text:
    Yvette M. WITHERELL and Natalie M. Witherell, Appellants, v. Chris LARIMER, Appellee.
    No. 5D13-3508.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.
    Angela C. Flowers, of Kubicki Draper, P.A., Ocala, for Appellants.

      Douglas E. Polk, of A Bales P.A., St. Petersburg, for Appellee.
   WALLIS, J.

Yvette Witherell and her daughter, Natalie Witherell (“Appellants”), appeal an order granting Chris Larimer’s (“Appel-lee”) motion for new trial and argue that the trial court abused its discretion by limiting the new trial to only past noneco-nomic damages. Appellants contend that because liability in the personal injury action was hotly contested and the damages award was legally inadequate, the new trial should address both liability and past noneconomic damages. We affirm the trial court’s order because Appellants did not preserve their argument for appellate review.

On July 10, 2010, Natalie drove her mother’s car and struck Appellee while he was crossing the street. During discovery and at trial, both parties vigorously contested liability. Appellee suggested Natalie was inattentive, resulting in her failure to recognize and avoid striking Ap-pellee. Appellants argued that Appellee’s use of alcohol on the night of the accident contributed to the accident and Appellee’s resulting injuries. Both sides presented expert testimony on Natalie’s ability to perceive Appellee and avoid injuring him.

The jury deliberated just over 2.5 hours and found each party 50% at fault. The jury also found that Appellee sustained a permanent injury and awarded past medical expenses totaling $88,749.84. The jury initially awarded $0 for noneconomic damages. The trial judge and counsel for both parties ultimately agreed that the $0 award for noneconomic damages was inconsistent with a finding of permanent injury and the $88,749.84 medical-expense award. Accordingly, the trial court gave an instruction ordering the jury to award money for the noneconomic damages. The jury subsequently awarded $1 for noneco-nomic damages. The trial court dismissed the jury and entered the final judgment.

Appellee filed a motion for additur, or in the alternative, a new trial on past noneco-nomic damages. He argued that the $1 verdict for noneconomic damages was not supported by the evidence in light of the uncontested evidence that he suffered as a result of his injuries and the jury’s finding that Appellee suffered a permanent injury. Appellants’ opposition to the motion for additur or new trial argued only that the trial court should deny the motion for ad-ditur or new trial because the jury’s verdict was correct. Noticeably absent from Appellants’ response to the motion for ad-ditur or new trial was any request that if the trial court were to grant a new trial, the new trial should address both liability and past noneconomic damages.

On September 4, 2013, the trial court denied the motion for additur but granted a new trial on past noneconomic damages. The court found the jury’s award of $0 and then $1 for past noneconomic damages inadequate under section 768.043, Florida Statutes, because of the $88,749.84 award for past medical expenses and the evidence of Appellee’s pain and suffering introduced at trial. On appeal, Appellants raise the single issue that the new trial should also address liability.

“The purpose of the rule requiring preservation of error is to apprise the trial judge of an issue and thus provide the judge with an opportunity to correct any error below.” Pedroza v. State, 773 So.2d 639, 643 (Fla. 5th DCA 2000) (citing Cooper v. State, 742 So.2d 855 (Fla. 1st DCA 1999)). Appellants argue for the first time on appeal that they should be afforded a new trial as to liability. Appellants’ failure to request a new trial on liability denied the trial court the opportunity to exercise discretion or correct this alleged error. Accordingly, because the issue is not preserved, we affirm.

AFFIRMED.

PALMER, J., and LeBLANC, R, Associate Judge, concur.

      . At trial, Appellee conceded he was not seeking a new trial on economic damages or future noneconomic damages.

      . The noneconomic damages were listed as past and future damages for pain and suffering, mental anguish, disability, physical impairment, inconvenience, aggravation of disease or physical defect, or loss of capacity for the enjoyment of life.


source: Caselaw Access Project

author: TORPY, C.J.

license: Public Domain

text:
    ORANGE COUNTY, Florida, Appellant, v. Susan HEWLINGS, an individual, et al., Appellees.
    No. 5D13-3775.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.

      Edward Martin Chew, Senior Assistant County Attorney, Orange County Attorney’s Office, Orlando, for Appellant.
    Michael M. Kest, Esquire, Kest Law, PLLC, Winter Park, for Appellee.
   TORPY, C.J.

We address this four-year-old, public records case for the second time. Appellant violated the public records law, a conclusion that it now admits, but only after the trial court rejected its arguments to the contrary. This appeal, like the first, involves only Appellee’s entitlement to attorney’s fees. We previously concluded that Appellant was responsible for the payment of Appellee’s attorney’s fees, conditioned only on one additional finding by the trial judge. Although the trial judge made that finding and Appellant advances no challenge to that finding, it nevertheless persists in arguing on appeal for the second time that there is no statutory authority for an award of fees for its violation of the public records law. Despite Appellant’s assertion that it is raising new issues, we conclude that it is simply attempting to re-argue what it unsuccessfully argued during the first appeal. We reject Appellant’s arguments once again and impose sanctions for the filing of a frivolous appeal.

Before addressing the merits of this appeal, we are constrained to address the question of our jurisdiction, because the order entered below determined only entitlement to attorney’s fees without setting the amount of those fees. Appellee raised this jurisdictional impediment in her answer brief, citing Ocean Club Community Ass’n v. Curtis, 934 So.2d 522, 523 (Fla. 3d DCA 2005). Rather than address this issue in its reply brief or otherwise, Appellant chose to ignore the jurisdictional issue and forge ahead with its appeal and request for oral argument. At oral argument, Appellant’s counsel cast the blame for this omission on Appellee, stating that he ignored the argument because Appel-lee’s sole authority was a “PCA,” implying that the authority was of no legal significance. Apparently, Appellant’s counsel, who was admitted to the bar in 1977, is unaware of the distinction between a “PCA,” which is an appellate disposition that contains only one word, “Affirmed,” and an opinion of an appellate court that is written for the court, without an identified author, a “per curiam” opinion. The former has no precedential value, whereas the latter does. State Comm’n on Ethics v. Sullivan, 430 So.2d 928 (Fla. 1st DCA 1983). Here, the decision cited by Appel-lee was in the latter category. Besides, even superficial research on this point would have revealed a plethora of decisional law, all of which confirms this fundamental point. We expect lawyers to thoroughly research and address all of the issues that are presented, especially one as important as our jurisdiction.

While we conclude that we are lacking jurisdiction to address the propriety of the order determining entitlement to fees for the trial proceedings, we do have jurisdiction to address that part of the order that determines entitlement to appellate fees for the prior appeal. In the prior appeal, we held that the trial court erred in denying attorney’s fees to Appellee for the services of her attorney in the prior trial court proceeding. We remanded the case for further proceedings. Hewlings v. Orange Cnty., Fla., 87 So.3d 839, 841 (Fla. 5th DCA 2012) (“Hewlings I ”). In a separate order, we conditionally granted appellate fees, “contingent on the trial court finding that the County unreasonably delayed in complying with the document request.” The trial court made this finding on remand. As previously stated, Appellant does not challenge this finding of unreasonable delay. Instead, it makes other challenges to the trial court’s order. Although the form of challenge is a new appeal, we nevertheless have jurisdiction to consider the correctness of this order by treating the appeal as a motion to review the order pursuant to Florida Rule of Appellate Procedure 9.400(c). This rule provides that review of an “order” entered regarding attorney’s fees or costs on appeal should be addressed by motion. The rule does not specify that the “order” under review must be final. Accordingly, we treat this appeal as a motion for review under that rule and address the merits of the lower court’s order, insofar as it determined entitlement to appellate fees for the prior appeal. See Pellar v. Granger Asphalt Paving, Inc., 687 So.2d 282, 284 (Fla. 1st DCA 1997) (court may treat notice of appeal as motion for review under rule 9.400(c)).

The relevant facts of this case are spelled-out in Hewlings I. In a nutshell, Appellee sought records in connection with the investigation of her dog by the county’s animal control division. Appellee made simple, specific, and repetitive requests. After numerous exchanges of communications, Appellant said that it would arrange a time within fourteen days for Appellee to inspect the records and designate those for copying. It outlined a procedure under which Appellee was to inspect the records and designate those she wanted copied. In a facsimile transmittal delivered the very next day, Appel-lee made clear that she did not want to inspect the records; she wanted Appellant to provide copies of all of them. As she had previously done, she offered to pay the costs for the copies and asked for an invoice for the costs. After a period of two weeks without a response, Appellee filed a mandamus petition. In it, she claimed that Appellant had failed to comply with the public records law by not responding to her request for copies with either cost information or the copies themselves. Her prayer for relief was an order directing Appellant to “produce copies of the requested records.”

The trial court granted the petition, ordering Appellant to produce the records within forty-eight hours. Appellant complied with the order and did not challenge the order on appeal. Appellant nevertheless objected to an award of attorney’s fees, arguing that it was not statutorily obligated to pay fees, even though it had violated the public records law. The trial court agreed and denied the request for fees. Appellee appealed that order in Hewlings I.

In its answer brief in Hewlings I, Appellant argued that it was not obligated to pay fees because it never “refused” to comply with the request but simply did not “copy the records as quickly as [Appellee] wanted.” It further argued that, although it is obligated to furnish copies upon request and upon payment of costs, pursuant to section 119.07(4), Florida Statutes, a violation of that provision does not give rise to a claim for fees because the fee statute only authorizes fees when the agency fails to “permit a public record to be inspected and copied.” In other words, Appellant argued that it cannot be held responsible for payment of fees for refusal or delay in furnishing copies provided it “permits” the citizen requesting the record to personally inspect and personally copy the record herself, using her own camera or copy machine.

