author: GROSS, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES and The Florida Commissioner of Agriculture, Appellants, v. David MENDEZ, Lillian Mendez, Toby Bogorff, Robert Bogorff, Beth Garcia, Ronald Garcia, Robert Pearce, Barbara Pearce, and Timothy Donald Farley, on behalf of themselves and the certified Class of Broward County homeowners, Appellees.
    Nos. 4D11-4644, 4D12-196.
    District Court of Appeal of Florida, Fourth District.
    July 25, 2012.

      Wesley R..Parsons and Karen H. Curtis of Clarke Silverglate, P.A., Miami, for appellants.
    Jamie Alan Cole of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.A., Fort Lauderdale, and Robert C. Gilbert of Grossman Roth, P.A., Coral Gables, for appellees.
    Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, Tallahassee, for Amicus Curiae State of Florida.
   GROSS, J.

This consolidated case concerns parallel class actions, in the Palm Beach and Bro-ward County circuit courts, over the destruction of citrus trees by the Florida Department of Agriculture and Consumer Services. Two classes, comprising affected landowners in Palm Beach County (the Mendez class) and Broward County (the Bogorff class), filed suit against the Department and its commissioner. The gravamen of the complaints was their inverse condemnation claims. In final judgments, the circuit courts found the Department liable and awarded, in the Palm Beach

action, $19,222,490.52, and in the Broward action, $8,043,541.50.

The issues in the appeal and cross-appeal of these non-final orders involve post-judgment proceedings on how, or whether, to allow the plaintiffs to execute on their judgments against a state agency. We hold that the applicable statute precludes the issuance of a writ of execution against the Department and decline to reach the constitutional issues at this time.

Palm Beach County Case

The Palm Beach County final judgment provided that “[ejxecution shall not issue on this judgment absent further order of this Court.”

The Mendez class moved for a “further order.” They made two arguments. First, the class contended that section 11.066, Florida Statutes (2000), which prohibits the execution of judgments against the State and its agencies, should be interpreted in light of a property owner’s right to receive full and just compensation for a taking, and that another statute, section 74.091, Florida Statutes (2000), serves as an exception to the prohibition in takings cases. Second, and alternatively, they argued that section 11.066 was unconstitutional as applied to takings judgments as an infringement on the power of the judiciary to determine full compensation.

The Department opposed the motion for a further order. The trial court granted the class’s motion and ordered the issuance of a writ of execution after “the conclusion of all appellate proceedings arising from” the final judgment. The court noted that neither party disputed that the Department’s taking was an exercise of the State’s police powers, making it appear that section 11.066 required the class to obtain a legislative appropriation. However, the court reasoned that the language in subsection 11.066(4) — “Notwithstanding s. 71.091, a judgment for monetary damages” (emphasis added) — created an exception to the rule precluding execution against the State and its agencies, and set out to determine whether that exception applied.

Starting its analysis, the court noted that in Florida Department of Agriculture & Consumer Services v. City of Pompano Beach, 829 So.2d 928 (Fla. 4th DCA 2002), we applied the provisions of chapter 73, the main eminent domain statute, to inverse condemnation claims. The court observed that no court had ruled on the similar applicability of chapter 74, the proceedings supplemental to eminent domain statute. After considering the State’s constitutional guaranty of full and fair compensation for takings, and that such compensation is compulsory, the trial court held that the section 74.091 exception applied, so that the class could seek execution of their judgment against the Department without going through the section 11.066 appropriations process. The court did not reach “the question of whether section 11.066 is unconstitutional.”

Broward County Case

In the Broward final judgment, the trial court stated the amount of the award, followed by the language “for which let execution issue.” The Department moved to preclude issuance of a writ of execution. The circuit court granted the Department’s motion. It “conclud[ed] that [s]ee-tions 11.066(3) and (4), Florida Statutes, govern on the issue regarding execution on the Final Judgment in this case,” and declined to follow the ruling of the Palm Beach circuit court. Instead, the court held that section 11.066 “[took] precedence over [s]ection 74.091, even in these circumstances.” The class’s remedy, the court wrote, was that provided by section 11.066 — the appropriations process. If the class went through that process and could not secure an appropriation, “this Court may permit execution to issue.” Finally, the court held that section 11.066(3) was constitutional as applied.

I

The heart of the Palm Beach order was the application of section 74.091 to allow the issuance of a writ of execution. However, chapter 74 does not apply to inverse condemnation proceedings.

Statutory interpretation is reviewed de novo. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). “The plain meaning of the statute is always the starting point in statutory interpretation,” the goal of which is to ascertain and give effect to the drafters’ intent. Id. (citing Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). When the statute is clear and unambiguous, courts will not look behind the statute’s plain language or resort to rules of construction. See Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). Where possible, a court “must give full effect to all statutory provisions and construe related provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

Section 74.091 is found in chapter 74, which involves “proceedings supplemental to eminent domain.” Section' 74.011, Florida Statutes (2000), which defines the “scope” of the chapter, provides:

In any eminent domain action, properly instituted, by and in the name of the state; the Department of Transportation; any county, school board, municipality, expressway authority, regional water supply authority, transportation authority, flood control district, or drainage or subdrainage district; the ship canal authority; any lawfully constituted housing, port, or aviation authority; the Spaceport Florida Authority; or any rural electric cooperative, telephone cooperative corporation, or public utility corporation, the petitioner may avail itself of the provisions of this chapter to take possession and title in advance of the entry of final judgment.

(Emphasis added). The provisions of chapter 74 accordingly apply only to traditional, state-initiated eminent domain actions. Neither the Broward nor Palm Beach classes were a petitioner enumerated in section 74.011.

In its order, the Palm Beach County circuit court noted that City of Pompano Beach held that chapter 73 — “Eminent Domain” — applied to inverse condemnation cases. 829 So.2d at 931. However, that case cannot be extended to control the application of chapter 74 because chapter 73 does not contain a limitation on its application similar to section 74.011.

II

Both classes argued that subsections 11.066(3) and (4), Florida Statutes (2000), are unconstitutional as applied to their cases. First, they asserted that subsections 11.066(3) and (4) unconstitutionally restrict the right of Palm Beach and Bro-ward homeowners to recover payment of full and just compensation. Second, they contended that the statutory provisions unconstitutionally interfere with the power of the judiciary. We do not reach this issue because in the Palm Beach County case the issue was not preserved, and in the Broward County case the issue was not ripe.

The Palm Beach County circuit court expressly declined to rule on the statute’s constitutionality. Unlike facial challenges to a statute, as-applied challenges are subject to the rules of preservation. Cf, e.g., Trushin v. State, 425 So.2d 1126,1129-30 (Fla.1982) (“The facial validity of a statute, including an assertion that the statute is infirm because of over-breadth, can be raised for the first time on appeal.... The constitutional application of a statute to a particular set of facts is another matter and must be raised at the trial level.”). Part of the preservation requirement is the securing of a ruling, and the Palm Beach County class has not secured one. Hamilton v. R.L. Best Int’l, 996 So.2d 233, 235 (Fla. 1st DCA 2008) (“The preservation of error requirement is not ordinarily completed until the aggrieved party has obtained a ruling on the motion or objection made in the lower tribunal.” (citation omitted)).

With respect to the Broward County class, these as-applied constitutional challenges to section 11.066 are not yet ripe. Article X, section 6(a), of the Florida Constitution provides: “No private property shall be taken except for a public purpose and with full compensation therefor paid to each owner....” The class argued that section 11.066 is unconstitutional as applied because it limits their ability to secure the full payment to which they are entitled.

However, the legislature might well appropriate the full amounts of the awards in a statute directed at some form of payment. For this reason, such as-applied constitutional challenges, resting on particular facts and claiming a denial of full compensation, are not ripe until the statute has actually been applied and resulted in a constitutional deprivation. See State v. Newman, 405 So.2d 971, 972 (Fla.1981) (holding that a defendant’s challenge to the statute criminalizing possession of cocaine was ripe “[o]nce defendant was charged under the statute”); State v. Oakley, 515 So.2d 1012 (Fla. 4th DCA 1987) (holding that a defendant’s challenge to a burden-shifting statute, contained in a pretrial motion, was not ripe “because prior to actual application of the alleged burden-shifting statute at trial, there can be no constitutional violation”); State v. Demarzo, 453 So.2d 850, 852 & 853 n. 3 (Fla. 4th DCA 1984) (where the defendant was challenging the constitutionality of a state statute “mandating suspension of a [personj’s driver’s license when a court continuance requested by the defendant delays the hearing on the suspension beyond the statutory prescribed time,” “[t]he defendant did not actually seek a continuance in the trial court so we are not presented with any issue as to the validity of the statute as applied to a particular situation.”); Grady v. Dep’t of Prof'l Regulation, Bd. of Cosmetology, 402 So.2d 438, 440 (Fla. 3d DCA 1981) (holding that an appellant’s constitutional challenges to a board’s licensing and testing procedures were not ripe for review “in the absence of an actual controversy between the parties,” as “the Board has neither tested appellant nor denied him a license”); cf. State v. Higby, 899 So.2d 1269 (Fla. 2d DCA 2005) (after reversing the dismissal of criminal charges on a facial constitutional challenge, noting that any as-applied challenge would depend on the particular facts developed below); Shands v. City of Marathon, 999 So.2d 718, 725 (Fla. 3d DCA 2008) (“An as-applied takings claim challenging the application of a land use ordinance is not ripe until the plaintiff has obtained a final decision regarding the application of the regulations to the plaintiffs property.”).

Because the Broward County class has not yet availed itself of the appropriation process contemplated by section 11.066, its as-applied constitutional challenge to the statute is not ripe for review.

We reverse that portion of the Palm Beach County order allowing execution against the Department and remand to the circuit courts for further proceedings consistent with this opinion. We also reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe.

HAZOURI and CONNER, JJ., concur.

