author: ROTHENBERG, J.

text:
    Luis MONTES-VALETON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2063.
    District Court of Appeal of Florida, Third District.
    March 12, 2014.

      Law Offices of John E. Bergendahl, and John E. Bergendahl, Miami, and Richard C. Klugh, Jr., Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   ROTHENBERG, J.

Luis Montes-Valeton (“the defendant”) appeals his conviction and sentence for driving under the influence causing serious bodily injury. Specifically, the defendant challenges (1) the admission of the results of a blood alcohol test performed on blood samples obtained from him at the scene of a single-vehicle accident that resulted in the death of a passenger in the vehicle being driven by the defendant, and (2) the admission of autopsy photographs of the victim into evidence. Because we find no error in the admission of the blood test results, and that any error in the admission of the autopsy photographs was harmless beyond a reasonable doubt, we affirm.

Admission of the Blood Test Results

The defendant raises two points of error regarding the admissibility of the blood test results. First, the defendant contends the trial court erred by admitting the blood test results because the State failed to present evidence that the blood was drawn by a qualified person pursuant to section 316.1933(2)(a), Florida Statutes (2008). At trial, defense counsel failed to make this specific argument when objecting to the admission of the blood test results. Therefore, this argument was not preserved for appellate review. See Till man v. State, 471 So.2d 32, 35 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”); Fike v. State, 4 So.3d 734, 737 (Fla. 5th DCA 2009) (“[T]he issue was not preserved for appellate review because the specific objection complained of on appeal was not raised below.”); Perera v. State, 873 So.2d 389, 391 (Fla. 3d DCA 2004) (“To preserve an issue for appeal, counsel must make a specific objection to the admission of the evidence.”).

In Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999), and then in Filan v. State, 768 So.2d 1100, 1101-02 (Fla. 4th DCA 2000), the Fourth District Court of Appeal specifically addressed the sufficiency, for preservation purposes, of an objection based on “improper predicate” or “lack of foundation” and held that such a general objection lacks the requisite specificity to preserve an objection for appellate purposes. We entirely agree with the Fourth District’s holding in Filan.

An issue or objection is “preserved” within the meaning of the statute if it was timely raised and ruled on by the trial judge and if the objection was “sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefore.” § 924.051(l)(b), Fla. Stat. (1999).
The evidence code also requires precision in objections. Section 90.104(l)(a), Florida Statutes (1999), provides that a court may reverse a judgment on the basis of admitted evidence when a “substantial right” of a party is affected and there is a timely objection or motion to strike in the record “stating the specific ground of objection if the specific ground was not apparent from the context.”
In Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999), we held that the “objection ‘lack of foundation,’ like its first cousin ‘improper predicate,’ is not a ‘specific ground of objection’ within the meaning of section 90.104(l)(a).” Jackson derives from the value that a trial should not be reduced to a guessing game:
The general, non-specific objection in this case — “lack of foundation” — did not alert the state or the trial court as to what portion was missing from the foundation for the admission of business records under section 90.803(6)(a). With a specific objection not only can the trial court make an intelligent and informed decision but it would also give the state an opportunity to correct the defects, where possible, by asking additional questions of the witness or calling an additional witness who might be able to correct the defects.

Filan, 768 So.2d at 1101-02 (quoting Jackson, 738 So.2d at 386).

In the instant case, the defendant’s counsel objected to the admission of the blood evidence based on “improper predicate.” Because section 316.1933 includes many requirements, the lack of specificity did not put the trial court or the State on notice as to the grounds for the objection to enable the trial court to make an “informed decision” or for the State to cure the alleged defects. Although defense counsel did eventually specify the grounds for his objection when he later moved for a judgment of acquittal, his argument came too late, as the evidence had already been admitted. The purpose of a motion for judgment of acquittal “is to test the legal sufficiency of the evidence presented by the State,” Hernandez v. State, 117 So.3d 778, 785 (Fla. 3d DCA 2013), not to object to evidence that was already admitted.

Second, the defendant argues the trial court erred by admitting the blood test results because the law enforcement officer did not have probable cause to believe the defendant was under the influence of alcoholic beverages before requiring the defendant to submit to the blood draw as required by section 316.1933(l)(a). As the record reflects that the law enforcement officer did not require the defendant to submit to the blood test, but rather the law enforcement officer obtained the blood sample after the defendant voluntarily consented to the blood draw, we find that this argument lacks merit. See State v. Geiss, 70 So.3d 642, 648 (Fla. 5th DCA 2011) (noting that “blood test results obtained by actual consent, independent of the implied consent statute [section 316.1932], are admissible”); see also State v. Murray, 51 So.3d 593, 595-96 (Fla. 5th DCA 2011); Kujawa v. State, 405 So.2d 251, 252 (Fla. 3d DCA 1981) (holding that the implied consent statutes are irrelevant when the defendant gives actual consent to a blood or breath test).

However, even if the defendant had not “voluntarily” consented to the blood draw, we conclude that the blood draw was also supported by probable cause, and the motion to suppress was therefore properly denied. See State v. Catt, 839 So.2d 757, 759 (Fla. 2d DCA 2003) (finding probable cause to compel a blood draw based on a traffic accident involving serious bodily injury where the vehicle was driven by the defendant whose breath smelled of alcohol); State v. Kliphouse, 771 So.2d 16, 21 (Fla. 4th DCA 2000) (concluding that evidence that the driver caused a serious or fatal accident coupled with evidence that his breath smelled of alcohol was enough to provide the officer with probable cause to believe the person had committed a DUI offense and therefore to request a blood test under section 316.1933(1)); State v. Silver, 498 So.2d 580, 581 (Fla. 4th DCA 1986) (reversing the trial court’s order suppressing the results of the defendant’s blood alcohol test and finding that where the defendant was the driver of a vehicle involved in a two-vehicle accident resulting in a fatality and the odor of alcohol was on the defendant’s breath, probable cause existed to arrest the defendant).

Additionally, although Sergeant Luis Tejera is the officer that smelled the odor of alcohol coming from the defendant’s breath and determined that the defendant was the driver of the vehicle involved in this single-vehicle accident in which the passenger was ejected and was transported from the scene in serious condition, under the fellow officer rule, Trooper Molina had probable cause to request that the defendant provide the blood drawn by fire rescue. The fellow officer rule provides that the arresting officer or, as here, the officer that requested the blood draw, may rely on the collective knowledge of the police officers involved in the investigation. Voorhees v. State, 699 So.2d 602, 609-10 (Fla.1997).

The Florida Supreme Court in Voo-rhees held that:

In broad terms, the collective knowledge of police investigating a crime is imputed to each member under a rule of law often called the “fellow officer rule” or “collective knowledge doctrine.” The exact contours of the rule are not entirely clear. Florida courts have tended to frame this doctrine in very sweeping terms, ....

Id. at 609 (quoting Johnson v. State, 660 So.2d 648, 657 (Fla.1995)). The Voorhees Court also specifically noted the holdings in United States v. Butler, 74 F.3d 916, 921 (9th Cir.1996), and People v. Ramirez-Portoreal, 88 N.Y.2d 99, 643 N.Y.S.2d 502, 666 N.E.2d 207, 215 (1996). Voorhees, 699 So.2d at 609-610. The Voorhees Court noted that in Butler, the Ninth Circuit found that “probable cause can be demonstrated through the collective knowledge of police officers involved in an investigation even if some of the information known to other officers is not communicated to the arresting officer.” Voorhees, 699 So.2d at 610 (citing Butler 74 F.3d at 921). Voo-rhees further recognized that in Ramirez-Portoreal, the Court of Appeals of New York found that the fellow officer rule applies even if the arresting officer lacks independent personal knowledge sufficient to establish probable cause. Voorhees, 699 So.2d at 609 (citing Ramirez-Portoreal, 643 N.Y.S.2d 502, 666 N.E.2d at 215). The arrest is lawful if the officer acts upon the direction of or as a result of the communication with another officer so long as the police as a whole are in possession of information constituting probable cause. Voorhees, 699 So.2d at 609; see also Strickroth v. State, 963 So.2d 366, 368 (Fla. 2d DCA 2007) (noting that the collective knowledge of the police investigating a crime is imputed to each member under the fellow officer rule, which can involve direct communications between officers who have sufficient information and the officer who stops the suspect, or it can involve general communications among officers when at least one officer possesses the required level of suspicion); State v. Bagley, 844 So.2d 688, 690 (Fla. 3d DCA 2003) (reversing the trial court’s order suppressing the evidence and finding that the trooper who stopped the van had probable cause based on the combined knowledge of the officers who were investigating the crimes and the BOLO they issued based on the fellow officer rule); Smith v. State, 719 So.2d 1018, 1022 (Fla. 3d DCA 1998) (finding that “[t]he ‘fellow officer’ rule is applicable whether the communication is from a superior, a fellow officer with the same police department, between different agencies or agencies at different levels within a state, between officials in different states, [or] between federal and state or local authorities[,]” and concluding that the knowledge of one officer is presumed to have been shared by others cooperating in an investigation, and thus the officer who stopped Smith was entitled to assume under the fellow officer rule that the officer requesting aid had sufficient information to support the stop). We, therefore, find no error in the admission of the blood test results in this case.

