author: MORRIS, Judge.

text:
    Eric TATE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3089.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Appellant’s motion for written opinion is granted. We withdraw this court’s per curiam affirmance issued on May 29, 2013, and substitute it with the following opinion.

Eric Tate appeals his convictions for felony murder and aggravated child abuse. On appeal, Tate argues that the trial court erred in denying his motion for judgment of acquittal and that the trial court erred in answering the jury’s question regarding access to transcripts of witness testimony. We conclude that neither error was preserved and that neither error amounts to fundamental error.

I. Motion for judgment of acquittal

Tate first claims that the trial court erred in denying his motion for judgment of acquittal because the State failed to present evidence that he knowingly, intentionally, and purposefully intended to harm the victim, H.R. Tate argues that the State failed to present evidence that was inconsistent with his reasonable hypothesis of innocence that H.R. accidentally fell off the couch.

At the conclusion of the State’s case, defense counsel made a boilerplate motion for judgment of acquittal by arguing that “the State has failed to make a prima facie case as it relates to either Count One or Count Two.” This was insufficient to preserve the alleged error for appellate review. Miller v. State, 712 So.2d 451, 452 (Fla. 2d DCA 1998). However, this court may consider the issue, under the fundamental error doctrine, if “the evidence [was] insufficient to show that a crime was committed at all.” F.B. v. State, 852 So.2d 226, 230 (Fla.2003). The only issue is whether H.R.’s injuries were accidental or inflicted by Tate; therefore, the analysis is the same regardless of whether the issue was preserved.

“ ‘Where the only proof of guilt is circumstantial, no matter how strongly the evidence may suggest guilt, a conviction cannot be sustained unless the evidence is inconsistent with any reasonable hypothesis of innocence.’ ” Darling v. State, 808 So.2d 145, 155 (Fla.2002) (quoting State v. Law, 559 So.2d 187, 188 (Fla.1989)). “ ‘A motion for judgment of acquittal should be granted in a [wholly] circumstantial evidence case if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt.” Id. at 155-56 (quoting Law, 559 So.2d at 188). The “[c]ireumstantial evidence must lead ‘to a reasonable and moral certainty that the accused and no one else committed the offense charged.’ ” Cox v. State, 555 So.2d 352, 353 (Fla.1989) (citing Hall v. State, 90 Fla. 719, 107 So. 246, 247 (1925)).

In order to prove the offense of aggravated child abuse and the offense of felony murder resulting from the aggravated child abuse, the State proceeded under the theory that Tate knowingly or willfully abused H.R., causing her great bodily harm, permanent disability, or permanent disfigurement. See § 827.03(l)(a)(3), Fla. Stat. (2006). The defense presented the theory that H.R., who was then two and one-half years old, died from brain injuries she sustained from an accidental fall from the couch while in the sole care of Tate. In support of that defense, the defense presented the detailed testimony of Dr. Edward Willey, a physician and pathologist who had performed approximately 900 autopsies between 1963 and 1967 and who was board certified in anatomical pathology. For the past twenty-six years, he has served as a professional consultant, sometimes performing private autopsies. Dr. Willey testified that H.R.’s bruises did not suggest abuse and could have been caused by a clotting issue brought on by the brain injuries she suffered and that H.R.’s optic and retinal hemorrhages were not obvious indicators of abuse. Dr. Willey testified that H.R.’s injuries could have been caused by a fall from a couch as reported by Tate and that he [Dr. Willey] could not say that H.R. “could have only” died from inflicted trauma. He admitted that H.R.’s injuries could have been inflicted.

The defense also presented the detailed testimony of Chris Van Ee, a biomedical engineer who conducts research in impact and orthopedic biomechanics. He studies how injuries are caused and how they can be prevented. He conducted a reconstruction of the fall as reported by Tate and testified that the fall could have caused serious and even fatal head injury. He testified that a study showed that children can suffer subdural hematomas and retinal hemorrhages and die from short falls, citing specific instances of falls resulting in such injury and death. However, he said that it is not a common occurrence and that it is rare. He also did not take into account the bruising on H.R.’s body.

The State presented evidence that H.R.’s injuries were inflicted and not the result of a fall. The State presented detailed medical testimony that is summarized as follows: Dr. Maximo Luque specializes in pediatric emergency medicine at St. Joseph’s Hospital. He is board certified in adult emergency and pediatric medicine and in the subspeciality area of pediatric emergency medicine. He has been working exclusively in pediatric emergency medicine since 1984. He has treated approximately 200,000 children in twenty-eight years.

Dr. Luque treated H.R. when she was brought into St. Joseph’s emergency room. He testified that the victim had “some bruising on both earlobes and also bruising in the lower back,” which was not caused by the lifesaving measures. H.R. had significant brain injuries (a subdural hemato-ma and herniation) and retinal hemorrhages that were likely caused by significant deceleration force. A short fall from a couch was “absolutely not” consistent with H.R.’s injuries, based on Dr. Luque’s years of experience in the pediatric emergency room setting. He opined that “this was a non-accidental injury, it was an inflicted injury to the child.” Dr. Luque testified that he remains current and reads literature in the field of short and longer fall injuries, and he was currently the codirector of the Child Abuse Initiative at St. Joseph’s. The bruises on H.R.’s earlobes also contributed to his opinion that her injuries were inflicted.

Dr. Luque testified in detail that brain injuries do not “produce abnormalities” in blood clotting and that H.R.’s blood work was slightly above normal, which was of no consequence. H.R.’s bruising was not caused by a clotting problem, and Dr. Lu-que did not believe that H.R. developed a clotting condition due to the injury. Dr. Luque testified that intracranial pressure can cause retinal hemorrhaging and that it was significant that H.R. had the retinal hemorrhages. He opined that there are many ways to get them but “[f]rom trauma specifically you require a significant injury, much more ... than falling off a sofa.” A person can also get them by being shaken.

Dr. Luque considered all of the injuries together to conclude that H.R.’s injuries were inflicted. They “require[d] a significant force, much more than just falling off the couch.” He had “never seen one with these type of injuries that result[ed] from a minor fall.” They could happen from a number of things, such as shaking, blunt force to the head, or the child’s being thrown. When asked if his opinion would change if he tried to figure out how the injury happened “from a physics principle,” Dr. Luque answered, “No, ma’am. I don’t need to do that. I know it.” The State asked, “[T]o a reasonable degree of scientific certainty what is your opinion as to what caused the injuries on H.R,” and Dr. Luque answered, “To me[,] the injuries of this patient were non-accidental.... My opinion is that this patient’s injuries were consistent with inflicted injury and not accidental.”

The State also presented the testimony of Dr. Carl Riggs, who had been practicing medicine for thirty years. He was currently a critical care specialist, primarily treating children. He had been board certified in pediatric critical care medicine for twenty-three years. He had seen approximately 2100 children a year for thirty years. He had been qualified as an expert in critical care pediatrics probably “a couple dozen” times. Dr. Riggs treated H.R. in the intensive care unit (ICU) at St. Joseph’s. When he examined her, she had early bruises, probably within 48 hours, which he did not believe were caused by medical intervention. Even though he did not measure the couch H.R. had reportedly been jumping on, he had enough medical information to form an opinion as to the cause of H.R.’s injuries. His opinion was that a fall off the couch “wasn’t consistent with this degree of injury.” “To come to the emergency room dead requires a significant amount of injury to that brain.” Even if the child had jumped intentionally off the couch and hit her head on the floor, his opinion as to the cause of the injuries would not change. Retinal hemorrhages are associated with certain types of inflicted injuries. Dr. Riggs testified that the retinal hemorrhages could have possibly occurred from a fall from a couch, but the most likely cause of H.R.’s injuries was a “non-accidental trauma.” There was no sign of any acute or chronic illness or clotting disorder.

Dr. Riggs explained that the “constellation [of injuries] is really significant for being a non-accidental injury.” The bruising on the ears indicates a type of blow or pinch. He testified that studies about G forces and the like obviously cannot use real people and are conducted with dummies in efforts to try to simulate things as best they can. In his thirty years of working with children, he had never seen such injuries from a child falling off a couch. Even if she had thrown herself off the couch, he did not believe that such a velocity would explain all of her injuries.

The State also presented the testimony of Dr. Leszek Chrostowski, who performed the autopsy on H.R. He is board certified in the fields of pathology and forensic pathology. He has been practicing in the U.S. since 1995. He had performed hundreds of autopsies on children and 5000 to 6000 autopsies in his career. In his opinion, H.R. died from cerebral trauma, and the manner of death was homicide, which means H.R. died at the hands of another person and due to injuries to her brain. He testified to her specific injuries, including her bruises and brain injuries. He tested her blood and did not find any chronic coagulation disorder or clotting disorder from those tests or his autopsy.

During the autopsy, he noted bruising and chronic inflammation in the genitalia. The age of the bruising looked similar to the other bruises, which looked like fresh bruises occurring around the same time as the other injuries. During his testimony, the jury was shown photographs of H.R.’s injuries and photographs taken during the autopsy.

Dr. Chrostowski testified that the combination of injuries indicated two separate impacts that were severe enough to cause severe brain injury. The impact injuries to H.R.’s head were 135 degrees apart, not 90 degrees as the defense suggested. A fall from a couch on H.R.’s right side would not have caused the injuries on the left side of her head or neck. Each of the bruises “indicates a single impact.” While it was possible that a fall from a couch could be potentially serious and injurious, it has only been documented in a handful of studies. “The reverse is numerous. That short falls do not cause severe injuries.” Medical intervention very seldomly causes bruises, but it is possible. Dr. Chrostowski testified that H.R.’s bruises were not the result of a clotting disorder because she did not have them inside her body, in her organs or her GI tract, for example. He testified that the “optic nerve sheath hemorrhages ... finding is really bad, it’s really bad.”

Lieutenant Hyatt was the paramedic who arrived on the scene and placed the C-collar on H.R. He believed that it was very unlikely that the C-collar would cause bruising.

In addition to the medical evidence, the State presented the testimony of H.R.’s grandmother, who testified that she babysat H.R. the night before the incident and that she did not notice any markings or bruises on H.R. when she gave H.R. a bath. H.R.’s mother, Tate’s girlfriend at the time, testified that she left H.R. in Tate’s care the morning of the incident and that she did not notice bruises on her face that morning. When she returned home after the incident, she observed bruising all over H.R.’s face.

