author: LEVINE, J.

text:
    Esdras CARDONA, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-3636.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Rehearing Denied March 28, 2013.

      Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, West Palm Beach (withdrawn after filing of initial brief), and Seth E. Miller and Michael J. Minerva, Innocence Project of Florida, Inc., Tallahassee, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred in not holding an evidentiary hearing before ordering specific procedures for DNA testing. The procedures include having the evidence in question cut and divided by the state’s expert for the state to retain before appellant’s private laboratory has an opportunity to perform DNA tests. Also at issue is whether the trial court erred in denying appellant’s request to test hairs found on a T-shirt and bedding in the victim’s residence.

We find the trial court erred in allowing the state to cut and withhold certain parts of the evidence in question, without first holding an evidentiary hearing relating to the procedures for DNA testing. At an evidentiary hearing, the testing experts could testify as to the advisability of the proposed splitting procedures and the impact on the likelihood of appellant obtaining a DNA profile from the evidentiary items tested. We also find that the trial court erred in not granting the testing of hairs because, based upon the victim’s testimony, DNA results favorable to appellant would create a “reasonable probability” that appellant would be acquitted or receive a lesser sentence, when considered in conjunction with the other evidence ordered to be tested.

Appellant disputes his identification as the perpetrator of the crimes. The facts of the case can be summarized as follows. The victim awoke to the perpetrator raping her. A struggle ensued and the victim reached for the perpetrator’s hair and pulled his head back. The perpetrator fled. The victim exited her room and told her neighbor that one of the dishwashers at her place of employment had been the perpetrator. Later, when shown pictures of all sixteen dishwashers, she identified appellant. The victim told law enforcement that the T-shirt found on her bed did not belong to her or anyone else she knew. A crime scene technician collected the T-shirt, the victim’s bikini bottom and pajama bottom she was wearing at the time of the assault, the victim’s bed sheet, and hairs from the victim’s bed. Following a rape examination at the hospital, an examiner collected a vaginal swab, fingernail scrapings, and pubic hair combings. The examiner also collected the victim’s clothing and a tampon she was using that night during and after the attack.

Upon returning to her residence, the victim found an unknown toothbrush in her room. The victim’s boyfriend recalled seeing appellant carry a toothbrush or chew on a toothbrush. An analyst later tested the toothbrush and determined that appellant was the source of the DNA on the toothbrush and that only one in 21 quintillion Hispanics would share the same DNA profile.

At trial, appellant’s defense was mis-identification. The jury found appellant guilty of sexual battery and burglary. Subsequently, appellant filed a motion for DNA testing pursuant to Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes (2008). Appellant filed this motion for testing in order to utilize more sophisticated DNA testing known as “miniSTR,” which is more sensitive at detecting small amounts of DNA, and Y-STR, which amplifies the male chromosome. This testing would be conducted by outside laboratory Orchid Cell-mark, at appellant’s expense, since neither the Palm Beach County Sheriffs Office nor the Florida Department of Law Enforcement is able to perform these types of sophisticated DNA testing. Appellant sought to test the following items: vaginal swabs; fingernail scrapings; the tampon; bathing suit bottoms; sweatpants; pajama bottom; the T-shirt; and hairs found on the T-shirt, bed, fitted sheet, and bed sheet.

The trial court held an evidentiary hearing on whether DNA results favorable to appellant would create a “reasonable probability” that appellant would be acquitted or receive a lesser sentence. See Fla. R.Crim. P. 3.853(c)(5)(C). At this hearing, the associate lab director for Orchid Cell-mark described the testing that her lab could conduct. The victim had testified that she did not have sexual intercourse for a week-and-a-half to two weeks before the incident, and that the victim usually had intercourse in her boyfriend’s room and not in her own room. Based on this testimony, the associate lab director stated that if a male DNA profile were found on the tampon, it would have to be from the perpetrator, and if it did not match appellant, then that would lead to the conclusion that appellant was not the perpetrator in this case.

On the day scheduled for final arguments on the motion for DNA testing, the state “made a decision that we are actually going to agree to testing of some of the items.” However, at this hearing the state introduced a new issue to the trial court:

The last item that I wanted to mention to you that we do appear to have a disagreement on is the fact that in the Defendant’s motion, they are requesting that all of the evidence be transported to Orchid Cellmark with nothing left behind at the P.B.S.O. Lab. After consulting with my expert and given the fact that I have worked on cases in the past, the protocol is not necessarily to ship all of the State’s evidence off to a private lab picked by the defense out of state. If Your Honor deems it helpful, I do have my expert here to talk about the proper protocols, how some samples can be divided where the State can maintain portions of the evidence to be tested without sending the entirety of the evidence. Now, it would be — the State’s position is that that should be within the purview of the scientific experts to decide whether the evidence can be tested and whether the testing would have significance if it’s divided or if that would in any way diminish that. That is something that I believe should be determined by the scientific experts.

The state further expressed concern that the evidence could be consumed by the testing of the outside lab:

But to ship off all of the State’s evidence to an outside lab is — it’s not appropriate.... But, Your Honor, in the event that perhaps in the future, you know, if the testing goes a certain way and Your Honor orders a new trial, if the State has lost all of their evidence or if it has been consumed or if something has happened to it in transport or while it was out of the custody of the State, then it would be an unfair advantage to the defense, Your Honor. And that is why, just in an abundance of caution, we think it important to keep a small sample.

The state admitted at this hearing that whether the evidence could be divided was not a legal issue but rather a scientific issue.

Appellant responded that his “main contention” now was the way that the state sought to divide the evidence. Further, this was the “first time” that appellant’s counsel had heard of dividing the evidence in this manner. In response to the state’s concern about consumption of the evidence, appellant suggested that the trial court “put that in your Order that we would have to then agree if the State looked — went to the lab and looked at the evidence and it was determined that we were going to get like one shot at the evidence, then we would have to agree, you know, on consuming the sample.”

The trial court stated that it was not expecting this issue to be raised at the hearing and further stated that it “might have to have an evidentiary hearing secondary to this evidentiary hearing to determine what is the most appropriate method” regarding the shipping of the materials to an outside agency. The trial court concluded by stating that if it “cannot resolve the differences on paper” from the proposed orders submitted, then it would set “an evidentiary hearing to resolve the proposed Order.” An evidentia-ry hearing was never set on this matter.

Appellant filed a motion detailing the protocols and preservation of DNA evidence at the private laboratory. Appellant argued that the private laboratory needed to review the evidence in its entirety to perform DNA testing; otherwise, potentially exonerating evidence would be unavailable for testing. The state responded by citing to the necessity of retaining portions of evidence for future testing.

The trial court entered a written order granting appellant’s motion for DNA testing for all items requested except the hairs found on the T-shirt and bedding. As to the procedures for testing, the trial court directed all the items be sent to the PBSO crime lab, where a representative of the private laboratory and a PBSO forensic scientist would examine the items for areas most likely to contain DNA. Both representatives would agree on the items to be cut or swabbed and then cut or swab those samples and forward them to Orchid Cell-mark, the private laboratory. The state would retain a portion of each cutting or swab for future testing or use. The trial court allowed the fingernail clippings to be sent in their entirety to the private laboratory, since the state conceded the sample was too small to divide. The order allowed for the presence of the parties’ attorneys during the testing.

Appellant moved for rehearing, arguing that requiring a representative from the private lab to come to the PBSO crime lab would make the cost of private laboratory testing prohibitive. Appellant argued that the plain language of rule 8.853(c)(7) required him to pay only for actual testing, not the safeguard procedures crafted by the trial court. Appellant further argued that the PBSO forensic scientist was not qualified to determine which portions of the evidence should go to Orchid Cellmark, since she was not qualified to perform the two types of testing to be performed by Orchid Cellmark. Finally, appellant argued that the presence of attorneys could contaminate the evidence, and that there was no rule requiring the splitting of evidence.

On rehearing, the trial court found the PBSO forensic scientist qualified to determine which portions of evidence should be sent to Orchid Cellmark. In response to appellant’s claim that having a representative of Orchid Cellmark at the PBSO crime lab was cost prohibitive, the trial court made the presence of that representative optional. Finally, the trial court denied appellant’s request for the entirety of the evidence being sent for testing, without allowing for the presence of the attorneys. As a result, this appeal ensues.

A trial court’s factual findings after an evidentiary hearing on a postconviction motion for DNA testing are reviewed for competent substantial evidence. See Goodwin v. State, 91 So.3d 182 (Fla. 4th DCA 2012). The particular testing procedures adopted by the trial court are reviewed de novo to determine whether they employ a method generally accepted by the scientific community. See Brim v. State, 695 So.2d 268, 274 (Fla.1997).

DNA testing is governed by Florida Rule of Criminal Procedure 3.853 and section 925.11, Florida Statutes. Rule 3.853(c) sets forth the following guidelines for the trial court:

(5) The court shall make the following findings when ruling on the motion:
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.
(7) The court-ordered DNA testing shall be ordered to be conducted by the Department of Law Enforcement or its designee, as provided by statute. However, the court, upon a showing of good cause, may order testing by another laboratory or agency certified by the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) or Forensic Quality Services, Inc. (FQS) if requested by a mov-ant who can bear the cost of such testing.

Section 925.11(2)(f)3. through (g) contains nearly identical provisions.

