author: ALTENBERND, Judge. NORTHCUTT, Judge,

text:
    Julianne HOLT, Public Defender for the Thirteenth Judicial Circuit, Hillsborough County, Petitioner, v. Honorable Tracy SHEEHAN, Circuit Court Judge, Hillsborough County, Respondent.
    No. 2D12-4254.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2013.

      Julianne Holt, Public Defender, and Theda R. James, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Julianne Holt, in her capacity as the Public Defender for the Thirteenth Judicial Circuit, Hillsborough County, petitioned the Florida Supreme Court for a writ of quo warranto, disputing the authority of Judge Tracy Sheehan to issue an order disqualifying herself in all cases involving an attorney who was employed by the Public Defender as the supervising division chief for the division in which Judge Sheehan was the presiding judge. The supreme court transferred the petition to this court. We treat the petition as one for a writ of certiorari.

To the extent that Ms. Holt argues that Judge Sheehan could not disqualify herself in all cases involving a specific attorney, we deny the petition. We conclude that a trial judge, like an appellate judge, has the authority to disqualify herself in all cases involving a specific attorney under appropriate circumstances. However, we agree with Ms. Holt that Florida law does not permit the filing of an “order” of blanket disqualification in a specific court file. In this case, the error was compounded by Judge Sheehan’s decision to express her personal opinions about the specific attorney, essentially attacking the attorney’s reputation and professionalism, in the unauthorized filing. By using the public court file as a forum to attack the attorney and by including scandalous content in an order that was completely unnecessary for that file and unappealable by any party, much less by the attorney in question, Judge Sheehan departed from the essential requirements of the law. Thus, we grant the petition to the extent that the order shall be stricken from the case in which it is filed. If Judge Sheehan concludes that her relationship with this lawyer is such that she will be unable to treat the lawyer’s clients fairly, she can provide a simple written notice of blanket disqualification to her chief judge and the clerk of circuit court and file a typical notice of disqualification without further explanation in any affected court file.

I. THE CIRCUMSTANCES OF THE CHALLENGED ORDER

The assistant public defender involved in this case filed a motion to disqualify Judge Sheehan in case number 10-CJ-002677. The motion was a rather typical motion to disqualify filed on behalf of a juvenile client who was concerned that the judge would not be fair. Whether this motion was facially sufficient is a close question, but Judge Sheehan gave the juvenile the benefit of the doubt and granted the motion. Pursuant to rule 2.330(f) of the Florida Rules of Judicial Administration, she entered an order in response to this motion that stated: “The motion is granted.” To that point, the order is entirely appropriate and in accordance with proper procedure.

Unfortunately, the judge’s order did not stop there. Entitled “Order on Motion to Disqualify and Standing Order to Disqualify Court in All Cases Involving Attorney X,” after the short sentence granting the motion to disqualify, the order states:

Based upon the factual matters raised in the Motion, the Court further enters a standing Order to Disqualify the Court in all cases involving Attorney X. The Court acknowledges that she has strong feelings that Attorney X is incompetent, untrustworthy and extremely dilatory in matters related to her legal duties, based upon Attorney X’s actions and inactions in this Division over the past month and based upon Attorney X’s ten year tenure at the Courthouse which has developed her widespread reputation as an inept supervisor and mean spirited individual who publically berates her underlings as “stupid” and “idiotic.”
Based upon this information available to the court, the court acknowledges it would be appropriate to disqualify herself from all matters involving Attorney X.

Because the attorney for whom the judge entered the disqualification was the supervising division chief for the division in which Judge Sheehan was presiding, the order effectively required one of two options: either (1) Ms. Holt, as an independent, elected constitutional officer, was required to reassign this lawyer from the position that Ms. Holt wished her to fill, or (2) Judge Menendez, as the Chief Judge of the Thirteenth Judicial Circuit, was required to reassign Judge Sheehan to a division other than the division to which he had assigned her. From the record, it does not appear that Judge Sheehan attempted any coordination with either her chief judge or Ms. Holt before entering this order.

II. BLANKET DISQUALIFICATIONS BY JUDGES

The Rules of Judicial Administration provide procedures for parties to obtain the disqualification of a judge in a particular case. Fla. R. Jud. Admin. 2.330. The rule, however, does not contain procedures for a judge to disqualify herself when she reasonably concludes that the Florida Code of Judicial Conduct requires it. Canon 3E(l)(a) of the Code provides:

(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where:
(a) the judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of disputed evidentiary facts concerning the proceeding!;.]

Fla.Code Jud. Conduct, Canon 3E(l)(a). Thus, when a judge reasonably concludes that her impartiality might reasonably be questioned because of a personal bias or prejudice concerning a specific lawyer, the Code compels the judge to disqualify herself. This logically requires blanket recu-sals even though there are no published rules to implement this provision of the Code.

Virtually every judge has close friendships with lawyers, especially friendships that developed when the judge was a practicing attorney. Occasionally, a judge will have a strong disagreement with an attorney, creating at least the temporary appearance that the judge will not treat the attorney’s clients fairly. Thus, it is more the rule than the exception that a judge will have an ethical obligation to implement a blanket disqualification affecting one or more attorneys. Trial courts and appellate courts all create mechanisms to handle blanket disqualifications. How courts and clerks of court handle this issue in the absence of statewide procedural rules apparently varies, but the procedures are invariably internal to the court and are not matters filed in specific court files. The disqualifications are often in writing, but no explanation for the blanket disqualification is included even in these internal documents. This court has never seen an occasion when a judge provided a public written explanation of this sort for a blanket disqualification. It has certainly never seen an order comparable to this one filed in a specific court file.

A judge’s decision to disqualify himself or herself on a blanket basis must be left to that judge’s own sound judgment. This court has no authority to review such a decision. In the usual circumstance where the blanket disqualification is handled by a list internal to the circuit court, there is no rendered order for this court to review within its constitutional .jurisdiction. If such a decision is to be reviewed, it would seem to be a matter that might be more appropriately addressed by the Judicial Qualifications Commission.

This case, of course, does not involve a disqualification based on a client’s representation by a close friend of the trial judge who occasionally comes before the court. Instead, it ■ involves the division chief in charge of all of the public defenders who appear before Judge Sheehan. That fact did not prohibit Judge Sheehan from deciding that her impartiality might reasonably be questioned because she had a personal bias or prejudice concerning this lawyer. It does, however, mean that the decision to disqualify affects the administration of justice in that division and intrudes upon the administrative authority of the Public Defender and the Chief Judge. It seems to us that such a decision should be made with extraordinary care and with some communication and coordination with the Public Defender and the Chief Judge. Nothing in this record suggests this occurred in this case. Indeed, the decision has the flavor of one made in a moment of frustration and exhaustion. We will not and cannot review Judge Shee-han’s decision to disqualify herself, but we would encourage her to revisit this decision when she has a better opportunity to make a deliberate and thoughtful decision.

III. FILING THIS PERSONAL EXPLANATION IN A COURT FILE

Although we have no authority to review a circuit judge’s decision to disqualify herself from all cases involving a specific attorney, we conclude that we do have the power to strike impertinent or scandalous matter placed in a court file by a circuit court judge. Florida provides very broad immunity from suits for libel and slander relating to matters stated in court flies. See Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So.2d 380, 383-84 (Fla.2007). Thus, when impertinent or scandalous information is placed in a court file, the party harmed by the information has no right to seek recourse in a separate action. In lieu of such legal action, when scandalous matter is filed in a court file by a lawyer or a litigant, the rules of procedure allow a party to file a motion to strike the matter from the record. See Fla. R. Civ. P. 1.140(f). For obvious reasons, the rule does not govern the very rare occasion where the scandalous matter is filed by the judge.

There can be no question that the explanation provided in the challenged order was totally unnecessary to grant the motion to disqualify and was equally unnecessary to accomplish a blanket disqualification. No law authorizes this filing. The affected attorney and the affected office of the Public Defender have no recourse by appeal. Although we do not conclude that the order is the equivalent of a disciplinary order by the supreme court, we understand why Judge Northcutt can reasonably reach. that view in his concurrence. It certainly affects the reputation of an attorney and the administration of the office of the Public Defender without any process, much less due process. We conclude that the filing of this order in the trial court file departed from the essential requirements of the. law, resulting in injury that cannot be repaired by any subsequent appeal. Accordingly, we grant the petition to the extent that this order shall be stricken from the record. Judge Sheehan may replace it with an order that simply grants the motion to disqualify.

Petition for writ of certiorari granted.

KHOUZAM, J., Concurs.

NORTHCUTT, J., Concurs with opinion.

NORTHCUTT, Judge,

Concurring.

I agree with the majority opinion with one exception. In my view, Judge Shee-han’s order violated clearly established principles of law by encroaching upon the supreme court’s exclusive constitutional authority to discipline attorneys.

To be sure, a court has inherent authority to control the proceedings in the case before it, and this may include publicly criticizing and even sanctioning an attorney for misbehavior in that case. Moreover, given Judge Sheehan’s acknowledged bias against this attorney, she could not have been faulted for granting the motion for disqualification in the ease before her or, for that matter, taking administrative steps necessary to recuse herself from the attorney’s cases generally.

But it was quite another matter for the judge to place on the public record her conclusions regarding the attorney’s supposed overall professional incompetence and misconduct “based upon [the attorney’s] actions and inactions in this Division over the past month” and based on the attorney’s alleged “widespread reputation” during her ten-year tenure. Relying on some unspecified “information available to the court,” and without affording the attorney notice of the allegations against her or an opportunity to challenge them, Judge Sheehan punished the attorney for her alleged misconduct by banning her from the judge’s courtroom.

Regulating conduct of members of the Florida Bar is absolutely and exclusively within the jurisdiction of the Florida Supreme Court, not an individual circuit judge. This authority is granted in article V, section 15, of the Florida Constitution, which provides that “[t]he supreme court shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted.” It is further reflected in rule 3-3.1, Rules Regulating the Florida Bar, which describes the administration of the “exclusive jurisdiction of the- Supreme Court of Florida over the discipline of persons admitted to the practice of law.”

