author: STEVENSON, J.

text:
    D.T., a child, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D10-2760, 4D10-2761.
    District Court of Appeal of Florida, Fourth District.
    May 28, 2012.

      Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber and Myra J. Fried, Assistant Attorneys General, West Palm Beach, for appellee.
   STEVENSON, J.

D.T., a juvenile, was twice arrested and charged with offenses arising from his presence and activities at Nola’s Plaza, a small shopping plaza located at Forest Hill and Jog Road in Palm Beach County. These offenses were charged in separate petitions for delinquency and led to two independent adjudicatory hearings and findings of guilt on the charges. Because the legal issues are related, we sua sponte consolidate these cases on appeal solely for the purpose of writing a single opinion addressing both cases.

In case number 4D10-2760, D.T. challenges his adjudication of delinquency for the May 7, 2010 crimes of providing a false name to police and resisting an officer without violence. Appellant argues that an adjudication of guilt for providing a false name to police can be sustained only where the false name was provided during a lawful detention or arrest and, here, the false name was provided during a consensual encounter the subject of which involved only a potential trespass. As for the resisting without violence, appellant argues his conviction cannot be sustained as the evidence failed to establish police were engaged in the lawful execution of a legal duty when they attempted to arrest him as the evidence was insufficient to establish that police had the probable cause necessary to justify his arrest for trespassing. We agree with appellant and reverse these adjudications of guilt.

In case number 4D10-2761, D.T. challenges his adjudication of delinquency for the October 15, 2009 crime of resisting an officer without violence. Here, the resisting was appellant’s failure to comply with an officer’s orders that appellant stop as he attempted to leave an area upon the officer’s approach. Appellant argues that the officer was not engaged in the lawful execution of a legal duty when he ordered him to stop as the evidence failed to establish that appellant was trespassing. Because the facts and circumstances in this case warranted a reasonable suspicion on the part of the arresting officer that appellant was committing the offense of trespass, we affirm this adjudication of guilt.

The May 7, 2010 Charges (W10-2760)

With respect to ■ the May 7, 2010 charges, the evidence reflected that at about 9:30 p.m., Officer Knight entered Nola’s Plaza. Businesses in the plaza, including Nola’s Pizza, were open at the time. A sign with the words “no trespassing” was posted on the front of the building, nearest the check cashing store at the eastern end. The eastern side of the building was posted with a “no trespassing” sign and a sign with the words “no loitering or soliciting on this property.” Officer Knight saw four individuals, including appellant, at the east side of the building and “on the sidewalk right — kind of like next to the walk” and “like right there by the check cashing store.” Photographs of the signs and the relevant area of the plaza were introduced.

Officer Knight approached the group, identified himself as a police officer, and asked why they were loitering around the business. Appellant replied they were “just hanging out.” The officer asked everyone for ID and, if they did not have ID, then for their name and date of birth. Appellant told the officer his name was Dwayne Thomas, Jr. Officer Knight called this information into dispatch. While awaiting a response, Officer D’Angelo arrived. Officer D’Angelo was familiar with appellant and knew his name. Officer Sentimont attempted to arrest and handcuff appellant. Appellant began swinging his arms to avoid being cuffed. Based on the foregoing events, appellant was charged with trespassing and providing a false name to the police. The trial court denied appellant’s motion for judgment of dismissal as to both charges and that ruling is challenged in this appeal.

Providing a False Name

Section 901.36(1), Florida Statutes (2010), states “[i]t is unlawful for a person who has been arrested or lawfully detained by a law enforcement officer to give a false name.... ” Lawful detention is thus a condition precedent to the crime of giving a false name to a police officer. See also K.D. v. State, 43 So.3d 829, 829 (Fla. 1st DCA 2010). Appellant insists he was entitled to a judgment of dismissal on the charge as he and the officer were engaged in a consensual encounter, not a detention or arrest, at the time he gave the false name.

“A detention does not occur simply because an officer approaches and asks questions, or requests to examine identification.” Brevick v. State, 965 So.2d 1246, 1249 (Fla. 5th DCA 2007). Contact with police rises to the level of a detention “when, ‘in view of all the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.’ ” Id. (quoting Voorhees v. State, 699 So.2d 602, 608 (Fla.1997)). “ ‘An officer may address questions to anyone on the street, and unless the officer attempts to prevent the citizen from exercising his right to walk away, such questioning will usually constitute a consensual encounter rather than a stop.’ ” Mays v. State, 887 So.2d 402, 403 (Fla. 2d DCA 2004) (quoting State v. Mitchell, 638 So.2d 1015, 1016 (Fla. 2d DCA 1994)), approved, 959 So.2d 216 (Fla.2007). Factors that might indicate a seizure include “the ‘threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” State v. Dixon, 976 So.2d 1206, 1209 (Fla. 4th DCA 2008) (quoting P.W. v. State, 965 So.2d 1197, 1199 (Fla. 4th DCA 2007)).

Here, appellant and his companions were approached and questioned by a single officer. The officer asked for ID and names — an action permissible within the confines of a consensual encounter. There was no evidence that the officer in any way restrained appellant’s freedom of movement, made a show of authority, or in any way indicated to appellant and his friends that they were not free to leave. Thus, at the time appellant provided the false name, the officer and appellant were engaged in a consensual encounter. See State v. Page, 73 So.3d 351 (Fla. 4th DCA 2011) (holding contact was consensual encounter where officers approached appellant, who was standing on side of building, asked for name and date of birth and did warrants check based on information provided); O.A. v. State, 754 So.2d 717 (Fla. 4th DCA 1998) (holding appellant and officer were engaged in consensual encounter when officers investigating traffic incident asked a passing-by appellant for his name and why he was out at such an hour and awaited response from dispatch). Because appellant provided the officer with a false name during a consensual encounter, and not a lawful detention or arrest, he could not be guilty of the crime of providing a false name to an officer and was entitled to a judgment of dismissal on the charge.

Resisting an Officer Without Violence

To obtain a conviction for resisting an officer without violence, the State must prove (1) that the officer was engaged in the lawful execution of a legal duty and (2) that appellant’s actions amounted to obstruction or resistance of that lawful duty. See Slydell v. State, 792 So.2d 667, 672 (Fla. 4th DCA 2001). Appellant insists the evidence is insufficient to satisfy the first prong, arguing that because he provided the false name to police during a consensual encounter, he could not lawfully be arrested for such offense and that he also could not lawfully be arrested for the crime of trespass as the officer lacked the probable cause necessary to justify an arrest for trespass. Having already resolved the first of these arguments in favor of appellant, we turn to his claim that police lacked probable cause to arrest him for trespass.

To be guilty of trespass on property other than a structure or conveyance, appellant must have been given notice against entry. See § 810.09(1), Fla. Stat. (2010). This notice may be accomplished by either “actual communication” to appellant or by “posting” the property as that term is defined by statute. See § 810.09(1)(a)1, Fla. Stat.; see also Ward v. State, 21 So.3d 896 (Fla. 5th DCA 2009). The statutory requirements for posting are very specific, requiring signs placed at specific locations, at specific heights, and in type of a certain size. See § 810.011(5), Fla. Stat. In the absence of this prior warning by communication or “posting,” a police officer may initiate a consensual encounter to issue a trespass warning if he has been authorized to do so by the property owner, but he may not detain or arrest for trespass. See Gestewitz v. State, 34 So.3d 832, 834 (Fla. 4th DCA 2010).

As to this May 7, 2010 incident, there was no evidence that any prior “actual communication” of a trespass warning had been given to appellant. The probable cause necessary to justify an arrest of appellant for trespass could thus have arisen only as a consequence of the “no trespassing” signs posted on the front of the building near the check cashing store and along the eastern sidewall of the building. In order for the posted signs to provide the required notice against entry and to give rise to probable cause to arrest for trespass, there must be evidence that the signs complied with section 810.011(5) and that the property was “posted” within the meaning of the statute. See Baker v. State, 813 So.2d 1044 (Fla. 4th DCA 2002) (holding police lacked probable cause to arrest for trespass where property owner placed “no trespassing” sign in lawn of the middle unit of the three duplexes he owned; police saw appellant on lawn of adjoining property; and there was no evidence of prior trespass warning to appellant or that property was “posted” within the meaning of the statute as “no trespassing” signs were not placed at each corner and along the boundary line); Smith v. State, 778 So.2d 329 (Fla. 2d DCA 2000) (holding police lacked probable cause to arrest appellant for trespass in parking lot of convenience store as there was no evidence of prior “actual communication” of a trespass warning to appellant and, although a “no trespassing” sign was posted, the property was not “posted” as required by the statute).

The photographs of, and testimony concerning, the “no trespassing” signs in this case were insufficient to establish the property was “posted” within the meaning of the statute and thus insufficient to give the officer probable cause to arrest appellant for trespass. As a result, the officer was not engaged in the lawful execution of a legal duty when appellant resisted the officer’s attempt to cuff him by swinging his arms. Appellant was thus entitled to a judgment of dismissal on the charge.

