author: CORTEÑAS, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. EDUARDO J. GARRIDO, D.C., P.A., a/a/o Joseph Alarcon, Appellee.
    No. 3D08-2745.
    District Court of Appeal of Florida, Third District.
    Oct. 28, 2009.
    Michael J. Neimand, Miami, for appellant.
    Panter, Panter, Sampedro and Christian Carrazana, Miami, for appellee.
    Marlene Reiss, Miami, for Floridians for Fair Insurance, Inc., as amicus curiae.
    Before COPE, WELLS, and CORTIÑAS, JJ.
   CORTEÑAS, J.

United Automobile Insurance Company (“United”) appeals the county court’s summary judgment in favor of Eduardo Garri-do, (“Dr. Garrido”). The county court certified the following question as one of great public importance:

WHETHER EXPERT TESTIMONY BASED ON A PHYSICIAN’S REPORT THAT WAS NOT FIRST OBTAINED BY THE INSURER BEFORE PIP BENEFITS WERE WITHDRAWN OR DENIED IN VIOLATION OF THE STATUTORY PREDICATE UNDER § 627.736(7)(A), FLA. STAT. (2003) IS ADMISSIBLE TO SUPPORT AN INSURER’S LEGAL DEFENSE ON MEDICAL NECESSITY AND RELATEDNESS IN AN ACTION FOR PIP BENEFITS?

See Fla. R.App. P. 9.160.

In this evolving area of the law, two recent decisions from this Court persuade us to rephrase the certified question as follows:

IN AN ACTION FOR PIP BENEFITS, DOES SECTION 627.736(7)(a), FLORIDA STATUTES (2003) PROHIBIT THE ADMISSION OF EXPERT TESTIMONY THAT IS BASED ON A PHYSICIAN’S REPORT NOT FIRST OBTAINED BEFORE PIP BENEFITS WERE DENIED?

We answer the rephrased certified question in the negative and reverse.

As a result of a car accident injury, Ana Perez De Alarcon (“Alarcon”) sought chiropractic treatment from Dr. Garrido, a licensed chiropractor. According to the terms of Alarcon’s insurance policy, United would reimburse eighty percent of the reasonable amount of a covered loss, including chiropractic treatment. On March 24, 2006, Alarcon began chiropractic treatment. Three weeks later, United required Alarcon to submit to an independent medical examination (“IME”) conducted by Dr. Marfisi, a licensed chiropractor and Dr. Gaston, a medical doctor. On April 21, 2006, United notified Alarcon that it was suspending benefits for chiropractic services rendered after April 13, 2006. However, United did not address pre-IME services. Notwithstanding the denial letter, Dr. Garrido billed United for a total of $4,090.00, which covered Alarcon’s chiropractic treatment during the period of March 24, 2006 through May 26, 2006. United did not pay. Pursuant to section 627.736(10), Dr. Garrido then sent United a pre-suit letter demanding full payment of the billed amount. United did not respond.

On September 18, 2006, Dr. Garrido sued United in county court, seeking payment for the treatment he provided to Alarcon. On April 8, 2008, Dr. Garrido moved for summary judgment, alleging that there were no genuine issues of material fact. Accompanying United’s memorandum in opposition to summary judgment was a peer review report stating that none of Alarcon’s treatment was reasonable, related, or necessary (“RRN”). The peer review report was prepared on September 16, 2008 by Dr. Merrit, a licensed chiropractor.

At the hearing on Dr. Garrido’s motion for summary judgment, the court first addressed whether Dr. Merrit’s report was admissible to support United’s claim that Alarcon’s treatment was not RRN. The trial determined that Dr. Merrit’s report, as one not first obtained prior to denying payment, and therefore in violation of section 627.736(7)(a), was inadmissible to disprove RRN. Having so concluded, and left without any other evidence to contradict Dr. Garrido’s claim that the treatment was RRN, the court granted summary judgment in favor of Dr. Garrido.

In United Automobile Insurance Co. v. Millennium Diagnostic Imaging Center, Inc., 12 So.3d 242, 246-47 (Fla. 3d DCA 2009), we held that an insurer may at any time challenge whether treatment is RRN, and is permitted to rely on a report obtained pursuant to section 627.736(7)(a) even when the report is obtained more than thirty days after the claim was submitted. Building on this conclusion, we explained in United Automobile Insurance Co. v. Sante Fe Medical Center, 21 So.3d 60, 2009 WL 3188957 (Fla. 3d DCA 2009), that an insurer’s obligation, pursuant to section 627.736(7)(a), to first obtain a medical report, applied only to withdrawal — as opposed to denial — of payment to a treating physician. Here, United denied payment. Accordingly, the “first obtained” language of section 627.736(7) (a) is not controlling and the court erred in finding otherwise. We reverse on this issue and affirm on all other issues on appeal.

Affirmed in part, reversed in part, and remanded.

      . Per the terms of the policy, United also agreed to reimburse a resident relative of the insured. In this case, Ms. Alarcon's resident relative was Joseph Alarcon, who assigned his right of reimbursement to Dr. Garrido.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Heinrich BUETTNER, Appellant, v. Joel FASS, Personal Representative of the Estate of Luise Buettner, Appellee.
    No. 4D08-4162.
    District Court of Appeal of Florida, Fourth District.
    Oct. 28, 2009.
    Rima C. Bardawil of Law Offices of Rima C. Bardawil, P.A., Miami, for appellant.

      Michael D. Cirullo, Jr. of Goren, Cherof, Doody & Ezrol, P.A., (withdrawn as counsel after filing of brief) and Amy L. Kolt-now of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Fort Lauderdale, for appel-lee.
   PER CURIAM.

We affirm the trial court’s order determining that two units in an apartment complex owned by the deceased constituted her homestead and passed to appellant, her son, in accordance with constitutional provisions. Appellant’s claim that the court should have included another two units as homestead is a factual determination, and appellant has failed to supply a record or transcript for this court to review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

Appellant also appeals an order evicting him from the entire premises of the apartment building and directing the personal representative to recover possession of the entire premises. Although no transcript is provided, and the appellant failed to appear at the hearing on the eviction, the order is fundamentally erroneous on its face in that it purports to evict appellant from the homestead premises and place them in the possession of the personal representative. As the court had already determined that the property was homestead, and thus not part of the decedent’s estate, the personal representative had no possessory interest in it. See Herrilka v. Yates, 13 So.3d 122 (Fla. 4th DCA 2009); Harrell v. Snyder, 913 So.2d 749 (Fla. 5th DCA 2005).

We reverse the order of eviction with instructions to modify the order to exclude that portion of the property which the court has already designated as homestead. While the personal representative claims that appellant is thwarting the personal representative’s ability to maintain the remainder of the property, remedies must be sought other than to dispossess appellant from his own property where the personal representative has no ownership interest in the homestead. See, e.g., Wescott v. Wescott, 487 So.2d 1099 (Fla. 5th DCA 1986) (holding that husband could seek partition of property despite wife’s claim of homestead).

WARNER, POLEN and TAYLOR, JJ., concur.


text:
    Benny ROSA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-3668.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2009.
    Carlus L. Haynes, of Law Office of Haynes & Laurent, P.A., Orlando, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner, Benny Rosa, is charged with one count of burglary of a conveyance with assault or battery, a first degree felony and one count of criminal mischief. While the petitioner was represented by the public defender, bond was denied at first appearance for the felony charge. Subsequently, private counsel was retained by Mr. Rosa and a second motion was filed requesting either that he be released on his own recognizance, or that the court set reasonable bond. The trial court without a hearing again denied bond, referring to the first denial. Petitioner contends that the failure to afford him a full bond hearing was error and seeks habeas corpus relief. We agree.

In cases in which a criminal defendant is charged with a capital offense or an offense punishable by life imprisonment, and the State has demonstrated that the proof of guilt is evident and the presumption is great, a full hearing must still be afforded at which the accused may come forward to present testimony of witnesses pertaining to his or her guilt and the defendant’s amenability to bond. In the present case the trial court improperly failed to hold such a hearing prior to denial of the motion. See Brackett v. State, 773 So.2d 564 (Fla. 4th DCA 2000).

We, accordingly, grant the petition for writ of habeas corpus and direct the trial court to hold a bond hearing at which it shall afford the petitioner an opportunity to present witnesses with regard to bond.

PETITION GRANTED and REMANDED WITH INSTRUCTIONS.

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

      . § 810.02(2)(a), Fla. Stat. (2009).

      . It does not appear that the State filed a motion for pretrial detention pursuant to Florida Rule of Criminal Procedure 3.132.


author: PER CURIAM. EVANDER, J.,

text:
    Robert TOTH, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-2029.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED.

LAWSON and COHEN, JJ., concur.

EVANDER, J., concurs and concurs specially, with opinion.

EVANDER, J.,

concurring specially.

Toth appeared for an interview at the Brevard County Sheriffs Department in conjunction with an investigation of his girlfriend’s murder. He was not advised of his Miranda rights before or during the interview. I believe that the trial court erred in denying his motion to suppress certain incriminating statements made in the latter portion of this interview. Although the interview was initially a noncustodial voluntary event, it was transformed into a custodial interrogation approximately 47 minutes into the interview. At that' time, Toth clearly indicated an understanding that he was not free to leave. Rather than correct this misconception, the detectives continued their prolonged questioning, indicated a disbelief of Toth’s story, and suggested that he was a suspect in his girlfriend’s murder. While not singularly dispositive, the failure to advise a suspect that he is free to leave militates in favor of a finding of custodial interrogation. Rigterink v. State, 2 So.3d 221, 253 (Fla.), petition for cert, filed, No. 08-1229, 77 USLW 3563 (Mar. 31, 2009).

However, I conclude that any error was harmless beyond a reasonable doubt. Toth made even more damaging statements the following day at the hospital and at the Brevard County Detention Center and these statements were properly admitted.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: LAWSON, J.

text:
    Patsy SCHUSTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1347.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Tania Alavi, Ocala, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LAWSON, J.

