author: ORFINGER, C.J.

text:
    Heriberto VILA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4020.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    Rehearing Denied Nov. 22, 2011.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

Heriberto Vila was convicted of burglary of a conveyance and battery. He appeals only his conviction of battery, contending that he was entitled to a jury instruction regarding the justifiable use of non-deadly force. We conclude that Vila was entitled to the requested instruction, but that the failure to provide it was harmless error. As a result, we affirm the conviction and sentence.

The day before the incident, a thief stole tire rims from one of Vila’s friends. The next day the victim, an “elderly gentleman,” was driving in Vila’s neighborhood collecting usable items left curbside discarded as trash. Vila saw the victim, who coincidentally drove a truck similar to the rim thief s, and assumed that he was the rim thief. Vila, using his car to block the victim’s truck from leaving the neighborhood, approached the truck while yelling at the victim, and accused him of stealing the rims.

The victim testified that Vila opened the door to his truck, reached inside, pulled him out, threw him to the ground, and began hitting him with a bicycle tire. Vila, on the other hand, testified that he did not enter the truck, and, instead, that the victim got out of the truck, and “armed” himself with a bicycle rim. According to Vila, in fear of being struck by the victim, he retrieved an object from a nearby yard to defend himself. When asked if he hit the victim, Vila stated, “When he hit me first, then I hit him. He hit me first and he fell and so I hit him.”

Vila requested a jury instruction of justifiable use of non-deadly force regarding the battery charge. The trial court denied his request, saying, “there is no self-defense when you create the situation.” After Vila was convicted of the burglary of a conveyance and battery, this appeal followed.

Generally, a trial court’s decision to give or withhold a proposed jury instruction is reviewed for an abuse of discretion. Davis v. State, 922 So.2d 488, 444 (Fla. 5th DCA 2006); Worley v. State, 848 So.2d 491, 491 (Fla. 5th DCA 2003). However, in a criminal proceeding, the trial court’s discretion is narrower because a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support the theory and the theory is recognized as valid under Florida law. Cruz v. State, 971 So.2d 178, 181-82 (Fla. 5th DCA 2007). In determining whether to give a requested instruction, the trial court should consider the evidence presented without weighing the evidence, as the latter is a task for the jury. Rockerman v. State, 773 So.2d 602, 603 (Fla. 1st DCA 2000). “The question of self-defense is one of fact, and is one for the jury to decide where the facts are disputed.” Dias v. State, 812 So.2d 487, 491 (Fla. 4th DCA 2002) (citing Scholl v. State, 94 Fla. 1138, 115 So. 43, 44 (1927)).

Vila argues that because he presented some evidence that he was defending himself from the victim’s attack, the trial court erred in denying his requested jury instruction based on section 776.012, Florida Statutes (2010), which provides, in part:

A person is justified in using force, except deadly force, against another when and to the extent that the person reasonably believes that such conduct is necessary to defend himself or herself or another against the other’s imminent use of unlawful force....

According to Vila’s testimony, the victim attacked him first, and he responded in order to defend himself against that attack. The State contends that Vila was not entitled to the instruction because the evidence that he presented was minimal and self-serving. This argument lacks merit as a defendant is entitled to a self-defense instruction if there is any evidence to support his defense. Wright v. State, 705 So.2d 102, 104 (Fla. 4th DCA 1998) (holding that defendant is entitled to jury instruction on his theory of case if there is any evidence to support it, no matter how flimsy that evidence might be); Taylor v. State, 410 So.2d 1358, 1359 (Fla. 1st DCA 1982) (holding defendant entitled to requested self-defense instruction no matter “how weak or improbable his testimony may have been with respect to the circumstances” leading to commission of offense).

However, self-defense is statutorily unavailable to a person who:

(1) Is attempting to commit, committing, or escaping after the commission of, a forcible felony; or
(2) Initially provokes the use of force against himself or herself,

§ 776.041(1) & (2), Fla. Stat. (2010). Though not clear, it appears that the trial court concluded that the self-defense instruction was unavailable to Vila based upon one or both of these statutory exceptions. That was error, as it is within the province of the jury to make the determination as to whether the defendant surrendered his right to self-defense pursuant to section 776.041. See generally Redding v. State, 41 So.3d 353, 354 (Fla. 2d DCA 2010); Cancel v. State, 985 So.2d 1127, 1129-30 (Fla. 5th DCA 2008); Bates v. State, 883 So.2d 907, 908 (Fla. 2d DCA 2004). If evidence exists that raises self-defense as an issue, the proper approach is to offer the self-defense instruction with the forcible felony or initial provocation exceptions. See generally Cancel, 985 So.2d at 1127.

Nonetheless, we conclude the error was harmless. The jury found Vila guilty of burglary of a conveyance. Given the evidence presented, the jury necessarily credited the victim’s testimony that Vila reached into the truck and pulled him out. That being the case, Vila either committed a forcible felony or initially provoked the use of force against himself, either situation precluding a claim of self-defense.

The harmless error analysis is applicable to jury instructions. Ashland Oil, Inc. v. Pickard, 269 So.2d 714 (Fla. 3d DCA 1972). The jury’s unchallenged verdict on the burglary charge causes us to conclude that Vila was the initial aggressor and surrendered his right to self-defense. It has long been held that the refusal to give a proper instruction that would have not aided a party is harmless error. First Nat’l Bank v. Roberts, 92 Fla. 18, 109 So. 635 (1926); Pennington v. State, 91 Fla. 446, 107 So. 331 (1926); May v. Seymour, 17 Fla. 725 (1880). As a result, we affirm. See Driggers v. State, 90 Fla. 324, 105 So. 841 (1925) (holding refusal of requested instructions does not require reversal where defendant not prejudiced).

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.

      . When there is no evidence that a defendant acted in self-defense or when the justification defense is inconsistent with other asserted defenses, a defendant is not entitled to a self-defense instruction. See Keyes v. State, 804 So.2d 373, 375 (Fla. 4th DCA 2001) ("As a general rule, a defendant's contention that his injury of another was an accident bars an instruction on self[-]defense or defense of another.”); Roberts v. State, 753 So.2d 136, 137 (Fla. 2d DCA 2000) (affirming denial of instruction where defendant failed to present any evidence to support self-defense); Moyer v. State, 558 So.2d 1045 (Fla. 5th DCA 1990) (affirming denial of justification jury instruction because it was inconsistent with alibi defense). None of those circumstances are present here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roy E. ADAMS, II, and Joanne Adams, Appellants, v. MITCHELL G. HANCOCK, INC., Appellee.
    No. 5D10-1100.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.

      Roy D. Wasson, Annabel C. Majewski and Roberta Mandel of Wasson & Associates, Chartered, Miami, and Arthur W. Niergarth, Jr., of Arthur W. Niergarth, Jr., P.A., Melbourne, for Appellants.
    Richard A. Sherman, Sr., and James W. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, and Lester A. Lewis of Lewis & Leiser, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Roy E. Adams, II, and Joanne Adams appeal the trial court’s final summary judgment in favor of Mitchell G. Hancock, Inc. (hereinafter “Hancock”). The final judgment found that Hancock was not vicariously liable for the negligence of its employee, Jonathan Nowlin, because Now-lin was not engaged in the course and scope of his employment when his automobile collided with a vehicle driven by Roy Adams.

The facts are undisputed. Hancock’s corporate office is located in Okeechobee, and its crews often work for extended periods at other locations. Hancock provides its work crews with transportation to the job sites, hotel accommodations, and a monetary per diem. Employees who elect to drive their own vehicles to the out-of-town job sites are not reimbursed for any travel expenses, because Hancock provides transportation at its expense.

Nowlin was part of a four-man work crew engaged in an extended construction project in Rockledge. Nowlin’s supervisor would pick up the crew each morning and drop them off each evening at the motel where they stayed. The supervisor drove home nightly to St. Cloud. On Wednesday of the week in question, Nowlin asked permission to travel home to Vero Beach that night to see his girlfriend, but the request was refused. After work, the supervisor drove home to St. Cloud as usual, and assumed Nowlin stayed in Rockledge that night. At about 5:54 a.m. on Thursday, the supervisor called Nowlin and learned that, despite his directions to the contrary, Nowlin went to Vero Beach the night before and was in the process of driving back to Rockledge. The supervisor indicated he was about ten minutes in travel time behind Nowlin and would meet up with him at the motel. Shortly after the phone call, Nowlin was involved in the collision which took his life and injured Adams.

Where there are no factual disputes, whether an employee is acting within the course and scope of his employment is a question of law. Sussman v. Fla. E. Coast Props., Inc., 557 So.2d 74, 76 (Fla. 3d DCA 1990) (citation omitted). We agree that the “going and coming” provision of section 440.092(2), Florida Statutes (2009), operated to establish, as a matter of law, that Nowlin was not in the course and scope of his employment at the time of the accident. Further, under these material undisputed facts, the “dual purposes exception” did not apply. See generally Gilbert v. Publix Supermkts., Inc., 790 So.2d 1057 (Fla.2001). Accordingly, the final summary judgment in favor of Hancock is affirmed.