In sum, the whole of the State’s evidence proved that H.R. was abused while in Tate’s care and that her death was caused by the abuse. H.R.’s two treating doctors and the medical examiner provided overwhelming expert testimony from which a jury could conclude beyond a reasonable doubt that H.R.’s injuries were inflicted by someone else. Dr. Luque specifically testified that within a reasonable degree of medical certainty, H.R.’s injuries were inflicted and not accidental. This was more than the State was required to prove. See Buenoano v. State, 527 So.2d 194, 197-98 (Fla.1988) (“Expert medical testimony as to the cause of death need not be stated with reasonable certainty in a homicide prosecution and is competent if the expert can show that, in his opinion, the occurrence could cause death or that the occurrence might have or probably did cause death.” (citing Delap v. State, 440 So.2d 1242 (Fla.1983))). Tate’s hypothesis of innocence was that H.R. suffered her injuries from a fall off the couch and that her bruises were the result of clotting issues caused by the brain injuries, and while Tate presented evidence that this was possible, the State presented evidence to rebut that theory.

Tate suggests that the State was required to prove that it was impossible for H.R.’s injuries to be the result of an accidental fall. But this is inaccurate. In order to find guilt beyond a reasonable doubt, the jury must have an abiding conviction of guilt that does not waver or vacillate. See Fla. Std. Jury Instr. (Crim.) 3.7. “A reasonable doubt is not a mere possible doubt, a speculative, imaginary or forced doubt.” Id. Even if the evidence could present a mere possible doubt as to the cause of H.R.’s injuries, this would not be enough to take the issue away from the jury when the State presented evidence from which the jury could find beyond a reasonable doubt that Tate inflicted the injuries on H.R. Once the State presented evidence that was inconsistent with the defense’s theory of events and from which a jury could infer guilt to the exclusion of all other inferences, it became a question for the jury to decide. See Orme v. State, 677 So.2d 258, 262 (Fla.1996).

Tate suggests that the State failed to prove that Tate intentionally abused H.R. “Because direct evidence of intent is rare, and intent is usually proven through inference, ⅛ trial court should rarely, if ever, grant a motion for judgment of acquittal on the issue of intent.’ ” Manuel v. State, 16 So.3d 833, 835 (Fla. 1st DCA 2005) (quoting Washington v. State, 737 So.2d 1208, 1215 (Fla. 1st DCA 1999)); see also Green v. State, 90 So.3d 835, 837 (Fla. 2d DCA 2012) (holding that intent “is rarely susceptible of direct proof’ and “is almost always shown solely by circumstantial evidence” (citing Sebastiano v. State, 14 So.3d 1160, 1165 (Fla. 4th DCA 2009))); S.D. v. State, 882 So.2d 447, 448 (Fla. 4th DCA 2004) (“Intent to commit a battery must be determined by the circumstances surrounding the touching or striking of the victim.”)- “Where reasonable persons may differ as to the existence of facts tending to prove ultimate facts, or inferences to be drawn from the facts, the case should be submitted to the jury.” King v. State, 545 So.2d 875, 378 (Fla. 4th DCA 1989) (holding that where “the evidence lend[ed] itself to different reasonable inferences on the issue of intent, ... the trial court properly submitted the case to the jury to determine if King was criminally liable for the death of the victim”).

There was testimony that the extent and nature of H.R.’s injuries indicated that the injuries were intentionally inflicted. In addition, the State presented evidence suggesting that Tate had sexually abused H.R. that morning. Tate himself brought up the issue of sexual abuse when he mentioned it to the responding officers on the day of the offense. At the house, Detective Warren noticed a quarter-size stain that appeared to be blood on a purple pair of underwear on Tate’s bed. Tate told Detective Warren that Tate noticed the stain when he was dressing H.R. and that Tate asked H.R. if someone had been molesting her. Detective Valles also testified that at the station, Tate told Valles that when he was changing H.R.’s panties that morning, “he noticed the one she was wearing had blood on it in the crotch area[ ] and he asked her has anyone been molesting you.” In addition, before Tate was taken down to the station, he changed clothes and was seen by one of the detectives placing a napkin in his pocket. This napkin was recovered at the station and appeared to have blood stains on it; it was later proven to contain both H.R.’s and Tate’s DNA. The medical evidence also showed that H.R. had inflammation and bruising on her genitalia. This evidence suggesting sexual abuse, when considered with the strong medical evidence of inflicted injuries, was sufficient for the jury to conclude beyond a reasonable doubt that H.R. had the requisite intent.

Tate relies on two cases in arguing that the State’s circumstantial evidence was insufficient to sustain his convictions. See Ballard v. State, 923 So.2d 475 (Fla.2006); Miranda v. State, 113 So.3d 51 (Fla. 2d DCA 2013). These cases are distinguishable because they involved purely circumstantial evidence that the defendants were the perpetrators of the crimes and the State did not present evidence inconsistent with the defendants’ theories of innocence. See Ballard, 923 So.2d at 476-82; Miranda, 113 So.3d at 52-55. Here, there was testimony from H.R.’s mother that Tate was home alone with H.R. when she suffered the injuries, and Tate admitted to police that he was home alone with H.R. Therefore, there was no question regarding the identity of the perpetrator. And as discussed above, the State presented evidence that was inconsistent with Tate’s reasonable hypothesis of innocence that the injuries were the result of an accidental fall off the couch.

We conclude that there was competent, substantial evidence to support Tate’s convictions for aggravated child abuse and felony murder.

II. Jury’s request for transcripts

Tate further argues that the trial court committed fundamental error in answering the jury’s question regarding access to the transcripts of the testimony. He contends that the trial court’s answer may have misled the jury into believing that read-backs of testimony are prohibited.

During deliberations, the jury asked the following question: “We the jury respectfully request an interpretation of the law as it pertains to our access to court transcripts of witness testimony.” The State suggested that the trial court “tell them that they can[’t] get that and that they have to rely on their open memory.” Defense counsel said that he agreed. The trial judge did not “think it would be appropriate for us to tell them we can’t give you the transcript, but we can let you have the testimony read back to you.” So the trial court decided to tell the jury that “transcripts of witness testimony are not available. You must rely on your recollection of the witness’s testimony.” Defense counsel twice again stated that he was fine with that.

During the pendency of Tate’s direct appeal, the supreme court held that when the jury submits a general request for transcripts, it is error to instruct the jury members to rely on their own recollection of the testimony without informing them that they may request a read-back of testimony. Hazuri v. State, 91 So.3d 836, 845 (Fla.2012). This is because “[a] jury is composed of laypersons often unfamiliar with legal terms of art[ ] and there should be no magic words required for a read-back request, especially when the intent of the jury’s request for transcripts is clear.” Id. The court adopted two rules: “(1) a trial court should not use any language that would mislead a jury into believing read-backs are prohibited, and (2) when a jury requests trial transcripts, the trial judge should deny the request, but inform the jury of the possibility of a read-back.” Id. at 846.

In Hazuri, the jury made a general request for trial transcripts, and “the trial court instructed the jury ... to rely on its own collective recollection of the evidence, contrary to defense counsel’s suggestion that the trial court should inform the jury of the availability of read-backs.” Id. Defense counsel in Hazuri objected and asked the trial court to note the objection for the record. The supreme court held that the trial court “erred in failing to inform the jury of its right to request a read-back in response to its request for trial transcripts” and “in failing to instruct the jury to clarify which portion of the testimony the jury wished to review.” Id. at 846. Because the trial court never clarified which portion of the transcripts the jury wished to review, the supreme court could not determine the effect of the error and therefore reversed for a new trial. Id.

In this case, the trial court committed the same error as in Hazuri, But in this case, defense counsel did not object. In fact, he agreed to the trial court’s response to the jury’s question. Therefore, this case is distinguishable from Hazuri and the issue was not preserved in this case. See id. at 840 (finding it significant that defense counsel suggested that the trial court inform the jury about the possibility of read-backs); see also State v. Barrow, 91 So.3d 826, 835 (Fla.2012) (noting that a similar error in that case was preserved by defense objection).

We conclude that this error does not amount to fundamental error. See Delestre v. State, 103 So.3d 1026, 1028 (Fla. 5th DCA 2012) (citing Frasilus v. State, 46 So.3d 1028, 1031 (Fla. 5th DCA 2010)). “One reason for appellate courts’ reluctance to find fundamental error is to discourage the creation of ‘gotchas’ whereby the defense is allowed to sit on its rights and say nothing until after it sees whether the jury returns an adverse verdict.” Id. (citing Hendricks v. State, 34 So.3d 819, 830 (Fla. 1st DCA 2010)). “Furthermore, the failure of a defense attorney to request instructions on the availability of a read-back may well be strategic” in that “[djefense counsel may well believe that it would not be in the defendant’s best interest to have certain testimony emphasized.” Id.

As the State points out, this court previously held in LaMonte v. State, 145 So.2d 889, 892-93 (Fla. 2d DCA 1962), that the trial court committed fundamental error when the jury posed two specific questions about the testimony and the trial court failed to read back the testimony. But the court in LaMonte relied on an old statute, which required a mandatory read-back upon a question by the jury showing any doubt or disagreement about the testimony. Id. at 893. That statute has since been repealed and replaced with a procedural rule making read-backs discretionary with the trial court. See Frasilus, 46 So.3d at 1031-32 (explaining that the applicable statute when LaMonte was decided required a mandatory read-back but that the statute was repealed and replaced with Florida Rule of Criminal Procedure 3.410, which was subsequently revised to make the read-back discretionary). Therefore, LaMonte is not applicable to this case, and Tate is not entitled to a new trial based on the trial court’s erroneous response to the jury’s inquiry regarding transcripts.

III. Conclusion

Based on the reasoning set forth above, we affirm Tate’s convictions for felony murder and aggravated child abuse.

Affirmed.

SILBERMAN and KELLY, JJ., Concur.

      . Below, Tate also made the specific argument that the offenses of aggravated child abuse and felony murder must be merged because there was only one act of aggravated child abuse. This specific issue is different from the one Tate now asserts on appeal. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003).

      . We note that the special circumstantial evidence standard applied by Florida courts has been called into question by the Fifth District in Knight v. State, 107 So.3d 449 (Fla. 5th DCA 2013). See also Rocker v. State, 122 So.3d 898 (Fla. 2d DCA 2013) (Villanti, J„ dissenting) (agreeing with Knight that the supreme court should reconsider the special circumstantial evidence standard); State v. Sims, 110 So.3d 113, 117-18 (Fla. 1st DCA 2013) (Thomas, J., dissenting) (same).