In our analysis, we look to the plain language of rule 3.853(c)(7). Nowhere does this rule appear to authorize the splitting of physical evidence for DNA testing. In fact, the splitting of physical evidence may frustrate the stated intent of the rule, which was promulgated to establish procedures for testing pursuant to sections 925.11 and 925.12. Section 925.11(l)(a)l. allows the defendant to “petition th[e] court to order the examination of physical evidence collected at the time of the investigation of the crime for which he or she has been sentenced that may contain DNA (deoxyribonucleic acid) and that would exonerate that person or mitigate the sentence that person received.” The intent of the statute, and the companion rule, is to establish a methodology for a convicted defendant to have physical evidence examined for possible exoneration or mitigation of sentence.

Further, we find the case of Hooks v. State, 956 So.2d 515 (Fla. 4th DCA 2007), to be most instructive. In Hooks, the defendant objected to the state testing and unavoidably consuming DNA evidence outside the presence of the defense expert and without a video camera to document the state’s actions. The trial court found that the defendant could not have an expert present during the testing due to concerns about potential contamination of the evidence and concerns the crime lab could lose its accreditation. In Hooks, this court recognized that there was “no constitutional violation” since “the unavoidable consumption of evidence during DNA testing” was “done in good faith” and, thus, there was no violation of “due process.” Id. at 516 (citing Gordon v. State, 863 So.2d 1215, 1220 (Fla.2003)) (citing Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988)). This court recognized that “the better practice is for the Stats to notify the defense of the unavoidable consumption of evidence prior to the testing in order to give the defendant or a representative a fair opportunity to be present during the testing.” Id.

In the present case, it is appellant, not the state, who wants to test the DNA evidence in good faith. The rule that unavoidable and good faith consumption of DNA evidence by the state does not violate due process should apply with equal force to the defense. See generally Delhall v. State, 95 So.3d 134, 162-63 (Fla.2012) (rule governing exclusion of evidence for a discovery violation applies with equal force to the defense and state); Rivera v. State, 670 So.2d 1163, 1165 (Fla. 4th DCA 1996) (prohibition against race-based discrimination applies equally to peremptory challenges exercised by the state and the defense), receded from on other grounds by Foster v. State, 767 So.2d 525 (Fla. 4th DCA 2000). Thus, we find that a defendant may, as a general rule, exhaust DNA in postconviction testing only where, as when done by the state, it is done in good faith. Further, in the present case, appellant agreed to either reach an agreement with the state or come back to the trial court before it sought testing which would potentially consume the DNA evidence.

This court in Hooks determined that an evidentiary hearing was required so that the parties could “demonstrate whether it is practicable to allow videotaping or the presence of a defense expert during the DNA testing process.” 956 So.2d at 516. The court remanded for “an evidentiary hearing that will allow the parties to further develop the record with respect to the contamination, concentration and accreditation issues and, if possible, to develop safeguards that would allow for the presence of a defense expert or videotaping of the testing procedures.” Id. This court concluded that “[t]he parties should have an opportunity to present evidence” on these issues and “the parties should have the chance to establish whether the presence of a video camera or defense expert increases the potential for contamination of the evidence and affects the concentration of the examiner performing the testing procedures.” Id. at 516-17.

In the present case, the parties should get the same opportunity to present evidence and witnesses, and be able to establish whether cutting or splitting the DNA evidence affects the testing or appellant’s ability to present evidence of exoneration or mitigation pursuant to the applicable rule and statute. As noted previously, even the state, at the hearing when the issue was first discussed, admitted that this was an issue that required scientific testimony and was prepared to call a witness regarding this issue. Further, appellant postulated that potentially exonerating or mitigating evidence could very well be present on the material not chosen for testing by the state’s expert. This claim may have merit and should be considered by the trial court at an evidentiary hearing on this particular issue.

We find that before determining that splitting or cutting of DNA evidence was warranted, the trial court should have held an evidentiary hearing where the parties could have presented evidence on the effect of splitting or cutting the DNA evidence. The evidentiary hearing should determine the scientific efficacy of splitting or cutting DNA evidence, as well as consider the possible destruction of DNA evidence by the requested testing.

Finally, we find that the trial court erred in denying the motion to test the hairs found on the T-shirt and bedding. In denying the request to test the hairs, the trial court cited Florida Supreme Court cases affirming the denial of motions for postconviction DNA testing of hairs at crime scenes. We find those cases distinguishable because, unlike in the present case, there was no evidence potentially linking the hairs in those cases to the crimes alleged. See Overton v. State, 976 So.2d 536, 568 (Fla.2007) (defendant did not establish “requisite nexus between the hair and the crime” where “hair could have easily originated from a large number of sources” and there was “no way to determine when, why, where, or how the hairs attached to the tape” that was used on the victim’s body); Lott v. State, 931 So.2d 807, 820-21 (Fla.2006) (defendant failed to offer any reason to suspect hairs were specifically connected to the crime, as “opposed to being hairs left behind by normal guests”); King v. State, 808 So.2d 1237, 1247 (Fla.2002) (impossible to determine when, where, or how hair fragment transferred to victim’s nightgown; victim had dragged herself through the house, been pulled from the house by rescuers, and other personnel had been in the house). Here, in contrast, the victim specifically testified that she pulled on the perpetrator’s hair while he was on her bed. Thus, there is a reason to believe that the hairs on the bed belonged to the perpetrator. Additionally, the T-shirt found on the victim’s bed was likely worn by the perpetrator thus giving rise to the reasonable probability that the hairs on the shirt belonged to him.

Assuming that other evidence to be tested is exculpatory, the hair evidence could buttress the exculpatory nature of that evidence and support a conclusion that appellant was not the perpetrator. By reversing the denial of the testing of the hairs in this case, we need not decide if the hairs in and of themselves give rise to a reasonable probability of acquittal, but when viewed in conjunction with the other evidence, we find that they satisfy the reasonable probability standard.

In conclusion, we reverse and remand for the trial court to hold an evidentiary hearing on the issue of the scope and procedure for testing the items for DNA evidence. We also reverse and remand for DNA testing of the hairs on the T-shirt and bedding.

Reversed and remanded.

GROSS and DAMOORGIAN, JJ., concur.


source: Caselaw Access Project

author: CIKLIN, J.

license: Public Domain

text:
    Ekaterini ALEXOPOULOS and Konstantinos Alexopoulos, Appellants, v. GORDON HARGROVE & JAMES, P.A., and Attorney Mark Blumstein, Appellees.
    No. 4D11-4829.
    District Court of Appeal of Florida, Fourth District.
    Feb. 6, 2013.
    Rehearing Denied March 27, 2013.

      Ekaterini Alexopoulos and Konstantinos Alexopoulos, Boca Raton, pro se.
    Craig J. Trigoboff and William E. Cal-nan of Waldman Trigoboff Hildebrandt Marx & Calnan, P.A., Weston, for appel-lees.
   CIKLIN, J.

Ekaterini Alexopoulos appeals the trial court’s entry of final summary judgment in favor of the defendants, Gordon Hargrove & James, P.A. and Mark Blumstein (collectively referred to as “Gordon Hargrove”). The trial court based its decision to grant summary judgment solely on its finding that Alexopoulos did not have standing to bring her legal malpractice claims against Gordon Hargrove. Because Gordon Har-grove did not raise the issue of standing sufficiently in its motion for summary judgment, and never raised standing as an affirmative defense, we are compelled to reverse the summary judgment. Because we are reversing the summary judgment, we find that Alexopoulos’s appeal of the post-judgment order granting Gordon Hargrove’s motion for attorneys’ fees is moot, even though we would not have had jurisdiction to rule on it because it determined only entitlement to fees.

A review of the complicated litigation below is unnecessary to resolve this appeal. At one point during the proceedings, Gordon Hargrove filed a motion for summary judgment, which explicitly stated that Gordon Hargrove was entitled to summary judgment “on two bases.” These bases were (1) that Alexopoulos abandoned any claims against Gordon Hargrove due to her entering into a settlement agreement with a third party, and (2) that the record contained no evidence that Gordon Hargrove was the proximate cause of Alexopoulos’s damages.

On page seventeen of the nineteen-page motion, Gordon Hargrove stated in a con-clusory, one-sentence footnote that Alexo-poulos did not have standing to pursue her claims. Gordon Hargrove cited no case law or other authority for this proposition.

The trial court issued an order granting the motion for summary judgment. In its order, the trial court explicitly held that it was basing its order solely on the grounds that Alexopoulos did not have standing to bring the claims against Gordon Hargrove. The trial court then entered the final judgment which Alexopoulos appeals, arguing that the trial court granted summary judgment based on a ground not sufficiently raised by Gordon Hargrove.

We review an order granting summary judgment de novo. See Leben v. State Farm Fla. Ins. Co., 98 So.3d 528, 529 (Fla. 4th DCA 2012).

“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) (citation omitted). The moving party is required to raise the grounds for summary judgment with particularity in order to “eliminate surprise and to provide the parties a full and fair opportunity to argue the issues.” Id. (citation and quotation marks omitted); see also Fla. R. Civ. P. 1.510(c) (“The motion [for summary judgment] shall state with particularity the grounds upon which it is based and the substantial matters of law to be argued-” (emphasis added)).

