text:
    A.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3200.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Carlos J. Martinez, Public Defender, and Robert F. Kohlman and Angela C. Vigil, Special Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Overton v. State, 801 So.2d 877, 899 (Fla.2001).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. PROFESSIONAL MEDICAL GROUP, INC., etc., Respondent.
    No. 3D09-390.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Lara J. Edelstein, for petitioner.
    Jose R. Iglesia, Coral Gables, and Virginia Best, for respondent.

      Before RAMIREZ, C.J., and COPE, and SALTER, JJ.
   PER CURIAM.

The issues raised in this petition for writ of certiorari are identical to those raised in United Automobile Insurance Company, v. Santa Fe Medical Center-, at alo Telmo Lopez, 21 So.3d 60 (Fla. 3d DCA 2009). On the basis of that opinion, we conclude that the court, sitting in its appellate capacity, departed from the essential requirements of law when it affirmed a summary judgment as against petitioner United Automobile Insurance Company. Therefore, we grant the petition for writ of certiorari.

Petition granted, decision quashed.


text:
    Jimmie JACOBS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-515.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Jimmie Jacobs, in proper person.
    Bill McCollum, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
   An Appeal from the Circuit Court for Miami-Dade County, David C. Miller, Judge.

Before RAMIREZ, C.J., and SUAREZ and CORTIÑAS, JJ.

Affirmed. See Major v. State, 814 So.2d 424 (Fla.2002); Gaber v. State, 684 So.2d 189 (Fla.1996).


author: SHEPHERD, J.

text:
    Martin VALERA, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, et al., Appellee.
    No. 3D09-2254.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Martin Valera, in proper person.
    Louis A. Gutierrez, Senior Attorney, Tallahassee, for appellee, Unemployment Appeals Commission.
    Before WELLS and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Martin Valera appeals a final order of the Florida Unemployment Appeals Commission, upholding the dismissal of his appeal from a referee’s determination, on the ground it was not filed within twenty days from the mailing of the determination. See § 443.151(3)(a), Fla. Stat. (2009); Fla Admin. Code Rule 60BB-5.007 (2009). Mr. Valera admits he received the determination, including notice of his appellate rights. He argues we should reverse the order under review because he was distracted by personal matters, affording him “good cause” for relief from the strict deadline provided by the statute and dismissal rule. However, the statute and rule do not permit good cause exceptions to the dismissal rule. See Robinson v. Sun Bank & Trust Co., 685 So.2d 1325, 1326 (Fla. 2d DCA 1996); Riegler v. Unemployment Appeals Comm’n, 633 So.2d 1182, 1182 (Fla. 4th DCA 1994); Leon v. Unemployment Appeals Comm’n, 476 So.2d 761, 762 (Fla. 3d DCA 1985).

For this reason, we affirm the order of the Commission.


text:
    PARKER KNOXVILLE, INC., a Florida corporation, Appellant, v. BCOM REAL ESTATE FUND, LLC, a Delaware corporation, Appellee.
    No. 3D09-2546.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Alexander Angueira, South Miami, for appellant.
    Bilzin Sumberg Baena Price & Axelrod and Michael N. Kreitzer and Jermaine A. Lee, Miami, for appellee.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   PER CURIAM.

The defendant, Parker Knoxville, Inc., appeals from a non-final order denying its motion to dismiss on forum non conveniens grounds. We affirm.

At the hearing on the motion to dismiss, Parker Knoxville did not submit any evidence to support its argument that Tennessee is a more convenient forum than Florida to litigate the lawsuit. Instead, Parker Knoxville informed the trial court that it was relying on the allegations set forth in the complaint filed by plaintiff, BCOM Real Estate Fund, LLC (“BCOM”), and the exhibits attached thereto. After hearing the parties’ arguments and reviewing the complaint and exhibits, the trial court denied the motion to dismiss.

As our review of B COM’s complaint and exhibits demonstrates that Parker Knoxville failed to demonstrate that, based on the test set forth in Kinney System, Inc. v. Continental Insurance Co., 674 So.2d 86 (Fla.1996), Tennessee is a more convenient forum to litigate the lawsuit than Florida, we affirm the order denying Parker Knoxville’s motion to dismiss on forum non conveniens grounds. Ryder Sys., Inc. v. Davis, 997 So.2d 1133, 1134-35 (Fla. 3d DCA 2008).

Affirmed.


author: COPE, J.

text:
    Excellus HYLAND, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2708.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.

      Excellus Hyland, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, CORTIÑAS and ROTHENBERG, JJ.
   COPE, J.

This is an appeal of an order denying a motion filed under Florida Rule of Criminal Procedure 3.800(a). We affirm.

Excellus Hyland’s motion was filed in Miami-Dade County case number 97-10896. He states that he is serving an eleven-year guidelines sentence, and alleges that through a scoresheet error, his guidelines maximum was erroneously calculated. He maintains that if the error is corrected, he must be resentenced to a lower sentence in order to stay within the guidelines range.

The State filed a response in the trial court saying, among other things, that Rule 3.800(a) cannot be used for this purpose. The State is incorrect. Rule 3.800(a) states in part that “[a] court may at any time correct ... an incorrect calculation made by it in a sentencing score-sheet .... ”

On the merits, however, we affirm. Defendant-appellant Hyland maintains that he was not convicted of aggravated assault in Miami-Dade County circuit court case number 96-31101, but the record before us contains an order withholding adjudication on entry of a guilty plea to the offense of aggravated assault as reduced in count two of the information. See Fla. R.Crim. P. 3.703(d)(6) (“ ‘Conviction’ means a determination of guilt resulting from plea or trial, regardless of whether adjudication was withheld or whether imposition of sentence was suspended.”).

Affirmed.


text:
    Christopher WEST, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2892.
    District Court of Appeal of Florida, Third District.
    Jan. 20, 2010.
    Christopher West, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Christopher West (“West”) appeals from the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). West seeks additional credit for time served as a result of two hundred forty-five (245) days under house arrest. Because West is not entitled to credit for time spent under house arrest — only for time spent in prison, we affirm the trial court’s order. See Perez v. State, 870 So.2d 865 (Fla. 3d DCA 2004); Fernandez v. State, 627 So.2d 1 (Fla. 3d DCA 1993).

Affirmed.


author: ALTENBERND, Judge.

text:
    STATE of Florida, Appellant, v. Zambia PELHAM, Appellee.
    No. 2D08-5557.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellant.
    John A. Shahan, Tarpon Springs, for Appellee.
   ALTENBERND, Judge.

The State appeals Zambia Pelham’s concurrent youthful offender sentences in circuit court cases CRC06-12364CFANO and CRC07-26854CFAN0. Because Mr. Pel-ham committed the offenses in case 07-26854 after his twenty-first birthday, we must reverse and remand that case for resentencing. We affirm the youthful offender sentences imposed in case 06-12364.

Mr. Pelham was born in December 1985. In February 2006, when he was twenty years old, he was arrested and charged with two counts of sale of cocaine and two counts of possession of cocaine. He was released on bond. These charges resulted in case 06-12364. He pleaded guilty to these charges in August 2007. The trial court placed him on twenty-four months of drug offender probation.

When the trial court imposed this sentence, it did not know that Mr. Pelham had committed similar offenses in May 2007, after he turned twenty-one. He had not been arrested at the time of the May offenses. The State did not file an information in case 07-26854 charging Mr. Pel-ham with the new offenses until December 2007. He was arrested in December for these new offenses and once again was released on bond.

In May 2008, Mr. Pelham violated his drug probation curfew in case 06-12364. This time he was arrested and was not released on bond in that case. However, his bond was not revoked in case 07-26854. At a hearing in October 2008, he pleaded guilty to the new substantive offenses in case 07-26854 and to violating probation in case 06-12364.

At the hearing, Mr. Pelham’s scoresheet established a lowest permissible sentence of 23.85 months’ imprisonment. His attorney requested that he be sentenced as a youthful offender. The trial court noted that although Mr. Pelham had been in jail for about 170 days, he technically was only accruing jail credit in case 06-12364. The trial court expressed a desire for an “equitable score adjustment” because jail officials “should have come off the bond on the new charges [in case 07-26854],” allowing Mr. Pelham to accrue jail credit for all of his pending cases. The trial court then agreed to sentence Mr. Pelham as a youthful offender in both cases to eighteen months in prison with credit for 172 days of time served. The State objected and argued that Mr. Pelham did not qualify for sentencing as a youthful offender in case 07-26854 because he had committed the offenses after his twenty-first birthday and he was not entitled to jail credit on the charge where bond had not technically been revoked. The trial court overruled the State’s objection. On appeal, the State argues only that the sentence could not be imposed as a youthful offender sentence. We agree.

Section 958.04, Florida Statutes (2006), permits a trial court to sentence a defendant as a youthful offender if the crime was committed before the defendant turns twenty-one years old and the defendant otherwise meets the statutory requirements. Because Mr. Pelham committed the second offenses when he was twenty-one, he did not qualify for youthful offender treatment for those offenses. Therefore, it was improper for the trial court to impose a youthful offender sentence in case 07-26854.

