author: PER CURIAM.

text:
    William VAN POYCK, Appellant, v. STATE of Florida, Appellee.
    No. SC11-724.
    Supreme Court of Florida.
    Feb. 16, 2012.
    Rehearing Denied, Clarification Granted June 14, 2012.
    Rehearing Denied Sept. 11, 2012.

      Gerald S. Bettman, Jacksonville, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Celia Terenzio, Assistant Attorney General, West Palm Beach, FL, for Appellee.
   PER CURIAM.

William Van Poyck, a prisoner under sentence of death, appeals the circuit court’s summary denial of his second successive motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.851. We have jurisdiction. See art. V, § 3(b)(1), Fla. Const. Because Van Poyck’s claim originates from information that existed as early as this Court’s issuance of its direct-appeal decision in 1990, and because the juror affidavits at issue in this case relate to matters that inhere in the verdict, we affirm the circuit court’s denial of this claim as it is both untimely and based upon inadmissible evidence.

Van Poyck was convicted of first-degree murder and sentenced to death for his role in the June 1987 killing of correctional officer Fred Griffis. On direct appeal, this Court affirmed the conviction and sentence. See Van Poyck v. State (Van Poyck I), 564 So.2d 1066 (Fla.1990). Although the Court held that “the record [did] not establish that Van Poyck was the trigger-man,” we recognized that it did “establish that he was the instigator and the primary participant in this crime.” Id. at 1070. We further concluded that because “there [was] no question that Van Poyck played the major role in this felony murder and that he knew lethal force could be used,” his death sentence was proportionate. Id. at 1070-71.

Since this Court’s affirmance of his conviction and sentence, Van Poyck has continuously raised his alleged non-trig-german status as a basis for seeking postconviction relief in both state and federal courts. The denial of each of these claims has been consistently affirmed on appeal. See Van Poyck v. State (Van Poyck II), 694 So.2d 686, 696-97 (Fla. 1997); Van Poyck v. Fla. Dep’t of Com’. (Van Poyck III), 290 F.3d 1318, 1325-26 (11th Cir.2002); Van Poyck v. State (Van Poyck IV), 908 So.2d 326, 329-30 (Fla. 2005); Van Poyck v. State (Van Poyck V), 961 So.2d 220, 224-26 (Fla.2007); see also Van Poyck v. McCollum (Van Poyck VI), 646 F.3d 865, 866-67 (11th Cir.2011) (affirming the dismissal of a 42 U.S.C. § 1983 action in which Van Poyck sought access to DNA evidence in an attempt to show that he was not the triggerman for the purpose of seeking executive clemency).

Most recently, this Court in Van Poyck V affirmed the circuit court’s summary denial of Van Poyck’s first successive motion for postconvietion relief in which he asserted a newly discovered evidence claim predicated upon an affidavit by Enrique Diaz, a prison acquaintance of Van Poyck’s codefendant Frank Valdes, stating that “between 1990 and 1997, Valdes ‘repeatedly and consistently1 said he had shot and killed Griffis.” 961 So.2d at 223. Relying on our prior precedent, we rejected Van Poyck’s argument that newly discovered evidence that Valdes was the triggerman to Griffis’s murder would probably yield a lesser sentence for Van Poyck. See id. at 227-28. We find our decision in Van Poyck V to be dispositive here.

The argument Van Poyck raises on appeal relates to his original penalty phase and is based on alleged newly discovered evidence consisting of four affidavits Van Poyck obtained on his own initiative, and absent the assistance of counsel, through the retention of a private investigator. These affidavits were sworn to by four of Van Poyck’s original jurors in 2010 and essentially state that had it been determined that Van Poyck was not the person who shot Griffis, two jurors would have recommended a life sentence and it was at least a reasonable probability that two other jurors would have done the same. Van Poyck alleges that these affidavits are proof that he would probably receive a lesser sentence on resentencing. The circuit court summarily denied relief on this claim, finding it to be both untimely and based on inadmissible evidence. We agree.

To obtain a new capital penalty-phase proceeding based on newly discovered evidence, a defendant must meet two requirements. First, the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must also appear that neither the defendant nor defense counsel could have known of such evidence by the use of diligence. Second, the newly discovered evidence must be of such a nature that it would probably yield a less severe sentence. See Davis v. State, 26 So.3d 519, 526 (citing Jones v. State (Jones II), 709 So.2d 512, 521 (Fla.1998); Jones v. State (Iones I), 591 So.2d 911, 915 (Fla.1991)). Newly discovered evidence satisfies the second prong of the Jones II test if it “weakens the case against [the defendant] so as to give rise to a reasonable doubt as to his culpability.” Jones II, 709 So.2d at 526 (quoting Jones v. State, 678 So.2d 309, 315 (Fla.1996)). “In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility.” Id. at 521.

Van Poyck’s claim is procedurally time-barred under the first prong of the Jones II test. The fact underlying this claim— that insufficient evidence existed to support á finding that Van Poyck was the triggerman — is not new at all. The issue of Van Poyck’s non-triggerman status was contested at his trial in 1988. This Court on direct appeal acknowledged that the record did “not establish that Van Poyck was the triggerman,” but nevertheless affirmed his conviction for first-degree murder and his sentence of death. Van Poyck I, 564 So.2d at 1070.

As recounted above, in every state post-conviction motion filed since his sentence became final, Van Poyck, through counsel, has raised a variant of a claim regarding his non-triggerman status. While these affidavits are technically “new,” in that they were drafted and sworn to in 2010, the information upon which they are based existed as early as September 1990, when this Court’s direct-appeal decision became final, or at least as early as March 2005, when inmate Enrique Diaz executed the affidavit that spurred the Van Poyck V litigation. Van Poyck himself concedes that the very reason counsel never secured such affidavits is because counsel was prohibited from doing so under Rule Regulating the Florida Bar 4-3.5(d)(4). Accordingly, we affirm the circuit court’s finding that this claim was procedurally barred.

This claim also fails under Jones II’s second prong. It is well established that a verdict cannot be subsequently impeached by matters that inhere in the verdict and relate to the jury’s deliberations. See Duckett v. State, 918 So.2d 224, 231 n. 7 (Fla.2005); Marshall v. State, 854 So.2d 1235, 1240 (Fla.2003); Johnson v. State, 593 So.2d 206, 210 (Fla.1992). Codifying this principle, section 90.607(2)(b), Florida Statutes (2010), provides that “[u]pon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.” As interpreted by this Court, section 90.607(2)(b) “absolutely forbids any judicial inquiry into emotions, mental process, or mistaken beliefs of jurors.” Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 99 (Fla.1991) (quoting State v. Hamilton, 574 So.2d 124, 128 (Fla.1991)). In Maler, this Court further explained that “the reasons why jurors reach[ ] a particular verdict clearly are subjective impressions or opinions that are not subject to judicial inquiry.” Id. at 100.

Reduced to their essence, the four juror affidavits in this case can be likened to instances where a juror renounces his or her decision after a verdict has been entered. Cf. Simpson v. State, 3 So.3d 1135, 1143-44 (Fla.2009) (holding that juror’s guilty verdicts were not impeachable by her subsequent repudiation of those verdicts because the basis for her repudiation related to matters that inhered in the verdicts). Each affidavit essentially contains a subjective impression relating directly to the reason why that juror reached his or her recommendation for a sentence of death. We agree with the circuit court’s conclusion that

jurors cannot testify or provide affidavits about the nature and kind of evidence that was presented and the effect this evidence had upon their decision to convict or which sentence they chose to impose. If such affidavits are submitted, they cannot be considered as evidence. There is nothing more sacrosanct in the criminal justice system than the private thoughts of jurors. Members of a jury should not be tracked down or subject to an interrogation process when there is not even a scintilla of evidence suggesting misconduct or malfeasance during deliberations.

Because the thoughts expressed by these jurors are not matters external to the verdict and relate to topics about which they are ultimately incompetent to testify, section 90.607(2)(b) renders these juror affidavits inadmissible, and they cannot be classified as newly discovered evidence.

In addition, the affidavits do not support Van Poyck’s assertion that the jury vote in the penalty phase would have changed because the statements contained therein are predicated upon facts that have never been conclusively determined to be true. Before each juror interview, Van Poyck’s investigator informed the jurors that she was there to obtain their “opinion about the suitability of [Van Poyck’s] death sentence in light of evidence that has surfaced since his trial including the fact that the Florida Supreme Court has found that Van Poyck was not the triggerman as well as the State’s concession that Van Poyck was not the triggerman.” (Emphasis added.)

Contrary to the investigator’s instruction, this Court has never found that Van Poyck was not the triggerman; we have only recognized that the evidence introduced at his trial was insufficient to establish that he was. See Van Poyck I, 564 So.2d at 1070-71. Because the juror affidavits in this case are predicated upon a misleading fact, the information they provide reveals nothing more than the subjective impressions of what four of the jurors might have done had they been presented with a fact never determined to be true. Moreover, their so-called “changed” opinions would not affect the jury’s ultimate sentencing recommendation; even considering these four affidavits in a light most favorable to Van Poyck, the jury vote would remain seven to five in favor of death.

