text:
    PENSACOLA JUNIOR COLLEGE FACULTY ASSOCIATION, United Faculty of Florida, Florida Teaching Profession, National Education Association, Appellant, v. PENSACOLA JUNIOR COLLEGE BOARD OF TRUSTEES, Appellee.
    No. 1D10-682.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.

      Tobe Lev of Egan, Lev & Siwiea, P.A., Orlando, for Appellant.
    Michael Mattimore, Dena H. Sokolow, and Jason Vail of Allen Norton & Blue, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The Pensacola Junior College Faculty Association (Association) appeals a Final Order of the Public Employees Relations Commission (PERC) determining that the Pensacola Junior College Board of Trustees (College) did not commit an unfair labor practice by failing to process a grievance through arbitration.

In 2005, the College and the Association entered into a collective bargaining agreement (CBA) which set forth, among other things, the manner in which disputes arising under the agreement should be addressed. Section 10.02A of the CBA provides for the filing of grievances, defined in relevant part as a written claim that the College has violated or misapplied a specified provision of the CBA with resulting harm. In November 2008, the Association filed a grievance alleging that the College violated the CBA by failing “to provide a recurring base adjustment as required by article 15.01C — Recurring Base Adjustment.” Section 15.01 C of the CBA provides that “[t]o the extent possible within the budget model, faculty hired prior to July 1 of the contract year shall receive a recurring adjustment to their 164-day base contract. This adjustment shall be planned to be not less than two percent (2%) of the base contract.”

The Association argued that the College violated section 15.01C by failing to provide an automatic 2% pay increase to eligible bargaining unit members on July 1st of the new contract year. The College denied the grievance, asserting that because the College had not yet made any determination on wages for the new contract year, the grievance was premature and the dispute was not ripe for grievance. Additionally, the College asserted that the matter was currently subject to an ongoing impasse proceeding. Lastly, the College contended that the grievance was untimely. After the College denied the grievance and refused to participate in arbitration, the Association filed an unfair labor practice charge with PERC.

In a recommended order to PERC, a hearing officer determined that the grievance complied with the requirements of section 10.02A of the CBA, and that the College committed an unfair labor practice when it refused to process the grievance through arbitration. However, PERC rejected the hearing officer’s recommended order and concluded with positive assurance that the Association’s grievance was not arguably arbitrable. PERC reasoned that the College’s failure to provide the 2% pay increase could not have harmed the Association’s members because the budget model referenced in section 15.01C was never created and the section included permissive language that did not grant a specific pay increase. The Association appeals the PERC order, arguing that PERC erred by focusing on the merits of the grievance in determining that the arbitration clause was not susceptible to an interpretation covering the asserted dispute. We agree with the Association.

In AT & T Technologies, Inc., v. Commc’ns Workers of America, 475 U.S. 643, 648-50, 106 S.Ct. 1415, 89 L.Ed.2d 648 (1986), the Supreme Court reiterated the principles regarding the court’s role in determining whether a particular dispute is arbitrable. Citing United Steelworkers of Am. v. American Mfg. Co., 363 U.S. 564, 80 S.Ct. 1343, 4 L.Ed.2d 1403 (1960); United Steelworkers of Am. v. Warrior & Gulf Navigation Co., 363 U.S. 574, 80 S.Ct. 1347, 4 L.Ed.2d 1409 (1960); and United Steelworkers of Am. v. Enter. Wheel & Car Corp., 363 U.S. 593, 80 S.Ct. 1358, 4 L.Ed.2d 1424 (1960). “[I]n deciding whether the parties have agreed to submit a particular grievance to arbitration, a court is not to rule on the potential merits of the underlying claims.” AT & T. at 649, 106 S.Ct. 1415. To this end, the Court cautioned that:

courts ... have no business weighing the merits of the grievance, considering whether there is equity in a particular claim, or determining whether there is particular language in the written instrument which will support the claim. The agreement is to submit all grievances to arbitration, not merely those which the court will deem meritorious.

Id. at 650, 80 S.Ct. 1358 (quoting American Mfg. Co., 363 U.S. at 568, 80 S.Ct. 1343). Even claims that appear to be frivolous should be permitted to proceed to the arbitrator. Id. at 649-50, 80 S.Ct. 1358.

However, where it can be said with “positive assurance” that the arbitration clause may not be interpreted in a way to cover the dispute, then an order to arbitrate should be denied:

an order to arbitrate the particular grievance should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute.

Id. at 650, 80 S.Ct. 1358 (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347). But, if there is doubt, such doubt “should be resolved in favor of coverage.” Id. (quoting Warrior & Gulf, 363 U.S. at 582-83, 80 S.Ct. 1347).

Here, the Association argues that pursuant to Section 15.01C its members were entitled to an automatic 2% pay increase at the beginning of the contract year. However dubious the Association’s argument may be, we cannot say with positive assurance that the grievance clause is not susceptible of an interpretation that covers the asserted dispute. Accordingly, we are constrained to reverse and remand to PERC for further proceedings.

REVERSED and REMANDED.

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


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Guadalupe GONZALEZ, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Quick Cleaning, Inc., Appellees.
    No. 1D10-1834.
    District Court of Appeal of Florida, First District.
    Dec. 14, 2010.
    Guadalupe Gonzalez, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Assistant General Counsel, Tallahassee, for Appellees.
   MARSTILLER, J.

At issue in this unemployment compensation appeal is whether Appellant’s successive absences from work constituted misconduct sufficient to disqualify her from receiving unemployment benefits. Under section 443.036(29), Florida Statutes (2009):

(29) “Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties or obligations to his or her employer.

“Misconduct usually involves repeated violations of explicit policies after several warnings.” Grossman v. J.C. Penney Co.2071, 689 So.2d 1206, 1207 (Fla. 3d DCA 1997). See also Ash v. Fla. Unemployment Appeals Comm’n, 872 So.2d 400, 402 (Fla. 1st DCA 2004); Barchoff v. Shells of St. Pete Beach, Inc., 787 So.2d 935, 936 (Fla. 2d DCA 2001). Absenteeism can constitute misconduct where there is “ ‘evidence of an employee’s excessive unauthorized absenteeism.’ ” Mason v. Load King Mfg. Co., 758 So.2d 649, 654 (Fla.2000) (citing and quoting Tallahassee Hous. Auth. v. Fla. Unemployment Appeals Comm’n, 483 So.2d 413 (Fla.1986) (emphasis added)). “The term ‘unauthorized’ implicitly connotes an element of willfulness because it means that the absences were unexcused and without the permission of the employer.” Id. at 654-55.

The pertinent facts, as found by the appeals referee and supported by competent, substantial evidence in the record, are as follows:

The claimant worked as a housekeeper for a cleaning company. The claimant worked from December 2007, through September 23, 2009. The claimant was made aware that when her job transferred from a different company to the cleaning company, the cleaning company would keep the same policies and handbook. On July 14, 2009, the claimant used her last sick day because her daughter was in intensive care. The claimant was absent from July 15, 2009, to July 17, 2009, and on August 14, 2009. The claimant was often late to work and often left work early. The claimant was verbally warned that her job was in jeopardy. On July 16, 2009, the claimant had again used all of her sick days. The claimant left early on several occasions. The claimant was in therapy from a workers[’] compensation accident as of August 17, 2009. On the days that the claimant’s therapy was cancelled, the claimant did not show up at work. The claimant was discharged by letter on September 23, 2009 by the president of the company.

On these findings, the referee concluded Appellant’s attendance issues were within her control and continued after warning from the employer. The referee deemed Appellant disqualified from receiving unemployment compensation benefits because “her actions show a wanton and willful disregard of her duties and obligations to the employer.” The Unemployment Appeals Commission (“Commission”) affirmed the referee’s decision.

We find no error in the Commission’s interpretation of section 443.036(29) as applied to the facts above. See Chapman v. Fla. Unemployment Appeals Comm’n, 15 So.3d 716, 721 (Fla. 1st DCA 2009) (Commission’s interpretation of the statutes it administers is entitled to great weight and will not be overturned unless clearly erroneous). Appellant asserts her absences were excused because she was undergoing treatment for a workplace injury. Though she may have been authorized to miss work for therapy sessions, the record shows she was repeatedly absent from work for other reasons, and on those occasions her absences were not authorized.

AFFIRMED.

WEBSTER and LEWIS, JJ„ concur.


author: PER CURIAM.

text:
    David SHARE, Appellant, v. Jacqueline MEDINA, Appellee.
    No. 4D09-3737.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Jan. 21, 2011.
    David Share, North Las Vegas, pro se.
    Walter A. Bajek, Hollywood, for appel-lee.
   PER CURIAM.

Jacqueline Medina filed a four-count complaint against her step-brother, David Share. The first three counts involve a trust their parents had formed. In those counts, Medina sued Share for breach of trust arising from his conduct as a co-trustee, for an order compelling him to cooperate in the distribution of her share, and, as an alternative to the second count, to remove him as a trustee. In the final count, Medina sought to recover on a defaulted note. Share denied the allegations, asserted affirmative defenses, and counterclaimed. Medina moved for summary judgment. Both parties submitted affidavits and exhibits. The circuit court granted summary final judgment on all four counts. We reverse on the Trust related counts.

While Share appears to have breached his duties to Medina, the extent of such breaches and the damages incurred were disputed issues of material fact. For example, the damages were calculated as half the present value of the money Share withdrew from the trust, with such withdrawals constituting the breaches. But, in making her list of withdrawals, Medina included one withdrawal for $10,000 that was not supported by any of the bank records.

