author: SWANSON, J.

text:
    PRESCRIPTION PARTNERS, LLC, Appellant, v. STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, Appellee.
    No. 1D12-3305.
    District Court of Appeal of Florida, First District.
    March 28, 2013.

      Thomas F. Panza, of Panza, Maurer & Maynard, P.A., Ft. Lauderdale, for Appellant.
    P.K. Jameson, General Counsel, and Mary E. Ingley, Assistant General Counsel, Florida Department of Financial Services, Division of Legal Services, Tallahassee, for Appellee.
   SWANSON, J.

Prescription Partners, LLC (“Partners”), appeals the Final Order of the Department of Financial Services (“the Department”) concluding Partners lacked standing to file petitions for administrative hearings challenging the dismissals of thirty-five Petitions for Resolution of Reimbursement Dispute by the Department’s Office of Medical Services (“OMS”). We reverse.

This cause is rooted in chapter 440, Florida Statutes. According to the plan outlined in section 440.13, Florida Statutes, workers’ compensation physicians licensed to dispense prescription medication to injured claimants may seek reimbursement from the claimants’ employers or the employers’ compensation insurance carriers based on the pharmacy fee schedule set forth in section 440.13(12)(c), Florida Statutes. Partners is a Florida business that contracts with these physicians to purchase and process their claims for reimbursement of pharmacy-related services. The contracts typically provide for the physicians to assign all of their right, title, and interest in and to the claims, including the right to bill and receive payment from insurance carriers or self-insured employers. As consideration for the physician’s unqualified assignment of the claim, Partners pays the physician a percentage of the claim’s value, regardless of the amount Partners is ultimately able to collect from the payor.

With limited exception, when reimbursing a medical provider for services rendered to an injured worker, if full payment is not made, the payor must issue an Explanation of Bill Review (“EOBR”) explaining the reason why it denied, disallowed or adjusted the payment. See Fla. Admin. Code R. 69L-7.602(5)(j)l. & (q). If the provider chooses to challenge the reimbursement amount, or the refusal to reimburse, section 440.13(7), Florida Statutes, along with its corresponding provisions in chapter 69L-31, Florida Administrative Code, provides the mechanics for resolving the dispute. Specifically, section 440.18(7)(a) states in relevant part, that “[a]ny health care provider, carrier, or employer who elects to contest the disallowance or adjustment of payment by a carrier ... must, within 30 days after receipt of notice of disallowance or adjustment of payment, petition the department to resolve the dispute.” § 440.13(7)(a), Fla. Stat. The present record demonstrates that Partners has routinely pursued dispute resolution by filing with the Department a petition denoted “DFS Form 3160-0023,” incorporated by reference in Florida Administrative Code Rule 69L-31.003. The form expressly allows the petition for dispute resolution to be filed by parties other than the medical provider who are “acting on behalf’ of the provider.

Thus, according to practice, in late 2011 and early 2012, Partners filed numerous petitions with the OMS challenging underpayments made by carriers for medications dispensed to workers’ compensation claimants. The OMS adjudicated many of the petitions in Partners’ favor, but dismissed others ruling they had not been filed within thirty days “of notice of disallowance or adjustment of payment,” as required by section 440.13(7)(a). As the party filing the petition, Partners was served with a copy of each dispute resolution dismissal and was notified of “its right to an administrative hearing concerning this proposed agency action by the department under sections 120.569 and 120.57, Florida Statutes.” Partners subsequently filed, pursuant to section 120.57(2), Florida Statutes, ninety-six petitions for administrative hearings challenging OMS’s dismissal of its petitions for dispute resolution. On February 8, 2012, the Department entered an order dismissing all of the petitions without prejudice on the grounds that (1) the petitions lacked the required pleading elements found in section 120.569, and (2) Partners lacked standing to pursue an administrative challenge to the Department’s dismissals of its petitions. Partners was given fifteen days to file amended petitions and to show cause why it had standing to pursue the administrative challenges.

Partners timely amended and refiled thirty-five of the petitions, but this time sought full evidentiary hearings pursuant to section 120.57(1), Florida Statutes. Attached to the petitions were redacted copies of Partners’ contracts with its health care clients, documenting each physician’s unqualified assignment to Partners of all of the physician’s “right, title and interest in and to the Claim including, without limitation, rights to bill and receive payment for the Claim from insurance carriers or self-insured parties.” Partners also filed a motion to strike the Department’s order to show cause and, in the alternative, a response arguing Partners’ standing to file the petitions. The Department issued an order consolidating all of the petitions and referring them to a hearing officer for informal resolution under section 120.57(2). The Department claimed there were no disputed issues of material fact warranting a hearing under section 120.57(1), instead ruling the issue of whether OMS had properly interpreted the time limitations in section 440.18(7)(a) was purely a question of law. Partners objected to the assignment of the cases to an informal hearing officer, requesting they be transferred to the Division of Administrative Hearings (“DOAH”) for formal proceedings.

On May 4, 2012, the informal hearing officer entered a Report and Recommendation to the Department that it dismiss Partners’ thirty-five amended petitions due to Partners’ lack of standing. The hearing officer also rejected Partners’ request for a formal administrative hearing. On review, the Department entered its Final Order fully adopting the hearing officer’s findings of fact and conclusions of law. The Department concluded that section 440.13(7)(a) “expressly authorizes only health care providers, carriers, or employers to contest the disallowances or payment adjustments here in question,” and Partners “fits into none of those categories.” (Emphasis in original.) Further, the Department ruled that Partners

does not fit within the definition of a ‘party' under Section 120.52(13), Fla. Stat., because its only interest in this proceeding is economic, to wit: the profit it expects to make by virtue of purported assignments of collection rights from individual doctors allowing it to retain all the monies it collects on their respective claims.... Thus, it is clear that the economic interest at stake here is that of the doctors’ selling, and Prescription Partners’ buying, of debt. There is nothing in Section 440.13(7), Fla. Stat. that indicates the legislature’s desire to extend its statutory contestation opportunity to anyone other than providers, carriers or employers actually involved in workers’ compensation medical services remuneration disputes. There is nothing in the applicable statutes that indicates a legislative desire to protect sellers and buyers of debt. Thus, Prescription Partners LLC fails the Agrico Chemical Company v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981) test to be considered a Chapter 120, Fla. Stat., “party” in this matter because its economic interests are not within the type or nature of interests sought to be protected by Section 440.13(7), Fla. Stat., proceedings.

In determining the soundness of the Department’s foregoing ruling on the standing issue, several well-established principles inform our analysis. First, the dismissal of a petition for lack of standing is a question of law to be reviewed de novo. Mid-Chattahoochee River Users v. Fla. Dep’t of Envtl. Prot., 948 So.2d 794, 796 (Fla. 1st DCA 2006). Second, an administrative agency’s action may be set aside if “[t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action[.]” § l'20.68(7)(d), Fla. Stat. See also Young v. Dep’t of Educ., Div. of Vocational Rehab., 943 So.2d 901, 902 (Fla. 1st DCA 2006) (“A reviewing court may set aside agency action when it finds that the action is dependent on any finding of fact that is not supported by competent substantial evidence in the record, a material error in procedure, an erroneous interpretation of law, or an abuse of discretion.”). Third, to achieve standing to challenge agency action, an individual or entity must be a “party” as that term is defined, in relevant part, in section 120.52(18), Florida Statutes, to mean:

(a) Specifically named persons whose substantial interests are being determined in the proceeding.
(b) Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

Finally, the seminal decision in Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478 (Fla. 2d DCA 1981), cited by the Department as providing the underpinning of its holding, offers a two-prong test to determine when a third party challenger to agency action meets the “substantial interest” element of sub-paragraph (b) of section 120.52(13). The Agrico test requires a would-be party to demonstrate “1) that he will suffer injury in fact which is of sufficient immediacy to entitle him to a section 120.57 hearing, and 2) that his substantial injury is of a type or nature which the proceeding is designed to protect.” Id. at 482.

Applying the foregoing principles to the Department’s Final Order in the present case, we find two fundamental flaws in its analysis. First, in holding that Partners is not a “health care provider[ ], carrier[ ], or employer[ ]” as contemplated in section 440.13(7)(a), the Department misconstrues Florida law in regard to assignments of interest. Partners correctly argues that Florida law is clear: An “ ‘assignment transfers to the assignee all the interests and rights of the assignor in and to the thing assigned.’ ” Dep’t of Revenue v. Bank of Am., N.A., 752 So.2d 637, 642 (Fla. 1st DCA 2000) (quoting State v. Family Bank of Hallandale, 667 So.2d 257, 259 (Fla. 1st DCA 1995); and additionally citing Rose v. Teitler, 736 So.2d 122 (Fla. 4th DCA 1999)) (emphasis added); see also LLP Mortg., Ltd. v. Cravero, 851 So.2d 897, 898 (Fla. 4th DCA 2003) (observing “the rather universally followed proposition that an assignee stands in the shoes of the assignor and has all the rights enjoyed by the assignor”) (citing Dubbin v. Capital Nat’l Bank of Miami, 264 So.2d 1 (Fla.1972)). Moreover, “ ‘[u]nder Florida law, parties can assign causes of action derived from a contract or a statute.’ ” Bank of Am., N.A., 752 So.2d at 642 (quoting Forgione v. Dennis Pirtle Agency, Inc., 701 So.2d 557, 559 (Fla.1997)). In fact, “Florida law recognizes the general right to assign common law and statutory rights, unless there is an express prohibition in a statute, or a showing that an assignment would clearly offend an identifiable public policy.” VOSR Indus. v. Martin Props., Inc., 919 So.2d 554, 556 (Fla. 4th DCA 2005) (citing Forgione, 701 So.2d at 559); accord Bank of Am., N.A., 752 So.2d at 640. Furthermore, where a statute is silent on the issue of assignment, it is settled that “the courts ‘fill in the inevitable statutory gaps’ by relying on the common law.” Dove v. McCormick, 698 So.2d 585, 589 (Fla. 5th DCA 1997) (quoting Fed. Deposit Ins. Corp. v. Bledsoe, 989 F.2d 805, 809-810 (5th Cir.1993)). As stated in Dove, “[o]n the subject of assignments, the common law ‘speaks in a loud and consistent voice: An assignee stands in the shoes of his assignor.’ Id. (quoting Bledsoe, 989 F.2d at 809-810) (emphasis in original).