The self-evident nature of this fundamental principle perhaps accounts for the fact that few Florida cases have addressed a situation in which a judge usurped the supreme court’s exclusive power. Ms. Holt invokes a line of Ohio cases to support her view that Judge Sheehan’s order exceeded her jurisdiction. For example, in State ex rel. Buck v. Maloney, 102 Ohio St.3d 250, 809 N.E.2d 20, 23 (2004), the Ohio Supreme Court held that an attorney who was prohibited by a judge from serving as counsel of record in any new case that arose before the court presented a meritorious petition for writ of prohibition. Citing provisions of the Ohio Constitution, the court explained that the judge lacked authority to issue a disciplinary rule limiting the ability of certain attorneys to practice their profession; rather, attorney discipline and governance of the practice of law are exclusively the province of the state supreme court. Id. at 22. Among others, the Maloney court relied on the case of State ex rel. Jones v. Stokes, 49 Ohio App.3d 136, 551 N.E.2d 220 (1989), in which an appellate court issued a writ of prohibition after a municipal judge ordered the legal aid director not to assign a particular attorney to certain courtrooms based on the judge’s observation of the attorney's allegedly unethical and unprofessional conduct. The Stokes court noted that “this broad sanction goes beyond disqualification or mere regulation of the conduct of counsel in a particular proceeding,” id. at 223, again reiterating that attorney discipline must be meted out by the supreme court, not by individual judges. And in 1975, this court, addressing whether a judge could pass judgment on the eligibility of a legal services attorney to represent clients in juvenile delinquency matters in his courtroom, held that “[n]o authorization, either state or federal, permits judicial inquiry into a client’s eligibility for representation in a Florida Court by an attorney who is a member of the Florida Bar in good standing who has been designated by the client.” State ex rel. T.J.M. v. Carlton, 314 So.2d 593, 594 (Fla. 2d DCA 1975). Rather, “Article V, § 15 of the Florida Constitution of 1968, vests the Supreme Court with exclusive jurisdiction to regulate the practice of law.” Id

Judge Sheehan’s order violated clearly established principles of law in that it purported to exercise authority that the Florida Constitution vests exclusively in the supreme court. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (noting that constitutional provision may constitute “clearly established law” for purposes of certiorari relief). I would issue a writ of certiorari and quash the order on that ground.

      . Ms. Holt, as the Public Defender, filed this petition because she views the order as an intrusion into her constitutional authority to select division supervisors. We conclude that she has standing to bring this action. In this context we also conclude that there is no need to disclose the identity of the attorney.

      . The supreme court's authority to discipline attorneys does not deprive trial judges and appellate judges of the authority to criticize attorneys in open court or in a published opinion for conduct that falls below the high standards of conduct and professionalism expected from professionals. Although there are rare occasions when judges must report attorneys to The Florida Bar, see Fla.Code Jud. Conduct, Cannon 3D(2), there are other times when a lawyer commits a minor violation or oversteps the bounds of professionalism within a particular case when a judge is not obligated to report the matter to The Florida Bar but may still publicly criticize the lawyer, not as a legal sanction, but as a prompt to encourage the attorney to maintain high standards in the future. This court occasionally will criticize even seasoned appellate attorneys when their advocacy in a particular case does not live up to their usual high standards of professionalism. See, e.g., McDaniel Ranch P'ship v. McDaniel Reserve Realty Holdings, LLC, 100 So.3d 120 (Fla. 2d DCA 2012). The order challenged in this case, however, is not a prompt; it is scandalous comment having no place in a court record.


source: Caselaw Access Project

author: SLEET, Judge.

license: Public Domain

text:
    John T. ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2306.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2013.

      Howard L. Dimmig, II, Public Defender, and Ivy R. Ginsburg, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   SLEET, Judge.

John Adams appeals his judgment and sentence for attempted robbery following a jury trial. Because we hold that the trial court did not commit fundamental error when it denied the jury’s request to see all transcripts of the testimony of the witnesses without informing the jury of its right to seek a read-back of trial testimony, we affirm.

I. Background

The State charged Adams with robbery by sudden snatching, a third-degree felony. See § 812.131, Fla. Stat. (2011). Allegedly, Adams attacked the victim outside of a bar at 2:00 a.m. and stole the victim’s $200 necklace. Adams maintained that the victim grabbed his crotch and that he retaliated by punching the victim in the chest. According to Adams, the necklace fell off the victim and Adams used it as a weapon to ward off the victim’s friend who threatened Adams with a box cutter.

At trial, three eyewitnesses to the event testified: the victim, the victim’s friend, and Adams. According to the testimony of the victim and his friend, while walking to their car, Adams suddenly appeared and offered to sell marijuana to someone in the parking lot. When the victim and his friend tried to walk to their car, Adams punched the victim and threw him to the ground. The necklace fell off and Adams grabbed it and ran. The victim pursued Adams while his friend called the police. The victim and his friend denied having a box cutter and testified that the victim owned the necklace and that Adams was the assailant.

A St. Petersburg police officer testified that Adams was intoxicated, that he insisted he was the victim who was robbed of the necklace, and that he had the necklace in his front pocket when he was arrested. According to the officer, Adams never indicated that the victim’s friend had a weapon.

During cross-examination, Adams admitted that he lied to the police about being the victim and having a sales receipt for the necklace. He also admitted to eleven felony convictions.

II. Jury Questions

During jury deliberations, the jury sent out two notes. In its first note, the jury indicated that it “would like to see all the depositions and all the [sic] Officer Brick-er’s police report. Also transcripts of all the testimony.” The court assembled the State and the defense and informed them that “[w]hat the court will say to the jury when it brings it in is you have all the evidence that has been admitted in this trial. You must rely upon your individual and collective recollection of the evidence. There are no transcripts of testimony in existence.” Counsel for both parties did not have any objections to the court’s proposed answer. In fact, defense counsel seemed to agree that the law requires the proposed answer.

When the jury returned' to the courtroom, the court answered its question, saying:

I have sent back with you all the documents that were received into evidence. Depositions were not part of evidence, nor was Officer Bricker’s police report. Plus there are no transcripts of all the testimony in existence. Here’s the bottom line: You must use your individual and collective recollection of the facts. You must then determine the facts, and then you must apply the law that I’ve given you. So with that, I’ll have you return to the jury room for further deliberations.

The trial record does not indicate how long the jury deliberated before the second note, and neither, the State nor Adams indicated whether the interim time was significant. The jury’s second note asked: “What happens if we can’t come to a unanimous decision?” The court once again summoned counsel and indicated it would advise the jury that he would have to declare a mistrial. Again, neither the State nor the defense had any objections to the proposed answer. When the jury returned to the courtroom, the court advised them that it would have to declare a mistrial. Thereafter, the jury resumed its deliberations and returned with a guilty verdict on the lesser included offense of attempted robbery.

III. Analysis

On appeal, Adams argues that the trial court committed reversible error when it denied the jury’s request without informing it of the possibility of a read-back. There is no rule of criminal procedure providing that a jury may view a transcript of the proceedings. See Fla. R.Crim. P. 3.400(a) (omitting transcripts from the list of items a jury may view in the deliberation room). However, rule 3.410 provides that a trial court may, in its discretion, have portions of the trial testimony read back to the jury upon request. A trial court has wide discretion over whether to read back testimony. Hazuri v. State, 91 So.3d 836, 841 (Fla.2012); Avila v. State, 781 So.2d 413, 415 (Fla. 4th DCA 2001). Nonetheless, a trial court “may not mislead a jury into believing that a read-back was prohibited.” Hazuri, 91 So.3d at 843. The Florida Supreme Court has adopted the following two rules to be applied by a court when responding to a jury request for transcripts: (1) a trial judge should not use any language that would mislead a jury into believing that read-backs are prohibited and (2) when denying a request for transcripts, the trial judge is to inform the jury of the possibility of a read-back. Id. at 846; see also State v. Barrow, 91 So.3d 826, 834 (Fla.2012).

This case is distinguishable from Hazuri and Barrow where the defense objected and specifically sought to have the trial court advise the jury of the right to request a read-back. See Hazuri, 91 So.3d at 839; Barrow, 91 So.3d at 831. Here, defense counsel did not object, but agreed to the trial court’s proposed response and thereby failed to preserve any possible error for appellate review. See Rodas v. State, 967 So.2d 444, 446 (Fla. 4th DCA 2007) (“The general rule is that a reversal in a criminal case must be based on a prejudicial error that was preserved by a timely objection in the trial court.”). Although Adams does not argue that the error was fundamental error, we consider whether the purported error is' of a fundamental nature because it is an appellate court’s “unrenunciable judicial duty” to correct fundamental error. Bain v. State, 730 So.2d 296, 302 (Fla. 2d DCA 1999), called into doubt on other grounds by, State v. Jefferson, 758 So.2d 661, 664 (Fla. 2000). Thus, the threshold issue is whether the trial court’s failure to inform the jury of the possibility of a read-back constituted fundamental error. See Delestre v. State, 103 So.3d 1026, 1028 (Fla. 5th DCA 2012).

Fundamental error is “error that ‘reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Brooks v. State, 762 Sd.2d 879, 899 (Fla.2000) (quoting McDonald v. State, 743 So.2d 501, 505 (Fla.1999)). Moreover, error is fundamental only if it “goes to the very heart of the judicial process” and “extinguishes a party’s right to a fair trial,” such that it results in a miscarriage of justice. Martinez v. State, 933 So.2d 1155, 1159 (Fla. 3d DCA 2006).

The Florida Supreme Court has cautioned that “[t]he doctrine of fundamental error should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Smith v. State, 521 So.2d 106, 108 (Fla.1988). The Fifth District has previously stated that “[e]ven if a court’s failure to inform the jury of its right to request a read-back in a case ... were error, it is hard to conceive that it would be fundamental error.” Frasilus v. State, 46 So.3d 1028, 1031 (Fla. 5th DCA 2010). This reluctance to find fundamental error is to discourage “the creation of ‘gotchas’ whereby the defense is allowed to sit on its rights and say nothing until after it sees whether the jury returns an adverse verdict.” Hendricks v. State, 34 So.3d 819, 830 (Fla. 1st DCA 2010) (quoting Jones v. State, 571 So.2d 1374, 1376 n. 3 (Fla. 1st DCA 1990)); see also Sailor v. State, 816 So.2d 182, 184 (Fla. 1st DCA 2002) (noting that the contemporaneous objection rule was designed to prevent the type of “gamesmanship” that occurs when “a party waits to see if the jury renders a favorable verdict while the party withholds a claim of error in the process”). Thus, an error of omission in jury instructions is fundamental only when “the omission is pertinent or material to what the jury must consider in order to convict.” State v. Delva, 575 So.2d 648, 645 (Fla.1991).

