author: HAWKES, C.J. KAHN, J., CLARK, J.,

text:
    PARADISE PINES HEALTH CARE ASSOCIATES, LLC., d/b/a Harts Harbor Health Care Center, Petitioner, v. Helen BRUCE and Glen Benekin, as Personal Representative of the Estate of Bettye Jean Benekin, Respondent.
    No. 1D09-961.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 4, 2010.
    P. David Brannon, Harold R. Marden-borough, Jr., and Matthew Scanlan of Carr Allison, Tallahassee, for Petitioner.
    Thomas S. Edwards, Jr., Jennifer K. Millis, and Katherine E. Loper of Edwards & Ragatz, Jacksonville; Deborah L. Mos-kowitz, Orlando, for Respondent.
   HAWKES, C.J.

The Petitioner, Paradise Pines Health Care Associates, have petitioned this Court to quash the trial court’s order requiring it to produce several incident reports relevant to the Respondent’s action. After a hearing, the trial court determined the incident reports contained information that the Respondent could not obtain elsewhere without undue hardship. Accordingly, the court ruled the incident reports were not protected under the work product privilege and ordered the Petitioner to produce them during discovery. Because the trial court did not misapply the law pertaining to how a moving party may overcome the work product privilege, we affirm the trial court’s ruling and deny certiorari.

Under Rule 1.280(b)(3) (2008), Florida Rules of Civil Procedure, there are two prongs that the Respondents must meet to overcome the Petitioner’s work product privilege: (1) a need for the document sought; and (2) an inability to obtain equivalent information without undue hardship. No serious argument has been made that the incident reports at issue do not contain relevant information that the Respondents need. The issue before us only concerns the second prong; particularly, whether the Respondents would suffer undue hardship in obtaining the information contained in the reports. To determine whether a moving party will experience undue hardship, courts must balance the moving party’s burden in obtaining information with the non-moving party’s burden of production. Here the trial court determined the Respondents had no realistic way to independently procure the information and the Petitioner had the incident reports at their immediate disposal.

The trial court did not misapply rule 1.280(b)(3) when it ordered the Petitioner to produce the incident reports. The order provides:

[Respondents] have further established their need for the [incident reports], in that Bettye Jean Benekin was suffering from dementia at the time of the incident at bar, and has since died. Thus, they have been unable to confer with her about events surrounding any of the incidents. [Petitioner] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports.

In the order, the trial court expressly stated the Respondents demonstrated a need for the reports; then, in the following sentence, explained that the subject of the incidents contained in the reports was deceased and “unable to confer [] about events surrounding any of the incidents.” This is an implicit finding of undue hardship on the part of the Respondents. Such language clearly indicates the trial court was convinced it would be difficult, if not impossible, for the Respondents to obtain the information independently.

Moreover, the trial court’s reference to the Petitioner’s ability to produce the incident reports without undue hardship is not indicative of the court’s misapplication of Rule 1.280(b)(3). Rather, it indicates the court conducted a balancing test and determined the burden faced by the Respondents was unduly difficult in comparison to the ease with which the defendant could produce the reports.

Because there is nothing in the trial court’s order that indicates the court misapplied the law, and certainly nothing that indicates the court departed from the essential requirements of the law, it would be an exercise in futility to remand this case simply so that the trial court can more specifically make findings already inherent in its order.

DENIED.

KAHN, J., concurs; CLARK, J., Dissents with opinion.

KAHN, J.,

concurring.

I concur fully in the opinion denying the Petition for Writ of Certiorari. After reviewing the transcript of the hearing, attached as an appendix to the petition, I conclude that the trial court was well aware of, and did apply, the appropriate test. During a discussion with the attorneys, Circuit Judge Mitchell acknowledged the appropriate case law and specifically mentioned the case here cited by the dissent, Tampa Medical Assoc. v. Estate of Torres, 903 So.2d 259 (Fla. 2d DCA 2005). Reviewing the Torres decision, Judge Mitchell noted that the trial judge in that case had stated, “the Estate had made a specific showing of need and inability to obtain equivalent information, without undue hardship, which entitled it to obtain copies of the incident reports.” Id. at 260-61. Clearly recognizing that the appropriate showing had actually not been made in Torres, Judge Mitchell went on to note,

[Tjhat’s one of the problems we have with all the nursing home cases, not all, because not all of the people are — some of them are physically infirmed as opposed to mentally, but that’s why I’m going to read it. I mean, you know, I understand the privilege, but there are exceptions to the privilege.... And I’m going to try to determine whether or not this is an exception.

Accordingly, I have no problem in determining, without any real doubt, that the trial court completely understood the appropriate test, and proceeded to apply that test, having given due consideration to the case law. Nevertheless, and assuming ar-guendo that the trial court’s order is facially deficient, we are perfectly able to review the appendices before us and determine that respondent, as the party seeking production, met its burden under the second prong of Florida Rule of Civil Procedure 1.280(b)(3), that being inability to obtain equivalent information without undue hardship. See Fla. Power Corp. v. Dunn, 850 So.2d 655 (Fla. 2d DCA 2003). The trial court here applied the appropriate test and properly ordered production of the items in question.

CLARK, J.,

dissenting.

I respectfully dissent. The only question before us is whether the trial judge’s order departed from the essential requirements of law. Under rule 1.280(b)(3), Florida Rules of Civil Procedure, a party may obtain discovery of trial preparation materials “only upon a showing that the party seeking discovery has a need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.” (Emphasis supplied.)

The order on appeal stated “[Petitioner] has also failed to demonstrate any undue hardship which it would suffer by virtue of producing the incident reports.” Hardship upon the party producing the records is irrelevant to the rule 1.280(b)(3) analysis. The respondents were the party seeking production of the incident reports, not the petitioner. See Tampa Med. Assocs. v. Estate of Torres, 903 So.2d 259 (Fla. 2d DCA 2005), and Ruhland v. Gibeault, 495 So.2d 1243 (Fla. 5th DCA 1986).

I conclude that the trial judge’s consideration of hardship upon the party producing the records was a misapplication of the test set out in rule 1.280(b)(3) and was thus a departure from the essential requirements of law.

I would grant the petition for certiorari.

      . The fact that information pertaining to the identity of employees and patients that were present during the incidents in question could only be obtained from the incident reports was brought out at trial and further supports the trial court’s ruling.

       The record reflects that Judge Mitchell presided at the motion hearing, whereas Judge Car-ithers signed the order that is the subject of the petition for writ of certiorari.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Glenda SLY, as Personal Representative of the Estate of James T. Sly, Jr., Deceased, Appellant, v. Frank McKEITHEN, Bay County Sheriff, Board of County Commissions, Bay County, Florida; Corrections Corporation of America; and Miko Davette Harris, Appellees.
    No. 1D09-0895.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 5, 2010.
    Roy D. Wasson and Annabel Majewski, of Wasson & Associates, Chartered, Miami; and Sam K. Zawahry, of the Zawahry Firm, P.A., Panama City, for Appellant.
    Clifford C. Higby and Halley A. Stark of Bryant <& Higby, Chartered, Panama City, for Appellees, Corrections Corporation of America and Miko Davette Harris.
   PER CURIAM.

Glenda Sly, as personal representative of the estate of James Sly, Jr., appeals from an order granting the motion of Corrections Corporation of America and Harris to dismiss for failure to comply with Florida Rule of Civil Procedure 1.070(j), which requires service of process to be effected within 120 days from the filing of the complaint. Because we conclude that it was an abuse of discretion for the trial court to dismiss the complaint with prejudice for failure to timely serve process when the statute of limitations had expired, we reverse the order dismissing Appellant’s complaint with prejudice and remand the case for further proceedings.

Appellant filed the initial complaint on April 5, 2007, just prior to the expiration of the applicable statute of limitations. On July 25, 2007, before the expiration of the 120 days within which to serve process, Appellant filed a motion for extension of time to serve process. Appellant filed two additional motions for extensions of time to serve process on November 20, 2007, and January 22, 2008. Appellant never set a hearing for any of these motions; no order for an extension of time was entered by the trial court for any of the three motions, nor was a summons issued. Appellant filed an amended complaint on March 24, 2008, and Appellees were finally served on March 28, 2008, nearly a year after the filing of the initial complaint.

After Appellees filed a motion to dismiss for failure to comply with the 120-day requirement, the trial court dismissed the case with prejudice, declining to exercise discretion to permit Appellant additional time to perfect service, and finding that Appellant failed to demonstrate good cause or excusable neglect for the delay. The dismissal with prejudice precluded Appellant from refiling due to the expiration of the statute of limitations.

Under Rule of Civil Procedure 1.070(j), if the initial process and initial pleading is not served upon the defendant within 120 days after the filing of the initial pleading, and a showing of good cause or excusable neglect is not made, the trial court has the discretion to (1) direct that service be effected within a specified time; (2) drop that defendant as a party; or (3) dismiss the action without prejudice. See Thomas v. Silvers, 748 So.2d 263, 264-65 (Fla.1999).

Rule 1.070(j) was amended in 1999 in order to broaden the trial court’s discretion to allow an extension of time for service of process “even when good cause has not been shown.” Carter v. Winn-Dixie Store, Inc., 889 So.2d 960, 961 (Fla. 1st DCA 2004) (quoting Britt v. City of Jacksonville, 874 So.2d 1196, 1197 (Fla. 1st DCA 2004)) (emphasis added). Prior to the amendments, application of Rule 1.070(j) often resulted in harsh consequences: “such as where noncompliance triggered dismissal without prejudice, but expiration of the statute of limitations would preclude refiling of the action. Thus, in such a situation, dismissal for procedural noncompliance could have the practical effect of dismissal with prejudice.” Totura & Co. v. Williams, 754 So.2d 671, 677 (Fla.2000) (citing Amendment to Florida Rule of Civil Procedure 1.070(j)-Time Limit for Service, 720 So.2d 505, 505 (Fla.1998)) (internal citation omitted).