We rejected both arguments in Hewl-ings I. We held that an unreasonable delay in complying with a request was tantamount to a refusal to comply within the contemplation of section 119.12. Hewlings I, 87 So.3d at 841. Our conclusion was not unprecedented on this point. Office of State Attorney v. Gonzalez, 953 So.2d 759, 765 (Fla. 2d DCA 2007). Citing Woodard v. State, 885 So.2d 444, 445-46 (Fla. 4th DCA 2004), we also rejected Appellant’s second argument that it cannot be required to pay attorney’s fees when it fails to furnish copies.. Hewlings I, 87 So.3d at 840. Our separate order granting appellate attorney’s fees made clear that only one issue was left for further consideration by the trial court — whether there had been an “unreasonable delay” in complying with the request. Appellant did not file a request for clarification or rehearing of either decision and sought no further review.

After remand, the trial court conducted further proceedings and concluded that Appellant had “unreasonably delayed” in complying with the request. Appellant does not now challenge that finding. Instead, it asserts that the finding is of no significance, because the statute does not authorize an award of fees absent a “refusal” by the agency to comply with the public records law. Appellant summarizes its argument in its initial brief as follows: “Even though the trial court agreed with Hewlings that Orange County unjustifiably delayed in making the copies of its public records, there is no authority for the trial court to award attorney’s fees to Hewl-ings.” We are admittedly perplexed by this statement. It is as if counsel for Appellant, who was the same counsel in Hewlings I, slept through the entire prior appellate proceeding and then failed to read either the opinion or order. As it did in Hewlings I, Appellant also argues that attorney’s fees are only authorized when an agency refuses to “permit” inspection and copying, not when it violates its statutory duty to furnish the requested copies. The law-of-the-case doctrine precludes further consideration of either argument. Delta Prop. Mgmt v. Profile Invs., Inc., 87 So.3d 765, 770 (Fla.2012).

Although we reject as factually incorrect Appellant’s contention that it is raising new arguments in this appeal, we would reach the same conclusion even if these were new arguments because they address the same question of law decided in Hewlings I. At the initial hearing on Ap-pellee’s motion for attorney’s fees, Appellant argued that fees were not authorized by the particular statute on which Appellee based her claim. The question of law before us in Hewlings I was whether the statute in question authorized an award of fees on the facts and theory of this case, the theory being that Appellant delayed in furnishing copies of requested records. We held that it does, provided that the delay in compliance was not reasonable. The law-of-the-case doctrine forecloses further consideration of this entire legal question, without regard to whether the identical arguments were previously addressed. Delta Prop. Mgmt., 87 So.3d at 770.

Furthermore, the law-of-the-case doctrine notwithstanding, any new arguments pertaining to the applicability of the statute (except those pertaining to whether the delay was unreasonable) not raised in the initial hearing and during the first appeal are waived. See Lloyd v. State, 876 So.2d 1227, 1228 (Fla. 4th DCA 2004) (statutory construction argument not made in trial court is not preserved for purposes of appeal); Dep’t of Health & Rehabilitative Servs. v. Ledford, 621 So.2d 682, 684 (Fla. 4th DCA 1993) (objections to attorney’s fees not raised are waived); see also Coolen v. State, 696 So.2d 738, 742 n. 2 (Fla.1997) (failure to clearly raise issue in brief is waiver). Absent some extraordinary circumstance, an argument that is waived for purposes of a prior appeal may not be resurrected in a second appeal involving the same parties, same facts, and same subject matter. Indeed, Appellant’s suggestion that it may incrementally dole out its arguments pertaining to the meaning of a single statute in separate appeals borders on ludicrous.

The public records law embodies important public policy. It is designed to provide citizens with a simple and expeditious method of accessing public records. Appellee made a simple request for the records related to the investigation of her dog. She asked for copies of the records and expressed a willingness to pay the costs. Instead of complying with this simple request, Appellant chose to interpose the additional bureaucratic hurdles of forcing her to come to its offices, comb through the records, mark the records in a certain manner, wait for a written estimate of costs, then, after paying the costs, wait again for the records to be mailed to her. This was a violation of the law. Because of Appellant’s actions in this case, which are also in direct contravention of the public policy favoring a simple and prompt resolution of public records requests, this litigation has now spanned four years and involved discovery depositions, other discovery, numerous motions hearings, trials, mediations, and two appeals. To say that Appellant has turned a molehill into a mountain is an understatement. This case provides a textbook example of why the legislature authorized an award of fees against obstinate public entities such as Appellant.

Lastly, we address Appellee’s request for fees for this unnecessary appeal. Appellee filed a motion for sanctions under Florida Rule of Appellate Procedure 9.410. Appellant’s lackadaisical response was as follows: “Appellant relies on its Initial Brief and Reply Brief as a demonstration that the appeal is not frivolous and raises issues not previously decided by this Court.” Having carefully reviewed the briefs, we conclude that Appellant has simply re-argued the same arguments and same legal question that were already presented and decided. Accordingly, we grant the motion and impose as a sanction for this frivolous and abusive appeal an award of attorney’s fees in favor of Appel-lee. The only issue on remand is the amount of the fee, which the trial court shall determine after a hearing. '

In summary, we conclude that the trial court correctly determined the issue of entitlement to fees for the prior appeal, leaving only the issue of the amount for determination after further proceedings. We do not have jurisdiction to decide if the determination of entitlement to fees for the prior trial proceedings is error. We trust, however, that we will not need to revisit these issues for a third time.

MOTION FOR REVIEW DENIED; MOTION FOR SANCTIONS GRANTED AND REMANDED; APPEAL DISMISSED IN PART.

SAWAYA and COHEN, JJ., concur.

      . Ch. 119, Fla. Stat. (2010).

      . Even though this method of addressing a jurisdictional impediment in a brief is not inappropriate, it is preferable that these issues be raised by motion.

      . Ordinarily, we determine entitlement and leave only the amount of fees for determination by the trial judge, so when the case comes back to us for review by motion, all of the trial court’s labor has been concluded. This case is rare because the issue of entitlement was conditioned on an additional finding by the trial judge. Under the unique facts of this case, we conclude that a motion under the rule could have been filed either after the entitlement determination or after the fee amount is determined, although the latter method is preferable.

      . Woodard followed Wootton v. Cook, 590 So.2d 1039 (Fla. 1st DCA 1991). Appellee cited Wootton in her petition. Appellant does not quarrel with the correctness of either decision.

      . This argument strikes us as particularly disingenuous, given the facts here. Appellant finally responded to Appellee with what appears to be a form letter dated June 26, 2010. It dictated a particular "Inspection Process” and ."Copying Process." It prohibited files from being "disassembled.” It required the citizen to mark requested records with "tape flags” and also indicate in a separate "post-it note” if the citizen was requesting ".color toner” be used. At that point, according to the written instructions, Appellant would either mail or fax a cost estimate to the citizen and, upon payment in full, make the copies. In short, nothing in this letter informs the citizen that she is permitted to make her own copies of the records. Indeed, because the disassembly of files (most likely a necessary step in the copying process) is expressly prohibited, the contrary is indicated.

      . This is not a situation like in Delta Property Management where new facts came to light in between the two appeals. Here, all of the facts were before the court at the initial hearing and in the first appeal. The sole legal question was whether, under those facts, fees were authorized. All of the arguments bearing on that legal question should have been raised in the first appeal.


author: EVANDER, J.

text:
    Jose SANTOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-2728.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.

      Jose Santos, Cross City, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

Jose Santos appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 Motion for Postconviction Relief. We conclude that Santos’ first two claims are not conclusively refuted by the record and, accordingly, reverse.

Santos was convicted, after a jury trial, of robbery with a deadly weapon and aggravated battery with a deadly weapon. His convictions were per curiam affirmed by this court. Santos v. State, 66 So.3d 949 (Fla. 5th DCA 2011).

In his postconviction motion, Santos alleged that his trial counsel was ineffective for failing to investigate, interview, and present the testimony of Ms. Donella and Ms. Garcia. These potential witnesses would allegedly have testified that the victim had told them that Santos was not the individual who had attacked and robbed him. Santos further claimed that he had made his attorney aware of these potential witnesses and their anticipated testimony prior to trial.

The record reflects that the victim had identified Santos in a pretrial photo array, but equivocated in his identification of Santos at trial. The State suggests that the testimony of these two aforementioned witnesses would have been cumulative to the victim’s testimony. We disagree. Equivocal identification testimony at trial is materially different from an outright recantation of a prior identification.

We also reject the State’s argument that the record established that defense counsel’s failure to call these -witnesses was a reasonable trial strategy. The failure to call a witness can constitute ineffective assistance of counsel if the witness might be able to cast doubt on the defendant’s guilt. Gutierrez v. State, 27 So.3d 192, 194 (Fla. 5th DCA 2010). Although defense counsel is entitled to broad deference regarding trial strategy, a finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. Hamilton v. State, 860 So.2d 1028, 1029 (Fla. 5th DCA 2003).

REVERSED and REMANDED for an evidentiary hearing.

COHEN and WALLIS, JJ„ concur.

      . Santos did not appeal from the denial of his other claims raised in the motion.


author: PER CURIAM.

text:
    William JOHNROE, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-654.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Kaylee D. Tatman, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant was found guilty of aggravated battery upon a law enforcement officer. As part of the investigation leading up to the trial, Appellant provided a recorded statement. The State moved to redact certain portions of the statement dealing with Appellant’s mental illness and the medication he was taking at the time of the statement for treatment of his mental illness. In support of its argument to redact, the State claimed that the portions of Appellant’s statements relating to mental illness were irrelevant to the facts of the case. Appellant argued, the evidence of his illness would be relevant to his contention that his custodial statement had been involuntary as a result of his medication and illness. ■ The trial court granted the State’s motion and played the redacted audiotape for the jury. We find this is error and reverse and remand for a new trial.

Appellant’s defenses to the charge were that: (1) someone else committed the crime, and (2) Appellant had been coerced into confessing to a crime he did not commit. By granting the State’s motion to redact a .portion of Appellant’s statement, the court denied Appellant the benefit of his theory of defense.