      . We note that the trial court did not have the benefit of Hazuri because it was decided in May 2012, a year after the trial in this case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David Leroy WHARTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1480.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.

      Howard L. Dimmig, II, Public Defender, and Pamela H. Izakowitz, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

David Leroy Wharton appeals from the judgment and prison sentence imposed after the circuit court found that he had violated his sex offender probation. Wharton contends that his violation was not willful, and the record supports his contention. The State concedes error. Accordingly, we reverse and remand for Wharton’s probation to be reinstated.

In 2004, Wharton entered guilty pleas to two counts of sexual battery and two counts of lewd or lascivious molestation. Before he entered his pleas, Wharton was examined by mental health experts who found that he had several mental and emotional deficits, including mental retardation. Furthermore, his formal education was limited, and he could not read or write. After Wharton was found competent to proceed, his pleas were accepted, and he was sentenced to ten years in prison to be followed by five years of probation. He was also declared a sexual predator.

Wharton was released from prison and began serving his probátion in September 2012. A few months later, in January 2013, an affidavit of violation of probation was filed alleging that Wharton violated condition 3 of his probation by leaving Pasco County without first obtaining the consent of his probation officer. In addition, he allegedly violated condition 10 by entering a park — Hillsborough State Park — where children gather. These violations, occurring on the same day, came to the attention of Wharton’s probation officer through review of the electronic monitoring GPS points on his ankle bracelet.

At the hearing on the violation of probation, Wharton did not contest the fact of either allegation. Rather, he contended that his violations were not willful, and the evidence supported his contention that he was not aware that he had left Pasco County. He was cared for by his sister, who took him with her on an errand to visit a sick friend. She did not inform him where they were going, and he never left her sight. Wharton testified that signs indicating that they were entering Hills-borough State Park did not alert him that he was in violation of his probation because he cannot read. Although the GPS monitor reports demonstrated that he was in Hillsborough County for forty minutes, Wharton did not intentionally either leave Pasco County or enter Hillsborough State Park. No evidence was presented to contest Wharton’s testimony that his violations were not willful. Nevertheless, the circuit judge revoked his probation and sentenced him to fifty years in prison, with credit for time served.

Probation can be revoked upon a finding that a violation is willful and substantial. Parker v. State, 980 So.2d 1223, 1224 (Fla. 2d DCA 2008). On review of an order of revocation of probation, the appellate court first examines whether competent substantial evidence supports the trial court’s finding of a willful and substantial violation. Savage v. State, 120 So.3d 619 (Fla. 2d DCA 2013). In this case the trial court’s finding is not supported. And, in conceding error, the State pointed out that it is the State’s burden to prove by the greater weight of the evidence that the probation violation is willful and substantial. See Hines v. State, 789 So.2d 1085, 1086 (Fla. 2d DCA 2001). The State did not carry its burden in this case, and, as a result, the trial court abused its discretion in revoking Wharton’s probation. See Savage, 120 So.3d 619.

Because no evidence demonstrated that Wharton committed willful violations, we reverse the order of revocation and remand for the trial court to reinstate Wharton on probation within thirty days of the issuance of the mandate in this case.

Reversed and remanded.

CASANUEVA, CRENSHAW, and BLACK, JJ., Concur.


author: LaROSE, Judge. ALTENBERND, Judge,

text:
    Kevin S. DEMERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1647.
    District Court of Appeal of Florida, Second District.
    Nov. 8, 2013.
    Rehearing Denied Dec. 5, 2013.
    Kevin S. Demers, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Kevin Demers appeals an order denying his motion to withdraw a guilty plea. We affirm on all issues but write to emphasize the importance of clarity and completeness in the plea colloquy. See Fla. R. Crim. P. 3.172(c).

The State charged Mr. Demers with two counts of battery on a law enforcement officer and one count of trespass. He represented himself. Mr. Demers entered a negotiated plea to one count of battery on a law enforcement officer in exchange for the State’s nolle prosse of the other two counts, a withhold of adjudication, and a sentence of eighteen months of probation. Mr. Demers now argues that his guilty plea was involuntary because he thought he was pleading no contest. Allegedly, he would not have pleaded guilty because it would foreclose a civil suit for wrongful arrest and would affect adversely his business opportunities.

The trial court conducted a lengthy plea colloquy, during which it repeatedly used the words “the plea,” but rarely in connection with the word “guilty.” Twice, however, the trial court referred to a guilty plea, telling Mr. Demers, “You don’t have to plead guilty; instead, you could have a trial.... If you enter a guilty plea and receive a withhold of adjudication, you won’t have the right to take an appeal.” The trial court never used the words “no contest” or “nolo contendere.” After the colloquy, Mr. Demers completed the plea form himself, signed it, and told the trial court that everything on the form was correct. However, he checked the “nolo contendere” box rather than the “guilty” box. Apparently, the trial court did not review the completed form. The judgment and sentence reflect a guilty plea.

According to Mr. Demers, he believed he had pleaded no contest until he received a copy of his judgment and sentence. He filed a motion to withdraw his plea, asserting that he never entered a guilty plea. After a hearing, the trial court found that, while the plea colloquy “is not a model of clarity,” Mr. Demers knew he was entering a guilty plea. The trial court denied the motion to withdraw the plea.

The hearing transcript confirms that the trial court’s plea colloquy, though lacking in precision, twice mentioned pleading guilty. Consequently, Mr. Demers knew that the trial court was accepting a guilty plea. We see no error in the denial of the motion. We are confident, however, that a more carefully crafted plea colloquy and an examination of the completed plea form would have made a motion to withdraw the plea unnecessary.

Affirmed.

SILBERMAN, J., Concurs.

ALTENBERND, J. Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in the decision to affirm the denial of Mr. Demers’ postconviction motion to withdraw his plea. I write to comment that it is not obvious to me that Mr. Demers would have had a better chance in a lawsuit alleging false arrest against the police officer who arrested him for battery on a law enforcement officer if he had pleaded no contest as compared to guilty. The difference between these two pleas in modern practice is slight. See Behm v. Campbell, 925 So.2d 1070, 1071 (Fla. 5th DCA 2006) (holding that arrestee who pleaded no contest to resisting arrest was foreclosed from collaterally attacking the legality of that arrest in a civil action); see also Montgomery v. State, 897 So.2d 1282 (Fla.2005). Mr. Demers’ business opportunities are undoubtedly most affected by the fact that the trial court withheld adjudication, preventing him from being treated as a convicted felon. This plea occurred as the jury was ready to be sworn for a trial in which Mr. Demers planned to represent himself. The trial court prudently urged the State to make a final effort to negotiate a plea and carefully explained to Mr. Demers the benefit of the State’s offer to allow the trial court to withhold adjudication.


author: CASANUEVA, Judge.

text:
    Yusef FURQAN, Petitioner, v. STATE of Florida, Respondent.
    No. 2D12-5696.
    District Court of Appeal of Florida, Second District.
    Nov. 13, 2013.
    Howard L. Dimmig, II, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Judge.

Yusef Furqan petitions this court for a writ of certiorari, claiming that the circuit court departed from the essential requirements of the law in denying him the appointment of independent evaluators to opine whether he continued to meet the criteria for involuntary commitment. The State has conceded that the circuit court erred in denying Mr. Furqan’s request, and we grant the petition.

I. Background

In 2008, stemming from a charge of battery upon an emergency medical care provider, Yusef Furqan stipulated to an adjudication of not guilty by reason of insanity and was committed to the Department of Children and Family Services for inpatient treatment. The circuit court retained jurisdiction over him pursuant to sections 916.15 and 916.16, Florida Statutes (2008). The last statutorily-mandated hearing of record, to determine if continued commitment was indicated, was held in June 2011. The circuit court at that time found that Mr. Furqan continued to meet the criteria for further involuntary commitment, and that finding was upheld in Furqan v. State, 91 So.3d 913, 915 (Fla. 2d DCA 2012). On July 19, 2012, a status check on Mr. Furqan’s continued commitment was scheduled but continued several times at the request of his new counsel. At a subsequent status check in early September 2012, the court was informed that Mr. Furqan had been transferred to a different facility and that his new doctor at that facility was of the opinion that he was not fit for release but had not yet written a report to that effect. Mr. Furqan’s counsel requested and was granted another continuance so she could confer with the new doctor, obtain a written report, and confer with her client. Based on further unavoidable delays, the final status check was held on October 26, 2012.

At this October 26 status check, Mr. Furqan’s counsel related that the new doctor had diagnosed Mr. Furqan as suffering from intermittent explosive disorder, poly-substance dependence, and antisocial personality disorder. Counsel further pointed out that the new doctor’s diagnoses contained an additional finding, i.e., the diagnosis of an intermittent explosive disorder, a diagnosis that the earlier examining physicians had not made in 2011. Counsel further noted that the earlier examining physicians had recommended discharge to the community via probation or some form of controlled release. Her client was also claiming that he was not currently prescribed any psychotropic medications, and although his new doctor had noted certain recent “incidents” at the facility, Mr. Furqan was denying most of them. Based on what counsel concluded were disputed issues relative to Mr. Furqan’s continued need for involuntary commitment, counsel requested appointment of independent evaluators and, based on their report, potentially a full evidentiary hearing on continued involuntary commitment. The circuit court denied her request, saying:

Up until [the new doctor’s] report there was some dispute about whether he should be committed involuntarily. And there were doctors suggesting that he should not be and recommending that he not be. And because that issue was in dispute we held a hearing. And I disagreed with the opinion of the doctors from [the facility where he was at that time]. I made numerous findings on all of that. We had a lengthy hearing on all of that and I found that he did meet criteria to continue to be remaining [sic] involuntarily hospitalized and that he should not be released and that there was no plan for his release. And that was all taken up on appeal. There’s a lengthy opinion that’s been issued by the appellate court talking about that hearing and affirming the court’s decision on that. And the only thing now that’s changed since that time is he’s been relocated from [his prior facility] to this facility that he’s now in, in South Florida where he’s now been evaluated by their doctor who says that he should remain involuntarily committed, that he does suffer from a mental illness, that he is [a] danger to the community, and all the things that I found at the time of the hearing.... And so, I don’t know what we would have a hearing for. There’s no issue in dispute.... And the evidence is significantly heavier now in terms of keeping him committed than it was when we actually had the hearing and I didn’t release him. So there’s no reason to set a hearing....
So, until someone at his [current] facility says he no longer meets criteria he would remain involuntarily placed and it’s good to have a written report now, that’s thorough and updated and current •with his current placement so we fully understand his situation, where he is and how he’s doing. And it just solidifies that he continues to meet criteria.

