text:
    Shawn SAFFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3674.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Shawn Safford, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the April 20, 2009, order which denied a motion filed pursuant to Florida Rule of Criminal Procedure 3.850 in Gadsden County Circuit Court case number 05-734-CFA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, ROWE, and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Temika Lashay JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5035.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Randall J. Etheridge, Pensacola, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the December 4, 2009, judgment and sentence in Escambia County Circuit Court case number 2008-CF-006276-A. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

WEBSTER, ROWE and MARSTILLER, JJ., concur.


text:
    Michael K. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5748.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Michael K. Edwards, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order denying his motion to mitigate his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). This is not an appealable order. See, e.g., Mitchell v. State, 719 So.2d 1258 (Fla. 1st DCA 1998). The fact that the order included the statement that “[t]he Defendant shall have thirty (30) days from the date this Order is filed to take an appeal by filing a Notice of Appeal with the Clerk of Court” does not transform the order into an ap-pealable order. See Falco v. State, 44 So.3d 198 (Fla. 4th DCA 2010). This boilerplate language is required in orders on other types of postconviction motions, but it should not be included in orders on rule 3.800(c) motions. See Howard v. State, 914 So.2d 455, 456 (Fla. 4th DCA 2005); see also Barrington v. State, 46 So.3d 1077 (Fla. 1st DCA 2010) (Wetherell, J., concurring) (noting that the “inclusion of such language serves no purpose except to foster unnecessary appeals” and that “there is certainly no reason to suggest to an inmate that he or she has appellate rights in an order that is clearly not appealable”). Accordingly, we dismiss this appeal and we also take this opportunity to encourage the trial courts of this district to excise language concerning appellate rights from their orders on rule 3.800(c) motions.

DISMISSED.

DAVIS, HAWKES and WETHERELL, JJ., concur.


text:
    Randall S. MESSER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6772.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Amy Newby, Jacksonville, for Petitioner.

      Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.Crim. P. 3.850(h).

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


author: CIKLIN, J.

text:
    Daniel FELDMAN, Appellant, v. Rebecca DAVIS, individually, and Davis Griffey Law Firm, Appellees.
    No. 4D09-4496.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.

      Maury L. Udell of Beighley, Myrick & Udell, P.A., Miami, for appellant.
    No brief filed on behalf of appellees.
   CIKLIN, J.

Daniel Feldman (“client”) appeals the trial court’s order of dismissal and order compelling arbitration in his action against Rebecca Davis and the Davis Griffey Law Firm (“law firm”) for declaratory relief regarding his obligations to pay attorney’s fees under a contingency fee agreement. We conclude that the arbitration provision in the contingency fee agreement was limited to the determination of a “probable fee” if and when — and only if and when— the “Client decides to terminate the case after the [law firm] has provided substantial legal services.” We therefore reverse and remand to the trial court to reinstate the case and make a threshold determination as to whether these conditions were met.

The client retained the law firm to pursue a claim against Merrill Lynch for “investment losses” due to the company’s negligence or other malfeasance in not following the client’s instructions to liquidate a particular investment. The law firm initiated an arbitration proceeding with the Financial Industry Regulation Authority (“FINRA”) against Merrill Lynch on behalf of the client.

The client and the law firm entered into a contingency fee agreement which provided that the client agreed to pay the law firm “30% percent of any settlement or recovery prior to deduction of $600.” Paragraph 8 of the agreement contained an arbitration provision, which specified:

8. If Client decides to terminate the case after Lawyer has provided substantial legal services, Client must pay Lawyer a sum equal to the probable fee, to be determined by a panel of the American Arbitration Association. Client and Lawyer will split the cost of arbitration.

Prior to the conclusion of the FINRA arbitration, the law firm withdrew from representation of the client on May 7, 2009. The client alleged that the law firm withdrew voluntarily after the client sent an email threatening to report the law firm to The Florida Bar because it had failed to communicate with him for four months. The law firm alleged that it was forced to withdraw because the client’s filing of a grievance with The Florida Bar created a conflict of interest.

After withdrawing from the case, the law firm demanded that the client pay the law firm a $180,000 contingency fee even though the FINRA claim only sought a maximum of $50,000. When the client refused, the law firm, on May 21, 2009, filed a Notice of a Charging Lien with Merrill Lynch, and then, on June 25, 2009, notified the client that it was going to compel arbitration to resolve the appropriate contingency fee.

Thereafter, the client filed the instant action for declaratory relief in the circuit court as to his obligations under the contingency fee agreement. The client specifically sought a declaration as to the issue of whether the contingency fee agreement’s arbitration provision required the parties to arbitrate their fee dispute only if the client terminated representation in the FINRA matter.

The immediate reaction of the law firm was to file a motion to dismiss the declaratory action or in the alternative a motion to stay and motion to compel arbitration.

The FINRA matter was resolved via settlement on September 9, 2009, after the client had engaged new counsel. Subsequently, the trial court granted the law firm’s motion to stay and motion to compel arbitration. In its order granting the motion, the trial court ruled that the contingency fee contract was not a prohibited contract under the Rules Regulating The Florida Bar and that the issues did not fall outside the scope of arbitration. In particular, the trial court stated that the issues in dispute were “whether the attorney involuntarily withdrew due to the clients’ actions in a matter that has been terminated and the appropriate legal fee.” The trial court found that it was “obligated to order arbitration unless there is no interpretation of the arbitration clause that covers this dispute and dismissed the declaratory action.” The client now appeals the trial court’s order.

“The question of whether a disputed issue is subject to arbitration is a matter of contract interpretation, and our review is de novo.” Fla. Envtl. Servs., Inc. v. Rentoumis, 950 So.2d 466, 470 (Fla. 4th DCA 2007); see also Rodriguez v. Builders Firstsource—Florida, LLC, 26 So.3d 679, 680 (Fla. 4th DCA 2010).

“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999). The main element we address here is the second element-whether the dispute is within the scope of arbitration. The question of whether a dispute is within the scope of arbitration is a matter of contract interpretation and reviewed de novo. See O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (Fla.2006); Rentoumis, 950 So.2d at 470.

In Citigroup, Inc. v. Boles, 914 So.2d 23 (Fla. 4th DCA 2005), this court explained:

Notwithstanding that arbitration is favored in the law, construction of an arbitration clause remains subject to the contract law requirement “that the court discern the intent of the parties from the language used in their agreement.” Citigroup, Inc. v. Amodio, 894 So.2d 296, 298 (Fla. 4th DCA 2005). “[Ajrbitration is mandatory only where the subject matter of the controversy falls within what the parties have agreed will be submitted to arbitration.” Ocwen Fed. Bank FSB v. LVWD, Ltd., 766 So.2d 248, 249 (Fla. 4th DCA 2000). “[I]t is the language of the agreement that defines the scope of an arbitration agreement.” Amodio, 894 So.2d at 298.

Boles, 914 So.2d at 25.

Here, the parties chose to include a constricted and specific arbitration provision which was limited to the determination of a “probable fee.” Notably, the arbitration clause did not require the parties to arbitrate “all fee disputes.” The narrow provision that the parties chose to use in their agreement evidenced the parties’ intent to limit the scope of arbitration. See Rentoumis, 950 So.2d at 471 (holding that a narrowly worded arbitration provision that was limited to “any dispute concerning the accounting determinations used in calculating” valuations in a sale contract did not provide for the arbitrator, an accounting firm, to determine whether either party had breached the contract). Furthermore, under the tightly specific arbitration provision here, any ambiguities should be construed against the law firm as both drafter and attorney. See Arabia v. Siedlecki, 789 So.2d 380, 383 (Fla. 4th DCA 2001) (“An attorney must be clear and precise in explaining the terms of a fee agreement. To the extent the contract is unclear, the agreement should be construed against the attorney.”).

The arbitration provision at issue here was decidedly limited to the calculation of a “probable fee” if and when the client terminated representation regarding the FINRA matter after the law firm had provided substantial legal services. The arbitration clause provided for nothing less and nothing more. See Royal Prof'l Builders, Inc. v. Roggin, 853 So.2d 520, 523 (Fla. 4th DCA 2003) (“Because the arbitration provision in the agreement did not provide for the arbitration panel to decide whether the claim is arbitrable, the trial court, rather than the arbitration panel, should make that determination.”).

Under Florida law, when an attorney voluntarily withdraws from representation subject to a contingency fee agreement and the contingency has not yet occurred, the attorney forfeits all rights to compensation. Faro v. Romani, 641 So.2d 69, 71 (Fla.1994). On the other hand, “if the client’s conduct makes the attorney’s continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule of the Rules Regulating The Florida Bar, that attorney may be entitled to a fee when the contingency of an award occurs.” Id. Thus, as a first step upon reinstatement of the case, the trial court must determine if the law firm withdrew voluntarily, or if the law firm withdrew because the client’s conduct made the firm’s continued performance of the contract either legally impossible or would have caused the firm to violate an ethical rule. If the trial court determines that the law firm’s withdrawal was voluntary, as the client contends, then the law firm would not be entitled to any fee as a matter of law, see Faro, 641 So.2d at 71, and there would be no “probable fee” to determine.

Contrarily, if the trial court holds that the withdrawal was necessitated by the client’s conduct, determinations are necessary prior to referring the “probable fee” dispute to arbitration. First, the trial court must ascertain the intent of the parties as to the phrase “if the client decides to terminate the case.” If the trial court finds that the client terminated the contingency fee agreement, it must then determine if, prior to termination, the law firm had “provided substantial legal services.” If after making these determinations, the trial court finds that the law firm is entitled to compensation, then the case should be sent to arbitration to determine the “probable fee” under the circumstances.

