author: WALLACE, Judge.

text:
    Christopher BROOKS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2586.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Christian M. Denmon of Denmon & Denmon Law, P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Christopher Brooks challenges the judgment and sentence imposed following a jury verdict finding him guilty of felony driving under the influence (DUI) under sections 316.193(1) and 316.193(2)(b)(l), Florida Statutes (2010). We affirm Mr. Brooks’ judgment and sentence but write to discuss the trial court’s denial of his request for a jury instruction on the defense of necessity. The other issues raised by Mr. Brooks are without merit and do not warrant discussion.

At approximately 1 a.m. on October 30, 2010, a Hillsborough County sheriffs deputy clocked Mr. Brooks’ vehicle travelling at eighty-four miles per hour in a fifty-five mile per hour speed zone. The deputy watched as Mr. Brooks veered across three lanes of traffic toward a highway exit ramp. The deputy’s initial observations of Mr. Brooks, Mr. Brooks’ performance on a field sobriety test, and the results of a breathalyzer test confirmed that Mr. Brooks was intoxicated. Because this was his third DUI within a ten-year period, the State charged Mr. Brooks with felony DUI, a third-degree felony. See § 316.193(2)(b)(l). At trial, Mr. Brooks did not deny that he was driving under the influence of alcohol. Nevertheless, he argued that circumstances compelled him to take to the highway. Mr. Brooks’ defense was that his friend’s cat was sick, and Mr. Brooks was the only person available who could transport the cat to an all-night veterinary clinic for treatment.

Although Mr. Brooks’ defense is unusual, he presented some evidence to support it. He was transporting a cat, and the cat was very ill. There is a veterinary clinic near the highway exit where the deputy stopped Mr. Brooks. The cat’s owner and two of his acquaintances were passengers in Mr. Brooks’ car. One of these persons was apparently giving Mr. Brooks directions to the clinic when the deputy stopped Mr. Brooks’ vehicle. While Mr. Brooks explained the unusual circumstances of his errand to the deputy, the cat’s owner pleaded, “My cat is fixing to die!” In fact, the cat did die, during or shortly after the vehicle stop that resulted in Mr. Brooks’ arrest.

We review a trial court’s refusal of a requested jury instruction for abuse of discretion. Williams v. State, 34 So.3d 768, 770 (Fla. 2d DCA 2010) (citing Brown v. State, 11 So.3d 428, 432 (Fla. 2d DCA 2009)). “In criminal cases, the trial court’s discretion is limited because ‘a criminal defendant is entitled to have the jury instructed on his or her theory of defense if there is any evidence to support this theory, and so long as the theory is recognized as valid under the law of the state.’ ” Id. at 770-71 (quoting Worley v. State, 848 So.2d 491, 492 (Fla. 5th DCA 2003)).

Before examining the merits of Mr. Brooks’ appellate argument, we must first address whether a claim of necessity is available in Florida as a defense to a charge of driving under the influence of intoxicating beverages. The parties have not cited — and our independent research has not disclosed — any decisions from the Supreme Court of Florida or from the Florida district courts of appeal addressing this issue. However, there are circuit court appellate decisions on point. In Newsome v. State, 1 Fla. L. Weekly Supp. 6 (Fla. 15th Cir.Ct. July 10, 1992), New-some was charged with DUI and driving with a suspended license. The arresting officer testified that she found Newsome asleep and slumped over the wheel of his car at an intersection. The car’s engine was running, the gear shift was in drive, and Newsome’s foot was on the brake. Newsome claimed that a female companion, who was his designated driver, had abandoned him and the car in the middle of the intersection. Thus the circumstances compelled him to drive the car to remove it from the intersection. New-some’s companion confirmed his account of her role in the incident. Newsome requested a jury instruction on the defense of necessity, but the county court declined to give the instruction. A jury found New-some guilty, and he appealed to the circuit court.

In the absence of any Florida authority, the circuit court reviewed opinions from other jurisdictions and concluded that the necessity defense “applies to traffic offenses including driving under the influence and driving with a suspended license.” Id. Applying the defense to the facts of Newsome’s case, the circuit court reversed Newsome’s judgment and sentence based on the county court’s denial of the requested instruction. The circuit court explained:

In the instant case, there is evidence that [Newsome] reasonably concluded an emergency situation existed. [New-some] testified he intended to drive the car off the road, because he feared a rear-end collision. The arresting officer testified this road was heavily traveled and that [Newsome’s] car was dangerously situated. There is evidence that a real and imminent possibility of being hit by another car existed and created a reasonable expectation of harm. A jury could believe that the unlawful act, driving while intoxicated, was necessary to avoid a rear-end collision.

Id.; see also Clements v. State, 18 Fla. L. Weekly Supp. 50 (Fla. 18th Cir.Ct. July 13, 2010) (holding that a defendant charged with DUI who had sought refuge from a tropical storm in his car and had gone to sleep was entitled to a jury instruction on the defense of necessity); Umana v. State, 11 Fla. L. Weekly Supp. 875 (Fla. 11th Cir.Ct. July 20, 2004) (affirming the conviction of a defendant who claimed that the trial court’s ruling improperly compelled him to take the stand where the trial court refused to give a necessity instruction at the close of the State’s case but granted the defense request for the instruction only after the defendant testified in his own defense); Hilton v. State, 6 Fla. L. Weekly Supp. 191 (Fla. 9th Cir.Ct. Jan. 29, 1999) (holding that a defendant charged with DUI who claimed to have been carjacked presented insufficient evidence to warrant instructing the jury on the defense of necessity). See generally David A. Demers, “Necessity,” in DUI Handbook § 1:12 (11 West’s Fla. Practice Series 2012-2013 ed.) (discussing the defense of necessity in the context of prosecutions for DUI).

