author: CONNER, J.

text:
    John Kevin HOLT, Appellant, v. STATE of Florida, Appellee:
    No. 4D10-2506.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    See also 33 So.3d 811.
    Carey Haughwout, Public Defender, and Tom Wm. Odom, Assistant Public Defender, West Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

John Kevin Holt (Holt) appeals the denial of his motion to correct illegal sentences filed under Florida Rule of Criminal Procedure 3.800(a). After a jury trial, Holt was convicted and sentenced on four felony sexual offenses involving a child victim. On initial appeal, this court sent the case back for resentencing on all four counts. See Holt v. State, 38 So.3d 811 (Fla. 4th DCA 2010). After the resentencing, Holt filed the motion to correct illegal sentences as to three counts, but on appeal Holt addresses counts 1 and 2 only. The court did not enter an order on the motion, thus the motion is deemed denied. The state agrees on appeal there is error in the sentences for counts 1 and 2.

Count 1 charged Holt with sexual battery on a child under twelve years of age by a person eighteen years of age or older in violation of section 794.011(2), Florida Statutes (Supp.1992). The amended information alleged the offense occurred between October 26, 1992, and October 25, 2001. On resentencing, the court imposed a sentence of imprisonment for a term of “natural life.” In 1992, the crime was classified as a “capital felony” punishable by life imprisonment with a minimum mandatory sentence of twenty-five years before becoming eligible for parole. Thus, a sentence to a term of “natural life” does not conform to the statutory sentence.

Count 2 charged Holt with a lewd act on a child under sixteen years of age in violation of section 794.011(2), Florida Statutes. The amended information alleged the offense occurred between October 26, 1992, and October 1, 1999. The jury was not asked by its verdict to decide when the offense occurred. The time period of the offense straddles more than one sentencing guideline. Where the time period for the offense straddles different sentencing guidelines, the defendant is entitled to the benefit of the most lenient sentencing guideline. Scott v. State, 958 So.2d 596 (Fla. 4th DCA 2007); Glynn v. State, 868 So.2d 1280 (Fla. 4th DCA 2004). In this situation, the most lenient sentencing guideline is the 1992 guideline. The fifteen-year sentence imposed at resentencing for count 2 exceeds the 1992 guideline. As the trial court gave no reasons for an upward departure sentence, on remand for further resentencing the trial court must impose a sentence within the guideline. Brown v. State, 593 So.2d 1042 (Fla.1992); Pope v. State, 561 So.2d 554 (Fla.1990).

We therefore reverse this case for re-sentencing on counts 1 and 2 in conformity with this opinion.

TAYLOR and MAY, JJ., concur.


source: Caselaw Access Project

author: WARNER, J.

license: Public Domain

text:
    TRIBECA AESTHETIC MEDICAL SOLUTIONS, LLC, Appellant, v. EDGE PILATES CORPORATION and Bayou Meto, Inc., Appellees.
    No. 4D10-2630.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Deborah A. Green of The Green Law Firm, PL, Plantation, for appellant.
    Mark Perlman of Mark Perlman, P.A., Hallandale Beach, for appellee Edge Pilates.
    John F. Phillips of John F. Phillips, P.A., Fort Lauderdale, for appellee Bayou Meto, Inc.
   WARNER, J.

Tribeca Aesthetic Medical Solutions, the Subtenant of a lease with the Tenant, Edge Pilates, appeals from an order granting intervention to the Landlord, Bayou Meto, ordering disbursement to the Landlord of rent paid into the registry of the court, and requiring payment of future rentals to the Landlord. Because the Subtenant disputed the amount owed and deposited the rents into the court registry, the Landlord’s claim must be subordinate to the main action, which claimed that the rental payment included amounts for advertising to which the Landlord would not be entitled. We reverse the order.

Bayou Meto, Inc. (Landlord) leased certain property to Edge Pilates Corporation (Tenant) under a Master Lease. In turn, the Tenant subleased a portion of the property to Tribeca Aesthetic Medical Solutions (Subtenant). The Tenant and Subtenant both operated businesses catering to women. The Tenant agreed to include the Subtenant in its advertising and other marketing, and the sublease provided that “[t]he rent shall include reference of Subtenant in all of [Tenant’s advertising],” but it did not contain a breakdown of how much rent was allocable to advertising.

Three years later Pilates moved out of the premises and sublet to a supply company. It ceased any advertising or marketing involving Subtenant. Subtenant then notified Tenant that it would no longer pay for the marketing services that it had not been receiving and would pay only $1,500 a month in rent, what it asserted was fair rental value out of the $7,174 due. Tenant filed suit for eviction, and Subtenant answered and counterclaimed for declaratory judgment regarding the rent payment as well as damages. Subtenant began paying the amount due into the registry of the court.

The Landlord moved to intervene in the proceedings and sought disbursement to it of the entire amount paid into the registry. Subtenant objected, as an intervenor’s rights should be subordinate to the main proceedings. See Fla. R. Civ. P. 1.230. The Landlord pointed to the discretion afforded to the court in intervention, as well as the provision of the sublease which allowed the Subtenant to pay rent directly to the Landlord when the Landlord gives notice. However, the Landlord had not declared the Tenant in default, even though the Tenant had not paid rent to the Landlord. During the hearing the Landlord gave notice to the Subtenant of its election to have the Subtenant pay rent directly to itself. The court ruled that the Landlord was entitled to $10,000 out of the registry of the court, and the Subtenant was to pay to the Landlord $5,000 each month thereafter, with the balance of each month’s rent to be paid into the registry of the court. The Subtenant appeals.

Section 83.232(1), Florida Statutes, requires a tenant to pay into the court registry the amount of unpaid rent together with rent accruing during the pendency of the suit. Failure to do so is deemed an “absolute waiver of the tenant’s defenses,” and the landlord is entitled to an immediate default. § 83.232(5), Fla. Stat. As Subtenant asserted numerous defenses and a counterclaim regarding the amount of rent, it had no choice but to deposit the rents in the court registry. Having done so, it is entitled to pursue its claims, including its claim that the rental amount included advertising and marketing which should be deducted from the stated rent now that Tenant has moved from the premises.

Even though the Landlord had not declared a default nor moved to evict the Tenant, it sought to intervene to obtain the rentals the Subtenant was to pay to the Tenant, because the Tenant was not paying its rent. The Subtenant does not contest the trial court’s granting intervention to the Landlord. It maintains, however, that the court abused its discretion in allowing disbursement of the rentals paid by the Subtenant until the Subtenant’s claims against the Tenant regarding the amounts paid for marketing have been determined, because its rights should be subordinate to the main action, namely the determination of the amount of rent due. See Fla. R. Civ. P. 1.230 (stating that “intervention shall be in subordination to, and in recognition of, the propriety of the main proceeding”).

In the recent case of First States Investors 3300, LLC v. Pheil, 52 So.3d 845 (Fla. 2d DCA 2011), a lessee deposited rent in the registry of the court, while it sought a declaratory judgment claiming that the rental escalation clauses in the lease were ambiguous, and it was in doubt as to the amount of rent it owed. The trial court ordered that the rental payments could be disbursed to the landlord. The appellate court held that the lessee had paid too much into the registry, because the base amount of rent was not in dispute. Therefore, the lessor was entitled to receive the base rent. On the other hand, the court also reversed the order disbursing all the rent to the landlord, because no determination of the amount of rent due under the escalation clauses had been made. The court reasoned:

First States was not entitled to deposit all of the rent monies into the court registry because only the escalation amounts were the subject of the litigation. But neither were the appellees entitled to receive all of the rent monies which had been deposited. More specifically, the appellees were not entitled to receive the portion of the monies which constituted the escalation amounts. This is because where
a party seeking affirmative relief has paid money into [the] court upon condition that the party paying received something in return therefor[ ] or that a contingency happen, it cannot be delivered to the adversary party until the condition upon which it was paid has been performed!] or the contingency occurs.

Id. at 848-49 (quoting Masser v. London Operating Co., 106 Fla. 474, 145 So. 72, 76 (1932)).

Similarly, in this case the Subtenant deposited the full amount of the rent into the court, at the same time claiming that some of the payment was for advertising and marketing expenses. It sought a declaration of the amount of rent due, and it alleged that the amount due would be $2,000 per month. Without taking any evidence, the trial court permitted disbursement of substantially more than that sum and ordered the Subtenant to pay to the Landlord $5,000 per month. Thus, the court ordered the Landlord to receive a significant portion of the contested rental payment. We agree with Subtenant that the court abused its discretion, particularly where no evidentiary hearing was held.

The Landlord contends, however, that the sublease allowed it to collect the rent from the Subtenant upon notice to the Subtenant, and the Subtenant could pay the rent to the Landlord without remaining liable to the Tenant under the sublease. We do not find that this provision compels the payment of all rents to the Landlord where there is a bona fide dispute between the Tenant and the Subtenant over the amount of rent. There is no contractual privity between the Landlord and the Subtenant. Therefore, any right the Landlord may have to disbursement of the proceeds would be subordinate to the contractual rights of the parties. Pursuant to section 83.282(1), the Subtenant had the right to deposit the monies into the court registry and maintain its claims against the Tenant. The Landlord’s standing in this case, being subordinate to the Tenant, assumes no greater rights than the Tenant.