As a final concern, we echo the circuit court’s express disapproval of the manner in which Van Poyck first secured, and defense counsel later utilized, the subject juror affidavits to set forth a factual basis for this claim. Rule 4 — 3.5(d)(4) of the Rules Regulating the Florida Bar and Florida Rule of Criminal Procedure 3.575 govern the method by which a lawyer or party may initiate contact with jurors after the jury enters a verdict to determine whether the verdict may be subject to legal challenge. See Israel v. State, 985 So.2d 510, 522 (Fla.2008); see also R. Regulating the Fla. Bar 4-3.5(d)(4) (requiring a lawyer to file with the trial court a notice of intent to interview a juror before doing so where “the lawyer has reason to believe that grounds for [a] challenge [to the verdict] may exist”); Fla. R.Crim. P. 3.575 (requiring a party to file with the trial court a motion to interview a juror before doing so where the party “has reason to believe that the verdict may be subject to legal challenge”). Neither defense counsel nor Van Poyck notified the circuit court of Van Poyck’s retention of a private investigator who interviewed the original jurors in this case.

We agree with the circuit court that although defense counsel was not representing Van Poyck at the time these affidavits were obtained and thus may not have violated rule 4-3.5(d)(4), counsel’s decision to later use these affidavits to support this claim constitutes a disregard for the spirit of the rule. As the circuit court cogently explained:

In this case, though defense counsel states [Van Poyck] was not represented at the time these affidavits were collected, counsel, as a member of The Florida Bar, still utilized affidavits in crafting the present motion. Though it might not be a technical violation, the actions of [Van Poyck’s] attorney nonetheless constitute a disregard for the spirit of the rule. A lawyer may not simply stick his head in the sand when his client presents juror affidavits collected after a guilty verdict was rendered and simply present them to the Court. Though a lawyer has a duty to zealously advocate for a client, this duty must be tempered by the lawyer’s other professional obligations. A lawyer must always keep in mind the broader duty to the criminal justice system which can never be forsaken in the interest of zealous advocacy-

(Footnote omitted.)

In sum, we conclude that Van Poyck’s motion was untimely and that his reliance on these affidavits represents an improper attempt to use inadmissible evidence to reargue the merits of this Court’s legal determination in Van Poyck V that his non-triggerman status probably would not yield a lesser sentence at a resentencing. Accordingly, we affirm the circuit court’s order summarily denying relief.

It is so ordered.

CANADY, C.J., and PARIENTE, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

LEWIS, J., concurs in result.

      . Specifically, one juror declared that “[i]f [he] had known for a fact that William Van Poyck was not the triggerman, [he] would have recommended to the trial judge that Van Poyck be sentenced to life imprisonment, without the possibility of parole, instead of the death penalty.” Another juror stated that had she "known that Van Poyck did not kill Fred Griffis, there [was] a reasonable probability that [she] would have recommended to the trial judge that Van Poyck-be sentenced to life imprisonment rather than a recommendation for death.” A third juror explained that had she "known for certain that Van Poyck was not the individual who killed Fred Griffis, there [was] at least a reasonable probability that [she] would not have recommended a death sentence for Van Poyck.” The final juror confirmed that she was "not an advocate of the death penalty and would recommend life [without] parole if given the option.”

      . We note that the United States Court of Appeals for the Eleventh Circuit recently observed that the "identity of the triggerman was not established at [Van Poyck's] trial or in later proceedings.” Van Poyck VI, 646 F.3d at 867 n. 2.

      . Following Van Poyck’s penalty phase, the jury recommended a sentence of death by a vote of eleven to one. The four juror affidavits at issue here are in addition to the one juror who originally voted for a sentence of life imprisonment.


source: Caselaw Access Project

author: SAWAYA, J.

license: Public Domain

text:
    PUTNAM COUNTY, Appellant, v. John EDMUNDS and Mary Edmunds, Appellee.
    No. 5D11-1812.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2011.
    Rehearing Denied July 26, 2012.
    Meagan L. Logan, and Stephen B. Gallagher, of Marks Gray/ P.A., Jacksonville, for Appellant.
    Borden R. Hallowes, of Borden R. Hal-lowes P.A., St. Augustine, for Appellee.
   SAWAYA, J.

Putnam County, the successful defendant in a negligent misrepresentation action, appeals the final order denying its motion to tax fees and costs against John and. Mary Edmunds, the plaintiffs. We affirm that part of the order denying attorney’s fees under section 768.79(1), Florida Statutes (2011), without further discussion. We reverse the part of the order denying costs under section 57.041(1), Florida Statutes (2011), and remand this case to the trial court to consider the costs claimed by Putnam County.

AFFIRMED in part; REVERSED in part; REMANDED.

LAWSON and EVANDER, JJ., concur.


text:
    Francisco VEGA, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2316.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Edward J. Weiss, 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.

Francisco Vega appeals from his conviction on a single charge of delivery of cocaine, challenging the trial court’s decision not to instruct the jury on the defense of entrapment and also challenging his conviction based upon the constitutional analysis in Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla. 2011).

We affirm as to the entrapment issue without elaboration. See Davis v. State, 937 So.2d 300, 303 (Fla. 4th DCA 2006) (“[W]hen the evidence is not conflicting and the factual circumstances not in dispute, the determination of whether an accused has been entrapped is an issue that is determined as a matter of law by the trial judge.”). We reject Appellant’s constitutional argument for the reasons explained in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We recognize that this latter issue is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). Accordingly, we will withhold our mandate pending a final disposition of Adkins.

AFFIRMED.

SAWAYA, LAWSON and EVANDER, JJ., concur.


text:
    Willie James MILLING, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2831.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Rehearing Denied May 22, 2012.
    Willie James Milling, DeFuniak Springs, pro se.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

LAWSON, EVANDER and JACOBUS, JJ., concur.


text:
    Wallace JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2903.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be with-héld pending final disposition of Adkins.


text:
    Corey Richard LYNCH, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3618.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

PALMER, MONACO and LAWSON, JJ., concur.


text:
    Ricco A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3619.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

PALMER, MONACO and LAWSON, JJ., concur.


author: GRIFFIN, J.

text:
    Marquis STOKES, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4338.
    District Court of Appeal of Florida, Fifth District.
    April 20, 2012.
    Marquis Stokes, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

Appellant, Marquis Stokes [“Stokes”], appeals the summary denial of his rule 3.800(a) motion. The trial court denied the motion because the claims were not cognizable in a rule 3.800(a) motion. This decision was correct for all claims except one.

Stokes asserts that the written sentence is in conflict with the oral pronouncement of his sentence. According to Stokes, the trial court orally pronounced a sentence of eight years of prison, followed by five years of probation, with early termination of probation after two years and no designation as an habitual felony offender [“HFO”]. Eight days later, however, the trial court amended Stokes’ sentence to designate him as a HFO and provided that early termination was to be permitted after two and one-half years probation.

The State acknowledges in its response that this claim is cognizable in a rule 3.800(a) motion, but notes that Stokes has not attached essential portions of the record, including the sentencing hearing transcript. We remand for the trial court to consider this claim on the merits. If the requisite documents, such as the sentencing hearing transcript, are not in the record, Stokes’ motion should be denied without prejudice to allow Stokes to file a legally sufficient amended motion. See Beard v. State, 27 So.3d 186, 188 (Fla. 5th DCA 2010).

AFFIRMED in part; REVERSED in part; and REMANDED.

ORFINGER, C.J., and TORPY, J„ concur.


author: MAY, C.J.

text:
    CONTINENTAL FLORIDA MATERIALS Inc., a Florida corporation, and Victor Dominguez, Appellants, v. Harvey KUSHERMAN, Appellee.
    No. 4D10-4116.
    District Court of Appeal of Florida, Fourth District.
    April 25, 2012.
    Rehearing Denied July 27, 2012.

      Richard A. Sherman and James W. Sherman of Richard A. Sherman, P.A., Fort Lauderdale, and Joseph Glick of Prince and Glick, P.A., Fort Lauderdale, for appellants.
    Jeremy E. Slusher and Brandon For-gione of Broad and Cassel, West Palm Beach and Mark D. Gilwit of Gilwit & Associates, Boca Raton, for appellee.
   MAY, C.J.

A construction site accident, contractual provisions, and Fabre are the ingredients of this appeal. The defendants argue, among other issues, the trial court erred in entering a summary judgment in favor of the plaintiff on liability. We agree and reverse.

On the day of the accident, the defendant driver was delivering cement to the construction site. Upon entering the site and approaching the dumping area, the driver passed the plaintiff, a flagman working for the general contractor through a temporary work agency. The driver backed the cement truck up to the dumping area and dumped the concrete. A lunch truck then entered the site and parked, impeding the driver’s exit.

The construction foreman, an employee of the general contractor, instructed the driver to move his truck. Although the foreman would instruct trucks to exit the dumping area, he was not responsible for directing the trucks. The driver pulled his truck out from the dumping area and away from the crowd without incident.

The foreman waved the driver to back out. The driver checked his mirrors and proceeded to back up while the foreman remained in front of the truck. The driver was unable to see behind his truck using the video monitor. A witness to the accident testified that the driver backed up at a regular speed. The witness confirmed the foreman continued to wave for the driver to back up.

Testimony also revealed that it was industry standard for the general contractor to direct concrete trucks in and out of the construction site. It was also standard for the general contractor to provide traffic control on a public street. The subcontractor’s drivers were instructed to follow the directions of the general contractor.

The plaintiff, who was in charge of directing traffic at the time of the accident, was the only flagman on the street. It was his job to direct pedestrian traffic and trucks entering and exiting the job site, but at the time of the accident, he was turned away from the truck. When the plaintiff turned around, the truck was three to four feet away. He did not hear the backup indicator. He only heard the truck backing up quickly, and someone say “you’re through, you can leave.” As the driver backed up, the truck struck the plaintiff, spun him around, and ran over his legs. The driver exited the truck and observed the plaintiff pinned under the truck’s two rear driver’s side wheels.