We understand the trial court’s desire to impose sentences under a single sentencing statute, but unfortunately the law does not give it that discretion. At this point, it appears that the sentence in case 06-12364 has been fully served and that Mr. Pelham has already been released from prison in case 07-26854. The State nevertheless still has the right to require Mr. Pelham to be resentenced in case 07-26854.

Concerning the 172 days of jail credit, we would comment that it is not unusual for a person to end up in jail accruing jail credit in one case while still technically “released” on bond in another case emanating from the same county. This is normally the result of an oversight within the criminal justice system and not a matter of intent. We frequently see cases in which a trial judge exercises discretion, often with the complete cooperation of the State, to correct this technical problem by granting additional jail credit in the case where bond was not revoked. This act of discretion does not seem inappropriate to this court, and it eliminates a common source of difficult postconviction motions. Thus, while we mandate the trial court to impose a sentence under the criminal punishment code on remand, we are not reversing the award of jail credit that the State did not challenge on appeal.

Affirmed in part; reversed in part; and remanded for further proceedings.

NORTHCUTT and KELLY, JJ., Concur.


text:
    Peter L. BRINSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3243.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    Peter L. Brinson, pro se.
   ALTENBERND, Judge.

Peter L. Brinson appeals an order denying a postconviction motion entitled “Motion to Accept Rule 3.850 as Timely Filed.” We reverse and remand for further proceedings because the order on appeal does not contain adequate attachments from the record to support the order.

Mr. Brinson was tried by jury in 2001 and convicted of four counts of possession of cocaine and four counts of sale of cocaine. He is serving concurrent thirty-year sentences as a habitual offender for the four counts of sale of cocaine. This court affirmed his direct appeal in 2003, issuing mandate on February 25, 2003. Brinson v. State, 838 So.2d 1154 (Fla. 2d DCA 2003) (table decision).

Since mandate issued in his direct appeal, Mr. Brinson has filed various post-conviction motions. In case number 2D03-5110, we reversed an order denying his first motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850, and remanded for further proceedings. Brinson v. State, 873 So.2d 505 (Fla. 2d DCA 2004). Following those proceedings, the motion was again denied and this court affirmed that denial in February 2005, issuing mandate on March 3, 2005. Brinson v. State, 896 So.2d 753 (Fla. 2d DCA 2005) (table decision).

In the motion at issue in this appeal, Mr. Brinson claims he filed yet another motion for postconviction relief on January 12, 2005. He allegedly filed two notices of inquiry about this motion before receiving a response from the clerk of court in March 2009 notifying him that the clerk had no such motion on file. Shortly after he allegedly received this notice, he filed the motion to accept his rule 3.850 motion as timely filed. That motion is in our record. It asks the trial court to “consider this accompanying Rule 3.850 motion.” No such accompanying motion is in our record.

The trial court denied the motion to accept the earlier motion as timely, describing some of the earlier proceedings. This order has no attachments and we are not certain whether the trial court had an “accompanying motion” or not. The trial court denied the motion, claiming that it would have been without jurisdiction to consider this second motion if it had been filed in January 2005 because the order denying the first motion for postconviction relief was pending on appeal at that time. This ruling is at least an overstatement. A trial court has concurrent jurisdiction during the pendency of an appeal of a postconviction order to consider a second postconviction motion that raises new issues unrelated to the issues presented in the motion that is pending on appeal. See Wheeler v. State, 918 So.2d 369 (Fla. 1st DCA 2005). We cannot tell from our record whether the motion allegedly filed in January 2005 would have properly invoked the trial court’s jurisdiction.

The trial court also denied the motion on the grounds that it would have been both untimely and successive. Mr. Brinson responded with a motion for rehearing, arguing that a motion in January 2005 would not have been untimely and that his grounds for relief involved newly discovered evidence that he received from his trial attorney shortly before he allegedly filed the motion in January 2005.

We are hampered by the fact that we have no copy of the motion allegedly filed in January 2005. We do not know whether the original or any copy exists either in the court records or Mr. Brin-son’s personal records. Based exclusively on the record before us, we must assume that Mr. Brinson mailed a timely second postconviction motion to the court in January 2005 and that the motion contained new claims based on newly discovered evidence. The order on appeal without attachments does not refute those allegations or otherwise contain a legal basis to deny the motion to accept the second motion as timely filed.

Reversed and remanded for further proceedings.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . Case Nos. 2D03-4111, 2D03-5110, 2D04-3400, 2D05-238, and 2D08-2262.


author: MORRIS, Judge.

text:
    Clement A. McDOWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3938.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    James Marion Moorman, Public Defender, and J.L. Perez, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   MORRIS, Judge.

Clement A. McDowell appeals the non-summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the trial court erred by proceeding with the evidentiary hearing without permitting McDowell an opportunity to be present at the hearing to present his testimony and to assist in cross-examination, we reverse and remand.

In ground one of his motion, McDowell contended that his plea to a violation of probation charge was involuntary because his former trial counsel misadvised him by telling him that two additional cases would be handled at the same time as the violation of probation charge and that adjudication would be withheld in all of the cases. He also alleged that once he confronted his trial counsel about the issue, his trial counsel withdrew from the case. McDowell’s second claim was that his trial counsel provided ineffective assistance by failing to raise existing issues below.

At the evidentiary hearing, McDowell’s postconviction counsel alerted the postcon-viction court that McDowell was not present due to the fact that he was in federal custody and that she had been unsuccessful in having him transported to the hearing. His postconviction counsel stated that she needed McDowell present for the hearing so that he could provide his testimony. The State agreed that if McDowell wanted to present testimony, he would need to be present at the hearing. Ultimately, however, the postconviction court proceeded with the hearing and took testimony from McDowell’s trial counsel. At the end of the hearing, McDowell’s post-conviction counsel renewed her objection to having the evidentiary hearing proceed without McDowell’s presence.

In denying McDowell’s motion, the post-conviction court addressed the issue of McDowell’s presence by concluding that “[bjecause the presence of a defendant is not always required, and the fact that [McDowell] was represented by counsel, who was able to confer with her client prior to the hearing, the Court has decided in its discretion that [McDowell’s] presence was not required in this case.” The postconviction court also concluded that McDowell’s allegations were unambiguous and that his trial counsel had a clear recollection of the case.

On appeal, McDowell argues that the postconviction court erred by refusing to permit him an opportunity to be present to testify because there were disputed factual issues about which McDowell had personal knowledge. The State concedes error on this point.

Although the postconviction court correctly stated that a defendant’s presence is not always required at a rule 3.850 evidentiary hearing, a defendant should be given an opportunity to testify where there are questions of fact within the personal knowledge of the defendant. See Harrell v. State, 458 So.2d 901, 902 (Fla. 2d DCA 1984); Eby v. State, 306 So.2d 602, 603 (Fla. 2d DCA 1975); Smith v. State, 489 So.2d 197, 198 (Fla. 1st DCA 1986). Further, by requiring the defendant’s presence in such a case, a postconviction court can ensure that the defendant will be able to assist postconviction counsel during the cross-examination of witnesses. See Harrell, 458 So.2d at 902; Eby, 306 So.2d at 603.

Here, McDowell’s trial counsel testified that while he initially discussed entering a plea in three different cases (including the violation of probation), McDowell refused to do so because it would require prison time and thus that McDowell chose to enter a plea solely to the violation of probation charge. Trial counsel also testified that while McDowell had adjudication withheld on the charge underlying the violation of probation, he [trial counsel] had no knowledge as to whether that would be maintained following the entry of McDowell’s plea to the violation charge itself.

While all of these facts may be true, such testimony contoasts with McDowell’s allegations in his rule 3.850 motion. Yet McDowell was neither permitted to present his own testimony in contradiction to trial counsel’s testimony nor was he given an opportunity to assist his postcon-viction counsel in cross-examining his trial counsel. Because there were disputed factual issues, the postconviction court’s failure to permit McDowell an opportunity to be present was an abuse of discretion.

We therefore reverse the postconviction court’s order and remand for a new evi-dentiary hearing. McDowell must be permitted an opportunity to be present at this hearing to testify and cross-examine his trial counsel concerning McDowell’s allegations that trial counsel misadvised McDowell about his plea and provided ineffective assistance by failing to raise certain issues below.

Reversed and remanded.

WHATLEY and CRENSHAW, JJ., Concur.

      . In the order setting an evidentiary hearing for ground one, the postconviction court found that this claim was facially insufficient but stated that McDowell's postconviction counsel could either waive this claim or proceed further on it at the evidentiary hearing. Because we are reversing for a new evidentia-ry hearing on the basis that McDowell was improperly prevented from being present at the original hearing, McDowell should be given the same opportunity to present this issue again at the new hearing.


text:
    Randolph C. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5718.
    District Court of Appeal of Florida, Second District.
    Jan. 20, 2010.
    Randolph C. Smith, pro se.
   MORRIS, Judge.

Randolph Smith appeals the dismissal of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

In his motion, Smith raised five claims of ineffective assistance of counsel relating to his conviction for dealing in stolen property entered after a jury trial. The post-conviction court, citing Nielson v. State, 984 So.2d 587 (Fla. 2d DCA 2008), dismissed Smith’s motion, stating “[a]s there is no trial transcript, it cannot be determined whether [his] claims have legal merit.” The postconviction court dismissed Smith’s motion without prejudice for him to refile his motion and to supplement the record with a trial transcript within sixty days.

