author: VAN NORTWICK, J.

text:
    Mauricio GARCIA-LOPEZ, Appellant, v. AFFORDABLE PLUMBING/VININGS INSURANCE CO., Appellee.
    No. 1D10-4949.
    District Court of Appeal of Florida, First District.
    July 18, 2011.
    Rehearing Denied Aug. 23, 2011.

      John J. Rahaim, II, of Rahaim, Watson, Dearing & Moore, P.A., Jacksonville, for Appellant.
    Hinda Klein and Karen E. Berger of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Mauricio Garcia-Lopez, Claimant, challenges an order of the Judge of Compensation Claims (JCC) denying his claim for temporary disability benefits. Affordable Plumbing/Vinings Insurance Co., the Employer/Carrier (E/C), cross appeals the JCC’s grant of certain temporary partial disability benefits. Claimant, a minor, injured his back on August 28, 2008, while working for Affordable Plumbing in violation of federal immigration laws and section 450.061(l)(f), Florida Statutes (2008), prohibiting employment of children under the age of sixteen in heavy work in the building trades. The JCC found that Affordable Plumbing employed Claimant through an intermediary, also an employee of Affordable Plumbing, who Claimant testified was aware of his age and was responsible for bringing him to the United States from Mexico unlawfully for the purpose of working for the employer in Jacksonville. After Claimant was injured carrying a heavy boiler at a construction site, the E/C eventually authorized medical care, but denied a claim for temporary disability benefits based, in part, on the contention that Claimant had no wages to establish an average weekly wage because Claimant did not report his wages for federal income tax purposes. For the reasons that follow, we reverse the issues raised on appeal and affirm the issues raised on cross appeal.

The JCC concluded that Claimant’s unrefuted testimony that he filed an income tax return did not constitute competent substantial evidence that Claimant reported his wages for federal income tax purposes unless the documents Claimant testified he filed with the Internal Revenue Service were also introduced into evidence. This was error. Although section 440.02(28), Florida Statutes (2008), defines wages as those “wages earned and reported for federal income tax purposes,” nothing in section 440.02(28), or elsewhere in the Workers’ Compensation Law, requires that a tax return be introduced into evidence. The JCC did not reject Claimant’s testimony as untruthful, but invoked the best evidence rule to conclude that Claimant’s testimony was not competent substantial evidence that Claimant reported his wages. This was erroneous because the best evidence rule addresses the admissibility of evidence, not its weight. See § 90.952- 954, Fla. Stat. (2008). In addition, the E/C did not object to Claimant’s testimony based on the best evidence rule. The JCC allowed Claimant to testify concerning his efforts to report his wages, only informing the parties after the evidence had closed that nothing short of the actual tax return would suffice to prove that Claimant had reported his wages. We therefore reverse the JCC’s finding that Claimant did not have wages as defined in section 440.02(28), and remand for further proceedings.

To provide guidance to the JCC on remand, we note that the definition of wages in section 440.02(28) does not state that wages reported for federal income tax purposes include only those wages reported by an employee. In Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008), we held that “unreported income does not qualify as ‘wages earned and reported for federal income tax purposes’ and cannot be the basis for calculating average weekly wage under section 440.14, Florida Statutes.” Id. at 356. The argument advanced by the claimant in Fast Tract was that the definition of wages in section 440.02(28) should be read as including only those wages reported by the employee to the employer instead of to the Internal Revenue Service. Id. at 357. This court rejected that assertion, but did not decide what effect an employer’s reporting, or lack of reporting, of an employee’s income for federal tax purposes has on the average weekly wage calculation. In Fast Tract, neither the employee nor the employer reported the claimant’s income. Id. at 356.

Federal law requires employers to report and withhold taxes from wages paid to employees. See, e.g., 26 U.S.C. §§ 3402(a), 3403 (2008); United States v. Assoc. Developers of Fla., Inc., 400 So.2d 17, 19 (Fla. 1st DCA 1980). Proof that wages have been reported for federal income tax purposes by the employee or the employer therefore satisfies the plain language of the statute. Indeed, a presumption arises on payment of wages that the employer has withheld an appropriate amount as income taxes. Pacific Pools Constr. Co. v. McClain’s Concrete, 101 Nev. 557, 706 P.2d 849, 852 (1985) (citing United States v. Abrahams, 312 F.Supp. 1035 (S.D.N.Y.1970)). Consequently, we regard as dicta any language in Fast Tract suggesting that only wages reported by the employee may be included in the statutory definition of wages.

We affirm without further comment the JCC’s finding, challenged by the E/C on cross appeal, that Claimant is entitled to temporary partial disability benefits from August 29, 2008, to April 14, 2010. The amount of those benefits will, of course, depend upon determination of Claimant’s average weekly wage on remand. Although the JCC’s award of additional compensation against the employer alone, pursuant to section 440.54, Florida Statutes (2008), has not been challenged on cross appeal, the amount of that award was based on the amount of temporary partial disability benefits awarded and may also be revisited on remand.

REVERSED and REMANDED for further proceedings consistent with this opinion.

PADOVANO, and HAWKES, JJ., concur.

       We need not decide in this case whether an employee may rely upon this presumption to prove compliance with the reporting requirement of section 440.02(28).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John GRIMES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-458.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    James S. Purdy, Public Defender, And Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

John Grimes appeals from an order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In the order on appeal, the trial court rejected Grimes’ argument based on an assertion that his original sentence was a “true split sentence.” Grimes’ argument as to this issue is meritless, and Grimes’ motion was properly denied. The brief on appeal, however, addresses a different issue regarding jail and prison credit. It appears from the record before us that the jail and prison credit claim was addressed and resolved in Grimes’ favor in an order entered on January 30, 2009 (nunc pro tunc to February 20, 2007). We write only to note that our affirmance in this appeal is as to the only issue raised in Grimes’ 3.800 motion below (the “true split sentence” issue). We want to make it clear to counsel that we have not considered the jail and prison credit issue in this appeal, such that our affirmance will not act as bar to address this issue with the trial court (if the 2009 order did not do so).

AFFIRMED.

TORPY, LAWSON, and COHEN, JJ., concur.


text:
    Daniel CORRIDI, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1839.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    Daniel Corridi, Indiantown, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the rule 3.850 motion in Case No. 05-2005-CF-051951-A, in the Circuit Court in and for Brevard County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, LAWSON and COHEN, JJ„ concur.


text:
    Lee GRESHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2101.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    Robert Wesley, Public Defender and Marc J. Burnham, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF10-8671-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

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


text:
    Leon CLAYTON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-2102.
    District Court of Appeal of Florida, Fifth District.
    July 22, 2011.
    Robert Wesley, Public Defender and Marc J. Burnham, Assistant Public Defender, Orlando, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case number CF07-13128-O, in the Circuit Court in and for Orange County, Florida. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Charles Ernest ROOD, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1298.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    James Owens, Public Defender, First Judicial Circuit, and Alice F. Harris, Assistant Public Defender, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on November 7, 2008, in Escambia County Circuit Court case number 2007-CF-006816-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him in the belated appeal authorized by this opinion.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Willie GRAVES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3320.
    District Court of Appeal of Florida, First District.
    July 22, 2011.
    Matt Shirk, Public Defender, Fourth Judicial Circuit, and Matt Lufrano, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about May 17, 2011, in Duval County Circuit court case number 16-2010-CF-014407-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the Office of the Public Defender has been appointed to represent petitioner on appeal.

VAN NORTWICK, WETHERELL, and ROWE, JJ., concur.


text:
    Ronald PARRISH, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D10-5606, 1D10-5608.
    District Court of Appeal of Florida, First District.
    July 26, 2011.

      Nancy A. Daniels, Public Defender, M.J. Lord, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, Jennifer J. Moore, Assistant Attorney General, for Appellee.
   PER CURIAM.

Ronald Parrish appeals his conviction for child neglect and his revocation of probation based on possession of a weapon and new law violations. Parrish raises three issues on appeal, but we reverse on two, rendering the third issue moot. The trial court erred when it denied Parrish’s motion for judgment of acquittal (JOA) on the child neglect charge as there is insufficient evidence that his actions/omission created a risk of serious mental or physical injury to his child. The trial court also erred in revoking probation based on possession of a weapon as there was insufficient evidence to find that Parrish’s BB gun was a deadly weapon. We reverse and remand with instructions to vacate the child neglect conviction, resentence as to the remaining charges, and hold a new violation of probation (VOP) hearing.

Child Neglect

Following a jury trial, Parrish was convicted of child neglect, battery, and “resisting officer without violence.” The child neglect charge was based on two acts/omissions by Parrish: (1) his failure to order his daughter to leave during a confrontation with Officer Newberry; and (2) the condition of his home. Neither action/omission supports a conviction for child neglect.

Officer Newberry was patrolling Parrish’s neighborhood when he was waved over by Tom Caldwell, a neighbor. Caldwell told him that Parrish was in his front yard beating his roommate. Caldwell also informed Newberry that, when he tried to break up the fight, Parrish went inside and retrieved a gun. As Newberry waited outside Parrish’s home for back-up, Parrish walked out of his home and sat at a table underneath a carport. Newberry approached Parrish at gunpoint and ordered him to keep his hands on the table.

During the confrontation, Parrish’s five-year-old daughter ran out of the house and stood in front of her father. The child cried and screamed, “Don’t hurt my daddy.” Newberry lowered his weapon and ordered Parrish to tell his daughter to go back inside. Parrish refused and said she was not going anywhere. After approximately thirty to sixty seconds of yelling back-and-forth, other officers arrived, removed the girl from the situation, and arrested Parrish.

