source: Caselaw Access Project

author: ROTHENBERG, J.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Robert WASHINGTON, et al., Appellees.
    No. 3D11-2244.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.

      Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and John Eddy Morrison and Daniel Tib-bitt, Assistant Public Defenders, for appel-lees.
    Greenberg Traurig and Elliot H. Scherker; and Karen M. Gottlieb for Florida Association of Criminal Defense Lawyers and the Miami Chapter of the Association of Criminal Defense Lawyers, as amicus curiae.
    Before SUAREZ, ROTHENBERG, and EMAS, JJ.
   ROTHENBERG, J.

On May 17, 2006, this Court issued its opinion in Taylor v. State, 929 So.2d 665 (Fla. 3d DCA 2006), review denied, 952 So.2d 1191 (Fla.2007), rejecting Taylor’s facial constitutional challenge to section 893.13, Florida Statutes (2003), as amended by section 893.101, Florida Statutes (2003). Nearly five years later, the trial court below dismissed criminal felony charges against thirty-nine defendants and issued a lengthy order attempting to justify its decision to ignore Taylor, as well as other binding decisions from the district courts of appeal in this state, and instead, to adopt a contrary, non-binding decision issued by a federal trial court judge. In reversing the order under review, we reject the trial court’s contention that the issues raised in the instant cases were not previously raised and decided by this Court; reject the trial court’s conclusion that it was bound by the federal trial court’s decision; and agree with counsel for both the appellant and the appellees that the trial court’s analysis and reasoning is flawed.

PROCEDURAL HISTORY

Section 893.13 prohibits the unauthorized possession, purchase, sale, manufacture, or delivery of a controlled substance; and the possession with intent to purchase, sell, manufacture, or deliver a controlled substance. In 2002, in response to the Florida Supreme Court’s interpretation of the statute in Chicane v. State, 684 So.2d 736 (Fla.1996), and later in Scott v. State, 808 So.2d 166 (Fla.2002), in which it held that knowledge of the nature of the substance was an element of these drug offenses, the Florida legislature enacted section 893.101.

893.101 Legislative findings and intent.—
(1) The Legislature finds that the cases of Scott v. State, Slip Opinion No. SC94701 [808 So.2d 166] (Fla.2002) and Chicane v. State, 684 So.2d 736 (Fla.1996), holding that the state must prove that the defendant knew of the illicit nature of a controlled substance found in his or her actual or constructive possession, were contrary to legislative intent.
(2) The Legislature finds that knowledge of the illicit nature of a controlled substance is not an element of any offense under this chapter. Lack of knowledge of the illicit nature of a controlled substance is an affirmative defense to the offenses of this chapter.
(3) In those instances in which a defendant asserts the affirmative defense described in this section, the possession of a controlled substance, whether actual or constructive, shall give rise to a permissive presumption that the possessor knew of the illicit nature of the substance. It. is the intent of the Legislature that, in those cases where such an affirmative defense is raised, the jury shall be instructed on the permissive presumption provided in this subsection.

After the legislature’s clarification of its legislative intent, that knowledge of the nature of the substance is not an element of the offense, but rather an affirmative defense that may be raised by the defendant, constitutional due process challenges were raised and ultimately rejected by the appellate courts across the state. See e.g., Williams v. State, 45 So.3d 14 (Fla. 1st DCA 2010); Johnson v. State, 37 So.3d 975 (Fla. 1st DCA 2010); Harris v. State, 932 So.2d 551 (Fla. 1st DCA 2006); Taylor, 929 So.2d at 665; Tolbert v. State, 925 So.2d 1148 (Fla. 4th DCA 2006); Wright v. State, 920 So.2d 21 (Fla. 4th DCA 2005); Smith v. State, 901 So.2d 1000 (Fla. 4th DCA 2005), review denied, 928 So.2d S36 (Fla.2006); Burnette v. State, 901 So.2d 925 (Fla. 2d DCA 2005).

On July 27, 2011, a federal trial court judge issued a ruling in Shelton v. Department of Corrections, 802 F.Supp.2d 1289 (M.D.Fla.2011), finding that although lack of knowledge is an affirmative defense to the offenses in section 893.13, because the statute does not include knowledge of the illicit nature of the substance as an element of the offense, the statute creates strict liability crimes. Thus, the federal district court analyzed the statute’s constitutionality under the three-part test established in Staples v. United States, 511 U.S. 600, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994), and concluded the statute violated federal constitutional due process.

Although the challenges raised by the thirty-nine defendants below were raised in Taylor and other cases decided across the state, the trial judge, who “presumed” these cases were decided on state constitutional due process grounds, not federal constitutional due process grounds, concluded they were not binding on him. Instead, the trial judge concluded he was bound by the federal district court’s decision in Shelton. The record, however, reflects that the trial judge’s assumption was incorrect, and counsel for the defendants concedes on appeal that the only federal court whose decisions bind state courts is the United States Supreme Court. See State v. Dwyer, 332 So.2d 333, 335 (Fla.1976) (“A decision of a Federal District Court, while persuasive if well reasoned, is not by any means binding on the courts of the state.”); see also Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 11, 107 S.Ct. 1519, 95 L.Ed.2d 1 (1987) (“When federal courts interpret state statutes in a way that raises federal constitutional questions, ‘a constitutional determination is predicated on a reading of the statute that is not binding on state courts and may be discredited at any time.’ ”) (citation omitted); Zakrzewska v. New Sch., 574 F.3d 24, 27 (2d Cir.2009) (stating that “a decision from our Court is binding only within the federal courts of our Circuit”); Doe v. Pryor, 344 F.3d 1282, 1286 (11th Cir.2003) (“The only federal court whose decisions bind state courts is the United States Supreme Court.”); People v. Williams, 16 Cal.4th 153, 66 Cal.Rptr.2d 123, 940 P.2d 710, 736 (1997) (holding that decisions of lower federal courts interpreting federal law are not binding on state courts).

THE TRIAL COURT’S ORDER

A. The trial court’s failure to follow the law

Counsel for the defendants candidly concedes on appeal that the trial court’s presumptions, analysis, and conclusions were completely erroneous, but he agrees with the result. The result, however, was a dismissal of the charges based on the defendants’ facial constitutional challenge despite binding precedent from this Court and other district courts of appeal. That result can never be “the correct result.” The correct result would have been to deny the motions to dismiss on the authority of Taylor. The trial court was then free to express its disagreement with Taylor and to request reconsideration of the holding in Taylor en banc. While a lower court is free to disagree and to express its disagreement with an appellate court ruling, it is duty-bound to follow it. As the Florida Supreme Court has repeatedly articulated, “[t]he decision of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980). “Thus, in the absence of interdistrict conflict, district court decisions bind all Florida trial courts.” Pardo v. State, 596 So.2d 665, 666 (Fla.1992).

The purpose of this rule was explained by the Fourth District in State v. Hayes:
The District Courts of Appeal are required to follow Supreme Court decisions. As an adjunct to this rule it is logical and necessary in order to preserve stability and predictability in the law that, likewise, trial courts be required to follow the holdings of higher courts — District Courts of Appeal ... if the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it.

Pardo, 596 So.2d at 666-67 (quoting State v. Hayes, 333 So.2d 51, 53 (Fla. 4th DCA 1976)); see also Dwyer, 332 So.2d at 335 (“Where an issue has been decided by the Supreme Court of the State, the lower courts are bound to adhere to the Court’s ruling when considering similar issues, even though the court might believe that the law should be otherwise.”).

B. The trial court’s justification for failing to follow binding precedent

Perhaps recognizing its mandate to follow the law, the trial court justified its failure to do so based on a false “presumption” that, even if true, would not have provided the justification sought. The “presumption” relied on by the trial court was that although this Court in Taylor and the other district courts, such as the First District in Johnson and Harris, the Second District in Burnette, and the Fourth District in Wright, rejected facial challenges to the constitutionality of section 893.13, as amended by section .893.101, on due process grounds, none of these cases “particularizes the source of due process upon which it relies.”

Thus, the trial court reasoned: -

In the absence of such particularization I am obligated as a Florida trial court to presume that Florida appellate courts relied upon a Florida-law-based guarantee of due process.... No Florida case has decided the issue presently before me: whether § 893.13 is unconstitutional by operation of the Hth Amendment to the Federal Constitution.

(first emphasis added).

First, the relied on presumption was erroneous. Although the Taylor opinion makes no specific reference as to whether the analysis was performed under Florida or federal constitutional due process, a review of the briefs provided in the appellate record reflect that the claims and due process analysis were predicated on both the state and federal constitutions. Taylor, in his initial brief, prefaced his due process claim on the fundamental right under both federal and Florida law that no person shall be deprived of life or liberty without full due process of law; relied on a number of United States Supreme Court opinions addressing federal due process law; and argued these cases were controlling. The State’s response specifically addressed Taylor’s due process arguments, arguing that “the statute does not violate the due process clauses of the Florida and United States Constitutions.”