Finally — and perhaps most importantly — the trial court must decide if the arbitration provision in the contingency fee agreement is void and unenforceable as a matter of law. A provision in a contingency fee agreement that does not conform to the Rules Regulating The Florida Bar is not enforceable by the member of The Florida Bar that violated the rule. See Chandris, S.A. v. Yanakakis, 668 So.2d 180, 185-86 (Fla.1995) (“[W]e hold that a contingent fee contract entered into by a member of The Florida Bar must comply with the rule governing contingent fees in order to be enforceable.”); Lackey v. Bridgestone/Firestone, Inc., 855 So.2d 1186, 1188 (Fla. 3d DCA 2003) (“Although the non-complying clauses on other matters are unenforceable, they do not render the agreement void. Therefore, the offending provisions may be severed allowing for enforcement of the agreement.”).

Rule 4-1.5(i) of the Rules Regulating The Florida Bar provides that an attorney shall not enter into an agreement with a client which provides for mandatory arbitration of fee disputes unless the attorney advises the client in writing that the client “should consider obtaining independent legal advice as to the advisability of entering into an agreement containing such mandatory arbitration provisions.” Otherwise, the agreement which contains the mandatory arbitration provision must contain a specific notice in bold print. While the record does not reveal whether the law firm advised the client in writing that he should consider obtaining independent legal advice regarding the mandatory arbitration provision, the written contingency fee agreement does not include the mandatory notice. Thus, if the trial court finds that the law firm did not provide the required written notice, the provision in the contingency fee agreement providing for mandatory arbitration would be in violation of Rule 4 — 1.5(i).

Rule 4 — 1.5(i) became effective on March 1, 2008. See In re Amendments to the Rules Regulating the Florida Bar, 978 So.2d 91, 92 (Fla.2007). The subject fee agreement was signed on May 6, 2008-after the rule had become effective. Thus, if the mandatory arbitration provision in the contingency fee agreement does not conform with Rule 4 — 1.5(i), the provision may be unenforceable on its face.

Reversed and remanded ivith instructions.

TAYLOR, J., and TOWBIN SINGER, MICHELE, Associate Judge, concur.

      . FINRA is "the largest independent regulator for all securities firms doing business in the United States.” FINRA — About FINRA, http://www.finra.org/AboutFINRA/ (last visited Nov. 22, 2010). According to FINRA’s Customer Code of Arbitration Procedures, parties must arbitrate a dispute under the Code if requested by a customer in a dispute between a customer and a FINRA member arising in connection with the business activities of the member. See Section 12200, FIN-RA Code of Arbitration Procedure for Customer Disputes.

      . The contract stipulated that the $600 was for the initial filing fee to initiate the FINRA arbitration proceedings. The filing fees for FINRA are based on the maximum amount of the claim exclusive of interest and expenses. The $600 fee was based on a maximum claim of $50,000. See Section 12900, FINRA Code of Arbitration Procedure for Customer Disputes.

      . While not necessarily germane to our holding, it is at least noteworthy that on August 24, 2009, while the motion to dismiss was still pending and prior to the final resolution of the FINRA matter, the law firm moved to intervene in the FINRA arbitration claiming that it was entitled to attorneys’ fees from any final settlement.

      . We note, however, that mere threats by the client to report the law firm’s lawyers to The Florida Bar for failing to communicate with the client would not normally qualify as conduct that would make the law firm’s "continued performance of the contract either legally impossible or would cause the attorney to violate an ethical rule.” See Faro, 641 So.2d at 71; DePena v. Cruz, 884 So.2d 1062, 1064 (Fla. 2d DCA 2004) (holding that there is no exception to the Faro rule for "breakdown in the attorney-client relationship”).

      . The contingency fee agreement included a provision that would allow the law firm to withdraw as counsel at any time for any reason and thus terminate the contract. The agreement is silent as to whether the law firm would be entitled to compensation if it terminated the contract before the contingency occurred. The Florida Supreme Court has indicated that "any contingency fee contract which permits the attorney to withdraw from representation without fault on part of the client or other just reason, and purports to allow the attorney to collect a fee for services already rendered would be unenforceable and unethical.” The Florida Bar v. Hollander, 607 So.2d 412, 415 (Fla.1992). Thus, to be enforceable, the contingency fee agreement must be interpreted such that if the law firm’s withdrawal was voluntary, it would be entitled to no fees. See J.R.D. Mgmt. Corp. v. Dulin, 883 So.2d 314, 316 (Fla. 4th DCA 2004) (explaining that under the contract principle known as the rule of validity, "in the interpretation of contracts judges will presume that the parties intended a binding, valid agreement”).

      .Even in arbitration, tire "probable fee” would be limited to "the reasonable value of [the Law Firm’s] services rendered prior to discharge, limited by the maximum contract fee.” See Rosenberg v. Levin, 409 So.2d 1016, 1021 (Fla.1982).


text:
    Daniel BOSCA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1946.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Carey Haughwout, Public Defender, and Alan T. Lipson, 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 State v. Kelly, 999 So.2d 1029 (Fla.2008).

POLEN, CIKLIN and LEVINE, JJ„ concur.


author: STEVENSON, J.

text:
    Scott Wayne LAMBE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4255.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.

      Carey Haughwout, Public Defender, and Tom Wm. Odom, 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.
   STEVENSON, J.

Defendant appeals an upward departure sentence imposed after revocation of his probation. Because the trial court relied on factors not present at the time Defendant was originally sentenced, we reverse and remand for sentencing within the guidelines.

In 1993, Defendant pled guilty to trafficking in cocaine and conspiracy to traffic cocaine. These crimes occurred in 1989. Defendant was sentenced to concurrent terms of ten years probation. After absconding for a period of time, Defendant was charged in 2009 for multiple violations of the terms of his probation. The charging affidavit alleged, in part, that Defendant had committed new criminal offenses. Defendant had not been convicted of any of the alleged crimes.

At the subsequent violation of probation hearing, the State presented evidence of Defendant’s alleged involvement in a scheme to defraud elderly citizens, committed during his term of probation. No evidence was presented on the underlying trafficking offenses, other than preparation of the sentencing guidelines scoresheet. The scoresheet indicated a permitted sentence of four-and-a-half to nine years. However, the State argued that an upward departure was appropriate because the victims of the new criminal offenses were especially vulnerable due to their age and that the new criminal offenses displayed an escalating pattern of criminal activity.

The trial court sentenced Defendant to an upward departure from the guidelines of two concurrent terms of twenty-five years. The trial court found that Defendant’s behavior in violating probation was egregious, due to the nature of the offenses and the fact that the victims were elderly citizens. The trial court also found that the guidelines did not address the nature of Defendant’s behavior in violating probation and that the underlying offenses committed by Defendant were “serious, aggravated ... for which his sentence was one of compelling leniency.”

A trial court’s decision to depart from the sentencing guidelines presents a mixed question of law and fact. See Powanda v. State, 8 So.3d 1280, 1232 (Fla. 2d DCA 2009). An upward departure will be upheld if the trial court applied the correct legal standard, and if the ruling is supported by competent, substantial evidence. See id. In revoking probation, the trial court may “impose any sentence which it might have originally imposed before placing the probationer or offender on probation.” § 948.06(2)(e), Fla. Stat. (1989). The departure must be supported by a preponderance of the evidence and “shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure.” § 921.001(5), Fla. Stat. (1989). However, “factors related to violation of probation or community control cannot be used as grounds for departure.” Lambert v. State, 545 So.2d 838, 842 (Fla.1989).

The trial court impermissibly relied upon facts not present at the time Defendant was originally sentenced. Most of the trial court’s findings related to Defendant committing the alleged fraud-related crimes. To base an upward departure on factors relating to the violation of probation violates Lambert. The one finding made on the underlying offenses, i.e., that the offenses were serious and aggravated for which leniency was given, was not supported by evidence presented at the violation of probation hearing, as all of the evidence focused on Defendant’s alleged new criminal offenses. Because the trial court’s reasons for departing from the guidelines were invalid, the trial court may not, on remand, give new reasons for a departure. See Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987). Thus, we reverse and remand for sentencing within the guidelines.

Reversed and remanded.

WARNER and POLEN, JJ., concur.


text:
    William JAMES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6682.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2011.
    William James, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    Michael PUGSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5725.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2011.
    Michael Pugsley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    Stephen M. SCHWARTZ, R.PH, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D10-2684.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2011.
    William M. Furlow, and Veronica L. Bayo, of Grossman, Furlow & Bayo, LLC, Tallahassee, for Appellant.
    Tracy Lee Cooper, Chief Appellate Counsel, Tallahassee, for Appellee.
   PER CURIAM.

See Toth v. S. Fla. Water Mgmt. Dist., 895 So.2d 482 (Fla. 4th DCA 2005) (“In order to obtain review of the action of an administrative agency, a person’s ‘substantial interests’ must have been determined”); Sickon v. School Bd. of Alachua County, 719 So.2d 360, 363 (Fla. 1st DCA 1998) (“The allegations of the petition must be examined to determine whether the facts alleged amount to an injury ‘under the protection of pertinent substantive law”).

AFFIRMED.

DAVIS, HAWKES and MARSTILLER, JJ., concur.


text:
    Allen Lanard McGRIFF, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6483.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2011.

      Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Mendenhall v. State, 48 So.3d 740 (Fla.2010); Calloway v. State, 914 So.2d 12 (Fla. 2d DCA 2005).

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    Clifford Lee PERKINS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3645.
    District Court of Appeal of Florida, Second District.
    Feb. 2, 2011.
    James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Clifford Lee Perkins, Jr., pleaded no contest in three separate cases to four counts of sale or delivery of cocaine within 1000 feet of a school and four counts of possession of cocaine. Prior to sentencing, Perkins moved to withdraw his plea; however, the trial court denied this motion after a hearing. The court then orally sentenced Perkins to concurrent terms of 108 months in prison on each of the sale or delivery counts and sixty months in prison on each of the possession counts.

We affirm Perkins’ convictions without further comment. However, we note that there appears to be a scrivener’s error in the written judgments and sentences, two of which indicate a sentence of 180 months — rather than 108 months — on the sale or delivery convictions. We cannot address this apparent error in this appeal because it was not preserved either before this appeal by objection in the trial court or while this appeal was pending by the filing of a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Therefore, we must affirm Perkins’ sentences. However, our affirmance is without prejudice to any right Perkins may have to raise this apparent error in the trial court.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: WELLS, Judge.

text:
    Alejandra COSSIO, Appellant, v. Luis Alejo ARRONDO, Appellee.
    No. 3D10-298.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.

      Restani, Dittmar <& Hauser and Helen Ann Hauser, Coral Gables, for appellant.
    Payton & Associates, Harry A. Payton and Lisa Hu Barquist, Miami, for appellee.
    Before WELLS, LAGOA, and EMAS, JJ.
   WELLS, Judge.

Alejandra Cossio appeals from a final judgment claiming the court below erred in precluding her from presenting at trial any witnesses (other than herself) and from introducing any documents. Because we find this sanction not commensurate with the offense for which it was imposed, we reverse.

In 2003, Luis Alejo Arrondo, a California resident, and his aunt Alejandra Cos-sio, a resident of Miami-Dade County and long time Florida real estate agent, formed a partnership, by oral agreement, for the purpose of investing in South Florida real estate. The parties decided to be equal owners, agreeing to contribute equally to the partnership’s capital and share equally in its profits and losses.

Between 2003 and 2005, the partnership acquired nine properties, six of which were sold by the time of trial. The partnership did not employ a trained bookkeeper, and, for various reasons, many of its transactions were not recorded. Throughout its duration, the partnership had no positive cash flow, operating only from the capital supplied by the partners and loans made to the partnership. The partners commingled their personal accounts with the partnership account and personal loans were made between the partners and to the partnership.

The partners communicated by phone, with Cossio administering the partnership until mid-2005, when Arrondo relocated to Miami. At that time, Arrondo became more involved and by his account, discovered that he had contributed considerably more capital than Cossio and that Cossio had been keeping what he considered partnership commissions.

In 2007, Arrondo filed suit against Cos-sio to dissolve the partnership and appoint a receiver. He claimed that he had advanced more monies and thus sought more than half of the partnership proceeds; also he argued that Cossio had taken unauthorized commissions and disbursements. He later amended his complaint to add a claim for breach of an oral agreement by Cossio to pay back a personal loan. Cossio counterclaimed for equitable accounting, breach of fiduciary duty, and constructive fraud, arguing that Arrondo misappropriated partnership funds.

When Cossio’s counsel was listed as a witness, he withdrew, and on October 28, 2009, Cossio retained new counsel, David Abrams. On December 8, 2009, the trial court issued an order requiring the parties to submit by January 8, 2009, a joint pretrial notebook, which among other things was to list each party’s witnesses and exhibits. On that date, Arrondo moved, on an emergency basis, for leave to file a unilateral pretrial notebook claiming that he had been unable to obtain Abrams’ cooperation. Abrams filed no pretrial materials on Cossio’s behalf. Abrams subsequently was sanctioned for this failure and fined $250. The trial court also sanctioned Cossio, precluding her from calling any witnesses other than herself and those listed by Arrondo and precluding her from introducing any exhibits into evidence.

At the February 8, 2009 trial which followed, Arrondo testified and also called Ricardo Gonzalez (Cossio’s former attorney), Mayra Arrondo (Arrondo’s sister), Ernesto Pinero (the partnership’s bookkeeper), and forensic accountant Maria Yip as witnesses. Pursuant to the trial court’s order, only Cossio testified on her own behalf. Based on the testimony from these witnesses, the court below dissolved the partnership and ordered a wind up. In doing so it also found that Cossio was entitled to her commissions, but in accordance with Arrondo’s expert’s calculations, it concluded that the partnership owed $324,378 to Arrondo to repay him for his excess contributions and that Cossio owed $55,768 to Arrondo for a loan that he had made to her.

Cossio appeals from that judgment claiming that the court below erred not only for sanctioning her for the behavior of her attorney, but also for imposing a sanction that far outweighed the wrongdoing at issue. We agree and reverse because a litigant should not be punished for failures of counsel and because sanctions imposed for failure to comply with an order such as that involved here should be commensurate with the wrongdoing:

When a party fails to comply with an order, the trial court has a broad spectrum of sanctions to impose, although the sanction chosen must be commensurate with the offense. See St. Mary’s Hosp., Inc. v. Brinson, 685 So.2d 33, 35 (Fla. 4th DCA 1996). Although striking a party’s pleadings is the most severe sanction, it is appropriate where the offending conduct is flagrant, willful or persistent. See id. “A deliberate and contumacious disregard of the court’s authority will justify application of this severest of sanctions, as will bad faith, willful disregard or gross indifference to an order of the court, or conduct which evinces deliberate callousness.” Mercer v. Raine, 443 So.2d 944, 946 (Fla.1983) (citations omitted). Absent evidence of a willful failure to comply or extensive prejudice to the opposition, however, the granting of such an order constitutes an abuse of discretion. See Clark v. Lake City Police Dep’t, 723 So.2d 901, 902 (Fla. 1st DCA 1999). It also has been found to be an abuse of discretion to strike pleadings where a litigant is punished for the failure of counsel, or where there is only a single failure to comply which did not result in extreme prejudice to the other side. See id.

Kamhi v. Waterview Towers Condo. Ass’n, 793 So.2d 1033, 1036 (Fla. 4th DCA 2001) (confirming that “[although the trial court in this case did not strike [the party’s] pleadings, its order prohibiting [that party] from presenting evidence and proffering testimony was tantamount to the severest of sanctions”); see Taylor v. Mazda Motor of Am., Inc., 934 So.2d 518, 521-22 (Fla. 3d DCA 2005) (confirming that sanctions “must be commensurate with the offense,” and that although a decision to impose sanctions is discretionary, “a litigant should not be punished for fault on the part of ... counsel by such a severe sanction as striking ... witnesses for noncompliance”); Progressive Consumers Ins. Co. v. Deco Natural Stone, Inc., 827 So.2d 336, 336-37 (Fla. 3d DCA 2002) (confirming that imposing a punishment “far out of proportion to the magnitude of the alleged offense” constitutes “a gross and reversible abuse of discretion”).

The record in this case does not show that Cossio was in any manner responsible for her attorney’s non-compliance with the trial court’s pretrial order. Indeed, the order precluding Cossio from calling witnesses and introducing exhibits expressly sanctions Cossio’s attorney for his failure to comply with the court’s pretrial order. It does not suggest any wrongdoing on Cossio’s part as a basis for imposing these sanctions. The trial transcript also suggests that Cossio was unaware of her attorney’s derelictions. In fact, when the issue was brought up during her testimony at trial, Cossio appeared to be surprised, stating: “My failure to comply with what? ... I don’t know about the pretrial. If you could enlighten me, I would appreciate it.”

The sanction was one of the harshest sanctions that could have been imposed, effectively preventing Cossio from presenting her case. This was a hotly contested, complicated matter involving segregation of commingled partnership finances. As a consequence of the trial court’s sanction order, Cossio was unable to introduce documentary evidence to support her testimony or to present expert testimony to advance her accounting theory. For example, Cossio claimed that a purportedly unauthorized $100,000 loan from the partnership had been mistakenly deposited into her personal account without her knowledge or consent. She testified that after she learned of the deposit, she had required a “journal entry” to be made showing the movement of these funds to partnership accounts. But because the sanction precluded her from corroborating this testimony with documentary evidence, Arrondo’s counsel was able to argue that her testimony should be stricken as not being the “best evidence.”

Cossio also testified that her American Express card was not used exclusively for her personal use, but was used to pay some of Arrondo’s personal expenses and many partnership business expenses as well. Thus, it was Cossio’s position that nearly all of the charges which Arrondo’s

expert witness had attributed to her, should have been charged to the partnership. But under the sanction order, Cos-sio was not allowed to introduce documents or expert testimony to support her testimony and theory. This allowed Ar-rondo’s counsel to repeatedly object to Cossio’s testimony as being unsupported by documentary evidence and to argue on closing that Cossio had failed to present sufficient evidence to prove her defenses and counterclaim:

[T]he only thing the defense could muster was the testimony of Ms. Cossio, who had more than sufficient opportunity to present evidence of a competent nature by her retained professionals, and she didn’t; so all of a sudden, we are now backtracking and trying to account for all of these things that she’d like to get even on so that she can reduce the indebtedness of the partnership to her nephew.
The personal accounts — you’ve got one professional testifying, [“]I reconstructed the books, I pored [sic] over the books, I worked with the opposing professional, we came up with a number .... [”]
Ms. Cossio doesn’t have one exhibit to offer ...
THE COURT: Well, I prevented her from having any.
[COUNSEL FOR ARRONDO]: You did. And she can’t yet it in another way. Your order is your order. And applyiny the rules of evidence ... [tjhey’re not in evidence.
I mean, [Cossio’s testimony] was just I didn’t agree with this, I didn’t agree with that, it should have been this way and that way. I’m not sure who could follow that, to be honest with you, Judge. But it is not competent evidence. It is not what we call substantial competent evidence, and it’s anything but that.