Morrison v. State, 855 So.2d 693, 694 (Fla. 3d DCA 2003), has similar facts to this case. In Morrison, the State introduced a voluntary confession, but over the defense’s proper objection, the trial court permitted the State to selectively redact those portions of Morrison’s statement referring to his mental illness and to his being on medication for a mental illness at the time he committed the crime. Id. The court found the redaction was not harmless error because the content and context of the entire statement was directly related to Morrison’s state of mind at the time of the offense. Id.

Redacting portions of Morrison’s statement precluded the jury from considering all of the relevant evidence necessary to establish the element of intent required by the crime charged, as well as the crime for which Morrison was eventually found guilty. Id. Morrison is similar to this case in that the jury did not have the benefit of Appellant’s entire statement, including that portion related to his mental illness and the medication that he was taking. The redacted portion relates directly to the voluntariness of the statement. The jury was properly instructed on the effect of the statement, but it only had a portion of the statement and could not evaluate the “totality of the circumstances” as required by the law. Also, the rule of completeness as set forth in section 90.108(1), Florida Statutes (2012), requires that all portions of Appellant’s statements should be provided contemporaneously to the jury, not just those that benefit the State. See Ramirez v. State, 739 So.2d 568, 580 (Fla.1999); see also Swearingen v. State, 91 So.3d 885, 886 (Fla. 5th DCA 2012).

Redacting portions of Appellant’s recorded statement requires reversal, and the case is remanded for a new trial.

REVERSED and REMANDED.

TORPY, C.J., LAWSON, J. and JACOBUS, B.W., Senior Judge, concur.


author: DAVIS, Chief Judge.

text:
    Jathniel Jordan McMICHAEL, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4340.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.
    Charles A. Green, Jr. of Law Offices of Charles A. Green, Jr., P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Chief Judge.

Jathniel Jordan McMichael challenges his convictions and sentences for home invasion robbery, sexual battery, and battery on a person sixty-five years of age or older. We affirm his convictions and consecutive thirty-year prison sentences for home invasion robbery and sexual battery without further comment. We reverse only the reclassification of the battery conviction based on the victim’s age and the resulting five-year sentence.

The State correctly concedes that no evidence was introduced at trial to show the victim was at least sixty-five years of age at the time of the battery, a required statutory element that must be established in order to enhance a misdemeanor battery to a third-degree felony pursuant to section 784.08(2)(c), Florida Statutes (2006). Cf. Cochran v. State, 622 So.2d 166, 167 (Fla. 2d DCA 1993) (reversing a conviction under an earlier version of section 784.08(2)(b) for aggravated battery on a person sixty-five years of age or older where the State failed to prove that the defendant knew of the victim’s age and noting that the legislature subsequently amended the statute in 1992 to remove the knowledge requirement, thereby leaving only the requirement that the State show the victim was over the requisite age for the statutory enhancement to apply).

We note that the State may rely on circumstantial evidence such as the testifying victim’s appearance, cf. Smith v. State, 650 So.2d 689, 691 (Fla. 3d DCA 1995), or evidence of dates of marriage or ages of children from which an inference of age would necessarily follow, cf. State v. Surin, 920 So.2d 1162, 1164-65 (Fla. 3d DCA 2006), to establish the victim’s age for the purposes of the reclassification statute. However, the instant record is silent on the existence of similarly sufficient circumstantial evidence in this case because, as the State candidly concedes, the trial court relied on the mistaken belief that the victim testified about her age in denying the motion for judgment of acquittal on this issue. We therefore reverse the conviction for battery on a person sixty-five years of age or older and remand for the entry of a judgment that instead reflects a conviction for the offense of simple battery. The trial court should also resentence McMi-chael based on the amended conviction.

Affirmed in part, reversed in part, and remanded.

LaROSE and MORRIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    David Winston JACOBS, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-2376.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.

      Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

David Winston Jacobs appeals the denial of his Motion for Discharge for Violation of Constitutional Speedy Trial Right. Because the record contains insufficient information for us to fully decide the issue, we reverse and remand for further proceedings.

Jacobs allegedly sold crack cocaine to an undercover police officer on November 8, 2011. On March 7, 2012, a warrant was issued for Jacobs’s arrest, and an information was filed on March 20, 2012, charging him with delivery and possession of cocaine. On January 3, 2013, Jacobs was arrested for these crimes, and a trial was set for the week of April 29, 2013. On April 18, 2013, Jacobs moved for discharge due to violation of his constitutional speedy trial right, and a hearing was held on April 23, 2013. At the hearing, the State presented evidence that Jacobs had moved at least three times during the period between the filing of the information and when Jacobs was ultimately arrested. The trial court denied the motion and Jacobs pleaded guilty, reserving the right to appeal the denial of his motion.

In determining whether a defendant’s constitutional right to a speedy trial has been violated, this court considers four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) the prejudice to the defendant. Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). The first factor acts as a triggering mechanism; if the delay is not so long as to be presumptively prejudicial against the defendant, then this court need not even consider the remaining factors. State v. Stuart, 115 So.3d 420, 424 (Fla. 2d DCA2013).

For the first factor, the right to speedy trial attaches “at the time of arrest or indictment, whichever comes first.” Howell v. State, 418 So.2d 1164, 1167 (Fla. 1st DCA 1982). As such, Jacobs’s right to speedy trial attached on March 20, 2012, when the State filed an information charging him with possession and delivery of cocaine. The delay in this case between the filing of the information and the date set for trial amounts to approximately thirteen-and-a-half months, which is presumptively prejudicial. Cf. State v. Union, 469 So.2d 840, 841 (Fla. 2d DCA 1985) (finding a fifteen-month delay presumptively prejudicial); Howell, 418 So.2d at 1171 (finding a fourteen-and-a-half-month delay presumptively prejudicial); but see State v. Borges, 467 So.2d 375, 378 (Fla. 2d DCA 1985) (finding an eight-and-a-half-month delay is not presumptively prejudicial); United States v. Maizumi, 526 F.2d 848, 851 (5th Cir.1976) (finding a ten-and-a-half-month delay is not presumptively prejudicial). Because we hold that the length of this delay was presumptively prejudicial, a full Barker analysis is required. See Stuart, 115 So.3d at 424.

However, we are unable to properly evaluate the remaining factors given the record in this case. The second factor requires an evaluation of the reason for the State’s delay in prosecuting the case. There are three categories of reason for delay by the State: deliberate, negligent, and justified. State v. Roundtree, 438 So.2d 68, 71 (Fla. 2d DCA 1983). The burden to explain the cause of the delay rests exclusively on the State. Niles v. State, 120 So.3d 658, 664 (Fla. 1st DCA 2013). In the present case, the State introduced evidence showing that Jacobs had at least three different addresses during the period between when the information was filed and when he was arrested. However, the State never demonstrated whether this was truly problematic, and what, if any, impact this had on delaying prosecution. Furthermore, there was no evidence presented at the hearing to establish whether any attempt was ever made to arrest Jacobs or otherwise prosecute the case during this time period. Absent such information, we are unable to determine whether the State’s delay in effectuating arrest was deliberate, negligent, or justified, and thus what weight to give the second factor. See id. (“[I]f the government deliberately tries to impede the defense, this factor will weigh heavily against the government, whereas negligence on the government’s part ‘should be weighted less heavily .... ’ When there is a valid reason for the delay, such as when a defendant intentionally evades detection, such a delay is justified.” (quoting Barker, 407 U.S. at 531, 92 S.Ct. 2182)). The mere fact of Jacobs moving three times during the relevant timeframe, standing alone, was insufficient to overcome the constitutional presumption of prejudice.

Without knowing what weight to give the second factor, we cannot determine what showing is required for the keystone factor, prejudice to the defendant. See Seymour v. State, 738 So.2d 984, 986 (Fla. 2d DCA 1999) (holding that prejudice to the defendant need not be demonstrated where the first three factors weigh heavily in favor of the defendant). As such, we cannot complete the analysis required by Barker and must remand for an evidentia-ry hearing to fully develop the State’s reason for delay.

Reversed and remanded with instructions.

ALTENBERND and KHOUZAM, JJ., Concur.

      . It is undisputed that Jacobs asserted his right to a speedy trial, thus satisfying the third factor.


text:
    Edward James HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3008.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.

      Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Johnny T. Salgado, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Edward James Howard appeals his conviction and sentence for robbery with a firearm. Because the State improperly bolstered its witness and made improper arguments during closing argument that amounted to fundamental error, we must reverse his conviction and remand for a new trial.

Howard was arrested following an armed robbery that occurred in a motel parking lot in the early morning hours of December 6, 2012. Armed with a firearm, Howard’s codefendant, Darrek Battle, committed the robbery and then got into a car that Howard was driving. After leading police on a high-speed chase, Howard crashed his car and both defendants were arrested. During his interview with police, Battle stated that he did not have a gun during the robbery but was instead holding a screwdriver. Battle eventually made a full confession and ultimately pleaded guilty.

Howard was charged with armed robbery, fleeing to elude, and driving with a suspended license. During Howard’s trial, the State called Battle as a witness. Battle testified that he had committed the robbery at Howard’s insistence, that the robbery took place at a motel, that he used a gun that he had gotten from Howard and a ski mask in committing the robbery, and that Howard acted as the getaway driver. Battle also testified on direct examination that he had lied to police officers during his initial interview about not having a gun. The State inquired:

[STATE]: You lied to them? What do you mean you lied to them?
[BATTLE]: I just was telling them anything.
[STATE]: Why did you tell them anything?
[BATTLE]: I don’t know. I just—
[STATE]: Let’s be clear. Let’s be clear about what you did tell them. Did you tell them that you were in the parking lot of the motel when the robbery occurred?
[BATTLE]: Yes, sir.
[STATE]: Did you tell them that you were in the car that crashed?
[BATTLE]: Yes, sir.

