text:
    Jeanie RUSSELL, as natural mother and legal guardian of Buddy Davis, Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION; Candida Karen Reinhardt, M.D.; University Community Hospital, Inc.; and Franklin, Favata & Hulls, P.A., n/k/a Tampa Bay Emergency Physicians, Appellees.
    No. 2D07-2691.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.

      Nancy A. Lauten and George A. Vaka of Vaka, Larson & Johnson, P.L., Tampa, for Appellant.
    James H.K Bruner, Sr., Tallahassee, and Kenneth W. Sukhia of Sukhia Law Group, PLC, Tallahassee, for Appellee Agency for Health Care Administration.
    No appearance for Appellees Candida Karen Reinhardt; University Community Hospital, Inc.; and Franklin, Favata & Hulls, P.A., n/k/a Tampa Bay Emergency Physicians.

      . Judge Davis has been substituted for Judge Stringer, who was on the original panel, and he has viewed and listened to a recording of the oral argument.

   PER CURIAM.

Appellant, the plaintiff in a medical malpractice action brought on behalf of her son, challenges the trial court’s ruling ordering full satisfaction of a Medicaid lien from the proceeds of a settlement between the appellant and the defendants in the malpractice action. For the reasons we explain, we affirm the trial court’s ruling.

Florida’s Medicaid Third-Party Liability Act, § 409.910, Florida Statutes (2006), provides the statutory basis for the assertion by appellee Agency for Health Care Administration (AHCA) of a lien against third-party benefits obtained by a Medicaid recipient for medical expenses. Section 409.910(6) provides that an application for Medicaid or the acceptance of Medicaid assistance operates as an automatic assignment to AHCA of third-party benefits. Section 409.910(ll)(f) sets forth the rule governing the distribution of amounts recovered by or on behalf of a Medicaid recipient from a third party in any tort action “which results in a judgment, award, or settlement.” The statute provides that “[ajfter attorney’s fees and taxable costs ..., one-half of the remaining recovery shall be paid to [AHCA] up to the total amount of medical assistance provided by Medicaid,” § 409.910(ll)(f)(l), and that “[t]he remaining amount of the recovery shall be paid to the [Medicaid] recipient,” § 409.910(ll)(f)(2).

In the instant case, the tort action was settled for $3 million, and the lien asserted by AHCA was for $221,434.24. The settlement agreement contained no allocation of the amount recovered among the various elements of damages suffered by the recipient. Nor have the parties to the settlement or AHCA otherwise agreed to such an allocation. Since the lien amount— representing the undisputed cost of medical care provided by Medicaid — does not exceed fifty percent of the amount recovered in the settlement, AHCA is entitled to full satisfaction of its lien pursuant to section 409.910(ll)(f)(l). In accordance with the statute, the trial court found “that the state of Florida’s Medicaid lien is equivalent to the past medical damages portion of the partiesf] undifferentiated settlement agreement” and ordered that the appellant “pay the full amount of the Medicaid lien to the state of Florida.”

On appeal, the appellant argues — as she did before the trial court — that “the formula [in section 409.910] for determining the amount [AHCA] can recover on its lien from a plaintiffs tort judgment or settlement ... has been tempered by” the decision in Arkansas Department of Health & Human Services v. Ahlborn, 547 U.S. 268, 126 S.Ct. 1752, 164 L.Ed.2d 459 (2006), which interpreted provisions of the federal Medicaid law. The appellant contends that Ahlbom supports her claim that because the value of the medical malpractice case — as asserted in expert testimony presented by the appellant — was $30 million and the $3 million settlement constituted a recovery of only one-tenth of the actual damages suffered by the Medicaid recipient, AHCA was entitled to recover only one-tenth of its Medicaid lien. We conclude, however, that the position urged by the appellant is based on an untenable reading of Ahlbom.

In Ahlbom, the Supreme Court considered whether the Arkansas Medicaid statute, under which the state asserted — with respect to the proceeds of a tort settlement — an unqualified “right to recover the entirety of the costs it paid on the Medicaid recipient’s behalf,” violated the third-party liability provisions of the federal Medicaid law. Id. at 278, 126 S.Ct. 1752. The parties in Ahlbom stipulated that the entire tort claim was reasonably valued at $3,040,708.12, although the case had been settled for a total of $550,000 — approximately one-sixth the value of the claim. Furthermore, the state “stipulated that only $35,581.47 of that [settlement] sum represented] compensation for medical expenses,” although it asserted a lien for $215,645.30. Id. at 280, 126 S.Ct. 1752. The state thus agreed that the portion of the settlement attributable to medical expenses was roughly equivalent to one-sixth of the lien amount. The state utilized a formula under which the portion of the settlement attributable to medical expenses was roughly based on the ratio of the amount recovered in the settlement to the amount of the full value of the case.

The Court rejected the state’s argument that it was entitled to obtain satisfaction of its lien “out of [settlement] proceeds meant to compensate the recipient for damages distinct from medical costs — like pain and suffering, lost wages, and loss of future earnings.” Id. at 272, 126 S.Ct. 1752. In brief, the court reasoned that the federal statutory provisions regarding the forced assignment of third-party benefits “require an assignment of no more than the right to recover that portion of a settlement that represents payments for medical care,” id. at 282, 126 S.Ct. 1752, and that the “anti-lien provision” of federal law “precludes attachment or encumbrance of the remainder of the settlement,” id. at 284, 126 S.Ct. 1752. The court thus rejected the “rule of absolute priority,” id. at 288, 126 S.Ct. 1752, embodied in the Arkansas Medicaid lien provision and held that the federal Medicaid law did not authorize the state “to assert a lien on Ahlborn’s settlement in an amount exceeding $35,581.47, and the federal anti-lien provision affirmatively prohibited] it from doing so,” id. at 292, 126 S.Ct. 1752.

Central to the Ahlbom court’s reasoning was the state’s stipulation concerning the portion of the settlement attributable to medical expenses. On the basis of that stipulation, the court reached its conclusion that the state’s lien claim exceeded “that portion of a settlement that represented] payments for medical care.” Id. at 282, 126 S.Ct. 1752. In the instant ease, there is no such stipulation and no similar basis for determining an allocation of the settlement proceeds. Contrary to appellant’s suggestion, the Ahlbom decision does not establish as a rule of law the formula utilized by the state of Arkansas to determine the portion of the settlement attributable to medical expenses. That formula simply was part of the facts presented to the court. See Smith v. Agency for Health Care Admin., 24 So.3d 590, 591 (Fla. 5th DCA 2009) (“[T]he [C]ourt in Ahlbom simply accepted the stipulation ] and in no way adopted the formula as a required or sanctioned method to determine the medical expense portion of an overall settlement amount.”); Andrews ex rel. Andrews v. Haygood, 362 N.C. 599, 669 S.E.2d 310, 313 (2008) (“The Ahlbom holding, limited by the parties’ stipulations, did not require a specific method for determining the portion of a settlement that represents the recovery of medical expenses.”).

In Florida, a Medicaid recipient entering into a settlement of a tort claim with a third party does so against the backdrop of the fifty-percent allocation rule set forth in section 409.910(ll)(f). Here, the appellant failed to establish any basis for concluding that the lien asserted by AHCA extends to a portion of the settlement “meant to compensate the recipient for damages distinct from medical costs.” Ahlbom, 547 U.S. at 272,126 S.Ct. 1752. Accordingly, Florida’s statutory allocation rule must prevail. The Ahlbom court itself acknowledged that “some [s]tates have adopted special rules and procedures for allocating tort settlements” in other contexts. Id. at 288 n. 18, 126 S.Ct. 1752. The Ahlbom court went on to state: “Although we express no view on the matter, we leave open the possibility that such rules and procedures might be employed to meet concerns about settlement manipulation.” Id.; see also Andrews, 669 S.E.2d at 314 (holding that the “one-third limitation” on lien claims under North Carolina Medicaid statute “comports with Ahlbom by providing a reasonable method for determining the State’s medical reimbursements”).

In recognizing the significance of the lack of an allocation in the settlement agreement here, we by no means suggest that an allocation in the settlement agreement — entered without the agreement of AHCA — would be dispositive. As the court acknowledged in Ahlbom, “the risk that parties to a tort suit will allocate away the State’s interest,” id. at 288, 126 S.Ct. 1752, may justify the use of “special rules and procedures,” id. at 288 n. 18, 126 S.Ct. 1752, or may require submission of “the matter to a court for decision,” id. at 288, 126 S.Ct. 1752. Such a judicial determination, however, is not necessary where the parties to a settlement agreement have not agreed on an allocation. See Andrews, 669 S.E.2d at 313 (“Ahlbom ... does not mandate a judicial determination of the portion of a settlement from which the State may be reimbursed for prior medical expenditures.”).

Affirmed.

DAVIS, J., and CANADY, CHARLES T., and ROSMAN, JAY B., Associate Judges, Concur.

      . In Smith, the court suggested "that under Ahlbom a plaintiff should be afforded an opportunity to seek the reduction of a Medicaid lien amount by demonstrating, with evidence, that the lien amount exceeds the amount recovered for medical expenses." 24 So.3d at 592. We express no view concerning whether the 50-percent statutory allocation rule could be displaced based on parole evidence showing that a lien based on that rule would extend to a portion of the settlement meant to compensate for damages other than medical expenses.


source: Caselaw Access Project

author: CASANUEVA, Chief Judge.

license: Public Domain

text:
    Eddie SEAGO, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4623.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.

      James Marion Moorman, Public Defender, and Brooke Elvington, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Chief Judge.

Eddie Seago appeals his two convictions for robbery with a firearm, asserting that the trial court erred in two instances. Each claim, one arising during voir dire and the other during the State’s direct examination of a witness, alleges that the trial court departed from its required position of neutrality thereby denying him his right to a fair trial. We conclude no error took place during the voir dire process. As to the second claim, we conclude that it is meritorious and reverse and remand for a new trial.

