author: LaROSE, Judge.

text:
    Raymond NEELEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6289.
    District Court of Appeal of Florida, Second District.
    May 15, 2013.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Raymond Neeley appeals his judgment and sentence after pleading to possession of a controlled substance without a prescription. See § 893.13(6)(a), Fla. Stat. (2010). We have jurisdiction. See Fla. RApp. P. 9.140(b)(2)(A)(i). The trial court erred in denying Mr. Neeley’s motion to suppress the pills found in his pocket after an illegal. detention and search. Consequently, we reverse.

The undisputed facts appear as follows. Officer Hilton was alerted to a man slumped over in a van in the driveway of a residence. He responded to the site and saw Mr. Neeley slumped behind the wheel with two doors wide open. He determined that Mr. Neeley was' all right and not intoxicated. Officer Hilton directed Mr. Neeley to “stand by” and knocked on the front door of the residence, which belonged to Ms. Clancy, Mr. Neeley’s ex-wife. The van was hers. After speaking with Ms. Clancy, Officer Hilton returned to the driveway. He searched Mr. Neeley and discovered eight oxycodone pills. Ms. Clancy found the van keys in her purse before Officer Hilton removed Mr. Neeley from the scene.

The.testimony of Officer Hilton and that of Ms. Clancy conflict as we delve further. Officer Hilton claimed that Ms. Clancy told him that Mr. Neeley did not have her permission to be in her van and that she was concerned about where her keys were. He said that when he searched Mr. Nee-ley, he believed he had probable cause to arrest him for trespass to a conveyance and that he was searching for the car keys. He claimed that he asked if he could search Mr. Neeley. Mr. Neeley only lifted his arms several inches, which Officer Hilton interpreted as consent.

Ms. Clancy testified that when she answered Officer Hilton’s knock on her door, she told him that the last time she saw Mr. Neeley he was on the couch, that it was fine with her that Mr. Neeley was sleeping in her van, and that she left the van unlocked. She testified that when she opened the door to Officer Hilton, she saw Mr. Neeley standing outside, handcuffed. She said that Officer Hilton told her he had found medication in Mr. Neeley’s pocket and asked her if she took medication and what type.

After a hearing, the trial court denied Mr. Neeley’s motion to suppress. The court found that at no time did Officer Hilton have probable cause to arrest him for trespass, but that the search was legal because there was no unlawful detention and Mr. Neeley consented to the search. The trial court concluded that Officer Hilton’s “asking” Mr. Neeley to “stand by” did not “put[ ] him in custody in any way” and that “he could have walked away if he wanted.” The court noted but discounted Ms. Clancy’s testimony that Mr. Neeley was handcuffed when she answered the door.

Even if Mr. Neeley consented to the search, such consent was invalid because Officer Hilton illegally detained him before consent. Consent given after illegal police activity is presumptively tainted and rendered involuntary. Norman v. State, 379 So.2d 643, 646-47 (Fla.1980); Butler v. State, 697 So.2d 907, 908-09 (Fla. 2d DCA 1997). Officer Hilton’s instruction to Mr. Neeley to “stand by” was a detention because a reasonable person under the circumstances would not feel free to leave or to disregard the instruction. See United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980); Johnson v. State, 995 So.2d 1011, 1013-14 (Fla. 1st DCA 2008) (holding officer’s direction to car passenger to “sit tight” was detention). Additionally, Officer Hilton illegally detained Mr. Neeley after he returned to the van by instructing him to step out of the vehicle. See Popple v. State, 626 So.2d 185, 186 (Fla.1993); Shaw v. State, 778 So.2d 389, 390 (Fla. 2d DCA 2001); Allen v. State, 703 So.2d 1162, 1162-63 (Fla. 2d DCA 1997). Mr. Neeley’s “consent” was tainted and involuntary. Therefore, we reverse Mr. Neeley’s conviction.

Reversed.

VILLANTI and CRENSHAW, JJ., Concur.

      . Mr. Neeley's second argument that section 893.13, Florida Statutes (2010), is unconstitutional, is thus moot. We note that the supreme court has held section 893.13 constitutional. See State v. Adkins, 96 So.3d 412 (Fla.2012).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The RAKUSIN LAW FIRM, a Professional Association f/k/a Rakusin & Plotka, P.A. f/k/a Stephen Rakusin, P.A., Appellant, v. Wendy GREY a/k/a Wendy Smoley, Appellee.
    No. 4D12-720.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Stephen Rakusin of The Rakusin Law Firm, A Professional Association, Fort Lauderdale, for appellant.
    Jerrell A. Breslin of Baron, Breslin & Sarmiento, Miami, for appellee.
   PER CURIAM.

Affirmed. See Miracle Ctr. Dev. Corp. v. M.A.D. Constr., Inc., 662 So.2d 1288, 1289-90 (Fla. 3d DCA 1995).

MAY, C.J., GERBER and LEVINE, JJ., concur.


author: DAMOORGIAN, J.

text:
    Diego TAMBRIZ-RAMIREZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-4359.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    Carey Haughwout, Public Defender, and Tom W. Odom, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Diego Tambriz-Ramirez appeals his judgment and sentence for one count of burglary with a battery while masked, one count of aggravated assault while masked, and one count of attempted sexual battery with a deadly weapon. We affirm in part and reverse in part.

Mr. Tambriz-Ramirez raises the following arguments on appeal: (1) the trial court erred by failing to declare a testifying handwriting expert as an expert witness; (2) his life sentence for his burglary with battery is excessive; and (3) his 30-year sentence for attempted sexual battery is illegal. We conclude that the first two arguments have no merit and decline to comment further. We do, however, hold that Mr. Tambriz-Ramirez’s sentence for attempted sexual battery is illegal, and remand for resentencing.

Attempted sexual battery with a deadly weapon is a second degree felony. § 777.04(4)(c), Fla. Stat. (2010). The maximum penalty for a second degree felony is fifteen years. § 775.082(3)(c), Fla. Stat. (2010). The trial court sentenced Mr. Tambriz-Ramirez to thirty years in prison. This was in excess of the amount allowed by statute and thus error.

The State concedes the trial court’s error, but urges us to direct the trial court to resentence Mr. Tambriz-Ramirez under the enhanced mandatory sentencing guidelines set forth in section 794.0115, Florida Statutes (2010), Florida’s Dangerous Sexual Felony Offender Act (“the Act”). We hold that Mr. Tambriz-Ramirez does not qualify for mandatory enhanced sentencing under the Act because he was not convicted of one of the qualifying crimes enumerated in section 794.0115(2). In interpreting the Act, we are bound by its plain language and cannot add words that were not included by the Legislature. Exposito v. State, 891 So.2d 525, 528 (Fla.2004). Although sexual battery with a deadly weapon is listed as qualifying crime, the Act makes no mention of whether an attempt can also be a qualifying crime. The absence of any reference to “attempts” is significant, especially in light of the fact that the Legislature chose to expressly identify “attempts” in other sentencing enhancement statutes. See, e.g. §§ 775.084(1)(b)-(c), Fla. Stat. (2012) (including “attempts” in defining qualifying offenses for sentencing as a violent felony offender and third-time violent felony offender). Thus, we conclude that since the Act does not include any language referencing attempts, attempts of qualifying crimes are not qualifying crimes under the Act. See Walters v. State, 790 So.2d 483, 485 (Fla. 5th DCA 2001) (absence of “attempts” under list of qualifying crimes supported defendant’s arguments that a conviction for an attempt of a qualifying crime did not subject him to sentence heightening statute).

Accordingly, we reverse and remand with directions to designate the offense a second degree felony and to impose a sentence of not more than fifteen years.

Affirmed, in part; Reversed in part and Remanded for resentencing.

STEVENSON and CONNER, JJ., concur.


author: WARNER, J.

text:
    Julien GARCON, Appellant, v. WEST PALM BEACH POLICE DEPARTMENT and State of Florida, Appellee.
    No. 4D11-3074.
    District Court of Appeal of Florida, Fourth District.
    May 15, 2013.
    See also, 349 Fed.Appx. 377, 406 Fed. Appx. 366.

      Julien Garcon, Miami, pro se.
    Kimberly L. Rothenburg and Claudia M. McKenna, for Amicus City of West Palm Beach.
   WARNER, J.

Appellant filed a motion for return of $48,865 in currency seized during the execution of a search warrant. The trial court denied the motion because it concluded that a federal court had adjudicated his rights to the money. We disagree, as the federal court did not determine appellant’s rights. We therefore reverse.