Defense counsel objected to this line of questioning and argued that the State was improperly bolstering its witness. The trial court overruled the objection, and the questioning continued:

[STATE]: All right Mr. Battle, you said you lied. Did you lie about the fact that you were at the hotel?
[BATTLE]: No, sir.
[STATE]: Did you lie about the fact that you were in the car that eventually was in the crash?
[BATTLE]: No, sir.
[STATE]: Did you lie about the fact that Mr. Howard was in the car with you?
[BATTLE]: No, sir.
[DEFENSE]: Objection; leading.
[THE COURT]: Sustained; rephrase.
[STATE]: Did you tell them if someone was with you during the time of the robbery?
[BATTLE]: Yes, sir.
[STATE]: Who did you tell them was with you?
[BATTLE]: Mr. Howard.
[STATE]: Okay. Did you tell them that you committed a robbery?
[BATTLE]: Yes, sir.
[STATE]: Did you tell them that you were successful in gaining property from the victim?
[BATTLE]: Yes, sir.
[STATE]: Did you tell them that you wore a ski mask?
[BATTLE]: Yes, sir.
[STATE]: Did you tell them that you had a gun?
[BATTLE]: Yes, sir.
[STATE]: You told them you had the gun?
[BATTLE]: Yes, sir.
[STATE]: Did you tell them that initially? Did you, right out of the gate, say “I have a gun”?
[BATTLE]: No, sir.
[STATE]: Is that one of the things you lied about?
[BATTLE]: Yes, sir.
[STATE]: What did you say initially?
[BATTLE]: I told them that I had a screwdriver.
[STATE]: You never had a screwdriver; did you?
[BATTLE]: No, sir.
[STATE]: You only had the gun?
[BATTLE]: Yes, sir.
[STATE]: Mr. Battle, you lied once before to the police. Are you lying today?
[BATTLE]: No, sir.
[DEFENSE]: Objection, Your Honor; improper question.
[THE COURT]: Overruled.
[STATE]: Why should this jury believe you today?
[DEFENSE]: Objection, Your Honor; improper bolstering.
[BATTLE]: Because—
[THE COURT]: Haven’t heard the answer yet. Overrule the objection.
[BATTLE]: I lied to the police because I never been in trouble. So I thought that I would have got a little leeway. I see that it’s a serious charge so I might have owned up to it instead of trying to keep lying about it and keep fighting it.

At closing argument, one of the major points of contention between the two parties was Battle’s role in testifying for the State and whether Battle was going to receive leniency for being a witness. The defense also raised the question of Battle’s veracity. In rebuttal, the State argued:

Lawyers are like magicians.' And if Ms. Shane is to be believed, I’m an amazingly good one. A magician gets you to look at the left hand while the right hand is doing something. A magician gets you to believe that something is true even though your rational mind tells you there’s no way it could be. And if you’re listening to Ms. Shane and you’re believing her, you believed that what’s happening here is that I, as a representative of the State and the attorney assigned to this case, have just perpetrated an amazing fraud on everyone who sat here and watched this entire trial. Know there are documents with my name and my bar number and the bar number of another attorney and his signature signed on them, we have said that there is no deal that there is no benefit to be given to Mr. Battle, and yet there is. And though it is very clear from the evidence that the only person at the end of the day who has any decision making power as to what happens with Mr. Battle is the judge and not me. There’s somehow some amazing magic trick going on and you’ve all been duped.
But-1 would suggest to you that lawyers are like magicians, but that the magician in this case is not me it’s Ms. Shane.
... You need to just look at things and ask yourself what’s happening in the real world and what really happened in this case. And what’s happening is that over and over magician Ann Shane is getting you to look at the left hand because she doesn’t want you to look at the right....
But again, look at the left hand; please, God, don’t look at the right because if you look at the right your guts [sic] only going to tell you one thing and that’s guilty.

The State also implored the jury “to not fall for the magic trick.” The jury ultimately returned a verdict of guilty on all counts.

Howard argues on appeal that the trial court abused its discretion by allowing the State to introduce Battle’s prior consistent statements on direct examination in an effort to preemptively bolster Battle’s testimony. Further, Howard contends that the State’s closing argument denied him a fair trial because the State disparaged defense counsel and referred to materials not in evidence that also improperly bolstered Battle’s credibility. While either error may have required reversal on its own, acting in concert, these errors indubitably denied Howard a fundamentally fair trial. Hence, we need not analyze whether either error on its own would reqúire a new trial under the facts of this case.

On the first issue, prior consistent statements are generally inadmissible hearsay and cannot be used solely to corroborate or bolster a witness’s testimony. Tumblin v. State, 29 So.3d 1093, 1100 (Fla. 2010). Prior consistent statements are admissible nonhearsay when the declarant is available to testify at trial and is subject to cross-examination and when the statement is “offered to rebut an express or implied charge against the declarant of improper influence, motive, or recent fabrication.” § 90.801(2)(b), Fla. Stat. (2013). However, “[t]here must be an initial attempt on cross-examination to demonstrate the improper influence, motive or recent fabrication” before prior consistent statements may be admitted under this exception. Foburg v. State, 744 So.2d 1175, 1179 (Fla. 2d DCA 1999) (quoting Jenkins v. State, 547 So.2d 1017, 1020 (Fla. 1st DCA 1989)).

Here, Battle testified that he was in a car with Howard and that he had committed a robbery in the motel parking lot prior to being arrested. Following this testimony, the State asked Battle whether these were facts that he had told police during his prior interview, and Battle confirmed that they were. The purpose of this line of questioning was to show that Battle had previously told police the same facts that he was testifying to at trial, which is exactly the type of evidence that is prohibited by the hearsay rule on prior consistent statements. And while the State properly argues that prior consistent statements may be used to rehabilitate a witness, the State in this case introduced Battle’s prior statements on direct examination before Howard had the opportunity to cross-examine. Of course, the State’s target strategy was to lessen the impact of Battle’s prior claim that a screwdriver, instead of a gun, was used during the robbery. As a result, the State’s solicitation of Battle’s prior consistent statements was deliberately premature and had the unfortunate effect of impermissibly bolstering Battle’s testimony.

On the second issue, the State also committed error by making several highly improper comments during its closing argument. Closing argument is not intended to be an unfair display of glib oratory skills that impugn opposing counsel or bolster a witness’s testimony; an attorney is limited to “assisting] the jury in analyzing, evaluating, and applying the evidence.” Williamson v. State, 994 So.2d 1000, 1012 (Fla.2008). For example, and germane to this end, it is error for an attorney to bolster the testimony of a witness during closing argument by vouching for his or her credibility, providing an opinion on the witness’s truthfulness, referring to information outside of evidence that would support the witness’s testimony, or otherwise placing “the prestige of the government behind the witness.” Hutchinson v. State, 882 So.2d 943, 953 (Fla.2004), abrogated on other grounds by Deparvine v. State, 995 So.2d 351 (Fla.2008). It is also improper to make any statement during closing argument that denigrates defense counsel or the defense strategy, Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002), including any comments made to suggest that the defense is attempting to perpetuate a fraud on the jury, Kennerdy v. State, 749 So.2d 507, 507 (Fla. 2d DCA 1999).

Here, the State made several comments referring to defense counsel as a magician and implying that magicians are fraudulent and “dupe” people. Contrary to the State’s assertions on appeal, these comments go beyond merely referring to defense counsel as a skilled tactician but instead suggest that she was relying on deceit to magically trick the jury into deciding in favor of the defendant. Notably, comments that “impugn the integrity or credibility of opposing counsel” are fundamental error by themselves. Wicklow v. State, 43 So.3d 85, 88 (Fla. 4th DCA 2010).

In addition, during both trial and closing argument, there was a great deal of dispute over whether Battle’s testimony could be believed in light of the fact that he was a codefendant testifying for the State. Whether Battle was to receive leniency in his own sentencing was a major point of contention between the parties. For the State to argue at closing that there were “documents with [the prosecutor’s] name and [the prosecutor’s] bar number ... and his signature signed on them” that showed Battle was not receiving a deal for his testimony was a grossly improper reference to information not in evidence that had the calculated effect of bolstering Battle’s testimony after the fact.

Also, and contrary to the State’s assertion on appeal, Howard’s conviction was dependent in large part on Battle’s testimony. Battle testified that Howard handed him the gun, told him to commit the robbery, and was otherwise an active participant in the crime. The only other evidence suggesting Howard had any involvement at all came from the victim’s testimony that a car pulled up next to Battle after the robbery had already occurred, that Battle got into the ear, and that the two drove away, none of which is sufficient to show Howard had the requisite mental state to be charged as a principal for the armed robbery. See Staten v. State, 519 So.2d 622, 624 (Fla.1988) (“[M]ere presence at the scene ... or a display of questionable behavior after the fact, is not sufficient to establish participation [as a principal].”).

Even more troubling are the State’s assertions to the jury that “there is no benefit to be given to Mr. Battle” for his testimony and that only the trial court could decide whether Battle would receive leniency. This is belied by the State later waiving, at Battle’s sentencing, the ten-year mandatory minimum in exchange for Battle having testified against Howard. This also confirmed the hollowness in the State telling the jury that “the only person at the end of the day who has any decision making power as to what happens with Mr. Battle is the judge.”

Because Howard did not object to any of the State’s improper comments during closing argument, this court must find fundamental error to reverse. See Kilgore v. State, 688 So.2d 895, 898 (Fla.1996). Fundamental error is “error that reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. (alteration in original) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)) (internal quotation marks omitted). Because the State’s comments during closing argument had the effect of bolstering Battle’s testimony on critical facts on which the State’s case relied, this improper commentary constituted fundamental error.

While any of the aforementioned errors on their own could arguably be used to overturn Howard’s conviction, there is no doubt that the errors committed at Howard’s trial cumulatively necessitate a new trial. Accordingly, we reverse and remand for a new trial.

Reversed and remanded.

DAVIS, C.J., and CASANUEVA, J., Concur.


author: CRENSHAW, Judge.

text:
    Albert MARCHMAN, Appellant, v. ST. ANTHONY’S HOSPITAL, INC., Appellee.
    No. 2D13-3827.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.