The October 15, 2009 Resisting an Officer Without Violence (WlO-2761)

At the close of the State’s case, the evidence was that on October 15, 2009, at about 10:30 p.m., Officer D’Angelo was patrolling in the area of Nola’s Plaza. Nola’s Pizza is in that plaza and was open at the time. The doors to the businesses face a sidewalk and the parking lot is beyond the sidewalk. On the east side of the plaza, there is a “gap” and, as a consequence of back-and-forth activity, police monitored the area. Appellant was observed by Officer D’Angelo, not in front of the open pizza place, but on the east side of the building and “next to” the shopping plaza, where there are “no loitering” and “no trespassing” signs. Officer D’Angelo testified that, on two prior occasions, he observed appellant in that exact location and instructed him about the “no trespassing” signs. As the officer pulled into the plaza, appellant looked directly at the patrol car, grabbed his backpack and began walking east toward an apartment complex. The officer called for appellant to stop. Appellant continued to quickly walk away, despite the officer’s ordering him to stop two or three more times.

When the State rested, appellant moved for a judgment of dismissal, arguing the State had failed to prove the officer was engaged in the lawful execution of a legal duty as the evidence failed to establish the officer had the reasonable suspicion necessary to justify appellant’s detention. Appellant pointed to the lack of evidence establishing that the property owner had given police permission to issue trespass warnings or that the property was “posted” within the meaning of the trespass statute. The trial court deferred ruling on the motion and, during his case, appellant introduced photographs of a “no trespassing” sign on the front wall of the building and the signs on the side of the building. The trial court denied the renewed motion for judgment of acquittal.

In the absence of evidence that the property owner had given police permission to issue trespass warnings or that the property was “posted” within the meaning of the trespass statute, appellant could not be convicted of trespass. See W.J. v. State, 18 So.3d 1259 (Fla. 3d DCA 2009) (noting appellant obtained judgment of dismissal on trespass charge because State failed to present evidence that officer who previously warned appellant against trespass had authority to give such warning); Smith v. State, 778 So.2d at 331 (reversing where no evidence that anyone, owner or police, had previously warned appellant not to trespass and no evidence “no trespassing” signs complied with statute); In re B.P., 610 So.2d 625 (Fla. 1st DCA 1992) (holding appellant entitled to judgment of acquittal where no evidence signs contained property owner’s name as required by statute). And, while we need not decide the issue, the absence of such evidence in this case may arguably preclude a finding of probable cause. Cf. Baker, 813 So.2d at 1045-46 (finding no probable cause to arrest for trespass where officer admitted he had not previously warned appellant against trespass and signs did not comply with statute); Wright v. State, 792 So.2d 1264, 1266 (Fla. 4th DCA 2001) (finding no probable cause to arrest for trespass as no prior trespass warnings had been given and property was not “posted” as required by the statute).

The issue, though, is not whether the evidence was sufficient to sustain a conviction for trespass or sufficient to give rise to probable cause to arrest for trespass. Rather, the issue is whether the evidence was sufficient to establish a reasonable suspicion of trespass so as to justify appellant’s detention. The “reasonable suspicion” necessary to justify a detention involves less than the “probable cause” required to arrest. See, e.g., Baptiste v. State, 995 So.2d 285, 291 (Fla.2008) (“ ‘Reasonable suspicion is a less demanding standard than probable cause not only in the sense that reasonable suspicion can be established with information that is different in quantity or content than that required to establish probable cause, but also in the sense that reasonable suspicion can arise from information that is less reliable than that required to show probable cause.’ ”) (quoting Alabama v. White, 496 U.S. 325, 330, 110 S.Ct. 2412, 110 L.Ed.2d 301 (1990)). Mere presence on the property is insufficient to give rise to a reasonable suspicion of trespass and a reasonable suspicion of trespass must be based upon something more than “a mere hunch or guess.” Rochell v. State, 934 So.2d 586, 586 (Fla. 1st DCA 2006).

That “something more” was found in Ward v. State, 21 So.3d 896 (Fla. 5th DCA 2009). There, police approached appellant at 2:30 a.m. on the grounds of an apartment complex posted with numerous, large “no trespassing” signs. Appellant acknowledged he was not a resident and was “cutting through.” The officer asked appellant for his name so he could issue a trespass warning. Upon giving two different spellings of the name, appellant was arrested for providing a false name to police and, during a search incident to arrest, police found a gun and cocaine. The Fifth District held the officer had a “reasonable suspicion” of trespass. The court rejected appellant’s claim that there could be no “reasonable suspicion” in the absence of evidence that the “no trespassing” signs complied with the statute, noting the issue was whether police had a reasonable suspicion of trespass to justify a stop and not whether the evidence was sufficient to sustain a conviction for the crime.

“Something more” was also found in W.J. v. State, 18 So.3d 1259 (Fla. 3d DCA 2009). There, police saw a group of boys shooting dice and placing bets at a public housing playground. The defendant was in the group, but police did not observe him gambling. Two days earlier, one of the officers had encountered the defendant on the same playground, instructing him to leave and warning that if he returned he would be arrested for trespass. When police exited their patrol car, the defendant and another fled. The defendant was caught and charged with resisting an officer without violence and trespass. The defendant obtained a judgment of dismissal on the trespass charge as the State failed to present evidence that the officer who warned the defendant to stay off the property had the authority to do so. The defendant was convicted of resisting an officer without violence and challenged his conviction, insisting the evidence also failed to establish police had either the reasonable suspicion necessary to justify a detention for trespass or the probable cause required to arrest him. The Third District rejected the argument.

In the instant case, it was 10:30 p.m. and the officer observed appellant not along the sidewalk (where the doors to the businesses were) or near the open pizza place, but on the side of the building. “No trespassing” and “no loitering” signs were posted on that side of the building. This particular area was patrolled because of a “gap” between the plaza and a neighboring apartment complex and, on two prior occasions, the officer found appellant in that same location and warned him against trespassing on the premises. As in Ward and W.J., we believe the circumstances gave rise to a reasonable suspicion of trespass so as to justify appellant’s detention. We thus reject appellant’s argument that the State failed to present evidence establishing the officer was engaged in the lawful execution of a legal duty — a necessary predicate for the resisting without violence conviction.

We are cognizant of F.E.H., Jr. v. State, 28 So.3d 213 (Fla. 4th DCA 2010), but find it distinguishable. There, police observed appellant and a companion in the corner of the open parking lot of a closed daycare center. A detective approached appellant, while four or five other officers walked past appellant to focus on others. Appellant began to walk away from the parking lot and the officer called him back. The detective then asked appellant if there was anything he needed to know, prompting appellant to hand over a bag of marijuana. Appellant moved to suppress the marijuana, arguing it was the fruit of an illegal detention. This court held the officer’s actions amounted to a seizure and rejected the State’s claim that the detention was justified by the detective’s reasonable suspicion of trespass. There was no evidence that the lot was “posted” within the meaning of the trespass statutes. In fact, the evidence was to the effect that the parking lot was open and frequently used by people walking down the street to “cut the corner.” Additionally, appellant had already left the premises at the time of the stop.

The open parking lot and evidence of its frequent use by passers-by in F.E.H., Jr. militated against finding a reasonable suspicion of trespass by appellant. In contrast, here, appellant was not standing out in the open parking lot, but next to the shopping plaza and near the “no trespassing” signs. And, unlike F.E.H., Jr., here, there was evidence appellant had twice been warned against trespass at this precise location.

Accordingly, appellant’s convictions for providing a false name to police and resisting an officer that arose out of the events of May 7, 2010 (4D10-2760) are reversed. The conviction for resisting an officer that arose out of the events of October 15, 2009 (4D10-2761) is, however, affirmed.

Affirmed in part and Reversed in part.

WARNER and CONNER, JJ., concur.

      . Section 810.011(5), Florida Statutes, provides as follows:
      (5)(a) "Posted land” is that land upon which:
      1. Signs are placed not more than 500 feet apart along, and at each corner of, the boundaries of the land, upon which signs there appears prominently, in letters of not less than 2 inches in height, the words "no trespassing” and in addition thereto the name of the owner, lessee, or occupant of said land. Said signs shall be placed along the boundary line of posted land in a manner and in such position as to be clearly noticeable from outside the boundary line; or
      2. a. Conspicuous no trespassing notice is painted on trees or posts on the property, provided that the notice is:
      (I)Painted in an international orange color and displaying the stenciled words "No Trespassing” in letters no less than 2 inches high and 1 inch wide either vertically or horizontally;
      (II) Placed so that the bottom of the painted notice is not less than 3 feet from the ground or more than 5 feet from the ground; and
      (III) Placed at locations that are readily visible to any person approaching the property and no more than 500 feet apart on agricultural land.
      b. Beginning October 1, 2007, when a landowner uses the painted no trespassing posting to identify a "no trespassing” area, those painted notices shall be accompanied by signs complying with subparagraph 1. and placed conspicuously at all places where entry to the property is normally expected or known to occur.