Appellant was tried in federal court on various charges arising out of items seized in the execution of a search warrant. He was acquitted of most charges. See U.S. v. Garcon, 349 Fed.Appx. 377 (11th Cir.2009). He filed, in the federal district court, his motion to return money and other property seized in the search. The district court denied the return of the money, because the government did not have possession of it, having turned it over to the City of West Palm Beach. This ruling was affirmed on appeal. U.S. v. Garcon, 406 Fed.Appx. 366 (11th Cir.2010).

Appellant then filed a motion for return of the property against the City of West Palm Beach in state court. The circuit court determined that appellant’s rights to the property had been adjudicated in the federal proceedings and denied the motion for return. We disagree, as the opinion of the federal circuit court did not adjudicate the rights of appellant. Instead, the court ruled that the appellant could not obtain relief against the federal government when it lacked possession of the funds. The circuit court ruled that “[bjeeause the government demonstrated that it no longer had possession of the currency, the district court correctly found that the government did not have the ability to return it to Garcon.” Id.

While it is true that, as the court in which the criminal charges were brought, the federal court had priority jurisdiction over the money seized, see Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191 (Fla. 5th DCA 2001), “[o]nce jurisdiction is acquired, property in the court’s custody ‘remainfe] there, by operation of law, until it is withdrawn by order of a competent court.’ U.S. v. $270,000.00 in U.S. Currency, Plus Interest, 1 F.3d 1146, 1148 (11th Cir.1993) (quoting Adams v. Burns, 126 Fla. 685, 695, 172 So. 75, 79 (1936)) (emphasis supplied). The circuit court’s ruling constituted such a withdrawal of jurisdiction. Appellant can no longer have his claim of ownership decided in the federal court.

As the federal court did not determine appellant’s rights to the funds, we reverse and remand for the trial court to determine appellant’s rights. Although the City requests that we affirm because appellant’s motion for return was not filed within 60 days of the final disposition, see section 705.105, Florida Statutes, appellant references other motions he filed which may have timely asserted his claim to ownership, and this record is insufficient to apply the “tipsy coachman principle.” Our reversal is without prejudice to the City raising the issue on remand.

GERBER and LEVINE, JJ., concur.

      . The other property for which he sought return is not at issue in this appeal.

      . This principle allows an appellate court to affirm a trial court that "reaches the right result, but for the wrong reasons" so long as "there is any basis which would support the judgment in the record." Robertson v. State, 829 So.2d 901, 906 (Fla.2002).


author: TORPY, J.

text:
    Emmett B. HAGOOD, III, Appellant, v. WELLS FARGO N.A., etc., Appellee.
    No. 5D12-2016.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.
    Craig L. Lynd  Angela M. Domenech and Richard W. Withers of Kaufman, En-glett & Lynd, PLLC, Orlando, for Appellant.
    Roy A. Diaz and Ryan T. Cox of SHD Legal Group, P.A., Fort Lauderdale, for Appellee.

      . Appellant's brief lists Craig L. Lynd, Florida Bar number 122210, as one of the attorneys. The bar website reflects that Florida Bar number 122210 was issued to Craig Ronald Lynd.

   TORPY, J.

In this mortgage foreclosure case, the trial court entered summary final judgment in favor of Appellee after Appellant’s counsel failed to appear at the hearing. The failure to appear was due to an error on the part of Appellant’s counsel’s law firm to properly calendar the hearing. The law firm attempted to rectify the error by seeking relief from the judgment based on excusable neglect with supporting affidavits. The trial court denied the request. Because we determine that Appellant’s counsel waived any viable issue on appeal by failing to assert the issue in the initial brief, we affirm.

After Appellant’s counsel, Alberto T. Montequin of Kaufman, Englett and Lynd, PLLC (“KEL”), failed to appear at a hearing on Appellee’s motion for summary judgment, the court entered summary final judgment of foreclosure. Mr. Montequin filed a motion for rehearing and to vacate the judgment based on excusable neglect. He attached to the motion his own affidavit and those of KEL staff members, attesting to the fact that the notice of hearing had been received but not calendared due to a clerical error. He also alleged a meritorious defense based on a previously filed answer and defenses. The court held a hearing on the motion and subsequently denied it without explanation. In appealing from this order, Appellant’s counsel did not file a transcript of the hearing with this Court.

Inexplicably, instead of challenging the summary judgment on the basis that the lower court erred in granting the judgment in the face of the answer and defenses on file, or that it abused its discretion in denying the request for relief from judgment based on excusable neglect, Appellant’s initial brief, prepared by three KEL lawyers, asserts that Appellant was not given notice of the hearing, an assertion that the record conclusively refutes. The initial brief is premised entirely on this purported due process violation. The summary of argument section in the initial brief provides:

Hagood asserts that the Final Summary Judgment should be vacated because Hagood was not provided notice of hearing on Wells Fargo’s Motion for Summary Judgment and was thus denied due process. It was error to enter Summary Judgment at a hearing in which Wells Fargo failed to coordinate with Hagood and which notice was never received by Hagood or his counsel. Due process requires that defendant be provided fair notice in order to appear and defend their rights.

The brief repeatedly asserts the total lack of notice — a fact that Appellant represented was “uncontroverted.”

In response, Appellee refuted Appellant’s lack of notice contention by directing our attention to the affidavits in the record on appeal. Again inexplicably, rather than attempt to correct the initial brief, Appellant’s counsel filed a reply brief, ignoring the discrepancy in the initial brief and attempting to raise for the first time the issue of whether the denial of the motion to vacate was an abuse of discretion. The summary of argument section in the reply brief states:

Appellant’s argument, most simply stated, is that the trial court abused its discretion in denying Appellant’s motion for relief under the Rules 1.530 and 1.540, Florida Rules of Civil Procedure. The abuse of discretion arose when the trial court declined to set aside a summary judgment of foreclosure entered by a different circuit judge. The summary judgment was entered without the appearance or participation of Appellant’s counsel at the summary judgment hearing. The failure of counsel to appear was due to clerical error committed by a paralegal in Appellant’s counsel’s office. The issues were brought to the trial court’s attention in the motion for relief.

Like Appellant’s initial brief, the reply brief fails to properly cite to the record on appeal to support any factual assertions.

At oral argument, Appellant’s counsel acknowledged that the issue contained in the reply brief was abandoned because it was not raised in the initial brief. See, e.g., Hoskins v. State, 75 So.3d 250, 257 (Fla.2011) (stating argument not raised in initial brief barred); J.A.B. Enters. v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992) (“[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.”). Accordingly, we are constrained to affirm without addressing the merits of Appellant’s alternative argument.

The quality of the legal work performed by KEL’s attorneys in this case is disturbing. It resulted in a waste of judicial resources and, perhaps, an injustice to the litigants. At a minimum, it increased the cost of the litigation and the time necessary to conclude it. The three lawyers who represented Appellant on appeal are not novices. In the aggregate they have over sixty years of experience as members of The Florida Bar. The least experienced of the three, Ms. Domenech, appeared for oral argument and' attempted to field the questions from the panel She informed the Court that all three attorneys participated equally in the preparation of the briefs, but that Mr. Withers, the most experienced of the group, was the “lead” attorney. He signed the briefs on behalf of all three attorneys and the firm. No satisfactory explanation was proffered by Ms. Domenech at oral argument why this Court should not impose sanctions. Before we impose sanctions, however, it is appropriate that all three attorneys have an opportunity to address the Court’s concerns. Accordingly, pursuant to Florida Rule of Appellate Procedure 9.410, each attorney for Appellant named on the briefs shall,-within 10 days, show cause in writing why sanctions should not be imposed for violating the appellate rules of procedure regarding the provision of record support for facts, for misrepresenting the facts in the initial brief, and for filing a legally untenable and therefore frivolous reply brief. Counsel shall provide a copy of this opinion and any responses filed with this Court to Appellant.

Jurisdiction is reserved for the purpose of imposing sanctions, if warranted.

AFFIRMED; SHOW CAUSE ORDER ISSUED.

JACOBUS and BERGER, JJ, concur.

      . Appellant had timely answered the complaint and raised numerous defenses, including his assertion that Appellee had failed to comply with various conditions precedent under the mortgage and applicable law. These defenses were pled specifically. The burden below was then on Appellee to overcome these defenses in its application for summary judgment. The fact that counsel failed to appear at the hearing did not defeat this burden. Because this issue was not addressed on appeal in any of the briefs, however, we cannot address the merits of whether summary judgment was appropriate.

      . The reply brief addresses the meritorious defense issue in a conclusory manner. We do not address whether Appellant adequately established a meritorious defense below.

