author: PLEUS, JR., R., Senior Judge.

text:
    Jeffrey Jay McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1906.
    District Court of Appeal of Florida, Fifth District.
    June 26, 2009.
    Rehearing Denied Aug. 24, 2009.
    James S. Purdy, Public Defender, and Rebecca M. Becker and Michael S. Becker, Assistant Public Defenders, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PLEUS, JR., R., Senior Judge.

Jeffrey McDonald entered an open plea of no contest to lewd or lascivious molestation, a first-degree felony under section 800.04(5)(a)-(b), Florida Statutes (1999). In this direct appeal he challenges the trial court’s ruling on his motion to correct a sentencing error, arguing the offense should have been classified as a second-degree felony instead of a first-degree felony. We agree with the trial court’s determination that the offense to which he pled was a first-degree felony but remand for a minor correction.

McDonald contends that since the information alleged he molested his daughter “on or between 1998 through 2007,” he must be sentenced under the most lenient version of section 800.04 in effect during that period. The most lenient version defined the crime of “lewd, lascivious, or indecent assault” as a second-degree felony. § 800.04(1), Fla. Stat. (1997). Substantial revisions that became effective October 1, 1999, redefined the crime and reclassified “lewd or lascivious molestation” as a first-degree felony. § 800.04(5)(a)-(b), Fla. Stat. (1999). The statute was again amended effective September 1, 2005, to reclassify the offense as a first-degree felony punishable by life imprisonment. § 800.04(5)(a)-(b), Fla. Stat. (2005).

We reject McDonald’s argument because there was ample evidence that he molested the child several times between October 1, 1999, and August 31, 2005, when the version of section 800.04 classifying the offense as a first-degree felony was in effect. This evidence was embodied in the charging affidavit and expressly accepted by McDonald in entering his plea. Because the parties stipulated below that no offense occurred on or after September 1, 2005, the effective date of the amendment reclassifying the offense as a first-degree felony punishable by life, it is clear where McDonald falls in the statutory revisions. The fact that he may have also molested the child on earlier dates when the offense was classified as a second-degree felony does not entitle him to be sentenced under that version of the statute. Indeed, McDonald is fortunate that he was charged with only one count of molestation. Cf. Whittingham v. State, 974 So.2d 616, 618-19 (Fla. 4th DCA 2008).

The evidence establishing when the molestations were perpetrated distinguishes the present case from the Cairl case relied upon by McDonald. The court in Cairl found that neither the evidence nor the verdict pinpointed the date of the crime and, therefore, held that the defendant was entitled to be sentenced under the most lenient version of the guidelines in effect during the time-frame alleged in the information. Cairl v. State, 833 So.2d 312, 313-14 (Fla. 2d DCA 2003).

Our decision in Bradley v. State, 971 So.2d 957 (Fla. 5th DCA 2007), approved by, 3 So.3d 1168 (Fla.2009), is more analogous to the present case than Cairl.

Bradley pleaded no contest to robbery and was sentenced to a mandatory minimum term for discharging a firearm during the crime. Bradley filed a postcon-viction motion arguing the mandatory minimum sentence was illegal because the information did not allege discharge of the firearm. The trial court denied relief, and we affirmed. In doing so, we recognized that while discharge of a firearm was an essential element that should have been alleged in the information, decisional law in Florida has allowed a plea to supply elements missing from a charging document. We emphasized that in entering his plea, Bradley expressly agreed to the mandatory minimum term and stipulated to the facts alleged in the complaint affidavit, which stated he had discharged a firearm during the robbery. We therefore concluded Bradley’s explicit plea to discharge of a firearm “constituted his consent to the implicit amendment of the information to include this element, particularly since it is clear from the record that Mr. Bradley was not misled or prejudiced by the unwritten amendment to the information.” Id. at 960.

The principles enunciated in Bradley are persuasive in the present case, even though McDonald entered an open plea rather than a negotiated plea. Like the defendant in Bradley, McDonald stipulated to the facts in the charging affidavit and was fully aware of the nature and consequences of his plea. In fact, McDonald believed he was pleading to a first-degree felony punishable by life. Thus, he was not prejudiced or misled in any way that would entitle him to be resentenced to a second-degree felony. If, as the court held in Bradley, a plea can supply an essential element missing from the charging document, it follows that McDonald’s plea can supply the date of the offense with greater particularity, since time is not ordinarily an essential element of the crime. See, e.g., Tingley v. State, 549 So.2d 649, 651 (Fla.1989).

In sum, the trial court correctly determined the offense should be classified as a first-degree felony. In its oral ruling on McDonald’s postconviction motion, the trial court imposed the same fifteen-year prison term originally decreed but reduced probation from life to fifteen years and the degree of the offense from a first-degree felony “punishable by life” to a first-degree felony. We approve this ruling.

Because the corrected judgment and sentence did not reflect the change in the degree of the offense, we remand with directions to delete the “punishable by life” designation, which is apparently a mere scrivener’s error. We affirm in all other respects.

AFFIRMED in Part and REMANDED for sentence correction.

LAWSON, J., and WOHN, R, Associate Judge, concur.


source: Caselaw Access Project

author: BENTON, J.

license: Public Domain

text:
    Michael Timothy SHORES, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-0557.
    District Court of Appeal of Florida, First District.
    June 30, 2009.

      Nancy A. Daniels, Public Defender, David P. Gauldin, Assistant Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Michael Timothy Shores appeals the upward departure sentence imposed upon re-sentencing below. Because the trial court identified no valid basis for departure, we reverse and remand for resentencing within the guidelines range. Contending the written reasons for departure — that he violated his probation by engaging in conduct similar to the original offense and had been designated as a sexual predator as a result of the original offense — were invalid grounds for departure, Mr. Shores also appeals the summary denial of his postcon-viction claim that counsel was ineffective for failing to present mitigation evidence at sentencing. Our reversal for resentenc-ing renders the ineffective assistance of counsel claim moot.

Background

Mr. Shores pleaded guilty to sexual activity on December 1, 1997, as a person 24 years of age or older, with a 17-year-old. He was sentenced to four years in prison followed by five years on probation. As a condition of probation, he was “prohibited from any unsupervised contact with a child under the age of 18, unless authorized by the sentencing court, without another adult present who is responsible for the child[’]s welfare and who has been advised of the crime.” At his probation revocation hearing, he admitted he contacted a 15-year-old, indirectly through a third-party (via mail) and directly with e-mails, telephone calls and letters. After his probation was revoked for having had unsupervised contact with a child under the age of 18, he was resentenced to 15 years in prison.

Alleging this resentencing was predicated upon an improperly-calculated score-sheet, he filed a motion for postconviction relief. In response to the motion, the trial court granted an evidentiary hearing (without objection) to determine whether the original scoresheet correctly identified a sentencing guidelines range of 128.9 months (10.74 years) to 214.8 months (17.9 years). At the hearing, the parties agreed the proper sentencing guidelines range was 84.6 months (7.05 years) to 141.1 months (11.76 years). A corrected score-sheet notwithstanding, the trial court again resentenced him to 15 years’ imprisonment, departing upward from the guidelines, giving two reasons: (1) he violated his probation by engaging in conduct similar to the original offense, and (2) he had been designated a sexual predator on account of the original offense.

Upward Departures Under Section 921.001(6)

On direct appeal, we review the imposition of an upward departure sentence for an abuse of discretion. See Lawson v. State, 812 So.2d 518, 518 (Fla. 1st DCA 2002). When applicable, section 921.001(6), Florida Statutes (2007), affords discretion to trial courts to impose a departure sentence if at least one reason justifying departure is set forth in writing at the time of sentencing:

A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence in accordance with s. 921.0016. The level of proof necessary to establish facts supporting a departure from a sentence under the guidelines is a preponderance of the evidence. When multiple reasons exist to support a departure from a guidelines sentence, the departure shall be upheld when at least one circumstance or factor justifies the departure regardless of the presence of other circumstances or factors found not to justify departure. Any sentence imposed outside the range recommended by the guidelines must be explained in writing by the trial court judge.

The State and Mr. Shores agree that none of the factors specified in section 921.0016 apply to the case at bar. But, as they also agree, section 921.0016’s list of factors is not exhaustive. § 921.0016(2), Fla. Stat. (2007) (“Aggravating and mitigating factors to be considered include, but are not limited to, those listed in subsections (3) and (4).”).

