author: TAYLOR, J.

text:
    Jacquelyn N. YOUNG, Appellant, v. BECKER & POLIAKOFF, P.A., Appellee.
    No. 4D09-4869.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Craig R. Zobel of Craig R. Zobel, P.A., Palm Beach Gardens, for appellant.
    Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

TAYLOR, J.

We grant appellee’s motion for rehearing, withdraw our previous opinion, and substitute the following in its place. No further motions for rehearing or clarification will be entertained.

This appeal stems from a suit against the law firm of Becker & Poliakoff for legal malpractice and breach of fiduciary duty. Jacquelyn Young appeals from the trial court’s order remitting the jury’s $4.5 million punitive damages award against Becker & Poliakoff to $2 million, or alternatively, granting a new trial on punitive damages. Becker & Poliakoff cross-appeals, contending that it was entitled to a directed verdict on legal malpractice and a new trial due to the trial court’s limitation on cross-examination of a crucial witness. We affirm as to all issues raised in both the appeal and the cross-appeal.

The underlying litigation arose from Young’s dissatisfaction with Becker & Po-liakoff s handling of her federal employment discrimination suit against BellSouth Telecommunications (BellSouth). The suit was filed on May 1, 2001 by Thomas Romeo, an associate with Becker & Poliakoff, on behalf of Young and twelve other Bell-South employees. At that time, Becker & Poliakoff was engaged in settlement negotiations on behalf of Young and several other plaintiffs in a separate action against BellSouth, styled Jackson v. BellSouth Telecommunications, 372 F.3d 1250 (11th Cir.2004). The Jackson case was brought against the law firm of Ruden, McClosky, Smith, Schuster & Russell, P.A. (Ruden McClosky) for alleged misconduct arising out of their settlement of a prior employment discrimination lawsuit against Bell-South, styled Adams v. BellSouth Telecommunications.

In the original Adams litigation, Ruden McClosky represented the plaintiffs and negotiated a settlement for them. In the later-filed Jackson case, the plaintiffs alleged that Ruden McClosky, while negotiating the settlement in Adams, made an improper side deal with BellSouth and entered into undisclosed agreements that were unlawful and unethical. Young was among the several plaintiffs in the Jackson case who hired Becker <& Poliakoff to represent them against BellSouth and Ruden McClosky.

Ultimately, Becker & Poliakoff settled the Jackson case in the summer of 2002 for $8 million. The firm received $2,927,540.00 for its fees and costs. Before the case was settled, however, and while settlement negotiations were underway, Attorney Thomas Romeo and Becker & Poliakoff were hired by Young and twelve other plaintiffs to file a separate federal lawsuit on their behalf against BellSouth for alleged continuing discrimination. Unbeknownst to Young, this new lawsuit was dismissed due to the statute of limitations. The conflict of interest posed by Becker & Poliakoffs representation of plaintiffs in this new lawsuit, while settling the Jackson case, underlay Young’s claims of legal malpractice and breach of fiduciary duty in the instant ease.

In her lawsuit against Becker & Polia-koff, Young alleged that the law firm intentionally delayed telling her about the dismissal of her case until after the Jackson case was settled. The jury determined that Becker & Poliakoff knew that the case had been dismissed, but withheld that information from Young so they could settle Jackson and secure the $2.9 million fee and cost reimbursement in that case. The jury returned a verdict for Young of $394,000 in compensatory damages as a result of Becker & Poliakoffs breach of fiduciary duty. The total compensatory damages consisted of $144,000 in past lost wages and $250,000 in damages for “pain and suffering, mental anguish, or loss of dignity.”

The jury also awarded $4.5 million in punitive damages against Becker & Polia-koff. However, the trial court remitted the punitive damages to $2 million, finding that the amount was not supported by evidence that Becker & Poliakoff had sufficient financial resources to support such a verdict without facing bankruptcy. Young rejected the remittitur/new trial order and filed this appeal.

“Under Florida law, a trial court’s determination of whether a damage award is excessive, requiring a remittitur or a new trial, is reviewed by an appellate court under an abuse of discretion standard.” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla.2006); see also City of Hollywood v. Hogan, 986 So.2d 634, 647 (Fla. 4th DCA 2008); Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 1002 (Fla. 4th DCA 2004). In ruling on a motion for remittitur, the trial court must evaluate the verdict in light of the evidence presented at trial. Hogan, 986 So.2d at 648. Section 768.74, Florida Statutes, provides criteria for evaluating awards of damages and mandates that courts subject awards of damages to close scrutiny and make certain that they be adequate and not excessive. Id.

In evaluating a punitive damages award, the trial court must also determine whether the award comports with constitutional due process requirements. “The three criteria a punitive damages award must satisfy under Florida law to pass constitutional muster are: (1) ‘the manifest weight of the evidence does not render the amount of punitive damages assessed out of all reasonable proportion to the malice, outrage, or wantonness of the tortious conduct;’ (2) the award ‘bears some relationship to the defendant’s ability to pay and does not result in economic castigation or bankruptcy to the defendant;’ and (3) a reasonable relationship exists between the compensatory and punitive amounts awarded.” R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060, 1072 (Fla. 1st DCA 2010) (citing Engle, 945 So.2d at 1263-64).

In this case, the trial court found that the $4.5 million punitive damages award overcame the presumption of exces-siveness under section 768.73, Florida Statutes. The court, however, concluded that the award did not satisfy the criteria for constitutionality. Although the court found that the first and third criteria mentioned above were met because the award was proportional to reprehensible conduct of the defendant and bore a reasonable relationship between the compensatory and punitive amount awarded, it found that the award fell short on the second criteria; it was excessive because it was “too much for Defendant to bear without economic castigation or bankruptcy.” As explained in the trial court’s thorough and detailed order, this finding is supported by the record.

After noting that the jury apparently discredited evidence presented by the defense regarding Becker & Poliakoffs financial picture, the trial court turned to testimony of Young’s financial expert, Dr. Pettingil, in determining that the $4.5 million punitive damages award would bankrupt Becker & Poliakoff. In short, the trial court found that Dr. Pettingil’s opinion placed the law firm’s net worth at $9.7 million to $11.1 million, and that “a $4.5 million punitive damages award constitutes forty percent of the net worth of the company.” This amount, the court reasoned, was “too large” and exceeded “the highest amount that can be sustained based upon the evidence.” Explaining how it arrived at the $2 million remittitur amount, the court stated the following:

The court finds that the maximum award that will not be excessive is $2 million which constitutes about 18%-20% of the firm’s net worth. Dr. Pettingil’s testimony establishes sufficient assets to bear this amount. His testimony established annual earnings of $675,000.00 per year increasing by 3% in 2010 and every year thereafter, $3 million per year in extraordinary compensation and a total of $1.5 million in retained earnings. Over 2009 and 2010 this would amount to assets exposable to collection of a punitive damage award of $6 million to $9 million, depending upon the extent of payment to officers’ extraordinary compensation.
$2 million is as close to disgorging what the jury determined to be ill-gotten gains as Defendant’s financial wealth will tolerate.

Contrary to Young’s contention, the trial court did not improperly substitute its judgment for that of the jury, but instead properly exercised its discretion in reviewing the award upon the financial information in evidence. See Arab Termite & Pest Control of Fla. v. Jenkins, 409 So.2d 1039, 1043 (Fla.1982) (“Since the defendant’s financial position is proper for the jury to consider in imposing punitive damages, it must be considered along with the malice of the defendant’s conduct in ruling on the question whether the jury’s assessment is excessive in light of the manifest weight of the evidence.”) (citation omitted). While a punitive damages award should be painful enough to provide some retribution and deterrence, it should not financially destroy a defendant. See Lipsig v. Ramlawi, 760 So.2d 170, 188 (Fla. 3d DCA 2000) (remanding for trial court to remit the punitive damage award to reflect a reasonable relationship to the defendant’s net worth). We, therefore, do not disturb the amount of the punitive damages ordered by remittitur; reasonable people could differ over this matter, and, therefore, no clear abuse of discretion is shown. See S & S Toyota, Inc., v. Kirby, 649 So.2d 916, 921 (Fla. 5th DCA 1995) (applying abuse of discretion standard in upholding remittitur of punitive damages award).

We further find any error in the trial court’s ruling that prohibited Dr. Pet-tingil from testifying that an award of $10 million would not bankrupt Becker & Po-liakoff to be harmless. Here, the witness was allowed to state his opinion concerning valuation of the firm’s net worth and its financial ability to pay an award. And, even without hearing the witness’s opinion as to whether an award of $10 million would bankrupt the firm, the jury still awarded $4.5 million in punitive damages-an amount the trial court found to be excessive in relation to the firm’s net worth.

We reject Becker & Poliakoffs argument that the punitive damages award should have been set aside or remitted further. In connection with this argument, Becker & Poliakoff argues that the only “loss” cognizable in this case would have been loss of wages and that mental anguish damages were precluded by the impact rule. Assuming, without deciding, that the damages for mental anguish were not properly awardable as compensatory damages in this case, it is clear that the jury awarded at least some compensatory damages for breach of fiduciary duty. Thus, we need not consider whether punitive damages could have been awarded in this case in the absence of actual damages.

Turning to the issue of whether the $2 million punitive damage award was excessive, our review is de novo. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1263 (Fla.2006). We will assume, without deciding, that the compensable damages on which the punitive damages award could have been based were the $144,000 in lost wages.

The imposition of a punitive damage award is subject to constitutional limitations because “[t]he Due Process Clause of the Fourteenth Amendment prohibits a state from imposing a ‘grossly excessive’ punishment on a tortfeasor.” BMW of N. Am., Inc. v. Gore, 517 U.S. 559, 562, 116 S.Ct. 1589, 134 L.Ed.2d 809 (1996). “[T]he relevant constitutional line is ‘inherently imprecise.’ ” Cooper Indus., Inc. v. Leatherman Tool Group, 532 U.S. 424, 433-34, 121 S.Ct. 1678, 149 L.Ed.2d 674 (2001). The United States Supreme Court has, however, identified three guideposts for assessing the reasonableness of punitive damages: (1) the degree of reprehensibility of the defendant’s misconduct; (2) the disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases. State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 123 S.Ct. 1513, 155 L.Ed.2d 585 (2003); Gore, 517 U.S. at 575, 116 S.Ct. 1589.