Courts from several other jurisdictions have recognized the availability of the necessity defense in DUI cases. See People v. Pena, 197 Cal.Rptr. 264, 269 (1988) (holding that the defense of duress/necessity is available to a defendant charged with DUI); Toops v. State, 643 N.E.2d 387, 390 (Ind.Ct.App.1994) (holding that the defendant, who had been a passenger in an automobile, was entitled to a jury instruction on the defense of necessity where the driver suddenly abandoned the steering wheel and dove into the back seat, requiring the defendant to take control of the automobile to avoid a crash); Commonwealth v. Kendall, 451 Mass. 10, 883 N.E.2d 269, 273 (2008) (“[A]n instruction on necessity is appropriate where there is evidence that supports at least a reasonable doubt whether operating a motor vehicle while under the influence of intoxicating liquor was justified by necessity.”); Hoagland v. State, 240 P.3d 1043, 1044-45 (Nev.2010) (concluding that necessity is available as a defense to a DUI charge); State v. Romano, 355 N.J.Super. 21, 809 A.2d 158, 159 (2002) (holding that the defendant was entitled to a judgment of acquittal based on the defense of necessity where he had been attacked and beaten by several men, was bleeding, and was forced to drive away to avoid further injury at the hands of his assailants); State v. Hudgins, 167 N.C.App. 705, 606 S.E.2d 443, 447 (2005) (“[T]he defense of necessity is available in a DWI prosecution.”); State v. Olson, 79 Or.App. 302, 719 P.2d 55, 57 (1986) (stating that the defendant in a DUI prosecution was entitled to assert the choice of evils defense based on evidence that he chose to move his car out of an intersection rather than leave it in a lane of traffic); State v. Shotton, 142 Vt. 558, 458 A.2d 1105, 1106 (1983) (“The evidence presented at trial was sufficient to raise a question of fact for the jury as to whether defendant drove because it was reasonably conceived by her to have been a necessity; accordingly, an instruction on the issue should have been given upon request.”). See generally Michael J. Yaworsky, Driving While Intoxicated: “Choice of Evils” Defense that Driving Was Necessary to Protect Life or Property, 64 A.L.R.4th 298 (1988).

Of course, where it appears that reasonable alternatives to driving under the influence are available to address a claimed emergency, courts have held that the necessity defense is not available. See Kendall, 883 N.E.2d at 274 (concluding that the defendant was not entitled to an instruction on the defense of necessity where he failed to present any evidence that there were no effective legal alternatives to his decision to drive while intoxicated to abate a claimed medical emergency); Stodghill v. State, 892 So.2d 236, 239-40 (Miss.2005) (approving the trial court’s refusal to give a necessity instruction based on medical necessity because the defendant failed to establish the absence of reasonable alternatives to driving while intoxicated); State v. Farris, 778 S.W.2d 11, 13 (Mo.Ct.App.1989) (holding that the defendant was not entitled to an instruction on necessity where he failed to show the absence of legal alternatives to driving while intoxicated).

Based on a review of the authorities cited above, we conclude that the defense of necessity is available in Florida to a DUI charge. In order to be entitled to an instruction on the defense of necessity, the defendant must present evidence of five elements:

(1) [T]he defendant reasonably believed that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others, (2) the defendant did not intentionally or recklessly place himself in a situation in which it would be probable that he would be forced to choose the criminal conduct, (3) there existed no other adequate means to avoid the threatened harm except the criminal conduct, (4) the harm sought to be avoided was more egregious than the criminal conduct perpetrated to avoid it, and (5) the defendant ceased the criminal conduct as soon as the necessity or apparent necessity for it ended.

Reed v. State, 114 So.3d 969, 972 n. 5 (Fla. 5th DCA 2012). Having reviewed the applicable law, we turn now to the facts of Mr. Brooks’ case.

As the trial court correctly observed, the first of the five elements of the necessity defense requires that the defendant reasonably believe that his action was necessary to avoid an imminent threat of danger or serious bodily injury to himself or others. We do not interpret the phrase “or others” as applying to animals. Moreover, the words of paragraph 2 of the standard jury instruction on the defense of necessity contemplate an emergency threatening significant harm to the defendant or to “a third person.” See Fla. Std. Jury Instr. (Crim.) 3.6(k). Although Mr. Brooks’ wish to obtain treatment for the ailing feline is understandable, the elements of the defense and the plain language of the jury instruction compel us to the conclusion that a claim of necessity is not available as a defense to a DUI charge in Florida when the asserted emergency involves the threat of harm to an animal instead of a person. Cf. Mickell v. State, 41 So.3d 960, 961 (Fla. 4th DCA 2010) (noting the defendant’s invocation of the defense of necessity to a charge of driving while license revoked as a habitual offender where the defendant was transporting to the hospital a woman who was suffering from an asthma attack). Because Mr. Brooks did not present any evidence in support of the first element of the necessity defense, we need not consider the evidence as it relates to the remaining four elements.

For these reasons, the trial court did not err in refusing to instruct the jury on the defense of necessity. Accordingly, we affirm Mr. Brooks’ judgment and sentence.

Affirmed.

SILBERMAN and VILLANTI, JJ., Concur.

