text:
    MERCURY INSURANCE COMPANY OF FLORIDA, a Florida Corporation, Appellant, v. Regina JACKSON, as Personal Representative of the Estate of Shanesia Cox, Deceased, Regina Jackson and Joe Cox, as Parents and Natural Guardians of Diamond Cox, Joanne Carpio, as the Guardian of My’Zhane Cox, Earthy Baker as the Parent and Natural Guardian of Derica Neal, and Bryce Crosby, Appellees.
    No. 1D10-2138.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Kathy J. Maus of Butler, Pappas, Weih-muller, Katz, Craig, LLP, Tallahassee, and Anthony J. Russo of Butler, Pappas, Weih-muller, Katz, Craig, LLP, Tampa, for Appellant.
    Fred A. Cunningham of Slawson, Cunningham, Whalen & Gaspari, P.L., Palm Beach Gardens, and Louis K. Rosenbloum of Louis K. Rosenbloum, P.A., Pensacola, for Appellees.
   PER CURIAM.

Appellant, Mercury Insurance Company of Florida, appeals the trial court’s non-final order transferring venue of its declaratory judgment action from Leon County to Gadsden County. Because the totality of the circumstances supports venue in Gadsden County, we affirm.

Bryce Crosby, Appellant’s insured, was involved in an automobile accident in Gadsden County in which the minor children of Appellees were injured, one fatally. Ap-pellees, all of whom reside in Gadsden County, hired counsel located in Leon County. According to Appellant’s allegations below, Appellees’ counsel returned Appellant’s settlement check because of its “alleged failure to comply with the terms of his ‘global’ offer to settle the matter.” Appellees subsequently filed suit against Randall and Bryce Crosby, both of whom lived in Leon County when the accident occurred. Appellees accepted consent judgments from the Crosbys, and the Crosbys assigned to Appellees any right they had to bring an action against Appellant for allegedly acting in bad faith in the handling of their claim.

Prior to Appellees filing a bad faith action against Appellant in Gadsden County, Appellant sought a declaratory judgment in Leon County as to whether it had acted in good faith in adjusting the claims against the Crosbys. Appellees moved to transfer venue to Gadsden County, arguing that Leon County was not the proper forum for the case. During the hearing on the motion, both sides’ counsel acknowledged that the issue was whether Appellant failed to settle Appellees’ claims against the Crosbys. This appeal followed.

Actions must be brought in the county where the defendant resides, where the cause of action accrued, or where the property in litigation is located. § 47.011, Fla. Stat. While a trial court’s discretionary decision to change venue is reviewable under an abuse of discretion standard, the issue of whether venue is proper in a particular forum is not a matter of judicial discretion. Dive Bimini, Inc. v. Roberts, 745 So.2d 482, 488 (Fla. 1st DCA 1999). If there is no legal basis to support a plaintiffs choice of venue, the trial court must dismiss the case or transfer it to the appropriate venue. Id.

The issue in this case is where the cause of action accrued. A suit for declaratory relief does not itself constitute a cause of action for venue purposes. Royal Jones & Assocs., Inc. v. Cigna Ins. Co., 575 So.2d 309, 310 (Fla. 2d DCA 1991). Instead, it is the underlying relief sought that determines venue. Id. When an insured brings an action in Florida against his or her carrier for failure to settle a third party’s claim, the action sounds in contract. Swamy v. Caduceus Self Ins. Fund, Inc., 648 So.2d 758, 760 (Fla. 1st DCA 1994). A breach of contract action accrues for venue purposes where the contract was breached or, in other words, where the defendant failed to perform the covenant that was allegedly breached. Symbol Mattress of Fla., Inc. v. Royal Sleep Prods., Inc., 832 So.2d 233, 236 (Fla. 5th DCA 2002).

The Fourth District has recently addressed the issue of where a bad faith cause of action accrues for venue purposes. In American Vehicle Insurance Company v. Goheagan, 35 So.3d 1001, 1002 (Fla. 4th DCA 2010), the appellant insurance company appealed from an order denying its motion to dismiss or transfer venue of the case against it from Palm Beach County to Broward County, where its office was located. The underlying litigation arose from a car accident in Palm Beach County involving the appellant’s insured, a Palm Beach County resident, and a woman who died in Palm Beach County as a result of the accident. 35 So.3d at 1002. The decedent’s estate was opened in Palm Beach County. Id. After the insured was found liable, he assigned his claims against the appellant to the estate. Id. The estate filed suit against the appellant in Palm Beach County, alleging bad faith in its handling of its claims against the insured. Id. The trial court denied the appellant’s motion to transfer venue to Broward County. Id. The Fourth District affirmed, reasoning:

These duties [of good faith] included making a settlement offer and/or tendering the policy limits to the Estate, which was opened in Palm Beach County; investigating and evaluating the claim, when the accident occurred in Palm Beach County; and advising and warning Perkins [the insured], who resided in Palm Beach County, of possible outcomes, risks, and consequences. Although the physical location of the adjuster was in Broward County, the totality of the circumstances support venue being proper in Palm Beach County.

Id. at 1004.

Turning to the case before us, not only did the underlying accident occur in Gadsden County, the estate was also opened there. Any settlement would have ultimately been paid there as well, notwithstanding the fact that Appellees’ counsel was located in Leon County. Although the Crosbys resided in Leon County, this case, as the parties acknowledged below, was about the alleged failure to settle, not about the failure to warn or advise the Crosbys. As such, while an insured’s county of residence may be a significant factor in other cases where venue in bad faith actions is at issue, it is not a significant factor here. Based upon the unique facts presented in this case, we hold that the totality of the circumstances supports venue in Gadsden County.

Accordingly, the trial court’s order is AFFIRMED.

WEBSTER, DAVIS, and MARSTILLER, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Mark F. SWEITZER, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2695.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Mark F. Sweitzer, pro se, Appellant.
    Bill McCollum, Attorney General, Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   OPINION ON MOTION FOR REHEARING

PER CURIAM.

This cause is before us on Appellant’s motion for rehearing. We deny the motion for rehearing, but withdraw our former opinion of August 25, 2010, and substitute this corrected opinion in its place.

We affirm the trial court’s partial denial of Appellant’s Florida Rule of Criminal Procedure 3.800(a) motion requesting jail credit for time served while out on bond, but under some restrictions of his freedom, during the time his case was pending. We find Appellant’s appeal to be frivolous, and write to refer Appellant to the Department of Corrections for disciplinary procedures in accordance with section 944.279, Florida Statutes (2008). This opinion constitutes the written findings required under that section.

Judicial Inquiry and Findings

Appellant pled guilty to two counts of sexual battery by a person in familial or custodial authority, three counts of lewd or lascivious exhibition in the presence of a child, and two counts of lewd or lascivious molestation of a child. While the charges were pending, Appellant spent 35 days in jail, and an unspecified amount of time released on bond, during which he was required to wear a Global Positioning Satellite (GPS) monitor. After sentencing, Appellant filed a motion under Florida Rule of Criminal Procedure 3.800(a), essentially claiming that he should have received jail credit for the time spent on out bond with GPS monitoring because it was like being incarcerated. The court correctly denied Appellant’s argument, citing Young v. State, 697 So.2d 75, 77 (Fla.1997), and Toomajan v. State, 785 So.2d 1275, 1276 (Fla. 5th DCA 2001), for the holding that time spent on community control does not, by law, entitle him to credit for time served in jail. On appeal, Appellant merely reargues that the restrictions placed upon him while out on bond should count as time incarcerated.

A court may “at any time” determine whether a collateral criminal proceeding is filed in good faith. See § 944.279(1), Fla. Stat. (2008). The statute equates a lack of “good faith” with a determination that the collateral action was “frivolous.” See id.; § 944.28(2)(a), Fla. Stat. (authorizing the Department of Corrections to forfeit gain-time when an inmate files a “frivolous suit, action, claim, proceeding, or appeal”).

Appellant’s appeal is frivolous because the trial court clearly and unambiguously explained, in denying Appellant’s rule 3.800(a) motion, that credit would not be awarded for time spent while out on bond. This appeal could not have been filed in good faith because the law is well settled in this area. Time spent on community control is expressly prohibited from being credited towards a prison sentence. § 948.06(3), Fla. Stat. (2008) (“No part of the time that the defendant is ... in community control shall be considered as any part of the time that he or she shall be sentenced to serve.”); see State v. Cregan, 908 So.2d 387, 391 (Fla.2005); Young, 697 So.2d at 77; Walton v. State, 989 So.2d 729 (Fla. 4th DCA 2008). Therefore, it follows that a person who remains free while on pretrial release, despite some restrictions, is not entitled to credit this time towards his prison sentence. We do not address whether the trial court should have imposed sanctions under section 944.279, Florida Statutes, but note that under the plain terms of the law, any court is authorized to report a frivolous or malicious collateral criminal proceeding to the Department of Corrections for disciplinary proceedings.