“[T]he most important indici-um of the reasonableness of a punitive damages award is the degree of reprehensibility of the defendant’s conduct.” Gore, 517 U.S. at 575, 116 S.Ct. 1589. Courts must determine the reprehensibility of a defendant by considering whether: “the harm caused was physical as opposed to economic; the tortious conduct evinced an indifference to or a reckless disregard of the health or safety of others; the target of the conduct had financial vulnerability; the conduct involved repeated actions or was an isolated incident; and the harm was the result of intentional malice, trickery, or deceit, or mere accident.” State Farm, 538 U.S. at 419, 123 S.Ct. 1513. Although “few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process,” the Supreme Court has declined to impose a bright-line ratio which a punitive damages award could not exceed. Id. at 425, 123 S.Ct. 1513. The Court further observed that “an award of more than four times the amount of compensatory damages might be close to the line of constitutional impropriety.” Id.

This court in Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710 (Fla. 4th DCA 2010), held that punitive damages of $5 million — which represented only 5% of the defendant’s net worth — were neither arbitrary nor excessive in an action for slander per se, despite the fact that the jury awarded no compensation beyond presumed nominal damages, where the jury found that the defendant’s defamation was intentional and malicious. Relying on TXO Production Corp. v. Alliance Resources Corp., 509 U.S. 443, 113 S.Ct. 2711, 125 L.Ed.2d 366 (1993), which upheld a $10 million punitive damage award on a $19,000 compensatory damage award against a company worth over $2 billion, this court reasoned that “extraordinary wrongdoing justifies extraordinary civil punishment without limiting ratios.” Lawnwood, 43 So.3d at 732.

In this ease, we cannot conclude that the $2 million punitive damages award was excessive. The amount of punitive damages assessed was in reasonable proportion to the malice, outrage, or wantonness of the tortious conduct. There is one highly relevant circumstance that could be taken into account in determining that the punitive damage award was not excessive — namely, the $2.9 million profit that Becker & Poliakoff made when it abandoned Young as a client to ensure that it could settle the Jackson case. Moreover, the trial court correctly concluded that Becker & Poliakoff had the ability to pay a $2 million punitive damages award. Finally, we decline to apply a rigid mathematical ratio in analyzing the propriety of the $2 million punitive damages award. To be sure, the ratio between the punitive damages and the actual damages was well over 4:1. But extraordinary wrongdoing occurs when a law firm intentionally abandons a client and thwarts her ability to recover for a violation of her civil rights so that the firm can reap financial gain in another case. The punitive damages in this case were properly assessed to further the State’s legitimate interests in punishing reprehensible conduct and deterring its repetition. See Gore, 517 U.S. at 568, 116 S.Ct. 1589 (“Punitive damages may properly be imposed to further a State’s legitimate interests in punishing unlawful conduct and deterring its repetition.”).

On cross-appeal, Becker & Poliakoff raises two issues: (1) that the trial court erred in denying its motion for directed verdict, and (2) that the trial court reversibly erred in limiting cross-examination of a crucial witness for the plaintiff.

I. Denial of Directed Verdict

Becker & Poliakoff contends that it was entitled to a directed verdict on Young’s legal malpractice complaint because the evidence failed to establish that any loss suffered by Young was attributable to legal malpractice or a breach of fiduciary duty. Rather, the firm argues, Young voluntarily abandoned or waived her employment discrimination claims.

A. Background

On May 1, 2001, Thomas Romeo (Romeo), an associate with Becker & Polia-koff, filed a complaint in federal court on behalf of Young and twelve other Bell-South employees. The complaint alleged race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”), the Civil Rights Act of 1866, 42 U.S.C. § 1981, and the Florida Civil Rights Act (“FCRA”), Florida Statute § 760.10, et seq. The complaint also alleged negligent retention and supervision under Florida law.

Before the complaint was filed, Young had filed her charge of discrimination against BellSouth with the Equal Employment Opportunity Commission (EEOC) on June 28, 2000. EEOC sent Young a “Dismissal and Notice of Rights” letter (“right-to-sue letter”) on January 31, 2001, which advised her that “based upon its investigation, the EEOC [was] unable to conclude that the information obtained establishes violations of the statutes.” The letter notified Young that if she decided to file a private suit against BellSouth, she had ninety (90) days from receipt of the notice to file the suit. Otherwise, her right to sue based on the above charges would be lost. Young thus had ninety days, or until May 1, 2001, to file a civil suit based upon her June 28, 2000 charge of discrimination against BellSouth.

As evidence that all conditions precedent to filing suit were satisfied, Romeo referenced and attached the EEOC right-to-sue letter to the federal complaint; however, it was the wrong letter. Romeo attached Young’s 1998 EEOC right-to-sue letter regarding an earlier discrimination charge rather than the January 31, 2001 right-to-sue letter. In response to the May 2001 complaint, BellSouth filed a motion to dismiss. On September 26, 2001, the federal district court dismissed the Title VII and the FCRA claims with prejudice, finding them both time-barred. The court found the Title VII claim time-barred due to the plaintiffs’ failure to file suit within ninety days after receiving the right-to-sue letter from EEOC; it found that the FCRA claim was time-barred based on the applicable four-year statute of limitations. The court dismissed without prejudice the remaining claims.

Becker & Poliakoff not only failed to file a response to BellSouth’s motion to dismiss the May 2001 complaint, but also failed to move to set aside the dismissal and re-file the complaint with the correct January 31, 2001 right-to-sue letter; it also failed to appeal dismissal of the claims. The firm then waited until October 4, 2002, thirteen months after the dismissal of Young’s complaint, to notify Young that her case had been dismissed. By letter, the firm advised Young that it was withdrawing from representation on the case and that she should “seek the advice of an attorney expeditiously as one or more additional statutes of limitation may run if you fail to file your claim prior to the running of the statutes of limitation.”

Young encountered considerable difficulty finding another lawyer willing to represent her. She testified, “no one would touch it,” and that “[e]verybody that I went to and showed the information, showed them all the documents, they would not take it.” Although she eventually found a lawyer who was willing to take her case and who actually filed a suit on her behalf in 2003, the lawyer later advised her against pursuing the action in light of the dismissal of her Title VII claim and subsequent rulings by the federal district court that the new action was substantively identical to that case and subject to dismissal upon BellSouth’s affirmative defenses of res judicata, collateral estoppel, and laches.

Young subsequently voluntarily dismissed the 2003 lawsuit with prejudice on November 24, 2004, and brought a malpractice suit against Becker & Poliakoff for its handling of her 2001 employment discrimination suit against BellSouth.

B. Analysis

Becker & Poliakoff argues that the trial court abused its discretion by not granting its motion for directed verdict because the evidence did not establish that Becker & Poliakoff caused Young to lose the ability to proceed with her discrimination claims against BellSouth. The firm maintains that Young unilaterally, intentionally and voluntarily abandoned her discrimination suit against BellSouth, despite the viability of her claims, thereby precluding any action against Becker & Poliakoff for legal malpractice. Specifically, Becker & Polia-koff argues that Young’s FCRA, § 1981, and state negligence claims could have been pursued even after her Title VII and FCRA claims were dismissed.

“The standard of review on appeal of the trial court’s ruling on a motion for directed verdict is de novo.” Martin Cnty. v. Polivka Paving, Inc., 44 So.3d 126, 131 (Fla. 4th DCA 2010) (quoting Fina v. Hennarichs, 19 So.3d 1081, 1084 (Fla. 4th DCA 2009)). Further, “[w]hen an appellate court reviews the trial court’s denial of a motion for directed verdict, it must ‘view the evidence and all inferences in a light most favorable to the non-mov-ant, and should reverse if no proper view of the evidence could sustain a verdict in favor of the non-movant.’ ” Conrad v. Young, 10 So.3d 1154, 1157-58 (Fla. 4th DCA 2009) (quoting Weinstein Design Group, Inc. v. Fielder, 884 So.2d 990, 997 (Fla. 4th DCA 2004)).

Becker & Poliakoff relies on Chipman v. Chonin, 597 So.2d 363, 364 (Fla. 3d DCA 1992), for the general principle that “[a] party cannot recover damages for legal malpractice unless it is shown that the lawyer neglected a reasonable duty which was the proximate cause of the client’s loss.” The law firm argues that Young did not establish that she was prevented from proceeding on her employment discrimination claims by its actions and thus failed to establish damages proximately caused by its alleged negligence. We disagree.

“The circumstances in which a client’s subsequent actions constitute an abandonment of a legal malpractice claim, as a matter of law, are very narrow.” Lenahan v. Russell L. Forkey, P.A., 702 So.2d 610, 611 (Fla. 4th DCA 1997). In Lenahan, we held that a client’s dismissal of an underlying lawsuit in Virginia did not entitle an attorney to summary judgment in a malpractice suit in Florida where there were genuine issues of material fact as to whether the attorney’s representation of the client precluded the client from prevailing in the Virginia lawsuit.

Taking the evidence in the light most favorable to Young, we find that the circumstances of this case demonstrate that Young did not abandon her legal malpractice claim. The federal district court dismissed both the Title VII and FCRA claims with prejudice. Those claims were dual-filed with the EEOC and the Florida Commission on Human Relations (“FCHR”) and traveled together. See Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 893 (Fla.2002) (explaining that pursuant to the EEOC/ FCHR workshare agreement, each agency designates the other as its agent for purposes of receiving, investigating, and filing charges, and a claimant’s filing with the EEOC automatically operates as a dual-filing with the FCHR). The evidence showed that the district court’s dismissal of these claims was due to Becker & Polia-koffs mistake in failing to attach the January 31, 2001 right-to-sue letter to the complaint it filed on May 1, 2001. The firm did not seek leave to amend the complaint, appeal the dismissal, or take other corrective action. Thus, Young’s opportunity to bring a successful Title VII or FCRA claim was permanently and irreparably lost by the law firm’s actions and inaction. Further, the firm’s failure to take any prompt action following the dismissal without prejudice of Young’s § 1981 and state negligence claims subjected these claims to affirmative defenses, such as laches.