While either the Tenant (the actual landlord of the subtenant) or the Landlord might be able to obtain disbursement of some of the proceeds pursuant to section 88.232(1), which permits the Landlord to apply to the court for disbursement of some of the rents where the “actual danger of loss of the premises or other hardship resulting from the loss of rental income from the premises” is occurring, the parties did not plead or prove this at the hearing. In fact, this statutory right was not mentioned. Therefore, our reversal is without prejudice to requesting and proving the necessity of relief pursuant to the statute.

GROSS, C.J., and TAYLOR, J., concur.

      . Because the order determines the right to immediate possession of property, we have jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See Greene v. Borsky, 961 So.2d 1057 (Fla. 4th DCA 2007) (an order determining the right to immediate possession of money is an appeal-able order under this rule). See also Fla. Discount Props., Inc. v. Windermere Condo., Inc., 763 So.2d 1084 (Fla. 4th DCA 1999).

      . Although this court struck the actual written notice, filed after the hearing, the transcript reveals that the notice was delivered during the hearing. (Tr. 28)


author: PER CURIAM.

text:
    Lloyd BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-3965, 4D10-3966.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.
    Edward Hoeg, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We sua sponte consolidate appeals 4D10-3965 and 4D10-3966, and we affirm the denial of both motions for relief pursuant to Florida Rule of Criminal Procedure 3.850. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010). This decision expressly and directly conflicts with Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011) (certifying questions and conflict with Flores).

Affirmed.

CIKLIN, GERBER and LEVINE, JJ., concur.


author: PEGG, ROBERT L., Associate Judge.

text:
    Nasra ARAFAT, Appellant, v. U-HAUL CENTER MARGATE and its corporation, and National Fire Insurance Company c/o Republic Western Insurance Company and its corporation, Appellees.
    No. 4D10-1179.
    District Court of Appeal of Florida, Fourth District.
    June 22, 2011.

      Nasra Arafat, Coral Springs, pro se.
    No appearance for appellees.
   PEGG, ROBERT L., Associate Judge.

Nasra M. Arafat appeals an order of the circuit court, issued in its appellate capacity, dismissing as untimely an appeal from a county court judgment. This court, as well as others, has held that a petition for certiorari is the proper vehicle to challenge an order of the circuit court dismissing an appeal as untimely. Johnson v. Fulton, 950 So.2d 493 (Fla. 4th DCA 2007). This court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(2)(B) to grant certiorari review of final orders of circuit courts acting in their appellate capacity.

Arafat filed a statement of claim for items removed from her storage facility. On May 21, 2009, the county court entered a judgment in favor of defendants U-Haul Center Margate and National Fire Insurance Company, and against Arafat. Arafat filed a motion for rehearing containing a certificate of service date of June 1, 2009. On June 10, 2009, the motion for rehearing was denied. In that same order, the trial judge ruled that the denial of the rehearing motion would not take effect until September 1, 2009, because the plaintiff had filed a notice of unavailability between June 1, 2009 and August 25, 2009.

On September 24, 2009, less than thirty days from the date the order denying rehearing became effective, Arafat filed a notice of appeal in the circuit court. Defendants/appellees moved to dismiss the appeal, arguing that the motion for rehearing was not timely served and failed to toll rendition of the May 21, 2009 final judgment. Appellees asserted that, since the county court judgment had been entered following a non-jury trial, Florida Rule of Civil Procedure 1.530 mandates that a motion for rehearing be served within ten days of the filing of the judgment. Although the certificate of service bears a date of June 1, 2009, the motion was not actually served until June 3, 2009. Arafat’s response was that Rule 1.530 did not apply to small claims cases, and the timeliness of the motion for rehearing was determined by its filing date and not the service date.

The circuit court granted the motion to dismiss, finding that the motion for rehearing was not timely served and the appeal from the final judgment was untimely. Arafat then filed a timely notice of appeal to this court directed to the dismissal order of the circuit court.

Arafat is entitled to relief from the circuit court order of dismissal only if she can demonstrate that the circuit court departed from the essential requirements of law. Altman v. State, 41 So.3d 1030, 1031 (Fla. 2d DCA 2010). District Courts of Appeal have granted petitions for relief where the petitioner establishes a circuit court erred in dismissing an appeal as untimely. Gibson v. Gruner, 715 So.2d 379 (Fla. 4th DCA 1998).

The Florida Small Claims Rules apply to civil actions in county court where the damages do not exceed $5,000. See Fla. Sm. Cl. R. 7.010(b). These rules do not incorporate all of the Florida Rules of Civil Procedure. The only rules incorporated are 1.090, 1.190, 1.210, 1.260, 1.410, and 1.560; other rules may apply if ordered by the court. See Fla. Sm. Cl. R. 7.020(a), (c). The Florida Small Claims Rules do not expressly provide for a motion for rehearing. They do, however, permit the filing of a motion for new trial under Florida Small Claims Rule 7.180. This motion must be filed within ten days.

There is no doubt that this originated as a small claims case. The demand in the complaint was for $5,000. The docket printout from the circuit court indicates it is a small claims case. The record before us indicates the motion for rehearing was timely filed. Florida Rule of Civil Procedure 1.530, which provides that a motion for new trial or rehearing must be served within ten days, is inapplicable to this case.

The final issue to be resolved is whether Arafat’s post-judgment motion filed in small claims court served to toll the rendition of the judgment and the subsequent taking of an appeal from that judgment. Florida Small Claims Rule 7.230 provides that appeals from Small Claims court shall be governed by the Florida Rules of Appellate Procedure. In addition, Florida Rule of Appellate Procedure 9.010 provides that the rules of appellate procedure apply to appeals to circuit court. Florida Rule of Appellate Procedure 9.020(h) states that where an authorized and timely motion for new trial or rehearing is filed, the rendition of the order of the trial court is tolled until disposition of the motion.

Arafat’s post-trial motion was titled as a motion for rehearing pursuant to Florida Rule of Civil Procedure 1.530. While the contents of the motion for rehearing are at times rambling, and clearly authored by someone with little or no legal training, there is no doubt that the relief she is seeking is a new trial. We elect to treat Arafat’s motion for rehearing as an authorized and timely-filed motion for new trial permitted under the Florida Small Claims Rules of Court.

Accordingly, we treat the appeal as a petition for writ of certiorari, grant the petition, quash the order dismissing the appeal, and remand to the circuit court with directions that the appeal be reinstated and decided on the merits.

Petition Granted.

TAYLOR and GERBER, JJ., concur.


author: MAY, J.

text:
    Brian HOOKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4729.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Jeremy J. Kroll of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

A sad tale of the murder of a homeless person sets the stage for the issues in this appeal. The defendant appeals his conviction on one count of second degree murder and two counts of attempted second degree murder, which resulted in concurrent sentences of thirty years’ imprisonment. Several issues were raised, but none warrant a reversal. We write to discuss the trial court’s denial of the defendant’s motion to' change venue due to pre-trial publicity. We affirm.

Four young men congregated for an evening of alcohol, marijuana, and Xanax, which culminated in tragedy. They decided to take a trip to the beach, and a couple of them decided they wanted to “beat up a bum.” On this first trip, the defendant and co-defendant attacked their first victim, who was sitting on a bench at the downtown campus of FAU.

A surveillance video captured the attack as the first victim was beaten by two males with baseball bats at 1:06 a.m. The victim suffered a skull fracture, a facial fracture, a laceration and swelling to his forehead, some tenderness in his cervical spine, and a deformity of his left forearm wrist area.

The four then went to a park and attacked their second victim. During this attack, the defendant and co-defendant beat the victim with bats and shot him with a paintball gun. This victim did not survive the attack. Afterwards, they returned to the house of one of the attackers, at which point one of the young men departed and returned home for the evening. The remaining three ventured out again in the defendant’s truck.

This time, the three young men came across another homeless man near a church, who was sleeping on the ground under a blanket. All three young men attacked the third victim, and ran off when he stood up and started yelling. This victim sustained head injuries and a shattered arm.

The grand jury indicted the defendant with one count of first degree murder and two counts of attempted first degree murder. The defendant entered a not guilty plea. Subsequently, the defendant moved for a change of venue, which was accompanied by three affidavits and eighty-six media reports exhibiting the intense media coverage received by this case. In response to this media coverage, the trial court entered orders precluding extrajudicial comment. The amended order noted: “The instant case has already garnered a great amount of national and local coverage, and this Court believes that some extrajudicial comments may very well have already been prejudicial to the respective [parties’] rights.”

The trial court' ordered the pre-screen-ing of four hundred jurors, sealed the names and addresses of the jurors, and prohibited the filming or photographing of their faces. However, the trial court did allow the media to record their audible responses.

