author: STEVENSON, J.

text:
    Lionel JEANCHARLES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4032.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Lionel Jeaneharles was tried by jury and convicted of first degree murder. In this appeal from that conviction, the defendant challenges three of the trial court’s evidentiary rulings. More specifically, he claims the trial court abused its discretion: by permitting the State to introduce evidence that one of the alibi witnesses went to defense counsel’s office to tell his story at the urging of another, thus, suggesting that the defendant had suborned perjury (point I); by permitting the State to introduce extrinsic evidence to impeach his alibi witness on a collateral matter (point II); and by allowing the State to introduce a gruesome autopsy photograph (point III). We find no abuse of discretion in any of the challenged rulings and affirm each; we write, however, to address the issue raised in point II.

Woalle Felix was shot on Christmas Day 2003 and died four days later after life support was removed. There was no physical evidence linking the defendant to the crime, and the State’s case against him hinged upon the testimony of Alandra Houston, Felix’s fourteen-year-old girlfriend, who was present at the time of the shooting and identified the defendant as the shooter. At trial, Houston testified that, at around 9 p.m. on Christmas Day 2003, she, Felix, and Felix’s friend Samson Bruno were standing outside of her house when a light blue or gray Chevy Lumina— a car in which Houston had observed the defendant earlier that day — pulled up at an angle. Houston testified that the car’s brights were on and she was momentarily blinded. Thereafter, however, she saw the defendant jump from the car with a long gun and heard him say “what now, what now.”

Houston heard the gun cock. Bruno fled first and the defendant fired in his direction. According to Houston, the defendant then turned his attention to her, telling her to move. At the time, Felix was standing behind her. Felix fled and attempted to jump a nearby gate. The defendant fired a shot and Felix fell to the ground. Houston testified that the defendant walked toward Felix and that she then heard between two and four more shots. According to Houston, after the shots were fired, she and the defendant passed by one another, she on her way to Felix and the defendant on the way to his car.

The defendant insisted he was not the perpetrator and called long-time friend Christopher O’Neal as an alibi witness. O’Neal testified that he and the defendant grew up together, that he and the defendant frequently rode dirt bikes together, and that, on Christmas Day 2003, he, the defendant and several others had gone dirt bike riding from 10:00 a.m. to about 5:45 p.m. According to O’Neal, the defendant then left with his girlfriend, but returned at “around” 8:00 p.m. and remained with him until about 11:30 p.m.

O’Neal’s testimony on direct examination suggested that at least part of the reason that he was able to place the defendant back in his company at 8:00 p.m. on the night in question was because Deputy Williams, a neighborhood officer, had instructed the group that they could ride the dirt bikes until dark, and, when the defendant returned, it was “about dark” and O’Neal was putting the dirt bikes away. On cross, the State pursued this issue with O’Neal, eliciting testimony from O’Neal that it gets dark at 8:00 p.m., that he recalled Deputy Williams telling them earlier that day to put the bikes up at dark, and that one of things that “st[u]ck[ ] out in his mind” was that they saw Deputy Williams that day. Later, the State called Deputy Williams as a rebuttal witness to testify that he had been away on vacation on Christmas Day 2003. Defense counsel objected to the State’s calling Deputy Williams, arguing that whether the deputy was working on Christmas Day 2003 had nothing to do with the shooting and it was impermissible for the State to call the deputy for the purpose of impeaching O’Neal on a collateral matter. The trial court overruled the objection and such ruling forms the basis for point II of the defendant’s appeal.

Florida’s Evidence Code permits a party to attack a witness’s credibility by calling other witnesses to testify that “material facts are not as testified to by the witness being impeached.” § 90.608(5), Fla. Stat. (2009) (emphasis added). “An issue is collateral for purposes of impeachment by contradiction, if it cannot be introduced for any reason other than contradiction.” Griffin v. State, 827 So.2d 1098, 1099 (Fla. 1st DCA 2002) (citing Lawson v. State, 651 So.2d 713, 715 (Fla. 2d DCA 1995)). “ ‘Two types of evidence pass this test: (1) facts relevant to a particular issue; and (2) facts which discredit a witness by pointing out the witnesses] bias, corruption, or lack of competency.’” Foster v. State, 869 So.2d 743, 745 (Fla. 2d DCA 2004) (quoting Lawson, 651 So.2d at 715).

The defendant insists that whether O’Neal encountered Deputy Williams on Christmas Day 2003 is an irrelevant, collateral issue and, thus, not one that could support the calling of a rebuttal witness for the purposes of impeachment. In support of his argument, the defendant relies upon Correia v. State, 654 So.2d 952 (Fla. 4th DCA 1995), and insists that the facts in the instant case are analogous. In Corr-eia, the victim testified that the defendant fired shots at him. An eyewitness generally confirmed the victim’s version of events, but could not identify the defendant as the perpetrator. The defendant insisted he had been misidentified and called an alibi witness to testify that the defendant was at home at the time of the shooting. The alibi witness was a friend of the defendant’s mother and testified that she had spent the day at the defendant’s home watching television and talking with the defendant’s mother, that the defendant had stayed in bed, and that she had actually taken the defendant’s temperature and given him Tylenol. On cross examination, the State questioned the alibi witness concerning the program she had watched on television, where she had administered the Tylenol, and whether anyone had stopped by the home that day. Further, after the witness stated she did not recall if the defendant’s mother had cable, the State impeached her with a deposition statement wherein she had stated the defendant’s mother did have cable. Thereafter, over the defendant’s objection, the State was permitted to call the defendant’s mother as a rebuttal witness to contradict the alibi witness’s testimony regarding where she administered the Tylenol and who else was in the home that day and to call the cable company’s record custodian to testify that the defendant’s mother did not have cable on the day in question.

On appeal, the defendant continued to insist that the rebuttal testimony had been introduced to impeach his alibi witness on collateral issues — something not permitted under the rules of evidence. This court agreed, holding that where the Tylenol was administered, what the witness watched on television, and whether the defendant’s mother had cable were collateral, and not material, issues. In so doing, the majority wrote that “[mjinor discrepancies in a witness’s testimony or between witnesses can be expected in all cases”; that while the State properly cross-examined Ericksen concerning the details of where she administered the Tylenol and whether she was watching cable television, “not all of these details comprised material parts of defendant’s alibi defense”; and that Ericksen “did not testify on direct examination that the reason she remembered being at defendant’s house on the day in question was because she was watching a particular movie shown on cable television” and, thus, the “issue of watching cable television was not a material part of Ericksen’s testimony supporting defendant’s alibi.” Id. at 954, 955.

In this case, the defendant’s whereabouts at about 9:00 p.m. was clearly a critical issue — Houston claimed he was in front of her home, shooting at Bruno and Felix, and O’Neal claimed the defendant was with him. O’Neal testified that he and the defendant frequently rode their dirt bikes together and his testimony is fairly interpreted as suggesting that his memory of the defendant being in his presence at about 8:00 p.m. on Christmas Day 2003 is linked to the fact that he remembered encountering Deputy Williams on the day in question, that Deputy Williams told them to put the bikes up at dark, and, when the defendant returned, it was “around dark” and he was putting the bikes away. We, thus, find that whether O’Neal encountered Deputy Williams on the day in question was a material issue and hold that there was no abuse of discretion in the trial court’s permitting the State to call Deputy Williams as a rebuttal witness to impeach O’Neal on this point.

Having concluded that each of the issues raised by the defendant is without merit, we accordingly affirm his judgment of conviction.

Affhmed.

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


source: Caselaw Access Project

author: MAY, J.

license: Public Domain

text:
    Michael MAZZA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3324.
    District Court of Appeal of Florida, Fourth District.
    Jan. 6, 2010.
    Carey Haughwout, Public Defender, and John Pauly, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and life sentence for armed robbery. The single issue raised concerns the trial court’s denial of the defendant’s motion to suppress. We find no error and affirm.

The crime occurred at a CVS Pharmacy. When the defendant handed the merchandise to the store clerk at the check-out counter, he included a note that instructed the clerk to put all of the money from the register in a bag. At the same time, the defendant opened his shirt and showed the clerk a gun on his waistband. The clerk complied. The defendant placed the note in his pocket, took the money and merchandise, and ran out of the store.

The clerk called 911 and told the operator that the robber was a white male, about 5'6", 5'7", not too tall, sort of tannish, and wearing a gray shirt, jeans, and a New York Yankees hat. The clerk described the man’s hair as dark brown, but not long.

The lead detective developed the defendant as a suspect and compiled a photo line-up. Approximately a week after the incident, the detective took the photo lineup to the clerk. Prior to showing her the photos, he read from his card of admonitions. He told the clerk to take her time, look at all the photos, sometimes hairstyles and beards change, and asked her to be certain. He may have told her that someone was in custody.

The defendant’s driver’s license picture was in this first line-up, and all of the men looked similar. After looking at all six pictures, the clerk chose the defendant’s picture because she “felt strongly that this was the man” who robbed her, but hesitated because “the man in that photo looks heavier than the man that robbed CVS.”

The detective then compiled a second photo line-up. In the second photo lineup, the detective used the defendant’s Department of Corrections’ photo in which he appeared thinner. The photo was placed in a different position than in the first photo line-up. Thirty to forty minutes later, the detective returned to the clerk with the second photo line-up. The detective told the clerk that he had a more recent photo of the suspect. The clerk pointed to the defendant’s picture instantly, and said “that’s him.” She circled and initialed the photo with the date and time.

The State charged the defendant with robbery by a firearm. The defendant moved to suppress the lineup identification as unduly suggestive. At the hearing on the motion to suppress, the clerk testified to the above facts and identified the defendant in the courtroom as the person who robbed her. She testified that she did not remember if the same six men were in both lineups, but the defendant’s pictures were in both.