      Matthew W. Dietz of Law Offices of Matthew W. Dietz, P.L., Miami, for Appellant.
    Scott T. Silverman of Akerman, LLP, Tampa, for Appellee.
   CRENSHAW, Judge.

Albert Marchman is a deaf man who does not speak. He was admitted to St. Anthony’s Hospital for heart problems but at no point was he provided a sign language interpreter. Subsequently, Marchman filed an action with the Florida Commission on Human Relations alleging discrimination based on physical disability in contravention of the Florida Civil Rights Act of 1992, §§ 760.01-.il; § 509.092, Fla. Stat. (2012) (FCRA). Because we conclude that the Commission did not err in holding that it lacked jurisdiction over hospitals even if they had coffee shops, vending machines, and cafeterias within them, we affirm.

In this case, the action was abated as a similar case was then pending in the First District Court of Appeal. See Mena v. Lifemark Hosp. of Fla., Inc., 109 So.Sd 787 (Fla. 1st DCA 2013) (unpublished table decision) (Mena II). In Mena v. Lifemark Hospitals of Florida, Inc., 50 So.3d 759 (Fla. 1st DCA 2010) (Mena I), Ms. Mena, also a deaf person to whom a sign language interpreter was not assigned, recognized that the hospital, as a hospital, was not regulated under FCRA. Instead she argued that because within the hospital there was an establishment covered by FCRA, namely the hospital cafeteria, the hospital was transformed into a covered establishment. Id. She relied on section 760.02(11), Florida Statutes, which defines as a public accommodation “any establishment ... within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.” Id. at 761. The First District concluded that the Commission failed to make findings of fact as to whether the hospital held itself out as serving patrons of the cafeteria and remanded for the Commission to do so. Id. Ultimately, on remand, the Commission found that the hospital was not holding itself out as serving patrons of the cafeteria, thus leaving the hospital outside the ambit of FCRA. On subsequent appeal to the First District, the court affirmed without a written opinion. Mena II, 109 So.3d 787.

FCRA is largely based on Title VII of the federal Civil Rights Act of 1964. Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 895 (Fla.2002); cf. § 760.11 (“It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.”). We “recognizef ] that if a state law is patterned after a federal law on the same subject, the Florida law will be accorded the same construction as in federal courts to the extent the construction is harmonious with the spirit of the Florida legislation.” Winn-Dixie Stores, Inc. v. Reddick, 954 So.2d 723, 728 (Fla. 1st DCA 2007) (quoting O’Loughlin v. Pinchback, 579 So.2d 788, 791 (Fla. 1st DCA 1991)). However, the Florida Supreme Court has recently reaffirmed that

[t]o discern legislative intent, a court must look first and foremost at the actual language used in the statute. Moreover, a statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts. When reconciling statutes that may appear to conflict, the rules of statutory construction provide that a specific statute will control over a general statute....

Fla. Virtual Sch. v. K12, Inc., 148 So.3d 97, 101-02 (Fla.2014) (emphasis added) (citations omitted) (internal quotation marks omitted); see also Doe v. Dep’t of Health, 948 So.2d 803, 808 (Fla. 2d DCA 2006) (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.” (citing Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992))).

Under FCRA:

“Public accommodations” means places of public accommodation, lodgings, facilities principally engaged in selling food for consumption on the premises, ... and other covered establishments. Each of the following establishments which serves the public is a place of public accommodation within the meaning of this section:
(b) Any restaurant, cafeteria, lunchroom, lunch counter, soda fountain, or other facility principally engaged in selling food for consumption on the premises....
(d) Any establishment which is physically located within the premises of any establishment otherwise covered by this subsection, or within the premises of which is physically located any such covered establishment, and which holds itself out as serving patrons of such covered establishment.

§ 760.02 (emphases added). Section 509.013 reads:

(5)(a) “Public food service establishment” means any building, vehicle, place, or structure, or any room or division in a building, vehicle, place, or structure where food is prepared, served, or sold for immediate consumption on or in the vicinity of the premises; called for or taken out by customers; or prepared prior to being delivered to another location for consumption.
(b) The following are excluded from the definition in paragraph (a):
L Any eating place maintained by a facility certified or licensed and regulated by the Agency for Health Care Administration or the Depart ment of Children and Family Services or other similar place that is regulated under s. 381.0072.

(Emphasis added). Marchman argues that based on section 760.02, particularly as discussed by Mena I, we should hold that because St. Anthony’s has an onsite cafeteria, coffee shop, and vending machines covered by FCRA, St. Anthony’s itself is governed by FCRA. But to read section 760.02 in the way that Marchman beseeches requires that we turn a blind eye to the text of section 509.013. The latter section specifically excludes from its definition eating places maintained by facilities certified or licensed and regulated by the Agency for Health Care Administration (AHCA). § 509.013(5)(b)(4). And because the latter provision is more specific, to give it effect does not do harm to the remainder of the statute. True, section 760.02 is written to cast a wide net, as is its federal counterpart. But we must still give effect to the Legislature’s other dictates. Moreover, to the extent public policy is a factor, giving effect to the latter provision effectuates a policy of not having hospitals doubly regulated: first by AHCA and second by the Commission. We note that our decision is in accord with the Third District’s recent opinion on like facts and based on similar reasoning. See Crane v. Lifemark Hosp. of Fla., Inc., 149 So.3d 718, 721 n. 2 (Fla. 3d DCA 2014).

Because the Commission correctly dismissed the action for lack of jurisdiction, we affirm.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . Mena did not refer to the statute year but the statute has not been amended since 2003.

      . Like the Third District in Crane v. Lifemark Hospital of Florida, Inc., 149 So.3d 718, 721 n. 2 (Fla. 3d DCA 2014), we do not reach the issue of whether "a covered cafeteria within a hospital would cause the hospital to qualify as a ‘covered establishment.' ”


author: SILBERMAN, Judge.

text:
    Brandon D. PORTER, Appellant, v. Nichole L. PORTER, Appellee.
    No. 2D13-4224.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.

      Joseph J. Registrato, Tampa, for Appellant.
    Seth R. Nelson and Kathryn M. Ashley of Seth R. Nelson, P.A., Tampa, for Appel-lee.
   SILBERMAN, Judge.

Brandon D. Porter, the Husband, seeks review of the final judgment of dissolution of his marriage to Nichole L. Porter, the Wife. The Husband challenges the equitable distribution of the parties’ 2007 GMC Acadia, the court’s decision to allow the parties’ youngest child to be placed in daycare, and the imputation of income to the Husband. We reject the Husband’s challenges to the daycare decision and the imputation of income without further discussion. However, we reverse the equitable distribution scheme because the trial court erred in refusing to enforce the parties’ stipulation that the Acadia and its considerable debt would be distributed to the Wife.

Prior to the final hearing on the petition for dissolution, the parties had stipulated to the equitable distribution of many of their assets and liabilities. As for the 2007 GMC Acadia, they stipulated that it had a debt of $14,363 and that it would be distributed to the Wife. They disagreed as to its value. At the final hearing on May 9, 2013, the Wife testified that the Acadia was worth $7500, and the Husband argued that it was worth $8215. The parties also owned a 2006 Chevy Malibu that had a debt of $5653. The Wife claimed it was worth $4900, and the Husband asserted it was worth $7146. Both parties requested distribution of the Malibu.

The trial court did not rule at the final hearing but scheduled a telephonic hearing for the next month for purposes of ruling. At the onset of the hearing, counsel for the Wife informed the court that the value of the Acadia, which the Wife had been driving, had decreased since the final hearing. Counsel asserted that the vehicle’s engine and transmission had “now been totally blown and damaged, and the car basically is only worth scrap of $1,000.” Counsel for the Wife requested that the court distribute the Acadia and the debt to the Husband and distribute the Malibu to the Wife. Counsel for the Husband objected and reminded the court that the parties had stipulated that the Acadia would be distributed to the Wife. Counsel for the Husband alternatively requested that the court adjust the value of the Acadia to $1000 so the Husband’s asset number was not inflated.

In the final equitable distribution scheme the parties’ debt, which exceeded their assets, was equally distributed between the parties. The court distributed the Acadia and its debt to the Husband and distributed the Malibu and its debt to the Wife. The court declined to adjust the value of the Acadia without any testimony under oath. Instead, it valued the Acadia and the Malibu using the Wife’s figures. On appeal, the Husband argues that the court’s distribution of the Acadia and its debt was not supported by competent, substantial evidence. He argues that the court ignored the parties’ stipulation regarding distribution of the Acadia based on facts not in evidence but refused to consider those “facts” when valuing the vehicle.

Stipulations regarding equitable distribution that are properly entered into are binding on the court as well as the parties. See Yeakle v. Yeakle, 12 So.3d 884, 885-86 (Fla. 4th DCA 2009); Lift v. Lift, 1 So.3d 259, 261 (Fla. 4th DCA 2009). As for the valuation of the Acadia, that was not part of the parties’ stipulation and was the subject of trial testimony. The later unsworn representation by the Wife’s counsel that the value of the Acadia had decreased from $7500 to $1000 between the time of the final hearing and the telephonic hearing was not a sufficient basis on which to revalue the vehicle. See Aziz v. Aziz, 45 So.3d 975, 978 (Fla. 2d DCA 2010). Thus, the court correctly declined to revalue the vehicle on this basis. But there is no dispute that the parties properly entered into the stipulation regarding the equitable distribution of many of their assets and liabilities. As a result, the trial court erred in refusing to enforce that portion of the stipulation that provided the Acadia and its associated debt would be distributed to the Wife.

Accordingly, we reverse the equitable distribution scheme and remand with directions for the court to distribute the Acadia and its associated debt to the Wife. On remand, the court should also refashion those portions of the equitable distribution scheme to which the parties did not stipulate to effect as equal a distribution of the parties’ debt as possible. See § 61.075(1), Fla. Stat. (2012). To this end, the court in its discretion may take further evidence. The final judgment of dissolution is otherwise affirmed.