The postconviction court incorrectly relied on Nielson in dismissing Smith’s rule 3.850 motion. Nielson addressed the lack of a sentencing transcript in a rule 3.800(a) proceeding in which the defendant alleged that his sentences were illegal because the written sentences did not reflect the oral pronouncement of concurrent sentences. Id. This court noted that rule 3.800(a) is “generally restricted to matters that can be established from the record without the need for any significant evidentiary proceedings” and that rule 3.800(a) proceedings are not intended to resolve factual disputes. 984 So.2d at 590. This court held that the defendant’s claim was not cognizable under rule 3.800(a)

without a transcript of the sentencing hearing or other indisputable evidence of record to support the claim. Instead, in the absence of a transcript, such a claim involves a factual dispute and thus must be made in a timely motion for postconviction relief pursuant to Florida Rule of Cnminal Procedure 3.850.

984 So.2d at 588-89 (emphasis added).

The application of Nielson is limited to rule 3.800(a) proceedings in which an essential transcript is absent from the record. The opinion specifically states that rule 3.850 is the proper vehicle in which to address factual disputes when an essential transcript does not exist. The language of rule 3.850 also supports the conclusion that an evidentiary hearing is appropriate when there is no record to refute a legally sufficient postconviction claim. See Fla. R.Crim. P. 3.850(d) (“If the motion, files, and records in the case conclusively show that the movant is entitled to no relief, the motion shall be denied without a hearing. In those instances when the denial is not predicated on the legal insufficiency of the motion on its face, a copy of that portion of the files and records that conclusively shows that the movant is entitled to no relief shall be attached to the order.”); see also Simon v. State, 997 So.2d 490, 492 (Fla. 4th DCA 2008) (“A defendant’s factual allegations in a rule 3.850 motion must be accepted as true to the extent they are not conclusively refuted by the record. If a claim sufficiently establishes a prima fa-cie basis for relief and is not refuted by records, the court should hold an eviden-tiary hearing to resolve any disputed factual matters.” (citations omitted)).

Accordingly, we reverse the postconviction court’s order and remand for reconsideration of Smith’s rule 3.850 motion consistent with this opinion.

WHATLEY and CRENSHAW, JJ., Concur.


author: KAHN, J.

text:
    SUBAQUEOUS SERVICES, INC., Appellant, v. Timothy CORBIN, Appellee.
    No. 1D08-6260.
    District Court of Appeal of Florida, First District.
    Jan. 21, 2010.

      John D. Kallen of Badiak, Will, & Fallen, North Miami Beach, for Appellant.

      Marian S. Lee and Rodney W. Smith of Avera & Smith, LLP, Gainesville, for Ap-pellee.
   KAHN, J.

In a personal injury case, the jury awarded damages to a commercial crabber whose boat collided with an unmarked dredge pipeline off Horseshoe Beach, Florida. Appellant, a dredging company, raises three points: the admission of prior accident evidence; the trial court’s decision to instruct the jury on the Pennsylvania Rule; and the sufficiency of the evidence to support the jury’s verdict on loss of future earning capacity, future medical expenses, and noneconomic damages. We affirm the verdict on liability and reverse in part as to damages.

BACKGROUND

Early on March 14, 2006, appellee, Timothy Corbin, and his daughter, Elizabeth Right, launched appellee’s boat from the county park at Horseshoe Beach. Corbin pulled traps in the Gulf of Mexico for a few hours before his boat entered the beach’s main channel between 11:00 a.m. and noon. Navigating the channel, appellee saw a large pipeline submerged two to eight inches below the surface of the water near marker 16. Appellee turned to Elizabeth, yelling for her to “hang on.” When the boat struck the pipe, Elizabeth hugged a pole near the transom as her father fell upon the wooden picking table behind the console. After the collision, Elizabeth saw that a black pipe lying crosswise in the channel between markers 16 and 17 had lodged between the outboard motor and the transom; she pushed the pipe back down into the water.

On the same day, David Right (Right), a grade-school friend of Corbin and himself a commercial crabber, was working the same area. Right shoved off from the park approximately the same time as ap-pellee, but headed offshore to pull traps in deeper waters. According to Right, around 11:00 a.m., his boat collided with a pipeline in the main channel next to marker 16. Before proceeding back to the park, Right radioed appellee to warn him about the pipeline. Appellee responded that he had already hit the pipe and was returning to shore.

Also on March 14, 2006, appellant, Sub-aqueous Services, Inc. (Subaqueous), was at work dredging canals in and around Horseshoe Beach. On that day, Keith Johnson was charged with swapping out a dredge, “Kenner,” for another called “Y2K.” The tug “Contender” brought the “Kenner” from the county dock to a nearby location, where cranes extracted it from the water and returned the “Y2K” in its place. To facilitate the transfer, Johnson disconnected the dredge pipe from the “Kenner” and tied it to a pylon outside the main channel. He reattached the pipe to the “Y2K” at approximately 12:00 p.m.

Corbin brought this action alleging serious back injury. After discovery, appellant moved in limine to exclude evidence of prior accidents involving other boats and the same pipeline. The Circuit Court limited the admissibility of prior similar accidents evidence to the testimony of Right, who had said his boat collided with an unmarked pipeline submerged eight inches beneath the water and laid up between markers 16 and 18.

At trial, medical evidence confirmed ap-pellee suffered from chronic pain, which prevented him from returning to his cal’eer as a crabber. Pain and discomfort attended or restricted various aspects of appellee’s daily life, from normal sleep at night to playing with his grandchildren. Dr. George Feussner, appellee’s treating neurologist, believed initially that Corbin’s future medical care could cost as much as $3,000 to $5,000 per year. After prescribing appellee various forms of treatment with little success, however, Dr. Feussner could recommend only that Corbin remain on a regular regimen of pain killers. Epidural steroid injections, IDD therapy, and even surgery, Dr. Feussner said, might be required depending on Corbin’s future physical status. Feussner did not provide a cost figure for these modalities, except an estimate for one-time surgery, $30,000.

John Roberts, qualified as an expert in the area of vocational and rehabilitation evaluations, also testified on appellee’s behalf. Roberts calculated Corbin’s earning capacity as a “commercial fisherman,” based on wage reports from Tallahassee-based employers and records from the U.S. Department of Labor, at about $12.36 per hour, or $25,790 annually. Roberts called this estimate conservative, in part because commercial fishing is a cash-based business in which tax deductions are prevalent. Roberts determined appellee was suited to perform only sedentary and light duty work after the accident, and could expect to earn between $7.00 and $9.00 per hour (or $15,080 and $18,720 yearly) in one of the occupational groups in which appel-lee would be able to function. Considering the job market in the surrounding area, however, Roberts doubted whether Corbin would find employment nearby.

Appellee’s expert economist, Joseph Perry, also offered testimony on loss of future earning capacity. Relying on Roberts’ vocational evaluation, Corbin’s tax returns between 2001 and 2006, and a life expectancy table, Perry calculated future loss of earning capacity by subtracting projected post-injury earnings from projected pre-injury earnings. Perry also built into the calculation the assumption that pre- and post-injury earnings would increase no faster than the average rate of earnings in the U.S. economy over the relevant time period. Using this approach, Perry computed the actual monetary value of appellee’s earning capacity loss at $303,896, a little over $60,000 of which accounted for past losses. Reduced to present monetary value, Perry placed the figure at $202,172.

At the charge conference, Subaqueous proposed that Corbin’s failure to observe various maritime precautions justified an instruction on the Pennsylvania Rule. This rule of admiralty law provides that the operator of a vessel who fails to observe a maritime safety regulation has the burden to prove that the violation could not have been a cause of the accident. See The Pennsylvania, 86 U.S. (19 Wall.) 125, 136, 22 L.Ed. 148 (1873) (holding “burden rests upon the ship of showing not merely that her fault might not have been one of the causes, or that it probably was not, but that it could not have been”). Appellee, in response, suggested the Pennsylvania Rule instruction be given reciprocally, in light of appellant’s alleged violation of one or more of the Inland Navigational Rules (Rules of the Road). 33 U.S.C. §§ 2001-38 (2009). Ultimately, the court resolved to inform the jury of the requirements of Rules of the Road 2, 5, 6, and 7, and concluded the instruction as follows:

If you find that either the plaintiff or the defendant violated one of these rules, it is that party’s burden to show by a greater weight of the evidence that the violation of the rule could not have been a legal cause of the damage complained of.

(emphasis added).

The jury returned a verdict in favor of appellee, awarding total damages in the amount of $1,802,302. This figure included $84,600 for future medical expenses, $303,900 for future lost earning capacity, and $1,300,000 for future pain and suffering.

Appellant filed a motion for new trial, contending the court impermissibly allowed Eight to testify concerning his accident; the court wrongfully charged the jury on the Pennsylvania Rule; and the damage awards, except for past medical expenses, were against the manifest weight of the evidence. Subject to agreed-upon modifications in damages for past lost earnings (reduced to $28,000) and loss of future earning capacity (reduced to $236,900), the court denied the motion for new trial.

