source: Caselaw Access Project

author: WETHERELL, J. PADOVANO, J., VAN NORTWICK, J., PADOVANO, J.,

license: Public Domain

text:
    MATRIX EMPLOYEE LEASING, INC. and First Commercial Claims Services, Appellants, v. Shawn HADLEY, Appellee.
    No. 1D09-3360.
    District Court of Appeal of Florida, First District.
    Nov. 29, 2011.
    Opinion on Rehearing and Certification Denied Jan. 6, 2012.

      David R. Drill of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, Bamdas, Es-kalyo & Dunbrack, P.A., Jacksonville, for Appellants.
    Bill McCabe, Longwood, and Erika L. Brenneman, Tallahassee, for Appellee.
   EN BANC

WETHERELL, J.

In this workers’ compensation case, the Employer and Carrier (E/C) appeal a final order awarding Shawn Hadley (Claimant) permanent total disability (PTD) benefits. The E/C argue that the Judge of Compensation Claims (JCC) erred in awarding PTD benefits because Claimant has not yet reached maximum medical improvement (MMI) and he did not prove that he would be permanently and totally disabled after reaching MMI. We agree with the E/C and conclude this case is controlled by our decision in City of Pensacola Firefighters v. Oswald, 710 So.2d 95 (Fla. 1st DCA 1998), and its progeny. Upon consideration of this case en banc, we decline to depart from that settled precedent. Accordingly, we reverse the order on appeal.

I. FACTUAL BACKGROUND

On January 18, 2007, Claimant injured his left knee and leg in a compensable accident. Claimant underwent a number of surgeries on the leg as a result of complications from the initial surgery. Claimant’s authorized treating physician, Dr. Farid Hakim, anticipates that Claimant will need additional surgeries, and he testified that Claimant is not yet at MMI. In May 2009, Claimant was placed on a no-work status pending the additional surgeries. Dr. Hakim was unable to provide a definitive opinion of Claimant’s disability status once he reaches MMI, although he did testify that Claimant will “most probably” be able to go back to at least light-duty work at some point in the future and that Claimant will “probably” have only a 10% to 15% impairment rating after MMI.

The E/C paid Claimant 104 consecutive weeks of temporary total disability (TTD) benefits, until January 18, 2009, when entitlement to such benefits terminated by statute. At that point, the E/C began paying Claimant impairment benefits. Claimant thereafter filed a petition for benefits seeking an award of PTD benefits from January 18, 2009, and continuing, because he remains in a total disability status per Dr. Hakim. The E/C denied the claim, asserting that Claimant must first reach MMI to make the issue of PTD ripe for adjudication because the Workers’ Compensation Law does not authorize the payment of pre-MMI “temporary PTD benefits.”

In the order on appeal, the JCC acknowledged that “case law holds that there is no creature in the workers^] compensation law known as ‘temporary permanent total disability,’ ” but the JCC nevertheless awarded Claimant PTD benefits based on his view that “the Legislature did not intend to leave a claimant such as Mr. Had-ley out in the cold with no basis for indemnity benefits when that worker is totally disabled for more than 104 weeks.” The JCC explained his decision as follows:

The indefiniteness in the medical testimony as to when he may reach physical MMI, what final degree of permanent impairment he may suffer, and when or if he may return to gainful employment leave[s] too much to chance. The concrete evidence before me is that the claimant has a permanent disability and is incapable of engaging in employment at the present time. I choose to take the words “permanent” and “total” out of the context of the medical testimony and the legal requirements to find that the claimant is currently “permanent total” and is entitled to indemnity benefits in that classification, plus the supplemental benefits attendant thereto. While there may be a change in condition in the future, the claimant presently meets the requirements of the law to establish entitlement to permanent total disability indemnity benefits.

This timely appeal followed.

II. ANALYSIS

JCCs are bound by the decisions of this court interpreting the Workers’ Compensation Law unless and until the decision is overruled by the Florida Supreme Court or this court recedes from the decision en banc. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992); Hoffman v. Jones, 280 So.2d 431, 433-34 (Fla.1973). Accordingly, a JCC lacks the authority to craft and apply a rule of law that directly contravenes this court’s settled precedent. That, however, is precisely what the JCC did in this case by awarding PTD benefits based on Claimant’s present disability status, rather than his status after reaching MMI as required by the statutes and case law discussed below. This was error.

Section 440.15, Florida Statutes, governs the payment of disability benefits to injured employees. Pertinent to this case, subsection (1) of the statute provides for the payment of PTD benefits to employees who have a “total disability adjudged to be permanent,” and subsection (2) provides for the payment of TTD benefits to employees whose disability is “total in character but temporary in quality.” § 440.15(1)-(2), Fla. Stat. (2006) (emphasis added). PTD benefits are expressly limited to “claimants with catastrophic injuries or claimants who are incapable of engaging in employment.” § 440.15(l)(b), Fla. Stat. (“In no other case may [PTD] be awarded.”). TTD benefits are payable for no more than 104 weeks, after which the employee’s permanent impairment rating must be determined. See § 440.15(2)(a), Fla. Stat. (“Once the employee reaches the maximum number of weeks allowed, ... [TTD] benefits shall cease and the injured worker’s permanent impairment shall be determined.”); § 440.15(3)(d), Fla. Stat. (“After the employee has been certified by a doctor as having reached [MMI] or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating....”). The permanent impairment rating is used to pay “impairment income benefits,” commencing on “the day after the employee reaches [MMI] or after the expiration of temporary benefits, whichever occurs earlier,” and continuing for a period determined by the employee’s percentage of impairment. See § 440.15(3)(g), Fla. Stat.

The statutory scheme in section 440.15 works seamlessly when the injured employee reaches MMI prior to the expiration of the 104 weeks of temporary disability benefits. But where, as here, the employee is not at MMI at the expiration of the 104 weeks, there is the potential for a “gap” in disability benefits because TTD benefits cease by operation of law after 104 weeks and entitlement to PTD benefits is generally not ripe until the employee reaches MMI. We recognized this “gap” in Oswald and attempted to ameliorate its impact as much as possible within the confines of the applicable statutory language.

Oswald reversed a final order awarding PTD benefits to an employee who was not yet at MMI and who failed to prove that he would be totally disabled upon reaching MMI. See 710 So.2d at 96. We began the opinion by noting that “[t]he predicate for total disability benefits is catastrophic injury, which by definition entails permanent impairment.” Id. Then, after recognizing the “venerable rule” that a claim for PTD benefits is premature if the injured employee has not yet reached MMI, id. at 97, we concluded that the 1994 amendments to chapter 440 “have given rise to a narrow but necessary exception” to this rule allowing an employee whose 104 weeks of temporary benefits are about to expire to establish entitlement to PTD benefits by-proving that he or she will be permanently and totally disabled after MMI. Id. at 97-98 (referring to statutory requirement now codified in section 440.15(3)(d) that the employee’s permanent impairment rating be assigned six weeks prior to expiration of temporary benefits). We held that, under this exception, “to be eligible for [PTD] benefits, an employee whose temporary benefits have run out — or are expected to do so imminently — must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be ‘existing after the date of [MMI].’ ” Id. at 98 (quoting definition of “permanent impairment” in section 440.02(19), Florida Statutes (1994 Supp.), which is now codified in section 440.02(22)).

Oswald squarely rejected the interpretation adopted by the JCC in this case and advocated by the dissent, ie., that a claimant’s entitlement to PTD benefits should be based on his or her condition at the end of the eligibility period for temporary benefits, rather than his or her condition at MMI. On this issue, Judge Padovano’s concurring opinion in Oswald, succinctly explained:

The remaining question is whether section 440.15(3)(a)4. [now section 440.15(3)(d) ] requires an evaluation of the impairment at the time of the medical examination (during the six-week period before the temporary benefits expire), or at the time the employee will subsequently reach [MMI]. As the court explains, the answer to this question is that the doctor must evaluate the injured employee to determine the prospective level of impairment when the employee is at [MMI]. The opinion will be subjective, but no more so than other kinds of projections we ask medical experts to make. In any event, the evaluation must be made prospectively to preserve the distinction between temporary and permanent benefits.
If we were to construe section 440.15(3)(a)4. [now section 440.15(3)(d) ] to mean that the doctor must determine the degree of impairment at the time of the medical examination, we would then subvert the two-year limit in section 440.15(2)(a) for the payment of temporary benefits. An injured worker may have a high impairment rating at the time of the examination, and yet have a low impairment rating subsequently, at the time of [MMI]. Arguably, one solution would be to award [PTD] benefits based on the current degree of impairment and then revisit the employee’s eligibility under section 440.15(l)(d) when the employee reaches [MMI]. The weakness in this approach is that it treats what may be a temporary disability as permanent and extends the payment of benefits beyond the two-year limit.

Id. at 101 (Padovano, J., concurring). This reasoning is as logical and persuasive today as it was 13 years ago.

We have consistently applied the rule of law announced in Oswald over the past 13 years, most recently in East v. CVS Phar macy, Inc., 51 So.3d 516 (Fla. 1st DCA 2010), and Crum v. Richmond, 46 So.3d 633 (Fla. 1st DCA 2010). In Crum, we reaffirmed that:

The test ... for PTD entitlement prior to the date of MMI is not, as the JCC appears to have concluded, whether a claimant is totally disabled upon the expiration of temporary disability benefit eligibility, and will have a permanent impairment after reaching MMI. The test is whether a claimant is totally disabled upon the expiration of temporary benefit eligibility, and will remain totally disabled after the date of MMI as that phrase is statutorily defined.

46 So.3d at 636. Accord East, 51 So.3d at 517 (“A claimant seeking PTD benefits before she reaches overall MMI must prove she has a present total disability and that said disability will exist after the date of MMI.”). The Legislature has not amended the applicable statutes in response to Oswald and its progeny, and we see no reason to recede from this settled precedent at this point, notwithstanding the policy issues raised by the JCC and the dissent.