The plaintiff filed a complaint against the subcontractor and its driver, alleging that they negligently caused the accident. The subcontractor and driver ultimately served an amended answer and affirmative defenses. The plaintiff moved to strike two affirmative defenses, which asserted the plaintiffs comparative negligence and listed the temporary work agency, the general contractor, and the foreman as non-party defendants under Fabre.

While the motion to strike was pending, the plaintiff filed a motion for summary judgment and/or to preclude in limine, which argued the subcontractor and driver could not request an apportionment of fault because the subcontractor had assumed responsibility for worker safety under its agreement with the general contractor, was vicariously liable, and had a non-delegable duty under the dangerous instrumentality doctrine. Defense counsel argued the plaintiff and non-party defendants were negligent and the jury .should be allowed to apportion fault because genuine issues of fact remained.

The trial court entered an order, concluding the defendants were not entitled to have the jury apportion fault because: (1) the contract between the general contractor and subcontractor placed the responsibility for safety on the subcontractor; and (2) the subcontractor had a non-delegable duty to operate the truck with due regard for the safety of other workers in the area. The court granted the plaintiffs motion to strike and entered a summary judgment in favor of the plaintiff on liability.

The trial on damages resulted in a verdict of $6,590,891 in favor of the plaintiff. The defendants filed an amended motion for new trial and/or remittitur. The trial court denied the motion. The defendants filed an amended notice of appeal, seeking review of the final judgment and the order denying the amended motion for new trial.

On appeal, the driver and subcontractor argue the trial court erred in striking their comparative negligence and Fabre defenses and entering summary judgment on liability. The plaintiff responds that the subcontractor and driver waived this argument by admitting liability during .the trial. Alternatively, the plaintiff argues that two provisions in the agreement between the subcontractor and general contractor, coupled with the dangerous instrumentality doctrine, prohibit an apportionment of fault among the parties and non-parties. We find, without further comment, the issue was preserved. We further hold that neither the contractual provisions nor existing case law prevented the jury from apportioning fault.

Our review of this summary judgment is de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Section 768.81, Florida Statutes (2007), provides for comparative fault and apportionment of damages in negligence cases:

(2) EFFECT OF CONTRIBUTORY FAULT. — In an action to which this section applies, any contributory fault chargeable to the claimant diminishes proportionately the amount awarded as economic and noneconomic damages for an injury attributable to the claimant’s contributory fault, but does not bar recovery.
(3) APPORTIONMENT OF DAMAGES. — In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and. not on the basis of the doctrine of joint and several liability.
(a) In order to allocate any or all fault to a nonparty, a defendant must affirmatively plead the fault of a nonparty and, absent a showing of good cause, identify the nonparty, if known, or describe the nonparty as specifically .as practicable, either by motion or in the initial responsive pleading when defenses are first presented....
(b) In order to allocate any or all fault to a nonparty and include the named or unnamed nonparty on the verdict form for purposes of apportioning damages, a defendant must prove at trial, by a preponderance of the evidence, the fault of the nonparty in causing the plaintiffs injuries.

§ 768.81(2)-(3), Fla. Stat. (2007). In Fa-bre, our supreme court held that the statute is unambiguous:

The “fault” which gives rise to the accident is the “whole” from which the fact-finder determines the party-defendant’s percentage of liability. Clearly, the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants.

623 So.2d at 1185 (emphasis supplied). Thus, the subcontractor and driver were entitled to an apportionment of fault regardless of who is ultimately liable for damages. The plaintiff argues that two contractual provisions in the agreement between the subcontractor and the general contractor somehow disentitled the defendant to such an apportionment. We think not.

The two relevant provisions in the agreement concern accident prevention and indemnity, and provide:

ARTICLE XXVI: ACCIDENT PREVENTION
26.1 Subcontractor agrees that the prevention of accidents and injuries to workmen engaged in the Work under this Agreement is the responsibility of Subcontractor. Subcontractor agrees to comply with all laws, regulations and codes concerning safety as shall be applicable to the Work and to the safety standards established during the progress of the Work by Contractor. When so ordered, Subcontractor agrees to stop any part of the Work, which Contractor deems unsafe until corrective measures satisfactory to Contractor have been taken, and further agrees to make no claim for damages growing out of such stoppages. Should Subcontractor neglect to adopt such corrective measures, Contractor may perform them and deduct the cost from payments due or to become due Subcontractor. Failure on the part of Contractor to stop unsafe practices shall, in no way, relieve Subcontractor of its responsibilities.
ARTICLE XXXII: INDEMNIFICATION
32.1 Subcontractor agrees to indemnify, defend and hold harmless Contractor and Owner and their respective officers, representatives and employees, from any claim, liability, damage, loss, judgment or cost, ... arising out of or in any manner pertaining to this Agreement or the Work hereunder caused) in-whole or in part, by an act, omission or default of Subcontractor or any of Subcontractors’ sub-Subcontractors or suppliers of any tier or their respective employees or representatives, whether- or not caused in part by any act, omission or default of Contractor. However, such indemnification shall not include claims of, or damages resulting from, gross negligence, or willful, wanton, or intentional misconduct of the Contractor, or its officers, directors, agents, or employees, or for statutory violation or punitive damages except and to the extent the statutory violation or punitive damages are caused by or result from the acts or omissions of Subcontractor or any of its sub-Subcontractors, materialmen, or agents of any tier or their respective employees. Liability under this subsection shall not exceed $3,000,000.00, the parties acknowledging that such amount bears a reasonable commercial relationship to this Agreement.

(Emphasis added).

“In construing a contract, [we] should consider its plain language and take care not to give the contract any meaning beyond that expressed. When the language is clear and unambiguous, it must be construed to mean ‘just what the language therein implies and nothing more.’ ” Walker v. State Farm Fire & Cas. Co., 758 So.2d 1161, 1162 (Fla. 4th DCA 2000) (quoting Walgreen Co. v. Habitat Dev. Corp., 655 So.2d 164, 165 (Fla. 3d DCA 1995)) (internal citation omitted). And “‘[we are] not empowered to rewrite a clear and unambiguous provision, nor should [we] attempt to make an otherwise valid contract more reasonable for one of the parties.’ ” Rodriguez v. Builders Firstsource-Florida, LLC, 26 So.3d 679, 682 (Fla. 4th DCA 2010) (quoting N. Am. Van Lines v. Collyer, 616 So.2d 177, 179 (Fla. 5th DCA 1993)).

First, it should be noted that neither the plaintiff nor the driver was a party to the agreement, so its provisions have no affect on the apportionment of fault between those individuals. Second, as to the subcontractor, the first provision merely requires the subcontractor to prevent accidents and injuries “to workmen engaged in the Work under this Agreement,” and to adhere to safety regulations and standards.

The remaining sentences of the provision make clear that the general contractor has the ultimate supervisory responsibility for ensuring safety and regulatory compliance. This supervision extends to the extent that the general contractor can order the work stopped if it is deemed unsafe, and the general contractor can undertake the work itself if needed to render the workplace safe. The provision does NOT make the subcontractor solely responsible for all safety on the worksite, thereby precluding the apportionment of fault for an accident.

The general indemnity provision provides for the subcontractor to indemnify the general contractor and owner from loss resulting from the subcontractor’s acts or omissions. It does NOT provide for the subcontractor to indemnify the general contractor for loss resulting from the general contractor’s own acts or omissions. Indeed, Florida law “view[s] with disfavor contracts that attempt to indemnify a party against its own negligence.” Zeiger Crane Rentals, Inc. v. Double A Indus., Inc., 16 So.3d 907, 914 (Fla. 4th DCA 2009) (citing Charles Poe Masonry Inc. v. Spring Lock Scaffolding Rental Equip. Co., 374 So.2d 487, 489 (Fla.1979)). We also note the trial court did not address this provision in rendering the summary judgment.

Even so, when these two passages are read together, their language reveals the parties’ intent to require the subcontractor to work safely in accordance with safety regulations and standards, leaving the supervision of the safe workplace to the general contractor. Should the subcontractor cause a loss due to its own negligence, then it agreed to indemnify the general contractor to the extent of three million dollars.

Lastly, the subcontractor and driver argue the trial court erroneously relied on the dangerous instrumentality and vicarious liability doctrines in granting summary judgment. The plaintiff responds the trial court properly struck the defendants’ affirmative defense based on those doctrines. Once again, we agree with the subcontractor and driver.

The dangerous instrumentality doctrine renders an owner strictly liable for injuries caused by someone to whom the owner entrusts the vehicle. Salsbury v. Kapka, 41 So.3d 1103, 1104 (Fla. 4th DCA 2010). Here, the subcontractor entrusted the vehicle to the driver, and therefore has a non-delegable duty to the plaintiff as it relates to the driver. However, that non-delegable duty does not disentitle the subcontractor to an apportionment of fault among other parties and non-parties to whom the defendant did not entrust the vehicle, such as: the general contractor, its foreman, the plaintiff, and the temporary work agency.

The plaintiff correctly argues that apportionment of fault under Fabre does not apply when liability is vicarious in nature. In support, the plaintiff cites Grobman v. Posey, 863 So.2d 1230 (Fla. 4th DCA 2003); Suarez v. Gonzalez, 820 So.2d 342 (Fla. 4th DCA 2002); and Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996). The problem with the plaintiffs argument is not in its premise, but in its application. Neither the subcontractor nor the driver is vicariously liable for the general contractor, the foreman, the plaintiff, or the temporary work agency. Thus, Grobman, Suarez, and Nash do not support the trial court’s summary judgment.