Newberry testified that throughout the confrontation Parrish kept his hands on the table and was “physically compliant but verbally hostile.” Officer Newberry further testified he never pointed the gun at the girl and he immediately lowered it once she was present. When asked if the girl was “in physical harm of [him] accidentally shooting her or anything like that,” Newberry responded “[n]ot from my gun, no, sir.”

The State also presented evidence regarding the condition of Parrish’s home at the time of the underlying crimes. For instance, Officer Connell testified to the following: there was no air conditioning in the house; the windows were all closed and covered with spider webs and mold; the furniture was covered with clothing and trash; the kitchen smelled like rotten food; there were moldy dishes in the sink; there was no food in the kitchen cupboards; the food in the kitchen was old and moldy; the rooms smelled like urine and feces; and the lights would not turn on even though there was electricity in the house. In addition, the floor of the child’s room was covered with clothes, trash, and dirt, and smelled like urine and mold. The couch where the girl was supposedly sleeping was covered with clothes and cobwebs, and there was no room for her to lie down.

Section 827.03(3)(a)(1), Florida Statutes (2010), defines child neglect as:

A caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child.

Such failure or omission may be based on repeated conduct or, as in the present case, on a “single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury [] to a child.” § 827.03, Fla. Stat.

To prove child neglect, the State is required to show the defendant acted willfully or with culpable negligence in creating the situation or in allowing the questionable conditions to occur. See § 827.03(3)(c), Fla. Stat. (2010); see also Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000). Moreover, the State must present evidence that the defendant’s act or omission “created a potential risk of serious — not minimal — harm to the child.” Arnold, 755 So.2d at 799. Expert testimony is not required to prove the risk of mental or physical injury. Id.

In the instant case, the State failed to present evidence that the condition of Parrish’s home created a potential mental or physical danger to the child. For instance, there was no evidence the child was unclothed, unsupervised or unfed. To the contrary, the child’s teacher and aunt both testified the child appeared in good health and well groomed. Even Officer Connell testified the girl was friendly and talkative. As a result, there was insufficient evidence of child neglect based on the condition of Parrish’s home.

There is also insufficient evidence that the confrontation between Parrish and Newberry created a risk of serious physical or mental injury to the child. In fact, the evidence contradicts such a finding. For instance, regarding any potential physical injury, Officer Newberry specifically testified the child was not at risk of being shot. The evidence further shows Newberry lowered his weapon when the child came outside and Parrish complied with Newberry’s commands to keep his hands on the table. Thus, neither Parrish nor Newberry presented a physical threat to the child. With respect to any mental harm, the evidence presented does not establish the child suffered or could reasonably be expected to suffer “mental injury.” In other words, there is no evidence Parrish’s refusal to send his daughter inside during the altercation “could reasonably be expected to result in an injury to the intellectual or psychological capacity of the child, as evidenced by a discernable and substantial impairment in the ability to function within the normal range of performance and behavior.” § 39.01, Fla. Stat (2010); see DuFresne v. State, 826 So.2d 272, 278-79 (Fla.2002) (reading chapter 39 in pari materia with section 827.03 to supply a definition for “mental injury”). In fact, the evidence shows that, ten to fifteen minutes after the altercation, the child was calm, friendly and talkative.

Because the State failed to present evidence that Parrish’s actions/omissions placed his child at risk of serious injury, even when considering all reasonable inferences in a light most favorable to the State, there is insufficient evidence to support a conviction for child neglect.

Revocation of Probation

Following the jury trial, the court held a VOP hearing in which it found Parrish violated conditions 4 and 5 of his probation. Specifically, the court held Parrish was in possession of a deadly weapon — a BB gun — and he committed new crimes while on probation. On appeal, Parrish argues, among other things, that the revocation of probation order should be reversed because the BB gun did not qualify as a deadly weapon under section 790.001(13), Florida Statutes (2010). He is correct.

Section 790.001(13), Florida Statutes (2010), defines a weapon as “any dirk, knife, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife, plastic knife, or blunt-bladed table knife.” (Emphasis added). A deadly weapon is one likely to cause death or great bodily injury. See Dale v. State, 703 So.2d 1045, 1047 (Fla.1997). Whether or not the weapon involved is to be classified as “deadly” is a factual question to be resolved by the trier of fact. Id.

The fact that a BB gun is recovered without BBs or a C02 cartridge is not dispositive of whether it is a “deadly weapon.” See Dale, 703 So.2d at 1047. However, where a BB gun is not loaded, and no additional evidence is introduced to establish its capacity to inflict death or great bodily harm, courts have held the evidence insufficient to call it a “deadly weapon.” See K.C. v. State, 49 So.3d 841 (Fla. 4th DCA 2010) (reversing a conviction for possession of a BB gun on school property where there was no evidence the gun was loaded and no testimony describing its operation or the nature and character of injuries it was capable of inflicting); see also E.S. v. State, 886 So.2d 311, 312 (Fla. 3d DCA 2004) (reversing a conviction for carrying a concealed weapon where the BB gun was introduced into evidence, but no cartridges were found and an officer testified only that the gun was “capable of inflicting injury”).

In the instant case, there was no evidence presented establishing the BB gun was functional. Moreover, the evidence showed there was no C02 cartridge or BBs in the BB gun or in the vicinity of where the BB gun was found in the home. The only evidence that might have demonstrated the BB gun was operational was Officer Newberry’s testimony recounting the battery victim’s statements to him in which the victim claimed he had been shot. However, Newberry also testified there were no marks on the victim’s skin indicating he had been shot and that the victim seemed to be intoxicated during their interview. As a result, this statement by the victim to Newberry is insufficient to establish the BB gun was operational, given that the BB gun was found without a C02 cartridge or BBs shortly after the altercation. Because there was no evidence the BB gun was operational, the court abused its discretion when it found the BB gun was a “deadly weapon.” Consequently, the trial court erred when it found that Parrish violated condition 4 of his probation.

Conclusion

Because there was no evidence Parrish’s actions/omissions could reasonably be expected to result in serious physical or mental injury to the child, the State failed to prove every essential element of the child neglect charge. In addition, with respect to the revocation of probation, the trial court abused its discretion in revoking probation based on possession of a weapon as there was insufficient evidence to establish that the BB gun was a deadly weapon. For the foregoing reasons, we reverse and remand for the trial court to vacate the child neglect conviction, remove the unsupported violation of condition 4 from the revocation of probation order, and hold a new VOP hearing consistent with this opinion.

REVERSED and REMANDED.

VAN NORTWICK, PADOVANO, and HAWKES, JJ., concur.

      . It was later discovered to be a BB gun.


text:
    Mary Therese CHARLES, Appellant, v. COUNTRYWIDE HOME LOANS, INC., Appellee.
    No. 3D10-3198.
    District Court of Appeal of Florida, Third District.
    July 27, 2011.
    Rehearing Denied Aug. 26, 2011.
    James Jean-Francois, for appellant.
    Berman Rennert Vogel & Mandler and Thomas S. Ward, for appellee.
    Before CORTIÑAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Tribeca Lending Corp. v. Real Estate Depot, Inc., 42 So.3d 258 (Fla. 4th DCA 2010).


text:
    David MARCANO, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1658.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2011.
    David Marcano, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Cruz v. State, 742 So.2d 489 (Fla. 3d DCA 1999).

ORFINGER, C.J., MONACO and TORPY, JJ., concur.


text:
    Keefe WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1149.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Alvarez v. State, 827 So.2d 269 (Fla. 4th DCA 2002), review denied, 845 So.2d 887 (Fla.2003).

SAWAYA, MONACO and TORPY, JJ., concur.


text:
    Franklin Armando CANALES-ORDONEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-2101.
    District Court of Appeal of Florida, Fifth District.
    Aug. 2, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Pate, 656 So.2d 1323 (Fla. 5th DCA 1995).

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


author: ALTENBERND, Judge.

text:
    B & I CONTRACTORS, INC., Appellant, v. MEL RE CONSTRUCTION MANAGEMENT, f/k/a Mel Re Construction, Inc.; and Bella Casa, LLC, Appellees.
    No. 2D10-2974.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.

      Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, for Appellant.
    Robert A. Stok and Daniel M. Brennan of Stok & Associates, P.A., Aventura, for Appellees.
   ALTENBERND, Judge.

B & I Contractors, Inc., appeals an order denying its motion for proceedings supplementary pursuant to section 56.29, Florida Statutes (2009). The trial court denied the motion after the initial, nonevi-dentiary hearing addressing this post-judgment proceeding. The order does not explain the basis for the denial. We conclude that the motion is facially sufficient and that the trial court should have granted the motion. On remand, the trial court may have authority to limit the nature and scope of the proceedings supplementary or to restrict or deny impleader of third parties, but at the initial hearing it could not simply refuse to conduct any proceedings on this motion.

I. The Facts.

B & I is a mechanical, electrical, and plumbing contractor that had a subcontract with Mel Re Construction Management to do work on a project owned by Bella Casa, LLC. Allegedly, Edward Adkins owns and controls Mel Re and Bella Casa, but Mr. Adkins is not a party to these proceedings. B & I filed the circuit court action against Mel Re and Bella Casa seeking payment for work that it performed on the project. Ultimately, it obtained a judgment against Mel Re for $190,212.71 in September 2009 in case number 07-CA-006268. The judgment remains unpaid and is the source of B & I’s efforts to obtain proceedings supplementary.