The trial court’s first stated reason for departure was that the conduct that led to revocation of Mr. Shores’ probation closely resembled the offense of which he had originally been convicted. The supreme court has, indeed, held that sentencing for a criminal offense that is part of a pattern of criminal behavior may warrant an upward departure:

In Keys v. State, 500 So.2d 134 (Fla.1986), we recently rejected the argument that a trial judge’s consideration of a defendant’s “escalating course of criminal conduct” was nothing more than consideration of a defendant’s prior criminal history contrary to Hendrix. Hendrix precludes reliance upon only those aspects of a defendant’s prior criminal record which have been factored in for scoring purposes. See Hendrix, 475 So.2d at 1220. Neither the continuing and persistent pattern of criminal activity nor the timing of each offense in relation to prior offenses and release from incarceration or supervision are aspects of a defendant’s prior criminal history which are factored in to arrive at a presumptive guidelines sentence. Therefore, there is no prohibition against basing a departure sentence on such factors.

Williams v. State, 504 So.2d 392, 393 (Fla.1987). There, is, however, a prohibition against basing a departure sentence on conduct occurring after a criminal offense, when resentencing for the offense after a probation violation. See Lambert v. State, 545 So.2d 838, 842 (Fla.1989) (“[W]e hold that factors related to violation of probation or community control cannot be used as grounds for departure.”).

Our supreme court has held that even recurrent criminal conduct — absent temporal proximity or escalation — does not justify upward departure. See Barfield v. State, 594 So.2d 259, 261 (Fla.1992). In the present case, the trial judge found neither temporal proximity nor any pattern of criminal activity: The conduct to which Mr. Shores admitted at the revocation hearing cannot be deemed a crime. Sexual activity with a 17-year-old, by a person 24 years of age or older, was a second-degree felony. See § 794.05(1), Fla. Stat. (1997). But his subsequent, unsupervised contact with a 15-year-old, while grounds for revocation of Mr. Shores’ probation — he does not argue otherwise — did not provide a basis for upward departure.

The trial court also justified upward departure by reference to Mr. Shores’ sexual predator designation. This, too, was improper. The Florida Sexual Predators Act denominates sexual predator designation as merely the recognition of a “status” flowing from, in this case, the original conviction:

It is the purpose of the Legislature that, upon the court’s written finding that an offender is a sexual predator, in order to protect the public, it is necessary that the sexual predator be registered with the department and that members of the community and the public be notified of the sexual predator’s presence. The designation of a person as a sexual predator is neither a sentence nor a punishment but simply a status resulting from the conviction of certain crimes.

§ 775.21(3)(d), Fla. Stat. (2007). The state’s brief seems to concede, by implication, the inadequacy of this ground in arguing that “at least one of the reasons relied upon by the trial court in imposing an upward departure sentence is supported by the record” (emphasis added) and focusing exclusively on the first ground for departure, discussed above. Sexual predator designation is an invalid ground for upward departure.

Because the trial court failed to articulate a valid reason for upward departure, we reverse and remand for resentencing, after a new sentencing hearing, within the guidelines range.

Reversed and remanded.

KAHN and VAN NORTWICK, JJ., concur.

      . This provision does not apply to offenses that were committed after October 1, 1998, the effective date of the Criminal Punishment Code. See § 921.002(l)(g), Fla. Stat. (effective Oct. 1, 1998); Ch. 98-204, § 2, at 1935, Laws of Fla. But because Mr. Shores’ offense was committed on December 1, 1997, section 921.001(6) does apply to the present case.

      . Our supreme court said in Gibson v. State, 553 So.2d 701, 701 (Fla.1989), that repetitive criminal conduct "may, under appropriate circumstances, be an appropriate reason to depart,” but that a hiatus between repeat offenses of “fourteen months is too long a period to permit departure on this basis.” We have ourselves said that an escalating pattern of criminal activity and a continuing, persistent pattern of criminal behavior are valid grounds for departure in imposing the original sentence. See Silveira v. State, 525 So.2d 429, 431 (Fla. 1st DCA 1988).
      But the supreme court has since held that "[wjhile an offense committed soon after release from incarceration or supervision may show a disregard for the law and justify a judge’s displeasure and desire for a departure sentence, such a persistent but nonescalating pattern of criminal activity is not a sufficient reason to depart from the guidelines.” Barfield v. State, 594 So.2d 259, 261 (Fla.1992) (citing Smith v. State, 579 So.2d 75 (Fla.1991)). Moreover, "temporal proximity alone does not constitute a clear and convincing reason to depart from the guidelines.” Id.

      . In Barfield v. State, the supreme court limited the ways in which the state could show an "escalating pattern” of criminal behavior:
      [TJhe "escalating pattern” recognized by section 921.001(8) as a valid basis for departure can be demonstra!ed in three ways: 1) a progression from nonviolent to violent crimes; 2) a progression of increasingly violent crimes; or 3) a pattern of increasingly serious criminal activity. Under this third category, "increasingly serious criminal activity” is indicated when the current charge involves an increase in either the degree of crime or the sentence which may be imposed, when compared with the defendant’s previous offenses.
      594 So.2d 259, 261 (Fla.1992). Mere contact with a 15-year-old is neither a "violent crime[l” id., nor "serious criminal activity,” id., and indeed no crime at all.


author: BROWNING, J.

text:
    STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellant, v. Joyce MASHBURN, Appellee.
    No. 1D08-0190.
    District Court of Appeal of Florida, First District.
    June 30, 2009.

      Charles F. Beall, Jr., of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellant.
    Woodburn S. Wesley, Jr., of Wesley, McGrail & Wesley, Ft. Walton Beach, for Appellee.
   BROWNING, J.

The trial court erred in entering summary judgment and we accordingly reverse. We remand for further proceedings for the reasons in this opinion.

In this insurance coverage case, Appel-lee Joyce Mashburn sought, and received, summary judgment by arguing she “is” eligible for medical expenses coverage under the terms of the policy issued by Appellant State Farm Mutual Automobile Insurance. Here on appeal, State Farm vigorously disputed that she is so eligible, and while Mashburn gamely defended the trial court’s decision, she basically argued to this court that she “should” have been covered because of alleged conversations with Appellant’s agent. We hold on this record that Mashburn is not entitled to a summary judgment for medical expenses under the policy, but express no judgment on whether she might be entitled to coverage under other theories of liability alleged in her complaint, or that might be alleged by an amended complaint, and remand to the trial court for further consistent proceedings.

Mashburn has lived with Luis Palacios since 1997, but they never married. Palac-ios bought Mashburn a car in 1997. Palac-ios insured the car with State Farm through its agent. Palacios was the only person listed on the policy’s declarations page as a named insured. Mashburn was never listed as a named insured. Mash-burn was not a named insured because the title to the car was in Palacios’ name, so Mashburn did not have an insurable interest in the car.

Originally, the policy extended coverage for medical expenses to “the first person named in the declarations,” “his or her spouse,” “their relatives,” and “any other person while occupying a vehicle covered under the liability coverage....” Thus Mashburn, who was not a named insured, a spouse, or a relative, was nevertheless eligible for such coverage so long as she occupied a covered vehicle.

In 2002, Palacios bought another car to replace the one he had given to Mashburn in 1997. State Farm issued a new policy effective May 14, 2002, to cover the new car. On this new policy’s declarations page is a notice of “Exceptions and Endorsements.” Among the endorsements listed is Endorsement 6910. This endorsement changed eligibility for medical expense coverage to “you” or “any relative” alone, removing “any other person” from eligibility. The policy defines “you” as the “named insured or named insureds shown on the declarations page.”

The new policy, effective on May 14, 2002, included a copy of Endorsement 6910. Palacios acknowledged receiving a premium notice prepared on July 30, 2002, which states “Endorsement 6910 effective SEP 19, 2002.” This premium notice, like others, identified Palacios and Mashburn as licensed drivers.

On May 18, 2003, Mashburn was injured in an accident while driving the 2002 car. There is no dispute that she incurred medical expenses as a result of her injuries.

“We review de novo the trial court’s interpretation of the insurance policy contract, the determination of whether the law requires the insurer to provide coverage, and the ruling on the motion for partial summary judgment.” First Professionals his. Co., Inc. v. McKinney, 973 So.2d 510, 513-14 (Fla. 1st DCA 2007). “Like other contracts, contracts of insurance should receive a construction that is reasonable, practical, sensible, and just.” Gen. Star Indem. Co. v. W. Fla. Village Inn, Inc., 874 So.2d 26, 29 (Fla. 2d DCA 2004). “[I]n construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000); see Riveroll v. Winterthur Int’l Ltd., 787 So.2d 891, 892 (Fla. 3d DCA 2001). In other words, a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, or riders. See Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 166 (Fla.2003); St. Paul Guardian Ins. Co. v. Canterbury Sch. of Fla., 548 So.2d 1159, 1160 (Fla. 2d DCA 1989) (finding no ambiguity in insurance contract titled “Trustee and Personnel Liability Policy,” where declaration page of policy listed “insured’s name and address” as the school’s name and address, whereas definitional portion of policy clarified that “insured” meant elected or appointed trustees or school directors and employees, and school paid premiums for a trustee and personnel liability policy). The mere fact that an insurance contract is complex and requires some analysis to interpret it does not, by itself, render the agreement ambiguous. See Swire Pac. Holdings, 845 So.2d at 165. Absent ambiguity or inconsistency, “insurance contracts are construed in accordance with the plain language of the policies as bargained for by the parties.” Anderson, 756 So.2d at 34.