      . The State suggests the resisting without violence conviction can be affirmed under the theory that the resistance was appellant's giving of a false name and that this resistance occurred during the officer's execution of his lawful duty to investigate the trespass and/or issue a trespass warning. This argument is based upon a theory not charged in the petition for delinquency as appellant was charged with resisting Officer Sentimont — not Officer Knight, the officer to whom appellant provided the false name. Moreover, until such time as appellant was detained (and not just involved in a consensual encounter), he had no legal obligation to identify himself to police. See S.N.J. v. State, 17 So.3d 1258 (Fla. 2d DCA 2009).


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Larry HARDEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2615.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Appellant, Larry Harden, appeals his convictions for sexual battery, false imprisonment, and domestic battery. Because the trial court abused its discretion in admitting evidence of a prior incident of domestic violence that served only to show propensity, we reverse for a new trial. We also write to address an evidentiary issue likely to arise again on retrial.

Appellant was accused of beating and raping his then-girlfriend, K.W., in a motel room following an argument in which appellant accused K.W. of sleeping with someone else. Before trial, the prosecutor notified the trial court that he intended to ask K.W. about her relationship with appellant, including a prior domestic violence incident that occurred about six months before the alleged rape. Defense counsel objected to evidence of the prior incident on grounds of relevance, prejudice, and lack of notice. Defense counsel further argued that the standard was not merely whether there was relevancy, but whether the prejudice outweighed the probative value. The trial court found that the evidence was admissible as probative of appellant’s motive and intent, relying on Nicholson v. State, 10 So.3d 142 (Fla. 4th DCA 2009). Evidence of the prior act was admitted at trial. The jury convicted appellant of sexual battery, false imprisonment, and domestic battery.

On appeal, appellant argues that the trial court abused its discretion in admitting evidence of the prior act of physical violence towards K.W. The state suggests that this issue was not preserved because appellant raised only a “leading” objection at trial when the prosecutor asked about the prior incident and because appellant did not specifically argue that the victim’s testimony was “evidence of other bad acts which served only to show propensity to commit crime.” On the merits, the state argues that the evidence of the prior incident was relevant to establish appellant’s intent and motive.

As a preliminary matter, we find that this issue was preserved. Notwithstanding the fact that defense counsel did not use the magic word “propensity,” it is apparent that defense counsel’s articulated concern was sufficiently specific to inform the trial court of the alleged error. See Conner v. State, 987 So.2d 130, 133 (Fla. 2d DCA 2008) (explaining that “no magic words” are required when making an objection and that an issue is preserved for appeal if the attorney’s articulated concern is sufficiently specific to inform the court of the alleged error). Moreover, defense counsel’s pretrial arguments were sufficient to preserve this issue for appellate review where the trial court made a definitive ruling on the record. See McWatters v. State, 36 So.3d 613, 627 (Fla.2010) (“Moreover, McWatters preserved his objection for review by obtaining a pretrial ruling on the admissibility of the evidence.”); § 90.104(1), Fla. Stat. (2009) (“If the court has made a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”).

Turning to the merits, we first note that a trial court’s ruling on the admissibility of evidence is reviewed for an abuse of discretion. McCall v. State, 941 So.2d 1280, 1283 (Fla. 4th DCA 2006). The trial court’s discretion, however, is limited by the rules of evidence. Id.

Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2009). Generally, any evidence relevant to prove a fact at issue is admissible unless precluded by a specific rule of exclusion. See State v. Williams, 992 So.2d 330, 333 (Fla. 3d DCA 2008); see also § 90.402, Fla. Stat. (2008). However, even if evidence is relevant, it is inadmissible “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403, Fla. Stat. (2009).

Similar fact evidence of collateral crimes, wrongs, or acts “is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.” § 90.404(2)(a), Fla. Stat. (2009). Thus, evidence of other crimes is admissible where such evidence “tends to disprove a defendant’s theory of defense or attempt to explain his intent.” Gould v. State, 942 So.2d 465, 467 (Fla. 4th DCA 2006).

Evidence of other crimes is not, however, limited to other crimes with similar facts. See Sexton v. State, 697 So.2d 833, 836-37 (Fla.1997). “[Ejvidence of bad acts or crimes is admissible without regard to whether it is similar fact evidence if it is relevant to establish a material issue.” Pittman v. State, 646 So.2d 167, 170 (Fla.1994). As our supreme court explained:

So-called similar fact crimes are merely a special application of the general rule that all relevant evidence is admissible unless specifically excluded by a rule of evidence. The requirement that similar fact crimes contain similar facts to the charged crime is based on the requirement to show relevancy. This does not bar the introduction of evidence of other crimes which are factually dissimilar to the charged crime if the evidence of other crimes is relevant.

Bryan v. State, 533 So.2d 744, 746 (Fla.1988).

In Dennis v. State, 817 So.2d 741 (Fla.2002), the Florida Supreme Court held that the trial court properly admitted evidence that the defendant previously stalked, threatened, and assaulted the woman whom he was charged with murdering. In affirming the admission of the evidence, the court cited Sexton and held that “the nature of Dennis’s relationship with the victim was relevant to establish Dennis’s motive.” Id. at 762.

Accordingly, even if prior bad acts do not bear a striking similarity to the charged offenses, the prior acts are admissible if they are relevant to show motive and intent. See Nicholson, 10 So.3d at 145-16 (holding that, in the defendant’s trial for the murder of his ex-wife, evidence of the defendant’s prior bad acts committed against victim were admissible to show the defendant’s motive and intent even though they were not sufficiently similar to the charged offense to warrant introduction for purposes of identity); State v. Wright, 74 So.3d 503, 505-06 (Fla. 2d DCA 2011) (holding that, in the prosecution of the defendant for armed kidnapping of the victim, evidence of the defendant’s prior acts of domestic violence against the victim was relevant to the issues of motive and intent, and that the probative value of the evidence outweighed the prejudicial effect).

However, where intent or motive is not a material fact at issue, the collateral crime evidence cannot be admitted for the purpose of showing intent or motive. See Pratt v. State, 1 So.3d 1169 (Fla. 4th DCA 2009). In Pratt, this court held that in a prosecution for aggravated battery of the defendant’s wife and daughter, it was error to admit evidence of three prior beatings of the wife by defendant during the preceding eighteen months. We explained:

In the circumstances of this case, these earlier incidents of violence do nothing more than demonstrate his propensity for violence with his family members. Neither party did anything to make motive or intent significant to any contested fact. No one suggested any factual issue as to a specific reason for battering the two women. Nor did he claim that his actions were by mistake. Motive, intent and mistake were simply not made pertinent issues in the trial.

Id. at 1170 (emphasis added); accord Herbert v. State, 526 So.2d 709 (Fla. 4th DCA 1988) (in prosecution for aggravated child abuse, error to admit evidence of an earlier beating of the same child; there was no dispute at trial as to the identity, motive, or knowledge of the defendant in beating her son with a belt, and the only issue in dispute was whether or not the beating constituted a crime).

Here, unlike in a murder case such as Nicholson, motive and intent were not particularly pertinent issues in the trial. As our supreme court has explained: “State of mind is not a material fact in a sexual battery charge, nor is intent an issue.” Coler v. State, 418 So.2d 238, 239 (Fla.1982). Likewise, the Second District has held that, in a prosecution against the defendant for sexual battery of his then spouse, it was error to admit a prior incident in which the defendant slapped his spouse, “because the perpetrator’s state of mind is not an issue in a sexual battery case.” Hebel v. State, 765 So.2d 143, 145 (Fla. 2d DCA 2000).

In the case at bar, the earlier incident of domestic violence did nothing more than demonstrate appellant’s propensity for violence against his girlfriend. The primary contested fact in this case was whether appellant’s girlfriend consented to the sex; appellant’s motive or intent was not significant to any contested fact. See id. at 145. Even if the prior domestic violence incident had some marginal relevance in showing why K.M. delayed reporting the alleged sexual battery, this relevance was substantially outweighed by the danger of unfair prejudice. The prior bad act was unfairly prejudicial because it was classic propensity evidence that showed appellant’s bad character. Furthermore, on this record, we cannot say that the error was harmless. See Goodwin v. State, 751 So.2d 537, 547 (Fla.1999) (erroneous admission of collateral crimes is presumptively harmful error); State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (“The harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction.”).

Appellant also argues that the trial court reversibly erred in refusing to allow him to question K.M. regarding MySpace messages she sent to appellant’s new girlfriend after the alleged sexual battery occurred, thereby denying him a full and fair opportunity to cross-examine the witness about her bias or motive to be untruthful. We address this issue for the benefit of the trial court upon retrial.