(Emphasis added).

As this court stated in Taylor, we are “well aware of the heavy case load carried by trial judges and the need for the courts to move their dockets in the interest of the parties and justice.” Taylor, 934 So.2d at 522 n. 2. We nonetheless conclude that in this case, there was no evidence that the party sanctioned was guilty of wrongdoing or that the sanction imposed was “commensurate with the offense.” Id. at 522.

For these reasons, the final judgment entered below is reversed with this matter remanded for a new trial.

      . According to Cossio, Arrondo initially suggested a 60/40 ownership split with Cossio having the 60% interest, as she would be managing the partnership; however, on her expressed preference, a 50/50 split was agreed to with Cossio keeping the commissions she obtained from the sale of partnership properties. Arrondo maintained that no such agreement as to commissions had been reached.

      . Initially, Cossio retained Jose Vila as her expert accountant and Arrondo retained Maria Yip. Vila and Yip both prepared separate reports reconstructing the partnership's transactions. The reports differed, and before a joint affidavit was executed, Vila withdrew as Cossio’s expert. Cossio then retained Pedro Alberni. Yip and Alberni were unable to reconcile certain disputed numbers and Cos-sio’s attorney filed an emergency verified motion for continuance on February 2, 2009. The trial court heard and denied the motion before the trial on February 3, 2009.

      . The order states only "Defendant may not call any witnesses other than the Defendant herself”; "Defendant may not introduce any documents other than those listed on Plaintiff’s Exhibit List”; and "Mr. Abrams shall make a $250.00 contribution to his favorite charity on or before January 30, 2009 for failure to comply with this Court’s sua-sponte order.”

      . Cossio also identified a $20,000 disbursement to Arrondo's sister, a payment she maintained should have been offset from Arrondo’s contributions. She further testified to a number of other payments to relatives that she claimed were being wrongly attributed as disbursements to her for personal use. Again, without documentary support and the testimony of her expert accounting witness, she could not back up this testimony.


text:
    David SAINTIL, Appellant, v. STATE of Florida, DEPARTMENT OF CORRECTIONS, Appellee.
    No. 3D10-1519.
    District Court of Appeal of Florida, Third District.
    Feb. 2, 2011.
    Geller Mitha and David Geller, for appellant.
    Kendra Lee Jowers, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See § 948.11, Fla. Stat. (2009); Freeman v. State, Dep’t of Health & Rehab. Servs., 436 So.2d 964 (Fla. 3d DCA1983).


author: DAVIS, Judge.

text:
    Michael Dale JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2454.
    District Court of Appeal of Florida, Second District.
    Feb. 4, 2011.
    Michael Dale Jones, pro se.
   DAVIS, Judge.

Michael Dale Jones challenges the order of the posteonviction court granting in part and denying in part his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm.

In the motion, Jones sought twenty-one days’ credit against his prison sentences in two trial court cases for the time that he allegedly spent in the juvenile detention center prior to the transfer of the cases to the criminal division of the circuit court. Jones also sought credit for any time subsequently spent in the county jail prior to the disposition of his cases.

Jones’ claims are facially insufficient because he failed to allege that his entitlement to relief is determinable from the face of the circuit court record. See Stathas v. State, 852 So.2d 881, 882 (Fla. 2d DCA 2008). To the extent that the post-conviction court already has addressed the claims for county jail credit on their merits, we affirm the denial of those claims. Cf. Sweeney v. State, 944 So.2d 474, 474 (Fla. 4th DCA 2006) (concluding that remanding for the entry of a procedurally correct order “would be a waste of judicial resources and thus we choose to affirm on the merits”).

There is currently nothing in the record before this court to refute Jones’ claim that he is entitled to credit for the time he spent in juvenile detention. Time spent in such detention is credited like time spent in county jail. See Hannah v. State, 876 So.2d 655, 656 (Fla. 2d DCA 2004); Smith v. State, 664 So.2d 1076, 1076 (Fla. 2d DCA 1995). Although we affirm the summary denial of this claim because as alleged it is facially insufficient, our affirmance is without prejudice to Jones’ filing a facially sufficient motion seeking any credit due him for the time he spent in juvenile detention prior to his convictions. See Orta v. State, 41 So.3d 1092 (Fla. 5th DCA 2010).

Affirmed.

MORRIS and KHOUZAM, JJ„ Concur.


text:
    Scott BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4479.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Rick A. Sichta, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Scott Baker, Appellant, appeals an order denying his petition to expunge his criminal history records related to a charge that the State elected not to pursue. He argues that the trial court’s reasons for denying his petition were not sufficiently related to the particular facts and circumstances of his case. We agree, and therefore, reverse and remand for reconsideration.

After a hearing at which no evidence was adduced, the trial court entered an order denying Appellant’s petition based on the nature of the charge and the nature of Appellant’s occupation. According to the order, Appellant works at a car wash where he has contact with the public, “obviously including children.” The trial court opined that the public’s compelling interest in knowing the character of those who provide a service to the community, particularly the children of the community, justified denial of the petition.

Orders denying expunction of criminal records are reviewed for abuse of discretion. VFD v. State, 19 So.3d 1172, 1174 (Fla. 1st DCA 2009). Section 943.0585, Florida Statutes (2009), governs the expunction of non-judicial criminal history records, and Florida Rules of Criminal Procedure 3.692 and 3.989 govern petitions to seal or expunge court records. See Anderson v. State, 692 So.2d 250, 252 (Fla. 3d DCA 1997) (explaining that the legislature has control over non-judicial criminal history records but not court records). Although these authorities do not confer a right to expunction on the petitioner, satisfaction of their requirements does create a presumption in favor of ex-punction. Anderson, 692 So.2d at 252 (cited with approval in Oymayan v. State, 765 So.2d 812, 815 (Fla. 1st DCA 2000)). Where the petitioner has satisfied the requirements of the relevant rules and statutes, it is an abuse of discretion for the trial court to deny the petition without a factual basis. VFD, 19 So.3d at 1175; see also Harman v. State, 12 So.3d 898, 899 (Fla. 2d DCA 2009) (finding an abuse of discretion where the trial court denied a petition to expunge based on the prosecutor’s unsupported representations concerning events in the defendant’s past).

In deciding whether to grant a motion to expunge, a trial court must weigh the policy of public access to records against the “long-standing public policy of providing a second chance to criminal defendants who have not been adjudicated guilty.” State v. D.H.W., 686 So.2d 1331, 1336 (Fla.1996). The court’s discretion must be exercised based on the particular facts and circumstances surrounding the records at issue, and not solely on the nature of the charge. Cole v. State, 941 So.2d 549, 550 (Fla. 1st DCA 2006) (citing Godoy v. State, 845 So.2d 1016, 1017 (Fla. 3d DCA 2003)). It is improper to deny a petition for expunction based on facts that would be applicable to any person seeking such relief. See VFD, 19 So.3d at 1175 (holding that the trial court abused its discretion in relying on the prosecutor’s argument that knowledge of the defendant’s criminal history may prove useful in a future case, as that reasoning would be applicable to any case).

Here, the trial court based its denial on the nature of the charge and the assumption that Appellant’s occupation would place him in contact with children. Despite the trial court’s finding that Appellant would obviously have contact with children through his occupation, there was no evidence indicating that Appellant works in a position of trust, that he has more contact with children than the average person, or that his job places him in the position of having unsupervised contact with children. Cfi Gonzalez v. State, 565 So.2d 410, 411-12 (Fla. 3d DCA 1990) (holding that it was proper to deny ex-punction of a firefighter’s record where he pled nolo contendere to the unlawful purchase of cocaine, given that his occupation required him to be ready “at any given moment ... to render assistance in a life threatening situation”). Therefore, the trial court’s reasoning was insufficiently related to the particular facts and circumstances of this case, and the denial of the petition was an abuse of discretion based on the record before us. As a result, we reverse and remand for reconsideration of the petition.

REVERSED and REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.


text:
    C.C.T., a child, v. STATE of Florida, Appellee.
    No. 1D10-4001.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

C.C.T., a juvenile, appeals a final order adjudicating him delinquent and committing him to a high-risk facility. C.C.T. argues, and the State concedes, that in departing from the recommendation of the Department of Juvenile Justice (“DJJ”) to commit him to a moderate-risk facility, the trial court failed to comply with the “highly specific” requirements enunciated in E.A.R. v. State, 4 So.3d 614 (Fla.2009). We agree and, consequently, reverse.

Section 985.433(7)(b), Florida Statutes (2010), delineates the' requirements governing a trial court’s disposition decision after a juvenile has been adjudicated delinquent. This subsection provides in pertinent part as follows:

The court shall commit the child to the department at the restrictiveness level identified or may order placement at a different restrictiveness level. The court shall state for the record the reasons that establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the department.