During the first round of jury selection, defense counsel advised the court that all the major newscasts had shown the surveillance video of the first incident the night before. Certain jurors confirmed being exposed to the news coverage, while others possessed copies of the local newspaper containing an article about the case. Of those jurors who had read the article, some had just read the article and others had discussed it as well.

The trial court acknowledged the publicity generated by the case, and commented:

[T]he blogs are the most disconcerting thing for the Court. People have very, very strong opinions once they have seen this video. I mean, it’s really disturbing, actually. And we saw it yesterday with people coming in that you know, I seen that video and I can’t put that out of my head and we tried our best to — we are trying to find a fair and impartial jury for these defendants here.

And yet, some internet comments and online articles were either sympathetic to the defendants or unsympathetic to the homeless. Still, other comments focused on the defendants’ right to a fair trial.

After pre-screening jurors, the defendant filed a renewed motion for change of venue with supplementary exhibits. The defendant requested to individually voir dire the jurors concerning the pre-trial publicity, and filed a motion for jury sequestration. The court denied the request to sequester the jurors.

The trial court took the motion for change of venue under advisement, noting the 529 jurors examined and the routine showing of the surveillance video. The defendant renewed all of his pre-trial objections and motions, all of which were again denied.

After opening statements, the trial court instructed the jury not to watch the news, read the paper, or talk to anyone about the case. Media coverage continued throughout the trial. During the trial, the third victim gave an interview outside the courthouse, which caused defense counsel to renew the motion for sequestration and move for a mistrial. The trial court questioned each juror individually, but denied the motions.

The trial continued and the defendant once again renewed his motion for sequestration. Counsel cited numerous articles: a biography of one of the victims; an interview with the parents of the deceased victim; and a video featuring a good friend of the deceased victim that appeared on a website with footage of the funeral and the videotape of the incident. The defendant again renewed his motion for change of venue. The trial court denied the motions, noting the jurors’ obvious awareness of the community’s interest since jury selection started due to the “amount of press that’s been in the courtroom.”

After closing arguments, the defendant renewed all motions, which the trial court denied. The jury returned a verdict finding the defendant guilty of second degree murder with a weapon as to Count 1, and guilty of attempted second degree murder with a weapon as to Counts 2 and 3. The trial court sentenced the defendant to concurrent terms of thirty years. From his conviction and sentence, the defendant appeals.

“A motion for change of venue is a matter addressed to the sound discretion of the trial court, and the trial court’s decision will generally be upheld if there is no showing of a palpable abuse of discretion.” Straight v. State, 397 So.2d 903, 906 (Fla.1981). We have the responsibility to independently evaluate the circumstances. Rolling v. State, 695 So.2d 278, 285 (Fla.1997). The defendant has the burden to demonstrate prejudice. Manning v. State, 378 So.2d 274, 276 (Fla.1979).

The defendant argues the denial of his motion for change of venue deprived him of his constitutional right to a fair trial because the general state of mind of the jury venire was infected by the media attention given to the case. The State responds that notwithstanding the media attention, this jury tried the defendant solely upon the evidence. The jury members either had no knowledge of the case or were able to set aside that knowledge and be fair and impartial.

“The test for determining a change of venue is whether the general state of mind of the inhabitants of a community is so infected by knowledge of the incident and accompanying prejudice, bias, and preconceived opinions that jurors could not possibly put these matters out of their minds and try the case solely upon the evidence presented in the courtroom.” McCaskill v. State, 344 So.2d 1276, 1278 (Fla.1977) (quoting Kelley v. State, 212 So.2d 27, 28 (Fla. 2d DCA 1968)).

We start with the basic premise that “pretrial publicity is normal and expected in certain kinds of cases ... and that fact standing alone will not require a change of venue.” Rolling, 695 So.2d at 285. Trial courts must consider a two-pronged analysis: “(1) the extent and nature of any pretrial publicity; and (2) the difficulty encountered in actually selecting a jury.” Id.

In evaluating the first prong, trial courts consider many factors, including: (1) the length of time between the crime and the trial and when the publicity occurred; (2) whether the publicity was factual or inflammatory; (3) whether the publicity was one-sided; (4) the size of the community; and (5) whether the defendant exhausted his peremptory challenges. Id.

Here, the publicity began immediately after the crime when law enforcement released the surveillance video of the first attack to the media to help apprehend the perpetrators. The video was aired numerous times and the attacks received significant publicity up to and throughout the trial. More than two years elapsed between the crimes and the first round of voir dire. Nevertheless, in the initial veni-re, at least eighty-eight jurors admitted to having little or no knowledge about the case and at least eighty-two additional jurors in the second round also knew nothing about the case, including five of the jurors selected.

Second, the majority of coverage focused on the surveillance video of the first attack, which was admitted at trial and published to the jury. Third, the video was factual, even though it was graphic and disturbing. The media coverage alternated between condemning the actions, and, at other times, reminding the community of the defendants’ right to a fair trial.

Fourth, Broward County is the second largest county in the State. This renders the publicity less likely to infect the entire community than it might in a smaller community. Manning, 378 So.2d at 276. Fifth, the defendant exhausted all of his peremptory challenges. When all five factors are considered, the pretrial publicity, while extensive, did not so infect the community that it was impossible to select a jury who would try the case solely on the evidence.

“The second prong of the analysis requires the trial court to examine the extent of difficulty in actually selecting an impartial jury at voir dire.” Rolling, 695 So.2d at 285. We pause a moment to compliment the trial court, who took significant time, exhibited considerable patience, and thoughtfully imposed precautions to ensure the defendant received a fair trial. Hundreds of persons underwent voir dire until the trial court was satisfied that the jurors were impartial and qualified to serve on the jury. While arduous, jury selection was accomplished.

We live in a day and age where news is instantaneous and pervasive. Within minutes, we are alerted to happenings from around the world. Video surveillance is commonplace and exposure of such video in the media is not uncommon. Access to media is available twenty-four hours a day, seven days a week. And the list of commentators expressing their opinions on every aspect of our lives is endless. Virtually no high profile case is immune to vast exposure on the electronic waves of today’s communication devices. We must rely on our justice system and those that toil within it to ensure the protection of our constitutional guarantees. We are confident that this defendant’s rights were protected and that he received a fair trial notwithstanding the pretrial publicity in this case. We find no abuse of discretion and affirm.

Affirmed.

DAMOORGIAN and LEVINE, JJ., concur.

      . These numbers were provided by the State and appear to be accurate.


text:
    Phillip BROWN, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-262, 4D10-263, 4D10-264.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Carey Haughwout, Public Defender, and Jon M. Conway, Assistant Public Defender, West Palm Beach, and Phillip Brown, Clermont, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm, but remand for the trial court to enter a written order of revocation of probation specifying the conditions appellant was found to have violated. See Rey v. State, 904 So.2d 566 (Fla. 4th DCA 2005).

Affirmed; Remanded with Instructions.

WARNER, POLEN and LEVINE, JJ„ concur.


text:
    Sam SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1089.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Osta v. State, 880 So.2d 804 (Fla. 5th DCA 2004); Clark v. State, 510 So.2d 1202 (Fla. 2d DCA 1987)

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


text:
    STATE of Florida, Appellant, v. Michael BELLUSCIO, Appellee.
    No. 4D10-1108.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

We find no error in the trial court’s imposition of a downward departure sentence, because the defendant met his burden of proving the requirements for a downward departure sentence, pursuant to section 921.0026(2)(d), Florida Statutes (2009), and presented unrebutted testimony that the defendant required specialized treatment for mental health disorders unrelated to substance abuse, which was not available at the Department of Corrections.

Affirmed.

STEVENSON, TAYLOR and GERBER, JJ., concur.


author: MAY, C.J.

text:
    CENTRAL SQUARE TARRAGON LLC, a Florida limited liability company, for itself and as assignee of AGU Entertainment Corporation, n/k/a The Tube Media Corp., Appellant, v. GREAT DIVIDE INSURANCE COMPANY, a North Dakota company, Appellee.
    No. 4D09-4795.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      David C. Borucke of Holland & Knight LLP., Tampa, for appellant.
    Kimberly A. Salmon, David J. Salmon, and James S. Curtis of Groelle & Salmon, P.A., Tampa, for appellee.
   On Motion for Rehearing

MAY, C.J.

We deny the appellee’s motion for rehearing, but withdraw our prior opinion and substitute this opinion in its place to more accurately reflect the facts.

This appeal pits “integrity” in the practice of law against an unwarranted game of “gotcha.” The purchaser of property, and assignee of the named insured, appeals a verdict in favor of the insurer rendered after a game of “gotcha.” We reverse.

The named insured sold a twenty-two acre site to the purchaser and assigned its rights to an insurance contract that provided property and casualty insurance — including hurricane and windstorm coverage. The named insured added the purchaser to the liability insurance policy as an additional insured, but not to the property insurance policy.

Subsequently, Hurricane Wilma destroyed the property. Shortly thereafter, the purchaser/assignee submitted a claim to the insurer. The insurer issued a check to the purchaser for $770,981.21. Because the check did not cover the entire claim, the purchaser filed a complaint and amended complaint against the insurer.