Second, the First District specifically relied on both Florida and United States Supreme Court cases in addressing the substantive due process claim raised by the defendant in Johnson, 37 So.3d at 975; the Second District cited to United States Supreme Court case law in defining the due process requirements in Burnette, 901 So.2d at 927; and the Fourth District specifically referenced both the Florida constitution and the Fifth Amendment due process clause of the United States constitution in performing its due process analysis in Wright, 920 So.2d at 24.

More importantly, whether this Court or the other district courts of appeal examined the facial constitutional due process challenges to this statute only under Florida law, or additionally considered federal law, is irrelevant. First, the due process provision of Florida’s constitution is patterned after the due process provision of the federal constitution. D.P. v. State, 705 So.2d 593, 599 (Fla. 3d DCA 1997); see also Cash v. Culver, 122 So.2d 179, 182 (Fla.1960). Second, it is a clear tenet under our system of government that while states may place more rigorous restraints on government intrusion than required by the federal constitution, statutes, or case law, states may not limit personal freedoms beyond that which the federal constitution permits. See Warner v. City of Boca Raton, 887 So.2d 1023, 1030 (Fla.2004) (“In interpreting the scope of constitutional rights, this Court has stated that in any state issue, the federal constitution represents the ‘floor’ for basic freedoms, and the state constitution represents the ‘ceiling.’ ”). The Florida Supreme Court explained:

[O]ur system of constitutional government in Florida is grounded on a principle of “robust individualism” and that our state constitutional rights thus provide greater freedom from governmental intrusion into the lives of citizens than do their federal counterparts:
Federal and state bills of rights thus serve distinct but complementary purposes. The federal Bill of Rights facilitates political and philosophical homogeneity among the basically heterogeneous states by securing, as a uniform minimum, the highest common denominator of freedom that can prudently be administered throughout all fifty states. The state bill of rights, on the other hand, express the ultimate breadth of the common yearnings for freedom of each insular state population within our nation.... [T]he federal Constitution ... represents the floor for basic freedoms; the state constitution, the ceiling.

Armstrong v. Harris, 773 So.2d 7, 17 (Fla.2000) (quoting Traylor, 596 So.2d at 962).

Thus, if this Court concluded in Taylor that section 893.13, as amended by section 893.101, did not violate Florida constitutional due process guarantees, then it necessarily follows that the amended statute also passed federal constitutional due process muster.

C. The trial court relied on Shelton, a flawed federal trial court order

Rather than apply Florida decisional law, the trial court, instead, incorrectly concluded it was bound by an order issued by a federal trial court, and even if not bound, found the federal order persuasive. Specifically, the trial court found persuasive the Shelton court’s findings that: (1) section 893.13, as amended, creates strict liability crimes; (2) the due process challenge to section 893.13 must be analyzed under Staples; and (3) the statute fails under the Staples test. As was the federal trial court’s order, the circuit court trial judge’s analysis and conclusions are similarly flawed.

1. Section 893.13, as amended, does not create strict liability crimes.

In its order, the trial court boldly states: “[T]hat § 893.13 defines strict liability crimes is really not open to discussion.” The trial court is incorrect. A strict liability statute imposes criminal liability regardless of fault. For example, statutory rape is a strict liability crime. See §§ 794.05, .021, Florida Statutes (2012); Hodge v. State, 866 So.2d 1270, 1272 (Fla. 4th DCA 2004) (“[T]he legislature left no doubt as to its intention that [section 794.021] be treated as a strict liability crime for which the State was not required to prove scienter ... [and] unequivocally provides that ignorance is not a defense to the crime[.]”). Under section 794.05, “[a] person 24 years of age or older who engages in sexual activity with a person 16 or 17 years of age commits a felony of the second degree.” These statutes do not require the State to prove the defendant’s knowledge of the minor’s age, and ignorance or belief as to the minor’s age is no defense.

Section 893.13 does not create strict liability crimes because, although scienter, or “mens rea,” is not an element of these offenses, the statute provides that the defendant’s lack of knowledge may be raised as an affirmative defense. See Flagg v. State, 74 So.3d 138, 141 (Fla. 1st DCA 2011). For a strict liability offense, lack of knowledge is not an available defense. See Kennedy v. Louisiana, 554 U.S. 407, 423, 128 S.Ct. 2641, 171 L.Ed.2d 525 (2008) (concluding that because mistake regarding the minor’s age was not a defense, the statute imposed strict liability); Levinson, Laurie L., Good Faith Defenses: Reshaping Strict Liability Crimes, 78 Cornell L. Rev. 401, 417 & n. 86 (1993) (defining strict liability as “absolute liability” where not only is there no mens rea element, there also is no mens rea defense).

Section 893.13, instead, creates general intent crimes. See Wright, 920 So.2d at 24 (“The statute does two things: it makes possession of a controlled substance a general intent crime ... and, second, it allows a defendant to assert lack of knowledge as an affirmative defense.”). Because, the premise upon which the trial judge relied was incorrect, so too was his analysis.

2. The analysis performed in Staples and the trial court are inapplicable to section 893.13.

As counsel for the defendants candidly concedes on appeal, the Staples analysis applied by the Shelton court and relied on by the trial court has no applicability in analyzing section 893.13 under the defendants’ constitutional due process challenge. Unlike section 893.13, the Staples Court was tasked with the responsibility of construing a statute that was silent concerning the mens rea required to violate the statute. Staples, 511 U.S. at 605, 114 S.Ct. 1793. In its analysis, the Staples Court noted that, in prior cases, it had concluded that “some indication of congressional intent, express or implied, is required to dispense with mens rea as an element of a crime ... [and] we have inferred from silence that Congress did not intend to require proof of mens rea to establish an offense.” Id. at 606, 114 S.Ct. 1793. When the Staples Court interpreted “whether congressional silence concerning the mental element of the offense should be interpreted as dispensing with conventional mens rea requirements,” it generally “relied on the nature of the statute and the particular character of the items regulated.” Id. at 607,114 S.Ct. 1793.

After performing its analysis, the Staples Court examined the severity of the punishment, the attendant social stigma, and whether the statute punishes inherently legal activity, and concluded Congress did not intend to dispense with mens rea as an element to the statute at issue. The Court also noted that its “holding is a narrow one ... [and its] reasoning [was based] upon a commonsense evaluation of the nature of the particular device or substance Congress has subjected to regulation and the expectations that individuals may legitimately have in dealing with the regulated items.” Id. at 619, 114 S.Ct. 1793. The Staples Court, therefore, concluded that based on the penalty to be imposed, Congress did not intend to eliminate mens rea as an element of the offense. Id.

The Staples “test” was crafted to assist courts in interpreting legislative intent when a statute is unclear as to whether mens rea is an element of the offense, not to analyze the constitutionality of a statute. Because the legislative intent in section 893.13 is clear, the Staples test is inapplicable, and the trial court’s lengthy analysis of the statute under Staples was erroneous.

THE DEFENDANTS’ DUE PROCESS CHALLENGE

In Taylor, this Court previously upheld the constitutionality of section 893.13, as amended, in a facial challenge brought under due process concerns identical to those raised in the thirty-nine motions filed in the trial court below and raised here on appeal. This panel is not free to disregard, or recede from, that decision; only this Court, sitting en banc, may recede from an earlier opinion. We, however, do note that while “criminal sanctions are ordinarily reserved for acts of intentional misconduct,” State v. Giorgetti 868 So.2d 512, 516 (Fla.2004), the legislature, and other legislative bodies, in the exercise of their sovereign police powers, have in very limited circumstances enacted criminal statutes which do not include mens rea as an element of the offense, and these statutes, when legislative intent is clearly stated, have withstood constitutional challenge.

For example, the Florida Supreme Court upheld the constitutionality of sections 794.05 and 794.021, imposing strict liability for statutory rape where mens rea is not an element of the offense, and lack of knowledge or mistake may not be raised as an affirmative defense. Similarly in D.P., 705 So.2d at 598, this Court concluded that an anti-graffiti ordinance enacted by Miami-Dade County did not offend due process under either the Florida or the federal constitution. The ordinance in question imposed criminal penalties for a minor’s possession of spray paint or jumbo markers without requiring the State to prove the minor had any criminal intent. Id. at 595. In rejecting D.P.’s facial due process challenge, this Court noted the lower court’s finding that no fundamental right was implicated, and thus the Court’s review was limited to the rational basis test. This Court concluded that the legislation was rationally related to a legitimate governmental purpose (to control the blight of graffiti), and the ordinance was less restrictive than measures imposed and upheld in a similar case. Id. at 597; see also Forfeiture of 1969 Piper Navajo, 592 So.2d 233, 235 (Fla.1992) (holding that due process requires that the penal statute shall not be unreasonable, arbitrary, or capricious, and the means - selected by the legislature must bear a reasonable and substantial relation to the purpose sought to be attained, thus the question of due process as applied to a penal statute is whether the provision is rationally related to its purpose).

