author: WARNER, J.

text:
    Steven Mark SIEGEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1524.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 28, 2011.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Steven Mark Siegel, appeals' his conviction for attempting to seduce a minor over the internet in violation of section 847.0185(3), Florida Statutes (2002). We reverse, because the trial court erred in disallowing Siegel’s peremptory challenge to two female jurors when defense counsel provided a genuine, gender-neutral reason for each challenge. In addition, the court erred in permitting the state to cross-examine Siegel regarding his prior counsel’s defense of him in another case, as Siegel did not “open the door” to this irrelevant evidence. Finally, we reject Siegel’s claim that he is entitled to additional discovery from the state regarding the computer hard drives used to save the alleged online communications that formed the basis for the charge against him.

Siegel was charged by information with one count of knowingly utilizing the internet to attempt to seduce, solicit, lure, or entice a child, or a person believed to be a child, to commit any illegal act relating to sexual battery, lewdness, or child abuse, in violation of section 847.0135(3), Florida Statutes (2002) over a period of nine months in 2003. The state alleged that Siegel engaged in multiple alleged internet communications with a Boynton Beach male detective posing as a 14-year-old girl. During those conversations starting in January of 2003, most of which were initiated by Siegel, he asked “Monica,” the online name used by the detective, about her age and sexual history and then engaged in a graphic sexual conversation with “Monica,” describing the sexual acts he wanted to perform with her. While they discussed meeting several times during this nine-month period, at no time did they agree to meet at a particular time and place. As the summer wore on, he told her that he wanted to talk to her more before meeting her. He never met her and discontinued conversations after October. Thereafter, the state filed charges against him.

Pursuant to section 90.404(2), Florida Statutes, the state filed a pre-trial notice of intent to offer evidence of similar crimes, wrongs, or acts. Specifically, the state sought to offer internet communications that arose from other investigations — one in Pennsylvania and one in St. Lucie County — in which Siegel engaged in internet communications with detectives posing as mothers of sexually active girls. The trial court overruled Siegel’s objections to the evidence, and both incidents were admitted at trial. Siegel was actually arrested in connection with the St. Lucie County incident, but the prosecutor dismissed the charges.

At trial, during jury selection Siegel sought to strike prospective juror Berman, a female school teacher. When the state asked for a gender-neutral reason for the strike of Ms. Berman, defense counsel stated that Siegel “would rather not have someone that has continued contact with children. She is a teacher.” The court ruled: “I find that is not a genuine strike and I disallow it.” Defense counsel added that Berman “said she goes to chat rooms, and I [would] rather have somebody that doesn’t go in chat rooms.” The court reaffirmed its ruling. Siegel also challenged another female teacher, and the court likewise found the reason to be pretextual.

When the selection of the jurors began, defense counsel again reiterated his challenge to the two teachers, which the court again disallowed. After stating again his objection to the selection process, the court decided to begin anew the jury selection process. Defense counsel again challenged Ms. Berman on the ground that she was a teacher who had contact with children. The state did not object, but the court nonetheless announced, “I disallow that strike as it was challenged last time, and I found that [it] was ... not a genuine strike but actually a pretext based on the State’s request for a gender-neutral reason.”

Defense counsel also challenged Ms. Walker-Raines, a bank manager who had testified that she had a cousin in the Palm Beach County jail charged with a sexual crime — “a similar charge, not involving a computer crime.” When the state requested a gender-neutral reason, defense counsel explained that he did not want her on the jury because she “has a family member who is sitting with a sex crime in prison, and she has two family members with a sex crime.” The court disallowed the strike: “I find that is a pretext ... and not a genuine strike. She has one cousin who is in prison for a crime similar to that which your client is accused of.” Defense counsel stated, “It’s a sex crime.” However, the court responded: “And I deny the motion to strike her for peremptory. I find it is an effort, a pretextual effort to strike, so I disallow the strike on Walker-Raines.” Eventually, Siegel accepted the panel subject to his prior objections.

The state’s case consisted primarily of the testimony of the detective who carried on the online conversations as “Monica,” together with the Williams rule evidence of the Pennsylvania and St. Lucie County incidents. After moving for judgment of acquittal at trial, which the trial court denied, Siegel presented a “fantasy” defense that he did not believe he was really talking to a child. In particular, he testified at trial that he believed “Monica” was an adult posing as a 14-year-old because her persona often changed and it was unrealistic for a 14-year-old to say the things that “Monica” talked about during the chats. He likewise believed that he was actually online chatting with adults in both the Pennsylvania and St. Lucie County cases. As to the St. Lucie County case, he testified that it had been dismissed. Finally, he offered expert testimony that people create imaginary identities in online chat rooms for entertainment purposes.

On cross-examination, Siegel acknowledged making statements to the undercover detectives in Pennsylvania and St. Lucie County, including ones regarding wanting to have sex with the daughters of the “mothers” with whom he was communicating. However, with respect to the St. Lucie County prosecution, Siegel added: “[I]t’s obvious I didn’t do anything illegal because the charges once again were dismissed in this case.”

The prosecutor then asked, “Well, these charges were dismissed because you hired an attorney and you engaged in extensive motion practice with the State Attorney, right?” Defense counsel objected on relevancy grounds. The trial court ruled that by repeatedly stating that the charges were dropped in the St. Lucie County case, Siegel opened the door for the prosecutor to “bring in the rest of the story.” The prosecutor then got Siegel to acknowledge that he hired a “pretty good attorney” who took depositions, filed a motion to dismiss, filed a motion in limine, and filed a speedy trial demand, after which the state attorney dropped the charges. Siegel explained that he made the speedy trial demand because he believed the state had a weak case, the state attorney repeatedly asked for continuances, and he wanted a resolution of the case. In closing argument, the state again referenced the fact that Siegel hired an attorney to defend him against the St. Lucie County prosecution:

[STATE]: Now it’s true that the state attorney up in Fort Pierce dropped the charges against the defendant, and that was after the defendant hired an attorney. His attorney filed numerous motions, took depositions, demanded speedy trial, but the fact remains the defendant did all of the things that you heard in this trial.

The jury convicted Siegel as charged, and the trial court sentenced him to five years of sex-offender probation. This appeal follows.

In his first, and dispositive, issue on appeal, Siegel argues that the trial court erred by denying his peremptory challenges to the two female jurors after he offered valid gender-neutral reasons for them. He claims that in both instances, the court failed to engage in the requisite genuineness analysis, and that even if the court did engage in an unstated analysis, the findings of pretext were clearly erroneous.

A trial court’s rulings on the propriety of peremptory challenges are reviewed under the abuse of discretion standard. See Franqui v. State, 699 So.2d 1332, 1334-35 (Fla.1997). In Melbourne v. State, 679 So.2d 759 (Fla.1996), our supreme court set forth a three-part procedure that must be followed whenever a peremptory strike is challenged as discriminatory. First, the objecting party must make a timely objection, show that the venire person is a member of a distinct protected group, and request that the court ask the striking party to provide a reason for the strike. Id. at 764. Second, the burden shifts to the proponent of the strike to come forward with a race-neutral or gender-neutral explanation. See id.; see also Welch v. State, 992 So.2d 206 (Fla.2008) (applying Melbourne to claims of gender-based discrimination). Third, if the explanation is facially race-neutral or gender-neutral, the court must determine whether the explanation is a pretext “given all the circumstances surrounding the strike.” Melbourne, 679 So.2d at 764. “The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness.” Id.

Circumstances that are relevant to the “genuineness” inquiry may include, but are not limited to: the racial (or gender) make-up of the venire; prior strikes exercised against the same racial (or gender) group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. Melbourne, 679 So.2d at 764 n. 8. Likewise, while the constitution does not require that the explanation be reasonable, reasonableness is one factor that a court may consider in assessing genuineness. Id. at n. 9. Because identifying the true nature of an attorney’s motive behind a peremptory strike turns primarily on a credibility determination, a trial judge’s ruling on the genuineness of a peremptory challenge will be affirmed on appeal unless clearly erroneous. Young v. State, 744 So.2d 1077, 1082 (Fla. 4th DCA 1999).

“There is nothing in Melbourne which requires trial judges to articulate their thought process on the issue of pretext.” Johnson v. State, 706 So.2d 401, 404 (Fla. 3d DCA 1998). But “where a gender or race neutral reason was advanced for the strike, the reason advanced is itself reasonable, and the record is devoid of any indication that the trial judge considered the relevant circumstances surrounding the strike in concluding that it was motivated by improper purposes,” an appellate court must conclude that the trial judge failed to adequately engage in the “genuineness inquiry” mandated by Melbourne. See Jones v. State, 787 So.2d 154, 157 (Fla. 4th DCA 2001). In Jones, we held that the trial court failed to engage in proper genuineness analysis where defense counsel offered a valid gender-neutral reason that the prospective female juror had served in a federal gun case resulting in a guilty verdict, but the trial court merely stated: “[I] don’t think it’s a genuine strike. As far as I am concerned, she is as qualified as anyone else.” Id. at 155-57.

Here, as in Jones, the relevant colloquy between counsel and the trial court indicates that the court never really undertook a “genuineness” analysis, but simply stated that the reasons for the strikes were pretextual. As noted above, relevant circumstances that the trial court is to consider in determining the “genuineness” of a strike include the racial or gender make-up of the venire; prior strikes exercised against the same group; a strike based on a reason equally applicable to an unchallenged juror; or singling the juror out for special treatment. Melbourne, 679 So.2d at 764 n. 8. Nothing in the record suggests that consideration was given to any of these factors, many of which were relevant.