AFFIRMED.

TORPY, COHEN and JACOBUS, JJ., concur.

      . Both at the summary judgment hearing and oral argument, counsel suggested that the supervisor instructed Nowlin to go to the motel and get the crew ready. While not critical to our decision, the evidence reflected that the supervisor typically called Nowlin each morning to ensure the work crew was awake and prepared for the upcoming day. However, on the morning of the accident, when the supervisor learned Nowlin had gone home the pri- or evening, the conversation was only to the effect that they would meet at the motel.


text:
    Joyce TAYLOR and Lankford Taylor, Appellants, v. BAYVIEW LOAN SERVICING, LLC, Appellee.
    No. 2D10-1493.
    District Court of Appeal of Florida, Second District.
    Nov. 9, 2011.
    Enrique Nieves III of Ice Legal, P.A., Royal Palm Beach, for Appellants.
    J. Joseph Givner, Esther S. Meisels, and Randon Loeb of Higer Lichter & Givner, LLP, Aventura, for Appellee.
   PER CURIAM.

Joyce and Lankford Taylor appeal a final judgment of foreclosure entered after the trial court granted a motion for summary judgment in favor of Bayview Loan Servicing, LLC. Because genuine issues of material fact remain regarding the Tay-lors’ affirmative defense of lack of notice, we reverse the final judgment and remand for further proceedings.

On January 4, 2006, the Taylors signed a mortgage securing an indebtedness in the principal amount of $194,350, evidenced by a note Joyce Taylor signed on the same date. The mortgage names the lender as USMoney Source, Inc., d/b/a Soluna First (USMoney) and the mortgagee as Mortgage Electronic Registration Systems, Inc. (MERS), acting as a nominee for USMo-ney. Attached to the note is an allonge signed by the president of USMoney and dated January 4, 2006, that endorses the note without recourse to Bayview.

On August 1, 2007, Bayview filed an unsworn two-count complaint against the Taylors. Count one sought to establish and enforce the note, and count two sought to foreclose the mortgage. Bayview alleged that it “owns and holds said note by virtue of the endorsement/allonge and said mortgage by virtue of the assignment of mortgage, copies of both of which are attached hereto.” No copy of the assignment of mortgage was attached to the complaint. Although Bayview alleged that it holds the note, Bayview further alleged that the original note was lost or destroyed after Bayview acquired it and that the exact time and manner of the loss or destruction was unknown to Bayview. Copies of the note, allonge, and mortgage were attached to the complaint. The complaint also contained the general allegation that “[a]ll conditions precedent to the filing of this action have been performed or have occurred.”

The Taylors filed an answer and affirmative defenses. Among their affirmative defenses the Taylors asserted that Bay-view “is not the proper holder of the mortgage and therefore lacks standing to bring a foreclosure action.” The Taylors also asserted that Bayview “failed to give proper notice of the default in the payments on the note and mortgage” and thus was “es-topped from accelerating said debt.”

On November 21, 2007, Bayview filed its motion for summary judgment and affidavit of indebtedness. Later, amended affidavits of indebtedness were filed. None of the affidavits mentioned an assignment of mortgage, and no documents were attached to the affidavits.

Bayview did not file its reply to the Taylors’ affirmative defenses until June 17, 2008. In its reply, Bayview alleged that it met the notice requirements. Bayview also alleged that it was entitled to maintain the foreclosure action without a written assignment of mortgage because the transfer of the note was sufficient. Bayview subsequently filed the original note, al-longe, and mortgage.

The trial court held a hearing on the motion for summary judgment on February 22, 2010. The record contains a notice of filing copy of assignment of mortgage dated February 10, 2010, but the notice was not filed until February 23, 2010. The assignment of mortgage reflects that it was executed on August 7, 2007, after the complaint was filed. The trial court granted summary judgment and rendered the final judgment of foreclosure.

The standard of review on a summary judgment is de novo. Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006). “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting Fla. R. Civ. P. 1.510(c)). The movant has the burden to prove the absence of a genuine issue of material fact, and “this court must view ‘every possible inference in favor of the party against whom summary judgment has been entered.’ ” Id. (quoting Maynard v. Household Fin. Corp. Ill, 861 So.2d 1204, 1206 (Fla. 2d DCA 2003)). And, “if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Nard, Inc. v. DeVito Contracting & Supply, Inc., 769 So.2d 1138, 1140 (Fla. 2d DCA 2000). Furthermore, to be entitled to summary judgment, the movant must not only establish that there are no genuine issues of material fact regarding the parties’ claims, but also the movant “must either factually refute the affirmative defenses or establish that they are legally insufficient.” Konsuli-an v. Busey Bank, N.A., 61 So.3d 1283, 1285 (Fla. 2d DCA 2011).

We reject the Taylors’ argument that Bayview lacked standing to foreclose the mortgage. The Taylors’ affirmative defense asserted, and they argue on appeal, that the assignment of mortgage did not occur until after the complaint was filed. See Country Place Cmty. Ass’n v. J.P. Morgan Mortg. Acquisition Corp., 51 So.3d 1176, 1179 (Fla. 2d DCA 2010) (stating that the plaintiff lacked standing to bring the foreclosure action when it did not own or possess the note and mortgage when it filed the lawsuit); Jeff-Ray Corp. v. Jacobson, 566 So.2d 885, 886 (Fla. 4th DCA 1990) (determining that a complaint to foreclose a mortgage did not state a cause of action when it was filed because the assignment of mortgage to the plaintiff was dated four months after the lawsuit was filed).

But Bayview contends that its standing to foreclose derives from the allonge to the note because the mortgage follows the note. Bayview argues that when USMo-ney transferred to Bayview the note which the mortgage secured, Bayview received equitable standing to foreclose the mortgage, even without a written assignment. We agree.

Bayview alleged in its complaint that it “owns and holds said note by virtue of the endorsement/allonge.” Bayview attached copies of the note and allonge to its complaint. The note and the allonge reflect that on the same day that Joyce Taylor executed the note in favor of USMoney, USMoney in turn endorsed the note without recourse to Bayview. Before the summary judgment hearing, Bayview filed the original note and the allonge. Thus Bay-view established its status as holder of the note and its right to enforce the note. See § 671.201(20), Fla. Stat. (2005) (“ ‘Holder,’ with respect to a negotiable instrument, means the person in possession if the instrument is payable to bearer or, in the case of an instrument payable to an identified person, if the identified person is in possession.”); Mortg. Elec. Registration Sys., Inc. v. Azize, 965 So.2d 151, 153 (Fla. 2d DCA 2007) (“The holder of a note has standing to seek enforcement of the note.”); Kaminik v. Countrywide Home Loans, Inc., 64 So.3d 195, 196 (Fla. 4th DCA 2011) (affirming in part a summary final judgment of foreclosure where the plaintiff “tendered the original promissory note to the trial court, which contained a special indorsement in its favor”); Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010) (“Aurora’s possession of the original note, indorsed in blank, was sufficient under Florida’s Uniform Commercial Code to establish that it was the lawful holder of the note, entitled to enforce its terms.”), review denied, 53 So.3d 1022 (Fla.2011).

Bayview also became the equitable owner of the mortgage when USMoney endorsed the note to Bayview because the ownership of the mortgage followed the note. In Johns v. Gillian, 134 Fla. 575, 184 So. 140, 143 (1938), the Supreme Court of Florida summarized the law pertinent to the issue under review as follows:

[I]t has frequently been held that a mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt, unless there be some plain and clear agreement to the contrary, if that be the intention of the parties.

Johns stands for the proposition that a mortgage — as a mere incident to the debt it secures — follows the note unless the parties have clearly expressed a contrary intent. The First District Court of Appeal has cited Johns and other cases in support of the following proposition: “Because the lien follows the debt, there was no requirement of attachment of a written and recorded assignment of the mortgage in order for the appellant to maintain the foreclosure action.” Chem. Residential Mortg. v. Rector, 742 So.2d 300, 300-01 (Fla. 1st DCA 1998) (footnote omitted). Because ownership of the mortgage followed the note in the absence of a contrary intention and Bayview owned and held the note when it filed its lawsuit, Bayview has standing to maintain the underlying foreclosure action. See Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011) (“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage to establish standing to proceed with a foreclosure action.”).

