author: B.L. Thomas, C.J.

text:
    Christopher Ray SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2771
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 29, 2019
    Andy Thomas, Public Defender, Kathryn Lane, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, Robert Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   B.L. Thomas, C.J.

Appellant challenges his probation revocation, arguing that the violation affidavit was insufficient, and that he was denied an opportunity to be heard before his sentence was imposed. We affirm the trial court's decision to revoke Appellant's probation, but we vacate the sentence imposed at the violation of probation hearing and remand for resentencing by a new judge.

Background

In 2013, Appellant was charged by information with aggravated child abuse. Pursuant to a plea agreement, Appellant was sentenced to 36 months of probation. In 2016, the State alleged that Appellant had violated Condition Five of his probation by committing two counts of "Sexual Assault." The accompanying violation report listed the underlying offenses as "Eighteen (18) YOA or Older Sexual Battery on a Victim Under Twelve (12) YOA." The violation report alleged that Appellant placed his fingers inside of the child victim, who was five to six years old at the time of the alleged incidents. The violation report alleged that the victim was hurt and yelled for Appellant to stop.

At the jury trial for Appellant's sexual battery offenses, the victim's mother and grandmother testified that Appellant, who was married to but separated from the child's mother, had raised the child victim since her birth. They testified that one night, the victim told them that her "daddy" had been touching her when she would go stay with him. The victim's grandmother testified that the victim told her that the touching hurt, and that she would yell for it to stop. The child's mother admitted that the doctors found no evidence of physical injury when they immediately took her for a medical examination. The State played a recording of the victim being interviewed by a case coordinator from the Department of Health. On the tape, the child victim described Appellant pulling down her underwear at night and putting his hands on the outside and inside of her skin. The child victim took the stand and testified that Appellant had repeatedly touched her private parts with his tongue and his finger; she testified that his finger went "almost inside."

After the close of the evidence at trial, while the jury was deliberating, the trial court conducted an evidentiary hearing on the charged probation violation. After closing argument and jury instructions, the trial court asked the State if any other evidence would be presented on the probation violation, and the State replied, "Nothing extra, Judge." The trial court then revoked Appellant's probation and sentenced him to five years in prison. The trial court told Appellant: "And I did not give your attorney any chance for input because of the nature of the charge, it's very serious. So I'm just giving you the maximum which is five years." Defense counsel raised no contemporaneous objections at the probation-violation hearing.

After an initial deadlock, the jury found Appellant not guilty of the charged sexual batteries. The jury attached a note stating that it was the consensus of the jury that Appellant had done some illegal act, but that the evidence did not prove the specific act.

After the jury trial, the trial court entered a second amended order of revocation of probation, stating that it found Appellant guilty of violating Condition Five of his probation, based on the charges alleged in the amended affidavit.

Sufficiency of the Amended Violation of Probation Affidavit

"A trial court fundamentally errs by revoking probation on grounds not alleged in the violation of probation affidavit." McCloud v. State , 249 So.3d 739, 741 (Fla. 1st DCA 2018). However, a revocation of probation hearing "is not required to assume the full proportions of a criminal trial. The authorities are in accord on the proposition that the revocation hearing may be informal." State ex rel. Roberts v. Cochran , 140 So.2d 597, 599 (Fla. 1962). Likewise, "formal conviction of a crime is not essential to enable the judge to revoke the order of probation." Id. (noting that a judge conducting such a hearing is only required "to determine whether in his own mind a law had been violated").

In Hines v. State , 358 So.2d 183, 184 (Fla. 1978), a probation-violation affidavit alleged that the probationer violated the conditions of his probation when he was "arrested by Sarasota Deputy B. Blosser for burglary[.]" The affidavit provided no further details of the offense. Id. The supreme court held that "an affidavit upon which a permanent revocation of probation is to be based must allege the basic facts concerning the alleged violation, such as its nature, time, and place of occurrence." Id. at 185. However, although "the written factual allegations in the affidavit for violation of probation were insufficient to provide notice to the probationer with what criminal act he was charged[,]" the supreme court held that this error was harmless, for the record showed that the probationer clearly had notice of the charges against him. Id.

Here, the amended affidavit, which the trial court relied upon as the basis for revoking Appellant's probation, stated that Appellant twice violated Condition Five of his probation "by being arrested for ... Sexual Assault ...." Appellant argues that because there is no such crime of "sexual assault" defined in the Florida Statutes, the trial court fundamentally erred by revoking probation based on non-existent crimes.

Appellant is correct that there is no crime of sexual assault defined in the Florida Statutes. Although the amended affidavit stated the basic nature of the offenses (sexual assaults), the time ("between the dates of April 20, 2015 and April 24, 2016"), and the place ("Escambia County, Florida"), the affidavit itself did not allege any details of the sexual batteries, nor did it state which statutory provisions were allegedly violated.

However, despite any purported deficiencies of the amended affidavit, Appellant, like the probationer in Hines , was clearly on notice of the crimes for which he was arrested and charged. The violation report that accompanied the amended affidavit referred to the underlying offenses as "Two (2) counts of Sexual Assault by an Eighteen (18) YOA or Older Sexual Battery on a Victim Under Twelve (12) YOA." ' The report described the acts in detail and stated the dates of the offenses and arrest.

Moreover, before opening statements at Appellant's sexual battery trial (which concluded with Appellant's violation of probation hearing), the trial court stated that "[t]he defendant is charged with two counts of sexual battery, victim less than 12 years and defendant over 18 years." The trial court repeated this description of the charged offenses at the beginning of jury instructions. At the same trial, the parties argued at sidebar about how to conduct the violation of probation hearing; defense counsel argued for the hearing to be held after the verdict on Appellant's sexual battery charges. Defense counsel never asserted during the trial or at the violation of probation hearing that Appellant had insufficient notice of what crimes constituted the alleged violations, and never moved for a more definite statement of particulars. See Fla. R. Crim. P. 3.140(n).

Because the sexual battery charges were described on the violation report and at trial, the record shows that Appellant was on notice of the charged offenses underlying his probation violation charges. Accordingly, Appellant's due process rights were not violated.

The Trial Court's Refusal to Allow Defense Counsel to Be Heard Before Imposing the Sentence

A trial court's refusal to hear evidence and argument regarding a sentence constitutes a denial of due process and is fundamental error. Davenport v. State , 787 So.2d 32, 32 (Fla. 2d DCA 2001) ; Ventura v. State , 741 So.2d 1187, 1189 (Fla. 3d DCA 1999) ; see also Colette v. State , 881 So.2d 41, 42 (Fla. 1st DCA 2004) ("Because the trial court refused to 'entertain submissions and evidence by the parties that are relevant to the sentence' ..., we reverse and remand for further proceedings.") (quoting Petrucelli v. State , 855 So.2d 150, 154 (Fla. 2d DCA 2003) ).

The State concedes that Appellant was denied an opportunity to be heard prior to imposition of his sentence, and that Appellant's sentence must be vacated and this case remanded for resentencing. The State argues only that the same trial judge should be permitted to conduct the sentencing hearing on remand. However, the cases upon which the State relies did not involve a stated intention to deny the defense an opportunity to be heard. See Collette , 881 So.2d at 42 ; Davenport , 787 So.2d at 32. By telling Appellant that defense counsel was intentionally denied any input and that the sentence was determined solely on the nature of the charged offense, the trial court indicated a determination to impose the maximum sentence before hearing arguments. See Thompson v. State , 990 So.2d 482, 490 (Fla. 2008) ("judicial comments revealing a determination to rule a particular way prior to hearing any evidence or argument have been found to be sufficient grounds for disqualification."). Because the trial court clearly stated its determination to impose the given sentence in the absence of argument, we vacate Appellant's sentence based on the violation of probation, and remand for resentencing before a different judge. The successor sentencing judge may rely on the record of Appellant's criminal trial. See Davis v. State , 227 So.3d 137, 140 (Fla. 4th DCA 2017) (reversing and remanding where the successor judge "intentionally decided it was not going to evaluate the same evidence submitted at trial and the initial sentencing hearing, together with the new evidence").

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

Bilbrey and Jay, JJ., concur.

      The first amended revocation order declared that Appellant had violated more than one condition of his probation. The second amended order stated that Appellant was found guilty only of violating Condition Five, for committing the crimes described in the amended affidavit; he was exonerated as to the other alleged probation violations.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    ROOSEVELT CARROLL, JR., Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D17-2535
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 23, 2019
    Roosevelt Carroll, Jr., pro se, Petitioner.
    Kenneth Steely, General Counsel, Department of Corrections; Ashley B. Moody, Attorney General, and Amanda Stokes, Assistant Attorney General, Tallahassee, for Respondent.
    ON MOTION FOR REHEARING AND REQUEST FOR A WRITTEN OPINION
   Per Curiam.

We deny Petitioner's motion for rehearing, grant his request for a written opinion, and withdraw our opinion issued on December 12, 2018, and substitute the following opinion in its place:

DISMISSED . See Dickerson v. State , 204 So.3d 544 (Fla. 5th DCA 2016) ; Brown v. State , 197 So.3d 69 (Fla. 2d DCA 2016).

Osterhaus, Winokur, and M.K. Thomas, JJ., concur.


author: PER CURIAM.

text:
    Wilfred GARRARD, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-1301
    District Court of Appeal of Florida, Second District.
    Opinion filed February 27, 2019
    Wilfred Garrard, pro se.
   PER CURIAM.

Affirmed without prejudice to any right appellant may have to file an amended motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a) and to attach a certified copy of the transcript of appellant's plea and sentencing hearing that establishes the existence of an error in appellant's written judgment and sentence. See Nielson v. State, 984 So.2d 587, 588-89 (Fla. 2d DCA 2008) ; see also Williams v. State, 957 So.2d 600, 604 (Fla. 2007).

NORTHCUTT, VILLANTI, and ROTHSTEIN-YOUAKIM, JJ., Concur.


text:
    James MCKAY, Petitioner, v. Mark S. INCH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D19-0025
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 29, 2019
    James McKay, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee for Respondent.
   Per Curiam.