We hold that Appellant’s appeal of the trial court’s order denying relief in this collateral criminal proceeding is frivolous. We direct the clerk of this court to forward a certified copy of this opinion to the appropriate correctional institution for the imposition of disciplinary proceedings against Appellant, in accordance with section 944.279, Florida Statutes (2004).

AFFIRMED. Certified Opinion FORWARDED to the Department of Corrections.

THOMAS, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Juan V. SIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-1903.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Juan V. Simmons, pro se, Petitioner.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. State v. Lazarte, 906 So.2d 314 (Fla. 4th DCA 2005); see also McKinney v. Yawn, 625 So.2d 885 (Fla. 1st DCA 1993).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Gregory Phillip GREEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4497.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Gregory Phillip Green, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See McCutcheon v. State, 44 So.3d 156 (Fla. 4th DCA 2010).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Cedric O. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4598.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Cedric O. Brooks, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    David V. MURPHY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4628.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      David V. Murphy, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Logan v. State, 846 So.2d 472 (Fla.2003); see also Sheppard v. State, 391 So.2d 346 (Fla. 5th DCA 1980).

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Glenn WHEELER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4888.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Glenn Wheeler, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    Takoya CRINER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3786.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Bernard F. Daley, Jr., Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the April 20, 2009, order which denied the motion for postconviction relief in Duval County Circuit Court case number 16-2002-CF-6549-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

HAWKES, C.J., VAN NORTWICK and THOMAS, JJ., concur.


text:
    Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellant, v. Kern DAVIS, Appellee.
    No. 1D10-3148.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Bill McCollum, Attorney General and C. Ian Garland, Assistant Attorney General, Tallahassee, for Appellant.
    Kern Davis, pro se, Appellee.
   PER CURIAM.

Appellant seeks review of the trial court’s sua sponte order transferring Davis’ petition for writ of mandamus to the circuit court in Columbia County where Davis is currently incarcerated. Appellant contends that venue was proper in Leon County because the petition challenges a prison disciplinary action. Davis concedes that the trial court erred in transferring the petition. We reverse.

In his petition, Davis raised six claims, four of which related to a disciplinary report, and two of which related to his placement in close management supervision and loss of visitation. Davis notes that the claims relating to his placement in close management and loss of visitation are moot, and had become moot prior the trial court’s transfer order, and he concedes that the proper venue for his remaining claims related to the disciplinary report is in Leon County where the Department of Corrections is headquartered. See Bush v. State, 945 So.2d 1207, 1213-14 (Fla. 2006). Accordingly, we reverse the trial court’s order transferring Davis’ petition for writ of mandamus and remand for consideration of the claims in the petition related to the disciplinary report.

REVERSED and REMANDED for further proceedings.

WOLF, ROBERTS and WETHERELL, JJ., concur.


text:
    Margaret M. SIDMAN, Appellant, v. Louis MARINO, III, Appellee.
    No. 1D10-2195.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Michael J. Korn of Korn & Zehmer, P.A., Jacksonville; and Patrick J. Kilbane of Rogers Towers, P.A., Ponte Vedra Beach, for Appellant.
    Scott Ellerin of Ellerin Hutchinson, Jacksonville; and Corrine A. Bylund of Zisser, Robison, Brown, Nowlis, Maciejew-ski & Cabrey, P.A., Jacksonville, for Ap-pellee.
   PER CURIAM.

Margaret Sidman appeals an order modifying the visitation arrangement contained in the consent decree she entered into with Louis Marino, III, in 2000. We find that the lower court abused its discretion by modifying visitation without competent, substantial evidence of a substantial change in circumstances. See, e.g., Jannotta v. Hess, 959 So.2d 378 (Fla. 1st DCA 2007).

Sections 61.13(2)(e) and (3), Florida Statutes, each require, proof that modification of a parenting plan and time-sharing schedule is in the best interests of the child and is based upon a substantial, material, and unanticipated change in circumstances. See Kelly v. Colston, 977 So.2d 692 (Fla. 1st DCA 2008); Krohn v. Foster, 856 So.2d 1130 (Fla. 1st DCA 2003); Buckingham v. Buckingham, 492 So.2d 858 (Fla. 1st DCA 1986). Although the evidence may have shown that increasing the father’s time with the child is in the child’s best interest, there was no evidence of an unanticipated and substantial change in circumstances. The father had merely begun exercising the full visitation rights allowed in the consent decree, and an additional weekly overnight that the mother had agreed to informally. As we have said regarding modification of custody arrangements, allowing an agreement between the parents to provide a basis for modification would discourage parents from making informal, joint decisions for the benefit of their children. See, e.g., Smoak v. Smoak, 658 So.2d 568 (Fla. 1st DCA 1995).

REVERSED and REMANDED.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    James E. HACK, Appellant, v. Chuck Norris DRYWALL/Amerisure Insurance Co., Appellees.
    No. 1D10-2041.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and James E. Hack, St. Petersburg, for Appellant.
    Carlos D. Cabrera of the Law Offices of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

An issue as to the scope of the Judge of Compensation Claims’ (JCC’s) jurisdiction or authority presents a question of law, subject to de novo review. See Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004).

Here, the JCC concluded that her entry of the order approving allocation of the settlement proceeds extinguished her jurisdiction over Hack’s verified petition for attorney’s fees and costs. Contrary to the JCC’s determination, entry of an order approving a settlement agreement does not, as a matter of law, extinguish the JCC’s jurisdiction over ancillary liens or claims for attorney’s fees and costs. See Sanders v. City of Orlando, 997 So.2d 1089, 1093-94, 1096 (Fla.2008) (holding JCC retains jurisdiction, following approval of settlement, to set aside settlement agreement based upon matters that may be discovered after execution of the agreement); see also Zaldivar v. Okeelanta Corp., 877 So.2d 927 (Fla. 1st DCA 2004) (holding JCC retains jurisdiction, following approval of settlement agreement, to adjudicate charging lien of claimant’s former attorney); Law Office of James E. Dusek, P.A. v. T.R. Enters., 644 So.2d 509 (Fla. 1st DCA 1994) (holding JCC had jurisdiction to determine value of services rendered by claimant’s former attorney after claimant and employer entered into settlement agreement approved by JCC). Indeed, “JCCs have exclusive subject matter jurisdiction over disputed workers’ compensation claim matters” and “a JCC may do all things conformable to law necessary to effectively discharge the duties of his office.” Sanders, 997 So.2d at 1094; see also § 440.33(1), Fla. Stat. (2008). Consequently, the JCC erred in determining she lacked jurisdiction over Hack’s claim for attorney’s fees and costs.

A review of the JCC’s order reveals she appeared to conflate the concepts of jurisdiction and the affirmative defenses of accord/satisfaction, release, waiver, and equitable estoppel. In the order, the JCC notes that attorney Hack was contacted at the time of settlement and represented a fee of only $686.46 and $1,426.04 in costs. Moreover, at the final hearing, the JCC questioned Hack about his failure to put the Employer/Carrier (E/C) on notice at the time of the mediation that he may have an additional claim for E/C-owed fees. Significantly, the JCC stated that “surely such a claim could have some bearing on the settlement negotiations” and suggested Hack’s actions equated to waiver. Thus, the JCC seemed to conclude that Hack agreed to accept only $2,112.50 in fees and costs and, by doing so, waived or released any additional claims for fees by failing to mention them during the mediation. To reach this conclusion, however, the JCC was required to assert jurisdiction, interpret the settlement agreement, and find Hack released or waived any additional claims for attorney’s fees and costs. Regrettably, the JCC did not reach the merits of Hack’s claim for additional fees and costs and, therefore, the JCC’s order must be reversed.

WOLF, ROBERTS, and WETHERELL, JJ., concur.


text:
    Joseph WEBSTER, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-1352.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Joseph Webster, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joe Belitzky, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of certiorari seeks review of administrative action taken by the Department of Corrections. See Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998). We grant the request for relief as to one issue, but deny the petition in all other respects.

