author: MORRIS, Judge.

text:
    Frank RICHARDS, IV, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-3818
    District Court of Appeal of Florida, Second District.
    Opinion filed January 26, 2018.
    Howard L. Dimmig, II, Public Defender, and Lisa Lott, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Cerese Crawford Taylor, Tampa, for Appellee.
   MORRIS, Judge.

Frank Richards appeals his conviction after a jury trial for the offense of failing to register as a sexual predator. We find merit to the two issues he raises on appeal and therefore reverse his conviction.

I. Background

The State charged Richards with failing to register as a sexual predator (date of offense: May 1, 2014, to June 12, 2014), a third-degree felony governed by section 775.21, Florida Statutes (2013). The information titled the offense as "FAILURE TO REGISTER AS A SEXUAL PREDATOR" and charged that Richards "did fail to provide required location information, or did otherwise fail, by act or omission, to comply with the requirements of Florida Statute 775.21 ; contrary to Chapter 775.21(10)(a)."

During opening statements, Richards' counsel objected and argued that the State had never listed any witnesses to prove the element "that [Richards] knowingly failed to respond to an address verification correspondence from FDLE within three weeks of the correspondence." Defense counsel believed that this was the charged conduct because it is mentioned in section 775.21(10), the subsection cited in the information. Defense counsel stated that this was the charged conduct of which Richards was put on notice. The prosecutor stated that she had discussed with someone in the State Attorney's office that the office had charged a violation of section 775.21 and that they were going under "the 48-hour notice requirement which is actually (6)(g)." She admitted that "(10)(a) is penalty." The prosecutor asserted that the State "cited that statute and specifically pled required location information," but she admitted that "considering what we pled, it could be any of the failures in the statute ." (Emphasis added.) The trial court asked defense counsel if he was arguing that the State "didn't specifically allege (g) in the information," referring to subsection (6)(g), and defense counsel agreed, again asserting that subsection (10) was the violation charged by the State. Defense counsel referred to the standard jury instructions for section 775.21(10) and the three elements that the State must prove for that conduct and argued that that was the offense of which Richards was put on notice by the language in the information. The trial court stated that the defense was put on notice of the whole statute and that the defense had not moved for a statement of particulars. The trial court ruled that the State had given the defense broad notice and overruled the defense's objection to the opening statement.

The State presented the testimony of a detective who registered Richards in February 2014, and the registration was admitted into evidence. Richards' permanent address was on 44th Avenue in St. Petersburg, and a temporary address was in Tallahassee. A second detective testified that he registered Richards in May 2014, and this second registration was admitted into evidence. It listed Richards' permanent address as the 44th Avenue address and his temporary address as being in Tallahassee. The second detective testified that Richards never informed him that Richards had a new temporary address.

Richards' ex-girlfriend testified that she lived at the 44th Avenue address. After she and Richards were in a car accident in April 2014, he stopped spending the night at that address but once a week. On June 11, 2014, a detective came to the house, but Richards was not there. When a detective came back the next day, she told the detective where Richards was staying. A third detective testified that he attempted to conduct an address verification on June 11, 2014, at the 44th Avenue address. Richards was not there that day or the next day when the detective visited a second time. He made contact with Richards, who came into the office. The detective read Richards his Miranda rights, and Richards admitted that he had not been living at the 44th Avenue address since early May and that he had been spending the nights at a new address on 57th Avenue with his new girlfriend. Richards admitted to staying at the new address for more than five days.

During the charge conference in which the parties addressed the jury instructions to be given, defense counsel objected to the trial court giving the standard jury instruction on subsection (6)(g) because the information charged subsection (10). The prosecutor admitted that "because of the way we charged it and the fact that ... the statute controlling that is the penalty section, ... that section does not match the statute cited for the jury instruction." The trial court stated that the evidence did not support the giving of the instruction for subsection (10). The defense agreed that the trial court has the duty "to make sure the jury is properly instructed on the law pursuant to the evidence," but he objected to preserve the issue, for the same reason that he "objected to the evidence coming in the other day."

Richards testified in his defense and denied that he stayed at his new girlfriend's house. He either slept on the futon at the 44th Avenue address when he arrived home late at night or in his car in the carport of that address. He said that he lied to the detective when he said he had been staying at his new girlfriend's house.

The trial court read the jury the standard jury instruction for failing to report within 48 hours of vacating a permanent or temporary residence, tailoring the language to reflect the evidence presented by the State. See Fla. Std. Jury Instr. (Crim.) 11.15(g). The jury found Richards guilty as charged, and the trial court sentenced him to 5.67 years in prison, his lowest permissible prison sentence.

II. Analysis

A. Defective information

Richards argues that the information is fundamentally defective because it failed to cite a specific subsection of the statute violated and totally omitted essential elements of the crime. He contends that the information thus failed to put him on notice of the specific nature of the criminal charge.

"In order to sufficiently inform an accused of the allegations against him, due process requires the State to allege every essential element when charging a violation of law." Lawshea v. State, 99 So.3d 603, 606 (Fla. 2d DCA 2012) (citing Price v. State, 995 So.2d 401, 404 (Fla. 2008) ); see also Fla. R. Crim. P. 3.140(d)(1) ("Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged."). "For an information to sufficiently charge a crime it must follow the statute, clearly charge each of the essential elements, and sufficiently advise the accused of the specific crime with which he is charged." Price, 995 So.2d at 404. "The overriding concern is whether the defendant had sufficient notice of the crimes for which he is being tried." McMillan v. State, 832 So.2d 946, 948 (Fla. 5th DCA 2002). "Courts should uphold indictments and informations if they are in substantial compliance with the statutory requirements." Price, 995 So.2d at 405.

If a charging document omits an essential element of a crime, it is not necessarily rendered defective. Where the charging document "references a specific section of the criminal code which sufficiently details all the elements of the offense," it may place the defendant "on adequate notice of the crime being charged." DuBoise v. State, 520 So.2d 260, 265 (Fla. 1988) (holding that charging document which referenced section 794.011(3), Florida Statutes (1983), put defendant on notice that he was being charged with sexual battery). Further, a defect in an information is not always harmful. Rule 3.140(o) provides that

[n]o indictment or information, or any count thereof, shall be dismissed or judgment arrested, or new trial granted on account of any defect in the form of the indictment or information or of misjoinder of offenses or for any cause whatsoever, unless the court shall be of the opinion that the indictment or information is so vague, indistinct, and indefinite as to mislead the accused and embarrass him or her in the preparation of a defense or expose the accused after conviction or acquittal to substantial danger of a new prosecution for the same offense.

(Emphasis added.)

The information in this case charged that Richards "did fail to provide required location information, or did otherwise fail, by act or omission, to comply with the requirements of Florida Statute 775.21 ; contrary to Chapter 775.21(10)(a)." Section 775.21 is a very lengthy statute, taking up over seven pages in the statute book. Most of section 775.21 sets forth the definitions applicable to sexual predators and the criteria and process for designating a defendant a sexual predator. Subsection (6) addresses the numerous requirements of sexual predator registration. There are various ways to violate the statute under subsection (6), as set forth in subsections (6)(a) through (j).

Subsection (6)(g)(1) through (3) addresses various things that a predator must do in regard to a change of address. Subsection (6)(g)(1) requires the predator to "report in person to a driver's license office" "within 48 hours after any change of the predator's residence." Subsection (6)(g)(2) requires a predator to "report in person to the sheriff's office of the county in which he or she is located" "within 48 hours after vacating [his] permanent, temporary, or transient residence" if the predator has not established or maintained "another permanent, temporary, or transient residence." Further, subsection (6)(g)(3) prohibits a predator from "remain [ing] at a permanent, temporary, or transient residence after reporting his or her intent to vacate such residence" without reporting to the sheriff's office within 48 hours of the date he intended to vacate his residence.

At trial, the State proceeded on the theory that Richards violated subsection (6)(g)(2), which requires a predator to report his change of address to the sheriff's office within 48 hours, either by failing to report to the sheriff's office within 48 hours of the change or by failing to inform the sheriff's office of the change of address when he reported in May 2014. But nothing in the information informs Richards of the allegations against him; the information did not reference 775.21(6)(g) and did not include any elements of the charged offense. The information is in stark contrast to the detailed jury instructions given by the trial court. The information did cite the specific statute violated, section 775.21. However, as noted above, section 775.21 contains numerous ways to violate the statute, and the information did not cite the particular subsection within the statute that would alert Richards to the nature of his violation.

In Figueroa v. State, 84 So.3d 1158 (Fla. 2d DCA 2012), this court considered whether the information sufficiently charged the firearm element of the offense of robbery with a firearm. The information titled the count as robbery with a firearm, but in the body, it did not allege the use of a firearm and it cited only section 812.13 generally, the robbery statute. Id. at 1159-60. This court held that the information was fundamentally defective because it "totally omit[ted] an essential element of the crime" and it "did not charge violation of a specific subsection." Id. at 1161 ; see also Weatherspoon v. State, 214 So.3d 578, 584 (Fla. 2017) ("[A]n information is fundamentally defective where it fails to cite a specific section and totally omits an essential element of the crime." (alteration in original) (quoting Figueroa, 84 So.3d at 1161 )).

Also, in Lawshea, 99 So.3d at 605-06, this court held that the information was defective because it generally alleged that the defendant panhandled but it "did not allege that [he] panhandled in a prohibited place or time," as prohibited by section 23-7 of the city ordinance, "or that he did so in a prohibited manner," as prohibited by section 23-8 of the city ordinance. The information cited a provision of the city ordinance, section 23-6, but that provision only defined panhandling and did not prohibit it. This court held that because "the information failed to allege the nature of [the defendant's] violation" and "failed to cite the specific section of the ordinance that included the missing element," the information was defective and the error was fundamental. Id. at 606.