Affirmed in part, reversed in part, and remanded.

KELLY and BLACK, JJ„ Concur.


text:
    Oscar R. DIAZ and Betzaida Martinez, Appellants, v. TOWER HILL PRIME INSURANCE COMPANY, Appellee.
    No. 2D14-468.
    District Court of Appeal of Florida, Second District.
    Dec. 12, 2014.

      Laura Datz, Michael V. Laurato, and Erin Dunnavant of Austin & Laurato, P.A., Tampa, for Appellants.
    Kara Berard Rockenbach of Methe & Rockenbach, P.A., West Palm Beach, for Appellee.
   VILLANTI, Judge.

Appellants Oscar R. Diaz and Betzaida Martinez seek review of a final judgment granting summary judgment to Tower Hill Prime Insurance Company. We reverse.

Tower Hill insures a piece of real property jointly owned by the appellants, which policy includes coverage for sinkhole damage. On or about March 8, 2010, the appellants noticed damage to their property and filed a claim with Tower Hill. After inspecting the property in compliance with section 627.707, Florida Statutes (2010), Tower Hill determined that the damage was not caused by sinkhole activity and subsequently denied the claim. The appellants then hired their own investigator, who concluded in a report issued August 24, 2011, that the damage was caused by sinkhole activity. On March 1, 2012, the appellants filed a claim against Tower Hill for breach of contract due to its denial of their claim for sinkhole damage. In September 2012, Tower Hill requested a neutral evaluation, and the appellants delivered the previously obtained but undisclosed report stating that the damage was caused by a sinkhole. Rather than proceeding with the neutral evaluation, Tower Hill moved for summary judgment on the basis that the appellants had concealed a material fact in violation of the policy by not disclosing this report. The court granted summary judgment, finding that Tower Hill had the right to deny all coverage under the terms of the policy due to the appellants’ failure to disclose this report.

However, this same argument was recently rejected by this court in Herrera v. Tower Hill Preferred Insurance Co., which involved an identical policy provision to the one cited by Tower Hill. — So.3d—, 2014 WL 5461969, 39 Fla. L. Weekly D2257 (Fla. 2d DCA Oct. 29, 2014) (finding that the plaintiffs failure to disclose a contradictory report to Tower Hill before filing suit did not constitute concealment barring coverage). Applying that ruling here, we reverse the final summary judgment in favor of Tower Hill.

Reversed and remanded for further proceedings.

ALTENBERND and CASANUEVA, JJ., Concur.


author: THOMAS, J.

text:
    James S. WINDER, Former Husband, Appellant, v. Dian A. WINDER, Former Wife, Appellee.
    No. 1D13-4658.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.

      Justin D. Jacobson of the Law Office of Richard M. Knellinger, P.A., Gainesville, for Appellant.
    J. Mark Dubose, Jr. and Karen S. Yo-chim of Alba & Dubose P.A., Gainesville, for Appellee.
   THOMAS, J.

Appellant (“the Husband”) appeals the final judgment of dissolution of marriage, raising three issues on appeal. The Husband asserts that the trial court erred in: (1) including funds in the equitable distribution scheme that the Husband obtained from two marital retirement accounts, when these funds were used for the payment. of living expenses and temporary support, asserting there was no evidence that these funds were dissipated as a result of misconduct; (2) awarding the Wife permanent alimony without proper support for the award; and (3) awarding the Wife a portion of her attorney’s fees without proper support for the award. We reverse the final judgment and remand for further proceedings consistent with this opinion.

The parties were married in 2000, and the Husband filed his petition for dissolution in 2011. At the time of trial, the Husband was 59 years old and the Wife was 56 years old. The parties had no minor children from the marriage.

Equitable Distribution

In its final judgment, the trial court made limited findings as to equitable distribution. The trial court found that the parties had two marital retirement accounts totaling $23,187.07, and during the pendency of the case, the Husband liquidated these accounts for payment of his living expenses, temporary alimony, and both parties’ health insurance premiums. The final judgment does not include any determination that these funds were dissipated by the Husband’s intentional misconduct; instead, it found that the Wife was entitled to half of the liquidated total and awarded her $11,593.54. As to other marital assets, the final judgment simply noted that the parties had divided them in an equitable manner, but does not specify these marital assets or their values. The final judgment also provided that each party entered the marriage with non-marital assets, but again provided no specific findings.

The final judgment further found that each party had accumulated individual debts, without specifying these debts, and concluded that each party was solely responsible for their own debts. The Husband challenges only the portion of the equitable distribution scheme finding the Wife entitled to half of the two marital retirement accounts, asserting that these two dissipated assets should not have been taken into consideration in the equitable distribution.

The trial court’s ruling on equitable distribution is reviewed for an abuse of discretion. Stough v. Stough, 18 So.3d 601 (Fla. 1st DCA 2009). “As a general proposition, it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings.” Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008) (citing Cooper v. Cooper, 639 So.2d 153, 155 (Fla. 2d DCA 1994); Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002); Knecht v. Knecht, 629 So.2d 883, 886 (Fla. 3d DCA 1993)). “However, an exception to this general proposition exists when misconduct during the dissolution proceedings results in the dissipation of a marital asset. In that case, the misconduct may serve as a basis for assigning the dissipated asset to the spending spouse when calculating equitable distribution.” Id. at 584-85 (citing Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005); Romano v. Romano, 632 So.2d 207, 210 (Fla. 4th DCA 1994)).

In Walker v. Walker, 85 So.3d 553, 555 (Fla. 1st DCA 2012), this court held:

[I]n order to determine that a spouse has dissipated marital assets, the trial court must make “a specific finding of intentional misconduct based on evidence showing that the marital funds were used for one party’s ‘own benefit and for a purpose unrelated to the marriage at a time when the marriage is undergoing an irreconcilable breakdown.’ ” Belford v. Belford, 51 So.3d 1259, 1260-61 (Fla. 2d DCA 2011) (quoting Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008)). “Misconduct is not shown by ‘mismanagement or simple squandering of marital assets in a manner of which the other spouse disapproves.’"” Id. (quoting Roth, 973 So.2d at 585 (stating there “must be evidence of spending spouse’s intentional dissipation or destruction of the asset”)).

See also Annas v. Annas, 29 So.3d 1209 (Fla. 1st DCA 2010) (holding that nothing in the judgment suggested that the former wife used the money she withdrew from the parties’ bank account for anything other than reasonable living expenses pending resolution of the case and the trial court erred when it assigned the money withdrawn as part of the scheme of equitable distribution).

Here, the trial court did not find any misconduct on the part of the Husband in the dissipation of these two assets. The uncontradicted evidence shows that the dissipated funds were used to pay marital expenses while the dissolution was pending, including temporary support for the Wife, and because there is no evidence that the Husband engaged in misconduct in using these funds, the trial court abused its discretion in including these dissipated funds in the equitable distribution scheme. On remand, the trial court shall exclude the funds received from these two retirement accounts from the equitable distribution scheme.

Alimony

As to alimony, the trial court took “judicial notice” of the temporary support order and adopted those findings of fact as to the Wife’s needs and the Husband’s ability to pay, and concluded that the parties’ financial circumstances had not materially changed since the temporary support hearing. The findings of fact in the temporary support order found that the Wife quit her job of twenty years as a senior secretary, with the Husband’s encouragement and support, just before the parties married in 2000. The Wife did not obtain employment again until 2006 when she obtained a' job with the Gainesville Police Department as a technician. She remained in this job for approximately a year and a half until she was no longer able to perform the physical demands of the job. Regarding her health, the temporary support order found that the Wife suffered from hip problems since birth, she had an unsuccessful hip replacement surgery in 2010, and she continued to suffer from significant pain and an uneven gait that required her to wear a leg brace when walking long distances. Additionally, the temporary support order found that she suffered from vision problems that impacted her ability to read and use the computer for more than short periods of time, and she could no longer perform secretarial-type job duties.

With respect to the Husband, the temporary support order found that he was a manufacturing engineer but currently unemployed after he was terminated from his job, where he earned over $100,000 a year, after it was discovered that he submitted a resume in his job application years earlier that included a false statement that he had a college degree when he was two credits short of the actual degree. Although the court found this to be a willful act by the Husband, it concluded that the act was not done during the course of the proceedings for the purpose of losing his ability to pay support to the Wife. The temporary support order also found that the Husband had been actively seeking employment. It further found that the Husband had moved out of his apartment, as he could not afford the rent, and was currently residing with his girlfriend in a house that was going through foreclosure, thus neither he nor his girlfriend were paying a mortgage payment or rent.

In addition to the findings of fact adopted from the temporary support order, the trial court also found in the final judgment that the Husband had renewed his general contractor’s license and had earned $2,500 in gross income from a few jobs, but the Husband considered this to be a temporary position. The trial court found that the Husband was making a good faith effort to find employment as a manufacturing engineer. The court ordered the Husband to pay $750 a month in permanent alimony and an additional $400 per month in permanent periodic alimony for the Wife’s health insurance premiums.

The trial court’s award of permanent alimony is reviewed for an abuse of discretion. See Ondrejack v. Ondrejack, 889 So.2d 867, 870 (Fla. 4th DCA 2003). “In all dissolution actions, the court shall include findings of fact relative to the factors enumerated in subsection (2) supporting an award or denial of alimony.” § 61.08(1), Fla. Stat. (2011). Pursuant to Section 61.08(2), Florida Statutes, when the trial court is determining whether to award alimony, it “shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance.” If the court determines that one party has a need for alimony and the other has the ability to pay, then the court is required to consider all relevant factors, including, but not limited to, the factors listed within section 61.08(2)(a)-(j). See § 61.08(2), Fla. Stat. (2011).