In Delestre, the trial court was confronted with an almost identical request from the jury. 103 So.3d at 1027. Although the Delestre jury did not request depositions and police reports, it specifically requested transcripts of “all testimony.” Id. As in this case, defense counsel agreed .that the court should advise the jurors that it “was not going to have all testimony read back but they were to rely upon the collective memory of the jury in determining what the testimony was.” Id. The Fifth District affirmed Delestre’s convictions and sentences on appeal.

It is difficult to conceive that the trial court’s failure to inform the jury of its right to a read-back of testimony amounted to fundamental error in this case. Rather than arguing that the jury could have been confused about the facts and needed a read-back of testimony, the defense affirmatively agreed with the court’s responsive instructions. After the second jury note, it may have appeared to Adams that the trial court would have to declare a mistrial, which may have been more appealing to him than asking the court to allow the jury to review the testimony. Therefore, we hold that the court’s failure to instruct the jury on its right to request a read-back was not fundamental error in this case.

We also note that Adams’ reliance on LaMonte v. State, 145 So.2d 889 (Fla: 2d DCA 1962), is misplaced. As explained in Frasilus, when this court issued the La-Monte decision in 1962, “section 919.05, Florida Statutes, by its express terms, made a read-back mandatory, upon a jury’s request.” 46 So.3d at 1032. Section 919.05 was ultimately repealed in light of the adoption of the Florida Rules of Criminal Procedure and was superseded by rule 3.410. The legislature removed the mandatory language in 1972; according to the committee note, the purpose of the change was to make the rule discretionary. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 116 (Fla.1972); see also Frasilus, 46 So.3d at 1032.

Accordingly, we affirm.

Affirmed.

VILLANTI, J., Concurs.

KELLY, J., Concurs in result only.


author: VILLANTI, Judge.

text:
    B.K., Appellant, v. S.D.C., Appellee.
    No. 2D12-168.
    District Court of Appeal of Florida, Second District.
    Oct. 11, 2013.

      Matthew Scott Toll of Matthew S. Toll, P.A., Cape Coral, for Appellant.
    Mary C. Evans of Law Office of Mary C. Evans, P.A., Fort Myers, for Appellee.
   VILLANTI, Judge.

The father, B.K., seeks review of the final judgment of paternity as to the minor child, K.B.K. He specifically challenges the circuit court’s imputation of income to him under section 61.30(2)(b), Florida Statutes (2012), and calculation of child support arrearage. We affirm the circuit court’s determination regarding imputed income without comment; however because the court made a mathematical error when it calculated the child support ar-rearage, we reverse and remand for the circuit court to correct the error. We also remand the mother, S.D.C.’s, motion for appellate attorneys’ fees for the circuit court to consider her entitlement, and amount, under section 742.045, Florida Statutes (2012).

Shortly after KB.K’s birth, B.K. filed a petition to establish paternity. Following mediation, both S.D.C. and B.K. sought an award of child support in the circuit court. In the final judgment of paternity, the circuit court found that S.D.C. was entitled to child support and awarded her an ar-rearage based on its determination and B.K’s previous support payments. However, the circuit court made a mathematical error when it calculated the amount of the child support arrearage at $4050. Based on the findings in the final judgment, the arrearage should have totaled $3050.

S.D.C. argues that B.K. failed to preserve this error for appellate review by electing not to file a motion for rehearing. While other district courts have required parties complaining on appeal about inadequate findings in dissolution cases to bring the alleged defect to the trial court’s attention in a motion for rehearing in order to preserve the issue for appeal, this court has not yet decided the preservation issue in the broader context. Esaw v. Esaw, 965 So.2d 1261, 1265 n. 1 (Fla. 2d DCA 2007). However, we previously declined to extend this line of reasoning to claims of mathematical error appearing on the face of a final judgment. See Smith v. Smith, 39 So.3d 458, 459-60 (Fla. 2d DCA 2010) (reversing a mathematical error apparent on the face of the final judgment); Parker v. Parker, 976 So.2d 104,105 (Fla. 2d DCA 2008) (reversing an award based on a mathematical error as not supported by competent, substantial evidence); Martin v. Martin, 923 So.2d 1236, 1239 (Fla. 1st DCA 2006) (noting that “scrivener’s errors and miscalculations must be corrected on remand”); Doyle v. Doyle, 789 So.2d 499, 501 (Fla. 5th DCA 2001) (“[Notwithstanding the trial court’s wide discretion in dissolution matters, this court must correct mathematical errors made by the trial court.”). Here, it is clear from the final judgment that the circuit court intended to calculate the arrearage based on a finite monthly award of $410 for child support, and that according to the court’s determination of B.K’s historical support payments the arrearage should have totaled $3050, not $4050. Because the imposition of the extra $1000 is not supported by competent, substantial evidence, we reverse and remand for the court to correct its mathematical error.

We now turn to S.D.C.’s timely filed motion for appellate attorneys’ fees and costs. Section 742.045 does not expressly authorize an award of appellate attorneys’ fees in paternity actions. But, when section 742.045 was enacted in 1991, it mirrored the attorneys’ fees provision of section 61.16, Florida Statutes (1991). At that time, Florida courts interpreted section 61.16 to allow for appellate attorney fees even though it contained no such express language. See Bryan v. Bryan, 342 So.2d 858 (Fla. 2d DCA 1977); Thornton v. Thornton, 433 So.2d 682, 683-84 (Fla. 5th DCA 1983); Baucom v. Baucom, 397 So.2d 345 (Fla. 3d DCA 1981); Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976); Ludemann v. Ludemann, 317 So.2d 860 (Fla. 4th DCA 1975). In 1994, the legislature codified this case law by amending chapter 61 to be consistent therewith. See Ch. 94-169, § 1, at 1039, Laws of Fla. With or without the amendment it is apparent to us that this same case law, for the sake of consistency and logic, should be applied to allow appellate fees under section 742.045, and we now so hold. Not to do so would likely run afoul of equal protection concerns. See M.J.I. v. A.J.K., 55 So.3d 732, 733 (Fla. 2d DCA 2011) (Altenbernd, J., concurring) (“Under any level of scrutiny, it is not obvious to me that parents of illegitimate children should be treated differently than parents of legitimate children when it comes to the rules for awarding attorney’s fees on appeal in custody disputes.”). For reasons further outlined below, we certify conflict with sister district court holdings to the contrary.

In Starkey v. Linn, 727 So.2d 386, 388 n. 3 (Fla. 5th DCA 1999), the Fifth District based its determination that section 742.045 does not provide for appellate attorney’s fees on the “conspicuous absence of authority to award appellate fees” when compared with section 61.16. See also Gilbertson v. Boggs, 743 So.2d 123, 128 (Fla. 4th DCA 1999). However, “the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute.” Seagrave v. State, 802 So.2d 281, 290 (Fla.2001) (quoting Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996)) (internal quotation marks omitted). Therefore, in enacting section 742.045, the legislature is presumed to have known and approved of the judicial construction of section 61.16 to include appellate attorneys fees. McPherson v. Bittner, — So.3d -, 2012 WL 5232293, 37 Fla. L. Weekly D2519 (Fla. 4th DCA Oct. 24, 2012) (Warner, J., concurring). Had the legislature intended the statutes to be interpreted differently, it would have expressed such an intent in enacting section 742.045; instead it chose to mirror the language of section 61.16. Hence, we hold that an award of appellate attorneys’ fees may be obtained under section 742.045.

We strike the motion for costs without prejudice to S.D.C. filing a motion in the circuit court in accordance with Florida Rule of Appellate Procedure 9.400(a). However, we remand the motion for appellate attorneys’ fees to the circuit court for the circuit court to consider S.D.C.’s need and B.K’s ability to pay. In doing so, we certify conflict with Starkey and Gilbert-son.

Affirmed in part; reversed in part; remanded with instructions; conflict certified.

LaROSE and MORRIS, JJ., Concur.


author: PER CURIUM.

text:
    Tonya BANKS, Appellant, v. ALLEGIANT SECURITY/ Zurich American Ins. Co., Appellees.
    No. 1D13-1418.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.

      Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIUM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying Claimant’s pro se request for a continuance of the final hearing to allow her additional time to seek alternate representation. Because the JCC provided an insufficient basis in the final compensation order to determine whether the correct rule of law was followed, we reverse.

Sometime after filing a petition for benefits (PFB) and completing a pretrial stipulation on Claimant’s behalf, Claimant’s former attorney filed a motion to withdraw as attorney of record citing “irreconcilable differences” between himself and Claimant. The JCC granted the attorney’s motion, and confirmed the date and time of the previously noticed final hearing to take place in approximately seven weeks. Along with a copy of the order, Claimant was sent a letter by the office of the JCC recommending that she “seek representation as soon as possible” and advising her that she must attend the final hearing either by herself or, with her attorney, if then represented.

At the final hearing, Claimant appeared without counsel. She stated that she had spoken to her former attorney that morning, and that there had been a “misunderstanding” and “miscommunication.” Nevertheless, Claimant acknowledged that she understood her former attorney no longer represented her. Moreover, she confirmed that she had looked for another attorney without success. Based on advice given her that morning by her former attorney, Claimant requested a postponement, or continuance, of the final hearing to allow her an additional two weeks to find an attorney. The attorney for the Employer/Carrier (E/C) objected to any continuance on the ground that Claimant had been previously notified of the need to find new counsel for the hearing.