Petitioner, an inmate, was found guilty of a disciplinary infraction concerning a mail violation. As punishment, petitioner received 30 days of disciplinary confinement and lost 60 days of gain time. He filed a petition for writ of mandamus in the circuit court arguing, among other things, that the loss of 60 days of gain time was illegal. The circuit court denied the petition for writ of mandamus.

Petitioner now seeks certiorari review. We find that petitioner was properly found guilty of the disciplinary infraction. However, the administrative rules of the Department of Corrections provide that the maximum penalty for a mail violation is 30 days of disciplinary confinement and the loss of 30 days of gain time. Fla. Admin. Code R. 33-601.314(9-14). Because the gain time forfeiture exceeded 30 days, petitioner is entitled to relief on that issue.

Accordingly, the order of the circuit court is hereby quashed and the cause is remanded for further proceedings. See Broward County v. G.B.V. Int’l, Ltd., 787 So.2d 838, 843-44 (Fla.2001) (holding that on second-tier certiorari review, the district court has only two options — it may either deny the petition or grant it, and quash the order under review, but the district court may not enter judgment on the merits, or direct the lower tribunal to enter any particular order); accord Tedder v. Fla. Parole Comm’n, 842 So.2d 1022 (Fla. 1st DCA 2003).

PETITION GRANTED IN PART, DENIED IN PART.

KAHN, VAN NORTWICK, and THOMAS, JJ., concur.


text:
    Scarlet HARMAN, Appellant, v. GADSDEN CORRECTIONAL FACILITY and AIG Claim Services, Inc., Appellees.
    No. 1D10-1227.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Bill McCabe of Shepherd, McCabe & Cooley, Longwood, and Thomas L. Furr, Panama City, for Appellant.

      Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation case, the claimant sought an orthopedic evaluation based on undisputed medical testimony that the evaluation was necessary to determine whether there were objective findings to support her claim of knee pain. The Judge of Compensation Claims initially denied the claim on the ground that section 440.09(1), Florida Statutes (2007), precluded an award because there were no objective relevant medical findings of an injury. On appeal, this court issued an opinion stating, in its entirety: “REVERSED and REMANDED. See Morrow v. Sam’s Club, 17 So.3d 763 (Fla. 1st DCA2009).”

On remand, the judge denied the evaluation, once again, this time finding that the medical referral was for a transfer of care rather than an evaluation. Although our earlier opinion in this case could have been more detailed, we conclude now, as we did then, that the evaluation is required by our holding in the Morrow case. Here, as in Morrow, the accident was accepted as compensable, the doctor could not find an objective basis for the claimant’s subjective complaints, the doctor recommended an evaluation to find such a basis, the employer and carrier refused to provide an evaluation on the ground that there were no objective relevant medical findings under section 440.09(1), and the judge erroneously accepted this position. The error is the same in both cases. The judge should have relied on section 440.13(2)(a), Florida Statutes (2007), and its test of whether the requested benefit is medically necessary, and not section 440.09(1), and its test of whether objective relevant medical findings exist to support an award. In the present case, the only doctor who addressed the issue testified that the evaluation was medically necessary.

The principle established in the Morrow decision cannot be avoided merely by characterizing the referral in this case as a transfer of care. This is a distinction without a difference. Even if the doctor’s request were for transfer of care, the transfer of care is for an evaluation. Moreover, to the extent a transfer of care is distinct from an evaluation, in that its purpose is to obtain proof of objective relevant medical findings; Morrow held that an evaluation is compensable even if it is “to determine whether there was an objective basis for [the] claimant’s symptoms.” 17 So.3d at 764.

For these reasons, we conclude that the claimant is entitled to relief. We reverse the order on the previous remand and remand the case once again with directions to enter an order requiring the employer and carrier to pay for the orthopedic evaluation and to award the claimant attorney fees and costs for the proceedings in the lower tribunal on this issue.

Reversed and remanded.

BENTON, PADOVANO, and CLARK, JJ., concur.


text:
    KFC/YUM! BRANDS and Gallagher Bassett Services, Appellants, v. Benjamin MOORE, Appellee.
    No. 1D10-0599.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Jennifer S. Haley-Gleason and Phillip Monte of the Law Offices Harbsmeier De-Zayas, LLP, Tallahassee, for Appellants.
    Bill McCabe of Shepherd, McCabe and Cooley, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the employer/carrier (E/C) argue that the Judge of Compensation Claims (JCC) erred in accepting the opinion of the claimant’s “longtime treating physician,” Dr. Florete, that the compensable aggravation to the claimant’s preexisting condition had not abated and required continued medical treatment. The E/C contend that because of an alleged conflict between one aspect of Dr. Florete’s testimony and the claimant’s medical history, the JCC should have rejected Dr. Florete’s opinion and instead accepted the opinion of Dr. Orr, who testified on behalf of the E/C that the aggravation to the claimant’s preexisting condition had abated. We summarily affirm pursuant to Florida Rule of Appellate Procedure 9.315(a) because the substance of Dr. Flo-rete’s testimony, when taken as a whole, is neither unreasonable nor illogical, has a legally sufficient foundation, and is thus, competent substantial evidence to support the JCC’s findings. See Fla. Detroit Diesel v. Nathai, 28 So.3d 182, 184-85 (Fla. 1st DCA 2010) (summarily affirming a workers’ compensation appeal that challenged a factual finding made by the JCC which was supported by competent substantial evidence); see also Wintz v. Goodwill, 898 So.2d 1089, 1093 (Fla. 1st DCA 2005) (explaining that the “standard of review in worker’s compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below” (quoting Mercy Hosp. v. Holmes, 679 So.2d 860 (Fla. 1st DCA 1996))); Swanigan v. Dobbs House, 442 So.2d 1026, 1027 (Fla. 1st DCA 1983) (explaining that this court will not “substitute [its] judgment for that of the [JCC] on factual matters supported by competent, substantial evidence, and appeals asking us to do so are frivolous”).

AFFIRMED.

WOLF, DAVIS and WETHERELL, JJ., concur.


text:
    Robert Wayne CONNELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4388.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    Robert Wayne Connelly, pro se, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Michael BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4811.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    Michael Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

WOLF, DAVIS, and WETHERELL, JJ., concur.


text:
    Tamara MIMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5178.
    District Court of Appeal of Florida, First District.
    Nov. 1, 2010.
    Tamara Mims, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO and CLARK, JJ., concur; BENTON, J., dissents.


author: WEBSTER, J.

text:
    STATE BOARD OF ADMINISTRATION, Appellant, v. Sharon R. HUBERTY, Appellee. Sharon R. Huberty, Appellant, v. State Board of Administration, Appellee.
    Nos. 1D09-5452, 1D10-0534.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.

      Cynthia S. Tunnicliff and Brian A. Newman of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for the State Board of Administration.
    Timothy P. Atkinson of Oertel, Fernandez, Cole & Bryant, P.A., Tallahassee, for Sharon R. Huberty.
   WEBSTER, J.

In these two consolidated appeals, the State Board of Administration seeks review of a final order of the Division of Administrative Hearings invalidating what the administrative law judge held was an unadopted rule interpreting section 121.4501(4)(a)l.a., Florida Statutes (2002), as permitting state employees to leave the Florida Retirement System Pension Plan and enroll in the alternative Investment Plan by telephone; and Sharon Huberty seeks review of a final order of the Board of Administration denying her request that she be permitted to rescind her election to enroll in the Investment Plan and be returned to the Pension Plan without having to pay the statutorily required buy-back amount. Because we conclude that the Board’s interpretation of section 121.4501(4)(a)l.a. as permitting state employees to leave the Pension Plan and enroll in the Investment Plan by telephone did not constitute an unadopted rule, we reverse the final order of the Division of Administrative Hearings. Because we conclude that there is no error of fact or law in the Board’s final order denying Ms. Huberty’s request that she be permitted to rescind her election to enroll in the Investment Plan and be returned to the Pension Plan without having to pay the statutorily required buy-back amount, we affirm that order.

In 2000, the Florida Legislature enacted section 121.4501, Florida Statutes, creating the Public Employee Optional Retirement Program, known as the “Investment Plan.” It is a defined contribution plan, whereas the Pension Plan is a defined benefit plan. In defined contribution plans such as the Investment Plan, the employee bears the risk of loss in the value of investments chosen by the employee. Before the adoption of section 121.4501, all state employees were covered by the Pension Plan, wherein retirement benefits are calculated based on a fixed formula, and the member bears no risk of loss. The Investment Plan became available to state employees during the summer of 2002. Section 121.4501(4)(a)l.a., Florida Statutes, provides that any employee electing to participate in the Investment Plan rather than the Pension Plan must do so “in writing or by electronic means.” The Board construed section 121.4501(4)(a)l.a. as permitting an employee to make that election by telephone, with the conversation recorded electronically and saved.

