author: LAMBERT, B.D., Associate Judge.

text:
    CITY OF ORLANDO, Appellant, v. Carmen PINEIRO, as Personal Representative, etc., Appellee.
    No. 5D10-1388.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.

      Walter A. Ketcham, Jr. and Ramon Vazquez of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, for Appellant.
    Christopher V. Carlyle, Shannon MeLin Carlyle and Kelly L. Rooth of The Carlyle Appellate Law Firm, The Villages, for Ap-pellee.
   LAMBERT, B.D., Associate Judge.

The City of Orlando (“the City”) appeals the final judgment rendered in this wrongful death action brought by Carmen Pinei-ro (“Pineiro”) as personal representative of the estate of her son, Edwin Alvarado. The jury found the City 55% responsible for the death of Alvarado and the Fabre defendant, Kenyon Crowe (“Crowe”), 45% at fault, and final judgment was rendered accordingly. The City argues that a new trial should be ordered because of (1) numerous improper closing arguments of Pi-neiro’s counsel, and (2) erroneous eviden-tiary rulings made by the trial court; it concludes that a new trial is warranted in any event because the verdict is contrary to the evidence and the law. For the reasons explained seriatim, we reverse and remand for a new trial.

On the evening of January 20, 2006, Edwin Alvarado, 21 years of age, had just left a barbershop when a pickup truck driven by Crowe struck his vehicle, killing him. Pineiro was appointed personal representative of her son’s estate and initially brought suit against both Crowe and the owner of the vehicle. The complaint was later amended to add the City. Pineiro asserted that officers from the Orlando Police Department, immediately prior to the accident, negligently engaged in a high speed pursuit of Crowe in violation of the City’s pursuit policy and that the pursuit proximately caused or contributed to the accident and Alvarado’s death. Pineiro eventually resolved her claims against the other defendants and the case went to trial against the City. Because the impropriety of comments made during closing argument is dispositive of this appeal, we address those comments first. We then turn to other evidentiary rulings to provide guidance to the parties upon retrial and, finally, we address the City’s argument that the verdict was against the manifest weight of the evidence.

I. CLOSING ARGUMENT

The City argues that the trial court committed reversible error in not sustaining four objections made during Pineiro’s closing argument and in not granting its post-trial motion for new trial based on these errors and other improper closing arguments made by Pineiro but not objected to by the City. We review a trial court’s order granting or denying a motion for a new trial based on objected — to or unobjected — to improper argument for abuse of discretion. Murphy v. Int’l Robotic Sys. Inc., 766 So.2d 1010, 1030-31 (Fla.2000); Bocher v. Glass, 874 So.2d 701, 704 (Fla. 1st DCA 2004). “If the issue of an opponents improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’ ” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1271 (Fla.2006) (quoting Tanner v. Beck, 907 So.2d 1190, 1196 (Fla. 3d DCA 2005)). However, for an unobjected — to improper argument to support a new trial order, the unobjected — to improper argument must be “of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.” Id.; see also Murphy, 766 So.2d at 1029-30. We separately address the objected-to and unobjected-to alleged improper closing arguments.

A. OBJECTED-TO CLOSING ARGUMENT.

1. Inflammatory Comment.

At the conclusion of Pineiro’s rebuttal closing argument, counsel stated:

The City of Orlando has to be held accountable for the death of Edwin Alvarado and you must compensate them for an amount equal to their harm. The harm that they suffered. If you fail to do so, they escape responsibility. But more importantly, if you fail to do so in this case, if you see OPD [Orlando Police Department] outside the courtroom or in the elevator or in the parking garage, guess what they are going to be doing, folks?

The City objected and a sidebar was held. The City first argued that what the Orlando Police Department would do outside the courtroom was neither relevant nor rebuttal to any comment by the City. The trial court understandably inquired as to the direction of the argument. Pineiro’s counsel advised that he would be arguing to the jury that if it failed to award damages in favor of Pineiro against the City, the Orlando Police Department would be laughing. The City reiterated its objection that this comment was not rebutting the City’s closing, was very prejudicial and argumentative, and was not a comment on the evidence because there was no evidence as to what the Orlando Police Department would do after the case was over. The court overruled the City’s objection, and Pineiro concluded his rebuttal closing argument as follows:

And if you don’t hold the City of Orlando accountable or you don’t compensate the mother and father of Edwin Alvarado in an amount equal to their harm that the City of Orlando caused, when you see the City of Orlando folks outside the courtroom or in the elevator or out in the parking garage, guess what they are going to be doing? They are going to be doing exactly what they were doing at the scene of the accident and at the Citrus Bowl, laughing.

On appeal, the City argues that these comments were highly inflammatory, without basis in evidence, not in response to the City’s closing, and were intended to do nothing but prejudice the jury. We agree. There was no legitimate basis for this inflammatory argument; it was clearly a calculated effort by Pineiro’s counsel, in his last comment to the jury in this hotly disputed trial, to elicit an emotional response from the jury, that, in order to avoid being laughed at, post-verdict, it must find the City liable.

This court has long cautioned attorneys against resorting to inflammatory, prejudicial argument. Walt Disney World Co. v. Blalock, 640 So.2d 1156 (Fla. 5th DCA 1994); Silva v. Nightingale, 619 So.2d 4 (Fla. 5th DCA 1993). In Murphy, the Florida Supreme Court provided guidance and direction regarding closing argument:

The purpose of closing argument is to help the jury understand the issues in a case by “applying the evidence to the law applicable to the case.” Hill v. State, 515 So.2d 176, 178 (Fla.1987). Attorneys should be afforded great latitude in presenting closing argument, but they must “confine their argument to the facts and evidence presented to the jury and all logical deductions from the facts in evidence.” Knoizen v. Bruegger, 713 So.2d 1071, 1072 (Fla. 5th DCA 1998); see also Venning v. Roe, 616 So.2d 604 (Fla. 2d DCA 1993). Moreover, closing argument must not be used to “inflame the minds and passions of the jurors so that their verdict reflects an emotional response ... rather than the logical analysis of the evidence in light of the applicable law.” Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985).
Attorneys presenting closing argument in Florida courts, whether in criminal or civil trials, are governed by Rule 4-3.4 of the Rules Regulating The Florida Bar. Rule 4-3.4 states:
A lawyer shall not ... in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant, or the guilt or innocence of an accused.
R. Regulating Fla. Bar 4-3.4(e). The underpinnings of this ethical rule are well-founded; it not only prevents lawyers from placing their own credibility at issue in a case, it also limits the possibility that the jury may decide a case based on non-record evidence. See Davis v. South Florida Water Management District, 715 So.2d 996, 999 (Fla. 4th DCA 1998); Forman v. Wallshein, 671 So.2d 872, 875 (Fla. 3d DCA 1996). In sum, Rule 4-3.4 is in place to help insure that juries render verdicts based on record evidence and applicable law, not based on impermissible matters interjected by counsel during closing argument.

Murphy, 766 So.2d at 1028.

This argument was clearly improper.

2. Value of Life/Send-a-Message Argument.

In an attempt to assist the jury-in evaluating damages to award Alvarado’s parents for Alvarado’s death, Pineiro’s counsel stated:

The question you may be asking is, how do I possibly put a value on the life of a loved one?

The City correctly objected on the ground that this is not the correct standard of damages. Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010); Wilbur v. Hightower, 778 So.2d, 381, 383 (Fla. 4th DCA 2001). It is clearly error to ask a jury to place a monetary value on the life of a decedent because “ ‘the value of a human life is not an element of damages and is not the proper topic for closing argument.’ ” Wilbur, 778 So.2d at 383 (quoting Russell v. Trento, 445 So.2d 390, 392 (Fla. 3d DCA 1984)). The trial court did not specifically rule on the objection, but directed Pineiro’s counsel to “stick to pain and suffering.”

Seemingly undeterred, Pineiro’s counsel continued:

How do you possibly put a figure on the value of the pain and suffering for Edwin’s mother and father? Unfortunately, there is no exact measurement or formula. One thing we know is that virtually every day we place some form of a value on life. Think about the times an individual is lost at sea or by boat or plane. We don’t hesitate to send helicopters, the Coast Guard, hundreds of men and women and divers to search for person. When considering spending money to save a stranded person, we don’t stop first and ask the person’s age, race or social status. We all recognize the value of human life.
You may be asking yourself, what good is the money going to do? We all know that money cannot bring back Edwin, but that’s not the issue here.... Also, the money does help to tell Edwin’s mother and father that you, the jury, recognize that what has been done is wrong and should not have ever happened.

At this point, the City again objected and moved for a mistrial, arguing that the statement that an award of money will tell the parents that what was done is wrong and should never have happened is an improper send-a-message argument. The motion for mistrial was denied.

We agree with the City that the comment was improper send-a-message argument, Kloster Cruise Ltd. v. Grubbs, 762 So.2d 552 (Fla. 3d DCA 2000), because the jury was being asked to award money not based on the proof supporting the proper recoverable damages allowed in a wrongful death action, but to remedy wrongful, intentional, as opposed to negligent, conduct. Had this been the only improper comment, we may not have concluded that reversal was required. However, as we are obliged to reverse based on the inflammatory comment addressed above, this comment adds support for our decision. The cumulative effect of the improper comments leads us to conclude that the City was deprived' of a fair trial and that a new trial to cure the prejudice is required. See Werneck v. Worrall, 918 So.2d 383, 388 (Fla. 5th DCA 2006); Bocher, 874 So.2d at 704.

