author: GROSS, J.

text:
    Rene RODRIGUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-556.
    District Court of Appeal of Florida, Fourth District.
    July 13, 2011.
    Rehearing Denied Aug. 18, 2011.

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

We write primarily to address one issue — whether a witness’s trial testimony may be impeached by the introduction of a prior inconsistent statement when the witness says that he does not remember the earlier statement. By claiming such a lack of memory, the witness does not “distinctly admit” the prior inconsistent statement within the meaning of section 90.614(2), Florida Statutes (2009), so that extrinsic evidence of the statement is admissible as impeachment.

Rene Rodriguez, his girlfriend, the victim, and others were playing cards at night in Rodriguez’s apartment. A fight started between Rodriguez and his girlfriend. Rodriguez and the girlfriend left the apartment and were followed a few minutes later by the victim. Shortly thereafter, several witnesses saw a bald man in a white shirt with tattoos either shoot the victim or leave the scene with a gun just after the shooting. Not long after the shooting, Rodriguez was caught nearby after he ran when officers told him to “freeze.” Rodriguez threw a gun away as he ran. Although he was not wearing a shirt when apprehended, a white shirt was found in the area where he had been. At a show up near the scene of the arrest, two witnesses to the shooting identified Rodriguez as the shooter.

In the corridor near Rodriguez’s apartment, the police found a box of bullet casings and five casings of the same caliber with markings unique to the pistol that Rodriguez had discarded. The victim’s nephew testified that he had seen Rodriguez remove casings from the gun and throw them down.

Due to concerns over Rodriguez’s mental status, a police officer took him to the hospital. On the ride, Rodriguez screamed, “I shot that guy. I killed him.” He turned to the officer and calmly asked, “[D]id I kill him?”

At trial, the victim testified by deposition. He said that after Rodriguez and the girlfriend left the card game, he had heard a commotion in Rodriguez’s bedroom and saw the girlfriend come out with blood on her face followed by Rodriguez who was carrying a revolver. The victim went after him and tried to convince Rodriguez not to do something stupid; he urged him to go back inside and put the gun away. As he stood facing Rodriguez, Rodriguez shot him in the stomach.

On cross examination, the victim agreed that he had memory problems and that he did not remember telling a detective that he did not know who shot him. He insisted that he remembered the incident clearly and answered, “Yes,” when asked if he remembered “Mr. Rodriguez shooting you.”

On recross examination, the victim again said he did not remember ever talking with a detective in the hospital.

The jury found Rodriguez guilty of the (1) lesser included offense of attempted second degree murder with specific findings that he actually possessed and discharged a firearm and that he had inflicted great bodily harm, (2) possession of a firearm by a convicted felon, and (3) possession of cocaine.

Rodriguez argues that the trial court erred when it did not allow him to impeach the victim by presenting the testimony of Detective Harvey that after the shooting the victim said he did not know who shot him.

Detective Harvey interviewed the victim in the hospital a few weeks after the shooting and two years before the victim’s deposition. He testified that the victim was groggy and heavily sedated. He took a very short statement. Rodriguez asked Detective Harvey what the victim said to him at the hospital to establish that the victim had given a prior inconsistent statement. The state objected that impeachment by prior inconsistent statement was improper because the victim did not remember talking to the detective in the hospital. The trial court sustained the objection. Rodriguez proffered Detective Hardy’s testimony that the victim said that he did not know who shot him and did not remember if he was with anyone at the time of the shooting.

The trial court erred by refusing to allow Detective Harvey to testify that the victim said in the hospital that he did not know who shot him; that statement was admissible as a prior inconsistent statement under section 90.608(1), Florida Statutes (2008). If the earlier statement is inconsistent with a witness’s in-court testimony, the law does not require the witness to remember the earlier statement for extrinsic evidence of it to be admissible as impeachment.

The Supreme Court described the operation of a section 90.608(1) prior inconsistent statement in Pearce v. State, 880 So.2d 561 (Fla.2004):

The theory of admissibility is not that the prior statement is true and the in-court testimony is false, but that because the witness has not told the truth in one of the statements, the jury should disbelieve both statements. To be inconsistent, a prior statement must either directly contradict or be materially different from the expected testimony at trial. The inconsistency must involve a material, significant fact rather than mere details.

Id. at 569 (Internal citation omitted). Here, the victim’s hospital statement directly contradicted his trial testimony that Rodriguez shot him, so it was “inconsistent” within the meaning of section 90.608(1).

Next, the defense satisfied the requirement of section 90.614(2), Florida Statutes (2008) by directing the victim’s attention to the time, place, and circumstances of the earlier statement. Section 90.614(2) provides in pertinent part:

Extrinsic evidence of a prior inconsistent statement by a witness is inadmissible unless the witness is first afforded an opportunity to explain or deny the prior statement and the opposing party is afforded an opportunity to interrogate the witness on it, or the interests of justice otherwise require. If a witness denies making or does not distinctly admit making the prior inconsistent statement, extrinsic evidence of such statement is admissible.

When a witness at trial does not remember the earlier “inconsistent” statement, the witness does not “distinctly admit making” the statement under section 90.614(2). See Pearce, 880 So.2d at 568, 570. In Pearce, a witness did not “recall” or “remember” telling a detective a material fact that contradicted the witness’s in-court testimony. Id. at 569. The Supreme Court held that the witness’s lack of memory meant that the witness did “not distinctly admit making the prior inconsistent statement” under section 90.614(2), so that “the trial court erred by not permitting defense counsel to admit extrinsic evidence,” a videotape of the witness’s prior statement. Id. at 570.

This case also resembles Pugh v. State, 637 So.2d 313 (Fla. 3d DCA 1994). There, a witness testified in deposition that the defendant was not an active participant in the robbery; at trial, the witness changed his testimony and said that the defendant “was directly involved in the robbery by holding a gun and ordering everybody to the ground.” Id. at 314. The defendant tried to impeach the witness with the prior inconsistent statement, but the witness did not remember the deposition questions and answers and the trial court refused to allow the impeachment. Id. The third district held that the witness’s failure to remember the deposition testimony meant that he did not “distinctly admit making” the prior statement under section 90.614(2), so that the deposition testimony was admissible extrinsic evidence of impeachment as a prior inconsistent statement. Id.; see C. Ehrhardt, Florida Evidence §§ 608.4, 614.1 (2006 ed.) (observing that “[e]vidence of a prior impeaching statement may be introduced when a witness claims an inability to remember whether he or she made the prior statement”).

Confusion often arises in this area due to a different but related fact pattern — where a witness does not remember an earlier statement to the police, but does not give testimony inconsistent with it at trial. For example, if the crucial issue in a case is whether a traffic light was red, and at trial the witness cannot remember either the color of the light or the contents of an earlier statement, the witness cannot be impeached by a prior inconsistent statement that the light was red. The prior statement cannot be introduced “to fill the void of an absence of recollection.” Laur v. State, 781 So.2d 452, 454 (Fla. 4th DCA 2001).

This is one holding of Brooks v. State, 918 So.2d 181 (Fla.2005), upon which the state relies. In that case, a defense witness testified that the defendant came to her apartment clothed in black nylon pants and used the bathroom. She said nothing about what the defendant wore when he exited the bathroom. The prosecutor asked her if she remembered telling a police officer that the defendant came out of the bathroom wearing shorts; she answered, “No, I don’t remember.” Id. at 200. Over objection, the state called the police officer to testify about his earlier interview with the witness, including the “portion in which she stated that [the defendant] changed into shorts in the bathroom.” Id. The Supreme Court held that it was error to have permitted such impeachment as a prior inconsistent statement. Id. There was no inconsistency because the trial testimony did not contradict the earlier statement; the witness did not say anything about what the defendant wore when he left the bathroom. To explain its ruling, the Court quoted an Oregon decision:

The controlling issue on appeal is whether it was appropriate to impeach [a witness’] asserted lack of memory by showing substantive statements that she made when her memory was fresh. As a matter of logic, that is not appropriate impeachment by inconsistent statement. The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory. The only thing that is inconsistent with a claimed loss of memory is evidence that suggests that the witness in fact remembers.

Id. (quoting James v. State, 765 So.2d 763, 766 (Fla. 1st DCA 2000) (quoting State v. Staley, 165 Or.App. 395, 995 P.2d 1217, 1220 (2000))). Unlike the situation in Brooks, the victim’s trial testimony in this case identifying the defendant as the shooter was inconsistent with his hospital statement that he did not know who shot him.

Even though it was error to restrict cross examination, such error was harmless; beyond a reasonable doubt it did not affect the verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The evidence was not significant impeachment of the victim. The victim emphasized that he did not remember anything until he woke up six months after being shot, at which point he knew it was Rodriguez who shot him. Detective Harvey’s proffer indicated that the victim was heavily sedated at the hospital when he said he did not know who shot him. More significant is the fact that Rodriguez told an officer that he killed the victim and later asked if he had killed him. The gun used in the shooting was linked to Rodriguez. All six of the eyewitnesses gave similar descriptions of the shooter/man-with-the-gun which matched Rodriguez’s description. The absence of flimsy impeachment testimony did not contribute to the verdict.