Admission of the Autopsy Photographs

The defendant also contends the trial court abused its discretion by allowing the State to introduce autopsy photographs of the victim into evidence. Although we agree that the trial court abused its discretion, we conclude that the error was harmless beyond a reasonable doubt.

Prior to the introduction of the autopsy photographs, the parties examined the medical examiner outside of the jury’s presence. The medical examiner explained that, even if the photographs were not introduced, he could testify as to the cause of the victim’s death and to what the photographs would show: bleeding beneath the defendant’s scalp and a fracture to his skull. Moreover, the record reflects that defense counsel did not argue, or even imply, that the victim’s injuries and subsequent death were not as a result of the accident. We therefore agree with the defendant that the probative value of the photographs was outweighed by its prejudicial effect and, thus, the trial court abused its discretion by introducing the photographs into evidence. See Czubak v. State, 570 So.2d 925, 929 (Fla.1990) (finding that the trial court erred by admitting autopsy photographs that had “little or no relevance”).

However, we conclude the error was harmless in light of the overwhelming evidence against the defendant — including evidence showing that the defendant’s blood alcohol level was 0.156 — and based on the jury’s verdict. The jury returned a verdict finding the defendant guilty of the lesser-included offense of driving under the influence causing serious bodily injury rather than DUI manslaughter, despite the victim’s death. Therefore, there is no reasonable doubt that the improper admission of the photographs did not affect the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (requiring the reviewing court to search the whole record and determine whether there is any reasonable doubt that the error played no role in the conviction).

Affirmed.

      . Section 316.1933(2)(a) provides in relevant part:
      Only a physician, certified paramedic, registered nurse, licensed practical nurse, other personnel authorized by a hospital to draw blood, or duly licensed clinical laboratory director, supervisor, technologist, or technician, acting at the request of a law enforcement officer, may withdraw blood for the purpose of determining the alcoholic content thereof or the presence of chemical substances or controlled substances therein....

      . Defense counsel also objected based on failure to establish chain of custody, an issue he has properly abandoned on appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HOP HIEU LE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-246.
    District Court of Appeal of Florida, Fifth District.
    April 1, 2014.
    Rehearing En Banc Denied June 27, 2014.
    Jeremy L. Hogan of Hogan & Hogan, P.A., Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Berry v. State, 668 So.2d 967 (Fla.1996).

TORPY, C.J., ORFINGER and COHEN, JJ., concur.


text:
    Michael TORREY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-0423.
    District Court of Appeal of Florida, First District.
    May 6, 2014.
    Rehearing Denied July 7, 2014.
    Michael Torrey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Fidel Perez GONI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2013.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    Fidel Perez Goni, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Stokes v. State, 3 So.3d 425 (Fla. 3d DCA 2009); Brinson v. State, 988 So.2d 665, 665-66 (Fla. 3d DCA 2008).


author: RAY, J. THOMAS, J.,

text:
    Arthur O’Berrell FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D13-2516, 1D13-2517, 1D13-2518.
    District Court of Appeal of Florida, First District.
    May 19, 2014.
    Rehearing Denied July 8, 2014.

      Nancy A. Daniels, Public Defender, Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

In these consolidated cases, Arthur O’Derrell Franklin, Appellant, appeals the partial summary denial of his motion for postconviction relief. Below, he argued that his several concurrent sentences of 1,000 years in prison, imposed in 1984 for crimes committed in 1983, are unconstitutional under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), despite the fact that they are parole-eligible. The circuit court rejected this claim, and Appellant now argues that he was entitled to either resentencing or an evi-dentiary hearing and to counsel to assist him at either proceeding. We affirm due to the facial insufficiency of Appellant’s claim.

Appellant’s motion argued that his sentences are unconstitutional under Graham because they do not afford him a meaningful opportunity for release upon a demonstration of maturity and rehabilitation. This argument was premised on the length of the 1,000-year sentences and the fact that the sentencing court retained jurisdiction, under section 947.16(3), Florida Statutes (1982 Supp.), to approve or deny any decision by the Parole Commission to release him during the first third of his sentence, or for 333-1/3 years.

The State conceded that the retention of jurisdiction arguably removed any chance of Appellant’s being released on parole. This concession was based partly on language in the sentencing court’s order indicating, as the State phrased it, an “intention to essentially deny the Defendant any opportunity to be released during his lifetime.” The State alleged that the retention of jurisdiction had “created” Appellant’s presumptive parole release date (“PPRD”), which was set for September 1, 2352, as of the dates of the postconviction proceedings. The State then hypothesized that if the court struck the retention-of-jurisdiction language in the sentencing orders, Appellant’s PPRD would be established within his lifetime.

The court agreed with the State and entered an order removing the retention of jurisdiction but otherwise denying Appellant’s motion.

On appeal, Appellant suggests that, despite the relinquishment of jurisdiction, he may never receive a PPRD within his lifetime due to the length of his sentence or perhaps other barriers within the parole process unrelated to his failure to demonstrate maturity and rehabilitation. He argues that he is entitled to a remand and the appointment of counsel to present these arguments to the circuit court at an evidentiary hearing.

A criminal defendant is not entitled to an evidentiary hearing on a motion for postconviction relief if “(1) the motion, files, and records in the case conclusively show that the [defendant] is entitled to no relief, or (2) the motion or a particular claim is legally insufficient.” Freeman v. State, 761 So.2d 1055, 1061 (Fla.2000). It is the defendant’s burden to establish “a prima facie case based upon a legally valid claim,” and “[m]ere conelusory allegations are not sufficient to meet this burden.” Id. This standard informs a trial court’s discretionary decision to grant or deny a request for counsel because, according to our state supreme court, “[tjhere is absolutely no duty to appoint counsel for an indigent defendant in a post-conviction relief proceeding unless the application on its face reflects a colorable or justiciable issue or a meritorious grievance.” Graham v. State, 372 So.2d 1363, 1366 (Fla.1979).

The issue Appellant presented to the circuit court was based on the United States Supreme Court’s holding in Graham, which forbids a sentence of life without the possibility of parole for a non-homicide offense committed by a juvenile. 560 U.S. at 77, 130 S.Ct. 2011. Graham does not foreclose the possibility that a juvenile non-homicide offender will remain behind bars for the duration of his or her life if that offender ultimately proves to be “irredeemable.” Id. at 75, 130 S.Ct. 2011. What Graham requires is that a juvenile non-homicide offender have “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. This Court has applied Graham to invalidate term-of-years sentences that amounted to de facto life sentences due to the combination of their lengths and the lack of parole eligibility. E.g., Floyd v. State, 87 So.3d 45, 46 (Fla. 1st DCA 2012); Adams v. State, — So.3d -, 2012 WL 3193932, 37 Fla. L. Weekly D1865 (Fla.2012). However, the extreme length of a sentence does not in itself establish a Graham violation when that sentence is parole-eligible and no constitutional deficiency in the parole system has been established.

In the proceedings below, Appellant alleged no facts, cited no legal authority, and made no argument to show that the Parole Commission is precluded from ever establishing a PPRD during his lifetime due to the sentence the court imposed. Although he argued that the parole system would not provide him with a meaningful opportunity for release, this argument was con-elusory at best. Without allegations indicating an inherent deficiency in the parole system’s ability to address a 1,000-year sentence consistently with Graham, as opposed to a failure on Appellant’s part to demonstrate maturity and rehabilitation, Appellant’s claim was legally insufficient to establish that his parole-eligible term-of-years sentence is unconstitutional.

The fact that Appellant’s PPRD is currently set at September 1, 2352, does not establish a Graham error in the sentence. The Parole Commission, not the sentencing court, is responsible for setting a parole-eligible prisoner’s PPRD and for periodically reviewing that determination. See §§ 947.13(l)(a), 947.16(4)-(5), 947.172, 947.174(2)-(3), Fla. Stat. (2013). If the Parole Commission violated the law or abused its discretion in establishing Appellant’s current PPRD outside his life expectancy while being legally able to establish it otherwise, then that error is a matter for review in proceedings challenging the establishment of the PPRD, not in a motion challenging the legality of the sentence from the outset. Cf. Johnson v. Fla. Parole Comm’n, 841 So.2d 615, 617 (Fla. 1st DCA 2003) (recognizing that prisoners may seek review of final orders of the Parole Commission in circuit court through a petition for an extraordinary writ); Fla. Parole Comm’n v. Huckelbury, 903 So.2d 977 (Fla. 1st DCA 2005) (reviewing a circuit court’s order on a petition challenging the suspension of an inmate’s PPRD).

We opine only that the claim before the circuit court did not provide the information or arguments necessary to hold Appellant’s sentence unconstitutional, even assuming the truth of every fact alleged. Because Appellant failed to set forth a prima facie case for relief, his motion was properly denied (to the extent it was). Moreover, due to the legal insufficiency of Appellant’s claim, the trial court was not required to afford Appellant an evidentiary hearing or attach records conclusively refuting his claim. For the same reason, the court was within its discretion to deny Appellant’s request for counsel. Accordingly, we AFFIRM.