Defense counsel argued for suppression of both the in-court and out-of-court identifications. Defense counsel argued the lineups were unduly suggestive because the defendant was the only person who appeared in both lineups and because the detective may have said that a suspect was in custody and that he had more photos of the same person. Defense counsel further argued that the in-court identification was tainted by the unduly suggestive line-up identification. The trial court denied the motion.

The court found no problem with the clerk’s hesitancy regarding the first lineup because the defendant looked heavier. While the court thought that the newer lineup may have been suggestive, the clerk’s opportunity to view the subject, and her accurate description of him caused the court to find that there was no substantial likelihood of misidentification. The court found defense counsel’s arguments more appropriate for a jury argument with regard to the weight of the evidence.

At trial, the clerk identified the defendant as the armed robber and testified about the identification process. She had the opportunity to look directly at the defendant’s face. She was able to look through the window into the courtroom, where three to four men were sitting. The clerk saw the defendant sitting in a wheelchair alone, not talking to anyone and she “identified him right off’ and without hesitation. The State was able to show a video of the robbery where the defendant could be seen, but his face was not visible. The jury convicted the defendant of robbery with a firearm and found that he actually possessed a firearm during the robbery. The court adjudicated him guilty and sentenced him as a prison releasee reoffender to a term of life.

On appeal, the defendant again argues that under the two-part test in Johnson v. State, 566 So.2d 888 (Fla. 4th DCA 1990), the lineup procedure was unduly and unnecessarily suggestive because the defendant’s picture was the only picture that appeared in both lineups, and because the detective may have told the clerk that a suspect was in custody before showing her the original photo lineup. In addition, he argues, the totality of the circumstances suggested a likelihood of irreparable mis-identification where neither side presented evidence of the clerk’s description of, or opportunity to view, the subject. We disagree.

“[A] trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness, and the reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Pagan v. State, 830 So.2d 792, 806 (Fla.2002). We “must independently review mixed questions of law and fact that ultimately determine constitutional issues arising in the context of the Fourth and Fifth Amendment and, by extension, article I, section 9 of the Florida Constitution,” Connor v. State, 803 So.2d 598, 608 (Fla.2001), and must “review legal conclusions de novo.” Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003).

Florida law provides a two-part test for the suppression of an out-of-court identification: “(1) whether the police used an unnecessarily suggestive procedure to obtain the out-of-court identification; and (2) if so, considering all the circumstances, whether the suggestive procedure gave rise to a substantial likelihood of irreparable misidentification.” Fitzpatrick v. State, 900 So.2d 495, 517-18 (Fla.2005) (quoting Rimmer v. State, 825 So.2d 304, 316 (Fla.2002)).

Here, the trial court applied that two-part test. The clerk identified the defendant in both lineups although she was less certain about the identification in the first photo lineup due to his weight. The clerk immediately identified the defendant when shown the second photo lineup. The trial court specifically found nothing wrong with the clerk’s hesitancy in the first photo lineup. The court found the pictures to be similar in each lineup with no picture standing out more than another.

While the court questioned the suggestiveness of the second photo lineup because the defendant’s photo was the only one common to both, this court has previously held that the use of the same photo does not necessarily render the lineup suggestive. See Fearon v. State, 10 So.3d 146, 148-49 (Fla. 4th DCA 2009). And, even though the detective may have informed the clerk that a suspect was in the photo lineup, this alone was insufficient to classify the procedure as suggestive. See Green v. State, 641 So.2d 391, 394 (Fla.1994). Add to that the court’s finding, with which we concur, that the clerk’s opportunity to observe the defendant and her accurate description of him within minutes of the robbery insured against any likelihood of misidentification.

For these reasons, we affirm.

Affirmed,

POLEN and GERBER, JJ., concur.


author: PER CURIAM.

text:
    M.A. and L.A., Paternal Great Grandparents of O.T.S., a Child, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee.
    No. 1D09-5128.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2010.
    Nancy Jones Gaglio, Panama City, for Appellants.
    Susan Carroll, Panama City, and Michael Hunter, Panama City, for Appellee.
   PER CURIAM.

DISMISSED. Broome v. Peoples First Community Bank, 908 So.2d 1150 (Fla. 1st DCA 2005).

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


author: KAHN, J.

text:
    Octavius A. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-5254.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.

      Nancy A. Daniels, Public Defender, and Carl S. McGinnes, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Octavius Johnson appeals his conviction for robbery, contending the trial court erred in excluding one Dexter Curry from testifying on appellant’s behalf without first conducting an adequate hearing. Johnson also argues the trial court erred in denying a continuance to obtain Curry’s testimony. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Deborah Watkins, a cashier at a Dollar General in Duval County, testified she was working the till on June 13, 2007, when a customer approached with a gallon of bleach. When she opened the register, someone grabbed her from behind and took her down to the floor. Watkins remained prone until the robbers exited the store.

David Wiggins explained that he and three other men — appellant, Erwin Washington, and Dexter Curry — participated in the robbery. Wiggins asserted that after Curry grabbed the cashier, appellant Johnson told Wiggins to lift up the register tray and grab the money beneath it. Then, according to Wiggins, the four men got into appellant’s car and divided the money into shares as Johnson drove away.

Donnie Slayton, a robbery detective with the Jacksonville Sheriffs Office, interviewed Johnson on August 11, 2007. The video-recorded exchange was placed in evidence and published to the jury. During the interview, Detective Slayton had appellant view a surveillance video of the Dollar General robbery. Johnson identified himself and the other suspects on the video. Appellant claimed he went to the store to buy bleach for his mother. Johnson said he was talking to two females in the store, when, “the next thing he knew,” he saw Curry choking the cashier. Johnson said he only alerted Wiggins that the large bills were beneath the register drawer, and played no other role. Johnson asserted he did not plan the robbery, share in the proceeds, or transpoi’t anyone from the scene.

After the State rested, counsel announced his intent to present the testimony of Dexter Curry. The State argued Curry should not be permitted to testify because defense counsel did not list Curry on its witness list and the State did not have an opportunity to depose him. Defense counsel retorted that the State had been aware Curry might testify. Twice before, with the case set for trial, defense counsel had asked for an order to transport Curry from the county jail to the Duval County courthouse. Defense counsel asserted Curry’s testimony would work no surprise or prejudice to the State.

The trial court determined Curry would not be permitted to testify. Johnson, testifying on his own behalf, stated he drove to the Dollar General for some bleach on the day of the robbery. Outside, he encountered the other three suspects, then discussing the merits of robbing the store. Johnson said he did not believe these three were serious about committing the crime. After the crime developed around him, appellant said, “If you’re going to get it [the money], get it all.” Johnson recalled he then drove home alone while the other suspects ran down the street. He claimed he received nothing of the plunder.

After the defense rested, defense counsel stated Curry would have admitted that he and Wiggins — not Johnson and Washington — committed the robbery. The State conceded Curry would not be a “surprise” witness, but renewed its argument that defense counsel failed to list Curry on defense’s witness list. Defense counsel remarked he received no response to either of his requests for orders to transport, prompting an electronic search for Curry’s whereabouts. The clerk of court could not locate Curry in the county jail or the Department of Corrections; the trial court surmised Curry might be in a juvenile detention facility.

When lack of knowledge concerning Curry’s whereabouts unwound, counsel moved for a continuance to obtain Curry’s presence, asserting Curry was “a very essential witness to the case.” The court denied the motion, opining that there was no real dispute over the circumstances of Johnson’s involvement in the robbery. The jury returned a verdict finding Johnson guilty of the lesser-included offense of robbery.

ANALYSIS

We review the trial court’s decision to exclude evidence for abuse of discretion. See Welty v. State, 402 So.2d 1159, 1162-63 (Fla.1981) (noting trial court’s rulings on admission of evidence will not be disturbed unless abuse of discretion can be shown). Johnson first contends the court erred in excluding Curry’s testimony without first conducting an adequate “Richardson ” inquiry. As a result, Johnson concludes, the court deprived him of his rights to due process of law and to present witnesses on his behalf.

Florida Rule of Criminal Procedure 3.220(d)(1)(A) requires defense counsel to “furnish to the prosecutor a written list of the names and addresses of all witnesses the defendant expects to call as witnesses at the trial.” When a party fails to comply with the rule, the trial court is to determine whether such failure has prejudiced the opponent, but “only after the court has made adequate inquiry into all of the surrounding circumstances.” Richardson v. State, 246 So.2d 771 (Fla.1971). Known as a Richardson hearing, this inquiry proceeds in two steps. The court must first determine whether a discovery rule has been violated. Curry v. State, 1 So.3d 394, 397 (Fla. 1st DCA 2009). If a violation is found, the court will then assess “whether the ... violation was inadvertent or willful ... trivial or substantial, and ... what effect, if any, did it have upon the ability of the [opposing party] to properly prepare for trial.” Id. Although a trial court has discretion on how to remedy a discovery violation, whether to hold a Richardson hearing is not discretionary. See id. at 398 (stating “party who has established the existence of a discovery violation is entitled to a hearing as a matter of law”).

