author: EVANDER, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Steven H. BRONSON and State of Florida, Respondents.
    No. 5D11-3508.
    District Court of Appeal of Florida, Fifth District.
    Feb. 10, 2012.
    T. Shane DeBoard, Regional Counsel, DCF, Orlando, for Petitioner.
    Robert Wesley, Public Defender, and Laura J. Kolssner, Assistant Public Defender, Kissimmee, for Respondent Steven H. Bronson.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Respondent State of Florida.
   EVANDER, J.

The Department of Children and Families (DCF) seeks certiorari review of an order involuntarily committing Steven Bronson, a criminal defendant, to the custody of DCF pursuant to section 394.467, Florida Statutes (2011). Because the trial court failed to comply with the procedural requirements set forth in that statute, we grant the petition.

On December 29, 2010, Bronson was arrested for, and charged with, the 1979 murder of Norma Page. After being appointed to represent Bronson, the Public Defender’s Office retained Drs. Frumkin and Danziger to evaluate Bronson’s psychiatric functioning for the purpose of determining whether he was competent to proceed in his criminal case. In his report, Dr. Frumkin concluded that “[i]t is questionable if Mr. Bronson meets the criteria for competency to proceed with adjudication.” Dr. Danziger was more definitive, opining that “this defendant is not competent to proceed.”

When the issue of Bronson’s competency was raised with the trial court, it appointed Drs. Tressler and Prichard to perform competency evaluations of the defendant. After performing his evaluation, Dr. Tres-sler found Bronson to be “a demented 63 year-old individual” with “severe brain damage” as a result of a series of strokes suffered in 2003. Dr. Tressler believed that Bronson was incompetent to proceed, and that his competency could not be restored. Dr. Prichard’s opinion differed to some degree. He found that Bronson had a cognitive disorder related to his prior strokes and that he was “marginally incompetent to proceed.” Dr. Prichard also opined that the prospect for competency restoration was “guarded.” However, Dr. Prichard agreed that neurological issues associated with Bronson’s 2003 strokes were “likely permanent and irreversible.”

After considering the reports of the four above-referenced doctors, the trial court entered an order on June 24, 2011, adjudging Bronson incompetent to proceed and committing him to DCF’s custody. In its order, the trial court found that Bronson “met the criteria for commitment to a treatment facility of the Department of Children and Families as provided in F.S. 916.13(1).” That subsection provides:

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a) The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.

(Emphasis added).

Shortly thereafter, DCF filed a motion to intervene and a motion to vacate the trial court’s June 24, 2011 order. In its motion, DCF argued that the involuntary commitment of Bronson to DCF’s custody was improper for two reasons. First, Bronson’s incompetence to proceed was not restorable in the foreseeable future. See, e.g., Dep’t of Children & Families v. Wehrwein, 942 So.2d 947 (Fla. 5th DCA 2006) (trial court’s order committing defendant, who had previously been adjudicated incompetent to proceed to trial, to DCF’s custody violated statute governing involuntary commitment of a defendant who had been adjudicated incompetent, where overwhelming evidence was that mental illness causing defendant’s incompetency would not respond to treatment and that it was highly unlikely defendant would ever respond to treatment). Second, the reports of the expert evaluators demonstrated that Bronson’s incompetence to proceed was the result of organic brain damage, not mental illness, and by its express language, section 916.13(1) was only applicable to defendants suffering from mental illness.

On July 13, 2011, the trial court entered an order granting DCF’s motion to intervene and vacating its June 24, 2011 order.

On August 2, 2011, the trial court entered an order for involuntary examination pursuant to section 394.463. In compliance with the court order, Dr. Speiser of Park Place Behavioral Health Care conducted a psychiatric evaluation of Bronson. Dr. Speiser then prepared a report in which he concluded that Bronson did not meet the criteria for inpatient psychiatric hospitalization and instead recommended that Bronson “continue in treatment in the Department of Corrections with eventual nursing home placement due to his medical problems.”

On September 26, 2011, Bronson moved to dismiss his criminal charge (without prejudice) due to his incompetence. The State filed a written response arguing that dismissal would be improper and suggested that Bronson met the criteria for civil commitment under section 394.467(1).

On October 6, 2011, DCF filed a written response to the State’s request to civilly commit Bronson in which it argued that Bronson did not meet the criteria for involuntary placement under section 394.467(1) because: (1) he was not “mentally ill”; and (2) there were less restrictive treatment alternatives to provide for his care, i.e., proper placement in a nursing home. More importantly, DCF observed the lack of compliance with the procedural requirements set forth in section 394.467.

Notwithstanding DCF’s objection, on October 10, 2011, the trial court entered an order involuntarily committing Bronson to DCF’s custody.

Certiorari jurisdiction lies to review DCF’s claim that the trial court acted in excess of its jurisdiction by ordering DCF to undertake responsibility beyond what is required by statute. See Dep’t of Children & Family Servs. v. Amaya, 10 So.3d 152, 154 (Fla. 4th DCA 2009); Wehrwein. We conclude that the trial court’s order constituted a departure from the essential requirements of law. As DCF contends, and as the State and Bronson concede, the trial court did not follow the multi-step process established in section 394.467. The procedural deficiencies included, but were not limited to:

1. The lack of a petition for involuntary inpatient placement;
2. The lack of any showing that a psychiatrist had examined Bronson within the preceding 72 hours and found that the criteria for involuntary inpatient placement had been met; and
3. The lack of an evidentiary hearing.

Furthermore, given the lack of an eviden-tiary hearing, it is clear that the trial court’s October 10, 2011 order involuntarily committing Bronson to DCF’s custody was not supported by clear and convincing evidence.

PETITION FOR WRIT OF CERTIO-RARI GRANTED; ORDER QUASHED.

LAWSON and JACOBUS, JJ., concur.

      . Section 394.463 authorizes a trial court to enter an ex parte order for the involuntary examination of an individual where there is reason to believe, based on sworn testimony, that the individual has a mental illness and because of his or her mental illness:
      (a)l. The person has refused voluntary examination after conscientious explanation and disclosure of the purpose of the examination; or
      2. The person is unable to determine for himself or herself whether examination is necessary; and
      (b) 1. Without care or treatment, the person is likely to suffer from neglect or refuse to care for himself or herself; such neglect or refusal poses a real and present threat of substantial harm to his or her well-being; and it is not apparent that such harm may be avoided through the help of willing family members or friends or the provision of other services; or
      2. There is a substantial likelihood that without care or treatment the person will cause serious bodily harm to himself or herself or others in the near future, as evidenced by recent behavior.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Lewis GATLIN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D11-5722.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.
    Julianne M. Holt, Public Defender, and. Michael Peacock, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Respondent.
   PER CURIAM.

Lewis Gatlin filed a petition for writ of habeas corpus challenging the trial court’s order finding him incompetent to proceed in a criminal case and directing that he be involuntarily committed to the Department of Children and Family Services (DCF). By order, we treated the petition as a petition for writ of certiorari and granted relief. We write to explain our decision.

Gatlin was charged with robbery. The trial court entered an order for competency evaluation and psychiatric evaluation return, appointing two mental health experts to determine whether Gatlin was competent to proceed to trial. At the competency hearing, the parties stipulated that the reports of the experts be considered as evidence, and neither party presented any live testimony. The trial court did not call any witnesses either. In a competency evaluation report, Fred Farza-negan, Ph.D., recommended that Gatlin be found incompetent to proceed to trial and that he be sent to a community-based restoration program for treatment. Dr. Far-zanegan opined that Gatlin could be restored to competency within six months. Debra Goldsmith, Ph.D., opined that Gatlin was incompetent to stand trial and that he would benefit from a refresher course at a local mental health facility. Dr. Goldsmith diagnosed Gatlin as having a major depressive disorder with psychotic features.

After the competency hearing, the trial court entered an amended order finding Gatlin incompetent and committing him to DCF. In its findings of fact, the trial court correctly stated that the experts had determined that Gatlin should not be involuntarily committed to DCF for treatment. In its conclusions of law, the trial court found that Gatlin was mentally ill and that he was incompetent to proceed. However, the trial court also found that “[a]ll available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of [Gatlin’s] condition [had] been judged to be inappropriate.” See § 916.13(l)(b), Fla. Stat. (2011).

If there is an issue regarding a defendant’s competency, at least two mental health experts must examine the defendant to determine whether he or she is competent to proceed to trial. § 916.12(2). In accordance with section 916.13(1):

Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a) The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(c) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.

(Emphasis added.)

The trial court’s finding that less restrictive alternatives to involuntary commitment, including treatment in community residential facilities or community inpatient or outpatient settings, were judged to be inappropriate is not supported by clear and convincing evidence. In fact, both mental health experts recommended that community-based facilities be used to treat Gatlin’s condition. Neither expert determined that involuntary commitment to DCF was necessary. Accordingly, in our earlier order granting relief, we left undisturbed the trial court’s finding that Gatlin is incompetent to proceed but quashed that portion of the order involuntarily committing him to DCF. Because Gatlin is incompetent to proceed but his involuntary commitment to DCF was not authorized under section 916.13(1), we directed the trial court to hold a hearing to determine the appropriate mental health treatment for Gatlin in accordance with Florida Rule of Criminal Procedure 3.212(c)(1), (2), and (d).

Petition granted.

WHATLEY, KELLY, and WALLACE, JJ., Concur.

      . See Oren v. Judd, 940 So.2d 1271, 1272 n. 1 (Fla. 2d DCA 2006).

      . The trial court made various findings in accordance with section 916.13(l)(a) that are not supported by clear and convincing evidence. These findings, however, do not affect our resolution of this case.


author: ALTENBERND, Judge.

text:
    Jean-Sébastien SAURIOL, Appellant, v. Jennifer SAURIOL, Appellee.
    No. 2D09-4346.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.