We briefly address three other issues. There was no fundamental error in the attempted manslaughter instruction. See Williams v. State, 40 So.3d -72 (Fla. 4th DCA 2010), review granted, 64 So.3d 1262 (Fla. June 7, 2011); but see Burton v. State, — So.3d -, 2011 WL 1326258 (Fla. 5th DCA 2011); Houston v. State, 56 So.3d 908 (Fla. 2d DCA 2011); Lamb v. State, 18 So.3d 734 (Fla. 1st DCA 2009). The trial court did not abuse its discretion in refusing to suppress the in-court and out of court identifications. See Perez v. State, 648 So.2d 715 (Fla.1995); Adderly v. State, 44 So.3d 167, 169 (Fla. 4th DCA 2010). We find no error in the imposition of three mandatory minimum sentences on the attempted second degree murder. The juiy found that he had actually possessed a firearm pursuant to subsection 775.087(2)(a)1, discharged a firearm pursuant to subsection 775.087(2)(a)2, and inflicted great bodily harm on the victim under section 775.087(2)(a)3. Each subsection carries a separate mandatory minimum sentence. It was the “intent of the Legislature that offenders who actually possess, carry, display, use, threaten to use, or attempt to use firearms ... be punished to the fullest extent of the law, and the minimum terms of imprisonment imposed pursuant to this subsection shall be imposed for each qualifying felony count for which the person is convicted.” § 775.087(2)(d), Fla. Stat. (2009) (Italics supplied).

Affirmed.

HAZOURI and CIKLIN, JJ., concur.

      . Professor Ehrhardt notes that a witness’s inability to remember prior statements may prevent a statement from being used to refresh recollection; however, "if the prior statement is offered to impeach, section 90.614 permits proof of the prior inconsistent statement when the witness does not remember making it.” Ehrhardt, Florida Evidence § 608.4 n. 38 (2006 ed.).


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    The STATE of Florida, etc., Appellant, v. Carolina LEYVA, Appellee.
    No. 3D10-3031.
    District Court of Appeal of Florida, Third District.
    July 13, 2011.

      Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel, DHSMV — Legal Office, Lake Worth, for appellant.
    Robert S. Reiff, Miami, for appellee.
    Before RAMIREZ, SHEPHERD, and SALTER, JJ.
   SHEPHERD, J.

The State of Florida, Department of Highway Safety and Motor Vehicles appeals a circuit court order to the Department to enforce a subpoena issued, pursuant to section 322.2615(6)(b), Florida Statutes (2010), to Miami-Dade County Police Officer Robert McGrath to appear at a formal review administrative hearing requested by Carolina Leyva to contest the suspension of her driver’s license for driving under the influence of alcohol. We reverse the order under review.

The procedure to enforce ’noncompliance by a witness with the subpoena issued pursuant to section 322.2615(6)(b) appears in the next succeeding subsection and reads as follows:

(c) A party may seek enforcement of a subpoena under paragraph (b) by filing a petition for enforcement in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides. A failure to comply with an order of the court shall result in a finding of contempt of court.
However, a person is not in contempt while a subpoena is being challenged.

§ 322.2615(6)(c) Fla. Stat. (2010) (emphasis added). A plain reading of this subsection of the Florida Statutes reveals that enforcement of noncompliance with a subpoena directing a witness to appear at an administrative formal review hearing is contemplated “in the circuit court of the judicial circuit in which the person failing to comply with the subpoena resides” by “an order of the court.” The natural workings of such proceedings are coercive in nature and rooted in the power of contempt. The power to hold a person in contempt is indisputably a judicial power. Ducksworth v. Boyer, 125 So.2d 844, 845 (Fla.1960). Separation of powers principles prohibit a court from delegating or assigning the judicial power to a coordinate branch of the government in this state. See Article II, § 3, Fla. Const. (2010); Perry v. State, 513 So.2d 254, 255 (Fla. 2nd DCA 1987) (finding a trial court should not delegate its responsibility of determining restitution and requiring its payment to a nonjudicial officer); In re Alkires Estate, 144 Fla. 606, 623, 198 So. 475, 482 (Fla.1940) (supplemental op.) (“The judicial power ... [is] not delegable and cannot be abdicated in whole or in part by the courts.”). The doctrine is one that is followed strictly in this state. See Askew v. Cross Key Waterways, 372 So.2d 913, 924 (Fla.1978) (finding that the Florida Constitution expressly limits one branch of government from exercising any powers belonging to either of the other branches of government).

For the foregoing reasons, we reverse the order under review for further proceedings consistent with this opinion.

Reversed and remanded.


author: PER CURIAM.

text:
    Gary LAMBERT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2884.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Philip J. Massa, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal, the defendant challenges the trial court’s ruling on his claims for postconviction relief and the amended sentencing order. We affirm, but remand for the entry of a corrected order of revocation that reflects a violation of only condition 5. See, e.g., Ortiz v. State, 2 So.3d 318, 319 (Fla. 4th DCA 2008) (recognizing that written order of revocation must conform to trial court’s oral pronouncement).

Affirmed and Remanded.

STEVENSON, GROSS and TAYLOR, JJ., concur.


text:
    Ismael CESAR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2367.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.

      Ismael Cesar, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Ismael Cesar appeals the denial of a rule 8.800(a) motion to correct an illegal sentence. He does not allege that the predicate felony necessary to qualify him as a habitual violent felony offender does not exist as a matter of law, and his sentence is legal. See Bover v. State, 797 So.2d 1246 (Fla.2001).

Cesar' was on probation for four offenses including aggravated assault with a deadly weapon when he committed the offenses in this case, 04-011459 CF10A. The aggravated assault conviction qualified him for habitual violent felony offender sentencing. § 775.084(1)(b), Fla. Stat. (2004); see also State v. Richardson, 915 So.2d 86 (Fla. 2005). Contrary to the arguments in his motion, there was no illegal double enhancement. The consecutive five-year term was imposed for violations of probation in a separate case, 03^4449 CF10A. The offenses did not arise from the same criminal episode and the consecutive sentences are not illegal. See State v. Hill, 660 So.2d 1384, 1386 (Fla.1995). The circuit court’s order is affirmed.

Affirmed.

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


text:
    Patrick WACTOR, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2412.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Patrick Wactor, Daytona Beach, pro se.
    No appearance for appellee.
   PER CURIAM.

Affirmed. The trial court correctly denied appellant’s petition for writ of habeas corpus, as it was in actuality an untimely motion for postconviction relief from his conviction and sentence, which were final in 1996. It is also without merit. See Howell v. State, 45 So.3d 527 (Fla. 1st DCA 2010); Early v. State, 678 So.2d 901 (Fla. 5th DCA 1996).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Eric BEATTIE, Appellant, v. Elizabeth BEATTIE, Appellee.
    No. 3D10-2198.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.

      Jack Bridges, Tavernier, for appellant.
    Eugene G. Kyle, Marathon, for appellee.
    Before RAMIREZ, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed. See Sell v. Sell, 949 So.2d 1108 (Fla. 3d DCA2007).


author: GERBER, J.

text:
    Kerline FERERE, Appellant, v. William SHURE, M.D., Craig A. Silver, D.O., and John A. Agostinelli, M.D., P.A. d/b/a Primary Care Physicians of Hollywood, Appellees.
    No. 4D09-2873.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.

      Marvin Kurzban and Jed Kurzban of Kurzban Kurzban Weinger & Tetzeli, P.A., Miami, for appellant.
    Donna Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee William Shure, M.D.
    Roberta G. Mandel of Roberta G. Man-del, P.A., Miami, for appellees Craig A. Silver, D.O. and John A. Agostinelli, M.D., P.A. d/b/a Primary Care Physicians of Hollywood.
   GERBER, J.

The plaintiff appeals from: (1) orders granting the defendants’ motions for attorney’s fees and costs under section 57.105(1), Florida Statutes (2008), following a mistrial; and (2) final judgments for the defendants following a second trial. We reverse the orders granting the defendants’ motions for attorney’s fees and costs, but affirm the final judgments.

The plaintiff sued her gynecologist and her primary care physicians for negligence. She alleged that in October, 2000, her gynecologist noted a mass on her right breast and sent her for a mammogram, but over the next eighteen months, he failed to evaluate the possibility of breast cancer. She further alleged that in October, 2001, her primary care physicians saw her due to discomfort in her right breast, but they failed to evaluate the possibility of breast cancer. She further alleged that her gynecologist’s and her primary care physicians’ failure to treat her breast cancer in a timely manner breached their duty of care and caused her to have a radical mastectomy in June, 2002.

In response, the gynecologist alleged that he advised the plaintiff to see a surgeon after the October, 2000 visit, but she did not do so. The primary care physicians alleged that they ordered an ultrasound for the plaintiff after the October, 2001 visit, but it showed no evidence of cancer. Further, both the gynecologist and the primary care physicians alleged that, due to the nature of the plaintiffs breast cancer, she would have required a radical mastectomy under any circumstances.

The Mistrial and the Defendants’ Motions for Attorney’s Fees and Costs

During jury selection of the first trial, the following exchange occurred between the plaintiffs counsel and a potential juror:

PLAINTIFF’S COUNSEL: Have you ever heard of the term “doctoring of records?” Do you know what that means ... ?
JUROR: Yes, I know what that means.
PLAINTIFF’S COUNSEL: What does that mean?
JUROR: It means falsifying.
PLAINTIFF’S COUNSEL: Did everyone hear [him]? Would you say it out loud, please?
JUROR: Doctoring of records.
PLAINTIFF’S COUNSEL: Means what?
JUROR: Falsifying records.
PLAINTIFF’S COUNSEL: Do you all realize that both sides will present expert testimony supporting their position and it will be up to you to listen to the reasoning of—
GYNECOLOGIST’S COUNSEL: ... Your Honor, I have a motion I’d like to make.

