text:
    Christopher JOHNSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-2149, 4D10-5362, 4D10-5363 and 4D10-5364.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Christopher Johnson, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

We sua sponte consolidate appellant’s three rule 3.850 summary appeals, case nos. 4D10-5362, 4D10-5363, and 4D10-5364, with his related rule 3.800 appeal, case no. 4D10-2149, and affirm the summary denial of all four motions.

With respect to the first appeal, appellant’s rule 3.800(a) motion actually challenged his conviction in lower tribunal case no. 2005CF015334AXX for violating section 322.34(5), Florida Statutes (2005) (driving while license has been revoked pursuant to section 322.264 (habitual offender)), not the legality of his sentence; thus, the ground was not cognizable in a rule 3.800(a) motion.

We also note that he based his challenge on the alleged invalidity of certain prior convictions that presumably had caused his license to be revoked as a habitual offender. However, the convictions that cause a driver to be classified as a habitual offender under section 322.264 are not an element of the offense of violating section 322.34(5):

The violation created by section 322.34(5) does not involve-as an element of the crime-a finding that the motorist has been convicted on three separate occasions of DWLS. Instead it involves driving a motor vehicle on the public highways of Florida at a time when DMV has revoked the motorist’s license and given notice of the revocation. Thus it is not necessary for the state to prove each separate conviction of DWLS which DMV relied on in revoking the license.

Rodgers v. State, 804 So,2d 480, 483 (Fla. 4th DCA 2001) (footnote omitted).

In the three rule 3.850 motions, appellant sought to vacate three convictions, in three separate cases-L.T. case nos. 2002CF014236AXX, 2003CF000688AXX, and 2003CF000769AXX-for violating section 322.34(5). The same ground, identical in each motion, was based on an argument that chapter 98-223, Laws of Florida, which the supreme court held violated the single subject requirement of the Florida Constitution, “created” section 322.34, Florida Statutes, and that the three convictions were nonexistent because the offenses in question all were committed during the window period when section 322.34 was unconstitutional. However, the session law in question did not create section 322.34, but merely amended subsection 322.34(2) of that statute. Ch. 98-223, § 12, at 2108-09, Laws of Fla. The appellant did not demonstrate how that amendment affected him, and we see no way for him to amend to do so.

Affirmed.

STEVENSON, LEVINE and CONNER, JJ., concur.

      . The three convictions and sentences that were the subject of the three rule 3.850 motions became final in July 2003, so the three motions, filed in either November or December 2010, apparently were untimely. However, as appellant argued in his motions, a conviction for a nonexistent crime is a fundamental error that can be raised at any time, including in a rule 3.850 motion. Moore v. State, 924 So.2d 840 (Fla. 4th DCA 2006). Thus, the trial court should have considered the three motions on their merits. On the records provided, we cannot determine whether it did so.

      . Dep’t of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003).

      . See Gillman v. State, 860 So.2d 1099, 1100 n. 1 (Fla. 1st DCA 2003) (providing that those persons who committed violation of section 322.341, a statute which was created by sections 2 and 13 of chapter 98-223, Laws of Florida, “on or after July 1, 1998, but before the reenactment became effective on May 21, 2003," were entitled to relief under Critch-field).

      . Subsection 322.34(2) provides the degree of offense and the penalty for first, second, and third convictions for driving while license canceled, suspended, or revoked, with knowledge of the cancelation, suspension, or revocation. Section 12 of Chapter 98-223 added the following language concerning the knowledge element of subsection 322.34(2):
      There shall be a rebuttable presumption that the knowledge requirement is satisfied if a judgment or order as provided in subsection (4) appears in the department’s records for any case except for one involving a suspension by the department for failure to pay a traffic fine or for a financial responsibility violation.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Felix CABRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2161.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Felix Cabrera, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Felix Cabrera (Defendant) appeals an order of the Broward County circuit court, summarily denying his rule 3.800(a) motion to correct illegal sentence, seeking additional credit for jail time served, and the order denying his motion for rehearing.

Defendant sought credit for time served in the St. Lucie County Jail in connection with an unrelated offense. He alleged that late in February 2006, soon after his arrest in St. Lucie County, he was served with a violation of probation warrant in connection with the instant Broward case. In April 2007, over a year later, he was transferred to Broward County after the St. Lucie case was resolved.

The trial court denied the motion based on the state’s response, which argued that Defendant did not provide sufficient information to establish his entitlement to additional credit because he failed to list the specific dates of his incarceration, and did not attach any documentation to support his claim. Defendant argued in his motion for rehearing that his indigence prevented him from obtaining records from the St. Lucie County Jail, but the state could obtain them, and they would demonstrate his entitlement to the additional credit. He argued that he had to be allowed the same opportunity to litigate as a person of means.

A motion for jail time credit is cognizable under rule 3.800(a) only if the movant “affirmatively alleged that the court records demonstrate on their face an entitlement to relief.” State v. Mancillo, 714 So.2d 429, 433 (Fla.1998) (emphasis added); see also Toro v. State, 719 So.2d 947, 948 (Fla. 4th DCA 1998) (adopting requirement that rule 3.800(a) motion for jail time credit “will have to allege where in the record the information can be located and explain how the record demonstrates entitlement to the relief requested.”) (emphasis added). Defendant’s motion was insufficient in that it did not affirmatively allege where his Broward County records would demonstrate his entitlement to relief — he alleged only that those records would be found with the St. Lucie County sheriff. Even if he could obtain the records, under rule 3.800(a) he would not be entitled to an evidentiary hearing during which he could offer them into evidence; a claim of error that cannot be established without relying on facts that are not evident on the face of the record is a claim that cannot be adjudicated under rule 3.800(a). Johnson v. State, 60 So.3d 1045, 1053 (Fla.2011) (citing Brooks v. State, 969 So.2d 238 (Fla.2007)).

Affirmed.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.

      . Had Defendant filed a timely sworn rule 3.850 motion raising this claim, the state would have had the burden of refuting it, and an evidentiary hearing would have been possible. But even if this were the case, or even if the records concerning the date when Defendant was served with the Broward warrant were a matter of record in his Broward case, Defendant is mistaken that he automatically would be entitled to credit for all the time he was incarcerated in St. Lucie County after service of the Broward warrant. Taking judicial notice under section 90.202(6), Florida Statutes, of our own file in Defendant's prior rule 3.850 appeal, which contains a transcript of his plea and sentencing colloquy, it is clear that the trial court rejected Defendant’s request for his sentence in this case to be made concurrent with his sentence in his then recently resolved St. Lucie County case. In light of the fact that the sentences were run consecutively, Defendant could not be entitled to jail time credit for the time he spent in St. Lucie County jail in connection with the St. Lucie County case against his sentence in the Broward County case. Ransone v. State, 20 So.3d 445 (Fla. 4th DCA 2009), approved, 48 So.3d 692 (Fla.2010).


text:
    MID-CONTINENT CASUALTY COMPANY, Petitioner, v. UNITED RENTALS, INC., Respondent.
    No. 4D11-149.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      Maureen G. Pearcy, Melissa A. Gillinov and Ronald L. Rammer of Hinshaw & Culbertson, L.L.P., Miami, for petitioner.
    Stefanie R. Shelley, Alan B. Rose and Randy R. Dow of Page, Mrachek, Fitzgerald & Rose, P.A., West Palm Beach, for respondent.
   PER CURIAM.

Petitioner Mid-Continent Casualty Company (MCC) seeks certiorari review and relief from a Broward Circuit Court order denying its motion to dismiss or sever respondent United Rentals, Inc.’s (United Rentals) third party claim against it for declaratory relief. We deny the petition in part insofar as it challenges the order denying petitioner’s motion to dismiss, but grant the petition insofar as the trial court denied the motion to sever. We quash the order to that extent, and remand for further proceedings.

This cause arises from a wrongful death action filed by the personal representative of the Estate of Larry Christopher Ferguson (Ferguson) against General Interior Systems Southern, Inc. (GIS), United Rentals, and other defendants. Ferguson, an electrician performing contract work for Courteaux Electric, died after operating a scissor lift leased by GIS from United Rentals, an equipment rental company.

GIS had entered into a rental agreement with United Rentals which required it to carry and maintain insurance coverage for any damage to the equipment and to name United Rentals as an additional insured and loss payee. As well, it provided that GIS would indemnify and hold United Rentals harmless from any liability, claim, loss or other damage caused by or arising from use of the rented equipment. MCC issued a commercial general liability and commercial excess insurance policy to GIS for the period covering the lift accident in this case.

In the wrongful death action by the Estate, nine defendants are named including GIS and United Rentals, and the claims include strict liability and negligence for manufacturing defects, design defects, and warning defects. United Rentals filed cross-claims against GIS and included MCC as a cross-defendant. It sought a declaratory judgment that it was an insured under the MCC policies. It also asserts that GIS was contractually obligated to indemnify it and to have United Rentals named as an additional insured under its insurance policy, underwritten by MCC.