      . The record does not establish whether the veterinary clinic was actually open for emergencies all night.

      . Unfortunately, Newsome failed to clear the intersection; he fell asleep while waiting for the traffic light to change.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Glenn C. BELL, Appellee.
    No. 2D12-4738.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   SILBERMAN, Judge.

In this prosecution for possession of more than twenty grams of marijuana, the State appeals an order suppressing evidence found on the person of Glenn C. Bell. Because the officer had a consensual encounter with Bell during which Bell consented to a search, we reverse the suppression order and remand for further proceedings.

Bell filed a motion to suppress the marijuana found on his person when Officer Cope searched Bell on December 23, 2011. At the suppression hearing, a sergeant with the St. Petersburg Police Department testified that while she was off duty she observed a potential domestic disturbance as she was driving in St. Petersburg on the afternoon of December 23, 2011. Bell was on foot, and a female was driving a vehicle that appeared to be following Bell. Bell and the woman were yelling back and forth at each other. The woman pulled into a driveway, and they continued to argue in the driveway. The yelling attracted the attention of onlookers, and the sergeant knew that neither Bell nor the woman lived at that location. The sergeant called dispatch and reported the incident.

Officer Cope responded to the scene, parked his cruiser, and approached Bell on foot. Officer Cope, who was in uniform, did not put his hands on Bell and did not pull out his gun. Officer Cope said to Bell, “Can I speak to you?” When asked if those were the words he used, Officer Cope testified, “Yes, that’s how I generally stop people.” Although he used the word “stop,” Officer Cope acknowledged that he had no suspicion of criminal activity that would support a detention.

Bell agreed to speak with the officer. Officer Cope explained that he was there for a “potential domestic situation” and he “was trying to make sure that nobody was harmed, there’s no physical violence between anyone.” As they were speaking, Officer Cope noticed Bell fidgeting with his hands and putting them behind his back. Officer Cope asked Bell not to do that and asked whether Bell was carrying any weapons. Bell said he was not. Officer Cope then asked, “Can I search you?” Bell said yes, and Officer Cope found marijuana in a pocket of Bell’s shorts.

The trial court ruled that Officer Cope detained Bell without reasonable suspicion of criminal activity and that the subsequent consent to search was invalid. The trial court stated that Bell “should have been told that he was free to leave.” The court determined the “consent wasn’t valid in this case, either that he would not have known he was free to leave, that there wasn’t a basis initially for stopping him, and that the State hasn’t met its burden to show by clear and convincing evidence that he freely and voluntarily consented to the search.” The trial court granted Bell’s motion to suppress, and the State timely appealed.

In reviewing a ruling on a motion to suppress, we defer to the trial court’s findings of historical fact that are supported by competent, substantial evidence. See Caldwell v. State, 41 So.3d 188, 194 (Fla.2010); State v. Witherspoon, 924 So.2d 868, 870 (Fla. 2d DCA 2006). Our review of the trial court’s application of the law to those findings of fact is de novo. Witherspoon, 924 So.2d at 870; see also State v. Gamez, 34 So.3d 245, 247 n. 1 (Fla. 2d DCA 2010) (recognizing that the legal issue of whether a consent to search is voluntary is subject to de novo review).

An investigatory stop to detain an individual temporarily is a seizure that requires a reasonable suspicion of criminal activity. G.M. v. State, 19 So.3d 973, 977-78 (Fla.2009). Officer Cope did not conduct an investigatory stop. Rather, he engaged Bell in a consensual encounter. It is clear that “every encounter between law enforcement and a citizen does not automatically constitute a seizure in the constitutional context.” Id. at 977. A consensual encounter involves minimal police contact in which the individual may voluntarily comply with or ignore the officer’s request. Id. The standard to determine if a consensual encounter or a seizure occurred is whether a reasonable person would feel free to leave, considering the totality of the circumstances. See id. at 978; P.W. v. State, 965 So.2d 1197, 1199 (Fla. 4th DCA 2007). Officer Cope explained how he asks citizens to speak to him. The fact that he asked if he could talk with an individual, thereby getting the person to stop, does not mean the officer’s action constituted an investigatory stop in the constitutional sense. The focus is on whether a reasonable person would feel free to leave.

Factors that indicate a seizure include “the ‘threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.’ ” P.W., 965 So.2d at 1199 (quoting United States v. Mendenhall, 446 U.S. 544, 554, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980)). Here, none of those factors are present. Officer Cope approached Bell on the street, did not display his weapon, did not touch Bell, and did not engage in any other threatening conduct. Officer Cope asked, “Can I speak to you?” Bell agreed to speak with the officer.

In Witherspoon, this court described the officer’s initial contact with Witherspoon as “a classic example of a consensual citizen encounter.” 924 So.2d at 870. There, the officer pulled his patrol car off the road around midnight and approached Wither-spoon. Id. The officer said he was conducting field interrogations and wanted to ask Witherspoon a few questions, and Witherspoon agreed. This court explained that the officer parked his patrol car, did not block Witherspoon’s way, approached Witherspoon alone, and asked to speak to him. Id. at 871.

Similarly, Officer Cope parked his patrol car, approached Bell on foot alone, and asked, “Can I speak to you?” Bell said yes, and Officer Cope explained that he was there for a potential domestic situation and wanted to make sure that no one was harmed. Based on the totality of the circumstances, this constituted a consensual encounter.