In the order granting Appellees’ motion to dismiss, the trial court found that Appellant had failed to demonstrate good cause or excusable neglect for the delay and service. The trial court then explicitly noted that the statute of limitations had run and acknowledged that the ruling would terminate all further proceedings. In situations where the statute of limitations has run, the trial court should normally exercise discretion in favor of giving the plaintiff additional time to perfect service. Chaffin v. Jacobson, 793 So.2d 102, 104 (Fla. 2d DCA 2001) (“[T]he purpose of Rule 1.070(j) is to speed the progress of cases on the civil docket, but not to give defendants a ‘free’ dismissal with prejudice.”) (quoting Skrbic v. QCRC Assocs. Corp., 761 So.2d 349, 354 (Fla. 3d DCA 2000) (Cope, J., concurring in part and dissenting in part)). Where the statute of limitations has run, “[discretion in these circumstances must be exercised with the understanding that Florida has a longstanding policy in favor of resolving civil disputes on the merits.” Id. Brown v. Ameri Star, Inc., 884 So.2d 1065, 1067 (Fla. 2d DCA 2004) (recognizing that the intent that of Rule 1.070(j) is to “serve as ‘a case management tool’ and not as ‘a severe sanction.’ ”) (citing Chaffin v. Jacobson, 793 So.2d 102, 103-04 (Fla. 2d DCA 2001)).

Because the statute of limitations had run and service had been obtained prior to the hearing on the motion to dismiss, we conclude that the trial court abused its discretion in granting the motion to dismiss. See Chaffin, 793 So.2d at 104; see also, Kohler v. Vega-Maltes, 838 So.2d 1249, 1250-51 (Fla. 2d DCA 2003).

Accordingly, we REVERSE and REMAND for further proceedings consistent with this opinion.

BARFIELD, CLARK and ROWE, JJ., concur.

      . If the plaintiff can demonstrate good cause or excusable neglect, then the trial court must grant an extension for time of service. See Fla. R. Civ. P. 1.070(j).


text:
    Bakiba L. THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-2678.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 5, 2010.
    Robert Augustus Harper, III, of Harper & Harper Law Firm, P.A., Tallahassee; Bakiba L. Thomas, pro se, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This appeal of an interlocutory order of the circuit court rendered in its appellate capacity is dismissed for lack of jurisdiction, and all pending motions are denied as moot.

WEBSTER, DAVIS, and PADOVANO, JJ., concur.


text:
    Victor BOUIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3184.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.

      Victor Bouie, pro se, Appellant.
    Bill McCollum, Attorney General, Heather Flanagan Ross, and Jennifer J. Moore, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 8.850. We affirm the denial of all but one of the appellant’s claims. For the reasons discussed below, we reverse and remand the appellant’s claim that counsel was ineffective for failing to object to a portion of the jury instructions.

The appellant asserts that counsel failed to object when the trial court read the forcible felony exception for count one. The forcible felony exception “provides that a defendant may not avail himself of the defense of self-defense if he is engaged in attempting, committing, or escaping after the commission of a forcible felony.” Barnes v. State, 12 So.3d 797 (Fla. 5th DCA 2009). In Stoute v. State, 987 So.2d 748 (Fla. 4th DCA 2008), a defendant alleged that counsel was ineffective for failing to object to the giving of the forcible felony instruction which was not applicable and deprived him of his theory of defense. This Court reversed and remanded for a new trial, holding that because the instruction negated the defendant’s only theory of defense, that being self-defense, the prejudice prong was satisfied. Here, the appellant alleges that no independent forcible felony existed that would justify the trial court reading, or the jury considering, the forcible felony exception instruction in deciding the verdict on count one and that both parties below agreed it did not apply to count one. It also appears that the appellant argued self-defense as his theory of defense to count one. Thus, the appellant’s claim is facially sufficient and not refuted by the record. Accordingly, we reverse the denial of the appellant’s claim that counsel was ineffective for failing to object to the trial court giving the forcible felony instruction and remand for the trial court to attach portions of the record refuting the appellant’s allegations or to conduct an eviden-tiary hearing.

AFFIRMED in part and REVERSED and REMANDED in part.

BARFIELD, VAN NORTWICK, and CLARK, JJ., concur.


author: PER CURIAM. HAWKES, C.J., BENTON, J.,

text:
    Sarah N. JACKSON, Appellant, v. RYAN'S FAMILY STEAK HOUSE and Zurich-American Insurance, Appellees.
    No. 1D08-6328.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 4, 2010.
    John W. Wesley of Wesley, McGrail & Wesley, Fort Walton Beach, for Appellant.
    Britt Thomas, George, Hartz & Lun-deen, P.A., Tallahassee, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) that awards his counsel $8,860.00 in attorney’s fees for securing reimbursement of medical mileage in the amount of $201.44. Claimant argues the JCC reversibly erred by unilaterally reducing the hours expended based on non-record evidence. We affirm because the record supports the JCC’s finding that the claimed fee was clearly excessive and unconscionable, and even if we were to remand for further proceedings, we have little doubt that upon remand, the employer/carrier (E/C) would introduce evidence establishing that a reasonable fee certainly would not exceed $3,860.00.

WETHERELL, J., concurs; HAWKES, C.J., concurs with opinion; BENTON, J., dissents with opinion.

HAWKES, C.J.,

concurring.

I concur with the majority opinion. A JCC has a duty to award fees that are reasonably related to the amount a conscientious and diligent attorney would be expected to charge under similar circumstances. To award a fee amount that is excessive to the point it “shocks the conscience” of the JCC who presided over the case is illogical and contrary to the primary goal of the statute. Therefore, I agree that the JCC’s order should be affirmed.

Background

Claimant filed a petition for benefits (PFB) for authorization of psychiatric treatment, prescription reimbursement, and payment of mileage. After a full merits hearing, the JCC denied the claims for a psychiatrist and prescription reimbursement, but awarded mileage reimbursement in the amount of $201.44. Thereafter, Claimant’s counsel filed a verified petition for attorney’s fees seeking payment of 40.33 hours at a rate of $200 per hour for the time allegedly spent securing mileage reimbursement. The E/C filed a verified response challenging some time entries (approximately six hours), but primarily challenged the excessiveness of the entire fee.

At the hearing on the attorney’s fee, the attorneys for the respective parties served as their own experts and testified to the reasonableness of the fee at issue. Claimant’s counsel “withdrew” 1.2 hours included in his verified petition and testified a reasonable fee for the benefits secured was $7,890.00. Counsel for the E/C testified that although the guideline fee of $40.28 was manifestly unfair, a reasonable fee, consistent with the Florida Supreme Court’s opinion in Murray v. Mariner Health, 994 So.2d 1051 (Fla.2008), would be whatever the judge deemed reasonable.

The JCC entered an order containing his analysis of the statutory factors in section 440.34(l)(a)-(f), Florida Statutes (2002) and, after establishing that a guideline fee of $40.29 was manifestly unfair, awarded a fee in the amount of $3860.00. In arriving at fee amount, the JCC stated:

It is undisputed Claimant’s attorney recovered a benefit for his client, a benefit which she was due and which the E/C did not provide until Claimant’s attorney intervened. As a result, Claimant’s attorney is entitled to recover a reasonable fee from the E/C. As the benefit obtained had a monetary value of $201.44, I find the award of a statutory fee of $40.29 would be unreasonable and manifestly unfair even had Claimant’s attorney spent one (1) hour obtaining such benefit. And while a fee of $6,040.00[] for securing $201.44 in benefits may be appropriate in a case where the issues are complex, novel, difficult, hard-fought and contingent, I find this is not such a case. Rather, in this instance, I find to award an attorney’s fee of $6,040.00 would be unreasonably excessive to such an extent to shock the judicial conscience, at least the conscience of this JCC. I further find to award such a fee in this instance would require complete disregard of the Supreme Court’s directive in Murray that “judges who hear these claims and determine the amount of the attorney fees under subsection (3) must be vigilant to award only reasonable and necessary fees.”

(quoting 994 So.2d at 1062). The JCC (who also presided over the trial for the medical mileage claim) also found that for an experienced attorney such as Claimant’s counsel, little time and effort should have been required to prosecute this mileage claim. Claimant moved for rehearing arguing that the JCC, by unilaterally reducing his hours, relied on non-record evidence, a practice that is prohibited. The JCC denied the motion, indicating that he disbelieved Claimant’s counsel’s trial testimony and was not persuaded that the time alleged to be expended was actually required for prosecution of the simple mileage claim. The JCC reiterated that the fee claimed by Claimant’s counsel shocked his conscience, and pursuant to the supreme court’s directive in Murray, he was obliged to award what he considered a reasonable fee. Claimant’s counsel then filed this appeal seeking relief because the JCC, in setting the amount of his fee, relied on factors not permitted by law.

Analysis

I begin my analysis by noting the quantum of the fee at issue was contested (rather than stipulated), and the E/C opposed the excessive amount of the fee claimed. Nevertheless, the E/C, instead of introducing meaningful evidence to support its defense, merely asked the JCC to use his own judgment in assessing a reasonable fee. Under normal circumstances, such a tactic would be ill-advised, because the JCC, as finder of fact, is bound by the record evidence and cannot act as an advocate or witness for either side. See Smith v. U.S. Sugar Corp., 624 So.2d 315, 319 (Fla. 1st DCA 1998) (stating JCC is bound to resolve conflicts based upon the evidence of record); see also G & A Bldg. Maint. v. Makuski, 510 So.2d 1074, 1075 (Fla. 1st DCA 1987) (reversing award of attorney’s fees that exceeded amount requested by claimant’s attorney); Fla. Admin. Code. R. 60Q-6.124(3)(a)-(c) (explaining procedure for resolution of disputed attorney’s fees). Fortunately for the E/C, the JCC found the fee due in accordance with the record evidence to be clearly excessive and shocking to the judicial conscience (not once, but twice) and it is for this reason that we affirm.

