author: CLARK, J.

text:
    Rafael Uberto Lopez VILLALTA, as Personal Representative of the Estate of Walter Villalta, Appellant, v. CORNN INTERNATIONAL, INC., a Florida Corporation, L & W Drywall Services, Inc., a Florida Corporation, and Lesters Fuel Oil Services, a Florida Corporation, d/b/a Tropic Aire of North Florida, Appellees.
    No. 1D11-6260.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Ralph G. Patino, of Patino & Associates, Coral Gables, and Ralph 0. Anderson, of Ralph O. Anderson, P.A., Ft. Lauderdale, for Appellant.
    Steven G. Schwartz and Nancy I. Stein-McCarthy, of Schwartz Law Group, Boca Raton, for Appellee Lesters Fuel Oil Services d/b/a Tropic Aire of North Florida.
   CLARK, J.

The appellant, as the personal representative of the estate of Walter Villalta, challenges a summary final judgment entered in favor of the appellee Lesters Fuel Oil Services d/b/a Tropic Aire of North Florida, in the appellant’s civil action for damages upon the death of Mr. Villalta. In the summary judgment the trial court ruled that the appellant’s evidentiary submissions did not meet the requisite standard for gross negligence, to avoid the statutory immunity from suit provided in the Workers’ Compensation Law at section 440.10, Florida Statutes. However, the allegations in the appellant’s civil complaint, along with the depositions and other supporting evidence, did present a prima facie case of gross negligence sufficient to create a jury question and preclude summary judgment. The appealed order is therefore reversed.

Mr. Villalta worked for L & W Drywall Services as a drywall finisher on a construction project where L & W was a drywall subcontractor, and Tropic Aire was an HVAC (heating, vacuum, air conditioning) subcontractor. While working for L & W, Mr. Villalta fell from a scaffold and sustained fatal injuries. The appellant filed a civil suit for damages naming several defendants, including Tropic Aire which then asserted its immunity from suit granted by section 440.10(1), Florida Statutes. As specified in that statute, a subcontractor providing services on the same project as another subcontractor is given immunity from suit by an employee of the other subcontractor, as long as certain circumstances are satisfied including that the first subcontractor’s “own gross negligence was not the major contributing cause of the injury.” See § 440.10(l)(e)2., Fla. Stat.

The appellant alleged that Tropic Aire was grossly negligent in creating and then failing to cover a cut-out in the floor where Mr. Villalta was working, or to warn of the hazard created by the cut-out. The trial court nevertheless entered summary judgment for Tropic Aire, determining that the depositions and other supporting evidence could establish no more than ordinary negligence, and would not rise to the level of gross negligence. However, that ruling did not give proper effect to the evidence, which on motion for summary judgment must be viewed in the manner most favorable to the opposing party, without resolving factual conflicts in the evidence. See e.g. Laidlaw v. Krystal Co., 58 So.3d 1128 (Fla. 1st DCA 2011); Falco v. Copeland, 919 So.2d 650 (Fla. 1st DCA 2006).

Although there was conflicting evidence, when viewed most favorably for the appellant the evidentiary submissions indicate that when Mr. Villalta fell he was performing drywall work from a 16-foot high scaffold, in a room where Tropic Aire had made recessed cut-outs in the concrete floor to accommodate Tropic Aire’s HVAC work. There was also evidence that the cut-outs were uncovered, even though safety standards required that they have coverings fastened to the floor and painted to give warning of the danger. In addition, there was evidence that Tropic Aire was responsible for placing such coverings over the cut-outs; that the general contractor’s project superintendent contacted Tropic Aire about the cut-outs after the concrete slab was poured, and that Tropic Aire personnel had been in the room before Mr. Villalta was working there. Drywall workers who were in the room with Mr. Villalta stated that they were not given any instructions about the cut-outs and were not told the cut-outs should be covered. They indicated that a scaffold wheel went into one of the cut-outs, which apparently caused the scaffold to topple over, resulting in Mr. Villalta’s fall. Other witnesses also confirmed that the cut-outs presented a considerable hazard. Tropic Aire’s project manager acknowledged that the cut-outs created a risk of serious injury or death for the workers in the room if the cut-outs were not properly covered.

As explained in Courtney v. Florida Transformer, Inc., 549 So.2d 1061 (Fla. 1st DCA 1989), the line between simple and gross negligence is often uncertain and indistinct, and in such circumstances the question of whether negligence is simple or gross should ordinarily be resolved by the jury. Furthermore, the standard for gross negligence has been described as encompassing a composite of circumstances which create a clear and present danger of serious harm, where the defendant was aware or charged with knowledge of such danger and acted in conscious disregard of that danger. Glaab v. Caudill, 236 So.2d 180 (Fla. 2d DCA 1970). See also, e.g., Foreman v. Russo, 624 So.2d 383 (Fla. 4th DCA 1993); Courtney v. Florida Transformer, Inc., supra. The evidence submitted was sufficient to meet that standard. Summary judgment was thus improper because it should be entered only when there is no genuine issue, with even the slightest doubt, as to whether the conduct amounts to gross negligence. See e.g. Madaffer v. Managed Logistics Systems, Inc., 601 So.2d 1328 (Fla. 2d DCA 1992); see also Marquez v. Heim Corp., 632 So.2d 85 (Fla. 3d DCA 1993). Because Tropic Aire did not establish that there was no genuine dispute of material fact as to whether it acted with gross negligence, and the evidence submitted was sufficient to create a jury question, the trial court’s summary judgment was erroneous.

The appealed order is reversed, and the case is remanded.

WOLF and THOMAS, JJ., concur.

      . Because Tropic Aire was not within the vertical chain of a contractor to subcontractor to sub-subcontractor relationship with L & W, as described in Villalta v. Cornn International, Inc., 110 So.3d 952 (Fla. 1st DCA 2013), immunity was properly claimed under section 440.10(1), rather than section 440.11(1), Florida Statutes. See e.g. Amorin v. Gordon, 996 So.2d 913 (Fla. 4th DCA 2008).

      . The Florida Supreme Court has more concisely encapsulated this standard for gross negligence as "an act or omission that a reasonable, prudent person would know is likely to result in injury to another,” see Eller v. Shova, 630 So.2d 537, 541 n. 3 (Fla.1993), citing Glaab v. Caudill, supra. See also Travelers Indemnity Co. v. PCR Inc., 889 So.2d 779, 793 n. 17 (Fla.2004).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John William PAYTON, Jr., Husband, Appellant, v. Julie Anne East PAYTON, Wife, Appellee.
    No. 1D12-604.
    District Court of Appeal of Florida, First District.
    March 6, 2013.

      Lynn W. Martin, of Law Office of Lynn W. Martin, Fleming Island, for Appellant.
    Julie Anne East Payton, pro se, Appel-lee.
   PER CURIAM.

John William Payton, Jr. appeals certain parts of a final judgment dissolving his marriage to Julie Anne East Payton. He raises numerous claims on appeal. We find merit as to his challenges regarding the amount of unpaid support arrearages, the amount of Ms. Payton’s monthly health insurance expenses, the requirement that he obtain and maintain a $50,000 life insurance policy to secure his alimony obligation, and the amount awarded to Ms. Payton for permanent alimony. We have carefully considered the other issues on appeal and conclude that no reversible error has been demonstrated with respect to those claims.

Unpaid Support Arrearages

Upon Ms. Payton’s motion for temporary maintenance and support, the trial court ordered Mr. Payton to pay $1,750.00 per month to Ms. Payton during the pen-dency of the dissolution proceedings. The final judgment expressly provided that no previously established obligation was waived, and the trial court reserved jurisdiction to enforce any prior orders. Finding that, as of December 1, 2011, Mr. Payton owed $2,530.09 for past unpaid support arrearages, the court ordered him to pay down this amount at the rate of $200.00 monthly until it is fully paid.

During the November 2011 dissolution trial, Mr. Payton conceded he did not believe that he had paid all of the support he had been ordered to pay. He had no idea how much he owed Ms. Payton for October. At the end of the trial, Ms. Payton’s counsel stated that Mr. Payton had not paid $375.00 “for this month.” Counsel asked the court to “reserve” on this issue. In his motion for rehearing, Mr. Payton alleged he had faxed detailed payment records to Ms. Payton’s counsel for September through December indicating that Mr. Payton had paid support in the amount of $4,545.00, leaving an arrearage of $1,255.00, rather than the higher amount listed in the final judgment. The court denied the motion without explanation.

In this appeal, Mr. Payton contends that no evidence indicates he was in arrears for even $375.00, much less a higher amount. Our record does not demonstrate how the trial court calculated the $2,530.09. Absent competent, substantial evidence to show the basis for this amount of support arrearages, we reverse this determination and remand for more specific findings. See Tipton v. Crotty, 872 So.2d 976 (Fla. 5th DCA 2004) (reversing order modifying child support, absent competent, substantial evidence to support the $400.00 ordered to be paid in arrearages for past child support); Merian v. Merhige, 671 So.2d 175 (Fla. 3d DCA 1996) (on motion for rehearing and clarification).

Health Insurance Expenses

On her financial affidavit, Ms. Pay-ton fisted $300.00 in monthly health insurance expenses “for children common to both parties.” This refers to the parties’ seventeen-year-old daughter, who was expected to graduate from high school about six months after the dissolution trial. In the “monthly insurance” section, Ms. Pay-ton fisted an additional $300.00 a month for health insurance, excluding the portion paid for any minor children of this relationship. Mr. Payton contends that Ms. Payton erroneously calculated $300.00 twice for a single monthly expense and therefore overstated her monthly expenses. This contention is consistent with the trial court’s September 2011 Order on Motion for Temporary Relief, which found: “Wife has available a health, hospitalization, major medical, dental insurance policy and/or medical reimbursement plan that covers the family. This costs her $300.00 per . month.” Based on the inconsistency apparent from the face of the record, we direct the trial court to make findings regarding the actual cost of Ms. Payton’s health insurance obligation. See French v. French, 12 So.3d 278, 279-80 (Fla. 5th DCA 2009) (remanding for correction of erroneous calculations relating to monthly spousal expenses); Dennison v. Dennison, 650 So.2d 194 (Fla. 2d DCA 1995) (reversing and remanding order denying petition to modify alimony, where the court substantially miscalculated former husband’s expenses).

