author: THOMAS, J.

text:
    Rosanna SNIDER, Appellant, v. MUMFORD, INC. d/b/a Majik Market # 30332, and Atlantic International Insurance Company, Appellees.
    No. 1D10-2759.
    District Court of Appeal of Florida, First District.
    July 7, 2011.

      Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and William N. Hutchinson, Jr., Fort Lauderdale, for Appellant.
    Brian C. Dowling of Goodman, McGuffey, Lindsey & Johnson, LLP, Orlando, for Appellees.
   THOMAS, J.

In this workers’ compensation appeal, we must address whether a statute providing for the use of an Expert Medical Ad-visor applies retroactively. Here, Claimant challenges the order of the Judge of Compensation Claims (JCC) on three grounds: (1) the JCC erred in applying sections 440.13(5) and (9), Florida Statutes (2003), to this 1982 accident; (2) the JCC erred in denying Claimant’s request for a one-time change in treating psychiatrist; and (3) the JCC erred in denying Claimant’s claim for non-professional attendant care. We affirm the second issue without further comment, finding that the JCC correctly applied the relevant law. We affirm in part and reverse in part on issues one and three, finding that section 440.13(9), cannot apply retroactively.

Facts and Procedural History

In 1982, Claimant was brutally assaulted, kidnapped and shot at her workplace. Since that time, she has received indemnity and medical benefits.

In 2009, Claimant filed a petition for benefits seeking authorization for psychiat-rically necessary, non-professional attendant care. At the time Claimant was under the care of Dr. Tyson, a psychiatrist authorized by the Employer/Carrier (E/C) to provide treatment, but Claimant unilaterally underwent an examination by Dr. McClane, a psychiatrist. Dr. McClane recommended Claimant be provided attendant care for emotional reasons and to allay her fears. Dr. Tyson opined the care was not medically necessary.

Because of the disagreement between the two physicians, the E/C requested the JCC appoint an expert medical advisor (EMA) pursuant to section 440.13(9), Florida Statutes (2003). Claimant objected, arguing that the 2003 EMA statutory provision could not be applied retroactively to her 1982 accident. Claimant relied in part on this court’s decision in Southern Bakeries v. Cooper, 659 So.2d 339 (Fla. 1st DCA 1995). The E/C argued that because section 440.13 addressed the procedure whereby a claimant is provided medical care, any changes to section 440.13 were procedural in nature and applied retroactively to dates of accidents prior to their enactment. For this proposition, the E/C relied on the authority of this court’s decision in Butler v. Bay Center, 947 So.2d 570 (Fla. 1st DCA 2007). The JCC agreed and found that, based on Butler, the EMA statute; section 440.13(9), Florida Statutes, could be applied retroactively and appointed Dr. Edgar as the EMA.

Analysis

Although understandable based on the broad language of our decision in Butler, the JCC’s reliance on Butler to find that section 440.13(9) is procedural is misplaced, as Butler addressed only section 440.13(2)(e) and (f), Florida Statutes (2005). See id. at 572-73 (holding that changes to section 440.13(2)(c) and (f), which address procedure for authorizing medical providers, are remedial and apply to all accidents, regardless of date). Any references in Butler to section 440.13 beyond subsections (2)(c) and (f) are dicta.

We conclude that section 440.13(9) effects a substantive change, using an analysis similar to that which we applied in Southern Bakeries v. Cooper regarding section 440.13(5), as that statute addresses an issue much more closely related to the EMA statutory provision. 659 So.2d 389 (Fla. 1st DCA 1995). In Southern Bakeries, this court determined that the 1994 amendment to section 440.13(5), Florida Statutes, creating a new independent medical examination (IME) procedure was substantive because “it alters the parties’ obligation to pay for the claimant’s [IME].” 659 So.2d at 341. We explained that the prior IME statute, in effect on the date of the accident, allowed a claimant to obtain a medical examination by an expert whose fee could be assessed as a cost if the claimant prevailed. Id. at 340. Notably, in Southern Bakeries, there was no provision generally obligating the E/C to pay for the claimant’s medical examination:

In giving the claimant the right to select an [IME] and obtain such an examination without having to pay for this service, section 440.13(5) departs from the prior law under which the claimant could not always avoid such costs. The cases addressing whether a change in the law should be viewed as substantive or procedural have routinely treated the entitlement to a service, and the source of payment therefor, as a matter of substance.

Id. at 341 (emphasis added).

Although the EMA procedure did not exist before the 1994 statutory amendments, “tie-breaker” provisions similar to the EMA procedure have long existed in chapter 440. The statute in effect on the date of Claimant’s accident, section 440.25(3)(b), Florida Statutes (1981), provided in part:

When there is a conflict in the medical evidence submitted at the hearing, the deputy commissioner may designate a disinterested doctor to submit a report or to testify in the proceeding, after such doctor has reviewed the medical reports and evidence, examined the claimant, or otherwise made such investigation as appropriate. The report or testimony of any doctor so designated by the deputy commissioner shall be made a part of the record of the proceeding and shall be given the same consideration by the deputy commissioner as is accorded other medical evidence submitted in the proceeding; and all costs incurred in connection with such examination and testimony may be assessed as costs in the proceeding, subject to the provisions of s. 440.13(3)(a).

The deputy commissioner was also permitted to order medical examinations based upon his investigatory authority pursuant to section 440.29(1), Florida Statutes (1981). At that time, a claimant was not required to pay for an examination ordered by the deputy commissioner at the claimant’s suggestion. See Public Gas Co. v. Monette, 658 So.2d 673, 674 (Fla. 1st DCA 1995) (approving JCC’s appointment of an IME, pursuant to section 440.29(1), Florida Statutes (1991), with physician chosen by claimant); see also Berry Corp. v. Smith, 576 So.2d 1366, 1367 (Fla. 1st DCA 1991) (holding JCC may order IME pursuant to section 440.29(1), Florida Statutes (1987), but JCC may not require E/C to pay for examination unless, as stated in section 440.25(3)(b), Florida Statutes (1987), there is conflict in medical evidence).

Eventually, the “tie-breaker” provision in section 440.25(3)(b) became the EMA provision codified at section 440.13(9), Florida Statutes (Supp. 1994), and, with the statutory amendments effective October 1, 2003, a significant shift took place in a party’s burden to bear the cost of the “tie-breaker” examination, when section 440.13(9) was amended to require a claimant to pay for the examination if the claimant made the request. See Ch. 03^412, § 15, at 3904, Laws of Fla. As with the IME provision in section 440.13(5) addressed in Southern Bakeries, the EMA provision in section 440.13(9) affects the substantive rights of the parties — the entitlement to a service and the source of payment therefor — and cannot be applied retroactively. Thus, the JCC erred in applying it to this 1982 accident.

Because the JCC relied on the presumptively correct opinion of the EMA in denying the claim for non-professional attendant care, this, too, was error. On remand, the JCC is directed to reconsider Claimant’s entitlement to non-professional attendant care based upon the admissible medical evidence.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

WOLF and CLARK, JJ., concur.

      . The statutory language was the same in the sections relevant to this analysis, whether the year was 1981, 1987, or 1991.


source: Caselaw Access Project

author: JACOBUS, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Scott COLEMAN, Appellee.
    No. 5D09-4142.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    Paula C. Coffman and Jeffrey D. Deen, Regional Counsel of the Office of Criminal Conflict & Civil Regional Counsel, Orlando, for Appellee.
   JACOBUS, J.

This is an appeal by the State of Florida challenging the trial court’s order suppressing incriminating statements made by the defendant below, Scott Coleman. We reverse.

In granting suppression, the trial court found that the Miranda warning read to Coleman was defective under State v. Powell, 998 So.2d 531 (Fla.2008), since it did not specifically advise Coleman that he had the right to speak with an attorney during police questioning. However, some months after the trial court’s decision in this case, the United States Supreme Court reversed the Florida Supreme Court’s decision in Powell. See Florida v. Powell, -U.S.-, 130 S.Ct. 1195, 175 L.Ed.2d 1009 (2010). In doing so, the Supreme Court held that a Miranda warning is sufficient so long as it reasonably conveys the required information to the suspect. Id. at 1204.

We believe that the warning form read to Coleman in this case adequately conveyed his Miranda rights. Relevant to the issue before us, the form advised Coleman that he had the right to speak with an attorney before talking with law enforcement; that if he could not afford an attorney, one would be appointed before questioning; and that he could, at any time, exercise these rights and decline to answer any questions or make any statements. In combination, these warnings reasonably conveyed to Coleman that he had the right to have an attorney present at the outset of the interrogation and at all times. The warning as a whole was therefore sufficient under the Supreme Court’s decision in Powell. See id. at 1205; State v. Powell, 66 So.3d 905, 2011 WL 2374612 (Fla. 2011); see also Rigterink v. State, 66 So.3d 866, 2011 WL 2374188 (Fla.2011).

Accordingly, we reverse the order of suppression and remand the cause for further proceedings. See State v. Owens, 41 So.3d 352 (Fla. 5th DCA 2010).

REVERSED and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . In arguing for affirmance, Coleman contends the arrest warrant was procured pretex-tually and in bad faith. We reject this argument without comment, except to note that the trial court’s finding that there was no bad faith by law enforcement is supported by the record. State v. Shuttleworth, 927 So.2d 975, 979 (Fla. 2d DCA 2006).


author: PER CURIAM.

text:
    Charles R. MARTIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0777.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    Charles R. Martin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is granted. Case number 1D08-4478, a direct appeal from judgment and sentence in Duval County case number 2007-CF-009928 which was dismissed for failure to pay the filing fee, is hereby reinstated. The circuit court is directed to appoint counsel to represent Martin in the appeal at public expense if he qualifies for such an appointment. The appointment shall be made within 20 days issuance of mandate in this proceeding. The filing fee issue shall be resolved in 1D08-4478 within 20 days of date of the order of appointment.