SWANSON, J., concurs; THOMAS, J., concurs with opinion.

THOMAS, J.,

concurring.

I concur in the majority opinion but write to explain my reasoning. These three consolidated cases involve crimes committed in 1983 by Appellant at the age of 17. Appellant was convicted of 20 felony counts, including 17 life felony counts for armed robbery, unarmed robbery, armed kidnapping, aggravated assault, and armed sexual battery against multiple female victims, one of whom was raped ten times by Appellant and his co-defendants. The sentencing court in 1984 found that these crimes inflicted lifelong physical and mental injuries on the victims.

Citing these facts and other considerations, the trial court sentenced Appellant to concurrent parole-eligible terms totaling 1,000 years in state prison. In addition, the court retained jurisdiction over one-third of Appellant’s sentence; thus, the trial court could exercise a judicial veto over the Parole Commission’s authority to grant Appellant parole. See § 947.16(3), Fla. Stat. (1982 Supp.).

Under the United States Supreme Court’s opinion in Graham v. State, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), Appellant sought postconviction relief below in a rule 3.850 pro se motion. The trial court denied relief, but agreed to strike the original sentencing court’s retention of jurisdiction of any parole decision during the first third of Appellant’s sentence. Appellant now asserts through counsel that he is entitled to either an evidentiary hearing on his claim or resen-tencing with the appointment of counsel. Appellant claims he remains subject to a sentence imposed in violation of Graham, based on his Presumptive Parole Release Date (“PPRD”) established under Chapter 947, Florida Statutes.

It is ultimately within the discretion of the Florida Parole Commission as to whether Appellant will be released on parole. See §§ 947.002, 947.16, 947.18, Fla. Stat. (1981). Based on this eligibility for parole, Appellant’s sentence does not constitute cruel or unusual punishment under the Eighth Amendment to the United States Constitution, for the simple reason that Appellant remains eligible for parole reléase, and Graham did not hold that Appellant must actually receive parole to comply with the Eighth Amendment to the United States Constitution: “It bears emphasis, however, while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile non-homicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives.” Graham, 560 U.S. at 75, 130 S.Ct. 2011.

In the first case, Appellant and a co-defendant forced their way into the victim’s car while she was at a red light, then pushed the victim to the middle of the front seat, grabbed her hair, and slammed her head to the car floorboard. Appellant drove the car to another location. When the victim attempted to escape from the car, Appellant tackled her and smashed her head against the pavement, causing the victim to partially lose consciousness. Appellant then dragged the victim across the pavement, causing a burn on her skin. Appellant and the co-defendant then drove to a secluded area where Appellant raped the victim as his co-defendant searched the car for items of value, eventually taking $200 from the victim’s purse. The victim testified at trial that Appellant choked her during the sexual assault.

At the sentencing hearing, the victim testified that the crime had ruined her life. She now lived in constant fear, could not work, could no longer engage in marital relations with her husband, and was afraid to leave her home, because the attack occurred only a few blocks from her residence. The trial court noted that during the trial and sentencing, this victim stood almost the entire time, and at the end of her testimony completely “broke down and had to be helped from the courtroom after a long recess.” The court further noted that this criminal episode was committed by Appellant and his co-defendant showing a “conscious, well thought out, premeditated intent to commit these shameful, terrorizing and demeaning acts of violence.”

In the second case, Appellant and his co-defendant robbed a convenience store, held a knife to the back of a male employee, then forced a female employee to give them her car keys. Appellant and his co-defendant then forced the victim into the car’s back seat at gunpoint and drove the victim to a secluded area. During this time, Appellant told the victim that this was not the first time he and his co-defendant had committed similar crimes and “they would never serve a single day in jail.” Appellant’s co-defendant then asked Appellant if they should “take her where they took the other one.” Appellant replied that they should “take her to the new place we found.”

The sentencing court noted that while en route to the crime scene, the “defendants told the victim that they knew her and knew she recently had a baby,” which “terrified the victim.” At the secluded area, Appellant sexually assaulted the victim while his co-defendant held a gun to her head. The two men then switched places, and Appellant held the gun “inches from the victim’s head” while his co-defendant sexually battered her. The sentencing court noted that at some point, Appellant held the gun in the victim’s ear and “told her he was going to blow her brains out.”

Both Appellant and his co-defendant then searched the victim’s car and stole jewelry from her, including her wedding ring, which the victim begged them to let her keep because it meant so much to her. After robbing the victim, one of the defendants then kicked her in the head before they stole her car and fled, leaving her “in a dazed condition until she found help.”

At sentencing, the victim testified she was hospitalized for two weeks following the assault. Two days after the crime, “her physical and emotional condition deteriorated to the point that she had lost the use of her right arm and right leg” as a result of the emotional trauma caused by Appellant and his co-defendant. The trial court’s sentencing order notes that the victim testified that “she lives in constant fear,” could not care for her infant child, and “was not even emotionally able to leave her own home for six months following the crime.” The victim’s treating doctor testified that the acts committed against the victim “will have a crippling effect on all areas of her life — for the rest of her life.” The doctor stated that the victim would need mental treatment for several years. During the sentencing hearing, the victim “shook uncontrollably during her testimony.” She was “unable to be removed from her chair because of her emotional state for about 20 minutes.”

In the third criminal episode, Appellant and two others forced their way into the victim’s car and drove to a secluded area where all three men perpetrated various acts of sexual assault on her. The men then put the victim in the trunk of the car and drove to another location, where the assaults resumed. They later carried the victim to a railroad car where she was locked up for a period of hours, after which Appellant and one other co-defendant returned, removed the victim to a waiting car, and resumed the sexual assaults. Appellant was convicted of ten counts of sexual battery in this case. The sentencing order notes that the physician who performed the sexual battery exam testified that the victim suffered the worst injuries the physician had ever observed.

In the wake of Graham, Appellant argued that his 1000-year sentence, with the court retaining jurisdiction for 333-1/3 years, was disproportionate to his offenses, and thus in violation of the Eighth Amendment of the U.S. Constitution. Appellant also argued that his sentence violated the retroactive holding in Graham, because it denied him of any meaningful opportunity to obtain release within his lifetime. Thus, he requested the trial court to resentence him with a guideline sentence and order an evidentiary hearing.

The court denied the motion as to the disproportionate sentence argument, and it declined to resentence Appellant with a guideline sentence, because that option was not available under Chapter 921, Florida Statutes. Appellant does not challenge those rulings here.

The court below agreed to strike the original sentencing court’s retention of jurisdiction of any parole decision during the first third of Appellant’s sentence: Despite this grant of partial relief, however, Appellant asserts that he is entitled either to an evidentiary hearing on his claim under Graham, or a resentencing hearing that Appellant asserts must comport with Graham, by ensuring that Appellant receives a meaningful opportunity “for release based on demonstrated maturity and rehabilitation.” In essence, Appellant asserts that the trial court should not have considered any legal arguments regarding his claim without the appointment of counsel.

The State argues that no counsel was necessary, as the arguments involved do not require a complex legal analysis. In addition, the State asserts that because it is undisputed that Appellant has been and remains eligible for parole, his sentences comply with Graham regardless of whether his PPRD is set far beyond his life expectancy.

I agree with the State on both points. Regarding the merits of Appellant’s claim, Appellant is eligible for parole, thus, his sentences do not violate the decision in Graham. See Miller v. Alabama, — U.S. -, -, 132 S.Ct. 2455, 2469, 183 L.Ed.2d 407 (2012) (“We therefore hold that the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders.” (emphasis added)). Graham holds only that the State may not punish a juvenile convicted of a non-homicide crime with life in prison without the possibility of parole. Graham, 560 U.S. at 57, 130 S.Ct. 2011 (“Because Florida has abolished its parole system, a life sentence gives a defendant no possibility of release unless he is granted executive clemency.”) (citation omitted).

The State did not abolish parole eligibility for Appellant, who committed the above crimes before the effective dates of the sentencing guidelines legislation in Chapter 921, Florida Statutes. See Ch. 1984-328, Laws of Florida (effective Oct. 1,1984, and adopting court rules implementing sentencing guidelines); Smith v. State, 537 So.2d 982, 987 (Fla.1989) (holding sentencing guidelines and elimination of parole eligibility unconstitutional until date legislature adopted relevant rules, but valid thereafter, and discussing history of sentencing guidelines, noting that “the elimination of parole was an integral part of the sentencing guidelines legislation, and we are convinced it could not be severed from the statute.”). The United States Supreme Court has recognized that a life sentence with parole eligibility is necessarily a less punitive punishment than a non-parole-eligible sentence. See Warden, Lewisburg Penitentiary v. Marrero, 417 U.S. 653, 662-63, 94 S.Ct. 2532, 41 L.Ed.2d 383 (1974) (noting that when parole eligibility is removed, an “additional penalty” is imposed).

Appellant’s sentences are parole eligible, and now that the trial court has ordered that it will no longer retain jurisdiction under section 947.16(3), Florida Statutes, the Florida Parole Commission will determine whether Appellant will be released from his 1,000-year prison term and placed on community supervision. See §§ 947.002, 947.16(4), 947.18, Fla. Stat. The sentencing court has eliminated its authority to veto that decision by retaining jurisdiction, and while I render no opinion on whether this was a necessary act to comply with Graham, the State agreed to this action below and does not challenge it here.

