author: BLACK, Judge.

text:
    Martha Hodgson LEE, Appellant, v. Mary COLE, individually and as Trustee for the Hodgson Family Living Trust Agreement, and Kevin Hodgson, Appellees.
    No. 2D09-2662.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2010.
    Rehearing Denied Nov. 10, 2010.
    Lynwood F. Arnold, Jr. and Elizabeth J. Maykut, Tampa, for Appellant.
    J. Bruce Harper and Dennis R. Pember-ton, of Harper, Kynes, Geller, Greenleaf, Vogelbacher & Frayman, Clearwater, for Appellee Kevin Hodgson.
    David C. Levenreich, Clearwater, for Appellee Mary Cole.
   BLACK, Judge.

Martha Hodgson Lee appeals from a final order granting summary judgment in favor of Kevin Hodgson. Although we agree with the trial court’s findings of facts and would otherwise affirm the order on appeal, we are forced to reverse, finding that Hodgson is an indispensable party-

This case concerns the sale of a house in St. Petersburg Beach, Florida. Hodgson and his sister, Mary Cole, a codefendant in the lawsuit, purchased the house on October 17, 2000. The house was an asset of the Hodgson Family Living Trust (the Trust), of which Ms. Cole is the trustee. Ms. Lee, a beneficiary under the Trust, originally filed suit in November 2005 against Ms. Cole, both as trustee and individually, seeking removal of Ms. Cole as trustee, an accounting, and a surcharge against Ms. Cole for any loss or damage to the Trust as a result of Ms. Cole’s alleged breach of fiduciary duty.

In November 2007, Ms. Lee amended her complaint to add a fourth count seeking to have the sale of the house to Mr. Hodgson and Ms. Cole declared void and joining her brother, Mr. Hodgson, as a defendant. Mr. Hodgson is only a party to count four of the amended complaint and it is only that count on which summary judgment was granted. Although the case remains pending against Ms. Cole, the summary judgment totally disposed of the entire case as to Mr. Hodgson and the action against him was dismissed. Therefore, this court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.110(k).

Although Ms. Lee raises multiple arguments on appeal, we agree only with Ms. Lee’s contention that summary judgment was inappropriately granted because Mr. Hodgson is an indispensable party. Where a party seeks to have a deed declared void, all holders of legal title to the property are indispensable parties. Allen Damron Constr. Co. v. Mickens, 725 So.2d 1174, 1175 (Fla. 2d DCA 1998); Allman v. Wolfe, 592 So.2d 1261, 1262-63 (Fla. 2d DCA 1992). An indispensable party is one whose legal or beneficial interest in the subject matter makes it impossible to completely adjudicate the matter without affecting that party’s interest. Florida Dep’t of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006); Allman, 592 So.2d at 1263 (quoting Grammer v. Roman, 174 So.2d 443, 445 (Fla. 2d DCA 1965)). Thus, because Mr. Hodgson is a grantee under the deed, he is an indispensable party and cannot be dismissed from the suit.

We note that the record otherwise supports a grant of summary judgment. Specifically, Ms. Cole did not breach her duties as trustee by failing to disclose the terms of the sale; Ms. Lee and the other beneficiaries of the Trust were made aware of the purchase price, the contract terms, and the identities of the purchasers. In fact, Ms. Lee and the other beneficiaries, as grantors, executed the deed of sale. There was no breach of any duty by Mr. Hodgson, as beneficiary of the Trust or purchaser, and there is no cognizable claim against Mr. Hodgson.

Because summary judgment for Ms. Cole was not before the court concurrently with Mr. Hodgson’s motion, the court was prohibited from disposing of count four as to both defendants. Therefore, until the court disposes of count four, seeking to have the deed declared void with respect to Ms. Cole, Mr. Hodgson must remain in the case as an indispensable party.

Reversed and remanded for further proceedings consistent with this opinion.

WALLACE and LaROSE, JJ, Concur.


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    William DREYER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-3903.
    District Court of Appeal of Florida, Second District.
    Sept. 22, 2010.
    Rehearing Denied Nov. 5, 2010.

      William Dreyer, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

William Dreyer appeals his conviction and sentence for exploitation of the elderly, as well as an order and judgment requiring him to pay restitution in the amount of $31,570. We affirm Dreyer’s conviction and sentence without comment, but we reverse the order and judgment of restitution because the only evidence supporting the amount of restitution was hearsay evidence.

“When the amount of restitution is in dispute, as in this case, the state has the burden of demonstrating by a preponderance of the evidence the amount of the victim’s loss.” Thomas v. State, 581 So.2d 992, 993 (Fla. 2d DCA 1991). When a defendant objects to hearsay evidence at a restitution hearing, the hearsay evidence is inadmissible to prove the amount of restitution. See Moore v. State, 694 So.2d 836, 837 (Fla. 2d DCA 1997); Thomas, 581 So.2d at 993. It is improper for a witness to offer hearsay testimony regarding determinations of value that the witness received from other people. See Atkins v. State, 728 So.2d 288, 289 (Fla. 2d DCA 1999).

Here the State presented the testimony of Detective Adams to establish the amount of money Dreyer stole from the victim. However, Detective Adams did not have personal knowledge of that amount; rather, she received that information from employees of the victim’s financial institutions and from financial statements from those institutions. Because Dreyer objected to Detective Adams’ testimony on the basis of hearsay, it was improperly admitted.

In addition, the State introduced into evidence, over Dreyer’s objection, the financial statements to show the amount stolen from the victim. Detective Adams was the only witness for the State, and she did not have the requisite knowledge to establish the proper foundation for the admission of the financial statements under the business records exception to the hearsay rule. See § 90.803(6)(a), Fla. Stat. (2008); Medlock v. State, 537 So.2d 1030, 1031 (Fla. 2d DCA 1988) (“[Section 90.803(6)(a) ] clearly require[s] the records custodian or other qualified person employed by the bank to testify regarding the necessary predicate before the bank statement could be admitted into evidence. Without that foundation, the evidence is inadmissible as hearsay.” (citing Dietz v. State, 534 So.2d 808 (Fla. 2d DCA 1988))). Therefore, the trial court erred in admitting the financial statements without the proper foundation laid by qualified employees of the financial institutions.

The State contends that Detective Adams’ testimony that Dreyer admitted stealing money from the victim was sufficient to establish the amount of restitution. However, Detective Adams testified that Dreyer admitted stealing “a slightly lower amount” than that reported to Detective Adams during her investigation. Therefore, Dreyer’s admission was not sufficient to establish the amount of restitution ordered by the trial court.

Because the only evidence establishing the amount of restitution was improper hearsay evidence, we reverse the order and judgment of restitution and remand for a new hearing to determine the amount of restitution.

Affirmed in part; reversed in part; remanded.

DAVIS and CRENSHAW, JJ„ Concur.


author: SUAREZ, J.

text:
    Paul BATES, Appellant, v. The BETTY & ROSS COMPANY, INC., et al., Appellees.
    No. 3D09-2071.
    District Court of Appeal of Florida, Third District.
    Sept. 29, 2010.
    Rehearing Denied Nov. 9, 2010.

      McDonald & McDonald and David M. McDonald, Miami, for appellant.
    Timothy Nicholas Thornes, Key Largo, for appellees.
    Before RAMIREZ, C.J., and SUAREZ and SALTER, JJ.
   SUAREZ, J.

The appellant (“Paul Bates”) appeals a non-final order terminating arbitration. We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(iv). We reverse the order terminating arbitration and remand for further proceedings, finding that the Arbitration Agreement in question requires arbitration of the facts contained in the Amended Claim and, even if not, we find that the parties were collaterally estopped from raising the issue before the trial court.

This arbitration matter arose from the filing of a civil complaint for damages against the appellees, The Betty & Ross Co., a dissolved corporation, and Alec Ross, for breach of contract based on mortgage agreements and promissory notes, damages for money due, including legal fees and costs of litigation, and civil theft. After the complaint was filed, the parties voluntarily entered into an arbitration agreement which required them to submit to arbitration “with respect to the allegations in the complaint.” The trial court then ordered the case to arbitration. Once the matter was in arbitration, Bates filed an Amended Claim alleging wrongful conduct on the part of Alec Ross, individually, and against the corporation for bad faith in providing incorrect payoff information for refinancing with regard to the loans. The civil theft allegations were dropped. The Betty & Ross Co. and Alec Ross moved the Arbitration Panel to terminate arbitration, arguing that Bates had breached the arbitration agreement by substituting a different set of allegations not encompassed by the original arbitration agreement that, they contend, are not subject to arbitration. The Arbitration Panel found a nexus between the new claims and those contained within the arbitration agreement and denied the motion to terminate arbitration without prejudice. Unhappy with the Arbitration Panel’s decision, Alec Ross then moved in the Monroe County Circuit Court to terminate arbitration basically on the same grounds as previously argued before the Arbitration Panel. The trial judge granted the motion to terminate arbitration. The granting of Ross’s motion to terminate is now before this Court on non-final review.