PETITION GRANTED; APPEAL REINSTATED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    Donquiell BRUNDIDGE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1182.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    Donquiell Brundidge, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Donquiell Brundidge is hereby afforded belated appeal from his judgment and sentence in Leon County Circuit Court case number 2008 CF 1624. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(6)(D).

The circuit court is directed to appoint counsel for the appeal at public expense if he qualifies for such an appointment.

PETITION GRANTED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    John Ellis HARTLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1522.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    John Ellis Hartley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner presents a timely claim of ineffective assistance of appellate counsel. He was charged with first-degree murder and convicted by a jury of second-degree murder. The initial brief in his direct appeal was filed shortly after this court’s decision in Montgomery v. State, — So.3d -, 2009 WL 350624 (Fla. 1st DCA 2009), which held that the giving of the standard jury instruction on manslaughter in a case of this nature was fundamental error. The Florida Supreme Court has approved the decision of this court. See State v. Montgomery, 39 So.3d 252 (Fla. 2010). The state has responded to this petition and concedes that Hartley is entitled to relief as in Sharpe v. State, 39 So.3d 342 (Fla. 1st DCA 2010) and Toby v. State, 29 So.3d 1138 (Fla. 1st DCA 2009). We therefore grant the petition, reverse the murder conviction and sentence, and remand to the trial court for further proceedings.

PETITION GRANTED.

WETHERELL, MARSTILLER, and RAY, JJ., concur.


text:
    Lenorris PARKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1563.
    District Court of Appeal of Florida, First District.
    July 12, 2011.
    Lenorris Parker, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s order denying his rule 3.850 motion for postconviction relief as untimely. We reverse.

Appellant’s judgment and sentence became final on February 19, 2009, when the Florida Supreme Court denied review of this court’s decision affirming the judgment and sentence. Parker v. State, 1 So.3d 173 (Fla.2009) (table), denying review of, 973 So.2d 1167 (Fla. 1st DCA 2007). The two-year period for filing a rule 3.850 motion expired on Monday, February 21, 2011, because February 19, 2011, was a Saturday. See Fla. R.Crim. P. 3.040, 3.850(b). The record reflects that Appellant provided his motion to prison officials for mailing on February 21, 2011, and pursuant to Haag v. State, 591 So.2d 614 (Fla.1992), and Thompson v. State, 761 So.2d 324 (Fla.2000), the motion was deemed filed on that date. Accordingly, the motion was timely-filed and the trial court erred in denying the motion as untimely.

REVERSED and REMANDED.

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


text:
    David M. WILKERSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D10-4432, 5D10-4433.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2011.

      Marcia J. Silvers, of Marcia J. Silvers, P.A., Miami, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Verity v. State, 56 So.3d 77 (Fla. 2d DCA 2011).

GRIFFIN, LAWSON and EVANDER, JJ., concur.


text:
    Norman POTTINGER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-378.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2011.
    Norman Pottinger, Miami, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See State v. Shaikh, 65 So.3d 539 (Fla. 5th DCA 2011).

ORFINGER, C.J., PALMER and LAWSON, JJ., concur.


text:
    Susan A. MORROW, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-547.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2011.
    Susan A. Morrow, Ocala, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Moore v. State, 784 So.2d 617 (Fla. 5th DCA 2001).

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


author: LEVINE, J.

text:
    Barnard JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3567.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant appeals his conviction for first-degree murder and aggravated battery of an individual over sixty-five years of age, claiming that the trial court erred in denying his motion for judgment of acquittal. We find the trial court did not err, and we affirm appellant’s conviction and sentence.

On Christmas Eve in 2006, Fort Lauder-dale police responded to a residence where they found Elois Joseph, appellant’s father, dead from three stab wounds to his back. Appellant’s mother, Marie Joseph, was battered and found completely covered in blood. Around the same time, a neighbor saw appellant covered in blood in the driver’s seat of her son’s car. The neighbor ordered appellant out of the car, and he complied and ran towards his house.

Shortly thereafter, a few police officers standing in front of the Joseph household noticed a naked male peering out the front door. The police entered the house and found appellant locked in a bedroom. Appellant shouted, “Shoot me, shoot me. I’m gonna come out.” Appellant came out of the bedroom and was placed in custody.

At trial, there was evidence that appellant, in the weeks before the incident, believed that his mother was practicing Voodoo. Appellant’s mother had him admitted to a hospital, stating that her son “was not in his right mind.” Appellant’s girlfriend testified that appellant was acting “weird,” but she did not think he needed mental health treatment. Nevertheless, she also testified that appellant believed that his mother was placing a spell on him and trying to harm his newborn baby. During the birth of the child, appellant spoke “gibberish,” undressed, and ran through the hospital naked. Appellant told his girlfriend that he finally remembered killing his father, but he was not in control of his actions.

During appellant’s case, three experts testified that appellant was insane at the time of the murder of his father. Dr. Christopher Fichera concluded that, as a result of appellant’s psychotic behavior, appellant could not appreciate “the wrongfulness of his actions.” Dr. Ross Seligson also testified that appellant suffered from paranoid schizophrenia and did not understand the consequences of his actions. Finally, Dr. Suzanne Mignone also diagnosed appellant as a paranoid schizophrenic who was legally insane at the time of the murder of his father.

In rebuttal, the state offered the testimony of Dr. Michael Brannon, who testified that appellant was sane at the time of the murder. Dr. Brannon opined that appellant’s behavior was due to the consumption of ecstasy and other drugs, and appellant’s behavior was not indicative of mental illness. Dr. Brannon did not believe appellant suffered from paranoid schizophrenia but was in fact malingering.

Appellant moved for a judgment of acquittal on the basis that the “evidence presented to the jury establishes, at best, a circumstantial evidence case of his involvement.” Appellant sought a reduction in the charge to second-degree murder, claiming there was no evidence to support “premeditation.” The trial court denied the motion for judgment of acquittal, and this appeal ensues.

The trial court’s ruling on the motion for judgment of acquittal is reviewed de novo on appeal. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “A court should grant a motion for judgment of acquittal only if ‘the evidence is such that no view which the jury may lawfully take of it favorable to the opposite party can be sustained under the law.’” Turner v. State, 29 So.3d 361, 364 (Fla. 4th DCA 2010) (citation omitted). As the Turner court further explained:

Generally, an appellate court will not reverse a conviction supported by competent substantial evidence. “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”

Id. (citations omitted).

In the present case, appellant disputes that the record contains competent substantial evidence that he was sane at the time of the commission of the crime. In Florida, “a person is presumed sane, and, in a criminal prosecution, the burden is on the defendant to present evidence of insanity.” Hall v. State, 568 So.2d 882, 885 (Fla.1990). The state is not required to offer any evidence of the sanity of the defendant, inasmuch as the burden rests entirely with the defendant. State v. Rogers, 955 So.2d 1213, 1214 (Fla. 4th DCA 2007).

In the present case, appellant argues that the evidence presented by his girlfriend, his mother, and three expert witnesses all buttress his argument that he was insane at the time of the commission of the murder. Despite the evidence presented by appellant, the state also introduced evidence from its own expert witness who opined that appellant was not insane but acting as a result of the effects of substance abuse. The state also introduced evidence that appellant was trying to flee the scene in the car of the neighbor’s son.

The evidence presented by the state, that appellant was sane at the commission of the crime and that his conduct was as a result of substance abuse, lies in contrast with the evidence presented by appellant that he was insane at the time of the commission of the crime. Whether to believe the state or the defense theory of the case is the essence of a jury question. Appellant was not entitled to a judgment of acquittal since the state presented competent substantial evidence to sustain the conviction.

In summary, we find there is sufficient evidence for the jury to have found appellant sane at the time of the offenses, and we affirm the conviction and sentence.

Affirmed.

MAY, C.J., and DAMOORGIAN, J„ concur.

      . Even in a case where the state put on no expert witness to counter three defense expert witnesses, this court has found that "the testimony of [lay] witnesses, as well as the cross-examination of the defendant's experts, amounted to sufficient evidence from which the jury could have found against appellant on the issue of insanity.” Butler v. State, 891 So.2d 1185, 1186 (Fla. 4th DCA 2005).


text:
    Francis Benedict GUINAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1261.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.

      Paul Morris of the Law Offices of Paul Morris, P.A., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

Appellant, Francis Benedict Guinan, appeals his conviction for grand theft of property, valued between $20,000 and $100,000. We find that the trial court was correct to find that there was sufficient evidence to sustain the conviction of grand theft. We also find, based on the specific facts of this case, that appellant’s prosecution did not constitute an “excessive entanglement with religion” in violation of the United States Constitution and the Florida Constitution.

Appellant was charged with grand theft of over $100,000 in property from St. Vincent Ferrer Catholic Church, resulting from his use of parish funds for his own personal benefit rather than for the benefit of the parish. Appellant took over leadership of the parish from the prior pastor, Father John Skehan, in 2003. Skehan remained involved in counting the monies given to the parish in the weekly offering, even after appellant became pastor. Renee Wardrip, the bookkeeper at the parish for the first year of appellant’s tenure, testified to paying a former church employee, who ceased work at the church in 2000, $675 a week for “not being there.” Wardrip also testified to paying appellant’s credit card bills for out-of-town travel. The next bookkeeper, Apple Woo, testified that appellant requested to see the cash collected in the offerings. Appellant would keep some cash and return to Woo a reduced sum to be deposited into the parish’s operating accounts. Colleen Head, another parish employee, also testified that appellant would keep cash from the weekly offertory and would instruct her to deposit only a part of the weekly offering. Head testified that appellant retained $4,600 in cash from just one week’s offerings.