It is from this denial that Mr. Furqan timely petitioned this court.

II. Standard of Review

We review the circuit court’s order to determine if it is a departure from the essential requirements of the law, resulting in material injury for the remainder of the case that cannot be corrected on appeal. This is a narrow review requiring us to find “ ‘something far beyond legal error. It means an inherent illegality or irregularity, an abuse of judicial power, an act ... disregarding] procedural requirements, resulting in a gross miscarriage of justice.’ ” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527-28 (Fla.1995) (quoting Jones v. State, 477 So.2d 566, 569 (Fla.1985) (Boyd, C.J., concurring specially))- We find such gross miscarriage of justice in this case: Mr. Furqan has been denied his statutory right to independent experts and potentially a hearing on whether he continues to be, since June 2011, a danger to society, i.e., he has suffered a denial of due process affecting a basic liberty interest.

III. Discussion

Although the State has properly conceded that Mr. Furqan has met the requirements for obtaining a writ of certiora-ri in this proceeding, and so that in the future the same error will be avoided in protecting the important liberty interest of persons acquitted by reason of insanity but involuntarily committed, we draw the circuit court’s attention to Johnson v. Feder, 485 So.2d 409 (Fla.1986) (adopting the holding of McShay v. State, 447 So.2d 444 (Fla. 2d DCA 1984)). Johnson has important parallels with Mr. Furqan’s case and controls the disposition of Mr. Furqan’s petition.

In Johnson, the supreme court construed section 916.15, Florida Statutes (1981), and the relevant applicable rules, Florida Rules of Criminal Procedure 3.217 and 3.218. The court determined that the statute required that a hearing be held after each report by the hospital administrator of the facility where the defendant was committed, if the defendant requested such hearing and that this requirement remained regardless of whether the administrator recommended release or continued commitment. 485 So.2d at 411. The supreme court found that the statutory language was clear and unambiguous and required the report (a) no later than six months after the date of admission, (b) prior to the end of any period of extended hospitalization — -which rule 3.218 interpreted to mean not more than one year — and (c) at any time the administrator determined that the defendant no longer met the criteria for continued involuntary commitment. Id. The committing court’s lack of discretion in these matters could not be clearer:

Thus, it can be seen that both the statute and the rule require a filed report and a judicial hearing following the hospital administrator’s annual determination of an insanity acquittee’s continued need for involuntary hospitalization, regardless of the substance of that determination.

485 So.2d at 412. The statute leaves it to the patient and his or her counsel’s discretion whether to request a hearing and appointment of independent experts prior to any such hearing.

IV. Conclusion

Defense counsel exercised Mr. Furqan’s rights pursuant to the statute and criminal rules to a hearing and appointment of independent experts to examine him after receipt of the (2012) annual report of the administrator of the facility where he was housed. The circuit court departed from the essential requirements of the law in denying him these rights.

Petition for writ of certiorari granted, order quashed, and cause remanded with directions to appoint at least two but not more than three independent experts to examine Mr. Furqan to determine whether he continues to meet the criteria for involuntary commitment. If Mr. Furqan subsequently requests a further evidentiary hearing, it must be accorded him.

DAVIS, C.J., and CRENSHAW, J., Concur.

      . Although the district courts have not been consistent in treating this type of appeal as a petition for writ of certiorari or a direct appeal, see, e.g., Furqan v. State, 91 So.3d 913, 914 n. 1 (Fla. 2d DCA 2012), we conclude that reviewing it as a petition for certiorari is the better course in this instance. See also note 5, infra.

        . Sections 916.15 and 916.16, Florida Statutes (2008), provide the procedure under which a defendant in Mr. Furqan's circumstances shall be committed initially and what shall occur subsequently:
      916.15 Involuntary commitment of defendant adjudicated not guilty by reason of insanity.—
      (1) The determination of whether a defendant is not guilty by reason of insanity shall be determined in accordance with Rule 3.217, Florida Rules of Criminal Procedure.
      (2) A defendant who is acquitted of criminal charges because of a finding of not guilty by reason of insanity may be involuntarily committed pursuant to such finding if the defendant has a mental illness and, because of the illness, is manifestly dangerous to himself or herself or others.
      (3) Every defendant acquitted of criminal charges by reason of insanity and found to meet the criteria for involuntary commitment may be committed and treated in accordance with the provisions of this section and the applicable Florida Rules of Criminal Procedure. The department shall admit a defendant so adjudicated to an appropriate facility or program for treatment and shall retain and treat such defendant. No later than 6 months after the date of admission, prior to the end of any period of extended commitment, or at any time the administrator or designee shall have determined that the defendant no longer meets the criteria for continued commitment placement, the administrator or designee shall file a report with the court pursuant to the applicable Florida Rules of Criminal Procedure.
      (4)In all proceedings under this section, both the defendant and the state shall have the right to.a hearing before the committing court. Evidence at such hearing may be presented by the hospital administrator or the administrator’s designee as well as by the state and the defendant. The defendant shall have the right to counsel at any such hearing. In the event that a defendant is determined to be indigent pursuant to s. 27.52, the public defender shall represent the defendant. The parties shall have access to the defendant’s records at the treating facilities and may interview or depose personnel who have had contact with the defendant at the treating facilities.
      916.16 Jurisdiction of committing court.—
      (1) The committing court shall retain jurisdiction over any defendant involuntarily committed due to a determination of incompetency to proceed due to mental illness or a finding of not guilty by reason of insanity pursuant to this chapter. The defendant may not be released except by order of the committing court. An administrative hearing examiner does not have jurisdiction to determine issues of continuing commitment or release of any defendant involuntarily committed pursuant to this chapter.
      (2) The committing court shall retain jurisdiction in the case of any defendant placed on conditional release pursuant to s. 916.17. Such defendant may not be released from the conditions of release except by order of the committing court.

      . This opinion was filed on July 6, 2012. It reviewed the circuit court’s June 2011 order on continued involuntary commitment. Mr. Furqan’s first status check in 2012 was held on July 19, 2012. It may be that the circuit court considered that the July 6, 2012, opinion of this court obviated the need for Mr. Furqan's annual review in 2012. See 91 So.3d at 914 n. 1 (noting that certiorari proceedings generally provide quicker resolution of disputes, but that had not been the case for Mr. Furqan in that proceeding).

      . The circuit court was vigilant and avoided denominating each "status check” a "hearing.” So although the circuit court met numerous times with counsel, Mr. Furqan was never present, and any information presented was done informally.

      . In Johnson, Mr. Johnson, who was involuntarily committed, had been denied a hearing when the reviewing psychiatric personnel at the facility where he was a patient had reported that he continued to meet the criteria for continued involuntary commitment. He then petitioned the Third District for a writ of mandamus, which the district court denied. 485 So.2d at 410. Given the nondiscretion-ary language of the statute and the rule that the supreme court in Johnson discussed and we discuss below, it appears that a petition for writ of mandamus would also be a proper method to invoke our jurisdiction in circumstances like Mr. Furqan's.

      . The supreme court in Johnson, 485 So.2d at 410, was reviewing the 1981 version of section 916.15, but it and its applicable rules presently remain substantively the same.

      . Rule 3.218(b) further affords the court, the state, and the patient the right to the appointment of independent experts to examine the patient "prior to any hearing held pursuant to this Rule.”


author: BLACK, Judge. ALTENBERND, Judge,

text:
    Jennifer BELLEVUE, Appellant, v. FRENCHY’S SOUTH BEACH CAFÉ, INC., Appellee.
    No. 2D12-4537.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2013.

      Celene H. Humphries and Maegen P. Luka of Brannock & Humphries, Tampa; Cory A. Baird of Baird Law Group, Tampa; and Jeffery Gordon of Maney & Gordon, P.A., Tampa, for Appellant.
    John A. Guyton, III, Gregory D. Jones, and David P. Mitchell of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellee.
   BLACK, Judge.

Jennifer Bellevue sued Frenchy’s South Beach Café, Inc. (“Frenchy’s”), for personal injury damages that she sustained when she was attacked inside Frenchy’s premises by one or more intoxicated patrons who had been consuming alcohol there for several hours prior to “last call” when the attack occurred. Before trial, following a hearing on Frenchy’s motion in limine, the court ruled that only twelve of sixty prior incidents occurring in and around Frenchy’s would be admissible at trial. Benefitting from the court’s ruling, Frenchy’s successfully advanced its principal defense that Frenchy’s was a family restaurant and that the attack on Ms. Bellevue was unforeseeable. The jury returned a verdict in favor of Frenchy’s. Because the trial court’s ruling as to the admissibility of the prior incidents was contrary to Florida law, we reverse.

I.Background

Frenchy’s is a popular restaurant and beach bar located in Clearwater just one block from the beach. On the night Ms. Bellevue was attacked she arrived at Frenchy’s just before it closed, planning to give a ride home to her roommate, Shelly Kneuer, one of the bartenders. Testimony at trial established that a family of tourists from Ireland (“the Irish family”) who had been drinking heavily and were rowdy and disorderly remained inside the restaurant. The only other people in the restaurant at this time were Ms. Bellevue’s friend Christopher Malek, a manager named Jonathan Kirby, and Ms. Kneuer.

Just prior to the fight that resulted in Ms. Bellevue’s injuries, words were exchanged between one of the Irish family members and Mr. Malek. The restaurant manager told Mr. Malek to let Ms. Kneuer, the bartender, handle the issue as he walked upstairs to begin his closeout routine for the night. This left Ms. Kneuer, a petite woman, as the only employee managing the escalating rowdiness. The verbal exchange intensified, and soon thereafter Ms. Kneuer was physically bumped or shoved by one of the Irish family members. Mr. Malek and Ms. Bellevue entered the fray, which became physically violent. By the time the police arrived, Ms. Bellevue had been severely beaten. The Irish family was arrested but subsequently jumped bail and left the country.

Ms. Bellevue filed suit against Frenchy’s for her injuries. The essence of the complaint is that Frenchy’s was on notice that its patrons had a propensity to become rowdy or violent and that it failed to maintain adequate security to protect its patrons.