Young introduced sufficient evidence to demonstrate that her voluntary dismissal of the later-filed 2003 suit did not constitute an abandonment or waiver of her claims and did not cause her loss. Rather, her employment discrimination claims, all of which arose out of the same operative facts as those alleged in her 2001 complaint, were severely damaged, if not destroyed, by defenses available to, and actually raised by, BellSouth. These included affirmative defenses of res judicata, collateral estoppel, laches, and the rule against splitting causes of action. Indeed, Young testified that she could not find a lawyer to maintain her employment discrimination claims because their legal viability and economic value had been lost or substantially diminished by the federal district court’s dismissal of her claims in 2001. Under these facts and circumstances, and viewing the evidence and all inferences in a light most favorable to Young, we cannot find that Young abandoned or waived her claims or that Becker & Poliakoffs mishandling of her case could have been corrected by pursuit of the second suit. Accordingly, we conclude that the trial court properly denied the motion for directed verdict.

II. Impeachment Evidence of Thomas Romeo’s Disbarment

Becker & Poliakoff next argues on cross-appeal that the trial court erred in not allowing it to impeach Thomas Romeo during cross-examination with evidence of his disbarment from law practice. We disagree and affirm on this point. Evidence that Romeo was disbarred was properly excluded by the trial judge due to its lack of relevance and unfairly prejudicial effect.

A. Background

As discussed above, Thomas Romeo was the Becker & Poliakoff associate who filed Young’s 2001 lawsuit against Bell-South. He testified about the facts and circumstances surrounding his handling of the Young v. BellSouth case while employed with Becker & Poliakoff. After first answering some general background questions about his education and legal experience, Romeo told the jury about the actions he took on Young’s behalf, both before and immediately after he filed the lawsuit; he explained the procedures for filing a charge of discrimination with the EEOC, issues relating to class action suits, and methods for checking client conflicts when opening a case. Romeo also described the claims he filed in the May 2001 complaint and explained the statutory basis for filing the specific federal and state race discrimination claims. He said that after evaluating Young’s charge of discrimination, he thought her claims “were well substantiated and viable claims that would result in damages being awarded.” In addition, Romeo testified about his discussion with other attorneys at Becker & Poliakoff concerning Young’s case and his understanding back in 2001-2002 of certain documents and e-mails pertaining to potential conflicts with her case.

Before defense counsel for Becker & Poliakoff began his cross-examination of Romeo, he sought permission of the trial court to introduce evidence that Romeo was disbarred in 2003, as well as details of the basis for the disbarment. He argued that, because Romeo was a key witness at trial, his credibility was “squarely at issue.” Therefore, he should be allowed to impeach Romeo’s credibility with evidence of his disbarment.

In ruling that evidence of Romeo’s disbarment was not admissible, the trial court relied on Tormey v. Trout, 748 So.2d 303, 306 (Fla. 4th DCA 1999). Tormey is precisely on point. There, we held that cross-examination of the defendant’s medical expert regarding administrative discipline was an improper attack on his credibility. Although we found the error harmless in Tormey, we reiterated the well-established rule that evidence of particular acts of misconduct may not be introduced to impeach the credibility of a witness.

Becker & Poliakoff argues on appeal that Young’s counsel “opened the door” to the disbarment evidence when, while eliciting background information on direct examination, he asked Romeo whether he was currently practicing law. To this question, Romeo merely responded “No.” Becker & Poliakoff contends that Romeo’s statement that he was not currently practicing law was misleading, and that the disbarment evidence was necessary to clarify his status and explain why he was no longer practicing law. Becker & Polia-koff complains that Romeo testified extensively about office procedures, legal matters, and e-mails and conversations with attorneys pertinent to the breach of fiduciary duty claim — all “in the guise of being a lawyer.” The jury, it argues, was entitled to know that he was no longer a lawyer — not by choice — but because he had lost his license.

B. Analysis

The standard of review for a trial court’s ruling on objections to testimony is abuse of discretion. See Petit-Dos v. Sch. Bd. of Broward Cnty., 2 So.3d 1022, 1025 (Fla. 4th DCA 2009). This standard applies to a trial court’s decision to exclude evidence attacking the credibility of a witness. See Childers v. State, 936 So.2d 585, 592 (Fla. 1st DCA 2006). Only when it appears that evidentiary errors injuriously affected the substantial rights of the complaining party will a judgment be reversed. Forester v. Norman Roger Jewell & Brooks Int’l, Inc., 610 So.2d 1369, 1372 (Fla. 1st DCA 1992). Appellant has the duty to demonstrate not only error in evidentiary rulings, but prejudice from such rulings as well. Id. at 1373.

We fail to see how Romeo’s testimony that he was not currently practicing law opened the door to evidence of his disbarment. His testimony was not misleading to the jury; he never represented to the jury, expressly or impliedly, that he was a lawyer in good standing, and he did not testify about legal issues as an expert witness. Romeo testified merely as a fact witness concerning his recollection of events surrounding the Young v. BellSouth case. He referred to areas of discrimination law and procedures only to explain why he filed certain claims and took particular actions during the relevant time period. The fact that he was disbarred at a later date for unrelated reasons was irrelevant and unfairly prejudicial. The trial court ruled appropriately and did not abuse its discretion in disallowing this evidence.

In sum, on the main appeal, we affirm the trial court’s order for remittitur or new trial based on the “economic castigation or bankruptcy” ground relied on by the trial court. As to the cross-appeal, we find no error in the trial court’s denial of Becker & Poliakoff’s motion for directed verdict and its ruling on the proffered impeachment evidence. Accordingly, we affirm the final judgment.

WARNER and DAMOORGIAN, JJ., concur.

      . We grant rehearing to address on the merits certain arguments presented in appellee's Answer Brief and Initial Brief on Cross-Appeal which were not designated as issues on cross-appeal.

      . As summarized in Jackson, "First, the plaintiffs’ lawyers agreed not to sue BellSouth on any employment discrimination claim for a period of one year. Second, BellSouth and Ruden McClosky entered into a four-year 'consulting agreement’ by which $120,000 of the settlement fund was paid directly to Ru-den McClosky. The plaintiffs say that this agreement was negotiated to create a conflict of interest that would prevent Ruden McClo-sky from representing any future plaintiffs against BellSouth, effectively buying the loyalty of the plaintiffs' attorneys from the plaintiffs.” 372 F.3d at 1259-60 (footnotes omitted).

      . However, Becker & Poliakoff does not actually request that the compensatory award for emotional distress damages be overturned— only that such damages could not form the basis for the punitive damages award in this case.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    A.J., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5162.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

A.J., a juvenile, appeals a restitution order requiring him to repay $3222.60 to the victim. As we did in D.W. v. State, 77 So.3d 804 (Fla. 2d DCA 2011), we reverse the restitution order due to procedural irregularities.

A delinquency petition was filed in February 2010 alleging that A.J. committed burglary of a dwelling or structure with damage in excess of $1000 and grand theft of property worth more than $100. A.J. entered a no contest plea to the lesser-included offense of second-degree felony burglary and agreed to pay restitution. In return, the State nolle prossed the grand theft charge. A.J. was placed on probation with restitution to be determined at a later date.

Several months later, a restitution hearing was conducted before a magistrate. The magistrate issued his report on September 28, 2010, and it was filed the next day, September 29, 2010. The report informed A.J. that he would have ten days in which to file exceptions to the report “in accordance with the Florida Rules of Juvenile Procedure 8.257(f).” Nevertheless, that same day, September 29, 2010, the juvenile court signed and filed its order directing restitution. The order does not refer to the magistrate’s report, does not contain any factual findings, and merely directs how and when payment of the restitution should be made.

As we noted in D.W., there appears to be no “authority that allowed the juvenile court to delegate its judicial determination of the amount of restitution to a magistrate ... and th[at] determination is generally deemed to be nondelegable.” Id. at 805; see also Perry v. State, 513 So.2d 254, 255 (Fla. 2d DCA 1987) (“The function of determining the amount of restitution and requiring its payment rests solely with the trial court.”). We also note — as we did in D.W. — that we are troubled by the fact that the juvenile court immediately signed. and filed the restitution order without allowing the ten-day exception period to run. See D.W., 77 So.3d at 805.

As a separate ground for reversal, A.J. contends that the State failed to prove that the victim’s loss was causally connected to the burglary and, therefore, that the restitution order cannot stand. We note that this issue was briefly addressed at the restitution hearing and that the magistrate appeared to orally reject it; however, the magistrate’s report did not contain findings on this issue. And because the juvenile court improperly delegated its authority and failed to include any findings in its order, on remand, the juvenile court must address this issue.

Reversed and remanded for a restitution hearing in the juvenile court.

SILBERMAN, C.J., and WHATLEY, J., Concur.


author: WALLACE, Judge.

text:
    Michael McCALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5597.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Michael McCall, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Michael McCall appeals the 2009 revocation of his probation for burglary of a dwelling and his resulting sentence of thirty years in prison as a habitual felony offender. Mr. McCall’s appellate counsel initially filed an Anders brief, asserting that no issue of arguable merit could be found to support significant reversible error in this case. However, our review of the record and of the applicable law reflected an issue of arguable merit in the failure of the trial court to order that Mr. McCall receive credit for the time that he served in prison on the incarcerative portion of his split sentence. See § 921.0017, Fla. Stat. (1995); Downing v. State, 779 So .2d 562, 563 (Fla. 2d DCA 2001); Saavedra v. State, 59 So.3d 191, 192 (Fla. 3d DCA 2011); Smith v. State, 921 So.2d 794, 796 (Fla. 5th DCA 2006). Accordingly, we directed the parties to file supplemental briefs addressing the issue of Mr. McCall’s right to credit for the time that he served in prison before the probationary portion of his sentence began. After reviewing the parties’ supplemental briefs, we affirm.

