source: Caselaw Access Project

author: NORTHCUTT, Judge.

license: Public Domain

text:
    Frank CANNINO, Appellant, v. PROGRESSIVE EXPRESS INSURANCE CO., Appellee.
    No. 2D09-1831.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2010.
    Roy L. Glass of Law Offices of Roy L. Glass, P.A., St. Petersburg, for Appellant.
    Valeria Hendricks of Harmon, Woods, Parker, Hendricks & Abrunzo, P.A., Tampa, for Appellee.
   NORTHCUTT, Judge.

The county court granted summary judgment in favor of Progressive Express Insurance Co. in Frank Cannino’s suit to obtain payment of no-fault insurance benefits. We have accepted this appeal based on the county court’s certification that its judgment is of great public importance. See Fla. R. App. P. 9.030(b)(4)(A). The issue identified by the court concerns the interplay between a workers’ compensation lien on the injured insured’s recovery from a third-party tortfeasor and the insured’s right to recover no-fault insurance benefits for the same injury. We conclude that the court incorrectly resolved the issue, and we reverse.

In 2004, Cannino was injured in an automobile accident while in the course of his employment by West Coast Fence of Tampa. He received workers’ compensation benefits from West Coast Fence’s carrier, Pinnacle Benefits, Inc. Cannino had a personal motor vehicle insurance policy issued by Progressive, but he did not seek immediate payment of his personal injury protection (PIP) benefits under that policy.

Cannino reached a policy limits settlement with the third-party tortfeasor for $100,000. Thereafter he entered into a final settlement with the workers’ compensation carrier. Under the settlement, Cannino resigned from West Coast Fence and released his employer and Pinnacle from any and all claims related to workers’ compensation benefits or otherwise; the release specifically provided that Cannino would be responsible for his future medical care and treatment. In exchange, Pinnacle paid Cannino $20,000 and waived its statutory lien on Cannino’s recovery from the third-party tortfeasor. The settlement further recited that Pinnacle had paid $39,212 in indemnity and medical benefits to date; that the full value of Cannino’s personal injury claim was estimated to be $200,000; and that Cannino’s net recovery in his settlement with the tortfeasor was approximately $66,428, such that Pinnacle’s lien would have been $12,940 for past benefits paid and a twenty-seven percent offset for future benefits up to an amount equal to Cannino’s net recovery. Pinnacle acknowledged in the settlement agreement that Cannino “has the right to reimbursement of the workers’ comp lien from his PIP insurer and nothing herein is intended to, or does, operate to release, discharge or otherwise satisfy [Cannino’s] rights, claims and actions relative to his PIP benefits.”

Cannino sought payment of his PIP benefits from Progressive, and he filed suit in county court when they were not forthcoming. Progressive maintained that payment was not due because it was entitled to a credit for the workers’ compensation benefits and Cannino never eliminated the credit by paying out-of-pocket to satisfy the workers’ compensation lien. Progressive argued that a contrary holding would give Cannino an impermissible windfall. The county court agreed with Progressive and granted it a summary judgment.

The Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes (2004), requires motorists to maintain a minimum of $10,000 in insurance for PIP benefits to cover loss sustained as a result of bodily injury, sickness, or death related to motor vehicles. § 627.736(1). The insurance generally covers eighty percent of medical and related expenses and sixty percent of wage loss. Id. An injured party has no right to recover tort damages for PIP benefits that are paid or payable, and a PIP insurer is not entitled to a lien on the injured party’s tort recovery. § 627.736(3). PIP benefits are primary, except that workers’ compensation benefits “shall be credited against” PIP benefits. § 627.736(4).

The Workers’ Compensation Law, chapter 440, Florida Statutes (2004), requires employers to maintain coverage for employees who suffer accidental, compensable injuries or death arising out of work performed in the course and scope of them employment. § 440.09. Like PIP insurance, workers’ compensation insurance covers medical bills and wage loss, albeit at different levels, §§ 440.12, .13, and it includes disability compensation, § 440.15. Unlike the PIP statute, however, the workers’ compensation law establishes a lien upon any judgment or settlement recovered by the injured employee from a third-party tortfeasor to the extent of workers’ compensation benefits paid. § 440.39(3)(a). The lien is reduced pro rata if the employee demonstrates that the net recovery from the third-party is less than the full value of the employee’s damages. Id.

As mentioned, workers’ compensation benefits are credited against PIP benefits. § 627.736(4). The purpose of the statutory credit is to preclude a duplication of recovery. See S.C. Ins. Co. v. Arnold, 467 So.2d 324, 325 (Fla. 2d DCA 1985); cf. Pate v. Renfroe, 715 So.2d 1094, 1099 (Fla. 1st DCA 1998) (“The purpose of a set-off is to avoid duplication of benefits.”). But when the injured employee has recovered from a third-party tortfeasor, the employee “is obligated to reimburse the workers’ compensation carrier. At that point, the plaintiff is entitled to receive additional benefits from the PIP carrier because the credit for workers’ compensation no longer exists.” Fortune Ins. Co. v. McGhee, 571 So.2d 546, 547 (Fla. 2d DCA 1990).

Thus, when Cannino recovered from the third-party tortfeasor, he became obligated to reimburse the workers’ compensation carrier for the benefits it had paid. At that point, he was entitled to PIP benefits because he was obliged to pay for that which the PIP carrier would have been responsible under the insurance contract. In other words, vis-á-vis his entitlement to PIP benefits, Cannino was in the same position he would have occupied if he had never received the workers’ compensation benefits. See Arnold, 467 So.2d at 325. We reject Progressive’s assertion that Cannino was required to directly satisfy the workers’ compensation lien by paying out-of-pocket in order to claim his PIP benefits. This would improperly place form over substance. Cannino effectively did pay from his pocket by giving consideration, i.e., giving up his right to seek future workers’ compensation benefits in exchange for a negotiated cash payment and the waiver of the lien, when settling with the workers’ compensation carrier.

Reversed and remanded.

VILLANTI and MORRIS, JJ„ Concur.


author: DAMOORGIAN, J.

text:
    Jarrod Thomas CHRISTIE, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-286.
    District Court of Appeal of Florida, Fourth District.
    Dec. 29, 2010.
    Rehearing Denied May 6, 2011.
    Carey Haughwout, Public Defender, and Richard B. Greene, Assistant Public Defender, West Palm Beach, and Jarrod Thomas Christie, Perry, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Helen C. Hvizd, Assistant Attorney General, West Palm Beach, for ap-pellee.
   DAMOORGIAN, J.

We affirm Christie’s judgment and sentence. We remand for the trial court to correct the judgment to reflect that Christie was tried and found guilty by a jury.

Affirmed and Remanded to Correct the Judgment.

STEVENSON and HAZOURI, JJ., concur.


author: PER CURIAM. PER CURIAM.

text:
    Gabriel Manuel VELEZ-PIZZINI, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4342.
    District Court of Appeal of Florida, Fifth District.
    Jan. 28, 2011.
    Opinion Granting Rehearing in Part April 1, 2011.
    Fritz J. Scheller, of Fritz Scheller, P.L., Winter Park, and Terrence E. Kehoe, of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Gabriel Velez-Pizzini appeals his convictions for lewd and lascivious molestation of a child, lewd and lascivious solicitation of a child and attempted evidence tampering. We find no reversible error with respect to any issue affecting the convictions, and affirm them without further discussion. We agree with appellant, however, that the trial court erred in assessing “First Step Program” costs as a written (but not oral) special condition of probation.

Section 948.039, Florida Statutes (2009), mandates that trial courts impose special conditions of probation by oral pronouncement and written order. Such special conditions include requirements that the offender “[p]ay not more than $1 per month during the term of probation or community control to a nonprofit organization established for the sole purpose of supplementing the rehabilitative efforts of the Department of Corrections.” § 948.039(2), Fla. Stat. (2009). It appears that the First Step of the Fifth Judicial Circuit, Inc., is such a program. These fees used to be included as standard conditions under section 948.03(1), Florida Statutes (1996), but in 2004, were made special conditions under section 948.039, Florida Statutes. Ch. 2004-373, § 26, Laws of Fla. Accordingly, these costs could only be imposed if orally pronounced, and must be stricken. See, e.g., Justice v. State, 674 So.2d 123 (Fla.1996) (holding that where a trial court fails to orally pronounce certain special conditions of probation which later appear in the written sentence order, the court on remand must strike the unannounced conditions and cannot reimpose them upon resentencing).

AFFIRMED; REMANDED WITH DIRECTIONS THAT FIRST STEP PROGRAM COSTS BE STRICKEN.

GRIFFIN, ORFINGER, and LAWSON, JJ., concur.

ON MOTION FOR REHEARING AND REHEARING EN BANC

PER CURIAM.

We grant the State’s motion for rehearing and withdraw that portion of our prior opinion of January 28, 2011, which erroneously remanded with directions to strike the special probation condition of First Step Program costs. Although the trial court did not orally announce this condition at sentencing, the appellant raised this procedural argument in a timely motion to correct sentencing error, which adequately protected his procedural due process rights. Grubb v. State, 922 So.2d 1002, 1004 (Fla. 5th DCA 2006) (en banc). Because the appellant did not raise a substantive objection to this unpronounced, but otherwise unobjectionable special condition, it need not be stricken. Id.; Ladson v. State, 955 So.2d 612, 613 (Fla. 2d DCA 2007) (en banc). Accordingly, we affirm appellant’s judgment and sentence in full. In light of the above, we deny the State’s motion for rehearing en banc as moot.

AFFIRMED.