Father Charles Notabartolo, the Vicar General of the Diocese of Palm Beach, testified that priests draw both a salary and an allowance for an automobile. The funds to pay priests’ salaries and automobile allowances are derived from the general fund raised at each parish. Although the diocese has no particular control over the parish accounts, Notabartolo stated that a priest’s personal expenses would not be paid out of the parish’s operating account since the priest receives a salary package. The priest is allowed to make distributions from the parish accounts, without permission of the bishop, as long as the distribution does not exceed $50,000 and the distribution is “for the good of the parish.” Even in the exercise of the individual parish’s discretion, the pastors were instructed to keep records of distributions, and these accounts devoted to charitable works were required to be reported to the diocese quarterly. The Chief Financial Officer for the diocese, Dennis Hamel, testified that the diocese promulgated explicit written procedures regarding how offertory funds were to be counted and deposited. The diocese, according to Hamel, monitored the finances of each parish to ensure that each pastor was properly administering his duties. Hamel conceded that certain parishes would hold funds in unreported accounts to keep reported account balances low to avoid incurring larger fundraising goals during the diocese’s annual fundraising appeal.

At trial, there was testimony regarding renovations to appellant’s parish-owned home, as well as frequent trips out of state to places such as Las Vegas, Ireland, and the Bahamas. When appellant took over at the parish, Hamel attempted to audit the parish. At that time, Hamel reviewed some documents, but appellant prevented Hamel from returning to continue the audit or from observing the counting of the offertory. Appellant protested the audit and characterized it as a “witch hunt.” There was testimony that appellant removed cash from the offertory, and to avoid detection, Wardrip would create fake deposit slips to send to the diocese to hide the fact that cash was given directly to appellant. Appellant was present when the cash of the offertory was counted. After Wardrip resigned, Woo testified to an incident when she gave appellant a shoebox with about $11,000 in cash, and appellant returned the box with only $2,000 in cash remaining. Appellant told Woo he was planning to deposit the cash in other bank accounts. After Woo attended a bookkeepers’ training class sponsored by the diocese, Woo informed appellant that she could no longer participate in counting the offertory. Appellant stated to Woo, “[T]his is crap,” prompting Woo to resign the very same day.

Finally, several months after the first attempted audit, appellant agreed to an outside audit directed by Hamel. The outside auditor found that expenses listed as reimbursements for credit card payments were, by and large, “not church-related expenses.” The auditor found checks written directly to appellant for $30,640 without any accompanying receipts or documentation to justify payment to appellant. Appellant also wrote checks to Carol Ha-gen, the bookkeeper from appellant’s previous parish, St. Patrick’s Church. Nota-bartolo questioned appellant about these payments and told appellant that Hagen was not entitled to payments from St. Vincent Ferrer’s accounts. Despite this admonition, appellant wrote checks totaling $43,000 to Hagen. Appellant also wrote checks to Cardinal Newman High School for Hagen’s son’s tuition.

A forensic examiner testified for the state that during appellant’s tenure as pastor, there was a “cash shortfall” of roughly $372,343, and almost $487,000 in parish funds were misappropriated by appellant. The defense presented evidence from their own forensic examiner, claiming appellant deposited $134,000 in cash in other church accounts. Appellant also presented the testimony of another priest, who explained that parishes keep “slush funds” in separate accounts either to help needy parishioners or to reduce the amount of money they would be expected to remit to the diocese as part of the annual fundraising appeal. The defense presented other witnesses who stated that parish priests have substantial discretion in spending church funds. Nicholas King, a former vicar general, testified that a parish priest would have the discretion to pay for a past employee’s child to attend a Catholic high school and to pay for vacations for the pastor out of the parish’s operating account. The defense also presented the testimony of a former parishioner who decided to make a $100,000 gift to appellant out of appreciation for appellant’s past services. The parishioner wrote checks both to appellant and the parish to avoid appellant’s liability for federal gift taxes, but the parishioner intended that the checks written to the parish were for appellant’s use “as he so chose.”

Appellant offered justifications for the expenditures. He testified that he was granted permission to renovate the parish guesthouse utilizing parish funds. Appellant also explained that he paid Hagen out of St. Vincent Ferrer’s accounts in order to prevent Hagen from suing the diocese. Appellant likewise stated that he paid many church employees in cash. Appellant testified that he believed he had unfettered discretion to spend parish funds. Appellant conceded that the questionable bookkeeping practices he inherited from Skehan continued while he was the parish priest, such as falsifying deposit records and having unreported accounts.

The trial court twice denied appellant’s motion for a judgment of acquittal and submitted the case to the jury. The jury convicted appellant of the lesser included offense of grand theft of property valued between $20,000 and $100,000. The appeal of this conviction ensues.

We review the denial of the motion for judgment of acquittal with the de novo standard. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). Appellant argues that the state’s evidence is insufficient as a matter of law. Essentially, appellant claims that the discretion accorded to appellant as a parish priest forecloses any inference that he took the property of another.

In this case, the state relies on circumstantial evidence to prove appellant’s intent. “[D]irect evidence of intent is rare and must be proven through the surrounding circumstances.” Galavis v. State, 28 So.3d 176, 178 (Fla. 4th DCA 2010). Where the state relies on circumstantial evidence to prove intent, the evidence “must be inconsistent with innocence.” Ramsammy v. State, 43 So.3d 100, 104 (Fla. 4th DCA 2010) (citation omitted). However, the state need not “conclusively rebut every possible variation of events which can be inferred.” Atwater v. State, 626 So.2d 1325, 1328 (Fla. 1993). Significantly, “the absence of direct proof on the question of the defendant’s mental intent should rarely, if ever, result in a judgment of acquittal.” Ehrlich v. State, 742 So.2d 447, 450-51 (Fla. 4th DCA 1999).

In this case, the state presented evidence from officials of the diocese that a parish priest is supposed to use parish money only for parish purposes. Both Hamel and Notabartolo testified that appellant’s expenditures for Hagen and for vacations would not be valid parish purposes. Further, the forensic examiner testified that thousands of dollars in cash from the offertory were unaccounted for and that a significant amount of parish money was spent on items that both Nota-bartolo and Hamel testified were not parish related. Significantly, Notabartolo and Hamel testified that money collected from the offertory is collected from the parish members for parish purposes. There was also testimony from staff at the parish that fake deposit slips were used to cover up the fact that cash was taken from the offertory.

The state has introduced evidence inconsistent with appellant’s claim of innocence. The case rises and falls on the intent of appellant when he used parish money and removed cash from the weekly offertory and whether it was for his personal benefit, not related to parish purposes. Ultimately, intent is a question of fact to be decided by the jury. J.G. v. State, 915 So.2d 274, 276 (Fla. 4th DCA 2005). We find that there was sufficient competent evidence of grand theft for the jury to find appellant guilty.

Appellant also challenges the subject matter jurisdiction of the trial court, alleging that the prosecution of this case would entail “excessive entanglement with religion” in violation of Amendment I of the United States Constitution and article I, section 3, of the Florida Constitution. “[T]he First Amendment prevents courts from resolving internal church disputes that would require adjudication of questions of religious doctrine” under the “religious autonomy” principle. Malicki v. Doe, 814 So.2d 347, 356, 356 n. 6 (Fla. 2002). Purely secular disputes involving religious institutions and third parties, however, do not create excessive entanglement of church and state when they involve “neutral principles of law.” Id. at 357 (quoting Presbyterian Church in the U.S. v. Mary Elizabeth Blue Hull Mem’l Presbyterian Church, 393 U.S. 440, 449, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969)).

Appellant relies on State v. Burckhard, 579 N.W.2d 194 (N.D.1998), and State v. Burckhard, 592 N.W.2d 523 (N.D.1999), for the proposition that a prosecution of a priest for spending parish money created an excessive entanglement of the government in the determination of canon law. The North Dakota Supreme Court was persuaded by a letter from the presiding bishop expressing a desire to pursue ecclesiastical remedies against the priest. On remand, the presiding bishop affirmed that he did not consider the priest’s transgressions a matter for criminal prosecution. Significantly, in the present case, unlike Burckhard, there was no letter from the presiding bishop or any other diocesan official stating that appellant’s transgressions were an ecclesiastical matter, not a criminal infraction. In fact, two representatives of the bishop, Notabartolo and Ha-mel, testified that appellant’s expenditures and procedures regarding the offertory were improper and against diocesan procedures. The trial court was not asked to resolve an internal church dispute and simply applied neutral principles of criminal law to convict appellant of grand theft.

We find the other issues raised by appellant to be without merit, and we affirm the conviction and sentence.

Affirmed.

WARNER and CONNER, JJ., concur.


author: GROSS, J.

text:
    Atari Pierre DOWNS, Appellant, v. STATE of Florida, Appellate.
    No. 4D10-220.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Atari Downs appeals his conviction for aggravated battery with a firearm. We reverse, because testimony about a gun unrelated to the crime and unconnected to Downs was improperly admitted into evidence.

■ The victim testified that he met Downs through Lamarcus Cooper, who lived in a different building in the same apartment complex. The night of the shooting, the victim, Downs, and a few other people had been at Cooper’s place until one or two in the morning. The victim returned home and Cooper called him about Downs. At about 5:30 a.m., Downs knocked on the victim’s door a couple of times and asked him to come out and talk. When the victim opened the door and stepped out, Downs looked startled, pulled out a gun, and shot the victim in the shoulder.

The victim remembered identifying two people from a photo line-up. It did not take long for him to identify Downs. He did not immediately say who shot him, because he was not sure whether there would be any retaliation.

On cross-examination, the victim agreed that Cooper’s roommate was a man named Nicholas McGirt. The victim denied that he used any drugs that night. Initially he told police he had been shot by someone named Terrence, because he thought that was Downs’s first name. Terrence was the name of Downs’s brother. Up to the time of the shooting, the victim knew Downs only by his nickname, Boosie.