Even if the court engaged in an unstated analysis of the genuineness of the strikes, we find that it was clearly erroneous for the trial court to determine that the reasons for exercising a peremptory strike to jurors Berman and Walker-Raines were not genuine. When defense counsel sought to strike Ms. Berman, no prior strikes had been exercised against women. The reason stated for the strike — that juror Berman was a school teacher who had routine contact with children — was both gender-neutral and eminently reasonable in light of the nature of the charged crime. After the court restarted the jury selection process, the prosecutor did not even lodge an objection to the peremptory strike of juror Berman. Instead, the court simply sua sponte disallowed the challenge because the court had done so the first time around. Nothing in the record supported the court’s conclusion that Siegel was improperly attempting to keep Ms. Berman off the jury because of her gender.

Likewise, even if the court conducted an unstated genuineness analysis of the attempted strike of Ms. Walker-Raines, it was clearly erroneous for the trial court to determine that the reason for the strike was not genuine. Here, the defense sought to strike juror Walker-Raines because she had a relative charged with a sex crime. The fact that a juror has a relative who has been charged with a crime is a facially neutral reason for excusing that juror. Fotopoulos v. State, 608 So.2d 784, 788 (Fla.1992). The reason for defense counsel’s strike was not applicable to any other jurors, and there was no indication that the defense was singling out juror Walker-Raines. Although males comprised the majority of the venire, this was only the second attempted strike of a female juror after the court re-started the jury selection process. Quite simply, the record did not support the trial court’s conclusion that defense counsel’s reason for the strike was a pretext for keeping Ms. Walker-Raines off the jury because of her gender.

In sum, the relevant colloquy between defense counsel and the trial court indicates that the court never really undertook a “genuineness” analysis, and it was clearly erroneous for the court to determine that defense counsel’s stated reasons for the strikes were pretextual. We thus must reverse for a new trial.

Because we are reversing for a new trial, we also address the state’s cross-examination of Siegel regarding his legal representation in the St. Lucie County case. While the state contends that Siegel opened the door to the questions about his defense of the case when he testified that the dismissal of the charges meant that he did not do anything illegal in that case, we disagree.

The trial court has broad discretion to make determinations regarding the scope of cross-examination, and its decisions regarding the admissibility of testimony are reviewed for an abuse of discretion. Graves v. State, 937 So.2d 1286, 1290 (Fla. 4th DCA 2006).

The evidentiary concept of “opening the door” allows the admission of otherwise inadmissible testimony to qualify, explain, or limit testimony or evidence previously admitted. Rodriguez v. State, 753 So.2d 29, 42 (Fla.2000). This principle is premised on “considerations of fairness and the truth-seeking function of a trial.” Id. (internal quotations and citation omitted). In order to open the door, the witness must offer misleading testimony or make a specific factual assertion which the opposing party has the right to correct so that the jury will not be misled. Cullen v. State, 920 So.2d 1155, 1156 (Fla. 4th DCA 2006).

The mere fact that testimony may be characterized as incomplete or misleading, however, does not automatically trigger the admission of otherwise inadmissible evidence under the “opening the door” rule. Redd v. State, 49 So.3d 329, 333 (Fla. 1st DCA 2010). “Rather, the State must demonstrate a legitimate need to resort to such evidence to correct a false impression. Otherwise, the ‘opening the door’ rule threatens to become a pretext for the illegitimate use of inadmissible evidence, and the fairness-promoting purpose of the rule is lost.” Id. (citations omitted). Because fairness is clearly the focus of the rule, “the general unreliability of inadmissible evidence should be one of the court’s considerations in determining whether fairness requires admission.” Jordan v. State, 694 So.2d 708, 712 (Fla.1997) (internal quotations and citation omitted).

Here, Siegel’s testimony that the charges in the St. Lucie County case were dropped was irrelevant. As Professor Eh-rhardt has explained, the relevancy of similar-fact evidence “flows from the underlying act rather than the state or the judicial system having taken a particular action with respect to the charges.” Charles W. Ehrhardt, Florida Evidence, § 404.9 (2010); see also Holland v. State, 432 So.2d 60, 61 (Fla. 1st DCA 1983) (holding that trial court did not err in denying the defendant’s request to inform the jury that the Williams rule offense had been nolle prossed), approved, 466 So.2d 207 (Fla.1985). Thus, the prosecutor could have, and should have, moved to strike Siegel’s testimony when he volunteered that he did not do anything illegal because the charges in the St. Lucie County case were dismissed.

While Siegel’s testimony was irrelevant, it is not clear that this testimony was misleading or incomplete. Siegel’s testimony that the charges against him in the St. Lucie County case were nolle prossed was factually accurate. Even if we were to assume that Siegel gave misleading testimony regarding the dismissal of the charges in St. Lucie County and his belief that he did nothing illegal, the state did not have a legitimate need to resort to cross-examining Siegel in depth regarding the tactics of his legal defense of the St. Lucie County prosecution. Siegel’s testimony was not so misleading or incomplete as to open the door to the prosecutor’s prejudicial cross-examination of Siegel regarding every legal maneuver his attorney took in the defense of the St. Lucie County prosecution. The obvious purpose of this line of questioning was to suggest to the jury that Siegel escaped justice in the St. Lucie County case through his attorney’s legal machinations. This is highly offensive to the constitutional right of counsel guaranteed by the Sixth Amendment and should never have been allowed. Even without the error in jury selection, we would have reversed on this issue, as we could not consider it harmless beyond a reasonable doubt. On re-trial neither side should refer to the dismissal of the St. Lucie County charges.

Finally, we address the trial court’s denial of Siegel’s motion to inspect the hard drive of the Boynton Beach computer to review the online chats. Before trial, Siegel also moved to compel production of the hard drives used to record the communications in the Boynton Beach case and the communications involved in the similar-act investigations. Siegel argued that inspecting the hard drives was critical to verify the accuracy of the printouts of the conversations provided by the state and check the dates of the communications. The prosecutor opposed the motion, arguing that inspection of the Boynton Beach hard drive would endanger ongoing investigations by revealing confidential information also contained on the hard drive. The state’s forensic expert likewise testified that inspection of the hard drives could endanger other investigations. The defense offered to agree to necessary security precautions, but none were specifically identified. The court ruled that the state did not have to produce the drives themselves, but had to produce: “if it can be obtained or retrieved: the dates of the chats and the IP address of the computer that the chats or messages were received from.”

Siegel argues that the trial court abused its discretion in denying his motion to compel production of the Boynton Beach hard drive, claiming that the drive was material to his defense and required by the interests of justice. The state responds that the court received expert testimony that the production of the drive would jeopardize other investigations, and that Siegel did not make a material showing that the hard drive contained exculpatory evidence.

Florida Rule of Criminal Procedure 3.220(f) authorizes a court to “require such other discovery to the parties as justice may require” upon “a showing of materiality.” Fla. R.Crim. P. 3.220(f). “In the discovery context, material means reasonably calculated to lead to admissible evidence.” Franklin v. State, 975 So.2d 1188, 1190 (Fla. 1st DCA 2008). “[T]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” State v. Gonsalves, 661 So.2d 1281, 1282 (Fla. 4th DCA 1995). Nevertheless, the rule also provides for the issuance of protective orders to exempt matters from discovery “on a showing of good cause.” Fla. R.Crim. P. 3.220(1).

The prosecutor provided to the defense copies of the online chat room statements, thus fulfilling its duty pursuant to rule 3.220(b). The defense seeks the underlying computer data of those statements, but the prosecution claims that permitting inspection would compromise other investigations whose data is also on the computer. An adequate and secure method for securing such communications was not proposed. There is no evidence that material information has been withheld, as the prosecutor delivered to the defense the transcripts of the statements. The trial court is invested with discretion to determine whether good cause to limit or deny discovery, and based upon this record we cannot conclude that the court abused its discretion.

We affirm all of the remaining issues raised by Siegel. Because of the reversal on the issues addressed in this opinion, we remand for a new trial.

POLEN and LEVINE, JJ., concur.

      . Siegel argues that he did show that the data was material in that he claimed that the transcripts were not complete, in light of certain issues pertaining to the accuracy of the chats (e.g., the fact that there was a gap, one of the chats contained an incorrect timing sequence, there were different dates listed for the same chat in one instance, and there were formatting inconsistencies). However, our reading of the officer’s testimony is that these were cut-and-paste errors when he copied the chats from the chat window into a Word document. This testimony is insufficient to show that the data itself was materially altered.


source: Caselaw Access Project

author: MAY, C.J.

license: Public Domain

text:
    Michael C. GAMSEN and Michele Gamsen, his wife, Appellants, v. STATE FARM FIRE AND CASUALTY COMPANY and Murray Katsen, Appellees.
    No. 4D09-2636.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 21, 2011.

      Philip M. Burlington and Bard D. Roek-enbach of Burlington & Rockenbach, P.A., West Palm Beach, and Steven J. Hammer of Law Offices of Sheldon J. Schlesinger, P.A., Fort Lauderdale, for appellants.
    Susan S. Lerner and Elizabeth K. Russo of Russo Appellate Firm, P.A., Miami, and Clark Robb Mason Coulombe & Buchman, Coral Springs, for appellee State Farm Fire and Casualty Company.
   MAY, C.J.

The plaintiffs appeal an order granting the defendants’ motion for a new trial based upon the failure of two jurors to disclose their involvement in other litigation. They argue the court abused its discretion in granting the new trial. We agree and reverse.