I disagree with Appellant’s argument that the Parole Commission has somehow calculated Appellant’s PPRD in violation of the requirements of Graham. I further note that Appellant will receive periodic reviews by the Parole Commission, at least every seven years, where additional information can be considered. See §§ 947.16(5) & 947.174(2-3), Fla. Stat. In fact, Appellant acknowledged below that he has received periodic reviews from the Parole Commission.

Appellant’s reliance on Cunningham v. State, 54 So.3d 1045 (Fla. 3d DCA 2011), for the proposition that a parole-eligible inmate sentenced as a juvenile must have a PPRD established within his lifetime, is misplaced. Although the Third District in Cunningham noted that Cunningham had a PPRD in 2026, the context of that statement was simply to observe that Cunningham acknowledged that he was in fact eligible for parole as he had a PPRD in 2026, but not to hold that the date had to be within his natural lifetime. The court there further noted that Cunningham had a review in 2013, just as Appellant will receive his reviews by the Parole Commission. Even had the Third District held that an inmate sentenced for a crime committed when a juvenile must have a presumptive parole release date within his natural life, I would respectfully disagree, for the reasons stated above. See also Atwell v. State, 128 So.3d 167, 169 (Fla. 4th DCA 2013) (holding inmate sentenced for first-degree murder not entitled to postconviction relief where crime was committed when inmate was a juvenile, but sentence provided parole eligibility after serving 25-year minimum mandatory). Furthermore, the Third District’s decision in Lewis v. State, 118 So.3d 291 (Fla. 3d DCA 2013), recognizes that an inmate sentenced for a crime committed as a juvenile has no right to an eventual release on parole, where the Parole Commission has set his PPRD in 2042 based on Lewis’ misconduct in prison. And here, we cannot predict whether the Parole Commission will in fact one day accelerate Appellant’s PPRD based on good conduct, such that he may in fact be released on parole. That decision must be made by the Parole Commission and will depend at least in part on Appellant’s behavior.

I also find that Appellant’s reliance on People v. Caballero, 55 Cal.4th 262, 145 Cal.Rptr.3d 286, 282 P.3d 291 (2012), is misplaced. There, the defendant would not become eligible for parole until serving at least 110 years, and that court found the sentence to be the functional equivalent of a sentence of life without parole. Here, Appellant has always been, and remains, parole eligible.

Because Appellant has been and remains parole eligible, with periodic review for additional consideration, his sentence comports with the Eighth Amendment to the United States Constitution. Thus, under the undisputed facts of this case and the relevant law, Appellant is not entitled to postconviction relief, an evidentiary hearing, or resentencing, because his current sentence is legal under Florida law and is constitutional under federal law.

      . We express no opinion on whether the striking of the retention of jurisdiction had any effect on the legality of Appellant's sentence.


author: SALTER, J. SHEPHERD, C.J.,

text:
    Franklin RODRIGUEZ, Petitioner, v. Chad M. SMITH, Respondent.
    No. 3D13-2363.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Warren B. Kwavnick, Ft.Lauderdale, for petitioner.
    Nathalia M. Abondano, Key West, for respondent.

      Before SHEPHERD, C.J., and SALTER and LOGUE, JJ.
   SALTER, J.

Petitioner, Franklin Rodriguez, is the defendant in a circuit court personal injury lawsuit brought by the respondent, Chad Smith. Mr. Rodriguez seeks a writ of certiorari to quash a discovery order compelling him to answer special medical interrogatories, and allowing additional discovery, regarding his medical circumstances and injuries arising from the accident that is the subject of the lawsuit. As defendant, Mr. Rodriguez has not asserted any cause of action against Mr. Smith, and Mr. Rodriguez argues that only Mr. Smith’s alleged injuries are properly subject to pretrial discovery in the case.

Mr. Smith alleges that in the pre-dawn darkness on October 31, 2010, Mr. Rodriguez’s car ran out of gas on the single northbound lane of Seven Mile Bridge after Mr. Rodriguez had celebrated Fantasy Fest in Key West. Mr. Smith alleges that the hazard lights on Mr. Rodriguez’s car were not activated, and that Mr. Smith, on a motorcycle also proceeding northbound, sideswiped the stalled vehicle, with resulting serious injury to Mr. Smith.

In the course of pretrial discovery, Mr. Rodriguez testified that his leg or ankle had been struck, apparently by debris and while standing outside his vehicle, when Mr. Smith and his motorcycle struck Mr. Rodriguez’s vehicle. Mr. Smith propounded form medical interrogatories that went far beyond the injuries described by Mr. Rodriguez. Mr. Rodriguez objected, Mr. Smith moved to compel, and the trial court entered an order specifying that “Defendant [Rodriguez] will answer Plaintiffs [Smith’s] Special Medical Interrogatories,” and that “Plaintiff is entitled to discovery regarding the Defendant’s medical circumstances and injuries arising from this accident.” Mr. Rodriguez seeks certiorari directed to that order.

Analysis

Mr. Rodriguez is correct that an order compelling discovery of irrelevant, confidential personal medical records may meet the stringent tests for our certiorari jurisdiction. See Poston v. Wiggins, 112 So.3d 783 (Fla. 1st DCA 2013). To the extent that the trial court’s order required an answer to Mr. Smith’s special medical interrogatories without limitation, we might have exercised that jurisdiction to quash those portions of the order. For example, interrogatory number 6 directed Mr. Rodriguez to “[l]ist the names and business of all other physicians, medical facilities or other health care providers by whom or at which you have been examined or treated in the past ten years; and state as to each the dates of examination or treatment and the condition or injury for which you were examined or treated.” That interrogatory has no relationship whatsoever to Mr. Smith’s appropriate discovery requests seeking information regarding the sequence of events that allegedly injured both parties. The trial court’s written order did not restrict the interrogatory as much as the court had suggested during the hearing on the motion to compel.

In responding to the petition in this case, counsel for Mr. Smith commendably acknowledged that any responses to the facially overbroad interrogatories would be confined to those “regarding the Defendant/Petitioner’s medical circumstances and injuries arising from this accident ” (emphasis provided), confirming that the limitation set forth in the third paragraph of the trial court’s order regarding future discovery applied as well to the second paragraph of the order regarding the prior interrogatories.

Discovery of the nature and extent of Mr. Rodriguez’s injuries caused by flying debris from the collision could be pertinent to Mr. Smith’s proof regarding the location and force of the collision (allegedly causing Mr. Smith’s own injuries), or to his ability to provide information to the first responder in the aftermath of the incident, for example, and is thus within the scope allowed by Florida Rule of Civil Procedure 1.280(b)(1).

Following Mr. Smith’s concession, the petition demonstrates neither irreparable harm nor a departure from the essential requirements of law, such that it must be dismissed for lack of jurisdiction. See State Farm Fla. Ins. Co. v. Puig, 62 So.Bd 23, 25 (Fla. 3d DCA 2011); see also Cruz v. Cooperativa de Seguros Multiples de Puerto Rico, Inc., 76 So.3d 394 (Fla. 2d DCA 2011).

Petition dismissed.

LOGUE, J., concurs.

SHEPHERD, C.J.,

dissenting.

I would grant certiorari relief and quash the order directing the defendant in a negligence action to provide personal medical information even though the defendant has made no claim for damages arising from personal injury.

Chad M. Smith allegedly suffered injuries as a result of an accident involving an automobile driven by Franklin Rodriguez and a motorcycle operated by Smith. Each blamed the other for causing the accident, but only Smith sued for damages. In his deposition, Rodriguez denied his automobile was blocking traffic, and in describing the accident, stated he first became aware that something was wrong when he felt something strike his leg or ankle. Although Rodriguez admitted he was injured by the contact either with Smith’s motorcycle or debris, he denied filing any claim for his injuries. Based simply on this testimony, Rodriguez is being compelled to reveal confidential personal medical records which have no relevance to the matter at issue in this case, which is solely whether Rodriguez’ negligent actions caused Smith’ injuries.

In Poston v. Wiggins, 112 So.3d 783 (Fla. 1st DCA 2013), the First District reviewed a similar irrelevant request for medical information to a defendant in a personal injury case. As in this case, the defendant in Poston did not assert a claim for damages from the subject automobile accident but testified in her deposition that her osteoarthritis had gotten worse since the accident. Alleging the need to clarify an inconsistency between the defendant’s claim of no damages from the accident and her testimony regarding the worsening osteoarthritis, the plaintiffs requested the defendant’s post-accident medical records. Over the defendant’s objection, the trial court ordered production of the records.

The appellate court determined that the trial court erred in compelling production of the requested materials. First, the First District acknowledged that a person has a right to privacy in his or her medical records. The court reasoned that this right should not be violated where the defendant did not put her post-accident medical condition at issue in the case. With regard to the plaintiffs’ claimed need to clarify an inconsistency, the court stated, “even if an inconsistency were apparent, the petitioner’s injury is irrelevant to the issues in this case — whether the petitioner was negligent and whether the plaintiffs were injured and suffered damages as a result of this negligence.” Id. at 786.