“The purpose of permanent periodic alimony is not to divide future income to establish financial equality.” Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003). In this case, there is no presumption for or against permanent alimony, as the parties’ 10-year marriage was a “grey-area” marriage. See Sellers v. Sellers, 68 So.3d 348, 350 (Fla. 1st DCA 2011) (noting that marriages of less than 17 years in duration are “grey-area” marriages in which there is no presumption for or against permanent alimony). Permanent alimony may be awarded following a marriage of moderate duration, if such an award is appropriate based upon clear and convincing evidence after consideration of the factors set forth in section 61.08(2). § 61.08(8), Fla. Stat. (2011). Accordingly, the factual findings are particularly important in this case. See Justice v. Justice, 80 So.3d 405, 408 (Fla. 1st DCA 2012). “A trial court’s failure to make adequate factual findings in a final judgment of dissolution of marriage is typically reversible error because, in most circumstances, this failure precludes meaningful appellate review.” Winney v. Winney, 979 So.2d 396, 400 (Fla. 1st DCA 2008).

The final judgment ordered the Husband to pay $750 per month in permanent periodic alimony, and as additional permanent periodic alimony ordered the Husband to pay the Wife’s health insurance premium up to a total obligation of $400 per month. The final judgment, however, failed to include sufficient factual findings as required by section 61.08 to allow for a meaningful review of this award. Although the final judgment does contain some findings regarding both parties’ unemployment and the Wife’s numerous medical issues that prevent her from working, the final judgment lacks clear findings as to how it reached the alimony award. The trial court did not make any findings regarding the Wife’s current living expenses and whether she had any other sources of income to meet her expenses, including income from marital or non-marital assets. Additionally, as conceded by the Wife, the final judgment does not contain sufficient findings as to the Husband’s ability to pay.

The final judgment also lacks sufficient factual findings that take into consideration the factors under section 61.08(2), including but not limited to a lack of written findings as to the financial resources of each party, the value of marital and non-marital assets and liabilities distributed to each, the ‘ standard of living established during the marriage, the contribution of each party to the marriage, and the sources of income available to either party. Permanent alimony may very well be appropriate under the circumstances of the case; however, the trial court’s failure to make adequate factual findings to establish that the Wife had a need, the Husband had the ability to pay, and that the award of alimony was appropriate after considering all the relevant factors under section 61.08(2), was error.

In addition, the alimony award must also be reversed because the trial court failed to expressly find that no other form of alimony would be appropriate before awarding permanent alimony. “In awarding permanent alimony, the court shall include a finding that no other form of alimony is fair and reasonable under the circumstances of the parties.” § 61.08(8), Fla. Stat; see also Margaretten v. Margaretten, 101 So.3d 395, 396 (Fla. 1st DCA 2012) (concluding that the trial court’s failure to make statutory findings regarding the lack of any other fair and reasonable form of alimony than permanent alimony was reversible error).

Thus, we reverse the award of permanent alimony to the Wife and remand with instructions to either make sufficient findings of fact to enable this court to determine the appropriateness of the permanent periodic alimony award, or to consider another form of alimony which would be supported by the record. On remand, the trial court shall also take into consideration the effect of this court’s holding regarding the exclusion of the funds from the two dissipated retirement accounts, as it impacts the financial resources of both parties. See Collinsworth v. Collinsworth, 624 So.2d 287, 291 (Fla. 1st DCA 1993) (holding that permanent periodic alimony award had to be reversed because the decision “effectively vacated the entire plan of equitable distribution and alimony support fashioned by the circuit court”).

The Husband’s current ability to pay alimony is at issue. Upon remand, should the trial court find it is faced with a situation where the Wife has a clear need for permanent alimony, but it is established that the Husband does not have the current ability to pay, we note that a nominal award of permanent alimony would preserve the trial court’s jurisdiction to revisit this matter, until there is a substantial change in the parties’ respective financial circumstances. See Gergen v. Gergen, 48 So.3d 148, 150 (Fla. 1st DCA 2010) (holding it was error to defer awarding or denying permanent periodic alimony on ground husband did not have present ability to pay); Biskie v. Biskie, 37 So.3d 970, 973 (Fla. 1st DCA 2010) (holding that an award of nominal permanent alimony was appropriate where the wife established need and the husband did not have the current ability to pay, but his financial situation was likely to change in the future and such an award would permit the wife to pursue an increase in permanent alimony should the husband’s income rebound); Schmidt v. Schmidt, 997 So.2d 451, 454 (Fla. 2d DCA 2008) (“[W]hen one party is entitled to permanent periodic alimony but the other spouse has no current ability to pay, the trial court should award a nominal sum of permanent periodic alimony, which will give the court jurisdiction to reconsider the award should the parties’ financial circumstances change.”). If necessary, the trial court may take additional evidence in order to make the required factual findings in support of its determination. See Winney, 979 So.2d at 402.

Attorney’s Fees

With respect to attorney’s fees, the trial court found that the Wife had accumulated $24,480 in fees and costs,' and her counsel’s rate and hours were reasonable. The final judgment also found that the Wife had a need for a contribution to her fees, the Husband had the ability to pay, and ordered the Husband to pay $8,100 toward the Wife’s attorney’s fees. The Husband argues that this court should reverse this attorney’s fee award, as the trial court failed to make specific findings as to the Wife’s need, the Husband’s ability to pay, and the reasonableness of the Wife’s attorney’s fees and costs. The Wife commendably concedes that the findings were insufficient as to the Husband’s ability to pay.

Based upon the analysis above, this court cannot accurately evaluate if the Husband is truly in the best financial position to pay for a portion of the Wife’s attorney’s fees. As we are reversing a portion of the equitable distribution, and the award of alimony for reconsideration, we also reverse the order on attorney’s fees and “remand to the trial court for reconsideration in light of the changes in the parties’ relative financial resources following the trial court’s ultimate ruling.” Walker, 85 So.3d at 555 (quoting Segall v. Segall, 708 So.2d 983, 989 (Fla. 4th DCA 1998)).

We do not comment on the merits of the fee award. If, however, on remand, the trial court again orders the Husband to pay a portion of the Wife’s attorney’s fees, it must base its award “on the need of the party seeking the fees and the ability of the other party to pay the fees.” Giovanini v. Giovanini, 89 So.3d 280, 282 (Fla. 1st DCA 2012) (citing Jones v. Jones, 671 So.2d 852, 855 (Fla. 5th DCA 1996)). “The trial court must also make specific findings as to the hourly rate, the number of hours reasonably expended, and the appropriateness of reduction or enhancement factors.” Id. (citing Davis v. Davis, 613 So.2d 147, 148 (Fla. 1st DCA 1993)). “A dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient under [Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145, 1150 (Fla.1985) ].” Norman v. Norman, 939 So.2d 240, 242 (Fla. 1st DCA 2006) (citing Keeley v. Keeley, 899 So.2d 387, 389 (Fla. 2d DCA 2005)).

We reverse the final judgment of dissolution of marriage and remand to the trial court for further proceedings consistent with this opinion.

REVERSED and REMANDED for further proceedings.

ROBERTS and ROWE, JJ., concur.


text:
    Deborah O’CONNOR, Appellant, v. NORTH OKALOOSA MEDICAL CENTER and Gallagher-Bassett Services, Inc., Appellees.
    No. 1D14-0623.
    District Court of Appeal of Florida, First District.
    Dec. 12, 2014.
    John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.
    Cindy R. Galen and Barbara J. Glas of Eraclides, Gelman, Hall, Indek, Goodman & Waters, LLC, Pensacola, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals the judge of compensation claims’ (JCC) denial of temporary total disability (TTD) benefits for a defined period, based on his ruling that the benefits at issue were barred by res judicata. Because we conclude that the JCC erred by applying the doctrine of res judicata in this case, we reverse.

The facts in this case are undisputed. In 2004, Claimant sustained a com-pensable injury to her right, dominant hand, which ultimately resulted in a diagnosis of reflex sympathetic dystrophy/ complex regional pain syndrome of the right hand and wrist. This condition was accepted as compensable by the Employer/Carrier (E/C) and it provided extensive medical treatment, including injections from an authorized anesthesiologist. On January 14, 2011, following over six years of medical treatment, Claimant’s authorized treating anesthesiologist placed her at maximum medical improvement (MMI); the doctor also opined that Claimant was unable to work. The E/C acted on this MMI date by suspending all temporary disability benefits, as is required by section 440.15(2)(a), Florida Statutes (2004); Claimant had not exhausted here entitlement to 104 weeks of temporary benefits when this suspension occurred.

In September 2011, by which time all Claimant’s other treating medical professionals had also placed Claimant at MMI, Claimant filed a petition for permanent total disability (PTD) benefits based on the January 14, 2011, date of MMI; the petition necessarily, under section 440.32(3), Florida Statutes (2004), averred, that Claimant had reached MMI. The E/C contested Claimant’s entitlement to PTD benefits, but not on the ground she had not reached MMI; to the contrary, in the pretrial stipulation pertaining to Claimant’s PTD claim, both parties stipulated that Claimant reached MMI on January 14, 2011. On March 1, 2012, the JCC entered an order (the- prior order), the decretal portion of which reads (all emphasis from the original): “Claimant’s claim for permanent total disability (PTD) benefits from 01-14-11 is not ripe for adjudication and is therefore DENIED WITHOUT PREJUDICE.” The body of the order explains that the JCC reached this disposition based on his finding that Claimant had not reached MMI, making the claim “premature.” The JCC did not base his finding regarding MMI on a statement of such from a medical professional, but rather based on his interpretation of the anesthesiologist’s testimony, which established that Claimant’s medical recovery had plateaued but there was a possibility of further recovery once Claimant received additional treatment for a non-compensable neck injury, which treatment was on hold pending a dispute with another carrier. In the prior order, the JCC also found that Claimant was totally disabled from January 14, 2011, and thereafter. The prior order was not appealed by either party.