DISMISSED . See Baker v. State , 878 So.2d 1236 (Fla. 2004).

Roberts, Wetherell, and Makar, JJ., concur.


text:
    Elijah L. UNION, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-4353
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied April 18, 2019
    Elijah L. Union, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

DISMISSED . See Fla. R. App. P. 9.141(d)(6)(C).

Lewis, Winsor, and M.K. Thomas, JJ., concur.


author: VILLANTI, Judge.

text:
    Tojarre J. NELSON, a/k/a Torjarry Nelson, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-3650
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019 Rehearing Denied April 03, 2019
    Howard L. Dimmig, II, Public Defender, and Joanna Beth Conner, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Tojarre Nelson appeals his convictions and sentences for carrying a concealed firearm, possession of cocaine, and possession of marijuana, claiming the trial court committed legal error in denying his dispositive motion to suppress. Because law enforcement's search of Nelson was predicated on a violation of a municipal ordinance banning his presence in a city park after hours, for which the power to conduct a full custodial arrest does not apply, the trial court erred in denying his motion to suppress. We therefore reverse these three convictions and remand for further proceedings.

At 12:33 a.m., two officers drove by a city park and saw Nelson sitting at a picnic table. The officers entered the park from opposite directions and travelled by foot toward Nelson. The officers based their approach upon Nelson's presence in the park after the posted closing time of 11:00 p.m. When Nelson saw the officers, he told them he was in the process of leaving and started walking toward his bicycle. One of the officers started issuing commands to stop and noticed Nelson's hand go toward his waistband area as he reached for his bicycle. The officer drew his weapon and then grabbed the handle of Nelson's bicycle to stop him from leaving. The second officer did not see Nelson make any furtive motions. Both officers testified that Nelson was immediately placed under arrest for violating section 21-40 of the St. Petersburg Code of Ordinances. The officers conducted a search incident to the arrest and discovered the contraband at issue. Based on these facts, defense counsel filed a motion to suppress; however, the trial court denied the motion because the "the police had a right to be where they were."

While the above observation by the trial court was factually correct, it was not a legal basis to deny the motion to suppress. "[W]hen a person is charged with violating a municipal ordinance regulating conduct that is noncriminal in nature, ... [a] full custodial arrest ... is unreasonable and a violation of the Fourth Amendment and article I, section 12 of the Florida Constitution." Thomas v. State, 614 So.2d 468, 471 (Fla. 1993). Here, the search exceeded the scope of a permissible search based upon a noncriminal ordinance violation. See Cuva v. State, 687 So.2d 274, 276 (Fla. 5th DCA 1997) (holding that a "violation of a municipal ordinance is neither a 'crime' nor a 'noncriminal violation' " (quoting Thomas, 614 So.2d at 472 ) ).

This case is eerily similar to C.D. v. State, 82 So.3d 1037 (Fla. 4th DCA 2011). In C.D., two officers saw C.D. and another boy walking across a park one evening and stopped them as they were about to exit the park. Id. at 1038. As the officers were explaining that the park hours were from "dawn to dusk," C.D. walked away and failed to follow the officer's command to come back. Id. at 1038-39. The officer arrested C.D. for violating the ordinance, and, because C.D. made "moves toward his pocket," the officer searched him incident to the arrest and found marijuana. Id. at 1039. The trial court's denial of the motion to suppress was predicated on its finding that the furtive movements necessitated a search to insure the officers' safety. Id. The district court reversed, holding that when an officer stops a person for a noncriminal infraction, a furtive movement-without a bulge or an indication of a weapon-"is insufficient to warrant a pat-down or any protective search." Id. at 1039-40 (relying on State v. Barnes, 979 So.2d 991, 993 (Fla. 4th DCA 2008), which held that an officer "does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps his hands in or near his pockets");

see also Brown v. State, 224 So.3d 806, 810 (Fla. 2d DCA 2017) ("[F]or a weapons pat-down search to be valid, an officer must identify objective facts indicating that the person detained is armed and dangerous." (quoting Dawson v. State, 58 So.3d 419, 422 (Fla. 2d DCA 2011) ) ).

Although the State argues that section 901.15(1), Florida Statutes (2016), permits an officer to arrest a person for violating a municipal ordinance, the supreme court has rejected this argument. See Thomas, 614 So.2d at 471. In Thomas, the supreme court held that an "arrest" under section 901.15(1) does not mean a full custodial arrest and search incident thereto, but rather, that the officers may detain an individual only "for the limited purpose of issuing a ticket, summons, or notice to appear." Id. at 471 ; see also C.D., 82 So.3d at 1039.

Additionally, the State argues that the motion to suppress was properly denied because the officer reasonably relied in good faith on a municipal ordinance to justify the arrest. However, this court has previously admonished law enforcement officers for continuing to conduct full custodial arrests for bicycle infractions after such action was found unlawful in Thomas sixteen years prior. See L.B.B. v. State, 998 So.2d 1217, 1219 (Fla. 2d DCA 2009) (reiterating the principle that "police officers are charged with knowledge of the law" (quoting Frank v. State, 912 So.2d 329, 331 (Fla. 5th DCA 2005) ) ). As it stands today, Thomas was decided twenty-six years ago and C.D., which is directly relevant to the park hours ordinance in this case, was decided eight years ago. Thus, the State cannot argue that the officers acted in good faith when they arrested Nelson for violating a park hours ordinance.

Because the officers were not authorized to conduct a full custodial detention and search, the officers violated Nelson's Fourth Amendment right to be free from an unreasonable search and seizure. We thus reverse Nelson's convictions and sentences for carrying a concealed firearm, possession of cocaine, and possession of marijuana. We affirm his two remaining convictions and sentences. Because Nelson's plea was negotiated to a concurrent term as to all five charges, we remand with instructions to allow Nelson, if he chooses, the opportunity to withdraw his plea on the two remaining charges. See Brown, 224 So.3d at 811.

Affirmed in part, reversed in part, and remanded.

SILBERMAN and BLACK, JJ., Concur.

      Mr. Nelson pleaded guilty but reserved his right to appeal the dispositive motion to suppress. He does not appeal his two other convictions and sentences for resisting arrest with violence and battery on a law enforcement officer.


author: Winsor, J. Wolf, J., concurring in part and dissenting in part.

text:
    MARINE MAX, INC., and Seabright Insurance Company, et al., Appellants, v. Charles BLAIR, Appellee.
    No. 1D17-3926
    District Court of Appeal of Florida, First District.
    March 7, 2019 Rehearing Denied April 18, 2019
    Robert B. Griffis of Jones, Hurley, and Hand, P.A., Orlando, for Appellants.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Ft. Lauderdale, and Eric M. Christiansen of Lancaster & Eure, P.A., Sarasota, for Appellee.
   Winsor, J.

This case requires us to consider what happens when a workers' compensation claimant seeks care from a doctor who-as a condition of continued treatment-demands compensation above and beyond the statutory limits. Marine Max, Inc., and its workers' compensation insurer (collectively, "Marine Max"), appeal an order directing them to "authorize and pay" a doctor who not only demanded compensation beyond limits the Legislature imposed but also demanded those payments in advance. We affirm in part and reverse in part.

Charles Blair was injured when he fell off a ladder in 2010. Marine Max treated the accident as compensable, and it authorized Dr. Jonathan Yunis to provide treatment.

Yunis operated on Blair several times between 2010 and 2014, when Yunis practiced with an outfit called Vascular Associates. Some of Yunis's services during this time were billed at statutory rates, and some were billed at higher rates. There were apparently no payment disputes.

In 2015, Yunis left Vascular Associates to start his own practice, the "Center for Hernia Repair." Later, in 2017, Blair sought additional treatment, still relating to the original accident. He filed a new petition for benefits, asking to return to Yunis for a new round of treatment. Unaware of Yunis's departure from Vascular Associates, the insurance adjuster told Blair he was authorizing follow-up treatment with Yunis. The adjuster then contacted Vascular Associates to set up an appointment. That is when the adjuster learned that Yunis no longer worked there. And when the adjuster contacted Yunis's new practice-still trying to make an appointment for Blair-he learned that the new practice required payments beyond the statutory rates. He also learned that the new practice required those above-statutory-rate amounts paid in advance.

Marine Max found the new terms unacceptable. There is no indication that Marine Max tried to negotiate with Yunis's new practice or that negotiations could have been successful. Instead, Marine Max sought a doctor willing to work on acceptable payment terms. In its formal response to Blair's petition, Marine Max stated that because Yunis would not accept statutory rates, it was authorizing treatment with another physician. The adjuster then scheduled an appointment for Blair to see that other physician, but on counsel's advice, Blair refused to go.

The matter then went before the judge of compensation claims. Blair argued that he had an existing patient-physician relationship with Yunis and that Marine Max could not interfere with that relationship by "deauthorizing" Yunis without statutory authority. See generally City of Bartow v. Brewer , 896 So.2d 931, 933 (Fla. 1st DCA 2005). And according to Blair, the statute permits deauthorization only if the claimant is not making appropriate progress in recuperation, see § 440.13(2)(d), Fla. Stat., or if the provider was engaged in a pattern or practice of overutilization, see § 440.13(8)(b) 2. A provider's outright refusal to accept the fee schedule, Blair continues, does not justify deauthorization.

Marine Max responded that payments beyond statutory rates are allowed only if the employer agrees to pay the higher amount and the provider "specifically agrees in writing to follow identified procedures aimed at providing quality medical care to injured workers at reasonable costs." See § 440.13(13)(b), Fla. Stat. According to Marine Max, because it had no agreement with Yunis, it was left with only one real option: to provide medically necessary care-as section 440.13(2)(a) required-by authorizing someone else. Cf. Leon v. CSB Services, Inc. , 219 So.3d 166, 167 (Fla. 1st DCA 2017) (holding that authorization of new doctor is required when previous doctor "is no longer a viable option").