Cooper recounted a version of the facts that placed the victim in a more unflattering light. Cooper said that on the night of the shooting, he, Downs, the victim, and another guy were drinking and snorting cocaine while they made music. After the party broke up, Downs thought the victim had taken some drugs from him. Cooper called the victim to ask whether he had taken them. Downs left Cooper’s place to go to the store for cigarettes. When Downs returned from the store, he was sweaty. He then changed clothes and left. Cooper stated he had never seen Downs with a gun. To Cooper’s knowledge, Downs did not own a gun.

On redirect, Cooper testified that Downs did not have a bedroom in the apartment. He slept in the living room. Cooper and McGirt used the bedrooms, and Downs kept his clothes in Cooper’s room. Over objection, Cooper testified that a gun was found in his apartment the night of the shooting, that the gun was not his, and that he had never seen it before. The gun was found in McGirt’s bedroom. A crime scene investigator established that although a casing had been found at the shooting scene, no gun had ever been matched to it. A detective testified that the firearm found in McGirt’s bedroom “had nothing to do with this case.” It was not an automatic, the type of gun used in the shooting.

In closing argument, Downs’s defense was that someone else, perhaps Cooper, had been the shooter. On closing, the state argued that the gun found in McGirt’s bedroom was proof that Downs had access to guns in the apartment:

Now, the gun that was found in the house was not the gun used in this case, I concede that. But the reason I brought that fact out is to show you that there is access to guns. Mr. Cooper may have said I’ve never seen Mr. Downs with a gun, but there’s access to guns. There’s guns in the apartment. And Mr. Cooper also said, no, I’m not with him 24 hours a day, I don’t know every single thing that he does. Could he have gotten a gun? Yes. That, again, not unreasonable. That’s the purpose of me bringing out a gun.

The trial court erred when it overruled Downs’s objection to evidence about the gun which was found in Cooper’s apartment and was unrelated to this case.

Whether the gun was properly admitted into evidence presents a question of relevance.

Evidence must be relevant in order to be admissible. See § 90.402, Fla. Stat. [ (2009) ]. Relevant evidence is defined as evidence “tending to prove or disprove a material fact.” § 90.401, Fla. Stat. [ (2009) ]. While all admissible evidence must be relevant, not all relevant evidence is admissible; section 90.403 mandates that “[rjelevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice.” § 90.403, Fla. Stat. [(2009)].

O’Connor v. State, 835 So.2d 1226, 1230 (Fla. 4th DCA 2003). Generally, where the evidence at trial does not link a seized gun to the crime charged, the gun is inadmissible in evidence. Id. at 1231. A gun different than the one used in a crime is not relevant to prove that the crime occurred. Id. “Any marginal relevance in this type of testimony [is] substantially outweighed by the danger of unfair prejudice” under section 90.403. Id.

Even where a gun has a stronger connection to a defendant than the gun in this case, we have held that it should not be admitted into evidence if it is not connected to the crime charged. For example, in Rigdon v. State, 621 So.2d 475 (Fla. 4th DCA 1993),

the defendant was charged with attempted murder. We concluded that the trial court erred in admitting into evidence a small semi-automatic weapon which the police found under the defendant’s bed. We reasoned that the “exhibit did not tend to prove or disprove a material fact as it had no connection whatsoever to the charged offense.” Id. at 478.

O’Connor, 835 So.2d at 1231; see also Fugate v. State, 691 So.2d 53, 54 (Fla. 4th DCA 1997) (holding that trial court erred in admitting into evidence a handgun owned by the defendant which was found some distance from the crime scene of an aggravated assault, where there was no link to the charged offense); Sosa v. State, 639 So.2d 173, 174 (Fla. 3d DCA 1994) (holding that trial court erred in admitting bullets found in defendant’s vehicle where defendant was charged with firing handgun at victim’s car, since there was no link whatsoever established between the bullets and the defendant’s case). In this case, the state did not demonstrate any connection of the gun to Downs; it was found in McGirt’s bedroom and Downs slept in the living room and used Cooper’s bedroom.

We do not find the admission of testimony about the gun to be harmless error. There is a “reasonable possibility that the error affected the verdict.” Cooper v. State, 48 So.3d 42, 43 (Fla.2010) (quoting State v. DiGuilio, 491 So.2d 1129 (Fla.1986)). After the shooting, the victim did not immediately identify Downs as the shooter. Holes permeated the witnesses’ stories. The jury wanted to see both Cooper’s and the victim’s depositions, which had been used to establish that their stories had changed over time. There was evidence that the shooter was wearing Cooper’s clothing. There was the suggestion that there may have been more to the case than the victim disclosed in his testimony. Finally, in closing argument, the prosecutor portrayed the improperly admitted evidence as indicative of guilt. See Zama v. State, 54 So.3d 1075, 1078 (Fla. 4th DCA 2011) (holding that it was error for the state to present evidence that defendant possessed a bullet-proof vest and then argue in closing that the vest was not relevant, because the “fact that he possessed a bullet-proof vest, appellant argues, unfairly prejudiced him as it served no purpose but to inflame the jury and suggest he was of bad character and had a propensity for gun violence”).

Reversed and remanded for a new trial.

STEVENSON and TAYLOR, JJ., concur.


text:
    Antonio HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2387.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

We affirm the order revoking appellant’s probation and imposing sentence, but we remand for entry of a written order of revocation of probation specifying the condition(s) appellant was found to have violated. See Petrie v. State, 980 So.2d 1209 (Fla. 4th DCA 2008).

WARNER, POLEN and LEVINE, JJ., concur.


text:
    Eric Leonard KNOWLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4629.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.

      Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether a prior conviction for battery on a law enforcement officer, pursuant to section 784.07, Florida Statutes, is a sufficient predicate for a violation of section 784.03(2), Florida Statutes, felony battery, which requires one prior conviction for “battery, aggravated battery, or felony battery.” We find that under this particular statute, the prior conviction for battery on a law enforcement officer would meet the requisite requirement to sustain a conviction for felony batteiy.

Appellant was charged with felony battery with a prior conviction as well as false imprisonment. The jury, after the first phase of the trial, found appellant guilty of battery. The trial court then proceeded to a phase two proceeding to determine if appellant had been previously convicted of “battery, aggravated battery, or felony battery” as enumerated in section 784.03(2). The jury found appellant had been previously convicted of a “battery, aggravated battery, or felony battery,” and appellant was convicted and sentenced for the crime of felony battery. As a result, this appeal ensues.

This appeal presents an issue of statutory interpretation, thus we review the conviction under the de novo standard. D.A. v. State, 11 So.3d 423, 423 (Fla. 4th DCA 2009).

Appellant argues that a prior conviction for battery on a law enforcement officer cannot be a predicate offense for felony battery since the statute does not explicitly enumerate battery on a law enforcement officer as one of the predicate crimes. The statute merely lists “battery, aggravated battery, or felony battery” as predicates.

It is clear that the crime of battery on a law enforcement officer can be a predicate offense for a felony battery charge, since the battery on a law enforcement officer “involves the exact same conduct as misdemeanor batteiy, the only difference being the victim’s status.” State v. Hearns, 961 So.2d 211, 219 (Fla.2007). The offense alleged in a batteiy on a law enforcement officer is effectively a misdemeanor charge of battery reclassified to a felony due to the status of the victim. Section 784.07(2) states that “[w]henever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... the offense for which the person is charged shall be reclassified as follows: ... (b) In the case of battery, from a misdemeanor of the first degree to a felony of the third degree.”

In State v. Warren, 796 So.2d 489 (Fla. 2001), the Florida Supreme Court, construing a prior version of section 784.03(2), determined that a conviction for aggravated battery could be one of the predicate convictions for a felony battery charge where the prior statute required “two pri- or convictions for battery.” The Court succinctly concluded that, for the purpose of the successor felony battery statute, “[a]n aggravated battery is a battery.” Id. at 490.

In summary, we find that a prior conviction for battery on a law enforcement officer constitutes a “battery” under section 784.03(2) and, as such, may serve as a predicate offense for a felony battery charge. We, thus, affirm the conviction and sentence.

Affirmed.

WARNER and POLEN, JJ., concur.

      . The issue would be less clear if the predicate conviction was not for a battery that was reclassified as a felony based on the victim's status. Sections 784.075 and 784.076, Florida Statutes, for example, list the conduct as a separate felony and do not reclassify the battery charge to a felony based on the victim's status. Additionally, these statutes are not listed as predicate crimes for a felony battery charge in section 784.03(2).


text:
    Eric Diaz GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4636.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Eugene v. State, 53 So.3d 1104 (Fla. 4th DCA 2011).

MAY, C.J., WARNER and POLEN, JJ., concur.


author: PALMER, J.

text:
    Billy B. BRADY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3991.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.

      Michael R. Ufferman, of Michael Uffer-man Law Firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Billy B. Brady, Jr., (defendant) appeals the order entered by the trial court summarily denying his motion to correct illegal sentence filed pursuant to rule 3.800(a) of the Florida Rules of Criminal Procedure. We affirm the trial court’s denial of the defendant’s double jeopardy claim as successive, but reverse the trial court’s denial of the defendant’s claim that his conviction was improperly reclassified.

The defendant was convicted of committing the crime of aggravated battery on a law enforcement officer with a special finding that he carried a firearm. The trial court sentenced the defendant to an upward departure sentence of a term of life imprisonment.

The defendant appealed his judgment and sentence, arguing among other things, that his double jeopardy rights were violated when he was retried on the charge of aggravated battery of a law enforcement officer because the trial court had reversed an earlier conviction for attempted manslaughter. We affirmed the defendant’s judgment and sentence. See Brady v. State, 717 So.2d 112 (Fla. 5th DCA 1998).