      Jean-Sébastien Sauriol, pro se.
    John Torraco of Law Office of John Torraco, P.L., Grove City, for Appellee.
   ALTENBERND, Judge.

Jean-Sébastien Sauriol appeals an order holding him in contempt for sending an email to his wife in violation of a domestic violence injunction. We reverse.

Our record in this appeal is limited to the proceedings on the petition for protection against domestic violence. Apparently, there is or has been a related dissolution proceeding and a criminal proceeding. The proceeding at issue in this case commenced in August 2008 when Jennifer Sau-riol filed a petition for injunction for protection against domestic violence, alleging that her husband had violently attacked her by hitting her across the face. She alleged that he had also engaged in earlier acts of physical violence.

The trial court entered a final judgment of injunction in early September 2008. The judgment prohibited violence and also contained a “no contact” provision, which stated that Mr. Sauriol should have no contact with his wife, including contact by email. This provision, however, was apparently limited so that Mr. Sauriol could discuss business matters with Ms. Sauriol. We say “apparently” because the injunction states that the express “terms and conditions cited by counsel of record” would be “drawn by counsel and appended hereto.” Unfortunately, nothing is appended to the judgment in the record.

In April 2009, Ms. Sauriol filed a standard form “affidavit and motion for order to show cause.” This pro se motion complained that Mr. Sauriol had sent his wife five emails between September 19, 2008, and February 11, 2009. The emails are attached to the motion. They are all short messages that are not threatening or even impolite. They address some business issues and Mr. Sauriol’s need to obtain some of his personal property. Mr. Sauriol is a Canadian citizen, and apparently he sent some of these emails from Canada.

Ms. Sauriol’s standard form motion requests that the trial court hold Mr. Sauriol in indirect criminal contempt; it does not request any relief under civil contempt. The trial court issued an order to show cause why Mr. Sauriol should not be held in civil contempt. Thereafter the procedures for indirect criminal contempt in Florida Rule of Criminal Procedure 3.840 were not further invoked.

After some delay, the trial court conducted a hearing on the contempt matter in August 2009. Mr. Sauriol appeared by telephone from Canada. There is no transcript of this hearing, but the record does contain detailed notes that are described as “court minutes,” which appear to have been prepared by a court clerk. The notes indicate that a judgment of dissolution had been entered and that Ms. Sauriol is now known as Ms. Stringer. It is difficult to know the extent of the testimony from these notes, but it is clear that Mr. Sauriol challenged the trial court’s patience. At the end of the hearing, the trial court informed Mr. Sauriol that he could not appear by telephone at any future hearings.

The trial court ruled that four of the emails did not violate the injunction because they concerned business matters between the Sauriols. However, the court determined that the email sent by Mr. Sauriol in September 2008 violated the injunction because it discussed other issues beyond the former couple’s business matters. Without a transcript, we cannot evaluate this determination on appeal.

Despite the fact that this brief email does not appear to be threatening or impolite in any way, the court minutes reflect that the trial court initially held Mr. Sau-riol in indirect criminal contempt and sentenced him to three weeks in jail in the event that he ever returned to Florida. The court minutes reflect that the trial court rescinded this order ten minutes later and instead held Mr. Sauriol in civil contempt.

The rendered order on the motion for contempt confirms that the trial court held Mr. Sauriol in civil contempt for the single offending email that he sent eleven months earlier. The order states:

5. The court rules respondent is hereby sentenced to twenty one (21) days in the Charlotte County jail with a purge.
6. Respondent may purge the sentence if he: 1. Pays a five hundred dollar ($500) fine, and 2. Attends and completes a certified batterer’s intervention program. Respondent may attend a program in the jurisdiction of his choosing, but said program must be comparable to the batterer’s intervention program administered in the state of Florida under Chapter 65H-2, Florida Administrative Code, Section 741.32, Florida Statutes, Section 741.325, Florida Statutes, Section 741.327, Florida Statutes. Respondent shall provide proof of attendance to the Charlotte County Clerk’s office and to the law office of Attorney Jeffrey A. Rapkin, Esq....
7. Respondent has one year from the date of signature of this order to pay the $500 fine and attend the aforementioned batterer’s program. Should he fail to pay the $500 fine and successfully attend and complete the batterer’s program, respondent’s twenty one (21) day sentence shall be served.

For purposes of this appeal, we assume that Mr. Sauriol has the ability to pay $500 and that Canada has a certified batterer’s program that is comparable to Florida’s. In our limited record, however, nothing suggests that the trial court took evidence or otherwise considered these issues. We reverse this order because it is not a proper order of civil contempt; rather, it is little more than a repackaged effort at the unauthorized indirect criminal contempt order that had been entered a few minutes earlier.

The law of contempt is generally divided into two categories: criminal or civil contempt. See Parisi v. Broward Cnty., 769 So.2d 359, 363 (Fla.2000). Civil contempt sanctions are further categorized as either compensatory or coercive. Id.; see also H.K. Dev., LLC v. Greer, 32 So.3d 178, 184 (Fla. 1st DCA 2010).

As explained above, this case does not involve criminal contempt; it was not prosecuted under rule 3.840. The distinction between civil and criminal contempt is not as clear-cut as might be desired, but the court in Pansi explained:

The distinction between criminal and civil contempt often turns on the “character and purpose” of the sanctions involved. [Int’l Union, United Mine Workers v. Bagwell, 512 U.S. 821, 827, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994) (quoting Gompers v. Buck’s Stove & Range Co., 221 U.S. 418, 441, 31 S.Ct. 492, 55 L.Ed. 797 (1911)).] We have previously explained that “[t]he purpose of criminal contempt ... is to punish. Criminal contempt proceedings are utilized to vindicate the authority of the court or to punish for an intentional violation of an order of the court.” Bowen v. Bowen, 471 So.2d 1274, 1277 (Fla.1985). On the other hand, a contempt sanction is considered civil if it “is-remedial, and for the benefit of the complainant.” Bagwell, 512 U.S. at 827-28, 114 S.Ct. 2552 ... (quoting Gompers, 221 U.S. at 441, 31 S.Ct. 492).

Parisi, 769 So.2d at 364 (emphasis in original).

In this case, it is obvious that the trial court was trying to punish Mr. Sauriol. If this case involved civil contempt, the sanction would be designed to coerce Mr. Sau-riol to obey the order, that is, to stop sending emails with nonbusiness content similar to the one that he sent in violation of the injunction during the first year that the injunction was in effect. But Mr. Sau-riol has not engaged in ongoing behavior that warrants a civil jail sanction subject to purge.

Courts may use fines in civil contempt either to compensate the losses of the injured party or to coerce compliance. Johnson v. Bednar, 573 So.2d 822, 824 (Fla.1991) (receded from, in part, on other grounds as recognized in Parisi, 769 So.2d at 365 n. 6). The $500 fine in this case is not designed to compensate Mr. Sauriol’s former wife for any loss. Moreover, it is not expressly designed to coerce compliance with the earlier injunction, “taking into consideration the character and magnitude of the harm threatened by continued contumacy, and the probable effectiveness of a particular sanction in achieving the result desired.” Id. at 824. Shortly after the entry of the domestic violence injunction, Mr. Sauriol sent a single benign email that technically violated the injunction because it contained references that went beyond the business matters that the parties agreed orally were proper topics for communication. Nothing in this record supports the proposition that Mr. Sauriol must receive a significant jail term, a sizable fine, or training about spousal battery in order to stop sending unauthorized emails comparable to the one at issue here. We do not rule out that the trial court would have been authorized to order Mr. Sauriol to pay a small fine for this violation and to issue a warning that additional fines would be imposed for any future violation. But that is not the nature or the purpose of this unusual jail term, which is coupled with an equally unusual purge provision.

Reversed and remanded.

VILLANTI and WALLACE, JJ„ Concur.


text:
    Amadou WANE, Appellant, v. FLORIDA DEFAULT LAW GROUP, P.L., and Stanley Kurek, Appellees.
    No. 2D11-1454.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.
    Amadou Wane, pro se.
    Suzanne Barto Hill and Kevin R. Gowen, Jr., of Rumberger, Kirk & Caldwell, Orlando, for Appellees.
   PER CURIAM.

Affirmed, except, as conceded by appel-lees, the dismissal with prejudice of the third-party claims in the mortgage foreclosure action does not preclude appellant from asserting those claims in a separate action.

ALTENBERND, VILLANTI, and LaROSE, JJ., Concur. ,


author: KHOUZAM, Judge.

text:
    Lisa A. THOMPSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3422.
    District Court of Appeal of Florida, Second District.
    Feb. 10, 2012.
    Lisa A. Thompson, pro se.
   KHOUZAM, Judge.

Lisa A. Thompson appeals the summary denial of her motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Thompson pleaded guilty to conspiracy to traffic in illegal drugs (count 1), two counts of obtaining a controlled substance by fraud (counts 8 and 26), and Medicaid fraud (count 32). She was sentenced to concurrent sentences of six years’ probation (count 1) and five years’ probation (counts 8, 26, and 32) on June 25, 2004. After violating her probation, Thompson was sentenced to concurrent sentences of eighty-seven months’ incarceration on all counts. Thompson asserts that her sentences on counts 8, 26, and 32 are illegal because they exceed the five-year statutory maximum for third-degree felonies under section 775.082(3)(d), Florida Statutes (2001), and that it was improper for the trial court to round up the lowest permissible sentence reflected on her scoresheet, which was 86.1 months.