The gynecologist’s counsel moved for a mistrial, arguing “there is no issue in this case of changed or falsified records.... It’s not been pled, it’s not been the subject of expert testimony.” The trial court asked the plaintiffs counsel whether the plaintiff had pled fraud or spoliation in the complaint. The plaintiffs counsel responded that the question of doctoring records was an evidentiary issue and that the plaintiff did not have to plead fraud or spoliation in the complaint. The court granted the motion for mistrial. The court reasoned: “The impression that’s now been left with the jury is improper. It’s not something that’s pled; it’s not something that was before the jury.”

The gynecologist later filed a motion alleging that he was entitled to recover his attorney’s fees and costs from the plaintiffs counsel on two grounds. First, the gynecologist argued that, pursuant to section 57.105(1), Florida Statutes (2008), the plaintiffs counsel “presented the novel idea of fraudulent and/or altered records, [and] there were no material facts to establish such a claim.” Second, the gynecologist argued that, pursuant to Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), the plaintiffs counsel’s tainting of the entire jury panel when there was no evidence of fraud “can only be viewed as egregious conduct.”

The plaintiffs counsel responded that he had a good faith basis to claim the “doctoring of records” based on four documents obtained during discovery:

1) The gynecologist’s October 10, 2000 progress note which contained a separate handwritten notation: “[R]etum to office in six weeks, recheck breast ... explained extensively.” The gynecologist testified at his deposition that this notation meant he told the plaintiff to have a surgeon evaluate her, but she did not want to go. According to the plaintiff, however, the gynecologist only told her to get a mammogram. Thus, the plaintiff argued that the gynecologist must have added the notation to the progress note after litigation commenced.
2) An October 17, 2000 mammogram report from a diagnostic center to the gynecologist containing a handwritten notation by the gynecologist’s assistant stating: “Patient to return for recheck and above or surgical evaluation. ” According to the plaintiff, the gynecologist never referred her for a surgical evaluation. Thus, the plaintiff argued that the gynecologist must have had his assistant add the notation to the report after litigation commenced.
3) An April 11, 2001 mammogram report from the diagnostic center to the gynecologist indicating that additional testing was necessary. The report was in the diagnostic center’s records but was not in the gynecologist’s records. The gynecologist, at his deposition, attempted to explain this discrepancy by testifying that he never received the report. The diagnostic center’s records custodian, however, testified that the center automatically faxed reports like this one to the physician who requested the report, and she knew of no instance in which a requesting physician did not receive the report. Thus, the plaintiff argued that the gynecologist must have removed this report from his records after litigation commenced.
4) A January 21, 2002 referral from the gynecologist to the primary care physicians containing a handwritten notation of “surgical eval.” The primary care physician who examined the plaintiff two months after the referral testified that he had never seen the referral before. Thus, the plaintiff argued that the gynecologist must have added the notation to the referral after litigation commenced.

Despite the plaintiffs arguments, the trial court entered an order granting the gynecologist’s motion for attorney’s fees and costs pursuant to section 57.105(1). The court stated it found no allegations of “falsification of records” or “removal of records” in the complaint or the pre-trial stipulation; the only issue which the plaintiff brought out in discovery was what the court characterized as a “he said/she said” factual dispute, not the “doctoring of records”; and with regards to the “removal of records,” the only evidence was that the diagnostic center “says [it] sent the record but has no confirmation and the [gynecologist] says he did not receive the report.” The court found that “raising such detrimental claims for the first time in voir dire with no proof, no handwriting expert, nothing more than ‘he said/she said’ testimony after the [p]arties had litigated the [c]ase for four years is improper and falls within this court[’]s authority under Florida Statute 57.105 to award attorney’s fees.” The court did not address the gynecologist’s alternative argument that it should impose attorney’s fees against the plaintiffs counsel for bad faith conduct pursuant to Moakley.

After the trial court granted the gynecologist’s motion for attorney’s fees and costs, the primary care physicians filed a similar motion to recover their attorney’s fees and costs pursuant to section 57.105(1). The trial court entered an order granting that motion as well.

The plaintiff now appeals from the trial court’s orders. Normally, we review a trial court’s order awarding section 57.105(1) attorney’s fees for an abuse of discretion. Asinmaz v. Semrau, 42 So.3d 955, 957 (Fla. 4th DCA 2010) (citation omitted). However, to the extent a trial court’s order on attorney’s fees is based on its interpretation of the law, we have de novo review. Robin Roshkind, P.A. v. Machiela, 45 So.3d 480, 481 (Fla. 4th DCA 2010) (citation omitted).

Applying de novo review to the trial court’s interpretation of the law here, we conclude that the trial court, in granting the defendants’ motions for attorney’s fees and costs, misinterpreted the law in three respects: (1) section 57.105(1) did not apply to this situation; (2) even if section >57.105(1) applied, it was impossible for the plaintiff to allege fraud or spoliation in the complaint; and (3) an award of costs is not allowed under section 57.105(1). We address each ground in turn.

First, section 57.105(1) did not apply to this situation. Section 57.105(1) provides, in pertinent part:

Upon ... motion of any party, the court shall award a reasonable attorney’s fee ... to be paid to the prevailing party ... at any time ... in which the court finds that the losing party or the losing party’s attorney knew or should have known that a claim or defense when initially presented to the court or at any time before trial:
(a) Was not supported by the material facts necessary to establish the claim or defense; or
(b) Would not be supported by the application of then-existing law to those material facts.

However, section 57.105(1) is conditioned by section 57.105(4), Florida Statutes (2008), which provides:

A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.

Here, given that the plaintiffs counsel alleged the “doctoring of records” during jury selection, there was no way for the plaintiffs counsel to “withdraw or appropriately correct” that allegation within 21 days after service of the defendants’ post-mistrial motion. Thus, section 57.105(1), as conditioned by section 57.105(4), was not applicable to this situation. We cannot rewrite the statute to fit this situation.

Second, even if section 57.105(1) applied, it was impossible for the plaintiff to allege fraud or spoliation in the complaint. The fraud which the plaintiffs counsel was alleging was not a fraud on the plaintiff, but a fraud on the court. Compare Butler v. Yusem, 44 So.3d 102, 105 (Fla.2010) (third and fourth elements of an action for fraudulent misrepresentation are “an intention that the representation induce another to act on it” and “consequent injury by the party acting in reliance on the representation.”) (emphasis added in part) with Pino v. Bank of N.Y. Mellon, 57 So.3d 950, 954 (Fla. 4th DCA 2011) (“A ‘fraud on the court’ occurs where it can be demonstrated, clearly and convincingly, that a party has sentiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier [of fact] or unfairly hampering the presentation of the opposing party’s claim or defense.”) (citation omitted). Moreover, an independent cause of action does not exist for first-party spoliation of evidence. Martino v. Wal-Mart Stores, Inc., 908 So.2d 342, 347 (Fla.2005).

Third, an award of costs is not allowed under section 57.105. See Ferdie v. Isaacson, 8 So.3d 1246, 1251 (Fla. 4th DCA 2009) (section 57.105 provides that “the court shall award a reasonable attorney’s fee to be paid to the prevailing party,” but makes no mention of costs) (citation omitted).

At oral argument, the defendants contended that even if the trial court was wrong to award attorney’s fees pursuant to section 57.105(1), then the court still was right to award attorney’s fees pursuant to the court’s “inherent authority to impose attorneys’ fees against an attorney for bad faith conduct.” Moakley, 826 So.2d at 226; see also Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla. 1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”).

We disagree. We see nothing in the record suggesting that the plaintiffs counsel acted in bad faith. Rather, it appears that the plaintiffs counsel believed— based on the discrepancies in testimony between the gynecologist and the plaintiff, the primary care physician, and the diagnostic center’s records custodian — that there was a sufficient basis to attack the gynecologist’s credibility. See § 90.608(5), Fla. Stat. (2008) (“Any party ... may attack the credibility of a witness by ... [pjroof by other witnesses that material facts are not as testified to by the witness being impeached.”). The fact that the trial court rejected the plaintiffs attempt to employ this line of attack does not mean that the plaintiffs counsel acted in bad faith. Thus, the trial court erred by entering the orders granting the defendants’ motions for attorney’s fees and costs to the extent such motions were brought pursuant to section 57.105(1) or Moakley. We reverse those orders.

The Second Trial Resulting in Final Judgments for the Defendants

Before the second trial, the gynecologist filed a motion in limine to preclude the plaintiff from referencing the alleged alteration or concealment of records. The gynecologist argued that there was no evidence to support such a theory. The plaintiff opposed the motion based on arguments similar to those which her counsel raised in response to the gynecologist’s motion for attorney’s fees and costs.