Notably, the Taylors did not assert that the parties did not intend for the mortgage to follow the note, and they did not present any evidence in support of that proposition after Bayview filed with the trial court the original note, allonge, and mortgage. The mortgage itself reflects the parties’ intent that the mortgage would follow the note in the event of a sale. In addressing the subject of a sale or partial sale of the note in paragraph 20, the mortgage contemplates a sale of the note “together with this Security Instrument.” The note and the allonge reflect that USMoney sold the note to Bayview on the same day that the note and the mortgage were executed. The allonge also lists the “secured property address.” Thus the attachments to the complaint establish that Bayview acquired all of USMoney’s rights under both the note and the mortgage on January 4, 2006, before it filed the underlying action. Therefore, we conclude that Bayview refuted the Taylors’ affirmative defense and established its standing to foreclose the note and mortgage.

With respect to the affirmative defense of lack of notice, Bayview failed to refute this affirmative defense; it therefore prevents summary judgment in this case. Bayview made a general allegation that all conditions precedent had been performed, but the motion for summary judgment and affidavits do not negate the affirmative defense that Bayview failed to give proper notice of the default in the payments on the note and mortgage. Paragraph 22 of the mortgage, attached to the complaint, requires the lender to give the borrower notice prior to acceleration of the debt. In fact, the notice provision is the same as the one in Konsulian. See Konsulian, 61 So.3d at 1284. There, the lender failed to establish that it met the condition precedent of providing the requisite notice when the borrower raised the issue as an affirmative defense; therefore, the lender was not entitled to summary judgment. Id. at 1285; see also Goncharuk v. HSBC Mortg. Servs., Inc., 62 So.3d 680, 682 (Fla. 2d DCA 2011) (reversing summary judgment for plaintiffs failure to address in its motion for summary judgment and affidavits the affirmative defense of lack of notice); Lazuran v. Citimortgage, Inc., 35 So.3d 189, 189-90 (Fla. 4th DCA 2010) (reversing summary judgment where the plaintiff failed to refute the affirmative defense of lack of notice). For this reason, summary judgment was premature. Therefore, we reverse the final judgment of foreclosure and remand for further proceedings.

Reversed and remanded.

SILBERMAN, C.J., and NORTHCUTT and WALLACE, JJ., Concur.


text:
    Edward AUSTIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2834.
    District Court of Appeal of Florida, Fourth District.
    Nov. 9, 2011.
    David W. Collins of the Law Offices of David W. Collins, Monticello, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the denial of appellant’s post-conviction motion except as to the claim involving counsel’s failure to call witness Sullivan at trial. This claim is legally sufficient and requires an evidentiary hearing. We remand for further proceedings on this claim only. We affirm the denial of the motion in all other respects.

Affirmed in part, Reversed in part and Remanded.

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


author: EHRLICH, MERRILEE, Associate Judge. WARNER, J.,

text:
    Evan S. GORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-777.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   EHRLICH, MERRILEE, Associate Judge.

The issues in this appeal are: (1) whether the court erred by not suppressing Defendant’s pharmacy records, which police obtained without a warrant or subpoena; and (2) whether the court erred by denying Defendant’s motion to suppress his medical records and physician statements, which police obtained without a subpoena or Defendant’s authorization. We affirm as to the first issue and reverse as to the second issue.

In 2008, Defendant pled guilty to possession of a schedule II substance. The court withheld adjudication and sentenced him to eighteen months probation. In 2009, the State charged Defendant with withholding information from a practitioner and trafficking in hydrocodone. As a result of these new law violations, the State also sought to violate his probation on the 2008 case.

Defendant filed a motion to suppress his pharmacy profile (including prescribing physicians’ names), physicians’ statements, and medical records. At the suppression hearing, the parties stipulated to the following facts:

The officer had reason to believe that Defendant was committing the crime of withholding information from a physician and, as such, trafficking would ensue because the prescriptions received would have been fraudulent because of the withholding information.
The officer goes to various pharmacies, pulls patient’s profiles. From those patients’ profiles, he finds out who the prescribing doctors are. He then goes to the prescribing doctors, in this case, Dr. Gulati and Dr. Ortega, and speaks with the doctors without any subpoena or search warrant being issued. The conversations include whether or not Defendant had disclosed previous prescriptions to the doctor. The officer also pulled and reviewed various patient documents.

In the court’s order denying the motion to suppress, it stated that the officer legally obtained information from the pharmacy, and therefore, it follows that once the officer legally obtained the identity of Defendant’s prescribing doctors, the officer could legally interview and gather information from Defendant’s prescribing doctors.

As a result of the court’s ruling on Defendant’s motion to suppress, Defendant admitted the violation of probation in the 2008 case, pled nolo contendere to counts 1 and 5 in the 2009 case (the State nolle prossed counts 2, 8 and 4), and reserved his right to appeal the denial of the dispos-itive motion to suppress in both cases. Defendant filed a timely notice of appeal.

Issue 1 — Pharmacy Records

Because the facts are uncontroverted, this Court reviews de novo the lower court’s legal conclusions on the motion to suppress. Ray v. State, 40 So.3d 95, 97 (Fla. 4th DCA 2010). The First and Second District Courts of Appeal, in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009), and Gettel v. State, 449 So.2d 413, 414 (Fla. 2d DCA 1984), both have held that Section 893.07(4), Florida Statutes (2008) authorizes police to search pharmacy records without a warrant. The court in State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), stated that the right to privacy protected by Article I, Section 23, of the Florida Constitution is not absolute; and the test for a violation of this right comes from Winfield v. Division of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla.1985):

The Florida Supreme Court has adopted a test to assess the claim of an article I, section 23 privacy 'violation: First, courts must determine whether the individual possesses a legitimate expectation of privacy in the information or subject at issue. If so, the burden shifts to the State to show (a) that there is a compelling state interest warranting the intrusion into the individual’s privacy and (b) that the intrusion is accomplished by the least intrusive means.

Tamulonis, 39 So.3d at 528.

The Tamulonis court acknowledged that an individual has some expectation of privacy in his or her prescription records. See also State v. Fernandez, 36 So.3d 120, 123 (Fla. 2d DCA 2010). The State, on the other hand, has a.compelling interest in regulating controlled substances. As the Tamulonis court stated, Section 893.07, Florida Statutes, is narrowly tailored:

First, the statute only applies to controlled substance records. Second, the records do not convey information about a patient’s medical condition. Finally, such data is not available to the general public, but only to “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” § 893.07(4); see also State v. Russo, [259 Conn. 436] 790 A.2d [1132] at 1150-51 [2002] (finding that pharmacy statute safeguards privacy interests by restricting access to controlled substance records to a limited class of persons).

Tamulonis, 39 So.3d at 528.

Justice Johnson of the Vermont Supreme Court, in her dissenting opinion in State v. Welch, 160 Vt. 70, 624 A.2d 1105 (1992), eloquently explains why the disclosure and use of pharmacy records are so narrowly tailored:

Such records ‘contain extremely private and potentially embarrassing information’ about the patient. They may disclose highly personal facts concerning a person’s lifestyle, ailments, or sources of stress and anxiety. These are matters of great sensitivity that go to the heart of our concerns for privacy. This fact is recognized by the very statutory provision that permits inspection of pharmacy records, which is entitled “Records confidential.” That provision allows inspection “only to federal or state officers or their specially authorized agent whose duty it is to enforce the federal drug laws,” and forbids those who gain knowledge of any prescription from divulging such knowledge, except in connection with a prosecution.

Id. at 1116 (Johnson, J., dissenting) (internal citations omitted).

Although the Florida Supreme Court has recognized the right to privacy as a fundamental right, it has also made clear that “this constitutional provision was not intended to provide an absolute guarantee against all governmental intrusion into the private life of an individual.” Fla. Bd. of Bar Exam’rs Re: Applicant, 443 So.2d 71, 74 (Fla.1983).

Clearly, there is a balancing test as to this issue and the State’s compelling interest has been held to be paramount, but the restrictions placed upon the State address the balancing test as well. Thus, we conclude that the police may secure pharmacy records of Chapter 893 controlled substances pursuant to a criminal investigation, but not pharmacy records of all prescriptions. There is some expectation of privacy in pharmacy records. The police may obtain the permitted records without obtaining a warrant or a subpoena. Doctors’ names appear on all prescription records; hence, the police may secure doctors’ names on Chapter 893 pharmacy prescription records, as well, without a warrant or a subpoena.

Issue II — Medical Records

As to the second issue, we conclude that the trial court erred by denying Defendant’s motion to suppress his medical records and physician’s statements, which police obtained without a subpoena or Defendant’s authorization. Medical records and physician’s statements are protected by the statutory physician-patient privilege, and therefore, the State was required to get either a subpoena with court approval or prior notice to and authorization from Defendant. See §§ 456.057(6) & (7)(a), Fla. Stat. (2008).

The fact that the police had already secured doctors’ names from prescriptions at pharmacies does not waive the requirements of law. There is a danger of medical professionals willing to surrender private medical records and engage in discussions regarding private and privileged communications concerning their treatment of individuals in submission to apparent police authority.