Because neither of the two victims could identify Mr. Seago at trial as the perpetrator, the State sought to bolster its identification evidence by calling Candace Jones as a witness. Ms. Jones was present at the crime and had been charged as a codefendant. Her case had not proceeded to trial because for two years she had been declared to be mentally incompetent. The record suggests that her testimony for the State resulted from her psychiatrist’s suggestion that Mr. Seago might testify against her. After being called by the State, the following occurred:

THE STATE: Ma’am, what happened when you got to the Island Breeze with Eddie Seago?
MS. JONES: I don’t remember all the details.
THE STATE: That’s okay. Tell me what you do remember.
MS. JONES: I don’t know.
THE COURT: Bailiff, take the jury to the jury room.
Stay there please.
(WHEREUPON, PROCEEDINGS WERE HAD OUTSIDE THE PRESENCE OF THE JURY AS FOLLOWS:)
THE BAILIFF: Your Honor, the jury is outside the hearing of the Court.
THE STATE: Judge, could we approach, briefly?
THE COURT: I don’t think that there is any need to approach.
Ms. Smith (sic), did you give a deposition in this case?
DEFENSE: Judge, I’m going to object.
THE COURT: Did you give a deposition in this case? Yes or no?
MS. JONES: Yes.
THE COURT: All right:
DEFENSE: It’s Ms. Jones. Again, I’m going to object to this, your Honor. You know, pressure from the Court I don’t think is proper.
THE COURT: I’m sorry. There is a witness that has seemed to have gotten amnesia, and I want to make sure that this is the right witness that has given a deposition.
MS. JONES: Yes. I know what I’m saying.
THE COURT: Okay. You have.
MS. JONES: I remember.
THE COURT: You have given a sworn statement under oath. I just want to make sure that I’m aware of that.
DEFENSE: I believe the State can probably impeach her with that versus — ■
THE COURT: All right.
DEFENSE: — admonished by the Court. THE COURT: I just wanted to make sure that you are the person that gave this deposition.
MS. JONES: Yes, sir. I remember. THE COURT: Okay. I’m ready for the jury to be returned.
DEFENSE: Again, I’d ask my objection be noted for the record.
THE COURT: Noted.
DEFENSE: All right.
(WHEREUPON, PROCEEDINGS RESUMED IN OPEN COURT).

Ms. Jones ultimately testified in accordance with her prior deposition which, from a strategic perspective, benefited the prosecution.

Analysis
“The requirement of judicial impartiality is at the core of our system of criminal justice.” McFadden v. State, 732 So.2d 1180, 1184 (Fla. 4th DCA 1999). In serving as neutral arbiter in the proceedings, a trial judge “must not enter the fray by giving ‘tips’ to either side.” Evans v. State, 831 So.2d 808, 811 (Fla. 4th DCA 2002) (quoting Chastine v. Broome, 629 So.2d 293, 295 (Fla. 4th DCA 1993)). This duty of neutrality is especially important when the trial judge is in the presence of a jury, but this court has recognized that a trial court can commit error — even fundamental error — outside the presence of the jury by taking actions that obviously favor one side or the other. See Williams v. State, 901 So.2d 357, 359 n. 3 (Fla. 2d DCA 2005); see also Lyles v. State, 742 So.2d 842, 843 (Fla. 2d DCA 1999) (holding trial judge in a probation revocation hearing committed fundamental error where he “gave the appearance of partiality by taking sua sponte actions which benefitted the State”).

J.L.D. v. State, 4 So.3d 24, 26 (Fla. 2d DCA 2009).

Initially, we observe that the trial court’s inquiry was not sought by either the State or by the defense. The trial court, sua sponte, began the inquiry. The record demonstrates several instances where counsel sought to derail the trial court’s inquiry into hazardous, unknown territory where prejudice could occur. Unfortunately, they were unsuccessful. We examine those instances where the inquiry could have been brought to a stop without injury.

At the initial moment of departure, the State sought to approach the bench, likely to inquire of the trial court’s intent. Rather than affording the State an opportunity to inquire and, if necessary, to preserve an issue by objection, the trial court blithely concluded there was no need. Realizing the court’s intent, defense counsel quickly objected before the court could proceed with its inquiry of the witness. Instead of seeking the basis of the objection and ruling thereon, the trial court ignored counsel’s objection so that it might pursue its self-determined course.

The record clearly demonstrates numerous efforts by respective counsel to prevent the trial court from acting in a manner that could be perceived as a departure from its position of neutrality. Unfortunately, those efforts failed. We observe that had the trial court refrained, the rules of evidence would have afforded each party an opportunity to delve into Ms. Jones’s testimony. The State, having called her to testify, would have been able to use the pretrial discovery deposition to refresh her memory. Had she testified contrary to the deposition testimony, each party could have used the pretrial deposition for impeachment purposes.

By intentionally ignoring the opportunities that would have operated to brake its inquiry, the trial court was able to “make sure that this [was] the right witness that ha[d] given a deposition.” However, that duty rested with respective trial counsel, not with the trial court. The latter’s force of inquiry was an improper entry into the fray.

In those instances “ ‘[w]hen [judicial] neutrality ‘is breached, the State has the burden to prove beyond a reasonable doubt that the error did not contribute to the verdict.’ ” Williams v. State, 901 So.2d 357, 359 (Fla. 2d DCA 2005) (quoting Simmons v. State, 803 So.2d 787, 789 (Fla. 1st DCA 2001)). The primary issue in this case was identity. Although the State presented other evidence of varying value and substance, it was Ms. Jones’s testimony that tied it all together and firmly established Mr. Seago as the perpetrator. The trial court’s improper conduct suggested to the witness that her testimony should be identical to that of the pretrial deposition, in which she named Mr. Seago as the offender. Consequently, the State is unable to carry its burden, and we must reverse and remand for a new trial.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Steven HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-1578.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    Steven Howard, pro se.
   SILBERMAN, Judge.

Steven L. Howard appeals from a final order denying his motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for further proceedings because Howard is entitled to additional jail credit.

Howard was adjudicated guilty of forgery, uttering a forged instrument, and petit theft in Polk County on February 18, 2003, and was placed on probation. He violated his probation on several occasions, resulting in multiple modifications of probation. On November 14, 2005, his probation was modified to include completion of the Bridges of America Program. On June 6, 2008, Howard’s probation was revoked and he was sentenced to fifty months in prison. At that time Howard was also serving a sentence in Broward County, and the Polk County sentence was ordered to run concurrently with the Bro-ward sentence.

Howard’s motion requested jail credit for time served. The postconviction court granted him 282 days of jail credit but denied the motion as it related to two periods of incarceration for which he claims entitlement to credit.

I. TIME SERVED WHILE AWAITING PLACEMENT IN BRIDGES PROGRAM

The first time period at issue is November 14, 2005, to January 4, 2006, during which Howard was allegedly confined in jail awaiting placement in the Bridges Program. As a threshold issue, the postconviction court found that it did not have jurisdiction to award Howard jail credit because the time was served after Howard’s original sentence of probation and therefore was, the court reasoned, post-sentence credit under the jurisdiction of the Department of Corrections. However, the postconviction court did have jurisdiction to grant the credit because Howard was not awaiting transportation to the Department of Corrections. See Scott v. State, 805 So.2d 926, 927 (Fla. 2d DCA 2001) (holding that the trial court had jurisdiction to award jail credit where the defendant who violated probation spent time in county jail awaiting placement in a rehabilitative program as opposed to placement with the Department of Corrections).

Given that the circuit court had jurisdiction to decide the issue of jail credit, the next question is whether the court should have found that Howard was entitled to jail credit for this period. In finding that Howard was not entitled to credit, the court pointed to the order modifying Howard’s probation on November 14, 2005, as the end of jail time served for that particular period. The modification order shows that Howard was ordered to remain in jail until he was placed in the Bridges Program. Howard now claims that he was not placed in the Bridges Program until January 4, 2006. If Howard was serving time in jail during the period from November 14, 2005, to January 4, 2006, then he is entitled to jail credit for that time. See § 921.161(1), Fla. Stat. (2005); Scott, 805 So.2d at 927 (remanding for determination of jail credit where a defendant who violated probation spent time in county jail awaiting placement in a rehabilitative program).

II. TIME SERVED IN BROWARD COUNTY JAIL

The second time period at issue is December 20, 2007, to June 6, 2008, during which Howard served time in Broward County Jail. Howard’s Polk County and Broward County sentences were ordered to run concurrently. The postconviction court denied Howard jail credit for this second time period, reasoning that because Howard was serving time in Broward County Jail for charges stemming out of that county and a Polk County warrant was not served on him in Broward until May 5, 2008, Howard was not entitled to credit for the time served in Broward County before the Polk County warrant was served. Howard argues that he was in fact arrested on December 20, 2007, in Broward County on a Polk County warrant and that the May 5, 2008, transmission of the warrant is irrelevant.

A defendant is not entitled to out-of-county jail credit for time served on unrelated charges absent the execution of a warrant from the charging county. Gethers v. State, 838 So.2d 504, 507-08 (Fla.2003). However, when a defendant is actually arrested in the other county on charges stemming from the original county, he is entitled to jail credit for the time served in the other county. Bedford v. State, 880 So.2d 1265, 1266 (Fla. 2d DCA 2004) (concluding that Gethers does not apply where the record shows that the defendant was held in another county “not on a detainer but pursuant to his arrest for the pertinent offenses” and holding that the defendant was entitled to credit for time served in the other county); Thomas v. State, 863 So.2d 1277, 1278 (Fla. 2d DCA 2004) (stating that a defendant arrested in another county at least partially on the original county’s warrant is entitled to jail credit for the time served in the other county). Here, Broward County’s event report documenting Howard’s arrest on December 20, 2007, indicates that Howard was arrested and held without bond for violating probation on the Polk County sentence for forgery. The document also includes the Polk County case number. Because the record shows that Howard was arrested and held in Broward County for violating his Polk County probation, he is entitled to credit for the time served in Broward County Jail.

