author: WEBSTER, J.

text:
    Kadeem Quaishawn HART, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D09-2300, 1D09-2302.
    District Court of Appeal of Florida, First District.
    May 13, 2011.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, and Michael S. Bos-sen, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

In these two consolidated direct criminal appeals, appellant presents three issues challenging his judgments of conviction and sentences imposed in case number 1D09-2300 for carjacking, and in case number 1D09-2302 for sexual battery, battery, kidnapping, aggravated battery with a deadly weapon and armed robbery. Without diminishing the brutal and terrifying manner in which these crimes were committed, we are constrained to reverse appellant’s convictions, vacate his sentences, and remand for new trials because the trial court abused its discretion in granting the state’s motions to join the offenses for a single trial pursuant to Florida Rule of Criminal Procedure 3.150(a). This ruling moots appellant’s remaining issues.

In trial court case number 16-2007-CF-1251-AXXX-MA, appellant was charged by fourth amended information with two counts of sexual battery during which he used force likely to cause serious personal injury and/or used a deadly weapon (a BB gun), kidnapping, aggravated battery and armed robbery. In trial court case number 16-2007-CF-1250-AXXX-MA, appellant was charged with a single count of carjacking involving a different victim. The offenses occurred on January 25, 2007. In both cases, the state filed a “Motion for Joinder of Charges” claiming that the cases were “inextricably intertwined and such factual entanglement necessitate[d] their joinder so they may be tried together in order to properly introduce to the jury all relevant evidence in both cases.” Following a hearing, the trial court granted the motions without explanation, instead, attaching to its order in each case a copy of the state’s motion.

Our analysis begins with the joinder provision of rule 3.150(a), which provides that “[t]wo or more offenses that are triable in the same court may be charged in the same indictment or information ... when the offenses ... are based on the same act or transaction or on 2 or more connected acts or transactions.” (Emphasis added.) However, where joinder is concerned, our supreme court has cautioned that “interests in practicality, efficiency, expense, convenience, and judicial economy, do not outweigh the defendant’s right to a fair determination of guilt or innocence.” Garcia v. State, 568 So.2d 896, 898 (Fla.1990) (citing State v. Williams, 453 So.2d 824, 825 (Fla.1984)). See also Ellis v. State, 622 So.2d 991, 999 (Fla.1993) (quoting Wright v. State, 586 So.2d 1024, 1030 (Fla.1991), which, in turn, quoted Garcia); Crossley v. State, 596 So.2d 447, 449-50 (Fla.1992) (holding that while “[t]he justifications for the consolidation of charges are convenience and the preservation of the courts’ valuable resources ... practicality and efficiency cannot outweigh the defendant’s right to a fair trial,” citing State v. Vazquez, 419 So.2d 1088 (Fla.1982)).

Here, the state’s justification for joinder as articulated at the hearing on its motions was based on the fact that the offenses occurred on the same evening within a three or four block area of the same neighborhood, and were separated by approximately three and a half hours. The state also noted that the same BB gun was used in both offenses, and the cell phones of both victims were stolen. (The carjacking victim’s cell phone was discovered at the scene of appellant’s apprehension, while the cell phone belonging to the sexual battery victim was discovered in appellant’s belongings at the jail on the night of appellant’s arrest following the carjacking.) The state argued that the cases should be joined under either a “crime spree” or an “inseparable evidence” rationale. The state also urged that the fact that both victims had described appellant holding a similar weapon three or four hours apart was “extremely relevant” because it bolstered the credibility of the sexual battery victim.

In Garcia, our supreme court observed:

The applicable principles were made clear in Paul v. State, 385 So.2d 1371, 1372 (Fla.1980), adopting in part 365 So.2d 1063, 1065-67 (Fla. 1st DCA 1979) (Smith, J., dissenting). The primary “purpose of requiring separate trials on unconnected charges is to assure that evidence adduced on one charge will not be misused to dispel doubts on the other, and so effect a mutual contamination of the jury’s consideration of each distinct charge.” 365 So.2d at 1066.

568 So.2d at 898. The court also noted that, in Paul, it had

construed the “connected acts or transactions” requirement of rule 3.150 to mean that the acts joined for trial must be considered “in an episodic sense[.] [T]he rules do not warrant joinder or consolidation of criminal charges based on similar but separate episodes, separated in time, which are ‘connected’ only by similar circumstances and the accused’s alleged guilt in both or all instances.” Paul, 365 So.2d at 1065-66.

Id.

In addition, in Crossley, the supreme court expressed its concern that

[t]he danger in improper consolidation lies in the fact that evidence relating to each of the crimes may have the effect of bolstering the proof of the other. While the testimony in one case standing alone may be insufficient to convince a jury of the defendant’s guilt, evidence that the defendant may have also committed another crime can have the effect of tipping the scales. Therefore, the court must be careful that there is a meaningful relationship between the charges of two separate crimes before permitting them to be tried together.

596 So.2d at 450 (emphasis added). In Crossley, the court concluded that the two episodes of armed robbery jointly tried “were entirely independent,” even though “both robberies were committed within a few hours of each other and only a few miles apart,” involved women who were alone at their places of employment (the first in her car while counting her tips, and the second standing at her cash register at a convenience store), and Crossley was arrested after the second robbery while driving the car stolen during the first robbery. Id. Accordingly, despite acknowledging that a trial court has discretion in deciding when to join separate crimes for trial, the court concluded that the trial court had, nonetheless, abused that discretion in refusing to sever the two charges and order separate trials. Id.

Later, in Ellis, in an effort to determine the proper standard for joinder, the supreme court said:

It is significant that Crossley expressly weighed a variety of factors in determining whether or not the two crimes of robbery at issue there were part of a single “episode.” On one hand, the Crossley crimes were temporally and geographically close to one another, because they were separated by less than three hours in time and only two or three miles in distance. Likewise, both offenses involved an armed robbery of a woman in a commercial establishment by a black man wearing a cap, dark sunglasses, a blue shirt or jacket, and gray shorts. On the other hand, one of the crimes involved a kidnapping, while the other did not. But most importantly the Court found that “the two episodes were entirely independent” and that “there was absolutely nothing to connect one crime with the other.” Crossley, 596 So.2d at 450.

622 So.2d at 999. The court considered the analysis “further illuminated” by its opinion in Bundy v. State, 455 So.2d 330 (Fla.1984), which it characterized as “a classic example of an uninterrupted crime spree in which no significant period of respite separated the multiple crimes,” where the “murderous rampage” began in one location and then, “within roughly' an hour,” proceeded to another location “a few blocks away.” Id. The court then reviewed its decision in Fotopoulos v. State, 608 So.2d 784 (Fla.1992), in which the defendant induced a woman under his influence to commit murder while he videotaped it, and then used the video as blackmail approximately one month later to induce her to hire a “hit man” to murder his wife. The court noted that, while there had been “a substantial lapse of time in Fotopoulos,” joinder was proper because “it was clear that the two crimes were linked in a causal sense: One was used to induce the other.” Id. at 1000. In that sense, the court observed that “one crime could not properly be understood without the other,” and the two crimes “constituted a single episode because of their obvious causal link and despite a lapse of time greater than in Bundy or Crossley.” Id. (emphasis in original). From its analysis of these earlier cases, the supreme court in Ellis “distilled” several rules:

First, for joinder to be appropriate the crimes in question must be linked in some significant way. This can include the fact that they occurred during a “spree” interrupted by no significant period of respite, Bundy, or the fact that one crime is causally related to the other, even though there may have been a significant lapse of time. Fotopoulos. But the mere fact of a general temporal and geographic proximity is not sufficient in itself to justify joinder except to the extent that it helps prove a proper and significant link between the crimes. Crossley.

