text:
    Margaret BENNETT, Petitioner, v. Joseph BENNETT, Jr., Respondent.
    No. 5D11-4306.
    District Court of Appeal of Florida, Fifth District.
    Jan. 18, 2012.
    Caleb D. Rowland and Seth Schwartz, of The Schwartz Law Group, Jacksonville, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Petitioner seeks a writ of prohibition preventing the lower court judge from further presiding .over the proceedings in St. Johns County case number DR08-0388. Because the lower court judge improperly denied Petitioner’s motion to disqualify as untimely, and because the motion to disqualify was otherwise legally sufficient, we grant the petition.

The genesis of the disqualification issue arose pursuant to correspondence, dated November 1, 2011, that was sent by the lower court judge to counsel for Petitioner. Suffice it to say that the substance of the letter was such that a reasonably prudent person would be placed in fear of not receiving a fair and impartial trial See, e.g., Ennis v. Ennis, 855 So.2d 229 (Fla. 5th DCA 2003).

On Monday, November 14, 2011, Petitioner filed her verified motion to disqualify the lower court judge, citing to the statements made by the judge in the November 1, 2011, letter. Although rule 2.330(e), Florida Rules of Judicial Administration, requires a motion to disqualify to “be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion ...,” in the instant case, the tenth day fell on Friday, November 11, 2011, which was Veteran’s Day. Accordingly, Petitioner was entitled to file her motion on the “next day which is neither a Saturday, Sunday, or legal holiday.” Fla. R. Civ. P. 1.090(a). See Holter v. Dohnansky, 917 So.2d 242, 243 (Fla. 5th DCA 2005) (“[Bjecause the last day of the period fell on a Sunday, the ten-day filing period actually ran to the end of the next day that was not a Saturday, Sunday or holiday.”). Petitioner’s November 14, 2011, motion to disqualify was, therefore, timely.

We conclude that under the circumstances presented in the instant case, Petitioner may have reasonably feared that she would not receive a fair and impartial trial. The lower court judge must, therefore, be disqualified from presiding further in this case.

PETITION GRANTED.

ORFINGER, C.J., SAWAYA, AND EVANDER, JJ., concur.

      . We decline Petitioner’s invitation to craft a blanket order disqualifying the lower court judge from presiding over any future cases involving Petitioner’s counsel.


source: Caselaw Access Project

author: WILLIAMS, CHARLES E., Associate Judge.

license: Public Domain

text:
    Timothy L. LUBEE, Appellant, v. Patricia ADAMS, as Personal Representative of the Estate of Edward B. Caufield, Deceased; and Patricia Adams, as Trustee of the Edward B. Caufield Trust, Appellees.
    No. 2D11-1294.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.

      Theodore “Ted” E. Karatinos of Holli-day, Bomhoff & Karatinos, P.L., Lutz; and Hugh C. Umsted of Hugh C. Umsted, P.A., New Port Richey, for Appellant.
    Richard L. Pearse, Jr. of Pearse & Stin-son, P.A., Clearwater, for Appellees.
   WILLIAMS, CHARLES E., Associate Judge.

Timothy L. Lubee challenges the trial court’s order granting in part the motion for summary judgment filed by Patricia Adams, as personal representative of the Estate of Edward B. Caufield, deceased. Because we find that Mr. Lubee was required to file his claim in the probate proceeding within three months of the date of first publication of the notice to creditors, pursuant to section 733.702(1), Florida Statutes (2006), or file a motion for extension of time in which to file his claim, pursuant to section 733.702(3), we affirm the court’s order.

On March 20, 2007, a petition for administration was filed for the estate of Mr. Caufield (the decedent), who died on December 18, 2006. On November 16, 2007, a notice to creditors was published, advising creditors that they were required to file their claims within three months of the date of first publication of the notice or within thirty days after the date of service of the notice on them and that claims not filed within the prescribed times would be forever barred. Over one year later, on December 18, 2008, Mr. Lubee filed his claim in the probate proceedings.

On February 5, 2009, Mr. Lubee filed a civil lawsuit as a creditor of the decedent in an effort to secure payment for services rendered to the decedent. Ms. Adams (the personal representative) filed a motion for summary judgment advancing two theories. Although the trial court improperly granted summary judgment based on the personal representative’s first theory, the second theory — that Mr. Lubee’s claim was barred because it was not filed in the probate proceeding within three months of the date of first publication of the notice to creditors and because Mr. Lubee failed to seek an extension of time within which to file his claim within two years following the decedent’s death — supported the grant of summary judgment. See Cannon v. Fournier, 57 So.3d 875, 882 (Fla. 2d DCA 2011) (“[U]nder the ‘tipsy coachman doctrine,’ we are bound to affirm the circuit court’s order if it reached the correct result, even if it reached that result for the wrong reason.”).

There is no dispute that Mr. Lubee did not file his claim in the probate proceeding within three months following the publication of notice to creditors and that he did not file a motion for extension of time or otherwise seek an extension. There is also no dispute that Mr. Lubee was not served with a copy of the notice to creditors pursuant to sections 733.702(1) and 733.2121(3)(a). However, Mr. Lubee contends that because he was a readily ascertainable creditor entitled to be served with a copy of the notice to creditors pursuant to those sections, he was only required to file his claim in the probate proceeding within thirty days after service of the notice on him or, at a maximum, within two years of the decedent’s death. He argues that because he was never served with the notice to creditors, he timely filed his claim within the two-year window of section 733.710.

Because a notice to creditors was published on November 16, 2007, creditors not entitled to actual notice were required to file their claims on or before February 16, 2008. See § 733.702(1). Creditors who were served with the notice to creditors were required to file their claims within thirty days following service. See id. Because he was not served with a copy of the notice to creditors, Mr. Lubee was required to file his claim in the probate proceeding within the three-month -window following publication. Alternatively, Mr. Lubee could seek an extension from the probate court pursuant to section 733.702(3) within the two-year window of section 733.710. See Morgenthau v. Estate of Andzel, 26 So.3d 628, 632 (Fla. 1st DCA 2009); cf. Miller v. Estate of Baer, 837 So.2d 448, 449 (Fla. 4th DCA 2002) (affirming order enforcing claim against estate where creditor failed to file claim within three-month window of section 733.702(1) but did file motion for extension of time within two-year window of section 733.710). It is undisputed that he did neither. Mr. Lubee’s filing of his claim in the probate proceeding within two years of the decedent’s death did not amount to a request for an extension of time and did not otherwise comply with the requirements of section 733.702. Mr. Lubee’s claim in the probate proceeding was untimely and therefore barred. As a result, the issue of whether or not Mr. Lubee was a readily ascertainable creditor was immaterial in the civil proceeding, and the trial court correctly granted partial summary judgment in favor of the personal representative.

Affirmed.

CASANUEVA and WALLACE, JJ., Concur.


author: PER CURIAM. MORRIS, J.,

text:
    Cynthia JONES, Appellant, v. Louis PFAFF, Appellee.
    No. 2D11-2525.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.

      Richard R. Robles and Nicholas G. Ros-soletti of Law Office of Richard R. Robles, P.A., Miami, for Appellant.
    R. Paul Roecker and Kellie Torneo of Lynch & Robbins, P.A., St. Petersburg, for Appellee.
   PER CURIAM.

Cynthia Jones appeals an order of the trial court declining to exercise jurisdiction over the dissolution of Synergy Real Estate of SW Florida, Inc., a corporation owned by Jones and Louis Pfaff. We dismiss the appeal for lack of jurisdiction.

Jones and Pfaff are each fifty percent shareholders of Synergy. After disputes and allegations of misconduct arose between the parties, Jones filed a complaint against Pfaff in February 2010, asserting claims for injunctive relief, judicial dissolution, partition, equitable accounting, and declaratory judgment. In response to the claim for judicial dissolution, Pfaff elected to purchase Jones’ shares under section 607.1436(1), Florida Statutes (2009). The parties could not reach an agreement regarding the fair value of Jones’ shares. Consequently, the trial court held a hearing and determined the fair value, as provided for in section 607.1436(4). Pfaff then chose to not purchase Jones’ shares and instead filed a timely notice of intention to adopt articles of dissolution, as provided for in section 607.1436(7). Jones then sought continued judicial dissolution of Synergy, but the trial court entered the order on appeal declining jurisdiction on the basis of the language in subsections (6) and (7) of section 607.1436.

The parties assert that the order is appealable as a nonfinal order that determines the right to immediate possession of property. See Fla. R.App. P. 9.130(a)(3)(C)(ii). But the order being appealed does not determine either Jones’ or Pfaff s right to the immediate possession of property; it merely addresses the jurisdiction of the trial court over the dissolution of the corporation.

The parties also believe that the order is appealable as a nonfinal order entered after a final order. See Fla. R.App. P. 9.130(a)(4) (“Non-final orders entered after final order on motions that suspend rendition are not reviewable.... Other non-final orders entered after final order on authorized motions are reviewable by the method prescribed by this rule.” (emphasis added)). The parties assert that the final order was the order determining the fair value of Jones’ shares, which according to the statute, is “enforceable in the same manner as any other judgment.” § 607.1436(6), Fla. Stat. (2009). The order determining the fair value of Jones’ shares is titled “Final Judgment,” but it only disposes of one count of Jones’ complaint against Pfaff. There are four other counts remaining between Jones and Pfaff that will require further action by the court. Therefore, the “Final Judgment” is not a final order. See Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002) (“A final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary.”). Accordingly, any subsequent order entered after the “Final Judgment” is not reviewable under rule 9.130(a)(4).

Because the order on appeal is a nonfi-nal order that is not appealable under the provisions of rule 9.130, we dismiss the appeal for lack of jurisdiction.

Dismissed.

CASANUEVA and LaROSE, JJ., Concur.

MORRIS, J., Concurs specially with opinion.

MORRIS, J.,

Concurring specially.

I agree with the majority opinion that this court does not have jurisdiction to review the order on appeal, but I write to express my concern with the language of the applicable statute on which the trial court based its ruling.

First, while we do not have jurisdiction to review the interlocutory order as an appeal, this court has “discretion to treat [the] improperly filed appeal as a petition for writ of certiorari.” Bridges v. Williamson, 449 So.2d 400, 401 (Fla. 2d DCA 1984). However, “ ‘common law certiorari is an extraordinary remedy and should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098 (Fla.1987)).