GRIFFIN, ORFINGER, and LAWSON, JJ., concur.

      . This issue was raised before the trial court in a timely motion to correct sentencing errors.


author: PER CURIAM.

text:
    David Bernard ROLLER, Jr., Appellant, v. Tareylyn A. CRIPE-ROLLER, Appellee.
    No. 1D09-3281.
    District Court of Appeal of Florida, First District.
    Jan. 28, 2011.
    Rehearing Denied March 30, 2011.
    David Bernard Roller, Jr., pro se, Appellant.
    No appearance for Appellee.
   PER CURIAM.

The appellant brought this appeal from an interlocutory order granting opposing counsel’s motion to withdraw. This court lacks appellate jurisdiction to review the order. See Fla. R.App. P. 9.030(b)(1); Ward v. State, 753 So.2d 705 (Fla. 1st DCA 2000); Becker & Poliakoff v. King, 642 So.2d 821 (Fla. 4th DCA 1994). This dismissal is without prejudice to the appellant’s right to raise the issue in a timely appeal from the final order entered in this case. See, e.g., Scott v. State, 991 So.2d 971, 977 (Fla. 1st DCA 2008); Buscemi v. 6060 Realty Carp., 654 So.2d 197 (Fla. 3d DCA 1995).

DISMISSED.

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


author: ROBERTS, J.

text:
    COMMONWEALTH LAND TITLE INSURANCE COMPANY, Appellant, v. Kenneth E. HIGGINS and Deete Higgins, on Behalf of Themselves and All Others Similarly Situated, Appellees. First American Title Insurance Company, Appellant, v. James V. Raffone and Patricia Raffone, on Behalf of Themselves and All Others Similarly Situated, Appellees.
    Nos. 1D10-2139, 1D10-2114.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Rehearing Denied March 30, 2011.

      Sylvia Walbolt of Carlton Fields, Tallahassee; Marty J. Solomon, Mark A. Brown, and Joseph Hagedorn Lang, Jr., Tampa for Appellant Commonwealth Land Title Insurance Company.
    John S. Mills of The Mills Firm, P.A., Jacksonville; P. Scott Russell of P. Scott Russell, P.A., Jacksonville; Jeffrey M. Liggio of Liggio, Benrubi & Williams, West Palm Beach; and Stanley Grossman of Pomerantz Huadek Block Grossman & Gross, New York, NY, for Appellees Kenneth E. Higgins and Deete Higgins.
    Arthur J. England, Jr., Greenberg Trau-rig, P.A., Miami; Reed W. Grimm and Rhonda B. Boggess of Taylor Day Currie Boyd Johnson, Jacksonville; Charles A. Newman of Sonnenschein Nath & Rosen-thal, LLP, St. Louis, MO; Thomas R. Tatum of Brinkley, McNerney, Morgan, Solomon & Tatum, Fort Lauderdale; and Douglas W. King of Brayn Cave LLP, St. Louis, MO., for Appellant First American Title Insurance Company.
    John S. Mills of The Mills Firm, P.A., Jacksonville; P. Scott Russell of P. Scott Russell, P.A., Jacksonville; and Robert J. Axelrod of Pomerantz Haudek, Block, Grossman & Gross, New York, NY, for Appellees James V. Raffone and Patricia Raffone.
   ROBERTS, J.

These appeals arise from two virtually identical non-final orders from the trial court granting the appellees’ motions for class certification. As the appeals raise the same issue regarding the propriety of class certification, they have been consolidated for disposition in this opinion.

The appellants are Florida licensed title insurance underwriters. The appellees are homeowners who sued the appellants on their own behalf and on behalf of a putative class of homeowners, alleging that they were not provided a discount title insurance rate, known as the “reissue rate,” for which they may have been eligible when they refinanced their homes. Under Florida law, “provided a previous owner’s policy was issued insuring the seller or the mortgagor in the current transaction and that both the reissuing agent and the reissuing underwriter retain for their respective files copies of the prior owner’s policy,” the reissue rate shall apply to “mortgage policies issued on refinancing of property insured by an original owner’s policy which insured the title of the current mortgagor.” § 627.7825(2), Fla. Stat.; Fla. Admin. Code r. 690-186.003(2).

In each case, the appellees moved for certification of a class of persons who were allegedly overcharged for title insurance in connection with refinancing of real property transactions. To support certification, they argued that the common and predominate issue was whether the appellants had a non-delegable duty to price title insurance premiums in accordance with Florida law. The appellants opposed certification and primarily argued that the trial court would be overwhelmed by the individualized nature of the issues, including whether each class member actually presented a copy of his or her prior owner’s policy and whether the appellants or their agents notified the refinancing borrower about the availability of the reissue rate. After evi-dentiary hearings, the trial court agreed that the appellees’ common question predominated and issued orders certifying the same class under Florida Civil Procedure Rule 1.220(b)(3) in each case. The classes were defined as follows:

All persons or entities in Florida (excluding governmental entities, Defendant and its employees, agents, present and former parents, subsidiaries, and affiliates) who, from July 1, 1999 to the date of this Order, paid a title insurance premium to Defendant in mortgage refinancing transactions in an amount in excess of that allowed by Florida law as set forth in Section 627.7825 of the Florida Insurance Code, or 690-186.003 of the Florida Administrative Code.

On appeal, the appellants do not dispute that they had a duty to price policies in accordance with Florida law. Rather, they argue that the trial court erred in certifying the respective classes because individual issues overwhelm and defeat the predominance and superiority requirements of rule 1.220(b)(3). Because we believe the trial court did not err in allowing the actions to proceed on behalf of the defined classes, we affirm.

We review class certification orders for abuse of discretion. See Seven Hills, Inc. v. Bentley, 848 So.2d 345, 352 (Fla. 1st DCA 2003). Doubts about certification should be resolved in favor of certification, particularly in the early stages of litigation. See Sears Home Improvement Prods., Inc. v. Porterfield, 949 So.2d 318, 319 (Fla. 1st DCA 2007).

Class actions are governed by rule 1.220 and the movant for class certification bears the burden of proving all four of the requirements of rule 1.220(a) (numerosity, commonality, typicality, and adequacy) as well as one of the three subdivisions of rule 1.220(b). See Earnest v. Amoco Oil Co., 859 So.2d 1255, 1257-58 (Fla. 1st DCA 2003). Certification under rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members and that the class action is superior to other available methods for a fair and efficient adjudication of the controversy. The appellants here do not challenge the trial court’s findings that the requirements of rule 1.220(a) were satisfied, but rather take issue with the trial court’s predominance and superiority analysis under rule 1.220(b)(3). Ultimately, the parties dispute whether there is a common question of law that predominates over the individualized issues.

The trial court has an obligation to conduct a “rigorous analysis” of the requests for certification. See Earnest, 859 So.2d at 1258. In so doing, the trial court “may look beyond the pleadings and, without resolving disputed issues, determine how disputed issues might be addressed on a classwide basis.” Id. In considering the propriety of class certification, the trial court’s focus should be whether the requirements of rule 1.220 are met, not whether the moving party will prevail on the merits. See Rollins v. Butland, 951 So.2d 860, 868 (Fla. 2d DCA 2006). However, there is “not always a bright line between issues relating to class certification and issues relating to the merits of a claim or defense.” See Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1175 (Fla. 1st DCA 2008) (granting writ of certiorari in the instant case and holding the trial court’s precertification discovery order was unduly burdensome).

In these cases, the propriety of certification depends on the appellees receiving a favorable ruling on the substantive law issue in the merits phase. The cases turn on an interpretation of the appellants’ duty under Florida law, which must be resolved first and may be examined on a class-wide basis. The appellees advocate for an interpretation of Florida law that places the burden completely on the appellants to determine when the reissue rate applied. Under this interpretation, class adjudication would be appropriate. That is, if the duty to determine whether the reissue rate applied falls solely on the title insurance companies, then the individual practices of their agents and the circumstances of each transaction become largely irrelevant. If the common question is not resolved as suggested by the appellees, it is unlikely that the class actions will be able to proceed. That is, the individualized nature of the claims will likely predominate under an interpretation of Florida law that places any less than a complete burden on the appellants. Nonetheless, because the ap-pellees have presented a theory that, if correct, will result in common issues predominating, we find that class certification is appropriate at this stage in the proceedings.

We recognize that it is rather inefficient to proceed with the “expensive and involved steps” of class notification when resolution of the initial common question of legal duty will be only a small step forward and one that will likely be answered in summary judgment. See Ameriquest Mortgage Co. v. Scheb, 995 So.2d 573, 575 (Fla. 2d DCA 2008) (Altenbernd, J. concurring) (noting that a trial court is not prohibited from considering the basic merits of a claim before certifying a class, which, in the federal courts, has included ruling upon a motion for summary judgment pri- or to class certification). Nonetheless, in the cases as presented, the trial court did not abuse its discretion in certifying the classes. If the trial court later interprets Florida law in a manner that results in individual issues becoming predominate, then there are a number of management tools, including modification or decertification, which the trial court may employ. See Ouellette v. Wal-Mart Stores, Inc., 888 So.2d 90, 91 (Fla. 1st DCA 2004). Accordingly, we affirm the orders granting certification of the classes as defined.

PADOVANO and MARSTILLER, JJ„ Concur.

      . Section 627.7825 applied from July 1, 1999, through June 30, 2002. Rule 690-186.003, which contains identical verbiage, has applied since July 1, 2002.


text:
    James L. TATE, Jr., Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D09-6314.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Rehearing Denied March 31, 2011.
    James L. Tate, Jr., pro se, for Appellant.
    Pamela Jo Bondi, Attorney General and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Tate v. State, 32 So.3d 657 (Fla. 1st DCA 2010).

