text:
    Katina WILLIAMS, Appellant, v. CITY OF ORLANDO/City of Orlando Risk Management, Appellees.
    No. 1D11-4178.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Kelli Biferie Hastings of Bichler, Clel-land, Oliver, Kelley, Hastings, Longo, Spears & Parrish, PLLC, Maitland, and Adam Littman, Winter Park, for Appellant.
    Nicole D. Ruocco and Larry D. Spencer of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) denying com-pensability of her hypertension on the ground she failed to establish eligibility to rely on the statutory presumption of occupational causation available via section 112.18, Florida Statutes (2010). We reverse.

The E/C conceded Claimant met three of the four requirements of section 112.18 by being a police officer whose condition resulted in disability and who “successfully passed a physical examination upon entering into” service. The fourth statutory requirement is that the condition itself be one of those listed in section 112.18: “tuberculosis, heart disease, or hypertension.” This court has held such hypertension must be “arterial or cardiovascular.” See Bivens v. City of Lakeland, 993 So.2d 1100 (Fla. 1st DCA 2008) (citing City of Miami v. Thomas, 657 So.2d 927 (Fla. 1st DCA 1995)).

The JCC found Claimant failed to prove this final requirement.. Even though Claimant, diagnosed with “essential” hypertension, introduced unrefuted medical opinion testimony that “essential” hypertension is “the same thing” and “the same condition” as “arterial” hypertension, the JCC rejected that testimony. A JCC is permitted to reject even unrefuted medical testimony if he gives a reason, so as to permit appellate review. See Vadala v. Polk County Sch. Bd., 822 So.2d 582, 584 (Fla. 1st DCA 2002). Here, the reason the JCC gave is that the medical opinion contravenes his understanding of Bivens and Thomas. Because the JCC’s understanding of that case law is inaccurate, the JCC’s rejection of the unrefuted medical opinion testimony was unfounded.

Bivens does not hold that, as a matter of law, “essential” hypertension is not covered by section 112.18. To the contrary, Bivens, which also involved a claimant diagnosed with “essential” hypertension, was decided on the ground there was simply “no record evidence that the JCC could rely on” — an absence of evidence — to support a finding that the hypertension was arterial or cardiovascular. Bivens does not preclude a claimant from attempting to meet his burden to prove that whatever form of hypertension he may have is in fact “arterial or cardiovascular.” Bivens is limited to its facts: where a claimant seeking to rely on section 112.18 produces no evidence that his hypertension is arterial or cardiovascular, a JCC’s denial of com-pensability on that ground will be affirmed. Claimant here, in contrast, produced such evidence, and- because the JCC’s reason for rejecting that evidence was based on his misunderstanding of case law, the JCC erred in denying compensa-bility.

REVERSED and REMANDED for entry of an order consistent with this opinion.

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


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John Eugene BARTA, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-2365.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Nancy Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the denial of the motion to suppress without further discussion. We decline Appellant’s invitation to find section 893.13, Florida Statutes unconstitutional for the reasons expressed in Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

AFFIRMED.

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


text:
    George Leslie RAY, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1156.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    George Leslie Ray, III, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits. In order to be timely, a pleading invoking the court’s jurisdiction must be filed within the required time and merely mailing the notice within the required time period is not sufficient. Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998); Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991). Petitioner is not entitled to rely on the “mailbox rule” because there is no showing that petitioner was an inmate at the time the notice of appeal was served. See Fla. R.App. P. 9.420(a)(2) (providing that a “document filed by a pro se inmate confined in an institution is timely filed if the inmate places the document in the hands of an institution official for mailing on or before the last day for filing”); Haag v. State, 591 So.2d 614 (Fla.1992).

PETITION DENIED.

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


author: WOLF, J.

text:
    Robin Manuel WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3284.
    District Court of Appeal of Florida, First District.
    June 14, 2012.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his ten-year prison sentence for grand theft. He argues the trial court committed fundamental error by considering the truthfulness of his testimony when imposing his sentence. We agree and reverse.

At the sentencing hearing, the trial court said:

I could not do justice in this case unless I was sitting on the bench in Texas, because in my opinion, Mr. Williams is the sort of individual who deserves to go to prison for the rest of his life. If he was in Texas that is what would be occurring.
But our Legislature has not shown fit to allow that sort of enhancement for someone of Mr. Williams’ offense. Mr. Williams is a life long habitual thief and criminal. And not only is he that, but he took the stand in this particular case and clearly lied and perjured himself before the Court.
I see absolutely nothing in this case which warrants anything but the maximum habitual offender sentence.

(Emphasis added).

It is well established that “[wjhile a sentencing court has wide discretion as to the factors it may consider in imposing a sentence, it is constitutionally impermissible for it to consider the fact that a defendant continues to maintain his innocence and is unwilling to admit guilt.” Ritter v. State, 885 So.2d 413, 414 (Fla. 1st DCA 2004) (remanding for resentencing before a different judge). In Holton, the supreme court explained “[a] trial court violates due process by using a protestation of innocence against a defendant” because the Fifth Amendment protection against self-incrimination “applies to the penalty phase as well as to the guilt phase.” Holton v. State, 573 So.2d 284, 292 (Fla.1990).

This court in Jackson held that an appellant is entitled to resentencing before a different judge when “[t]he statement made by the trial court can reasonably be read only as conditioning the sentence, at least in part, upon appellant’s claim of innocence, in violation of established law.” Jackson v. State, 39 So.3d 427, 428 (Fla. 1st DCA 2010) (emphasis added).

In the case at hand, the trial court’s statement can reasonably be read as conditioning appellant’s sentence, at least in part, on the veracity of his testimony. As such, we reverse and remand for resen-tencing before a different judge.

REVERSED AND REMANDED.

LEWIS and THOMAS, JJ., concur.


text:
    A.P., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5899.
    District Court of Appeal of Florida, First District.
    June 14, 2012.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Donna A. Gerace and Angela R. Hensel, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

In this appeal, A.P. argues that the trial court erred in denying the defense motions for continuance and new trial which were based on the inability of A.P.’s mother to attend the adjudicatory hearing due to her hospitalization. The state properly concedes error. We, therefore, reverse the order adjudicating A.P. delinquent and remand for a new hearing. See J.R. v. State, 923 So.2d 1269 (Fla. 1st DCA 2006).

REVERSED AND REMANDED.

WOLF, ROWE, and SWANSON, JJ„ concur.