With respect to the ensuing search, Officer Cope noticed Bell fidgeting with his hands and putting them behind his back during their conversation. Officer Cope asked Bell not to do that and asked Bell whether he was carrying any weapons. Bell said that he was not. Officer Cope then asked, “Can I search you?” Bell said yes, and the search revealed marijuana.

When there is no prior illegal police conduct, the State has the burden to show by a preponderance of the evidence that the consent to search was voluntary. Gamez, 34 So.3d at 247. An officer may ask for consent to search during a consensual citizen encounter, and the “officer need not have a reasonable suspicion of criminal activity before seeking consent to search.” Witherspoon, 924 So.2d at 871. In Witherspoon, the officer approached on foot and engaged Witherspoon in a consensual encounter. 924 So.2d at 870. During their conversation the officer asked for permission to conduct a pat down, and Witherspoon agreed. This court determined that the consent to the pat down was voluntary. Id. at 871; see also P.W., 965 So.2d at 1199 (determining that the officer asked P.W. for consent to a pat down during a consensual encounter and that the consent was voluntary).

In Gamez, this court determined that a consent to search during an investigatory stop was voluntary and rejected Gamez’s argument that his consent was a concession to the officer’s authority. 34 So.3d at 247-48. This court noted that there was no coercive conduct by the police and that “Gamez never testified that he felt his consent was not voluntary or that he felt he did not have a choice.” Id. at 248.

Similarly, there is no evidence that Officer Cope engaged in any coercive conduct during the consensual encounter. Further, there is no evidence that Bell felt that he did not have a choice when the officer asked for consent to search. Based on the totality of the circumstances, we conclude that Bell’s consent to search was voluntary.

Because Officer Cope engaged Bell in a consensual encounter during which Bell gave a voluntary consent to search, the trial court should have denied Bell’s motion to suppress. Therefore, we reverse the suppression order and remand for further proceedings.

VILLANTI and WALLACE, JJ., Concur.


text:
    Michael L. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4920.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Carl R. Hayes, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Michael L. Jones appeals his convictions and sentences, arguing that the trial court erred by denying his motion to suppress. We affirm because when Jones entered his guilty plea, the denial of his motion to suppress was not mentioned at the change of plea hearing or noted in the plea agreement; thus, he did not “expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.” Fla. R.App. P. 9.140(b)(2)(A)(i); see also Leonard v. State, 760 So.2d 114, 119 (Fla.2000); Bonfiglio v. State, 57 So.3d 990, 991 (Fla. 2d DCA 2011); M.N. v. State, 16 So.3d 280, 282 (Fla. 2d DCA 2009) (en banc).

Affirmed.

NORTHCUTT and LaROSE, JJ., Concur.


author: MORRIS, Judge.

text:
    Francisco RODRIGUEZ-MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-22.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
   MORRIS, Judge.

Francisco Rodriguez-Martinez appeals the dismissal of his motion filed under Florida Rule of Criminal Procedure 3.850. We affirm but without prejudice to permit Mr. Rodriguez-Martinez to file an amended motion.

Mr. Rodriguez-Martinez was initially charged with lewd molestation. On April 25, 2006, he entered a negotiated plea to a lesser-included offense of abuse of a child and was sentenced to five years’ probation with adjudication withheld. On August 31, 2011, the victim of the lewd molestation charge signed a sworn affidavit recanting her allegations against Mr. Rodriguez-Martinez.

On October 19, 2012, Mr. Rodriguez-Martinez filed a motion for postconviction relief, raising two grounds for relief. We affirm the denial of the second ground without comment. In his first ground for relief, Mr. Rodriguez-Martinez claimed that the victim’s affidavit proves that he was actually innocent of the charges filed against him.

The postconviction court dismissed Mr. Rodriguez-Martinez’s motion as untimely under rule 3.850(b) because his judgment and sentence became final more than six years before he filed this motion for post-conviction relief. But the victim’s recantation could amount to newly discovered evidence under rule 3.850(b)(1). See Davis v. State, 26 So.3d 519, 526 (Fla.2009) (“[R]e-canted testimony that is alleged to constitute newly discovered evidence will mandate a new trial only if (1) the court is satisfied that the recantation is true[ ] and (2) the recanted testimony would probably render a different outcome in the proceeding.”). Nevertheless, the court correctly dismissed the motion because Mr. Rodriguez-Martinez failed to allege the victim’s recantation could not have been previously ascertained by the exercise of ■ due diligence. See Fla. R.Crim. P. 3.850(b)(1).

We note that the two-year period during which Mr. Rodriguez-Martinez may raise a claim of newly discovered evidence under rule 3.850(b)(1) will have run during the pendency of this appeal. Accordingly, we affirm the postconviction court’s order without prejudice to permit Mr. Rodriguez-Martinez to file an amended motion in conformance with rule 3.850(b)(1) within thirty days of the date this opinion becomes final. See Davis, 26 So.3d at 527 (granting leave to amend facially insufficient claims of newly discovered evidence). The amended motion shall not be considered untimely or successive.

Affirmed without prejudice.

KELLY and SLEET, JJ., Concur.


author: CASANUEVA, Judge.

text:
    Kirk Mariano GUTIERREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1707.
    District Court of Appeal of Florida, Second District.
    Sept. 18, 2013.
    Howard L. Dimmig, II, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

Kirk Mariano Gutierrez challenges his convictions and sentences for aggravated assault with a firearm and aggravated battery with great bodily harm. He raises three issues of which we find merit only in the third, an error on the sentencing document that the State concedes. The aggravated battery conviction, a second-degree felony, was erroneously listed as a first-degree felony. Accordingly, we affirm Mr. Gutierrez’s convictions and sentences but remand for correction of the sentencing documents.