Mashburn is not eligible for medical expenses coverage under the policy terms as modified by Endorsement 6910. The policy provides “We will pay medical expenses for bodily injury sustained by you or any relative [.]” (emphasis in original). In its “Defined Words” section, the policy provides that “You or Your — means the named insured or named insureds shown on the declarations page.” (emphasis in original). Thus, to claim coverage for medical expenses, Mashburn must be either a “named insured” (that is, “you”) or any relative.

The policy document entitled “Declarations Page” shows the term “NAMED INSURED” (emphasis in original). Only one name is under this heading — Luis Palacios. Because Mashburn is neither a named insured nor a relative of a named insured, she is not entitled to payment of medical expenses under the policy.

Mashburn argues alternatively that the policy is ambiguous as to whether she is entitled to medical payment coverage, and that therefore the policy should be read in favor of coverage. There is no doubt that, in the case of a legitimate ambiguity, the policy is read in the insured’s favor. “However, the rule of liberal construction in favor of the insured applies only when a genuine inconsistency, uncertainty, or ambiguity in meaning remains after resort to the ordinary rules of construction.” Gen. Star Indem., 874 So.2d at 30. Mashburn does not make a cogent case for ambiguity here.

She argues first that the standard policy form states that it will pay medical expenses for injuries sustained by the “first person named in the declarations,” and that the standard policy form defines “person” as “a human being.” This is true but does not create ambiguity. First, the only person named in the declarations is Palacios. Second, to the extent Mashburn argues there is conflict between the standard form and the endorsement, “[e]very insurance contract shall be construed according to the entirety of its terms and conditions as set forth in the policy and as amplified, extended, or modified by any application therefor or any rider or endorsement thereto.” McKinney, 973 So.2d at 514 (quoting § 627.419(1), Fla. Stat.). Endorsement 6910 expressly changes the standard policy provision on eligibility for medical expenses coverage. Mashburn does not argue otherwise.

Next, Mashburn argues that neither “declarations page” nor “named insured” is defined in the policy. This is true, but “[t]he lack of a definition of an operative term does not, by itself, create ambiguity.” Gen. Star Indem., 874 So.2d at 30 (citing State Farm Fire & Can. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998)). Mashburn does not explain what is ambiguous about the term “declarations page” when there is a specific page in the policy with the words “DECLARATIONS PAGE” at the top. Mashburn does not explain what is ambiguous about the term “named insured” when, on that same DECLARATIONS PAGE, there are the words “NAMED INSURED” near the top with the name “Palacios, Luis” immediately below. Mashburn argues that while the term “you” is defined in the policy, it is ambiguous because it is not also defined in the endorsement. This ignores that,

in construing insurance policies, courts should read each policy as a whole, endeavoring to give every provision its full meaning and operative effect.... In other words, a single policy provision should not be read in isolation and out of context, for the contract is to be construed according to its entire terms, as set forth in the policy and amplified by the policy application, endorsements, or riders.

McKinney, 973 So.2d at 514 (citations omitted).

Mashburn also argues that the endorsement is ineffective because State Farm did not furnish proper notice. By law,

No insurer shall fail to renew a policy unless it mails or delivers to the named insured, at the address shown in the policy, and to the named insured’s insurance agent at her or his business address, at least 45 days’ advance notice of its intention not to renew; and the reasons for refusal to renew must accompany such notice.

§ 627.728(4)(a), Fla. Stat. (emphasis added). This statute applies to motor vehicle insurance, including medical expenses coverage. § 627.728(l)(a), Fla. Stat.

The basic argument is that the changes in coverage precipitated by Endorsement 6910 are tantamount to a failure or refusal to renew, that Palacios and Mashburn did not receive the required 45-day notice of the changes, and that therefore the changes are ineffective.

We express no opinion on whether Endorsement 6910 is a failure or refusal to renew under the statute. Rather, we hold that the notice argument is unavailing because (1) Palacios acknowledged receiving notice that Endorsement 6910 was effective, rendering moot any discussion of whether such notice was required; and (2) Mashburn did not raise State Farm’s purported failure to deliver advance notice of the endorsement in her summary judgment motion.

A motion for summary judgment must “state with particularity the grounds upon which it is based and the substantial matters of law to be argued.” Fla. R. Civ. P. 1.510(c). “The purpose of this rule is to eliminate surprise and to provide the parties “a full and fair opportunity to argue the issues.... It is reversible error to enter summary judgment on a ground not raised with particularity in the motion.” Williams v. Bank of Am. Corp., 927 So.2d 1091, 1093 (Fla. 4th DCA 2006) (citations omitted). Mashburn’s summary judgment motion does not raise the notice issue and does not cite section 627.728. In fact, the motion does not cite any case or make any specific argument at all.

Mashburn argues that, while the motion itself does not raise the argument, the attached affidavits indicated that notice was at issue. This is insufficient. Fla. R. Civ. P. 1.510(c); Williams, 927 So.2d at 1093.

We dismiss without comment the other proffered justifications for finding Mash-burn eligible for medical expenses coverage. Mashburn simply “is” not covered under the policy. Whether she “should” have been covered because of Appellant’s agent’s action is a different question.

At oral argument, counsel for State Farm characterized this case as a simple matter of contract interpretation; that is, the case is about whether Mashburn is covered. Counsel for Mashburn adamantly disagreed, arguing that the case is about whether State Farm delivered on its promise. Counsel argued that, in 1997, Palacios instructed State Farm’s agent to insure the car he bought for Mashburn in the same manner as the car he drove himself. Counsel argued that State Farm, through its agent, promised to do so, and that State Farm failed to deliver on this promise by altering the eligibility requirements for medical expenses coverage so as effectively to drop Mashburn from coverage that she had originally. Counsel argued that the fact that Mashburn was never a “named insured” was State Farm’s “sin” that “should” result in a finding of coverage. Later, he expressly argued Mash-burn “should have been” covered: in other words, not that Mashburn is covered, but rather that she “should” have been covered.

State Farm’s counsel correctly noted that the lawsuit, as framed, could not support that argument. But we see no reason, and State Farm does not argue otherwise, why the lawsuit could not be framed differently.

We REVERSE the trial court’s summary judgment finding Mashburn is eligible for and entitled to medical expenses coverage. Without expressing any opinion on the merits of such a claim, we REMAND to afford Mashburn the opportunity to establish other theories supporting her claim for medical expenses. Nothing in this opinion shall be construed to abrogate any defenses, including a limitations defense, if applicable.

HAWKES, C.J., and VAN NORTWICK, J., concur.


author: PER CURIAM.

text:
    Jose A. PACHECO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-961.
    District Court of Appeal of Florida, Third District.
    July 1, 2009.
    Rehearing and Rehearing En Banc Denied Sept. 3, 2009.

      Jose Pacheco, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Mills v. State, 822 So.2d 1284 (Fla.2002).


author: ROTHENBERG, J.

text:
    A.J.M., Appellant, v. FLORIDA DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 3D08-1349.
    District Court of Appeal of Florida, Third District.
    July 1, 2009.
    Rehearing and Rehearing En Banc Denied Sept. 4, 2009.
    Bruce A. Rosenthal, Miami, for appellant.
    John P. Booth, Assistant General Counsel for the Florida Department of Law Enforcement, Tallahassee, for appellee.
    Before COPE, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

A.J.M. appeals from a final order denying his petition to compel the Florida Department of Law Enforcement (“Department”) to issue a certificate of eligibility for the sealing of a criminal history record. We affirm.

J. Facts and Procedural History

In August 2006, A.J.M. was pulled over for speeding. After conducting the stop, a police officer arrested A.J.M. for driving under the influence of alcohol (“DUI”), and during a search incident to arrest, the police officer discovered cocaine in A. J.M.’s pocket. A.J.M. was later charged in circuit court with possession of cocaine, and in county court with DUI and driving while license suspended (“DWLS”).

A.J.M. pled guilty to possession of cocaine, and the circuit court withheld adjudication. The DUI and DWLS charges are currently pending before the county court, and the county court stayed the proceedings pending the resolution of this appeal.

On October 19, 2006, pursuant to section 943.059, Florida Statutes (2006), A.J.M. applied to the Department for a certificate of eligibility to seal the possession charge. The application, however, did not seek a certificate of eligibility as to the other two offenses stemming from AJ.M.’s August 2006 arrest — DUI and DWLS. The Department declined to issue the certificate of eligibility based on its determination that A.J.M. failed to meet the statutory criteria. Specifically, the Department determined that because the county court charges were pending, A.J.M. could not attest that he “[h]a[d] not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains,” as required by section 943.059(2)(d).