We begin by reviewing the context that first occasioned the Richardson framework and conclude that this case does not raise the same fundamental due process consideration that so preoccupied the court in Richardson. Specifically, the Richardson court was concerned that the State’s noncompliance with a rule of procedure might prejudice the “ability of the defendant to properly prepare for trial.” Richardson, 246 So.2d at 775. Accordingly, the supreme court resolved that State’s evidence that might otherwise be admitted on the shoulders of a procedural violation would be subject to a more searching inspection of admissibility, defined by the now familiar two-part analysis. In this case, where the trial court excluded a defense witness as a result of defense counsel’s improvidence, one does not encounter the prospect that the State garnered a conviction with the aid of prosecutorial deceit, surprise, or the like. Cf. Scipio v. State, 928 So.2d 1138, 1145 (Fla.2006) (holding failure to conduct Richardson hearing was harmful error where State “calculated” not to inform the defense of an “important and dramatic change in testimony of its medical examiner’s investigator,” and noting “policy of avoiding trial by ambush or surprise has even greater application in the criminal context, where ... the obligation of the State to see that justice is done is much greater”); Curry, 1 So.3d at 397 (holding failure to hold Richardson hearing was reversible error where State did not disclose substance of -witness’s “surprise” testimony). We examine appellant’s claims with this in mind.

We first look to exactly what happened (and did not happen) here. We are not persuaded defense counsel provided the court with the sort of information necessary to conduct a comprehensive Richardson hearing, even assuming such might have been appropriate. Most significantly, defense counsel neither proffered Curry’s testimony, nor explained in any meaningful detail the content of that expected evidence. In fact, defense counsel offered no preview of Curry’s intended testimony when the State objected to defense counsel’s intent to call Curry as a witness. The defense first revealed its intent after the close of State’s evidence and denial of a motion for judgment of acquittal. Only just before jury charge, and after the defense rested, did counsel offer a brief statement regarding the purpose of Curry’s testimony, asserting, “His proffered testimony would be ... that it was he and David Wiggins who committed the robbery and that ... Johnson did not.” This cursory preview of Curry’s testimony, largely devoid of substantive content, provided no basis for the court to assess what effect, if any, the defense’s discovery violation had upon the State’s ability to properly prepare for trial.

In addition, we examine the effect of Curry’s unavailability on a hypothetical Richardson hearing. Florida Rule of Criminal Procedure 3.220(n)(l) authorizes a trial court to exclude evidence as a sanction for a violation of the discovery rules, to be imposed when there is no other adequate remedy. See Casseus v. State, 902 So.2d 294, 295 (Fla. 4th DCA 2005). Johnson relies upon McDuffie v. State, 970 So.2d 312 (Fla.2007), as an instructive authority on this question. In that case, the trial court excluded the testimony of a defense witness whose name defense counsel omitted inadvertently from the guilt-phase witness list. Id. The State failed to assert it would suffer any substantial procedural prejudice if the witness testified, and the trial court made only a limited inquiry into whether the violation prejudi-cially affected the State’s ability to prepare for trial. Id. The supreme court held that the trial court erred when it excluded the testimony of the witness without considering less extreme alternatives, such as a brief delay for a deposition, continuance, or postponement of the testimony until the end of the defense case. Id. at 320-22.

Superficially, McDuffie might support a finding of error in this case. Indeed, the court below did not consider any alternatives short of excluding Curry as a witness entirely. We cannot, however, elide the two critical facts that distinguish McDuffie from the case at bar: (1) the witness in the former prosecution was physically present in the courthouse when the ruling to exclude him was rendered; and (2) his testimony was proffered in considerable detail. See id. at 320-21. Here, by defense counsel’s own admission, Dexter Curry was unavailable and unsummoned to testify, his whereabouts unknown to either counsel or the court. With Curry unavailable, the court could not even begin to consider a less severe alternative to total exclusion of the witness. McDuffie, we believe, should be construed as predicated upon the availability of the excluded witness and the possibility that a lesser sanction could cure any procedural prejudice.

Defense counsel did not include Curry’s name on the witness list furnished to the State and thereby violated Florida Rule of Criminal Procedure 3.220(d)(1)(A). Assuming, exclusion of such a witness should have occasioned an inquiry as required by Richardson, we view the factual circumstances of the present case as rendering such inquiry impractical at best. In the absence of any proffered testimony, the trial court could not determine the degree of prejudice inuring to the detriment of the State. Curry’s unavailability prohibited the trial court from fashioning a lesser sanction of any determinacy, thus further mooting the need for a Richardson inquiry. Given the context here of a defense violation, failure to proffer, and unavailability of the witness, the court did not abuse its discretion in failing to hold a Richardson hearing.

We review the denial of a motion for continuance for abuse of discretion. See Holmes v. State, 992 So.2d 328, 328 (Fla. 3d DCA 2008). A defendant seeking continuance must show: (1) prior due diligence to obtain the witness’s presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available to testify; and (4) that the denial of the motion caused material prejudice. See Geralds v. State, 674 So.2d 96, 99 (Fla.1996).

The State did not stipulate to defense counsel’s proffer. Even assuming a proffer, though, Curry’s testimony would not differ in any significant respect from that already offered by the State’s witnesses and by Johnson himself. Importantly, we cannot conclude that Curry’s evidence would have impaired the State’s case. Mere encouragement for another to commit a criminal act may be criminal in and of itself when, as here, such encouragement is coupled with a jury instruction on the law of “principals.” See Fla. Standard Jury Instructions (Crim.), 665 So.2d 212, 214 (Fla.1995) (stating defendant is a principal if she had “conscious intent that the criminal act be done” and “said some word which was intended to and which did incite, cause, encourage, assist or advise [another] to actually [commit] ... the crime”). Given the foregoing instruction, we do not see how Curry’s testimony would have been “substantially favorable.”

Curry, moreover, was not even available to provide the allegedly exonerating testimony, meaning Johnson cannot satisfy the third of the Geralds elements, either. Defense counsel did not subpoena Curry and was unable to procure his attendance by requests for an order to transport. This inability to locate Curry would be sufficient in itself to warrant the denial of Johnson’s motion, see Holmes v. State, 992 So.2d 328, (Fla. 3d DCA 2008) (holding trial court did not abuse its discretion in denying motion for continuance where defendant could not locate witness he wished to testify), but also speaks to defense counsel’s lack of prior diligence in obtaining the witness’s presence. Finally, we will not overlook that the motion came only after the State had presented its case and rested. The timing alone of such a motion raises many questions, none of which are addressed by appellant. We find no abuse of discretion in denial of the motion.

AFFIRMED.

LEWIS and WETHERELL, JJ„ concur.


author: WEBSTER, J.

text:
    Bobby SHACKLEFORD, Appellant, v. CTL DISTRIBUTION and Gallagher Bassett Services, Appellees.
    No. 1D09-1257.
    District Court of Appeal of Florida, First District.
    Jan. 12, 2010.

      Laurie T. Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, and Susan W. Fox of Fox & Loquasto, P.A., Tampa, for Appellant.
    Kevin E. Leisure and Curt H. Harb-smeier of Harbsmeier DeZayas, LLP, Lakeland, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, claimant seeks review of a final order awarding costs to the employer and carrier. Claimant complains that the motion to tax costs should have been denied as untimely and that, in the alternative, the judge of compensation claims erroneously rejected claimant’s objections to specific cost items. We affirm.

A final order denying claimant’s petition seeking permanent total disability benefits was filed on November 2, 2007. The employer and carrier did not file their motion seeking to tax costs until November 12, 2008, more than a year later. Claimant objected to the motion as untimely. The judge of compensation claims rejected claimant’s objection, stating that “[tjhere is no specific mandate within [chapter] 440, Florida Statutes, requiring that a cost petition be filed within a finite period of time. Nor is there a timeframe imposed in Chapter 60Q-6 Rules of Procedure for Workers’ Compensation Adjudications.” He concluded that, “[w]ithout specific authority granted by rule or statute, [he] ha[d] no authority to reject the Employer/Carrier’s Motion to Tax Costs.”

The judge of compensation claims was correct. There is nothing in either section 440.34(3), Florida Statutes (2007) (which directs the assessment of costs against the nonprevailing party), or in Florida Administrative Code Rule 60Q-6.124 (2007) (which implements that provision) that purports to place a time limit on the filing of a motion seeking to tax costs. The judge was also correct that he lacked the authority to impose a time limitation absent explicit authority provided by either a statute or a rule. See Villazano v. Horace Bell Honey Co., 928 So.2d 515, 516 (Fla. 1st DCA 2006) (holding that, absent explicit authority provided by either a statute or a rule, a judge of compensation claims may not set a time limitation for filing a verified petition seeking attorney’s fees). See generally Farhangi v. Dunkin Donuts, 728 So.2d 772, 773 (Fla. 1st DCA 1999) (“[a] JCC has no authority or jurisdiction beyond what is specifically conferred by statute”); McFadden v. Hardrives Constr., Inc., 573 So.2d 1057, 1059 (Fla. 1st DCA 1991) (“[u]nlike a court of general jurisdiction, a judge of compensation claims does not have inherent judicial power but only the power expressly conferred by chapter 440”). Accordingly, we affirm the refusal to reject as untimely the motion seeking to tax costs. However, those entities possessing the power to impose such a time limit might wish to consider the advisability of doing so, as did our supreme court in civil cases by the adoption of Florida Rule of Civil Procedure 1.525 (which requires that a motion seeking to tax costs be served “no later than 30 days after filing of the judgment ... or the service of a notice of voluntary dismissal”). See, e.g., § 440.45(4), Fla. Stat. (2009) (giving the Office of the Judges of Compensation Claims the power to “adopt ... procedural rules applicable to workers’ compensation claim resolution”).

Claimant also complains that the judge of compensation claims erroneously rejected his objections to specific cost items. We conclude that claimant has failed to demonstrate an abuse of discretion by the judge of compensation claims as to the specific items challenged. See Morris v. Dollar Tree Store, 869 So.2d 704, 707 (Fla. 1st DCA 2004) (stating that rulings of a judge of compensation claims as to specific cost items are subject to an abuse of discretion standard of review on appeal) (citing McArthur Farms v. Peterson, 586 So.2d 1273, 1276 (Fla. 1st DCA 1991)). Accordingly, we affirm as to this issue as well.