In its oral pronouncement of sentence, the trial court directed that Mr. McCall was to receive “[cjredit for all time served including today’s date.” The written sentence grants credit for time served of 1108 days, which is about three years. But at the time Mr. McCall was sentenced for the violation of his probation in 2009, he had already served over eight years in prison before being released to probation. Mr. McCall did not receive credit for this prison time. Although a trial court may delegate to the Department of Corrections the task of calculating the amount of prison credit that is due, the trial court must order that such credit be provided. Smith, 921 So.2d at 796. Here, the trial court failed to order that such credit be provided in the written sentence.

Nevertheless, Mr. McCall did not object or file a motion to correct this sentencing error in accordance with Florida Rule of Criminal Procedure 3.800(b). Thus he failed to preserve the issue for appellate review. Ingraham v. State, 82 So.3d 1101 (Fla. 2d DCA 2012); Woodard v. State, 6 So.3d 726, 727 (Fla. 2d DCA 2009). Accordingly, our affirmance is without prejudice to any right Mr. McCall may have to file a motion to correct his sentence under rule 3.800(a).

We have considered all of the other issues raised in the initial Anders brief and in Mr. McCall’s pro se brief, and we find them to be without merit.

Affirmed.

KELLY and KHOUZAM, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: NORTHCUTT, Judge.

text:
    Richard A. PAYNE, Appellant, v. Erin L. PAYNE, Appellee.
    No. 2D10-5715.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.

      Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellant.
    Mark H. Smith and Brian W. Haas of Smith & Haas Law Group, P.A., Lake Wales, for Appellee.
   NORTHCUTT, Judge.

Richard Payne appeals the final judgment dissolving his seventeen-year marriage to Erin Payne. We affirm the denial of Mr. Payne’s request for permanent alimony, but we reverse the denial of attorney’s fees.

Mr. Payne argues that the trial court abused its discretion in failing to award him permanent alimony based on the disparity in the parties’ incomes. We acknowledge the presumption in favor of awarding alimony after a long-term marriage. See § 61.08(4), Fla. Stat. (2010) (classifying as long-term a marriage of seventeen years or more and codifying a rebuttable presumption in favor of alimony). But the starting point for every alimony determination is need and ability to pay. See § 61.08(2) (“In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.”); see also Austin v. Austin, 12 So.3d 314, 317 (Fla. 2d DCA 2009).

Here, the trial court found that Mr. Payne failed to show a need for alimony over and above his own earning capacity. Mr. Payne takes issue with the court’s factual findings regarding his earning capacity, but the findings were supported by competent, substantial evidence. See Schlagel v. Schlagel, 973 So.2d 672, 675 (Fla. 2d DCA 2008). A trial court in a divorce proceeding is not required to equalize the financial positions of the parties. Canakaris v. Canakaris, 382 So.2d 1197, 1204 (Fla.1980). In this close case, we cannot say that the court abused its discretion. See Lewis v. Lewis, 485 So.2d 855, 855 (Fla. 2d DCA 1986) (“[W]e recognize that this is a close case. It is for that very reason that we decline to find the trial judge abused his discretion....”). We therefore affirm the denial of alimony.

It is clear, however, that Mr. Payne is in need of a contribution toward his attorney’s fees. See Nelson v. Nelson, 588 So.2d 1049 (Fla. 2d DCA 1991) (finding abuse of discretion in failing to award attorney’s fees in light of disparity between parties’ present incomes and lack of ready assets in equitable distribution). We reverse and remand with directions to award attorney’s fees to Mr. Payne in an amount to be determined by the trial court.

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

WHATLEY and WALLACE, JJ., Concur.


author: LaROSE, Judge.

text:
    CRAWFORD RESIDENCES, LLC, a Florida limited liability company; Eduardo Goudie, individually; and Carondelet, LLC, a Florida limited liability company, Appellants, v. BANCO POPULAR NORTH AMERICA, a New York banking corporation; Guillermo Cedeño, individually; Xiomarra Cedeño, individually; Manuel Botero, individually; Showalter Landscaping and Irrigation, LLC, a Florida corporation; Kone, Inc., an Illinois corporation; Forge Engineering, Inc., a Florida corporation; Ferguson Enterprises, a Virginia corporation; Garage Doors of Naples, Inc., a Florida corporation; and Nick Spiller Plumbing, LLC, a Florida limited liability company, Appellees.
    No. 2D11-3720.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
    Steven L. Brannock and Maegen P. Luka of Brannock & Humphries, Tampa, for Appellants.
    Patricia M. Baloyra and Francisco Armada of Broad & Cassel, Miami, for Ap-pellee Banco Popular North America.
    No appearance for remaining Appellees.
   LaROSE, Judge.

Crawford Residences, LLC, the borrower, and two of its guarantors, Carondelet, LLC, and Eduardo Goudie, appeal a final judgment of foreclosure on a condominium project in Naples. Because the trial court incorrectly ruled that Crawford was judicially estopped from arguing that a release did not bar its counterclaims and affirmative defenses, we reverse and remand for further proceedings.

To finance construction of the project, Crawford borrowed money from Banco Popular North America. The loan was reflected by a promissory note, secured by a mortgage on the real property, and guaranteed by Mr. Goudie and Carondelet. In June 2008, Crawford signed a renewed promissory note and a mortgage extension agreement that effectively deferred final payment from February 14 to August 15, 2008.

The agreement contained a release stating that Crawford relinquished “any and all liability, claims, counterclaims, defenses, actions, causes of action” that it “ever had” or “now ha[s] ... upon or by reason of any matter or cause whatsoever through the date hereof.” The first sentence of the agreement indicates that it “is made and entered into and effective as of the 14th day of February, 2008.... ”

Upon Crawford’s payment default, Ban-co sued. Crawford asserted counterclaims and raised several affirmative defenses. The trial court denied Banco’s motions for summary judgment and set the case for nonjury trial. Banco moved to bifurcate the trial, asking that the trial court first determine whether the release barred Crawford’s counterclaims and affirmative defenses. The trial court granted the motion. Crawford maintained that its affirmative defenses and counterclaims were directed, in part, to Banco’s alleged wrongful conduct after February 14, 2008, the effective date of the release.

The focus of Crawford’s case was that Banco breached its obligation to fund draw requests in a timely manner during construction. Mr. Goudie testified, by way of an affidavit submitted earlier in the case, that Crawford substantially completed the condominium project by May 2008. He emphasized that “but for [Banco’s] breach this project would have been completed the latest by January 2007,” and the units would have been sold by July 2007.

The trial court interpreted Mr. Goudie’s testimony to mean that Banco’s alleged delays occurred before February 14, 2008, and thus were barred by the release. Crawford maintained that Banco’s funding delays occurred before and after February 14, 2008. Banco asserted that judicial es-toppel barred Crawford, in light of Mr. Goudie’s testimony, from arguing that any postrelease conduct gave rise to affirmative defenses or counterclaims. The trial court agreed and awarded final judgment of foreclosure to Banco.

The trial court “is in the best position ‘to evaluate and weigh the testimony and evidence based upon its observation of the bearing, demeanor and credibility of the witnesses.’ ” In re Estate of Sterile, 902 So.2d 915, 922 (Fla. 2d DCA 2005) (quoting Shaw v. Shaw, 384 So.2d 13, 16 (Fla.1976)). Accordingly, we review the trial court’s decision in a nonjury case based on factual findings from disputed evidence for competent, substantial evidence. See id. at 922.

We cannot conclude that the record contains competent, substantial evidence to support the trial court’s interpretation of Mr. Goudie’s affidavit testimony. The testimony addresses the deleterious effect on the project due to Banco’s alleged funding delays prior to February 14, 2008. The testimony is silent about any later breaches. The trial court may have foreseen that any alleged damages Crawford sustained after February 14 were inconsequential. Such prescience, however, cannot form the basis for finding that Banco committed no breaches after February 14, 2008.

Properly assessing Mr. Goudie’s affidavit testimony necessarily compels us to reject Banco’s judicial estoppel argument. “Judicial estoppel is an equitable doctrine that prevents litigants from taking inconsistent positions in separate judicial or quasi-judicial proceedings.” Zeeuw v. BFI Waste Sys. of N. Am., Inc., 997 So.2d 1218, 1220 (Fla. 2d DCA 2008) (citing Blumberg v. USAA Cas. Ins. Co., 790 So.2d 1061, 1066 (Fla.2001)). At its core, judicial estoppel requires a showing that a litigant successfully maintained a position in one proceeding while taking an inconsistent position in a later proceeding, and that the 'other party was misled and changed its position in such a way that it would be unjust to allow the litigant to take the inconsistent position. See Blumberg, 790 So.2d at 1066.

Our review of the record supports no finding of judicial estoppel. First, Banco argues that Crawford’s position at trial— that its counterclaims and affirmative defenses also concerned postrelease conduct — is inconsistent with Mr. Goudie’s prior affidavit testimony. As we observed earlier, we see no such inconsistency.

Second, Banco fails to establish that Crawford successfully maintained a position in an earlier proceeding. “[J]udi-cial estoppel applies only when the position assumed in the earlier proceeding was successfully maintained.” Zeeuw, 997 So.2d at 1220. Moreover, “[t]o find that a party to be estopped has successfully maintained a claim or position requires that the first court adopt the claim or position, either as a preliminary matter or as part of a final disposition.’ ” Id. (quoting Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396, 401 (Fla. 4th DCA 2005)). Crawford correctly points out that there is no separate judicial proceeding or previous appeal. And, as we know, in the only proceeding below, Crawford lost.

Third, Banco was not misled by and did not change its position in reliance on Mr. Goudie’s affidavit. Banco maintained the same position throughout litigation: it sued because Crawford did not pay back the loan.

We therefore reverse and remand for the trial court to allow Crawford to proceed with its affirmative defenses and counterclaims arising from alleged breaches by Banco not barred by the release.

Reversed and remanded.

ALTENBERND and VILLANTI, JJ., Concur.