ANALYSIS

A. Prior Similar Accidents Evidence

We review a trial court’s admission of prior similar accidents evidence for abuse of discretion. Stephenson v. Cobb, 763 So.2d 1195, 1196 (Fla. 4th DCA 2000). Subaqueous first challenges the admission of Eight’s testimony of another accident. On appeal, appellant asserts it did not deny the existence of the dangerous condition to which Eight’s testimony pertained, i.e., an unmarked, free-floating, submerged dredge pipe lying across the main channel. Therefore, appellant argues, the court abused its discretion in admitting evidence of Eight’s prior accident, because this testimony was not relevant to prove a material fact in dispute. Appellant’s actual litigation strategy, however, sailed on a different tack.

Evidence of a prior similar accident is admissible to show the existence of a dangerous condition. See Chambers v. Loftin, 67 So.2d 220, 222 (Fla.1953). The admissibility of such evidence is well-recognized where the defendant denies knowledge or the existence of the condition. See id. Appellant stated in its motion in limine that the issue in the case was not “a defect in the pipeline, but rather, negligence in the placement and markings of the pipeline.” At trial, Johnson disagreed with appellee’s notion that the pipeline was just under the surface of the water and floating free from the dredge — some of the very conditions that would make it dangerous. Instead, Johnson believed the pipe was tethered to a pylon when the dredges were switched. Johnson’s testimony, read in conjunction with appellant’s motion in li-mine, makes it difficult not to perceive as part of the decking of appellant’s litigation platform the outright denial of a dangerous condition. Eight’s testimony as to his allegedly similar accident was therefore materially relevant to whether Subaqueous was correct in its assertion Corbin “could [not] have hit the pipeline at the location and under the conditions ... existing at the time [he] claims the incident occurred.”

Appellant next contends that Eight’s testimony should have been ex-eluded because the significant aspects of the Eight accident differed greatly from Corbin’s. Evidence of “prior similar accidents at or near the same place are admissible if they are not too remote in time.” Loftin, 67 So.2d at 222. Here, a raft of similarities between Eight’s and Corbin’s accidents emerges as counterweight to the differences. Seemingly within minutes of each other, the vessels of the two commercial crabbers collided with a black, unmarked pipeline submerged less than a foot below the surface of the water near channel marker 16. That the pipeline may have been laid up in a slightly different position from one accident to another, as appellant now asserts, does not sink the admissibility of Eight’s testimony. See Lawrence v. Fla. East Coast Ry. Co., 346 So.2d 1012, 1015 (Fla.1977) (holding it is not necessary for similar accidents to occur at an identical place and time). Instead, the substantial parallels between the accidents — in time, general vicinity, and circumstances — -lend the probative value upon which the admissibility of similar accidents evidence depends. Eight’s facts are not beyond the arc of visibility established by Corbin’s account. Accordingly, we find the court did not abuse its discretion in admitting evidence of Eight’s prior similar accident.

B. The Pennsylvania Rule

We review a trial court’s decision to give or withhold a jury instruction for abuse of discretion. Barbour v. Brinker Fla., Inc., 801 So.2d 953, 959 (Fla. 5th DCA 2001). Over appellant’s objection, the court allowed the jury to consider the Pennsylvania Rule instruction as to each party. The Pennsylvania Rule applies where three elements exist: (1) proof by a preponderance of the evidence of a violation of a statute or regulation imposing a mandatory duty; (2) the statute or regulation involves marine safety or navigation; and (3) the injury suffered is of a nature the statute or regulation was intended to prevent. Union Pac. R.R. Co. v. Kirby Inland, Marine, Inc. of Miss., 296 F.3d 671, 674 (8th Cir.2002). Subaqueous now urges that the trial judge foundered in its instruction on the Pennsylvania Rule, reasoning Corbin failed to offer evidence appellant violated a maritime safety statute or regulation.

Squaring away this issue turns generally on whether evidence at trial could support a finding that Subaqueous violated a statute or regulatory provision involving ma-me safety or navigation. See id. As the trial court explained in its instructions to the jury, the Rules of the Road apply to all vessels upon the inland waters of the United States. See 33 U.S.C. § 2001 (2009) (providing “[t]hese Rules apply to all vessels upon the inland waters of the United States”). The word “vessel” includes “every description of water craft, including nondisplacement craft and seaplanes, used or capable of being used as a means of transportation on water.” Id. § 2003(a). Appellant contends that the Rules of the Road could not have applied to it (but could have and should have applied to appellee) because Corbin’s boat collided with a pipeline, as opposed to a “vessel.” The better argument is that the operator of a tug such as the “Contender” cannot absolve itself of responsibility for the wanderings of objects loosed from one of its vessels. See In re Am. Milling Co., 270 F.Supp.2d 1068, 1096 (E.D.Mo.2003) (applying Rules of the Road to tow operator where captain’s negligence caused barges to break loose from tow and damage another vessel).

Appellee needed only to show that appellant violated one of the Inland Navigational Rules to warrant an instruction on the Pennsylvania Rule. Inland Navigational Rule 2 states in pertinent part:

Nothing in these Rules shall exonerate any vessel, or the owner ... thereof, from the consequences of any neglect to comply with these Rules or of the neglect of any precaution which may be required by the ordinary practice of seamen, or by the special circumstances of the case.

33 U.S.C. § 2002 (2009). In practice courts have interpreted this rule to require a general standard of due care. See, e.g., In re Am. Milling Co., Ltd., 409 F.3d 1005, 1012 (8th Cir.2005) (faulting captain for failing to properly consider strength of flood-level current existing on the evening of allision with the Eads Bridge, in violation of Rule 2 of the Inland Navigational Rules). Appellee presented competent substantial evidence that Johnson, operating the “Contender” to switch out the “Kenner” for the “Y2K,” allowed a black dredge pipe to float across the main channel off Horseshoe Beach in the process. Here, evidence of a wayward dredge pipe laid across a maritime throughway provided the bulwark for an instruction on Rule of the Road 2. As a result, we find no error in the reciprocal Pennsylvania Rule instruction.

C. Damages

Lastly, we review a trial court’s granting or denial of a motion for new trial for abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490, 494 (Fla.1999). Corbin alleges the trial court abused its discretion by refusing to order a new trial because the damages were against the manifest weight of the evidence. Broadly speaking, the jury’s verdict should be disturbed only when contrary to the manifest weight of the evidence. See id., at 492 (reviewing trial court’s granting of new trial on grounds that verdict was contrary to manifest weight of the evidence). Appellate courts will thus tolerate a list, but must guard against permitting capsize, when it comes to reviewing amount. We address each category of damages in turn.

The amount of an award for loss of future earning capacity should be measured by the plaintiffs diminished ability to earn income in the future, rather than plaintiffs actual loss of future earnings. See Auto-Owners Ins. Co. v. Tompkins, 651 So.2d 89, 91 (Fla.1995). The Florida Supreme Court has articulated the standard by which future damages are to be awarded, stating that “the appropriate test is to permit the recovery of future economic damages when such damages are established with reasonable certainty.” Id. at 90-91.

Subaqueous anchored its argument on this question upon Corbin’s tax return documentation from the four-year period beginning in 2002 and ending in 2005. Corbin’s average annual net income over this time came to just over $11,000, peaking at $14,420 in 2002. Roberts explained that income tax returns do not fully reflect the extent of gross revenue in a cash-based business like fishing. Cor-bin, meanwhile, alluded to unreported sources of income. Roberts, however, also agreed Corbin had reached his maximum earning capacity after 35 years as a commercial crabber. Of still greater significance was the information upon which Roberts relied in reaching his conclusion that appellee’s earning capacity exceeded $25,000 per year. Rather than limiting the inquiry to fishers and flshing-related occupations, Roberts surveyed a broad range of vocations and attendant income statistics from occupational codes compiled by the U.S. Bureau of Labor Statistics. These occupations included managers in the farming and forestry industry, agricultural inspectors, animal breeders, equipment operators, loggers, and forest conservation workers.

Appellee has not been, and was never likely to be, anything other than a fisherman. Our opinion is informed by appel-lee’s lifelong career as a waterman (which he began at age 12) and his testimony, “I never wanted to do anything but work on the water ... I wouldn’t be happy doing anything else.” Fully understanding that Florida law emphasizes the claimant’s capacity to earn, we are not persuaded Roberts established Cor-bin’s loss of future earning capability with sufficient reckoning. Roberts based the earning capacity calculation almost entirely on the aforementioned amalgam of diverse occupations, casting the $25,000 per year estimate adrift from a historical reality spanning the better part of 40 years. Corbin’s hint to additional, yet undisclosed, income appears the only evidence appellee’s earning capacity may have reached this level. Barring any proof that unreported income could have accounted for the nearly $14,000 difference between Roberts’ earning capacity calculation and appellee’s net income as appearing on his tax returns, this evidence, too, cannot be considered to infuse Roberts’ projections with the necessary degree of certainty. We thus find the court abused its discretion in denying appellant’s motion for new trial on this issue.

