author: BENTON, J.

text:
    Danurel DAFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6367.
    District Court of Appeal of Florida, First District.
    March 17, 2010.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal, Danurel Daffin contends the trial court erred by denying his request for credit, on each of three concurrent sentences, for all the time he spent in county jail before the concurrent sentences were pronounced. We reverse and remand for award of credit on each concurrent sentence for the time he spent in jail before sentencing.

Mr. Daffin was arrested on June 11, 2008, on charges of violating conditions of probation which had been imposed for resisting an officer without violence, a misdemeanor. An affidavit alleged that he had violated probation by committing new crimes: sale of cocaine in case number 08-20CF; and battery on a law enforcement officer (count I), resisting arrest with violence (count II), and petit theft (count III) in case number 08-29CF. Inasmuch as the new law violations were the basis alleged for revocation, he was arrested for the new law violations themselves at the same time.

At first appearance the following day, Mr. Daffin admitted violating probation. The trial court thereupon revoked probation, and sentenced him to 180 days in jail on the initial, underlying offense (resisting an officer without violence). Bond was set on the new law violation charges, but he never posted bond, remaining in jail instead, serving his sentence for resisting an officer without violence and awaiting disposition of the new law violation charges pending in cases numbers 08-20CF and 08-29CF.

On October 28, 2008, he pleaded no contest to all new law violations charged in exchange for concurrent sentences of four years and six months’ imprisonment in case number 08-20CF; and, in case number 08-29CF, four years and six months’ imprisonment on both Counts 1 and 2, and one month’s imprisonment on count 3. On the sentencing forms, the box next to “original jail credit” was checked for each sentence, although the number of days’ credit was not specified, except on the petit theft count, where a credit of 30 days (deemed the length of the whole sentence) was specified. All sentences were ordered to run concurrently with one another as well as concurrently with “any active sentence being served,” which necessarily included the jail sentence imposed upon revocation of probation.

On November 3, 2008, Mr. Daffin filed a motion styled “Defendant’s Motion to Correct Sentence.” The motion recited that it was being filed “pursuant to Rule 3.800 Florida Rules of Criminal Procedure,” and alleged that the “fact that he was sentenced on the violation of probation before he was sentenced on the new charges does not affect his entitlement to jail credit on the sentence for the new charges.” The trial court entered an order denying the motion; and amended the written sentencing papers to reflect one day’s credit for the sentence imposed in case number 08-20CF and for each of the sentences imposed on counts 1 and 2 in case number 08-29CF.

Filed less than a week after entry of judgments of conviction for, and imposition of sentences on, the new law violations, Mr. Daffin’s motion was a motion to correct sentencing errors pursuant to Florida Rule of Criminal Procedure 3.800(b)(1) (“During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.”). Such a motion preserves alleged sentencing errors for review on direct appeal. See Amendments to Fla. Ride of Appellate Procedure 9.020(g) & Fla. Rule of Criminal Procedure 3.800, 675 So.2d 1374, 1375 (Fla.1996) (explaining the purpose of Rule 3.800(b) “is to ensure that a defendant will have the opportunity to raise sentencing errors on appeal”); Whitehead, v. State, 21 So.3d 157, 160 (Fla. 4th DCA 2009) (“A defendant must preserve a sentencing error by objecting at the time of sentencing or in a motion under Florida Rule of Criminal Procedure 3.800(b).” (citing Fla. R.App. P. 9.140(e))).

“Because a motion to correct a sentencing error involves a ‘purely legal issue,’ an appellate court’s standard of review for such a motion is de novo.” Willard v. State, 22 So.3d 864, 864 (Fla. 4th DCA 2009) (citing T.L.S. v. State, 949 So.2d 290, 291 (Fla. 5th DCA 2007)). Here as below, Mr. Daffin asserts a right to credit for the time he spent in jail between June 12, 2008, and October 28, 2008, on each of his concurrent sentences, relying on this statutory language:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

§ 921.161(1), Fla. Stat. (2008). Our supreme court has made unmistakably clear that, pursuant to this provision, when “a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.” Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (emphasis in original).

The trial court did award pre-sen-tence jail-time credit on the sentence it imposed for petit theft, and the credit covered part of the time during which Mr. Daffin was serving the sentence that began when probation was revoked. A similar credit should have been awarded on each of the other concurrent sentences. Concurrent sentences have been defined as “[t]wo or more sentences of jail time to be served simultaneously.” Black’s Law Dictionary 1367 (7th ed. 1999). See generally State v. Rabedeau, 2 So.3d 191, 193 (Fla.2009). But “[(Concurrent sentences do not necessarily begin at the same time, and unless they are ordered to be coterminous, they will expire on different dates.” Llerena v. State, 953 So.2d 31, 33 (Fla. 3d DCA 2007) (citing Knight v. State, 832 So.2d 172, 172 (Fla. 3d DCA 2002)). In the present case, the concurrent sentences for the new law violations began later than the sentence pronounced upon revocation of probation to which they were all concurrent; and the petit theft sentence expired before any of the other sentences.

A defendant is not, of course, entitled to jail credit for concurrent sentences when the defendant was not actually in jail before sentencing in connection with the offenses for which the concurrent sentences are imposed. See, e.g., Gethers v. State, 838 So.2d 504, 505 (Fla.2003) (holding “that absent the execution of an arrest warrant, a defendant who is in jail in a specific county pursuant to an arrest on one or more charges need not be given credit for time served in that county on charges in another county when the second county has only lodged a detainer against the defendant”). If, for example, a defendant posts bond on one charge and is released, only to be reincarcerated later on other charges, he is then being held only on the charges occasioning the later arrest, until and unless the bond posted on the initial charge is revoked. See Clifton v. State, 905 So.2d 1042, 1043 (Fla. 2d DCA 2005) (holding that, after defendant was released on bond in one case, when he was returned to jail on subsequent charges, he was only entitled to jail credit on sentences imposed in the subsequent cases from the date bond was revoked); Blake v. State, 807 So.2d 772, 773 (Fla. 2d DCA 2002) (holding that, where defendant was out on bond in two cases when he was arrested in a third case he was not entitled to jail credit on the sentences imposed in the first two cases unless his bond had been revoked).

In the present case, however, no bond was ever posted and the prisoner was detained in a single jail. The state does not argue otherwise. He was therefore entitled to credit under section 921.161(1) for the time he spent in jail between June 12, 2008, and October 28, 2008, awaiting sentencing for the new law violations. That he was simultaneously serving the sentence imposed upon revocation of probation in the prior misdemeanor case was expressly taken into account. When Mr. Daffin pleaded no contest to the new law violation charges, his sentences were ordered to run concurrently not only with one another but also with “any active sentence being served,” including the misdemeanor sentence he was then serving.

Reversed and remanded with directions to award credit for the time appellant spent in jail between June 12, 2008, and October 28, 2008, on each concurrent sentence.

KAHN and ROBERTS, JJ., concur.

      . On the record at the plea and sentencing hearing, however, after some discussion about how much credit should be awarded, the judge awarded only one day's credit as to all counts except the petit theft.

      . Although the trial judge indicated that the one day of credit was for "today” — October 28, 2008 — it is possible and perhaps more likely that he intended to award one day’s credit for June 11, 2008, the day Mr. Daffin spent in jail prior to his first appearance. Summarizing its position in the answer brief, the state argues: "Here, the defendant was in jail 'pending sentencing’ for both the misdemeanor and felony charges for only one day, June 11, 2008.”

      . Before the prosecutor persuaded the trial court not to award 140 days’ jail credit on any sentence, the following exchange occurred at the sentencing hearing:
      THE COURT: You’re given credit in each of these sentences for ...
      THE BAILIFF: 140 days.
      THE COURT: 140 days you’ve served in jail....
      Summarizing its position in the answer brief, the state now argues:
      Appellant was entitled to only one day of jail credit on the felony sentencefs], irrespective of the court's order that the felony sentence[s] run concurrent with "any active sentence.” The only benefit of the concurrency term to Appellant was that he was not obligated to finish his misdemeanor jail sentence before beginning his felony sentence.

      . The supreme court, has “distinguish[ed] this situation from one in which the defendant does not receive concurrent sentences on multiple charges; in such a case the defendant 'is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ " Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)); Barnishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006) ("If convicted of multiple offenses, the defendant must be given credit only on the first of consecutive sentences.”); Bell v. State, 573 So.2d 10, 11 (Fla. 5th DCA 1990) (same).

      . Even when bond is not revoked, a trial court may exercise its discretion to allow a defendant jail credit on concurrent sentences. In State v. Pelham, 25 So.3d 1253 (Fla. 2d DCA 2010), the trial court had "expressed a desire for an 'equitable score adjustment’ because jail officials 'should have come off the bond on the new charges [in case 07-26854],’ allowing Mr. Pelham to accrue jail credit for all of his pending cases.” The Second District commented that
      it is not unusual for a person to end up in jail accruing jail credit in one case while still technically "released” on bond in another case emanating from the same county. This is normally the result of an oversight within the criminal justice system and not a matter of intent. We frequently see cases in which a trial judge exercises discretion, often with the complete cooperation of the State, to correct this technical problem by granting additional jail credit in the case where bond was not revoked. This act of discretion does not seem inappropriate to this court, and it eliminates a common source of difficult postconviction motions. Thus, while we mandate the trial court to impose a sentence under the criminal punishment code on remand, we are not reversing the award of jail credit that the State did not challenge on appeal.