Patsy Schuster pled no contest to the charge of first-degree grand theft, reserving her right to appeal the denial of her motion to dismiss the information on statute of limitation grounds. We agree that the motion to dismiss should have been granted, and reverse.

Schuster was charged by information with first-degree grand theft, alleged to have been committed between December 21, 2000 and June 20, 2001. The information was filed on June 21, 2001, and a capias was issued for Schuster’s arrest. However, the record reflects that Schuster was not arrested until she learned of the outstanding capias and turned herself in more than seven years later, on October 28, 2008. The crime charged is subject to a five-year statute of limitations. See § 812.035(10), Fla. Stat. (2001). This specific statute of limitations controls over the more general limitations provisions found in section 775.15, Florida Statutes. See, e.g., McLaughlin v. State, 15 So.3d 872 (Fla. 2d DCA 2009); Kidd v. State, 985 So.2d 1180 (Fla. 4th DCA 2008); State v. Telesz, 873 So.2d 1236 (Fla. 2d DCA 2004). The cause of action accrued when the crime was committed, no later than June 20, 2001.

A prosecution is commenced, for statute of limitations purposes, when the information is filed, unless there is an “unreasonable delay” in execution of the capias. § 775.15(5), Fla. Stat. (2001). In determining the reasonableness of any delay in executing a capias, the trial court must consider the state’s “inability to locate the defendant after diligent search” and “the defendant’s absence from the state.” In this case, the State failed to produce any evidence that it made an effort to locate Schuster. Instead, it argued that its delay in execution of the capias was reasonable because Schuster resided outside of Florida. However, the State’s evidence failed to establish Schuster’s absence from this state during the limitation period. See Kidd, 985 So.2d at 1181 (“The state has the burden of proving that prosecution is not barred by the statute of limitations.”) (citations omitted). Therefore, the motion to dismiss should have been granted. McLaughlin, 15 So.3d at 876; Cunnell v. State, 920 So.2d 810, 812-13 (Fla. 2d DCA 2006); Williams v. State, 913 So.2d 760 (Fla. 4th DCA 2005).

Accordingly, we reverse Schuster’s conviction and sentence, and remand with directions that the trial court dismiss the charge.

REVERSED AND REMANDED.

PALMER and JACOBUS, JJ„ concur.

      . See § 812.014(1) and (2)(a), Fla. Stat. (2001).


text:
    Brian MURPHY, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2065.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Brian Murphy, Chipley, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Brian Murphy appeals the summary denial of his Florida Rule of Criminal Procedure 3.850 motion, which raised four claims. Because the denial order fails to provide an adequate rationale or specific references to the record to support the denial, we reverse the order on appeal and remand with instructions that the trial court either enter a sufficient order or conduct an evidentiary hearing on the claims. See, e.g., MeLin v. State, 827 So.2d 948, 954 (Fla.2002).

REVERSED AND REMANDED WITH INSTRUCTIONS.

TORPY, LAWSON and EVANDER, JJ., concur.


author: EVANDER, J.

text:
    PROGRESSIVE EXPRESS INSURANCE COMPANY, Petitioner, v. Joshua HARTLEY, Respondent.
    No. 5D09-750.
    District Court of Appeal of Florida, Fifth District.
    Oct. 30, 2009.
    Douglas H. Stein of Seipp & Flick, Miami, for Petitioner.
    David B. Russell of Pappas, Russell & Rawnsley, Daytona Beach, for Respondent.
   EVANDER, J.

Progressive seeks second-tier certiorari review of a circuit court appellate decision reversing a county court order that granted summary final judgment in favor of Progressive. We find that the circuit court properly determined that Joshua Hartley had standing to bring suit against Progressive for alleged non-payment of medical bills and, accordingly, deny the writ.

Progressive issued a policy of insurance to Hartley that provided personal injury protection (PIP) benefits. On March 18, 2003, while this policy was in effect, Hart-ley was involved in a motor vehicle accident in which he suffered personal injuries. Hartley received medical treatment for his injuries from Michael C. Durant, D.C. Upon seeking treatment from Dr. Durant, Hartley executed an assignment of PIP benefits to “Atlantic Coast Chiropractic Clinic.”

From 1993 through 1998, “Atlantic Coast Chiropractic Clinic” was the registered fictitious name for Durant Chiropractic Clinic, Inc. However, in 1998, that corporation failed to renew the fictitious name as required under section 865.09(6)(a), Florida Statutes (1998). Although the fictitious name registration expired in 1998, Dr. Durant’s clinic continued to operate under both the name of Durant Chiropractic Clinic and Atlantic Coast Chiropractic Clinic.

Dr. Durant submitted claims for payment of PIP benefits to Progressive for treatment under the name “Durant Chiropractic Clinic.” Progressive paid some claims and disallowed others submitted for Hartley’s treatment. In November 2003, Dr. Durant executed a document which purported to reassign and transfer to Hartley any and all causes of actions against any insurer to recover PIP benefits. In pertinent part, the document provided:

This document is a reassignment of any and all rights previously assigned by Joshua Hartley to Dr. Michael Durant, for medical expenses or billings from Dr. Michael Durant, as a result of the accident that occurred on or about 3/18/03.

In January 2004, Hartley filed suit in the county court seeking payment of alleged unpaid PIP benefits under the policy. Progressive subsequently filed an amended motion for summary final judgment, asserting that Hartley lacked standing to bring the underlying action. It was Progressive’s position that the purported reassignment of benefits to Hartley from Dr. Durant was ineffective because the original assignment of benefits had been to a corporate entity, not Dr. Durant. The county court agreed and granted Progressive’s motion.

The circuit court reversed, finding that the initial purported assignment of Hartley to “Atlantic Coast Chiropractic Clinic” was invalid because that entity did not exist in 2003 (and apparently at no time thereafter). Therefore, the circuit court concluded that Hartley had retained his right to claim PIP benefits due under his insurance policy.

Progressive contends that pursuant to section 865.09(9)(b), the initial assignment was valid. That section provides that the failure of a business to comply with the fictitious name registration statute does not impair the validity of any contract of such business. While that section may have supported Progressive’s argument if the initial assignment was to Durant Chiropractic Clinic, Inc., d/b/a Atlantic Coast Chiropractic Clinic (notwithstanding a failure to comply with the fictitious name registration statute), it provides no relief to Progressive in the instant case. The fact remains that the assignment was made to a non-existent entity. Furthermore, if we were to accept Progressive’s argument, no party could bring an action against Progressive for the alleged unpaid PIP benefits. See Sun Coast Health Care Ctr. 1, Inc. v. Progressive Express Ins. Co., 12 Fla. L. Weekly Supp. 803c (Broward Cty. Ct. 2005) (medical care provider who conducts business under unregistered fictitious name lacks standing to bring action against insurer based on assignment from insured to unregistered fictitious entity); see also § 865.09(9)(a), Fla. Stat. (2008) (“If a business fails to comply with this section, the business, its members, and those interested in doing such business may not maintain any action, suit, or proceeding in any court of this state until this section is complied with....”)

We further conclude that Hartley is entitled to an award of reasonable attorney’s fees incurred in the defense of Progressive’s certiorari action should Hartley ultimately prevail in the trial court. See § 627.428(1), Fla. Stat. (2003); Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Brown, 211 So.2d 13 (Fla.1968).

Petition for Writ of Certiorari DENIED.

LAWSON and JACOBUS, JJ, concur.

      . Section 865.09(9)(b), Florida Statutes (2003), provides:
      The failure of a business to comply with this section does not impair the validity of any contract, deed, mortgage, security interest, lien, or act of such business and does not prevent such business from defending any action, suit, or proceeding in any court of this state....


text:
    Michael Dale GRAY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4610.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Michael Dale Gray, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, DAVIS, and ROBERTS, JJ, concur.


text:
    Theodis HAGANS, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5965.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Nancy Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Gudinas v. State, 879 So.2d 616 (Fla.2004); Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001).

BARFIELD, DAVIS, and ROBERTS, JJ, concur.


text:
    Carole Louise KENDRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-0641.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2009.
    Ronald W. Johnson of Kinsey, Troxel, Johnson, Walborsky & Bradley, P.A., Pensacola, for Appellant.
    Paul A. Rowell, Regional Counsel, and Eric D. Schurger, Assistant Regional Counsel, Department of Children and Families, Pensacola, for Appellee.
   PER CURIAM.

Appellant, a committed defendant, requests this court review the trial court’s denial of her Petition for Writ of Habeas Corpus, filed pursuant to section 916.107(9)(b), Florida Statutes (2008). In the petition, appellant sought enforcement of the recommendation made by her multidisciplinary treatment and recovery team at Florida State Hospital regarding her care and treatment.

Without an evidentiary hearing, the trial court denied appellant’s request. The trial court noted:

.... Petitioner has not presented case law directly on point which would demonstrate that the court has the authority to direct Defendant’s placement within a particular facility....

Based on this assumption, the trial court determined it lacked authority to grant appellant’s requested relief. This would appear to be a ruling of law that no relief was available to a petitioner who alleges that her rights guaranteed pursuant to section 916.107(9), Florida Statutes, have been violated. We determine the trial court prematurely determined it could not fashion an order requiring compliance with the statutory dictates that would not im-permissibly invade the province of an executive agency.

Generally, courts have been reluctant to order a patient’s confinement in a specific program. See Dep’t of Children & Families v. Harter, 861 So.2d 1274, 1275 (Fla. 5th DCA 2003) (holding that a “court, however, may not direct that a defendant be placed in a particular facility or receive a specialized treatment.”); see also Dep’t of Children & Families v. M.H., 830 So.2d 849 (Fla. 2d DCA 2002). However, these cases do not address the specific right of habeas corpus afforded appellant through section 916.107(9)(b), which provides in pertinent part:

(9) Habeas corpus.—
(b) A client or his or her legal guardian or representatives or attorney may file a petition in the circuit court in the county where the client is committed alleging that the client is being unjustly denied a right or privilege granted herein or that a procedure authorized herein is being abused. Upon the filing of such a petition, the circuit court shall have the authority to conduct a judicial inquiry and to issue any appropriate order to correct an abuse of this chapter.