The trial court granted the motion in limine. However, during closing argument, the plaintiffs counsel used the fact that the gynecologist did not have the April 11, 2001 mammogram report in his records to argue that the gynecologist altered the other records:

[WJhen we go through the individual? charts, we’ll show you what we believe was added after the date to protect [the gynecologist]. But here is [the April 11, 2001 mammogram report].... You can’t fool with a hospital record. It has the dictated date and transcription date. The hospital won’t allow you to put in something different than what is on the transcription date. If you’re going to amend it, they require you to have an amended report.
The only record that [the gynecologist] couldn’t change is [the April 11, 2001 mammogram report]. It’s the only one. Everything else he could change and he did. Subtly, but he did. This is the only record that couldn’t be changed,

(emphasis added).

The gynecologist objected and moved for a mistrial. The trial court sustained the objection, reserved ruling on the motion for mistrial, and gave the following curative instruction over the plaintiffs objection:

There has been no evidence adduced at this trial that the records were added to and that shall be stricken and you should rely, again, on your own memory of the testimony and evidence received in this case.

The jury rendered a verdict for the defendants, rendering moot the gynecologist’s motion for mistrial.

The plaintiff argues that the trial court erred by granting the motion in limine and by instructing the jury that there was no evidence that the records were altered. According to the plaintiff, such an instruction “invaded the province of the jury ... [and] essentially told the jury that [the gynecologist’s] account of events was the true one.” We review these arguments for an abuse of discretion. See Golden Yachts, Inc. v. Hall, 920 So.2d 777, 780 (Fla. 4th DCA 2006) (a trial judge’s ruling on a motion in limine will not be disturbed absent an abuse of discretion) (citation omitted); Frazier v. State, 970 So.2d 929, 930 (Fla. 4th DCA 2008) (“The control of comments during closing argument is within the trial court’s discretion and an appellate court will not interfere unless an abuse of discretion is shown.”) (citation omitted); Perez v. State, 856 So.2d 1074, 1078 (Fla. 5th DCA 2003) (“A trial court’s decision whether to give a curative instruction or grant a mistrial is subject to an abuse of discretion standard.”) (citation omitted).

We reject the plaintiffs arguments. Reasonable persons could differ as to whether the plaintiff possessed sufficient proof to attack the gynecologist’s credibility based on the discrepancies in testimony between the gynecologist and the other witnesses. Thus, the trial court did not abuse its discretion in granting the motion in limine. See Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (“If reasonable [persons] could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.”). Further, the trial court’s curative instruction was an appropriate response to the plaintiffs violation of the court’s order granting the gynecologist’s motion in limine.

We have considered the other arguments which the plaintiff raises on appeal from the final judgments. We conclude, without further comment, that those arguments lack merit.

Affirmed in part and reversed in part.

STEVENSON and GROSS, JJ., concur.

      . Normally we would not have accepted the plaintiffs appeal from the order granting the defendants' motions for attorney’s fees and costs because the trial court has not ruled upon the recoverable amount of attorney’s fees and costs. See Winkelman v. Toll, 632 So.2d 130, 131 (Fla. 4th DCA 1994) (”[0]r-ders granting attorney's fees without determining amount are not ripe for appellate review.”). However, we accepted the plaintiff’s appeal from the attorney's fees and costs order because it was intertwined with the arguments which the plaintiff raised in her appeal from the final judgments. Thus, contrary to the normal situation, separating this case into piecemeal appeals would have ”serve[d] to waste court resources and needlessly delay[ed] final judgment.” Id.


author: CORTIÑAS, J.

text:
    Eric JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-650.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Rehearing Denied Aug. 16, 2011.

      Carlos J. Martinez, Public Defender, and Amy Weber, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before WELLS, C.J., and CORTIÑAS and SALTER, JJ.
   CORTIÑAS, J.

Eric Johnson (“Johnson”) appeals his conviction for attempted second-degree murder with a firearm. Johnson contends that the trial court committed fundamental error in giving an improper jury instruction. We disagree.

Johnson was charged by the State of Florida (the “State”) with two counts: (1) aggravated assault and (2) attempted second-degree murder with a firearm. The charges arose from two separate and independent incidents involving Johnson and Mr. Quinten Spivey (“Spivey”), the boyfriend of Johnson’s wife, Natalia Johnson (“Wife”). At trial, there was substantial dispute in the testimony. Johnson denied all involvement in the alleged aggravated assault. Spivey testified that Johnson followed him while on his motorcycle and accelerated in an attempt to run Spivey over.

Two or three hours after Spivey’s initial encounter with Johnson, Spivey and Wife decided to go to the store to purchase a soda. When Spivey and Wife arrived, Johnson was there. Again, the jury was presented with varying accounts of the events that transpired.

Wife testified that she told Spivey to ignore Johnson and suggested they go to a different store. Spivey refused and parked the car within two or three parking spaces of Johnson’s vehicle. Wife turned her attention to her two sons, who were in the back seat of the vehicle, and did not turn around until she heard gunshots. When she turned back, she saw Spivey on the ground and Johnson sitting by a gas pump.

Spivey denied seeing Johnson’s truck, having a conversation about leaving the gas station, or arguing with Johnson when he got out of the car. Rather, Spivey said that, as he attempted to get out of Wife’s car, Johnson began to ban on the back window. Spivey testified that he then got out of the car in order to call 911. When he got out of the car, he and Johnson were not close to each other, but Johnson approached him, and the two “got locked up” and “tussled a bit.” As the two struggled, Johnson moved towards the front of the car and got into the driver’s seat. At some point during their struggle, Spivey was shot. Spivey testified that afterwards, Johnson walked over, put the gun to his head, and said he was going to kill him.

Johnson’s testimony was decidedly different. Johnson testified that, while on the phone with a friend, he saw Wife’s car pull into the gas station. Spivey got out of the driver’s side and began yelling and threatening Johnson. Then, Spivey got back into the car, started driving away, but stopped, exiting the car, rushing towards Johnson, and attacking him. Johnson stated that Spivey repeatedly punched and kicked him and he was pinned at the Wife’s driver’s side door. Johnson, who suffers from asthma, stated that he began to loose consciousness. Because he was unable to escape from Spivey’s attack and was afraid that Spivey would kill him, Johnson reached for the gun. Spivey was on top of him and had his arms pinned down, when Johnson reached up and shot the gun three times. Johnson testified that after Spivey fell over, he sat down to catch his breath, called 911, and waited for the police.

In charging the jury on the Justifiable Use of Force, the trial court instructed the jury as follows:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which [JOHNSON] is charged if the injury to [SPIVEY] resulted from the justifiable use of deadly force.
“Deadly force” means force likely to cause death or great bodily harm. However, the use of deadly force is not justifiable if you find:
1. [JOHNSON] initially provoked the use of force against himself, unless:
a. The force asserted toward the defendant was so great that he reasonably believed that he was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force on [SPIVEY].

Johnson argues that the giving of the aggressor instruction constituted fundamental error.

The Florida Supreme Court amended Florida Standard Criminal Jury Instruction 3.6(f) to clarify that the trial court should only include the aggressor instruction when the defendant has been charged with a contemporaneous independent forcible felony other than the one for which the defendant claims self-defense pursuant to Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). In re Standard Jury Instructions in Criminal Cases (2007-3), 976 So.2d 1081 (Fla.2008).

In Giles, 831 So.2d 1263, the Fourth District held that it was fundamental error for a trial court to issue an erroneous jury instruction incorporating section 776.041(1) of the aggressor instruction where the defendant was not charged with a contemporaneous independent forcible felony. The Fourth District reasoned that the giving of the instruction was fundamental error because the defendant was not engaged in an independent forcible felony at the time of the alleged crime, and the charge “was not one where the alleged [forcible felony] occurred while [the defendant] was attempting to commit, committing, or escaping after the commission of some other independent forcible felony.” Id. at 1265.

However, the applicability of section 776.041(2) does not follow the same condition as section 776.041(1) insofar as there is no requirement for a contemporaneous independent forcible felony in the giving of the section 776.041(2) instruction. See Martinez v. State, 981 So.2d 449, 452 (Fla.2008). Specifically, section 776.041 “[s]ubsection (2) precludes the initial aggressor from asserting self-defense where he or she is the individual who provoked the use of force” contemporaneously to the actions of the victim to which the defendant claims self-defense. Id.

Here, the trial court properly instructed the jury as to the aggressor instruction of the Justifiable Use of Force because there was evidence in the record that Johnson may have initially provoked the use of force against himself. See § 776.041(2), Fla. Stat. (2010); see also Martinez, 981 So.2d at 452. Accordingly, there being evidence in the record to support the giving of the instruction, we find no error. We affirm on all other issues on appeal.

Affirmed.

      . As in this case, we note that the initial provocation would necessarily had to have been contemporaneous to the actions of the victim, as described in subsection 2(a), which the defendant claims self-defense.


text:
    Ashton J. FINCH, Appellant, v. DEPARTMENT OF REVENUE, o/b/o Sabrina JOHN-JULES, Appellee.
    No. 3D11-343.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Ashton J. Finch, in proper person.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Child Support Enforcement, Tallahassee, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Ashton Finch appeals a final administrative paternity and support order. We reverse the order to the extent that it determines Finch’s child support obligations.