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


text:
    CITY OF FORT LAUDERDALE and Gallagher Bassett Services, Inc., Appellants, v. Frank MILLER, Appellee.
    No. 1D10-5921.
    District Court of Appeal of Florida, First District.
    Feb. 11, 2011.
    Edward Schuster and Darrel T. King of Massey, Coican, Schuster, Riedhammer & King, LLC, Fort Lauderdale, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellee.
   PER CURIAM.

Upon review of Appellee’s motion to dismiss and Appellants’ response thereto, we grant Appellee’s motion and DISMISS this appeal of an abbreviated final order. Appellants failed to request findings of fact and conclusions of law and thereby waived the right to appeal. See Bowe v. McDonald’s, 933 So.2d 71 (Fla. 1st DCA 2006); Fla. R.App. P. 9.180(b)(2); Fla. Admin. Code R. 60Q-6.119. See also § 440.25(4)(d), Fla. Stat. (2010); Byrd v. Moltech Power Sys., 928 So.2d 398 (Fla. 1st DCA 2006).

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


author: POLEN, J.

text:
    Juan Carlos PEREA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-800.
    District Court of Appeal of Florida, Fourth District.
    Feb. 16, 2011.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Juan Perea, was charged by information with lewd and lascivious battery and proceeded to jury trial. After being found guilty as charged, Perea was sentenced to ten years imprisonment.

During opening statement, defense counsel stated that Perea, who was thirty-one years old, had a consensual relationship with D.A., who was fourteen years old, and that they were in love and wanted to get married. Defense counsel also stated that Perea was from Central America, and “in Central America, a man who is 31 usually marries a young woman in her teens.”

The prosecutor, outside the presence of the jury, asked the court to inquire whether Perea agreed with defense counsel’s theory of defense, and also if Perea conceded that he had consensual sex with D.A. Defense counsel objected to the inquiry on the grounds that she stated in opening that whatever D.A. and Perea did was consensual, and not that they had consensual sexual relations or consensual vaginal intercourse. The following exchange then took place:

COURT: And this is the defense that you are agreeing with to proceed along these lines, correct?
PEREA: I really don’t agree too much, but that is the law.
COURT: Sir, I am not asking you to say whether you are guilty or not guilty ... I mean, she’s not just on some wild jag doing whatever she wants to do ... She has discussed this with you and talked about your case. Yes?
PEREA: Yes.
STATE: Judge, the one thing that I would like your honor to ask is when his attorney said in opening statement that he had a consensual sexual relationship with a 14 year-old-girl that he was aware and agrees with that position and that defense.
DEFENSE COUNSEL: Judge, I do not think that is an appropriate inquiry.
COURT: In your attorneys opening she stated that there was a consensual sexual relationship between you and the victim in this case and that it was based on a loving relationship and that you wanted to get married, correct?
PEREA: Yes.
COURT: And there was a consensual intercourse between you and the victim in this case who is 14 and because you had this loving relationship and you planned on getting married ... You have acknowledged that?
PEREA: Well, can you repeat that? COURT: When your lawyer, in opening, said that you had this loving consensual sexual relationship with the victim because you were in love and that it was your plan or that you wanted to eventually get married, that defense, you are in agreement with that, correct?
PEREA: Yes.
COURT: Okay.

Perea argues that the trial court erred in failing to make an adequate inquiry upon learning that defense counsel was conceding his guilt. Perea acknowledges that the court did make an inquiry but contends that the inquiry was insufficient because the court failed to determine whether Perea unequivocally understood the consequences of the concession.

Perea relies on Nixon v. State, 932 So.2d 1009 (Fla.2006), in which Nixon claimed ineffective assistance of counsel after his defense attorney conceded his guilt during his murder trial and focused instead on convincing the jury to spare Nixon’s life. Id. at 1014. Perea points to the Florida Supreme Court’s conclusion that defense counsel’s concession of guilt is the “functional equivalent of a guilty plea” and thus requires an affirmative, explicit acceptance of defense counsel’s strategy by the defendant. However, that conclusion was reached in the Florida Supreme Court’s earlier opinion in Nixon v. Singletary, 758 So.2d 618, 624 (Fla.2000), which was later reversed by the United States Supreme Court. Florida v. Nixon, 543 U.S. 175, 176-77, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004). In fact, the United States Supreme Court held:

The Florida Supreme Court erred in applying ... a presumption of deficient performance, as well as a presumption of prejudice; that latter presumption, we have instructed, is reserved for cases in which counsel fails meaningfully to oppose the prosecution’s case. United States v. Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). A presumption of prejudice is not in order based solely on a defendant’s failure to provide express consent to a tenable strategy counsel has adequately disclosed to and discussed with the defendant.

Id. at 178-79, 125 S.Ct. 551. The Court also determined that the Florida Supreme Court erred in holding that a defense attorney’s concession of his client’s guilt, made without the defendant’s express consent, automatically qualifies as prejudicial ineffective assistance of counsel and requires a new trial under United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984). Instead, Nixon’s claim of ineffective assistance of counsel should have been evaluated under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Finally, the Court recognized that, because Nixon had been charged with a capital crime, the gravity of the potential sentence and the trial’s two-phase structure distinguished Nixon’s case from a “run-of-the-mine trial” which might present a closer question. Id. at 190, 104 S.Ct. 2052.

Perea’s argument necessarily fails. Not only has he relied on a conclusion which was overturned by the United States Supreme Court, but his case is materially distinguishable from Nixon. Perea’s attorney did not actually concede his guilt. Defense counsel conceded the facts but never conceded the legal conclusion that Perea was guilty of the crimes charged, and thus, the trial court’s inquiry here was sufficient. We affirm without prejudice to Perea filing a rule 3.850 motion for post-conviction relief.

Affirmed.

WARNER and LEVINE, JJ„ concur.


text:
    ARROWOOD INDEMNITY COMPANY, f/k/a Royal Indemnity Company, a foreign corporation, Appellant, v. ACOSTA, INC., a Delaware corporation, and Acosta Sales, LLC f/k/a Acosta Sales Co., Inc. d/b/a Acosta Sales and Marketing Company, a Delaware limited liability corporation, Appellees.
    No. 1D10-1060.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.

      Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Alan S. Wachs, Craig D. Feiser, Michael M. Giel of Volpe, Bajalia, Wickes, Roger-son & Wachs, P.A., Jacksonville, for Appel-lees.
   PER CURIAM.

In this appeal, Arrowood Indemnity Company (“Arrowood”) raises one issue: whether the trial court erred in determining that Arrowood’s $1000 proposal for settlement did not meet the good faith requirement of the offer of judgment statute. Arrowood argues that the trial court incorrectly applied a wholly objective standard to determine the good faith of its offer, rather than looking at the subjective motivations and beliefs of the offeror. We agree and, therefore, reverse and remand for further proceedings.

In 2001, appellees, Acosta, Inc. and Acosta Sales, LLC (“Acosta”), were sued by a competitor for turnover. The turnover suit was resolved in 2001 by agreement of the parties without any formal adjudication. Acosta’s primary directors’ and officers’ liability insurance was a $10 million policy from National Union Fire Insurance Company. Acosta also purchased a $10 million policy of excess directors’ and officers’ liability insurance from the appellant, Arrowood. In its application for coverage, Acosta failed to disclose the turnover suit to Arrowood.

In 2004, Acosta was named as a defendant in an action filed by its competitor’s creditors (the underlying suit). Both National Union and Arrowood refused to defend Acosta in the underlying suit, so Acosta paid for its own defense and ultimately settled the case. In November 2006, Acosta sued Arrowood and National Union, arguing that the insurers had a duty to defend and indemnify Acosta in the underlying suit.

On September 2, 2008, Arrowood filed a motion for summary judgment, asserting several affirmative defenses, including that Acosta failed to disclose the turnover suit and that Arrowood’s duty as the excess carrier never arose because Acosta’s primary policy with National Union was not exhausted. Arrowood made an oral settlement offer of $50,000 to which Acosta responded by indicating it would accept $1 million. On October 20, 2008, Arrowood made a $1,000 offer of judgment which Acosta also rejected. The trial court entered summary judgment in favor of Arro-wood in December 2008. The final judgment, entered in May 2009, was affirmed on appeal. Acosta, Inc. v. Nat’l Union Fire Ins. Co., 39 So.3d 565 (Fla. 1st DCA 2010).

After prevailing on its motion for summary judgment in the underlying case, Arrowood moved for fees pursuant to section 768.79(7)(a), Florida Statutes, the offer of judgment statute. In denying Arro-wood’s motion, the trial court found that the offer was not made in good faith, expressly stating that it was applying “an objective standard” to determine the issue, citing two factors: the disparity between the $10 million in potential liability Arro-wood faced and the $1,000 offer of judgment, and the court’s belief that the case raised complex legal issues. At the hearing on the fee motion, the trial court stated,

I think [the] determination by the trial court [is] whether or not the offer indeed was made in good faith. While [Arrowood] has made an explanation, and it may consist [of] some subjective beliefs, I think the court has to look at it objectively to determine whether or not, in fact, there has been a good faith settlement offer.
To me in this case it’s not even close. I mean, the fact that the amount of the exposure — I know that in and of itself is not the basis to determine whether or not it is a good faith offer — ... whether or not you’re looking at 5 million, 8 million, or 1 million, an offer of $1,000 or 1500 or 25, those type[s] of offers of settlement just are not appropriate....
Well this was a case involv[ing] — maybe there are other issues, but ... this [case] had a lot of — of questionable issues that the court as well as the parties spent a lot of time [considering] ... and certainly the time and consideration was given. $1500 is just totally unreasonable, and the court finds that it was not made in good faith; therefore, I’ll deny the claim for attorney’s fees.