(Emphasis added).

Section 916.107(9)(b) is the enforcement mechanism for section 916.107, which acts as a committed defendant’s bill of rights. State, Dep’t of Health & Rehab. Servs. v. Stoutamire, 602 So.2d 564, 567 (Fla. 2d DCA 1992). In Stoutamire, the Second District intervened in the placement of a committed defendant based in part on the application of section 916.107(9)(b), stating:

Chapter 916, Florida Statutes, is entitled the “Forensic Client Services Act.” § 916.105, Fla. Stat. (1991). Portions of this chapter might just as easily be dubbed a “mentally ill defendants’ bill of rights.” See particularly § 916.107, Fla. Stat. (1991). This chapter, whose last substantial revision occurred in 1985, applies both to patients committed as incompetent to stand trial, and those acquitted of criminal charges by reason of insanity. § 916.106(4)(b), Fla. Stat. (1991). In subsection 916.107(4), the legislature has specifically dictated that “each patient committed pursuant to this chapter shall receive treatment suited to his needs,” including “such medical, vocational, social, educational, and rehabilitative services as his condition requires to bring about an early return to his community.” The legislature has ... specified ... [a method] for judicial implementation of these goals.... [Section 916.107(9) confers the right of a patient (extending to a guardian, representative, friend, and parties similarly situated) to petition for habeas corpus.

Here, appellant expressly raised her action under the authority of section 916.107(9)(b). An order requiring compliance with the statute would not necessarily dictate a particular course of action on the part of the department. As such, this case is distinguishable from that line of cases finding a trial court may not dictate specific treatment for an individual.

While the trial court is correct that no prior Florida case has clearly established a trial court’s authority to intervene where a committed defendant files a writ of ha-beas corpus pursuant to section 916.107(9)(b), the strict application of the statute’s wording allows intervention if there is a determination that a defendant’s rights or privileges afforded in the committed defendant’s bill of rights have been denied.

Namely, section 916.107(9)(b) grants a trial court the “authority to conduct a judicial inquiry and to issue an appropriate order to correct an abuse of this chapter” if appellant is being “unjustly denied a right or privilege granted herein.” § 916.107(9)(b), Fla. Stat. (emphasis added); see also Stoutamire, 602 So.2d at 567. In her petition, appellant alleges the Department of Children and Families’ actions denied her several of the “rights and privileges” afforded in section 916.107, including the following subsections:

(2)(c) Every forensic client shall be afforded the opportunity to participate in activities designed to enhance self-image and the beneficial effects of other treatments or training, as determined by the facility.
(4)(a) Each forensic client shall receive treatment or training suited to the client’s needs, which shall be administered skillfully, safely, and humanely with full respect for the client’s dignity and personal integrity. Each client shall receive such medical, vocational, social, educational, and rehabilitative services as the client’s condition requires to bring about a ... return to the community. ...

Due to the trial court’s erroneous legal conclusion that no relief was available to the petitioner, there is no record evidence to support the assertions of appellant to explain the reasoning behind the team’s recommendation or to assess the reasonableness of the Department’s actions in refusing to implement the team’s recommendation. The trial court made no factual findings as to any of these issues because of the erroneous belief that it lacked authority to grant any relief to appellant.

Based on the foregoing, we reverse the order denying appellant’s petition and remand for further proceedings consistent with this opinion.

REVERSED.

HAWKES, C.J., WOLF and WETHERELL, JJ., concur.

       While we share the trial court's concern that an order directing transfer of appellant to a particular facility might involve an invasion into the powers of the executive branch, we cannot presuppose that if appellant proves a violation of her rights under the statute, the trial court could not fashion an order which allows the Department flexibility to comply with the statutory mandates.


author: SHEPHERD, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. A 1ST CHOICE HEALTHCARE SYSTEMS, etc., Respondent.
    No. 3D09-809.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.

      Thomas L. Hunker, for petitioner.
    Russel Lazega, North Miami, for respondent.
    Before SHEPHERD and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

In this second-tier certiorari case, United Automobile Insurance Company seeks the exercise of our jurisdiction to quash a per curiam affirmance of a county court final judgment, finding that an insured has a private right of action under the personal injury protection provisions of the Florida Motor Vehicle No Fault Law, §§ 627.730-.7405, Fla. Stat. (2004), against an insurer who fails to provide its insured “an itemized specification of each item that the insurer ha[s] reduced, omitted, or declined to pay” — denominated by the parties in this case as an “Explanation of Benefits” (EOB) — “within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same,” under section 627.736(4)(b), Florida Statutes (2004).

Concluding this case falls within that limited category of cases in which we are authorized to exercise our discretion to review a circuit court appellate division per curiam affirmance of the county court final order or judgment, see Auerbach v. City of Miami, 929 So.2d 693, 694 (Fla. 3d DCA 2006) (exercising jurisdiction to review a circuit court appellate division per curiam affirmance of city commission action where “[flailing to do so ... would [result in] an unjustified approval of the obvious failure of the circuit court to apply the correct law”); Kneale v. Jay Ben, Inc., So.2d 917, 918 (Fla. 3d DCA 1988) (exercising jurisdiction to quash county circuit court appellate division per curiam affirmance of county court final judgment where county court obviously failed to use proper measure of damages); State v. Bock, 659 So.2d 1196 (Fla. 3d DCA 1995) (exercising jurisdiction to quash a circuit court appellate division per curiam affirmance of a county court dismissal of a DUI charge on ground that police officer acted in bad faith where only possible view of the evidence demonstrated otherwise and trial court’s oral pronouncement so stated); State v. Richard, 610 So.2d 107, 107-08 (Fla. 3d DCA 1992) (exercising jurisdiction to quash a circuit court appellate division per curiam affirmance of county court order discharging defendant without affording the state the benefit of required “window period” to bring defendant to trial), we grant the petition.

FACTS

On February 6, 2004, United Auto insured, Turner Plante, was injured in an automobile accident. From February 9, 2004, through February 16, 2004, Plante received medical care for his injuries from the respondent, A 1st Choice Healthcare Systems, Inc. On March 8, 2004, A 1st Choice, proceeding as assignee of Plante, requested payment for the services it rendered from United Auto under the personal injury protection benefits provision of the policy. Thirteen months later, on April 12, 2005, United Auto responded to A 1st Choice’s request for payment with a form EOB in which two boxes were checked, the first stating “Bill(s) Not Submitted to Our Company in Accordance with Florida Statute 627.736(5),” and the second stating, “Other: SEE PEER REVflEJW ATTACHED]” No attachment accompanied the submission.

Two years later, on February 1, 2007, A 1st Choice filed a two-count complaint against United Auto. Count I sought damages for non-payment of benefits required to be paid under section 627.736(4)(b). Count II sought nominal damages for failure by United Auto to provide a timely EOB. When it was determined that the amount sought in Count I fell within the insured’s deductible, A 1st Choice voluntarily dismissed that Count. Proceeding on Count II, the trial court granted summary judgment to A 1st Choice and, in its Order Denying Defendant’s Motion for Rehearing, recited, “United Auto violated Florida Statute § 627.736(4)(b), and in turn, breached the contract at issue in this matter” by failing to respond to A 1st Choice’s request for payment within thirty days. The court then assessed one dollar in nominal damages against United Auto for the breach, and held that A 1st Choice was entitled to an award of attorney fees for prosecuting Count II of the complaint. A 1st Choice subsequently was awarded $19,530.13 in fees and costs. On March 23, 2009, the circuit court appellate division affirmed the decision of the trial court without an opinion.

ANALYSIS

The petition in this case seeks our consideration of two interrelated questions: (1) whether there exists a firm deadline for the provision of an EOB to an insured (or his or her assignee) under section 627.736(4)(b); and (2) if so, whether section 627.736(4)(b) affords the insured (or assignee) a private right of action against his or her insurer for an insurer’s failure to meet the deadline. In its final judgment, the county court answered both questions in the affirmative, and the circuit court appellate division per curiam decision without opinion necessarily affirmed each of those determinations.

On the first question, A 1st Choice urges that section 627.736(4)(b) must be read to require a personal injury protection insurer to respond to any request for payment of benefits under a personal injury protection policy of insurance within thirty days after receiving “written notice ... of a covered loss” and “the amount due of same.” See § 627.736(4)(b). A 1st Choice misreads the statute. Under the plain language of the statute, a response is required from the insurer only “[w]hen an insurer [either] pays a portion of a claim or rejects a claim.” Id. (emphasis added). Then, “at the time of the partial payment or rejection,” id., “the insurer shall provide ... an itemized specification of each item that the insurer had reduced, omitted or declined to pay.” Id. (emphasis added). In fact, carefully parsed, it is clear there is neither a requirement nor a deadline for a personal injury protection insurer to respond to a request for payment. As we stated recently in United Automobile Insurance Co. v. Santa Fe Medical Center, 21 So.3d 60, 64 (Fla. 3d DCA 2009) (en banc), “subsection (4)(b) does not preclude an insurer from challenging the submitted claim after the thirty-day time period, or limit the ability of the insurer to obtain and submit proof [ ] after the thirty-day time period, that the treatment was not reasonable, necessary, or related.” (second emphasis added). See also Partners in Health Chiropractic, a/a/o Neocles Lebrun v. United Auto Ins. Co., 21 So.3d 858, 861 (Fla. 3d DCA 2009) (“In short, an insurer may deny a PIP claim in whole or in part either before or after that claim becomes ‘overdue [because not paid within thirty days]’ provided it has ‘reasonable proof that it is not responsible for payment.”); United Auto. Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc., 12 So.3d 242, 246 (Fla. 3d DCA 2009) (“The thirty-day time period set forth in section 627.736(4)(b) does not apply to claims for unrelated, unreasonable or unnecessary treatment.”). Notably, we have never located in the statute any absolute deadline on such a challenge.