Before B & I obtained the final judgment, the parties had apparently expanded the lawsuit to include a third-party action by Bella Casa against the Bank of Florida. Bella Casa allegedly brought this third-party action as a trustee or nominee for the benefit of subcontractors, including B & I. In a written settlement agreement identifying a separate action, case number 08-CA-003759, the Bank of Florida, Mel Re, Mr. Adkins, Mr. Adkins’s wife, and several other persons or entities allegedly settled this third-party action. B & I was not a participant in this settlement, which occurred shortly before B & I obtained its judgment.

B & I maintains that by releasing the bank in this written settlement, Mel Re gave up a chose in action that was a valuable asset that it could and should have used to pay B & I’s claim. It argues that Mel Re gave up this chose in action in order to obtain a release of Mr. Adkins’s personal liability on a guarantee. B & I also argues that this settlement was a fraudulent conveyance of Mel Re’s property that Mel Re could have used to satisfy its judgment. We emphasize that the Bank of Florida, Mr. Adkins, and the other parties to the written settlement agreement are not parties to this appeal because the trial court denied the motion for proceedings supplementary at its inception. Thus, it is likely that Mr. Adkins and the bank would provide a different explanation of these events. However, for purposes of this appeal, we are required to accept the pleadings at face value.

When the judgment against Mel Re remained unsatisfied, B & I filed a motion for proceedings supplementary to execution combined with a motion to implead parties in February 2010. The motion alleges the circumstances described in the preceding paragraphs. B & I attached several exhibits to the motion, including an affidavit in compliance with section 56.29(1), the final judgment, the settlement agreement, and the fact information sheet created in compliance with Florida Rule of Civil Procedure 1.560(b).

There is no transcript of the hearing on this motion. The trial court’s minutes indicate that attorneys representing the proposed third parties appeared at this hearing and argued that B & I could not implead them because it did not obtain a judgment until after the parties had executed the settlement agreement. The trial court entered a very short order denying the motion for proceedings supplementary. It did not rule on the motion to implead third parties, presumably because its ruling rendered that motion moot.

II. Proceedings Supplementary

Section 56.29 provides for proceedings supplementary. The legislature enacted the statute in 1919, and it has remained largely unchanged throughout the last ninety years. See Ch. 7842, Laws of Fla. (1919). Although there are several rules of civil procedure addressing execution of judgments and collection thereon, see Fla. R. Civ. P. 1.550-1.570, there are no rules that assist an attorney with the filing of proceedings supplementary. The practitioner must rely on a limited body of cases discussing this statute and several treatises that provide assistance. See, e.g., Bruce J. Berman, Berman’s Florida Civil Procedure §§ 550.9-.10, 560.4 (2010-11 ed.2010); Guy P. Coburn, Creditors’ & Debtors’ Practice in Florida § 11.6 et seq. (2007); Philip J. Padovano, Florida Civil Practice § 13:6 (2011 ed. 2010).

On the face of the statute, a party commences these proceedings not by filing a motion, but by filing an affidavit. In the affidavit, the affiant must attest that he or she holds an unsatisfied judgment obtained under chapter 55, identify the issuing court and case number, state the unsatisfied amount of the judgment, and confirm that the execution is valid and outstanding. By filing such an affidavit, the holder “is entitled to these proceedings supplementary to execution.” § 56.29(1).

Obviously, any lawyer today would be uncomfortable with the idea of obtaining action from a trial court by affidavit, and most judges would not expect to be required to take action based solely on an affidavit. Thus, the relevant treatises discuss commencing the proceeding by motion and provide sample motions. See, e.g., Coburn, Creditors’ & Debtors’ Practice in Florida § 11.9. In this case, B & I filed such a motion, attaching the affidavit that “entitled” it to proceedings supplemental.

At least in some circumstances, the existing case law allows a judgment holder to pursue a chose in action in proceedings supplementary even if it is necessary to implead third parties to obtain rights over the chose in action. See, e.g., Gen. Guar. Ins. Co. of Fla. v. DaCosta, 190 So.2d 211 (Fla. 3d DCA 1966). On its face, this statute allows the holder to pursue property that the debtor held within one year of the service of process. See § 56.29(6)(a). The statute also allows the holder to pursue property that the debtor transferred or conveyed in order to defraud creditors. See § 56.29(6)(b).

We conclude that the trial court erred in denying B & I’s entitlement to proceedings supplementary in light of the facial sufficiency of its pleadings and affidavit. If the trial court has a proper reason to limit these proceedings or to deny im-pleader, that reason is not apparent in this record. Accordingly, we reverse the order on appeal and remand for proceedings supplementary in which the trial court has authority to take any action appropriate under the law.

Reversed and remanded.

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

      . This court has treated this appeal as an appeal of a nonfinal order entered after final judgment under Florida Rule of Appellate Procedure 9.130(a)(4). As such, we have no official record and are relying on a relatively small appendix. We base our description of the "facts” primarily on the allegations in the motion and the representations of counsel in this matter.

      . We express no opinion on the relationship between the treatment of fraudulent conveyances under this statute and the rights and obligations concerning fraudulent transfers established more recently in the Uniform Fraudulent Transfer Act. See §§ 726.101-.201, Fla. Stat. (2009).


author: LAGOA, J.

text:
    CORAL WAY CONDOMINIUM INVESTMENTS, INC., Appellant, v. 21/22 CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D10-1652.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.

      G. Frank Quesada, Coral Gables, and Juan C. Valdes, for appellant.
    Gregory R. Beck and Yaneixa Hermoso, Ft. Lauderdale, for appellee.
    Before SUAREZ and LAGOA, JJ„ and SCHWARTZ, Senior Judge.
   LAGOA, J.

Coral Way Condominium Investments, Inc., appeals from a final judgment of foreclosure entered in favor of 21/22 Condominium Association, Inc. For the following reasons, we affirm.

I. FACTUAL AND PROCEDURAL HISTORY

21/22 Condominium Association, Inc. (the “Association”) is a Florida commercial condominium association created to operate the 21/22 Condominium (the “Condominium”) located in Miami, Florida. Coral Way Condominium Investments, Inc. (“Coral Way”) owns six of the Condominium’s commercial units. In August of 2008, a Special Assessment was passed by the Association in the amount of $348,703.75 to pay for flood damage repairs and cleaning of the air conditioning system’s condenser coil. The Condominium had suffered flood damage when a pipe burst in the building’s air conditioning system caused by sediment build-up in the air conditioning system’s lines. This flood damage included damage to the Condominium’s only functional elevator at the time.

Coral Way disputed the need and validity of the August 2008 Special Assessment and demanded that the Association provide proof of the need for such an extensive assessment. Coral Way eventually was given access to the Association’s records for 2008 and limited access to the records for 2007. Its review allegedly revealed that the Association had paid, as a common expense and as a charge to all unit owners, expenses that were not common expenses, including payments for maintenance expenses that did not concern common elements and improper payment of legal fees that were not incurred by the Association. Additionally, the records allegedly revealed that the Association had received a lump sum payment in connection with a rooftop lease that had not been accounted for.

The Association demanded payment of Coral Way’s portion of the Special Assessment, plus interest, attorneys’ fees and costs and provided Coral Way with notice that it would record separate claims of lien against each of Coral Way’s respective units. Coral Way refused to pay the special assessment and the claims of lien were subsequently recorded on May 14, 2009. On June 10, 2009, the Association filed its complaint against Coral Way seeking to foreclose the claims of lien. Coral Way responded to the Association’s complaint and filed its own counterclaim, raising breach of fiduciary duty as both an affirmative defense and a counterclaim. The Association subsequently moved for summary judgment as to its complaint and on March 30, 2010, the trial court granted the Association’s motion and entered a final summary judgment of foreclosure against Coral Way.

II. ANALYSIS

We review a trial court’s ruling on a motion for summary judgment de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Coral Way argues that the trial court erred in granting summary judgment in favor of the Association because the validity of the special assessment at issue remained a contested fact. See Fisher v. Tanglewood at Suntree Country Club Condo. Ass’n, 669 So.2d 1050 (Fla. 5th DCA 1995) (holding that summary judgment which permitted foreclosure of a lien securing assessments was improper where the validity of the assessments remained a contested fact). Coral Way also contends that the trial court improperly severed the foreclosure action from Coral Way’s amended counterclaim for breach of fiduciary duty because the facts underlying each claim are inextricably interwoven. We address each argument in turn.

A. Validity of Summary Judgment of Foreclosure

The record demonstrates that no genuine issue of material fact exists as to the validity of the special assessment. A condominium association has the power to make and collect assessments for common expenses. See §§ 718.111(4), 718.115(2), Fla. Stat. (2009). The common expenses of an association include expenses incurred in the operation, maintenance, repair or replacement of the common elements, and any other expense designated as a common expense by the association’s declaration or bylaws. § 718.115(1), Fla. Stat. (2009). The common elements of a condominium include condominium property which is not included within the units. § 718.108(1)(a), Fla. Stat. (2009).

It is undisputed that the special assessment at issue here was passed to pay for maintenance of the building’s air conditioning system and repair of the building’s elevator, both common elements of the building. Furthermore, it is undisputed that the special assessment was passed in the manner required by the Condominium’s bylaws. A special meeting was called by the Association and appropriate notice of the meeting was sent to Coral Way. At the special meeting a quorum was present and the special assessment was passed by a majority of those present.