3. Additional Send-A-Message Argument.

Pineiro’s counsel later argued that Pineiro was not seeking a monetary award based upon sympathy, but was seeking damages equal to the harm the City caused. However, counsel then argued:

Instead, the law says that you must speak to Edwin’s mother and father through your verdict. It is through this piece of paper that each and every one of you tell Mom and Dad that Edwin’s life did have value....
Many of us have suffered the loss of a loved one during our lifetime but have never received money for it. Why should Edwin’s mother and father recover money? The answer is simple. The law in Florida recognizes that the loss of a loved one is a traumatic and tragic experience. We want to do everything we can to stop these experiences from happening unnaturally. We want others to act responsibly and to do—

At this point, the City objected and, at sidebar, argued that this comment was a send-a-message argument, which only applies in a punitive damages case. The trial court advised counsel not to say “sentiments or words” to that effect.

Although we find this an improper argument as it clearly suggests to the jury that a significant verdict will send a message to stop these experiences from happening and will make others less likely to act irresponsibly, on appeal, the City did not raise this specific argument. Rather, the City argued that this was an improper golden rule argument and was also a factual misrepresentation that Pineiro would be uncompensated absent a favorable verdict because Pineiro had previously settled her claims against the other defendants. Because neither of the two arguments the City makes on appeal were made below, its arguments are not preserved for review. Aills v. Boemi, 29 So.3d 1105 (Fla.2010); Herskovitz v. Hershkovich, 910 So.2d 366, 367 (Fla. 5th DCA 2005) (“Absent jurisdictional or fundamental error, an appellate court should not consider issues that were not presented to the trial court.”). We caution against the use of any send-a-message arguments on retrial.

4. References to Alvarado’s Parents.

Lastly, the City argues that Pineiro’s counsel’s repeated references in closing to Alvarado’s parents as “mom” and “dad” violated an earlier admonition or order that the parents should be referred to as “mother” and “father.” Our review of the record indicates that Pineiro’s counsel regularly used the informal references over the City’s objection, but because no ruling was secured on the objection, the issue was not preserved for review. LeRetilley v. Harris, 354 So.2d 1213 (Fla. 4th DCA), cert. denied, 359 So.2d 1216 (Fla.1978).

B. UNOBJECTED-TO ARGUMENT.

The unobjected-to closing arguments by Pineiro’s counsel that the City believes justify a new trial are a comment regarding the age of the City’s counsel; a reference to the fee paid by the City to its expert witness; an improper “value of life” analogy; and the statement that the City would do whatever it takes to try to win. Pursuant to Murphy v. International Robotic Systems, Inc., 766 So.2d 1010, 1031 (Fla.2000), for unobjected-to comments in closing argument to justify reversal, they must be (1) improper; (2) harmful; (3) incurable; and (4) so damaging to the fairness of the trial that the public’s interest in the system of justice requires a new trial. The Florida Supreme Court defined harmful comments those that are “so highly prejudicial and of such collective impact as to gravely impair a fair consideration and determination of the case by the jury” and defined an incurable argument as one that, “even if the trial court had sustained a timely objection to the improper argument and instructed the jury to disregard the improper argument, such curative measures could not have eliminated the probability that the unobjected-to argument resulted in an improper verdict.” Id. at 1030, 1031. As to the fourth prong, the court recognized that closing arguments appealing to racial, ethnic, or religious prejudice traditionally fit within the narrow category requiring a new trial even in the absence of an objection. Id. at 1030. Our analysis under Murphy does not proceed to this fourth prong unless the complaining party first establishes the improper, harmful, and incurable requirements. Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242 (Fla. 2d DCA 2007). We also review the unobjected-to closing argument consistent with the admonition by the supreme court that it has come as close as possible to “closing the door” on appellate review of unpreserved challenges to closing argument consistent with notions of due process which deserve public trust in the judicial system. Murphy, 766 So.2d at 1031.

1. Counsel’s Age.

The City’s counsel, in his closing argument, made reference to his own age. In rebuttal closing argument, Pineiro’s counsel, while acknowledging his respect for opposing counsel, basically agreed that his opponent was, as he himself admitted, getting old, noting that the City’s counsel had inadvertently misstated some otherwise undisputed facts. While it is improper to make derogatory remarks about opposing counsel, Maercks v. Birchansky, 549 So.2d 199 (Fla. 3d DCA 1989), and it should be avoided, contextually, this comment does not require reversal.

2. The City’s Expert Witness.

Numerous eyewitnesses testified on behalf of Pineiro as to their factual observations of the pursuit of Crowe by the police just prior to the accident. The City defended, asserting that, objectively, the pursuit could not have occurred as testified to because not enough time elapsed between the start of the purported pursuit and its tragic conclusion, which occurred just nine-tenths of a mile from the start, for the police to have engaged in the pursuit and reached the speeds estimated by Pineiro’s witnesses. The City retained an expert whose opinion testimony supported the City’s position.

Pineiro’s counsel, in his initial closing, commented:

Now, if I understand the City of Orlando’s position, on one hand, they don’t want you to believe any of the nine witnesses. But just in case you do, let me head up to Connecticut and find me an expert and pay him $25,000.

In his later rebuttal closing, Pineiro’s counsel argued that the City’s expert did not have a Ph.D. and was not an engineer, yet the fee was $25,000. While these arguments infer or suggest that the City will do whatever it takes to win by paying this type of fee to, in Pineiro’s view, a somewhat unaccomplished expert, we find the comments, under Murphy, do not justify reversal,

3. Value of Life—Analogy to Dwight Howard.

Pineiro’s counsel stated to the jury:

We live in a very strange society. If someone is at fault in a crash, ran a red light and injured Dwight Howard, and Dwight Howard broke a bone and couldn’t play basketball for a year, no jury in the world would have any problem compensating Dwight Howard $20 million or whatever the value of one year’s salary is for Dwight.
But we’re all here today trying to evaluate Mom and Dad’s pain and suffering for the loss of their son. Edwin was not famous. He was not a star. Very few people even knew who he was. Edwin was one of many faces in the crowd, but to Mom and Dad, he was the most important person in the world.

This is an improper value of life argument, Fasani v. Kowalski, 43 So.3d 805 (Fla. 3d DCA 2010), Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA 2010), but does not meet the Murphy test for reversal.

4. Doing Whatever it Takes to Try to Win.

One of the witnesses testifying for Pineiro was Johnny Harris, an employee of the City. In closing, Pineiro’s counsel argued:

About one week before trial, just one week before trial, the City finally takes the deposition of Johnny Harris. They don’t like his testimony so much, what do they do? A City of Orlando employee. They went and you saw it, a stack of documents to try to discredit Johnny Harris, a City of Orlando employee. The City will go and do whatever it takes to try to win this case, but it didn’t work with Johnny Harris.

This argument is improper. The statement that the City would “do whatever it takes to try to win this case” suggests that the City is engaging in improper or less than honest tactics. Zealous advocacy is not improper. Carnival Corp. v. Pajares, 972 So.2d 973, 977 (Fla. 3d DCA 2007) (finding “grievous” the plaintiffs arguments suggesting defendant acted improperly by defending plaintiffs claim and denigrating its defenses). We find, however, that, while this argument should be avoided on retrial, under Murphy, this unob-jected-to comment does not require reversal.

Because none of the unobjected-to arguments, while arguably improper, meet the Murphy test for reversal, they have not been a factor in our decision to reverse this case and remand for a new trial. Carnival Corp., 972 So.2d at 979.

II. OTHER EVIDENTIARY ISSUES

To facilitate the retrial, we address the other evidentiary issues raised.

A. Evidence of Crowe’s Guilty Plea.

The City contends that even though the jury heard that Kenyon Crowe was testifying from prison, his anticipated release date, his use of marijuana on the day of the accident, and that his blood alcohol level was, in essence, twice the legal limit, the trial court erred in precluding evidence of Crowe’s plea of guilty to DUI manslaughter and his conviction thereof for his part in Alvarado’s death. Pineiro responds that because Crowe was no longer a party but merely a Fabre defendant, evidence of his conviction was improper and, in any event, its admission would have been unfairly prejudicial because an admission against interest can only be used as it affects the interests of the person making the plea and cannot be used against others.

In the context of this case, we do not read Fabre to preclude this evidence. In civil actions, where one of the issues is the guilt of a person convicted of a criminal offense or some fact necessarily involved in the determination of such guilt, it is proper to admit evidence of the person’s plea of guilty to the criminal offense. § 772.14, Fla. Stat. (2010); Boshnack v. World Wide Rent-A-Car, Inc., 195 So.2d 216, 219 (Fla.1967). On retrial, evidence of Crowe’s guilty plea and a certified copy of the judgment of conviction reflecting Crowe’s plea is admissible as an admission against interest because this admitted culpability for the accident and Alvarado’s death is a factor for consideration by the jury.