      . Which provides in relevant part:
      (3) Neither the state nor any of its agencies shall pay or be required to pay monetary damages under the judgment of any court except pursuant to an appropriation made by law. To enforce a judgment for monetary damages against the state or a state agency, the sole remedy of the judgment creditor, if there has not otherwise been an appropriation made by law to pay the judgment, is to petition the Legislature in accordance with its rules to seek an appropriation to pay the judgment.
      (4) Notwithstanding s. 74.091, a judgment for monetary damages against the state or any of its agencies may not be enforced through execution or any common-law remedy against property of the state or its agencies, and a writ of execution therefor may not be issued against the state or its agencies. Moreover, it is a defense to an alternative writ of mandamus issued to enforce a judgment for monetary damages against the state or a state agency that there is no appropriation made by law to pay the judgment.
      § 11.066, Fla. Stat.

      . Which provides in full:
      Where an order of taking has been entered and deposit made, the failure of the petitioner to pay into the court the compensation ascertained by the jury shall not invalidate said judgment or the title of the petitioner, and such failure shall not authorize any person to molest, interfere with, enter or trespass upon said property; provided, however, persons lawfully entitled to compensation may sue out execution, in the event a timely appeal has not been filed, and such execution may be levied upon the property so condemned and any other property of the petitioner in the same manner as executions are levied in common-law actions.
      § 74.091, Fla. Stat.'


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Linwood D. BLANTON, Appellant/Cross-Appellee, v. Martha P. GODWIN and David L. Godwin, Appellees/Cross-Appellants.
    No. 2D10-1885.
    District Court of Appeal of Florida, Second District.
    Aug. 1, 2012.
    Rehearing Denied Oct. 11, 2012.

      Shannon P. McKenna and Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellant/Cross-Appellee.
    Roy D. Wasson and Annabel C. Majew-ski of Wasson & Associates, Chartered, Miami, Richard A. Bokor of Richard A. Bokor, P.A., and Susan L. Lawson of Lawson & Associates, P.A., Tampa, for Appel-lee/Cross-Appellant David L. Godwin.
    No appearance for Appellee/Cross-Ap-pellant Martha P. Godwin.
   WHATLEY, Judge.

Linwood Blanton appeals, and Martha and David Godwin cross-appeal, an order awarding David Godwin attorney’s fees for his consortium claim. We conclude that the trial court erred in awarding attorney’s fees for the consortium claim because the evidence did not establish that the fees awarded were solely related to the work done on that claim. We therefore reverse the award of attorney’s fees and remand to the trial court to award Mr. Godwin attorney’s fees for 3.3 hours. We do not find merit in the issues raised in the cross-appeal.

Martha Godwin was injured in an automobile accident when Linwood Blanton rear-ended her vehicle. She brought a personal injury claim and her husband brought a loss of consortium claim against Mr. Blanton. Mr. Godwin served Mr. Blanton with a proposal for settlement in the amount of $10,000, and after a trial, final judgment was entered in favor of Mr. Godwin in the amount of $15,000. Although Martha Godwin served Mr. Blan-ton with a proposal for settlement, the amount of the final judgment entered in her favor, $135,000, did not exceed the proposal for settlement.

Mr. Godwin moved for fees and costs based on his proposal for settlement. See § 768.79, Fla. Stat. (2007); Fla. R. Civ. P. 1.442. Originally, the trial court ruled that Mr. Godwin was only entitled to fees specifically attributable to the consortium claim, and it rejected his argument that he was entitled to attorney’s fees for 100% of the time the attorneys expended on behalf of both claims because they were inextricably intertwined. The trial court specifically found that Mr. Godwin’s attorneys had failed to present evidence of the amount of time performed on his consortium claim as opposed to his wife’s claim. The court also specifically ruled that the attorney’s argument that it was impossible to parse out time spent solely on Mr. Godwin’s claim was insufficient.

A hearing was set to determine the amount of the fee award, at which both parties presented expert witnesses. Thereafter, the trial court entered an order granting attorney’s fees to Mr. Godwin and noted that, despite its previous order, Mr. Godwin’s attorneys again asserted that they could not itemize the amount of time which was spent on the consortium claim because it was necessary to prove the allegations in the personal injury claim in order to prevail on the consortium claim. The trial court noted that as a “fail-back” position, Mr. Godwin’s expert estimated, based on anecdotal experience, that thirty-five percent of the total time expended on the case could be attributed to the consortium claim. The trial court further noted that Mr. Blanton’s expert reviewed the billing records and testified that he could only identify approximately three hours that were directly attributable to the consortium claim.

Mr. Blanton’s expert testified that apparently, even after the trial court’s first order, no effort was made by Mr. Godwin’s attorney to identify which time records could be attributed to the consortium claim. The expert reviewed the attorney’s time records and found that only 3.3 hours of work could be attributed to the consortium claim.

Despite the testimony of both experts, the trial court found that twenty-five percent of the attorneys’ time was reasonably expended on the consortium claim.

We must reverse because there was no evidence supporting this finding. The only testimony presented regarding the actual amount of time spent on the consortium claim was that of Mr. Blanton’s expert. Therefore, the trial court erred in failing to award Mr. Godwin attorney’s fees for the 3.3 hours expended on his claim.

Further, Mr. Godwin argues on cross-appeal that he should have been awarded attorney’s fees for work done in both his case and his wife’s case because the issues were so intertwined that allocation of time spent in each case was not feasible. We disagree. In Lubkey v. Compuvac Systems, Inc., 857 So.2d 966, 967 (Fla. 2d DCA 2003), Compuvac filed a complaint based on a number of theories, but prevailed on only one claim — Lubkey’s breach of a settlement agreement. However, Compuvac was awarded attorney’s fees for all their work in the case based on the theory that all the issues in the complaint were interrelated. Id. at 967-68.

This court noted that “the party seeking fees has the burden to allocate them to the issues for which fees are awardable or to show that the issues were so intertwined that allocation is not feasible.” Id. at 968. The award of fees was reversed in Lubkey because “Compuvac failed to meet its burden of proving either that all its attorneys’ fees were related to its count for breach of the settlement agreement or that the issues were so intertwined that the fees could not be allocated.” Id.

Similar to the present case, Compuvac presented an expert witness at the fee hearing who testified that all the issues in the complaint were interrelated, but he failed to explain why or whether he had attempted to apportion the time spent on the individual counts of the complaint. Id.-, see also Crown Custom Homes, Inc. v. Sabatino, 18 So.3d 738, 740 (Fla. 2d DCA 2009) (holding that expert testimony of attorney was not competent evidence that counts were intertwined where he testified that he could not allocate the attorney’s time sheet records to the various counts because they were intertwined and “to the greater extent I was not able to determine based on the billing time entries how to differentiate the various counts”). Here, Mr. Blanton’s expert testified that the time spent on the consortium claim was not allocated in the time records submitted by the attorney. For example, although there were meetings with both Mr. Godwin and his wife to go over answers to interrogatories, the attorney did not allocate how much time was spent on each party’s interrogatory, and Mr. Godwin’s attorney did not explain at the hearing why he did not do so in his time records. Instead, he asserted in his cross-examination of Mr. Blanton’s expert, “Everybody practices law differently. Some people take copious notes, and some do not, correct, sir?”

As the party moving for fees, Mr. Godwin had the burden to allocate them to his consortium claim or to show that the issues were so intertwined that allocation is not feasible. See Lubkey, 857 So.2d at 968. Mr. Godwin cannot meet that burden and be awarded with fees related to both claims on the basis that some people do not take copious notes. Further, Mr. God-win urges this court to adopt a blanket rule that consortium claims are always so intertwined with the spouse’s claim that allocation is never possible. We decline to do so and would note that if such a rule were adopted, in every case containing a consortium claim, where a defendant or one of the plaintiffs are entitled to fees for one claim, that party would automatically be able to obtain fees for work done on both cases.

Accordingly, we conclude that the trial court properly found that Mr. Godwin did not satisfy his burden of allocating his attorney’s fees to his consortium claim or of showing that the issues were so intertwined that allocation is not feasible. However, we must nevertheless reverse the award of attorney’s fees because there was no evidence presented supporting the trial court’s finding that twenty-five percent of the attorney’s time was reasonably expended on the consortium claim. We remand with directions that the trial court award Mr. Godwin attorney’s fees for 3.3 hours expended on the consortium claim.

Reversed and remanded with directions.

KELLY and MORRIS, JJ., Concur.

      . Mr. Blanton does not challenge Mr. God-win’s entitlement to fees, only the amount awarded.


author: PER CURIAM.

text:
    LIBERTY INSURANCE CORPORATION, Petitioner, v. Susan M. MILNE and Timothy P. Litersky, Respondents.
    No. 4D12-926.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.
    Nina Whiston and Mark S. Shapiro of Akerman Senterfitt, Miami, for petitioner.
    David J. Sales of David J. Sales, P.A., Jupiter, and Karen E. Terry of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for respondent Susan M. Milne.
    Joseph B. Landy of Lesser Lesser Lan-dy & Smith, PLLC, West Palm Beach, and Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, for respondent Timothy P. Litersky.
   PER CURIAM.

Liberty Insurance Corporation (Liberty) petitions for a writ of prohibition to bar the trial court from exercising further jurisdiction over a third-party complaint filed against it, and to quash the trial court’s order denying its motion to dismiss the third-party complaint. We grant the petition.

Timothy P. Litersky sued Susan M. Milne for damages for negligence in connection with a motor vehicle accident. One jury found Milne liable, following which the trial court denied her motion for new trial; then another jury found a dollar amount of damages, following which the trial court denied Litersky’s motion for new trial. The denial of the motion for new trial occurred on January 4, 2012. Prior to entry of the final judgment, Liberty, as Milne’s liability insurance carrier, was joined as a party defendant — but only for the limited purpose of the nonjoinder statute, section 627.4136, Florida Statutes.

On February 1, 2012, the trial court entered a final judgment in favor of Liter-sky. The judgment was against Liberty in the amount of its $50,000 policy limits, and provided that the amount to be recovered from Liberty and Milne together was not to exceed $1,018,535.90.