The language in Section 456.057 is intentionally broad in protecting information from being disclosed by a health care practitioner and in assuring that the condition of a patient may not be discussed. The protection extends to all patient records. The State is not precluded from obtaining the information it seeks. Its agents must only follow the law and either seek a patient’s written authorization or the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or a search warrant.

The object of the physician-patient privilege is to encourage patients to be entirely forthcoming and candid in their statements to their treating physicians. These conversations and the records with regard thereto protect our most fundamental right, the pursuit of life itself.

Affirmed, in part and, Reversed in part.

POLEN, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I fully concur in the majority opinion. I write only to address the appellant’s brief in which Justice Denise Johnson of the Vermont Supreme Court is referred to as “he.” Justice Johnson, a well-respected jurist, who retired this September, is a personal and professional acquaintance of mine, so I was attuned to the error in the brief immediately.

I point out the inappropriate use of the male pronoun, because too often I see female jurists referred to as males. For instance, many times I noted Judge Winifred Sharp of the Fifth District Court of Appeal also referred to with a male pronoun.

It is easy enough to find the gender of a judge, either from Westlaw or LexisNexis, or by going to a court’s website and finding the judge’s biography. In this day and age, mistakes like this should not be made and it shows inattention in brief-writing that should be avoided. My advice is that if the lawyer does not wish to take the time to find out the gender of the judge being quoted in the brief, then no personal pronouns should be used.


text:
    Omar MIRANDA, Appellant, v. AZUL PLASTERING CORP. and The Hartford, Appellees.
    No. 1D11-2101.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Kimberly J. Fernandes of Kelly, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying all claims on statute of limitations grounds. Claimant raises two points on appeal. We affirm the argument that entry of a prior order requiring the Employer/Carrier (E/C) to pay a bill revived the claim despite the statute of limitations, as that argument was not preserved for appellate review, and, even if preserved, would lack merit. See Medpartners/Diagnostic Clinic Med. Group, P.A. v. Zenith Ins. Co., 23 So.3d 202, 204 (Fla. 1st DCA 2009) (holding 1994 amendments to Workers’ Compensation Law preclude revival of limitations period once it has run); cf. Dixie Transp., Inc. v. Kellom, 507 So.2d 757 (Fla. 1st DCA 1987) (holding, under pre-1994 law, that statute of limitations does not allow party to avoid obligation to comply with previous order). We find merit in Claimant’s other argument, asserting that the E/C failed to prove Claimant had actual notice of the statute of limitations.

Claimant had a compensable accident on June 10, 2003, but the E/C did not give him notice of the statute of limitations at that time as contemplated by section 440.185(4), Florida Statutes. Claimant last received benefits on June 9, 2008. The E/C mailed Claimant notice of the statute of limitations on April 14, 2009. Claimant filed a petition for benefits on July 2, 2010, and the E/C defended by alleging the limitations period set forth in section 440.19, Florida Statutes, had run. Claimant, in turn, alleged the E/C was estopped from raising that defense, because it had not provided statutory notice of the statute of limitations. The JCC found Claimant received actual notice, and did not prove estoppel by clear and convincing evidence.

Section 440.19(4) outlines the standards of proof and burdens of proof applicable in such a situation:

If a claimant contends that an employer or its carrier is estopped from raising a statute of limitations defense and the carrier demonstrates that it has provided notice to the employee in accordance with s. 440.185 and that the employer has posted notice in accordance with s. 440.055, the employee must demonstrate estoppel by clear and convincing evidence.

“We read the statute to say that ... [t]he burden of proof on the claimant is a preponderance of the evidence, unless the E/C has complied with both sections 440.185 and 440.055, in which case the claimant has a higher burden of proof — clear and convincing evidence.” Crutcher v. Sch. Bd. of Broward County, 834 So.2d 228, 229-30 (Fla. 1st DCA 2002). When a claimant proves estoppel by preponderance of the evidence, the burden shifts to the E/C to show the claimant “had actual knowledge” of the limitations period. Fontanills v. Hillsborough County Sch. Bd., 913 So.2d 28, 30 (Fla. 1st DCA 2005).

In this case, it is uncontested that the E/C did not provide notice in accordance with section 440.185; therefore, the appropriate standard of proof by which Claimant could establish estoppel is preponderance of the evidence. Nonetheless, the JCC here applied the standard of clear and convincing evidence. This was error, as the E/C concedes.

The E/C asserts the error is harmless because the E/C proved, and the JCC found, Claimant had actual knowledge of the statute of limitations. The final order reveals the JCC based that conclusion on several findings: that the E/C mailed notice of the statute of limitations to a Miami address in 2009; that Claimant had moved away from that mailing address at some earlier point in time; that the mailing was not returned as undeliverable; and that Claimant’s mail was, for a time, forwarded from that address to Claimant. Because it is not clear the mailing was forwarded to Claimant, these findings are insufficient, as a matter of law, to establish actual knowledge. We remand for application of the correct standard of proof and, if necessary, clarification of findings concerning the change in Claimant’s residency.

REVERSED and REMANDED.

BENTON, C.J., VAN NORTWICK, and SWANSON, JJ„ concur.


author: PER CURIAM. BENTON, C.J.,

text:
    Sherry KEETON, Appellant, v. KENTUCKY FRIED CHICKEN and Gallagher Bassett, Appellees.
    No. 1D10-5789.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.

      Harold E. Barker of Dicesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Jeffrey E. Appel of the Appel Law Group, Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the Claimant appeals an order of the Judge of Compensation Claims denying all claims related to the Claimant’s carpal tunnel syndrome on the basis of testimony from the expert medical advisor that the carpal tunnel syndrome was not work-related. For the following reasons, we affirm.

The Workers’ Compensation Law provides that a claimant and a carrier may each select an independent medical examiner, who “may not render an opinion outside his or her area of expertise, as demonstrated by licensure and applicable practice parameters.” § 440.13(5)(a), Fla. Stat. (2005). The Law provides further that “[i]f there is a disagreement in the opinions of the health care providers, ... the judge of compensation claims shall ... order the [claimant] to be evaluated by an expert medical advisor.” § 440.1S(9)(e), Fla. Stat. (2005).

Here, an authorized treating physician, Dr. DiGeronimo, opined that the carpal tunnel syndrome was not work-related. Nonetheless, the Employer/Carrier sought an independent medical examiner, who then opined that the carpal tunnel syndrome was caused by work. The Employer/Carrier then moved for appointment of an expert medical advisor. The Judge of Compensation Claims appointed one, who opined the carpal tunnel syndrome was not work-related.

The claimant opposed the appointment of the expert medical advisor, arguing the Employer/Carrier was bound by the opinion of its independent medical examiner. In support, the Claimant cited subsection (5)(b) of section 440.13, which provides in part that “[e]ach party is bound by his or her selection of an independent medical examiner, including the selection of the independent medical examiner in accordance with s. 440.134 and the opinions of such independent medical examiner.” The Judge of Compensation Claims rejected the claimant’s argument, reasoning the limitation in subsection (5)(b) precludes serial independent medical examinations and does not preclude application of subsection (9)(e), and subsection (9)(c), in turn, does not contain an exception to its mandatory language based on the “bound” limitation in subsection (5)(b). We agree.

The Judge of Compensation Claims also, correctly, distinguished Dawson v. Clerk of Circuit Court—Hillsborough County, 991 So.2d 407 (Fla. 1st DCA 2008). In Dawson, an expert medical advisor was appointed to resolve a conflict between two doctors on causation of a shoulder injury and the claimant argued that one doctor’s opinion was inadmissible and lacked a proper foundation. 991 So.2d at 410. This court reversed, holding that the doctor’s testimony could not be excluded under section 440.13(5)(e), Florida Statutes, because he was authorized to treat the claimant (specifically, her wrist), but there was no actual conflict in the medical opinions because that doctor was not authorized to treat the shoulder, did not examine the shoulder, and did not review any studies or records concerning the shoulder other than one letter from the claimant’s previous doctor to a third doctor noting the claimant’s complaints of shoulder pain. By contrast, in the present case Dr. Di-Geronimo both examined the claimant’s wrists and reviewed results of testing on her wrists.

Accordingly, we conclude the Judge of Compensation Claims did not err in appointing the expert medical advisor.

Affirmed.

PADOVANO and LEWIS, JJ., concur. BENTON, C.J., concurs with opinion.

BENTON, C.J.,

concurring.

“If there is disagreement in the opinions of the health care providers, ... the judge of compensation claims shall, upon his or her own motion or within 15 days after receipt of a written request by either the injured employee, the employer, or the carrier, order the injured employee to be evaluated by an expert medical advisor.” § 440.13(9)(c), Fla. Stat. (2005). See Amos v. Gartner, Inc., 17 So.3d 829, 831 (Fla. 1st DCA 2009) (“If there is a disagreement in the opinions of health care providers, the legislature has mandated that the JCC shall appoint an EMA.”); Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1356 (Fla. 1st DCA 1997) (“The requirements of section 440.13(9)(c), Florida Statutes (1995), are mandatory and binding on the judge of compensation claims.”).