Here, a physician’s right to pursue a dispute resolution cause of action with the Department is derived from section 440.13(7)(a). That section does not expressly prohibit the assignment of a cause of action for dispute resolution but is silent in all respects on the subject. Indeed, we are not called upon to “fill in the gap,” as the Department did that for us in Florida Administrative Code Rule 69L-7.602(4)(a)10., which explicitly provides that nothing in the rules governing the responsibility of health care providers “shall prevent a physician from selling, assigning or otherwise factoring a claim for the provision of pharmacy related services to a third party.” (Emphasis added.) By its own rule, the Department has implicitly acknowledged that the public policy contained in chapter 440 concerning health care providers’ rights and responsibilities clearly is not offended by an assignment of a cause of action for dispute resolution. Once a physician assigns Partners a claim for reimbursement, Partners stands in the shoes of the physician and has all of the same rights and interests accorded the physician, including, as we will discuss below, pursuing the resolution of a claim up to the administrative hearing level, if necessary.

This brings us to the second flaw in the Department’s analysis, as reflected in its reliance on the Agrico test. We reiterate: By virtue of the assignments, Partners stands in the shoes of the physician in seeking to pursue dispute resolutions in order to obtain reimbursement from the carriers or the employers. Consequently, Partners’ interests extend well beyond the mere “buying and selling of debt”; it is entitled to “all of the interests and rights of the assignor in and to the thing assigned.” Bank of Am., N.A., 752 So.2d at 642. In this respect, Partners is a “party” as defined in subsection (a) of section 120.52(18), as being a “specifically named person whose substantial interests are being determined in the proceeding.” Partners is the party with the “personal stake” in the outcome of the proceedings. Gregory v. Indian River Cnty., 610 So.2d 547, 554 (Fla. 1st DCA 1992) (holding that the purpose of requiring a party to have standing to participate in an administrative or judicial proceeding is “to ensure that a party has a ‘sufficient interest in the outcome of the litigation which warrants the court’s entertaining it’ and to assure that a party has a personal stake in the outcome so he will adequately represent the interest he asserts,” quoting Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971)). As pointed out by Partners, it would be “paradoxical” for the Department to expressly allow Partners to pursue dispute resolution by virtue of its own rule, yet claim that Partners lacks standing to challenge the Department’s dismissal of its petitions to that end.

As for the two-pronged Agrico test, Partners contends that Agrico is relevant only to third party challenges to agency action. See W. Frank Wells Nursing Home v. State, Agency for Health Care Admin., 27 So.3d 73, 74 (Fla. 1st DCA 2009) (holding “the Agrico test applies only to third parties”); Maverick Media Grp., Inc. v. State, Dep’t of Transp., 791 So.2d 491 (Fla. 1st DCA 2001) (observing “[t]he standing requirements under Agrico were for the third-party business competitors of Agrico, who needed to demonstrate a ‘substantial interest in the proceeding’ pursuant to section 120.52(10) (b)”); Gregory, 610 So.2d at 554 (stating that the “obvious intent of Agrico was to preclude parties from intervening in a proceeding where those parties’ substantial interests are totally unrelated to the issues which are to be resolved in the administrative proceedings ”) (emphasis added). Here, Partners is not a third party challenger; it is the sole party seeking to enforce its direct rights afforded it by the contracts of assignment and affected by the underlying agency action. But assuming Agrico applies at all, Partners has clearly satisfied both prongs of the test. It has demonstrated (1) that it will “suffer injury in fact which is of sufficient immediacy to entitle [it] to a section 120.57 hearing, and (2) that its “substantial injury is of a type or nature which the proceeding is designed to protect.” 406 So.2d at 478. In other words, Partners seeks to protect by its administrative action the identical interests protected by the dispute resolution process set forth in the applicable statutes and rules. Focusing primarily on the second prong of the Agrico test, as did the Department, we are convinced that section 440.13(7)(a) unquestionably intends to protect the economic interests of a health care provider who has not been made whole by an insurance carrier for the services rendered to an injured employee under chapter 440. Thus, it is incorrect for the Department to claim that Partners lacks standing because its “only interest in the proceeding is economic.” To the contrary, section 440.13(7)(a) does not purport to protect any interests other than economic interests. Therefore, without means to gain entrance into the administrative process in order to challenge the Department’s dismissal of its petitions, Partners arguably stands to suffer immediate and significant monetary losses. Further, as we have already established, this “substantial injury is of a type or nature which the proceeding is designed to protect.” Id. In dismissing Partners’ administrative petitions, the Department wholly failed to explicate why Partners should not be treated as a named party by virtue of the assignments.

For all of the foregoing reasons, the Department’s decision to deny Partners standing to challenge administratively the dismissal of its petitions was clearly erroneous. On remand, Partners is entitled to a formal hearing because its petitions have alleged disputed facts. Accordingly, we reverse the Final Order and remand the cause to the Department with directions that the petitions be referred to DOAH for further proceedings consistent with section 120.57(1), Florida Statutes.

REVERSED and REMANDED for further proceedings consistent with this opinion.

BENTON, C.J., and WOLF, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Leroy KNIGHT, Appellant, v. WALGREENS and Sedgwick CMS, Appellees.
    No. 1D12-3341.
    District Court of Appeal of Florida, First District.
    March 28, 2013.
    See 79 So.3d 24.

      Roland P. Tan, Jr., Orlando, for Appellant.
    Kim L. McCall and Meagan L. Logan of Marks Gray, P.A., Jacksonville, for Appel-lees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC)(1) violated Claimant’s due process rights by sua sponte considering the defenses of medical necessity and major contributing cause (MCC), which were not raised by the Employer/Carrier (E/C) in the parties’ pretrial stipulation, and (2) the JCC erroneously admitted the medical opinions of Dr. Shane VerVoort, which were based upon inadmissible hearsay. Because the record supports the JCC’s ruling on the admissibility of medical opinions of Dr. VerVoort, we affirm this second issue on appeal, without further comment. We reverse and remand on the basis that the JCC erred by denying Claimant’s entitlement to the requested benefits based on a defense untimely asserted.

BACKGROUND

Claimant sustained a bulging disc in his lower back in a work-related accident while employed with his former employer in 2002. Claimant settled this claim in 2003 and did not seek any further treatment for his lower back until Claimant aggravated his back injury on April 19, 2008, while employed at Walgreens. Claimant’s authorized treating physician for the 2008 industrial accident, Dr. Jones, diagnosed a temporary exacerbation. On July 1, 2008, Dr. Jones found Claimant had recovered from this exacerbation, placed him at maximum medical improvement (MMI), and released him to full duty.

Subsequently, Claimant suffered an additional back injury on May 8, 2010, (the instant date of accident), and presented to Dr. David Lemay, a physical medicine and rehabilitation specialist. Dr. Lemay diagnosed Claimant with an aggravation of his pre-existing back condition, but opined Claimant’s 2010 accident was not the MCC of his condition or need for treatment. After the E/C contested the compensability of Claimant’s May 8, 2010, back injury on MCC grounds, along with Claimant’s entitlement to a physical therapy evaluation as prescribed by Dr. Lemay, the com-pensability of the back injury was established in a final compensation order issued on April 11, 2011, wherein the JCC found MCC did not apply to the facts because there was no evidence of any non-industrial accident involving Claimant’s back. On Claimant’s request for authorization of physical therapy, the JCC ordered the E/C to provide an authorized medical provider to determine what, if any, additional care and treatment of Claimant’s back injury is medically appropriate. In Knight v. Walgreen Pharmacy/Sedgmck CMS, 79 So.3d 24 (Fla. 1st DCA 2012), this court per curiam affirmed the JCC’s order.

In compliance with the JCC’s 2011 order, the E/C authorized Dr. VerVoort and an initial examination was undertaken on June 15, 2011. Dr. VerVoort prescribed several medications, including a pain patch and pills for breakthrough pain. On June 27, 2011, Dr. VerVoort referred Claimant for a neurosurgical evaluation. At an October 11, 2011, visit to Dr. VerVoort, Dr. VerVoort became concerned that Claimant was not using his medications as prescribed because Claimant was not wearing his narcotic medication patch. Dr. VerV-oort obtained a urine drug sample, the results of which indicated Claimant was not using his prescribed medications as directed, despite his claims to the contrary. Due to the absence of any medication in the drug screen, which indicated Claimant had not used the medication at all, Dr. VerVoort refused to provide any further medications for his pain.

On November 8, 2011, Claimant filed a petition for benefits (PFB) seeking authorization for a neurosurgical evaluation, as recommended by Dr. VerVoort. In its response to the PFB, submitted on November 16, 2011, the E/C indicated that the claim for a neurosurgeon had never been denied and that the neurosurgeon the E/C contacted, Dr. Schmitz, cancelled the appointment because he wished to first review Claimant’s records. Ultimately, Dr. Schmitz declined to see Claimant. On November 16, 2011, the E/C issued a Notice of Denial to the entire claim based on misrepresentations made by Claimant to Dr. VerVoort regarding his use of prescribed pain medications.