        Id.


source: Caselaw Access Project

author: RAMIREZ, C.J.

license: Public Domain

text:
    The STATE of Florida, Appellant, v. Terrance McCRAY, Appellee.
    No. 3D09-278.
    District Court of Appeal of Florida, Third District.
    March 17, 2010.

      Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellee.
    Before RAMIREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   RAMIREZ, C.J.

The State of Florida appeals the defendant Terrance McCray’s downward departure sentence. We reverse, finding that the trial court erred in imposing a sentence that was below the sentencing guidelines, over the State’s objection, without filing written reasons for the downward departure and without any orally stated reasons for a downward departure.

McCray and his co-defendant were charged with burglary of an unoccupied dwelling and criminal mischief. He pled nolo contendere and scored out to twenty-one (21) months in state prison.

At the sentencing hearing, the State objected to McCray being placed on probation because he had scored twenty-one months in state prison. In addition, the State conveyed to the trial court that one of the victims in the case, as well as the victim’s husband, objected to McCray being placed on probation. The State further objected to McCray being placed on probation because he had another open misdemeanor case, resisting an officer without violence. As such, the State argued, McCray was not an appropriate candidate for probation.

In reply, the defense argued that the co-defendant in this case received probation as a youthful offender. The defense further argued that the community would be protected if McCray was placed on probation. The State pointed out to the trial court that the co-defendant was substantially younger than McCray.

The trial court thereafter withheld adjudication and sentenced McCray to two years probation, one-hundred community sendee hours, participation in a jobs program, and restitution in the amount of $205. The State again objected. McCray entered his plea and was sentenced accordingly. The State now appeals.

We agree with the State that the trial court erred when it imposed a sentence, after a plea offer, that constituted a downward departure from the sentencing guidelines, over the State’s objection, without filing written reasons for the downward departure and without any orally stated reasons for the downward departure. When a trial court enters a sentence containing a dowirward departure from the sentencing guidelines, the trial court must provide valid written reasons for doing so. State v. Green, 932 So.2d 365 (Fla. 3d DCA 2006). If the trial court does not do so, however, a downward departure sentence may be affirmed if the trial court orally pronounces on the record a valid basis for the sentence. Pease v. State, 712 So.2d 374 (Fla.1997); Fla. R.Crim. P. 3.704(d)(27)(A).

In McCray’s case, the trial court did not render written findings. Moreover, a review of the January 13, 2009 plea and sentencing transcript does not indicate that any orally announced basis for the sentence was given.

A plea agreement between the State and a defendant is a valid reason for a departure from the sentencing guidelines, but if the State objects to a plea offer made by the trial court to a defendant, the trial court cannot make such an offer unless it provides clear and convincing reasons for its departure. State v. Johnson, 512 So.2d 1116, 1116-17 (Fla. 3d DCA 1987).

Accordingly, the plea is vacated and the case is remanded so that McCray may either withdraw his plea or be resentenced within the sentencing guidelines. Franquiz v. State, 682 So.2d 536 (Fla.1996).

Reversed and remanded.


author: POLEN, J.

text:
    John HERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2872.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied April 27, 2010.

      Samuel R. Halpern, Fort Lauderdale, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, John Hernandez, appeals his convictions and sentences for two counts of lewd or lascivious molestation and one count of lewd or lascivious exhibition. First, he contends that the trial court erroneously permitted the State to call witness Sherill Hernandez for the sole purpose of introducing otherwise inadmissible impeachment evidence, which highly prejudiced appellant. Second, appellant claims error by the trial court in assessing points for victim contact pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), where the verdict form did not have a separate interrogatory for sexual contact. Although we must reverse for a new trial on the first issue, we also address appellant’s sentencing issue, should this matter arise again.

Appellant was charged in Counts 1 and 2 with the lewd or lascivious touching of P.M.’s breast/genital area, or the clothing covering the breast/genital area, on one or more occasions, between October 31, 1999 and March 31, 2004. Count 3 alleged that on one or more occasions during the same time frame, appellant exposed his genitals to P.M. in a lewd or lascivious manner. P.M. was twelve years old when the alleged conduct began.

Appellant’s wife, Sherill Hernandez, was P.M.’s cousin. P.M. referred to Sherill and appellant as aunt and uncle. During the time period in question, P.M. and her two younger sisters would sleep over at the Hernandez home every other weekend or so. It was during these weekends that the alleged molestation occurred.

P.M. described two incidents. In the first, she was sleeping in her cousin Jonathan’s bedroom on the floor. Appellant entered the room and asked P.M. if she was awake and wanted to watch a movie with him in the living room. P.M. said okay and went into the living room with appellant. When she got cold, appellant put her on his lap. Appellant began to push her down onto his lap and began to grind his penis against her “butt” and genital area. Appellant then lowered his pants, unbuttoned P.M.’s “jumper dress” and continued to grind against her. P.M. still had her shirt and underwear on. She could see appellant’s penis. When P.M. cried, appellant stopped and put her back in the other room. Another time, appellant entered the bedroom where P.M. slept, picked her up off the bed, laid her down on the floor and then laid on top of her. Appellant then began to grind against P.M., kiss her neck and touch her breast. Initially, P.M. testified that appellant touched her “naked” breast. Later, she testified that appellant never touched her underneath her clothes, although he attempted to do so.

The incidents occurred in the early morning hours when the house was dark and the rest of the family was asleep. P.M. said she screamed during the inci-dentes), but “never ... to the point where the whole house could hear [her].” The incidents all blurred together and P.M. did not know how many times appellant did this to her. P.M. did not make the allegations until she was eighteen years old, two years after the incidents had stopped. She first told her cousin, Sashana, and then later, her mother, while in the car with Sashana. Upon hearing the allegations, P.M.’s mother drove straight over to the Hernandez residence. When appellant came to the door, he got down on his knees, said, “I’m sorry,” and asked for forgiveness. However, P.M.’s mother did not confront appellant with any specific allegations.

Later that day, P.M. went to the police station where she agreed to make a recorded phone call to appellant. The tape began with a conversation between appellant and P.M., and ended with a conversation between P.M. and Sherill Hernandez. Initially, the parties agreed that only the conversation between P.M. and appellant would be admitted as evidence. That section of the tape, which follows, was published at the end of the State’s case, and without objection:

Unknown male: Hello.
P.M.: Hey, is Uncle John there?
Unknown male: One second.
P.M.: All right.
Male: Hello.
P.M.: Hello.
Male: Yeah.
P.M.: John?
Male: Yes.
P.M.: It’s P.M.
Male: Hi, P.M.
Male: Forgive me.
P.M.: I can’t.
Male: Huh?
P.M.: I can’t. I just want to know why. Hello.
Male: I’m sorry, P.M.
P.M.: Uncle John, why?
Male: Can you, can you just forgive me?
P.M.: No, I just want to know why you were touching me? Why did you do this? Why?
Male: (No audible response).
P.M.: Can you please answer me? Hello. Answer me.
Male: I have to go.
P.M.: No, you don’t have to go.
Male: I’m sorry, P.M.
P.M.: Hello.
Male: I’m sorry.
P.M.: I deserve the right to know why.
(Thereupon the tape was stopped).

After appellant spoke to P.M., the phone was passed to Sherill Hernandez. Sherill and P.M. then had a conversation, in which Sherill indicated that appellant had confessed to her.

The State called Sherill Hernandez over appellant’s objection that the witness was being called for the sole purpose of impeaching her with the transcript of the controlled call. The defense advised that the witness had told defense counsel she was going to deny that appellant had ever confessed to her. The prosecutor responded: “I don’t know what she’s going to come in and say. My only good faith basis is that she is on tape making statements that her husband has admitted this molestation to her specifically.” Defense counsel noted that the State had never deposed the witness.

Before Sherill testified, a proffer was taken and the tape was played for her with the aid of a transcript. Sherill recognized her voice on the tape and recalled part of the phone call, but could not understand what she was saying because “it was very difficult to hear.”

Later, when she testified before the jury, Sherill denied that appellant had admitted to molesting P.M. and said that neither the tape nor the transcript refreshed her memory. When asked whether she recalled telling P.M. that appellant told her he did these things because he “wasn’t psychologically well,” Sherill said: “I may have said it, I don’t remember.” She later said, “he never said that.” She-rill said she must have been referring to the person that molested her (Sherill) as a child. After the tape was played for her again, outside of the jury’s presence, She-rill testified that hearing her voice did not refresh her recollection about what was said in the conversation.

After extensive argument and objections, the court ruled that Sherill and P.M.’s taped conversation would be admitted as past recollection recorded. Appellant objected to the tape being admitted under that exception to the hearsay rule, citing a lack of predicate or foundation.