However, actions have consequences. Subsection (4)(b) states that a “covered loss” — i.e., a charge that is within the coverage of a personal injury protection insurance policy and, as well, medically reasonable, related, and necessary — is “overdue” if not paid within thirty days of submission to the insurer of “written notice of the fact of a covered loss and of the amount of same.” § 627.736(4)(b); Partners in Health, 21 So.3d at 861. Such a loss, by definition, will not be later challengeable. See Santa Fe, 21 So.3d 60. In such a circumstance, the insured is entitled by law to an award of interest on the overdue payment and potentially an award of attorney fees for non-payment if counsel is involved. See § 627.736(4)(c), Fla. Stat. (2004); United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, 87 (Fla.2001) (“[T]he plain language of section 627.736 provides that an insurer is subject to specific penalties for an ‘overdue’ payment: ten percent interest and attorneys’ fees.”); Millennium Diagnostic Imaging Ctr., Inc., 12 So.3d at 245. Furthermore, an insurer who does not act “fairly and honestly toward its insured” in the settlement of properly submitted personal injury protection benefits claims may be subject to a statutory first-party bad faith action with all of its attendant consequences. See § 624.155(l)(b)l, Fla. Stat. (2004); Time Ins. Co. v. Burger, 712 So.2d 389, 392 (Fla.1998) (demonstrating both compensatory and punitive damages awards are available in first-party bad faith claim). Accordingly, while there is no absolute deadline for the payment of a properly presented personal injury protection claim, there is a cost — and, indeed, ever increasing risk — to a miscreant insurer who does not treat its customers properly. This is the manner in which the legislature has chosen to regulate insurers in matters of this type. The failure of the circuit court appellate division to provide relief to United Auto in this case based upon the trial court’s misinterpretation of the plain language of section 627.736(4)(b) constitutes a clear departure from the essential requirements of law for which the exercise of our jurisdiction is warranted. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (“[I]n addition to case law dealing with the same issue of law, an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.”).

Although this is a sufficient analysis upon which to quash the order of the county court, there is a dual, equally applicable analysis by which we also are authorized to grant relief in this case, namely that the statutory provision in question does not afford a private right of action. By awarding A 1st Choice one dollar in nominal damages, the county court and circuit court appellate division implicitly found that section 627.736(4)(b) affords a private right of action against an insurer for the insurer’s failure to meet the thirty-day deadline for submission of an EOB. This likewise constitutes a clear departure from the essential requirements of law.

The section in question reads in relevant part:

(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same. If such written notice is not furnished to the insurer as to the entire claim, any partial amount supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. Any part or all of the remainder of the claim that is subsequently supported by written notice is overdue if not paid within 30 days after such written notice is furnished to the insurer. When an insurer pays only a portion of a claim or rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial; ... However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for the payment.... This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5).

§ 627.736(4)(b).

It is axiomatic that whether a private right of action exists for a violation of a statute is a matter of legislative intent. See Baumstein v. Sunrise Cmty., Inc., 738 So.2d 420, 421 (Fla. 3d DCA 1999) (“There is no question that the primary, perhaps the only, issue pertinent to the question of whether a private cause of action may be based upon the breach of a statute is whether the legislature intended that to be the case.”) (emphasis added) (citing Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla. 1994)). Absent a specific expression of such intent, a private right of action may not be implied. Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 852 (Fla.2003) (emphasis added). See general ly Fla. Jur.2d, Actions, § 87; City of Sarasota v. Windom, 736 So.2d 741, 742 (Fla. 2d DCA 1999) (“[W]e must ascertain whether the legislature intended to create a private cause of action.... ”). There is nothing in the text of section 627.736(4)(b) from which one can deduce that the legislature intended an insured have a private right of action against an insurer for failure to provide an EOB. In fact, the statute only authorizes one cause of action: a cause of action for personal injury protection benefits. See § 627.736(11). The circuit court appellate division additionally departed from the essential requirements of law when it afforded a private right of action to A 1st Choice in this case. See Kaklamanos, 843 So.2d at 889.

Petition granted; order quashed; award of attorney fees and costs reversed.

      . By way of comparison, the only sanction imposed by law on most other debtors who fail to pay a debt is pre-judgment interest.


author: SUAREZ, J.

text:
    Kevin BLAKE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-973.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.
    Carlos J. Martinez, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.

      Before COPE, GERSTEN and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals from the revocation of his probation for possession of a firearm by a convicted felon. We affirm.

On November 30, 2005, the defendant pled guilty to possession of a firearm by a convicted felon in exchange for three years of probation. On December 22, 2005, less than one month later, the State filed an affidavit of violation of his probation alleging several offenses, including possession of a firearm by a convicted felon, drug offenses, grand theft, resisting an officer with and without violence and battery on a police officer, with a firearm. The defendant was arrested and charged with the foregoing offenses. At the probation violation hearing, an officer testified that he responded to the area of the defendant’s home because his partners were arresting another person for drug activity. He heard an “explosion” and saw the defendant exit the house head first by crashing through a jalousie window, and carrying a duffle bag. The Defendant hit the ground, got up and started running. When the officer attempted to arrest the defendant, he resisted and struck the officer with his elbow. The duffle bag contained a firearm and ammunition and, as verified later, a large quantity of marijuana and cocaine. The defendant’s girlfriend testified that she saw two police officers enter the defendant’s home and emerge from the house with the defendant in handcuffs. The defendant’s mother testified that she went into the house with the policemen, but did not see what happened. At the conclusion of the evidence presented at the probation violation hearing, the defendant argued that the State had failed to satisfy its burden of proving the charged violations of probation. The trial judge stated that he believed the officer’s testimony over the other testimony presented and revoked the defendant’s probation. The defendant was sentenced to fifteen years in prison, and here appeals.

This Court relinquished jurisdiction for the trial court to enter a written order. On November 6, 2008, the trial court entered a written order revoking the defendant’s probation nunc pro tunc to April 4, 2007, the date when the probation violation hearing took place. In its written order, the trial court found that the defendant violated his probation based on possession of cannabis with intent to sell, possession of a firearm while on probation, resisting an officer with violence, resisting an officer without violence, possession of a firearm by a convicted felon, carrying a concealed firearm, trafficking in cocaine while armed, battery on a police officer, possession of cocaine with intent to sell, grand theft third degree, and being arrested on new offenses. The order further states: “that any one of these allegations standing independently, from the other, does constitute a violation of the Defendant’s probation.”

Probation revocation orders are reviewed under an abuse of discretion standard. Perez v. State, 599 So.2d 1385 (Fla. 3d DCA 1992). On appeal, the defendant contends that the violations for possession of drugs and trafficking may not be sustained since the State proved these violations solely on the basis of hearsay. He further contends that there was no evidence of grand theft. Although hearsay evidence cannot be the sole basis upon which to find a violation of probation, see, e.g., Weaver v. State, 543 So.2d 443 (Fla. 3d DCA 1989), the trial court has broad discretion to determine whether the greater weight of the evidence supports a willful and substantial violation of probation. State v. Carter, 835 So.2d 259 (Fla.2002). Here, the evidence supporting the violation of probation was a combination of non-hearsay observations and physical evidence as well as hearsay evidence. A Miami-Dade police officer testified that the defendant was carrying a duffle bag containing not only a firearm and ammunition but a large quantity of marijuana and cocaine. The officer testified that he received a disposition from the chemist stating that the contents had been tested and found to be cocaine and marijuana. The cocaine, marijuana and firearm seized were entered into evidence. This constituted sufficient evidence to satisfy the conscience of the court that the defendant substantially violated his conditions of probation. We find that the trial court did not abuse its discretion in revoking the defendant’s probation.

As the State essentially concedes, the defendant’s argument that his probation could not be revoked based upon the charge of grand theft is well taken. For this reason, we remand the case with instructions to strike that portion of the revocation order specifically referring to grand theft.

Affirmed in part, reversed in part, and remanded with instructions to strike grand theft from the order of probation revocation and for resentencing accordingly.

      . The defendant contends that reversal is required because the State failed to make findings as to which specific conditions of probation were violated. This contention fails, as the State has supplemented the record with the order revoking probation nunc pro tunc to the date of the probation violation hearing, which specifies, in detail, the offenses upon which the trial court revoked the defendant's probation and specifically finds: “that any one of these allegations standing independently, from the other, does constitute a violation of the Defendant’s probation.”

      . We note that the defendant's probation was subject to revocation for violating other terms of his probation, such as picking up a charge and conviction for possession of a firearm. The defendant does not object to these charges since any one of them support a revocation of his probation. See McDonald, v. State, 409 So.2d 224, 224 (Fla. 1st DCA 1982) (“violation of the other two probation conditions was a sufficient basis for revocation of defendant's probation and no abuse of the trial court's discretion was shown”).


text:
    CABO RICO YACHTS, INC., a Florida corporation, Appellant, v. Guy MARTINACHE, Fraser Smith, and Edith Smith, Appellees.
    No. 4D08-2900.
    District Court of Appeal of Florida, Fourth District.
    Nov. 4, 2009.

      Jack J. Aiello and Rebecca Cavendish of Gunster, Yoakley & Stewart, P.A., West Palm Beach, (withdrawn as counsel after filing brief), and McLuskey & McDonald, P.A., Miami, for appellant.
    Andre A. Gibson of Andre Gibson, Chartered, North Miami Beach, for Appellee-Guy Martinache.
   PER CURIAM.

Plaintiff, Guy Martinache, sued defendant, Cabo Rico Yachts, Inc., after it failed to return a deposit plaintiff paid for construction of a boat that was never delivered to plaintiff. Defendant appeals the trial court’s entry of summary judgment in favor of plaintiff on plaintiffs breach of contract and fraud claims. We affirm summary judgment on the breach of contract claim. However, we reverse summary judgment on the fraud claim, as plaintiffs motion for summary judgment did not request summary judgment on that count and plaintiff did not submit any evidence of fraud. See Williams v. Bank of America Corp., 927 So.2d 1091 (Fla. 4th DCA 2006) (holding that it is reversible error to enter summary judgment on a ground not raised with particularity in the motion); Sheridan Healthcorp, Inc. v. Amko, 993 So.2d 167 (Fla. 4th DCA 2008) (reversing summary judgment where mov-ant did not submit evidence, stating that “[i]n summary judgment proceedings, the burden is not on the opponent to submit evidence until the movant tenders competent evidence in support of the motion.”). Here, the record fails to establish that defendant acted fraudulently when he took the deposit. See Wadlington v. Cont’l Med. Servs., Inc., 907 So.2d 631, 632-33 (Fla. 4th DCA 2005) (noting that in fraud cases the issue of whether a defendant had the intention to perform an act at the time the promise was made is generally a jury question).