After the Department declined to issue the certificate of eligibility, A.J.M. petitioned the circuit court to compel the Department to issue the certificate. When the trial court denied the petition, A.J.M. filed the instant appeal.

II. Issue

This appeal raises the following question: Pursuant to section 94S.059(2)(d), can the Department issue a certificate of eligibility to seal a criminal history record where the charge the applicant seeks to seal has been disposed of without an adjudication of guilt, but where the remaining charges stemming from his arrest are still pending? We conclude that based on the clear and unambiguous language of section 943.059(2)(d), the Department cannot issue a certificate of eligibility under these circumstances, and therefore, we affirm the trial court’s denial of AJ.M.’s petition to compel the Department to issue the certificate.

III. Standard of Review

The issue presented is a question of law, and therefore, this Court’s standard of review is de novo. See Koile v. State, 934 So.2d 1226, 1229 (Fla.2006).

IV. Analysis

The language at issue is set forth in subsection (2)(d), which provides in part as follows:

(2) CERTIFICATE OF ELIGIBILITY FOR SEALING. — Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the [Department [of Law Enforcement] for a certificate of eligibility for sealing.... The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
(d) Has not been adjudicated guilty of or adjudicated delinquent for■ committing any of the acts stemming from the arrest or alleged criminal activity to •which the 'petition to seal pertains.

(Emphasis added).

The parties disagree as to the meaning of the provision and whether the provision is clear and unambiguous. Contrary to AJ.M.’s assertion, subsection (2)(cl) is clear and unambiguous, and therefore, this Court “will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005); see also Knox v. Adventist Health Sys./Sun belt, Inc., 817 So.2d 961, 962 (Fla. 5th DCA 2002) (recognizing that when a statute is clear and unambiguous, a court may not resort to rules of statutory construction, and the “statute must be given its plain and obvious meaning”).

A plain reading of section 943.059(2) reflects that it provides that the Department may only issue a certificate of eligibility to seal a criminal history record if certain criteria are met. The criterion set forth in subsection (2)(d) specifically provides that the applicant is not eligible to seal his criminal history record unless he has not been adjudicated guilty of committing any of the acts stemming from the arrest or any of the alleged criminal activity to which the petition to seal pertains. Although A.J.M. received a withhold of adjudication on the possession charge, the DUI and DWLS charges he was also arrested for and charged with still remain pending. A.J.M. therefore may be ultimately adjudicated guilty of one or moi'e of the acts stemming from the arrest. The Department, therefore, correctly declined to issue A.J.M. a certificate of eligibility and the trial court properly denied A.J.M.’s petition to compel the Department to do so.

Our reading of the following language in the introductory paragraph to section 943.059 does not alter our interpretation of the statute: “This section does not prevent the court from ordering the sealing of only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.” This provision does not relate to the Department’s authority to issue a certificate of eligibility. The applicant is either eligible or he is not. What this provision does is it provides the trial court with discretion, even after a certificate of eligibility is issued by the Department, to seal “only a portion of a criminal history record pertaining to one arrest or one incident of alleged criminal activity.”

Our current interpretation of the statute is consistent with this Court’s prior interpretation in Poleski v. State, 371 So.2d 548 (Fla. 3d DCA 1979). In Poleski, the trial court ordered the unsealing of Poleski’s arrest record and court file, which had previously been sealed, because Poleski had been adjudicated guilty of one of the “acts” involved in his August 14, 1977 arrest. Poleski was arrested for DUI, as was A.J.M. A search conducted incident to the DUI arrest revealed that Poleski was in possession of a controlled substance, as was A.J.M. After completing a pre-trial intervention program, the possession charge was nolle prossed and Poleski obtained a court order sealing his arrest record and court file. The trial court, however, ordered that his record and file be unsealed upon learning that Poleski had been adjudicated guilty for the DUI. This Court affirmed, finding:

Plainly, there were “several acts” involved in the defendant’s August 14, 1977 arrest. It is also clear that the d.u.i. charge was directly “related to” the possession offense which was nolle prossed. Since the nolle prosse did not include the d.u.i. offense, of which, to the contrary, the defendant was found guilty, the very terms of the statute demonstrate that he was not entitled to the relief sought.

Id. at 550 (citation omitted).

The Poleski court noted in a footnote the wisdom of this provision — that because both charges were incorporated in the same arrest affidavit, even the sealing of the felony charge would not eliminate the reference to the same charges in the unsealed county court file. We agree, and we take this observation one step further. The sealing of the circuit court file would not eliminate the reference to the felony charge in the misdemeanor/traffic county court file(s), thus defeating this purpose— to eliminate all record and references to the sealed arrest. The sealing of the resolved offenses prior to resolution of the related offenses could also have a direct and negative impact on the prosecution of the remaining charges, as the sealed record and file could deny the State and the defense with relevant information and evidence related to the remaining offenses.

V Conclusion

Because the trial court properly denied AJ.M.’s petition to compel the Department to issue a certificate of eligibility for sealing, we affirm the order under review.

Affirmed.

      .Section 943.059 provides in pertinent part as follows:
      (1) PETITION TO SEAL A CRIMINAL HISTORY RECORD. — Each petition to a court to seal a criminal history record is complete only when accompanied by:
      (a) A valid certificate of eligibility for sealing issued by the department pursuant to subsection (2).
      (b) The petitioner's sworn statement attesting that the petitioner:
      2.Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.
      (2) CERTIFICATE OF ELIGIBILITY FOR SEALING. — Prior to petitioning the court to seal a criminal history record, a person seeking to seal a criminal history record shall apply to the [Department [of Law Enforcement] for a certificate of eligibility for sealing.... The department shall issue a certificate of eligibility for sealing to a person who is the subject of a criminal history record provided that such person:
      (a) Has submitted to the department a certified copy of the disposition of the charge to which the petition to seal pertains.
      (d) Has not been adjudicated guilty of or adjudicated delinquent for committing any of the acts stemming from the arrest or alleged criminal activity to which the petition to seal pertains.

      . Subsections (l)(b)2 and (2)(d) are identical. Section 943.059(1) addresses the petition for a court to seal a criminal history record, whereas section 943.059(2) pertains to the application to the Department for a certificate of eligibility for sealing. The person petitioning a court to seal a criminal history record must first obtain a certificate of eligibility from the Department. § 943.059(l)(a) (providing that "[e]ach petition to a court to seal a criminal history record is complete only when accompanied by ... [a] valid certificate of eligibility for sealing issued by the department pursuant to subsection (2)”).

      . The petition provides that A.J.M. "wishes to enter a nolo contendere to the pending charges in County Court. When he does so, because the driving under the influence charge mandates an adjudication, the defendant will loose [sic] his statutory eligibility to seal the record of his felony offense."

      . Florida Rule of Criminal Procedure 3.140(a)(2) provides in part that “prosecutions for misdemeanors, municipal ordinances, and county ordinances may be by notice to appear issued and served pursuant to rule 3.125.” Rule 3.125 provides: "Unless indicated otherwise, notice to appear means a written order issued by a law enforcement officer in lieu of physical arrest requiring a person accused of violating the law to appear in a designated court or governmental office at a specified date and time.” (emphasis added). Therefore, a person applying to the Department for a certificate of eligibility may seek to either seal a criminal history record stemming from an arrest or a criminal history record stemming from alleged criminal activity in which the person was issued a notice to appear.


author: VILLANTI, Judge.

text:
    ENTERPRISE LEASING COMPANY, Appellant, v. John DEMARTINO; Judy Demartino; Lisa Simat, as Personal Representative of the Estate of Gary Simat; and Windsor Group, Appellees.
    No. 2D08-4433.
    District Court of Appeal of Florida, Second District.
    July 10, 2009.
    Rehearing Denied Sept. 4, 2009.

      Michael A. Tonelli of Barr, Murman & Tonelli, Tampa, for Appellant.
    K. Jack Breiden of Breiden & Associates, Naples, for Appellees John and Judy Demartino.
    Clark W. Berry of Vernis & Bowling of Southwest Florida, P.A., Fort Myers, for Appellee Lisa Simat.
    No appearance for Appellee- Windsor Group.
   VILLANTI, Judge.

Enterprise Leasing Company appeals from the final summary judgment entered in favor of John and Judy Demartino, which judgment finally adjudicated the reformation count of the Demartinos’ complaint and completely disposed of the case as to Windsor Group. Because the evidence submitted by the Demartinos in support of them claim of mutual mistake was incompetent, the trial court erred in relying on that evidence to enter the final summary judgment. Therefore, we reverse and remand for further proceedings.