The United States Supreme Court simultaneously dealt with similar due process challenges to a federal statute prohibiting the sale or delivery of opium and cocaine where the statute did not require intent or knowledge as an element of the offense in United States v. Behrman, 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619 (1922), and United States v. Balint, 258 U.S. 250, 42 S.Ct. 301, 66 L.Ed. 604 (1922). In rejecting Balint’s due process challenge, the United States Supreme Court stated: “It has been objected that punishment of a person for an act in violation of law when ignorant of the facts making it so, is an absence of due process of law. But that objection is considered and overruled in Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 30 S.Ct. 663, 54 L.Ed. 930 [ (1910) ].” Balint, 258 U.S. at 252, 42 S.Ct. 301. The “manifest purpose is to require every person dealing in drugs to ascertain at his peril whether that which he sells comes within the inhibition of the statute, and if he sells the inhibited drug in ignorance of its character, to penalize him.” Id. at 254, 42 S.Ct. 301.

Additionally, a party challenging the facial constitutionality of a statute must establish that there is “no set of circumstances” under which the statute would be valid. United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697 (1987). Clearly, in most situations, the defendant is fully aware that the substance he is manufacturing, purchasing, selling, or has in his possession, is a controlled substance, and, therefore, a facial challenge to section 893.13 should fail under a Salerno analysis.

CONCLUSION

The due process facial challenge raised in the instant cases was previously raised and decided by this Court in Taylor and by the other district courts of appeal in this state in Williams, Johnson, Harris, Tolbert, Wright, Smith, and Burnette. The trial court was therefore duty-bound to follow binding precedent, not ignore it.

Reversed.

      . Nat'l Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124 (7th Cir.1995).


author: LAGOA, J.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. Alexandra IFERGANE and Haim Michael Ifergane, Appellees.
    Nos. 3D10-1195, 3D09-3293.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2012.
    Rehearing Denied Nov. 30, 2012.

      Abbey, Adams, Byelick, Kiernan, Mueller, Marone & Samis and Scot E. Samis, St. Petersburg; Methe & Rockenbach and Kara B. Rockenbach, West Palm Beach, for appellant.
    Ligman Martin and Michael R. Seward; Timothy H. Crutchfield, Miami, for appel-lees.
    Before SUAREZ, LAGOA, and EMAS, JJ.
   LAGOA, J.

In this consolidated appeal, Citizens Property Insurance Corporation (“Citizens”) seeks review of the following three trial court orders: (1) an order granting, with prejudice, Alexandra Ifergane’s motion to be dismissed as a party; (2) an order granting Haim Ifergane’s motion for partial summary judgment as to coverage; and (3) the subsequent order of final judgment in favor of Haim Ifergane. For the reasons set forth below, we affirm the first order, but reverse the second and third orders.

1. FACTUAL AND PROCEDURAL HISTORY

In 2004, Haim and Alexandra Ifergane, husband and wife (“Haim” and “Alexandra”), jointly purchased a residential property on Venetian Drive in Miami Beach, Florida (“the Property”). The Property, which the Iferganes intended to renovate before moving in, was insured by Citizens under a wind-only dwelling policy. Alexandra was the only named insured on the policy.

The applicable provisions of the policy provide:

4. Your Duties After Loss. In case of a loss to covered property, you must:
b. Take the following steps:
(1) Protect the property from further damage; and
(2) Make reasonable and necessary repairs to protect the property;
c. As often as we reasonably require:
(1) Show us the damaged property;
(2) Provide us with records and documents we request and permit us to make copies; and
(3) Submit to examinations under oath while not in the presence of any other named insureds and sign the same;
Under the terms of the policy, the terms “you” and “your” referred to both the “named insured” and “the spouse if a resident of the same household.”

On October 25, 2005, the Property sustained damage caused by Hurricane Wilma. The Iferganes notified Citizens of the loss within a week, and Citizens began its investigation of the claim.

On November 17, 2005, Alexandra filed for divorce from Haim. As part of a marital settlement agreement, Alexandra executed a quit claim deed on April 4, 2006, assigning to Haim “all the right, title, interest, claim and demand which [she] has in and to the ... [Property]” (hereinafter the “Assignment”).

Citizens made an initial payment on the Hurricane Wilma claim in the amount of $44,955.08. Thereafter, Citizens became concerned that the Property had suffered additional damage that was not covered under the policy and sought to take examinations under oath (“EUOs”) of Haim and Alexandra. Citizens also requested a sworn proof of loss. Citizens sent Alexandra two letters reminding her of the policy exclusions and her duty to mitigate property damage, and reserving its right to deny coverage. Haim complied by providing a sworn proof of loss and sitting twice for an EUO. However, Alexandra refused to comply with Citizens’ requests that she attend an EUO, asserting she was not obligated to do so because she had assigned to Haim all of her rights and interest in the Property.

On March 31, 2008, Citizens notified Alexandra that it could not complete its investigation or determine coverage for the claim because she had not appeared at the requested EUOs. The letter indicated that since it was unclear whether she and Haim were residing in the house together on the date of loss, and because Citizens had not consented to her assignment of the claim, it could not determine whether Haim was an insured under the policy.

On April 8, 2008, Haim made a demand under the policy for appraisal. In response, Citizens in May of 2008 filed an action for declaratory judgment .against the Iferganes, seeking a determination regarding its coverage obligations. As to Alexandra, Citizens’ complaint demanded a declaratory judgment as follows: to determine the validity of the Assignment; to declare that the Assignment does not relieve Alexandra of her policy obligations; to declare that Alexandra is obligated to appear for an EUO and comply with other policy conditions; “to determine the effect of [Alexandra’s] ... breach of the policy” by failing to appear for an EUO and comply with other policy conditions; to declare that the Iferganes failed to mitigate their damages and make temporary repairs to the Property, which constituted a breach of the policy; and to declare that the Iferganes representation that the Property was “tenant occupied” was a material misrepresentation voiding the policy.

Alexandra moved to dismiss the complaint, claiming that because she had assigned to Haim “all her rights and interest (including any insurance claims) via Quit Claim Deed” to the Property, she was not a party in interest. The motion was denied.

Alexandra then moved for summary judgment, requesting that the trial court determine that the Assignment was valid. Citizens also moved for summary judgment, requesting that the trial court determine that Alexandra’s failure or refusal to comply with her policy duties constituted a breach of contract precluding recovery under the policy as a matter of law.

Haim filed a cross-motion for partial summary judgment against Citizens on the coverage issue. Halm argued that the undisputed facts established he was a resident spouse co-insured under the policy, that he had complied with the policy’s post-loss requirements, and that Alexandra’s alleged failure to comply could not be imputed to him, an innocent co-insured, and therefore no breach of contract had occurred as a matter of law.

In October 2008, the trial court granted Alexandra’s motion for partial summary judgment, finding that “the Iferganes intended to transfer interest in the insurance claim from marital property to Haim Ifer-gane.” The trial court’s order, however, did not dismiss Alexandra as a party.

In March 2009, Citizens filed an amended complaint for declaratory relief seeking a declaration as to whether there was a valid and legal assignment of the claim, and if so, whether such assignment relieved Alexandra of her contractual obligations under the policy. The amended complaint alleged no new facts with respect to the validity of the Assignment and contained a prayer for relief identical to that contained in the original complaint. Alexandra again moved to dismiss based on the Assignment of all her rights to Haim, and additionally based on the fact that she never made a claim for insurance proceeds. The trial court granted Alexandra’s motion to dismiss with prejudice.

In addition, Citizens’ prior motion for summary judgment relating to Alexandra’s policy duties was denied, and Haim’s motion for partial summary judgment as to coverage was granted. Haim then moved to compel appraisal, which was granted. After an appraisal award of $476,594.61 was returned, the trial court entered an order of final judgment, confirming the appraisal award (with some stipulated changes), and awarding prejudgment interest, costs and attorney’s fees. This appeal ensued. We address each issue raised on appeal.

II. ANALYSIS

1. The order granting, with prejudice, Alexandra Ifergane’s motion to be dismissed as a party.

With regard to the first issue raised, Citizens argues that the trial court abused its discretion when it granted Alexandra’s second motion to dismiss, where Alexandra had assigned “all the right, title, interest, claim and demand which [she] has in and to the ... [Property]” to Haim and the trial court previously had determined (on Alexandra’s motion for partial summary judgment) that the Assignment was valid.