Life Insurance Requirement

In the final judgment, the court ordered Mr. Payton to obtain and maintain a life insurance policy in the amount of $50,000 to secure his alimony obligation. See § 61.08(3), Fla. Stat. (2010) (authorizing the court to order the payor to purchase or maintain a life insurance policy to secure alimony). Mr. Payton correctly asserts that no evidence was adduced regarding the reasonable availability of life insurance, the cost thereof, or his ability to pay. Absent any competent, substantial evidence and factual findings to support the $50,000 life insurance obligation, we reverse this award and remand for the court to make the requisite findings. See Galstyan v. Galstyan, 85 So.3d 561, 565-66 (Fla. 4th DCA 2012); Norman v. Norman, 939 So.2d 240, 241 (Fla. 1st DCA 2006) (finding error as a matter of law in the trial court’s ordering former husband to obtain two $125,000 life insurance policies to secure his alimony and child support obligations, absent specific findings concerning the availability and cost of the policies and the impact of the cost on the payor).

Permanent Alimony

Ms. Payton requested permanent alimony based on the parties’ twenty-year marriage, which is rebuttably presumed to be a long-term marriage under section 61.08(4), Florida Statutes (2010). She alleged her inability to support herself and Mr. Payton’s ability to pay $886.00 a month for permanent alimony. § 61.08(2), Fla. Stat. In the final judgment, the court determined that Ms. Payton needs more than the amount previously ordered for temporary maintenance and support, in addition to her income, to enjoy the standard of living established during the marriage. Given the other substantial financial obligations placed upon Mr. Payton, however, the court acknowledged its intent not to create a significant discrepancy between the parties’ incomes. See Chap. 2011-92, §§ 79-80, Laws, of Fla. (adding language and rewording section 61.08(9), Florida Statutes, effective July 1, 2011, to state that “[t]he award of alimony may not leave the payor -with significantly less net income than the net income of the recipient unless there are written findings of exceptional circumstances”). The judge found that no other form of alimony, except permanent alimony, is fair and reasonable under the parties’ circumstances. § 61.08(8), Fla. Stat. (2011). The court concluded that Ms. Payton’s request for $886.00 a month in permanent alimony is reasonable and appropriate under the circumstances. We affirm the determination that Ms. Payton is entitled to some amount of permanent alimony.

The general rule is that a former spouse should not be left “shortchanged” by marital obligations to the other former spouse. See Perez v. Perez, 11 So.3d 470, 473 (Fla. 2d DCA 2009) (supporting the conclusion that an award requiring one party to pay alimony or other marital obligations to the other party, in an amount significantly exceeding the payor’s ability to pay, is unsupported by competent, substantial evidence and constitutes an abuse of discretion); Hotaling v. Hotaling, 962 So.2d 1048, 1051 (Fla. 2d DCA 2007). Mr. Payton asserts on appeal that the cumulative effect of his court-ordered obligations placed Ms. Payton in a relatively secure financial posture approximating the marital standard of living, while leaving him with a substantial monthly deficit. The figures from the parties’ most current financial affidavits in the record support Mr. Payton’s argument that the final judgment created a significant discrepancy in their monthly financial circumstances without judicial findings to justify the different treatment. Given the unresolved issues relating to the total cost of Ms. Payton’s health insurance, and the availability, cost, and Mr. Payton’s ability to pay life insurance, we recognize that the parties’ net incomes may also be different after the trial court makes findings on remand. Accordingly, we reverse the amount of permanent alimony and instruct the trial court either to award an amount that does not result in a significant disparity between the parties’ net incomes, or to make specific findings explaining why a different amount is appropriate.

For the reasons stated, we AFFIRM the final judgment in part, REVERSE it in part, and REMAND for further proceedings.

PADOVANO, ROWE, and RAY, JJ., concur.


author: WRIGHT, WILLIAM L., Associate Judge.

text:
    Mary Helen BROEMER, former wife, Appellant, v. Thomas Carl BROEMER, former husband, Appellee.
    No. 1D12-976.
    District Court of Appeal of Florida, First District.
    March 6, 2013.

      Seth Schwartz and Caleb D. Rowland, of The Schwartz Law Group, P.A., Jacksonville, for Appellant.
    William Bruce Muench and Jonathan J. Luca, of Muench & Luca, PLLC, Jacksonville, for Appellee.
   WRIGHT, WILLIAM L., Associate Judge.

Mary Helen Broemer, the former wife, appeals portions of an amended final judgment dissolving her twenty-seven-year marriage to Thomas Carl Broemer. The former wife contends that the trial court abused its discretion in imputing income to her and in denying her motion for additional attorney’s fees and costs, and erred in awarding durational alimony rather than permanent alimony without any legal or evidentiary basis. We affirm the imputation of income and the denial of the motion for fees and costs. We reverse the alimony award, however, and remand for specific factual findings or other appropriate relief.

I. Facts and Procedural History

At the time of the January 2012 amended dissolution judgment, the former wife was fifty-two years old and the former husband was fifty-four. The trial court found that the parties had a very modest lifestyle during the marriage, in the course of which the former husband was employed outside the home and served as the breadwinner, while the former wife was the homemaker and primary caregiver to the children, who are now adults. Although the former husband repeatedly urged the former wife to seek outside employment to supplement his income, she did not do so on any regular basis. Her last job outside the home ended in 1993, after which she earned no income from employment.

The court heard the testimony of Dr. Edwards, a family practice physician who is not the former wife’s primary care doctor. After performing a physical examination of the former wife, the doctor found signs and symptoms of carpal tunnel syndrome in both wrists, depression, and a shaking condition known as “essential tremor,” which is a physical and nerve disorder. Dr. Edwards opined that the former wife is unable to perform any work involving repeated lifting of twenty pounds or more.

The former wife underwent a personal interview and vocational evaluation with Lisa Hellier, who was accepted as a vocational expert. Hellier testified that the former wife explained her personal history, medical background,, and physical limitations. With this information, Hellier concluded that the former wife did not have permanent work restrictions. Hellier conducted a labor market survey and prepared a vocational evaluation report. In formulating her conclusions, Hellier accounted for the former wife’s eleventh-grade level of education and her relative lack of work experience outside the home. Test results indicate that the former wife functions at a twelfth-grade level and can pass the G.E.D. Hellier opined that without a high-school degree, the former wife could obtain employment in Jacksonville earning $15,196.00 annually.

Earning a G.E.D. and receiving additional vocational rehabilitative counseling and training skills would enhance the former wife’s employability. Hellier opined that if she obtains a G.E.D. and receives skills training in using computers and sophisticated telephone systems, the former wife can secure full-time employment earning between $15,000.00 and $20,000.00 a year. The prospective available entry-level jobs included full-time, sedentary positions working as a receptionist or a hotel front desk agent and requiring occasional lifting of up to ten pounds. Free and low-cost vocational assistance is available for displaced homemakers.

The trial court found that the former wife was voluntarily unemployed and had been so throughout the marriage. The court determined that although the former wife qualified for several jobs that would pay $15,000.00 to $17,000.00 a year, she had made no effort to secure work.

The former husband’s employer is BAE Systems. In his April 2011 amended financial affidavit, he listed his monthly gross salary or wages as $5,249.92 and his 2009 gross income as $68,000.00. After deducting taxes, health insurance, and temporary support, the former husband listed his net monthly income as $2,839.01. In the amended final judgment, the court listed the former husband’s gross monthly income as $4,139.00, without explaining the discrepancy between this figure and the substantially higher amount listed in the financial affidavit.

The court evenly distributed the marital assets and liabilities. The value of the marital residence was $80,000.00, subject to a $2,000.00 loan for roof repairs/replacement that will be repaid from the proceeds of the sale of the home. The parties owned two motor vehicles. After the dissolution, the parties’ main source of money was the employee savings and profit-sharing plan in the amount of $161,181.99.

The former wife stated her monthly need as $4,100.00, an amount the trial court deemed unrealistic. Given the former wife’s voluntary unemployment status, the court imputed income to her in the approximate amount of $15,000.00 annually. The court found that the former wife’s current actual need was $2,000.00 monthly, which the court awarded as bridge-the-gap alimony for twenty-four months. For the period beyond those twenty-four months, the court determined that the former wife would need, and the former husband had the ability to pay, $700.00 a month for durational alimony for a period not to exceed the twenty-seven-year marriage. Accounting for the equitable distribution, the court ordered each party to pay his or her own attorney’s fees and costs (excepting the $9,600.00 the court had previously ordered the former husband to pay toward the former wife’s temporary fees and costs).

II. Law & Analysis

A. Imputation of Income

For alimony purposes, trial courts can impute income to a voluntarily unemployed or underemployed spouse in determining the parties’ earning capacities, sources of income, and financial circumstances. See § 61.08(2)(e), (i), (j), Fla. Stat. (2011); Rabbath v. Farid, 4 So.3d 778, 781-82 (Fla. 1st DCA 2009); Freilich v. Freilich, 897 So.2d 537, 540 (Fla. 5th DCA 2005). The burden of proof is on the party seeking to impute income to the other spouse. Burkley v. Burkley, 911 So.2d 262, 269 (Fla. 5th DCA 2005). Where a court imputes income to a spouse, the reviewing court must determine whether competent substantial evidence supports this decision. Leonard v. Leonard, 971 So.2d 263, 266 (Fla. 1st DCA 2008).