MCC moved to dismiss or sever the insurance coverage action from the wrongful death action. It argued that including the two claims in one pending lawsuit would violate Florida’s non-joinder statute, section 627.4136(1), Florida Statutes. Alternatively, MCC sought to sever the coverage claims from the wrongful death tort claims pursuant to Florida Rule of Civil Procedure 1.270(a). The trial judge offered to grant the motion for severance conditioned on MCC’s stipulation that it would be bound by the jury’s findings on liability in the Estate’s wrongful death action, but MCC would not agree to that. The trial judge denied MCC’s motion to dismiss or sever, leading to this petition for writ of certiorari.

Certiorari will lie from a trial court order denying a motion to sever an insurance coverage action from the underlying tort action. See, e.g., Merchants & Businessmen’s Mut. Ins. Co. v. Bennis, 686 So.2d 593 (Fla. 4th DCA 1994). The petitioner must demonstrate that the trial court order departed from the essential requirements of law resulting in material harm of an irreparable nature. See generally Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996).

MCC argues that the order denying severance or dismissal in this case warrants certiorari relief because it allows United Rentals to proceed with its insurance coverage claims in the same proceeding as the underlying tort action. The issues of insurance coverage would be interjected into the wrongful death action. MCC would be forced to participate in discovery as the lone insurer in a wrongful death action against multiple defendants, and parties with no rights under its policy would be permitted access to discovery on United Rentals’s coverage claims.

Florida’s non-joinder of insurers statute, section 627.4136(1), Florida Statutes, provides in part:

It shall be a condition precedent to the accrual or maintenance of a cause of action against a liability insurer by a person not an insured under the terms of the liability insurance contract that such person shall first obtain a settlement or verdict against a person who is an insured under the terms of such policy for a cause of action which is covered by such policy.

The legislative intent for this statute is to “ensure that the availability of insurance has no influence on the jury’s determination of the insured’s liability and damages.” General Star Indem. Co. v. Boran Craig Barber Engel Constr., 895 So.2d 1136, 1138 (Fla. 2d DCA 2005). In Merchants & Businessmen’s Mutual Insurance Co., we acknowledged that severance is discretionary under Florida Rule of Civil Procedure 1.270(b), but concluded that in a case with one tort claim against an insured and another claim for coverage under an insurance policy, there is no reason for the two claims to be tried together. That would defeat the purpose and policy of the non-joinder statute. 636 So.2d at 595.

We do not believe that two trials on the wrongful death issues would be necessary, particularly if the trial court were to conduct trial in the declaratory judgment action by United Rentals against MCC before the separate wrongful death action. United Rentals’s third party action against MCC is based on the insurance contract between GIS and MCC, while the Estate’s wrongful death action seeks damages for the wrongful death of Larry Christopher Ferguson.

Therefore we deny the petition insofar as petitioner challenges the trial court’s denial of the motion to dismiss, but grant the petition for writ of certiorari and quash the trial court’s ruling denying the motion to sever.

POLEN, TAYLOR and GERBER, JJ„ concur.


text:
    William Grant SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-421.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.
    William Grant Sanders, Punta Gorda, pro se.
    No appearance required for appellee.
   PER CURIAM.

William Grant Sanders appeals the summary denial of his Motion for Court Transcripts at State Expense. We affirm. See Vanover v. State, 946 So.2d 1152, 1152 (Fla. 4th DCA 2006) (“ ‘Beyond the record provided for a direct appeal, [a prisoner] is not entitled to free transcripts to assist in the preparation of either a postconviction motion or a petition for extraordinary relief.’ ” (quoting Golden v. State, 870 So.2d 167, 167 (Fla. 2d DCA 2004)); accord Meader v. State, 59 So.3d 1202 (Fla. 4th DCA 2011).

Affirmed.

HAZOURI, MAY and DAMOORGIAN, JJ., concur.


text:
    Colin DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1118.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Colin Davis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

Affirmed. Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


author: BENTON, C.J.

text:
    MANATEE EDUCATION ASSOCIATION, FEA, AFT (Local 3821), AFL-CIO, Appellant, v. SCHOOL BOARD OF MANATEE COUNTY, Florida and Florida Public Employees Relations Commission, Appellees.
    No. 1D09-1435.
    District Court of Appeal of Florida, First District.
    June 2, 2011.

      Thomas W. Brooks and Jennifer S. Blohm of Meyers, Brooks, Demma, Aspros & Blohm, P.A., Tallahassee, for Appellant.
    Paul A. Donnelly, Laura A. Gross, and Jung Yoon, Gainesville, for Amici Curiae Communications Workers of America, AFL-CIO and Professional Firefighters of Ocala, IAFF Local 2135; G. Hal Johnson, Tallahassee for Amicus Curiae Florida Police Benevolent Association, Inc.; Richard A. Sicking, Coral Gables, for Amicus Curiae Florida Professional Firefighters, Inc.; Noah Scott Warman of Sugarman & Suss-kind, Coral Gables, for Amicus Curiae Government Supervisors Association of Florida, OPEIU, Local 100 & Teamsters Local 769. John W. Bowen, Bradenton, and Thomas M. Gonzalez, Brian C. Ussery, and Christopher M. Bentley of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee School Board of Manatee County, Florida.
    Joey D. Rix, Staff Attorney, Public Employees Relations Commission, Tallahassee, for Appellee Public Employees Relations Commission.
    Thomas M. Gonzalez, Brian C. Ussery, and Christopher M. Bentley of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Amici Curiae Florida School Boards Association, Inc. and Florida Association of District School Superintendents.
   BENTON, C.J.

A union that represents teachers and paraprofessionals, the Manatee Education Association, FEA, AFT (Local 3821), AFL-CIO (the union), appeals a final order of the Public Employees Relations Commission (PERC) dismissing an unfair labor practice charge the union filed against the School Board of Manatee County (School Board), alleging that the School Board had committed an unfair labor practice by improperly invoking section 447.4095, Florida Statutes (2008). Concluding that PERC erred in dismissing the unfair labor practice charge without determining whether a “financial urgency” within the meaning of section 447.4095 existed, we reverse the final order in part, and remand for further proceedings.

A public employer may declare a “financial urgency” pursuant to section 447.4095, and proceed accordingly. But the employer’s mere declaration cannot conclusively resolve the question. Absent some compelling state interest — determined to be such in a neutral forum, ultimately subject to judicial review — a public employer cannot unilaterally abrogate a collective bargaining agreement, consistently with public employees’ constitutional right to bargain collectively. See Art. I, § 6, Fla. Const. (“The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged.”).

Once the fourteen-day period specified in section 447.4095 has run, the union is free to file an unfair labor practice charge disputing the employer’s claim of “financial urgency.” In that event, it is incumbent on PERC to decide whether a “financial urgency” within the meaning of the statute — construed in keeping with the Florida Constitution — actually existed. If so, PERC should dismiss the charge. If not, PERC should order appropriate relief.

The public employer does not have to obtain a ruling that a genuine “financial urgency” exists before it proceeds under section 447.4095. If the union chooses not to participate in negotiations contemplated by section 447.4095, it runs the risk that PERC will find that a “financial urgency” did exist, and dismiss its unfair labor practice charge, with the result that any changes implemented pursuant to section 447.4095 will remain in effect. But the union need not participate in proceedings under section 447.4095 as a precondition to obtaining a decision on whether there was in fact a “financial urgency.”

In the present case, the School Board and the union entered into a three-year collective bargaining agreement (CBA) in 2007. The CBA provided that eligible employees would receive an automatic, annual “step” increase in salary, including an increase which was to have become effective for the 2008/2009 fiscal year on August 15, 2008. But the CBA also provided for the “reopening” of negotiations on its compensation provisions on or before June 1 of each year in which it was in force.

On May 5, 2008, Dr. Dearing, the Superintendent of Schools for Manatee County, informed the union that, given legislative funding levels, the School Board was declaring a “financial urgency” requiring the modification of the CBA pursuant to section 447.4095. The statute provides:

In the event of a financial urgency requiring modification of an agreement, the chief executive officer or his or her representative and the bargaining agent or its representative shall meet as soon as possible to negotiate the impact of the financial urgency. If after a reasonable period of negotiation which shall not exceed 14 days, a dispute exists between the public employer and the bargaining agent, an impasse shall be deemed to have occurred, and one of the parties shall so declare in writing to the other party and to the commission. The parties shall then proceed pursuant to the provisions of s. 447.403. An unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.

§ 447.4095, Fla. Stat. (2007) (emphasis supplied). The union responded that any declaration of financial urgency was premature at best, but made it clear that it was willing to reopen negotiations on issues concerning compensation under the CBA’s reopener clause, in light of the School Board’s financial circumstances.

On May 7, 2008, the Superintendent reiterated his claim that the School Board was facing a financial urgency. The Board then went forward unilaterally under section 447.4095, informing the union of the Board’s proposed modifications to the CBA on May 20, 2008. The union again responded that proceeding under section 447.4095 was unwarranted, but that it was willing to begin negotiations immediately under the reopener provision.

On May 23, 2008, the School Board notified PERC that it was declaring an impasse, based on the union’s refusal to bargain under section 447.4095 and the failure of the parties to reach an agreement within the fourteen-day statutory time period, and requested the appointment of a special magistrate pursuant to section 447.403, Florida Statutes (2007). The union objected to the declaration of impasse and to the appointment of a special magistrate, on grounds that section 447.4095 had been improperly invoked in the absence of a true “financial urgency.”