The deadline for existing employees, including Ms. Huberty, to elect to switch to the new Investment Plan was August 31, 2002. Before the deadline, all state employees had been sent an information booklet. The booklet explained the principal differences between the Investment Plan and the Pension Plan, warning that the value of the former would depend on the performance of the investments made. The booklet also explained that employees electing to switch to the Investment Plan would have one opportunity to switch back to the Pension Plan. It also explained, however, that those wishing to return to the Pension Plan would have to buy back in and that, if they did not have enough money in their Investment Plan at the time, they would have to make up the difference from other resources. Finally, the booklet advised that employees could make the election to switch to the Investment Plan either online or by telephone.

It is undisputed that, before making a decision, Ms. Huberty (who had a college degree and had completed one semester of work toward a master’s in business administration) spoke with her financial advisor at Raymond James regarding her options, and that the financial advisor recommended that she invest in four funds identified in the Investment Plan information. Ms. Huberty subsequently called the telephone hotline that had been established by the Board. From the transcript of the recording of the conversation between Ms. Huberty and the representative answering the call, it is clear that Ms. Huberty was electing to switch to the Investment Plan.

Following her enrollment in the Investment Plan, Ms. Huberty received quarterly reports for six years indicating her membership in that plan, and stating the value of her account and the performance of the funds she had selected. It was not until after the value of her investments had declined for almost a year that Ms. Huberty again called the hotline, complaining that she had just realized that she was enrolled in the Investment Plan, and did not understand how that could have happened.

In July of 2009, the balance in Ms. Hu-berty’s Investment Plan account was approximately $80,000.00 less than the amount required for her to buy back in to the Pension Plan. Ms. Huberty requested that she be permitted to transfer back to the Pension Plan without having to pay the buy-back cost. The Board denied her request, and she subsequently filed two petitions seeking administrative hearings-one requesting that she be permitted to return to the Pension Plan without having to pay the buy-back cost, and the other requesting that the Board’s use of a telephone hotline to permit employees to exercise their election to switch from the Pension Plan to the Investment Plan be determined to be invalid as an unadopted rule. The two petitions were consolidated. Following a hearing, the administrative law judge issued a final order holding that the Board’s use of the telephone hotline constituted an unadopted rule and, accordingly, invalidated that rule. The administrative law judge also issued a recommended order in which he reiterated that use of the telephone hotline constituted an invalid unadopted rule, but concluded that Ms. Huberty’s conduct for six years following her election to switch to the Investment Plan had ratified her initial election and that, accordingly, she should not be permitted to switch back to the Pension Plan without paying the required buy-back cost. The Board ultimately denied Ms. Huberty’s request that she be permitted to switch back to the Pension Plan without having to pay the buy-back cost. These two appeals follow.

Section 121.4501(4)(a)l.a. requires that the election to switch from the Pension Plan to the Investment Plan “be made in writing or by electronic means.” The adjective “electronic” is not further defined. The Board construed section 121.4501(4)(a)l.a. as permitting an employee to make that election by telephone, with the conversation recorded electronically and saved. As we have previously held, an agency’s interpretation of a statute is entitled to considerable deference, and “[a] reviewing court properly defers on questions of statutory interpretation to the agency to which the Legislature has given the responsibility and authority to administer the statute, unless the interpretation is clearly erroneous.” Okeechobee Health Care v. Collins, 726 So.2d 775, 778 (Fla. 1st DCA 1998). We see nothing to suggest that the Board’s interpretation of section 121.4501(4)(a)l.a. is inconsistent with the plain meaning of the language used in that sub-subparagraph. On the contrary, it strikes us that the Board has correctly construed that language.

For our purposes, a “rule” is statutorily defined as an “agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule.” § 120.52(16), Fla. Stat. (2008). We have held that “ ‘[a]n agency statement that either requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.’ ” Fla. Dep’t of Fin. Servs. v. Capital Collateral Reg’l Counsel-Middle Region, 969 So.2d 527, 530 (Fla. 1st DCA 2007) (quoting from Dep’t of Rev. v. Vanjaria Enter., Inc., 675 So.2d 252, 255 (Fla. 5th DCA 1996)). We agree with the Board that its use of the telephone hotline to permit employees to make an election to switch from the Pension Plan to the Investment Plan does not meet this definition of a rule because use of the hotline does not adversely affect any of an employee’s substantive rights; does not constitute a denial or withdrawal of a right an employee might have; does not impose any new or additional requirements on an employee; and does not have “the direct and consistent effect of law.” Rather, the hotline merely provides a means by which an employee might exercise his or her right to switch from the Pension Plan to the Investment Plan, consistent with the relatively clearly expressed purpose of section 121.4501(4)(a)l.a. As we said in St. Francis Hospital, Inc. v. Department of Health & Rehabilitative Services, 553 So.2d 1351, 1354 (Fla. 1st DCA 1989):

[A]n agency interpretation of a statute which simply reiterates the legislature’s statutory mandate and does not place upon the statute an interpretation that is not readily apparent from its literal reading, nor in and of itself purport to create certain rights, or require compliance, or to otherwise have the direct and consistent effect of the law, is not an unpromulgated rule, and actions based upon such an interpretation are permissible without requiring an agency to go through rulemaking.

Because we conclude that the Board’s interpretation of section 121.4501(4)(a)l.a. as permitting state employees to leave the Pension Plan and enroll in the Investment Plan by telephone did not constitute an unadopted rule, we reverse the final order of the Division of Administrative Hearings. We affirm without further discussion the Board’s final order denying Ms. Huberty’s request that she be permitted to rescind her election to enroll in the Investment Plan and be returned to the Pension Plan without having to pay the statutorily required buy-back cost.

CASE NUMBER 1D09-5452 REVERSED; CASE NUMBER 1D10-0534 AFFIRMED.

LEWIS and MARSTILLER, JJ., concur.


text:
    MATRIX EMPLOYEE LEASING, INC., and FWCIGA/First Commercial Claims Services c/o United Self Insured Services, Petitioners, v. Francisco POOL, Respondent.
    No. 1D10-3054.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.

      Kimberly J. Fernandes of Kelley, Kro-nenberg, Gilmartin, Fichtel, Wander, Bam-das, Eskalyo & Dunbrack, P.A., Miami Lakes, for Petitioners.
    Albert Marroquin of Richard E. Zaldi-var, P.A., Miami, for Respondent.
   PER CURIAM.

Petitioners timely sought certiorari review of an order of the Judge of Compensation Claims (JCC) denying their motion to disqualify the law firm representing Respondent, based on a finding that a JCC lacks jurisdiction to address such a motion. Because Petitioners seek a determination of whether a JCC has jurisdiction to rule on a motion to disqualify counsel, we treat the petition for writ of certiorari as a petition for writ of mandamus. See, e.g., Pino v. Dist. Court of Appeal, Third Dist., 604 So.2d 1232, 1233 (Fla.1992) (“Mandamus is an appropriate legal remedy where the petitioner has a clear legal right to the performance of a particular duty and has no other legal method for obtaining relief. Mandamus is properly used to test the correctness of a determination of no jurisdiction by a court of lesser jurisdiction.” (citations omitted)); Moody v. Moody, 705 So.2d 708, 708 (Fla. 1st DCA 1998) (“A writ of mandamus may issue to require a timely ruling on a matter pending before a lower tribunal.”). Because the JCC clearly had the jurisdiction and the duty to rule on Petitioners’ motion to disqualify, we grant the petition and quash the order.

In this case, after representing Petitioners as a member of the Kelley, Kronen-berg, Gilmartin, Fichtel, Wander, Bamdas, Eskalyo & Dunbrack, P.A., (Kelley) law firm, Gary Miller became an employee of the firm Richard E. Zaldivar, P.A., (Zaldi-var), which represents the Claimant in this matter. Kelley filed a motion to disqualify Zaldivar, which Zaldivar opposed. The JCC, relying on Pace v. Miami-Dade County School Board, 868 So.2d 1286 (Fla. 1st DCA 2004), denied the motion, finding he lacked jurisdiction to grant it because he had no express statutory authority to enforce the Florida Rules of Professional Conduct.