On February 8, 2012, Claimant filed an additional PFB wherein Claimant sought, among other benefits, reinstatement of his terminated benefits. The E/C asserted the entire claim had been denied based on misrepresentations made by Claimant to Dr. VerVoort. On February 9, 2012, the JCC entered an order to consolidate Claimant’s pending claims.

In the parties’ pretrial stipulation, filed on May 3, 2012, the E/C indicated the November 8, 2011, PFB for a neurosurgical evaluation “has never been denied.” The E/C further indicated that by the time Dr. Schmitz declined to see Claimant, the entire case had been denied based on misrepresentation and fraud.

At hearing, Claimant, pro se at trial, objected to the introduction of his urine screen lab report obtained by Dr. VerV-oort, which was included in Dr. VerVoort’s medical records, on hearsay grounds. The JCC indicated that, although the E/C failed to prove the lab report was admissible, the doctor could render opinions based on the report in question if he testifies that it is something upon which he generally relies in rendering his opinions and determining how to treat patients. Consequently, the JCC ruled the lab report was inadmissible, but Dr. VerVoort could still rely on it and testify about how it affects his opinions.

Thereafter, Claimant testified that he refused to take the medications prescribed by Dr. VerVoort because they made him ill. Dr. VerVoort testified that the fact that Claimant was not taking medication for his back pain appeared to indicate Claimant’s complaints of severe pain were unsupported. Dr. VerVoort testified that it was reasonable to conclude Claimant had sustained a temporary exacerbation and had returned to baseline.

In closing argument, counsel for the E/C maintained that the only reason Claimant’s request for a neurological evaluation was denied was the suspicion of fraud by Claimant. Counsel for the E/C argued that if the JCC did not find evidence of fraud, the JCC should consider Dr. VerV-oort’s opinion that Claimant sustained a temporary exacerbation and has since returned to baseline, relieving the E/C of the duty to furnish any further treatment. In addition, the E/C argued the neurosurgical evaluation was not medically necessary.

In the order on review, the JCC denied Claimant’s request for a neurosurgical evaluation and reinstatement of his medical benefits. According to the JCC, Claimant failed to meet his burden to prove that same were medically necessary and that the MCC of each was the com-pensable injury. The JCC accepted Dr. VerVoort’s opinion that there was no objective medical evidence of Claimant’s need for continued treatment as of October 11, 2011, and, consequently, found the E/C’s responsibility for care and treatment of Claimant’s back injury was at an end. As a result, the JCC determined the E/C’s fraud defense was moot. However, the JCC found, in the alternative, the E/C’s fraud defense would be denied due to the E/C’s failure to establish that Claimant’s misrepresentation to Dr. VerVoort was made in pursuit of workers’ compensation benefits.

In his motion for rehearing, Claimant argued the JCC had overlooked the fact that the E/C had stipulated to the authorization of the neurosurgeon referral, as indicated in its response to the PFB and the pretrial stipulation. Claimant further argued the E/C’s attempt to rely on the “no medical necessity” opinion obtained subsequent to their stipulation on the evaluation was improper; as was the JCC’s acceptance of said defense in light of the fact that same was not identified in the pretrial stipulation. In its objection to Claimant’s motion for rehearing, the E/C maintained that it never denied Claimant’s request for the neurosurgical evaluation.

In the order denying Claimant’s motion for rehearing, the JCC found the E/C had proven Claimant’s compensable injury was not the MCC of any further treatment based on Dr. VerVoort’s medical opinions. Claimant timely appealed.

ANALYSIS

An injured employee’s right to receive workers’ compensation benefits is a property right protected by procedural due process safeguards including notice and an opportunity to be heard. Rucker v. City of Ocala, 684 So.2d 836, 840-41 (Fla. 1st DCA 1996). Parties are required to set forth their claims, defenses, and issues at the pre-trial conference. Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1006 (Fla. 1st DCA 2004). Because due process rights are implicated, a party has a right to rely upon the issues as framed in the pretrial statement. See Isaac, 871 So.2d at 1004 (reversing denial of compensation based on affirmative defense not raised pretrial).

Here, it is undisputed that, in response to Claimant’s PFB for authorization of a neurosurgical evaluation, the E/C not only failed to raise the medical necessity defense in the pretrial statement, but indicated that same was denied on the sole basis of misrepresentation, obviating any defense or requirement of further proof. Thus, it was contrary to the procedural due process established for workers’ compensation cases for the JCC to rule on Claimant’s entitlement to the neurosurgical evaluation based on a defense that was untimely asserted, as it was first raised by the E/C in closing arguments at hearing. See Ballard v. Edd Helms Group, 79 So.3d 88, 89 (Fla. 1st DCA 2011), reh’g denied (Feb. 9, 2012) (holding JCC erred in finding E/C overpaid benefits based on defense untimely asserted—first raised by the E/C in written closing argument submitted after final hearing).

Here, not only did the E/C fail to put Claimant on notice that it was contesting further medical treatment on the grounds of causation or medical necessity, it further represented that it was not denying the claim for authorization of a neurosurgeon, except to the extent that this claim was precluded by Claimant’s alleged misrepresentations. Given that the purpose of the pretrial stipulation is to put the parties on notice of what is in dispute, see Marin v. Aaron’s Rent To Own, 53 So.3d 1048 (Fla. 1st DCA 2010) (holding primary purpose of pretrial stipulation in workers’ compensation is to provide parties an opportunity to state and simplify issues to be determined by the JCC), and considering that Claimant could have obtained other medical evidence had he been put on notice that there was a dispute regarding medical necessity or on an issue of causation, the JCC’s invocation of an issue not set forth in the pretrial was both improper and harmful.

Further, the JCC erred in ruling Claimant had the burden to present evidence on MCC, especially where no such issue was articulated on the pretrial stipulation. Moreover, as the JCC correctly found in the April 2011 order, MCC does not apply to the facts here because there was no evidence of any non-industrial accident involving Claimant’s back. Accordingly, the order on review is reversed and remanded for entry of an order consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED for entry of an order consistent with this opinion.

LEWIS, THOMAS, and MAKAR, JJ, concur.


text:
    D.E.M., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3491.
    District Court of Appeal of Florida, First District.
    March 28, 2013.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charlyne M. “Khai” Patterson, Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

The trial court adjudicated D.E.M. delinquent of burglary of a dwelling and committed him to a high-risk residential program. In this appeal, D.E.M. asserts error only in the court’s imposing an amount of restitution based on the victim’s mere speculation regarding the value of a coin collection taken during the offense. We reverse the restitution order and remand for a new hearing.

Facts

Rodney McLean testified at the July 2012 restitution hearing that he was the victim of a residential burglary on December 22, 2011. The items stolen included a laptop computer, a cell phone, jewelry, a watch, and a fire safe. Stored inside the fire safe was a coin and bill collection, comprising American and foreign money that the victim’s father had given him.

McLean compiled a list of the property taken and the value of some of it. He had serial numbers and receipts for some of the older items. McLean researched the fair market value of the laptop computer, which was less than one year old and in good condition, and found that he could replace it for $499.00 at Best Buy. He put a value of $130.00 on the Blackberry Bold 9600 cell phone, which was the cost to repair it. A receipt indicated that McLean had purchased the fire safe at Target for $29.99. He went on-line to get information about the jewelry and depreciation values. A 2009 written appraisal of a portion of the coin collection, which McLean kept with the coin collection inside the fire safe, was lost when the fire safe was taken.

McLean testified that he had been unfamiliar with coin collecting and learned of this collection only when his father left it to him in his will. The collection had sentimental value because it was originally a gift to the father from the victim’s grandfather. The collection contained approximately one hundred coins. It is unclear what portion of the collection was American coins and bills and what was foreign currency. The North Carolina appraiser, who performed the last appraisal of part of the coin collection, gave McLean a figure of $4,200.00 in September 2009, approximately two years prior to the burglary. When McLean was asked whether he believed the coins had appreciated in value since then, he testified “[t]hey would have had to.” When McLean testified that the appraiser had told him about the collection’s historic value, and that McLean was asking the court for $4,000 based on that appraisal, defense counsel objected to the appraisal as hearsay. The appraiser was not available to testify as to the contents of the missing written appraisal. The court opined that the proper question for the witness was whether, “based on that appraisal,” McLean had an opinion concerning the value of the coins.

To the State’s question regarding what he believed the coin collection was worth, McLean answered: “I believe it’s worth much more than $4,000. I would guesstimate $20,000 to $22,000.” Noting that McLean was the owner of the stolen coin collection, the court asked whether defense counsel would accept the $4,000 figure. Not answering the question, defense counsel asked for permission to voir dire the victim, which the court granted.

McLean admitted having no expertise in valuing the coins. He testified about spending six or seven hours in 2009 with the appraiser/dealer over a two-day period at the appraiser’s antiques shop. They consulted history books and reviewed McLean’s three or four certificates. The appraiser contacted the U.S. Mint and the Japanese Embassy to determine the value of certain items. He went over each coin individually, with McLean and other family members, and told them that coins with scratches would have less value. Some of the coins had no value. McLean kept the valuable coins in the fire safe. The appraisal of “$4,000 and something” related only to the American coins.

At the hearing, McLean admitted that he could not say what the remaining items in the coin collection were worth. The appraiser could not give him an exact appraisal of some of the foreign coins. McLean testified that after he and the appraiser went through all of the American coins, the appraiser gave him “a guesstimated value” of $20,000 or $80,000 for the entire collection, from which McLean settled on the $20,000 figure. The appraiser’s computer printout of the history of the coins, and the appraisal itself, were stored and lost in the stolen fire safe.