Before trial, appellant filed a notice to admit business records regarding messages sent — after the alleged rape — from the MySpace account of the alleged victim, K.W., to appellant’s new girlfriend, Kayla. The state moved in limine to preclude the admission of the MySpace messages, and the trial court held a hearing on the matter. At the heai'ing, K.W. admitted in her testimony that she sent the messages over MySpace to Kayla. In the messages, K.W. told Kayla, among other things, that she was “ugly” and that her “vagina was like a swimming pool.” K.W. also wrote that “I’m too beautiful for you to compete, you look like a F’g gorilla, for real dog, you should try something about that shit, Larry is ... a F-boy.” K.W. also admitted that one of the messages stated that, “Larry’s ladies, you hoes don’t stand a chance.” K.W. claimed that she sent the messages in response to messages from Kayla. K.W. explained that Kayla had threatened to beat her up and even followed her home after appellant’s first court appearance. K.M. testified that she wrote the messages to let Kayla know she would not be intimidated.

Defense counsel argued that the messages were relevant to KW.’s credibility because they were sent within weeks of the alleged sexual assault and supported the defense theory that the alleged victim was a jealous ex-girlfriend. Defense counsel claimed that “we asked MySpace for everything, and they sent us what they said they had.” Defense counsel admitted the defense had received the messages in 2008 from MySpace, and that the messages were not turned over to the prosecution until the Tuesday or Wednesday before trial.

At the end of the pretrial hearing, the trial court ruled that K.W.’s MySpace messages were inadmissible because 1) the prejudice of the messages outweighed their probative value, 2) the messages, which the defense had subpoenaed, were not turned over to the prosecution in a timely manner, and 3) the rule of completeness precluded the admission of the messages because “some of these emails are clearly responsive to other emails, and without having those other emails, they are out of context.”

While a trial court’s evidentia-ry rulings are reviewed for an abuse of discretion, it is also “clear that a defendant in a criminal case has a constitutional right to a full and fair cross-examination of his accuser.” Taylor v. State, 623 So.2d 832, 833 (Fla. 4th DCA 1993). A party may attack the credibility of a witness by showing that he or she is biased. Id.; Chatman v. State, 687 So.2d 860, 862 (Fla. 1st DCA 1997). “The courts have repeatedly held that a defendant has the right to fully cross-examine a State’s witness to reveal bias and any improper motive the witness may have had in testifying against the defendant.” Powe v. State, 413 So.2d 1272, 1273 (Fla. 1st DCA 1982). However, “[e]vidence of bias may be inadmissible if it unfairly prejudices the trier of fact against the witness or misleads the trier of fact.” Breedlove v. State, 580 So.2d 605, 609 (Fla.1991).

Here, we find that the MySpace messages were relevant because they demonstrated bias and supported the defense theory that K.M. was a jealous ex-girlfriend with a motive to lie. Moreover, we cannot agree with the trial court’s conclusion that the probative value of the messages was substantially outweighed by the danger of unfair prejudice. Here, while K.M. may be embarrassed that she sent the messages, we fail to see how the messages were unfairly prejudicial to the state.

Furthermore, because we are ordering a new trial, the prosecution will not be unfairly surprised by the messages. Thus, the issue as to whether the defense failed to timely turn the messages over to the prosecution is now moot. We do, however, address the “rule of completeness,” which was the trial court’s final basis for excluding the messages.

The rule of completeness is codified in section 90.108(1), Florida Statutes (2009), which provides that “[w]hen a writing or recorded statement or part thereof is introduced by a party, an adverse party may require him or her at that time to introduce any other part or any other writing or recorded statement that in fairness ought to be considered contemporaneously.” The purpose of the rule is to avoid the potential for creating misleading impressions by taking statements out of context. Larzelere v. State, 676 So.2d 394, 401 (Fla.1996). However, the rule of completeness has not been interpreted to require exclusion of evidence where only portions of a written or recorded statement are available. See, e.g., State v. Hall, 194 N.C.App. 42, 50-51, 669 S.E.2d 30, 36-37 (2008) (explaining that even where portions of a statement are inaudible or inadvertently destroyed, the rule of completeness has not been interpreted to require exclusion of the remaining portions of the statement; the court may in its discretion admit the other portions of the statement); United States v. Thompson, 2009 WL 331482 (E.D.Ky.2009) (finding the rule of completeness inapplicable where the government introduced a thirty-second news clip featuring portions of a reporter’s interview of the defendant that lasted almost thirty minutes; the government was not in possession of the entire interview, the other portions of the interview were unavailable, and the fact that the defendant may have said something else during the interview did not implicate the rule of completeness).

Here, if the parties are able to produce the MySpace messages that Kayla sent to K.W., then those messages should be admitted — alongside KW.’s MySpace messages — under the rule of completeness. However, if Kayla’s MySpace messages to K.W. are unavailable, the rule of completeness does not mandate the exclusion of the messages that K.W. sent to Kayla. Rather, the state may elicit testimony that K.W.’s MySpace messages were sent in response to threatening messages from Kayla. See United States v. Bellomo, 176 F.3d 580, 586 (2d Cir.1999) (statements offered as evidence of commands or threats directed to the witness, rather than for the truth of the matter asserted, are not hearsay); see also State v. Holland, 76 So.3d 1032, 1034 (Fla. 4th DCA 2011) (“Verbal acts are not hearsay because they are admitted to show they were actually made and not to prove the truth of what was asserted therein.”). This solution will avoid the potential for creating a misleading impression and will allow the jury to accurately perceive the entire context surrounding K.W.’s MySpace messages.

In summary, we reverse appellant’s convictions and remand for a new trial consistent with this opinion.

Reversed for a new trial.

CIKLIN and GERBER, JJ., concur.

      . To the extent that the trial court may have believed the messages should also be excluded as hearsay, the trial court was incorrect. Subsection 90.801(l)(c), Florida Statutes (2009), defines “hearsay” as a “statement other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” The Florida Supreme Court has recognized that a statement may “be offered to prove a variety of things besides its truth.” Foster v. State, 778 So.2d 906, 914-15 (Fla.2000). When a statement is not offered for the truth of its contents, but to prove a material issue in a case, it is not hearsay. Id. at 915. One recognized non-hearsay use of an out of court statement is to "show motive.” Eugene v. State, 53 So.3d 1104, 1109 (Fla. 4th DCA 2011). Here, appellant is correct that the messages were non-hearsay because they were not being offered for the truth of the matter asserted — e.g., that appellant’s new girlfriend was ugly — but rather were being offered for the non-hearsay purpose to establish that the victim was a jealous ex-girlfriend.


author: MARSTILLER, J.

text:
    T.S., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-5563.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Katherine Debriere, Newberry, for Appellant.
    Melissa Ellen Dinwoodie, Tallahassee, for Appellee.
   MARSTILLER, J.

Appellant is a developmentally disabled client of the Agency for Persons with Disabilities (“Agency”), receiving services through the Home and Community-Based (“HCB”) Services Medicaid Waiver Program. He asserts that the Agency’s final order assigning him to Tier Three of the program instead of Tier One must be reversed under this court’s decision in Newsome v. Agency for Persons with Disabilities, 76 So.3d 972 (Fla. 1st DCA 2011). We agree.

The Agency approved as medically necessary for Appellant the following services comprising his annual cost plan for July 1, 2010, through June 30, 2011: supported living coaching ($16,452.80); adult dental care ($1,415.00); waiver support coordination ($1,571.40); specialized mental health counseling ($133.55); behavioral therapy ($7,618.56); companion services ($20,-152.60); and personal emergency response monitoring ($300). The total annual cost for these services was $47,643.91.

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

In May 2010, the Agency notified Appellant of his assignment to Tier Three. Appellant challenged the assignment, arguing that he qualifies for placement in Tier One, which is limited to clients whose intensive medical and adaptive service needs are essential for avoiding institutionalization and cannot be met in the lower tiers, and clients with exceptional behavioral problems who present a substantial risk of harm to themselves or others. See § 393.0661(3)(a), Fla. Stat. (2009); Fla. Admin. Code R. 65G-4.0027(1). At the time of Appellant’s initial tier assignment, Tier One had no expenditure limit, while the limit for Tier Three was $35,000. See §§ 393.0661(3)(a), (c), Fla. Stat. (2009). The annual limits are now $150,000 and $34,125, respectively. See §§ 393.0661(3)(a), (c), Fla. Stat. (2010).

Evidence presented at the administrative hearing on Appellant’s challenge revealed the method the Agency used to assign Appellant to Tier Three. The hearing officer summarized the overall tier assignment process thusly:

The factors to be considered in determining a client’s appropriate tier assignment are found in Fla. Admin. Code R. 65G-4.0026(1). APD has promulgated this Rule and adopted provisions from Fla. Stat. § 409.906(13), Fla. Stat. § 393.0661, Fla. Admin. Code R. 59G-13.080, and Fla. Admin. Code R. 59G-13.083. APD must assign clients based on their needs as reflected in their Support Plan, QSI [Questionnaire for Situational Information], and the services authorized on their Cost Plan. Any services authorized in an approved cost plan are key indicators of a tier assignment because they directly reflect the level of medical, adaptive, or behavioral needs of a client. Additionally, the only needs to be considered when making a tier assignment include only those services approved through the prior service authorization process to be medically necessary. APD will also take into consideration the client’s current living setting and the availability of supports and services from other sources, including Medicaid state plan and other federal, state, and local programs as well as natural and community supports.