§ 985.433(7)(b). In reference to this statutory mandate, the Florida Supreme Court announced in E.A.R. v. State, 4 So.3d 614, 638-39 (Fla.2009), “a new, more rigorous analysis that a trial court must conduct before departing from the DJJ’s recommendation.” C.M.H. v. State, 25 So.3d 678, 679 (Fla. 1st DCA 2010). Specifically, E.A.R. instructs that to lawfully depart from the recommendation of the DJJ, the trial court must take the following steps:

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each
restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile-in the least restrictive setting-and maintaining the ability of the State to protect the public from further acts of delinquency.

E.A.R., 4 So.3d at 638. The trial court’s stated “reasons” for departing from the DJJ’s recommendation “must provide a legally sufficient foundation for ‘disregarding’ the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs[,] along with the risks that the unrehabilitated child poses to the public.” Id.

In this case, the trial court failed to (1) articulate an understanding of the respective characteristics of the high-risk and moderate-risk restrictiveness levels and to (2) logically and persuasively explain why the high-risk level was better suited to serving C.C.T.’s rehabilitative needs in the least restrictive setting and to maintaining the ability of the State to protect the public from further acts of delinquency. E.A.R., 4 So.3d at 638 (identifying these two inquiries as prerequisites to departing from the recommendation of the DJJ); see also 25 So.3d at 680 (also reaching this conclusion). For these reasons, we hold that the State appropriately conceded that the trial court’s order did not comply with the dictates of E.A.R. Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R.; however, if no such order can be entered, we direct the trial court to impose the recommendation of the DJJ. C.M.H., 25 So.3d at 680 (identifying this form of relief where the trial court “did not engage in the appropriate analysis” prescribed by E.A.R. when it departed from the DJJ’s recommendation).

REVERSED and REMANDED.

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.

      . T.M. v. State, 48 So.3d 1007, 1009 (Fla. 1st DCA 2010).


text:
    JULIO BANKS, P.E., Appellant, v. FLORIDA ENGINEERS MANAGEMENT CORPORATION, Appellee.
    No. 1D10-3182.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Diane S. Perera, and Adam D. Sherman of Diane S. Perera, P.A., Miami, for Appellant.
    John J. Rimes, III, Tallahassee, for Ap-pellee.
   PER CURIAM.

The appellant appeals from a final order entered against him by the Board of Professional Engineers (the Board) following an informal hearing. The order was entered after the Board granted Florida Engineers Management Corporation’s (FEMC’s) motion to find that the appellant did not respond to FEMC’s administrative complaint within 21 days, thereby waiving his right to dispute the material facts alleged in the complaint. Relying on their finding of waiver, the Board concluded that the appellant violated sections 471.033(l)(g) and (k), Florida Statutes (2010), and disciplined his Professional Engineer (PE) license. On appeal, the appellant argues that he did file a timely response, which should have been treated as a request for formal hearing; therefore, the Board’s finding of waiver was in error. We agree and reverse.

In 2007, the appellant’s PE license was disciplined and he was placed on probation. Under the terms of his probation, he was required to submit a list of his projects to the Board for peer review. In 2008, the appellant submitted his first list of projects as required and the reviewer found several deficiencies in the documents. In lieu of submitting his second list of projects for review, the appellant informed FEMC that he had not performed any engineering work that needed to be reviewed.

On October 8, 2009, FEMC filed a two-count administrative complaint against the appellant. Count One alleged that the appellant violated section 471.033(l)(g), Florida Statutes (2009), by engaging in negligence in the practice of engineering. Count Two alleged that he had violated section 471.033(l)(k), Florida Statutes (2009), by falsely stating he had not completed any engineering projects, contrary to the terms of his probation. According to the certificate of service, the complaint was furnished to the appellant by certified mail on October 14, 2009. The complaint was also accompanied by an election of rights form and a cover letter which advised that the appellant had 21 days in which to request a formal administrative hearing under section 120.57(1), Florida Statutes (2009).

On November 16, 2009, the Board received a letter from the appellant requesting a six-month extension in order to obtain the necessary funds to properly respond. The letter also disputed, with particularity, certain material allegations in the administrative complaint.

On December 4, 2009, FEMC filed a motion to determine that the appellant had waived his right to a formal administrative hearing because no “petition or response of any kind” had been received from the appellant. A hearing on the motion was held before the Board in which the appellant argued that his November 16th letter was a timely response to the complaint. FEMC countered that the appellant was required to respond within 21 days from the date of service on October 14, 2009, in other words by November 4, 2009, so the letter was untimely. The Board concluded the appellant waived his right to a formal hearing and proceeded with an informal hearing. On May 19, 2010, the Board issued a final order that reprimanded and suspended the appellant’s PE license for one year, imposed a fine of $1,000, and ordered that the appellant pay costs of $1,150. Additionally, the order provided that the appellant would be required to appear before the Board as a condition of reinstatement.

“A party who is adversely affected by final agency action is entitled to judicial review.” § 120.68(1), Fla. Stat. (2010). A reviewing court may remand or set aside agency action when it finds that the validity of the action depends on disputed facts and there has been no hearing prior, or when it finds the agency action is dependent on a material error in procedure, on an incorrect interpretation of law, or otherwise constitutes an abuse of discretion. See § 120.68(7), Fla. Stat. (2010).

Under Florida Administrative Codé rule 28-106.111(2), “[ujnless otherwise provided by law, persons seeking a hearing on an agency decision which does or may determine their substantial interests shall file a petition for hearing with the agency within 21 days of receipt of written notice of the decision.” Section 120.54(5)(b)4, Florida Statutes (2010), provides that a petition for administrative hearing must include:

a. The identification of the petitioner.
b. A statement of when and how the petitioner received notice of the agency’s action or proposed action,
e.An explanation of how the petitioner’s substantial interests are or will be affected by the action or proposed action.
d. A statement of all material facts disputed by the petitioner or a statement that there are no disputed facts.
e. A statement of the ultimate facts alleged, including a statement of the specific facts the petitioner contends warrant reversal or modification of the agency’s proposed action.
f. A statement of the specific rules or statutes that the petitioner contends require reversal or modification of the agency’s proposed action, including an explanation of how the alleged facts relate to the specific rules or statutes.
g. A statement of the relief sought by the petitioner, stating precisely the action petitioner wishes the agency to take with respect to the proposed action.

Under section 120.569(2)(c), Florida Statutes (2010):

A petition shall be dismissed if it is not in substantial compliance with [the requirements of section 120.54(5)(b)4] or it has been untimely filed. Dismissal of a petition shall, at least once, be without prejudice to petitioner’s filing a timely amended petition curing the defect, unless it conclusively appears from the face of the petition that the defect cannot be cured. The agency shall promptly give written notice to all parties of the action taken on the petition, shall state with particularity its reasons if the petition is not granted, and shall state the deadline for filing an amended petition if applicable.

In the instant case, record evidence shows, and FEMC does not dispute, that the appellant actually received the administrative complaint on October 27, 2009, 13 days after the date on the certifícate of service. Therefore, because he had until November 17, 2009, to timely respond, his November 16th letter was in fact timely. Although his letter did not specifically request a formal administrative hearing, the letter clearly indicated that the appellant disputed material allegations in the complaint. Therefore, it should have been treated as a sufficient request for administrative hearing. See McIntyre v. Seminole County Sch. Bd., 779 So.2d 639 (Fla. 5th DCA 2001) (remanding for a formal hearing where employee’s letter to school board did not explicitly request a hearing, but raised issues of disputed facts and should have been considered a sufficient hearing request). Even if his letter was a deficient petition for administrative hearing under section 120.54(5)(b)4, the appellant should have at least been provided the opportunity to file an amended petition. See § 120.569(2)(c). Because we find that the appellant did not waive his right to administrative hearing, we reverse the final order on appeal and remand for proceedings pursuant to section 120.57(1).

VAN NORTWICK, LEWIS, and ROBERTS, JJ., concur.

      . FEMC provides administrative, investigative, and prosecutorial services to the Board pursuant to section 471.038, Florida Statutes (2010).


text:
    STATE, DEPARTMENT OF REVENUE by and on behalf of Elizabeth CARNLEY, Petitioner, v. Kenneth LYNCH, Respondent.
    No. 1D10-2391.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Petitioner.
    Kenneth Lynch, pro se, Respondent.
   PER CURIAM.

The Department of Revenue (“the Department”), Petitioner, seeks a writ of cer-tiorari quashing a non-final order requiring Elizabeth Carnley and her child to submit to genetic paternity testing requested by Kenneth Lynch, Respondent, and ordered by the circuit court on the recommendation of a child support enforcement hearing officer. Because Lynch failed to show good cause to justify the hearing officer’s recommendation, we hold that the circuit court departed from the essential requirements of the law. Because this departure may result in harm that cannot be remedied on appeal, we grant the petition and quash the order under review.

On March 13, 2009, the Department issued a Final Administrative Support Order pursuant to section 409.2563, Florida Statutes (2009), which provided that Lynch had a legal duty to contribute to the support of Carnle/s child, who was born in November 2005, “because he is the father and a noncustodial parent.” The order further provided that paternity had been “legally established by affidavit or voluntary acknowledgment.” Rather than requesting an administrative hearing or filing a notice of appeal, Lynch filed a Motion for Scientific Paternity Testing on March 24, 2009, requesting genetic testing because “very little or no substantial proof of paternity or nonpaternity [was] available in this action.”

Several months later, on September 29, 2009, the Department filed a petition with the circuit court seeking enforcement of its final administrative support order. The Department did not address Lynch’s motion for genetic testing; rather, the Department requested, among other relief, that the circuit court make written findings of fact that Lynch failed to pay his current child support obligation and to make periodic payments to reduce his retroactive support obligation, and also requested an order requiring Lynch to comply with the administrative order. Lynch responded by filing a letter alleging the following.