As noted above, the information in this case did not allege the essential elements of the charged offense and it did not cite a specific subsection of the statute that included the missing elements or otherwise place Richards on notice of the nature of his alleged criminal conduct. The failure to charge, however, is not per se reversible; "[g]enerally the test for granting relief based on a defect in the information is actual prejudice to the fairness of the trial." Weatherspoon, 214 So.3d at 584 (quoting Price, 995 So.2d at 404 ). The information in this case misled Richards and embarrassed him in the preparation of his defense, as indicated by his counsel's confusion regarding the charged conduct and what the State needed to prove at trial. Defense counsel objected, believing that the State had charged a different violation of the statute. Because the information lacked any elements of the offense but cited to section 775.21(10), it was reasonable for defense counsel to look to the standard jury instructions for section 775.21(10) to ascertain the elements of the charged offense. See Pewo v. State, 177 So.3d 32, 34 (Fla. 2d DCA 2015) ("Standard jury instructions are published under the authority of the Florida Supreme Court and are presumed to be correct." (citing BellSouth Telecomm., Inc. v. Meeks, 863 So.2d 287, 292 (Fla. 2003) )); see also Gross v. State, 765 So.2d 39, 48 (Fla. 2000) (Anstead, J., concurring in part and dissenting in part) (recognizing that "[t]he standard jury instructions are published to guide a trial court" in instructing the jury on the essential elements of the crime charged). During the discussion with the trial court, the State admitted that the wording of the information could include "any of the failures in the statute." Indeed, it was not clear to the trial court what conduct the State was charging until the prosecutor explained that the State was proceeding under the "48-hour notice requirement" in subsection (6)(g).

The State argues, as it did below, that the information was sufficient because it cited the statute and alleged that Richards "failed to provide required location information." Lawshea and Figueroa demonstrate that the citing of the general statute is not sufficient where it does not put the defendant on notice of the elements that constitute the charged conduct. Cf. DuBoise, 520 So.2d at 265 (holding that citing of sexual battery statute and subsection, "which specifically defines all the elements of the offense," placed defendant "on adequate notice of the crime being charged"). And while the "location information" language that was included in the information is found in subsection (10), that language is not defined in the statute or used in subsection (6)(g) or anywhere else in the statute. Further, the statute contains many requirements regarding information that a sexual predator must provide in relation to his location. Thus, the "location information" language was not sufficient to put Richards on notice that he had failed to update his residence information with the sheriff's office within 48 hours of moving.

In sum, Richards was convicted of a charge that was not made in the information, and we therefore reverse Richards' conviction for this reason.

B. Improper jury instruction

Richards also contends that the trial court committed fundamental error in instructing the jury on theories of the offense that were not charged in the information. Where the jury is instructed on an alternate theory of the charged crime but that alternate theory was not charged in the information, it is fundamental error if it is clear that the jury returned a verdict on that uncharged theory. Jaimes v. State, 51 So.3d 445, 449, 451 (Fla. 2010) (holding that trial court committed fundamental error in instructing jury on great bodily harm theory of aggravated battery where information charged only deadly weapon theory of aggravated battery and jury returned special verdict finding defendant guilty of the uncharged great bodily harm theory); cf. State v. Weaver, 957 So.2d 586, 589 (Fla. 2007) (declining to find fundamental error where jury was instructed on uncharged theory of aggravated battery as well as charged theory and where jury returned a general verdict and no evidence was presented on the uncharged theory, thus indicating that uncharged theory was not in dispute and was not the basis for jury's verdict).

This issue is directly related to the first issue. It is clear that the jury returned a verdict on the theory or theories that were uncharged because those were the only theories on which the jury was instructed. See Wunsch v. State, 150 So.3d 869, 872 (Fla. 2d DCA 2014) ("The only option available to the jury for convicting [defendant] of child neglect with great bodily harm under the erroneous jury instruction was on the ground of an uncharged theory of guilt."). Although such an error is fundamental, we note that counsel's objection to the jury instructions was sufficient to preserve this error for review. See Wong v. State, 212 So.3d 351, 358 (Fla. 2017).

Reversed and remanded for discharge.

CRENSHAW and SLEET, JJ., Concur.

      The standard jury instruction applicable to section 775.21(10) specifically refers to correspondence from the Florida Department of Law Enforcement and requires the defendant to have either "knowingly failed to respond to address verification correspondence from the Florida Department of Law Enforcement within three weeks from the date of the correspondence" or to have "knowingly provided false registration information by act or omission." Fla. Std. Jury Instr. (Crim.) 11.15(h).

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

      There are ten separate standard jury instructions relating to the various violations of subsection (6). See Fla. Std. Jury Instr. (Crim.) 11.15, 11.15(a)-(g), (i), (j). There are two more standard jury instructions relating to other subsections in section 775.21, namely subsections (10)(a) and (8)(a). See Fla. Std. Jury Instr. (Crim.) 11.15(h), (k).

      Florida Standard Jury Instruction (Crim.) 11.15(g) sets forth the different ways of committing an offense under section 775.21(6)(g).

      The trial court instructed the jury, in relevant part, that in order to convict Richards, it needed to find that
      3. [Richards]
      a. knowingly failed to report in person to an office of the sheriff of Pinellas County within 48 hours of vacating his permanent or temporary residence and failing to establish or maintain another permanent or temporary address.
      or
      b. reported to an office of the sheriff of Pinellas County, Florida and knowingly failed to provide that office with any one or more of the following items: a temporary address or a permanent address.
      The information, on the other hand, merely alleged that Richards "did fail to provide required location information, or did otherwise fail, by act or omission, to comply with the requirements of Florida Statute 775.21 ; contrary to Chapter 775.21(10)(a)."


source: Caselaw Access Project

author: Jay, J.

license: Public Domain

text:
    Ana Patricia DELGADO, individually, as mother of Ashley Nunez, deceased, and as personal representative of the estate of Ashley Nunez ; and John D. Nunez, individually, and as father of Ashley Nunez, deceased, Appellants, v. AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-5786
    District Court of Appeal of Florida, First District.
    January 26, 2018
    Floyd B. Faglie of Staunton & Faglie, PL, Monticello, for Appellants.
    Twyla L. Sketchley of The Sketchley Law Firm, P.A., Tallahassee, for the Academy of Florida Elder Law Attorneys; and Ellen S. Morris of Elder Law Associates, P.A., Boca Raton, for the Elder Law Section of the Florida Bar, Amici Curiae in support of Appellants.
    Pamela Jo Bondi, Attorney General, Jonathan A. Glogau, Special Counsel, and Elizabeth Teegan, Assistant Attorney General, Tallahassee; and Tracy George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   Jay, J.

We have for review the Final Order of the administrative law judge ("ALJ") in which he determined that Appellee Agency for Health Care Administration ("AHCA") is entitled to $357,407.05 in satisfaction of its Medicaid lien, that sum to be deducted from the proceeds of a third-party wrongful death settlement payable to Appellants: Ana Patricia Delgado and John Nunez, individually, as the parents of Ashley Nunez, and Ana Patricia Delgado as the personal representative of the estate of Ashley Nunez. Because we conclude that the ALJ erred in ignoring the clear language contained in the parties' Joint Pre-Hearing Stipulation by finding that Appellants, collectively, could not contest the amount of the lien, we reverse.

I.

In February 2011, four-year-old Ashley Nunez tragically died due to complications stemming from the hypoxic brain injury she suffered one year earlier while being treated for pneumonia. Medicaid covered the expenses associated with Ashley's medical care, which totaled $357,407.05. Following her death, Ashley's parents-Appellants-filed a wrongful death action against several physicians, two hospitals, and an ambulance company involved in Ashley's care. In compliance with the provisions of Florida's "Medicaid Third Party Liability Act," section 409.910, Florida Statutes (2016), Appellants informed AHCA of the wrongful death action. See § 409.910(5), Fla. Stat. (2016). Accordingly, AHCA asserted its right to a lien "for the full amount of medical assistance provided by Medicaid" on behalf of Ashley. § 409.910(6)(c), Fla. Stat. (2016).

In addition to a claim on behalf of Ashley's estate brought by Ashley's mother as personal representative, the wrongful death action included individual claims brought by Appellants, as Ashley's survivors. Appellants therefore claimed damages due to mental pain and suffering, loss of support, services, and companionship, and also for funeral expenses. See §§ 768.20 & 768.21, Fla. Sta. (2016). Ultimately, the wrongful death action against all defendants was resolved through a series of confidential settlements. Appellants received a total of $2,250,000.

Based on the formula set forth in section 409.910(11)(f), Florida Statutes (2016), AHCA calculated the amount it was due to recover from the third-party settlement to be $791,814.84. But, because Ashley's actual medical expenses of $357,407.05 were less than that amount, AHCA was limited to recovering the lesser amount in satisfaction of its Medicaid lien. See § 409.910(11)(f) 4., Fla. Stat. (2016). However, as the ALJ acknowledged in the Final Order, "when AHCA has not participated in or approved a settlement, the administrative procedure created by section 409.910(17)(b)[, Florida Statutes (2016) ], serves as a means for determining whether a lesser portion of a total recovery should be allocated as reimbursement for medical expenses in lieu of the amount calculated by application of the formula in section 409.910(11)(f)." Specifically, when, in this case, Appellants placed the full amount of the "third party benefits"-i.e., the settlement funds-in an interest-bearing trust account for the benefit of AHCA, as required by section 409.910(17)(a), Florida Statutes (2016), the hearing provisions of the Administrative Procedure Act were activated. According to section 409.910(17)(b), the placing of the third-party benefits into the trust account constituted "final agency action," permitting the "recipient [to] contest the amount designated as recovered medical expense damages payable to the agency pursuant to the formula specified in paragraph (11)(f) by filing a petition under chapter 120 ... with the Division of Administrative Hearings." § 409.910(17)(b), Fla. Stat. (2016) (emphasis added). Section 409.910(17)(b) continues:

Final order authority for the proceedings specified in this subsection rests with the Division of Administrative Hearings. This procedure is the exclusive method for challenging the amount of third-party benefits payable to the agency. In order to successfully challenge the amount designated as recovered medical expenses, the recipient must prove, by clear and convincing evidence, that the portion of the total recovery which should be allocated as past and future medical expenses is less than the amount calculated by the agency pursuant to the formula set forth in paragraph (11)(f). Alternatively, the recipient must prove by clear and convincing evidence that Medicaid provided a lesser amount of medical assistance than that asserted by the agency.