Accordingly, we reverse and remand for further proceedings to determine the amount of credit — if any — Howard accumulated while he was in jail awaiting placement in the Bridges Program and to award credit for time the postconviction court determines Howard served in Bro-ward County Jail, beginning December 20, 2007.

Reversed and remanded for further proceedings.

NORTHCUTT, J., and FULMER, CAROLYN K., Senior Judge, Concur.


author: PER CURIAM.

text:
    William Ambrose TRUDELLE, Appellant, v. STATE of Florida, Appellee.
    Nos. 2D08-1174, 2D08-1764.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    William Ambrose Trudelle, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Dawn Adams Tiffin, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

The “Order Denying Petition for Writ of Habeas Corpus and Dismissing Petition Seeking to Invoke This Court[’]s All Writs Jurisdiction” and the “Order Denying Appellant’s Sworn Renewed Motion to Disqualify” in proceeding 2D08-1174 are affirmed. See Fla. RApp. P. 9.315(a). The “Order Denying Appellant’s Sworn Renewed Motion to Disqualify” in proceeding 2D08-1764 is affirmed. See id.

NORTHCUTT, WALLACE, and LaROSE, JJ., Concur.


author: FULMER, CAROLYN K, Judge.

text:
    Tracy Gauthier FORTNER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D09-2760.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.

      Tracy Gauthier Fortner, pro se.
    Bill McCollum, Attorney General, Tallahassee and Donna S. Koch, Assistant Attorney General, Tampa, for Respondent.
   FULMER, CAROLYN K, Judge.

Tracy Gauthier Fortner, in her petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds, and we deny, without comment, the remaining ground.

Fortner was convicted after jury trial of trafficking in cocaine in violation of section 893.135(l)(b)(l)(a), Florida Statutes (2006). The trial court sentenced her to forty-five months in prison with a three-year minimum mandatory prison sentence, followed by sixty months of drug offender probation. The judgment and sentence were affirmed on direct appeal. Fortner v. State, 3 So.3d 326 (Fla. 2d DCA 2009) (table decision). In ground one of the petition, Fortner contends that counsel was ineffective in failing to file a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) on the basis that drug offender probation was not a statutorily authorized sanction for the offense of trafficking in cocaine. A claim that counsel was ineffective in failing to file a rule 3.800(b)(2) motion to correct sentencing error when the sentence imposed is not authorized by law is cognizable in a petition alleging ineffective assistance of counsel. See Agosto-Molina v. State, 933 So.2d 26, 27-28 (Fla. 2d DCA 2006).

Section 948.20, Florida Statutes (2006), authorizes drug offender probation for chronic drug abusers whose criminal conduct is a violation of sections 893.13(2)(a) or (6)(a), Florida Statutes (2006). Because Fortner was convicted of violating section 893.135(l)(b)(l)(a), Florida Statutes (2006), the trial court could not legally sentence her to drug offender probation. See, e.g., Anderson v. State, 941 So.2d 446 (Fla. 4th DCA 2006) (holding that the imposition of drug offender probation for sale of cocaine constituted an illegal sentence under rule 3.800(a)). A sentencing error that can be preserved for appeal under rale 3.800(b)(2) is an error in the sentence itself. Jackson v. State, 983 So.2d 562, 578 (Fla.2008). This encompasses any illegal sentence claim that could be raised under rule 3.800(a). Id. at 573-74.

We therefore hold that appellate counsel was ineffective for failing to file a rule 3.800(b)(2) motion to correct sentencing error on the basis that the drug offender portion of Fortner’s sentence was illegal because it was not authorized by law. Because a new appeal would be redundant in this instance, see Agosto-Moli-na, 933 So.2d at 28, we remand to the trial court with instructions that Fortner’s drug offender probation be converted to regular probation. On remand, the trial court, at a hearing with Fortner present, may add special conditions of probation related to substance abuse, provided that the special conditions comply with the requirements of Biller v. State, 618 So.2d 734 (Fla.1993). See Taylor v. State, 17 So.3d 310, 312 (Fla. 5th DCA 2009).

Petition denied in part, and granted in part.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: CASANUEVA, Chief Judge. ALTENBERND, Judge, Specially

text:
    Brian K. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5505.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    Brian K. Smith, pro se.
   CASANUEVA, Chief Judge.

Brian K. Smith appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

In his motion, Mr. Smith alleged that the method of comparative bullet lead analysis (CBLA), which had been used by an FBI analyst who testified at his murder trials in 1989 and 1990, was subsequently discredited by scientific research and abandoned by the FBI as unreliable. Mr. Smith cited the November 2007 joint-investigation by The Washington Post and CBS News’ “60 Minutes” describing research by William A. Tobin, former chief metallurgist for the FBI, and by the National Research Council of the National Academy of Sciences, which concluded that CBLA could not reliably support testimony that a bullet came from a particular box of ammunition. Mr. Smith alleged that at his trials, FBI Special Agent Donald Have-kost had offered such expert testimony as the only direct evidence linking him to the crimes where other evidence was weak and circumstantial. The Post-“60 Minutes” story reported that the FBI had discontinued use of CBLA in 2005 but did little to alert prosecutors and defense attorneys. Mr. Smith claimed that information in the Post-“60 Minutes” investigation, which was not available at the time of trial, constituted newly discovered evidence justifying consideration of his otherwise untimely rule 3.850 motion.

Newly discovered evidence is evidence that was unknown at the time of trial, could not have been discovered by the use of due diligence, and would probably produce an acquittal on retrial. Jones v. State, 709 So.2d 512, 521 (Fla.1998). Summarily denying Mr. Smith’s motion, the postconviction court did not have the benefit of our decision in Clark v. State, 995 So.2d 1112 (Fla. 2d DCA 2008). In Clark, the movant “asserted that newly discovered evidence show[ed] that a scientific theory advanced by the State at his trial [had] recently been discredited or abandoned.” Id. at 1113. This court held that the postconviction movant presented facially sufficient allegations that the new evidence was unknown at the time of trial and could not have been discovered by the use of due diligence. Id. Because his allegation that the evidence would probably produce an acquittal on retrial was not conclusively refuted by the record, we reversed the summary denial of the claim and remanded for further proceedings. Id. at 1113-14.

Clark controls here. Mr. Smith sufficiently alleged that evidence that CBLA has been discredited and abandoned was unknown at the time of his trials and could not have been discovered by the use of due diligence. The postcon-viction court did not reach Mr. Smith’s allegation that the evidence would probably produce an acquittal on retrial, nor did it consider any other issue related to Mr. Smith’s motion. We express no opinion on issues not addressed by the postconviction court and reverse and remand for further proceedings.

Reversed and remanded.

DAVIS, J., Concurs.

ALTENBERND, J., Concurs specially.

ALTENBERND, Judge, Specially

concurring.

I agree that this case is controlled by Clark v. State, 995 So.2d 1112 (Fla. 2d DCA 2008). I wrote a separate concurrence in Clark. Id. at 1114. I am still concerned that a change in scientific opinion within a relevant scientific community — a change that occurred almost twenty years after the trial in this case — may require a different postconviction analysis than the typical claim of newly discovered evidence.

In a typical postconviction claim of newly discovered evidence, the defendant alleges that certain evidence existed at the time of trial that was unknown to the defendant and his or her counsel and that it could not have been discovered with due diligence. See, e.g., Padron v. State, 769 So.2d 432, 433 (Fla. 2d DCA 2000). For example, a witness who was driving by the scene of a convenience store robbery and did not stop to identify herself at the time of trial may be a source of newly discovered evidence when defense counsel inadvertently discovers the witness several years later. See, e.g., Clugston v. State, 765 So.2d 816 (Fla. 4th DCA 2000) (setting aside the defendant’s conviction based on newly discovered evidence that an unknown eyewitness came forward years after the conviction and identified a different perpetrator as the shooter).

This case involves evidence that did not exist at the time of trial. From the file, it appears that the evidence admitted at trial was properly admitted scientific evidence and scientific expert opinion that passed muster under a Frye analysis at that time. Mr. Smith is not arguing that the FBI analyst intentionally misrepresented the facts or his opinion at the time of trial. Cf. Commonwealth v. Kretehmar, 971 A.2d 1249 (Pa.Super.Ct.2009) (holding use of CBLA evidence did not warrant postcon-viction relief where the evidence was not a misrepresentation and did not deny defendant fair and impartial trial).

Since the time of the trial, the scientific community, including scientists working for the FBI, has changed its assessment of the methods or theories underlying comparative bullet lead analysis. Although such evidence was apparently used in as many as 2500 trials throughout the United States between 1963 and 2004 according to the materials provided to us by Mr. Smith, the relevant scientific community no longer believes such evidence is reliable.

The new discovery is not exactly new evidence; it is a new circumstance under which evidence that was legally admissible at the time of trial would no longer be legally admissible today. Thus, at any new trial, there would not be a body of newly discovered evidence to present that favored Mr. Smith. Instead, it would be the same trial he had in 1989 without some or all of the testimony of the FBI analyst.

I agree that there comes a point in a case like Mr. Smith’s where the legitimacy of even a twenty-year-old criminal conviction cannot withstand a major shift in scientific thought. I am hesitant, however, to reopen cases twenty years after a conviction merely because evidence that was properly admitted would not be admitted under current evidentiary standards. It is very hard for the State to retry a case and prove that case beyond a reasonable doubt when evidence is stale by a full generation.