After Sheriffs testimony, the conversation in its entirety was published to the jury:

Female: Hello.
P.M.: Hello?
Female: Hello.
P.M.: Hello?
Female: P.M.
P.M.: Hi.
Female: I’m sorry, baby.
P.M.: No, no, no. From when I was little. I was twelve years old and you knew.
Female: I did not know, I had no idea.
P.M.: He’s your husband.
Female: I did not know.
P.M.: I’m your family, not him, me.
Female: I know.
P.M.: I’m blood, you’re married to him.
Female: I know baby. I did not know,
P.M. I did not know. I’m so sorry.
P.M.: I will never forgive nobody, never. The stuff I’ve been through, never. Can you please tell me, Uncle John?
Female: (Inaudible).
P.M.: Is he on the phone?
Female: No, he’s not in the room.
P.M.: Can you just put him on the phone? I just want to know why. Hello.
Female: P.M.
P.M.: I just want to know why he touched my vagina, my breasts and he made me sit on him, can you, just please. I’m at an age, I’m grown, can somebody please—
Female: I know, I asked him why he did all of that, and that’s what he said, psychologically he wasn’t well.
P.M.: Well, him and his psychological problems need to tell me why he did this to me.
Female: P.M. he said psychologically he wasn’t well and (inaudible) he’s sorry.
P.M.: Auntie, I have to talk to him, please.
Female: (Inaudible) P.M., I’m sorry, I had no — if I knew I would have done the same thing, some relative or cousin did the same thing, I understand what you’re going through.
P.M.: Okay, Auntie, are you going to put him on the phone?
Female: Are you tape recording this, P.M.?
P.M.: No.
Female: Where are you calling from?
P.M.: I’m at my friend’s house.
Female: (Inaudible) I know, I just (inaudible) I’m in so much pain right now. Travis, please don’t pick up the phone.
P.M.: Well, I tried, all I wanted was an answer, so, I—
Female: I know—
P.M.: I don’t want to hear it from you, you didn’t do it, he did it, I wanted to hear it from him. Well, I got to go.
Female: P.M.
P.M.: I’m sorry, I got to go.
Female: P.M. P.M.
P.M.: Bye.
(Thereupon, the tape was stopped.)

Appellant argues that the trial court reversibly erred in allowing the State to call Sherill Hernandez as a witness for the sole purpose of impeaching her with this inadmissible hearsay evidence. The State responds that the taped statement was admissible as a past recollection recorded, and alternatively, any error was harmless. We agree with appellant and reverse.

The standard of review on the admission of evidence is abuse of discretion as limited by the rules of evidence. Hudson v. State, 992 So.2d 96, 107 (Fla.2008). Unless it falls within a statutory exception, hearsay evidence is inadmissible. See § 90.802, Fla. Stat. (2008).

Section 90.803(5), Florida Statutes (2008), provides an exception to the hearsay rule when a witness cannot recall matters of which he or she previously had knowledge. If the proper foundation is laid, a tape-recorded statement may qualify as a recorded recollection. See Montano v. State, 846 So.2d 677, 680-81 (Fla. 4th DCA 2003). To be admitted into evidence, the past recollection recorded must be offered by the witness who is either devoid of a present recollection, or possessed of an imperfect present recollection and desires to use a memorandum of a past recollection. See Kimbrough v. State, 846 So.2d 540, 543 (Fla. 4th DCA 2003); § 90.803(5). “The witness must be able to assert notv that the record correctly represented his knowledge and recollection at the time of making.” Kimbrough, 846 So.2d at 543 (citing J. Wigmore, Evidence §§ 734, 746(2) (Chadbourne rev. 1970)); see also Montano, 846 So.2d at 681-82 (witness’s tape-recorded statement given to police shortly after criminal incident was improperly admitted under recorded recollection exception to hearsay rule where witness did not acknowledge its accuracy at trial).

Here, Sherill Hernandez was unable, or unwilling, to attest to the accuracy of the taped conversation. As such, the State was not able to show it could introduce the document as a “past recollection recorded.” Sherill testified definitively that appellant denied abusing P.M. This directly conflicts with the conversation on the tape. Sherill also denied that appellant had offered an explanation to her for abusing P.M., i.e., that he was not mentally or psychologically well. She testified that the tape did not refresh her recollection.

Section 90.608(1), Florida Statutes, states that “[a]ny party, including the party calling the witness, may attack the credibility of a witness by ... [introducing statements of the witness which are inconsistent with the witness’s present testimony.” However, the supreme court in Morton v. State, 689 So.2d 259 (Fla.1997), receded from on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000), has recognized the risk of abuse where a prosecutor calls a witness who has previously given a statement implicating the defendant but who has since repudiated that statement. Bateson v. State, 761 So.2d 1165, 1169 (Fla. 4th DCA 2000). “[W]here a prosecutor knows that the witness’ testimony at trial will be favorable to the defendant but, nonetheless, calls the witness for the purpose of impeaching [her] with [her] prior statement, the practice may be considered abusive because ‘there is no legitimate forensic purpose in calling a witness solely to impeach him.’ ” Id. (emphasis added.) Recognizing that a single rule could not be created to encompass all of the circumstances in which a party will seek to impeach her own witness, the court stated: “Generally ... if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded.” Morton, 689 So.2d at 264.

In determining whether a party calls a witness for the primary purpose of impeachment, courts may consider “(1) whether the witness’s testimony surprised the calling party, (2) whether the witness’s testimony affirmatively harmed the calling party, and (3) whether the impeachment of the witness was of de minimis substantive value.” Senterfitt v. State, 837 So.2d 599, 600 (Fla. 1st DCA 2003).

Recently, this court adopted the Third District’s expanded explanation of the “primary purpose” analysis in State v. Richards, 843 So.2d 962 (Fla. 3d DCA 2003), which noted that the witness’s other testimony must be useful to prove a significant fact in the litigation:

Application of the “mere subterfuge” or “primary purpose” doctrine focuses on the content of the witness’s testimony as a whole. If the witness’s testimony is useful to establish any fact of consequence significant in the contest of the litigation, the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to. In the words of one commentator, the pivotal question is whether the “party [is] calling a witness with the reasonable expectation that the witness will testify [to] something helpful to the party’s case aside from the prior inconsistent statement.”

Ruff v. State, 31 So.3d 833, 837 (Fla. 4th DCA 2010) (quoting Richards, 843 So.2d at 965 (emphasis omitted) (quoting 1 McCormick on Evidence § 38, at 142-43 (John W. Strong ed., 5th ed. 1999)).

In the instant case, a review of Sherill’s entire trial testimony reflects that it was useful only for the introduction of her prior inconsistent statements. First, we find the absence of the “surprise” factor. The State had never deposed Sherill, and the record reflects that the prosecutor had not even spoken with the witness prior to trial. Moreover, defense counsel specifically advised the State and trial court that Sherill had told defense counsel she was going to deny that appellant ever admitted to the allegations or that he had offered an explanation for doing so. During the initial proffer, the witness recognized her voice on the tape and recalled part of the phone call, but could not make out what she was saying. At the very least, then, the State should have been alerted to the possibility that Sherill’s trial testimony would be favorable to appellant. The State could and should have requested a brief recess to interview or depose the witness. Sheriffs testimony did, in fact, affirmatively harm the prosecution, because it directly opposed the point the State was trying to prove; namely, that appellant had confessed to his wife. The impeachment was not of de minimis value to the State because none of the State’s other witnesses had testified that appellant admitted to the allegations. The only other evidence Sherill offered concerned the relationship between the families, appellant’s age, and that P.M. was often an overnight houseguest in the Hernandez home. This testimony was either cumulative to that of the other witnesses or undisputed. “Paraphrasing McCormick, the prosecutor did not call [Sherill Hernandez] with any reasonable expectation that she would testify to something helpful to his case, aside from the prior inconsistent statement.” Ruff, 31 So.3d at 838.

We cannot say beyond a reasonable doubt that the admission of the tape, containing Sherill’s prior inconsistent statements, did not contribute to the jury’s verdict. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986). This is so despite the trial court’s cautionary instruction(s). “The pertinent question in a harmless error analysis is not the sufficiency or quality of the remaining, properly admitted evidence; rather, it is ‘whether there is a reasonable possibility that the error affected the verdict.’ ” Chavez v. State, 25 So.3d 49, 54 (Fla. 1st DCA 2009) (citing DiGuilio, 491 So.2d at 1139); see also Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (reiterating that the harmless error test is “not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test.” (citing DiGuilio, 491 So.2d at 1139).

The subject conversation revealed the only admission of guilt by appellant, gave credence to the victim’s testimony, and provided an explanation for appellant’s non-specific requests for forgiveness, first to P.M.’s mother and later, to P.M. It was highly damaging and prejudicial — particularly, where the victim did not report the alleged conduct until two years after it had stopped and the State presented no physical evidence or corroborating witness testimony.

For the foregoing reasons, we reverse for a new trial.

We now comment on the sentencing issue in the event it becomes an issue following remand.

During sentencing, the defense objected to the points assessed for victim contact, pursuant to Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Counsel argued that the sexual contact points should not be included in the scoresheet calculation because the verdict form did not have a separate interrogatory for sexual contact. The State successfully argued that the victim contact inheres in the verdict and no separate jury determination was required. Accordingly, the trial court assessed sexual contact points for the two counts of lewd or lascivious molestation.

Appellant argues that sexual contact did not inhere in the verdict because the testimony was ambiguous as to whether appellant touched the clothing covering the breast or genital area or the flesh itself. Appellant correctly asserts that sexual contact is not defined in the applicable statutes. However, our courts have upheld sexual contact victim injury points in instances where the offender touched clothed sexual parts of the victim. See Altman v. State, 852 So.2d 870 (Fla. 4th DCA 2003) (holding that appellant’s act of lying on top of the victim with his clothed genitals pressed against hers and “humping” her constituted sexual contact for which victim injury points were appropriately scored); see also Fredette v. State, 786 So.2d 27, 28 n. 2 (Fla. 5th DCA 2001) (holding that sexual contact includes touching a child’s vaginal area, and opined that this would constitute sexual contact even if the touching was over the child’s clothing); Louis v. State, 764 So.2d 930 (Fla. 4th DCA 2000) (holding that touching the victim’s chest through her shirt, along with touching her stomach and genital area, involved sexual contact for which victim injury points were properly scored); State v. Milanes, 762 So.2d 572, 573 (Fla. 5th DCA 2000) (“victim injury points can be assessed when the accused is adjudicated guilty of fondling the victim”); Mackey v. State, 516 So.2d 330, 330-31 (Fla. 1st DCA 1987) (affirming victim injury points for sexual contact where defendant fondled a thirteen-year-old boy by touching him above the crotch).