In its written order denying Arrowood’s motion for fees, the trial court provided,

This Court will apply an objective standard to determine whether or not the offer was made in good faith.
Based upon the amount of potential exposure to Arrowood Indemnity Company, this Court finds that the offer was not made in good faith. Furthermore, the legal issues decided at the summary judgment hearing were not clear-cut.

We find that the trial court erred by applying a wholly objective standard to determine whether Arrowood’s offer was made in good faith.

A trial court may decline to award attorney’s fees if it finds the offeror did not make its offer of judgment in good faith. § 768.79(7)(a), Fla. Stat. Whether the offeror has good faith rests on whether the offeror has a reasonable foundation on which to base the offer. City of Neptune Beach v. Smith, 740 So.2d 25, 27 (Fla. 1st DCA 1999) (citing Schmidt v. Fortner, 629 So.2d 1036 (Fla. 4th DCA 1993)). “[S]o long as the offeror has a basis in known or reasonably believed fact to conclude that the offer is justifiable, the good faith requirement has been satisfied.” Dep’t of Highway Safety & Motor Vehicles v. Weinstein, 747 So.2d 1019, 1021 (Fla. 3d DCA 1999).

In the context of a nominal offer of judgment, this court has held that where the offeror has a reasonable basis to believe that exposure to liability is minimal, a nominal offer is appropriate. Zachem v. Paradigm Properties Mgmt. Team, Inc., 867 So.2d 1263 (Fla. 1st DCA 2004); City of Neptune Beach, 740 So.2d at 27 (“[T]he obligation of good faith merely insists that the offeror have some reasonable foundation upon which to base an offer.” (quoting Schmidt, 629 So.2d at 1039)). But see Sharaby v. KLV Gems Co., Inc., 45 So.3d 560 (Fla. 4th DCA 2010) (holding that a reasonable basis for a nominal offer exists only where the undisputed record strongly indicates that offeror had no exposure in the case).

Whether the offeror has a reasonable basis to support the offer is “determined solely by the subjective motivations and beliefs of the offeror.” Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000); Weinstein, 747 So.2d at 1021. In making this determination, the trial court is not restricted to the testimony of the offeror attesting to good faith; rather, the court may properly consider objective evidence of facts and circumstances that suggest whether the offeror made the offer with subjective good faith. Gurney v. State Farm Mut. Auto. Ins. Co., 889 So.2d 97, 99 (Fla. 5th DCA 2004). Several types of objective evidence have been found relevant to a finding of good faith. See, e.g., City of Neptune Beach v. Smith, 740 So.2d 25, 27 (Fla. 1st DCA 1999) (holding that relevant objective factors include amount of each offer and potential liability offeror faced at time offer was made); Fox v. McCaw Cellular Commc’ns of Florida, Inc., 745 So.2d 330, 333 (Fla. 4th DCA 1998) (holding that the trial court may consider the totality of the whole case record when determining whether good faith was present).

Although the trial court here properly considered objective factors in assessing the reasonableness of Arrowood’s offer (ie.g., the amount of the offer, Arrowood’s potential exposure, and the complexity and closeness of the case), the court erred by not giving any consideration to Arrowood’s justification for its offer and by basing its ruling exclusively on the objective factors. Rather, the trial court was required to consider Arrowood’s explanation and then determine whether, despite consideration of the objective factors cited by the court, Arrowood had a subjectively reasonable belief on which to base its offer.

Accordingly, we reverse and remand for the trial court to apply the proper standard and provide specific findings as to whether Arrowood had a reasonable foundation upon which to base its $1000 offer of judgment.

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


text:
    Robert Lee RANDOLPH, Appellant, v. Philicia Corine RICH, Appellee.
    No. 1D10-5711.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Rehearing Denied March 31, 2011.

      Ross A. Keene, Pensacola, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Appellant, Robert Lee Randolph, seeks review of the final judgment of injunction for protection against domestic violence entered against him based upon the petition of his former wife, and current next door neighbor, Philicia Corine Rich. We reverse because the evidence presented at the hearing on the petition was legally insufficient to support the injunction.

In order for the trial court to issue an injunction for protection against domestic violence, the party seeking the injunction must establish that he or she has an objectively reasonable fear that he or she is in “imminent danger of becoming the victim of any act of domestic violence.” § 741.30(l)(a), Fla. Stat. (2010); see also Moore v. Hall, 786 So.2d 1264, 1266 (Fla. 2d DCA 2001); Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999). In evaluating these issues, the trial court must consider the behavior of the party against whom the injunction is sought in the context of the current threats and the parties’ relationship and its history. See Gustafson, 743 So.2d at 616.

Here, the focus of the petition and the evidence at the hearing was on an incident between the parties at their child’s school on August 26, 2010. On the day of the incident, Ms. Rich was involved in a conversation with the director of the after school program when Mr. Randolph arrived to pick up the parties’ child. Mr. Randolph approached the women and attempted to snatch some papers out of Ms. Rich’s hands. Mr. Randolph did not get the papers and he was told by the program director to leave the school, which he did. Although there was testimony that Mr. Randolph touched the papers that Ms. Rich was holding, there was no evidence that he physically touched her. And, although Ms. Rich testified that she felt threatened by the encounter, there was no evidence of any verbal threats made by Mr. Randolph during the incident.

This incident is insufficient to support the injunction, even when considered within the context of the parties’ relationship. At the hearing, Ms. Rich made passing reference to domestic violence occurring during the parties’ marriage, but the record does not reflect the nature or extent of the violence. Ms. Rich also testified that, since their divorce, Mr. Randolph “repeatedly” harassed her by telephone and email, but the only specific testimony on that issue concerned an August 19, 2009 voicemail and an August 25, 2010 email. Ms. Rich testified that in the voicemail, Mr. Randolph threatened to “get [her]” and “devote all of his time to getting [her].” When asked by the trial court how she interpreted the voicemail, Ms. Rich testified that Mr. Randolph had “physically gotten [her] in the past” and that she did not know what he was going to do. The email, which was addressed to both Ms. Rich and her current husband, concerned the parties’ child and did not contain any threats.

Mr. Randolph acknowledged in his testimony that the parties’ interactions are not cordial, and it is clear from the parties’ testimony that they have an unpleasant relationship. The acrimonious nature of the parties’ relationship is supported by the record, which reflects that there have been four previous petitions for domestic violence injunction filed by the parties (three by Ms. Rich and one by Mr. Randolph), all of which were dismissed. While a petitioner does not have to wait for abuse to occur in order to seek an injunction under section 741.30, Florida Statutes, see Gustafson, 743 So.2d at 616, the law requires more than general relationship problems and uncivil behavior to support the issuance of an injunction. See Gill, supra (“[Generalized threats to engage in unpleasant, but not violent, behavior are not sufficient to support the issuance of a domestic violence injunction.”); Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) (reversing domestic violence injunction where evidence merely “painted ... a typical, albeit unfortunate, picture of a domestic relationship gone awry”). Rather, the law requires that the party seeking the injunction must present sufficient evidence to establish the objective reasonableness of his or her fear that the danger of violence is “imminent.” Such evidence was lacking here.

Accordingly, we reverse the final judgment and remand with directions that the trial court vacate the injunction entered against Mr. Randolph.

REVERSED and REMANDED with directions.

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

      . Ms. Rich testified that Mr. Randolph moved into the neighboring house shortly after their divorce. Mr. Randolph testified that he owned the house where he currently lives before the parties were married. On the same day the final judgment was entered, the trial court entered a separate order amending the final judgment to ‘'recognize that the parties ... reside within 500 feet of one another and accordingly, it shall not be considered a violation of the [injunction] for either party to be physically present at their respective residences.”

      . Mr. Randolph mentioned in his testimony an incident during the parties’ marriage that resulted in a "battery charge.” However, Mr. Randolph also testified that the parties attended mediation after the incident and that he and Ms. Rich resumed marital relations for some period after the incident. The parties' marriage was dissolved in 2007, several years before the petition in this case, so this incident alone would not support the issuance of the injunction. See, e.g., Gill v. Gill, 50 So.3d 772 (Fla. 2d DCA 2010) ("[A]n isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations.”).

      . Ms. Rich testified that she called the police based upon the voicemail, but Mr. Randolph was not arrested. This incident was a year before the petition in this case.


text:
    Mack H. SULLIVAN, Jr., Appellant, v. Emily HOFF-SULLIVAN, Appellee.
    No. 1D10-3796.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Rehearing Denied March 31, 2011.
    Mack H. Sullivan, Jr., pro se, Appellant.
    Corrine A. Bylund and Barry L. Zisser of Zisser, Robison, Brown, Nowlis, Maeie-jewski & Cabrey, P.A., Jacksonville, for Appellee.
   PER CURIAM.

In this family law appeal, Appellant raises four issues. We affirm three of the issues raised without comment: that the Florida trial court failed to give full faith and credit to orders entered in Georgia; that Appellee was estopped from relitigat-ing child support enforcement in Florida; and that the trial court abused its discretion by awarding attorney’s fees. Appellant failed to preserve these issues for appellate review. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla.2005). Appellant also argues that res judicata prevented Appellee from relit-igating enforcement of their final divorce decree. We agree, and reverse.