Id.

For our purposes in resolving the present issue, we conclude that the most relevant rule announced in Ellis is the last one, reiterating the pronouncement in Crossley that “the mere fact of a general temporal and geographic proximity is not sufficient in itself to justify joinder except to the extent that it helps to prove a proper and significant link between the crimes.” Id. Here, while the two criminal episodes were separated by only a few hours and a couple of blocks, we do not consider these factors sufficient “to prove a proper and significant link between the crimes,” even taking into consideration the fact that the BB gun was used during the commission of both crimes. See Puhl v. State, 426 So.2d 1226, 1227 (Fla. 4th DCA 1983) (holding that joinder was improper where the “only similarity” between the offenses was the use of a handgun). But see Livingston v. State, 565 So.2d 1288 (Fla.1988) (holding that joinder was permissible where the gun that was used in both criminal episodes was stolen in the first robbery and used to commit the second armed robbery and murder).

The fact that the same gun was used does not, alone, provide the requisite “meaningful relationship,” which is established by the nature of the crimes and the manner in which they were committed, as exemplified in Smithers v. State, 826 So.2d 916 (Fla.2002). In Smithers, after thoroughly analyzing the principles enunciated in Paul, Garcia, Bundy and Ellis, the supreme court concluded that, while the facts of that case did not fit squarely into the “spree” (Bundy) or “causal link” (Fo-topoulos) categories justifying joinder, joinder was, nonetheless, appropriate even though the crimes were separated by seven to ten days because the “unique facts” of that case showed that both victims were prostitutes, both were taken from the same motel to the same property where they were both murdered in a similar fashion in the carport with tools located in the carport, and their bodies were then dragged into a pond behind the house. Those facts led the court to conclude that there was a “ ‘meaningful relationship’ between the two crimes and they [were] without question ‘linked in some significant way.’ ” Id. at 924. A similar “meaningful relationship” does not exist between the commission of the criminal episodes in the instant cases, which more closely resemble the situation in Crossley than those in Bundy, Fotopoulos and Smithers.

Here, the evidence was that, on January 25, 2010, at approximately 5:00 p.m., the first victim was walking home when a man came up from behind her, grabbed her arm and put something hard to her back, which she believed to be a gun. She was taken to a wooded area where her assailant raped her multiple times and hit her repeatedly with the gun. During the episode, the victim was able to fully view her attacker, whom she identified as appellant several days later from a police photo-spread. Following the attack, appellant allowed the victim to leave, while keeping her shirt, bra and cell phone. Later that evening, at about 10:00 p.m., appellant met up with his cousin. He mentioned nothing about the earlier sexual battery. Instead, he announced that he wanted to “take a car.” When the second victim emerged from her car to open the gate at the entrance to her driveway, she noticed two men standing nearby. They approached her and both pointed guns at her, demanding her car, keys, cell phone and purse. They then jumped into her car and drove off. The victim immediately called the police and described her assailants. Shortly thereafter, two deputies who had received the BOLO concerning the carjacking spotted the car parked in an apartment complex they were patrolling. They parked nearby, and ten or fifteen minutes later two individuals who fit the victim’s descriptions emerged from behind one of the buildings. When the deputies announced their presence, a chase ensued and the men were apprehended. The victim was driven to a bank parking lot in the back of a patrol car where she identified appellant and his cousin as the two men who had stolen her car. When the deputies conducted a search of the flight path at the apartment complex, they found two guns, one of which was appellant’s BB gun. Appellant testified on his own behalf, stating that the sexual encounter with the first victim had been consensual. During closing arguments regarding the sexual battery, defense counsel urged the jury to find appellant not guilty because the victim was not a credible witness based on testimony presented at trial. In rebuttal, the state argued that the jury could believe the first victim because the carjacking had occurred just hours later in the same neighborhood and the same weapon was used, all of which went to establish appellant’s “state of mind” that he was “on the streets robbing.”

We conclude from the foregoing facts and the authoritative principles earlier discussed that the episodes here can only be described as “freestanding and distinct.” Ellis, 622 So.2d at 1000. This absence of the essential “meaningful relationship” between the two criminal events is pivotal to our analysis. Crossley, 596 So.2d at 450. The evidence relating to the second crime was unequivocally used to bolster the proof of the first, leading to the distinct “danger,” given the credibility issue, that the evidence of the commission of the one crime might have had the effect of “tipping the scales” in favor of conviction of the others. Id. Accordingly, we conclude, further, that the trial court abused its discretion in joining the cases for trial.

The state contends that any error was harmless because some of the testimony concerning each of the criminal episodes could have been introduced in the trial of the other as similar fact evidence pursuant to section 90.404(2), Florida Statutes (2006). See Williams v. State, 110 So.2d 654 (Fla.1959). However, the crimes here were distinctly different, and it cannot be said based on the present record that the few similarities were so unusual that admission under the Williams rule would be proper. See Crossley, 596 So.2d at 450. Indeed, the state withdrew its Williams rule notice in anticipation of the trial court’s ruling on its joinder motions and, therefore, there are no record findings by the trial court on the subject. See generally Robertson v. State, 829 So.2d 901, 907-08 (Fla.2002) (holding that “the determination of whether evidence properly may be admitted as Williams rule evidence is a highly individualized, factually intensive inquiry” and, thus, the requirement of pretrial notice allows the trial court to make the necessary “multiple determinations” before admitting Williams evidence).

For the foregoing reasons, we reverse appellant’s judgments of conviction and sentences, and remand with instructions that the cases be severed for separate trials. This ruling moots appellant’s remaining two issues.

REVERSED and REMANDED, with directions.

BENTON, C.J., and VAN NORTWICK, J., concur.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    Mary HINELY, Appellant, v. FLORIDA MOTORCYCLE TRAINING, INC., a Florida corporation, and School District of Alachua County, Appellees.
    No. 1D09-5009.
    District Court of Appeal of Florida, First District.
    May 13, 2011.

      Tracy L. Markham of Avolio & Hanlon, P.C., St. Augustine; Bard D. Rockenbach and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    William T. Stone and Kansas R. Gooden of Boyd & Jenerette, P.A., Jacksonville, for Appellees.
   Corrected Opinion

VAN NORTWICK, J.

Mary Hinely appeals a final summary judgment in her action against Florida Motorcycle Training, Inc. (“FMT”), seeking damages for injuries that she sustained in an accident in the motorcycle training school operated by FMT. The court granted summary judgment based upon FMT’s affirmative defense that the exculpatory provisions contained within the registration application for FMT’s motorcycle training school, which was completed and signed by Hinely, expressly waived and released FMT from any liability arising from the motorcycle training classes. Below and on appeal, Hinely has asserted that the exculpatory provisions are unenforceable because they are unclear and ambiguous and, alternatively, are void as against public policy. We affirm.

Hinely registered for a basic motorcycle riding course offered by FMT. Prior to enrolling in the course, Hinely printed and signed a registration application for the course from FMT’s internet website. The application contained an exculpatory provision under the heading: “Waiver of Release of Liability — Please Read Carefully” (emphasis added). The first paragraph of this exculpatory provision states that the signer:

fully understand^] and acknowledge^] that: (a) risks and dangers exist in my use of motorcycle equipment and my participation in the Motorcycle Rider-Education Class activities; (b) my participation in such activities and/or use of such equipment may result in injury or illness including, but not limited to bodily injury, disease, strains, fractures, partial and/or total paralysis, death or other ailments that could cause serious disability; (c) these risks and dangers may be caused by the negligence of the owners, employees, officers of agents of Florida Motorcycle Training.... I hereby assume all risks and dangers and all responsibilities for any losses and/or damages, whether caused in whole or in part by the negligence or other conduct of the owners, agents, officers, or employees of Florida Motorcycle Training, Inc. or by another other person.