The victim testified that, in the period since the burglary, he had tried to obtain this same information from the appraiser. The appraiser refused to send anything through the mail, however, because he could not verify McLean’s identity and wanted to protect himself legally. McLean believed that the only way he could get this missing information was to go in person to the North Carolina appraiser.

The prosecutor informed the court that McLean was seeking a total amount of $8,689.56, which included the value of the jewelry. The State asked the court to value the laptop computer at $499.00 at depreciated market value.

Regarding the coin collection, defense counsel objected to the entire amount as based on hearsay. Counsel argued that the victim could not testify concerning the absent appraiser’s independent opinion of the coin collection’s value. The court stated that the owner of property can opine as to its value, and the only opinion given by the victim was $20,000. Defense counsel challenged the $20,000 figure as not a credible estimate. The prosecutor reiterated that the victim was requesting only $4,200 and some change for the coins. The court sustained the objection as to the appraiser’s $4,000 figure, but overruled it as to the victim’s $20,000 figure.

The trial court issued a written order with a total restitution amount of $24,689.06 owed to McLean. The order did not specify how much of this amount pertained to the lost items other than the coin collection. In this appeal, D.E.M. argues that it was error to base the amount of restitution solely on the victim’s unsupported “guesstimate” of the value of the coin collection.

Analysis

Florida law provides that, “[i]n addition to any punishment, the court shall order the defendant to make restitution to the victim for ... [d]amage or loss caused directly or indirectly by the defendant’s offense” and “[djamage or loss related to the defendant’s criminal episode,” unless the court “finds clear and compelling reasons not to order such restitution.” § 775.089(l)(a)l.-2., Fla. Stat. (2011). In determining whether to order restitution and the amount itself, the court “shall consider the amount of the loss sustained by any victim as a result of the offense.” § 775.089(6)(a). The State has the burden to demonstrate, by a preponderance of the evidence, the amount of the loss sustained by a victim as a result of the offense. § 775.089(7). We review the restitution order for an abuse of discretion. Bennett v. State, 944 So.2d 524, 525 (Fla. 4th DCA 2006).

It is within the trial court’s discretion “to take into account any appropriate factor in arriving at a fair amount which will adequately compensate a victim for his or her loss and further the purposes of restitution.” Glaubius v. State, 688 So.2d 918, 915 (Fla.1997); see State v. Haw thorne, 573 So.2d 330, 332-33 (Fla.1991). To meet the requisite proof, however, the evidence must be “more than mere speculation; it must be based on competent evidence.” Glaubius, 688 So.2d at 916.

Generally, a victim/owner is qualified to testify concerning the fair market value of his property. Hawthorne, 573 So.2d at 333 n. 6; Gonzalez v. State, 40 So.3d 86, 88 (Fla. 4th DCA 2010). This general rule is subject to evidentiary requirements, however. “[A] victim’s mere opinion testimony on the value of stolen property is insufficient.” Gonzalez, 40 So.3d at 89; see Rodriguez v. State, 956 So.2d 1226, 1231 (Fla. 4th DCA 2007). That is, the victim must have “a sufficient predicate” on which to base an opinion regarding the value of the items taken. Gonzalez, 40 So.3d at 89; see Peters v. State, 555 So.2d 450, 451 (Fla. 4th DCA 1990). Although the fair market value at the time of the offense .is one common measure of value for restitution purposes, it is not the only standard for valuation. See Hawthorne, 573 So.2d at 333 & n. 4 (acknowledging that sometimes the property’s market value alone does “not adequately reflect the victim’s loss,” citing as one example a family heirloom); Gonzalez, 40 So.3d at 88; Hagan v. State, 746 So.2d 1241, 1242 (Fla. 1st DCA 1999).

In the instant case, the victim testified that an appraiser gave him a “guesstimated value” of $20,000 or $30,000 for the entire coin collection, from which the victim came up with the $20,000 figure. The record contains no supporting documentation or other predicate for this speculative opinion of the value of the lost coin collection. Gonzalez, 40 So.3d at 89. A mere estimate of value, without any evi-dentiary basis, is insufficient to prove an amount for restitution purposes. See Soriano v. State, 968 So.2d 112, 115 (Fla. 4th DCA 2007); Bennett v. State, 944 So.2d at 526 (“Guesstimates and speculative testimony are inappropriate evidence on which to base an award of restitution.”); Tullís v. State, 692 So.2d 229, 229 (Fla. 1st DCA 1997) (concluding that the victim’s “guesstimate” of the cost of repairs to a wall and office door, without any stated basis for the estimate, was legally insufficient to support the restitution amount); Peters v. State, 555 So.2d at 451.

Given the lack of legally sufficient proof to support the estimated value of the coin collection, we reverse the $24,689.06 restitution award and remand with instructions to conduct a new evidentiary hearing to determine the appropriate amount of restitution. Bennett, 944 So.2d at 526; Tullís, 692 So.2d at 229.

REVERSED and REMANDED with instructions.

LEWIS, CLARK, and RAY, JJ„ concur.


author: WETHERELL, J.

text:
    CVS CAREMARK CORPORATION and Gallagher Bassett Services, Inc., Petitioners, v. Kristen LATOUR, Respondent.
    No. 1D12-4972.
    District Court of Appeal of Florida, First District.
    March 28, 2013.

      Jennifer L. Armstrong and James H. Wyman of Hinshaw & Culbertson, LLP, Fort Lauderdale, for Petitioners.
    Bill McCabe, Longwood, for Respondent.
   WETHERELL, J.

In this workers’ compensation case, the Employer and Servicing Agent (E/SA) petition for a writ of certiorari to review an order denying their amended motion for protective order. The E/SA contend that the order departs from the essential requirements of law by allowing Claimant to take the adjuster’s deposition in the county where this action is pending instead of the county where the Servicing Agent has its principal place of business. We agree. Accordingly, we grant the petition and quash the challenged order.

BACKGROUND

On August 15, 2011, Claimant was injured while working for the Employer in Palm Coast, Flagler County, Florida. On July 20, 2012, Claimant filed a petition for benefits (PFB) seeking temporary indemnity benefits, proper calculation of her average weekly wage, and impairment benefits. The PFB is pending in the Daytona Beach District of the Office of Judges of Compensation Claims, which is responsible for claims arising in Flagler County. Cf. § 440.25(4)(d), Fla. Stat. (2011) (venue for a claim under the Workers’ Compensation Law is in the county where the injury occurred, unless otherwise agreed).

On October 3, 2012, Claimant served a notice of taking deposition duces tecum on the Servicing Agent’s corporate representative, the adjuster. The notice set the deposition in Palm Coast.

On October 11, 2012, the E/SA filed an amended motion for protective order seeking to quash the notice of taking deposition. The E/SA argued that the adjuster could not be required to travel sixty miles to attend a deposition outside of Orange County where she works for the Servicing Agent. In response, Claimant asserted that Flagler County was the proper county for the adjuster’s deposition because that is where injury occurred and the Employer’s business is located.

The Judge of Compensation Claims (JCC) denied the amended motion for protective order without a hearing in an order entered on October 13, 2012. The order concluded, without any analysis or case citations, that “Claimant’s contention that [the adjuster’s] deposition may be appropriately scheduled in the county of venue is ... well taken.” This petition for writ of certiorari followed.

ANALYSIS

A petition for writ of certiorari is the proper remedy to review a non-final order granting discovery. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987) (“Orders granting discovery ... have traditionally been reviewed by certiorari.”); see also Triple Fish Am., Inc. v. Triple Fish Int’l, L.C., 839 So.2d 913, 914 n. 1 (Fla. 5th DCA 2003) (“Certio-rari review is available to review trial court orders requiring that depositions take place at an erroneous location.”). To obtain relief by certiorari, the petitioner must establish more than mere legal error; the petitioner must establish that the challenged order “depart[s] from the essential requirements of law and thus cause[s] material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Martin-Johnson, 509 So.2d at 1099.

The “irreparable harm” prong of the certiorari standard — i.e., material injury that cannot be remedied on appeal — is jurisdictional and must be considered first. See Bd. of Trs. of Internal Improvement Trust Fund v. Am. Educ. Enters., L.L.C., 99 So.3d 450, 454-55 (Fla.2012). This prong is met here because requiring a deponent to appear for deposition at an erroneous location results in harm that cannot be remedied on appeal in that once the deposition is taken, it cannot be un-taken. See Dep’t of Highway Safety & Motor Vehicles v. Marks, 898 So.2d 1063, 1063 n. 1 (Fla. 5th DCA 2005) (noting that an order allowing for the taking of a deposition is one letting the “cat out of the bag” and thus causing irreparable harm if the order departs from the essential requirements of law). Thus, the focus in this case is on the “departure from the essential requirements of law” prong of the certiora-ri standard.

The Workers’ Compensation Law provides that depositions of witnesses or parties shall be taken in the manner prescribed by rules governing the taking of such depositions in civil actions in circuit court. See § 440.30, Fla. Stat. (2011). The Florida Rules of Civil Procedure set forth the procedure by which the deposition of a corporate representative of a party may be noticed, but the rules do not prescribe where the deposition is to be taken. See Fla. R. Civ. P. 1.310(b)(6). However, case law makes clear that the deposition of a defendant’s corporate representative is to be taken in the county where the corporation has its principal place of business if the defendant is seeking no affirmative relief in the proceeding. See, e.g., Fortune Ins. Co. v. Santelli, 621 So.2d 546, 547 (Fla. 3d DCA 1993).