Also on February 1, 2012, Milne filed a pleading which she labeled as a crossclaim; it was against Liberty for bad faith failure to settle by failing to timely tender its policy limits to Litersky. As Liberty actually was not then a party for any purpose other than the nonjoinder statute, all parties agree the pleading properly was a third-party complaint, see Fla. R. Civ. P. 1.180(a). Liberty contends this occurred only after the final judgment was entered, and the crossclaim does appear on the court docket as having been filed of record after the final judgment was filed; however, the clerk’s date-and-time stamps indicate that the third-party complaint was filed in the morning and the judgment was filed in the afternoon on the same date. It is undisputed that Milne properly served Liberty with process by serving Florida’s chief financial officer, but that did not occur until February 10.

Liberty moved to dismiss the third-party complaint for a number of reasons, including that the trial court lacked subject matter jurisdiction over it because the pleading was filed after the trial court entered the final judgment in the case. Milne acknowledged the action against Liberty might be premature while she exhausts her appellate remedies, but asked the trial court only to abate her action while the appeal was pending, rather than dismissing it — which it did.

Liberty’s main argument at the hearing was that a trial court loses jurisdiction when the final judgment is rendered and the time to move for rehearing or new trial has passed. In this case, because the time to file those motions ran from the date of the verdict in a jury trial, Fla. R. Civ. P. 1.530(b), those time limits already had passed by the time the final judgment was entered. Once the time had run to file a motion for rehearing or new trial, all the trial court had jurisdiction to do was to enforce the judgment or alter or amend it; it did not have jurisdiction over a new claim. Liberty did not dispute Milne’s right to pursue a bad faith claim against it, but asserted she could do so only by filing a new complaint, not by filing a third-party action within the tort case, because the trial court lacked jurisdiction to entertain it within the tort case.

The trial court denied Liberty’s motion as to dismissal, but granted it as to abatement, and the instant petition for writ of prohibition followed.

“The rule is firmly established in this State that the trial Court loses jurisdiction of a cause after a judgment or final decree has been entered and the time for filing petition for rehearing or motion for new trial has expired or same has been denied.” State ex rel. Am. Home Ins. Co. v. Seay, 355 So.2d 822, 824 (Fla. 4th DCA 1978) (quoting Gen. Capital Corp. v. Tel Serv. Co., 212 So.2d 369, 382 (Fla. 2d DCA 1968), modified, 227 So.2d 667 (Fla.1969)). See generally City of Boca Raton v. Ross Hofmann Assocs., Inc., 501 So.2d 72 (Fla. 4th DCA 1987) (reversing order granting previously filed motion to amend complaint, after entry of final judgment and denial of motion for rehearing, when trial court had no authority to permit amendment); DiPaolo v. Rollins Leasing Corp., 700 So.2d 31, 32 (Fla. 5th DCA 1997) (dismissing appeal from order denying motion to amend complaint, where motion was pending at the time trial court entered summary judgment on single count of negligence and reserved jurisdiction to rule on motion to amend; after summary judgment was entered and time for filing motion for rehearing and notice of appeal expired, there remained no action pending before the trial court on which to base an amendment); Fla. Nat’l Bank v. Domanska, 486 So.2d 1384, 1385 (Fla. 3d DCA 1986) (reversing order granting plaintiffs motion to file an amended complaint adding new theories, filed along with his motion for rehearing after final judgment was entered; trial court was without jurisdiction to allow amended complaint after it denied plaintiffs motion for rehearing; final judgment could not be disturbed except on properly filed rule 1.540 motion); Jared v. Jackson, 483 So.2d 51, 52 (Fla. 4th DCA 1986) (quashing order granting motion to enforce post-judgment settlement agreement, which was entered after trial court lost jurisdiction through entry of final judgment and expiration of time for filing motion for rehearing).

At the time of the final judgment, Liberty had not been made a party to the underlying litigation (except for the limited purpose of the nonjoinder statute) in that it had not been served process at the time of the final judgment, or even by the time that the “crossclaim” was allowed. See generally Sas v. Postman, 687 So.2d 54 (Fla. 3d DCA 1997) (granting petition for writ of prohibition to preclude trial court from entering orders affecting former co-defendant, after plaintiff filed amended complaint against one defendant which dropped another defendant, the petitioner, as a party; filing amended complaint terminated proceedings against petitioner, resulting in trial court’s loss of jurisdiction over her person).

Milne’s serving a third-party complaint could not revive an underlying action that already had been concluded; any attempt to file a crossclaim or a third-party complaint or to serve process on Liberty was a nullity after the denial of the last motion for new trial. See generally Lopez v. Peter R. Brown Co., 492 So.2d 1174, 1175 (Fla. 2d DCA 1986) (where appellant filed crossclaim against codefen-dant in his initial answer, but crossclaim was not served before the original pleading was dismissed with prejudice by stipulation of the parties, holding that crossclaim did not survive voluntary dismissal; however, separate action was not precluded if cause of action still existed).

Accordingly, we grant the petition, prohibit the trial court from asserting subject matter jurisdiction over Milne’s third-party complaint against Liberty, and quash the order denying Liberty’s motion to dismiss — all, however, without prejudice to Milne’s raising the claim set forth in her “crossclaim” as a separate and independent cause of action.

Petition Granted.

MAY, C.J., POLEN and HAZOURI, JJ., concur.

      . Section 627.4136 provides for the nonjoin-der of insurers in actions in which insurance coverage exists. Subsection 627.4136(4) provides as follows:
      (4) At the time a judgment is entered or a settlement is reached during the pendency of litigation, a liability insurer may be joined as a party defendant for the purposes of entering final judgment or enforcing the settlement by the motion of any party, unless the insurer denied coverage under the provisions of s. 627.426(2) or defended under a reservation of rights pursuant to s. 627.426(2). A copy of the motion to join the insurer shall be served on the insurer by certified mail. If a judgment is reversed or remanded on appeal, the insurer’s presence shall not be disclosed to the jury in a subsequent trial.

      . Milne’s appeal of the judgment against her in the tort action is currently pending in this court. Milne, v. Litersky, No. 4D12-751.


text:
    John D. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3147.
    District Court of Appeal of Florida, First District.
    Aug. 9, 2012.
    John D. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., DAVIS and SWANSON, JJ., concur.


author: BLACK, Judge.

text:
    Ruth Marguerite ABBOTT, Appellant, v. Donald Charles ABBOTT, Appellee.
    No. 2D11-1922.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Rehearing Denied Oct. 11, 2012.

      Ruth Marguerite Abbott, pro se.
    Donald Charles Abbott, pro se.
   BLACK, Judge.

Ruth Abbott (the Mother) appeals the final judgment granting Donald Abbott’s (the Father’s) supplemental petition to modify child support and visitation. The supplemental petition sought a reduction in child support and expanded visitation privileges with the couple’s thirteen-year-old daughter, including overnight visits. The trial court granted these requests, and we affirm those rulings without further comment. Additionally, however, the court awarded the Father shared parental responsibility which was neither pleaded nor argued at the hearing on the Father’s motion. As to that issue, we reverse.

The parties were married on April 1, 1995, and divorced on October 1, 2004. The 2004 final judgment incorporated a mediated settlement agreement wherein it was agreed that the Mother would have sole parental responsibility of the parties’ minor child. At that time, the Father agreed to and was awarded supervised visitation. The agreement contemplated that visitation rights could be reevaluated in the future.

In January 2008, the Father moved to modify the final judgment seeking a reduction in child support and unsupervised visitation privileges. Following a hearing, the parties entered into a stipulated final judgment. Child support was left unaffected, but the Father’s visitation privileges were expanded to allow for unsupervised visits. Although the Father orally requested shared parental responsibility at the 2008 hearing, he did not plead it in his petition and it was not awarded.

Two years later, in September 2010, the Father petitioned to further modify the final judgment. He again sought a reduction in child support, and he also requested overnight visitation. He did not, however, plead for shared parental responsibility. On March 7, 2011, a hearing was held on the Father’s petition, and on March 21, 2011, a final judgment incorporating a parenting plan was entered. In addition to awarding the Father the requested reduction in child support and overnight visitation, the court awarded him shared parental responsibility, despite his never having pleaded for that relief. At the hearing, there was no discussion of changing parental responsibility, and no change was verbally ordered by the court.

A trial court’s order modifying parental responsibility carries a presumption of correctness and will not be disturbed absent an abuse of discretion. Wade v. Hirschman, 903 So.2d 928, 935 (Fla.2005) (citing In re Gregory, 313 So.2d 735, 738 (Fla.1975)); see Hudson-McCann v. McCann, 8 So.3d 1228, 1229 (Fla. 5th DCA 2009). “In modification proceedings, as in other civil matters, courts are not authorized to award relief not requested in the pleadings.” Nabinger v. Nabinger, 82 So.3d 1075, 1076 (Fla. 1st DCA 2011). To grant unrequested relief is an abuse of discretion, see Escobar v. Escobar, 76 So.3d 958, 961 (Fla. 4th DCA 2011), and reversible error, see Ruble v. Ruble, 884 So.2d 150, 152 (Fla. 2d DCA 2004). Here, because the Father did not plead for a change in parental responsibility and the issue was not otherwise raised at the hearing, it was error for the trial court to award him shared parental responsibility. Accordingly, we reverse that portion of the court’s order and direct that sole parental responsibility be restored to the Mother, which was previously awarded to her in the 2004 final judgment.

Affirmed in part; reversed in part; remanded.

ALTENBERND and KELLY, JJ., Concur.


author: VILLANTI, Judge.

text:
    Travis Rodriguez JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3097.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Rehearing Denied Oct. 11, 2012.
    James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Travis Rodriguez James seeks review of the revocation of his probation and the resulting sentence, arguing that the State failed to prove that he was ever properly advised that he was on probation and that therefore he could not have willfully violated his probation. Because the undisputed facts bear out this assertion, we reverse the revocation of James’s probation and remand for James to be released in this case to serve the remainder of his probationary sentence.