In Williams, we rejected the appellee’s argument that its “single conclusory statement regarding liability, contained in a footnote of a nineteen-page memorandum of law devoted solely to the statute of limitations issue, sufficed as a separate ground for its motion for summary judgment.” Williams, 927 So.2d at 1093. We are compelled to reach the same result as we did in Williams. Gordon Hargrove explicitly limited its motion for summary judgment to two grounds and then raised the additional issue of standing in a single, conclusory footnote comprised of one sentence without a single legal citation. This footnote did not provide Alexopoulos adequate notice that she would be required to offer record evidence to refute the allegations of lack of standing and to offer a legal rebuttal as to this issue. We conclude that standing was not sufficiently raised by Gordon Hargrove, the moving party, in its motion for summary judgment. Therefore, the trial court erred in relying on this ground in entering summary judgment.

Additionally, the record reveals that Gordon Hargrove asserted fourteen affirmative defenses to Alexopoulos’s claims but none suggested or otherwise raised lack of standing. “[L]ack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver.” Phadael v. Deutsche Bank Trust Co. Ams., 83 So.3d 893, 895 (Fla. 4th DCA 2012). Gordon Hargrove’s failure to raise lack of standing as an affirmative defense thus provides additional grounds for reversing the summary judgment.

Finally, Alexopoulos has also appealed the trial court’s post-judgment order finding Gordon Hargrove to be entitled to attorneys’ fees but not setting the amount. Because we are reversing the summary judgment, this issue regarding attorneys’ fees is moot. However, mootness aside, orders awarding attorneys’ fees are only final and therefore appealable once the trial court has set the amount of those fees. An order merely finding entitlement to attorneys’ fees is a non-final, non-appealable order. See, e.g., Winkelman v. Toll, 632 So.2d 130, 131 (Fla. 4th DCA 1994) (“[Ojrders granting attorney’s fees without determining amount are not ripe for appellate review.”).

Reversed and remanded.

WARNER, J„ and BLANC, PETER D„ Associate Judge, concur.


author: PER CURIAM.

text:
    Drew C. HARTLEY, Petitioner, v. EIGHTH JUDICIAL COUNTY COURT OF UNION COUNTY, Respondent.
    No. 1D12-4875.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2013.
    Rehearing Denied March 27, 2013.
    Drew C. Hartley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Donna La Plante, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied without prejudice to the petitioner raising these arguments in case number 1D12-5102.

CLARK, WETHERELL, and MAKAR, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    STATE of Florida, Appellant, v. Edward L. GIBSON, Appellee.
    No. 2D11-5818.
    District Court of Appeal of Florida, Second District.
    Feb. 13, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Gina M. Girardot, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Chief Judge.

The State appeals an order suppressing a witness’s out-of-court and in-court identifications of Gibson. Gibson was charged with grand theft and resisting a merchant’s employee as the result of the theft of two televisions from a Walmart. We convert this direct appeal to a petition for writ of certiorari. Because the trial court departed from the essential requirements of the law in failing to consider the appropriate factors to determine whether the impermissibly suggestive identification procedure should result in the suppression of the out-of-court and in-court identifications, we grant the petition, quash the order, and remand for further proceedings.

Jurisdiction

The State filed a notice of appeal asserting that it was appealing an order suppressing evidence before trial. However, Florida Rule of Appellate Procedure 9.140(c)(1)(B), only allows direct appeal by the State of orders suppressing “evidence obtained by search and seizure.” The challenged photo pack and identification were not obtained by search and seizure. Instead, review of an order suppressing both an in-court and out-of-court identification is by certiorari. See State v. Dorsey, 5 So.3d 702, 708 (Fla. 2d DCA 2009); see also State v. Styles, 962 So.2d 1031, 1032 (Fla. 3d DCA 2007) (reviewing by certiorari an order suppressing an out-of-court identification based on a photographic array); State v. Gomez, 937 So.2d 828, 830 (Fla. 4th DCA 2006) (treating the State’s appeal of an order suppressing in-court and pretrial identifications as a petition for writ of certiorari). Thus, we treat the State’s appeal as a petition for writ of certiorari. See State v. Pettis, 520 So.2d 250, 253 (Fla.1988); Dorsey, 5 So.3d at 703.

Merits

Gibson sought to suppress witness Adrian Morris’s identification of Gibson as the person who committed the theft and resisted a Walmart employee. At the suppression hearing Adrian Morris and Deputy George Moffett testified. On December 24, 2010, Morris, an assistant manager for Walmart, saw loss prevention officer Donna Mckenzie and an African-American male just outside the doors of the store; they were fighting over two television sets in a shopping cart. Morris saw them from as far as twenty yards to as close as about seven feet as Morris approached. It was a well-lit area. At one point the man looked up and Morris made eye contact with him. The man then gave up the struggle and jumped into a white pickup truck that drove away. Morris got the license plate number. During his testimony Morris referred to focusing his attention on the man for fifteen to twenty minutes, but Morris later clarified that it was fifteen to twenty seconds.

When Deputy Moffett arrived at the scene, Morris described the suspect as an African-American man who was thirty-five to forty-five years old. The man was wearing a hat and sunglasses. Morris gave the deputy the license plate number, and the deputy testified that he believed that the truck was registered to Gibson’s father. Deputy Moffett reviewed the surveillance video and could not see the suspect’s face but could see his build and stature. After conducting a search in the DAVID database from the DMV, Deputy Moffett told Morris that he observed a photograph that closely resembled the suspect that Deputy Moffett saw in the surveillance video. The deputy told Morris that he would compile a photo pack and return at a later date.

Two days later, Deputy Moffett showed Morris a photo pack with six photos. Gibson’s photo was in the array. The deputy instructed Morris that the suspect may or may not be included in the photo pack and not to identify anyone unless Morris was 100 percent sure. Morris testified that he viewed the photo pack within twenty-four hours of the incident, that he was not influenced to pick the photo that he picked, and that as soon as he saw Gibson’s photo he recognized him.

The trial court found that the photo pack identification procedure was imper-missibly suggestive for two reasons. First, the deputy told Morris that based on the deputy’s research he found a photo of someone who closely resembled the perpetrator in the surveillance video and that the deputy would prepare a photo pack and return. This suggested to Morris that the photo pack would contain a photo of the person whom the deputy believed closely resembled the perpetrator seen in the video. Second, the trial court found that Gibson’s photo was the only one that depicted a middle-aged person and that the other five individuals all appeared to be younger than thirty. The trial court found that only one photo in the photo pack fit the description of an African-American man between thirty-five and forty-five years old. Coupled with Morris being conditioned to believe the perpetrator’s photo would be in the photo pack, the trial court found the procedure impermis-sibly suggestive. The court suppressed the out-of-court identification and any in-court identification Morris might make in the future.

We must review the trial court’s ruling based on the standards for certiora-ri review. The State has a limited right to file a petition for writ of certiorari to challenge a pretrial ruling. State v. Storer, 920 So.2d 754, 758 (Fla. 2d DCA 2006) (citing State v. Pettis, 520 So.2d 250 (Fla.1988)). This is because double jeopardy limits the right of the State to obtain adequate posttrial relief. Id. However, it is insufficient to show that a trial court’s ruling is incorrect; rather, the State must show that the trial court departed from the essential requirements of the law. State v. Dorsey, 5 So.3d 702, 706 (Fla. 2d DCA 2009); State v. Smith, 951 So.2d 954, 957 (Fla. 1st DCA 2007).

A trial court must apply the following two-pronged test to determine whether to suppress an out-of-court identification: “(1) whether the police used an unnecessarily suggestive procedure and (2), if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.” Dorsey, 5 So.3d at 705; see also Fitzpatrick v. State, 900 So.2d 495, 517-18 (Fla.2005). When considering the totality of the circumstances to evaluate the likelihood of misidentification, the trial court must consider the following factors: “(1) the opportunity of the witness to view the criminal at the time of the crime, (2) the witness’s degree of attention, (3) the accuracy of the witness’s prior description of the criminal, (4) the level of certainty demonstrated by the witness at the confrontation, and (5) the length of time between the crime and the confrontation.” Dorsey, 5 So.3d at 705; see also Fitzpatrick, 900 So.2d at 518. The determination of whether the procedure was unnecessarily suggestive “is wholly separate and apart from the reliability of the identification.” Styles, 962 So.2d at 1034.

With respect to an in-court identification, when law enforcement obtains a pretrial identification by an impermissibly suggestive procedure, “an ‘in-court identification may not be admitted unless it is found to be reliable and based solely upon the witness’ independent recollection of the offender at the time of the crime, uninfluenced by the intervening illegal confrontation.’” Dorsey, 5 So.3d at 706 (quoting Edwards v. State, 538 So.2d 440, 442 (Fla.1989)). To gauge the reliability of an in-court identification, the trial court must consider the following factors:

“the prior opportunity the witness had to observe the alleged criminal act; the existence of any discrepancy between any pretrial lineup description and the defendant’s actual description; any identification prior to the lineup of another person; any identification by picture of the defendant prior to the lineup; failure to identify the defendant on a prior occasion; any time lapse between the alleged act and the lineup identification; and any other factors raised by the totality of the circumstances that bear upon the likelihood that the witness’ in-court identification is not tainted by the illegal lineup.”

Fitzpatrick, 900 So.2d at 519 (quoting Edwards, 538 So.2d at 443). The State has the burden to demonstrate an independent source for the in-court identification. Dorsey, 5 So.3d at 706.