Accordingly, Appellants filed with the Division of Administrative Hearings ("DOAH") a "Petition to Determine Amount Payable to Agency for Health Care Administration in Satisfaction of Medicaid Lien." By way of the Petition, Appellants sought to establish that the portion of the wrongful death settlement available for reimbursement to Medicaid was less than the full amount paid by Medicaid. In preparation for the evidentiary hearing, AHCA and Appellants entered into a Joint Pre-Hearing Stipulation in which Appellants acknowledged that the presumptive amount to reimburse Medicaid was $357,407.05. Importantly, AHCA "agree[d] that pursuant to § 409.910(17)(b), [Appellants] may contest the amount payable to AHCA pursuant to the formula at § 409.910(11)(f) by filing a Petition with DOAH." (Emphasis added.) As a result, AHCA admitted, for purposes of the Petition, that Appellants were permitted to contest the amount recoverable as medical expenses as allowed by section 409.910(17)(b). Due to the terms of this stipulation, whether or not Appellants could be considered, collectively, as a "recipient" within the meaning of section 409.910(17)(b) was a non-issue. Consistent with this position, at the evidentiary hearing, Appellants' attorney confirmed that according to the terms of the parties' stipulation, "the sole question" was "what portion of the settlement represents reimbursement for past medical expenses,"

since no portion of the settlement "represents reimbursement for future medical expenses." The parties, thereafter, presented the testimony of their respective expert witnesses.

In his final order, the ALJ conducted a detailed analysis of the expert testimony to find that the $2,250,000 settlement was only a "small percentage" of what the "full measure" of damages would have been in the present case. Accepting the testimony of Appellants' experts, the ALJ found that had the case gone to trial, the amount of damages recoverable by Appellants would have totaled $8,857,407.05, representing the sum of the anticipated $8,500,000 in damages recoverable by Ashley's parents, plus the $357,407.05 in medical expenses recoverable by Ashley's estate. The ALJ went on to find, based on one expert's opinion, that "the $2,250,000 settlement represents a 25.4 percent recovery of the full $8,857,407.05 of damages that Ashley's parents and Ashley's Estate actually incurred. Therefore, only 25.4 percent (i.e., $90,781.30 [sic] ) of the $357,407.05 in Medicaid payments for Ashley's care was recovered." The ALJ described the testimony of Appellants' experts as "compelling and persuasive" and found, accordingly, that Appellants had "proved by clear and convincing evidence that $90,781.39 constitutes a fair and reasonable recovery for past medical expenses actually paid by Medicaid."

Notwithstanding these findings, the ALJ went on to conduct an exhaustive analysis of the tension between the federal Medicaid Act and Florida's Medicaid Third Party Liability Act, and how the federal provisions specifically relate to section 409.910(17)(b). For reasons not pertinent to the resolution of this case, the ALJ concluded that Appellants were not "recipient[s]" for purposes of being able to contest AHCA's presumptive Medicaid lien under section 409.910(17)(b). Significantly, in a footnote, the ALJ also ruled that should his conclusion be overturned on appeal, "then a remand will be unnecessary given the undersigned's finding that $90,781.39 constitutes a fair, reasonable, and accurate share of the total recovery for past medical expenses actually paid by Medicaid."

II.

Our resolution of the issue raised in this appeal does not turn on the correctness of the ALJ's conclusion that Appellants are not statutory "recipient[s]" entitled to file a petition with DOAH, but, rather, on the Joint Pre-Hearing Stipulation in which AHCA agreed that Appellants could contest the lien. Appellants rightly contend that the ALJ "should have abided by the express and stipulated expectation of the parties."

Long ago, the Florida Supreme Court announced the enduring principle concerning pretrial stipulations: "A stipulation properly entered into and relating to a matter upon which it is appropriate to stipulate is binding upon the parties and upon the Court." Gunn Plumbing, Inc. v. Dania , 252 So.2d 1, 4 (Fla. 1971) ; accord, Dortch v. State , 137 So.3d 1173, 1176 (Fla. 1st DCA 2014) (citing Gunn and adding that "[a] stipulation cannot be 'impeached or swept aside' merely by the 'bald statement' of a party desiring to renege" (quoting State ex rel. Alfred E. Destin Co. v. Heffernan , 47 So.2d 15, 17 (Fla. 1950) ) ); Kone v. Robinson , 937 So.2d 238, 241 (Fla. 1st DCA 2006) (holding that the trial court erred in dismissing the third-party complaint against Humana Medical Plan, Inc., on the basis originally argued by Humana-that it was not a party to the contract-where Humana later stipulated it was a party to the contract, and emphasizing that Humana's stipulation to the effect that it was a party "is of some import," citing Gunn ). In fact, " 'absent a showing of fraud, misrepresentation or mistake, stipulations are binding on ... administrative agencies participating in administrative proceedings ....' " Marion Cty. v. Dep't of Juvenile Justice , 215 So.3d 621, 626-27 (Fla. 1st DCA 2017) (citation omitted) (holding "[t]he parties were bound by the Joint Stipulations, and the fact that the Department [of Juvenile Justice] subsequently changed its interpretation of the law was not a valid basis for it to unilaterally reject the Joint Stipulations and 'correct' the appellants' overpayment amounts").

The utility of pretrial stipulations and their binding effect on the parties was aptly expressed in Broche v. Cohn , 987 So.2d 124 (Fla. 4th DCA 2008), as follows:

A stipulation that limits the issues to be tried "amounts to a binding waiver and elimination of all issues not included." Esch v. Forster , 123 Fla. 905, 168 So. 229, 231 (1936). "Pretrial stipulations prescribing the issues on which a case is to be tried are binding upon the parties and the court, and should be strictly enforced." Lotspeich Co. v. Neogard Corp. , 416 So.2d 1163, 1165 (Fla. 3d DCA 1982) (citing Gunn Plumbing, Inc. v. Dania Bank , 252 So.2d 1 (Fla.1971) ). Further, "[i]t is the policy of the law to encourage and uphold stipulations in order to minimize litigation and expedite the resolution of disputes." Spitzer v. Bartlett Bros. Roofing , 437 So.2d 758, 760 (Fla. 1st DCA 1983).

Id. at 127. We wholeheartedly endorse this view. See also Garrison Corp., Inc. v. Dep't of Health & Rehab. Servs. , 662 So.2d 1374, 1377 (Fla. 1st DCA 1995) (holding that by stipulating that one of the parties operated "a place of employment" within the meaning of the Florida Clean Indoor Air Act, the Department waived its objection to that party's standing to challenge proposed rules related to the Act).

In the present case, we agree with Appellants that the ALJ erred in failing to give full force and effect to AHCA's agreement in the Joint Pre-Hearing Stipulation that Appellants had the right to contest the amount payable to AHCA pursuant to the formula set forth in section 409.910(11)(f), by filing their petition with DOAH under section 409.910(17)(b). Essentially, by its stipulation, AHCA waived any right it had to raise the point that Appellants were not "recipient[s]" under the statute.

In response to Appellants' argument on the waiver issue, AHCA asserts that the question of Appellants' right to file a petition under section 409.910(17)(b) presents, at its core, an issue of standing; and "standing in the administrative context is a matter of subject matter jurisdiction and cannot be conferred by consent of the parties." Abbott Labs. v. Mylan Pharms., Inc. , 15 So.3d 642, 651 n.2 (Fla. 1st DCA 2009) (citing Grand Dunes Ltd. v. Walton Cty. , 714 So.2d 473, 475 (Fla. 1st DCA 1998) (holding, "[i]n the administrative context, '[s]tanding has been equated with jurisdiction of the subject matter of litigation and has been held subject to the same rules, one of which is that jurisdiction of the subject matter (thus standing to bring suit) cannot be conferred by consent' " (quoting Askew v. Hold the Bulkhead-Save Our Bays, Inc. , 269 So.2d 696, 698 (Fla. 2d DCA 1972) ) ) ); cf. Godfrey v. Reliance Wholesale, Inc. , 68 So.3d 930, 932 (Fla. 3d DCA 2011) (acknowledging that subject matter jurisdiction cannot be conferred by the agreement of the parties, but disagreeing with the premise in Askew "that a circuit court that otherwise had jurisdiction over the subject matter, i.e., 'the general power of the court over the case,' would lose such jurisdiction because the plaintiff may lack standing" (citing McGhee v. Biggs , 974 So.2d 524, 525-26 (Fla. 4th DCA 2008) ) ). Setting all that aside, however, we conclude that DOAH did in fact have subject matter jurisdiction to resolve the instant dispute because Appellants independently had standing to file their petition, irrespective of whether or not they were ultimately found to be "recipient[s]" for purposes of section 409.910(17)(b).

III.

" 'Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.' " Ft. Myers Real Estate Holdings, LLC v. Dep't of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering , 53 So.3d 1158, 1161 (Fla. 1st DCA 2011) (quoting Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.2d 794, 796 (Fla. 1st DCA 2006) ). As was true in Ft. Meyers , the standing issue here "involves the application of general principles of administrative law over which [AHCA] has no special expertise[.]" Id. (citing Doyle v. Dep't of Bus. Regulation , 794 So.2d 686, 690 (Fla. 1st DCA 2001) (recognizing that a court need not defer to an agency's construction or application of a statute if special agency expertise is not required) ). Therefore, we are not required to give any deference to AHCA's legal analysis on this point. Id.

In his final order, the ALJ initially concluded as a matter of law that DOAH had "jurisdiction over the subject matter and the parties ... pursuant to sections 120.569, 120.57(1) and 409.910(17), Florida Statutes." (Emphasis added.) The ALJ did not err in reaching that conclusion, and the parties have not argued that he did. In that regard, we find particularly persuasive the Second District's explanation of administrative standing in Peace River/Manasota Regional Water Supply Authority v. IMC Phosphates Co. , 18 So.3d 1079 (Fla. 2d DCA 2009). There, the court noted that "[a]s a general proposition, '[s]tanding is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly.' " Id. at 1082-83 (quoting Hayes v. Guardianship of Thompson , 952 So.2d 498, 505 (Fla. 2006) ). The court continued:

Thus, standing depends on the nature of the injury asserted and the purpose and scope of the administrative proceeding.... It does not depend on the elements or merits of the underlying claim.... Therefore, standing-a forward-looking concept-cannot "disappear"
based on the ultimate outcome of the proceeding.

Id. at 1083 (emphasis in original) (citations omitted). Equally noteworthy is the Second District's additional observation that "chapter 120 does not actually employ the word 'standing,' " but

[u]nder the statutory language, a hearing is provided pursuant to section 120.569(1)[, Florida Statutes ], "in all proceedings in which the substantial interests of a party are determined by an agency" [and], [t]hus, the concept of "standing" in an administrative proceeding depends on whether the particular entity at issue qualifies as a "party."

Id. (quoting § 120.569(1), Fla. Stat.).