      . Mr. Withers has been a member of The Florida Bar since 1972. Mr. Lynd was admitted in 1997, and Ms. Domenech was admitted in 2008.


author: COHEN, J.

text:
    Lyle S. SALTZMAN, M.D., and Brevard Anesthesia Services, P.A., Appellants, v. Marsha Lynn HADLOCK, et al., Appellees.
    No. 5D12-1362.
    District Court of Appeal of Florida, Fifth District.
    May 17, 2013.

      William E. Whitney of Dunlap & Ship-man, P.A., Santa Rosa Beach, for Appellant.
    J. Scott Murphy of Paul & Perkins, P.A., Orlando, for Appellee.
   COHEN, J.

Lyle S. Saltzman, M.D., and Brevard Anesthesia Services, P.A. (collectively, “Dr. Saltzman”), appeal from the trial court’s order denying their motion for attorney’s fees against Marsha Lynn Had-lock. On appeal, Dr. Saltzman argues that section 44.103(6), Florida Statutes (2002), requires the trial court to award attorney’s fees. We disagree and affirm.

This appeal arose out of a medical malpractice action Hadlock brought against Dr. Saltzman. After a court-ordered nonbinding arbitration hearing, the arbitrator found no negligence on the part of Dr. Saltzman. Dissatisfied with the result of the arbitration, Hadlock requested a jury trial de novo pursuant to section 44.103(5), Florida Statutes (2002), and Florida Rule of Civil Procedure 1.820(h). Following trial, the jury returned a verdict in favor of the defense, and the trial court entered a final judgment in favor of Dr. Saltzman. Dr. Saltzman subsequently filed a motion for attorney’s fees pursuant to section 44.103(6), which the trial court denied. This appeal ensued.

Generally, a trial court’s order on attorney’s fees is reviewed for an abuse of discretion. T & W Developers, Inc. v. Salmonsen, 31 So.3d 298, 301 (Fla. 5th DCA 2010). When entitlement to attorney’s fees is based on the interpretation of a statute, however, this Court’s review is de novo. ' Id. Because statutes awarding attorney’s fees are in derogation of the common law rule requiring each party to pay its own attorney’s fees, they are to be strictly construed. See Winter Park Imports, Inc. v. JM Family Enters., 66 So.3d 336, 340 (Fla. 5th DCA 2011).

Section 44.103(6), Florida Statutes (2002), provides that “[t]he party having filed for a trial de novo may be assessed ... reasonable costs of the party, including attorney’s fees, ... incurred after the arbitration hearing if the judgment upon the trial de novo is not more favorable than the arbitration decision.” (Emphasis added). Dr. Saltzman argues that the Legislature’s use of the permissive term “may” does not render the trial court’s decision to award attorney’s fees completely discretionary. Instead, he claims, the statute gives the trial court discretion only to determine whether the judgment following trial is more favorable than the arbitration decision. Under that interpretation of the statute, Dr. Saltzman asserts he is entitled to attorney’s fees because neither the arbitrator nor the jury awarded Hadlock any damages, and the result at trial was thus no more favorable to her than the arbitration decision. Dr. Saltz-man suggests that such an interpretation of section 44.103(6) effectuates the statute’s purpose — to discourage parties from miscalculating the strength of their cases and encourage acceptance of the arbitrator’s decision. See Dunkin’ Donuts Franchised Rests., LLC v. 330545 Donuts, Inc., 27 So.3d 711, 714 (Fla. 4th DCA 2010).

We are not persuaded by Dr. Saltzman’s arguments. We are compelled to analyze this statute using fundamental rules of statutory construction. As the supreme court explained in Daniels v. Florida Department of Health, 898 So.2d 61, 64-65 (Fla.2005):

When the statute is clear and unambiguous, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. In such instance, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent. When the statutory language is clear, courts have no occasion to resort to rules of construction — they must read the statute as written, for to do otherwise would constitute an abrogation of legislative power.

(Citations and internal quotation marks omitted). It is well-settled that the word “may” “denotes a permissive term rather than the mandatory connotation of the word ‘shall.’ ” The Fla. Bar v. Trazenfeld, 833 So.2d 734, 738 (Fla.2002); see also Humane Soc’y. of Broward Cnty., Inc. v. Fla. Humane Soc’y., 951 So.2d 966, 972 (Fla. 4th DCA 2007) (holding award of attorney’s fees was discretionary under section 501.2105, Florida Statutes (2003), which provided that “the prevailing party ... may receive his or her reasonable attorney’s fees and costs from the nonpre-vailing party.”); Williams v. Fla. Mem'l. Coll, 453 So.2d 541, 542 (Fla. 3d DCA 1984) (stating that section 448.08, Florida Statutes (1981), “authorizes, but does not require, an award of attorney’s fees” where statute provided the court may award prevailing party fees).

Given the overriding principles that statutes awarding attorney’s fees are to be strictly construed and that the plain language of a statute controls, we find that by using the permissive term “may” in section 44.103(6), the Legislature vested the trial court with discretion to award or deny attorney’s fees. Because the statutory language is unambiguous, the Court need not look to legislative intent. Accordingly, we affirm.

AFFIRMED.

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

      . Section 44.103(6) was amended effective October 1, 2007. See Ch. 2007-206, § 1, at 1888, Laws of Fla. It now provides, in pertinent part, that reasonable attorney's fees "may be assessed” against a plaintiff who, "having filed for a trial de novo, obtains a judgment at trial which is at least 25 percent less than the arbitration award.” § 44.103(6)(a), Fla. Stat. (2007). We apply the former version of the statute, as it was in effect at the time the cause of action accrued. See Bevan v. Bean, 661 So.2d 1251, 1252 (Fla. 2d DCA 1995).


text:
    S.K.W., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1457.
    District Court of Appeal of Florida, Second District.
    May 17, 2013.

      Howard L. Dimmig, II, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

S.K.W., a juvenile, appeals her adjudication and disposition of probation for loitering or prowling. See § 856.021(1), Fla. Stat. (2011). Because the evidence is insufficient to establish loitering or prowling, we reverse.

S.K.W. and another girl, A.K.A., were arrested for loitering or prowling in a neighborhood after a resident called the police to report that he had seen two girls walk around the side of a vacant house. The resident saw the girls walking down the street as he was driving home. They were not from the neighborhood. He observed them knock on the door of a neighbor’s house, talk to that neighbor, and then walk over to the vacant house.

Arriving at the scene, Officer Putman saw the two girls walking on the second-floor wrap-around porch from the back of house toward the front entry door. He directed the girls to come down; they complied. Responding to Officer Putman’s questions about their purpose, the girls said that “they were just hanging out.” The girls provided their names and their street addresses, although they could not recall their exact numeric addresses. Neither girl had any drugs or weapons. Each had a cell phone and a cigarette lighter.

Officer Westmoreland arrived as backup. He inspected the house and found no signs of entry, damage, or theft. The officers arrested the girls for loitering or prowling.

Section 856.021(1) defines loitering or prowling as follows:

It is unlawful for any person to loiter or prowl in a place, at a time or in a manner not usual for law-abiding individuals, under circumstances that warrant a justifiable and reasonable alarm or immediate concern for the safety of persons or property in the vicinity.

This conduct must come close to but fall short of an actual offense and suggest that a breach of the peace is imminent. Rucker v. State, 921 So.2d 857, 859 (Fla. 2d DCA 2006) (citing Grant v. State, 854 So.2d 240, 242 (Fla. 4th DCA 2003)). An imminent threat to the safety of persons or property is key. E.B. v. State, 537 So.2d 148, 149 (Fla. 2d DCA 1989) (citing State v. Ecker, 311 So.2d 104 (Fla.1975)); accord Simms v. State, 51 So.3d 1264, 1267 (Fla. 2d DCA 2011). “[T]he mere suspicion of future conduct is insufficient.” Rucker, 921 So.2d at 859 (citing R.M. v. State, 754 So.2d 849, 850 (Fla. 2d DCA 2000)).

The State relies on C.H.S. v. State, 795 So.2d 1087, 1090 (Fla. 2d DCA 2001), for the proposition that alarm is presumed if the suspect flees, attempts concealment, or refuses identification. The State contends that S.K.W. “partially refused to identify herself by withholding her address and phone number from the officer.” But, when Officer Putman asked the girls for identifying information, they gave their names and identified the streets on which they lived. He asked A.K.A., the other girl with S.K.W., for her parents’ phone number, and she stated she did not know. He asked her if her parents’ phone number could be found on her cell phone, and she answered yes. The record does not reflect that S.K.W. refused to provide parental or other information. Officer Put-man specifically stated that the girls did not refuse to identify themselves.