Coral Way does not dispute the foregoing facts. Rather, Coral Way contends that the special assessment would not have been necessary were it not for the Association’s alleged breach of fiduciary duty, which Coral Way argues depleted the Association’s funds. Avoidance of the payment of a valid assessment, however, is not a remedy available to unit owners to cure unauthorized acts by officers or directors of an association. Ocean Trail Unit Owners Ass’n v. Mead, 650 So.2d 4, 7 (Fla.1994). “[I]f the officers or directors of an association act in an unauthorized manner, the unit owners should seek a remedy through elections or, if factually supported, in an action for breach of fiduciary duty.” Id. Thus, while Coral Way’s allegations relating to improper payments made by the Association are the proper subject of an independent, affirmative claim for breach of fiduciary duty against the Association, those allegations are not a valid defense or avoidance to payment of the special assessment.

“[A] unit owner’s duty to pay assessments is conditional solely on whether the unit owner holds title to a condominium unit and whether the assessment conforms to the declaration of condominium and bylaws of the association, which are authorized by chapter 718, Florida Statutes.” Id. (emphasis added). It is undisputed that Coral Way holds title to the condominium units. Furthermore, as discussed above, the assessment conforms to the declaration of condominium and the Association’s bylaws. Accordingly, no genuine issue of material fact exists as to the validity of the special assessment and Coral Way was obligated to pay the special assessment.

Moreover, even if we were to accept Coral Way’s allegations of breach of fiduciary duty as a defense in this matter, that defense would not overcome Coral Way’s obligation to pay the special assessment at issue, as insufficiency of funds is not a prerequisite to the passing of a special assessment. The Association’s bylaws permit the Association to levy special assessments, “should such be required by the Board of Directors,” in the same manner as any other assessment. The Condominium’s governing documents do not require the Association to exhaust all funds prior to making and passing any assessment. Furthermore, Coral Way provides no case law to support its argument that an association must exhaust all funds before making a special assessment.

Based on the foregoing, no genuine issue of material fact exists as to the validity of the special assessment, and the trial court properly granted summary judgment to the Association.

B. Severing of Complaint and Counterclaim

The trial court properly severed the Complaint and the Counterclaim, as the facts giving rise to each claim are not inextricably interwoven. As discussed above, the Association’s foreclosure action arose as a result of Coral Way’s failure to pay the August 2008 Special Assessment, and it is undisputed that the Special Assessment was duly passed for the payment of common expenses — the repair of the elevator and maintenance of the air conditioning system — resulting from a flood in the building.

Coral Way’s claim for breach of fiduciary duty, in turn, arose from payments allegedly made by the Association for expenses unrelated to the flood that were not common expenses including payments for maintenance expenses that did not concern common elements and improper payment of legal fees that were not incurred by the Association. Coral Way also charged the Association with receiving a lump sum payment in connection with a rooftop lease that was not accounted for. The only connection between each party’s claim is Coral Way’s argument that the Special Assessment would not have been necessary but for the Association’s breach of fiduciary duty. As discussed above, that argument is not legally relevant to the Association’s claim for foreclosure.

Moreover, any breach of fiduciary duty on the part of the Association’s officers and directors would not obviate Coral Way’s duty to pay the special assessment. Instead, any success on its claim for breach of fiduciary duty would entitle Coral Way only to reimbursement of dues paid toward the purported improper expenditures. Coral Way would remain responsible for payment of the special assessment. Thus, even if Coral Way were successful on its counterclaim, the Association would still be entitled to enforce its claim of lien against Coral Way for its failure to pay the special assessment. Accordingly, the Association’s Complaint could be properly severed from Coral Way’s Counterclaim.

III. CONCLUSION

For the foregoing reasons, we affirm the trial court’s final summary judgment of foreclosure in favor of the Association.

Affirmed.

      . The Condominium’s second elevator was undergoing renovations at the time unrelated to the flood damage.


author: CONNER, J.

text:
    Christopher HUTSON d/b/a South Florida MRI, LLC, and Christopher Hutson, individually, Appellants, v. PLANTATION OPEN MRI, LLC, Appellee.
    No. 4D10-775.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.

      Bradford J. Beilly and John Strohsahll of Bradford J. Beilly, P.A., Fort Lauder-dale, for appellants.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   CONNER, J.

Christopher Hutson (“Hutson”) appeals the denial of (1) his motion to amend his answer to include affirmative defenses and (2) the entry of summary judgment against him. Having determined the trial court abused its discretion in not granting the motion to amend and improperly granting the motion for summary judgment, we reverse.

Hutson, as President of South Florida MRI, LLC, executed a commercial sublease agreement to lease magnetic resonance image (MRI) equipment from Ap-pellee, Plantation Open MRI, LLC (“Plantation MRI”), for thirty-two months. Hutson personally guaranteed payment of the rent due under the sublease.

Less than one month after he signed the agreement, Hutson failed to pay the lease installment due November 1, 2008. On November 10, 2008, South Florida MRI tendered a check signed by Hutson to Plantation MRI in the sum of $8,549.66. The check was returned for insufficient funds. On November 18, 2008, South Florida MRI tendered a second check to Plantation MRI, also signed by Hutson, in the amount of $3,549.66. The second check was also returned for insufficient funds. Hutson never paid the amounts reflected in the dishonored checks. Plantation MRI sent the statutory notices concerning the dishonored checks to entitle it to claim treble damages.

In June, 2009, Plantation MRI filed a three-count complaint against Hutson seeking damages for breach of the sublease agreement and guaranty (count I), and damages for the two dishonored checks (counts II and III). In July, 2009, Hutson filed a pro se answer to the complaint in which he denied “each and every allegation” of the complaint. Following the receipt of Hutson’s answer, Plantation MRI served requests for admissions. Hutson never responded to the requests for admissions.

In December, 2009, Plantation MRI served its motion for summary judgment with appropriate affidavits of proof. A hearing was scheduled for January 11, 2010.

On January 7, 2010, Hutson, through counsel, filed and served a motion to amend his answer to include two affirmative defenses. In the first proposed affirmative defense, Hutson alleged that the managing member of Plantation MRI fraudulently misrepresented that he was selling the assets of the MRI business he owned and that by executing the sublease agreement Hutson would be able to fully operate a MRI facility and use all equipment located on the premises. Hutson further alleged that shortly after he entered into the agreement based on those representations, he discovered that Plantation MRI did not own most of the equipment on the premises. Instead, most of the equipment was owned by a completely different company that refused permission for him to use the equipment. In his second proposed affirmative defense, Hut-son alleged there was no intent to defraud when the two dishonored checks were tendered and that the checks were dishonored as a direct result of the economic hardship caused by Plantation MRI’s fraudulent actions.

Hutson gave notice for a hearing on his motion to amend answer to be heard at the same time as Plantation MRI’s motion for summary judgment. He also filed and served a motion for leave to respond to request for admissions, but he did not schedule that motion for hearing.

Also on January 7, Hutson filed his affidavit in opposition to Plantation MRI’s motion for summary judgment and delivered a copy to opposing counsel. In the affidavit Hutson averred, among other things, that the principal of Plantation MRI made fraudulent representations to him in order to induce him to enter the sublease and that many of the items purportedly leased in the sublease contract were actually owned by a third party who ultimately issued Hutson a cease and desist letter with respect to Hutson’s use of those items. In addition, Hutson averred that, with respect to the dishonored checks, there was never any intent by Hutson to defraud Plantation MRI and that the dishonored checks were the direct result of economic hardship incurred by Hutson as a result of Plantation MRI’s fraudulent actions.

At the hearing on January 11, the trial court entered an order that denied Hut-son’s motion to amend and granted Plantation MRI’s motion for summary judgment. Hutson then filed a motion for rehearing of his motion to amend and Plantation MRI’s motion for summary judgment. Without ruling on the motion for rehearing, the trial court entered a final judgment in favor of Plantation MRI for compensatory damages under Count I and statutory treble damages under Counts II and III. Hutson filed an amended motion for rehearing of the motion to amend and motion for summary judgment, which was denied.

The denial of a motion to amend is reviewed for abuse of discretion. See Noble v. Martin Mem’l Hosp. Ass’n, 710 So.2d 567, 568 (Fla. 4th DCA 1997). Florida Rule of Civil Procedure 1.190(a) provides that leave to amend shall be given freely when justice so requires. In addition, courts “should be especially liberal when leave to amend is sought at or before a hearing on a motion for summary judgment.” Quality Roof Servs., Inc. v. Intervest Nat’l Bank, 21 So.3d 883, 885 (Fla. 4th DCA 2009) (quoting Thompson v. Bank of New York, 862 So.2d 768, 770 (Fla. 4th DCA 2003)) (emphasis added).

“[R]efusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993); accord Carter v. Ferrell, 666 So.2d 556 (Fla. 2d DCA 1995). “The primary consideration in determining whether a motion for leave to amend should be granted is a test of prejudice. . . .” Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680, 681 (Fla. 4th DCA 2001). The action below was not set for trial and Plantation MRI would have suffered no prejudice if the trial court granted Hutson’s motion to amend. Hutson had not previously requested to amend his answer, and despite the argument of Plantation MRI to the contrary, the amendment would not have been futile.