We therefore find the sentencing issue to be without merit.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.

      . Sashana was not called to testify at trial by either party.

      .
      (5) RECORDED RECOLLECTION. A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness’s memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
      § 90.803(5), Fla. Stat. (2008).

      . The trial court gave the jury a limiting instruction both at the time the tape was played, and later, in the final charge to the jury-


author: GROSS, C.J.

text:
    Paul Gilbert MEAD, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4005.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2010.
    Rehearing Denied April 27, 2010.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.

      Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, C.J.

An arson victim taped a phone conversation with an acquaintance who was the primary suspect for a crime. We hold that a law enforcement officer’s verbal authorization to the victim to tape any such phone conversation was sufficient to render the victim’s “interception” of the phone communication lawful under section 934.03, Florida Statutes (2006).

The state charged Paul Mead with burglary of a dwelling and arson, arising from a 2006 house fire. Shortly after the fire, the owner of the house was interviewed by Lieutenant Richard Schuler, a supervisor with the State Fire Marshal’s Office. During the interview, Mead called the owner on her cell phone. The owner and Mead were acquaintances, although Mead had unreciprocated romantic feelings for her.

The owner held up the phone so that both she and Schuler could hear the short conversation. The owner asked Mead why he had set her house on fire. Mead responded that he wanted to tell her, but he would not talk about it over the phone because he did not know who might be listening.

After this phone conversation ended, the owner said, “[T]oo bad we couldn’t have gotten that[.]” Then the owner asked, “Do you think I should tape the conversation?” Schuler told her, “[A]bsolutely.... If he calls again. If you are able to, tape it.” Thus, Schuler testified, he verbally authorized the owner to record any future conversations with Mead as part of the criminal investigation.

Mead called the owner again several days later. The owner recorded this second conversation. At trial, the state offered the recording in evidence. The trial judge overruled Mead’s objection and the jury listened to the recording. Mead was convicted as charged.

The trial court properly admitted the recording into evidence under subsection 934.03(2)(c), Florida Statutes (2006). Subsection 934.03(1) generally prohibits the intentional interception and disclosure of wire, oral, or electronic communications. However, subsection 934.03(2) provides several exceptions to the general prohibition, including this one:

It is lawful ... for an investigative or law enforcement officer or a person acting under the direction of an investigative or law enforcement officer to intercept a wire, oral, or electronic communication when such person is a party to the communication or one of the parties to the communication has given prior consent to such interception and the purpose of such interception is to obtain evidence of a criminal act.

(Emphasis added).

Mead argues that the phrase “under the direction” connotes “significantly greater supervision than where a person merely acts ‘at’ the direction of another.” However, the language of the statute does not require active police involvement or presence during the recording process. We construe “under the direction” as synonymous with “authorized by.” See also Commerford v. State, 728 So.2d 796, 798 (Fla. 4th DCA 1999) (statute satisfied where victim “agreed with police to record her conversation” with defendant). Schu-ler’s direction to the owner was sufficient to bring the recording under the umbrella of subsection 934.03(2)(c).

Mead relies on Miller v. State, 411 So.2d 944 (Fla. 4th DCA 1982), for the proposition that there must be something more than a law enforcement officer’s authorization to make an interception lawful under subsection 934.03(2)(e). However, Mead reads this case too expansively. In Miller, a disgruntled former husband contacted a prospective hit man to find “a solution to his problems.” Id. at 945. By letter, the hit man sent the husband his telephone number, and Miller called. Id. However, “unbeknownst to him, [the hit man] recorded this call in the presence of a California police officer.” Id. The recording of the telephone conversation was admitted at the husband’s trial. See id. Affirming a conviction of criminal solicitation, we held “that the presence of the officer was sufficient to bring this recording within the purview of’ subsection 934.03(2)(c). Id. at 946.

In Miller, we did not create a rule that an officer had to be present when a recording was made in order for a recording to comply with section 934.03. Rather, we held that the facts in Miller satisfied subsection 934.03(2)(c), without creating any minimum requirements.

Affirmed.

MAY and CIKLIN, JJ., concur.


author: MONACO, C.J.

text:
    D.B.P., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2877.
    District Court of Appeal of Florida, Fifth District.
    March 19, 2010.

      James S. Purdy, Public Defender, and Edward J. Weiss, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, C.J.

The appellant, D.B.P., a minor, argues that the trial court erred in denying his motion to suppress evidence, and that his judgment and sentence should be reversed. Because we agree that under the prevailing case law the search lacked constitutional validity, we reverse.

The critical facts are uncomplicated. A sheriffs deputy sought to make a “consensual encounter” about mid-day near a bus stop in what the officer described as a “high crime” area. Other officers had advised the arresting officer that a person had committed pedestrian violations. The officer approached D.B.P. and said “Hey. What’s up man,” to which the minor responded, “Who me?” According to the officer, when he approached D.B.P., the minor put both hands in his pockets and looked nervous. The officer told him to take his hands out of his pockets, and when D.B.P. did not do so, the officer physically assisted the minor in removing his hands. D.B.P. was then told to place his hands above his head. The officer noted that the minor was wearing baggy pants, so the officer could not visually see what was in them. He then patted D.B.P. down and felt the handle of a handgun. The officer subsequently took D.B.P. into custody.

The State conceded in closing argument at the suppression hearing that the stop was an investigatory stop, and not a consensual encounter. The trial court agreed that the stop was “nonconsensual,” but then concluded that it was neither a consensual, nor an investigatory stop. Eventually the trial court opted to apply a Terry analysis in determining whether the arresting officer had reasonable suspicion to search D.B.P. The trial court concluded that under the totality of circumstances, the actions of the officer were reasonable. After the court issued that ruling, D.B.P. pled nolo contendere, reserving the ruling on the search for appellate consideration. This appeal followed.

A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and a reviewing court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustain a trial court’s ruling. See Doorbal v. State, 837 So.2d 940, 952 (Fla.), cert. denied, 539 U.S. 962, 123 S.Ct. 2647, 156 L.Ed.2d 663 (2003); Pagan v. State, 830 So.2d 792 (Fla.2002), cert. denied, 539 U.S. 919, 123 S.Ct. 2278, 156 L.Ed.2d 137 (2003); San Martin v. State, 717 So.2d 462, 468 (Fla.1998), cert. denied, 526 U.S. 1071, 119 S.Ct. 1468, 143 L.Ed.2d 553 (1999); Davis v. State, 922 So.2d 438, 443 (Fla. 5th DCA 2006). While the standard of review to be applied to factual findings of the trial court is whether competent, substantial evidence supports the findings, the trial court’s application of the law to the facts is reviewed de novo. See Bevard v. State, 976 So.2d 1163 (Fla. 5th DCA 2008); Utu v. State, 929 So.2d 718 (Fla. 5th DCA 2006); Houston v. State, 925 So.2d 404 (Fla. 5th DCA), review denied, 935 So.2d 1220 (Fla.2006); Young v. State, 803 So.2d 880 (Fla. 5th DCA 2002); State v. Kindle, 782 So.2d 971 (Fla. 5th DCA 2001); McMaster v. State, 780 So.2d 1026, 1027 (Fla. 5th DCA 2001).

The Florida stop and frisk law, as interpreted by J.L. v. State, 727 So.2d 204 (Fla.1998), affirmed, 529 U.S. 266, 120 S.Ct. 1375, 146 L.Ed.2d 254 (2000), and State v. Webb, 398 So.2d 820 (Fla.1981), allows an officer who has validly stopped an individual to pat down and search the person if the officer has reasonable suspicion to believe that the individual is armed with a dangerous weapon and poses a threat to the officer or any other person. § 901.151(5), Fla. Stat. (2009). In J.L., however, the Florida Supreme Court declined to create a firearm or weapons exception to the limitations on searches and seizures set out in the Fourth Amendment to the United States Constitution, and Article I, section 12 of the Florida Constitution. The court in discussing Terry stops and the use of informants noted that:

The law is well established that a police officer may, in appropriate circumstances, stop a person for the purpose of investigating possible criminal behavior, even though there is no probable cause for an arrest, as long as the officer has reasonable suspicion that the person is engaged in criminal activity, [cite omitted]. The circumstances may even require a frisk of the person to determine whether the person is carrying a weapon, if the police officer has a reasonable suspicion that the person is armed and poses a threat to the officer or others.

J.L., 727 So.2d at 206. In addition, howev-ei*, there must be something more to corroborate criminal activity than “easily obtained facts” such as clothing, appearance or location to support a search and seizure by officers. See Kalnas v. State, 862 So.2d 860, 862 (Fla. 4th DCA 2003) (officer required to uncover something more than just a verification of the innocent details of identification in order to establish the reliability of the anonymous tip); Butts v. State, 644 So.2d 605, 606 (Fla. 1st DCA 1994) (officers who are unable, to independently corroborate criminal activity may not initiate a gunpoint seizure based upon confirmation of innocent details such as appearance or clothing), review denied, 659 So.2d 272 (Fla.1995).