The defendant later filed a motion pursuant to rule 3.850 of the Florida Rules of Criminal Procedure in which he again alleged that his conviction was obtained in violation of the protection against double jeopardy. The trial court denied the motion and we affirmed that ruling. See Brady v. State, 787 So.2d 871 (Fla. 5th DCA 2001).

The defendant then filed the instant motion to correct illegal sentence alleging that his sentence is illegal for two reasons. First, the defendant alleges that his conviction should not have been reclassified, and thus his sentence enhanced, based on his use of a firearm because the jury was instructed regarding both the great bodily harm option and the deadly weapon option of aggravated battery and returned a general verdict thereon. The defendant maintains that it was error for the trial court to reclassify the degree level on the battery conviction because, if the jury found that his aggravated battery conviction arose from his use of a deadly weapon (and not because he inflicted great bodily harm), then his use of the weapon was an essential element of the battery conviction and reclassification would be prohibited. Second, the defendant maintains that his double jeopardy rights were violated when the trial court sentenced him for an offense greater than .a second-degree felony because, in an earlier opinion, this court held that he could be retried for the lesser offense of attempted manslaughter with a firearm (a second-degree felony). See State v. Brady, 685 So.2d 984 (Fla. 5th DCA 1997). The trial court summarily denied the motion and this appeal followed.

The defendant’s double jeopardy claim is barred by the law of the case doctrine because this issue was addressed and rejected on direct appeal. State v. McBride, 848 So.2d 287 (Fla.2003).

As for the defendant’s claim that it was error for the trial court to reclassify his aggravated battery conviction, the State concedes that reclassification is not permitted when a defendant is convicted of aggravated battery where it is not clear whether the defendant was found guilty based on a finding that he caused great bodily harm or that he used a deadly weapon. See Sampson v. State, 41 So.3d 366 (Fla. 1st DCA 2010). However, the State urges affirmance, alleging that this case “was always about great bodily harm and permanent disfigurement.” We conclude that the case of Montgomery v. State, 704 So.2d 548 (Fla. 1st DCA 1997), supports the defendant’s claim that it was improper for the trial court to reclassify his aggravated battery conviction because the jury rendered a general verdict after being instructed on both types of aggravated battery.

In Montgomery, the defendant argued that, due to the nature of the jury’s general verdict, reclassification of his conviction was improper because it was not clear that the jury found him guilty of aggravated battery causing great bodily harm. The First District agreed, explaining:

Section 775.087(1) permits reclassification and the consequential enhancement of penalties for the crime of aggravated battery causing great bodily harm when a weapon is used to commit the crime. Lareau v. State, 573 So.2d 813 (Fla. 1991). Before a conviction for aggravated battery may be reclassified pursuant to section 775.087, the jury must make a factual finding that the defendant committed the crime while using a firearm. State v. Tripp, 642 So.2d 728 (Fla. 1994)....
The verdict herein establishes only that Montgomery was convicted of aggravated battery with a firearm. The circumstances herein are similar to the facts in Moore v. State, 616 So.2d 168 (Fla. 4th DCA 1993). Therein, the trial court instructed the jury on both aggravated battery based on great bodily harm and aggravated battery based upon the use of a deadly weapon. The jury found the defendant guilty of aggravated battery with a firearm, and the trial court reclassified the conviction to a first degree felony. On appeal, the court held that, since the use of a firearm was an essential element of the offense, the trial court erred in enhancing the sentence. Id. at 168. See also Randolph v. State, 591 So.2d 279 (Fla. 5th DCA 1991) (enhancement not proper where the verdict form did not clearly show whether the jury found aggravated battery by virtue of infliction of great bodily harm or by virtue of the use of a weapon ...).
Since it is possible that Montgomery was convicted of a crime in which the use of a weapon or a firearm is an essential element of the offense, it was improper for the trial court to reclassify the second-degree felony to a first-degree felony. We therefore must reverse and remand for resen-tencing.

Montgomery, 704 So.2d at 550-51 (emphasis added).

Here, the defendant was charged with aggravated battery causing great bodily harm. However, the trial court instructed the jury on both the great bodily harm option and the deadly weapon option of the aggravated battery charge, and the jury returned a general verdict of “guilty as charged”. Regardless of what language is contained in the information, if the jury is instructed on both types of aggravated battery and returns a verdict of “guilty as charged,” then reclassification is not permissible.

In Hernandez v. State, 30 So.3d 610 (Fla. 3d DCA 2010), the Third District, in a case in which the information charged only the great bodily harm form of aggravated battery, held that the reclassification of the charge from a second-degree felony to a first-degree felony was improper when the State’s closing argument, the jury instructions, and the verdict form referred to both forms of aggravated battery. As noted by the Third District: “The jury may have intended to find Hernandez guilty of the using-firearm form of aggravated battery. Therefore, the trial court erred in reclassifying the aggravated battery to a first degree felony.” Hernandez, 30 So.3d at 612. The Hernandez court held that the reclassification resulted in an illegal sentence.

The defendant’s conviction for the second-degree felony of aggravated battery was reclassified to a first-degree felony pursuant to the provisions of section 784.07 of the Florida Statutes (1995). Under the law in effect in 1995, the year when Brady committed the crime, the maximum penalty for a first-degree felony was a thirty-year prison sentence. See § 921.001(5), Fla. Stat. (1995). Thus, the defendant’s life sentence must be reversed and this case remanded to the trial court to resentence the defendant accordingly.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . See § 784.045, Fla. Stat. (1995).

      . The court must apply the law in effect at the time the crime was committed. Allen v. State, 383 So.2d 674, 675 (Fla. 5th DCA 1980).


author: SAWAYA, J.

text:
    DEPARTMENT OF REVENUE, Child Support, Etc., Appellant, v. Paul S. MARTIN, Appellee.
    No. 5D10-2390.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for Appellant.
    Paul S. Martin, Tavares, pro se.
   SAWAYA, J.

The Department of Revenue, on behalf of Ericka Garnto, appeals the Final Judgment on Petition for Enforcement of Administrative Support Order entered by the circuit court pursuant to the Department’s request for an order enforcing its Administrative Support Order. The Department asserts that the court erred in including in its Final Judgment a provision stating that the Final Judgment supersedes the Administrative Support Order. We agree.

The Department obtained the Administrative Support Order requiring the father to pay child support of “$428.29 per month and retroactive support of $43.00 per month for a total monthly support obligation of $471.29. When the total retroactive obligation of $11,135.54 has been fully paid, the monthly obligation will be $428.29.” That order was not appealed. The Department subsequently filed its Petition for Enforcement of Administrative Support Order in the circuit court after the father failed to make the ordered payments. The hearing on the petition was held before a hearing officer, who agreed with the Department’s request that the enforcement order not supersede the administrative order. After the hearing concluded, the hearing officer issued a report, which was incorporated into the Final Judgment.

The report shows that the hearing officer, contrary to the intention expressed at the hearing, recommended that the Final Judgment supersede the Administrative Support Order. Other than that fact, the hearing officer recommended as the Department had requested, i.e., that the father be ordered to comply with the identical terms and provisions of the original Administrative Support Order. Therefore, pursuant to section 409.2563(10)(b), the Final Judgment did not supersede the Administrative Support Order. This statute provides:

(b) An administrative support order rendered under this section has the same force and effect as a court order and may be enforced by any circuit court in the same manner as a support order issued by the court, except for contempt. If the circuit court issues its own order enforcing the administrative support order, the circuit court may enforce its own order by contempt.... Enforcement by the court, without any change by the court in the support obligations established in the administrative support order, does not supersede the administrative support order or affect the department’s authority to modify the administrative support order as provided by subsection (12). An order by the court that requires a parent to make periodic payments on arrearages does not constitute a change in the support obligations established in the administrative support order and does not supersede the administrative order.

(Emphasis added). In Department of Revenue ex rel. Gauthier v. Hoover, 40 So.3d 99, 102 (Fla. 5th DCA 2010), this court explained that “[a] superseding order, as contemplated by section 409.2563(10)(c), is an order issued by a circuit court that changes the support obligations prospectively and which, from its date of rendition, thereafter governs....”

We conclude that because the Final Judgment did not change any term of the support obligation contained in the Administrative Support Order, the Final Judgment is not a superseding order. Accordingly, we strike that part of the Final Judgment making it a superseding order. In all other respects, the Final Judgment is affirmed.

AFFIRMED as modified.

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

      . There is no appearance by the father.

      . Section 409.2563(10)(c) defines when a circuit court order does supersede an administrative support order:
      (c) A circuit court of this state, where venue is proper and the court has jurisdiction of the parties, may enter an order prospectively changing the support obligations established in an administrative support order, in which case the administrative support order is superseded and the court's order shall govern future proceedings in the case. Any unpaid support owed under the superseded administrative support order may not be retroactively modified by the circuit court, except as provided by s. 61.14(l)(a), and remains enforceable by the department, by the obligee, or by the court. In all cases in which an administrative support order is superseded, the court shall determine the amount of any unpaid support owed under the administrative support order and shall include the amount as arrearage in its superseding order.
      (Emphasis added).


text:
    Timothy THOMAS, III, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1972.
    District Court of Appeal of Florida, Fifth District.
    July 15, 2011.

      Robert Wesley, Public Defender and Chalón Carroll Young, Assistant Public Defender, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF09-13807-0, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

PALMER, LAWSON and COHEN, JJ„ concur.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Adelmis DELRIO a/k/a Adelmis Llerena, Appellee.
    No. 2D10-3600.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Daniel P. Fischetti of Weed and Associates, P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

The State appeals the trial court’s order granting Adelmis Delrio’s motion to suppress evidence obtained pursuant to a search warrant. In State v. Delrio, 56 So.3d 848 (Fla. 2d DCA 2011), a case involving Mr. Delrio’s alleged coperpetrators and the same search warrant at issue here, this court reversed the order granting suppression. Because the State challenges the suppression order in Mr. Delrio’s case on the same grounds that it challenged the suppression order in the alleged coperpe-trators’ case, we reverse on the same grounds articulated by this court in that case. See id.