Here, the refusal of the trial court to exercise jurisdiction over the dissolution of the corporation, if wrong, would result in material harm that could not be corrected later on appeal of a final judgment entered in the remaining proceedings between Jones and Pfaff. Therefore, the jurisdictional prongs of certiorari review are satisfied. See id.

I cannot conclude, however, that the trial court departed from the essential requirements of the law warranting certiora-ri relief. The departure from the essential requirements of law has been held to be synonymous with an application of incorrect law. Housing Auth. of City of Tampa v. Burton, 874 So.2d 6, 8 (Fla. 2d DCA 2004). The application of the incorrect law will warrant certiorari relief whereas the misapplication of the correct law will not. See id. Here, if the trial court erred, it did so in its application of section 607.1436, which is the correct law. Therefore, cer-tiorari relief would not be appropriate. My concern is with the language of the correct law applicable to this case, section 607.1436.

Jones sought judicial dissolution under section 607.1430, which allows the trial court to dissolve a corporation under certain circumstances, such as when the directors or shareholders are deadlocked, the corporate assets are being misapplied, or the directors are acting in an illegal or fraudulent manner. See § 607.1430(2), (3). In a proceeding for judicial dissolution, a court may “issue injunctions, appoint a receiver or custodian pendente lite with all powers and duties the court directs, take other action required to preserve the corporate assets wherever located, and carry-on the business of the corporation until a full hearing can be held.” § 607.1431(B).

Under section 607.1438, when the trial court has determined that grounds for judicial dissolution exist, the trial court may enter a judgment of dissolution and then “shall direct the winding up and liquidation of the corporation’s business and affairs in accordance with s. 607.1405 and the notification of claimants in accordance with s. 607.1406.” § 607.1433(2).

But before the trial court takes final action on a claim for judicial dissolution, section 607.1436 allows another shareholder, like Pfaff, to elect to purchase the petitioning shareholder’s shares rather than have the corporation judicially dissolved under section 607.1430(2) or (3). See § 607.1436(1). Subsection (4) of section 607.1436 provides that if the parties cannot agree on the fair value of the petitioning shareholder’s shares, the court shall stay the section 607.1430 proceedings for judicial dissolution and determine the fair value. Subsection (5) provides that upon determining the fair value of the shares, the trial court shall enter an order directing the purchase of the shares. Subsection (6) provides that when an order directing the purchase of the shares has been entered, the trial court shall dismiss the petition for judicial dissolution filed under section 607.1430 and that the order on value shall be enforceable as any other judgment.

Subsection (7) of section 607.1436 goes on to provide that the purchase shall become final in ten days unless the corporation “files with the court a notice of its intention to adopt articles of dissolution.” In this case, Pfaff filed such notice rather than purchase Jones’ shares. Subsection (7) provides that when the articles of dissolution are filed, “the corporation shall be dissolved in accordance with the provisions of ss. 607.1405 and 607.1406.” Subsection (7) also provides that “the order entered pursuant to subsection (5) shall no longer be of any force or effect” and that the “petitioner may continue to pursue any claims previously asserted on behalf of the corporation.”

The problem is that subsection (7) of section 607.1436 does not clearly address whether the judicial dissolution action continues in the event that the electing shareholder chooses to not purchase the petitioning shareholder’s shares. It does not use the same language used in section 607.1433, which addresses what a trial court shall do in dissolving a corporation in an action for judicial dissolution. Section 607.1433(2) specifically states that after finding a ground for dissolution and “[a]f-ter entering the judgment of dissolution, the court shall direct the winding up and liquidation of the corporation’s business and affairs in accordance with” sections 607.1405 and 607.1406. On the other hand, section 607.1436(7) simply provides that the corporation shall be dissolved in accordance with sections 607.1405 and 607.1406; it does not provide that the stay should be lifted in the originally filed section 607.1430 action or that the court shall direct the winding up and liquidation of the corporation. It also fails to address or undo the dismissal of the petition for judicial dissolution ordered in subsection (6) of section 607.1436.

In Fierro v. Templeton, 857 So.2d 931, 933 (Fla. 4th DCA 2003), which the trial court relied upon in its order, the Fourth District held that “the language in subsection seven [of section 607.1436] leaves no question that the filing of an intention to adopt articles of dissolution ... automatically nullifies the order [directing the purchase of shares] and triggers the dissolution process without further order of the court.” (Emphasis added.) Under this reading of section 607.1436(7), a fifty percent shareholder, like Pfaff, could avoid judicial dissolution sought by another fifty percent shareholder, like Jones, simply by asserting his intention to purchase the shares but then later filing the notice of intention to adopt articles of dissolution, either because he intended to do so all along or because he was dissatisfied with the determined fair value of the petitioning shareholder’s shares. Depriving the trial court of jurisdiction over the dissolution would deprive the petitioning shareholder, like Jones, of the right to supervision of the trial court over the dissolution, which could include the appointment of a receiver by the trial court or other actions by the trial court necessary to preserve the assets of the corporation. See § 607.1431(3). This seems to be a scenario that the statute does not contemplate and that the legislature would certainly not condone. It thus appears that a legislative fix is in order.

      . The statute speaks in terms of the corporation’s filing such a notice. § 607.1436(7). We question whether Pfaff, as a fifty percent shareholder who was at odds with the other fifty percent shareholder, had the authority to file the notice on behalf of the corporation. However, Jones has not raised this issue.


author: ALTENBERND, Judge.

text:
    Deonno MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1807.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.
    Deonno Miller, pro se.
   ALTENBERND, Judge.

Deonno Miller appeals an order denying his motion to correct illegal sentences. Because the records attached to the order do not conclusively refute Mr. Miller’s postconviction claim that the trial court imposed illegal sentences on the revocation of his youthful offender probation, we reverse and remand.

In January 2007, Deonno Miller was sentenced to four years’ imprisonment followed by two years’ probation as a youthful offender on several felony offenses in each of three separate cases. He was sentenced to time served on two misdemeanor offenses. Our record is scant, but it appears that the offenses for which Mr. Miller was sentenced as a youthful offender occurred sometime in 2004 and 2005, clearly before July 1, 2006.

In 2009, while serving probation, Mr. Miller committed new substantive offenses — two counts of possession of cocaine and two counts of sale, manufacture, or delivery of cocaine. Mr. Miller entered a plea on the new substantive offenses, and he was sentenced as an adult on those offenses to four concurrent terms of ten years’ imprisonment on the four counts. Mr. Miller also entered a written plea admitting that he violated the terms of his probation in the three prior youthful offender cases and acknowledging that he understood that he would be sentenced to ten years’ imprisonment on the revocation of probation. He was sentenced to concurrent terms of ten years’ imprisonment on each of the felony convictions in the three prior cases. Written judgments and sentences were rendered in all of the cases on August 21, 2009.

Mr. Miller delivered to his correctional institution a sworn motion to correct sentencing error on August 2, 2010, and he delivered to his correctional institution a sworn addendum to the motion on November 1, 2010, citing Florida Rule of Criminal Procedure 3.800(b) as the authority for the filings. He asserted that he successfully completed “boot camp” on his youthful offender sentences and that under the law in effect when he committed his prior offenses, he could be sentenced to no more than 364 days on the revocation of probation. He argued that the sentences imposed on the revocation of probation in the three youthful offender cases violated the constitutional prohibition against ex post facto laws.

Mr. Miller’s sworn claims could have been considered pursuant to rule 3.850, but the court elected to consider them pursuant to rule 3.800(a) and summarily denied relief. It concluded as a matter of law that certain provisions of the youthful offender statute authorized the imposition of the ten-year sentences on the revocation of Mr. Miller’s youthful offender probation. In reaching this conclusion, the court incorrectly relied upon the version of a statutory provision that was applicable at the time Mr. Miller was originally sentenced as a youthful offender, rather than the version of the provision in effect at the time Mr. Miller committed his offenses. Compare § 958.045(5)(c), Fla. Stat. (2007) (authorizing the court to sentence a youthful offender to “any sentence that it might have originally imposed” if the offender violates a modified sentence of probation that was imposed as a consequence of the offender’s satisfactory completion of a basic training program run by the Department of Corrections), with § 958.045(5)(c), Fla. Stat. (2004, 2005) (authorizing the court to sentence such an offender to “any sentence that it might have originally imposed as a condition of probation”) (emphasis added)).

Significantly, in applying the incorrect version of the statutory provision, the court stopped short of addressing whether the revocation proceeding arose from the violation of probationary terms that had been imposed following Mr. Miller’s satisfactory performance in a DOC-run basic training program (commonly referred to as “boot camp”). See § 958.045(5)(c), Fla. Stat. (2004, 2005). This determination was critical to Mr. Miller’s claim. If Mr. Miller violated a probationary sentence that was imposed as a consequence of his satisfactory completion of a DOC-run boot camp on convictions for offenses that occurred prior to July 1, 2006, the sentences imposed on the revocation of his youthful offender probation indeed violated the constitutional prohibition against ex post facto laws. See Morrison v. State, 978 So.2d 284, 285 (Fla. 4th DCA 2008); see also Cutler v. State, 927 So.2d 249, 250 (Fla. 2d DCA 2006); Blaxton v. State, 868 So.2d 620, 621 (Fla. 2d DCA 2004); Lee v. State, 884 So.2d 460, 462 (Fla. 4th DCA 2004) (providing that an offender who completes a county-operated boot camp would not be entitled to section 958.045(5)(c) sentencing because “no provisions in the Youthful Offender Act requir[e] application of rules governing department boot camp facilities to the county-run programs”). Under the youthful offender provisions in effect in 2004 and 2005, a violation of a probationary sentence that was imposed as a consequence of an offender’s satisfactory completion of a DOC-run boot camp could result in a sentence of no longer than 364 days’ incarceration in specified facilities. See §§ 958.045(5)(e), 958.04(2)(b), Fla. Stat. (2004, 2005); Cutler, 927 So.2d at 250; Morrison, 978 So.2d at 285.