In response to Claimant’s ore tenus request for a continuance, the JCC asked Claimant questions concerning the circumstances giving rise to the need for the continuance, but only to the extent of determining that Claimant had looked for another attorney without success. It is clear from the discussion on the record that the JCC’s primary concern regarding any continuance was meeting the time requirements set forth in the procedural provisions of section 440.25, Florida Statutes (2012). Subsection 440.25(4)(d) requires that the final hearing be held within 210 days from the filing of the PFB. As the JCC explained to Claimant at that time, the timeframes under this statute established a final hearing date deadline in this case only two weeks from the scheduled hearing date. Although Claimant stated at the hearing that she could find an attorney within two weeks, the JCC expressed doubt in light of Claimant’s apparent lack of success in finding an attorney in the time that had elapsed since the withdrawal of her former attorney. Ruling on the record, the JCC then denied Claimant’s request for a continuance “due to those statutory time constraints.” The final hearing proceeded with the Claimant appearing on her own behalf. The attorney for the E/C conducted no cross-examination of Claimant and presented no live witnesses.

Following the final hearing, the JCC entered a final compensation order denying Claimant the benefits claimed in the PFB. In the final compensation order, the JCC reiterated the facts surrounding Claimant’s request for a continuance and concluded that he had denied the request “based on the statutory requirement that a hearing be held within 210 days of the filing of a petition, and finding that the [C]laimant had ample notice of the date of the hearing and of the nature of the hearing....” In this appeal, Claimant challenges the denial of her request for continuance on the following grounds: (1) the JCC committed reversible error by applying an incorrect rule of law; (2) the JCC abused his discretion; and (3) the statute, if correctly interpreted by the JCC as establishing inflexible time requirements, violates her First Amendment rights and her right of due process under the federal Constitution.

Our review of an erroneous application of the law is de novo. Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). Application of an incorrect rule of law is reversible error. Id. See also, Houck v. Lee County Bd. of County Comm’rs, 995 So.2d 1102, 1103 (Fla. 1st DCA 2008) (holding reversal and remand to be appropriate where JCC applied incorrect standard to permanent total disability claim); Cromartie v. City of St. Petersburg, 840 So.2d 372, 373 (holding failure to apply correct legal principle, or provide sufficient basis to determine whether appropriate legal principles have been followed, is ground for reversal). In light of findings in the final compensation order, as well as the record transcript, it would be difficult to rule out that the JCC relied heavily, if not exclusively, on the statutory time-frames in making his ruling on the request for a continuance. The timeframes established in section 440.25, however, are neither inflexible nor inviolable. Subsection 440.25(4)(d) specifically grants a claimant the power to “waive the timeframes within ... section [440.25] for good cause shown.” There is nothing in the record or final compensation order to suggest that the JCC recognized or considered that the timeframes — far from being invariables in the analysis — were subject to waiver by Claimant upon ‘'good cause shown.”

Even assuming that the JCC’s determination was not based on an inflexible application of the time requirements of section 440.25, we would still be compelled to reverse the denial of a continuance in this case. Subsection 440.25(4)(b) specifically provides that “continuances [of final hearings] may be granted only if the requesting party demonstrates to the judge of compensation claims that the reason for requesting the continuance arises from circumstances beyond the party’s control.” Under the clear statutory language of this subsection, the .correct rule of law to determine the appropriateness of a continuance of a final hearing is whether the need for a continuance “arises from,” meaning there is a sufficiently compelling causal relationship, to “circumstances beyond the control of the party.” The JCC here made no reference to “circumstances beyond Claimant’s control” at any time during the hearing or in his final compensation order, and made no efforts to determine if Claimant’s need for a continuance emanated from circumstances over which she had no meaningful control. There are no specific findings establishing the reason for Claimant’s inability to obtain alternate representation by the time of the final hearing — let alone whether the reason may have arisen from circumstances beyond her control. Although the JCC found that Claimant had “ample notice” of the final hearing date and had looked for another attorney, without the proper context of other findings related to the reason for the request for a continuance, these findings do little to answer the question of whether the reason arose from “circumstances beyond Claimant’s control.” The final compensation order, therefore, must be reversed and remanded because the JCC failed to provide a sufficient basis for this court to determine whether he applied the appropriate rule of law in denying Claimant’s request for a continuance.

In light of our finding of reversible error requiring the JCC to apply the correct rule of law upon remand, it is arguably unnecessary to determine whether the denial of a continuance appealed in this case also constituted an abuse of discretion. On the other hand, it should be noted that the actual grant of a continuance under subsection 440.25(4)(d) is still discretionary upon application of the correct rule of law. Consequently, discretionary factors, such as injustice to the moving party and prejudice to the opposing party, must also be considered by the JCC. Burgess v. Buckhead Beef Florida, 15 So.3d 25, 27 (Fla. 1st DCA 2009) Our review of the final compensation order here fails to reveal the type of case-specific determination identified in Burgess as necessary to show no abuse of discretion in the denial of a motion to continue.

Finally, Claimant challenges as unconstitutional any interpretation of section 440.25 which holds that the statutory time-frames operate as inflexible restrictions on a request for a continuance. In light of our disposition of this appeal based on the JCC’s failure to make findings as required by the express statutory language permitting a claimant to waive the timeframes “upon good cause shown,” and to seek a continuance when the reason “arises from circumstances beyond the party’s control,” we find these arguments without merit.

REVERSED and REMANDED for further proceedings consistent with this opinion.

SWANSON and OSTERHAUS, JJ., concur.

WETHERELL, J., concurs in result only.


author: MAKAR, J.

text:
    Pamela SPIVEY, as personal representative of the estate of Nicklaus Ellison, deceased, Appellant, v. TEEN CHALLENGE OF FLORIDA, INC., a corporation Appellee.
    No. 1D12-4377.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.

      Bryan S. Gowdy and Jennifer Shoaf Richardson of Creed & Gowdy, P.A., Jacksonville; Helen W. Spohrer of Spohrer & Dodd, P.L., Jacksonville, for Appellant.
    Bejamin Jilek and Joshua Paul Welsh of Bush & Ross, P.A., Tampa, for Appellee.
   MAKAR, J.

In this appeal, Pamela Spivey, as personal representative of the estate of her son, Nicklaus Ellison, raises two issues. She claims the trial court erred in (a) granting the motion of Teen Challenge of Florida, Inc., to compel arbitration without holding an additional hearing that she first requested in a motion for reconsideration; and (b) enforcing the arbitration agreement despite her claims it is unenforceable and in violation of her rights under the due process and freedom of religion clauses of the United States and Florida Constitutions. For the reasons below, we affirm.

I.

Teen Challenge operates residential facilities that assist young men in overcoming addiction through the application of biblical principles. On March 2, 2011, Nicklaus — then nineteen years old — enrolled in a year-long program at Teen Challenge’s substance abuse facility in Pensacola, Florida, signing several documents, including the arbitration agreement at issue, which provides in pertinent part:

The undersigned parties accept the Bible as the inspired Word of God. They believe that God desires that they resolve their disputes with one another within the Church and that they be reconciled in their relationships in accordance with the principles stated in First Corinthians 6:1-8, Matthew 5:23-24, and Matthew 18:15-20. Accordingly, the undersigned parties hereby agree that, if any dispute or controversy that arise [sic] out of, or is related to this agreement is not resolved in private meetings between the parties pursuant to Matthew 5:23-24 and 18:15, then the dispute or controversy will be settled by biblically based mediation and, if necessary, legally binding arbitration, in accordance with the Rule[s] of Procedure for Christian Conciliation (rules) of the Association of Christian Conciliation Services (current rules available and incorporated by this reference). The undersigned parties agree that these methods shall be the sole remedy for any dispute of [sic] controversy between them and, to the full extent permitted by applicable law, expressly waive their right to file a lawsuit in any civil court against one another for such disputes, except to enforce an arbitration decision, or to enforce this dispute resolution agreement. Any mediated agreement or arbitrated decision hereunder shall be final and binding, and fully enforceable according to its terms in any court of competent jurisdiction.

Nicklaus also signed a waiver, which stated:

I ... understand that I have civil rights [for] ... exercising the religion of my choice. Teen Challenge is an evangelical Christian discipleship ministry for people with life-controlling problems. As such, I realize and submit to the ministry’s expectations to attend Christian religious activities coordinated by the ministry ... I fully understand my rights and what I am waiving.

On May 28, 2011, approximately two months after Nicklaus had enrolled, he violated program rules. As a result, Ms. Spivey was told by Teen Challenge’s staff that Nicklaus was being “discharged” from the program; Nicklaus was given all his belongings and he left for his mother’s home in Tennessee. Shortly thereafter, he was incarcerated, apparently due to a probation violation in that state. Though facing approximately one year of jail time, he was able — with the help of his mother — to get an agreement with Tennessee authorities that allowed his release so he could give the Teen Challenge program in Florida another try.

Nicklaus then returned to the Pensacola facility, but soon relapsed by obtaining and ingesting over-the-counter cough medicine, a second violation of Teen Challenge’s rules. Rather than be expelled, Nicklaus was transferred in July 2011 to Teen Challenge’s Jacksonville facility, a move Ms. Spivey had requested. Because he was considered an internal transfer from one Teen Challenge facility to another, he was not asked to fill out new paperwork or a new arbitration agreement; the existing arbitration agreement was sent to the Jacksonville facility.

Sadly, Nicklaus’s time at the Jacksonville facility was tumultuous and fleeting. On August 19, 2011, the Jacksonville staff noted that Nicklaus “appeared to be intoxicated upon return from [a] work crew” resulting from ingesting cough syrup he had stolen from a Publix. Due to this third violation, he was dismissed later that day and transported by staff to a local medical center; his dismissal was for thirty days and he was advised to contact Teen Challenge staff within seventy-two hours to discuss possible readmission to the program. He never returned. Instead, he apparently turned to the streets of Jacksonville where he was picked up and taken to a stranger’s residence at which he later died that night from multiple drug toxicity.

On March 19, 2012, Ms. Spivey sued Teen Challenge for wrongful death based on the program’s alleged negligence. Teen Challenge filed a motion to compel mediation/arbitration and to dismiss the complaint pursuant to section 682.03, Florida Statutes, asserting that there was no “substantial issue” precluding arbitration. On July 31, 2012, the trial judge conducted a hearing at which the parties argued their respective legal positions based on the affidavits and discovery responses filed in the case along with their legal memoranda.