On June 30, 2009, James entered guilty pleas in;four separate cases. In three of those cases, he was sentenced to twenty-eight months in prison, with all of the sentences to run concurrently with each other. In the fourth case — the one at issue here — the trial court orally sentenced James to a consecutive term of five years’ probation. However, the written judgment and sentence rendered by the trial court, through a scrivener’s error, erroneously imposed the probationary sentence in this case concurrently with the prison terms.

According to James, upon his release from prison on November 25, 2010, he reported to the probation office to begin serving his probation in this case. However, at the probation office, James was told that his probation in this case had been terminated. Both James and his father testified that they were given this same information at three separate probation offices. Moreover, in a motion filed in the trial court, the State admitted that James “was never supervised due to a clerical error.” Nevertheless, on March 31, 2011, the Department of Corrections filed an affidavit alleging that James had violated his probation by committing a new offense and by failing to pay certain monetary obligations.

At the revocation hearing, despite its earlier admission that James was never supervised, the State asserted that James “knew” that he was on probation and “knew” that committing a new offense would be a violation of that probation.

However, the only evidence presented by the State to establish that James had ever been advised of the conditions of his probation was hearsay. Further, the State presented no evidence to rebut James’s testimony that he was explicitly told by employees of the Department of Corrections that his probation had been terminated. Nevertheless, the trial court revoked James’s probation based on his willful violation of its conditions. James now seeks review of that revocation.

Before a trial court may revoke a defendant’s probation, the State must prove by the preponderance of the evidence that the defendant willfully violated a substantial condition of his probation. See, e.g., Tirado v. State, 69 So.3d 1005, 1006 (Fla. 2d DCA 2011); Lynom v. State, 816 So.2d 1218, 1221 (Fla. 2d DCA 2002). In Adickes v. State, 712 So.2d 815, 816 (Fla. 5th DCA 1998), the Fifth District reversed a revocation of probation when the evidence showed that Adickes had been explicitly told by the Department of Corrections that he was not on probation despite his belief to the contrary. In doing so, the court noted that this evidence did “not support a finding of willfulness.” Id.

In this case, as in Adickes, the only evidence presented at the revocation hearing was that James was told by Department of Corrections employees at three different probation offices that he was not on probation despite his belief to the contrary. While the State in this appeal challenges the veracity of James’s testimony, it admitted in its own pleadings that James was never supervised due to a “clerical error.” And while the State did offer hearsay testimony that James was advised of the conditions of his probation by an unidentified “court officer” at his original sentencing hearing, this hearsay evidence, standing alone, was legally insufficient to support the revocation of James’s probation. See, e.g., Russell v. State, 982 So.2d 642, 646 (Fla.2008) (holding that while hearsay evidence is admissible at a revocation hearing, revocation may not be based solely on hearsay evidence); Johnson v. State, 962 So.2d 394, 396 (Fla. 2d DCA 2007) (same). Moreover, even if that hearsay evidence was legally sufficient, it does not rebut James’s testimony that he was told by the Department upon his release from prison that he was not, in fact, on probation. Thus, on this record, there is simply no evidence upon which the trial court could rely to find that James willfully violated his probation.

On appeal, the State’s only argument is, in essence, that it would have been “too hard” to disprove James’s claim that three Department employees told him that he was not on probation. The State argues that because James failed to appear for probation, no one could be called to rebut his testimony. However, the State did not allege in its affidavit of violation of probation that James failed to report for probation, and thus this alleged failure to report cannot support revocation of James’s probation. See Lee v. State, 67 So.3d 1199, 1201 (Fla. 2d DCA 2011) (holding that “[a] trial court is not permitted to revoke probation on conduct not charged in the affidavit of violation”) (quoting Cherington v. State, 24 So.3d 658, 660 (Fla. 2d DCA 2009)). Moreover, the State failed to call even the “court officer” who allegedly instructed James on the conditions of his probation at his sentencing hearing to establish that James “knew” that committing a new offense would be a violation of his probation. And, contrary to the State’s argument, it is not relieved of its burden to prove that James violated his probation simply because the necessary evidence would be “too hard” to obtain. Hence, since the State failed to prove that James willfully violated his probation, we must reverse the revocation of that alleged probation.

We note that during the pendency of the violation of probation proceedings, the trial court entered a corrected judgment and sentence that conformed the written judgment and sentence to the original oral pronouncement. Thus, the scrivener’s error in the written judgment and sentence that presumably gave rise to the Department’s confusion has been corrected. Accordingly, on remand, James should be released from prison in this case to serve the remainder of his probationary term.

Reversed and remanded.

WHATLEY and KELLY, JJ., Concur.

      . There is an “Order of Probation" in the court file that places James on probation and sets out the conditions of his probation. That order was signed "nunc pro tunc” to June 30, 2009. However, it is apparent from the order itself and the entire record in this case that this order, which was rendered on March 24, 2011, was signed after the affidavit of violation of probation at issue here had already been filed. Thus, it cannot constitute evidence that James knew of or was advised of the conditions of his probation either at his original sentencing in June 2009 or upon his release from prison in November 2010.

      . In the affidavit of violation of probation in this case, the Department alleged that James had violated his probation by committing a new offense. Our record does not include any documents concerning whether James was ever charged with that alleged new offense or what, if any, sentence he may be serving for that offense. Accordingly, we note that our direction that James be released back to probation in this case relates solely to his imprisonment in this case and may not result in his actual release from prison at this time if he is being held on a new charge or sentence.


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    Ana JIMINEZ, Appellant/Cross-Appellee, v. George FACCONE, Individually; and George Faccone, as Personal Representative of the Estate of Rita Faccone, Deceased, Appellees/Cross-Appellants.
    Nos. 2D10-4595, 2D10-5156.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2012.
    Rehearing Denied Oct. 03, 2012.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, and Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Appellant.
    Debbie Sines Crockett, Mark A. Boyle, Sr., Geoffrey H. Gentile, Sr., and Michael W. Leonard of Boyle, Gentile, Leonard & Crockett, P.A., Fort Myers, for Appellees.
   BLACK, Judge.

Ana Jiminez appeals the judgment entered against her and in favor of George Faccone and the Estate of Rita Faccone in a personal injury action stemming from an automobile accident. She also appeals the award of attorneys’ fees in favor of the Faccones. Ms. Jiminez raises several issues on appeal, including claims that the trial court erred in granting two pretrial motions for summary judgment. Because the trial court erred in granting those pretrial motions and thereby precluded Ms. Jiminez from presenting certain evidence in her defense at trial, we reverse the judgments and remand for a new trial. As a result, we also reverse the award of attorneys’ fees. We do not reach the final issue raised by Ms. Jiminez or the issue raised by George Faccone in his cross-appeal as both are rendered moot by our remand for new trial.

I. Background

George and Rita Faccone sued Ms. Jimi-nez for personal injuries allegedly sustained in an automobile accident. On the night in question, George Faccone was driving a 1986 Cadillac on Highway 41 in Collier County and was stopped in the left lane of a light-controlled intersection when his car stalled. There were six people in the vehicle, three of whom exited the vehicle in a failed attempt to push it through the intersection. Mr. Faccone testified that when he exited the vehicle, he activated the emergency flashers.

Ms. Jiminez,' driving a Nissan Sentra, approached the intersection in the same lane as the Faccone vehicle. It is undisputed that a van was travelling in the same lane, between her vehicle and the Faccone vehicle. Ms. Jiminez testified that both she and the van driver were travelling within the speed limit. She also stated that although it was dark and raining, she could see that the intersection light was green but could not see in front of the van. As the two vehicles approached the intersection, the van abruptly swerved into the right lane and Ms. Jiminez, unable to stop, collided with the rear of the Faccones’ vehicle. According to Ms. Jiminez, the Faccones’ vehicle was not illuminated by lights, flashers or otherwise.

At the time of impact, George Faccone was outside of the vehicle; Rita Faccone was inside the vehicle, seated in the backseat with her seatbelt unbuckled. Although outside of his vehicle, George Faccone was not struck by Ms. Jiminez’s vehicle. His claimed injuries resulted from being pulled out of the way of the oncoming vehicle by his son. Rita Fac-cone claimed injuries to her neck and back.

Prior to trial, the Faccones moved for summary judgment, or alternatively, partial summary judgment as to the issue of liability for the accident. Specifically, the Faccones argued that because Ms. Jiminez struck the Faccones’ vehicle from behind, she was negligent and was the “sole cause” of the accident. The trial court granted the motion. Also pretrial, the Faccones moved for summary judgment on the issue of whether Ms. Jiminez was entitled to the threshold defense under section 627.737, Florida Statutes (1997), requiring the Fac-cones to establish a threshold injury in order to recover noneconomic damages. The trial court, adopting the magistrate’s findings and recommendation, granted the Faccones’ motion, thereby preventing Ms. Jiminez from presenting the threshold defense at trial.

The case proceeded to trial. In discussing jury instructions, the parties stipulated that the permanency threshold issue would be submitted to the jury to avoid potential retrial on that issue. Ultimately, the jury returned a verdict finding Ms. Jiminez eighty-five percent negligent for Rita Fac-cone’s injuries and seventy percent negligent for George Faccone’s injuries. The jury also found that neither of the Fac-cones had suffered a permanent injury in the accident.

The total damages awarded to the Estate of Rita Faccone were $82,985.18. The total damages awarded to George Faccone were $56,412. Included in the awards were damages for each of the Faccones’ loss of consortium claims. Interestingly, although the Faccones’ counsel requested only $1 in consortium damages for each of the Faccones, the jury awarded George Faccone $45,000 and Rita Faccone’s Estate $41,466.59. The award to the Estate was the exact amount awarded for past medical expenses. It appears that there may have been some jury confusion as to the nature of consortium damages. After deliberations had begun, the jury raised a question as to the proper measure of consortium damages. It was only at that point the court realized that the jury had not been previously instructed on the loss of consortium claims.

Following trial, the Faccones moved for attorneys’ fees based upon proposals for settlement. The trial court granted the motions and rendered judgment on the fee claim.