As we stated in Crum, we recognize that the applicable statutes “may create a gap in disability benefits for those injured workers who are totally disabled upon the expiration of temporary disability benefits but fail to prove prospectively that total disability will exist after the date of MMI.” 46 So.3d at 637 n. 3. We are not persuaded, however, that the statutes are susceptible to the interpretation advocated by the dissent and we do not have the authority to rewrite the statutes to eliminate the potential “gap” in disability benefits; that remedy lies with the Legislature, not the courts. Id.; see also Thompson v. Fla. Indus. Comm’n, 224 So.2d 286, 287 (Fla.1969) (denying petition for writ of certiora-ri and explaining carrier was justified in ceasing payment of TTD benefits after 350 weeks, even though claimant had not reached MMI and was still totally disabled: “This statute is clear and unambiguous in its language. The Florida Workmen’s Compensation Act is inadequate in failing to provide for a situation such as this. However, the remedy lies with the Legislature and not with ... the Court.”).

In this ease, Claimant is not yet at MMI and he failed to establish that he will be permanently and totally disabled once he reaches MMI. Indeed, his treating physician testified that Claimant will likely be able to return to at least light-duty work after the required additional surgeries are completed. Accordingly, based on Oswald and its progeny, Claimant failed to prove his entitlement to PTD benefits and the JCC should have denied the claim for such benefits.

III. CONCLUSION

In sum, for the reasons stated above, the JCC erred in awarding PTD benefits to Claimant. Accordingly, we reverse the final order.

REVERSED.

BENTON, C.J., WOLF, LEWIS, HAWKES, THOMAS, ROBERTS, ROWE, and RAY, JJ., concur.

PADOVANO, J., dissents in an opinion with which DAVIS, VAN NORTWICK, CLARK, MARSTILLER, and SWANSON, JJ., concur.

VAN NORTWICK, J., dissents in an opinion with which DAVIS, CLARK, and SWANSON, JJ., concur.

PADOVANO, J.,

dissenting.

I believe that we interpreted the Workers’ Compensation Law incorrectly in Oswald and that we should now recede from the rule we adopted in that case. Nothing in the text of the applicable statutes suggests that there is a gap in which some totally disabled workers will be ineligible to apply for disability benefits. Moreover, the notion that there can be a period of time during which a disabled worker is not entitled to be compensated for his or her workplace injury is contrary to the most basic purpose of the Workers’ Compensation Law. For these reasons, I respectfully dissent.

The claimant in the Oswald case was nearing the end of his eligibility for temporary benefits but he had not yet reached maximum medical improvement. We held that “an employee whose temporary benefits have run out — or are expected to do so imminently — must be able to show not only total disability upon the cessation of temporary benefits but also that total disability will be existing after the date of maximum medical improvement.” 710 So.2d at 98. Because the claimant was not able to show that he would be totally disabled after the point in the future when he would reach maximum medical improvement, we held that he was not yet entitled to assert his claim.

The court stated in Oswald that it was creating a “narrow but necessary exception” to the longstanding rule that permanent total disability benefits are not awardable before the claimant has reached maximum medical improvement. Id. at 96-98. The point of the exception was to avoid “a gap in benefits” for severely injured workers. Id. at 101 (Padovano, J., concurring). However, in crafting this exception, the court departed from the plain language of the statute.

The statute places a fixed time limit on eligibility for temporary disability benefits but it does not suggest that a disabled worker who has reached that limit is no longer entitled to any further disability benefits. Nor does the statute state or imply that a disabled but still improving worker must prove that the disability will continue to exist at some unspecified point in the future when a doctor is willing to say that the worker will have reached maximum medical improvement. The “narrow exception” the court made with these assumptions is not supported by the text of the Workers’ Compensation Law.

By the plain language of the applicable statutes, an injured worker who is still totally disabled at the end of his or her eligibility for temporary disability benefits is deemed to be at maximum medical improvement as a matter of law, even if the worker may get well enough someday to return to work. In these circumstances, the claimant need not present medical proof that he or she has reached maximum medical improvement. The worker may immediately assert a claim for permanent total disability benefits, and the judge may award those benefits if the worker has proven that he or she is in fact totally disabled.

Section 440.15(2)(a) of the Workers’ Compensation Law provides that an injured worker who is totally disabled is eligible for temporary total disability benefits for a period of time not to exceed 104 weeks. The disabled worker must be evaluated by a doctor six weeks before the expiration of the 104-week period of eligibility, and the doctor must assign an impairment rating. The evaluation is required by section 440.15(3)(d), which states,

After the employee has been certified by a doctor as having reached maximum medical improvement or 6 weeks before the expiration of temporary benefits, whichever occurs earlier, the certifying doctor shall evaluate the condition of the employee and assign an impairment rating, using the impairment schedule referred to in paragraph (b).

§ 440.15(3)(d), Fla. Stat. (2006) (emphasis added). The use of the word “shall” in this statute makes mandatory both the duty to evaluate the worker and the duty to assign an impairment rating. If the injured worker is receiving temporary total disability benefits but has not yet reached maximum medical improvement, the evaluation must be completed, and the impairment rating must be assigned.

Section 440.15(3)(d) employs the term “impairment rating,” but this is merely a shorthand reference to a “permanent impairment rating.” This section is contained within section 440.15(3), which deals exclusively with compensation for permanent impairments. Moreover, when this statute is read in conjunction with other statutes to which it relates, the term “impairment rating” can only mean a “permanent impairment rating.” Section 440.15(2)(a), the subsection that sets the 104-week limit on eligibility for temporary total disability benefits, states in material part:

Once the employee reaches the maximum number of weeks allowed, or the employee reaches the date of maximum medical improvement, whichever occurs earlier, temporary disability benefits shall cease and the injured worker’s permanent impairment shall be determined.

§ 440.15(2)(a), Fla. Stat. (emphasis added).

The use of the term “permanent impairment” signifies that the disabled worker has attained maximum medical improvement. Section 440.02(22), Florida Statutes (2006) defines “permanent impairment” as “any anatomic or functional abnormality or loss determined as a percentage of the body as a whole, existing after the date of maximum medical improvement, which results from the injury” (emphasis added). It follows that the permanent impairment rating required by section 440.15(3)(d) is the equivalent of a medical finding that the disabled worker has reached maximum medical improvement.

This conclusion is supported by two more detailed provisions, subsections 440.15(3)(d)l. and 2., pertaining to the nature and content of the report the doctor is required to make six weeks before the expiration of temporary disability benefits. These subsections provide:

1. The certifying doctor shall issue a written report to the employee and the carrier certifying that maximum medical improvement has been reached, stating the impairment rating to the body as a whole, and providing any other information required by the department by rule. The carrier shall establish an overall maximum medical improvement date and permanent impairment rating, based upon all such reports.
2. Within 14 days after the carrier’s knowledge of each maximum medical improvement date and impairment rating to the body as a whole upon which the carrier is paying benefits, the carrier shall report such maximum medical improvement date and, when determined, the overall maximum medical improvement date and associated impairment rating to the department in a format as set forth in department rule. If the employee has not been certified as having reached maximum medical improvement before the expiration of 98 weeks after the date temporary disability benefits begin to accrue, the carrier shall notify the treating doctor of the requirements of this section.

§ 440.15(3)(d), Fla. Stat. (2006). In these two subsections of the statute, the Legislature is plainly equating a medical finding of maximum medical improvement with the status that exists by law if the employee has not reached maximum medical improvement six weeks before the expiration of temporary benefits.

When these statutes are read together, as they should be, it is clear that an in- ■ jured worker who is still totally disabled at the end of the maximum period of eligibility for temporary total disability benefits is deemed to be at maximum medical improvement, regardless of any potential for improvement. The doctor is required by section 440.15(3)(d) to assess and certify the injured worker’s “permanent impairment,” a condition that can have but one meaning under section 440.03(22): a condition existing “after the date of maximum medical improvement.” It follows that the permanent impairment rating that must be given at that time is the legal equivalent of a medical finding that the worker has reached maximum medical improvement.

We need not apply canons of statutory interpretation to arrive at this conclusion. All that is required is basic deductive reasoning. If a worker must get a permanent impairment rating before the expiration of temporary benefits, and if a permanent impairment rating can only exist after the worker has reached maximum medical improvement, there can be no other conclusion to draw but that the rating is equivalent to a finding that the worker has achieved maximum medical improvement. We could avoid this conclusion only if we were to assume that the Legislature meant to create a form of statutory maximum medical improvement for impairment benefits while retaining the requirement of medical evidence for the purpose of obtaining disability benefits. However, we would have to read a great deal into the statute to make a distinction such as this.

A close reading of the briefs in this case reveals that the parties do not dispute the fact that maximum medical improvement can exist as a matter of law upon the expiration of temporary disability benefits. Workers’ compensation lawyers and judges commonly refer to this status as “statutory MMI.” More specifically, the dispute in this case focuses on the question of whether a claimant’s having reached statutory MMI is enough to make a claim for permanent total disability ripe for adjudication. The employer contends that it is not. In the initial brief filed on behalf of the employer, counsel argues that an injured worker must present medical evidence that he or she has reached maximum medical improvement, a concept he refers to as “physical MMI.”

The employer’s argument on this point must fail, because there is nothing in the Workers’ Compensation Law that distinguishes between “statutory MMI” and “physical MMI.” Neither phrase is used in the statute. Although the concept of statutory MMI advanced by the claimant arises as a matter of law, whereas the concept of “physical MMI” advanced by the employer arises from the evidence, we have no reason to conclude that the effect is any different. Nothing in the Workers’ Compensation Law suggests that, if a worker is deemed to be at maximum medical improvement based on the operation of the disability and impairment statutes, the status of that worker is somehow different from that of a worker who can prove by evidence that he or she is at maximum medical improvement. In both situations, the claimant is eligible to file a claim for permanent total disability benefits.