Plantation MRI contends in its brief that Hutson denied signing the sublease agreement, guaranty, and dishonored checks when he denied “each and every allegation in the complaint.” Plantation MRI further argues that since Hutson did not move to amend his original pro se answer, denial of the motion to amend was proper because the proposed affirmative defenses would have created an inconsistency in the pleadings, thus making the amendment futile. Plantation MRI attempts to bolster the argument of potential inconsistency in the pleadings by pointing out that the unanswered request for admissions establishes that Hutson signed the contract, guaranty, and dishonored checks. We find the argument lacks merit. The complaint alleged that Hutson “entered into an agreement,” and that South Florida MRI “executed a written order for payment of $3,549.66 commonly called a check....” Nowhere in the complaint does it explicitly allege that Hutson signed anything. Similarly, the request for admissions served on Hutson makes no explicit factual statement about Hutson signing anything. Further, it is appropriate for one to deny “entering into an agreement” to purchase equipment if one discovers after signing a written agreement that the purported seller does not own the equipment. The original answer filed by Hutson pro se is not inconsistent with the allegations of the affirmative defenses proposed by Hutson’s counsel and the amended answer adding affirmative defenses would not have been futile.

Hutson served his motion to amend four days prior to the hearing on Plantation MRI’s motion for summary judgment and noticed his motion for hearing on the same day as motion for summary judgment. The trial court improperly denied the motion.

Hutson timely served an affidavit in opposition to the motion for summary judgment that raised material issues of fact with respect to all three counts set forth in the complaint. With respect to count I (the count alleging breach of contract and the guaranty), Hutson averred with specificity that the agreement sued upon was procured by fraud. The affidavit raised material issues of fact as to whether Plantation MRI had the authority to enter into the sublease agreement. With respect to counts II and III (the counts alleging dishonored checks), Hutson averred that the checks did not clear due to insufficient funds as a direct result of the economic hardship caused by Plantation MRI’s actions. Section 68.065(6), Florida Statutes, provides that “[i]f the court or jury determines that the failure of the maker or drawer to satisfy the dishonored check was due to economic hardship, the court or jury has the discretion to waive all or part of the statutory damages.” As Hutson averred in the affidavit that the checks were dishonored as a result of economic hardship, this raised a question of material fact that should have been decided by the fact finder at a trial and not a hearing on a motion for summary judgment. F & A Dairy Prods., Inc. v. Imperial Food Distribs., Inc., 798 So.2d 803, 804 (Fla. 4th DCA 2001).

We reverse the decisions of the trial court and remand for the trial court to vacate the summary judgment in favor of Plantation MRI and grant Hutson’s motion to amend his answer to add affirmative defenses.

WARNER and LEVINE JJ., concur.


author: MAY, C.J.

text:
    Randy Lee BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-5282.
    District Court of Appeal of Florida, Fourth District.
    Aug. 3, 2011.

      Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, C.J.

The defendant appeals his conviction and sentence on the charge of possession of cocaine and sale of cocaine within a thousand feet of a school. He argues the trial court erred in denying his motion for continuance on the day trial was set to begin. Under the special circumstances of this case, we agree and reverse.

The State charged the defendant with sale/delivery of cocaine within a thousand feet of a school and possession of cocaine. The defendant retained an attorney to represent him on the criminal charges. On the day of trial, defense counsel expressed concern about charges pending against him personally and asked the court that, if any juror had knowledge of the pending charges, it would be handled outside the presence of other jurors. The court indicated it would handle the issue outside the presence of the other jurors.

When the defendant was brought to court, he filed a pro se “Motion to Dismiss Attorney for Gross Negligence.” The motion alleged that defense counsel was not prepared for trial, had a conflict due to counsel’s request for additional funds, and expressed concern about his counsel’s own legal problems. The defendant requested a continuance. Defense counsel advised the court that his client wanted to discharge him. The court responded: “Well, Mr. Brown, you can, it’s a private attorney. You can discharge your attorney for no reason whatsoever if you want to. You don’t have to have a reason.” The defendant indicated that he wanted another lawyer from the same firm to represent him. The court then stated:

You can hire and fire any lawyer you want to. I mean, that’s your choice to get anybody you want. Just we’re here for trial today. You can’t wait until the morning of trial with jurors downstairs and tell me I want [to] change lawyers. I mean, we’re not here to accommodate you. We can’t do that.
You can either have [defense counsel] represent you this morning or you can fire [him] and represent yourself. We’re not going to continue your case just because, you have been in jail a long time. We need to get this case done. The witnesses are here and jurors are here. It’s, those are your two choices. Which of those do you want to have?

The defendant indicated that he could not represent himself. He did not have a choice, but did not understand why other defendants received continuances.

The court noted the defendant’s case had been continued numerous times, and advised him about the precautions that it had instituted to protect against his concerns about his counsel’s own legal problems. The court assured the defendant that no juror would have any concerns about defense counsel. With that assurance, voir dire commenced.

The evidence established that a confidential informant sought to purchase cocaine from the defendant. A surveillance team witnessed the transaction. The confidential informant got into the defendant’s vehicle, purchased cocaine from him, and returned to her vehicle, where an undercover deputy waited. A forensic chemist found the presence of cocaine. The jury found the defendant guilty.

After the verdict, but before sentencing, the defendant moved to dismiss his attorney for gross negligence. Defense counsel moved to withdraw, informing the court that he did not wish to discuss the issue in detail because the defendant’s sentencing was pending. The court granted the motion to withdraw and appointed the public defender to represent the defendant.

The trial court sentenced the defendant to life as a habitual offender for the sale/delivery of cocaine near a school, and five years concurrently for possession of cocaine.

On appeal, the defendant argues the trial court erred in denying his motion for continuance and in failing to conduct an inquiry on his pro se motion to dismiss his retained counsel. The State responds there was no abuse of discretion in the court’s denial of the defendant’s eleventh hour request for a continuance, and that Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973), does not apply to privately retained counsel.

“The granting or denial of a motion for continuance is within the trial court’s discretion.” Wade v. State, 30 So.3d 640, 642 (Fla. 4th DCA 2010). “ ‘A trial court’s ruling denying a motion to discharge counsel will not be reversed absent an abuse of discretion.’ ” Luxama v. State, 1 So.3d 1146, 1147 (Fla. 4th DCA 2009) (quoting Soto v. State, 751 So.2d 633, 636 (Fla. 4th DCA 1999)).

A Nelson inquiry is unwarranted when a defendant is not seeking to discharge court-appointed counsel or to be represented by court-appointed counsel. Foster v. State, 704 So.2d 169, 172-73 (Fla. 4th DCA 1997). While we have held a Nelson inquiry is inappropriate under such circumstances, the United States Supreme Court has held that when a trial court knows or reasonably should know that a particular conflict exists between client and counsel, it should initiate an inquiry into the representation. Cuyler v. Sullivan, 446 U.S. 335, 347, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980).

We agree that a full Nelson inquiry was unwarranted because the defendant was represented by privately retained counsel and sought to secure another privately retained counsel. However, the trial court’s denial of the defendant’s motion for continuance and unwillingness to give due consideration to the unusual circumstance of defense counsel’s own legal problems causes us to reverse.

The First District Court of Appeal has identified seven criteria to be considered when evaluating a motion for continuance. McKay v. State, 504 So.2d 1280, 1282 (Fla. 1st DCA 1986). They include:

1) the time available for preparation,
2) the likelihood of prejudice from the denial,
3) the defendant’s role in shortening preparation time,
4) the complexity of the case,
5) the availability of discovery,
6) the adequacy of counsel actually provided and
7) the skill and experience of chosen counsel and his pre-retention experience with either the defendant or the alleged crime.

Id. We adopted this test in D.N. v. State, 855 So.2d 258, 260 (Fla. 4th DCA 2003). Applying the criteria to this case, we conclude the trial court abused its discretion in denying the motion for continuance.

While the trial court appeared frustrated by the defendant’s last minute request, it was incumbent on the court to review the criteria before denying the motion simply to move the case to trial. It is unclear how much time trial counsel had for preparation and what role the defendant played in shortening preparation time, even though it appears the case had been pending for some time. The case was not complex. There did not seem to be any problem with discovery.

The next three factors all weigh heavily in favor of the continuance. The defendant alleged his counsel was unprepared, wanted more money, and was under indictment. Although the court attempted to protect the jurors from having any information concerning the attorney’s legal problems, we are unable to discern from this record precisely what legal problem his counsel faced and how they would impact his effectiveness at trial. We cannot tell how long the defendant was aware of the issue and whether there was any delay in raising the issue. The likelihood of prejudice is great. Without a doubt the defendant did not think his counsel was adequate. Even though prior continuances had been granted, this unique set of circumstances warranted at the very least a full consideration of the facts to determine if a continuance was needed to ensure the defendant’s right to counsel and a fair trial.

For these reasons, we find the trial court abused its discretion in denying the continuance. We reverse and remand the case for a new trial.

Reversed and Remanded for a new trial.

WARNER, J., and MONACO, TOBY S., Associate Judge, concur.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).


author: SUAREZ, J.

text:
    CLARIDGE H, LLC, Appellant, v. CLARIDGE HOTEL, LC, Intervento Investments, Ltd., a British Virgin Islands corporation, and Starcove Limited, a British Virgin Islands corporation, Appellees.
    No. 3D10-1450.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.

      Clark, Robb, Mason Coulombe & Busch-man, Joe Clark, and James K. Clark, Miami, for appellant.
    Tew Cardenas and Matías R. Dorta, Miami, for appellees.
    Before SUAREZ and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Claridge H, LLC, appeals from a directed verdict in favor of plaintiff below Claridge Hotel, LC, et al. impermissively granted after the plaintiff rested and prior to the defendant having an opportunity to present any evidence. We reverse and remand for a new trial.