The facts here are fairly straightforward. The Demartinos were involved in an auto accident with Gary Simat on June 29, 1996. Gary was driving a vehicle owned by Enterprise and leased by his wife, Lisa. At the time, Gary and Lisa carried automobile liability insurance with Windsor Group.

In February 1998, the Demartinos wanted to settle only Judy’s claims under the Windsor Group policy issued to Gary and Lisa. In exchange for payment of $25,000, both Demartinos signed a release that specifically provided that they would

release, and forever discharge Gary Si-mat, Lisa M. Simat, American Deposit Insurance Company, and Windsor Group and his, her, their, and its successors and assigns, and each of them heirs, executors, and administrators, and all other persons, firms, and, corporations, of and from any and all claims, demands, rights, and causes of action, of whatsoever kind or nature, arising from or by reason of any and all known and unknown, foreseen and unforeseen bodily and personal injuries, loss and damage to property, and the consequences thereof, resulting, and to result, from an automobile accident which happened on or about the 29 day of June, 1996 at or near SR 93 and CR 896, Naples, FL.

(Emphasis added.) The release contains language stating that the personal injury claims of John Demartino and his consortium claim based on Judy’s injuries are not released. The names “Gary Simat, Lisa M. Simat, American Deposit Insurance Company, and Windsor Group” were typed on the form. The remaining language concerning releasees was preprinted.

Despite this release, on November 10, 1999, the Demartinos sued Gary and Enterprise for the personal injuries of both John and Judy Demartino. In response to Judy’s claims, Enterprise raised the affirmative defense of release, contending that the 1998 release of Judy’s claims was a general release, that Enterprise was an intended beneficiary of that release, and that Judy’s claims were therefore barred. On November 20, 2001, the trial court granted summary judgment in favor of Enterprise as to Judy’s claims on the basis of the 1998 release.

In response to this ruling, the Demarti-nos sought and obtained leave of court to file an amended complaint. In the amende ed complaint, the Demartinos added a count for reformation of the 1998 release,' naming only Windsor Group as a defendant to that count. The reformation count alleged that the 1998 release was never intended to release any entity other than Windsor Group, that the general release language was included by mutual mistake, and that the court should permit the 1998 release to be reformed to exclude the release of any entities other than Windsor Group.

The Demartinos subsequently moved for summary judgment on the reformation count. In support of their motion, they filed affidavits stating that when they signed the release in 1998, they intended to release only Windsor Group so as to obtain the insurance proceeds under the policy issued to Gary and Lisa. They alleged that they never intended to release any other party, and they specifically did not intend to release Enterprise. The De-martinos also filed the affidavit of their former attorney, who attested to the same intent on the part of the Demartinos.

In an effort to establish Windsor Group’s intent in entering into the 1998 release, the Demartinos took the deposition of Mary Anne Ragoza-Miller, who was identified by Infinity Insurance Company, the successor to Windsor Group, as the person with the most knowledge about the 1998 release. Dining her deposition, Ragoza-Miller testified that she had never worked for Windsor Group and that she was not employed by either Infinity or Windsor Group when the 1998 release was negotiated and signed. She testified that she was identified as the person with the most knowledge of the 1998 release only because she was the adjuster currently assigned to the claim. While she testified that she had no personal knowledge that would contradict the Demartinos’ allegations in their affidavits, her testimony also clearly established that she had no personal knowledge of the intent or motivations of Windsor Group when it entered into the 1998 release.

After considering this evidence and hearing argument, the trial court granted summary judgment in favor of the Demar-tinos, reforming the 1998 release to release only Windsor Group. Enterprise now appeals this decision, contending that the trial court erred in finding that the De-martinos had established the mutual mistake necessary to support the reformation count as a matter of law.

As an initial matter, we note that Enterprise has standing to challenge the entry of this final summary judgment. This court has held that an intended third-party beneficiary of a release has standing to enforce that release. See Olsen v. O’Connell, 466 So.2d 352, 354 (Fla. 2d DCA 1985). This holding arises out of general principles of contract law, which provide that an intended third-party beneficiary of a contract may sue to enforce that contract. See, e.g., Marianna Lime Prods. Co v. McKay, 109 Fla. 275, 147 So. 264, 265 (1933); M-I LLC v. Util. Directional Drilling, Inc., 872 So.2d 403, 404-05 (Fla. 3d DCA 2004). Further, this court and others have held that when a release clearly states that it releases “all other persons and/or corporations who are or may be liable” for the subject damages, the other persons and corporations may be third-party beneficiaries of that release and thus have standing to enforce the release. See, e.g., Hester v. Gatlin, 332 So.2d 660, 662 (Fla. 2d DCA 1976); Quarterman v. City of Jacksonville, 347 So.2d 1036, 1038 n. 2 (Fla. 1st DCA 1977); Dean v. Bennett M. Lifter, Inc., 336 So.2d 393, 395 (Fla. 3d DCA 1976).

Here, as noted above, the 1998 release signed by the Demartinos clearly released not only Gary and Lisa, Windsor Group, and another specifically named insurer, but also “all other persons, firms, and corporations, of and from any and all claims, demands, rights, and causes of action ... arising from ... an automobile accident which happened on or about the 29 day of June, 1996 at or near SR 93 and CR 896, Naples, FL.” When the 1998 release was signed, the Demartinos knew that Enterprise owned the vehicle driven by Gary, and they signed the 1998 release containing this broad release language despite this knowledge. On these facts, Enterprise has at least a colorable claim to being a third-party beneficiary of the 1998 release, and it therefore has standing to enforce that release.

Turning to the merits of the appeal, we must reverse the summary judgment in favor of the Demartinos because the record evidence failed to establish a mutual mistake. “A movant is entitled to summary judgment ‘if the pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials as would be admissible in evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ ” Estate of Githens ex rel. Seaman v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272, 1274 (Fla. 2d DCA 2006) (quoting Fla. R. Civ. P. 1.510(c)). The “[supporting and opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall shoiv affirmatively that the affiant is competent to testify to the matters stated therein.” Fla. R. Civ. P. 1.510(e) (emphasis added). When a supporting affidavit does not comply with these requirements, it is legally insufficient to support the entry of summary judgment in favor of the moving party. See, e.g., W. Edge II v. Kunderas, 910 So.2d 953, 954 (Fla. 2d DCA 2005) (noting that affidavit in support of action for reformation based on mutual mistake was incompetent when it contained allegations concerning matters about which the affiant could not have personal knowledge); In re Forfeiture of 1998 Ford Pickup, Identification No. lFTZXl767WNA3m7, 779 So.2d 450, 451 (Fla. 2d DCA 2000) (holding that when a supporting affidavit affirmatively showed on its face that the affiant was not competent to testify to the matters included in the affidavit, the trial court erred by relying on that affidavit when granting summary judgment); Zoda v. Hedden, 596 So.2d 1225, 1226 (Fla. 2d DCA 1992) (holding that when the affidavit in support of the moving party's motion for summary judgment showed on its face that the affi-ant was incompetent to testify, the moving party had not met its burden and the burden did not shift to the opposing party to come forward with countervailing evidence).

In this case, the Demartinos alleged that they were entitled to summary judgment on the reformation count because the 1998 release was the product of a mutual mistake. “A mistake is mutual when the parties agree to one thing and then, due to either a scrivener’s error or inadvertence, express something different in the written instrument.” Providence Square Ass’n v. Biancardi, 507 So.2d 1366, 1372 (Fla.1987); see also DR Lakes Inc. v. Brandsmart U.S.A. of W. Palm Beach, 819 So.2d 971, 974 (Fla. 4th DCA 2002) (“When an instrument is drawn and executed which is intended to carry into execution an agreement but which by mistake of the draftsman violates or does not fulfill that intention, equity will reform the instrument so as to conform to the intent of the parties.”); cf. Leo v. MacLeod, 752 So.2d 627, 629 (Fla. 2d DCA 1999) (holding that a contract is voidable when there is a mistake by both parties when the contract is entered concerning a basic assumption upon which the contract was made). Thus, to prevail on their reformation count, the Demartinos were required to show that both they and Windsor Group intended to release only Windsor Group and that the release language stating otherwise was the result of inadvertence or a scrivener’s error.

Here, the affidavits signed by the Demartinos and their counsel establish their intent to release only Windsor Group. However, no competent evidence established Windsor Group’s intent. Instead, the only evidence on that issue — the deposition testimony of Mary Anne Ragoza-Miller — is incompetent on its face. Rago-za-Miller testified in her deposition that she never worked for Windsor Group and that she had been employed by Infinity— Windsor Group’s successor — for only one year. She was not the adjuster who handled the Demartinos’ claim when the 1998 release was signed, and she had no file or documents related to their claim. She testified that she was designated as the person with the most knowledge of the' De-martinos’ claim only because “anybody else who may have handled it before is no longer with the company.” Ragoza-Miller did testify that she had no personal knowledge that would contradict anything in the Demartinos’ affidavits. However, it is readily apparent that she had no personal knowledge of Windsor Group’s intent in negotiating and signing the 1998 release because she did not become involved in the case until nine years after that release was signed.'