The items attached to the court’s summary denial order do not conclusively refute Mr. Miller’s claim that under the youthful offender law in effect when he committed his prior offenses he could be sentenced to no more than 364 days on the revocation of probation. Because Mr. Miller filed a sworn motion that is timely under rule 3.850, we reverse and remand for the court to address the motion as if filed under that rule.

Reversed and remanded.

VILLANTI and MORRIS, JJ., Concur.

      . Our record does not reveal the precise date of Mr. Miller's offenses. Throughout this opinion we have deduced the year in which the offenses were committed. For purposes of this opinion, the offense dates we mention are not intended to be conclusive.

      . Although not challenged in this appeal, it is not entirely clear that Mr. Miller’s sentences on the third-degree felony possession convictions are legal. Perhaps his Criminal Punishment Code scoresheet supported the imposition of ten years' incarceration on each of these, but it is not contained in our record. Again, our record simply fails to reveal this information.

      . The circuit court’s case progress docket suggests that Mr. Miller's sentences might have been modified in September 2008, but our record does not reveal whether they were modified as a result of his satisfactory performance in a DOC-run boot camp.


author: SILBERMAN, Chief Judge.

text:
    Ronnie Tremel WALKER a/k/a Ronny Tremel Walker, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2754.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.

      James Marion Moorman, Public Defender, and Richard J. D’Amico, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Chief Judge.

Ronnie Tremel Walker seeks review of his judgment and sentence for manslaughter, armed burglary of a dwelling with an assault or battery, and armed robbery. We reverse and remand for a new trial because the trial court erred in admitting hearsay evidence that an unnamed third party had provided information that led to Walker’s identification.

In October 2003, Raymond Lee was living with his girlfriend of fifteen years, Elaine, and Elaine’s nine-year-old granddaughter, Veronica. On the evening of October 23, 2003, Raymond and Veronica were in the den when a man they had never seen before appeared with a handgun. He held his finger to his lips to quiet Raymond and Veronica.

The man patted down Raymond and took his wallet from his back pocket. Although the wallet contained about $500, the man asked Raymond where he kept the rest of his money. When Raymond asked what he was talking about, the man asked who else was in the home. Raymond told him that Elaine was in the master bedroom. The man then grabbed Raymond around the neck with one arm, grabbed Veronica with the other, and hustled them into the master bedroom while pointing the gun at Raymond’s head.

When Elaine saw the man holding Raymond and Veronica at gunpoint, she started screaming. The man became agitated and told Elaine to be quiet. Raymond could see that the man was panicking and told Elaine to calm down. Elaine continued screaming, and the man pointed the gun at her and told her to shut up. Raymond tried to grab the gun while the man told Elaine, “I’m not gonna tell you to shut up no more.” The man fired the gun, and Elaine fell. Veronica then started screaming.

The man turned to Raymond and said Raymond had until the count of three to tell him the location of the money or Veronica would be shot. When Veronica started panicking, the man knelt down, kissed her on her forehead, and said, “I’m not going to shoot you because I have a daughter myself. Just tell me where the money is at.” When Raymond insisted that there was no more money, Veronica blurted, “[I]t’s in the trunk.”

The man ushered Raymond and Veronica to the living room and demanded the car keys. Raymond told the man the keys were hanging on the wall. They retrieved the keys and proceeded outside. Raymond had parked his two cars on his neighbor’s property to hide them because he sometimes used the cars to store drugs. They tried to open the trunk of one of the cars, but the keys would not fit. When the man asked again about the keys, Raymond said the keys were in the car. The man had Veronica retrieve them and open the trunk.

After she opened the trunk and looked inside, Veronica remarked, “I don’t see no money.” Raymond took the opportunity to grab the man’s arm, and the gun fell to the ground. As the two men struggled, Raymond yelled for Veronica to run. Veronica took off. The man then retrieved the firearm and took off running in the other direction. Raymond fled in the direction Veronica had run and called for help.

Sergeant Haggart heard a radio call regarding the home invasion at 8:15 p.m. and responded to the scene. He entered the house and found Elaine lying on the bed. She had been killed by a gunshot wound to her head. Raymond described the perpetrator as a twenty-five-year-old black male, 5'10" to 5'11" tall, weighing about 185 pounds. The man was wearing a baseball cap, and the only distinctive feature Raymond could remember was a scar running down the left side of the man’s face. The police showed Raymond two photopaks, each containing six pictures of suspects. Raymond did not identify anyone from the photopaks.

About a month after the shooting, Raymond received information “from the streets” as to the perpetrator’s identity. Raymond went to his sister Valerie’s home and called his sister Yolanda. Yolanda researched a state database while Raymond was on the phone. She searched the database for younger black males with a first name that began with the letters “R-o-n” and pulled up about ten photographs of possible perpetrators. Valerie then pulled up the photographs on her computer. Raymond identified Walker from one of the photographs.

Raymond contacted the detective who was assigned to the case, Detective Dra-biniak, and informed him that he had the name and photograph of the perpetrator. Drabiniak pulled up the photograph on the website and then prepared a photopak using a different photo of Walker. Raymond identified Walker’s photograph.

Of the nineteen prints taken at the scene, only one palm print from an ar-moire in the master bedroom was detailed enough to compare to existing prints. However, it did not match Elaine, Raymond, or Walker. Additionally, the police never recovered the firearm the perpetrator used. Because the only evidence against Walker was Raymond’s identification of his photographs, Detective Drabin-iak decided not to arrest Walker and continued the investigation.

But the case went cold. Five years later, the case was transferred from Detective Drabiniak to Detective Massucci for a cold case review. Detective Massucci arranged for a DNA analysis of an area of blood at the scene that had not been tested in the first investigation. Ultimately, all of the DNA was matched to Elaine and Raymond, who had cut his finger during the incident.

Detective Massucci interviewed Walker in July 2009. Massucci informed Walker of the evidence against him and accused Walker of committing the crimes. Walker calmly responded, “[S]ounds like you have a tight case, but that’s not my M.O.” Walker also attempted to explain why the evidence did not necessarily establish that he was the perpetrator. Because Walker continued to deny his involvement, the detective decided to try a different tack. He attempted to appeal to Walker’s emotions by mentioning the perpetrator’s tender treatment of nine-year-old Veronica when she became upset. Walker teared up, and the detective encouraged him to confess. Walker responded, “I know what you’re saying but I will never tell on myself.” Detective Massucci continued the interview, but Walker never admitted that he had committed the crimes. Walker was arrested in September 2009.

In February 2010, Walker was tried for first-degree felony murder, armed burglary of a dwelling with an assault or battery, and armed robbery. This trial resulted in a hung jury, and the court declared a mistrial. The State then amended the murder charge to second-degree murder and retried Walker on the three charges.

At the second trial, the State relied primarily on Raymond’s identification of Walker and Detective Massucci’s testimony regarding Walker’s statements during his interview. On cross-examination of Raymond, defense counsel established an inconsistency between Raymond’s identification of the perpetrator’s scar and Walker’s actual appearance. Raymond had described the perpetrator’s scar as a raised scar running down the side of his face, but the only mark on the side of Walker’s face was an acne pockmark that looked like it had been scratched. And, on cross-examination of Detective Massucci, the detective conceded that, even though the perpetrator had told Veronica that he had two daughters, Walker was the father of two sons.

The jury found Walker guilty of the lesser-included offense of manslaughter and of armed burglary and armed robbery as charged. On appeal, Walker argues that he is entitled to a new trial because the trial court erroneously admitted hearsay evidence that an unnamed third party had provided identifying information that led to Raymond’s identification of Walker.

During Raymond’s direct examination, the State established that people in the neighborhood were very upset about Elaine’s death. The following exchange then occurred:

Q. All those people that we just discussed, were people actively trying to get information on the street as to who might have information about who did this?
A. You couldn’t imagine the people who was just trying to find out information further as who did this, because she was just a good, loving person and always loved her kids and her grandkids. Always.
Q. Okay. At some point, did you hear rumors of a name that—
[DEFENSE COUNSEL]: Objection, Your Honor.
THE COURT: Sustained. Next question.
Q. Did you get information from the streets about who potentially did this?
A. Yes, I did.
[DEFENSE COUNSEL]: Objection, Your Honor.

Counsel then approached and argued, “What he heard from the streets is clearly hearsay.” The objection was overruled. Raymond then explained how his sister Yolanda searched the state database and pulled up Walker’s photo. This same information was elicited during Yolanda’s testimony.

Walker argues that this evidence from an unidentified source that Raymond got “information from the streets about who potentially [committed the charged crimes]” was inadmissible hearsay. Walker claims that, even though the exact “information” provided was not disclosed, the inference from this testimony is that some unnamed, unidentified person accused Walker of committing the crimes in this case.

The State responds that the statement was not hearsay because it was not admitted for the truth of the matter asserted but to explain Raymond’s subsequent conduct in looking at photographs online. Alternatively, the State asserts that the error was harmless when considered in light of all the evidence presented. We disagree with both of these assertions.

“[I]t is impermissible for the State to have the benefit of statements from mystery witnesses or sources without the defendant having the right of confrontation and cross-examination.” Keen v. State, 775 So.2d 263, 273 (Fla.2000). To come within this rule, the testifying witness need not repeat the exact statements of the mystery witnesses or sources but need only give testimony from which such statements may be inferred. Wilding v. State, 674 So.2d 114, 119 (Fla.1996), receded from on other grounds, Devoney v. State, 717 So.2d 501 (Fla.1998). Where the inference from a statement of a mystery witness is that the witness has furnished evidence of the defendant’s guilt, the testimony is hearsay and violates the defendant’s right of confrontation. Id.

The Florida Supreme Court has rejected the argument that such statements are admissible to explain the police investigation or to establish a sequence of events. Keen, 775 So.2d at 271. “ ‘[T]he prejudice of out-of-court statements used to relate accusatory information but offered simply to establish the logical sequence of events outweighs the probative value of such evidence, rendering it inadmissible.’ ” Id. (quoting Caruso v. State, 645 So.2d 389, 395 (Fla.1994)).

The facts of this case are analogous to those in Stokes v. State, 914 So.2d 514 (Fla. 4th DCA 2005). In Stokes, the defendant was charged with first-degree murder with a firearm, robbery with a firearm, and aggravated assault with a firearm. Id. at 515. During the State’s direct examination of Detective Shatara, the detective “testified that [the defendant] became a suspect after [Detective] Shatara conducted a number of interviews with other people.” Id. at 517.