When the lowest permissible sentence under the Criminal Punishment Code exceeds the statutory maximum sentence provided for by section 775.082, the sentence required by the Code must be imposed. § 921.0024(2), Fla. Stat. (2001). “The sentence required by the Code is the minimum permissible sentence and no more.” Horne v. State, 6 So.3d 99, 101 (Fla. 2d DCA 2009) (emphasis omitted) (citing § 921.0024(2), Fla. Stat. (2005)); see also Butler v. State, 838 So.2d 554, 556 (Fla.2003) (holding that “when section 921.0024(2) applies so that the statutory maximum sentence as provided in section 775.082 ... is exceeded by the lowest permissible sentence under the [CJode, the lowest permissible sentence under the [C]ode becomes the maximum sentence which the trial judge can impose”). Thompson is therefore entitled to a reduction of her sentence on counts 8, 26, and 32 to reflect the lowest permissible sentence on her scoresheet, 86.1 months. We reverse and remand for the trial court to resentence Thompson accordingly.

Reversed and remanded.

CRENSHAW and BLACK, JJ., Concur.


text:
    Lajeffric Asanti OWENS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-894.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, for Appellee.
   PER CURIAM.

AFFIRMED. See Kirkland v. State, 67 So.3d 1147 (Fla. 1st DCA 2011).

PADOVANO, LEWIS, and WETHERELL, JJ., concur.


author: BENTON, C.J.

text:
    Willie Lee MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0689.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Nancy A. Daniels, Public Defender, Archie Gardner, Jr., Assistant Public Defender, and Steven Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Willie Lee Miller appeals the order revoking his probation and the sentence of five years’ imprisonment thereupon pronounced. The appeal he requested at the time was not perfected in the present case, but a belated appeal was eventually allowed. Because by now he has already served his sentence, however, we dismiss the appeal as moot.

Mr. Miller faced charges in two separate cases. In May of 2002, he was charged in circuit court case No. 02-306CFA with one count of felony fleeing or attempting to elude an officer. He entered a plea of no contest in No. 02-B06CFA, was adjudicated guilty, and was sentenced to eighteen months’ imprisonment, followed by two years’ probation. As part of a plea agreement, he also entered a plea in circuit court case No. 02-597CFA in which he received an identical, concurrent sentence. In August of 2005, after his initial term in prison had ended and his probationary term had begun, the trial court revoked his probation in both cases, and imposed new, concurrent terms of three years’ probation in both cases.

In June of 2007, another affidavit of violation of probation alleged that Mr. Miller committed a new law violation: sale, manufacture, or delivery of crack cocaine. In August of 2007, following the ensuing, consolidated violation of probation hearing in Nos. 02-306CFA and 02-597CFA, the trial court found that Mr. Miller committed a willful and substantial violation of terms of probation applicable in each case, revoked his probation in both cases, and sentenced him to two concurrent five-year terms of imprisonment, with credit for 254 days’ time served. As a result, Mr. Miller returned to the custody of the Department of Corrections on August 24, 2007.

He sought to appeal the order revoking his probation and resentencing him in both cases, but the assistant public defender representing him listed a single case number on the notice of appeal: 02-597CFA. Addressing only the case before them, another panel of this court reversed and remanded with directions to reinstate probation with appropriate credit, because the trial court had relied exclusively on hearsay in revoking Mr. Miller’s probation. Miller v. State, 10 So.3d 693 (Fla. 1st DCA 2009). On remand in June of 2009, the trial court reinstated probation in No. 02-597CFA.

On July 2, 2009, Mr. Miller filed a motion “Requesting Clarification of Concurrent Sentences” pro se. On July 8, 2009, the trial court entered an order on the motion, explaining that, in compliance with this court’s opinion in Miller, the trial court had reinstated Mr. Miller to probation in No. 02-597CFA on June 15, 2009, but not to probation in No. 02-306CFA. The trial court’s order further explained that, because no appeal was taken in No. 02-306CFA, Mr. Miller remained in DOC custody. Further, the trial court’s order opined that he was probably entitled to be reinstated to probation in both cases, and that nothing foreclosed a belated appeal.

There is no indication that the public defender’s office received a copy of the trial court’s order. Eventually, however, a petition seeking a belated appeal was filed and, on September 29, 2009, our mandate issued, allowing the present, belated appeal from the revocation order and sentence in No. 02-306CFA. In December of 2009, the trial court entered an order provisionally appointing the Public Defender for the Second Judicial Circuit Mr. Miller’s counsel on the belated appeal. No record on appeal was filed until January of 2011. But Mr. Miller had served his sentence by then.

He had been released from the custody of the Department of Corrections upon expiration of his sentence on June 11, 2010, Briefing went forward nevertheless. In March of 2011, we granted an assistant public defender’s request for a thirty-day extension for filing Mr. Miller’s initial brief, and granted another, similarly unopposed request for extension in April. When at last filed on May 18, 2011, Mr. Miller’s initial brief was stricken sua sponte as technically deficient. Counsel filed an amended initial brief in June of 2011, correcting the deficiencies, after the state first requested its own extension of time — to file an answer brief — a request the court granted in the absence of an objection. The state filed its answer brief at the end of August 2011. No reply brief was filed.

On the merits, the state concedes that the revocation of probation in No. 02-806CFA should be reversed, because, as it conceded and another panel of this court concluded in the first Miller case, the revocation was based on facts supported by nothing more than hearsay. Since Mr. Miller has already served his sentence, however, the question is moot, and we have no choice but to dismiss the appeal. See Vazquez v. State, 930 So.2d 860, 861 (Fla. 2d DCA 2006) (dismissing as moot appeal of amended sentence and order modifying probation where appellant had served sentence in its entirety and was no longer on probation).

Dismissed.

ROWE and RAY, JJ., concur.

      . But see Abbey v. State, 39 So.3d 546, 548 n. 1 (Fla. 2d DCA 2010) ("a defendant cannot serve a prison term and a supervisory term of probation or community control at the same time”); Jones v. State, 964 So.2d 167, 171 (Fla. 5th DCA 2007) ("To hold otherwise would be inconsistent with the rehabilitative concept of probation which presupposes that the probationer is not in prison confinement.”).

      . The order read, in part:
      The Defendant was received by DOC on 08/24/07, continues to serve his 60-month sentence and has a pending release date of 01/30/10 (see attached judgment and sentence and DOC Inmate Population Information Detail).
      It appears defendant is entitled to probation reinstatement in both cases. Nothing herein forecloses a belated appeal to the First District Court of Appeal. However, this Court has no jurisdiction without direction by the First District Court of Appeal.

      . The supplemental record was not filed until the beginning of February of 2011.

      . Neither the requests for extensions of time filed by Mr. Miller's counsel nor by the state addressed the length of Mr. Miller's sentence while he was serving it or the fact that Mr. Miller had completed his sentence, once he had.


text:
    ST. JOSEPH’S HOSPITAL, INC., d/b/a, St. Joseph’s Hospital, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 1D11-6715.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Karen A. Putnal and Robert A. Weiss of Parker, Hudson, Rainer & Dobbs, LLP, Tallahassee, for Petitioner.

      Pamela Jo Bondi, Attorney General, and Charlyne M. “Khai” Patterson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as moot.

LEWIS, ROBERTS, and RAY, JJ., concur.


author: PER CURIAM. BENTON, C.J.

text:
    Kenneth E. WOOD, Appellant, v. STATE OF FLORIDA COMMISSION ON ETHICS, Appellee.
    No. 1D11-6383.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Osnat K. Rind and Holly E. Van Hort-sen of Phillips, Richard & Rind, P.A., Miami, for Appellant.
    C. Christopher Anderson, III, General Counsel, and Julia Cobb Costas, Assistant General Counsel, Florida Commission on Ethics, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Florida Chapter of the Sierra Club v. Suwannee American Cement Co., Inc., 802 So.2d 520, 522 (Fla. 1st DCA 2001).

PADOVANO and SWANSON, JJ., concur.

BENTON, C.J., concurs with separate opinion.

BENTON, C.J.

I concur in the result on the authority of Mulgado v. Diaz, 933 So.2d 658 (Fla. 1st DCA 2006); Mulgado v. Rodriguez, 933 So.2d 657 (Fla. 1st DCA 2006); and Campen v. Jones, 376 So.2d 456 (Fla. 1st DCA 1979).


text:
    Shane Michael SHELNUTT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6046.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    James Owens, Public Defender, and Jason Douglas McKinney, Assistant Public Defender. DeFuniak Springs, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted and case number 1D10-5165, which was dismissed when counsel failed to timely file a brief, is hereby reinstated.

The record on appeal has been filed in the above-referenced appeal. Further, the Public Defender for the Second Judicial Circuit has been designated. The initial brief in case number 1D10-5165 shall be filed within 30 days of the date of issuance of mandate in this cause.

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    SHANDS MEDICAL CENTER, INC., Petitioner, v. FLORIDA DEPARTMENT OF HEALTH, Respondent.
    No. 1D11-6708.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Seann M. Frazier and M. Hope Keating of Greenberg Traurig, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Charlyne M. “Khai” Patterson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as moot.

LEWIS, ROBERTS, and RAY, JJ., concur.


author: WHATLEY, Judge.

text:
    Roger E. TETRAULT, as trustee of the Roger E. and Linda A. Tetrault Foundation, a/k/a The Tetrault Family Foundation, Petitioner, v. Paul F. CALKINS and Kelley C. Calkins, Respondents.
    No. 2D11-4158.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.

      Michael R. Whitt and Daniel L. Wallach of Becker & Poliakoff, P.A., Fort Myers, for Petitioner.
    Brian M. Beason and W. Cort Frohlich of Wilkins Frohlich, P.A., Port Charlotte, for Respondents.
   WHATLEY, Judge.

Roger E. Tetrault, as Trustee of the Roger E. and Linda A. Tetrault Foundation, petitions this court for a writ of cer-tiorari to quash the trial court’s order denying his motion to discharge the lis pendens placed on parcels G and H of the Foundation’s property by Paul F. and Kelley C. Calkins. The Calkins own adjoining parcels E and F. All of the parcels are subject to the Riverside Land Trust Declaration of Restrictions. The Calkins filed an action against Tetrault seeking a permanent injunction against his use of parcel GH as part of the proposed Peace River Botanical and Sculpture Garden based on prohibitions of such use in the Restrictions. The Cal-kins also sought “incidental damages” from the lost sale of parcel E and the diminution in value of their property. We grant the writ of certiorari because a lis pendens on the Foundation’s property was not authorized under these circumstances.