In light of Ragoza-Miller’s lack of personal knowledge relating to Windsor Group’s intent when the 1998 release was signed, her deposition testimony, like the affidavit testimony at issue in West Edge II, In re Forfeiture of 1998 Ford Pickup, and Zoda, is not competent evidence of Windsor Group’s intent when it drafted and signed the 1998 release. Ragoza-Mil-ler’s testimony is thus incompetent to support the Demartinos’ claim of mutual mistake. Because the Demartinos presented no other competent evidence to establish Windsor Group’s intent, the trial court erred in entering summary judgment in their favor on their reformation count.

In this appeal, Enterprise argues that this court should not only reverse the summary judgment in favor of the Demar-tinos, but also should order the trial court to enter summary judgment in its favor on remand. This we cannot do. The supreme court has held that when a release has both written and preprinted provisions concerning the intended releasees, the intent of the parties as to who is to be released is a question of fact. See Hurt v. Leatherby Ins. Co., 380 So.2d 432, 434 (Fla.1980) (holding that because the pre-printed language routinely included in releases was often “boilerplate” language that did not necessarily reflect the intent of the parties, the presence of that “boilerplate” language could not be construed as a matter of law to reflect the parties’ intent). Thus, when there are two types of release language — some written and some preprinted — within a single form, a latent ambiguity exists that requires the parties’ intent to be determined as a matter of fact. Id.

Here, like the release at issue in Hurt,, the 1998 release contains both written and preprinted terms within a single form. Pursuant to Hurt, the “boilerplate” release of other entities cannot be construed to release Enterprise as a matter of law. Instead, the question of whether both the Demai’tinos and Windsor Group intended to release entities other than Windsor Group is a question of fact. Accordingly, on this record, Enterprise is not entitled to summary judgment in its favor on remand.

Reversed and remanded for further proceedings.

SILBERMAN, J., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.

      . Lisa Simat, as personal representative of the Estate of Gary Simat, was subsequently substituted as a parly defendant.


text:
    Cynthia A. CHAPMAN, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D08-2291.
    District Court of Appeal of Florida, First District.
    July 13, 2009.

      Cynthia A. Chapman, pro se, for Appellant.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee.
   BROWNING, J.

Cynthia A. Chapman appeals a final order issued by Appellee, Florida Unemployment Appeals Commission, affirming the appeals referee’s determination that Chapman was not eligible for unemployment compensation benefits because she was not “able to work and available for work” within the meaning of the pertinent statutes and rule. Chapman, who was unrepresented by counsel in the administrative proceedings and is pro se in this Court, contends that she was wrongfully denied unemployment benefits without a satisfactory explanation. Because some of the referee’s factual grounds for finding Chapman ineligible for benefits are not supported by competent substantial evidence and we cannot discern from the order whether the referee would have drawn the same conclusions based on the fact-supported findings, we reverse the final order and remand for clarification.

Chapman filed a claim for unemployment benefits effective December 9, 2007. The Agency for Workforce Innovation (AWI) mailed notices of determination to Chapman on January 8, 2008, stating that she was ineligible for unemployment benefits pursuant to chapter 443, Florida Statutes (2007), because she was able to work and available for work. The notices include the following explanation:

The claimant is not available for work because of attending school during the customary work hours of the claimant’s occupation. Since the claimant’s school hours substantially restrict the claimant’s employability, the claimant lacks a genuine attachment to the labor market. The claimant’s work search record indicated an inadequate search for work. The claimant was not trying to become re-employed at the earliest possible time as required by law.

Chapman appealed that decision, and a notice was filed setting a telephonic hearing on February 19, 2008, before an appeals referee. The sole issue for adjudication was whether Chapman was able to work and available for work pursuant to the applicable statutes and rule. See § 443.036(1), 443.036(6), and 443.09(l)(c), Fla. Stat. (2007); Rule 60BB-3.021, Fla. Admin. Code.

The referee issued an order finding that Chapman was attending school and had “made a minimal search for employment.” The referee concluded that Chapman’s “restrictions on her availability and inadequate work search” did not evince “a realistic, current attachment to the labor market ... reflective of a true desire to become reemployed at the earliest possible date.” Noting that a claimant must be available for work each day of the customary work week, the referee determined that Chapman was unavailable for work and, thus, ineligible for unemployment benefits “until she makes an active search for employment.”

Ability to Work and Availability for Work

Chapter 443 sets out the criteria for determining whether a claimant is “able to work” and “available for work.” “ ‘Able to work’ means physically and mentally capable of performing the duties of the occupation in which work is being sought.” § 443.036(1), Fla. Stat. (2007). “ ‘Available for work’ means actively seeking and being ready and willing to accept suitable employment.” § 443.036(6), Fla. Stat. (2007); see McCormick v. Henry Koerber, Inc., 252 So.2d 599, 601-02 (Fla. 1st DCA 1971). Section 443.091(l)(c), Florida Statutes (2007), states that an unemployed person is eligible to receive benefits for any week only if the AWI finds that “[s]he or he is able to work and is available for work.” “The purpose of the availability prerequisite is to test the mental attitude of the unemployed individual as to the sincerity of his desire to procure work and the genuineness of his attachment to the labor market.” A.L. Teague v. Fla. Indus. Comm’n, 104 So.2d 612, 615 (Fla. 2d DCA 1958). This provision authorizes the AWI to develop criteria to assess a claimant’s ability to work and availability for work during any claimed week of unemployment. See id. Rule 60BB-3.021, Florida Administrative Code, which was promulgated to set out these criteria, states:

60BB-3.021. Determinations Regarding Claimant’s Ability to Work and Availability for Work.
To be eligible for a claimed week of unemployment, a claimant must be:
(1) Authorized to work in the United States; and
(2) Able to work and available for work during the major portion of the claimant’s customary work week; and
(3) Actively seeking work in a manner customary to the occupation in which work is being sought. Factors to be considered in determining whether the claimant has conducted an active work search are:
(a) The number of job contacts made by the claimant and the dates the contacts were made; and
(b) Whether the type of work being sought is reasonable considering the claimant’s background, training, abilities, and duration of employment; and
(c) Whether the claimant possesses the necessary license, certification and tools to perform the type of work being sought; and
(d) Whether the claimant is on a temporary layoff; and
(e) Whether the claimant is on a seasonal layoff and resides in a geographical area in which no suitable off-season work prospects are available.
(4) Free of unreasonable occupational restrictions regarding wages, hours, place and type of work in relation to the claimant’s training, experience, work history, and local labor market conditions.
(5) Free of personal circumstances which would substantially limit or restrict the claimant from conducting an active work search or accepting an offer of suitable employment. Examples of such circumstances may include:
(a) Attendance at school or a training course during customary work hours unless the claimant continues to actively seek work and is willing to change or forego classes or training that interfere[s] with the claimant’s ability to accept work
(b) Absence from the local area unless the absence is for the primary purpose of seeking work or working; or
(c)Domestic responsibilities and conditions which substantially interfere with the claimant’s ability to seek and accept suitable work.
(6)For any period in which the claimant is participating in training approved by the Agency as provided in Section 443.091(l)(c)2., F.S., and Rule 60BB-3.022, F.A.C., the claimant is exempt from the requirements set forth in subsections (2) through (5) of this rule.

Evidentiary Record

Chapman, who was the only witness to testify at the hearing, gave sworn, essentially undisputed testimony regarding the circumstances surrounding her unemployment status and her job search. Soon after being laid off by her former employer, Citigroup, where she had performed clerical and customer service work for four years on an 8:45 A.M.-5:00 P.M. schedule, Chapman filed a telephonic claim for unemployment benefits. In December 2007, she started working for “temp services.” Chapman testified unequivocally that she had been physically able to work since filing her claim. She was taking courses in medical insurance billing and coding on-site at Everest University from 6:00 P.M. to 10:00 P.M. One month earlier, she had switched from afternoon classes. Her classes were to end the month after the hearing. She had decided to take the classes in a different field in an effort to qualify her for a more stable career rather than for just any 9:00 to 5:00 job.

When she was asked whether she had contacted any prospective employers, Chapman answered that she had contacted two temp services, Randstad and Kelly, and provided them with her resume. She already was a client of the temp services, which had set up Chapman to work for her previous employer. She denied having yet received any documentation from the state advising her to send in a copy of her work search. Chapman did not keep a record of specifically when she had contacted the temp services. The arrangement with the temp services called for Chapman to contact them periodically and to keep them updated. The temp services agreed to call her if any prospective employment became available. Employment conditions were “slow” for the types of positions she was seeking, and Chapman had not received any job offers through the temp services since filing her claim.