The resident who called the police testified, “I said just send an officer over there and tell them they’re not supposed to be there or slap them on the wrist and send them home. That’s all I wanted to do.” He described the vacant house as “a two-story pink really fancy-looking rich type of a house.” He had never seen the girls before and “they came from out of the neighborhood.” He stated that “one of them appeared to be a black female, thin, and she had a girl with her who was ... Hispanic.” They “were both dressed extremely nice [and] ... didn’t look like they were going to cause anybody any trouble.” In fact, the record tells us that the girls were selling cookies in the neighborhood.

Officer Putman testified that the “area has been hit pretty hard with criminal activity as far as burglary, theft of appliances, mainly air conditioners, scrap metal.” The State argued that the girls were not carrying folders or wearing backpacks that one would expect cookie-sellers to have. Yet, they carried no tools necessary to steal appliances, air conditioners, or scrap metal. The prosecutor asked Officer Putman if he had seen other types of damage result from teens hanging around vacant houses. He answered, “Vandalism, broken windows, busted up property.... You-you worry about drug activity.” As noted earlier, however, the girls had no drugs and the officers found no sign of entry, theft, or damage.

We applaud the quick response and inquiry by law enforcement officers. But, the record does not establish an imminent threat to persons or property. Precedent compels no differently. See, e.g., Bowser v. State, 937 So.2d 1270, 1271-72 (Fla. 2d DCA 2006) (neither “possibly suspicious” circumstances of appellant’s looking into cars in dark parking lot nor officer’s discovery upon questioning that appellant “seemed to be taking a roundabout route home” created requisite concern to establish loitering or prowling); Woody v. State, 581 So.2d 966, 967 (Fla. 2d DCA 1991) (officer’s concern for safety of persons or property upon seeing appellant hiding in bushes “was not supported by any articula-ble facts which could reasonably warrant such a concern ..., [but] was based on pure speculation; there was nothing to suggest any independent criminal activity afoot”); E.F. v. State, 110 So.3d 101, (Fla. 4th DCA Mar.20, 2013) (State failed to meet burden regarding loitering-or-prowling elements based on suspicious behavior of juvenile, not from neighborhood and carrying large satchel and flashlight, walking slowly down street looking into carports and sides of houses in area where recent burglaries occurred); L.C. v. State, 516 So.2d 95, 96-97 (Fla. 3d DCA 1987) (suspicious behavior in high-crime area and insufficient explanation not enough to elicit justified immediate concern for neighborhood safety necessary for loitering or prowling arrest).

The loitering or prowling statute “reaches the outer limits of constitutionality and must be applied with special care.” Carroll v. State, 573 So.2d 148, 148 (Fla. 2d DCA 1991) (citing D.A. v. State, 471 So.2d 147, 153 (Fla. 3d DCA 1985)). “Loitering has long been an offense that occasionally tempts good police officers to exercise power in a manner that is inconsistent with the standards of our free society.” Rinehart v. State, 778 So.2d 331, 335 (Fla. 2d DCA 2000) (Altenbernd, J., concurring). The loitering or prowling statute must not be used as a “catchall provision to detain a citizen and prosecute [her] where there was insufficient basis to convict on some other charge.” Woody, 581 So.2d at 967; accord Simms, 51 So.3d at 1268. The officers had no basis to detain S.K.W. for attempted burglary, or even trespassing. See § 810.09(2)(b), Fla. Stat. (2011); S.N.J. v. State, 17 So.3d 1258, 1259-60 (Fla. 2d DCA 2009) (trespass on unposted land does not occur until trespasser is warned to depart and fails to do so; officer was required to issue trespass warning prior to detention where no-trespassing signs not posted).

On the record before us, we can discover no probable cause to arrest S.K.W. for loitering or prowling. We must, therefore, reverse her adjudication and disposition.

Reversed.

KHOUZAM and MORRIS, JJ., Concur.

      . We reject the State’s argument that S.K.W. waived her claim that the evidence was insufficient because her counsel did not move for a judgment of acquittal, but argued only "that the trial court should find that [S.K.W.] did not violate the statute.” The State recognizes, however, that "[S.K.W.’s] claim is not cognizable on direct appeal unless she can show that no crime was committed at all.” See Matheny v. State, 15 So.3d 658, 659 (Fla. 1st DCA 2009) (citing F.B. v. State, 852 So.2d 226, 229 (Fla.2003)). Counsel argued that S.K.W.'s actions were "not a loitering and prowling" and "the elements of loitering [or] prowling simply have not been met in this case.” We will not quibble about the sufficiency of defense counsel’s argument before the trial court. Whether or not counsel waived the claim, we are hard pressed to ignore the admonition that "it would be fundamental error not to correct on appeal a situation where [the defendant] stands convicted of a crime that never occurred.” Nelson v. State, 543 So.2d 1308, 1309 (Fla. 2d DCA 1989) (citing Dydek v. State, 400 So.2d 1255, 1258 (Fla. 2d DCA 1981) ("We can think of no error more fundamental than the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged.”)).

      . Our review of the record suggests that the front door was not at street level. It was on a higher level accessed by a staircase on the back or side of the house.


author: VILLANTI, Judge.

text:
    Andre J. SAS, Appellant, v. FEDERAL NATIONAL MORTGAGE ASSOCIATION, Appellee.
    No. 2D11-6327.
    District Court of Appeal of Florida, Second District.
    May 17, 2013.

      H. Daniel McKillop of McKillop Law Firm, Sarasota, for Appellant.
    Kimberly N. Hopkins of Shapiro, Fish-man, and Gaché, LLP, Tampa, for Appel-lee.
   VILLANTI, Judge.

Andre Sas appeals the trial court’s final judgment of foreclosure in favor of Federal National Mortgage Association (Fannie Mae). Although Sas raises several challenges to the final judgment, we find merit in only one of his arguments. Sas argues that Fannie Mae representative Jon Greenlee’s oral testimony about the amount of the debt owed by Sas to Fannie Mae was hearsay and, therefore, legally insufficient to establish the amount of the debt because Fannie Mae never admitted into evidence any business records supporting Greenlee’s testimony. We agree with this argument. Therefore, while we affirm the final judgment of foreclosure, we reverse and remand for further proceedings to determine the amount of the debt owed.

In 2007, Sas financed the purchase of a residence by executing a promissory note and mortgage. In 2009, after Sas defaulted, Chase Home Finance, LLC, as servicing agent for Fannie Mae, filed a foreclosure action against Sas. Fannie Mae was eventually substituted as plaintiff in July 2011. At the bench trial, the only evidence of the total amount due and owed by Sas was testified to by Greenlee, a litigation specialist with Seterus, Inc. Seterus had been Fannie Mae’s mortgage loan servicer since August 1, 2010. As a litigation specialist for Seterus, Greenlee handled contested foreclosure matters and reviewed business records in preparation for trial. However, he had no personal knowledge of the amount of the debt in this ease and testified about the amount based only on his review of Seterus’s business records related to the loan. Specifically, Fannie Mae asked Greenlee: “[Gjoing back to review of the damages in this case, have you had an opportunity based on your business records to review the total amount due and owing in this case?” Greenlee looked at his notes and testified that the total amount due and owing was $240,756.88. Fannie Mae followed up asking, “And that $240,756.88, that particular figure, does that represent all fees and costs due and owing for this particular case based on your review of your business records?” Greenlee replied, “Yes, it does.” Fannie Mae did not produce the business records upon which Greenlee relied to testify about the debt amount, and the trial court overruled Sas’s objection to the testimony as being hearsay. Sas asked to see the personal notes that Greenlee used to refresh his recollection about the amount, but the trial court denied that request. At the end of trial, the court entered a final judgment of foreclosure in the amount of $240,756.88.

A trial court’s ruling on the admissibility of evidence is reviewed for abuse of discretion. Sottilaro v. Figueroa, 86 So.3d 505, 507 (Fla. 2d DCA), review denied, 103 So.3d 139 (Fla.2012). Here, the trial court abused its discretion in allowing Greenlee to testify over objection about the contents of Fannie Mae’s business records to prove the amount of the debt without having first admitted those business records. See Dreyer v. State, 46 So.3d 613, 615 (Fla. 2d DCA 2010) (holding that trial court erred in allowing witness to offer hearsay testimony regarding the amount of money the defendant stole to prove the amount of restitution because the witness had no personal knowledge of the amount at issue and the testimony was based on information received from employees of the victim’s financial institution and from financial statements received from those institutions); A.S. v. State, 91 So.3d 270, 271 (Fla. 4th DCA 2012) (“Because the actual estimate was not admitted into evidence, the testimony concerning its contents should have been stricken. Without this evidence, the record does not provide competent, substantial evidence demonstrating the essential element of value.”); Richardson v. State, 875 So.2d 673, 677 (Fla. 1st DCA 2004) (holding that trial court erred in allowing witness with no personal knowledge to testify about the amount of money taken from a cash register based on the contents of a record that was never introduced into evidence); Thompson v. State, 705 So.2d 1046, 1048 (Fla. 4th DCA 1998) (holding that business record exception to hearsay did not authorize hearsay testimony about the contents of business record reflecting the value of merchandise stolen when the business record was not admitted into evidence); Cullimore v. Barnett Bank of Jacksonville, 386 So.2d 894, 895 (Fla. 1st DCA 1980) (“The business records exception is ... inapplicable because there were no records or reports offered into evidence; there was only testimony concerning communications made between the dispatcher and the deputy. Accordingly, we conclude that the hearsay testimony should have been excluded.”).