II. Analysis

Ms. Jiminez claims the trial court erred in granting both motions for summary judgment filed by the Faccones. Our standard of review is de novo, McGill v. Perez, 59 So.3d 388, 389 (Fla. 2d DCA 2011), and in so reviewing, “we must ‘draw every inference in favor of the party against whom the summary judgment was entered,’ ” id. at 390 (quoting Galaxy Fireworks, Inc. v. Bush, 927 So.2d 995, 996 (Fla. 2d DCA 2006)). - “Succinctly put, ‘[wjhen acting upon a motion for summary judgment, if the record raises the slightest doubt that material issues could be present, that doubt must be resolved against the movant and the motion for summary judgment must be denied.’” Itiat v. Foskey, 28 So.3d 140, 141 (Fla. 1st DCA 2010) (alteration in original) (quoting Jones v. Dirs. Guild of Am., Inc., 584 So.2d 1057, 1059 (Fla. 1st DCA 1991)).

In granting the motion for summary judgment as to liability, the trial court determined that there were no issues of material fact in dispute and that Cevallos v. Rideout, 18 So.3d 661 (Fla. 4th DCA 2009), was “pretty much on all fours” with the facts of the Faccones’ case. Cevallos stands for the proposition that a “rear-driver plaintiff, like [a] rear-driver defendant, must prove that the lead-driver stopped abruptly and arbitrarily to rebut the presumption that the plaintiffs own negligence was the sole proximate cause of the accident.” 18 So.3d at 663. This presumption — that the rear-driver’s negligence was the sole cause of the accident—

is founded on the perceived need to somewhat lessen the burden borne by a plaintiff to prove two of the requisite elements of negligence — breach of the duty of care and causation — which are inherently difficult to establish in most rear-end collision cases because the driver of the lead vehicle, whose attention is usually focused on events in the front rather than the rear of the vehicle, generally knows that he or she was struck from behind but does not know why.

Alford v. Cool Cargo Carriers, Inc., 936 So.2d 646, 649 (Fla. 5th DCA 2006). “The rule does not require the rear-car driver to eliminate every possible inference of negligence on his part in connection with the accident before he is entitled to have the jury decide the case.” Sistrunk v. Douglas, 468 So.2d 1059, 1060 (Fla. 1st DCA 1985). The driver of the rear vehicle “is required only to produce evidence from which his exercise of reasonable care under the circumstances could properly be inferred by the jury.” Id. at 1060-61. Thus, the driver of a rear vehicle is presumed negligent unless the rear driver “ ‘produces evidence which fairly and reasonably tends to show that’ ” the presumption is misplaced. McGill, 59 So.3d at 390 (quoting Gulle v. Boggs, 174 So.2d 26, 28-29 (Fla.1965)). “If the rear driver presents sufficient evidence to rebut the presumption, the case is submitted to the jury, without the aid of the presumption, ‘to reconcile the conflicts and evaluate the credibility of the witnesses and the weight of the evidence.’ ” Alford, 936 So.2d at 650 (quoting Guile, 174 So.2d at 29).

Florida courts have consistently classified sufficient evidence to rebut the presumption in three ways: (1) “an abrupt and arbitrary stop in a place where it could not reasonably be expected or an unexpected” lane change; (2) “a mechanical failure, i.e., sudden brake failure, that causes the rear driver to collide with the lead driver”; and (3) an “illegally and, therefore, unexpectedly stopped” lead vehicle. Alford, 936 So.2d at 649-50.

In this case, it was undisputed that it was both dark and raining at the time of the accident. It was also undisputed that the Faccones’ car was in the left lane of traffic, that the traffic light was green, and that the van travelling in front of Ms. Jiminez abruptly changed lanes. The parties disagreed, however, as to whether the emergency flashers on the Faccones’ vehicle were illuminated. Ms. Jiminez claimed that neither the headlights nor the emergency flashers were on; George Faccone claimed otherwise. Sufficient evidence “fairly and reasonably” tended to show that the Faccones’ vehicle was illegally stopped in the roadway. At a minimum, there was conflicting testimony regarding whether the Faccones’ vehicle was properly illuminated, material to the above. Thus, drawing every reasonable inference in favor of Ms. Jiminez, as we must, disputed issues of material fact existed which should have precluded entry of a summary judgment, and the negligence issue should have been submitted to the jury. See McGill, 59 So.3d at 390; Itiat, 28 So.3d at 141; see also Klipper v. Gov’t Emps. Ins. Co., 622 So.2d 1141, 1143 (Fla. 2d DCA 1993) (reversing and remanding for a new trial where evidence suggested that no one in the lead vehicle attempted to move the disabled car onto a median, signal oncoming traffic, or illuminate the vehicle). The court’s error in granting summary judgment on this issue necessitates not only a reversal of the summary judgment but remand for a new trial.

Ms. Jiminez also appeals the grant of summary judgment wherein the court found that Florida’s permanent injury threshold defense was unavailable to her. Again, our standard of review is de novo. Auto-Owners Ins. Co. v. Above All Roofing, LLC, 924 So.2d 842, 843 (Fla. 2d DCA 2006) (“In reviewing the trial court’s ruling on a motion for summary judgment, we apply a de novo standard. Similarly, the trial court’s interpretation of an insurance policy to determine coverage is a matter of law also subject to our de novo review.” (citations omitted)).

At the time of the accident, Ms. Jiminez had been in Florida for two weeks, having recently taken a job in the state. As the magistrate correctly found, and the trial court adopted, there were no disputed issues of material fact. However, the magistrate and the trial court erred as a matter of law in finding that Ms. Jiminez’s Illinois automobile insurance policy did not provide the coverage required by Florida’s no-fault laws.

As part of her defense, Ms. Jiminez claimed that she was entitled to argue that the Faccones had not sustained the necessary threshold injuries for them to recover noneconomic damages “for pain, .suffering, mental anguish, and inconvenience” under section 627.737(2). Pursuant to section 627.737(2), a part of Florida’s no-fault laws, a plaintiff may not recover noneco-nomic damages from an “owner, registrant, operator, or occupant of a motor vehicle with respect to which security has been provided as required by ss. 627.730-627.7405” unless the claimed injury or disease is: “(a) Significant and permanent loss of an important bodily function[;] (b) Permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement[;] (c) Significant and permanent scarring or disfigurement[;] [or] (d) Death.”

Ms. Jiminez, as a statutory nonresident, see section 320.01(35), (36), Florida Statutes (1997), became subject to Florida’s no-fault law requirements because she owned and operated a vehicle in the state and was required to register that vehicle. See §§ 320.02(1), 320.37, 320.38. Thus, Ms. Jiminez met the first requirement of section 627.737(2) — as owner and operator of a vehicle on the roads of this state — but she must also have had the necessary security in order to exercise the permanent injury threshold defense.

Section 627.733(1) provides that every vehicle required to be registered in the state must have security in the form of an insurance policy or other authorized method. Ms. Jiminez contends, as she did below, that her Illinois automobile insurance policy provided that security and complied with Florida’s no-fault laws. We agree.

Ms. Jiminez’s Illinois policy provided, in pertinent part:

1. Out-of State Coverage.
If an insured under the liability coverage is in another state or Canada and, as a non-resident, becomes subject to its motor vehicle compulsory insurance, financial responsibility or similar law:
a. the policy will be interpreted to give the coverage required by law;
and
b. the coverage so given replaces any coverage in this policy to the extent required by the law for the insured’s operation, maintenance or use of a car insured under this policy.
Any coverage so extended shall be reduced to the extent other coverage applies to the accident. In no event shall a person collect more than once.

The policy provision in question here is virtually identical to the policy provision discussed by the Fifth District in Meyer v. Hutchinson, 861 So.2d 1185 (Fla. 5th DCA 2003). And as the Meyer court did, we conclude that the language of the provision at issue “incorporates by reference” the laws of Florida without “a voluminous inclusion of the details of laws of all of the other jurisdictions.” Id. at 1188. The provision at issue “simply provides that whatever Florida requires as compulsory insurance or financial responsibility when [Ms. Jiminez] operates, maintains[,] or uses her automobile in Florida, that coverage is provided by the policy.” Id.

Therefore, we conclude that Ms. Jiminez was subject to Florida’s no-fault law and was required to, and did in fact, maintain no-fault insurance coverage through her Illinois policy. She was thus entitled to the permanent injury threshold defense, and the trial court erred as a matter of law in granting the Faccones’ motion for summary judgment. Further, as stipulated to by the parties, the question of whether the Faccones had sustained permanent injuries as a result of the accident was submitted to the jury and answered in the negative. Neither party argues that this stipulation was “obtained by fraud, misrepresentation, or mistake”; thus, it is binding upon the parties. See Johnson v. Johnson, 663 So.2d 663, 665 (Fla. 2d DCA 1995); see also Esch v. Forster, 123 Fla. 905, 168 So. 229, 231-32 (1936); O’Neill v. O’Neill, 812 So.2d 448, 452 (Fla. 5th DCA 2002) (“A court will enforce a stipulation unless good cause is shown, especially where parties have acted in reliance on the stipulation.”). Because the permanent injury threshold defense is available to Ms. Jiminez on remand and the jury has already found that the Faccones did not sustain permanent injuries, this case should be retried on liability and economic damages only. This eliminates the need to address the peculiar and disproportionate consortium awards. See Commercial Clean-Up Enters., Inc. v. Holmquist, 597 So.2d 343, 344-45 (Fla. 2d DCA 1992).

Finally, the court’s award of attorneys’ fees based upon proposals for settlement, as well as the award of prevailing party costs, must also be reversed as a result of the trial court’s errors as to both summary judgment orders.

Accordingly, we reverse and remand for a new trial and for further proceedings consistent with this opinion.

KELLY and CRENSHAW, JJ., Concur.

      . Ms. Faccone passed away from an unrelated cause after the accident but before trial. Her estate was properly substituted as a party to the action.