While the husband was running an errand for his employer, he was rear-ended by a vehicle driven by the individual defendant. He and his wife sued the driver for negligence and the husband’s employer’s uninsured motorist’s carrier [UM carrier].

After the verdict was entered, the UM carrier filed a motion and an amended motion for new trial. One basis for the motion was the alleged non-disclosure of prior litigation history by two jurors. While the motion contained multiple other grounds, the trial court granted the new trial solely on the issue of juror nondisclosure.

During voir dire, the trial court told prospective jurors the case involved a rear-end accident for which liability was admitted, and the only issue was the amount of damages. The court then asked each juror in the first panel the following, or similar, question: “Have you ever been in court for any reason, traffic, divorce, whatever?” Some prospective jurors revealed traffic tickets, juvenile offenses, and divorces. Some panel members answered “no.”

Juror One was specifically asked and gave the following responses:

The Court: Have you ever been in court before?
Juror One: Yes, I’ve been in court before.
The Court: What kind of case?
Juror One: I guess it would be civil. I had a son that I had to be guardianship over his money when he was young.

When plaintiffs’ counsel asked prospective jurors about accidents that they were in, Juror One responded she was sideswiped by someone whose insurance paid for her damaged vehicle. When asked whether any juror had seen an occupational therapist, Juror One stated she had carpal tunnel surgery on both hands and went to an occupational therapist through worker’s compensation.

The UM carrier’s attorney then asked: Have any of you ever worked with individuals that claim they were injured on the job and you’re kind of looking at them and saying, come on, what [sic] going on here? Has everybody had that experience or had friends or so forth that sort of are taking advantage of the situation? Juror One, you’re kind of nodding your head, you’ve seen that? Juror One: Yes.

The UM carrier’s counsel asked prospective jurors about juries on which they had served. One prospective juror had been on a jury in a case where the UM carrier was the defendant. Thereafter both parties accepted Juror One.

The court then called in the second panel of prospective jurors, including Juror Two. The trial court did not question them at all, but allowed plaintiffs’ counsel to proceed. He began questioning Juror Two and the others about their residences, work, families, and jury service. Juror Two responded that she had been a juror in a criminal domestic violence case.

Plaintiffs’ counsel asked the new panel members if they had “ever been, other than possible jury service, have [they] ever been in court for anything?” After a couple answered, counsel went directly to Juror Two. “Have you ever been to court?”, to which she responded, “No.” The others either answered no or indicated their participation in traffic court.

When the UM carrier’s counsel questioned members of the second panel, he asked Juror Two about her job, which she had for twenty years. He finished his questioning quickly. When asked, both counsel accepted Juror Two.

When the UM carrier filed its motion and amended motion for new trial, it attached Case Summary sheets printed from the Broward County Clerk of Courts. The first was a case of Repeat Domestic Violence involving Juror Two. It indicated that a disposition had been entered, but not the nature of the disposition or whether Juror Two had been to court.

A Case Summary sheet for Juror One involved the approval of a minor’s settlement and indicated that Juror One was the defendant. Juror One was the defendant in an action for damages between $500 and $2500, and in five tenant eviction proceedings. Another Case Summary sheet showed a 2008 action against Juror One for damages between $500 and $2500. None of these matters were disclosed in response to the questions asked during voir dire. None of the Case Summary sheets revealed whether Juror One had been in court.

The trial court held two hearings on the motion for new trial. The UM carrier argued the civil claims and eviction actions against Juror One, the foreperson, were relevant and material and had not been disclosed. Plaintiffs’ counsel reminded the court that Juror One had been asked only if she had ever been in court, and that the litigation history was not material.

The trial court indicated it wanted to review the transcripts of voir dire, before making a decision on the issue. At the second hearing, the UM carrier presented an Order stipulating to the settlement of the 2008 claim against Juror One. It was signed by Juror One and by the county court on the same date. The UM carrier argued Juror One’s failure to disclose this information was a material misrepresentation. Plaintiffs’ counsel responded that the order did not establish that Juror One had been in court to sign the stipulation.

The trial court asked about the other cases involving Juror One; the UM carrier apprised the court of the other collection claim and the eviction proceedings. While admitting the paperwork did not prove that Juror One had actually been in court, the UM carrier argued that counsel should have had the opportunity to explore if Juror One felt victimized by a big corporation. Plaintiffs’ counsel reminded the court that the UM carrier had asked the jurors’ opinions about big corporations during voir dire.

The UM carrier also filed a copy of a Petition for Injunction for Protection Against Repeat Violence filed by Juror Two in 2000, and an Order of Dismissal of a Temporary Injunction for Protection Against Repeat Violence, indicating insufficient evidence. The UM carrier suggested the order had been handed to Juror Two in open court.

While expressing that he was bothered by the outcome, the trial court entered an order granting the motion for new trial based on the nondisclosure of litigation matters by Jurors One and Two. The court denied the motion in all other respects.

“A trial court’s order on a motion for new trial grounded on juror concealment of information is reviewed for an abuse of discretion.” Wiggins v. Sadow, 925 So.2d 1152, 1154 (Fla. 4th DCA 2006).

The premier case on juror nondisclosure is De La Rosa v. Zequeira, 659 So.2d 239 (Fla.1995). There, our supreme court reiterated the three-part test used to evaluate juror nondisclosure in the context of a motion for new trial. “First, the complaining party must establish that the information is relevant and material to jury service in the case. Second, that the juror concealed the information during questioning. Lastly, that the failure to disclose the information was not attributable to the complaining party’s lack of diligence.” Id. at 241. The plaintiffs argue that none of the three-part analysis was satisfied, and the trial court abused its discretion in granting the UM carrier’s motion for new trial.

The plaintiffs first argue the information omitted by the two jurors was not material. “The test is not simply whether information is relevant and material in general, but whether it is ‘relevant and material to jury service in the case.’ Roberts v. Tejada, 814 So.2d 334, 340 (Fla.2002) (quoting De La Rosa, 659 So.2d at 241). “Materiality must be analyzed on a case-by-case basis....” Id.

Juror Two filed a domestic violence petition in 2000, nine years before the trial in this case. And, she admitted during questioning having been involved as a juror in a similar action. Not only are the two cases dissimilar in nature, they are remote in time. It is highly unlikely the UM carrier would have peremptorily challenged Juror Two on this basis. Juror Two’s nondisclosure was not material to jury service in this case.

The litigation history of Juror One is less clear. The collection and eviction matters were dissimilar to the present case and involved small sums of money, but that alone does not make the litigation history immaterial. See De La Rosa, 659 So.2d at 241 (acknowledging that prior litigation might be dissimilar, but the information is not rendered immaterial). However, the UM carrier’s counsel accepted other jurors who disclosed prior insurance claims and car accidents with injuries. Even Juror One admitted to a prior car accident in which she was paid for vehicular damage and a worker’s compensation claim for which she received occupational therapy. Given these facts, it is difficult to conclude the litigation history was material to her service on this jury. Regardless, the other two parts of the analysis weigh against a new trial.

The second part of the analysis concerns the juror’s concealment of information. In order to establish concealment, “ ‘the moving party must demonstrate (among other things) that the voir dire question was straightforward and not reasonably susceptible to misinterpretation.’ ” Birch v. Albert, 761 So.2d 355, 360 (Fla. 3d DCA 2000) (quoting Tejada v. Roberts, 760 So.2d 960, 963 (Fla. 3d DCA 2000)). “[A] juror’s answer cannot constitute concealment, where the juror’s response ... about litigation history is ambiguous, and counsel does not inquire further to clarify that ambiguity.” Id. at 358.

Here, both jurors were simply asked if they had been in court. The UM carrier was unable to establish that Juror One had ever actually been in court. Juror One was not asked if she had been involved in litigation, had been a party or witness, or asked any details concerning other litigation. In fact, when Juror One explained her involvement in a guardianship matter, no further questions were asked. Juror Two actually revealed that she had been a juror in a domestic violence case, but again no further inquiry was made. Because the question concerning their presence in court was very generic, it could easily have been understood to refer only to times the prospective jurors were actually in court. We cannot say these jurors concealed facts now claimed to be material to their service as jurors in this case. See, e.g., Simon v. Maldonado, 65 So.3d 8 (Fla. 3d DCA 2011) (finding the elements of concealment and due diligence were not demonstrated).

The third step in the analysis requires us to review counsel’s “due diligence.” Here, both jurors admitted some litigation history, but no questions were asked to develop information that may have caused the UM carrier to challenge them. Quite simply, the jurors were not asked pertinent questions to elicit information about their litigation history. The UM carrier cannot now fault the jurors for not being more forthcoming given the very basic question asked of them.

While the UM carrier did not have the benefit of all the litigation history of these two jurors, there was no evidence of active concealment, and no evidence of diligence on the part of trial counsel to seek additional information. While we cannot say that the litigation history of Juror One was not material, the other two prongs of the analysis were not satisfied. A review of the transcript reveals the trial court leaped to the conclusion that a new trial was warranted simply because the two jurors had been involved in other litigation regardless of the fact that no one bothered to ask them. We find an abuse of discretion in the trial court’s granting a new trial.

Reversed and Remanded for Reinstatement of the Jury Verdict.

TAYLOR and CONNER, JJ., concur.

      . The jurors will be referred to as Juror One and Juror Two for ease of reference.


text:
    Gerardo Gabriel GUZMAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4041.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 21, 2011.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

Criminal punishment of juvenile offenders and the United States Constitution come face to face in this appeal. The defendant appeals his life sentence on a violation of probation stemming from his conviction on multiple felony charges when he was fourteen years of age. He argues, among other issues, that the Eighth Amendment’s protection against cruel and unusual punishment prohibits the court from imposing a life sentence without the possibility of parole for a crime, other than homicide, committed while he was under the age of eighteen. We agree and reverse on this issue. The remaining issues are either moot or without merit.