Affirmed in part, Reversed in pari and Remanded.

GROSS, C.J., TAYLOR and HAZOURI, JJ., concur.


author: COPE, J.

text:
    Alonzie WIGGINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2692.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.
    Alonzie Wiggins, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before COPE, WELLS and CORTINAS, JJ.
   COPE, J.

This is an appeal after remand in Wiggins v. State, 7 So.3d 634 (Fla. 3d DCA 2009). Defendant-appellant Alonzie Wiggins filed a motion to modify sentence in which he requested additional credit for time served. The argument the defendant made in his motion was that his two trial court cases, Miami-Dade County Circuit Court case numbers 99-42673 and GO-28631, should be treated as being coterminous. On remand, the trial court entered an order explaining that the two cases are not coterminous. Based on the wording of the defendant’s motion, the trial court’s ruling is correct.

In his brief, the defendant appears to make a different argument. As we understand it, the claim is that upon violation of probation in the 1999 case, he was in custody in that case for twenty-eight months and did not receive the appropriate credit. If that is the defendant’s claim, our affir-mance is without prejudice to his filing a new motion for credit for additional jail time served.

Affirmed.


text:
    Candido Luis ROMERO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2734.
    District Court of Appeal of Florida, Third District.
    Nov. 4, 2009.
    Candido Luis Romero, in proper person.

      Bill McCollum, Attorney General, for appellee.
    Before COPE, WELLS and CORTIÑAS, JJ.
   COPE, J.

This is an appeal of an order summarily denying a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). According to the motion, defendant-appellant Romero was convicted of armed robbery. The defendant states that he was sentenced to incarceration for life, both as a three time violent offender and as a prison releasee reoffender (“PRR”).

In issue two, the defendant argued that his concurrent life terms as a PRR and a three time violent felony offender violated double jeopardy principles. While this is technically not a double jeopardy issue, the Florida Supreme Court has held that as a statutory matter, the PRR Act itself prohibits equal concurrent terms under the PRR Act and the habitual offender statute. Grant v. State, 770 So.2d 655, 659 (Fla. 2000); Ducksworth v. State, 834 So.2d 951, 952 (Fla. 3d DCA 2003). In the trial court, the State conceded the point but the trial court denied relief. The State response indicated that the designation as a three time violent felony offender should be vacated.

In issue three, the defendant argued that he did not actually qualify as a three time violent felony offender. The State responded that if the three time violent felony offender designation were vacated as suggested for issue two, then this issue would be moot.

On appeal from the summary denial of a rule 3.800(a) motion, this court is obligated to reverse unless the postconviction record shows conclusively that the appellant is not entitled to any relief. See Fla. R.App. P. 9.141(b)(2)(D). We therefore reverse the order now before us and remand the case for further proceedings on the defendant’s issues two and three. We affirm as to issues one and four without comment.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

       The crime date was July 3, 2000.


author: BROWNING, JR., EDWIN B., Senior Judge.

text:
    Robert H. CRYSTAL, Appellant, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, DIVISION OF RETIREMENT, Appellee.
    No. 1D08-5333.
    District Court of Appeal of Florida, First District.
    Nov. 5, 2009.

      Richard A. Sicking, Coral Gables, for Appellant.
    Larry D. Scott, Assistant General Counsel, Tallahassee, for Appellee.
   BROWNING, JR., EDWIN B., Senior Judge.

Appellant seeks review of an order from the State Retirement Commission (“Commission”) that denied his claim for disability retirement. Appellant claimed that his total and permanent disability due to hypertension was presumed to be by accident suffered in-line-of-duty under section 112.18(1), Florida Statutes (2006). Because the Commission applied the incorrect standard specified in section 121.0515, Florida Statutes (2006), rather than section 943.10(2), Florida Statutes (2006), we agree and reverse the Commission’s order.

Facts and Procedural Background

Appellant began employment with the Department of Corrections as an inspector. In May 2004, he transferred to a correctional institution as a classification officer. He worked in this position for approximately five months before he left his employment after 2.91 years of service due to health reasons. In 2006, Appellant applied for in-line-of-duty disability benefits.

As the sole reason for denying Appellant’s disability claim, the Commission found that Appellant’s position as a “classification officer” was not a special risk position under section 121.0515. Under such reasoning, Appellant could not claim the statutory presumption in section 112.18(1). By so doing, the Commission confused Appellant’s entitlement to a disability retirement with his entitlement to special risk retirement.

Analysis

This court reviews the Commission’s conclusions of law de novo and affirms findings of fact if they are supported by competent, substantial evidence. See Miller v. State, Div. of Ret., 796 So.2d 644 (Fla. 1st DCA 2001); see also § 121.23(4), Fla. Stat. (2008). The Commission oversees chapter 121, which outlines the Florida Retirement System (“FRS”). The FRS divides members into different classes, which include regular and special-risk. A member of the special-risk class may retire earlier and receive a higher monthly benefit than regular class positions. § 121.021(29)(b), Fla. Stat. (2006). However, a member who becomes totally and permanently disabled in the line of duty can receive disability benefits regardless of the years of service or his or her risk class. § 121.091(4)(a)l.a., Fla. Stat. (2006).

Appellant relies on the presumption in section 112.18(1) to support his argument that his hypertension was in the line of duty, which would entitle him to disability benefits regardless of his years of service. Section 112.18(1) provides, in pertinent part, that:

Any condition or impairment of health of any Florida state, municipal, county, port authority, special tax district, or lire control district firefighter or any law enforcement officer or correctional officer as defined in s. 9⅛3.10(1), (2), or (3) caused by tuberculosis, heart disease, or hypertension resulting in total or partial disability or death shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.

(emphasis added). Section 943.10(2), defines “correctional officer” as

any person who is appointed or employed full time by the state or any political subdivision thereof, or by any private entity which has contracted with the state or county, and whose primary responsibility is the supervision, protection, care, custody and control, or investigation, of inmates within a correctional institution; however, the term “correctional officer” does not include any secretarial, clerical, or professionally trained personnel.

As its sole defense to Appellant’s claim, Appellee contends that under section 121.0515(2)(c), contrary to section 943.10(2), a correctional officer must be a special-risk position. Therefore, Appellant needed to hold a special-risk position in order to obtain disability benefits in the line of duty. By doing so, Appellee and the Commission erred by ignoring the controlling definition of correctional officer as contained in section 112.18(1). Section 112.18(1) refers to section 943.10(2), not section 121.0515 or any other statute, for the definition of correctional officer. Neither section 112.18(1) nor section 943.10(2) delineates between regular and special-risk classes.

Section 943.10(2) clearly defines a “correctional officer” as a person whose primary responsibility is the “supervision, protection, care, custody and control, or investigation” of inmates. The record contains undisputed evidence that the primary responsibility of a classification officer is the protection and custody of inmates. A classification officer also investigates inmate activities and inmate disciplinary actions. Therefore, the position of “classification officer” fits the definition of “correctional officer” in section 943.10(2). The Commission erred in imposing an additional requirement that the position be special-risk to invoke the inline-of-duty presumption.

In the proceedings below, the parties stipulated that Appellant met the medical requirements for section 112.18(1). Appel-lee did not dispute the medical evidence. Based on the parties’ stipulation, the Commission erred in determining that Appellant failed to meet the medical requirements of section 112.18(1). As Appellant fit the definition of correctional officer, he was entitled to the presumption of in-line-of-duty disability absent evidence from Ap-pellee to the contrary.

Accordingly, we hold that the Commission incorrectly concluded that the definition of correctional officer required that the employment position be a special-risk position. Appellant is entitled to the presumption of in-line-of-duty disability under section 112.18(1) and, therefore, to disability retirement benefits pursuant to section 121.091(4)(a)l.a. We reverse the Commission’s order and remand with directions for the Commission to enter an order awarding disability benefits in the appropriate risk classification to Appellant.

REVERSED and REMANDED with directions.

ROBERTS and CLARK, JJ., concur.


author: MOXLEY, J.D., Associate Judge.

text:
    Alice BRYANT, Appellant, v. Shirley TARMAN, Appellee.
    No. 5D08-3385.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.
    James T. Lynch of Morgan & Morgan, P.A., Orlando, for Appellant.
    Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A. and Angela J. Stanley of Mimi L. Smith & Associates, Orlando, for Appellee.
   MOXLEY, J.D., Associate Judge.

The issue in this case is whether the trial court erred in granting summary judgment because Appellant split her cause of action by first obtaining a judgment for property damage to her motor vehicle and then filing a lawsuit for personal injuries resulting from the same motor vehicle accident. As Judge Ferguson pointed out in a concurring opinion in Ran v. Browarnik, 494 So.2d 295, 296 (Fla. 3d DCA 1986), difficulties may arise in the preparation and trial of a lawsuit involving property damage and personal injury arising from a single motor vehicle accident. However, all damages claimed as a result of a single wrongful act must be sought in one lawsuit, even when it involves a motor vehicle accident. Id. The law does not permit the owner of a single cause of action to divide or split that cause of action so as to make it the subject of several lawsuits. Mims v. Reid, 98 So.2d 498, 500 (Fla.1957).

Accordingly, the trial court did not err in rendering summary judgment.

AFFIRMED.