The JCC agreed with Blair and held that Marine Max's actions were "tantamount to a unilateral deauthorization." See generally Brewer , 896 So.2d at 933. It noted that "[a]ny dispute as to the applicability of the charges is within the exclusive preview of [the Department of Financial Services]" and that Marine Max "may still dispute the charges even if prepayment is required and made." The JCC then ordered Marine Max to "continue to authorize and pay Dr. Yunis." That led to this appeal.

First, Marine Max correctly argues that the JCC had no authority to order it to pay Yunis. Blair acknowledges as much; his counsel noted at oral argument that "the judge probably made a minor mistake" by including "the portion of the order that says 'pay.' " See also Ans. Br. at 12 ("[T]he JCC does not have the statutory authority to force the E/C to pay for medical services in excess of fee schedule."). Reimbursement is handled under section 440.13(7), Florida Statutes, and all reimbursement disputes fall under the exclusive jurisdiction of DFS. See § 440.13(11)(c), Fla. Stat. (stating that DFS "has exclusive jurisdiction to decide any matters concerning reimbursement"); see also Cook v. Palm Beach Cty. Sch. Bd. , 51 So.3d 619, 620 (Fla. 1st DCA 2011) (holding JCCs lack jurisdiction over payment disputes); Orange County v. Willis , 996 So.2d 870, 871 (Fla. 1st DCA 2008) (holding claimant "did not have standing to enforce payment of the doctor's bill"). Moreover, even if the JCC could resolve payment disputes, it could not compel prepayment, which chapter 440 does not contemplate for medical treatment. The relevant statutes and rules use the term "reimbursement," see, e.g. , § 440.13, Fla. Stat. (using the words "reimburse" and "reimbursement" forty-seven times); Fla. Admin. Code R. 69L-7.020 ("A carrier will reimburse a health care provider either the [statutory fee schedule] or a mutually agreed upon contract price."), which is distinct from advance payment. Although the dissent would affirm the order in its entirety (including the prepayment requirement), we struggle to identify any basis on which we could do so. We must reverse the order on appeal to the extent it compels payment.

We still must determine, though, whether the JCC was correct to order Yunis's continued authorization. We conclude that it was. The only basis Marine Max offered to justify its doctor substitution was Yunis's insistence on particular financial terms. But a JCC's award of medically necessary care "is to be made without regard to the possibility that a payment dispute might arise between the employer and the provider." Tiznado v. Orlando Reg'l Healthcare Sys. , 773 So.2d 584, 585-86 (Fla. 1st DCA 2000). The JCC was therefore required to determine whether Yunis's continued authorization was "reasonable" and "medically necessary," see § 440.13(2)(a), Fla. Stat., without considering the possibility (or even probability) that Yunis and Marine Max would never reach agreement on terms. The JCC found that Blair had established a satisfactory patient-physician relationship with Yunis, and that Marine Max had "not established a valid reason for deauthorization of Dr. Yunis under these circumstances." These conclusions were supported by competent substantial evidence. We therefore must affirm the order to the extent it requires Yunis's continued authorization.

Marine Max contends it is illogical to require continued authorization of a doctor unwilling to treat the claimant on statutory terms. That point is not without force, but the law limits the bases on which an employer may officially deauthorize a previously authorized physician. Ordinarily a claimant unable to receive care from the authorized physician (because of payment disputes or otherwise) might seek a new authorized physician, cf. , e.g. , Leon , 219 So.3d at 167 (noting that claimant appealed denial of new authorized treater after old authorized treater was "henceforth unwilling to treat" claimant), but Blair has resisted that approach, and it is not up to us to weigh the usefulness of his demand for Yunis's continued authorization.

Nevertheless, it may well turn out that the continued authorization does not help Blair, assuming Yunis remains unwilling to provide treatment within the statutory compensation limits and Marine Max remains unwilling to pay beyond the statutory compensation limits (or to pay in advance). Authorization cannot help a claimant who remains untreated, and it should go without saying that neither Marine Max nor any judge of compensation claims can force Yunis to provide treatment he does not wish to provide. Marine Max can (and must, for now) continue to "authorize" Yunis, but all authorization does is allow Yunis to demand compensation if he chooses to treat Blair. See § 440.13(3)(a), Fla. Stat. ("As a condition to eligibility for payment under this chapter, a health care provider who renders services must receive authorization from the carrier before providing treatment."). If Yunis elects to provide treatment, his authorization will permit him to seek compensation under Chapter 440. See id. § 440.13(13)(a) (noting that authorized providers "have recourse against the employer or carrier for payment for services rendered in accordance with this chapter"). If he and Marine Max reach a different agreement, he can operate under that agreement. See id. § 440.13(13)(b). But if he remains unwilling to proceed under the system the Legislature created (with its attendant limitations on compensation, see, e.g. , id. ), no employer can force him to do otherwise. On the other hand, if Blair concludes that any ongoing refusal to treat means Yunis "is no longer a viable option," Blair can seek authorization of a replacement physician, see Leon , 219 So.3d at 167 -a remedy Marine Max has already pursued for Blair. Cf. also Lewis v. Town & Country Auto Body Shop , 447 So.2d 403, 406 (Fla. 1st DCA 1984) ("[I]f the authorized physician declines to see him further, claimant is entitled to have another physician authorized to provide such medical care.").

We have not, of course, overlooked this court's cases recognizing the importance of the physician-claimant relationship. See , e.g. , Stuckey v. Eagle Pest Control Co., Inc. , 531 So.2d 350, 351 (Fla. 1st DCA 1988) ; Cal Kovens Constr. v. Lott , 473 So.2d 249 (Fla. 1st DCA 1985). But none of those cases holds that an employer must prepay above-schedule rates to avoid a potential disruption of that relationship. Although the dissent never explicitly says so, its contrary rule must be that employers have no choice but to prepay above-scheduled rates providers demand, at least until a judge thinks the providers' demands have gone too far. But the Legislature-not DCA judges-decides the permissible range of rates.

And the Legislature has said that "[f]ees charged for remedial treatment, care, and attendance, ... may not exceed the applicable fee schedules adopted under this chapter and department rule." § 440.13(13)(b), Fla. Stat. We therefore must reverse the order to the extent it commands Marine Max to pay fees that do "exceed the applicable fee schedule." Id.

AFFIRMED in part and REVERSED in part.

Jay, J., concurs; Wolf, J., concurs in part and dissents in part with opinion.

Wolf, J., concurring in part and dissenting in part.

I concur in the portion of the majority opinion that requires continued authorization for Dr. Yunis to treat the Claimant because the Employer/Carrier (E/C) failed to prove a valid reason for not continuing to provide treatment with the authorized doctor. I dissent from the portion of the opinion that determines even though Dr. Yunis is authorized, the Carrier is not necessarily required to provide the treatment and the E/C may yet again designate an alternative physician.

The majority essentially frames the issue in this case as, "what happens when a workers' compensation claimant demands that an employer 'authorize' a doctor who is unwilling to provide treatment for rates within statutory limits." The issue in this case, however, is whether an E/C should be required to continue medically necessary treatment with an authorized physician when the carrier has failed to prove any change of circumstance that would justify a de facto deauthorization of the treating physician.

The majority's statement of the issue switches the focus of the inquiry to an issue that we should not address in this case.

The change in focus leads the majority to reach the remarkable conclusion that the Claimant won the right to have a designation of "authorized" placed by Dr. Yunis's name, even though the Claimant still cannot receive treatment from the physician because the JCC cannot require the Carrier to pay the physician. This renders the opinion meaningless. Under the facts of this case, I would hold that the Carrier is required to continue to provide treatment with Dr. Yunis, regardless of Dr. Yunis' willingness to provide treatment for rates within the statutory limits because that issue is not properly before us.

Facts

In addition to the facts stated in the majority opinion, I believe the following facts are significant and dispositive of this case:

1. The Carrier initially authorized Dr. Yunis in 2010.
2. Claimant received treatment from Dr. Yunis from 2010 through 2014.
3. The fee agreement between the E/C and Dr. Yunis was introduced into evidence and indicated that the E/C agreed to pay Dr. Yunis in excess of the fee schedule for services including non-operative regular visits.
4. Dr. Yunis testified that he has never accepted the fee schedule.
5. No evidence was introduced concerning what fees Dr. Yunis was presently seeking. Thus, there is no proof that Dr. Yunis was seeking fees that were any higher than what the E/C previously paid.
6. In fact, Dr. Yunis's office manager indicated that she offered to provide the doctor's fee schedule for the E/C's review, but there is no indication that her offer was accepted.
7. In addition, when Dr. Yunis asked the Carrier during his deposition if it wanted him to accept the Carrier's fee schedule, the Carrier said all we want to know is whether you take the fee schedule or not.
8. Between 2014 and 2017, a new servicing agent began representing the E/C.
9. The JCC found there has been no negotiation by the Carrier regarding the fees, and "[t]he only reason for not deviating from the fee schedule at this point is because there is a new third party administrator and owner of Sea Bright, and they don't want to anymore ." (emphasis added). This finding is supported by the evidence adduced in this case.
10. The E/C's only asserted defense to deauthorization was, "Dr. Yunis is no longer accepting workers' compensation fee schedule," a defense that is belied by the uncontradicted evidence that Dr. Yunis has never taken the fee schedule.
11. The E/C did not raise the issue of prepayment as a defense, and the statute does not specifically prohibit it.
12. There is no indication in the record that the Carrier ever attempted to negotiate with the doctor.
13. Claimant made a request for medically necessary treatment at the beginning of 2017 and has not to this date received treatment with his authorized doctor. The only doctor authorized by the Carrier was over an hour and a half drive away from Claimant's home and work.

Import of Existing Statutory Law and Case Law

The majority opinion fails to recognize the significance of over 30 years of continuous decisions from this court recognizing the importance of providing a continued course of treatment once a satisfactory patient-physician relationship is established.

As early as 1985, in Cal Kovens Construction v. Lott , 473 So.2d 249 (Fla. 1st DCA 1985), this court recognized the importance of the physician-claimant relationship and emphasized the burden was on the carrier to show good cause sufficient to require a change in ongoing medical treatment.