Before the court can impute income, however, it “must conclude that the termination of income was voluntary” and “must determine whether any subsequent underemployment ‘resulted from the spouse’s pursuit of [her] own interests or through less than diligent and bona fide efforts to find employment paying income at a level equal to or better than that formerly received.’ ” Leonard, 971 So.2d at 267 (quoting Schram v. Schram, 932 So.2d 245, 249-50 (Fla. 4th DCA 2005)). The trial court must make specific findings regarding the source and amount of imputed income, which must be based on evidence of “employment potential and probable earnings based on history, qualifications, and prevailing wages.” Schram, 932 So.2d at 250; see Griffin v. Griffin, 993 So.2d 1066, 1067 (Fla. 1st DCA 2008).

The former husband presented evidence that would allow income to be imputed to the former wife. To explain her failure to seek outside employment over the years, the former wife contended that her debilitating, progressive, and observable medical conditions rendered her unable to work full-time. In weighing this evidence, the trial court deemed it relevant that the former wife.claimed to have disabling conditions, yet she never applied for social security or disability. In this record, no physician has found the former wife to be medically disabled. To the substantial extent that these medical problems are external and observable, the trial judge had a superior vantage point to assess the former wife’s demeanor and physical circumstances. See Kuvin v. Kuvin, 442 So.2d 203, 205-06 (Fla.1983); Severs v. Severs, 426 So.2d 992, 994-95 (Fla. 5th DCA 1983) (noting the advantages of the trial court’s first-hand observations in exercising its discretion in family law proceedings). Competent substantial evidence supports the findings that without any additional credentials, the former wife can earn $15,196.00 annually in available jobs that will accommodate her medical limitations. After receiving vocational skills training and rehabilitation and earning a G.E.D., the former wife will be able to earn between $15,000.00 and $20,000.00 a year in suitable jobs that are available. Because the record supports the imputation of income, we affirm this part of the amended final judgment.

B. Alimony

The former wife had the burden to prove her actual need and the former husband’s ability to pay alimony. Demont v. Demont, 67 So.3d 1096, 1101 (Fla. 1st DCA 2011). The trial court was required to make specific factual findings regarding these factors. § 61.08(2), Fla. Stat. (2011); Walker v. Walker, 85 So.3d 553, 554 (Fla. 1st DCA 2012). After the court determined that the former wife needs alimony and the former husband is able to pay, subsection (2) required the court to consider all the relevant factors enumerated therein in determining the proper type and amount of alimony. § 61.08(2)(a)-(j).

The Legislature has recognized that some spouses need transitional or “bridge-the-gap” alimony. See § 61.08(5), Fla. Stat. (2011). The trial court heard evidence that the former wife will need a year or more to acquire the credentials that will render her more marketable in the workplace. Assessing her actual need as $2,000.00 monthly, the court awarded this amount in bridge-the-gap alimony for twenty-four months. Durational alimony, which is authorized by section 61.08(7), Florida Statutes (2011), is “an intermediate form of alimony between bridge-the-gap and permanent alimony.” Nousari v. Nousari, 94 So.3d 704, 706 (Fla. 4th DCA 2012). The court determined that after twenty-four months, the former wife would need only $700.00 per month, an amount it awarded as durational alimony. The court made no factual findings explaining why it chose to award durational alimony rather than permanent periodic alimony.

It is well established that the decision to award alimony, of a certain type and in a certain amount, lies within the broad discretion of the trial court. See Canakaris v. Canakaris, 382 So.2d 1197, 1201-03 (Fla.1980); Demont, 67 So.3d at HOT. An appellate court will not disturb an alimony award where competent substantial evidence supports the award and the trial court complies with the governing law. However, we review de novo whether the trial court correctly applied the law to the facts of record. Jensen v. Jensen, 824 So.2d 315, 322 (Fla. 1st DCA 2002). The former wife argues that the factual record and the law do not support the refusal to award permanent alimony. We agree that a remand is necessary because the lack of required findings of fact renders us unable to review the alimony issue in a meaningful way. See Ondrejack v. Ondrejack, 839 So.2d 867, 871 (Fla. 4th DCA 2003).

The Legislature has set out several considerations for the trial court in determining whether to award permanent alimony. In pertinent part, the statute states:

Permanent alimony may be awarded to provide for the needs and necessities of life as they were established during the marriage of the parties for a party who lacks the financial ability to meet his or her needs and necessities of life following a dissolution of marriage. Permanent alimony may be awarded following a marriage of long duration if such an award is appropriate upon consideration of the factors set forth in subsection (2)- In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties. An award of permanent alimony terminates upon the death of either party or upon the remarriage of the party receiving alimony. An award may be modified or terminated based upon a substantial change in circumstances or upon the existence of a supportive relationship in accordance ■with s. 61.14.

§ 61.08(8), Fla. Stat. (2011) (as amended by chapter 2011-92, §§ 79-80, Laws of Florida, effective July 1, 2011, and applying to all initial awards entered after that date); Margaretten v. Margaretten, 101 So.3d 395, 396 & n. 1 (Fla. 1st DCA 2012). The parties were married for twenty-seven years. It is a rebuttable presumption that “a marriage having a duration of 17 years or greater” is a long-term marriage. § 61.08(4), Fla. Stat. (2011); Welch v. Welch, 22 So.3d 153, 155 (Fla. 1st DCA 2009) (revised opinion).

In seeking a remand of the alimony issue, the former wife contends that the former husband failed to overcome the initial presumption favoring an award of permanent alimony for a marriage of this long duration, and that the court’s substantial error in calculating the former husband’s gross monthly income skewed (in his favor) the analysis of his ability to pay. She argues that $700.00 a month is an arbitrary, unsupportable reduction that is insufficient to maintain her marital standard of living or to meet her financial needs. The former wife suggests that in awarding bridge-the-gap alimony in the amount of $2,000.00 a month, the court implicitly determined that the former husband was able to pay that amount, and nothing in the record indicated his financial position would change at the end of twenty-four months. She asserts that even after the imputation of income, a disparity exists between the parties’ income-earning capacity and that her need remains. See Sellers v. Sellers, 68 So.3d 348, 350 (Fla. 1st DCA 2011). Finally, she contends that the evidence regarding their marital assets belies the finding that the parties lived a very modest marital lifestyle and struggled to survive financially.

“Permanent alimony may be awarded following a marriage of long duration.” § 61.08(8). In the dissolution judgment, the court failed to address the initial rebuttable presumption or explain why it does not apply to this case. The court did not explain why it reduced the monthly amount from $2,000.00 to $700.00 or why durational alimony, rather than permanent alimony, is appropriate. The former wife is entitled on remand to a correct determination of the former husband’s monthly income for purposes of assessing his ability to pay alimony, and to findings addressing the rebuttable presumption and explaining why it was overcome. See Sellers, 68 So.3d at 350-51 (reversing and remanding for the trial court to make findings regarding the denial of permanent alimony).

C. Attorney’s Fees and Costs

We review an order granting or denying a motion for attorney’s fees and costs for an abuse of discretion. Kelly v. Kelly, 925 So.2d 364, 369 (Fla. 5th DCA 2006). The general standard for awarding attorney’s fees and costs is the requesting spouse’s financial need and the other spouse’s ability to pay. § 61.16(1), Fla. Stat. (2011); Galligar v. Galligar, 77 So.3d 808, 812-13 (Fla. 1st DCA 2011). “The purpose of this section is to ensure that both parties will have a similar ability to obtain competent legal counsel.” Rosen v. Rosen, 696 So.2d 697, 699 (Fla.1997). A trial court must determine the ultimate issue of fees and costs after the dissolution proceeding concludes, based on the parties’ respective financial circumstances. See Kelly, 925 So.2d at 368-69.

The court ordered the former husband to pay $9,600.00 toward the former wife’s temporary attorney’s fees and costs. Concluding that the equitable distribution of property enabled the former wife to pay, the court denied her motion for an award of additional fees and costs. We find no abuse of discretion in denying the former wife’s motion. For the benefit of the trial court, however, we note that if it alters the parties’ respective financial circumstances on remand, the court may revisit the motion for attorney’s fees and costs and account for any changes that would affect the outcome under section 61.16. See Sellers, 68 So.3d at 351; Perez v. Perez, 882 So.2d 537, 539 (Fla. 3d DCA 2004).

We AFFIRM the amended final judgment of dissolution of marriage in part, REVERSE it in part, and REMAND with instructions to make specific findings relating to the initial rebuttable presumption and the appropriate type and amount of alimony.

BENTON, C.J., and ROBERTS, J., concur.


author: THOMAS, J. CLARK, J.,

text:
    The PANAMA CITY GENERAL PARTNERSHIP, Appellant, v. GODFREY PANAMA CITY INVESTMENT, LLC (a Maryland Limited Liability Company), Appellee.
    No. 1D12-3141.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Sally B. Fox and Brian J. Hooper of Emmanuel, Sheppard & Condon, Pensacola, for Appellant.
    Dixon Ross McCloy, Jr., and Heather K. Hudson of Harrison Sale McCloy, Panama City, for Appellee.
   THOMAS, J.

Appellant, The Panama City General Partnership (“Partnership”), appeals the trial court’s non-final order denying the Partnership’s motion to quash service and set aside a default entered in Appellee’s (“Godfrey”) favor and the denial of its motion for rehearing or reconsideration.

We hold the motion for rehearing or reconsideration is properly considered as a motion for reconsideration, because a motion for rehearing is not authorized on a nonfinal order. And although a motion for reconsideration of a nonfinal order does not toll the 30-day time limit for appeal, the order denying the Partnership’s motion for reconsideration was entered and appealed within 80 days from the entry of the original nonfinal order. See Fla. R. App. P. 9.020(i); Fla. R. App. P. 9.130(b); see also Agere Sys., Inc. v. All American Crating, Inc., 931 So.2d 244 (Fla. 5th DCA 2006). As such, under these unique circumstances, the original nonfinal order and the order denying reconsideration are both properly before this court, as both were filed within 30 days of the trial court’s original nonfinal order. Otherwise, the order denying the Partnership’s motion for reconsideration of an appealable nonfinal order is not in itself, alone, an appealable order. Agere, 931 So.2d at 245.