“Certiorari is the proper vehicle to review an order denying a motion to discharge a lis pendens.” Sheehan v. Reinhardt, 988 So.2d 1289, 1290 (Fla. 2d DCA 2008). To obtain certiorari relief from an allegedly erroneous interlocutory order, a petitioner must establish that the order is: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). This court considers the second and third prongs of this test first because they are used to determine jurisdiction. Id.

The Roger E. and Linda A. Tetrault Foundation and Charlotte County have entered into a development agreement whereby the Foundation will build and manage the Garden on twenty-seven acres of real property that it owns in Charlotte County. Parcel GH is part of the twenty-seven acres. The Foundation will donate the property by deed to the County and lease it for $1 a year for ninety-nine years. The timing of the conveyance is placed in the Foundation’s sole discretion. The development agreement states that the Charlotte County Board of Zoning Appeals approved a special exception to allow a private park on the property, which is zoned for single-family residences.

The Calkins seek an injunction to prohibit parcel GH from being developed as part of the Garden because the Restrictions limit all parcels to being used for single family residences, and they prohibit all parcels from being used for any “trade, business, profession or other type of commercial activity.” In their complaint, the Calkins alleged that a potential buyer of their property backed out of a purchase contract upon learning of the Foundation’s plans to build the Garden. In addition to the injunction, they seek “incidental damages relative to the lost sale and the diminution of the value of them property.”

Two months after they filed their complaint, the Calkins filed a notice of lis pendens on parcel GH. Tetrault argues that the effect of the lis pendens is to prevent the Foundation from conveying the parcels to Charlotte County. Indeed, “because lis pendens operates as a cloud on the title and prevents an owner from selling or dealing with it, it is a harsh and oppressive remedy.” Avalon Assocs. of Del. Ltd. v. Avalon Park Assocs., Inc., 760 So.2d 1132, 1134 (Fla. 5th DCA 2000) (citing 8 Thompson, Real Prop. § 4308 (1963)). Thus, the lis pendens subjects Tetrault to material harm not remediable on appeal.

The order denying the motion to discharge lis pendens is a departure from the essential requirements of law because the Calkins have no interest in Tetrault’s parcel GH which would serve as the basis for a lis pendens.

One of several purposes underlying the doctrine of lis pendens is that, when a suit is filed that could affect title in property, some notice should be given to future purchasers or encumbrancers of that property. This serves the purposes of protecting those purchasers or en-cumbrancers from becoming embroiled in the dispute, and of protecting the plaintiff from intervening liens that could impair any property rights claimed and also from possible extinguishment of the plaintiffs unrecorded equitable lien.

Chiusolo v. Kennedy, 614 So.2d 491, 492 (Fla.1993) (citation omitted; footnote omitted). The Calkins’ action for an injunction is based on the Restrictions governing the use of parcel GH. Deed restrictions prohibiting a particular use of property “convey no interest in the land.” The Bd. of Pub. Instruction of Dade Cnty. v. Town of Bay Harbor Islands, 81 So.2d 637, 642 (Fla.1955); accord Homer v. Dadeland Shopping Ctr., Inc., 229 So.2d 834, 836 (Fla.1969) (“a restrictive covenant ... is but a creature of equity arising out of contract”). Because the Calkins have no interest in Tetrault’s parcels and their action does not affect the title to those parcels, a lis pendens on parcel GH was not authorized. See Chiusolo, 614 So.2d at 492; Laroche v. Nehama, 948 So.2d 850, 851 (Fla. 3d DCA 2007) (“One of the purposes of a lis pendens is to put possible future purchasers on notice that there could be a problem with title to the property.”); see also DeGuzman v. Balsini, 930 So.2d 752, 755 (Fla. 5th DCA 2006) (“When the primary purpose of a lawsuit is to recover money damages and the action does not directly affect the title to or the right of possession of real property, the filing of a notice of lis pendens is not authorized. A notice of lis pendens is properly filed when a person seeks to enforce lien upon designated real estate .... ” (citation omitted)).

Accordingly, we grant Tetrault’s petition for writ of certiorari and quash the order denying his motion to discharge lis pen-dens.

Certiorari granted.

ALTENBERND and CRENSHAW, JJ., Concur.

      . We are referring to the parcels owned by the parties as the Calkins referred to them in their complaint.


author: POLEN, J.

text:
    Amy DRDEK, Appellant, v. Dennis J. DRDEK, Appellee.
    No. 4D10-3082.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Robin Bresky and Jonathan Mann of Law Offices of Robin Bresky, Boca Raton, for appellant.
    Troy W. Klein of Law Office of Troy W. Klein, West Palm Beach, for appellee.
   POLEN, J.

Former wife appeals the order of the trial court sustaining former husband’s exceptions to the magistrate’s report and denying her motion for contempt. The facts of this case can be best summarized from the trial court’s order, sustaining former husband’s exceptions to the magistrate’s report:

This case presents an interesting legal issue for the Court. The parties were divorced on March 16, 2005. The final judgment incorporated a marital settlement agreement f] that provided that the husband would pay the wife permanent non-modifiable alimony. The agreement also contained a provision regarding a waiver of either parties’ ability to collect life insurance, IRA, 401(k), profit sharing plan and/or retirement benefits. The Former Wife is on disability and the Former Husband began collecting social security shortly after the divorce.
In November, 2005, just 8 months after the divorce was filed, the Former Wife filed a motion for contempt based upon the non-payment of alimony. The Former Husband argued that the $1,067 per month he receives in social security is a retirement benefit and is not subject to be used for alimony. Magistrate Joy Shearer agreed and entered a report finding that the Former Husband was not in willful contempt. The Former Wife, who was pro se, filed no exception and the Honorable William Berger entered an Order on May 9, 2006 incorporating Magistrate Shearer’s report.
This case was before Magistrate Kiri-gin on the Former Wife’s motion for contempt for non-payment of alimony. Magistrate Kirigin in her report rejected the Law of the Case Doctrine and instead applied the holding in Logue v. Logue, 766 So.2d 313 ([Fla. 4th DCA 2000), where the court held that the Law of the Case Doctrine need not be applied where a manifest injustice would result. Magistrate Kirigin found that Magistrate Shearer’s interpretation of the plain meaning of the parties’ marital settlement agreement was erroneous!] ... Notwithstanding, there was never an objection and/or exception filed based upon that report and Judge Berger, a circuit judge assigned to family division entered an order approving that report. Does a magistrate have the authority to overrule a circuit judge based upon a finding of manifest injustice? Does this circuit judge have the authority to overrule another circuit judge because this judge may believe the predecessor judge was incorrect? This Court believes the answer to both questions is “no.”
The court in Logue noted that exceptions to the doctrine of the law of the case should be invoked only in unusual circumstances. Further, the court held that this is a “seldom used but important appellate power.” Id. at 314. While this Court is sympathetic to the Former Wife’s position, this Court is without authority to abandon the doctrine of the law of the case. Kohn v. City of Miami Beach, 611 So.2d 538 (Fla. 3d DCA 1993). To do so at the magistrate or trial court level would create uncertainty for future litigation. After all, parties could just wait until the assigned judge and/or magistrate is reassigned and bring the case back to court at that time.
As noted, this Court agrees with the magistrate’s report. Notwithstanding, any “manifest injustice” needs to be corrected, if at all, by the appellate court.

The trial court then granted former husband’s exceptions and quashed Magistrate Kirigin’s report.

A trial court’s adoption and ratification of a general magistrate’s report and recommendation is reviewed for an abuse of discretion. Collado v. Pavlow, 951 So.2d 69, 70 (Fla. 5th DCA 2007) (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). On appeal, former wife argues that the answer to both questions framed by the trial court is “yes.” We agree with the trial court but remand for an evidentiary hearing to determine if former husband has any other assets, aside from income derived from his life insurance, pension, IRA, 401(k), profit sharing or retirement benefits, to pay former wife alimony.

We first note our disagreement with the trial court’s application of the “law of the case” doctrine. The doctrine of “law of the case,” a principle of judicial estoppel, “requires that questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.” Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001) (citation omitted). The doctrine is “limited to rulings on questions of law actually presented and considered on a former appeal.” Id. at 106 (emphasis in original). The doctrine of law of the case does not apply in this scenario; it applies only when matters are remanded to a trial court from an appellate court. As such, the trial court was not bound by the doctrine of law of the case to sustain former husband’s exceptions to Magistrate Kirigin’s report.

Instead, we agree with former husband that the principle enunciated in Groover v. Walker, 88 So.2d 312 (Fla.1956), applies, preventing Magistrate Kirigin and the circuit court from overruling Judge Berger’s order on Magistrate Shearer’s report. In Groover, the supreme court held:

The Court is committed to the general proposition that a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor.... [Wjhen parties are aggrieved by a decree an appeal should be taken rather than application made to another circuit judge, where no matters are presented that should be adjudicated by a circuit judge.

Id. at 313 (citation omitted).

We also note that although the remedy former wife sought was contempt, the real issue which must be determined on remand is how, if at all, she can recover past-due alimony. There is no question former husband owes former wife all accrued alimony payments. Pursuant to the MSA, the alimony provision is non-modifiable, and former husband never sought nor obtained an order terminating his alimony obligation. We remand to the trial court to conduct further proceedings to determine whether former husband has the ability to pay alimony from other assets besides his life insurance, pension, IRA, 401(k), profit sharing plan and/or retirement benefits, as described in the parties’ MSA.

Affirmed in part; Remanded in part.

GROSS and CONNER, JJ„ concur.