The definition of "party" in chapter 120 is a broad one. For our purposes, it includes "[s]pecifically named persons whose substantial interests are being determined in the proceeding ." § 120.52(13)(a), Fla. Stat. (2016) (emphasis added). In this case, as we have said, the ALJ acknowledged that DOAH had jurisdiction of the subject matter and the "parties"-thereby designating Appellants as "parties." More to the point, the ALJ also provided the basis as to why Appellants' "substantial interests" would be determined by the proceeding before him. As he explained in his order, AHCA "has 'an automatic lien for the full amount of medical assistance provided by Medicaid to or on behalf of the recipient for medical care furnished ... by which a third party is or may be liable ....' " See § 409.910(6)(c), Fla. Stat. (2016). As the ALJ described it, "[t]his Medicaid lien is iron-clad." No settlement impairs the lien. See § 409.910(13), Fla. Stat. (2016).

The end result, as the ALJ recognized, is that AHCA is empowered to reach into Appellants' $2,250,000 settlement and remove $357,407.05 in order to satisfy its Medicaid lien-even if that amount exceeds the pro rata portion of the settlement attributable to medical care. See §§ 409.901(28) & 409.910(7), Fla. Stat. (2016) (respectively, defining "third-party benefit" and permitting AHCA to recover third-party benefits from "[a]ny person who has received the third-party benefits"). Consequently, Appellants have at least a $357,407.05 "stake" in the outcome of this action. Sun States Utils., Inc. v. Destin Water Users, Inc. , 696 So.2d 944, 945 n.1 (Fla. 1st DCA 1997) ("Standing to maintain a lawsuit depends on whether the party has a personal stake in the outcome of the proceeding, such as an injury that may be redressed by the suit."); see also Ft. Meyers , 53 So.3d at 1162 ("The applicant is a 'party' to the permitting proceeding by operation of law because it is the specifically named person whose substantial interests are being determined by the agency's denial of the permit.") We hold that Appellants' stake is sufficient to constitute a "substantial interest" for the sake of their party status and DOAH's subject matter jurisdiction.

IV.

Having now determined that Appellants had standing to bring the instant administrative proceeding, and that subject matter jurisdiction is not an issue, we reject AHCA's effort to repudiate its agreement in the Joint Pre-Hearing Stipulation that Appellants could contest AHCA's lien under section 409.910(17)(b). By that agreement, AHCA waived its right to argue to the contrary. Because the ALJ erred in not giving effect to this important stipulation, we are required to reverse the Final Order. See § 120.68(7)(c), Fla. Stat. (2016). However, remand for further evidentiary proceedings is unnecessary given the ALJ's "finding that $90,781.39 constitutes a fair, reasonable, and accurate share of the total recovery for past medical expenses actually paid by Medicaid." Accordingly, we reverse the Final Order and, in conformance with the clear findings and intent of the ALJ, remand the cause solely for the entry of an amended final order reducing AHCA's lien to $90,781.39.

REVERSED and REMANDED with directions.

B.L. Thomas, C.J., and M.K. Thomas, J., concur.

      Both Appellants and AHCA submitted proposed final orders to the ALJ setting forth their respective positions. Although, in its proposed order, AHCA raised for the first time the notion that only a "living" recipient of Medicaid could contest the amount of AHCA's lien under section 409.910(17)(b), the overriding theory expressed in its proposed order was not that Appellants could not challenge the lien, but that Appellants had not proved by clear and convincing evidence "that a lesser portion of the total recovery [by Appellants] should be allocated, as medical expenses, than the amount calculated by [AHCA] ...." Thus, in the end, AHCA abandoned its "recipient" argument. Only once the ALJ entered his final order did it become apparent that the question of Appellants' status under section 409.910(17)(b) was the deciding factor. Although Appellants are challenging the issue by arguing-for the first time on appeal-that AHCA waived the point in the Joint Pre-Hearing Stipulation, we consider the argument to be reviewable since "neither the Florida Administrative Procedure Act nor any rule of procedure provides for the filing of a motion for rehearing of final agency action." Stasinos v. State, Dep't of Bus. & Prof'l Regulation , 209 So.3d 18, 21 (Fla. 4th DCA 2016) (citing Sys. Mgmt. Assocs. v. State, Dep't of Health & Rehab. Servs. , 391 So.2d 688, 691 (Fla. 1st DCA 1980) ).


author: CRENSHAW, Judge.

text:
    Hadi A. HAKKI, M.D., Appellant, v. GALENCARE, INC., a Florida corporation, d/b/a Northside Hospital, Appellee.
    Case No. 2D16-4644
    District Court of Appeal of Florida, Second District.
    Opinion filed January 31, 2018
    John D. Goldsmith and Bradley A. Muhs of Trenam, Kemker, Scharf, Barkin, Frye, O'Neil & Mullis, P.A., Tampa, for Appellant.
    Thomas E. Warner, Dean A. Morande, and Michael D. Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellee.
   CRENSHAW, Judge.

Dr. Hadi Hakki appeals the trial court's order dismissing with prejudice his second amended complaint for defamation and defamation by implication against Northside Hospital. Because the trial court erred in concluding that Dr. Hakki failed to sufficiently plead intentional fraud on the part of the hospital, we reverse.

In his second amended complaint, Dr. Hakki alleged that after he was named chief of surgery at the hospital in 2007, he discovered that the hospital was filing false reports regarding cardiac surgery mortality, morbidity, complications, and other data to the Society of Thoracic Surgery, which, in turn, reports this data to the Center for Medicare and Medicaid Services (CMS). The hospital allegedly made these false, inflated reports so that it could obtain higher reimbursements for its services from CMS. When Dr. Hakki confronted the hospital regarding the fraudulent reporting, it not only refused to take any action, it continued to file the fabricated reports and "threatened Dr. Hakki that [the hospital] would destroy Dr. Hakki's career if Dr. Hakki did not keep quiet." Because the hospital continued to file the fraudulent reports, Dr. Hakki reported the hospital to authorities. Once the hospital learned of Dr. Hakki's refusal to heed its threat, "Chief Medical Officer Nutinsky told Dr. Hakki that ... President Daugherty directed Nutinsky to take whatever action was necessary [to] destroy Dr. Hakki's career, starting with the removal of his medical staff privileges at [the hospital] and making adverse reports about Dr. Hakki to governmental agencies." (Emphasis added).

Dr. Hakki further alleged that in 2008 he met with Wassemer, a member of the hospital's board of trustees; Salazar, the hospital's chief of staff; and Nutinsky, at which point they

demanded that Dr. Hakki voluntarily relinquish his ... medical staff privileges in Vascular Surgery, and threatened that if Dr. Hakki did not comply [the hospital], Wassemer, Salazar[,] and Nutinsky would recommend to the [medical executive committee] and the [hospital's] Board of Trustees that Dr. Hakki's ... medical staff privileges be revoked or not renewed, and further threatened that [the hospital] will report Dr. Hakki to the National Practitioner's Data Bank [NPDB], stating that this NPDB report will ruin his career since no hospital in the country will approve staff privileges thereafter, and no other state will grant him a medical license. When Dr. Hakki refused [the hospital's] request, in a later conversation, with Nutinsky, to relinquish his vascular staff privileges, Nutinsky told Dr. Hakki that Dr. Hakki's report of [the hospital's] fraudulent reporting was the cause of all Dr. Hakki's problems and that [the hospital] would report Dr. Hakki to the NPDB and destroy his career.

According to Dr. Hakki, the hospital, through Nutinsky, made good on its threat by knowingly making false representations to the hospital's board of trustees regarding Dr. Hakki with the intent that the board would rely on the false representations and deny the reappointment of Dr. Hakki's staff privileges-which it did. As a result, and as part of its compliance with 45 C.F.R. § 60.12 (2010), the hospital then filed an adverse action report containing those false representations with the NPDB, which incorporated the false information into its database-a tool utilized by hospitals, professional societies, state licensing boards, insurance providers, malpractice carriers, and patients to obtain information about physicians such as Dr. Hakki. Attached to his complaint, Dr. Hakki included the NPDB report as well as letters from his physician colleagues who had personal knowledge that the information contained in the NPDB report was false. He alleged that the hospital intentionally filed this false adverse action report to punish him for exposing the hospital's fabrication of cardiac surgery data to CMS and that he has suffered a multitude of damages as a result.

The hospital moved to dismiss Dr. Hakki's second amended complaint on the basis that it was immune from the suit pursuant to sections 395.0191(7) and 395.0193(5), Florida Statutes (2010), because Dr. Hakki's allegations arose out of or were related to actions taken by the hospital during the reappointment and internal investigation processes surrounding Dr. Hakki's staff privileges. The hospital contended that Dr. Hakki could not overcome the statutory immunities because he failed to plead, with particularity, the existence of extrinsic evidence of intentional fraud on the part of the hospital as Dr. Hakki's allegations of false representations concern matters intrinsic to the hospital's actions in carrying out its duties under the statutes. Dr. Hakki responded that the immunities did not apply because his allegations concern the report provided to the NPDB, which is protected by 42 U.S.C. § 11137(c) (2006), not sections 395.0191(7) and 395.0193(5), and even if the immunities did apply, he specifically alleged that the hospital engaged in intentional fraud.

Relying on Lawnwood Medical Center, Inc. v. Desai, 54 So.3d 1027 (Fla. 4th DCA 2011), the trial court agreed with the hospital that the immunity in section 395.0191(7) barred Dr. Hakki's suit because his allegations arose out of the hospital's actions "relating to [Dr. Hakki's] application for reappointment for staff membership and clinical privileges" and he "failed to plead acts of intentional fraud by [the hospital] in order to avoid dismissal."

We review the trial court's dismissal de novo. Brooke v. Shumaker, Loop & Kendrick, LLP, 828 So.2d 1078, 1080 (Fla. 2d DCA 2002) (citing Value Rent-A-Car, Inc. v. Grace, 794 So.2d 619 (Fla. 2d DCA 2001) ). Dr. Hakki argues that the immunity does not apply because his allegations concern representations made in the NPDB report-conduct that occurred outside of the reappointment process-and, even if the immunity does apply, he pleaded the existence of extrinsic evidence of intentional fraud on the part of the hospital sufficient to overcome the immunity. The hospital responds that it is immune because the filing of the NPDB report arose out of the reappointment process and Dr. Hakki's complaint includes only unspecified, conclusory allegations of fraud.