A distinction must be drawn between apportionment of fault and ultimate liability. The former allows the finder of fact to determine to what extent, if any, each party or non-party contributed to the loss or injury. The latter determines who will actually pay for that loss or injury. The combination of both insures responsibility for one’s own negligence, and ultimately who will pay — and to what extent of — the total loss.

By striking the affirmative defenses and entering a summary judgment on liability, the trial court deprived the subcontractor and driver from having a jury apportion fault. For this reason, we reverse and remand the case for a trial on liability and damages. Cf. City of Winter Haven v. Allen, 541 So.2d 128, 138 (Fla. 2d DCA 1989) (“We have considered the propriety of ... a limited retrial and determine that all issues in this case are too interwoven to make such a limited retrial appropriate.”).

Reversed and Remanded for a New Trial.

DAMOORGIAN and GERBER, JJ., concur.

      . Fabre v. Marin, 623 So.2d 1182 (Fla. 1993), receded from on other grounds, Wells v. Tallahassee Mem'l Reg'l Med. Ctr., Inc., 659 So.2d 249, 254 (Fla. 1995).

      . The bold font and strikethrough appeared in the actual agreement.

      . We have reviewed Barrientos v. Hyre, 805 So.2d 981 (Fla. 2d DCA 2001); Nash v. Wells Fargo Guard Seivices, Inc., 678 So.2d 1262 (Fla.1996); and Griefer v. DiPietro, 625 So.2d 1226 (Fla. 4th DCA 1993), cited by the plaintiff, before determining that a trial on both liability and damages is warranted in this case.


author: STEVENSON, J.

text:
    CITY OF WEST PALM BEACH, Appellant, v. William McCRAY, Appellee.
    No. 4D10-3393.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Rehearing Denied July 27, 2012.

      Jacob A. Rose of The Rose Law Firm, LLC, and Claudia M. McKenna, City Attorney, and Zoe Panarites, Kimberly Roth-enburg and Nicholas I. Igwe, Assistant City Attorneys, West Palm Beach, for appellant.
    Isidro M. Garcia of the Garcia' Law Firm, P.A., West Palm Beach, for appellee.
   STEVENSON, J.

The City of West Palm Beach appeals a final judgment in the amount of $230,000 after a jury found' that discrimination and/or retaliation occurred within the West Palm Beach Police Department (the “Department”) against the appellee, William H. McCray. By way of cross-appeal, McCray challenges the trial court’s order granting the City’s motion for a new trial on damages only. The City contends: (1) that McCray failed to present a prima facie case of disparate treatment, discrimination or retaliation; (2) that improper verdict forms were used; (3) that irrelevant evidence was admitted; and (4) that the jury verdict is excessive and contrary to the weight of the evidence, requiring a new trial on liability as well. McCray argues that the amount awarded by the jury is supported by evidence in the record. McCray’s claim is based on the purported inclusion of his claim for termination at trial. We hold that the evidence was sufficient to support the jury’s finding of discrimination and/or retaliation and that the trial court was correct in ordering a new trial on damages because the termination claim was not an issue for the jury. The additional claims raised by the parties are without merit.

McCray, an African American, filed a complaint alleging disparate treatment, discrimination and retaliation against the City. McCray alleged discrimination under the Florida Civil Rights Act based on the Department disciplining him more harshly than white employees and for denying him promotions, assignments and transfer opportunities that were provided to white employees. McCray also alleged retaliation under the Florida Civil Rights Act for the Department failing to promote him, failing to give him desirable assignments and subjecting him to disparate discipline, working conditions and biased internal affairs investigations, which ultimately resulted in his termination. McCray alleged that these acts occurred after he filed two charges of discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Florida Commission on Human Relations (“FCHR”).

The City and McCray each filed motions in limine. As a result, the trial judge who was assigned the case at that time excluded from trial the issue of McCray’s termination, reasoning that it had not been included in the charges of discrimination, which was a prerequisite to filing suit. Subsequently, the parties entered into a joint pretrial stipulation. The parties agreed that McCray was terminated from his job on May 9, 2001, after he filed two charges of discrimination with the EEOC and FCHR on April 26, 1999, and July 7, 1999. McCray’s issues for the jury were, in relevant part:

• whether the Department discriminated against McCray because of his race;
• whether the Department treated non-African American employees more favorably than McCray for “substantially similar conduct and circumstances”; and
• whether the Department retaliated against McCray for making discrimination complaints.

The City’s issues for the jury included whether McCray presented a prima facie case of discrimination or retaliation based on the following disciplinary actions:

a. One-day suspension (8 hours) on August 25, 1998, for missing court for the third time in twelve months;
b. Suspension for five days (40 hours) on March 8, 1999, for. sleeping on duty and failing to maintain control of a prisoner;
c. One-day suspension (8 hours) on May 19, 1999, for improper investigation and inaccurate/false information in police reports;
d. Four-day suspension (32 hours) o[n] December 18, 1999, for failure to appear for depositions and being late for court resulting in a misdemeanor plea in a felony case; [and]
e. Two-day suspension (16 hours) for failure to properly secure a prisoner while in processing area at headquarters on January 14, 2000.

Prior to the beginning of trial, the new trial judge who had been assigned the case indicated that the issues would be limited by the pretrial stipulation, as well as by the ruling made by the initial trial judge. The trial court reiterated that whether McCray was wrongfully terminated was not an issue for the jury.

At trial, McCray testified that, in 1997, he began generating letters about discrimination within the Department. McCray sent letters up the entire chain of command, from Sergeant to Chief, as well as to several City Hall officials and the May- or. He spoke personally with his supervisors and, in 2001, spoke with the media after his letter-writing efforts had been ignored. McCray testified that he was accused of lying during disciplinary investigations and punished harshly, whereas other white officers, actually caught lying or admitted to lying, received very light punishments. McCray felt that the five suspensions at issue were specific examples of discrimination. For example, regarding the suspension for not maintaining control of a prisoner on January 14, 2000, McCray indicated that it occurred because he stepped away from the prisoner for thirty seconds to use the bathroom and left the prisoner in a locked facility. McCray knew that other officers had done the same thing without it being “a problem.” McCray also felt that he was discriminated against during the investigation into the incident of him falling asleep while watching a prisoner on March 8, 1999, because two white officers lied under oath about the events. According to McCray, though a video recording showed that the officers had lied, the officers who made the false statements were not punished. McCray further testified about several examples of officers violating Department policy and receiving no, or very lenient, punishments. McCray stated that, during the times that he was suspended, he lost $3,088.80 in wages.

McCray had been reprimanded a total of fifteen times during his career with the Department, beginning in 1993.. During the instances of what McCray believed to be discrimination, the Chief of Police ultimately determined whether an officer should be suspended. McCray believed that the Chief knew about “pretty much everything” that happened in the Department.

Another African American officer, Officer Bryant, testified that he experienced discrimination during his employment with the Department, beginning in 1989. Officer Bryant was terminated in 2000, after he joined McCray and four other African American officers in filing the 1999 charges of discrimination. He testified to several instances of perceived discrimination where he violated a Department rule and received a harsher punishment than white officers who committed the same offense. A third African American officer, Sergeant Key, testified to the use of racial slurs by employees within the Department as well as his attempt to have .this conduct investigated.

McCray then offered the testimony of four non-African American officers who he believed had been treated more favorably than he. The first officer, Officer Myers, testified that he was disciplined for missing multiple court dates or depositions. Officer Myers missed traffic court in 2000, and in 2001 was given a letter of reprimand after he missed court a second time. In the same year, he was given an eight-hour suspension because he missed a deposition and it occurred within the same twelve-month period as him missing court. When he missed a deposition on a fourth occasion, in 2003, he received only a written reprimand because it was the first time in a twelve-month time span. Finally, he was- also disciplined in 2002 with a written reprimand for not reporting his use of force on an arrestee.

The second officer, Lieutenant Yates, testified that he was recommended for termination in about 1999, 2000 or 2001, due to multiple disciplinary problems. Officer Yates was accused of being “less than truthful” during an internal affairs investigation. He was terminated because of this, but was then reinstated. In 1999, he was accused of improper supervision; falsification of documents; violation of Department rules, regulations, policies and procedures; and witness intimidation. The allegations were substantiated. ' It was recommended by internal affairs that he be demoted, but he was given a letter of guidance, a thirty-day suspension without pay and a four-year period of probation instead. He also signed a last chance agreement that provided that if he engaged in similar conduct within four years of the agreement, he would be terminated. The agreement was signed in 2000. In 2002, a citizen complaint was filed against Lieutenant Yates alleging witness tampering. Internal affairs conducted an investigation and made two recommendations-one that he receive a twenty-day suspension and one that he be fired. Though the complaint was filed in 2002, a decision was not made until 2004. The report recommending termination indicated that Lieutenant Yates may have committed two felonies. Lieutenant Yates was ultimately given a twenty-day suspension. During his employment with the Department since 1980, Lieutenant Yates had been disciplined for:

conduct unbecoming an officer, falsifying a police record by failing to complete an accident investigation, negligent operation of a police vehicle resulting in an accident, disobeying an order from a supervisor, missed overtime assignment, carelessness with use of city equipment, violation of administrative procedure concerning extra duty details, failing to properly supervise a staff services section, making misleading and untruthful statements, conduct unbecoming of a City employee, excessive force during an arrest, unprofessional conduct towards a member of the public, falsifying records, professional complaint, improper supervision, leaving an uncivilized voicemail to a fellow officer, lobbying for a candidate that was disqualified by human resources, personal complaint use of force, improper supervision, improper professional misconduct, insubordination, AWOL, violation of department general conduct on duty, [and] improper professional conduct.