      . The parties' marital settlement agreement (MSA) requires former husband to pay former wife $400.00 each bi-weekly pay period and also provides:
      Each party hereby waives any past, present or future rights or interest that he or she may have acquired, or may acquire in the future, in and to the other party’s life insurance, pension, IRA, 401(k), profit sharing plan and/or retirement benefits. The life insurance, pension, IRA, 401(k), profit sharing plan, and/or retirement benefits shall remain the sole and exclusive property of the party named therein and whom possesses or controls said property and the other party hereby conveys all right, title, and interest in the property to the other and otherwise disclaims all rights to make any claims thereto.

      . Magistrate Kirigin specifically found:
      [The MSA contains] a reciprocal waiver of equitable distribution of the parties’ respective life insurance, pension, IRA, 401(k), profit sharing plan and/or retirement benefits for purposes of property distribution. It is not a waiver of any income flow derived therefrom for purposes of the payment of alimony or a contempt purge. Any other construction would be, simply put, absurd at the time of contracting and at any time in the future given the former wife’s disability, need for spousal support, and the former husband’s age, health condition and retirement.


text:
    Victor Manuel MENA, Appellant, v. J.I.L. CONSTRUCTION GROUP CORP., a Florida corporation, Slorp Construction Company, Inc., a Florida corporation, and C.C.R.C. Construction, Inc., a Florida corporation, Appellees.
    No. 4D10-2587.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Pamela Beckham of Beckham & Beck-ham, P.A., North Miami Beach, for appellant.
    Thomas A. Valdez and Brooke Chastain Juan of Quintarnos, Prieto, Wood and Boyer, P.A., Tampa, for appellee J.I.L. Construction Group Corp.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee Slorp Construction Company, Inc.
   POLEN, J.

Appellant, Victor Mena, appeals final orders of the trial court granting summary judgment in favor of appellees, J.I.L. Construction Group Corporation (“J.I.L.”) and Slorp Construction Company, Inc. (“Slorp”). The trial court determined that J.I.L. and Slorp were immune from Mena’s tort action because worker’s compensation was Mena’s exclusive remedy. J.I.L. and Slorp and their carriers had previously denied Mena’s claims for worker’s compensation. We reverse the trial court’s order granting summary judgment for J.I.L. because issues of material fact remain with respect to whether J.I.L. is estopped from claiming that it is entitled to worker’s compensation immunity, based on the language it used when it denied benefits to Mena. We affirm the order granting summary judgment for Slorp because Slorp is not estopped from asserting immunity and is otherwise entitled to immunity under the Worker’s Compensation Act. We also affirm the trial court’s denial of Mena’s motion for partial summary judgment.

The general contractor for a residential development in Davie, Florida subcontracted the shell construction of the homes to Slorp. Slorp subcontracted part of its work to J.I.L. J.I.L. hired Victor Mena. On December 4, 2004, while constructing a home, Mena fell to the ground from a second-floor roof truss. Mena sustained multiple injuries and incurred over $70,000 in medical expenses.

Mena filed claims for worker’s compensation benefits with J.I.L. and Slorp. Slorp denied Mena’s “entire claim both medically and indemnity.” Slorp maintained in its notice of denial that Mena was employed by J.I.L., not Slorp, and that J.I.L. had provided Slorp with proof that J.I.L. had a policy of worker’s compensation insurance in effect for the date of Mena’s accident. J.I.L.’s notice of denial also informed Mena that it was denying his “entire claim.” As its reasons, J.I.L. stated:

1. There is no employer/employee relationship established.
2. Failure to report injury timely.
3. The Employer/Carrier/Sei’vicing Agent reserves the right to these and any other defenses that may become apparent.

Eight months after he petitioned for benefits, Mena voluntarily dismissed his petitions and filed suit against J.I.L. and Slorp for negligence. As an affirmative defense, Slorp asserted that Mena “was acting in the course and scope of employment performing work subcontracted by the Defendant [Slorp] to Plaintiffs employer [J.I.L.] and therefore, the Plaintiffs claim is barred as a result of workers’ compensation immunity pursuant to Florida Statute 440.11.” J.I.L. asserted that “Plaintiffs damages are hatred by Florida’s workers compensation statute.” Both J.I.L. and Slorp also defended by listing comparative negligence and assumption of the risk as affirmative defenses.

Mena moved for partial summary judgment, arguing that under section 440.11(l)(a), Florida Statutes (2008), J.I.L. and Slorp were not entitled to defenses of comparative negligence or assumption of the risk. The trial court denied this motion. J.I.L. and Slorp moved for summary judgment on the basis that they were immune from Mena’s tort suit as a matter of law because Mena’s injuides were compen-sable exclusively under Florida’s Worker’s Compensation Act. J.I.L. acknowledged that it was Mena’s employer. Mena argued that J.I.L. and Slorp should be es-topped from asserting worker’s compensation immunity because of their previous denials. The trial court granted summary judgment in favor of both J.I.L. and Slorp, finding that their previous “general denials” were not inconsistent with their claims of entitlement to worker’s compensation immunity. We now reverse the trial court’s award of summary judgment for J.I.L., but affirm the award for Slorp.

The standard of review of an order granting summary judgment is de novo. Coleman v. Grandma’s Place, Inc., 63 So.3d 929, 932 (Fla. 4th DCA 2011). If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, summary judgment is inappropriate. Id. On a motion for summary judgment, “the court’s function is solely to determine whether the record conclusively shows that the moving party proved a negative, that is, ‘the nonexistence of a genuine issue of a material fact.’ ” Nunes v. Allstate Inv. Props., Inc., 69 So.3d 988, 989 (Fla. 4th DCA 2011) (citation omitted). Summary judgment should not be granted “[w]here a written instrument lends itself to more than one reasonable interpretation.” Yardum v. Scalese, 799 So.2d 382, 383 (Fla. 4th DCA 2001).

“[U]nder Florida law, where injuries are not encompassed within our Worker’s Compensation Act, the employee is free to pursue his or her common law remedies.” Tractor Supply Co. v. Kent, 966 So.2d 978, 981-82 (Fla. 5th DCA 2007). Further, where an employer denies a claim for worker’s compensation benefits on the basis that the injury did not occur in the course and scope of employment, or that there was no employment relationship, the employer may be estopped from asserting in a later tort action that the worker’s exclusive remedy was worker’s compensation, provided that the employee can satisfy the elements of estoppel. See Coastal Masonry, Inc. v. Gutierrez, 30 So.3d 545, 547-49 (Fla. 3d DCA 2010); Byerley v. Citrus Publ’g, 725 So.2d 1230, 1232-33 (Fla. 5th DCA 1999) (a contrary rule “would eviscerate the Workers’ Compensation Act and allow employers to avoid all liability for employee job related injuries”). For the possibility of estoppel to arise, however, the employer’s assertion of worker’s compensation immunity must be “clearly irreconcilable” with the reason for its initial denial. Kent, 966 So.2d at 981; Ashby v. Nat’l Freight, Inc., No. 8:09-cv-582-T-30MAP, 2009 WL 1767620, at *3 (M.D.Fla. June 23, 2009) (estoppel is “only available when the employer attempts to take inconsistent positions”).

If the language employed in the notice of denial could give rise to more than one interpretation, such that it cannot be fairly determined whether the employer’s positions are inconsistent, summary judgment is inappropriate. Schroeder v. Peoplease Corp., 18 So.3d 1165, 1168-69 (Fla. 1st DCA 2009); Elliott v. Dugger, 542 So.2d 392, 394 (Fla. 1st DCA 1989). In Schroeder, the employer’s notice of denial listed six different reasons. 18 So.3d at 1166. Two of the reasons stated, “The present condition of claimant is not the result of injury arising out of and in the course of his or her employment,” and “The condition complained of is not the result of an injury within the meaning of the term as used in the Florida Compensation Act.” Id. The other four reasons suggested that the denial was based on a preexisting condition of the employee. Id. The First District reversed the trial court’s entry of summary judgment, holding “[w]hether es-toppel is appropriate in this case and whether the employer took irreconcilable positions is dependent upon the meaning to be accorded the notice of denial.” Id. at 1170. See also Elliott, 542 So.2d at 394 (reversing summary judgment because “genuine issues of material fact concerning the issue of estoppel” existed where the denial could have meant either “that there had yet been no injury shown” or “the injury was not a covered injury”).

In the instant case, J.I.L. argues that the first reason for its denial, i.e., that “[tjhere is no employer/employee relationship established,” left an open question as to Mena’s status as its employee. Therefore, the argument goes, its later admission that Mena was its employee just “closes” the question; there is no inconsistency between its assertion that it is entitled to worker’s compensation immunity and this reason for the denial. We disagree. J.I.L.’s denial suggested it was asserting that Mena was not its employee. At the very least, as in Schroeder, “the meaning of the language employed in the notice of denial” is unclear. 18 So.3d at 1170. Accordingly, issues of material fact remain with respect to whether J.I.L. asserted inconsistent positions and whether it should be estopped from claiming it is entitled to worker’s compensation immunity under section 440.11(1), Florida Statutes (2004). We therefore reverse the entry of summary judgment in favor of J.I.L.

By contrast, in our view, the record indicates that Slorp maintained consistent positions in the worker’s compensation forum and in Mena’s civil action. Slorp denied Mena’s worker’s compensation claim on the basis that Mena was employed by J.I.L., not Slorp, and that J.I.L. had coverage. Slorp’s affirmative defense of worker’s compensation immunity stated that Mena was acting in the course and scope of employment performing work subcontracted by Slorp to J.I.L. Accordingly, we hold that there was no inconsistency, and no corresponding possibility of an estoppel as to Slorp.