The second paragraph of the provision is a release and waiver of liability which states:

I, on behalf of myself, my personal representatives and my heirs hereby voluntarily agree to release, waive, discharge, hold harmless, defend and indemnify Florida Motorcycle Training. Inc. and its owners, agents, officers, and employees from any and all claims, suits or causes of action for bodily injury, property damage, wrongful death, loss of services or otherwise which may arise out of my use of motorcycles and motorcycle equipment or my participation in the Motorcycle Rider Education Class activities. I specifically understand that I am releasing, discharging and waiving any claims or actions that I may have presently or in the future for the negligent acts or other conduct by Florida Motorcycle Training. Inc. and its owners, agents, officers or employees.

Finally, the exculpatory provision includes the following paragraph in capitalized and bold typeface immediately above Hinely’s signature:

I HAVE READ THE ABOVE WAIVER OR RELEASE AND BY SIGNING IT AGREE IT IS MY INTENTION TO EXEMPT AND RELIEVE FLORIDA MOTORCYCLE TRAINING, INC. FROM LIABILITY FOR PERSONAL LIABILITY, PROPERTY DAMAGE OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR ANY OTHER CAUSE OF ACTION.

Subsequently, Hinely was involved in an accident while participating in the FMT motorcycle class. Hinely filed an action against FMT alleging several theories of negligence, including negligent operation of a motorcycle training school, negligent selection of a course location and negligent supervision. As an affirmative defense, FMT asserted that, by signing the registration application with the exculpatory provision, Hinely expressly waived and released it from any liability. In her reply to FMT’s answer and affirmative defenses, Hinely asserted that the exculpatory provisions she signed are unenforceable because they are unclear and ambiguous and that the exculpatory provisions are void as against public policy.

FMT filed a motion for summary judgment arguing that the exculpatory provision signed by Hinely shielded FMT from liability for the accident. Following a hearing, the court granted FMT’s motion for final summary judgment. Hinely’s motion for rehearing, arguing that the court failed to consider the public policy implications of the release, was denied. This appeal followed.

A motion for summary judgment should be granted if the movant conclusively demonstrates that there are no genuine issues of material fact. See Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1095-96 (Fla. 1st DCA 1999). As we have stated, “[wjhere the determination of the issues of a lawsuit depends upon the construction of a written instrument and the legal effect to be drawn therefrom, the question at issue is essentially one of law only and determinable by entry of summary judgment.” Id. at 1096 (quoting Angell v. Don Jones Ins. Agency, Inc., 620 So.2d 1012, 1014 (Fla. 2d DCA 1993)). In such case, “an appellate court is not restricted in its ability to reassess the mean ing and effect of a written instrument to reach a conclusion contrary to that of the trial court.” Cox, id. (quoting Angell, 620 So.2d at 1014). Because the issue before us is simply a matter of law, our standard of review is de novo. AMEC Civil, LLC. v. State Dept. of Transp. 41 So.3d 285, 238 (Fla. 1st DCA 2010).

Exculpatory clauses “are enforceable only where and to the extent that the intention to be relieved was made clear and unequivocal in the contract, and the wording must be so clear and understandable that an ordinary and knowledgeable party will know what he is contracting away.” Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 634 (Fla. 1st DCA 1991). A provision in a contract is ambiguous when it is of uncertain meaning, and thus may be fairly understood in more ways than one. See Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009). As such, a contract must be construed in ac cordance with the plain meaning of its terms. See Hand v. Grow Constr. Inc., 983 So.2d 684, 686 (Fla. 1st DCA 2008).

We disagree with Hinely’s contention that the exculpatory provision in question is unclear and ambiguous. Although Hinely asserts that the typographical error in the provision’s heading (“Waiver of Release of Liability”) may lead a person to understand the provision in more ways than one, it is obvious from a reading of the exculpatory provision as a whole that the provision was plainly intended to relieve FMT of liability for negligence associated with the motorcycle training classes. Moreover, the headings or subheadings of a document do not dictate the meaning of the entire agreement, especially where the literal language of the heading is contrary to the agreement’s overall scheme. See, e.g., Moore v. State Farm Mut. Auto. Ins. Co., 916 So.2d 871, 875 (Fla. 2d DCA 2005) (“[T]he intention of the parties must be determined from an examination of the entire contract and not from separate phrases or paragraphs.”); see also Imation Corp. v. Koninklijke Philips Electronics N.V., 586 F.3d 980, 987 n. 3 (Fed.Cir.2009) (“This court is unwilling to resolve a pivotal issue of contract interpretation based on the tense of section headings where doing so would conflict with the plain reading of operative language elsewhere in the contract.”). Hinely asserts that from the wording of the heading a person signing the document would conclude that the provision waives any release of liability by FMT. We do not agree. FMT’s intention to reduce its future liability, rather than facilitate such claims, is clearly shown by the fact that the typographical error only occurs in the title and the error is not repeated in the remainder of the document. See City Nat’l Bank v. Citibank, N.A., 373 So.2d 703, 707 (Fla. 3d DCA 1979) (enforcing an exculpatory clause after concluding that although there were ambiguities the entirety of the exculpatory clause was clear). The contract language in the present case clearly shows FMT’s intent to avoid liability through the exculpatory clause.

Hinely also asserts that FMT’s exculpatory provision is void as against public policy. An exculpatory clause is void as against public policy when the following elements are established:

(1) it concerns a business of a type generally suitable for public regulations; (2) the party seeking exculpation is engaged in performing a service of great public importance, which is often a matter of practical necessity for some members of the public; (3) the party holds himself out as willing to perform this service for any member of the public who seeks it; (4) as a result of the essential nature of the service and the economic setting of the transaction, the party seeking exculpation possesses a decisive advantage in bargaining strength; (5) in exercising superior bargaining power, the party confronts the public with a standardized adhesion contract of exculpation; and (6) as a result of the transaction, the person or property of the purchaser is placed under control of the party to be exculpated.

Goeden v. CM III, Inc., 756 So.2d 1105, 1106 (Fla. 3d DCA 2000) (quoting Banfield v. Louis, 589 So.2d 441, 446 (Fla. 4th DCA 1991)).

Under these factors, based on the undisputed facts here, the exculpatory clause at issue is not contrary to public policy. We find Goeden persuasive. In Goeden, the Third District considered a case involving a city parking enforcement specialist who, after signing a contract containing an exculpatory provision, enrolled in a motorcycle driving course and suffered injuries. 756 So.2d at 1106. On appeal, Goeden argued that the release was void as against public policy since state law required enforcement specialists to possess a motorcycle operator’s license, if they chose to utilize a “three wheel[ed] vehicle” while performing their duties. Id. at 1105. Specialists could obtain the required license by enrolling in a motorcycle riding course, although the record reflected that specialists could have obtained a motorcycle operator’s license without enrolling in the class, since Florida law at the time only made the course mandatory for applicants who were under 21 years of age. Id. at 1106. Further, a specialist was not required to enroll in such a course if the specialist chose to perform his or her duties on foot or chose to transfer to another line of work. Id. at 1105. As the Goeden court explained:

[flor members of the public who are twenty-one or older, attendance at the motorcycle school is an available option, but not a requirement, insofar as the driver’s license law is concerned. That being so, we are not persuaded that attendance at the school is a matter of practical necessity or an essential service ....