In Dorsey, this court recognized that the trial court may have reached an incorrect result in applying the factors concerning the likelihood of misidentification for the out-of-court identification. 5 So.3d at 706. However, this court determined that the State failed to show that the trial court had applied the wrong law in excluding the out-of-court identification and was unable to conclude that the trial court departed from the essential requirements of the law. Id. In contrast, this court also determined in Dorsey that the trial court did depart from the essential requirements of law regarding the suppression of the in-court identification. The trial court had only stated that the impermissibly suggestive lineup tainted any further in-court identification. Id. at 707. The trial court departed from the essential requirements of law because it failed to “conduct a separate analysis of the factors to be considered in gauging the reliability of an in-court identification when the police have obtained a pretrial identification by means of an unnecessarily suggestive procedure.” Id.

Here, we cannot say that the trial court departed from the essential requirements of the law in determining that the procedure used for the out-of-court identification was unnecessarily suggestive. The trial court based its determination on (1) the deputy’s statements that after he conducted DAVID research he found a photo of someone who closely resembled the person in the surveillance video and he would return to Morris with a photo pack, coupled with (2) the fact that Gibson’s photo was the only one that depicted a middle-aged person fitting Morris’s description of a man between thirty-five and forty-five years old.

With respect to the second prong of the test regarding an out-of-court identification, however, the trial court failed to consider the factors and find that there was a substantial likelihood of misidentifi-cation. Although in making its oral ruling the trial court discussed some of the mis-identification factors with respect to cases that the parties cited in support of their respective positions, the trial court never made a finding in the present case that there was a substantial likelihood of mis-identification in addition to an impermissi-bly suggestive procedure. Therefore, we conclude that the trial court departed from the essential requirements of the law in suppressing the out-of-court identification.

As to the suppression of the in-court identification, the trial court only stated at the end of the suppression hearing that it was suppressing both the photo pack and the in-court identification. The court did not make any findings or give any reason for its ruling. Nothing indicates that the court made the required analysis of the reliability factors before suppressing the in-court identification; thus, the trial court departed from the essential requirements of law. See Dorsey, 5 So.3d at 707. Therefore, we grant the petition for writ of certiorari, quash the order suppressing evidence, and remand for further proceedings.

Petition granted, order quashed, and remanded.

VILLANTI and CRENSHAW, JJ., Concur.

      . From our review of the record, it appears that some of the individuals depicted in the photo pack were in their late teens or early twenties.


text:
    Elma ROLAND, Appellant, v. David ROLAND, an alleged incapacitated person, Appellee.
    No. 4D12-474.
    District Court of Appeal of Florida, Fourth District.
    Feb. 13, 2013.
    Rehearing Denied March 27, 2013.
    Steven K. Schwartz of Steven K. Schwartz, P.A., Aventura, and Ronald J. Isriel of Isriel, Ponzoli, Keller & Simpson, P.A., Miami, for appellant.
    Scott A. Weiss of Selzer & Weiss, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Rothman v. Rothman, 93 So.3d 1052 (Fla. 4th DCA 2012).

STEVENSON, CIKLIN, JJ„ and MORGAN, DAVID C., Associate Judge, concur.


text:
    Joy HINZMAN, Appellant, v. WINTER HAVEN FACILITY OPERATIONS LLC d/b/a Consulate Health Care of Winter Haven and Gallagher Bassett Services, Inc., Appellees.
    No. 1D12-2382.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.
    Rehearing Denied March 28, 2013.

      Jeffrey E. Appel of the Appel Law Group, P.A., Lakeland, and E. Taylor Davidson of DiCesare, Davidson & Barker, P.A., Lakeland, for Appellant.
    Herbert A. Langston, Jr., and James M. Hess of Langston, Hess, Augustine, Hus-sey & Moyles, P.A., Maitland, for Appel-lees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals an order of the Judge of Compensation Claims (JCC) in which he ruled that the “5 days” in section 440.13(2)(f), Florida Statutes (2011), means business days rather than calendar days. We reverse this ruling because the plain meaning of the statute reveals the Legislature’s intent to limit to five consecutive days, or calendar days, the time period within which a “carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician” in response to an injured employee’s written request for a change of physician. See Germ v. St. Luke’s Hosp. Ass’n, 998 So.2d 576, 578 (Fla. 1st DCA 2008) (“If the statute’s plain language is clear and unambiguous, courts should rely on the words used in the statute without involving rules of construction or speculating as to the legislature’s intent. Courts should give statutory language its plain and ordinary meaning, and may not add words that were not included by the legislature.” (citations omitted)). Seen another way, because the Legislature specified “business days” elsewhere in section 440.13, canons of statutory interpretation (particularly the presumption of consistent usage) dictate that the Legislature’s use of the unmodified term “days” here refers to consecutive or calendar days. Although the Legislature used the terms “calendar days” and “consecutive days” in other sections of chapter 440, the wording of those statutes, unrelated to the topic of this statute (permitting injured employees to request “one change of physician during the course of treatment for any one accident” regardless of medical necessity for such), does not affect the analysis of the statute in question here. Policy concerns asserted by the Employer/Carrier here are more properly directed to the Legislature, to address or not, as it would choose. Cf. Staffmark v. Merrell, 43 So.3d 792, 796 (Fla. 1st DCA 2010) (declining to allow policy considerations to control outcome of case, and stating, “[t]hese policy arguments should be directed to the Legislature, not this court”).

REVERSED and REMANDED for further proceedings in accordance with this opinion.

CLARK, WETHERELL, and MAKAR, JJ., concur.


author: PER CURIAM. MAKAR, J.,

text:
    Steven Michael PALMER, Former Husband, Appellant, v. Kimberley H. PALMER, Former Wife, Appellee.
    No. 1D11-5663.
    District Court of Appeal of Florida, First District.
    Feb. 18, 2013.
    Rehearing Denied April 1, 2013.

      Sharon H. Proctor of Proctor Appellate Law, PA, Lake Saint Louis, MO, for Appellant.
    Justin D. Jacobson of the Law Office of Richard M. Knellinger, P.A., Gainesville, for Appellee.
   PER CURIAM.

The former husband, Steven Michael Palmer, appeals an order enforcing the supplemental final judgment by requiring him to pay the former wife, Kimberley H. Palmer, a stipulated sum of money for his failure to obtain refinancing on the marital home within the time agreed to by the parties. He contends that the provision of the marital settlement agreement requiring him to compensate the former wife for delays in the refinancing amounts to a penalty and that it cannot be enforced.

A contract provision setting damages for delay in performance is not void as a matter of law. See Public Health Trust of Dade County v. Romart Const., Inc., 577 So.2d 636 (Fla. 3d DCA 1991) (concluding that the defendant had waived its right to challenge a liquidated damages provision setting a per diem amount of damages for delay, by failing to challenge the validity of the agreement in an affirmative defense). At most, a provision such as this would render the contract voidable.

We need not decide whether the provision at issue is a valid liquidated damages clause or whether it is invalid as a penalty, because an agreement that is merely voidable is not subject to collateral challenge once it has been incorporated into the final judgment. See Wells v. Wells, 832 So.2d 266 (Fla. 4th DCA 2002) (declining to consider an argument raised for the first time in a contempt proceeding that a provision of the marital settlement agreement was unconscionable); Miller v. Preefer, 1 So.3d 1278 (Fla. 4th DCA 2009) (declining to consider a collateral challenge to a judgment incorporating an agreement that contained an allegedly illegal covenant not to compete, on the ground that the alleged illegality merely rendered the agreement voidable). Here, the former husband did not appeal the judgment nor did he seek to modify or vacate it. Instead, he attempted to raise the issue as a defense to an action to enforce the judgment by contempt. Because the marital settlement agreement is merely voidable, the judgment incorporating the agreement is no longer subject to collateral challenge.

We find no error in the judgment as to any of the other issues the former husband has raised on appeal. Accordingly, we affirm.

PADOVANO and RAY, JJ., concur.

MAKAR, J., concurring in part, dissenting in part.

MAKAR, J.,

concurring in part, dissenting in part.

At issue is whether a court in a divorce proceeding must enforce an illegal penalty clause contained in a supplemental agreement to which both parties agreed. The former husband, who raises a number of other issues, argues that he should not be required to pay the penalties to which he agreed as formalized in the supplemental judgment below. I concur in affirmance as to the other issues raised, but would reverse and remand with instructions to determine actual damages for the former husband’s breach.

I. Background

The parties’ marriage was dissolved in a final judgment entered on May 30, 2008. One part of the mediation agreement, which was incorporated in the final judgment, related to the sale of the marital home: the former husband would retain sole ownership but pay the former wife half of the home’s equity. Pertinent to this appeal, the agreement also required the former husband to “refinance the mortgage and home equity loan on the marital home within 90 days” and the former wife would concurrently provide a special warranty deed.

When the former husband failed to complete the refinancing, the former wife moved for the former husband to comply with this requirement and for contempt if he did not do so in a timely manner. Just •prior to the April 5, 2010 hearing on the matter, the parties resolved their dispute and reduced it to writing in a supplemental agreement. The former husband agreed to either refinance the home or ensure the former wife had no liability on the line of credit by June 5, 2010. The settlement agreement also provided: “If [former husband] does not have [former wife] removed from liability on the HELOC on or before June 7, 2010, he agrees to pay a penalty in the amount of $1,500.00 per week, or $214.28 per day.” The prevailing party would be entitled to attorneys’ fees if a dispute arose under the supplemental agreement, which was eventually submitted to the court. A supplemental judgment was entered on June 7, 2010.