B. Prior Arrests.

The City argues that the trial court impermissibly precluded inquiry of Pineiro’s eyewitnesses regarding their prior arrests by the Orlando Police Department. The City asserted that, pursuant to section 90.608, Florida Statutes (2009), evidence of these prior arrests, regardless of the lack of conviction, is admissible to demonstrate the witnesses’ bias against the City.

Section 90.608 provides in pertinent part:

Any party, including the party calling the witness, may attack the credibility of a witness by:
(1) Introducing statements of the witness which are inconsistent with the witness’s present testimony.
(2) Showing that the witness is biased.
(3) Attacking the character of the witness in accordance with the provisions of s. 90.609 or s. 90.610.

The City points out that at least one of Pineiro’s witnesses, on direct examination, testified he had friends and relatives employed in the Orlando Police Department, but when the City attempted, on cross-examination, to introduce evidence of the witness’s prior arrests by the Orlando Police Department, the trial court precluded the testimony. Pineiro argues that no error occurred because section 90.610 permits a party to attack the credibility of any witness only with evidence of a conviction of a prior felony or a crime involving dishonesty or false statement, which was not the situation here. However, section 90.610(3) specifically provides that nothing in section 90.610 affects the admissibility of evidence under section 90.608.

We find that the trial court failed to apply the proper standard in summarily precluding evidence that may demonstrate bias against the City. On retrial, the trial court should, pursuant to section 90.403, determine whether the probative value of any prior arrests of Pineiro’s witnesses by the Orlando Police Department is substantially outweighed by the danger of unfair prejudice.

III. VERDICT AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE

The City argues that the trial court erred in not granting its motion for new trial because the verdict is contrary to the manifest weight of the evidence. The City contends that no objective view of the evidence, which includes video surveillance evidence from the business establishment where the pursuit purportedly began and evidence at the crash site, could support the conclusion that its police officers had sufficient time to engage in this pursuit. The City therefore concludes that the jury either disregarded the jury instructions or based its verdict on improper passion, prejudice, and undue influence. We disagree.

Pineiro called nine eyewitnesses, each of whom testified to their observations of the speed and manner in which the City’s police officers were driving just prior to the accident. The jury was free to reject the City’s expert witness testimony, even if not contradicted by an opposing expert, in favor of conflicting lay testimony or other evidence. Durousseau v. State, 55 So.3d 543, 562 (Fla.2010) (“Where expert testimony is admitted, it is still the sole province of the jury or court as trier of facts to accept or reject such testimony, even if it is uncontroverted.”), pet. for cert. filed, (U.S. May 10, 2011) (No. 10-10518); Parrish v. City of Orlando, 53 So.3d 1199, 1203 (Fla. 5th DCA 2011) (“[A] jury is free to accept or reject an expert’s testimony or to give it such weight as it deserves, considering the witness’s qualifications, the stated basis for the witness’s opinion, and all of the evidence in the case.”); see also Wald v. Grainger, 64 So.3d 1201 (Fla.2011) (“A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony.”).

-■ In summary, we reverse the final judgment based on the inflammatory and prejudicial comment regarding the hypothetical scene the jurors would face post-trial if they did not find in Pineiro’s favor. In addition, we conclude that the cumulative effect of the objected-to improper comments, as discussed above, acted in concert to deprive the City of a fair trial. Wer-neck; Bocher. Such comments cannot be condoned, and we urge vigilant adherence, on retrial, to professional standards during closing argument.

REVERSED and REMANDED FOR A NEW TRIAL.

ORFINGER, C.J. and JACOBUS, J., concur.

      . Though Judge Julie O'Kane entered the final judgment, she did not preside over the trial or enter the order denying the City’s motion for new trial. Judicial assignments had apparently changed when the motion for entry of the final judgment was considered.

      . Fabre v. Marin, 623 So.2d 1182 (Fla.1993), receded from in part on other grounds, Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249 (Fla.1995). "A ‘Fabre defendant’ is a non-party defendant whom a party defendant asserts is wholly or partially responsible for the negligence alleged.” Salazar v. Helicopter Structural & Maint., Inc., 986 So.2d 620, 622 n. 1 (Fla. 2d DCA 2007).

      . One of Pineiro's eyewitnesses, Janice Kilpa-trick, had testified that she observed officers after the accident administering no help to anyone in the vehicles and that they were standing there, laughing. While we are somewhat unclear why this evidence was relevant, there being no testimony from Pinei-ro's witness regarding the subject of the alleged laughter, no objection was raised at trial. In the City's case, two officers testified that any laughter pertained to the smallish stature of a third officer, who helped lift one of the vehicles.

      . Appellate counsel was not Pineiro's trial counsel.

      . The City, as a municipality, is not subject to punitive damages. See § 768.28(5), Fla. Stat. (2010).

      . An obvious reference to the police pursuit in this case.

      . C.f. Superior Indus. Int'l, Inc. v. Faulk, 695 So.2d 376 (Fla. 5th DCA 1997).

      . A golden rule argument is improper because it depends upon "inflaming the passions of the jury and inducing fear and self interest.” Bocher v. Glass, 874 So.2d 701, 703 (Fla. 1st DCA 2004); see also Tremblay v. Santa Rosa County, 688 So.2d 985, 987 (Fla. 1st DCA 1997). “The classic Golden Rule argument specifically requests the jurors to imagine themselves as the injured party, and to award damages as if they were the injured party.” SDG Dadeland Assocs., Inc. v. Anthony, 979 So.2d 997, 1003 (Fla. 3d DCA 2008). Implicit golden rule arguments can also be improper. Id.

      . Dwight Howard is an all-star basketball player with the Orlando Magic in the National Basketball Association.

      . Our review of the record also indicates that Pineiro’s counsel argued that the jury did not see "one bit of remorse of any of the officers who testified in trial. Not one of them looked over at mom during the trial and said sorry for your loss.” No objection was made at trial and the issue was not raised on appeal. This argument is improper because it suggests the City is doing something wrong by either vigorously defending itself or not showing proper sympathy or empathy. It should also be avoided on retrial. Chin v. Caiaffa, 42 So.3d 300 (Fla. 3d DCA 2010). A separate reference to the City’s alleged failure to conduct an "honest, fair" investigation into Alvarado’s death was also improper, Carnival Corp. v. Pajares, 972 So.2d 973 (Fla. 3d DCA 2007), but was not raised on appeal.

      . Pineiro unsuccessfully sought to preclude Crowe from being a Fabre defendant on the verdict form but did not pursue this issue on appeal.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    Mark A. MINCY, Appellant, v. Amy K. MINCY, Appellee.
    No. 5D10-2039.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.
    Walter E. Foster, III, of Walter E. Foster, III, P.A., Daytona Beach, for Appellant.

      Dorothy J. McMichen, of McMichen, Ci-nami, and Demps PLLC, Orlando, for Ap-pellee.
   SAWAYA, J.

Mark A. Mincy (“Husband”) appeals a non-final order entered in the underlying dissolution of marriage action awarding Amy K. Mincy (“Wife”) temporary attorney’s fees, accounting fees, and business valuation fees in the amount of $28,000.

We affirm the award of $11,000 for fees awarded to Wife’s current attorney. We reverse the award of $5,000 for costs of valuation of Husband’s business because Wife has abandoned her request for a business valuation. We also reverse the awards of $4,000 for fees for Wife’s prior attorney and $8,000 for her accountant fees and remand to the trial court to make sufficient findings regarding the reasonableness of those awards. See § 61.16(1), Fla. Stat. (2010) (“The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter....”); Stanton v. Stanton, 50 So.3d 688, 691 (Fla. 2d DCA 2010); Baker v. Baker, 35 So.3d 76 (Fla. 2d DCA 2010).

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . We have jurisdiction pursuant to rule 9.130(a)(3)(C)(iii), Florida Rules of Appellate Procedure.


author: PER CURIAM.

text:
    Robert Lee YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6410.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Robert Lee Young, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant is appealing an order in which the trial court struck the appellant’s postconviction claims as facially insufficient and, in accordance with Spera v. State, 971 So.2d 754, 761 (Fla.2007), granted the appellant thirty days to amend. The order is a nonappealable, nonfinal order. See Lee v. State, 939 So.2d 154, 155 (Fla. 1st DCA 2006).

DISMISSED.

BENTON, C.J., HAWKES and CLARK, JJ., concur.


text:
    Jason Lavell NICKOLAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6231.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee; Jason L. Nickolas, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

In this Anders appeal, we affirm Appellant’s judgment and sentence, but remand for the trial court to correct the order revoking his probation. Although the State alleged that Appellant violated his probation by committing five new law offenses, the lower court found that the evidence supported revocation based only on the offense of resisting an officer with violence. The revocation order provides, however, that Appellant violated the conditions of his probation by committing all five offenses. We, therefore, remand for the trial court to correct the revocation order. See Washington v. State, 37 So.3d 376 (Fla. 1st DCA 2010) (affirming a judgment and sentence in an Anders appeal but remanding for the court to correct a revocation order reflecting the appropriate condition violated); Leggs v. State, 27 So.3d 155 (Fla. 1st DCA 2010) (affirming, in an Anders appeal, the appellant’s judgment and sentence, but remanding with directions that the trial court enter an order specifying the conditions of probation violated). Appellant need not be present. See Baldwin v. State, 855 So.2d 1180 (Fla. 1st DCA 2003) (remanding for entry of a written revocation order conforming to the oral pronouncement in an Anders appeal).