We conclude that, even assuming Dr. Hakki's complaint arose out of the reappointment process such that the immunity in section 395.0191(7) applies, the trial court nevertheless erred in its determination that Dr. Hakki failed to plead acts of intentional fraud on the part of the hospital. The trial court correctly observed that Dr. Hakki had the burden to plead extrinsic evidence of intentional fraud with particularity in order to avoid the immunity under section 395.0191(7). See Dhaduvai v. Belsito, 663 So.2d 1356, 1357 (Fla. 2d DCA 1995) (citing Feldman v. Glucroft, 522 So.2d 798 (Fla. 1988) ); Desai, 54 So.3d at 1030. The requirement to allege the existence of extrinsic evidence derives from section 395.0191(8)'s prohibition on discovery and admission into evidence of the "investigations, proceedings, and records of the board ... in any civil action against a provider of professional health services arising out of matters which are the subject of evaluation and review by such board." See also Dhaduvai, 663 So.2d at 1357. But, that statute goes on to clarify that

information, documents, or records otherwise available from original sources are not to be construed as immune from discovery or use in any such civil action merely because they were presented during proceedings of such board; nor should any person who testifies before such board or who is a member of such board be prevented from testifying as to matters within his or her knowledge, but such witness cannot be asked about his or her testimony before such a board or opinions formed by him or her as a result of such board hearings.

§ 395.0191(8) ; cf. Feldman, 522 So.2d at 800-01 (discussing an analogous pleading requirement).

Accepting the allegations in the complaint as true and construing them in the light most favorable to him, see Brooke, 828 So.2d at 1080, Dr. Hakki sufficiently pleaded the existence of extrinsic evidence of intentional fraud with particularity. Unlike the doctor in Desai, who "generally alleged the Board 'arbitrarily, capriciously, fraudulently, and maliciously denied' his application," 54 So.3d at 1030, here, Dr. Hakki provided particularized allegations regarding specific statements the hospital made to Dr. Hakki before the reappointment process began demonstrating that the hospital engaged in intentional fraud by knowingly making false statements in an adverse action report to the NPDB in order to ruin Dr. Hakki's career as retaliation for his whistleblowing actions. He also provided the NPDB report-a record available from the NPDB, not from the board-and letters from witnesses who had personal knowledge that the information contained in the report was false. Cf. Feldman, 522 So.2d at 801 ("The shield of confidentiality protects what is presented or spoken to the committee at its meetings. If that information is available from other than committee sources, then it may be used in a defamation action, which must be based on ... intentional fraud ...."). Thus, Dr. Hakki's allegations show that he could present evidence not protected by section 395.0191(8) demonstrating that the hospital engaged in intentional fraud by scheming to manipulate the reappointment and NPDB reporting processes through the use of false statements in order to destroy Dr. Hakki's career.

Accordingly, we reverse the order dismissing Dr. Hakki's complaint with prejudice and remand for further proceedings.

Reversed and remanded.

MORRIS and ROTHSTEIN-YOUAKIM, JJ., Concur.


author: SLEET, Judge.

text:
    Broderick FURLOW, DOC# S37568, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-1565
    District Court of Appeal of Florida, Second District.
    Opinion filed February 2, 2018.
    Howard L. Dimmig, II, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Darla Dooley, Assistant Attorney General, Tampa, for Appellee.
   SLEET, Judge.

Broderick Furlow appeals his judgment and sentences for two counts of using a computer to commit lewd or lascivious exhibition, a second-degree felony under section 847.0135(5)(b), Florida Statutes (2013), following a jury trial. Because we agree with Furlow that the State failed to prove a violation of section 847.0135(5), we reverse.

At trial, the State presented evidence that Furlow contacted the victim on a messaging application using his phone. After the victim asked him not to contact her anymore, Furlow sent several sexually explicit messages-the content of which made it clear that he was aware the victim was only twelve years old-and sent two pictures of his genitalia. The State admitted screenshots of the messages at trial, reflecting that Furlow and the victim were exchanging messages contemporaneously with each other.

Using a computer to commit lewd or lascivious exhibition is defined as follows:

A person who ... [i]ntentionally exposes the genitals in a lewd or lascivious manner ... live over a computer online service, Internet service, or local bulletin board service and who knows or should know or has reason to believe that the transmission is viewed on a computer or television monitor by a victim who is less than 16 years of age.

§ 847.0135(5)(a) (emphasis added). Furlow contends that the trial court should have granted his motion for judgment of acquittal because transmitting a photograph is not a live exposure and therefore could never be a violation of section 847.0135(5). The State responds that it presented sufficient evidence that the pictures were sent as part of a live conversation, which it believes satisfies the language of section 847.0135(5)(a). We disagree.

Historically, the crime of lewd or lascivious exhibition has required a contemporaneity of time and place to support a conviction. See, e.g., State v. Werner, 609 So.2d 585, 586 (Fla. 1992) (explaining that to prove lewd or lascivious exhibition under section 800.04(3), Florida Statutes (1987), the State must offer evidence that the defendant committed a "lewd or lascivious act in the presence of any child" and defining presence as "encompass[ing] sensory awareness as well as physical proximity"). And Florida courts have previously reversed convictions for lewd or lascivious exhibition under section 800.04 when they were based on showing a photograph to the victim. See Adams v. Culver, 111 So.2d 665, 666 (Fla. 1959) (holding that showing a child a "lewd and pornographic picture" did not support a conviction for lewd or lascivious exhibition under section 800.04 and explaining that it would support a charge under section 847.01, Florida Statutes (1957), which prohibited showing a lewd photograph to a minor); Brady v. State, 553 So.2d 316, 317 (Fla. 1st DCA 1989) (concluding that throwing nude photographs from an automobile did not constitute lewd or lascivious exhibition under section 800.04 because the defendant "did not commit a lewd act in the presence of a child").

The legislature removed the requirement that the victim and the offender share the same location in 2000 when it created the offense of using a computer to commit lewd or lascivious exhibition, requiring only that the exhibition be "live over a computer on-line service." Ch. 00-246, § 1, at 2399, Laws of Fla. Although not controlling, a review of the legislative history behind section 847.0135(5)(a) is helpful to our determination. The legislature originally included this offense in section 800.04(7)(b) ; when it was enacted, the language was materially identical to the current language in section 847.0135(5)(a). Ch. 00-246, § 1, Laws of Fla. The Juvenile Justice Committee's staff analysis for the house bill recognizes that historically the offense of lewd or lascivious exhibition required that the offender and the victim "share proximity of both 'real' time and 'real' vicinity to the prohibited act" but that online services "make it possible for individuals to share proximity of time and 'virtual vicinity' though they may be physically located miles apart." Fla. H.R. Comm. on Juv. Justice, HB 683 (2000) Staff Analysis 5-6 (Jan. 27, 2000). The staff analysis reflects that accordingly, the bill was designed to address "the 'virtual vicinity' capability of the Internet. ... In other words, the bill penalizes lewd or lascivious exhibition whether it occurs 'live and in person' or 'live over the Internet.' " Id. at 6.

The plain language of section 847.0135(5)(a) requires that the lewd or lascivious exhibition occur "live" over an online service. Moreover, the history of the crime of lewd or lascivious exhibition and the legislative documents surrounding the creation of the crime of using a computer to commit lewd or lascivious exhibition support our conclusion that section 847.0135(5)(a) prohibits only live conduct; while the legislature intended to remove the requirement that the exhibition occur while the offender and the victim were in the same location, it did not remove the requirement that the act of exhibition occur contemporaneously. Although the transmission of the lewd pictures occurred as part of a live conversation between the victim and the defendant, the content of the still images was not live. As such, the State failed to prove that the exhibition was live within the meaning of section 847.0135(5)(a).

We note that the State's evidence in this case may have supported a conviction for transmission of material harmful to a minor under section 847.0138(2). See, e.g., Duclos-Lasnier v. State, 192 So.3d 1234, 1240 (Fla. 2d DCA 2016) ; Simmons v. State, 886 So.2d 399, 403 (Fla. 1st DCA 2004) (explaining that section 847.0138 "pertains to harmful images ... sent to a specific individual known by the defendant to be minor"), approved, 944 So.2d 317 (Fla. 2006). But the State did not charge Furlow with a violation of section 847.0138(2), nor did it seek a jury instruction based on section 847.0138(2). And the State has not identified, nor could we find, a Florida case upholding a conviction for lewd or lascivious exhibition under section 847.0135(5) or section 800.04 based on the transmission of still images. Without any evidence that Furlow exposed himself live over the Internet or another online service, we are constrained to reverse Furlow's convictions under section 847.0135(5). See Lifka v. State, 530 So.2d 371, 376 (Fla. 1st DCA 1988) ; see also Hutchinson v. State, 315 So.2d 546, 547 (Fla. 2d DCA 1975) ("[I]t is ... axiomatic that statutes creating and defining crimes cannot be extended by construction or interpretation to punish an act, however wrongful, unless clearly within the intent and terms of the statute."). We remand for the trial court to vacate Furlow's judgment and sentences in this case number.

Reversed and remanded with instructions.

VILLANTI and BADALAMENTI, JJ., Concur.


author: PALMER, J.

text:
    Deryck Lee KATWAROO, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D17-2088
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 2, 2018
    Deryck Lee Katwaroo, Okeechobee, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Deryck Lee Katwaroo (the defendant) appeals the trial court's order granting in part and denying in part his "motion to review the sentence imposed on a juvenile offender for possible modification or reduction of sentence," filed pursuant to rule 3.802 of the Florida Rules of Criminal Procedure. The trial court correctly denied the motion as it was premature; however, the trial court erred in amending the defendant's sentence to provide for a review hearing without first conducting a resentencing hearing. Therefore, we reverse and remand for the trial court to treat the motion as a rule 3.800(a) motion and set this matter for resentencing.

In 1999, the defendant pled guilty to the offense of second-degree murder. We affirmed his judgment and 30-year sentence. Katwaroo v. State, 756 So.2d 254 (Fla. 5th DCA 2000).

The defendant filed this rule 3.802 motion alleging that his sentence is illegal because, according to him, he was sixteen at the time he committed the offense. See Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012) ; Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ; Kelsey v. State, 206 So.3d 5 (Fla. 2016) ; Atwell v. State, 197 So.3d 1040 (Fla 2016). Procedurally, the defendant sought relief under the wrong rule because rule 3.802 applies only after a juvenile has been resentenced pursuant to section 921.1402, Florida Statutes, and the time for a review hearing has arrived.