In the present case, the disagreement between Dr. DiGeronimo (an authorized treating physician), who opined Ms. Kee-ton’s carpal tunnel syndrome was not related to her 2006 work accident, and the contrary opinions of Dr. Martinez, Dr. Simon, and Dr. Rayhack (an authorized treating physician, Ms. Keeton’s independent medical examiner, and the employer/carrier’s independent medical examiner, respectively), required the judge of compensation claims to appoint an expert medical advisor.


author: KHOUZAM, Judge.

text:
    Paul WITT, Appellant/Cross-Appellee, v. Tonya A. WITT, Appellee/Cross-Appellant.
    No. 2D10-857.
    District Court of Appeal of Florida, Second District.
    Nov. 18, 2011.

      Tarya A. Tribble of Tribble Law Center, P.A., Riverview, for Appellant/Cross-Ap-pellee.
    Marina R. Taylor of Marina Taylor, P.A., Riverview, for Appellee/Cross-Appel-lant.
   KHOUZAM, Judge.

Paul Witt, the Former Husband, and Tonya A. Witt, the Former Wife, timely appeal and cross-appeal the final judgment of dissolution of marriage. Because the equitable distribution scheme created in the final judgment is unclear, we reverse and remand for the trial court to appropriately delineate its equitable distribution scheme. On remand, the trial court shall also make statutorily required findings regarding alimony.

The parties in this case were married on August 17, 2002, and the dissolution of marriage action was filed on November 21, 2005. The final hearing was held on May 6, 2009. The parties stipulated to some facts while others remained in dispute. The appellate record does not contain a transcript of this hearing, though it does contain exhibits introduced at the hearing as well as the final judgment. In the final judgment, the circuit court made findings regarding the equitable distribution of property and debts.

This court reviews the circuit court’s findings regarding equitable distribution for an abuse of discretion. See Canakaris v. Canakaris, 382 So.2d 1197, 1202-03 (Fla.1980). Section 61.075, Florida Statutes (2005), governs the distribution of marital assets and liabilities. Subsection (1) requires the court to set apart each spouse’s nonmarital assets and liabilities and then distribute the marital assets and liabilities with the presumption that the distribution be equal. That section also provides various factors that the court may take into account when justifying an unequal distribution. Subsection (3) provides that in any contested dissolution action, regardless of whether the distribution is equal or unequal, the court must make specific written findings to show that the distribution is supported by competent, substantial evidence. The findings must reference the factors listed in subsection (1) as well as subsection (3) of the statute. A final judgment which fails to include the statutory requirements is difficult to review and requires reversal. Prest v. Tracy, 749 So.2d 538, 539 (Fla. 2d DCA 2000).

While a trial court has broad discretion to fashion an equitable distribution scheme, it must support its distribution with specific factual findings. See § 61.075(1), Fla. Stat.; Prest, 749 So.2d at 539-40; see also Santiago v. Santiago, 51 So.3d 637, 638 (Fla. 2d DCA 2011). Here, the circuit court did not make specific findings regarding several issues. First, the court took testimony and found that the parties’ contingent tax liability amounted to $100,000 without assigning this liability to either of the parties. Second, the court did not include the parties’ stipulation regarding the value of the premarital portion of business assets or make clear findings regarding the remaining assets about which the parties disagreed. Regrettably, the final judgment did not delineate the equitable distribution scheme to show what property the court found to be marital, what property it found to be nonmarital, and which party should receive each item as required by section 61.075(1). We must, therefore, reverse the final judgment distributing the parties’ marital assets. On remand, the trial court shall make specific findings that support the equitable distribution scheme. Prest, 749 So.2d at 539-40.

On remand, the trial court also must make factual findings regarding its denial of alimony as required by section 61.08, Florida Statutes (2011). At the time the final judgment in this case was entered, section 61.08 read as follows:

(2) In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the nonmarital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.
The court may consider any other factor necessary to do equity and justice between the parties.

§ 61.08, Fla. Stat. (2009) (emphasis added). Here, the court simply denied the Former Wife’s request for alimony because the Former Husband was going to make an equalizing payment and this was a short-term marriage. However, the trial court did not address all of the appropriate factors required by the 2009 statute.

Accordingly, we reverse and remand for the court to create a proper equitable distribution scheme in accordance with section 61.075. See Guobaitis v. Sherrer, 18 So.3d 28, 33 (Fla. 3d DCA 2009) (“In light of our holding reversing the equitable distribution of the parties’ marital assets and liabilities and remanding for reconsideration, the trial court shall reconsider the entire distribution scheme, including the award of alimony, both permanent periodic and lump sum; the equitable distribution of the marital assets and liabilities; and child support.”). On remand the court shall also make appropriate findings regarding alimony as required by section 61.08. Because section 61.08 is procedural in nature, on remand the court should apply the current version of the statute. See, e.g., R.A.M. of S. Fla., Inc. v. WCI Cmtys., Inc., 869 So.2d 1210, 1216 (Fla. 2d DCA 2004).

Reversed and remanded with directions.

NORTHCUTT and VILLANTI, JJ., Concur.


author: COHEN, J.

text:
    Stephen LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2080.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Stephen Lanier was arrested and charged with possession of a controlled substance pursuant to section 893.13(6)(a), Florida Statutes (2009), as well as resisting an officer without violence. Lanier filed a motion to suppress, alleging that he was seized without a warrant or probable cause, and therefore the subsequent search of his person was unauthorized under the Fourth Amendment to the United States Constitution. Following the denial of his motion to suppress, Lanier entered into a negotiated plea, specifically reserving the right to appeal the trial court’s ruling.

Although not raised below, in addition to challenging the denial of his motion to suppress, on appeal Lanier also challenges the constitutionality of Chapter 893, citing Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11, 802 F.Supp.2d 1289, 2011 WL 3236040 (M.D.Fla.2011).

Finding no error, we affirm. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

AFFIRMED.

SAWAYA and LAWSON, JJ., concur.


text:
    Ralph ADKINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1183.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Ralph Adkins, timely appeals a judgment and sentence finding him in violation of his community control. Adkins contends that the trial court failed to make the required specific findings as to the provisions of his community control that were violated. See Young v. State, 4 So.3d 1265 (Fla. 5th DCA 2009); Campbell v. State, 972 So.2d 263 (Fla. 5th DCA 2008); Patt v. State, 876 So.2d 1278 (Fla. 5th DCA 2004). The State concedes error. Therefore, the matter is remanded to the trial court to make specific findings as to which provisions of community control were violated by Adkins.

REVERSED and REMANDED with instructions.

SAWAYA, PALMER and JACOBUS, JJ., concur.


author: MONACO, J.

text:
    Ryan PAGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-493.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Ryan Page, was convicted of a third-degree felony and three misdemeanors. He was sentenced to time served on the misdemeanors and thirty months imprisonment, followed by thirty-six months probation on the felony. He asserts that his sentence exceeds the maximum permitted. Mr. Page timely filed a motion to correct illegal sentence, but no order was rendered on the motion within the time permitted by rule 3.800(b), Florida Rules of Criminal Procedure, the motion was deemed to be denied, and this appeal followed. We agree with Mr. Page that the sentence exceeds the permissible maximum.

When a trial court sentences a criminal defendant to a term of imprisonment followed by a term of probation, the aggregate of the two cannot exceed the statutory maximum. See Gonzales v. State, 816 So.2d 720, 721 (Fla. 5th DCA 2002). The maximum sentence for a third-degree felony is five years imprisonment. See § 784.082(3)(d), Fla. Stat. (2010). The sentence imposed on Mr. Page exceeds the maximum by six months. The State properly concedes that we should reverse and remand for a new sentencing within the statutory maximum.

Accordingly, we affirm the judgment in all respects, and reverse the sentence. We remand for a new sentencing hearing and the imposition of a lawful sentence.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions.

PALMER and COHEN, JJ., concur.


text:
    Johnnie E. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2391.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Nancy A. Daniels, Public Defender, Terry Carley and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Johnnie E. Thompson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Johnnie E. Thompson appeals his judgment of conviction and sentence for sale of a controlled substance and possession of a controlled substance with intent to sell or deliver. We affirm the judgment of conviction but vacate the sentence as corrected.