Based on the foregoing, we reverse and remand for further proceedings to properly establish the amounts allegedly due and owing. See Mazine v. M & I Bank, 67 So.3d 1129, 1131 (Fla. 1st DCA 2011) (remanding for further proceedings where bank failed to lay proper foundation for introduction into evidence of an affidavit of the amounts allegedly due and owing); see generally Dreyer, 46 So.3d at 615 (remanding for new hearing to determine amount of restitution); Mitchell Bros., Inc. v. Westfield Ins. Co., 24 So.3d 1269, 1270 (Fla. 1st DCA 2009) (remanding for further proceedings to determine damages amount through nonhearsay evidence).

Affirmed in part; reversed in part; remanded for further proceedings consistent with this opinion.

WALLACE and BLACK, JJ„ Concur.

      . Our holding makes it unnecessary to address the corollary issue of the trial court's denial of Sas's request to examine Greenlee's notes. See § 90.613, Fla. Stat. (2011); Merlin v. Boca Raton Cmty. Hosp., 479 So.2d 236, 238-39 (Fla. 4th DCA 1985) (explaining that when a witness refers to documents to refresh his memory while testifying, the adverse party is entitled to inspect the documents and to cross-examine the witness about them). These notes are not included in the record on appeal and were not reviewed in camera. Since neither the notes themselves nor any findings of their contents have been presented to us, we make no comment as to whether, if Sas’s right to examine the purported evidence against him had not been denied, this could have sufficed to establish the amount legally owed.


author: KHOUZAM, Judge.

text:
    FLORIDA DEPARTMENT OF CORRECTIONS, Petitioner, v. Daniel MORGAN, Respondent.
    No. 2D12-5928.
    District Court of Appeal of Florida, Second District.
    May 17, 2013.

      Michael T. Kennett, Assistant General Counsel, Florida Department of Corrections, for Petitioner.
    Daniel Morgan, pro se.
   KHOUZAM, Judge.

The Department of Corrections petitions this court for a writ of certiorari quashing the circuit court’s order granting Daniel Morgan’s petition for writ of habeas corpus following an administrative dispute. Although we do not fully agree with the circuit court’s analysis, we conclude that the Department’s narrow argument in support of its petition does not warrant relief. Consistent with the limited standard of review applicable in a second-tier certiora-ri proceeding, we deny the petition.

Denied.

WALLACE and CRENSHAW, JJ., Concur.


text:
    Robert MONTGOMERY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3783.
    District Court of Appeal of Florida, Second District.
    May 17, 2013.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

In conducting its record review following Anders briefing, this court agrees that a sentencing error occurred. After supplemental briefing, the State rightly concedes the error. Specifically, Montgomery pleaded no contest to both counts of the information: (1) a violation of section 827.04(3), Florida Statutes (2009), a third-degree felony; and (2) a violation of section 800.04(4)(a), Florida Statutes (2009), a second-degree felony. Because Montgomery was sentenced to 120 months in prison concurrent on both counts, his sentence on Count 1 exceeded both the statutory maximum for a third-degree felony and the minimum sentence indicated in Montgomery’s Criminal Punishment Code score-sheet. See § 775.082(3)(d), Fla. Stat. (2009); Butler v. State, 838 So.2d 554, 556 (Fla.2003). We affirm without comment both convictions, as well as the sentence on Count 2. But we must vacate the sentence on Count 1 and remand for resentencing on that count only.

Affirmed in part; sentence vacated on Count 1; remanded for further proceedings consistent with this opinion.

DAVIS and SLEET, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: VAN NORTWICK, J.

text:
    Tevin Akeem NETTLES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-0786.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Tevin Akeem Nettles appeals his convictions and sentences for carjacking with a firearm and robbery with a firearm arguing the jury’s verdict was legally inconsistent. We agree and reverse and remand for resentencing.

By information Nettles was charged with carjacking with a firearm or a deadly weapon, robbery armed with a firearm, and armed kidnapping with a weapon. At trial, the jury was not instructed on the principals theory, and the verdict used did not list any lesser included offenses. In addition to asking the jury to find Nettles guilty or not guilty as to each charged offense, the jury was asked to find whether or not Nettles possessed a firearm during the carjacking and during the robbery. The jury found Nettles guilty as charged with respect to each of the three offenses, but found that he did not possess a firearm with respect to the charges of carjacking with a firearm and robbery with a firearm. Nettles thereafter moved to be adjudicated guilty of carjacking and robbery, but the trial court denied that motion. Nettles was then adjudicated guilty of carjacking with a firearm and robbery with a firearm, first degree felonies punishable by life.

A verdict which is factually inconsistent is permissible in Florida as it results from a jury’s inherent authority to acquit. Thus, for example, a jury’s verdict finding a defendant guilty of aggravated fleeing and eluding and attempted assault charges is permissible even though such a result is factually inconsistent with a verdict of not guilty by reason of insanity on other charges arising from the same incident. State v. Cappalo, 932 So.2d 331 (Fla. 2d DCA 2006).

A verdict which is legally inconsistent, however, cannot stand. See Shavers v. State, 86 So.3d 1218 (Fla. 2d DCA 2012). Such a verdict occurs when a “not-guilty finding on one count negates an element on another count that is necessary for conviction.” Id. at 1221. Here, the jury’s finding that Nettles did not possess a firearm negated the possession element necessary for conviction of carjacking with a firearm, section 812.133(2)(a), and robbery with a firearm, section 812.13(2)(a), Florida Statutes (2011).

Accordingly, the trial court erred in adjudicating Nettles guilty of carjacking with a firearm and robbery with a firearm. We reverse the judgment of conviction as to these counts and vacate the sentences therefor. The cause is remanded for entry of a corrected judgment which adjudicates Nettles guilty of carjacking and robbery; the third conviction is unaffected by this decision. Upon preparation of a corrected Criminal Punishment Code scoresheet, Nettles is to be resentenced.

REVERSED and REMANDED for further proceedings.

WOLF and WETHERELL, JJ., concur.


text:
    Susan Marie POSTON, Petitioner, v. Estella WIGGINS and Clarence Wiggins, Her Husband, and State Farm Mutual Insurance Company, Respondents.
    No. 1D12-5183.
    District Court of Appeal of Florida, First District.
    May 17, 2013.

      Jessica M. Bowen of Heath & Rasky, P.A., Tallahassee; Rhonda B. Boggess and Gina A. Peretti of Taylor Day Currie Boyd Johnson, Jacksonville, for Petitioner.
    Thomas T. Demás, Lake City; Andrew J. Deckler, IV, Live Oak, and Kory J. Ickler of Pennington, Moore, Wilkinson, Tallahassee, for Respondents.
   PER CURIAM.

The petitioner, the defendant in an automobile negligence action, seeks a writ of certiorari to quash the trial court’s order overruling her objection to discovery of her medical records. The order subject to the petition requires disclosure of two distinct groups of records: (1) the petitioner’s pharmacy records for the one-year period preceding the date of the subject automobile accident, and (2) medical records from the petitioner’s treating physician from the date of the accident “until the present.” We dismiss the petition with regard to the first group of records as the petitioner failed to satisfy the jurisdictional requirement of irreparable harm. However, we grant the petition with regard to the second group of records.

The petitioner is an elderly woman who wears glasses and takes several prescription medications. The accident giving rise to the complaint occurred when the petitioner was backing up out of a parking space and struck the plaintiffs car. The plaintiffs filed a complaint alleging that they suffered damages as a result of the petitioner’s negligence. The petitioner denied liability and did not assert a counterclaim seeking damages from the plaintiffs. In her sworn interrogatories, the petitioner responded that she had not been injured in the accident and provided details of her prescription medication usage in the 12-hour period before the accident. The petitioner later provided deposition testimony that her osteoarthritis had gotten worse since the accident along with details about her prescription medication usage. The plaintiffs contend that her deposition testimony was inconsistent with her interrogatories. Specifically, they assert that her statement that her osteoarthritis had gotten worse could be inferred to mean that she was indeed injured in the accident, contrary to her interrogatory response. The plaintiffs also assert that there were inconsistencies in the petitioner’s testimony about her prescription medication usage.