Bates contends on appeal that the Amended Claim includes issues essentially the same as those in the original complaint — claims for causing Bates’s inability to refinance loans by supplying incorrect payoff information, incorrectly alleging that a default had occurred, charging an inappropriate interest rate and failing to provide funds at closing — stemming from the breach of contract action claim on the mortgage agreements. Bates contends that it was an abuse of the trial court’s discretion to terminate arbitration and to refuse to allow the Amended Claim in contravention of Florida’s liberal rule of allowing amendment of pleadings where there is no prejudice to the opposing party. See Stirman v. Michael Graves Design Group, Inc., 983 So.2d 626 (Fla. 3d DCA 2008).

In determining whether or not certain issues fall within the scope of an arbitration agreement, the scope of the agreement should be resolved in favor of arbitration, not against it. See Waterhouse Constr. Group v. 5891 S.W. 64th St., LLC, 949 So.2d 1095 (Fla. 3d DCA 2007); Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So.2d 969 (Fla. 5th DCA 1995). Here, the parties’ Arbitration Agreement states that it encompasses all issues “with respect to the allegations in the complaint.” The American Heritage Dictionary defines “respect” with the synonym “regard.” “Regard” is defined as “concerning or with respect to.” The facts alleged in the Amended Claim “concern” the allegations in the complaint for damages as they are contained within the facts as alleged in the complaint itself, and are stated within the appellees’ affidavit in support of its motion for summary judgment. These facts certainly “regard” the claims the appellant has presented before the Arbitration Panel on the breach of contract action. We construe the facts stated in the Amended Claim as having been alleged “with respect to” those allegations in the original complaint. The Amended Claim therefore comes within the scope and meaning of the arbitration clause. Cf. Seifert v. U.S. Home Corp., 750 So.2d 633, 638 (Fla.1999) (holding that the determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause). Because the Amended Claim is subject to arbitration, we reverse the grant of the appellees’ motion to terminate arbitration.

Moreover, we agree that the parties were collaterally estopped from even bringing this issue before the trial court. “Several courts have appropriately concluded that a determination made during an arbitration proceeding can provide an appropriate foundation for the application of collateral estoppel.” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1235 (Fla.2006). The parties in this case were collaterally estopped from bringing the issue of whether termination was appropriate before the circuit court by first raising the issue before the Arbitration Panel and receiving a ruling from the panel. The essential elements of collateral estoppel, that the parties and issues are identical and that the particular matter was fully litigated and determined resulting in a final decision of a court of competent jurisdiction, are present here. See Dep’t of Health & Rehab. Servs. v. B.J.M., 656 So.2d 906, 910 (Fla.1995). Therefore, the determination made in the arbitration proceeding by the Arbitration Panel to deny the motion to terminate arbitration bars the trial court from hearing the motion to terminate arbitration under the doctrine of collateral estoppel. Dadeland Depot, Inc., v. St. Paul Fire & Marine Ins. Co., 945 So.2d at 1216.

We therefore reverse the order below terminating the arbitration proceeding, and remand to transfer the cause to the Arbitration Panel for further consideration.

Reversed and remanded with directions.


author: WHATLEY, Judge.

text:
    COUNTRYWIDE HOME LOANS, INC., Appellant, v. Dolores SOTERN, Appellee.
    No. 2D09-4650.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2010.
    Benjamin B. Brown, Andrew G. Tretter, and Kevin R. Lottes of Quarles & Brady, LLP, Naples, for Appellant.
    Brian M. Beason of Wilkins Frohlich, P.A., Port Charlotte, for Appellee.
   WHATLEY, Judge.

Countrywide Home Loans, Inc. challenges the final judgment declaring its mortgage on property once owned by Dolores Sotern to be invalid. We reverse.

In November 2005, Mrs. Sotern’s husband was diagnosed with terminal brain cancer. He died two months later. During those two months, the Soterns’ longtime friend Charles Landwer visited them in their Florida home four or five times. The Soterns first met Landwer when he prepared their tax returns for free at a senior center in the Illinois town where they owned a home at the time. Landwer prepared their returns for several years thereafter, and he did the closing on their Illinois and Florida homes. He held himself out to the Soterns to be an attorney and a certified public accountant. To Mrs. Sotern’s great detriment, it turned out he was neither.

During Landwer’s visits with the So-terns prior to Mr. Sotern’s death, Landwer advised them that their joint assets were in jeopardy because of Mr. Sotern’s credit card bills. The Soterns were not aware that this advice was wrong, particularly with regard to the Florida home, which was subject to homestead protections. But with the intent to protect the Florida home from Mr. Sotern’s creditors, the So-terns agreed to execute a warranty deed transferring title to the home. Mrs. So-tern’s testimony at trial was conflicting regarding whether Landwer advised them to put the home in her name or in Land-wer’s name. The warranty deed they signed conveyed the home to Landwer, who then recorded the deed.

Shortly after Mr. Sotern’s death, Mrs. Sotern became concerned that her home was not in her name. She contacted Landwer about this concern, and he sent her an unsigned deed to the property dated February 14, 2006, as a showing of good faith. Later that month, Landwer obtained a $150,000 loan secured by a first mortgage on the home. One of the documents Landwer executed to procure the loan was an affidavit in which he swore that there were no parties who had an interest in the property other than him. Several months later, Mrs. Sotern, still trusting the man she thought was her friend and attorney, invested $75,000 in Landwer’s business. It was not until October 2006 that she learned that Landwer had mortgaged what she considered her home. Landwer executed a warranty deed conveying the property back to Mrs. Sotern, but she declined to record it. Landwer stopped making payments on the mortgage, and it went into default.

Mrs. Sotern filed this action to void Countrywide’s mortgage, and Countrywide counterclaimed, seeking to foreclose. After a bench trial, the trial court found that the Soterns had been induced by Land-wer’s fraudulent actions and undue influence to convey their home to him. It further found that Countrywide’s mortgage was invalid because Countrywide had constructive notice of Mrs. Sotern’s interest in the property by virtue of her possession of it. The trial court’s ruling was incorrect because actual notice is required under these circumstances. See Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934); Am. Metro. Mortg., Inc. v. Maricone, 423 So.2d 396 (Fla. 2d DCA 1982); Roberts v. Bass, 111 So.2d 455 (Fla. 1st DCA 1959).

Maricone is directly on point. Maricone deeded her home to Van Kirk, in whom she placed considerable trust, in order to arrange loans to invest in Van Kirk’s business. Van Kirk mortgaged the property and used the proceeds for his own purposes. The trial court voided the mortgages upon a finding that the mortgagees had notice of Maricone’s interest in the property because she continued to reside in the home. This court reversed, holding as follows:

The [trial] court overlooked the decisions in Reasoner v. Fisikelli, 114 Fla. 102, 153 So. 98 (1934), and Roberta[s] v. Bass, 111 So.2d 455 (Fla. 1st DCA 1959), which hold that an equitable owner who creates record title in another while retaining possession is estopped from disputing record title in the absence of express actual notice to the contrary.
An officer of Central Plaza drove by the property to view its condition and location. The officer saw that it was occupied but made no inquiry of the occupants. Melva Maricone contends that Central Plaza, having undertaken inspection, was on notice of all facts which an inquiry would have revealed. Since appellee created title in the mortgagor, as between the mortgagees and her, she must'bear the loss. “The object of the law in holding possession implied actual notice of an adverse right is to protect the possessor from the acts of others who do not derive their title from him. It is never to protect the possessor against his own acts....” Reasoner v. Fisikelli, 153 So. at 99.

423 So.2d at 397.

Accordingly, we reverse and remand with directions consistent with this opinion.

CASANUEVA, C.J., and KHOUZAM, J., Concur.

      . The loan was originated by Bancgroup Mortgage Corporation, but it was assigned to Countrywide at closing. The Soterns had bought the home with cash.


author: PER CURIAM.

text:
    James FARMER, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4638.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2010.
    James Farmer, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


text:
    Leroy E. TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2529.
    District Court of Appeal of Florida, First District.
    Oct. 12, 2010.
    Leroy E. Taylor, pro se, Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


text:
    Jimmy D. STARKES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2594.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2010.
    Jimmy D. Starkes, pro se, Appellant.
    Bill McCollum, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). His motion alleges that the trial court erred in imposing a habitual felony offender sentence for the offense of possession of cocaine. Section 775.084(l)(a)(3), Florida Statutes, provides that the felony for which the defendant is being sentenced and one of the two predicate offenses cannot be a conviction relating to the purchase or the possession of a controlled substance. The postconviction court failed to attach any record attachments which refute the appellant’s claim that he was habitualized for a possession conviction.

Accordingly, we reverse the denial of the rule 3.800(a) motion and remand to either attach portions of the record refuting the appellant’s claim or strike the habitual felony offender designation.

REVERSED AND REMANDED.

WEBSTER, LEWIS, and MARSTILLER, JJ„ concur.


text:
    Doyle E. MACKS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3437.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2010.

      Doyle E. Macks, Jr., pro se, Appellant.
    Bill McCollum, Attorney General, and Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On November 21, 2003, following pleas of nolo contendere, the appellant was convicted of a number of crimes in multiple cases and sentenced to a total of 15 years’ imprisonment to be followed by 40 years on probation. On February 16, 2010, the appellant filed a motion to correct illegal sentence asserting two claims. We affirm the denial of ground one without further discussion. However, for the reasons discussed below, we reverse and remand the denial of ground two.