For these same reasons, I believe Rodriguez has shown a departure from the essential requirements of law and irreparable harm in the order compelling production of his medical records. Neither the Smith’s “concession” nor the majority’s “limitation” persuade me to the contrary. Accordingly, I would grant the petition for writ of certiorari and quash the order entered below.


text:
    Robert LOWERY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2091.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Rehearing Denied July 9, 2014.
    Robert Lowery, 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.

WOLF, PADOVANO, and RAY, JJ„ concur.


text:
    Jasper Cornielous BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2145.
    District Court of Appeal of Florida, First District.
    May 30, 2014.
    Rehearing Denied July 7, 2014.
    Jasper Cornielous Brown, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


author: MARSTILLER, J. MAKAR, J., THOMAS, J.,

text:
    Jesus TREJO-PEREZ, Appellant, v. ARRY’S ROOFING/Builders Ins. Group, Appellees.
    No. 1D13-1889.
    District Court of Appeal of Florida, First District.
    June 3, 2014.
    Rehearing Denied July 8, 2014.

      Bill McCabe, Longwood, and Joey D. Oquist, St. Petersburg, for Appellant.
    David K. Beach and Nicolette E. Tsam-bis of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   MARSTILLER, J.

In this workers’ compensation appeal, Jesus Trejo-Perez (“Claimant”) challenges the denial of his request for referral to a Spanish-speaking psychologist as recommended by his authorized treating physician. He argues the Judge of Compensation Claims (“JCC”) erred by denying the request despite unrebutted medical testimony that a Spanish-speaking psychologist is medically necessary. Because the JCC, on this record, permissibly rejected the testimony as insufficient to establish medical necessity, we affirm the order on appeal.

Claimant suffered a closed head injury, among other injuries, when he fell from a ladder — a 30- to 40-foot drop — while working for a roofing company. The Employer/Carrier (“E/C”) accepted the accident and injuries as compensable and authorized treatment from several doctors, including Dr. Angelo Alves, a neurologist. Dr. Alves recommended that Claimant undergo neuropsychological evaluation with a Spanish-speaking psychologist. Claimant’s primary language is Spanish; it is unclear whether, and to what extent, he understands and can communicate in English. The E/C selected and authorized a psychiatrist, Dr. Forman, to perform the recommended evaluation, and made a translator available for any office visits. Claimant refused to attend the first scheduled visit, and subsequently filed a petition for benefits seeking, inter alia, authorization for a Spanish-speaking neuropsychologist.

The medical testimony at issue is that of Dr. Alves. He testified by deposition about Claimant’s physical injuries and the effects of his head injury. Dr. Alves saw Claimant three times; his patient notes were entered into evidence. They stated, in pertinent part:

[October 11, 2012]
[Claimant] needs to be evaluated further with a “Neuropsychological Evaluation” regarding his memory and cognition, as well as his emotional state, with particular attention to the PTSD.... [H]e needs to have the neuropsychological evaluation first with a Spanish-speaking neuropsychologist, and then, based on that, he needs cognitive and behavioral therapy.
[November 26, 2012]
The interview was conducted in both Spanish and English, because he does not really understand a lot of English. He needs to have a neuropsychological evaluation done by a Spanish speaking psychologist, and I think there is more than one in Tampa that could do the job for him.
[February 19, 2013]
He still does not understand any English, but his wife who speaks fairly good English, served as an interpreter, although I was able to communicate with him directly in Spanish, as I usually do.... I still think that he needs to have that neuropsychological evaluation, in detail with a Spanish speaking psychologist, and this is a must in this case so that he can exactly evaluate the degree of memory and cognitive impairments that he has.

When told that the E/C had made a translator available for Claimant’s psychiatric evaluation with Dr. Forman, Dr. Alves responded:

A. You know, it is not the same. You know why?
Q. Okay.
A. Because you could get the wrong information. You have to communicate with the patient. Psychiatric interview is very important. The same way I requested a neuropsychological evaluation as well to document the areas of deficit and, you know, again, it hasn’t been allowed. Now, in Tampa there are several psychologists and psychiatrists that speak Spanish, you know.

The doctor gave no further testimony about the need for a Spanish-speaking psychologist to perform the recommended evaluation. But he affirmed he had formed this and other opinions about Claimant’s condition and treatment needs “within a reasonable degree of medical certainty.”

In the final order denying Claimant’s request, the JCC found “Dr. Alves’ insistence on a Spanish-speaking psychiatrist and neuropsychologist is based solely on the possibility that one ‘could get the wrong information’ [and] does not equate to medical necessity.”

Discussion

Claimant argues the JCC ignored Dr. Alves’ unrebutted medical opinion testimony about the medical need for a Spanish-speaking psychologist to perform the neu-ropsychological evaluation. However, the question here is not whether the testimony was unrebutted, but whether it was sufficiently persuasive to the finder of fact, in the first instance, to establish medical necessity.

As this court has specifically recognized, in the workers’ compensation realm, “the [JCC’s] determination of reasonable medical certainty depends on the substance of the evidence, rather than the use of the ‘reasonable medical certainty’ terminology, or any other so-called ‘magic words/ by a medical witness.” Closet Maid v. Sykes, 763 So.2d 377, 383 (Fla. 1st DCA 2000) (emphasis added).

[T]he evidence should not be turned into a game of semantics. Instead, the resolution of such factual issues remains within the adjudicatory function of the judge based on the substance of the evidence presented, as measured against the specific statutory requirements regarding the evidentiary standard applicable to the determination.

Id. (emphasis added). Here, Dr. Alves used the “magic words,” but, based on the JCC’s permissible evaluation of this evidence, the substance of his testimony failed to establish reasonably medical certainty. To be sure, his testimony, as permissibly interpreted by the JCC, failed to substantiate the statement he made in Claimant’s patient record after the February 19, 2013, office visit, that a Spanish-speaking psychologist “is a must.” Rather, a fair reading of Dr. Alves’ testimony is that a Spanish-speaking psychologist would be merely preferable under the circumstances. Preferable, perhaps; but section 440.13(2)(a), Florida Statutes (2011), requires that recommended treatment be medically necessary if the employer is to pay for it. The JCC permissibly determined that Dr. Alves’ testimony failed to satisfy this statutory requirement as to the recommendation for a Spanish-speaking psychologist, and for that reason, the JCC did not err in rejecting the testimony.

In any event, unrebutted medical testimony can be rejected, so long as there is a reasonable evidentiary basis for doing so. As our supreme court explained in Wald v. Grainger, 64 So.3d 1201 (Fla.2011), a reasonable basis for the fact finder to reject medical opinion testimony “can include conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, [or] conflicting lay testimony or evidence that disputes the [ ] claim [.]” 64 So.3d at 1206 (emphasis added). Thus, the fact that medical opinion testimony is un-rebutted does not preclude the fact finder from rejecting it, so long as there is some reasonable basis in the record that casts doubt on the testimony. Wald preserves the well-settled and longstanding principle that it is in the fact finder’s province to weigh the evidence presented, resolve evi-dentiary inconsistencies, and judge the credibility of witnesses.

The JCC here took into account evidence of Claimant’s ability to communicate in English and communicate successfully with his physicians, and his reason for not attending the appointment with Dr. For-man. As to the latter, Claimant testified (through an interpreter), “I didn’t want to do it through an interpreter because for me to see a psychologist or a psychiatrist is to talk about my intimate life, and I don’t want to talk about my intimate life to another person.” The JCC concluded:

Claimant’s explanation for his refusal to attend the appointment with Dr. For-man [is] inadequate and unpersuasive .... Claimant seems to have had no difficulty making himself understood by any of the other physicians who treated him. While there is no evidence that all of Claimant’s authorized treating physicians speak Spanish, Claimant did testify that Dr. Alves speak[s] “a little” Spanish, which allowed them to communicate successfully. Simply put, the undersigned does not believe Claimant’s explanation for why he needs a Spanish-speaking psychiatrist and neurologist, but does not need a Spanish-speaking physician to treat his physical injuries .... While it may well be reasonable for Claimant to prefer a Spanish-speaking physician, a careful reading of Dr. Alves’ testimony on this issue fails to yield any evidence of medical necessity.

Unrebutted though Dr. Alves’ testimony may have been, Claimant’s statements cast doubt on the testimony in that they reveal a non-medical, patient-driven reason for the doctor’s recommendation. The JCC found and articulated a reasonable eviden-tiary basis — Claimant’s own testimony — on which to reject the doctor’s testimony as to the need for a Spanish-speaking psychologist. This was permissible under Wald.

Accordingly, the final order on appeal is AFFIRMED.

MAKAR, J., concurring with opinion.

THOMAS, J., dissenting with opinion.

MAKAR, J.,

concurring.

An ongoing challenge to the delivery of health care services nationwide and in Florida is the broadening and deepening range of the workforce that speaks different primary languages. Language access for persons of limited English proficiency (LEP) seeking health care services is governed by a continually evolving legal framework, one that includes federal civil rights and disability laws (which generally prevent discrimination against persons whose primary language is not English in federally-funded health and human services programs) as well as state laws (which range from comprehensive language laws (e.g., California) to discrete laws addressing situations such as mandating interpreters for commitment proceedings (e.g., Illinois)).