Id. Accordingly, the Goeden court held that, since the officer was over 21 years of age at the time she enrolled in the motorcycle school, the course was not mandatory for her and that the release of liability was therefore valid. Id. at 1106-07.

Hinely has failed to satisfy several factors necessary to establish that this exculpatory provision is void. First, there is no evidence that FMT engaged in performing a service of great public importance by offering motorcycle training courses. Second, as in Goeden, the course here was not an essential service or practical necessity for Hinely since the applicable Florida law at the time of the accident did not require an applicant to enroll in a motorcycle training class as a condition of obtaining a license. Finally, Hinely also failed to demonstrate that FMT exercised superior bargaining power. See, e.g., Petersen v. Sorensen, 118 Wash.App. 1027 (Wash.Ct. App.2003) (holding that, although motorcycle driving courses are favored as a mechanism for gaining proficiency, “this does not create an unfair bargaining advantage because there was no need for [the plaintiff] to take the course at all”).

AFFIRMED.

WOLF, and THOMAS, JJ., concur.

      . Alachua County was also named as a defendant, but the County did not join FMT's motion for summary judgment and thus was not a party to the final order granting summary judgment and is not a party to this appeal.

      . The Goeden court suggested that, had the state mandated attendance at the motorcycle training class as a prerequisite to obtaining a license, it would have held otherwise and ruled that the release violated public policy. See Goeden at 1106. Because that issue is not before us, we do not address it. We note that the applicable statute has been amended. Pursuant to section 43, chapter 2006-290, Laws of Florida, the words "who is under 21 years of age" were stricken from section 322.12(5)(a), Florida Statutes (2009), which outlines Florida motorcycle license examination requirements. Thus, it appears that, under the current law, all applicants for motorcycle driving licenses must complete a DMV-approved motorcycle training course before obtaining a license.


text:
    Jeffrey Scott FAWDRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-0896.
    District Court of Appeal of Florida, First District.
    May 13, 2011.

      James T. Miller, and Laura Nezami, Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Jeffrey Fawdry appeals a judgment of conviction for five counts of possession of photographs which depicted sexual performance by a child in violation of section 827.071(5), Florida Statutes (2009), asserts ing that the trial court erred in denying his motion to suppress evidence seized from his cellular telephone. The photographs in question were stored in Fawdry’s cellular telephone and were discovered by police when his telephone was searched upon his arrest for other charges. Fawdry moved to suppress the photographs. After an evidentiary hearing, the trial court denied the motion to suppress. Fawdry thereafter entered a no contest plea, reserving the right to appeal the denial of his motion to suppress. Because we find that the search of Fawdry’s phone falls within the scope of the search incident to arrest exception to the Fourth Amendment’s warrant requirement, we affirm.

Evidence introduced at the suppression hearing revealed that on June 19, 2009, Jacksonville Sherriffs Officer Fontenot went to Fawdry’s home to serve an extra-jurisdictional arrest warrant for several counts of sexual battery on a child. At the home, Fontenot encountered Fawdry and several members of Fawdry’s family. After placing Fawdry under arrest, Fontenot proceeded to search Fawdry’s person. During the search, Fontenot discovered a wallet and a cell phone. When Fontenot came across the cell phone, he noticed that Fawdry became unusually nervous, according to the officer’s testimony. After Fon-tenot removed the cell phone from Faw-dry’s pocket, Fawdry repeatedly insisted that the phone be given to his sister. Based on prior instruction from his supervisors regarding the existence of firearms disguised as cell phones, Fontenot flipped open the cell phone to confirm that it was not a weapon. Upon opening the phone, Fontenot discovered that the so-called wallpaper behind the phone’s main menu was comprised of a photograph of an erotically-posed, prepubescent female. Recalling that Fawdry was being arrested on charges of sexual battery of a child, Fonte-not believed that further inquiry was warranted and proceeded to search the media files on the phone. This search revealed images of child pornography. Based upon these images, Fawdry was later charged by information with several counts of possession of a photograph which depicted sexual performance by a child. Fawdry then moved to suppress the fruits of the search of his cell phone.

In denying the motion to suppress, the trial court held that, given Fawdry’s reaction to the seizure of his cell phone, it was reasonable for Fontenot to open the phone. The trial court further held that, because of the nature of the image in the cell phone wallpaper and in light of the sexual offenses for which Fawdry was being arrested, it was reasonable for the officer to search through the data files on the phone.

A trial court’s ruling on a motion to suppress is reviewed with “great deference.” The trial court’s ruling is presumed to be correct, and the reviewing court interprets “the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006) (quoting Murray v. State, 692 So.2d 157, 159 (Fla.1997); Connor v. State, 803 So.2d 598, 605 (Fla.2001)). A trial court’s ruling on a motion to suppress presents “a mixed question of law and fact.” Cooks v. State, 28 So.3d 147, 149 (Fla. 1st DCA 2010) (citing Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009)). As such, it is reviewed on appeal “applying a two-step approach.” Brye, 927 So.2d at 80-81. “Deference is to be shown to the trial court on questions of historical fact, but de novo review of the application of a constitutional standard to the facts in a particular case is proper.” Id. at 81 (citing United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 696-98, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598, 605 (Fla.2001)).

In this case, Fawdry challenges the war-rantless search of his cell phone incident to his arrest pursuant to a lawful arrest warrant. The issue presented is whether the warrantless search of a cell phone exceeds the permissible scope of searches allowed under the search incident to arrest exception of the Fourth Amendment’s warrant requirement.

The permissible scope of a search incident to a lawful custodial arrest is limited to: 1) a search of the suspect’s person; and 2) a search of the area within the suspect’s immediate control. See Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 2040, 23 L.Ed.2d 685 (1969). Although the authority to conduct this search is justified by the need to protect officer safety and prevent the destruction of evidence of the suspect’s crime, the lawfulness of a warrantless search incident to a lawful arrest “does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.” United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973). Accordingly, a search of a suspect incident to a lawful arrest is a “ ‘reasonable’ search” under the Fourth Amendment, requiring “no additional justification.” Id. Further a lawful arrest allows an arresting officer to search personal effects, including open and closed containers, carried by the suspect. Savoie v. State, 422 So.2d 308, 313-14 (Fla.1982) (citing United States v. Brown, 671 F.2d 585 (D.C.Cir.1982)). Such a search is permitted, not because a suspect has no privacy interests in his personal effects, but because a lawful custodial arrest justifies the infringement of any privacy interest a suspect may have in such effects. See New York v. Belton, 453 U.S. 454, 461, 101 S.Ct. 2860, 2864, 69 L.Ed.2d 768 (1981).

The unique properties of modern cellular telephones, including their multi-func-tional capabilities and immense storage capacities, have led some courts to conclude that a search of a cell phone is more intrusive than the search of the contents of physical containers and that an individual has a heightened expectation of privacy as a result. See, e.g., State v. Smith, 124 Ohio St.3d 163, 920 N.E.2d 949, 954-55 (2009). Other courts have come to a different conclusion, analogizing a cell phone to a closed container and permitting its search pursuant to the rule set forth in Belton. See, e.g., United States v. Finley, 477 F.3d 250, 259-60 (5th Cir.2007).

The State urges us to adopt the reasoning of Finley. In Finley, the defendant was arrested on drug charges stemming from his involvement in a controlled purchase of narcotics. Incident to this arrest, Finley was searched and his cell phone was seized from his pocket. After he was taken into custody, the arresting officer transported Finley to the home of an accomplice where other officers were conducting a search pursuant to a warrant. Outside the home, Finley was questioned, and his cell phone was searched. Id. at 253-54.