We note that, contrary to the arguments of J.I.L. and Slorp, under the circumstances of this case Mena was not required to litigate his claims to a final adjudication in the worker’s compensation forum. For this proposition, J.I.L. and Slorp rely on Marta v. Continental Manufacturing Co., 400 So.2d 181 (Fla. 4th DCA 1981). In Marta, an injured employee filed a claim for worker’s compensation benefits, and the employer’s carrier disputed the existence of coverage. Id. After a hearing, a worker’s compensation judge determined that, in fact, the employer did not have coverage. Id. at 181-82. The employee filed suit in circuit court, and the trial court dismissed the complaint on the basis that the employee’s “original filing of a claim” in the worker’s compensation forum “constituted an election of remedies.” Id. at 182. This court reversed, holding that the employee could not have made an election of remedies because “his right to sue in circuit court did not accrue until it had been determined that [the employer] lacked insurance coverage.” Id. We noted that “suit in circuit court was not an option available to [the employee] prior to that determination.” Id.

Marta is consistent with the well-established “rule that either a dismissed or an unsuccessful compensation claim does not bar a damage suit.” Lowry v. Logan, 650 So.2d 653, 656 (Fla. 1st DCA 1995). See also Williams v. Duggan, 153 So.2d 726, 727 (Fla.1963); Rush v. BellSouth Telecomms., 773 F.Supp.2d 1261, 1263-64 (N.D.Fla.2011) (“Nothing in Kent, or any other Florida case for that matter, even remotely stands for the proposition” that an employee’s “claims should be decided by the judge of compensation claims before [the employee] is allowed to bring a claim in civil court” where employer denies claim in the compensation forum because the claim is outside the course and scope of employment).

It remains to be determined whether the trial court was correct in holding that Slorp was entitled to worker’s compensation immunity. “The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, including vicarious liability, of such employer to ... the employee,” unless the employer fails to secure payment of compensation or commits an intentional tort. § 440.11(1), Fla. Stat. (2004).

Specifically, with respect to a contractor-subcontractor relationship:

In case a contractor sublets any part or parts of his or her contract work to a subcontractor or subcontractors, all of the employees of such contractor and subcontractor or subcontractors engaged on such contract work shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

§ 440.10(1)(b), Fla. Stat. (2004). Put differently, “where a subcontractor performing part of the work of a contractor fails to secure payment of compensation, the contractor is liable for the same.” Amorin v. Gordon, 996 So.2d 913, 916 (Fla. 4th DCA 2008) (quoting Motchkavitz v. L.C. Boggs Indus., Inc., 407 So.2d 910, 912 (Fla.1981), overruled on other grounds by Emp’rs Ins. of Wausau v. Abernathy, 442 So.2d 953 (Fla.1983)). Section 440.10 “insure[s] that a particular industry will be financially responsible for injuries to those employees working in it, even though the prime contractor employs an independent contractor to perform part or all of its contractual undertaking.” Roberts v. Gator Freightways, Inc., 538 So.2d 55, 60 (Fla. 1st DCA 1989). The scheme set forth in section 440.10(l)(b) applies to a subcontractor-subsubcontractor relationship as well, like the one in this case. Dempsey v. G & E Constr. Co., 556 So.2d 426, 427 (Fla. 4th DCA 1989).

J.I.L. procured a policy of worker’s compensation insurance that was in effect for the date of Mena’s accident. Slorp verified that J.I.L. had coverage. Slorp was Mena’s statutory employer because it owed a contractual obligation to the general contractor and subcontracted a portion of that work to J.I.L., thus taking on the responsibility to provide coverage for Mena in the event J.I.L. failed to do so. See Candyworld, Inc. v. Granite State Ins. Co., 652 So.2d 1165, 1167 (Fla. 4th DCA 1995); Woods v. Carpet Restorations, Inc., 611 So.2d 1303, 1304 (Fla. 4th DCA 1992). “[WJhere the statutory employer secures coverage or ensures that the subcontractor does so, the statutory employer is immune from suit for the employees’ personal injuries.” Adams Homes of Nw. Fla., Inc. v. Cranfill, 7 So.3d 611, 613 (Fla. 5th DCA 2009) (emphasis added). Accord Latite Roofing & Sheet Metal Co. v. Barker, 886 So.2d 1064, 1066 (Fla. 4th DCA 2004) (eon-tractor “performed in the way the statute sought to encourage” and was “entitled to immunity” where it verified that its subcontractor had coverage); Motchkavitz, 407 So.2d at 913 (“It is the liability to secure coverage for such employees in the event the subcontractor does not do so that immunizes a contractor from suit by such employees.”). Consequently, Slorp was immune from Mena’s negligence action, and we affirm the trial court’s entry of summary judgment for Slorp.

We also affirm the trial court’s denial of Mena’s motion for partial summary judgment. Mena sought a determination that, as a matter of law, J.I.L. and Slorp were not entitled to assert traditional affirmative defenses to negligence: that the injury was caused by negligence of a fellow employee, that Mena assumed the risk, or that the injury was caused by Mena’s own comparative negligence. Section 440.11, Florida Statutes, provides that a defendant “may not plead” these defenses in an employee’s action at law following his or her employer’s failure to secure payment of compensation. § 440.11(l)(a), Fla. Stat. (2008). Because we conclude that material issues of fact remain with respect to whether J.I.L. is estopped from asserting its worker’s compensation immunity defense, at this juncture, determining whether section 440.11 is applicable is premature.

Affirmed in part, Reversed in part, and Remanded for proceedings consistent with this opinion.

TAYLOR and GERBER, JJ., concur.

      . The statutory language "secure payment of compensation” means "insuring and keeping insured the payment of such compensation with any stock company or mutual company or association or exchange, authorized to do business in the state." § 440.38(l)(a), Fla. Stat. (2004); Limerock Indus., Inc. v. Pridgeon, 743 So.2d 176 (Fla. 1st DCA 1999). We therefore reject Mena’s argument that the term imposes an automatic duty to actually pay benefits wherever it is used in the statute.


author: DAMOORGIAN, J.

text:
    Timothy Lewis McLAUGHLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2255.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Timothy McLaughlin appeals his judgment and sentence on two counts of lewd or lascivious molestation on a child under age twelve. One count applied to victim D.M. and the other to victim H.M. McLaughlin raises two issues on appeal: (1) the trial court erred in allowing a screen to be placed between the witness stand and McLaughlin while each victim testified in open court; and (2) the prosecutor’s improper comments during closing argument amounted to fundamental error. Finding merit to McLaughlin’s first issue on appeal, we reverse and remand for a new trial, concluding that the use of the screen in the courtroom was not authorized by the applicable statute and unduly compromised the presumption of innocence fundamental to the right to a fair trial. We find no error in connection with the prosecutor’s statements during closing argument, and do so without further comment.

The following facts are necessary to the disposition of the issue on appeal. After the trial started, the State made a motion pursuant to section 92.54, Florida Statutes (2010), to place a screen between the witness stand and McLaughlin in the courtroom to block the victims’ view of McLaughlin. The victims’ therapist and their mother provided testimony describing the victims’ mental states and the harm that would result from the children seeing McLaughlin in the courtroom. Defense counsel timely objected to the State’s motion and argued that the use of the screen violated McLaughlin’s Sixth Amendment rights, and the State failed to prove “anywhere near the level necessary” to circumvent these rights. The court granted the State’s motion.

When it came time for D.M. and H.M. to testify, the jury was removed from the courtroom, and a screen was placed between the witness stand and McLaughlin. The jury was then brought back into the courtroom. Additionally, both of the victims were brought into the courtroom through a different door than other witnesses to avoid having any contact with McLaughlin. D.M. and H.M. testified behind a screen, which blocked their view of McLaughlin and McLaughlin’s view of them. McLaughlin was permitted to observe the victims testify via a television monitor, presumably to satisfy McLaughlin’s Sixth Amendment right to confrontation.

McLaughlin argues that his due process rights were violated because the placement of the screen between the victims and him during their testimony was inherently prejudicial. See Pozo v. State, 963 So.2d 831, 836 (Fla. 4th DCA 2007) (“[A] defendant must either show inherent prejudice or actual prejudice to the fairness of the fact-finding process in order to establish a violation of the defendant’s constitutional right to a fair trial.”) (citing Holbrook v. Flynn, 475 U.S. 560, 572, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986)) (emphasis in original). “Actual prejudice requires some indication or articulation by a juror or jurors that they were conscious of some prejudicial effect.” Shootes v. State, 20 So.3d 434, 438 (Fla. 1st DCA 2009) (citation omitted). “Inherent prejudice, on the other hand, requires a showing by the defendant that there was an unacceptable risk of impermissible factors coming into play.” Id. (citations omitted).

We begin our analysis by noting, as did our sister court in Hughes v. State, 819 So.2d 815 (Fla. 1st DCA 2002), that “section 92.54 provides for the use of closed circuit television but not a partition.” Id. at 816; see Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (stating that “[i]t is difficult to imagine a more obvious or damaging violation of the defendant’s right to a face-to-face encounter” than screen-shielding the child accuser from the defendant).

More recently, the Nebraska Supreme Court, under strikingly similar circumstances, concluded that placing a screen between the victim and the defendant while the victim testified was inherently prejudicial. See State v. Parker, 276 Neb. 661, 757 N.W.2d 7, 18-19 (2008). In Parker, during the testimony of the alleged victim, the court placed a large screen in the courtroom to block the defendant and victim from seeing one another. Declaring that the practice violated the defendant’s right to a fair trial, the Nebraska court stated:

[T]he screen unduly compromised the presumption of innocence fundamental to the right to a fair trial. The presence of the screen in the courtroom, in an obvious and peculiar departure from common practice, could have suggested to the jury that the court believed [the victim] and endorsed her credibility, in violation of [the defendant’s] right to a fair trial.