This interpretation of the Workers’ Compensation Law does not blur the distinction between temporary and permanent disability benefits, as the majority has concluded. It is true that the Legislature placed a fixed time limit on the right to recover temporary disability benefits, but the purpose of this time limit was not to create a gap in which a totally disabled but still improving worker will be uncompensated. To the contrary, it is clear from the overall statutory scheme that the time limit was designed as a deadline, to force the parties to make a relatively prompt decision about the need for permanent total disability benefits.

The conclusion that disability benefits are available throughout the course of a worker’s disability is not only supported by the text of the applicable statutes, it is also consistent with the intent of the Legislature as expressed in the Workers’ Compensation Law. Section 440.015, Florida Statutes (2006) states, “It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker.” We can assume from this statement that the Legislature meant to require the continuous payment of disability benefits for an injured worker who continues to be disabled and that the 104-week limit on temporary disability benefits does not effectively terminate the injured worker’s right to just compensation.

In contrast, the majority’s interpretation would create an arbitrary deadline that would effectively deny an injured worker just compensation. If the majority is correct, there could be a gap for an indefinite period of time, during which an injured worker is not compensated at all, even though there is no dispute that the worker is totally disabled. A disabled worker who has exhausted the 104 weeks of temporary benefits but who has still not fully recovered from the workplace injury might have to wait months or perhaps years before disability benefits would resume, even though the employee remains totally disabled all the while. By accepting this result, the majority has effectively concluded that a law designed to provide compensation to injured workers actually denies compensation to some injured workers. In effect, the majority has de-. cided that the law does not provide benefits, much less the “prompt delivery of benefits,” to injured workers like the claimant in this case.

The interpretation advanced by the majority would also promote a disparity in the way that disabled workers are treated. And the workers who are the most likely to be caught in the gap that would exist under the majority’s interpretation are those who have been seriously injured. A disabled worker who reaches maximum medical improvement relatively quickly is fully compensated. But a disabled worker who is told that he or she may be well enough to return to work someday may have no compensation at all beyond the initial 104-week period. I do not think that the Legislature intended to create such a disparity. It is reasonable to conclude that the Legislature meant to ensure the “prompt delivery of benefits” to all workers who are injured on the job, not just some of them. See, e.g., Gauthier v. Fla. Int’l Univ., 38 So.3d 221, 224 (Fla. 1st DCA 2010).

The conclusion that a disabled worker is entitled to receive disability benefits continuously throughout the course of his or her disability is consistent not only with the stated intent of the law but also with the overall statutory scheme. Section 440.15(l)(d) enables an employer to discontinue the payment of disability benefits to a worker who has regained earning capacity through rehabilitation. Thus, the status of maximum medical improvement is not truly permanent. When an employee is deemed to be at maximum medical improvement by operation of law, the employer is not stuck with that determination forever. The worker’s status and eligibility for benefits can change with the circumstances.

On the other hand, an interpretation that would create a potential gap in disability benefits could result in an uncorrectable error. As an illustration, we need only consider the situation that will exist in the present case if it turns out that the surgeon was overly optimistic about the claimant’s prospect of recovery. If there is no change in the claimant’s medical condition by the time the surgeon is willing to say that the claimant has reached maximum medical improvement, the logical inference would be that the claimant was, in fact, at maximum medical improvement much earlier. Yet there is nothing in the law that would enable the claimant to recover the disability benefits he should have been receiving in the meantime. It is reasonable to conclude that, if the Legislature had intended to create a gap in the payment of disability benefits, it would have at least provided a remedy for the recovery of lost benefits if it could be shown later that the claimant was actually at maximum medical improvement all along and should have been receiving those benefits.

The majority has pointed out that the Oswald decision has been cited in this court a number of times. That is true, but these cases do not serve to strengthen the precedent. If anything, they reveal that the rule in Oswald has not worked out as intended. It is clear now that the exception the court was attempting to create to ensure the continuous flow of disability benefits for those who are truly disabled is very rarely applied. Instead, the rule in Oswald has been used almost exclusively as authority to deny benefits. The Workers’ Compensation Law was designed to provide injured workers just compensation for their injuries at reasonable cost to their employers. See § 440.015, Fla. Stat. Yet, by this court’s interpretation of the law in Oswald, it has become an impediment to the recovery of just compensation for a distinct class of severely injured workers.

We are not here to make policy, and I certainly do not suggest that we should interpret a statute based on the wisdom or fairness of the outcome. But if we have repeatedly interpreted a statute in such a way as to produce a result that is patently unjust, it seems to me that we should study the statute again to be sure that we are reading it correctly. Since Oswald, the court has essentially held that an employer has authority of the Workers’ Compensation Law to deny disability benefits to an injured worker who has exhausted his or her temporary benefits so long as the employer can prove that the worker may improve enough to return to work at some point in the future. With due respect for my colleagues, I do not believe we are required to reach such an unjust result in order to protect the integrity of the time limit on eligibility for temporary benefits.

The majority cites Thompson v. Florida Industrial Commission, 224 So.2d 286 (Fla.1969) in support of its holding, but that decision does not compel adherence to Oswald. The 1961 statute the court was interpreting in Thompson had a limit of 350 weeks on temporary total disability benefits and it had no provision for statutory maximum medical improvement. When the Legislature reduced eligibility for temporary total disability benefits from five years to two years, it put in place for the first time a provision for statutory maximum medical improvement. If the statute the court was interpreting in Thompson had a provision like this for statutory maximum medical improvement, the stated obstacle to the recovery of permanent disability benefits would have been removed.

For these reasons, I would recede from our decision in Oswald and subsequent cases holding that there is a gap in benefits and I would affirm the order awarding the claimant permanent total disability benefits. The claimant reached maximum medical improvement as a matter of law, and the evidence demonstrates that he is totally and permanently disabled.

VAN NORTWICK, J.,

dissenting.

I join in Judge Padovano’s dissent because I believe that it more correctly interprets the applicable provisions of the Workers’ Compensation Act. I write separately to express my opinion that both the approach adopted in Oswald (and reaffirmed by the majority opinion) and the approach expressed in the dissent are judicial “patches” crafted to attempt to avoid a material “gap” in disability benefits for injured workers who remain totally disabled on the expiration of temporary disability benefits. In my view, our concern with this potential “gap” is not simply a humanitarian concern for particular claimants, but is based on our interest in avoiding a potential constitutional issue. The problematic nature of the cutoff of these benefits has long been recognized by Florida courts. For example, as noted by the majority, in Thompson v. Florida Industrial Commission, 224 So.2d 286, 287 (Fla. 1969), the court recognized that in ceasing payment of temporary total disability benefits after 350 weeks even though claimant was still totally disabled, “[t]he Florida Workmen’s Compensation Law is inadequate in failing to provide for a situation such as this.” Under the current statute, temporary total disability benefits have been reduced to 104 weeks, section 440.15(2)(a), Florida Statutes (2006), 246 weeks less than the 350 weeks of benefits in Thompson.

Under article I, section 21 of the Declaration of Rights in the Constitution of the State of Florida: “The courts shall be open to every person for redress of any injury....” As Judge Altenbernd has explained, one function of this provision “is to protect the substantive rights of the people through judicial checks on the power of the legislature.” Shova v. Eller, 606 So.2d 400, 409 (Fla. 2d DCA 1992) (Altenbernd, J., dissenting), quashed, Eller v. Shova, 680 So.2d 537 (Fla.1993). The Florida Supreme Court has set forth the limits imposed on the legislature by article I, section 21:

[Wjhere a right of access to the courts for redress for a particular injury has been provided by statutory law predating the adoption of the Declaration of Rights of the Constitution of the State of Florida, or where such right has become a part of the common law of the State pursuant to Fla. Stat. s. 2.01, F.S.A., the Legislature is without power to abolish such a right without providing a reasonable alternative to protect the rights of the people of the State to redress for injuries, unless the Legislature can show an overpowering public necessity for the abolishment of such right, and no alternative method of meeting such public necessity can be shown.

Kluger v. White, 281 So.2d 1, 4 (Fla.1973). In analyzing whether the right of access to the courts has been abolished by a particular change in the Workers’ Compensation Law, under the test in Kluger Florida courts must determine (1) whether the amendment to the act abolished a preexisting right of access; (2) if so, whether a reasonable alternative exists to protect the preexisting right of access; and (3) if no such reasonable alternative exists, whether an overwhelming public necessity exists for the amendment to the act. Eller, 630 So.2d at 542.

Florida courts have recognized that the Workers’ Compensation Law serves as a reasonable alternative to tort law. See, e.g., Martinez v. Scanlan, 582 So.2d 1167, 1171-72 (Fla.1991) (stating that “the workers’ compensation law remains a reasonable alternative to tort litigation [because] [i]t continues to provide injured workers with full medical care and wage-loss payments for total or partial disability regardless of fault and without the delay and uncertainty of tort litigation”). Generally, unless the amended statute in question has effectively eliminated a claimant’s cause of action, the amendment does not violate article I, section 21. See John v. GDG Servs., Inc., 424 So.2d 114, 116 (Fla. 1st DCA 1982) (upholding against an access to courts challenge an amendment to section 440.15(3)(b), concerning permanent impairment benefits, this court reasoned: “Although we note the benefits under the new wage-loss provisions may result in reduced benefits, the right to recover for industrial injuries- has not been so reduced as to be effectively eliminated.”) (emphasis added), decision approved, 440 So.2d 1286 (Fla.1983). Judge Webster has recently warned about potential constitutional concerns in the context of the apportionment of benefits under section 440.15(5)(b):

If, as I think will likely be the case, a significant number of injured workers receive significantly reduced benefits because of section 440.15(5)(b), the courts might well conclude that because the right to benefits has become largely illusory, Florida’s Workers’ Compensation Law is no longer a reasonable alternative to eommon-law remedies and that, accordingly, workers have been denied meaningful access to courts in violation of article I, section 21, of our constitution.