In Fortune, the defendant filed a petition for writ of certiorari seeking review of an order denying its motion for protective order and requiring it to produce its corporate representative for a deposition in Dade County where the action was pending. Id. The defendant, who was not seeking affirmative relief in the underlying proceeding, argued that the deposition should be conducted in Duval County because that was where its principal place of business was located, the designated corporate representative worked and resided, and all of the documents and files were located. Id. The Third District agreed and quashed the order denying the defendant’s motion for protective order. Id. at 548.

The court explained that while a plaintiff can be required to be deposed in the forum where the action is pending, a defendant “will not be required to travel a great distance and incur substantial expenses to be deposed by the plaintiff, unless the defendant is seeking affirmative relief.” Id. at 547; accord Donahoo v. Matthews, 660 So.2d 391, 392 (Fla. 5th DCA 1995) (“Generally, a defendant will not be required to travel a great distance and incur substantial expense for the purpose of being deposed by a plaintiff, unless the defendant is seeking affirmative relief.”); Espana v. Redneris, 661 So.2d 1295, 1296 (Fla. 4th DCA 1995) (“The general rule is that a defendant not requesting affirmative relief is not required to travel to the forum of the action for a discovery deposition absent extraordinary circumstances.”). The court further explained that, under federal law, “the deposition of a representative of a corporate defendant is ordinarily taken at the corporation’s principal place of business, unless justice requires otherwise.” Fortune Ins. Co., 621 So.2d at 547. The court found this rule consistent with the rules of discovery under Florida law and accordingly held that the trial court departed from the essential requirements of law in denying the motion for protective order because “[Requiring the Petitioner to produce its corporate representative in Dade County [rather than Du-val County] would constitute an undue burden or expense on the Petitioner.” Id. at 547-48 (citing Fla. R. Civ. P. 1.280(c)). We agree with this analysis.

This case, like Fortune, involves a corporate defendant, the Servicing Agent, who is not seeking affirmative relief and whose headquarters, records, and corporate representative are all located in a different county (Orange County) than the county in which the action is pending and the deposition was set (Flagler County). As in Fortune, it would constitute “an undue burden or expense” on the Servicing Agent to produce its corporate representative for deposition in Flagler County, rather than in Orange County. Accordingly, consistent with the holding in Fortune, we conclude that the JCC departed from the essential requirements of law in denying the E/SA’s motion for a protective order.

We have not overlooked this court’s decision in Ormond Beach First National Bank v. J.M. Montgomery Roofing Company, 189 So.2d 289 (Fla. 1st DCA 1966), which was relied on by Claimant below and in her response to the petition for writ of certiorari. However, we find that case distinguishable because it involved the deposition of the corporate representative of the plaintiff, not a defendant. Id. at 243 (quashing protective order that precluded the defendant from taking the deposition of the plaintiffs corporate officers in the county where suit was pending); see also Comments to Fla. R. Civ. P. 1.310 (citing with approval federal decisions requiring the plaintiff to appear for deposition in county where action is pending); Chittick v. E. Air Lines, Inc., 403 So.2d 595, 597 (Fla. 1st DCA 1981) (affirming the dismissal of a claim for workers’ compensation benefits based on the claimant’s failure to attend her deposition in the county where the claim was pending, as directed by the deputy commissioner).

In sum, because the JCC departed from the essential requirements of law in denying the E/SA’s amended motion for protective order, we grant the petition for writ of certiorari and quash the challenged order. We need not remand for entry of the protective order sought by the E/SA (as was done in Fortune) because, according to Claimant, the adjuster’s deposition was set in Orange County after the petition for writ of certiorari was filed.

PETITION GRANTED; ORDER QUASHED.

ROWE and MARSTILLER, JJ., concur.

      . The order twice noted that the E/SA did not cite any authority supporting its contention that the adjuster’s deposition cannot be taken in the county where the PFB is pending. The amended motion for protective order was certainly not a model pleading, and its failure to cite any authority may help to explain the JCC's erroneous ruling. That, however, does not excuse the ruling or immunize it from review because JCCs have an independent obligation to research and be familiar with the law governing the issues presented to them for resolution. Cf. § 440.29(1), Fla. Stat. (2011).

      . Claimant filed a motion to dismiss the petition as moot on this basis, but after considering the response in opposition to the motion filed by the E/SA, a motions panel of this court denied the motion "without prejudice to [Claimant]’s right to raise such grounds for dismissal in the response to the petition for writ of certiorari.” In her response to the petition, Claimant changed course and took the position that the case is not moot because she intends to seek sanctions against the E/SA based on the adjuster's failure to appear at the originally-noticed deposition after entry of the challenged order. Because of these potential collateral consequences, we elected to decide this case on the merits even though we conclude that the petition is indeed moot because the adjuster's deposition was set (and presumably held) in the proper county. See Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (explaining that a moot case should normally be dismissed unless [1] the questions raised are of great public importance or [2] likely to recur, or [3] collateral legal consequences affecting rights of a party flow from issue to be determined).


text:
    Manuel BETANCOURT, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4202.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Manuel Betancourt pled no contest to various crimes and received a downward departure sentence based on an alleged need for specialized medical treatment. The State appealed, and this Court reversed, concluding that Betancourt failed to prove with competent, substantial evidence, that the necessary medical treatment he required could not be provided by the Department of Corrections (“DOC”). See State v. Betancourt, 40 So.3d 53, 57 (Fla. 5th DCA 2010). On remand, a new sentencing hearing was conducted and again, Betancourt asserted that he needed specialized medical treatment that was not available from the DOC. The trial court, properly concluding that it was bound by our earlier decision, found that Betancourt failed to demonstrate that DOC could not provide the necessary care and treatment.

While this appeal was pending, this Court receded from its numerous prior decisions and has now held that a defendant is not required to establish that the needed treatment is unavailable in DOC. See State v. Owens, 95 So.3d 1018 (Fla. 5th DCA 2012)(en banc). Betancourt’s resen-tencing occurred before we decided Owens. Because the trial court did not have the benefit of our decision and originally indicated a desire to impose a downward departure sentence, we reverse Betancourt’s sentence and remand this matter for re-sentencing so that the court may consider our holding in Owens.

REVERSED and REMANDED.

ORFINGER, C.J., PALMER and BERGER, JJ., concur.


text:
    Stanley Leveille COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4342.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    Paula C. Coffman and Jeffrey D. Deen, Regional Counsel, Office of Criminal Conflict & Civil Regional Counsel, Orlando, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Appellant was convicted of several offenses in connection with the burglary of vehicles. He challenges only his conviction and sentence on the charge of possession of burglary tools. We reverse and remand for resentencing. See, e.g., Latimore v. State, 753 So.2d 690, 691-92 (Fla. 4th DCA 2000) (reversing for lack of evidence to convict for possession of burglary tools).

REVERSED AND REMANDED.

SAWAYA, TORPY and JACOBUS, JJ., concur.


text:
    Marco Antonio MONTEALEGRE, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-499.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Marco Montealegre challenges his convictions for battery on a law enforcement officer, resisting with violence, petit theft, and trespass. We affirm the convictions and sentences without discussion, but remand the matter so that the trial court can correct an error in the judgment as it relates to the trespass conviction. As the State concedes, the judgment erroneously reflects a conviction for burglary rather than the lesser-included offense of trespass. Montealegre is entitled to a judgment that correctly reflects his convictions. See, e.g., Bell v. State, 93 So.3d 513, 514 (Fla. 5th DCA 2012); Lopez-Vasquez v. State, 966 So.2d 996, 997 (Fla. 5th DCA 2007); Davis v. State, 529 So.2d 1251, 1252 (Fla. 5th DCA 1988). Given the ministerial nature of the correction, Montealegre need not be present for this correction. See Wiggins v. State, 992 So.2d 363, 364 (Fla. 5th DCA 2008); Lamm v. State, 871 So.2d 918, 919 (Fla. 5th DCA 2004).

AFFIRMED; REMANDED FOR ENTRY OF CORRECTED JUDGMENT.

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


author: GRIFFIN, J.

text:
    Abdallah BOUMARATE, et al., Appellant, v. HSBC BANK USA, N.A., etc., Appellee.
    No. 5D12-1269.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    Richard W. Withers, Craig L. Lynd and Angela M. Domenech, of Kaufman, En-glett, Lynd, PLLC, Orlando, for Appellant.
    Kimberly N. Hopkins, of Shapiro, Fish-man, and Gaché, LLP, Tampa, for Appel-lee.
   GRIFFIN, J.

Abdallah Boumarate and Jennifer Bratc-hell-Boumarate [“Appellants”] appeal a summary final judgment entered by the trial court in favor of HSBC Bank, N.A. [“the Bank”] to foreclose a residential mortgage and recover on a promissory note executed in favor of Novelle Financial Services, Inc. in connection with the mortgage. The complaint contained both a count for foreclosure and a second count to re-establish a lost instrument (the note) pursuant to section 673.3091, Florida Statutes.

In order to be entitled to judgment, the Bank must prove its right to enforce the note as of the date of the summary judgment hearing, including how it obtained the Novelle Financial Services note and the circumstances of its loss. Beaumont v. Bank of New York Mellon, 81 So.3d 553, 554-55 (Fla. 5th DCA 2012). The Bank did file a “lost instrument affidavit,” but it merely averred that it currently held the note, but could not find it. The Bank does not dispute its burden of proof on this point; it merely argues that by failing to raise this issue in its pleading, Appellants lost their right to complain of the defect. However, this burden remained with the bank. Beaumont, 81 So.3d at 555; Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773 (Fla. 4th DCA 2011).

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.