AFFIRMED and REMANDED.

THOMAS, WETHERELL, and SWANSON, JJ„ concur.

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


text:
    Keith DAWSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1943.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2011.
    Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Defendant Keith Dawson appeals his convictions for dealing in stolen property and false verification of ownership on a pawnbroker transaction form. He contends that the trial court erred in instructing the jury on the inference arising from selling property below fair market value. The instruction given accurately states the law, but there is no evidence in the record of the fair market value. We are compelled by our prior decision in a nearly identical case to find that this was error. See, Barfield v. State, 613 So.2d 507, 508 (Fla. 1st DCA 1993). Because we are unable to say the error was harmless, we reverse.

REVERSED.

PADOVANO, LEWIS, and THOMAS, JJ., concur.


author: LEVINE, J.

text:
    Maria L. CLAIR, Appellant, v. Lindi E. PERRY, Appellee.
    No. 4D09-2214.
    District Court of Appeal of Florida, Fourth District.
    Aug. 10, 2011.
    Elizabeth K. Russo of Russo Appellate Firm, P.A. Miami, and Williams, Leininger & Cosby, P.A., Stuart, for appellant.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Paul P. McMahon of Gary, Williams, Finney, Lewis, Watson & Sper-ando, P.L., Stuart, for appellee.
   On Motion for Rehearing

LEVINE, J.

We grant the motion for rehearing, withdraw our prior opinion issued on February 16, 2011, and substitute this opinion in its place.

The issue presented in this appeal is whether the trial court abused its discretion by ordering a new trial to permit appellee to present witness testimony that had been excluded by the court during trial. We find no abuse of the trial court’s discretion in reconsidering its prior order excluding the witness’s testimony, and we affirm.

Appellee was injured in a motor vehicle accident. Appellant admitted to negligence, and the matter proceeded to trial on the issue of damages. At trial, appellee wanted to introduce the testimony of her treating physician, Dr. Theofilos. Appellant objected to a portion of Dr. Theofilos’s testimony regarding whether appellee sustained a permanent injury on the basis that his testimony constituted an expert opinion, which would have required appel-lee to notify appellant of the opinion before trial pursuant to Rule 1.280(b)(4). The trial court found that the non-disclosure of Dr. Theofilos’s permanency opinion during discovery constituted “trial by ambush,” and the court excluded that portion of Dr. Theofilos’s testimony.

After the jury determined that appellee sustained no permanent injury, appellee filed a motion for new trial and once again reiterated her position that she was not required to disclose Dr. Theofilos’s opinion in the course of discovery. At the motion hearing, appellant’s counsel conceded that the “issue ... isn’t whether Theofilos is to be considered an expert witness or a treating physician.” Instead, appellant’s counsel argued that appellant was prejudiced in her ability to mount a defense because she had no notice of the substance of Dr. Theo-filos’s testimony. The trial court found that appellee disclosed sufficient information in discovery to put appellant on notice that Dr. Theofilos might testify about the permanency of appellee’s injuries. Thus, the court determined that its original decision to exclude Dr. Theofilos’s testimony regarding permanency of the injury was erroneous. The court granted appellee a new trial, and this appeal ensues.

We review the trial court’s order granting a new trial for an abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999).

Appellant argues on appeal that Dr. Theofilos’s opinion on permanency constitutes expert testimony as a matter of law. As such, appellant claims that the opinion should have been disclosed in discovery. Rule 1.280(b)(4), governing discovery of expert witnesses, provides that a party is entitled to the “facts known and opinions held by experts ... acquired or developed in anticipation of litigation or for trial.”

We need not decide whether Dr. Theofi-los’s permanency opinion in this case constituted expert testimony, and we decline appellant’s invitation to hold that a permanency opinion is always formulated in anticipation of litigation. The trial court’s initial decision to exclude Dr. Theofilos’s testimony and its decision to grant a new trial were both motivated by a fear of “trial by ambush.” The characterization of Dr. Theofilos as a fact witness or an expert witness was not dispositive. Thus, the issue in this appeal is whether appellant was prejudiced in her ability to mount a defense because she had no notice of the substance of Dr. Theofilos’s testimony. We agree with the trial court’s ruling on the motion for a new trial that appellant suffered no prejudice in this case.

In Binger v. King Pest Control, 401 So.2d 1310 (Fla.1981), the supreme court held that a trial court may exercise its discretion to exclude testimony from a witness not disclosed in discovery pursuant to a pretrial order. The trial court’s discretion is “guided largely by a determination as to whether use of the undisclosed witness will prejudice the objecting party.” Id. at 1314. “Prejudice” under Binger is “surprise in fact.” Id. In addition to prejudice, the supreme court instructed lower courts to consider other factors in exercising their discretion, including the following:

(i) the objecting party’s ability to cure the prejudice or, similarly, his independent knowledge of the existence of the witness; (ii) the calling party’s possible intentional, or bad faith, noncompliance with the pretrial order; and (iii) the possible disruption of the orderly and efficient trial of the case (or other cases).

Id. Exclusion of witness testimony, however, is a “drastic” remedy and should be invoked “only under the most compelling of circumstances.” Dep’t of Health & Rehab. Svcs. v. J.B. By & Through Spivak, 675 So.2d 241, 244 (Fla. 4th DCA 1996).

This court has held that “allowing parties at trial to substantially change the essential import of pretrial testimony of any kind without prior disclosure in discovery” presents the same kind of “surprise in fact” and should be analyzed using the same factors discussed in Binger. Menard v. Univ. Radiation Oncology Assocs., LLP, 976 So.2d 69, 72 (Fla. 4th DCA 2008). Thus, a party’s attempt to introduce testimony at trial, the substance of which was not disclosed in discovery, may run afoul of Binger.

In this case, the trial court’s pretrial order required the parties to exchange the “names and addresses of all potential fact witnesses, and a summary of the nature of their testimony.” Appellee listed Dr. Theofilos as a “[tjreating healthcare provider” on her expert witness list and explained that he would “testify as to the injuries sustained” by appellee. Appellee also expressed in her pleadings and interrogatories that she sustained a permanent injury, and another physician was permitted to offer a permanency opinion at trial without objection. Appellant was also provided with all of Dr. Theofilos’s medical records, containing all of the data upon which the doctor formed his permanency opinion. Thus, appellant was on notice that permanency would be an issue at trial and that appellee’s physicians might express an opinion on the lasting nature of her condition. See Scarlett v. Ouellette, 948 So.2d 859 (Fla. 3d DCA 2007). Appellant was fully aware of Dr. Theofilos’s role in treating appellee, and appellee was not engaged in any bad faith tactics to hide this opinion.

Moreover, appellant knew that appellee claimed a severe, chronic injury, but appellant chose not to depose the physician most recently treating that condition. Under such circumstances, the fault for any “surprise” at trial lies with appellant. See Ganey v. Goodings Million Dollar Midway, Inc., 360 So.2d 62 (Fla. 1st DCA 1978) (holding that a defendant was not entitled to a new trial when a plaintiffs physician rendered a permanency opinion at trial that had not been disclosed before trial). In any event, appellant’s claims of “surprise” are dubious, given that appellant’s counsel expressed at trial that he was “not surprised at all to hear that Dr. Theofilos found a permanent injury.”

Accordingly, we find no abuse of discretion in the trial court’s decision to reconsider its decision to exclude Dr. Theofilos’s permanency testimony under Binger. Therefore, we affirm.

Affirmed.

POLEN and CIKLIN, JJ„ concur.

      . In many circumstances, “a treating doctor ... while unquestionably an expert, does not acquire his expert knowledge for the purpose of litigation but rather simply in the course of attempting to make his patient well.” Frantz

        v. Golebiewski, 407 So.2d 283, 285 (Fla. 3d DCA 1981). Therefore, a treating physician is not generally classified as an expert witness. Id. Nevertheless, the rule is not absolute, and a treating physician may be deemed an expert in certain circumstances. Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, 186 (Fla. 3d DCA 2005).


text:
    John R. KEELER, Appellant, v. Maria Fernanda KEELER, Appellee.
    No. 3D10-1797.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Caruana & Jacobs and Elizabeth F. Pinero and Albert G. Caruana, Plantation, for appellant.
    Nancy C. Wear, Miami, for appellee.
    Before WELLS, C.J., and RAMIREZ and CORTINAS, JJ.
   PER CURIAM.