Additionally, Medina included in her damage calculations several withdrawals which Share contends Medina authorized. For example, Share averred that Medina knew about a $10,000 wire transfer to South Africa, as they had discussed it prior to the transaction, and another $5,000 withdrawal was a disbursement to Medina.

Further, Share asserted that Medina was with him when they received a disbursement check for $1,264.39, which they subsequently deposited into the Trust’s checking account. Share also averred that $61,679.31 of the money withdrawn from a Wachovia investment account went into the checking account. The checking account records that Medina provided as an exhibit are incomplete because several months of statements are missing. It is thus possible that Share deposited that money in the checking account. Share also averred that $18,000 of the money he withdrew was his compensation as trustee.

In sum, as to the counts relating to the Trust, the record demonstrates that “the facts are [not] so crystallized that nothing remains but questions of law.” Craven v. TRG-Boynton Beach, Ltd., 925 So.2d 476, 480 (Fla. 4th DCA 2006). Both parties’ affidavits and their exhibits created significant factual disputes concerning the extent of Share’s breaches of trust and the damages for those breaches.

We affirm that portion of the summary judgment on the defaulted note. Share’s defense of accord and satisfaction fails as a matter of law. “Discharge of a claim by accord and satisfaction means ‘a discharge by the rendering of some performance different [in content] from that which was claimed as due and the acceptance of such performance by the claimant as full satisfaction of his claim.” Jacksonville Elec. Auth. v. Draper’s Egg & Poultry Co., 557 So.2d 1357, 1358 (Fla.1990) (emphasis added) (quoting 6 A. Corbin, Corbin on Contracts § 1276 (1962)). Share rendered no performance which would have discharged his obligation to repay the amount owed on the note plus interest.

Ajfimied in part, reversed in part, and remanded.

GROSS, C.J., FARMER and STEVENSON, JJ., concur.


author: FARMER, J.

text:
    Jose MIRANDA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4350.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Jan. 10, 2011.
    Louis Casuso, Miami, for appellant.
    Bill McCollum, Attorney General, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Defendant, an adult, was charged with sexual battery on his niece (by marriage), then under 12. The case went to trial before separate juries on three occasions, the last trial resulting in a guilty verdict.

The victim was 7 when, as she testified, abuse began and continued for 3 or 4 years. At age 11 she gave a statement to police, who began a full investigation. She was seen by health care professionals at the Sexual Assault Treatment Center, who found no medical evidence confirming or negating abuse. Testimony at trial centered on the victim, then in her mid-teens, and two slightly older cousins who described their own sexual abuse by defendant. The victim’s pretrial, hearsay, statements to police were admitted in the State’s case. The victim’s trial testimony varied from those statements as to the number of times she was violated, the nature of some violations, and the temporal span.

On appeal defendant argues that it was error to admit the victim’s pretrial hearsay statements and, also, the testimony of the cousins. We agree that the admission of child hearsay statements was error and reverse for a new trial.

As required by § 90.803(23), the order admitting the child hearsay statements failed to make specific findings of fact as to reliability. Instead the order merely recited boilerplate language as to the ultimate finding of admissibility. In Hopkins v. State, 632 So.2d 1372 (Fla.1994), the Florida Supreme Court held:

“Mere recitation of the boilerplate language of [section 90.803(23) ] ... is not sufficient. Absent the specific findings of reliability mandated by the statute, a reviewing court cannot determine whether the statements were in fact reli able. Failure to make specific findings not only ignores the clear directive of the statute, but also implicates the defendant’s constitutional right to confrontation.” [e.s., c.o.]

Hopkins, 632 So.2d at 1377; see also Lacue v. State, 562 So.2d 388 (Fla. 4th DCA 1990) (reversing because trial court made no specific findings of fact on the record as required by § 90.803; boilerplate language does not suffice).

We find that the order admitting the child’s hearsay merely tracked the statutory language of § 90.803(23) and was therefore insufficient to support the admission of such statements at trial. Heuss v. State, 660 So.2d 1052 (Fla. 4th DCA 1995). Without the detailed findings of fact as to reliability and trustworthiness required by statute, we are unable to conclude that her hearsay statements were admissible.

The State argues that this issue was not preserved. In State v. Townsend, 635 So.2d 949 (Fla.1994), the Supreme Court held that an objection to the lack of sufficient findings is necessary in order to raise the issue on appeal. 635 So.2d at 959. At the third trial, defendant renewed all his previous motions objecting to the admissibility of the child hearsay statements. We read the colloquy with the court during this renewal of objections to place the court on notice that the statutory findings, too, were part of the renewed objection. The issue was preserved.

Reversed for new trial.

TAYLOR and MAY, JJ., concur.

      . We find no Williams rule error in admitting the testimony of the cousins.


author: POLEN, J.

text:
    Edson BARRIOS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4409.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.

      Sidney Z. Fleischman of Fleischman & Fleischman, P.A., Fort Lauderdale, and Luis Reynoso of Law Offices of Walter Reynoso, Coral Gables, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Edson Barrios, was charged by information with sexual battery upon a child (Count I) and lewd or lascivious molestation (Count II) for events occurring between August 1, 2004 and October 31, 2004. Barrios was convicted following a jury trial and was sentenced to life imprisonment on Count I and fifteen years imprisonment on Count II, to run consecutively. Due to improper comments by the State during closing argument, we reverse and remand for a new trial.

The evidence at trial showed that Barrios had been a friend of the victim’s family since before the victim was born. According to the victim, when she was ten years old, her mother allowed her to accompany Barrios to the store to purchase CD’s. After going to the store, Barrios took the victim to his apartment, told her to take off her pants and underwear and lie on his bed. He then inserted his penis into her vagina and removed it when she told him it hurt. The victim did not tell anyone about the incident until months later when her mother, having noticed a change in the victim’s behavior, asked her what was wrong. As months had passed since the incident, the victim’s subsequent examination at the Sexual Assault Treatment Center did not yield any physical evidence linking Barrios to the crime.

During closing, the State argued: “The only true and just verdict is to say, you know what Edson Barrios, you got away with it for a couple of months, but not anymore. You will not do this to anyone else.” Defense counsel objected and the trial court sustained that objection. Later, the prosecutor stated, “Now, there were no abrasions. You heard [the nurse practitioner] say it goes away in a couple of days.' So, the defendant is going to get away with it because the victim didn’t say anything until two months later? Are we going to let Edson Barrios get away with it?” Defense counsel objected, and the trial court overruled the objection. Barrios subsequently moved for a mistrial and a new trial based on the comments, and the trial court denied both motions.

The jury found Barrios guilty as charged, and the court sentenced Barrios to life imprisonment.

Barrios argues the trial court erred in denying his motion for mistrial and his motion for a new trial which were based on the State’s argument during closing because the comments impermissibly appealed to the jury’s sense of “civic responsibility.” The State replies that the motions were correctly denied because the comments were not so harmful or fundamentally tainted as to require a new trial.

A trial court’s rulings on prose-cutorial comments are reviewed for an abuse of discretion. Taylor v. State, 640 So.2d 1127, 1133 (Fla. 1st DCA 1994). The denial of a motion for mistrial is also reviewed for an abuse of discretion. Elisha v. State, 949 So.2d 271, 273 (Fla. 4th DCA 2007).

Here, in denying the motion for new trial, the trial court relied on Spencer v. State, 645 So.2d 377 (Fla.1994), in which the Florida Supreme Court held:

In order for the prosecutor’s comments to merit a new trial, the comments must either deprive the defendant of a fair and impartial trial, materially contribute to the conviction, be so harmful or fundamentally tainted as to require a new trial, or be so inflammatory that they might have influenced the jury to reach a more severe verdict than that it would have otherwise.

Id. at 383 (citations omitted). Applying Spencer, the trial court found that the improper comments did not warrant a new trial.

Barrios likens the improper comments in this case to those made in Porter v. State, 347 So.2d 449 (Fla. 3d DCA 1977), and Russell v. State, 233 So.2d 154 (Fla. 4th DCA 1970). In Porter, the State argued to the jury that if the defendant was not convicted, he would “sell more heroin to people,” and the trial court sustained an objection by defense counsel. Porter, 347 So.2d at 449-50. The Third District determined that the improper remarks went beyond the scope of the issues being tried and denied Porter his right to a fair trial. Id. at 450. The court went on to state that neither the sustaining of defense counsel’s objections nor any curative instruction could have lessened the impact of the remarks and reversed and remanded for a new trial. Id.

Similarly, in Russell, the prosecutor argued to the jury that if they did not convict the defendant, another individual could possibly get killed by the defendant and even went on to say that if the defendant was not made to pay for the crime, “we are going to have people getting stabbed all over Orange County.” 233 So.2d at 154-55. This court found the comments highly prejudicial and agreed with the State that a harmless error analysis was inappropriate. Id. at 155.

We hold that the statements made by the prosecuting attorney during closing argument denied Barrios his right to a fair trial. The second comment, asking the jury whether it would “let Edson Barrios get away with it” is the primary reason for our reversal. The first statement is also problematic in light of the evidence adduced at trial. There was no physical evidence showing that Barrios, in fact, battered the victim. The State’s case rested largely on the victim’s testimony. Accordingly, it was improper and prejudicial for the State to argue that “[t]he only true and just verdict” was to find Barrios guilty.

Reversed and Remanded.

HAZOURI and GERBER, JJ., concur.


text:
    Billy MILNER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-188.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Billy Milner appeals the jury’s finding that he is a sexually violent predator under the Jimmy Ryce Act. He raises two points on appeal, and we address only the first, whether the trial court erred in denying Milner’s request for a special jury instruction. Finding no reversible error, we affirm.