With this as our foundation we begin our consideration of the present case by noting that the stop in this case was not a Terry stop. There was no indication or suspicion that D.B.P. had committed or was about to commit a violation of the criminal laws of this state. E.H v. State, 593 So.2d 243 (Fla. 5th DCA 1991). D.B.P. was simply suspected of jaywalking, a traffic infraction. The specific issue before us, then, is whether D.B.P.’s act of putting his hands in his pockets during a stop for a noncriminal infraction in a high crime area is sufficient to provide the requisite reasonable suspicion. The holdings of this court and of a number of our sister courts in cases similar to the present case in which a pat down was conducted in part because the searched person put his hands in or near his pockets, are instructive.

In State v. Banes, 979 So.2d 991, 993 (Fla. 4th DCA 2008), for example, the Fourth District Court affirmed a trial court’s granting of a motion to suppress where it found that the officer conducted a pat down search without sufficient legal cause to believe the defendant was armed or dangerous.

Police officers are authorized to execute a pat down for weapons only where they have a reasonable suspicion to believe that a suspect is armed with a dangerous weapon. Campuzano v. State, 771 So.2d 1238, 1243 (Fla. 4th DCA 2000). One of the recognized circumstances justifying a weapons pat down is a combination of the defendant’s nervousness and the officer’s observation of a bulge in the defendant’s clothing. Ray v. State, 849 So.2d 1222, 1225 (Fla. 4th DCA 2003). However, an officer does not have reasonable suspicion that a defendant is armed merely because, following a non-criminal traffic stop, the defendant appears nervous and keeps his hands in or near his pockets. Id.; see also Coleman v. State, 723 So.2d 387 (Fla. 2d DCA 1999); E.H. v. State, 593 So.2d 243 (Fla. 5th DCA 1991). The mere thrusting of one’s hand in one’s pocket in front of a police officer does not constitute conduct which supports a founded suspicion that an individual is armed and dangerous. Delorenzo v. Stale, 921 So.2d 873, 879 (Fla. 4th DCA 2006) (Warner, J., concurring specially). (Emphasis added).

Similarly in E.H. this court held that where a juvenile was stopped for a noncriminal traffic violation, the fact that the officer expressed concern that the juvenile kept reaching into his pocket was insufficient by itself to supply the reasonable suspicion necessary to support a pat down. Our court specifically noted that there was no testimony that the officer observed a bulge in the appellant’s clothing, or that the officer had any other objective indication that the juvenile was carrying a weapon in his pockets.

Likewise in Ray v. State, 849 So.2d 1222 (Fla. 4th DCA 2003), the defendant was stopped for riding his bicycle at night without proper lights by an officer patrolling an area known for illegal drug activity. Subsequently, based on Ray’s somewhat fidgety behavior, the deputy performed a weapons pat down and retrieved crack cocaine rocks from Ray’s pocket. The deputy testified that despite several requests, Ray would not remove his hands from his jacket pocket. In fact, Ray’s initial response to the deputy was, “Why are you bothering me?” According to the officer, Ray’s reluctance to remove and keep his hands away from his pockets coupled with the deputy’s knowledge of the location made him concerned for his safety.

Just as in the instant case, the officer in Ray expressly acknowledged that he did not observe any bulges or other evidence of the presence of a weapon in the defendant’s clothing. As to the location, in both cases there was nothing to link the defendants to any potential criminal activity. In Ray, the officer was simply going to discuss Ray’s failure to have the proper lighting on his bicycle. In the instant case, the officer ostensibly was going to question D.B.P. about his jaywalking. In addition, there was no elusive, unusual or suspicious behavior on the part of D.B.P. that would have justified the pat down. Compare Copeland v. State, 756 So.2d 180 (Fla. 2d DCA 2000); see also Hoover v. State, 880 So.2d 710 (Fla. 5th DCA 2004).

Here, when the officer asked the defendant to take his hands out of his pockets, the request constituted a police order given the circumstances. See Dees v. State, 564 So.2d 1166 (Fla. 1st DCA 1990). The reason for the investigatory stop or non-consensual detainment was the officer’s concern about a pedestrian violation, specifically, the failure to use a pedestrian crosswalk. The infraction cited by the officer was noneriminal. Although the refusal by a person to remove his or her hands from pockets might well constitute part of the basis authorizing a pat down for weapons in some circumstances, under the well-established case law of this state, the facts presented here do not amount to the reasonable suspicion necessary to justify the search.

The Fourth Amendment protects citizens against unreasonable searches and seizures. It might be tempting to conclude that because the officer found a firearm when he searched D.B.P., the search was reasonable. The success of the search, however, is not now and never has been the test to be applied. Applying the established law to the facts of this case, it is clear that the search was not reasonable, and that the motion to suppress should have been granted. See § 901.151(6), Fla. Stat. (2009). Accordingly, we reverse the denial of the motion to suppress, and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ„ concur.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: STEVENSON, J.

text:
    Kenneth M. DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-1222.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.

      Carey Haughwout, Public Defender, and John M. Conway, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West'Palm Beach, for appellee.
   STEVENSON, J.

Kenneth Davis was adjudicated guilty of third-degree felony DUI. Though a jury found Davis guilty of driving under the influence, the record is devoid of any evidence of the predicate prior offenses necessary to sustain a conviction for felony DUI, so we reverse.

Davis was charged by information with felony DUI pursuant to sections 316.193(1) and 316.193(2)(b)l., Florida Statutes (2005), which provide that a defendant is guilty of a felony DUI if he “is convicted of a third violation of this section for an offense that occurs within 10 years after a prior conviction for a violation of this section.” Defense counsel filed a motion for a bifurcated trial, asking that the jury determine Davis’s prior convictions, if they find him guilty of the instant DUI. Subsequently, prior to the commencement of voir dire, defense counsel orally stated that he had previously filed a motion for a bifurcated trial and for the court to determine Davis’s prior convictions. The State did not object, and the trial court granted the request.

The facts surrounding the instant DUI were presented to the jury. Before the jury returned its verdict, the trial court clarified that the parties had stipulated that if there was a guilty verdict, the priors would be determined by the court. Davis was present, and all of the parties agreed. The jury returned a guilty verdict. Defense counsel requested that the parties return on a later date to address the priors and conduct sentencing. He indicated that the defense may stipulate to the priors, but they were not yet prepared to do so. At the subsequent sentencing hearing, Davis’s prior DUI offenses were never mentioned, and no stipulation was presented, but Davis was nonetheless adjudicated guilty of felony DUI and sentenced to 364 days in jail, followed by thirty-six months of probation.

The requirement of prior DUI offenses is considered an element of felony DUI, which the State is required to prove beyond a reasonable doubt. See Johnson v. State, 994 So.2d 960, 963 (Fla.2008) (citing State v. Finelli, 780 So.2d 31, 33 (Fla.2001)); State v. Harbaugh, 754 So.2d 691, 694 (Fla.2000). Because the instant record lacks any findings about Davis’s prior DUI offenses or evidence establishing Davis’s prior DUI offenses, we agree with Davis that the State failed to satisfy this element. In order to cure this defect, findings about the predicate prior offenses would need to occur in the circuit court.

In State v. Rodriguez, 575 So.2d 1262, 1266 (Fla.1991), our supreme court held that when a defendant is charged with felony DUI, if he elects to be tried by a jury, the court must conduct a jury trial on the elements of the single incident of DUI at issue without allowing the jury to learn of the alleged prior offenses, and, if the jury returns a guilty verdict, the trial court would then conduct a separate proceeding to determine if the defendant had been convicted of the requisite prior offenses. In Hcvvbaugh, our supreme court modified this process, holding that the jury, unless waived by the defendant, must decide the issue of the defendant’s prior convictions as well. See 754 So.2d at 694. A valid waiver is either a written waiver signed by the defendant or an oral waiver preceded by a proper colloquy during which the trial judge focuses on the value of a jury trial and provides a full explanation of the consequences of a waiver. Johnson, 994 So.2d at 963. A defendant’s silence does not establish a valid waiver. Id.

In the instant case, Davis never validly waived his right to a jury trial as to his prior offenses. This court cannot deem such an error harmless because there is no record evidence of the prior offenses to show that if a jury trial had occurred during the second phase, Davis would most likely have been convicted of felony DUI, as the jury would have likely found the existence of the priors. See id. at 965. Moreover, in the absence of a valid waiver, Davis was entitled to have the same jury decide whether the State proved beyond a reasonable doubt all elements of the crime charged, meaning the prior offenses portion cannot be considered on remand. See Harbaugh, 754 So.2d at 694 n. 5. Alternatively, subjecting Davis to retrial as to the instant DUI would violate double jeopardy. See Warthen v. State, 988 So.2d 154, 156 (Fla. 4th DCA 2008). Even if this court concluded that Davis validly waived his right to a jury trial as to his prior offenses, the record does not reflect evidence of these prior offenses on which to base a conviction for felony DUI. Thus, we reverse and remand, directing the trial court to vacate Davis’s adjudication and sentence for felony DUI and adjudicate him as to only the instant DUI of which the jury found him guilty.

Reversed and remanded.

WARNER and POLEN, JJ., concur.


author: PER CURIAM.

text:
    Brent HARDING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0792.
    District Court of Appeal of Florida, First District.
    March 24, 2010.
    Brent Harding, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


text:
    Donald Scott GRIFFIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-0688.
    District Court of Appeal of Florida, First District.
    March 24, 2010.
    Donald Scott Griffis, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, PADOVANO, and ROBERTS, JJ., concur.


author: TAYLOR, J.

text:
    Terry McKENNA, Appellant, v. Tracy McKENNA, Appellee.
    No. 4D09-4535.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Lawrence E. Brownstein of Lawrence E. Brownstein, PLLC, West Palm Beach, for appellant.