The JCC erroneously relied on Pace to conclude he had no jurisdiction, as that case involved an attempt by the JCC “to sanction an attorney for violations of the Florida Rules of Professional Conduct.” Id. at 1287. This court reversed the JCC’s ruling in Pace because only the Florida Supreme Court has jurisdiction to discipline attorneys. Id.; see also Art. V, § 15, Fla. Const. (“The supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.”).

This court has long distinguished the discipline of attorneys from “the duty of the courts to see that the code or rules of professional responsibility, by whatever name, are complied with.” Bammac, Inc., v. Grady, 500 So.2d 274, 278 (Fla. 1st DCA 1986). See also Lincoln Assocs. & Constr. Inc., v. Wentworth Constr. Co., 26 So.3d 638 (Fla. 1st DCA 2010) (relying on Rule Regulating The Florida Bar 4-1.7, court quashed JCC’s denial of motion to disqualify law firm representing two parties in same case without obtaining proper releases from both clients). Because the JCC is empowered to do all things conformable with law pursuant to section 440.33(1), Florida Statutes (2007), the JCC has jurisdiction to determine whether Rules Regulating The Florida Bar 4-1.9 and 4-1.10 require the disqualification of Zaldivar’s firm in this case. Accordingly, we GRANT the petition, QUASH the JCC’s order, and REMAND this matter to the JCC with directions to rule on the motion to disqualify.

HAWKES, C.J., PADOVANO and MARSTILLER, JJ., Concur.

      . We note that, in the response to the petition, Respondent concedes error on the question of jurisdiction.


author: HAWKES, C.J.

text:
    STATE of Florida, Appellant, v. Wesley Dean WILLIAMS, Appellee.
    No. 1D10-2954.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.

      Bill McCollum, Attorney General, and Giselle D. Lylen, Assistant Attorney General, for Appellant.
    Harry L. Harper, Panama City, for Ap-pellee.
   HAWKES, C.J.

The State of Florida seeks review of a trial court order suppressing evidence of child pornography found in the Defendant’s residence. The Bay County Sheriffs Office (BCSO) arrested Defendant for knowingly and unlawfully possessing digital videos of juveniles engaging in sexual conduct. The BCSO discovered these videos while executing a search warrant at Defendant’s residence. Prior to trial, Defendant moved to suppress the videos and all other evidence the BCSO uncovered during the search. The circuit court granted the motion to suppress, finding the affidavit supporting the warrant was void of probable cause.

We reverse, finding: (1) The county judge had a substantial basis for issuing a warrant for the search of the Defendant’s residence; and (2) Even if the warrant was technically flawed, the good faith exception to the exclusionary rule would apply.

Facts

On August 5, 2009, BCSO Officer Húsar applied for a warrant to search the Defendant’s residence for evidence of possession of child pornography. In a five-page supporting affidavit, he explained there was probable cause to believe the Defendant used a “peer to peer” file sharing program to access videos of pre-pubescent females engaging in sexual conduct. He also explained the intricacies of the tracking process the BCSO used to determine such videos were being accessed from the Defendant’s Internet Protocol (IP) address.

Officer Húsar further indicated the BCSO had reason to believe the Defendant’s IP address had been used to access videos containing “known and suspected” child pornography a total of 123 times. The officer specifically requested BCSO be authorized to search the Defendant’s residence for the computer that was used to access his IP address on April 5, 2009, at 9:52 PM and on July 2, 2009, at 12:30 AM; as well as any computer related storage devices that could be used to collect files depicting the sexual performance of children.

After reviewing the affidavit, the county judge issued a search warrant authorizing the BCSO to search the Defendant’s residence. On August 11, 2009, Detective Hú-sar and other members of BCSO executed the warrant and arrested the Defendant. The officers seized fifteen movies containing “juveniles performing sexual conduct” from the Defendant’s home. Defendant admitted to downloading the movies, claiming he was “curious” and was “just looking.” The State ultimately charged the Defendant with nineteen discrete acts of possession of child pornography.

Prior to trial, the Defendant filed a motion to suppress all evidence seized in the search. He claimed the supporting affidavit did not provide a sufficient basis to support the county judge’s finding that probable cause existed to search his residence for child pornography videos.

The trial court granted the Defendant’s motion to suppress, finding: (1) the supporting affidavit failed to establish the time and date when the Defendant accessed a specific video file containing prepubescent females engaged in sexual acts; and (2) “[t]he term ‘suspected child pornography’ is not sufficient, by itself, to establish the probable cause requirement for a search warrant to seize child pornography.” The court subsequently declined to apply the good faith exception to the exclusionary rule.

Standard of Review

Article I, Section 12 of the Florida Constitution provides that a search warrant must be based on probable cause, supported by a sworn affidavit, and effectuated in conformity with the Fourth Amendment to the United States Constitution. To establish the requisite probable cause for a search warrant, the affidavit included in the warrant application must set forth two elements: (1) the commission element-that a particular person has committed a crime; and (2) the nexus element-that evidence relevant to the probable criminality is likely located at the place to be searched. See State v. Sabourin, 39 So.Sd 376 (Fla. 1st DCA 2010).

The task of an issuing magistrate is to review circumstances set forth in a supporting affidavit and make a “practical, common-sense decision” as to whether there is probable cause to issue a warrant. Id.; see also State v. Gonzalez, 884 So.2d 330, 333 (Fla. 2d DCA 2004). The task of a court charged with reviewing a magistrate’s decision to issue a warrant is to examine the four corners of the supporting affidavit and determine whether the magistrate had a “substantial basis” for making such a “practical, common-sense” decision. Sabourin at 380.

In the instant case, this Court is charged with reviewing a trial court ruling regarding whether a county judge made a proper probable cause determination prior to issuing a search warrant. Thus, our review is de novo. Id.

A. Commission Element

When attempting to secure a valid search warrant, an applicant is not required to provide a magistrate with direct proof the objects of the search are located in the place to be searched. See State v. Weil, 877 So.2d 803, 804 (Fla. 5th DCA), review denied, 889 So.2d 72 (Fla.2004). Rather, the applicant must supply a sworn affidavit setting forth facts upon which a reasonable magistrate could find probable cause to support such a search. Id. The issuing magistrate will then analyze the information contained in the affidavit, consider the type of crime being investigated, examine the nature of the items sought, and make a “practical, common-sense decision” as to whether there is a “fair probability” evidence of a crime will be found at a particular place. Illinois v. Gates, 462 U.S. 213, 238-239, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

This Court has previously recognized that collectors of child pornography tend to retain their materials in secure places, including their homes. See Sabourin at 381 (quoting U.S. v. Lamb, 945 F.Supp. 441, 460 (N.D.N.Y.1996)):

Since [child pornography] materials are illegal to distribute and possess, initial collection is difficult. Having succeeded in obtaining images, collectors are unlikely to quickly destroy them. Because of their illegality and the imprimatur of severe social stigma such images carry, collectors will want to secret them in secure places, like a private residence. This proposition is not novel in either state or federal court: pedophiles, preferential child molesters, and child pornography collectors maintain their materials for significant periods of time.

Here, the Defendant was suspected of possessing child pornography. A “practical, common-sense” reading of the five-page supporting affidavit clearly indicates Officer Húsar had reason to believe the Defendant, on at least 128 separate occasions, used a computer in his residence to access a specific IP address and download “known or suspected child pornography.” The affidavit also clearly indicates there was at least one occasion the Defendant accessed a file that Officer Húsar personally confirmed contained a video of prepubescent females engaging in sexual conduct. Based on the above information, it is reasonable to presume the county judge made a common-sense inference in determining there was a fair probability the Defendant had stored images of child pornography on a computer or other electronic storage device located in his residence.

B. Staleness/Nexus to Search for Evidence of Child Pornography

In evaluating staleness, a magistrate must determine whether, based on the particular facts of a given case, the nature of the criminal activity involved, and the evidence hoped to be found, there is probable cause to authorize a search. See Sabourin at 382. A magistrate is not required to leave common-sense at the courthouse door when evaluating whether a supporting affidavit satisfies the nexus element and supports a finding of probable cause. An issuing magistrate should, instead, assess the whole of the information provided in the affidavit application and determine whether there is probable cause to believe evidence will be found. See Sabourin at 382; see also United States v. Lacy, 119 F.3d 742, 745 (9th Cir.1997), cert. denied, 523 U.S. 1101, 118 S.Ct. 1571, 140 L.Ed.2d 804 (1998).