In Stuckey v. Eagle Pest Control Co., Inc. , 531 So.2d 350, 351 (Fla. 1st DCA 1988), we stated, "[O]nce an injured employee establishes a satisfactory physician-patient relationship with an authorized physician, the E/C may not deauthorize that physician without the employee's prior agreement or without approval of a [JCC] .... In this situation the focus should be on the question of why an authorized physician should no longer provide care, thereby severing an established physician-patient relationship." Stuckey specifically stated that "the E/C must then show good cause for such action." Id. (emphasis added). Thus, the E/C bears the burden of demonstrating good cause to sever an existing patient relationship. The opinion fails to recognize that under statutory law and case law, the E/C has a significant burden to demonstrate a change of facts that provide a legal reason for severing the physician-patient relationship.

While section 440.13, Florida Statutes, has been amended so that it no longer requires prior approval from the JCC to deauthorize a doctor, the underlying premise that the E/C cannot deauthorize a physician without proving that doing so is in the best interest of the claimant is still controlling. Terners of Miami Corp. v. Busot , 764 So.2d 701 (Fla. 1st DCA 2000) ; see also State Attorney v. Johnson , 770 So.2d 187 (Fla. 1st DCA 2000) (recognizing statute did not change the substantive test for deauthorization). In fact, we recently recognized the failure to continue to provide treatment to the claimant with a previously authorized doctor constituted a de facto "deauthorization," and the failure of the carrier to prove a statutory reason for deauthorization meant the E/C was required to continue to provide the sought-after treatment. See Hernandez v. Hialeah Solid Waste Dep't , 238 So.3d 418 (Fla. 1st DCA 2018) ; see also Williams v. Triple J Enters. , 650 So.2d 1114 (Fla. 1st DCA 1995).

The present statutory framework also recognizes the importance of the physician-patient relationship by only allowing the employer "to transfer the care of an injured employee from the attending health care provider if an independent medical examination determines that the employee is not making appropriate progress in recuperation." § 440.13(2)(d), Fla. Stat. This statutory burden was unmet by the carrier in Hernandez , and it was unmet by the E/C here.

Sufficiency of the Evidence and Issue to be Decided

While the majority indicates that a doctor's failure to accept the fee schedule may be considered a refusal to treat, thus justifying deauthorization, it is unnecessary for us to reach that specific issue in this case. Here, the E/C failed to prove any change of circumstance, including any increased fee requirement, that might justify a de facto deauthorization of the doctor.

The written agreement for treatment in this case establishes that the previous third party administrator had been paying Dr. Yunis in excess of the fee schedule. There was not one shred of evidence presented that his present fee schedule was one penny more than what had previously been paid. In fact, the evidence demonstrates that the Carrier did not accept a copy of the doctor's fee schedule when the doctor offered it and made no effort to negotiate with the doctor to preserve the physician-claimant relationship. The JCC specifically found the only reason for the E/C's deauthorization was that the new third party administrator no longer wished to deviate from the fee schedule. This is not a valid reason for de facto deauthorization. Thus, it is unnecessary for us to reach the issue as it is framed by the majority.

What is the Guidance on Remand?

As previously stated, the majority opinion finds that the doctor is authorized but the Carrier does not have to pay him.

Based on the majority's decision, the JCC, the Claimant, and the E/C are left guessing at what the next step is in this case. No practical relief has been granted to the Claimant.

If the Claimant wishes to treat with Dr. Yunis, his authorized physician, and the E/C refuses to set up an appointment with the authorized doctor, the Claimant is back to square one. He cannot see his treating physician because the E/C will not set up an appointment. The E/C is left guessing whether they need to set up an appointment with Dr. Yunis or whether they can continue to deny treatment (because they are not required to pay) and potentially subject themselves to a new petition for benefits with associated penalties and fees.

In addition, the majority implies that the E/C is free to take the same action it previously took, refusing to authorize a new doctor, because Dr. Yunis failed to take the fee schedule. The E/C has already lost on this issue. The doctrines of law of the case and res judicata apply to workers' compensation cases. Boynton Landscape v. Dickinson , 752 So.2d 1236 (Fla. 1st DCA 2000) ; S. Bell Tel. & Tel. Co. v. Blackstock , 419 So.2d 360 (Fla. 1st DCA 1982). Absent new evidence that could not have been discovered prior to the last hearing, the E/C should not be allowed to take the same actions that the JCC already found to be unjustified.

The Claimant should not be forced to accept the E/C's refusal to pay Dr. Yunis where a JCC heard all the evidence and found there was no valid reason for de facto deauthorization and that such action was not in the best interest of the Claimant. The JCC specifically stated:

24. The only reason for [the E/C] not deviating from the fee schedule at this point is because there is a new third party administrator ..., and they don't want to anymore.

The JCC additionally found that it was in the best interest of the Claimant to continue to see Dr. Yunis. In Factual Finding # 3, the JCC found:

3. Claimant testified that he was authorized to treat with Dr. Yunis for his hernia condition and Dr. Yunis has performed three surgeries for his condition. Claimant tried to get a follow up appointment in the past year with Dr. Yunis and could not. He is concerned about his condition. Claimant understands that E/C has offered a doctor in St. Petersburg, Florida but he does not agree with a transfer to that doctor. He was told not to attend that appointment. Claimant said he does not receive pay when he takes off work and he lives in Sarasota, Florida where Dr. Yunis' office is located. He is comfortable with Dr. Yunis and does not want a new doctor.

The Claimant should be free to enforce the JCC's determination that Dr. Yunis is still authorized. Any assertion in the majority opinion indicating otherwise is mere dicta.

Necessary Medical Care Should be Provided Notwithstanding Potential Disputes Regarding Cost of Treatment

The JCC and the majority each address the potential remedies for the E/C if they still have a problem with Dr. Yunis's fee schedule. They reach opposite conclusions: the JCC found that the E/C may pursue administrative remedies, and the majority indicated that the statute does not contemplate a remedy for the E/C under these circumstances. This question of a fee dispute is not properly before us, and any discussion concerning potential outcomes in a future dispute should not have been included in either the JCC's order or the majority opinion. As previously stated, this case is only about the ability to get continued treatment with the authorized doctor. The E/C-physician dispute is an inappropriate consideration in determining whether the Claimant is entitled to continued medical treatment. If there is a lack of remedy for the E/C, that should be addressed by the Legislature, not this court.

In Tiznado v. Orlando Regional Healthcare System , 773 So.2d 584, 586 (Fla. 1st DCA 2000), we specifically determined that where the care is medically necessary, "medical care should have been awarded" notwithstanding a potential payment dispute that might arise.

In this case, the JCC was simply requiring the E/C to pay for the care that the Claimant was entitled to receive. Such a decision is consistent with our case law. See Williams , 650 So.2d 1114 (requiring payment to Claimant for necessary medications notwithstanding potential utilization review).

The E/C's order to pay for the treatment did nothing more than require provision of treatment. The JCC did not order a specific amount be paid. In addition, we are not looking at reimbursement or overutilization. The JCC simply addressed the issue in this case, continued treatment with an authorized physician. I would affirm this order in its totality.

      Yunis did at one point testify that he would treat Blair for free "[i]f he was now abandoned on the street with no insurance and nobody to pay for anything," but Blair's situation never came to that. Yunis did not treat Blair (for free or otherwise), which is why this litigation continues.

      The JCC was also wrong in assuming Marine Max could prepay the demanded amounts and later seek relief through administrative channels. The administrative dispute process begins with an employer's refusing to pay a provider's bill (or refusing to pay it in full), called "disallowance" (or "adjustment"). See § 440.13(6), (8), Fla. Stat. But if Marine Max paid in advance as a condition of service, Yunis would have no occasion to submit a bill afterward. Moreover, section 440.13(7)(a) -which previously allowed both employers and providers to initiate reimbursement disputes at DFS-changed in 2016. It now allows only health care providers to initiate those proceedings. Ch. 16-56, § 4, at 496, Laws of Fla. So there is no entry point for an employer that prepaid too much.

      To the extent the dissent's conclusion relies on some estoppel concept, we note that estoppel is an affirmative defense that must be asserted below, see , e.g. , Teco Energy, Inc. v. Williams , 234 So.3d 816, 823 (Fla. 1st DCA 2017) (noting that estoppel is an affirmative defense that "must be plead carefully or forever waived"), reh'g denied (Feb. 5, 2018)-and that Blair did not plead estoppel below, made no estoppel argument below, and does not argue estoppel here. Indeed, as Blair acknowledges in his brief, "[t]he requirements of estoppel are not relevant to the outcome of this case." Ans. Br. at 32.

      While the adjuster testified that the E/C had previously paid Dr. Yunis for some services in accordance with the fee schedule, the specific services were not identified and this testimony was obviously not accepted by the fact finder, the JCC. In addition, there is no evidence that Dr. Yunis would not provide these services for the same fee that he previously had been charging.

      It is up to a later panel of this court or the Legislature to address situations where there is an initial refusal to treat within the fee schedule or where there is evidence that a doctor has raised his or her fees over and above the amount previously agreed to between the E/C and the doctor. That is not the case here.

      The majority appears to be concerned that the E/C has no remedy. While I am unsure whether I agree with this analysis, if there is a statutory gap that fails to provide the E/C a proper remedy, that is for the Legislature to fix and not a valid reason for this court to disrupt the existing physician-claimant relationship. In addition, in light of the findings concerning the Carrier's failure to negotiate, it is unclear to me that any claim by the E/C was not waived or is indeed premature.

      If Dr. Yunis attempts to raise his fees in the future to an amount greater than the fees he is presently willing to accept, this would constitute new circumstances that may allow the E/C to properly raise the issue as framed by the majority. As previously stated, it is the failure of proof by the E/C that precludes us from addressing the issue in this case.


text:
    Gregory ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D18-933
    District Court of Appeal of Florida, First District.
    March 13, 2019 Rehearing Denied April 25, 2019
    Andy Thomas, Public Defender, and Justin F. Karpf, Assistant Public Defender, Tallahassee, for Appellant.
    Ashley B. Moody, Attorney General, and Tabitha Herrera, Assistant Attorney General, Tallahassee, for Appellee.
   Per Curiam.