Upon a verdict of guilt, appellant was sentenced on count I, sale of a controlled substance, to 30 years as a habitual felony offender. For count II, possession with intent to sell or deliver, appellant was also sentenced to 30 years as a habitual felony offender. These sentences were ordered to be served concurrently. Appellate counsel filed a motion to correct sentence, pursuant to rule 3.800(b)(2), Florida Rules of Criminal Procedure, asserting appellant could not be sentenced as a habitual felony offender as to count II. The trial court agreed and resentenced appellant to 15 years on count II. However, the corrected scoresheet provided that count II was to be served consecutively to count I, not concurrently. It is not apparent from this record whether the order that the sentences be served consecutively was an unintended error or not, but this sentence cannot stand. As this court has explained, a trial court, on resentencing pursuant to a motion to correct an illegal sentence, may “impose consecutive sentences in order to effect the intent of the original sentencing court, as long as the newly imposed sentence [is] not longer than the originally imposed sentence.” Everett v. State, 824 So.2d 211, 213 (Fla. 1st DCA 2002); see also Farrar v. State, 42 So.3d 265 (Fla. 5th DCA 2010). Here, the total sentence imposed under the new sentencing scheme is 45 years, whereas the originally imposed sentence provided for a total sentence of 30 years. Accordingly, the order of January 12, 2011, resentencing appellant to a 15-year term consecutive to count I is vacated, and the cause is remanded to the trial court for entry of a corrected sentence consistent with this opinion.

Appellant was directed to file a supplemental brief addressing the sentencing issue discussed infra. In the supplement brief, appellant argued that his convictions were unconstitutional and urged this court to adopt the reasoning of Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 2011 WL 3236040 (M.D.Fla.2011). For the reasons explained in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011), we reject the reasoning and holding in Shelton.

AFFIRMED in part, REVERSED in part and REMANDED for entry of a corrected sentence.

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


text:
    Rudolph HARRIS, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-2029.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Rudolph Harris, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Maricruz R. Fincher, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of an order denying his amended petition for writ of mandamus in which he challenged a disciplinary action that resulted in a forfeiture of gain time. Thus, his claims in this proceeding constituted a collateral criminal proceeding. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). As such, there is no authority for the imposition of a lien. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). Accordingly, we treat Petitioner’s challenge to the order imposing a lien for costs and fees incurred in this appellate proceeding as a motion for review pursuant to Florida Rule of Appellate Procedure 9.430 and grant the motion. On remand, the circuit court is instructed to direct the reimbursement of any funds that have been withdrawn from Petitioner’s inmate trust account to satisfy the improper appellate fee lien order. See Parker v. McDonough, 958 So.2d 1108 (Fla. 1st DCA 2007). We further remand for the circuit court to readdress the validity of the lien imposed for filing fees and costs associated with the mandamus proceeding based on the filing of the amended petition as contemplated in the circuit court’s previous order. We deny the petition for writ of certiorari on the merits as it relates to the remaining issues.

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


text:
    Jeramie IRVIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5346.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Jeramie Irvin, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction, the appeal is hereby dismissed for lack of jurisdiction. The dismissal is without prejudice to any right the appellant may have to seek a belated appeal. See Funchess v. Moore, 766 So.2d 348 (Fla. 1st DCA 2000).

HAWKES, MARSTILLER, and RAY, JJ., concur.


text:
    Antonio C. HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3430.
    District Court of Appeal of Florida, First District.
    Nov. 23, 2011.
    Antonio C. Hams, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. R. Civ. P. 1.630; Zuluaga v. State Dep’t of Corrections, 32 So.3d 674 (Fla. 1st DCA 2010).

HAWKES, CLARK, and SWANSON, JJ., concur.


author: MORRIS, Judge.

text:
    Toby J. BARNES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2718.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.
    Toby J. Barnes, pro se.
   MORRIS, Judge.

Toby J. Barnes appeals the summary denial of his motion for additional jail credit filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for the postconviction court to correct Barnes’s sentencing documents and award additional jail credit.

On October 28, 1999, Barnes pleaded nolo contendere to robbery with a deadly weapon and was sentenced to 84 months’ imprisonment, with 267 days’ jail credit, followed by 5 years’ probation. After being released from prison, Barnes violated his probation and was resentenced to 10 years’ imprisonment with 22 days’ jail credit for time served while awaiting re-sentencing. In his motion to correct sentence, Barnes claims that upon revocation of his probation, the trial court granted him only 22 days’ credit for time served while awaiting resentencing on the violation of probation (VOP) and failed to include credit for the 267 days served in jail prior to the imposition of the original sentence, to which he is lawfully entitled. We agree.

Citing to State v. McBride, 848 So.2d 287 (Fla.2003), the postconviction court denied the motion as successive. The post-conviction court found that the issues raised in the current motion were the same as those raised and denied in Barnes’s previous motion for clarification of sentence, which was construed as a motion for additional jail credit pursuant to rule 3.800(a). In the prior order entered in 2010, the postconviction court found that Barnes had been awarded 267 days’ jail credit when he was originally sentenced to the probationary split sentence and that he was not entitled to the same award of jail credit upon revocation of his probation.

Rather than appealing the postconviction court’s 2010 denial order, Barnes followed the court’s directive and sought administrative review with the Department of Corrections (DOC) and then filed for extraordinary relief against the DOC. In response to Barnes’s petition for writ of mandamus, the DOC maintained that the trial court’s order only called for credit for time previously served in the DOC prior to sentencing. The DOC correctly stated that because the VOP sentencing court never awarded Barnes credit for the time he spent in county jail prior to the original sentence, it was beyond the DOC’s authority to award such credit and that Barnes, therefore, had to seek recourse with the postconviction court followed by appellate review of any adverse ruling. See Sutton v. State, 838 So.2d 616, 617 (Fla. 2d DCA 2003) (“Although the trial court may delegate to the [DOC] the task of determining the correct amount of prison credit when a defendant is resentenced after violating the probationary portion of a probationary split sentence, it is the responsibility of the trial court to order that defendants receive the prison credit to which they are entitled.”).

The attached record shows that Barnes is entitled to 267 additional days’ jail credit and that the postconviction court incorrectly denied his motion. “[A] probation violator sentenced to prison is entitled to credit for time served in jail awaiting the original probationary sentence.” Williams v. State, 12 So.3d 330, 330 (Fla. 2d DCA 2009) (citing Walker v. State, 543 So.2d 343, 344 (Fla. 1st DCA 1989)); Powell v. State, 763 So.2d 364, 366 (Fla. 4th DCA 1998) (“[A] defendant is entitled to credit for time spent in custody on the violation of probation charges, Morgan v. State, 528 So.2d 991 (Fla. 4th DCA 1988), as well as jail credit earned prior to his initial sentencing.”). The attached VOP judgment and sentence shows that Barnes is correct that he was awarded only 22 days’ credit for jail time served pending resentencing for the VOP along with credit for all time previously served in the DOC prior to sentencing. The trial court failed to properly award or order the DOC to grant Barnes credit for the 267 days that he spent in jail prior to the imposition of the probationary split sentence, and the DOC did not include such credit in Barnes’s time-served calculation. See Aumiller v. State, 14 So.3d 256, 257 (Fla. 5th DCA 2009); see also Sutton, 838 So.2d at 617. Because the failure to grant proper jail credit would result in a manifest injustice, Barnes’s motion is not procedurally barred as successive. See Bronk v. State, 25 So.3d 701, 703 (Fla. 2d DCA 2010) (“The fact that this court affirmed a denial of his claim in a previous postconviction motion does not preclude relief when the award of jail credit is clearly incorrect as a matter of law and a failure to correct that error would result in manifest injustice.” (citing McBride, 848 So.2d at 291)). We therefore reverse and remand for the postcon-viction court to correct the sentencing documents to reflect credit for the time Barnes spent in jail awaiting the original sentence.

Reversed and remanded.

WHATLEY and ALTENBERND, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Charles MAPP, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4485.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.

      James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

CASANUEVA, Judge.

Charles Mapp appeals his habitual felony offender sentences and an order of restitution resulting from convictions for burglary of a conveyance and grand theft. Based on the following discussion, we affirm in part and reverse in part and remand for resentencing.

For various convictions in the Tenth Judicial Circuit in and for Polk County in two cases, circuit court case numbers CF06-9191 and CF06-9192, detailed in Mapp v. State, 18 So.3d 33 (Fla. 2d DCA 2009), approved in part, quashed in part, 71 So.3d 776 (Fla.2011), the trial court sentenced Mr. Mapp as a habitual felony offender (HFO) and ordered him to pay a substantial sum as restitution to his victims. Mr. Mapp subsequently filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b) in which he sought removal of the HFO designation in the sentences in both cases (four counts altogether, two counts concurrent with each other but consecutive to the other two concurrent counts) and amendment of the amount of restitution. Because the State had failed to timely notify Mr. Mapp that it would seek HFO sentences before he pleaded, the State conceded that the HFO designation should be stricken. In an out-of-time order, the trial court granted him relief pursuant to his motion and struck both the HFO designation in his sentences and the order of restitution. Realizing that the out-of-time order deemed his rule 3.800(b) motion denied, Mr. Mapp appealed.