The Fourth District determined that this testimony constituted inadmissible hearsay. The court explained that this statement could have caused the jury to infer either “that non-testifying witnesses made accusatory statements to Detective Shatara about the defendant” or “that testifying witnesses gave police information about appellant’s involvement which was not presented to the jury.” Id. The court rejected the State’s argument that the testimony was admissible to explain the sequence of events leading to the defendant’s development as a suspect, noting that the supreme court had expressly rejected such an argument in Keen and Wilding.

In this case, the testimony at issue was that Raymond was given information from an anonymous witness about who potentially committed the crimes. Thus, the statements made by Raymond were inadmissible hearsay. See also Wilding, 674 So.2d at 118-19 (holding that the detective’s affirmative response to a question of whether he received an anonymous tip naming the defendant constituted inadmissible hearsay); Stribbling v. State, 778 So.2d 452, 453-54 (Fla. 4th DCA 2001) (holding that investigating detective’s testimony that he first obtained information about the perpetrator of the crime the day after the murder when he received a phone message leaving the defendant’s name constituted inadmissible hearsay).

The State’s argument that any error in admitting these statements was harmless is without merit. The identifying information by the unknown third party was mentioned several times during the trial. First, Raymond testified about the statement. Then Raymond’s sister Yolanda testified about the statement, specifically mentioning that the tip was that a black man named Ron committed the crimes. And finally, the State mentioned the “information from the streets” in its closing argument to suggest that Raymond properly identified Walker as the perpetrator.

Moreover, the evidence against Walker was tenuous because there was no physical evidence connecting Walker with the crimes and his identification was significantly impeached. Furthermore, some of the evidence was actually inconsistent with Walker’s being the perpetrator. The perpetrator had told the nine-year-old victim that he had two daughters at home, but Walker has sons. And while Walker’s fingerprints were not found at the scene, a palm print of an unidentified third party was found. Finally, while the State asserted that Walker made inculpatory statements during his interview, he did not admit to committing the crimes or offer any information regarding the crimes.

Under these circumstances, it cannot be said that the error in admitting evidence that one or more persons from the streets had identified Walker as the perpetrator did not affect the verdict. See Stribbling, 778 So.2d at 455 (rejecting harmless error argument for anonymous hearsay identification evidence because identification was in question). Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

KELLY and LaROSE, JJ., Concur.


author: GRIFFIN, J.

text:
    Dawn P. SCHELL, Appellant, v. Michael J. SCHELL, Appellee.
    No. 5D10-3727.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Brandon D. Beardsley, of Mowrey, Shoemaker & Beardsley, P.L., St. Augustine, for Appellant.

      Regina W. Sargeant, of Law Office of Regina W. Sargeant, P.A., St. Augustine, for Appellee.
   GRIFFIN, J.

Dawn P. Schell [“Mother”] appeals an order authorizing Michael J. Schell [“Father”] to relocate with the parties’ two minor children to Roanoke, Virginia.

On May 25, 2005, the trial court entered a final judgment of dissolution of Father and Mother’s marriage, under which Father was awarded primary residence of the minor children. Subsequently, on June 23, 2010, Father filed a supplemental petition to relocate with the children to Roanoke, Virginia. There is no transcript of the evidentiary hearing held on this petition because no court reporter was present. Consequently, Mother contends on appeal that errors of law are apparent on the face of the order. We find no reversible error and affirm.

AFFIRMED.

MONACO and COHEN, JJ., concur.


text:
    HELPING HAND PRIVATE FOUNDATION, INC., Appellant, v. OCEAN PALMS BEACH CLUB, INC., Appellee.
    No. 5D10-4403.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Frederick C. Kramer, of Kramer Law Firm, P.A., Marco Island, for Appellant.

      No Appearance for Appellee.
   GRIFFIN, J.

Appellant, Helping Hand Private Foundation [“Helping Hand”], appeals a summary final judgment entered in a lien foreclosure action filed by Appellee, Ocean Palms Beach Club [“Ocean Palms”]. Helping Hand contends that summary judgment was not proper because the summary judgment motion and supporting affidavits were deficient and genuine issues of material fact preclude entry of judgment as a matter of law. Ocean Palms has not filed an answer brief. We reverse.

Summary judgment cannot be granted unless the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, conclusively show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. See Fla. R. Civ. P. 1.510(c); see also Alejandre v. Deutsche Bank Trust Co. Americas, 44 So.3d 1288, 1289 (Fla. 4th DCA 2010). Where, as in this case, affirmative defenses are raised, the mov-ant has the burden of either disproving them or establishing their legal insufficiency. See O’Brien v. Fed. Trust Bank, F.S.B., 727 So.2d 296, 298 (Fla. 5th DCA 1999); Fla. Dep’t of Agric. v. Go Bungee, Inc., 678 So.2d 920, 921 (Fla. 5th DCA 1996). Here, Ocean Palms did neither. The affidavit executed by Ocean Palms’ president, Edward Polonsky, was insufficient to refute Helping Hand’s asserted defenses. See Frost v. Regions Bank, 15 So.3d 905 (Fla. 4th DCA 2009). Moreover, supporting affidavits are required to be “made on personal knowledge, ... set forth such facts as would be admissible in evidence, and ... show affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e). The Polonsky affidavit does not meet this test.

This case is very similar to Helping Hand Private Foundation, Inc. v. Ocean Palms Beach Club, Inc., 71 So.3d 201 (Fla. 5th DCA 2011), where we reversed a summary judgment involving the same parties on similar grounds. Accordingly, we reverse the judgment and remand to the trial court.

REVERSED and REMANDED.

TORPY and LAWSON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    S.G., a child, Petitioner, v. Vincent VURRO, as superintendent of the Southwest Florida Juvenile Detention Center, Department of Juvenile Justice, Respondent.
    No. 2D11-4944.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2012.
    Kathleen A. Smith, Public Defender, and Benjamin Abdulnour, Assistant Public Defender, Punta Gorda, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

S.G., a child, was found to be in indirect criminal contempt of a truancy order and sentenced to five days of secure detention in the Southwest Florida Juvenile Detention Center. He filed a petition for writ of habeas corpus, asserting that a sentence to secure detention in a case such as his is illegal. S.G. has since been released. However, we decline to dismiss the petition as moot because the issue presented is capable of repetition yet evading review. See K.E. v. Dep’t of Juvenile Justice, 963 So.2d 864, 866 (Fla. 1st DCA 2007).

A delinquent child who has been held in indirect criminal contempt may be placed in a secure detention facility for five days for a first offense or for fifteen days for a second or subsequent offense. § 984.09(2)(a), Fla. Stat. (2011). A child who violates a truancy order, however, is not a delinquent child. Rather, a child who is found by the circuit court to have been habitually truant from school is deemed to be a “[cjhild in need of services.” § 984.03(9)(b), Fla. Stat. (2011). As such, his subsequent violation of the truancy order is expressly excluded from the delinquency definition set forth in section 985.03(8), Florida Statutes (2011), which provides:

“Child who has been found to have committed a delinquent act” means a child who, under this chapter, is found by a court to have committed a violation of law or to be in direct or indirect contempt of court, except that this definition does not include an act constituting contempt of court arising out of a dependency proceeding or a proceeding concerning a child or family in need of services.

(Emphasis added.)

To be sure, truancy orders are enforceable by contempt. § 984.151(9). But whereas a delinquent contemnor may be punished by placement in secure detention, a child in need of services who commits a contempt of court may be placed in “a staff-secure shelter or a staff-secure residential facility solely for children in need of services,” or if no such placement is available, in “an appropriate mental health facility or substance abuse facility for assessment.” § 984.09(2)(b).

The circuit court was not authorized to place S.G. in secure detention for violating its truancy order, and the detention was illegal. Accordingly, we grant the petition for writ of habeas corpus.

LaROSE and MORRIS, JJ„ Concur.


author: PER CURIAM.

text:
    Tyler Joseph TAYLOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6233.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2012.
    Seth Schwartz and Caleb D. Rowland of The Schwartz Law Group, P.A., Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied. See Dyson v. Campbell, 921 So.2d 692 (Fla. 1st DCA 2006).

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


text:
    Michael Perri ROSEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3809.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 188 (Fla. 1st DCA 2011).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    FEDERAL EXPRESS CORPORATION and Sedgwick CMS, Appellants, v. Saverio LUPO, Appellee.
    No. 1D11-3192.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Henry J. Roman of Vernis & Bowling of Broward, P.A., Hollywood, for Appellants.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals an order of the Judge of Compensation Claims (JCC) finding Claimant’s repetitive trauma injury compensable and authorizing evaluation and treatment with a podiatrist. We reverse because, although the JCC properly found Claimant’s repetitive trauma injury compensable, the JCC erred in rejecting the opinion of the expert medical advisor (EMA) as to the major contributing cause (MCC) of Claimant’s need for ongoing treatment, and further erred in awarding Claimant’s requested evaluation and treatment with a podiatrist based on the JCC’s evaluation of the EMA’s opinion. Accordingly, we reverse and remand for further findings relating to the EMA’s opinion.

Background

Claimant broke his right ankle in 1987. Approximately two years later, Claimant began his employment as a courier/driver with the E/C. Claimant had occasional pain in his right ankle prior to his employment, but it was manageable and did not prevent him from performing his job duties. In November 2001, Claimant sought medical treatment for pain in his right ankle. Claimant was referred to a podiatrist in February 2003.

Claimant filed a petition for benefits (PFB) seeking compensability for repetitive trauma to his right ankle and authorization of a podiatrist. Due to disagreements in the medical opinions regarding causation issues, the JCC appointed an EMA, Dr. April Chin. The JCC accepted the opinions of Dr. Chin, finding those opinions well-grounded in fact and logic. The JCC found that Claimant had a com-pensable repetitive trauma injury, specifically, an aggravation of the pre-existing ankle condition, as established by Dr. Chin. The JCC also found the aggravation was the MCC of Claimant’s need for ongoing treatment, and awarded the requested treatment with a podiatrist. This appeal followed.