We find that the trial court did not abuse its discretion. Citizens’ amended complaint alleged no new facts and sought no new relief with respect to Alexandra and the Assignment. The validity of the Assignment was already adjudicated in the trial court’s order granting partial summary judgment, and no justiciable controversy remained between the parties on that issue.

“[T]he test for the sufficiency of a complaint for declaratory judgment is not whether the plaintiff will succeed in obtaining the decree he seeks favoring his position, but whether he is entitled to a declaration of rights at all.” Meadows Cmty. Ass’n, v. Russell-Tutty, 928 So.2d 1276, 1279 (Fla. 2d DCA 2006); see also Laganella v. Boca Grove Golf & Tennis Club, Inc., 690 So.2d 705, 706 (Fla. 4th DCA 1997). A plaintiff is entitled to a declaration where: (1) there is “a bona fide, actual, present practical need” for the declaration; (2) the declaration sought deals with “a present, ascertained or ascertainable state of facts or present controversy as to a state of facts;” (3) an “immunity, power, privilege or right” of the plaintiff depends on the facts or the law that applies to the facts; (4) some persons have an “actual, present, adverse and antagonistic interest” in the subject matter; (5) all persons with an adverse and antagonistic interest are before the court; and (6) the declaration sought does not amount to mere legal advice. Meadows Cmty. Ass’n, 928 So.2d at 1279 (quoting May v. Holley, 59 So.2d 636, 639 (Fla.1952)). “When declaratory relief is sought, all persons may be made parties who have or claim any interest which would be affected by the declaration.” § 86.091, Fla. Stat. (2011).

Citizens was not entitled to declaratory relief against Alexandra because she had no “actual, present, adverse and antagonistic interest” in the subject matter of the amended complaint, which sought to define Citizens’ obligations with respect to the insurance policy and claim for benefits related to Hurricane Wilma. Pursuant to the parties’ Marital Settlement Agreement, Alexandra assigned “all the right, title, interest, claim and demand which [she] has in and to the ... [Property]” to Haim. Post-loss insurance claims are freely assignable without the consent of the insurer. See Lexington Ins. Co. v. Simkins Indus., Inc., 704 So.2d 1384 (Fla.1998); see generally 30B Fla. Jur. 2d Insurance § 1670 (West, current as of Feb. 2012). In Florida, the intent of the parties determines the existence of an assignment. See Boulevard Nat’l Bank of Miami v. Air Metal Indus., Inc., 176 So.2d 94, 97 (Fla.1965) (identifying assignor’s intent to transfer rights or benefits and assignee’s acceptance thereof for good consideration as elements of an assignment); see generally 17 Fla. Prac. Insurance Law § 5:4 (West, current as of Nov. 2011). In the order granting partial summary judgment, entered prior to the filing of Citizens’ amended complaint and Alexandra’s second motion to dismiss, the trial court found that “[t]he Iferganes intended to transfer interest in the insurance claim (Wilma/Venetian) from marital property to Haim If-ergane.” Thus, Alexandra’s assignment of the insurance claim to Haim was valid.

Citizens points to Bethel v. Security National Insurance Co., 949 So.2d 219 (Fla. 3d DCA 2006), Allstate Insurance Co. v. Conde, 595 So.2d 1005 (Fla. 5th DCA 1992), and Independent Fire Insurance Co. v. Paulekas, 633 So.2d 1111 (Fla. 3d DCA 1994), as prohibiting Alexandra’s dismissal from the underlying declaratory judgment action. Significantly, these cases did not involve assignments. Bethel was an appeal of a final summary judgment determining that the plaintiff-insurer was under no obligation to pay benefits related to an automobile accident. 949 So.2d at 220. After reversing the summary judgment, the court observed that the insurer did not join a co-insured (the tortfeasor’s wife) in the underlying litigation and commented that the declaratory judgment statute required all persons with “an actual, present, adverse, and antagonistic interest in the subject matter” to be before the court. Id. at 223. Because the co-insured was a potential claimant under the liability insurance policy, any coverage determination would affect her interests and her joinder was necessary. See id. In Conde, the court acknowledged that injured parties possessed of a potential claim against an insured “are ... essential parties [to the insurer’s declaratory action] if they are to be bound by the coverage decision.” Conde, 595 So.2d at 1008 n. 6. Similarly, the Paulekas court declined to apply the doctrine of res judicata to bar claims asserted by injured parties against an insurer in a subsequent action for benefits, where the insurer failed to join the injured parties in its prior declaratory action which resulted in a coverage determination in favor of the insurer. Paulekas, 633 So.2d at 1113. The coverage determination was not binding on the injured claimants who were not parties in the earlier suit. Id.

Unlike Bethel, Conde, and Paule-kas, Alexandra’s absence from Citizens’ suit for declaratory relief does not subject Citizens to the threat of future litigation by a potential claimant. Alexandra assigned to Haim any and all rights to benefits under the policy, and she is not and cannot be a potential claimant under the policy. In short, while Alexandra may remain obligated to perform the post-loss duties imposed by the language of the policy, she need not be a party to any coverage decision. See Conde, 595 So.2d at 1008 n. 6; cf. Reinstein v. Pediatric Gastroenterology, Hepatology & Nutrition of Fla., P.A., 25 So.3d 54, 58-59 (Fla. 2d DCA 2009) (holding that doctor/shareholder was improperly dismissed from action by corporation seeking to enforce non-compete agreements against former shareholder, where underlying agreements allowed for non-exclusive enforcement by corporation or doctor/shareholder, and both corporation and doe-tor/shareholder therefore must be joined in action to ensure both of former shareholder’s “potential adversaries” are bound by judgment); Hanover Ins. Co. v. Publix Mkt, Inc., 198 So.2d 346, 348 (Fla. 4th DCA 1967) (affirming trial court’s reformation of insurance policy that erroneously insured “Taft-Hollywood Merchants Association, Inc.,” a corporation that never came into being, instead of “Taft-Hollywood Merchants Association,” an unincorporated association of merchants, and rejecting insurer’s argument that all members of insured merchant association need not be joined in declaratory action seeking coverage determination, where only one member of merchant association had sustained losses within the scope of the policy and was the only member that was also a real party in interest). Bethel, Conde, and Paulekas do not require that Alexandra be joined in the underlying litigation, and the trial court did not abuse its discretion when it dismissed her as a party to this suit.

2. The order of final judgment and the order granting Haim Ifergane’s motion for partial summary judgment as to coverage.

In his motion for partial summary judgment, Haim Ifergane argued he was entitled to summary judgment, as to the issue of coverage, for two reasons: (1) he was a resident insured under the policy; and (2) he was an innocent co-insured, therefore any failure on Alexandra’s part to comply with the policy’s post-loss obligations was irrelevant. The trial court agreed, finding that Haim was a resident spouse, and therefore, entitled to coverage as a matter of law. Because we find there were genuine issues of material fact as to whether Haim was a resident spouse on the date of loss, and because the Assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy, we reverse.

a. Resident Spouse

Summary judgment cannot be granted where there exist genuine issues of material fact. Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40 (Fla.1966); Am. Bankers Ins. Co. of Fla. v. Nolan’s Garage, Inc., 262 So.2d 727 (Fla. 3d DCA 1972). At Haim’s first EUO on January 14, 2008, he testified that he was living alone at the Venetian Drive property three months before Hurricane Wilma. He recanted this testimony in a subsequent affidavit, where he asserted he was not good with dates, was mistaken during his EUO, and that he lived with his wife at another property on the date of the hurricane. These contradictory statements created genuine issues of material fact as to whether Haim and Alexandra lived together on the date of the hurricane, and the trial court erred in granting summary judgment.

b. Post-Loss Obligations

The Citizens policy at issue requires the named insured and any resident spouse to submit to an EUO, at Citizen’s request. This Court has previously held that an insured’s refusal to submit to an EUO relieves the insurer of its obligation to pay under the policy. Stringer v. Fireman’s Fund Ins. Co., 622 So.2d 145 (Fla. 3d DCA 1993); see also Goldman v. State Farm Fire Gen. Ins. Co., 660 So.2d 300, 303 (Fla. 4th DCA 1995) (stating that “[a]n insured’s refusal to comply with a demand for an examination under oath is a willful and material breach of an insurance contract which precludes the insured from recovery under the policy”).

Although Alexandra assigned her right to benefits under the policy, she did not assign to Haim her obligations under the policy. Marlin Diagnostics v. State Farm Mut. Auto. Ins. Co., 897 So.2d 469, 470 (Fla. 3d DCA 2004) (holding “[t]he obligation to attend an EUO does not shift to the provider merely because the insured assigned her benefits”); Shaw v. State Farm Fire & Cas. Co., 37 So.3d 329, 332 (Fla. 5th DCA 2010) (citing with approval Marlin Diagnostics and holding that “the assignment of a contract right does not entail the transfer of any duty to the as-signee, unless the assignee assents to assume the duty”).