Affirmed; remanded for correction as noted above.

ALTENBERND and NORTHCUTT, JJ., Concur.


author: PER CURIAM.

text:
    Herman GIBSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-4221.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2013.

      Herman Eugene Gibson, Crawfordville, Pro Se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING

PER CURIAM.

By order, we granted appellant’s motion for rehearing and withdrew our May 1, 2013 opinion. We reverse and remand for further proceedings. The trial court erred in summarily denying appellant’s facially sufficient motion for postconviction relief without explanation and without attachments. Terry v. State, 970 So.2d 863 (Fla. 4th DCA 2007); Dieudonne v. State, 958 So.2d 516 (Fla. 4th DCA 2007); Anderson v. State, 627 So.2d 1170 (Fla.1993).

The State’s argument that the motion does not satisfy the pleading requirements of Alcorn v. State, 121 So.3d 419 (Fla.2013), may be addressed on remand.

Reversed and remanded.

WARNER, CIKLIN and CONNER, JJ., concur.


text:
    Michael PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3250.
    District Court of Appeal of Florida, Third District.
    Sept. 18, 2013.
    Opinion on Rehearing Oct. 9, 2013.
    Michael Perez, in proper person.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for petitioner.
    Before SHEPHERD, C.J., and WELLS and LAGOA, JJ.
   ON MOTION FOR CERTIFICATION

PER CURIAM.

Upon consideration of Petitioner’s Motion, we certify the following question to our supreme court as one of great public importance:

HOW SHOULD MANIFEST INJUSTICE BE DEFINED FOR PURPOSES OF A CLAIM OF NEWLY DISCOVERED EVIDENCE AFTER A GUILTY PLEA?
Certification granted.

SHEPHERD, C.J., and WELLS and LAGOA, JJ., concur.


author: BLACK, Judge.

text:
    Charles Edward CASH, Appellant, v. Jennifer Sue CASH, Appellee.
    No. 2D12-435.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2013.

      Mary C. Evans of Law Office of Mary C. Evans, P.A., Ft. Myers, for Appellant.
    No appearance for Appellee.
   BLACK, Judge.

Charles E. Cash, the former husband, appeals the trial court’s supplemental final judgment of dissolution of marriage. The former husband and Jennifer Sue Cash, the former wife, were married in 2001 and divorced in 2007. During the dissolution proceedings, the parties entered into a marital settlement agreement which included a child support obligation calculated using a stipulated-to income attributed to the former husband.

In 2010, the former husband filed a petition to modify his child support payments, contending that his income had drastically decreased from the attributed figure, constituting a material change in his financial circumstances. Following a one-day hearing on the former husband’s petition, the trial court entered a letter ruling reducing the former husband’s monthly child support obligation from $5031 to $3756. Two months later the court rendered the supplemental final judgment in order form. The order is identical to the letter ruling.

On appeal, the former husband argues that the trial court abused its discretion in ordering child support that deviates from the guidelines figure. He also argues that the trial court erred in failing to impute income to the former wife, in calculating the former husband’s income, and in failing to apply the reduced child support obligation retroactively to the date the petition for modification was filed. We agree with the former husband.

I. Deviation from the guidelines

In its supplemental final judgment, the trial court included two upward deviations from the child support guidelines’ figure, stating that “the [cjourt shall deviate from the child support guidelines by the [five percent] permitted without extraordinary circumstances required and shall further deviate by requiring an additional [five percent] as a result of the [h]usband’s limited timesharing with the children.” The order on appeal includes only the finding that “[c]hild support based on [the former husband’s monthly] income of $23,000 will dramatically decrease the [fjormer [w]ife’s child support income and make it difficult for the [f]ormer [w]ife to meet her financial obligations.” The trial court made no oral findings on the record at the hearing on the former husband’s petition.

Section 61.30(l)(a), Florida Statutes (2010), provides:

The trier of fact may order payment of child support which varies, plus or minus 5 percent, from the guideline amount, after considering all relevant factors, including the needs of the child or children, age, station in life, standard of living, and the financial status and ability of each parent. The trier of fact may order payment of child support in an amount which varies more than 5 percent from such guideline amount only upon a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.

Section 61.30(ll)(a) provides an additional set of deviation factors:

The court may adjust the total minimum child support award, or either or both parents’ share of the total minimum child support award, based upon the following deviation factors:
1. Extraordinary medical, psychological, educational, or dental expenses.
2. Independent income of the child, not to include moneys received by a child from supplemental security income.
3. The payment of support for a parent which regularly has been paid and for which there is a demonstrated need.
4. Seasonal variations in one or both parents’ incomes or expenses.
5. The age of the child, taking into account the greater needs of older children.
6. Special needs, such as costs that may be associated with the disability of a child, that have traditionally been met within the family budget even though the fulfilling of those needs will cause the support to exceed the presumptive amount established by the guidelines.
7. Total available assets of the obligee, obligor, and the child.
11. Any other adjustment which is needed to achieve an equitable result which may include, but not be limited to, a reasonable and necessary existing expense or debt.