The JCC has the duty to ensure that all fees paid for claimants in workers’ compensation proceedings are reasonable. See § 440.34(l)-(3), Fla. Stat. (2002). This requirement prohibits the award of both excessive and inadequate fees. See Murray, 994 So.2d at 1061 (Fla.2008). On numerous occasions, this Court has restricted JCCs from relying on subjective beliefs and non-record evidence when determining the reasonableness of attorney’s fees. See Marshall v. City of Miami Dep’t of Conventions & Marinas, 920 So.2d 107 (Fla. 1st DCA 2006) (prohibiting JCC from setting hourly rate of attorney’s fees where no record evidence supported JCC’s finding); Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173, 1174-75 (Fla. 1st DCA 2004) (reversing fee award where reduction of time was based on JCC’s subjective belief and personal experience as to what was reasonable); Feinberg v. Miami-Dade County, 788 So.2d 417 (Fla. 1st DCA 2001) (reversing JCC’s finding that 76.7 of the claimant’s attorney’s hours were “excessive and unrelated to the benefits obtained,” because finding unsupported by record); see also Makuski, 510 So.2d 1074. Nevertheless, we have never imposed such restrictions to an extent that would require a JCC to abandon common sense, good judgment, or his statutory role as the arbiter of reasonableness so as allow the award of an unconscionably excessive fee. To the contrary, no court is obliged to approve a judgment that is so manifestly unjust that it offends the judicial conscience. See Miller v. First Am. Bank & Trust, 607 So.2d 483, 484 (Fla. 4th DCA 1992). The potential for abuse of hourly fees in the workers’ compensation system has caused the Florida Supreme Court to comment:

The judges who hear these claims and determine the amount of the attorney fees under subsection (3) must be vigilant to award only reasonable and necessary fees. Further, we expect the appellate courts to review the factors in cases presented to the courts so that only reasonable and necessary fees are awarded.

Murray, 994 So.2d at 1062. Although I do not suggest that we recede from our holdings requiring JCCs to base the calculation of a fee on record evidence, it seems to me that these holdings have caused fee hearings in workers’ compensation proceedings to evolve into a ritual of hours and rates that transcends the statutory scheme and pays no mind to the fundamentals of jurisprudence, legal ethics, or the essential question at hand: what is a reasonable fee for the services provided?

As should always be the ease in workers’ compensation matters, the statute holds the answers. Section 440.34(l)(a), Florida Statutes (2002), mandates that, in assessing a reasonable fee, the JCC consider the time, labor, and skill “required” to perform the legal services properly, not the time actually expended by counsel. The ritualistic focus on hours and rates has apparently caused lawyers to lose sight of the primary goal of the statute — to award fees that are reasonable and bear some relationship to the charges that would be expected of a conscientious and diligent attorney under similar circumstances. No reading of the statute allows for an award of fees that shocks the conscience of the very jurist who decided the case. Moreover, the statute requires that, in awarding a reasonable fee, the JCC shall consider only those benefits secured by the attorney. See § 440.34(2), Fla. Stat. (2002). Accordingly, in the instant case, the essential question presented to the JCC was: how much time and skill was required (not the time and skill actually expended) to properly prosecute the claim for medical mileage reimbursement.

Here, the JCC, a trained jurist who presided over the underlying substantive claim in question, was shocked by the evidence, and found the resulting fee requested to be illogical, incredible, and unconscionably excessive. See e.g. Strickler v. Fla. Power Corp., 667 So.2d 239, 240 (Fla. 1st DCA 1995) (“[t]he JCC as the finder of fact has the prerogative of disbelieving a witness.”). In fact, he found that “little time and effort should be required to prosecute a mileage reimbursement claim as was at issue herein.” The E/C, although not providing any evidence as to the precise amount of a reasonable attorney’s fee, did present expert testimony that the amount claimed by Claimant’s counsel was clearly excessive based on the statutory factors. Thus, the JCC’s finding that the claimed fee was clearly excessive and unconscionable was based on competent substantial evidence, and should not be disturbed on appeal. See Mercy Hosp. v. Holmes, 679 So.2d 860 (Fla. 1st DCA 1996) (holding JCC’s conclusion as to factual issues will be affirmed if record contains competent, substantial evidence to support it). Moreover, a determination that a fee is clearly excessive or manifestly unfair can be made as a matter law and, under such circumstances, is not subject to the competent substantial evidence standard of review. See Davis v. Bons Secours-Maria Manor, 892 So.2d 516 (Fla. 1st DCA 2004) (reversing award of attorney’s fee based on conclusion that fee was manifestly unfair). A fee can be manifestly unfair either because it is too low, or because it is too high. Therefore, I see no basis to reverse the JCC’s finding as to the unconscionably excessive nature of the claimed fee.

Nevertheless, because the E/C did not provide any alternative evidence as to the value of a reasonable fee, the JCC was caught in a Catch-22 — he could either award the fee he found to be unconscionably excessive (manifestly unfair), violating the statute’s requirement (and the supreme court’s directive) that he only award a reasonable fee; or find no persuasive evidence as to the value of a reasonable fee, and award no fee (or a statutory guideline fee of $40.28), an amount which the JCC found manifestly unfair, as too low, which would also violate the statute’s requirement for the award of only reasonable fees. Although I am mindful that workers’ compensation fee hearings are adversarial in nature, and employer/carriers have an inherent incentive, if not an affirmative duty, to present evidence of a reasonable fee in opposition to a verified petition which is deemed excessive, I cannot ignore the duty placed on JCCs and this court to ensure that only reasonable fees are awarded. See Fla. Admin. Code R. 60Q-6.124(3)(a)-(e) (explaining procedures for resolution of disputed fees and costs); see also § 440.34(1), Fla. Stat. (2002) (stating an attorney’s fee may not be paid unless approved as reasonable by the JCC).

In most circumstances where hourly fees are involved, the question of what is a reasonable attorney’s fee does not have a singular response; rather, the answer will fall somewhere in a range that is generally accepted as reasonable by the community. See § 440.34(3)(b), Fla. Stat (2002) (stating in assessing a reasonable attorney’s fee the JCC shall consider the fee customarily charged in the locality for similar legal services). When the parties are involved in a good-faith dispute regarding an attorney’s fee that falls within the range of reasonableness, a JCC should refrain from acting as an independent witness or advocate, and decide the issue based on the parties’ pleadings and expert testimony, not his subjective beliefs and personal experience. See Sanchez, 867 So.2d 1173, 1174-75. We cannot ignore, however, the reality that a JCC, an official charged with the exclusive statutory duty of approving all claimants’ attorney’s fees, has a well-founded understanding of the market value of fees in the community. See Crittenden Orange Blossom Fruit v. Stone, 514 So.2d 351, 353 (Fla.1987) (recognizing JCCs are well qualified to determine the reasonableness of attorney’s fees by reason of their experience, training and education, when no hearing is required). And where the evidence is patently exaggerated, illogical, or unconscionable, the JCC must not be bound by inelastic rules which command an unconscionable result not otherwise permitted by statute. For the JCC to be vigilant in ensuring that only reasonable and necessary fees be awarded, the JCC must be cloaked with the authority to deny a fee that is unconscionably excessive, even if the amount of such fee is “uncontrovert-ed” based on the record evidence. See § 440.33(1), Fla. Stat. (2002) (stating JCC may do all things conformable to law which may be necessary to enable JCC to effectively discharge duties).

A system which allows for the award of excessive fees as the product of arcane ritual and formalistic rules not only violates the clear intent of the Legislature and the missive from the Florida Supreme Court, but it also threatens the integrity of the legal system itself by eroding the public’s confidence in the bench and bar. See generally Ziontz v. Ocean Trail Unit Owners Assoc., 663 So.2d 1334, 1336 (Fla. 4th DCA 1993). Nevertheless, where an adversarial evidentiary hearing is required, the JCC should rely on expert testimony presented by the parties to avoid becoming an expert witness not subject to cross examination. See Sanchez, 867 So.2d at 1174 (noting that calculation of fee based on JCC’s subjective beliefs and personal experience makes informed appellate review impossible). Here, however, the JCC was left with no apparent alternative and, to avoid the award of an unconscionably excessive fee, he eliminated hours which, in his judgment, were not reasonably related to the task of prosecuting the medical mileage claim.

I believe the better course would have been for the JCC, upon finding the fee established by the evidence unconscionably excessive, to pose questions to the witnesses (as is permitted by section 440.33(1)) to establish the record basis for the reduction in hours. Nonetheless, I agree that there is no reason to remand this matter for a new hearing as such a proceeding will not likely change the result. Further, Claimant’s counsel, who had the initial affirmative burden of proving the amount of a reasonable fee but failed in this regard, should not be afforded the opportunity for a “mulligan” borne of his attempt to collect a fee that was found unconscionable and clearly excessive by the very judge who presided over the trial of the mileage claim. See generally Golian v. Wollschlager, 893 So.2d 666, 668-69 (Fla. 1st DCA 2005).

Conclusion

I am mindful of the precarious balance that must be reached in the workers’ compensation system between properly compensating attorneys for their work and ensuring that the system is cost efficient. Neither of these goals is furthered, however, if the system blindly allows for the award of unconscionable fees without regard to issues of fundamental justice. I am confident that issues of this nature will be avoided if attorneys representing carriers diligently prepare for attorney fee hearings and present meaningful evidence, rather than relying on the JCC to act on their behalf. Notwithstanding the significant duty imposed on the JCC to ensure that all attorney’s fees paid are reasonable, it is not the JCC’s duty to compensate for the inadequacies of proof or pleadings. See Holiday Inn v. Sallee, 496 So.2d 227 (Fla. 1st DCA 1986) (noting it is a novel proposition that JCC must rule on applicability of every provision of Chapter 440 irrespective of particular issues presented by parties for resolution). Nevertheless, because the record supports the JCC’s finding that the claimed fee was unconscionably excessive, I agree that the order on appeal should be affirmed.

BENTON, J.,

dissenting.

I respectfully dissent because I am unable to distinguish the present case from our decision in Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173, 1174-75 (Fla. 1st DCA 2004).

      . This is the amount of the fee Claimant’s counsel averred was awardable based on the uncontested hours and a stipulated hourly rate of $200 per hour.