Intuitively, it seems to me that when a defendant is arguing that evidence properly admitted at his trial would no longer be admissible at trial due to advances in scientific knowledge or theory, the defendant should have a heavy burden to establish that the admitted evidence was critical to the conviction. This seems particularly true in the case of comparative bullet lead analysis. The shift in scientific thought that affects this case is not comparable, for example, to the recent improvements in DNA testing. DNA testing can completely exclude a convicted defendant from the group of humans who could have committed the crime. CBLA normally allowed for testimony that a bullet involved in a crime was consistent with other bullets in the possession of the defendant, but those bullets may have come from a manufacturing batch that may have contained thousands of additional comparable bullets. In other words, CBLA allowed for circumstantial evidence suggesting a connection between the defendant and the bullet involved in the crime. Thus, the recent shift in scientific thought may reduce the amount of circumstantial evidence connecting the defendant to the offense, but it should not result in any affirmative evidence exonerating the convicted defendant.

I am not completely convinced that the normal test used for newly discovered evidence, i.e. that it would probably change the result, should be the test controlling this postconviction issue. See, e.g., Jones v. State, 709 So.2d 512, 521 (Fla.1998). Especially when the change in scientific thought occurs many years after the conviction, I am inclined to believe that the defendant should be required to establish a higher degree of certainty that the change in evidence would have altered the jury’s verdict. At this point, however, I do not believe that this case is ripe to resolve these difficult issues. These issues are sufficiently complex that it might be advisable for the trial court to appoint Mr. Smith counsel to assist him on remand.

      . The postconviction court might find it useful to note that courts in other jurisdictions have explored the often complex issues involving CBLA. Also known as CABL (compositional analysis of bullet lead), CBLA has been held inadmissible as scientifically unreliable. See Ragland v. Commonwealth, 191 S.W.3d 569 (Ky.2006); Clemons v. State, 392 Md. 339, 896 A.2d 1059 (2006). Research discrediting CBLA has provided a basis for postconviction relief. See State v. Behn, 375 N.J.Super. 409, 868 A.2d 329 (2005). In other cases, courts have acknowledged the research casting doubt on the validity of the CBLA testimony presented at trial but have held that postcon-viction relief was not warranted based on the particular facts of each case. See Commonwealth v. Lykus, 451 Mass. 310, 885 N.E.2d 769 (2008); Bowling v. Commonwealth, No. 2006 SC-000034-MR, 2008 WL 4291670 (Ky.2008) (unpublished opinion); Commonwealth v. Daye, 19 Mass.L.Rptr. 674, 2005 WL 1971027 (Mass.Super.Ct.2005). These cases are cited for informational purposes only and not to circumscribe the postconviction court's further consideration of Mr. Smith's motion.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . His materials included information from websites. See, e.g., CBS News.com, Evidence of Injustice, http://www.cbsnews.com/stories/ 2007/11/16/60minutes/main3 512453 .shtml (last visited Dec. 10, 2009).

      .Rule 3.850(b)(1) does not actually extend the time for a claim of "newly discovered evidence,” although the case law frequently uses this phrase. The rule itself extends the period to file a claim based on previously unknown "facts.” In this case, the information that is new is mostly scientific opinion, which may be factual in a sense, but opinion evidence is often treated differently in the law.

      . The analyst testified that the bullet used in the crime was a "nyclad” bullet manufactured by Federal Cartridge Corporation. He identified four more unspent cartridges, apparently obtained from Mr. Smith, that also were loaded with nyclad bullets manufactured by Federal. He testified that these bullets were not a common bullet on the market at the time. I assume that this testimony would not be excluded as a result of the changes in science.

      . I recognize that the supreme court "has not recognized ‘new opinions' or 'new research studies' as newly discovered evidence.” See, e.g., Schwab v. State, 969 So.2d 318, 325 (Fla.2007); see also Farina v. State, 992 So.2d 819 (Fla.2008). The context of that holding was not the same as the context of this post-conviction case, and I am not completely convinced that either Clark or this case is in conflict with supreme court case law despite the tension that obviously exists among these cases.


author: PER CURIAM. LaROSE, Judge, Specially

text:
    Keith Daniel WHITEHEAD, M.D., Francine McCain, M.D., and Tampa Bay Women’s Healthcare Alliance, LLP, Petitioners, v. Linda SMITH and John Smith, her husband, Respondents.
    No. 2D09-3372.
    District Court of Appeal of Florida, Second District.
    Jan. 6, 2010.
    Mark Hicks, Dinah Stein and Michael S. Hirschkowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Petitioners.
    Stuart C. Markman and Kristin A. Norse of Kynes, Markman & Felman, P.A., Tampa, for Respondents.
   PER CURIAM.

Denied.

WHATLEY and WALLACE, JJ., Concur.

LaROSE, J., Concurs specially.

LaROSE, Judge, Specially

concurring.

I fully concur that the petition for writ of certiorari must be denied. I write to explain my view that the petitioners did not have an unfettered right to choose a particular arbitrator. The parties’ arbitration agreement demanded that a panel of three neutral arbitrators decide the merits of an underlying medical malpractice case.

Paragraph 5 of the arbitration agreement provides that “the parties ... shall each appoint an arbitrator and give notice of such appointment to the other. Within a reasonable time after such notices have been given the two arbitrators so selected shall select a neutral arbitrator and give notice of the selection thereof to the parties.” Paragraph 11(c), however, provides that “claims covered by this [ajgreement will be determined by a neutral panel of arbitrators.”

When the petitioners chose their arbitrator, the respondents objected. They claimed that the arbitrator was not neutral; he was an attorney whose firm represented the petitioners’ liability insurer in other matters. The respondents were concerned that the selected arbitrator could not be fair and impartial. The trial court sustained the objection and directed the petitioners to select another arbitrator. See §§ 682.03-.04, Fla. Stat. (2007).

The petitioners argue that the trial court departed from the essential requirements of the law. More specifically, they argue that the trial court modified the arbitration procedures to which the parties had agreed. They rely principally on Lee v. Marcus, 396 So.2d 208, 209-10 (Fla. 3d DCA 1981), which discusses the nature of three-person arbitration panels and concludes that party-selected arbitrators are not intended to be entirely disinterested or impartial. Apparently, the petitioners believe they are entitled to select an arbitrator who is predisposed to their position. In the abstract, their position is not unreasonable. I note that the American Arbitration Association (AAA) allows parties to an arbitration agreement to agree that a party-selected arbitrator will be non-neutral. See AAA Commercial Arbitration Rule 12(b) (2009). But, the petitioners’ position is untenable here.

Paragraph 5 allows the petitioners to select one of the three arbitrators. This is not an absolute right, especially where the trial court had legitimate concerns about actual or perceived bias of the selected arbitrator. The trial court’s decision is amply supported by paragraph 11(c) of the parties’ agreement. Disputes are to be decided by a panel of three neutral arbitrators.

Based on the language of the parties’ arbitration agreement, which is markedly different from the agreement in Lee v. Marcus, I am of the view that the petitioners have failed to show a departure from the essential requirements of the law.

      . A certiorari petitioner must establish (1) a departure from the essential requirements of the law (2) resulting in irreparable harm or material injury for the remainder of the cause (3) that cannot be corrected on postjudgment appeal. DeLoach v. Aird, 989 So.2d 652, 654 (Fla. 2d DCA 2007) (citing Parkway Bank v. Ft. Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995)). We examine prongs two and three first to determine cer-tiorari jurisdiction. Id.


text:
    J.Q., the stepfather, Appellant, v. E.B., the biological father, Appellee.
    No. 4D09-2683.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Scott J. Stadler of Scott Stadler, P.A., Coral Springs, for appellant.
    E.B., Miami, pro se.
   PER CURIAM.

This is an appeal by a stepfather from an order denying his petition for termination of the parental rights of a biological father to a little girl. The stepfather brought the petition so he could adopt the child. The biological father is in prison. Although the trial judge made a legal error in focusing on section 39.806(l)(d)l, Florida Statutes (2008), to interpret section 63.089(4), Florida Statutes (2008), we find the error to be harmless. The judge found no abandonment by the biological father on a number of grounds. The significance of the two statutes cited above is that they prescribe different time periods for computation of the portion of the child’s minority that a parent will be incarcerated. See § 63.089(4)(b)l, Fla. Stat. (2008). From the 2013 early release date, there is only an 8% difference in the computation under the two statutes, not enough to reverse the trial court’s order in light of the judge’s other findings.

Affirmed

GROSS, C.J., WARNER and LEVINE, JJ., concur.


text:
    PREMIER ATMS, INC., Appellant, v. DAISY FRESH, INC., Appellee.
    No. 4D08-4581.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.

      Norman Malinski of the Law Offices of Norman Malinski, P.A., Aventura, for appellant.
    Joseph L. Ackerman, Jr. of Buckingham, Doolittle & Burroughs, L.L.P., West Palm Beach, for appellee.
   PER CURIAM.

The plaintiff, Premier ATMs (Premier), appeals the trial court’s decision to set aside a jury verdict in its favor and enter judgment for the defendant, Daisy Fresh, Inc., in this breach of contract action involving processing services for ATM machines. The trial court concluded that Premier failed to prove its lost profits with sufficient certainty. We disagree, however, and conclude that Premier established with reasonable certainty each element of its loss and presented damage proof based on established data, rather than on speculation or conjecture. See Massey-Ferguson, Inc. v. Santa Rosa Tractor Co., 415 So.2d 865 (Fla. 1st DCA 1982) (noting that if profits can be established with reasonable certainty, they will be allowed); Jerrico, Inc. v. Washington Nat’l Ins. Co., 400 So.2d 1316, 1318 (Fla. 5th DCA 1981) (finding that damages need not be calculated with absolute exactness so long as they are based on a reasonable method of computation).