AFFIRMED.

PADOVANO and ROWE, JJ., concur.


author: POLEN, J.

text:
    Roderick B. WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4556.
    District Court of Appeal of Florida, Fourth District.
    Jan. 13, 2010.
    Rehearing Denied Feb. 10, 2010.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   POLEN, J.

Appellant, Roderick B. Woods, appeals the trial court’s denial of his motion to suppress evidence and order adjudicating him guilty of possession of a firearm by a convicted felon, possession of ecstasy, possession of cocaine, and possession of less than twenty grams of marijuana. We affirm.

Woods was arrested after police officers responding to an anonymous tip regarding a homicide in Woods’ apartment building found drugs and a firearm inside Woods’ bedroom. After receiving the tip, three officers went to Woods’ apartment. An officer knocked on the apartment door, and a woman answered. An officer asked the woman if others were in the apartment, and the woman said there were. When the other individuals appeared at the door, the officers informed them that they were investigating a homicide and asked the individuals to step outside to talk. The individuals complied without resistance. At no point did any of the officers draw a gun, taser, or other weapon, nor was their request made in a loud or intimidating fashion.

Woods exited the apartment with no shirt on and subsequently asked if he could go inside and get a shirt. Officer Nubin replied that he could, but that she would have to accompany him for officer safety reasons. Officer Harris asked, “Are you sure it’s all right if we follow you back to your room?” and Woods replied, “Yes.” Harris and Nubin followed Woods to his room and saw in plain sight a bag of marijuana and a bag of what appeared to be crack cocaine. Upon executing a search warrant, marijuana, cocaine, and firearms were recovered. Up until the point when the officers saw marijuana in his room, Woods was free to leave.

The trial court found the encounter was consensual and denied Woods’ motion to suppress. Thereafter, Woods pled no contest to the charges and the trial court sentenced him to ninety days imprisonment with credit for seventy-three days served. Woods now timely appeals.

Woods argues the trial court erred in denying his motion to suppress because the encounter was not consensual. Specifically, Woods contends that when the officers asked the individuals to step outside the apartment, the encounter evolved into an investigative stop. The State replies that there was no error because the officers’ account was credible and showed the encounter was consensual.

In reviewing a trial court’s determination as to a motion to suppress, this court must defer to the trial court’s factual findings and review any legal conclusions de novo. Backus v. State, 864 So.2d 1158, 1159 (Fla. 4th DCA 2003). In Popple v. State, 626 So.2d 185 (Fla.1993), the Florida Supreme Court described the different levels of police stops:

There are essentially three levels of police-citizen encounters. The first level is considered a consensual encounter and involves only minimal police contact. During a consensual encounter a citizen may either voluntarily comply with a police officer’s requests or choose to ignore them. Because the citizen is free to leave during a consensual encounter, constitutional safeguards are not invoked.
The second level of police-citizen encounters involves an investigatory stop as enunciated in Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). At this level, a police officer may reasonably detain a citizen temporarily if the officer has a reasonable suspicion that a person has committed, is committing, or is about to commit a crime. In order not to violate a citizen’s Fourth Amendment rights, an investigatory stop requires a well-founded, articulable suspicion of criminal activity. Mere suspicion is not enough to support a stop.
... [T]he third level of police-citizen encounters involves an arrest which must be supported by probable cause that a crime has been or is being committed.

Id. at 186 (internal citations omitted).

Woods likens the present case to cases in which the court has held that an officer’s use of authority to get an individual to remove his hand from his pocket or to exit a vehicle transformed an ordinary stop into a temporary detention and thus amounted to an illegal seizure. Woods relies heavily on Popple in which a police officer approached a legally parked car in a desolate area and asked the occupant to exit the vehicle. Id. at 186. When the occupant opened the door, the police officer saw a cocaine pipe on the floorboard in plain view. Id. The occupant was arrested and charged with possession of cocaine and possession of drug paraphernalia. Id. The Florida Supreme Court held:

Whether characterized as a request or an order, we conclude that Deputy Wil-moth’s direction for Popple to exit his vehicle constituted a show of authority which restrained Popple’s freedom of movement because a reasonable person under the circumstances would believe that he should comply.
Therefore we hold that for Fourth Amendment purposes Popple did not consent to exiting his vehicle, but rather was seized by virtue of submitting to Deputy Wilmoth’s show of authority. Because Deputy Wilmoth did not have the reasonable suspicion necessary to authorize an investigatory stop, the initial detention was illegal and the resulting acquisition of the cocaine and drug paraphernalia was the fruit of an unconstitutional seizure.

Id. at 188 (footnote and internal citation omitted).

Popple is not dispositive of the present case. First, Popple is factually distinguishable. In Popple, an officer asked the driver of a legally parked vehicle to step outside his vehicle because the driver was acting nervously. Here, the officers responded to an apartment after receiving a tip in a homicide investigation, the individuals inside the apartment willingly exited to speak with the officer, and the officers ultimately gained Woods’ permission to enter the apartment. Second, Popple does not negate the “totality of the circumstances” approach adopted by the United States Supreme Court in United States v. Mendenhall, 446 U.S. 544, 100 S.Ct. 1870, 64 L.Ed.2d 497 (1980), where the Court held:

[A] person has been “seized” within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave. Examples of circumstances that might indicate a seizure, even where the person did not attempt to leave, would be the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or.tone of voice indicating that compliance with the officer’s request might be compelled.

Id. at 554, 100 S.Ct. 1870.

State v. Triana, 979 So.2d 1039 (Fla. 3d DCA 2008), is not only factually similar to the instant case but properly considers the factors considered in Mendenhall. In Triana, four officers approached the gate of Triana’s two-acre estate at 9 p.m. after receiving information from a confidential source that there was marijuana growing at the residence. Id. at 1041. Triana ultimately gave his consent for the officers to search the property and allowed the officers in his home. Id. Once inside the home, the officers noticed a second building and received Triana’s written consent to their search of that structure. The officers recovered 103 pounds of marijuana. Id. at 1042.

Triana moved to suppress the evidence arguing that the encounter was an illegal seizure. The Third District reversed the trial court’s suppression of the evidence. Id. at 1042-45. First, the court explained that no level of suspicion was required before the officers arrived at the gate and questioned Triana. Id. at 1043. Such practice is commonly referred to as a “knock and talk” and is “a legitimate investigative procedure so long as the encounter does not evolve into a constructive entry.... As such, a knock on the door and subsequent discussion is a purely consensual encounter, which officers may initiate without any objective level of suspicion.” Id. (citations omitted). The court noted that the fact that the initial questioning occurred outside of the residence supported a conclusion that Triana was not in custody because even an interview inside one’s home is not ordinarily considered a custodial interrogation. Id. Finally, the consensual encounter between Triana and the officers never became a “constructive entry” because the officers did not employ overbearing tactics, such as drawing weapons, threatening Triana, or raising them voices, that would have coerced Triana out of his home. Id. at 1044.

Like the Third District in Triana, we have considered the Mendenhall factors and find no Fourth Amendment violation in the present case. The officers never acted in a threatening manner, never drew their weapons, and never raised then-voices or ordered the residents to do anything against their will. Accordingly, we affirm.

Affirmed.

MAY and GERBER, JJ., concur.

      . While the testimony of the witnesses varied greatly as to what occurred after the officers knocked on the apartment door, we must accept that version offered by the officers, whom the trial court found to be more credible.


author: DAVIS, Judge.

text:
    Vandy E. PAULK, Appellant, v. Ronald L. PAULK, Appellee.
    No. 2D08-5043.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2010.

      Joseph C. Hood, Tampa, for Appellant.
    Ronald L. Paulk, pro se.
   DAVIS, Judge.

Vandy E. Paulk, the Mother, challenges the trial court’s final judgment of modification of custody vacating the rotating custody arrangement of the final judgment of dissolution and awarding primary residence to Ronald L. Paulk, the Father. Because the Father’s petition for primary residence was not before the court at the time of the hearing, the trial court erred in granting such relief. We reverse.

The marriage of the Mother and the Father was dissolved by final judgment on June 25, 2003. The final judgment of dissolution incorporated the terms of the marital settlement agreement, which included a rotating custody plan. The agreement also included a provision that “both parents agree not to change the children’s schools or move the children from the area without the other parent’s permission.”

In June 2004, the Father agreed to sign a consent allowing the Mother to move with the children to Highlands County. Because of the distance between the two residences, this necessarily ended the rotating custody plan and created a de facto primary residence with the Mother — relegating the Father’s role to that of the visiting parent. On July 15, 2005, the Father filed a motion to enforce the final judgment of dissolution. By this motion, he asked that the court order the Mother to return to Pasco County with the children so that the rotating custody plan could be followed. In response to this motion, the Mother filed a petition to modify the final judgment, asking that the trial court name her the primary residential parent and establish a visitation schedule for the Father. She also requested that she and the children be allowed to continue to reside in Highlands County, alleging that a substantial change had occurred when, with the Father’s written consent, she moved the children to Highlands County, where they had lived for more than a year.

On April 27, 2006, the Father filed a petition to modify custody, asking that he be named the primary residential parent. Because the Father failed to obtain proper service of his pleading on the Mother, he subsequently filed an amended petition to modify custody. However, he again failed to obtain proper service.

The case proceeded to final hearing in August 2007. At the outset of that hearing, a discussion was held as to the status of the Father’s petition to modify custody. In reviewing the pleadings, the trial court instructed the Father, who appeared pro se, as follows:

[T]here is no summons now that has been successfully served. Therefore, while you are free to properly have a summons issued to her individually, to be served on her individually or a resident of her household that is considered lawfully of age, I can’t proceed today on your amended supplemental petition to modify custody and time sharing.
That does, however, leave us with whether she’s going to succeed — as I recall, she’s trying to move or moved— as to whether or not she’s going to succeed.