In the instant case, the trial court granted the Defendant’s motion to suppress, finding the affidavit supporting the warrant failed to indicate when the Defendant was believed to have downloaded child pornography. We disagree with the trial court’s conclusion.

In the supporting affidavit Officer Húsar expressly lists two specific dates on which the BCSO believed the Defendant downloaded videos of pre-pubescent females engaging in sexual activity. The affidavit goes on to specifically request authorization to search for and seize the computer used to access the Defendant’s IP address on those dates. Even if the specific sections of the affidavit where Officer Húsar lists the dates the Defendant used his computer to commit illegal conduct, when read in isolation, can be interpreted as vague; a practical, common-sense review of the entire affidavit leaves little doubt the BCSO had probable cause to warrant searching the Defendant’s residence for evidence of child pornography.

C. Good Faith Exception to the Exclusionary Rule

Even if the Defendant were correct in arguing the county judge lacked probable cause to issue the search warrant, we would still reverse the trial court’s decision to suppress evidence of child pornography found in the Defendant’s home.

In Leon, the United States Supreme Court recognized a good faith exception to the exclusionary rule that precludes suppression of evidence secured as a consequence of an invalid warrant when the officer who conducts the search does so in objectively reasonable reliance upon the validity of the warrant. See U.S. v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984); see also Sabomin at 384 (holding “[t]o determine whether an officer acted in objectively reasonable reliance upon the validity of a warrant, courts must assess whether, given the totality of the circumstances, a well trained officer “armed with the information possessed by the officer who conducted the search” would have believed the warrant to be valid.”).

Here, the search warrant was not so lacking in an indicia of probable cause as to render Officer Husar’s belief in its validity unreasonable. Officer Húsar was informed via an intrastate computer program that certain files containing child pornography were being viewed in Bay County; he personally observed that the files depicted pre-pubescent girls engaging in sexual acts; and he traced the files to the Defendant’s IP address. Officer Hú-sar then completed a five-page affidavit relaying his belief the Defendant was storing child pornography on a computer in his residence and submitted it to the county judge. The county judge reviewed the application and issued a search warrant. Nothing in the record indicates the county judge abandoned his neutral or detached position in making this determination; nor is there any other reason Officer Húsar should have doubted the validity of the county judge’s determination.

Given the circumstances, it is apparent that a reasonable, well-trained officer “armed with the information” possessed by Officer Húsar would have believed the warrant to be valid. It was therefore objectively reasonable for him to conduct the search of the Defendant’s residence.

We reverse the trial court’s order to suppress evidence seized as a result of the warranted search of the Defendant’s residence and remand for further proceedings consistent with this opinion.

REVERSED.

DAVIS and THOMAS, JJ., concur.

      . The affidavit explains that "peer to peer” programs are used by persons on the internet for the purposes of sharing files; that such files can consist of "photograph, video, audio, document, or any other type of file shared on the internet”; and that law enforcement nationwide has been involved in investigations concerning the distribution of child pornography via peer to peer networks.


author: PER CURIAM. THOMAS, J.,

text:
    James McDOLE, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-2376.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.
    James McDole, pro se, Appellant.
    Bill McCollum, Attorney General, and Edward C. Hill, Jr., Special Counsel Criminal Appeals, Tallahassee, for Appellee.
   PER CURIAM.

After reviewing the state’s response to this Court’s show cause order, we conclude that the appellant’s rule 3.853 motion is facially sufficient. See Fla. R.Crim. P. 3.853; § 925.11(l)(a)2.; (2)(a)l.-6., Fla. Stat. (2009). Thus, the trial court should have reviewed the merits of the appellant’s claim and either attached records conclusively refuting his assertions, or held a hearing on the motion. It is of no matter that the appellant entered a plea to the charges. See Glenn v. State, 954 So.2d 732 (Fla. 1st DCA 2007) (stating that the 2006 amendment to section 925.11, which governs post-conviction DNA testing, permits defendants who have pled guilty or nolo contendere to file rule 3.853 motions). We therefore direct the lower court to consider the merits of the instant motion and address its claims.

REVERSED AND REMANDED.

BENTON and ROWE, JJ., concur; THOMAS, J., concurs with opinion.

THOMAS, J.,

concurring.

I concur, because I agree with the majority opinion that the trial judge erred by holding that because Appellant pled guilty, he is not entitled to DNA testing. As the majority opinion correctly notes, we have recognized that the Legislature has determined that even a defendant who enters a plea is entitled to request DNA testing. § 925.11(l)(a)(2), Fla. Stat.

I note, however, that Appellant has not made an adequate preliminary showing that he is entitled to DNA testing of the evidence collected from this 1971 rape investigation. In Lott v. State, 931 So.2d 807, 821 (Fla.2006), the supreme court explained, “We have repeatedly cautioned that ‘[r]ule 3.853 is not intended to be a fishing expedition.’ ” (citing Cole v. State, 895 So.2d 398, 403 (Fla.2004) (quoting Hitchcock v. State, 866 So.2d 23, 27 (Fla. 2004))).

Here, as the State notes, Appellant has made several claims based on his “trial.” In fact, the supreme court reversed his conviction based on the trial court’s inadequate factual findings relating to Appellant’s confession, under the authority of Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), and his case was reversed and remanded. McDole v. State, 283 So.2d 553 (Fla.1973). On remand, Appellant pled guilty to the rape charge. As noted, this does not preclude his access to claim additional DNA testing under rule 3.853, Florida Rules of Criminal Procedure, but it is relevant regarding the facts of the underlying charge. Furthermore, under sections 925.11(2)(f)(l)-(3), Florida Statutes, the trial court must ultimately determine, 39 years after the rape occurred, whether evidence subject to DNA testing still exists, whether the evidence has been materially altered and whether it will be admissible at trial, and most importantly, “[w]hether there is a reasonable probability that the ... defendant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.” (Emphasis added.)

Here, Appellant’s motion speculates that the rape kit from the investigation of the 1971 rape “would have proved that Defendant was not the perpetrator of this crime [and] it would have exonerated the defendant and [led] to the arrest of the real perpetrator.” Appellant’s motion contains material omissions or misrepresentations because he fails to note that he and a co-defendant both pled guilty to this rape. McDole, 283 So.2d at 553. Thus, if Appellant’s DNA is not present, assuming evidence from a 39-year-old case is available and can be subjected to DNA testing, will not prove entitlement to DNA testing under the holding of Lott or section 925.11(2), Florida Statutes, as the DNA could be attributable to Appellant’s co-defendant, without exonerating Appellant.

Thus, I concur in the majority opinion, but note that the trial court may still determine that Appellant is not entitled to DNA testing under his motion and the facts alleged therein.


text:
    Robert L. JONES, Appellant, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Appellee.
    No. 1D10-2012.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.
    Robert L. Jones, pro se, Appellant.
    Bill McCollum, Attorney General, and Maricruz Rahaman, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the circuit court disposed of the petition for writ of mandamus filed below on procedural grounds rather than the merits, we treat this proceeding as an appeal. The order dismissing the petition for writ of mandamus for failure to exhaust administrative remedies is AFFIRMED.

WEBSTER, DAVIS, and ROWE, JJ., concur.


author: MORRIS, Judge.

text:
    Elizabeth Small BOREN, Appellant, v. SUNTRUST BANK, as Personal Representative of the Estate of Jane Harris Small, and Brian Y. Miller, Appellees.
    No. 2D10-1904.
    District Court of Appeal of Florida, Second District.
    Nov. 3, 2010.

      Joseph W. Fleece, III, of Baskin Fleece, Clearwater, for Appellant.
    Kimberly A. Bald and Brian L. Trimyer of Harllee & Bald, P.A., Bradenton, for Appellee SunTrust Bank.
    No appearance for Appellee Brian Y. Miller.
   MORRIS, Judge.

Elizabeth Boren appeals a final order wherein the circuit court determined that Boren’s mother’s contractual interest in a condominium — which was owned by Boren’s mother at the time of her death — was not homestead property protected from claims of creditors. By virtue of this determination, the value of the contractual interest was included in Boren’s mother’s estate, and as a result, the amount payable to SunTrust for its services in acting as the personal representative of the estate was increased. Likewise, the amount payable to SunTrust’s attorney was also increased. Based upon the warranty deed which conveyed only a life estate to Boren’s mother, as well as the repurchase agreement executed by Boren’s mother and the condominium association, we conclude there is no error, and we affirm.