The Department of Revenue, Child Support Enforcement Program, (“Department”) instituted a proceeding, on behalf of Sabrina John-Jules, to establish the paternity of John-Jules’ child and to establish the biological father’s current and retroactive child support obligations. See §§ 409.256, 409.2563, Fla. Stat. (2010). Following a hearing, the Administrative Law Judge (“ALJ”) issued a paternity and support order, finding that Ashton Finch is the legal and biological father of the child and requiring him to pay current and retroactive child support. The ALJ admitted the Department’s exhibits of Finch’s financial affidavit and a SUNTAX printout of his earnings, and expressly incorporated this evidence as additional findings of fact and conclusions of law. The order also incorporates a child support guidelines worksheet, stating that Finch’s gross monthly income for the 2011 tax year is $1731 and that his net monthly income is $1481.45. Based on the determination of the parents’ net income, the ALJ found that Finch’s current monthly child support obligation is $444 a month according to the child support guidelines schedule. This income determination and resulting child support obligation was also used to compute the amount of retroactive support that Finch must pay.

On appeal, we agree with Finch’s contentions that the order must be reversed because the order shows that the ALJ erred in computing Finch’s child support obligations. First, the SUNTAX printout and Finch’s financial affidavit relied on by the ALJ do not support a determination that Finch’s current gross monthly income is $1731($20,772 for the 2011 tax year) as stated in the guidelines worksheet. The affidavit provides that Finch’s current gross monthly income is approximately $600 less than the worksheet amount. The SUNTAX printout indicates that Finch’s gross income for the first three quarters of the 2011 tax year is $13,896.76 or $1544.08 a month. Therefore, the ALJ must have found that Finch’s income for the 4th quarter of 2010 was $6875.24 ($20,772-$13,896.76). However, the order does not explain this finding, and it is not otherwise substantiated by the record. Accordingly, the support order cannot stand based on this inaccurate determination as to Finch’s current income. See Cervoni v. Cervoni, 715 So.2d 282, 283 (Fla. 3d DCA 1998); Calero v. Calero, 996 So.2d 244, 245-46 (Fla. 4th DCA 2008); Soto v. Soto, 974 So.2d 403, 403-05 (Fla. 2d DCA 2007); Dep’t of Revenue ex rel. Moneyham v. Moneyham, 931 So.2d 1048, 1048-49 (Fla. 1st DCA 2006); see also § 120.68(10), Fla. Stat. (2010).

In addition, the ALJ erred in using Finch’s current monthly income to compute the retroactive support obligation. The use of current income is permissible when the obligor fails to demonstrate his or her actual income during the retroactive period. See § 61.30(17)(a), Fla. Stat. (2011) (providing that the “[f]ailure of the obligor to ... demonstrate [his or her actual income] shall result in the court using the obligor’s income at the time of the hearing in computing child support for the retroactive period”). Here, however, the SUNTAX printout provides Finch’s earnings for the retroactive period before service of the notice of proceeding, as well as for several months after service. The SUNTAX printout shows that his monthly gross earnings for this period are less than the current income amount stated on the worksheet, which was used to compute his retroactive support obligation. Without explanation, the ALJ disregarded this information and improperly failed to use Finch’s actual income in computing his retroactive child support obligation. See § 61.80(17)(a) (providing that the court shall consider “the obligor’s demonstration of his or her actual income ... during the retroactive period” when determining the amount of a retroactive child support award); Swor v. Swor, 56 So.3d 825, 826 (Fla. 2d DCA 2011); Cameron v. Dickey, 871 So.2d 1022, 1028 (Fla. 5th DCA 2004); see also Salters v. Dep’t of Revenue ex rel. Mobley, 32 So.3d 777, 778 (Fla. 2d DCA 2010). Therefore, the ALJ’s determination of the retroactive support obligation does not comply with section 61.30(17)(a) and it must be recalculated.

Accordingly, we affirm the paternity determination but reverse the order with respect to the child support obligations. Based on this reversal, we also reverse the income deduction order entered pursuant to the support order. The cause is remanded for further proceedings.

Affirmed in part and reversed in part.

      . Finch does not contest the paternity determination and we affirm the order as to that ruling.

      . The order does not indicate that the ALJ imputed any income to Finch, see § 409.2563(5)(a), Fla. Stat. (2010), § 61.30(2)(b), Fla. Stat. (2011), or found that Finch has income from sources other than his earnings. See § 61.30(2)(a), Fla. Stat. (2011).

      . Finch’s financial affidavit does not state his income for the retroactive period.


author: ROTHENBERG, J.

text:
    Anthony J. GANTT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2209.
    District Court of Appeal of Florida, Third District.
    July 20, 2011.
    Anthony J. Gantt, in proper person.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   ROTHENBERG, J.

The defendant, Anthony J. Gantt, appeals the trial court’s order denying him relief under rule 8.800(a), Florida Rules of Criminal Procedure. We affirm, without prejudice, to allow the defendant to seek relief pursuant to rule 3.850.

The defendant alleges that he is entitled to receive, and has not received, credit for the time he served in custody from January 18, 2007, until February 8, 2008. Although rule 3.800(a) would normally be the appropriate avenue to determine if the defendant is entitled to additional credit for time served, we conclude it is not in this case.

The defendant claims he was incarcerated in the Dade County Jail from January 18, 2007, until February 8, 2008, and then released on house arrest pending resolution of his two felony cases. On October 6, 2008, he entered into a negotiated plea, in which he pled guilty to the charges and was sentenced to two years of community control followed by three years of probation. On September 12, 2009, the defendant was arrested on a community control violation and remained in custody until September 24, 2009, upon which he entered into a negotiated plea of three years in state prison with credit for the twelve days he served in the county jail from September 12 to September 24, 2009. He claims he should have also received credit for the time he served from January 18, 2007, through February 8, 2008, which he computes as 386 days.

Rule 3.800(a) contemplates that the relief sought can be demonstrated on the face of the record without the necessity of an evidentiary hearing. See Renaud v. State, 926 So.2d 1241 (Fla.2006). In this case, although the record may demonstrate that the defendant was in fact incarcerated during the dates alleged, the record, by way of the clerk’s minutes, reflects that the trial court ordered that the defendant receive credit only from September 12, 2009, to September 24, 2009, which suggests that pursuant to the negotiated plea, the defendant agreed to receive only twelve days credit for time served and he waived the remainder. Because the court reporter is unable to provide a transcript of the proceedings, both the trial court and this Court are unable to determine from the face of the record whether the defendant is entitled to relief.

Because an evidentiary hearing, as well as a reconstruction of the record, is permitted under rule 3.850, and when the defendant filed his rule 3.800(a) motion a rule 3.850 motion would have been timely filed, we affirm the order denying relief pursuant to rule 3.800(a) without prejudice for the defendant to file a timely rule 3.850 motion. We caution the defendant that he has only two years from the date of his plea, September 27, 2009, to file a timely rule 3.850 motion for postconviction relief.

Based on the difficulty of an incarcerated defendant to take the necessary steps to submit a viable rule 3.850 motion under the circumstances in this case; the possibility that an evidentiary hearing will be necessary; the shortness of the time remaining; and the possibility that the defendant may be entitled to release, we instruct the trial court to appoint conflict-free counsel to represent the defendant and order that upon the filing of a rule 3.850 motion, the trial court expedite resolution of the motion.

Affirmed without prejudice, with instruction to appoint conflict-free counsel and to expedite proceedings.


author: WARNER, J. DAMOORGIAN, J.,

text:
    Mark L. KUEBLER, Appellant, v. Sharon Finn FERRIS, Appellee.
    No. 4D09-5181.
    District Court of Appeal of Florida, Fourth District.
    July 20, 2011.
    Sharon C. Degnan of Kubicki Draper, Fort Lauderdale, for appellant.
    William H. Pruitt of Pruitt & Pruitt, P.A., West Palm Beach, for appellee.
   WARNER, J.

After a jury determined that the automobile accident was not a legal cause of injury to the plaintiff, the trial court granted a motion for new trial. The court concluded that while evidence of permanency of the plaintiffs injury was hotly contested, all the evidence showed at least some injury. The defendant appeals, claiming that the trial court abused its discretion in granting the motion, because there was some evidence that the plaintiff suffered no injury at all. We cannot conclude that the trial court abused its discretion. Thus, we affirm.

This case arises out of a “fender-bender” automobile accident in 2002. The plaintiff, Sharon Ferris, was rear-ended by the defendant at a stoplight. Ferris described a “hard” hit causing her neck to hit the headrest. The defendant called it more of a tap. The only damage to Ferris’ vehicle were two small holes in her bumper caused by the screws on the defendant’s front license plate. Both drivers pulled to the side, exchanged information, and went on their way. When the defendant asked if Ferris were injured, she told him she was “fine.” Ferris, however, testified that she developed stiffness and soreness in her neck during the day. The defendant called the next day to see how she was, and she told him she “seemed okay.” She did not miss any work as a result of the accident.

Ferris did not seek medical treatment right away. As her neck continued to feel stiff and sore, with pain going down her arms, she eventually went to her primary physician about thirty days after the accident. Her physician referred her to an orthopedic physician, who in turn referred her to a pain specialist. She was prescribed anti-inflammatory drugs and muscle relaxants, but she discontinued treatment with them because she “just wasn’t that into taking the drugs.” She also saw a chiropractor for approximately two-and-a-half years after the accident for palliative care. She filed suit for damages in 2006. She saw the chiropractor again in 2008. At trial, she claimed that she had discontinued seeing the chiropractor in 2005 for financial reasons. Yet she testified at trial that during 2006 to 2008 she charged $2,000 to her credit cards for dental treatment.