At the age of fourteen, the defendant committed several violent robberies of senior citizens. The State charged the defendant as an adult with four counts of robbery, two counts of battery on a person over sixty-five, one count of aggravated battery on a person over sixty five, one count of battery, and one count of burglary of a conveyance with an assault or battery. The defendant entered an open plea of guilty on all charges.

The court wanted to craft a sentence which could rehabilitate the defendant while ensuring public safety. The State suggested that the court sentence the defendant on the burglary of a conveyance with an assault or battery, a life felony, to adult probation to run consecutive to other juvenile sanctions. After some discussion with the prosecutor and defense counsel, the court adjudicated the defendant delinquent and committed the defendant to a maximum risk residential commitment program for an indeterminate period of time, followed by juvenile probation, not to exceed his nineteenth birthday. Upon his nineteenth birthday, the defendant would begin serving fifteen years of adult probation on the life felony charge. The defendant did not object to the sentence and did not appeal.

Shortly after the defendant turned eighteen, he was charged with the kidnapping and false imprisonment of his cousin with the intent to terrorize him. The probation officer also filed an affidavit and warrant for violation of probation.

While the jury was deliberating the kidnapping charge, the trial court conducted the final violation hearing based partly on evidence it heard during the trial. The State also called the defendant’s probation officer. The defendant testified that he knew he was not permitted to commit new crimes while on probation.

The court found the defendant had violated his probation. The jury found the defendant guilty as charged. At the sentencing hearing, defense counsel asked for a youthful offender sentence; the State requested a life sentence. The trial judge explained:

I understand that young people sometimes do stupid impulsive things.... [ ][A]nd I’ll give them a break and withhold and rehab and counseling and treatment and all that stuff, even though the law tells me I’m suppose[sic] to punish them, I have a soft spot in my heart for young people that do stupid impulsive things....
[ ][T]his is a different — entirely different creature. This is not even in the same league as the young kid doing something stupid and impulsive, these are really, really serious crimes that, [ ] represent a danger to the community .... [and] the means by which to effectuate the robbery was to go out and purposely target the weakest, most vulnerable among us, including an 80-year-old woman, and batter them, one of them batter[ed] them in a severe way, that’s not something any 13 or 14-year-old kid would do under the influence of anyone. That’s — that’s sociopathic behavior. That’s scary behavior.... This — this is predatory reprehensible violent conduct that no one would do under any stretch of the imagination.
Nevertheless, the Court System recognized that he was young, that he was youthful, that he was perhaps under the sway or influence or dominion of this older reprehensible guy that picked him up and plied him — and they gave him the break of a lifetime, a bunch of juvenile sanctions and probation on a first PBL....
But instead in 2007 no longer the young naive little 14 or 15-year-old, he goes out and commits another crime of violence, kidnapping, [ ] which he was found guilty following a jury trial. [ ][A]gain, predatory type sociopathic type behavior. And for the protection of the public ... I’ll revoke and terminate his probation unsuccessfully for the burglary of a conveyance with an assault or battery, adjudicate him guilty, sentence him to life in prison....
... In [ ] the kidnapping, I will adjudicate him guilty, sentence him to life in prison.

The defendant filed a rule 3.800(b) motion asking the court to vacate his life sentences because they constituted cruel and unusual punishment. Fla. R. Crim. P. 3.800(b). The trial court denied relief. The trial court was aware of the cases then pending before the United States Supreme Court, but distinguished the present case because the defendant committed the kidnapping after he turned eighteen.

On appeal, the defendant now argues that the life sentence for burglary with an assault or battery violated the Eighth Amendment because he was fourteen years old when the crime was committed. The State responds that this case is distinguishable from Graham v. Florida, — U.S. -, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) because the defendant was eighteen when he committed the kidnapping, which served as the basis for the violation of probation.

Because we review this sentence in the context of a constitutional violation, our review is de novo. Zingale v. Powell, 885 So.2d 277, 280 (Fla.2004).

Our decision is controlled by the recent decision of the United States Supreme Court in Graham. There, the Court held that “[t]he Constitution prohibits the imposition of a life without parole sentence on a juvenile offender who did not commit homicide.” Id. at 2034. The Court first examined sentencing practices in jurisdictions where life sentences without parole are permitted for juvenile offenders in non-homicide cases. The opinion referenced a study, which found Florida in the minority of jurisdictions that actually impose such sentences and accounted for the majority of juveniles serving life sentences without parole for non-homicide offenses. Id. at 2023.

Next, the Court undertook “consideration of the culpability of the offenders at issue in light of their crimes and characteristics, along with the severity of the punishment in question .... the Court also considered] whether the challenged sentencing practice serve[d] legitimate peno-logical goals.” Id. at 2026 (citations omitted). The Court paid particular attention to the differences between juveniles and adults. Id. The Court noted “juveniles have ‘a lack of maturity and an underdeveloped sense of responsibility’; they ‘are more vulnerable or susceptible to negative influences and outside pressures’ ... and their characters are ‘not as well formed.’ ” Id. (quoting Roper v. Simmons, 543 U.S. 551, 569-70, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005)). In addition, the Court noted “juveniles are more capable of change than are adults, and their actions are less likely to be evidence of ‘irretrievably depraved character’ than are actions of adults.” Id. (quoting Roper, 543 U.S. at 570, 125 S.Ct. 1183).

When considering the penological goals of a life sentence without parole, the Court cautioned that “[b]ecause juveniles’ ‘lack of maturity and underdeveloped sense of responsibility ... often result in impetuous and ill-considered actions and decisions,’ they are less likely to take a possible punishment into consideration when making decisions.” Id. at 2028-29 (citation omitted); see also Bell v. Haws, No. CV09-3346, 2010 WL 3447218, at *10 (C.D.Cal. July 14, 2010). By imposing a life sentence without the possibility of parole, the State effectively denies a juvenile “any chance to later demonstrate that he is fit to rejoin society based solely on a non-homicide crime that he committed while he was a child in the eyes of the law. This the Eighth Amendment does not permit.” Graham, 130 S.Ct. at 2033.

Here, the defendant is a member of that limited class of people, juvenile offenders who have committed non-homicide crimes, protected by the Eighth Amendment. See Bell, 2010 WL 3447218, at *10. The defendant was originally arrested when he was fourteen years old. Although he was an adult when he violated his probation, the probationary sentence was imposed for crimes he committed when he was fourteen. Under Graham, such a sentence violates the Eighth Amendment and is unconstitutional.

The State argues that this case is distinguishable from Graham because the defendant was eighteen when he committed the offense that violated his probation. While true, he was separately sentenced to life for the new crime he committed when he was eighteen. He cannot, however, receive a life sentence for the crimes he committed when he was fourteen years old.

Graham fashioned a bright line rule prohibiting the imposition of a life sentence without parole on a person who commits an offense, other than a homicide, while under the age of eighteen. See also Lavrrick v. State, 45 So.3d 893 (Fla. 3d DCA 2010) (reversing a life sentence imposed on an eighteen-year-old defendant for violating probation imposed for non-homicide offenses committed while he was sixteen). Any deviation from that rule casts doubt on the very underpinnings of the Supreme Court’s decision. We therefore reverse the life sentence on the violation of probation and remand the case to the trial court for resentencing on the violation only.

Reversed and Remanded.

DAMOORGIAN and CONNER, JJ., concur.

      . Because Florida abolished parole, a life sentence is without the possibility of parole. See § 921.002, Fla. Stat. (2007) ("The provisions of chapter 947, relating to parole, shall not apply to persons sentenced under the Criminal Punishment Code.”).

      . The State direct filed against the defendant, pursuant to section 985.557, Florida Statutes (2007).

      . Paolo G. Annino, David W. Rasmussen & Chelsea B. Rice, Juvenile Life Without Parole for Non-Homicide Offenses: Florida Compared to Nation (FSU College of Law, Public Law Research Paper No. 399, Sept. 14, 2009), available at http://papers.ssm.com/sol3/ papers.cfm?abstract_id= 1490079.


text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. Gerolyn SHAPIRO, Appellee.
    No. 4D10-741.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 21, 2011.

      Todd D. Engelhardt and Robert J. Snif-fen of Sniffen & Spellman, P.A., Tallahassee, for appellant.
    Julie H. Littky-Rubin of Clark, Fountain, La Vista, Prather, Keen & Littky-Rubin, West Palm Beach, and Isidro M. Garcia of Garcia Law Firm, P.A., West Palm Beach, for appellee.
   MAY, C.J.

The Florida Department of Children and Families (DCF) appeals a judgment in favor of a terminated employee based on two claims of discrimination and one claim of retaliation. It argues the trial court erred in failing to direct a verdict in its favor because the plaintiff failed to prove a prima facie case to support each of the three claims. We agree and reverse.

The origin of the claims arose from the plaintiffs testimony in a 2001 grand jury proceeding. There, she testified that a coworker had been negligent in the supervision of an abused child under DCF supervision. The civil litigation arising from the grand jury testimony became known as the Amora case. Subsequent to her testimony, DCF provided the plaintiff with a $1,000 bonus, a scholarship to pursue a master’s degree, a special position, and several pay raises. The co-worker was terminated, but later reinstated and ultimately came to work under the plaintiffs supervision.