Staffmark v. Merrell, 43 So.3d 792, 798 (Fla. 1st DCA 2010) (Webster, J., concurring) (citations omitted). Similarly, in the case of a totally disabled claimant whose rights to temporary disability benefits has expired, but who is prohibited from receiving permanent disability benefits, the elimination of disability benefits may reach a point where the claimant’s cause of action has been effectively eliminated. In such a case, the courts might well find that the benefits under the Workers’ Compensation Law are no longer a reasonable alternative to a tort remedy and that, as a result, workers have been denied access to courts.

For the reasons explained by Judge Pa-dovano, the Oswald patch leaves many totally disabled claimants stuck in this gap without the benefits. I urge the legislature to address this inadequacy under the Workers’ Compensation Law.

BY ORDER OF THE COURT.

Appellee’s Motion for Rehearing and Motion for Certification of Question as One of Great Public Importance, filed December 9, 2011, is denied.

BENTON, C.J., and WOLF, LEWIS, THOMAS, ROBERTS, WETHERELL, ROWE, RAY, and SWANSON, JJ., concur.

PADOVANO, DAVIS, VAN NORTWICK, CLARK, and MARSTILLER, JJ., concur in denial of rehearing and dissent from denial of certification of a question of great public importance.

DAVIS, VAN NORTWICK, and CLARK, JJ., join in the dissenting opinion of PADOVANO, J.

PADOVANO, J.,

dissenting.

After the release of the en banc opinions in this case, the claimant filed a timely motion for certification under rule 9.330(a) of the Florida Rules of Appellate Procedure and Article V, section 3(b)(4) of the Florida Constitution. The employer did not oppose the motion. Although I think it is quite clear from the opinions on the merits of the case that the court has passed upon a question of great public importance, the court has denied the motion for certification. I take issue with this ruling. With due respect for my colleagues in the majority, the motion should have been granted.

There can be no doubt that the legal issue decided by the court was an important issue. It is apparent from the decision itself that the controversy relating to the proper interpretation of the applicable statutes was important enough to require the attention of all fifteen judges of this court. Moreover, the case was considered by this court en banc, because a substantial number of judges believed that the court had committed a serious error that effectively foreclosed the possibility of just compensation for many injured workers.

Nor can there be any doubt that the issue is one of public importance. The en banc decision affects not only the rights of the immediate parties, but also the rights of all similarly situated workers. As a consequence of the court’s prior decision, now endorsed by the en banc decision in this case, hundreds, perhaps thousands of disabled workers will be denied compensation for their workplace injuries. If this court has made a mistake — and even the majority must admit that is possible — the court should welcome the prospect of a correction. I do not know whether the supreme court would agree with the majority or the dissent on the merits of the case, but I do know that the decision this court has made is one that will have an impact on a large number of workers in Florida, It is precisely the kind of issue that should be certified to the supreme court for discretionary review under Article V, section 3(b).

Perhaps this court would have been justified in denying certification of the legal question presented in this case if the court had provided a definitive answer to the question. But that is not the case. If nothing else, the sharp division between the judges illustrates that there might be more than one way to interpret the applicable statutes. The majority chose an interpretation that opens the Florida Workers’ Compensation Law to a serious constitutional challenge. Because the decision will no doubt spark a new wave of litigation, I do not think we can say that the court has resolved the underlying legal question. To the contrary, the decision marks the beginning of a more specific discussion about the adequacy of the statutory remedies as defined by the court. In my view, the uncertainty that exists now with respect to the rights of disabled workers creates a compelling need for supreme court review.

I recognize that the district courts of appeal are courts of final appellate jurisdiction and that subsequent review by the Florida Supreme Court is available only in limited circumstances. See Ansin v. Thurston, 101 So.2d 808 (Fla.1958). However, there are some issues that require the attention of the supreme court and I think that the issue raised here is plainly one of them. Even if there were some doubt about the importance of the issue or the impact it will have on the public, I fail to see the harm in granting the motion for certification.

All that certification would do is give the supreme court an opportunity to decide whether it should review the case. Because this kind of review is discretionary, the supreme court could simply decline to hear the case if it believed that the issue in this case was not important enough. However, by denying the motion for certification, this court has made that decision for the supreme court. The effect of the order denying the motion for certification is to foreclose the possibility of further review in this case.

This court should be particularly open to the possibility of certifying questions of great public importance in workers’ compensation cases, because there are very few other circumstances in which discretionary review is available in these cases. By a special grant of jurisdiction, the First District Court of Appeal hears all of the workers’ compensation appeals in Florida, regardless of the location of the lower tribunal. Consequently, there will never be a workers’ compensation appeal in which this court could certify conflict, and there will be very few cases in which the supreme court could review a decision of this court on the ground of express and direct conflict. Given the extremely limited opportunity for discretionary review, this court should be especially vigilant about the need to certify important workers’ compensation issues to the supreme court. We should fulfill our gatekeeping role by eliminating those issues that fail to meet the test of public importance, not by foreclosing review of our own decisions on important questions.

For these reasons, I would grant the motion for certification and give the Florida Supreme Court an opportunity to decide whether it should review the case.

      . We considered this case en banc pursuant to section 6.3 of the court's Internal Operating Procedures which requires an en banc vote "[w]hen the majority of a panel decides to recede from a prior opinion of this court.”

      . The issue presented in this appeal is one of statutory interpretation and the application of the proper rule of law. Thus, our standard of review is de novo. See, e.g., Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004); Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002).

      . All statutory references are to the 2006 version of the Workers' Compensation Law in effect at the time of Claimant's accident. See Southern Bakeries v. Cooper, 659 So.2d 339, 340 (Fla. 1st DCA 1995).

      . "Permanent impairment" is defined as "any anatomic or functional abnormality or loss determined as a percentage of the body as whole, existing after the date of maximum medical improvement, which results from an injury.” § 440.02(22), Fla. Stat. (emphasis added).

      . See, e.g., Fla. Transp.1982, Inc. v. Quintana, 1 So.3d 388 (Fla. 1st DCA 2009); Olmo v. Rehabcare Stamted/SRS, 930 So.2d at 789 (Fla. 1st DCA 2006); Rivendell of Ft. Walton v. Petway, 833 So.2d 292 (Fla. 1st DCA 2002); Metro. Title & Guar. Co. v. Muniz, 806 So.2d 637 (Fla. 1st DCA 2002); McDevitt St. Bovis v. Rogers, 770 So.2d 180 (Fla. 1st DCA 2000); Chan's Surfside Saloon v. Provost, 764 So.2d 700 (Fla. 1st DCA 2000); Daws Mfg. Co. v. Ostoyic, 756 So.2d 175 (Fla. 1st DCA 2000); Office Depot, Inc. v. Sweikata, 737 So.2d 1189 (Fla. 1st DCA 1999); Perdue Farms v. Sheets, 718 So.2d 361 (Fla. 1st DCA 1998); Advanced Employment Concepts v. Resmondo, 718 So.2d 215 (Fla. 1st DCA 1998); Interim Pers. v. Hollis, 715 So.2d 355 (Fla. 1st DCA 1998).

      . The statutory interpretation advocated by the dissent would eliminate the "gap” by equating the expiration of the eligibility for temporary benefits with the date of MMI, as that phrase is used in the definition of "permanent impairment.” The main problem with this interpretation is that "date of maximum medical improvement” is statutorily-defined as the date after which the employee is not reasonably anticipated to have further medical recovery or improvement from the injury, see § 440.02(10), Fla. Stat., whereas the date temporary benefits cease by operation of law has nothing to do with the employee’s ultimate medical condition or prognosis. Additionally, the dissent's interpretation would have the effect of authorizing a class of pre-MMI disability benefits — whether characterized as "temporary PTD” or "continuing/extended TTD” — that are not authorized by statute and that have been previously disavowed by this court. See Quintana, 1 So.3d at 390-91 (reversing pre-MMI award of " 'temporary' PTD benefits” and distinguishing cases authorizing "temporary” award of PTD benefits based on the claimant’s post-MMI status); and cf. Oswald, 710 So.2d at 101 (Padovano, J., concurring) (explaining that pre-MMI award of PTD benefits based on the claimant's condition at the expiration of the 2-year period for temporary benefits would subvert the statutory limit on temporary benefits).

      . Having served on the panel in Oswald, unlike any of the judges who have joined in this dissent, I alone accept responsibility for the error.

      . The two-year limit on temporary disability benefits was enacted as a part of the Workers’ Compensation Law in 1993. See § 440.15(2)(a), Fla. Stat. (Supp. 1994). Before that, the time limit on temporary disability benefits was five years. See § 440.15(2)(a), Fla. Stat. (1993).

      . In Eller, the Florida Supreme Court expressly agreed with Judge Altenbernd’s dissent. Eller v. Shova, 630 So.2d 537, 542 (Fla.1993).


author: RAMIREZ, J.

text:
    SR ACQUISITIONS—FLORIDA CITY, LLC, Petitioner, v. SAN REMO HOMES AT FLORIDA CITY, LLC, Respondent.
    No. 3D11-2393.
    District Court of Appeal of Florida, Third Distl’ict.
    Nov. 30, 2011.

      Shutts & Bowen LLP and Steven M. Ebner and Stephen T. Maher, Miami and Jacqueline B. Savir, for petitioner.
    Concepcion Martinez & Bellido, Carlos Concepcion, Coral Gables, and Scott A Burr, for respondent; Jorge E. Otero, Coral Gables, for non party Dinuro Investments, LLC.
    Before RAMIREZ, CORTIÑAS and FERNANDEZ, JJ.
   RAMIREZ, J.