In a detailed order, the trial court granted the motion to compel arbitration. The court found the treatment program was ongoing at the time of Nicklaus’s death, under the same terms and conditions the parties agreed to at the signing of the March 2011 agreement, and that Teen Challenge maintained Nicklaus’s enrollment even though he was at times suspended. The trial court also found that the arbitration agreement did not deprive a participant of due process or access to secular law and did not implicate Ms. Spi-vey’s First Amendment rights. Ms. Spi-vey moved for reconsideration, seeking an evidentiary hearing and raising additional grounds for the invalidity of the arbitration agreement. The trial court denied Ms. Spivey’s motion for reconsideration, reconfirming its initial holding that “no substantial issue was raised as to the continued existence of the original Arbitration Agreement from March 2, 2011 through August 19, 2011.” Ms. Spivey timely sought appellate review.

II.

We begin by noting that no issue, substantial or otherwise, exists regarding whether a valid and enforceable religiously-based arbitration agreement was entered between Nicklaus and Teen Challenge at the time he entered the program in March 2011. That said, the two issues we address are: (1) whether the trial court erred in denying Ms. Spivey’s motion for reconsideration, and (2) whether the trial court erred in enforcing the Teen Challenge arbitration agreement despite her personal constitutional objections.

A.

On the first issue, Ms. Spivey claims it was error to deny the request in her motion for reconsideration that an evidentiary hearing be held. The crux of her claim is that a disputed factual issue existed as to whether the arbitration agreement, though valid and enforceable when Nicklaus enrolled, continued to remain in force after he was dismissed from Teen Challenge’s program in Pensacola in May 2011. She says an evidentiary hearing was necessary to show that his dismissal terminated the arbitration agreement and that because Nicklaus signed no new arbitration agreement when he returned to Pensacola and was later transferred to Jacksonville, the trial court should not have ordered arbitration.

Florida arbitration law specifies when a trial court is to grant an application seeking to compel arbitration:

If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. If the court shall find that a substantial' issue is raised as to the making of the agreement or provision, it shall summarily hear and determine the issue and, according to its determination, shall grant or deny the application.

§ 682.03(1), Fla. Stat. (emphasis added). This Court and others have acknowledged that this statute requires an expedited hearing be held when a “substantial issue” has been raised regarding the making of an agreement. See Rowe Enters. LLC v. Int'l Sys. & Elec. Corp., 932 So.2d 537 (Fla. 1st DCA 2006); see also FL-Carrollwood Care Ctr., LLC v. Jaramillo, 36 So.3d 180, 182-83 (Fla. 2d DCA 2010); Crystal Motor Car Co. of Hernando, LLC v. Bailey, 24 So.3d 789, 791 (Fla. 5th DCA 2009); Curcio v. Sovereign Healthcare of Boynton Beach L.L.C., 8 So.3d 449, 450 (Fla. 4th DCA 2009); Travelers Ins. Co. v. Irby Constr. Co., Inc., 816 So.2d 829, 830 (Fla. 3d DCA 2002). This interpretation is based on the plain statutory language that the trial court “shall summarily hear” the matter if it finds a “substantial issue is raised as to the making of the agreement or provision” at issue.

At the outset, the trial court held an expedited hearing on Teen Challenge’s motion to compel arbitration, which included consideration of affidavits, legal memos, and argument of counsel, all of which was preceded by discovery. Based on the parties’ submissions and arguments, the trial court concluded that Nicklaus consented to arbitrate under a valid agreement, one that envisioned a twelve-month program in which he was enrolled. As to this temporal aspect of the program, the trial court found that the program appeared to be an “ongoing” one “under the same terms and conditions that the parties agreed to at the time of the signing of the agreement.” It also found that Teen Challenge maintained Nicklaus’s “enrollment even though he was on occasions suspended which apparently is not uncommon in that type of program.” The trial court concluded that Nicklaus “voluntarily consented to being transferred from Pensacola to Jacksonville as part of the same ongoing program.” It also con-eluded that the evidence presented appeared to show that “the intent of the parties was that this agreement would last throughout his enrollment into the Teen Challenge Program which continued by his acquiescence from Pensacola on through to Jacksonville.” These findings, contained in the order compelling arbitration, are supported by the record. Proper v. Don Conolly Constr. Co., Inc., 546 So.2d 758, 759-60 (Fla. 2d DCA 1989) (trial court “properly complied with the requirements of the- statute by summarily hearing the issue” via its review of documents, affidavit, and arguments of counsel).

In her reconsideration motion, Ms.-Spi-vey sought to create a substantial issue, not as to the making of the arbitration agreement, but as to its continued existence following Nicklaus’s suspension, though couching it as “whether there was a valid agreement to arbitrate in place.” For the first time, she sought an evidentia-ry hearing. In response, the trial court reviewed the parties’ supplemental submissions on an expedited basis (without a hearing) and concluded that “there was no substantial issue raised as to the continued existence of the original Arbitration Agreement from March 2, 2011 through August 19, 2011.” Consistent with the goal of prompt resolution of arbitration disputes, the trial court’s accelerated review ensured that Ms. Spivey’s motion could be ruled upon before expiration of the time for her to file an appeal. See Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 128 (Fla. 4th DCA 1982) (“Speedy resolution of disputes is the raison d’etre of arbitration. Once parties agree to arbitrate, it is essential that they have an easy and quick means to enforce their agreement to arbitrate.”)

We conclude that the trial court’s decision to deny the motion for reconsideration was proper. No substantial issue existed as to the making of the arbitration agreement, such that no evidentiary hearing was required. Nucci v. Storm Football Partners, 82 So.3d 180 (Fla. 2d DCA 2012). The motion for reconsideration sought to create a substantial issue as to the continuation of the original arbitration agreement, a factual determination that could have been left to the arbitrator, Gainesville Health Care Center, Inc. v. Weston, 857 So.2d 278, 288 (Fla. 1st DCA 2003), but which was adjudicated by the trial court without objection from the parties. Even if section 682.03(1) applied to this determination, the trial court’s conclusion that no substantial issue existed is supported by the record. Moreover, under these circumstances — with this degree of judicial attention paid to the parties’ contention on two occasions on an expedited basis followed by detailed written orders — an evidentiary hearing would have served no purpose; the trial court did not err in denying one, and its findings are supported by competent, substantial evidence.

B.

Next, Ms. Spivey contends that judicial enforcement of the arbitration agreement violates her rights under the due process and religion clauses of the United States and Florida Constitutions because the Rules of Procedure for Christian Conciliation are imbued with religious themes and require religious practices. We disagree.

Preliminarily, we note that Ms. Spivey does not argue that constitutional impediments bar the enforceability of the arbitration agreement between Teen Challenge and Nicklaus; indeed, nothing in the record suggests that Nicklaus did anything other than voluntarily agree to be bound by its terms, religious and non-religious alike. That was his decision to make. Ms. Spivey claims independently, however, that her own constitutional rights will be violated if she is required to comply with the Teen Challenge arbitration agreement and its Rules; she does not wish to proceed through an arbitration process .that invokes religious principles and (at léast facially) involves religious acts such as prayer.

But the law requires that Ms. Spi-vey stand in her son’s shoes and that she be bound by his decision, a principle that applies to wrongful death actions. See Laizure v. Avante at Leesburg, Inc., 109 So.3d 752, 762 (Fla.2013), approving, 44 So.3d 1254 (Fla. 5th DCA 2010). Our supreme court made this point unequivocally clear in stating as follows:

the nature of a wrongful death cause of action in Florida is derivative in the context of determining whether a decedent’s estate and heirs are bound by the decedent’s agreement to arbitrate. The estate and heirs stand in the shoes of the decedent for purposes of whether the defendant is liable and are bound by the decedent’s actions and contracts with respect to defenses and releases.

Id. at 762. Based on Laizure, it is likewise clear that Nicklaus’s estate, its personal representative, and its statutory heirs are each bound by the arbitration agreement, particularly in the context of wrongful death, the claim at issue here.

Next, we make two observations. First, we note that “[c]ourts are required to indulge every reasonable presumption in favor of arbitration recognizing it as a favored means of dispute resolution.” Am. Int’l Grp., Inc. v. Cornerstone Bus., Inc., 872.So.2d 333, 338 (Fla. 2d DCA 2004) (citing cases). This presumption extends to private religious arbitration, which is exceedingly common in our pluralistic religious society — most major religious denominations have some method of private dispute resolution within their domains, some going back hundreds of years. As one commentator notes, the “current and continued existence of religious arbitration in the United States is not disputed, as it has been utilized for decades within a variety of religious communities.” Amanda M. Baker, A Higher Authority: Judicial Review of Religious Arbitration, 37 Vt. L.Rev. 157, 157 (2012); see also Michael A. Helfand, Religious Arbitration and the New Multiculturalism: Negotiating Conflicting Legal Orders, 86 N.Y.U. L.Rev. 1231, 1242 (2011) (examining the “deferential treatment U.S. courts afford to religious arbitration awards and the institutional role religious arbitration plays in religious communities.”). Indeed, courts routinely uphold agreements to submit disputes to religious arbitration in the absence of fraud, duress, or corruption. See, e.g., Meshel v. Ohev Sholom Talmud Torah, 869 A.2d 343, 359-64 (D.C.2005) (applying D.C. Uniform Arbitration Act to synagogue, and reversing order dismissing action to compel arbitration before Beth Din); Jabri v. Qaddura, 108 S.W.3d 404, 412-14 (Tex.App.2003) (ordering Islamic arbitration to determine the enforceability of a marriage contract); Encore Prods., Inc. v. Promise Keepers, 53 F.Supp.2d 1101, 1111-13 (D.Colo.1999) (analyzing the Rules of Christian Conciliation under the Federal Arbitration Act, and granting a motion to dismiss on the basis that the parties agreed to arbitrate under the Rules); see also Ainsworth v. Schoen, 606 So.2d 1275, 1276 (Fla. 3d DCA 1992) (reversing summary judgment confirming an arbitration award because it was unclear whether the award was final, but recognizing that the parties “agreed to be bound by Jewish law”).

Second, we note that the arbitration agreement at issue in this case requires compliance with the Rules, which appear to be indistinguishable in almost every respect to those of secular arbitration organizations. The Rules consist of ten pages of single-spaced text covering every major aspect of standard secular mediation and arbitration processes. Boiled down to their essence, the Rules differ from those of secular groups only because of a scattering of religious elements added to solemnize the process and to promote and advance conciliation as a spiritual goal.