Here, in support of its claim, Premier presented evidence of its average interchange fees earned during its months of operation, along with its overhead and operating costs, and testimony as to Premier’s reasonably anticipated profits from projected earnings for the months remaining in the contract. Premier’s damages were calculated on a reasonable basis of computation, and the evidence was sufficient to support the jury’s award of loss of future profits.

Accordingly, we reverse and remand with directions to enter judgment for Premier in accordance with the jury’s verdict.

Reversed and Remanded.

FARMER and TAYLOR, JJ., and LEVENSON, JEFFREY R., Associate Judge, concur.


author: STEVENSON, J.

text:
    Caleb Lee MILEY, Appellant, v. DEPARTMENT OF REVENUE o/b/o Amanda Lyn BARKER, Appellee.
    No. 4D09-13.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Caleb Lee Miley, Lake Worth, pro se.
    Bill McCollum, Attorney General, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for appellee.
   STEVENSON, J.

Caleb Lee Miley, the father, appeals a Final Administrative Support Order entered against him following an administrative proceeding by the Florida Department of Revenue, Child Support Enforcement Program. The basis of Miley’s challenge on appeal is that, subsequent to the time the proposed order was mailed on October 21, 2008, and prior to the issuance of the final order on December 24, 2008, he lost his job and his ability to make the prescribed payments. Miley did not request a hearing prior to issuance of the final order. Because the award in the final order is supported by competent, substantial evidence, we affirm. See § 120.68(10), Fla. Stat. (2008). Our affirmance is without prejudice to permit Miley to request a modification of the final order subject to the requirements established in Florida Statutes Chapters 61 and 409. See § 409.2563(12), Fla. Stat.; Macias v. Dep’t of Revenue ex rel. Garcia, 16 So.3d 985, 986 (Fla. 3d DCA 2009) (noting that Macias could not seek modification of a final administrative support order on appeal “by presenting facts that were not initially presented to the administrative law judge”). Alternatively, Miley may seek a superseding order from the circuit court. See § 409.2563(10)(c), Fla. Stat.

Affirmed.

TAYLOR and MAY, JJ., concur.


text:
    Daniel M. PORUSH, Appellant, v. Nancy PORUSH, Appellee.
    No. 4D09-949.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.

      Robin Bresky, Boca Raton, for appellant.
    Nancy Porush, Woodbury, New York, pro se.
   STEVENSON, J.

Daniel Porush, the former husband, appeals a non-final order, authorizing the suspension of his driver’s license and motor vehicle registration for failure to pay child support. We reverse and remand for the trial court to amend its contempt order to include a purge amount and a finding of the former husband’s present ability to pay it.

The clerk of the lower court, per the request of the former wife, notified the former husband of a $368,022.75 delinquency in his child support payments. In response, the former husband filed a verified motion to contest the delinquency. At the hearing on this matter, the former husband, in pertinent part, testified that he had made child support payments of $50,000 and $104,450 that had not been recorded in the clerk’s ledger. The trial court, adopting the magistrate’s findings, entered an order, in pertinent part, directing the clerk to reduce the delinquency by $154,450, but also finding the former husband delinquent and directing the clerk to process the suspension of his driver’s license and motor vehicle registration.

Florida Family Law Rule of Procedure 12.615 governs civil contempt proceedings in support matters related to family law cases and limits the use of civil contempt sanctions under the rule to those used to compel compliance with a court order and those used to compensate a movant for losses sustained as a result of a contem-nor’s willful failure to comply with a court order. Revocation of a delinquent child support obligor’s driver’s license and motor vehicle registration is a possible sanction to obtain compliance. § 61.13016, Fla. Stat. (2008). “If the court orders incarceration, a coercive fine, or any other coercive sanction for failure to comply with a prior support order, the court shall set conditions for purge of the contempt, based on the contemnor’s present ability to comply.” Fla. Fam. L.R.P. 12.615(e) (emphasis added). See also Larsen v. Larsen, 901 So.2d 327, 329 (Fla. 4th DCA 2005) (“[T]he sanction of driver’s license suspension must be considered a contempt sanction ... for which the court must find a present ability to pay any purge amount set.”).

In the instant case, the trial court erred in neglecting to include a purge provision in its contempt order that authorized the immediate revocation of the former husband’s driver’s license and motor vehicle registration. Prior to setting a purge provision, the trial court will need to determine the former husband’s present ability to pay such an amount. This finding should be included in the order. As to the other issues raised on appeal and not withdrawn, we affirm without discussion.

Affirmed in part, reversed in part, and remanded.

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


text:
    Julien GARCON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-933.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Julien Garcon, Salters, S.C., pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Julien Garcon (“Defendant”) appeals an order of the lower tribunal, summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and his several amendments and supplements to it. We reverse and remand only as to his nineteenth ground for relief and otherwise affirm.

On different dates in 1993, pursuant to different negotiated written agreements, Defendant pleaded guilty in L.T. case no. 92-10706 (the first case), and in L.T. case no. 92-11478 (the second case), and was sentenced to eight years for each, concurrently. There was no direct appeal as to either case.

On October 15, 2007, Defendant filed the instant rule 3.850 motion with respect to both L.T. case numbers, which he supplemented and amended numerous times, adding numerous grounds for relief before the trial court ultimately ruled, denying all the grounds as untimely and successive to the prior two motions Defendant filed in 1996, one in each case (both of which were denied as untimely, except for reducing an illegal sentence of eight years in the second case to the five-year statutory maximum for a third degree felony).

We agree that any legally sufficient grounds stated in the motion and its supplements and amendments were untimely, except for one ground. This court issued an order to show cause concerning Defendant’s fourth supplement and amendment, which he filed on June 10, 2008, adding a nineteenth ground for relief. In this ground, he claimed that both counsel and the trial court failed to inform him of the possible deportation consequences of his plea; he did not learn until May 28, 2008, that the two challenged cases would be used against him in deportation proceedings after he serves his federal sentence. Had he known, he would not have entered the plea, but would have insisted on proceeding to trial. He raised this ground within two years of discovering it, and claimed he could not have raised it within the normal two-year time period for filing a rule 3.850 motion.

In arguing that this ground was timely, Defendant relied on Peart v. State, 756 So.2d 42, 46 (Fla.2000) (determining that the two-year limitation period for raising a claim of failure to advise of deportation consequences of a plea does not begin to run until the defendant knows or should know of the threat of deportation, because that is when the defendant first could articulate a prima facie case), receded from, in State v. Green, 944 So.2d 208 (Fla.2006).

In Green, the supreme court held that a claim regarding a violation of Florida Rule of Criminal Procedure 3.172(c)(8) — which requires the court to determine in plea colloquy whether the defendant understands deportation consequences — must be raised within two years of the conviction and sentence becoming final unless the defendant can prove that the deportation consequences “could not have been ascertained during the two-year period with the exercise of due diligence.” 944 So.2d at 218. The court held that “[i]t will not be enough to allege that the defendant learned of the possibility of deportation only upon the commencement of deportation proceedings after the two-year limitations period has expired.” Id. This due diligence requirement “compels the defendant to allege and prove that affirmative steps were taken in an attempt to discover the effect of the plea on his or her residency status.” Id.

However, the court in Green gave those whose cases were already final two years from the date of the opinion in which to raise their claims. Green issued on October 26, 2006, so Defendant had until October 26, 2008, in which to file a claim that would have been timely under Peart. He raised ground nineteen on June 10, 2008.

In its response, the state concedes that this ground was timely pursuant to Green; however, it argues that the summary denial was proper because the claim was conclusively refuted by the record, pointing only to the waiver of rights form which Defendant executed in connection with his second case. The summary record includes his 'written plea agreement with respect to each case; the one he executed in connection with the second case contains his understanding “that if I am not a United States citizen, and am in the country pursuant to a Visa or Green Card, that I may be subject to deportation by the United States Government because of this plea and that this Court has no jurisdiction in such matters.”

However, the summary record does not include a transcript of the plea colloquy, and it is well established that the written plea agreement alone does not suffice to refute such a claim. “Neither the signing of the waiver form, nor the reading of the written plea agreement to the defendant by his trial counsel, can alone satisfy the rule’s requirement that the trial judge actually ascertain in open court that defendant understands the possible consequences of a conviction on his resident alien status.” Perriello v. State, 684 So.2d 258, 260 (Fla. 4th DCA 1996). The court cannot rely on a preprinted form without confirming that the defendant has read and understood it. See Hen Lin Lu v. State, 683 So.2d 1110 (Fla. 4th DCA 1996).

Because the record does not conclusively refute Defendant’s nineteenth ground for relief, we reverse the summary denial of that ground and remand for further proceedings. In all other respects, we affirm.

Affirmed in part, Reversed in part, and Remanded.

FARMER, TAYLOR and HAZOURI, JJ., concur.

      . In his reply, Defendant argues that the claim is not conclusively refuted by attaching the waiver of rights form from a different case, L.T. case no. 92-11487. Based on the other material consistent with Defendant’s case found on the waiver form and the negotiated plea agreement, which contains the same L.T. case number, and Defendant's signature appearing on both, it appears that the case number referenced on the waiver is a scrivener's error in which the last two digits of the second case number were transposed.


author: DAMOORGIAN, J.

text:
    Kahli UBILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4765.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.

      Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   DAMOORGIAN, J.

The appellant, Kahli Ubiles, timely appeals the revocation of his probation and accompanying sentence. Ubiles was charged with seven counts of violating the terms of his probation. He challenges four of those counts, to wit: (1) possession of marijuana less than twenty grams; (2) and (3) possession of a concealed firearm by a felon; and (7) possessing a firearm. We reverse only the counts relating to possession of firearms and remand for further proceedings.