John Keeler appeals an order entered on June 10, 2010, finding him in contempt of court, ordering his incarceration and providing a purge amount of $131,500. He paid the purge amount. Because of delays in the briefing schedule, this matter was not heard for oral argument until May 11, 2011. We affirm the order under appeal in all respects except the trial court’s finding the husband in criminal contempt. We can understand the frustration of the trial court with all the evidence that was presented, but the court’s finding that Mr. Keeler had the present ability to pay was “based upon his history of obtaining funds when needed.” In Bowen v. Bowen, 471 So.2d 1274, 1279 (Fla.1985), the Florida Supreme Court stated:

“If incarceration is deemed appropriate, the court must make a separate, affirmative finding that the contemnor possesses the present ability to comply with the purge conditions set forth in the contempt order. In determining whether the contemnor possesses the ability to pay the purge amount, the trial court is not limited to the amount of cash immediately available to the contemnor; rather, the court may look to all assets from which the amount might be obtained.”

From the trial court’s order, it seems the judge focused on the past, not the present ability to pay. We therefore vacate the contempt but otherwise affirm. We need not remand the case because the husband has paid the purge amount already.

Affirmed in part; reversed in part.


text:
    Manuel AGUILERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1545.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Manuel Aguilera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Pierre SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1319.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Pierre Smith, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Pierre Smith appeals the trial court’s denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, he alleges three grounds for rule 3.850 relief. The third, an ineffective assistance of trial counsel claim, is a facially sufficient claim for rule 3.850 relief. The trial court, by summarily denying Smith’s motion, has failed to conclusively refute this claim. Consequently, we reverse and remand for further proceedings. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Smith’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.


author: DAVIS, Judge.

text:
    D.C.K.L., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2083.
    District Court of Appeal of Florida, Second District.
    Aug. 12, 2011.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

D.C.K.L. challenges the trial court’s order withholding adjudication and placing her on juvenile probation for the delinquent act of criminal mischief, a second-degree misdemeanor. We affirm the disposition without further comment. The State has conceded that the written order of disposition fails to identify the degree of the offense. We therefore remand for the limited purpose of the entry of a corrected written disposition order that accurately reflects the degree of the offense for which her adjudication was withheld.

Affirmed and remanded for entry of a corrected order.

LaROSE and CRENSHAW, JJ., Concur.


text:
    Abraham De Pinillo MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-969.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.
    Rehearing Denied Aug. 12, 2011.
    Ricardo Corona and Juan C. Freire of The Corona Law Firm, Miami, for Appellant.
    No Appearance for Respondent.
   ON MOTION FOR REHEARING AND WRITTEN OPINION

PER CURIAM.

We deny Appellant’s motion for rehearing, but withdraw our previous per curiam opinion dated June 14, 2011, and substitute the following opinion in its place.

AFFIRMED. See Santiago v. State, 65 So.3d 575 (Fla. 5th DCA 2011); see also Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011) (holding, inter alia, that the decision in Padilla v. Kentucky, - U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), should not be applied retroactively, while certifying the question as one of great public importance); accord Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). We join the Second and Third District in certifying the following question as a question of great public importance:

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

SAWAYA, TORPY, COHEN, JJ., concur.


text:
    Eric WASHINGTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1551.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.
    Eric Washington, Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in ease number 2009-CF-6161, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

LAWSON, EVANDER and JACOBUS, JJ., concur.


text:
    Mayra DECOCQ and James D. Decocq, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, etc., Appellee.
    No. 5D10-3971.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Matthew D. Valdes and Craig R. Lynd, Kaufman, Englett & Lynd, PLLC, Orlando, for Appellant.
    Nancy C. Ciampa, of Carlton Fields, P.A., Miami, and Michael K. Winston and Dean A. Morande, Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See, State ex. rel. Gore v. Chillingworth, 126 Fla. 645, 171 So. 649 (1936); Craven v. J.M. Fields, Inc., 226 So.2d 407 (Fla. 4th DCA 1969); Decker v. Kaplus, 763 So.2d 1229, 1229 (Fla. 5th DCA 2000).

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


text:
    J.D.F., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-944.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See C.M. v. State, 51 So.3d 540 (Fla. 5th DCA 2010).

ORFINGER, C.J., GRIFFIN and PALMER, JJ., concur.


text:
    Arlette DEANDRADE, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, etc., Appellee.
    No. 5D10-583.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Arlette Deandrade, Kissimmee, pro se.
    Andrew D. Manko, of Carlton Fields, P.A., Tallahassee, and Michael K. Winston and Dean A. Morande, of Carlton Fields, P.A., West Palm Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932 (Fla. 4th DCA 2010), review denied, 53 So.3d 1022 (Fla.2011); see also Citibank v. Dalessio, 756 F.Supp.2d 1361 (M.D.Fla.2010).

SAWAYA, MONACO and TORPY, JJ., concur.


text:
    STATE of Florida, Appellant, v. Marc Anthony DIAZ, Appellee.
    No. 5D10-3710.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Diaz, 850 So.2d 435 (Fla.2003).

ORFINGER, C.J., COHEN and JACOBUS, JJ., concur.


text:
    Timothy E. BRADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1880.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Any error was harmless. See Blanton v. State, 978 So.2d 149 (Fla.2008).

ORFINGER, C.J., TORPY and JACOBUS, JJ., concur.


text:
    Willie Allen STEWART, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2065.
    District Court of Appeal of Florida, Fifth District.
    Aug. 16, 2011.
    Derek B. Brett, of The Brett Law Firm, P.A., Orlando, and Jeffrey D. Deen, Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fifth District, Altamonte Springs, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Westerheide v. State, 881 So.2d 93 (Fla.2002).

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


author: SHEPHERD, J.

text:
    Sam WALLACE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2593.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   SHEPHERD, J.

Sam Patrick Wallace appeals his conviction for strongarm robbery, claiming the trial court should have granted his motion for judgment of acquittal because the State failed to prove he took the property alleged in the information. We agree and remand for entry of a judgment on the permissive lesser included offense of battery.

Wallace was charged with strong-arm robbery, pursuant to section 812.13(2)(c), Florida Statutes (2008). The information alleged that Wallace, “by force, violence, assault or putting in fear, [ ] did unlawfully and feloniously attempt to take ... [an] IPOD AND/OR BACK PACK, [from Carlos Andino], with intent to temporarily or permanently deprive [Andino] of the property, and in such attempt, did GRAB AND/OR CHOKE CARLOS ANDINO WHILE TAKING [the] IPOD AND/OR BACKPACK, in violation of s. 812.13(l)(2)(c) ..., Fla. Stat.”

Section 812.13(1), Florida Statutes (2008), defines robbery as:

the taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Section 812.13(2)(c), provides, “If in the course of committing the robbery the offender carried no firearm, deadly weapon, or other weapon, then the robbery is a felony of the second degree.... ” Unfortunately for the State, even viewing the evidence in a light most favorable to the State, as we are required to do, the evidence adduced by the State does not support the conviction.

The only witness to present evidence relevant to the alleged taking of the backpack and iPod, the element of the crime which Wallace contends remained unproven at the close of the evidence, was the victim, Andino, himself. Andino testified that on the day of the crime, Wallace approached him as he was walking up the steps of the Miami-Dade County Public Library, backpack over his shoulder and iPod in hand, and asked him for a cigarette. Andino obliged. At the top of the steps, Andino entered a nearby bathroom. Wallace followed. Once inside the bathroom, Wallace asked Andino for a dollar. Andino opened his wallet, which contained $222 cash, and gave a dollar to Wallace. He then put the wallet back into his pocket. As Andino exited the bathroom, Wallace grabbed Andino and began to choke him, demanding the cash. During the struggle, the strap to the backpack broke and the backpack and iPod, which Andino had inserted in the backpack upon entering the bathroom, fell to the floor. After a brief period, Andino managed to extract himself from the bathroom with Wallace in tow. A security guard intervened and detained Wallace until police arrived. After Wallace was arrested and the police investigation completed, Andino went back into the bathroom, picked up the backpack from where it rested, and took it home.

Defense counsel twice moved for a judgment of acquittal on the basis the State did not prove a prima facie case of strongarm robbery. In his motion, made at the close of the State’s case, defense counsel argued, “There’s been no ... evidence submitted that [Wallace] intended to deprive Mr. Andino of any type of property, rather evidence has contradicted it.” The trial court denied the motion. At the close of all the evidence, defense counsel argued:

the testimony that we heard did not suggest that Mr. Wallace was even aware that there was an IPod in the bag.... The witness testified that the only interest ... Mr. Wallace had in any of his property was the cash in his wallet[,] which he testified was two hundred and twenty-two dollars.

Defense counsel’s motion for judgment of acquittal again was denied. We conclude the trial court erred. That being so, we address the proper remedy upon remand.

Section 924.34, Florida Statutes (2008), provides:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

In I.T. v. State, 694 So.2d 720, 723 (Fla.1997), the Florida Supreme Court made clear “section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses.” Battery is a permissive lesser included offense of robbery. See Fla. Std. Jury Instr. (Crim.) 15.1 (robbery); 8.3 (battery). Because the allegations in the Information included elements of battery, specifically that Wallace “did GRAB AND/OR CHOKE CARLOS ANDINO WHILE TAKING A BACK PACK AND/OR IPOD,” and the jury was properly instructed as to battery, see § 784.03, Fla. Stat. (2008) (stating a battery occurs when a person “1. Actually and intentionally touches or strikes another person against the will of the other; or 2. Intentionally causes bodily harm to another person”); see also Fla. R. Crim. P. 3.150(b) (stating a trial court shall instruct on any offense that as a matter of law is a necessarily included offense or a lesser included offense of the offense charged in the indictment or information and is supported by the evidence), we reverse the judgment and direct the trial court to enter judgment of conviction for the permissive lesser included offense of battery. See § 924.34; Michelson v. State, 927 So.2d 890, 893 (Fla. 4th DCA 2005) (finding no constitutional prohibition against remand for conviction of a lesser included offense when the jury specifically has found the existence of all elements of the offense and where the error causing remand does not disturb those findings); Baker v. State, 578 So.2d 37, 39 (Fla. 4th DCA 1991) (stating jury may be instructed on a category two crime when the information alleges the elements of the crime).