In ground two, the appellant asserts that for some charges he was sentenced to terms of imprisonment exceeding the statutory máximums. The judgment and sentence indicates that the appellant was sentenced to 15 years’ imprisonment to be followed by 120 months on probation for multiple counts of burglary of an unoccupied dwelling, a second-degree felony punishable by a maximum of 15 years’ imprisonment. See §§ 775.082(3)(c); 810.02(3)(b), Fla. Stat. (2003). Thus, it appears the appellant’s sentences are illegal. See Stephens v. State, 677 So.2d 1325, 1325 (Fla. 2d DCA 1996) (stating that a “sentence, which includes the incarcerative portion of the sentence and the probationary or community control period, may not exceed the statutory maximum for the offense”). Although it appears the sentences were imposed pursuant to a negotiated plea agreement, a defendant cannot plead to a sentence in excess of the statutory maximum. See Larson v. State, 572 So.2d 1368 (Fla.1991) (“[A] defendant cannot by agreement confer on a judge authority to exceed the penalties established by law”). Accordingly, we reverse and remand the denial of ground two for further proceedings consistent with this opinion.

AFFIRMED in part, REVERSED and REMANDED in part.

WOLF, DAVIS, and WETHERELL, JJ., concur.

      . In the order denying relief, the trial court notes that the appellant's scoresheet indicated a maximum possible sentence of 395 years’ imprisonment plus 2 years in county jail. However, that fact is irrelevant to whether the appellant’s individual sentences are legal. See Cooper v. State, 960 So.2d 849 (Fla. 1st DCA 2007) (holding that a 20-year sentence for a second-degree felony' was illegal and rejecting the idea that, because defendant could be legally sentenced to a total of 20 years by reducing one sentence but imposing others consecutively, there was no sentencing error, and stating ”[t]he sentence for each charge must be a legal sentence”).


text:
    Torrey BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4791.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2010.

      Torrey Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. This disposition is without prejudice to petitioner’s right to pursue his legal remedy in the pending appeal of Brown v. State, case number 1D10-4793.

PETITION DENIED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Steven Maldonado LOPEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3841.
    District Court of Appeal of Florida, First District.
    Oct. 14, 2010.
    Michael E. Grabner of Staats, White & Grabner, Panama City, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Williams, 9 So.3d 658 (Fla. 4th DCA 2009).

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    D.T.M., A Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2936.
    District Court of Appeal of Florida, Fifth District.
    Oct. 14, 2010.
    James S. Purdy, Public Defender and David S. Morgan, Assistant Public Defender, Daytona Beach, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Robin A, Compton, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

D.T.M. (a juvenile) has filed a petition seeking a writ of habeas corpus, claiming that he is being unlawfully detained because the trial court improperly violated his probation without any affidavit of violation having been filed. We agree.

Rule 8.120(a)(2) of the Florida Rules of Juvenile Procedure requires that “[a]ny proceeding alleging a violation shall be initiated by the filing of a sworn affidavit of the material facts supporting the allegation ... executed by the child’s juvenile probation officer or other person having actual knowledge of the facts.” The trial court may initiate revocation proceedings by the entry of an order, but that order “must incorporate and reference the affidavit described in subdivision (a)(2).” Fla. R. Juv. P. 8.120(a)(4).

In this case, no affidavit appears in the record or court docket. The docket merely indicates that the trial court received an e-mail alleging that D.T.M. had absconded in violation of his probation. The plain language of rule 8.120 requires a sworn affidavit.

Accordingly, we grant D.T.M.’s petition and order that he be released from commitment and reinstated to probation. This order is without prejudice to the initiation of a proper revocation proceeding.

PETITION GRANTED.

PALMER, ORFINGER and EVANDER, JJ., concur.


text:
    Kelvin Lamont MOSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2313.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the judgment and sentence. However, our review of the record revealed a scrivener’s error in the written judgment and sentence. Inadvertently, despite the fact that the trial court orally pronounced the sentence as a habitual felony offender sentence, the trial court failed to. check the habitual felony offender designation on the written judgment and sentence. Accordingly, we remand with directions to the trial court to correct this scrivener’s error.

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


text:
    Percival FERRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2946.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Percival Ferris, pro se, Appellant.

      Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the denial of a motion to correct illegal sentence. For the reasons discussed below, we reverse.

The appellant was sentenced to five years’ imprisonment on count one as both a PRR and an HVFO. A trial court cannot impose equal concurrent PRR and HVFO sentences. See Grant v. State, 770 So.2d 655 (Fla.2000); Hankins v. State, 886 So.2d 1026 (Fla. 2d DCA 2004) (“Under the holding in Grant, [the defendant] can receive both enhancements to his sentence so long as the habitual offender designation is longer than, not equal to or shorter than, the term required as a prison releasee reoffender”). The proper remedy is for the trial court to strike the HVFO designation for count one. Hankins, 886 So.2d at 1026; Rule v. State, 997 So.2d 1274 (Fla. 2d DCA 2009).

REVERSED AND REMANDED.

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Mark WATSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2979.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Mark Watson, pro se, Petitioner.
    Bill McCollum, Attorney General, Therese A. Savona, and Anne C. Conley, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Mark Watson is hereby afforded a belated appeal from the order denying motion to correct illegal sentence in Alachua County case number 2001-CF-003657-A. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(b)(5)(D).

PETITION GRANTED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Darshan SPENCER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3147.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Darshan Spencer, pro se, Petitioner.

      Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Darshan Spencer is hereby afforded belated appeal of the order denying postconviction relief in Leon County case number 2004-CF-714. Upon issuance of mandate in this cause, a copy of the opinion shall be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Joshua S. REID, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-3506.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Joshua S. Reid, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

The circuit court’s order sought to be reviewed is not final. Petitioner also fails to demonstrate any injury which cannot be remedied by review of final order. Accordingly, the petition for writ of certiorari is denied.

PETITION DENIED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ., concur.


text:
    Christopher J. STALLWORTH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-2674.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Christopher J. Stallworth, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Christopher Joseph Stallworth is hereby afforded a belated appeal from judgment and sentence in Escambia County case number 2008-CF-1781A. Upon issuance of mandate in this cause, case number 1D09-5347 shall be reinstated by the clerk of this court.

PETITION GRANTED.

WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.


text:
    Jimmy BOWDEN, Jr., Appellant, v. STATE of Florida, Appellee.
    Nos. 1D09-3600, 1D09-3603.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2010.
    Jeffrey Lems, Regional Conflict Counsel and Sheila Callahan, Assistant Regional Conflict Counsel, Office of Regional Conflict Counsel, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Anne C. Conley, Assistant Attorney General, and Meredith Charbula, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

After the filing of Anders briefs by defense counsel for each of the trial proceedings now on appeal and upon our independent review of the judgment and sentence in State v. Bowden, Case No. 2008 CF 004173 (Fla.2d Cir. Ct., June 17, 2009), the judgment and sentence in that ease are affirmed.

Regarding the judgment and sentence, order of probation, and order granting in part and denying in part the appellant’s motion to correct sentencing errors in State v. Bowden, Case No. 2007 CF 2997 (Fla.2d Cir. Ct., June 17, 2009), these rulings are affirmed. Biller v. State, 618 So.2d 734 (Fla.1993); Devine v. State, 636 So.2d 179 (Fla. 5th DCA 1994). Case number 2007 CF 002997 is remanded for entry of the corrected judgment and sentence as a result of the trial court’s ruling on the 3.800 motion, entered May 6, 2010. Mobley v. State, 968 So.2d 632 (Fla. 2d DCA 2007).

WOLF, CLARK, and ROWE, JJ., concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967); see also Forres-terv. State, 556 So.2d 1114 (Fla.1990).


text:
    Barry N. JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1436.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.

      Barry N. Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion for postconviction relief under Florida Rule of Criminal Procedure 8.850. We affirm.

Barry N. Johnson was convicted of armed robbery, burglary with an assault, and attempted first-degree murder with a firearm. His convictions were affirmed on direct appeal. Johnson v. State, 917 So.2d 226 (Fla. 3d DCA 2005).

He filed a timely motion for postconviction relief. On appeal from a summary denial, this court affirmed in part and reversed in part. Johnson v. State, 3 So.3d 412 (Fla. 3d DCA 2009). On remand there was a denial of relief, and this court affirmed. Johnson v. State, 13 So.3d 1065 (Fla. 3d DCA 2009) (table).

Defendant-appellant Johnson filed his current rule 3.850 motion on January 25, 2010 (mailbox rule). We agree with the trial court that all of the claims are time-barred except for the claim of newly discovered evidence.

The defendant has produced a recantation affidavit executed by Markeisha Jackson, who was a trial witness. Her affidavit states that she and her mother were threatened with jail time if she did not testify, and that her testimony (about assisting the defendant in going to the hospital) was untruthful.

We have taken judicial notice of the briefs on the defendant’s direct appeal, No. 3D02-982. We agree with the trial court that in view of the other evidence against the defendant, the newly discovered evidence is not of such a nature that it would probably produce an acquittal on retrial. Jones v. State, 591 So.2d 911, 915 (Fla.1991).

Affirmed.