Nevertheless, in light of his 30-year sentence, the defendant was entitled to receive judicial review of his sentence. See Burrows v. State, 219 So.3d 910 (Fla. 5th DCA 2017), but see Davis v. State, 214 So.3d 799 (Fla. 1st DCA 2017). However, it was error for the trial court to amend the sentence to provide for a review hearing without first conducting a resentencing hearing. Davis v. State, 230 So.3d 487 (Fla. 5th DCA 2017).

Accordingly, we reverse and remand for the trial court to treat the instant motion as a rule 3.800(a) motion and to hold a resentencing hearing pursuant to section 921.1402, Florida Statutes.

REVERSED and REMANDED.

EVANDER, J. concurs

BERGER, J. concurring specially

BERGER, J., concurring specially.

I concur based on this court's decision in Davis v. State, 230 So.3d 487, 488 (Fla. 5th DCA 2017). However, were I writing on a clean slate, I would affirm. In my view, Katwaroo is not entitled to resentencing under Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) or Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), because his thirty-year sentence is not a de facto life sentence. See Davis v. State, 214 So.3d 799, 799-800 (Fla. 1st DCA 2017).


author: Per Curiam.

text:
    Robert E. BURNETT, Jr., Appellant, v. Linda M. BURNETT, Appellee.
    Nos. 1D17-384 1D17-885
    District Court of Appeal of Florida, First District.
    February 5, 2018
    Peter N. Meros, St. Petersburg, for Appellant.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellee.
   Per Curiam.

In these consolidated appeals, Robert E. Burnett, Jr., appeals from a final judgment of dissolution of marriage and an order awarding attorney's fees. He raises several issues on appeal, three of which require reversal. We affirm the other issues without comment.

On September 29, 2014, Robert Burnett filed a petition for dissolution of marriage in the trial court. The case proceeded to a bench trial, where issues related to alimony and the equitable distribution of assets were tried. The trial court evenly divided the marital assets of approximately $1.2 million between the parties, giving Ms. Burnett the marital home along with the attendant mortgage. This resulted in Ms. Burnett being awarded over $450,000 in cash and investment accounts. Additionally, after finding a significant disparity between the parties' income, the court ordered Mr. Burnett to pay his wife $5,000 per month in permanent periodic alimony. The court also ordered Mr. Burnett to secure the alimony award with a $500,000 life insurance policy, payable to Ms. Burnett.

On appeal, Mr. Burnett first asserts that the alimony award should be reversed because the court failed to make adequate findings regarding the need for alimony. We agree. "In determining whether to award alimony or maintenance, the court shall first make a specific factual determination as to whether either party has an actual need for alimony or maintenance and whether either party has the ability to pay alimony or maintenance." § 61.08(2), Fla. Stat. After making an initial determination that alimony should be awarded the court must then consider the factors enumerated in section 61.08(2) before determining the type and amount of alimony to award. Id. ; Winder v. Winder , 152 So.3d 836, 840 (Fla. 1st DCA 2014). " 'The financial needs of one spouse and the ability of the other spouse to pay are the primary factors for the trial court to consider,' and '[a] lack of adequate findings hampers meaningful appellate review.' " Justice v. Justice , 80 So.3d 405, 408 (Fla. 1st DCA 2012) (quoting Austin v. Austin , 12 So.3d 314, 317-18 (Fla. 2d DCA 2009) ). Thus, this Court will reverse when "the final judgment does not reveal how the trial court arrived at the sum of" alimony it awarded, particularly when the evidence is conflicting. Winney v. Winney , 979 So.2d 396, 401 (Fla. 1st DCA 2008).

In this instance, we do not know how the trial court arrived at the alimony figure. That is, the final judgment "lacks clear findings as to how it reached the alimony award." Winder , 152 So.3d at 841. For instance, although the court made findings regarding the parties' incomes, we see no findings about Ms. Burnett's monthly living expenses, which Mr. Burnett vigorously contested. Without more, we cannot determine how the trial court arrived at the sum of $5,000 per month in alimony, or whether that figure is appropriate.

Second, pursuant to section 61.08(3), Florida Statutes, the trial court ordered Mr. Burnett to secure the alimony award with $500,000 in life insurance. However, "[i]n order to support the life insurance requirement, the trial court must make specific evidentiary findings as to the availability and cost of insurance, the obligor's ability to pay, and the special circumstances that warrant such security." Kotlarz v. Kotlarz , 21 So.3d 892, 893 (Fla. 1st DCA 2009) ; see also Gotro v. Gotro , 218 So.3d 494, 498 (Fla. 1st DCA 2017). The trial court did not make these findings. Thus, we agree with Mr. Burnett that the life insurance requirement also must be reversed so that necessary findings can be made.

Finally, Mr. Burnett asserts that the trial court erred in requiring him to pay one-hundred percent of Ms. Burnett's attorney's fees. The primary considerations for an award of attorney's fees under section 61.16, Florida Statutes, are the party's need and the other party's ability to pay. See Shawfrank v. Shawfrank , 97 So.3d 934, 936 (Fla. 1st DCA 2012). An award of attorney's fees cannot be "based solely on disparity of income," but rather the court should consider the overall financial position of the parties. Arena v. Arena , 103 So.3d 1044, 1046 (Fla. 2d DCA 2013) ; see also Morris v. Morris , 743 So.2d 81, 82 (Fla. 5th DCA 1999) ("[A]n entire line of cases ... hold that an award of attorney's fees pursuant to section 61.16 is improper where both parties have ample means to obtain competent counsel, and an equitable distribution of the marital assets has already been affected outside the award of fees."). In this case, the court's findings indicate that it limited its analysis on the superior ability of Mr. Burnett to pay without accounting for the significant liquid award Ms. Burnett received in the equitable distribution. This was error where Ms. Burnett appears "able to pay some portion of her litigation fees without suffering an inequitable diminution of her assets." Von Baillou v. Von Baillou , 959 So.2d 821, 825 (Fla. 4th DCA 2007). Accordingly, we reverse the award of attorney's fees and remand for the trial court to take account of both parties' ability to pay.

AFFIRMED in part, REVERSED in part, and REMANDED .

Roberts, Ray, and Osterhaus, JJ., concur.


text:
    Rodney W. STEWART, Husband, Appellant, v. Darla Jane STEWART, Wife, Appellee.
    No. 1D15-3537
    District Court of Appeal of Florida, First District.
    February 5, 2018
    E. Jane Brehany, Pensacola, for Appellant.
    Gregory D. Smith of Gregory D. Smith, P.A., and Kathleen E. Anderson of Anderson & Runco, Pensacola, for Appellee.
   Per Curiam.

The appellee, Darla Jane Stewart (the former wife), and the appellant, Rodney W. Stewart (the former husband), were married from March 2007 to June 2013 when the former wife filed for divorce. The former husband followed with a counter petition for divorce. After the trial court entered an amended final judgment in which it adopted the former wife's schedule of marital assets and liabilities almost entirely, the former husband filed this appeal challenging several aspects of the trial court's equitable distribution. We agree that the amended final judgment should be reversed and remanded as detailed in this opinion.

BB & T Account

In his first issue on appeal, the former husband argues that the trial court erred in valuing the balance of his BB & T account at $58,380.75, which was the balance the time the divorce petition was filed, instead of using the $3,305.75 balance of the account at the time of the final hearing. We agree with the former husband that this valuation was in error.

In equitable distribution under section 61.075(7), Florida Statutes (2015), the trial court has discretion to select the valuation date of a marital asset and may value different assets as of different dates. Generally, it is error to include diminished or dissipated assets in equitable distribution unless the asset has been reduced due to a party's misconduct. See Gotro v. Gotro , 218 So.3d 494, 496 (Fla. 1st DCA 2017) (citing Winder v. Winder , 152 So.3d 836, 838 (Fla. 1st DCA 2014) ). Assignment of a dissipated asset due to misconduct requires a specific finding by the trial court based on evidence that the martial funds were used for one party's own benefit for a purpose unrelated to the marriage. Gotro , 218 So.3d at 496-97. Here, the trial court made no finding of misconduct, and the evidence would not support such a finding. The undisputed testimony at the final hearing showed that the former husband's income had diminished considerably in recent years and that he was forced to use monies from the BB & T account to satisfy the temporary support obligations to the former wife, which included $1,500 a month in temporary alimony and $6,000 of the former wife's initial attorney's fees, as well as to pay the costs of the divorce proceedings. As there was no evidence of misconduct and the testimony showed the money was diminished to pay marital expenses during the proceedings, the trial court abused its discretion in assigning the entire $58,380 balance to the former husband in equitable distribution. We reverse the equitable distribution portion of the amended final judgment and remand with instructions to exclude the dissipated value of the BB & T account.

Rod Stewart Engineering

The former husband next argues that the trial court erred in assigning a positive value for Rod Stewart Engineering to him when the company was a pre-marital asset that had decreased in value during the marriage. The evidence at the final hearing showed that the former husband had owned Rod Stewart Engineering since 1995, well before the parties' 2007 marriage. The evidence also showed that during the first few years of the parties' marriage, the business was profitable, with its profits declining from 2010 onward. The first year of loss for the business was 2013. Enhancement in value and appreciation of a non-marital asset due to either parties' marital labor is a marital asset. See § 61.075(6)(a) 1.b., Fla. Stat. (2015). While there may have been an argument for assigning some positive value to the business as a result of marital labor, the wife carried the burden of proving the value of enhancement. See Pereboom v. Pereboom , 959 So.2d 1205, 1206 (Fla. 4th DCA 2007). The wife failed to meet her burden. Id. Thus, we reverse this portion of the amended final judgment and remand with instructions to exclude the $19,498 in enhanced value of the non-marital asset.

Marital Home

The former husband advances a similar argument with regard to the trial court's decision to assign a $6,000 positive value for parties' martial home on Arnie's Way to him. The former husband purchased Arnie's Way in 1992, well before the parties were married. Arnie's Way had a mortgage of $27,000 at the time of the marriage. Shortly after the marriage, the former husband took out a $230,000 loan from the property, which was used to purchase property on West Garden Street. The parties agreed that the value of Arnie's Way at the time of the final hearing was $170,000. The former husband argues that the trial court erred in assigning a positive $6,000 value to him for Arnie's Way because only enhancement of a marital asset is subject to distribution and all of the evidence demonstrated that the non-marital Arnie's Way had only decreased in value by $60,000 during the marriage. This argument is misplaced as the $230,000 loan did not establish a conclusive value of Arnie's Way at a period early in the marriage. Furthermore, the former wife and her father testified that they had expended considerable efforts in fixing up Arnie's Way; however, they failed to offer any evidence as to the specific value of their labor. The former wife's attorney simply argued that her labor amounted to $20,000 in enhancements, but she was only seeking a "de minimis" amount of $6,000. The trial court accepted the $6,000 figure outright and assigned that value to the former husband. Because the trial court made no findings with regard to Arnie's Way other than to assign a $6,000 value, which did not have an evidentiary basis, this valuation is reversed and remanded for recalculation.