I have ask[ed] for DNA from day one in this case but the State won’t give me the DNA test. I did not sign my name on that birth certificate, so I am asking you to grant me DNA testing in this case.... Iam not the father of the child ... so will you please do [a] DNA [test] so we can clear this matter up.

The matter proceeded to an administrative hearing before a child support enforcement hearing officer on February 9, 2010. There, the hearing officer noted Lynch’s “numerous” requests for DNA testing and continued the matter for an additional hearing to resolve the “dispute about the DNA” despite the Department’s objections that considering this matter was beyond the scope of the hearing officer’s authority. At the April 6, 2010, hearing, the hearing officer construed the father’s letter as a petition to disestablish paternity and found that because it was in the best interests of the child “to find out if [Lynch] is the father,” the parties should submit to genetic testing, which the hearing officer classified as “unobtrusive, cheap, and reliable.” The hearing officer drafted a recommended order reflecting this position, which ordered the parties “to submit to a DNA test.” The circuit coux-t ratified and approved the hearing officer’s recommended “Order Compelling Genetic Testing” on April 8, 2010. This petition follows.

To be entitled to certiorari relief, the petitioner must demonstrate that the order under review departs from the essential requirements of the law and that the order will cause irreparable harm that cannot be remedied via plenary appeal. See State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 158-59 (Fla. 1st DCA 2007); see also State, Dep’t of Revenue ex rel. Striggles v. Standifer, 990 So.2d 659, 661 (Fla. 1st DCA 2008). A ruling constitutes a departure from the essential requirements of the law when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Yang Enters., Inc. v. Georgalis, 988 So.2d 1180, 1183 (Fla. 1st DCA 2008) (citations omitted). The term “clearly established law” refers to “recent controlling case law, rules of court, statutes, and constitutional law.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003).

Florida Family Law Rule of Procedure 12.491(e) provides that a child support enforcement hearing officer “does not have the authority to hear contested paternity cases.” Standifer, 990 So.2d at 661; Travis, 971 So.2d at 162. Additionally, “no party to any family law proceeding is entitled to an order requiring another party to submit to genetic testing unless (1) the proceedings place paternity ‘in controversy’ and (2) ‘good cause’ exists for the testing.” Travis, 971 So.2d at 162 (citation omitted). Regarding the first requirement, paternity can be placed “in controversy” during proceedings conducted by a child support enforcement hearing officer if the purported father files documentation alleging that he is not the biological father or by asserting that he has not acknowledged his fatherhood in an affidavit executed in conformity with section 742.10(1), Florida Statutes (2009), or by “otherwise putfting] paternity at issue.” Dep’t of Revenue ex rel. Sharif v. Brown, 980 So.2d 590, 590-91 (Fla. 1st DCA 2008). With respect to the second requirement, “good cause” would have existed for genetic testing under these facts if Lynch had instituted proceedings under section 742.10(4), Florida Statutes (2009), or section 742.18(1), Florida Statutes (2009), to “disestablish” paternity. Travis, 971 So.2d at 161. Specifically, a party may disestablish paternity under section 742.10(4) “on the basis of fraud, duress, or material mistake of fact, with the burden of proof upon the challenger.” “Absent any such allegation, and absent proof in support [of the allegation,]” the party challenging paternity fails to show good cause. Travis, 971 So.2d at 161. Under section 742.18(1), “a male may disestablish paternity or terminate a child support obligation when the male is not the biological father of the child” by filing a petition in the circuit court that includes the following documents:

(1) an affidavit averring “that newly discovered evidence relating to the paternity of the child has come to the petitioner’s knowledge since the initial paternity determination or establishment of a child support obligation”; (2) the results of a paternity test generally accepted within the scientific community demonstrating a probability that the petitioner cannot be the biological father of the child or an affidavit alleging that the petitioner lacked access to the child that scientific testing requires; and (3) an affidavit in which the petitioner avers that he has substantially complied with any child support obligation for the child and that any delinquency resulted from his “inability for just cause to pay the delinquent child support” when it became due.

Travis, 971 So.2d at 161 (citing § 742.18(l)(a)-(c)).

In this case, Lynch placed paternity in controversy via his letter to the circuit court, which requested a DNA test based on his allegations that he was not the father of the child and that he had not signed the child’s birth certificate. Either of these allegations would have been sufficient to independently place paternity in controversy under the facts of this case. Cf Brown, 980 So.2d at 590-91 (holding that paternity had not been placed in controversy because the purported father’s response to the Department’s petition for child support and other relief “did not allege that he was not the biological father, or that he had not acknowledged his fatherhood in an affidavit ... or otherwise put paternity at issue”).

Although Lynch placed paternity in controversy in the child support proceedings pending before the child support enforcement hearing officer, he failed to show good cause to justify the hearing officer’s recommendation to require the mother and child to submit to DNA testing. In particular, although Lynch alleged that he was not the child’s biological father and that he had not signed the child’s birth certificate, he did not present any proof of fraud, duress, material mistake of fact, or newly discovered evidence that would have disestablished paternity under section 742.10(4), as he has neither provided a copy of the child’s birth certificate to show that he did not sign the document, nor provided other evidence to support his claims. See Travis, 971 So.2d at 162. Absent proof to support Lynch’s allegations, Lynch failed to show good cause to justify the circuit court’s order for paternity testing. Id. at 161-62; cf. State, Dep’t of Revenue, Office of Child Support Enforcement v. Ductant, 957 So.2d 658, 659-60 (Fla. 3d DCA 2007) (holding that because a DNA test confirmed that the purported father was not the child’s father, the purported father sufficiently established that there had been a “material mistake of fact” that was “sufficient to disestablish paternity”). Similarly, Lynch’s one-page letter to the circuit court does not present sufficient grounds to disestablish paternity under section 742.18(1), as the letter does not include the two required affidavits. See § 742.18(1)(a), (c) (describing contents of the required affidavits). Further, the letter also does not contain the results of a paternity test, which is required by section 742.18(1)(b), as the reason Lynch filed the letter was to request such a test. For these reasons, we hold that Lynch failed to show good cause to justify a court order for paternity testing.

Because no good cause was shown to justify the child support enforcement hearing officer’s recommendation to require the mother and child to submit to DNA testing, the circuit court’s order adopting this recommendation departed from the essential requirements of the law. See Travis, 971 So.2d at 162 (reaching this conclusion under similar facts). Further, because this departure may result in harm that cannot be remedied on plenary appeal, we grant the Department’s petition for a writ of certiorari, quash the order under review, and remand for further proceedings consistent with this opinion.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.

      . This Court has repeatedly held that requiring genetic testing under similar circumstances qualifies as irreparable harm. See, e.g., Dep’t of Revenue ex rel. Gardner v. Long, 937 So.2d 1235, 1237 (Fla. 1st DCA 2006) ("We find that subjecting Mother and Child to a potentially intrusive [paternity] test ... is enough to constitute irreparable harm.”); see also State, Dep’t of Revenue ex rel. Chambers v. Travis, 971 So.2d 157, 159 n. 1 (Fla. 1st DCA 2007), and the authorities cited therein.

      . Section 409.2563(l)(a) defines an “administrative support order” as "a final order rendered by or on behalf of the department pursuant to this section establishing or modifying the obligation of a parent to contribute to the support and maintenance of his or her child or children ...§ 409.2563(l)(a), Fla. Stat. (2009) (emphasis added). Thus, such orders "assume that paternity has already been established or is being established in a separate administrative proceeding pursuant to section 409.256, Florida Statutes.” Long, 937 So.2d at 1237.


author: WETHERELL, J.

text:
    FT. MYERS REAL ESTATE HOLDINGS, LLC, Appellant, v. DEPARTMENT OF BUSINESS AND PROFESSIONAL REGULATION, DIVISION OF PARI-MUTUEL WAGERING, Appellee.
    No. 1D10-1766.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      David S. Romanik, Oxford, for Appellant.

      Garnett W. Chisenhall, Chief Appellate Counsel, and Charles T. “Chip” Collette, Assistant General Counsel, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant, Ft. Myers Real Estate Holdings, LLC, seeks review of the final order dismissing its amended petition for administrative hearing challenging the denial of its amended application for a quarter horse racing permit. Appellant contends that in dismissing the amended petition, the Division of Pari-Mutuel Wagering (Division) erred in concluding that Appellant lacked standing to challenge the denial of its permit application. We agree and, therefore, reverse the order on appeal and remand with directions that the Division refer the amended petition to the Division of Administrative Hearings (DOAH) for a hearing pursuant to section 120.57(1), Florida Statutes.

In August 2009, Appellant filed an amended application for a quarter horse racing permit in Miami-Dade County. In January 2010, the Division gave notice of its intent to deny the amended application. The grounds for denial were that, contrary to the requirements of section 550.334(1), Florida Statutes (2009), the amended application 1) failed to demonstrate that the location of Appellant’s proposed facility was available for use for quarter horse racing, and 2) failed to provide reasonable supporting evidence that substantial construction of the facility would begin within one year after issuance of the permit. On the latter point, the denial letter indicated that Appellant did not own the land on which the facility was to be located and that the land purchase agreement included contingencies related to the implementation of Senate Bill 788 that may never occur.