      . The procedures governing uncontested or stipulated fees are different than those governing disputed fees, see Florida Administrative Code 60Q-6.124(1), and when fees are agreed upon, in the absence of some indicia of fraud, overreaching, or facts which indicate the stipulation is against the manifest weight of the evidence, such a stipulation is binding on the JCC. See Sapp v. Berman Bros., 884 So.2d 1080 (Fla. 1st DCA 2004).


author: CLARK, J.

text:
    Patricia Ann MILLS, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Carl B. Schwait, and Dell Graham, P.A., Appellees.
    No. 1D09-438.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Rehearing Denied Feb. 5, 2010.

      Fred C. Abbott of Abbott Law Firm, P.A., Jacksonville; Michael J. Korn and Jordan R. Biehl of Korn & Zehmer, P.A., Jacksonville, for Appellant.
    Stephen E. Day, Carol M. Bishop, and Rhonda B. Boggess of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Appel-lees.
   CLARK, J.

The insured appeals from summary judgment entered in favor of State Farm Insurance Company (“State Farm”) in a bad faith action. We reverse.

In the proceedings below, the insured alleged that State Farm acted in bad faith in: 1) failing to settle a claim within policy limits; 2) failing to properly advise her of the possibility of an excess verdict; and 3) failing to inform her of remedial steps available to minimize her risk of a substantial money judgment against her.

The standard of review of a summary judgment is de novo. See O’Brien v. State Farm, 999 So.2d 1081 (Fla. 1st DCA 2009); Walsingham v. Dockery, 671 So.2d 166 (Fla. 1st DCA 1996). In reviewing a summary judgment, this Court must consider all record evidence in a light most favorable to the non-moving party. If material facts are at issue and the slightest doubt exists, summary judgment must be reversed. See Hancock v. Dep’t of Corrections, 585 So.2d 1068 (Fla. 1st DCA 1991).

When an insured has surrendered to the insurer all control over a claim brought against her, the insurer is obligated to make litigation and settlement decisions in good faith, with the insured’s best interest in mind. See Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783 (Fla.1980). Accordingly, an insurer is required to settle a claim where a reasonably prudent person, faced with the prospect of paying the total recovery amount, would accept settlement. Berges v. Infinity Ins. Co., 896 So.2d 665 (Fla.2004).

The question of whether a liability insurer has acted in bad faith in handling a claim against the insured is determined upon the totality of the circumstances, with each case determined on its own unique facts. The question of failure to act in good faith is ordinarily for the jury. Boston Old Colony Ins. Co. v. Gutierrez; Contreras v. U.S. Security Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006). Where material issues of fact which might support a jury finding of bad faith are in dispute, summary judgment is improper. See Berges, 896 So.2d at 680-81.

In entering summary judgment for State Farm, the trial court concluded as a matter of law that State Farm could not have done more towards settling the claim against Ms. Mills and that State Farm adequately advised her of the possibility of an excess verdict, and of steps she could have taken to minimize the risk of a substantial money judgment. Given the unique factual circumstances of this case, this was error.

Considering all relevant evidence in a light most favorable to the appellant, as we must, we are persuaded that genuine disputes of material facts were present and precluded summary judgment. We therefore reverse the summary judgment, and remand for further proceedings.

REVERSED and REMANDED.

WOLF and WETHERELL, JJ., concur.


author: LEVINE, J. WARNER, J.,

text:
    Jewel GRIER, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D08-1425, 4D08-2431.
    District Court of Appeal of Florida, Fourth District.
    Dec. 23, 2009.
    Rehearing Denied March 5, 2010.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Sr. Assistant Attorney General, West Palm Beach, for appellee.
   LEVINE, J.

The issue presented is whether the trial court erred by allowing similar fact evidence from two other collateral victims and whether it became an impermissible feature of the trial.

Grier was charged by information with seventeen counts, including lewd or lascivious molestation, lewd or lascivious conduct, attempted sexual battery, felony battery, battery, and sexual battery. The charges arose out of a physical relationship that Grier had with three teenage girls.

The trial court severed the three counts involving one victim, M.R., and stayed the remaining counts involving the other victims. Prior to trial, the State made an ore tenus motion to present testimony from Grier’s other alleged victims, L.R., L.H., and P.H., as Williams rule witnesses. The trial judge ruled that there were an “overwhelming number of points of similarity” between the testimony of the victim and the proffered Williams rule witnesses. Specifically, the trial court noted the following similarities: all four met Grier through their association with the Jehovah’s Witnesses; each girl started her “intimacy” with the defendant between the ages of fourteen and seventeen; Grier made comments on each girl’s body; Grier was a family friend of each girl (except L.H.); each girl worked with Grier in some capacity; each girl testified that Grier touched her throughout her body; and the alleged molestations happened at both Grier’s house and the girls’ houses. Over Grier’s objection, the witnesses were permitted to testify.

At trial, M.R. testified that she first met Grier when she was about seven or eight years old. Grier worked with M.R.’s parents, and when M.R. was about thirteen years old, Grier temporarily moved into her family’s home. M.R., L.R., and L.H. would “hang out” with Grier. M.R. considered Grier to be like an “older brother.” He would counsel her on “everything,” including her relationships, her looks, and her clothing.

M.R. told the jury in detail of Grier’s inappropriate conduct. One evening, M.R. was asleep in a hotel and awoke when Grier began rubbing her arms, back, and buttocks. Some weeks later, M.R. was watching television at Grier’s house, and Grier abruptly started to kiss her. In yet another incident, M.R. explained that L.H. and Grier’s brother watched as Grier began to rub and kiss M.R. on the sofa. At some point, Grier went to M.R.’s house and started rubbing M.R.’s vaginal area and kissing her thighs. These encounters continued for several weeks. M.R. explained that her encounters with Grier ended after she spent time with her peers and realized that Grier’s behavior was wrong.

M.R. testified that Grier would kiss and fondle L.H. in her presence, and she related stories that Grier told her regarding L.H. Grier told M.R. that he rubbed his penis on L.H.’s body and ejaculated on her neck. M.R. also explained that Grier kept records where he would “rate” girls based on their looks, character, personality, and spirituality. One of Grier’s records stated that M.R. was the “hottest thing on the planet” and asked rhetorically if he would “let things go with just a scratch or a sniff,” i.e., whether he would pursue a more intimate sexual relationship with M.R.

Following M.R.’s testimony, the State presented the testimony of the two Williams rule witnesses, L.R. and L.H. L.R. testified that she met Grier at the age of ten when Grier started working with her mother. L.R. explained that she looked up to and trusted Grier as a devout member of her faith. Grier told L.R. she was “not as pretty” as M.R. and L.H., but he told L.R. he would be her “first kiss.” During summer 2000, when L.R. was seventeen, Grier “[ljifted [her] bra up, started kissing [her] breasts, kissing [her] on the mouth, on [her] thighs, [and her] stomach.” Grier also tried to place L.R.’s hand on his penis. Grier repeatedly touched, rubbed, and kissed L.R. over several weeks.

L.H. testified that she started working with Grier when she was fourteen years old. L.H. and Grier developed a friendship that extended beyond work. Grier spoke to L.H. about relationships and how to get a person “to fall for you.” He frequently commented on L.H.’s clothing, advising her to wear tighter shirts. When L.H. started working full-time with Grier in 2000, the relationship became more intimate. Grier made advances on L.H., including placing his tongue in L.H.’s bellybutton, looking at L.H.’s brassiere, touching various parts of her body, and placing her hands on his genitals. Grier tried to penetrate L.H.’s vagina and anus with his finger. Grier masturbated in front of L.H. on multiple occasions. L.H. testified that she did not have knowledge of Grier’s interactions with M.R. but stated that she knew Grier kept records about other women.

We review the trial court’s admission of Williams rule evidence for an abuse of discretion. Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003). The trial court admitted the collateral crimes evidence under section 90.404(2)(a), Florida Statutes, permitting admission of prior acts as proof of motive, opportunity, intent, knowledge, or absence of mistake. The statute tests the relevancy of collateral crime testimony, albeit within strict guidelines. Hewing v. State, 513 So.2d 122, 124 (Fla.1987). Even if a trial court finds that the collateral crime evidence is admissible under section 90.404(2), the court must also take a second step and weigh the danger of unfair prejudice against the probative value of the evidence. § 90.403, Fla. Stat. (2008); McLean v. State, 934 So.2d 1248, 1256 (Fla.2006). If the danger of unfair prejudice “substantially outweighs” the probative value, the trial court must exclude the evidence. § 90.403, Fla. Stat. (2008).

In this case, the trial court found that Grier’s conduct took place during the spring and summer of 2000 on a handful of occasions with each girl. The trial court further found that there were an “overwhelming number of points of similarity, and very few points of dissimilarity” between the victim’s testimony and the Williams rule witnesses’ testimony. Specifically, the court below noted roughly seven or eight points of similarity between M.R.’s testimony and the proffered testimony of L.R. and L.H. The only distinction noted by the trial court was that Grier was not a friend of L.H.’s family, in contrast to the close relationship Grier had to M.R. and L.R.’s parents.

Grier argues that the trial court erred by allowing L.R. and L.H. to testify because their statements included allegations of “kissing and touching their bare breasts.” He also objects to testimony from L.H. as to attempted digital insertion in her genitalia, which Grier did not attempt on M.R.

“A collateral crime proven by similar evidence does not need to be absolutely identical to the crime charged in order to be admissible. Moreover, similar fact evidence relevant to prove a material fact other than identity does not need to meet the rigid similarity requirement applied when such evidence is used to prove identity.” Triplett v. State, 947 So.2d 702, 703 (Fla. 5th DCA 2007) (citations omitted); see also Macias v. State, 959 So.2d 782 (Fla. 4th DCA 2007). The court in Triplett found that the “similarity between the collateral act of molestation” and the charged molestation shared “numerous similarities” with the charged offense and, as such, upheld the trial court’s admission of the witness testimony as within the “broad discretion of the trial court.” 947 So.2d at 704.