The trial court further advised the Father, “[I]f she doesn’t win, then ya’ll are left where you were, unless you succeed at a later time with your amended supplemental petition.” The trial court subsequently clarified the purpose of the hearing, stating, “Now I’m going to address what’s going to happen with the kids and your respective contacts, which is both the Court considering [the Mother’s] request for there to be a change and [the Father’s] request to enforce what was in place.” Based on these comments, we conclude that the Father’s petition for modification was not before the trial court at the hearing, but rather that the Mother’s petition and the Father’s motion to enforce the rotating custody plan were the only issues to be tried.

The trial court proceeded to take testimony on the Mother’s petition to modify the final judgment. In doing so, the Father was able to present to the court testimony regarding certain deficits in the care the Mother was providing to the children. At the conclusion of the hearing, the court made certain factual findings regarding the Mother’s poor parenting of the children. Then, despite the court’s earlier comments, it named the Father primary residential parent and set out the visitation schedule for the Mother, citing Wade v. Hirschman, 903 So.2d 928 (Fla.2005), as instructive. In its written final judgment, the trial court did not specifically deny the Mother’s petition to modify or the Father’s motion to enforce the final judgment. Rather, it appears that the trial court concluded that by the Mother raising the issue of modifying the final judgment of dissolution regarding the rotating custody plan, she opened the door for the court to award the Father this designation even without his petition being heard at the hearing.

This was error. The rotating custody plan of the final judgment is considered a custody determination, and res judi-cata attaches to that determination. See Wade, 903 So.2d at 934-35. To modify that plan, the parties must meet the same requirement as is necessary to modify any other custody provision of a final judgment of dissolution, i.e., satisfaction of the substantial change test. Id. In this case, the trial court found that, as alleged by the Mother, the move to Highlands County was a substantial change that had occurred since the entry of the final judgment. However, the trial court already had ruled that the Father’s request for modification was not before the court and that the only issues to be addressed were the Mother’s petition to modify the final judgment of dissolution and the Father’s motion to enforce the original rotating custody plan. The final judgment of modification did neither, but rather named the Father primary residential parent — relief that he requested in a petition that was not yet before the court.

Since this was beyond the trial court’s jurisdiction at that time, we must reverse. “A trial court lacks jurisdiction to enter any judgment on an issue not raised by the pleadings.” Newberry v. Newberry, 831 So.2d 749, 751 (Fla. 5th DCA 2002); see also State, Dep’t. of Revenue ex rel. Arnold v. Collins, 727 So.2d 1099 (Fla. 2d DCA 1999); Brady v. Jones, 491 So.2d 1272 (Fla. 2d DCA 1986).

The record indicates that the Mother’s counsel objected to the Father’s petition for modification being heard and that the issues raised in that petition were not tried by consent. Furthermore, the trial court did not make a finding that an emergency existed regarding custody, and it was more than a year before the order of modification was entered. Additionally, even if the court had made such a determination, the relief granted was not temporary in nature. See Scheer v. Scheer, 132 So.2d 456, 458 (Fla. 3d DCA 1961) (noting that emergency circumstances might necessitate temporary custody orders absent the ordinary requirements of pleading and procedure). Accordingly, the trial court’s modification of the final judgment of dissolution’s custody provision without the issue being raised by the appropriate pleadings is reversible error.

We acknowledge that our reversal of the final judgment of modification does potentially place these parties in a difficult situation. The reversal would necessarily reinstate the final judgment of dissolution and the rotating custody plan contained therein. With the Mother living in Highlands County and the Father living in Pas-co County, such a plan is unworkable. It will, therefore, be incumbent on the trial court to address the temporary residence and visitation issues on an expedited schedule to provide continuity for the children until the Father’s motion for modification is properly heard.

We note that the Mother’s secondary issue regarding the trial court’s failure to award, or otherwise reserve jurisdiction to award, attorney’s fees in the final judgment requires no additional consideration by this court in light of our reversal. On remand, the trial court may once again address any claims for attorney’s fees.

Reversed and remanded with instructions.

WHATLEY and SILBERMAN, JJ., Concur.

      . The record before this court does not indicate whether the Father ever successfully served his petition for modification or whether it was entertained by the trial court at any hearing subsequent to the rendition of the order currently under review.

      . At trial, the Mother indicated a willingness to move back to Pasco County if the trial court did not grant her requested modification.


text:
    Amanda HARRELL, Appellant, v. CITRUS COUNTY SCHOOL BOARD and FSBIT Insurance Trust, Appellees.
    No. 1D09-3331.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.

      James E. Hack, St. Petersburg, and Bill McCabe, Longwood, for Appellant.
    Pamela J. Cox and Jodi K. Mustoe of Cox & Mustoe, P.A., Maitland, for Appel-lees.
   PER CURIAM.

Claimant challenges an order of the Judge of Compensation Claims (JCC) denying her request for a “one-time change” of orthopedist and her claim for temporary partial disability (TPD) benefits through the date of the final hearing. Because competent substantial evidence supports the JCC’s denial of TPD benefits, we affirm on this issue. The JCC erred as a matter of law and fact, however, by denying Claimant’s request for a change in physician. Accordingly, we reverse on this issue.

On February 20, 2007, Claimant suffered injuries to her shoulder and back. The employer/earrier (E/C) provided treatment, and Claimant was eventually referred to Dr. Lowell, an authorized orthopedic physician. On October 9, 2008, Claimant filed a formal grievance form with the E/C requesting, in part, authorization for a change of orthopedist because she was dissatisfied with Dr. Lowell. On October 14, 2008, counsel for the E/C sent Claimant a letter agreeing to authorize a new orthopedist. Specifically, the letter stated in full:

The [E/C] is in receipt of your Grievance regarding [Amanda Harrell]. They have agreed to authorize a one-time change of orthopedic doctors. They are in the [process] of scheduling that appointment and you will be advised of the date and time of the appointment under separate cover. If you have any questions, please do not hesitate to contact me.

Subsequently, on October 28, 2008, the E/C sent a second letter to Claimant advising Claimant of her appointment with Dr. Parr on November 14, 2008.

On November 19, 2008, Claimant filed a petition for benefits seeking, in part, authorization of Dr. Simon based on the E/C’s failure to timely authorize a new orthopedic physician. The E/C defended against the claim by arguing it sent a timely letter to Claimant authorizing Claimant’s request for a “one-time change” in orthopedist.

In an order dated June 4, 2009, the JCC denied Claimant’s request for a change in orthopedic physician, finding the industrial accident was not the major contributing cause (MCC) of Claimant’s symptoms. Section 440.13(2)(f), Florida Statutes (2006), provides in pertinent part:

Upon the written request of the employee, the carrier shall give the employee the opportunity for one change of physician during the course of treatment for any one accident.... The carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request. If the carrier fails to provide a change of physician as requested by the employee, the employee may select the physician and such physician shall be considered authorized if the treatment being provided is com-pensable and medically necessary.

We have previously held that “the use of the word ‘shall’ in ... section 440.13(2)(f) means that this one-time change is mandatory, regardless of whether the initial authorized doctor opines that a compensable accident is no longer the MCC of a claimant’s need for treatment.” Providence Prop. & Cas. v. Wilson, 990 So.2d 1224, 1225 (Fla. 1st DCA 2008). Likewise, this change is mandatory “regardless of the E/C’s position as to either the change of physician or the new physician’s treatment.” Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407, 409 (Fla. 1st DCA 2008). Accordingly, the JCC erred in denying Claimant’s request for a change of orthopedic physicians based on the finding that the work-related accident was not the MCC of Claimant’s need for treatment.

In the order, the JCC made factual findings regarding the E/C’s purported authorization for a change in orthopedic physicians. Specifically, the JCC found “Claimant requested authorization for a change in orthopedics on October 9, 2008,” and that the E/C “advised Claimant’s counsel on October 14, 2008, that Dr. Parr was being provided as Claimant’s one-time change in physicians.” No competent substantial evidence supports this latter finding.

The E/C’s October 14, 2008, letter, quoted above, makes no mention of Dr. Parr or any other physician authorized to treat Claimant. Rather, the letter simply states that the E/C “agreed to authorize a one-time change of orthopedic doctors.” The record demonstrates Claimant was not advised of Dr. Parr’s authorization until October 28, 2008 — nineteen days after Claimant’s October 9th written request. Because the E/C failed to authorize a new physician within five days of Claimant’s written request, the E/C failed to comply with the requirements of section 440.13(2)(f).

Section 440.13(2)(f), Florida Statutes (2006), specifically states that “[t]he carrier shall authorize an alternative physician who shall not be professionally affiliated with the previous physician within 5 days after receipt of the request.” (emphasis added). To timely respond to a claimant’s request, an E/C is not required to schedule an appointment with the newly authorized physician. See Dorsch v. Hunt, 15 So.3d 836 (Fla. 1st DCA 2009) (explaining E/C is not required to actually schedule an appointment to comply with its statutory duty to furnish medical treatment at claimant’s request). Based on a plain reading of the statute, an E/C is required, however, to authorize at least one specific physician within five days of a claimant’s request.

Simply acknowledging a claimant’s statutory entitlement is not sufficient. See Great Am. Indem. Co. v. Williams, 85 So.2d 619, 622 (Fla.1956). Allowing an E/C to comply with its statutory duty by generally acknowledging its statutory obligation to provide a change would emasculate the statute and the five-day time period. As such, compliance with section 440.13(2)(f) requires an E/C to name at least one physician not professionally affiliated with the previous physician within five days of a claimant’s written request.