The trial court ordered the parties to file a Joint Pretrial Stipulation. That Stipulation begins with a Statement of Facts:

This action concerns a dispute over the amount of damages paid to [the purchaser] for its claim for damages resulting from Hurricane Wilma. [The insurer] has issued payment for what it maintains are the damages resulting from the hurricane, and it contends that it owes no further monies under the policy. It is [the purchaser’s] position that [the insurer’s] payment is insufficient to cover the damages sustained as a result of Hurricane Wilma, and that [the insurer] is in breach of the insurance contract by failing to pay the proper amount of damages.

It also contained a list of nine stipulated facts. Among them, the parties stipulated:

(g) [The assignor] assigned its rights to the insurance proceeds to [the purchaser] on December 28, 2005.
(i) On March 29, 2006 [the insurer] issued a payment to [the purchaser] for $770,981.21 for the damages to The Property caused by Hurricane Wilma.

Finally, the Joint Pretrial Statement contained a Statement of Disputed Issues of Law and Fact which read:

(a) Whether [the insurer] is in breach of the insurance contract.
(b) Whether [the purchaser] is in breach of the insurance contract.
(c) What is the amount of covered damages under the ... insurance contract, if any.

Prior to trial, the insurer filed a motion in limine to exclude evidence concerning its underwriting file. In support of its motion, insurance counsel argued that the insurer had already paid proceeds to the purchaser, pursuant to the assignment, making the only remaining issue whether the payment was sufficient. Insurance counsel made similar representations at other hearings. And, during opening statement, insurance counsel conceded the purchaser’s entitlement to the insurance proceeds.

During its case in chief, the purchaser called witnesses to testify about the purchase of the property, the damage to the property, and the insurer’s underestimation of the damage. The purchaser entered the insurance policy and the tendered check into evidence. It also questioned a witness concerning its entitlement to the insurance proceeds.

At the close of the purchaser’s case, the insurer moved for a directed verdict, arguing that the purchaser had failed to prove the existence of the assignment. The purchaser responded that the assignment had been stipulated to as a part of the joint pre-trial stipulation. In fact, the insurer had already paid the purchaser a large sum of money, leaving the remaining disputed amount to be determined at trial. And, the style of the case even reflected that the purchaser filed suit as assignee.

The trial court denied the motion without prejudice. The insurer then presented a single witness, who also testified about the damage to the property. At the close of the evidence, the insurer renewed its motion for directed verdict, which the court denied. The purchaser again reminded the court that the assignment had been stipulated to by the insurer, and required no proof at trial.

During the charge conference, insurance counsel again raised the lack of evidence of the assignment. Again, the purchaser argued to the court that the assignment was a stipulated fact, and objected to the court’s instruction concerning the assignment. The trial court found the existence of a valid assignment was a jury question, and specifically instructed the jury it was to determine whether the purchaser held a valid assignment of the insurance proceeds.

The verdict form contained a special interrogatory as question one directed to the issue of the assignment. During deliberations the jury asked: “Does marking no ... on Question Number 1 mean the ruling is in favor of [the insurer]?” The trial court provided no additional guidance. The jury then found there was no assignment, thereby ending its deliberations.

The purchaser moved for a new trial. The trial court denied the motion and entered a final judgment for the insurer. The purchaser now appeals.

We review orders on motions for new trial for an abuse of discretion. Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998). We find the trial court abused its discretion in denying the purchaser’s motion for new trial.

The purchaser argues that the joint pretrial stipulation bound the parties and the court, and eliminated the need for certain proof at trial, specifically the need to prove a valid assignment of the insurance proceeds. The insurer responds that notwithstanding the stipulation, the purchaser still had the burden to prove a prima facie case, which required proof of every element of the breach of contract claim, in-eluding the assignment. At the very least, the insurer argues the purchaser should have entered the stipulation into the record.

We begin by reviewing the applicable rules of civil procedure. Florida Rule of Civil Procedure 1.200 provides for ease management and pretrial conferences for the purpose of simplifying issues and limiting the admission of testimony and documents to “avoid unnecessary proof.” Subsection (d) provides “[t]he court shall make an order reciting the action taken at a conference and any stipulations made. The order shall control the subsequent course of the action unless modified to prevent injustice. Fla. R. Civ. P. 1.200(d) (emphasis added).

A stipulation that limits the issues to be tried “amounts to a binding waiver and elimination of all issues not included.” “Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced.” Further, “[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes.”

Broche v. Cohn, 987 So.2d 124, 127 (Fla. 4th DCA 2008) (citations omitted) (emphasis added) (alteration in original).

Here, the purchaser and insurer entered into a joint pretrial stipulation that limited the dispute to the amount to be paid to the purchaser for damages from Hurricane Wilma. The parties stipulated that: (1) the named insured assigned its right to the insurance proceeds to the purchaser; and (2) the insurer tendered payment to the purchaser for the damage. The disputed issues were whether the insurer or the purchaser breached the insurance contract and the amount of damages owed to the purchaser, if any. The assignment was never at issue. In fact, throughout hearings and opening statement, insurance counsel admitted the dispute concerned only the amount of damage — not the purchaser’s entitlement.

When the trial court instructed the jury and provided a verdict form that questioned whether a valid assignment existed, it impermissibly abandoned the stipulation. In doing so, it erred. The court then abused its discretion in not correcting the error on the purchaser’s motion for new trial.

We find the insurer’s reliance on Maxson v. Air Products & Chemicals, Inc., 554 So.2d 1212 (Fla. 1st DCA 1990), ill-founded. There, the First District Court of Appeal discussed the procedure by which stipulated facts can be read to the jury. Id. at 1213-14. While reading a stipulation may be entirely permissible, the First District did not hold that such a reading is required to trigger the binding effect of a stipulation on the parties. A party’s “stipulation waives his or her right to contest the [] failure to introduce any evidence on those stipulations, including a failure to read those stipulations to the jury.” Brown v. State, 940 So.2d 609, 610-11 (Fla. 4th DCA 2006).

Our system of justice depends upon lawyers as officers of the court. Here, insurance counsel abandoned that role and engaged in gamesmanship by failing to honor the stipulation. That conduct deprived the purchaser of a fair trial; justice requires a new trial.

Reversed and remanded for a new trial.

HAZOURI and CIKLIN, JJ., concur.

      . The local rule expressly requires parties to file a Joint Pretrial Stipulation that describes "Any stipulated facts requiring no proof at trial " and a "Statement of disputed issues of law and fact to be tried.” Fla. 17th Jud. Cir., Local R. 9 (emphasis added).

      . The insurer further argues the purchaser should have requested to reopen its case or request a curative instruction. See Kahle v. Prewitt, 673 So.2d 121, 122 (Fla. 4th DCA 1996) ("Implicit in the stipulation was the absence of an issue concerning appellants' security. Once appellants were informed of a deficiency by the trial court, they should have been provided the opportunity to resolve the issue.”). Failing to have done so, the purchaser invited the error. We disagree.


text:
    Abdel ODEH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-994.
    District Court of Appeal of Florida, Fourth District.
    July 18, 2011.

      Jason T. Forman of Jason T. Forman, P.A., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   CONNER, J.

Abdel Odeh appeals his judgment and sentence after a jury found him guilty as charged of attempted first degree murder. On appeal Odeh contends the trial court erred by allowing the jury to hear the investigating officer’s opinion that his claim of self-defense was not legally valid. The opinion was expressed during an interrogation of Odeh and during cross-examination of the officer in front of the jury. Odeh also contends the trial court erred by giving erroneous jury instructions regarding the justifiable use of deadly force. Lastly, Odeh contends that trial counsel rendered ineffective assistance by failing to object to the officer’s opinion statement regarding self-defense and to the improper jury instructions on the justifiable use of deadly force.

The errors asserted on appeal were not preserved. No objection was made to the investigating officer’s opinion on self-defense, and the jury instructions on the justifiable use of deadly force were agreed to by defense counsel. We determine the errors were not fundamental errors. We also determine that the record does not sufficiently support the claim of ineffective assistance of counsel to warrant reversal. Thus, we affirm the judgment and sentence.

Factual Background,

Odeh worked as a clerk in a Star Seven convenience store in Lauderhill with Ronnie Ashkar. The store was located in a high-crime neighborhood, and Ashkar kept a gun in the store. Christopher Morgan entered the store to buy cigarettes. Morgan did not own or have a gun. Morgan, Odeh, and Ashkar gave the jury conflicting versions of the events occurring after Morgan entered the store.