The charges arose from a traffic stop. Three officers testified at the violation of probation hearing. Two of the officers testified that they pulled Ubiles’s vehicle over for running a stop sign and for driving with excessively-tinted windows. The third officer arrived as backup. The vehicle’s windows were rolled up and, due to the dark tint on the windows, the officers could not see inside prior to the stop.

After stopping the vehicle, one of the officers approached the passenger’s side of the vehicle, while the other officer approached the driver’s side. While in the vehicle, Ubiles was observed to be leaning forward, looking over his left shoulder, and moving his arms to his right. When he exited the vehicle and walked back toward the officers, he appeared to be extremely nervous. In response to the approaching officer’s request, he produced his license, but said that his insurance and registration were in the vehicle’s glove box. He gave the officer permission to get his insurance card and registration from the glove box, which was locked.

Meanwhile, the officer approaching the passenger’s side of the vehicle realized that there was someone else inside the vehicle. The passenger was ordered to exit the vehicle and was searched. The officers noticed a strong odor of marijuana in the vehicle. They also observed a smoldering hand-rolled marijuana cigarette inside the passenger’s side door handle and burnt marijuana cigarettes in an open ashtray, which was accessible to the driver and the passenger. The marijuana cigarette found in the passenger side door handle was not visible to Ubiles. In addition, the officers found no drugs on Ubiles’s person. A duffle bag, found in the trunk of the vehicle, smelled like marijuana and contained leafy green substances with seeds and stems.

The passenger had possession of a clip of bullets, $1200, and the car keys, which were used to open the glove box. Both the ignition key and the glove box key were on the same key ring. A search of the glove box revealed, in addition to the insurance card and vehicle registration, two firearms. Ubiles’s fingerprints were not found on either firearm. According to his registration, Ubiles had purchased the vehicle two weeks before the traffic stop.

The passenger testified that his brother had borrowed Ubiles’s vehicle sometime before the traffic stop. On his way to return the vehicle to Ubiles, the passenger stopped at his girlfriend’s house, rolled two marijuana cigarettes, and smoked one. Upon arriving at Ubiles’s home, he extinguished the cigarette in the center ashtray.

The passenger further testified that had $1200 in his pocket to buy Christmas gifts and that he lit another marijuana cigarette while he was in the car with Ubiles and put out the cigarette in the ashtray on the passenger’s side door. He also testified that Ubiles did not know about the duffle bag in the trunk or the ammunition clip.

The passenger told the officers that the guns must belong to his brother, who had borrowed the car earlier that day. The passenger’s brother corroborated this testimony, confirming that he owned two guns, which he left in Ubiles’s vehicle when he borrowed it. The brother planned to return to the gun range later in the day but fell asleep.

Ubiles contests the trial court’s ruling that he constructively possessed the marijuana and firearms in his vehicle. On this basis, he challenges the revocation of his probation.

“To revoke probation, the conscience of the court must be satisfied that the State proved by a greater weight of the evidence that, under the totality of the circumstances, the probationer deliberately, willfully, and substantially violated a condition of his or her probation.” Shep ard v. State, 939 So.2d 311, 313 (Fla. 4th DCA 2006). “An appellate court reviews a trial court decision on violations of probation under an abuse of discretion standard.” Kaduk v. State, 959 So.2d 817, 819 (Fla. 4th DCA 2007).

Because the marijuana and firearms were not found on Ubiles’s person or in his exclusive possession, this is a case of constructive possession. Thus, the following standard applies:

In order to establish constructive possession, the State must prove that the defendant had knowledge of the presence of the [contraband] and the ability to exercise dominion and control over the same. When a vehicle is jointly occupied, a defendant’s mere proximity to contraband is insufficient to establish constructive possession. Knowledge of and ability to control the contraband cannot be inferred solely from the defendant’s proximity to the contraband in a jointly-occupied vehicle; rather, the State must present independent proof of the defendant’s knowledge and ability to control the contraband.

Martoral v. State, 946 So.2d 1240, 1242-43 (Fla. 4th DCA 2007) (citations omitted).

The testimony adduced at the violation of probation hearing leads us to the inescapable conclusion that Ubiles had knowledge of the marijuana in his vehicle because it was in plain view. We need look no further than the passenger’s testimony that he was smoking one of the marijuana cigarettes while Ubiles was driving, or the police officers’ testimony that there were burnt marijuana cigarettes in the open center ashtray, which was plainly visible from the driver’s seat. Thus, the State proved the knowledge element of constructive possession. See id. at 1243 (noting that the driver’s knowledge of marijuana in the vehicle could be inferred from evidence that the marijuana was in his line of sight); see also Duncan v. State, 986 So.2d 653, 655 (Fla. 4th DCA 2008); Jiles v. State, 984 So.2d 622, 623 (Fla. 2d DCA 2008).

Moreover, because Ubiles owned and was driving the vehicle, and the marijuana was in plain view, it can also be inferred that he had dominion and control of the marijuana cigarettes in the ashtray. See Brown v. State, 428 So.2d 250, 252 (Fla.1983) (holding that, where drugs are found in the plain view of the owner or resident occupant of the home, dominion and control may be inferred). Compare Martoral, 946 So.2d at 1243 (suggesting that it may be inferred that a person who owns or regularly drives a vehicle has dominion and control of contraband in plain view), with Hively v. State, 336 So.2d 127, 129 (Fla. 4th DCA 1976) (evidence was not sufficient to present a jury question on constructive possession of drugs where the vehicle did not belong to the defendant and other individuals had been seen in the vehicle shortly before the defendant drove it).

Accordingly, the trial court did not abuse its discretion by determining that the State proved, by the greater weight of the evidence, that Ubiles possessed marijuana in violation of the terms of his probation.

Unlike the marijuana, however, the firearms were not in plain view. They were in a locked glove box on the passenger’s side of the vehicle. The State did not produce any direct evidence that Ubiles had knowledge of the firearms, and the defense produced evidence that they belonged to the passenger’s brother. Nevertheless, the State argues that it proved knowledge of the firearms because Ubiles was seen possibly moving his arms toward the glove box when the police officers approached his vehicle and the key to the glove box was on the same key ring as the ignition key. We do not find this evidence sufficient to establish Ubiles’s knowledge by a greater weight of the evidence.

Brown v. State, 8 So.3d 1187 (Fla. 4th DCA 2009), is instructive on this issue. In Brown, police found a black jewelry box containing Xanax in a vehicle’s center console. Id. at 1188. The defendant was the driver of the vehicle and had a passenger. Id. As one officer approached the vehicle, he saw the defendant close the center console. Id. We held that the trial court should have granted the defendant’s motion for judgment of acquittal on the charge of possession of Xanax because there was insufficient evidence that the defendant knew there was Xanax in the center console or had the ability to control the Xanax. Id. at 1189.

Likewise, in this case Ubiles’s movement in the car is not sufficient to prove that he knew about the guns in the glove compartment. In fact, the evidence in this case is less compelling than the evidence in Brown because the officer testified only to seeing Ubiles possibly moving his arms to the right, in the direction of the glove compartment. The officer could not testify that Ubiles was doing anything with his hands. And, although Ubiles at one point controlled the key to the glove box, the passenger controlled the key for a short time after Ubiles exited the vehicle.

Without sufficient evidence of knowledge, the State did not prove that Ubiles had constructive possession of the firearms. Accordingly, the trial court abused its discretion in ruling that Ubiles violated his probation by possessing those firearms. We thus reverse the counts that are based on possession of firearms. We also reverse the revocation of Ubiles’s probation and remand for further proceedings because the record does not make clear whether the trial court would have revoked his probation and imposed the same sentence based on the remaining probation violations. See Costanz v. State, 740 So.2d 71, 72 (Fla. 4th DCA 1999).

Affirmed in Part, Reversed in Part, and Remanded.

HAZOURI and CIKLIN, JJ, concur.


author: SCHWARTZ, Senior Judge.

text:
    The STATE of Florida, Appellant, v. Valerie MALLOY, Appellee.
    No. 3D09-98.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2010.
    Bill McCollum, Attorney General, and Natalia Costea, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before WELLS and SHEPHERD, JJ, and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The appellee’s only defense to a clearly unjustified court-offered plea bargain to a downward departure sentence, the alleged existence of a state offer, is itself completely without merit. This is so because the offer, which was tendered prior to a hearing on the defendant’s dispositive motion to suppress, was clearly and effectively withdrawn after that motion was denied. See State v. Berry, 976 So.2d 645 (Fla. 3d DCA 2008); State v. Watson, 971 So.2d 946, 947 (Fla. 3d DCA 2007). Hence, the departure sentence is vacated and the cause is remanded with directions to enter a guideline sentence or to permit the defendant to withdraw her plea. See State v. Smith, 23 So.3d 229 (Fla. 3d DCA 2009); State v. Armenteros, 19 So.3d 432 (Fla. 3d DCA 2009).

Reversed and remanded.