Claridge Hotel, LC, the seller below, filed suit against the buyer, Claridge H, LLC, for breach of contract and declaratory relief arising out of the buyer’s refusal to consummate an agreement to purchase the Claridge Hotel on Miami Beach. The buyer, Claridge H, LLC, filed a counterclaim for breach of contract and fraudulent inducement arising from that contract. The two issues that were to be determined at the scheduled two-day bench trial were (1) whether the seller breached the contract by refusing to provide loan documents for certain unsecured loans; and (2) whether the seller’s website representation, stating that the hotel rooftop terrace could hold 120 people for events, amounted to fraudulent inducement. At the end of the first day of trial and at the close of plaintiff/seller’s case in chief, the plaintiff moved for a directed verdict. The court granted the plaintiffs motion for a directed verdict, determining that the seller’s disclosures were sufficient to close the sale, and that the issue of the terrace rooftop capacity was not material to a $12 million dollar purchase. The defendant buyer was not given any opportunity to present its case in chief, although it had witnesses present in court who would offer opposing evidence and testimony regarding the fraudulent inducement issue.

We find that the trial court’s determination of the disputed issues in plaintiffs favor — without first giving the defendant any opportunity to present its case— was error. Numerous cases hold that a directed verdict cannot be entered until each party has an opportunity to present relevant evidence in its case in chief. See, e.g., Searock v. Babcock, 667 So.2d 853, 853 (Fla. 3d DCA 1996) (“[T]he trial court erred in granting a directed verdict for [plaintiff] and in depriving [defendant] of the ability to present its case.... ‘[Doing] so would constitute a denial of due process of law.’ ”); Sheldon Greene & Assocs., Inc. v. Williams Island Assocs., 550 So.2d 1142 (Fla. 3d DCA 1989); Trio Towing Serv., Inc. v. Murrell, 325 So.2d 21, 22 (Fla. 3d DCA 1975) (“[A]fter finding error in the directed verdict for the defendants in the earlier proceeding we made a mistake in directing the trial judge to direct a verdict for the plaintiff ... we should have returned the matter to the trial court for further proceedings in accordance with the rules of civil procedure and ordinary due process.”); Pelle v. Diners Club, 287 So.2d 737, 738 (Fla. 3d DCA 1974) (holding that it was a violation of due process to grant a directed verdict in favor of plaintiff before the defendant had an opportunity to present his case-in-chief); see also Fla. R. Civ. P. 1.480.

The appellee relies on Aouate v. Hotel Europe, Inc., 792 So.2d 596 (Fla. 3d DCA 2001), for the proposition that the directed verdict was not granted in error. That case is clearly distinguishable. In Aouate, also a breach of contract action, the trial court granted a directed verdict in the plaintiffs favor before the defendant had completed its case in chief. The defendant in that case was allowed to call several witnesses; the only evidence the defendant was not allowed to present, however, was deemed irrelevant parole evidence relating to the unambiguous terms of the contract. Id.

In the instant case, the plaintiff/seller called an expert witness to demonstrate that the rooftop terrace capacity was immaterial to the purchase of a $12 million hotel. The trial court should have allowed defendant/buyer to call its own witnesses and offer its own evidence to argue that the rooftop terrace capacity issue was, indeed, material to the contract. As the appellant was not given any opportunity to call witnesses or to present any evidence regarding the fraudulent inducement issue, the appellant was effectively denied due process.

We therefore reverse the directed verdict and remand for a new trial in which both parties are afforded the opportunity to present evidence and argument going to the disputed issues.

Reversed, and remanded for a new trial.

      . Claridge H., LLC also filed a third party complaint for breach of contract against In-tervento Investments, Ltd., and Starcove Limited, the principals of the hotel management company that the defendant was also purchasing along with the hotel.

      . See also Dep’t of HRS v. Marlow, 448 So.2d 1106, 1109 (Fla. 1st DCA 1984) (stating that it was improper for the court to direct a verdict for the plaintiff before the defendant had a chance to present its case); Dodge v. Weiss, 191 So.2d 71, 73 (Fla. 1st DCA 1966) ("[a] motion for a directed verdict cannot, of course, be properly made by the defendant until the plaintiff has completed the presentation of his evidence,” because the rule contemplates that the movant will move for directed verdict at the close of the evidence offered by the adverse party); Sapp v. Redding, 178 So.2d 204, 207 (Fla. 1st DCA 1965) ("[a] defendant ... cannot properly make a motion for a directed verdict before the plaintiff has completed the presentation of his evidence,” because the directed verdict rule contemplates that the movant will move for directed verdict at the close of the evidence offered by the adverse party); Carmichael v. Shelley Tractor & Equip. Co., 300 So.2d 298, 299 (Fla. 4th DCA 1974) ("At trial upon the issues made by the pleadings, a party may not move for and obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief. Otherwise, such party would be denied due process of law.”); Zerillo v. Snapper Power Equip., 562 So.2d 819, 820 (Fla. 4th DCA 1990) ("[A] party may not obtain a directed verdict prior to the time that the party moved against has completed his case-in-chief, since to do so would constitute a denial of due process of law.”).


author: RAMIREZ, J. SCHWARTZ, Senior Judge

text:
    HOTEL 71 MEZZ LENDER, LLC, Appellant, v. Walter V. TUTT and Donald J. Purdy, Appellee.
    No. 3D10-489.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.

      Lee B. Gartner, for appellant.
    Siegfried, Rivera, Lerner, De La Torre & Sobel, and H. Hugh McConnell, for ap-pellee.
    Before RAMIREZ, and SALTER, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Hotel 71 Mezz Lender, LLC appeals the final summary judgment entered in favor of the garnishee. We reverse the summary judgment and remand to the trial court for further proceedings because the trial court erred when it entered summary judgment in favor of the garnishee when the garnishee had not moved for summary judgment.

Plaintiff/j udgment creditor Hotel 71 is a Delaware limited liability company located in New York, New York. Guy Mitchell and others are judgment debtors as a result of their default of personal guaranties of a loan that Hotel 71 made to an entity owned and controlled by the judgment debtors in order to acquire and renovate a hotel in Chicago named “Hotel 71.” Mitchell resides in Coral Gables, Florida. Third-party garnishee, J. Wallace Tutt, III, resides in Harbour Island in the Bahamas.

In March 2006, Tutt and Mitchell negotiated for the sale of Caribe Cay, a one-acre island in the Bahamas, to Mitchell for a purchase price of $2.925 million. Tutt and Mitchell never entered into any written contract for that sale. According to Tutt, pursuant to an oral agreement between Tutt and Mitchell, Mitchell began to occupy Caribe Cay as a renter beginning in August 2006. Since then, Mitchell has paid approximately $1.1 million to Tutt for the use of Caribe Cay. In February 2007, Tutt and Mitchell agreed that the $2.925 million purchase price would be reduced by the rental payments to a net $1.8 million.

In April 2007, Hotel 71 sued the judgment debtors in New York for breach of contract. One year later, the New York court entered summary judgment in favor of Hotel 71 and against Mitchell, among others, in the amount of $52,404,066.54. This judgment was registered in Miami-Dade County in July 2008. As of that date, none of the judgment debtors have turned over any money or property in satisfaction of the judgments.

In August 2008, Tutt became aware of the New York judgment and that a receiver had been appointed for Mitchell’s property. On October 8, 2008, in order to identify and seize assets belonging to Mitchell, Hotel 71 served and filed a writ of garnishment directed to Tutt. Tutt answered that he had no tangible or intangible personal property of any of the judgment debtors in his possession or control, that he sold the property in the Bahamas to Mitchell, and that the sale of the Bahamian property was complete with the exception of a final U.S. $7000 payment which Mitchell owed to Tutt. Tutt never completed the sale of Caribe Cay. Mitchell has denied that he owns Caribe Cay.

On October 14, 2008, another creditor of Mitchell, The Formula, Inc., served a garnishment on Tutt and filed an action in Miami-Dade County Circuit Court styled, “The Formula, Inc. v. Royal Palm Hotel Property, LLC d/b/a Royal Palm Hotel Condominium and Guy Mitchell [Defendants] v. J. Wallace Tutt, III [Garnishee] ” (the “Carbon” action). Hotel 71 filed an affidavit in the Carbon action notifying the trial court that Hotel 71 had priority with respect to any assets of Mitchell garnished in the Carbon action from Tutt and asking the court to determine the right of property as between Hotel 71 and Formula.

In September 2009, Carbon and Tutt appeared before the trial court for an evi-dentiary hearing on Carbon’s writ of garnishment. At the hearing, Carbon sought to have Mitchell’s rights under the alleged contract with Tutt for the purchase of Caribe Cay subrogated to Carbon. The trial court determined that Tutt sold Car-ibe Cay to Mitchell and that through the interpleader of Caribe Cay in a Bahamian Court, Tutt would be discharged from any liability to Carbon, Mitchell or Mitchell’s designees, arising out of Carbon’s writ of garnishment action.

At that same time, Hotel 71’s garnishment action was pending before another trial court judge. On October 7, 2009, prior to the Carbon Final Judgment, Hotel 71 moved for summary judgment, seeking judgment for a minimum of $2,755,097.50 (the funds paid by Mitchell to Tutt), plus interest. The trial court transferred the Hotel 71 action to the trial court hearing the Carbon action. Hotel 71 then filed an amended motion for summary judgment, which was the same as the original motion, except it included full copies of relevant deposition transcripts.

Carbon then moved to consolidate the Carbon action and the Hotel 71 action, which the trial court granted. In January 2010, the trial court issued a Final Summary Judgment in favor of garnishee in the Hotel 71 action, granting summary judgment in favor of Tutt, and denying Hotel 71’s motion for summary judgment.