Following these alleged inconsistencies, the plaintiffs filed notices of production seeking all papers and medical records (without any date restriction) from the petitioner’s pharmacy and from one of her treating physicians. The petitioner objected that the information sought was irrelevant, immaterial, and invaded her privacy rights. The trial court overruled the objection finding, “[njotwithstanding the absence of a bodily injury claim” brought by the petitioner; the plaintiffs were entitled to the records due to “the existence of inconsistencies” between the petitioner’s interrogatory responses and her deposition testimony.

The trial court’s order directed the petitioner to execute a release of her pre-accident pharmacy records and post-accident medical records to her counsel. Upon receipt, the petitioner’s counsel could then move for a protective order with respect to the particular records she asserted were privileged. The petitioner seeks certiorari review of the trial court’s order.

“Certiorari review of an order compelling discovery is appropriate when the order departs from the essential requirements of law, causing irreparable harm that cannot be remedied on plenary appeal.” Heekin v. Del Col, 60 So.3d 437, 438 (Fla. 1st DCA 2011) (citing Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1176 (Fla. 1st DCA 2008)). However, this Court must first conduct a jurisdictional analysis to determine whether the petitioner has made a prima facie showing of irreparable harm. Id. at 438.

A patient’s medical records enjoy a confidential status by the right to privacy in Article I, section 23 of the Florida Constitution. State v. Johnson, 814 So.2d 390, 393 (Fla.2002). The trial court is charged with balancing the right to broad discovery against an individual’s competing privacy interests to prevent an undue invasion of privacy. See Barker v. Barker, 909 So.2d 333, 338 (Fla. 2d DCA 2005) (citing Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 535 (Fla.1987)). Certiorari may be appropriate where a discovery order compels disclosure of medical or other records that infringe upon a party’s constitutional privacy rights. See e.g., James v. Veneziano, 98 So.3d 697 (Fla. 4th DCA 2012) (granting a certiorari petition and quashing the trial court’s order that compelled discovery of 10 years’ worth of medical records on the grounds that irreparable harm was established by the implication of the constitutionally-recognized right to privacy and the trial court departed from the essential requirements of law by requiring the immediate disclosure of the records without first conducting in camera review to determine relevancy). In exercising its discretion to balance the competing interests, the trial court is guided by the principles of relevancy and practicality. See Friedman v. Heart Inst. of Port St. Lucie, 863 So.2d 189, 194 (Fla.2003).

In the instant case, the pre-acci-dent pharmacy records appear to be relevant to the issue of negligence in the case and are potentially discoverable. However, the petitioner’s alleged irreparable harm with regard to this group of records is premature and speculative. See Holden Cove, Inc. v. 4 Mac Holdings, Inc., 948 So.2d 1041, 1042 (Fla. 5th DCA 2007) (rejecting an irreparable harm argument as being premature and speculative). As the petitioner could ultimately appeal the denial of the protective order and the trial court could still perform an in camera review and receive argument to determine the relevancy of the pre-accident pharmacy records, the petitioner has failed to demonstrate irreparable harm to warrant certiorari relief. See Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336 (Fla. 5th DCA 2005) (denying as premature a petition for writ of certiorari that sought review of an order requiring the submission of documents to the court for in camera inspection). Accordingly, we dismiss the portion of the petition regarding the pre-accident pharmacy records.

As to the petitioner’s post-accident medical records, we find that they are irrelevant to the issues in the case and the trial court erred in ordering these documents to be produced. Discovery must be relevant to the subject matter of the pending action. See Fla. R. Civ. P. 1.280(b)(1). The petitioner did not put her post-accident medical condition at issue in the case. The plaintiffs argue that the post-accident medical records are relevant because the petitioner provided inconsistent information as to whether she was injured in the accident. We do not find any inconsistency in the petitioner’s response that she was not injured in the accident and her testimony that her osteoarthritis had gotten worse since the accident. There is nothing in the petitioner’s testimony to suggest that her condition worsened as a result of the accident rather than from the mere passage of time since the accident and her deposition testimony. Moreover, even if an inconsistency were apparent, the petitioner’s injury is irrelevant to the issues in the case — whether the petitioner was negligent and whether the plaintiffs were injured and suffered damages as a result of this negligence. Unlike the pre-accident pharmacy records which may be relevant, the post-accident medical records are entirely irrelevant and an in camera review on remand would serve no purpose. See Pusateri v. Fernandez, 707 So.2d 892, 893 (Fla. 2d DCA 1998) (“Discovery should be denied when it has been established that the information requested is neither relevant to any pending claim or defense nor will it lead to the discovery of admissible evidence.”). Accordingly, we grant the petition in this respect and quash the portion of the order requiring production of the petitioner’s post-accident medical records.

GRANTED in part, DISMISSED in part, and REMANDED for further proceedings. consistent with this opinion.

ROBERTS, WETHERELL, and MARSTILLER, JJ., Concur.


author: PER CURIAM. MAKAR, J.,

text:
    SOUTHERN BAPTIST HOSPITAL OF FLORIDA, INC., d/b/a Baptist Medical Center, Appellant, v. Michelle and Chris JOHNSTON, as parents and natural guardians of Emma Johnston, a minor, and Florida Birth-Related Neurological Injury Compensation Association, Appellees.
    No. 1D12-2658.
    District Court of Appeal of Florida, First District.
    May 17, 2013.
    Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee; William E. Kuntz, Earl E. Googe, Jr., and Megan R. Heiden of Smith Hulsey & Busey, Jacksonville, for Appellant.
    Ronald S. Gilbert of Colling, Gilbert, Wright & Carter, LLC, Orlando; Rebecca Bowen Creed of Creed & Gowdy, P.A., Jacksonville, for Michelle and Chris Johnston; J. Stephen Menton and Stephen A. Ecenia of Rutledge Ecenia, P.A., Tallahassee; Michael A. Kundid and Theodore R. Doran of Doran, Sims, Wolfe & Kundid, Daytona Beach, for Florida Birth-Related Neurological Injury Compensation Association.
   ON MOTION FOR REHEARING AND FOR WRITTEN OPINION

PER CURIAM.

We deny Appellant’s motion for rehearing and request for written opinion, but we sua sponte withdraw our previous per cu-riam opinion dated March 19, 2013, and substitute the following in its place.

AFFIRMED.

LEWIS and THOMAS, JJ., concur.

MAKAR, J., Specially Concurring.

MAKAR, J.,

specially concurring.

This case is unusual, in part, because of the incentives established under the Florida Birth-Related Neurological Injury Compensation Association (“NICA”) statute, sections 766.301-316, Florida Statutes, which sets forth an administrative process for infants who sustain severe birth-related neurological injuries to establish their eligibility for NICA plan benefits. Emma Johnston suffered permanent and substantial physical impairments arising from her birth in 2007. To be eligible for statutory benefits under NICA, Emma — through her parents — need only show in the administrative hearing below that she also suffered a permanent and substantial mental impairment, all other pre-requisites having been established.

Ordinarily, the incentive under these circumstances would be for Emma’s parents to be supportive of their daughter’s eligibility for the statutory benefits, which would be provided with certainty for life without the risk inherent in bringing a medical malpractice case, which the NICA no-fault remedy displaces. Her parents (and NICA), however, opposed the efforts of intervenor Baptist Medical Center to establish that Emma’s mental impairments were both permanent and severe as the statute requires. One reason for the counter-intuitive behavior of the parties is reflected in a recent comprehensive study of Florida’s NICA system in conjunction with a similar program in Virginia. The study stated:

[I]n Florida, there has been a strong incentive to escape NICA’s jurisdiction and pursue remedies in the tort system for claims that families and their attorneys believe have strong chances of success as negligence actions. No cap on malpractice awards existed there until 2003, when a complicated sliding scale for non-economic damages was introduced. Thus, in Florida, considerably larger awards have been potentially available from juries in birth-related injury litigation. How the sliding scale will impact claiming behavior under NICA is unclear at this stage.

Gil Siegal, Michelle M. Mello & David M. Studdert, Adjudicating Severe Birth Injury Claims in Florida and Virginia: The Experience of a Landmark Experiment in Personal Injury Compensation, 34 Am. J.L. & Med. 493, 499 (2008) (footnote omitted).