The third officer, Officer Shaw, testified that he was disciplined in 2001 for missing one deposition. He received a letter of reprimand. Officer Shaw was also disciplined for missing court in 1999 with a letter of reprimand. On no other occasion had he missed court or deposition. However, he had received a written reprimand for failing to seatbelt a prisoner on one occasion. Further, in 2000, he was “written up” for allowing another officer to complete an improper investigation.

The final officer, Captain Olsen, testified that, in 2000, a prisoner escaped from her vehicle. This was the only time that a prisoner escaped from her custody and she was not disciplined for it. She had not violated any rules regarding securing a prisoner when the prisoner escaped.

The City then presented testimony from Sheriff Bradshaw, who acted as Chief of Police from 1996 to 2004. Sheriff Bradshaw explained that, when someone made a complaint about an officer violating a rule, an investigation was conducted resulting in a final determination on whether the allegations were substantiated. If he approved that determination, the case was sent back to “supervision” for a recommendation as to discipline. A system of “progressive discipline” was typically used. Sheriff Bradshaw testified that the manner in which McCray had been disciplined on the five relevant occasions was consistent with Department policy. Further, while he would have received copies of the charges of discrimination filed by McCray, and indicated that he eventually became aware of McCray’s allegations, he could not recall the specific date on which he gained this knowledge.

The City moved for a directed verdict as to all claims. The trial court found that McCray made out a prima facie case for both discrimination and retaliation. The jury determined that the City had discriminated against McCray because of his race and/or retaliated against him for his complaints of racial discrimination. The jury awarded $230,000 in net lost wages and $0 for emotional pain and mental anguish.

Subsequent to entry of the verdict, the City filed a motion to set aside verdict and enter judgment in accordance with its motion for directed verdict or, in the alternative, motion for new trial. The trial court found that the jury’s verdict as to liability should not be disturbed. However, the trial court ordered a new trial on damages, reasoning that the evidence at trial showed that McCray’s lost wages for the time that he was suspended was approximately $3,000. The trial court noted that the jury must have been confused and indicated that, as per the initial trial judge’s order, the termination claim was not a proper basis for awarding damages. The instant appeal was then filed where, inter alia, the City has challenged the finding of liability and McCray has challenged the order granting a new trial on damages. The trial court’s decision on a motion for a directed verdict is reviewed de novo. See City of Hollywood v. Hogan, 986 So.2d 634, 640M1 (Fla. 4th DCA 2008). “Only where no proper view of the evidence could sustain a verdict in favor of the nonmoving party may a trial court enter a directed verdict.” Greenberg v. Schindler Elevator Corp., 47 So.3d 901, 903 (Fla. 3d DCA 2010). A trial court’s ruling on a motion for a new trial is reviewed for an abuse of discretion. See Philippon v. Shreffler, 33 So.3d 704, 709 (Fla. 4th DCA), review denied, 47 So.3d 1290 (Fla.2010).

A prima facie case of employment discrimination may be established by either: direct evidence of discriminatory intent; statistical analysis showing a pattern of discrimination; or circumstantial evidence meeting the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Washington v. Sch. Bd. of Hillsborough Cnty., 731 F.Supp.2d 1309, 1317 (M.D.Fla.2010). McCray used the McDonnell Douglas framework in proving his case because only circumstantial evidence was presented. When a plaintiff seeks to prove discrimination through a disparate treatment theory, the McDonnell Douglas test requires proof that: (1) the plaintiff belongs to a racial minority; (2) the plaintiff was subjected to adverse employment action; (3) similarly-situated employees, outside of the plaintiffs racial minority, were treated more favorably than the plaintiff; and (4) the plaintiff was qualified to do the job. See U.S. E.E.O.C. v. Mallinckrodt, Inc., 590 F.Supp.2d 1371, 1376 (M.D.Fla.2008). The City disputes only prong three. When a claim is based on disparate treatment, establishing a pri-ma facie case is sufficient evidence of pretext so that no further evidence is necessary. See Lobeck v. City of Riviera Beach, 976 F.Supp. 1460, 1467 n. 3 (S.D.Fla.1997) (stating that “[h]aving established a prima face case of disparate discipline, plaintiff need not demonstrate further evidence of pretext” because disparate discipline is sufficient to establish pretext). Further, “[e]mployees are similarly situated when they are ‘involved in or accused of the same or similar conduct.’” Fla. Dep’t of Children & Families v. Shapiro, 68 So.3d 298, 305 (Fla. 4th DCA 2011) (quoting Holifield v. Reno, 115 F.3d 1555, 1562 (11th Cir.1997)). The most important factors are the nature of the offenses and punishments imposed. See id. However, “ ‘[t]he quantity and quality of the comparator’s misconduct [must] be nearly identical.’ ” Id. (quoting Maniccia v. Brown, 171 F.3d 1364, 1368 (11th Cir.1999)).

McCray’s evidence was sufficient to establish a prima facie case of discrimination/disparate treatment and retaliation. “[T]he elements of a prima facie case are flexible and should be tailored, on a case-by-case basis, to differing factual circumstances.” Fitzpatrick v. City of Atlanta, 2 F.3d 1112, 1123 (11th Cir.1993) (citation omitted). McCray presented evidence of disparate treatment through the comparator officers, most notably, through Lieutenant Yates whose disciplinary' history was far more severe than McCray’s. In addition to this, McCray offered other examples of discrimination that had been suffered by himself and fellow officers in the Department. Because each of the instances testified to by McCray and the other witnesses occurred after McCray-made his initial complaints of discrimination to superior officers, the evidence was also sufficient to send the retaliation claim to the jury. See Shapiro, 68 So.3d at SOS-OS (noting that a plaintiff establishes a prima facie case of retaliation with evidence that: “(1) he engaged in protected activity; (2) he suffered an adverse employment action; and (3) there is a causal relation between the two events”).

Regarding McCray’s cross-appeal, McCray argues that the damages award was proper because the termination issue was subsequently admitted, after it had been erroneously excluded by the initial trial judge. However, the record indicates that, while the fact that McCray was terminated was presented to the jury, the termination issue was not before the jury. The trial court clearly instructed the attorneys and the jury that the only issues to be determined were based on the five instances of discipline. Further, the initial ruling on the motion in limine to exclude the termination issue functioned as a dismissal as to the termination count based on McCray’s failure to exhaust his administrative remedies. See Sunbeam Television Corp. v. Mitzel, 83 So.3d 865, 873-74 (Fla. 3d DCA 2012) (“[A]n individual claiming discrimination in the workplace must first file an administrative complaint with the FCHR ... and exhaust the administrative remedies ... before a civil action asserting discrimination may be brought.”). The City’s argument that the alleged wrongful termination could not be addressed because McCray had not complied with the statutory prerequisite was raised by a written motion served on McCray and was heard at a separate hearing. Cf. Rice v. Kelly, 483 So.2d 559, 560 (Fla. 4th DCA 1986) (cautioning “trial courts not to allow ‘motions in limine’ to be used as unwritten and unnoticed motions for partial summary judgment or motions to dismiss” but concluding that such error may be harmless). The fact that McCray had not complied with the statutory prerequisites was clear from the record. See Brewer v. Clerk of Circuit Court, Gadsden Cnty., 720 So.2d 602, 604 (Fla. 1st DCA 1998) (affirming dismissal of employment discrimination and retaliation complaint for failing to comply with statutory prerequisites where the issue of appellant’s noncompliance was tried by consent and determined by the trial court). As such, any error in the trial court’s limiting McCray’s damages claim via the motion in limine was harmless.

Finally, the termination issue was properly excluded, pursuant to National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 113, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (hereinafter “National R.R.”). Section 760.11 of the Florida Civil Rights Act (“FCRA”) provides that: “[a]ny person aggrieved by a violation of [the FCRA] may file a complaint with the commission within 365 days of the alleged violation....” § 760.11(1), Fla. Stat. Thus, McCray’s time to file a charge based on his termination expired a year after it occurred. Under the federal counterpart of the FCRA, “discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges.” National R.R., 536 U.S. at 113, 122 S.Ct. 2061. Rather, “[e]aeh discrete discriminatory act starts a new clock for filing charges alleging that act.” Id. McCray argues that he was not required to file a new charge of discrimination because the termination was not a discrete discriminatory act, but, rather, was part of a continuing pattern of discrimination. We disagree.