We next look at future medical expenses. The record must contain evidence from which the jury can determine the amount of medical expenses the plaintiff is reasonably certain to incur in the future. See Loftin v. Wilson, 67 So.2d 185, 188 (Fla.1953) (holding “only medical expenses which are reasonably certain to be incurred in the future are recoverable”). Here, Dr. Feussner merely surmised that epidural injections or IDD therapy could be appropriate at a later juncture in appellee’s treatment. Though Feussner ventured that surgery could cost as much as $30,000, he would not recommend a surgical approach unless Corbin lost a substantial amount of weight. Dr. Valentine, a pain management specialist, did discuss the possibility of facet joint blocks or rhizotomy, but appellee’s need for such treatments was similarly speculative. Moreover, with the exception of surgery, neither Feussner nor Valentine offered cost estimates for those procedures in the event they became medically advisable. The foregoing evidence does not provide sufficient ballast for anything more than a future need for pain medication.

The cost of the requisite pain medications would amount to just over $7,000 over the course of Corbin’s estimated remaining life, yet the jury awarded appellee $84,600 in future medical expenses. Given the lack of evidentiary support appellee would incur any medical expense beyond the pain medications, the court ventured too far off course in refusing to order a new trial as to future medicals.

Juries have wide latitude in determining an award of noneconomic damages in tort cases. See Bould v. Touchette, 349 So.2d 1181, 1184 (Fla.1977) (holding “verdict which has been approved by the trial court ... should not be disturbed on appeal ... in the absence of a showing that it imposes a hardship out of proportion to the injury suffered”). The party claiming an excessive verdict bears the burden to prove that the amount is not supported by the evidence or that the jury was influenced by matters beyond the bounds of the record. See Fla. Power & Light Co. v. Robinson, 68 So.2d 406, 415 (Fla.1953) (stating “burden is with him who assails the amount of the verdict to show that it is wholly unsupported by the evidence, or that the jury was influenced by passion [or], prejudice”).

Appellee provided substantial testimony on the nature and extent of his pain and suffering. A fisherman by career and avocation, appellee can no longer go out on the water due to his disc herniation, and he is expected to endure chronic pain. He suffers from injury-related depression, the result of serious limitations in his daily life, i.e., an inability to sleep at night, play with his grandchildren, and be generally independent. Counsel for appellee suggested a value of $5.00 per hour as compensation for appellee’s past and future pain and suffering. Extrapolated over a life expectancy of 22.8 years, this would amount to $1,231,000. A noneconomic damages award cannot be sustained if it is inordinately large, shocks the judicial conscience as having no reasonable evidentia-ry basis, or has been unduly influenced by passion or prejudice. Rety v. Green, 546 So.2d 410, 420 (Fla. 3d DCA 1989). Though the award for noneconomic damages ($1,438,000) was titanic by appellant’s measure, we have no basis to rule it was so inordinately large as to lack a reasonable relation to the damages proven. Given the extent to which the effects of appellee’s accident have permeated the various aspects of his everyday life, we cannot find the court strayed from the wide berth allowed by law in denying appellant’s motion for new trial on the issue of noneco-nomic damages.

AFFIRMED in part, REVERSED in part, and REMANDED.

THOMAS, J., and MORRIS, STAN R., Associate Judge, concur.

       As conveyed by the court, those rules read:
      Rule 2, Responsibility. Nothing in these rules shall exonerate any vessel or the owner, master or crew thereof from the consequences of any neglect of any precaution which may be required by the ordinary practice of seamen or the special circumstances of the case. Rule 5, Lookout. Every vessel shall at all times maintain a proper lookout by sight and hearing as well as by all available means appropriate in prevailing circumstances and conditions so as to make a full appraisal of the situation in the risk of collisions.
      Rule 6, Safe Speed. Every vessel shall at all times proceed at a safe speed so that she can take proper and effective action to avoid collision and be stopped within the distance appropriate for prevailing circumstances.
      Rule 7, Risk of Collision. Every vessel shall use all available means appropriate to the prevailing circumstances and conditions to determine if a risk of collision exists. If there is any doubt, such risk shall be deemed to exist.


author: PALMER, J.

text:
    Alfred Oliver WALLACE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2648.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Alfred O. Wallace, Jr., Bristol, pro se.
    Bill McCollum, Attorney General, Tallahassee and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Alfred Oliver Wallace, Jr., appeals the final order entered by the trial court summarily denying his motion for post-conviction relief filed pursuant to rule 3.850 of the Florida Rules of Criminal Procedure. Determining that one of the two claims of error raised by Wallace possesses merit, we affirm in part and reverse in part.

In claim one of his rule 3.850 motion, Wallace contended that he was improperly given a Prisoner Releasee Reoffender (PRR) sentence on his conviction for grand theft; a crime which is not a qualifying offense for PRR purposes. It appears that the trial court properly recognized that the grand theft offense was not a qualifying offense for PRR purposes, but did not enter a judgment which effectively carried out that understanding. Accordingly, we remand this matter to the trial court with instructions to grant Wallace relief on this claim. We affirm the trial court’s summary denial of claim two.

AFFIRMED in part'; REVERSED in part; and REMANDED.

EVANDER and COHEN, JJ„ concur.


text:
    STATE of Florida, Petitioner, v. Ashley ADORNO, Respondent.
    No. 5D09-3319.
    District Court of Appeal of Florida, Fifth District.
    Jan. 22, 2010.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Petitioner.
    Francis V. Iennaco, Orlando, for Respondent.
   PER CURIAM.

The State of Florida petitions for a writ of certiorari quashing the trial court’s September 1, 2009, order which excluded a key State witness from testifying at Respondent’s trial, based on the State’s commission of a Richardson violation. Respondent concedes error and, thus, we grant the petition for writ of certiorari and quash the order of the trial court excluding the State’s witness.

In O’Brien v. State, 454 So.2d 675, 676-77 (Fla. 5th DCA 1984), this court held:

Appellant’s trial counsel failed to comply with Florida Rule of Criminal Procedure 3.220(b)(3) because he did not timely file a list of defense witnesses within seven days of receipt of the state’s list of witnesses. Defense counsel should be discouraged from doing that. Under appropriate circumstances sanctions should also be imposed against defense counsel, or even the defendant in some cases. Here the trial judge excluded all defense witnesses from giving testimony. Although it is within the judge’s discretion to exclude witnesses that most extreme sanction should never be imposed except in the most extreme cases, such as when purposeful, prejudicial and with intent to thwart justice. Anderson v. State, 314 So.2d 803 (Fla. 3d DCA 1975); Williams v. State, 264 So.2d 106 (Fla. 4th DCA 1972); Kruglak v. Slate, 300 So.2d 315 (Fla. 3d DCA 1974); Patterson v. State, 419 So.2d 1120 (Fla. 4th DCA 1982).

(Emphasis added). See also State v. Gonzalez, 695 So.2d 1290, 1292 (Fla. 4th DCA 1997) (noting that exclusion of a witness is an appropriate sanction only where some lesser form of sanction has already failed); State v. Kalfani, 968 So.2d 599, 601 (Fla. 2d DCA 2007) (“This court has reiterated that an alternative to dismissal is to continue the case for a period of time that is sufficient for the defendant to obtain the discovery and prepare for trial, assuming adequate time remains under the defendant’s speedy trial period.”).

We are not unsympathetic to a trial court’s need to manage a docket, frustrated by last minute delays on both sides, often occasioned by a lack of preparation. However, exclusion of either a State or defense witness is an extreme sanction reserved for exceptional circumstances not found in the instant case.

PETITION GRANTED; ORDER QUASHED.

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

      . Richardson v. State, 246 So.2d 771 (Fla.1971).


author: WETHERELL, J.

text:
    J.B.D. BROTHER’S and Masonry, Inc. and Florida Citrus Business & Industry/USIS, Appellants, v. Angel MIRANDA, Appellee.
    No. 1D09-3402.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.
    Neal L. Ganon and Marissa M. Hoffman of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellants.
    Kenneth B. Schwartz, West Palm Beach, for Appellee.
   WETHERELL, J.

The employer/carrier (E/C) raises three issues in this workers’ compensation appeal: 1) whether the Judge of Compensation Claims (JCC) erred in directing the E/C to pay a bill for an MRI performed on Claimant; 2) whether the JCC’s award of temporary total disability benefits was supported by competent substantial evidence; and 3) whether the JCC erred in determining that Claimant had wages for purposes of calculating Claimant’s average weekly wage (AWW). We affirm the second issue without discussion. We affirm the third issue based upon our decision in Rene Stone Work Corp. v. Gonzalez, 25 So.3d 1272 (Fla. 1st DCA 2010), and we reverse the first issue for the reasons that follow.

Claimant is an illegal alien from Mexico who has lived in the United States since 2000. Claimant began working as a forklift driver and laborer for the employer in June 2008. Claimant was injured on July 23, 2008, when he fell from a scaffold on the employer’s job site in Miami.

The employer did not immediately report the accident to its workers’ eompen-sation insurance carrier. Instead, the employer agreed to pay for Claimant’s medical care and his lost time from work until he recuperated. These payments, like the wages that the employer paid Claimant, were made “under the table” in cash.

The employer stopped making the payments in mid-September 2008, and Claimant thereafter retained an attorney and filed a petition for benefits (PFB). At that point, the employer reported the accident to its workers’ compensation insurance carrier. The accident and injury were accepted as compensable, but the carrier denied indemnity benefits because there was no record of any wages having been reported to the Internal Revenue Service (IRS) for Claimant.