The former husband undertook to refinance the home, but was unsuccessful. He eventually paid in full the home equity line of credit on October 26, 2010, which was approaching five months after the refinancing deadline of June 7, 2010. The former wife then moved to enforce the supplemental final judgment, seeking an award against the former husband in the amount of $31,285.68 in accrued penalties (plus interest and attorneys’ fees) for the time it took the former husband to pay off and remove her from the line of credit. The former husband argued the penalties were unenforceable, but the trial court found this argument “disingenuous” and entered judgment in the amount of $29,999.20, which is the daily penalty at the rate of $214.28 for 140 days, plus interest and attorneys’ fees. This appeal ensued.

II. Analysis

The penalty clause in the supplemental agreement imposing $1500 weekly fines is invalid under Florida law, which has long made such monetary sanctions verboten. While our state jurisprudence allows the imposition of liquidated damages as a remedy for breaching an agreement, it is. deemed unlawful to compel the payment of penalties for having done so. At first blush, a court should not enforce this aspect of the parties’ settlement agreement given its illegality.

A countervailing point made by the former wife, however, is that the former husband agreed to the penalties, which were incorporated in the supplemental final judgment. He did not file an appeal from the supplemental judgment, choosing instead to seek review now that the judgment has been enforced against him. See Wells v. Wells, 832 So.2d 266, 269 (Fla. 4th DCA 2002) (noting that spouse “did not challenge this provision either before or after it was incorporated into the final judgment”). In Florida, it is a general principle that a collateral challenge to the terms incorporated into a judgment is impermissible, primarily to ensure the finality of judicial proceedings; exceptions exist under Florida Rule of Civil Procedure 1.540, none of which are at issue here. See Williams v. Williams, 939 So.2d 1154, 1157 (Fla. 2d DCA 2006) (discussing the rule’s application and that it is not designed to relieve parties from “tactical mistakes”). The former wife asserts that if the former husband felt the terms of settlement were such an onerous bargain he should have sought to void them via a direct appeal, which he failed to do.

The former husband here made a bad bargain; one might say it is unfair or unreasonable for him to have to pay such a hefty sanction for missing the agreed-upon deadline. But his case is not about a bad bargain that courts are unwilling to undo or rewrite. As the Second District in Williams noted, “[e]ven if the court is correct that the refinancing provision is unfair to the Husband, this does not provide a legal basis for the court to rewrite the parties’ agreement or to set it aside.” Id.) see also Wells, 832 So.2d at 269 (upholding requirement that husband transfer his interest in marital home if he made child support payment late).

Rather, the question presented is whether the enforcement of the illegal penalty clause in the settlement agreement can be collaterally attacked as contrary to public policy. In Williams, the former wife and husband both sought to challenge the enforcement of a mediation agreement to which they had agreed and that had been incorporated in a final judgment. In the enforcement action, the former husband made a collateral attack on the judgment, arguing it was unfair and unreasonable as to his interests. The Second District, in reversing the trial court’s modifications to the terms of the parties’ agreement, stated: “Bad domestic bargains — meaning unfair or unreasonable property and monetary settlement agreements — are nevertheless enforceable so long as they are knowing, voluntary and not otherwise against public policy.” Williams, 939 So.2d at 1157 (quoting Petracca, v. Petracca, 706 So.2d 904, 911 (Fla. 4th DCA 1998)) (emphasis added). The italicized language recognizes an exception to enforcement, even in a collateral proceeding, where the “domestic bargain” is contrary to the “public policy” of the state.

What are the parameters of a public policy exception? At one extreme, a court would not enforce an agreement, even if knowingly and voluntarily entered by the former husband, requiring him to chop off his ring finger for failing to comply with the settlement; to do so would be against public policy, even in a collateral proceeding. But what about purely economic activities such as price-fixing agreements or penalty clauses? See generally Restatement (Second) of Contracts § 178 (1981). In the commercial context, courts have been willing to deny relief where a judgment shelters an otherwise illegal restraint of trade. See Miller v. Preefer, 1 So.3d 1278, 1282-83 (Fla. 4th DCA 2009) (finding that “settlement agreement, even though it contained an illegal covenant restraining trade, essentially became sheltered within the judgment”). In the family law context, one court refused to invalidate a “presumptively valid” final judgment allowing a former husband to contract away his child support obligations (which is against public policy), but noted the former wife can remedy the situation by filing a petition to modify the final judgment. Dep’t of Health & Rehabilitative Servs. v. Morley, 570 So.2d 402, 404 (Fla. 5th DCA 1990) (“[N]o contract or order can divest a court of its authority to modify child support.”).

No court in Florida has addressed whether the enforcement of an illegal penalty clause in a marital settlement agreement incorporated into a judgment can be collaterally attacked. Courts around the country are split. For instance, in Jessen v. Jessen, 810 P.2d 987, 992 (Wyo.1991), the court held that a post-divorce modification that imposed “late charges” on a former husband for late child support payments was an unenforceable penalty “as a matter of law and public policy.” It did so in the context of a collateral challenge. Id. at 988-90. In Willner v. Willner, 145 A.D.2d 236, 538 N.Y.S.2d 599 (N.Y.App.Div.1989), the appellate court held that payment of an additional $110 per week after notice of default was an unenforceable penalty. Id. at 600 (“This is a classic case of a purported ‘liquidated damages’ clause. In reality, it constitutes a punitive measure which, as a matter of law, is an unenforceable penalty.”). Willner too was a collateral challenge to the enforcement of a post-dissolution modification to the parties’ original settlement. Id. at 600-01. This rule of law was recently reaffirmed in Chumsky v. Chumsky, 64 A.D.3d 1156, 881 N.Y.S.2d 774 (N.Y.App.Div.2009), which stated that where “a stipulation provides for an amount to be paid as a consequence of a breach that is plainly or grossly disproportionate to the probable loss, the provision calls for a penalty and will not be enforced.” Id. at 775 (internal citations omitted).

To the contrary are examples from Mississippi and Connecticut. In Mississippi, marital settlement agreements are treated as “quasi-contracts” and may include penalty clauses that would otherwise be unenforceable in a commercial contract. Varner v. Varner, 666 So.2d 493, 496-97 (Miss.1995). In Varner, the Mississippi Supreme Court held that “there is more at work than general contract law” in marital settlement agreements; thus, a ten percent “penalty” could be enforced over the former husband’s objection. Id. In Connecticut, a sharply divided court in Dougan v. Dougan, 114 Conn.App. 379, 970 A.2d 131 (2009), enforced a provision requiring the former husband to pay $750,000 (ten percent of the principal due) because he was twelve days late in making a $7.5 million payment to his former wife (he had the use of the funds for the year prior to payment being due). The lengthy majority, concurring, and dissenting opinions lay out the competing views on the topic; the concurrence noted that although “the provision at issue constitutes a penalty, ... competing public policies ... outweigh those at work in commercial cases,” thereby allowing the enforcement of penalties in marital settlement cases. Id. at 142 (Borden, J., concurring).

Given this split of authority, and having no definitive Florida precedent as a guide, it is unclear on which side of the debate between “finality of judgments” and “penalty clauses violate public policy” we should fall. While Florida courts justifiably have been very hesitant to allow collateral attacks on final judgments, they recognize a public policy exception that provides an opening to challenge invalid penalty clauses such as the onerous one here. Courts in other states that prohibit enforcement in the marital context seem more consistent with Florida’s public policy against penalty clauses. Those states that allow enforcement of penalty clauses in the marital context, but not in the commercial business context, create an anomaly: why should the law protect sophisticated businesspersons (who deal with contracts and negotiations regularly) from penalty clauses, but not marital litigants (who may have little or no business background or skills)? In addition, though not the case here, marital settlement agreements (and the final judgments that shelter them) often involve pro se litigants who have no knowledge of penalty clause jurisprudence (i.e., that penalty clauses are invalid and unenforceable). It is highly unlikely they will challenge the terms of a settlement agreement they just entered via an appeal; instead, the penalty clause issue will arise — as occurred here — only when enforcement of the clause is sought, making the availability of a collateral challenge important in this context. Given these factors and that our public policy is against, penalty clauses, their enforcement in the marital context ought to be prohibited and subject to collateral attack.

It bears emphasis that Florida law explicitly allows the use of a liquidated damages clause — if “the use of the provision does not impose a penalty on the defaulting party for noncompliance with the contract and only if the stipulated amount of the damages is reasonable.” Philip J. Pa-dovano, Florida Civil Practice § 27.7 (2012 ed.). Nothing prohibited the former spouses from agreeing to liquidated damages as part of their settlement agreement.

III. Conclusion

Summing up, I would reverse and not permit enforcement of the penalty clause. But I would not leave the former wife empty-handed. On remand the trial court would, after hearing from the parties, decide upon an appropriate amount of actual damages that is reasonable under the circumstances to compensate the former wife for the former husband’s dilatory actions along with attorneys’ fees.

      . See Crosby Forrest Prods., Inc. v. Byers, 623 So.2d 565, 567 (Fla. 5th DCA 1993) ("A contract term which provides that a party must pay a penalty for breaching a contract is unenforceable.”).
      A penalty is a sum named, which is disproportionate to the damages [sic] which could have been anticipated from breach of the contract, and which is agreed upon in order to enforce performance of the main purpose of the contract by the compulsion of this very disproportion. It is held in terro-rem over the promisor to deter him from breaking his promise.