      Robert H. Springer of Robert H. Springer, P.A., Lake Worth, for appellee.
   TAYLOR, J.

In this appeal from a final judgment of dissolution, the father challenges the trial court’s calculation of child support and retroactive child support where custody of the three children was split between the two parents. We reverse and remand for recalculation of the child support.

The final judgment provided that the parties’ two younger children would reside with the mother in Florida and that the oldest child would reside with the father in Ohio. The trial court awarded child support to the mother for the two children residing with her but did not award support for the minor child residing with the father. In the final judgment, the trial court made the following findings as to child support:

Husband earns $2,894 net per month, and pays $160 per month for Jessica’s health insurance. Wife earns $2,340 net per month and pays $253 per month (( [$46 x 40] + [$100 x 12]) v 12) for Jack’s child care. The parties’ combined net incomes result in a basic support obligation for the three children of $2,000 per month. This basic support obligation is increased by the $160 paid by Husband monthly for Jessica’s health insurance and $190 paid monthly ($253 x .75) by Wife for Jack’s day care, for a total basic support obligation of $2,350. Husband is responsible to Wife for 2/3 of his 55% of this obligation, subject to the $160 credit for Jessica’s health insurance, or $702.00.

The father moved for rehearing, complaining that the trial court erred in calculating child support in this split custody arrangement because it provided no offset for any amounts that the mother would owe towards the care of the oldest child in the father’s custody.

In addition, the father asserted that the trial court failed to award him retroactive child support for the minor child residing with him. The final judgment states, “Husband shall pay Wife retroactive child support of $4,872.47 for November 2008 through September 30, 2009, an amount agreed to by counsel.” According to the father, the trial court misinterpreted his counsel’s agreement regarding retroactive child support.

The standard of review for a child support award is abuse of discretion. Karimi v. Karimi, 867 So.2d 471, 473 (Fla. 5th DCA 2004). Although the child support guidelines set forth in section 61.30, Florida Statutes, do not address a split custody situation, where, as here, both parties earn income, it is an abuse of discretion not to award both parties child support. See Devereaux v. Devereaux, 710 So.2d 1043 (Fla. 2d DCA 1998) (holding that in a split custody case where each parent had income and the father was ordered to pay support for the child in the mother’s custody, the trial court should have also required the mother to pay child support for the child in the father’s custody).

In Devereaux, the second district noted that “[t]he general approach for setting child support in a split custody case is ‘the trial court first determines the total child support obligation and each child’s share of that obligation. Thereafter, the court determines the method of parental payment that gives each child his or her share while assuring that each parent pays no more than the proper percentage of the total support.’” Id. at 1043^44 (quoting Gingola v. Velasco, 668 So.2d 1054, 1054 n. 1 (Fla. 2d DCA 1996)).

In Kelley v. Kelley, 987 So.2d 1246, 1248 (Fla. 5th DCA 2008), the fifth district agreed that the method of calculation proposed by the husband, which conformed with Devereaux and Gingola, was appropriate in that it allocated each child an equal amount of the total support ordered. The court stated that in a split custody situation, “Husband should pay his share of support of the child residing with Wife, less the amount Wife owes him for her share of the child residing with Husband.” Id. However, the court acknowledged this was not the only way to calculate support and that a different method for determining support could be chosen. Id. at 1248 n. 1.

We have similarly ruled that, so long as each parent is required to pay his or her pro rata share of support, the trial court has discretion to determine how to calculate the split custody offset. Simpson v. Simpson, 680 So.2d 1085, 1085-86 (Fla. 4th DCA 1996). Because the trial court failed to calculate and award child support to the father for the child residing with him and to offset that from the amount of child support owed to the mother, we reverse and remand for the trial court to re-calculate the parties’ child support obligations and to identify the child support calculation method used.

We affirm, however, on the issue of retroactive child support. As mentioned above, the trial court stated in the final judgment that counsel for the father had agreed to the amount of retroactive support being awarded. Without a transcript to support the father’s claim that the trial court misinterpreted his statement, we are unable to reverse on this point. However, on remand, the trial court can decide whether to revisit the issue of retroactive child support.

Affirmed in pari, Reversed in part and Remanded.

GERBER and LEVINE, JJ., concur.

      . Neither party disputes that the trial court correctly derived this basic support obligation. The parties also agree that the father earns 55% of their combined net incomes.

      . In a dissenting opinion, Judge Warner suggested that we adopt a uniform method of calculation to avoid different results depending upon the calculation method selected. Simpson, 680 So.2d at 1088 (Warner, J., dissenting). She also suggested a methodology that would be more in keeping wilh the child support guidelines and recognize that "certain constant expenses of the custodial parent will be a part of child support no matter how many children are being supported.” Id.


text:
    Vannie NEWTON, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4611.
    District Court of Appeal of Florida, Fourth District.
    March 24, 2010.
    Rehearing Denied April 30, 2010.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The state filed a nine-count information against appellant, Vannie Newton, Jr. He was charged with one count of organized scheme to defraud and three counts of third degree grand theft, all of which were alleged to have occurred on June 28, 2007, and upon the property of Newton’s employer. Newton was also charged with three counts of uttering a forged instrument on June 28, 2007, and two more counts which occurred on July 31, 2007. Newton pleaded to all the charges. He was sentenced to five years in prison on the charge of organized scheme to defraud with credit for 191 days time served. For one of the counts of grand theft, he was sentenced to five years with credit for 191 days time served to run consecutively to the first five years. On the rest of the counts, he was sentenced to five years probation to run consecutively to the two prison terms.

Newton argues that his convictions for both organized scheme to defraud and the three grand thefts violate his double jeopardy protections. “A double jeopardy claim based upon undisputed facts presents a pure question of law and is reviewed de novo.” Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006). “It is undisputed that double jeopardy principles preclude convictions for both grand theft and organized fraud based upon the same conduct.” Id. See also Pineda v. State, 3 So.3d 1289 (Fla. 4th DCA 2009). The grand thefts, which were facilitated by his forgeries of his employer’s checks, are the same conduct upon which the organized scheme to defraud charge was based. See Donovan v. State, 572 So.2d 522 (Fla. 5th DCA 1990) (holding defendant’s convictions for organized fraud, forgery, and uttering false instruments were proper, but that he cannot also be lawfully convicted of theft).

Newton’s convictions for grand theft are a double jeopardy violation and, therefore, the lesser offenses must be reversed. We remand for resentencing for organized scheme to defraud due to the possibility that the reversal of the grand theft counts thwarts the intentions of the trial court’s sentencing plan. Donovan, 572 So.2d at 527 (reversal of convictions for lesser offenses allows for resentencing on the greater offense).

Newton also argues that the trial court erred in not vacating from his order of probation the portion of a standard condition of supervision requiring him to submit at any time to warrantless searches by a law enforcement officer. He submits that this is a special condition that must be orally pronounced at sentencing. The condition not orally pronounced was: “(14) You shall submit your person, property, place of residence, vehicle or personal effects to a warrantless search at any time, by any probation, or community control officer or any law enforcement officer.”

“[A] condition of probation which is statutorily authorized or mandated, see, e.g., section 948.03-.034, Florida Statutes (1993), may be imposed and included in a written order of probation even if not orally pronounced at sentencing.” Cole v. State 932 So.2d 1123, 1124 (Fla. 4th DCA 2006). “With regard to a special condition not statutorily authorized, however, the law requires that it be pronounced orally at sentencing before it can be included in the written probation order.” Id. (quoting Nank v. State, 646 So.2d 762, 763 (Fla. 2d DCA 1994)).

Section 948.03(l)(b), Florida Statutes (2007), provides that a probationer shall “[pjermit such supervisors to visit him or her at his or her home or elsewhere.” Condition (9) of the probation order form found in Florida Rule of Criminal Procedure 3.986(e) provides: ‘You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.” Neither the statute nor the rule authorizes a law enforcement officer to visit a probationer for an administrative search without the presence of his or her probation officer. Therefore, a condition which so provides must be orally pronounced.

The state asserts that the standard condition satisfies the spirit of section 948.03(l)(b) because a law enforcement officer is permitted to accompany a probation officer on an administrative search for the protection of probation personnel. Although we agree that a law enforcement officer is permitted to accompany a probation officer on an administrative search, Condition 14 authorizes a law enforcement officer to visit a probationer without his probation officer and this is not statutorily authorized. Because it was not orally pronounced as a special condition, this portion of Condition 14 must be stricken.

Reversed and Remanded with instructions.

FARMER, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Timothy L. BELLAMY, Appellant, v. James V. CROSBY, James R. McDonough, Walter A. McNeil, Secretary, Florida Department of Corrections, Appellees.
    No. 1D08-4471.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Timothy L. Bellamy, pro se, Appellant; Nancy A. Daniels, Public Defender, Kathleen Stover, Assistant Public Defender, and Edgar Lee Elzie, Jr., Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Charmaine Millsaps, Assistant General Counsel, Trisha Meggs Pate, Assistant Attorney General, and Charlie McCoy, Senior Assistant General Counsel, Office of the Attorney General, Tallahassee; Kathleen Von Hoene, General Counsel, Department of Corrections, Tallahassee, for Appellees.
   PER CURIAM.