      . MS. BEIGEL [defense attorney]: At this point, I would just like to put on the record that my client said that she would like to counteroffer with credit time served at this point. I know that was the offer before the motion. I’m hoping that just because we did the motion doesn’t mean that the State is going to pull their offer.
      THE COURT: No.
      MR. AROCA [state attorney]: The State is not — the State announced yesterday that we are going to litigate this case.
      THE COURT: I’m not going to punish her for litigating the motion to suppress. If she wants to close it out credit time served, I will still offer it from the bench.
      MS. BEIGEL: Judge, she would like to accept.
      THE COURT: Okay. MR. AROCA: Your Honor, we ask you to reconsider. There is the bottom of the guidelines, there is no reason for the Court to mitigate the sentence to go below the guidelines. There is no reason whatsoever and Your Honor, we can’t go like that.
      THE COURT: I know.
      MR. AROCA: We can’t go like that. We explained yesterday and there is a reason and certainly it's over the State’s objection.
      THE COURT: Are you going to make any offer at all, Mr. Aroca?
      MR. AROCA: Well, if they counteroffer our official offer — if they offer something, we will listen. We are open to listen.
      THE COURT: Mr. Aroca, I understand how—
      MR. AROCA: We are not going to offer anything.


author: COPE, J.

text:
    WORLD FUEL SERVICES CORPORATION, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 3D09-1518.
    District Court of Appeal of Florida, Third District.
    Jan. 6, 2010.
    Fowler White Boggs and William D. Townsend and Rex D. Ware, Tallahassee; Morrison & Foerster and Paul H. Frankel and Michael A. Pearl, New York, for appellant.
    Bill McCollum, Attorney General, and Charles Catanzaro, Assistant Attorney General, for appellee.
    Before COPE, CORTINAS and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of a summary judgment in which the trial court ruled that paragraph 220.13(l)(b), Florida Statutes (2000), is constitutional. The trial court rejected the claim of World Fuel Services Corporation (“World Fuel”) that Florida’s subtraction of foreign dividends from World Fuel’s corporate income discriminated against foreign commerce.

This controversy stems from an assessment by the Florida Department of Revenue of tax deficiencies against World Fuel for the tax years ending March 31, 2001, March 31, 2002, and December 31, 2002. After exhausting administrative remedies within the Department, World Fuel filed its complaint challenging the assessment. World Fuel alleged that Florida’s tax treatment of dividends paid by foreign corporations discriminates against foreign commerce. See Kraft Gen. Foods, Inc. v. Iowa Dept. of Revenue and Fin., 505 U.S. 71, 112 S.Ct. 2365, 120 L.Ed.2d 59 (1992). To make a long story short, Florida’s corporate income tax does not tax dividends paid to World Fuel by its foreign subsidiaries. We agree with the First and Fourth District Courts of Appeal that there is no unconstitutional discrimination against foreign commerce. See Colgate-Palmolive Co. v. Florida Dept. of Revenue, 988 So.2d 1212 (Fla. 1st DCA 2008); Bernard Egan & Co. v. State Dept. of Revenue, 769 So.2d 1060 (Fla. 4th DCA 2000); see also Heftler Constr. Co. v. Florida Dept. of Revenue, 438 So.2d 139 (Fla. 3d DCA 1983).

We also agree with the Department that World Fuel’s argument is in conflict with the United States Supreme Court’s decision in Kraft. There, the Court found that Iowa’s corporate income tax statute discriminated against foreign commerce. 505 U.S. at 81, 112 S.Ct. 2365. The Court contrasted Iowa’s statute with those of other states and said that Iowa “could enjoy substantially the same administrative benefits by utilizing the federal definition of taxable income, while making adjustments that avoid the discriminatory treatment of foreign subsidiary dividends. Many other States have adopted this approach.” Id. & n. 24, 112 S.Ct. 2365. In support of this reference to “many other States” who avoid discriminatory treatment, footnote 24 cited the appendix to Kraft’s petition for writ of certiorari. The relevant portion of the appendix is in the record of the present case. Under the heading “States that Exclude All Dividends,” the appendix lists fifteen states, and their corporate income tax statutes. This listing includes Florida and cites section 220.13, Florida Statutes (1991), which is the provision of Florida’s corporate income tax at issue here. We conclude that the Florida statute is consistent with Kraft.

Affirmed.


author: Buchanan, Laurie E., Associate Judge.

text:
    EVERGREEN LAKES HOA, INC., Appellant, v. LLOYD’S UNDERWRITERS AT LONDON, a/k/a Underwriter’s at Lloyd’s, London, Appellee.
    No. 4D16-2657
    District Court of Appeal of Florida, Fourth District.
    [October 18, 2017]
    Nancy A. Lauten and George A. Vaka of Vaka Law Group, P.L., and Kelly L. Kub-iak of Merlin Law Group, Tampa, for appellant.
    Patrick E. Betar, William S. Berk and Melissa M. Sims of Berk, Merchant & Sims, PLC, Coral Gables, for appellee, .
   Buchanan, Laurie E., Associate Judge.

Evergreen Lakes HOA, Inc. (“Evergreen”) appeals the trial court’s..entry of final summary-, judgment, in fayor of Lloyd’s Underwriters at London a/k/a Underwriter’s at Lloyd’s London. (“Underwriters”) in Evergreen’s bad faith lawsuit against Underwriters. The trial court found that Evergreen did not timely send Underwriters a Civil Remedies Notice (“CRN”) as required by .section 624.155(3), Florida Statutes (2006) and,, therefore, could not maintain its bad faith cause of action. Because the record undisputedly establishes that Underwriters received Evergreen’s CRN nearly four years before Evergreen filed its bad faith suit and responded to the CRN without challenging its service, we reverse and remand.

This case stems from an insurance claim made by Evergreen after its property sustained damage in 2005’s Hurricane Wilma. Evergreen became dissatisfied with Underwriters’ handling of its claim and drafted a CRN on the' form provided by the Florida Department of Financial Services (“DFS”) in July of 2006. Evergreen mailed a copy of the CRN to DFS and claims to have also mailed a copy to Underwriters at its address as identified in DFS’s insurer database. DFS accepted the CRN as of August 15, 2006 and sent out a notice providing that “the sixty (60) day time period required by Florida Statutes 624.155(3)(a) began to run as of the date of acceptance.” Underwriters replied to the CRN before the sixty day time period lapsed and in its response, challenged the sufficiency of the CRN. Underwriters did not, however, raise any issues with the service of the CRN or otherwise challenge the DFS acceptance date of August 15, 2006.

Nearly four years later, Evergreen sued Underwriters for bad faith. Evergreen’s bad faith claim was abated for several more years pending resolution of Evergreen’s underlying breach of insurance policy claim. The bad faith litigation eventually resumed in 2013 and subsequent discovery revealed that the address Evergreen sent its CRN to may not have been Underwriters’ correct address. However, it also established that, at the latest, Underwriters’ counsel was in receipt of the CRN by "October 2, 2006. Nonetheless, Underwriters moved for summary judgment, arguing that Evergreen could not prove that Underwriters received the CRN on or before the DFS acceptance date and therefore, Evergreen’s bad faith claim was precluded. The court agreed with Underwriters and entered summary judgment in its favor. We review the court’s entry of summary judgment de novo. Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

Prior to 1982, an insured in Florida had no common law cause of action for bad faith against its insurer and was instead confined to breach of contract" damages. Talat Enters., Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1281 (Fla. 2000). This changed upon the Legislature’s adoption of section.624.155, the civil remedy statute of the Florida Insurance Code. Id. Now, an insured may, among other reasons, sue its insurer for “not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.” § 624.155(l)(b)l., Fla. Stat. (2006).

As a condition precedent to an insured filing such a suit, however, “the department and the authorized insurer must have been given 60 days’ written notice of the violation.” § 624.155(3)(a), Fla. Stat. (2006). Because there was no first-party common law cause of action for bad faith before the enactment of section 624.155, the Florida Supreme Court has instructed that this notice condition “must be strictly construed.” Talat, 753 So.2d at 1283. To that end, the statute provides that the notice must “be on a form provided by the department” and must specify the following:

1. The statutory provision, including the specific language of the statute, which the authorized insurer allegedly violated.
2. The facts and circumstances giving rise to the violation.
3. The name of any individual involved in the violation.
4. Reference to specific policy language that is relevant to the violation, if any. If the person bringing the civil action is a third party claimant, she or he shall not be required to reference the specific policy language if the authorized insurer has not provided a copy of the policy to the third party claimant pursuant to written request.
5. A statement that the notice is given in order to perfect the right to pursue the civil remedy authorized by this section.

§ 624.155(3)(b), Fla. Stat. (2006).

In 2006, the statute did not contain any guidance as to how (e.g. via email, certified mail, etc.) the insurer must be “given” the CRN. However, the statute did clarify that the CRN is meant to serve as an opportunity for the insurer to cure the alleged violation and thereby avoid civil litigation. § 624.155(3)(d), Fla. Stat, (2006) (“No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected”).

Here, there is no dispute that both DFS and Underwriters were “given” a copy of Evergreen’s CRN, which was on the form provided by DFS, more than 60 days before Evergreen filed its bad faith suit. Indeed, Underwriters had almost four years to cure the alleged violation before it was sued for bad faith. Underwriters acknowledges this fact, but argues that summary judgment was still appropriate because, due to Evergreen’s mailing error, it did not have the benefit of the full 60 day cure period as governed by the DFS acceptance date. Even if we were to construe section 624.155 as requiring that the insurer be “given” a copy of the CRN on or before the DFS acceptance date, Underwriters waived compliance with any such requirement by responding to the CRN within 60 days of the DFS acceptance date without challenging its timely receipt of the CRN. See, e.g., Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla. 1991) (holding that “failure to comply with the prelitigation notice requirements of [the medical malpractice statute] may be excused by a showing of estoppel or waiver” even though “[t]he presuit notice and screening requirements of [the statute] represent more than mere technicalities”); Schumacher v. Town of Jupiter, 643 So.2d 8, 9 (Fla. 4th DCA 1994) (holding that although “strict compliance with statutory notice requirements [for amending a zoning ordinance] is mandatory and jurisdictional, a contesting landowner may waive the right, or be estopped, to assert a defect in the notice if that landowner appeared at the hearing and was able to fully and adequately present any objections to the ordinance”).

Based on the foregoing, we hold that the court erred in granting Underwriters’ motion for summary judgment based on its lack of proper notice argument. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

Warner and Levine, JJ., concur.