       The trial court’s order incorrectly stated that the judgment and sentence became final on October 16, 2001. Under the circumstances present here, the defendant’s judgment and sentence became final upon the issuance of the mandate in the direct appeal. The mandate was issued on December 27, 2005. As the Rule 3.850 motion was filed over two years after December 27, 2005, the claims are time-barred except for the claim of newly discovered evidence.
      The trial court's order inadvertently states that all of the claims are time-barred and successive. However, later in the same order the trial court stated, "The only ground raised by the defendant that can be reviewed is his claim of newly discovered evidence, contained in his third ground for relief.” The court went on to deny that claim on the merits. It is clear, therefore, that the trial court did not deny the third ground as being either untimely or successive.


text:
    Francois RICHARDSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-392.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Francois Richardson, in proper person.
    Bill McCollum, Attorney General, Forrest L. Andrews, Jr., Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. Davis v. State, 661 So.2d 1193 (Fla.1995), receded, from, in part on other grounds, Carter v. State, 786 So.2d 1173 (Fla.2001); Lewis v. State, 911 So.2d 238 (Fla. 3d DCA 2005); Francois v. State, 739 So.2d 733 (Fla. 3d DCA 1999).


text:
    Stevie Mike HARPER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2729.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Carey Haughwout, Public Defender, and Barbara J. Wolfe, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Jackson v. State 785 So.2d 524 (Fla. 4th DCA 2000).

WARNER, POLEN and LEVINE, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Kenneth DANIELS, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D10-966.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing Denied Nov. 12, 2010.
    Kenneth Daniels, in proper person.
    Bill McCollum, Attorney General, and Lunar C. Alvey, Assistant Attorney General, for respondent.
    Before WELLS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The appellant, who was charged with second-degree murder but convicted of manslaughter, seeks habeas corpus relief claiming that his appellate counsel in Daniels v. State, 23 So.Sd 725 (Fla. 3d DCA 2009)(Table) was ineffective because he failed to raise a fundamental error claim based on State v. Montgomery, 39 So.3d 252 (Fla.2010). We deny the motion because, under the circumstances of this case, including the fact that the jury was given a manslaughter by culpable negligence instruction, no harmful error in fact took place. Contreras-Mayahua v. State, 40 So.3d 861 (Fla. 4th DCA 2010), Cubelo v. State, 41 So.3d 263 (Fla. 3d DCA 2010), and Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), which involve identical factual situations, require this result. In Cúbelo, for example, the court stated:

We find, as the First District found in Salonko, that the instant case is factually distinguishable from Montgomery as the Montgomery jury did not receive an instruction on culpable negligence as did the jury in the instant case. In the instant case, the jury was therefore given an opportunity (an opportunity not available to the Montgomery jury) to convict the defendant of the lesser included offense of manslaughter by culpable negligence, which clearly does not require an intent to kill. Thus, we conclude, as the First District concluded in Salonko, that because the jury was instructed on both manslaughter by act and manslaughter by culpable negligence, there was no fundamental error requiring a reversal of the defendant’s conviction for second-degree murder.

Cubelo at 267-268.

Habeas corpus denied.


text:
    Rickie HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4897.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Rickie Hamilton, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Foster v. State, 820 So.2d 365 (Fla. 1st DCA 2002).

WARNER, POLEN and LEVINE, JJ., concur.


author: PER CURIAM. SHEPHERD, J.,

text:
    Rodney HOLMES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2217.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rodney Holmes, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed.

CORTIÑAS and ROTHENBERG, JJ., concur.

SHEPHERD, J.,

dissenting.

I would dismiss the Notice of Appeal as untimely filed. See Fla. RApp. P. 9.110(b).


author: PER CURIAM. COPE, J.,

text:
    Pedro ALVARADO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1217.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Pedro Alvarado, in proper person.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellee.

      Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Kokal v. State, 901 So.2d 766, 775-76 (Fla.2005).

GERSTEN, J., and SCHWARTZ, Senior Judge, concur.

COPE, J.,

(dissenting).

The only point defendant-appellant Alvarado has raised in his brief on appeal is that he should be given an opportunity to amend his Rule 3.850 motion pursuant to Spera v. State, 971 So.2d 754 (Fla.2007). That point is well taken.

The defendant filed his motion under Florida Rule of Criminal Procedure 3.850 alleging newly discovered evidence. The newly discovered evidence is set forth in the affidavit of Luis Delgado. The affidavit states that Alvarado’s codefendant, Robert Cannon, told Delgado that he planned to falsely accuse this defendant of participating in the charged crime in exchange for a more lenient sentence.

The State filed a trial court response in which it stated that the motion was legally insufficient because it did not attach the affidavit of Luis Delgado. The trial court denied the Rule 3.850 motion and the defendant has appealed.

The defendant maintains the affidavit should have been attached to the motion and has included it in the appendix he has filed here. But the point is that the trial court never saw the affidavit.

The defendant states in his brief that although the trial court denied the 3.850 motion on March 29, 2009, the court did not get around to mailing the order to the defendant until April 15, 2009. The defendant is correct. The certificate of mailing is dated April 15. This means that the defendant’s time for filing a motion for rehearing, and to supply the affidavit, had already expired before the trial court mailed the order. The defendant only had time to file a notice of appeal.

Under Spera, a defendant should have at least one opportunity to amend, which is the only thing he is requesting. In the amended motion he can file the affidavit of Delgado and address the State’s other arguments.

Cannon’s statements to Delgado are, of course, hearsay. In its brief, the State says the Rule 3.850 motion is legally insufficient because it fails to address whether Cannon is available or unavailable to testify. What the State is driving at is that if Cannon is unavailable to testify, then it is possible that Cannon’s statements might qualify for admission under the Evidence Code’s hearsay exception for statements against interest. § 90.804(2)(c), Fla. Stat. The question whether Cannon is available or unavailable is a proper subject for an amended motion.

We should specify that the defendant can amend under Spera.


text:
    Billy Jones COTTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-1742.
    District Court of Appeal of Florida, Third District.
    Oct. 20, 2010.
    Rehearing Denied Nov. 12, 2010.

      Billy Jones Cotton, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN and CORTIÑAS, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See McFadden v. State, 904 So.2d 570 (Fla. 4th DCA 2005).


text:
    HEATHROW MASTER ASSOCIATION, INC., et al., Petitioners, v. Lisle D. ZULIA and James Zulia, et al., Respondents.
    No. 5D10-3282.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2010.
    Richard A. Sherman, Sr. of Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, and J. Gregory Giannuzzi of Rissman, Weisberg, Barrett, Hurt, Donahue & McLane, Tampa, for Petitioners.
    Don McKeever and R. Barry Morgan, Winter Park, for Respondents Lisle Zulia and James Zulia.
    No Appearance for other Respondents.
   PER CURIAM.

Petitioners seek a writ of prohibition, preventing the trial judge from conducting further proceedings in Petitioner’s casé. “A motion to recuse or disqualify a trial judge is legally sufficient when the alleged facts would create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial.” Valdes-Fauli v. Valdes-Fauli, 903 So.2d 214, 216 (Fla. 3d DCA 2005). A review of the verified motion to disqualify demonstrates that it is legally sufficient. The judge’s commentary concerning his personal experiences, when viewed in the context of, and at this stage of the proceeding, is sufficient to create in a reasonably prudent person a well-founded fear that he or she would not receive a fair hearing before this judge. See Miami Dade College v. Turnberry, Inv., Inc., 979 So.2d 1211 (Fla. 3d DCA 2008); Valdes-Fauli, 903 So.2d 214; Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002); Royal Caribbean Cruises, Ltd. v. Doe, 767 So.2d 626 (Fla. 3d DCA 2000); Tindle v. Tindle, 761 So.2d 424 (Fla. 5th DCA 2000). Accordingly, we grant the petition. We are confident that it will be unnecessary to issue a formal writ.

PETITION GRANTED.

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


text:
    Frank CRUM and Frank Winston Crum Insurance, Appellants, v. Bruce RICHMOND, Appellee.
    No. 1D10-0221.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.

      Jacqueline L. Egan of Dixon & Associates, P.A., Tampa, for Appellants.
    Jason Fox of the Law Offices of Carlson and Meissner, Clearwater, for Appellee.
   PER CURIAM.

The Employer/Carrier raises three issues in this workers’ compensation appeal, challenging awards of medical care based on a finding that Claimant’s lumbar condition is compensable, temporary partial disability (TPD) benefits, and permanent total disability (PTD) benefits. The issues raised with respect to the award of TPD benefits and the finding of compensability are without merit. Accordingly, we affirm the award of TPD benefits, the finding of compensability of the lumbar condition, and the award of medical benefits without further comment.

We write only to address the award of PTD benefits. The Judge of Compensation Claims (JCC) awarded PTD benefits beginning the day after Claimant’s entitlement to temporary disability benefits ended. We reverse because Claimant, whom the JCC found had not reached maximum medical improvement (MMI) when entitlement to temporary disability benefits ended, failed to present evidence from which the JCC could conclude that he will be totally disabled when he reaches MMI.