In April 2009, Claimant, with the assistance of his attorney, filed several forms with the IRS, including a Form 1040 on which he reported his income for 2008 to be $8,256 and a Form W-7 entitled “Application for IRS Individual Taxpayer Identification Number.” The parties stipulated that the income Claimant reported to the IRS equates to an AWW of $480, but the E/C argued that because Claimant did not file the correct forms or complete information with the IRS, he did not properly report his income and therefore he failed to establish his wages for purposes of calculating an AWW. The JCC rejected this argument, as do we based upon the analysis in Rene Stone Work Corp., supra.

The PFB sought authorization and payment for an MRI that had been recommended by a physician who saw Claimant prior to the filing of the PFB. The E/C authorized the procedure, and it was performed on November 3, 2008. There was no evidence that Claimant was billed for the procedure, but because the E/C’s records did not reflect that the bill had been paid, the JCC ordered the E/C to pay for the MRI “per the fee schedule.”

We agree with the E/C that the JCC lacked jurisdiction to order payment of the MRI bill. Disputes concerning an E/C’s failure to pay medical bills submitted to it by an authorized physician are subject to the exclusive jurisdiction of the Agency for Health Care Administration, not the JCC. See § 440.13(l)(r) and (ll)(c), Fla. Stat. (2008); Orange County v. Willis, 996 So.2d 870, 871 (Fla. 1st DCA 2008); Avalon Center v. Hardaway, 967 So.2d 268, 271-73 (Fla. 1st DCA 2007). Moreover, Claimant has no standing to seek payment of a bill on behalf of a health care provider because he is not responsible for paying the bill and the provider’s sole recourse is to seek payment from the E/C. See Avalon Center, 967 So.2d at 274 (quoting sections 440.13(3)(g) and (14)(a)).

For these reasons, we reverse that portion of the JCC’s order directing the E/C to pay the MRI bill. In all other respects, the JCC’s order is affirmed.

AFFIRMED in part; REVERSED in part.

LEWIS and THOMAS, JJ., concur.


text:
    RENE STONE WORK CORPORATION and Florida Citrus Business & Industry and USIS, Appellants, v. Nelson GONZALEZ, Appellee.
    No. 1D09-3271.
    District Court of Appeal of Florida, First District.
    Jan. 25, 2010.

      Neal L. Ganon and Marissa M. Hoffman of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., West Palm Beach, for Appellants.
    Jane-Robin Wender of Wender & Associates, P.A., Lake Worth, for Appellee.
   WETHERELL, J.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues that the Judge of Compensation Claims (JCC) erred by: 1) awarding Claimant temporary indemnity benefits; 2) denying the E/C’s motion to amend its pre-trial stipulation after the final hearing to assert a misrepresentation defense; and 3) finding Claimant had an average weekly wage (AWW) of $290.00. For the reasons explained below, we reverse as to the first issue, and affirm as to the second and third issues.

Factual Background

Claimant suffered a compensable accident on September 4, 2008, which necessitated the amputation of the lower portion of his left leg and the use of a prosthesis. Claimant sought a determination of the correct AWW for calculating the amount of catastrophic temporary total indemnity benefits to which he claimed entitlement. The E/C contended that Claimant’s AWW was zero due to his failure to report his wages for income tax purposes as required by section 440.02(28), Florida Statutes (2008).

Claimant testified that he was neither a United States citizen nor resident alien, and that he did not have, nor had he ever used, a Social Security number. He also testified that the Employer never required him to fill out any paperwork or provide documentation of his residency/citizenship status prior to his being hired, that he did not know whether the Employer withheld payroll taxes or reported his wages to the Internal Revenue Service (IRS), and that the Employer did not give him a W-2 form. The Employer admitted that he neither reported Claimant’s wages to the IRS nor paid any payroll taxes on him.

Claimant testified that he was paid $58.00 in cash per day, five days a week, which equates to $290.00 per week. The Employer testified that Claimant was paid $8.00 per hour and that he worked seven to eight hours a day, but only two to four days a week. The JCC apparently accepted Claimant’s testimony as being more credible because, as noted below, she determined his AWW to be $290.00.

Claimant testified that, with the help of a certified public accountant (CPA), he filed a tax return for 2008, and that on his attorney’s advice, the income he reported on his 2008 tax return reflected only the wages he was paid by the Employer and omitted the wages he earned that year from previous employers. On cross-examination during the final hearing, Claimant acknowledged that he filed the tax return solely for the purpose of obtaining workers’ compensation benefits.

Claimant’s CPA testified that he prepared and filed a tax return on Claimant’s behalf for wages earned in 2008, including a Form W-7 (application for IRS tax identification number), Form 1040, Schedule C-EZ (net profit from business form), and Schedule SE (self-employment tax form). The CPA testified that he filed these forms because the Employer did not provide Claimant with a W-2 and it therefore became Claimant’s responsibility to report his earnings to the IRS. The return indicated earnings of $3,770.00, which amount was based on $58.00 per day multiplied by five days per week for thirteen weeks. The CPA executed an affidavit attesting that by filing a tax return, Claimant “has reported his income to the federal government as the term ‘reported’ is generally understood in the accounting and tax-preparing community.”

One week after both sides rested and the record was closed, the E/C filed a motion to amend its pre-trial stipulation, asserting that the testimony of Claimant and his accountant during the final hearing revealed that Claimant had not reported all of his 2008 taxable income to the IRS, which, the E/C argued, constituted a violation of section 440.105(4)(b), and thus required a forfeiture of all workers’ compensation benefits pursuant to section 440.09(4)(a). The JCC did not rule on this motion.

In her final order, the JCC found that Claimant “reported his 2008 earnings from the Employer to the IRS in [January 2009]”; that “the cash payments made to him constitute ‘wages’ as defined in F.S. 440.02(28)”; and that the “unrefuted evidence” showed Claimant’s AWW is $290.00. The final order also awarded Claimant temporary indemnity benefits for the period of September 4, 2008, through March 4, 2009.

The E/C filed a motion for rehearing, arguing that the JCC misapprehended this court’s decision in Fast Tract Framing, Inc. v. Caraballo, 994 So.2d 355 (Fla. 1st DCA 2008), in finding Claimant complied with section 440.02(28), and that Claimant forfeited his rights to all workers’ compensation benefits by allegedly violating section 440.105(4)(b). The JCC denied this motion.

Analysis

The JCC’s Award of Indemnity Benefits

The E/C argues that the JCC’s award of indemnity benefits was improper because the parties and the JCC agreed at the final hearing that the only issue for determination at that time was Claimant’s correct AWW. In his brief, Claimant concedes this was indeed what occurred at the hearing. Because the record supports the E/C’s contention and Claimant’s concession, the award of indemnity benefits was error, and we reverse the final order as to this issue.

The E/C’s Misrepresentation Defense

The E/C argues that the JCC abused her discretion in denying its post-hearing motion to amend its pre-trial stipulation to include a misrepresentation defense pursuant to section 440.105(4)(b). The E/C contends that it could not have asserted the defense any sooner because it did not become aware of the defense until after Claimant and his accountant testified at the final hearing that Claimant’s tax return included only the wages he was paid by the Employer, and excluded wages that he earned during 2008 with prior employers.

The record, however, establishes that with due diligence the E/C should have, or at least could have, known of this potential defense prior to the final hearing. Claimant was deposed regarding his prior employment and the tax returns and an affidavit from the CPA were produced pri- or to the hearing. The CPA was listed by Claimant as a witness on the pre-trial stipulation, but he was not deposed by the E/C. Additionally, the E/C was clearly aware of the factual basis for the defense at the final hearing because during closing arguments, the E/C’s attorney made reference to Claimant’s incomplete tax return, and argued that the incompleteness rendered the return insufficient to satisfy the reporting requirement in section 440.02(28).

In light of these circumstances, the JCC did not abuse her discretion in denying the E/C’s motion to amend its pre-trial stipulation to include a potential misrepresentation defense after the record had closed. Cf. Isaac v. Green Iguana, Inc., 871 So.2d 1004 (Fla. 1st DCA 2004) (discussing the due process concerns raised by allowing an E/C to amend the pre-trial stipulation to raise a fraud defense for the first time on the day of the final hearing).

Average Weekly Wage

The E/C contends that the JCC committed two errors with respect to the AWW issue. First, the E/C argues that the JCC incorrectly found that there was “unrefut-ed” evidence that Claimant’s AWW was $290.00. Second, the E/C argues that the JCC erred by finding that Claimant complied with the reporting requirement in section 440.02(28) in order to have wages upon which his AWW could be calculated.

With respect to the first point, we agree that the JCC’s characterization of the evidence of Claimant’s AWW as “unre-futed” was incorrect in light of the Employer’s contradictory testimony concerning Claimant’s rate of pay and number of days worked. It is clear, however, that the AWW calculated by the JCC was based upon Claimant’s testimony, which the JCC accepted as credible. Thus, because competent substantial evidence supports the JCC’s AWW calculation, any error concerning the JCC’s finding that the evidence was “unrefuted” was harmless.

With respect to the second point, although the E/C acknowledges that Claimant filed with the IRS the tax forms testified to by his accountant, the E/C argues this was insufficient to satisfy the statutory reporting requirement because Claimant did not file what the E/C contends were the correct forms. In support of this argument, the E/C relies on its interpretation of various IRS publications that were not introduced as evidence at the final hearing below, and in so doing, the E/C essentially asks us to substitute our judgment for the unrefuted testimony of a CPA regarding what forms Claimant was supposed to file given his tax and immigration status.