Based on our reading of Jackson v. State, 983 So.2d 562 (Fla.2008), this court affirmed Mr. Mapp’s appeal, holding that neither the habitualization of his sentences nor the alleged error in the restitution order was cognizable on a rule 3.800(b) motion. Mapp, 18 So.3d at 37. This affir-mance thus left him with a habitual offender designation in his sentences and an order of substantial restitution. When Mr. Mapp sought further review in the supreme court, that court quashed in part and approved in part. 71 So.3d 776. Concluding that we had too narrowly construed its Jackson opinion as related to the improper habitualization issue, the supreme court “quash[ed] that portion of [this court’s] decision ... that concluded that Mapp’s claim was not properly preserved and remand[ed] for reinstatement of the trial court’s order removing the HFO designation from his sentence. [The court] approve[d our] affirmance of the denial of Mapp’s second claim relating to the order of restitution.” Mapp, 71 So.3d 776.

Based on the supreme court’s opinion in Mapp, we now re-affirm the denial of Mr. Mapp’s rule 3.800(b) motion as it relates to the order of restitution— i.e., the restitution order as originally imposed shall remain in effect — because that claim is not cognizable on a rule 3.800(b) motion as we explained in Mapp, 18 So.3d at 37, and as the supreme court noted, 71 So.3d at 778-781. But we reverse that part of the order that denied Mr. Mapp relief as it relates to the HFO designation in the sentences imposed in case numbers CF06-9191 and CF06-9192. We remand with instructions to reinstate only that part of the trial court’s order that struck the HFO designation from all sentences. In all other respects, the sentences in these two cases shall remain as originally imposed.

Affirmed in part, reversed in part, and remanded.

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

      . The trial court’s configuration of Mr. Mapp’s HFO sentences in both cases — two counts concurrent but consecutive to the other two concurrent counts — resulted in a total sentence of twenty years' incarceration. See Mapp, 18 So.3d at 35.

      . Although Mr. Mapp’s rule 3.800(b) motion referenced both circuit court case number CF06-9191 and number CR06-9192, the trial court's out-of-time order only mentions the former. The supreme court's holding and our disposition here must be applied to both circuit court cases on remand because Mr. Mapp’s motion preserved the issue in both cases in his rule 3.800(b) motion despite the trial court’s oversight.

      .After correction on remand, Mr. Mapp’s sentencing scheme should total fifteen years instead of the twenty as originally configured.


author: WALLACE, Judge.

text:
    Derrick R. CHASE, a/k/a Derrick Ryan Chase, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5675.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.

      James Marion Moorman, Public Defender, and Jack W. Shaw, Jr., Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Derrick R. Chase appeals his judgment and sentence for aggravated battery with great bodily harm and the use of a deadly weapon following a jury trial. He raises two arguments on appeal. First, Mr. Chase challenges the circuit court’s exclusion of certain impeachment evidence about a State witness. This argument is without merit and does not warrant further discussion.

Mr. Chase also argues that the circuit court improperly reclassified his offense from a second-degree felony to a first-degree felony under section 775.087(1), Florida Statutes (2009). The circuit court reclassified the offense under the statute based upon the use of a weapon during the offense. However, the evidence shows that only Mr. Chase’s codefendant possessed and used the weapon during the offense. On appeal, the State concedes error. We agree with the parties that the circuit court erred in reclassifying Mr. Chase’s offense. “[W]hen a defendant is charged with a felony involving the ‘use’ of a weapon, his or her sentence cannot be enhanced under section 775.087(1) without evidence establishing that the defendant had personal possession of the weapon during the commission of the felony.” State v. Rodriguez, 602 So.2d 1270, 1272 (Fla.1992); see also Porter v. State, 737 So.2d 1119, 1119 (Fla. 2d DCA 1999) (citing Rodriguez for the proposition “that section 775.087(1) does not permit vicarious enhancement”).

Accordingly, we affirm Mr. Chase’s conviction for aggravated battery with great bodily harm and the use of a deadly weapon. On remand, the circuit court shall correct the judgment to reflect Mr. Chase’s conviction for a second-degree felony. We reverse Mr. Chase’s sentence and remand for resentencing without reclassification under section 775.087(1).

Affirmed in part and reversed and remanded in part.

SILBERMAN, C.J., and MORRIS, J., Concur.


text:
    Shaun ALMODOVAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2652.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.
    Shaun Almodovar, pro se.
   KHOUZAM, Judge.

Shaun Almodovar appeals the summary dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Almodovar alleges that he entered a negotiated plea in exchange for a four-year sentence with a three-year mandatory minimum to run concurrent and coterminous to an earlier four-year prison sentence from Okeechobee County and that the court imposed a sentence in violation of that agreement. Almodovar previously brought this claim as a “motion for enforcement of plea contract” which was denied by the postconviction court. Almodovar v. State, 56 So.3d 898 (Fla. 2d DCA 2011). On appeal, this court observed that the only avenue for enforcement of a plea agreement is rule 3.850 and remanded for the postconviction court to dismiss the motion with leave for Almodovar to file a properly sworn motion within thirty days of its order. Id. at 899.

In response, Almodovar filed the present motion containing an “unnotarized oath,” through which Almodovar avers that “all statements are true to the best of my knowledge.” This oath is inadequate. See Miller v. State, 848 So.2d 401, 402 (Fla. 2d DCA 2003) (citing Braun v. State, 789 So.2d 1250, 1251 n. 1 (Fla. 4th DCA 2001) (holding that an oath in which the defendant swears the statements contained in the motion are true “to the best of my knowledge and belief’ is inadequate for the purposes of rule 3.850)). The postcon-viction court dismissed the motion without prejudice, noting that time remained under the two-year limitation of rule 3.850 for Almodovar to file a facially sufficient motion. Because the dismissal was without prejudice, this order is a nonfinal, nonap-pealable order. Brown v. State, 36 So.3d 186, 187 (Fla. 2d DCA 2010).

This court has previously expressed its concern with the practice of dismissing a postconviction motion for facial insufficiency without specifying a reasonable time limit within which to amend. Id. Because Almodovar’s two-year time period for filing a rule 3.850 motion has now expired, we dismiss this appeal without prejudice for Almodovar to file an amended motion within thirty days of the date this opinion becomes final. See Spera v. State, 971 So.2d 754, 761 (Fla.2007); Herron v. State, 34 So.3d 206, 206 (Fla. 2d DCA 2010); Lawrence v. State, 987 So.2d 157, 159 (Fla. 2d DCA 2008). If the post-conviction court again denies the claim, it must attach to its order portions of the record that conclusively refute Almodo-var’s allegations.

Dismissed.

ALTENBERND and WHATLEY, JJ„ Concur.


text:
    Frankie BROWN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5114.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.
    Frankie Brown, Jr., pro se.
   PER CURIAM.

Frankie Brown, Jr., in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), alleges that his appellate counsel was ineffective in failing to argue that section 893.13, Florida Statutes (2008), is unconstitutional on its face based on the reasoning of the Federal District Court in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), which held that the statute improperly eliminated mens rea as an element of a drug offense. In this instance, the direct appeal mandate issued on December 12, 2010, which was six months prior to the issuance of Shelton. “The ineffectiveness of appellate counsel cannot be based upon the failure of counsel to assert a theory of law which was not at the time of the appeal fully articulated or established in the law.” Brown v. State, 25 So.3d 78, 80 n. 3 (Fla. 2d DCA 2009) (quoting Alvord v. State, 396 So.2d 184, 191 (Fla.1981)). Accordingly, we deny relief.

Petition denied.

ALTENBERND, CASANUEVA, and KELLY, JJ., Concur.


author: HAWKES, J.

text:
    AGENCY FOR HEALTH CARE ADMINISTRATION, Appellant, v. MVP HEALTH, INC., Appellee.
    No. 1D11-1045.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.

      Dwight 0. Slater,- Senior Attorney, and Tracy Lee Cooper and Richard J. Saliba, Assistant General Counsels, Tallahassee, for Appellant.
    Jay Adams of Broad and Cassel, Tallahassee, for Appellee.
   HAWKES, J.

This appeal concerns whether the Division of Administrative Hearings (DOAH) properly found that MVP Health, Inc. (MVP) was entitled to attorney's fees and costs under section 57.111, Florida Statutes (2010). MVP requested fees because it had successfully challenged a decision made by the Agency, for Health Care Administration (AHCA).

In particular, AHCA — the state agency responsible for licensing home health care facilities — had withdrawn an application for licensure filed by MVP as incomplete. AHCA rejected the application as it found MVP had provided insufficient information to verify its current controlling interests, and had lost its accreditation.

MVP challenged the withdrawal of its application to DOAH. Following a hearing before an Administrative Law Judge (ALJ), the matter was referred back to AHCA, which issued an order stating:

The evidence presented in this matter demonstrates that the Agency erroneously found [MVP’s] initial licensing application to be incomplete. In actuality the [ ] application was complete, and [MVP] met all the requirements for li-censure at the time the application was submitted. Thus, the Agency should have approved [MVP’s] licensure application.