SR Acquisitions — Florida, LLC petitions for mandamus, requesting this Court direct the trial court to enter an order setting a foreclosure sale and deny any further requests for postponements of the date. We grant the petition in part, and direct that the trial court: 1) rule on the pending motion for relief from the order setting a foreclosure sale date; and 2) rule on the motion to vacate default judgment against San Remo Homes at Florida City, LLC.

This is a dispute over sale of property that was owned, and mortgaged, by the respondent, San Remo Homes at Florida City, LLC. San Remo, which is owned by three members, owned real property in Miami-Dade County, upon which it intended to construct and sell homes. The property was not developed, and making payments on the property’s mortgage soon became difficult. Two of the members, Merici and Starmac, infused capital on multiple occasions to keep the mortgage current and avoid default. The third member, Dinuro Investments, LLC, did not make additional capital payments.

Merici and Starmac determined to restructure the debt and arrange for another entity, SR Acquisitions, to take over the property. Dinuro was offered, but did not accept, the opportunity to participate in SR Acquisitions. Merici and Starmac, who had established SR Acquisitions, used that entity to buy the loan from the bank. Merici and Starmac, as members of San Remo, also caused San Remo to default on the mortgage. After the default, SR Acquisitions sued for foreclosure of the loan. San Remo did not defend the resulting foreclosure action, because according to the majority members there were no meritorious defenses.

Because San Remo did not defend the lawsuit, a judgment of foreclosure resulted. Dinuro contends SR Acquisitions and its principals violated fiduciary duties and other legal requirements and essentially froze Dinuro out of San Remo and Dinu-ro’s interest in the property. Dinuro contends the establishment of SR Acquisitions, SR Acquisitions’ actions, and SR Acquisitions’ objective, demonstrate the entire transaction is illegitimate and cannot go forward.

Dinuro filed a separate suit for breaches of legal duties, and in this suit, Dinuro attempted to file a derivative answer on behalf of San Remo, asserted counterclaims against its partners, and alleged claims against the bank and the principals of Merici and Starmac. In addition, Dinu-ro filed, but later withdrew, a motion to intervene in this suit. Lastly, and most relevant to the pending petition, Dinuro moved the trial court for an order vacating the foreclosure judgment and canceling the foreclosure sale. The trial judge refused to halt the foreclosure sale. This case was subsequently transferred to another trial judge.

After transfer of the case, Dinuro moved for reconsideration of the predecessor judge’s entry of final judgment against San Remo. In connection with reconsideration of the judgment, the foreclosure sale was postponed and reset for a specific later date. On the eve of the second rescheduled foreclosure sale, Dinuro again moved to vacate the foreclosure judgment and cancel the foreclosure sale. Dinuro still had not intervened in the case. The new trial judge agreed to postpone the foreclosure sale, pending a ruling on Dinu-ro’s motion for relief from the judgment entered against San Remo. At present, there is no date certain set for the foreclosure sale, which has been postponed twice.

As a result of these procedural maneuvers, although San Remo is the respondent in this case, the party against whom relief will lie, if SR Acquisitions prevails, is Dinuro. Dinuro is not party to this case, and has no pending motion to intervene in this case. Thus, at present the current trial judge has postponed the sale indefinitely pending its ruling on Dinuro’s new motion regarding the foreclosure judgment.

“It is well settled that mandamus will lie where the petitioner has a clear legal right to the performance of the particular duty sought and that he has no other legal method for obtaining relief.” Caldwell v. Estate of McDowell, 507 So.2d 607, 608 (Fla,1987). Thus, “[mjandamus is the proper remedy to compel a court to exercise its discretion and decide a cause, where there is no valid reason to reserve ruling on the matter.” Mason v. Cir. Ct., Fifth Judicial Cir., 603 So.2d 94, 95 (Fla. 5th DCA 1992); see also Smith v. Lambdin, 971 So.2d 209, 210 (Fla. 4th DCA 2007). This Court’s jurisdiction includes issuance of writs of mandamus. Art. V, § 4(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(3). A writ of mandamus from this Court directs the trial court to take action, but does not decide the merits. See Moody v. Moody, 705 So.2d 708, 708 (Fla. 1st DCA 1998).

A trial court has broad discretion to manage its docket, but must do so within the confines of governing statutes and rules of procedure. See Phoenix Holding, LLC v. Martinez, 27 So.3d 791, 793 (Fla. 3d DCA 2010); Rolle v. Birken, 994 So.2d 1129, 1130 (Fla. 3d. DCA 2008) (granting mandamus to ensure compliance with the requirements of the Florida Rules of Civil Procedure as to the setting of a trial date); accord Flagship Nat’l Bank of Miami v. Testa,, 429 So.2d 69, 70 (Fla. 3d DCA 1983) (granting mandamus to require the trial judge to enter judgment after a non-jury trial to which the parties had agreed); see also Republic Fed. Bank, N.A. v. Doyle, 19 So.3d 1053, 1054 (Fla. 3d DCA 2009). Under Florida Rule of Civil Procedure 1.540, only parties or their representatives have standing to seek relief from judgment. See Fla. R. Civ. P. 1.540(b) (providing that the court may relieve “a party, or a party’s legal representative ” from a judgment, decree, or order) (emphasis added). A non party with no interest in the case cannot challenge a judgment. See Salomon v. Taylor, 50 Fla. 608, 30 So. 48 (Fla.1905); Jaffer v. Miami Beach Redev. Agency, 392 So.2d 1305 (Fla.1980) (denying appellate relief to a non party). Although parties are not automatically entitled to entry of a stipulated judgment, if a trial court delays ruling upon a party’s request for entry of a stipulated judgment, mandamus can be used to direct the trial court to rule on the request. See Fla. R. Civ. P. 1.500(b) (providing that the court may enter default judgment against a party who fails to plead or defend an action); Quintana v. Barad, 528 So.2d 1300, 1301 (Fla. 3d DCA 1988).

In this case, SR Acquisitions is entitled to mandamus because it has a clear legal right to have the trial court rule on the pending motion, and no other relief can address a non party’s improper interference with the case’s progress. By withholding its ruling, the trial court has allowed a non party, Dinuro, to stall the sale, even though Dinuro has no direct interest in the case and no standing upon which to seek relief from judgment. Dinuro is neither one of the parties to the case, since only SR Acquisitions and San Remo are parties, nor a party’s representative, as Dinuro was outvoted by its co-members and cannot act on behalf of San Remo.

Consequently, we direct the trial court to rule on the motion to vacate the foreclosure judgment, and the concomitant issue of when any sale is to occur, as there is no legal basis upon which the trial court has withheld ruling.

Mandamus granted.

      . Under Florida law, unless the agreement provides otherwise, a majority of the managers can vote for the LLC to take action. See § 608.422(2)(b), 4(b), Fla. Stat. (2010). Dinu-ro concedes it was outvoted as to the decision that led to foreclosure.


author: PER CURIAM.

text:
    Christopher Michael FILLINGIM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-727.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2011.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, CLARK, and WETHERELL, JJ., concur.


text:
    Bideau JEAN, Appellant, v. MIAMI JEWISH HOME and Hospital/United Self Insured Services, Appellees.
    No. 1D11-4309.
    District Court of Appeal of Florida, First District.
    Dec. 9, 2011.
    Rehearing Denied Feb. 6, 2012.
    Bideau Jean, pro se, Appellant.
    Salvatore J. Sicuso, Coral Gables, for Appellees.
   PER CURIAM.

Upon review of Appellant’s response to this court’s October 24, 2011, order to show cause, we dismiss this appeal for lack of jurisdiction. See § 440.25(5)(a), Fla. Stat. (1997) (providing that JCC orders “shall become final 30 days after mailing of copies of such order to the parties” unless timely appealed); Fla. R.App. P. 9.180(b)(3) (providing this court’s jurisdiction is invoked if notice of appeal is filed within thirty days of rendition of order to be reviewed). See also, e.g., Metellus v. State, 900 So.2d 491, 495 (Fla.2005) (noting jurisdictional rule cannot be altered by court or by agreement of parties); Metro. Dade County v. Vasquez, 659 So.2d 355, 356 (Fla. 1st DCA 1995) (dismissing untimely appeal for lack of jurisdiction).

DISMISSED.

VAN NORTWICK, THOMAS and RAY, JJ., concur.


text:
    Mark Anthony CLEVELAND, Appellant, v. CREDIT BASED ASSET SERVICING and Clearvu Opportunity XV, LLC, as assignee, Appellees.
    No. 1D11-5526.
    District Court of Appeal of Florida, First District.
    Dec. 15, 2011.
    Mark Anthony Cleveland, pro se, Appellant.
    Roger A. Kelly of Foster & Kelly, Orlando, for Appellees.
   PER CURIAM.

The Court has determined that the appellant failed to timely invoke its appellate jurisdiction. Accordingly, the appeal is dismissed. All pending motions are denied as moot.

WOLF, HAWKES, and ROBERTS, JJ., concur.


text:
    Ronald G. SHINGLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6073.
    District Court of Appeal of Florida, First District.
    Dec. 19, 2011.
    Rehearing Denied Feb. 3, 2012.
    Ronald G. Shingler, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(A).

VAN NORTWICK, THOMAS, and RAY, JJ., concur.


text:
    Stephen Louis THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4163.
    District Court of Appeal of Florida, Fifth District.
    Dec. 27, 2011.
    Rehearing Denied Jan. 31, 2012.
    Stephen L. Thomas, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

ORFINGER, C.J., GRIFFIN and JACOBUS, JJ., concur.


text:
    Michael W. KLINE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3537.
    District Court of Appeal of Florida, Fifth District.
    Dec. 30, 2011.
    Michael W. Kline, Madison, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Michael Kline appeals the summary denial of his Rule 3.800(a) motion to correct illegal sentence. Because the written sentencing orders are inconsistent with the oral pronouncement at sentencing (as well as the terms of the plea agreement), we reverse.