      . The Bank's "standing” was not an issue due to Appellants’ default.


author: TORPY, J.

text:
    Mark BILLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2820.
    District Court of Appeal of Florida, Fifth District.
    March 28, 2013.
    Thomas E. Cushman, St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   TORPY, J.

Appellant pleaded guilty to fifteen counts of possession of child pornography and one count of transmission of pornography by electronic device, reserving his right to appeal the denial of his dispositive motion to dismiss the charges. He argues that the trial court erred in denying his motion to dismiss the charges of possession of child pornography because section 827.071(5), Florida Statutes (2010), is unconstitutional and void for vagueness. He also argues that the trial court erred in denying his motion to dismiss the charge of unlawful transmission of pornography because there was no evidence that he “transmitted” (as that term is defined by statute) anything. We affirm Appellant’s convictions on the possession of child pornography charges without further discussion. State v. Cohen, 696 So.2d 435, 436 (Fla. 4th DCA 1997). We reverse the conviction and sentence on the transmission of pornography charge.

Using a peer-to-peer sharing network known as Limewire, Appellant downloaded pornographic images of children to his home computer. The files were obtained from other Limewire subscribers who permitted access to their files. Using the sheriff’s office’s own Limewire subscription, sheriffs agents then retrieved images from an accessible folder in Appellant’s computer via the internet. Based on the retrieval of these images, Appellant was charged with and convicted of one count of “transmitting” child pornography using an electronic device, in violation of section 847.0137(2). The statute defines “transmit” as “the act of sending and causing to be delivered any image, information, or data from one or more persons or places to one or more other persons or places over or through any medium, including the Internet, by use of any electronic equipment.” Id. Thus, the legal issue we are asked to confront is whether, by allowing access to files through a sharing network, Appellant “sent” images to another person.

The State concedes that Appellant did not affirmatively dispatch the images using a function on his computer. Indeed, Appellant had no knowledge that agents retrieved the images. The State posits that Appellant essentially sent the files because he maintained them in a shared folder and knowingly allowed other Limewire subscribers to access them. Conversely, Appellant argues that “send” means a purposeful act to deliver the files, rather than the mere allowance of access to the files. One definition of the word “send” is, “to cause to go or be carried.” Webster’s New World College Dictionary 1305 (4th ed. 2001). This definition supports Appellant’s construction of the statute, although the State’s proffered construction is not unreasonable. Under statutory lenity principles, however, when a criminal statute is susceptible of more than one construction, we are compelled to construe the statute most favorable to Appellant. § 775.021(1), Fla. Stat. Accordingly, we reverse Appellant’s conviction for transmitting child pornography and remand this cause for resen-tencing.

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

ORFINGER, C.J., and GRIFFIN, J., concur.


author: THOMAS, J.

text:
    BON SECOURS HEALTH SYSTEM and Gallagher Bassett Services, Inc., Appellants, v. Angelina BONANNO, Appellee.
    No. 1D12-4268.
    District Court of Appeal of Florida, First District.
    March 28, 2013.

      Charles W. Hall, Mark D. Tinker, and Kate B. Munkittrick of Banker Lopez Gassier P.A., St. Petersburg, for Appellants.
    Brian O. Sutter of All Injuries Law Firm, P.A., Port Charlotte, for Appellee.
   THOMAS, J.

In this workers’ compensation appeal, the Employer/Carrier (E/C) challenges an order entered by the Judge of Compensation Claims (JCC) that awards Claimant permanent total disability supplemental benefits and E/C-paid penalties and interest based on the untimely payment of said benefits. We affirm the JCC’s award of permanent total disability supplemental benefits and interest without further comment, but we reverse and remand on the issue of the imposition of E/C-paid penalties.

Under the applicable statutory authority, the payment of penalties is excused where nonpayment results from “conditions over which the E/C had no control.” See § 440.20(6), Fla. Stat. (2008); see also Jones v. City of St. Petersburg, 46 So.3d 637 (Fla. 1st DCA 2010) (holding penalties should have been excused where untimely payment of supplemental permanent total disability benefits resulted from conditions over which the E/C had no control). Although the JCC found the payment of Claimant’s permanent total disability supplemental benefits was untimely, the JCC made no findings as to whether the untimely payment resulted from conditions over which the E/C had no control. Because it is not clear why the JCC imposed penalties in this case, and further, because the facts of this case could conceivably permit a finding of excusable delay under the law, the lack of factual findings supporting the imposition of penalties against the E/C is not harmless error.

Accordingly, the award of permanent total disability supplemental benefits, and interest on those late payments, is AFFIRMED, and the award of E/C-paid penalties on the benefits at issue is REVERSED and REMANDED for proceedings consistent with this opinion.

LEWIS and MAKAR, JJ., concur.


author: PER CURIAM. WOLF, J.,

text:
    ESCAMBIA COUNTY SCHOOL DISTRICT/BOARD, Appellants, v. Tina VICKERY-ORSO, Appellee.
    No. 1D12-4813.
    District Court of Appeal of Florida, First District.
    April 3, 2013.

      Joseph L. Hammons of the Hammons Law Firm, Pensacola, for Appellants.
    Jeremiah J. Talbott of the Law Office of Jeremiah J. Talbott, P.A., Pensacola, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer seeks review of an order of the Judge of Compensation Claims (JCC) to the extent it awards Claimant an upward adjustment in the compensation rate, and penalties, interest, costs, and attorney’s fees associated with that adjustment. For the reasons stated herein, we find error and reverse this award.

On February 26, 2008, Claimant suffered multiple injuries in a compensable motor vehicle accident. On August 22, 2011, the Employer administratively accepted her as permanently and totally disabled. Claimant sought permanent total disability (PTD) benefits from December 17, 2010, to April 25, 2011, and adjustment of her average weekly wage (AWW) based on her wages together with includable fringe benefits under section 440.02(28), Florida Statutes. Subsequent litigation resulted in a final order which, in part, denied the requested PTD benefits. We do not disturb that ruling on appeal.

The final order also included the JCC’s findings regarding the appropriate AWW amounts both before and after Claimant’s resignation, which affected the inclusion (vel non) of fringe benefits in AWW. The JCC agreed with the Employer’s calculations of AWW amounts, but disagreed with the Employer’s calculations of the appropriate compensation rates.

Section 440.15(l)(a), Florida Statutes (2007), states that the compensation rate for PTD benefits is “66 2/3 percent of the average weekly wages.” The JCC calculated the appropriate compensation rate by multiplying the AWW by .6667. The Employer had calculated the compensation rate by multiplying the AWW by .66667. The different multipliers led to different results — the focus of the dispute here. Yet both results are greater than the result dictated by strict application of the statute, which states the compensation rate is not .6667 or .66667 of the AWW, but “66 2/3 percent.” See generally Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 396 (Fla. 1st DCA 2003) (“First, the court must look to the plain language of the statute. Where the language is clear and unambiguous, it must be given its plain and ordinary meaning.”). An illustration of the proper calculation method follows.

Begin with the appropriate AWW for the period before Claimant’s resignation: $794.21. Using the most strict reading of the statute: sixty-six percent of 794.21 is 524.1786. One percent of 794.21 is 7.9421. Two-thirds of one percent of 794.21 — that is, two-thirds of 7.9421 — is 5.2947. The fraction is determined by multiplying by two and then dividing the result by three. Adding 524.1786 and 5.2947 together produces a result of 529.4733. Rounding to cents gives us the appropriate compensation rate, $529.47.

Notably, the mathematical equivalent of the statutory definition of the compensation rate is still a fractional amount: two-thirds of the AWW. In this example, one would multiply 794.21 by two to get 1,588.42, and then divide 1,588.42 by three to get 529.47; rounded to cents, this again is $529.47. Using the Employer’s multiplier — a decimal number — gives a different, less accurate, result: 794.21 times .66667 is 529.4759807, which, rounded to cents, is $529.48. And using the JCC’s multiplier gives yet a third result: 794.21 times .6667 is 529.499807, which, rounded to cents, is $529.50. These differences of two or three cents become significant when repeated over multiple payments, and are even more significant when they form the basis of awards of penalties, interest, costs, and attorney’s fees.

Because the Employer did not pay less than the compensation rate required by statute, the JCC erred in ordering the Employer to pay more. The JCC consequently erred in awarding associated penalties, interest, costs, and fees.

AFFIRMED in part and REVERSED in part.

RAY and SWANSON, JJ., concur; WOLF, J. concurring in part and dissenting in part.

WOLF, J.,

Concurring in part and Dissenting in part.

I reluctantly agree to reverse because I can find no precedent which would allow us to affirm a miscalculation of the compensation rate simply because the amount involved is de minimis. I would, however, exercise our discretion and award Claimant attorney’s fees for defending this appeal pursuant to section 440.34(5), Florida Statutes (2007), because it is my belief that this appeal should not have been taken for the reasons stated within this opinion.

The crux of this appeal is an alleged miscalculation of the compensation rate. The disputed amount at most is 3<t per week. Claimant states in her brief that the total maximum difference in total benefits that would be paid out is insignificant. The Employer does not dispute this amount but asserts that “without requiring the Employer to pay the Claimant an attorney’s fee and costs [for benefits obtained in front of the JCC], it is unlikely this appeal would have resulted.”

The Employer, however, does not specifically argue that the JCC erred in granting an attorneys fee based on the insignificant amount involved in this case, nor is there an argument presented that the amount of fees awarded below was excessive based on benefits obtained. In fact, it is not clear that the amount of fees had even been determined at the time this appeal was taken.

It is also unclear to me that the potential size of the trial attorney’s fees in this case justifies an appeal.