Id. at 11. In reversing the defendant’s conviction, the court concluded:

[T]he inherently prejudicial practice in this case cannot pass close scrutiny, because the court had available another equally effective method of protecting [the victim] while procuring her testimony that would not have been inherently prejudicial to [the defendant’s] due process rights. Section 29 — 1926[] specifically provides for various means of obtaining the victim’s testimony through pretrial videotaping or closed-circuit video from another room. It does not, actually, make any reference to using a screen in the courtroom.

Id. at 18.

We conclude that section 92.54 does not authorize the use of a screen in the manner employed in this case, and that doing so lent undue credibility to the witnesses. The proper procedure would have been to have the witnesses testify outside the courtroom via closed circuit television, after the court concluded that the victims would suffer emotional or mental harm due to the presence of McLaughlin. See § 92.54, Fla. Stat.

The State has made no attempt to establish that this inherently prejudicial practice was harmless and did not actually contribute to the jury’s verdict. Nonetheless, we hold that the error was harmful. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986); see § 924.33, Fla. Stat. (2010) (“No judgment shall be reversed unless the appellate court is of the opinion, after an examination of all the appeal papers, that error was committed that injuriously affected the substantial rights of the appellant.”). McLaughlin never admitted to committing the acts on the victims, and the State’s entire case relied upon their testimony. Both of the victims testified that McLaughlin used threats to keep them from telling anyone about the alleged abuse. Therefore, the jurors could have made the inference that the screen was used because the court believed the victims needed to be protected from testifying in the presence of McLaughlin. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

MAY, C.J., and HAZOURI, J., concur.

      . "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” U.S. Const. amend. VI; see Pozo v. State, 963 So.2d 831, (Fla. 4th DCA 2007) ("The due process clause of the Fourteenth Amendment guarantees the right of state criminal defendants to be tried by an impartial jury. The Fourteenth Amendment incorporates the essence of the Sixth Amendment right ....”) (quoting Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961)).

      . Section 92.54 provides:
      (1) Upon motion and hearing in camera and upon a finding that there is a substantial likelihood that the child ... will suffer at least moderate emotional or mental harm due to the presence of the defendant if the child ... is required to testify in open court, ... the trial court may order that the testimony of a child under the age of 16 ... who is a victim ... be taken outside of the courtroom and shown by means of closed circuit television.

      (4) During the child's ... testimony by closed circuit television, the court may require the defendant to view the testimony from the courtroom. In such a case, the court shall permit the defendant to observe and hear the testimony of the child ... but shall ensure that the child ... cannot hear or see the defendant.
      92.54(1), (4) Fla. Stat. (2010).

      ."In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

      . Even though the court in Hughes noted that the use of a partition to separate the defendant from the minor victim was error, it held that the error was harmless because the defendant had admitted to committing the lewd and lascivious acts upon the child. Hughes, 819 So.2d at 815-16.

      . "Upon request of the prosecuting or defense attorney and upon a showing of compelling need, the court shall order the taking of a videotape deposition of a child victim of or child witness to any offense punishable as a felony. The deposition ordinarily shall be in lieu of courtroom or in camera testimony by the child.” Neb. Rev. St. § 29-1926(l)(a) (2008).


author: NORTHCUTT, Judge.

text:
    C.J.E., Appellant, v. S.D.A., Appellee.
    No. 2D08-6427.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.
    William A. Boija, Clearwater, for Appellant.
    No appearance for Appellee.
   NORTHCUTT, Judge.

C.J.E., the mother, appeals a final judgment of paternity. She argues that the trial court erred by calculating child support without factoring in her child care expenses. We agree and reverse.

Child support in paternity actions is determined according to the guidelines in chapter 61, Florida Statutes. See § 742.031(1), Fla. Stat. (2008) (requiring court in paternity action to set child support pursuant to section 61.30). When calculating the basic child support obligation, the court is required to include seventy-five percent of a parent’s child care costs incurred “due to employment, job search, or education calculated to result in employment or to enhance income of current employment.” § 61.30(7), Fla. Stat. (2008). In this case, the court ordered S.D.A., the father, to pay child support retroactive to the child’s birth. But the court failed to include the mother’s child care costs when it determined the amount of child support.

Because this error is apparent on the face of the final judgment, we may correct it even though the record on appeal lacks both a transcript and a statement of the evidence prepared under Florida Rule of Appellate Procedure 9.200(b)(4). See Wilcox v. Munoz, 35 So.3d 136, 139 (Fla. 2d DCA 2010) (reversing child support award, even in the absence of a transcript, when final judgment lacked factual findings on parties’ incomes, and noting error apparent on the face of the judgment in the trial court’s failure to properly factor in child care costs). Accordingly, we reverse and remand for the court to recalculate child support after including the child care costs incurred by the mother. See Waters v. Bland, 935 So.2d 1239 (Fla. 2d DCA 2006) (reversing child support award and remanding for trial court to address child care costs).

Reversed and remanded.

VILLANTI and BLACK, JJ., Concur.


author: CRENSHAW, Judge.

text:
    Gerald HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2067.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.
   CRENSHAW, Judge.

Gerald Hayes appeals the summary denial of his motion for postconviction relief, wherein he raised three grounds of ineffective assistance of counsel pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the postconviction court’s denial of grounds one and three without further discussion. However, we conclude that ground two was facially insufficient, and therefore the postconviction court should have struck the claim with leave to amend pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), rather than entering a summary denial.

Hayes, who was convicted of sale of cocaine and possession of cocaine, presented a defense of misidentification at trial. He alleged in ground two of his motion that his trial counsel was ineffective for misadvising him not to testify in his own defense. Although Hayes claimed that he was prejudiced by his counsel’s actions, he did not allege what he would have testified to or how his testimony would have affected the result of the proceeding. The post-conviction court summarily denied this claim by citing to portions of the trial transcript in which Hayes stated in a colloquy to the court that he felt it was in his best interest not to testify and that he was satisfied with trial counsel’s help and advice.

The first step in determining whether there was ineffective assistance of counsel where defendant claims he would have testified is to determine whether the defendant voluntarily agreed with counsel not to take the stand. If that is established, then the trial court must answer the separate and second question which is whether counsel’s advice to defendant “even if voluntarily followed, was nevertheless deficient because no reasonable attorney would have discouraged [defendant] from testifying.”

Simon v. State, 47 So.3d 883, 885 (Fla. 3d DCA 2010) (quoting Lott v. State, 931 So.2d 807, 819 (Fla.2006)).

In Simon, the defendant maintained that his counsel misadvised him about testifying at trial and alleged what he would have testified to but for counsel’s misad-vice. The postconviction court summarily denied the defendant’s motion upon finding that the defendant voluntarily chose not to testify. However, the Third District determined that while the colloquy established that the defendant voluntarily agreed with counsel’s recommendation not to take the stand, an evidentiary hearing was still necessary to determine the second question of whether counsel’s advice was deficient. Id. at 886. Similarly, although the record is clear in this case that Hayes voluntarily agreed with counsel not to take the stand, the postconviction court failed to address the second question discussed in Simon and Lott. But unlike in Simon, the court did not have the benefit of what Hayes would have said to determine any alleged deficiency. Hence, the second part of Hayes’ claim was facially insufficient and could not be conclusively refuted by the record. Therefore, the postconviction court should have struck the claim with leave to amend pursuant to Spera, 971 So.2d at 761-62.

Accordingly, we reverse the denial of ground two and remand for the court to strike the claim with leave to amend within a period of time not to exceed thirty days. If Hayes files an amended motion on this ground, “the postconviction court may again summarily deny the claim if it is once again facially insufficient or if the court attaches portions of the record conclusively refuting his allegations.” Philip v. State, 14 So.3d 1243, 1244 (Fla. 2d DCA 2009).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WHATLEY, JJ., Concur.


author: DAVIS, Judge.

text:
    Michael Todd HARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1082.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2012.

      Michael Todd Harrell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Michael Todd Harrell, pro se, challenges the summary denial of three claims in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. In that motion, he alleged ineffective assistance of counsel in conjunction with the negotiated no contest plea he entered to lewd and lascivious battery, possession of child pornography, and aggravated stalking of a child. Because the postconviction court failed to attach any portions of the trial court record to refute two of Harrell’s summarily denied claims, we reverse as to those claims. In all other respects, we affirm without further comment.

In his rule 3.850 motion, Harrell alleged that his counsel was ineffective for failing to seek to suppress the evidence obtained when officers entered his home by falsely claiming to have a warrant for the contents of his computer. Specifically, Harrell alleged that counsel should have challenged the existence of the warrant as well as the fact that the police lied to him when they came to his house without a warrant and coerced him into giving them computer disks containing the contents of his hard drive. The postconviction court summarily denied the claims, relying on the State’s response and attaching excerpts from the transcripts of the deposition of the officer who searched his home. If these excerpts are properly part of the record before the trial court, then they conclusively refute Harrell’s claim in that they establish that the officer provided counsel with a copy of the search warrant and noted the evidence that existed on which the police obtained such a warrant.

It is impossible to tell from the record provided to this court whether the deposition excerpts were part of the trial court record on which the postconviction court could properly rely. There is only one entry on the progress docket attached to the record on appeal which would indicate that any pretrial depositions were filed with the trial court. Based on this court’s authority in Harvester v. State, 817 So.2d 1048 (Fla. 2d DCA 2002), we ordered the appellate record to be supplemented with the transcripts from the depositions filed with the trial court on January 16, 2006. After reviewing these transcripts, it is clear that they do not match the transcript excerpts from the October 3, 2005, deposition that is attached to the State’s response. Accordingly, we remain unable to ascertain whether the State’s attachments could be used to conclusively refute the claims of ineffective assistance in a summary denial. See McLin v. State, 827 So.2d 948, 954 (Fla.2002) (“This Court has explained that ‘[t]o support summary denial without a hearing, a trial court must either state its rationale in its decision or attach those specific parts of the record that refute each claim presented in the motion.’ Anderson v. State, 627 So.2d 1170, 1171 (Fla.1993).... [Rule 3.850(d)] permits summary denial only if the ‘motion, files and records in the case conclusively show that the movant is entitled to no relief.’ Further, [rule 3.850(d) ] requires that ‘when the denial is,not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records should be attached to the order.’ ” (first alteration in original)). We therefore reverse the summary denial of Harrell’s rule 3.850 motion as it relates to the two claims related to the search of Harrell’s home. On remand, the postcon-viction court should either attach any portions of the trial record which would conclusively refute the claims or conduct an evidentiary hearing.