In this regard, Ms. Spivey on appeal raises a number of religious objections to the Rules; we address only those that have been preserved. Before doing so, we distinguish Ms. Spivey’s reliance on Shelley v. Kraemer, 334 U.S. 1, 68 S.Ct. 836, 92 L.Ed. 1161 (1948), by noting that ease involved the enforcement of a racially restrictive covenant against third parties who had not agreed to its terms, which contrasts with the arbitration agreement voluntarily entered between Nicklaus and Teen Challenge. This same distinction makes cases involving inmates’ forced participation in religious programs not pertinent. See, e.g., Inouye v. Kemna, 504 F.3d 705 (9th Cir.2007).

Turning back to the specific religious objections, Ms. Spivey first points to Rule 4, which states: “Conciliators [arbitrators] shall take into consideration any state, federal, or local laws that the parties bring to their attention, but the Holy Scripture (the Bible) shall be the supreme authority governing every aspect of the conciliation process.” (Emphasis added). We emphasize the word “process” because nothing in this provision suggests that the Bible is to provide decisive substantive guidance on principles of negligence, wrongful death or the collateral source rule, for examples. On its face, instead, Rule 4 envisions that secular laws are given consideration and that the Bible is to be the authoritative guide for shepherding a case through the arbitration process. That religious precepts will guide the arbitration process does not create a constitutional issue that would preclude enforcement of a voluntary agreement between private parties to arbitrate according to spiritual principles. Nicklaus and Teen Challenge were free to choose, as they did here, a religious process they deemed appropriate to resolve their disputes. Their doing so does not raise a concern that the resolution of their dispute would be inconsistent with any federal or state substantive law. Air Conditioning Equip., Inc. v. Rogers, 551 So.2d 554, 557 (Fla. 4th DCA 1989) (“Once the parties agree to submit to arbitration, the [Florida Arbitration Code] limits the authority of the court to interfere in the process prematurely.”).

Next, Ms. Spivey points to a provision in the Rules providing for prayer as a normal part of the mediation and arbitration process. She argues that, she, as personal representative, should not be forced to engage in a process involving a Christian prayer (even though she is a Christian) because to do so violates principles prohibiting governmentally-coerced religious acts. She asserts that her right to the free exercise of her personal religious beliefs is inalienable and cannot be waived, even in the context of her duties as a personal representative. In effect, she claims the legal right for her personal religious views to nullify and thereby trump the religious arbitration agreement into which Nieklaus and Teen Challenge voluntarily entered.

We note, however, that a personal representative generally cannot object that fulfilling the deceased’s wishes offends the religious sensibilities of the personal representative; personal representatives serve the estate’s interest, not vice-versa. See Kasmer v. Guardianship of Limner, 697 So.2d 220 (Fla. 3d DCA 1997) (personal representative, who objected on religious grounds to cremation, has a duty to administer estate according to decedent’s wishes). This obligation to fulfill the de-ceaseds’ wishes extends to the judiciary. See Morgenthaler v. First Atlantic Nat’l Bank of Daytona Beach, 80 So.2d 446, 452 (Fla.1955) (“There is no higher duty nor greater responsibility on the courts than that of seeing to it, in proper cases, that the will of the dead is honored.”). Because the role of the personal representative is to advance the deceased’s’ expressed desires, those unwilling or unable to fulfill this role must pass along their responsibilities to others. Kasmer, 697 So.2d at 220-21. As the Third District in Kasmer stated: “If the personal representatives cannot act in compliance with the will because of their religious views, they are free to resign or ask the probate court to appoint suitable individuals who can carry out the decedent’s wishes.” Id. at 221, n. 1. Based on this principle, if a decedent desires that his estate go to his synagogue, be used for the printing of Qu’rans, or be distributed only to heirs who believe in Jesus Christ, the role of the personal representative is an agnostic one: to fulfill the decedents’ express wishes. Under the law, Ms. Spivey must make a choice. She can be the personal representative of Nicklaus’s estate, but she cannot simultaneously forestall her duties and thwart the agreement of the deceased based on her personal religious objections.

This dispute, of course, is not over the terms of Nicklaus’s will. Rather, the question is whether Ms. Spivey’s obligation as personal representative is to stand in Nicklaus’s shoes and comply with an arbitration agreement that no one disputes Nicklaus voluntarily entered. As discussed above, the Florida Supreme Court in Laizure, has answered this question in the affirmative: Ms. Spivey is bound by Nicklaus’s decision to enter the Teen Challenge agreement. And it logically follows that she must comply (despite her religious objections) to that agreement or, as in Kasmer, resign and have a replacement appointed as personal representative.

We note that the Rules can be read to make prayer optional because they say that arbitration proceedings “normally include” opening and closing prayer. Whether that is the case does not detract from Ms. Spivey’s fundamental legal obligation to comply with the obligations of a personal representative. That Teen Challenge is willing to interpret its Rules to accommodate Ms. Spivey’s objection (by not requiring her to actively participate in praying) is laudable but does not alter the applicable legal principles.

III.

We find nothing in Florida or federal law suggesting that the trial court’s decision to require arbitration of the wrongful death claim under the Teen Challenge mediation/arbitration agreement and its Rules was other than wholly proper. Indeed, had the trial court determined that the arbitration agreement was unenforceable due to its religious nature, its action “could itself arguably constitute an impermissible entanglement” under religion clause jurisprudence. See Encore, 53 F.Supp.2d at 1113. For the foregoing reasons, we affirm the trial court’s orders compelling mediation/arbitration.

AFFIRMED.

BENTON and RAY, JJ., concur.

      . The Florida Arbitration Code was revised substantially in 2013, reflected in Chapter 2013-232, Laws of Florida, which eliminated these two sentences entirely. The new code, entitled the "Revised Florida Arbitration Code,” now provides • that when there is a dispute about whether an enforceable arbitration agreement exists the court shall proceed "summarily to decide the issue.” § 682.03(l)(b) & (2), Fla. Stat. (2013). The revised code "governs an agreement to arbitrate made on or after July 1, 2013.’,’ Id. § 682.013(1). It "does not affect an action or proceeding commenced or right accrued before July 1, 2013”, id. § 682.013(3), though— until 2016 — all parties to an agreement may agree to the revised code; if they do not, their "agreements shall be governed by the applicable law existing at the time the parties entered into the agreement.” Id. § 682.013(2). Thus, disputes such as the one raised here continue to be resolved under the preexisting law.

      . See, e.g., Caryn Litt Wolfe, Faith-Based Arbitration: Friend or Foe? An Evaluation of Religious Arbitration Systems and Their Interactions with Secular Courts, 75 Fordham L.Rev. 427, 437-40 (2006) (focusing on the dispute resolution systems of Judaism, Christianity, and Islam); see also Brief of Religious Tribunal Experts as Amici Curiae in Support of Petitioner, Hosanna-Tabor Evangelical Lutheran Church & Sch. v. Equal Emp’t Opportunity Comm'n, — U.S. -, 132 S.Ct. 694, 181 L.Ed.2d 650 (2012) (No. 10-553) (describing the "long religious tradition” of religious organizations having their own dispute resolution tribunals or processes that are "imbued with the unique values and judgments of the belief systems they support and enforce.”).

      .Emblematic of this point is the stated purpose of the Rules to “glorify God by helping people to resolve disputes in a conciliatory rather than an adversarial manner” by not only resolving "substantive issues” but also seeking reconciliation for persons who have been "alienated by conflict” in their lives. See Rules of Procedure for Christian Conciliation, ¶ 1.

      . Under Rule 38, arbitrators may "request or consider briefs or position papers that set forth the parties’ understanding of the legal, factual, or scriptural issues.”

      . Of course, a religious process might want to avoid practices that could run afoul of article I, section 3 of the Florida Constitution ("Religious Freedom”), which provides: "There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety.”

      . We note that arbitration — religious or otherwise — can create tensions in the context of family law (such as child custody), see, e.g., Wolfe, supra note 1, at 447 (discussing issues affecting faith-based arbitration in the family law context), but we are not faced with those types of public policy concerns here.

      . Rule 22 provides that a "mediation meeting will normally include: (1) an introduction and opening prayer ... and (9) closing comments and prayer.” Rule 34 provides that arbitration proceedings "shall be conducted according to the same format as mediation proceedings (see Rule 22), except as limited by these Arbitration Rules.”


author: PER CURIAM.. MAKAR, J.,

text:
    PLUM CREEK MARKETING, INC. ("PCM"), Plum Creek Timber Company, Inc. ("PCT"), Plum Creek Timberlands, L.P., ("PC Timberlands"), Thomas Reed ("Reed"), Jon Rashleigh ("Rashleigh") and Ben Dow ("Dow"), Appellants, v. WILLISTON TIMBER COMPANY, INC., Williston Trucking Company, LC, Pineearth Forestry, Inc. and Derby Gold Pine Shavings Company, Appellees.
    No. 1D13-3920.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.
    Christopher J. Greene and Joseph D. Pickles, of Purcell, Flanagan, Hay <& Greene, P.A., Jacksonville, for Appellants.
    Mike Piscitelli, of Vezina, Lawrence & Piscitelli, Fort Lauderdale, for Appellees.
   PER CURIAM..

Upon consideration of appellants’ response to the Court’s order of August 29, 2013, the Court has determined that the order on appeal is not within the scope of Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv). See Westwood One, Inc. v. Flight Express, Inc., 940 So.2d 1241, 1243 (Fla. 5th DCA 2006) (holding that order striking motion to compel arbitration on procedural grounds was not an appeal-able order). Accordingly, the appeal is dismissed.

ROBERTS and SWANSON, JJ., concur;

MAKAR, J., concurs with written opinion.

MAKAR, J.,

concurs with written opinion.