West Garden Street Property

The former husband argues that the trial court erred in establishing the mortgage balance on the West Garden Street property at $182,000 when the evidence clearly showed the balance was $186,349. The former wife concedes error. The West Garden Street valuation is reversed and remanded for recalculation.

Honda Odyssey

The former husband challenges the trial court's decision to assign a $5,000 value for a Honda Odyssey to him when he claims the evidence showed the former wife drove the Odyssey, it became inoperable under her care, and she failed to apply the insurance proceeds to repair the vehicle. This argument is misplaced as the only evidence of the valuation of the Odyssey came from the husband's own financial affidavit listing its value at $5,000. Further, while there was testimony that the former wife drove the vehicle, the testimony also showed that the former husband's name was on the title, which he refused to sign over to the former wife. As such, the trial court properly assigned a $5,000 value for the Odyssey to the former husband.

Personal Property

Finally, the former husband argues that the trial court erred in placing a value on the personal property of the marriage of $38,660, as reflected in error in the former husband's first financial affidavit, as opposed to the corrected $15,795 value on the former husband's amended financial affidavit. The former husband did testify that the value of the personal property in his amended financial affidavit was the correct amount. The trial court did not make any specific findings as to the value of the particular items being distributed; therefore, is unclear as to whether this valuation was inequitable given the former husband's testimony. The personal property amount is also remanded for recalculation.

The amended final judgment is reversed and remanded as detailed above. The remainder of the amended final judgment is affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED .

Wolf, Roberts, and Wetherell, JJ., concur.


author: BLACK, Judge.

text:
    Antonio SORIA, Appellant, v. Lucinda L. SORIA, Appellee.
    Case No. 2D17-1566
    District Court of Appeal of Florida, Second District.
    Opinion filed February 7, 2018
    Theodore J. Rechel of Rechel & Associates, P.A., Tampa, for Appellant.
    Lucinda L. Soria, pro se.
   BLACK, Judge.

Antonio Soria (the former husband) challenges the final judgment dissolving his marriage to Lucinda Soria (the former wife). He contends that the court made several errors with regard to the valuation of his company for purposes of equitable distribution and made several errors with regard to the awards of permanent periodic alimony and retroactive alimony. For the reasons set forth in this opinion, we affirm the dissolution of marriage but reverse those portions of the final judgment related to equitable distribution and alimony and remand for further proceedings.

Equitable distribution

The parties were married in April 1988. The former husband filed a petition for dissolution of marriage in June 2014, and the former wife filed a counter-petition several months later. The trial was held on November 28, 2016, December 19, 2016, and January 23, 2017. The former husband testified that he founded Advanced Biomedical Concepts, LLC (ABC), in 2012 for the purpose of consulting with doctors to assist them in bringing their ideas to market. The former husband created ABC by purchasing the wound care product division of Medical GMBH, which had previously employed the former husband. As a result of that purchase-which included technology and equipment-ABC remained indebted to Medical GMBH in an amount in excess of $400,000. The balance of the purchase price was to be paid in three installments between July 2013 and July 2015, but ABC had been unable to fulfill this obligation due to money shortages and other issues that had arisen. ABC's profit and loss statements and balance sheets from 2013 to 2016 were admitted into evidence; the 2016 financial statements were up to date through September 2016 with projections through the end of December 2016. ABC's assets varied between $147,000 and $190,000, and liabilities varied between $9000 and $76,000. The former husband testified that ABC was in "start-up mode" and that, based on his knowledge of the business, it had no actual value. The former husband further explained that he is a crucial part of any value that the business may have and that the business could not function without him.

At the time the petition for dissolution was filed, the former husband owned approximately 64 percent of ABC, equating to 674,000 shares. The remaining 36 percent of the company was owned by investors, and the former husband explained that each investor's ownership interest in ABC was based upon the amount of his or her investment, with $1 equating to one share. After the petition for dissolution was filed and in contravention of the trial court's order prohibiting either party from disposing of or dissipating the value of any asset, the former husband transferred 30,000 of his shares of ABC stock to his girlfriend, who is an engineer, as compensation for the "time and energy" she invested "to keep the company alive."

During closing argument, the former wife asserted that the value of ABC should be determined by the manner in which the former husband sought capitalization-one unit or share of ownership for each dollar invested. The trial court seemingly agreed. In the final judgment, the trial court found that the former husband owns 674,000 shares of ABC stock, including the 30,000 shares he "improperly transferred" to his girlfriend. The court found that those shares have a total value of $674,000 "based on the [former] [h]usband's testimony of how each share was acquired through the investment process." The court concluded that the former wife is entitled to 50 percent of the value of the former husband's ownership interest in ABC, or $337,000. The former husband does not dispute that his ownership interest in ABC is a marital asset subject to equitable distribution but contends that the court erred by using the "par value" of the stock as a means of assessing the value of this asset. See Par Value, Black's Law Dictionary 1298 (10th ed. 2014) (defining "par value" as "[t]he value of an instrument or security as shown on its face; esp., the arbitrary dollar amount assigned to a stock share by the corporate charter").

"We review the trial court's equitable distribution decisions for abuse of discretion and examine its valuation of marital assets to determine whether it is supported by competent, substantial evidence." Dravis v. Dravis, 170 So.3d 849, 853 (Fla. 2d DCA 2015) (citing Tradler v. Tradler, 100 So.3d 735, 738 (Fla. 2d DCA 2012) ); see also § 61.075(3), Fla. Stat. (2016) ("[A]ny distribution of marital assets or marital liabilities shall be supported by factual findings in the judgment or order based on competent substantial evidence ...."). "Proper valuations of assets are critical to the propriety of an equitable distribution scheme." Hough v. Hough, 793 So.2d 57, 59 (Fla. 2d DCA 2001) (citing Cornette v. Cornette, 704 So.2d 667, 668-69 (Fla. 2d DCA 1997) ). "The valuation of a business is calculated by determining the fair market value of the business, which is the amount [for which] a willing buyer and a willing seller would exchange assets[,] absent duress." Christians v. Christians, 732 So.2d 47, 47 (Fla. 4th DCA 1999). "Typically, fair market value measures the value of the assets of the business plus the value of goodwill." Id. at 47-48.

Enterprise goodwill, defined as the value of a business "which exceeds its tangible assets" and represents "the tendency of clients/patients to return to and recommend the practice irrespective of the reputation of the individual practitioner," is a marital asset subject to equitable distribution. Thompson v. Thompson, 576 So.2d 267, 269 (Fla. 1991). Personal or professional goodwill attributable to the skill, reputation, and continued participation of an individual is not a marital asset.

Schmidt v. Schmidt, 120 So.3d 31, 33 (Fla. 4th DCA 2013). Though neither party presented expert witness testimony as to the value of ABC, the owner of a business may testify as to its value. See Capote v. Capote, 117 So.3d 1153, 1155 (Fla. 2d DCA 2013) (citing Beaty v. Gribble, 652 So.2d 1156, 1158 (Fla. 2d DCA 1995) ).

Here the essentially arbitrary par value assigned to ABC's stock bears no relation to ABC's fair market value. The court did not specify the date on which it valued the former husband's ownership interest in ABC. See Schroll v. Schroll, 227 So.3d 232, 235 (Fla. 1st DCA 2017) ("The date for determining the value of marital assets and the amount of marital liabilities is the date or dates as the court determines is 'just and equitable under the circumstances.' " (quoting § 61.075(7) ) ). However, no matter which date the court found to be "just and equitable," the court was required to consider both ABC's assets and liabilities when assessing its value.

See Bair v. Bair, 214 So.3d 750, 754 (Fla. 2d DCA 2017). Thus not only did the court err in valuing ABC based on the capitalization scheme, the court further erred in failing to include the company's liabilities. In addition to the liabilities listed on the balance sheet, the former husband testified that ABC still owes Medical GMBH over $400,000. And though the court made no findings with regard to goodwill, the former husband testified that he is the business and that the business could not function without him. See Thompson v. Thompson, 576 So.2d 267, 270 (Fla. 1991) ("[G]oodwill, to be a marital asset, must exist separate and apart from the reputation or continued presence of the marital litigant."); accord Shaver v. Shaver, 203 So.3d 932, 937 (Fla. 2d DCA 2016).

Furthermore, as to the former husband's ownership interest in ABC specifically, the court failed to take into account the fact that its value had dissipated because the former husband had been taking loans against his stock in ABC since 2013 to pay living expenses. Cf. Bush v. Bush, 824 So.2d 293, 294 (Fla. 4th DCA 2002) (reversing award of dissipated asset when the evidence showed that the husband exercised his stock options to pay the parties' financial obligations during the dissolution proceedings). The first three promissory notes in the amount of $50,000 each were admitted into evidence; the final promissory note, representing his loans through the end of 2016, had not yet been issued at the time of trial. The 2016 balance sheet indicates that his capital account was projected to be in the negative by over $190,000. This is consistent with his testimony that he expected to owe ABC close to $200,000 by the end of 2016. The date of the valuation will of course dictate the amount by which this asset has been dissipated.

The former husband also argues that the court erred in finding that he had improperly transferred 30,000 shares of his ABC stock to his girlfriend during the dissolution proceedings. "This court has held that it is error to include assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings unless there has been misconduct during the proceedings that results in the dissipation." Bair, 214 So.3d at 758. "[T]o justify inclusion of a dissipated asset in the equitable distribution .... the evidence must show 'the spending spouse's intentional dissipation or destruction of the asset.' " Tradler, 100 So.3d at 740 (quoting Roth v. Roth, 973 So.2d 580, 585 (Fla. 2d DCA 2008) ). "Without evidence and a specific finding of misconduct, the trial court abuses its discretion in including a dissipated asset in the equitable distribution scheme." Id. at 740-41.