Reversed and remanded.

DAVIS and WALLACE, JJ., Concur.


author: KHOUZAM, Judge.

text:
    Iralett Sha’ron DOUGLAS, Appellant, v. Doyle Dawana JOHNSON, Appellee.
    No. 2D11-858.
    District Court of Appeal of Florida, Second District.
    July 15, 2011.

      Lorena L. Kiely, Esq., Tampa, for Appellant.
    Barbara Twine-Thomas of Barbara Twine-Thomas, P.A., Tampa, for Appellee.
   KHOUZAM, Judge.

Iralett Sha’ron Douglas, the Mother, appeals the January 14, 2011, order requiring her to immediately return her son, a minor child, to the custody of Doyle Dawana Johnson, the Father, in Tampa, Florida. The circuit court entered this nonfinal order after the Father filed a motion for emergency order requiring the child to be returned from Tennessee to Florida. We must reverse and remand for a full eviden-tiary hearing because the Mother was denied procedural due process — the circuit court did not give her the opportunity to raise and develop the issue of lack of subject matter jurisdiction.

On December 21, 2010, the Father filed a “petition to establish time sharing and support of minor child,” a Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) affidavit, and a “motion for emergency order requiring the child be returned to Hillsborough County, Tampa, Florida.” The petition stated that the child was born in Tampa on October 6, 2005, and had continuously resided there with the paternal grandparents since birth. The parents were married but did not live together — the Mother lived in Tennessee and the Father intended to continue living in Tampa with the child and grandparents. The Father requested sole parental responsibility and primary time sharing.

The Father’s motion for emergency order alleged that the Mother and maternal grandmother had secretly taken the child away from his home in Tampa and brought him to Tennessee. The Father requested that the court enter an emergency order requiring the Mother to return the child to Tampa and to the temporary custody of the Father until a hearing regarding time sharing could be held. On December 22, 2010, the circuit court found that the Father’s motion was not an emergency. But then on January 3, 2011, after the Father had filed a motion for reconsideration, the court entered an emergency order requiring the child be returned to the Father in Tampa and setting a hearing for January 14.

The Mother filed a “motion to strike all pleadings and dismiss case.” First, she argued that the circuit court lacked jurisdiction because she filed a “petition to set support” in Tennessee on September 20, 2010. She also alleged that the child had lived in Tennessee with her since January 6, 2009; that both sets of grandparents had cared for the child in Tampa; and that it was understood that the child was just visiting the grandparents until the parents reconciled. Ultimately, the Mother requested that the court strike the Father’s pleadings and dismiss the case so that it could be resolved in Tennessee.

At the January 14 hearing, the judge stated that each side would have ten minutes because he was in the middle of a trial and was dealing with two other emergencies. The Mother’s counsel advised the court that she had just been retained on January 9 and that the Mother was available by phone although it had not been arranged. The maternal grandmother was also available to testify.

The Father called several witnesses to establish that the child attended a prekindergarten program, received medical treatment, and lived with the grandparents in Tampa. The parties briefly presented arguments. But the court did not allow the Mother’s counsel to present witnesses. The judge stated that the facts that the child lived in Florida and attended school here were “undisputed” and “unassailable.” The Mother’s counsel requested to put on witnesses to show that the child had been living in Tennessee with the parents and had merely been visiting both sets of grandparents in Florida. She also asked for more time for the Mother to hire counsel in Florida. The court denied both requests, telling the Mother’s counsel that her “argument [did] not fly” and that the case was “just black and white.” The court told the Mother’s counsel that she could put on witnesses if they could dispute the fact that the child attended prekindergarten in Florida: “[C]all somebody, and the only word I want to hear is that this principal [who testified that the child attended prekindergarten in Florida] is a liar. That is the only testimony that I want.” Ultimately, the court entered an order requiring the Mother to return the child to Florida to the temporary custody of the Father.

We review the question of whether a party was denied the opportunity to be heard for an abuse of discretion. See Smith v. Smith, 964 So.2d 217, 218 (Fla. 2d DCA 2007). Section 61.518, Florida Statutes (2010), provides that “[b]efore a child custody determination is made under this part, notice and an opportunity to be heard ... must be given to all persons entitled to notice.” When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process. L.C. v. A.M.C., 2011 WL 1775891 (Fla. 2d DCA 2011) (addressing a domestic violence injunction); Smith, 964 So.2d at 219 (addressing a domestic violence injunction); Smith v. Crider, 932 So.2d 393, 398 (Fla. 2d DCA 2006) (addressing a temporary custody modification). Here, the trial court abused its discretion by denying the Mother an opportunity to present witnesses or evidence at the hearing. The Mother’s right to procedural due process was violated. Accordingly, we must reverse and remand for a full evidentiary hearing where the Mother is given the opportunity to raise and develop the issue of lack of jurisdiction.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


text:
    Willie James ODOM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3346.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Willie James Odom, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Demetrice WALLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3459.
    District Court of Appeal of Florida, First District.
    July 15, 2011.
    Demetrice Waller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


author: SCHWARTZ, Senior Judge.

text:
    Diana Simon GONZALEZ, Appellant, v. STATE FARM FLORIDA INSURANCE COMPANY, Appellee.
    No. 3D10-2269.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.

      Alvarez, Carbonell, Feltman, Jimenez, & Gomez, and Paul B. Feltman, for appellant.
    Ubaldo J. Perez, Jr., P.A. and Elizabeth K. Russo and Susan S. Lerner, for appel-lee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The summary judgment entered below for the insurer on the ground that the insured had failed to comply "with the pre-suit requirements of the policy that, among other things, she provide a satisfactory proof of loss and submit to an examination under oath, is affirmed. See Edwards v. State Farm Florida Ins. Co., 64 So.3d 730 (Fla. 3d DCA 2011), and cases cited therein. In particular, we find no error or abuse of discretion in the trial court’s denial of insured’s request to “abate” the action, which was first made almost five years after the loss and only in the face of an imminent ruling against her at the hearing on the carrier’s motion for summary judgment. See Edwards, 64 So.3d 730 (Fla. 3d DCA 2011); Amica Mut. Ins. Co. v. Drummond, 970 So.2d 456, 459 (Fla. 2d DCA 2007); Starling v. Allstate Floridian Ins. Co., 956 So.2d 511, 513 (Fla. 5th DCA 2007); Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 301 (Fla. 4th DCA 1995); Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145, 146 (Fla. 3d DCA 1993).

Affirmed.


author: WALLACE, Judge. ALTENBERND, Judge,

text:
    John Alan CERNY, Jr., a/k/a John Alan Cerny, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5338.
    District Court of Appeal of Florida, Second District.
    July 22, 2011.

      James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

John Alan Cerny, Jr., appeals the order revoking his probation and his resulting sentences. Because the State failed to prove by a preponderance of the evidence the new law violation upon which the circuit court based the order revoking Mr. Cerny’s probation, we reverse.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

On August 8, 2007, Mr. Cerny entered guilty pleas to the charges in circuit court case numbers 07-CF-10918, 07-CF-14421, and 07-CF-14452 in exchange for sentences of eighteen months’ probation on the charges. Later, on January 10, 2008, Mr. Cerny entered a guilty plea to the charge in circuit court case number 07-CF-23328 for a sentence of thirty-six months’ probation. On the same day, the circuit court also sentenced Mr. Cerny in the three other cases to new terms of thirty-six months’ probation based upon Mr. Cerny’s admission to violating his probation in those cases. The circuit court designated Mr. Cerny’s terms of probation in each of the four cases to run concurrently.

On August 5, 2009, Mr. Cerny’s probation officer filed an affidavit of violation of probation alleging that Mr. Cerny had violated his probation in all four cases by committing four new law violations. The alleged new law violations were aggravated battery, domestic violence by strangulation, false imprisonment, and tampering with a witness. The State alleged that each of the four offenses stemmed from an incident occurring on July 29, 2009, involving Mr. Cerny and his father, John Cerny, Sr.

After a hearing on the alleged violations of probation, the circuit court concluded that the State failed to establish by a preponderance of the evidence that Mr. Cerny had committed the new law violations of domestic violence by strangulation, false imprisonment, and tampering with a witness. Accordingly, the circuit court dismissed the alleged violations of probation based upon those charges. Nevertheless, the circuit court found that Mr. Cerny had violated his probation by committing the new law offense of aggravated battery, and it revoked Mr. Cerny’s probation in all four cases based upon that new law violation. The circuit court imposed the maximum sentence of five years’ prison on each of Mr. Cerny’s underlying third-degree felonies. The circuit court also designated several of the sentences to run consecutively, with the result that Mr. Cerny received sentences totaling twenty years in prison. This appeal followed.

II. THE ARGUMENTS ON APPEAL

On appeal, Mr. Cerny makes two arguments. First, he argues that the circuit court erred in finding that he had violated his probation because (1) the State failed to prove that he committed the offense of aggravated battery and (2) the State relied exclusively on hearsay evidence to establish the alleged violation. Mr. Cerny concludes that the circuit court should have granted his motion to dismiss the alleged violation of probation at the conclusion of the State’s case. We need not discuss Mr. Cerny’s second argument because it is mooted by our disposition of his first argument.