      . For convenience, we refer to the Appellants collectively as "Crawford,'' unless the context demands otherwise.


author: VILLANTI, Judge. ALTENBERND, Judge,

text:
    Jose F. SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5515.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.

      Jose F. Santiago, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

This case involves another misuse of the often misunderstood jury instruction on the forcible felony exception to self-defense. The misuse of the instruction in this case requires us to reverse the summary denial of one claim raised by Jose F. Santiago in his motion for postconviction relief and remand for further proceedings.

Generally, a defendant is entitled to have a jury consider his or her theory of defense as long as there is any evidence to support that theory. See, e.g., Bryant v. State, 412 So.2d 347, 350 (Fla.1982); Upshaw v. State, 871 So.2d 1015, 1017 (Fla. 2d DCA 2004) (noting that “[a] defendant is entitled to an instruction on his theory of defense ‘however flimsy the evidence is which supports that theory” (quoting Arthur v. State, 717 So.2d 193, 194 (Fla. 5th DCA 1998))). However, the legislature has modified a defendant’s right to have the jury consider the defense of self-defense when the defendant is engaged in a forcible felony at the time of the alleged self-defense. The forcible felony exception—section 776.041(1), Florida Statutes (2000)—provides that self-defense is not available as a defense if it occurred while the defendant was “attempting to commit, committing, or escaping after the commission of a forcible felony....” Thus, as a matter of public policy, the forcible felony exception prohibits defendants from availing themselves of the defense of self-defense in certain circumstances even when there are facts that might arguably support such a defense.

However, in recognition of the due process considerations underlying a defendant’s general right to have the jury instructed on his or her theory of defense, the legislature defined relatively narrow circumstances under which the forcible felony exception applies. First, the exception applies only when “the accused is charged with at least two criminal acts, the act for which the accused is claiming self-defense and a separate forcible felony.” Giles v. State, 831 So.2d 1263, 1265 (Fla. 4th DCA 2002); see also Martinez v. State, 981 So.2d 449, 453-54 (Fla.2008). Thus, “the proper test for determining the applicability of the instruction is not whether the self-defense act itself could qualify as a forcible felony, but whether, at the time of the self-defense, the accused was engaged in a separate forcible felonious act.” Giles, 831 So.2d at 1266.

Second, for the forcible felony exception to apply, the defendant must be engaged in the separate and independent felonious act at the time of the alleged self-defense. See Giles, 831 So.2d at 1266; Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004). A separate and independent forcible felony that occurs at some time other than when the alleged self-defense was occurring will not generally support giving the forcible felony instruction. See Garrell v. State, 972 So.2d 240, 242 (Fla. 2d DCA 2007) (noting that robbery that occurred earlier in the evening before the events giving rise to the claim of self-defense could not support the forcible felony instruction because, among other things, the robbery was not in progress “at the time of the shooting”).

Third, because the defendant must be engaged in a separate and independent forcible felony at the time of the self-defense, “[a]n instruction on the forcible-felony exception should not be given ‘unless the defendant is charged with an independent forcible felony, in addition to the offense for which he claims self-defense.’” Redding v. State, 41 So.3d 353, 354-55 (Fla. 2d DCA 2010) (quoting Wilson v. State, 944 So.2d 1244, 1245 (Fla. 2d DCA 2006)) (emphasis added); see also Zuniga v. State, 869 So.2d 1239, 1240 (Fla. 2d DCA 2004); Stoute v. State, 987 So.2d 748, 749 (Fla. 4th DCA 2008). Thus, when the defendant claims self-defense as to every offense with which he is charged, there is no separately charged “forcible felony” to trigger the application of the instruction. See Martinez, 981 So.2d at 453-54 (finding the forcible felony instruction improperly given when the defendant was charged with both attempted murder and aggravated battery and claimed self-defense as to both charges); Shepard v. Crosby, 916 So.2d 861, 864 (Fla. 4th DCA 2005) (holding that the forcible felony exception was inapplicable in a case in which the defendant claimed self-defense with respect to every charged offense, thus leaving no separately charged forcible felony to trigger the instruction).

Because there seemed to be some uncertainty in the trial courts concerning the proper use of the forcible felony exception, the supreme court set out an example in Martinez to illustrate its proper application.

[A] defendant enters a convenience store and points a knife at the clerk, asking him to empty the register. As the clerk is doing so, a customer approaches the defendant from behind and hits him in the head with a bottle. The defendant turns and stabs the customer.
At his subsequent trial, assuming the jury believes this version of events, the defendant could not successfully claim self-defense for his aggravated battery of the customer. While ordinarily an individual who has been hit in the head with a bottle would be justified in using force to repel this attack, the Legislature has determined that a person who is committing a crime (in this example, the robbery) is not entitled to use deadly force.

981 So.2d at 454 n. 4. In this example, the robbery was a separate and independent forcible felony that the defendant was engaged in at the time of the alleged self-defense and the defendant was not claiming self-defense as to the robbery offense. Therefore, the forcible felony exception would apply to prevent the defendant from claiming self-defense to any charge arising from the stabbing of the customer.

From this legal framework, we turn to the facts of Santiago’s case. The very limited record before this court reveals that Santiago was involved in an ongoing dispute with one George Smith concerning the wheels on Santiago’s car, which Smith contended had been stolen from him. According to Santiago, Smith, Derrick Phillips, and a third person who may have been Kevin Hayes confronted Santiago about the wheels while the four men were at a nightclub on July 20, 2000. The men exchanged words inside the club but then separated. Several hours later, as Santiago got in his car to leave the club, Smith and Phillips approached Santiago’s car and Phillips reached toward the waistband of his pants. Believing that Phillips was reaching for a gun, Santiago pulled out his own gun and fired several shots toward the men. Phillips was hit by a shot but survived. Hayes was also shot and later died. While fleeing the scene after the shooting, Santiago allegedly took some type of aggressive action towards two police officers who were responding to reports of the shooting. Santiago was apprehended a short time later a short distance from the scene.

Santiago was subsequently charged with one count of first-degree murder for the death of Hayes, two counts of attempted first-degree murder for shooting at Smith and Phillips, two counts of aggravated assault on a law enforcement officer, one count of obstructing or opposing an officer with violence, and one count of aggravated fleeing or eluding. Santiago’s sole defense to the murder charge and the two attempted murder charges was that he was acting in self-defense when he fired at Smith, Phillips, and Hayes.

During the jury charge conference, the State requested that the court give the instruction on the forcible felony exception to self-defense. Santiago’s counsel did not object to the State’s request for this instruction, and the trial court subsequently instructed the jury, in pertinent part, as follows:

An issue in this case is whether the Defendant acted in self defense. It is a defense to the offense with which Jose Fabian Santiago is charged if the death of Kevin Alexander Hayes resulted from the justifiable use of force likely to cause death or great bodily harm.
The use of force likely to cause death or great bodily harm is justifiable only if the Defendant reasonably believes that the force is necessary to prevent death or great bodily harm to himself while resisting
1. another’s attempt to murder him.
However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Jose Fabian Santiago was attempting to commit, committing, or escaping after the commission of Mur-derU

(Emphasis added.) After deliberations, the jury found Santiago guilty of the murder and attempted murder charges.

In both his original motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850 and an amended motion, Santiago argued that his trial counsel was ineffective for failing to object to the State’s request for the forcible felony instruction. Santiago contended that this instruction was improper under the facts of his case because it negated his sole defense to the murder and attempted murder charges. The postcon-viction court summarily denied this claim. On the facts here, we must reverse.

The limited record before us does not show that Santiago was engaged in a separate and independent forcible felony when he allegedly acted in self-defense. According to Santiago, he was leaving a nightclub when he was approached by three men with whom he had an ongoing dispute, and he believed that at least one of them was reaching for a gun. Santiago allegedly armed himself and shot at the men in self-defense. These facts do not show that Santiago was engaged in a separate and independent forcible felony at the time of the shooting. Assuming these facts to be true, as we must at this stage of the postconviction proceedings, see Franqui v. State, 59 So.3d 82, 95 (Fla.2011), Santiago’s trial counsel should have objected to the State’s request for the forcible felony instruction.

In its order summarily denying this claim, the postconviction court concluded that because Santiago was charged with more than one murder or attempted murder charge, that fact in and of itself was sufficient to require the court to give the forcible felony instruction. However, as noted above, the applicability of the forcible felony instruction is not determined solely by the number of offenses with which the defendant is charged. And the multiple murder and attempted murder charges in this case do not justify giving the instruction because Santiago raised self-defense to all three of these acts, leaving no independent forcible felony to support the instruction.

Moreover, contrary to the State’s argument in the trial court, the postconviction court, and here, the aggravated assault charges could not serve as the independent forcible felonies in this case because they were not being committed at the time of the alleged self-defense. Instead, the aggravated assaults allegedly occurred after the shooting. Because the aggravated assaults were separate temporally from the alleged self-defense, they cannot support the application of the forcible felony exception.

In addition, the instruction actually given by the trial court contradicts the State’s current position that the aggravated assault charges constituted the relevant separate and independent forcible felonies. The standard forcible felony instruction states that the use of deadly force is not justifiable if “(Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony).” Fla. Std. Jury Instr. (Crim.) 8.6(f). The instruction then requires the trial court to “[djefine applicable forcible felony.” Id. If, as the State now contends, the applicable independent forcible felonies were the aggravated assaults, then the trial court should have instructed the jury that Santiago’s use of deadly force was not justifiable if it was used while he “was attempting to commit, committing, or escaping from the commission of an aggravated assault.” Instead, however, the trial court instructed the jury, at the State’s request, that the applicable forcible felony was murder. Thus, the State’s current argument is simply not supported by the record.

In sum, Santiago stated a facially sufficient claim for ineffective assistance of counsel based on trial counsel’s failure to object to the use of the forcible felony instruction under the facts of this case. The postconviction court’s order denying relief on this claim did not attach any portion of the record refuting Santiago’s claim that the instruction was erroneously given. Accordingly, we reverse the summary denial of this claim and remand for further proceedings. On remand, the postconviction court may either attach portions of the record that conclusively refute Santiago’s claim or hold an evidentiary hearing on this issue. We affirm the denial of Santiago’s remaining claims without discussion.