In essence, the E/C argues that section 440.02(28) requires a claimant to comply with the precise IRS statutory/regulatory provisions applicable to his tax situation, and if he does not, the claimant has no wages under the statute. The JCC rejected this argument, stating:

I decline to read F.S. 440.02(28) as requiring Claimant to be knowledgeable about the IRS Tax Code and Tax Regulations to the technical degree suggested by the Employer/Carrier with respect to the “reporting” of earnings. I find that no authority — statutory or case law, was presented to support the Employer/Carrier’s position that an unsophisticated working person should be held to be responsible for knowledge of the myriad of regulations contained in the U.S. Tax Code, or that the Legislature intended that a JCC decipher the U.S. Tax Code when determining whether an injured worker “reported” his earnings to the IRS.

(emphasis in original).

We agree with the JCC that section 440.02(28) does not require the level of precision urged by the E/C. The statute provides in relevant part:

“Wages” mean the money rate at which the services rendered is recompensed under the contract of hiring in force at the time of injury and includes only the wages earned and reported for federal income tax purposes on the job where the employee is injured and any other concurrent employment where he or she is also subject to workers’ compensation coverage.

(emphasis added).

In Fast Tract, we gave the statute its plain meaning and held, over a spirited dissent, that section 440.02(28) requires the claimant “to show that he reported his wages for federal income tax purposes.” 994 So.2d at 358. We did not address in that case the issue of what constitutes “reported” for the statute’s purposes because there, unlike here, the claimant failed to file a tax return or any other documentation with the IRS. Id. at 356. We did, however, make clear that the statute required the claimant’s wages to be reported to the IRS, and not just his employer. Id. at 357. Although the claimant argued that “requiring him to report his income to the government for income tax purposes [was] ‘abominable’ public policy,” id., and the dissent asserted that based upon our holding an illegal or undocumented alien “could succeed in obtaining [workers’ compensation] benefits only if he reported the existence of his unlawful employment to the government,” id. at 359 (Padovano, J., dissenting), we held that these policy arguments should be addressed to the legislature. Id. at 358.

This case is distinguishable from Fast Tract and Centimark Corp. v. Gonzalez, 10 So.3d 644 (Fla. 1st DCA 2009), in which the claimants failed to report their income to the IRS. Here, Claimant timely filed a tax return in which he informed the IRS of the wages that he earned with the employer for whom he was working when he was injured. This satisfied the reporting requirement in section 440.02(28), and because the JCC’s findings on this issue are supported by competent substantial evidence, we affirm the AWW established in the final order.

Conclusion

For the foregoing reasons, we affirm the JCC’s order in all respects except for the award of temporary indemnity benefits. On that issue, we reverse and remand for further proceedings consistent with this opinion.

AFFIRMED in part; REVERSED in part; and REMANDED.

LEWIS and THOMAS, JJ., Concur.


author: GERBER, J.

text:
    Anthony Scott BAINES, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2496.
    District Court of Appeal of Florida, Fourth District.
    Jan. 27, 2010.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   GERBER, J.

The defendant committed a shooting and, less than an hour later, caused a high-speed fatal car crash four miles away. The state, alleging that the defendant was escaping from the shooting when he caused the crash, convicted him of felony murder and other charges. The defendant challenges his felony murder convictions, arguing that the state failed to prove an unbroken “chain of circumstances” between the two events. We affirm. Even though the state could not account for the defendant’s every action between the two events, the state introduced sufficient evidence to prove that the defendant was escaping from the shooting when he caused the crash.

The defendant was at a bar around 9:30 p.m. when he got into an argument with another customer. Two bar employees took the defendant outside. When the employees returned, another customer told them that the defendant said he was going to come back with a gun. The employees went to lock the bar’s door. When they reached the door, they saw the defendant leaning over his car, aiming a gun at them. The defendant fired three times, but missed. The defendant got into his car and sped away. The police began looking for the defendant, but they could not find him.

Meanwhile, the defendant went to another bar, arriving at about 10:00 p.m. Around 12:30 a.m., he went outside and got into an argument with another customer. The defendant went to his car and got his gun. He came back and shot the man three times, none fatally. A bartender ran outside and yelled that the police were coming. The defendant fired a shot in the air, then got into his car and “punched it,” according to the bartender.

A witness driving past the bar saw the shooting and saw- the defendant speed away. She called 911 at 12:53 a.m. She followed the defendant as he turned down a side street, then made a u-turn. As the defendant made the u-turn, the police approached with their overhead lights on. The defendant switched off his car’s headlights and disappeared down another side street. The police continued to look for the defendant.

Forty-six minutes later, at 1:39 a.m., and approximately four miles from the second shooting, the police were staked out at the defendant’s residence along a state road. The police saw the defendant’s car speed past, at what they estimated as 100 miles per hour, heading towards the interstate highway. The defendant ran two red lights before crashing into a car containing a husband and wife and their pregnant daughter. The crash killed the husband and wife, severely injured them daughter, and killed the unborn child. The defendant survived with minor injuries. His car’s speedometer was frozen at 105 miles per hour.

The state charged the defendant with several crimes. For the first shooting, the state charged the defendant with aggravated assault involving the discharge of a firearm, and shooting a deadly missile. For the second shooting, the state charged the defendant with attempted first degree murder. For the crash, the state charged the defendant with two counts of first degree felony murder of the husband and wife, and one count of attempted felony murder of the daughter, based on the allegation that the defendant was escaping from the second shooting when he caused the crash. The state also charged the defendant with three counts of vehicular homicide, one count of killing an unborn child by injury to the mother, and one count of reckless driving causing serious bodily injury.

The jury found the defendant guilty of all charges except attempted first degree murder for the second shooting. On that charge, the jury found the defendant guilty of the lesser included offense of attempted second degree murder. The trial court sentenced the defendant to life in prison without the possibility of parole based on the convictions for felony murder, attempted second degree murder, and killing an unborn child. This appeal followed.

The defendant argues that the state failed to prove felony murder because it did not prove a causal connection between the second shooting and the crash. Specifically, the defendant contends that, although forty-six minutes passed between the defendant’s leaving the second shooting and the crash, the locations of those events were only four miles apart. According to the defendant, had he been fleeing the shooting, it would have taken him only a few minutes to go from the shooting location to the crash scene. However, the defendant claims that, because the state failed to prove an unbroken chain of circumstances, no reasonable jury could have found he was in perpetration of fleeing the second shooting at the time of the crash.

Recognizing that he did not present this argument to the trial court, the defendant contends that his argument is reviewable for the first time on appeal because a conviction upon insufficient evidence constitutes fundamental error. See F.B. v. State, 852 So.2d 226, 230-31 (Fla.2003) (“[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.”); Smith v. Crosby, 872 So.2d 279, 283 (Fla. 4th DCA 2004) (“Where such fundamental error occurs, an appellate court will forgive the failure of preservation and review the legal sufficiency of the conviction on appeal.”).

The state properly acknowledges that the defendant can raise the sufficiency of evidence for the first time on appeal. On the merits, the state argues that it submitted sufficient evidence to prove the crash occurred during the defendant’s escape from the second shooting. The state contends that the defendant’s evasive maneuvers after the second shooting, combined with his speeding down the state road forty-six minutes later, indicate he knew he was being sought for the shootings, and he was attempting to avoid capture.

The supreme court articulated our standard of review in Pagan v. State, 830 So.2d 792 (Fla.2002):

Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (internal citations omitted). Applying that standard, we find that the defendant’s known actions between the second shooting and the crash were sufficient to prove that the defendant was escaping from the shooting when he caused the crash.

According to the standard jury instruction for first degree felony murder, as used in this case, the state had to prove, among other elements, that the husband’s and wife’s deaths occurred as a consequence of the defendant escaping, and while the defendant was escaping, from the immediate scene of the second shooting. See Fla. Std. Jury Instr. (Crim.) 7.3 (“To prove the crime of First Degree Felony Murder, the State must prove ... [t]he death occurred as a consequence of and while (defendant) ... was escaping from the immediate scene of (crime alleged).”). The standard jury instruction derives from section 782.04, Florida Statutes (2005), which provides, in pertinent part: “The unlawful killing of a human being ... [w]hen committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any ... [m]urder of another human being ... is murder in the first degree ....” § 782.04(l)(a)2.o., Fla. Stat. (2005) (emphasis added).

We more fully explored the term “in the perpetration of’ in Wagner v. State, 921 So.2d 38 (Fla. 4th DCA 2006):

The term “in the perpetration of’ includes the period of time when a [defendant] is attempting to escape from the scene of the crime. Absent some definitive break in the chain of circumstances beginning with the felony and ending with the killing, the felony, although technically complete, is said to continue to the time of the killing. The State must prove that there was no break in the chain of circumstances beginning with the felony and ending with the murder.
Factors such as the relationship between the underlying felony and the homicide in point of time, place and causal relationship are important in determining whether there was a break in the chain of circumstances. In the case of flight, an important consideration is whether the fleeing felon has reached a place of temporary safety. If the killing is a predictable result of the felonious transaction, [n]either the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction.