In 1980, Milner pleaded guilty to multiple felonies, including attempted sexual battery, and was sentenced to a term of imprisonment.

In 2001, the State petitioned for Milner’s involuntary civil commitment under the Jimmy Ryce Act and a jury trial ensued, during which both sides presented conflicting expert testimony. The State’s expert diagnosed Milner with both paranoid schizophrenia and “paraphilia not otherwise specified [NOS] in reference to sexual fantasies and urges and behaviors towards non-consenting persons.” However, the State’s expert found no indication of schizophrenia at the time of the 1980 offense. Rather, upon reviewing the criminal arrest records and medical evaluations, the State’s expert opined that Milner acted willfully. Milner also suffered from antisocial personality disorder, and scored in the high risk category, likely to commit future sex offenses. The State’s expert noted Milner’s extensive history of both juvenile and adult arrests, and his extensive and ongoing history of disciplinary reports in prison. In recommending commitment, the State’s expert focused on Milner’s par-aphilia and anti-social personality disorder. While the schizophrenia might make Mil-ner’s behavior “even more unpredictable,” the State’s expert testified, “I wouldn’t factor that into ... mak[ing] a recommendation on civil commitment.”

Milner’s expert testified that Milner suffered not from paraphilia, but solely from schizophrenia. Milner had not raised schizophrenia as an affirmative defense, but sought to show that it would not make him likely to engage in future acts of sexual violence. Milner’s expert testified that there is no literature to suggest that schizophrenia predisposes a person to violent or sexually violent crimes. Milner’s expert opined that it was not the schizophrenia that caused the sexually violent crime in this case.

In concluding that Milner would not re-offend in a sexually violent manner if released, his expert testified:

He’s had one sexually violent offense. It was 28 years ago.... He has a brain disorder, that while it has sexual themes weaving in and out of some delusions, it’s never been acted on in a sexually violent manner, say [sic] for that one episode. That episode also included alcohol by the official documents.

The Jimmy Ryce Act provides for the involuntary civil commitment of persons found to be sexually violent predators. §§ 394.910-394.931, Fla. Stat. (2001). A factfinder “must determine by clear and convincing evidence that the respondent (1) has been convicted of an enumerated sexually violent offense; and (2) suffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” State v. White, 891 So.2d 502, 502-03 (Fla.2004); § 394.912(10), Fla. Stat. The first element was not disputed, as Milner was previously convicted of attempted sexual battery. Further, both sides agreed that Milner suffers from a mental illness. The parties disagreed, however, as to whether Milner’s mental illness makes him eligible for involuntary civil commitment.

The trial court gave the standard jury instruction for civil commitment under the Ryce Act, which tracked the statutory language. In addition, Milner requested a special instruction which tracked the language of section 65E-25.003(3) of the Florida Administrative Code, which pertains to the initial recommendation regarding whether a civil commitment petition should be filed. § 65E-25.003, Fla. Admin. Code. This code provision states that “an individual cannot be considered to meet the criteria for involuntary civil commitment as a sexually violent predator if the individual’s propensity to commit sexually violent offenses is wholly attributable to a mental illness as defined in § 394.455, Fla. Stat. (2001).” Milner’s proposed special instruction read:

An individual cannot be considered to meet the criteria for involuntary commitment as a sexually violent predator if the individual’s propensity to commit sexually violent offenses is wholly attributable to a mental illness. Mental illness is an impairment of the mental or emotional processes that exercise conscious control of one’s actions or the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living. This does not include intoxications or conditions manifested only by antisocial behavior or substance abuse impairment.
If you find that the Respondent’s propensity to commit sexually violent offenses is wholly attributable to a mental illness you must find the Respondent has NOT been proven to be a sexually violent predator.

Milner maintained that the standard jury instruction for Ryce Act prosecutions does not adequately address mental illness, as opposed to mental abnormalities or personality disorders. Milner argued that the issue of whether his prior sexually violent offense was wholly attributable to a mental illness was a jury question, based on the testimony of his expert, who opined that, at the time of the offense, Milner suffered only from schizophrenia. The State argued the special instruction conflicted with the standard instruction. The trial court agreed with the State and declined to give the special instruction. We find no error.

“[SJtandard jury instructions are presumed correct and are preferred over special instructions.” Lynch v. State, 829 So.2d 371, 375 (Fla. 4th DCA 2002) (quoting Stephens v. State, 787 So.2d 747, 755-56 (Fla.2001)). “When a trial court denies a defendant’s request for a special instruction, the defendant has the burden of showing on appeal that the trial court abused its discretion in giving the standard instruction.” Brickley v. State, 12 So.3d 311, 313 (Fla. 4th DCA 2009). The failure to give a requested jury instruction is error if the following three elements are satisfied: “(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.” Id. (quoting Stephens, 787 So.2d at 756).

The Florida Supreme Court has upheld the standard jury instruction for civil commitment under the Ryce Act, observed that it tracks the statutory language, and ruled that it accurately reflects the requirements of the Ryce Act. State v. White, 891 So.2d 502, 506-07 (Fla.2004); Hale v. State, 891 So.2d 517, 520 (Fla.2004). The requested instruction would have required the State to prove — in addition to the statutory elements — that Mil-ner’s propensity to commit sexually violent offenses is not wholly attributable to a mental illness. Although the requested instruction tracks the language of an administrative code provision, where an agency adopts a rule that conflicts with a statute, the statute prevails. Johnson v. State, 709 So.2d 623, 624 (Fla. 4th DCA 1998).

Moreover, the specific authority for the code provision is section 394.930, Florida Statutes. Section 394.9155 states in relevant part, that:

Rules adopted under s. 394.930 shall not constitute:
(a) An evidentiary predicate for the admission of any physical evidence or testimony;
(b) A basis for excluding or otherwise limiting the presentation of any physical evidence or testimony in judicial proceedings under this part; or
(c) Elements of the cause of action that the state needs to allege or prove in judicial proceedings under this part.

§ 394.9155(6) (emphasis added). Notably, Milner never asserted schizophrenia, or section 65E-25.003(3), as an affirmative defense.

Milner’s reliance upon State v. Shaw, 929 So.2d 1145 (Fla. 5th DCA 2006), is misplaced. In Shaw, the defendant moved for a directed verdict, arguing that his prior sexual offenses were the result of his schizophrenia and not a mental abnormality or personality disorder. Id. at 1147. As Milner does here, Shaw relied on section 65E-25.003(3) of the Florida Administrative Code. The trial court granted the motion post-trial, “without elaboration,” after the jury unanimously found that Shaw was a sexually violent predator. Id. at 1147 n. 3. On appeal, the State argued in part that section 65E-25.003(3) addresses only the requirements for filing a petition for commitment, and has no application to a trial court’s ruling on commitment under the Jimmy Ryce Act. Id. at 1148. The Fifth District reversed, finding there was ample evidence presented at trial to support the State’s position and the jury’s conclusion that Shaw’s sexual misconduct was not wholly caused by his schizophrenia. Id. Accordingly, the court found it “need not address the State’s technical arguments regarding the impact of section 65E-25.003(3).” Id.

In summary, we conclude that the standard jury instruction adequately addressed the particular legal standard applicable to the facts of this case, and that the trial court did not commit error in denying Milner’s requested special instruction.

Affirmed.

WARNER and FARMER, JJ., concur.

      . Section 394.455, Florida Statutes, defines "mental illness” as "an impairment of the mental or emotional processes that exercise conscious control of one’s actions or of the ability to perceive or understand reality, which impairment substantially interferes with a person’s ability to meet the ordinary demands of living, regardless of etiology.” § 394.455(18).


author: MAY, J.

text:
    SUNSEEKER INTERNATIONAL LIMITED, Appellant, v. Paul DEVERS, Appellee.
    No. 4D10-2997.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Kenneth J. Joyce, Stacy M. Schwartz and Marissa J. Pullano of Brinkley, Morgan, Solomon, Tatum, Stanley, Lunny & Gordon, LLP., Fort Lauderdale, for appellant.
    Robert L. Jennings of Jennings & Va-lancy, P.A., Stuart, for appellee.
   MAY, J.

A boat manufacturer appeals an order denying its motion to quash service of process. It argues the trial court erred in finding that the plaintiffs service on an authorized distributor satisfied statutory-requirements for effective service of process. We agree and reverse.

The underlying dispute arose over a buyer’s dissatisfaction with a boat purchased from the manufacturer. The plaintiff filed a complaint against the manufacturer, Sunseeker International Limited, the authorized distributor, Sunseeker USA, Inc., and Jefferson Beach Yacht Sales, Inc., a Michigan broker/dealer. The manufacturer is a corporation organized under the laws of the United Kingdom with its principal office and factory in Poole, Dorest, England. All yachts are manufactured in the United Kingdom.

The complaint alleged:

3. Defendant Sunseeker USA, Inc. (“Sunseeker USA”) is a Florida corporation with its principal address located in Ft. Lauderdale, Broward County, Florida. Sunseeker is the U.S. distributor for Sunseeker Yachts, which are manufactured in Poole, England, by Sunseeker International Limited. Upon information and belief Sunseeker USA is either a subsidiary or otherwise under the effective control of Sunseeker International Limited.
4. Sunseeker International Limited (“Sunseeker Ltd.”) manufactures pleasure yachts in the United Kingdom and sells them through distributors, dealers, brokers, and agents in the state of Florida, including Defendant Sunseeker USA, Inc., and is therefore subject to longarm jurisdiction pursuant to Florida law.