In her testimony at trial, Ferris admitted that prior to the accident she suffered from psoriatic arthritis, for which she would occasionally need a cortisone shot to be able to lift her shoulder. She also admitted having prior neck problems which required visits to the doctor. In addition, the week before the accident she experienced pain in her mid back region, causing her to visit her physician. At that time she was taking a prescription dose of Ibuprofen of 800 milligrams, and she also had a prescription for hydrocodone, a narcotic. She admitted that she had frequently received Ibuprofen prescriptions for other conditions dating back to 1997. However, she maintained that none of these conditions caused any restriction in her activities, as did her condition after the accident. Ferris’ daughter also testified at trial that her mother began having headaches and soreness after the accident which limited her activities.

Ferris testified that her activities were limited, including speed walking, which she enjoyed prior to the accident. She explained speed walking to the jury. However, on cross-examination, counsel brought out that in her answers to interrogatories she had not listed that as an activity that she had engaged in prior to the accident that she was unable to perform now.

Her medical records and prescription records were admitted into evidence. Her physician’s notes from the visit the week prior to the accident show that she complained of sharp pains in the mid back. The prescription drug records showed a lengthy history of medications of all types, including the prescription strength Ibuprofen and hydrocodone. Also admitted into evidence was a record of a 2006 visit to an orthopedist as a result of bilateral knee pain. In that record, she denied any prior history of knee pain. Yet in the records of her primary care physician is a record of a visit due to knee pain in 2002. On a second visit she complained of injuring her shoulder in a fall. However, in none of those records is any complaint made of neck pain.

Her main treating chiropractor testified at trial that Ferris had suffered a permanent impairment to her neck as a result of the accident. MRI films of Ferris’ neck showed a bulging disc at one level and a herniated disc at another, although the chiropractor did not review the films herself. In contrast to her chiropractor, the orthopedic physician Ferris was referred to by her primary physician looked at the MRI films and did not see any herniation, although he did observe a bulging disc. The chiropractor revealed that Ferris had not told her about the sharp pain she felt in her back the week prior to the accident, nor did she tell her about her prescription medications. This history may have made a difference in the chiropractor’s opinion, depending upon the part of the body involved.

The defense sought an examination by another orthopedic surgeon. That doctor testified that he found no permanent injury. He reviewed the medical films and found no herniated discs. The disc bulging was consistent with normal wear and tear associated with Ferris’ age and not an injury. He did conclude, however, that she had suffered a neck strain in the accident. Typically such injuries would be treated with anti-inflammatories and four to six weeks of physical therapy.

Prior to trial, the defendant had admitted liability for causing the accident. Therefore, the entire trial focused on the permanency of Ferris’ injuries. Because she did not present any evidence of any future medical expenses, the court directed a verdict as to future expenses. Ferris was allowed to argue that she should be entitled to future pain and suffering damages. In closing argument, defense counsel admitted that Ferris had suffered the minor neck sprain as testified to by the defense doctor, just not the permanent injury claimed by Ferris.

The jury returned a verdict finding that the accident was not a legal cause of injury to Ferris. Plaintiff moved for a new trial, and the court granted the motion. In its order the court stated:

Plaintiff seeks a new trial asserting that the verdict is against the manifest weight of the evidence. In support of this assertion, Plaintiff notes that the undisputed testimony of the witnesses, expert and lay, established that the Plaintiff had suffered some injury. The Court agrees.
While permanency of any injury was very much a disputed fact, the evidence at trial established at the very least that the Plaintiff suffered a neck sprain as a result of the accident. Under such circumstances, the failure to find any loss or damage as a result of the Defendant’s negligence is against the manifest weight of the evidence. See, e.g., The Hertz Corporation v. Gleason, 874 So.2d 1217 (Fla. 4th DCA 2004).

The defendant appeals the order granting a new trial.

A trial judge has broad discretion in ruling on a motion for a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence. Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla. 1999). When so ruling, the trial court must consider all of the evidence and weigh the credibility of the witnesses. The supreme court described the duty of the trial court:

A trial judge has the responsibility to draw “on his [or her] talents, his [or her] knowledge, and his [or her] experience to keep the search for the truth in a proper channel,” and the trial judge should always grant a motion for a new trial when “the jury has been deceived as to the force and credibility of the evidence or has been influenced by considerations outside the record.” Cloud, 110 So.2d at 673. The trial judge’s discretion permits the grant of a new trial although it is not “clear, obvious, and indisputable that the jury was wrong.” When a trial judge grants the motion for a new trial, he or she must articulate the reasons for the new trial in the order.

749 So.2d at 497 (emphasis supplied).

On appeal the trial court is afforded a deferential standard of review. Brown explains:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

749 So.2d at 497-98 (emphasis supplied). The trial judge’s discretion permits the grant of a new trial even if it is not clear, obvious and indisputable that the jury was wrong. Id. at 497.

Despite this deferential standard, some courts have held that a trial court may abuse its discretion by granting a new trial where the articulated reasons set forth in the order have no basis in the record or are based on incorrect conclusions of law. See Schmidt v. Van, 65 So.3d 1105 (Fla. 1st DCA 2011). For instance, in Jordan v. Brown, 855 So.2d 231 (Fla. 1st DCA 2003), the trial court granted a new trial where the jury found that the admitted accident was not a legal cause of injury to the plaintiff, and the court reasoned that the evidence was “undisputed” that the plaintiff suffered an injury which was permanent in nature. Explaining that the entire case “rose and fell” on the plaintiffs testimony, and her testimony was substantially impeached, the appellate court concluded that the trial court’s reasons for granting a new trial were clearly erroneous, because the evidence was not “undisputed.”

In Schmidt, the trial court granted a new trial on the basis that the verdict finding the accident in question did not cause the plaintiffs injuries was contrary to the manifest weight of the evidence, because the all three medical expert witnesses testified that it did, including a defense witness. The trial court dismissed the plaintiffs credibility issues, because “no reasonable juror would conclude ‘no causation’ ... in light of the opinions of the three doctors.” The appellate court reversed, finding that conclusion clearly erroneous, because the jury could reject any testimony, including that of experts. The trial judge erred in failing to defer to the jury where the jury could have come to its verdict based upon the lay testimony. “By failing to recognize the jury’s prerogative to reject the expert testimony on causation, particularly in light of the lay testimony which conflicted with the expert testimony, the trial court erred in concluding that the manifest weight of the evidence was contrary to the jury verdict.” Id. at 1110.

Some of the language in these cases seems to contradict the- holding of Broum that the appellate court should defer to the discretion of the trial court in granting a new trial, even where there is competent substantial evidence to support the jury verdict. In both Jordan and Schmidt the court seems to have concluded that because competent substantial evidence supported the jury’s verdict, which the trial court disregarded, the trial court abused its discretion. We think this runs afoul of the admonition in Brown v. Estate of Stuckey that “[t]he fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.” Id. at 498.

If we apply the same rationale as was used in Jordan and Schmidt, we would have to find that the trial court abused its discretion. In this case, the trial court granted a new trial on the ground that it was “undisputed” that all of the expert and lay testimony showed Ferris suffered at least a neck strain as a result of the accident. However, the evidence was not “undisputed,” taking into account the lay testimony and the inferences that could be drawn from the evidence. Even though the doctors, including the defense doctor, all testified to a neck injury from the accident, all of their opinions rested on the credibility of Ferris’ reporting of both her symptoms as well as her prior history, similar to Jordan. Her chiropractor testified that she received a permanent injury but was not told about her back pain the week prior to the accident.

In several aspects, the defense was able to impeach Ferris. She told the jury that she didn’t like taking drugs, yet her extensive prescription history belied that claim. In particular, and relevant to her claim that she was symptomless prior to the accident, she had recent prescriptions for both Ibuprofen and hydrocodone just a week prior to the accident. She claimed that her activities were limited, particularly speed walking, but in her answers to interrogatories she failed to list that activity as one she could no longer tolerate. She claimed that she discontinued chiropractic care because of financial reasons, yet she spent thousands of dollars on dental treatments.

Circumstantial evidence in this case also permits an inference that the plaintiff suffered no injury. The week prior to the accident she had back pain severe enough that she saw her physician immediately. Not only would that suggest a prior cause for her continuing issues, it also suggests that when Ferris was in pain, she sought medical treatment. That Ferris did not seek treatment for a month also would support a finding of no injury from the accident. The limited damage to the plaintiffs car, together with the defendant’s description of the accident as a “tap” was also relevant evidence to the issue of whether the plaintiff was injured.

Because there is no record basis to show that the evidence was “undisputed” that an injury occurred, and the trial court did not consider the credibility of the plaintiff in its assessment, we could find that the trial court abused its discretion, just as the courts did in Schmidt and Jordan. It is most likely the result we would prefer, as the trial court should defer to the jury on issues of the weight to be given to expert testimony. Nevertheless, Brown teaches that the trial judge may grant a new trial although it is not “clear, obvious, and indisputable that the jury was wrong.” Brown further explains the very limited authority of the appellate court in reviewing the broad discretion granted to the trial court, and we think reasonable persons could differ as to the propriety of the action by the trial court, particularly where the defense counsel in closing argument admitted that the accident caused at least some injury. We therefore must affirm the trial court’s order of a new trial.