Making health care services more accessible to LEP patients, as one might expect, is a Herculean and glacial task. One reason is the sheer multiplicity of languages. About 337 languages are spoken in the United States, twenty-four of which have over 200,000 speakers; Florida’s language diversity is equally impressive. Attempting to accommodate access to health care information and services to this wide-ranging landscape of languages is of obvious difficulty, requiring complicated policy decisions at the federal and state levels that take time to analyze, make, and then implement.

A related reason is the determination of how language access is to be achieved, a factor driven to some extent by the cost and supply of health care resources. Claimants justifiably want medical providers with whom they can communicate effectively in their primary languages, but the supply of and cost for meeting this demand can be limited and prohibitive, respectively. In an ideal world with unlimited resources, patients would have health care information published in their own primary languages, and their health care service providers would speak their primary languages. Because this ideal is unattainable, the trajectory of the language access movement in the United States currently has gravitated to the use of translators (for written communication) and interpreters (for verbal communication) in the medical context; typically — but not always — translators and interpreters convert communications in the English language into the primary language of the patient, which is consistent with language demographics. For example, 73% of Florida’s population speaks English at home as its primary language and about 75% of those whose primary language is not English speak English “very well” or “well.” Even then, states have focused primarily on improving language access in communications involving patient education, informed consent, and specific medical conditions. “Less commonly, states have enacted laws mandating provision of language assistance services [including translators and interpreters], typically either through specific types of facilities, or as a condition of licensure.” This expansion over time of the use of translators and interpreters has led to the deployment of continuing education programs that focus on language access and cultural awareness issues that impact the provision of health care services; it has also spawned a movement toward certification of health care interpreters.

All this said, not a single law or program, federal or state, appears to create an entitlement for LEP patients to a health care provider who speaks the patient’s primary language. Instead, it appears that the governing standard is that an interpreter is used when required to ensure non-discrimination in the delivery of medically necessary health care services.

This standard prevails in the workers’ compensation context in Florida, which distinguishes between what is medically desirable versus what is “medically necessary,” the latter being the statutory standard that applies to determine whether a particular medical service is justified. The statute states that claimants are entitled to services that are “medically necessary” or a “medical necessity” both of which are defined to mean:

any medical service or medical supply which is used to identify or treat an illness or injury, is appropriate to the patient’s diagnosis and status of recovery, and is consistent with the location of service, the level of care provided, and applicable practice parameters. The service should be widely accepted among practicing health care providers, based on scientific criteria, and determined to be reasonably safe. The service must not be of an experimental, investigative, or research nature.

§ 440.13(k), Fla. Stat. (2014). Determining medical necessity is a multi-factored inquiry, but one that emphasizes: (1) consistency with practice parameters in the profession, and (2) whether the medical service is “widely accepted among practicing health care providers.” Id.

In this case, Mr. Trejo-Perez — who suffers from severe injuries — needs a psychiatric evaluation. The services of a qualified psychiatrist and a Spanish language interpreter have been made available for this purpose. He has rejected those services, however, claiming that he is entitled statutorily to a psychiatrist who speaks his primary language based on the testimony of Dr. Angelo M. Alves, who asserts an evaluation by a Spanish-speaking psychiatrist is a “must” in Mr. Trejo-Perez’s case.

The sole legal question is whether Dr. Alves’s testimony compels the provision of the Spanish-speaking psychiatrist as “medically necessary” under the statute. Undoubtedly, patients and physicians desire to speak in a common language to avoid potential miscommunication; this commonality is highly desirable whether the physician is a gastroenterologist, ophthalmologist or a psychiatrist. Linguistic desirability, however, is not medical necessity absent a specific showing that the use of an interpreter is inconsistent with prevailing practice parameters and that a linguistieally-compatible psychiatrist is a widely accepted practice among those practicing in this field.

In this regard, no evidence in the record addresses whether use of a linguistieally-compatible interpreter is incompatible with prevailing practice parameters in the provision of health care services generally or psychiatric services specifically. Likewise, the record is silent on whether the field of psychiatry has adopted — as a widely accepted practice — a requirement that patients are entitled to a primary-language-speaking psychiatrist. On this basis alone, it was proper to conclude that the provision of a qualified psychiatrist, coupled with an interpreter, met prevailing standards of care.

Dr. Alves’s testimony addressed neither of the two statutory requirements. While saying it is “a must in this case” to “exactly evaluate the degree” of memory loss and cognitive impairments, his justification was that using an interpreter could result in “the wrong information” because “[y]ou have to communicate with the patient.” But this rationale is one that applies to any medical specialty. Nothing in the record shows that the use of an interpreter in this context is sufficiently different from other specialties to conclude that a linguistieally-compatible psychiatrist is medically justified. Physicians have to communicate with patients, and accurate information is important; but Dr. Alves’s testimony falls short of establishing the “medical necessity” of his recommendation.

That said, Dr. Alves recommendation of a Spanish-speaking psychiatrist is not a mere velleity. Linguistic nuances may have greater medical importance in the psychiatric context versus other medical specialties; circumstances may exist where a linguistieally-compatible psychiatrist is so important in a particular context as to be “medically necessary” within Florida’s statutory definition. But medical necessity must be based on more than linguistic desirability under the existing statutory standard, which requires a practice be widely accepted and prevailing, in the medical community. With these observations, I concur in Judge Marstiller’s opinion.

THOMAS, J.,

dissenting.

I dissent, because in this case of first impression the majority opinion incorrectly denies a Spanish-speaking Claimant a medically necessary evaluation by a Spanish-speaking psychiatrist, a treatment which Claimant’s authorized treating neurologist specifically recommended that Claimant receive. No medical testimony supports the JCC’s view that the Spanish-speaking psychiatric evaluation is not medically necessary. In fact, as Claimant rightfully asserts, there is no contrary medical testimony at all on this point — the JCC simply rendered her own unqualified and unsubstantiated medical opinion, which is contrary to section 440.13(2)(a), Florida Statutes.

But the majority opinion disregards this lack of medical testimony to contradict the treating neurologist’s testimony, and Claimant’s testimony, that the presence of a non-psychiatric interpreter would interfere in the sensitive nature of the psychotherapist-patient relationship. In fact, the relationship between a patient and psychotherapist is so important that the Florida Legislature accords those communications an evidentiary privilege, provided in section 90.503, Florida Statutes. Furthermore, and perhaps even more significant, is the majority opinion’s adverse practical impact, although surely not its intent, which establishes a precedent by which Spanish-speaking employees can be required to accept a lesser standard of medical care in Florida than English-speaking employees, who could not be required to accept the presence of a third-party layperson during medically necessary, intimate psychotherapist-patient treatment sessions.

The majority’s holding requiring the participation of an interpreter in Claimant’s undisputedly necessary medical treatment is supported by neither chapter 440 nor case law. In fact, the very Florida Supreme Court opinion relied on by the majority rejects the majority’s view. See Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla.2011) (“[T]he jury’s ability to reject [expert] testimony must be based on some reasonable basis in the evidence.” (emphasis added)). Here, the JCC failed to give a “reason” for rejecting the neurologist’s un-rebutted testimony that Claimant needed an evaluation by a Spanish-speaking psychiatrist — the JCC simply disagreed with the conclusion, without evidentiary support of any kind, expert or lay.

In this regard, it must be noted that the majority opinion concludes on a contradictory basis that, because the JCC doubted Claimant’s testimony that he relies on Spanish to communicate, this was a “reasonable evidentiary basis — Claimant’s own testimony — on which to reject the doctor’s testimony as the need for a Spanish-speaking psychologist.” But if this were true, why have a translator at all? Either Claimant’s primary language is Spanish, or it isn’t. Obviously, the E/C and the JCC must have thought that Claimant’s primary language was Spanish, or a translator would not have even been considered. So, doubting this fact cannot be a basis for rejecting unrebutted expert medical testimony, if the very reason a translator was offered was in fact because Claimant’s primary language is indeed Spanish.

Thus, this case necessarily turns on the issue of whether a Spanish-speaking employee may be required to accept psychiatric evaluation by a non-Spanish speaking psychiatrist, against the medical opinion of a treating neurologist. The obvious answer in my view is no, because to do so is to deny medically necessary treatment in violation of Chapter 440.

The JCC is not permitted to disregard unrebutted medical testimony, without relying on some rationale evidence. See Vadala v. Polk Cnty. Sch. Bd., 822 So.2d 582, 584 (Fla. 1st DCA 2002). In addition, “when medical evidence ... is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it.” Grainger, 64 So.3d at 1205. See also Long v. Moore, 626 So.2d 1387, 1389 (Fla. 1st DCA 1993) (reversing judgment denying complaint for recission of contract based on mental incompetence and noting that “[t]he trial court should accept unre-butted expert testimony on highly technical matters, unless it is so palpably incredible, illogical and unreasonable as to be unworthy of belief or otherwise open to doubt from some reasonable point of view”). It is true that “when facts sought to be proved by expert testimony are within the ordinary experience of the fact-finder, or disputed by lay testimony, the conclusion to be drawn from the expert testimony will be left to the fact-finder.” Id. But it is not the case that translation from Spanish to English for purposes of psychiatric evaluations is within the ordinary experience of JCCs, who are not trained in medicine.