The union persisted in this view even after PERC appointed a special magistrate, and on that basis declined to participate in proceedings before the special magistrate. The special magistrate conducted a hearing without the union present and issued a report on July 11, 2008, which recommended acceptance of the School Board’s position on all impasse issues. The special magistrate ruled that whether or not the School Board had properly declared financial urgency was not a question for him to decide.

On July 17, 2008, the Superintendent sent a letter to PERC ostensibly rejecting the magistrate’s recommendations, while indicating he would advocate that the School Board, sitting as the legislative body to resolve the alleged impasse, adopt the selfsame recommendations. His stated purpose in taking this approach was to give the union an opportunity to present proposals to the School Board during an impasse resolution meeting conducted pursuant to section 447.403(4), Florida Statutes (2008). In a special meeting held August 4, 2008, the School Board approved the Superintendent’s recommendation to impose the changes the special magistrate had recommended in the section 447.4095 process.

On August 7, 2008, the union filed with PERC an unfair labor practice charge against the School Board. The union alleged the School Board violated sections 447.501(l)(a) and (c), Florida Statutes (2008), when it improperly invoked section 447.4095 and refused to postpone the legislative body hearing so that then pending and already fruitful Interest Based Bargaining negotiations could go forward. The School Board asserted that the union had “waived its right to bargain the matters raised ... by failing to negotiate in good faith or at all, by refusing to take part in any of the [section 447.4095] process, including the special magistrate’s hearing, by failing to reject the special magistrate’s recommendation and failing to participate in the public hearing conducted by the School Board.”

After a hearing on the union’s unfair labor practice charge on October 3, 2008, the PERC hearing officer noted that the union had declined to participate in the section 447.4095 bargaining process, and determined that no unfair labor practice was committed when the School Board invoked that provision without first establishing it had no other viable alternative to meet a financial urgency. The PERC Final Order rejected the union’s assertions that the School Board was required to demonstrate a compelling state interest, and no other possible source for funding contractual obligations, prior to proceeding under section 447.4095.

A majority of the PERC commissioners also concluded that the union was “required to engage in an insulated period of negotiations over the impact of the financial urgency,” and concluded that because the union “refused to engage in such negotiations, the School [Board’s] declaration of an impasse, and subsequent modification to the collective bargaining agreements at issue pursuant to the impasse resolution procedures set forth in Section 447.40B, was not unlawful.” The majority did not reach the merits of the union’s contention that the School Board had improperly declared a financial urgency where none existed. In dissent, Commissioner Kossuth disagreed with the majority view that participation in the 14-day period of negotiations was a statutory prerequisite for filing an unfair labor practice charge contesting the existence of a financial urgency.

“Our review in this case is de novo. While we acknowledge the case law that accords deference to PERC and warns that PERC’s interpretation of the law should not be reversed unless clearly erroneous, we ... do not have to accord deference to PERC’s interpretation of the law where that interpretation conflicts with the plain and ordinary meaning of the statute.” Fla. Pub. Emps. Council 79, AFSCME, AFL-CIO v. State, 921 So.2d 676, 681 (Fla. 1st DCA 2006) (citation omitted). See also Colbert v. Dep’t of Health, 890 So.2d 1165, 1166 (Fla. 1st DCA 2004) (concluding judicial deference need not be given to the agency’s interpretation of law if that interpretation conflicts with the plain and ordinary intent of the law); Doyle v. Dep’t of Bus. Reg., 794 So.2d 686, 690 (Fla. 1st DCA 2001) (“An administrative agency’s interpretation of a statute that it applies is usually accorded substantial deference unless the interpretation is clearly erroneous”).

We reject the union’s assertion that the School Board was required to prove the existence of a financial urgency before proceeding under section 447.4095. Although the availability of section 447.4095 turns on “a financial urgency requiring modification of an agreement,” the statute also directs the parties to “meet as soon as possible to negotiate the impact of the financial urgency,” and provides that an “unfair labor practice charge shall not be filed during the 14 days during which negotiations are occurring pursuant to this section.” As the final order under review states, section 447.4095 was “intended to provide public employers and bargaining agents an opportunity to engage in abbreviated impact bargaining when faced with a financial urgency requiring modification of an agreement.” Requiring proof of financial urgency before resort to section 447.4095 could result in substantial delays, delays which could effectively eliminate the ability to address a financial urgency, frustrating the obvious purpose of the statute. We affirm PERC’s determination that section 447.4095 does not place any temporal preconditions on the initiation of the process section 447.4095 authorizes.

But PERC’s determination that a union must participate in section 447.4095 negotiations in order to file (at some later time) an unfair labor practice charge — on grounds the public employer improperly invoked section 447.4095 in the absence of a real “financial urgency” — has no statutory warrant, is clearly erroneous, and must be reversed. To permit public employers to declare a financial urgency, then to modify a collective bargaining agreement unilaterally, without permitting the union to contest the accuracy of the declaration, would render collective bargaining agreements illusory and the collective bargaining process nugatory. In construing Chapter 447, it is important to bear in mind “the Florida Constitution’s protection of the right of collective bargaining against statutory impairment.” Sch. Bd. of Polk Cnty. v. Polk Educ. Ass’n, Inc., 480 So.2d 1360, 1363 (Fla. 1st DCA 1985). “[T]he Supreme Court of Florida has ruled that (except for the prohibition against strikes and subject to the legislative power over appropriations) public employees have the same right to bargain collectively that private employees have.” Chiles v. State Emps. Attorneys Guild, 714 So.2d 502, 504-05 (Fla. 1st DCA 1998), aff'd., 734 So.2d 1030 (1999) (citing City of Tallahassee v. Pub. Emps. Relations Comm’n, 410 So.2d 487 (Fla.1981)).

Without any statutory authority, PERC’s interpretation requires that unfair labor practice allegations arising from a public employer’s invocation of section 447.4095be litigated as part of the section 447.4095process itself. The special magistrate rejected this view, as do we. Section 447.4095contains no requirement that the question whether a financial urgency actually existed must be negotiated or otherwise determined as part of the section 447.4095process. Nothing in section 447.4095evinces a legislative purpose to abrogate or alter a party’s right to charge an unfair labor practice pursuant to section 447.501.

In response to the School Board’s invocation of section 447.4095 in the present case, the union “promptly and repeatedly asserted” at every stage that proceeding under section 447.4095 was not proper or required. See Bd. of Cnty. Comm’rs of Jackson Cnty. v. Int’l Union of Operating Engineers, Local 653, 620 So.2d 1062, 1065 (Fla. 1st DCA 1993) (“Waiver is the intentional or voluntary relinquishment of a known right, or conduct which warrants an inference of the relinquishment of a known right.”).

In Florida State Lodge, Fraternal Order of Police, Ocala Local 129 v. City of Ocala, 24 F.P.E.R. 29335 at 582-83 (1998), the City argued that the union — by protesting a proposed pay-period-change, without making a demand to negotiate — waived its right to bargain over any alteration of the pay schedule. PERC rejected this argument, stating:

[T]he City asserts that the [union] was required to renegotiate the provisions in the collective bargaining agreement relating to the pay period upon receiving notice of the City’s desire to do so. According to the City, the [union’s] explicit refusal to re-negotiate constitutes a waiver of its rights....
Absent a reopener provision or proof of financial urgency, a union is not obligated to negotiate changes to contractual provisions merely upon a request to do so by the public employer. See Section 447.4095, Fla. Stat. (1997)....
The Jackson County[ ] decision relied upon by the City does not warrant a different conclusion. In Jackson County the union did not explicitly refuse to re-negotiate a contract provision; the union failed to respond when the public employer announced its intention to deviate from the collective bargaining agreement.
The [union’s] conduct in this case bears little resemblance to the conduct of the union in Jackson County. In response to the City’s announcement that it was changing the pay schedule, the [union] promptly and repeatedly asserted its right to uphold the pay schedule provisions in the collective bargaining agreement. The conduct of the [union] does not warrant an inference of relinquishment of its contractual rights.

Id. at 583. The City of Ocala case did not involve a public employer invoking section 447.4095, and PERC’s determination that the City violated sections 447.501(l)(a) and (c) did not involve an interpretation of section 447.4095. But the language in the City of Ocala decision that, absent a reo-pener provision or a financial urgency, the union was not required to renegotiate, is a correct statement of the law.

The union asks us to hold that the decision in Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla.1993), provides the test for “financial urgency” and to find that no financial urgency existed in this case. Chapter 447 contains no definition of “financial urgency.” As the final order notes, the issue was one of first impression before PERC, inasmuch as PERC “has never interpreted Section 447.4095 in the context of a public employer declaring a financial urgency under this statute.” But we do not reach the issue. At this juncture, we decline to decide what constitutes a “financial urgency” within the meaning of section 447.4095, or to make the initial factual determination regarding whether the School Board was faced with such a “financial urgency.”

On this question, we defer initially to PERC. “An agency has the principal responsibility of interpreting statutes dealing with matters within their regulatory jurisdiction and expertise.” Fla. Pub. Emps. Council 79, AFSCME v. Daniels, 646 So.2d 813, 816 (Fla. 1st DCA 1994) (citing Public Employees Relations Comm’n v. Dade Cnty. Police Benevolent Ass’n, 467 So.2d 987 (Fla.1985)). “PERC’s field of expertise is public sector labor regulation.” Doyle, 794 So.2d at 690.