On appeal, Hotel 71 contends that the trial court erred when it granted summary judgment in favor of Tutt because Tutt had not moved for summary judgment. We agree.

Florida Rule of Civil Procedure 1.510(c) provides that a summary judgment motion must “state with particularity the grounds upon which it is based” and must be served at least twenty days from the date on which the hearing is scheduled. The motion must also “specifically identify any affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence ... on which the movant relies.”

Rule 1.510(c) prevents ambush by allowing the nonmoving party to be prepared for issues that will be argued at the summary judgment hearing. See Casa Inv. Co., v. Nestor, 8 So.3d 1219 (Fla. 3d DCA 2009). Failure to comply with the rule deprives the opposing party “of the ability to both adequately respond and prepare for the summary judgment hearing.” Id. at 1221.

The entry of summary judgment in favor of a non-movant is not generally accepted practice. Id. at 1219; Univ. of Miami v. Sosa, 629 So.2d 172, 174 (Fla. 3d DCA 1993). Moreover, as Hotel 71 correctly argues, granting summary judgment to a nonmovant is especially disfavored where the case requires resolution of a number of issues, as is the case before us. See id. As such, appellate courts customarily overturn trial court decisions granting summary judgment to parties that did not serve the required notice. See Casa Inv., 8 So.3d at 1221; Groeber v. Heuring, 690 So.2d 1343, 1344 (Fla. 3d DCA 1997).

As previously stated, the trial court granted summary judgment in Tutt’s favor. This occurred even though Tutt never moved for summary judgment. Hotel 71 properly noticed its motion for summary judgment. In turn, Tutt had the opportunity to submit evidence in opposition to Hotel 71’s motion and to prepare for the hearing on the motion. The entry of summary judgment in Tutt’s favor deprived Hotel 71 of the opportunity to respond to a motion for summary judgment and to prepare for the hearing in which to address this motion.

The entry of summary judgment in Tutt’s favor also constituted error in light of the complex nature of the trial court action. This trial court action involved numerous issues-whether a real property contract exists between Tutt and Mitchell, whether Tutt possesses money that belonged to Mitchell, what improvements were made by Mitchell to Caribe Cay, and whether Mitchell was a renter of Caribe Cay. Consequently, the trial court erred when it entered summary judgment in favor of Tutt when Tutt had not moved for it.

Accordingly, we reverse the summary judgment entered in Tutt’s favor and remand to the trial court for proceedings consistent with this opinion.

Reversed and remanded.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I believe that the trial judge was substantively correct in concluding that, beyond the “slightest doubt,” see Goloubev v. Palm West Home Builders, Inc., 39 So.3d 522, 522 (Fla. 5th DCA 2010); Briggs v. Jupiter Hills Lighthouse Marina, 9 So.3d 29, 31 (Fla. 4th DCA 2009); Franco v. Miami-Dade Cnty., 947 So.2d 512, 515 (Fla. 3d DCA 2006), the appellees were entitled to summary judgment as a matter of law and that the judgment below was procedurally authorized under the line of cases which permits summary judgment for the non-moving party. See Carpineta v. Shields, 70 So.2d 573, 574 (Fla.1954); R & L Constr., Inc. v. Cullen, 557 So.2d 931 (Fla. 5th DCA 1990); Opler v. Wynne, 402 So.2d 1309, 1311 n. 1 (Fla. 3d DCA 1981); Glatstein v. City of Miami, 399 So.2d 1005, 1009 n. 4 (Fla. 3d DCA 1981); King v. L & L Investors, Inc., 133 So.2d 744 (Fla. 3d DCA 1961).

I would affirm.

      . Robert Falor, David Falor, Chris Falor, Geoffrey Hockman and Jennifer Falor.

      . Mitchell is the only judgment debtor who is the subject of this appeal.


author: LaROSE, Judge.

text:
    M.P., Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2046.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

M.P. appeals a judgment and restitution order. See Fla. R. App. P. 9.145(b). M.P. argues, and the State concedes, that he cannot be held jointly or severally liable for $1650 in restitution where the damages occurred independently of his offense. We reverse the trial court’s restitution order.

M.P. pleaded no contest to accessory after the fact to grand theft of a motorcycle, a first-degree misdemeanor. See §§ 777.03, 812.014, Fla. Stat. (2009). Mr. Holland, an acquaintance of M.P., spotted the motorcycle on residential property; a “for sale” sign hung from the motorcycle. Subsequently, at Mr. Holland’s request, M.P. drove him to the property where Mr. Holland obtained permission to “test drive” the motorcycle. Mr. Holland rode off and never returned. M.P. eventually drove to his grandmother’s house. He was charged as an accessory after the fact because he left the scene before the police arrived. No evidence suggested that M.P acted in concert with Mr. Holland to steal the motorcycle.

For restitution to be imposed against M.P., the victim’s loss must be caused directly or indirectly by M.P.’s offense. See § 775.089(l)(a), Fla. Stat. (2009). There must be a significant relationship between the crime committed and damage to the victim. Gourley v. State, 590 So.2d 482, 484 n. 3 (Fla. 1st DCA 1991) (stating the test and noting that a conviction for accessory after the fact is inconsistent with a finding that a defendant and codefendant acted in concert). When evidence does not show that a defendant acted in concert with a codefendant in causing the damages, the trial court should not impose restitution. Id. at 483-84; see also State v. Williams, 520 So.2d 276, 277-78 (Fla.1988) (holding that defendant was not required to pay restitution to the victim where damages to the victim were not caused by defendant’s leaving the scene of the accident); Milton v. State, 644 So.2d 143, 144 (Fla. 2d DCA 1994) (holding that defendant convicted of theft but who was not associated with burglary could not be required to make restitution for any items not included in the information); Faulkner v. State, 582 So.2d 783, 784 (Fla. 5th DCA 1991) (holding that restitution order may be sustained only where State has demonstrated a significant relationship between loss or damage sustained by victim and defendant’s acts in committing the offense for which he was charged and convicted).

M.P. argued to the trial court that restitution should not be imposed because he did not cause the loss and knew nothing about Mr. Holland’s plan to steal the motorcycle. The trial court found “that his criminal conduct led — that the loss was a consequence, at least, in part of his criminal conduct in the case in which he pled.” This finding does not comport with the applicable law. The damages arising from the motorcycle theft would have occurred regardless of whether M.P. was found an accessory after the fact. Consequently, M.P. could not be held liable for restitution.

Reversed.

SILBERMAN, C.J., and MORRIS, J., Concur.


text:
    N.H., Appellant, v. J.E.T., Appellee.
    No. 2D10-4367.
    District Court of Appeal of Florida, Second District.
    Aug. 3, 2011.

      Mark G. Rodriguez of Mark G. Rodriguez, P.A., Tampa, for Appellant.
    Mark A. Sessums and Lacy J. Littlejohn of Sessums Law Group, P.A., Lakeland, for Appellee.
   LaROSE, Judge.

N.H., the mother, appeals a final judgment establishing paternity. She argues that the trial court abused its discretion in ordering weekly rotating custody for her son with the father, J.E.T., without providing her a right of first refusal to have custody should the father encounter work schedule conflicts. She also argues that the trial court abused its discretion in denying her motion for relief from judgment where the judgment specified an incorrect residential address where the parties would exchange custody of the child. That address also served as the center of the parents’ fifty-mile radius within which each could move without further court order. We affirm the final judgment in all respects, except for concluding that remand is necessary to correct N.H.’s address.

The trial court, in its discretion, found shared parental responsibility to be in the child’s best interest. See § 61.13(2)(b), (3), Fla. Stat. (2010). Competent, substantial evidence supports that finding. See Hudson-McCann v. McCann, 8 So.3d 1228, 1229 (Fla. 5th DCA 2009). N.H. argues that the trial court failed to give her a right of first refusal to custody in those instances where the father’s work schedule might affect his time with the son. We see no abuse of discretion by the trial court. The parenting plan allows for modification on a temporary basis when both parents agree in writing; when they do not agree, the parenting plan remains in effect. The child’s best interests will be served by shared parental responsibility and the trial court’s parenting plan.

N.H. also argues that the trial court erred in designating her former Winter Haven residence in the parenting plan. The unrefuted evidence before the trial court showed Lakeland as N.H.’s residence. Thus, we reverse and remand for the trial court to make the necessary correction to N.H.’s address.

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


text:
    Melvin MOYA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1188.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Melvin Moya, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and SALTER, JJ.
   SUAREZ, J.

Melvin Moya appeals from an order denying his motion under Florida Rule of Criminal Procedure 3.800(a) requesting credit for additional jail time served prior to sentencing. We reverse.

Moya maintains that jail records establish his entitlement to 281 pre-sentencing days served, and that he was credited with only fifty-five days for time served. On appeal from a summary denial, this Court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(A), and (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. Varela v. State, 29 So.3d 398, 399 (Fla. 3d DCA 2010). If the trial court once again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts, including transcripts or jail cards, that conclusively show that the appellant is not entitled to the credit for time served as sought.

Reversed and remanded.


text:
    Joel JEAN-LOUIS, Appellant, v. STATE of Florida, Appellee.
    No. 3D11-1848.
    District Court of Appeal of Florida, Third District.
    Aug. 3, 2011.
    Joel Jean-Louis, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   PER CURIAM.

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


author: THOMAS, J.

text:
    Sean Gordon BUSSELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5501.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.