At the age of seventeen, Gregory Robinson shot a former classmate in the head. The former classmate died, the State charged Robinson with second-degree murder, and Robinson pleaded guilty. The court sentenced Robinson to life in prison with judicial review after twenty-five years. Robinson now argues that the sentence was illegal.

To the extent Robinson argues the trial court was obligated to make specific findings as to each factor under section 921.1401-Florida's juvenile life-sentencing statute-his argument is foreclosed by our recent decision in Dortch v. State , 266 So.3d 1240, 2019 WL 639221 (Fla. 1st DCA Feb. 15th, 2019). In Dortch , we held that judges imposing life sentences need not make specific findings for each factor listed in section 921.1401. Instead, courts must only "find on the record that they have (1) 'reviewed' and (2) 'considered' all relevant factors prior to imposing a life sentence." Id. ; see also Fla. R. Crim. P. 3.781(c). In Robinson's case, the court clearly reviewed and considered the relevant factors, including the likelihood of Robinson's rehabilitation. See § 921.1401(2)(j). We also reject Robinson's argument that-findings aside-the specifics of his case did not warrant a life sentence.

AFFIRMED .

Roberts, Kelsey, and Winsor, JJ., concur.

      We also reject Robinson's contention that the court failed to hold a competency hearing, a contention the record refutes.


author: KHOUZAM, Judge.

text:
    Travis Montez EDWARDS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D18-807
    District Court of Appeal of Florida, Second District.
    Opinion filed March 15, 2019
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Ashley Moody, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa (withdrew after briefing); and Cynthia Richards, Assistant Attorney General, Tampa (substituted as counsel of record), for Appellee.
   KHOUZAM, Judge.

Travis Edwards appeals his dual convictions under section 893.13(1)(a)(1), Florida Statutes (2016), for selling heroin and fentanyl, arguing that selling a mixture of the two only counts as one offense for double jeopardy purposes. Because no double jeopardy violation occurred, we affirm.

We note at the outset that Edwards entered an open plea of nolo contendere to both charges without reserving his right to appeal on double jeopardy grounds. However, where a plea "is a general plea," a double jeopardy violation "is apparent from the record," and "there is nothing in the record to indicate a waiver" of the violation, the issue may be addressed on appeal. Novaton v. State, 634 So.2d 607, 609 (Fla. 1994). The State argues that Edwards implicitly waived double jeopardy because he raised the issue before the trial court prior to entering his plea. However, ''an open plea 'does not amount to a waiver of the right to appeal where there is no express waiver of the right to appeal a possible double jeopardy violation.' " Holubek v. State, 173 So.3d 1114, 1116 (Fla. 5th DCA 2015) (quoting Latos v. State, 39 So.3d 511, 515 (Fla. 4th DCA 2010) ); see also Godfrey v. State, 947 So.2d 565, 567 (Fla. 1st DCA 2006) ("Because appellant in the instant case entered a non-bargained for, 'straight up' plea, without expressly waiving his right to a later appeal premised on a double jeopardy issue, his plea did not amount to a waiver.").

Edwards sold heroin to an undercover officer of the Manatee County Sheriff's Office during a controlled buy on December 15, 2016. Chemical testing revealed that the heroin was mixed with fentanyl, another controlled substance. Edwards was thereafter charged with two counts of sale or delivery of a controlled substance under section 893.13(1)(a)(1), one for sale of heroin and the other for sale of fentanyl. Edwards moved for dismissal of either one of the two counts on double jeopardy grounds, but the motion was denied.

In double jeopardy cases, the ultimate question is what punishments the legislature intended for a criminal act. See Albernaz v. U.S., 450 U.S. 333, 344, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) ("[T]he question of what punishments are constitutionally permissible is not different from the question of what punishments the Legislative Branch intended to be imposed."). "[T]here is no constitutional prohibition against multiple punishments for different offenses arising out of the same criminal transaction as long as the [l]egislature intends to authorize separate punishments." Valdes v. State, 3 So.3d 1067, 1069 (Fla. 2009).

To determine legislative intent in this case, both parties rely on section 775.021(4)(a), Florida Statutes (2016), which authorizes multiple punishments for a single criminal act if that act constitutes separate criminal offenses. Under this statute, criminal "offenses are separate if each offense requires proof of an element that the other does not." Id. This statute codifies the "different elements" test, which states that "where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of a fact which the other does not." Blockburger v. United States, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

This test does not apply in the instant case because Edwards' sale of mixed drugs involves only one act and only one statute. See McKnight v. State, 906 So.2d 368, 371 (Fla. 5th DCA 2005) (holding that the "different elements" test was inapplicable where defendant was convicted twice for killing two people in one accident in violation of one vehicular homicide statute). Rather, this court should "apply the 'allowable unit of prosecution' standard to determine whether a double jeopardy violation has occurred." Id. (citing Sanabria v. U.S., 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978) ; Bautista v. State, 863 So.2d 1180 (Fla. 2003) ). By this standard, the legislature identifies the aspects of criminal activity that it intends to punish as separate, discrete violations of a single statute. See id. Florida courts have frequently used the "unit of prosecution" analysis to determine legislative intent, often finding multiple violations of a single statute arising from a single criminal act. See Bautista, 863 So.2d at 1185 (finding that the legislature intended two convictions for two deaths resulting from a single collision in violation of a single DUI statute); Grappin v. State, 450 So.2d 480, 483 (Fla. 1984) (finding that taking five firearms from the same place at the same time in violation of a single firearm theft statute could result in five convictions); McKnight, 906 So.2d at 374 (holding that the unit of prosecution of a vehicular homicide statute is each victim).

To determine the applicable "unit of prosecution," courts use the rules of statutory construction, applying the rule of lenity if the intended unit is ambiguous or unclear. McKnight, 906 So.2d at 371. "It is a common sense approach, guided by the statutory language, context, similar enactments, and case law." Guetzloe v. State, 980 So.2d 1145, 1147 (Fla. 5th DCA 2008). Since there is little case law in Florida addressing double jeopardy in section 893.13(1)(a)(1), or mixed illicit drugs in general, statutory language and context are the more useful guides in Edwards' case.

When evaluating statutory language, "the a/any test is a valid linguistic tool that is helpful in establishing the [l]egislature's intended unit of prosecution." Bautista, 863 So.2d at 1188. "When the article 'a' is used by the [l]egislature in the text of the statute, the intent of the [l]egislature is clear that each discrete act constitutes an allowable unit of prosecution." McKnight, 906 So.2d at 371. On the other hand, "[u]se of the adjective 'any' indicates an ambiguity that may require application of the rule of lenity." Id. at 372. Compare Grappin, 450 So.2d at 482 (holding that the term "a firearm" in a theft statute indicates one prosecution for each firearm stolen) with State v. Watts, 462 So.2d 813, 814 (Fla. 1985) (holding that the term "any firearm or weapon" in a prison contraband statute is ambiguous, applying the rule of lenity to allow only one prosecution for the possession of two prison-made knives), and Wallace v. State, 724 So.2d 1176, 1180 (Fla. 1998) (applying Grappin and Watts and holding that the term "any officer" in a violent arrest statute is ambiguous, allowing only one prosecution for violently resisting an arrest even if multiple police officers are involved).

Applying this test in Edwards' case, we look to the language of section 893.13(1)(a)(1), which reads as follows:

(1)(a) Except as authorized by this chapter and chapter 499, a person may not sell, manufacture, or deliver, or possess with intent to sell, manufacture, or deliver, a controlled substance. A person who violates this provision with respect to:
1. A controlled substance named or described in s. 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c) 4. commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) By using the word "a" before "controlled substance," the legislature indicated its intent to punish a defendant for the sale of each type of controlled substance listed in sections 893.03(1)(a), (1)(b), (1)(d), (2)(a), (2)(b), or (2)(c)(4). In other words, the sale of each substance constitutes a "discrete act" and "a separate violation of the statute." See McKnight, 906 So.2d at 371.

Moreover, an analysis of the statutory language and context also indicates that the legislature intended the sale of each type of substance to be a separate crime. When looking at the context to determine legislative intent, we "consider ... the purpose of the statute, the evil to be corrected, the legislative history, and the pertinent case law that has applied the statute or similar enactments." Id. (citing Bautista, 863 So.2d at 1186 ).

Section 893.13 is part of the Florida Comprehensive Drug Abuse Prevention and Control Act. § 893.01. Chapter 893 is meant "to comprehensively address drug abuse prevention and control in this state." § 893.015, Fla. Stat. (2017). The plain language of section 893.13(1)(a), Florida Statutes (2016) generally focuses on various controlled substances as "named or described" in various subsections of section 893.03. Under section 893.13(1)(a), the type of drug sold determines whether sale of a controlled substance is a second-degree felony, third-degree felony, or first-degree misdemeanor. Section 893.03, in turn, divides drugs into categories (schedules) based on different characteristics and varying risk of abuse. The entire focus of this statutory scheme is the meaningful differences between types of drugs and the appropriate punishment for crimes involving each type-the severity of the crime (and, therefore, the severity of the punishment) hinges on the type of drug sold. Considering this statutory scheme, it becomes clear that each type of drug sold is intended to be a "unit of prosecution" and can be punished separately. Indeed, to hold otherwise would lead to the absurd result that a mixture of two drugs within any subsection of 893.13(1) would constitute a single crime (with a single punishment) but a mixture of drugs from different subsections of 893.13(1) would constitute two crimes (with two punishments). The legislature did not intend such an absurd result. See Childers v. Cape Canaveral Hosp., Inc., 898 So.2d 973, 975 (Fla. 5th DCA 2005) ("Courts should not construe a statute so as to achieve an absurd result." (citing McKibben v. Mallory, 293 So.2d 48, 51 (Fla.1974) ) ).

Therefore, we affirm the judgment of the trial court and hold that each type of controlled substance prohibited by 893.13(1)(a)(1) constitutes an allowable unit of prosecution for that statute.

Affirmed.