Analysis

On appeal, the E/C argues competent, substantial evidence (CSE) does not support the JCC’s apparent rejection of the EMA’s opinion as to the MCC of his current need for treatment. Although the JCC here purported to accept the EMA’s opinions, the JCC mischaracterized those opinions. In the order, the JCC found:

6. I further find that the claimant’s employment and the physical job duties aggravated the claimant’s preexisting right ankle fracture. Dr. Chin’s testimony clearly and unequivocally establishes same, as does Dr. Augustin Bollo. The undisputed medical evidence is that the claimant currently needs further treatment for the right ankle. I find that the claimant’s employment and job duties aggravated and accelerated the need for treatment of the right ankle, and [sic] is compensable. See Delgado v. Blanco & Sons Catering, 606 So.2d 658 (Fla. 1st DCA 1992). I accept Dr. Chin’s opinion that the major contributing cause of the aggravation and acceleration of the claimant[’s] right ankle injury is the job duties with the employer. Because the claimant’s employment has aggravated and accelerated the need for treatment, I find that the major contributing cause standard and the criteria for compensability under F.S. 440.09 have been met.
7. I note some confusion in the concept of major contributing cause in the opinion of Dr. April Chin. However, as noted above, Dr. Chin clearly states the claimant’s employment aggravated and accelerated the claimant’s preexisting condition, and that the preexisting condition now needs treatment. Dr. Chin clearly states that the major contributing cause of the aggravation and acceleration is the claimant’s employment and job duties. The record is devoid of any evidence of any other aggravating or accelerating factor. Accordingly, it comports with logic and reason that the employment duties are the major contributing cause of the current need for treatment. There is no evidence before the undersigned that the claimant would need the same current level of care and treatment had the claimant not had employment duties with the employer.

In explaining the noted “confusion” in Dr. Chin’s opinions on the MCC of Claimant’s need for treatment, the JCC stated:

8. I note a portion of Dr. Chin’s opinion states that the preexisting condition is the major contributing cause of the need for treatment. However, this portion of her opinion cannot be read in a vacuum, and cannot be read with blinders on to ignore or exclude her other opinions in this case. The totality of her opinion must be considered, as well as the specific facts of the case, in reaching the ultimate conclusions. I decline to read Dr. Chin’s opinion in a vacuum as argued by the E/SA. When considering the totality of Dr. Chin’s opinion, I accept her opinion that the claimant’s preexisting right ankle condition has been aggravated accelerated [sic] by his employment, and the aggravation and acceleration alone require treatment. I accept Dr. Chin’s opinion that the major contributing cause of the aggravation and acceleration was the industrial accident. I accept that Dr. Chin noted no other aggravating factor other than the employment.

(emphasis added).

Dr. Chin answered two questions posed to her in the EMA appointment letter. Specifically, Dr. Chin opined, “In regard to the first question, whether the employment with Federal Express was a major contributing cause for permanent aggravation to the pre-existing condition, my answer is yes.” Dr. Chin continued, “And for the second question, regarding whether the employment with FedEx was a major contributing cause for the current need of treatment, my answer is no.” Consistent with those answers, Dr. Chin’s testimony was that the work-related aggravation was not the MCC of Claimant’s current need for treatment. Similarly, Dr. Chin’s EMA report indicated that the MCC for Claimant’s current need for treatment was the pre-existing ankle fracture sustained in 1987. By awarding the requested medical treatment, the JCC effectively rejected the EMA’s opinion that Claimant’s pre-exist-ing condition was not the MCC of his need for treatment. The JCC was not entitled to reinterpret the EMA’s opinions in this manner.

Claimant had the burden to prove that the resulting aggravation of the pre-exist-ing condition was the MCC of his need for treatment under section 440.09(l)(b), Florida Statutes (2002). That statute provides:

If an injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains the major contributing cause of the disability or need for treatment.

§ 440.09(l)(b), Fla. Stat. (2002). See Tice v. Albertson’s & Specialty Risk Servs., 940 So.2d 1258 (Fla. 1st DCA 2006) (reversing denial of benefits where the JCC erred in rejecting the EMA’s opinion that claimant’s work activities were the MCC of aggravation of her pre-existing condition and remanding for further proceedings as to whether aggravation was the MCC of claimant’s need for treatment); City of Cooper City/Fla. Mun. Ins. Trust/Fla. League of Cities v. Farthing, 905 So.2d 925, 928 (Fla. 1st DCA 2005) (holding the MCC requirement of section 440.09(1)(b) is satisfied by proof that workplace exposure aggravated pre-existing disease); J & J Enters. v. Oweis, 733 So.2d 1149, 1150 (Fla. 1st DCA 1999) (holding the MCC requirement in section 440.09(l)(b) and the MCC provision in section 440.02(32) were both satisfied by claimant’s proof that workplace activity produced disabling aggravation of pre-existing condition); cf. Mellon Sec. & Sound v. Custer, 687 So.2d 1372 (Fla. 1st DCA 1997) (affirming finding of compensability of aggravation of pre-existing condition and benefits claimed where record contained CSE that the accident caused aggravation of pre-existing condition and that aggravation was the MCC of claimant’s need for treatment). In the absence of such proof, the JCC should have denied Claimant’s claim for treatment.

The JCC relied on Delgado, 606 So.2d at 658, to find that Claimant’s repetitive trauma injury was the MCC for Claimant’s need for treatment. In Delgado, this court held that, because the unrefuted medical evidence, established by the testimony of the claimant’s authorized treating surgeon, specifically indicated the claimant’s employment injury aggravated his pre-existing hernia and the claimant’s current need for treatment, hernia surgery, was required due to the aggravation, the aggravation of the pre-existing hernia was compensable. Id. at 659. Delgado is distinguishable from this case because, in that case, the issue was whether the claimant’s employment accident aggravated his pre-existing hernia condition. Id. Here, it is undisputed that Claimant’s employment aggravated his pre-existing condition. The issue is whether the aggravation is the MCC of Claimant’s current need for treatment.

The record medical evidence does not support the JCC’s finding that the aggravation was the MCC of Claimant’s need for treatment because, although the JCC noted “some confusion” in Dr. Chin’s testimony regarding the MCC, a review of Dr. Chin’s testimony and report reveals no confusion — Dr. Chin opined that, although Claimant’s job was the MCC of any permanent aggravation of his pre-existing ankle condition, the MCC of Claimant’s need for treatment was the pre-existing condition (not Claimant’s job-related aggravation). In finding that the aggravation of Claimant’s pre-existing condition alone necessitated the requested treatment (evaluation and treatment with a podiatrist), the JCC impermissibly rejected the EMA’s opinion, and failed to articulate clear and convincing evidence to do so, as required by section 440.13(9)(c). Accordingly, we reverse and remand this matter for further findings relating to the EMA’s opinion. Because the propriety of the JCC’s award of medical treatment with a podiatrist depends on the resolution of the need for treatment, we reverse and remand the award of treatment as well.

Accordingly, the order is REVERSED, and REMANDED for proceedings consistent with this opinion.

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


text:
    AMS STAFF LEASING, INC., Brite Top Roofing West Palm Beach, Aspen Administrators, and Companion Property & Casualty Company, Appellants, v. Luis GIRALDO, Appellee.
    No. 1D11-2514.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Richard S. Powers of William E. Gregory & Associates, P.A., Miami, for Appellants.
    Jane E. McGill of Allen, Kopet & Associates, PLLC, Fort Lauderdale, for Appel-lee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues the Judge of Compensation Claims (JCC) erred granting Claimant’s Motion for Modification seeking a recalculation of compensation benefits owed to Claimant, and denying the E/C’s Motion to Dismiss. The JCC did not err in denying the E/C’s Motion to Dismiss, and that issue is affirmed without further comment. We agree the JCC erred in granting Claimant’s Motion for Modification and thus erred in awarding additional temporary benefits, and reverse that portion of the order on appeal.

Background

As a result of Claimant’s compensable physical injuries, he filed two petitions for benefits (PFBs) in 2006 and 2008 seeking determination of his average weekly wage/compensation rate (AWW/CR) and entitlement to temporary partial disability (TPD) benefits from July 15, 2006, to March 30, 2007. On September 24, 2008, the JCC entered a Merit Order determining Claimant’s AWW/CR and awarding TPD benefits. This court affirmed that order, without written opinion, in AMS Staff Leasing v. Giraldo, 25 So.3d 1224 (Fla. 1st DCA 2009).

In September 2010, Claimant filed a Motion for Modification of the Merit Order alleging the JCC mistakenly determined the following facts:

Claimant was paid $500.00 per week by the Employer in lieu of compensation benefits for the period 7/15/06 through 11/22/06; that $500.00 should be deducted from the compensation rate of $683.00; and that the Carrier shall therefore pay $183.00 per week in compensation benefits to Claimant for said period.

Claimant alleged that, although the E/C issued Claimant six checks for $500 less taxes for the time period October 18, 2006, to November 22, 2006, Claimant never obtained the checks. Consequently, Claimant sought to have the Merit Order modified to state that the E/C owed and shall pay compensation benefits to Claimant .in the amount of $683 per week for the disputed period.

The JCC found that Claimant presented evidence to support his claim for modification based upon facts the JCC had previously overlooked in determining the amount of compensation benefits owed in the September 2008 Merit Order. Specifically, Claimant cited to deposition testimony of the E/C’s representative who testified that Claimant had not received payment in the amount of $500 as stated in the Merit Order. Based upon this error, the JCC modified the Merit Order as follows:

[Compensation benefits shall be paid to the Claimant from 10/18/06 through 11/22/06 at the rate of $683.00 a week rather than at $183.00 a week due to a mistake of fact as to the amount of wages paid to Claimant by the Employer for those weeks.

Analysis

The applicable statute, section 440.28, Florida Statutes (2006), provides:

Upon a judge of compensation claims’ own initiative, or upon the application of any party in interest, on the ground of a change in condition or because of a mistake in a determination of fact, the judge of compensation claims may, at any time prior to 2 years after the date of the last payment of compensation pursuant to the compensation order the party seeks to modify ... review a compensation case ... and ... issue a new compensation order which may terminate, continue, reinstate, increase, or decrease such compensation or award compensation.