On January 27, 2010, Kline entered into a plea agreement to resolve three felony charges — felony fleeing or attempting to elude (Case No. 2009-CF-1198), dealing in stolen property (Case No. 2009-CF-1195), and violation of probation on a grand theft offense (Case No. 2009-CF-419). The plea agreement provided for Kline to receive a seven-year habitual felony offender (HFO) prison sentence in Case Number 2009-CF-1198 and concurrent five-year prison sentences on the other two charges. The trial court, consistent with the plea agreement, orally pronounced an HFO sentence only as to the felony charge in Case No. 2009-CF-1198. However, the written judgment(s) erroneously recited that Kline was sentenced as an HFO in all three cases.

A written sentence that conflicts with the oral pronouncement and sentence imposed in open court is an illegal sentence, cognizable in a motion to correct illegal sentence. See Williams v. State, 957 So.2d 600 (Fla.2007); Beard, v. State, 27 So.3d 186 (Fla. 5th DCA 2010). On remand, the trial court shall correct the written judgment(s) to provide that Kline was sentenced as an HFO in Case No. 2009-CF-1198 only. The other issues raised by Kline are without merit.

AFFIRMED in part; REVERSED, in part; REMANDED.

ORFINGER, C.J., TORPY and EVANDER, JJ., concur.


author: MARSTILLER, J.

text:
    Harry M. KOSLOWSKI, Former Husband, Appellant, v. Susan S. KOSLOWSKI, n/k/a Susan Hardman, Former Wife, Appellee.
    No. 1D10-4128.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 6, 2012.
    William S. Graessle of William S. Graes-sle, P.A., Jacksonville, for Appellant.
    Corrine A. Bylund, Jacksonville, for Ap-pellee.
   MARSTILLER, J.

The parties to this appeal are the divorced parents of three sons. Pursuant to a mediated settlement agreement, the Final Judgment of Dissolution of Marriage, entered in 2004, provided for shared parental responsibility, with Appellee, the former wife, as the primary residential parent. The two elder sons have reached eighteen years of age. But the eldest, Alexander (“Alex”), suffers from a severe seizure disorder and has been declared mentally incompetent. Appellee, who lives in Seattle, Washington, with her current husband, cares for Alex full time.

The controversy underlying this appeal arose when Appellant, the former husband, refused to pay for respite nursing care for Alex. Appellee successfully petitioned the trial court for an increase in child support to cover the expense. The court ruled that Appellee is entitled to receive payments for respite care related to her continuing care of Alex; Appellant must pay for ten hours per week and one forty-hour week each year for nursing care for Alex, by a registered nurse, at an hourly rate of $45.00; Appellant must reimburse Appellee $15,871.00 for past respite care expenses; and Appellee must provide Appellant with appropriate documentation (invoices and receipts) of the nursing services Alex receives. Appellant raises several evidentiary challenges to the trial court’s order, and we dispose of them without further comment for there is competent, substantial evidence in the record supporting the court’s findings. Appellant’s primary contention is that the cost of respite care constitutes additional child support the trial court had no legal basis to order. We conclude otherwise and affirm.

Alex suffers from an acute epileptic condition called Lennox-Gastaut Syndrome. His condition has deteriorated substantially since the parties divorced. Because of his worsening condition, Appellee stopped working to care for him full time. Appel-lee, who is a registered nurse (RN), described Alex’s medical needs as follows. He takes five seizure medications: Depa-kote, Diastat, Dilantin, Lamictal and Ruffi-namide. Neither a nursing assistant nor a licensed practical nurse (LPN) can administer the Dilantin because neither professional is authorized to determine when the drug is needed. Alex experiences up to forty seizures in a day, and at times, he is rendered unable to breathe. Depending on the type and length of a seizure, Alex may need to be given Diastat, which is administered rectally and causes respiratory depression, have his airway opened with a tube placed in his oropharynx, and receive oxygen. Although these procedures generally need not be performed by a healthcare professional, Alex’s condition and status as an unstable patient require a RN’s critical thinking and assessment skills — particularly neurological and respiratory assessment — to determine the best course of treatment when he is experiencing a seizure. In sum, Alex needs medical care from a trained professional above the level of LPN. Appellee currently provides such care, and the trial court ordered respite medical care to relieve her from time to time and to enable her to go on vacation with her husband and other children.

Relying on Kuttas v. Ritter, 879 So.2d 3 (Fla. 2d DCA 2004), Appellant asserts that the trial court here erred as a matter of law by ordering him to pay for Alex’s respite care because Appellee’s need for respite arose when she voluntarily relocated with Alex to another state. Kuttas appears to be the only Florida appellate decision discussing respite care in the marital dissolution/child support context. There, the Second District reviewed an order modifying child support upward to include respite care expenses for the parties’ two teenage children, both of whom were autistic. The children’s mother sought additional child support because both children had special needs, the father had moved out of state and could no longer exercise visitation every other weekend, and the mother received no regular relief from taking care of the children. 879 So.2d at 4. The trial court found these factors constituted a substantial change in circumstances justifying an upward deviation from the child support guidelines to cover the cost of twenty-four hours of respite care per month for each child. Id. at 5-6. The Second District affirmed the trial court’s finding. Id.

We do not read Kuttas to hold categorically that a court may only require a parent to pay for respite care for a child when that parent stops exercising his or her visitation. On the contrary, in that case the father’s inability to visit the children after relocating out of state was merely one factor among others for the court to consider in deciding whether to increase child support payable to the mother. Whether a substantial change in circumstances has occurred to justify an increase in child support is a decidedly case-specific determination. See generally Overbey v. Overbey, 698 So.2d 811, 813 (Fla.1997).

Moreover, the respite care ordered by the trial court in Kuttas was for child care, albeit for two autistic children. Here, the respite care the trial court awarded Appel-lee is for Alex’s medical care. Section 61.30(ll)(a)l, Florida Statutes (2004), permits adjustments in child support for “[extraordinary medical, psychological, educational, or dental expenses.” We find no abuse of discretion by the trial court in requiring Appellant to reimburse Appellee, who shoulders most of the responsibility for Alex’s medical care, for a limited amount of respite care. Alex’s condition and constant need for medical care justify the award.

AFFIRMED.

WETHERELL and SWANSON, JJ., concur.

      . It appears from the record that Appellee initially sought the respite care payments under the provision in the Final Judgment of Dissolution of Marriage requiring Appellant to pay for all reasonable health care expenses not covered by health insurance and exceeding $1,000 per year. However, Appellee subsequently filed a supplemental petition to modify child support addressing Alex’s need for round-the-clock medical care.

      . Lennox-Gastaut syndrome is a severe form of epilepsy. Seizures usually begin before 4 years of age. Seizure types, which vary among patients, include tonic (stiffening of the body, upward deviation of the eyes, dilation of the pupils, and altered respiratory patterns), atonic (brief loss of muscle tone and consciousness, causing abrupt falls), atypical absence (staring spells), and myclonic (sudden muscle jerks). There may be periods of frequent seizures mixed with brief, relatively seizure-free periods.
      National Institute of Neurological Disorders and Stroke, http://www.ninds.nih.gov/ disorders/lennoxgastautsyndrome/ lennoxgas-tautsyndrome.htm (last viewed Dec. 6, 2011).

      .At the time of the hearing and rendition of the decision on appeal, Alex was attending special education classes outside the home approximately nine hours per week, accompanied by a nurse. He has since aged out of the program.

      . Although in making this argument, Appellant urges de novo review, we employ the abuse of discretion standard of review applicable to orders modifying child support. See Spano v. Bruce, 62 So.3d 2, 5 (Fla. 3d DCA 2011).


text:
    Daryl D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-1613.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 6, 2012.

      James T. Miller, Jacksonville, for Appellant.
    Sonya Rudenstine, Gainesville, and Michael Ufferman, Tallahassee, Amicus Brief of the Florida Association of Criminal Defense Lawyers in support of Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Daryl D. Thomas, was convicted of armed robbery and aggravated battery and was sentenced to concurrent terms of fifty years’ imprisonment with twenty-five-year mandatory minimums. First, Appellant argues that the trial court erred in allowing the State to use a peremptory challenge on an African-American juror. Even if this issue had been preserved for appellate review, it is without merit. Second, Appellant argues that his sentence is unconstitutional pursuant to Graham, v. Florida, — U.S.-, 130 S.Ct. 2011, 176 L.Ed.2d 825 (May 17, 2010), because he was seventeen years old when he committed the charged crimes.

The victim, Alphonso Fly, was shooting dice with Dominique Lloyd behind an abandoned house, and Appellant and others were watching the game. Fly went to his truck during the game to get $100 so he could continue to play dice. Appellant told one of the on-lookers that he was going to rob Fly. Fly was shooting the dice when Appellant walked behind him, pulled a gun, and told him to “give it up.” Fly struggled with Appellant over the gun, but Appellant shot Fly in the back, paralyzing Fly from the waist down. The trial court originally sentenced Appellant to concurrent terms of life imprisonment, but, pursuant to a Florida Rule of Criminal Procedure 3.800(b)(2) motion, the trial court reduced the life sentences to concurrent terms of fifty years’ imprisonment after considering the reasoning of Graham.

Defense counsel filed a second rule 3.800(b)(2) motion arguing that Appellant’s sentence of fifty years’ imprisonment violated the spirit of Graham because Appellant would not receive review of his sentence until he completed serving 85% of his sentence. The trial court denied this motion, finding that the fifty-year sentence was not the functional equivalent of a life sentence because the average life expectancy for an African-American male was 70.2 years; thus, even if Appellant served his entire sentence, he would only be in his late sixties when he was released. Appellant argues that the trial court erred in denying the 3.800(b)(2) motion and urges this Court to find that his sentence is unconstitutional.