III. THE STANDARD OF REVIEW AND OTHER PRELIMINARY MATTERS

Our review of an order of revocation of probation is for abuse of discretion. Boyd v. State, 1 So.3d 1186, 1187 (Fla. 2d DCA 2009). However, before the circuit court can exercise its discretion to revoke probation, the State must establish a violation of probation by the greater weight of the evidence. Id. Here, the State alleged — in pertinent part — that Mr. Cerny had committed the new law violation of aggravated battery. “The proper standard for finding a new law violation is whether a preponderance of the evidence establishes that the probationer committed the charged offense.... ‘Proof sufficient to support a criminal conviction is not required to support a judge’s discretionary order revoking’ probation.” Robinson v. State, 907 So.2d 1284, 1287 (Fla. 2d DCA 2005) (citations omitted) (quoting Robinson v. State, 609 So.2d 89, 90 (Fla. 1st DCA 1992)). Although hearsay is admissible in proceedings for revocation of probation, the circuit court may not base a revocation order solely upon hearsay evidence. Boyd, 1 So.3d at 1187.

IV.THE EVIDENCE PRESENTED AT THE HEARING

At the revocation hearing, the State established that Mr. Cerny and his father shared a home in Temple Terrace. Before the alleged incident, Mr. Cerny’s father had suffered a stroke. As a result, the father had trouble with communicating and walking.

The State presented the testimony of a sheriffs deputy. The deputy did not witness the incident that formed the basis for the charges. Instead, the deputy had been dispatched to a neighbor’s house on July 29, 2009, the date of the alleged incident. There, the deputy observed and spoke with Mr. Cerny’s father, the alleged victim of the aggravated battery. When the deputy arrived at the neighbor’s house, the father had several injuries to his arms and a laceration to the back of his head. Blood from the injuries was evident. In addition, the father appeared to be nervous and frightened.

The deputy testified that the abrasions on the father’s arms appeared to have been sustained in a fall and that the small cuts on his arms looked like he had been struck with an object. The father told the deputy that he had sustained the injuries to his arms in an incident with Mr. Cerny. But when the prosecutor asked the deputy what the father had told her about how he had incurred the injuries, the circuit court sustained defense counsel’s hearsay objection. Thus the State was unable to elicit any hearsay evidence from the deputy concerning the father’s account of the incident.

After speaking with the father, the deputy went to the shared residence and observed what she assumed to be blood from the father on the walls, on the back door, and throughout the house. She took photographs of the father’s injuries and the scene at the house. The State introduced the photographs into evidence at the hearing.

The deputy did not see Mr. Cerny on the day of the incident, but she did see him the next day when he was arrested. At that time, she did not observe that Mr. Cerny had any injuries. The deputy learned that Jeffery Woods was present during the alleged incident. She testified that she interviewed Mr. Woods, but she did not testify concerning the substance of his account of the incident.

The State also called Mr. Cerny’s father to testify. After the father had begun to testify, the defense challenged the father’s competence as a witness. The circuit court agreed that the father was not competent to testify and struck his testimony. After the circuit court struck the father’s testimony, the State rested without presenting any additional evidence concerning the alleged incident. Next, Mr. Cerny moved to dismiss the alleged violation of probation on the ground that the State’s evidence was insufficient to establish a violation. The circuit court reserved ruling on the defense motion.

Mr. Cerny presented the testimony of the eyewitness, Jeffery Woods. Mr. Woods testified that during an argument between Mr. Cerny and his father, Mr. Cerny threw a telephone against a wall. The father then charged at Mr. Cerny and threw him against some cabinets. The collision with the cabinets split a scar over Mr. Cerny’s eye, which started bleeding. According to Mr. Woods, Mr. Cerny never struck his father or hit him with a sharp object. Instead, Mr. Cerny held his father’s arms to calm him down. Thus Mr. Woods identified the father rather than Mr. Cerny as the aggressor in the incident.

Mr. Woods also explained that the blood on the father’s arms came from old injuries that opened during the encounter. Mr. Woods did not see a laceration on the back of the father’s head, but he suggested that such a laceration could have occurred when the father fell in the shower. Mr. Woods testified that the blood at the house probably came from Mr. Cerny’s eye and from the father’s old wounds.

Y. THE CIRCUIT COURT’S RULING

At the conclusion of the case, Mr. Cerny renewed his motion to dismiss, arguing that the State had failed to present any evidence to establish that a crime had occurred. The circuit court found Mr. Woods’ testimony to be incredible but accepted his testimony to the extent that it established that there was an altercation between Mr. Cerny and his father. Noting that there was an unexplained injury to the back of the father’s head, the circuit court stated, “I’m going to find that [Mr. Cerny] hit him or pushed him back and hit him in the head. I don’t have any doubt that that occurred.” The circuit court denied the defense motion to dismiss the alleged violation of probation based upon the commission of an aggravated battery and concluded that the State had established that Mr. Cerny had violated his probation by committing an aggravated battery on his father.

VI. DISCUSSION

Mr. Cerny’s father’s statement to the deputy that he received his injuries in an incident involving his son was in evidence at the revocation hearing. With regard to this hearsay testimony, Mr. Cerny devotes considerable attention on appeal to discussing cases that address the use of hearsay together with direct evidence to prove a probationer’s commission of a new law violation. But a review of the record reveals that the State did not present any proof — through either hearsay or direct evidence — that any kind of battery occurred. To establish that a battery occurred, the State had to show that Mr. Cerny intentionally touched or struck his father against his will or intentionally caused him bodily harm. See § 784.08(1), Fla. Stat. (2009). There was no such evidence. Similarly, to prove that an aggravated battery occurred, the State had to show that in committing a battery against his father, Mr. Cerny intentionally or knowingly caused his father great bodily harm, permanent disability, or permanent disfigurement. See § 784.045(l)(a)(l). Alternatively, the State had to show that in committing a battery against his father, Mr. Cerny used a deadly weapon. See § 784.045(l)(a)(2). Once again, there was no such evidence.

Significantly, there was no evidence to support the circuit court’s finding that Mr. Cerny hit or pushed his father back and hit him in the head. We recognize that the circuit court could properly find that Mr. Woods’ testimony for the defense was not worthy of belief. See Shaw v. Shaw, 384 So.2d 13, 16 (Fla.1976). But the circuit court’s decision to reject substantially all of Mr. Woods’ testimony as incredible did not cure the deficiencies in the State’s proof. Because the State failed to establish by a preponderance of the evidence that Mr. Cerny committed an aggravated battery on his father, the circuit court erred in revoking Mr. Cerny’s probation based on that alleged new law violation. See Robinson, 907 So.2d at 1287.

VII. CONCLUSION

For the foregoing reasons, we reverse the order revoking Mr. Cerny’s probation and the resulting sentences. Under the circumstances of this case, double jeopardy does not bar a second revocation proceeding on remand based on the filing of a new affidavit alleging the same violations, see Boyd v. State, 1 So.3d 1186, 1188 (Fla. 2d DCA 2009); Reeves v. State, 366 So.2d 1229, 1230 n. 2 (Fla. 2d DCA 1979); Scott v. State, 937 So.2d 746, 748-49 (Fla. 4th DCA 2006), provided that Mr. Cerny’s probationary terms have not expired, see Hernandez v. State, 33 So.3d 143, 145 (Fla. 2d DCA 2010); Humbert v. State, 933 So.2d 726, 728 (Fla. 2d DCA 2006); Sharpston v. State, 895 So.2d 1225, 1226 (Fla. 2d DCA 2005).

Reversed and remanded.

DAVIS, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge,

Specially concurring.

I concur in the court’s opinion and write only to make three observations. First, although the case law often discusses abuse of discretion as an appropriate standard of review for orders revoking probation, that standard is appropriate only after the State has presented a prima facie case allowing the trial court to make a decision to revoke probation. The actual standard of review in this setting would seem to require this court to determine whether there was competent, substantial evidence presented at the evidentiary-hearing on the violation — including the hearsay evidence that is admissible in such a context — to authorize a revocation. See Gaddy v. State, 23 So.3d 1258, 1259 (Fla. 2d DCA 2009) (holding that the State, which presented only hearsay evidence, failed to prove by competent, substantial evidence that the defendant violated a condition of his probation). Unfortunately, the State failed to present a prima facie case.

Second, it is entirely possible that the State failed to present a prima facie case because the trial court sustained an objection to the hearsay testimony of the deputy concerning the father’s statements about the events in the house. Although that evidentiary ruling would have been correct in most hearings, because hearsay can be admissible in a violation hearing, I am inclined to believe that the trial court should have received this testimony and then determined at the end of the hearing whether it could be used in conjunction with direct evidence to support an order of revocation. In fairness to the trial court, the assistant state attorney at the violation hearing did not make this argument.

Finally, although double jeopardy will not bar a second proceeding, unless the terms of probation were somehow stayed during this appeal, the thirty-six-month terms of probation expired in January 2011. This appeal was filed in November 2009. Despite a heavy caseload, this court can still resolve some appeals within a year. But the limited budgets in both the public defender’s office and the office of the attorney general are now requiring those offices to seek extensions in many cases to handle their extensive workload. As a result of the extensions granted to both sides, the State did not file its answer brief until February 9, 2011.

      . Mr. Cerny received a sentence of time served in case number 07-CF-10918 on a charge of driving while license was suspended or revoked. The circuit court adjudicated Mr. Cerny to be guilty on each of the offenses in all three cases.

      . The circuit court adjudicated Mr. Cerny to be guilty of the offenses charged in case number 07-CF-23328.


author: MARSTILLER, J.

text:
    CITY OF PANAMA CITY and PGCS, Appellants, v. Stephanie BAGSHAW, Appellee.
    No. 1D10-6703.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      John C.E. Sung and George A. Helm, III, Lake Mary, for Appellants.
    John P. Moneyham, Panama City, for Appellee.
   MARSTILLER, J.