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    Jonathan B. BLUNTSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6289.
    District Court of Appeal of Florida, First District.
    Aug. 29, 2012.
    Rehearing Denied Oct. 17, 2012.

      Jonathan Bluntson, pro se, Appellant. Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jonathan Bluntson appeals the trial court’s partial denial of post-conviction relief pursuant to rule 3.850, Florida Rules of Criminal Procedure. He argues that the trial court’s denial of his post-conviction request to withdraw his plea must be reversed due to various instances of ineffective assistance of counsel which rendered his plea involuntary. We disagree and affirm the trial court’s order.

The trial court conducted a limited evi-dentiary hearing on Appellant’s claims that counsel had misadvised him regarding his jail credit award and that counsel failed to object to the sentences imposed for Appellant’s third degree felony counts. Also considered at the evidentiary hearing was the voluntariness of Appellant’s plea when counsel mistakenly advised Appellant that his maximum sentence exposure was 125 years incarceration rather than 115 years.

Considering the jail credit and sentences exceeding the statutory maximum for third degree felonies, the trial court awarded additional jail credit and corrected the sentences for the third degree felony counts after the evidentiary hearing. These sentencing errors did not render Appellant’s plea involuntary and did not require the court to allow Appellant to withdraw his plea. When a sentencing error is discovered in post-conviction proceedings, the trial court has the option to “correct the sentence as may appear appropriate.” Fla. R.Crim. P. 3.850(d). Appellant has failed to show any error in the trial court’s disposition of these issues.

Appellant’s claim that counsel was ineffective for misadvising him of his maximum sentence exposure prior to the entry of the plea, rendering his plea involuntary, was properly rejected by the trial court. This issue was considered at the evidentia-ry hearing and testimony of trial counsel was presented. The trial court noted that at the original sentencing, the maximum sentence was discussed and the court informed Appellant that he faced a maximum of 115 years in prison if he went to trial. Any previous error by defense counsel was cured by the trial court’s statement at sentencing. Alfred v. State, 998 So.2d 1197 (Fla. 4th DCA 2009).

The trial court’s order also addressed issues raised in the amended motion for post-conviction relief but not addressed at the evidentiary hearing. The trial court denied relief on these issues and attached portions of the record showing that Appellant was entitled to no relief. Fla. R.App. P. 9.141. Specifically, the attachments support the trial court’s ruling that if Appellant had gone to trial, he would have qualified for statutory sentence enhancements for repeat offenders. Appellant failed to show any misadvice of counsel pertaining to statutory sentence enhancements or other grounds upon which his pida might be found involuntary.

Finally, Appellant’s post-hearing claim that counsel failed to advise him of an available defense to the charges of dealing in stolen property was properly rejected by the trial court. The trial court attached portions of the record showing a factual basis for the plea and the plea itself, which included Appellant’s waiver of his right to present defenses. See Russ v. State, 937 So.2d 1199 (Fla. 1st DCA 2006). In addition to the plea, the trial court attached the portion of the plea colloquy where Appellant confirmed to the court that he understood that he was waiving his right to make the State prove its case against him beyond a reasonable doubt.

Because Appellant has failed to show any error in the trial court’s order, the order on appeal is AFFIRMED.

LEWIS, CLARK, and MARSTILLER, JJ., concur.


author: LaROSE, Judge.

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    Nicole Chantel Nash BREWINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-458.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2012.

      James Marion Moorman, Public Defender, and Maura J. Kiefer, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   LaROSE, Judge.

Nicole Brewington appeals her conviction and thirty-year sentence for aggravated manslaughter of a child. See § 782.07(3), Fla. Stat. (2006). We affirm, but write to address her claim that the trial court erred in excluding evidence of battered woman syndrome.

The Department of Children and Families (DCF) removed Ms. Brewington’s three children from her care in March 2007 because her boyfriend, Kashon Scott, was selling drugs from her home while caring for the children. Within a month, the trial court returned the children to Ms. Brewington on the conditions that she not allow Mr. Scott to live in her home and not allow Mr. Scott to care for the children. The next day, the police reported to the Abuse Hotline that Mr. Scott battered Ms. Brewington in her home while the children were present. On May 29, 2007, police responded tó a 911 call that a child at Ms. Brewington’s home was not breathing. They transported the three-year-old, Z.J., to the hospital, where he was pronounced dead. Little Z.J. died from beatings he received over a one-to-three-day period at the hands of Mr. Scott.

Officers arrested Mr. Scott for second-degree murder and aggravated child abuse. They arrested Ms. Brewington for aggravated manslaughter of a child. The information alleged that Ms. Brewington:

Between April 04, 2007 and May 29, ..2007 in Lee County, Florida, did unlawfully, by culpable negligence under Florida Statute section 827.03(3), kill Z.J., a human being under thé agé of 18, by failure or omission to provide the child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child, contrary to Florida Statute 782.07(3).

At trial, Ms. Brewington’s older children testified that they told her that Mr. Scott was beating the baby. Ms. Brewington saw his bruises, labored breathing, and vomiting, yet she failed to seek medical care. The State presented evidence that the child died from treatable injuries.

Ms. Brewington sought to present evidence that she suffered from battered woman syndrome. Her defense would be that battered woman syndrome caused her to fail to realize exactly what was taking place. She claimed that she did not know Mr. Scott was beating the baby and that she did not realize the child needed a doctor. Once Mr. Scott could no longer hide ZJ.’s condition, he took away her cell phone and prevented her from calling for help. Ms. Brewington meant to use the battered woman syndrome evidence to challenge the mens rea element — culpable negligence. We note that Ms. Brewington testified that Mr. Scott beat her in the past and that she was afraid of him.

The State argued that battered woman syndrome was inapplicable because it is used to explain aggressive action taken in self-defense, sometimes without an imminent threat. In contrast, Ms. Brewington sought to use battered woman syndrome to explain her failure to protect her child. The issue before us is whether a defendant may use such evidence in these circumstances.

Florida uses the Frye test to guarantee the reliability of new or novel scientific evidence, despite the more lenient federal standard in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). Brim v. State, 695 So.2d 268, 271 (Fla.1997). Although many states have adopted Daubert, “Frye ‘remains the rule in a significant minority of states.’ ” Marsh v. Valyou, 977 So.2d 543, 547 (Fla.2007) (quoting David E. Bernstein & Jeffrey D. Jackson, “The Daubert Trilogy in the States,” 44 Jurimetrics J. 351, 352 (2004)).

[The Frye ] standard requires a determination, by the judge, that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community. ... “[T]he burden is on the proponent of the evidence to prove the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts at hand.... The general acceptance under the Frye test must be established by a preponderance of the evidence.”

Brim, 695 So.2d at 272 (quoting Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995)). “Any doubt as to admissibility under Frye should be resolved in a manner that minimizes the chance of a wrongful conviction. ...” Ramirez v. State, 810 So.2d 836, 853 (Fla.2001). At trial, the State recognized that battered woman syndrome had been Frye tested and was allowed into evidence in Florida to explain the aggressive action of a victim of abuse. Ms. Brewington sought to expand the reach of battered woman syndrome.

The trial court recognized that battered woman syndrome “perhaps could assist the jury in determining the element of culpable negligence.” However, the trial court ruled that the evidence was inadmissible. The trial court based its ruling on the fact that the defense’s expert witness (1) had not shown that the effect of battered woman syndrome in the context of failing to aid a child was capable of objective testing, (2) had not shown that battered woman syndrome in this context had been subject to peer review and publication, and (3) had not shown that the scientific or psychological community generally accepted battered woman syndrome to negate the mens rea element for a woman charged with failing to protect a child from abuse. We review the trial court’s assessment of Frye under these circumstances de novo. Brim, v. State, 779 So.2d 427, 428 (Fla. 2d DCA 2000) (citing Hadden v. State, 690 So.2d 573, 578 (Fla.1997)).

Some jurisdictions have held battered woman syndrome evidence admissible in analogous circumstances. State v. Stewart, 228 W.Va. 406, 719 S.E.2d 876, 885 (W.Va.2011), held battered woman syndrome expert testimony admissible in a trial for the murder of the defendant’s husband, even though she did not claim self-defense, to explain how it may affect a defendant’s reasoning, beliefs, perceptions, or behavior that may negate an element of the charged crime such as intent or premeditation. Pickle v. State, 280 Ga.App. 821, 635 S.E.2d 197, 201, 203-04 (Ga.Ct. App.2006), held that expert testimony that the defendant suffered from battered person syndrome was admissible to rebut the mental state necessary to establish her intent in her trial for child abuse, battery, and aggravated assault on her child. Mott v. Stewart, No. 98-CV-239, 2002 WL 31017646, at *6 (D.Ariz. Aug.30, 2002), held that exclusion of expert testimony on character traits of battered women, offered to negate the intent element of child abuse and felony murder of a child, deprived the defendant of her right to present a complete defense. Porter v. State, 243 Ga. App. 498, 532 S.E.2d 407, 416 (Ga.Ct.App. 2000), held that an expert psychologist’s battered woman syndrome evidence was admissible to show whether the defendant knew about her husband’s actions as related to the child abuse charge against her.

Other jurisdictions have held expert testimony evidence on battered woman syndrome admissible for purposes other than self-defense. See Arcoren v. United States, 929 F.2d 1235, 1240-41 (8th Cir. 1991) (holding prosecution’s battered woman syndrome evidence admissible to explain domestic battery victim’s recantation of abuse); People v. Brown, 33 Cal.4th 892, 16 Cal.Rptr.3d 447, 94 P.3d 574, 584 (Cal. 2004) (holding no error in admitting prosecution’s expert testimony on battering, under general rule authorizing helpful expert testimony, to explain domestic violence victim’s tendency to recant and other conduct that might otherwise have led to incorrect assumptions); People v. Lafferty, 9 P.3d 1132, 1135 (Colo.Ct.App.1999) (stating admissibility of evidence of battered woman syndrome should not be limited to establishing self-defense; holding it admissible to explain victim’s recantations and inconsistencies about assault); State v. Haines, 112 Ohio St.3d 393, 860 N.E.2d 91, 97-98 (Ohio 2006) (holding battered woman syndrome expert testimony admissible as relevant to victim’s credibility — for jury to understand why victim returned to defendant despite his abuse of her); Trujillo v. State, 953 P.2d 1182, 1187 (Wyo.1998) (holding statute permitting expert testimony on battered woman syndrome in self-defense cases does not preclude its use to explain victim’s behavior; expert testimony describing battered woman syndrome sufferers’ characteristics admissible because it might help jury understand victim’s behavior in returning to defendant after abuse and was based on recognized syndromes); cf. United States v. Peralta, 941 F.2d 1003, 1009-10 (9th Cir.1991) (holding expert testimony about hostages’ reactions admissible to explain their conduct after kidnapping).