Likewise, in Macias, the defendant was a supervisor in a drug court program who offered special assistance to participants in exchange for sexual favors. At trial, the victim testified to exchanging sexual favors for leniency, while the collateral witness did not perform any sexual acts, despite the defendant’s request and offer in exchange. The court found the collateral evidence to be sufficiently similar despite the lack of sexual contact in the collateral incident:

Macias gained access to A.A. and A.B. in the same manner, as both of them were undergoing mandatory drug counseling under the guidance of Sherman, who in turn was supervised by Macias; both had private meetings with Macias ... in Macias’ office with no one else present; both were close in age at the time, A.A. eighteen years old, and A.B. twenty-two; the two victims resembled each other, as both had blond hair, blue eyes and were of relatively slim build; Macias had similar conversations with both where he told them that if they “took care of him” or did “what he needed [them] to do,” he would help them in Drug Court; and, lastly, Macias told both women not to tell anyone about these conversations.

959 So.2d at 785. In the present case, like Macias, many points of similarity between the charged act and collateral act exist. In that case, the variance in the extent of sexual contact between the victim and the collateral witness with the defendant did not render the collateral witness testimony irrelevant. As such, Macias suggests that variations in the degree of conduct between the charged crime and the collateral crime are not dispositive of questions of relevancy.

The First District’s opinion in Donton v. State, 1 So.3d 1092 (Fla. 1st DCA 2009), also illustrates the kinds of variations in conduct that will not defeat a claim of relevancy. In that case, the court allowed the collateral crimes evidence of the appellant “licking” and “touching” the vaginal area of a five-year-old girl, where the appellant was charged with sexual battery on a male teenager by “penile union with, or penetration of, the victim’s anus.” Id. at 1093. In the present case, the distinction between attempted digital insertion and fondling is less significant than the variation of conduct detailed in Donton.

Finally, if the differences in conduct were such that the dissimilarity to the charged crime made the evidence inadmissible, the introduction of this evidence would still be harmless as to the issue of relevancy due to the fact that L.R. and L.H. provided sufficient similar, admissible evidence. Cann v. State, 958 So.2d 545 (Fla. 4th DCA 2007). Moreover, M.R. testified at length regarding Grier’s admissions of conduct with L.H., including his attempted digital insertion and public masturbation. Grier never objected to M.R.’s testimony regarding these statements. As such, even if L.H. had not testified, the jury would still have learned of these acts.

As to the issue of unfair prejudice, Grier argues that the admission of the collateral evidence became a “feature of the trial.” The trial court needs to act as a “gatekeeper” and render evidence inadmissible when it would have a “prejudicial effect.” McLean, 934 So.2d at 1261. Collateral crime evidence becomes an impermissible “feature” where collateral act evidence “overwhelms” evidence of the charged crime and becomes “an impermissible attack on the defendant’s character or propensity to commit crimes.” Samuels v. State, 11 So.3d 413, 418 (Fla. 4th DCA 2009) (quoting Bush v. State, 690 So.2d 670, 673 (Fla. 1st DCA 1997)).

M.R.’s testimony was longer and more detailed than the testimony of both L.R. and L.H. combined. The State limited its questioning of the collateral crimes witnesses to questions regarding Grier’s mo-dus operandi. Further, the fact that multiple collateral crime witnesses testified is not per se error, where the collateral crimes are sufficiently similar and probative of material issues. Peterson v. State, 2 So.Sd 146, 156 (Fla.2009) (holding that it was not error to admit evidence of three collateral crimes, so long as the evidence was relevant and not unduly prejudicial). The supreme court has noted the following:

[I]t is not solely the quantity but also the quality and nature of collateral crimes evidence in relation to the issues to be proven that determines whether its admission has “transcended the bounds of relevancy to the charge being tried.” Indeed, this Court repeatedly has affirmed the admission of extensive collateral crimes evidence where that evidence was wholly probative of material issues.

Conde v. State, 860 So.2d 930, 946 (Fla.2003). The State made few references to the collateral witnesses in closing (all were in rebuttal), and the trial court gave cautionary instructions throughout the trial to prevent L.R.’s and L.H.’s testimony from becoming a feature. Hernandez v. State, 15 So.3d 901 (Fla. 4th DCA 2009).

For these reasons, we affirm the appellant’s convictions and sentence.

Affirmed.

FARMER, J., concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

Because the defense did not object to the testimony offered by M.R. herself as to the sexual acts which Grier performed on M.R.’s sister and L.H., I concur in the result. The graphic sexual act evidence had already come in by the time the witnesses actually testified. But for that, I would have held that the Williams rule evidence, as presented, was unduly prejudicial and dominated the trial. The sexual acts that Grier performed with the Williams rule witnesses, according to their testimony, were far more disturbing than the kissing and touching of M.R. for which Grier was being tried. Those differences would have required the court to refuse admission as Williams rule evidence. See McLean v. State, 934 So.2d 1248, 1259 (Fla.2006):

[T]he similarity of the prior act and the charged offense remains part of a court’s analysis in determining whether to admit the evidence in two ways. First, the less similar the prior acts, the less relevant they are to the charged crime, and therefore the less likely they will be admissible. Second, the less similar the prior acts, the more likely that the probative value of this evidence will be “substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” § 90.403.
The similarity of the collateral act of molestation and charged offense is a critical consideration for the trial court in conducting an appropriate weighing under section 90.403. The trial courts are gatekeepers in ensuring that evidence of prior acts of child molestation is not so prejudicial that the defendant is convicted based on the prior sexual misconduct.

Because the collateral sexual acts were far more extensive than the acts of molestation, the trial court should have limited the scope of matters to which the Williams rule witnesses could testify. Certainly, the approach that Grier used on the witnesses, as well as the victim, was consistent, and showed his method of operating. However, the court should have limited testimony regarding the specific sexual acts which far exceeded the charged offenses.

Nevertheless, because M.R. testified to all of the sexual acts "without objection, I too would affirm.

      . Ultimately, P.H. did not testify at trial.

      . We note that Grier has not challenged the relevancy of L.R.’s and L.H.'s testimony. Instead, his argument rests on the second part of our inquiry — the probative value of L.R.'s and L.H.'s testimony was, he claims, outweighed by unfair prejudice. Nevertheless, because the relevancy and prejudice issues are interrelated, we will address both parts of the inquiry.

      . In McLean, the supreme court considered whether section 90.404(2)(b), Florida Statutes, violates due process. In concluding that the statute did not run afoul of the United States Constitution or the Florida Constitution, the supreme court enumerated four nonexclusive factors for a trial court to evaluate in assessing whether unfair prejudice to the defendant substantially outweighs the probative value of evidence of prior molestations: (1) the similarity of the prior acts to the charged acts, including the location, age, and gender of the victims, and manner in which the acts were committed; (2) the temporal proximity of the prior acts to the charged conduct; (3) the frequency of the prior acts; and (4) the role of intervening circumstances. 934 So.2d at 1262. We note that the trial court considered these factors when it permitted L.R. and L.H. to testify at trial, although that court based its order admitting the testimony on section 90.404(2)(a).


author: VILLANTI, Judge.

text:
    Dwayne HOLLAND, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-3154.
    District Court of Appeal of Florida, Second District.
    Dec. 30, 2009.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

After Dwayne Holland entered a no contest plea, his counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm Holland’s conviction and sentence. However, we strike $448 in unidentified costs assessed by the circuit court and remand to the circuit court for further proceedings limited to that issue.

At sentencing, the circuit court orally imposed “$450 in court costs, $40 to the public defender’s office.” The written judgment and sentence subsequently imposed costs in a lump sum of $490. The only costs specifically identified in the written judgment and sentence were $2 for the Criminal Justice Education Fund and a $40 Indigent Criminal Defense Fee under section 27.52, Florida Statutes (2007). The circuit court provided no statutory basis for the rest of the costs. We also note that an additional “$7 charge for the DNA” was orally assessed at sentencing but was not included in the written judgment and sentence. Holland filed a motion to correct sentencing error, but the motion was deemed denied when the circuit court did not rule on it within sixty days. See Fla. R.Crim. P. 3.800(b)(1)(B). On appeal, the State concedes that the circuit court cited no statutory authority for the assessed costs.

We cannot determine whether the unidentified costs consist of mandatory costs, discretionary costs that were not properly announced at sentencing, or a combination of both. Costs cannot be imposed without citing to the statutory authority supporting assessment of such costs. McGee v. State, 963 So.2d 931, 932 (Fla. 2d DCA 2007); Sutton v. State, 635 So.2d 1032, 1033 (Fla. 2d DCA 1994). Therefore, we affirm Holland’s judgment and sentence, but we strike the $448 in unidentified costs and remand for further proceedings limited to that issue. On remand, the circuit court may again impose the stricken costs if it identifies the statutory authority for their assessment. McGee, 963 So.2d at 932. If any of the costs assessed are discretionary, the court must also provide Holland notice and an opportunity to be heard. Id.

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

WALLACE and CRENSHAW, JJ., Concur.


author: POLEN, J.

text:
    Jovan HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2982.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.
    Rehearing Denied March 3, 2010.

      Howard, Blountstown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Jovan Howard, pro se, appeals the trial court’s order adjudicating him guilty of burglary of a dwelling and sentencing him to thirty years imprisonment as an habitual felony offender. Though Howard has raised nine points on appeal, we hold that none warrants reversal by this court and affirm.

Howard was charged by information with burglary of a dwelling on February 13, 2006 for events occurring on August 28, 2003. Howard chose to represent himself at a jury trial. The victim of the burglary testified regarding the events of August 28, 2003. On that date, the victim lived in a home on Oak Tree Drive in Fort Lauder-dale with her husband and three children. The victim was the last person to leave on that day, and she recalled that the home was neat and that she had locked the doors as she did regularly. She returned home around one o’clock after receiving a phone call from her son. When the victim arrived, the police were at her home with her son and some of his friends. The master bedroom and another bedroom had been completely messed up — drawers were pulled out from dressers and their contents dumped onto the floor. Jewelry and a coin collection were missing from the home. The victim estimated the value of the coin collection to have been between four and five thousand dollars and the value of the jewelry to have been five thousand dollars. Also, the victim noticed that a sliding glass door had been pried open and damaged and that a curtain next to the door had been stained by blood. The victim had no personal knowledge of the person who broke into her home, had never met Howard, and had never given Howard permission to enter her home.