The former husband's unrefuted testimony was that the transfer of shares was made to his girlfriend as compensation for work she performed for ABC's benefit. Though the former husband conceded that only his shares of stock were depleted as a result of the transfer rather than a proportionate number of shares from all of the shareholders, we do not believe his actions constitute misconduct. According to the former husband, the girlfriend's efforts served the purpose of "keeping the company alive" and as such served to benefit a marital asset. Cf. Lopez v. Lopez, 135 So.3d 326, 329 (Fla. 5th DCA 2013) (concluding that the trial court did not err in allocating to the former husband depleted funds which were spent on his girlfriend).

On remand the trial court shall set a valuation date for ABC that is "just and equitable" and then determine the fair market value of ABC based on the evidence and testimony presented at trial, taking into account all of the company's assets and liabilities. Based on the revised valuation of ABC, the trial court shall reconsider the remainder of the equitable distribution as necessary.

Alimony

The former husband's remaining arguments on appeal concern the awards of permanent periodic alimony and retroactive alimony. The former husband contends that the trial court failed to make the requisite factual findings in support of the awards and that the awards are otherwise not supported by competent substantial evidence. "The trial court's award of alimony is subject to an abuse of discretion standard of review, and where the record does not contain substantial, competent evidence to support the trial court's findings regarding the amount of alimony awarded, the appellate court will reverse the award." Wabeke v. Wabeke, 31 So.3d 793, 795 (Fla. 2d DCA 2009) (quoting Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003) ).

In a long-term marriage such as the one in this case, "there is an initial presumption in favor of an award of permanent alimony." See Austin v. Austin, 12 So.3d 314, 317 (Fla. 2d DCA 2009). Specific findings of fact must be included in the final judgment to support the trial court's alimony determination, and the primary factors to be considered in making such a determination are the financial needs of one party and the ability of the other party to pay. Id."The ability to pay alimony must be based on the party's net income." Conlin v. Conlin, 212 So.3d 487, 488 (Fla. 2d DCA 2017) ; accord Hanson v. Hanson, 217 So.3d 1165, 1166 (Fla. 2d DCA 2017) ("The judgment is also deficient for failing to look to the parties' net incomes in assessing need and ability to pay." (quoting Badgley v. Sanchez, 165 So. 3d 742, 744 (Fla. 4th DCA 2015) ) ).

The former wife is disabled and "has reached her maximum earning potential"; the trial court found that the former wife's income consists solely of her social security disability benefits in the gross amount of $975.90 per month. The court further found that the former husband is capable of earning $7927 per month based on the fact that during the course of the fourteen-month litigation, $110,980 was deposited into his checking account from ABC. Based on those findings, the court concluded that the former wife has a need for alimony and the former husband has the ability to pay alimony. The court ordered the former husband to pay the former wife $2500 per month in permanent alimony. While the court did make some findings regarding the financial resources of the parties, those findings are not supported by competent substantial evidence. Further, the permanent alimony award was apparently based on gross rather than net incomes, and it appears that the court failed to take into account the parties' monthly expenses.

The former wife testified that she receives $1014 per month from social security. In addition, she testified that she also receives $459 every two weeks for workers' compensation. The only change to her income since she filed her financial affidavit in June 2016 is that she now receives approximately $75 more per month for workers' compensation. Based on these figures, the former wife's gross monthly income is actually $2008.50, significantly more than identified by the court. According to her financial affidavit, the former wife's monthly expenses total almost $4500.

The former husband testified that his "monthly income [from ABC] is around $2960." His most recent financial affidavit, which was admitted into evidence, indicates that his gross monthly income is $2916. Because his monthly expenses greatly exceed his monthly income, he finances his monthly deficit by taking loans against his ABC stock as evinced by promissory notes discussed previously with regard to the equitable distribution. The former husband admitted into evidence a letter dated September 4, 2015, signed by Dr. Bernard Kasten, chairman of the board, which provides as follows:

This is concerning the source of income for Antonio B. Soria for 2013, 2014 and 2015. There was a minimal net income from Advanced Biomedical Concepts LLC to Antonio B. Soria in 2014 for 2500.00 per month. The company gives loans to Antonio B. Soria based on outside investment to supplement his income while the company is in start up phase.

Attached to the letter were copies of three checks in the amount of $2500 made out to the former husband. Though only these three checks were admitted into evidence, the former husband testified that "[e]very time there's 2500 that goes into [his] account, it's a loan." The former husband explained that he receives around $7000 per month from ABC, with approximately $3000 representing his actual salary and the remaining amount, varying between $3000 and $5000 per month, representing the loans he takes from ABC to cover his monthly deficit of approximately $5000. The total amount received by the former husband from ABC in the fourteen months leading up to the trial was $110,980, or $7927 per month.

Based on the court's finding that the former husband is capable of earning $7927, it appears that the trial court imputed this amount in income to the former husband. "A court may impute income if a party is earning less than he could, based on a showing that he has the capability of earning more by the use of his best efforts." Alpert v. Alpert, 886 So.2d 999, 1001 (Fla. 2d DCA 2004) (quoting Ritter v. Ritter, 690 So.2d 1372, 1374 (Fla. 2d DCA 1997) ). But "[t]he imputation of income must be based 'on appropriate findings concerning the basis for imputing income and the amount imputed.' " Id. (quoting Nieboer v. Nieboer, 816 So.2d 1259, 1261 (Fla. 2d DCA 2002) ). Here the trial court failed to make the necessary findings to support its apparent imputation of income to the former husband and thus our review of the matter is hampered. See Wabeke, 31 So.3d at 796 ("A trial court's failure to make specific factual findings with regard to alimony 'may preclude meaningful appellate review[ ] and result in a case having to be reversed and remanded.' " (alteration in original) (quoting Ruberg v. Ruberg, 858 So.2d 1147, 1155 (Fla. 2d DCA 2003) ) ). And even if it is appropriate to impute income to the former husband, the court must still calculate the former husband's ability to pay alimony based on his net income-just as the court must with regard to the former wife's need for alimony. The court made no findings regarding the tax consequences of the additional sums of money loaned to the former husband by ABC. Furthermore, even if a net monthly income in the amount of $7927 is supported by the evidence, this amount only exceeds the former husband's monthly expenses by about $470. The court did not address the former husband's claimed expenses-or the former wife's, for that matter-and thus did not find any to be unreasonable or nonexistent. Therefore, it remains unclear how the court determined that the former husband had the ability to pay $2500 per month in alimony. Based on the facts and findings before us, the alimony award is clearly excessive. See Kearley v. Kearley, 745 So.2d 987, 988 (Fla. 2d DCA 1999). Despite the fact that the former wife has a need for alimony, the trial court abused its discretion in awarding alimony where there is no competent substantial evidence to support the determination that the former husband has the ability to pay. See Mills v. Johnson, 147 So.3d 1023, 1024 (Fla. 2d DCA 2014).

Many of the same issues identified with regard to the permanent alimony award are present in the award of retroactive alimony in the amount $76,500, the amount allegedly owed by the former husband for the thirty-month period between the date the dissolution petition was filed and the date of the trial. The former husband was ordered to make payments toward this award in the amount of $750 per month. " 'A trial court may award retroactive alimony when appropriate,' but an award of retroactive alimony must be based on the receiving spouse's need for alimony and the paying spouse's ability to pay." Valentine v. Van Sickle, 42 So.3d 267, 274 (Fla. 2d DCA 2010) (first quoting Cleary v. Cleary, 872 So.2d 299, 303 (Fla. 2d DCA 2004) ; and then citing Alpert, 886 So.2d at 1002 ). Here "the trial court made no findings concerning the parties' incomes during the relevant [thirty-one month] period as required by section 61.08, nor did it make any specific findings supporting its conclusion that the [former husband] had the ability to pay." See Valentine, 42 So.3d at 274. If on remand the court should again determine that it is appropriate to award the former wife permanent and retroactive alimony, such determinations shall be supported by the requisite findings and evidence.

For the reasons set forth above, we affirm the dissolution of marriage but reverse the equitable distribution and alimony awards and remand for the court to reconsider these aspects of the final judgment in conformity with this opinion.

Affirmed in part, reversed in part, and remanded with instructions.

LaROSE, C.J., and ROTHSTEIN-YOUAKIM, J., Concur.

      The record is conflicting with regard to whether the parties were married in April 1988 or April 1989. The final judgment states that the parties were married in 1988, and neither party has disputed that finding.

      At the start of trial, the former wife requested that the court order a valuation of ABC. She acknowledged that the former husband had been forthcoming with ABC's financial documents but indicated that she did not have the time or the funds to have a business valuation completed prior to trial; the former wife had already been granted a continuance in order to obtain additional financial information related to ABC. The former husband objected, and the court took the matter under advisement but never explicitly ruled on the request.

      Since the trial court included the 30,000 shares of ABC stock transferred to the former husband's girlfriend in the equitable distribution, the court presumably chose a valuation date after the transfer had occurred.


author: PER CURIAM.

text:
    Svitlana DROZDOVSKA, Appellant, v. SEMINOLE COUNTY, Florida, Appellee.
    Case No. 5D17-2662
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 6, 2018 Rehearing Denied February 26, 2018
    Svitlana Drozdovska, Holly Hill, pro se.
    David R. Kuhn, of Rissman Barrett, Hurt, Donahue McLain & Mangan, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank of Tallahassee , 377 So.2d 1150, 1152 (Fla. 1979).

PALMER, LAMBERT and EDWARDS, JJ., concur.


text:
    Alfonso RAZZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D16-2400
    District Court of Appeal of Florida, Fourth District.
    February 7, 2018
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
    ON MOTION FOR REHEARING
   Per Curiam.

We deny appellant's motion for rehearing and amended motion for rehearing, but withdraw our previously issued per curiam decision and substitute the following in its place.

Affirmed. Taylor v. State , 114 So.3d 355 (Fla. 4th DCA 2013) ; contra Lewars v. State , 42 Fla. L. Weekly D1098, --- So.3d ---- (Fla. 2d DCA May 12, 2017), review granted , No. SC17-1002, 2017 WL 4022360 (Fla. Sept. 13, 2017).

Gerber, C.J., May and Levine, JJ., concur.


text:
    Chasen Allen OTT, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D17-4087
    District Court of Appeal of Florida, Fifth District.
    Opinion filed February 9, 2018
    Amanda C. Micallef, of Law Offices of Amanda C. Micallef, P.A., Ocala, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the October 19, 2017, judgment and sentence in Case No. 2016-CF-87-A, in the Circuit Court in and for Citrus County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

SAWAYA, EVANDER and BERGER, JJ., concur.