“[T]he culpability of parents or caretakers who are themselves victims of the violent behavior of the direct abuser” is an emerging issue. Kathy Luttrell Garcia, Battered Women and Battered Children: Admissibility- of Evidence of Battering and its Effects to Determine the Mens Rea of a Battered Woman Facing Criminal Charges for Failing to Protect a Child From Abuse, 24 J. Juv. L. 101, 104 (2003-04).

Clearly, admission of evidence of battering and its effects will not relieve a battered woman from criminal liability when the factfinder determines that she actively participated in the abuse of a child. It also will not automatically, and might not completely, relieve a battered woman from criminal liability when she fails to protect her child from the abuse of another. It should be admitted, however, when relevant to the issue of whether or not the passive parent actually formed a culpable mental state that is an element of the charged offense.
Effects of battering evidence will help the trier of fact understand the circumstances surrounding the abuse. It will also help the trier of fact to determine the existence and extent of the “passive” parent’s participation in the abuse, the extent of the passive parent’s attempts to protect the child, and the extent to which the actions of the direct abuser prevented the passive parent from doing so. This will help ensure the focus is more appropriately placed on the parent or caretaker having the greater culpability for the violence: the parent who directly inflicted the injuries on the child, and who prevented the “passive” parent from intervening on the child’s behalf.

Id. at 139.

Despite developments in other jurisdictions, the trial court was constrained by Frye. Ms. Brewington’s proffered evidence was inadmissible because she failed to establish, by a preponderance of the evidence, that the theory that battered woman syndrome can negate mens rea for failing to protect a child has been sufficiently tested and generally accepted by the relevant scientific or psychological community. Unfortunately, Ms. Brewing-ton failed to meet the exacting Frye standard. Although this area of the law beckons for further analysis and development in the scientific and legal community, we cannot say, given Florida’s continued adherence to Frye, that the trial court erred.

Affirmed.

CRENSHAW and MORRIS, JJ., Concur.

      . Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923).

      . Under Daubert, the Frye test of general acceptance in the scientific community is only one factor among several in assessing the admissibility of scientific evidence. Daubert, 509 U.S. at 594, 113 S.Ct. 2786.


author: WARNER, J.

text:
    Donna SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1874.
    District Court of Appeal of Florida, Fourth District.
    Sept. 5, 2012.

      Richard G. Bartmon, Boca Raton, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

We reverse appellant’s convictions for one count of sexual battery on a child and one count of lewd or lascivious molestation. First, the trial court erred in refusing to allow her to call an assistant state attorney to whom the victim recanted his accusations and subsequently retracted his recantation. This ruling deprived appellant of evidence of both motive and improper influence which factored significantly into her defense. As to the lewd and lascivious molestation count, we reverse and remand because the charging document permitted multiple acts to be included and thus did not allow for a unanimous jury verdict. In light of the remand for a new trial, we also address the trial court’s failure to give an instruction on the theory of the defense.

The appellant is the adoptive mother of the victim in this case. She and her husband have two children and adopted the victim, D.S., when he was twelve. According to D.S.’s testimony, appellant and he first kissed around the time he turned thirteen. That was followed at other times by additional acts of improper touching, ultimately ending in sexual intercourse. At trial he described four separate acts of intercourse which he narrowed to four separate time periods. However, on cross-examination, the defense impeached his recollection of the time each event occurred.

Because the issue we address deals mainly with appellant’s defense, we describe it in more detail. In her defense, appellant claimed that she was assaulted by D.S. No consensual contact occurred. She admitted to kissing D.S. on the lips when he requested it, after his having seen her father kiss her when he came to visit. She did not engage in any lascivious behavior voluntarily. She described two incidents of sexual behavior not culminating in intercourse initiated by D.S., which she claimed she immediately rejected. As to the intercourse, D.S. assaulted her on two occasions. The first time occurred about a week after she had a hysterectomy and was still recuperating from the surgery, which resulted in incisions and stitches throughout her abdomen. She had fallen asleep watching T.V. in D.S.’s bedroom, and she was awakened to D.S. attacking her. She did not report this, because D.S. was her son. The second time occurred about six months later, and after that she realized that D.S. needed help.

To help D.S. she contacted a therapist to counsel D.S. After several sessions with the therapist, she realized that D.S. had not told the therapist about his behavior. She then talked to the therapist to let him know that a sexual incident occurred between her and D.S. and that D.S. needed to talk about it. Believing that they would both be going through counseling on D.S.’s behavior, she began making notes as to the occurrences.

According to appellant’s defense, D.S. managed to see her notes of the encounters prior to his next visit to the therapist. When the therapist asked him whether there was something else D.S. needed to tell him, D.S. discussed having sex with his mom. The therapist called the abuse hotline, the Child Protection Team (“CPT”) interviewed D.S., and he admitted to having intercourse with his mother, which he described as consensual. D.S. was also interviewed by the police, who then interviewed appellant. She told them that D.S. had assaulted her but that she had not reported it. She expressed regret and thought that she should have done more to stop it. The officers arrested her, and she posted a bond.

In order to avoid further disruption of the lives of her children, including D.S., appellant agreed to stay out of the residence and permit the children to remain. Thus, D.S. was in the house with his siblings and appellant’s husband. The situation was strained, and D.S. often ate alone in his room.

Approximately two months after the incident and appellant’s arrest, D.S. called the original Assistant State Attorney in charge of the case, Stacy Ibarra, and told her that “things had been twisted” and that the story he had told before wasn’t true. He then denied having sex with his mother.' Confronted by Ibarra with the fact that his mother had admitted having sex with him (a fact that was only a half-truth — she admitted being assaulted and forced into intercourse with him), he then asked to come and see Ibarra. Ibarra also remembered that D.S. was worried about being kicked out of the house. Several days later, his father (appellant’s husband) drove him to meet with Ibarra. Without anyone else present, Ibarra interviewed D.S. for about 45 minutes. According to the deposition of Ibarra, D.S. was very concerned about his situation in the home and how difficult it was. She asked him about being pressured by the family, and he said that he felt indirect pressure. She asked whether he had told the truth to the police and the CPT. After being reminded what he told them, he then told her that he had told the truth, but in fact there were more than two incidences of sexual intercourse. After the interview, the defense alleges that Ibarra told the father not to pressure D.S. or she would bring witness tampering charges. Shortly after that, D.S. left the home and went to live with someone else.

Ibarra did not reveal D.S.’s recantation and then his retraction of his recantation to the defense. Instead, the state filed additional charges against the appellant based upon D.S.’s allegations of additional sexual intercourse, although in the information the state did not differentiate them and charged them as multiple events within a long time frame. Ten months later, a new ASA in charge of the case found the notes and disclosed the conversations to the defense, who then took Ibarra’s deposition.

At trial, the state questioned D.S. on his conversation with Ibarra. He admitted having called her. In his testimony he maintained that he was receiving pressure from the family, particularly appellant’s father (D.S.’s adoptive grandfather), whom D.S. said told him to help his mother. Whatever his grandfather said, it would have been shortly after the appellant’s arrest in May, when the grandfather was visiting and not contemporaneous with the call to Ibarra two months later. Nevertheless, the state cast his recantation as caused by pressure from his family.

The defense sought to call both Ibarra and the new ASA to testify with respect to D.S.’s statements. The court denied the defense request, because on the stand D.S. had admitted making the statements. The defense continually sought to introduce the ASA evidence as dealing with motive and credibility and to show pressure from the state not to recant, as well as the state’s failure to disclose it contemporaneously, thwarting the defense’s case. The court denied all requests.

The trial was a contest of credibility between the appellant and D.S. No physical evidence was admitted to confirm or deny any of the information. The trial court granted a JNOV as to one sexual battery count. It then charged the jury on sexual battery but did not give the defendant’s requested instruction on her defense of assault. The court did instruct the jury that because of D.S.’s age, consent was not a defense to the charge. After hearing all of the evidence, the jury found the appellant not guilty of all sexual battery charges except the incident occurring after appellant’s hysterectomy for which it found her guilty. It also found her guilty of one count of lewd and lascivious conduct. After denying the motion for new trial, the court downwardly departed on her sentence to eighty months in prison. She appeals, and the state cross-appeals the downward departure.

Appellant first argues that the trial court abused its discretion by excluding testimony from both ASAs regarding the undocumented meeting with Ibarra. She claimed that the testimony was relevant to motive, credibility, and whether pressure was put on D.S. to retract his recantation, thus significantly impacting the credibility of the state’s case. In denying the right to call these witnesses, the court denied the defense its constitutional right to call witnesses in its defense.

We have noted the constitutional importance of permitting the defense to call witnesses critical to establishing reasonable doubt. In Vannier v. State, 714 So.2d 470, 471-72 (Fla. 4th DCA 1998), we explained:

As the Court said in Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 1049, 35 L.Ed.2d 297 (1973), “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” ... Our own supreme court has held that “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission.” Rivera v. State, 561 So.2d 536, 539 (Fla.1990).

As the supreme court noted in Rivera, however, admission is governed by rules of relevancy. 561 So.2d at 539. Here, the inquiry was relevant to the defense, the victim’s motive, and to show reasonable doubt in the state’s case.