I. Background

Boren’s parents, Walter Lowry Small and Jane Harris Small, purchased a life estate in the condominium in July 2000. At that same time, the Smalls entered into a repurchase agreement with the Sarasota Bay Club, LLC (SBC). The subject warranty deed provided that “[t]he Repurchase Agreement executed between Grant- or and Grantee ... herewith establishes Grantor’s exclusive right to sell the Unit to a third party upon the termination of the Life Estate granted herein.” The repurchase agreement provided in relevant part that the life estate would terminate upon the occurrence of three different scenarios, one of which was the death of the buyer, and that upon the death of the buyer, “the Buyer’s interest or estate in the Unit shall automatically terminate and fee simple title shall be vested in Seller.”

Upon termination of the life estate, the repurchase agreement required SBC to attempt to sell the condominium for the benefit of the heirs of the holder of the life estate, and if SBC was unable to do so within a one-year timeframe, SBC was required to pay the heirs of the holder of the life estate for the condominium.

Mrs. Small died on December 12, 2007. Her will was admitted to probate, and SunTrust was appointed as the estate’s representative. After SunTrust filed the initial inventory of the estate’s assets and a petition for discharge with the circuit court, Boren filed objections and sought review of SunTrust’s compensation. Thereafter, in March 2010, SunTrust filed an amended inventory wherein it classified the condominium as nonexempt homestead.

After a hearing, the circuit court determined that the condominium was not protected homestead property and, therefore, overruled Boren’s objections to the fees and charges imposed by SunTrust. In rendering its decision, the circuit court stated that “the deceased exchanged and negotiated away the homestead character of the condominium by negotiating and signing a buy back agreement with a life estate provision for financial and personal benefit, [which] negate[d] the homestead character of the property.” We agree with this determination.

II. Analysis

[T]he purpose of the homestead exemption is to promote the stability and welfare of the state by securing to the householder a home, so that the homeowner and his or her heirs may live beyond the reach of financial misfortune and the demands of creditors who have given credit under such law.

Pub. Health Trust of Dade Cnty. v. Lopez, 531 So.2d 946, 948 (Fla.1988). However, in this case, the decedent did not have a home which she could have conferred upon her heirs. This is because the decedent’s interest in the condominium was limited to a life estate and upon her death, the life estate ended. See Anemaet v. Martin-Senour Co., 114 So.2d 23, 26-27 (Fla. 2d DCA 1959) (“When the estate or interest of the owner ends, the homestead exemption of the owner of such property necessarily terminates.”). Thus, the decedent’s estate had only a contractual right to receive the proceeds from the sale of the condominium, which were not subject to homestead protected status, and the proceeds could then be transferred to the decedent’s heirs.

We reject Boren’s argument that White v. Theodore Parker, P.A., 821 So.2d 1276 (Fla. 2d DCA 2002), controls the outcome of this case. In White, this court was asked to decide whether a property lost its homestead protected status where, prior to the entry of an order determining that the property was protected, the decedent’s heirs sold the property pursuant to a real estate contract entered into prior to the decedent’s death. Id. at 1277. We held that because the decedent died prior to the completion of the sale of the property— and, therefore, died holding title to the property — the property was protected as his homestead and that, as a result, the proceeds from the sale of the property were protected by the homestead protection. Id. at 1277,1280.

Here, Boren’s argument is fatally undermined by the fact that the decedent never had more than a life estate interest in the condominium which terminated upon her death with fee simple title reverting back to SBC. Just as the life estate terminated upon the decedent’s death, so too did any homestead protection the decedent enjoyed. These facts distinguish this case from White, and because the decedent could not give away more than what she had, Boren was never entitled to claim a homestead exemption on the proceeds of the sale of the condominium.

Accordingly, the decision of the circuit court is affirmed.

LaROSE and BLACK, JJ., Concur.

      . Mr. Small predeceased Mrs. Small.


text:
    Michael QUICK, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1274.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred in denying appellant’s request for a jury instruction on the affirmative defense of lack of knowledge that the substance he possessed was cocaine. We reverse appellant’s conviction for possession of cocaine and remand for a new trial.

Appellant was arrested when a Broward County Sheriff’s deputy witnessed appellant drinking a beer in a gas station parking lot in violation of a local ordinance. After reading appellant his Miranda rights, appellant was frisked by consent. The deputy found a glass tube containing a black substance in appellant’s pocket. Appellant admitted smoking crack cocaine the day before and said he was looking to purchase more cocaine. The deputy field-tested the pipe; the black residue tested positive for cocaine.

The Broward Sheriffs Office Crime Laboratory confirmed the pipe contained trace amounts of cocaine. At trial, a laboratory technician testified that he did not test the pipe for marijuana. Marijuana requires application of more heat than crack cocaine to produce smoke. The glass pipe found on appellant, the technician explained, would break under the high degree of heat needed to smoke marijuana.

Appellant denied possessing any crack cocaine. He explained that the pipe could not contain cocaine because he “smoked out of’ cocaine the previous evening: “If there was any more, believe me, I would have gotten it.” Appellant said he was smoking marijuana, not cocaine, when he was arrested. He also explained that another man used the pipe earlier that afternoon.

One of defense counsel’s primary arguments in closing was that appellant did not know the pipe contained cocaine. Defense counsel requested a jury instruction on the affirmative defense that appellant did not know of the illicit nature of the specific substance found in the pipe. The trial court denied the request, holding that appellant presented no evidence that he had “no knowledge of the illicit nature of the controlled substance.” Because appellant conceded that cocaine was illegal, he could not receive the jury instruction. The jury found appellant guilty of possession of cocaine and possession of drug paraphernalia, and appellant was sentenced to forty months in prison. Appellant appeals only his conviction for possession of cocaine.

Generally speaking, “[a] criminal defendant is entitled to have the jury instructed on the law applicable to his or her theory of defense where there is any evidence to support it, no matter how weak or flimsy.” Gregory v. State, 937 So.2d 180, 182 (Fla. 4th DCA 2006). We review the trial court’s “decision on the giving or withholding of a proposed jury instruction ... under the abuse of discretion standard of review.” McKenzie v. State, 830 So.2d 234, 236 (Fla. 4th DCA 2002).

Section 893.101(2) states that the “[ljack of knowledge of the illicit nature of a controlled substance is an affirmative defense” to the crime of possession. Should a defendant raise this defense, the statute requires the trial court to instruct the jury that “possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance.” § 893.101(3), Fla. Stat. This court explained the genesis of section 893.101 as follows:

In 2002, the Florida Legislature enacted section 893.101, Florida Statutes, which expressly provides that knowledge of the illicit nature of a controlled substance is not an element of any offense under chapter 893. The statute superseded Chicone v. State, 684 So.2d 736 (Fla.1996), which had held that the state was required to prove a fourth element of the offense, namely that the defendant knew of the illicit nature of the substance. See Barrientos v. State, 1 So.3d 1209, 1216 (Fla. 2d DCA 2009). Section 893.101, Florida Statutes, thus makes possession of a controlled substance a general intent crime and provides that lack of knowledge of the illicit nature of a controlled substance is an affirmative defense. See Wright v. State, 920 So.2d 21, 24 (Fla. 4th DCA 2005).

Miller v. State, 35 So.3d 162, 163 (Fla. 4th DCA 2010). We also explained in Miller that the affirmative defense recognized by section 893.101(2) “does not require that the defendant offer evidence that he did not know that the possession of cocaine was illegal.” Id. To invoke the defense, the defendant need only argue that he did not know the substance in his possession was cocaine, not that he believed cocaine was a legal substance. Id.

The facts of Miller are almost identical to the facts of this case. In Miller, the defendant was searched after his arrest, and police discovered a glass pipe in his possession. At trial, “counsel had specifically asked Miller whether he knew that cocaine was in the pipe”; the defendant denied knowledge of any cocaine. Id. This court held that the defendant’s testimony that he did not know the pipe contained cocaine “presented at least some evidence in support” of his affirmative defense. Id. Finding error, we remanded the case for a new trial.

The single fact distinguishing this case is that appellant conceded he smoked cocaine out of the pipe the day before, whereas the defendant in Miller denied possessing cocaine at any point in time. This distinction, however, does not negate appellant’s right to a jury instruction on his affirmative defense, “no matter how weak or flimsy” the defense may seem. The key evidence presented in Miller that entitled the defendant to the jury instruction on the affirmative defense was that “[h]e testified that he did not know there was cocaine in the glass pipe.” Id.