After receiving this favorable order, MVP moved for attorney’s fees pursuant to section 57.111(4)(a), Florida Statutes (2010). AHCA objected to the fees request, arguing that its concerns over MVP’s ownership and accreditation provided “substantial justification” for issuing the Notice of Withdrawal. DOAH disagreed with AHCA. Following another evi-dentiary hearing focusing exclusively upon the fees issue, DOAH issued the order on appeal awarding attorney’s fees and costs to MVP under section 57.111(4)(a). We reverse.

The “Substantial Justification” Standard

Section 57.111(4)(a) states fees may be awarded in the following circumstances:

Unless otherwise provided by law, an award of attorney’s fees and costs shall be made to a prevailing small business party in any adjudicatory proceeding or administrative proceeding pursuant to chapter 120 initiated by a state agency, unless the actions of the agency were substantially justified or special circumstances exist which would make the award unjust.

(emphasis added). Section 57.111(4)(a) states that a state agency may avoid fees if its action was “substantially justified.” It is the burden of the state agency to show that this exception applies. See Helmy v. Dep’t of Bus. & Prof'l Regulation, 707 So.2d 366, 368 (Fla. 1st DCA 1998). Here, AHCA claims two facts “substantially justified” its decision to issue the Notice of Withdrawal: (1) the ongoing litigation over MVP’s ownership; and (2) its concern over MVP’s accreditation. We agree.

An action is “substantially justified” if the state agency had a “reasonable basis in law and fact” to initiate it. § 57.111(3)(e), Fla. Stat. (2010). This Court has found an agency cannot satisfy the “substantial justification” standard simply by showing an action was “not frivolous.” This is because “while governmental action may not be so unfounded as to be frivolous, it may nonetheless be based on such an unsteady foundation factually and legally as not to be substantially justified.” Dep’t of Health & Rehab. Servs. v. S.G., 613 So.2d 1380, 1386 (Fla. 1st DCA 1993). On the other hand, the standard is not so strict as to require the agency to demonstrate that its action was correct. Id., quoting McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.1983) (stating the government need not have a “necessarily correct basis [] for the position that it took”). The “substantial justification” standard lies between these two extremes. The closest approximation is that if a state agency can present an argument for its action “ ‘that could satisfy a reasonable person[,]’ ” then that action should be considered “substantially justified.” Helmy, 707 So.2d at 368, quoting Pierce v. Underwood, 487 U.S. 552, 565, 108 S.Ct. 2541, 101 L.Ed.2d 490 (1988).

An additional consideration when evaluating an agency’s action under section 57.111 is that the inquiry is limited only to whether the agency had a “reasonable basis in law and fact at the time” it took the action. § 57.111(3)(e), Fla. Stat. (2010) (emphasis added). The reviewing body— whether DOAH or a court—may not consider any new evidence which arose at a fees hearing, but must focus exclusively upon the information available to the agency at the time that it acted. See Dep’t of Health, Bd. of Physical Therapy Practice v. Cralle, 852 So.2d 930, 932 (Fla. 1st DCA 2003) (criticizing an ALJ for being “influenced by consideration of evidence which was presented at [a fees] hearing rather than being focused solely on whether the [agency’s underlying] decision had a reasonable basis in law and fact”).

Accordingly, the question is whether there was a reasonable basis in law and fact for AHCA’s decision to withdraw MVP’s application, based on the information available to AHCA at the time of the withdrawal.

AHCA’s concern over MVP’s ownership

At the time it was reviewing MVP’s license application, AHCA knew the controlling statute required the application to include the names, addresses, and social security numbers of each individual with a controlling interest in MVP. See § 408.806(l)(a)(4), Fla. Stat. (2010). AHCA also knew from the license application itself that Rey Gomez claimed to be the sole owner of MVP. However, MVP had included with its license application a letter informing AHCA of litigation contesting Gomez’s sole ownership claim. The letter promised to keep AHCA advised as to the lawsuit’s status. When AHCA later asked MVP to update the status of the dispute, MVP simply reiterated its claim that Gomez was its exclusive owner and stated that the litigation was continuing.

Considering the content of the letter, a reasonable person might believe the application did not contain all of the information required concerning MVP’s ownership. We are not required to find whether AHCA was correct in withdrawing the application. The question before us is simply whether AHCA had “substantial justification” for doing so. Given the uncertainty MVP created concerning its ownership, we find “substantial justification” existed. We emphasize that MVP apparently felt at the time that the dispute was serious enough to warrant AHCA’s attention. It is ironic that MVP now wants to collect attorney’s fees simply because action was taken on a concern that it personally raised.

AHCA’s concern over MVP’s accreditation

AHCA knew at the time it withdrew the application that, pursuant to section 400.471 (2)(h), Florida Statutes (2010), MVP had to provide proof of accreditation to be licensed. It also knew at that time that MVP’s accreditation was current, as MVP had submitted proof of accreditation with the Joint Commission on Accreditation of Healthcare Organizations (the Joint Commission). However, the Joint Commission had notified AHCA by e-mail that although MVP was technically still accredited, proceedings had begun to terminate that accreditation. The Joint Commission indicated MVP no longer qualified for accreditation because, shortly after it submitted its licensing application, it had ceased operating. The e-mails from the Joint Commission to AHCA clearly indicated that MVP’s disaccreditation was certain and imminent. On this basis, a reasonable person could find AHCA was “substantially justified” in withdrawing the application as incomplete.

Again, the question here is not whether AHCA acted correctly in withdrawing the application, but whether its decision was “substantially justified.” AHCA stated in the Notice of Withdrawal that it was dismissing the application because MVP’s accreditation had been “terminated.” This claim was not true, as the Joint Commission at that point had only begun the disaccreditation process, not completed it. However, the information available to AHCA at that time indicated it was a foregone conclusion that MVP would soon be disaccredited. For this reason, AHCA was “substantially justified” in withdrawing the application.

Conclusion

AHCA’s Notice of Withdrawal was reasonably based on the uncertainty eoneern-ing MVP’s ownership and accreditation. This uncertainty “substantially justified” its decision. We therefore find that attorney’s fees and costs should not have been awarded pursuant to section 57.111(4)(a). The order is REVERSED and the matter is REMANDED for further proceedings consistent with this opinion.

MARSTILLER and RAY, JJ., concur.

      . We note that DOAH’s order adopted several additional legal conclusions made by the ALJ in support of awarding fees. These conclusions included the determination that AHCA was time barred from raising any concerns about accreditation under section 408.806(3)(a), Florida Statutes (2010), and the determination that AHCA should have granted the application by default under section 408.806(3)(c), Florida Statutes (2010). We have examined each of these conclusions and reject them without further comment. The award of fees must still be reversed.


text:
    Devin EDWARDS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4270.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See State v. Abreau, 363 So.2d 1063 (Fla.1978).

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


text:
    Mack H. SULLIVAN, Jr., Appellant, v. Emily HOFF-SULLIVAN, Appellee.
    No. 1D11-3552.
    District Court of Appeal of Florida, First District.
    Dec. 2, 2011.
    Mack H. Sullivan, Jr., pro se, Appellant.
    Corrine A. Bylund of Zisser, Robison, Brown, Nowlis, Maciejewski & Cabrey, P.A., Jacksonville, for Appellee.
   PER CURIAM.

Appellant, the former husband, appeals the trial court’s Order on Status Conference, which it entered upon remand from our opinion in Sullivan v. Hoff-Sullivan, 58 So.3d 293 (Fla. 1st DCA 2011). There, we held that because orders interpreting the parties’ divorce agreement and setting child support were entered by a Georgia court of competent jurisdiction, Appellee, the former wife, was barred by res judica-ta from relitigating the issue of the interpretation of the parties’ divorce agreement in Florida. 58 So.3d at 294. We reversed in part and remanded for a determination of child support modification beginning July 31, 2008, the date that Appellee petitioned for domestication and modification in Florida. Id.

In this appeal, Appellant contends that the trial court failed to follow Sullivan on remand when it modified child support and established a child support arrearage from August 2008 forward based again upon its interpretation of the parties’ divorce agreement, which differed from that of the Georgia court’s interpretation. We agree. As Appellant argues, the trial court should have determined the modification issue pursuant to the child support guidelines found in section 61.30, Florida Statutes. See § 61.30(1)(a), Fla. Stat. (“The child support guideline amount as determined by this section presumptively establishes the amount the trier of fact shall order as child support in an initial proceeding ... or in a proceeding for modification of an existing order .... ”); see also Finney v. Finney, 995 So.2d 579, 581 (Fla. 1st DCA 2008) (noting that a trial court’s discretion concerning child support is subject to the statutory guidelines set forth in section 61.30).

Accordingly, we REVERSE the order on appeal and REMAND for further proceedings consistent with this opinion.

BENTON, C.J., DAVIS and MARSTILLER, JJ., concur.