In Graham, the defendant committed armed burglary with assault or battery and attempted armed robbery when he was sixteen years old. Id. at 2018. The trial court withheld adjudication of guilt and sentenced Graham to concurrent terms of three years’ probation. One year later, Graham admitted to violating the terms of his probation, and the trial court adjudicated him guilty of the underlying offenses and sentenced him to concurrent terms of life imprisonment and fifteen years’ imprisonment. Id. at 2019-20. Graham argued that his sentence violated the Eighth Amendment’s prohibition against cruel and unusual punishment. Id. at 2020. Due to juveniles’ diminished moral responsibility, the Supreme Court held that the Eighth Amendment prohibited life sentences without the possibility for parole for juveniles convicted of nonhomicide crimes because life sentences improperly denied juvenile offenders a chance to demonstrate growth and maturity. Id. at 2029-30.

Appellant asks this Court to apply Graham to his case and find that his concurrent fifty-year sentences are the functional equivalent of life sentences. However, the Supreme Court specifically limited its holding to only “those juvenile offenders sentenced to life without parole solely for a nonhomicide offense.” Id. at 2023. While we agree that at some point, a term-of-years sentence may become the functional equivalent of a life sentence, we do not believe that situation has occurred in the instant case. See United States v. Mathunn, 2011 WL 2580775 (S.D.Fla. June 29, 2011) (finding that a mandatory minimum sentence of 307 years’ imprisonment for a juvenile was unconstitutional); People v. Mendez, 188 Cal.App.4th 47, 114 Cal.Rptr.3d 870 (2010) (holding that an eighty-four-year sentence for a sixteen-year-old offender for a nonhomicide offense was unconstitutional). As found by the trial court, Appellant would be in his late sixties when he is released from prison if he was required to serve the entirety of his sentence. Thus, Appellant’s sentence is not equivalent to life imprisonment without the possibility of parole.

We acknowledge that there is little guidance on how trial courts should proceed with claims such as Appellant’s because the United States Supreme Court has yet to address the issue of whether and at what point a term-of-year sentence would violate the Eighth Amendment. However, the language of Graham provides a solution to this problem. The Supreme Court held:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

Graham, 130 S.Ct. at 2030. This Court lacks the authority to craft a solution to this problem. We encourage the Legislature to consider modifying Florida’s current sentencing scheme to include a mechanism for review of juvenile offenders sentenced as adults as discussed in Graham.

We, therefore, AFFIRM the trial court’s imposition of judgments and sentences.

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

        See Sally Terry Green, Realistic Opportunity for Release Equals Rehabilitation: How the States Must Provide Meaningful Opportunity for Release, 16 Berkeley J.Crim. L. 1 (2011) (discussing how states may comply with the holding of Graham).


text:
    Jose LOPEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and New Look Lawn & Landscaping Service, Inc., Appellees.
    No. 1D11-5427.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Jan. 18, 2012.
    Jose Lopez, pro se, Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   PER CURIAM.

The Court has determined that the notice of appeal, filed on October 7, 2011, failed to invoke its jurisdiction in a timely manner. Accordingly, the appellee’s Motion to Dismiss, filed on October 12, 2011, is granted and the appeal is dismissed.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Lawrence L. BLANKENSHIP, Appellant, v. Ernie Lee MAGAHA, Appellee.
    No. 1D11-5669.
    District Court of Appeal of Florida, First District.
    Dec. 30, 2011.
    Rehearing Denied Feb. 10, 2012.

      Lawrence L. Blankenship, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Erick M. Drlicka of Emmanuel, Sheppard & Condon, Pensacola, for Appellee.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.030(b)(2)(B). All pending motions are denied as moot.

WETHERELL, MARSTILLER, and SWANSON, JJ., concur.


text:
    Allison Keith MELLS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4488.
    District Court of Appeal of Florida, Fifth District.
    Jan. 10, 2012.
    Rehearing Denied Feb. 6, 2012.
    Allison K. Mells, East Palatka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

SAWAYA, MONACO and EVANDER, JJ., concur.


author: WARNER, J.

text:
    Archie HILLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1383.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

This case presents a very rare incidence where ineffective assistance of counsel is apparent on the face of the record. Trial counsel failed to move to sever two distinct counts of a criminal information until after the jury was informed of both crimes. Although the trial court tried to salvage a bad situation, the damage was irreparable, as counsel continued to perform ineffectively. We are compelled to reverse.

The state filed an information against appellant in St. Lucie County, Florida, alleging four counts: count I for sexual battery by digital penetration of A.W.G., a child under 12 by a perpetrator 18 or older, for incidents that occurred between November 19, 1997, and November 18, 1998; count II for sexual battery by oral penetration of or union with A.W.G., a child under 12 by a perpetrator 18 or older, during the same time period; count III for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between December 1, 2003, and December 31, 2003; and, count IV for lewd or lascivious molestation of D.A.R., a victim 12 to 16, for incidents that occurred between August 29, 2005, and May 4, 2007.

At jury selection on February 8, 2010, the trial judge read all four counts to potential jurors. The jury was chosen and sworn, and the court asked if the attorneys had any motions, to which defense counsel Stephen Fromang responded, “No, I’m going to go back and ... take a good hard look at it now.” The next morning, Mr. Fromang filed a Motion to Sever Counts III and IV, stating that he thought the state had nolle prossed them, and because of this, he was not ready to proceed on those counts and had not conducted discovery.

The court expressed its irritation with Mr. Fromang and admonished him for filing the motion so late. Fromang responded, “I didn’t — I just was telling you, Judge, it didn’t coalesce, but when it did, I — I—I presented it to the Court.” Fromang stated that he had based his assumption that the state had nolle prossed the counts on the fact that D.A.R. had recanted her story in a letter and said she didn’t want to be involved in the trial. The state maintained, however, that D.A.R. had never recanted and that Mr. Fromang was “aware that she’s always been involved in the picture.” Mr. Fromang admitted that he never took her deposition, nor had he ever received a nolle prosse from the state.

The prosecutor suggested that Mr. Fro-mang ask for a mistrial on those two counts and waive jeopardy so that the court could sever counts III and IV. Mr. Fromang immediately agreed. The court then asked the prosecutor how she wished to proceed, and she responded that she believed that counts I and II were interrelated to counts III and IV. The court then suggested that the Williams Rule might provide a basis for allowing the charges in counts III and IV to be inserted in counts I and II. The prosecutor had not pursued admission of the testimony of victim D.A.R. through the Williams Rule, because the counts were never severed. The court discussed with the prosecutor the similarities between the crimes to determine whether this would cure the prejudice to the state if severance were granted.

The judge then began to ask Mr. Fro-mang if he was making a motion to sever, but then stated that the court “can’t have anything to do with your decision.” Mr. Fromang requested a mistrial, but the court prompted Mr. Fromang on waiving double jeopardy on counts III and IV, and Mr. Fromang immediately moved for the waiver. The court then asked Mr. Fro-mang if he would waive the ten-day notice requirement for Williams Rule evidence, and Mr. Fromang readily agreed to do so. See § 90.404(2)(d)l., Florida Statutes. Turning to the prosecutor, the court then discussed the theories under which the second victim’s testimony would be admitted, suggesting that it could be admissible to show the chronology of why A.W.G. came forward with her accusations, which occurred after she found out that D.A.R., her sister, had been molested by appellant.

Mr. Fromang insisted that D.A.R. would, if put on the stand, recant her previous story and state that Appellant had never touched her. The judge asked Mr. Fromang why he would wish to sever if he believed that D.A.R. would testify in favor of appellant, and he responded “it’s an advantage to me — I’m not saying it’s not, but — but when I saw this, uh, where the Rule says we have the option to sever if we can, and I admit it’s not timely, I agree with that.” The judge expressed his concern that he had already read all four counts to the jury, so the judge and the attorneys discussed the appropriate way to inform the jury about the change, since, as the court said, “it’s pretty obvious that they’re ... aware of four counts.” The court believed, however, that if D.A.R.’s testimony was admissible as Williams Rule evidence, this would cure any prejudice of informing the jury of the D.A.R. charges against the defendant. The court decided not to mention the other charges to the jury again.

A.W.G. testified that the first incident with appellant occurred when A.W.G. was 11, when appellant touched her legs and inserted a finger into her vagina. Following this incident, appellant would offer to take A.W.G. home from baseball practices and games, but appellant would stop at his house before taking her home. A.W.G. claimed this was when the sexual encounters occurred, beginning with a hug, but not “a regular hug,” and then oral sex. A.W.G. did not say anything to anybody about the incidents but remembers it happening about 50 times. On cross-examination, Mr. Fromang, in attacking the credibility of A.W.G.’s memory, suggested that “it could have been 200” incidents, and A.W.G. agreed that it could have been. A.W.G. stated that the encounters stopped when she was 16 or 17. Mr. Fromang did not object to these statements, which referred to incidents that occurred outside the November 1997 to November 1998 timeframe alleged in the information. A.W.G. did not report the incidents with appellant until June of 2007, when she did so “out of concern” for her sisters, specifically D.A.R., who had told her of her own encounters with defendant.

Immediately prior to the proffer of D.A.R.’s testimony, the state presented several cases in support of admissibility of the Williams Rule evidence. Mr. Fro-mang stated that he had no contrary case law, since “that’s ... black letter stuff.” Following D.A.R.’s statements, Mr. Fro-mang conducted a cross-examination and questioned her prior inconsistent statements recanting this testimony. Mr. Fro-mang then stated that “we have some people out there that would come in and contradict that.” The court ruled that such testimony would “just go[] to the weight of the evidence ... [rjather than its admissibility.” Mr. Fromang responded, “Bingo. I know.” Mr. Fromang did not object to the court’s finding that D.A.R.’s testimony was admissible. The court instructed the jury at that point that they would be hearing evidence of other acts that should be considered only “for the limited purpose of proving motive, opportunity, intent, preparation, plan, knowledge or the absence of mistake or accident on the part of the Defendant.”