Deputy Kevin Lanham arrived at the scene to take a swab of the blood stain on the curtain. Lanham took the swab to the lab located in the courthouse. A DNA specialist with the Broward Sheriffs Office crime lab testified that she received the swabs, confirmed the presence of blood, and sent them to a Bode Technology laboratory for further analysis. The specialist later received a DNA profile for the sample from the Bode Technology laboratory and ran a DNA analysis on an oral swab from Howard who was already in state custody. The specialist determined that the blood sample taken from the crime scene and Howard had the same DNA profile.

A DNA analyst from Bode Technology explained that when she is done with the testing, she places the swabs back in the envelope, and seals and signs the envelope. She clarified that in this case, her colleague signed the sealed envelope in her presence. Howard objected on hearsay grounds, and the trial court overruled the objection.

Howard’s wife testified that Howard was home with her on the day of the burglary. The jury found Howard guilty of burglary of a dwelling, and the trial court sentenced him to thirty years imprisonment.

Howard first argues the trial court erred in providing the jury with the original information instead of the amended information. There is no indication in the record that the jury received either an amended or an original information. Furthermore, Howard’s reliance on Wilcox v. State, 248 So.2d 692 (Fla. 4th DCA 1971), is misplaced. In Wilcox, this court held, “The filing of an amended information which purports to be a complete restatement of an offense has the effect of vitiating the original information as fully as though it had been formally dismissed by order of court.” Id. at 694. Here, the State amended the information for the sole purpose of adding Howard’s alias.

The next two issues raised involve the trial court’s instructions to the jury. First, Howard contends the trial court committed fundamental error in providing the jury with incorrect written instructions regarding the elements of burglary because the instructions stated that the jury must find the defendant entered the dwelling with the intent to commit a burglary. The instructions given below are not materially distinguishable from those which we have previously upheld, and thus, this is not a point of reversible error. Freeman v. State, 787 So.2d 152, 154 (Fla. 4th DCA 2001) (holding that the erroneous use of the term “burglary” in the beginning of the written jury instructions was not fundamental because any error was cured by the correct use of the term “theft” in the latter portion of the written instructions).

Another jury instruction issue raised is whether the trial court committed fundamental error when it instructed the jury that “[a]n act is committed in the course of committing if it occurs in the attempt to commit the offense or in flight, after the attempt or commission” because no evidence of Howard’s flight was offered at trial. As the State correctly points out, the contested instruction is a standard instruction having to do with the timing of the underlying offense and not consciousness of guilt. Accordingly, lack of evidence of flight is irrelevant, and Howard has failed to show that this is a point of reversible error.

The trial court denied Howard’s motion for exculpatory evidence in which he requested that the court compel the State to give Howard the cotton swab used to swab the curtain so that he could engage in independent testing. Howard now argues that the trial court erred in denying this motion and in admitting the cotton swabs into evidence when the State failed to “disclose” the swabs by physically providing them to Howard. Howard relies on cases in which the court has held that suppression by the State of evidence favorable to the defendant violates due process. E.g., Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Howard does not explain, however, how the swabs were favorable to him or his defense. As the State points out, Howard knew of the swabs well before the trial, and the swabs were available to Howard for inspection at the laboratory. Removing the swabs from the vault and providing them to Howard in jail would have created significant chain of custody issues. Had Howard arranged to have the swabs independently tested by another lab, the swabs could have been removed, but Howard never made such arrangements. On these facts, there was no error.

Howard contends the trial court erred in denying his motion to dismiss. “[A] motion to dismiss should be granted only where the most favorable construction to the State would not establish a prima facie case of guilt. And if there is any evidence upon which a reasonable jury could find guilt, such a motion must be denied.” State v. Terma, 997 So.2d 1174, 1177 (Fla. 3d DCA 2008) (quoting State v. McQuay, 403 So.2d 566, 567-68 (Fla. 3d DCA 1981)). In order to prove burglary of a dwelling in violation of section 810.02, Florida Statutes (2003), the State had to show that Howard entered a dwelling with the intent to commit an offense therein. The above stated facts, when construed most favorably to the State, establish a prima facie case of burglary against Howard. Accordingly, the trial court did not err in denying the motion to dismiss.

Below, Howard objected on hearsay grounds to the Bode Technology DNA analyst’s testimony that she witnessed her colleague initial the envelope in her presence once it was resealed. Howard now argues the trial court erred when it overruled this objection. As the State correctly points out, this was not hearsay testimony — the analyst testified to an event she personally witnessed.

During voir dire the trial judge referenced television shows like CSI: Miami and asked whether the jury understood that, in real life, DNA evidence is not processed in a day. Because Howard made no objection to the comments below, Howard’s assertion that the comments constituted reversible error may not be raised on appeal. Thomas v. State, 645 So.2d 185 (Fla. 3d DCA 1994) (holding that in order to raise prejudicial comments of trial court on appeal, defendant must object to comments when made and move for a mistrial).

Finally, Howard argues the trial court failed to properly swear in the jury. As the Florida Supreme Court has long held, if the record “imports that the jurors were in fact sworn, -without negativing the presumption that they were duly sworn, the entry is sufficient, and in better form than if the prescribed oath were recited word for word.” Garner v. State, 28 Fla. 113, 9 So. 835, 844 (1891). In the present case, after the jury was chosen, the record reads “(jury sworn)”. Thus, the record does not support Howard’s argument. For the foregoing reasons, we affirm the trial court’s judgment.

Affirmed.

STEVENSON and GERBER, JJ., concur.


author: MONACO, C.J.

text:
    Marie TATMAN and Charles Tatman, Appellant, v. SPACE COAST KENNEL CLUB, INC., et al., Appellee.
    No. 5D09-588.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 8, 2010.

      Scott R. McMillen and Allison C. McMil-len, of McMillen Law Firm, Orlando, for Appellant.
    Carlos D. Cabrera, of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   MONACO, C.J.

The sole issue before us arising out of this appeal is whether the exculpatory clause signed by the appellant, Marie Tat-man, is clear and unequivocal so that the appellee, Space Coast Kennel Club, Inc., is relieved of liability for her dog bite injury. While the able trial judge found that the clause was not ambiguous and granted the Kennel Club a summary judgment, we disagree and reverse.

Mrs. Tatman and her husband sued the Kennel Club for injuries suffered as a result of a serious bite from a dog participating in a dog show sponsored by the Kennel Club. Taken in the light most favorable to the nonmoving party, the facts reflect that Mrs. Tatman was in attendance at the show because a dog that she owned was entered as a participant in the function. Although Mrs. Tatman was not planning to show her dog herself, she was required in order to enter the dog to sign an entry form that described the dog in some detail, and then contained the following language:

I certify that I am the owner of this dog and furthermore, I(we) certify and represent that the dog entered is not a hazard to persons or other dogs. I agree to not hold SCKC or Brevard County Parks & Rec Dept, liable for any accident or injury. (Emphasis supplied).

The president of the Kennel Club testified during her deposition with respect to the exculpatory language as follows:

Q. Do you understand that this form that Ms. Tatman signed, this entry form, to mean that if her dog got injured by another dog at the show, she would agree — she agrees not to hold Space Coast Kennel Club ... liable for it?
A. Yeah.
Q. That’s what your — that’s what the kennel club is asking people to agree to, in part—
A. Yes.
Q. —is that if their dog is injured by another dog—
A. Yes.
Q. —that they won’t hold the kennel club liable?
A. Correct.

A form had to be filled out by owners for each dog participating in the show. Spectators and members of the public, however, were not required to sign a release of liability for being present during the show. Likewise, members, officers and directors of the Kennel Club were not required to sign a release form when they volunteered to work at the events. The club president further explained that the release form was specifically for those people actually entering dogs in the show, even though the dogs were frequently not shown by their owners. For instance, Mrs. Tatman’s dog was to be shown by her adult daughter. Thus, while dog owners certify on the form that their dog is not a danger to other dogs or persons, the owner may not even be present when the show takes place.

On the afternoon of the dog show, Mrs. Tatman, while walking in a public area of the show, was attacked by a 100-pound, non-neutered, male Akita named “Eli” that was also in the dog show. Eli was on a leash and being held by a co-defendant, Leslie Kovacs, a professional dog trainer, when he attacked. Sally Jaffe, the owner of the Akita, was standing nearby with two of her other leashed dogs, one of which was a female in heat. Eh bit Mrs. Tat-man’s left ankle when she walked between Ms. Kovacs and Ms. Jaffe, and caused the injuries that are the basis of the suit.

Mr. and Mrs. Tatman brought suit for negligence against Ms. Jaffe, Ms. Kovacs and the Kennel Club. The Kennel Club moved for summary judgment based on the exculpatory clause contained in the dog show entry form. The trial court concluded that the exculpatory clause relieved the Kennel Club of any potential liability and granted the motion. This appeal followed.

Our standard of review for a trial court’s legal determination that a release is effective to bar a negligence claim is de novo. See Cain v. Banka, 932 So.2d 575, 578 (Fla. 5th DCA 2006). Using this standard, we conclude that because the clause is ambiguous, the trial court erred in granting summary judgment.

An exculpatory clause is one that purports to deny an injured party the right to recover damages from a person negligently causing his or her injury. Cain, 932 So.2d at 578 (citing Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270 (Fla. 4th DCA 2002)). These clauses are by public policy disfavored in the law because they relieve one party of the obligation to use due care, and shift the risk of injury to the party who is probably least equipped to take the necessary precautions to avoid injury and bear the risk of loss. Loewe v. Seagate Homes, Inc., 987 So.2d 758, 760 (Fla. 5th DCA 2008); Cain, 932 So.2d at 578. Accordingly, exculpatory clauses are strictly construed against the party seeking to be relieved of liability. Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920 (Fla. 3d DCA 1998).

In addition, exculpatory clauses are enforceable only where and to the extent that the intention to be relieved from liability is made clear and unequivocal. The wording must be so clear and understandable that “an ordinary and knowledgeable person will know what he is contracting away.” Gayon v. Bally’s Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001); see also Raveson v. Walt Disney World Co., 793 So.2d 1171 (Fla. 5th DCA 2001).