Reversed and remand with directions.

      . Our standard of review of a trial court's denial of a motion for judgment of acquittal is de novo. Monestime v. State, 41 So.3d 1110, 1113 (Fla. 3d DCA 2010). We view the evidence presented in the light most favorable to the State. Beasley v. State, 774 So.2d 649, 658 (Fla.2000).


text:
    Anicio DOMINGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2820.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Clayton R. Kaeiser, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: SUAREZ, J.

text:
    BECC HOLDING II, INC., Appellant, v. Ilya RACHTANOV, et al., Appellees.
    No. 3D10-2684.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.

      Michael Farrar, Miami, for appellant.
    R.A. Cuevas, Jr., Miami-Dade County Attorney, and James K. Kracht and Jorge Martinez-Esteve, Assistant County Attorneys; Ilian Rashtanov, Fort Lauderdale, for appellees.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   SUAREZ, J.

BECC Holding II, Inc. (“BECC”), appeals a final order disbursing funds as a result of a tax deed sale. We affirm pursuant to section 197.582(2), Florida Statutes (2010), which permits excess proceeds remaining after a tax deed sale to be used to pay off any “lien of record held by a governmental unit against the property.”

On August 19, 2009, a condominium owned by BECC was sold at a Miami-Dade County tax deed sale due to the failure of BECC to pay the property taxes. Appellee, Ilya Rachtanov (“Rachtanov”), purchased the condominium for $40,000 as the highest bidder and received a tax deed from Miami-Dade County. Following the sale, $22,416.45 remained as surplus funds in the registry of the court. At the time of the purchase of the condominium at the tax deed sale, an outstanding tax certificate existed encumbering the property. The certificate was issued by Miami-Dade County for unpaid 2008 property taxes. On March 28, 2010, Rachtanov redeemed the 2008 tax certificate by paying $5,190.45 to the tax collector. On September 21, 2010, Rachtanov filed a supplemental motion for reimbursement from surplus for his payment to redeem the 2008 tax certificate. The trial court granted the motion and held that the 2008 tax certificate was a lien of record held by a governmental unit against the property, and that, accordingly, the 2008 certificate must be redeemed from the surplus funds from the tax deed sale. We agree.

As tax certificates can only be enforced through the tax collector, cannot be validly transferred without the endorsement of the tax collector, and are subject to redemption by payment of back taxes to the tax collector, the 2008 tax certificate was a governmental lien under section 197.582(2). As tax certificates are assessible by searching the public records on the County’s property tax roll, the 2008 tax certificate was a lien of record. § 197.582(2), Fla. Stat. (2010). Therefore, the ruling of the trial court was correct and we affirm the order below.

Affirmed.


author: RAMIREZ, J.

text:
    Pablo MARTINEZ, Appellant, v. AURORA LOAN SERVICES, LLC, Appellees.
    No. 3D10-2581.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Anthony P. Carbone, for appellant.

      Akerman Senterfitt, and Katherine E. Giddings, Nancy M. Wallace, Tallahassee, and William P. Heller, Fort Lauderdale, for appellee.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

ON MOTION TO DISMISS

Aurora Loan Services, LLC moved to dismiss this appeal based on an order denying Pablo Martinez’s post-judgment motion to quash service of process rendered on August 27, 2010, and the denial of his motion for rehearing rendered on September 24, 2010. We dismiss the appeal for lack of jurisdiction.

Martinez filed his notice of appeal on October 1, 2010. We previously have stated that a trial court lacks jurisdiction to entertain a motion for rehearing of an order denying a motion to set aside default judgment because motions for rehearing of orders issued under Florida Rule of Civil Procedure 1.540(b) are not authorized. See Drak, L.L.C. v. Salcines Dev., Inc., 5 So.3d 713 (Fla. 3d DCA 2009); Francisco v. Victoria Marine Shipping, Inc., 486 So.2d 1386, 1391 (Fla. 3d DCA 1986) (stating that an order entered under rule 1.540 does not rise to the level of a judgment and therefore, a trial court lacks authority to entertain a motion for rehearing from such an order). Thus, the motion for rehearing was not authorized and did not toll the time for filing the notice of appeal which should have been filed within thirty days of the August 27 order. Because the notice of appeal was untimely filed, we lack jurisdiction and therefore grant the motion to dismiss.

Dismissed.


text:
    Jerome MULLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2475.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Carlos J. Martinez, Public Defender, Eleventh Judicial Circuit, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hill v. State, 549 So.2d 179, 182 (Fla.1989) (failure to present constitutional argument grounded on due process to trial court procedurally bars appellant from presenting argument on appeal); State v. Fernandez, 546 So.2d 791 (Fla. 3d DCA 1989) (approving a “cash for weight” agreement in which the amount of the confidential informant’s fee was based upon the amount of drugs involved.)


text:
    Gary HARPER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-564.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Carlos J. Martinez, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ and CORTIÑAS, JJ.
   RAMIREZ, J.

Gary Harper appeals his judgment of conviction and sentence. We affirm because it was within the trial court’s discretion to recall a jury that had not yet been discharged in order to correct a clerical error in its verdict.

The State charged Harper with kidnapping and burglary with an assault or battery. The jury returned a verdict of guilty of the lesser count of false imprisonment, and of simple burglary. The jury read the verdict, and the court polled the jury. The court then reviewed the verdict form and found that the jury had failed to fill out completely the verdict form to indicate either the presence or absence of aggravating factors for burglary. The court immediately resubmitted the verdict form to the jury for completion. The jury completed the verdict form, finding existence of the aggravating factors that: the burglary was committed in a dwelling, with a human being inside, and that Harper committed both an assault and battery inside the dwelling. The court then polled the jury again and thereafter excused the jury.

The standard of review for challenges to a trial court’s decision to accept or reject a verdict is abuse of discretion. See J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So.2d 367 (Fla. 3d DCA 2002). A trial court may recall a jury after being discharged to clear inconsistency, ambiguity, defect, or clerical error, provided that thei’e has not been opportunity for jury contamination. See Thomas v. State, 789 So.2d 1104 (Fla. 4th DCA 2001); Davis v. State, 631 So.2d 318 (Fla. 3d DCA 1994). Here, as the jury had not yet been discharged, there was no opportunity for jury contamination. In addition, the jury’s inadvertent failure to fill in part the verdict form constituted clerical error. Thus, the court did not abuse its discretion when it resubmitted the verdict form to the jury for completion.

Affirmed.


text:
    Jean Mary MAVERICK, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1990.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rhonda F. Gelfman, North Miami Beach, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Maritza MAXWELL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and West Flagler Associates, Ltd., Appellees.
    No. 3D11-1560.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Maritza Maxwell, in proper person.
    Louis A. Gutierrez, Tallahassee, for ap-pellee, Unemployment Appeals Commission.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

We dismiss this appeal as untimely. As in Etienne v. Simco Recycling Corp., 721 So.2d 399 (Fla. 3d DCA 1998), our dismissal is without prejudice. Maritza Maxwell is free to ask the Unemployment Appeals Commission to vacate and re-enter the operative order. If the Commission cooperates, then Maxwell may timely appeal the re-entered order. If not, then she may appeal the Commission’s refusal to re-enter the order.

Appeal dismissed.


text:
    Robert FLORES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2487.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2011.
    G. Kipling Miller, Daytona Beach, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The Petitioner, Robert Flores, seeks ha-beas corpus relief based on the refusal of the trial • court to set bond. Petitioner asserts that the trial court failed to make the requisite findings to support a denial of bond. We agree.

The petitioner by amended information has been charged with burglary with an assault or battery, which is a first degree felony punishable by imprisonment not exceeding life. See Fla. Stat. § 810.02(2)(a). As such, the petitioner is entitled to bond upon reasonable conditions unless the State makes a showing, and the trial court makes a finding, that “proof of guilt is evident or the presumption is great” that the petitioner committed the crime charged. See Fla. R.Crim. P. 3.131(a). Bond can then be denied. In this case, although the transcript from the hearing confirms that the State presented evidence and argued “proof [of guilt] is evident or the presumption great,” the trial court failed to state either orally or in writing that it was making such a finding in denying bond. See State v. Arthur, 390 So.2d 717, 719 (Fla.1980).

Alternatively, rule 3.131(a) further allows continued detention where the trial court determines that “there are no conditions of release that can protect the community of risk of harm to persons,” if bond is granted. In this case, aside from the trial court expressing a concern for the safety of the victim upon denying bond, there was no further discussion or determination that no conditions of release existed to protect her.