Three children were born of the marriage. The parties were divorced in Georgia on October 10, 2002. The final divorce decree incorporated an agreement requiring Appellant to pay child support, with child support being forgiven for the first 12 months. In 2004, Appellee sought enforcement of the agreement through a contempt proceeding in Georgia, and the Georgia court set child support at $1,430.00 per month.

In 2006, Appellee and the parties’ minor children moved to Florida. Appellee filed a new contempt motion in Georgia in 2007, arguing the divorce agreement was not being properly enforced because child support was supposed to be self-modifying. According to Appellee, the agreement required Appellant to pay one-third of his yearly salary, regardless of whether his income increased or decreased. The Georgia court disagreed with Appellee’s interpretation, upheld the $1,480.00 per month support amount, and found that child support was not self-modifying. The Georgia court specifically found that Appellant was not required to provide annual income information.

On July 31, 2008, Appellee petitioned for recognition, domestication, enforcement, and modification in Florida. During a hearing on the petition, Appellee asked the Florida court to reinterpret the agreement, find Appellant in arrears, and order him to pay one-third of his yearly income from 2005 forward. Appellant objected several times, arguing that res judicata barred Appellee from raising the issue a second time. Appellant tried to introduce the Georgia contempt order and hearing transcript, but the Florida court denied the request.

After the hearing, Appellant moved to reopen evidence and accept the Georgia order and transcript as evidence supporting his res judicata argument; the motion was denied. In its final judgment, the Florida court found Appellant had paid $105,820.00 in child support, but still owed $222,854.84 in unpaid child support from 2003 through December 31, 2009. The Florida court also modified child support to one-third of Appellant’s 2009 income, or $2,084.36 per month, beginning July 1, 2010.

“The foundation of res judicata is that a final judgment in a court of competent jurisdiction is absolute and settles all issues actually litigated in a proceeding as well as those issues that could have been litigated.” Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006); see Fla. Dep’t. of Transp. v. Juliano, 801 So.2d 101 (Fla.2001).

Interpretation of the parties’ divorce agreement was fully litigated with notice, opportunity to be heard, and legal representation. The orders interpreting the agreement and setting child support were entered by a Georgia court of competent jurisdiction; therefore, Appellee was barred by res judicata from relitigating the issue in Florida. See Fla. Dep’t of Transp., 801 So.2d at 105. The Florida trial court had jurisdiction to modify child support from the date the petition for domestication was filed. See Barr v. Barr, 724 So.2d 1200, 1202 (Fla. 1st DCA 1998). We therefore reverse the portion of the trial court’s final order finding Appellant was in arrears from 2003 to July 31, 2008, and remand for a determination of child support modification beginning July 31, 2008, the date that Appellee petitioned for domestication.

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

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


text:
    Teresa Sanders CHARO, Sole Residential Heir, Appellant, v. James SANDERS, Andrew Pepper, and Darlene Burke, as heirs in the Estate of Helen Bradbury Reams, deceased, Appellees.
    No. 1D10-5272.
    District Court of Appeal of Florida, First District.
    Feb. 16, 2011.
    Rehearing Denied March 31, 2011.
    Teresa Sanders Charo, pro se, Appellant.
    George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s show cause order of October 5, 2010, as well as the Petition for Belated Appeal, which the Court treats as a supplemental response, the Court has determined that the appellant’s notice of appeal failed to timely invoke the Court’s jurisdiction. Accordingly, the appeal is hereby dismissed as untimely. Any remedy the appellant may have lies with the lower tribunal. Cf. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983); see also Powell v. Dept. of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999) (determining that appellate court could not grant petition seeking belated appeal of order entered in a civil matter).

WEBSTER, HAWKES, and THOMAS, JJ., concur.


text:
    SHERIFF OF CLAY COUNTY and Clay County Board of County Commissioners, Appellants, v. FLORIDA STATE LODGE, FRATERNAL ORDER OF POLICE, INC., Appellee.
    No. 1D09-3115.
    District Court of Appeal of Florida, First District.
    Feb. 17, 2011.
    Rehearing Denied March 30, 2011.
    Mark H. Scruby, County Attorney, Green Cove Springs, for Appellant Clay County Board of County Commissioners; and Wayne L. Helsby and Mark E. Levitt of Allen, Norton & Blue,' P.A., Winter Park, and Raoul G. Cantero and Kerri L. McNulty of White & Case LLP, Miami, for Appellant Sheriff of Clay County.
    T.A. “Tad” Delegal III of Delegal Law Offices, P.A., Jacksonville, for Appellee.
   PER CURIAM.

AFFIRMED. See Sheriff of Pasco County v. Fla. State Lodge, 53 So.3d 1073 (Fla. 1st DCA 2010).

WOLF, DAVIS, and PADOVANO, JJ„ concur.


author: WALLACE, Judge. LaROSE, Judge,

text:
    Justin Peter HENDLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2890.
    District Court of Appeal of Florida, Second District.
    Feb. 18, 2011.

      James Marion Moorman, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ha Thu Dao, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Without a warrant, a subpoena, or prior notice, law enforcement officers obtained Justin Hendley’s prescription records from a pharmacy. The State charged Mr. Hendley with obtaining a controlled substance by fraud. He pleaded no contest, reserving the right to appeal the denial of his dispositive motion to suppress. On appeal, Mr. Hendley argues that the law enforcement officers acted impermissibly. However, because section 893.07, Florida Statutes (2008), requires pharmacists to maintain records containing controlled substances delivered by them and to make such records available for inspection and copying by law enforcement officers, the circuit court properly denied the motion to suppress. Accordingly, we affirm Mr. Hendley’s judgment and sentence.

The State charged Mr. Hendley with obtaining a controlled substance by fraud under section 893.13(7)(a)(9), by passing a fraudulent prescription at Hedges Pharmacy in Sarasota. Before entering a no contest plea to the charge, Mr. Hendley filed a motion to suppress in the circuit court. In his motion, Mr. Hendley sought to suppress “any identification of the Defendant, prescriptions, medical records or other pharmaceutical records” that the law enforcement officers had allegedly obtained in violation of his constitutional right against unreasonable searches and seizures. More specifically, Mr. Hendley argued that the law enforcement officers had obtained information from Hedges Pharmacy and from Sarasota Emergency Associates in violation of sections 395.3025(4)(d) and 465.017(2)(a), Florida Statutes (2008), without first obtaining a subpoena or a warrant and without probable cause. The State responded that the law enforcement officers had properly obtained the information in question under section 893.07(4).

The evidence at the hearing on Mr. Hendley’s motion to suppress showed that Detective Robert Armstrong, who works in the narcotics unit of the Sarasota Police Department, received a pharmacy alert bulletin in August 2008, indicating that Mr. Hendley had passed a fraudulent prescription for thirty milligrams of oxycodone, a schedule II controlled substance, at another Sarasota pharmacy. After receiving the bulletin, Detective Armstrong called Terry Provencal at Hedges Pharmacy and asked if Mr. Hendley had passed any prescriptions there. Ms. Provencal knew Detective Armstrong from prior contacts and investigations.

Ms. Provencal told Detective Armstrong that Mr. Hendley had filled a prescription for oxycodone the previous month that purported to be written by Dr. Barry Kru-glick. Later, Detective Armstrong learned from his partner, Detective Quin-lan, that Dr. Kruglick’s first name is “Bruce” and not “Barry.” Based on this information, Detective Armstrong concluded that the prescription Mr. Hendley had presented at Hedges Pharmacy was fraudulent. The parties stipulated that Detective Quinlan then contacted Dr. Krugliek’s office at Sarasota Emergency Associates and learned that Mr. Hendley had been a patient at that office with Dr. Steven R. Newman in 2007. Later, the State obtained a copy of the prescription that Mr. Hendley had filled at Hedges under the name of Dr. Barry Kruglick. At the conclusion of the hearing, the circuit court denied Mr. Hendley’s motion to suppress, concluding that section 893.07 authorized the Sarasota detectives to obtain the information from the pharmacy without a subpoena.

On appeal, Mr. Hendley argues that the Sarasota detectives improperly seized his records from Hedges Pharmacy without a warrant, a subpoena, or notice to him under sections 395.3025(4)(d) and 465.017(2)(a). Thus the circuit court erred in denying his motion to suppress. We disagree. Section 395.3025 applies to “licensed facilities],” which are defined as “a hospital, ambulatory surgical center, or mobile surgical facility.” Therefore, that statute does not control whether law enforcement officers may obtain records from a pharmacy such as Hedges. See State v. Tamulonis, 39 So.3d 524, 527 (Fla. 2d DCA 2010) (stating that section 395.3025 does not apply to pharmacies); State v. Bean, 36 So.3d 116, 118 (Fla. 2d DCA 2010) (noting same); see also State v. Shukitis, 58 So.3d 406, 408, 2010 WL 4365761 (Fla. 2d DCA 2010) (citing Tamu-lonis for the foregoing proposition). Accordingly, we analyze Mr. Hendley’s argument under section 465.017(2)(a).

Section 465.017(2)(a) provides in pertinent part as follows:

Except as permitted by this chapter, and chapters 406, 409, 456, 499, and 893, records maintained in a pharmacy relating to the filling of prescriptions and the dispensing of medicinal drugs shall not be furnished to any person other than to the patient for whom the drugs were dispensed ... except upon the written authorization of such patient. Such records may be furnished in any civil or criminal proceeding, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or her or his legal representative by the party seeking such records.

(Emphasis added.) Nevertheless, section 893.07(l)(b) requires persons engaged in the dispensing or distribution of controlled substances to “maintain, on a current basis, a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him or her.” Section 893.07(4) further provides in pertinent part that “[e]very inventory or record required by this chapter, including prescription records, shall be maintained ... and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” (Emphasis added.)

