motion in limine determining the admissibility of an expert on eyewitness identification. See McMullen v. State, 714 So.2d 368 (Fla.1998). Although the judge should have provided notice to both sides that he was reconsidering the ruling, appellant did not object to the procedure utilized after the judge made the ruling. There was no fundamental error; the judge listened to an audiotape of the earlier hearing and considered the arguments made at that hearing. Although there was conflicting evidence regarding this shooting in a crowded shopping mall on Christmas Eve, competent, substantial evidence supports the conclusion that appellant was the shooter. We have fully considered appellant’s other arguments and find no errors, fundamental or otherwise.

Affirmed.

POLEN, GROSS and LEVINE, JJ., concur.


text:
    Tamarick CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1960.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Guzman v. State, 42 So.3d 941 (Fla. 4th DCA 2010).

POLEN, GROSS, JJ., BLOOM, BETH, Associate Judge, concur.


text:
    Travessa Eugene MERRICKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-477.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Travessa E. Merricks appeals an order summarily denying his motion for postcon-viction relief, filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. The trial court treated the motion as a motion for correction of illegal sentence pursuant to rule 3.800(a). We affirm without prejudice to his raising below an issue he raises for the first time in this appeal.

We agree with the state that the clarification of the sentencing judge’s probation and community control orders did not constitute an enhancement of his sentence without a violation, under the facts of this case. Compare Lippman v. State, 633 So.2d 1061 (Fla.1994), with Berchin v. State, 938 So.2d 659 (Fla. 4th DCA 2006). The trial court added electronic monitoring with an ankle bracelet during the period of time when Merricks would reside at home, until he could be admitted into a suitable group home of the sort which had been ordered by the original sentencing judge— terms to which he specifically agreed during the clarification hearing.

Merricks’s additional argument on appeal requiring him to pay the costs of his electronic monitoring is a hardship in light of his indigence is procedurally barred because it was not raised in the motion below. Hamilton v. State, 875 So.2d 586, 593 n. 4 (Fla.2004) (citing Thompson v. State, 759 So.2d 650, 668 n. 12 (Fla.2000)).

However, we note the transcript of the clarification hearing reflects that the trial court never orally pronounced that Merricks would be responsible for paying the costs of electronic monitoring. The trial court may not impose the obligation to pay costs of electronic monitoring without orally pronouncing it. Brooks v. State, 649 So.2d 329 (Fla. 5th DCA 1995) (vacating special condition requiring appellant to pay $1 per day for costs of electronic monitoring during period of his community control because condition was not orally pronounced at sentencing and because trial court failed to reference statutory authority for imposition of such costs). Further, the discrepancy between a written sentence and the oral pronouncement is cognizable in a rule 3.800(a) motion. Williams v. State, 957 So.2d 600 (Fla.2007) (holding that claim asserting discrepancy between oral pronouncement and written sentence is cognizable in rule 3.800(a) proceeding, as written sentence that conflicts with the oral pronouncement is an illegal sentence, since the oral pronouncement controls and is the legal sentence). Accordingly, the instant affirmance is without prejudice to Merricks’s filing another motion specifically challenging the part of the written clarification order that required him to pay the costs of his electronic monitoring.

Affirmed without prejudice.

WARNER, GERBER and LEVINE, JJ., concur.

      . Probation cannot be revoked for failure to pay the costs of electronic monitoring unless the violation is willful, which requires the state to present evidence that the defendant had the ability to make such payments. Baker v. State, 789 So.2d 410 (Fla. 4th DCA 2001).


text:
    Lawrence SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-665.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Lawrence Smith, Indiantown, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Ives v. State, 993 So.2d 117 (Fla. 4th DCA 2008).

POLEN, TAYLOR and GERBER, JJ., concur.


text:
    Demetrius CALHOUN, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-696.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Antony P. Ryan, Regional Counsel, Jennifer Workman Jesness, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS, JJ., and BLOOM, BETH, Associate Judge, concur.


text:
    Mario LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1019.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Mycki Ratzan of Mycki Ratzan, P.A., Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010).

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Valerie Annlisa SCHLOSSER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2279.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    Jermaine D. LOGAN, Petitioner, v. Howard C. FORMAN, as Clerk of the Broward County Circuit Court, Respondent.
    No. 4D11-3701.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Jermaine D. Logan, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for State of Florida.
    No brief filed on behalf of respondent.
   PER CURIAM.

We grant the petition for writ of mandamus in part and direct Howard C. Forman, the Broward County clerk of court, forthwith to advise both this court and the petitioner, Jermaine D. Logan, of the lower tribunal case number in which Logan’s transferred petition has been filed.

In May 2011, Logan filed with this court a petition for writ of mandamus in which he sought to compel the Broward County clerk of courts to provide copies of documents which the petitioner had requested from the clerk in March 2011, concerning the appointment of a particular Broward County assistant state attorney. The documents requested are ones that are required by section 27.181(1), Florida Statutes, to be recorded in the office of the clerk of the circuit court where the appointing state attorney resides. Despite that fact, and though Logan cited the statute and enclosed payment with his request, the clerk’s office did not provide the requested records; it merely responded that the information he requested “is not found [in] the file.”

Because the circuit court has concurrent jurisdiction to grant mandamus relief, see Fla. R.App. P. 9.030(c)(3), and has the power to review its clerk’s ministerial acts, see generally Clayton v. State, 849 So.2d 461 (Fla. 2d DCA 2003), this court transferred that petition to the circuit court for further proceedings under section 119.07, Florida Statutes. Logan v. Forman, No. 4D11-1713 (Fla. 4th DCA July 21, 2011) (unpublished order).

In October 2011, the petitioner filed another mandamus petition with this court, stating he had filed an inquiry with the circuit court requesting the new lower tribunal case number for the transferred petition, but the clerk had not responded. He asked this court to compel the circuit court to enforce the order and to rule on his claim under section 119.07 without further delay.

This court ordered the respondent clerk of court to show cause within twenty days why the petition should not be granted as prayed. The clerk failed to file a timely response.

Accordingly, we now grant the petitioner’s February 15, 2011 motion to hear and rule, and we grant the petition. We order the clerk forthwith to answer the petitioner’s inquiry and provide him (as well as this court) with the lower tribunal case number which the transferred petition has been assigned (or into which it has been filed, if it has been filed within an existing case number). At the same time, we are forwarding to the lower tribunal clerk’s office a copy of the transferred petition from this court’s file in case no. 4D11-1713, in the event the lower tribunal clerk’s office has misplaced the one we previously transferred to it.

Petition Granted.

DAMOORGIAN, CIKLIN and CONNER, JJ. concur.

      . Perhaps the clerk’s office searched for the requested public records in a court file pertaining to Logan, but there is no reason to believe they would be found there.

      . We note that Logan is currently incarcerated in connection with Broward circuit court case number 02007487CF10A, and the lower tribunal clerk's online docket reflects the filing of a petition for writ of mandamus within that file on October 5, 2011. At this point, we have no way to tell whether that petition is the one that this court transferred to the lower tribunal on July 21, 2011.


text:
    Louis Vincent MAXWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3516.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2012.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, GROSS, JJ„ and BLOOM, BETH, Associate Judge, concur.