Id. at 40-41 (internal quotations and citations omitted).

Here, the state introduced sufficient evidence to prove that there was no break in the chain of circumstances beginning with the second shooting and ending with the crash. Only forty-six minutes passed between the defendant’s flight from the second shooting and the crash, and only four miles separated the two events. Immediately after the second shooting, the defendant was making evasive maneuvers, indicating that he knew he was being sought, and that he was attempting to avoid capture. Forty-six minutes later, the defendant, driving approximately 100 miles per hour, sped past his residence — -a likely “place of temporary safety” — and ran two red lights while en route towards an interstate highway. These facts support an escape theory, and make the crash a predictable result of the escape from the second shooting.

These facts are most similar to the case upon which the state primarily relies, Parker v. State, 570 So.2d 1048 (Fla. 1st DCA 1990). There, two brothers robbed and kidnapped a man who was stopped along an interstate highway. The robbers drove to a gas station, where the victim escaped. The victim approached one of the robbers inside the gas station, which prompted the robbers to get in their vehicle and flee. A bystander followed the robbers. The robbers traveled up and down several streets. The robbers then stopped at a convenience store to ask for directions to the interstate highway. The robbers got on the highway heading towards a city where they had a hotel room. When sheriffs deputies began following them, the robbers fled at between 100 and 110 miles per hour. Further down the highway, a deputy set up a roadblock. That deputy was killed when he was struck by a pursuing deputy’s vehicle. Other deputies later captured the robbers. The entire incident, from robbery to capture, took no more than an hour.

The robbers were convicted of second degree felony murder for the deputy’s death. The robbery served as the underlying felony. One of the robbers appealed, arguing that the robbery could not serve as the underlying felony because the robbery was complete before the deputy’s death. The first district, applying the factors which we later adopted in Wagner, held that the robbery was not complete before the deputy’s death. 570 So.2d at 1052. The court reasoned that the time from the robbery to the death was no more than an hour, the death occurred no more than several miles from the robbery, and the only stops that the robbers made, to get gas and directions, were made to accomplish their goal of fleeing from the robbery to a place of safety, their hotel room. Id. The court concluded that these facts established a causal relationship between the robbery and the deputy’s death which was sufficient to support the felony murder conviction. Id.

Only one material distinction exists between Parker and this case. In Parker, the state appears to have accounted for the entire chain of circumstances from the robbery to the crash. Here, as the defendant points out, the state could account for only the first and last few minutes of his actions in the forty-six minutes between the defendant’s flight from the second shooting and the crash. The state presented no evidence of where the defendant was the remainder of that time. And, as the defendant notes, after the first shooting, he did not flee, but simply went to another bar.

However, we hold that the state did not have to account for the defendant’s every action between the second shooting and the crash to prove there was no break in the chain of circumstances between the two events. Rather, the state’s evidence of the defendant’s known actions between the two events was sufficient to prove that the crash was a predictable result of the defendant’s escape from the shooting. See Wagner, 921 So.2d at 41 (“If the killing is ‘a predictable result of the felonious transaction,’ ‘[njeither the passage of time nor separation in space from the felonious act to the killing precludes a felony murder conviction.’”) (internal citations omitted).

To hold otherwise would reward an escaping felon, such as the defendant, who successfully evades pursuit, even for a few minutes. We already have addressed such a factual scenario in the state’s favor. See State v. Hacker, 510 So.2d 304, 306 (Fla. 4th DCA 1986) (state established prima facie felony murder case even though witness lost sight of fleeing robbers for two minutes before witness reached fatal crash). Conversely, we also have recognized that a temporal break may be too attenuated to support a conviction. See State v. Williams, 776 So.2d 1066, 1071 (Fla. 4th DCA 2001) (affirming felony murder acquittal where state acknowledged that defendant, after stealing vehicle, had reached several places of temporary safety during next twenty-four hours before causing fatal crash). Because temporal breaks can vary, each situation should be examined on a case-by-case basis.

The defendant, relying on Williams, argues that the statutory “rule of lenity” must be applied when determining whether a killing occurred “in the perpetration of’ a felony as that phrase is used in section 782.04, Florida Statutes. The rule of lenity provides:

The provisions of this code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.

§ 775.021(1), Fla. Stat. (2005). The defendant’s reliance on Williams for application of the rule of lenity is misplaced. In Williams, we applied the rule to section 782.04(4)’s reference to “any felony” to determine whether to measure the chain of circumstances from a carjacking or a grand theft. We did not apply the rule to section 782.04(4)’s reference to “in the perpetration of.” Instead, we interpreted that phrase in Wagner, as stated earlier in this opinion.

Like Williams, the other cases upon which the defendant relies for reversal are distinguishable because, in those cases, the appellate court found a large temporal break in the chain of circumstances between a felony and a crash. See House v. State, 831 So.2d 1230, 1232 (Fla. 2d DCA 2002) (state presented no evidence of when defendant came into possession of stolen vehicle discovered missing nearly six hours before fatal crash); Lester v. State, 737 So.2d 1149, 1151-52 (Fla. 2d DCA 1999) (defendant was not fleeing scene of crime when he caused crash while driving car which someone stole the previous evening); Allen v. State, 690 So.2d 1332, 1334-35 (Fla. 2d DCA 1997) (break in chain of circumstances occurred between early morning hours when someone stole car and later that evening when defendant was involved in crash while driving stolen car).

In this case, however, the temporal break between the felony and the crash was relatively short — approximately forty-six minutes. When combining that short time span with the defendant’s evasive maneuvers, driving approximately 100 miles per hour, speeding past his residence, and running two red lights while en route towards an interstate highway, the state introduced sufficient evidence to prove there was no break in the chain of circumstances between the second shooting and the fatal crash. The crash was a predictable result of the defendant’s escape from the shooting. Therefore, we affirm the defendant’s felony murder convictions.

Affirmed.

POLEN and MAY, JJ., concur.


text:
    AMERICARE HOME HEALTHCARE SERVICES, INC., Appellant, v. The STATE of Florida, DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 3D09-1542.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Joseph Perea, Miami, for appellant.
    Timothy L. Newhall, Assistant General Counsel, Department of Financial Services, Division of Legal Services, for appel-lee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Patz v. Dep’t of Health, 864 So.2d 79 (Fla. 3d DCA 2003).


author: PER CURIAM. COPE, J.

text:
    Jerome DAVIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2038.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.

      Carlos J. Martinez, Public Defender, and Manuel Alvarez, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed without prejudice to appellant’s raising a claim of ineffective assistance of trial counsel in an appropriate Rule 3.850 motion.

COPE, J.

(concurring).

The sole issue raised on this direct appeal from conviction and sentence is the claim that trial counsel was ineffective and that this can be determined from the face of the record. The majority opinion affirms without prejudice to the appellant to file a postconviction motion under Florida Rule of Criminal Procedure 3.850. In so stating we are not, of course, expressing any opinion on the merits of any motion that the appellant may file.


text:
    Terrance AIKENS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-2815.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.
    Clayton R. Kaeiser, Miami, for appellant.
    Bill McCollum, Attorney General, and Rolando A. Soler, Assistant Attorney General, for appellee.
    Before RAMIREZ, C.J., and CORTIÑAS, J. and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed.

The claim was time-barred, see Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009). In addition, under the facts of this case, the erroneous use of “and/or” in the jury instruction did not constitute fundamental error, see Garzon v. State, 980 So.2d 1038 (Fla.2008).


text:
    DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. Brian P. PATCHEN, et al., Appellees.
    No. 3D09-330.
    District Court of Appeal of Florida, Third District.
    Jan. 27, 2010.

      Adorno & Yoss, Wesley R. Parsons and Jack R. Reiter, Miami, for appellant.
    Alters Boldt Brown Rash & Culmo and Robert C. Gilbert, Miami; Weiss Serota Helfman Pastoriza Cole & Boniske and Joseph H. Serota, Miami, for appellees.
    Before WELLS, SHEPHERD, and CORTINAS, JJ.
   SHEPHERD, J.

In this case, the Florida Department of Agriculture and Consumer Services seeks review of a non-final order granting a stay of an individually filed inverse condemnation action, for the destruction of citrus canker exposed trees, pending a decision of the Fourth District Court of Appeal in a related class action on which it appears the briefing recently has been completed. The Department characterizes the order under review as “in the nature of an injunction” and therefore seeks to invoke the jurisdiction of this Court under section 9.130(a)(3)(B) of the Florida Rules of Appellate Procedure. We treat the appeal as a petition for certiorari but deny the relief sought.

      . Although there has been some sentiment expressed by this Court that orders granting or denying a stay of proceedings before the entry of final judgment should be treated as an appeal from a non-final order granting or denying an injunction, see Klein v. Royale Group, Ltd., 524 So.2d 1061, 1063 (Fla. 3d DCA 1988), the law of this district appears to remain that certiorari is the appropriate procedure by which to seek review of such orders. See Pilevsky v. Morgans Hotel Group Mgmt., LLC, 961 So.2d 1032, 1033 (Fla. 3d DCA 2007); Transcontinental Realty Corp. v. Ezell, 365 So.2d 404, 404 (Fla. 3d DCA 1978).