The injury in this case took place prior to July 1, 2009; thus, in determining the appropriate trial fee to be awarded, the court would be governed by the test of reasonableness and the factors enumerated in Lee Engineering & Construction Co. v. Fellows, 209 So.2d 454 (Fla.1968), as codified in section 440.34(1), Florida Statutes (1977). See Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008). Two very important factors in this calculation are: (1) the amount involved in the controversy and the benefits resulting to Claimant, and (2) the time and labor required in relation to the controversy at issue. In the instant case, both factors would be minimal. As previously noted, the amount in controversy below was insignificant. The issue in dispute was simple and involved presentation to the JCC of a mathematical calculation formula — hardly a time-consuming effort. If more than a small fee is awarded to Claimant for her attorney’s work before the JCC, the Employer may have an issue worthy of appeal. At the present time, there is no significant dispute justifying the time and expense of this appeal. I would thus award Claimant an appellate attorney’s fee.

      . Another arguable reason for taking this appeal is the effect of the JCC’s decision as to the systematic extra benefits which would have to be paid rather than just the amount involved in this case. I reject this as a reason not to grant Claimant appellate fees for a number of reasons: (1) the Employer did not raise the issue; (2) there is nothing in the record or the briefs to support the idea that the extra systematic costs would be significant; and (3) the JCC’s decision had no prec-edential value.


author: WALLACE, Judge.

text:
    John NEAL, a/k/a John Allen Neal, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-940.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.
    Brooke E. Terpening of Lenaraon Law, PLLC, Miami, and Sean Jason Gelb, M.D., J.D., Miami, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

John Allen Neal appeals his judgment and sentences for fraudulent use of a credit card, a violation of section 817.61, Florida Statutes (2009), and for the violation of the conditions of pretrial release, a violation of section 741.29(6), Florida Statutes (2009). Because Neal’s prior conviction in Sarasota County barred his conviction in Charlotte County for the fraudulent use of the same credit card within the same six-month period, we reverse his judgment and sentence for fraudulent use of a credit card. We also reverse Neal’s judgment and sentence for violation of the conditions of pretrial release.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

During the four-day period from July 9 to July 12, 2009, Neal — without authorization — used the same credit card belonging to the victim seven times in Sarasota County and nine times in Charlotte County. On September 1, 2009, the State Attorney for the Twelfth Judicial Circuit filed an information in the Sarasota County Circuit Court charging Neal with one count of fraudulent use of the credit card more than two times within a six-month period or obtaining money, goods, services, or anything else of value in the amount of $100 or more, a third-degree felony. See §§ 817.61, 67(2). On October 8, 2009, Neal entered a plea of nolo contendere to the Sarasota County charge. The Sarasota circuit court adjudged him to be guilty and sentenced him to time served in the county jail, to be followed by a period of twelve months on probation.

On June 3, 2010, the State Attorney for the Twentieth Judicial Circuit filed an information in the Charlotte County Circuit Court charging Neal with one count of fraudulent use of the same credit card in Charlotte County more than two times within a six-month period or obtaining money, goods, services, or anything of value in the amount of $100 or more, a third-degree felony. See §§ 817.61, 67(2). A jury found Neal guilty on the Charlotte County charge. After the verdict, Neal filed a motion to arrest the judgment or, in the alternative, for a new trial. Neal argued that his conviction in Charlotte County violated principles of double jeopardy because he had already been convicted of the same offense in Sarasota County. The circuit court denied Neal’s motion, adjudged him to be guilty, and sentenced him as a habitual offender to a term of ten years in the state prison. This appeal followed.

On appeal, Neal argues that principles of double jeopardy bar his conviction in Charlotte County for fraudulent use of a credit card because he was previously convicted in Sarasota County for the identical offense. Neal also makes several other arguments. Our disposition of the double jeopardy issue renders Neal’s other arguments moot. Before addressing Neal’s double jeopardy argument, we first examine section 817.61, the statute under which Neal was convicted in both counties.

II. THE STATUTE

Section 817.61, the statute under which the State chose to prosecute Neal in both Sarasota County and in Charlotte County, provides as follows:

A person who, with intent to defraud the issuer or a person or organization providing money, goods, services, or anything else of value or any other person, uses, for the purpose of obtaining money, goods, services, or anything else of value, a credit card obtained or retained in violation of this part or a credit card which he or she knows is forged, or who obtains money, goods, services, or anything else of value by representing, without the consent of the cardholder, that he or she is the holder of a specified card or by representing that he or she is the holder of a card and such card has not in fact been issued violates this section. A person who, in any 6-month period, uses a credit card in violation of this section two or fewer times, or obtains money, goods, services, or anything else in violation of this section the value of which is less than $100, is subject to the penalties set forth in s. 817.67(1). A person who, in any 6-month period, uses a credit card in violation of this section more than two times, or obtains money, goods, services, or anything else in violation of this section the value of which is $100 or more, is subject to the penalties set forth in s. 817.67(2).

(Emphasis added.) Under section 817.67, a violation for which subsection (1) is applicable constitutes a misdemeanor of the first degree; a violation for which subsection (2) applies is a felony of the third degree.

The penalty provisions in the last two sentences of section 817.61 pose the problem of statutory construction presented by this case: determining the allowable unit of prosecution. Neal argues that the legislative intent is to punish fraudulent, multiple uses of one credit card occurring within a six-month period as either a single misdemeanor or a single felony. According to Neal, whether the violation is a misdemeanor or a felony depends on the number of times the card is used within the applicable six-month period or the value of the money, goods, services, or anything else of value obtained within the six-month period. In response, the State contends that each use of the credit card in the prohibited manner constitutes a separate violation of the statute. According to the State, the portion of section 817.61 concerning the use of the credit card within a six-month period relates only to the degree of the offense, not to the allowable unit of prosecution.

Section 817.61 appears in Part II of chapter 817 of the Florida Statutes. Part II of chapter 817 is known as the 1967 “State Credit Card Crime Act” (the SCCCA). § 817.57. The legislation appears at chapter 67-340, sections 1-18, pages 1081-87, Laws of Florida. The legislature based the SCCCA on a model act known as the “State Credit Card Crime Act” (the Model Act). Jack B. Weinstein & Tom J. Farer, State Credit Card Crime Act (American Express Co.1967); Jerry G. South, Legal Steps and Pitfalls in Bank Credit Cards, 87 Banking L.J. 222, 234 (Mar.1970). The authors of the Model Act were professors at the Columbia Law School. They drafted the Model Act in late 1966 at the request of the American Express Company. South, supra, at 234. Florida adopted its version of the Model Act — including section 817.61 — the following year. Several other jurisdictions have adopted versions of the Model Act that include a provision similar to section 817.61, including its six-month feature. See, e.g., Ariz.Rev.Stat. Ann. §§ 13-2101 to -2107 (1969); CaLPenal Code §§ 484d-i (West 1967); Haw.Rev.Stat. §§ 708-8100, 708-8101 to -8104, 708-8106 (1986); Ky. Rev.Stat. Ann. §§ 434.550-650, 660-670, 680, 690 (West 1970); N.M. Stat. Ann. §§ 30-16-25 to -38 (West 1971); V.I.Code Ann. tit. 14 §§ 3001-8004, 3005-3016 (1972).

Section 817.61 is based on section 4 of the Model Act. However, section 817.61 differs from section 4 of the Model Act in two significant respects. First, the Florida Legislature added a provision in section 817.61 that raises the level of the severity of the offense if the credit card is used more than two times within a six-month period. Under section 4 of the Model Act, the level of the severity of the offense is based only on the amount of value obtained within a six-month period, not the number of times the credit card is used. Second, under section 4 of the Model Act, the threshold of the value obtained within a six-month period sufficient to raise the severity of the offense is set at $500. In section 817.61, the Florida Legislature set the threshold of the value obtained within a six-month period sufficient to raise the severity of the offense substantially lower at $100.

III. DISCUSSION

Section 817.61 is atypical compared to other Florida criminal statutes in that it attaches important consequences to the number of violations of the statute or the amount of value obtained within a designated period of time, i.e., six months. The issue raised by Neal arises from the Model Act’s attachment of significant consequences to events occurring within a six-month period as modified and incorporated into section 817.61. The parties have not cited us to any similar Florida criminal statute.

The only reported opinion in Florida that addresses this issue is a special concurring opinion written by Chief Judge Anstead of the Fourth District, later Chief Justice of the Supreme Court of Florida, in Williams v. State, 451 So.2d 1047, 1047 (Fla. 4th DCA 1984) (Anstead, C.J., specially concurring). In the Williams case, the defendant had fraudulently used a credit card to make four purchases in one day. Id. at 1048. The total amount of the purchases exceeded $100. Id. Under these circumstances, Chief Judge Anstead concluded that the State could not prosecute the defendant for more than one felony under section 817.61. Id.

In several other jurisdictions that have adopted versions of the Model Act, appellate courts have issued opinions ruling on the issue posed by this appeal. Taking Chief Judge Anstead’s special concurring opinion into account, courts from at least six jurisdictions have addressed this issue. The judges on these courts have expressed widely divergent views on the interpretation of their local statutes that are based on the Model Act. Some judges view each unauthorized use of the credit card as a separate offense. Commonwealth v. Lewis, 903 S.W.2d 524, 525-26 (Ky.1995) (four-member majority); State v. Salazar, 98 N.M. 70, 644 P.2d 1059, 1060 (N.M.Ct.App.1982). Other judges conclude that all unauthorized uses of the credit card within a six-month period constitute a single offense. Williams, 451 So.2d at 1048; State v. Daly, 4 Haw.App. 52, 659 P.2d 83, 85-86 (1983); State v. Boyenger, 95 Idaho 396, 509 P.2d 1317, 1323 (1973), overruled on other grounds by State v. Curtis, 130 Idaho 522, 944 P.2d 119, 122 n. 2 (1997); Lewis, 903 S.W.2d at 528 (three-member minority). The Third Circuit, construing a Virgin Islands statute similar to section 817.61, adopted a hybrid approach to interpreting the statutory scheme. Gov’t of the V.I. v. Graves, 593 F.2d 223, 228-29 (3d Cir.1979). The Third Circuit authorizes separate convictions for each use of the credit card within the same six-month period. However, the Third Circuit precludes the imposition of more than the maximum penalty for one offense regardless of how many times the offender uses the credit card within the six-month period. Id.