Affirmed in part, reversed in part, and remanded for further proceedings.

CASANUEVA, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

Mr. Santiago claims that on July 20, 2000, three men, Mr. Smith, Mr. Phillips, and Mr. Hayes, approached him in a parking lot. Because of a prior verbal confrontation, Mr. Santiago was apprehensive about the men. When Mr. Phillips reached toward his waistband, Mr. Santiago claims that he feared for his life. Mr. Santiago pulled out a handgun, firing multiple shots at the three men. Mr. Hayes died in this seemingly one-sided gun fight; Mr. Phillips was injured; and Mr. Smith escaped injury. As a result, Mr. Santiago was charged with and convicted of one count of first-degree murder and two counts of attempted first-degree murder. He is serving life sentences for these offenses.

When the gunfire ended, Mr. Santiago fled the scene. The police were notified. Prior to his arrest, Mr. Santiago engaged in activity that caused him to be charged with aggravated assault on two law enforcement officers, resisting arrest with violence, and aggravated fleeing and eluding. He was convicted only of resisting arrest and fleeing and eluding for this portion of the day’s events.

This court affirmed all aspects of the judgments and sentences except for the charge of fleeing and eluding, which was reversed for discharge. See Santiago v. State, 847 So.2d 1060 (Fla. 2d DCA 2008). Mandate issued July 3, 2003. Mr. Santiago filed this postconviction motion on September 5, 2006. It is timely because he sought review of this court’s opinion by the Florida Supreme Court, which denied review on June 8, 2005, see Santiago v. State, 906 So.2d 1059 (Fla.2005) (table decision), and he then sought review by the United States Supreme Court, which denied his petition on October 31, 2005, see Santiago v. Florida, 546 U.S. 987, 126 S.Ct. 572, 163 L.Ed.2d 479 (2005). See Davis v. State, 953 So.2d 612, 613 n. 1 (Fla. 2d DCA 2007); see also Beaty v. State, 701 So.2d 856 (Fla.1997). This motion remained pending in the trial court for more than four years, and it has been on review for eighteen months. Thus, we release this opinion approximately twelve years after Mr. Santiago’s arrest.

At trial, Mr. Santiago wanted to rely on self-defense as his primary defense to the three homicide charges. These three alleged offenses, which were forcible felonies, occurred either simultaneously or in very rapid succession in a single episode. There was no other forcible felony committed by Mr. Santiago that preceded these events or occurred during these events. He was not escaping following the commission of an earlier forcible felony. The later events that took place when Mr. Santiago was fleeing cannot be considered in the analysis of his claim of self-defense in the parking lot. Under the case law that is fully explained in the court’s, opinion, it appears very likely that the instruction given under section 776.041, Florida Statutes (2000), was incorrect. See Martinez v. State, 981 So.2d 449 (Fla.2008).

Section 776.041 does not explain the policy underlying this confusing statute. However, in general, this statutory limitation on the right to claim self-defense applies only when the defendant has engaged or is engaging in some other violent crime that prompted a person to attack the defendant. If you are robbing a convenience store clerk, you cannot claim self-defense if you batter a customer who comes to the aid of the clerk and attacks you.

The details of the facts in this case are not well known to this court. If the actual facts are that Mr. Santiago was firing on Mr. Phillips, for example, and the other two victims came to Mr. Phillips’ defense, endangering the life of Mr. Santiago, then it might be that section 776.041 would prevent a claim of self-defense as to the charges relating to Mr. Smith and Mr. Hayes. But section 776.041 would not seem to prevent a claim of self-defense, at a minimum, for the first homicide charge.

On direct appeal, an erroneous jury instruction of this sort can be fundamental error if it deprives the defendant of a fair trial. See id. at 455. This court has held that, in the proper context, it may also support a claim of ineffective assistance of counsel. See Redding v. State, 41 So.3d 353 (Fla. 2d DCA 2010). Given the age of this proceeding, I am inclined to think that the case should be given some priority attention on remand.

      . The jury acquitted Santiago of the two counts of aggravated assault on a law enforcement officer and found him guilty of obstructing or opposing an officer with violence and aggravated fleeing or eluding. On direct appeal, this court reversed Santiago’s conviction for aggravated fleeing or eluding and remanded with directions to enter a judgment for the lesser offense of fleeing. Santiago v. State, 847 So.2d 1060 (Fla. 2d DCA 2003).

      . Santiago's original motion for postconviction relief alleged two claims for relief, and his amended motion realleged one claim from the original motion and alleged five new claims. The postconviction court summarily denied claim two from Santiago's original motion and claims two and three from the amended motion. The court held an eviden-tiary hearing on claim one from the original motion and claims one, four, and five from the amended motion, and it denied those claims after the hearing.

      . We note that if Santiago had claimed self-defense as to the aggravated assault charges, the forcible felony instruction might have been appropriately given as to those charges. In that case, the instruction would have told the jury that while Santiago’s use of force in that instance might have been justifiable under defined circumstances, his use of force was not justifiable if the jury were to find that the aggravated assaults were committed while Santiago was escaping after the commission of murder of Hayes or the attempted murders of Smith and Phillips.


author: VILLANTI, Judge.

text:
    Lisa WILLIAMS, as Personal Representative of the Estate of Robert Williams, Deceased, Appellant, v. GAFFIN INDUSTRIAL SERVICES, INC.; PCS Phosphate Company, Inc., a subsidiary of Potash Corp of Saskatchewan, Inc.; and Jetstream of Houston, LLP, a subsidiary of Federal Signal Corporation, Appellees.
    No. 2D10-2552.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens; and William N. Hutchinson, Jr., Fort Lauderdale, for Appellant.
    Cindy R. Galen of Eraclides, Johns, Hall, Gelman, Johannessen & Goodman, LLP, Sarasota; Frank H. Cole of Era-clides, Johns, Hall, Gelman, Johannessen & Goodman, LLP, Jacksonville; and Marie A. Borland and Robert A. Shimberg of Hill, Ward, & Henderson, P.A., Tampa, for Appellee Gaffin Industrial Services.
    No appearance for remaining Appellees.
   VILLANTI, Judge.

Lisa Williams, as personal representative of the estate of Robert Williams, appeals the trial court’s order granting Gaf-fin Industrial Services, Inc.’s motion to dismiss the complaint with prejudice. Because the trial court considered matters outside the four corners of the complaint when it granted the motion to dismiss, we reverse. We also note that, even if dismissal had been appropriate, the trial court should not have dismissed the complaint with prejudice because on these facts Florida Rule of Civil Procedure 1.190(a) gave Williams the absolute right to amend once without leave of court.

After her husband died in a work-related accident, Williams sued his employer, Gaffin. The complaint contained two counts directed at Gaffin: Count I alleged “Intentional Harm” under Florida’s workers’ compensation statute, and Count II was titled “Non-Delegable Duty.” Gaffin moved to dismiss the complaint against it with prejudice, arguing that the doctrine of election of remedies barred Williams’ action — that by filing a petition for workers’ compensation benefits and consummating a settlement agreement Williams had exclusively elected the State’s workers’ compensation remedy. Gaffin attached numerous exhibits in support of its motion to dismiss, none of which were attached to or incorporated into the complaint. These attachments purported to demonstrate that Williams had consciously elected the State’s worker’s compensation remedy.

Gaffin subsequently also filed an “emergency motion to dismiss” that raised two grounds for dismissal. First, Gaffin again alleged that Williams’ lawsuit was barred by the doctrine of election of remedies. Second, Gaffin alleged that the complaint failed to allege sufficient facts to bring Williams’ claim within the intentional tort exception to workers’ compensation immunity. Gaffin again attached numerous documents and an affidavit in support of its somewhat duplicative motion.

At the hearing on Gaffin’s motions to dismiss, Williams argued the “four corners” rule to preclude dismissal of the complaint and also argued that she had a right to amend the complaint to correct any alleged deficiencies. Nevertheless, the court dismissed Williams’ complaint with prejudice, concluding that, on the merits, the doctrine of election of remedies barred her claim against Gaffin. Because Williams was correct on both points, the trial court erred in dismissing her complaint.

We review de novo a trial court’s dismissal of a complaint. Peak v. Outward Bound, Inc., 57 So.3d 997, 998 (Fla. 2d DCA 2011). “Election of remedies is an affirmative defense that is not properly raised by means of a motion to dismiss where the affirmative defense does not appear on the face of the [complaint].” Vause v. Bay Med. Ctr., 687 So.2d 258, 261 (Fla. 1st DCA 1996); see also Fla. R. Civ. P. 1.110(d). “Even a relatively straightforward affirmative defense, such as one based upon the statute of limitations, is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense.” Vause, 687 So.2d at 261. “If the court is required to consider matters outside the four corners of the complaint, then the cause is not subject to dismissal on the basis of the affirmative defense.” Id. (“The plaintiffs complaint does not clearly show the applicability of [election of remedies] defense. Indeed, nowhere in the complaint is it asserted or suggested that the plaintiff pursued a workers’ compensation remedy to a determination on the merits or to final settlement so as to give rise to an election of remedies defense.”); see also Peak, 57 So.3d at 999 (reversing dismissal based on affirmative defense of sovereign immunity because the complaint did not conclusively establish its applicability).

In this case, the facts relied upon by Gaffin in support of its election of remedies defense did not appear on the face of the complaint or in any attachments to the complaint. Rather, they were supplied by Gaffin through various documents and an affidavit filed in support of its motion to dismiss. Therefore, Gaffin’s contentions on appeal that the complaint in this case incorporated “by reference” the doctrine of election of remedies available under workers’ compensation law, or that the affirmative defense of election of remedies appeared on the face of the complaint, are without merit. Because the trial court considered disputed matters outside the four corners of the complaint, it thereby erred in dismissing Williams’ complaint based on the doctrine of election of remedies. Whether this assertion — that election of remedies barred Williams’ claim — is correct cannot be determined from its appearance solely in a motion to dismiss.