Furthermore, while “a legally insufficient motion to vacate a default cannot be corrected as a matter of right by a motion for reconsideration or hearing, a trial court does have the inherent discretionary power to reconsider any order entered prior to the rendition of final judgment in the cause.” City of Hollywood v. Cordasco, 575 So.2d 301, 302 (Fla. 4th DCA 1991) (emphasis in original); Monte Campbell Crane Co., Inc., 510 So.2d 1104 (Fla. 4th DCA 1987) (holding that unauthorized motion for rehearing to set aside default heard by trial court will be considered as motion for reconsideration); see generally, James H. Wyman, Reconsideration or Rehearing: Is There a Difference, Fla. B.J., 83, June 2009, at 79. Because the trial court exercised its discretionary power and reached the merits of Appellant’s motion, we do so as well.

Godfrey filed a complaint against the Partnership for breach of contract. An affidavit of service was filed with the court by Robert Brady, process server, asserting that he had served a summons and complaint on George Porretta, the managing partner of the Partnership, at his home in Huntley, Illinois, on December 21, 2011. An entry of default was entered against the Partnership. Approximately three months later the Partnership filed a motion to quash service and set aside default, asserting that Porretta had moved from his home to an assisted living facility in Lincolnshire, Illinois, two days before the date of the alleged service.

One day before the hearing on the motion to quash service and set aside default, Godfrey filed Brady’s supplemental affidavit stating that he had served Porretta on November 25, 2011 (when the complaint was mistakenly filed in Bay County), and again on December 21, 2011 (with the summons and complaint for this case).

At the hearing, the Partnership asserted that Porretta’s affidavit denying service was sufficient to quash service, but if the trial court disagreed, then Porretta’s and Brady’s conflicting affidavits required the trial court to conduct a separate evidentia-ry hearing. The trial court stated that the Partnership could present evidence and testimony to support Porretta’s affidavit, but declined to continue the hearing in order to give the Partnership time to prepare supporting evidence. The Partnership, however, was not prepared to present evidence or testimony to support Porret-ta’s denial of service.

The trial court denied the motion to quash service and set aside default, finding that Porretta’s mere denial of service was insufficient to impeach the validity of the summons and that the Partnership failed to demonstrate excusable neglect. Thereafter, the Partnership filed a motion for rehearing or reconsideration, asserting new arguments to quash service and providing additional exhibits to support Por-retta’s denial of service. The trial court denied the motion on the merits, finding the motion raised no new arguments.

We do not find that the trial court abused its discretion in declining to continue the hearing in order to allow the Partnership to present additional evidence. “[A] process server’s return of service on a defendant which is regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). “[A] defendant may not impeach the validity of the summons with a simple denial of service, but must present ‘clear and convincing evidence’ to corroborate his denial.” Id. at 819 (quoting Fla. Nat'l Bank v. Halphen, 641 So.2d 495, 496 (Fla. 3d DCA 1994)). Here, the Partnership called up its own motion to quash service and was aware that an affidavit of service had been filed, yet came to the hearing only prepared to deny the service to Porretta. This was insufficient as a matter of law, thus, the trial court did not abuse its discretion in declining to continue the hearing to give the Partnership additional time to prepare.

We reverse, however, for an evi-dentiary hearing based upon the Partnership’s motion for reconsideration, which makes a prima facie case to challenge service. See Thompson v. State, Dep’t of Revenue, 867 So.2d 603, 605 (Fla. 1st DCA 2004). The Partnership’s motion attached Porretta’s amended affidavit, an affidavit from Porretta’s son, a receipt from the moving company, and a letter from the director of the retirement community where Porretta now resides. All of these exhibits supported the Partnership’s assertion that Porretta had moved from his home two days before the date of the alleged service.

Further, the motion did more than deny service — it challenged the affidavit of service as facially defective. In Florida “there is a strong preference for lawsuits to be determined on the merits rather than by default judgment.” Southeast Land Developers, Inc. v. All Florida Site and Utilities, Inc., 28 So.3d 166, 167 (Fla. 1st DCA 2010) (citing Tutwiler Cadillac, Inc. v. Brockett, 551 So.2d 1270, 1272 (Fla. 1st DCA 1989), and Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004)). Therefore, because the trial court, in its discretionary power, considered the Partnership’s motion for reconsideration, and the motion raised more than a mere denial of service, an evidentiary hearing is required.

REVERSED and REMANDED.

WOLF, J., concurs; CLARK, J., dissents with opinion.

CLARK, J.,

dissents.

I dissent. The amended notice of appeal designates the order denying the motion to quash service and set aside default as the order on appeal. See Fla. R.App. P. 9.130(c). This is an appealable order because the trial court found, after the evi-dentiary hearing on the motion, that the licensed process server “personally served the summons and complaint upon Defendant on December 21, 2011.” Thus, the trial court’s order made a fact determination that valid service of process had occurred, conferring personal jurisdiction over the defendant upon the court. Interlocutory orders that determine issues involving service of process are appealable under rule 9.130(a)(3)(C)(i), Florida Rules of Appellate Procedure. Fisher v. Int’l Longshoremen’s Ass’n, 827 So.2d 1096 (Fla. 1st DCA 2002).

On the other hand, the order denying the defendant’s motion for rehearing or reconsideration is not an appealable order. While a trial court has the authority upon a motion for rehearing to “reopen the judgment if one has been entered, take additional testimony and enter a new judgment,” pursuant to rule 1.580(a), Florida Rules of Civil Procedure, the trial court’s authority does not add to the appellate jurisdiction in this court. Non-final orders are only appealable if they are included in one of the categories listed in rule 9.130. Nat’l Lake Devs., Inc. v. Lake Tippecanoe Owners Ass’n, Inc., 417 So.2d 655 (Fla.1982). As stated in Agere Systems Inc. v. All American Crating, Inc., 931 So.2d 244, 245 (Fla. 5th DCA 2006), “an order that simply denies a motion for reconsideration or rehearing of an underlying non-final order ... is not in itself an appealable order.”

Likewise, an order denying a motion to set aside a clerk’s default is not an appeal-able non-final order under rule 9.130(a)(3), Florida Rules of Appellate Procedure. BMW Fin. Servs. NA v. Alger, 834 So.2d 408 (Fla. 5th DCA 2003); Bedi v. BAC Home Loans Serv., LP, 64 So.3d 681 (Fla. 2d DCA 2011). The fact that the denial of the motion to set aside clerk’s default was contained in the same order as the denial of the motion to quash service does not allow appellate review by this court. Other rulings contained in the same order as the ruling on service of process do not “tag along” to become appealable non-final orders under rule 9.130(a)(3)(C)(i). RD & G Leasing, Inc. v. Stebnicki, 626 So.2d 1002 (Fla. 3d DCA 1993); Swartz v. CitiMortgage, Inc., 97 So.3d 267, n. 1 (Fla. 5th DCA 2012). The order denying the motion to set aside the clerk’s default does not become an appealable non-final order by virtue of being contained in the order denying motion to quash service.

Accordingly, our review in this appeal is limited to the portion of the trial court’s order entered June 7, 2012, denying the motion to quash service of process upon the defendant.

The complaint for breach of contract was filed on November 29, 2011, in the Fourteenth Judicial Circuit in Washington County, Florida. Godfrey Panama City Inv. LLC v. The Panama City Gen. P’ship, Case No. 2011-CA-0503. Summons was issued by the Clerk of Court with correct case number, case style, and Court designation. The defendant’s address was located in the State of Illinois. On January 4, 2012, the affidavit of service signed and sworn to by the Illinois process server, Robert Brady, was filed with the court. The affidavit stated that service was obtained upon the defendant’s representative, George Porretta, at the Illinois address, on December 21, 2011. Plaintiff filed its motion for default for the defendant’s failure to file any paper in the action on January 12, 2012, and the clerk entered a default that same date. Fla. R. Civ. P. 1.500(a).

On March 2, 2012, fifty days after entry of the clerk’s default, Defendant Panama City General Partnership filed its motion to quash service and set aside default. The Partnership contested the fact of service of process, claiming that Mr. Porretta was never served with the Complaint and Summons for Washington County case number 2011 CA 0503 and that he had changed his residence two days prior to the purported service of process on December 21, 2011. A supporting affidavit of George Porretta was attached to the motion. The hearing on defendant’s motion was set for June 5, 2012.

On the day before the hearing, June 4, 2012, Plaintiff filed a second affidavit of Illinois process server Robert Brady. Mr. Brady’s affidavit contested the facts asserted in Mr. Porretta’s affidavit and attested to additional details of the service of process upon Mr. Porretta on December 21, 2011. The hearing on Defendant’s motion proceeded on June 5, 2012, as scheduled. Both parties were represented by counsel and there was no question that each party had sufficient notice of the hearing. The evidence presented by Defendant was Mr. Porretta’s affidavit, filed with the defense’s motion. The plaintiffs evidence consisted of the two affidavits of process server Brady, the first filed January 4, 2012 and the second filed June 4, 2012.

As the hearing progressed, defense counsel argued that Mr. Porretta’s affidavit denying service of process was sufficient to quash service of process, but if the judge was inclined to deny the motion, “we are, under the law, completely entitled to an evidentiary hearing.” Plaintiffs counsel argued that the hearing on the motion to quash service constituted an evidentiary hearing and that evidence had been submitted in the form of affidavits. Both parties had notice of the hearing and were free to prepare and present whatever evidence they deemed appropriate. The court noted that the motion was filed by the defense, that both parties had notice of the hearing upon the defense motion, and declined to set an additional hearing. The court issued its order a few days later, on June 7, 2012.