In essence, a hospital or physician may be trying to push an injured child into the NICA program (to avoid a potential lawsuit) while the child’s parents are opposing that effort (to pursue a tort claim against the hospital or physician); indeed, a recent article provides twelve ways for potential claimants to avoid the NICA plan and pursue claims in circuit court. See Jon Gilbert, Twelve Ways to Avoid a Determination of NICA Compensability in a Medical Malpractice Case, 85 Fla. B.J. 42 (Dec.2011) (noting that “statutorily capped remedies provided by NICA are significant limitations compared to the potential damages at issue in circuit court” making it “important to verify that each case abated to NICA is appropriately before the ALJ.”). NICA is the gatekeeper stuck in the middle, attempting to meet its statutory purpose of providing benefits to a limited class of the most severely injured infants while concurrently maintaining the plan’s fiscal stability.

Given the competing incentives and dynamics, it is unsurprising that parties may seem to have lined up on the wrong sides of the playing field. That is what happened here, where the sole issue on appeal is whether the hospital’s evidence demonstrated that Emma’s mental impairments were permanent and substantial; the hospital says they were, the parents and NICA say they were not.

How to prove or disprove that these types of impairments exist in an infant and that they are permanent and substantial (versus some lesser standard such as long-lasting and significant), involves medical prognostications by experts who necessarily have only a temporally short medical history of the infant and a seemingly vast horizon of potential future outcomes. This type of assessment, if based on a one-time medical examination of the infant, is fraught with predictive perils. As the study stated:

Further complicating matters, assessments of both physical and mental disability call for prognosis of the child’s future condition and needs, an exercise that can be quite speculative and uncertain. The term “permanent” suggests that the disability is static over time, but some young children may improve physically and/or mentally as they develop. This possibility raises the question of whether to perform a reevaluation at a later time, as is routinely done in workers’ compensation, or to defer the evaluation for a year.

Siegel et al., supra, at 512 (footnote omitted). Adding more uncertainty to the dynamics of proof, the report notes that a “rigid adherence to a scientific standard of proof’ in the administrative process could “reduce eligible claims quite dramatically, and seriously undermine the programs’ ability to meet their objective of preempting tort claims.” Id. at 506. In other words, replicating tort standards of proof in the administrative forum could simply result in claimants preferring the tort system (particularly those with high-valued claims), which would defeat the “foundational objectives” of the program, a primary one of which is to “help stabilize the malpractice litigation environment ... by effectively wresting disputes over severe birth-related neurological injury, traditionally a tinderbox for medico-legal activity, from the courts.” Id. The report provides insights into how the Florida NICA program is structured and how it might be improved, but the question in this appeal is one of law and not of legislative policy.

Turning to the evidence admitted at trial, it showed generally that Emma has potentially long-term and significant mental impairments with no certainty of improvements; the gravity of her impairments is clearly momentous however the record is viewed. The dispute, however, centered on whether the impairments are “permanent” and “substantial,” which is why the hospital sought to admit as substantive evidence the contested second report of Dr. Trevor Resnick, a pediatric neurologist and the only physician in the proceeding who actually examined Emma (he did an independent medical examination when she was 3 1/2 years old). Dr. Resnick’s first report, which was admitted in evidence by stipulation, was less than unequivocal on whether Emma’s mental impairments were permanent and substantial, but his second concluded they were; the second report was much more detailed, noting that Emma exhibits “no communication skills” and “little if any comprehension, indicating the degree of her mental impairment.” The parents sought to undermine Dr. Resnick’s first report because he initially left open the question of Emma’s potential for progress; this reticence is less a reflection on his predictive ability and more about the enormous grey area of uncertainty any expert would face in making a one-time, conclusive prognosis at Emma’s tender age. As to this second report (which was admitted over objection but deemed hearsay and not used for fact-finding purposes), it appears that Emma’s attorneys knew about it in advance of the hearing, as they acknowledged that both the first and second reports had identical dates, which caused confusion for obvious reasons. But there is enough other confusion surrounding the attempted use of the second report as substantive evidence to render the administrative law judge’s decision to consider it hearsay a judgment call measured by the abuse of discretion standard. Maddox v. Dept. of Prof. Reg., 592 So.2d 717, 719 (Fla. 1st DCA 1991) (holding that hearing officer’s exclusion of evidence not an abuse of discretion). The better course may have been to admit the second report for all purposes, and give it the weight the administrative law judge felt it deserved; but the failure to do so, while a close call, is not reversible error under the standard by which this Court is bound.

Even if the disputed report was available for fact-finding purposes, it would ultimately fall upon the shoulders of the administrative law judge to decide whether the statutory requirement of a permanent and substantial mental impairment was met. This again is a discretionary judgment call in which the hospital’s evidence could be accepted or rejected by the administrative law judge, a determination that is deemed “conclusive and binding as to all questions of fact.” § 766. 311(1), Fla. Stat. While the evidentiary scales may appear from the appellate perch to tip in favor of one party versus another, it is generally improper to second-guess the fact-finder’s determinations to the contrary. Wallace Corp. v. City of Miami Beach, 793 So.2d 1134, 1140 (Fla. 1st DCA 2001). Admittedly, the administrative law judge all but wiped the evidentiary slate clean by relegating the second report to hearsay status, nullifying much of the hospital’s case. And referring to the prefatory language in the preamble of the NICA statute to conclude that a “substantial” impairment is akin to a “catastrophic” injury versus merely a “mild” or “moderate” one did not help matters; in doing so, the administrative law judge made this case an even closer call on appeal. But even if the second report had been considered for fact finding purposes, it is not clear from the record that the battle would have ended any differently. See § 59.041, Fla. Stat. (2012).


text:
    LARRY THACKER CONSTRUCTION, INC., Appellant, v. SDT, LLC, a Florida Limited Liability Company, and Regions Bank, an Alabama Corporation, Appellees.
    No. 1D13-1521.
    District Court of Appeal of Florida, First District.
    May 23, 2013.
    Mark D. Dreyer, Panama City, for Appellant, and Larry Thacker, pro se, Appellant.
    Bill R. Hutto, Panama City; Linda A. Hoffman of Carver Darden Koretzky Tes-sier Finn Blossman Areaux, Pensacola; and J. Christopher Barr of Burke Blue Hutchinson & Walters, P.A., Panama City, for Appellees (no appearances).
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.110ffl.

BENTON, C. J., RAY and MAKAR, JJ., concur.


text:
    Shana TISSIER, as Administrator ad Litem of the Estate of Kathleen D. Comstock, Appellant, v. Raymond F. TISSIER and E*Trade Securities, LLC, Appellees.
    No. 1D13-1655.
    District Court of Appeal of Florida, First District.
    May 23, 2013.
    James R. Green, of Green & Green Law Firm, P.A., Pensacola, for Appellant.
    Peter S. Fruin, of Maynard Cooper & Gale, P.C., Birmingham, AL, for Appellees.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.130(a)(4).

BENTON, C.J., RAY and MAKAR, JJ., concur.


author: PER CURIAM. GRIFFIN, J.,

text:
    In re Jane DOE, Appellant.
    No. 5D13-1804.
    District Court of Appeal of Florida, Fifth District.
    May 28, 2013.
    Bethanne Cutshall, of The Cutshall Law Firm, P.A., Satellite Beach, for Appellant.
   PER CURIAM.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

GRIFFIN, J., dissents, with opinion.

GRIFFIN, J.,

dissenting.

Appellant is a sixteen-year-old female who petitioned the circuit court, pursuant to Section 390.01114(4), Florida Statutes (2012), to have waived the statutory requirement that a parent be notified before the termination of her pregnancy. The statute allows for waiver of notice if the minor is sufficiently mature to make the decision without consulting the parent. Within the statute, there are seven factors specific to the minor for the court to consider in evaluating maturity, as well as the question of undue influence by a third party.

The trial court conducted a short hearing consisting of some eighteen pages of testimony. In summary, the minor testified as follows: She wished to terminate her pregnancy because at her age she was not ready for a child, and she wanted to finish high school and attend college. She is in the eleventh grade and is a “B’s and C’s” student. She wished to terminate the pregnancy without telling her mother (the only parent she lived with) because her mother is very religious, considers abortion to be murder and would oppose the procedure. If her mother found out, Appellant would be “disowned”, meaning that she would no longer have her mother’s help and support, and Appellant might have to leave the home.

When asked why Appellant thought her decision was responsible, she testified that she wanted to be fair to the child. She has no job and is in high school. “It would be significant for them [sic] to be brought up in this way.” The trial court asked, “[W]hy would you not want to have the child born and adopted?” She answered that she did not want to “hav[e] her child somewhere else” and then, later on in life, have another child. Nor did she think her mother should raise the child.