Based on our review of Chief Judge Anstead’s concurring opinion in Williams and the cases from the other jurisdictions cited above, we believe that one can make persuasive arguments on both sides of the issue before us. However, we conclude that the unusual structure of section 817.61 requires the consolidation of all unauthorized uses of the same credit card within a six-month period into a single offense. Of course, the legislature could amend the statute to make each unauthorized use of a credit card within the six-month period a separate offense. However, if the legislative intent was to make each unauthorized use of a single credit card within the same six-month period a separate offense, the current version of the statute does not accomplish this goal.

The notes appended to the Model Act by its authors support the view that all uses of the credit card within the relevant six-month period constitute a single offense. In their notes to section 4 of the Model Act, the basis for section 817.61, the authors state, in pertinent part, as follows:

Throughout this statute an attempt has been made to penalize more heavily the professional criminal. Here and in section 5 this distinction is expressed in terms of the quantity of goods and services obtained within a six-month period. It is, without doubt, a very rough rule of thumb; but it is consistent with the traditional manner of distinguishing the petty from the serious crime. Adequate discretion is granted the sentencing judge to meet the particular punishment needs of any defendant, see section 10, infra.[ ]

Weinstein & Farer, State Credit Card Crime Act, 35-86. This comment suggests that the authors of the Model Act intended that multiple uses of the same credit card within a six-month period would be aggregated rather than treated as separate offenses. Aggregating the offenses within the relevant six-month period is sufficient to serve the authors’ stated goal of identifying the professional criminal and singling him or her out for harsher punishment than the petty criminal.

We also note that the interpretation of section 817.61 making all uses of the credit card within the relevant six-month period a single offense is substantially the same approach that the State pursued at the trial court level. Neal used the credit card in question seven times in Sarasota County and nine times in Charlotte County during the period from July 9 to July 12, 2009. Nevertheless, the State Attorney for the Twelfth Judicial Circuit only charged him with one offense in Sarasota County. Likewise, the State Attorney for the Twentieth Judicial Circuit only charged him with one offense in Charlotte County. If — as the State now contends on appeal— each use of the card was a separate offense, then why did each state attorney not charge Neal with a separate offense for each time he used the card in their respective jurisdictions instead of charging him with only one offense? The individual charging decisions made by each of the two state attorneys are more in line with Neal’s position than with the State’s appellate argument.

Finally, we note that insofar as the parties’ briefs reflect and as our independent research reveals, there are five reported appellate opinions from other jurisdictions that address the issue before us. Twenty-one judges were involved in these opinions. Of these twenty-one judges, fourteen judges have expressed the view that the applicable local statute based on the Model Act authorizes only one conviction — or, at the very most, a penalty limited to the maximum for one offense — for all unauthorized uses of a single credit card within a six-month period. Seven judges have decided that each unauthorized use of the credit card is a separate offense.

Of course, we do not decide legal issues based on the majority vote of appellate judges from other jurisdictions. But the split of considered judicial opinion on the interpretation of substantially similar statutory provisions based on the Model Act convinces us that section 817.61 is subject to at least two interpretations, both of which are reasonable. Under these circumstances, the rule of lenity requires that we interpret the statute most favorably to the accused. § 775.021(1), Fla. Stat. (2009); State v. Chubbuck, 88 So.3d 918, 922 (Fla. 4th DCA 2012).

IV. CONCLUSION

For these reasons, we hold that Neal’s conviction in Charlotte County for the fraudulent use of the credit card in question within the same six-month period violates his right not to be prosecuted and punished twice for the same offense. U.S. Const. amend. V; art. I, § 9, Fla. Const.; North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (recognizing that the guarantee against double jeopardy protects the accused against a second prosecution for the same offense after conviction); Rodriguez v. State, 875 So.2d 642, 644 (Fla. 2d DCA 2004) (same). Accordingly, we reverse Neal’s judgment and sentence for the fraudulent use of a credit card. We also reverse Neal’s judgment and sentence for violation of the conditions of pretrial release.

Reversed.

KELLY, J., Concurs.

CRENSHAW, J., Concurs in result only.

      . We agree with Neal that the circuit court improperly adjudged him guilty and sentenced him for violating the conditions of pretrial release. The State has properly conceded error on this point. Accordingly, this issue does not warrant further discussion.

      . In 2001, the Third Circuit reaffirmed its construction of the applicable statutory design in Government of the Virgin Islands v. Walker, 261 F.3d 370, 373-74 (3d Cir.2001).

      . Notably, in 2006, the Hawaii Legislature amended its statute to provide that "[f]or purposes of this section, each separate use of a credit card that exceeds $300 constitutes a separate offense.” 2006 Haw. Sess. Laws 230, § 44.

      . Section 10 of the Model Act provides that a person found guilty of the lesser offense shall be fined not more than $1000 or imprisoned for not more than one year, or both. A person found guilty of the greater offense shall be fined not more than $3000 or imprisoned for not more than three years, or both.


author: DAVIS, Judge.

text:
    Marie Golino BAZZEL, Appellant, v. David W. BAZZEL, Appellee.
    No. 2D11-2836.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.

      Debra J. Sutton of Sutton Law Firm, Bartow, for Appellant.
    Jean Marie Henne of Jean M. Henne, P.A., Winter Haven, for Appellee.
   DAVIS, Judge.

Marie Golino Bazzel, the Former Wife, challenges the final judgment of dissolution of her marriage to David W. Bazzel, the Former Husband. The Former Wife challenges (1) the trial court’s time-sharing plan, which allowed the Former Husband 60% of the time with the parties’ minor children, (2) the trial court’s denial of the Former Wife’s request to call the parties’ eleven-year-old son as a witness, (3) the trial court’s distribution of the parties’ stock investment, (4) the trial court’s characterization of certain credit card debt as the Former Wife’s nonmarital debt, and (5) the trial court’s calculation of child support which required the Former Wife to pay child support to the Former Husband. Because the trial court’s child support calculation is not supported by the record, we reverse that portion of the final judgment and remand for the trial court to recalculate child support. We affirm the remainder of the final judgment without comment.

The Former Wife petitioned for the dissolution of the parties’ fifteen-year marriage in June 2009. During the litigation the trial court awarded the Former Wife $750 per month in temporary alimony. In the final judgment, the trial court awarded the Former Wife $1300 per month in dura-tional alimony. The trial court also found that the Former Wife had a monthly income of $300. Combining the durational alimony award and her monthly income, the court used the figure of $1600 a month as the Former Wife’s income for purposes of calculating child support.

The trial court further determined that the Former Husband had a net monthly income of $3500 a month after deducting the $1300 awarded as durational support. This would suggest that the trial court found the Former Husband’s monthly income to be $4800 prior to the deduction of the court ordered support. However, such figure is not supported by the record.

Both parties submitted to the trial court child support guidelines worksheets, and neither party used this figure as the Former Husband’s income. At trial, the Former Husband testified to the accuracy of the information contained in his amended financial affidavit. This document showed the Former Husband’s monthly income to be $4753 after deducting the $750 in temporary alimony ordered by the court or $5503 prior to paying any alimony ($4758 4- $750). When this amount is reduced by the $1300 monthly durational alimony payment, the Former Husband’s income for child support purposes is $4203. Accordingly, the trial court abused its discretion in establishing the incomes of the parties for the purpose of calculating child support. See Zinovoy v. Zinovoy, 50 So.3d 763, 768 (Fla. 2d DCA 2010) (“It is the function of the appellate court to determine whether the trial court’s judgment is supported by competent evidence, and when the trial court’s factual findings do not substantially comport with undisputed evidence in critical areas a per se abuse of discretion has occurred.”); see generally Chovan v. Chovan, 90 So.3d 898, 900 (Fla. 4th DCA 2012) (noting that appellate courts “review child support awards for an abuse of discretion”).

Additionally, the trial court abused its discretion in requiring the Former Wife to pay the Former Husband the percentage of the total support reflected by the guidelines as attributable to her even though she was to have the children 40% of the time. That is, by the final judgment, the Former Husband would have the benefit of 100% of the child support to provide for the children only 60% of the time and the Former Wife would have no support in providing for the children while she had them 40% of the time. This error is exacerbated by the fact that the Former Wife’s monthly income was only $1600 pri- or to paying child support, while the Former Husband’s monthly income prior to any child support consideration was $4203.

Although the Former Husband attempts on appeal to explain factors the trial court may have considered in deciding to order the Former Wife to pay child support to the Former Husband, the factors suggested are not. properly considered in determining child support.

Accordingly, we reverse the trial court’s award of child support and remand for the trial court to recalculate the child support award. We affirm the final judgment in all other aspects.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and KELLY, JJ„ Concur.

      . The Former Husband suggested that the Former Wife's failure to pay any child support during the pendency of the litigation and the Former Wife's failure to obtain a full-time job as instructed by the trial court early in the proceedings may have influenced the trial court’s ruling.