        Id. (quoting 5 Samuel Williston & Walter H.E. Jaeger, A Treatise on the Law of Contracts § 776 (3d ed. 1961)).

      . Determining an appropriate amount of liquidated damages on remand is somewhat untenable; it puts the trial court in the awkward position of speculating what amount the parties might have stipulated to at the time they made their agreement before the breach, and further determining that the amount "is not grossly disproportionate to the damages that could reasonably be expected to flow from the breach.” See Padovano, supra, at § 27.7 (“Whether a stipulated amount of damages is reasonable is a matter that must be determined in light of the circumstances of the case. Because the validity of a liquidated damages clause depends in part on the reasonableness of the stipulated amount, the issue is one that must be determined by the court.”) (footnote and citations omitted).


author: WARNER, J.

text:
    OLEN PROPERTIES CORP. and Olen Residential Realty Corp., Petitioners, v. Melissa WREN, Respondent.
    No. 4D12-1871.
    District Court of Appeal of Florida, Fourth District.
    Feb. 20, 2013.

      Joel D. Kenwood and Robert Rivas of Sachs Sax Caplan, P.L., Boca Raton, for petitioners.
    Philip M. Burlington and Adam J. Richardson of Burlington & Rockenbach, P.A. and Edrick E. Barnes of Liggio Benrubi, P.A., West Palm Beach, for respondents.
   WARNER, J.

Petitioners seek review of the trial court’s order denying their motion to enjoin further prosecution of respondent’s motion to enforce a settlement agreement. Respondent sought to compel performance of petitioner’s settlement obligations, and sought damages for the failure of performance. To the extent that respondent demanded damages caused by the breach of petitioners’ obligations, we grant the petition.

Petitioners, Olen Properties Corporation and Olen Residential Realty Corp., own various apartment complexes in Palm Beach County. In 2006, tenants filed a class action lawsuit against petitioners claiming that it was collecting unlawful charges against tenants in early cancellation of lease cases. Class representatives entered into a settlement agreement with petitioners. In the settlement, petitioners set up a fund for payment of claims of tenants, administered by a Claims Administrator. Each tenant could make a claim for the contested charges. In addition, and to the extent that the fund was not exhausted, tenants could make a claim for statutory damages. The settlement provided for notice to the class members and permitted the filing of claims up to sixty days after the approval of the settlement agreement. Petitioners also agreed to notify credit reporting agencies to remove any contested charges from each class member’s credit report. In return for the settlement provisions, petitioners received a release of claims from the class members which included any claim for damages for slander of credit. The trial court approved the settlement, reserving jurisdiction to enforce the terms of the agreement.

Two years later, respondent Melissa Wren, a former tenant of petitioners and a member of the class, filed a motion to enforce the settlement agreement and for sanctions against petitioners. She claimed that petitioners had never notified the credit agencies to remove the contested charges and was still reporting to them unpaid charges on her account. This was damaging her credit, causing her to pay higher deposits on rental properties and more in interest. In addition, she alleged that she has suffered stress and anxiety. She requested that the court “grant her Motion to Enforce the Settlement and Sanctions in the amount of damages she suffered in credit impairment,” in addition to attorney’s fees in accordance with the terms of the settlement agreement.

Petitioners moved to enjoin further prosecution in the trial court of respondent’s claims, which motion the trial court denied. Petitioners then filed for certiora-ri in this court, claiming that the trial court was exceeding its retained jurisdiction by considering the respondent’s motion to enforce the settlement as it pertained to respondent’s claim for damages.

Where a party claims that the circuit court acted in excess of its jurisdiction, certiorari is the proper method of challenging the court’s jurisdiction. See W.C. Riviera Partners, LC. v. W.C.R.P., LC., 912 So.2d 587, 589 (Fla. 2d DCA 2005). Petitioners claim that the court exceeded its jurisdiction in considering the respondent’s claim for damages for credit impairment under the guise of a motion to enforce the settlement agreement. We agree.

As did the Second District in W.C. Riviera Partners, we find Paulucci v. General Dynamics Corp., 842 So.2d 797, 803 (Fla.2003), dispositive on this issue:

[W]hen a court incorporates a settlement agreement into a final judgment or approves a settlement agreement by order and retains jurisdiction to enforce its terms, the court has the jurisdiction to enforce the terms of the settlement agreement.... However, the extent of the court’s continuing jurisdiction to enforce the terms of the settlement agreement is circumscribed by the terms of that agreement. Thus, if a party is claiming a breach of the agreement and is seeking general damages not specified in the agreement, the appropriate action would be to file a separate lawsuit.

We applied Paulucci in Boca Petroco, Inc. v. Petroleum Realty I, LLC, 993 So.2d 1092 (Fla. 4th DCA 2008), where we held that the trial court did not have jurisdiction under a settlement agreement to award damages for breach of a settlement agreement’s provisions. We noted that Paulucci further explained the distinction between enforcement of an agreement and breach of that agreement:

“By enforcing a contract, it is assumed that the contract has continuing validity and a party is ordered to comply with its terms. A breach of contract action presupposes that the contractual relationship is at an end because of a material breach by one party and damages are sought by the non-breaching party as a substitute for performance.”

Id. at 1095 (quoting Paulucci, 842 So.2d at 803).

Respondent sought to enforce the provision requiring petitioners to remove from the class members’ credit reports the charges contested in the class action. This was an affirmative obligation on petitioners under the agreement. To the extent that the motion to enforce demanded that relief, it is within the trial court’s continuing jurisdiction to enforce the agreement.

To the extent, however, that respondent sought “sanctions” in the form of damages for impairment of respondent’s credit and for respondent’s stress and anxiety, these are all damages which might have been incurred as a result of the breach of petitioners’ obligation to remove the contested charges from respondent’s credit report. Merely calling it a sanction when it is a claim for damages does not provide jurisdiction in the trial court.

Because the respondent seeks damages for the breach, the trial court exceeds its jurisdiction. We thus grant the writ and quash the trial court’s order as it pertains to any claim for damages (“sanctions”) as a result of the failure of petitioners to comply with the terms of the settlement agreement.

STEVENSON and TAYLOR, JJ., concur.

      . The court has sua sponte changed the style of this appeal to reflect the correct parties as petitioners and respondent. The class representatives are not parties to this petition.


text:
    Virgil SATCHWELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5547.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Virgil Satchwell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The emergency petition for writ of prohibition is denied on the merits. Petitioner’s motion for order to show cause is denied as moot.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    David Russell POSEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5246.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    David Russell Posey, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED as moot.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Anthony FLINTROY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2813.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    Anthony Flintroy, pro se, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence rendered on January 19, 2012, in Escambia County Circuit Court case numbers 2009-CF-003113-A and 2009-CF-003114-A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    George HILL, Sr., Appellant, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Appellee.
    No. 1D11-6653.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2013.
    George Hill, Sr., pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Carrie McNamara, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

George Hill, Sr., Appellant, filed a petition for writ of mandamus seeking to compel the Department of Corrections to follow its own rules governing missing inmate property. Three categories of property are at issue: legal documents, a bank book, and photographs. The circuit court ruled that Appellant’s claim is time-barred under section 95.11(5)(f), Fla. Stat. (2009), as to the legal documents and that it is subject to dismissal for failure to exhaust administrative remedies as to the bank book and photographs. We agree with the circuit court’s ruling concerning the photographs and affirm that portion of the order. We are satisfied, however, that Appellant exhausted his administrative remedies concerning the bank book and that his claim concerning the loss of his legal documents did not accrue until at least January 2010, less than a year before the filing of his petition for writ of mandamus. We, therefore, reverse the dismissal of the claims regarding the bank book and legal documents and remand for further proceedings.

AFFIRMED in part; REVERSED in part; and REMANDED.

DAVIS, RAY, and SWANSON, JJ., concur.


author: THOMAS, J. WOLF, J.,

text:
    Demetrice Armicle McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6875.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.

      Nancy A. Daniels, Public Defender, Diana L. Johnson and Glen P. Gifford, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant raises three issues on appeal. He argues the trial court erred by: 1) not holding a hearing pursuant to Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); 2) failing to timely renew the offer of assistance of counsel; and 3) admitting a written statement as a past recollection recorded when the writer did not confirm that she was under oath at the time the statement was written, and neither recalled whether an officer was present, nor whether she wrote a statement at all. We affirm as to the first two issues without further comment. With respect to the third issue, we affirm for the reasons explained below.

Factual Background

Appellant was charged with felony battery arising out of a domestic violence incident in which he physically assaulted his then girlfriend. The victim attempted to have the charges dropped before the trial, but the State decided to pursue its prosecution. The State subsequently requested the court to declare the victim a hostile witness.

During a hearing to address the State’s motion, the victim testified that she could not remember whether she completed a written statement in the presence of law enforcement but, when shown the statement, admitted the signature on the document was hers. She reiterated she could not remember if she had completed the statement in the presence of law enforcement. The State then showed victim pictures of herself and, when asked if law enforcement took the pictures when they came to her house, she replied that she was not sure. She also admitted she wanted the charges dropped, and that she did not want to be there. When asked whether she discussed her testifying and dropping the charges in jail phone calls with Appellant, the victim responded, “I plead the Fifth,” and insisted she did not have to answer. The court informed the victim that she did not have the right to remain silent as to the question and could be held in civil contempt and jailed until she agreed to testify. When the State repeated the question, the victim again replied that she was “not sure.” The victim also admitted she had tried to drop the charges against Appellant, but denied that he had ever asked her to do so. When informed of the existence of recordings of the conversations and warned about the penalty for perjury, the victim responded, “I can’t remember,” when asked the question again. The trial court granted the State’s motion to declare the victim a hostile witness.