In the order denying motion to quash service and set aside default, the trial court found that the “record demonstrates that Robert A. Brady, a licensed process server in the State of Illinois, personally served the summons and complaint upon Defendant December 21, 2011.” Thus, the trial court determined the weight and credibility to be given the conflicting affidavits filed in the case and made a finding of fact based on that evidence. The court then applied the law, as set out in Sun-Trust Bank v. Electronic Wireless Corp., 28 So.3d 774 (Fla. 3d DCA 2009) and Telf Corp. v. Gomez, 671 So.2d 818 (Fla. 3d DCA 1996), that “the Defendant may not impeach the validity of the summons simply by a denial of service.” Concluding that “the Defendant has failed to sustain the high burden of demonstrating the invalidity of service,” the court denied the motion to quash service. In addition, the court denied the motion to set aside the clerk’s default which, as previously noted, is not on review.

Defendant, The Panama City General Partnership, filed its motion for rehearing or reconsideration on June 18, 2011. The Partnership asserted extensive facts in its motion and attached exhibits to support its allegations that Mr. Porretta was not located at the residential address on December 21, 2011, and that Mr. Brady’s affidavits were far outweighed by the counter-affidavits and other evidence the Partnership was now prepared to present to the court. However, without conducting a hearing on the motion, the trial court entered its order denying rehearing or reconsideration on June 19, 2011. The trial court did not make any findings of fact or otherwise indicate that it accepted additional evidence or alter its original order on the motion in any way. As previously explained, although the trial court certainly could have reopened the matter, held an additional hearing, and entered a new order on the motion to quash service and set aside default, the trial court’s decision not to do so is not an appealable order reviewable by this court.

The trial court properly concluded that the hearing on Defendant’s motion was the evidentiary hearing to which Defendant was entitled. The conflicting affidavits filed in this case and considered at the hearing on the motion in this case are competent substantive evidence, unlike the mere argument of counsel presented in Linville v. Home Sav. of America, 629 So.2d 295 (Fla. 4th DCA 1993) and single affidavit and argument of counsel presented in Fern, Ltd. v. Road Legends, Inc., 698 So.2d 364 (Fla. 4th DCA 1997).

I would affirm the order denying the motion to quash service of process and set aside default.


author: BENTON, C.J.

text:
    Christina VIERING, Appellant, v. FLORIDA COMMISSION ON HUMAN RELATIONS on Behalf of Bahiyyih WATSON, Appellee.
    No. 1D12-3287.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Daniel Woodring of Woodring Law Firm, Tallahassee, for Appellant.
    Sarah Juliet Purdy Stewart, Esq., Tallahassee, for Appellee.
   BENTON, C.J.

Christina Viering appeals the final order of the Florida Commission on Human Relations (Commission) ordering her to pay Bahiyyih Watson damages in the amount of $6,697.90 on account of discrimination in violation of sections 760.20-760.37, Florida Statutes (2008). Ms. Viering argues that the Commission unlawfully rejected the finding the administrative law judge (ALJ) made that no racial or religious discrimination had been proven. Agreeing that the Commission overstepped its authority by substituting its own view of the facts for the ALJ’s findings, we reverse and remand with directions.

In November of 2009, the Commission filed an administrative petition alleging that appellant had discriminated against Ms. Watson, one of her tenants, both on the basis of her race (Black American) and on the basis of her religion (Yoruba). The case was referred to the Division of Administrative Hearings (DOAH) where ALJ McKibben conducted a two-day formal administrative hearing. See §§ 120.569; 120.57(1), Fla. Stat. (2008). After the formal administrative hearing, the ALJ issued a twenty-page recommended order finding that Ms. Viering’s behavior had been eccentric and unpleasant, but that her actions “appear to be based on her own personality and demean- or, rather than on any intent to discriminate based on race or religion.” The ALJ recommended that the administrative petition be dismissed in its entirety.

Counsel for the Commission filed exceptions to the recommended order. The Commission took no action on the exceptions as such when it entered an order on August 2, 2011 (Aug. 2 Order) purporting to adopt all of the ALJ’s findings of fact, explicitly finding them to be supported by competent substantial evidence, but rejecting the ALJ’s determination that the evidence did not show that Ms. Viering intended to discriminate on the basis of race or religion. The Commission identified four of the ALJ’s factual findings as direct evidence of discrimination, and asserted that language in the recommended order stating that her actions “appear to be based on ...” nondiscriminatory factors stopped short of finding that Ms. Viering did not intend to discriminate. The Commission itself then concluded intent to discriminate had been proven, and remanded the case to the ALJ for a determination of appropriate relief, including damages.

On remand to DOAH, the ALJ conducted a second hearing concerning appropriate relief for Ms. Watson, and entered a second recommended order. Counsel for the Commission filed exceptions to the ALJ’s fact findings in this phase of the proceeding, as well, exceptions which the Commission adopted in their entirety, entering a final order reversing the ALJ’s findings, and awarding affirmative relief to Ms. Watson in the amount of $6,697.90 as “quantifiable damages.” On appeal of this final order, our review of the antecedent liability determination in the Aug. 2 Order is dispositive. “The court may review any ruling or matter occurring before filing of the notice.” Fla. R.App. P. 9.110(h). See also Fla. Leisure Acquisition Corp. v. Fla. Comm’n on Human Relations, 639 So.2d 1028, 1029 (Fla. 5th DCA 1994) (treating a liability determination before damages had been determined as a non-final interim order that could not be appealed before the Commission issued its final order in an employment discrimination case).

Discriminatory intent is a finding of fact. See Fla. Dep’t of Cmty. Affairs v. Bryant, 586 So.2d 1205, 1209 (Fla. 1st DCA 1991) (“The ultimate question of the existence of discrimination is a question of fact.... Consequently, a hearing officer’s finding of no discrimination should only be set aside if that finding is clearly erroneous, or is based on clearly erroneous findings of fact or a mistaken view of the law.”). But by rejecting the ALJ’s conclusion that it failed to prove Ms. Viering discriminated against Ms. Watson on the basis of race or religion, the Commission rejected findings of fact without first finding, after a review of the entire record, that the ALJ’s factual findings were not supported by competent, substantial evidence. In so doing, the Commission violated a cardinal tenet of administrative law. See § 120.57(1)((), Fla. Stat. (2008).

In contending its determination of discriminatory intent was a conclusion of law, the Commission seeks to recast a fact finding as a legal conclusion. “[T]he obligation of the agency to honor the hearing officer’s findings of fact cannot be avoided by categorizing a contrary finding as a conclusion of law.” Pillsbury v. State, Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999). “The mere fact that what is essentially a factual determination is labeled a conclusion of law” is not determinative. Id. The present case resembles School Board of Leon County v. Hargis, 400 So.2d 103, 106-07 (Fla. 1st DCA 1981). There we held that, where the hearing officer concluded that there was insufficient evidence to support the inference that Hargis was the subject of unlawful discrimination, the Commission could not reject that finding, even by labeling it a conclusion of law, given competent, substantial evidence in support of the hearing officer’s findings. Id. at 107. See also Gross v. Dep’t of Health, 819 So.2d 997, 1005 (Fla. 5th DCA 2002) (where the “Board has conceded in these proceedings that all of the findings made by the ALJ, including the finding that Gross did not violate the applicable standard of care or violate section 458.331(l)(t), are supported by substantial, competent evidence,” the “Board may not reject or modify those findings, substitute its findings, or make new findings”).

We recently held in Lantz v. Smith, 106 So.3d 518 (Fla. 1st DCA 2013), that an administrative adjudicatory body cannot modify “pivotal factual findings” the ALJ had made where competent, substantial evidence supported the findings, regardless of what the adjudicatory body would have decided if it had been the trier of fact. See also Langston v. Jamerson, 653 So.2d 489, 490 (Fla. 1st DCA 1995) (“The [agency] adopted all of the findings of fact exonerating Mr. Langston contained in the recommended order of the hearing officer, but imposed sanctions on Mr. Langston after purportedly rejecting the hearing officer’s conclusions of law. We conclude that the agency abused its discretion and reverse.”).

When the Commission declared that some of the ALJ’s factual findings established unlawful discrimination, it effectively reweighed the evidence and made a factual finding at odds with the ALJ’s. The Commission thus failed to comply with section 120.57(l)(i), Florida Statutes (2008), as explicated in the case law which disallows summarily reversing an ALJ’s factual determination (especially after purporting to adopt all of the ALJ’s factual findings) by taking a different view of the facts, under the guise of reaching a different conclusion of law. Accordingly, we reverse the Commission’s final order, and remand the case for entry of an order dismissing the administrative petition, as the ALJ recommended.

Reversed and remanded.

WOLF and SWANSON, JJ., concur.

      . Ms. Watson identified herself as Black American, rather than as African American. Ms. Viering is Caucasian.

      . The ALJ defined Yoruba as a religion with "a tradition of Orishas,” that assigns great emphasis to the role of ancestors, African traditions and respect for elders. The ALJ found it was not proven that Ms. Viering, a Christian, knew Ms. Watson's religious views.


text:
    Gerald James CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-362.
    District Court of Appeal of Florida, First District.
    March 6, 2013.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Gerald James Carter, Appellant, challenges his convictions for attempted second-degree murder, shooting into an occupied building, and possession of a firearm by a convicted felon. Pursuant to the Florida Supreme Court’s holding in Williams v. State, — So.3d - (Fla.2013), we reverse the conviction for attempted second-degree murder and remand for a new trial on that count. Finding no fundamental error under the second issue Appellant raises, we affirm Appellant’s convictions for shooting into an occupied dwelling and possessing a firearm.

REVERSED in part; AFFIRMED in part; REMANDED.

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Dwan DOE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3475.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Dwan Doe, Coleman, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011), review denied, 104 So.3d 1085 (Fla.2012).