When the plaintiff was later terminated for breaking DCF policies, the plaintiff filed a complaint against DCF for violations of the Florida Civil Rights Act of 1992 (FCRA), sections 760.01-760.11 and 509.092, Florida Statutes (2007), and Florida’s Public Sector Whistle-blower’s Act (FPWA), sections 112.3187-112.31895, Florida Statutes (2007). She alleged that during the course of her employment, she was subjected to a hostile and abusive work environment due to her race and religion and DCF terminated her employment after she engaged in protected activity. She alleged the co-worker, and now subordinate, bore hostility toward her, was rude, made racial and religious slurs, and ultimately reported her to the Inspector General (IG) for violation of DCF policies. The IG’s investigation resulted in the plaintiffs termination from DCF, a sanction more severe than that imposed on other employees who also broke DCF rules.

The case proceeded to a jury trial. The plaintiff testified that she began working for DCF in 1995 as a child protective services investigator. In 2001, DCF instructed her to provide a chronology of events to determine whether DCF followed proper procedures in the Amora case. This led to her grand jury testimony against the co-worker.

In 2005, the plaintiff was promoted to the adult division where she became the supervisor of the reinstated co-worker against whom she had testified. When the plaintiff took over the co-worker’s supervision, the co-worker failed to report to work for thirty days. Upon the co-worker’s return, she was “nasty,” refused to talk to the plaintiff, and would “talk down” to her. The plaintiff alleged that the reinstated coworker accused her of not understanding “how people in the hood live” because the plaintiff is “white.” The co-worker told the plaintiff, “you’re White. You don’t get it. This is our culture.”

The plaintiff alleged that the co-worker made offensive religious comments. When the plaintiff brought her son to work, she commented on his hair and eye color, stating “[t]here is no way he is Jewish,” and that the boy “[didn’t] have a chance.” The co-worker wanted the plaintiffs son exposed to Jesus, and questioned if he would be kept in the plaintiffs “tribe.”

The plaintiff did not reprimand the coworker or downgrade her evaluations, but discussed the co-worker’s, behavior with her two succeeding supervisors. Despite almost daily discussions with her supervisors, the co-worker’s comments continued. Neither her first supervisor nor the succeeding supervisor recalled the complaints.

In May 2006, the co-worker filed a complaint with the IG, alleging the plaintiff violated DCF’s policies regarding Random Moment Sampling. The co-worker alleged that the plaintiff instructed her staff to work on Medicaid cases during sampling to maximize federal reimbursements.

In June 2006, an anonymous report accused the plaintiff of abusing her child, being a Wiccan, and forcing her son to undergo unnecessary medical procedures. Circumstantial evidence linked the report to the co-worker. Although an investigation resulted in a finding of no abuse or neglect, five DCF employees, within the plaintiffs district, accessed the report. An IG investigation found the employees violated DCF policy and section 39.205, Florida Statutes (2006).

At the end of her case, the plaintiff read excerpts from a discovery deposition of the DCF district administrator into the record. The testimony focused on the administrator’s termination of the plaintiff based on the IG report and without an independent investigation or consideration of the plaintiffs “side of the story.” Other testimony reflected the administrator knew virtually nothing about the plaintiffs grand jury testimony or the Amora case with the exception of the resulting verdict.

When the plaintiff rested, DCF moved for directed verdict. It argued the plaintiff had failed to establish a prima facie case of discrimination, hostile work environment, or retaliation. The court denied the motion without prejudice. DCF renewed its motion for a directed verdict at the close of the plaintiffs rebuttal testimony. The trial court reserved ruling.

DCF called the district administrator as a witness. He testified that he knew nothing about the plaintiff until he saw the IG’s report regarding Random Moment Sampling. He confirmed his lack of knowledge of her race or religion and her involvement in the Amora case.

The IG’s report revealed that the plaintiff violated DCF’s policies. Specifically, the report found: (1) the plaintiff signed forms and distributed them to her employees in advance of the random sampling moments; and (2) the plaintiff directed her employees to prefer Medicaid cases over other cases during sampling. The IG report named numerous witnesses, other than the plaintiff, who were interviewed during the investigation.

The district administrator terminated the plaintiff based solely on the IG report. He found her actions violated DCF rules governing management of employees and defied DCF’s mission and values. He did not speak with the plaintiff before terminating her. Instead, he sent a standard termination letter, which terminated her because she was a selected exempt service employee, who served at the pleasure of the agency head. The letter did not refer to her race, religion, or grand jury testimony.

The district administrator further explained the sanctions imposed on the five employees, who illegally accessed the child abuse report against the plaintiff. Three were African-American, one was white, and one was of East Indian descent. During the investigation, the East Indian employee resigned; two other employees were employed by a different district. The two remaining employees, one white and the other African-American, were allegedly given final notices of counseling, a step before dismissal. The white employee, however, testified that he was terminated. The three African-American employees remained employed with DCF.

Despite his deposition testimony, the district administrator admitted knowledge of the Amora case, the IG investigation of the employees who accessed the child abuse report against the plaintiff, and the co-worker having initiated the complaint to the IG against the plaintiff. Although neither the plaintiffs supervisor nor the IG recommended dismissal, he terminated the plaintiff. He found the employees that had illegally accessed the abuse report against the plaintiff did not warrant termination because no “malice” or “ill will” was found. He admitted however there was no evidence that the plaintiff had acted maliciously, and that he had never before terminated anyone based solely on an IG report.

The jury awarded the plaintiff $1,010,000 in total damages, finding DCF retaliated against her for the grand jury testimony, subjected the plaintiff to a hostile and offensive work environment, and discriminated against her because of her race and religion. DCF moved to set aside the jury’s verdict. The court denied the motion. DCF now appeals the judgment.

This Court reviews a trial court’s ruling on a motion for a directed verdict de novo. Meruelo v. The Mark Andrew of the Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009). This Court “ ‘must view the evidence and all inferences of fact in a light most favorable to the nonmoving party-’” Id. (quoting Frenz Enters., Inc. v. Port Everglades, 746 So.2d 498, 502 (Fla. 4th DCA 1999)).

DCF argues the hostile work environment claim failed because the alleged conduct was not sufficiently severe or pervasive to alter the terms and conditions of employment. DCF next argues the discrimination claim fails because the plaintiff produced no evidence that she was terminated because of her race or religion. And last, DCF argues the whistleblower claim failed because there was no evidence the district administrator had knowledge of her grand jury testimony and there was a substantial amount of time between that testimony and the plaintiff’s termination.

Hostile Work Environment Claim

Harassment is actionable when it is “sufficiently severe or pervasive to alter the terms and conditions of employment and create a discriminatorily abusive working environment.” Mendoza v. Borden, Inc., 195 F.3d 1238, 1245 (11th Cir.1999). An environment must be both objectively and subjectively offensive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993). In determining whether harassment objectively altered an employee’s terms or conditions of employment, courts consider “the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.” Id. at 23, 114 S.Ct. 367. “[Ojffhand comments and isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment.’ ” Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).

Here, the co-worker’s racial and religious comments were not objectively severe or pervasive to alter the terms and conditions of the plaintiffs employment. The plaintiff testified that during one exchange between them, the co-worker made the following racial comment: “ ‘You don’t get it. You don’t know how people in the hood live. And this is acceptable behavior .... You’re White. You don’t get it. This is our culture....’” This single statement does not rise to the level of an actionable claim under FCRA.

As to the religious comments, the plaintiff testified:

There were a couple [of] different occasions where I needed to bring [my son] to work with me because of an appointment or no babysitter.... She would say, “Oh, this poor kid doesn’t have a chance, you know, being raised by a Jewish mother.” And you know, “Look at him. He is blond, blue-eyed. There [is] no way he is Jewish.” And, you know, “Are [you] going to raise him Jewish? He’s not Jewish. Look at him.” And I was like bewildered. And she would say, “Are you exposing him to Jesus?[ ] Are you going to keep him in your tribe?”

The plaintiff failed to establish that the comments were frequent. She testified to only one specific racial comment and one specific religious comment that she said occurred on a “couple different occasions.”

Although the comments were discriminatory and offensive to the plaintiff, they did not establish that the workplace was “permeated with ‘discriminatory intimidation, ridicule, and insult.’ ” Harris, 510 U.S. at 21, 114 S.Ct. 367 (quoting Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986)). This is particularly true given the comments were made by a subordinate whom the plaintiff supervised. Accordingly, the trial court erred in not granting DCF’s motion for a directed verdict on the plaintiffs hostile work environment claim. See Barrow v. Ga. Pac. Corp., 144 Fed.Appx. 54, 57-58 (11th Cir.2005) (holding employee failed to establish that alleged racial harassment, which included racial symbols of a rebel flag, “KICK”, and a noose, and racial slurs of being called “nigger,” “boy,” “black ass,” and “black boy” by various supervisors and superintendents, was sufficiently severe or pervasive to alter his working conditions); Alansari v. Tropic Star Seafood Inc., 388 Fed.Appx. 902, 904-05 (11th Cir.2010) (finding employee’s alleged religious harassment, “including solicitations to go to church because ‘Jesus would save’ him, comments about his Muslim religion, and the playing of Christian music ... may have been unwanted and even derogatory, but it did not rise to a threatening or humiliating level.”). Disparate Treatment Claim

DCF next argues the trial court erred in failing to direct a verdict or set aside the verdict on the plaintiffs discrimination claim based on her race or religion. A plaintiff may establish a prima facie case of discrimination under Title VII on the basis of direct or circumstantial evidence. Holifield v. Reno, 115 F.3d 1555, 1561-62 (11th Cir.1997).