In Tamulonis, this court addressed the interplay between sections 465.017 and 893.07 and concluded that section 893.07(4) authorizes “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” to obtain an indiyidual’s prescription records related to controlled substances without a warrant, a subpoena, or prior notice to the patient. 39 So.3d at 528 (quoting § 893.07(4)); see also Shukitis, 60 So.3d at 407-08 (noting same). Although we recognized that individuals have a privacy interest in their prescription records, we concluded that the State has a compelling interest in regulating controlled substances and that section 893.07(4) is narrowly tailored to accomplish this goal. Tamulonis, 39 So.3d at 527-28. Thus section 893.07(4) authorized Detective Armstrong — a narcotics detective investigating a pharmacy alert bulletin concerning Mr. Hendley’s passing fraudulent prescriptions for controlled substances — to obtain information from Ms. Provencal at Hedges Pharmacy with regard to Mr. Hendley’s passing a prescription for oxycodone. It follows that the circuit court properly denied Mr. Hendley’s motion to suppress under the authority of section 893.07(4).

We write further to address the State’s appellate argument that Mr. Hendley lacked standing to challenge the legality of the seizure of his prescription because he did not have a reasonable expectation of privacy in the fraudulent prescription that he passed at Hedges Pharmacy. Although the State did not raise this issue in the circuit court, standing may be properly raised for the first time on appeal. See McCauley v. State, 842 So.2d 897, 900 (Fla. 2d DCA 2003). In response to the State’s argument, Mr. Hendley urges this court to remand this matter to the circuit court to develop further factual evidence to determine his standing as we did in State v. Fernandez, 36 So.3d 120 (Fla. 2d DCA 2010), and State v. Johnson, 40 So.3d 904 (Fla. 2d DCA 2010). But a remand for that purpose would be a futile exercise in this case.

“The law is clear that for a defendant to have standing to challenge a search, he or she must show a proprietary or possessory interest in the area of search or that there are other factors which create an expectation of privacy which society is willing to recognize as reasonable.” State v. Singleton, 595 So.2d 44, 45 (Fla.1992); see also Hicks v. State, 929 So.2d 13, 16 (Fla. 2d DCA 2006) (noting same). A number of courts have recognized that a defendant does not have a reasonable expectation of privacy in stolen property. See, e.g., Singleton, 595 So.2d at 45 (no standing to challenge the search of a vehicle that the defendant was not authorized to drive); Hicks, 929 So.2d at 16-19 (no reasonable expectation of privacy in a stolen computer); State v. Lennon, 963 So.2d 765, 769-70 (Fla. 3d DCA 2007) (no expectation of privacy in a stolen jet ski or trailer); State v. Bostick, 745 So.2d 496, 497 (Fla. 1st DCA 1999) (no standing to challenge seizure of items obtained from a stolen car); Tongue v. State, 544 So.2d 1173, 1175 (Fla. 5th DCA 1989) (no legitimate expectation of privacy in a stolen vehicle). “The Fourth Amendment does not protect a defendant from a warrantless search of property that he stole, because regardless of whether he expects to maintain privacy in the contents of the stolen property, such an expectation is not one that ‘society is prepared to accept as reasonable.’ ” Hicks, 929 So.2d at 17 (quoting United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir.2005)).

For reasons similar to those expressed about stolen property, we conclude that society would not recognize as reasonable any asserted expectation of privacy in a fraudulent prescription. The passing of fraudulent prescriptions obviously contributes to the illegal sale and to the abuse of controlled substances. Sadly, the proliferation of fraudulent prescriptions frequently makes it more difficult for people with valid prescriptions for controlled substances to obtain their required medications. And although we recognized in Tamulonis that “[a]n individual has a privacy interest in his or her prescription records,” we did not conclude that an individual has a privacy interest in a fraudulent prescription. 39 So.Sd at 528.

Here, Mr. Hendley did not submit any evidence to establish that he had a reasonable expectation of privacy in the prescription that Detective Armstrong obtained from Hedges Pharmacy. And it was undisputed in the circuit court that Mr. Hendley filled a prescription at Hedges Pharmacy for oxycodone purportedly written by Dr. Barry Kruglick and that Dr. Kruglick’s first name is actually Bruce. Thus the subject prescription was indisputably fraudulent, and Mr. Hendley did not have a reasonable expectation of privacy in it. It follows that he lacked standing to challenge the State’s search and seizure of that prescription. Because the essential facts are undisputed, and because we conclude that the Sarasota detectives were authorized to obtain the prescription under section 893.07(4), it would be a waste of judicial resources to remand this case for the circuit court to hold additional proceedings and to make findings about Mr. Hendley’s standing.

For these reasons, we affirm Mr. Hend-ley’s judgment and sentence for obtaining a controlled substance by fraud.

Affirmed.

MORRIS, J., Concurs.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

Mr. Hendley claims that law enforcement officers obtained his pharmacy records in violation of his right to be free from unreasonable searches and seizures. On the record before us, it is beyond question that Mr. Hendley passed a fraudulent prescription. He has no reasonable expectation of privacy in such a fake. Accordingly, I would affirm the trial court’s order on the sole basis that Mr. Hendley lacks standing.

      . See U.S. Const, amends. IV, XIV; art. I, § 12, Fla. Const.

      . See § 893.03(2)(a)(l)(o).

      .The bulletin indicated that Mr. Hendley had passed a fraudulent prescription purportedly written by a different doctor.

      . The circuit court did not specifically address Mr. Hendley's argument that the information obtained from Sarasota Emergency Associates should also have been suppressed. We observe that proof of Mr. Hendley’s status as a patient with Dr. Newman in 2007 was probably not necessary for the State to prove its case. And, on appeal, Mr. Hendley does not address his claim made in the circuit court that the detectives improperly obtained his medical information from the doctors' office. For these reasons, we do not consider that issue in this opinion.

      . § 395.002(16).


text:
    Melinda Jean CATRETT, Appellant, v. STATE of Florida, Appellee. Porsha J. Rougas, Appellant, v. State of Florida, Appellee. Michael S. Cummings, Appellant, v. State of Florida, Appellee.
    Nos. 1D10-3094, 1D10-3117, 1D10-3569.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2011.
    Rehearing Denied March 30, 2011.
    Nancy A. Daniels, Public Defender, and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellants Melinda Jean Catrett and Porsha J. Rougas; and William B. Richbourg, Pensacola, for Appellant Michael S. Cummings.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Anne C. Conley and Therese A. Savona, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See United States v. Matlock, 415 U.S. 164, 171, 171 n. 7, 94 S.Ct. 988, 39 L.Ed.2d 242 (1974) (holding that a third party’s “actual authority” to consent to a warrantless search by law enforcement officers is dependent on proof that the third party “possessed common authority over or other sufficient relationship to the premises or effects sought to be inspected,” and that “[t]he authority which justifies the third-party consent does not rest upon the law of property, ... but rests rather on mutual use of the property by persons generally having joint access or control for most purposes, so that it is reasonable to recognize that any of the co-inhabitants has the right to permit the inspection in his own right and that the others have assumed the risk that one of their number might permit the common area to be searched”).

WOLF, WEBSTER, and ROBERTS, JJ., concur.


text:
    Rob BRAYSHAW, Stephanie Brayshaw, Appellants, v. AGENCY FOR WORK FORCE INNOVATION, et al., Appellees.
    No. 1D09-5894.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.
    Rehearing Denied March 30, 2011.

      Rob Brayshaw and Stephanie Brayshaw, pro se, Appellants.
    Michael P. Bist of Gardner, Bist, Wiener, Wadsworth & Bowden, P.A., Tallahassee, and John R. Perry, Senior Attorney, Tallahassee, for Appellees.
   PER CURIAM.

Appellants Rob Brayshaw and Stephanie Brayshaw have applied for unemployment compensation benefits, and their entitlement to benefits depends on whether they were independent contractors or employees of Appellee AHB, LLC. At issue in this appeal is a final order of the Agency for Workforce Innovation (“Agency”) finding that the Brayshaws were independent contractors. The Brayshaws argue the Agency erred by failing to apply the criteria used by the Internal Revenue Service to determine, for employment tax purposes, whether an employer-employee relationship exists.

Under section 443.1216(1)(a)2., Florida Statutes (2008), persons who may be entitled to unemployment compensation include “[a]n individual who, under the usual common-law rules applicable in determining the employer-employee relationship, is an employee.” The statute does not refer to other rules or factors for determining the employment relationship. Therefore, the Agency was limited to applying only Florida common law in determining the nature of the employment relationship between the Brayshaws and AHB, LLC. In Cantor v. Cochran, 184 So.2d 173, 174-75 (Fla.1966), the supreme court adopted as the test in Florida that which is set out in 1 Restatement of the Law, Agency (Second) § 220 (1958):

(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

See Dep’t of Health & Rehab. Servs. v. Dep’t of Labor & Employment Sec., 472 So.2d 1284, 1286 (Fla. 1st DCA 1985) (stating that “[t]he proper factors to be considered in determining whether an employer-employee relationship exists were listed in [Cantor ].”). We find the Agency properly applied these factors, and its findings are supported by competent, substantial evidence. See Tamburello v. State, Dep’t of Mgmt. Servs., 657 So.2d 32 (Fla. 1st DCA 1995). Accordingly, we affirm the Agency’s order finding the Brayshaws were independent contractors of AHB, LLC.

AFFIRMED.