We affirm PERC’s holding that the School Board did not forfeit the right to proceed under section 447.4095 by not seeking an adjudication of “financial urgency” before resort to section 447.4095 proceedings. But we reverse PERC’s holding that the union waived its right to contest the accuracy of the School Board’s declaration of financial urgency because the union did not participate in negotiations under section 447.4095, and remand for further proceedings.

Affirmed in part, reversed in part, and remanded.

WOLF and ROBERTS, JJ., concur.

      . Herb Tschappat, Chief Negotiator for the School Board, contacted the union during the debate over proceeding pursuant to section 447.4095, Florida Statutes (2008), in order to schedule a time to commence reopener negotiations. Mr. Tschappat purportedly informed the union that negotiations could proceed on two tracks. The parties agreed to pursue Interest Based Bargaining beginning on July 21, 2008, and contacted a federal mediator as required for that process.

      . The School Board’s proposal was to amend the CBA to: (i) reduce the teacher work year from 198 days to 196 days; (ii) reduce paraprofessional salaries by one percent; and (iii) renumber the scheduled salary steps so that employees who were eligible for step increases would advance one step, even though the net effect of the change would actually not entail a step increase.

      . Total savings from the changes were put at $3,603,115. The School Board indicated that if the union and superintendent subsequently reached an agreement with the necessary savings through the Interest Based Bargaining process, the decision would be revoked and the new agreement considered. The following day, Mr. Tschappat contacted the union about the possibility of resuming this process, but the union declined.

      . Section 447.501(1), Florida Statutes (2008), provides in part:
      (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

      (c) Refusing to bargain collectively, failing to bargain collectively in good faith, or refusing to sign a final agreement agreed upon with the certified bargaining agent for the public employees in the bargaining unit.

      .On July 21, 2008, the parties commenced Interest Based Bargaining negotiations pursuant to the reopener provision in the CBA. The parties met for several days and discussed methods to address the budget issues facing the School Board. A "quick fix” was proposed during these negotiations, but implementation would have required ratification by the bargaining units. The union requested the School Board forgo imposition of the section 447.4095 recommendations in order to allow the Interest Based Bargaining process to be completed.
      The School Board, proceeded however, with the section 447.4095 process, apparently concerned that the bargaining units would not ratify the "quick fix” proposal, so that any resulting impasse would not be resolved before the beginning of the school year, with the result the pay increases under the CBA would go into effect, perhaps necessitating a retroactive salary reduction.

      . In Florida State Lodge, Fraternal Order of Police, Ocala Local 129 v. City of Ocala, 24 F.P.E.R. 29335 (1998), the City and the union engaged in a reopener negotiating session in September 1997. During this session, the City did not propose any changes to the employees’ pay period. An amendment to the collective bargaining agreement was ratified on September 22 and 23, 1997. On September 24, 1997, the City sent a memorandum to all employees stating the City was changing their pay period from weekly to biweekly. The union sent a letter on October 9, 1997, protesting the change. On December 1, 1997, the union and City met to discuss the pay period change, with union representatives stating the meeting was to protest the change, and was not to be considered as a bargaining session or a demand to bargain. The City stated that the pay period change would proceed unless the union could provide some cost saving alternative. On January 1, 1998, the City changed the pay period to a biweekly schedule. The union then filed a grievance. Id. at 582.

      . Int’l Union of Operating Eng’s v. Bd. of Cnty. Comm’rs of Jackson Cnty., 18 F.P.E.R. 23138 (1992), rev’d., 620 So.2d 1062 (Fla. 1st DCA 1993).


author: BLACK, Judge.

text:
    Cherie YODER, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-520.
    District Court of Appeal of Florida, Second District.
    June 3, 2011.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   BLACK, Judge.

Cherie Yoder challenges her convictions and sentences for grand theft in the second degree and obtaining money from a pawnbroker by fraud. Ms. Yoder was charged with grand theft in the first degree (count I), dealing in stolen property (count II), and obtaining money from a pawnbroker by fraud (count III). The State subsequently nolle prossed count II. After a jury trial, Ms. Yoder was found guilty of count III, as charged, and of grand theft in the second degree, a lesser-included offense of the grand theft charged in count I. The trial court orally imposed concurrent sentences of three years in prison on counts I and III, followed by concurrent terms of twelve years of probation on count I and two years of probation on count III. We affirm Ms. Yoder’s convictions and sentences without further comment. We remand for the limited purpose of correcting scrivener’s errors which appear in the written judgment, the sentences, and the order of probation.

For reasons unclear from the record, the written judgment erroneously reflects that Ms. Yoder entered a guilty plea and that she was convicted of grand theft as charged, rather than the lesser-included grand theft in the second degree. Additionally, the written sentences and the order of probation erroneously reflect that Ms. Yoder was sentenced to two years of probation on count II, rather than count III. Accordingly, we affirm Ms. Yoder’s convictions and orally imposed sentences but remand for the trial court to enter a written judgment, written sentences, and an order of probation that correctly reflect Ms. Yoder’s convictions and sentences. See Willingham v. State, 48 So.3d 173, 173 (Fla. 2d DCA 2010); Matthews v. State, 48 So.3d 915, 916 (Fla. 2d DCA 2010).

Affirmed and remanded.

DAVIS and KHOUZAM, JJ., Concur.


author: POLEN, J.

text:
    Richard HENTZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-5160.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.

      Sean M. Wagner, Melbourne, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing.

POLEN, J.

We deny the State’s motion for rehearing, but withdraw our slip opinion, dated March 16, 2011, and issue the following to correct a factual misstatement in our slip opinion. This correction has no bearing on our analysis or the result reached.

Appellant, Richard Hentz, appeals the trial court’s order adjudicating him guilty of battery and sentencing him to 365 days imprisonment. Specifically, Hentz argues the trial court erred in denying his motion to suppress evidence because his phone conversation was tape recorded in violation of Florida’s wiretap statute. We hold that the trial court erred in denying Hentz’s motion to suppress and reverse the trial court’s order.

Hentz was charged with sexual battery while victim was physically helpless to resist (Count I) and simple battery (Count II) and entered a negotiated plea agreement whereby the State agreed to nolle pros Count I and Hentz agreed to plead no contest to Count II. Following the trial court’s denial of Hentz’s motion to suppress evidence, Hentz pled no contest to the battery charge. The State stipulated that the suppression of the photographic and video evidence at issue was dispositive.

On March 6, 2008, Detective Jeremy Shepherd of the Indian River County Sheriffs Department took Hentz’s co-defendant, John Menzel, to the Sheriffs office to interview him regarding an alleged sexual battery which occurred at Menzel’s home and which involved the alleged victim, Menzel, and Hentz. Both Menzel and Hentz were asked if they would voluntarily come with the officers to be interviewed; Menzel agreed to go and Hentz refused.

The audio and video recording equipment in the interview room were turned on approximately five or six minutes before Shepherd took Menzel into the room. This was standard procedure implemented to ensure that activating the recording devices would not be overlooked. About ten minutes elapsed between Menzel being seated in the interview room and Shepherd accompanying him. In the interim, Shepherd was in the tech room collaborating with other officers regarding the evidence already obtained and how the interview should be conducted. There were TV monitors in the tech room, and Shepherd noticed Menzel making a couple of phone calls. Shepherd and the other officers could not hear what was being said because the speakers in the tech room did not allow them to.

Shepherd testified regarding the interview room Menzel was seated in when the video footage of his phone conversation was recorded. Shepherd described the room as pretty small and typically able to fit two or three chairs/individuals. No audio or video equipment is readily visible to the occupants of the room, and no one ever informed Menzel that there was recording equipment in the room or that his conversations would be recorded while he was awaiting his interview. Shepherd made sure that Menzel felt comfortable and knew he was not under arrest — he reiterated that Menzel could use the bathroom, got Menzel a glass of water to drink, and told Menzel that the door was unlocked. Shepherd wanted to ensure that Menzel knew he was not in custody so he would be comfortable speaking openly and honestly. Thus, this was not a custodial situation.

Detective Parrish of the Indian River County Sheriffs Office testified that the microphone in the interview room is camouflaged to look like a light switch and that it is inconspicuous. Parrish also stated that the video camera in the room is about the size of a tape cassette cover and is camouflaged to look like a motion sensor. Parrish knew from previous experiences that the recording equipment in the interview room is sensitive enough to record both sides of a phone conversation taking place between an individual in the interview room and someone on the other end of the phone. Still, Parrish did not warn Menzel of that fact when he realized Men-zel was having a conversation on his cell phone in the interview room and was potentially unaware of the fact that it was being recorded. Hentz testified that he was at his house when he had the conversation with Menzel.

Menzel testified that the interview room was located inside the Sheriffs Administrative Building, that the individuals he saw walking around were wearing street clothes, and that the room itself looked like a small office. Menzel was never told the room was an interview room. Menzel informed Shepherd that he had phone calls to make to take care of some things. Shepherd never said anything regarding the recording devices in the room. The door to the room was shut, so Menzel believed he had privacy there to make his phone calls. While on the phone, Menzel kept his voice low so no one outside the room could hear the conversation. Menzel looked around the room to see if there was any recording or video equipment; he did not see any. On cross-examination, Men-zel acknowledged that the reason he was looking for recording equipment was because he knew there was a possibility that he might be recorded. Menzel did not think, however, that there could possibly be recording equipment in the room capable of intercepting both ends of a phone conversation.