II. Frenchy’s Motion in Limine

Prior to trial, Frenchy’s moved in limine to preclude Ms. Bellevue from introducing into evidence sixty incidents that occurred either in Frenchy’s or near its premises. Frenchy’s contended that these incidents were inadmissible because they were not similar crimes or were not probative of the issue of foreseeability. Ms. Bellevue argued that the incidents, which dated back four-and-a-half years prior to the subject attack, were relevant on the issue of whether the attack was reasonably foreseeable and whether Frenchy’s took reasonable measures to prevent the attack. The incidents were obtained either from police reports or from Frenchy’s management logs. It was Ms. Bellevue’s intention to elicit testimony from her security expert that based upon the volume and nature of these prior incidents, Frenchy’s was negligent in not taking adequate measures to protect against the type of attack suffered by Ms. Bellevue.

The court ruled that only those incidents “involving damage to persons or property” and “starting [on], ending [on], or involving the premises” would be admitted. As a result, only twelve of the sixty incidents were admitted. The court cited no case law in support of its ruling; however, the transcript of the motion in limine hearing reflects a misinterpretation of Florida law as to prior incidents which are probative of foreseeability.

III. Analysis

A. Case law

Generally, rulings on motions in limine are reviewed for an abuse of discretion. See, e.g., SourceTrack, LLC v. Ariba, Inc., 958 So.2d 528, 526 n. 2 (Fla. 2d DCA 2007). However, because the court’s ruling in this case was based upon an erroneous interpretation of the applicable case law, our review is de novo. See Sottilaro v. Figueroa, 86 So.3d 505, 507-08 (Fla. 2d DCA 2012) (citing Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011) (reviewing a trial judge’s ruling on a motion in limine)).

The issue of admissibility of prior incidents to establish foreseeability and risk of harm in this context has not been previously addressed by this district. As they did below, the parties have cited instructive case law from the Florida Supreme Court and each of the other four districts. These eases have produced a set of guiding principles.

The starting point is a trilogy of Florida Supreme Court cases: Hall v. Billy Jack's, Inc., 458 So.2d 760 (Fla.1984), Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983), and Stevens v. Jefferson, 436 So.2d 33 (Fla.1983). In each case, the plaintiff sued a bar or bar operator for injuries sustained during a criminal attack in or around the bar. Stevens and Allen hold that foreseeability may be established “by proving that, based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor’s patrons.” Allen, 438 So.2d at 357; accord Stevens, 436 So.2d at 35 (“A tavern owner’s actual or constructive knowledge, based upon past experience, that there is a likelihood of disorderly conduct by third persons in general which may endanger the safety of his patrons is also sufficient to establish foreseeability.”). The court in Hall further elucidated:

For[e]seeability may be established by proving that a proprietor had actual or constructive knowledge of a particular assailant’s inclination toward violence or by proving that the proprietor had actual or constructive knowledge of a dangerous condition on his premises that was likely to cause harm to a patron. A dangerous condition may be indicated if, according to past experience (i.e., reputation of the tavern), there is a likelihood of disorderly conduct by third persons in general which might endanger the safety of patrons or if security staffing is inadequate. These indicia are not exhaustive.

458 So.2d at 761-62 (citations omitted).

Recognizing and applying the holdings of Stevens, Allen, and Hall, the Fourth District concluded that “[fjoreseeability is determined in light of all the circumstances of the case rather than by a rigid application of a mechanical ‘prior similars’ rules.” Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 331 (Fla. 4th DCA) (citation omitted), dismissed, 589 So.2d 291 (Fla. 1991), and disapproved on other grounds, Angrand v. Key, 657 So.2d 1146 (Fla.1995).

While evidence of prior similar incidents [is] helpful, a rule limiting evidence of foreseeability to prior similar incidents deprives the jury of its role in determining the question of foreseeability. Although evidence of a violent crime against a person may be necessary initially to establish the issue of foreseeability, evidence of lesser crimes against both persons and property is also relevant and admissible to determining that issue.

Id. (citations omitted); accord Czerwinski v. Sunrise Point Condo., 540 So.2d 199, 201 (Fla. 3d DCA 1989).

In Shelburne, the plaintiffs were shot in the Rodeo Bar parking lot after they and others involved had been drinking at the bar. The defendant argued that in order to establish foreseeability, the plaintiffs had to demonstrate that the owner had actual or constructive knowledge of “similar criminal acts against invitees on their property.” 576 So.2d at 331. The court rejected the argument and allowed into evidence fifty-eight offense reports pertaining to prior criminal incidents on the bar’s premises. In affirming the trial court’s ruling, the Fourth District stated that had the trial court excluded the fifty-eight offense reports at the Rodeo Bar, “the exclusion effectively would have prevented [the victims] from showing foreseeability through [the proprietors’] knowledge of their patrons’ dangerous and ‘disorderly conduct.’ ” Id. The court concluded that “a ruling limiting admissibility to those reports containing only similar criminal activity would be irreconcilable with the supreme court’s holdings in Stevens, Allen, and Hall.” Id. We agree with this statement of the law.

The First and Fifth Districts have also recognized and applied the holdings in Stevens, Allen, and Hall, as well as Shelburne. See Hardy v. Pier 99 Motor Inn, 664 So.2d 1095, 1097-98 (Fla. 1st DCA 1995); Foster v. Po Folks, Inc., 674 So.2d 843, 844 (Fla. 5th DCA 1996).

Frenchy’s relies heavily on a pair of Third District cases, Admiral’s Port Condominium Ass’n v. Feldman, 426 So.2d 1054 (Fla. 3d DCA 1983), and Ameijeiras v. Metropolitan Dade County, 534 So.2d 812 (Fla. 3d DCA 1988). The Admiral’s Port court concluded that the trial court erred in admitting evidence of “violent crime[s] which had occurred substantial distances away from the premises,” and generally that “[e]vidence of similar crimes committed off the premises and against persons other than the landowner’s invitees is not probative of foreseeability.” 426 So.2d at 1055. Admiral’s Port, decided in January 1983, is of questionable validity in light of the later decided Stevens, Allen, and Hall. The Ameijeiras court more specifically held that “[t]he landowner’s duty arises only when he has actual or constructive knowledge of similar criminal acts committed on his premises.” 534 So.2d at 813. Ameijeiras has been referred to as “an anomaly” given that “its requirement of similar acts in light of Hall, Stevens and Allen is not explained.” See Mulheam v. K-Mart Corp., No. 6:01-cv-523-Orl-31KRS, 2006 WL 2460664 (M.D.Fla. Aug. 23, 2006). Indeed, one year after writing the Ameijeiras opinion the Third District held that “knowledge of prior crimes — against both persons and property — is relevant to the issue of foreseeability, even if the prior crimes are lesser crimes than the one committed against the plaintiff.” Czerwinslci, 540 So.2d at 201. Further, it appears the Third District has narrowed the application of Ameijeiras to those cases involving a public park. See Hill v. City of N. Miami Beach, 613 So.2d 1356, 1357 (Fla. 3d DCA 1993).

We are also persuaded by the Fourth District’s opinion in Odice v. Pearson, 549 So.2d 705 (Fla. 4th DCA 1989), where the court reversed a final judgment in favor of the restaurant and remanded for a new trial, concluding that the trial court erred by excluding reference to police reports concerning prior crimes committed off the restaurant’s property. The court ruled that “[i]n order for a jury to determine if a property owner took reasonable precautions to protect persons on or about the premises from foreseeable criminal activity, a plaintiff must be given the opportunity to establish the type of neighborhood where the incident took place.” 549 So.2d at 706.

B. Application

The effect of the court’s ruling in this case was to preclude Ms. Bellevue from introducing into evidence a substantial number of incidents that were relevant to the foreseeability issue, including (1) the night cook being stabbed in front of the restaurant after he got off work; (2) multiple instances of patrons being kicked out of the bar for harassing employees, being vulgar, being rude, threatening employees, or being so drunk they fell off of a bar stool; (3) patrons being kicked out for fighting; (4) patrons drunk and fighting on the deck; (5) a car being broken into in the parking lot; (6) a minor in possession of alcohol who was armed with a knife out front; (7) a near-fight between two patrons and a waiter; (8) multiple instances of having to stop serving alcohol to patrons because they were “out of control”; (9) multiple instances of drunk patrons being loud and vulgar or threatening; and (10) the police having to be called because two patrons were about to fight.

These incidents, sought to be introduced by Ms. Bellevue, are evidence of Frenchy’s knowledge of “a likelihood of disorderly conduct by third persons in general which may endanger the safety of the patrons.” Hall, 458 So.2d at 762. The ultimate weight accorded those incidents in determining foreseeability is to be decided by the trier of fact — the jury in this case. See, e.g., id.

We cannot say that the court’s erroneous ruling was harmless. The sheer number of relevant but excluded events precludes such a conclusion based not only on the fact that the jury was deprived of knowing about the other incidents but also because Ms. Bellevue’s expert witness was prevented from discussing the incidents and providing an opinion based upon those incidents. It is “ ‘reasonably probable that a result more favorable’ ” to Ms. Bellevue “ “would have been reached’ by the jury” had the court applied the correct law in ruling on the motion in limine. Cf. Southstar Equity, LLC v. Chau, 998 So.2d 625, 681 (Fla. 2d DCA 2008) (quoting Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979)). Additionally, Frenchy’s improperly took advantage of the court’s erroneous ruling by repeatedly casting Frenchy’s as a family restaurant. “ ‘[I]t is improper for a lawyer, who has successfully excluded evidence, to seek an advantage before the jury because the evidence was not presented.’” State Farm Mut. Auto. Ins. Co. v. Thorne, 110 So.3d 66, 74 (Fla. 2d DCA 2013) (quoting JVA Enters., I, LLC v. Prentice, 48 So.3d 109, 115 (Fla. 4th DCA 2010)).

IV. Conclusion

Because the jury is the ultimate arbiter, of foreseeability and, in this case, whether Frenchy’s was negligent in not providing sufficient security on the evening in question, it was entitled to consider evidence that “based on past experience, a proprietor knew of or should have recognized the likelihood of disorderly conduct by third persons in general which might endanger the safety of the proprietor’s patrons.” See Allen, 438 So.2d at 357; Shelburne, 576 So.2d at 331.