Alternatively, the appellant requests that we limit any new trial to a trial on non-permanent injuries only, as we did in The Hertz Corp. v. Gleason, 874 So.2d 1217 (Fla. 4th DCA 2004). The plaintiff in Hertz suffered two injuries as a result of the accident. He was immediately diagnosed with a cervical sprain and contusions of the hip and shoulder. Later, he was diagnosed with traumatic brain injury. The jury found no injury legally caused by the accident. The trial court granted a new trial, finding that the verdict was against the manifest weight of the evidence where the evidence that the plaintiff suffered at least some orthopedic injuries was undisputed. Our court affirmed, but we limited the new trial to the undisputed injuries, because the evidence regarding the causation by the accident of the neuro-logic injury was sharply disputed, and that factual determination should have been left to the jury. In this case, the trial court acknowledged that the evidence that the accident caused a permanent injury was likewise sharply disputed. Therefore, consistent with Gleason, we limit the new trial to the claim to non-permanent injuries, as the trial court determined in its motion for new trial that these were the injuries on which the jury’s verdict was contrary to the manifest weight of the evidence.

Affirmed.

TAYLOR, J., concurs.

DAMOORGIAN, J., dissents with opinion.

DAMOORGIAN, J.,

dissenting.

I dissent for the same reason that the majority acknowledges that the “[cjircum-stantial evidence in this case also permits an inference that the plaintiff suffered no injury.” Even if the defense expert testified that the plaintiff may have been in need of some temporary medical treatment after the accident, the jury was presented with other evidence that the accident did not cause the plaintiff any injuries. The majority concedes that were we to apply “the same rationale as was used in Jordan and Schmidt, we would have to find that the trial court abused its discretion.” The rationale is based on a fundamental principle in our civil jury system that the jury is free to accept or reject some, all, or none of the evidence introduced at trial. Schmidt v. Van, 65 So.3d 1105, 1107-08 (Fla. 1st DCA 2011); see also Corbett v. Wilson, 48 So.3d 131, 134 (Fla. 5th DCA 2010) (“The jury is free to weigh the credibility of an expert witness, just as any other witness, and to reject such testimony, even if uncontradicted.”) (citation omitted). Moreover, I do not agree with the majority that reversal in this case would run afoul of the Florida Supreme Court’s opinion in Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999) (“ ‘The trial judge should only intervene when the manifest weight of the evidence dictates such action.’ ”) (emphasis in original). A trial judge’s discretion is not unfettered. Where the trial judge’s premise for granting a new trial was based on an incorrect conclusion of law, or where the evidence in the record does not support the trial court’s determination, there is an abuse of discretion. Schmidt, 65 So.3d at 1107-08.

The majority concedes that there was no record basis to support the trial court’s conclusion that the evidence was ‘undisputed’ that an injury occurred. In fact, there was conflicting evidence on the issue of whether the plaintiff suffered any injury from the accident. “By failing to recognize the jury’s prerogative to reject the expert testimony on causation, particularly in light of the lay testimony which conflicted with the expert testimony, the trial court erred in concluding that the manifest weight of the evidence was contrary to the jury verdict.” Id. at 1110 (citation omitted).

The jury resolved the conflicts in the evidence and I would let the verdict stand.

      . Q. Prior to this crash on October 3, 2002, had you had neck issues that caused you problems and caused you to miss work or go to the doctor or things of that nature?
      A. Yes, sir.

      . Jordan v. Brown, 855 So.2d 231 (Fla. 1st DCA 2003).

      . Schmidt v. Van, 65 So.3d 1105 (Fla. 1st DCA 2011).


text:
    Pacu RIVERA-RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2516.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm without discussion, Pacu Rivera-Rivera’s convictions for robbery with a firearm, false imprisonment with a firearm, aggravated assault with a firearm, attempted robbery, aggravated battery with a firearm, and false imprisonment with a weapon. However, double jeopardy principles preclude Rivera’s separate convictions for battery and simple assault. As to the battery conviction, the State correctly concedes error, as the battery was subsumed by the greater offense of aggravated battery. See Skriver v. State, 861 So.2d 1290 (Fla. 5th DCA 2004). For the reason explained in Latimer v. State, 44 So.3d 1239 (Fla. 5th DCA 2010), we also vacate the simple assault conviction.

Accordingly, we reverse both the battery and assault convictions and remand with instructions to vacate those convictions.

AFFIRMED in part; REVERSED in part; and REMANDED.

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


text:
    STATE of Florida, Petitioner, v. S.A.B., a Child, Respondent. State of Florida, Petitioner, v. J.C.C., a Child, Respondent.
    Nos. 5D10-3777, 5D10-4335.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Petitioner.
    Jeanette Dejuras Bigney of Jeanette Dejuras Bigney, P.A., Orlando, for Respondent S.A.B.
    Tad Á. Yates of the Law Offices of Tad A. Yates, P.A., Orlando, for Respondent J.C.C.
   PER CURIAM.

We consolidate these appeals and affirm. In both cases, the lower courts sealed juvenile court records upon motions filed pursuant to section 943.059, Florida Statutes (2010) and Florida Rule of Criminal Procedure 3.692. The State’s challenge in each case is directed to those portions of the orders that seal juvenile court records. Although statutory authority exists to seal judicial and non-judicial records of a “minor or an adult,” the State contends that, pursuant to Johnson v. State, 336 So.2d 93 (Fla.1976), the control of court records is within the exclusive jurisdiction of the judiciary. Because there is not a juvenile rule of procedure pertaining to the sealing of juvenile court records, the State contends that the lower courts erred in doing so. The State makes no challenge on substantive grounds.

Although the rules of criminal procedure do not generally pertain to juvenile proceedings, rule 3.692 is expressly applicable to “all” petitions to seal or expunge. Even if rule 3.692 is not applicable, the trial court has the authority to utilize this procedure in the absence of a conflicting rule. Fla. R. Jud. Admin. 2.420(c)(9)(A)(vii).

AFFIRMED.

GRIFFIN, SAWAYA and TORPY, JJ., concur.

      . Although we had initially ordered that both appeals proceed as Petitions for Certiorari, we recede from those orders and treat both proceedings as direct appeals.

      . The State only argues that juvenile court records need not be sealed because the proceedings are confidential.


author: MONACO, J.

text:
    STATE of Florida, Appellant, v. M.M., a Child, Appellee.
    No. 5D10-3856.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellee.
   MONACO, J.

The State appeals the trial court’s determination that it did not have jurisdiction to issue a restitution order because more than sixty days had passed from the disposition. The appellee, M.M., properly and admirably concedes error. We reverse.

M.M. was charged by petition for delinquency with one count of burglary of a dwelling and one count of criminal mischief. M.M. entered into a plea agreement with the State in which he agreed to plead no contest to burglary of a dwelling, in return for the State dropping the criminal mischief count. The plea agreement also provided that M.M. was to be ordered to pay restitution and that the amount was to be reserved. At the plea hearing the trial court accepted the plea, and in accordance with the agreement ordered M.M. to pay restitution, reserving for later determination the amount of restitution. After 60 days elapsed the trial court erroneously held that it no longer had jurisdiction to order the restitution amount.

Our supreme court has held that if restitution is ordered within sixty days of sentencing, a determination of the amount to be paid can be made beyond the sixty-day period. See State v. Sanderson, 625 So.2d 471 (Fla.1993); see also L.O. v. State, 718 So.2d 155, 157 (Fla.1998) (reaffirming holding in Sanderson); Ridley v. State, 890 So.2d 1261, 1262 (Fla. 5th DCA 2005) (explaining that if a court orders restitution at sentencing or within sixty days thereafter, the court can reserve jurisdiction to determine the amount of restitution beyond the sixty-day period). These cases require reversal of the trial court’s ruling.

Accordingly, we reverse and remand for imposition of a restitution amount.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.


author: SAWAYA, J.

text:
    STATE of Florida, Appellant, v. Ramon Luis OLIVERAS, Appellee.
    No. 5D09-4197.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellee.
   SAWAYA, J.

The State appeals the order suppressing evidence seized from the home of Ramon Oliveras upon execution of a search warrant. We reverse.

The victim owned two computers, which she brought with her in her luggage on a trip from Houston to Orlando. One of the computers had tracing software from Absolute Software Corporation (Absolute) that allowed Absolute to trace the location of the computer via the internet. The victim discovered that her computers had been stolen from her luggage at some point during their transport from Houston to an Orlando hotel. She notified Absolute of the theft and requested that it provide information to the police regarding the location of the computer and the identifying information of the person using it. Pursuant to that request, Absolute began monitoring the location of the computer and provided information to the police that the computer was being used by Oliveras at a location that was later discovered to be his residence. Once the police received that information, they determined that Oliveras was working for a baggage delivery service at the Orlando airport at the time pertinent to the theft of the victim’s computers. A warrant was obtained and executed, leading to the recovery of the victim’s computers from Oliveras’ residence. Oliveras was arrested and charged with third-degree grand theft.

Oliveras moved to suppress this evidence, arguing that the police had not obtained a court order or subpoena to retrieve information from the computer tracing company, pursuant to the provisions of the Florida Security of Communications Act, chapter 934, Florida Statutes (2009). Specifically, he argued that failure to comply with the requirements of section 934.23, Florida Statutes (2009), rendered the information used in the affidavit “defective” and the evidence seized pursuant to the warrant inadmissible. The trial court suppressed the evidence, but it did so for a different reason. The trial court ruled that probable cause had not been established for issuance of the warrant because the affidavit did not contain sufficient facts to show how the software worked and how Absolute had been able to trace the stolen computers to Oliveras’ home. We will address the trial court’s reasoning and the argument advanced by Oliveras, which is the argument he makes in this appeal.