Morgan’s Version of the Incident

Morgan testified that he asked Odeh for a pack of Newport cigarettes and gave him a $5 bill, but Odeh did not give him the cigarettes. When Morgan asked why he was not being served, Odeh gave him a “tree wrap” (a tobacco leaf used for rolling tobacco into a cigarette). Morgan told Odeh he did not want a wrap, he wanted cigarettes. Odeh took the tree wrap back, but he did not return Morgan’s money and began serving another customer. Morgan told Odeh that if he would not serve him, then he should return his money and he would go elsewhere. Odeh threw Morgan’s money back at him; Morgan cursed and took his money. Odeh then told Morgan that he should “get the fuck out of the store.” Odeh and Morgan continued cursing at each other. Odeh threw a candy bar in Morgan’s face, and Morgan then took a box from the counter and threw it at Odeh, hitting him in the front of his body. The two of them continued to pick things up from each side of the counter and throw them at each other. Ashkar told them to stop.

Morgan then thought that Odeh was reaching for a weapon under the counter, so he turned around and walked to the door to leave. When he reached the door, Morgan did not turn back or say anything to Odeh, but went outside to the parking lot. Emphasizing that he did not own a gun, Morgan told the jury he did not tell Odeh that he was going to get a gun to shoot him.

Morgan testified that he walked straight to his car and did not look back. Consequently, he did not see Odeh walk out of the store behind him. When he reached his car, Morgan lifted his shirt to get his keys out of his pocket. He heard only one shot, felt something, and fell to the ground.

Morgan further testified that he remained conscious after falling to the ground. He saw Odeh standing in front of the store holding a gun. Thinking that Odeh was going to shoot him again, Morgan pulled himself by using his arms to the front of the car. Morgan screamed to the next-door barber, who had come outside, to call the police. Morgan saw Ashkar come outside and take Odeh inside the store. Morgan reached into his pocket and got his cell phone to call his girlfriend, who did not answer, so he left a voicemail. Morgan testified that no one came over to assist him while he was lying on the ground.

Odeh’s and Ashlcar’s Versions of the Incident

Odeh and Ashkar testified that Morgan did not ask for cigarettes, but asked instead for a wrap or cigar rolling paper for tobacco. Following the dispute over Morgan’s attempted purchase, they testified that Morgan threw store items at Odeh and tried to attack him. Odeh retaliated and threw items back at Morgan, who was asked to leave the store; he refused. Odeh and Ashkar testified that Morgan continued throwing objects from the counter and attempting to attack Odeh, while Odeh was behind the counter. Ashkar, a large man, intervened and pushed Morgan away from Odeh. Thereafter, Morgan pointed at Odeh and said: “I am going to fucking kill you, I am going to fucking kill you.” Odeh further testified that, as Morgan left the store, he turned around and told Odeh: “I’m going to go to my car and get my fucking gun and blow your fucking head off, I’m going to go to my car and blow your motherfucking head off.” Odeh testified that Morgan additionally threatened to kill Ashkar: “I’m going to get my gun and blow your motherfucking head off and everybody working in the store.”

Ashkar corroborated that Morgan threatened to harm Odeh and that he challenged Odeh to fight outside. Ashkar also testified that Morgan said that he was going to “bring a bullet,” which is slang for shooting someone. Ashkar did not hear Morgan threaten to get a gun from his car.

After threatening to shoot and kill Odeh and Ashkar, Morgan left the store and walked toward his car. Fearing that he was going to be killed, Odeh pressed the silent alarm button to summon the police. Odeh then grabbed the gun kept in the store and ran to the entrance. Ashkar tried to stop him, but he could not. Odeh held the store door open with his leg and remained at the threshold as he watched Morgan approach his car.

Odeh testified that he watched Morgan because he was afraid that Morgan was going to kill Ashkar and him. As Odeh stood at the threshold of the store, Morgan turned toward Odeh, lifted his untucked shirt, and reached into his waistband. He testified that he believed that Morgan was reaching for a weapon, which caused him to fire the gun he held twice. One of the bullets struck Morgan and paralyzed him.

Odell’s Interrogation

Det. Brian Hardy, the lead detective handling the case, conducted an interrogation of Odeh at the Lauderhill Police Dept. Odeh gave a videotaped statement to Det. Hardy, which was shown to the jury. Before voir dire, the state moved in limine to exclude the portion of the video that showed Odeh crying. Defense counsel did not seek to redact, edit, or exclude any portion of the videotaped interrogation.

Det. Hardy questioned Odeh regarding what occurred at the store. Odeh admitted that he shot Morgan. He told Det. Hardy of the verbal exchanges, the throwing of items, and stated that Morgan threatened to kill him and get a gun from his car. He further stated that he shot Morgan because he was afraid of being shot when Morgan lifted his shirt, put his hand in his waistband, and turned toward Odeh.

During the interrogation, Det. Hardy repeatedly told Odeh that his conduct was unlawful and did not constitute self-defense because Morgan had left the store. Of particular concern are the following statements on the videotape shown to the jury without objection (emphasis added):

DET. HARDY: I understand there was a commotion inside the store, I understand that he [Morgan] messed up the store, I understand that there was a little bit of a fight inside the store, okay, but he is leaving, okay, he is gone, that doesn’t give you the right to turn around and shoot him.
DET. HARDY: I could understand, Ab-del, if he stayed inside the store and he starts walking up with a gun and you see him with a gun, you have every right to defend yourself, no questions, I understand that part, but you didn’t do that, you followed him out of the store.
DET. HARDY: Especially if someone is leaving, okay, we’re not allowed to fire our weapons if someone is leaving, if the threat is gone, we can’t do that, that is against the law.
DET. HARDY: Okay. Alright, Abdel, it is against the law to shoot someone, especially who is unarmed, who is leaving, ok. I understand there was a problem. That is our job, that is job to get there, it is our job to find out what is going on, ok, if it’s just the commotion, it is our job, at your request, to have them trespassed, ok, or he could go to jail for the battery that he did to you by throwing that at you, but that still doesn’t give you the right — .
DET. HARDY: I understand that, Ab-del, and I understand that about you, however, this is something that was outside the norm, ok, but you understand that this is against the law, what you did.
DET. HARDY: Okay. That is why we are here, okay. If someone is threatening you with a weapon, yes, you have the right to defend yourself, or, if someone is kicking the ever living crap out of you and that’s the only way you could defend yourself, ok, that’s justified, and we understand that, and the evidence would show, but that’s not the case here tonight.

Because defense counsel did not object or seek to redact any portion of the videotaped statement, the jury heard Det. Hardy repeatedly state that Odeh did not legally act in self-defense.

Following the showing of Odeh’s videotaped statement, Det. Hardy was cross-examined by defense counsel, who discussed Odeh’s statement that had been shown to the jury. The cross-examination resulted in Det. Hardy’s again telling the jury that Odeh’s conduct did not factually or legally constitute self-defense because his fear was unjustified since Morgan had left the store. In addition, defense counsel’s cross-examination elicited testimony from Det. Hardy that he would have acted differently and that Odeh acted unlawfully.

Jury Instruction on Justifiable Use of Deadly Force

Odeh’s defense was self-defense. The trial judge repeatedly asked counsel to review the self-defense jury instructions, including the justifiable use of deadly force instruction prepared by the judge. Without objection from either party, the trial judge inserted the crime with which Odeh was charged into the jury instructions regarding the justifiable used of deadly force. The instructions as given were:

The use of deadly force is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to himself while resisting:
1. Another’s attempt to murder him, or
2. Any attempt to commit Attempted Murder in the First Degree (Actual Possession/Discharge/Great Bodily Harm) upon him, or
3. Any attempt to commit Attempted Murder in the First Degree (Actual Possession/Discharge/Great Bodily Harm) upon or in any dwelling residence, or vehicle occupied by him.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent
1. Imminent death or great bodily harm to himself or another, or
2. The imminent commission of Attempted Murder in the First Degree (Actual Possession/Discharge/Great Bodily Harm against himself or another.

Defense counsel and the prosecutor agreed to the judge’s jury instructions.

Legal Analysis

Trial counsel did not object to Det. Hardy’s opinion statement regarding Odeh’s claim of self-defense. Trial counsel consented to the jury instructions on the justifiable use of deadly force. Consequently, neither ground asserted for reversal on appeal was preserved by a contemporaneous objection. “Only when error is fundamental can the error be raised on appeal in the absence of a contemporaneous objection.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). Thus, we review both grounds to determine if there is error, and if there is error, whether the error was fundamental error.

Det. Hardy’s Opinion Statements Regarding Self-Defense
This court has observed:
Generally, “a witness’s opinion as to the guilt or innocence of the accused is not admissible.” E.g., Martinez v. State, 761 So.2d 1074, 1079 (Fla.2000). Florida statutory law excludes such opinion testimony, regardless of its relevance, “on the grounds that its probative value is substantially outweighed by unfair prejudice to the defendant.” Id.; see § 90.4.03, Fla. Stat. (2007). The danger of prejudice increases when an investigating officer is permitted to offer an opinion as to the defendant’s guilt.

Battle v. State, 19 So.3d 1045, 1047-48 (Fla. 4th DCA 2009) (emphasis added). It seems axiomatic that an officer’s opinion regarding a legal defense raised by an accused is tantamount to an opinion as to the guilt or innocence of the accused.