Citizens was entitled to an EUO from Alexandra, its named insured, regardless of the Assignment. Alexandra’s refusal to submit to a requested EUO precludes recovery under the policy, because the EUO stands as a condition precedent to coverage. De Ferrari v. Gov’t Emps. Ins. Co., 613 So.2d 101 (Fla. 3d DCA 1993); Goldman, 660 So.2d at 304 (holding policy provision requiring an insured to submit to an examination under oath is a condition precedent to suit rather than a cooperation clause). Accordingly, it was error for the trial court to grant summary judgment, finding coverage as a matter of law, and to enter final judgment in favor of Haim Ifergane.

Affirmed in part; reversed and remanded in part.

      . The effective dates of the policy were June 22, 2005, to June 22, 2006.

      . The undisputed evidence established that, although Haim’s name was left off the policy, he paid the premium and the mortgage on the subject property.

      . There was confusion as to whether the Ifer-ganes were living together on the date of the hurricane because Haim testified at his first EUO that he was living alone at the Property on the date of the hurricane, and later filed an affidavit asserting that he was living elsewhere with Alexandra on that date.

      . Under the terms of the policy, coverage was available to Haim as the spouse of the named insured if, at the time of the loss, he was "a resident of the same household.”

      . Citizens' motion for rehearing also was denied.

        . Citizens argues that any consideration of the prior order granting summary judgment on the issue of the validity of the Assignment is beyond the four comers of its amended complaint. The trial court’s prior partial summary judgment order resolved the issue of the validity of the Assignment, and the court was not required to ignore its own prior ruling disposing of a claim Citizens merely reasserted in its amended complaint. See Brown v. Progressive Cas. Ins. Co., 392 So.2d 358 (Fla. 4th DCA 1981).


author: COHEN, J.

text:
    Russell Glenn ELMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1134.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2012.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Russell 'Elmer appeals from the judgment and sentence entered after a jury found him guilty of three counts of capital sexual battery on a child less than twelve years old. On appeal, Elmer raises six arguments. Among them, he contends the trial court erred in prohibiting him from using a prior inconsistent statement to cross-examine the victim, and in precluding him from calling a detective to offer extrinsic evidence to impeach the victim. We agree and reverse.

The victim, C.J., was the daughter of Elmer’s then-girlfriend, now-wife, Ann. There was a significant delay from the time the sexual misconduct occurred until charges were filed. The sole issue raised at trial was whether the sexual abuse began prior to C.J.’s twelfth birthday, which was on April 21, 1989. It is undisputed that Elmer started abusing C.J. after he moved in with Ann, which occurred shortly after the two began dating. There was conflicting testimony, however, as to when Elmer started dating Ann. Both the State and the defense presented a series of witnesses on the issue, and extrinsic and an-ticdotal evidence was offered to assist in determining that date.

C.J. testified that the sexual abuse began when she was eleven years old and continued regularly for a number of years. An audiotape of a meeting between Elmer and C.J., recorded by law enforcement, was played for the jury. When confronted at the meeting, Elmer admitted to the sexual abuse and apologized to C.J. When she attempted to set the time frame of the abuse, Elmer neither admitted nor denied her timeline, which placed the beginning of the sexual abuse prior to her twelfth birthday.

Elmer attempted to dispute C.J.’s testimony that the abuse began before her twelfth birthday by using a police report she made to law enforcement in 1995. The report included statements from C.J. that suggested the abuse commenced after she turned twelve years old. Prior to trial, the State filed a motion in limine, seeking to preclude the use of the arguably prior inconsistent statements contained within the report. The motion also sought to prevent Elmer from eliciting testimony about the report from Detective Lucas, who investigated C.J.’s allegations of sexual abuse in 1995 and compiled the report. During a hearing on the motion, the State argued that C.J.’s statements in the report were hearsay. Elmer countered that the statements were being offered for impeachment purposes rather than for substantive evidence. As to Detective Lucas, the State contended the trial court should prohibit the detective from testifying because she had no independent recollection of the 1995 investigation. Elmer argued the detective’s report was admissible as a recorded recollection, pursuant to section 90.803(5), Florida Statutes (2010).

A proffer of Detective Lucas’s testimony revealed that she had no recollection of the case. The detective acknowledged that it was her handwriting on the report and that she generated such reports during the normal course of her duties. When asked by Elmer whether the report accurately reflected what she had been told, the detective responded, “What is there is what I was given.” Again, Elmer argued that the report was not hearsay because it was being offered for impeachment purposes. The State acknowledged that Elmer sought to use the detective to impeach the victim, but noted that C.J. testified she did not remember what she told Detective Lucas during the 1995 investigation. The trial court granted the State’s motion in limine, ruling that Elmer could not use the report to impeach C.J. and that Detective Lucas could not be questioned about the report because it was hearsay. When Elmer attempted to question C.J. about the 1995 report at trial, the trial court precluded him from doing so.

This Court reviews the trial court’s limitation of cross-examination and exclusion of evidence for an abuse of discretion. See Boyd v. State, 910 So.2d 167, 185 (Fla.2005); Zack v. State, 753 So.2d 9, 25 (Fla.2000). A criminal defendant should be afforded wide latitude to cross-examine the State’s witnesses, especially when cross-examining a key prosecution witness. See McDuffie v. State, 970 So.2d 312, 325 (Fla.2007); Robinson v. State, 438 So.2d 8, 10 (Fla. 5th DCA 1983). As the United States Supreme Court explained in Davis v. Alaska, 415 U.S. 808, 316, 94 5.Ct. 1105, 39 L.Ed.2d 347 (1974):

Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested. Subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, the cross-examiner is not only permitted to delve into the witness’ story to test the witness’ perceptions and memory, but the cross-examiner has traditionally been allowed to impeach, i.e., discredit, the witness.

It is axiomatic and fundamental to our system of justice that a party may impeach a witness by introducing statements of the witness which are inconsistent with the witness’s present testimony. See McBean v. State, 688 So.2d 383, 384 (Fla. 4th DCA 1997); see also § 90.608(1), Fla. Stat. (2010). In Pearce v. State, 880 So.2d 561 (Fla.2004), the supreme court explained:

[IJntroduction of a prior statement that is inconsistent with a witness’s present testimony is also one of the main ways to attack the credibility of a witness. The Florida Evidence Code does not require the witness’s prior inconsistent statement to be reduced to writing in order to impeach the witness under section 90.608(l)(a). The theory of admissibility is not that the prior statement is true and the in-court testimony is false, but that because the witness has not told the truth in one of the statements, the jury should disbelieve both statements.

Id. at 569 (citations and quotation omitted). Thus, a prior inconsistent statement admitted for impeachment purposes is not hearsay because it is not being offered for the truth of the matter asserted. See Marshall v. State, 68 So.3d 374, 375 (Fla. 5th DCA 2011).

If a witness cannot recall making the prior inconsistent statement, the fact that the statement was made may be proved by another witness. See id. Section 90.614(2), Florida Statutes (2010), provides that before extrinsic evidence of the contents of the prior statement is admissible, the cross-examiner must ask the witness whether he or she made the prior statement and give the witness the opportunity to admit, explain, or deny making the statement. When the witness does not “distinctly admit” making the prior statement, including when he or she claims an inability to remember making it, extrinsic evidence is admissible to prove the statement was made. § 90.614(2), Fla. Stat.; see also Pugh v. State, 637 So.2d 313, 314 (Fla. 3d DCA 1994).

We find the trial court abused its discretion in prohibiting Elmer from using the 1995 police report as a prior inconsistent statement to impeach C.J. Her testimony at trial conflicted with the statements reflected in the 1995 report. Most importantly, the 1995 report reflected she was twelve years old when the abuse began. Because the victim was the key prosecution witness, Elmer should have been afforded wide latitude in his cross-examination of her.

To further compound the error, the trial court ruled pretrial that Elmer could not call Detective Lucas to offer testimony about the contents of the 1995 report. In order to lay the foundation for impeaching C.J. with extrinsic evidence, Elmer should have been permitted to ask her whether she made the statements reflected in the 1995 report. If she denied or claimed inability to remember making the prior inconsistent statements, the trial court should have allowed Elmer to call Detective Lucas to testify as to what was reflected in the report. Although Detective Lucas admitted she did not have an independent recollection of the investigation, which took place approximately fifteen years before the trial, the detective indicated that she made the report and that she would not have included false information in it. Thus, the trial court erred in granting the State’s motion in limine as to Detective Lucas’s testimony as well.