Chapman, who is solely responsible for the care and support of her four children, testified that she had filed a claim for unemployment benefits to have some money coming in while she sought new employment and improved her job skills through course work. Significantly, Chapman testified without qualification that she was actively seeking employment and could adjust her school work or quit school to accommodate full-time employment. No evidence was adduced to suggest that Chapman was participating in training approved by the AWI that would exempt her from the requirements of subsections (2)-(5) of the administrative rule.

Application of the Law to the Facta

The appeals referee relied on competent substantial evidence in the record demonstrating that Chapman was taking courses but could change her class schedule to accommodate an employment opportunity. While acknowledging that Chapman had registered with, and provided relevant information to, two temp services with which Chapman was familiar from her previous employment, the referee found that Chapman’s work search was minimal and not active. The referee’s conclusion appears to be based solely on Chapman’s attending school, unspecified “restrictions on her availability,” and the absence of any evidence that Chapman also had contacted prospective employers on her own rather than through the temp services.

Contrary to Chapman’s testimony that she had not received any paperwork from the state requiring her to document her work search, the record on appeal includes an AWI pamphlet, paragraph 6 of which states that if the issue is whether the claimant is able to work and available to work (as it is in Chapman’s case), the claimant must send a copy of the woi'k search contact sheets to the Appeals Office before the hearing, including a job contact date, the method of contact, and the prospective employer’s name and address.

The undisputed evidence adduced at the hearing is that Chapman is “able to work,” as contemplated in section 443.036(1), in that she is “physically and mentally capable of performing the duties of the occupation in which work is being sought.” Chapman asserted undisputedly that she has a flexible class schedule and is ready and willing to accept suitable full-time employment when it becomes available. Thus, the only statutory basis for the referee to have found that Chapman is not “available for work” is that she has conducted a minimal search and is not “actively seeking” suitable employment. See § 443.091(l)(c), Fla. Stat. (2007); Rule 60BB-3.021(3), Fla. Admin. Code.

Of the five enumerated factors in rule subsections (3)(a)-(e) relevant to the instant facts in determining whether Chapman has pursued an active work search, the referee’s findings indicate that subsections (3)(a) (referring to the number of job contacts made by the claimant and the dates of those contacts), (4) (referring to the claimant’s freedom from “unreasonable occupational restrictions”), and (5)(a) (referring to the claimant’s freedom from substantially limiting personal circumstances such as school attendance or training courses during customary work hours) are the only ones on which the referee relied in finding Chapman ineligible for unemployment benefits.

The claimant has the burden to prove eligibility for benefits, including availability for work. See Fla. Indus. Comm’n v. Ciarlante, 84 So.2d 1, 5 (Fla.1955). In unemployment compensation appeals, we review findings of fact to determine whether they are supported by competent substantial evidence. See id. at 3. We review de novo whether the appeals referee and Appellee/Commission correctly applied the law to the essentially uncontested facts supported by the record. See Brister v. Dep’t of Children & Families, 906 So.2d 1187, 1188 (Fla. 4th DCA 2005). We are mindful, however, that Appel-lee/Commission’s interpretation of the unemployment compensation benefits statutes, which it is legislatively empowered to administer, is “entitled to great weight,” meaning that Appellee/Commission’s interpretation will not be overturned unless it is clearly erroneous. See Dep’t of Ins. v. S.E. Volusia Hosp. Dist., 438 So.2d 815, 820 (Fla.1983); Cargill, Inc. v. Hill, 503 So.2d 1340, 1342 (Fla. 1st DCA 1987).

Given the unrefuted record presented to the appeals referee demonstrating Chapman’s flexible class schedule and willingness to work, we find no competent substantial evidence indicating that Chairman’s attending evening classes to broaden her training skills substantially limited or unduly restricted her ability to conduct an active work search. Therefore, subsection (4) of the rule is not a proper basis for denying Chapman’s eligibility. Likewise, no competent substantial evidence supports subsection (5)(a) as a proper basis, given the flexibility of Chapman’s course schedule. Even if we assume, without having to decide, that the, statutes and rule require a claimant who registers with two temp services also to conduct an active work search on her own, it is unclear from this record whether the appeals referee would have found Chapman ineligible for unemployment benefits based solely on her failure to provide the state with documentation of her job contacts and the dates of those contacts. Thus, we cannot affirm the final order based on the reasoning of the “tipsy coachman” rule that the finder of fact reached the right result, albeit for the wrong reasons. See Malu v. Sec. Nat’l Ins. Co., 898 So.2d 69, 73 (Fla.2005). We are constrained to reverse Appel-lee/Commission’s final order and remand with instructions to the appeals referee to make findings based solely on the evidence in the record.

REVERSED and REMANDED with instructions.

HAWKES, C.J., and VAN NORTWICK, J., concur.


text:
    T.W.H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-4084.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2009.

      James S. Purdy, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Taylor v. State, 386 So.2d 825 (Fla. 3d DCA 1980); Hobbs v. State, 378 So.2d 321 (Fla. 2d DCA 1980); Franklin v. State, 356 So.2d 1352 (Fla. 2d DCA 1978); Fuller v. State, 294 So.2d 367 (Fla. 3d DCA 1974).

MONACO, C.J., COHEN and EVANDER, JJ., concur.


text:
    Kevin SLATTERY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-4408.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2009.
    C.M. Barnette, of Law Office of C. Michael Barnette, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   ON REMAND

PER CURIAM.

AFFIRMED. See Martinez v. State, 981 So.2d 449 (Fla.2008).

PALMER, C.J., TORPY and COHEN, JJ., concur.


text:
    Casey CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1366.
    District Court of Appeal of Florida, Fifth District.
    July 14, 2009.
    Casey Cunningham, Tampa, pro se.
    No Appearance for Appellee.
   PER CURIAM.

DISMISSED. See Dougherty v. State, 10 So.3d 172 (Fla. 5th DCA 2009).

SAWAYA, PALMER and LAWSON, JJ., concur.


text:
    David M. DEREN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2039.
    District Court of Appeal of Florida, Fourth District.
    July 15, 2009.
    Paul Morris of Law Offices of Paul Morris, P.A., Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand from the Supreme Court of Florida

PER CURIAM.

In Deren v. State, 962 So.2d 385 (Fla. 4th DCA 2007), we rejected appellant’s claim of a Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation because appellant could have obtained the withheld evidence himself with reasonable diligence. For this holding, we relied upon Melendez v. State, 612 So.2d 1366, 1368 (Fla.1992). See Deren, 962 So.2d at 387.

The Florida Supreme Court reversed our decision, pointing out that the Brady test enunciated in Melendez had been abandoned in “numerous” cases. Deren v. State, 985 So.2d 1087, 1088 (Fla.2008). The case was remanded to us to apply the correct Brady test outlined by the United States Supreme Court in Strickler v. Greene, 527 U.S. 263, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999).

Under the Strickler test, to establish a Brady violation the defendant has the burden to show “(1) that favorable evidence, (2) was willfully or inadvertently suppressed by the State, and (3) because the evidence was material, the defendant was prejudiced.” Deren, 985 So.2d at 1088.

Appellant was convicted of two battery offenses and one count of disorderly conduct. The convictions arose from a fight at a bar. Appellant intei-vened in an altercation between his good friend and the bar’s bouncer, Jerry Fitzpatrick. As a result of injuries sustained in the fight, Fitzpatrick submitted a worker’s compensation claim.

The state withheld a letter from the bar’s compensation insurance provider detailing that Fitzpatrick had received $20,956.47 for medical bills and $2,946.84 for lost wages. Section 440.09(3), Florida Statutes (2007), provides that “[c]ompensation is not payable if the injux-y was occasioned primarily ... by the willful intention of the employee to injure or kill ... another.” The defense wanted to use the letter to demonstrate Fitzpatrick’s financial motive to paint appellant and his friend as the instigators of the initial fight. This type of financial interest is a proper subject of cross examination. Had such information been disclosed ;by the state “a reasonable probability exists that the outcome of the proceedings would have been different.” Young v. State, 739 So.2d 553, 558 (Fla.1999) (quoting Robinson v. State, 707 So.2d 688, 693 (Fla.1998)). “A ‘reasonable probability’ of a different result is ... shown when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Young, 739 So.2d at 557 (quoting Kyles v. Whitley, 514 U.S. 419, 434-36, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). For these reasons, we reverse appellant’s convictions and remand for a new trial.

GROSS, C.J., POLEN and CIKLIN, JJ., concur.


author: RAMIREZ, C.J.

text:
    HAYIM REAL ESTATE HOLDINGS, LLC., Appellant, v. ACTION WATERCRAFT INTERNATIONAL INC., Mooney Investments, Ltd., and Howard F. Mooney, Appellees.
    No. 3D08-3132.
    District Court of Appeal of Florida, Third District.
    July 15, 2009.