The modification statute is not intended to afford a claimant or an employer an opportunity to re-litigate an issue that has been previously determined solely because of an increase in the quantum and probative force of evidence in support of a conclusion contrary to that reached in the prior determination. Smith v. Polk County Bd. of Comm’rs, 843 So.2d 321, 327 (Fla. 1st DCA 2003). Nevertheless, in limited situations, a petition based upon a mistake in a determination of fact may be brought when material evidence that adds something new becomes available after the entry of the order, which could not have been discovered at the time of the original proceeding and entry of the original order. Id.; see S. Bell Tel. & Tel. Co. v. Blackstock, 419 So.2d 360, 362 (Fla. 1st DCA 1982) (holding no basis for modification where evidence offered was merely cumulative and no new evidence which was not available at time of initial order was presented). Evidence that is merely cumulative to the evidence previously offered upon an identical issue and that adds nothing new is insufficient to show a mistake of fact. Smith, 843 So.2d at 327.

Here, although Claimant failed to present any new evidence during the 2011 motion hearing, the JCC granted Claimant’s Motion for Modification, stating in the final order that Claimant had presented the evidence required to be shown in support of his claim for modification of the 2008 Merit Order. In the final order, the JCC acknowledged her reliance upon facts “overlooked” in the 2008 Merit Order. At the time of the 2008 Merit Order, both parties were aware that Claimant had failed to pick up his weekly paychecks for the period from October 18, 2006, to November 22, 2006. In the original proceeding, the JCC accepted the deposition testimony of the E/C’s representative, who testified that Claimant never picked up his weekly paychecks for the period at issue. The JCC further acknowledged that any mistake of fact in calculating benefits owed to Claimant took place when the 2008 Merit Order was entered. Because Claimant’s evidence in support of his claim for modification was previously offered and available at the time of the original proceeding and entry of the original order, Claimant’s evidence was insufficient to show a mistake of fact. Smith, 843 So.2d at 327. Claimant’s proper remedy was to file a Motion for Rehearing pursuant to Florida Administrative Code Rule 60Q-6.122 at the time of the 2008 Merit Order. Accordingly, we reverse the JCC’s modification of the 2008 Merit Order, awarding Claimant additional temporary benefits and resulting interest.

AFFIRMED in part, and REVERSED in part.

VAN NORTWICK, LEWIS, and SWANSON, JJ„ concur.


author: LEWIS, J.

text:
    Ouafae E. PETERSON, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and The Hertz Corporation, Appellees.
    No. 1D11-848.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.

      Dale M. Rodriguez, Tampa, for Appellant.
    A. Robert Whaley, General Counsel, and Louis A. Gutierrez, Senior Attorney, Florida Unemployment Appeals Commission, Tallahassee; Peter Penrod, Assistant General Counsel, Agency for Workforce Innovation, Tallahassee.
   LEWIS, J.

Appellant, Ouafae E. Peterson, appeals from a final order of the Unemployment Appeals Commission (“UAC”), which affirmed the appeals referee’s (“referee”) determination that Peterson was not entitled to unemployment benefits. Peterson raises four issues on appeal, only one of which merits discussion. Specifically, Peterson argues that the Hertz Corporation’s (“Employer”) appeal to the referee was untimely, despite the referee’s finding that the appeal was timely filed. The UAC properly concedes that evidence in the record on appeal does not establish when the Employer filed the appeal. For the reasons explained below, we reverse and remand the UAC’s final order.

I. FACTS AND PROCEDURAL HISTORY

Following the Agency for Workforce Innovation’s (“Agency”) determination that Peterson was entitled to unemployment benefits, the Employer filed an appeal. A notice of hearing was mailed to the parties indicating that the issue to be addressed was whether Peterson was discharged for misconduct connected with work or voluntarily left work without good cause. At the hearing, Peterson raised the issue of timeliness of the Employer’s appeal, arguing that the Employer’s appeal was filed more than twenty days after the date the Agency mailed its determination. The referee made an oral finding that the appeal was timely filed on the 20th day. However, the Agency mailed the notice of determination on February 25, 2010, and the Employer’s appeal document was stamp dated as received by the Agency on March 23, 2010. Although the referee stated on the record that the Employer’s appeal was timely filed, she did not specify how she reached that conclusion. The referee did not question the Employer regarding when its appeal was filed or otherwise develop a record regarding the timeliness of the Employer’s appeal. Furthermore, the record does not contain a postmarked envelope or fax stamp to support the referee’s conclusion or otherwise verify when the appeal was filed.

After making an oral finding on timeliness of the Employer’s appeal, the referee proceeded with the hearing on the merits and reversed the Agency’s determination. Peterson appealed to the UAC. Subsequently, the UAC reversed the referee’s decision and remanded with instructions for the referee to resolve conflicting evidence with respect to the disputed issue of whether Peterson voluntarily left work without good cause attributable to the Employer. On remand, the referee complied with the UAC’s instructions and again reversed the Agency’s determination, which was affirmed by the UAC. This appeal followed.

The UAC moved this Court to relinquish jurisdiction indicating that the referee did not address the issue of whether the Employer’s appeal was timely filed and that Peterson did not raise the issue of timeliness of the Employer’s appeal before the UAC. The UAC also conceded that the record was unclear as to whether the Employer’s appeal was timely filed. Peterson opposed the UAC’s motion, arguing that the transcript of the proceedings before the referee reflects that the referee in fact addressed and ruled on the timeliness of the Employer’s appeal, and concluded that it was timely filed on the 20th and final day for filing an appeal. Although the record reveals no material evidence supporting the referee’s decision in this regard, Peterson argued that the referee did make a factual finding concerning the filing date of the appeal, which finding is refuted by the record showing that the Employer’s appeal was stamped as “received” on a date after the twenty-day period had expired.

We subsequently ordered the UAC to supplement the record with record evidence supporting the referee’s finding that the appeal was timely filed. The UAC responded that it was unable to comply with our order and again requested that we relinquish jurisdiction so that the referee may consider the timeliness issue and provide the parties an opportunity to present evidence on this issue. We granted the UAC’s motion and temporarily relinquished jurisdiction to the UAC with directions to relinquish its jurisdiction to the referee for further proceedings in order to create a supplemental record on the issue of timeliness of the Employer’s appeal. In compliance with our order, the UAC remanded the case to the referee for purposes of conducting an evidentiary hearing on the issue of timeliness of the appeal. The referee scheduled a hearing on the issue and notices were sent to the parties. On the scheduled date and time of the hearing, the referee made two attempts to contact the Employer. The referee made an initial call to the Employer’s contact person, and the contact person did not answer. The referee left a voicemail. When the Employer did not participate in the hearing or respond to the referee’s voicemail, the referee left a second voice-mail indicating that the case would be dismissed. Subsequently, the UAC filed a response to our order indicating that it was returning jurisdiction to this Court. Peterson responded by renewing her argument that the Employer’s appeal was untimely and that the referee lacked jurisdiction to hear the Employer’s appeal.

II. ANALYSIS

When the UAC reviews the referee’s findings, the referee’s findings must be “accorded a presumption of correctness.” Szniatkiewicz v. Unemp’t Appeals Commn., 864 So.2d 498, 501 (Fla. 4th DCA 2004). Accordingly, “[t]he UAC’s standard of review of the ... referee’s decision is whether the referee’s findings of fact were based on competent, substantial evidence in the record and whether the proceedings on which the findings were based complied with the essential requirements of the law.” Id. at 501-02. Both the appellate court and the UAC must accept the referee’s findings of fact unless those findings are not based on competent, substantial evidence. His Kids Daycare v. Fla. Unemp’t Appeals Comm’n, 904 So.2d 477, 479 (Fla. 1st DCA 2005).

Section 443.151(3)(a), Florida Statutes (2009), provides that the Agency’s determination is final unless the parties file an appeal within twenty days after the mailing of the notices, or in lieu of mailing, within twenty days after the delivery of the notices to the parties. With respect to the timeliness of such administrative appeals, Florida Administrative Code Rule 60BB-5.005 (2009) provides as follows:

(1) The appeal shall be filed within 20 calendar days of the date the determination or redetermination was mailed to the appellant’s last known address or, in the absence of mailing, the date of delivery to the appellant.
(2) The appeal shall be filed by mailing . the appeal document ...; by facsimile transmission of the appeal document to any .location designated in subsections 60BB-5.004(1), (2), and (3), F.A.C.; or by hand delivery....
(3) Appeals filed by mail shall be considered to have been filed when postmarked by the United States Postal Service. Appeals filed by hand delivery or facsimile shall be considered to have been filed when date stamped received at the authorized location.
(4) Upon receipt of an appeal delivered in person or by facsimile transmission, the Commission, Agency for Workforce Innovation or Office of Appeals employee shall record the date of receipt on the appeal document.

The late filing of an appeal deprives the referee of jurisdiction to consider the merits of the underlying claim. Stuart v. Fla. Unemp’t Appeals Comm’n, 961 So.2d 1020, 1021 (Fla. 1st DCA 2007). A determination of timeliness of an appeal is an issue of fact. Mendelsohn v. Fla. Unemp’t Appeals Comm’n, 851 So.2d 208, 209 (Fla. 1st DCA 2003). Thus, “[t]he rules place an affirmative duty on the appeals referee to [make a finding of fact regarding] the timeliness of the appeal sua sponte.” Stuart, 961 So.2d at 1021; see also Fla. Admin. Code R. 60BB-5.007(1)-(2) (2009).

Rule 60BB-5.007 provides the following procedure to determine whether there was a late filing of an appeal:

(1) If it appears that the appeal initiating the proceedings was not filed within the time allowed by law, the appeals referee shall notify the parties that timeliness of the appeal shall be one of the issues to be considered at the hearing.
(2) The appeals referee shall take evidence on and consider the issue of timeliness of the appeal first. If the referee finds that the appeal was not filed within the time allowed by law, it shall be dismissed. The dismissal decision shall be limited to findings of fact and a conclusion of law with respect to the timeliness issue.
(3) If the referee finds that the appeal was timely filed, evidence shall then be taken with regard to the merits of the case, and the appeals referee’s decision shall include findings of fact and conclusions of law with respect to both the timeliness issue and the merits of the appeal.