Derogatory comments can be direct evidence of discrimination if the comments were made by the decision maker responsible for the alleged discriminatory act in the context of the challenged decision. Wheatley v. Baptist Hosp. of Miami, Inc., 16 F.Supp.2d 1356, 1359-60 (S.D.Fla.1998), aff'd., 172 F.3d 882 (11th Cir.1999). Here, the plaintiff failed to show that the district administrator, the sole decision maker in this case, made any racial or religious comments. This leaves the plaintiff with the allegation of discriminatory discipline.

In discriminatory discipline cases, “the Plaintiff must prove that he is a member of a protected class and either a) that he did not violate the work rule, or b) that he engaged in misconduct similar to that of a person outside the protected class, and that the disciplinary measures enforced against him were more severe than those enforced against the other persons who engaged in similar conduct.” Jones v. Winn-Dixie Stores, Inc., 75 F.Supp.2d 1357, 1364 (S.D.Fla.1999) (citing Jones v. Gerwens, 874 F.2d 1534, 1539-40 (11th Cir.1989)).

Employees are similarly situated when they are “involved in or accused of the same or similar conduct....” Holifield, 115 F.3d at 1562. Id. The most important factors “ ⅛ the disciplinary context ... are the nature of the offenses committed and the nature of the punishments imposed.’ ” Jones, 874 F.2d at 1539-40 (quoting Moore v. City of Charlotte, 754 F.2d 1100, 1105 (4th Cir.1985)). “[T]he quantity and quality of the comparator’s misconduct [must] be nearly identical....” Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999).

Here, the plaintiff introduced evidence that the district administrator terminated her based upon the findings in the IG report, while the district administrator did not terminate three African-American employees, who the IG also found violated DCF policy and criminal laws, for accessing a confidential child abuse report. During the IG investigation, those employees admitted to accessing the report purely for “personal” reasons.

Neither the comparable persons nor the comparable acts were similar. Illegally accessing child abuse reports is a less serious crime than Medicaid fraud. Further, the plaintiff was a supervisor, the other employees were subordinates. These are distinctions that justify the disparate imposition of sanctions. MacPherson v. Univ. of Montevallo, 922 F.2d 766 (11th Cir.1991); Winn-Dixie Stores, Inc., 75 F.Supp.2d 1357. The trial court should have either directed a verdict or set aside the verdict because the plaintiff failed to satisfy her prima facie case of discrimination.

Whistleblower Claim

DCF argues the trial court erred in denying the motion for a directed verdict regarding the plaintiffs whistleblower claim because the plaintiff failed to show a causal link between her grand jury testimony and her termination five and a half years later. We agree.

To establish a prima facie claim for retaliation under Florida’s Whistle-blower Act, sections 112.3187-112.31895, Florida Statutes (2007), a plaintiff must demonstrate: (1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal relation between the two events. Rice-Lamar v. City of Fort Lauderdale, 853 So.2d 1125, 1132-33 (Fla. 4th DCA 2003) (quoting Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998)).

To establish a causal connection, “ ‘a plaintiff need only show that the protected activity and the adverse action were not wholly unrelated.’ ” Brungart v. BellSouth Telecomms, Inc., 231 F.3d 791, 799 (11th Cir.2000) (quoting Clover v. Total Sys. Servs., Inc., 176 F.3d 1346, 1354 (11th Cir.1999)). Close temporal proximity between the protected activity and the adverse employment action can show that the two events were not wholly unrelated. Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir.2007). If there is a substantial delay between the two events, the plaintiff must present other evidence tending to show causation. Id.

A plaintiff can also meet the burden of causation by providing sufficient evidence that the decision maker was aware of the protected conduct at the time of the adverse employment action. Brungart, 231 F.3d at 799-800. Alternatively, a plaintiff can establish causation under a “cat’s paw” theory when the harasser is not the decision maker. Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir.1998). Under the “cat’s paw” theory, the decision maker acts in accordance with the harasser’s decision when the decision maker fails to conduct an independent investigation, and instead rubber stamps the recommendations of the harasser. Id.

Here, the plaintiff failed to establish temporal proximity between the protected activity and her termination. She alleged that she was terminated in August 28, 2006 as retaliation for her grand jury testimony in January 2001. Between the grand jury testimony and her termination, DCF awarded her a $1,000 bonus, an academic scholarship, a position created for her, several pay increases, and a promotion.

Having failed to show a close temporal proximity between the two events, the plaintiff was required to provide other evidence showing causation, such as knowledge or the “cat’s paw.” Despite reading numerous portions of the district administrator’s testimony, the plaintiff never established he had knowledge of the Amora case. In fact, the deposition testimony read to the jury during the plaintiffs case established that he did not have any knowledge of the grand jury testimony, and only remembered hearing about a verdict in the Amora case. The plaintiff further failed to establish that the IG, who conducted the Random Sampling investigation, had any knowledge of her grand jury testimony.

The plaintiff also failed to establish causation under a “cat’s paw” theory because an independent investigation was conducted by the IG. Although the investigation was prompted by the co-worker, the investigator interviewed twelve witnesses. The IG did not “rubber stamp” the allegations of the coworker. The IG found the plaintiff signed multiple forms in advance of sampling and distributed them to her employees in advance of the sampling moments. The district administrator testified that he terminated the plaintiff based on the IG report.

Nevertheless, the plaintiff argues the district administrator’s failure to investigate the matter himself, or conduct an interview of the plaintiff supports her claim. Sirpal v. Univ. of Miami, 684 F.Supp.2d 1349 (S.D.Fla.2010). Unlike Sirpal, here an independent investigation was conducted. The IG is by statute an independent investigative department. § 20.055(3)(b), Fla. Stat. (2007).

The plaintiff failed to establish her pri-ma facie case of causation. She failed to establish a close temporal proximity between the protected conduct and her termination; she failed to prove the district administrator’s knowledge of her protected conduct; or that he “rubber stamped” the co-worker’s allegations by failing to conduct an investigation. The lack of proof in this case warranted a directed verdict for DCF. The trial court erred in denying DCF’s motions. We therefore reverse and remand the case for entry of a judgment for DCF.

Reversed and Remanded.

DAMOORGIAN and CONNER, JJ., concur.

      . The plaintiff brought retaliation claims under both FCRA and FPWA. However, the jury found in favor of DCF on the FCRA retaliation claim.

      . Random Moment Sampling is a methodology used by DCF to conform to federal reporting requirements associated with Medicaid reimbursement to state agencies.

      . The plaintiff argues that the district administrator did have knowledge of the Amora case because he was impeached several times during his cross-examination in which he admitted knowledge although he denied any knowledge in his deposition. While this is correct, his admission occurred after DCF’s motion for directed verdict.


text:
    Darryl Solomon HOPE, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3721.
    District Court of Appeal of Florida, Fourth District.
    July 27, 2011.
    Rehearing Denied Sept. 9, 2011.
    Darryl Solomon Hope, Jessup, GA, pro se.
    No appearance required for appellee.
   WARNER, J.

Appellant challenges the denial of his motion for postconviction relief from his 1990 conviction for robbery based upon his plea. Appellant claims that he has exonerating newly discovered evidence in the form of an affidavit from the victim of his crime, signed twenty years later, stating that appellant was not involved in the robbery. We affirm the denial.

In his original statement to the police, the victim, Coleman, stated that he saw appellant with a big pistol across the street from a restaurant which Coleman and his girlfriend were exiting. Another man came around the corner and robbed them. Both men hopped into the same car and drove away. Coleman knew both men and in a deposition testified that the way appellant was acting indicated that he was part of the robbery plan. Moreover, Coleman saw appellant later, and appellant informed Coleman that he had told the co-defendant not to mess with anyone he knew, so he didn’t know why the co-defendant robbed Coleman. In his deposition prior to trial, Coleman testified that appellant did not play a major part in the robbery.

Coleman’s new statement does not recant any of his prior statements. Instead, Coleman states that he was in court at the co-defendant’s plea hearing, at which the co-defendant took full responsibility for the robbery, claiming that appellant had nothing to do with it. Much later, Coleman was told by Ms. Peaches Taylor that appellant was not involved and was with her across the street from the robbery. Thus, based upon her statement he concludes that he was wrong in thinking appellant was a lookout person in the robbery.

This does not constitute a recantation of his statement based upon newly discovered evidence. In order to succeed on a claim of newly discovered evidence, the defendant must prove two factors. First, to qualify as newly discovered evidence, “the asserted facts ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known them by the use of diligence.’ ” Jones v. State, 591 So.2d 911, 916 (Fla.1991) (quoting Hallman v. State, 371 So.2d 482, 485 (Fla.1979)). Second, “the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Id. at 915.

Here, Coleman did not recant his statements about seeing appellant with a gun and driving away with the co-defendant, nor did he recant his conversation with appellant after the incident, which showed guilty knowledge on the part of appellant. The claim of newly discovered evidence is actually based on statements regarding appellant’s lack of involvement, which were made by the co-defendant at his plea hearing and by Ms. Taylor, who was a witness known by the appellant at the time of his plea. Both witnesses were available to appellant at the time of his plea, or, for a claim of ineffective assistance, within two years after appellant’s conviction and sentence. There is no manifest injustice in denying relief twenty years after appellant’s plea and conviction were entered.

For these reasons, we affirm the denial of the postconviction relief motion.

POLEN and TAYLOR, JJ., concur.