Like the defendant in Miller, appellant testified that he did not know the pipe contained cocaine at the exact time of his arrest. Because appellant’s testimony offered some support for the affirmative defense, the trial court erred in denying appellant’s request to give the instruction. Further, because the trial court failed to instruct the jury on appellant’s sole defense, we cannot say that this error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Therefore, we are compelled to reverse and remand for a new trial.

Reversed and remanded.

WARNER, POLEN and LEVINE, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: GERBER, J. DAMOORGIAN, J.,

text:
    Elizardo RIVERO and M.A. Cruz Irizarry, Appellants, v. Romildo MEISTER, Appellee.
    No. 4D09-2555.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2010.

      Jason Gelinas and Thomas J. Crowder of Law Office of Jason Gelinas, Fort Laud-erdale, for appellants.
    Lynn G. Waxman of Lynn G. Waxman, P.A., West Palm Beach, and Elliot Brooks of Young, Brooks & Pefka, P.A., of West Palm Beach, for appellee.
   GERBER, J.

The defendants and their attorneys failed to appear for a jury trial. The plaintiff moved for sanctions against the defendants’ attorneys. The trial court granted the motion. However, the trial court did not find that the defendants’ attorneys acted in bad faith. Instead, the trial court found that the defendants’ attorneys acted negligently. Because the trial court did not make an express finding of bad faith conduct, we are required to reverse. We write to address both the reversal and our concern with the unfairness of this result.

At the March 27 calendar call, the court set the case as the second back-up trial for May 18. The court gave both sides the names of the attorneys on the cases ahead of them and told them to keep apprised of the status of those cases. However, the defendants’ attorneys did not do so.

On May 18, the court’s judicial assistant called both sides to inform them that this case would go to trial on May 18. She left a message on the defendants’ lead attorney’s voice mail. She assumed that the defendants’ attorneys would appear for trial. However, the defendants’ lead attorney did not check his voice mail for the rest of that week.

On May 15, two other courts notified the defendants’ attorneys that they were being called to trial in different counties. However, the defendants’ attorneys did not notify the plaintiff and the trial court that other courts had called them to trial.

On May 18, the defendants and their attorneys failed to appear for trial. The court called the defendants’ attorneys’ office and was told that they were in trial in other counties. Although the court could have proceeded with the trial, the court on its own motion continued the case.

The plaintiff filed a motion for sanctions. The motion alleged:

The failure of an attorney to appear at a scheduled trial date amounts to disregard of a Court Order, jeopardizes the rights of his own client, damages the rights of his opponent and damages the efficient administration of justice. No claim is made by undersigned counsel that opposing counsel did this knowingly or with intent.

(emphasis added). The motion requested that the defendants and their attorneys pay: (1) $10,400.00 for the fees which the plaintiffs attorney incurred in preparing for and attending trial (twenty-six hours at $400.00 per hour); and (2) $350.00 for the wages which the plaintiff lost for having to appear for trial.

The court held a hearing on the motion. The defendants’ attorneys requested the court to deny the plaintiffs motion because they were unaware that the court had called the case to trial. The court responded, “The issue here this morning is not whether sanctions are going to be imposed, just the amount.” The plaintiffs attorney then testified as to the amounts which the plaintiff was seeking. The defendants’ lead attorney responded that he believed the sanction should be commensurate with the offense. He added, “I’m not really offering an excuse for it, it was not in bad faith; it was not deliberate.”

The court issued a written order granting the plaintiffs motion. The court noted that under Moakley v. Smallwood, 826 So.2d 221, 226 (Fla.2002), it had the “inherent authority to impose sanctions” for the defendants’ attorneys’ conduct. The court then stated:

This situation was caused by the negligence of [the defendants’ attorneys]. Therefore, the Court imposes sanctions against [the defendants’ attorneys] in the amount of $10,750.00. The Court further determines that this is not a “taxable cost” to be assessed at the end of this litigation but rather is due and payable immediately.

(emphasis supplied).

This appeal followed. The standard of review of an order granting sanctions for attorney misconduct is abuse of discretion. Shniderman v. Fitness Innovations & Techs., Inc., 994 So.2d 508, 514 (Fla. 4th DCA 2008).

The defendants’ attorneys acknowledge that their failure to appear was an embarrassing and regrettable event. However, they contend that the trial court abused its discretion when it imposed the monetary sanctions for their failure to appear at trial. They primarily argue that, under Moakley, a court must find an attorney’s conduct to have been in bad faith, and the record establishes that their conduct was not in bad faith. They rely on the plaintiffs motion, which recognized that they did not fail to appear “knowingly or with intent.” They also rely on the court’s order, which found that the matter was caused by their “negligence.”

We are compelled to agree with the defendants’ attorneys. In Moakley, our supreme court held that

the trial court’s exercise of the inherent authority to assess attorneys’ fees against an attorney must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees. Thus, a finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.

826 So.2d at 227.

Here, the trial court did not make an express finding of bad faith conduct. The trial court also did not make any detailed factual findings describing specific acts of bad faith conduct that resulted in the plaintiffs unnecessary incurrence of attorneys’ fees. Instead, the trial court found that the defendants’ attorneys were merely negligent. Because the trial court did not make an express finding of bad faith conduct, we are required to reverse.

We are concerned with the unfairness of this result. The defendants’ attorneys committed misconduct in three ways: (1) failing to keep apprised of the cases ahead of them as the trial court instructed; (2) failing to check their voice mail to see if the trial court called them to trial; and (3) failing to notify the plaintiff and the trial court that other courts called them to trial. As a result of this misconduct, the plaintiff and his attorney incurred $10,750.00 in fees and costs through no fault of their own. And yet this amount is noncompensable because the defendants’ attorneys’ misconduct did not rise to the level of bad faith.

Given the unfairness of this result, we believe that our supreme court may wish to re-examine Moakley’s requirement of bad faith. As Justice Wells pointed out in his concurring opinion in Moakley, “bad faith is not defined” in the majority opinion. 826 So.2d at 228 (Wells, J., concurring). In our view, “bad faith” should be defined to include at least both intentional misconduct and reckless misconduct. “[T]o act ‘recklessly’ is to act ‘in disregard of a risk so obvious’ that the ‘actor must be taken to have been aware of it, and so great as to make it highly probable that harm would follow.’ ” Dean Witter Reynolds, Inc. v. Hammock, 489 So.2d 761, 766 (Fla. 1st DCA 1986) (quoting W. Prosser, Law of Torts 185 (4th ed. 1971) (internal citation omitted)).

Applying that definition here, the defendants’ attorneys acted recklessly. By failing to check on the cases ahead of them as instructed, by failing to check their voice mail to see if the trial court called them to trial, and by failing to notify the plaintiff and the trial court that other courts called them to trial, they acted in disregard of the obvious risk that they might have been called to trial in this case. The defendants’ attorneys must have been aware of that possibility and of the financial harm which would follow to the plaintiff and his attorney by failing to appear for trial, plus the harm to the trial court’s docket and to jurors unnecessarily summoned for duty. If Moakley’s definition of “bad faith” included reckless misconduct, then the trial court would have been justified in granting the plaintiffs motion for sanctions.

Thus, we certify the following question of great public importance:

DOES THE DEFINITION OF “BAD FAITH CONDUCT” IN MOAKLEY V. SMALLWOOD, 826 So.2d 221 (Fla. 2002), INCLUDE RECKLESS MISCONDUCT WHICH RESULTS IN THE UNNECESSARY INCUR-RENCE OF ATTORNEYS’ FEES?

Reversed; question certified.

MAY, J., concurs.

DAMOORGIAN, J., concurs specially with opinion.

DAMOORGIAN, J.,

concurring specially.

I concur and write only to address the inequity of the current standard of conduct that must be present before sanctions may be imposed under Moakley v. Smallwood, 826 So.2d 221 (Fla.2002). In this case, defense counsel acknowledged that he was negligent. When asked by the trial judge what the appropriate sanction should be, defense counsel responded that “an appropriate sanction would be [the plaintiffs] time, which was $350 for the day, and [plaintiffs counsel’s] time for coming in on Monday, which would be about maybe an hour at $400 an hour.” To defense counsel’s credit, he acknowledged that his negligence cost the opposing party money. Defense counsel even went so far as to suggest an amount to which the opposing party was entitled. Moakley simply does not allow for the imposition of sanctions for negligent conduct. Who should bear this cost, the victim or the perpetrator? The trial court should have the discretion to impose sanctions even when the conduct rises only to a negligence standard.