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Tracie Turner JACKSON, et al., Appellants/Cross-Appellees, v. Alejandro J. PENA, M.D. et al., Appellees/Cross-Appellants.
    Nos. 5D08-2957, 5D09-1454.
    District Court of Appeal of Florida, Fifth District.
    Feb. 25, 2011.
    Rehearing Denied April 8, 2011.
    Christian D. Searcy and Darryl L. Lewis of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, and Philip M. Burlington and Andrew A. Harris, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellants/Cross-Appel-lees.
    Mark Hicks, Dinah Stein and Gary A. Magnarini, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Jennings L. Hurt III and Henry W. Jewett, II, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees/Cross Appellants.
   PER CURIAM.

The Jacksons, plaintiffs below, appeal from a final judgment entered in accordance with the jury’s verdict. We affirm as to all issues raised on appeal and cross-appeal and write only to discuss the apparent unwillingness or inability of defense counsel, Jennings L. Hurt, III, to comply with fairly simple instructions from the trial court not to use the terms “guilty” or “innocent” when questioning witnesses or addressing the jury with regard to the issue of the defendants’ standard of care. The record reflects that Mr. Hurt repeatedly disregarded the trial judge’s instructions even after the judge corrected him, on more than one occasion, in the presence of the jury. While we agree with the Jacksons that the trial court should have done more to enforce its directives, we conclude that reversal is not required. It is highly unlikely that Mr. Hurt’s comments affected the jury verdict, particularly given that the trial court corrected Mr. Hurt in the jury’s presence, gave timely curative instructions to the jury and properly instructed the jury on the burden of proof at the conclusion of the case. See, e.g., Bradley v. S. Baptist Hosp. of Fla., Inc., 943 So.2d 202, 207 (Fla. 1st DCA 2006) (trial court does not abuse discretion in denying motion for new trial where counsel’s alleged misconduct not so pervasive and egregious as to prejudice jury’s ability to fairly assess evidence). We remind counsel that although an attorney’s misconduct may not rise to the level of reversible error, it should be eliminated because it lowers the professional reputation of the Bar and brings disrepute to our judicial system. Eichelkraut v. Kash N’ Karry Food Stores, Inc., 644 So.2d 90, 93 (Fla. 2d DCA 1994), disapproved on other grounds, Murphy v. Int’l Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

AFFIRMED.

MONACO, C.J, EVANDER and JACOBUS, JJ., concur.

      . See Muhammad v. Toys R Us, Inc., 668 So.2d 254, 259 n. 1 (Fla. 1st DCA 1996) ("In light of the propensity of appellate courts to reverse when an attorney's conduct violates the rules of professional conduct, trial judges are advised to take appropriate measures to prevent such conduct.”).


author: DAVIS, J.

text:
    Vincent CHISOLM, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4302.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied April 13, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

Appellant, Vincent Chisolm, appeals his judgment and sentence for third-degree felony child abuse. He contends that the trial court erred in denying his motion for judgment of acquittal, in not instructing the jury on the charge of contributing to the dependency of a child, and in allowing the examining physician to render an opinion regarding the cause of the child’s injuries. We affirm Appellant’s conviction and write only to address his first argument.

The State charged Appellant with aggravated child abuse, and presented testimony at trial that Appellant repeatedly struck his seven-year-old son on his back and arms with a belt containing some type of metal circles or studs. The child testified that Appellant stopped hitting him at one point, got something to drink, and started “whipping” him again. The defense presented testimony that Appellant struck his child because the child refused to finish his homework. The Director of the Child Protection Team, Dr. Samuel Moorer, testified that “virtually the entire surface of [the child’s] back and his right upper arm were covered with patterned bruises....” He further testified that the injuries were “pretty dramatic” and “quite extensive.” In addition to bruising, Dr. Moorer saw several circular marks approximately one centimeter in size. Appellant moved for a judgment of acquittal, arguing in part that he could only be convicted of contributing to the dependency of a child, a misdemeanor, because the child sustained nothing more than significant welts and bruises. The trial court denied Appellant’s motion and instructed the jury on aggravated child abuse and the lesser included offense of third-degree felony child abuse. It also instructed the jury on Appellant’s defense that a “parent has the right to administer reasonable or non-excessive corporal punishment.” The jury found Appellant guilty of the lesser included offense. This appeal followed.

. The trial court’s denial of Appellant’s motion for judgment of acquittal is reviewed de novo. Pagan v. State, 880 So.2d 792, 803 (Fla.2002). Appellant contends on appeal, as he did below, that because his child sustained no more than significant bruises or welts, he could be convicted of contributing to the dependency of a child, a first-degree misdemeanor under section 827.04, Florida Statutes, but not third-degree felony child abuse under section 827.03(1). In support of his argument, Appellant relies in part upon State v. McDonald, 785 So.2d 640 (Fla. 2d DCA 2001), and Raford v. State, 828 So.2d 1012 (Fla. 2002), which approved both McDonald and Raford v. State, 792 So.2d 476 (Fla. 4th DCA 2001), a case in which the Fourth District affirmed the appellant’s felony child abuse conviction for striking his girlfriend’s child with a belt.

In Raford, the supreme court held that a parent or one standing in loco parentis has no absolute immunity and may be convicted of felony child abuse under section 827.03(1). 828 So.2d at 1021. In holding such, the supreme court cited portions of McDonald wherein the Second District addressed amendments to the child abuse statutes and amendments to chapter 39. Id. at 1018. The amendments to chapter 39 designated certain types of excessive corporal punishment as civil child abuse and provided that corporal discipline may be considered excessive or abusive when it results in significant bruises or welts. Id. at 1018-19. The supreme court quoted the Second District as follows:

[A]fter 1998, a parent who spanked a child with such force or repetition as to cause significant bruises or welts could be considered to have abused the child under chapter 39. Even if the Department of Children and Families did not initiate a dependency proceeding, the State could charge the parent with contributing to the dependency of a minor [a misdemeanor under section 827.04] for such conduct.... [I]f a parent can be charged with the misdemeanor offense under section 827.04 when a spanking results in significant welts, the legislature intended more serious beatings that do not result in permanent disability or permanent disfigurement to be treated as simple child abuse under section 827.03(1).

Id. at 1019 (quoting McDonald 785 So.2d at 646).

The Second District subsequently held that a spanking that results in significant bruises or welts does not rise to the level of felony child abuse but instead may constitute the misdemeanor of contributing to the dependency of a child under section 827.04. See King v. State, 903 So.2d 954, 955 (Fla. 2d DCA 2005).

Thereafter, in Czapla v. State, 957 So.2d 676 (Fla. 1st DCA 2007), the appellant appealed his conviction for third-degree felony child abuse, arguing, as Appellant does in this case, that, under Raford, the parental corporal punishment must be sufficiently serious to cause injury greater than significant bruises or welts in order for it to constitute felony child abuse. 957 So.2d at 679. According to the appellant’s son’s testimony in Czapla, the appellant punched him in the head for failing to do yard work, pushed him into an adjoining room and onto the floor, and kicked him in the side while he was on the floor. Id. at 677. We concluded that, pursuant to Ra-ford, if a parent establishes the affirmative defense of reasonable parental corporal punishment, the considerations of section 827.03(1) are modified and the offense that may be sustained depends directly upon the type of injury sustained by the child. Id. at 679. We rejected the appellant’s argument that his conduct was reasonable and permissible simply because his son did not sustain more than significant bruising or welts. Id. at 680. We noted that the facts of the case before us differed from a typical case where the defense of reasonable corporal discipline is raised because the appellant did not administer a spanking or other typical form of corporal punishment. Id. at 679-80. In affirming the conviction, we held that intentionally kicking a child who is lying on the ground was, as a matter of law, not reasonable corporal punishment. Id. at 680.

In this case, Appellant focuses only upon the child’s injuries in arguing that his actions did not amount to felony child abuse. However, as we held in Czapla, before looking to the child’s injuries, it must be determined whether the actions at issue constituted reasonable corporal punishment. We hold that Appellant’s act of repeatedly striking his child across his back and arms with a belt containing some type of metal objects cannot be likened to a typical spanking or other form of reasonable corporal punishment. Cf. Raford, 828 So.2d at 1020 (“Thus, it is not that felony child abuse by a parent is a nonexistent crime, but rather a parent may assert as an affirmative defense his or her parental right to administer ‘reasonable’ or ‘nonex-cessive’ corporal punishment, i.e., a typical spanking, in a prosecution for simple child abuse.”).

Accordingly, Appellant’s conviction for third-degree felony child abuse is AFFIRMED.

KAHN and HAWKES, JJ., concur.


text:
    Byron LOWERY, Appellant, v. STATE of Florida, et al. Appellees.
    No. 1D10-5742.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied April 14, 2011.
    Byron Lowery, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellees.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 3, 2010, as well as the record on appeal, the Court has determined that the appeal is premature. The appellant seeks review of the lower tribunal’s September 1, 2010, Order Deeming Action One for Non-Habe-as Corpus Relief. Contrary to the appellant’s assertion, this order does not dismiss the petition for writ of habeas corpus. Rather, the order merely determines that the relief sought is not in the nature of habeas corpus relief and that it shall be treated as seeking non-habeas corpus relief. The petition apparently remains pending in the lower tribunal. This interlocutory order is not subject to review at this time. Cf. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005) (dismissing without prejudice to the right to seek review of interlocutory order upon entry of a final order). Accordingly, the appeal is dismissed.

LEWIS, CLARK, and ROWE, JJ., concur.


author: WELLS, Judge.

text:
    Victor OSAGIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2017.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Heidi Milan Cabellero, Assistant Attorney General, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   ON MOTION FOR CLARIFICATION

WELLS, Judge.