Although not entirely clear, it appears the court may have deviated from the presumptive child support figure based upon the former wife’s purported monthly deficit in the event the child support significantly decreased. While we recognize that specific findings are not required for a five percent deviation, see Fla. Dep’t of Revenue ex rel. Bloemendal v. Hodge, 754 So.2d 845, 846 (Fla. 2d DCA 2000), neither the record nor the order in this case indicates that the court considered any of the statutory factors in increasing the presumptive child support obligation by five percent. Therefore, the trial court abused its discretion in ordering the deviation. See Thyrre v. Thyrre, 963 So.2d 859, 863-64 (Fla. 2d DCA 2007).

The court also abused its discretion in ordering a second five percent deviation. The supplemental final judgment states only that the court is deviating from the guidelines by an “additional [five percent] as a result of the [former] [h]usband’s limited time sharing with the children.” Section 61.30(1) mandates that a deviation in excess of five percent must be supported by “a written finding explaining why ordering payment of such guideline amount would be unjust or inappropriate.” § 61.30(l)(a); see also Whittingham v. Whittingham, 67 So.3d 239, 239 (Fla. 2d DCA 2010). Here, the court’s finding is insufficient. See Swanston v. Swanston, 746 So.2d 566, 570 (Fla. 1st DCA 1999); cf. Hodge, 754 So.2d at 847. See generally Hall v. Hall, 994 So.2d 1169, 1171 (Fla. 1st DCA 2008) (“[Djeviation from the guidelines normally is justified where a child’s special needs call for more support.”).

II. Failure to impute income to former wife

In the supplemental final judgment the court did not impute income to the former wife, finding that “the evidence was insufficient.” The former husband contends this is error given the evidence presented at the hearing. The court’s order provides no basis for its decision to impute no income to the former wife, and the record reflects that the former husband asked the court to impute income at the hearing on his petition for modification.

Monthly income “shall be imputed to an unemployed or underemployed parent when such [unemployment or underemployment is found by the court to be voluntary on that parent’s part, absent a finding of fact by the court of physical or mental incapacity or other circumstances over which the parent has no control.” § 61.30(2)(b). Imputing income is a two-step analysis: “(1) the determination of whether the parent’s underemployment was voluntary, and (2) if so, the calculation of imputed income.” Bator v. Osborne, 983 So.2d 1198, 1200 (Fla. 2d DCA 2008). The former husband had the burden of proof as the party asserting that the former wife was voluntarily unemployed and that income should be imputed to her. See Torres v. Torres, 98 So.3d 1171, 1172 (Fla. 2d DCA 2011). “The decision to impute income and the determination of the amount of income to be imputed must be based on competent, substantial evidence presented at an evidentiary hearing.” Roth v. Roth, 973 So.2d 580, 590 (Fla. 2d DCA 2008) (citing Wendel v. Wendel, 852 So.2d 277, 283 (Fla. 2d DCA 2003)).

Although it did not expressly state whether the former wife was voluntarily or involuntarily unemployed, the trial court found that the evidence presented was insufficient to impute income to her. Given the mandatory language of the statute, the court’s statement implicitly encompasses a finding that the former wife was involuntarily unemployed. However, none of the evidence presented at the hearing supports a finding of involuntarily unemployment. The former husband presented competent, substantial evidence that the former wife is voluntarily unemployed.

The parties were married in 2001 and their children, triplets, were born in 2004. From 2000 until just after the triplets were born, the former wife worked for the former husband. At the time of the hearing, the former wife had recently started an internet store; she testified that the business has a tax identification number, articles of incorporation, and a website and that it was recently approved by “drop shippers” for the products the store would sell. She also testified that she has looked for work in Charlotte County, where the jobs available to her pay approximately eleven dollars an hour. At the time of the hearing, she had not been formally offered a job. On cross-examination, the former wife testified that she is capable of working, that she has a degree, and that she previously worked for the Florida Department of Environmental Protection making approximately $26,000 annually. She testified that she has looked for jobs “through the county and the State” and online; she has applied for a few positions. The former wife also testified that she completed a night class in the legal assisting area. She previously worked as a legal assistant and thought she could go back into that field. She has not applied for any legal assistant positions. She believed that care for the children before and after school would cost $200 a week, making it disadvantageous to work.

In addition, there was no evidence that the former wife has a physical or mental incapacity which would limit her ability to work. Thus, the court should have considered “the employment potential and probable earnings level” of the former wife based upon “her recent work history, occupational qualifications, and prevailing earnings level in the community.” § 61.30(2)(b). Further, “‘[a] court may impute income to a party who has no income or is earning less than is available to h[er] based upon a showing that the party has the capability to earn more by the use of h[er] best efforts.’ ” Riley v. Riley, 14 So.3d 1284, 1289 (Fla. 2d DCA 2009) (quoting Koeppel v. Holyszko, 643 So.2d 72, 75 (Fla. 2d DCA 1994)).

III. Former husband’s income determination

The former husband next contends that the trial court abused its discretion in calculating the former husband’s income for use in the child support guidelines. The trial court found the former husband’s gross monthly income to be $23,000. The former husband’s financial affidavit, introduced into evidence at the hearing, indicated a monthly income of $17,677.50.

Although finding that the former husband’s purported reduction in income was speculative, the court did not rely on the 2010 income to establish the former husband’s net monthly income. Rather, the court determined the income by adding the existing child support obligation ($5000) to the former husband’s monthly expenses ($18,000). Neither monthly expenses nor existing child support obligations are listed as figures to be used in income determination. See § 61.30(2)(a). And while the statutory list is not inclusive, none of the statutory factors are payments, liabilities, or expenditures. Further, the former husband’s financial affidavit revealed a monthly deficit of $4758.14. The trial court identified some of the former husband’s expenses as extravagant, noted that all of his obligations were current, and suggested that the former husband may need to take a loss to “alleviate the attached debt” if he was struggling to make payments.