Here, in its letter dated October 14, 2008, the E/C merely “agreed to authorize a one-time change” of physicians. The E/C failed to authorize a specific alternative physician within the five-day time period. The record demonstrates that the E/C did not advise Claimant it selected Dr. Parr until October 28, 2008 — nineteen days after Claimant requested a new physician. Consequently, Claimant was entitled to select her own physician. See § 440.13(2)(f), Fla. Stat. (2006). Therefore, the JCC erred in denying Claimant’s request for a change of orthopedic physician, and this portion of the order must be reversed.

Claimant’s second argument on appeal concerns the JCC’s denial of TPD benefits from September 13, 2008, through the date of the final hearing. The JCC accepted the unrefuted evidence that Claimant reached maximum medical improvement (MMI) on September 12, 2008, and, consequently, denied TPD benefits beyond that date. Competent substantial evidence supports the JCC’s finding that Claimant reached MMI on September 13, 2008. Therefore, competent substantial evidence supports the JCC’s denial of TPD benefits from that point through the date of the final hearing. See § 440.15(2)(a), Fla. Stat. (2006) (“Once the employee reaches ... the date of [MMI], ... temporary disability benefits shall cease....”). Because Claimant provides no factual or legal basis to reverse the JCC’s findings on this issue, we affirm.

Based on the foregoing, we AFFIRM the JCC’s denial of TPD benefits. We REVERSE that portion of the order denying Claimant’s request for a change of orthopedist and REMAND for proceedings consistent with this opinion.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


text:
    C.M.H., a child, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-3091.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Giselle Denise Lylen, Assistant Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile case, C.M.H. pled nolo contendere to one count of grand theft. The Department of Juvenile Justice (DJJ) recommended that C.M.H. be placed on probation. The trial court adjudicated C.M.H. delinquent and committed him to a moderate-risk program, but suspended the sentence and placed him on probation. We reverse.

In E.A.R. v. State, 4 So.3d 614 (Fla.2009), the Florida Supreme Court announced a new, more rigorous analysis that a trial court must conduct before departing from DJJ’s recommendation. As the court explained in E.A.R.:

The only rational or logical means through which the juvenile court may provide “reasons” that explain, support, and justify why one restrictiveness level is more appropriate than another — and thereby rationalize a departure disposition — is for the court to:
(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services' available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.
Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate disposi-tional services in the least restrictive available setting.” § 985.03(21), Fla. Stat. (2007) (emphasis supplied); see also §§ 985.03(44)(a)-(e), 985.433(7)(a)-(b), Fla. Stat. (2007). The failure to connect departure “reasons” to the juvenile court’s ultimate statutory duty during a disposition hearing completely undermines the Legislature’s carefully crafted statutory scheme. These “reasons” must “establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].” § 985.43S(7)(b), Fla. Stat. (2007) (emphasis supplied). Simply regurgitating information provided by, and contained within, the DJJ’s comprehensive assessment and PDR does not establish acceptable statutory reasons as to why the court is “disregarding” these documents and the DJJ’s recommended disposition. Rather, such parroting merely communicates that the court concurs with the DJJ’s assessment and PDR but then, for some unexplained, unarticulated “reason,” has imposed a judicially recrafted disposition. We conclude that simply parroting is insufficient to justify departure and that, instead, the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public. These are suitable means of insuring fulfillment of the Legislature’s comprehensive scheme and its stated intent that the juvenile courts of this state exercise appropriate discretion with the ultimate aim of providing the juvenile offender the most appropriate disposi-tional services in the least restrictive available setting.

Id. at 638. The trial court did not engage in the appropriate analysis of determining why this disposition was better suited to serving the rehabilitative needs of C.M.H., in the least restrictive setting, and protecting the public from further acts of delinquency. See also Dep’t of Juvenile Justice v. K.B., 784 So.2d 556, 557 (Fla. 1st DCA 2001). Accordingly, we reverse and remand to provide the trial court an opportunity to enter an order in compliance with E.A.R., or, if the trial court cannot, impose the probation recommended by the DJJ. See M.K. v. State, 4 So.3d 1271 (Fla. 1st DCA 2009) (reversing and remanding to provide trial court an opportunity to enter an order in compliance with E.A.R. where trial court failed to conduct proper analysis in departing from the DJJ’s recommendation); M.J.S. v. State, 6 So.3d 1268 (Fla. 1st DCA 2009) (same).

REVERSED AND REMANDED.

KAHN, BENTON, and ROBERTS, JJ., concur.


text:
    Carlton D. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6343.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.
    Matt Shirk, Public Defender, and Richard B. Gordon, Assistant Public Defender, Jacksonville, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered November 13, 2009, in Duval County Circuit Court case number 16-2005-CF-11810-BXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the lower tribunal for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

HAWKES, C.J., WOLF and DAVIS, JJ., concur.


text:
    Dennis ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4898.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.
    Dennis Robinson, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

It appearing that the circuit court has issued an order requesting that the state file a response to petitioner’s pending motion for postconviction relief, the petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002). However, given that petitioner s motion has been pending for approximately 18 months, we nonetheless encourage the circuit court to take such measures as are required to ensure that the motion is ruled upon as promptly as circumstances permit.

HAWKES, C.J., WOLF and DAVIS, JJ., concur.


text:
    Linda Delores JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4294.
    District Court of Appeal of Florida, First District.
    Jan. 15, 2010.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant argues that the trial court fundamentally erred by failing to conduct a proper plea colloquy before accepting her plea to three counts of felony petit theft, We note the state’s confession of error, but we decline to review this issue on appeal; it was not raised before the trial court, and it does not constitute fundamental error. See Harrell v. State, 894 So.2d 935 (Fla.2005) (declining to apply fundamental error doctrine to trial court’s failure to formally accept a plea where issue of fundamental error not raised before trial court). We note that to the extent the appellant is challenging the voluntariness of her plea, we must affirm because she did not move to withdraw her plea before the trial court. See Griffin v. State, 820 So.2d 906 (Fla.2002).

AFFIRMED.

WEBSTER, PADOVANO, and ROWE, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Matthew RYBOLT, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4998.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2010.
    James E. Felman and Katherine Earle Yanes of Kynes, Markman & Felman, P.A., Tampa, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba C. Martin-Schomaker, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Matthew Rybolt was on probation when he was charged with nineteen drug offenses: armed trafficking in cocaine, trafficking in MDMA, four counts each of possession and sale of cocaine, two counts each of sale and possession of methamphetamine, two counts each of possession and sale of MDMA, and one count each of possession and sale of marijuana. Although he consistently maintained that he had never been armed, Rybolt entered into a best interests agreement to plead guilty to all charges in exchange for a thirty-year cap on sentencing. He also admitted to violating his probation. After he was sentenced to thirty years for the two trafficking convictions, with various minimum mandatory terms and lesser concurrent sentences for the remaining convictions, Rybolt filed a motion to withdraw his plea, which we have treated as a motion filed under Florida Rule of Criminal Procedure 3.170(0- Rybolt also sought a modification of his sentence under Florida Rule of Criminal Procedure 3.800(c). The motions were denied after an evidentiary hearing before the same judge who accepted the plea, and Rybolt now appeals the order denying relief.

To warrant relief on his motion to withdraw his plea, Rybolt was required to show that the plea was involuntary and that a manifest injustice required correction. See State v. Partlow, 840 So.2d 1040, 1042 (Fla.2003). The circuit court heard testimony by Rybolt and the defense attorney who represented him at the time of the plea. The court found that the plea was neither induced by misadvice nor made while Rybolt was under the influence of drugs obtained from his cellmate at the jail. Rybolt had the burden of proving that his plea was involuntary, and on this record we cannot conclude that the court abused its discretion in rejecting this claim. See Gunn v. State, 841 So.2d 629 (Fla. 2d DCA 2003). Accordingly, we affirm the order denying the motion to withdraw plea.

Rybolt’s motion for reconsideration of his sentence pursuant to rule 3.800(c) was filed on the sixtieth day after his sentencing. Although he filed several amended motions, he never sought and the court never granted an extension of time to rule on the motions. We agree with Rybolt, and the State concedes, that the circuit court lost jurisdiction to rule on the motion to modify the sentence because more than sixty days had elapsed since the imposition of sentence. See Fla. R.Crim. P. 3.800(c) (establishing sixty-day windows during which criminal defendant may seek sentence modification); see also McCormick v. State, 961 So.2d 1099, 1100 (Fla. 2d DCA 2007). Therefore, we reverse that portion of the order denying relief on the rule 3.800(c) motion.

Affirmed in part; reversed in part.

KELLY and LaROSE, JJ„ Concur.


author: WALLACE, Judge.

text:
    John HAYES, a/k/a John David Hayes, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-2302.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2010.

      James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

In this Anders appeal, John Hayes, a/k/a John David Hayes, appeals his judgments and sentences for possession of cocaine with intent to sell or deliver, possession of a controlled substance, and possession of drug paraphernalia. Mr. Hayes pleaded guilty to the charges, without reserving the right to appeal the circuit court’s denial of his motion to suppress. With the exception of certain costs that were improperly imposed, we affirm Mr. Hayes’ judgments and sentences.

Mr. Hayes filed a motion to correct sentence under Florida Rule of Criminal Procedure 3.800(b)(2). The motion is deemed denied because the circuit court did not file an order ruling on the motion within sixty days. Fla. R.Crim. P. 3.800(b)(2)(B). In his motion, Mr. Hayes alleged that the circuit court committed two errors.