The Supreme Court in National R.R. reasoned that claims based on discrete discriminatory acts must be filed within the statutory time period because the date on which they occur is easily identified. See id. at 114, 122 S.Ct. 2061. On the other hand, ongoing acts of discrimination, such as the hostile work environment claim at issue in National R.R., involve repeated conduct. Thus, the Supreme Court reasoned that “[i]t does not matter, for purposes of the statute, that some of the component acts of the hostile work environment fall outside the statutory time period[,] [provided that an act contributing to the claim occurs within the filing period....” Id. at 117, 122 S.Ct. 2061. National R.R. involved discriminatory conduct that occurred prior to the statutory time period, whereas the instant case involves a termination which occurred subsequent to a timely charge of discrimination. Admittedly, the proper interpretation of National R.R. when applied to acts occurring subsequent to a timely charge of discrimination is unclear. Compare Martinez v. Potter, 347 F.3d 1208, 1210-11 (10th Cir.2003) (viewing National R.R. as requiring a claimant to timely file a new charge of discrimination for discrete incidents of discrimination and retaliation occurring after the time the original charge is filed) with Wedow v. City of Kansas City, Mo., 442 F.3d 661, 672-73 (8th Cir. 2006) (noting that National R.R. did not foreclose the possibility that “reasonably related subsequent acts may be considered exhausted,” and thus actionable, where the subsequent acts are “ ‘like or reasonably related to the administrative charges that were timely brought’ ”) (citation omitted). However, in accordance with the reasoning of National R.R., McCray’s termination is best viewed as an act that reset the time period in which to file a new charge of discrimination. See also Tademe v. Saint Cloud State Univ., 328 F.3d 982, 988 (8th Cir.2003) (noting that National R.R. makes clear that termination is generally considered a separate violation). The termination was a separate and different act from the allegations contained in McCray’s charges of discrimination and the date on which the termination occurred is easily identified. See Holder v. Nicholson, 287 Fed.Appx. 784, 793 (11th Cir.2008) (holding that plaintiffs discrimination claim based on a wrongful termination was properly excluded as the termination was a “separate act” and plaintiff treated each wrong as a “separate action” from her other claims). Because McCray failed to file a new charge of discrimination including the termination, he was properly prevented from presenting it during the instant proceedings. Further, since the termination was not an issue for the. jury, the jury was limited to awarding damages based only on the five suspensions properly at issue. There is no evidence in the record supporting a damages award of $230,000. Thus, the trial court’s order of a new trial was appropriate.

Based on the above reasoning, the trial court’s order is affirmed in all respects.

Affirmed.

WARNER and CONNER, JJ., concur.


text:
    LaTroy BOUKNIGHT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4730.
    District Court of Appeal of Florida, First District.
    May 24, 2012.

      LaTroy Bouknight, pro se.
    Pamela Jo Bondi, Attorney General, for Appellee.
   PER CURIAM.

LaTroy Bouknight appeals the trial court’s denial of postconviction relief under rule 3.850, Florida Rules of Criminal Procedure upon its rejection of Bouknight’s claims of ineffective assistance of counsel.

On the first issue, Bouknight claimed that defense counsel was ineffective for failing to renew the motion for change of venue. No evidentiary hearing was held on this point, but the trial court made detailed references to the record and attached to its order portions of the record refuting Bouknight’s allegations that pretrial publicity had made it impossible to seat an unbiased jury. Jurors who indicated any awareness of pre-trial publicity were individually interviewed by counsel and the jurors selected for the case each stated that they had no preconceived opinions of the defendant’s guilt or innocence and would try the case based only on the evidence presented to them. The trial court correctly relied on Dillbeck v. State, 964 So.2d 95 (Fla.2007) in ruling that counsel is not ineffective for failing to move for a change of venue when the jury is selected without undue difficulties.

An evidentiary hearing was conducted to consider the other two grounds upon which Bouknight alleged that defense counsel had been ineffective. Accordingly, the trial court’s factual findings — that the absence of a request for a jury instruction on alibis and counsel’s cross-examination of a witness for the state regarding the defendant’s warrant for a separate crime were trial strategies — are not disturbed on appeal. The trial court’s order on these points made detailed findings, contained numerous references to the record in support, with copies attached as Exhibits, and recited the applicable case law relied upon.

Because Appellant has not shown any error in the trial court’s order, the order on appeal is AFFIRMED.

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Sue Ann COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2222.
    District Court of Appeal of Florida, First District.
    May 25, 2012.
    Rehearing Denied July 11, 2012.
    Sue Ann Cole, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. RApp. P. 9.141(d)(5).

ROBERTS, WETHERELL, and ROWE, JJ., concur.


text:
    S.M., a child, Petitioner, v. STATE of Florida and DEPARTMENT OF JUVENILE JUSTICE, Respondents.
    No. 4D12-1751.
    District Court of Appeal of Florida, Fourth District.
    May 25, 2012.
    Diamond R. Litty, Public Defender, and Renee M. Rancour, Assistant Public Defender, Vero Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

S.M., a juvenile, petitions for a writ of habeas corpus seeking release from home detention pending a violation of probation hearing. We grant the petition, finding that section 985.255(l)(h), Florida Statutes (2011), does not permit home detention without a qualifying risk assessment score.

S.M. was arrested for a second degree felony. When brought before the court for a detention review hearing, the state did not have the requisite probable cause for the second degree felony but filed a petition charging S.M. with felony battery with a prior conviction. Because she did not have a prior conviction, but only a previous adjudication of delinquency withheld on misdemeanor battery charges, the court agreed that there was no probable cause for the felony battery, and it could not be scored on the risk assessment. Nevertheless, the state maintained that she had violated probation on the misdemeanor battery charges, and the prosecutor sought detention on the violation. The state asserted, however, that the score on the risk assessment instrument (RAI) should reflect zero points. Eventually all parties agreed to the zero points. The court placed S.M. on home detention. From this order, she has filed this petition for writ of habeas corpus contending that the court could not place her in home detention without a qualifying RAI score.

The detention of juveniles is governed entirely by statute and strict compliance is required. Z.B. v. Dep’t of Juvenile Justice, 938 So.2d 584, 585 (Fla. 1st DCA 2006). The court failed to follow the statutory procedures and in these circumstances could not order detention absent a qualifying RAI score. § 985.255(3)(a), Fla. Stat. (“Unless a child is detained under paragraph (l)(d) or paragraph (l)(e), the court shall use the results of risk assessment performed by the juvenile probation officer and, based on the criteria in subsection (1), shall determine the need for continued detention.”); A.S. v. Byrd, 777 So.2d 1171, 1172-73 (Fla. 4th DCA 2001) (quashing a home detention order because no RAI was prepared). An RAI score of zero does not permit detention.

Section 985.255(l)(h) does not require mandatory home detention with electronic monitoring for all juveniles charged with violating probation. This section permits a court to continue detention required by the juvenile probation officer during intake. § 985.255(1), Fla. Stat. (2011) (“Subject to s. 985.25(1), a child taken into custody and placed into nonsecure or home detention care or detained in secure detention care prior to a detention hearing may continue to be detained by the court if ... ”). During intake, the juvenile probation officer may not require detention unless authorized by the RAI. § 985.25(l)(b), Fla. Stat. (2011). Thus, section 985.255(l)(h) presupposes the existence of a qualifying RAI score before a court may continue detention.

Because S.M.’s RAI score was zero, the court erred in placing her in home detention.

Petition granted.

WARNER, HAZOURI and LEVINE, JJ., concur.


text:
    PALM BEACH COUNTY SCHOOL DISTRICT & F.A. Richard & Associates, Appellants/Cross-Appellees, v. Beverly BLAKE-WATSON, Appellee/Cross-Appellant.
    No. 1D11-4999.
    District Court of Appeal of Florida, First District.
    May 29, 2012.
    Rehearing Denied July 11, 2012.

      Matthew D. Koblegard and Scott A. Silver of Silver, Bass & Brams, P.A., West Palm Beach, for Appellants/Cross-Appel-lees.
    David C. Wiitala of Wiitala & Contole, P.A., North Palm Beach, for Appel-lee/Cross-Appellant.
   PER CURIAM.

In this workers’ compensation case, the Employer/Carrier (E/C) appeals, and Claimant cross-appeals, an order of the Judge of Compensation Claims (JCC) which both denied reconsideration of dismissal of a petition for benefits (PFB), and awarded attorney’s fees to Claimant in an amount smaller than Claimant requested. Both parties’ positions have merit in part, as explained following a brief summary of the undisputed facts below.

Claimant suffered a compensable accident in October 2008, received medical care, and returned to work in the same capacity until April 2010, when she moved to Orlando to live with her daughter. In July 2010, she filed the first of three PFBs, all of which included claims for attorney’s fees. In response to this first PFB (July PFB), the E/C provided some benefits but then moved to dismiss the PFB, arguing Claimant had not made a good faith effort to resolve the dispute before filing the PFB, as is required by section 440.192(4), Florida Statutes (2008).

During that dispute, Claimant filed two more PFBs, one in November 2010 (November PFB), seeking a psychiatrist and some neurological tests, and one in January 2011 (January PFB), listing claims identical to those in the July PFB. In response, the E/C provided all requested benefits, but did not pay attorney’s fees.

Shortly thereafter, the JCC granted the E/C’s motion to dismiss the July PFB, and dismissed it without prejudice, granting “leave to amend within 20 days.” Claimant moved for reconsideration of this ruling, and also moved for attorney’s fees based on obtaining the benefits requested in the July and November PFBs. The E/C responded to the fee motion, asserting no fees were due on the July PFB because that PFB did not comply with section 440.192(4), and no fees were due on the November PFB because the E/C had provided the requested benefits within thirty days. The JCC declined to revisit dismissal of the July PFB, but found the July PFB was amended by the January PFB, and awarded fees, but at a lower hourly rate than requested, and excluding time spent defending against the motion to dismiss the July PFB.

On appeal, the E/C makes two arguments: that fees based on the July PFB are precluded by section 440.192(7), Florida Statutes (2008), which provides a JCC “may not award attorney’s fees payable by the carrier for services expended or costs incurred prior to the filing of a petition that does not meet the requirements of this section”; and that fees based on the November PFB never attached under section 440.34(3), Florida Statutes (2008), which provides, “attorney’s fees shall not attach under this subsection until 30 days after the date the carrier or employer, if self-insured, receives the petition.” On cross-appeal, Claimant presents three arguments: that the July PFB complied with section 440.192(4) because it included on its face the required certification that she or her attorney “has made a good faith effort to resolve the dispute and ... was unable to resolve the dispute with the carrier”; that, as a consequence, the fee award should have included the time spent opposing the E/C’s motion to dismiss the July PFB; and that no evidence supports the JCC’s finding as to the appropriate rate of hourly pay.