About one week later, Shepherd reviewed the video tape of his interview with Menzel. Shepherd could hear Menzel talking to Hentz about Hentz’s cell phone. Specifically, Shepherd could hear Hentz say to Menzel that he was “freaking out” when the officers were looking around because of the pictures and video on his cell phone and that if the officers had found the phone, Menzel would have been “f*cked.” Shepherd learned from the Indian River County computer forensics specialist that, even if Hentz deleted the photos and video from the cell phone, they could be recovered as long as not too much time had passed. Once photos and videos are deleted, they remain in the phone’s memory for a period of time until the memory runs out of space. Once the phone runs out of memory, new data overwrites the deleted data, and it is lost forever.

Shepherd went to Hentz’s place of work, and told Hentz that his cell phone possibly contained evidence of a crime under investigation and that Shepherd would need to seize Hentz’s cell phone. Hentz repeatedly refused to give Shepherd his cell phone. Hentz worked in a Sprint cell phone store, and asked Shepherd to come back after Hentz was done working. But Shepherd was concerned that Hentz, working at a cell phone store, would figure out how to delete the data by the time Shepherd returned. The cell phone was ultimately seized. In the application for search warrant, Shepherd explained that Hentz had made statements during his phone conversation with Menzel which led Shepherd to believe that Hentz’s cell phone contained pictures and/or video evidence of the alleged sexual battery. Shepherd obtained a search warrant to search the phone’s contents. The search yielded incriminating photos and video footage implicating Hentz and Menzel in the crimes charged.

The tape of the intercepted phone conversation was played for the trial court. In it, Menzel called Hentz, told Hentz he would leave Menzel’s “thing” in his mailbox and asked whether Hentz knows why Menzel “did that.” Hentz replied:

Yeah, yeah, yeah, definitely. That was a good idea. Definitely. I was freaked out when they were looking. I go (inaudible) sh*t (inaudible) my f*cking phone’s not here (inaudible) I got pictures and video on there (inaudible) f* eking phone (inaudible) or not.

Defense counsel argued, in part, that the very evidence that provided Shepherd with probable cause to believe that the cell phone would provide evidence of a crime, i.e., Menzel and Hentz’s phone conversation, had been seized illegally. Specifically, counsel pointed out that Hentz’s statements. were made while Hentz was in his home, and thus, Hentz had a reasonable expectation of privacy which the officers violated by recording the conversation.

The State argued that Hentz’s cell phone conversation with Menzel was not intentionally intercepted as required by the statute at issue. Here, the State argued that the fact that the officers did not even review the tape for six days shows that they had no intention of intercepting Menzel’s cell phone conversations while he was waiting to be interviewed. The State also pointed out that the DVD shows Men-zel looking around the interview room which suggests that Menzel knew there was a possibility there were cameras recording him. The trial court denied the motion to suppress evidence, and Hentz subsequently pled guilty to battery and was sentenced to 365 days in county jail. Hentz now timely appeals.

On appeal, Hentz argues the trial court erred in denying his motion to suppress evidence because his phone conversation with Menzel was tape recorded in violation of Florida’s wiretap statute. The State responds that the motion was correctly denied based on the evidence adduced during the hearing.

A trial court’s ruling on a motion to suppress is clothed with a presumption of correctness on appeal, and a reviewing court must interpret the evidence in a manner most favorable to sustaining the trial court’s decision. State v. Hebert, 8 So.3d 393, 395 (Fla. 4th DCA 2009). Still, legal issues decided by the trial court are subject to de novo review. Id.

Both Hentz and the State agree that section 934.03, Florida Statutes, is determinative in the present case. That section provides in pertinent part:

(1) Except as otherwise specifically provided in this chapter, any person who:
(a) Intentionally intercepts, endeavors to intercept, or procures any other person to intercept or endeavor to intercept any wire, oral, or electronic communication;
(b) Intentionally uses, endeavors to use, or procures any other person to use or endeavor to use any electronic, mechanical, or other device to intercept any oral communication when:
1. Such device is affixed to, or otherwise transmits a signal through, a wire, cable, or other like connection used in wire communication; or
2. Such device transmits communications by radio or interferes with the transmission of such communication;
(c) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection;
(d) Intentionally uses, or endeavors to use, the contents of any -wire, oral, or electronic communication, knowing or having reason to know that the information was obtained through the interception of a wire, oral, or electronic communication in violation of this subsection; or
(e) Intentionally discloses, or endeavors to disclose, to any other person the contents of any wire, oral, or electronic communication intercepted by means authorized by subparagraph (2)(a)2., paragraph (2)(b), paragraph (2)(c), s. 934.07, or s. 934.09 when that person knows or has reason to know that the information was obtained through the interception of such a communication in connection with a criminal investigation, has obtained or received the information in connection with a criminal investigation, and intends to improperly obstruct, impede, or interfere with a duly authorized criminal investigation;
shall be punished as provided in subsection (4).[]

§ 934.03(1), Fla. Stat. (2008). Section 934.06 states that no part of an intercepted communication may be received into evidence where the disclosure of that information would be a violation of the statute. § 934.06, Fla. Stat. (2008).

The statute also provides the following definitions which are relevant to this court’s review:

(1)“Wire communication” means any aural transfer made in whole or in part through the use of facilities for the transmission of communications by the aid of wire, cable, or other like connection between the point of origin and the point of reception including the use of such connection in a switching station furnished or operated by any person engaged in providing or operating such facilities for the transmission of intrastate, interstate, or foreign communications or communications affecting intrastate, interstate, or foreign commerce.
(2) “Oral communication” means any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation and does not mean any public oral communication uttered at a public meeting or any electronic communication.
(3) “Intercept” means the aural or other acquisition of the contents of any wire, electronic, or oral communication through the use of any electronic, mechanical, or other device.

§ 934.02(1-3), Fla. Stat. (2008). Finally, as the Florida Supreme Court has explained, the statute protects only oral communications which one reasonably expects to be private:

The statute protects only those “oral communications” uttered by a person exhibiting an expectation of privacy under circumstances reasonably justifying such an expectation.
This expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A reasonable expectation of privacy under a given set of circumstances depends upon one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable.

State v. Inciarrano, 473 So.2d 1272, 1275 (Fla.l985)(emphasis in original).

The arguments in the present case focus primarily on two issues: (A) whether the officers intentionally intercepted the phone conversation, and (B) whether Hentz had a reasonable expectation that his phone conversation was private.

A. Whether the interception was intentional.

Hentz asserts that the interception was intentional because the officers knew from previous experience that the recording equipment was sensitive enough to pick up statements made by the individual on the other end of the phone, knew the recording equipment was on, and allowed Menzel to continue making cell phone calls. According to Hentz, “[Ijntent is not only a purposeful design to effect an outcome, but also a willful blindness to an otherwise obvious fact.” The State counters that the interception was not intentional because, although the officers intended to activate the recording equipment to ultimately record the interview, the officers never intended to intercept the phone conversations Menzel took part in while awaiting his interview. Neither party cites any case law to assist this court in determining whether the officers intentionally intercepted the phone conversation.

Insofar as section 984.03 is a criminal statute, whether the officers intentionally intercepted the conversation, within the meaning of the statute, turns on whether the statute contemplates general intent or specific intent.

A “general intent” statute is one that prohibits either a specific voluntary act or something that is substantially certain to result from the act (e.g., damage to a building is the natural result of the act of setting a building afire). A person’s subjective intent to cause the particular result is irrelevant to general intent crimes because the law ascribes to him a presumption that he intended such a result... .Thus, in general intent statutes words such as “willfully” or “intentionally,” without more, indicate only that the person must have intended to do the act and serve to distinguish that conduct from accidental (noncriminal) behavior or strict liability crimes....
Specific intent statutes, on the other hand, prohibit an act when accompanied by some intent other than the intent to do the act itself or the intent (or presumed intent) to cause the natural and necessary consequences of the act....Thus, to be a “specific intent” crime, a criminal statute which contains words of mental condition like “willfully” or “intentionally” should include language encompassing a subjective intent, for example, intent to cause a result in addition to that which is substantially certain to result from a statutorily prohibited act.

Linehan v. State, 442 So.2d 244, 247-48 (Fla. 2d DCA 1983).

The statute at issue here is a general intent statute in that it prohibits the interception of oral communication and makes no mention of a subjective intent “to cause a result in addition to that which is substantially certain to result” from the interception. There is no doubt that the officers had a general intent to intercept Menzel’s oral communication while he was in the room. The more difficult issue is whether there was an intent to intercept Hentz’s statements made during a phone conversation with Menzel. In light of the officers’ knowledge that the recording equipment was on and was sensitive enough to intercept the other end of a phone conversation, the officers in the present case did intentionally intercept Hentz’s oral communication within the meaning of the statute at issue.

B. Whether Hentz had a reasonable expectation of privacy in the phone conversation.

Hentz argues that he had a reasonable expectation of privacy in the phone conversation because he was in his home during the conversation, did not direct his communications to multiple people, and did not know that Menzel was sitting in an interview room at the time of the conversation.