Based on these deficiencies, the petition for writ of habeas corpus is granted to the extent that the trial court upon remand shall either promptly set a reasonable bond or make the requisite findings in support of denial of bond.

PETITION GRANTED, REMANDED WITH INSTRUCTIONS.

MONACO, TORPY and COHEN, J.J., concur.


author: WALLACE, Judge.

text:
    Samuel J. ANDERSON, a minor, by and through Allison Anderson, as mother and natural guardian of Samuel J. Anderson; Timothy Anderson, as father and natural guardian of Samuel J. Anderson; Allison Anderson, individually; and Timothy Anderson, individually, Petitioners, v. HELEN ELLIS MEMORIAL HOSPITAL FOUNDATION, INC.; Holly Maria Bauer, R.N.; West Coast Medical Group, Inc.; Christine Hilderbrandt, R.N.; and Tree of Life Midwifery Service, Respondents.
    No. 2D11-368.
    District Court of Appeal of Florida, Second District.
    Aug. 19, 2011.

      Rebecca Bowen Creed of Creed & Gow-dy, P.A., Jacksonville, and James W. Gus-tafson, Jr., of Searcy Denney Scarola Barnhart & Shipley, P.A., Tallahassee, for Petitioners.
    Thomas L. Schieffelin and Christopher J. Steinhaus of Hill, Adams, Hall & Schieffelin, P.A., for Respondents Tarpon Springs Hospital Foundation, Inc., d/b/a Helen Ellis Memorial Hospital Foundation, Inc.; Holly Maria Bauer, R.N.; and West Coast Medical Group, Inc.
    No appearance for Respondents Christine Hilderbrandt, R.N., and Tree of Life Midwifery Service.
   WALLACE, Judge.

Allison Anderson and Timothy Anderson seek review by certiorari of the circuit court’s nonfinal order denying their motion to lift the abatement of their civil action against Helen Ellis Memorial Hospital Foundation, Inc. (the Hospital), pending a determination of the available benefits under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). Because the circuit court’s order improperly deprives the Andersons of their right to elect and to pursue their civil remedy, we grant the petition and quash the circuit court’s order.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The Andersons filed a civil action against the Hospital; Christine Hilder-brandt, R.N. (Nurse Hilderbrandt); and others after their child, Samuel Anderson, suffered severe, birth-related, neurological injuries. The circuit court abated the civil action by stipulated order, pending an administrative determination of whether the Andersons had a compensable claim under the Plan.

The administrative law judge (the ALJ) bifurcated the administrative proceeding, first addressing whether the Andersons’ claim was compensable and whether the Hospital and other participating physicians had complied with the notice provisions of the Plan. Thus the ALJ left the determination of the amount of an award, if any, for a separate proceeding. The ALJ found that the Andersons’ claim was compensa-ble under the Plan but that the Hospital failed to provide the requisite notice under the Plan and that Nurse Hilderbrandt was not a “participating physician” under the Plan. In an appeal from the ALJ’s final order, this court issued an opinion affirming the ALJ’s determination that the Hospital had not given the requisite notice under the Plan and reversing the ALJ’s determination that Nurse Hilderbrandt was not a participating physician under the Plan. Tarpon Spnngs Hosp. Found., Inc. v. Anderson, 34 So.3d 742 (Fla. 2d DCA 2010).

On remand, the Andersons filed in the administrative proceeding their notice of rejection of any benefits under the Plan. Then, on September 9, 2010, the Andersons filed a motion to lift abatement in the circuit court so that they could proceed with their civil action against the Hospital. Nurse Hilderbrandt also sought to enforce in the circuit court the tort immunity available to her under the Plan.

The Hospital opposed the motion to lift abatement, urging the circuit court to continue the abatement until the ALJ determined the amount of compensation available to the Andersons. According to the Hospital, the determination of the amount of available compensation was necessary so that the Andersons could make an informed choice about whether they should reject the benefits available under the Plan and proceed with their civil action. The Hospital argued that the circuit court had the ultimate responsibility of determining what was in the child’s best interests and that there could “be no resolution of this matter in Circuit Court without court approval.” The Hospital argued further that a determination about the child’s best interests “cannot be made without determining the amount of compensation [the Plan] will provide pursuant to Fla. Stat. § 766.31 [ (2004) ] (‘a bird in the hand’) versus pursuing a civil suit against [the Hospital] in Circuit Court with all its contingencies and uncertainty.”

Following a hearing, the circuit court entered an order denying the Andersons’ motion to lift abatement. The order does not explain the circuit court’s rationale for denying the motion. Instead, the order simply states that the circuit court, having taken “the matter under advisement” and “having now thoroughly acquainted itself with the facts and legal issues involved and being otherwise advised in the premises, it is thereupon [ordered and adjudged] that the Plaintiffs’ Motion to Lift Abatement is hereby [denied].” The circuit court entered a separate order granting Nurse Hil-derbrandt’s motion to enforce tort immunity-

On January 21, 2011, the ALJ entered an amendment to the final order on remand from this court’s opinion in the prior appeal. The amendment recognized that the Andersons’ claim was compensable under the Plan, that Nurse Hilderbrandt was a participating physician under the Plan, and that the Hospital had failed to comply with the notice provisions of the Plan. The amendment concluded by stating that the Andersons “having heretofore filed a Notice of Rejection of NICA Benefits, no further proceedings before the Division of Administrative Hearings are necessary, and the file of the Division of Administrative Hearings is hereby closed.”

The Hospital filed a motion for reconsideration of the amendment to the final order, pointing out that the circuit court had agreed that lifting the abatement of the civil action was premature pending a determination of the available compensation under the Plan. On February 23, 2011, the ALJ entered an order denying the Hospital’s motion for reconsideration. In its order, the ALJ stated that the Hospital lacked standing to request a proceeding to determine the Andersons’ available benefits under the Plan “because all issues of compensability are to be resolved as between [the Andersons] and NICA, and [the Andersons] have already formally rejected NICA benefits.” The ALJ noted that none of the parties had taken an appeal from the amended final order and denied the Hospital’s motion with prejudice.

II. THE STANDARD OF REVIEW

In this proceeding, the Andersons seek certiorari review of the circuit court’s order denying their motion to lift abatement. We note the applicable standard of review:

Before a district court can grant relief from an erroneous interlocutory order, a petitioner must establish three elements: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Fassy [v. Crowley], 884 So.2d [359,] 363 [(Fla. 2d DCA 2004)] (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). The last two elements are jurisdictional and must be analyzed before the court may even consider the first element. Id.

Lakeland Reg’l Med. Ctr., Inc. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006).

III. ABATEMENT AS IRREPARABLE HARM

If the circuit court departed from the essential requirements of the law in denying the Andersons’ motion to lift abatement, then its order results in irreparable harm entitling them to certiorari review. “An order of abatement is properly reviewable by writ of certiorari, because there is no adequate remedy for the delay caused by abatement after final judgment.” Britamco Underwriters, Inc. v. Cent. Jersey Invs., Inc., 632 So.2d 138, 139 (Fla. 4th DCA 1994); see also Relinger v. Fox, 55 So.3d 638, 639-40 (Fla. 2d DCA 2011) (citing Britamco for the foregoing proposition); Rowell v. H.G. Smith, 342 So.2d 149, 149 (Fla. 1st DCA 1977) (noting same). “A trial court has broad discretion to grant a motion for stay, but certiorari is available as a remedy if the delay in proceedings constitutes a departure from the essential requirements of [the] law causing material injury that cannot be remedied on direct appeal.” Shoemaker v. State Farm Mut. Auto. Ins. Co., 890 So.2d 1195, 1197 (Fla. 5th DCA 2005). Accordingly, we turn to the merits of the Andersons’ petition.

IV. DEPARTURE FROM THE ESSENTIAL REQUIREMENTS OF THE LAW

The Andersons argue that the circuit court’s order departs from the essential requirements of the law in three ways. First, the order deprives them of their statutory right to reject benefits under the Plan and to litigate their medical negligence claim against the Hospital. Second, the order denies them their constitutional right of access to courts. Third, the order interferes with their constitutional right of privacy. The Andersons’ first two points are closely related, and we consider them together below. Based on our disposition of the Andersons’ first two arguments, we need not consider their third argument.

We conclude that the statutory provisions composing the Plan do not require the ALJ to determine the amount of compensation available before the Andersons can reject their benefits under the Plan and elect to proceed with a civil action against the Hospital. To phrase our conclusion in terms of the Hospital’s suggested analogy, the Andersons need not stop to weigh the proverbial bird in their hands before they release it to pursue multiple birds in the bush.

Section 766.304 provides the ALJ with exclusive jurisdiction to determine whether a claim is compensable under the Plan. In making that determination, section 766.309(1) requires the ALJ to make the following findings:

(a) Whether the injury claimed is a birth-related neurological injury....
(b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital....
(c) How much compensation, if any, is awardable pursuant to s. 766.31.