A phrase in a contract is ambiguous when it is of uncertain meaning, and thus may be fairly understood in more ways than one. See Nagel v. Cronebaugh, 782 So.2d 436, 439 (Fla. 5th DCA 2001), review denied, 816 So.2d 126 (Fla.2002). In the present case the clause runs afoul of the requirement for clarity and precision. The operative language — I agree to not hold SCKC or Brevard County Parks & Rec Dept, liable for any accident or injury — fails to define whose injuries are covered in a circumstance, even though there are multiple possibilities. It does not say, for example, that injuries to the signer of the form, or to the dog, or to both are covered by the exculpation, nor does it assert an exculpation for injuries caused by the dog to third parties. Likewise, the clause does not define whether injuries incurred by the signer at the show but not associated with a dog attack (a slip and fall, for example), are covered. Because of its patent ambiguity, we conclude that an “ordinary and knowledgeable” person would not, when viewing this clause, know what he or she was contracting away. See Greater Orlando Aviation Auth. v. Bulldog Airlines, Inc., 705 So.2d 120, 121 (Fla. 5th DCA 1998).

The clause is actually most easily understood to be a release from liability for injury to a dog entered in the show, as opposed to the dog’s owner. The clause is found in an entry form for the dog, and is only signed by the dog’s owner, not by handlers, spectators, groomers or anyone else attending the show. As Mr. and Mrs. Tatman point out, if the owner is not handling the dog, or not even present at the show, there would be no reason to think that the hazy exculpatory language in the entry form applied to anything other than injury to the dog. Inasmuch as an “ordinary and knowledgeable” person would not, when viewing this clause, know what he or she was contracting away, we conclude that it was ambiguous, and that summary judgment in favor of the Kennel Club should not have been granted. See Greater Orlando Aviation Auth., 705 So.2d at 121.

Accordingly, we reverse the judgment entered in favor of the Space Coast Kennel Club and remand this case for further proceedings.

REVERSED and REMANDED.

LAWSON and JACOBUS, JJ„ concur.

      . See Delta Fire Sprinklers, Inc. v. OneBeacon Ins. Co., 937 So.2d 695, 698 (Fla. 5th DCA 2006), review denied, 6 So.3d 607 (Fla.2007).

      . Apparently, Eli had a history of aggression and in particular, of biting people's feet. After Eli was returned by a prior owner to the breeder due to the animal’s aggressive behavior, he bit the lower leg of the breeder’s next door neighbor. Instead of euthanizing Eli, the breeder gave him to Ms. Jaffe. Ms. Jaffe took Eli to training classes run by Ms. Kovacs.


author: WOLF, J.

text:
    STATE of Florida, Appellant, v. John T. GEOGHAGAN, Appellee.
    No. 1D07-5630.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 5, 2010.

      Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellee.
   WOLF, J.

The State appeals a downward departure sentence. The reasons given by the trial court for imposing a departure were invalid; therefore, we reverse and remand for resentencing within the guidelines.

Appellee pled guilty to one count of failure to comply with sexual offender requirements after twice failing to report as a sexual offender every 6 months as required pursuant to section 943.0435(14)(a), Florida Statutes (2006). The plea was not as a result of a plea bargain. Following a sentencing hearing, the trial court initially entered a downward departure sentence without reasons. Appellee then filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b), requesting written reasons for departure. The trial court conducted a hearing on the motion and entered the following written findings:

1. [Appellee] entered a plea of Guilty to the offense of Failure to Comply with Sexual Offender Requirements.
2. [Appellee] admitted that he failed to properly report to the Jacksonville Sheriff’s Office.
3. [Appellee] was convicted of Lewd and Lascivious Conduct on August 21, 1997, Case Number 1997-CF-004573.
4. [Appellee] was placed on probation for five years with general and specific conditions.
5. [Appellee] successfully completed all general and specific conditions of probation and the probation was terminated in August, 2002.
6. [Appellee] had no other criminal involvement since that date.
7. [Appellee] is married, has one child, age 15 and is gainfully employed.
8. This offense was committed in an unsophisticated manner in that [appel-lee] neglected to do what was required at the time it was required and when he attempted to correct the error he was arrested.
9. [Appellee] had numerous personal problems which obviously contributed to his neglect.
10. [Appellee] has shown remorse for his neglect which led to the commission of the offense.

A trial court may not impose a sentence that departs from the statutory guidelines “unless there are mitigating circumstances or factors present as provided in s. 921.0026.” § 921.00265(1), Fla. Stat. (2006). Section 921.0026, Florida Statutes (2006), provides a non-exclusive list of mitigating circumstances that reasonably justify departure.

In Banks v. State, 732 So.2d 1065, 1067-68 (Fla.1999), the supreme court outlined the two-step process for imposing a departure sentence. “First, the [trial] court must determine whether it can depart, i.e., whether there is a valid legal ground,” explaining “[l]egal grounds are set forth in case law and statute.” Id. at 1067 (emphasis in original). “This aspect of the court’s decision to depart is a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Id. “Second ... the trial court further must determine whether it should depart ... weighting] the totality of the circumstances in the case, including aggravating and mitigating factors.” Id. at 1068 (emphasis in original).

Here, the trial court’s reasons for departure fail step 1 of the Banks test as they constitute legally invalid reasons for departure.

First, the trial court found appellee pled guilty. However, it is well established that an open plea is not a valid reason for departure. See § 921.0026(2)(a), Fla. Stat. (providing a valid mitigating circumstance for departure is “[t]he departure results from a legitimate, uncoerced plea bargain” (emphasis added)); State v. Brannum, 876 So.2d 724, 727 (Fla. 5th DCA 2004) (finding an open plea is “not a valid reason for departure sentence where there was no plea agreement entered into between the defendant and the State.”).

Second, the trial court found ap-pellee admitted he failed to re-register as a sexual offender. However, a confession is an invalid reason for departure. Section 921.0026(2)(i) provides a valid reason for departure is that the defendant “cooperated with the State to resolve the current offense.” However, “a departure sentence cannot be based on cooperation where the assistance does not result in solving any crimes or the arrest of other persons.” State v. White, 894 So.2d 293, 294 (Fla. 2d DCA 2005) (finding invalid the trial court’s reason for departure that the defendant confessed and allowed the police to search his home).

Third, the trial court noted appel-lee’s underlying conviction for lewd and lascivious conduct. Fourth, the trial court noted he was placed on probation for 5 years. These findings are informational and do not constitute reasons for departure.

Fifth, the trial court found appellee successfully completed probation in August 2002. Sixth, the trial court found appellee had no criminal history since completion of probation. However, a “defendant’s prior record, or lack thereof’ is an invalid reason for departure because the “trial court lacks discretion to grant a downward departure sentence based on factors already taken into account by the sentencing guidelines.” State v. Stephenson, 973 So.2d 1259, 1264-1265 (Fla. 5th DCA 2008) (holding trial court’s finding that the defendant “kept his nose clean” for 14 months since his release from prison was an invalid reason for departure). See also State v. Raskiewicz, 541 So.2d 1217 (Fla. 2d DCA 1989) (finding fact that the defendant had committed no additional crimes since being placed on probation was an invalid reason for departure because it was taken into account by the sentencing guidelines).

Seventh, the trial court found ap-pellee is married, has a child, and is employed. However, “Florida courts have consistently held that family support concerns are not valid reasons for downward departure.” State v. Walker, 923 So.2d 1262, 1265 (Fla. 1st DCA 2006). See also Rafferty v. State, 799 So.2d 243, 248 (Fla. 2d DCA 2001) (concluding “it would not be good public policy for the legislature to punish those with families to support less than those without families”); State v. Bray, 738 So.2d 962, 963 (Fla. 2d DCA 1999) (stating “[w]hile we are not unsympathetic to the trial judge’s concern that incarcerating Bray may place the burden of caring for the child on the taxpayers of this state, such a consideration cannot be employed in determining whether one defendant will be incarcerated while another will be given a nonincarcerative sentence”); State v. Warren, 629 So.2d 1014, 1015 (Fla. 4th DCA 1993) (listing the fact that the defendant had an elderly mother who needed his support as one of several insufficient reasons for downward departure).

Eighth, the trial court found this offense was “committed in an unsophisticated manner in that [appellee] neglected to do what was required.” Tenth, the trial court found appellee showed remorse. Section 921.0026(2)(J) provides as a mitigating factor for downward departure that “[t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” However, “[a]ll three components—that the crime was committed in an unsophisticated manner, that the crime was an isolated incident, and that the defendant has shown remorse—must be present in order for a downward departure sentence to be imposed under the statute.” State v. Gaines, 971 So.2d 219, 220 (Fla. 4th DCA 2008) (citing State v. Ayers, 901 So.2d 942, 945 (Fla. 2d DCA 2005)).

Here, the court failed to find the second element of section 921.0026(2)(j) was present, that the incident was isolated. Furthermore, the record does not support such a finding. Section 943.0435(14)(a), which requires that “[a] sexual offender must report in person each year during the month of the sexual offender’s birthday and during the sixth month following the sexual offender’s birth month,” became effective on September 1, 2005. The record indicates appellee’s birthday is June 2. Therefore, he would have been required to report initially in June 2006 and every six months thereafter. Here, appellee was charged with failing to report in December 2006 and June 2007. Therefore, appellee failed to register two of the three times he was required to register between June 2006 and June 2007, which does not constitute an isolated incident. Therefore, reasons 8 and 10, that appellee committed the offense in an unsophisticated manner and showed remorse, are invalid reasons for departure because the incident was not also isolated.

Ninth, the trial court found appel-lee had numerous personal problems that contributed to his neglect. The only evidence presented concerning appellee’s personal problems was his testimony regarding his employment. During the initial sentencing hearing, appellee testified he forgot to register because he had just been laid off from work; however, during the rule 3.800(b) motion hearing, he testified he forgot to register because he had just started a new job and was working 7 days a week.