On appeal before the Fifth Circuit, Finley argued that the evidence recovered during the search of his cell phone should have been suppressed. Id. at 258. In affirming the denial of Finley’s motion to suppress, the Fifth Circuit characterized a cell phone as a closed container. Id. at 260. Accordingly, like a pager or other container, the court concluded, on the authority of Robinson, 414 U.S. at 235, 94 S.Ct. 467, that a cell phone could be searched incident to arrest. Finley, 477 F.3d at 260.

Fawdry urges us to reject the conclusion of the Finley court and instead adopt the Ohio Supreme Court’s reasoning in Smith, which rejected the container analogy. See 920 N.E.2d at 953-54. While the Ohio court acknowledged federal court precedent “likenfing] electronic devices to closed containers!,]” it read the Belton container rule as implicitly requiring that a container have the capacity to store another physical object within it. Smith, 920 N.E.2d at 954. Further, the court distinguished modern cell phones from pagers and computer memo books, objects previously deemed indistinguishable from closed containers by federal courts, based upon the type of information capable of being stored therein. Id. The court concluded that, because of a modern cell phone’s capacity to store “a wealth of digitized information wholly unlike any physical object found within a closed container!,]” it could not be considered “a closed container for the purpose of a Fourth Amendment analysis.” Id.

We are unpersuaded by Smith. Although it may be true that a digital file itself is “wholly unlike any physical object found within a closed container,” the information found within it is likely no different than information found within a printed physical copy of a digital file. Indeed, before the innovations made available in current cell phone technology, the information contained within digital files would have been contained in tangible copies and carried in closed containers. Digital files and programs on cell phones have merely served as replacements for personal effects like address books, calendar books, photo albums, and file folders previously carried in a tangible form. Viewed in this light, the cell phone merely acts as a case (i.e. closed container) containing these personal effects. When in tangible form, the aforementioned personal effects could clearly be searched incident to arrest if found in a case carried on the suspect’s person or in a vehicle which the suspect occupied. See Savoie, 422 So.2d at 313-14; see also Robinson, 414 U.S. at 235-36. Accordingly, a search of a digital version of these personal effects would be similarly permissible. After all, it is the information itself in which a person’s privacy interests lie. See Finley, 477 F.3d at 259 (explaining that although the defendant’s employer owned the telephone, the defendant still “had a reasonable expectation of privacy in the call records and text messages on the cell phone”). Accordingly, a distinction based upon the manner in which that information is stored is unwarranted.

Fawdry further argues that, even if we analogize the cell phone to a container, the search in this case was still unlawful because, under Arizona v. Gant, 556 U.S. 332, 129 S.Ct. 1710, 173 L.Ed.2d 485 (2009), searches of containers under Belton are limited to searches for evidence of the crime of arrest. We believe that this argument is misplaced. The Gant court did not recede from Belton, but rather corrected what it deemed to be an overly broad reading of that opinion by other courts. See Gant, 129 S.Ct. at 1718-19. Thus, the Gant court held that Belton does not justify the search of a vehicle where a suspect is secured and not able to reach the area of the car being searched. Id. at 1719. This limitation is not relevant in the case before us because a vehicle search did not occur. Here, Fawdry was arrested at his home, his cell phone was found on his person, and he was searched immediately following his lawful arrest.

We find that the instant ease is analogous to our recent decision in Smallwood v. State, 61 So.3d 448 (Fla. 1st DCA 2011). We agree with the analysis in Smallwood and find that Robinson is dis-positive here. As the Smallwood panel notes, Robinson permits an officer to inspect any item found on the person of a suspect. See Robinson, 414 U.S. at 236, 94 S.Ct. 467. A court is not permitted to second guess the decision to inspect such items by weighing the “probability in a particular arrest situation that weapons or evidence would in fact be found[.]” Id. at 235, 94 S.Ct. 467. A search incident to a lawful arrest is “reasonable” per se under the Fourth Amendment. Id. The Gant court did nothing to alter this rule in the context of the instant case. Accordingly, the search of Fawdry’s cell phone incident to his arrest was not a violation of the Fourth Amendment.

Because Fawdry’s motion to suppress evidence seized from his cell phone was without merit, we AFFIRM. We certify a question of great public importance similar to the question certified in Smallwood:

DOES THE HOLDING IN U.S. v. ROBINSON, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) ALLOW A POLICE OFFICER TO SEARCH THROUGH PHOTOGRAPHS CONTAINED WITHIN A CELL PHONE WHICH IS ON AN ARRESTEE’S PERSON AT THE TIME OF A VALID ARREST?

LEWIS, and ROBERTS, JJ., concur.

      . A container includes "any object capable of holding another object.” New York v. Belton, 453 U.S. 454, 460 n. 4, 101 S.Ct. 2860, 2864 n. 4, 69 L.Ed.2d 768 (1981).

      . This container rule was first explicitly pronounced in New York v. Belton, wherein the United States Supreme Court held that police may, contemporaneously to a lawful custodial arrest' of an occupant of an automobile, search the entire passenger compartment as well as any container found therein whether open or closed. 453 U.S. at 460-61, 101 S.Ct. 2860. The Court’s opinion in Belton, suggests that permitting a container search in the automobile context is merely an extension of the rule set forth in Robinson, which permitted the inspection of the contents of a crumpled cigarette package found on a suspect’s person incident to arrest. See id. at 460-61, 101 S.Ct. 2860; Robinson, 414 U.S. at 236, 94 S.Ct. 467. Nonetheless, when the Florida Supreme Court upheld the search of a container found on the suspect’s person in Savoie v. State, the court viewed its holding as an extension of Belton. 422 So.2d 308, 313— 14 (Fla.1982).

      . Although the cell phone search in Finley occurred after the defendant was transported to an accomplice’s home, the court still deemed the search to be "substantially contemporaneous” to arrest so as to qualify as a search incident to arrest. Id. at 260 n. 7.


author: PER CURIAM.

text:
    Kevin Lee BOYINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-3867.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Kevin Boyington, seeks review of the trial court’s order of revocation of community control. He argues, and the State concedes, that the trial court erred in revoking his community control solely based upon the allegation that he changed his address without permission. We agree and reverse.

The State filed a violation of community control affidavit alleging the following three grounds: (1) the appellant changed his residence without permission; (2) the appellant left his county of residence without permission; and (3) the appellant committed a new criminal offense. All three allegations arose from the appellant’s leaving Escambia County on February 5, 2010, and entering Alabama, at which time he was arrested and incarcerated for theft.

At the violation of community control hearing, the State advised the trial court that it would not be going forward on allegations (2) and (3) and would only be proceeding on allegation (1), changing residence without permission. The evidence at the hearing established that the appellant was arrested in Alabama on February 5, 2010, and remained in jail from that date through the date of the violation hearing. Nonetheless, the trial court found the appellant guilty of “that portion of Allegation (1), which alleged that he changed his residence without the consent of a probation officer,” revoked community control, and sentenced him to 30 months in state prison.

On appeal, the appellant argues, and the State concedes, that the trial court erred in revoking his community control where there was no showing of a willful or substantial violation. See Burgin v. State, 623 So.2d 575, 576 (Fla. 1st DCA 1993). In light of the evidence showing that the appellant was incarcerated from the time of his arrest to the date of his hearing, we agree that the appellant should not have been revoked for something that was beyond his control. See e.g., Frazier v. State, 587 So.2d 660, 661 (Fla. 3d DCA 1991) (finding probationer’s failure to report to probation office non-willful where he was incarcerated at the time); Smith v. State, 711 So.2d 100, 103 (Fla. 1st DCA 1998) (finding the appellant’s failure to file monthly reports after his arrest did not constitute a willful offense).