Williams has also argued, in the alternative, that the trial court erred in dismissing her complaint with prejudice because she had the right to amend the complaint once as a matter of right and she made an ore tenus motion to do so at the hearing. In this appeal and below, Gaffin has argued that the trial court had discretion to dismiss the complaint with prejudice because “Gaffin issued its responsive pleading via its motion to dismiss” and because any amendment to the complaint would have been futile. While the argument becomes moot in view of our reversal based on the above discussion, because the supreme court has expressly rejected similar arguments, we reiterate the applicable legal standard.

Florida Rule of Civil Procedure 1.190(a) provides:

A party may amend a pleading once as a matter of course at any time before a responsive pleading is served or, if the pleading is one to which no responsive pleading is permitted and the action has not been placed on the trial calendar, may so amend it at any time within 20 days after it is served. Otherwise a party may amend a pleading only by leave of court or by written consent of the adverse party.

Here, contrary to Gaffin’s contention, it had not filed a responsive pleading; it had filed a motion to dismiss. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 567 (Fla.2005) (“A motion to dismiss is not a ‘responsive pleading’ because it is not a ‘pleading’ under the rules.”). And Williams had not previously exercised the right to amend the complaint. Therefore, rule 1.190(a) expressly gave Williams the absolute right to amend the complaint.

If the language of rule 1.190(a) was somehow unclear, the supreme court made it clear in Boca Burger, Inc., 912 So.2d at 563. In that case, the supreme court held that under rule 1.190(a) “a plaintiff has the absolute right to amend a complaint once as a matter of course before a responsive pleading is served, and a trial court has no discretion to deny such an amendment.” Id. The filing of a motion to dismiss does not end the plaintiffs absolute right to amend the complaint once. Id. at 567. The court also explained that a trial court’s discretion to deny amendment of the complaint arises only after the defendant files an answer or if the plaintiff has already exercised the right to amend once. Id. Therefore, in cases like this where a responsive pleading is permitted, a trial court does not have discretion to deny leave to amend on the basis that the complaint is not amendable until (1) the defendant has filed an answer or (2) the plaintiff has already exercised the right to amend once. Id. (“Although [prior case law] implied that a trial court may deny leave to amend where the complaint is clearly not amendable, a court only has such discretion under the second sentence of the rule, not under the first.”). In this case, Gaffin had not filed an answer and Williams had not exercised her right to amend. Therefore, rule 1.190(a) and Boca Burger, Inc. clearly provide that the trial court could not deny Williams’ request to amend the complaint based on Gaffin’s argument that an amendment would have been futile.

For the reasons expressed herein, we reverse the trial court’s final order dismissing with prejudice the complaint against Gaffin and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and KELLY, J., Concur.

      . Williams had also sued several other entities who are not involved in this appeal.

      . In fairness, we note that attorney Borland, who appeared at oral argument, only appeared in the case a matter of days prior to the argument and thus was not responsible for the position taken in Gaffin's brief or below.

      . See Forum v. Boca Burger, Inc., 788 So.2d 1055, 1062 (Fla. 4th DCA 2001). Based on the arguments made in the trial court, it appears that Gaffin’s counsel either did not know the applicable standard or failed to disclose it to the trial court, and it appears that the trial court was also uncertain as to the standard.


author: BLACK, Judge.

text:
    Johnny W. COCHRAN, III, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4317.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
   BLACK, Judge.

Cochran appeals the postconviction court’s order, which summarily denied his three claims filed pursuant to Florida Rule of Criminal Procedure 3.850 and dismissed his claim filed pursuant to Florida Rule of Criminal Procedure 3.800(c). We affirm without comment the postconviction court’s summary denial of Cochran’s three rule 3.850 claims, and we dismiss the appeal of his rule 3.800(c) claim. See Pillajo v. State, 60 So.3d 565, 566 (Fla. 2d DCA 2011).

KELLY and LaROSE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Steven MILLIGAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4522.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
    Steven Milligan, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Steven Milligan appeals the summary denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm the post-conviction court’s initial award of credit in case numbers 05-CF-9396, 05-CF-020250, and 07-CF-015242. However, we reverse the postconviction court’s denial of additional credit in case number 05-CF-020250 for the time Milligan spent in jail between July 25, 2007, and October 16, 2007.

While serving concurrent terms of probation in 05-CF-020250 and 05-CF-9396, Milligan was arrested on July 25, 2007, and charged with burglary of a conveyance. The burglary served as the basis for the revocation of probation in both cases. Accordingly, Milligan was arrested for violating his probation in 05-CF-9396 on July 25, 2007. However, he was not arrested for violating his probation in 05-CF-020250 until October 16, 2007, when he pleaded guilty to violating his probation in both cases. As a result, he was only given credit for the time he spent in jail between July 25, 2007, and October 16, 2007, in case number 05-CF-9396. He now claims that he is also entitled to the same amount of jail credit in case number 05-CF-020250. In a response filed in this court, the State has conceded that Milligan should be awarded the additional credit.

Because the record demonstrates that Milligan was in custody for violating probation in both cases, he is entitled to credit in both cases for the time he spent in jail between July 25, 2007, and October 16, 2007. See Gonzalez v. State, 17 So.3d 1277, 1278 (Fla. 2d DCA 2009); Tinker v. State, 870 So.2d 79, 80 (Fla. 2d DCA 2003). Accordingly, we reverse the postconviction court’s denial of Milligan’s motion and remand for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

WHATLEY and LaROSE, JJ„ Concur.


author: ALTENBERND, Judge.

text:
    In the Interest of J.E., J.E., M.E., L.G., and S.E., children. J.E., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D11-5571.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
    Linda C. Clark of Linda C. Clark, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Appel-lee Guardian ad Litem Program.
   ALTENBERND, Judge.

The Mother, J.E., appeals the final order terminating her parental rights to her five children. She argues that she did not receive adequate notice of the termination proceeding. The State concedes that the notice was inadequate. Accordingly, we reverse and remand for further proceedings.

The Department of Children and Family Services filed an amended petition to terminate the Mother’s parental rights to all of her five children in February 2011, alleging grounds including a failure to fulfill her case plan. The Mother appeared at an advisory hearing on March 1, 2011. The trial court advised her that if she did not appear at the adjudicatory hearing on May 9, 2011, she “could lose [her] children.” At the advisory hearing, the trial court also advised the Mother about a pretrial hearing on April 13, 2011, and a “trial call” hearing on May 4, 2011. The trial court did not inform the Mother that her attendance at these hearings was compulsory or that she could lose her children if she did not attend these hearings.

The Mother did not appear at either of these hearings. When she did not appear at the hearing on May 4, 2011, the trial court declared that she had consented to the' termination of her parental rights by nonappearance. On that basis, the trial court thereafter entered the order on appeal.

Because the Mother’s rights were terminated based on her nonappearance at the hearings preceding the adjudicatory hearing, the Mother argues that she did not have adequate notice to permit the court to terminate her rights based on nonappearance. The State concedes error. We, therefore, reverse and remand for an adjudicatory hearing for which the Mother shall receive proper notice.

Reversed and remanded.

SILBERMAN, C.J., and VILLANTI, J., Concur.


text:
    In the Interest of G.M., a child. M.W., Appellant, v. Department of Children and Family Services, and Guardian Ad Litem Program, Appellees.
    No. 2D12-59.
    District Court of Appeal of Florida, Second District.
    May 25, 2012.
    Ita M. Neymotin, Regional Counsel, Second District, and James P. Harris, Jr., Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jessica Stephans, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Laura E. Lawson, Statewide Guardian Ad Litem Office, Tavares, for Appellee Guardian Ad Litem Program.
   KHOUZAM, Judge.

M.W., the Mother, appeals the circuit court’s denial of her motion to set aside the final judgment of termination of parental rights to G.M. She argues that the court erred by failing to make sufficient findings to support a single-parent termination order under section 39.811(6), Florida Statutes (2011). Because this issue is now moot, we dismiss the appeal.

On March 16, 2011, the circuit court entered an order terminating both the Mother’s and the Father’s parental rights to G.M. The court found that both parents had failed to comply with and had materially breached the case plan. The court also determined that the Father had abandoned the child.

Both parents appealed. The Mother’s appeal was dismissed for failure to prosecute after her attorney found no meritorious grounds on which to base the appeal and the Mother failed to file a pro se brief. The Father’s appeal, on the other hand, resulted in a reversal. See G.M. v. Dep’t of Children & Family Servs., 71 So.3d 924 (Fla. 2d DCA 2011). This court found that the circuit court improperly terminated the Father’s rights for failure to comply with the case plan because the Father did not have the opportunity to comply — he had been incarcerated for the duration of the case and the Department of Corrections had failed to assist him in completing the case plan tasks. Id. at 926. Further, this court concluded that there was insufficient evidence to support the circuit court’s finding that the Father had abandoned the child. Id. at 926-27. On remand, the circuit court accepted a new case plan for the Father with the goal of reunification.

The Mother filed a motion to set aside the final judgment as to the termination of her parental rights because the judgment had already been reversed as to the termination of the Father’s parental rights and the court had not made findings sufficient to support a single-parent termination order under section 39.811(6), Florida Statutes. The circuit court denied the Mother’s motion, stating that it would reconsider the motion if the Father was reunified with the child.

The Father surrendered his parental rights on April 12, 2012, and a final judgment terminating his parental rights was entered on April 23, 2012, nunc pro tunc to April 12, 2012. “The intervening termination of the [Father’s] rights obviates any alleged need for the trial court to make findings under section 39.811(6)....” A.G. v. Dep’t of Children & Family Servs., 932 So.2d 311, 313 (Fla. 2d DCA 2006). Accordingly, we dismiss the appeal as moot.

Dismissed.

DAVIS and MORRIS, JJ., Concur.