Because dismissal of their initial motion to compel arbitration was denied without prejudice on procedural grounds, appellants may choose to file a supplemental motion to compel arbitration with the necessary contracts (which they say in their initial brief has already been done); if that motion is denied on other than procedural grounds, appellants would be afforded appellate review of the order denying review. The language from Wegner v. Schillinger, 921 So.2d 854, 855 (Fla. 4th DCA 2006), that “Florida law does not authorize multiple motions to compel arbitration” is directed to situations where a litigant fails to promptly pursue appellate relief of the denial of an initial motion to compel arbitration on the merits and later makes additional attempts to institute efforts to compel arbitration. See Freedom Life Ins. Co. of America v. Wallant, 953 So.2d 16, 18 (Fla. 4th DCA 2007). Because appellants seek only to have their initial request to compel arbitration heard on the merits for the first time, I concur in dismissal.


author: PER CURIAM. MAKAR, J.,

text:
    Dan SOWELL, Bay County Property Appraiser, Appellant, v. STATE OF FLORIDA DEPARTMENT OF REVENUE In re the Matter of Certain Decisions of the 2012 Bay County Value Adjustment Board, Appellee.
    No. 1D13-2799.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.
    Loren E. Levy and Ana C. Torres, of The Levy Law Firm, Tallahassee, for Appellant.
    Nancy Terrel, General Counsel, Department of Revenue, Tallahassee, for Appel-lee.
   PER CURIAM.

DISMISSED.

ROBERTS and SWANSON, JJ., concur; MAKAR, J., concurs with written opinion.

MAKAR, J.,

concurs with written opinion.

The filing of a petition for mandamus, though entailing a separate filing and related expense, is available to the property appraiser to contest the Department’s position that its probable cause review is an agency investigation and not a final agency action subject to judicial review. Students for Online Voting v. Machen, 24 So.3d 1273, 1274 (Fla. 1st DCA 2009) (granting mandamus due to university’s “failure to perform its statutory duty to render the order.”). Whatever economic efficiency that might be gained in this case by resolving this issue now is outweighed by muddying the relatively clear doctrinal line that mandamus is the proper vehicle to advance the property appraiser’s legal position, if it chooses to do so.


author: PER CURIAM.

text:
    Louanna SPIVEY, Petitioner, v. HIALEAH HOSPITAL and Sedgwick CMS, Respondents.
    No. 1D13-2221.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.
    Date of Accident: August 18, 1989. Charles E. Bloom of Bloom, Kinnear & Renick, Miami, and Wendy S. Loquasto of Fox & Loquasto, P.A., Tallahassee, for Petitioner.
    Douglas W. Barnes of Eraclides, Gel-man, Hall, Indek, Goodman & Waters, LLP, Aventura, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is GRANTED, and the order of the Judge of Compensation Claims is QUASHED. See Torres v. Costco Wholesale Corp., 115 So.3d 1111 (Fla. 1st DCA 2013).

THOMAS, ROBERTS, and CLARK, JJ., concur.


author: WOLF, J.

text:
    Michael BOSSEN, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 1D13-2176.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.
    Rick A. Sichta and Susanne K. Sichta of Arnold and Sichta, Jacksonville, for Petitioner.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Respondent.
   WOLF, J.

Petitioner, Michael Bossen, seeks review of an order awarding him attorney’s fees for representing an indigent defendant pursuant to section 27.5304, Florida Statutes (2012). We find the lower court departed from the essential requirements of the law by finding the fee award was not confiscatory without first making a finding regarding the reasonable number of hours expended by petitioner. See Fletcher v. Justice Admin. Comm’n, 109 So.3d 1271, 1272 (Fla. 1st DCA 2013) (“When awarding fees pursuant to section 27.5304, the trial court is required to make a finding as to the reasonable number of hours expended by counsel in the case before it can determine whether a fee award would be confiscatory.”). We find it unnecessary to reach the other two issues raised by petitioner. See Fletcher, 109 So.3d at 1273. Therefore, we grant the petition for writ of certiorari, quash the fee award, and remand for reconsideration in light of this opinion.

PETITION GRANTED.

ROBERTS and MAKAR, JJ., concur.

       The Justice Administration Commission agrees that the trial court departed from the essential requirements of the law and that remand is appropriate.


text:
    BRANCH BANKING AND TRUST COMPANY, Appellant, v. STATE OF FLORIDA DEPARTMENT OF FINANCIAL SERVICES as Receiver for First Commercial Insurance Company and First Commercial Transportation and Property Insurance Company, Appellee.
    No. 1D13-104.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.
    Albert T. Gimbel, Thomas H. Bateman III, and Joseph B. Donnelly of Messer, Caparello & Self, P.A., Tallahassee; Daniel C. Brown, Carlton Fields, Tallahassee; Ben H. Harris, III and Mark R. King of Jones, Walker, Waechter, Poitevent, Car-rere & Denegre, L.L.P., Miami, for Appellant. .
    Aaron R. Wolfe, Theodore R. Doran, and Michael Kundid of Doran, Sims, Wolfe & Kundid, Daytona Beach; Robert V. Elias, Tallahassee, and Jody E. Collins, Doral, Florida Department of Financial Services, for Appellee.
   PER CURIAM.

AFFIRMED. The trial court has jurisdiction to enforce the stipulations reflected in the trial court’s Order Granting Entitlement to Attorneys’ Fees and Costs and Statutory Interest, as well as its Order Granting BB & T’s Motion to Stay Judgment and Setting the Amount of Bond.

WOLF, ROBERTS, and MAKAR, JJ, concur.


text:
    J.S., Appellant, v. S.R., Appellee.
    No. 1D13-2738.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.

      J.S., pro se, Appellant.
    No appearance for Appellee.
   WOLF, J.

Appellant, the father, appeals from an order on his motion seeking enforcement of a facilitated visitation agreement. The father argues the trial court’s modification of his visitation schedule, in the absence of pleadings requesting such modification, was a denial of due process. We agree. See Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003) (“It is well settled that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process.”).

We therefore reverse. The visitation schedule in place at the time the father filed his motion for enforcement is restored. See id.

REVERSED.

LEWIS, C.J., and MAKAR, J., concur.


text:
    Yolanda BANUCHI, Appellant, v. DEPARTMENT OF CORRECTIONS/Indian River Correctional Institute/State of Florida Division of Risk Management, Appellees.
    No. 1D12-3810.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    Richard A. Sicking, Coral Gables, Kelli Biferie Hastings of the Law Office of Kelli B. Hastings, PLLC, Orlando, and James Spears of the Law Office of James R. Spears, PLLC, Orlando, for Appellant.
    William H. Rogner and Matthew Troy of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation Claims (JCC) erred when he failed to appoint an expert medical advisor (EMA) on his own motion after it was brought to his attention that there was a material disagreement in the opinions of health care providers as to whether Claimant had reached maximum medical improvement— a disagreement that Claimant timely suggested was sufficient to invoke the JCC’s obligation to appoint an EMA on his own motion. Alternatively, Claimant argues that if the JCC did not err by failing to appoint an EMA on his own motion, then her constitutional rights to due process and access to courts have been denied. For the reasons that follow, we reverse the JCC’s order and remand this matter for further proceedings.

Factual Background

In September 2008, Claimant injured her left ankle in a compensable accident. In the summer of 2011 a dispute arose as to whether Claimant was entitled to additional temporary partial disability benefits, and Claimant filed a petition for benefits asking for same on August 2, 2011.

Thereafter, on December 19, 2011, Claimant filed a notice of conflict in the medical opinions, asking that the JCC, on his own motion, appoint an EMA. Specifically, Claimant alleged there was a conflict regarding when she reached maximum medical improvement and what diagnostic tests and treatment or therapy were required to treat her compensable injury. By order of January 4, 2012, the JCC treated Claimant’s notice “as the Claimant’s Motion to Appoint Expert Medical Advisor” and granted the motion, thereby making Claimant “responsible for all costs associated with the EMA.” Claimant filed a motion for rehearing stating she did not file a motion for appointment of an EMA; rather, she specifically asked that the JCC do so on his own motion. The JCC denied the motion for rehearing. At the merits hearing, Claimant reiterated her argument that she had not requested appointment of an EMA; rather, she notified the JCC of a disagreement and asked for the appointment of an EMA on the JCC’s own motion, given the disagreement in medical opinions. As before, the JCC rejected the argument, and once again found the notice to be Claimant’s request for the appointment of an EMA.

The August 2011 petition for benefits was addressed at a March 19, 2012, merits hearing, without the benefit of an EMA opinion. At the conclusion of that hearing, the JCC denied Claimant’s entitlement to the claimed temporary partial disability benefits. This appeal followed.

Legal Background

Section 440.13(9), Florida Statutes (2008), is entitled “Expert Medical Advis- or.” The stated role of the EMA is “to assist the ... judges of compensation claims within the advisor’s area of expertise.” § 440.13(9)(a), Fla. Stat. (2008). The circumstances which dictate the appointment of an EMA are those instances in which “there is a disagreement in the opinions of the health care providers.” § 440.13(9)(c), Fla. Stat. In that instance, “the [JCC] shall, upon his or her own motion ..., order the injured employee to be evaluated by an [EMA].” Id. Further, “[i]f a[JCC], upon his or her own motion, finds that an [EMA] is needed to resolve the dispute, the carrier must compensate the advisor for his or her time.” § 440.13(9)(f), Fla. Stat.

This Court has not yet addressed the JCC’s mandatory statutory obligation to appoint an EMA when he or she becomes aware of a disagreement in the “medical evidence supporting the employee’s complaints or the need for additional medical treatment, or if two health care providers disagree that the employee is able to return to work”—and where, as here, it is clear that the party seeking the benefit of the appointment of an EMA has preserved the issue for appellate review. § 440.1S(9)(c), Fla. Stat. We do so now.

Analysis

Section 440.18(9)(c), by its terms, allows an employee, an employer, or a carrier to notify the JCC of a disagreement in the opinions of health care providers sufficient to warrant the appointment of an EMA. Upon notice and the presentation of evidence sufficient to manifest such a disagreement, the JCC is required to order, on his or her own motion, the employee be evaluated by an EMA. If the parties do not provide notice to the JCC, it is unrealistic, given a JCC’s caseload and his role of deciding the disputes and issues properly pled by the parties, to expect a JCC will become aware of a disagreement in any given case at a time when the evaluation can be done early enough so as not to unnecessarily delay the litigation process. Here, Claimant timely put the JCC on notice of the disagreement in medical opinions and asked the JCC to appoint an EMA on the JCC’s own motion, given this disagreement. The JCC determined that a disagreement sufficient to warrant the appointment of an EMA indeed existed. The JCC’s error was reading Claimant’s notice to be a request by Claimant that an EMA be appointed.