WARNER, STEVENSON and DAMOORGIAN, JJ., concur.


text:
    Robert Henry DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3474.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Robert Henry Davis, Coleman, Pro Se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

POLEN, DAMOORGIAN and GERBER, JJ., concur.


text:
    Ryan M. BERGIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2750.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Ryan M. Bergin, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s rule 3.850 motion. However, the trial court is directed to correct the scrivener’s errors in the written judgment and disposition orders for case number 06-15870CF10A, which misstate the offenses appellant was convicted of and list the wrong degree for these offenses. Appellant was convicted of attempted strong arm robbery and attempted burglary of a dwelling, third degree felonies.

GROSS, TAYLOR and CONNER, JJ., concur.


text:
    Willie Jerome WELLS, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2529.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See State v. Adkins, 96 So.3d 412 (Fla.2012).

GROSS, DAMOORGIAN, JJ., and STONE, BARRY J., Senior Judge, concur.


text:
    Angel ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3595.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Angel Ortiz, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

WARNER, GROSS and LEVINE, JJ., concur.


author: TAYLOR, J.

text:
    STATE of Florida, Appellant, v. Shaun McKINLEY, Appellee.
    No. 4D11-2274.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellee.
   TAYLOR, J.

The State of Florida appeals the sentences the defendant received following his open plea to a violation of probation in Case Number 08-9139CF10A and to the substantive new law violations charged in Case Number 11-1684CF10A. Over the state’s objection, the trial court used two separate seoresheets when it sentenced the defendant for both cases. We reverse.

Under the Criminal Punishment Code, a single scoresheet must be prepared to determine the permissible sentencing range that the court may impose on a defendant, unless the defendant is before the court for sentencing for more than one felony and the felonies were committed under more than one version of the sentencing guidelines. See § 921.0024(3), Fla. Stat. (2010); see also Fla. R. Crim. P. 3.703(d)(2) (2010) (“One scoresheet shall be prepared for all offenses committed under any single version or revision of the guidelines, pending before the court for sentencing.”). Accordingly, where all of the defendant’s offenses fall under the same version of the sentencing guidelines, it is error for a trial judge to use more than one scoresheet to calculate the defendant’s sentences. See State v. Miller, 743 So.2d 141, 141 (Fla. 4th DCA 1999).

Here, over the prosecutor’s objection, the trial court stated that it would “split” the scoresheet. The defendant then entered into an open plea, accepting the trial court’s offer of concurrent sentences of 24 months in prison with credit for time served. However, because the defendant’s offenses all fell under the same version of the sentencing guidelines, the trial court erred in sentencing the defendant using two separate seoresheets. The resulting sentences were a departure from the lowest permissible sentences that would have been mandated had the court properly used a single scoresheet. Thus, the trial court erred by sentencing the defendant to what amounted to a departure sentence for both cases without providing written reasons for the departure.

We reverse and remand with instructions that the trial court resentence the defendant using a single scoresheet for both of the defendant’s cases. However, nothing in this opinion precludes the trial court from imposing a downward departure sentence on remand if the court provides valid written reasons for the departure, and if those reasons are supported by competent substantial evidence in the record. See, e.g., State v. Kolodz, 79 So.3d 117, 117 (Fla. 4th DCA 2012) (reversing departure sentence where trial court, over the state’s objection, did not provide oral or written reasons for the departure, but stating that on remand the trial court “may depart downward again if it has valid written reasons to do so”).

Reversed and Remanded.

MAY, C.J., and CONNER, J., concur.


text:
    Vincent JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1962.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. State v. Adkins, 96 So.3d 412 (Fla.2012); Maestas v. State, 76 So.3d 991 (Fla. 4th DCA 2011).

MAY, C.J., TAYLOR and CONNER, JJ., concur.


text:
    Makenson SAINTILER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1116.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

Makenson Saintiler appeals his criminal conviction and sentence for robbery with a weapon, as well as two orders revoking his probation because of the new robbery charge. He also appeals the denial of his Rule 3.170(i) motion to withdraw his plea to these charges. We reverse one of the probation revocation orders, but affirm on all other issues raised by appellant.

We reverse the revocation of appellant’s probation in Case Number 07-12673CF10A because no formal affidavit of violation of probation was ever filed in that case. See Johnston v. State, 684 So.2d 262, 263 (Fla. 4th DCA 1996) (holding that an order revoking probation should be vacated if no formal charge of violation of probation has been filed, and that this issue may be raised for the first time on appeal as fundamental error). We have considered Sampson v. State, 903 So.2d 1055 (Fla. 2d DCA 2005), but find it inapplicable. Here, unlike in Sampson, there is no basis in the record to conclude that an affidavit of violation existed or that appellant was aware of its contents.

We affirm, however, the summary denial of appellant’s motion to withdraw his plea to the new charge of robbery with a weapon in Case' Number 09-13815CF10A. The only ground specifically alleged in the motion was that the plea “was not voluntarily entered into as [appellant] was not fully advised of his rights, and the consequences of his actions on that particular day.” Appellant’s motion was legally insufficient for several reasons.

First, the motion was facially insufficient because appellant did not allege that he would not have entered the plea and would have insisted on going to trial had he been properly informed. Grosvenor v. State, 874 So.2d 1176, 1179 (Fla.2004); Alfred v. State, 998 So.2d 1197, 1200 (Fla. 4th DCA 2009); Grogin v. State, 824 So.2d 984, 984 (Fla. 4th DCA 2002). Second, the motion was facially insufficient because it failed to allege that withdrawal of the plea was necessary to correct a manifest injustice. See Powell v. State, 929 So.2d 54, 55 (Fla. 5th DCA 2006). Third, the motion was facially insufficient because appellant did not set forth any factual basis to support his conclusory allegations. See Williams v. State, 919 So.2d 645, 646-47 (Fla. 4th DCA 2006) (defendant’s bare allegation of “coercion,” unsupported by specific factual allegations, was conclusively refuted by the record); Powell, 929 So.2d at 55 (coneluso-ry allegations are insufficient; a defendant must offer some proof that the plea was not voluntarily entered).

Furthermore, appellant failed to preserve his argument in this appeal that the trial court should have sua sponte ordered a competency evaluation after his counsel informed the court that appellant had problems understanding and retaining information and had prior competency issues. Because this issue was not raised in appellant’s motion to withdraw plea, it was not preserved. See Delisa v. State, 910 So.2d 418, 421 (Fla. 4th DCA 2005) (explaining that the defendant must first preserve the competency issue by presenting it to the trial court in a timely motion to withdraw plea). In any event, on the merits, we find no abuse of discretion in the trial court’s failure to order a competency evaluation where defense counsel’s statements regarding appellant’s difficulty retaining information and his prior mental issues did not give rise to reasonable grounds to question appellant’s competency. See Andrews v. State, 916 So.2d 964, 966 (Fla. 5th DCA 2005) (holding that reasonable grounds to question the defendant’s competency did not exist where the defendant stated in open court that he had “mental problems,” defense counsel told the trial court that he had to “explain a lot of things” to the defendant “more extensively” than normal, and defense counsel never requested a competency exam). Here, the previous competency issues that defense counsel alluded to resulted in a determination that appellant was competent to proceed. Furthermore, similar to Andrews, defense counsel never specifically requested that the court order another competency exam. Moreover, appellant stated during the plea colloquy that he understood what he was doing, i.e., “resolving my case,” and that there was nothing that he did not understand about the proceedings.

Finally, appellant’s argument in this appeal that he was misinformed of the maximum sentence was not raised in the motion to withdraw plea and thus was not preserved for appellate review. See Thompson v. State, 50 So.3d 1208, 1212 (Fla. 4th DCA 2010) (defendant’s argument on appeal regarding affirmative mis-advice was unpreserved where the defendant did not expressly allege affirmative misadvice in his motion to withdraw plea).

Affirmed in part, Reversed in part.

MAY, C.J. and CONNER, J„ concur.


text:
    Nayma VALERA, Appellant, v. FLORIDA KEYS AQUEDUCT AUTHORITY and Florida Municipal Insurance, Appellees.
    No. 1D12-4692.
    District Court of Appeal of Florida, First District.
    March 6, 2013.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale; David S. Benn and Richard Zaldivar, Miami, for Appellant.
    David M. Schweiger and Damian Albert of Johnson, Anselmo, Murdoch, Burke, Piper & Hochman, P.A., Fort Lauderdale, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) finding both Claimant and the Employer/Carrier (E/C) are prevailing parties, determining the amount of each party’s costs under section 440.34(3), Florida Statutes (2009), and offsetting the two cost amounts, resulting in only one award of prevailing party costs to the E/C. Claimant’s argument is that the JCC erred in offsetting the two cost amounts because doing so was beyond his statutory authority. We agree.

No party challenges the JCC’s finding that each party prevailed on at least one claim in this proceeding. Section 440.34(3) states that “there shall be taxed against the nonprevailing party the reasonable costs of such proceedings.” Matters of enforcement of compensation orders are appropriately resolved in circuit court. See Brown v. Clay Cnty. Bd. of Cnty. Comm’rs, 43 So.3d 782, 784 (Fla. 1st DCA 2010) (“The court [in Orange County v. New, 39 So.3d 423 (Fla. 5th DCA 2010),] ... [held] an E/C may seek enforcement of the [cost] award as any other debt may be enforced in the appropriate court.”). Accordingly, on remand the JCC will award costs (in the amount he determined to be appropriate) to each party without offsetting the two cost amounts.

REVERSED in part (as to offset), AFFIRMED in part, and REMANDED for entry of an order consistent with this opinion.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


author: CIKLIN, J.

text:
    Kengi Narada MERRITT, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-758.
    District Court of Appeal of Florida, Fourth District.
    March 6, 2013.

      Evelyn A. Ziegler, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for appellee.
   CIKLIN, J.