LaROSE, C.J., and NORTHCUTT, J., Concur.


text:
    LAW OFFICE OF MICHAEL B. BREHNE, P.A., Appellant, v. PORTER LAW FIRM, LLC, Southern-Owners Insurance Company, and State Farm Mutual Automobile and Sheila Jackman, Appellees.
    Case Nos. 5D17-3850 5D17-3855
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 15, 2019 Rehearing Denied April 16, 2019
    Chad A. Barr, of Law Office of Chad A. Barr, P.A., Altamonte Springs, for Appellant.
    William J. McFarlane and Matthew T. Jones, of McFarlane Law, McFarlane Dolan & Prince, Coral Springs, for Appellee Southern-Owners Insurance Company.
    Warren B. Kwavnick, of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for Appellee State Farm Mutual Automobile.
    No Appearance for Other Appellees.
   PER CURIAM.

The Law Office of Michael B. Brehne, P.A. ("Law Office"), appeals a final summary judgment in favor of State Farm Mutual Automobile Insurance Company and Southern-Owners Insurance Company (collectively, "the Insurers"), finding that the Insurers had not impaired Law Office's charging lien on the settlement proceeds paid to its former client and her newly retained counsel. The Insurers concede that Law Office properly perfected its charging lien before they disbursed the settlement proceeds to the former client's newly retained counsel. They contend that because the charging lien attaches only to the disputed funds, which are held in the newly retained counsel's trust account, Law Office's lien has not been impaired. We agree and affirm the trial court's judgment.

An attorney's charging lien attaches to the tangible fruits of the services. Correa v. Christensen, 780 So.2d 220, 220 (Fla. 5th DCA 2001) (citing Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik, P.A. v. Baucom, 428 So.2d 1383 (Fla. 1983) ). Once a charging lien has been perfected, it is enforceable against "any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future." Hutchins v. Hutchins, 522 So.2d 547, 549 (Fla. 4th DCA 1988). Here, although the Insurers had notice of Law Office's charging lien, they paid the settlement proceeds to the newly retained counsel who agreed to hold, and has continued to hold, the disputed funds in trust. Because the funds are in trust, Law Office's lien has not been impaired. However, should that situation change in the future, the Insurers cannot avoid liability for the attorney's fees subject to Law Office's lien simply because it transferred the funds to a third party. See Hall, Lamb & Hall, P.A. v. Sherlon Invs. Corp., 7 So.3d 639, 641 (Fla. 3d DCA 2009).

AFFIRMED.

ORFINGER, BERGER and WALLIS, JJ., concur.

      The action between Law Office and the newly retained counsel concerning the division of the fee is still pending.


text:
    Kirk M. FOSTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D19-0692
    District Court of Appeal of Florida, First District.
    March 15, 2019 Rehearing Denied May 01, 2019
    Kirk M. Foster, pro se, Petitioner.
    Ashley B. Moody, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

The petition for writ of mandamus is denied on the merits.

Roberts, Ray, and Jay, JJ., concur.


author: M.K. Thomas, J.

text:
    MANAGED CARE OF NORTH AMERICA, INC., Appellant, v. FLORIDA HEALTHY KIDS CORPORATION and Delta Dental Insurance Company, Appellees.
    No. 1D16-5700
    District Court of Appeal of Florida, First District.
    March 20, 2019 Rehearing Denied April 24, 2019
    Kenneth B. Bell, Michael R. Cavendish, and Lauren V. Purdy of Gunster, Yoakley & Stewart, P.A., Tallahassee, for Appellant.
    Nathan A. Adams, IV, of Holland & Knight LLP, Tallahassee, for Florida Healthy Kids Corporation; Thomas P. Crapps, Timothy G. Schoenwalder, and Joy M. Ryan of Meenan P.A., Tallahassee, for Appellees.
   M.K. Thomas, J.

Managed Care of North America, Inc. ("MCNA"), seeks review of an order compelling disclosure of alleged trade secrets to a business rival. Because the trial court erred, as a matter of law, in application of section 812.081(1)(c), Florida Statutes, and portions of the order are not supported by competent, substantial evidence, we affirm in part, and reverse in part, for the reasons set forth below.

I. Factual and Procedural History

In late 2015, Florida Healthy Kids Corporation ("FHKC"), a non-profit corporation established by the State of Florida to facilitate children's dental care, began soliciting proposals from administrators of dental programs by issuing an Invitation to Negotiate ("ITN"). MCNA manages dental benefits for Medicaid participants and the Children's Health Insurance Program in Florida, among other states. MCNA and Delta Dental Insurance Company ("Delta"), a competitor, along with two other dental program administrators, submitted proposals for consideration.

MCNA compiled a proposal packet for FHKC which encompassed, among other documents, provider information in two forms: excel spreadsheets and geoaccess maps. In an effort to maintain the secrecy of the provider information, MCNA designated both as protected trade secrets, marking each page as confidential in accordance with section 624.4213, Florida Statutes, and as instructed by the ITN.

After considering all proposals, FHKC awarded contracts to three of four bidders. Delta's proposal was the only bid not chosen. In response, Delta served a public records request on FHKC to "inspect, examine, and copy all of the documents related to MCNA's response to Florida Healthy Kids Dental ITN 2015, including documents that MCNA claimed as 'trade secret' or identified as 'confidential.' "

The matter then took a procedural detour from a traditional public records dispute. Delta did not initiate the litigation under chapter 119, Florida Statutes, to compel production of the documents. Upon receiving notice of the public records request to FHKC, MCNA immediately filed a Verified Complaint requesting a declaratory judgment as to whether the records at issue were exempt from disclosure as "trade secrets." Delta responded by filing an opposed motion to intervene as "an interested party on the side of Defendant, Florida Healthy Kids Corporation," which the trial court ultimately granted. After an evidentiary hearing, the trial court issued an omnibus order finding the subject documents were not protected trade secrets, requiring full disclosure and awarding attorney's fees and costs to Delta as the "prevailing party," but retaining jurisdiction as to amount. MCNA filed this appeal.

II. Analysis

Section 119.01(1), Florida Statutes, which establishes Florida's broad public records policy, provides "that all state, county, and municipal records are open for personal inspection and copying by any person." See also Art. I, § 24(a), Fla. Const. However, the right to inspect or copy public records is not without limitation; the Florida Constitution permits the Legislature to exempt certain public records from disclosure as long as any such laws "state with specificity the public necessity justifying the exemption" and "are no broader than necessary to accomplish the stated purpose of the law." Art. I, § 24(c), Fla. Const.

At issue here is the legislatively created exemption to the public records law under section 815.045, Florida Statutes, which protects trade secrets from disclosure. Section 815.045, establishes that it is a public necessity that trade secrets "as defined in s. 812.081... be expressly made confidential and exempt from public records law..." Section 812.081(1)(c), Florida Statutes, defines "trade secret" as:

[T]he whole or any portion or phase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. The term includes any scientific, technical, or commercial information, including financial information, and includes any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patentability, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it
when the owner thereof takes measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.

§ 812.081(1)(c), Fla. Stat. (emphasis added).

Here, our limited role is to strictly construe section 812.081(1)(c), including its definition of "trade secret," and to determine if competent, substantial evidence exists to support the factual findings of the trial court. The trial court's interpretation of a statute and its application of law to facts are subject to de novo review. See Coventry First, LLC v. State, Office of Ins. Regulation , 30 So.3d 552, 556 (Fla. 1st DCA 2010) ; Reinish v. Clark , 765 So.2d 197, 203 (Fla. 1st DCA 2000). "We apply the competent, substantial evidence standard of review to a trial court's factual determination that documents do or do not contain trade secrets." Surterra Fla., LLC v. Fla. Dep't of Health , 223 So.3d 376, 379 (Fla. 1st DCA 2017) (citing Sepro Corp. v. Fla. Dep't of Envtl. Prot. , 839 So.2d 781, 785 (Fla. 1st DCA 2003) ).

A. Excel Spreadsheets

The excel spreadsheets created by MCNA present provider information separated into the following categories: 1) those providers affiliated with MCNA and treating FHKC patients; 2) providers affiliated with MCNA but who were not yet treating FHKC patients; and 3) "prospective providers" who had yet to contract with MCNA. As to the first two categories, the trial court determined the excel spreadsheets did not constitute trade-secrets because the providers were either known to the public through the MCNA website or were readily accessible to the public by phone request to MCNA. We decline to disturb the trial court's factual findings as to these categories, as competent, substantial evidence supports the determination that the information was readily accessible to the public, and no efforts were taken to protect this information. As to the third category, "prospective providers" not affiliated with MCNA, we find the trial court erred, as a matter of law, in denying the exemption from disclosure.

The trial court improperly interpreted the enumerated portion of section 812.081(1)(c), as setting forth the criteria, inclusive of proof of "value," to prove entitlement to a trade secret exemption. Instead, the enumerated portion of the statutory subsection establishes a presumption of what a trade secret is "considered to be" once the required elements of a trade secret are established, as set forth in the first sentence of the statutory subsection. The first sentence in section 812.081(1)(c) defines "trade secret" as: (1) a "compilation of information"; (2) "for use or is used in the operation of a business"; (3) "which provides the business an advantage or an opportunity to obtain an advantage, over those who do not know or use it"; and (4) the owner of the information "takes measures to prevent it from becoming available to persons other than those selected." § 812.081(1)(c), Fla. Stat.; see also Sepro Corp. , 839 So.2d at 783-84.

Once MCNA met its burden of proving that the spreadsheets were used in the operation of its business, that the information provided an advantage or the opportunity for an advantage, and that MCNA had taken measures to prevent its disclosure, the information is deemed protected trade secrets; and, by its very nature, the trade secrets are considered, as a matter of law, to be "of value." § 812.081(1)(c), Fla. Stat. Thus, the trial court erred in requiring MCNA to prove "value" as a separate and statutorily required element.