Here, although the referee stated on the record that the Employer’s appeal was timely filed, she did not specify how she reached that conclusion. The referee did not question the Employer regarding when its appeal was filed or otherwise develop a record regarding the timeliness of the Employer’s appeal. In addition, the record does not contain a postmarked envelope or fax stamp to support the referee’s conclusion or otherwise verify when the appeal was filed. More importantly, the only record evidence on the timeliness of the appeal reflects that the Employer’s appeal was stamped as received by the Agency on March 23, 2010, more than twenty days after the determination at issue was mailed. Furthermore, upon this Court’s relinquishment of jurisdiction to the UAC for the referee to conduct an evidentiary hearing on the issue of timeliness of the Employer’s appeal, the Employer was duly noticed of the hearing and was given an opportunity to present evidence on the issue of timeliness. However, the Employer did not attend the hearing or respond to the referee’s voicemails. Consequently, on remand to the UAC, no evidence was presented showing that the Employer’s appeal was timely filed. Therefore, the record is devoid of any evidence supporting the referee’s finding that the Employer’s appeal was timely filed. As such, the referee’s finding that the Employer’s appeal was timely filed is not supported by competent, substantial evidence.

III. CONCLUSION

Based on the foregoing, we reverse the UAC’s final order and remand with instructions to dismiss the Employer’s appeal.

REVERSED and REMANDED with instructions.

WOLF and SWANSON, JJ., concur.


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    F. Lloyd BLUE, Jr., Appellant, v. COVINGTON COUNTY BANK, High Noon Development, LLC, a Florida Limited Liability Company, Franklin H. Watson, Deborah Webb Watson, Mikel Lee Perry, and Whitney National Bank, Appellees.
    No. 1D11-0204.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.

      Ronald A. Mowrey and Matthew D. Morton of Mowrey Law Firm, P.A., Tallahassee, for Appellant.
    George Ralph Miller, DeFuniak Springs; Michael W. Mead, Ft. Walton Beach; Linda A. Hoffman of Carver Dar-den Koretzky, Pensacola; and Kimberly Watson Sewell, Seagrove Beach, for appel-lee Whitney National Bank (no appearances).
   PER CURIAM.

F. Lloyd Blue, Jr. (“Blue”) brought this appeal seeking review of a Final Summary Judgment and an order denying rehearing. In these orders, the trial court reserved jurisdiction to determine the fair market value of property received by Covington County Bank (“Covington”), the appellee, in satisfaction of the underlying debt. In light of the reservation of jurisdiction, the appeal is premature and must be dismissed. Fla. R.App. P. 9.110(J).

The Final Summary Judgment entered judgment, without language of execution, for the amount owed Covington based on Blue’s personal guaranty of a debt. The debt was also secured by a mortgage. A final judgment of foreclosure had previously been entered in this case and the subject real property was sold at a foreclosure sale. Noting Blue’s entitlement to credit, the trial court reserved jurisdiction to determine the fair market value of the property. Subsequently, the trial court denied Blue’s motion for rehearing. The order on the motion also ordered Covington to immediately credit the sum of $1,300,000.00 to the final judgments and to execute a partial satisfaction of judgment in that amount. The trial court again reserved jurisdiction to determine the fair market value of the property to address whether the value of the property exceeded the amount of the credit.

Blue argues that the orders on appeal constitute a final appealable judgment, despite the reservations of jurisdiction, because they resolve the entire matter between the parties and leave nothing further to be done by the trial court. Blue asserts that should the Court dismiss the appeal, the Summary Final Judgment will become enforceable against him in the entire amount owed less the amount of the credit. Further, this area of the law is currently in flux and requires clarification.

An order is final and ripe for appeal when it completes the judicial labor of the lower tribunal. Caufield v. Cantele, 837 So.2d 371, 375 (Fla.2002). In post-foreclosure proceedings to establish a deficiency judgment, the trial court must determine the value of property sold in satisfaction of the underlying debt. Farah v. Iberia Bank, 47 So.3d 850 (Fla. 3d DCA 2010) (explaining that “the process required to establish the right to a deficiency judgment [ ] prominently includes a valuation of the mortgaged property”); Hatton v. Barnett Bank of Palm Beach County, 550 So.2d 65 (Fla. 2d DCA 1989) (remanding “to find correct amounts to be credited to appellants before determining the amount of the final deficiency judgments”); Gottschamer v. August, Thompson, Sherr, Clark & Shafer, P.C., 438 So.2d 408 (Fla. 2d DCA 1983) (agreeing that the guarantors of a promissory note were entitled to a set-off against the final summary judgment on the guaranty); Provident Nat’l Bank v. Thunderbird Assocs., 364 So.2d 790, 798 (Fla. 1st DCA 1978) (holding guarantor on a note secured by a mortgage “cannot be held liable for any part of the indebtedness adjudicated by the final judgment of foreclosure” that had been offset); Fulton v. R.K. Cooper Const. Co., 208 So.2d 863 (Fla. 3d DCA 1967) (holding, “as a matter of law, the bid price paid at a foreclosure sale is not conclusive as to the market value of the property in a subsequent law action for deficiency decree upon the note”). In the instant appeal, the trial court recognized Blue’s entitlement to a set-off and reserved jurisdiction accordingly. In light of the reservation of jurisdiction, the trial court’s judicial labor is not complete and the orders are not final. See Johnson v. Johnson, 902 So.2d 241, 243 (Fla. 1st DCA 2005) (distinguishing between final order on appeal and nonfinal order that “affirmatively and specifically reserved jurisdiction”); Hamilton v. Ryan Foods, Inc., 867 So.2d 1217 (Fla. 1st DCA 2004); Raymond James & Assocs., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003). Finally, although the Court lacks jurisdiction to address the merits of the appeal, it is worth noting that where a trial court has determined that a hearing is necessary to determine the amount of a deficiency, if any, a mortgagee should not be permitted to attempt to execute on a promissory note following the foreclosure sale and before entry of a deficiency judgment. Century Group, Inc. v. Premier Financial Servs. East, L.P., 724 So.2d 661 (Fla. 2d DCA 1999); see also Farah, 47 So.3d at 851 (disapproving efforts to reach mortgagor’s personal assets before entry of a deficiency judgment).

DISMISSED.

PADOVANO, THOMAS, and SWANSON, JJ., concur.


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    C.S.K., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6790.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.

      Elizabeth Yerrington, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is granted a belated appeal of the November 7, 2011, restitution order in Duval County Circuit Court case number 16-2011-CJ-002669. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(6)(D). If petitioner qualifies for appointed counsel, the trial court shah appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

PADOVANO, THOMAS, and SWANSON, JJ., concur.


text:
    Amable J. MOYA-PERGUERO, Appellant, v. TRUCKS AND PARTS OF TAMPA, INC. and Ameritrust Insurance Corp., Appellees.
    No. 1D11-3425.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Bradley Guy Smith of Smith, Feddeler, Smith & Miles, P.A., Lakeland, Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Gregory D. White and William H. Rog-ner of Hurley, Rogner, Miller, Cox, War-anch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) dismissing Claimant’s petition for benefits (PFB). We reverse and remand because, as Claimant asserts, and as the Employer/Carrier concedes, the JCC erred in sua sponte dismissing the PFB after a hearing on a motion for sanctions requesting only attorney’s fees. Parties are entitled to notice of the issues to be determined at a hearing, and an order that is not in accord with the understanding with which the workers’ compensation hearing was undertaken and participated in is a denial of due process and must be reversed. See Sch. Dist. of Hillsborough Cnty. v. Dickson, 67 So.3d 1080, 1083 (Fla. 1st DCA 2011).

REVERSED and REMANDED for further proceedings.

BENTON, C.J., DAVIS, and MARSTILLER, JJ., Concur.


text:
    Shawn Lamont BLACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1262.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Nancy A. Daniels, Public Defender, and Maria Ines Súber, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Appellant’s motion for rehearing, withdraw our previous per curiam af-firmance, and substitute this opinion in its place.

Appellant contends in part that his convictions for drug offenses under chapter 893, Florida Statutes, should be set aside based upon Shelton v. Secretary, Department of Corrections, 23 Fla. L. Weekly Fed. D11, 802 F.Supp.2d 1289 (M.D.Fla. 2011). We recently rejected this argument in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). Accordingly, we AFFIRM.

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


text:
    Harris SCHWARTZBERG; Harris Schwartzberg Trust; Steven Schwartzberg Trust; Judith Schwartzberg Trust; Schwartzberg Descendants Trust; Harris Schwartzberg 2003 Trust; Steven Schwartzberg 2003 Trust; HS Midwest Trust # 1, JS Midwest Trust; Fam Midwest Trust; Judith Schwartzberg 2003 Trust; Harris Schwartzberg 2004 GST Trust 1; Harris Schwartzberg 2004 Trust 2; Judith Schwartzberg 2004 GST Trust 1; Judith Schwartzberg 2004 Trust 2; Schwartzberg Family GST Trust; Schwartzberg 2004 Descendants Trust; JS National Trust; HS National Trust # 1; HS National Trust # 2; Fam National Trust, Appellants, v. The ESTATE OF Helene F. SIMONEAU, by and through Laurie Jean HARTNETT, Personal Representative, SA-PG-Gainesville, LLC; SA-PG Operator Holdings, LLC f/k/a New Rochelle Administrators, LLC; SA-Master Operator Holdings, LLC; Cypress Health Care Management Region I, LLC; Cypress Health Care Holdings, LLC; Kala J. Fuhrmann and April Rose Dorce (as to Palm Garden of Gainesville), Appellees.
    No. 1D11-2557.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2012.
    Daniel E. Dias and Dante M. Skourellos of Mancuso & Dias, P.A., Tampa, for Appellants.

      Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for Appellees.
   PER CURIAM.

Appellants allege the trial court erred in denying their motions to dismiss for lack of personal jurisdiction. We agree with appellants and find that this case is materially indistinguishable from Greystone Tribeca Acquisition, L.L.C. v. Ronstrom, 863 So.2d 473 (Fla. 2d DCA 2004), and Extendicare, Inc. v. Estate of McGillen, 957 So.2d 58 (Fla. 5th DCA 2007). We, therefore, reverse and remand with directions that the trial court vacate its prior order and dismiss the claims against appellants for lack of personal jurisdiction.