The Florida Legislature has unequivocally required that JCCs defer to medical testimony in resolving medical disputes. See §§ 440.13(9)(c) & 440.25(4)(d), Fla. Stat. Had the E/C provided any evidence of a conflict between medical experts, the JCC would not be authorized to simply choose which doctor to rely on, but must appoint an Expert Medical Advisor (“EMA”) to provide an opinion which is presumed correct. Romero v. JB Painting & Waterproofing, Inc., 38 So.3d 836, 838 (Fla. 1st DCA 2010) (“If there is a disagreement in the opinions of health care providers, the JCC shall appoint an EMA.” (emphasis added)). Here, there was not a conflict, thus, the JCC had no authority to reject the unrebutted testimony of Dr. Alves that Claimant required evaluation by a Spanish-speaking psychiatrist.

Section 440.13(2)(a), Florida Statutes (2011), requires that the employer furnish such medically necessary treatment, care, and attendance for such period as the nature of the injury or the process of recovery requires. “Medically necessary” means any medical service which is used to identify or treat an illness or injury, and is appropriate to the patient’s diagnosis and status of recovery. § 440.13(l)(i), Fla. Stat. (2011). The term treatment, although undefined in the Workers’ Compensation Act, is a “broad term covering all the steps taken to effect a cure of an injury or disease; including examination and diagnosis as well as application of remedies.” Nunez v. Pulte Homes, Inc., 985 So.2d 695, 696-97 (Fla. 1st DCA 2008) (quoting Black’s Law Dictionary) (emphasis in original). Further, this court has commented that chapter 440’s definition of “medical necessity” is broad, and could potentially include any medical service that is shown to be medically necessary. See Fla. Detroit Diesel v. Nathai, 28 So.3d 182, 185 (Fla. 1st DCA 2010) (summarily affirming JCC’s award of second opinion notwithstanding the absence of express right for same under chapter 440, by interpreting the statutory phrase “medically necessary” as broad phrase which “could potentially include ‘any’ medical service that is shown to be necessary”). Here, Dr. Alves’s opinion that the psychiatrist must be Spanish-speaking is unrefuted.

The JCC’s reason for rejecting Dr. Alves’s opinion that the psychiatrist must be Spanish-speaking is without a reasonable basis; the “reason” given — specifically that “[provision of an interpreter is sufficient to ensure that Claimant receives the care being recommended” — is really only mere contradiction, and is without evidentiary or rational foundation — which is the very type of fanciful factfinding that this court is established to guard against. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993) (en banc) (“The role of this court must be to guard against fanciful or arbitrary abuse of discretion in workers’ compensation cases_”). Here, whether we consider the issue on appeal as solely a matter of law, or a mixed question of law and fact, the JCC’s ruling is without foundation in law or fact, and is a perfect example of an “arbitrary abuse of discretion.” Id. Even applying a deferential standard of review, therefore, we should reverse.

The only medical evidence in the record — which the JCC gave no adequate reason to reject — is that a Spanish-speaking psychiatrist is medically necessary. Claimant is correct that the E/C is obligated to provide care for the compensable injury if that care is “medically necessary.” It follows that the JCC reversibly erred in not ordering the E/C to authorize a Spanish-speaking psychiatrist.

We should therefore reverse and remand with directions to enter an order granting Claimant’s petition for benefits and appointment of a Spanish-speaking psychiatrist, which may be one selected by the E/C.

       Claimant testified he has translators for his medical appointments, but that Dr. Alves speaks some Spanish. Notably, he also testified his wife, who helps him understand the documents he receives related to his case, speaks "little Spanish, whatever she has been able to learn with me.” We also observe that Dr. Alves' patient notes, excerpts of which are quoted above, contain conflicting statements regarding the extent of Claimant's ability to communicate in English.

      . See generally Alice Hm Chen et al., The Legal Framework for Language Access in Healthcare Settings: Title VI and Beyond, 22 J. of Gen. Int. Med. 362 (Supp. 2 2007) (providing a general overview of federal and state laws related to language rights in the health care market) (last visited May 8, 2014).

      . See generally Jane Perkins & Mara Youde-lan, Summary of State Law Requirements Addressing Language Needs in Health Care, National Health Law Program at 4 (Jan. 2008), available at http://www.healthlaw.org/ publications/summary-of-state-law-requirements-addressing-language-needs-in-health-care (compiling and providing "citation to and a short description of each state’s statutes and regulations regarding services to LEP persons in health care settings.”) (last visited May 8, 2014).

      . See Languages of the United States, Wikipedia, http://en.wikipedia.orgAviki/Languages_ of_the_United_States# MainJanguages (last visited May 8, 2014).

      . See Florida, Wikipedia, http://en.wikipedia. org/wiki/Florida (last visited May 8, 2014).

      . See Modem Language Association Language Map Data Center, http://www.mla.org/ map_data (search of Florida for the year 2010) (last visited May 8, 2014).

      . Chen, supra note 1, at 364.

      . Id.

      . See Alvaro DeCola, Making Language Access to Health Care Meaningful: The Need for a Federal Health Care Interpreters’ Statute, 24 J.L. & Health 151, 154 (2010) ("Language access barriers will not be overcome unless new statutory guidance is enacted that addresses both national standards for medical interpreters and translators, and procedures to strictly enforce current federal laws related to language access.”).


author: RAY, J.

text:
    Wilman Ramon COLLANDO-PENA, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-3378.
    District Court of Appeal of Florida, First District.
    June 3, 2014.
    Rehearing Denied July 9, 2014.

      Nancy A. Daniels, Public Defender; and David A. Henson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   RAY, J.

Wilman R. Collando-Pena appeals his convictions for attempted first-degree murder with a firearm, and armed burglary of a dwelling with a firearm. In the initial brief filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), counsel could not argue in good faith that the trial court reversibly erred. Appellant elected not to file a brief on his own behalf. Based upon our full and independent review of the record, we find no fundamental or preserved reversible error. Accordingly, we affirm Appellant’s judgment and sentence, and write only to explain why the sentencing errors raised by Anders counsel in a motion to correct sentencing error filed after the period for initial briefing expired were not preserved for appellate review.

After appellate counsel filed the Anders brief, we issued a standard order allowing Appellant to file a pro se initial brief within thirty days. In that order, we stated that the failure to file a pro se brief within the time allotted would result in the presentation of this case to the panel for resolution. Appellant did not file a pro se brief, the thirty-day deadline passed, and this case was perfected and assigned.

At that point, we assumed the affirmative duty “to conduct[ ] a full and independent review of the record to discover any arguable issues apparent on the face of the record.” In re Appellate Court Response to Anders Briefs, 581 So.2d 149, 151 (Fla. 1991); see State v. Causey, 503 So.2d 321, 322-23 (Fla.1987). After identifying potentially meritorious issues relating to sentencing, we issued a Causey order directing counsel to file a supplemental brief specifically addressing these points. Rather than do so, Anders counsel filed a notice of having filed a motion to correct sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), possibly prompted by counsel’s concerns that the sentencing errors were not properly preserved for appellate review.

An appellate court may only entertain a sentencing error if the issue has been preserved in the trial court through either an objection at the time of sentencing or a timely motion under Florida Rule of Criminal Procedure 3.800(b). Fla. R. App. P. 9.140(e); see Brannon v. State, 850 So.2d 452, 456 (Fla.2003). When the motion is filed during the pendency of an appeal, as it was in this case, rule 3.800(b)(2) provides as follows:

Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s fírst brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(f)(6).

(italics in original, boldface added). This rule was intended “to give both parties a limited right to file a motion in the trial court during the initial stages of the appeal without requiring the appellate court to enter any order relinquishing jurisdiction.” Amendments to Fla. R. Crim. P. 3.111(e) & 3.800 and Fla. R. App. P. 9.020(h), 9.HO, and 9.600, 761 So.2d 1015,1018 (Fla. 1999) (quoting Emergency Pet. to Amend Fla. R. Crim. P. 3.800 and Fla. Rule of App. Pro. 9.020(h), 9.140, and 9.600 at 4) (emphasis added).

Specific to Anders appeals, we have held that the Anders brief is not the “party’s first brief,” for purposes of this time bar because the appellant is entitled to thereafter proceed pro se and file a merits brief. Proctor v. State, 901 So.2d 994, 995 (Fla. 1st DCA 2005). Accordingly, an appellant is permitted to file a motion to correct sentencing error in the trial court after the Anders brief is served but before the appellant’s pro se brief is served. See id.; cf. Paige v. State, 921 So.2d 9 (Fla. 1st DCA 2005) (on appellant’s motion to withdraw initial brief) (concluding, in a non-Anders direct appeal, that the filing/service of the initial brief foreclosed defendant’s right to pursue a rule 3.800(b)(2) remedy to correct sentencing error).