We REVERSE the order revoking the appellant’s community control and REMAND for reinstatement of supervision.

DAVIS, ROBERTS, and ROWE, JJ., concur.


author: HAWKES, J.

text:
    Susan Saint SING, Appellant, v. NETTLES ISLAND MARINA, Appellee.
    No. 1D10-5054.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Arthur T. Schofield, of Arthur T. Scho-field, P.A., West Palm Beach, for Appellant.

      No appearance for Appellee.
   HAWKES, J.

This is an appeal from an order of the Florida Commission on Human Relations regarding whether the presence of a restaurant and tiki hut transformed a marina into a “public accommodation” for the purposes of the Florida Civil Rights Act of 1992. Because further fact finding is needed to answer this question, we reverse.

Appellant, who leased a boat slip from the Appellee, claims she was sexually harassed and discriminated against when she sought to extend her lease. Appellant filed a charge of discrimination with the Florida Commission on Human Relations (the Commission), claiming a violation of the Florida Civil Rights Act (the Act). Along with the charge, Appellant submitted material from the marina’s website indicating that either on its grounds or within close proximity were, among other things, a restaurant and a tiki hut. The Commission denied the charge, finding the marina was not a “public accommodation” under Section 760.02(11) Florida Statutes (2010) and, therefore, did not trigger any protection offered by the Act.

Section 760.02(ll)(a, d), Florida Statutes, defines a “public accommodation” as:

Any [ ] restaurant, hotel, or other establishment which provides lodging to transient guests, [ ] including any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.

Therefore, an establishment may be transformed into a “public accommodation” for the Act’s purposes if it has on its premises an entity otherwise covered by the Act, so long as the encompassing premises holds itself out as serving patrons of the covered entity.

A marina is not specifically listed as a place of “public accommodation” in the Act. However, the Act includes restaurants in the scope of “public accommodations.” The materials submitted with the charge indicate the marina offers the “amenities” of a restaurant and tiki hut, but there was no fact-finding as to whether these entities are located on the marina’s premises. Furthermore, the Commission did not address whether the marina holds itself out as serving patrons of the restaurant and tiki hut. If the restaurant and tiki hut are located on the marina’s property, and if the marina serves their patrons, the marina would qualify as a “public accommodation” under Section 760.02(ll)(a, d). Consequently, the case should be remanded to make these necessary fact findings.

For the aforementioned reasons, the case is REVERSED and REMANDED. Although Appellant has raised other arguments seeking to qualify the marina as a “public accommodation,” we reject them.

THOMAS and ROBERTS, JJ„ concur.

      . See Mena v. Lifemark Hosps. of Fla., 50 So.3d 759, 761 (Fla. 1st DCA 2010).


text:
    Youncher WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-0575.
    District Court of Appeal of Florida, First District.
    May 13, 2011.
    Youncher Washington, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Youncher Washington, appeals the trial court’s denial of his facially sufficient motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.800(a). Appellant alleges that the facts of his case support a ten-year minimum mandatory sentence under section 775.087, Florida Statutes (2008), rather than the twenty-year minimum mandatory sentence imposed. The trial court denied Appellant’s motion without attaching any portions of the record refuting Appellant’s claim.

On appeal from an order denying a rule 3.800 motion, this Court is required to reverse unless the postconviction record conclusively shows that the appellant is not entitled to any relief. Fla. R.App. P. 9.141(b)(2)(D). Initially, we note that Appellant’s rule 3.800(a) motion was facially insufficient for failing to direct the court to the portions of the record that demonstrate entitlement to relief. See Baker v. State, 714 So.2d 1167, 1167 (Fla. 1st DCA 1998). However, Appellant thereafter filed a sworn motion for rehearing wherein he cured the deficiency by pointing to specific pages in the transcript that purportedly support his allegations. See Golden v. State, 509 So.2d 1149, 1151 (Fla. 1st DCA 1987).

We therefore reverse the order before us and remand for further proceedings. If the trial court again denies relief, it shall attach record excerpts conclusively showing that Appellant is not entitled to any relief.

REVERSED and REMANDED for further proceedings.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


author: BENTON, C.J.

text:
    A.T.N., mother of D.P. & E. B., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D11-0543.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      William Garrett, Panama City, for Appellant.
    Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee; Kelley Schaef-fer, Appellate Counsel, Guardian ad Litem Program, Tavares; and Susan Barber, Assistant Regional Conflict Counsel, Tallahassee, for Appellee/Father.
   BENTON, C.J.

A.T.N. appeals an order that adopted a general magistrate’s recommended order in adjudicating her child, E.B., dependent. In violation of Florida Rule of Juvenile Procedure 8.257(h), the general magistrate, not the circuit judge, had presided over the adjudicatory hearing. The Department of Children and Family Services (DCFS) concedes error, moreover, in that the only evidence adduced at the hearing was hearsay. Accordingly, we reverse and remand for further proceedings.

When DCFS filed an initial petition for dependency, A.T.N. entered into a “Stipulation for Plan of Treatment” with DCFS stipulating, inter alia, that if, at the end of six months, A.T.N. was not in substantial compliance with the terms of her case plan, then “upon motion and hearing and the Court finding by a preponderance of the evidence that a material violation of the Stipulation has occurred, and without further evidence of the state of dependency, the parent hereby agrees that [E.B.] shall be adjudicated dependent based upon the allegations set forth in the Petition for Dependency filed by [DCFS] and incorporated herein by reference, with said allegations to be deemed findings of fact upon which the Court may base the adjudication of dependency.” Before the six-month period ended, DCFS filed a motion to adjudicate E.B. dependent, arguing that A.T.N. had not complied with the terms of the case plan, and that it was unlikely she would do so by the deadline.

When the matter came on for hearing before a general magistrate, A.T.N.’s counsel argued that a general magistrate was without authority to conduct dependency adjudications. The magistrate ruled otherwise and, based on DCFS’s counsel’s representation that it was her understanding that, while A.T.N. had recently started on the tasks her case plan set for her, she should have completed everything by October but had not, the magistrate found that A.T.N. had violated the terms of the stipulation, and recommended that E.B. be adjudicated dependent. On December 13, 2010, the same day the magistrate made his report and recommendation, the circuit judge adopted the recommended order adjudicating E.B. dependent in the order under review.

A general magistrate cannot conduct an adjudicatory hearing under section 89.507, Florida Statutes (2010). Section 39.507, which governs hearings adjudicating children dependent, provides that such hearings “shall be conducted by the judge without a jury, applying the rules of evidence in use in civil cases.” § 39.507(l)(b), Fla. Stat. (2010). Florida Rule of Juvenile Procedure 8.257(h) prohibits a general magistrate from presiding over an adjudicatory hearing under section 39.507: “Notwithstanding the provisions of this rule, a general magistrate shall not preside over a shelter hearing under section 39.402, Florida Statutes, an adjudicatory hearing under section 39.507, Florida Statutes, or an adjudicatory hearing under section 39.809, Florida Statutes.” See also In re Amendments to the Fla. Rules of Juvenile Procedure, 939 So.2d 74, 75-76 (Fla.2006) (noting, in adopting the current version of rule 8.257(h), that “there is currently no meaningful opportunity for the child to object to a magistrate conducting a hearing under these provisions. Consequently, there is also no opportunity for the child to waive an objection to the referral. Without provision for such an opportunity in the rules, we believe these hearings must be conducted by an article V judge.”). Because the general magistrate did not have authority to conduct the adjudicatory hearing, we must reverse. See Polk Cnty. v. Sofka, 702 So.2d 1243, 1244-45 (Fla.1997) (refusing to decide merits where case came from a court that lacked jurisdiction to enter judgment).