This court has recognized there is a difference between an investigating officer giving an opinion as testimony before a jury, and an investigating officer giving an opinion during the interrogation of a suspect. We recently upheld the admission of evidence of investigating officers stating their opinions to a suspect during an interrogation. In Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011), this court affirmed a first-degree murder conviction and life sentence despite the appellant’s argument that the trial court erred in allowing the jury to hear, over defense objection, four statements by the interrogating detectives that indicated their belief as to the appellant’s guilt and their theory as to what happened. We said, “[n]ot everything a detective says to a defendant during a recorded interrogation is unfairly prejudicial under [F.S. Section] 90.403.” Id. at 1112. We concluded that an interrogating detective’s statements to a suspect, when placed in their proper context, could be understood by a rational jury to be interrogation techniques used by law enforcement officers to secure confessions. Id.

As the state aptly points out in its answer brief, “[t]he issue of whether an officer’s out-of-court opinion of an accused’s defense during an interview should be excluded appears to be an issue of first impression in Florida.” The state discusses cases from six other jurisdictions which the state contends deal with an analogous situation. However, we do not agree that the cases deal with an analogous situation. All of the out-of-state authorities cited by the state address an interrogation where the officer gives an opinion that the suspect was not telling the truth. In some of the cases, the officer stated during the interrogation his opinion of what happened factually when the crime occurred. In some of the cases, the officer offered an explicit opinion that the suspect was lying. None of the cases deal with an officer stating his opinion as to whether the defendant’s assertion of a legal defense has merit.

Law enforcement officers have never been considered to be legal experts in a court proceeding. However, a juror may reasonably assume an officer has some training in criminal law and therefore can properly opine as to the legal merits of a defense to a crime. Allowing an improper opinion by a law enforcement officer on a matter of law encourages an improper assumption on the part of the jury that the officer’s opinion is legally correct. While it is safe to assume that jurors can recognize as an interrogation technique that an investigating officer may offer an opinion about facts during an interrogation to elicit a response from a criminal suspect, it is not safe to assume that jurors can recognize as an interrogation technique that an investigating officer may offer an opinion about the law during interrogation to elicit a response from a criminal suspect. Thus, we determine it was error to allow the jury to hear the opinion of Det. Hardy during interrogation that Odeh could not legally claim self-defense in this case. When Det. Hardy responded to questions by defense counsel during cross-examination, the error was invited. See Bryan v. Bryan, 930 So.2d 693, 697 (Fla. 3d DCA 2006) (“ ‘[Hinder the invited-error doctrine, a party may not make or invite error at trial and then take advantage of the error on appeal.’ ”) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)).

We next examine whether the error of allowing the jury to hear Det. Hardy’s opinion of Odeh’s claim of self-defense during interrogation was fundamental error requiring reversal as an exception to the contemporaneous objection rule. Our supreme court has stated:

“[I]n order to be of such fundamental nature as to justify a reversal in the absence of timely objection the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Brown v. State, 124 So.2d 481, 484 (Fla.1960) (holding that the alleged error “did not permeate or saturate the trial with such basic invalidity as to lead to a reversal regardless of a timely objection”). Thus, an error is deemed fundamental “when it goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998).

F.B. v. State, 852 So.2d 226, 229 (Fla.2003). It does not appear to us that the admission of evidence of Det. Hardy’s opinion during Odeh’s interrogation constitutes fundamental error which amounts to a denial of due process. His opinion did not permeate or saturate the trial with basic invalidity. The state never suggested or implied that Det. Hardy was an expert on the law. The state did not allude to his opinion regarding self-defense in its opening statement. The only reference to Det. Hardy’s opinion regarding self-defense in the state’s closing argument was the following: “And, as Detective Hardy told you, even if he threatened to get a gun and had left the store, the threat is gone, still not legal, not legal.” However, the state could have made 'precisely the same argument if the jury had never heard Det. Hardy’s opinion. After reviewing the entire record of the trial, we cannot say the guilty verdict could not have been obtained without Det. Hardy’s opinion on self-defense. Having determined the error of admitting evidence of Det. Hardy’s opinion was not fundamental error, a contemporaneous objection was required to preserve the issue for appeal. Because the error was not properly preserved, we affirm as to this ground.

Jury Instruction on the Justifiable Use of Deadly Force

The defense agreed to and made no objection to the jury instructions given by the trial court regarding the justifiable use of deadly force. Thus, any error regarding those instructions was not preserved for appellate review. As to this ground for appeal, we first analyze whether there was error in the instructions, and if so, we address whether the error was fundamental error which would require reversal without a contemporaneous objection.

The trial judge instructed the jury on the justifiable use of force using the portion of Florida Standard Jury Instruction (Crim.) 3.6(f), Justifiable Use of Deadly Force, in which section 782.02, Florida Statutes is the statutory basis for the instruction. The standard jury instruction is to be given in the following format:

The use of force likely to cause death or great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:
1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon any dwelling house occupied by [him] [her], or
4. any attempt to commit (applicable felony) in any dwelling house occupied by [him] [her].
Insert and define applicable felony that defendant alleges victim attempted to commit.

The trial judge also instructed the jury on the justifiable use of force using the portion of Florida Standard Jury Instruction (Crim.) 3.6(f), Justifiable Use of Deadly Force, in which sections 776.012 and 776.031, Florida Statutes are the statutory bases for the instruction. The standard jury instruction is to be given in the following format:

A person is justified in using deadly force if [he] [she] reasonably believes that such force is necessary to prevent
1. imminent death or great bodily harm to [himself] [herself] or another, or
2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.
Insert and define applicable forcible felony that defendant alleges victim attempted to commit. Forcible felonies are listed in § 776.08, Fla. Stat.

As stated, the “applicable felony” and “applicable forcible felony” to be inserted is a crime “that defendant alleges the victim attempted to commit.” Thus, when the trial judge inserted the crime charged against Odeh instead of a crime allegedly committed by the victim, the trial judge did not give an accurate instruction. The logical choices for the “applicable felony” and “applicable forcible felony” (other than murder) in this case, based on Odeh’s claimed belief that Morgan was about to pull a gun from his waistband, were aggravated assault or aggravated battery.

Odeh argues on appeal, and we agree, that by inserting the crime he was charged with as the “applicable felony” and the “applicable forcible felony,” the trial judge left the jury with the impression that Odeh was justified in using deadly force only if Odeh believed Morgan was attempting to murder him. As Odeh correctly points out, he would have been justified in using deadly force if Morgan was reaching for a gun to assault him or shoot to wound him. Thus, we find the jury instruction was erroneous as given because the trial judge did not give the instruction from the viewpoint of the “applicable felony” or “applicable forcible felony” “that defendant alleges victim attempted to commit.”

However, we find the error was not fundamental. Odeh consistently and steadfastly stated during his interrogation and during his testimony before the jury that he believed Morgan was intending to murder him. Odeh emphatically maintained that Morgan repeatedly threatened to get a gun to kill him. He never said Morgan was getting a gun to scare him or perhaps wound him.

In instructing the jury on the justifiable use of deadly force under Section 782.02, the first alternative the judge instructed on was the use of deadly force “while resisting an attempt to murder him.” The fact that in giving other alternatives, the trial judge set the standard higher for the type of murder does not make the error fundamental to the point of denying Odeh of a due process right to a fair trial. All of the alternative versions of the type of murder given in the erroneous jury instruction were completely consistent with Odeh’s belief that Morgan was reaching for a gun to murder him. The erroneous instruction did not deprive Odeh of the opportunity to present his defense: self-defense to avoid being killed by a gun.

In instructing the jury on the justifiable use of deadly force under sections 776.012 and 776.081, the first alternative the judge instructed on was the use of deadly force “necessary to prevent imminent death or great bodily harm to himself or another.” That portion of the instruction would have allowed Odeh to argue he was justified in using deadly force in situations other than where he believed he was going to be murdered by Morgan. The instruction as given on the second alternative, where the trial court improperly inserted the crime charged against Odeh, was nonetheless consistent with Odeh’s emphatic statement that he believed Morgan was going to kill him with a gun. That instruction also did not prevent Odeh from presenting his defense.

In assessing fundamental error regarding the jury instructions it is significant that the state did not quote or specifically address the trial court’s instructions on the justifiable use of deadly force in its closing argument. The state made no attempt to strengthen its case by relying on the erroneous instructions.

Because the erroneous jury instructions were not fundamental error, the defense agreed to the instructions as given, and the error was not preserved with a contemporaneous objection, we affirm as to this ground.

Ineffective Assistance of Counsel

Finally, we address Odeh’s contention on appeal that the record demonstrates that trial counsel was ineffective to such an extent that reversal is required. Ineffective assistance of counsel generally cannot be raised for the first time on appeal. See Consalvo v. State, 697 So.2d 805, 811-12 (Fla.1997); Noble v. State, 543 So.2d 402 (Fla. 4th DCA 1989). A claim of ineffective assistance of counsel is properly made in a motion for post-conviction relief under Fla. R. Crim. P. 3.850. Jean v. State, 41 So.3d 1078, 1080 (Fla. 4th DCA 2010). Odeh has not shown that his case qualifies for the rare exception to this general rule where “the claimed ineffectiveness is apparent on the face of the record.” Kidd v. State, 978 So.2d 868, 869 (Fla. 4th DCA 2008). Thus, we decline to reverse on direct appeal based on Odeh’s claim of ineffective assistance of counsel.