Delta defends the trial court's interpretation of section 812.081(1)(c) as requiring the party seeking protection from disclosure to prove "of value" as otherwise, all materials would be exempt if simply branded as "secret." Unquestionably, a reading of section 812.081(1)(c) as automatically entitling a party to a trade secret exemption by merely labelling information as confidential, has been previously condemned, and we do not retreat from sound precedent. James, Hoyer, Newcomer, Smiljanich, & Yanchunis, P.A. v. Rodale Inc., 41 So.3d 386, 387 (Fla. 1st DCA 2010) (a party may not render public records exempt from disclosure merely by designating information it furnishes a governmental agency as confidential); See also Sepro Corp. , 839 So.2d at 784 (citing Shevin v. Byron, Harless, Schaffer, Reid and Assocs., Inc. , 379 So.2d 633, 635 (Fla. 1980) ). For entitlement to the exemption under 812.081(1)(c), the requesting party must not only label the information as secretive, but must also prove a business advantage or an opportunity to obtain an advantage.

Here, uncontroverted testimony showed the life-blood of MCNA's business is winning competitive solicitations in Florida and other states for contracts to manage dental benefits. The documents Delta seeks from FHKC are MCNA's compilation of information about dental services available and potentially available through MCNA's network of providers. MCNA's witnesses confirmed this compilation of information was created solely for FHKC's consideration in the competitive ITN process. This unique listing of provider information was generated with MCNA proprietary software and gives MCNA a competitive business advantage in winning solicitations. In fact, over fifty percent of the available points for the bid proposal scoring were tied to the available provider network, establishing that FHKC prefers to award contracts to a company that has not only built an impressive provider network, but is also actively working to expand and grow its provider network by targeting new prospective providers. Thus, the non-public information is important to winning the contract; and, failing to protect the confidentiality of this information would reveal MCNA's regional marketing and contracting strategies to its competitors, thereby, destroying the business advantage this information gives MCNA.

The trial court's erroneous statutory elements test inexorably led to its improper consideration of the evidence presented. The trial court fundamentally misapplied section 812.081(1)(c) to require MCNA, as part of its burden of proof, to prove the information was "of value." In doing so, the trial court diverged from the plain language of the statute at issue, conflated separate and distinct public record exemptions, and perused Webster's dictionary for a definition of "value." The trial court concluded the materials were not protected, in part, because MCNA not only failed to prove the materials were "of value" but of "independent economic value," a definition of "trade secret" improperly extracted from section 688.002(4), Florida Statutes.

Having satisfied the burden of putting forth evidence establishing MCNA compiled the information and that the compilation gave a business advantage, the prospective provider information is, as a matter of law and by its very nature, considered "of value." Rodale, 41 So.3d at 388. Applying the definition of "trade secret" under section 812.081(1)(c), this Court finds the evidence establishes MCNA's entitlement to the exemption and those portions of the excel spreadsheets containing prospective providers are exempt from disclosure.

B. Geoaccess Maps

MCNA's geoaccess maps showed FHKC where its members were concentrated in relation to all of the various provider categories included on the excel spreadsheets. The maps do not include "prospective provider" information. The trial court reasoned that, because the geoaccess maps only indicated those providers who could be obtained by the public on MCNA's website or by phone request, "there is no trade secret provision applicable to that information." The trial court erred, as a matter of law, in determining that information available to the public can never be considered a protected trade secret. Public information can be subject to trade secret protection, as the time and effort spent compiling and the unique presentation thereof, may render the product a trade secret. See Surterra , 223 So.3d at 380.

Further, the trial court ignored the uncontroverted testimony of MCNA witnesses explaining that the trade secret nature of the geoaccess maps is independently derived from the unique composition of the maps themselves, not just the underlying information utilized to create the maps. More fundamentally, the trial court wholly ignored the uncontroverted evidence that the geoaccess maps cannot be recreated using only publicly available information because these maps are generated using proprietary software unavailable to MCNA's competitors. Thus, while some providers' actual locations may be searchable online or by calling MCNA's offices, the unique formatting and display of that information, as compiled and presented by MCNA specifically for FHKC, cannot be replicated without a competitor obtaining MCNA's Florida geoaccess maps from FHKC and reverse engineering its specialized software. MCNA invested significant time, resources and capital in generating a submittal which would be attractive to FHKC. This investment included not only the labor intensive market research necessary to assemble a proffered provider network that would stand out compared to MCNA's competitors, but also the forethought to create a visually appealing compilation and arrangement of the material itself. As such, the geoaccess maps constitute trade secrets wholly exempt from disclosure.

III. Attorney's Fees & Costs

MCNA challenges the trial court's award of attorney's fees and costs to Delta as the "prevailing party." We recognize the portion of the trial court's order granting fees is a non-final, non-appealable order, as it granted entitlement to fees, but withheld jurisdiction as to the amount to be awarded. See R.J. Reynolds Tobacco v. Ward , 141 So.3d 236, 240 (Fla. 1st DCA 2014). However, we write to assist the trial court in its considerations on remand.

The order, in its current form, fails to specify the party liable for the payment of the fees and costs or the statutory or contractual basis for fee entitlement. Presumably, the trial court relied upon section 119.12, Florida Statutes, as a basis for the award. However, this statutory subsection is not applicable, and the parties conceded as much during oral argument. Delta did not initiate the action under the Public Records Act. The litigation resulted from MCNA's request for a declaratory judgment which Delta joined as a third party intervenor. Accordingly, this is not an action under section 119, Florida Statutes, but a request for a declaratory judgment to determine if the documents at issue constitute trade secrets. Thus, there does not appear to be a basis upon which to award attorney's fees. As portions of the order have been reversed and the attorney fee order is not properly before us, the trial court must reconsider this issue on remand.

IV. Conclusion

We affirm the trial court's order compelling production of those portions of the excel spreadsheets revealing providers currently affiliated with MCNA, provider categories (1) and (2). We reverse the order on appeal compelling disclosure of those portions of excel spreadsheets which reveal "prospective providers" and the geoaccess maps, in their entirety. We do not rule as to the entitlement of attorney's fees and costs as that portion of the order is a non-final, non-appealable order. The case is remanded for entry of an order consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED .

Bilbrey, J., concurs; Ray, J., concurs in result with opinion.

Ray, J., concurs in result only.

I agree with the result reached by the majority on the trade-secret-exemption issues. But because the portion of the trial court's order determining Delta's entitlement to attorney's fees is not properly before this Court to review, I would decline to provide guidance on that issue.

      MCNA designated other materials as protected trade secrets as well. However, Delta eventually withdrew its challenge regarding all materials with the exception of the excel spreadsheet and geoaccess maps encompassed within proposal packet "Volume II."

      Florida law establishes multiple trade secret exemptions which arguably set forth different criteria. MCNA has restricted its arguments to the definition of trade secret in section 812.081(1)(c), Florida Statutes. Delta also stipulates to its exclusive applicability.

      Proof of business advantage may be argued as synonymous with evidence "of value." However, this issue is not before us as the parties stipulated the only exemption applicable is section 812.081(1)(c), Florida Statutes.

      The trial court considered the exemption under section 688.002(4), Florida Statutes, and its definition of "trade secret," although never raised by the parties. The inapplicability of section 688.002(4) to this case distinguishes it from Office of Insurance Regulation v. State Farm Ins. Co. , 213 So.3d 1104 (Fla. 1st DCA 2017) where, by consent of the parties, the "independent economic value" of the information was a required element of proof.

      FHKC further asserts that section 119.12, Florida Statutes, does not apply as a basis for attorney fees and costs as it is not an "agency."

      Judge Ray substituted for Judge Winsor after oral argument in this case.


text:
    Jeffrey AMMEEN, as Guardian and Father of Jade Ammeen and Aja Ammeen, Appellant, v. Wade SJOGREN, Individually and as Co-Trustee of the Kirsten Ammeen and Issue Year 2002 Trust and Jeffrey Ammeen, as Administrator of the Estate of Kirsten Ammeen, Appellees.
    No. 1D19-0294
    District Court of Appeal of Florida, First District.
    March 18, 2019 Rehearing Denied April 25, 2019
    Markus A. Sermons of Sermons Law, PLLC, Orange Park, for Appellant.
    No appearance for Appellees.
   Per Curiam.

Because the notice of appeal was not timely filed, this case is hereby dismissed for lack of jurisdiction. See Fla. R. App. P. 9.110(b) ; Peltz v. Dist. Court of Appeal, Third Dist. , 605 So.2d 865, 866 (Fla. 1992).

Wetherell, Osterhaus, and Winokur, JJ., concur.


text:
    Tommy SPAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D19-161
    District Court of Appeal of Florida, Fifth District.
    Opinion filed March 22, 2019 Rehearing Denied May 02, 2019
    Tommy Span, Miami, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Appellant appeals the trial court's denial of his Florida Rule of Criminal Procedure 3.800 motion for postconviction relief in Lake County Circuit Court Case No. 1973-CF-122. We affirm the trial court's order and caution him that abusive, repetitive, malicious, or frivolous filings directed to the identified lower court case number may result in sanctions such as a bar on pro se filing in this Court and referral to prison officials for disciplinary proceedings, which may include forfeiture of gain time. See § 944.279(1), Fla. Stat. (2018) ; State v. Spencer , 751 So.2d 47 (Fla. 1999).

AFFIRMED.

EISNAUGLE, GROSSHANS and SASSO, JJ., concur.


author: LaROSE, Chief Judge.

text:
    Kenneth Alan PEARSON, Appellant, v. Shay Rae PEARSON, Appellee.
    Case No. 2D17-4012
    District Court of Appeal of Florida, Second District.
    Opinion filed March 22, 2019 Rehearing Denied April 24, 2019
    Matthew P. Irwin and Terrence M. DeSalvo of the Men's Rights Law Firm, Cape Coral, for Appellant.
    Joseph P. Hoffman, Fort Myers, for Appellee.
   LaROSE, Chief Judge.

Kenneth Alan Pearson and Shay Rae Pearson divorced. Former Husband now challenges the final judgment of dissolution of marriage and child support order. We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A). The record before us stymies our ability to assess adequately whether the trial court properly equitably distributed monies from a law firm's trust account and proceeds from the sale of a parcel of real estate. The record does demonstrate that the trial court should have classified some portion of Former Wife's Florida Retirement System (FRS) pension as a marital asset. Consequently, we reverse the trial court's equitable distribution and remand for further proceedings. We also remand for the trial court to correct a minor numerical error in the Equitable Distribution Worksheet (the Worksheet). We affirm in all other respects.