The basis of the trial court’s ruling is lack of probable cause established by the affidavit. The affidavit recites the pertinent facts:

Victim Billie White stated that on 02/14/2009 at 0735 hours, she flew on Continental Flight 586 from Houston, Texas to Orlando International Airport. She stated that, prior to checking her luggage in at Houston airport, she saw her two laptops, in their cases, inside her luggage. On 02/14/2009 at 1600 hours, White arrived at the Disney Pop Century resort, where her luggage had been delivered from Orlando International Airport. White opened her luggage and discovered that her Dell Inspi-ron 1525 laptop, S/N 6QVHYG1, and her HP Pavilion DV7 laptop had been removed from their cases and four compact disc boxes were also missing. White contacted the Houston Police Department and filed a report. White also contacted Absolute Software Corporation, which has tracking software on her Dell laptop. The total theft is estimated at $3100. White was later informed that the Dell Inspiron laptop was being used in Florida.
On 02/21/2009, White came to the Orlando International Airport Police Office and provided a sworn statement. The Dell Inspiron was entered into Teletype. White stated that she would call back with the model and serial number for the HP Pavilion laptop. Victim White stated that she did not give anyone permission to remove her property and she desires prosecution.
On 02/20/2009, I Detective Chris Hall was assigned to investigate this case. I received information from Jen Farrell, Theft Recovery Officer for Absolute Software Corporation. Farrell advised that the stolen Dell laptop has Compu-tracePlus software installed on it. The software instructs the laptop to contact the Absolute Monitoring Center, on a periodic basis, when connected to a phone line or any type of Internet connection. The Monitoring Center captures the caller ID of the phone line to which the laptop is connected and/or the originating Internet Protocol (IP) address of the laptop. ComputracePlus software was first activated on the Dell laptop on Saturday, February 07, 2009. Prior to the theft, this laptop has contacted the Monitoring Center on at least six occasions. The Monitoring Center recorded the correct data on all of the calls. After the theft of the laptop, Farrell stated that the company began monitoring the laptop and learned that Ramon Luis Oliveras at 5773 Five Flags Blvd. Apartment 2268, Orlando, Florida, was using the computer. Ferrell [sic] also provided the IP address 74.244.140.244 to which the stolen laptop is connected. After obtaining this information, it was learned that Ramon Luis Oliveras is employed by ASIG, as a bag runner. This company is responsible for transferring luggage from airplanes at Orlando International Airport (OIA), which are then delivered to Disney hotels. Ramon Oliveras was working on the date and time when Victim Billie White arrived at OIA. Jen Farrell provided documentation, which showed Ramon Oliveras, surfing the Internet and typing his address into the stolen computer.
A State of Florida Driver License check reveals that Ramon Luis Oliveras and Dafne Rodriguez both are tenants at 5773 Five Flags Blvd., apartment 2268. Since the beginning of 2009, the OPD Airport Division has received multiple police reports of laptop computers being stolen from passengers, traveling between OIA and Disney resorts.
Based upon the totality of the evidence, your affiant has probable cause to believe, and does believe, that certain stolen property, including: a Dell Inspiron laptop computer, S/N 6QVHYG1, and HP Pavilion DV7 laptop computer, six compact discs, and other stolen property, is being kept inside the residence, located at 5773 Five Flags Blvd, apartment 2268, Orlando, Florida.

The law is well-settled that before a search warrant may be issued, the issuing judge must examine the affidavit to see if sufficient facts are alleged to establish probable cause. Burnett v. State, 848 So.2d 1170, 1174 (Fla. 2d DCA 2003). The issuing judge fulfills this responsibility by making “a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); see also Willacy v. State, 967 So.2d 131 (Fla.2007); State v. Carreno, 35 So.3d 125 (Fla. 3d DCA 2010); State v. Irizarry, 948 So.2d 39 (Fla. 5th DCA 2006); State v. Siegel, 679 So.2d 1201 (Fla. 5th DCA 1996); State v. Price, 564 So.2d 1239 (Fla. 5th DCA 1990). Hence, probable cause requires the probability of criminal activity; it does not require absolute certainty or proof beyond a reasonable doubt. See Doorbal v. State, 837 So.2d 940 (Fla.2003); Irizarry. In other words, the standard for probable cause “requir[es] ‘more than mere suspicion but less evidence than is necessary to convict.’ ” United States v. Danhauer, 229 F.3d 1002, 1005 (10th Cir.2000) (quoting United States v. Burns, 624 F.2d 95, 99 (10th Cir.1980)).

When reviewing a prior determination of probable cause and the issuance of a search warrant, the reviewing circuit judge must accord deference to the issuing judge’s determination, presume it to be correct, and not disturb that determination unless there is a clear showing that the issuing judge abused his or her discretion in relying on the information in the affidavit. Willacy, 967 So.2d at 147; Carreno, 35 So.3d at 128; Price, 564 So.2d at 1241. “A trial court’s duty upon reviewing the magistrate’s decision to issue the search warrant is not to conduct a de novo determination of probable cause but to determine whether substantial evidence supported the magistrate’s finding that, based on the totality of the circumstances, probable cause existed to issue the warrant.” Willacy, 967 So.2d at 147.

We believe the affidavit sufficiently established probable cause for issuance of the search warrant. At the request of the victim, Absolute, a privately-hired company, voluntarily gave information to Officer Hall regarding the location of the stolen computer with the tracing software. Upon conducting independent research into the identity of the suspect and his employment, Officer Hall discovered the suspect was working for a baggage delivery service at the Orlando airport at the time the computers were stolen and, thus, had access to them. The verification of the information provided by Absolute was sufficient to establish the reliability of the information. Moreover, Officer Hall testified to having had prior experience with this tracing system, and Absolute informed him that the software on the victim’s computer had sent identifiably correct information on six prior dates. As for Officer Hall himself, the affidavit sets forth his credentials, including that he has a bachelor’s degree in criminology and was assigned to the Airport Investigative Unit, where he had investigated numerous instances of stolen property. Clearly, the information contained in the affidavit provided a fair probability to warrant a cautious person, the issuing judge, to believe that the stolen computers were at the location specified in the warrant. As the courts have repeatedly held, proof beyond a reasonable doubt is not the standard for probable cause. Hence, whether Officer Hall knew the particular scientific or technical principles of how the computer software worked and how Absolute was able to use it to track the stolen computers in the instant case was not necessary to obtain a search warrant based on probable cause. Had the reviewing circuit judge given deference to the issuing judge’s determination and accorded the requisite presumption of correctness, it is difficult to see how the decision to issue the warrant could be viewed as improper.

We note, parenthetically, that Oliv-eras does not argue in support of the reasoning applied by the reviewing circuit judge. Rather, Oliveras continues to assert on appeal that suppression was proper based on Officer Hall’s failure to obtain a warrant or court order under section 934.23 before obtaining the information from Absolute. We do not believe that section 934.23 is applicable. That statute provides in pertinent part:

An investigative or law enforcement officer may require the disclosure by a provider of electronic communication service of the contents of a wire or electronic communication that has been in electronic storage in an electronic communications system for 180 days or less only pursuant to a warrant issued by the judge of a court of competent jurisdiction.

§ 934.23(1), Fla. Stat. (2009).

Here, law enforcement never required Absolute to do anything. To the contrary, the victim consented and, in fact, requested Absolute to provide information to the police. The victim had paid for the emanation of this information from her computer and, in fulfillment of their contract, Absolute complied. While section 934.22, Florida Statutes (2009), generally prohibits a provider of electronic communications from voluntarily divulging the contents of a communication, there is an exception in section 934.22(2) that “[a] provider ... may divulge the contents of a communication ... [t]o an addressee or intended recipient of such communication or an agent of such addressee or intended recipient.” § 934.22(2)(a), Fla. Stat. (2009). Here, the victim is the intended recipient of the tracking and identification information because she paid for that information to be captured from her own computer, pursuant to her contract with Absolute. The victim was entitled to the information and to request Absolute to provide it to Officer Hall. Moreover, the information gleaned by Absolute pertains only to the thief, who lacked any reasonable expectation of privacy with respect to any communication he transmitted to, through, or from the stolen computer.

We conclude that the provisions of section 934.23, Florida Statutes, are not applicable under the facts of this case and that the trial court’s reason for suppressing the evidence is erroneous. Accordingly, we reverse the order granting the motion to suppress.

REVERSED.

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

      . This is not a case where law enforcement installed a tracking device in order to pursue a suspect. Rather, the computer's owner contracted with the private corporation, Absolute Software Corporation, to have the monitoring software installed on the computer at the time of purchase, and it was the owner who contacted the monitoring company and initiated the search for her property once it was stolen. Law enforcement was not involved in this process whatsoever. "Importantly, the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was conducted by a private individual." Armstrong v. State, 46 So.3d 589, 593-94 (Fla. 1st DCA 2010) (emphasis in original) (citing Smith v. Maryland, 442 U.S. 735, 740, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979); Pomerantz v. State, 372 So.2d 104, 108 (Fla. 3d DCA 1979)), review denied, 44 So.3d 581 (Fla.2010).