In this case, the motion to correct sentencing error was filed in the trial court after the Anders brief was served and after the time had elapsed for Appellant to timely file and serve a pro se brief. Under these circumstances, we find that the motion is untimely. See Collins v. State, 17 So.3d 790, 791 n. 2 (Fla. 5th DCA 2009) (recognizing that a rule 3.800(b)(2) motion may be filed in the trial court while an Anders appeal is pending until the time elapses for the appellant to file a pro se brief).

The language in rule 3.800(b)(2) contemplates an end point after which time the trial court no longer has concurrent jurisdiction to correct sentencing errors during the pendency of an appeal. Once the period for filing and serving a pro se brief has expired, the appeal is perfected, and the appellate court assumes the duty under Anders and its Florida progeny to conduct an independent review for arguable issues apparent on the face of the record. While the trial court is generally the preferred venue for addressing sentencing errors, once the Anders review is triggered, judicial efficiency is best achieved by allowing this process to proceed to completion. Sanctioning an open-ended and indefinite time period for filing a 3.800(b)(2) motion in Anders appeals, where no pro se brief has been served, runs contrary to the limited nature of the right to correct and preserve sentencing errors in the trial court during the pen-dency of an appeal.

Having found no preserved errors for review, we affirm Appellant’s judgment and sentence, without prejudice to his right to seek timely collateral relief. See Washington v. State, 814 So.2d 1187, 1189-90 (Fla. 5th DCA 2002).

ROWE and MARSTILLER, JJ., concur.

      . Appellant’s motion to correct sentencing error was filed in the trial court approximately two months after the deadline for filing a pro se brief had passed.


text:
    Brett FENSTER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1983.
    District Court of Appeal of Florida, Fourth District.
    June 4, 2014.
    Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

The defendant appealed from a conviction and sentence for attempted second degree murder as a lesser included offense of attempted first degree murder. This court affirmed. Fenster v. State, 61 So.3d 465 (Fla. 4th DCA 2011). Our affirmance was based on our opinion in Williams v. State, 40 So.3d 72 (Fla. 4th DCA 2010) (Williams I”). Williams I held that the giving of the standard jury instruction on attempted manslaughter was not fundamental error in a prosecution for attempted first degree murder in which the defendant was convicted of the lesser included offense of attempted second degree murder. Id. at 74-75.

The defendant petitioned for review in the Florida Supreme Court. While the petition was pending, the Florida Supreme Court quashed this court’s opinion in Williams I. Williams v. State, 123 So.3d 23, 30 (Fla.2013) (“Williams II”). The Court held:

[A] trial court commits fundamental error in giving the standard jury instruction on attempted manslaughter by act where the defendant is convicted of a crime no more than one step removed from the improperly instructed offense.

Id. at 27. The Court then quashed this court’s opinion in this case, and remanded for reconsideration upon application of its opinion in Williams II. Fenster v. State, 135 So.3d 288 (Fla.2014).

In light of Williams II, we hold that the trial court committed fundamental error in giving the standard jury instruction on attempted manslaughter. We reverse and remand for a new trial on the charge of attempted second degree murder.

Reversed and remanded for proceedings consistent with this opinion.

TAYLOR and GERBER, JJ., and PEGG, ROBERT L., Associate Judge, concur.


author: PER CURIAM. SWANSON, J.,

text:
    BREVARD COUNTY SCHOOL BOARD and Sedgwick Claims Services, Appellants, v. Maria ACOSTA, Appellee.
    No. 1D13-4503.
    District Court of Appeal of Florida, First District.
    June 9, 2014.
    Rehearing Denied July 7, 2014.

      William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Orlando, Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, and Dennis D. Smejkal of the Law Office of Dennis Dean Smejkal, P.A., Orlando, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) challenges a determination by the Judge of Compensation Claims (JCC) that surgical repair of Claimant’s left shoulder condition is com-pensable based on the hindrance-to-recovery doctrine. Because we agree that the JCC misapplied the doctrine, we reverse.

The E/C in this case accepted compensa-bility of Claimant’s February 7, 2012, right shoulder injury, but denied responsibility for a proposed surgery to repair Claimant’s left shoulder condition, which was not caused by Claimant’s workplace activities. In the only medical testimony presented here, Dr. White confirmed that Claimant requires surgery for each shoulder and that the two shoulder conditions are not connected. Dr. White also opined that the result from the (non-compensable) left shoulder repair will be better if the left shoulder surgery is performed first although the ultimate result from the (com-pensable) right shoulder repair will be unaffected by the order of the surgeries.

Under the hindrance-to-recovery doctrine, it is the purpose of the treatment that determines compensability. Glades Cnty. Sugar Growers v. Gonzales, 388 So.2d 333, 336 (Fla. 1st DCA 1980) citing Barris v. Toppers of Florida, Inc., 382 So.2d 441, 442 (Fla. 1st DCA 1980). The E/C is not responsible for medical treatment required independently by the non-compensable left shoulder injury if the removal of a hindrance is only incidental to the recovery of the compensable right shoulder injury. Id. In the final compensation order, the JCC concluded that Claimant’s left shoulder repair is a medically necessary procedure that must be provided by the E/C as “a hindrance to the compensable surgery required on her right shoulder.” The JCC’s conclusion, however, is based on Dr. White’s opinion that surgical repair of the left shoulder is medically necessary to avoid further injury to the (non-compensable) left shoulder during the later anticipated surgery and recovery period for the right shoulder injury. The relevant inquiry is not whether the left shoulder surgery is medically necessary, but rather why it is medically necessary— i.e., what is the purpose of the left shoulder surgery? Unless the purpose is to remove a hindrance to treating the com-pensable right shoulder injury, the doctrine does not apply. In this case, the JCC made no specific findings to explain how the left shoulder condition hinders Claimant’s recovery from her compensable right shoulder injury. It follows that the findings do not establish that the purpose of the left shoulder surgery is to remove a hindrance to treating the compensable right shoulder. In fact, based upon the findings, the JCC appears to have applied the inverse of the doctrine.

Because the findings do not demonstrate that the purpose of proposed treatment of the left shoulder is to treat Claimant’s compensable right shoulder injury, the JCC erred when she found the left shoulder surgery to be compensable. Accordingly, we REVERSE the final compensation order awarding Claimant surgical repair of the left shoulder.

WETHERELL and MARSTILLER, JJ., concur; SWANSON, J., dissenting.

SWANSON, J.,

dissenting.

I respectfully dissent. Claimant, now age fifty-two, was working as a school custodian at the time of her February, 2012, workplace injury to the right shoulder. She underwent surgery to repair the right rotator cuff, but continues to have right shoulder pain. In October of 2012, while working in a limited capacity, she experienced symptoms of pain and discomfort in the left shoulder. Tests revealed a left rotator cuff tear; however, the left shoulder condition was initially determined to be non-compensable. Claimant is unable to work and has no health insurance through employment.

According to Chapter 440 of Florida Statutes, it is the intent of the Legislature that Workers’ Compensation Law “be interpreted so as to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. (2012). Here, in the medical opinion of Dr. White — the only physician to testify in this case — performing surgery on the right shoulder first may result in further injury to the left shoulder. Dr. White refused to subject Claimant to this risk and recommended that surgery first be performed on the left shoulder. Dr. White further confirmed that surgical repair of the left shoulder would aid Claimant’s later recovery from the anticipated surgery to the compensable right shoulder in that she will have a better shoulder on the left side during the recovery period. Of critical import, Dr. White opined it was medically necessary for Claimant to undergo the left shoulder surgery first; this was unrebut-ted. Based on the stated intent of the Legislature, the record, the law as further discussed, common sense and fundamental fairness, we should affirm the JCC in this case.

In support of that proposition, I note in the final order the JCC found Claimant’s left shoulder repair to be a compensable condition as a hindrance to the compensa-ble surgery on the right shoulder “[biased on the totality of the evidence.” This finding is supported by Dr. White’s opinion that having a good left shoulder will aid in Claimant’s recovery following the right shoulder surgery, and is a part of the “totality of the evidence.” It constitutes competent substantial evidence (CSE) supporting the JCC’s determination and is consistent with section 440.13(2), Florida Statutes (2012). That provision requires an employer/carrier to “furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, which is in accordance with established practice parameters and protocols of treatment.” § 440.015, Fla. Stat. (2012).

Here the E/C challenges the JCC’s findings of fact. Accordingly, the correct standard of review is whether CSE supports the JCC ruling. Jefferson v. Wayne Dalton Corp./Hartford, 793 So.2d 1081, 1083 (Fla. 1st DCA 2001). To the extent an order depends upon an evidentiary foundation, the “standard of review in worker’s compensation cases is whether competent substantial evidence supports the decision below, not whether it is possible to recite contradictory record evidence which supported the arguments rejected below.” Wintz v. Goodwill, 898 So.2d 1089, 1093 (Fla. 1st DCA 2005) (quoting Mercy Hos pital v. Holmes, 679 So.2d 860, 860 (Fla. 1st DCA 1996) (emphasis in original). In this case, I am of the view the majority has, by their opinion, diminished this standard in a manner inconsistent with controlling authority.

I am of the strong opinion that the record evidence requires this court to affirm the order on appeal.