Kengi Merritt appeals his conviction for three counts of sexual battery on a person less than twelve years of age, two counts of attempted sexual battery on a person less than twelve years of age, two counts of lewd or lascivious molestation, and one count of lewd or lascivious exhibition. The court sentenced Merritt to three concurrent terms of life imprisonment for the three convictions of sexual battery on a person less than twelve years of age. We affirm and write only to address Merritt’s claim that the trial court improperly prevented Merritt’s counsel from eliciting testimony from one of the victims regarding an alleged past sexual experience.

By information, the state alleged that Merritt sexually abused four young girls. A nurse practitioner (“the nurse”) examined one of the girls, L.P., and the nurse determined that L.P. had a healed hymen tear that possibly indicated sexual activity. L.P. was six or seven years of age at the time of the alleged abuse.

During the state’s case-in-chief, the nurse testified that her examination of L.P. revealed that L.P. had physical scarring which indicated past vaginal penetration. Prior to the nurse’s testimony, the state called L.P. L.P. testified that Merritt had vaginally raped her. Merritt’s counsel sought to question L.P. regarding an alleged past sexual experience between L.P. and a boy that, the defense argued, could provide an alternative explanation for L.P.’s physical signs of sexual activity. The state argued that L.P. had no personal knowledge of the event, and that the defense should be prevented from asking L.P. about the incident.

The court allowed Merritt’s counsel to question L.P. in a proffer, outside the presence of the jury. The court stated that if the proffered testimony produced admissible testimony, then Merritt’s counsel would be allowed to question L.P. regarding the past sexual experience in front of the jury.

The defense: Okay, [L.P.], do you remember talking to that lady [from the state-run Child Protective Team] in the room?
L.P.: Yes.
The defense: And when she asked you has anyone ever else [sic] put their penis in your vagina, you said yeah?
[The state objected, then apparently withdrew the objection].
The defense: She asked you that exact question, right?
L.P.: Yes.
The defense: And you said, yeah?
L.P.: I said, when I was little, my cousin said that this boy did when we was [sic] little. And [Merritt] like walked in on us. And that’s why we think he started touching on us and stuff. And he got my cousin and the boy doing it. And they said I did it, too, but I don’t remember doing it. But I think, I think I did it.

Still outside the presence of the jury, the state questioned L.P. regarding the incident with the boy. L.P. stated she did not have any independent memory of the boy placing his penis inside her or touching her in any way. L.P. also stated that the only reason she knew of the incident was because her older cousins told her it had happened.

Based on L.P.’s testimony, the court determined that the defense could not question L.P. regarding the incident because her answer — concerning what her older cousins told her — was hearsay. The court did allow one of the victim’s cousins to testify regarding the incident. The cousin testified that she, L.P., and the boy would “play house” and “sort of like touched each other.” The cousin stated that neither she nor L.P. had sex with the boy.

On appeal, Merritt contends that the trial court erred by ruling that L.P.’s proffered statements were inadmissible. “The standard of review for admissibility of evidence is abuse of discretion, limited by the rules of evidence. Whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review.” Lucas v. State, 67 So.3d 332, 335 (Fla. 4th DCA 2011) (citations, alteration, and quotation marks omitted).

Merritt argues that the cousin’s statement to L.P. was not hearsay because the defense asked L.P. whether any male other than Merritt placed his penis in L.P.’s vagina, and L.P. answered “yes.” Merritt misconstrues L.P.’s testimony during the proffer. L.P. answered affirmatively to the question, “She asked you that exact question, right?” L.P.’s answer only showed that she was previously asked a question regarding the past sexual experience with the boy, not that her vagina had in fact been penetrated by someone other than Merritt. When Merritt’s attorney asked what L.P.’s answer to the question was, L.P. answered, “[M]y cousin said that this boy did when we was little.” L.P.’s statement was hearsay. See § 90.801(l)(c), Fla. Stat. (2010).

The trial court properly precluded Merritt’s trial counsel from asking L.P. questions that would elicit hearsay in response. Therefore, we affirm.

Affirmed.

STEVENSON, J., and MORGAN, DAVID C., Associate Judge, concur.

      . The court also sentenced Merritt to four terms of thirty years each for the two attempted sexual battery convictions and the two lewd or lascivious molestation convictions, and fifteen years for the lewd or lascivious exhibition conviction, with all sentences to run concurrently.


text:
    Dawn SHEAFFER, Appellant, v. PUBLIX SUPER MARKETS, INC./HARTFORD, Appellees.
    No. 1D12-2589.
    District Court of Appeal of Florida, First District.
    March 8, 2013.

      Bill McCabe, Longwood, and Pat T. DiCesare of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Thomas P. Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) and argues 1) the JCC erred by denying her claim for permanent impairment income benefits based on her psychiatric condition; 2) the JCC abused her discretion in denying Claimant’s motion to reopen the record to allow supplemental post-hearing evidence concerning the extent of Claimant’s permanent impairment rating (PIR) for her cervical injuries; and 3) the JCC erred by denying penalties, interest, costs, and attorney’s fees. Because Claimant has failed to demonstrate the JCC abused her discretion by denying Claimant’s motion to reopen the evidence to allow post-hearing evidence concerning Claimant’s PIR for her cervical injuries, we affirm Claimant’s second issue on appeal without further comment. However, because the JCC erred by denying Claimant permanent impairment income benefits based on her psychiatric condition, we reverse Claimant’s first issue on appeal, along with the associated denial of penalties, interest, costs, and attorney’s fees, as argued in issue three.

BACKGROUND

On March 24, 2010, Claimant was referred to Dr. Norman Guthrie, a psychiatrist, following complaints of emotional problems. Dr. Guthrie diagnosed Claimant with recurrent major depression as a result of her compensable injury. On February 28, 2011, Dr. Guthrie placed Claimant at maximum medical improvement (MMI) with a Wo PIR. Notwithstanding the Wo PIR, Dr. Guthrie opined that Claimant needed follow-up every two to three months with medication and supportive therapy in order to maintain the improvement she had achieved. Accordingly, Claimant continued to see Dr. Guthrie every two to three months.

On October 21, 2011, Claimant filed a petition for benefits (PFB) seeking payment of impairment benefits for her psychiatric condition. The Employer/Carrier (E/C) contested the claim on the basis that Claimant was not entitled to impairment benefits for any psychiatric condition as Dr. Guthrie had assigned a 0% psychiatric PIR.

On December 13, 2011, Claimant underwent a psychiatric independent medical examination (IME) with Dr. Ramon Martinez (Claimant’s IME) who diagnosed Claimant with recurrent major depressive disorder. Dr. Martinez attributed this episode of depression to Claimant’s industrial injury and opined Claimant’s PIR was approximately 6% from a psychiatric standpoint.

On March 30, 2012, Claimant underwent a psychiatric IME with Dr. Kirti Pandya (E/C’s IME), who agreed that Claimant suffered from recurrent major depression that was moderate and in remission. He opined that Claimant had a 0% PIR as a result of her compensable psychiatric condition.

At a merit hearing on the matter, Claimant relied upon Dr. Martinez’s 6% PIR from a psychiatric standpoint. The E/C relied on Dr. Guthrie, who testified that a rating is appropriate when a patient has a problem with thinking, intelligence, perception, judgment, affect, or behavior, and that Claimant did not exhibit any problems in these areas. All three physicians agreed, though, that if Claimant were to stop taking her psychiatric medication, her psychiatric condition would decompensate.

In the order on appeal, the JCC accepted the medical opinions of Drs. Guthrie and Pandya over those of Dr. Martinez, and found that Claimant had a 0% PIR from a psychiatric standpoint. Regarding Claimant’s reliance upon medication to maintain psychiatric functionality, the JCC found, “[Dr. Guthrie] testified that she did require maintenance treatment with medications as she has now experienced three depressive episodes, but that this use of ongoing medication was not a factor in determining impairment.”

In her motion for rehearing, Claimant argued “the finding of zero percent (0%) [PIR] relative to Claimant’s psychiatric injury is inconsistent with the Claimant’s obvious deficit documented by all three psychiatrists relative to the current mental functioning. Under Axis V, Dr. Guthrie and Dr. Pandya both document dysfunction due to Claimant’s level of major depression.” After the JCC denied rehearing, this appeal followed.

ANALYSIS

A JCC has the discretion to accept the opinion of one physician over that of another. White v. Bass Pro Outdoor World LP, 16 So.3d 992 (Fla. 1st DCA 2009). However, a JCC’s reliance on a physician’s opinion must be warranted by the substance of that medical testimony and not merely by the doctor’s conclusion. Tucker v. Agrico Chemical, 476 So.2d 729 (Fla. 1st DCA 1985). Here, the JCC found that Dr. Guthrie testified that Claimant’s use of medication had no effect on the issue of impairment. We find no record support for this finding. To the extent the JCC through this finding was expressing a conclusion that a PIR cannot be assigned where the use of medications abates the symptoms or manifestations of an otherwise permanent condition, this was error as a matter of law.

Pursuant to the 1996 Florida Uniform Permanent Impairment Rating Schedule (the Guides), when evaluating mental impairments, “Attention must be given to the effect of medication on the individual’s signs, symptoms, and ability to function.” Although the interpretation of the appropriate impairment rating under the Guides is primarily a medical question, in relying on Dr. Guthrie’s opinion that Claimant had suffered no permanent impairment, which, in turn, did not give consideration to the effect of Claimant’s medication required to maintain her psychiatric condition, the JCC failed to take into proper account the provisions of section 440.15(3)(b) and (c), Florida Statutes (2008), requiring that “[a]ll impairment income benefits shall be based on an impairment rating using the impairment schedule.” As this court noted in Paradise Fruit Co. v. Floyd, 425 So.2d 9, 10 (Fla. 1st DCA 1982), when the Guides cover a particular injury, they must generally be used. Because the unrebutted medical testimony is that Claimant would be at severe risk of decompensating if Claimant were to stop taking her psychiatric medication, the Guides indicate that Claimant has a PIR of 1% (the maximum permitted for psychiatric conditions in a workers’ compensation case) — which requires evidence of a slight deficit, reduction, or problem with mental functioning. Because the finding of a 0% PIR, based upon Dr. Guthrie’s opinion, is not grounded on a correct application of the relevant law, and further because no reasonable view supports a finding that Claimant suffered no permanent impairment, the 0% PIR must be reversed and the case remanded with directions that a 1% PIR be imposed consistent with the Guides.