This case reaches us after the United States District Court for the Northern District of Florida granted the defendant’s petition for habeas corpus in part and ordered a new direct appeal from his criminal conviction in the state circuit court. We conclude that the defendant is entitled to a new trial, because the trial court committed reversible error by failing to determine whether the state’s purported race-neutral reasons for striking two jurors during voir dire were genuine or a pretext.

Timothy Bellamy was charged with one count of burglary of a dwelling with an assault, one count of armed robbery with a firearm, and one count of aggravated battery with a deadly weapon. The charges arose out of a home invasion robbery in 1999 in Jefferson County. The defendant is a black male, and the two victims were white.

At jury selection, the defendant objected to a number of the state’s peremptory challenges to various jurors. The challenges to two potential jurors, named Branham and Blow, are involved in the present appeal. Both Branham and Blow were black. Defense counsel objected to the state’s peremptory challenge to these individuals, based on Neil v. State, 457 So.2d 481 (Fla.1984), but the trial court overruled both objections and allowed the state to strike the jurors.

Ms. Blow revealed during voir dive that three of her children and three of her grandchildren had been robbed in Leon County. When asked whether she thought that this would impact her ability to be a fair and impartial juror, she replied, “No.” Later, the following exchange occurred:

PROSECUTOR: We excuse Blow.
DEFENSE COUNSEL: We are going to make a Neil challenge again. PROSECUTOR: Children were victims of a robbery.
DEFENSE COUNSEL: How does that hurt your case?
PROSECUTOR: It is not a function of what it hurts or not.
DEFENSE COUNSEL: That is a pretext.
STATE: It is not a pretext.
DEFENSE COUNSEL: ... [L]et me make it clear that Barbara Blow was black, [potential juror] Bassa was black, [potential juror] Willie Roberts was black, Edward Bellamy is black.... I am just putting on the record here that you have excused every black that’s been on this jury.
THE COURT: ... [H]e has not.... [Prospective juror Cuyler] is on the jury, and Huggins is on the jury.

Questioning of Ms. Branham by the prosecutor revealed that she was a senior technician with the Florida Department of Corrections. She further stated that she worked in the main office of the DOC in Tallahassee and that her main responsibility was incorporating sentences with the sentence an inmate had already served. When asked whether there was anything about her employment that would affect her ability to be fair and impartial, Bran-ham replied, “No.” The following exchange subsequently took place when Branham was included in the group of potential jurors from which the jury was being chosen:

PROSECUTOR: We would strike Ms. Branham, number two....
DEFENSE COUNSEL: We will make another Neil challenge on Ms. Branham.
PROSECUTOR: She works for the Department of Corrections. And as it says here, friends can be enemies. That’s what we learned at the seminar. Don’t necessarily assume — •
DEFENSE COUNSEL: She is another black female.

Once the jury was selected but before it was sworn, defense counsel moved for a new trial, asking that the entire jury be dismantled and a new jury be chosen. The motion was based on the defendant’s Neil challenges to the black jurors, including Branham and Blow, on whom he asserted the state had improperly used peremptory strikes. The trial court denied the motion, stating, “I have heard all of the Neil challenges that have been made, and there have been race neutral reasons given for the challenges. And the state has not challenged solely African-American prospective jurors but has challenged some Caucasians also.”

The jury was then sworn, and the trial commenced. At the conclusion of the trial, the defendant was found guilty of one count of burglary of a dwelling with an assault, one count of armed robbery with a firearm, and one count of the lesser included offense of battery. The trial court sentenced him to consecutive life sentences on the burglary and robbery counts.

The defendant appealed his conviction and sentences to this Court, raising one issue: whether the trial court improperly limited cross-examination of the cooperating codefendant, who had received a six-year sentence. We affirmed without written opinion on August 13, 2002. See Bellamy v. State, 825 So.2d 370 (Fla. 1st DCA 2002).

The defendant then filed a petition for writ of habeas corpus in this Court, alleging ineffective assistance of appellate counsel. He argued that his appellate attorney was ineffective for failing to raise claims based on the state’s improper peremptory challenges of black jurors during voir dire. We denied the petition. See Bellamy v. State, 843 So.2d 261 (Fla. 1st DCA 2003). Then the defendant filed a rule 3.850 post-conviction motion in the trial court, raising multiple claims of ineffective assistance of counsel. The trial court summarily denied the motion on March 8, 2004, and we affirmed the denial on January 10, 2005. See Bellamy v. State, 894 So.2d 245 (Fla. 1st DCA 2005).

On May 31, 2005, the defendant filed a petition for writ of habeas corpus in the United States Court for the Northern District of Florida, raising, inter alia, the issue of the peremptory challenges to Branham and Blow. The magistrate judge issued a written order and recommendation, finding that the defendant was entitled to relief. She determined that the trial court had not evaluated the state’s facially race-neutral responses to the defendant’s Neil claims or made a determination whether there was purposeful discrimination, as required by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). Further, the magistrate found that the defendant’s appellate counsel was ineffective for failing to raise the Batson issues on appeal and that these issues would have succeeded on appeal. Based on these findings, the magistrate recommended that the defendant receive a new trial.

After reviewing the magistrate’s recommendation and the exceptions the parties filed thereto, the senior district judge issued an order granting the writ of habeas corpus as to the Batson issues regarding jurors Blow and Branham. However, he rejected the magistrate’s recommendation of a new trial and ordered instead that the defendant be allowed to file a new appeal in this court. The case is now before us on a new direct appeal from the state court judgment and sentence, as ordered by the federal habeas court.

When a party objects to a peremptory challenge as being based on race, the test for determining whether the challenge is valid was established by the U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 96-98, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986). As the Florida Supreme Court explained in Melbourne v. State, 679 So.2d 759 (Fla.1996), the analysis has three steps.

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike. If these initial requirements are met (step 1), the court must ask the proponent of the strike to explain the reason for the strike.
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

Melbourne, 679 So.2d at 764 (footnotes omitted); see also Purkett v. Elem, 514 U.S. 765, 767-68, 115 S.Ct. 1769, 131 L.Ed.2d 834, reh’g denied, 515 U.S. 1170, 115 S.Ct. 2635, 132 L.Ed.2d 874 (1995); Hoskins v. State, 965 So.2d 1, 7 (Fla.2007).

The court in Melbourne explained that genuineness means whether the strike was based on purposeful discrimination. Once the proponent of the strike offers a race-neutral reason, the court must proceed to the genuineness determination in step three. It may not skip step three or conflate it with step two. While the justification for the strike need not be plausible on its face, if it is race-neutral, the court must go on to evaluate the persuasiveness of the reason in the genuineness determination of step three.

It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. At that stage, implausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination. But to say that a trial judge may choose to disbelieve a silly or superstitious reason at step three is quite different from saying that a trial judge must terminate the inquiry at step two when the race-neutral reason is silly or superstitious. The latter violates the principle that the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.

Purkett, 514 U.S. at 768, 115 S.Ct. 1769.

In the present case, the record reflects that, although the trial court found the state’s reason for striking jurors Blow and Branham to be race-neutral, it did not engage in the genuineness determination part of the analysis at all. When the defendant raised a Neil challenge to the state’s striking of Blow, the state offered the race-neutral reason that her children had been the victims of robbery. The defense asserted that the reason was a pretext, which the prosecutor denied. Defense counsel then stated that the prosecution had stricken all the black prospective jurors, but the trial court pointed out that two black venire members, Cuyler and Huggins, remained. However, as the federal magistrate noted in her Order Report and Recommendation, the state later excused both Cuyler and Huggins after the trial court pointed out that they remained on the jury. Prior to this, the state had stricken eight black potential jurors.

The state’s reason for striking juror Blow — that her children had been the victims of a robbery — does not logically support the state, as opposed to the defendant, striking this juror. As the magistrate explained, “[i]f anything, any potential bias held by the juror would have been against [the defendant], as the juror would be inclined to sympathize with the victims of the robbery.” The fact that the state dismissed the defendant’s question as to how that would hurt the state’s case suggests that the prosecutor believed that any race-neutral reason was sufficient to allow it to strike a black juror. However, Bat-son and Melbourne require that, after the proponent of the strike has offered a race-neutral explanation, the court must go on to determine whether the opponent of the strike has established purposeful discrimination. See, e.g., Batson, 476 U.S. at 96-98, 106 S.Ct. 1712.

Despite the pattern of striking black jurors and the unreasonable, albeit facially race-neutral, justification the state offered for striking Blow, the trial court did not make a finding as to whether the reason offered for the strike was a pretext. Instead, it simply stated, “I have heard all of the Neil challenges that have been made, and there have been race-neutral reasons given for the challenges.” It did not make the next step of going on to the third part of the analysis, determining the genuineness of the state’s reasons.

Likewise, after hearing the state’s purportedly race-neutral reason for striking Branham — that she worked for the De-pai’tment of Corrections — the judge failed to make a record determination whether the reason was pretextual. The reason certainly was no more logical on its face than was the reason given for striking Blow. A DOC employee would naturally be perceived as more sympathetic to the state than to the defense, if any bias existed. Yet the trial court went no further than to find that the reason offered for striking Branham was race-neutral. It failed to make a finding whether there was any purposeful discrimination.

After the jury was selected but before it was sworn, the trial court denied the defendant’s motion for a new trial, stating, “I have heard all of the Neil challenges that have been made, and there have been race neutral reasons given for the challenges. And the state has not challenged solely African-American prospective jurors but has challenged some Caucasians also.” Whether the state struck whites as well as blacks is irrelevant under the Batson analysis. The question is whether, in the case of any individual juror, the reason for the strike was purposeful discrimination. See United States v. David, 803 F.2d 1567, 1571 (11th Cir.1986) (explaining that, even if a white juror was also struck, the striking of one black juror for purposefully racially discriminatory reasons violates the Equal Protection Clause).