TORPY and EVANDER, JJ„ concur.


author: PALMER, J.

text:
    HEALTH FIRST HEALTH PLAN # C, INC., Appellant, v. FLORIDA HEALTHY KIDS CORPORATION, Appellee.
    No. 5D08-240.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      David C. Borucke and Steven L. Bran-nock of Holland & Knight LLP, Tampa, and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, for Appellant.
    Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey of Brewton Plante, P.A., Tallahassee, for Appellee.
   PALMER, J.

ON MOTION FOR REHEARING AND REHEARING EN BANC

Florida Healthy Kids Corporation (FHKC) filed a motion for rehearing and rehearing en banc. We deny the motion, but withdraw our previous opinion and substitute this corrected opinion in its stead.

Health First Health Plan C, Inc., (Health First) appeals the final order entered by the trial court granting summary judgment in favor of FHKC. Determining that the trial court misinterpreted the controlling statute and, as a result thereof, erred in concluding that FHKC did not breach its contract with Health First, we reverse.

Health First filed an amended complaint against FHKC alleging claims of breach of contract, breach of the implied covenant of good faith and fair dealing, and breach of fiduciary duty. All claims arose out of Health First’s contract with FHKC.

In its amended complaint, Health First described itself as a health maintenance organization providing comprehensive health care services via a health insurance plan that covered 6,000 Brevard County children. FHKC was created by section 624.91 of the Florida Statutes to provide eligible children with health insurance coverage, and was one of the five components of the Florida KidCare Program. The overall coverage goal of the Florida Kid-Care Program was to ensure that uninsured children would receive healthcare provided through one of the following programs: (1) Medicaid, (2) Medikids, (3) employee sponsored group health-insurance plans, (4) the Children’s Medical Services Network (CMS), or (5) FHKC. Health First’s complaint alleged that FHKC breached the parties’ contract when it erroneously determined that a special needs child known as Child Doe # 3 could be enrolled in the FHKC program because she was ineligible to be enrolled in the CMS program due to her family’s income. The CMS program was specifically designed to cover children with special needs.

FHKC filed a motion seeking summary judgment claiming it did not breach its contract by placing Child Doe # 3 in the FHKC program because Child Doe #3 was not eligible to be enrolled in the CMS program. In response, Health First argued that FHKC did breach its contract because Child Doe # 3 should have been enrolled in the CMS program for children with special needs, not FHKC. The trial court granted FHKC’s motion based on the finding that FHKC did not breach its contract with Health First by enrolling Child Doe # B in the FHKC program. We disagree.

The contract between Health First and FHKC contained the following eligibility provisions:

3-6 Eligibility

HEALTH FIRST [HFHP] agrees to accept Participants who meet the eligibility standards contained in Exhibit F attached hereto and incorporated herein as a part of this Agreement.... HEALTH FIRST agrees that, subject to relevant federal and state law and subject to the requirements of this Agreement, FHKC is solely responsible for determining whether or not a child is eligible for the FHKC program....

(Emphasis supplied). Section 409.814 of the Florida Statutes defines the eligibility requirements for CMS as follows:

409.814. Eligibility

A child whose family income is equal to or below 200 percent of the federal poverty level is eligible for the Florida Kid-Care program as provided in this section.
(3) A child who is eligible for the Florida KidCare program who is a child with special health care needs, as determined through a medical or behavioral screening instrument, is eligible for health benefits coverage from and shall be referred to the Children’s Medical Services network.
(5) A child whose family income is above 200 percent of the federal poverty level or a child who is excluded under the provisions of subsection (4) may participate in the Florida Kid-Care program, excluding the Medicaid program, but is subject to the following provisions:
(a) The family is not eligible for premium assistance payments and must pay the full cost of the premium, including any administrative costs.
(b) The agency is authorized to place limits on enrollment in Medi-kids by these children in order to avoid adverse selection. The number of children participating in Me-dikids whose family income exceeds 200 percent of the federal poverty level must not exceed 10 percent of total enrollees in the Medikids program.
(c) The board of directors of the Florida Healthy Kids Corporation is authorized to place limits on enrollment of these children in order to avoid adverse selection. In addition, the board is authorized to offer a reduced benefit package to these children in order to limit program costs for such families. The number of children participating in the Florida Healthy Kids program whose family income exceeds 200 percent of the federal poverty level must not exceed 10 percent of total enrollees in the Florida Healthy Kids program.
(d) Children described in this subsection are not counted in the annual enrollment ceiling for the Florida KidCare program ...

§ 409.814(3) & (5), Fla. Stat. (2001).

In its order entering summaiy judgment in favor of FHKC, the trial court concluded that a child must meet the financial eligibility component and be a special needs child in order to be eligible for CMS. The trial court supported its decision based on the difference between the words “eligible” which appears in section 409.814(3), and “participate” which appears in section 409.814(5). However, the trial court’s conclusion is refuted by the language set forth in section 409.814(5) which states that a child with a family income above 200% of the federal poverty level may participate in all of the Florida Kid-Care Programs, excluding the Medicaid program. This language necessarily leads to the conclusion that the only component of the Florida KidCare Program that a child with a family income level above 200% of the federal poverty level could not participate in is the Medicaid program. When read together, sections 409.814(3) and (5) authorize an eligible child with special needs and a family income exceeding 200% of the federal poverty level to participate in CMS. As such, pursuant to the parties’ contract, Child Doe # 3 should not have been placed in the FHKC program, but rather, should have been referred to CMS as a special needs child. Accordingly, the trial court erred in ruling otherwise.

The final summary judgnent entered in favor of FHKC is reversed and this case is remanded for further proceedings consistent with this opinion.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . See § 409.812, Fla. Stat. (2001).

      . Child Doe # 3 is a child with special needs whose family income allegedly exceeded 200% of the federal poverty level.


text:
    S.D.J., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1287.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this appeal from a juvenile disposition, the State concedes that the trial court erred by assessing costs of prosecution. See D.A. v. State, 11 So.3d 423 (Fla. 4th DCA 2009) (holding that section 938.27(1), Florida Statutes, does not authorize courts to impose costs of prosecution on a juvenile adjudicated delinquent). Accordingly, we remand with directions that these costs be stricken. In all other respects, the adjudication of delinquency and disposition are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

MONACO, C.J., LAWSON and JACOBUS, JJ., concur.


text:
    S.D.J., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1285.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this appeal from a juvenile disposition, the State concedes that the trial court erred by assessing costs of prosecution. See D.A. v. State, 11 So.3d 423 (Fla. 4th DCA 2009) (holding that section 938.27(1), Florida Statutes, does not authorize courts to impose costs of prosecution on a juvenile adjudicated delinquent). Accordingly, we remand with directions that these costs be stricken. In all other respects, the adjudications of delinquency and disposition are affirmed.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED WITH DIRECTIONS.

MONACO, C.J., LAWSON and JACOBUS, JJ., concur.


author: GRIFFIN, J.

text:
    UNIVERSITY OF CENTRAL FLORIDA BOARD OF TRUSTEES, Petitioner, v. Richard TURKIEWICZ, Respondent.
    No. 5D09-1243.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      Youndy C. Cook, Associate General Counsel, and Paul S. Jones, Luks, Santan-iello, Perez, Petrillo, Gold & Jones, Orlando, for Petitioner.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Respondent.
   GRIFFIN, J.

Petitioner, University of Central Florida Board of Trustees [“UCF”], seeks certio-rari review of a circuit court order denying its motion to dismiss a complaint filed under Florida’s Whistleblower’s Act [the Act”] by its ex-employee, Richard Turk-iewicz [“Turkiewicz”]. UCF contends that Turkiewicz did not comply with statutory conditions precedent before filing suit and that requiring UCF to continue with the litigation will cause it irreparable harm for which there is no remedy on appeal. Because we agree that the Act requires that Turkiewicz seek relief from the Florida Commission on Human Relations [“FCHR”] before filing a civil action, and there is no dispute that Turkiewicz failed to seek relief from the FCHR, we grant the writ and quash the order.

FACTS

Turkiewicz was employed by UCF starting in 1988 as the Director of Safety and Security and then the Director of Police and Public Safety. Turkiewicz reported directly to and was supervised by William Merk, UCF’s Vice President for Administration and Finance. He was considered an exemplary employee. Beginning in or about late 2005 and into early 2006, Turk-iewicz disclosed to Merk what he considered to be possible regulatory violations and/or acts of gross malfeasance and waste of public funds by UCF.

Turkiewicz alleges that he was summoned to a meeting with Merk on or about November 8, 2006, where Merk informed him that he should consider making a change in employment because Merk did not believe Turkiewicz to be “engaging enough.” On or about November 29, 2006, UCF notified Turkiewicz in writing that it would not reappoint him. This notice of non-reappointment was to be effective one year later on November 28, 2007. Rather than remain employed for that year, Turk-iewicz tendered his resignation in February 2007.

In December 2006, Turkiewicz initiated a grievance against UCF pursuant to University Regulation 6C7-3.0132, “Grievance Procedures for Non-Unit Faculty and A & P Staff Members.” In his grievance, Turkiewicz alleged twelve violations of University rules or Florida Statutes.

UCF’s audit office investigated five of the allegations concerning financial improprieties and deemed the allegations against UCF to be unsubstantiated. The remaining seven allegations made by Turkiewicz were heard by the Step One Grievance Panel, which also concluded the charges were unfounded. In May 2007, Turkiewicz requested a Step Two hearing before a hearing officer appointed by the Division of Administrative Hearings [“DOAH”]. Turkiewicz’s request was denied, as is permitted by the regulation, and a hearing was held before UCF Vice-President Dr. Marybeth Ehasz. On December 20, 2007, Ehasz issued a decision upholding Turkiewicz’s non-reappointment and, according to Turkiewicz’s complaint, “dismissing his whistleblower allegations.”

UCF President John C. Hitt upheld Ehasz’s decision of non-reappointment against Turkiewicz. In July 2008, Turk-iewicz filed suit against UCF for violation of the Act. UCF filed a motion to dismiss Turkiewicz’s complaint, asserting that he failed to exhaust his administrative remedies as is required by the statute because the Act requires an aggrieved public employee to seek redress from the FCHR prior to bringing a civil action.