As required by section 120.60(3), the denial letter informed Appellant of its right to request an administrative hearing on the permit denial. The letter explained that Appellant would be granted an “informal hearing” pursuant to section 120.57(2) if its petition for hearing did not dispute the facts upon which the denial was based. The letter further explained that “if you [Appellant] do dispute the material facts in the letter of permit denial and desire a hearing involving disputed issues of material fact (formal administrative hearing) under Section 120.57(1), Florida Statutes, before the Division of Administrative Hearings (DOAH), you [Appellant] must file a petition for administrative hearing in compliance with Rule 28-106.201(2), Florida Administrative Code.”

Appellant timely filed a petition for formal administrative hearing challenging the denial of its amended permit application. The petition alleged that the amended application met all of the requirements in section 550.334(1) and that the Division improperly relied on unadopted rules in denying the application. The Division entered an order dismissing the petition without prejudice because the petition “fail[ed] to establish any genuine disputed issue of material fact so as to entitle [Appellant] to a formal § 120.57(1) administrative hearing.” The order gave Appellant 21 days to file an amended petition.

Appellant timely filed an amended petition for formal administrative hearing. The amended petition explained that “[Appellant’s substantial interests are affected by the [denial letter] because [Appellant] will not receive the requested permit if the [denial letter] becomes final.” The amended petition alleged that the amended permit application met all of the requirements in section 550.334(1), including the requirement that reasonable supporting documentation be provided to demonstrate that construction of the proposed facility will commence within one year of the issuance of the permit. The amended petition further alleged that, although the land on which the facility is proposed is not currently zoned for quarter horse racing, Appellant had provided a letter from its land use attorney stating that appropriate zoning can be obtained within seven months of the issuance of the permit. The amended petition alleged that similar documentation had been accepted by the Division from other permit applicants, and like the original petition, the amended petition challenged several unadopted rules allegedly relied on by the Division to deny Appellant’s amended permit application.

On March 25, 2010, the Division entered an order dismissing the amended petition with prejudice. The dismissal order recognized that Appellant is “injured by the denial of its quarter horse application,” but nevertheless concluded that Appellant “has no injury that can be redressed in this administrative proceeding.” The dismissal order reasoned that because of the contingencies in the land purchase agreement, it was “highly speculative” that Appellant would ever acquire the land it proposed for the race track and, thus, Appellant’s claims of injury were “illusory” and “laek[ed] the sufficient immediacy and reality” required to give Appellant standing to challenge the denial of its permit application in an administrative hearing. Appellant timely appealed the dismissal order to this court.

“Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.” Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006). The standing issue in this case involves the application of general principles of administrative law over which the Division has no special expertise and, therefore, we are not required to give any deference to the legal analysis in the dismissal order. See Doyle v. Dep’t of Bus. Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001) (recognizing that a court need not defer to an agency’s construction or application of a statute if special agency expertise is not required).

Appellant argues, and we agree, that the dismissal order is contrary to the basic, settled principle of administrative law that a person whose substantial interests are determined by an agency is entitled to some kind of hearing — either formal or informal — to challenge the agency’s decision once the agency’s “free form” process is complete. The Division has not cited, nor could we locate, any case that remotely supports the proposition in the dismissal order that a permit applicant can be denied an administrative hearing to challenge the denial of its permit application on the basis of a lack of standing. Accordingly, we find the dismissal order to be meritless.

It is self-evident that the permit applicant has standing to challenge the denial of its own application. The applicant is a “party” to the permitting proceeding by operation of law because it is the specifically named person whose substantial interests are being determined by the agency’s denial of the permit. See § 120.52(13)(a), Fla. Stat. Accordingly, the permit applicant need not establish its standing under the “Agrico test,” which requires the type of non-speculative injury-in-fact that the Division found lacking in Appellant’s amended petition. See W. Frank Wells Nursing Home v. Agency for Health Care Admin., 27 So.3d 73, 74 (Fla. 1st DCA 2009) (explaining that the Agrico test applies only to third parties seeking to challenge the intended issuance of a permit); Maverick Media Group, Inc. v. Dep’t of Tramp., 791 So.2d 491, 492 (Fla. 1st DCA 2001) (same).

Where, as here, the permit applicant disputes the factual grounds on which the agency denied its application, the applicant is entitled to a hearing at DOAH under section 120.57(1). See § 120.569(1), Fla. Stat.; Village Saloon, Inc. v. Div. of Alcoholic Bev. & Tobacco, 463 So.2d 278, 285 (Fla. 1st DCA 1984) (observing that “a party has the absolute right to a formal hearing under section 120.57(1) when material facts are in dispute”). The issue for the hearing in this case, as framed by the denial letter and the amended petition, is whether Appellant meets the statutory requirements for issuance of a quarter horse racing permit, namely the requirements that the proposed location be available for use for quarter horse racing and that substantial construction of the facility will commence within one year of the issuance of the permit. Although the Division may ultimately be correct that zoning issues with the property and/or the contingencies in the purchase contract warrant the denial of Appellant’s permit application, these are matters to be determined based upon the facts developed at an administrative hearing, not through the dismissal of the Appellant’s amended petition on standing grounds. See Palm Beach County Envtl. Coal. v. Fla. Dep’t of Envtl. Prot., 14 So.3d 1076,1078 (Fla. 4th DCA 2009) (explaining that the question of whether a party has standing is different from the question of whether the party will be able to prove its case); St. Francis Parkside Lodge of Tampa Bay v. Dep’t of Health & Rehab. Sens., 486 So.2d 32, 34 (Fla. 1st DCA 1986) (explaining that, at the dismissal stage, the factual allegations in the petition must be accepted as true).

Finally, we have not overlooked the Division’s argument that this case is moot based on the recent changes in the law regarding quarter horse racing. See Ch. 2010-29, § 5, at 295, Laws of Fla. (making applications for quarter horse permits subject to section 550.054(2), which provides that an application may not be considered, or a permit issued, to conduct races at a location within 100 miles of an existing pari-mutuel facility). The Division contends that there are existing pari-mutuel facilities within 100 miles of the proposed location of Appellant’s facility, which would require the denial of the application based upon current law. Although Appellant does not dispute the proximity of the existing facilities, the record on appeal is inadequate to address this issue appropriately in light of Appellant’s contention that there are circumstances that would preclude the Division from applying the statutory changes to Appellant’s permit application in this case. See generally Lavemia v. Dep’t of Prof'l Regulation, 616 So.2d 58 (Fla. 1st DCA 1993) (explaining that the general rule is that “a change in the licen-sure statute that occurs during the pen-dency of an application for licensure is operative as to the application,” but recognizing that there are exceptions to this rule, such as the agency’s unreasonable delay in processing the application). The parties will have an opportunity to develop a record on all of these issues at the administrative hearing on remand.

Based upon the foregoing, the order on appeal is reversed, and this case is remanded to the Division with directions that it refer the amended petition to DOAH for a hearing pursuant to section 120.57(1).

REVERSED and REMANDED with directions.

WEBSTER and ROWE, JJ., concur.

      . The original application, filed in January 2009, sought a permit for a quarter horse racing facility in Lee County. In April 2009, Appellant requested that the Division suspend its processing of the application while Appellant considered an amendment to the application to change the location of the proposed facility.

      . This bill, which became Chapter 2009-170, Laws of Florida, specified terms and conditions for a gaming compact between the state and the Seminole Tribe of Florida. See Ch. 2009-170, §§ 1-3, Laws of Fla. The bill also amended certain provisions relating to quarter horse racing, see id. at §§ 4, 14-15, 20; but, those amendments were contingent upon a compact being executed, ratified by the Legislature, and not voided by the U.S. Department of Interior. Id. at § 26.

      . The order also stated that Appellant "does not dispute the basis for denial” even though the petition specifically stated that "[Appellant] disputes the factual grounds for disapproval identified in the [denial letter].”

      . The position taken by the Division in the dismissal order, and maintained in this appeal, is so contrary to the fundamental principles of administrative law that, by separate order, we have granted Appellant’s motion for attorney's fees under section 120.595(5), Florida Statutes. Accord Salam v. Bd. of Profl Eng’rs, 946 So.2d 48 (Fla. 1st DCA 2006) (awarding attorney’s fees when agency delayed ruling on a petition for formal hearing); Residential Plaza at Blue Lagoon, Inc. v. Agency for Health Care Admin., 891 So.2d 604 (Fla. 1st DCA 2005) (awarding attorney's fees because agency's dismissal of petition for hearing and denial of license was unjustified).

      . "[BJefore one can be considered to have a substantial interest in the outcome of the proceeding he must show 1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.” Agrico Chemical Co. v. Dep’t of Envtl. Reg., 406 So.2d 478, 482 (Fla. 2d DCA 1981).


author: THOMAS, J.

text:
    Frederick Marckus STALLWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5943.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Nancy A. Daniels, Public Defender, A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant appeals his judgment and sentence for trafficking in illegal drugs. He seeks reversal on two grounds, asserting: 1) the trial court erred by allowing the State to question a defense witness about his prior convictions; and 2) the State improperly bolstered its law enforcement witness during closing argument. We reverse as to the first ground for the reasons stated below. We affirm the second ground without further comment.

Factual Background

This case involved a prescription bottle containing a controlled substance that was retrieved from or near the front yard of the home of Appellant’s uncle, Kevin Du-cree. The arresting officer, a sheriffs deputy patrolling the area by bicycle, testified that he saw Appellant toss the prescription bottle as he approached Appellant’s vehicle, which was parked in front of the home. Appellant, Ducree, and another witness all testified that the bottle was placed there by someone else, with Ducree testifying that the culprit was another of his nephews.