The hearing officer found that Appellant, who suffers mental retardation and epilepsy, has exceptional behavioral problems and is a substantial risk to himself and others. Thus, Appellant meets the second statutory criterion for Tier One. Rule 65Gb4.0027(l)(b), Florida Administrative Code, provides that such clients whose “resulting service needs [ ] cannot be met in Tiers Two, Three, and Four” will be placed in Tier One. Under rules 65G-4.0026O) and 65G-4.0027(4), Florida Administrative Code, the Agency considers the approved, medically necessary services in the client’s cost plan to determine whether the client’s needs can be met through a lower tier. Rule 65G-40027(4) lists 17 services that “will be used as the primary basis for making an assignment[.]” See Fla. Admin. Code R. 65G-4.0027(4)(a)-(q). These services are only a subset, however, of those available to clients pursuant to the “Florida Medicaid Developmental Disabilities Waiver Services Coverage and Limitations Handbook, November 2010.” See Fla. Admin. Code R. 59G-13.083(2).

Only three of the seven approved medically necessary services in Appellant’s cost plan — behavioral analysis, supported living coaching, and specialized mental health services — are on the list in rule 65G-4.0027(4). The Agency considered just those three, as well as waiver support coordination, which all waiver clients apparently must receive, and determined that the $25,776.31 combined cost of those services fell within the $34,125 expenditure limit for Tier Three. Concluding that Appellant’s needs thus could be met in Tier Three, the Agency placed him there instead of in Tier One.

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

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

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

In the instant case, the Agency posits that rule 65G-4.0027(4) reflects a policy determination that the listed services reflect intense medical, adaptive, or behavioral needs. This determination we do not question. But as we pointed out in Newsome, those services are the “primary basis,” not the sole basis, for a tier assignment. Every client is different and will have individualized service needs depending on the severity and combination of his or her disabilities. Thus, a client’s cost plan may include services not reflected in rule 65G-4.0027(4) that nonetheless are intended to meet his or her intense medical, adaptive, or behavioral needs. Hence, rule 65G-4.0026(l)(c) directs that “[t]he services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive or behavioral needs of a client.”

Although not listed in rule 65G-4.0027(4), Appellant’s cost plan includes $20,152.60 in annual companion services. Had the Agency also considered this service, the total cost of Appellant’s service needs would have exceeded the Tier Three expenditure limit, and Appellant would have qualified for placement in Tier One. The Agency asserts that it determined— and presented evidence proving — Appellant does not need the level of companion services reflected in his cost plan, and does not meet Tier One requirements, because his recent behavior reflects he is not a danger to himself or others. The hearing officer found to the contrary, however, stating in the recommended order:

Petitioner received an overall moderate score in the behavioral status section of the QSI with scoring in the areas of being aggressive to others, hurtful to others, and destructive to property. Additionally, Petitioner’s 2010 Support Plan references interventions by the criminal justice system and incarcerations in 2008 and 2009. Testimony was presented corroborating petitioner’s claim of exceptional behavioral problems. Petitioner currently receives the services of a behavior analyst and [sic] which has assisted petitioner’s supported living coach and companion in alleviating petitioner’s problematic behaviors. However, evidence establishes that petitioner continues to engage in verbal aggression; although the frequency is intermittent, the intensity and duration have previously necessitated law enforcement’s intervention and may very well again. Respondent’s contention that petitioner lacks exceptional behavioral problems uses a nearly insurmountable standard for any individual to meet. Upon review of the testimony and evidence, petitioner does have exceptional behavioral problems which present a substantial risk of harm to himself and others.

The Agency filed no exception to this finding and, indeed, adopted it in its final order. It cannot now take a contrary position. In light of the hearing officer’s unchallenged and adopted factual finding that Appellant possesses exceptional behavioral problems and presents a substantial risk of harm to himself or others, and based on our reasoning in Newsome, we conclude the Agency failed to demonstrate that Appellant’s needs can be met in Tier Three. For this reason, we reverse the final order on appeal and remand with directions that Appellant be assigned to Tier One.

REVERSED and REMANDED.

ROWE and SWANSON, JJ„ concur.

      . As of January 13, 2011, Appellant's revised cost plan, totaling $46,595.36, included behavioral analysis services ($7,618.56); companion services ($20,152.60); waiver support coordination ($1,571.40); supported living coaching ($16,452.80); adult dental services ($500); and personal emergency response service ($300). However, the Agency based its initial tier assignment on the July 1, 2010-June 30, 2011, cost plan.

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

      . We note an apparent inconsistency between section 393.0661(3)(a), Florida Statutes, and rule 65G-4.0027(1), Florida Administrative Code. The statute reads, in pertinent part:

        Tier one is limited to clients who have service needs that cannot be met in tier two, three, or four for intensive medical or adaptive needs and that are essential for avoiding institutionalization, or who possess behavioral problems that are exceptional in intensity, duration, or frequency and present a substantial risk of harm to themselves or others.
      The Agency's rule, on the other hand, states:
      The Tier One Waiver is limited to clients that the Agency has determined meet at least one of the following criteria:
      (a) The client’s needs for medical or adaptive services are intense and cannot be met in Tiers Two, Three, and Four and are essential for avoiding institutionalization, or
      (b) The client possesses behavioral problems that are exceptional in intensity, duration, or frequency with resulting service needs that cannot be met in Tiers Two, Three, and Four, and the client presents a substantial risk of harm to themselves or others.
      (Emphasis added.) The highlighted proviso in rule 65G-4.0027(l)(b), relating to clients with behavioral problems who risk harming themselves or others, does not appear also to be included in the statutory language. Thus, we question whether for such clients application of rule 65G-4.0027(4), as occurred in this case, is in accord with the statute.


author: PER CURIAM.

text:
    Leroy L. FIGURES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-6738.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Leroy L. Figures, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the July 19, 2011, order denying petitioner’s motion for postconviction relief in Okaloosa County Circuit Court case numbers 2010-CF-00548, 2010-CF-000630, 2010-CF-000631 and 2010-CF-000632, rendition of which was postponed pending rendition of the lower tribunal’s August 16, 2011, order denying petitioner’s motion for rehearing, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal.

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


text:
    Jenifer LOCKWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6036.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Jennifer Lockwood, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubiea, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, RAY, and MAKAR, JJ., concur.


text:
    Phillip Carnail BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-1479.
    District Court of Appeal of Florida, First District.
    May 23, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Angela R. Hensel and Donna A. Gerace, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


author: GERBER, J.

text:
    Ronald MELNIK, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 4D11-1965.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    J. David Bogenschutz of Bogenschutz, Dutko & Kroll, P.A., Fort Lauderdale, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for respondent.
   GERBER, J.

The defendant challenges the circuit court’s order denying bond. The defendant has filed that challenge as an appeal from a final order. The proper vehicle in which to have filed that challenge was as a petition for writ of habeas corpus. See Simeus v. Rambosk, — So.3d—, 2011 WL 3503504 (Fla. 2d DCA 2011) (“A petition for writ of habeas corpus is the proper vehicle to challenge an order of pretrial detention.”) (citations omitted). We treat the appeal as a petition for writ of habeas corpus. See Fla. R.App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought....”).

We deny the petition. “[W]hen a person accused of a capital offense or an offense punishable by life imprisonment seeks release on bail, it is within the discretion of the court to grant or deny bail when the proof of guilt is evident or the presumption great.” State v. Arthur, 390 So.2d 717, 717 (Fla.1980). After the state carries its burden of establishing that the proof of guilt is evident or the presumption great, “the burden is on the accused to demonstrate that release on bail is appropriate.” Id. at 720. Based on our review of the record, the state carried its burden of establishing that the proof of guilt is evident and the presumption great, and the defendant did not demonstrate that release on bail is appropriate.

Petition denied.

TAYLOR and CIKLIN, JJ., concur.


text:
    Kevin C. MOAN, Appellant, v. Krystle Ann CALHOUN, Appellee.
    No. 4D11-2056.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Kevin C. Moan, Jupiter, pro se.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370 (Fla. 4th DCA2011).

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


text:
    John P. FOUNTAS, Appellant, v. MICROCOMPUTER RESOURCES, INC. and Paul P. Fountas, Appellees.
    No. 4D10-3085.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Steven N. Lippman of Rice Pugatch Robinson & Schiller, P.A., Fort Lauder-dale, for appellant.
    Patrick S. Scott of GrayRobinson, P.A., Fort Lauderdale, for appellee Marika Tolz.
   PER CURIAM.