Turkiewicz’s response to the motion to dismiss was that the Act is to be liberally construed in favor of granting access to the remedy it provides and that he did, in fact, exhaust his administrative remedies prior to filing suit by initiating a grievance and requesting a Step One and Step Two hearing with UCF’s vice-president and president, respectively. Turkiewicz alleges that he filed suit within 180 days after he received the president’s letter upholding his non-reappointment, as is required by the final sentence of section 112.3187(8)(a). (“Upon receipt of notice from the Florida Commission on Human Relations of termination of the investigation ... may elect to pursue the administrative remedy available under section 112.31895 or bring a civil action within 180 days after receipt of the notice”). Turk-iewicz conceded that the statute refers to notice from the FCHR, but argued that, in the interest of the liberal construction to be afforded a claim under the Act, the final order issued by UCF’s president should be considered as the notice of adverse action for statute of limitations purposes.

After a hearing, the trial court denied UCF’s motion to dismiss without explanation. At the hearing the trial court expressed the view that the statute was unclear. In seeking review of this order, UCF makes essentially the same arguments made to the trial court below: that if Turkiewicz wanted to make a complaint under the statute, he was required to file his complaint with the FCHR and then wait for a decision from it prior to filing a civil action. We agree.

Section 112.3187(8), Florida Statutes, identifies three classes of persons who may file a whistleblower’s complaint. As a UCF employee, Turkiewicz falls within section 112.3187(8)(a):

Any employee of or applicant for employment with any state agency, as the term “state agency” is defined in s. 216.011, who is discharged, disciplined, or subjected to other adverse personnel action, or denied employment, because he or she engaged in an activity protected by this section.

Subsection (a) states that this class of persons:

may file a complaint, which complaint must be made in accordance with s. 112.31895. Upon receipt of notice from the Florida Commission on Human Relations of termination of the investigation, the complainant may elect to pursue the administrative remedy available under s. 112.31895 or bring a civil action within 180 days after receipt of the notice.

(Emphasis added).

JURISDICTION

The first issue we face is jurisdiction. UCF claims that requiring it to litigate this claim will cause it irreparable harm, not just in the cost and general inconvenience of litigation, which it concedes are never sufficient to justify certio-rari jurisdiction, but also because it deprives them of the statutorily mandated pre-suit procedures that are designed to put a state agency on early notice of the claim and an administrative forum to resolve claims.

UCF is correct that the denial of a motion to dismiss can be reviewed by certiorari in certain circumstances to examine a claim that statutory pre-suit requirements have not been met. For example, a claim that a party did not comply with the pre-suit requirements of section 766.106(2), Florida Statutes, in a medical malpractice action is reviewable by certiorari. See Scherer v. Rigsby, — So.3d —, 2009 WL 1872331 (Fla. 4th DCA July 1, 2009); Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008); Sova Drugs, Inc. v. Barnes, 661 So.2d 393 (Fla. 5th DCA 1995). Additionally, courts have exercised certiorari jurisdiction when a circuit court permits a party to litigate in that court where there is a contractual or legal obligation to proceed administratively. Progressive Express Ins. Co. v. Re-aume, 937 So.2d 1120, 1123 (Fla. 2d DCA 2006), review denied, 952 So.2d 1191 (Fla. 2007) (citing Metro. Dade County v. Recchi Am., Inc., 734 So.2d 1123 (Fla. 3d DCA 1999), review denied, 751 So.2d 1258 (Fla. 2000)); Zelinka v. Americare Healthscan, Inc., 763 So.2d 1173 (Fla. 4th DCA 2000); Univ. of Miami v. Klein, 603 So.2d 651, 652 (Fla. 3d DCA), review denied, 613 So.2d 6 (Fla.1992).

The rationale advanced by those courts that have exercised certiorari jurisdiction to review the denial of a motion to dismiss based on the failure of a plaintiff to comply with pre-suit requirements is that “statutes requiring pre-suit notice and screening cannot be meaningfully enforced post-judgment because the purpose of the pre-suit screening is to avoid the filing of the lawsuit in the first instance.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995). We find the rationale of these cases and others to be applicable to this case and that we have certiorari jurisdiction.

Section 112.3187(8)(a), Florida Statutes, is a pre-suit requirement.

Turkiewicz urges that the use of the word “may” in section 112.3187(8)(a) indicates that the filing of a complaint with the FCHR is permissive and not mandatory: “Any employee ... may file a complaint, which complaint must be made in accordance with s. 112.31895.” Turkiewicz argues that because the statute uses the word “may,” a State employee may file a claim but if he chooses not to file a claim, he still has the option of bringing a civil action within 180 days “after receipt of the notice.” Turkiewicz contends that the “notice” he received from UCF President Hitt after his Step Two hearing can be construed as the “notice” referred to in the statute. This argument is refuted by the clear and unambiguous language of the statute. The first part of that sentence states “Upon receipt of notice from the Florida Commission on Human Relations of termination of the investigation .... ” Turkiewicz’s interpretation of the statute ignores that the statute refers to notice from the FCHR.

Although the Act states that employees may file a complaint to the FCHR, it also clearly says that employees are only entitled to file a civil action within 180 days after receipt of notice from the FCHR of termination of the investigation. In this context, the use of the word “may” simply acknowledges that one who has a claim under the Act has the right to pursue a legal remedy or to choose not to pursue a legal remedy. However, if the aggrieved person does choose to pursue a legal remedy, he or she must do so by first filing a complaint with the FCHR.

Legislative intent may also be verified by examining other uses of the same or similar language in similar contexts. Hankey v. Yanan, 755 So.2d 93, 96 (Fla. 2000). Our Supreme Court in Maggio v. Florida Department of Labor and Employment Security, 899 So.2d 1074 (Fla. 2005), construed the use of the word “may” in a similar context to impose mandatory pre-suit requirements under the Florida Civil Rights Act. The language of the act at issue in Maggio is similar to the language at issue in the Act. The Civil Rights Act provides in pertinent part:

Any person aggrieved by a violation of sections 760.01-760.10 may file a complaint with the commission (FCHR) within 365 days of the alleged violation, naming the employer, employment agency, labor organization, or joint labor-management committee....

(Emphasis added). The operative language at issue in the Act is that:

Any employee or applicant for employment with any State agency, ... who is discharged, disciplined, or subjected to other adverse personnel action, or denied employment, because he or she engaged in an activity protected by this section may file a complaint, which complaint must be made in accordance with section 112.31895.[]

(Emphasis added). The Maggio court described section 760.11(1) as containing a set of “pre-suit administrative procedures” with which the claimant must comply prior to filing a civil action. Similarly, in Ross v. Jim Adams Ford, Inc., 871 So.2d 312, 315 (Fla. 2d DCA 2004), the Second District noted:

Section 760.11 establishes administrative and civil remedies for violations of the Florida Civil Rights Act. Although this statute states that a complaint “may” be filed with the Florida Commission [on Human Relations], it is clear that such a complaint must be filed either with the Commission or its federal counterpart by anyone who wishes to pursue either a lawsuit or an administrative proceeding under this act.

(Emphasis added).

The Fourth District has also construed similar use of the word “may” as requiring the filing of a complaint with the FCHR under the Fair Housing Act. In Belletete v. Halford, 886 So.2d 308, 310 (Fla. 4th DCA 2004), the court held that language that an aggrieved tenant “may” file a complaint with the FCHR creates a requirement that one who wishes to pursue a lawsuit or an administrative proceeding for a violation of the act must first file a complaint with the FCHR.

Although there is no case that directly addresses the issue whether an aggrieved public employee is required under the Act to first file a complaint with the FCHR prior to bringing a civil action, there are several cases arising under subsection (b) of section 112.3187 that apply to local government employees. These cases are useful because subsection (b) also provides that an aggrieved party “may” file a complaint with the appropriate local government authority. These cases have consistently held that an aggrieved employee must exhaust his or her administrative remedies prior to filing suit. See, e.g., Browne v. City of Miami, 948 So.2d 792 (Fla. 3d DCA 2006); Bridges v. City of Boynton Beach, 927 So.2d 1061 (Fla. 4th DCA 2006); Ujcic v. City of Apopka, 581 So.2d 218 (Fla. 5th DCA 1991); Dinehart v. Town of Palm Beach, 728 So.2d 360, 362 (Fla. 4th DCA 1999).

One additional case that discusses pre-suit requirements under the Act is Florida Department of Education v. Garrison, 954 So.2d 84 (Fla. 1st DCA), review denied, 966 So.2d 966 (Fla.2007). In Gamson the issue was whether the pre-suit notice requirements of section 768.28 are applicable to a cause of action brought pursuant to the Act. The court found that the section 768.28 pre-suit notice requirements are not applicable to the Act because

it contains its own detailed administrative pre-suit notice requirements, sets forth a plethora of other conditions that must be satisfied before a claim can be successfully brought under its provisions, and explicates the particular remedies available to an aggrieved employee (including the filing of a “civil cause of action” once certain pre-requisites have been met).

Id. at 86. The Garrison court further described the Act as a “stand alone statutory scheme designed to provide an aggrieved party with a remedy against the State or its agencies or subdivisions under certain, specified conditions.” Id. In reaching this conclusion, the Garrison court found Maggio controlling. In Mag-gio, the Supreme Court held that the pre-suit notice requirement of section 768.28(6) has no application to the Florida Civil Rights Act of 1992 because of the inclusion of detailed pre-suit requirements within the act itself. The Maggio court’s decision was based upon its interpretation of the statutory language of the Civil Rights Act. The Garrison court found the statutory language of the Act substantially similar to that of the Florida Civil Rights Act.

Turkiewicz finally argues that he did seek an administrative remedy prior to filing suit by following UCF’s multi-step grievance process and that he filed his court action within 180 days of UCF President Hitt’s final order upholding his non-reappointment. Turkiewicz urges that “these actions should be sufficient” to satisfy the pre-suit notice requirements, especially since the act is to be liberally construed to further its general purposes. Turkiewicz’s argument is not persuasive because there is easily a distinction between UCF’s internal grievance process and the detailed administrative procedure outlined in section 112.31895, which is designed to give the state an opportunity to identify and expeditiously resolve meritorious claims.