We conclude Claimant’s first two arguments have merit. The JCC erred in dismissing the July PFB, both because section 440.192 does not independently give the JCC authority to “go behind” a counsel’s representations of good faith effort to resolve the dispute in a PFB, and because, although Florida Administrative Code Rule 60Q-6.125 arguably would permit the E/C to seek sanctions for failure to comply with section 440.192, the E/C did not meet the procedural requirements of that rule. It follows that the JCC erred in excluding from the fees the hours spent on the motion to dismiss; therefore, we reverse the JCC’s order in this respect. We affirm, however, the JCC’s finding as to the reasonable hourly fee rate.

We also conclude the E/C’s second argument has merit. The JCC awarded fees on the November PFB on the reasoning that, although the E/C sent a letter to a physician scheduling service within thirty days of the filing of the PFB, the letter “was not addressed to any doctor in particular.” This was error under Jennings v. National Linen Services, 995 So.2d 1153 (Fla. 1st DCA 2008), wherein this court upheld the denial of fees despite the E/C’s inability to secure a physiatrist in response to the claimant’s claim, because there was no allegation of bad faith; to the contrary, the E/C diligently “attempted to schedule appointments with at least five physia-trists, four of whom declined to treat Claimant after reviewing his records.” Here, as in Jennings, the E/C sufficiently established authorization as of the date of the letter, by casting a broad net to a group of physicians, indicating willingness to authorize whichever agreed to undertake the work. We distinguish Harrell v. Citrus County School Board, 25 So.3d 675 (Fla. 1st DCA 2010), on its context; it required the naming of a specific doctor only to obtain a change of physician, whereas the psychiatrist at issue here was the first requested. Therefore, we reverse the award of fees based on benefits in the November PFB.

AFFIRMED in part, REVERSED in part, and REMANDED for recalculation of the total fee amount.

DAVIS, WETHERELL, and SWANSON, JJ„ concur.


text:
    Ronald P. BAKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-1046.
    District Court of Appeal of Florida, Fifth District.
    June 1, 2012.
    Rehearing and Rehearing En Banc Denied July 19, 2012.
    Deana K. Marshall, Riverview, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Baker v. State, 33 So.3d 46 (Fla. 5th DCA 2010) (affirming with citation to Fitzpatrick v. State, 868 So.2d 615 (Fla. 2d DCA 2004)); Baker v. State, 831 So.2d 217, 218 (Fla. 5th DCA 2002) (“Even though the circuit court in Pinellas County granted defendant’s 3.850 motion, and the defendant had already served his sentence, there is no way to alter his release date from that sentence. At the time of his release, defendant had statutory notice of the habitual offender requirements, and committed an offense within five years of his release.”); Price v. State, 692 So.2d 971, 971 (Fla. 2d DCA 1997) (“[A] defendant is not entitled to successive review of a specific issue which has already been decided against him.”) (citation omitted); State v. McBride, 848 So.2d 287, 289-90 (Fla.2003) (“[The law of the case] doctrine requires that ‘questions of law actually decided on appeal must govern the case in the same court and the trial court, through all subsequent stages of the proceedings.’”) (quoting Florida Dep’t of Transp. v. Juliano, 801 So.2d 101, 105 (Fla.2001)).

GRIFFIN, LAWSON and COHEN, JJ„ concur.


author: MARSTILLER, J.

text:
    Brian Michael FAILLE Father and Guardian Advocate/Representative for Brison Gerard Faille, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-0871.
    District Court of Appeal of Florida, First District.
    June 1, 2012.
    Rehearing Denied July 11, 2012.

      Nancy E. Wright, Gainesville, for Appellant.
    Melissa Ellen Dinwoodie, Tallahassee, for Appellee.
   MARSTILLER, J.

Brian Michael Faille is the guardian advocate/representative for his son Brison who suffers mental retardation and a seizure disorder. Brison is a client of the Agency for Persons With Disabilities (“Agency”) through which he receives services under the Home and Community-Based (“HCB”) Services Medicaid Waiver Program. Mr. Faille challenges an Agency order assigning Brison to Tier Three of the program instead of Tier One. Finding no error in the tier assignment, we affirm the order.

Section 393.0661(3), Florida Statutes (2009), creates a four-tiered structure for the HCB waiver program based on the nature and extent of an individual’s disabilities and service needs. Each tier has an annual expenditure limit, and the statute directs the Agency to assign clients to one of the four tiers based on specified cost guidelines, reliable assessment instruments, and client characteristics.

In May 2010, the Agency notified Mr. Faille of Brison’s assignment to Tier Three. At the time, Tier One had no expenditure limit, while the limit for Tier Three was $35,000. See §§ 393.0661(3)(a), (c), Fla. Stat. (2009). The annual limits are now $150,000 and $34,125, respectively. See §§ 393.0661(3)(a), (c), Fla. Stat. (2010). Appellant challenged the assignment, arguing that his son qualified for placement in Tier One. The Tier One Waiver is limited to clients whose intensive medical and adaptive service needs are essential for avoiding institutionalization and cannot be met in the lower tiers, and clients with exceptional behavioral problems who present a substantial risk of harm to themselves or others. See § 393.0661(3)(a), Fla. Stat. (2009); Fla. Admin. Code R. 65G-4.0027(1). This universe of clients includes those who receive 180 hours or more of intensive personal care assistance (“PCA”) per month. See Fla. Admin. Code R. 65G-4.0027(2)(a).

The approved services in Brison’s cost plan for the period July 1, 2009, through June 30, 2010, included PCA, respite care, companion services, behavior assessment, behavioral therapy, dental services, and waiver support coordination services. The total annual cost of these services was $26,240.77. By December 2010, when Mr. Faille’s administrative challenge went to hearing, Brison’s cost plan no longer included the behavioral services. Further, the State Medicaid Plan no longer supplemented the cost of Brison’s PCA services. Consequently, his cost plan for the period July 1, 2010, through June 30, 2011, reflected an increase in the cost of PCA from $4,765.88 to $31,762.50; total cost for the 2010-11 plan was $62,983.30. The Agency approved Brison for 8,470 quarter-hours per year, or 176.46 hours per month, of PCA. In July 2010, the Agency’s Area 3 office had conducted a “Tier Assignment Reconsideration Meeting” to address an increase in PCA. The outcome of the meeting was a recommendation from the Agency personnel present that Brison be placed in Tier One because he was authorized to receive PCA “at the intensive level” and because of “the severity of his behavioral needs.” However, the person or persons at the Agency responsible for making final tier assignment decisions rejected the recommendation.

Following the evidentiary hearing, the hearing officer submitted to the Agency a recommended order including the following findings and conclusions. First, the hearing officer concluded that Brison’s initial placement into Tier Three was appropriate because the total cost of the services in his 2009-10 cost plan was lower than the Tier Three expenditure limit. Second, the hearing officer considered whether the service and cost changes for 2010-11 justified Brison’s placement in Tier One. She found that although Brison has behavioral problems and presents a risk of harm to others to some degree, no type of behavioral service is currently authorized. Thus, she could not conclude that Brison has behavioral problems so exceptional in intensity, duration, or frequency to make him eligible for Tier One placement under rule 65G-4.0027(l)(b). In addition, Brison is not approved to receive 180 hours or more of PCA as required by rule 65G-4.0027(2)(a) for Tier One assignment, and his PCA services are not “intensive” as also required by the rule. Noting that Brison may later need a higher level of PCA to avoid institutionalization, the hearing officer concluded Brison’s current need for such services can be met within the expenditure limit for Tier Three. The Agency entered a final order adopting the hearing officer’s recommendation that Bri-son remain assigned to Tier Three.

Mr. Faille does not challenge the eviden-tiary basis for the order, but argues that our decision in Newsome v. Agency for Persons With Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011), requires the Agency to place Brison in Tier One. We disagree that Newsome is controlling here.

In Newsome, we reversed a Tier Three assignment, finding that the Agency incorrectly interpreted rule 65G-4.0027(4) as limiting consideration of approved services in a client’s cost plan to only those specified in the rule. There, the appellant’s cost plan included PCA, adult day training, transportation, consumable medical supplies, durable medical equipment, adult dental care, respite care, and waiver support coordination, at a total cost of approximately $72,000. See Newsome, 76 So.3d at 974. In determining that the appellant’s needs could be met in Tier Three, the Agency considered only the cost of her PCA and waiver support coordination. Id. Finding this to be error, we reasoned:

[Rule 65G-4.0027(4) ] states that the listed services are to be used as the “primary basis” for tier assignment; it does not state that the listed services are the only services to be considered.... [T]he Agency’s narrow interpretation of this rule is inconsistent with the proposition stated in rule 65G-4.0026(l)(c) that “[t]he services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive, or behavioral needs of a client.”

Id. at 975. We concluded that at least one other service in the appellant’s cost plan— consumable medical supplies — was directly related to her intensive medical needs, and that had the Agency correctly considered it, the appellant’s needs would have exceeded the Tier Three expenditure limit. Id.