Having addressed all issues raised on appeal, the judgment and sentence are affirmed.

WARNER and LEVINE, JJ., concur.

      . The cases discussed in the state’s answer brief are: Dubria v. Smith, 224 F.3d 995 (9th Cir.2000); State v. Cordova, 137 Idaho 635, 51 P.3d 449 (2002); State v. Elnicki, 279 Kan. 47, 105 P.3d 1222 (2005); Lanham v. Commonwealth, 171 S.W.3d 14 (Ky.2005); State v. O'Brien, 857 S.W.2d 212 (Mo.1993); State v. Palmes, 964 S.W.2d 241 (Mo.Ct.App.1998); State v. Demery, 144 Wash.2d 753, 30 P.3d 1278 (2001).

      . The refusal of courts to recognize law enforcement officers as experts on law probably explains why the state was unable to find any legal precedent for an officer giving his opinion during an interrogation as to the availability of a legal defense.


text:
    BOYNTON WATERWAYS INVESTMENT ASSOCIATES, LLC, Appellant, v. Jevgenijs BEZKOROVAINIJS, Appellee.
    No. 4D09-4233.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Alexander D. Varkas, Jr. and Robert A. Sweetapple of Sweetapple, Broeker & Var-kas, P.L., Boca Raton, for appellant.

      Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Robert H. Cooper of Robert H. Cooper, P.A., Miami, for appellee.
    Katherine E. Giddings and Pamela C. Marsh of Akerman, Senterfitt, Tallahassee and Keith C. Hetrick, Tallahassee, for Amicus Curiae Florida Home Builders Association and The National Association of Home Builders.
   MAY, C.J.

In the downturn of today’s real estate market, we encounter a dispute between the buyer and seller of a pre-construction condominium unit. The trial court entered summary judgment for the buyer, from which the seller now appeals. The seller argues that the sales contract for the pre-construction condominium unit is authorized in Florida, and there was no legitimate basis to revoke the contract, pursuant to the Interstate Land Sales Full Disclosure Act, 15 U.S.C. § 1701 et seq. (2006) [ILSFDA]. We agree and reverse.

In Fall 2006, the buyer entered into a contract for the purchase of a pre-con-struction condominium unit. In September 2008, the buyer filed suit to revoke the contract under ILSFDA. The basis for the. revocation was an alleged non-compliance with section 718.109, Florida Statutes (2006), which defines the legal description for condominium parcels as including “recording data” for the Declaration. The buyer argued that because the sales contract failed to provide a legal description as defined by section 718.109, it ran afoul of section 1708(d)(1) of ILSFDA, allowing for revocation of the contract. The trial court entered summary judgment for the buyer and revoked the contract.

We have de novo review of this summary judgment. Cohen v. Arvin, 878 So.2d 403, 405 (Fla. 4th DCA 2004). As no one disputes the facts, we must determine whether the judgment was correct as a matter of law.

It is first necessary to understand the nature and content of the statutes at issue. “ILSFDA is an antifraud statute utilizing disclosure as its primary tool....” Winter v. Hollingsworth Props., Inc., 777 F.2d 1444, 1447 (11th Cir.1985). It applies to the sale of condominium units. Id. at 1449.

Section 1703(d) of ILSFDA provides:
Any contract or agreement which is for the sale or lease of a lot ... which does not provide—
(1) a description of the lot which makes such lot clearly identifiable and which is in a form acceptable for recording by the appropriate public official responsible for maintaining land records in the jurisdiction in which the lot is located;
may be revoked at the option of the purchaser or lessee for two years from the date of the signing of such contract or agreement.

15 U.S.C. § 1703(d)(1) (emphasis added). This section provides a two-year period for revocation of an agreement if the description of the lot is not “in a form acceptable for recording.”

Section 718.109, Florida Statutes (2006), provides: “Following the recording of the declaration, a description of a condominium parcel by the number or other designation by which the unit is identified in the declaration, together with the recording data identifying the declaration, shall be a sufficient legal description for all purposes.” § 718.109, Fla. Stat. (2006) (emphasis added). Using this provision, the buyer successfully argued to the trial court that the lack of “recording data” meant that the description of the lot was not “in a form acceptable for recording” under ILSFDA.

The seller argues the contract complied with ILSFDA’s requirements because section 718.109, by its very wording, does not apply if the declaration has not been recorded. Further, the buyer received a copy of the unrecorded declaration along with the prospectus and contract, more than sufficient information to satisfy ILSFDA.

Recently, this very issue was addressed in Taplett v. TRG Oasis (Tower Two), Ltd., L.P., 755 F.Supp.2d 1197 (M.D.Fla.2009). Similar to our facts, the buyer in Taplett attempted to revoke the sales contract of a pre-construction condominium, based in part on the lack of “recording data,” as required by section 718.109. Id. at 1204-05. The District Court noted that Florida permits the sale of pre-construction condominiums prior to the filing of the Declaration. Id. at 1204; § 718.504(24)(a), Fla. Stat. (2006). The court also recognized that section 718.109 does not apply until the Declaration is recorded. Id. at 1204-05.

While the contract did fail to reference the declaration’s “recording data”, [the seller] actually gave more: the proposed declaration itself along with a contractual obligation to file it prior to closing. To penalize a developer for giving the entire document rather than a mere identifying reference (required so that the same document could be found) would be absurd.
In any event, ILSFDA is not aimed at ensuring technical compliance with state recording statutes. Rather, its focus is preventing fraud through the disclosure of pertinent information. Under Florida’s statutory scheme, it is the Declaration, not the later condominium parcel filing, that contains the relevant disclosures and descriptions of property. Given [the seller’s] disclosure of the proposed Declaration (which included a property description and other information) and its compliance with Florida’s statutory framework [section 718.504(24)(a) ], this Court finds no violation of § 1703(d)(1).

Id. at 1205.

We find the District Court’s analysis applies equally here. The buyer received the actual proposed declaration, which was included in the prospectus, the unit number, address, development name, site map, and floor plans, thereby making the property purchased “clearly identifiable” and “in a form acceptable for recording.” These documents were incorporated into the contract, pursuant to paragraph 39. The seller actually gave the buyer more information than required by section 1703(d)(1). Accordingly, the legal description of the unit in the contract complied with ILSFDA. The information was sufficient for the buyer to clearly identify the particular unit and was “in a form acceptable for recording” under Florida law. See Taplett, 755 F.Supp.2d at 1205.

We therefore reverse the final summary judgment in favor of the buyer and remand the case to the trial court to enter summary judgment for the seller.

Reversed and Remanded.

HAZOURI and CIKLIN, JJ., concur.

      . The proceedings were not quite so simplistic, but involved a number of motions and hearings. The procedural history has not been included as it adds nothing to the law, the opinion, or the outcome of the case.

      . We find no merit in the buyer’s alternative argument that the buyer was entitled to revoke the agreement based on the seller's failure to satisfy the notice of default provision of section 1703(d)(2) as the issue was not preserved.


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    Christopher LACHICK, Appellant, v. Thomas J. CHURLEY, Alamo Financing, LLC, and Alamo Financing, LP, Appellees.
    No. 4D08-2582.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Charles D. Thomas of Thompson & Thomas, P.A., West Palm Beach, for appellant.
    James P. Waczewski of Luks, Santaniel-lo, Petrillo & Jones, Tallahassee, for appel-lees Alamo Financing.
   PER CURIAM.

Upon review of appellant’s June 3, 2011 Notice of Intent Regarding Filing of Initial Brief, the Final Judgment of the trial court is affirmed. See Vargas v. Enter. Leasing Co., 60 So.3d 1037 (Fla.2011), and Fla. R.App. P. 9.315(a).

Affirmed.

POLEN, GROSS and CONNER, JJ., concur.


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    Fred BAILEY and Valerie Baker Bailey, Appellants, v. DEUTSCHE BANK TRUST COMPANY AMERICAS, formerly known as Banker’s Trust Company, as trustee and custodian, Appellee.
    No. 4D10-2744.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Garry W. Johnson and Bruce K. Herman of 511 Law, P.A., Fort Lauderdale, for appellant.
    Ira Scot Silverstein of Elizabeth R. Wel-born, P.A., Deerfield Beach, for appellee.
   PER CURIAM.

Affirmed. See Riggs v. Aurora Loan Servs., 36 So.3d 932 (Fla. 4th DCA 2010).