Facts

Claimant was injured in a compensable motor vehicle accident on May 22, 2007, sustaining injuries to his shoulders, a rib, and a thoracic vertebra. The Employer/Carrier provided treatment for these conditions, but denied compensability of a herniated lumbar disc. Claimant had one surgery on the left shoulder and two rota-tor cuff repairs on the right shoulder. Following those surgeries, the physician treating Claimant’s shoulder injuries, Dr. Van Winkle, placed Claimant at MMI for both shoulders on March 17, 2009, assigning a combined twenty-one percent whole body impairment. The right shoulder failed to heal, however, and on April 1, 2009, Dr. Van Winkle recommended that Claimant consult with another doctor, Dr. Frankie, for possible right shoulder replacement surgery. Although Dr. Van Winkle initially testified that she did not rescind the March 17, 2009, MMI date, and that the MMI date would only be revised after shoulder replacement surgery, she later testified that Claimant was not at MMI if he elected to have shoulder replacement surgery. She also testified that Claimant was not currently capable of working if he elected to have the shoulder replacement surgery.

Dr. Frankie recommended shoulder replacement at a surgical consultation on June 5, 2009. He expressed no opinion as to MMI or Claimant’s restrictions while Claimant considered his options, but he testified that if Claimant elected to have surgery it would take approximately one year after surgery for Claimant to reach MMI. Dr. Frankie also testified that, once Claimant reached MMI post-surgery, he would probably have an eighteen percent whole body permanent impairment attributable to the right shoulder. Claimant deferred a decision on the shoulder replacement until November 3, 2009, when he decided to have the surgery.

As to the controverted low back injury, Dr. Hayes, Claimant’s independent medical examiner, opined that the industrial accident caused Claimant’s low back symp-tomatology. He also testified that Claimant was not at MMI for the low back injury and that Claimant had been unable to work since his examination of Claimant on September 4, 2009.

At a final hearing on November 24, 2009, Claimant sought the following benefits, among others: TPD benefits from March 10, 2009; PTD benefits from May 9, 2009; and a determination of compensa-bility of his low back condition. In the final order, the JCC accepted the opinions of Dr. Hayes as to Claimant’s lumbar condition. He then found the Employer/Carrier had erroneously reclassified benefits to impairment benefits effective March 11, 2009, because Claimant remained TPD until May 22, 2009, when 104 weeks of temporary disability benefits were paid. He found further that Claimant was entitled to PTD benefits beginning May 23, 2009.

In awarding PTD benefits, the JCC accepted the testimony of Claimant’s vocational expert that Claimant did not currently retain a capacity for the full range of light or sedentary work. He also found there were no jobs within a fifty-mile radius of Claimant’s residence that Claimant is currently physically capable of engaging in, given his temporary total disability status, pending surgery, and unresolved lumbar pathology. Moreover, the JCC found Claimant has a permanent impairment and will continue to have a permanent impairment for his shoulder injury following shoulder replacement surgery, and that Claimant’s lumbar disc herniation would qualify for a permanent impairment rating. The JCC found, however, that Claimant did not reach overall MMI in March 2009 and had not reached MMI for the low back injury.

PTD before MMI

For accidents occurring on or after January 1, 1994, temporary disability benefits are limited to a period of 104 weeks. Ch. 93-415, § 20, at 120, 128, Laws of Fla. (amending § 440.15(2), (4), Fla. Stat.). We explained in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), that a claimant who has exhausted entitlement to temporary disability benefits, but who has not yet reached MMI, may receive PTD benefits when he or she can prove present total disability and total disability existing after the date of MMI. Id. at 98. The date of MMI is statutorily defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability” § 440.02(10), Fla. Stat. (2006). If a claimant who has not reached MMI presents no evidence that he or she will be totally disabled when MMI is reached, any claim for PTD benefits is premature. Olmo v. Rehabcare Starmed/SRS, 930 So.2d 789, 793 (Fla. 1st DCA 2006); see also Rivendell of Ft. Walton v. Petway, 833 So.2d 292, 296 (Fla. 1st DCA 2002) (“[A]ny determination that Claimant is entitled to PTD benefits now-before the effects of ... treatment and care are known-is premature”).

Here, the JCC considered the combined effects of Claimant’s compensa-ble conditions in determining entitlement to PTD benefits, but he did not address, as required by Oswald, whether total disability will exist after the date of MMI. Nevertheless, this oversight is understandable because Claimant did not present proof that he will be totally disabled after reaching MMI for the right shoulder and low back conditions. Instead, Claimant argued that PTD status should be determined based on his condition as it existed at the expiration of temporary disability benefit eligibility, regardless of whether he has reached MMI. The test, however, for PTD entitlement prior to the date of MMI is not, as the JCC appears to have concluded, whether a claimant is totally disabled upon the expiration of temporary disability benefit eligibility, and will have a permanent impairment after reaching MMI. The test is whether a claimant is totally disabled upon the expiration of temporary benefit eligibility, and will remain totally disabled after the date of MMI as that phrase is statutorily defined. § 440.02(10). “Permanent impairment” and “disability” are not synonymous. Permanent impairment is defined as “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury.” § 440.02(22), Fla. Stat. (2006). Disability is defined as “incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.” § 440.02(13), Fla. Stat. (2006).

Claimant cites Emanuel v. David Piercy Plumbing, 765 So.2d 761 (Fla. 1st DCA 2000), for the proposition that, when a claimant seeks PTD benefits after receiving 104 weeks of temporary disability benefits, PTD entitlement is properly determined without regard to a claimant’s disability status upon achieving MMI. Claimant misreads Emanuel. Emanuel involved a claimant who had a single injury, had reached MMI, and surgery was recommended over one year later. Id. at 762. The claimant’s PTD entitlement in Emanuel was based on the claimant’s post-MMI status. Id. Accordingly, Emanuel does not support Claimant’s proposition. See also Fla. Transp. 1982, Inc. v. Quintana, 1 So.Bd 388, 391 (Fla. 1st DCA 2009) (explaining PTD entitlement in Emanuel was based on claimant’s status post-MMI). Here, because Claimant failed to prove total disability existing after the date of overall MMI, the JCC erred in awarding PTD benefits. As a result, the award of PTD benefits from May 23, 2009, must be reversed as premature.

For these reasons, the award of TPD benefits, the finding of compensability of the low back injury, and the award of medical benefits are AFFIRMED. The award of PTD benefits is REVERSED.

KAHN, LEWIS, and CLARK, JJ., concur.

      . That Claimant reached MMI for the thoracic vertebral injury and rib injury does not appear to have been in dispute, as it was not addressed by the parties or the JCC. Medical testimony and records introduced below indicate the rib injury healed and that, by July 27, 2007, Claimant had reached MMI for the thoracic vertebral injury.

        . Claimant also did not present proof that he was totally disabled based solely on the thoracic vertebral injury and the rib injury, for which he appeared to have reached MMI.

      . We recognize the applicable statutes may create a gap in disability benefits for those injured workers who are totally disabled upon the expiration of temporary disability benefits but fail to prove prospectively that total disability will exist after the date of MMI. The wisdom of this policy is a question for the Legislature.


text:
    Alvin JONES, Appellant, v. CITY OF ST. PETERSBURG, Employer/Self-Insured, Appellee.
    No. 1D10-1043.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.

      Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and David M. Cohen of the Law Offices of David M. Cohen, P.A., Hollywood, for Appellant.
    John C. Wolfe and Jeannine S. Williams, St. Petersburg, for Appellee.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order denying penalties and interest on permanent total disability (PTD) and PTD supplemental benefits paid after the self-insured employer voluntarily accepted him as permanently and totally disabled retroactive to an earlier date. We affirm in part and reverse in part.

BACKGROUND

Claimant was injured in an industrial accident on November 26, 2007, and never returned to work. With no petition for benefits pending, the employer voluntarily accepted him as permanently and totally disabled on July 23, 2009, retroactive to May 6, 2009, and made a lump sum payment of PTD and PTD supplemental benefits accrued since May 6, 2009, taking credit for previously paid permanent impairment benefits. The lump sum did not include penalties or interest.

On September 1, 2009, Claimant filed a petition for benefits requesting, in addition to other benefits, PTD and PTD supplemental benefits from March 29, 2009, plus penalties and interest. On September 15, 2009, the employer agreed to pay PTD and PTD supplemental benefits retroactive to March 29, 2009, but denied the claim for penalties and interest. The adjuster testified at the subsequent hearing that the employer elected to accept Claimant as permanently and totally disabled for administrative reasons retroactive to May 6, 2009, because the employer received a medical opinion from a treating physician that Claimant had an overall impairment rating of 34% on May 13, 2009. She also testified the employer did not receive any new information between May 13, 2009, and July 23, 2009, that led it to accept Claimant as permanently and totally disabled. Finally, the adjuster testified that the employer’s September 15, 2009, decision to pay PTD and PTD supplemental benefits retroactive to March 29, 2009, was based on another treating physician’s MMI date of March 29, 2009, which the employer had received in March 2009.

ANALYSIS

This case is one of statutory interpretation subject to the de novo standard of review. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Although the briefs conflate the issues of whether the JCC erred in denying claims for penalties and interest, a clear analysis requires that the two issues be discussed separately.