What was important in calling Ibarra was not to relay what D.S. said to her, but rather to reveal both what she said to him and the context of the conversation. The defense’s theory in using these statements was to show coercion or manipulation by the state; show motive or bias in D.S.’s trial testimony; attack credibility; and provide reasonable doubt. The defense wanted to show coercion by Ibarra in the circumstances surrounding Ibarra’s unrecorded conversations with D.S., who was there to tell Ibarra that he had not told the truth about a pending criminal case — a serious issue. Further, Ibarra told him that appellant had admitted to sexual intercourse. While appellant admitted being assaulted, she never admitted consensual sex. Had the evidence been admitted, the defense could have suggested that D.S. was pressured to conform his statement to this half-truth told by Ibarra. In addition, D.S. was finding life at home difficult. Ibarra discussed his home situation and then threatened the appellant’s husband with witness tampering if he pressured D.S. Shortly thereafter, D.S. left the appellant’s home. This evidence may provide a motive for D.S.’s change of heart to conform his statement to what Ibarra wanted to hear. He may have wanted to be removed from a situation that he created by his statements and to have secured the protection of the state in doing so.

By testifying, D.S. placed his credibility at issue, including any bias or motive for testifying, particularly because Ibarra did not reveal to the defense that D.S. had changed his testimony, and therefore, D.S.’s motive for his trial testimony was the product of possible manipulation. Section 90.608(2), Florida Statutes (2009), allows a party to attack the credibility of a witness by “[s]howing that the witness is biased.” “ ‘The ability to expose an improper impetus for a witness’ testimony is an essential component of the right to a jury trial.’ ” Love v. State, 971 So.2d 280, 285 (Fla. 4th DCA 2008) (quoting Jones v. State, 678 So.2d 890, 892 (Fla. 4th DCA 1996)). In Love, the court noted the defendant’s right to confront adverse witnesses, and that “the Sixth Amendment narrows a trial court’s discretion to exclude evidence of a witness’ bias under section 90.403.” Id. at 285-86. “[W]hen cross-examination alone is not sufficient to expose the possibility of improper motives in a witness, a defendant may present other impeachment testimony to demonstrate bias.” Hair v. State, 428 So.2d 760, 762 (Fla. 3d DCA 1983). Extrinsic evidence is admissible for collateral impeachment as “evidence which would discredit a witness by pointing out the witness’s bias, corruption or lack of competency.” Correia v. State, 654 So.2d 952, 954 (Fla. 4th DCA 1995) (citing Dempsey v. Shell Oil Co., 589 So.2d 373, 377 (Fla. 4th DCA 1991)). Here, the defense had the right to inquire and inform the jury of the entire situation in assessing D.S.’s credibility.

Finally, the state suggested in its testimony that the family was pressuring D.S. to change his story. Revealing the entire episode would permit the defense to suggest the opposite — that the state was pressuring D.S. to maintain his accusations rather than requiring it to drop the case against appellant.

Furthermore, we also agree with the appellant that the state’s questioning of D.S. and eliciting testimony about the alleged pressure from the family to change his testimony when he spoke to the ASA opened the door for testimony from Ibarra to explain the exact events. “We have held that when the state ‘opens the door’ to misleading testimony or has made specific factual assertions, the opposing party has the right to correct that information in order that the jury not be misled.” Campbell v. State, 2 So.3d 291, 295 (Fla. 4th DCA 2007) (citing Bozeman v. State, 698 So.2d 629, 630 (Fla. 4th DCA 1997)). Here, the defense was entitled to bring out Ibarra’s conduct to determine whether there was pressure from the family or whether Ibarra exerted pressure to keep D.S. from retracting his statements.

While we acknowledge that it is far from the norm to call a prosecutor to testify in a case, this is a very unusual case with very unusual facts and prosecutorial conduct. Nor do we determine that this evidence would actually be helpful to the defense. As the state points out, Ibarra’s testimony could actually hurt the defense’s attack on D.S.’s testimony. However, a defendant is entitled to produce relevant witnesses in her defense. It is not for us to interfere with the strategic decisions by counsel.

Because we are reversing for a new trial, we address the jury instructions. While we find no error in refusing the jury instruction on unanimous verdicts (as it is covered by Standard Instruction Jury Instruction 3.12(a)), as well as the court’s other instructions on each count as to when the crimes occurred, we do conclude that on retrial the appellant is entitled to her requested instruction on her theory of defense. Appellant requested that the following instruction be given:

[Appellant] has asserted a defense that [D.S.] committed a sexual assault and or a sexual battery against her. It is a defense to the crimes charged if you find that [D.S.] committed a sexual assault and or a sexual battery against [appellant].

The defense patterned its instruction after a use of non-deadly force instruction.

“A defendant in a criminal case is entitled to have the jury instructed on the rules of law applicable to his theory of defense if there is any evidence to support the instruction.” Mitchell v. State, 958 So.2d 496, 499 (Fla. 4th DCA 2007) (citing Smith v. State, 424 So.2d 726, 732 (Fla.1982)). Failure to give a requested instruction is error when “ ‘(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 v. State, 787 So.2d 747, 756 (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) (citing Stephens, 787 So.2d at 755-56).

In this case, appellant claimed that the sexual intercourse was an assault on her against her will. That claim was supported by her testimony and her first statement to police. It would particularly apply to the charge on which she was found guilty, namely sexual intercourse shortly after her hysterectomy. It seems implausible that a woman who had a complete hysterectomy would be soliciting sex less than a week after a major operation.

The standard instructions did not adequately cover this defense. The court instructed the jury that an element of the offense of sexual battery of a minor was that the “appellant” committed an act upon [D.S.] in which, A, the sexual organ of [D.S.] penetrated or had union with the vagina of [appellant]. The court also instructed the jury that “It is not a defense that [D.S.] was willing to engage in these acts which would constitute sexual battery or consent to engage in such acts.”

From the instructions, the jury could have concluded that D.S. could not “consent” to a sexual act even if he was the aggressor. Therefore, the jury could find appellant guilty even if she was raped. The defense instruction was necessary to clarify the instructions so that the jury was not misled by the standard instructions. A defendant is entitled to a self-defense instruction where the evidence supports a claim that the victim was the aggressor. See, e.g., Deveaugh v. State, 575 So.2d 1373 (Fla. 4th DCA 1991) (holding that “instruction on justifiable use of non-deadly force was of the essence of appellant’s defense and clearly should have been given”). The instruction requested in this case is akin to a self-defense instruction. Under the very unique facts of this case, we hold that the instruction should have been given.

Finally, we agree with appellant that her conviction for lewd and lascivious conduct cannot stand, because the information alleged that the appellant committed “numerous” unspecified lewd acts on D.S. within a thirty-month time span. Appellant objected to this broad time span both in motions prior to trial and again to the trial court’s submission of this charge to the jury. We acknowledge that prosecutors are given some latitude in charging child sexual abuse because of the nature of crimes. Whittingham v. State, 974 So.2d 616, 618-19 (Fla. 4th DCA 2008). However, where charging documents containing multiple charges have been allowed are usually cases where no objection has been made to the charge either pre-trial or during trial. Thus, we have considered whether the issue presents a fundamental error, which we have concluded it does not. As we noted in Whittingham,

Because the state may charge a defendant in child sexual abuse cases in a manner not permitted in other types of criminal cases, expanding time periods for the commission of offenses and grouping types of offenses together, we hold that it is not fundamental error to submit such a charge to the jury. A defendant must object at trial to submission to the jury of an aggravated charge to preserve the objection. Otherwise, the prosecution may assume that by failing to challenge the charging pattern, the defendant has acquiesced in the state’s determination to charge all of the same type of acts within a single count.

Id. In this case, having repeatedly objected to the charging document, before trial in her motions to dismiss and during trial in her motion for judgment of acquittal and at the charge conference, appellant’s constitutional right to a unanimous jury was compromised because of the state’s inclusion of multiple possible lewd acts within one count. See Perley v. State, 947 So.2d 672, 674-75 (Fla. 4th DCA 2007) (reversing on constitutional grounds when there were two potential incidents constituting the crime of escape for one charged crime). While in Whit-tingham we distinguished Perley on the bases that the prosecutor in Perley made an “affirmative invitation to the jury to find guilt by essentially a non-unanimous verdict” and that Perley was not a child sexual abuse case, Whittingham required a fundamental error analysis, which this case does not, as appellant voiced her objection to the charging document before and during trial.

In fact, and similar to Perley, the prosecutor contended that the lewd and lascivious conduct count was in essence a catch-all charge, intended to cover all the lewd and lascivious conduct incidents within one count. “[W]here a single count embraces two or more separate offenses, albeit in violation of the same statute, the jury cannot convict unless its verdict is unanimous as to at least one specific act.” Robinson v. State, 881 So.2d 29, 31 (Fla. 1st DCA 2004). Here, as in Perley, it is impossible to determine on which lewd act the jury found appellant guilty. The appellant objected to this method of charging, and from the evidence at trial it is apparent that the charge could have been narrowed both as to time frame and the nature of the act. Of course, as we noted in Whittingham, this can act detrimentally to the defendant because, were the prosecutor to charge each discrete act, “the defendant is subject to substantially greater penalties and potential consecutive sentencing on each charge.” 974 So.2d at 619. As we did in Perley, however, we reverse the conviction for lewd and lascivious conduct and remand for the state to elect one act upon which to try the appellant.

We affirm without discussion all remaining issues in the appeal. Because of our reversal of the conviction and sentence, we do not address the issue on cross-appeal.

Reversed and remanded far proceedings in accordance with this opinion.

STEVENSON and GROSS, JJ„ concur.

      . Technically, the request for instruction was not properly preserved — the requested instruction was part of the packet of requested instructions, but it was not addressed at the charge conference. Although after the jury retired defense counsel did make an objection to the court’s failure to give its requested instructions, including its theory of defense instruction, which the court "noted,” because the court was never presented with the requested jury instruction, the defense could not object to the court’s failure to give it. However, we address the issue for purposes of retrial.