Hentz relies on State v. Mozo, 655 So.2d 1115 (Fla.1995), to support his proposition that, because he was in his home at the time of the phone conversation, he had a reasonable expectation of privacy. In Mozo, police officers used a scanning device to scan frequencies at random in hopes of intercepting information regarding illegal activity. Id. at 1115. The officers intercepted numerous phone calls, including one in which a woman was communicating with an unidentified male via cordless phone about the availability of “powder” and “rocks.” Id. at 1116. The police determined which apartment the calls were originating from and, after further surveillance, the police obtained a search warrant for the apartment. Id. After being charged with various drug charges, the defendants moved to suppress evidence seized from their home on the grounds that the search resulted from the government’s illegal interception of private telephone calls in their home. Id.

The trial court denied the motion to suppress, and this court reversed on the basis that the interception was in violation of article 1, sections 12 and 23 of the Florida Constitution. Id. This court held that chapter 934, Florida Statutes, did not apply to oral communications conducted over a cordless phone. Id. The Supreme Court agreed with our decision to reverse but explicitly held that “oral communications conducted over a cordless phone within the privacy of one’s own home are protected by Florida’s Security of Communications Act.” Id. Regarding the reasonableness of the Mozos’ expectation of privacy in their telephone conversations, the court explained:

The actual “interception” of a communication occurs not where such is ultimately heard or recorded but where the communication originates. See United States v. Nelson, 837 F.2d 1519 (11th Cir.), cert. denied, 488 U.S. 829, 109 S.Ct. 82, 102 L.Ed.2d 58 (1988). Here, the “intercepted” conversations originated within the Mozos’ home and thus exhibited the required expectation of privacy demanded by section 934.02(2). It is a well-established principle that citizens are guaranteed a reasonable expectation of privacy in their own home. See U.S. Const, amend. IV; Art. I, §§ 12, 23, Fla. Const. “The State’s interest in protecting the well-being, tranquility, and privacy of the home is certainly of the highest order in a free and civilized society.” Carey v. Brown, 447 U.S. 455, 471, 100 S.Ct. 2286, 2296, 65 L.Ed.2d 263 (1980). Therefore, having determined that oral communications occurring in a citizen’s home justify an expectation that such communication is not subject to interception, we conclude that the interception of these cordless phone communications which originated within the Mozos’ home violated Florida’s Security of Communications Act, chapter 934, Florida Statutes (1991).

Id. at 1117.

The State asserts that the phone call in the instant case “originated” at the police station from which Menzel called Hentz. Thus, according to the State, the call originated from the police station where Men-zel had no reasonable expectation of privacy, and the phone conversation was not within the ambit of the statute. Perhaps for this reason, much of the focus below was on whether Menzel had a reasonable expectation of privacy in the interview room at the Sheriffs Office Administrative Building. However, Hentz’s statements provided the basis for Shepherd’s Probable Cause Affidavit and ultimately resulted in the search of his cell phone. Therefore, the proper focus is on whether Hentz had a reasonable expectation of privacy.

Moreover, the Mozo opinion holds that the interception of an oral communication occurs where the communication originates — not where the phone call originates or where the communication was initiated. Here, the communication at issue — Hentz’s statements regarding pictures and video on his cell phone — originated in his home where he was sitting during the cell phone conversation with Menzel.

As the State points out, Hentz did know that Menzel was at the police station when the conversation took place. Hentz specifically asked Menzel whether he had gone to the station yet, and Menzel replied, “I’m sitting here waiting.” Thus, factually, this case is certainly distinguishable from Mozo. But in light of the Mozo opinion and the protection afforded communications that occur from within one’s home, Hentz had a subjective expectation of privacy in his statements and his expectation was one society accepts as reasonable.

Reversed.

HAZOURI and CIKLIN, JJ„ concur.

      . Co-defendant Menzel joined in Hentz’s motion to suppress evidence. Accordingly, both Menzel and Hentz offered evidence and testimony in support of the motion to suppress.

      . Subsection (4) provides that a violation of subsection (1) is a third degree felony. § 934.03(4)(a), Fla. Stat. (2008).

      . The statute does provide an exception for interception of communication by law enforcement officers where either the officer is a party to the intercepted communication or has the prior consent of a party to the communication. § 934.03(2)(c), Fla. Stat. (2008). However, this exception does not apply in the instant case.

      . We emphasize that whether or not Menzel had a reasonable expectation of privacy is irrelevant for our analysis; it is only Hentz’s perspective that we address.


author: GROSS, C.J.

text:
    BGT GROUP, INC., Appellant, v. TRADEWINDS ENGINE SERVICES, LLC, Appellee.
    No. 4D10-4120.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.

      Steven L. Brannock and Sarah C. Pel-lenbarg of Brannock & Humphries, Tampa, and Jason Korn of Cohen & Grigsby, Bonita Springs, for appellant.
    M. Glenn Curran, III, P.A., of Curran Law Group, Fort Lauderdale, for appellee.
   GROSS, C.J.

This is BGT Group, Inc.’s appeal from a non-final order denying its motion to compel arbitration of its dispute with Trade-winds Engine Services, LLC. We affirm the order, because the contract documents failed to sufficiently describe the collateral document that contained an arbitration clause, so that it failed to incorporate it by reference into the sales contract.

This dispute arises from BGT’s sale of used gas turbine parts for power generation to Tradewinds. BGT claims that Tradewinds breached the sales contract by failing to make the final payment; Tradewinds contends that BGT falsely represented the condition of the parts. In January, 2009, BGT filed a demand for arbitration. A month later, Tradewinds filed a complaint for breach of contract, subsequently adding counts for fraud. BGT moved to compel arbitration. Trade-winds moved to stay arbitration. The circuit court held an evidentiary hearing and we recount the evidence in the light most favorable to Tradewinds, the prevailing party below.

After being approached by Tradewinds’ purchase manager, the president of BGT issued a quote for certain parts. In the “REMARKS” section, toward the bottom of the quote, was this language: “ALL QUOTATIONS, INVOICES AND ORDERS ARE SUBJECT TO THE ATTACHED BGT TERMS AND CONDITIONS.” No terms and conditions were attached to the quote.

Tradewinds’ purchase manager reviewed the quote but did not request a copy of the “terms and conditions,” because the reference to it in the quote was to “something that didn’t exist.” Tradewinds responded with a purchase order for the parts. BGT sent back an invoice. At the top of the invoice, in a section containing general information for the transaction, was the following notation: “TERMS: SEE REMARKS.” In the “REMARKS” section of the invoice was the following:

ALL ORDERS ARE SUBJECT TO ATTACHED BGT TERMS AND CONDITIONS.
TERMS: 50% DUE UPON READINESS TO SHIP, 25% DUE NET 30, 25% DUE NET 60. ANY ITEMS DEEMED TO BE NOT REPAIRABLE SHALL BE DEDUCTED UPON RETURN TO BGT.
PER ATTACHED “TRADEWINDS PO P35001594 S/N MANIFEST.”

No terms and conditions were attached. Tradewinds’ representatives did not ask to see them.

Tradewinds picked the parts up at BGT. Later, Tradewinds discovered that BGT had allegedly misrepresented the condition of the parts. Tradewinds tried to work out the dispute with BGT, but failed. It did not make the final payment.

In October 2008, BGT sent Tradewinds an e-mail to which it attached a letter demanding the final payment, as well as some “terms and conditions.” Section 19 of BGT’s five-page General Terms & Conditions of Sale of Equipment provided, “Any controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by arbitration in accordance with the commercial rules of the American Arbitration Association.... ” This was the first time anyone at Trade-winds had seen any of BGT’s terms and conditions.

Without making any factual findings, the circuit court denied BGT’s motion to compel arbitration and granted Tradewinds’ motion to stay arbitration.

This court reviews the trial court’s order denying arbitration de novo. See Powertel, Inc. v. Bexley, 743 So.2d 570, 573 (Fla. 1st DCA 1999). “[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (citation omitted). Here, BGT and Tradewinds dispute only the first element — whether a valid agreement to arbitrate exists between them.

The central issue is whether BGT’s quote and purchase order incorporated by reference its “TERMS AND CONDITIONS.”

To incorporate by reference a collateral document, the incorporating document must (1) specifically provide “ ‘that it is subject to the incorporated [collateral] document’ ” and (2) the collateral document to be incorporated must be “ ‘sufficiently described or referred to in the incorporating agreement’ ” so that the intent of the parties may be ascertained. Kantner v. Boutin, 624 So.2d 779, 781 (Fla. 4th DCA 1993) (quoting Hurwitz v. C.G.J. Corp., 168 So.2d 84, 87 (Fla. 3d DCA 1964)). The Supreme Court set forth the second requirement for incorporation by reference in OBS Co. v. Pace Construction Corp., 558 So.2d 404, 406 (Fla.1990): “It is a generally accepted rule of contract law that, where a writing expressly refers to and sufficiently describes another document, that other document, or so much of it as is referred to, is to be interpreted as part of the writing.”