Penalties

Section 440.20(6)(a), Florida Statutes (2007), provides in pertinent part:

If any installment of compensation for death or dependency benefits, or compensation for disability benefits payable without an award is not paid within 7 days after it becomes due, as provided in subsection (2), subsection (3), or subsection (4), there shall be added to such unpaid installment a penalty of an amount equal to 20 percent of the unpaid installment, which shall be paid at the same time as, but in addition to, such installment of compensation. This penalty shall not apply for late payments resulting from conditions over which the employer or carrier had no control.

In addressing when benefits become due, section 440.20(2)(a), Florida Statutes (2007), provides:

The carrier must pay the first installment of compensation for total disability or death benefits or deny compensability no later than the 14th calendar day after the employer receives notification of the injury or death, when disability is immediate and continuous for 8 calendar days or more after the injury. If the first 7 days after disability are nonconsecutive or delayed, the first installment of compensation is due on the 6th day after the first 8 calendar days of disability. The carrier shall thereafter pay compensation in biweekly installments or as otherwise provided in s. 440.15, unless the judge of compensation claims determines or the parties agree that an alternate installment schedule is in the best interests of the employee.

Thus, the first question we address is when the PTD and PTD supplemental benefits the employer voluntarily paid retroactive to May 6, 2009, and later retroactive to March 29, 2009, became due. This question must be answered before the JCC can determine whether payment was late and, if so, whether late payment should be excused due to conditions over which the employer or carrier had no control.

Here, the JCC concluded payment was not late because Claimant was not medically restricted from doing sedentary work on May 6 or March 29, 2009, and PTD benefits are not payable if a claimant is engaged in, or physically capable of engaging in, at least sedentary employment. The JCC then concluded the employer did not have any information that Claimant was permanently and totally disabled on the date he reached MMI and that Claimant did not establish the employer failed to pay PTD benefits when they were due. This was error for the reasons that follow.

We reject the circular logic implicit in the employer’s contention that, although it chose to pay PTD and PTD supplemental benefits retroactive to a date it voluntarily selected, the time when those benefits became due did not begin to run from that date because Claimant never proved he was entitled to PTD benefits. Construction of section 440.20(6)(a) in a manner that requires a claimant to prove entitlement to PTD benefits in order to prove penalty entitlement whenever an employer or carrier voluntarily accepts a claimant as permanently and totally disabled retroactive to an earlier date is inconsistent with legislative intent that the workers’ compensation system be self-executing. See § 440.015, Fla. Stat. (2007). It is also unnecessary because the Legislature has provided in section 440.20(6)(a) that a penalty shall not apply for late payments resulting from conditions over which the employer or carrier had no control.

PTD benefits voluntarily paid retroactively by an employer or carrier without an award become due, for purposes of section 440.20(6)(a), in bi-weekly installments pursuant to section 440.20(2)(a), commencing 14 days from the date designated by the employer or carrier as the retroactive start date for those benefits. If a payment is more than seven days late under this construction of section 440.20(6)(a), penalties are due unless the employer or carrier proves late payment resulted from conditions over which the employer or carrier had no control. See Turner v. Miami-Dade County Sch. Bd., 967 So.2d 315 (Fla. 1st DCA 2007) (explaining Employer/Carrier has burden of proving penalties should be excused); Dollar Gen. v. McCoy, 927 So.2d 169 (Fla. 1st DCA 2006) (same); cf. Mitchell v. Sunshine Cos., 850 So.2d 682 (Fla. 1st DCA 2003) (holding voluntary acceptance and payment of PTD benefits retroactive to a particular date relieves claimant of burden of proving date entitlement to PTD benefits began for purpose of determining entitlement to attorney’s fees). When an employer or carrier voluntarily accepts a claimant as permanently and totally disabled and voluntarily pays PTD benefits retroactively, a claimant seeking penalties on those benefits does not bear the burden of proving entitlement to PTD benefits, the date entitlement to PTD benefits began or when the employer or carrier had sufficient information to determine entitlement to PTD benefits.

Our holding is consistent with prior opinions from this court addressing the penalty statute in cases where the employer or carrier has denied a claim for the benefits on which penalties are claimed and the JCC has ordered the employer or carrier to pay those benefits following an evidentiary hearing. See Shaw v. Fla. Steel Corp., 846 So.2d 1254 (Fla. 1st DCA 2003); B & L Servs., Inc. v. Coach USA, 791 So.2d 1138 (Fla. 1st DCA 2001); Serv. Mgmt. Sys. v. Hood, 790 So.2d 578 (Fla. 1st DCA 2001); E. Indus. v. Burnham, 750 So.2d 748 (Fla. 1st DCA 2000). Regardless of whether the benefit on which penalties were claimed was awarded following an evidentiary hearing, as in those cases, or was voluntarily paid by the employer or carrier, as in this case, the pertinent question is whether the employer or carrier carried its burden of proving when it had knowledge of the evidence supporting an obligation to pay, such that late payment resulted from conditions over which the employer or carrier had no control. When benefits are voluntarily paid by the employer or carrier, however, the fact that the employer or carrier acquired such knowledge at some point in time is presumed.

In the instant case, the only evidence on this issue came from the adjuster who testified that the employer elected to accept Claimant as permanently and totally disabled for administrative reasons retroactive to May 6, 2009, because on May 13, 2009, the employer received an opinion from a treating physician that Claimant had an overall impairment rating of 34%. The employer presented no explanation as to why it delayed acceptance of Claimant as permanently and totally disabled until July 23, 2009. We therefore reverse the denial of penalties and remand with instructions that the JCC enter an order awarding penalties on benefits paid more than seven days late for periods of PTD between May 13, 2009, and July 23, 2009.

Interest

Section 440.20(8)(a), Florida Statutes (2007), provides:

In addition to any other penalties provided by this chapter for late payment, if any installment of compensation is not paid when it becomes due, the employer, carrier, or servicing agent shall pay interest thereon at the rate of 12 percent per year from the date the installment becomes due until it is paid, whether such installment is payable without an order or under the terms of an order. The interest payment shall be the greater of the amount of interest due or $5.

Because statutory subsections should be construed in pari materia in determining when compensation becomes due, we apply to interest under section 440.20(8)(a) the same analysis we apply to penalties under section 440.20(6)(a). Yet, because the Legislature has chosen not to provide a mechanism for excusing an employer or carrier from paying interest on late payments of compensation and because interest is not punitive, a JCC may not deny a claim for interest because late payment resulted from conditions over which the employer or carrier had no control. See generally Watkins v. Resources Prop. Mgmt., 596 So.2d 763 (Fla. 1st DCA 1992) (recognizing statutory language as to penalties differs from statutory language as to interest). Consequently, the denial of interest on late payments of PTD and supplemental benefits is reversed and remanded with instructions that interest be awarded on late payments from March 29, 2009.

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

WOLF, ROBERTS, and WETHERELL, JJ., concur.

       Claimant's counsel conceded at oral argument that, as of March 29, 2009, the employer did not have sufficient information to determine Claimant was entitled to PTD benefits. We therefore affirm the denial of penalties on PTD benefits for periods from March 29, 2009, to May 12, 2009.


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    STEEL DYNAMICS INC.-NEW MILLENNIUM and Specialty Risk Services, LLC, Appellants, v. Chase MARKHAM, Appellee.
    No. 1D10-3279.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.

      Aaron S. Bass and Gail Cotton Silver of Silver, Bass & Brams, P.A., West Palm Beach, for Appellants.

      Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the employer/carrier (E/C) argues the Judge of Compensation Claims (JCC) erred by finding Claimant did not intentionally or knowingly make misrepresentations for the purpose of securing workers’ compensation benefits, and consequently by concluding Claimant is not disqualified from receiving all compensation under the provisions of section 440.09(4)(a), Florida Statutes (2007). Because competent substantial evidence (CSE) supports the JCC’s findings of fact regarding Claimant’s lack of wrongful intent, and further, because the E/C fails to raise any legal basis for reversal, we affirm.

Summary Affirmance Procedure

After the E/C filed its initial brief, this court entered an order advising the parties that the order of the JCC was being reviewed under the summary disposition procedure provided for in Florida Rule of Appellate Procedure 9.315(a), relieving Claimant of the obligation to file an answer brief. Because the E/C fails to raise a preliminary basis for reversal it its initial brief, but merely argues the existence of evidence which, if viewed differently by the JCC, might have resulted in a ruling favorable to the E/C, summary affirmance is appropriate in this case. See Fla. Detroit Diesel v. Nathai, 28 So.3d 182 (Fla. 1st DCA 2010) (explaining summary affir-mance procedure); see also Cumberland Farms, Inc. v. Manning, 685 So.2d 64 (Fla. 1st DCA 1996) (explaining this court will never reverse workers’ compensation simply because competent substantial evidence supports losing side’s view of case).

Background

In this case, Claimant, a welder, sustained a compensable accident and injury resulting in back surgery. After his surgery, Claimant returned to work for the Employer in a position that was similar, but lighter in exertion than his pre-injury welding/fabrication job. Notwithstanding the reduced lifting requirements of the modified position, Claimant was still required to stand on a constant basis — an activity which Claimant testified was difficult because of his injury. After working in this modified position for approximately seven months, Claimant submitted a letter of resignation to the Employer indicating that he was grateful for the opportunities provided, but, for economic reasons, he was accepting a new job with another company, and was “looking forward to getting back to working hard 40 hours per week on a regular basis.” The letter made no mention of Claimant’s injuries, his workers’ compensation claim, or any difficulties he was having in performing the modified job.