During the proffered testimony and D.A.R.’s testimony to the jury, D.A.R. stated that when she was thirteen, appellant asked for a hug and proceeded to touch D.A.R.’s buttocks and breasts until D.A.R. told him to stop and began crying. Then in 2006, when D.A.R. was sixteen years old and living with appellant, D.A.R. was lying in bed, when D.A.R. felt appellant’s hand sliding up under the covers, but D.A.R. stopped him. D.A.R. recalled feeling appellant’s face close to her neck during hugs, and feeling his hands on her thighs. In May of 2007, D.A.R. moved out of appellant’s house and in with A.W.G. Not long after that, D.A.R. told A.W.G. about the incidents. Mr. Fromang questioned the letter D.A.R. wrote recanting her statement on cross, and D.A.R. stated that she wrote the letter because at that time she was dealing with her mother in jail and did not want to deal with the trial too.

After the presentation of evidence, the court below instructed the jury only on counts I and II. The jury found appellant guilty as charged on both counts, and the court sentenced him to concurrent sentences of life in prison without the possibility of parole.

Appellant argues on appeal that his counsel, Mr. Fromang, provided completely ineffective assistance of counsel in multiple respects. In general, a claim of ineffective assistance of counsel cannot be raised for the first time on appeal, but rather such a claim is properly made in a motion for post-conviction relief under Rule 3.850, Florida Rules of Criminal Procedure. Odeh v. State, — So.3d -, -, 2011 WL 2694434 (Fla. 4th DCA 2011). However, there is an exception in which “an appellate court may review an ineffective assistance of counsel claim on direct appeal when the claimed ineffectiveness is apparent on the face of the record.” Kidd v. State, 978 So.2d 868, 869 (Fla. 4th DCA 2008). This exception is rarely applicable, Boyd v. State, 45 So.3d 557, 560 (Fla. 4th DCA 2010), because “[s]uch claims ordinarily turn on issues of fact and both sides are entitled to present relevant evidence to the trial court to resolve those issues.” Gordon v. State, 469 So.2d 795, 798 (Fla. 4th DCA 1985) (Anstead, J., concurring specially). “ ‘[AJppellate courts make an exception to this rule when the ineffectiveness is obvious on the face of the appellate record, the prejudice caused by the conduct is indisputable, and a tactical explanation for the conduct is inconceivable.’ ” Larry v. State, 61 So.3d 1205, 1207 (Fla. 5th DCA 2011) (quoting Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002)). The appellate court must conduct a de novo review of the record to determine if a defendant’s claim meets the deficiency and prejudice prongs of Strickland, discussed below. See Gordon, 469 So.2d at 797-98.

In accordance with the Supreme Court’s holding in Strickland v. Washington, there are two components to a successful ineffective assistance of counsel claim. 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “First, the defendant must show that counsel’s performance was deficient. ... Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. Here, we conclude that both are shown.

It is inconceivable to us how Mr. Fromang could have participated in jury selection, listened to the judge read four charges to the jury, questioned the jury, and the next day moved to sever two of the counts that the jury already heard. His performance is so clearly deficient that we hardly need to say much else. The jury was irreparably tainted by hearing that appellant was charged with two additional crimes. Counsel compounded this error by abandoning his client’s rights in agreeing to waive the ten-day requirement of the statute for the admission of Williams Rule evidence, something he appeared to do to mollify the judge and not to protect his client’s interests.

The errors continued when D.A.R. testified in the Williams Rule proceeding. He did not object that the trial court refused to permit him to introduce evidence on the issue and even agreed to the court’s erroneous statement that the other witnesses would go to the weight, not the admissibility, of the Williams Rule evidence. Because the trial court must determine that clear and convincing evidence supports the claim that the defendant did commit a collateral crime whose admission is sought, see Alsfield v. State, 22 So.3d 619, 620-21 (Fla. 4th DCA 2009), a defendant has the right to present evidence on the issue. To show the collateral crimes evidence is material, “the State must prove by clear and convincing evidence that the collateral act was actually committed by the defendant,” and when an alleged victim to this other offense has told inconsistent stories, this may be insufficient to meet this standard. Id. at 621 (citing Audano v. State, 641 So.2d 1356, 1358-59 (Fla. 2d DCA 1994)). In this case, Mr. Fromang sought to call witnesses to testify that D.A.R. changed her story. The trial court refused to hear the witnesses and Mr. Fromang never objected. Had he done so, the court might have reconsidered and allowed him to present witnesses. That may have persuaded the trial court that D.A.R.’s evidence was unreliable and thus inadmissible under the Williams Rule standard.

Finally, Mr. Fromang never objected when the judge left a position of neutrality in an attempt to salvage the trial from the mess created by Mr. Fromang’s belated motion to sever. The court made suggestions to the state on theories to admit the Williams Rule evidence so that the state would not be prejudiced by the motion to sever. It even obtained Mr. Fromang’s waiver of his client’s right to notice. We understand that the court was trying to make the best of a bad situation and to avoid a double jeopardy problem, but in this case the situation appeared irreparable. The need for a mistrial would have been the fault of the defendant, thus avoiding the double jeopardy bar. State v. Dixon, 478 So.2d 473, 474-75 (Fla. 2d DCA 1985).

In viewing the second prong of the Strickland test, we also find that the ineffective assistance was so serious as to have affected the outcome. This was a case with no evidence other than the testimony of the two victims, one of whom may have recanted. The incidents were ten years apart, and proper objections may have prevented D.A.R. from testifying as a Williams Rule witness. See Alsfield. We can conceive of no tactical strategy which would justify the conduct of counsel in this case. There being a reasonable probability that the outcome would have been different had counsel provided effective representation, we must reverse.

We caution that this result is limited by the specific facts of this case and does not show a greater leniency of this court to find ineffective assistance on the face of the record. As we said in the beginning, this case is a rare exception to the general rule.

DAMOORGIAN and GERBER, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Jerome WALLACE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3812.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 27, 2012.
    Jerome Wallace, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Franklin v. State, 887 So.2d 1063 (Fla.2004).

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


text:
    Gordon HALES, Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-3938.
    District Court of Appeal of Florida, Fourth District.
    Jan. 11, 2012.
    Rehearing Denied Feb. 27, 2012.

      Gordon Hales, Doral, pro se.
    No appearance required for respondent.
   PER CURIAM.

Petitioner Gordon Hales sought mandamus relief in this court to compel the circuit court clerk to explain why a copy of the indictment in his case was stamped as filed on May 1, 2000, following his conviction after jury trial. The clerk of the circuit court does not have a ministerial duty to answer to the petitioner’s demands for an explanation. Mandamus does not lie, and we dismiss the petition.

Because petitioner is a vexatious prisoner litigant who has been repeatedly cautioned against frivolous filing, we issued an order to show cause why this court should not impose the sanction of no longer accepting petitioner’s pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999). Having considered petitioner’s response, we determine that he has shown no justification for continuing to litigate this merit-less claim which he has raised in various forms in numerous filings. We therefore impose the sanction of no longer accepting petitioner’s pro se filings.

Petitioner is serving a life sentence for his 2000 conviction after jury trial for sexual battery. Petitioner was indicted by a grand jury in 1995 and later extradited from the Dominican Republic. After his sentencing, it appears that a duplicate of the indictment was filed with the clerk of court. He has repeatedly moved for discharge on speedy trial grounds arguing that the charge is still outstanding, that the court never acquired jurisdiction, and that he must be forever released. He has repeatedly been advised that he was convicted under the 1995 indictment and that no other indictment is pending. Petitioner has raised this same claim, or variations thereof, in a Rule 3.850 motion, a habeas corpus petition, and in an appeal from an order dismissing as moot his motion for speedy trial discharge. In total, petitioner has filed and appealed the denial of four Rule 3.850 motions.

In this mandamus petition, petitioner seeks to compel the Broward circuit court clerk to explain why the indictment is stamped as having been filed on May 1, 2000. Petitioner maintains that the jurisdiction of the circuit court was not properly invoked because the indictment was not filed. He relies on Florida Rule of Criminal Procedure 3.140(c)(3) which provides that “[e]very indictment or information on which the defendant is to be tried shall bear the date (day, month, year) that it is filed in each court in which it is so filed.”

Petitioner admits that he has received copies of the indictment under which he was tried but complains that the copies do not contain the clerk’s date stamp which he believes is necessary to prove the date the indictment was filed. He maintains that the court lacked jurisdiction unless the indictment was filed.

Petitioner clearly was tried pursuant to the 1995 indictment which was filed before trial. He attached portions of the trial transcript where the judge read the indictment to the jury. Even assuming that there is no indictment with a clerk’s date stamp indicating it was filed before trial, petitioner was not prejudiced in his defense.

Florida Rule of Criminal Procedure 3.140(o) provides:

(o) Defects and Variances. No indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

Id. (emphasis supplied).

Petitioner’s continued attempts to litigate whether the indictment was actually filed in 1995 are frivolous. We repeatedly have advised him that his claim is meritless but he persists in pursuing the claim. Because petitioner has been repeatedly warned, but refuses to cease his abuse of judicial process, we impose the sanction of no longer accepting pro se filings. We direct the clerk of this court to no longer accept filings from petitioner unless they are signed by a member in good standing of The Florida Bar.

Petition dismissed. Sanction imposed.

POLEN, HAZOURI and GERBER, JJ., concur.

      . This court has twice cautioned appellant, in case numbers 4D10-314 and 4D10-628, against frivolous filing.