      . Any claim of ineffective assistance based upon failure to investigate the alibi is time-barred. See Fla. R. Crim. P. 3.850(b).


author: ALTENBERND, Judge.

text:
    Ryan GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-5592.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.
    Charles M. Britt, III, of Charles M. Britt, III, P.A., Bradenton, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Ryan Goodwin appeals his judgment and sentence as a principal to robbery with a deadly weapon. We affirm and briefly discuss one of the issues that he raises on appeal. We conclude that the jury was free to determine that the BB gun used in this robbery was a deadly weapon.

Mr. Goodwin drove the car for a robbery of a grocery store’s pharmacy. A Mr. Cavedo, Mr. Goodwin’s coperpetrator, entered the store and demanded “all of the Roxies and Oxies again.” Mr. Cavedo apparently had robbed the same pharmacist about six weeks earlier. When the pharmacist objected to being robbed twice, Mr. Cavedo pulled back his shirt and showed the pharmacist the black grip of what appeared to be a handgun. With that, the pharmacist complied with the request, and the two men drove away with the drugs.

During the investigation, it was determined that the gun that Mr. Cavedo used during this robbery was a BB gun — a Marksman Repeater Model 2002. The State presented evidence that the weapon was operable and capable of penetrating cardboard from close range. Mr. Goodwin presented expert testimony that the weapon could not penetrate the eye of a dead pig when loaded with BBs. The gun had a projective velocity of approximately 200 feet per second, which the expert testified was insufficient to pierce human flesh.

The weapon used in this case is essentially identical to the weapon used in Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA 1997), approved, 703 So.2d 1062 (Fla.1997). Admittedly, the testimony concerning the gun’s characteristics is more extensive in this case than it was in Mitchell. Nevertheless, the gun will fire BBs, pellets, or darts and comes with danger warnings on the box. In some states, this weapon is actually regarded as a firearm. See, e.g., State v. Grant, 294 Conn. 151, 982 A.2d 169 (2009); Holloman v. Commonwealth, 221 Va. 196, 269 S.E.2d 356 (1980). For the same reasons that we affirmed the trial court in Mitchell, we affirm the trial court today. See also Dale v. State, 703 So.2d 1045 (Fla.1997).

We recognize that there is a worthy argument that a low-velocity BB gun should be excluded from the definition of a deadly weapon. See id. at 1048 (Overton, J., dissenting). Such a weapon is already excluded from the definition of a firearm because the projectile is not expelled as a result of an explosion. See § 790.001(6), Fla. Stat. (2007). This is not a case in which the weapon involved in the offense was never recovered. In this case, it is undisputed that the low-velocity BB gun was the weapon involved in the offense. Here, the defendant took the affirmative step of providing evidence that the weapon could not easily cause great bodily harm. Conceivably, we could fashion a special rule that removes the issue of whether a weapon is deadly from the jury under these circumstances, but not under circumstances where the weapon is not recovered and the defendant merely claims that the weapon was a BB gun. Fourteen years ago in Mitchell, we suggested that a statutory definition of “deadly weapon” would be useful. Today we reiterate that suggestion.

Affirmed.

SILBERMAN, C.J., and VILLANTI, J., Concur.


author: WOLF, J. THOMAS, J.

text:
    Elizabeth R. BAINBRIDGE, Appellant, v. James Lawrence PRATT, Jr., Appellee.
    No. 1D10-6791.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.

      Mark J. Fraser, Gainesville, for Appellant.
    No appearance for Appellee.
   WOLF, J.

The mother challenges a final judgment determining a parenting plan for the minor child which requires the school-age child to move annually between the mother’s and father’s homes, which are more than 300 miles apart. She raises a number of issues on appeal, two of which we determine have merit. Specifically, she asserts (1) the trial court violated her due process rights by establishing an annual rotating parenting plan for the minor child which neither parent pleaded for, nor requested at the final hearing, and (2) the trial court abused its discretion where there was no competent substantial evidence supporting that the ordered parenting plan was in the best interests of the minor child.

The mother and the father, who were unmarried, had a daughter on September 19, 2001. In 2004, the parents decided to separate, with the mother and the minor child moving to Gainesville and the father remaining in Orlando. The minor child would generally spend weekends with the father in Orlando and would communicate with him during the week via telephone. This arrangement existed harmoniously until May 2010, when the father married another woman and moved to Shalimar, Florida, some 306 miles away from Gaines-ville. Around this time, the parties began to disagree regarding the time-sharing of the minor child. On June 17, 2010, the father filed a complaint to establish a parenting plan and time sharing. At the time of the hearing, the minor child was nine years old and in the third grade. Neither party requested an annually rotating parenting plan in the pleadings or at the hearing.

At the hearing, the mother testified that her main reason for moving to Gainesville was that most of her extended family resided in or around the area, including the minor child’s maternal grandparents. The mother was studying to be a nurse, and her mother’s extended family was helpful in providing emotional support and care for the minor child. In particular, the minor child’s maternal grandmother picked her up from school when the mother was unable to do so because of her college schedule.

The mother further testified that the minor child was a “high maintenance” child who was easily distracted and in need of special care. The minor child had been diagnosed with attention deficit hyperactivity disorder (ADHD). She was enrolled in a special Title I program for children with learning troubles. The mother had been the primary advocate for the minor child in school, helping her with homework assignments and ensuring that she obtained the help she needed.

The father testified and corroborated much of the mother’s testimony. In addition, the father stated that he had a very good relationship with the minor child and tried to spend time with her as much as possible. He believed that the minor child got along well with both her newborn half-brother and her step-siblings.

At the conclusion of the hearing, the trial court stated, “I think I am going to do something which I think is in [the minor child’s] best interests. You both may not be happy with my decision.” The trial court then entered a written final judgment ordering an equal, annually rotating time-sharing plan between the mother and the father. The trial court had not previously discussed the possibility of this type of parenting plan, nor had any expert testimony been presented about the viability of such plan. The order read in pertinent parts:

F. It is in the best interests of the minor child that the parties share parental responsibility for their child and that the child spend equal time with each parent, by rotating year to year between the residences of the parents, with the child finishing the 2010-2011 school year with her mother. The parties are coequal in all factors of Section 61.18(3) Florida Statutes although the Court has come [sic] concerns regarding the child’s school changes.
a. The home residence of the child shall rotate between the residences of the parties from year to year. The Mother’s residence is designated the child’s home residence for the purpose of maintaining a permanent address for the child’s school and medical records during the 2010-2011 school year until June 30, 2011 and alternate school years thereafter. The Father’s residence is designated the child home residence for the purpose of maintaining a permanent address for the child’s school and medical records during the 2011-2012 school year until June 30, 2012 and alternate school years thereafter. This designation does not carry with it any more status or power, or make one parent more in charge.

We reverse this parenting plan because, regardless of the bare assertion made by the trial court that this type of plan is in the “best interest of the minor child,” there is no evidence supporting this assertion. Specifically, while the trial court used the “magic words,” there is nothing in the record to support that this unusual arrangement, which forces a minor child with special needs to change schools and acclimate to new surroundings every year is, in fact, in the best interests of the child. The mere fact that the trial court feels both parents are equal under section 61.13(3) does not mean that this rotating parenting plan is in the best interest of the child.

Prior to 2008, the underlying rotating parenting plan was traditionally referred to as “rotating custody.” See Ch. 2008-61, § 6, at 792, Laws of Fla. Rotating custody covered similar plans that rotated the primary residential parent on an annual, semi-annual, or weekly basis. See, e.g., Chapman v. Prevatt, 845 So.2d 976, 979-80 (Fla. 4th DCA 2003); Ruffridge v. Ruffridge, 687 So.2d 48, 49 (Fla. 1st DCA 1997); Langford v. Ortiz, 654 So.2d 1237, 1238 (Fla. 2d DCA 1995).

Prior to 1997, Florida courts adhered to the presumption that rotating custody was presumptively disfavored. See, e.g., Ruffridge, 687 So.2d at 50; Langford, 654 So.2d at 1238. In 1997, the Florida Legislature enacted section 61.121, which stated “[t]he court may order rotating custody if the court finds that rotating custody will be in the best interest of the child.” Even after the enactment of section 61.121, courts continued to apply the presumption against rotating custody. See Cooper v. Gress, 854 So.2d 262, 266 (Fla. 1st DCA 2003).

However, in 2008, the Legislature abolished the concept of custody and replaced it with “parenting plans” and “time-sharing,” where neither parent is designated as the primary residential parent and both parents must comply with a parenting plan that sets out in detail each parent’s responsibilities and involvement in the minor child’s life. See Ch. 2008-61, § 8, at 742, Laws of Fla. The Legislature also modified section 61.13(2)(c)(l) to state, “[t]here is no presumption for or against the father or mother of the child or for or against any specific time-sharing schedule when creating or modifying the parenting plan of the child.” See Ch. 2009-180, § 3, at 1853, Laws of Fla. Thus, currently no presumption exists disfavoring the underlying time-sharing plan. However, as discussed below, there is no evidence that the specific nature of this time-sharing plan is in the best interest of the child.

Section 61.13(3)(a)-(t), Florida Statutes (2010), lists factors which are to be considered in determining the best interests of the child for the purposes of creating a parenting plan. In the instant case, the trial court dealt with all of the statutory factors in only two sentences in the order granting annual, rotating custody. While the trial court stated that it found all of the factors of section 61.13(3) equal with respect to each parent, it engaged in no discussion of these factors. Although there is no statutory requirement that a trial court engage in a discussion as to each of the factors, a discussion of the relevant factors can be helpful in determining whether the trial court’s judgment is supported by competent, substantial evidence. See Miller v. Miller, 842 So.2d 168, 169 (Fla. 1st DCA 2003); Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998). For the reasons stated below, we find that the trial court’s order granting an annual, rotating time-sharing plan was not supported by competent, substantial evidence.