Immediately after his resignation, Claimant began working as a material handler at Savage Services Corporation (Savage), a company which, for relevant purposes, loads and unloads sulfur and su-perphosphoric acid for shipment by rail and truck. Claimant disclosed his back injury and surgery to Savage, and was required to undergo a physical examination prior to beginning the job. Claimant’s job with Savage primarily required him to drive a train for short distances while seated, and monitor computer screens while seated in an air-conditioned control room. Occasionally, however, Claimant was required to unfasten bolts with a wrench, and Claimant was provided assistance if a particular bolt was too difficult to unbind. Claimant worked for Savage for approximately one year, and during this time, Claimant worked considerable overtime but, contrary to information contained in the letter of resignation, he made less money than he did while working for the Employer.

After a year on his new job, Claimant began experiencing complications due to his compensable injuries, and he was taken out of work by his authorized physician. Claimant'was then terminated by Savage because it could not accommodate his restrictions. Thereafter, Claimant filed a petition for benefits (PFB) against the E/C for temporary indemnity benefits for the period following his last day of work for Savage, and continuing. The E/C immediately denied compensation on the basis that Claimant’s disability was not caused by his compensable injuries — a factual proposition asserted with no apparent factual basis, and one which was rejected by all testifying physicians, including the E/C’s independent medical examiner.

The E/C took Claimant’s deposition, and Claimant testified that, although he was able to perform the modified job with the Employer after his surgery, he could not do so easily, and the standing was “really bad on” his back. Claimant then testified that the reason he was no longer working for the Employer was because he could not do the duties required of him. Claimant also testified, to the extent he was asked, about the actual duties of his job with Savage, and expressed his conclusory opinion that this job was not very physical. The E/C then denied all benefits based on allegations that Claimant made knowing and intentional misrepresentations for the purpose of securing compensation benefits. Specifically, the E/C alleged that Claimant’s letter of resignation, wherein he represented that he was leaving his employment for economic reasons, and his testimonial characterization of the (non) physical nature of the job with Savage, were false statements made for the purpose of securing compensation benefits.

At trial, Claimant testified that he in fact left his employment with the Employer because of the physical difficulties he was having, and not for economic reasons as stated in the letter of resignation. Claimant explained that his intent in writing the letter of resignation in the manner chosen was to “keep the door open” in case he experienced medical recovery sufficient to allow him to return to the job. Claimant also explained his specific job duties at Savage (which testimony was corroborated by a shift manager), and again offered his assessment that in his opinion, the work was not very physical, especially considering his prior work experience. The JCC found Claimant credible, and accordingly found that the E/C failed to establish Claimant made intentional or knowing misrepresentations for the purpose of securing workers’ compensation benefits.

On appeal, the E/C argues because Claimant’s statements regarding the reasons why he left his employment were false, and made during the pendency of his workers’ compensation claim, he should have been disqualified from all benefits available under chapter 440. Similarly, the E/C argues because Claimant’s employment with Savage was more physical than characterized by Claimant, disqualification under section 440.09(4)(a), Florida Statutes (2007), is required as a matter of law.

Resignation Letter

The E/C initially asserts that Claimant’s letter of resignation — tendered to his Employer (not its insurance carrier) on September 23, 2008, some 395 days prior to the commencement of his disability — is false, and was made for the purpose of securing compensation benefits. Nevertheless, the E/C fails to provide any syllogistic or legal reasoning as to how this court can, or should, make a factual finding (which is not the function of this court) that Claimant’s omissions in his letter of resignation (which bear no logical, factual, or legal connection to any benefits awarda-ble under the Workers’ Compensation Law) were made with the specific intent of enhancing his workers’ compensation claim or securing workers’ compensation benefits.

When an objective misrepresentation has been made, the ultimate question a JCC must answer involves intent, that is, whether the claimant subjectively believed or intended the statement, when made, to be false, and whether the claimant subjectively believed the statement would assist him in securing workers’ compensation benefits. See Arreola v. Admin. Concepts, 17 So.Bd 792, 794 (Fla. 1st DCA 2009). A claimant’s state of mind is an issue of fact to be determined by the JCC by evaluating the evidence, including the credibility and demeanor of the witnesses. See id. It is not axiomatic that providing false information following a compensable accident will disqualify a Claimant from receiving benefits. Id.

Here, the JCC believed Claimant’s testimony that he failed to tell the Employer of the true reasons for his resignation to protect his employment opportunities in the future, not to enhance or advance his compensation claim. The E/C fails to appreciate that the applicability of section 440.09(4)(a) (the provision of the Workers’ Compensation Law which allows for the forfeiture of benefits by the JCC) is predicated on a specific intent to deceive for the specific purpose of securing compensation benefits and, if no such intent is present and sufficiently proven to the satisfaction of the JCC, this statutory provision will not result in forfeiture of workers’ compensation benefits — even where the claimant might be subject to criminal prosecution for the same offense. See Matrix Employee Leasing v. Hernandez, 975 So.2d 1217 (Fla. 1st DCA 2008) (explaining even where it is established that claimant made criminal misrepresentation for purpose of securing employment, section 440.09(4)(a) does not allow for disqualification from workers’ compensation benefits, where criminal misrepresentation was not made for specific purpose of securing compensation benefits); see also Quiroz v. Health Cent. Hosp., 929 So.2d 563 (Fla. 1st DCA 2006) (reversing for lack of CSE JCC’s disqualification under section 440.09(4), where claimant’s misrepresentation related to his attempts to retain employment, and bore no relationship to attempt to secure benefits).

Next, in stark contrast to its initial argument, the E/C asserts that the letter of resignation was likely true (Claimant was capable of working hard) and, in accordance with this premise, argues that Claimant’s testimony as to why he left the Employer (because the work was too difficult) must therefore be false, and is thus, a disqualifying statement under section 440.09(4)(a). To the extent this argument warrants analysis, the true reason for Claimant’s resignation from his job with the Employer is an issue of fact, and here the JCC found Claimant resigned because the work was too difficult. Because Claimant’s testimony, which the JCC found credible, supports this finding, there is no basis for this court to engage in fact-finding or retry the case based on a view of the evidence rejected by the JCC. See Manning, 685 So.2d at 64. Accordingly, we affirm the JCC’s rejection of the E/C’s misrepresentation defense based on Claimant’s letter of resignation.

Claimant’s Testimony Regarding the “Physical” Nature of His New Job

The E/C’s argument on this point centers, not upon Claimant’s actual description of his job duties with Savage, but rather, on his conclusory opinion as to how “physical” the job was. At trial, Claimant testified that his employment at Savage was not very physical because in his opinion, and based on his past work experience, the work was not very physical. The JCC accepted this testimony as truthful. Generally, opinion testimony (expressed in good faith) is not actionable as a misrepresentation because it involves opinions, not facts. See generally Doyle v. Dep’t of Bus. & Prof'l Regulation, 713 So.2d 1040 (Fla. 1st DCA 1998) (concluding employee’s denial of using “vulgar” language, where facts established utterance of words reserved for R-rated movies, was assertion of legal conclusion or matter of personal opinion and was, thus, not actionable as false statement under rule prohibiting “deliberately inaccurate, incorrect or misleading” statement). Nevertheless, here, it is unnecessary to delve into a parsing of opinion from fact, because the JCC found Claimant’s statements as to the “physical” nature of his job were not objectively false and were accurate. Because disqualification from benefits under section 440.09(4)(a) is, for relevant purposes here, predicated on the intentional or knowing commission of a criminal offense found in section 440.105, Florida Statutes, and further, because the criminal offenses contained in section 440.105 are predicated on statements which are objectively false, fraudulent, or misleading, see Dieujuste v. J. Dodd Plumbing, Inc., 3 So.3d 1275 (Fla. 1st DCA 2009) (reversing forfeiture of benefits where evidence failed to establish claimant’s statements to doctors were objectively false), there is no reason to further analyze the JCC’s findings regarding Claimant’s intent (which findings are amply supported by the record), because the statement which was alleged by the E/C to be false, was not found by the JCC to be false, fraudulent, or misleading. Accordingly, we affirm the JCC’s rejection of the E/C’s misrepresentation defense as it pertains to Claimant’s statements regarding the physical nature of his job with Savage.

Conclusion

In essence, the E/C has interpreted section 440.09(4)(a) as a means of disqualifying a claimant from benefits whenever a statement is made during the pendency of a workers’ compensation case that is subject to question, cross-examination, or impeachment — it is not. The bedrock of our adversarial system is a party’s right to cross-examine or impeach for the purpose of proving that facts are not exactly as the individual has testified. See, e.g., Bordelon v. State, 908 So.2d 543, 546 (Fla. 1st DCA 2005) (“Eschewing the rack and screw, we count on cross-examination after direct examination or, when redirect examination yields new matter, recross-examination after redirect examination, to ferret out the truth from any and all witnesses, and to gain a fuller understanding of the import of their testimony.”). Because all testimony is, to a certain extent, shaded by the personal experience and subjective perceptions of the providing witness, a revelation that a witnesses’ experience or perception is different than that of the fact-finder or another witness is not, in and of itself, evidence of a willful or knowing intent to deceive; rather, it is commonly a demonstration of the varying degrees to which even well-intentioned individuals may interpret (or misinterpret), and later relay, objective events. It is only where a sufficient showing of a knowing or intentional misrepresentation for the specific purpose of deceiving and securing compensation benefits is demonstrated to the satisfaction of the JCC, that section 440.09(a) operates to divest a claimant of entitlement to compensation benefits.