The complaint further alleged the buyer purchased a defective luxury yacht through the authorized distributor. The defective yacht led to an agreement for the buyer to purchase another yacht, which was negotiated by a representative of both the distributor and the manufacturer. This led to a second agreement between only the authorized distributor and its dealer, which included replacing the yacht with another larger, newly-constructed yacht.

When the manufacturer subsequently requested the buyer to release his rights in the new yacht for a commission, the buyer refused. The manufacturer then delivered the yacht to a dealer in France. These facts led to the buyer’s complaint against the manufacturer for conversion of the new yacht and civil theft of a deposit.

The verified return of service provided: I ... served a CORPORATION by delivering a true copy of the SUMMONS/COMPLAINT ... to: KENNETH J. JOYCE as REG. AGENT for SUNSEEKER INTERNATIONAL LIMITED at the address of: 200 EAST LAS OLAS BLVD. #1900, FORT LAUDERDALE, FL 33301.

The manufacturer moved to quash service of process, arguing that service was defective because the buyer did not comply with Florida’s statutes to effect service on a foreign corporation and the Hague Convention. The manufacturer also simultaneously moved to dismiss the complaint for lack of personal jurisdiction, arguing that it does not do business in Florida.

The buyer responded by serving a request for production aimed at the issue of personal jurisdiction. The manufacturer objected to jurisdictional discovery, based in part on the pending motion to quash service. The buyer then filed a motion to compel production, claiming service on the manufacturer was proper through either sections 48.081(l)(d) or (2), Florida Statutes (2009). The trial court ordered jurisdictional discovery. We stayed the case pending this appeal.

At the hearing on the motion to quash, the buyer provided the trial court with a one-page summary printout from the Florida Secretary of State’s website. The buyer represented that the manufacturer was still registered to do business in Florida, but did not have a registered agent. The buyer therefore served the authorized distributor as a business agent, pursuant to section 48.081, Florida Statutes (2009).

The manufacturer responded that it had withdrawn its registration in 2004, which was also reflected in the summary page. The trial court denied the motion to quash. This order is the subject of this appeal.

The denial of a motion to quash service of process is subject to de novo review. Bank of Am., N.A. v. Bornstein, 39 So.3d 500, 502 (Fla. 4th DCA 2010). “Statutes governing service of process should be strictly construed, and valid service on a corporation may be effected only by complying with such statutes. Absent strict compliance, the court lacks personal jurisdiction over the corporation.” Id. (citations omitted).

The manufacturer argues that service was defective on its face because the return reveals that service was perfected by serving its registered agent, but it has not had a registered agent in Florida since 2004. The manufacturer further argues that the buyer failed to plead and prove perfected service. The buyer responds that the printout revealed the manufacturer was registered to do business within the state and had designated the distributor as its registered agent. For the reasons that follow, we agree with the manufacturer and reverse.

The party invoking the court’s jurisdiction has the burden of proving proper service of process. Id. To meet that burden, a plaintiff may produce evidence of a valid return of service. Id. at 503. “If the return is regular on its face, then the service of process is presumed to be valid.... However, if the return is defective on its face, it cannot be relied upon as evidence that the service of process was valid.” Id. (quoting Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007)). On its face, the return appears to be valid. However, as the manufacturer established, the buyer failed to plead and prove proper service under a provision of the Florida statutes.

Under the relevant sections of 48.081, process against a foreign corporation may be served “on any officer or business agent residing in the state” or “on any agent transacting business for it in this state.” § 48.081(1)(d) and (2), Fla. Stat. (2009).

For purposes of service of process, a business agent has been held to be the person who represents the corporation and who officially speaks for it in the local business affairs of the corporation. Furthermore, he must have the general authority to act for the corporation and be authorized to manage its business within the state.

Se. Mail Transp., Inc. v. Amoco Oil Co., 402 So.2d 522, 524 (Fla. 1st DCA 1981) (citation omitted). Here, the buyer failed to allege that the distributor was a business agent of the manufacturer or an agent transacting business for it.

The buyer also failed to prove the distributor was the business agent of the manufacturer. The buyer provided the trial court with only a printout from the Secretary of State’s website. Significantly, that printout revealed that the manufacturer had withdrawn its registration in 2004. The buyer therefore failed to sustain its burden of proof.

The buyer having failed to establish compliance with Florida’s statutory requirements for service of process, the trial court erred in denying the motion to quash service of process. The case is reversed and remanded. Once service is perfected, the court may permit discovery on the jurisdictional issue if appropriate. Gleneagle Ship Mgmt. Co. v. Leondakos, 602 So.2d 1282 (Fla.1992).

Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

      . The buyer argues that the manufacturer waived personal jurisdiction because it first filed a motion for extension of time in which it advised it would contest personal jurisdiction. We disagree. The motion for extension of time did not waive personal jurisdiction because it did not go to the merits of the case. Moo Young v. Air Canada, 445 So.2d 1102 (Fla. 4th DCA 1984).


author: DAVIS, Judge.

text:
    Wolf WEINHOLD and Wolf Weinhold & Co., Appellants, v. KABE PLANUNGSGESELLSCHAFT FUR SCHLUSSELFERTIGES BAUEN MBH; Daniel DeCaro Real Estate Auctions, Inc.; and Sky Real Estate Company, Inc., k/n/a Sky Real Estate Company, LLC, Appellees.
    No. 2D09-4490.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2010.

      Susan J. Silverman, Sarasota, for Appellants.
    Nevin A. Weiner of Nevin A. Weiner, P.A., Sarasota, for Appellee Kabe Plan-ungsgesellschaft Fur Schlusselfertiges Bauen MBH.
    Charles F. Johnson of Blalock, Walters, Held & Johnson, P.A., Bradenton, for Ap-pellees Daniel DeCaro Real Estate Auctions, Inc., and Sky Real Estate Company, Inc.
   DAVIS, Judge.

Wolf Weinhold, individually, and Wolf Weinhold & Co. (the Company) challenge the trial court’s August 25, 2009, Final Judgment Confirming Arbitration Awards and August 31, 2009, order denying their motions for continuance and to dismiss the complaint and vacate the arbitration awards. Because the trial court abused its discretion in denying Mr. Weinhold’s emergency motion for continuance, we reverse the final judgment confirming the arbitration awards and remand for the trial court to reconsider the motion to dismiss the complaint and vacate the arbitration awards.

Kabe Planungsgesellschaft Fur Schlus-selfertiges Bauen MBH (Kabe) was the seller of two adjoining pieces of property. The Company entered into a contract to purchase them after placing preauction bids. Mr. Weinhold submitted personal checks as deposits on the properties. However, the sales transaction never went to closing, and the deposit checks were returned for insufficient funds. Kabe sued the Company for breach of contract and Mr. Weinhold, individually, for worthless check damages.

The contract between Kabe and the Company contained an arbitration agreement. An arbitration panel concluded that the Company was required by contract to arbitrate the dispute. The panel further concluded that although Mr. Weinhold did not sign the agreement in an individual capacity, his participation in the arbitration proceedings regarding the claim on the worthless deposit checks would not be burdensome because of his required presence as a witness on the claim against the Company. The panel ultimately concluded that both the Company and Mr. Weinhold owed damages and attorney’s fees to Kabe.

Prior to the confirmation of these arbitration awards by the trial court, the Company and Mr. Weinhold asked the trial court to dismiss the complaint and vacate the arbitration awards. Their motion alleged that the arbitration clause was not enforceable as to the Company and that because Mr. Weinhold had not signed the contract, the arbitration panel lacked individual personal jurisdiction over him. A hearing was held, after which the trial court reserved ruling.

The trial judge then recused herself, and a hearing on the still pending motion was scheduled before a successor judge. Four days before the new hearing, Mr. Wein-hold filed an emergency motion to continue the hearing because he had suffered head injuries in a car accident and as a result was taking several medications. He attached to his motion a letter in which his doctor suggested that he should not participate in a court hearing for several weeks. There is nothing in the record before us to indicate that the trial court considered this motion. Instead, the record reflects that the court held the hearing as scheduled with no appearance by Mr. Weinhold. No transcript of this hearing is available, and it is not clear whether either the motion for continuance or the motion to dismiss the complaint and vacate the arbitration awards was addressed at the hearing. The trial court entered the final judgment confirming the arbitration awards immediately following the hearing. The court then denied the motions for continuance and to vacate the arbitration awards three days later.

“It is generally reversible error to refuse to grant a motion for continuance when a party or his counsel is unavailable for physical or mental reasons, which unavailability prevents fair and adequate presentation of the party’s case.” Vollmer v. Key Dev. Props., Inc., 966 So.2d 1022, 1029 (Fla. 2d DCA 2007). In the instant case, the trial court abused its discretion in failing to grant Mr. Weinhold’s motion for continuance when he was unavailable for a few weeks due to documented physical and mental impairment due to injuries suffered in a car accident.

Although trial courts are endowed with rather broad discretion in deciding whether to grant or deny a motion for continuance, the exercise of that discretion is not absolute. We are charged with the task of reviewing a court’s decision on a continuance motion and setting it aside if we determine the trial court abused its discretion. This court considers certain factors in making that determination, including 1) whether the mov-ant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the movant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.

Id. (quoting Myers v. Siegel, 920 So.2d 1241, 1242 (Fla. 5th DCA 2006)).