Newsome is distinguishable from the instant case, however. The rule at issue in that case — rule 65(3-4.0027(4) — applies only to “[c]lients who meet the [Tier One] criteria in subsection(l)[.]” The appellant in Newsome had intense medical or adaptive needs and met the criterion in rule 65G-4.0027(l)(a); thus, she was eligible for placement in Tier One. Brison, on the other hand, does not satisfy the medical, adaptive, or behavioral needs criteria in rule 65G-4.0027 (l)(a) and (l)(b). Neither does he satisfy the intensive PCA need criterion in subsection (2)(a). Consequently, he does not meet the threshold requirements for Tier One, and “it is not necessary to consider, as it was in New-some, whether his needs can be met in a lower tier.” Spencer v. Agency for Persons With Disabilities, 86 So.3d 1250, 1252 (Fla. 1st DCA 2012).

The evidence presented to the hearing officer established that Brison’s adaptive needs, for which the Agency has approved 176.45 hours of PCA at a cost of $31,762.50, can be met within the Tier Three spending cap. Accordingly, we affirm the order assigning him to Tier Three.

AFFIRMED.

PADOVANO and ROWE, JJ., concur.

      . Brison did not meet the Tier Two residential habilitation requirement or the Tier Four $14,792 expenditure limit. See §§ 393.0661 (3)(b), (d), Fla. Stat. (2009).

      . See Fla. Admin. Code R. 65G-4.0026(4) ("For all Tiers the client must utilize State Plan Medicaid services ... that duplicate the waiver services proposed for the client.”).

      . 8,470 -*• 4 [quarter hours per hour] = 2,117.50 [annualized hours of PCA]; 2,117.50 12 [months] = 176.45 [hours of PCA per month]


text:
    Leroy GOODWIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1425.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied July 27, 2012.

      Carlos F. Gonzalez of Diaz Reus & Targ, LLP, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Leroy Goodwin appeals a circuit court order which denied his post-conviction motion for DNA testing and motion for discovery after an evidentiary hearing. Because competent, substantial evidence supported the trial court’s finding that the DNA evidence Goodwin sought no longer existed, we affirm.

Goodwin was convicted of sexual battery in 1984 and sentenced to life in prison with a twenty-five year mandatory minimum. Almost twenty years later, he filed a motion for post-conviction DNA testing pursuant to Florida Rule of Criminal Procedure 3.858. The trial court denied his motion as legally insufficient. On appeal, however, we determined that the motion was legally sufficient and reversed and remanded to the trial court to entertain Goodwin’s motion on the merits. Goodwin v. State, 930 So.2d 862 (Fla. 4th DCA 2006).

On remand, the trial court held an evi-dentiary hearing on the motion for DNA testing and heard testimony of extensive efforts undertaken by Broward Sheriffs Office Detective Eric Hendel to locate the items identified in Goodwin’s motion. The court found that despite diligent efforts to search for the evidence in various locations, including evidence vaults at the Bro-ward Sheriffs office, medical examiner’s office, Pompano Beach City Hall, Pompano Beach Police Department, Broward Sheriffs Office crime lab, no evidence could be found. The court concluded that “the State and Detective Hendel have performed a thorough, exhaustive, and complete search, attempting to locate the evidence Defendant wished to have tested, after searching all possible locations where the evidence could be located_His [Detective Hendel’s] attempts were complete and exhaustive. This Court has already ordered the State to attempt to locate these items, and they made a thorough and exhaustive attempt. As such, an order directing the State or Detective Hendel to continue to search would be an exercise in futility.”

Florida Rule of Criminal Procedure 3.853 provides procedures for obtaining postconviction DNA testing. Once the trial court has held a hearing on the motion, it must make an initial finding “whether it has been shown that physical evidence that may contain DNA still exists.” Rule 3.853(c)(5)(A), Fla. R.Crim. P. Here, the trial court found that there was no showing that the evidence for DNA testing still existed. That ended its inquiry under the rule.

On appeal, we must determine whether competent, substantial evidence supports the trial court’s finding that evidence for DNA testing no longer exists. Kelley v. State, 974 So.2d 1047 (Fla.2007). In this case, the trial court’s finding was adequately supported by testimony that despite a diligent search of all locations where the requested evidence might have been stored, none of the evidence requested by Goodwin could be located. Accordingly, we affirm the circuit court’s denial of Goodwin’s motion for postconviction DNA testing. We further find no abuse of discretion in the denial of his request for post-hearing discovery.

Affirmed.

POLEN, GROSS and TAYLOR, JJ., concur.


text:
    Elmer WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1707.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2012.
    Rehearing Denied July 27, 2012.
   PER CURIAM.

Affirmed. See Bynes v. State, 854 So.2d 289 (Fla. 4th DCA 2003).

WARNER, HAZOURI and GERBER, JJ., concur.


text:
    Craig WOEHRLE, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D12-0068.
    District Court of Appeal of Florida, First District.
    June 6, 2012.
    Rehearing Denied July 12, 2012.
    Craig F. Woehrle, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of April 2, 2012, the Court has determined that the appeal is untimely. Although the lower tribunal treated the appellant’s motion for rehearing as timely filed, it was without authority to do so. Fla. R. Civ. P. 1.090(b). Consequently, the appellant’s untimely motion for rehearing failed to delay rendition of the underlying order pursuant to Florida Rule of Appellate Procedure 9.020(h). As a result, the notice of appeal, which was filed more than 30 days after rendition of the final order, failed to timely invoke the Court’s jurisdiction. Accordingly, the appeal is dismissed for lack of jurisdiction.

ROBERTS, WETHERELL, and ROWE, JJ., concur.


author: JACOBUS, J.

text:
    Donald ESLINGER, in his official capacity as Sheriff of Seminole County, Appellant, v. Kimberly SHIELDS, Appellee.
    No. 5D10-4201.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2012.
    Rehearing Denied July 19, 2012.
    Thomas W. Poulton, Karin M. Glascock, and Christine H.D. Moser of DeBevoise & Poulton, P.A., Winter Park, for Appellant.
    Chad A. Barr and Crystal L. Eiffert of Eiffert & Associates, P.A., Orlando, for Appellee.
   JACOBUS, J.

Donald Eslinger, Sheriff of Seminole County, timely appeals a jury award of damages to Kimberly Shields on a claim of false imprisonment by the Seminole County Sheriffs Office. Eslinger contends that the trial court should have directed a verdict on the false imprisonment claim because the Seminole County Sheriffs Office arrested Shields based on two valid warrants. We agree and reverse.

In 2002, Shields was involved in an automobile accident in Seminole County. During the investigation of the accident, Shields presented her driver’s license and registration information to the Deputy Sheriff at the scene. The Deputy conducted a warrant search and found there were two outstanding felony warrants for Shields out of Charlotte County. The Deputy arrested Shields and took her to the Seminole County Jail. At the jail, she was strip-searched and detained until she was brought before a magistrate for initial appearance. Unbeknownst to Shields, her identity had been stolen by a person in Charlotte County and that person had committed crimes, which resulted in the issuance of the felony warrants. The warrants contained Shields’ information, including her name, birth date, height, weight, and her social security number. During the time she was in custody, Shields maintained that she had not committed any crimes and she was not the subject of the warrants. It was ultimately determined that Shields was not the subject of the warrants, and she was ordered released by the magistrate at initial appearance.

Shields sued Eslinger, as Sheriff of Seminole County, for false imprisonment, negligence for an unlawful strip-search, and negligent training and supervision. The case proceeded to trial and, after Shields presented her case-in-chief, Es-linger moved for a directed verdict on the false imprisonment claim. The lower court denied that motion. The jury returned a verdict in Shields’ favor and awarded her $75,000 for the false imprisonment claim and $25,000 for the unlawful strip-search claim.

On appeal, Eslinger argues the lower court erred in denying his motion for directed verdict on the false imprisonment claim because the warrants for Shields were valid. We agree.

This case is controlled by Willingham v. City of Orlando, 929 So.2d 43 (Fla. 5th DCA 2006). There, Willingham was the victim of identity theft. The man who had stolen Willingham’s identity had an outstanding warrant for his arrest. The warrant was issued in Willingham’s name and Willingham was arrested based on the warrant. Id. at 45. At the time of his arrest, Willingham tried to explain that his identity had been stolen, but the officer did nothing to investigate Willingham’s contention. Id. at 45-46. He was taken to the Orange County Jail and then transported to the Osceola County Correctional Facility. Id. at 46. Five days later, jail staff learned that Willingham’s identity had in fact been stolen and the warrant was for someone else. He was subsequently released. Id.

Willingham sued Orange County, the City of Orlando, and the arresting officer for false imprisonment. Id. The lower court granted defendants’ motions for summary judgment, finding that Willing-ham’s rights were not violated because the officer executed a valid arrest warrant. Id. at 47.

We affirmed the lower court’s judgment and explained our reasoning as follows:

[t]he enforcement of facially sufficient and validly issued arrest warrants are duties that law enforcement and the governmental entities associated with them owe to the general public and not to any individual person. There was no exercise of discretion involved. The warrant was validly issued, and it was the duty of the agencies to see to it that the warrant was given full effect.

Id. at 50.

Shields’ situation is identical to Willing-ham’s. The warrants from Charlotte County were valid. As such, the Seminole County Sheriffs Department had no obligation to look behind the warrants and no discretion in executing them. Thus, Shields was properly placed under arrest and she has no claim for false imprisonment. The judgment for false imprisonment is reversed and the matter is remanded for entry of a judgment in Es-linger’s favor.

REVERSED and REMANDED.

SAWAYA and LAWSON, JJ., concur.

      . Eslinger did not appeal the jury's award for Shields' claim of unlawful strip-search.