Statutory interpretation is a question of law, reviewed de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004) (holding statutory interpretation is subject to de novo review). Interpretation of written pleadings is also reviewed de novo. See Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000) (restating that construction of written instruments is reviewed de novo). Claimant’s notice did no more than bring to the JCC’s attention a disagreement in the opinions of the health care providers. In substance, Claimant’s filing was merely a request that the JCC take notice of his mandatory obligation to appoint an EMA under section 440.13(9)(c). At that point, it was the JCC’s statutory obligation to review the opinions and, if the JCC agreed that there was in fact a disagreement sufficient to require the appointment of an EMA, to direct on his own motion that the employee be evaluated. Section 440.13(9)(f) provides that in such an instance, where the JCC directs that the evaluation take place, it is the obligation of the carrier to compensate the EMA.

Based on our analysis there is no need to reach Claimant’s constitutional arguments. An appellate court, when presented with the possibility of reading a statute in a constitutional manner versus declaring it unconstitutional, has “a duty to construe the statute in such a way as to avoid conflict with the Constitution.” The Fla. Bar v. Sibley, 995 So.2d 346, 350 (Fla.2008).

Because the JCC erred in reading Claimant’s notice to be Claimant’s motion for the appointment of an EMA, we reverse the appealed order. On remand, the JCC shall, on its own motion, order Claimant be evaluated by the EMA and direct the carrier to pay for the evaluation. Thereafter, the JCC shall, in accord with sections 440.13(9)(c) and 440.25(4)(d), Florida Statutes, consider the opinion of the EMA in determining Claimant’s entitlement to the claimed temporary partial disability benefits.

REVERSED and REMANDED with instructions.

BENTON, THOMAS, and CLARK, JJ„ concur.


text:
    Kyle Christopher BASS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2434.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A.' Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his convictions and sentence for second-degree murder and tampering with evidence. We affirm on all issues except one pertaining to the imposition of a minimum mandatory sentence, and we reverse and remand for resentenc-ing.

The trial court sentenced appellant on the second-degree murder count to life in prison with a twenty-five-year minimum mandatory pursuant to section 775.087(2)(a)(3), Florida Statutes (2006), which applies where the defendant discharged a firearm causing death or great bodily harm. Appellant filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) and argued this sentence was illegal because in the special verdict, the jury did not find that he discharged a firearm causing death or great bodily harm, but instead simply found that he discharged a firearm. Thus, appellant asked the court to resentence him to a twerity-year minimum mandatory for discharging a firearm pursuant to section 775.087(2)(a)(2), Florida Statutes (2006).

The trial court granted the motion and imposed a corrected sentence with a twenty-year minimum mandatory. However, the trial court ruled on the motion more than sixty days after the motion was filed. Sixty days after the motion was filed, the trial court’s jurisdiction ended and the motion was deemed denied. See Fla. R. Crim. P. 3.800(b)(2); Hart v. State, 773 So.2d 1263, 1264 (Fla. 1st DCA 2000). Thus, the court’s order granting the motion and the corrected sentence are nullities. See Pearce v. State, 968 So.2d 92, 94 (Fla. 2d DCA 2007). Therefore, we reverse the original sentence and the corrected sentence and remand for resentenc-ing. On all other issues, we affirm.

REVERSED IN PART AND REMANDED.

ROBERTS and MAKAR, JJ., concur.


author: PER CURIAM. MAKAR,

text:
    Samantha HILL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1854.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED.

LEWIS, C.J. and WOLF, J., concur; MAKAR, J., concurring with Opinion.

MAKAR,

J.,'concurring.

An underlying issue in this case is how far back in time may a court look in determining a defendant’s cooperation for purposes of section 921.0026(2)(i), Florida Statutes, which provides that a downward departure from the lowest possible sentence may be reasonably justified in a non-capital felony case when “[t]he defendant cooperated with the state to resolve the current offense or any other offense.” Hill asserts that she cooperated with the police in two unrelated prior cases, which she claims should have formed a basis for downward departure on her current sentence.

The trial court denied relief, in part, due to its reliance on the Third District’s decision in State v. Pita, 54 So.3d 557, 561 (Fla. 3d DCA 2011), which it interpreted to mean that a defendant’s cooperation is not a legally valid ground for departure where it “predates any of the offenses” that a defendant currently faces. Pita, however, cannot be read so broadly as to prohibit all prior instances of cooperation that predate a current offense. In rejecting the claim that prior defendant’s cooperation was a legally valid basis for a downward departure, the Third District stated:

The record reflects that the defendant cooperated with law enforcement and provided useful information regarding narcotics offenses, auto theft, and fraud. However, his cooperation predated the commission of many of the offenses he was facing at the time of his plea. Additionally, the State noted that the defendant’s cooperation was of little value after he committed additional offenses undermining his credibility and value as a witness. There also was no evidence that any of the information provided by the defendant led to the arrest, prosecution, and conviction of those involved. We therefore conclude that this ground was invalid.

Id. at 561-62. As is evident, the appellate court considered several factors in concluding that a downward departure was improper. It did not say that cooperation in cases that predated the current offense can never be considered; instead, it was considered a factor in combination with others. A plain reading of the statute, which places no temporal limit on when cooperation was provided, does not support a total prohibition; if the legislature had meant to do so the statute might have been written to apply to cooperation used to “resolve the current offense or any other offense predating the current offense.”

Despite the trial court’s reading of Pita on the temporal issue, its holding is supportable because it also concluded that there was not “any evidence that [Hill’s cooperation] helped law enforcement.” The burden was on Hill to show how and whether her prior cooperation assisted the state in resolving other offenses, whether they predated the current offense or not. State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002). Having failed to convince the trial court of the relevance of her cooperation, I concur in affirmance.


text:
    Mark T. HASH, Appellant, v. Rechin MOORE, Appellee.
    No. 1D13-4090.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.
    David F. Chester, Tallahassee, for Appellant.
    James C. Banks, Tallahassee; Katherine L. Viker, Tallahassee (no appearance); Elizabeth W. Willis, Tallahassee (no appearance); and Michael T. Dolce, West Palm Beach (no appearance), for Appellee.
   PER CURIAM.

The Court having determined that the order on appeal is not an appealable order, the appeal is hereby dismissed. See Fla. R.App. P. 9.600(c)(3); Carrithers v. Cornett’s Spirit of Suwannee, Inc., 93 So.3d 1240 (Fla. 1st DCA 2012). Appellant’s notice of appeal filed in this appeal on August 26, 2013, is hereby treated as invoking the Court’s review jurisdiction under Florida Rule of Appellate Procedure 9.600(c)(3). The notice of appeal, and all pleadings or motions previously filed in case number 1D13-4090, are transferred to case number 1D13-2638 for further proceedings.

PADOVANO, MARSTILLER, and MAKAR, JJ., concur.


text:
    STATE of Louisiana v. Christopher SEPULVADO.
    No. 2013-KP-2177.
    Supreme Court of Louisiana.
    Sept. 25, 2013.
   ORDER

11 Writ granted. Jurisdiction rests with the federal appellate court until a mandate has issued. U.S. v. Rivera, 844 F.2d 916 (2nd Cir.1988). A federal district court order, though vacated on appeal, remains in effect until the issuance of an appellate court mandate. Bridge C.A.T. Scan Associates v. Technicare Corp., 710 F.2d 940, 947 (2nd Cir.1983). Here, the trial court erred in issuing a warrant of execution before the United States Fifth Circuit Court of Appeals had issued a mandate. The Motion to Vacate Warrant of Execution filed by Defendant on September 6, 2013 is granted.

FOR THE COURT:

/s/ Jefferson D. Hughes III Justice, Supreme Court of Louisiana


text:
    In re Neil D. SWEENEY.
    No. 2013-B-1568.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

| Respondent failed to properly supervise his non-lawyer employees, resulting in the mishandling of legal matters. Prior to the filing of formal charges, respondent and the Office of Disciplinary Counsel submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rule 5.3 of the Rules of Professional Conduct. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline be accepted and that Neil D. Sweeney, Louisiana Bar Roll number 2136, be suspended from the practice of law for a period of one year. This suspension shall be deferred in its entirety, subject to respondent’s successful completion of a two-year period of unsupervised probation governed by the conditions set forth in the petition for consent discipline. The probationary period shall commence from the date respondent and the ODC execute a formal probation plan. Any failure of respondent to comply with the conditions of probation, or any misconduct during the probationary period, may be grounds for making the deferred suspension executory, or imposing additional discipline, as appropriate.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


text:
    In re Richard G. FOWLER.
    No. 2013-B-2080.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   ATTORNEY DISCIPLINARY PROCEEDINGS

PER CURIAM.

|tThe Office of Disciplinary Counsel (“ODC”) commenced an investigation into allegations that respondent’s failure to properly supervise his non-lawyer employee led to errors in the handling of his client trust account. Prior to the filing of formal charges, respondent and the ODC submitted a joint petition for consent discipline, in which the parties stipulated that respondent has violated Rules 1.15 and 5.3 of the Rules of Professional Conduct, and that the misconduct was negligent. Having reviewed the petition,

IT IS ORDERED that the Petition for Consent Discipline.be accepted and that Richard G. Fowler, Louisiana Bar Roll number 5803, be and he hereby is publicly reprimanded.

IT IS FURTHER ORDERED that respondent shall be placed on supervised probation for a period of two years, subject to the conditions set forth in the Petition for Consent Discipline.

IT IS FURTHER ORDERED that all costs and expenses in the matter are assessed against respondent in accordance with Supreme Court Rule XIX, § 10.1, with legal interest to commence thirty days from the date of finality of this court’s judgment until paid.


author: HUGHES, J.,

text:
    Julia CLOUD v. Jo Ann Boggs BARNES, Michael Delesdernier, Attorney at Law and ABC Insurance Company.
    No. 2013-C-1304.
    Supreme Court of Louisiana.
    Sept. 27, 2013.
   HUGHES, J.,

would grant the writ and assigns reasons.

The defendants effected a de facto sus-pensive appeal by intentionally disobeying the trial court’s order to cancel the lis pendens. While plaintiff may not have responded in the best manner (a rule for contempt would have been more appropriate), I can understand the frustration. Given the factual background of this litigation, I do not believe sanctions were appropriate. Accordingly, I would grant the writ.