There is nothing in the instant record to suggest that Kabe faced prejudice from the short delay that would result from the granting of a continuance. Mr. Weinhold provided the trial court with a doctor’s letter to support his contention that his concussion would preclude him from participating in the hearing for a few weeks and that the injury was the result of a car accident. Although on appeal Kabe suggests that Mr. Weinhold was using dilatory tactics, there is nothing on the face of the record to support that the requested continuance based on the accident was an intentional delay. The fact that Mr. Wein-hold and the Company suffered injustice as a result of the denial of the motion for continuance seems clear in this instance. Mr. Weinhold was not permitted the opportunity to present his argument — that he was not a party to the contract containing the arbitration clause and thus could not be bound by the determination of the arbitration panel — to the trial court. Substantively, his argument may have merit. See generally LeNeve v. Via S. Fla., L.L.C., 908 So.2d 530, 535 (Fla. 4th DCA 2005) (“The issue here is whether a non-signatory to an arbitration agreement waived his right to litigate in circuit court by actively participating in an arbitration.”). And while Mr. Weinhold could not argue pro se on behalf of the Company’s positions at the hearing, the Company was still entitled to have its corporate representative present. Cf. Polyglycoat Corp. v. Hirsch Distribs., 442 So.2d 958, 959 (Fla. 4th DCA 1983) (“[The corporate representative] was excluded, leaving no one present in the courtroom on behalf of [the corporation].... This was error.”). Furthermore, the fact that the arguments were presented to a different judge at an earlier hearing does not change our determination. There is neither transcript nor indication on the face of the order that any of those earlier arguments were actually considered by the successor judge prior to entering the final judgment.

After considering the factors outlined in Vollmer, it is clear that the trial court abused its discretion in holding the hearing without granting Mr. Weinhold’s emergency motion for continuance. We therefore reverse the final judgment confirming arbitration awards and remand for the trial court to consider and rule on the motion to vacate the arbitration panel’s recommendation. Due to the temporary nature of Mr. Weinhold’s injuries, we do not find it necessary for the trial court to further address his need for a continuance prior to setting a hearing on the motion to vacate the arbitration awards. Because the trial court has not yet addressed the pending motion on its merits, we do not further address the substantive challenges to the arbitration awards.

Reversed and remanded.

VILLANTI and MORRIS, JJ., concur.

      . The August 31, 2009, order, although rendered postjudgment, addressed matters that were pending prior to the rendition of the final judgment.


author: NORTHCUTT, Judge.

text:
    Raul F. NODAL, M.D., Appellant, v. INFINITY AUTO INSURANCE CO. f/k/a Leader Insurance Co., Appellee. Perez Personal Injury Clinic, Appellant, v. Infinity Auto Insurance Co., f/k/a Leader Insurance Co., Appellee.
    Nos. 2D09-1106, 2D09-1129.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2010.

      Kimberly P. Simoes of The Simoes Law Group, P.A., Daytona Beach, and Shannon McLin Carlyle of the Carlyle Appellate Law Firm, The Villages, for Appellant Raul F. Nodal, M.D.
    Crystal L. Eiffert and Chad A. Barr of Eiffert & Associate, P.A., Orlando, for Appellant Perez Personal Injury Clinic.
    Betsy E. Gallagher and Amy L. Miles of Kubicki, Draper, Tampa, for Appellee.
   NORTHCUTT, Judge.

Infinity Auto Insurance Company sued Raul Nodal and Perez Personal Injury Clinic (PPIC) seeking damages under various tort theories, including civil theft. Eventually Infinity dismissed its complaint without prejudice. The narrow issue presented in these appeals is whether Nodal and PPIC are entitled to recover the attorney’s fees and costs they expended in defense of the suit. The circuit court concluded that they were not. We disagree, and we reverse and remand for further proceedings.

Nodal, a physician, was employed at PPIC in 2006 and treated a patient who had suffered injuries in two separate motor vehicle accidents, one in March 2006 and the other in April 2006. Infinity, the patient’s Personal Injury Protection insurer, paid the bills that Nodal and PPIC submitted for the patient’s medical care from March through July of 2006.

In August 2006, Infinity sent these bills to Pyramed, Inc., a medical coding service, apparently for the purpose of determining whether the procedure codes Nodal and PPIC used to describe the patient’s treatment were appropriate. A certified professional coder, Connie Coleman, reported that the bills contained coding errors that might reflect double billing for the same procedure, billing for services not given to the patient, and “upcoding and unbun-dling.” Coleman opined that the codes submitted on the bills were not supported by sufficient documentation. But her report cautioned that “no inference is implied as to whether or not the coding error was the result of innocent oversight, failure to document services rendered, intentional misconduct, or a systematic scheme to defraud. Clinical correlation may be necessary to determine the source of the coding error.”

Infinity sued Nodal and PPIC, asserting, among others, causes of action based on civil theft, § 772.11, Fla. Stat. (2006); unjust enrichment; conversion; and fraud. The original complaint referred to section 627.736, Florida Statutes (2006) (the PIP statute), part of the Florida Motor Vehicle No Fault law. The complaint explained that under this law, an insurer is not obligated to pay for any service that was not lawful or that had been upcoded or unbundled. See § 627.736(5)(b)(l)(b), (e). In response to interrogatories, Infinity disclosed that the sole basis for its claims was Coleman’s report.

Nodal and PPIC moved to dismiss the complaint for several reasons, including that Infinity’s tort claims were barred because they were based on a contract, i.e., they arose from the insurance contract between Infinity and the patient. The circuit court granted their motions, noting that Infinity must plead ultimate facts outside the PIP statute in order to maintain a cause of action.

Infinity filed an amended complaint that essentially contained the same causes of action based on the same facts as the original complaint, but it omitted all references to section 627.726. In the meantime, Infinity retained Dr. Joel Grossman, a certified medical audit specialist and certified professional coder for a “peer review.” It is unclear exactly what he reviewed, but he opined that medical documentation did not support the codes for the treatment Nodal and PPIC rendered to Infinity’s insured.

Nodal and PPIC again moved to dismiss Infinity’s amended complaint for failure to state a cause of action. On the day scheduled for a hearing on the motions, Infinity voluntarily dismissed its amended complaint without prejudice. Both Nodal and PPIC then filed motions for attorney’s fees under sections 627.428, 627.736, and 772.11. The circuit court denied their requests under all the statutes. We affirm the court’s denial of fees under chapter 627 without further discussion. But we reverse the court’s decision to deny section 772.11 fees and remand with directions to award Nodal and PPIC their reasonable fees and costs.

Section 772.11(1) provides that a defendant in a civil theft action “is entitled to recover reasonable attorney’s fees and court costs in the trial and appellate courts upon a finding that the claimant raised a claim that was without substantial fact or legal support.” This court has previously held that the standard for an attorney’s fees award under that statute is less stringent than the standard under section 57.105, Florida Statutes (2006). See Ciaramello v. D’Ambra, 613 So.2d 1324, 1325 (Fla. 2d DCA 1991). In this case, the circuit court ruled that “[tjhere is nothing in the record to date upon which a finding can be made that the underlying claims filed by [Infinity] were without substantial fact or legal support.”

But in fact there was evidence in the record on this very issue. Nodal and PPIC filed documents to support their motions, and Infinity filed evidence in opposition. The record evidence included Infinity’s responses to discovery requests, which confirmed that the sole basis of its claim was the report of Pyramed’s coder, Coleman. That report contained the previously mentioned caveat that no inferences of intentional misconduct or fraud could be drawn from the alleged miscoding. The record also contained Dr. Grossman’s report, which opined that the defendants had miscoded certain procedures and that their charges for physical therapy were “grossly excessive.”

These reports might have supported a claim to recover the sums paid to Nodal and PPIC under the PIP policy and section 627.736, had Infinity filed such an action. See § 627.736(4)(b) (providing that an insurer can challenge a claim as unrelated, not medically necessary, unreasonable, or in excess of the permitted charge “at any time, including after payment of the claim.”) But, standing alone, they simply did not support a required element of Infinity’s civil theft claim — that Nodal and PPIC acted with a criminal intent to deprive Infinity of property. See Standard Jury Instructions — Civil Cases (No. 98-3), 720 So.2d 1077 (Fla.1998). To the contrary, one of the reports expressly cautioned against making that leap.

A determination of a claim’s substantial fact or legal support can be made after a plaintiffs voluntary dismissal of a civil theft claim. See Tangerine Bay Co. v. Derby Road Invs., 664 So.2d 1045 (Fla. 2d DCA 1995). If, as here, a plaintiff chooses to voluntarily dismiss its suit at a point when no record evidence supports the factual or legal basis for its civil theft claim, then a defendant is entitled to recover attorney’s fees and costs expended in challenging the action. Accordingly, we reverse the circuit court’s denial of Nodal’s and PPIC’s motions for fees and costs pursuant to section 772.11 and remand for the court to determine the amount to be awarded.

Reversed and remanded.

WHATLEY and LaROSE, JJ., concur.

      . "Upcoding” means an action that submits a billing code that would result in payment greater in amount than would be paid using a billing code that accurately describes the services performed. § 627.732(14), Fla. Stat. (2006).

      . "Unbundling” means an action that submits a billing code that is properly billed under one billing code, but that has been separated into two or more billing codes, and would result in payment greater in amount than would be paid using one billing code. § 627.732(15).


text:
    Martha J. BROADBENT, as Guardian of the Person and Estate of Roscoe J. Eller, Appellant, v. Joann THOMPSON, Appellee.
    No. 2D09-62.
    District Court of Appeal of Florida, Second District.
    Dec. 17, 2010.