In reversing this case for a new trial, we are not mandating that all sixty incidents Ms. Bellevue listed should be admitted into evidence. Rather, the trial court must consider each incident based on the parameters of the case law set forth herein. The admissibility of a given incident should not be based on whether it occurred within the four walls of Frenchy’s or whether it was similar to what occurred in this case. Rather, it must be based on whether or not the event put Frenchy’s on notice that the attack resulting in Ms. Bellevue’s injury was foreseeable.

Reversed and remanded for a new trial.

CASANUEVA, J., Concurs.

ALTENBERND, J. Concurs with opinion.

ALTENBERND, Judge,

Concurring.

On remand, when the trial court evaluates which prior incident reports to admit into evidence, it seems to me that it may be useful for the court to consider more thoroughly the plaintiffs theories of liability in this case. The theories may affect the extent to which some prior incidents are relevant, admissible evidence.

There is no debate that the relationship between a restaurant and its patron is one that invokes a duty of care under negligence law on the part of the restaurant. In Allen v. Babrab, Inc., 438 So.2d 356 (Fla.1983), the supreme court announced that a restaurant has a general standard of care to protect a patron from the tortious conduct of another patron or third party if (1) the restaurant is on notice of the dangerous propensities of the particular third party or (2) there has been a sufficient history of violent conduct by third parties, in general, to require the restaurant to foresee the likelihood of such violent conduct and protect patrons from the known risk.

This two-part general standard of care, which is a proposition of law created by the court, can generate, as a matter of case-specific fact, a variety of specific standards of care. See, e.g., Butala v. Automated Petroleum & Energy Co., Inc., 656 So.2d 173 (Fla. 2d DCA 1995) (discussing the relationship of a general standard of care created by the judiciary and the specific standard of care established by the jury). The specific standard of care depends in large part upon the risks that were foreseeable in light of all the circumstances by an ordinary reasonable person at the time of the occurrence.

In this case, the evidence suggested several different specific standards of care. First, the Irish family may have been sufficiently rowdy earlier in the day such that it should have been foreseeable to a restaurant manager that they were likely to become a risk to patrons later in the evening. If so, a jury could decide that the patrons were owed a specific standard of care requiring the restaurant to remove or deny entrance to the family before the incident occurred.

Second, the family may have been sufficiently rowdy near the time of last call such that a reasonable manager, who had actual knowledge of the family, would have foreseen the risk of violence such that he would not have left one small waitress to handle the situation by herself. If so, a jury could decide that the patrons were owed a specific standard of care requiring the manager either to stay downstairs as added protection or to arrange on the spot for additional protection.

Third, the restaurant may have had a sufficient history of violent conduct by third parties during the late night hours immediately preceding last call such that the restaurant could be reasonably expected to foresee the likelihood that violent conduct would occur during those limited hours. If so, the restaurant might owe a specific standard of care to provide extra security to protect patrons from the known risk at that time.

Finally, the restaurant may have had enough incidents of violent conduct by third parties throughout the entire day to require the restaurant to foresee a broader risk of violence. If so, a jury might conclude that the restaurant owed a specific standard of care to provide additional security whenever the restaurant was open.

As to the first two theories, the incident reports have limited, if any, relevance. Possibly they could demonstrate prior experiences of this manager that might heighten his ability to foresee that the circumstances presented by the family were likely to become a risk. As to the third theory, in order to be relevant, it would seem that the incident reports would need to concern events toward the end of the business day. As to the final theory, a much broader approach to the reports would seem appropriate.

We reverse because the limitations placed on the admissibility of these incident reports, at a minimum, affected the ability of the plaintiff to litigate the third and fourth theories.

      . In ruling on the motion in limine, the trial court admitted twelve incidents. We make no comment on the correctness of the court’s ruling as to those incidents. On remand, each incident sought to be introduced by Frenchy's must be reconsidered in light of this opinion.


author: WALLACE, Judge.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant/Cross-Appellee, v. Lorraine HOY, Appellee/Cross-Appellant.
    No. 2D11-5257.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.
    Rehearing Denied Feb. 4, 2014.

      Frank A. Zacherl, Edward J. O’Shee-han, and Stephen T. Maher of Shutts & Bower, LLP, Miami, for Appellant/Cross-Appellee.
    Michael L. Beckman of Viles and Beck-man, LLC, Fort Myers, and Mark C. Men-ser of Mike Fink Trial Lawyers, P.A., Fort Myers, for Appellee/Cross-Appellant.
   WALLACE, Judge.

GEICO General Insurance Company (GEICO) challenges the trial court’s rulings on its various posttrial motions filed after Lorraine Hoy obtained a favorable verdict on her claim against GEICO for fraud in the inducement. On her cross-appeal, Mrs. Hoy challenges the trial court’s denial of her motion to amend her complaint to add a claim for punitive damages. Because Mrs. Hoy failed to prove that she sustained any damages in reliance on GEICO’s alleged false representations, we reverse on the direct appeal. On Mrs. Hoy’s cross-appeal, we affirm.

I. THE FACTS

On May 20, 2000, Mrs. Hoy was involved in an automobile accident with Jonathan Lipovsky, an uninsured motorist. Ms. Hoy sustained serious injuries in the accident. She was treated at Lee Memorial Hospital (the Hospital) and underwent multiple surgeries. Upon her discharge from the Hospital, Mrs. Hoy owed the Hospital $39,039.75 for her care and treatment.

On June 5, 2000, the Hospital filed a claim of lien for the balance due it in the public records of Lee County, Florida. The Hospital filed its claim of lien in accordance with Lee County’s hospital lien act. The filing of the Hospital’s claim of lien gave the Hospital a lien on any insurance proceeds to which Mrs. Hoy might be entitled as a result of the accident. Stated simply, the Hospital was entitled to be paid in full before Mrs. Hoy received a dime. Uncontradicted evidence presented at trial established that the Hospital had a policy of aggressively enforcing its statutory lien rights.

When the accident occurred, Mrs. Hoy and her husband had their automobile insurance with GEICO. The benefits under the policy included $10,000 in Personal Injury Protection (PIP) benefits. Mrs. Hoy also had uninsured/underinsured motorist (UM) coverage of $10,000 per person and $20,000 per occurrence. The UM coverage was nonstacking. GEICO promptly paid the $10,000 in PIP benefits to the Hospital. This payment left a balance due on the Hospital’s lien of $29,089.75.

On May 22, 2000, GEICO determined that it would tender the available $10,000 in UM benefits to Mrs. Hoy. On June 5, 2000, Joanne Campbell, a GEICO field adjuster, met with Mr. and Mrs. Hoy at the Hoy residence. Mrs. Campbell delivered a check to Mr. and Mrs. Hoy for $10,000. The check was made payable jointly to Mrs. Hoy, to her husband, and to the Hospital. In exchange for the check, Mr. and Mrs. Hoy signed a release for the $10,000 in UM benefits in favor of GEICO.

Of course, Mr. and Mrs. Hoy were unable to cash or to deposit the check for the UM benefits because the Hospital was named on the check as one of the payees. On July 11, 2000, a patient accounts representative for the Hospital wrote a letter to GEICO stating that the Hospital had agreed to accept $5000 of the $10,000 in UM benefits to permit Mr. and Mrs. Hoy to have the remaining $5000 and to satisfy its claim of lien in full.

In accordance with this arrangement, Mrs. Hoy delivered the $10,000 check to the Hospital. GEICO issued two new cheeks for $5000 each, one payable to Mr. and Mrs. Hoy and one payable to the Hospital. A GEICO representative delivered the two new checks to the Hospital and picked up the $10,000 check, which was voided. Mrs. Hoy returned to the Hospital and received her new check for $5000. Finally, the Hospital recorded a satisfaction of its claim of lien and wrote off Mrs. Hoy’s balance of $24,039.75.

II. THE PROCEDURAL HISTORY

In 2001, Mrs. Hoy filed an action against Mr. Lipovsky, the uninsured motorist. In May 2004, almost four years after she had received the $5000 check, Mrs. Hoy filed a separate action against GEICO. In her third amended complaint, Mrs. Hoy asserted four causes of action against GEICO: Count I, breach of contract for UM benefits; Count II, bad faith; Count III, fraud in the inducement; and Count IV, rescission of the release for the $10,000 in UM benefits. The trial court abated Count II, the bad faith claim.

After Mrs. Hoy sued GEICO, it intervened in her action against Mr. Lipovsky. In March 2008, the trial court entered an order consolidating the two actions. The order provided that Counts III and IV of Mrs. Hoy’s action against GEICO would be bifurcated from Count I for trial. In addition, the order provided that Count I of Mrs. Hoy’s action against GEICO would be tried together with her action against Mr. Lipovsky. In a separate ruling, the trial court denied Mrs. Hoy’s motion to amend her complaint to add a claim against GEICO for punitive damages. The only issue tried below was Count III, Mrs. Hoy’s claim for fraud in the inducement. The case went to trial on the fraud claim in April 2011, almost eleven years after the events at issue. The trial lasted three days.

At trial, Mrs. Hoy testified that Ms. Campbell, GEICO’s field adjuster, promised that the Hoys would receive $10,000 in exchange for signing the release. Ms. Campbell denied making such a promise. According to Ms. Campbell, she explained to the Hoys that the Hospital had a statutory lien on the proceeds of any insurance benefits and that it was entitled to the entire amount of the UM benefits to reduce the amount of its lien. Mrs. Campbell also testified that after she delivered the two new checks to the Hospital, Mrs. Hoy never contacted her or anyone else at GEICO to complain that she had only received $5000 instead of the $10,000 allegedly promised. Mrs. Hoy did not testify that she had ever objected to the exchange of the $10,000 check for the new check in the lesser amount.

GEICO moved for a directed verdict on several grounds. In pertinent part, GEI-CO argued that Mrs. Hoy had not presented any evidence that she had sustained an injury to her detriment as a result of the alleged false representations. The trial court did not rule immediately on GEI-CO’s argument about the lack of evidence of injury, taking the matter under advisement.

During her trial testimony, Mrs. Hoy told the jury that she was asking for an award of $5000, the difference between the $10,000 in UM benefits that she was allegedly promised and the $5000 that she had actually received. In closing argument, Mrs. Hoy’s counsel repeatedly urged the jury to award Mrs. Hoy $5000. Nevertheless, the jury returned a verdict awarding Mrs. Hoy $20,000, four times as much as she had requested. The jury’s verdict also included an unauthorized “write-in” award to Mrs. Hoy of “ + court costs + attorney fees” in an unspecified amount. We have not found any explanation in the record concerning how the jury arrived at its $20,000 award.