Faced with this conflicting testimony, the State attempted to impeach Ducree’s credibility, and the following exchange occurred between the prosecutor and Du-cree:

Q. Now, Mr. Ducree, have you ever been convicted of a felony?
A. Yes, I have.
Q. How many times?
A. Numerous of times.
Q. You don’t know how many times?
A. I think you mentioned it earlier.
Q. Would eight times sound right?
A. Could be right.
Q. I’m sorry.
A. It could be right.
Q. Could be right. How about in 1993 you had—
[Defense Counsel]: Objection, Your Honor.
THE COURT: Overruled.
Q. (Prosecutor) You had a conviction for insurance fraud, correct?
A. Yes.
Q. And then you also had two counts of uttering forged instruments, correct?
A. That was along with the — yes.
Q. Right. But it’s two felony counts, uttering a forged instrument.
A. Yes, yes.
Q. Along with insurance fraud.
A. Right. And then you also had in—
[Defense Counsel]: Your Honor, I’m going to object to this. I mean, he said eight times.
THE COURT: Overruled.
Q. (Prosecutor) In 1994 you were convicted of battery on a law enforcement officer, correct?
A. Sure.
Q. And then you had two counts also in 1994 of resisting arrest with violence, correct?
A. I guess so. You’re reading it off.
Q. Yeah. And then in 1995, you were convicted of aggravated assault, correct?
A. Okay. Okay.
Q. They’re your convictions. I’ve got your fingerprints right here.
THE COURT: Counsel, ask your questions, please.
Q. (Prosecutor) And then finally in 2003 you were convicted of felony battery, correct?
A. Okay. Has that been eight years ago? Seven, six years ago?
Q. No. Battery on the law enforcement officer and resisting with violence. Would it be fair to say that you had something against police officers?
[Defense Counsel]: I’m going to object to that.
THE COURT: Sustained. Counsel.
[Prosecutor]: I’ll withdraw it. No further questions.

Appellant contends the trial court erred by overruling defense counsel’s objection to the State’s questions about Ducree’s prior convictions because this questioning was improper and procedurally incorrect. We agree.

Analysis

We review the trial court’s decision to allow the State to continue questioning Ducree concerning his prior convictions, over Appellant’s objections, for abuse of discretion. See White v. State, 993 So.2d 611, 613 (Fla. 1st DCA 2008) (holding “[r]ulings regarding the admissibility of evidence are generally subject to an abuse of discretion standard of review.”).

Section 90.610(1), Florida Statutes, provides:

A party may attack the credibility of any witness, including an accused, by evidence that the witness has been convicted of a crime if the crime was punishable by death or imprisonment in excess of 1 year under the law under which the witness was convicted, or if the crime involved dishonesty or a false statement regardless of the punishment....

This court has held that pursuant to this evidentiary rule, “the prosecutor is permitted to attack the [witness’s] credibility by asking whether the [witness] has ever been convicted of a felony or a crime involving dishonesty or false statement, and how many times.” Gavins v. State, 587 So.2d 487, 489 (Fla. 1st DCA 1991). The court explained, “If the [witness] admits the number of prior convictions, the prosecutor is not permitted to ask further questions regarding prior convictions, nor question the [witness] as to the nature of the crimes. If, however, the [witness] denies a conviction, the prosecutor can impeach him by introducing a certified record of the conviction.” Id.

Here, the State contends that it was entitled to question Ducree about his convictions because he attempted to mislead the jury about his prior criminal record, and also because he “implied that he had previously been asked about his prior convictions when he had not.” In support of this argument, the State points to Ducree’s statement that he had been convicted “numerous of times,” and when asked if “eight times sound[ed] right,” his response was, “Could be right.” Neither response was false, however. In addition, Ducree did not volunteer any incorrect information about the types of crimes he was convicted of committing. “[T]he prosecutor is not permitted to ask further questions regarding prior convictions, nor question the [witness] as to the nature of the crimes.” Gavins, 587 So.2d at 489. Because Ducree did not deny his prior convictions or the number of convictions, and did not otherwise mislead the jury, the trial court erred by allowing the State to further question him regarding his felony record.

Even if we agreed with the State that Ducree did not testify accurately about the existence or number of his prior convictions, this court’s opinion in Pryor v. State, 855 So.2d 134 (Fla. 1st DCA 2003), still requires a finding of error. There, this court explained:

The rule is simple. Certified copies of prior convictions are admissible to impeach a witness who falsely testifies as to the number of crimes for which he has been convicted. See § 90.610(1), Fla. Stat. (2001). The witness testifies falsely when the answer varies from the actual number of prior convictions. Thus, a witness who estimates the number of convictions, either above or below the actual number, testifies falsely and the certified copies are admissible. See Perez v. State, 648 So.2d 715 (Fla.1995). [The witness] testified falsely by giving several different answers to questions regarding his past convictions. This false testimony permits the admission of the certified copies.

Id. at 136 (footnote omitted). Here, the trial court erroneously allowed the State to question Ducree about his specific convictions rather than simply allowing into evidence the certified copies of those convictions.

The State, however, relies on a different principle discussed in Pryor to support its argument that it was entitled to question Ducree about his prior convictions. “Where a witness attempts to mislead or delude the jury about his prior convictions, the witness is subject to further questioning concerning his convictions ‘in order to negate any false impression given.’ ” Id. (quoting Fotopoulos v. State, 608 So.2d 784, 791 (Fla.1992)). In Pryor, on direct examination, the State asked their witness whether he had any prior convictions; the witness replied, “ ‘it’s been about 6 or 7 times, mostly for DUI and driving with no license and stuff like that.’ ” 855 So.2d at 135. On cross-examination, defense counsel asked the witness the number of his prior felony convictions; the witness replied,

“It’s been about 5 DUIs.” Defense counsel asked: “DUI is not always a felony, are you counting that as a felony?” [The witness] replied: “Yeah, that’s after so many of them you go [sic], you know, they turn them into felony [sic] now. It’s a felony now if I just drive.” Defense counsel asked: “So you’ve got maybe 5 or 6 or 7 felony convictions?” [The witness] responded: “That’s why I don’t get up under the wheel of a vehicle. If I go anywhere I get somebody to carry me.”

Id. Defense counsel sought to introduce into evidence certified copies of the witness’s eight felony convictions, and the trial court denied the request. Id.

Addressing this denial, this court explained, “Not only did [the witness] testify falsely about the number of prior felony convictions, he also lied about the nature of those convictions.” Based on the foregoing, this court held that the trial court erred by denying the admissibility of certified copies of the witness’s convictions because it “kept crucial information from the jury and prevented the defense from emphasizing [the witness’s] actual criminal background in response to the State’s closing argument.” Id.

Significantly, in Pryor, the witness volunteered that he had prior felony convictions, but they were “mostly for DUI and driving with no license and stuff like that.” 855 So.2d at 135. It was this inaccuracy in both the number and type of convictions that allowed the defense to question him further regarding the felonies. Here, Du-cree volunteered nothing beyond confirming his prior felony convictions; thus, there was no reason to question him further for impeachment purposes. Furthermore, it is important to emphasize that in Pryor, once the defense confirmed the witness’s position on the number and types of convictions, it sought to impeach him by placing into evidence certified copies of the convictions. That is what the State should have done here.

Consequently, the trial court here abused its discretion by allowing the State to continue questioning Ducree as to the exact nature of all eight of his convictions. See Rodriguez v. State, 761 So.2d 381, 383 (Fla. 2d DCA 2000) (holding, “When the witness admits his or her convictions, a trial court errs by allowing the State to question the witness about the specific convictions. Even if [the witness] had been denied being previously convicted of a felony, the trial court would have erred by permitting the prosecutor to question [him] about his prior convictions. Rather, the prosecutor should have impeached [the witness] by entering into the record certified copies of his prior convictions.”) (citations omitted). Accord, Kyle v. State, 650 So.2d 127, 127-28 (Fla. 4th DCA 1995).

The remaining question for our consideration is whether the trial court’s error was harmless. Appellant argues it was not harmless because the verdict depended on the credibility of the police officer and the defense witnesses, whereas the State argues it was harmless because there was “overwhelming evidence of guilt” based on the officer having “observed appellant throw down the pill bottle when the officers arrived.” “The burden rests with the state, as the beneficiary of the error, to establish to the exclusion of all reasonable doubt that the error did not affect the verdict.” White, 993 So.2d at 613.

Although there was no dispute that the pill bottle was found in or near Ducree’s front yard, there was a dispute as to whether Appellant or his cousin put it there. Only the arresting officer testified that he saw Appellant toss the pill bottle, whereas Ducree, Appellant, and another witness all testified to the contrary. Although Ducree’s testimony was inconsistent at times, by allowing the State to question him concerning his prior convictions, the door was opened to an exchange regarding the nature of those convictions, thus likely prejudicing Appellant’s case. This is particularly so in light of the State’s comments during closing argument highlighting Ducree’s convictions of battery on a law enforcement officer and resisting with violence.

Furthermore, the State’s assertion that Appellant’s conviction was based on “overwhelming evidence” is meritless. The State essentially relied on the testimony of a single witness, the arresting officer. Consequently, as Appellant correctly argues, “the verdict hinged on whether the jury believed [the arresting officer] or the defense witnesses.” Thus, the trial court’s error was not harmless.

Conclusion

For the foregoing reasons, the judgment below is REVERSED and REMANDED for proceedings consistent with this opinion.

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