      Jacqulyn Mack of The Mack Law Firm Chartered, Englewood, for Appellant.
    Glenn N. Siegel and Michael F. Savage of Glenn N. Siegel, P.A., Port Charlotte, for Appellee.
   NORTHCUTT, Judge.

In July 2000, Martha Broadbent filed suit in Charlotte County against her sister, Joann Thompson, to resolve a dispute over property owned by their father. The case was still lingering in December 2008, when the circuit court dismissed it for lack of prosecution. See Fla. R. Civ. P. 1.420(e). No one disputes that there was no record activity in the case that would defeat the dismissal. See Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005). The dispositive issue is whether Broadbent established good cause for her failure to act. Under the unusual circumstances of this case, we conclude that the circuit court abused its discretion in holding that she did not. We reverse and remand for further proceedings.

Broadbent was appointed guardian of her father, Roscoe Eller, by a court in Illinois, where her father lived. She brought the Charlotte County suit in that capacity. The parties mediated their differences in 2003 and reached a settlement. Their agreement required that the settlement be approved by the Illinois guardianship court. Broadbent applied for approval. The Illinois court held a hearing on her application, during which she vacillated about whether she agreed with the settlement terms. For reasons not apparent in this record, the Illinois court never entered an order either approving or disapproving the settlement. Mr. Eller died in 2004. His death effectively ended Broad-bent’s tenure as guardian and the guardianship court’s authority over his property. Subsequently, in July 2005 the Illinois probate court appointed Thompson as the personal representative of Mr. Eller’s estate.

In the meantime, in early 2005 the circuit court in Charlotte County had sent the parties a notice that it would dismiss the suit for lack of prosecution unless good cause was shown. Both Broadbent and Thompson filed pleadings requesting that the case remain pending based on the settlement agreement and the fact that the Illinois court had not yet approved it. In February 2005, the circuit court noted on the docket that the ease should “remain pending.” But the court dismissed the case in March 2006.

Broadbent moved to set aside that dismissal in January 2007, again stating that the parties had settled their dispute but that the Illinois court had still not approved the agreement. After holding a hearing, the circuit court set aside the dismissal and stated that the “action shall remain open and pending until the Illinois Court approves or disapproves the mediated Settlement Agreement.”

Then, in April 2008, Thompson served a notice of her intent to file a motion to dismiss the case for lack of prosecution. See Fla. R. Civ. P. 1.420(f). No record activity occurred after the filing of the notice, and Thompson subsequently moved to dismiss. Broadbent filed a response to that motion, again setting out the facts of the mediated settlement agreement and the Illinois court’s failure to approve or disapprove it. She also noted that Thompson was the executor of Mr. Eller’s estate and that accordingly she was the proper party to obtain the probate court’s approval of the agreement. Broadbent asserted that Thompson’s failure to seek approval of the agreement in Illinois should not be rewarded with the dismissal of the Charlotte County case. The circuit court held a hearing, determined that Broadbent had not shown good cause to avoid the dismissal, and dismissed the case.

We review the circuit court’s decision that good cause has or has not been shown for an abuse of discretion. Seabury v. Cheminova, Inc., 868 So.2d 625, 628 (Fla. 2d DCA 2004). As the Seabury court noted, the pendency of another suit can provide good cause for not proceeding in the action subject to dismissal. Id. at 627-28. It discussed Insua v. Chantres, 665 So.2d 288 (Fla. 3d DCA 1995), in which a related case prevented the dormant action from going forward. Insua had sued Chantres for damages. Chantres was in-súred by Travelers Indemnity Company. At Travelers’ instance, Insua and Chantres agreed to postpone their suit pending the resolution of Travelers’ declaratory actions to determine the extent of coverage. But during the pendency of Travelers’ suits, the circuit court dismissed the Insua-Chantres action for failure to prosecute. Insua moved to vacate the dismissal but the circuit court denied that motion, an action that the Third District characterized as “plain error.” Id. at 289.

We likewise determine that the circuit court erred in dismissing Broadbent’s Charlotte County suit, particularly in the face of the prior order declaring that the case would remain pending until the Illinois court approved or disapproved the mediated settlement. At this point, the ball is apparently in Thompson’s court; as personal representative of Mr. Eller’s estate, she has responsibility to seek approval of the settlement in Illinois. Broadbent cannot move forward in Florida until that approval is given or denied.

Still, we wholly agree with the circuit court that this case has tarried far too long on its docket. Perhaps the circuit court may wish to order Thompson to seek approval of the settlement in Illinois within a given time period. If Thompson fails to do so, the court could set aside the settlement and permit Broadbent to move forward with her suit. But this is merely a suggestion. We leave it to the able circuit judge to fashion a mechanism that will ensure that this case moves forward.

Reversed and remanded.

DAVIS and LaROSE, JJ., Concur.

      . Broadbent filed the affidavit of an Illinois lawyer in connection with her response to the motion to dismiss. The affidavit reflects that an Illinois court has appointed Broadbent as a Special Administrator of the Estate of Roscoe' Eller for the purpose of prosecuting the claim against Thompson in Charlotte County.


author: COHEN, J.

text:
    Sandra A. GERALI, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3013.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.
    James S. Purdy, Public Defender, and Peter A. Ames, Sr., Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Sandra Gerali appeals the judgment and sentence following a finding that she violated her probation. Gerali was placed on probation for a plethora of crimes ranging from uttering a forged instrument to organized fraud. Pursuant to a plea bargain, she was sentenced to a total of ten years in the Department of Corrections, suspended upon successfully completing five years of supervised probation.

Within a month of being sentenced, Gerali failed a random drug screen administered by her probation officer and admitted using cocaine. The trial court approved her probation officer’s recommendation of continued probation. Soon thereafter, Gerali was arrested for driving while her license was suspended or revoked. This time the probation officer filed an affidavit alleging a violation of probation.

A violation of probation hearing was conducted at which the State presented the testimony of two witnesses. The first was the officer who observed Gerali driving and also identified a certified copy of her driver’s license which reflected her license suspension. The officer also testified that Gerali admitted being aware of the suspension. The record of the driver’s license was admitted into evidence without objection. The second witness was Gera-li’s probation officer, who testified she was informed of her probation conditions, in-eluding the requirement of no new law violations. The State then rested.

The trial court, without objection, swore Gerali in and began asking a series of questions. Specifically, it asked Gerali whether she had a suspended license; she responded, ‘Tes, sir.” The trial court also asked how many names Gerali used. Ger-ali’s reply of, “Three,” evoked a response from the State relating to the use of at least one other name, that of Gerali’s sister, which formed the basis of the charges for which probation was imposed. The trial court then asked Gerali whether she had any reason to be driving. Gerali responded that she had several family issues and was trying to get to her father’s home.

During this questioning, Gerali was never informed of her Fifth Amendment right against self-incrimination relating to the DWLS charge, Perry v. State, 778 So.2d 1072 (Fla. 5th DCA 2001), and her counsel did not object to the trial court’s questioning. The trial court found Gerali in violation of her probation, specifically condition five, and imposed a five-year prison sentence. The trial court awarded credit for time served “(s)ince violation of probation arrest only. So she gets credit for time served from the VOP arrest.” This appeal followed.

Gerali raises two issues on appeal. She contends the trial court committed fundamental error when it abandoned its role as impartial magistrate and erred in failing to award full credit for time served. We affirm in part and reverse in part.

All parties who appear before a court, including probationers, are entitled to a proceeding “presided over with cold neutrality by an impartial judge, particularly when the judge also acts as the finder of fact.” Sears v. State, 889 So.2d 956 (Fla. 5th DCA 2004). This fundamental precept does not foreclose a trial judge from asking questions to ascertain the truth or to clarify issues. There is no bright-line test to determine when a judge crosses the line and departs from the role of impartial magistrate. The question is fact-intensive, and its resolution dependent upon the circumstances of each case. Because Gerali did not object to the trial court’s questioning, the issue becomes one of fundamental error. See Mathew v. State, 887 So.2d 1167, 1170 (Fla. 4th DCA 2008).

A judge should not appear to take on the role of a prosecutor. In Poe v. State, 746 So.2d 1211 (Fla. 5th DCA 1999), the trial judge questioned all of the witnesses and the witnesses for the State were questioned in greater depth than those for the defense. The court found, “The intense and sustained questioning by the court overshadowed the court’s stated purpose of uncovering the truth; rather, the court appeared to take on the role of co-prosecutor.” See also Cagle v. State, 821 So.2d 443 (Fla. 2d DCA 2002).

Likewise, in Sears, 889 So.2d 956, this court reversed a violation of probation where a trial judge conducted the majority of the questioning of the probation officer and neither counsel was given a chance to examine the witness. Observing that while a trial judge should not be compelled to act out of confusion or a misapprehension of the facts, we found the trial judge had “crossed the line of neutrality and impartiality, and as a result, [the probationer] did not receive a fair and impartial violation of probation hearing.” Id. at 959.

Gerali argues that McFadden v. State, 732 So.2d 1180 (Fla. 4th DCA 1999), requires reversal. There, the prosecutor called a single witness to establish a violation of probation. Without identifying the defendant or establishing that the defendant was advised of the conditions of his probation, the State rested. The defendant moved to dismiss the violation of probation. The trial judge asked the State whether it wanted to reopen its case and suggested lines of inquiry to fill in the rather large gaps in the State’s case. The prosecutor seized upon this second opportunity. After additional questioning, the prosecutor again failed to establish a violation of probation and the defense again moved for dismissal of the charges. This time the trial judge left nothing to chance, cross-examining the probation officer and questioning the defendant. After the defendant testified that he left the state under duress, the trial judge assisted in impeaching that testimony.