Contrary to the State’s argument on appeal, these errors were not harmless. In its closing argument, the State emphasized that C.J. was the most credible witness because the abuse was inflicted upon her. As the victim’s credibility was crucial to the prosecution’s case, we conclude that there is a reasonable possibility that these errors contributed to the conviction. See Watts v. State, 450 So.2d 265, 268 (Fla. 2d DCA 1984) (finding harmful error where trial court restricted defense’s cross-examination of key prosecution witness and noting, “[g]iven [the witness’s] central position in the appellant’s case, a different result might have been obtained had the jury been able to hear all of the testimony relevant to [the witness’s] credibility and possible motive for testifying.”).

For the benefit of the parties and the trial court on retrial, we address two other evidentiary issues: the admissibility of certain defense photographs and similar fact evidence. First, Elmer argues the trial court erred in refusing to allow various photographs into evidence. We note in passing that the test for the admissibility of photographic evidence is relevance. See Engle v. State, 438 So.2d 803, 809 (Fla.1983). Relevant evidence is evidence tending to prove or disprove a material fact. § 90.401, Fla. Stat. (2010). Photographs can be relevant to a material issue either independently or as corroborative of other evidence. See Ortega-Mantilla v. State, 898 So.2d 1164, 1169 (Fla. 3d DCA 2005). Thus, evidence tending to prove that Elmer moved in with Ann after CJ.’s twelfth birthday was relevant and should have been admitted.

Elmer further contends the trial court erred in the admission of similar fact evidence. Section 90.404(2)(b)l., Florida Statutes (2010), provides, “In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible and may be considered for its bearing on any matter to which it is relevant.” Similar fact evidence is admissible to corroborate a victim’s testimony that sexual activity occurred by showing the defendant’s propensity for committing such conduct. See Mendez v. State, 961 So.2d 1088, 1090 (Fla. 5th DCA 2007). Similar fact evidence may also be relevant to rebut a defendant’s claim of fabrication by the victim. See Bruce v. State, 44 So.3d 1225, 1229 (Fla. 5th DCA 2010).

Before admitting similar fact evidence, the trial court must determine that there is clear and convincing evidence that the defendant committed the collateral crimes. See McLean v. State, 934 So.2d 1248, 1262 (Fla.2006). If the similar fact evidence is proven by clear and convincing evidence and is relevant, the trial court next must assess whether its probative value is substantially outweighed by the danger of unfair prejudice. In making this assessment, the trial court should evaluate the following nonexclusive factors:

(1) the similarity of the prior acts to the act charged regarding the location of where the acts occurred, the age and gender of the victims, and the manner in which the acts were committed; (2) the closeness in time of the prior acts to the act charged; (3) the frequency of the prior acts; and (4) the presence or lack of intervening circumstances.

934 So.2d at 1262. Additionally, the trial court must consider whether the evidence of the uncharged acts will “confuse or mislead jurors by distracting them from the central issues of the trial”; must assess “whether the evidence is needlessly cumulative of other evidence bearing on the victim’s credibility”; and “must guard against allowing the collateral-crime testimony to become a feature of the trial.” Id.

Evidence of a defendant’s continued sexual abuse of the same victim after the victim turned twelve years old may be admitted as similar fact evidence. For instance, in Hutchens v. State, 730 So.2d 825 (Fla. 2d DCA 1999), the defendant was charged with sexual battery on a victim less than twelve years old. At trial, the lower court allowed the victim to testify that the defendant continued abusing her after her twelfth birthday. The trial court also admitted DNA evidence indicating he had fathered the child she gave birth to when she was thirteen years old. The Second District Court of Appeal upheld the trial court’s admission of the similar fact evidence, noting that it was admissible to corroborate the victim’s testimony that the abuse, in fact, occurred prior to her twelfth birthday. Id. at 827.

On remand, the trial court must reexamine the admission of this evidence in light of the narrow issue to be resolved, i.e., C.J.’s age at the time the abuse commenced. We find unpersuasive the State’s assertion that the evidence of the sexual acts that occurred after C.J.’s twelfth birthday was inextricably intertwined evidence. However, we do not foreclose its admissibility after the trial court has conducted an appropriate analysis and has made the requisite findings.

We need not address the issue raised as to the incomplete read-back of the testimony, trusting that more care will be taken if the issue were to repeat itself. We find no error in the remaining issues raised.

REVERSED AND REMANDED FOR NEW TRIAL.

PALMER and TORPY, JJ., concur.

      . By the time charges were filed, the statute of limitations had run on all but the capital sexual battery charge, a fact known to the investigating detective and communicated to the victim.

      . Each side called witnesses who remembered various events, such as the purchase of a boat and an injury suffered by Elmer. Specifically, defense witnesses testified Ann bought Elmer a boat shortly after he moved in with her, and the defense entered into evidence a receipt for a boat dated August 9, 1990 — well after CJ.’s twelfth birthday. Additionally, several defense witnesses testified that Elmer and Ann met at a Fourth of July party and began dating immediately thereafter. C.J. testified that Elmer did not suffer any major injuries during the time in which he lived in the house and that she did not remember him wearing a cast or using crutches. The defense, however, offered medical records establishing that Elmer underwent knee surgery on August 11, 1988, requiring him to wear a cast and use crutches. Thus, the defense argued that C.J.’s testimony that Elmer never wore a cast or used crutches, combined with the fact that the surgery took place in August 1988, proved Elmer was not yet living with Ann at the time of the surgery. Because he and Ann met on the Fourth of July, Elmer argued, the evidence indicated they met no earlier than July 1989, after the victim turned twelve.

      . C.J. elicited a promise from Elmer that he would not abuse her seven-year-old daughter, stating, "she's going to be 11 pretty soon and that’s when it started between you and I." Elmer responded that Ann never allowed him to be alone with the child.

      . This report neither led to the arrest nor prosecution of Elmer.

      . One part of the report explicitly provided that C.J. stated that Elmer sexually abused her between August 1989 and an unknown month in 1993. Another part of the report stated that Elmer started abusing C.J. when she was twelve years old. The narrative portion of report, however, reflected that C.J. informed the investigating detective, Detective Lucas, that her stepfather died in March 1989, and Elmer began abusing her when he moved in "the following August.” While interpretation of the report is difficult given an inaccuracy as to the date of the stepfather’s death and inconsistencies within the statement, as discussed herein, the trial court should have allowed its use during the cross-examination of C.J.

      . There were other inconsistencies less critical to the ultimate issue in the case. While C.J. testified at trial the abuse occurred on a weekly basis at first and then on a monthly basis as she grew older, the 1995 report suggested that Elmer had abused her on only four occasions. The victim also testified that Elmer forced her to perform oral sex on him, that he performed oral sex on her, and that he digitally penetrated her; but the 1995 report made no mention of oral sex or digital penetration. At trial, the victim described the first time Elmer abused her, stating that she was lying on the couch and he forced her to perform oral sex on him. According to the 1995 report, however, the victim stated that the first time she was abused by Elmer, he forced her to have sexual intercourse with him in the kitchen. At trial, C.J. stated he never fully removed her clothing, but the 1995 report reflected that during one incident of abuse, she woke up to find her "clothes missing.” The victim testified at trial that Elmer had sexual intercourse with her in their camper, yet she did not mention any incidents in a camper to Detective Lucas in 1995.

      . CJ.’s half-brother, James Eric, testified that every year after Elmer moved into their house, he shared a birthday party with Elmer’s son, and that both boys’ names were on a single cake during those parties. C.J. also testified she remembered the boys sharing a birthday party in October during the first year in which Elmer lived in the house. Elmer attempted to admit into evidence photographs of one of James Eric’s birthday parties. One photograph was a close-up shot of a birthday cake with only James Eric’s name on it, and another photograph showed James Eric blowing out the candles on that cake with Ann standing nearby wearing a T-shirt she purchased at a March 1989 concert. Elmer contended that the fact Ann was wearing that T-shirt proved the photograph was taken sometime after the March 1989 concert. Because James Eric's birthday is in October, he argued, the photograph was taken no earlier than October 1989. Because the birthday cake had only James Eric's name on it, and James Eric testified that he always shared a birthday cake with Elmer’s son after Elmer moved in, Elmer contended that the pictures suggested he did not yet live with the family in October 1989. The trial court, however, excluded the photographs as irrelevant.

      . At the very least, this includes the photograph of Ann wearing the concert T-shirt at the birthday party, as well as the photograph of the birthday cake.


author: PER CURIAM.

text:
    Travis WALTERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2354.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2012.
    Travis Walters, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant, Travis Walters, appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Rule 3.800(a), Florida Rules of Criminal Procedure. Walters also has a direct appeal of his judgment and sentence pending in this court. The issue we must resolve is whether the trial court had jurisdiction to hear the motion. Rule 3.800(a) expressly prohibits the filing of a motion during the pendency of a direct appeal. Therefore, the trial court lacked jurisdiction to rule on the motion because the motion was unauthorized. See Smith v. State, 82 So.3d 1185, 1186 (Fla. 5th DCA 2012). Accordingly, we vacate the order of the trial court and remand this case with directions to dismiss Walters’ motion for lack of jurisdiction. See Daniels v. State, 712 So.2d 765 (Fla.1998); St. Lawrence v. State, 773 So.2d 1291 (Fla. 5th DCA 2001).