As she did during the hearing, at trial, the victim testified she was “not sure” whether law enforcement came to her apartment in June 2011. The victim also testified that she could not remember whether she completed a written statement for law enforcement. After being shown the statement and given a chance to read it, she admitted that the signature on the statement was hers. “I can’t remember” was also her response to questions about whether she signed the statement in the police officer’s presence, how long after police arrived that she gave her statement, and whether she was placed under oath when she gave the statement. She gave the same response to each of the prosecutor’s questions about what happened on the night in question. She admitted, however, that she was the person in the pictures taken by law enforcement. Finally, when asked, “This occurred in Es-cambia County; correct?” she replied, “Yes.”

The investigating officer testified that, upon arrival, he observed that the victim was “very upset ... fearful,” and “had been crying off and on, you could tell from her eyes.” She had swelling on the left side of her face and some redness around her neck, and complained of pain in various parts of her body. The officer also testified that the victim completed a written statement during the 45 minutes he was at the scene. He watched the victim write the statement and denied giving her any facts or suggesting any information. He confirmed the victim was under oath at the time she wrote the statement. After the officer identified the statement, the State asked that it be admitted into evidence.

During the ensuing bench conference, the court stated that the paper statement itself was not admissible because it was not being offered by the adverse party, but that it could be published to the jury. Appellant objected, arguing that the victim “never confirmed” the statement or any of the allegations in it, “so it would just be hearsay when [the officer] reads it.” The court replied that it was not necessary for the victim to acknowledge the contents of the statement when it is past recollection recorded, the victim identified her signature on the document, and the officer testified the statement was given within 45 minutes of his arrival and confirmed it was given under oath. Also, the court explained, the victim testified she did not remember anything about what happened. The court granted the State’s request and the officer read the statement to the jury, which included the victim’s description of Appellant’s physical assault on her. He also testified that what he just read was the statement the victim wrote in his presence and that she wrote it of her own accord, while under oath.

Appellant argues that the trial court reversibly erred by allowing the statement to be published to the jury under the “past recollection recorded” exception to the hearsay rule, because the victim did not testify that she wrote the statement or that the statement correctly represented her knowledge or recollection at the time of making the statement. As explained below, we disagree.

Legal Analysis

A trial court’s ruling on the admissibility of evidence will not be disturbed absent a finding that the trial court abused its discretion. Carpenter v. State, 785 So.2d 1182 (Fla.2001).

Here, the trial court allowed the State to publish the victim’s written statement she prepared for law enforcement. It did so pursuant to the “past recollection recorded” exception to the hearsay rule. Section 90.808(5), Florida Statutes, addresses this exception:

(5) Recorded recollection.—A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.

Here, the State established that the victim wrote a sworn statement during the 45-minute police investigation, which commenced shortly after the victim called 911 for assistance; thus, the details of the incident were “fresh in the witness’ memory.” Also, the details of the assault, of which the victim later claimed to have no recollection, qualifies as “a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately.” Appellant contends, however, that only the victim could establish that the written statement reflected her knowledge correctly.

Section 90.803(5), however, does not require this. We agree with the Fifth District’s opinion in Polite v. State, which held:

Section 90.803(5) simply requires as a foundation that the statement is ‘shown to have been made by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly.’ The statute does not say that this “showing” must always (or only) be made by testimony from the declarant. A plain reading of the statute would allow admission of the statement so long as the state presented evidence (from any source) sufficient to support a finding that the statement was made when the matter was fresh in the witness’ mind, and that it was accurate.

41 So.3d 935, 940 (Fla. 5th DCA 2010), review granted, 56 So.3d 767 (Fla.2011).

Here, the State presented a recording of the 911 call where the victim is heard requesting police assistance due to a “domestic situation” that involved a threat of harm to her children. The State also presented the officer’s testimony concerning the victim’s physical and mental state when he arrived at the location given by the victim. He took photos of the victim which showed her injuries, which were shown to the jury. The officer also testified that he placed the victim under oath and watched as she wrote and signed her statement identifying Appellant as her assailant and describing the physical assault leading to her injuries. The victim acknowledged it was her signature on the statement and, although she claimed to have no memory of the events described in the statement, she admitted that the incident in question occurred in Escambia County. The State also played recordings of jailhouse phone conversations between Appellant and victim in which Appellant persistently urged the victim to drop the charges and tell the State she would not cooperate in his prosecution.

Taken in its totality, the foregoing evidence was such that the trial court could reasonably find that the victim’s written statement correctly reflected her knowledge of the events that led to her call for police assistance. “A trial court has wide discretion in areas concerning the admission of evidence, and, unless an abuse of discretion can be shown, its rulings will not be disturbed.” San Martin v. State, 717 So.2d 462, 470-471 (Fla.1998). “If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion.” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). Here, the trial court did not abuse its discretion by allowing the statement to be published to the jury.

We acknowledge that Polite is currently under review by the Florida Supreme Court, and that it, and now this opinion, conflicts with the contrary conclusion reached by the Second District in Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004), and the Fourth District in Kimbrough v. State, 846 So.2d 540 (Fla. 4th DCA 2003). We respectfully disagree with the approach taken by our sister courts in those cases.

The court in Smith held: “In order for a memorandum or record to qualify as recorded recollection, the witness must testify that he made an accurate record of the fact or event or that he is confident that the facts would not have been written unless they were true.” 880 So.2d at 736. In our view, this imposes an additional requirement for admissibility of statements under the statute, one that is not supported by the statute’s plain language and which the Legislature could have added if it so desired.

In Kimbrough, the issue involved a recorded statement by the appellant who testified he did not know if he gave a statement to police, claimed to know nothing about the incident (despite having pled guilty to a lesser-included charge related to the incident), and, “[wjhen the tape was played for him, he denied being able to recognize his voice [and] said nothing would refresh his memory, as he ‘ain’t been in my right mind the last couple of days, I don’t know nothing.’ ” 846 So.2d at 542. Similar to here, the trial court in Kimbrough allowed the tape to be played for the jury after the State presented testimony from the investigating detective, who identified the witness and the witness’s voice on the tape. Id. The Fourth District reversed, “because [the witness] not only had no recollection of giving the statement but could not recognize his voice on the tape,” and the detective’s testimony was not sufficient to overcome this. Id. The court held that the State failed to establish the proper predicate for admitting the statement because the appellant “could not testify either that the statement was his or that it was accurate.” Id. at 544. Again, nothing in the statute limits the “showing” of the statement’s accuracy to the witness herself. Thus, the Fourth District also added to the statute a requirement that is simply not there — a requirement the Legislature could easily have inserted if it desired to do so.

Because of the conflict, however, and the supreme court’s decision to address it, we address whether, assuming allowing publication of the statement to the jury was error, that error was harmless. We hold that it was.

Even absent the victim’s written statement, the State presented sufficient evidence of Appellant’s guilt: The victim’s 911 call in the wake of a domestic incident involving threats to her children; testimony from the investigating officer as to the fresh injuries he noticed on Appellant’s body as well as her distressed mental state; and photographic evidence of the victim’s injuries. In addition, after discussing the incident with the victim, police left with the understanding that Appellant was the assailant. Further, during the jailhouse phone conversations which were played for the jury, there is no discussion of Appellant’s innocence; rather, the conversations center around Appellant, pressuring the victim to drop the charges and to refuse to cooperate with the prosecution. Finally, although the victim claimed to have no recollection of the details of the incident, she never denied that it took place or recanted. Indeed, she acknowledged that “it” occurred in Escambia County.

Conclusion

For the foregoing reasons, we AFFIRM Appellant’s conviction and sentence.

MARSTILLER, J., concurs.

WOLF, J., dissents with opinion.

WOLF, J.,

Dissenting.

The alleged victim’s written statement made at the time of the incident in question was improperly admitted as a past recollection recorded pursuant to section 90.803(5), Florida Statutes (2011), where the victim failed to testify that the statement, when made, was an accurate account of what had occurred. In addition, because it is the only evidence of how the victim sustained her injuries, the admission of the statement cannot constitute harmless error.

Section 90.808(5) specifically requires that for a statement to be admitted as a past recollection recorded, the “memorandum or record concerning a matter ... [must] reflect that knowledge correctly.” The overwhelming precedent and experts in the field of evidence require that the person having recorded the statement verify the accuracy of the facts contained in the statement. See generally Charles W. Ehrhardt, Florida Evidence, § 803.5 (2011); Kimbrough v. State, 846 So.2d 540, 543 (Fla. 4th DCA 2003) (“The witness must be able to assert now that the record correctly represented his knowledge and recollection at the time of making.”) (quoting Ringgold v. State, 34 Md.App. 286, 367 A.2d 35, 36 (1976) (citing 3 J. Wigmore, Evidence §§ 734, 746(2) (Chadbourne rev. 1970)). This interpretation is consistent ■with the reason behind the exception and is consistent with the Florida Supreme Court’s application of other hearsay exceptions. Finally, while strong policy arguments may be made for easing the historic admissibility standards for past recollections recorded in the context of domestic violence cases, such matters are appropriate for the Legislature and not for this court.