Because the Act requires an aggrieved employee to seek administrative relief by filing a complaint with the FCHR prior to the filing of a civil action, UCF is entitled to certiorari relief.

PETITION GRANTED; ORDER QUASHED.

MONACO, C.J., and TORPY, J., concur.

      . §§ 112.3187-.31895, Fla. Stat. (2005).

      . Regulation 6C7-3.0132 defines “grievance” as a "dispute concerning the interpretation or application of a university or State Board of Education rule, regulation, or policy.”

      . Subsection (b) is a similar provision which applies to any local public employee. It provides that such a person
      may file a complaint with the appropriate local governmental authority, if that authority has established by ordinance an administrative procedure for handling such complaints or has contracted with the Division of Administrative Hearings under s. 120.65 to conduct hearings under this section ... Within 180 days after entry of a final decision by the local governmental authority, the public employee who filed the complaint may bring a civil action in any court of competent jurisdiction. If the local governmental authority has not established an administrative procedure by ordinance or contract, a local public employee may, within 180 days after the action prohibited by this section, bring a civil action in a court of competent jurisdiction. For purpose of this paragraph, the "local governmental authority” includes any regional, county or municipal entity, special district, community college district, or school district or any political subdivision of any of the foregoing.”
      (Emphasis added). Subsection (c) applies to "any other person protected by this section”. Under subsection (c), those persons may, "after exhausting all available contractual or administrative remedies, bring a civil action in any court of competent jurisdiction within 180 days after the action prohibited by this section.”

      . Section 112.31895 simply provides that the complaint must be made in writing at the Office of the Chief Inspector General in the executive office of the governor or with the Florida Commission on Human Relations.

      . Section 768.28 is the State’s waiver of sovereign immunity for tort actions.


author: COHEN, J.

text:
    Jennifer BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1501.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.

      James S. Purdy, Public Defender, and Kathryn Rolhson Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

This appeal questions whether double jeopardy bars Appellant’s convictions for carjacking with a weapon and aggravated assault (deadly weapon). We find it does not and affirm.

Appellant entered an open no contest plea to charges of carjacking with a weapon, aggravated assault (deadly weapon), and petit theft. During the plea hearing, the State offered the following factual predicate. The victim was driving to work around 6:20 a.m. when she observed Appellant crying and waving her arms at an intersection. When the victim rolled down her window, Appellant explained that her van had broken down and she needed a ride home. The victim agreed and drove to Appellant’s neighborhood. Once there, she asked Appellant to get out so that she could get to work on time. Appellant reached forward as if to pick up her purse, but instead thrust a six-inch knife towards the victim’s throat. The victim held Appellant’s knife arm away with one hand while she attempted to release her seatbelt with her other hand. Appellant grabbed the victim’s free hand and demanded her money, purse, and phone. Fearing for her life, the struggling victim released the brake pedal, causing Appellant to panic. During the ensuing melee, the victim jumped from the vehicle and Appellant drove off. Law enforcement located the vehicle later that day next to a drainage ditch where the victim’s purse, without her personal property, had been abandoned. Defense counsel added that Appellant told the police that the two men she left with her broken-down van had given her the knife with instructions to get another vehicle and money. The police apprehended the two men, who had criminal records, while they were attempting to refuel her van.

Although Appellant failed to raise the double jeopardy issue below, such a claim raises a question of fundamental error that can be raised for the first time on direct appeal. See Crites v. State, 959 So.2d 1265, 1267 (Fla. 5th DCA 2007), citing Scarola v. State, 889 So.2d 108, 109— 10 (Fla. 5th DCA 2004) (en banc). Although a guilty plea and adjudication of guilt generally preclude a later double jeopardy attack, an exception applies when, as in this case, there is a general or open plea, the double jeopardy is apparent from the face of the record, and there is nothing in the record to indicate a waiver of double jeopardy. See Brown v. State, 1 So.3d 1231 (Fla. 2d DCA 2009), citing Novaton, v. State, 634 So.2d 607, 609 (Fla. 1994). The appeal is permitted by Florida Rule of Appellate Procedure 9.140(b)(2)(A)(ii)e., as one “otherwise provided by law.” Barfield v. State, 871 So.2d 929, 930 (Fla. 5th DCA 2004). A double jeopardy claim based on undisputed facts presents a pure question of law and is reviewed de novo. Pizzo v. State, 945 So.2d 1203,1206 (Fla.2006).

Appellant argues that because the single action of thrusting a knife toward the victim comprised the elements of both offenses, her conviction for aggravated assault with a deadly weapon was subsumed by the greater offense of armed carjacking and, therefore, violates double jeopardy. The analysis turns upon a comparison of the statutory elements of the offenses, rather than a focus upon the single action she committed. See Pizzo, 945 So.2d at 1207, approving Donovan v. State, 572 So.2d 522 (Fla. 5th DCA 1990).

Carjacking involves the following elements: (1) the taking of a motor vehicle from the person or custody of another; (2) with the intent to either permanently or temporarily deprive the person of the motor vehicle; and (3) during the taking, there is the use of force, violence, assault, or putting in fear. § 812.133(1), Fla. Stat. (2007). If, in the course of committing the carjacking, the offender carried a firearm or other deadly weapon, the offense is a felony of the first degree. § 812.133(2)(a). In comparison, aggravated assault is an assault with a deadly weapon without intent to kill. §§ 784.021(l)(a), 784.011, Fla. Stat. (2007).

In Law v. State, 824 So.2d 1055 (Fla. 5th DCA 2002), this court held that armed carjacking does not subsume aggravated assault with a firearm where the defendant’s use of the gun to gain entry to the house was separate and apart from his subsequent act of armed carjacking. Law relied upon Hayes v. State, 803 So.2d 695 (Fla.2001), which held that armed robbery and the subsequent grand theft of the same victim’s automobile were criminal acts sufficiently separated by time, place, and circumstance to permit dual convictions and punishments without violating double jeopardy. The prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts. Hayes, 803 So.2d at 700, citing Blockburger v. United States, 284 U.S. 299, 302-04, 52 S.Ct. 180, 76 L.Ed. 306 (1932). The defendant in Law used a gun to threaten the victim and gain entry to the victim’s house. Once inside, he ordered the victim to the ground, placed a knee in his back and a gun to his head, and demanded his car keys. After Law grabbed the car keys, he fled in the victim’s car.

While Law was correctly decided, the temporal and spatial analysis is unnecessary to answer the double jeopardy issue presented in this case. Although it is undisputed that the events in the present case occurred over a matter of seconds while both individuals were seated in the victim’s van, the gravamen of the aggravated assault offense is the use of a deadly weapon, not merely carrying one, as required for armed carjacking. As the Florida Supreme Court stated in State v. Baker, 452 So.2d 927 (Fla.1984):

In virtually every case of armed robbery, the deadly weapon carried by the perpetrator is the means by which he induces ‘force, violence, assault, or putting in fear,’.... However, the statutory element which enhances punishment for armed robbery is not the use of the deadly weapon, but the mere fact that a deadly weapon was carried. ...

Id. at 929. Because the offense of aggravated assault requires proof of an element not required for armed carjacking, multiple convictions and punishments may be imposed. § 775.021(4)(a), Fla. Stat. (2007).

Appellant also raised, for the first time on appeal, the trial court’s failure to hold a competency hearing once it invoked Florida Rule of Criminal Procedure 3.210. Before raising this issue on appeal, Appellant must first file a motion to withdraw the plea with the trial court. See Hicks v. State, 915 So.2d 740, 741 (Fla. 5th DCA 2005). Because Appellant failed to do so, we lack jurisdiction to consider her claim. Id.

AFFIRMED.

MONACO, C.J., and GRIFFIN, J„ concur.


text:
    Michael JENSEN, Petitioner, v. Tracy JENSEN, Respondent.
    No. 5D09-3109.
    District Court of Appeal of Florida, Fifth District.
    Nov. 6, 2009.
    Carlton Pierce, of Carlton Pierce, P.A., Orlando, for Petitioner.
    Debra S. Johnson, of Debra S. Johnson, P.A., Orlando, for Respondent.
   PER CURIAM.

Michael Jensen petitioned this court for habeas corpus relief after he was found in direct criminal contempt by the trial court and sentenced to thirty days of incarceration. Mr. Jensen maintained in his petition that the evidence did not support a finding of contempt, and that the trial court failed to comply with Florida Rule of Criminal Procedure 3.830. We agreed and ordered his immediate release from custody indicating that this opinion would follow.

The facts are uncomplicated. At the conclusion of a hearing held in the dissolution proceedings below, the trial judge announced that he was holding Mr. Jensen in contempt of court for being “generally uncooperative and disrespectful.” The court immediately sentenced him to thirty days incarceration. A transcript of the hearing reveals, however, that the judge neither gave Mr. Jensen an opportunity to show cause why he should not be found guilty of contempt, nor a chance to present evidence of excusing or mitigating circumstances before being held in contempt and sentenced. See Fla. R.Crim. P. 3.830. Additionally, we note that the basis for the contempt determination was insufficient to support such a finding.

PETITION GRANTED.

MONACO, C.J., TORPY and JACOBUS, JJ„ concur.


text:
    Scarlet HARMAN, Appellant, v. GADSDEN CORRECTIONAL FACILITY and AIG Claims Services, Inc., Appellees.
    No. 1D09-2548.
    District Court of Appeal of Florida, First District.
    Nov. 9, 2009.
    Bill McCabe, Longwood, and Thomas L. Furr, Panama City, for Appellant.
    Christopher J. Dubois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellees.
   PER CURIAM.

REVERSED and REMANDED. See Morrow v. Sam’s Club, 17 So.3d 763 (Fla. 1st DCA 2009).

KAHN, LEWIS and WETHERELL, JJ., concur.