      . In 2009, DFS created an administrative rule requiring CRNs to be electronically submitted through DFS’ website. Fla. Admin. Code R. 69J-123.002 (2009).


author: Forst, J.

text:
    A.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D17-1016
    District Court of Appeal of Florida, Fourth District.
    [November 1, 2017]

      Alejandro Larrazabal and Juan Carlos Arias of Velasquez Dolan Arias, P.A., Plantation, for appellant.. ■.
    Edmund M. Haskins, Fort Lauderdale, for appellee.
   Forst, J.

The Secretary of the Department of Children and Family Services (DCF) entered a final order denying Appellant A.P. an exemption from a criminal disqualification from work in a position of trust under section 435.07, Florida Statutes (2016). Appellant raises three arguments on appeal. We will address two, agreeing with Appellant that (1) the Secretary abused his discretion by adopting and then apparently disregarding the Administrative Law Judge’s (ALJ) factual findings to conclude that an exemption should be denied, and (2) the Secretary failed to provide an adequate rationale for rejecting the ALJ’s legal conclusion that it was an abuse of discretion to deny an exemption. This matter is accordingly remanded to the Secretary to address these deficiencies.

Background

At the time of the request for exemption, Appellant was a sixty-four-year-old, licensed mental health counselor in Florida who had been practicing since 1991. In 1998, Appellant was in a public park when he approached an undercover police officer and asked, “[w]ould you like to go walk?” The officer acquiesced and followed Appellant into nearby bushes., Appellant subsequently exposed himself to the officer and was arrested. He pled no contest to the misdemeanor of exposure of sexual organs, which is a disqualifying offense from being able to work with children and vulnerable adults under Florida’s Level 2 employment screening standards. § 800.03, Fla. Stat. (2016); § 435.04(2)(x), Fla. Stat. (2016).

Recently, background screening was triggered because- Appellant wanted to open an intensive outpatient ■ substance abuse program.'He requested an exemption from his disqualification from DCF, explaining that he would like to “continue” to counsel children and vulnerable adults. DCF denied Appellant’s request, and he sought review through an administrative hearing pursuant to section 435.07(3)(c).

The ALJ heard testimony from several witnesses on behalf of Appellant and one witness from DCF. The ALJ made many factual findings in his recommended decision, including the following “findings” in paragraph 24:

Based on the clear and convincing evidence presented at hearing, the undersigned finds that [Appellant] is rehabilitated from his single disqualifying offense in 1998 and that he presents no danger if employed in a, position of special trust caring for. children or: vulnerable adults.

Having found that Appellant was rehabilitated and not a present danger,'the ALJ made a legal conclusion that DCF had abused its discretion by denying the exemption. The ALJ recommended, that DCF grant the exemption.

The Secretary of the DCF adopted all of the ALJ’s findings of fact in his final order, including the paragraph, quoted above. He rejected the ALJ’s legal conclusion, however, that it would be an abuse of discretion to deny the exemption. The Secretary reasoned that DCF’s own antithetical legal conclusion was “as or more reasonable than that which was.being rejected.” The Secretary’s explanation was that:

[E]ven if rehabilitation is shown, Petitioner is only eligible for an exemption, not entitled to one. I still have the discretion to deny the exemption notwithstanding the showing of rehabilitation. See J.D. [v. Fla. Dep’t of Children & Families, 114 So.3d 1127 (Fla. 1st DCA 2013)]. If reasonable persons could differ as to the appropriateness of the Departments . [sic] decision to deny Petitioner’s request for an exemption, the Department’s decision is not unreasonable and, thus, not an abuse of discretion. Based on the ALJ’s findings, I have concluded that reasonable persons could differ as to the appropriateness of a decision to deny Petitioner’s request for an exemption. Denial of Petitioner’s request for an exemption would therefore not be an abuse of discretion. It is important to note that an exemption under section 435.07, Florida Statutes, is -not limited in nature, except in the realm of child care. I conclude, based on the ALJ’s findings, that Petitioner’s request for an exemption should be denied in light of the nature of his disqualifying offense and the children (which can include infants and small children) and the vulnerable adults with whom he could be working.

This appeal followed.

Analysis

An agency’s decision to grant or deny an exemption is subject to the deferential abuse of discretion standard' of review. K.J.S. v. Dep’t of Children & Family Servs., 974 So.2d 1106, 1109 (Fla. 1st DCA 2007). “Discretion ... is abused when the ... action is arbitrary, fanciful, or unreasonable .... ” Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla. 1980) (quoting Delno v. Mkt. St. Ry. Co., 124 F.2d 965, 967 (9th Cir. 1942)).

In order to reject the ALJ’s conclusion of law, “the agency ... must make a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified.” § 120.57(1)(l), Fla. Stat. (2016); see also B.J. v. Dep’t of Children & Family Services, 983 So.2d 11, 13 (Fla. 1st DCA 2008) (recognizing that an agency is bound to honor the findings of facts presented by the ALJ unless they are not supported by competent, substantial evidence). In demonstrating eligibility for an exemption, it is the applicant who has the burden of “setting forth clear and convincing evidence of rehabilitation.” § 435.07(3)(a), Fla. Stat. “The agency head still has the discretion to deny the exemption notwithstanding the showing of rehabilitation, but he or she must articulate the rationale for doing so in order to facilitate judicial review.” J.D. v. Fla. Dep’t of Children & Families, 114 So.3d 1127, 1131 (Fla. 1st DCA 2013).

Here, the Secretary’s adoption of the ALJ’s factual findings, particularly the above-quoted paragraph 24, conflicts with, and cannot be reconciled with, his legal conclusion. As noted in the ALJ’s findings adopted by the Secretary, there was no threat of “present danger” as of the time of Appellant’s application for an exemption.

To the extent that the Secretary is intimating that “the nature of [Appellant’s] disqualifying offense” forever disqualifies like individuals from working with children and vulnerable adults, this holding is at odds with the legislature’s decision to not include indecent exposure and similar offenses in the list of offenses for which an exemption is forever prohibited. See § 435.07(4)(a)-(c), Fla. Stat.

The Secretary’s decision to, in essence, apply a blanket lifetime prohibition is similar to the “my rule of thumb” decisions that have been reversed by appellate courts in this state. See, e.g., Cromartie v. State, 70 So.3d 559, 564 (Fla. 2011) (reversing for fundamental error because the trial court refused to consider a legislatively-authorized sentencing option as a matter of general policy); Fraser v. State, 201 So.3d 847, 849-50 (Fla. 4th DCA 2016) (reversing because the trial court expressed a “general policy” that mental health could never serve as a basis for a downward departure); Little v. State, 152 So.3d 770, 772 (Fla. 5th DCA 2014) (reversing after the trial court stated: “When a jury finds a defendant guilty, I don’t downward depart.”); Barnhill v. State, 140 So.3d 1055, 1061 (Fla. 2d DCA 2014) (reversing in part because the trial court had a “general policy” of not considering a downward departure sentence in child pornography cases). “Due process demands an impartial decisionmaker regardless of whether the decision is being made by a fact-finder or a reviewing body.” Verizon Bus. Network Servs., Inc. ex. rel. MCI Commc’ns., Inc. v. Dep’t of Corr., 988 So.2d 1148, 1151 (Fla. 1st DCA 2008).

In relying upon a correlation between “the nature of [Appellant’s] disqualifying offense and the children (which can include infants and small children) and the vulnerable adults with whom he could be working,” and the reference to J.D., the Secretary’s decision indicates some confusion with respect to Appellant’s offense and/or the circumstances in J.D. As detailed above, Appellant’s offense was approaching an adult male in a park that was apparently the site of similar encounters (per the presence of the undercover officer) and displaying his private parts to this adult, with no indication that the officer was pretending to be a “vulnerable adult.” In J.D., DCF responded to a request for an exemption from an individual who had been convicted of criminal child abuse for an incident wherein she choked her own son (J.D. also had convictions for cocaine possession and DUI). J.D., 114 So.3d at 1128, 1129 n.1. The Secretary denied an exemption that would enable J.D. “to volunteer at a shelter home for mothers with young children.” Id. at 1130. By contrast, the “victim” in Appellant’s underlying offense was neither a child nor a vulnerable adult, and the 1998 incident is the only conviction or arrest in Appellant’s record.

Section 435.07(3)(a) authorizes the agency head, in articulating his or her decision to reject the ALJ’s recommendation, to consider

the circumstances surrounding the criminal incident for which an exemption is sought, the time period that has elapsed since the incident, the nature of the harm caused to the victim, and the history of the [applicant] since the incident, or any other evidence or circumstances indicating that the [applicant] will not present a danger if employment or continued employment is allowed.

§ 435.07(3)(a), Fla. Stat. There is no indication in the Secretary’s decision that he considered these factors or what specific factors or rationale he relied upon, other than “the nature” of Appellant’s underlying offense. As such, the DCF decision is not in conformity with section 120.57(1)(Z). We are, therefore, compelled to remand this matter to DCF for a decision that is consistent with this opinion.

Conclusion

The Secretary abused his discretion by adopting and then disregarding the ALJ’s findings that Appellant is rehabilitated and “presents no danger if employed in a position of special trust caring for children or vulnerable adults,” instead reaching a conclusion that appears contrary to the ALJ’s findings, with no “sufficient particularity” in its rationale for this discrepancy. J.D., 114 So.3d at 1134. DCF’s final order is reversed and remanded for a decision consistent with the ALJ’s findings. If the Secretary once again reaches a different conclusion than the ALJ and denies the exemption, the final order must articulate the specific rationale for this denial.

Reversed and Remanded.

"Damoorgian and Conner, JJ., concur.

      . It is unclear from the record as to how Appellant could "continue" to work with children and vulnerable adults following his disqualification.