Section 61.13(3)(e), Florida Statutes (2010), is of particular importance in the case of rotating custody and states, “[t]he geographic viability of the parenting plan, with special attention paid to the needs of school-age children and the amount of time to be spent traveling to effectuate the parenting plan” will be a factor in determining the bests interests of the child.

Further, previous case law has identified factors which cut in favor of ordering a rotating parenting plan. These factors suggest rotating time-sharing may be in a child’s best interest if: (1) the child was older and mature, Bienvenu v. Bienvenu, 380 So.2d 1164 (Fla. 3d DCA 1980); Gerscovich v. Gerscovich, 406 So.2d 1150 (Fla. 5th DCA 1981); (2) the child was not yet in school, Parker v. Parker, 553 So.2d 309 (Fla. 1st DCA 1989); Alexander v. Alexander, 473 So.2d 236 (Fla. 2d DCA 1985); Wilking v. Reiford, 582 So.2d 717 (Fla. 5th DCA 1991); (3) the parents lived near each other, Gerscovich; Parker; Bienvenu; (4) the child preferred rotating custody, Gerscovich; (5) the rotation would not have a disruptive effect on the child, Gerscovich; Bienvenu; (6) the periods of time spent with each parent were reasonable, Gerscovich; (7) the periods of custody were related to divisions in the child’s life, such as the school year, Bienvenu; and (8) severe acrimony and ill-will existed between the child’s parents. Sullivan v. Sullivan, 604 So.2d 878, 879 (Fla. 1st DCA 1992). While we acknowledge there is no longer a presumption to overcome, we feel that these factors are still useful in determining the best interests of the child, especially when considering section 61.13(3)(e) and the propriety of this type of time-sharing plan.

There is no evidence suggesting any of these factors are present here. In addition, the only evidence presented established the minor child was nine years old and not yet mature. She was of school age and was in third grade. The parents lived 300 miles apart. The minor child did not state she would prefer a rotating time-sharing plan. Given the minor child’s ADHD and specialized education curriculum, the rotation would have a disruptive effect on her as it would cause her to change schools every year. Annual, rotating time-sharing would deprive the child of the community she had become accustomed to over the past six years of her life. There was no evidence suggesting the length of the proposed time periods was in the minor child’s best interest. Last, the father testified that his relationship with the mother had been polite and cordial over the past six years.

Based on the foregoing, there was not sufficient evidence presented to support the trial court’s finding that this rotating time-sharing plan was in the best interests of the minor child. See Langford, 654 So.2d at 1238 (reversing bi-annual rotation order where the mother lived in North Carolina and the father resided in Florida, finding the requirement that a school age child switch school environments in the middle of the year was not in the child’s best interests); see also Chapman, 845 So.2d at 981 (reversing trial court’s order establishing annual, rotating custody where the parents lived in different states and the trial court made no findings that the children would be better suited by a rotating arrangement).

We further find the order must be reversed because under Florida law, a trial court may not order an annual, rotating time-sharing plan where neither parent requested such a plan in the pleadings, nor argued for the plan at the final hearing. See Moore v. Wilson, 16 So.3d 222, 223 (Fla. 5th DCA 2009) (holding the trial court violated the mother’s due process rights by ordering weekly rotating custody when weekly rotating custody was not brought up in the pleadings, nor at trial); Flemming v. Flemming, 742 So.2d 843, 844 (Fla. 1st DCA 1999). Florida courts have consistently held that “[it] is fundamental that a trial court is without jurisdiction to hear and determine matters that are not the subject of appropriate pleadings and notice.” Lamelas v. Granados, 730 So.2d 387, 388 (Fla. 2d DCA 1999). Courts have reasoned that a party’s due process rights are violated when a party is not given notice that the trial court would consider an issue or opportunity to be heard on the matter. See Moore, 16 So.3d at 224.

The instant case is very similar to Flem-ming, except that the facts of this case are even more compelling. In Flemming, the father requested rotating custody at the final hearing but not in any of the pleadings. 742 So.2d at 844. The mother objected because the topic had not been addressed in any of the pleadings. Id. Over the mother’s objection, the trial court ordered rotating custody between parents on a weekly basis. Id. On appeal, this court reversed and held that the trial court abused its discretion in ordering rotating custody because the mother was not put on notice that rotating custody was being considered. Id.

In the instant case, the first time such a plan was mentioned was when the trial judge said, “I think I am going to do something which I think is in [the minor child’s] best interests. You both may not be happy with my decision.” As a result, due process concerns require us to overturn the decision of the trial court.

For the foregoing reasons, the trial court abused its discretion in ordering the underlying time-sharing plan between the parents. Accordingly, the judgment of this trial court is REVERSED and remanded for further proceedings.

CLARK, J., Concurs; THOMAS, J., Concurs With Opinion.

THOMAS, J.

Concurring.

I concur, but write to rely on an additional ground on which to reverse: the Mother correctly argues that reversal is warranted pursuant to section 744.301, Florida Statutes. I agree with the Mother’s argument that because the Father never married her before the child’s birth, as the biological mother, she is entitled to a statutory presumption that she “is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.” § 744.301(1), Fla. Stat. (emphasis added). This unambiguous statute embodies the legislative judgment that a biological mother has a statutory preference to custody against a biological father. As such, that custody cannot be modified except by court order which, by law, must be based on a “substantial, material, and unanticipated change in circumstances and a determination that the modification is in the best interests of the child.” § 61.13(3), Fla. Stat. See also Wade v. Hirschman, 903 So.2d 928, 932 (Fla.2005) (holding “unless otherwise provided in the final judgment, the two-part substantial change test used in Cooper applies to modification of all custody agreements.”) (citing Cooper v. Gress, 854 So.2d 262 (Fla. 1st DCA 2003)).

I respectfully disagree with those decisions that have read section 744.301 as inapplicable where, like here, a biological father purportedly acts like a father. See, e.g., Stewart v. Walker, 5 So.3d 746, 749 (Fla. 5th DCA 2009) (citing State v. Earl, 649 So.2d 297, 298 (Fla. 5th DCA 1995)).

Section 744.301(1), Florida Statutes, provides:

The mother and father jointly are natural guardians of their own children and of their adopted children, during minority. If one parent dies, the surviving parent remains the sole natural guardian even if he or she remarries. If the marriage between the parents is dissolved, the natural guardianship belongs to the parent to whom custody of the child is awarded. If the parents are given joint custody, then both continue as natural guardians. If the marriage is dissolved and neither the father nor the mother is given custody of the child, neither shall act as natural guardian of the child. The mother of a child born out of wedlock is the natural guardian of the child and is entitled to primary residential care and custody of the child unless a court of competent jurisdiction enters an order stating otherwise.

Although it is correct that the first sentence of this section states, “The mother and the father jointly are natural guardians of their own children ...,” this sentence makes no reference to custody, which the statute clearly differentiates from guardianship. In fact, this first sentence, when read in the context of the sentences following, clearly contemplates a child born in wedlock, and is followed by the two possible scenarios in which the parents’ marriage can end: one parent dies and the surviving parent remains the child’s guardian even if that parent remarries, or the parents’ marriage is dissolved via divorce, and the child’s guardian is that parent to whom custody is awarded. The statute then also acknowledges that both formerly married parents can be given joint custody, in which case both parents continue as the child’s guardian (i.e., the status quo ante). Significantly, the statute does not include a presumption in favor of either parent concerning guardianship or custody in the event of the dissolution of marriage.

Contrast this with the remaining scenario the statute addresses: a child born out of wedlock. In that situation, the statute expressly provides that the mother is not only the child’s natural guardian, but is “entitled to primary residential care and custody of the child.” Id. The statute provides only one exception to this rule: when a court of competent jurisdiction enters an order stating otherwise. Thus, unlike in a situation where the parents’ marriage ends, the statute creates an express presumption in favor of the mother when the child is born out of wedlock.

Based on the foregoing, the legislature has clearly made the judgment, which it is entitled to do, that where a father has failed to marry the mother before the child is born, then the mother is entitled to custody of the child. This legislative judgment must be enforced by the judiciary, and not abrogated by crafting additional qualifications and limitations of the statute. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (reiterating that “courts of this state are ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.’ ”) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)). Such an interpretation violates Article II, section three of the Florida Constitution, which compels the judiciary to respect the legislature’s authority to make the law, which in the realm of family law, is broad indeed.

Here, the trial court’s ruling violates section 744.301 by ordering a change in the statutory entitlement to custody without any evidence of a material change in circumstances. Thus, I concur in the majority opinion but would also reverse on the basis of section 744.301, Florida Statutes.

      . A recent case, Mudafort v. Lee, 62 So.3d 1196 (Fla. 4th DCA 2011), appears to take the position that these factors enumerated in pre-2009 case law are no longer useful in crafting time-sharing plans and can be ignored. To the extent that is the position of the Fourth District Court of Appeal, we cannot agree. The factors are still useful in determining the propriety of this type of a relationship. See also Corey v. Corey, 29 So.3d 315, 321 n. 5 (Fla. 3d DCA 2009) (Schwartz, J., dissenting) (questioning whether the 2009 amendments, concerned mostly with changes in form and nomenclature, significantly affect previously established substantive case law), rev. granted, 36 So.3d 83 (Fla.2010).