After the jury rendered its verdict, GEI-CO filed several posttrial motions. These motions included: (1) a motion for new trial; (2) a motion to set aside the verdict and enter judgment in accordance with directed verdict; (3) a motion for jury interviews; and (4) a motion for remittitur or alternatively for a new trial. The trial court denied all of the posttrial motions, except the motion for remittitur, which it granted. In its order on the motion for remittitur, the trial court reduced the damage award to $5000, the amount that Mrs. Hoy and her counsel had requested from the jury. The trial court also struck the jury’s “write-in” award of “ + court costs + attorney fees.” Mrs. Hoy rejected the proposed remittitur and elected a new trial on damages. Thereafter, the trial court entered an order granting Mrs. Hoy a new trial on damages.

GEICO’s appeal followed. Mrs. Hoy cross-appealed the trial court’s order denying her motion to amend the complaint to add a claim for punitive damages.

III. GEICO’S DIRECT APPEAL

A.The Standard of Review

On the direct appeal, we need address only GEICO’s challenge to the trial court’s ruling on its motion for directed verdict and to set aside the verdict and enter judgment in accordance with its motion for directed verdict. Our ruling on this issue moots the remaining issues raised by GEI-CO on its direct appeal.

We apply the de novo standard of review to a trial court’s ruling on a motion for directed verdict. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009). In our review, we apply the same test that the trial court applies in ruling on the motion. Id. This court has previously stated this test as follows:

A motion for directed verdict should be granted only where no view of the evidence, or inferences made therefrom, could support a verdict for the nonmov-ing party. In considering a motion for directed verdict, the court must evaluate the testimony in the light most favorable to the nonmoving party and every reasonable inference deduced from the evidence must be indulged in favor the nonmoving party. If there are conflicts in the evidence or different reasonable inferences that may be drawn from the evidence, the issue is factual and should be submitted to the jury.

Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005) (citations omitted).

B.The Applicable Law

The only cause of action tried in the court below was Mrs. Hoy’s claim against GEICO for fraud in the inducement. The elements of a cause of action for fraud in the inducement are as follows:

1) a false statement concerning a material fact, 2) knowledge by the person making the statement that the representation is false, 3) intent by the person making the statement that the representation will induce another to act upon it, and 4) reliance on the representation to the injury of the other party.

Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994) (citing C & J Sapp Publ’g Co. v. Tandy Corp., 585 So.2d 290, 292 (Fla. 2d DCA 1991)) (emphasis added). Generally speaking, to satisfy the element of an injury, the claimant must establish that he or she has sustained pecuniary damage or injury by which he or she has been placed in a worse position than he or she would have been absent the fraud. 37 C.J.S. Fraud § 68 (2013). “It is of the very essence of an action of fraud or deceit that the same shall be accompanied by damage, and neither damnum absque injuria nor injuria absque damnum by themselves constitute a good cause of action.” Sutton v. Gulf Life Ins. Co., 138 Fla. 692, 189 So. 828, 829 (1939) (quoting Stokes v. Victory Land Co., 99 Fla. 795, 128 So. 408, 410 (1930)). It follows that where the claimant in an action for fraud in the inducement is unable to prove that he or she was injured by the alleged misrepresentation, the trial court must grant a directed verdict on the claim. See Casey v. Welch, 50 So.2d 124, 125 (Fla.1951).

C.Discussion

GEICO argues that the trial court should have granted its motion for directed verdict because Mrs. Hoy failed to establish the damages element of her claim for fraud in the inducement. We agree. In considering GEICO’s argument, the standard of review requires us to assume that GEICO’s representative misinformed Mrs. Hoy about the amount that Mr. and Mrs. Hoy would receive in exchange for signing the release. Even so, Mrs. Hoy sustained no loss in reliance on the alleged misrepresentation. After the payment of the $10,000 in PIP benefits to the Hospital, Mrs. Hoy still owed the Hospital $29,039.75. The limit of the UM benefits payable to Mrs. Hoy under the automobile policy with GEICO was $10,000. In accordance with the applicable statute, the Hospital had a lien entitling it to receive the entire $10,000 UM benefit. Conversely, Mrs. Hoy was not entitled to receive any part of the UM benefit. When Mr. and Mrs. Hoy received $5000 of the UM benefits instead of $10,000 as allegedly promised, she sustained no loss. On the contrary, Mrs. Hoy received $5000 to which she had no right. Mrs. Hoy also received an additional benefit from the arrangement with the Hospital — the full satisfaction of the Hospital’s claim of lien and the write-off of her substantial balance of $24,039.75.

Under these circumstances, Mrs. Hoy failed to prove that she sustained any pecuniary damage or detriment as a result of the alleged misrepresentations. Mrs. Hoy’s position with regard to the UM benefits was no worse than it would have been if there had been no misrepresentation. For this reason, the trial court erred in failing to grant GEICO’s motion for directed verdict.

IY. MRS. HOY’S CROSS-APPEAL

We apply a de novo standard of review to the trial court’s denial of Mrs. Hoy’s motion for leave to amend to add a claim for punitive damages against GEI-CO. Tiger Point Golf & Country Club v. Hippie, 977 So.2d 608, 610 n. 2 (Fla. 1st DCA 2007); Holmes v. Bridgestone/Firestone, Inc., 891 So.2d 1188, 1191 (Fla. 4th DCA 2005). Upon a review of the record, we conclude that Mrs. Hoy failed to make “a reasonable showing by evidence in the record or proffered by [Mrs. Hoy] which would provide a reasonable basis for the recovery of [punitive] damages” as required by section 768.72(1), Florida Statutes (2003). This issue does not warrant additional discussion.

V. CONCLUSION

On GEICO’S direct appeal, we reverse the order granting a new trial on the issue of damages. On remand, the trial court shall enter a final judgment in favor of GEICO on Mrs. Hoy’s claim for fraud in the inducement. On Mrs. Hoy’s cross-appeal, we affirm.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.

      . Ch. 78-552, §§ 1-7, at 185-87, Laws of Fla.

      . At trial, the parties disputed who had negotiated the arrangement for the split of the UM benefits. Mrs. Hoy insisted that the GEICO representatives were responsible. GEICO employees and a representative of the Hospital testified that Mrs. Hoy had negotiated the deal with the Hospital on her own. This factual dispute is not material to our decision in this appeal.

      . Mr. Hoy was not named as a party to the litigation.

      . The parties were previously before this court on GEICO’s petition for review by cer-tiorari of a nonfinal order requiring it to produce its claim file to Mrs. Hoy. GEICO Gen. Ins. Co. v. Hoy, 927 So.2d 122 (Fla. 2d DCA 2006).


text:
    BRIDLEWOOD GROUP HOME, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 2D 13-43.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.

      Daniel Woodring of Woodring Law Firm, Tallahassee, for Appellant.
    Jonathan Grabb, Senior Attorney, Agency for Persons with Disabilities, Tallahassee, for Appellee.
   MORRIS, Judge.

Bridlewood Group Home appeals a final order of the Agency for Persons with Disabilities (APD) revoking Bridlewood’s license to operate. The APD sought revocation after a Bridlewood employee sexually battered a patient. The administrative law judge (ALJ) recommended that no action be taken against Bridlewood because the allegations concerning negligent supervision were not proven. However, the APD filed exceptions to the ALJ’s recommended order (RO) and, thereafter, adopted one of the exceptions, finding that the revocation was warranted. On appeal, Bridlewood argues that the APD improperly rejected the ALJ’s findings and substituted them with its own. We agree and hereby reverse the APD’s decision.

I. Background

Licensed by the APD since at least 2006, Bridlewood was a small group home for adults with developmental disabilities. It was owned and operated by Ms. Novelette Tomlinson, a registered nurse.

In July 2010, Laseelle Saunders, a Bri-dlewood employee, sexually battered L.W., a Bridlewood resident. After the battery, L.W. contacted Tomlinson and told her what had happened. Tomlinson contacted Saunders and asked him to step outside the facility. As soon as Saunders stepped outside of the facility, Tomlinson instructed L.W. to close and lock the door; Tom-linson also instructed Saunders not to reenter the facility. Immediately thereafter, Tomlinson contacted law enforcement, an APD representative, the Department of Children and Families hotline, and L.W.’s waiver support coordinator. Tomlinson arrived at the facility at the same time as law enforcement. It is undisputed that Tomlinson told law enforcement that L.W. would try to make incidents “bigger than they actually were” and would “dress in a provocative manner.” However, Tomlin-son did accompany L.W. to the hospital and to a crisis center thereafter. Although Tomlinson did not let Saunders return to the facility and, in fact, fired him the next day, she discouraged L.W. from pressing criminal charges against Saunders, instead instructing L.W. to tell law enforcement that she wanted to “forget” Saunders and to “forgive” him. As a result, Saunders was not criminally prosecuted despite the fact that he admitted that the incident occurred.

In October 2011, the APD issued an administrative complaint against Bridle-wood, alleging that Bridlewood was responsible for the sexual battery because Saunders was acting in the course and scope of his employment at the time of the sexual battery. Bridlewood responded to the complaint and disputed the material facts. After the administrative hearing, the ALJ issued his RO, finding that the APD failed to present evidence of any failure by Bridlewood to screen, train, or supervise Saunders and that the APD failed to present evidence of any action involving Saunders that Tomlinson and Bridlewood took that should not have been taken.

The APD filed exceptions to the RO, and ultimately, it entered a final order rejecting the ALJ’s findings and revoking Bri-dlewood’s license. In doing so, the APD held that the ALJ lacked the expertise to evaluate the credibility of a witness, like L.W., with a developmental disability whereas the APD had “special expertise and experience in reviewing such situations and determining whether such a situation remains a safe one for someone with a developmental disability.” The APD also held that

the questions regarding the weight to assign to L.W.’s statements in light of her developmental disability and whether [Bridlewood] continued to be a safe environment for its residents, and whether therefore [Bridlewood] should continue to be licensed, is a policy-infused opinion on a matter squarely and exclusively within the authority assigned to APD.

In finding that revocation of Bridlewood’s license was appropriate, the APD held that the facility was no longer safe for its residents based on the sexual battery incident.