      . M.W.'s motion was filed under Florida Rule of Juvenile Procedure 8.270 and invokes Florida Rule of Appellate Procedure 9.130(a)(5).


author: PER CURIAM.

text:
    Thomas E. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-864.
    District Court of Appeal of Florida; Fifth District.
    May 25, 2012.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Thomas Brown appeals from a jury verdict finding him a sexually violent predator pursuant to the Jimmy Ryce Act and involuntarily committing him. He specifically challenges the trial court’s finding of competency and the constitutionality of the Jimmy Ryce Act.

The trial court heard divergent expert opinions concerning Brown’s competency to proceed to trial and made a determination that the State’s expert was more credible. On appeal, it is not the function of this Court to substitute our judgment for that of the trial court. State v. Wilford, 720 So.2d 617, 618-19 (Fla. 5th DCA 1998). Additionally, we reject Brown’s challenge to the Jimmy Ryce Act. See Westerheide v. State, 831 So.2d 93 (Fla.2002).

AFFIRMED.

SAWAYA, COHEN and JACOBUS, JJ., concur.

      . § 394.910, et seq., Fla. Stat. (2008).


author: PER CURIAM. COHEN, J.,

text:
    James Bruce PETERSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1483.
    District Court of Appeal of Florida, Fifth District.
    May 25, 2012.
    James Bruce Peterson, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, for Appellee.
   PER CURIAM.

James Peterson appeals the lower court’s order dismissing his rule 3.850 motion as untimely. We reverse because Peterson’s motion was directed to his resen-tencing and was filed within two years of his sentence becoming final. Thus, it was timely. See Fla. R.Crim. P. 3.850(b). On remand, the lower court is instructed to consider Peterson’s motion on the merits.

REVERSED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.

COHEN, J., concurs specially, with opinion.

COHEN, J.,

concurs, and concurs specially.

The trial court’s initial denial of Peterson’s motion for postconviction relief is understandable. The motion appears to challenge the 2004 judgment and sentence and thus would have been time-barred under Florida Rule of Criminal Procedure 3.850.

Following the initial denial, however, Peterson filed a motion for rehearing, explaining his motion was not time-barred because he was actually challenging the 2010 sentence following his admission to a violation of probation.

Many litigants seem to view motions for rehearing as obligatory. However, Peterson’s case demonstrates why it is important not to simply be dismissive of such motions. His motion for rehearing should have alerted the trial judge to the fact that the motion was not time-barred. What we refer to as resentencing in the majority opinion is simply the sentencing on a violation of probation. The trial judge could have either gone forward with considering the merits of the claim or allowed Peterson to amend under Spera. While I would have found no error in the denial of the original motion, once clarified by the motion for rehearing, dismissal as time-barred constituted error.

      . After Peterson violated his probation on several occasions, he was resentenced to five years in the Department of Corrections on January 12, 2010. He filed the instant rule 3.850 motion on November 30, 2011.

      . Spera v. State, 971 So.2d 754 (Fla.2007).


text:
    Blois MOBLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1221.
    District Court of Appeal of Florida, First District.
    May 25, 2012.
    Blois Mobley, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, ROWE, and RAY, JJ„ concur.


author: RAY, J.

text:
    Malcolm D. DELANCY, Jr., Appellant, v. Kenneth S. TUCKER, Secretary, Department of Corrections, Appellee.
    No. 1D11-5437.
    District Court of Appeal of Florida, First District.
    May 29, 2012.

      Appellant Malcolm D. Delaney, Jr., pro se.
    Pamela Jo Bondi, Attorney General; and Ann C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

In 2007, Malcolm Delaney, Jr., the appellant, entered a guilty plea in Bay County to one count of trafficking in cocaine. No direct appeal was taken. Four years after Appellant’s judgment and sentence became final, Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1297-1300 (M.D.Fla.2011), held that section 893.13, Florida Statutes, as amended by section 893.101, Florida Statutes, is facially unconstitutional because it eliminates all mens rea from the drug statute. Appellant, who is incarcerated in Walton County, filed a petition for writ of habeas corpus in Walton County citing Shelton; challenging the constitutionality of the statute on which his plea and conviction were based; and asserting that, because he was convicted under an unconstitutional statutory scheme, his conviction is void and D.O.C. authorities have no legal authority to keep him in prison. The court dismissed the petition for lack of jurisdiction to review the legality of a conviction adjudicated in another circuit court, without prejudice to Appellant’s seeking appropriate relief in the sentencing court. We affirm the dismissal because the ultimate ruling is correct, but for different reasons from what the trial court enunciated. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002) (stating that “tipsy coachman” doctrine allows an appellate court to affirm a ruling by the trial court that reached the right result, but for wrong or different reasons).

A direct appeal is the proper avenue for a facial constitutional challenge to a criminal statute. See, e.g., Carreras v. State, 81 So.3d 590 (Fla. 5th DCA 2012) (affirming judgment and sentence in direct appeal challenging facial constitutionality of drug possession statute based on Shelton ); Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004). Appellant did not appeal his judgment and sentence, and he cannot rely on habeas corpus as a remedy for claims that could and should have been raised on direct appeal or in post-conviction proceedings. Fla. R.Crim. P. 3.850(h); Nelson v. State, 43 So.3d 20, 34 (Fla.2010) (denying habeas corpus petition because claims that statute was vague and over-broad and unconstitutional as-applied were not raised on direct appeal and were thus procedurally barred); White v. Dugger, 511 So.2d 554, 555 (Fla.1987); Zuluaga v. State, Dep’t of Corrections, 32 So.3d 674, 676-77 (Fla. 1st DCA 2010); Robbins v. State, 564 So.2d 256, 257 (Fla. 1st DCA 1990).

Assuming arguendo, as the trial court did, that Appellant’s petition could be deemed a rule 3.850 motion, the court correctly determined it would be time-barred and declined to transfer it to the sentencing court. Appellant’s 2007 judgment and sentence became final long before he filed the 2011 petition. See Earls v. State, 958 So.2d 1153 (Fla. 1st DCA 2007). Thus, Appellant missed the two-year filing deadline in rule 3.850(b), which is a bar that generally cannot be waived. Jamison v. State, 73 So.3d 317, 318 (Fla. 1st DCA 2011); Meyer v. State, 570 So.2d 1001, 1003 (Fla. 2d DCA 1990). A petitioner cannot circumvent the two-year filing limitation by seeking habeas corpus relief. Jamison, 73 So.3d at 318; Finley v. State, 394 So.2d 215, 216 (Fla. 1st DCA 1981).

Although rule 3.850(b) contemplates narrow exceptions to the two-year filing window, Appellant does not fall within any legally recognized exception. See Meyer, 570 So.2d at 1003 (holding that district court of appeals’ holdings that witness tampering statute was unconstitutional were not a “change in the law” coming from the United States Supreme Court or the Florida Supreme Court that could form the basis for post-conviction relief). Florida courts have rejected constitutional challenges to the statutory scheme at issue in Shelton. See, e.g., Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); Flagg v. State, 74 So.3d 138, 140 (Fla. 1st DCA 2011). Shelton is not binding on State of Florida courts and thus does not afford Appellant a legal basis for relief. See, e.g., Flagg, 74 So.3d at 140.

Accordingly, we affirm the order dismissing the petition because habeas corpus is not an available remedy for this claim and Appellant is procedurally barred from asserting a rule 3.850 claim in the sentencing court. See Zuluaga, 32 So.3d at 677 (stating that dismissal, rather than transfer, of a habeas corpus petition is proper when a petitioner raises the type of claim that, if properly preserved, could have been raised on direct appeal, or would be untimely if considered as a rule 3.850 motion).

AFFIRMED.

WOLF and MAKAR, JJ., concur.


text:
    MIAMI-DADE COUNTY SCHOOL BOARD and Gallagher Bassett Services, Inc., Appellants, v. David RUSS, Appellee.
    No. 1D11-5748.
    District Court of Appeal of Florida, First District.
    May 29, 2012.

      Luis F. Estrada of Angones, McClure & Garcia, P.A., Miami, for Appellants.
    David Cohen, Hollywood, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) rejecting its statute of limitations defense and awarding benefits. For the reasons below, we reverse.

Section 440.19(4), Florida Statutes (2006), provides:

Notwithstanding the provisions of this section, the failure to file a petition for benefits within the periods prescribed is not a bar to the employee’s claim unless the carrier advances the defense of a statute of limitations in its initial response to the petition for benefits. If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence.

The JCC found the E/C’s “initial response” to Claimant’s petition for benefits was various documents dated November 9, 2009— notice of appearance, request for production, letter of representation, notice of deposition, and letter to the mediator — and concluded that, because the E/C did not therein assert a statute of limitations defense, the E/C had waived that defense. The E/C argues that its “Response to the Petition for Benefits,” filed November 10, 2009, should be considered its “initial response.” We agree because our observation in Certain v. Big Johnson Concrete Pumping, Inc., 34 So.3d 149 (Fla. 1st DCA 2010), that the “initial response” “denied the claim in its entirety” evinces the need for an “initial response” to explicitly state a position either denying or conceding the particular claims therein. This reading of Certain fits with the requirement in section 440.192(8), Florida Statutes, that an E/C in a “response to benefits” must “list all benefits requested but not paid and explain its justification for nonpayment,” although that requirement does not appear to be intended as a definition.

In determining that the “initial response” was the November 9 documents, the JCC used the phrase “based on a preponderance of the evidence”; the E/C asserts the proper standard of proof was instead “clear and convincing evidence” because it proved compliance with sections 440.185 and 440.055, Florida Statutes. We disagree because section 440.19(4) places the (potentially) heightened burden on Claimant to prove estoppel, whereas the burden rests on the E/C to prove it asserted the statute of limitations defense in its “initial response.”

The JCC also found the E/C’s failure to respond to the petition for benefits within fourteen days, as required by section 440.192(8), waived the statute of limitations defense. The E/C is correct that this court reached the contrary conclusion in Denestan v. Miami-Dade County, 789 So.2d 515 (Fla. 1st DCA 2001), and Claimant concedes the error. To the extent the E/C argues Claimant’s assorted estoppel arguments lack merit, that argument is premature because the JCC did not rule on those arguments.

REVERSED and REMANDED for further proceedings.

PADOVANO, ROWE, and RAY, JJ, concur.