John P. Fountas (plaintiff) appeals the trial court’s award of attorney’s fees and costs in favor of Marika Tolz. The trial court concluded that Tolz was entitled to recover her reasonable attorney’s fees and costs under section 607.07401(5), Florida Statutes, because plaintiffs derivative action against Tolz was commenced without reasonable cause. During the course of this appeal, Ms. Tolz filed for bankruptcy. The trustee of Ms. Tolz’s bankruptcy estate represents that he does not intend to file a brief or otherwise defend this appeal, and consents to a reversal of the order appealed from, so long as no fees or costs are assessed against the bankruptcy estate. Upon concession of error, this Court, therefore, reverses the trial court’s award of attorney’s fees and costs.

Reversed and remanded.

WARNER, CIKLIN and CONNER, JJ., concur.

      . Wé note that there was no need to obtain relief from the automatic stay provisions of 11 U.S.C. § 362. The underlying final order on appeal was not an action against debtor Tolz, but the result of a motion for attorney’s fees and costs brought by Tolz. See W.W. Gay Mech. Contractor, Inc. v. Wharfside Two, Ltd., 545 So.2d 1348, 1350 (Fla.1989) ("The Bankruptcy Code stays proceedings against the debtor alone and does not address actions brought by the debtor which would inure to the benefit of the bankruptcy estate.”). Accordingly, this appeal may proceed.


text:
    Bonnie C. GRAY, Appellant, v. FORD MOTOR CREDIT COMPANY LLC, Appellee.
    No. 4D11-3655.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Bonnie C. Gray, Lake Worth, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. Appellant has not presented any arguable issues for reversal based upon the record before us. This affir-mance is without prejudice to the appellant’s filing a motion for relief from final judgment pursuant to Florida Rule of Civil Procedure 1.540(b), based upon her claim of lack of notice of the summary judgment proceedings, which she may do within one year of the rendition of the summary judgment.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


author: WARNER, J.

text:
    Rene O. ZELAYA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-91.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Rehearing Denied May 23, 2012.

      Carey Haughwout, Public Defender, and Amy Lora Rabinowitz, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion for Rehearing

WARNER, J.

We deny the motion for rehearing, withdraw our prior opinion and substitute the following in its place.

Appellant challenges the trial court’s order revoking his probation and sentencing him to five years in prison for failure to register as a sexual offender and one year for driving while license revoked — habitual offender. The court revoked his probation based upon the court’s finding that he committed a battery on a woman. He claims, however, that the court relied solely on hearsay. We disagree and affirm.

As relevant to this case, appellant, Rene Zelaya, was charged with violating his probation by committing a battery on a woman. At the hearing, the woman testified that she and Zelaya had gone for drinks and she had returned to his apartment and gone into Zelaya’s bedroom where they engaged in sexual intercourse. The prosecutor then asked if “at any time did he put his hands on you or push you or choke you that night?” She responded that afterward they “got into a little altercation.” Zelaya wanted her to leave the apartment, and she was not leaving quickly enough, so Zelaya pushed her to get her “stuff’ out. While she twice testified that he pushed her out of the apartment, and she was angry about him forcing her and her “stuff’ out, she did not remember any other contact. When confronted with her contrary statements to Zelaya’s probation officer, the victim simply said that she didn’t remember, and she might have embellished her story to the probation officer to get Zelaya in trouble.

Appellant’s probation officer testified that the victim told him that Zelaya choked and slapped her when she refused to have intercourse with him. They struggled, and then he tried to throw her out of the apartment with no clothes on. He then allowed her to get dressed, and when she left, she called the police.

The trial court found that appellant had committed a battery on the victim. It noted that it could not base its findings solely on hearsay, but it found the probation officer’s report of the incident more believable. Nevertheless, in both the probation officer’s account and in the account of the victim, each testified that Zelaya and the victim got into a struggle.

Appellant claims that since the probation officer’s recitation of the victim’s statements was hearsay, and the victim did not testify that appellant choked or slapped her, the state did not present any non-hearsay evidence to support the battery conviction. We disagree that the case involves solely hearsay evidence.

The trial court has broad discretion in determining whether a violation of probation has occurred and must consider all the particular facts and circumstances of the case to determine whether a violation is willful and substantial. Russell v. State, 982 So.2d 642, 646 (Fla.2008). While hearsay evidence is admissible in a probation revocation proceeding, hearsay alone cannot support a revocation of probation. Id.; see also Wilcox v. State, 770 So.2d 733, 736 (Fla. 4th DCA 2000). The hearsay evidence must be supported by some non-hearsay evidence. Russell, 982 So.2d at 646. Nevertheless, “[cjorroboration of every aspect should not be required in order to establish that the probationer committed a battery for the purpose of revoking probation.” Id. at 647.

Here the trial court found that appellant “put your hands on that woman” and did it “willfully and unjustly.” This finding is supported by the victim’s testimony itself in that she testified that appellant pushed her and that they engaged in a struggle. Moreover, the victim’s testimony was consistent with the probation officer’s testimony that the victim told him that she was engaged in a struggle with the appellant. Although it is apparent that the trial court also believed the probation officer’s recount of the victim’s other statements that appellant choked and slapped her, the court obviously knew that the battery could be proved by any intentional touching against the victim’s will. See § 784.03(1), Fla. Stat. That is what the court found, and competent substantial evidence supports the court’s findings.

Affirmed.

STEVENSON and CONNER, JJ„ concur.


text:
    Brian K. AYCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4898.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This court has previously held that mere evidence of the purchase price of an electronic device is insufficient to establish its current value. Lucky v. State, 25 So.3d 691, 691 (Fla. 4th DCA 2010). In the instant case, the only evidence offered to establish the value of a cell phone, which had been purchased a year and a half prior to the theft, was the owner’s testimony of the purchase price. As a result, the value of the cell phone at the time of the theft could not be established. Thus, the evidence was insufficient to prove grand theft. All other elements of theft were supported by sufficient evidence.

For the reasons set forth above, we reverse and remand to the trial court for entry of a judgment for petit theft in accordance with section 924.34, Florida Statutes (2006).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    David LUBIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1069.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    David Lubin, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

Appellant challenges the dismissal of his rule 3.850 motion for postconviction relief as premature. The trial judge concluded that she lacked jurisdiction to entertain the postconviction motion, in light of appellant’s pending appeal of the denial of a prior rule 3.850 motion. In light of our recent en banc opinion in Jackman v. State, 88 So.3d 325 (Fla. 4th DCA 2012), we reverse. See id. (“We adopt the rationale of Bryant [v. State, — So.3d—, 2012 WL 28713 (Fla. 2d DCA 2012)] and ... hold that a trial court has authority to consider or to defer ruling and stay a subsequently filed postconviction motion that raises unrelated issues, notwithstanding the pendency of an appeal of an order on a previously filed postconviction motion.”).

Reversed and remanded.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Minouche BAPTISTE, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3735.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.

      Hegel Laurent of Laurent Law Office, P.L., Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   On Motion to Review the Denial of a Motion for Post-Trial Release

PER CURIAM.

Appellant requests review of the lower court’s order denying motion for post-trial release. The order states no reasons for the denial and is, therefore, contrary to Florida Rule of Appellate Procedure 9.140(h)(3) and Florida Rule of Criminal Procedure 3.691(b). The State concedes that the matter must be remanded to the trial court to reconsider post-trial release and to make the necessary findings, if the lower court again denies bond. See Brown v. State, 82 So.3d 209, 211-12 (Fla. 4th DCA 2012); Metayer v. State, 52 So.3d 691, 692 (Fla. 4th DCA 2010); Dumas v. State, 889 So.2d 139, 140-41 (Fla. 4th DCA 2004).

Reversed and Remanded for further proceedings.

POLEN, GROSS and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    Stephen S. GREEN, Appellant, v. E.A. STEPP, et. al., Appellee.
    No. 4D10-5308.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Stephen S. Green, Okeechobee, pro se.
    Gregory A. Kummerlen of Wiederhold & Moses, P.A., West Palm Beach, for appel-lee.
   DAMOORGIAN, J.

Green appeals an order denying his motion for entry of default judgment. We dismiss for lack of jurisdiction. Rule 9.130(a)(3), Florida Rules of Appellate Procedure enumerates those non-final orders which are reviewable by the district courts. An order denying a motion for default is not one of the enumerated non-final orders which are subject to review under the rule.

Dismissed.

WARNER and CONNER, JJ., concur.


text:
    Randell LEIGHTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-5313.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2012.
    Randell Leighty, South B.ay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Defendant, Randell C. Leighty, appeals the circuit court’s order summarily denying his Rule 3.850 motion for postconviction relief as untimely. Defendant’s judgment and sentence were affirmed on March 5, 2008, in an authored opinion. See Leighty v. State, 981 So.2d 484 (Fla. 4th DCA 2008). The mandate issued on June 20, 2008. Defendant sought review in the Florida Supreme Court on July 7, 2008. The Court denied Defendant’s request for discretionary review on February 12, 2009. See Leighty v. State, 4 So.3d 1220 (Fla.2009). Defendant’s motion for postconviction relief was filed on December 6, 2010.