First, Mr. Hayes asserted that the circuit court improperly imposed investigative costs because no appropriate documentation of the costs imposed was provided. Section 938.27(1), Florida Statutes (2007), provides that “convicted persons are liable for payment of the documented costs of prosecution, including investigative costs incurred by law enforcement agencies.” (Emphasis added.) The record on appeal does not reflect any documentation from the investigating agency, and the State does not claim otherwise.

Second, Mr. Hayes alleged that the circuit court erred by imposing a public defender lien without giving him notice of his right to a hearing on the amount of the lien. Florida Rule of Criminal Procedure 3.720(d)(1) requires that the defendant be informed of his or her “right to a hearing to contest the amount of the lien ... at the time of sentence.” See also Hayes v. State, 957 So.2d 97, 97 (Fla. 2d DCA 2007). The record does not reflect that the circuit court informed Mr. Hayes of his right to a hearing to contest the amount of the lien.

Because the circuit court improperly imposed the investigative costs and the public defender lien, we reverse the portion of the sentences imposing the investigative costs and the public defender lien and remand for further proceedings. See id. (remanding to allow the defendant to object to the amount of the public defender lien); Diaz v. State, 901 So.2d 310, 311 (Fla. 2d DCA 2005) (“remand[ing] for the trial court to either strike the [investigative] costs or reimpose the costs if the statutory requirements are met”). In all other respects, Mr. Hayes’ judgments and sentences are affirmed.

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

SILBERMAN and KELLY, JJ., Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


text:
    Lynne A. LARKIN, Appellant, v. Elizabeth H. BURANOSKY, Randy Nielsen, Richard M. Johnston, Anthony Pedicini, Public Concepts, LLC., a Florida limited liability company, and Kim Leebove, Appellees.
    No. 4D09-2673.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    Lynne A. Larkin, Vero Beach, pro se.
    L. Martin Reeder, Jr., and C. Bryce Albu of Reeder & Reeder, P.A., Jupiter, for appellee Anthony Pedicini.
   PER CURIAM.

We affirm the trial court’s order denying relief under Florida Rule of Civil Procedure 1.540.

Attorney Lynne Larkin sued appellee Anthony Pedicini and others for defamation. Larkin was represented by two attorneys. Also, Larkin filed a notice of appearance as co-counsel.

The circuit court granted Pedicini’s motion for final summary judgment in an order filed with the clerk on December 30, 2008. Larkin did not receive a copy of the order from her attorneys until January 12, 2009. She filed an untimely motion for rehearing on January 14, 2009, See Fla. R. Civ. P. 1.530(b). The trial court denied the motion the next day. Larkin filed a notice of appeal on February 16, 2009; this court granted Pedicini’s motion to dismiss the appeal as untimely.

Next, Larkin moved under Florida Rule of Civil Procedure 1.540 for relief from judgment, seeking to have the court issue a new final judgment that she could appeal. At the hearing on the motion, Lar-kin argued that her lateness in filing both the motion for rehearing and the notice of appeal was the result of excusable neglect, which was the failure of her attorneys to timely provide her a copy of the final judgment. The trial judge denied the I.540 motion, observing that when Larkin received the order denying her motion for rehearing she had “at least two weeks” to file a timely notice of appeal.

The trial judge did not abuse his discretion in denying the rule 1.540 motion. See J.J.K. Int’l, Inc. v. Shivbaran, 985 So.2d 66, 68 (Fla. 4th DCA 2008).

“Rule 1.540 is designed for the correction of clerical mistakes and to provide a mechanism for relief from judgments, decrees, orders and proceedings under certain articulated and limited circumstances. It is not a substitute for a timely appeal.” Beal Bank, S.S.B., Inc. v. Sherwin, 829 So.2d 961, 962 (Fla. 4th DCA 2002) (citations omitted).

Contrary to Larkin’s argument, the trial court did not commit a clerical mistake in not mailing the final judgment to Larkin in addition to her attorneys. Although rule 1.080(h)(1) requires a conformed copy of a judgment to be transmitted to “parties,” that rule is read in conjunction with rule 1.080(b), which provides that “[w]hen service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court.” Fla. R. Civ. P. 1.080, Committee Notes, 1972 Amendment.

Nor does this case demonstrate “excusable neglect” under rule 1.540(b)(1). As the trial judge observed, from the date Larkin received the final judgment, she had over two weeks to file a timely notice of appeal. The mistake which eventually resulted in the late notice of appeal was the filing of an untimely motion for rehearing in the trial court. In Feinberg v. Feinberg, 410 So.2d 517, 518 (Fla. 4th DCA 1981), we held that this very circumstance did not justify relief under rule 1.540. See also David M. Dresdner, M.D., P.A. v. Charter Oak Fire Ins. Co., 972 So.2d 275, 281 (Fla. 2d DCA 2008) (finding that the trial court erred when it granted Dresdner’s 1.540(b) motion, vacated its earlier judgment, and reentered judgment “without any substantive change,” but with later date, because “series of events that led to the late filing of Dr. Dresdner’s first notice of appeal originated in the office of his appellate counsel”).

Affirmed.

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


text:
    Eduardo A. GARCIA, M.D., Appellant, v. Clara G. GARCIA, Appellee.
    No. 4D08-4453.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.

      Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., and Curtis L. Witters of Glickman, Witters & Ma-rell, P.A., West Palm Beach, for appellant.
    Neil B. Jagolinzer of Christiansen & Jacknin, West Palm Beach, for appellee.
   STEVENSON, J.

This is an appeal in a dissolution of marriage case. Former husband objects to the trial court’s valuation of his interest in a medical partnership and the calculation of alimony. We affirm in part and reverse in part. We affirm the court’s valuation of former husband’s partnership interest using the net asset value approach and reverse a portion of the alimony award and remand for reconsideration.

Eduardo and Clara Garcia married in 1988. The parties separated in 2007 and have two children, ages 13 and 11 at the time of the separation. Former husband is a medical doctor who specializes in the treatment of cancer and blood disorders. Since 1996, he has been a part owner in Hematology Oncology Associates of the Palm Beaches, P.A. He now has a 25% interest in the practice. At the time of trial, former husband had three partners, all with equal shares in the practice. All of the partners signed a Shareholders’ Agreement (“the Agreement”) and an employment contract. Former wife has a high school diploma and has not worked outside the home since before the birth of the couple’s first child.

The court ruled that an equal distribution of the marital estate was equitable. After valuing the other assets, the court required former husband to pay former wife the sum of $194,979 to equalize the distribution. As a result, each party received $2,119,826 in assets. Among the assets former husband received was the value of his interest in the medical practice, which the court, accepting the testimony and report of former wife’s expert witness, valued at $890,449. The court also awarded former vafe $11,000 per month in alimony.

Former husband moved for reconsideration or rehearing. The court granted former husband’s motion in part and entered its amended final judgment. Former husband thereafter appealed.

Property Division

Former husband first argues that the court inequitably divided the parties’ assets by failing to consider a restrictive transfer and designated stock value agreement in valuing his interest in the partnership. Former husband acquired the stock pursuant to the Agreement, which prohibits any shareholder from selling, assigning, transferring or pledging their shares. If a triggering event occurs such that a shareholder dies, is disabled or terminated from employment, the Agreement provides that the shareholder will receive a payment of $15,000 for three months — a total payment of $45,000 for his interest in the practice.

Due to the lack of cases in Florida regarding the effect of a restrictive shareholders’ agreement on the valuation of a medical partnership, we find that the court was correct in adopting the reasoning of two out-of-state cases, Bosserman v. Bosserman, 9 Va.App. 1, 384 S.E.2d 104 (1989), and Bowen v. Bowen, 96 N.J. 36, 473 A.2d 73 (1984). Bosserman held that “the sale price set by restrictive provisions on transfer” of closely held stock was “not conclusive as to the value.” 384 S.E.2d at 108; see also Bowen, 473 A.2d at 73, 78. The courts recognized, however, that restrictive transfer covenants affected value through impaired marketability and “must be considered when a trial court determines the value of stock for purposes of equitable distribution.” Bosserman, 384 S.E.2d at 108; see also Bowen, 473 A.2d at 79. “When stock is subject to a restrictive transfer agreement ... the price fixed by such provisions will not control its value, but the restriction on transfer is a factor which affects the value of the stock for purposes of equitable distribution.” Bosserman, 384 S.E.2d at 108; see also Bowen, 473 A.2d at 79.

In Bossemian, the court noted:

The extent to which such restrictive provisions influence value depends upon numerous factors, including the nature, size and purpose of the corporation; the type and nature of its assets; the terms of the restrictions or transfer provisions; the nature and existence of escape clauses; optional provisions for valuation; and any circumstance which could affect the corporation, the stockholders or their relationship. Depending upon the circumstance of each case, different methods of valuation may reflect more accurately the actual value of the stock to the shareholder. In some instances the rate of return on investment might control; in others the fair market value of the corporate assets might be predominant; and in others the value to the shareholder of benefits derived from the corporation could be significant.

384 S.E.2d at 108-09. The court in Bos-semian went on to affirm the trial court’s finding that, considering the impact of the restrictive transfer agreement on the closely held stock, a net asset valuation was the most accurate method of ascertaining the true value of the stock to the shareholder. Id.

In the instant case, both parties submitted expert testimony as to the value of former husband’s interest in his practice. Former wife’s expert applied the net asset approach and valued former husband’s interest in the medical practice at $890,449. Her expert examined the Agreement, decided that it created an artificial and unrealistic value, and determined that the net asset value method would be the most reasonable way to value former husband’s stock. Former wife’s expert also concluded, after considering all the circumstances, that it was not necessary to further discount the net asset value due to the restrictive agreement. Former husband’s expert did alternative valuations for the practice. Former husband’s expert first placed the value of the practice at $45,000, which is the amount former husband would receive if one of the triggering events in the Agreement occurred. Former husband’s expert’s second valuation applied the net asset approach and valued former husband’s interest in the practice at $562,665. The difference between the experts’ valuations is attributable to their handling of the practice’s accounts receivable.