1. Overwhelming Precedent Supports Requiring the Declarant to Testify As to the Accuracy of Statements Prior to Their Admission as Past Recollections Recorded

The Eleventh Circuit Court of Appeals recently addressed the admissibility of statements as past recollection recorded in U.S. v. Jones, 601 F.3d 1247 (11th Cir. 2010).

Rule 803(5) also requires that the witness verify the contents of the past statement. “The witness must be able ■now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he knew it to be true at the time.” Lopez v. United States, 373 U.S. 427, 448 n. 1, 83 S.Ct. 1381, 1393, n. 1, 10 L.Ed.2d 462 (1963) (citation and internal quotation marks omitted).

Id. at 1262.

Every case in Florida that has addressed the issue, except for the Fifth District’s opinion in Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), rev. granted 56 So.3d 767 (Fla.2011), has rejected the concept that the accuracy of the statement at the time it was made may be proven by circumstantial evidence. See Bartholomew v. State, 101 So.3d 888 (Fla. 4th DCA 2012); Hernandez v. State, 31 So.3d 873 (Fla. 4th DCA 2010); Smith v. State, 880 So.2d 730 (Fla. 2d DCA 2004); Kimbrough, 846 So.2d 540.

2. The Traditional Approach to the Admissibility of Past Recollection Recorded is Consistent with the Reasons for Allowing the Admission of Past Recollections Recorded and the Supreme Court’s View of Admissions of Evidence Pursuant to Hearsay Exceptions

In Kimbrough, 846 So.2d at 543, Judge Warner explained the history behind the past recollection recorded hearsay exception and concluded that its purpose was to allow a witness who had a true loss of memory and who was able to swear positively that the previous statement was accurate at the time it was given be allowed to give that evidence. Under these limited circumstances, the “ ‘ends of justice’ ” would be served. Id. at 543 (quoting Ringgold, 367 A.2d at 36). As noted by the Fourth District in Bartholomew:

The requirement that the witness acknowledge the accuracy of the recorded recollection at trial is consistent with the belief that this exception is justified because the witness, who is subject to cross-examination, “incorporates into [his] testimony by reference the record of past recollection.”

101 So.3d at 892 (quoting Montano v. State, 846 So.2d 677, 681 (Fla. 4th DCA 2003)).

The purpose of the exception is not to allow the State to call “a recalcitrant witness who is seeking to avoid giving testimony favorable to the party calling the witness and is fabricating memory loss.” Charles W. Erhardt, Florida Evidence, § 803.5, 893-94 (2011). Nor is the reason for the use of the past recollection recorded exception to give the State a vehicle for improperly impeaching its own witness. Hernandez, 31 So.3d at 878-79.

The Fifth District’s focus on external factors to determine reliability is misplaced because, as the Fourth District recognized in Montano, 846 So.2d at 681-82, “[u]nlike exceptions to the rule against hearsay which derive their reliability from the circumstances that surround the making of an out-of-court statement, the reliability of a recorded recollection depends on the credibility of its maker.” (Emphasis added).

In addition, the supreme court, in a similar context, rejected the idea that a prior statement could be admitted based on some level of reliability where it did not meet the standards enumerated within the statutory hearsay exception. See State v. Delgado-Santos, 497 So.2d 1199 (Fla.1986), adopting Delgado-Santos v. State, 471 So.2d 74 (Fla. 3d DCA 1985).

3. We Should Not Apply the Fifth District’s Reasoning in Polite v. State to the Facts in This Case

As previously addressed, the Fifth District’s opinion in Polite, 41 So.3d 935, is inconsistent with the well-reasoned traditional approach to admissions of statements as past recollection recorded. There are several additional reasons not to apply the Polite rationale to this case.

Most importantly, unlike this case, in Polite, the witness: 1) testified at trial to a number of the details contained in the prior statement; 2) acknowledged not only that it was the witness’s signature at the bottom of the statement, but also that the witness told police what had occurred when they arrived; and 8) there was specific independent verification of a number of the details contained in the statement. Id. at 941. None of that is present in this case. Thus, even if circumstantial evidence and reliability could be taken into account in applying the hearsay objection, the facts in Polite are far more compelling for doing so than in the instant case.

I would also note that in Polite, the court acknowledged that the issue concerning the admissibility of the past recollection recorded was not properly preserved. Id. at 989.

4. The Legislature is the Correct Branch of Government to Determine Whether Past Recollection Recorded Should be Expanded in Domestic Violence Situations

There are many valid policy arguments as to why past statements of domestic violence victims should be admissible in prosecutions of the alleged batterers. Financial and emotional pressures, the involvement of children, and threats of physical violence are but a few of the reasons why a victim would be unwilling to testify in accordance with facts related at the scene. The weighing of these policy considerations, however, and the potential expansion of the exception, should be left to the Legislature for a number of reasons.

First, and most important, we as a court are unable to draft an exception applicable to only domestic violence cases. Such a change would involve rewriting the statute. We can only do what the majority in this case is doing and what the Fifth District did in Polite: expand the exception to all cases. This expansion would be problematic. In other types of cases, policy considerations may not outweigh the traditional reasons for requiring the declarant to acknowledge the accuracy of the previous statement. The question of expansion and how broad it should be, should be up to the Legislature. See, e.g., § 90.803(23), Fla. Stat. (proscribing a hearsay exception for statements of child abuse victims).

Second, the change in the law being proposed involves complicated substantive policy questions concerning the extent criminal trials should involve the use of past statements, whether and to what extent reliability and circumstantial evidence should be considered in determining admissibility of these prior statements, and as previously stated, whether more liberal standards should only be allowed in those types of cases where obtaining live testimony may be problematic. While the courts may properly review the constitutionally of these substantive-type policy decisions made by the Legislature under traditional concepts of separation of powers, the courts should not be setting public policy. See Delgado-Santos, 497 So.2d 1199.

5. The Admission of These Statements Did Not Constitute Harmless Error

I also cannot conclude that this error was harmless beyond a reasonable doubt. See State v. DiGuilio, 491 So.2d 1129, 1138-1139 (Fla.1986). The test is not whether the State presented other sufficient evidence of appellant’s guilt. The test is whether we can say beyond a reasonable doubt that the error did not contribute to the conviction. Id. at 1135. While there was some evidence of the surrounding circumstances, the only evidence of how the victim actually sustained her injuries was contained in the disputed statement. Under these circumstances, I cannot say the error was harmless.


text:
    Ronterrius TURNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6605.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Nancy A. Daniels, Public Defender; Steven L. Seliger, Nina Moody, and Kathleen Stover, Assistant Public Defenders, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the appellant’s conviction and sentence, but reverse and remand for correction of a statutorily excessive fine.

Section 938.05(l)(a), Florida Statutes (2011), mandates a $225 fine for felony convictions. Here, the court imposed a $230 fine. We reverse the imposition of the $230 fine in violation of section 938.05(l)(a) and remand with instructions to reduce the fine to $225 and correct the judgment accordingly.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Shelton Ty PRUDHOMME, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D11-6694.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Shelton Ty Prudhomme, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee; Jennifer Parker, General Counsel, and Michael Kennett, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   PER CURIAM.

We affirm without further comment, the trial court’s determination that the sentence imposed in the Third Circuit did not run coterminously with the sentence imposed in the Nineteenth Circuit. However, in light of the Department of Correction’s (“the Department”) concession of error, we reverse and remand the trial court’s dismissal, on procedural grounds, Appellant’s claim that the Department failed to properly calculate and apply Appellant’s prison credit to his Third Circuit case. See Osborne v. Tucker, 80 So.3d 413 (Fla. 1st DCA 2012) (reversing and remanding, in light of State’s concession, dismissal of habeas petition for lower court to redesignate petition as a mandamus action and transfer the case to the appropriate court).

AFFIRMED IN PART, REVERSED IN PART, and REMANDED WITH INSTRUCTIONS.

CLARK, WETHERELL, and MAKAR, JJ., concur.


text:
    Christopher D. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2683.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Christopher D. Thomas, pro se, Appellant.
    Pamela J. Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We conclude that we have jurisdiction. As the state properly concedes, the appellant is entitled to an evidentiary hearing on the merits of his motions for return of property. We therefore reverse and remand for a hearing.

DAVIS, PADOVANO, and THOMAS, JJ., concur.


text:
    Carter G. HAWKINS, Appellant, v. Mary G. HAWKINS, Appellee.
    No. 1D12-2539.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2013.
    Rehearing Denied March 28, 2013.
    Carter G. Hawkins, pro se, Appellant.
    Michael D. Weinstock, Niceville, for Ap-pellee.
   PER CURIAM.

The former husband raises nineteen issues for review, challenging two orders of the trial court in this dissolution of marriage action. We affirm these orders in all respects, except as to the credit awarded the former "wife in the Order Determining Proportionate Share of Expenses. The former wife concedes that each party is responsible for one half of the total expenses and that, as such, her credit in this order should be $17,211.86, rather than the $34,423.71 the trial court credited her in the order. Therefore, we reverse and remand for correction of this amount and we otherwise affirm in all other respects.

Affirmed in part and reversed in part.

DAVIS, PADOVANO, and THOMAS, JJ., concur.