To the extent the trial court relied on evidence presented during the rule 3.800(b) motion hearing, the trial court erred. While evidentiary hearings are permissible as part of rule 3.800(b) proceedings, as stated in the Committee notes to the 1996 amendment creating rule 3.800(b), the purpose of the rule is to “correct sentencing errors in the trial court and preserve the issue.” A rule 3.800(b) motion hearing was not intended to allow appellee to present new evidence of factors justifying departure, which was his burden to demonstrate during the initial hearing. See State v. Hall, 981 So.2d 511, 513 (Fla. 2d DCA 2008) (“The defendant has the burden of presenting competent, substantial evidence to support the reason or reasons articulated for the downward departure sentence.”).

Therefore, the only evidence upon which the trial court could have properly relied was appellee’s testimony during the sentencing hearing that he forgot to register because he had been laid off from his job. This reason for departure is not one of the statutory mitigating circumstances provided in section 921.0026, nor one that appears to be consistent with legislative sentencing policies. It would be illogical to find that legislative sentencing policy intended for unemployed sexual offenders who failed to report to be punished less than those who were employed. Therefore, the trial court’s finding that appellant had numerous personal problems, based on his testimony that he had been recently laid off from his job, does not constitute a legally valid reason for downward departure.

Because the trial court failed to provide legally valid reasons for appellee’s downward departure sentence, we reverse and remand for resentencing within the guidelines. See Pope v. State, 561 So.2d 554, 556 (Fla.1990) (finding resentencing must be within the guidelines “when the initial reasons [for departure] had been reversed by an appellate court”); State v. Owens, 848 So.2d 1199 (Fla. 1st DCA 2003) (reversing and remanding for resentencing within the guidelines where the trial court’s reason for departure was invalid).

REVERSED.

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


author: BARFIELD, J. CLARK, J.,

text:
    The VALUE ADJUSTMENT BOARD OF BAY COUNTY, Appellant, v. Zane SPITZER, as Property Appraiser of Bay County, Florida, and Florida Department of Revenue, an agency of the State of Florida, Appellees.
    No. 1D09-1449.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 5, 2010.
    Benjamin K. Phipps, Phipps & Howell, Tallahassee; and Terrell K. Arline and Donald J. Banks, Office of the County Attorney, Board of Bay County Commissioners, Panama City, for Appellant.
    Larry E. Levy, The Levy Law Firm, Tallahassee, for Appellees.
   BARFIELD, J.

The Value Adjustment Board of Bay County, Florida (VAB) appeals the decision of the circuit court that the VAB did not have statutory authority to conduct evidentiary hearings for property owners who were dissatisfied with the recommendations of the special magistrates, which recommendations were received and approved by the VAB. The judgment of the circuit court is affirmed.

The Bay County VAB, pursuant to statute, appointed special magistrates to take testimony and make recommendations to the VAB as to petitions filed by taxpayers challenging the property appraiser’s assessments. After the special magistrates had completed hearing testimony and evidence and had prepared their findings of facts and conclusions of law, these were submitted to the VAB. The VAB met and approved the recommendations on March 13, 2008. The VAB notified all petitioners that it had approved the special magistrates’ recommendations, but advised them that the VAB would hold hearings on April 24, 2008, for all those wishing to appeal the decision. At the hearings held on April 24, 2008, the VAB permitted the petitioners to testify and present evidence. The VAB subsequently granted many of the petitioners’ requests.

The property appraiser then filed an assertion with the Department of Revenue (Department) of a consistent and continuous violation of law by the VAB. See § 194.036(l)(c) (providing that the property appraiser may appeal the decision of the VAB if the property appraiser asserts to the Department of Revenue that there exists a consistent and continuous violation of the intent of the law or administrative rule by the VAB and the Department agrees). The Department agreed and issued its findings. Subsequently, the property appraiser filed a complaint with the circuit court. The property appraiser alleged that “[hjaving met and reviewed the recommendations of the special magistrates and affirmed and approved same, the VAB had no statutory authority to conduct further hearings on the petitions.” The trial court granted the property appraiser’s motion for summary judgment, ruling that “it is clear the actions of the VAB were not authorized by statute.”

Property owners who are dissatisfied with the appraised value of their properties may petition the VAB to adjust those assessments. Section 194.035(1), Florida Statutes (2007), provides in part:

In counties having a population of more than 75,000, the board shall appoint special magistrates for the purpose of taking testimony and making recommendations to the board, which recommendations the board may act upon without further hearing.

The clear meaning of this statute is that the legislature has relieved the VAB, in counties having more than 75,000 people, of the task of conducting evidentiary hearings and has assigned that task to special magistrates who have specialized real estate appraisal experience as specified further in the statute. § 194.035(1), Fla. Stat. (2007). The appellant argues that this statute provides a loose and informal procedure which the VAB may supplement with additional evidentiary hearings, effectively negating the legislative directive. If the VAB may accept recommendations without further hearing, then ignore those recommendations, the statute has no meaning. Because the VAB was not authorized to conduct evidentiary hearings after the special magistrates had already done so and made recommendations (which the VAB accepted), the trial court correctly ruled that the VAB was not authorized to conduct further hearings.

We do not address whether the VAB may reject recommended findings of fact as not being supported by competent substantial evidence. That issue is not before us.

AFFIRMED.

ROWE, J., concurs in result only; CLARK, J., dissents with a written opinion.

CLARK, J.,

dissenting.

Because the statute is clear and unambiguous, and specifically allows the Value Adjustment Board (“Board”) discretion to conduct further hearings without limitation after the special magistrates have made recommendations, I respectfully dissent.

Rules of statutory construction require that we give plain meaning to the words in a statute. A fundamental principle of statutory interpretation is that legislative intent is the “polestar” that guides a court’s interpretation. Borden v. East-European Ins. Co., 921 So.2d 587 (Fla.2006). The intent of the legislature is determined by looking to the actual language of the statute. Id., (citing White v. Pepsico, Inc., 568 So.2d 886, 889 (Fla.1990)). The primary and preferred method of construction is the plain meaning of the language at issue.

Section 194.035, Florida Statutes, requires counties with populations over 75,-000 to appoint special magistrates for the purpose of taking testimony and making recommendations to the board. The section also provides that valuation boards “may” act upon those recommendations without further hearings. By authorizing the boards to act upon the recommendations without further hearings, the legislature is granting the boards discretion whether to conduct further hearings. The statute gives the board a choice: it may act upon the recommendations either with further hearing or without further hearing.

There are no words in the statute that limit or preclude the board from considering further evidence or conducting further hearings after the magistrates have taken testimony. There is nothing in the statute that binds the board to the magistrates’ recommendations. That section simply requires the special magistrate to preserve the testimony and “in making recommendations to the value adjustment board, shall include proposed findings of fact, conclusions of law and reasons for upholding or overturning the determination of the property appraiser.”

Had the legislature intended to prohibit the board from taking further testimony or argument, it would have included language to that effect. It did not. Cf, § 120.57(1)«), Fla. Stat. The court should not assume that the legislature meant to include a limitation on or preclusion of additional hearings when the legislature did not expressly so state. “Even where a court is convinced that the legislature really meant and intended something not expressed in the phraseology of the act, it will not deem itself authorized to depart from the plain meaning of the language which is free from ambiguity.” St. Petersburg Bank & Trust Co. v. Hamm, 414 So.2d 1071(Fla.1982). See also, Peter D. Webster, Sylvia H. Walbolt & Christine R. Davis, Statutory Construction in Florida: In Search of a Principled Approach, 9 Fla. Coastal L.Rev. 435, 437 (2008).

The final decision on the valuation of property is the board’s. To give the final decision-making authority to the special magistrates takes the final authority away from the board without a statutory directive.

For these reasons, I would reverse.


text:
    Samuel WATTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1670.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 11, 2010.
    Samuel H. Watts, Clermont, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Samuel Watts appeals the denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm in part and reverse in part. With respect to claims 5,13, 14, 19, 20, 21, 25 and 26, we agree with the trial court that Watts’s claims were insufficiently pled. However, under Spera v. State, 971 So.2d 754 (Fla.2007), we are compelled to reverse to allow Watts an opportunity to amend his insufficiently pled claims. On remand, Watts shall have a reasonable time, not to exceed thirty days, within which to replead those claims. In all other respects, the trial court’s order is affirmed.

AFFIRMED in part; REVERSED in part; REMANDED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Ronald FRAZIER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D09-4958.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.
    Rehearing Denied Feb. 5, 2010.
    Ronald Frazier, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Florida Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of the date of rendition of the final order, this appeal is hereby dismissed. See Fla. R.App. P. 110(b); Raysor v. Raysor, 706 So.2d 400 (Fla. 1st DCA 1998) (stating that merely mailing a notice of appeal within the required 30-day time period is not sufficient to timely invoke the jurisdiction of the appellate court).

APPEAL DISMISSED.

BARFIELD, WOLF, and LEWIS, JJ., concur.


text:
    Marie MARION, Appellant, v. ORLANDO PAIN & MEDICAL etc., et al., Appellee.
    No. 5D08-3613.
    District Court of Appeal of Florida, Fifth District.
    Jan. 8, 2010.
    Rehearing Denied Feb. 11, 2010.
    Jerry H. Jeffery, Maitland, for Appellant.
    Donald N. Williams, of Donald N. Williams, P.A., Orlando, for Appellee.
   PER CURIAM.

See Dickerson v. Feldman, 426 F.Supp.2d 130 (S.D.N.Y.2006) (holding where plaintiffs stake in controversy disappears before there has been effort to certify class action, the action must be dismissed).

AFFIRMED.

ORFINGER, LAWSON and EVANDER, JJ., concur.


text:
    Sheldon C. FELTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2340.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    Sheldon C. Felton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby afforded a belated appeal of the judgment and sentence rendered on February 11, 2009, in Duval County Circuit Court case number 16-2006-CF-13931-AXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

HAWKES, C.J., WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Brittney NEWMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-2648.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.
    Brittney Newman, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Brittney Newman is hereby afforded a belated appeal of judgments and sentences in Es-cambia County case numbers 2005-CF-006654A, 2005-CF-006794A, and 2005-CF-006795A. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

The trial court is directed to appoint counsel to represent petitioner in the appeal if she qualifies for such an appointment.

PETITION GRANTED.

BENTON, PADOVANO, and ROBERTS, JJ., concur.