The quote and purchase order in this case did not sufficiently describe the “terms and conditions,” so it cannot objectively be said that Tradewinds agreed to be bound by them. Additionally, BGT failed to provide the terms and conditions during the negotiating process; thus, the sales contract was formed without Trade-winds ever having seen them. The “terms and conditions” were not provided until a contract dispute had arisen. A reasonable view of this “contract” is that BGT, as the drafter of the documents, did not intend to incorporate any “terms and conditions” where it did not provide a specific description of them or attach them to the quote and purchase order.

Here, there was less description of the “terms and conditions” than there was of the document sought to be incorporated in Affinity Internet, Inc. v. Consolidated Credit Counseling Services, Inc., 920 So.2d 1286, 1288 (Fla. 4th DCA 2006), where we found a description of a collateral document insufficient to create an incorporation of it by reference. In Affinity, a computer service contract stated that the contract was “subject to all of [the service provider’s] terms, conditions, user and acceptable use policies located” at its website. Id. at 1287. We held that the reference to the website as the repository of the collateral documents insufficiently described them so that they could be interpreted as a part of the service contract. Id. at 1288; see also Gustavsson v. Washington Mutual Bank, 850 So.2d 570 (Fla. 4th DCA 2003) (reversing where the bank’s signature card said “see reverse side for important information,” and the reverse side was blank, so it “did not refer to arbitration, or expressly refer and sufficiently describe another document containing an arbitration agreement”). Because the quote and purchase order in this case provide no information at all about where the “terms and conditions” might be located, the description is even more nebulous than the description in Affinity.

By contrast, cases finding sufficient description of a collateral document to create an incorporation by reference involve more detailed descriptions of the collateral document, or where the document could be found, than are present in this case. For example, in Kaye v. Macari Building & Design, Inc., 967 So.2d 1112, 1113 (Fla. 4th DCA 2007), the collateral document was described as “The American Institute of Architects Documents No. A-201, April 1997 Edition,” an industry standard. And in Avatar Properties, Inc. v. Greetham, 27 So.3d 764, 766 (Fla. 2d DCA 2010), although a home warranty was not attached to a purchase and sale agreement, “the agreement state[d] that the warranty was available for examination at [the seller’s] offices and, that upon request the warranty would be attached as an exhibit to the purchase and sale agreement.” The buyers initialed that paragraph, signaling an intent that the warranty be incorporated into the main contract. Id. at 766-67. During the formation of the contract in this case, Tradewinds expressed no similar intent to incorporate the “terms and conditions.” See also Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631-32 (Fla. 1st DCA 1999) (holding that purchase contract for computer software referred to license agreement, indicated where it could be obtained, and provided it with software sealed with the warning, “By opening this packet, you indicate your acceptance of [seller’s] license agreement.”).

For these reasons, we affirm the order of the circuit court denying the motion to compel arbitration.

HAZOURI and CIKLIN, JJ., concur.

      . Whether the terms and conditions were in fact attached to the quote or subsequent documents was hotly contested. Based on the circuit court’s ruling, we are required to assume that BGT did not provide the terms and conditions early in the negotiating process. The circuit court's order ruled on the motions without making any factual findings.


text:
    Erika B. MUDAFORT, Appellant, v. Jesse T. LEE, Appellee.
    No. 4D10-1766.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    J. Garry Rooney of Rooney & Rooney, P.A., Vero Beach, for appellant.
    Margaret M. Anderson, Vero Beach, for appellee.
   PER CURIAM.

Erika Mudafort, the former wife, appeals the trial court’s amended final judgment of dissolution of marriage. She raises three issues on appeal: (1) whether the trial court erred in considering certain relocation factors, which we affirm without further comment; (2) whether the trial court erred in not considering the factors laid out in Mancuso v. Mancuso, 789 So.2d 1249 (Fla. 4th DCA 2001), when it ordered equal time-sharing; and (3) whether the trial court erred in imputing income to the former wife for child support purposes. We find that the trial court did not err in not considering the Mancuso factors because the relevant family law statutes have abrogated any presumption against equal time-sharing. However, we agree with the former wife that the trial court erred in imputing income to her for child support purposes and therefore reverse and remand.

The parties were married on November 4, 2006 in Vero Beach, Florida, with a minor child born of the marriage. Before the petition for dissolution was filed, however, the parties agreed that the former wife could move to Bradenton, Florida, while Jesse Lee, the former husband, remained in Vero Beach. However, that arrangement proved untenable and the parties entered into a temporary mediated agreement which provided that the parties would essentially split custody of the minor child until the dissolution was finalized, meeting halfway between the Sarasota-Bradenton area and Vero Beach.

In its amended final judgment, the trial court provided for equal time-sharing and ordered the former wife to pay $128 per month to the former husband in child support, based on the trial court’s imputation of income to the former wife. The former wife appeals.

In Mancuso, this court found that the enactment in 1997 of section 61.121, Florida Statutes (1997), did not abrogate the longstanding presumption that rotating custody was not in the best interest of the child. 789 So.2d at 1250; see also Mandell v. Mandell, 741 So.2d 617 (Fla. 2d DCA 1999) (finding that “[i]f ... the legislature sought to set aside the presumption against rotating custody [by the enactment of section 61.121], it failed”). We then reviewed a list of factors that trial courts should consider when determining whether the circumstances overcome the presumption against rotating custody. Id. Because the final judgment of dissolution in the instant case created an equal time-sharing arrangement but did not indicate consideration of the Mancuso factors, the former wife argues that the trial court did not overcome the presumption against equal time-sharing. We disagree.

The Legislature has made important statutory changes in the past few years which we find have abrogated any judicial presumption against equal time-sharing. First, effective October 1, 2008, the Legislature repealed section 61.121. See Ch. 2008-61, § 6, at 792, Laws of Fla. Second, and more importantly, in 2009 the Legislature revised section 61.13(2)(e)(l), to state, in part, “There is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” See Ch. 2009-180, § 8, at 1858, Laws of Fla. Therefore, based on a plain reading of the statutes, there is no longer a presumption against equal time-sharing. As such, it is no longer necessary for trial courts to consider any of the factors enunciated in Mancuso because there is no presumption to overcome. Thus, we conclude that the trial court did not err in crafting an equal time-sharing arrangement.

We now turn to the issue of the trial court’s imputation of income to the former wife. “In considering the imputation of income, the standard of review is whether the trial court’s determination is supported by competent, substantial evidence.” Zarycki-Weig v. Weig, 25 So.3d 573, 575 (Fla. 4th DCA 2009).

Section 61.30(2)(b), Florida Statutes (2009), governs the imputation of income for child support purposes:

Monthly income shall be imputed to an unemployed or underemployed parent if such unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control.

§ 61.30(2)(b), Fla. Stat. (2009).

In order to adhere to this statute, the courts have laid out a two-step process to properly impute income to a party:

First, the trial court must conclude that the termination of income was voluntary; second, the court must determine whether any subsequent underemployment “resulted from the spouse’s pursuit of his own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.”

Rodriguez v. Medero, 17 So.3d 867, 870 (Fla. 4th DCA 2009) (quoting Konsoulas v. Konsoulas, 904 So.2d 440, 444 (Fla. 4th DCA 2005)). Additionally, the burden of proof is on the party seeking to impute income to the other party. Id. at 870.

As to the first prong, the voluntariness of the termination of prior employment, the former wife concedes that she voluntarily left her employment in Vero Beach when she chose to move to Bradenton. The real issue here is whether the former wife is underemployed at all. The trial court found that the former wife was underemployed in Sarasota. We disagree.

At the final hearing, the former wife testified that before the parties separated she was employed at a Vero Beach salon as a salon assistant, where she “sometimes” made $500 per week during season, “sometimes even more.” However, the former wife clearly testified that her work at the Vero Beach salon was “super, super seasonal” and that “during the summer I’d make hardly anything. I may make $200, 300, 400.” The former wife also testified that she was employed as an independent contractor at the Vero Beach salon and as a consequence she had to pay more in taxes than an ordinary employee would.

The former wife further testified that at the salon in Sarasota, she was employed as a full stylist with “[her] own chair,” making a guaranteed $360 per week throughout the year, with the possibility of a 40% commission of whatever exceeds her base pay of $360 per week. She added that she was working toward building her clientele, which “takes time.”

No evidence was presented to rebut the former wife’s testimony. Nonetheless, the trial court imputed income of $500 per week on the former wife in the final judgment of dissolution. As the former wife’s testimony was that she previously made at most $500 per week during season, and not year round, the trial court’s imputation of $500 per week of income was not supported by competent substantial evidence and the former husband, as the party seeking the imputation of income, did not meet his burden.

Therefore, this matter is reversed and the remanded to the trial court with instructions to determine the former wife’s actual income without any imputation.

Reversed in part and affirmed in part.

GROSS, C.J., HAZOURI and CIKLIN, JJ., concur.

      . In the past, "equal time-sharing” went by another name: "rotating custody” (and sometimes "split custody”). Rotating custody was a parenting arrangement whereby neither parent was designated as the primary residential parent, and the minor child split time evenly between both parents. Of course, with the overhaul to the family law statutes in 2009, the concept of "custody” was replaced with "time-sharing,” where neither parent is designated as the primary residential parent; both parents must comply with a parenting plan that sets out in detail each parent’s responsibilities and involvement in the minor child’s life. For ease of reference, we refer to what was previously known as "rotating custody” as "equal time-sharing” unless indicated otherwise.