      Ehrenstein Charbonneau Calderin, and Edward Welch, and Michael D. Ehren-stein, for appellant.
    Robinson & Associates, and Raymond L. Robinson, and Douglas C. Hiller, for ap-pellees.
    Before RAMIREZ, C.J., and COPE, and SUAREZ, JJ.
   RAMIREZ, C.J.

Plaintiff Hayim Real Estate Holdings, LLC, appeals the trial court’s final order granting the defendants’ Motion for Final Summary Judgment. Because we conclude that there are unresolved genuine issues of material fact, we reverse and remand for further proceedings consistent with this opinion.

I. Factual Background

On April 3, 2004, Hayim, as purchaser, and defendant H. Moony Investments, Ltd. (“HMI”), as seller, entered into a Purchase Agreement for the transfer of certain commercial real property as part of the asset purchase of a business that operated at that site. Article V, Section 5.03 A, of the Purchase Agreement allowed the purchaser a fifteen day grace period from the effective date of the agreement to inspect the property. During this inspection period, the purchaser could terminate the agreement for any reason without incurring liability. Furthermore, subsection 5.03 D stated as follows:

Purchaser is purchasing the property in “AS IS” condition. Notwithstanding anything to the contrary contained in this subsection 5.03 D, all mechanical, electrical, plumbing, heating, cooling and/or ventilating system in the Property shall be in working order at Closing.

In Article XII(e), Mooney represented having “no knowledge of any facts which would indicate that the property suffers from any environmental or hazardous waste contamination.”

Approximately four months following the execution of the Purchase Agreement, the parties completed the sale of the property and possession transferred to Hayim. Subsequent to the transfer, Hayim claims to have discovered several latent problems on the property. The discoveries, which included problems involving the septic tank and drainage field, resulted in this action. Hayim sued the defendant for breach of contract and fraudulent concealment/nondisclosure.

Hayim’s complaint alleged that the defendants had prior knowledge of the septic tank and drainage field problems which they chose to ignore and failed to make the needed repairs. Mr. Garrett Hayim, principal of the plaintiff, claimed in his deposition that he examined the property during the inspection period including the area above the drain field, which was located underneath an asphalt lot. However, Mr. Hayim stated that prior to the inspection, the asphalt located above the drain field was torn out, and the area resurfaced "with pavers. He claimed that this was done by the defendant to conceal signs of a problem such as would be demonstrated by-water and waste overflow. Consequently, Hayim alleged that as a result of the septic tank and drainage field problems, the plumbing system was not in working order at the time of “Closing” and that this problem caused the property to suffer an environmental or hazardous waste contamination. Hayim further alleged that the defendants’ failure to inform Hayim of the problems and their active concealment of them resulted in both a breach of the defendants’ contractual obligations and a fraudulent misrepresentation.

In support of the plaintiffs allegations, the record includes an affidavit by Ms. Dulce Lopez-Proveyer. Ms. Lopez-Pro-veyer is a former employee of the business that the defendant sold in connection with the transfer of the real property. After the sale closed, Ms. Lopez-Proveyer continued her employment with the purchaser as its business manager. In her affidavit, Ms. Lopez-Proveyer stated that Mr. Howard Mooney “had knowledge, prior to the closing of the sale of the premises, of a defective septic drain field which he undertook to conceal by placing cement pavers over the problem.” The defendants countered with an affidavit from Mr. Howard Mooney, who conceded that “prior to the installation of the pavers, the area in question was covered with asphalt” and that “Hayim executed the contract to purchase the property prior to the installation of the pavers.” However, Mr. Mooney claimed that “the pavers that were installed were not installed to conceal any problems with the drainage field.” This contradicts Ms. Lopez-Proveyer statement. The trial court granted the defendants’ Motion for Final Summary Judgment, which Hayim now appeals.

II. Analysis

This court reviews de novo the decision of a trial court to grant summary judgment. “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); see also Fla. R. Civ. P. 1.510(c). Further, the party moving for summary judgment has the burden of proving the “absence of a genuine issue of material fact.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).

In reaching its decision to grant summary judgment, the trial court relied on this Court’s holding in Futura Realty v. Lone Star Building Centers. (E.), Inc., 578 So.2d 363 (Fla. 3d DCA 1991). Futura stands for the doctrine of caveat emptor with regard to the sale of commercial real property: “the commercial property vendor owes no duty for damage to the land to its vendee because the vendee can protect itself in a number of ways, including careful inspection and price negotiation.” Id. at 365. However, the instant case is distinguishable from Futura in that here, the plaintiff claims it owed it a duty under the express agreement it negotiated: to provide specific systems in working order as well as communicate their knowledge of specific problems. The plaintiff alleges that the defendants’ failure to provide specified systems in working order at closing as well as them failure to communicate the known problems constitutes an express breach of the agreement. Intertwined with the facts regarding its contract breach argument, the plaintiff further alleges an alternate basis for a claim, the defendants’ active concealment of known defects. Consequently, to affirm summary judgment, this Court would have to agree that no genuine issue of material fact remained as to whether: (1) the defendants breached an express contractual duty to inform Hayim of specified problems, (2) the defendants breached an express contractual duty by failing to have the specified systems in working order at closing; and (3) the defendants actively concealed known defects from the plaintiff.

In a commercial real property transaction, Florida law distinguishes between the mere nondisclosure of a known defect, a non-actionable offense, and the active concealment of one, an actionable offense:

The doctrine of caveat emptor (literally, “let the buyer beware”) provides that, when parties deal at arm’s length, buyers are expected “to fend for themselves, protected only by their own skepticism as to the value and condition of the subject of the transaction.” Biff Craine, Note, Real Property — Sellers’ Liability for Nondisclosure of Real Property Defects — Johnson v. Davis, 480 So.2d 625 (Fla.1986), 14 Fl. St. U.L.Rev. 359, 361 (1986). Absent an express agreement, a material misrepresentation or active concealment of a material fact, the seller cannot be held liable for any harm sustained by the buyer or others as the result of a defect existing at the time of the sale. See, e.g., W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 64, at 447 (5th ed.1984); Frona M. Powell, The Seller’s Duty to Disclose in Sales of Commercial Property, 28 Am. Bus. L.J. 245, 248-50 (1990).

Haskell Co. v. Lane Co., 612 So.2d 669, 671 (Fla. 1st DCA 1993).

Because the facts regarding the claims in the present case are intertwined, this Court does not need to examine the plaintiff’s claims separately. The presence of a genuine issue of material fact regarding the active concealment of known defects by the defendants would likewise provide a genuine issue of material fact concerning the defendant’s breach of its express contractual duties. We hold that Ms. Lopez-Proveyer’s affidavit provides a genuine issue of material fact as to whether the defendants’ actively concealed a known defect.

The First District Court of Appeal held that “the mere fact that evidence as to certain material facts is uncontroverted does not at all mean that there is no genuine issue as to the material facts if the uncontroverted evidence is lawfully susceptible to two or more conflicting inferences.” Smith v. City of Daytona Beach, 121 So.2d 440, 443 (Fla. 1st DCA 1960). In the present case, the parties agreed to a 15-day inspection period and required that certain disclosures be made. Once the parties entered into the Purchase Agreement, them duties towards each other were altered. Sepe v. City of Safety Harbor, 761 So.2d 1182, 1184 (Fla. 2d DCA 2000).

Mr. Mooney’s affidavit acknowledges both that prior to the installation of the pavers, the area above the drain field was covered with asphalt and that the pavers were installed after the Purchase Agreement was executed. In Mr. Garrett Hay-im’s deposition, he stated that when he first inspected the property, within the 15-day window provided by the Purchase Agreement, the pavers had already been installed. These statements also raise a genuine issue of material fact as to when and why the defendants installed the pav-ers, particularly because the pavers represented a capital expenditure on property which had already contracted to sell for a fixed price. Similar to the First District Court of Appeal’s holding in Smith with regards to “uncontroverted evidence,” this Court adopted 30 Fla. Jur., Summary Judgment § 9 at 347, in its holding in Berlanti Constr. Co. v. Miami Beach Fed. Sav. & Loan Asso’n., 183 So.2d 746, 748 (Fla. 3d DCA 1966):

Even where the facts are undisputed, issues as to the interpretation of such facts may be such as to preclude the award of a summary judgment. If the evidence raises the slightest doubt on any issue of material fact, if it is conflict-' ing, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it. Where reasonable men might justifiably make different inferences and deductions and reach different conclusions it cannot be said that there is no genuine issue of material fact.

Id. at 748.

III. Conclusion

In sum, there remain genuine issues of material fact that should be submitted to a jury. We therefore reverse the trial court’s final order granting the defendants’ Motion for Final Summary Judgment.

Reversed and remanded for further proceedings consistent with this opinion.