Affirmed in part, reversed in part, and remanded for further proceedings.

VILLANTI and CRENSHAW, JJ., Concur.

      . Only the transcripts from the December 1, 2005, deposition were established as part of the trial court record. Standing alone, these transcripts would not be sufficient to refute Harrell’s claims.


author: GROSS, J.

text:
    Samuel CHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4191.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

The state charged appellant with one count of sexual battery and one count of fraudulently using a credit card. The charges stemmed from an incident which took place on January 1, 2008, when appellant sexually battered a woman, took her credit card, and hours later used the credit card to purchase gasoline. Although we hold that there was no error in the denial of a motion to sever the two charges, we reverse because of the erroneous admission of a police detective’s opinion testimony relating to a video, which invaded the province of the jury to draw its own conclusion about whether appellant was the person depicted in the video.

We find no error in the trial court’s denial of the motion to sever the credit card incident from the sexual battery charge. The charges were properly brought in the same information, in that they were “based on ... 2 or more connected acts or transactions.” Fla. R.Crim. P. 3.150(a). Appellant had access to the victim’s credit card, the victim of both crimes was the same, and the credit card was used hours after the sexual battery. See Rutherford v. State, 902 So.2d 211, 213-14 (Fla. 4th DCA 2005). Nor did the trial court abuse its discretion in ruling that severance was not required “to promote a fair determination of the defendant’s guilt or innocence of each offense.” Fla. R.Crim. P. 3.152(a)(2)(A). The facts surrounding the sexual battery explained how appellant came to be in possession of the credit card. As in McGee v. State, 19 So.3d 1074, 1078 (Fla. 4th DCA 2009), the crimes in this case were committed against the same victim, in the same area, and the victim reported all of the crimes at the same time. Taken together, the two crimes provide “the entire context out of which the criminal action occurred.” Fotopoulos v. State, 608 So.2d 784, 790 (Fla.1992).

A separate issue concerns the playing of a surveillance video from the gas station depicting a man purchasing gasoline with the victim’s credit card. Over objection, the state elicited testimony from a detective that, while he was unable to identify the person in the video when he originally saw it, he was later able to piece things together and identify the person in the video as appellant.

To argue for reversal, appellant relies on Ruffin v. State, 549 So.2d 250 (Fla. 5th DCA 1989). In that case, the state offered a videotape of a drug purchase by an undercover police officer. See id. at 251. Over objection, three police officers who were not present for the undercover transaction testified that, in their opinion, Ruf-fin was the man in the videotape. Id. The fifth district held that this opinion testimony invaded the province of the jury:

This was an invasion of the province of the jury. When factual determinations are within the realm of an ordinary juror’s knowledge and experience, such determinations and the conclusions to be drawn therefrom must be made by the jury. [The three officers] were not eyewitnesses to the crime, they did not have any special familiarity with Ruffin, and they were not qualified as any type of experts in identification.

Id. (footnote omitted) (citation omitted); see also Edwards v. State, 583 So.2d 740 (Fla. 1st DCA 1991) (reversing when officer who employed an informant to make controlled, videotaped buy from appellant, but who did not witness buy firsthand, testified “he recognized appellant as the person shown on the tape making the sale to” informant).

As in Ruffin, the testifying officer in this case was not an eyewitness to the use of the credit card at the gas station, he had no special familiarity with appellant, and he was not otherwise qualified as an expert in video identification. At first, the officer was not able to identify appellant on the video. The jurors should have been left to determine for themselves whether appellant was the person in the surveillance video.

The error in admitting the officer’s identification testimony was not harmless. “[E]rror in admitting improper testimony may be exacerbated where the testimony comes from a police officer.” Martinez v. State, 761 So.2d 1074, 1080 (Fla.2000) (citation omitted). There is the danger that jurors will defer to what they perceive to be an officer’s special training and access to background information not presented during trial. Id. Here, the appellant’s defense to the sexual battery was consent; the victim’s in-court version of events was frequently inconsistent with what she told a 911 dispatcher, the responding police officers, and the person who examined her at a sexual assault treatment center. We cannot say beyond a reasonable doubt that the added credence the detective’s testimony lent to the credit card charge did not influence the verdict in the sexual battery. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.” (citation omitted)).

Reversed and remanded for a new trial.

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


author: WOLF, J.

text:
    Michael Anthony KING, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5136.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2012.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant seeks review of his conviction for possession of a firearm by a convicted felon. We reverse because the trial court erred in denying appellant’s motion to suppress.

The facts adduced at the motion hearing established that an officer was dispatched to appellant’s home following a domestic disturbance call. When the officer arrived, only the wife remained in the home. The officer, who knew appellant was a convicted felon, asked the wife if her husband had any guns in the home. The wife responded in the affirmative. The officer asked where the gun was located. The wife led him to the bedroom she shared with appellant and to the master closet which contained both her and appellant’s clothing. The wife told the officer that the gun was in a safe on the floor of the closet, and she did not have a key. The officer removed the safe from the closet and took it to his patrol car. He then pried it open with a screwdriver. A gun was found inside, and appellant was subsequently arrested. Only appellant’s belongings were found in the safe. After a hearing, the trial court denied the motion to suppress, finding the gun would have inevitably been discovered because probable cause existed to obtain a search warrant.

As a threshold matter, the trial court erred in denying the motion by relying on the inevitable discovery doctrine because the facts do not support its application. Specifically, the inevitable discovery doctrine may be employed to deem a search lawful if probable cause to obtain a warrant existed and officers are “in the process of obtaining a warrant” when the search occurs. In McDonnell v. State, 981 So.2d 585, 592-93 (Fla. 1st DCA 2008), this court recognized that the inevitable discovery doctrine will not be applied in every case where the police had probable cause for a search warrant; the focus is on whether officers made an effort to get a warrant prior to searching and whether strong probable cause existed for the warrant. “ ‘[T]o excuse the failure to obtain a warrant merely because the officers had probable cause and could have inevitably obtained a warrant would completely obviate the warrant requirement of the fourth amendment.’ ” U.S. v. Reilly, 224 F.3d 986, 995 (9th Cir.2000) (quoting U.S. v. Echegoyen, 799 F.2d 1271, 1280 n. 7 (9th Cir. 1986)). Here, the officer testified that he did not attempt to get a warrant, and the State presented no evidence suggesting that he did. Accordingly, the trial court could not rely on the doctrine to support its denial of the motion to suppress.

On appeal, the State does not address the inevitable discovery doctrine but asserts affirmance is the correct result for two reasons. First, the State asserts the wife had authority to consent to the search of the safe because it was common property between her and her spouse. “[W]hen the prosecution seeks to justify a warrantless search by proof of voluntary consent, it ... may show that permission to search was obtained from a third party who possessed common authority over or other sufficient relationship to the premises.” U.S. v. Matlock, 415 U.S. 164, 171, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974). However, common authority to consent does not, in and of itself, “permit search of any personal property contained within the premises.” Kelly v. State, 77 So.3d 818, 825 (Fla. 4th DCA 2012). “ ‘[T]here is no right on the part of a third party to consent to a search of personal property belonging to another person unless there is evidence of both common authority over and mutual usage of the property.’ ” Id. (quoting Marganet v. State, 927 So.2d 52, 57-58 (Fla. 5th DCA 2006)). This is so because “ ‘the right to consent rests not on the law of property but rests rather on mutual use of the property by persons generally having joint access or control for most purposes.’ ” Id. Further, a marital relationship, without something more, will not authorize a spouse to consent to a search of the absent spouse’s exclusively used, personal belongings. See Silva v. State, 344 So.2d 559, 561 (Fla.1977) (“Though the law in Florida concerning a spouse’s lack of authority to consent to a search of the couple’s premises is not without exceptions, it has generally been held that the husband and wife relationship, without more, does not authorize one spouse to waive the constitutional rights of the other by consenting to a warrantless search.”).

At the motion hearing, the wife testified that (1) the safe was given to her husband by his mother; (2) she did not have a key to the safe; (3) the safe housed her husband’s personal belongings; and (4) she did not have any of her personal belongings inside. As such, the wife did not have the actual authority to consent because she did not mutually use the safe. Marganet, 927 So.2d at 57-58.

Second, the State argues the officers had apparent authority to search the safe because it was found amidst the belongings of both spouses in their jointly owned bedroom and closet. However, “[l]aw enforcement may only rely on a person’s apparent authority to give consent if such consent is reasonable given the totality of the circumstances.” Brock v. State, 24 So.3d 703, 704 (Fla. 1st DCA 2009) (citing State v. Young, 974 So.2d 601, 609 (Fla. 1st DCA 2008)). If the basis for the asserted authority is not clear, the officer must conduct further inquiry before relying on the third party’s representations. Id. Here, prior to prying open the safe, the officer knew the wife did not have a key and that the safe contained appellant’s personal property. As such, it was incumbent upon him to conduct a further inquiry into the possession of the safe pri- or to forcing it open. For these reasons, we reverse the motion to suppress and remand for further proceedings consistent with this opinion.

We also reject the argument that exigent circumstances justified the war-rantless search. Once the officers had secured the safe, there was no reasonable probability that evidence would be destroyed or that the failure to conduct an immediate search would endanger persons or property.

REVERSED.

PADOVANO and MARSTILLER, JJ„ concur.