The appellee has filed a motion for clarification in connection with the opinion issued by this Court on February 9, 2011. We grant clarification, withdraw our previous opinion, and substitute this corrected opinion in its stead.

CONFESSION OF ERROR

Defendant, the owner of a pharmacy, appeals his conviction for one count of grand theft and one count of medicaid fraud. He argues that the trial court reversibly erred by allowing the State to introduce inadmissible hearsay evidence over defense objection. On the State’s proper confession of error, we reverse.

At trial, over objection, the State proved its case in critical part by using business records from defendant’s wholesaler admitted through the testimony of a fraud investigator assigned to defendant’s pharmacy, without a custodian of the records or other qualified person testifying as to the accuracy of the records. See Brooks v. State, 918 So.2d 181, 193 (Fla.2005) (“To be admissible as a business record, it must be shown that the record was (1) made at or near the time of the event recorded; (2) by or from information transmitted by a person with knowledge; (3) kept in the course of a regularly conducted business activity; and (4) that it was the regular practice of that business to make such a record.”); see also § 90.803(6)(a), Fla. Stat. (2007) (“A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, á person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, or as shown by a certification or declaration that complies with paragraph (c) and s. 90.902(11), unless the sources of information or other circumstances show lack of trustworthiness.”). The comparison of these records to the payments made by the State being the chief mechanism by which the charges at issue were proven, we cannot conclude the admission of this evidence was harmless.

Accordingly, the order under review is reversed and remanded.

      . See § 90.801(l)(c), Fla. Stat. (2007) (" ‘Hearsay’ is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”); § 90.802, Fla. Stat. (2007) ("Except as provided by statute, hearsay evidence is inadmissible.”); § 90.803(6)(a), Fla. Stat. (2007) (identifying business record exception to the hearsay rule).

      . In Mann v. State, 787 So.2d 130, 135 (Fla. 3d DCA 2001), we explained:
      In order to lay a foundation for the business record exception to the hearsay rule, it is not necessary to call the person who actually prepared the document. The record custodian or any qualified witness who has the requisite knowledge to testify as to how the record was made can lay the necessary foundation.
      (Footnote omitted). As the State concedes that standard was not met in the instant case.


text:
    Marsha J. PEADEN and Claudia Fischer, Appellants, v. ISLAND BREEZE, LLC, an Alabama Limited Liability Company, and Destin Land and Title, Inc., a Florida corporation, Appellees.
    No. 1D10-3192.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 14, 2011.
    Inga G. Fahs-Gielisse of Fahs-Gielisse, LLC, Panama City Beach, for Appellants.
    Michael A. Jones, Niceville, and Robert A. Goodwin, III, of Mathews & Hawkins, P.A., Destín, for Appellees.
   PER CURIAM.

We conclude that we lack jurisdiction to consider appellants’ contention that the trial court should have ruled on appellants’ motion to dismiss the complaint in inter-pleader filed by appellee Destín Land and Title, Inc. We conclude further, that appellants’ remaining issues are devoid of merit and, accordingly, affirm as to them.

DISMISSED IN PART and AFFIRMED IN PART.

WOLF, WEBSTER, and ROBERTS, JJ., concur.


author: COHEN, J.

text:
    STATE of Florida, Appellant, v. Shaun PEREZ, Appellee.
    No. 5D10-1299.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2011.
    Rehearing Denied April 12, 2011.

      Pamelo Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    William R. Ponall of Kirkconnell, Lindsey, Snure and Ponall, P.A., Winter Park, for Appellee.
   COHEN, J.

The State appeals an order suppressing Shaun Perez’s admissions to a detective made without the benefit of the warnings set forth in Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The facts are not disputed, only their legal significance.

In 2008, detectives with the Orlando Police Department began investigating a sexual battery when I.W., an eleven-year-old girl, reported going to Perez’s home with her thirteen-year-old girlfriend and having sex with Perez’s friend, Jammal Bradley. After giving a statement, I.W. and Detective O’Hern rode through Perez’s neighborhood and she pointed out the location of the sexual encounter. Later that day, O’Hern returned and made contact with Perez.

O’Hern informed Perez he was investigating a sexual assault which was reported to have occurred in the home. O’Hern identified Bradley as the suspect in the assault and explained that he wanted to gather evidence and question Perez about his knowledge of the assault. Although Perez was eighteen years old, he requested his mother be present for the interview. O’Hern allowed him to phone his mother at work, and the two conversed casually while they awaited her arrival. Both Perez and his mother knew that Bradley had been arrested for having sex with an underage female in their home. When she arrived, Perez’s mother did not object to O’Hern’s presence in the home or to her son being interviewed. She believed O’Hern was there to discuss Bradley’s involvement in a sexual assault, rather than any involvement on the part of her son. When O’Hern asked her to leave the room because they were going to discuss sexual issues, a topic he asserted some people are uncomfortable talking about in front of their mothers, she agreed and left. Ultimately, Perez admitted having sex with the second female.

The resolution of this case depends on whether Perez was in custody at the time of his admission. This involves looking at the totality of the circumstances to determine whether a reasonable person in Perez’s position “would not feel free to leave or to terminate an encounter with the police.” Snead v. State, 913 So.2d 724, 727 (Fla. 5th DCA 2005). The Florida Supreme Court set forth four factors to consider in making this determination:

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez v. State, 739 So.2d 568, 574 (Fla.1999).

Because the trial court’s custody determination is a mixed question of law and fact, we defer to its findings of historical facts, as long as they are supported by substantial, competent evidence, but review de novo the constitutional issue. Snead, 913 So.2d at 727.

In its findings, the trial court was concerned with Detective O’Hern’s candor. The trial court believed, despite O’Hern’s testimony to the contrary, that O’Hern deceived Perez into believing he was investigating Bradley, when, in fact, he intended to investigate Perez’s conduct with the second female. Specifically, the trial court stated:

I believe he was going there for the express purpose of targeting Mr. Perez for investigation as to the second sexual encounter that he had been told had occurred.... And he didn’t want to come back a second time, which the innuendo is he knew if he came back a second time, he would have to read Miranda warnings....

The trial court’s belief is not dispositive for two reasons. First, it is unsupported by the record. Although O’Hern may have suspected it was a possibility, or even a likelihood, that Perez had sex with the second female, at the time he questioned Perez, she had neither filed a complaint nor been interviewed. There was also no evidence that I.W. learned the second female had sex with Perez and relayed that to the detectives. Second, even if the trial court’s belief were true, O’Hern’s purpose for questioning Perez is but one of the considerations identified in Ramirez.

Perez asserts the trial court correctly determined he was in custody because O’Hern removed his mother from the room and did not advise Perez that he was free to end the conversation. According to Perez, these facts are analogous to Lee v. State, 988 So.2d 52 (Fla. 1st DCA 2008), and mandate affirmance.

In Lee, the police investigated a juvenile for similar charges faced by Perez. When the police first went to Lee’s home, he was in school so an appointment was scheduled for two days later. Lee was kept home from school and initially questioned in his parents’ presence. In the face of Lee’s repeated denials of wrongdoing, the deputy told the parents to leave the room and resumed questioning. After Lee continued to deny the allegations, the deputy repeatedly told Lee the victim reported having sex with him and that they had evidence of the sexual encounter in the form of the victim’s underwear and bed sheets. Ultimately, Lee admitted his involvement. In affirming the suppression of Lee’s admissions, the court concluded Lee was in custody because he was the subject of the investigation, was isolated from his parents, was subjected to repeated, insistent questioning, and was confronted with evidence of his guilt. We find Lee distinguishable.

In the case at bar, Perez was not pulled away from school or work to answer O’Hern’s questions. Perez was not told that he must be at home so that he could be questioned. Rather, Perez invited O’Hern into the home and a casual conversation ensued while waiting for Perez’s mother to arrive. Ordinarily, a person is not considered to be in custody when he invites a law enforcement officer into his home and agrees to answer questions. See Snead, 913 So.2d at 726. The testimony also indicated the interview was conducted in a non-threatening manner and the tone was conversational, not confrontational. Even assuming O’Hern targeted Perez for investigation, the fact that O’Hern was invited into the home and the non-threatening manner in which the questioning took place weigh in favor of finding that Perez was not in custody.

Perez was also never confronted with evidence of his guilt. As the court observed in State v. Pitts, 936 So.2d 1111, 1127 (Fla. 2d DCA 2006), this factor can “weight ] heavily in the balances.” When a “reasonable person in the suspect’s position would understand that the police have probable cause to arrest the suspect ... that circumstance militates strongly toward the conclusion that the suspect is in custody.” Id. at 1128. Because O’Hern did not confront Perez with any evidence of his guilt, this factor likewise indicates that Perez was not in custody.

Weighing in favor of finding custody are O’Hern’s failure to advise Perez he was free to end the conversation at any time and O’Hern persuading Perez’s mother, whom Perez requested be present for the interview, to leave the room. However, balancing all the facts in light of the four-part test in Ramirez leads us to conclude that a reasonable person in Perez’s situation would not have believed himself to be in custody. Accordingly, we reverse the order suppressing Perez’s confession and remand to the trial court for further proceedings.

REVERSED and REMANDED.

GRIFFIN and JACOBUS, JJ., concur.


text:
    Danny SELLERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0510.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Rehearing Denied April 15, 2011.

      Danny Sellers, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Marcus D. MITCHELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-794.
    District Court of Appeal of Florida, First District.
    March 4, 2011.
    Rehearing Denied April 15, 2011.
    Marcus D. Mitchell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(A).

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