In addition, the ALJ has exclusive jurisdiction to determine whether the participating physicians complied with the notice provisions of the Plan. See Weinstock v. Houvardas, 924 So.2d 982, 985 (Fla. 2d DCA 2006) (holding “that under the 2003 Act, the ALJ has exclusive jurisdiction to determine whether notice of a health provider’s participation in NICA was properly given in accordance with section 766.316”).

We note that section 766.304 provides that “[n]o civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge.” However, the Plan’s provisions also permit the ALJ to bifurcate the proceedings. Section 766.309(4) provides as follows:

If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing com-pensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31.

(Emphasis added.) Thus the authorization in section 766.309(4) for the bifurcation of the proceedings suggests that the ALJ is not required to make a determination of the amount of an award unless and until such a determination becomes necessary.

The Hospital argues that section 766.304 requires the ALJ to make the necessary determinations under section 766.309, including the amount of any award, before the claimant may proceed with a civil action. To be sure, section 766.309(1)(c) directs the ALJ to determine the amount of compensation awardable. Nevertheless, section 766.309(4) allows the ALJ to bifurcate the administrative proceedings to make an initial determination of compensability and notice before determining the amount of any award. Thus the determination of the amount of an award becomes unnecessary if the claimant decides to reject any benefits under the Plan after the compensability and notice issues have been determined. As we noted in All Children’s Hospital, Inc. v. Department of Administrative Hearings, 863 So.2d 450, 456 (Fla. 2d DCA 2004), quashed on other grounds by Florida Birthr-Related Neurological Injury Compensation Ass’n v. Florida Division of Administrative Hearings, 948 So.2d 705 (Fla.2007):

[Wjhere the potential claimant wishes to pursue tort remedies and to forgo any compensation from the plan, the task of the ALJ is limited to determining whether the injuries were compensable under section 766.309(1).... [Wjhere the claimant seeks compensation from the plan, once an injury is determined to be compensable, the ALJ must go on to determine the amount of compensation that is awardable. See §§ 766.309(1)(c), 31.

Thus we agree with the Andersons’ argument that section 766.309(4) allows the ALJ to decline as unnecessary a determination of the amount of compensation awardable if the claimant decides to reject all benefits under the Plan after a determination of compensability and notice.

Here, the ALJ has determined that the Andersons’ claim is compensable and that the Hospital does not have a right to assert the exclusivity of remedy provision of the Plan because it failed to give the requisite notice. For this reason, the Andersons have the right to elect their remedy and to accept compensation under the Plan or to pursue their civil claim against the Hospital. See Fla. Birth-Related Neurological Injury Comp. Ass’n v. Dep’t of Admin. Hearings, 29 So.3d 992, 999 (Fla.2010) (holding that where one participating physician and/or the hospital gave notice and another did not, “the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA”). The effect of the circuit court’s order is to require the Andersons to satisfy an unauthorized condition precedent to their civil action. It follows that the order improperly deprives the Andersons of — or at least delays the exercise of — their right to reject benefits under the Plan and to litigate their medical negligence claim in the circuit court. See Relinger, 55 So.3d at 640 (“The courts do not favor abatement, and ‘the party asserting it must clearly show that he is within the reason for its enforcement.’ ” (quoting Moresca v. Allstate Ins. Co., 231 So.2d 283, 285 (Fla. 4th DCA 1970))). Because the statutory provisions of the Plan do not mandate a determination of the amount of compensation if the claimant elects to reject compensation under the Plan and to pursue a civil claim, the circuit court’s order departs from the essential requirements of the law by refusing to lift the abatement of the pending civil action.

The Hospital insists that a determination of the amount of compensation awardable is necessary for the Andersons to evaluate whether to accept compensation under the Plan or to reject compensation and pursue their civil claim against the Hospital. But the ALJ has already determined that the Hospital is not entitled to assert the exclusivity of remedy provision of the Plan under section 766.303 because it failed to provide the requisite notice under section 766.316. It follows that the Hospital lacks standing to seek an additional determination by the ALJ on behalf of the Andersons. See White v. Fla. Birth Related Neurological, 655 So.2d 1292, 1296-97 (Fla. 5th DCA 1995) (holding that participating physicians under the Plan had “no authority or standing to maintain ... claims for compensation” on behalf of infant suffering birth-related neurological injuries; the election of remedies is in “the exclusive province of the infant’s legal representative”); cf. Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So.2d 578, 581 (Fla. 2d DCA 2003) (holding that a law firm could not assert its codefendant’s bankruptcy as grounds to stay civil proceedings against the law firm and its codefendant when the plaintiffs had obtained relief from the bankruptcy stay to liquidate their claims against the codefendant and the codefendant was not seeking the protection of the stay).

Moreover, the Andersons can evaluate whether they wish to accept compensation under the Plan or to pursue a civil claim against the Hospital based upon the advice of their counsel. They have elected to reject compensation under the Plan and to pursue their civil remedy. If the Andersons needed information about the benefits available under the Plan to make their decision, then they could have sought such a determination from the ALJ before rejecting benefits under the Plan. Because the Andersons have already decided not to accept any benefits under the Plan, the determination of the amount of available benefits under the Plan would not have any impact on the pending civil action. See Rowell, 342 So.2d at 150 (holding that the abatement of an action pending resolution of another action constituted a departure from the essential requirements of the law when the petitioner was “not a party to the action on which the stay of this case [was] predicated; disposition of that ease evidently [would] be further delayed by appellate proceedings; and there [was] no clear likelihood that this case [would] be controlled by the re-’ suits of the other ” (emphasis added)). Finally, to compel the Andersons at this point to seek a determination of the amount of the benefits available under the Plan before proceeding with the civil action would be an obvious waste of scarce judicial resources.

For the foregoing reasons, we grant the Andersons’ petition, quash the circuit court’s order denying their motion to lift abatement, and remand this case for further proceedings.

Petition granted, order quashed, and case remanded for further proceedings.

WHATLEY and VILLANTI, JJ., Concur.

      . §§ 766.301-.316, Fla. Stat. (2004) (providing for "compensation, on a no-fault basis, for a limited class of catastrophic[, birth-related neurological] injuries” and establishing "the Florida Birth-Related Neurological Injury Compensation Association” (NICA) to administer the Plan).

      . Effective May 2, 2006, the legislature amended section 766.309(1) to add subsection (d), which specifically provides that the AU shall determine “[w]hether, if raised by the claimant or other party, the factual determinations regarding the notice requirements in s. 766.316 are satisfied. The [AL3] has the exclusive jurisdiction to make these factual determinations.” Ch. 06-8, §§ 1, 4, at 194-95, Laws of Fla.

      . The initial determination of compensability and notice results in the entry of an appeal-able order.


author: PALMER, J.

text:
    Rajendra JOSHI, Appellant, v. Raksha JOSHI, Appellee.
    No. 5D09-2128.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    Leslie Thomas of Longwell & Gentle, P.A., Orlando, for Appellant.
    Neva M. Kelaher, Winter Park, for Ap-pellee.
   PALMER, J.

Rajendra Joshi (husband) appeals the trial court’s final dissolution judgment. We affirm in all aspects except one.

The husband argues that the trial court erred in finding that he took for himself an $1,800.00 stimulus check distributed to the marital household as part of the 2008 Economic Stimulus Program. We agree.

The record demonstrates that Raksha Joshi (wife) testified that she never received a check from the Economic Stimulus Program. Thus, the record contains no support for the conclusion that a stimulus check was ever received. Because there is no evidence to support the court’s assignment of an $1,800.00 value to that check, the trial court abused its discretion by allocating the value thereof to the husband’s equitable distribution. Accordingly, we remand this case to the trial court for removal of the $1,800.00 stimulus check from the equitable distribution scheme, and for any adjustments necessary in the equitable distribution scheme as a result of that deletion.

AFFIRMED in part; REVERSED in part; and REMANDED.

MONACO and JACOBUS, JJ., concur.


text:
    Douglas N. BURNETT, Appellant, v. Jenny R. BURNETT, Appellee.
    No. 5D10-2160.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, and Carol A. Caldwell, St. Augustine, for Appellant.
    Samuel S. Jacobson and Stephanie Suss-man Eubanks of Bledsoe, Jacobsen, Schmidt, Wright, Lang & Wilkinson, Jacksonville, and Judith G. Shine of Miller, Shine & Bryan, St. Augustine, for Appel-lee.
   PER CURIAM.

Appellant challenges the orders setting temporary support, possession of the marital residence, and temporary attorney’s fees. We find no error in the imputation of income to Appellant in the amount of $12,786 per month. However, the court erroneously ordered temporary support payments in excess of the imputed income. On remand, the trial court is directed to address all of the support orders with due consideration to Appellant’s ability to pay. See Squindo v. Osuna-Squindo, 943 So.2d 282, 234 (Fla. 3d DCA 2006) (finding alimony award excessive where it consumed 70% of husband’s net income); Ziajka v. Knight, 767 So.2d 572, 573 (Fla. 5th DCA 2000) (reversing all awards of support, including award of attorney’s fees, for reconsideration of entire distribution scheme where financial obligations imposed exceeded husband’s ability to pay).

REVERSED AND REMANDED.

TORPY, LAWSON and COHEN, JJ„ concur.