Acknowledging that there was substantial evidence to support a finding of violation of probation, the district court ordered a new violation hearing, stating, or more precisely, understating:

We cannot escape a settled feeling that the trial judge went too far in assisting an unprepared state attorney to establish the VOP. Simply stated, the trial judge’s conduct crossed the line of ostensible neutrality and impartiality and operated to deny the defendant essential due process by depriving him of the appearance of an unbiased magistrate and an impartial trier of fact.

Id. at 1183.

In the case at bar, the most troubling conduct of the trial court was the questioning of Gerali. It is certainly preferable that a judge presiding over a violation of probation hearing not sua sponte call witnesses, particularly when that witness has a Fifth Amendment right against self-incrimination in light of the new substantive violation. It is unclear in the violation of probation order whether the trial judge relied upon that testimony to find Gerali admitted driving on a suspended license, or whether he relied on the arresting officer’s testimony. In any event, the State established a prima facie violation of probation before the trial court interjected by calling Gerali as a witness. The trial court did not supply any missing elements, orchestrate prosecutorial strategy, direct evidence gathering on essential issues or demonstrate a bias, either on behalf of the State or against Gerali. See Turner v. State, 745 So.2d 456 (Fla. 4th DCA 1999). While the trial court should have inquired whether the defense wished to present a case before fleshing out whether there were mitigating factors to Gerali’s decision to drive, the trial judge apparently accepted Gerali’s explanation, and rather than simply impose the suspended sentence, halved it. We do not find that Gerali was denied a fair hearing or that the trial court committed fundamental error.

Turning to the credit for time served issue, we find Gerali’s position has merit. She was entitled to receive credit for all days served prior to the imposition of the original sentence, as well as the credit for time served following her arrest on the violation of probation. See Briggs v. State, 929 So.2d 1151 (Fla. 5th DCA 2006). The record before us is inadequate to make that determination, and thus we remand for the proper determination of credit for time served.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

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

      . Gerali pled to a total of fifteen third-degree felonies.

      . The record is silent as to whether the driving while license suspended charge was still pending. We infer that it was because no judgment and sentence for this charge was introduced.

      . The State’s answer brief does not argue preservation of error.

      . A motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) was filed seeking credit for all time served, including time served on the original arrest. No written order was filed within sixty days of the filing of the motion and it is deemed denied. Fla. R.Crim. P. 3.800(b)(1)(B), (b)(2)(B).

      . The mandate, not just to appear impartial, but to be impartial, is codified in Canon 2 of the Code of Judicial Conduct, which requires judges to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

      . A reversal of the violation of probation could subject Gerali to a potentially longer sentence than that imposed.


author: JACOBUS, J.

text:
    STATE of Florida, Appellant, v. Sheldon Lamar BANKS, Appellee.
    No. 5D09-1826.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellee.
   JACOBUS, J.

This is an appeal by the State of Florida from the trial court’s order granting the discharge of defendant Sheldon Banks based on violations of the speedy trial rule. We reverse in part.

On May 21, 2007, four men burglarized Al’s Army & Navy Store, stealing several guns. On May 29, 2007, one of the stolen guns, a .40 caliber Smith & Wesson handgun, was discovered under the driver’s seat of an abandoned vehicle. The gun’s serial number had been partially scratched off. The vehicle belonged to Sheldon Banks. Around the same time the car was found, Banks reported it stolen. On July 12, 2007, Banks was arrested in an unrelated case. He waived his Miranda rights and agreed to answer questions regarding the gun found in his car. Banks claimed he had purchased the gun for $200 about a week before he reported his vehicle stolen. He said he knew the gun had been stolen from Al’s Army & Navy Store and knew it was wrong to buy it. Banks was charged in Case No. 2007-CF-010485 with dealing in stolen property and possession of a firearm with an altered serial number. He pled nolo contendere and was sentenced to time-served followed by 24 months’ probation. The speedy trial time for the offenses in the 2007 case . expired in January 2008.

At the time of his arrest in July 2007, Banks denied any participation in the burglary of Al’s Army & Navy Store. There was no evidence connecting him to that crime until late 2008, when the sole burglary defendant finally informed on the other men who were involved. In January 2009, Banks was charged as a co-defendant in the multi-count burglary case, Case No. 2008-CF-018564. Banks filed a motion for discharge, claiming his speedy trial rights were violated by the charges in the new burglary case because they arose out of the same criminal episode as the charges in the 2007 case. The trial court agreed and granted the motion. We conclude that the charges against Banks in the 2008 burglary case, with the exception of Count 11, did not arise out of the same criminal episode as the charges in the 2007 case. Therefore, speedy trial was not violated and discharge was not warranted in the 2008 case, except as to Count 11.

The speedy trial rule is embodied in Florida Rule of Criminal Procedure 3.191, which generally requires that every person charged with a felony be brought to trial within 175 days of arrest. The time period established by the rule “commence[s] when the person is taken into custody as defined under subsection (d).” Fla. R.Crim. P. 3.191(a). Subsection (d) states in relevant part that a person is taken into custody when he or she “is arrested as a result of the conduct or criminal episode that gave rise to the crime charged.... ” Fla. R.Crim. P. 3.191(d). At issue here is what these phrases mean and how they apply under the circumstances of this case.

In Thomas v. State, 374 So.2d 508 (Fla.1979), the supreme court interpreted and applied the speedy trial rule in a situation analogous to the present case and found no violation. The defendant in Thomas was arrested in January 1976 for receiving and concealing several items of stolen property. The items had been stolen earlier that month during a home invasion robbery in which the masked perpetrator had also murdered one victim and sexually battered another. The defendant was not charged with those crimes until almost a year later. He was subsequently convicted and sentenced to death. On appeal, the supreme court rejected the defendant’s argument that discharge was warranted for violation of the speedy trial rule. The court acknowledged that the item that triggered the stolen property charge did link the defendant to the murder and related crimes. Even so, the court concluded that when the defendant was arrested on the stolen property charge, he was not “taken into custody” on the murder-related charges. The speedy trial time therefore did not commence until the defendant was indicted in the murder case. In reaching this conclusion, the court found it significant that there was no probable cause to charge the defendant with the murder-related crimes at the time of his arrest for the stolen property offense. The inference from Thomas is that the court did not deem the stolen property offense to be part of the same criminal episode as the murder and robbery offenses.

Regarding the meaning and significance of the term “criminal episode,” this court has explained:

The time period [for speedy trial] begins to run when the defendant is arrested for the crime or issued a notice to appear. Under certain limited circumstances, however, the right to a speedy trial can commence to run on uncharged crimes if the uncharged crimes are part of the same “criminal episode” as the charged crimes. Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences.

Clevenger v. State, 967 So.2d 1039, 1041 (Fla. 5th DCA 2007) (citations omitted). The defendant in Clevenger was charged with misdemeanor battery on three separate victims. Many months after the disposition of the misdemeanors, the defendant was charged with the murder of a fourth victim, who was fatally injured during the same altercation that gave rise to the misdemeanors involving the other victims. This court concluded that the murder charge did not arise from the same criminal episode as the misdemeanors because a different victim was involved. Accordingly, we held that the later murder charge did not violate the speedy trial rule.

In our earlier decision in State v. Hanna, 858 So.2d 1248 (Fla. 5th DCA 2003), we made two additional observations on the criminal episode topic:

First, generally, when crimes occur on different days, not as a part of one uninterrupted event, they are not part of the same criminal episode, even when they are related. Under these circumstances, the temporal separation evinces separate crimes with a separate criminal intent existing for each crime. Our second observation is that, even when the temporal separation is not significant, when different crimes are involved, they are not deemed a part of the same criminal episode unless they are based on substantially the same acts.

Id. at 1250 (citations omitted). In Hanna, the defendant was charged with several counts involving certain unlicensed activities. Although the offenses were all related, we concluded they did not arise from the same criminal episode for speedy trial purposes because they involved distinct criminal acts that occurred on different dates.

Applying the principles from Thomas, Clevenger, and Hanna to the present case, it is apparent that the charges against Banks in the 2008 case did not arise from the same criminal episode as the charges in the 2007 case, even though the cases were related. The charges in the 2007 case arose from Banks’ constructive possession on May 29, 2007, of a .40 caliber Smith & Wesson handgun, which he knew was stolen and which had an altered serial number. The charges in the 2008 case arose from Banks’ participation in the burglary of Al’s Army & Navy Store, which occurred on May 21, 2007. With the exception of Count 11, the grand theft charges in the 2008 case all involved different guns than the one at issue in the 2007 case. The police lacked probable cause to charge Banks with the burglary-related offenses until a co-defendant informed on him.

Under these circumstances, we conclude that the charges in the 2008 case arose from a distinct criminal episode. The exception is Count 11, which charged Banks with grand theft of the same .40 caliber Smith & Wesson handgun he was charged with possessing as stolen property in the 2007 case. Thus, with the exception of Count 11, the charges against Banks in the 2008 case did not violate the speedy trial rule and should not have been discharged. The order granting discharge is therefore reversed, except as to Count 11, and the cause is remanded for further proceedings consistent with this opinion. We affirm the discharge of Count 11 as to Banks.

AFFIRMED in part; REVERSED in part and REMANDED.

MONACO, C.J. and PALMER, J., concur.


author: EVANDER, J.

text:
    Shirley VESTAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-4045.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.

      James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   EVANDER, J.

Shirley Vestal appeals her convictions for burglary of a dwelling and grand theft. We reverse because the trial court sentenced Vestal without first conducting a competency hearing even though the procedure for determining competency under Florida Rule of Criminal Procedure 3.210 had been invoked.