In this workers’ compensation appeal, the City of Panama City and Preferred Governmental Claim Solutions (E/C) challenge an order of the Judge of Compensation Claims (JCC) awarding medical benefits and finding the E/C responsible for Claimant’s attorney’s fees and costs. At issue are whether, under section 440.13(3)(i), Florida Statutes (2002), an E/C must authorize or deny a written request for treatment within ten days of receiving the request, and whether failing to timely respond precludes an E/C from later contesting the causal connection between the compensable injury and the treatment sought. The JCC ruled that section 440.13(3)0) required the E/C to either authorize or deny Claimant’s requests for left knee arthroscopy and Su-partz injections within the ten-day response period. The JCC also concluded that the E/C waived its right to challenge Claimant’s claims because it did not timely respond to requests from Claimant’s authorized treating physician for the treatment. We find the JCC incorrectly construed section 440.13(3)0). Therefore, we reverse and remand for further proceedings.

Our decision in Elmer v. Southland Corp./7-11, 5 So.3d 754 (Fla. 1st DCA 2009), neatly addresses the issues raised in this appeal. In Elmer we were asked to decide whether the E/C was precluded from challenging the medical necessity of the requested treatment because the E/C failed to timely respond, under sections 440.13(3)(d) and (3)(i), Florida Statutes (2002). Reading the plain language of paragraph (3)(d), and construing paragraphs (3)(d) and (3)(i) together, we held that “an E/C who fails to comply with the statutory requirement forfeits the right to contest whether the referral is reasonably and medically necessary.” Id. at 756. In the instant case, the JCC ruled that under section 440.13(3)(i), an E/C must either authorize or deny the requested treatment within ten days. As we explained in Elmer, however, “the statutes in question do not require an E/C to authorize a referral request by an authorized treating doctor within the time specified, [but] they do require an E/C to respond.” Id. Indeed, paragraph (3)(i) contemplates that an E/C may seek an opinion from an expert medical advisor (EMA) — which could take more than 10 days — before making a final determination on the referral request.

We also reaffirmed in Elmer that sections 440.13(2)(a) and (2)(c) “provide a caveat that any medical care provided under section 440.13 must be medically necessary as a result of a compensable injury.” Id. (emphasis added). In other words, both medical necessity and a causal connection between the compensable injury and the requested treatment must exist. Therefore, even if under section 440.13(3)(i) an E/C waives its right to question the medical need for requested treatment, it may yet contend that the claimant’s compensable injury is not the reason treatment is needed. See City of Pembroke Pines v. Ortagus, 50 So.3d 31, 32 (Fla. 1st DCA 2010) (explaining that employer’s duty under section 440.13(2)(a) to furnish medically necessary care ‘“for such period as the nature of the injury or the process of recovery may require’” obliges E/C to pay for claimant’s injury-related treatment “as long as the condition remains the major contributing cause of his need for medical care”); Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613, 614 (Fla. 1st DCA 2009) (concluding that after compensability of injury is established, E/C can contest specific treatment request based on lack of causal connection to compensable injury). That is precisely what the E/C in this ease sought to do based on the appointed EMA’s opinion. The JCC erred in concluding that the E/C waived its right to raise the challenge.

For the foregoing reasons, we REVERSE the appealed Final Compensation Order Awarding Medical Benefits, Attorney’s Fees and Costs, and REMAND this case for further proceedings consistent with this opinion.

WETHERELL and RAY, J.J., concur.

      . The E/C does not challenge the JCC's finding as to the untimely response.

      . A carrier must respond, by telephone or in writing, to a request for authorization by the close of the third business day after receipt of the request. A carrier who fails to respond to a written request for authorization for referral for medical treatment by the close of the third business day after receipt of the request consents to the medical necessity for such treatment. All such requests must be made to the carrier. Notice to the carrier does not include notice to the employer.

      .Notwithstanding paragraph (d), a claim for specialist consultations, surgical operations, physiotherapeutic or occupational therapy procedures, X-ray examinations, or special diagnostic laboratory tests that cost more than $1,000 and other specialty services that the agency identifies by rule is not valid and reimbursable unless the services have been expressly authorized by the carrier, or unless the carrier has failed to respond within 10 days to a written request for authorization, or unless emergency care is required. The insurer shall not refuse to authorize such consultation or procedure unless the health care provider or facility is not authorized or certified or unless an expert medical advisor has determined that the consultation or procedure is not medically necessary or otherwise com-pensable under this chapter. Authorization of a treatment plan does not constitute express authorization for purposes of this section, except to the extent the carrier provides otherwise in its authorization procedures. This paragraph does not limit the carrier's obligation to identify and disallow overutilization or billing errors.


text:
    Jerette LUCAS, Appellant, v. ADT SECURITY INC./SEDGWICK CMS, Appellees.
    No. 1D10-2094.
    District Court of Appeal of Florida, First District.
    July 22, 2011.

      Jonathan B. Israel of Harris, Guidi, Ros-ner, Dunlap & Rudolph, P.A., Jacksonville, for Appellant.
    Grant D. Petersen of Ogletree, Deakins, Nash, Smoak & Stewart, Tampa, for Ap-pellees.
   PER CURIAM.

In this workers’ compensation case, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying benefits on the ground she violated section 440.105, Florida Statutes (2006), by making false or misleading statements for the purpose of obtaining workers’ compensation benefits. Claimant also challenges the JCC’s findings in the alternative that she is not entitled to temporary total disability (TTD) benefits or temporary partial disability (TPD) benefits. For the reasons expressed below, we reverse the finding of fraud or misrepresentation, and reverse the denial of TTD benefits, but affirm the denial of TPD benefits.

It is illegal for any person to make “any false, fraudulent, or misleading oral or written statement” for the purpose of obtaining workers’ compensation benefits. § 440.105(4)(b), Fla. Stat. (2006). An employee found to have knowingly or intentionally done so is not entitled to benefits. § 440.09(4)(a), Fla. Stat. (2006). Here, the JCC found, “Claimant intentionally or knowingly has made numerous false and misleading statements with regards to the extent of her current injuries and which were made for the purpose of obtaining workers’ compensation benefits.” He continued:

These statements include reporting pain complaints grossly out of proportion to the physical findings on examination and diagnostic studies, by her reporting non-organic physical signs including collapsing ankle weakness in the face of a normal MRI, by her posturing and cog wheeling, and by her persistent attempts to be placed on TTD status. This also includes her evasiveness with Dr. Graham-Smith. While no one example in and of itself may rise to the level to support the EC’s fraud defense, taken together, they present an overwhelming pattern of statements, behavior, and conduct that cannot be innocently explained nor ignored by the undersigned.

The items listed are not all “statements,” however, and the actual statements listed are not provably false or misleading. Claimant’s “attempts to be placed on TTD status” and reports of pain were statements, but they are not provably false or misleading. The E/C did not submit, for example, evidence that Claimant actually did want to continue to work despite her request for TTD status, or some objective method of measuring the subjective phenomenon of pain and proving Claimant’s reports false.

Claimant’s “posturing and cog wheeling” were not oral or written statements, but behavior identical to behaviors captured on surveillance in Dieujuste v. J. Dodd Plumbing, Inc., 3 So.3d 1275 (Fla. 1st DCA 2009), which this court found could not serve as the predicate for disqualification from benefits under sections 440.09 and 440.105. In other words, because there is no evidence in the record that Claimant told anyone she could or could not perform a certain behavior that her actions belied, there is no basis for a finding of fraud.

The JCC’s finding that Claimant “report[ed] non-organic physical signs including collapsing ankle weakness” is not supported by the record. Dr. Graham-Smith’s medical records indicate he “found” collapsing ankle weakness, that is, found it on examination, and Dr. Graham-Smith’s testimony on the matter consisted of his reading from his note. Although the transcription shows Dr. Graham-Smith actually said while reading, “[tjhere was collapsing weakness of both ankles,” there is no evidence that Claimant made an oral or written statement that she had such weakness.

Perhaps anticipating a challenge to his finding of misrepresentation, the JCC made alternative findings denying TTD and TPD benefits. TTD benefits are payable where a claimant has not reached maximum medical improvement (MMI) and is not yet released to work. § 440.15(2), Fla. Stat. (2006). TPD benefits are payable where a claimant can show she has not reached MMI and “the medical conditions resulting from the accident create restrictions on the injured employee’s ability to return to work.” § 440.15(4), Fla. Stat. (2006). As part of establishing entitlement to TPD benefits, “[a] claimant must show a causal connection between his or her injury and a subsequent wage loss.” Arnold v. Fla.’s Blood Ctrs., Inc., 949 So.2d 242, 247 (Fla. 1st DCA 2007).

Here, the JCC denied TTD benefits based on his acceptance of Dr. Chapa’s testimony that Claimant reached MMI with no permanent impairment or work restrictions on March 7, 2007, over that of Dr. Graham-Smith because “there [are] no objective findings upon which Dr. Graham-Smith had to base [sic] his opinion.” The JCC also denied TPD benefits, finding that Claimant failed to prove a causal connection between her work injury and her subsequent wage loss, specifically because she had no work restrictions once she left her employment on February 17, 2007, after Dr. Curtis placed her at MMI with no permanent impairment as of February 9, 2007.

The record does not support the JCC’s findings of fact. Claimant had “no-work slips” from Dr. Graham-Smith that applied from April 3, 2007, until June 27, 2007. Even though the JCC may have been entitled to reject Dr. Graham-Smith’s medical opinion, the fact of the no-work slips remains. Because Claimant did not have notice that she was able to work during the time her no-work slips excused her from work, Claimant was entitled to TTD benefits from April 3 to June 27. See Cocho v. Continental Baking, 648 So.2d 1203, 1204 (Fla. 1st DCA 1995) (“[E]ven absent medical evidence of total disability or an unsuccessful work search, TTD should be awarded where the claimant’s physician never communicated to the claimant a release to return to work.”). The record does support, however, the ruling denying TPD benefits from the date of accident and continuing, because there is no evidence of any work restrictions other than the no-work slips.

AFFIRMED in part, REVERSED in part, and REMANDED for findings consistent with this opinion.

PADOVANO, LEWIS, and THOMAS, JJ., concur.