Because the motion was filed within two years from the date that the Supreme Court of Florida disposed of the petition for review, the motion should have been deemed timely. See Beaty v. State, 701 So.2d 856 (Fla.1997); Monfiston v. State, 54 So.3d 632 (Fla. 4th DCA 2011).

Accordingly, we reverse and remand for the circuit court to consider the Rule 3.850 motion on the merits.

Reversed and Remanded.

WARNER, TAYLOR and GERBER, JJ., concur.


text:
    D.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3065.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, and Patrick Colin McCardle, Certified Legal Intern, for appellee.
    Before WELLS, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. Wong, 990 So.2d 1154 (Fla. 3d DCA2008).


author: SUAREZ, J.

text:
    Quincy NUNN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-468.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Carlos J. Martinez, Public Defender, and Kathryn J. Strobach, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SUAREZ and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Affirmed. See C.E.L. v. State, 24 So.3d 1181 (Fla.2009).


text:
    D.H., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1352.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Lunar Claire Alvey, Assistant Attorney General, and Patrick Colin McCardle, Certified Legal Intern, for appellee.
    Before WELLS, C.J., and EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. Wong, 990 So.2d 1154 (Fla. 3d DCA 2008).


text:
    Eliozer VOLCIMUS, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D12-117, 3D12-110.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.

      Alberto A. Cayetano, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

The defendant appeals an order denying his post-conviction relief motion. In his motion the defendant argued that he was not afforded effective assistance of trial counsel because his counsel did not adequately warn him of the immigration consequences of his plea, as required by Padilla v. Kentucky, — U.S.—, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010). The trial court denied the defendant’s motion relying on Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010). In its response to the post-conviction motion, the State apparently failed to alert the trial court to this Court’s pronouncement in Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), finding conflict with Flores.

On the authority of Hernandez, we reverse the order and remand for an eviden-tiary hearing consistent with that opinion.

Reversed and remanded.

      . The defendant entered a plea and was sentenced after the date Padilla became final. Therefore this case presents no issue regarding the retroactive application of Padilla.


text:
    Santi ARANGO, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as Trustee Asset Backed Certificates, Series 2006-3, Appellee.
    No. 3D11-2872.
    District Court of Appeal of Florida, Third District.
    May 23, 2012.
    Santi Arango, in proper person.
    Carlton Fields, and Jack R. Reiter and Naomi M. Berry, Miami, for appellee.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.315(a).


author: BENTON, C.J. WOLF, J.,

text:
    Jonathan D. OGLE, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and DeVoe Automotive, Appellees.
    No. 1D11-4015.
    District Court of Appeal of Florida, First District.
    May 24, 2012.

      Jonathan D. Ogle, pro se, Appellant.
    A. Robert Whaley, General Counsel, and M. Elaine Howard, Deputy General Counsel, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
   BENTON, C.J.

Jonathan Ogle appeals an order of the Unemployment Appeals Commission (UAC) reversing the decision of an appeals referee that found him eligible for unemployment benefits. We reverse and remand with directions that the UAC adopt the appeals referee’s decision, and order, benefits accordingly.

On judicial review, the UAC’s order is entitled to a presumption of correctness, to be sure. See Kelle v. D.H. Holmes Co., Ltd., 658 So.2d 1161, 1162 (Fla. 2d DCA 1995). “Absent a clearly erroneous decision by the [UAC], the Commission’s decision cannot be overturned.” Wells v. Fla. Unemployment Appeals Comm’n, 767 So.2d 624, 625 (Fla. 3d DCA 2000). But the UAC must itself adhere to prescribed standards of review when it reviews a decision of the appeals referee:

The Commission’s standard of review of an appeals referee’s decision is whether the referee’s findings of fact are based on competent, substantial record evidence and whether the proceedings on which those findings are based complied with the essential requirements of law. The appeals referee, as the trier of fact, is privileged to weigh and reject conflicting evidence, and the Commission cannot reweigh the evidence and substitute its findings for those of the referee. Although the Commission may reject the referee’s conclusions of law without limitation, it may not modify the facts to reach a different legal conclusion, rely on facts that were not established at the hearing, or rely on a theory not advanced by one party or anticipated by the other. This Court cannot make credibility determinations or substitute its judgment for that of the referee and must uphold the appeals referee’s decision where there is competent, substantial evidence to support it.

Howell & O’Neal v. Fla. Unemployment Appeals Comm’n, 934 So.2d 570, 575 (Fla. 1st DCA 2006) (citations omitted). The UAC and, indeed, we ourselves are bound by the appeals referee’s findings of fact, unless the findings of fact are unsupported by competent, substantial evidence.

Mr. Ogle concedes he voluntarily quit his employment as a salesman at Dick DeVoe Buick Cadillac, Inc. (DeVoe), where he worked from September 7, 2010, to October 11, 2010. See Miller v. Fla. Unemployment Appeals Comm’n, 768 So.2d 1218, 1219 (Fla. 4th DCA 2000). He appeals the UAC’s determination that he was disqualified from receiving unemployment benefits, despite the appeals referee’s finding that his reason for quitting was attributable to the employer. “[Sjection 443.101(l)(a), Florida Statutes (2009), provides that an individual is not disqualified for unemployment benefits where the individual has ‘voluntarily left work with good cause attributable’ to the employer. § 443.101(l)(a), Fla. Stat. (2009). ‘Good cause’ includes cause attributable to the employer, which ‘as contemplated by the unemployment compensation law, describes that which would drive an average, able-bodied worker to quit his or her job.’ Recio [v. Kent See. Servs. Inc., 727 So.2d 320, 321 (Fla. 3d DCA 1999)]; Uniweld Prods., Inc. v. Indus. Relations Comm’n, 277 So.2d 827, 829 (Fla. 4th DCA 1973); Diaz v. Unemployment Appeals Comm’n, 31 So.3d 271, 272 (Fla. 5th DCA 2010).” Martinez v. Ford Midway Mall, Inc., 59 So.3d 168, 171 (Fla. 3d DCA 2011).

As a factual matter, the appeals referee concluded that Mr. Ogle established good cause for quitting attributable to his employer. The referee found — and competent, substantial evidence in the record supports the findings — that Mr. Ogle was not paid what was agreed at the time of hire: He was advised at the time of hire that he would be paid commissions for any week in which his sales commission exceeded the minimum wage for the week, but later found out that commissions would only be paid if the amount was in excess of the minimum wage amount for the month. This testimony was unrefuted, as nobody from the dealership testified at the hearing as to what Mr. Ogle was told at the time of hire. “[Misrepresenting the amount of salary to an employee or failure to comply with a salary agreement is sufficient cause to compel the average employee to leave his or her employment and, therefore, constitutes good cause attributable to the employer to justify an award of benefits to the employee.” Kelly v. Unemployment Appeals Comm’n, 823 So.2d 275, 279-80 (Fla. 5th DCA 2002).

At a telephone hearing, Mr. Ogle testified that he quit because the wages he received were not what he discussed and agreed to with the general sales manager who hired him. Mr. Ogle also testified that, as part of his wage package, he was promised database leads and access to the database, but that he never received any leads and his computer login never worked, so he never had access to the database. He testified that DeVoe paid a minimum wage draw, and “[i]f you reach the threshold of the minimum wage in the pay period, then you don’t take the minimum draw, you get paid your commission.” But, he testified, “they were taking back all the minimum wage because they were taking all the money back, and they were doing it outside of the pay period. And that’s not what I agreed to.” He testified that he did not realize there was a discrepancy until he sold a car during the last ten days of employment and then only when he received a paycheck that did not include the commission. He tried to speak to the sales manager who hired him, but the manager was fired the same day Mr. Ogle discovered the alleged underpayment.

Melinda Harrison, general manager for DeVoe Volvo Infinity, testified that she was not involved in hiring Mr. Ogle. But, she testified, the dealership had a uniform, written pay plan that was identical for every sales representative which, she was “confident,” stated that any commissions earned would be reduced or “used to recoup the draw” for the whole month, not just the week. Noting Ms. Harrison was not present when Mr. Ogle was hired and could not give a firsthand account of what he was told then, the referee made the following findings of fact:

The claimant worked for the employer, an automobile sales and service company, from September 7, 2010, until October 11, 2010, as a sales representative. The claimant was advised at time of hire that he would be paid minimum wage, and would be paid commissions for any week in which his sales commission amount exceeded the minimum wage pay. The claimant was also advised at time of hire that he would be given sales leads (contact information for former and prospective customers) and access to the employer’s database so that he could complete online training. The claimant received no leads, and his database login password never worked. The claimant addressed concern over these issues to his supervisor on several occasions, but no action was taken. During the claimant’s final ten days of employment, the claimant made a single sale, with a commission of approximately $300.00. The claimant then learned that commission pay would only be received if the amount was in excess of the minimum wage amount for the month, not the week. The claimant attempted to speak with his supervisor, but found that the supervisor had been discharged and replaced. The claimant did not discuss the issue with his new supervisor. The claimant resigned from the job on October 11, 2010.