The chronology of events in this case is somewhat unique. Three days prior to the scheduled trial date, defense counsel filed a suggestion of mental incompetence to stand trial on behalf of Vestal. On the scheduled trial date, Vestal withdrew her not guilty plea and entered a no contest plea to the burglary and grand theft charges. (It does not appear from the record that counsel ever made the trial court aware of the filing of the suggestion of mental incompetence.) Two weeks after accepting Vestal’s plea, the trial court entered an order appointing an expert to examine Vestal to determine if she was competent to proceed. For reasons unclear from the record, the sentencing proceeding subsequently took place although no report had been submitted by the appointed expert.

On appeal, Vestal contends that the trial court erred by conducting her plea and sentencing proceedings without holding a competency hearing. We lack jurisdiction to consider Vestal’s argument with regard to the plea proceeding because Vestal did not file a motion to withdraw her plea with the trial court. See Fla. R. App. P. 9.140(b)(2)(A)(ii)c.; see also Hicks v. State, 915 So.2d 740 (Fla. 5th DCA 2005) (defendant’s alleged incompetency at the time of entry of guilty or no contest plea is issue bearing upon voluntariness of defendant’s plea and may not be raised on appeal where no motion to withdraw plea has been filed with trial court).

However, we agree with Vestal that the trial court erred in proceeding with Vestal’s sentencing hearing. In the present case, the trial court entered a written order invoking the competency proceedings set forth in Florida Rule of Criminal Procedure 3.210. In its order, the trial court expressly determined that a mental examination of Vestal was necessary to determine if she was competent to proceed. Having reached this conclusion, the trial court was required to follow the prescribed procedure and hold a competency hearing. See Carrion v. State, 859 So.2d 563 (Fla. 5th DCA 2003); see also Maxwell v. State, 974 So.2d 505 (Fla. 5th DCA 2008); Cochran v. State, 925 So.2d 370 (Fla. 5th DCA 2006).

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ„ concur.

      . Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)c. provides:
      (b) Appeals by Defendant.

      (2) Guilty or Nolo Contendere Pleas.

      (A) Pleas. A defendant may not appeal from a guilty or nolo contendere plea except as follows:

      (ii) Appeals Otherwise Allowed. A defendant who pleads guilty or nolo contendere may otherwise directly appeal ...

      c. an involuntary plea, if preserved by a motion to withdraw plea ....
      (Emphasis added.)

      . Florida Rule of Criminal Procedure 3.210(a) provides that "[a] person accused of an offense or a violation of probation or community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.” An individual adjudicated incompetent is presumed to remain incompetent until and unless adjudicated competent again after a hearing. Samson v. State, 853 So.2d 1116 (Fla. 4th DCA 2003). Thus, had Vestal been adjudicated incompetent prior to the entry of the plea, the competency issue would have been cognizable on direct appeal without a motion to withdraw plea. Id.; see also Blackmon v. State, 23 So.3d 239 (Fla. 4th DCA 2009).


text:
    Mariann C. HUDSON-McCANN, Appellant, v. Laurence L. McCANN, Appellee.
    No. 5D09-4019.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.

      James R. Dressier, Cocoa Beach, for Appellant.
    No Appearance for Appellee.
   EVANDER, J.

Mariann Hudson-McCann appeals from an amended final judgment ordering her to pay child support and denying her request for attorney’s fees. The amended final judgment was entered after this court reversed the original final judgment. See Hudson-McCann v. McCann, 8 So.3d 1228 (Fla. 5th DCA 2009). Unfortunately, we must also reverse the amended final judgment and remand for further proceedings.

The parties were married for eleven years prior to the filing of the petition for dissolution of marriage. One child was born of the marriage. In its original final judgment, the trial court awarded primary residential custody of the child to the father, ordered him to pay the former wife $1,200 per month alimony for one year, and set the former wife’s child support obligation at $589.48 per month. In calculating child support, the trial court imputed income of $2,000 per month to the former wife.

On appeal, this court affirmed the trial court’s designation of the father as the primary residential parent. However, we reversed the child support order, concluding that the imputed income amount was not supported by competent, substantial evidence. McCann, 8 So.3d at 1280. There was no evidence presented that the former wife had ever earned $2,000 per month, nor was there any evidence presented regarding the prevailing wages in the community for someone with the former wife’s qualifications and background. Id.

On remand, the trial court did not conduct a new evidentiary hearing. Rather, the trial court entered an amended final judgment, lowering the child support obligation to $471.23 per month. The reduced child support amount was based on an imputation of $1,368.50 per month income to the former wife. Because the child had resided primarily with the mother during the pendency of the appeal and the remand proceedings, the trial court ordered child support payments to commence as soon as the child began to reside with the former husband. The same day the trial court entered the amended final judgment, an order was entered requiring transfer of primary residential care of the child to the father.

The decision whether to impute income in determining a child support obligation is within the trial court’s discretion and will not be reversed absent an abuse of discretion. Guard v. Guard, 993 So.2d 1086, 1089 (Fla. 5th DCA 2008). The imputation of income will be affirmed if supported by competent, substantial evidence. Id. In the instant case, the evidence presented during the original trial reflected that the former wife had worked many years during the marriage as a certified nursing assistant or a home-health aide. The amount of income imputed to the former wife, after remand, was consistent with the income she earned in 2005—the year in which the petition for dissolution was filed. Furthermore, there was competent, substantial evidence to support the trial court’s findings (made in the amended final judgment) that the former wife had recovered from certain medical conditions that had arisen subsequent to the filing of the petition for dissolution of marriage and that she had failed to test the job market after her recovery. We find no error in the determination of the amount of income to be imputed to the former wife.

However, the amended final judgment still contains an error in the calculation of child support. In determining the parties’ respective net incomes, the trial court improperly took into consideration the former husband’s $1,200 per month alimony obligation. This alimony obligation was to terminate in August 2008-long before the entry of the amended final judgment. While the record before us suggests that the former husband has not fully .complied with his alimony obligation, any failure to do so should be remedied by an order establishing an arrearage and providing for payment of same. The former husband’s alimony obligation should not have been considered in setting a revised child support amount after our prior remand.

Finally, we find no error in the trial court’s denial of the former wife’s request for attorney’s fees incurred at the trial level.

REVERSED and REMANDED.

COHEN, J., and FLEMING, J.M., Associate Judge, concur.

      . The trial court's award of alimony in the original final judgment was not a subject of the prior appeal.


text:
    Sylvette BARRETO, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3568.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2010.
    F. Wesley Blankner, Jr., of Jaeger & Blankner, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Sylvette Barreto entered no contest pleas to two counts of sexual battery on a child over the age of twelve by a person in familial or custodial authority. On appeal, she contends that her plea was involuntary because she was under the influence of prescription medication at the time of the plea. We affirm.

We begin our discussion by observing that F. Wesley Blankner, Jr., Barreto’s appellate counsel, also served as her trial counsel. Counsel requested and was given three time extensions to prepare the initial brief. Despite the generous time allotted, the entire argument put forth by counsel in Barreto’s brief reads:

The Court committed error by accepting an involuntary plea. The Appellant informed the Court that she had recently taken prescription medication. When asked whether these medications affected her ability to think clearly and exercise good judgment, the Appellant replied that they made her “cloudy, tired” and “sleepy”.
At that point, the plea colloquy should have stopped and the case should have been reset. The Appellant had just said that her medication clouded her judgment. It makes no sense to elicit her opinion regarding her mental state when she had just told the Court that the medication clouds her judgment.
The assurances provided by the Appellant that her mental state was clear were “equivocal and contradictory” Schenck v. State, 654 So.2d 593 (Fla. 4th DCA 1995); see Hull v. State, 601 So.2d 641 (Fla. 2d DCA 1992).
The Appellant’s statements contradict also the written plea form, which states “I am not under the influence of alcohol or any drug at this time.” Szeremi v. State, 862 So.2d 935 (Fla. 2d DCA 2004).

(Internal record citation omitted).

Counsel did not file a motion to withdraw the plea with the trial court. The failure to file a timely motion to withdraw plea waives appellate review of issues related to the plea. Dayton v. State, 867 So.2d 647 (Fla. 5th DCA 2004); Gafford v. State, 783 So.2d 1191 (Fla. 1st DCA 2001); Fla. R. App. P. 9.140(b)(2)(A)(ii)c. (providing that “[a] defendant who pleads guilty or nolo contendere may otherwise directly appeal only ... an involuntary plea, if preserved by a motion to withdraw plea”). This well-established rule of law is not mentioned in the initial brief.

More fundamentally, we are troubled that counsel, an officer of the court, would participate without comment or objection in what he now suggests was a faulty plea process. Counsel, along with his client, signed the plea agreement that assured the court that Barreto did “not suffer from any physical or mental disabilities to the degree that I [Barreto] am incapable of understanding this agreement, the nature of the proceeding against me, or assisting my lawyer in my behalf. I am not under the influence of alcohol or any drug at this time.” Likewise, during the plea colloquy, counsel never expressed any concern regarding his client’s ability to enter the plea. If counsel had any notion that Bar-reto was under the influence of prescription medication to the extent that she could not voluntarily and knowledgably enter a plea, he was obliged to alert the trial court. And now, with no preserved error (and likely no error at all) and after three extensions of time, we receive a wholly unhelpful brief. This appeal was a waste of this Court’s time and Barreto’s money.

AFFIRMED.

SAWAYA, ORFINGER and JACOBUS, JJ., concur.