A trial court’s property valuation must be supported by competent, substantial evidence. Mullen v. Mullen, 825 So.2d 1078, 1079 (Fla. 4th DCA 2002); Cummings v. Cummings, 719 So.2d 948, 950 (Fla. 4th DCA 1998). Here, the trial court found that the net asset value methodology for valuing closely held businesses, as proposed in Bossemian, was the most reasonable method of determining the value of former husband’s stock. While former husband argues the trial court erred in relying on former wife’s expert’s valuation because it failed to ascribe any monetary significance, or “discount” on the net asset value due to the restrictive agreement, neither did former husband’s expert provide such a calculation. As such, the trial court was left with values it was given and determined that the value provided by former wife’s expert was the most reasonable. We find neither legal error nor abuse of discretion in the trial court’s acceptance of former wife’s expert’s testimony as to the value of former husband’s medical partnership. Accordingly, the trial court’s valuation of former husband’s interest in the medical practice for purposes of equitably distributing the marital estate is affirmed.

Alimony

Former husband argues that the court erred in its calculation of the amount of permanent alimony because former wife’s monthly net income post-divorce exceeds her claimed living expenses.

The purpose of permanent periodic alimony is “to provide the needs and the necessities of life to a former spouse as they have been established by the marriage of the parties.” Canakaris v. Canakaris, 382 So.2d 1197, 1201 (Fla.1980). “Absent special circumstances ..., an alimony award should not exceed a spouse’s need.” Rosecan v. Springer, 845 So.2d 927, 929 (Fla. 4th DCA 2003). The standard of living established by the parties' during the marriage can be an important component of a permanent, periodic alimony award in a long-term marriage. See MeCloskey v. McCloskey, 359 So.2d 494, 497 (Fla. 4th DCA 1978); see also Zeballos v. Zeballos, 951 So.2d 972, 974 (Fla. 4th DCA 2007); Donoff v. Donoff, 940 So.2d 1221, 1225 (Fla. 4th DCA 2006).

While we are mindful of the narrow scope of our review for abuse of discretion, we are compelled to reverse the award of permanent periodic alimony to former wife because the numbers do not seem to compute. The trial court awarded former wife a gross taxable amount of $11,000 in permanent periodic alimony, which results in a net monthly award of $8,035. Former wife’s pre-alimony disposable income is $5,221 and adding that amount to former wife’s net monthly alimony award results in former wife’s monthly disposable income of $13,256. Former wife’s post-divorce disposable income will exceed her claimed living expenses of $12,098 by approximately $1,200 per month. We cannot determine whether the additional alimony amount is based, in whole or in part, on standard of living adjustments, such as for the former wife’s future “vacation and travel expenses” since the-trial court specifically found that frequent and expensive worldwide vacations “were part of the parties’ lifestyle”; if this is so, the court should make such clear in its final order on remand. In any event, we cannot reconcile with certainty the trial court’s alimony award with the findings of need as stated in the order on appeal and, therefore, reverse and remand to the trial court to reconsider the award of alimony in accordance with former wife’s needs.

We reverse and remand for reconsideration of the award of permanent, periodic alimony and affirm the judgment in all other respects.

Affirmed in part, reversed in part, and remanded.

TAYLOR and MAY, JJ., concur.

      . The reconsideration of the alimony award will be limited to the extent of the disputed amount as discussed in this opinion.


author: GROSS, C.J.

text:
    Ramon LUCKY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4014.
    District Court of Appeal of Florida, Fourth District.
    Jan. 20, 2010.
    Carey Haughwout, Public Defender, and Ephrat Livni, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

We address the issue of whether the state’s evidence of value of a television in a grand theft case was sufficient to withstand the defendant’s motion for judgment of acquittal. We hold that the state failed to elicit sufficient evidence of value, reverse the grand theft conviction, and remand for the entry of a judgment and sentence for petit theft.

Ramon Lucky was charged with burglary of a dwelling and grand theft of a television. The only evidence of the value of the television came from the victim’s mother, who said that she purchased the flat screen television from BrandsMart six months before the theft for “about $1400.” The state offered no other testimony to establish the fair market value of the television.

The grand theft charge in this case required proof that the value of the television was “$300 or more, but less than $5,000.” § 812.014(2)(c)l., Fla. Stat. (2008). For the purpose of the theft statute, value “means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)l., Fla. Stat. (2008).

In Mansfield v. State, 954 So.2d 74, 76-77 (Fla. 4th DCA 2007), we summarized the law concerning the adequacy of proof of value in a grand theft case:

In Gilbert v. State, 817 So.2d 980 (Fla. 4th DCA 2002), this court cited I.T. v. State, 796 So.2d 1220 (Fla. 4th DCA 2001), in which this court adopted a two-pronged test for determining whether the evidence adduced at trial to prove the value of the stolen property is sufficient to withstand a motion for judgment of acquittal. First, the court must ascertain whether the person testifying is competent to testify to the value of the property. Id. at 1221. This court explained:
“With regard to the first prong ... an owner is generally presumed as competent to testify to the value of his stolen property. The apparent rationale for this rule is that an owner necessarily knows something about the quality, cost, and condition of his property.” [Taylor v. State, 425 So.2d 1191, 1193 (Fla. 1st DCA 1983) ] (citation-omitted). Mere ownership, however, is insufficient, and the witness must have personal knowledge of the property. Id.
I.T., 796 So.2d at 1221-22.
Second, if the person is competent, the court must ascertain whether the evidence adduced at trial is sufficient to prove that the property was worth over $300 at the time of the theft. Id. Absent direct testimony of the market value of the property, proof may be established through the following factors: original market cost, manner in which the item has been used, its general condition and quality, and the percentage of depreciation since its purchase or construction.
Gilbert, 817 So.2d at 982.

Electrical components like televisions, computers, and stereo systems are subject to accelerated obsolescence because manufacturers are constantly releasing new, improved technology at lower prices. For this reason, purchase price alone is generally insufficient to establish the value of such property in theft cases. See C.G.H. v. State, 968 So.2d 94, 95 (Fla. 2d DCA 2007) (purchase price of camera a year earlier, without more, not sufficient to establish value of $300 or more); D.H. v. State, 864 So.2d 588, 589 (Fla. 2d DCA 2004) (state failed to establish value of $300 or more of DVD player, computers, Sony PlayStation2, cameras and other items where victim testified to purchase price of some items; court rejected argument that “sheer number and type” of items established value over $300); Taylor v. State, 425 So.2d 1191, 1193-94 (Fla. 1st DCA 1983) (evidence that CB radio worth $249 when it was purchased eight months before theft insufficient to establish value of $100 at time of theft). For example, in Doane v. State, 847 So.2d 1015, 1017 (Fla. 5th DCA 2003), a grand theft charge involved “two computer monitors, two central processing units, two keyboards, a scanner, a printer, and a 35 mm Nikon camera....” The victim testified that he paid $1,588 for one of the computers, $320 for the scanner, and that his property manager paid several thousand dollars for the other computer. Id. at 1017. The opinion does not specify the date of the theft. The fifth district held that this evidence “was insufficient to prove that the property was worth over $300 at the time of the theft.” Id. at 1017-18. The court reasoned:

The State failed to adduce any other direct testimony of the market value of the stolen property. The State also failed to present any testimony as to the manner in which the items had been used, its general condition and quality, or its depreciation percentage. Furthermore, as computer equipment can become obsolete very quickly, the value of the stolen equipment was not “so obvious as to defy contradiction.”

Id. at 1018 (footnote and citation omitted).

On the other hand, “purchase price and ‘other circumstances’ can be sufficient evidence of market value in the appropriate case.” Pickles v. State, 313 So.2d 715, 717 (Fla.1975). Thus, in K.W. v. State, 983 So.2d 713, 716 (Fla. 2d DCA 2008), evidence that the cell phone was purchased for $450 only three months before the theft and that at the time of the theft, it was in “brand new,” working condition, was sufficient to establish value.

Smith v. State, 955 So.2d 1227, 1228 (Fla. 5th DCA 2007), tips- the scale for reversal. There the issue was whether the state failed to prove that the value of a stolen computer was $300 or more. The victim testified that the computer was a Dell laptop, less than a year old, which “ ‘might have been about six months old at the time’ of the theft.” Id. at 1228. The victim paid “around $1,200” for the computer, which was working when it was returned to him after the theft. The fifth district rejected the state’s argument that the jury could take the $1,200 purchase price and apply its common sense to determine a value in excess of $300 after only six months of use. Id. at 1229. The court held that there was “no competent evidence ... to prove” the computer’s value at the time of the theft. Id.

In this case, there is even less evidence of value than in Smith, because the television was never returned. As in Doane, there was no evidence about the general condition of the television when stolen or the manner in which it was used. This is not a case where because of the nature of the stolen property, “reasonable persons could not doubt that its value exceeded the statutory threshold.” Kitt v. State, 834 So.2d 390, 392 (Fla. 2d DCA 2003) (Casanueva, J., concurring); see Jackson v. State, 413 So.2d 112 (Fla. 2d DCA 1982) (holding that jury could properly conclude that a 37-foot 1980 Hunter sailboat less than one year old had a value greater than $100).

Because the state failed to establish the value of the property in this case, we vacate the conviction and sentence for grand theft and remand to the circuit court for the entry of a judgment and sentence for petit theft. We affirm the conviction for burglary.

Affirmed in part, reversed in part and remanded.

STEVENSON and TAYLOR, JJ., concur.