II. Analysis

Generally, an appellate court will uphold an agency decision if it is supported by competent, substantial evidence. See Jerry Ulm Dodge, Inc. v. Chrysler Grp. LLC, 78 So.3d 20, 23 (Fla. 1st DCA 2011) (citation omitted). However, no such deference is given to an agency’s erroneous conclusion of law. See id.; M.H. v. Dep’t of Children & Family Servs., 977 So.2d 755, 759 (Fla. 2d DCA 2008).

Because license revocation proceedings are penal in nature, the APD was required to prove its allegations by clear and convincing evidence. See Dep’t of Banking & Fin., Div. of Sec. & Investor Prot. v. Osborne Stem & Co., 670 So.2d 932, 933 (Fla.1996); Pic N’ Save Cent. Fla., Inc. v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 601 So.2d 245, 249 (Fla. 1st DCA 1992); Agency for Pers. with Disabilities v. Help is on the Way, Inc., Case No. 11-1620 (Fla. DOAH Feb. 3, 2012; Fla. APD Apr. 16, 2012); Agency for Pers. with Disabilities v. Amanda & Co., Inc. d/b/a Loving Hearts Grp. Home, Case No. 08-1812 (Fla. DOAH Oct. 29, 2008; Fla. APD Feb. 3, 2009). In such proceedings, “the licensing body cannot rely solely on wrongdoing or negligence committed by an employee of the licensee; instead, the licensing body must prove that the licensee was at fault somehow for the employee’s conduct, due to the licensee’s own negligence, intentional wrongdoing, or lack of due diligence.” Help is on the Way, Inc., Case No. 11-1620, at 28.

The APD’s administrative complaint was predicated upon violations of sections 393.0673(l)(b), 393.13(3)(a) and (3)(g), Florida Statutes (2010), and Florida Administrative Code Rules 65G-2.012(6)(a) and (15)(b). These statutes and rules provide, generally, that (1) persons with developmental disabilities have the right to be free from abuse (including unnecessary restraint, isolation, or excessive medication), neglect, and exploitation; (2) a licensee is subject to disciplinary action if they are responsible for the abuse, neglect, or exploitation of a vulnerable adult; (3) facilities shall take reasonable precautions to protect their clients from injurious behavior; and (4) facilities shall be equipped to assure safe care and supervision for their clients. See §§ 393.0673(l)(b), 393.13(3)(a) & (3)(g); Fla. Admin. Code R. 65G-2.012(6)(a) & (15)(b). The only allegation specifically tying Bridlewood to the sexual battery was that Saunders committed the sexual battery while “acting in the course of his employment.” There was no specific allegation that Tomlinson was negligent, lacked due diligence, or engaged in intentional misconduct in handling the incident.

In the RO, the ALJ found that the APD presented no evidence that Bridlewood failed to screen, train, or supervise Saunders. The APD also failed to present evidence of any action that Bridlewood took that should not have been taken or evidence of any action involving Saunders’ hiring, training, or supervision that Bridle-wood failed to take that should have been taken. In other words, the ALJ determined that there was no evidence that Bridlewood, the licensee, was somehow responsible for the sexual battery committed by one of its employees nor was there evidence presented that Bridlewood was not equipped to assure the safe care of its clients.

But in the final order, the APD did not even address these findings as they related to Bridlewood’s conduct leading up to the incident. Instead, the APD relied on its exceptions to the RO, wherein it alleged that the ALJ “improperly rejected uncontroverted material facts” relating to Tomlinson’s post-incident attempt to influence L.W. in the presentation of her testimony and Tomlinson’s attempt to discredit L.W. when speaking about her to law enforcement. It was on that basis that the APD determined that the “ALJ simply lacks the expertise to determine the credibility of a witness with a developmental disability when such witness’s credibility is called into question by another person with a close personal relationship with the witness” and that it was the APD which had “special expertise and experience” to review such situations.

These findings by the APD indicate that it failed to abide by the standard of review required when an agency reviews an ALJ’s RO. “Factual issues susceptible of ordinary methods of proof that are not infused with policy considerations are the prerogative of the hearing officer as the finder of fact.” Heifetz v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985) (citing McDonald v. Dep’t of Banking & Fin., 346 So.2d 569 (Fla. 1st DCA 1977)). This includes consideration of the evidence presented, resolution of conflicts in the evidence, judging credibility of the witnesses, drawing permissible inferences from the evidence, and reaching “ultimate flnding[s] of fact based on competent, substantial evidence.” Id. (citing State Beverage Dep’t v. Ernal, Inc., 115 So.2d 566 (Fla. Bd DCA 1959)). An “agency may not reject the [ALJ’s] findings unless there is no competent, substantial evidence from- which the finding could reasonably be inferred. The agency is not authorized to weigh the evidence presented, judge credibility of witnesses, or otherwise interpret the evidence to fit its desired ultimate conclusion.” Id (emphasis added). “If there is competent,] substantial evidence in the record to support the ALJ’s findings of fact, the agency may not reject them, modify them, substitute its findings, or make new findings.” Rogers v. Dep’t of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005) (citations omitted).

Here, the APD determined that “the type of evidence rejected by the ALJ is not susceptible to ordinary methods of proof’ because “the questions regarding the weight to assign to L.W.’s statements in light of her developmental disability[,]” and thus the issue of whether Bridlewood “continued to be a safe environment for its residents,” were “policy-infused opiriion[s] on a matter squarely and exclusively within” the APD’s authority. We are not persuaded by the APD’s argument that because the APD is exclusively charged with preventing exploitation of the developmentally disabled and because undue influence is a form of exploitation, the APD has a superior capacity to make a credibility determination of a developmentally disabled individual when undue influence has been suggested. The APD simply provided no support for the broad assertion that it was more qualified to determine the credibility of a developmentally disabled individual, and we have found no authority holding that an agency can make a credibility determination based on the characteristics of the witness. If there were such an exception, the permutations of human characteristics would no doubt be endless and the case law addressing them would be voluminous. We conclude that the APD’s findings merely reflect a disagreement with the ALJ’s assessment of the evidence, not a finding on a factual matter infused with policy considerations. Such a disagreement cannot form the basis to reverse an ALJ’s factual determinations. See Heifetz, 475 So.2d at 1281.

Furthermore, the APD’s order did not focus on anything that Bridlewood (through Tomlinson) did leading up to the sexual battery. Rather, the APD focused on Tomlinson’s post-incident conduct. But that conduct was not the basis for the administrative complaint, and the APD cannot impose discipline for violations not charged. See Cottrill v. Dep’t of Ins., 685 So.2d 1371, 1372 (Fla. 1st DCA 1996) (holding that where administrative complaint contained references to statutory provisions but failed to allege any act or omission in violation of those provisions, the complaint did not afford proper notice to the licensee and that therefore, disciplinary action could not be predicated on those statutes).

The APD’s final order was predicated on its own credibility determination and resulted in new factual findings relating to Bridlewood’s post-incident conduct. This constitutes reversible error, see Heifetz, 475 So.2d at 1282; Rogers, 920 So.2d at 31, and we reject any argument that the APD was justified in its action because it was merely rejecting or modifying a conclusion of law, see Pillsbury v. State, Dep’t of Health & Rehabilitative Servs., 744 So.2d 1040, 1041 (Fla. 2d DCA 1999) (holding that the mere fact that a factual determination is labeled a conclusion of law does not make it so and that an agency cannot avoid its obligation to honor an ALJ’s findings of fact by attempting to categorize them as such). We therefore reverse the final order revoking Bridlewood’s license and remand with instructions for the APD to dismiss the complaint against Bridle-wood.

Reversed and remanded with instructions.

VILLANTI and BLACK, JJ., Concur.

      . Section 120.57(l)(k), Florida Statutes (2010), provides that parties can file exceptions to a RO. While an agency can accept the findings set forth in exceptions, it must state with particularity that the ALJ's findings, relevant to the exceptions in question, are not supported by competent, substantial evidence. See Verleni v. Dep’t of Health, Bel. of Podiatric Med., 853 So.2d 481, 483 (Fla. 1st DCA 2003).

      . Tomlinson was out of town at the time of the incident, and it is unclear from the record whether Tomlinson asked Saunders to wait for her to arrive or to wait until another employee arrived.

      . We note that the issues of "negligent supervision and lack of diligence are essentially ultimate findings of fact clearly within the realm of [an ALJ’s] fact-finding discretion" and which are "determinable by ordinary methods of proof, weighing the evidenced] and judging the credibility of witnesses.” See Heifetz v. Dep't of Bus. Regulation, Div. of

        Alcoholic Beverages & Tobacco, 475, So.2d 1277, 1282 (Fla. 1st DCA 1985); see also Dunham v. Highlands Cnty. Sch. Bd., 652 So.2d 894, 896 (Fla. 2d DCA 1995) (holding that the issue of whether a party willfully neglected a duty was a simple question of fact determinable by ordinary methods of proof and it was not a question infused with policy considerations).

      . See also § 120.57(1)(Z), Fla. Stat. (2012); Rogers v. Dep’t of Health, 920 So.2d 27, 30 (Fla. 1st DCA 2005); Gross v. Dep't of Health, 819 So.2d 997, 1000-01 (Fla. 5th DCA 2002).

      . See § 120.57(1)(Z) (providing that agencies may reject or modify conclusions of law over which they have substantive jurisdiction).

      . Although the APD did not, in its final order, explicitly state that it was rejecting a conclusion of law rather than a finding of fact, the APD’s second exception to the RO, on which the license revocation was based, provided that the ‘‘[AU]’s failure to recognize these material and uncontroverted facts is an error of law.” The final order summarily provides that "[t]he findings of [fjact and [conclusions of [l]aw in the [RO] are adopted as modified herein.”


text:
    David Dean CROFT, a/k/a David Dark Horse, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-1715.
    District Court of Appeal of Florida, Second District.
    Dec. 20, 2013.

      David Dean Croft, pro se.
   PER CURIAM.

David Dean Croft, a/k/a David Dark Horse, appeals the postconviction court order dismissing in part and summarily denying in part his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm. However, as to Mr. Croft’s claim challenging his presumptive parole release date, our affirmance is without prejudice to pursue his administrative remedies with the Florida Parole Commission. If he is unsuccessful, he may seek mandamus relief in the appropriate circuit court. See Werts v. State, 113 So.3d 859 (Fla. 2d DCA 2012); Sullivan v. Fla. Parole Comm’n, 920 So.2d 106 (Fla. 2d DCA 2006).

Affirmed.

CASANUEVA, VILLANTI, and SLEET, JJ., Concur.