Florida Rule of Juvenile Procedure 8.257(b)(1) provides, moreover, that “[n]o matter shall be heard by a general magistrate without an appropriate order of referral and the consent to the referral of all parties.” Although failure to file a written objection to an order of referral within ten days constitutes consent to the referral, see Fla. R. Juv. P. 3.257(b)(2), in the present case the record contains no order of referral to which A.T.N. could have consented.

Finally, A.T.N. argues that the magistrate improperly based his decision to adjudicate E.B. dependent on hearsay, since neither party presented any evidence or called any witnesses at the hearing. DCFS has the burden of proof in a dependency hearing, and must “prove the allegations to support dependency by a preponderance of the evidence.” E.S. v. Fla. Dep’t of Children & Families, 984 So.2d 647, 649 (Fla. 1st DCA 2008) (citing C.C. v. Dep’t of Health & Rehabilitative Servs., 556 So.2d 416, 417 (Fla. 1st DCA 1989)). Dependency adjudications are reviewed under the abuse of discretion standard. See id. (citing J.C. v. Dep’t of Children & Family Servs., 947 So.2d 1246, 1248 (Fla.2d DCA 2007)). Because DCFS presented no evidence to show that A.T.N. materially violated the stipulation, or that E.B. was otherwise dependent within the meaning of chapter 39, DCFS did not meet its burden to prove grounds for dependency, and the trial court abused its discretion in adjudicating E.B. dependent. DCFS concedes error on this point only, and the Guardian ad Litem joins the concession.

Reversed and remanded.

CLARK and MARSTILLER, JJ., concur.

       Neither DCFS nor the Guardian ad Litem argues that A.T.N. waived this argument by failing to file exceptions to the magistrate’s report and recommended order. See Fla. R. Juv. P. 8.257(f) ("The parties may file exceptions to the report within 10 days from the time it is served on them.... If no exceptions are filed within that period, the court shall take appropriate action on the report.”). It appears the parties had no time to file exceptions, in any event, as the circuit judge signed the order under review on the same day the magistrate entered his report and recommended order. See, e.g., Berkheimer v. Berkheimer, 466 So.2d 1219, 1220 (Fla. 4th DCA 1985) (finding Florida Rule of Civil Procedure 1.490(h)’s providing that, if the parties do not file exceptions to a magistrate’s report within ten days from the time it was served on them, the court shall take appropriate action, "indicates that the trial court is not at liberty to act upon the master's report during the 10-day period”). See also Aspsoft, Inc. v. WebClay, 983 So.2d 761, 764-65 n. 1 (Fla. 5th DCA 2008) (rejecting argument that appellant waived claims of error for failure to file exceptions to the general magistrate’s report, stating that appellees “failed to cite to any statutory or case law to support their waiver argument, and independent research has failed to uncover any legal support for the waiver argument”). But see, e.g., Rosen v. Wilson, 922 So.2d 401, 402 (Fla. 4th DCA 2006).


text:
    BRONSON’S INC and Travelers, Appellants, v. Robert MANN, Appellee.
    No. 1D10-6617.
    District Court of Appeal of Florida, First District.
    May 18, 2011.

      Justin R. Crum, Orlando, for Appellants.
    Marshall S. Adler, Orlando, for Appel-lee.
   PER CURIAM.

The Employer/Carrier (E/C) raises three issues in this workers’ compensation appeal contending the Judge of Compensation Claims (JCC) erred in (1) awarding benefits that were not in default and ripe, due, and owing; (2) awarding attendant care benefits; and (3) denying the E/C’s motion for appointment of an expert medical advisor. We reverse as to the first two issues and find it unnecessary to address the third issue.

BACKGROUND

Since sustaining serious brain and hip injuries when he fell from a horse in a compensable accident on March 19, 1982, Claimant, now age 52, has lived with his parents and continues to work for the employer. On March 23, 2010, Claimant filed a petition for benefits requesting all benefits listed in a life care plan prepared on March 15, 2010, by Gem Pennachio, a vocational expert, rehabilitation counselor, and certified life care planner. Claimant also sought attorney’s fees and costs. In a motion to dismiss the petition for benefits and at the final hearing, the E/C contended, among other things, that: (1) the benefits requested were not ripe, due, and owing because the life care plan only dealt with projected evaluations; (2) the claim for attendant care was not accompanied by a prescription stating the time periods for such care, the level of care required, and the type of assistance required; and (3) the recommendations for medications were not accompanied by prescriptions from any authorized physician. With one minor exception, the JCC approved the life care plan and authorized the recommendations contained in it.

The items for which costs were estimated in the life care plan included attendant care for eight hours per day, beginning in 2010, the purpose of which was stated in the plan as providing a safe environment and financial management for Claimant. The plan stated that attendant care was recommended by Dr. Sharfman, Claimant’s treating neurologist. The plan also included the estimated costs of a projected hip replacement in 2015, assistive devices for the hip replacement, and medications after hip replacement as well as the estimated costs of an assisted living facility for Claimant beginning in 2025. On March 18, 2010, Dr. Sharfman signed a note stating that it was medically reasonable and necessary to implement all of the recommendations in the plan and that the accident was the cause of the need to implement the recommendations.

Claimant deposed Pennachio on September 23, 2010, more than six months after she had prepared the life care plan and Dr. Sharfman had signed the March 18, 2010, note endorsing it. The JCC admitted Pennachio’s deposition testimony at the final hearing. The JCC also admitted the deposition testimony of Dr. Evans, Claimant’s treating orthopedist, and Dr. Gerber, Claimant’s physiatrist. Dr. Sharf-man was not deposed, and his records (aside from the March 18, 2010, note) were not offered into evidence.

THE JCC’s ORDER

In the order on appeal, the JCC found Claimant’s mother handles Claimant’s finances, cooks, cleans, and takes him to doctor’s appointments and that Claimant is not independent in all activities. The JCC further found Claimant can bathe and dress himself, but requires supervision throughout the day, is incapable of living by himself, and requires monitoring of the kind provided by his mother since the accident. The JCC also found the recommendations in the life care plan were approved by Dr. Sharfman and Dr. Evans. Acknowledging that attendant care is not available for mere quality-of-life issues, the JCC nevertheless concluded Claimant was in need of passive, on-call attendant care because of his inability to think clearly. The JCC rejected the E/C’s argument that there was no prescription for attendant care and found that Dr. Sharfman’s note approving the life care plan incorporated the life care plan by reference. The JCC further found eight hours of daily attendant care awardable “irrespective of any gratuitous household duties,” based on Claimant’s mother’s testimony that she monitored Claimant when he was at home and kept in touch with him by cell phone when he was working.

The JCC also found some of the benefits recommended in the life care plan were not ripe, due, and owing, specifically identifying hip replacement surgery, assistive devices for the hip replacement, medications recommended in light of the hip replacement, and an assisted living facility.