Based on the foregoing, the order on appeal is AFFIRMED in all respects.

WOLF, DAVIS, and WETHERELL, JJ., concur.

      . We specifically do not reach the issue of whether opinion testimony can ever qualify as á disqualifying misrepresentation under section 440.09(4)(a).


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    Daimon Terrell DAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5101.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.
    Spiro T. Kypreos, Pensacola, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Daimon Terrell Dailey appeals his convictions for robbery with a firearm or other deadly weapon and unlawful possession of a firearm by a minor. He argues his defense counsel was ineffective for failing to object to testimony by law enforcement officers improperly bolstering a prosecution witness and commenting on his truthfulness. As a rule, claims of ineffective assistance of counsel are not cognizable on direct appeal and can only be raised in a postconviction motion under Florida Rule of Criminal Procedure 3.850. See Smith v. State, 998 So.2d 516, 522 (Fla.2008); Wuornos v. State, 676 So.2d 972, 974 (Fla. 1996); Loren v. State, 601 So.2d 271, 272 (Fla. 1st DCA 1992). Rarely, an appellate court will consider such a claim on direct appeal if “the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). We are satisfied upon review of the record before us that this is not the rare case justifying resolution of an ineffective assistance claim on direct appeal. Rather, Appellant should seek relief under Rule 3.850.

AFFIRMED.

HAWKES, C.J., PADOVANO, and MARSTILLER, JJ., concur.


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    Marie D. PIERRE, Appellant, v. ROYAL CARE/USIS, Appellees.
    No. 1D10-1744.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.

      Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and James E. Hack, St. Petersburg, for Appellant.
    Rayford H. Taylor of Stiles, Taylor & Grace, P.A., Atlanta, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying her request for an attorney’s fee for obtaining the benefit of a psychiatric evaluation, and basing the fee award on only half the undisputed attorney time (14.6 of the 29.2 undisputed hours) on the reasoning that the total time was divided equally between work on the psychiatric evaluation and work on another benefit. Because Claimant meets the requirements of section 440.34(3), Florida Statutes (2007), we reverse the order, and remand.

A claimant is entitled to recover a reasonable attorney’s fee if she requests a benefit via a petition for benefits (PFB), the Employer/Carrier (E/C) files a response thereto, and the claimant has employed an attorney in the successful prosecution of the PFB; the fee does not attach until thirty days after the E/C receives the PFB. See § 440.34(3), Fla. Stat. (2007). Here, Claimant filed a PFB in July 2009 seeking a psychiatric evaluation. The E/C declined to provide that benefit, on the grounds that there was no medical necessity for a psychiatrist and no referral for such by an authorized treating provider.

In the order on the merits, the JCC awarded a psychiatric evaluation, but reserved jurisdiction on entitlement to attorney’s fees for the psychiatric evaluation. The JCC found that Claimant testified at the December 2009 merits hearing she refused to go to a psychiatrist when two doctors “first recommended it” but changed her mind when told it would improve her pain to do so, and the JCC concluded that, “[u]ntil [Claimant changed her mind, there was no reason for [the] E/C to schedule an evaluation with a psychiatrist.” After a fee hearing, the JCC denied a fee for the psychiatric evaluation, reasoning Claimant provided no evidence that her change of mind had been conveyed to the E/C before the merits hearing.

The denial of the fee was error because it was based on the assertion that Claimant would have refused to go to the evaluation. The E/C had declined to provide the benefit for other reasons, however, which did not implicate Claimant’s state of mind. Claimant had to employ an attorney to obtain the benefit, and was awarded the benefit more than thirty days after the E/C received the PFB. Consequently, she is entitled to attorney’s fees under section 440.34(3), Florida Statutes, for the full 29.2 hours submitted, at the hourly fee found reasonable by the JCC and undisputed by the E/C.

REVERSED and REMANDED for entry of an order consistent with this opinion.

HAWKES, C.J., ROBERTS and ROWE, JJ., concur.


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    Kimberly JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3936.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2010.
    Nancy Daniels, Public Defender, and Steven A. Been, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of modification of probation rendered on June 21, 2010, in Leon County Circuit Court case number 2008-CF-2019A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the lower tribunal shall appoint counsel to represent her on appeal.

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


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    Wilbert Powell SCARVER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-41.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2010.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Hale v. State, 891 So.2d 517, 519-20 (Fla.2004).

BENTON, THOMAS, and ROWE, JJ., concur.


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    B.D., Mother of K.D., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D10-1536.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2010.
    Nickole E. Frederick, Orlando, for Appellant.
    Kelly A. Swartz, of Children’s Legal Services, Rockledge, for Appellee.
    Laurie Beechner of Beechner & Eng-lert, P.L., Orlando, for Guardian ad Litem Program.
   PER CURIAM.

We reverse the final judgment terminating appellant’s parental rights, rendered after the entry of a consent by default. Constructive consent should be the disfavored result in a termination of parental rights proceeding. A.H. v. Dep’t of Children and Families, 22 So.3d 801 (Fla. 5th DCA 2009). The trial court should have either granted a short continuance or permitted appellant to appear by telephone where the record reflects that appellant was making a reasonable effort to personally appear at the scheduled adjudicatory hearing. D.M. v. Dep’t of Children and Families, 921 So.2d 737 (Fla. 5th DCA 2006); see also B.H. v. Dep’t of Children and Families, 882 So.2d 1099, 1100-01 (Fla. 4th DCA 2004) (“Courts have made a distinction between parents who fail to appear at a hearing without a reasonable explanation versus those who have made some reasonable effort to be present.”)

REVERSED and REMANDED for New Adjudicatory Hearing.

ORFINGER, LAWSON and EVANDER, JJ., concur.


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    Roy Eugene WHITTAKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2715.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2010.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Roy Eugene Whittaker appeals the revocation of his probation in five separate circuit court cases and his resulting prison sentences. The State proved new law violations in five new cases by a preponderance of the evidence, and because those new law violations were sufficient to justify the revocation of probation, we affirm the order revoking probation. See Gaddy v. State, 23 So.3d 1258, 1259 (Fla. 2d DCA 2009); Green v. State, 19 So.3d 449, 449-50 (Fla. 2d DCA 2009). However, we remand with directions for the trial court to strike the findings of new law violations in two new cases that we conclude were not supported by the State’s evidence.

At the violation hearing, the State attempted to prove the new law offense of fraudulent use of a credit card by Whittaker at a local Wal-Mart in circuit court case number 08-1337. The State presented the testimony of Vincent Eurice and Carla Frase to prove that Eurice’s home was burglarized, that Frase’s credit cards and other items were stolen, and that some of Frase’s items were found in Whittaker’s residence. However, the only evidence that Whittaker fraudulently used Frase’s credit card at Wal-Mart was hearsay or improperly admitted because it was not authenticated.

Frase’s boyfriend, Eurice, offered hearsay testimony that after calling their credit card companies, Eurice and Frase learned that one of Frase’s credit cards had been used at Wal-Mart. Frase also offered hearsay testimony that her credit card was used at Wal-Mart. Detective Atkinson offered hearsay testimony that the credit card company told her the date and time of the transaction at Wal-Mart and that the loss prevention officer at Wal-Mart told her the credit card was used during a particular transaction and the photographs from a Wal-Mart security camera, which were introduced into evidence, depicted that transaction.

The photographs of the Wal-Mart transaction were not properly authenticated because no witness with the requisite knowledge testified that the photographs were a fair and accurate representation of what occurred at the Wal-Mart. See Bryant v. State, 810 So.2d 532, 536 (Fla. 1st DCA 2002); Charles W. Ehrhardt, Florida Evidence § 401.2, at 137-38 (2009 ed.). In addition, Detective Atkinson’s testimony that the photographs depicted the use of Frase’s card was hearsay because it was based on information Atkinson had received from a Wal-Mart employee who did not testify at the violation hearing. See Gaddy, 23 So.3d at 1259 (“A trial court may consider hearsay testimony at a violation of probation hearing. But, hearsay may not be the sole basis supporting a ground for revocation.” (citation omitted)). Accordingly, the trial court erred in relying on this evidence in finding the new law violation of fraudulent use of a credit card in case 08-1337.

The trial court also erred in finding that the State proved the new law offense of attempted burglary of an unoccupied conveyance in circuit court case number OS-1461. The State did not introduce any evidence at the violation hearing relating to this new offense, and in fact, the prosecutor stated that he did not “think we ever talked about this case.”

Accordingly, we affirm the revocation of probation but remand for the trial court to strike the findings of these two new law violations from the order revoking probation. We affirm Whittaker’s sentences without comment.

Affirmed; remanded with directions.

WALLACE and BLACK, JJ„ Concur.