REVERSED and REMANDED.

BENTON, C.J., WOLF, and SWANSON, JJ„ concur.


text:
    The SEASCAPE HOMEOWNERS ASSOCIATION, INC., Appellant, v. ARIEL DUNES II CONDOMINIUM OWNERS ASSOCIATION, INC., Appellee.
    No. 1D13-0233.
    District Court of Appeal of Florida, First District.
    March 12, 2013.
    James C. Barth, Destín, for Appellant.
    Richard H. Powell of Powell & Strom, Fort Walton Beach; Kenneth B. Bell and Robert J. Powell of Clark Partington Hart Larry Bond & Stackhouse, Pensacola, for Appellee.
   PER CURIAM.

DISMISSED. See, e.g., Monticello Ins. Co. v. Thompson, 743 So.2d 1215 (Fla. 1st DCA 1999).

LEWIS, CLARK, and RAY, JJ., concur.


author: VILLANTI, Judge.

text:
    Demetrius BRACEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4627.
    District Court of Appeal of Florida, Second District.
    March 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 Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Demetrius Bracey appeals his conviction and sentence for robbery with a deadly weapon. Bracey raised no issues on appeal pertaining to his conviction, and we affirm that conviction without further comment. However, because the trial court sentenced Bracey using a scoresheet that may have been incorrectly scored and calculated, we reverse Bracey’s sentence and remand for a new sentencing hearing.

A jury convicted Bracey of robbery with a deadly weapon based on events that occurred on December 24, 2010. At Bracey’s sentencing hearing, the State presented the court with a Criminal Punishment Code scoresheet that included nineteen points for a prior conviction from the state of Illinois. The State asserted that Bracey’s Illinois offense was comparable to the Florida offense of sexual battery as defined in section 794.011(5), Florida Statutes (2010). Based on that assertion, the State scored Bracey’s Illinois conviction as a level eight offense and assessed nineteen points on his score-sheet.

Bracey’s counsel initially objected to the points scored for this prior conviction. Bracey admitted that he had an Illinois conviction for a sexual offense; however, he argued that his Illinois conviction was a misdemeanor offense and that his actual conduct was more akin to a lewd and lascivious offense under section 800.04, Florida Statutes (2010). Based on this assertion, Bracey contended that his prior conviction should be scored as either a level four or seven offense, which would result in a corresponding decrease in the points scored for this offense on his score-sheet.

In response to Bracey’s objection to the points that were scored, the trial court, the State, and Bracey’s counsel engaged in a discussion about the facts underlying the Illinois conviction, including the ages of Bracey and the victim and whether the victim could consent under Illinois law. All of the parties discussed a number of potential Florida offenses that might be “comparable” to the facts of the underlying Illinois offense, including sexual battery, lewd battery, lewd molestation, and unlawful sexual activity. Despite Bracey’s original objection to the points, the State did not introduce a certified copy of the Illinois conviction or provide the court with any other information concerning the elements of the Illinois statute under which Bracey was convicted. Ultimately, Bra-cey’s counsel agreed with the State’s argument that (1) a comparison of the facts underlying the Illinois offense to the potentially applicable Florida Statutes was the proper way to score the out-of-state offense, (2) the facts underlying Bracey’s Illinois conviction were comparable to Florida offenses under either section 794.011(5) or section 800.04(4), (3) either of those Florida offenses would be scored as a level eight offense, and (4) therefore the points on Bracey’s scoresheet were correctly scored regardless of the provisions of the Illinois statute under which he was actually convicted. After Bracey’s counsel’s concession on these issues, the trial court sentenced Bracey to the lowest permissible prison sentence allowed by the scoresheet as prepared by the State.

In this appeal, the only issue Bracey raises is the proper scoring of his prior Illinois conviction. The State now concedes that “only the elements of the out-of-state crime, and not the underlying facts, should be considered in determining whether the conviction is analogous to a Florida statute for the purpose of calculating points for a sentencing guidelines scoresheet.” Dautel v. State, 658 So.2d 88, 91 (Fla.1995) (emphasis added); see also Knarich v. State, 866 So.2d 165, 168 (Fla. 2d DCA 2004). When necessary, a trial court may consider an out-of-state charging document to determine which Florida offense is most analogous to the out-of-state conviction, but this is true only when either the ou1>of-state statute under which the defendant was convicted or the potentially applicable Florida statutes contain multiple subsections. See Knarich, 866 So.2d at 169; Rager v. State, 720 So.2d 1134, 1136-37 (Fla. 5th DCA 1998) (noting that when the Ohio sexual battery statute contained six subsections and the judgment did not specify the subsection pursuant to which the judgment was entered, the trial court could have considered the Ohio charging document in making its determination of which Florida offense was most analogous). Hence, it is legally incorrect for either the court or the State to identify the facts allegedly underlying an out-of-state conviction as the relevant scoring criterion and then use those facts to calculate a scoresheet based on which Florida statute appears most applicable to those facts.

In this case, however, the State and the trial court did exactly that. And while Bracey’s counsel initially objected to the scoring of this prior conviction, he never objected to the use of the underlying facts — rather than the elements of the Illinois offense — as the basis for determining the proper score. Further, even though Florida’s lewd and lascivious statutes and sexual battery statutes both contain multiple subsections, the State never provided either a copy of Bracey’s prior Illinois conviction or a copy of the Illinois charging document so as to allow the trial court to determine which of these multiple subsections were most analogous to the applicable Illinois statute. These legal errors, which are readily apparent in the transcript of the sentencing hearing, resulted in the trial court sentencing Bracey pursuant to a scoresheet that may have been improperly scored.

Because Bracey’s trial counsel ultimately abandoned his initial objection to the scoring of these points, any error arising from Bracey’s scoresheet was not preserved for appellate review. Nevertheless, we reverse Bracey’s sentence and remand for resentencing because the ineffectiveness of Bracey’s trial counsel on this issue is apparent on the face of the record. We recognize that “[g]enerally, a claim of ineffective assistance of counsel may not be raised on direct appeal.” Lambert v. State, 811 So.2d 805, 807 (Fla. 2d DCA 2002) (citing Corzo v. State, 806 So.2d 642 (Fla. 2d DCA 2002)); see also Cephus v. State, 52 So.3d 46, 48 (Fla. 3d DCA 2010). However, in rare cases, we will address the ineffectiveness of trial counsel on direct appeal when “ ‘the ineffectiveness is apparent on the face of the record[,]’ ” the prejudice to the defendant is obvious, and “ ‘it would be a waste of judicial resources to require the trial court to address the issue.’ ” Smith v. State, 998 So.2d 516, 522-23 (Fla.2008) (quoting Blanco v. State, 507 So.2d 1377, 1384 (Fla.1987)); see Gore v. State, 784 So.2d 418, 437-38 (Fla.2001).

Here, Bracey, like all defendants, was entitled to be sentenced using a correctly scored and calculated scoresheet. See, e.g., State v. Anderson, 905 So.2d 111, 118 (Fla.2005) (noting that “it is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence”); Fortner v. State, 830 So.2d 174, 175 (Fla. 2d DCA 2002) (“All defendants are entitled to be sentenced under a correctly scored and calculated scoresheet.”). However, given the clear precedent concerning how out-of-state convictions are to be scored, Bracey’s trial counsel’s failure to object to — and actual acquiescence in — the State’s efforts to justify the points scored on Bracey’s scoresheet resulted in ineffectiveness ap: parent on the face of the record. The prejudice to Bracey is obvious since we cannot say that the trial court would have imposed the same sentence had the trial court had a correctly scored and calculated scoresheet before it at Bracey’s sentencing. See Brooks v. State, 969 So.2d 238, 241 (Fla.2007) (noting that the question on direct appeal is whether the trial court would have imposed the same sentence using a corrected scoresheet). And it would be a waste of scant judicial resources to require Bracey to bring an ineffective assistance of counsel claim on this issue in a motion for postconviction relief in the trial court.

Accordingly, we reverse Bracey’s sentence and remand for further proceedings. On remand, if the State-wishes to again score the prior Illinois conviction, it must establish the elements of the Illinois offense for which Bracey was convicted, and the trial court should compare the elements of the charged Illinois offense with the elements of the potentially applicable Florida offenses to determine the proper Florida statute and corresponding offense level. The court may then resentence Bracey using a correct scoresheet.

Affirmed in part, reversed in part, and remanded for resentencing.

CASANUEVA and MORRIS, JJ., Concur.

      . Recognizing this, Bracey's appellate counsel attempted to preserve the issue through a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). However, rule 3.800(b)(2) motions allow for correction of errors only in the sentence itself; they are not a means by which unpreserved errors in the sentencing process can be revived and preserved for review. See Jackson v. State, 983 So.2d 562, 573 (Fla.2008). Thus, Bracey's rule 3.800(b)(2) motion did not preserve this error. We also note that the trial court denied Bra-cey's rule 3.800(b)(2) motion based on its conclusion that an evidentiary hearing would be needed to resolve the issue and that such hearings were not permitted under rule 3.800. While this statement is correct for motions filed pursuant to rule 3.800(a), it is incorrect as to motions filed pursuant to rule 3.800(b)(2), which expressly contemplates the possibility of the court convening an eviden-tiary hearing to resolve any facially sufficient issues raised in the motion. Hence, the trial court's denial of Bracey’s motion in this case was right for the wrong reason.