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


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    SCHICKEDANZ BROS.-RIVIERA LTD., a Florida Limited Partnership, Schickedanz Bros.-Palm Beach, Ltd., a Florida Limited Partnership, Schickedanz Enterprises, Inc., the corporate general partner of Schickedanz Bros.-Riviera Ltd., and Schickedanz Bros.-Palm Beach, Ltd., Appellants, v. Robert HARRIS and Real Estate Marketing And Consulting, Inc., a Florida corporation, Appellees.
    No. 4D10-457.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Jane Kreusler-Walsh and Barbara J. Compiani of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Rodney L. Tennyson of Rodney L. Tennyson, P.A., Lantana, for appellants.
    Michael J. Ryan, North Palm Beach, for appellees.
   PER CURIAM.

We affirm, in part, the second amended final judgment post mandate on rehearing. We reverse that portion of the final judgment failing to award appellant prejudgment interest. We remand to the circuit court to enter an award of prejudgment interest from the date that appellant filed its counterclaim. See Ganot Corp. v. J.M.G. Constr. Corp., 560 So.2d 804, 804-05 (Fla. 4th DCA 1990). The trial court did not err in awarding prejudgment interest to appellee. See Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567, 575 (Fla.2010).

STEVENSON, GROSS and TAYLOR, JJ., concur.


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    Steven DEMPSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-2196.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.

      Howard Finkelstein, Public Defender, and- Tamara L. Curtis, Assistant Public Defender, Fort Lauderdale, for petitioner.
    No appearance required for respondent.
   PER CURIAM.

Steven Dempsey petitions for a writ of prohibition seeking review of the denial of his motion for discharge and to prevent his prosecution based on an alleged violation of the speedy trial without demand rule. Fla. R.Crim. P. 3.191(a). A writ of prohibition is an appropriate remedy “where an accused has been denied his right to a speedy trial and his motion for discharge has been denied.” Sherrod v. Franza, 427 So.2d 161, 163 (Fla.1983).

We agree with the trial court that, based on his failure to appear in delinquency proceedings which were based on the same criminal episode, petitioner was “unavailable for trial” and waived his right to discharge. Fla. R.Crim. P. 3.191(j). We deny the petition.

Petitioner was initially charged in juvenile delinquency petitions with two separate burglaries and grand theft. Notice of the arraignment was served on petitioner’s mother, his listed guardian, at her place of employment. See § 48.041(l)(a), Fla. Stat. (2010) (providing that service of process on a minor may be accomplished by serving a parent or legal guardian). Petitioner failed to appear at arraignment and pickup orders issued. Petitioner then turned nineteen years old which deprived the court of jurisdiction to proceed in delinquency. See generally State v. Griffith, 675 So.2d 911 (Fla.1996); § 985.0301(5)(a), Fla. Stat. (2010).

Two hundred and three days after the date petitioner had initially been taken into custody for this conduct, the State filed felony informations charging petitioner in adult court for the same conduct. Petitioner moved for discharge because the State had not filed the charges within the 175-day speedy trial without demand period that applies to felonies. State v. Williams, 791 So.2d 1088, 1091 (Fla.2001).

The trial court denied the motion ruling that petitioner’s failure to appear in the juvenile delinquency proceedings amounted to unavailability for trial which waived the right to discharge. Fla. R.Crim. P. 3.191(j)(3); Fla. R.Crim. P. 3.191(k) (“A person is unavailable for trial if the person or the person’s counsel fails to attend a proceeding at which either’s presence is required by these rules ... ”). Petitioner argues that the failure to appear and resulting waiver in the juvenile proceedings does not apply to the adult proceedings. State v. Gray, 370 So.2d 432, 433 (Fla. 1st DCA 1979). We reject this argument. The First District Court of Appeal’s decision in Gray is not controlling.

In State v. Nelson, 26 So.3d 570 (Fla. 2010), the Florida Supreme Court considered the effect of a speedy trial waiver in juvenile court on subsequently-filed adult charges for the same conduct. The Court held that the defense continuance in juvenile court (which waived the right to discharge) applied to the subsequently-filed adult charges: “This waiver [the waiver in juvenile court] is construed as an ongoing waiver of speedy trial rights as to all charges which emanate from the same criminal episode, including any newly filed charges arising out of the incident.” Id. at 576 (emphasis in original) (applying Stewart v. State, 491 So.2d 271, 272 (Fla.1986)).

Petitioner’s failure to appear in the juvenile delinquency proceedings, and the resulting waiver of the right to discharge under speedy trial rules, applies to all charges emanating from that same criminal episode, including the subsequently-filed adult charges. As the Court emphasized in Nelson, “[A] defendant has a right to speedy trial, not a right to speedy discharge without trial.” 26 So.3d at 576.

Petitioner argues that the State failed to show unavailability or willful failure to appear in the delinquency proceedings. Pursuant to Rule 3.191(k), no presumption of unavailability attaches based on a failure to appear. If the State objects to discharge, the initial burden is on the State to present “any evidence tending to show nonavailability.” Fla. R.Crim. P. 3.191(k). The burden then shifts to the defense to “establish, by competent proof, availability during the term.” Id.

The State adduced sufficient evidence tending to show nonavailability. See, e.g., McMullen v. State, 331 So.2d 357 (Fla. 1st DCA 1976) (holding that State produced sufficient evidence to make a prima facie showing of unavailability based on defendant failing to respond to a notice of arraignment that was mailed to defendant). The defense did not produce, or attempt to produce, any proof of availability or that defendant did not. willfully fail to appear.

The defense does not dispute that service of notice on petitioner’s mother sufficed for a finding of waiver based on failure to appear in the juvenile delinquency proceeding but argues that nothing short of actual notice can suffice in the context of the adult speedy trial rules. However, actual notice is not absolutely required under the adult rules. Thompson v. State, 1 So.3d 1107, 1110-11 (Fla. 4th DCA 2009), rev. denied, 14 So.3d 1004 (Fla.2004).

Petitioner is not entitled to speedy discharge without trial. He may demand speedy trial if that is what he desires.

The petition is denied.

MAY, C.J., GROSS and TAYLOR, JJ., concur.


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    Dora TREVINO, Appellant, v. DEPARTMENT OF REVENUE and DIVISION OF RISK MANAGEMENT, State of Florida, Appellees.
    No. 1D11-0431.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox <& Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    John R. Darin of Znosko & Reas, P.A., Longwood, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred by employing an incorrect legal standard when he rejected the opinion of the expert medical advisor (EMA) and failed to award (1) cervical spine diagnostic testing and (2) a lumbar spine evaluation at an anesthesia pain clinic. We affirm Claimant’s first point on appeal and reverse the second.

In Claimant’s first point, she argues the JCC rejected the opinion of the EMA when the record contains no clear and convincing evidence to support such a denial. See § 440.13(9)(c), Fla. Stat. (2007) (“The opinion of the [EMA] is presumed to be correct unless there is clear and convincing evidence to the contrary as determined by the [JCC].”). Claimant sought an award of a cervical discogram and CT scan. The JCC found that the EMA recommended a surgical evaluation at which time the requested diagnostic testing would be considered. In doing so, the JCC did not reject the EMA’s opinion; rather, he interpreted it differently than did Claimant. Because competent substantial evidence supports the JCC’s interpretation of the doctor’s recommendations, we affirm the JCC’s award of an evalúation by a spine surgeon. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (holding JCC’s findings of fact must be upheld if any view of the evidence and its permissible inferences supports them).

In her second point on appeal, Claimant argues that the JCC erred in rejecting the EMA’s recommendations regarding treatment for the lumbar spine because the JCC did not recite clear and convincing evidence in support of his denial of the claim for lumbar treatment. In fact, the JCC found the EMA made no recommendations for lumbar treatment.

Generally, it is the claimant’s burden to prove entitlement to any requested benefit. See Fitzgerald v. Osceola County Sch. Bd., 974 So.2d 1161, 1164 (Fla. 1st DCA 2008) (“Claimant bore the burden over the course of the proceedings below to prove her entitlement to workers’ compensation benefits.”). When the JCC denied the requested lumbar spine evaluations, concluding that Claimant did not meet her burden of proof, arguably, it was not necessary that competent substantial evidence support the JCC’s denial of benefits. Id. (“A decision in favor of the party without the burden of proof need not be supported by competent sustainable evidence.”). Even though the JCC need not provide detailed findings explaining the denial of the benefits, the JCC’s discretion is not unfettered. As we noted in Ullman:

The role of this court must be to guard against fanciful or arbitrary abuse of discretion in workers’ compensation cases, and we will continue to do so by scrutinizing JCC findings under the light of the basic rule requiring competent substantial evidence in support of such findings.

625 So.2d at 873.

Here, the parties did not question the EMA about his lumbar spine recommendations during his deposition. A review of his written report makes clear, however, that he recommended an evaluation of Claimant’s lumbar spine complaints at an anesthesia pain clinic, as was recommended by Claimant’s independent medical examiner. No evidence supports the JCC’s stated finding that the EMA did not make any treatment recommendations for the lumbar spine; thus, the JCC abused his discretion in denying the claim. Accordingly, we reverse this denial and direct that an order be entered awarding an evaluation at an anesthesia pain clinic.

We AFFIRM in part, REVERSE in part, and REMAND with directions that an order be entered awarding the requested evaluation at a pain clinic.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.