The JCC then concluded:

I find that although there are benefits recommended that are not to be provided until some point in the future that does not prevent me from approving the life care plan as to those benefits now. I find that the parties would still be left in a position to move for modification of the life care plan should there be a change in condition or circumstances that no longer make such care appropriate. Modification of the plan can be had either by agreement of the parties or by a petition for modification. Therefore based on the recommendations of Dr. Sharfman I approve the plan (with the following exception) and find that it is reasonable, medically necessary and causally related to the industrial accident and the injuries flowing there from (sic).

With the exception of the recommendation for a chair lift recliner, the JCC then “approved” the life care plan and granted the “requested authorization of the recommendations made” in the life care plan. The JCC also found Claimant entitled to attorney’s fees and costs for securing the benefits awarded, reserving jurisdiction as to amount. In a subsequent order denying the E/C’s motion for rehearing/clarification, the JCC stated:

The [amended final compensation] order clearly indicates that although the life care plan proposed certain treatments and care as being required at certain points in the future, based on the doctors approval of the life care plan those future benefits are to be provided at the appointed times unless a change of condition or circumstance otherwise demands modification. The party seeking modification has the burden to pursue such as otherwise provided by law.

AWARD OF BENEFITS NOT IN DEFAULT AND RIPE, DUE, AND OWING

The E/C’s first point on appeal involves the JCC’s application of undisputed facts to the law because the JCC awarded benefits that he expressly found were not ripe, due, and owing. Thus, review is de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002).

Section 440.192, Florida Statutes (2009), provides in pertinent part:

(1) Any employee may, for any benefit that is ripe, due, and owing, file by certified mail, or by electronic means approved by the Deputy Chief Judge, with the Office of the Judges of Compensation Claims a petition for benefits which meets the requirements of this section and the definition of specificity in s. 440.02.
(3) A petition for benefits may contain a claim for past benefits and continuing benefits in any benefit category, but is limited to those in default and ripe, due, and owing on the date the petition is filed.

We have defined ripeness in this context as a “real, substantial controversy which is definite and concrete rather than hypothetical or abstract.” Soriano v. Gold Coast Aerial Lift, Inc., 705 So.2d 636 (Fla. 1st DCA 1998) (quoting Hallandale Prof'l Fire Fighters Local 2238 v. City of Hallandale, 922 F.2d 756, 760 (11th Cir.1991)).

Here, there is no question that a substantial portion of the benefits awarded were not “in default and ripe, due, and owing.” In fact, the JCC found the hip replacement surgery, assistive devices for the hip replacement, medications recommended in light of the hip replacement surgery, and the services of an assisted living facility were not ripe, due, and owing. To the extent the order can be interpreted as approving the life care plan, as opposed to awarding the benefits recommended in the life care plan, the order is still erroneous because (1) a life care plan is not in itself a benefit recognized under the workers’ compensation law, and (2) the JCC expressly stated that the E/C would have to modify the order before it could deny the benefits recommended in the life care plan although those benefits were not ripe, due, and owing. See Diamond R. Fertilizer v. Davis, 567 So.2d 451, 455 (Fla. 1st DCA 1990) (finding JCC erred in adopting life care plan as a whole rather than awarding only those benefits from plan which were supported by evidence of medical necessity). Consequently, the JCC’s award of “the recommendations made in the life care plan,” which he found were not ripe, due, and owing, was erroneous.

ATTENDANT CARE

The E/C’s second point on appeal challenges the JCC’s award of attendant care. To the extent the award of attendant care turns on a resolution of the facts, the review standard is competent, substantial evidence; to the extent it involves an interpretation of law, the standard is de novo. See Mylock v. Champion Int’l, 906 So.2d 363, 365 (Fla. 1st DCA 2005).

The applicable statute for awarding compensation for attendant care is the statute in effect at the time the compensa-ble care was given. Socolow v. Flanigans Enters., 877 So.2d 742, 744 (Fla. 1st DCA 2004). Section 440.13(2)(b), Florida Statutes (2009), provides in relevant part:

The employer shall provide appropriate professional or nonprofessional attendant care performed only at the direction and control of a physician when such care is medically necessary. The physician shall prescribe such care in writing. The employer or carrier shall not be responsible for such care until the prescription for attendant care is received by the employer and carrier, which shall specify the time periods for such care, the level of care required, and the type of assistance required. A prescription for attendant care shall not prescribe such care retroactively.

Even if Dr. Sharfman’s March 18, 2010, note stating that it is medically reasonable and medically necessary to implement all of the recommendations made in the life care plan is deemed sufficient to incorporate by reference the portions of the life care plan pertinent to attendant care, it still does not meet the requirements of section 440.13(2)(b) because it fails to specify the type of assistance and the level of care required. To the degree the life care plan addresses the types of assistance required, “providfing a] safe environment” is too vague to adequately describe the type of care required. In addition, financial management, identified in the life care plan as another purpose of the recommended attendant care, is not a com-pensable form of attendant care. See AT & T Wireless Servs., Inc. v. Castro, 896 So.2d 828, 831 (Fla. 1st DCA 2005) (“Normally, only direct care that is medically necessary is compensable.”). Finally, we reject Claimant’s suggestion that the deposition testimony of Pennachio and the testimony of Claimant’s mother at the final hearing adequately described the kind of attendant care recommended by Dr. Sharf-man. Section 440.13(2)(b) requires that the prescription itself specify the time periods for such care, the level of care required, and the type of assistance required.

The issue in this case is not whether passive or on-call attendant care is awardable. Indeed, this court has concluded such care is awardable when medically necessary. Jackson v. Columbia Pictures, 610 So.2d 1349 (Fla. 1st DCA 1992). The question in this case is whether such care is medically necessary and specifically prescribed by a physician as required by section 440.13(2)(b). Dr. Sharfman’s “prescription” was not specific, and Penna-chio’s testimony is not competent to establish medical necessity. See Adams Bldg. Materials, Inc. v. Brooks, 892 So.2d 527, 529-530 (Fla. 1st DCA 2004) (reversing attendant care award of 12 hours per day where vocational expert testified it was necessary, but physician did not). Accordingly, the award of attendant care must be reversed.

CONCLUSION

We reverse the JCC’s approval of the life care plan and the award of all benefits that were not in default and ripe, due, and owing when the petition for benefits was filed. We also reverse the award of attendant care benefits. Given this disposition, it is not necessary to address the JCC’s denial of the E/C’s motion for appointment of an expert medical advisor.

REVERSED and REMANDED for further proceedings.

HAWKES, THOMAS, and ROBERTS, JJ., Concur.

       "Life care planners prepare comprehensive projections of future medical care and treatment needs to aid economists in calculating the present value of future medical care and treatment.” Olges v. Dougherty, 856 So.2d 6, 8 n. 1 (Fla. 1st DCA 2003).


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Amanda Jean HALL, as Personal Representative for the Estate of Arthur Hall Sr., deceased, Appellee/Cross-Appellant.
    No. 1D10-2820.
    District Court of Appeal of Florida, First District.
    May 20, 2011.
    Stephanie E. Parker and Gregory G. Katsas, of Jones Day, Atlanta, Georgia; and Charles Trippe, of Moseley Prichard Parrish Knight & Jones, Jacksonville, Florida, for Appellant.
    Rod Smith, Mark A. Avera, and Dawn M. Vallejos-Nichols, of Avera & Smith, LLP, Gainsville, Florida; and John S. Mills and Gregory J. Philo, of The Mills Firm, Tallahassee, Florida, for Appellee.
   PER CURIAM.

AFFIRMED. See R.J. Reynolds Tobacco Co. v. Martin, 53 So.3d 1060 (Fla. 1st DCA 2010).

LEWIS, ROBERTS, and WETHERELL, JJ., concur.