After her claim for PTD benefits was denied “without prejudice” and without an adjudication thereon, Claimant then filed a petition seeking TTD benefits from January 14, 2011, and continuing. The E/C raised the defense of res judicata against Claimant’s entitlement to TTD benefits from January 14, 2011, through February 14, 2012, the date of the hearing that gave rise to the prior order. In the order on appeal, the JCC accepted the E/C’s defense, reasoning that Claimant “could have” pled a claim for TTD benefits as an alternative to the PTD claim addressed in the prior order, in the “event that the facts were not determined to be as Claimant perceived.” The JCC awarded, however, TTD benefits beginning on February 15, 2012 (the day after the hearing giving rise to the prior order), through September 19, 2012 (when Claimant reached MMI). This appeal followed, challenging only the denial of TTD benefits that the JCC concluded were barred by res judicata.

A lower court’s ruling that bars relief on the grounds of res judicata is reviewed de novo. See Felder v. Fla. Dep’t of Mgmt. Servs., 998 So.2d 1031, 1084 (Fla. 1st DCA 2008) (citing Campbell v. State, 906 S6.2d 293, 295 (Fla. 2d DCA 2004)). The doctrine of res judicata can be applicable to workers’ compensation cases. See Buena Vista Constr. Co. v. Capps, 656 So.2d 1378, 1380 (Fla. 1st DCA 1995). The general principle behind the doctrine of res judicata is that a final judgment by a court of competent jurisdiction is absolute and puts to rest every justiciable, as well as every actually litigated, issue. See Caron v. Systematic Air Servs., 576 So.2d 372, 375 (Fla. 1st DCA 1991) (citing Gordon v. Gordon, 59 So.2d 40 (Fla.1952)). However, this principle only applies when the elements of res judicata are present and the doctrine properly applied. See id. Here, the doctrine was not properly applied.

The very foundation of the doctrine of res judicata is the existence of a “final judgment” on the merits in a previous action. See Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006); see also Smith v. Time Customer Servs., 132 So.3d 841, 844 (Fla. 1st DCA 2013). Thus, where there is an absence of a prior final adjudication on the merits, res judicata does not apply. In the instant case, the prior order expressly withholds adjudication on the entirety of Claimant’s claim for PTD benefits from January 14, 2011, and continuing, with no portion of the claim being adjudicated with finality because the JCC concluded the claim was premature; further, the denial of the entire claim was expressly made “without prejudice.” The dismissal of a prematurely filed claim does not bar a subsequent action, under the doctrine of res judicata. See Shuck v. Bank of Am., N.A., 862 So.2d 20, 24 (Fla. 2d DCA 2003). Although it could be argued that the JCC could or should have adjudicated some portion of the PTD claim with finality in the prior order, he did not. Hence, under the particular facts of this case, res judicata does not operate to bar Claimant’s subsequent claim for TTD benefits — or in fact any other claim.

Based on the foregoing, the appealed order is AFFIRMED in part (relative to the TTD benefits awarded), REVERSED in part (relative to the TTD benefits denied), and REMANDED for the entry of an order consistent with this opinion.

PADOVANO, THOMAS, and CLARK, JJ., concur.


text:
    Tabitha Joy LEWIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4871.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Charles R. McCoy, Senior Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We reverse Tabitha Joy Lewis’ forgery conviction, because the state failed to present sufficient evidence of intent to injure or defraud, as required under section 831.01, Florida Statutes.

The charge alleged that Ms. Lewis had forged a court order in the course of divorce proceedings between herself and James Lewis. Mr. Lewis was granted temporary sole custody of the parties’ son, and Ms. Lewis subsequently went to Mr. Lewis’ home to ask him to give her custody of the child. Mr. Lewis refused, and Ms. Lewis left. However, she returned later the same night and broke into Mr. Lewis’ house and assaulted him. She was arrested for the break-in, and the car she had driven to Mr. Lewis’ house was impounded. ■

One to two days later, Mr. Lewis went to an impound lot to retrieve the car. He searched the interior of the vehicle, which he described as “kind of messy.” On the rear driver’s side floorboard, in a satchel containing a nondescript folder holding various documents, he found what appeared to be a court order. It was titled “Order To Pick Up Minor Child(ren),” and was in the form of Florida Family Law Form 12.941(e), with pertinent information filled in and captioned in the style of the pending dissolution action between the parties. It contained a signature block with the name of the presiding judge in the dissolution proceeding typed in a script font. The order was dated July 5, 2012, and purported to grant temporary custody of the party’s son to Ms. Lewis.

Mr. Lewis gave the document to his attorney, who brought it to the attention of the judge at the next scheduled hearing in the dissolution action. On questioning by the judge, Ms. Lewis admitted that she had created the order on a computer, from a form she had found on the internet. She said she was “just playing around with it” and never intended to use the document.

The state subsequently charged her with forgery for having created the illegitimate court order. At jury trial, the state introduced into evidence a video of the hearing in the dissolution proceeding, in which the defendant admitted to preparing the order.

At the close of the state’s case-in-chief, the defendant moved for judgment of acquittal, arguing that the state had failed to present sufficient evidence of intent to injure or defraud, as required under the statute. The court denied the motion, finding that, from the defendant’s admission that she wanted to get custody of her son, the jury could infer that she had left the falsified order in the car with the intent that, if Mr. Lewis were to find it, he would believe it to be legitimate and that he was required to hand over custody of the child to her.

Ms. Lewis then took the stand in her own defense. She testified that, after losing custody of her son, she had hoped the trial court would reconsider and allow her to have custody again. She stated that she recalled having previously seen her husband’s attorney present a proposed order to the trial court during the dissolution and custody proceedings and that she had drafted the subject document in an attempt to be prepared if the trial court were to grant her custody at the next scheduled hearing. She testified that, in drafting the document, she used a type font from a word processing program to write “S:s* John L. Miller.” She tried to make the signature resemble other orders she had seen but she assumed that “if it was typed, it wasn’t his signature.” Ms. Lewis further testified that she fantasized about regaining custody of her son, that drafting the order made her feel a little better, and that she never showed the document to anyone or used it in any way.

The jury found the defendant guilty, and the trial court sentenced her to five years in prison.

Section 831.01, Florida Statutes provides in pertinent part, “Whoever falsely makes, alters, forges or counterfeits a public record [of] ... any public officer ... with intent to injury or defraud any person, shall be guilty of a felony of the third degree....” Falsified court orders are one kind of document that falls under the purview of the forgery statute, section 831.01, because they constitute forged public records. See Parker v. State, 658 So.2d 1105 (Fla. 3d DCA 1995). The statute expressly requires proof of intent to injure or defraud; it creates no presumption of intent from the mere creation of a falsified document.

Lewis correctly argued in her motion for judgment of acquittal that the state had presented insufficient evidence that she had intended to injure or defraud anyone by use of the order. Indeed, the only evidence of intent was her own statements that she never intended to actually dupe anyone with the order and that she never gave it to anyone or tried to pass it off as genuine.

The trial court’s denial of Lewis’ motion for judgment of acquittal was based on the evidence that she had created the document and left it in the car after she lost custody of her child and that she had admitted to wanting to re-obtain custody. From these facts, the court found that a jury could infer that Ms. Lewis had left the document in the car, intending her husband to find it, believe it was real, and surrender custody of the child based on the falsified order. But these supposed inferences were no more than speculation on the part of the trial court, which cannot substitute for actual proof of intent.

There was no evidence that the defendant ever attempted to pass the document off as a court order signed by the judge or that she even mentioned the document to her husband. A finding of intent must be based not on mere speculation, but on actual evidence that the defendant took some action in furtherance of her intent to injure or defraud another with the bogus court order (as by actually passing it of as a valid .order). See, e.g., Parker v. State, 658 So.2d 1105 (Fla. 3d DCA 1995) (explaining that not only creating, but in fact doing something to further the “intent to injure or defraud a person” with a bogus court order is a necessary part of forgery and that it is necessary that the forged instrument have been “passed off ... as an official public record”); Gadson v. State, 451 So.2d 992 (Fla. 5th DCA 1984) (rejecting state’s argument that intent element of forgery was established merely because automotive purchase documents containing false signature by defendant could potentially deceive members of the public; noting that state did not offer any evidence of such deception and explaining that speculation as to intended injury or fraud cannot support the intent element necessary to establish the crime of forgery). Given the lack of such evidence of intent in the present case, the trial court should have granted Lewis’ motion for judgment of acquittal.

The state insists that the jury could have inferred from the mere fact that Ms. Lewis admitted having created the document that she intended to present it to police to induce them to pick up her child and transfer custody to her. But this, too, is pure speculation. Because the state in the present case failed to present direct or circumstantial evidence of intent to defraud or injure or of some action amounting to passing off the false court order as genuine, it failed to present sufficient evidence of intent to prove the charge of forgery. We therefore reverse and remand for entry of judgment of acquittal.

REVERSED AND REMANDED.

VAN NORTWICK, PADOVANO, and MARSTILLER, JJ., concur.

      . Ms. Lewis had driven the car during the marriage, but Mr. Lewis owned it.


text:
    Selig HADLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0045.
    District Court of Appeal of Florida, First District.
    Dec. 16, 2014.
    Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Selig Hadley raises two issues in this appeal of judgment and sentence for third degree grand theft following a jury trial. We find merit in his challenge of the giving of a certain jury instruction, and reverse and. remand.

The trial court erred in instructing the jury on the inference of guilt that arises when an individual purchases or sells property at a price substantially below fair market value. Although this instruction was a correct statement of the law as set forth in section 812.022(3), Florida Statutes (2013), giving the instruction in this case was error because no concrete evidence was presented of the market value of the stolen property at the time of the alleged theft. Barfield v. State, 613 So.2d 507, 508 (Fla. 1st DCA 1993) (reversing conviction where “[n]o concrete evidence of the [stolen property’s] current fair market value was offered at trial.”). Based on our review of the record, we cannot conclude the error was harmless.

Accordingly, we REVERSE Hadley’s judgment and sentence and REMAND for a new trial.

VAN NORTWICK, WETHERELL, and MAKAR, JJ., concur.