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


author: CIKLIN, J.

text:
    Stacy SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3865.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.
    Richard L. Rosenbaum of Arnstein & Lehr LLP, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

In this appeal, we address the limits of Florida’s jurisdiction over a defendant whose alleged criminal acts occurred on an airplane outside of Florida. Stacy Sanders appeals the trial court’s denial of her motion to dismiss the single charge of grand theft against her. Because the charged crime was completed before Sanders entered Florida, we find that the trial court should have granted the motion to dismiss for lack of jurisdiction. As such, we reverse and remand for entry of an order granting the motion to dismiss.

On June 25, 2009, Sanders, a passenger on a commercial flight from Phoenix, Arizona to Fort Lauderdale, Florida, allegedly stole $500 from a fellow passenger’s purse. A flight attendant intervened and compelled Sanders to return the money. This all occurred approximately forty-five minutes before the airplane landed in Fort Lauderdale. Both Sanders and the state conceded that the plane was not in Florida’s territory at any point when the theft or recovery of the money took place. When the plane landed, Sanders was arrested by the Broward County Sheriffs Office and later charged by the state with grand theft in excess of $300.

Sanders filed a motion to dismiss the charge for lack of jurisdiction. Sanders argued that pursuant to section 910.005, Florida Statutes (2008), Florida did not have jurisdiction over her for the alleged theft because all of the elements of the theft occurred before the plane reached Florida. The state argued that Sanders would have had to leave the plane with the victim’s money after the plane landed in Florida in order to permanently deprive her of it; therefore, according to the state, Sanders’s actions constituted an attempt to commit the crime of grand theft in Florida. The trial court was persuaded by the state’s argument and denied the motion to dismiss. Sanders then pled no contest to the grand theft, reserving her right to appeal the trial court’s denial of the motion to dismiss.

“The standard of review of a trial court’s denial of a motion to dismiss is de novo.” Simpson v. State, 83 So.3d 776, 778 (Fla. 4th DCA 2010).

“Jurisdiction is the very power of the state to exert the influence of its courts over a criminal defendant....” Lane v. State, 388 So.2d 1022, 1026 (Fla.1980). Florida’s criminal jurisdiction statute provides, in relevant part:

(1) A person is subject to prosecution in this state for an offense that she or he commits, while either within or outside the state, by her or his own conduct or that of another for which the person is legally accountable, if:
(a) The offense is committed wholly or partly within the state;
(b) The conduct outside the state constitutes an attempt to commit an offense within the state....

§ 910.005(1), Fla. Stat. (2008).

Sanders contends that the alleged grand theft does not fall under either paragraph (a) or (b) of subsection 910.005(1). The trial court based its denial of the motion to dismiss on the notion — advanced by the state on appeal — that Sanders’s actions constituted an attempt to commit grand theft within Florida, thus falling under paragraph (b).

This issue is complicated by the theft statute itself, which is unique in that it encompasses both the completed offense and the attempt as the same offense. See § 812.014(l)(a), Fla. Stat. (2008) (“A person commits theft if he or she knowingly obtains or uses, or endeavors to obtain or to use, the property of another with intent to, either temporarily or permanently ... [djeprive the other person of a right to the property or a benefit from the property.”); Colletti v. State, 74 So.3d 497 (Fla. 2d DCA 2011) (“[Tjhere is no separate crime of attempted theft.”); Brown v. State, 414 So.2d 15, 16 (Fla. 5th DCA 1982) (“The crime of theft encompasses not only the completed theft but also the attempt to steal.”).

It is apparent that Sanders allegedly committed all of the elements of theft prior to the plane’s entering Florida’s territory. When Sanders took physical possession of the victim’s money, she would no longer be “endeavor[ing] to obtain” the victim’s property because she would have already obtained the victim’s property with the intent to permanently deprive her of it. This means that the theft was fully executed before the plane reached Florida. Sanders could not be “endeavoring] to obtain” the victim’s property because she already had done so. Thus, the theft was not “committed wholly or partly within” Florida, so paragraph (a) of subsection 910.005(1) does not apply. Further, because the crime was completed the moment she obtained the victim’s money with the intent to deprive her of it permanently, Sanders’s actions on the plane could not “constitute! ] an attempt to commit an offense within” Florida under 910.005(l)(b).

In denying the motion to dismiss, the trial court relied primarily on a previous case from this court, State v. Saunders, 508 So.2d 473 (Fla. 4th DCA 1987), which we find factually distinguishable. In Saunders, the defendant was charged with possession of cannabis in excess of twenty grams after the U.S. Coast Guard boarded his boat in international waters forty miles east of Fort Lauderdale and discovered what amounted to seventy pounds of cannabis. Id. at 474. The state offered sufficient facts to infer that the defendant was returning to Fort Lauderdale when the boat was boarded. The defendant filed a motion to dismiss for lack of jurisdiction under subsection 910.005(1), which the trial court granted.

On appeal, we reversed the dismissal of the charge, finding that the defendant’s actions amounted to an attempt to commit the crime of possession within Florida, and therefore paragraph (b) of subsection 910.005(1) controlled. We concluded that the defendant’s actions outside of Florida — possessing cannabis on a boat headed for Florida — amounted to an attempt to commit the offense' of possession within Florida. While it was not explicitly stated in the opinion, it is important to note that drug possession offenses typically are ongoing by nature. See, e.g., Menendez v. State, 521 So.2d 210, 212 (Fla. 1st DCA 1988) (“Appellant’s trafficking offense, as with many drug possession offenses, was essentially ongoing. Appellant was in violation of the law during the entire time he was in possession.... ”).

While the defendants’ names and the jurisdiction issues presented are similar, ultimately Saunders and the instant case are not analogous. The key difference is the charged crimes in each case. In Saunders, jurisdiction was found because the defendant’s actions constituted an attempt to possess cannabis in Florida. The crime of possession was ongoing and would have continued in Florida had the defendant not been intercepted by the Coast Guard. In the instant case, all of the elements of the crime of theft occurred on the plane before it reached Florida’s territory, so it could not be classified as an attempt to commit the offense in Florida.

We find Battle v. State, 365 So.2d 1035 (Fla. 3d DCA 1978), more on point. In Battle, the defendant appealed his conviction for solicitation of a felony. He argued that Florida did not have jurisdiction over him for the crime of solicitation because the undisputed evidence indicated that all of the acts related to the solicitation itself took place in New Jersey. Id. at 1036. The only possible connection to Florida was that the solicitee traveled to Florida after the solicitation allegedly to commit the solicited offense. The Third District concluded:

[T]he solicitation was complete after it was made and no element of the crime of solicitation took place in Florida; therefore, Florida was without jurisdiction to try appellant for this offense. In this case, although the acts solicited were to be performed in Florida, the crime charged in the indictment of solicitation was committed wholly outside Florida.

Id. at 1037. The facts from Battle are analogous to the instant case, in which the charged offense — grand theft — was completed before the airplane reached Florida’s territory. Thus, we find that the trial court should have granted the motion to dismiss because all of the elements of grand theft occurred entirely before the plane reached Florida’s territory.

In conclusion, we reverse the order denying the motion to dismiss and remand with instructions for the trial court to enter an order granting the motion to dismiss.

Reversed and remanded with instructions.

GERBER and CONNER, JJ., concur.

      . In fact, Sanders could have had a change of heart immediately afterward and returned the money to the victim and the theft offense still would have been complete — before the plane reached Florida.

      . It is unclear why the defendant was not charged with more than possession over twenty grams given the substantial amount of cannabis discovered on the boat.


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    Basil BURFORD, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-2205.
    District Court of Appeal of Florida, Fourth District.
    Jan. 25, 2012.

      Deana K. Marshall of the Law Office of Deana K. Marshall, P.A., Riverview, and Basil Burford, Arcadia, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Basil Burford petitions this court for a writ of habeas corpus alleging that appellate counsel was ineffective for failing to raise one issue of fundamental error. We agree and grant the petition.

While fleeing from an officer attempting to make a traffic stop, the petitioner ran through a red light where his vehicle collided with a pickup truck, killing the other driver. He was convicted of one count of manslaughter by culpable negligence, vehicular homicide, and fleeing a law enforcement officer. On direct appeal, we affirmed his manslaughter conviction; however, we remanded for the trial court to vacate the vehicular homicide count — a lesser included offense of manslaughter by culpable negligence — as it violated double jeopardy. See Burford v. State, 8 So.3d 478 (Fla. 4th DCA 2009).

Burford correctly points out that the trial court failed to instruct the jury on justifiable and excusable homicide in connection with the manslaughter instruction. This court has previously recognized this to be fundamental error and found appellate counsel ineffective for not raising it. See Jenkins v. State, 990 So.2d 702, 703 (Fla. 4th DCA 2008).

The State concedes that the instruction was not read, but argues that failure to give the instruction is not per se fundamental error, relying on cases such as Pena v. State, 901 So.2d 781, 786 (Fla.2005), and Franco v. State, 901 So.2d 901 (Fla. 4th DCA 2005). In Franco, the trial court did not read the excusable homicide instruction in connection with the manslaughter charge, but did read it as part of second-degree murder. This court found that it was not fundamental error as to those facts. Id. at 904-05. Unlike in Franco, the instruction here was not read at all. See Jenkins, 990 So.2d at 703. “In all murder and manslaughter trials, the jury must be instructed as to the definitions of justifiable and excusable homicide.” Black v. State, 695 So.2d 459, 460 (Fla. 1st DCA 1997) (citing State v. Smith, 573 So.2d 306 (Fla.1990)).

In Jimenez v. State, 994 So.2d 1141, 1142 (Fla. 3d DCA 2008), the Third District noted:

“[Bjecause manslaughter is a ‘residual offense, defined by reference to what it is not,’ a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” State v. Lucas, 645 So.2d 425, 427 (Fla.1994) (citations omitted). “[FJailure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” Id.

As to the State’s suggestion that the facts, themselves, do not support excusable homicide, we reject this argument in accordance with Black, 695 So.2d at 460 (“It matters not whether any view of the evidence could support a finding of either excusable or justifiable homicide”).

We grant the petition alleging ineffective assistance of appellate counsel and remand for a new trial. See Jenkins, 990 So.2d at 702.

Petition Granted.

STEVENSON, GERBER and CONNER, JJ., concur.