Additionally, because we find Walters’ motion was prematurely filed, he may refile his Rule 3.800(a) motion after resolution of his direct appeal. Id.

VACATED AND REMANDED WITH DIRECTIONS.

PALMER, EVANDER and BERGER, JJ., concur.


text:
    Darrelle M. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-983.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2012.

      Darrelle M. Johnson, Bowling Green, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

Darrelle Johnson appeals from the denial of his petition for writ of habeas corpus. Johnson raises two issues: the constitutionality of chapter 893, Florida Statutes, and the jury’s failure to specify on the verdict form the amount of cocaine possessed. We find no merit to the constitutional challenge to Florida’s drug possession statute. See Shelton v. Sec’y, Dep’t of Corr., 691 F.3d 1348 (11th Cir.2012); State v. Adkins, 96 So.3d 412 (Fla.2012).

Before addressing the second issue, we note, as did Johnson in his reply brief, that the State did not address this issue in its answer brief. Notwithstanding the State’s failure to respond, we find no merit to Johnson’s argument. He relies upon State v. Estevez, 753 So.2d 1 (Fla.1999), which does lend support to his assertion that the jury is required to make a finding as to the amount of drugs involved in a trafficking case. However, his reliance on Estevez is unavailing for two reasons. First, Galindez v. State, 955 So.2d 517 (Fla.2007), provides that a jury-factfinding error, such as that alleged in Estevez, is subject to harmless error analysis. Second, the defendant in Estevez did not attempt to invoke review of the matter under habeas corpus.

The scope of postconviction relief through habeas corpus is very limited. As we stated in Richardson v. State, 918 So.2d 999, 1003 (Fla. 5th DCA 2006), “ha-beas proceedings may not be utilized to present issues that should have been raised on appeal or to obtain a second appeal.” Habeas corpus is not intended to be a substitute for, or otherwise expand, the time frames under Florida Rule of Criminal Procedure 3.850. Johnson filed a direct appeal from his March 2008 conviction and an appeal from the denial of a rule 3.850 motion. The issue as to the verdict form could have and should have been raised on direct appeal. The issue is not now subject to review and relief under habeas corpus.

AFFIRMED.

SAWAYA, TORPY and COHEN, JJ., concur.


text:
    Vidya BHOOLAI, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4079.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2012.
    Candace A. Hawthorne, of Hawthorne Law Firm, P.A., Tavares, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm, without discussion, the trial court’s denial of Vidya Bhoolai’s (“Bhoo-lai”) motion to withdraw plea. Because Bhoolai failed to challenge her sentence below, we do not consider her claim(s) of sentencing error. See Jackson v. State, 983 So.2d 562 (Fla.2008) (sentencing errors must be presented by contemporaneous objection or through a rule 3.800 motion). Our affirmance is without prejudice to Bhoolai seeking relief below pursuant to Florida Rule of Criminal Procedure 3.800.

AFFIRMED.

PALMER, LAWSON and EVANDER, JJ., concur.


text:
    Blake E. DORR, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-3407.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2012.
    Blake E. Dorr, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the judgment and sentence in case no. 05-2009-CF-043787-A, in the Circuit Court in and for Brevard County, Florida. See Fla. R.App. P. 9.141(c)(6)(D).

GRANT PETITION.

GRIFFIN, LAWSON and COHEN JJ., concur.


text:
    Jimil M. SHEIKH, Appellant, v. Zulle-Huma MUGHAL-SHEIKH, Appellee.
    No. 5D11-3898.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.
    Jimil M. Sheikh, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jimil Sheikh and Zulle-Huma Mughal-Sheikh were married in Pakistan and have two children from the marriage. During the course of the marriage, it appears they resided in Pakistan, the United Kingdom, New York, and, most recently, Florida. Florida’s jurisdiction is not in dispute. Mr. Sheikh has filed four separate appeals challenging a wide array of rulings by the trial court.

In case number 5D11-3898, the lower court entered an order following a hearing in which it determined that the parties were to have shared parental responsibility and Mrs. Mughal-Sheikh was to have primary residential responsibility of the minor children. The order also determined there was a need for, and Mr. Sheikh had the ability to pay, $600 in child support per month. Further, the order permanently enjoined Mr. Sheikh from removing the children from the state. The trial court reserved jurisdiction to determine alimony, court costs, and attorney’s fees.

As the underlying, non-final order determines the right to immediate monetary relief and child custody in a family law matter, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). See also Hickey v. Burlinson, 33 So.3d 827, 829 (Fla. 5th DCA 2010). To the extent the order granted an injunction, it is also reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). However, no transcript was provided nor was a statement of the evidence or proceedings prepared pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Without an adequate record, we are limited to a review of the order entered by the lower court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Finding no error apparent on the face of the order, we affirm.

In case numbers 5D11-4325, 5D11-4561, and 5D12-853, Mr. Sheikh appeals the denial of miscellaneous motions. These motions range from discovery issues to visitation with the children over past Christmas breaks. Most of the motions are repetitive and seek civil contempt/enforcement or suspension of enforcement of the order in case number 5D11-3898.

Florida Rule of Appellate Procedure 9.130 sets forth those non-final orders subject to review. As there are no matters decided by these orders covered by rule 9.130 or otherwise indicating certiorari relief is available, these three cases represent non-fínal, non-appealable orders. Thus, we lack jurisdiction to address those issues. See generally Thomas v. Silvers, 701 So.2d 389, 390 (Fla. 3d DCA 1997) (dismissing non-final, non-appealable order for lack of jurisdiction).

Accordingly, we affirm case number 5D11-3898, and dismiss case numbers 5D11-4325, 5D11-4561 and 5D12-853.

SAWAYA, TORPY and COHEN, JJ., concur.

      . Mr. Sheikh is a prolific filer of motions. At last count, he had filed eighty-two motions before the trial court.


text:
    Jimil M. SHEIKH, Appellant, v. Zulle-Huma MUGHAL-SHEIKH, Appellee.
    No. 5D11-4325.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.
    Jimil M. Sheikh, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jimil Sheikh and Zulle-Huma Mughal-Sheikh were married in Pakistan and have two children from the marriage. During the course of the marriage, it appears they resided in Pakistan, the United Kingdom, New York, and, most recently, Florida. Florida’s jurisdiction is not in dispute. Mr. Sheikh has filed four separate appeals challenging a wide array of rulings by the trial court.

In case number 5D11-3898, the lower court entered an order following a hearing in which it determined that the parties were to have shared parental responsibility and Mrs. Mughal-Sheikh was to have primary residential responsibility of the minor children. The order also determined there was a need for, and Mr. Sheikh had the ability to pay, $600 in child support per month. Further, the order permanently enjoined Mr. Sheikh from removing the children from the state. The trial court reserved jurisdiction to determine alimony, court costs, and attorney’s fees.

As the underlying, non-final order determines the right to immediate monetary relief and child custody in a family law matter, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). See also Hickey v. Burlinson, 33 So.3d 827, 829 (Fla. 5th DCA 2010). To the extent the order granted an injunction, it is also reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). However, no transcript was provided nor was a statement of the evidence or proceedings prepared pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Without an adequate record, we are limited to a review of the order entered by the lower court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Finding no error apparent on the face of the order, we affirm.

In case numbers 5D 11^325, 5D11-4561, and 5D12-853, Mr. Sheikh appeals the denial of miscellaneous motions. These motions range from discovery issues to visitation with the children over past Christmas breaks. Most of the motions are repetitive and seek civil contempt/enforcement or suspension of enforcement of the order in case number 5D11-3898.

Florida Rule of Appellate Procedure 9.130 sets forth those non-final orders subject to review. As there are no matters decided by these orders covered by rule 9.130 or otherwise indicating certiorari relief is available, these three cases represent non-final, non-appealable orders. Thus, we lack jurisdiction to address those issues. See generally Thomas v. Silvers, 701 So.2d 389, 390 (Fla. 3d DCA 1997) (dismissing non-final, non-appealable order for lack of jurisdiction).

Accordingly, we affirm case number 5D11-3898, and dismiss case numbers 5D11-4325, 5D11-4561 and 5D12-853.

SAWAYA, TORPY and COHEN, JJ., concur.