The appeals referee concluded that, although Mr. Ogle was the “moving party in the separation,” he quit because he was “not given sales leads and database access as promised at time of hire, and because the pay arrangements differed from what was explained to the claimant at time of hire.” The referee concluded that the actual conditions of employment differed from the terms of employment offered to Mr. Ogle at the time of hire, so that he had good cause for quitting, attributable to his employer.

The UAC reversed the decision of the appeals referee. Without elaborating, it announced that the referee’s findings were not supported by competent, substantial evidence. The UAC added that “even if the employee arguably has ‘good cause’ to leave his or her employment, he or she may be disqualified from benefits based on a failure to expend reasonable effort to preserve his or her employment,” and found that, based on the record, it could not conclude that Mr. Ogle put forth a reasonable effort to preserve his employment prior to quitting. The UAC found that Mr. Ogle did not raise his concerns with his new supervisor or attempt to discuss the matter with Ms. Harrison.

An employee who quits with good cause attributable to his employer may nevertheless be disqualified from benefits, based on a failure to make reasonable efforts to preserve his or her employment. But an employee need only expend reasonable efforts. There must be a realistic possibility they will not be futile. See Glenn v. Fla. Unemployment Appeals Comm’n, 516 So.2d 88, 89 (Fla. 3d DCA 1987) (“Whenever feasible, an individual is expected to expend reasonable efforts to preserve his employment.”). For example, in Willick v. Unemployment Appeals Comm’n, 885 So.2d 440, 441 (Fla. 2d DCA 2004), Willick’s manager became upset at her and told her to leave the property. When she asked the president of the company, “Is this it?” he responded that it depended on the manager. Willick left the job site and did not speak with “the same manager who had become upset and hostile toward her when she previously discussed the situation with him, and had threatened to call the police if she did not leave the property.” Id. at 443.

The Second District distinguished the cases in which claimants were “confronted with clear allegations of misconduct” and were presented with “established grievance procedures ... as a means of challenging ... termination.” Id. The court found that Willick “was not presented with a feasible grievance procedure through which there was a reasonable possibility for her to preserve her employment,” and her “failure to pursue the frivolous step of speaking again with her manager d[id] not provide competent, substantial evidence that Willick voluntarily left her employment without good cause.” Id. Cf. Borakove v. Fla. Unemployment Appeals Comm’n, 14 So.3d 249, 251 (Fla. 1st DCA 2009) (upholding referee’s finding that claimant had not given his employer a reasonable opportunity to address his concerns and to offer accommodations or solutions before he quit after one day on the job); LawnCo Servs., Inc. v. Unemployment Appeals Comm’n, 946 So.2d 586, 588-89 (Fla. 4th DCA 2006) (upholding referee’s decision that claimant did not establish good cause to quit his job because he never advised his employer that he thought he was not being properly compensated and thus had not established that he made a reasonable and adequate effort to maintain and preserve the employment relationship).

Ms. Harrison testified that every sales representative at the dealership was under an identical, written pay plan. There was no evidence that any exception had ever been made or any reason to believe that any exception would ever be made. Given the testimony, the UAC had no basis to find that Mr. Ogle was obligated to discuss his dissatisfaction with the pay arrangement with his supervisor or with Ms. Harrison. Because the pay arrangement was the same for every sales representative, there is no reason to think that Mr. Ogle’s supervisor would have been willing or able to change the terms of his salary.

Although Ms. Harrison testified that Mr. Ogle never talked to her about an issue with the pay agreement, nobody testified that Mr. Ogle should have talked to her, or that there was any general procedure in place at the dealership for employees to use to complain about pay issues. See Belcher v. Unemployment Appeals Comm’n, 882 So.2d 486, 488-89 (Fla. 5th DCA 2004) (finding that “reasonable effort to preserve employment” requirement did not control where claimant quit physically demanding job without asking her supervisor for assistance or going to anyone above her supervisor to complain about working conditions). There was no evidence that any employee had ever been permitted to question the employer’s “pay plan.” The employer defended not on the ground that the employee could have negotiated a new salary arrangement but on the ground that he had not been misinformed about the arrangements under which he was hired. The appeals referee rejected this view of the facts.

In any event, the “reasonableness of the efforts to rectify is a matter for the finder of fact.” Kralj v. Fla. Unemployment Appeals Comm’n, 537 So.2d 201, 202 (Fla. 2d DCA 1989). In Kralj, the claimant was told she would be earning $24,000 by the end of her first year, but instead was earning $17,600. When she approached her immediate supervisor, he told her that he had checked with the personnel department and she was receiving the highest salary available for her classification. Id. The appeals referee found that Kralj had quit with good cause attributable to her employer, but the UAC reversed, finding that even though the employer breached the employment agreement, the claimant did not take all reasonable steps available to remedy the situation. The Second District reversed the UAC, finding that there was no established procedure for resolution of such problems. Id.

In the present case, too, the evidence did not reveal that DeVoe had a clearly established procedure for resolution of employee salary issues. In fact, Ms. Harrison’s testimony tended to show that there was no room within which such a procedure could operate. To the extent that the UAC’s statements that Ms. Harrison “gave unrefuted testimony that, despite an open door policy, the claimant never discussed any of his initial concerns with her prior to quitting,” and that Mr. Ogle “testified he felt it was his initial supervisor’s responsibility to raise his concerns to higher management,” constitute findings that Mr. Ogle did not use reasonable efforts to rectify his salary issue, the UAC “modified] the [appeals referee’s] facts to reach a different legal conclusion.” Howell & O’Neal, 934 So.2d at 575.

Reversed and remanded, with directions.

VAN NORTWICK, J., concurs; WOLF, J., concurs with opinion.

WOLF, J.,

concurring.

Normally the question of the sufficiency of an unemployment claimant’s efforts to preserve employment prior to quitting would involve questions of fact to be determined by the appeals referee. If the claimant’s efforts had been at issue, the proper remedy would be to remand the case for further factual determinations. As pointed out by the majority, the employer in this case did not defend based upon the lack of effort by the claimant to preserve his job. Under these unique circumstances, I concur in the court’s decision to award benefits.


text:
    Gary WILLIAMS, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-3257.
    District Court of Appeal of Florida, First District.
    May 24, 2012.
    Petition for Writ of Certiorari.
    Gary Williams, pro se, Petitioner.

      Pamela Jo Bondi, Attorney General, and C. Ian Garland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Gary Williams, an inmate serving a parole-eligible life sentence, appeals the denial of his petition for mandamus challenging a disciplinary report that resulted in him being placed in disciplinary confinement for 60 days. We treat the appeal as a petition invoking our certiorari jurisdiction, and deny the petition on the merits because the trial court did not depart from the essential requirements of law in determining that Williams failed to demonstrate any liberty interest implicating the protections of the Due Process Clause. See Sandin v. Conner, 515 U.S. 472, 486-87, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995) (holding that 30-day disciplinary confinement “did not present the type of atypical, significant deprivation in which a State might conceivably create a liberty interest,” and further stating that “[t]he chance that a finding of misconduct will alter the balance [in consideration of parole] is simply too attenuated to invoke the procedural guarantees of the Due Process Clause”).

DENIED.

DAVIS, WETHERELL, and SWANSON, JJ., concur.

         Sheley v. Fla. Parole Comm'n, 703 So.2d 1202 (Fla. 1st DCA 1997), approved by 720 So.2d 216 (Fla. 1998).


text:
    Greg JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-4808.
    District Court of Appeal of Florida, First District.
    May 24, 2012.
    Greg Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on May 3, 2011, in Jackson County Circuit Court case number 2009-831-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

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


text:
    Amos B. DICKEY, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3636.
    District Court of Appeal of Florida, First District.
    May 24, 2012.
    Amos P. Dickey, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on or about November 2, 2010, in Jackson County Circuit Court case number 07-33CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If appellant qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the appeal authorized by this opinion.

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


text:
    Lavario C. RAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0745.
    District Court of Appeal of Florida, First District.
    May 25, 2012.
    Lavario C. Ray, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See State v. Delva, 575 So.2d 643 (Fla.1991).

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


text:
    Stephen L. FURNEY, II, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2439.
    District Court of Appeal of Florida, First District.
    May 25, 2012.

      Stephen L. Furney, II, 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.

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


text:
    Joseph SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2193.
    District Court of Appeal of Florida, First District.
    May 25, 2012.
    Joseph 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.

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


text:
    Roy SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0800.
    District Court of Appeal of Florida, First District.
    May 25, 2012.
    Roy Simmons, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

PADOVANO, ROWE, and RAY, JJ., concur.