The trial court then asked if she believed there were no inherent risks with terminating the pregnancy that would outweigh the risk of going to full term. She said no. When asked if she had consulted with a medical professional, she said that she had not, but that she had found the information she needed on clinic- websites.

When the trial court asked her whether she had discussed terminating her pregnancy with anyone, she identified her boyfriend’s mother, who is a teacher at a school other than the one she attends. Her boyfriend had told her that he was “okay” with whatever she decided to do. The boyfriend’s mother offered her help. The trial court then expressed concern about “undue influence,” so the minor’s counsel offered to have the boyfriend’s mother testify. The sum total of her testimony is as follows:

COUNSEL: [C]an you tell me how long you have known the Petitioner?
WITNESS: Maybe four years casually, but pretty close the last few months.
COUNSEL: What would a few months be?
WITNESS: Maybe five or six.
COUNSEL: Okay. And what have you all had conversations about regarding this pregnancy specifically?
WITNESS: When I heard she was, my first question was, what does she want to do. So, and I was told she wanted to terminate it. And I said, “Does she know what she needs to do?” And I started getting on the internet, as I am prone to do, to find out, see if I could help her.
With her young age, I didn’t know whether she was savvy to what questions to ask and what to think about. So, I went on websites, and I said, “Here, call these numbers.”
I tried to stay out of it by saying, “Call these numbers, ask these questions.” You know, the place-the clinics she called weren’t real helpful.
On the website it said that she should go first to a clinic and then be in a courtroom. But then when she called the clinic, it did not say that. It said, “We need to have permission before we see you.” So, we had thought one way and were told a different way.
COUNSEL: And what would be your position at this point if she told you that she wanted to- continue with the pregnancy until full term?
WITNESS: I’d be okay with it. It’s— I’m okay with her decision, whichever she wants to do.
COUNSEL: And do you know her parents?
WITNESS: Never met them. Not on purpose, just hasn’t happened.
COUNSEL: And these last four or five months, I assume you’ve gotten to know her because she’s spent more time at your house?
WITNESS: Yes.
COUNSEL: And how old is your son? Seventeen?
WITNESS: Uh, he’ll be — no, he’s not seventeen.
COUNSEL: Sixteen?
WITNESS: No.
COUNSEL: Eighteen?
PETITIONER: Eighteen.
THE COURT: Just turned eighteen?
WITNESS: Uh-huh.
COUNSEL: And as far as her ability to accept responsibility for this, have you all had that discussion?
WITNESS: I believe that was my initial view of it by giving her numbers and saying, ‘You need to make the phone calls.” I was — I was trying to stay out of it because — because of the nature of the age.
THE COURT: Do you have any additional questions?
DIRECT EXAMINATION:
COUNSEL: Have you had any discussions with [Appellant] about the medical procedures or any risks inherent with the procedure?
WITNESS: We started one — a conversation. And I said, you know, let’s — we can take it a step at a time. We can take, you know, this information and then do the next step with the next information, talked about it, said it’s all on a website.
You can look at it, you can read it, it tells you everything you need to know and what to expect. Did that answer your question?
COUNSEL: In your opinion, does she understand those risks?
WITNESS: Yes.
COUNSEL: And in your opinion, have you had any — if I may rephrase? Have you had any discussions about long-range consequences, either physically to her person or emotionally and—
WITNESS: Yes.
COUNSEL: And in your opinion, as a result of those conversations, do you believe that she’s anticipated and evaluated those consequences?
WITNESS: Yes.

At the close of testimony, the trial court denied the petition. Four reasons were articulated by the trial court: First, the court said, “I’m not sure you understand the risks of terminating your pregnancy. I thought I heard you say there wasn’t a risk and it’s no different than carrying a child to term.” Second, the minor had had no medical advice or exam to verify that she was healthy enough to have a termination of pregnancy. Third, she had not sought the advice of clergy nor one of her own teachers. Fourth, she was the victim of undue influence by the mother of the boy who got her pregnant. Upon hearing this, counsel moved to have the hearing briefly continued so that Appellant could get this additional third-party consultation that the trial court considered essential. The trial court refused.

I begin with the fact that this sixteen-year-old girl has important constitutional rights applicable to her petition, including the right of privacy in making the termination decision. Indeed, our supreme court has said that this is one of the most personal and private decisions a person can make. In re T.W., 551 So.2d 1186, 1192 (Fla.1989). It can only be interfered with if Appellant is judicially determined to lack the maturity to make it. I recognize that, by writing, I may put her right to privacy in this matter even more at risk, but I do so for two reasons: First, the trial court abused its discretion in denying the petition. Second, for the next girl standing in Appellant’s shoes, it is important for her to have a sense of the obstacles that she may face in this district.

As for the trial court’s first stated reason that Appellant lacks the maturity to decide this issue on her own, it cites her testimony that the risk of abortion would not outweigh the risk of carrying a child to term, suggesting that she doesn’t know what she is talking about. But she is right. This has been a judicially established fact ever since In re T.W., 551 So.2d at 1195; see also North Florida Women’s Health and Counseling Services v. State, 866 So.2d 612, 634 (Fla.2003). I would also have thought it to be a matter of common knowledge.

Second, the trial court criticizes Appellant for failing to seek medical advice, but other courts have rightly rejected this “reason.” The First District Court of Appeal noted in In re Doe, 921 So.2d 753, 756 (Fla. 1st DCA 2006):

That she had not yet, at the time of the hearing, personally discussed the ramifications of a termination of pregnancy with medical professionals does not distinguish her from many other similarly situated women, both minors and adults, and any suggestion by the trial court that she is unable to determine the potential risks and ramifications is without support in the record.

See also In re Doe, 967 So.2d 1017, 1019 (Fla. 4th DCA 2007). Add to that, in this case, the testimony that when Appellant attempted to contact the clinics, she was told that they could not see her until she had gotten the waiver.

The third reason given by the trial court was perhaps the worst of all. It faulted her for not having spoken to clergy or a teacher about her decision; but the whole point of the right to privacy in this very special situation is the right NOT to talk about it to other people, especially people who are not close, or who may not be useful, or who may not be trustworthy. There may have been no one else that she felt comfortable discussing her secret with. The trial court seemed to suggest that it was immature of the minor not to seek out other points of view, but the minor testified that she got what she needed from her internet searches. There is simply no evidence in this record that she was not fully awai'e of the ramifications of what she proposed to do.

Finally, there is the finding of undue influence. Other courts have said that seeking help from a trusted adult, even if the adult is the parent of the father, is a positive thing. See In re Jane Doe 06-A, 932 So.2d 499, 500 (Fla. 1st DCA 2006). I recognize that a sixteen-year-old in Appellant’s situation can be “unduly” influenced or pressured to make a decision she might not make in a vacuum, but the fact that a parent of the child’s father is consulted does not indicate undue influence. There must be some evidence of undue influence. In re Doe, 967 So.2d 1017 at 1019. In this case, there is simply no evidence of undue influence. None. Not from the Appellant or the boyfriend’s mother. To the contrary, the evidence was that her boyfriend supported whatever decision she made, and the boyfriend’s mother was okay with Appellant’s decision either way. No other suggestion appears in the record. The boyfriend’s mother’s agreement to pay for the procedure may well have nothing to do with her view of the wisdom of terminating the pregnancy. The trial court may get to make the calls on demeanor and credibility, but there has to be some word, some fact on which to base an undue influence finding. Otherwise, as here, the decision to deny the waiver is an abuse of discretion, and the decision should be reversed. It was also an abuse of discretion to refuse the motion for a short continuance to allow Appellant to do the necessary to assuage the trial court’s stated concerns, even if it meant talking to people she shouldn’t have to consult.

Because this decision is not being reversed, I hope that the foregoing will inform future petitioners about what may be persuasive to the judges in this district, and I hope that this petitioner will forgive that I have written this and perhaps have further endangered the right she sought to protect.


author: SUAREZ, J.

text:
    Bartholomew J. COIA, Appellant, v. The BANK OF NEW YORK MELLON, Appellee.
    No. 3D13-40.
    District Court of Appeal of Florida, Third District.
    May 29, 2013.
    Coia, Sutton & Blinderman and Scott H. Levine, Weston, for appellant.
    Greenspoon Marder and Victor Kline, Orlando, for appellee.
    Before SUAREZ, ROTHENBERG and SALTER, JJ.
   On Confession of Error

SUAREZ, J.

Upon the appellee’s well received confession of error, we reverse the trial court’s order dated December 5, 2012, denying the appellant’s motion to quash service of process. We remand the cause to the trial court and instruct it to quash the subject service of process,