The uncontradicted evidence at the hearing established that a significant portion of the former husband’s 2010 income was nonrecurring, the result of a business sale garnering $73,500 for the former husband. To the extent the court did, or may on remand, rely on the former husband’s nonrecurring income to determine his monthly income, the court must first determine that the recurring income is insufficient to meet the children’s needs. See § 61.30(13); Vollmer v. Vollmer, 33 So.3d 67, 69 (Fla. 2d DCA 2010) (“[Nonrecurring income can ... be considered by the trial court when the recurring income is not sufficient to meet a child’s needs.”).

IV. Retroactivity

final issue raised by the for-forhusband is the court’s failure to apply the change in child support retroactively. “ ‘Retroactivity is the rule rather than the exception which guides the trial court’s application of discretion when modification of alimony or child support is granted.’ ” Thyrre, 963 So.2d at 862 (quoting DeSan-DeSanv. Smith, 634 So.2d 796, 797 (Fla. 4th DCA 1994)). “Accordingly, there is a pre-preof retroactivity which applies un-unthere is a basis for determining that the award should not be retroactive.” Id.

The former husband’s petition requested that the modification be applied retroactively to the date he filed the petition. The court’s supplemental final judgment does not provide its rationale for denying retroactive application. And nothing in the records supports a denial. See Thyrre, 963 So.2d at 862. “Where the circumstances that give rise to a modification of child support exist at the time during which a petition for modification is filed, failure to order the modification retroactive to the date of the filing of the petition constitutes an abuse of discretion.” Spano v. Bruce, 62 So.3d 2, 6 (Fla. 3d DCA 2011); see also Kowal v. Tomlinson, 780 So.2d 172, 173 (Fla. 2d DCA 2001) (holding that trial 'court abused its discretion in failing to order child support retroactive to date of filing where there was no evidence that husband was unable to pay the ordered amount during that period of time). On remand, the trial court should grant the former husband’s request that the modification in child support be retroactive to the date his petition for modification was filed. See Thyrre, 963 So.2d at 862.

Based on the foregoing, we reverse the supplemental final judgment and remand for the trial court to recalculate the parties’ incomes and the former husband’s child support obligation based thereon.

Reversed and remanded.

DAVIS, C.J., and SLEET, J., Concur.


author: KELLY, Judge.

text:
    Suzzann Evans CARD, Appellant, v. Donald L. CARD, Appellee.
    No. 2D11-6307.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2013.
    Mark A. Sessums, Brian Monk, and Lacy J. Littlejohn of Sessums Law Group, P.A., Sebring, for Appellant.
    Cynthia L. Greene of Greene Smith & Associates, P.A., Miami; and Alison B. Copley, P.A., Sebring, for Appellee.
   KELLY, Judge.

Suzzann Evans Card, the Former Wife, appeals from the amended final judgment dissolving her marriage to Donald L. Card, the Former Husband. The only issues presented for our consideration concern attorney’s fees and costs and whether the trial court erred in failing to reserve jurisdiction over the charging lien filed by the Former Wife’s counsel. We affirm the amended final judgment with the following exception.

The Former Wife raises several arguments regarding the propriety of the trial court’s award of attorney’s fees and costs. We dismiss for lack of jurisdiction her challenge to the award because, not only is the amended final judgment ambiguous regarding entitlement, the trial court reserved jurisdiction to determine the amount of fees to be awarded. Because the amount has not been determined, that portion of the amended final judgment is nonfinal and nonappealable. See McIlveen v. McIlveen, 644 So.2d 612, 612 (Fla. 2d DCA 1994) (holding that an order that determines only the right to attorney’s fees without setting the amount is a nonap-pealable, nonfinal order); see also Zuberer v. Zuberer, 28 So.3d 993, 993-94 (Fla. 2d DCA 2010) (affirming the amended final judgment of dissolution of marriage but dismissing as premature the trial court’s ruling only determining entitlement to fees because the issue was “not ripe for appeal” until the trial court determined the amount of the fees to be awarded).

Counsel for the Former Wife also argues that the trial court erred by not reserving jurisdiction in the amended final judgment to address his timely filed charging lien. There is no dispute that counsel filed the notice and claim of charging lien before the original final judgment was entered. Thus, counsel perfected his charging lien by providing timely notice. See Daniel Mones, P.A. v. Smith, 486 So.2d 559, 561 (Fla.1986) (“In order to give timely notice of a charging lien an attorney should either file a notice of lien or otherwise pursue the lien in the original action.”); see also Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383, 1385 (Fla.1983) (“[T]here are no requirements for perfecting a charging lien beyond timely notice.”); Brown v. Vt. Mut. Ins. Co., 614 So.2d 574, 580 (Fla. 1st DCA 1993) (holding that to be “timely” the notice of a charging lien must be filed “before the lawsuit has been reduced to judgment”). Notwithstanding a lack of express reservation of jurisdiction over the charging lien, the trial court is not foreclosed from considering the charging lien in this action because the issue of attorney’s fees and costs has not been finalized and the trial court reserved jurisdiction for that purpose. See Baker & Hostetler, LLP v. Swearingen, 998 So.2d 1158, 1163 (Fla. 5th DCA 2008) (holding that the trial court had jurisdiction to consider a motion to perfect and enforce an attorney’s charging lien where the trial court reserved jurisdiction to determine entitlement and amount of attorney’s fees).