Background

The parties married in August 1998. They separated some fifteen years later. Former Wife filed the operative petition for dissolution of marriage in 2013. During the proceedings, the parties sold some real estate. They deposited some of the sale proceeds in Former Wife's bank account; the rest went into the trust account of Former Husband's lawyer. After Former Husband successfully evicted tenants from other marital property in 2014, he deposited the last $ 1500 rental payment in the court registry.

In March 2015, the trial court ordered Former Husband's lawyer to distribute $ 4000 from his trust account to Former Wife's lawyer and $ 4000 to himself to partially satisfy an outstanding lien judgment. Former Wife agreed to keep $ 4001.93 in her bank account from the sale of the previously described parcel of property. The parties also stipulated that $ 6994.39 remained in the trust account of Former Husband's lawyer, representing the net proceeds of the sale of the marital home and the proceeds from the eviction case. The parties agreed that Former Husband's lawyer would distribute the remaining trust account funds as follows: $ 5498.16 to himself for fees, $ 496.23 to Former Wife's lawyer, and $ 1000 to Former Wife. The trial court agreed to this disbursement.

The trial testimony concerning the trust account funds and Former Wife's pension was sparse. Former Wife testified that about $ 13,000 of the trust account funds came from the sale of the marital home and $ 1500 of the funds came from the eviction case. Although she testified that the parties' counsel handled the disbursement of the trust account funds, she did not understand what happened to the funds.

Former Husband testified that he used an unspecified portion of the proceeds from the sale of the marital home for legal fees. He believed the $ 1500 from the eviction case remained in the court registry, not the trust account. As to the proceeds from the sale of the parcel of real estate, the parties seemingly agree that those funds went to pay legal fees.

As to the pension, Former Wife testified that she began to contribute to her retirement fund when she became a teacher in 2011. She was placed on administrative leave in late August 2013, and released from her job about a month later. She received pay while on administrative leave but was then unemployed until November 2013. Neither party suggested how Former Wife's administrative leave or termination affected her pension.

After the trial, the trial court entered a final judgment, attaching the Worksheet. The trial court identified Former Wife's pension as a nonmarital asset, commenting that the Former Wife became employed after she filed her petition. The trial court also identified, valued, and distributed the marital assets listed in the Worksheet. In row # 19, the trial court identified $ 18,996 as proceeds from the sale of real property, distributing $ 13,498 to Former Husband and $ 5498 to Former Wife. In row # 20, the trial court identified $ 1500 as funds from the "Landlord/Tenant Case," distributing $ 1500 to Former Husband. The trial court made no additional findings regarding the trust account funds or pension.

Analysis

I. Equitable Distribution of Funds from Trust Account and Former Wife's Bank Account

Former Husband argues that the trial court erred in including the trust account funds in its equitable distribution because he used the disbursements to pay his lawyer.

"We review the trial court's equitable distribution decisions for abuse of discretion and examine its valuation of marital assets to determine whether it is supported by competent, substantial evidence." Dravis v. Dravis, 170 So.3d 849, 853 (Fla. 2d DCA 2015). A trial court abuses its discretion where it "include[s] assets in an equitable distribution scheme that have been diminished or dissipated during the dissolution proceedings," unless there was misconduct that dissipated a marital asset. Id. (quoting Roth v. Roth, 973 So.2d 580, 584 (Fla. 2d DCA 2008) ); see, e.g., Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005) (holding that the trial court erroneously included depleted marital assets in the equitable distribution where the husband used the assets "to pay for his support, living expenses, and some litigation costs" during the dissolution proceedings and "no misconduct was asserted").

The trial court's equitable distribution of the trust account funds is problematic. The trial court did not provide a specific and accurate breakdown of the funds listed in row # 19 of the Worksheet. The trial court listed the trust account funds to be $ 18,996, but the record indicates no more than $ 14,994.39 was ever in the account; the $ 8000 described in the March 2015 order, plus $ 6994.39 that the parties stipulated remained thereafter.

Perhaps, as Former Wife suggests, the $ 18,996 includes the sale proceeds from the real estate parcel deposited in Former Wife's bank account, $ 4001.93-minus 32 cents. However, both parties testified that the $ 4001.93 was used to pay legal fees. Thus, it was error if the trial court equitably distributed the $ 4001.93. See Plichta, 899 So.2d at 1286 ("It was error for the trial court to include these depleted marital assets in the equitable distribution scheme because the Husband used this sum during the pendency of the dissolution proceedings, and no misconduct was asserted."). The trial court must reconsider the equitable distribution scheme on remand. See id.

Further, the parties agreed that the $ 6994.39 remaining in the trust account included the $ 1500 in proceeds from the eviction case. Apparently, this is the Landlord/Tenant case referred to in row # 20 of the Worksheet. If so, the trial court incorrectly included the $ 1500 in the equitable distribution twice, in row # 19 and, again, in row # 20. The trial court shall also reconsider this issue on remand.

Next, the record is ambiguous as to whether and how much of the $ 14,994.39 in trust account funds were actually distributed or dissipated during the dissolution proceedings. Prior to the trial, the trial court's March 2015 order and the parties' stipulation distributed a total of $ 9498.16 of the trust funds to Former Husband's lawyer, $ 4496.23 to Former Wife's lawyer, and $ 1000 to Former Wife. But at trial, Former Wife did not know what happened to the trust account funds. Former Husband testified that he used some of the funds for legal fees, but did not specify how much. Neither party provided definitive testimony that the $ 1500 in the trust account, purportedly from the eviction case, was disbursed. Former Husband thought the $ 1500 remained in the court registry.

We are unable to determine whether the trial court abused its discretion when it included the trust account funds in the equitable distribution scheme. We must reverse and remand for the trial court to reconsider this issue. See id. at 1286-87 ("Our inability to undertake meaningful review on this [equitable distribution] issue requires reversal and remand for reconsideration."). On remand, the parties shall present evidence and the trial court shall make findings regarding whether and how the trust funds were distributed or dissipated. See Chehab v. Hamilton-Chehab, 45 So.3d 533, 536-37 (Fla. 5th DCA 2010) (remanding for the trial court to make findings where the record was unclear whether and how much the former husband received from a brokerage account). If the funds were dissipated during the dissolution proceedings, then the trial court shall not include the funds in the equitable distribution scheme, without findings of misconduct. See Dravis, 170 So.3d at 853.

II. Former Wife's FRS Pension

Former Husband argues that the trial court incorrectly classified Former Wife's FRS pension as nonmarital. Former Wife counters that she was not vested and had no retirement plan until after she filed her petition because "she was first placed on administrative leave ..., then her contract was terminated" in the fall of 2013, before she filed her petition for dissolution.

Under section 61.075(7), Florida Statutes (2017), generally, the date for determining whether assets are marital is "the date of the filing of a petition for dissolution of marriage." Presumptively, assets acquired by a spouse after "the date of the marriage and not specifically established as nonmarital assets" are marital assets. § 61.075(8). "Marital assets" include "[a]ll vested and nonvested benefits, rights, and funds accrued during the marriage in retirement, pension, profit-sharing, annuity, deferred compensation, and insurance plans and programs." § 61.075(6)(a)(1)(e).

Former Wife filed her dissolution petition in 2013. The trial court concluded that Former Wife's FRS pension was a nonmarital asset because her employment start date was after she filed her petition. See § 61.075(7). However, Former Wife started contributing to her retirement plan as early as 2011. She offered no evidence indicating that she established her FRS pension as a nonmarital asset. Some portion of Former Wife's FRS pension, therefore, was a marital asset. See § 61.075(7).

The trial court received evidence that Former Wife was placed on administrative leave and then terminated from her employment as a teacher during the marriage. But the record does not indicate if and how Former Wife's administrative leave or termination affected her pension. Accordingly, we reverse and remand for the trial court to make findings regarding what portion of Former Wife's FRS pension should be classified as a marital asset. See Coleman v. Bland, 73 So.3d 795, 796 (Fla. 5th DCA 2011) (reversing and remanding for "the trial court to hear and to make proper findings on the disposition of the Former Husband's pension" where "[t]he record seem[ed] to show that some portion of the pension, although small, was earned during the marriage and should [have been] classified as a marital asset").

III. Numerical Error

Finally, we note that the trial court incorrectly listed in row # 9 of the Worksheet $ 125,020 as the total equity of business inventory held by Former Husband. Instead, it should have been $ 128,020 ($ 125,020 for Former Husband plus $ 3000 for Former Wife). This error is harmless because the separate totals for Former Husband and Former Wife were calculated correctly and the overall total had no effect on the calculation of the equalizer payment or the equitable distribution. See Herbello v. Perez, 754 So.2d 840, 840 (Fla. 3d DCA 2000) ("After carefully reviewing the record, we find that the alleged erroneous evidentiary ruling did not affect the outcome of the trial. Therefore, the error, if any, was harmless." (first citing § 59.041, Fla. Stat. (1999) ; and then citing Katos v. Cushing, 601 So.2d 612, 613 (Fla. 3d DCA 1992) ) ). But, because we are remanding due to other issues with the equitable distribution, we direct the trial court to change the total equity in the Worksheet to avoid any potential issues in the future.

IV. Conclusion

We reverse and remand the trial court's equitable distribution. On remand, the trial court shall reconsider its equitable distribution of (1) the $ 4001.93 in proceeds from the sale of the real estate parcel deposited in Former Wife's bank account, and (2) the $ 1500 from the eviction case in row # 20 of the Worksheet. The trial court shall take evidence and make findings regarding the distribution and dissipation of the trust account funds. Additionally, the trial court shall take evidence and make findings regarding the portion of Former Wife's FRS pension that should be classified as a marital asset. Finally, the trial court shall change the total equity in row # 9 of the Worksheet from $ 125,020 to $ 128,020. In all other aspects, we affirm.

Affirmed, in part; reversed, in part; remanded with directions.

NORTHCUTT and KHOUZAM, JJ., Concur.