      Jonathan W. Dingus, Panama City, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace and Dixie Daimwood, Assistant Attorneys General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant was charged with 33 counts of possessing child pornography, and a jury found him guilty on six of the charged counts. On appeal, Appellant argues the trial court erred by denying his motion for judgment of acquittal on the six counts for which he was found guilty. We affirm the trial court’s ruling for the reasons discussed herein.

Facts

Evidence produced at trial established that Appellant is an offshore boat captain. He spent significant time away from home, but was home for weeks at a time in the fall of 2007. Appellant testified he downloaded pornography from the internet using a peer-to-peer program, and he recorded the pornography onto compact discs to take with him on the boats.

A Bay County investigator testified he used the same peer-to-peer computer program to track media files known to contain child pornography images and videos. On October 31, 2007, the investigator discovered a computer in the Bay County area was downloading two child pornography media files. He queried the internet protocol address and discovered it had been involved in downloading child pornography on September 6, 10, 13, and 20, 2007. An internet service provider linked the internet protocol address to Appellant’s physical address. A search warrant was obtained, and Appellant’s computer was seized. When the investigator arrived to serve the warrant, he noticed Appellant’s computer was running the peer-to-peer program and was actively downloading what he suspected was child pornography. An FDLE computer analyst confirmed that child pornography was downloaded to the computer October 31, November 7, and November 8, 2007.

Appellant’s wife and son testified for the State. Appellant’s son denied downloading child pornography and testified he was at school when the files were downloaded. Appellant’s wife corroborated Appellant’s testimony that she assisted him in downloading adult pornography to take on offshore work trips, but she denied ever attempting to download child pornography. Appellant testified in his own defense and denied ever downloading child pornography, but admitted he was at home on the days the media files were downloaded.

Appellant moved for judgment of acquittal after the State presented its case, at the close of evidence, and in a post-trial motion. In all three motions, Appellant argued the State failed to establish he possessed the child pornography. The court denied Appellant’s motions, finding sufficient evidence was presented for the jury to determine guilt.

Analysis

On appeal, Appellant argues he and his family had joint possession of the premises where the contraband was found; thus, knowledge or ability to maintain dominion or control cannot be inferred from mere ownership of the residence or proximity to the computer. Appellant further argues the evidence concerning possession was entirely circumstantial; thus, the State was required to rebut every reasonable hypothesis of innocence.

We review the court’s decision to deny the motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Watkins v. State, 826 So.2d 471 (Fla. 1st DCA 2002). A judgment of conviction comes to an appellate court clothed “with the presumption of correctness and a defendant’s claim of insufficiency of the evidence cannot prevail where there is substantial competent evidence to support the verdict and judgment.” Terry v. State, 668 So.2d 954, 964 (Fla.1996). Our review is limited to whether the evidence the State presented in their case-in-chief was legally sufficient. Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1st DCA 2006). An appellate court may not reweigh the evidence or assess the credibility of a witness. See Tibbs v. State, 397 So.2d 1120, 1125 (Fla.1981). “The testimony of a single witness, even if uncorroborated and contradicted by other State witnesses, is sufficient to sustain a conviction.” I.R. v. State, 385 So.2d 686, 688 (Fla. 3d DCA 1980).

Generally, a trial court should not grant a motion for judgment of acquittal unless, when viewed in a light most favorable to the State, the evidence does not establish a prima facie case of guilt. Dupree v. State, 705 So.2d 90, 93 (Fla. 4th DCA 1998) (en banc). When moving for a judgment of acquittal, a defendant admits not only the facts stated in the evidence, but also every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence. Lynch v. State, 293 So.2d 44, 45 (Fla.1974). The trial court has the task of reviewing the evidence to determine whether competent, substantial evidence exists from which the jury could infer guilt to the exclusion of all other inferences. State v. Law, 559 So.2d 187, 189 (Fla.1989).

“Competent evidence is matter probative of the fact to be proved; that is, relevant evidence that does not fit within any rule of exclusion. Evidence is substantial if a reasonable mind might accept it to support a conclusion.” Brumley v. State, 500 So.2d 233, 234 (Fla. 4th DCA 1986). Hence, a judgment of acquittal should not be granted where the State has produced competent, substantial evidence to support every element of the crime. Gay v. State, 607 So.2d 454, 457 (Fla. 1st DCA 1992).

Appellant was charged with violating section 827.071, Florida Statutes (2007), which makes it a crime to knowingly possess a picture, movie, or other presentation which the person knows to include sexual conduct by a child. We agree with the trial court that the State presented sufficient circumstantial evidence to establish Appellant had constructive possession over the illicit computer images.

Constructive possession is a frequent issue in drug possession appeals; thus, we find those opinions discussing and defining constructive possession of drugs to be instructive. See, e.g., Evans v. State, 32 So.3d 188, 189 (Fla. 1st DCA 2010) (discussing constructive possession of drugs and drug paraphernalia in a home where several people had access to place where contraband was found). “Constructive possession exists where the accused does not have physical possession of the contraband but knows of its presence ... and can maintain dominion and control over it.” Id. Where contraband is found on premises in joint possession, knowledge of the contraband can be established with actual knowledge or circumstantial evidence from which the jury could infer guilt. See id. at 190; Ogle v. State, 820 So.2d 1054, 1056 (Fla. 4th DCA 2002).

Here, the State put forth circumstantial evidence from which the jury could infer that Appellant was the person who downloaded the child pornography onto the family computer. Appellant’s wife and son both testified they did not download the pornography. When the evidence is in conflict, “it is within the province of the trier of fact to assess the credibility of witnesses, and upon evaluating the testimony, rely upon the testimony found by it to be worthy of belief and reject such testimony found by it to be untrue.” I.R., 385 So.2d at 687. Further, Appellant worked offshore and admitted he was not working on the days the pornography was downloaded. Additionally, the Bay County investigator testified no illegal material was downloaded when Appellant was away working. Therefore, the evidence was sufficient for the jury to determine whether Appellant downloaded the illegal material. We reiterate that the State’s burden is to introduce evidence as to each element of the offense upon which a factfinder could find guilt beyond a reasonable doubt.

Appellant also argues the State’s evidence was entirely circumstantial; thus, the State was required to rebut every reasonable hypothesis of innocence. See Evans, 32 So.3d at 189 (quoting Beasley v. State, 774 So.2d 649, 657 (Fla.2000)). We reject this argument for two reasons.

First, the evidence in this case was not entirely circumstantial. Appellant stipulated the files contained child pornography, and both parties’ experts testified it was very unlikely someone could have searched for and downloaded the files in question without intending to download child pornography. The only element established through circumstantial evidence was possession. Second, “the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant’s theory of events.” Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1st DCA 2006) (citing Law, 559 So.2d at 189). Once the State introduces such evidence, “it becomes the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt.” Law, 559 So.2d at 189. As discussed above, sufficient circumstantial evidence regarding possession was properly presented to the jury.

AFFIRMED.

PADOVANO and LEWIS, JJ„ concur.

      . Whether constructive possession of child pornography satisfies the “knowingly possess” standard contained in section 827.071(5) has not been directly addressed in Florida jurisprudence; however, other jurisdictions have held such possession to be sufficient, even where the defendant does not actively download illegal material. See generally Ward v. State, 994 So.2d 293, 294 (Ala. 2007) (discussing federal and state opinions concerning possession of child pornography). We decline to address it here because Appellant did not raise this issue below or on appeal.


author: DAVIS, J.

text:
    BROWARD CHILDREN’S CENTER, INC., Appellant, v. PLANTATION NURSING AND REHABILITATION CENTER and Agency for Health Care Administration, Appellees.
    No. 1D11-0230.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2011.
    Kevin J. O’Donnell and John F. Gilroy, III, of Gilroy & O’Donnell, Tallahassee, for Appellant.
    Peter A. Lewis of the Law Offices of Peter A. Lewis, P.L., Tallahassee, for Ap-pellee Plantation Nursing and Rehabilitation Center; Tracy Lee Cooper, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee Agency for Health Care Administration.
   DAVIS, J.

Appellant, Broward Children’s Center, Inc., appeals a Summary Final Order denying its Petition for Leave to Amend in the rule challenge proceeding filed by Appellee, Plantation Nursing and Rehabilitation Center (“Plantation”). In denying the petition, the administrative law judge (“ALJ”) noted that this case was in an unusual, if not unique, procedural posture because the Agency for Healthcare Administration (“AHCA”) agreed with Plantation that Florida Administrative Code Rule 59A-4.1295(7)(e) was invalid. The ALJ correctly reasoned that intervention was inappropriate in this case because Appellant, who wished to defend the rule’s validity and who could not be aligned with either party, would be improperly elevated to the status of a principal party if intervention were permitted.

As we have previously explained, the rights of an intervenor are subordinate to the rights of the parties. Envtl. Confederation of Sw. Fla., Inc. v. IMC Phosphates, Inc., 857 So.2d 207, 210 (Fla. 1st DCA 2003). Intervention is a dependent remedy in the sense that an intervenor may not inject a new issue into a case, and the rights of an intervenor are conditional in that they exist only as long as the litigation continues between the parties. Id. Although, as Appellant argues, the ALJ ultimately determined the rule’s validity, AHCA, like other administrative agencies, is afforded wide discretion in interpreting a statute which it is given the power and duty to administer. Sullivan v. Fla. Dep’t of Envt'l. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). The ALJ was mindful of this discretion when ruling that the rule was invalid. Under the facts of this case, the ALJ properly denied Appellant’s petition.

Accordingly, we AFFIRM the Summary Final Order.

WOLF and MARSTILLER, JJ., concur.