Affirmed in part; dismissed in part.

DAVIS, C.J., and LaROSE, J., Concur.


author: KHOUZAM, Judge.

text:
    Billy CABALLERO-RAYES, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5541.
    District Court of Appeal of Florida, Second District.
    Sept. 20, 2013.
   KHOUZAM, Judge.

Billy Caballero-Rayes appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse.

In summarily denying Caballero-Rayes’s motion as untimely, the postcon-viction court incorrectly relied on the date the judge signed the judgment and sentence — April 26, 2010 — rather than the date it was filed with the clerk of the court-May 3, 2010. See Fla. R.App. P. 9.020(i); Boyd v. State, 106 So.3d 11, 12 (Fla. 2d DCA 2013) (“The relevant date for finality of a sentencing order is the date the written order is filed.”). The record indicates that Caballero-Rayes did not appeal his judgment and sentence, which thus became final on June 2, 2010, thirty days after rendition. See Ramos v. State, 658 So.2d 169, 170 (Fla. 3d DCA 1995). Caballero-Rayes filed his original motion on May 30, 2012, which was within two years of his judgment and sentence becoming final. See Fla. R.Crim. P. 3.850(b). Accordingly, we reverse and remand for consideration of Caballero-Rayes’s allegations on their merits.

Reversed and remanded with instructions.

KELLY and SLEET, JJ., Concur.


text:
    Victoria MARTIN, Appellant, v. CODE ENFORCEMENT, CITY OF JACKSONVILLE and City of Jacksonville Risk Management, Appellees.
    No. 1D13-1344.
    District Court of Appeal of Florida, First District.
    Sept. 23, 2013.
    Holley N. Akers and John J. Rahaim, II, of Rahaim Moore, P.A., Jacksonville, and George D. Rotchford of Rotchford & Be-tancourt, P.A., Jacksonville, for Appellant.
    Scott A. Cole and Brian A. Dominguez of Cole, Scott & Kissane, P.A., Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant argues that the Judge of Compensation Claims (JCC) erred in denying reimbursement of the cost of a conference with Claimant’s authorized treating physician. Because the JCC misapprehended the import of prior case law and the provisions of the Statewide Uniform Guidelines for Taxation of Costs (Uniform Guidelines), we reverse.

After filing a petition for benefits seeking medical care, attorney’s fees, and costs, Claimant’s attorney attended a conference with Claimant’s authorized treating physician. As a result of that conference, the doctor signed a statement that Claimant’s August 26, 2009, injury was, within a reasonable degree of medical probability, the major contributing cause of the Morton’s neuroma present in Claimant’s right foot. The Employer/Carrier (E/C) had previously denied treatment for the neuroma on grounds it was not related to Claimant’s workplace injury.

When the E/C’s independent medical examiner could not opine whether Claimant’s injury was the major contributing cause of her current need for treatment, an expert medical advisor was appointed to resolve the disagreement. The advisor opined that Claimant did not have a neuroma; rather, her workplace injury had resulted in either a chronic plantar place tear or chronic capsulitis, and she was in need of surgery to address the same. Thereafter, the parties agreed that surgery would be scheduled and that Claimant’s attorney was entitled to an E/C-paid attorney’s fee and reimbursement of taxable costs. No depositions were taken by either party.

Following a hearing on Claimant’s verified petition for attorney’s fees and costs, the JCC awarded a fee of $1,500 and costs totaling $164.25. At issue now is the JCC’s denial of the $600 paid to Claimant’s treating physician for the medical conference.

The JCC correctly noted that Florida Administrative Code Rule 60Q-6.124(3)(e) required him to consider the Uniform Guidelines in awarding costs. The JCC mistakenly, however, determined that our decision in Marton v. Florida Hospital Ormond Beach, 98 So.3d 754 (Fla. 1st DCA 2012), preempted an analysis under the Uniform Guidelines when assessing a request for reimbursement of non-deposition fees of physicians because the Uniform Guidelines were not mentioned. Our decision in Marton did not require reference to the Uniform Guidelines.

The JCC also mistakenly noted that the Uniform Guidelines do not specifically address reimbursement of medical conferences. The Uniform Guidelines provide that “expenses relating to consulting but non-testifying experts” should not be taxed as costs. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 617 (Fla.2005). Arguably, this provision would apply in the circumstances presented here — Claimant’s treating physician could be viewed as a “consulting but non-testifying expert.”

We review a JCC’s award and denial of costs under an abuse of discretion standard. See Marton, 98 So.3d at 755. If the above provision applies, then arguably, the JCC’s denial of the reimbursement for the conference could be affirmed using a “tipsy coachman” analysis. See Hernandez v. Palmetto Gen. Hosp., 60 So.3d 1084, 1088 n. 2 (Fla. 1st DCA 2011) (explaining it is not required that legal basis for affirmance be argued by party “because, under the ‘tipsy coachman’ doctrine, the appellate court is required to affirm the lower tribunal if there is any basis in the- record to support the judgment on appeal”) (citing Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999)). We are constrained, however, to reverse and remand this matter for further consideration given the JCC’s agreement “with Claimant’s position that the medical conference was necessary to prosecute or maintain the claim.” While the Unifoi’m Guidelines suggest that such conference costs “should not” be taxed, this provision of the Uniform Guidelines, like all of the provisions, is “advisory only.” In re Amendments, 915 So.2d at 616.

REVERSED and REMANDED for further proceedings consistent with this opinion.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.