      . Mr. Sheikh is a prolific filer of motions. At last count, he had filed eighty-two motions before the trial court.


text:
    Jimil M. SHEIKH, Appellant, v. Zulle-Huma MUGHAL-SHEIKH, Appellee.
    No. 5D11-4561.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.
    Jimil M. Sheikh, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jimil Sheikh and Zulle-Huma Mughal-Sheikh were married in Pakistan and have two children from the marriage. During the course of the marriage, it appears they resided in Pakistan, the United Kingdom, New York, and, most recently, Florida. Florida’s jurisdiction is not in dispute. Mr. Sheikh has filed four separate appeals challenging a wide array of rulings by the trial court.

In case number 5D11-3898, the lower court entered an order following a hearing in which it determined that the parties were to have shared parental responsibility and Mrs. Mughal-Sheikh was to have primary residential responsibility of the minor children. The order also determined there was a need for, and Mr. Sheikh had the ability to pay, $600 in child support per month. Further, the order permanently enjoined Mr. Sheikh from removing the children from the state. The trial court reserved jurisdiction to determine alimony, court costs, and attorney’s fees.

As the underlying, non-final order determines the right to immediate monetary relief and child custody in a family law matter, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). See also Hickey v. Burlinson, 33 So.3d 827, 829 (Fla. 5th DCA 2010). To the extent the order granted an injunction, it is also reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). However, no transcript was provided nor was a statement of the evidence or proceedings prepared pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Without an adequate record, we are limited to a review of the order entered by the lower court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Finding no error apparent on the face of the order, we affirm.

In case numbers 5D11-4325, 5D1H561, and 5D12-853, Mr. Sheikh appeals the denial of miscellaneous motions. These motions range from discovery issues to visitation with the children over past Christmas breaks. Most of the motions are repetitive and seek civil contempt/enforcement or suspension of enforcement of the order in case number 5D11-3898.

Florida Rule of Appellate Procedure 9.130 sets forth those non-final orders subject to review. As there are no matters decided by these orders covered by rule 9.130 or otherwise indicating certiorari relief is available, these three cases represent non-final, non-appealable orders. Thus, we lack jurisdiction to address those issues. See generally Thomas v. Silvers, 701 So.2d 389, 390 (Fla. 3d DCA 1997) (dismissing non-final, non-appealable order for lack of jurisdiction).

Accordingly, we affirm case number 5D11-3898, and dismiss case numbers 5D11-4325, 5D11-4561 and 5D12-853.

SAWAYA, TORPY and COHEN, JJ., concur.

      . Mr. Sheikh is a prolific filer of motions. At last count, he had filed eighty-two motions before the trial court.


text:
    Aliaksandr YERMALAYEU, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 5D12-337.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.
    Aliaksandr Yermalayeu, Orlando, pro se.
    Louis A. Gutierrez, Sr. Attorney for the Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Aliaksandr Yermalayeu appeals a final order of the Reemployment Assistance Appeals Commission (RAAC) affirming the appeals referee’s dismissal of his appeal for lack of jurisdiction. Mr. Yermalayeu was properly notified of the initial determination that he did not qualify to receive unemployment compensation benefits and of the deadline for filing an appeal challenging that determination. He admits that his appeal was untimely, but asks that our court “investigate [his] case thoroughly and help [him] to get unemployment benefits.” While we are sympathetic to the health challenges and other personal difficulties outlined in Mr. Yermalayeu’s filing with our court, our review is limited to determining whether the RAAC correctly followed the law in its decision. Doss-Pouncey v. Unemployment Appeals Comm’n, 16 So.3d 252 (Fla. 4th DCA 2009). Because the referee’s decision was dictated by section 448.151(8), Florida Statutes (2011), we affirm the RAAC’s final order. See, e.g., Peterson v. Florida Unemployment Appeals Comm’n, 77 So.3d 905, 908 (Fla. 1st DCA 2012) (“The late filing of an appeal deprives the referee of jurisdiction to consider the merits of the underlying claim.”) (citations omitted).

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Jimil M. SHEIKH, Appellant, v. Zulle-Huma MUGHAL-SHEIKH, Appellee.
    No. 5D12-853.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.

      Jimil M. Sheikh, Daytona Beach, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Jimil Sheikh and Zulle-Huma Mughal-Sheikh were married in Pakistan and have two children from the marriage. During the course of the marriage, it appears they resided in Pakistan, the United Kingdom, New York, and, most recently, Florida. Florida’s jurisdiction is not in dispute. Mr. Sheikh has filed four separate appeals challenging a wide array of rulings by the trial court.

In case number 5D11-3898, the lower court entered an order following a hearing in which it determined that the parties were to have shared parental responsibility and Mrs. Mughal-Sheikh was to have pi’imary residential responsibility of the minor children. The order also determined there was a need for, and Mr. Sheikh had the ability to pay, $600 in child support per month. Further, the order permanently enjoined Mr. Sheikh from removing the children from the state. The trial court reserved jurisdiction to determine alimony, court costs, and attorney’s fees.

As the underlying, non-final order determines the right to immediate monetary relief and child custody in a family law matter, it is reviewable under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iii). See also Hickey v. Burlinson, 33 So.3d 827, 829 (Fla. 5th DCA 2010). To the extent the order granted an injunction, it is also reviewable pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(B). However, no transcript was provided nor was a statement of the evidence or proceedings prepared pursuant to Florida Rule of Appellate Procedure 9.200(b)(4). Without an adequate record, we are limited to a review of the order entered by the lower court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Finding no error apparent on the face of the order, we affirm.

In case numbers 5D11-4325, 5D11-4561, and 5D12-853, Mr. Sheikh appeals the denial of miscellaneous motions. These motions range from discovery issues to visitation with the children over past Christmas breaks. Most of the motions are repetitive and seek civil contempt/enforcement or suspension of enforcement of the order in case number 5D11-3898.

Florida Rule of Appellate Procedure 9.130 sets forth those non-final orders subject to review. As there are no matters decided by these orders covered by rule 9.130 or otherwise indicating certiora-ri relief is available, these three cases represent non-final, non-appealable orders. Thus, we lack jurisdiction to address those issues. See generally Thomas v. Silvers, 701 So.2d 389, 390 (Fla. 3d DCA 1997) (dismissing non-final, non-appealable order for lack of jurisdiction).

Accordingly, we affirm case number 5D11-3898, and dismiss case numbers 5D11-4325, 5D11-4561 and 5D12-853.

SAWAYA, TORPY and COHEN, JJ., concur.

      . Mr. Sheikh is a prolific filer of motions. At last count, he had filed eighty-two motions before the trial court.


text:
    Terrance A. MORAN, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 5D12-1336.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.
    Terrance A. Moran, Sanford, pro se.
    Louis A. Gutierrez, Sr. Attorney for the Reemployment Assistance Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Terrance A. Moran appeals a final order of the Reemployment Assistance Appeals Commission (RAAC) affirming the appeals referee’s ruling that he was disqualified from receiving unemployment benefits. The RAAC adopted the referee’s findings that Moran was discharged for misconduct connected with work due to his chronic absenteeism. We affirm.

Moran argues on appeal that the referee’s detailed findings are not supported by competent, substantial evidence. However, we cannot review the evidentiary basis for the referee’s findings because Moran did not designate a transcript of the hearing for inclusion in the record on appeal. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979) (holding that without record of trial proceedings, court cannot review underlying evidence so as to conclude that trial court’s judgment is not supported by evidence or by alternative theory). Because there is no transcript, we must assume that the referee’s findings of work-related misconduct are supported by the evidence. See Roach v. Unemployment Appeals Comm’n, 873 So.2d 617 (Fla. 5th DCA 2004).

Moran also argues that his former employer waived its right to contest an initial decision to grant benefits at an evidentiary hearing by failing to initially provide separation information pursuant to section 443.151(3)(a), Florida Statutes (2011). Moran misreads the statute. Although an employer who does not timely provide separation information when first requested to do so is not eligible to have its “account relieved of benefit charges as provided in s.443.131(3)(a),” the employer may still challenge an initial benefits determination pursuant to section 443.151(3)(c) by filing an “appeal or request for reconsideration” within 20 days after being mailed notice of the decision. Id. The record reflects that Moran’s former employer timely appealed the initial determination.

AFFIRMED.

LAWSON, EVANDER and COHEN, JJ., concur.


text:
    Earl BYERS, Appellants, v. STATE FARM MUTUAL AUTOMOBILE, etc., Appellee.
    No. 5D12-3185.
    District Court of Appeal of Florida, Fifth District.
    Oct. 19, 2012.

      Kimberly P. Simoes of The Simoes Law Group, P.A., DeLand, for Appellant.
    Kenneth P. Hazouri of deBeaubien, Knight, Simmons, Mantzaris & Neal, LLP, Orlando, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s Confession of Error, the circuit court’s June 29, 2012 Order of Dismissal is reversed. This cause is remanded to the circuit court for further proceedings.

REVERSED and REMANDED.

TORPY, EVANDER and BERGER, JJ., concur.