      . Section 61.121, Florida Statutes (1997), stated simply: "The court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.”

      . The former wife testified that she moved to Bradenton but works in Sarasota.


author: CIKLIN, J.

text:
    Milton ALLEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2618.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Siobhan Helene Shea, Palm Beach, for appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

This is an appeal by Milton Allen from a judgment and conviction on two counts of armed sexual battery, and one count each of armed kidnapping, armed burglary, and aggravated assault. Allen argues that the trial court erred in allowing, over objection, expert testimony regarding the statistical significance of Allen’s DNA profile matching that of DNA samples taken from the scene of the crime without first confirming that the expert had sufficient knowledge of the database and the statistical method used. We agree and, consistent with Gibson v. State, 915 So.2d 199 (Fla. 4th DCA 2005), we reverse for a limited evidentiary hearing on the qualifications of the state’s expert to testify as to the statistical significance of the DNA profile matches.

At trial, the state presented the testimony of Heather Whitten, a DNA specialist in the forensic DNA unit of the Broward County Sheriffs Office (BSO) crime laboratory, as an expert in forensic serology and DNA analysis. Ms. Whitten testified that she had a master’s degree in pharmaceutical science from the University of Florida with an emphasis in forensic DNA and serology and that she had been working in the field of DNA analysis for approximately ten years. She further stated that she had previously testified in court well over two dozen times, and that she had been declared an expert in DNA analysis each time. With regard to her qualifications, Ms. Whitten testified that she was a qualified DNA analyst, and that to maintain her designation she had to pass proficiency tests provided by an outside vendor twice a year.

Next, Ms. Whitten explained that in forensic DNA analysis, she takes a DNA profile from a sample taken from a crime scene and compares it to samples of DNA taken from known individuals in the case. If two profiles are consistent, she considers it to be a match, making it possible that the individual’s DNA was found at the crime scene. She testified that her lab uses the polymerase chain reaction (PCR) process to identify DNA. According to Ms. Whitten, PCR testing is generally accepted in the scientific community and every lab in the country, including the FBI laboratory, uses the PCR process. Ms. Whit-ten also testified that the BSO crime lab was accredited by both the American Society of Crime Lab Directors and the International Accreditation Organization.

Ms. Whitten then began to testify regarding the report that she had generated from her analysis in this case. She explained what samples she had received for testing and that she had to first perform serological testing because she was looking for blood or semen, and then moved on to DNA testing. She then stated that she found only the victim’s DNA in samples taken from inside the victim’s vagina. She did find, however, DNA that matched Allen’s profile on a sample taken from the victim’s outer vaginal area.

As Ms. Whitten was about to testify regarding the statistical significance of this sample matching Allen’s DNA profile, defense counsel objected on the grounds that the witness was not qualified as an expert in statistical probability. The trial court then permitted defense counsel to conduct a voir dire examination of the witness. Defense counsel asked Ms. Whitten about her training in statistical probability concerning DNA population frequencies. Ms. Whitten testified that she had statistics courses in college, as well as on-site training as part of her qualifications to become an analyst. She also testified that as part of her proficiency testing, she had to report on the statistical significance of matches. She acknowledged that she did not have any degree in statistics and had written no articles on the subject. After defense counsel finished questioning her and in response to a question from the trial judge, Ms. Whitten affirmed that the calculation she used in this case was the same that she regularly used. The state did not ask any questions. After questioning the witness, defense counsel maintained his objection, but the trial court overruled it.

Ms. Whitten then testified that the probability that the DNA profile from the sample which was consistent with Allen’s DNA profile would also match that of an unrelated individual in the population was one in twenty billion. In other words, according to Ms. Whitten’s testimony, it was almost certain that it was Allen’s DNA which was found on the victim’s outer vaginal area. The witness offered no explanation as to how she made this calculation.

As our supreme court has noted, “DNA testing requires a two-step process, one biochemical and the other statistical. The first step uses principles of molecular biology and chemistry to determine that two DNA samples look alike. The second step uses statistics to estimate the frequency of the profile in the population.” Butler v. State, 842 So.2d 817, 827 (Fla. 2003). Both steps require use of scientific methods that must satisfy the Frye test. See id. at 827-28.

Here, Allen challenges the second step of the DNA testing process, contending that the state’s expert was not properly qualified to testify as to the statistical significance of the DNA matches. A properly qualified expert on population frequency must be able to show that her testimony regarding the statistical methodology used and the database employed will be “based on established scientific principles in which she was trained.” See Everett v. State, 893 So.2d 1278, 1281-82 (Fla.2004). The expert, however, does not have to be a statistician or mathematician to testify as to the statistical results. See Darling v. State, 808 So.2d 145, 158 (Fla.2002); Gibson, 915 So.2d at 201. “Furthermore, admissibility is not contingent upon the expert having compiled the database himself. Instead, ‘a sufficient knowledge of the authorities pertinent to the database is an adequate basis on which to render an opinion.’ ” Branch v. State, 952 So.2d 470, 483 (Fla.2006) (internal citation omitted) (quoting Butler, 842 So.2d at 828); Murray v. State, 692 So.2d 157, 164 (Fla.1997) (“[T]his expert must, at the very least, demonstrate a sufficient knowledge of the database grounded in the study of authoritative sources.”).

Where the trial court permits an expert to testify without first requiring the expert to demonstrate a “sufficient knowledge of the database grounded in the study of authoritative sources,” appellate courts have consistently remanded for limited evi-dentiary hearings. See, e.g., Gibson, 915 So.2d at 202; Perdomo v. State, 829 So.2d 280, 284 (Fla. 3d DCA 2002); Hudson v. State, 820 So.2d 1070, 1072-74 (Fla. 5th DCA 2002); Miles v. State, 694 So.2d 151, 158 (Fla. 4th DCA 1997).

Ms. Whitten, the state’s expert witness here, never testified (either during the voir dire examination or during her direct examination) as to the database or methodology she used to calculate the statistical significance of Allen’s DNA profile matching that of samples taken from the crime scene. The deficiency in her testimony exceeds that in Gibson, Perdomo, Hudson, and Miles, where the appellate courts all found that the cases had to be remanded for limited evidentiary hearings. The following language from Gibson is applicable here:

In this case, like Perdomo, [the witness] never identified, much less displayed “sufficient knowledge of’ the database or method she used for the statistical component of her opinion. At no point did [the witness] explain what method she used, nor did she demonstrate any knowledge of the authorities pertinent to the database....
Based on Perdomo and Hudson, this matter must be remanded for a limited evidentiary hearing to determine whether the expert had sufficient knowledge of the authoritative sources to present the statistical evidence.

Gibson, 915 So.2d at 202.

The state argues that this case is distinguishable from Gibson because the trial court permitted defense counsel to perform a voir dire examination of Ms. Whitten, and that defense counsel never questioned her about her knowledge and experience regarding the methodology and database used. This argument, however, is without merit. Defense counsel properly objected on the grounds that the witness had “not been qualified as an expert in statistical probability.” At this point, it was the state’s burden to prove that the expert was qualified, and not Allen’s burden to show that she was not. See Brim v. State, 695 So.2d 268, 272 (Fla.1997); Hudson v. State, 844 So.2d 762, 763 (Fla. 5th DCA 2003) (“[T]he state must prove by a preponderance of evidence that an expert testifying about DNA statistical and population genetics analysis must demonstrate ‘sufficient knowledge of the database grounded in the study of authoritative sources.’ ” (quoting Murray, 692 So.2d at 164)).

Because the record does not reveal the statistical methodology used to calculate the DNA population frequencies in this case, or Ms. Whitten’s qualifications to present this evidence, we reverse Allen’s conviction and sentence and remand this case to the trial court for a limited eviden-tiary hearing similar to the ones ordered in Gibson and Miles. On remand, the trial court is to (1) assess Ms. Whitten’s competence to present the statistical evidence; and (2) clarify the exact methodology and database used for her calculations. If requested and depending on the methodology and database used, the trial court should also conduct a Frye hearing to determine the general acceptance of the employed statistical techniques and database. See Roberts v. State, 841 So.2d 558, 560 (Fla. 4th DCA 2003). If following a hearing, the court determines that there was a sufficient basis for admitting the DNA evidence presented at trial, the court should reinstate the conviction and sentence. If the court determines, however, that the DNA evidence was not presented by a qualified witness, then it should grant a new trial. Our remand is limited solely to this issue and we direct that the hearing be held as expeditiously as possible.

We have carefully considered the remaining issues raised by Allen, but find no reversible error beyond that discussed in this opinion. Accordingly, this case is remanded for further proceedings consistent with this decision.

Reversed and remanded for a limited evidentiary hearing.

GROSS, C.J., and HAZOURI, J., concur.

      . Under Frye v. U.S., 293 F. 1013, 1014 (D.C.Cir.1923), before admitting into evidence the testimony of an expert witness concerning a new scientific principle, "a trial court must determine (1) whether such expert testimony would assist the jury in understanding the evidence or in deciding a fact in issue; (2) whether such testimony is based on a scientific principle which has gained general acceptance in that particular scientific community; and (3) whether the expert witness is sufficiently qualified to render an opinion on the subject.” Murray v. State, 692 So.2d 157, 161 (Fla.1997).