This case is factually similar to Simmons v. State, 940 So.2d 580 (Fla. 1st DCA 2006). In Simmons, this court held that the record indicated that the trial court failed to conduct the third step in the Batson/Melboume analysis. Defense counsel challenged the state’s reason for striking a potential juror, and the trial court responded, “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” Simmons, 940 So.2d at 582. This court explained that, in so doing, the trial court reversibly erred: “By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.” Simmons at 582-83.

Relying on Simmons, this court recently reversed and remanded for a new trial in another case in which the trial court failed to make the required finding as to pretext. See Tetreault v. State, 24 So.3d 1242 (Fla. 1st DCA 2009) (reversing and remanding for new trial where the state offered a gender-neutral reason for striking males from the jury panel, but the trial court “did not make a finding, implicit or otherwise, that the gender-neutral reasons were genuine. Accordingly, because the record does not indicate that the trial court engaged in the required third step of the Melbowme analysis, we are required to reverse and remand for a new trial.”).

The instant appeal presents the same situation as existed in Simmons and Te-treault: a record devoid of any findings that the purportedly neutral reasons for striking jurors Blow and Branham were not pretextual. Therefore, as in Simmons and Tetreault, the defendant’s conviction must be reversed and the case remanded for a new trial.

Reversed.

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


author: CLARK, J.

text:
    Djelien PIERRE, Appellant, v. R & S ASSEMBLY INC., and Summit Holdings, Appellees.
    No. 1D09-1805.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      David M. Cohen, Miami Beach, and Bill McCabe, Longwood, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   CLARK, J.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) denying his claim for temporary partial disability (TPD) benefits. Specifically, Claimant asserts the JCC erred in determining Claimant failed to establish a causal connection between his compensable injuries and wage loss. Because competent substantial evidence supports the JCC’s order, we affirm.

Factual Background

Claimant sustained an injury on October 4, 2006, while working as a repairman for the Employer/Carrier (E/C). The E/C accepted the accident as compensable and referred Claimant to a physician for treatment. Claimant was eventually released to medium-duty work and, in December 2006, Claimant resumed working for the E/C in a modified medium-duty position. Subsequently, on February 16, 2007, the E/C terminated Claimant for economic reasons. Claimant has not worked in any capacity since this time.

On August 6, 2008, Claimant filed a petition for benefits seeking TPD benefits beginning February 17, 2007. The E/C defended against the claim by asserting that Claimant’s wage loss was not causally related to his workplace injury.

After a final hearing, the JCC found Claimant made no meaningful attempt to seek employment until 2008. The JCC also found Claimant’s testimony regarding his attempts to return to work in 2008 “evasive and devoid of credibility.” The JCC found Claimant’s performance of medium-duty work exhibited his ability to perform more than menial tasks. Ultimately, the JCC concluded Claimant failed to establish a causal connection between his injuries and his inability to earn similar wages.

Analysis

At the outset, we note the JCC’s order comes to us clothed with a presumption of correctness. See Carroll Steel Erectors v. Alderman, 599 So.2d 181 (Fla. 1st DCA 1992) (recognizing presumption of correctness afforded to JCC’s findings of fact). As such, the JCC’s factual findings will not be disturbed unless Claimant can demonstrate no competent substantial evidence supports them. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993).

To obtain benefits, a claimant carries the initial burden of demonstrating a causal connection between his injury and subsequent wage loss. Interim Servs. v. Levy, 843 So.2d 915 (Fla. 1st DCA 2003). Whether a claimant has established this requisite causal connection constitutes a question of fact determined by the JCC. Stewart v. CRS Rinker Materials Corp., 855 So.2d 1173, 1177 (Fla. 1st DCA 2003). A JCC is required to consider the totality of the circumstances in determining whether a claimant’s inability to work is causally related to his workplace injury. Id.

Although a job search is not an absolute prerequisite for an award of workers’ compensation benefits, “it is still necessary for the claimant to show a causal connection between the industrial injury and a resulting loss of earnings, and an unsuccessful job search may be a pertinent factor in determining whether the claimant has satisfied this burden.” Barfield v. Universal Forest Prods., 813 So.2d 285 (Fla. 1st DCA 2002); see also Levy, 843 So.2d 915 (noting unsuccessful job search can be a factor in considering totality of circumstances as to causal connection between injury and wage loss). Accordingly, the JCC may properly consider a claimant’s work search (or lack thereof) in the causation analysis.

There is sufficient evidence to support the JCC’s conclusion that Claimant failed to establish the requisite causal link between his injury and loss of earnings. We further find the JCC did not err in considering Claimant’s unsuccessful job search as a factor in his assessment of the totality of the circumstances. Accordingly, we AFFIRM the JCC’s order.

HAWKES, C.J., and ROBERTS, J., concur.


author: THOMAS, J.

text:
    Kathryn SCHINDELAR, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Express.Net Airlines, LLC, Appellees.
    No. 1D07-4521.
    District Court of Appeal of Florida, First District.
    March 25, 2010.

      Kathryn Schindelar, pro se, Appellant.
    Geri Atkinson-Hazelton, General Counsel, Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee Florida Unemployment Appeals Commission.
    Guilene F. Theodore and Deborah H. Oliver of Ruden, McClosky, Smith, Schus-ter & Russell, Tampa, for Appellee Express.Net Airlines, LLC.
   THOMAS, J.

Appellant appeals an order of the Unemployment Appeals Commission (Commission) denying her request to withdraw a claim for unemployment benefits. Because the Commission acted arbitrarily and without lawful authority in denying Appellant’s request, we reverse.

Procedural History

On January 8, 2007, the Agency For Workforce Innovation (Agency), in response to Appellant’s claim for unemployment benefits, issued a Wage Transcript and Determination report indicating that Appellant’s weekly benefit amount, if she qualified, was $275. The Agency determined on February 5, 2007, that Appellant was entitled to unemployment compensation benefits because her unemployment was due to a lack of work. After learning she may be entitled to benefits in New Jersey, her state of residence, Appellant sent a letter to the Agency on February 21, 2007, requesting that it cancel her unemployment claim in Florida, and enclosed with the request a certified check in the amount of the benefits she had already received. It was Appellant’s understanding that she could not pursue a claim in New Jersey until the Florida claim was cancelled. The Agency denied this request, and Appellant appealed.

On March 27, 2007, Appellant’s case was dismissed for lack of jurisdiction upon the Appeals Referee’s (Referee) finding that Appellant’s appeal was untimely. Appellant appealed, and the Commission reversed, finding the February 21 request for cancellation was not meant as an appeal of the January 8, 2007, Wage Transcript and Determination, but rather a request that Appellant be allowed to cancel her claim; thus, it was not subject to dismissal on jurisdiction grounds. Consequently, the matter was remanded for further proceedings.

On June 6, 2007, the Referee issued a decision finding Appellant’s claim was monetarily eligible, and Appellant began receiving benefits pursuant to that claim. The Referee also found Appellant did not present any testimony or evidence “to establish that she filed an appeal from the Wage Transcript and Determination, requesting that her Florida claim be can-celled,” nor did she present any testimony or evidence establishing that her claim should be cancelled “based on Agency error.” Pursuant to these findings, the Referee concluded Appellant failed to provide a legal basis for cancelling her Florida claim.

By order dated August 17, 2007, the Commission affirmed this decision, finding Appellant failed to demonstrate that the Agency abused its discretion by declining to grant Appellant’s request that she be allowed to withdraw her Florida claim. The Commission also found Appellant was not entitled to the requested relief, “including but not limited to an investigation of whether her employer acted illegally or fraudulently when it elected to pay employment taxes to Florida rather than to another entity of [Appellant’s] choice.” This appeal followed.

Analysis

The Referee’s decision stated that Appellant failed to establish that she filed an appeal from the Wage Transcript and Determination report requesting her Florida claim be cancelled, and also that she failed to establish that her claim should be can-celled due to Agency error. Accepting these findings, the Commission concluded that Appellant failed to provide a legal basis for cancelling her claim. Neither the Commission nor chapter 443, Florida Statutes, explains what a claimant must do to be so entitled. More importantly, nothing in either chapter 448 or the regulations promulgated by the Agency prohibits a claimant from cancelling a claim.

A Wage Transcript and Determination report does not determine eligibility for benefits; rather, it determines the amount of those benefits, should a claimant qualify. Thus, the Agency’s finding was correct that Appellant’s February 21 request for cancellation was not meant as an appeal of the January 8, 2007, Wage Transcript and Determination report, but rather a request that Appellant be allowed to cancel her claim. A claimant seeking unemployment benefits would have no reason to appeal a Wage Transcript and Determination other than to contest the potential benefit amount.

Here, Appellant timely appealed the Agency’s subsequent determination that she was entitled to benefits, and sent a letter to the Agency requesting that it cancel her unemployment claim so that she could file a claim in New Jersey, her state of residence. Appellant enclosed a check in an attempt to reimburse the Agency for the benefits she had already received. If a formal process does exist for requesting that a claim be cancelled, this is the logical stage of the process at which a claimant should do so, not when a Wage Transcript and Determination is issued. Thus, the Commission’s argument on appeal, that Appellant’s claim could not be cancelled because it became final once more than 20 days elapsed without an appeal of the Agency’s Wage Transcript and Determination, is meritless. In addition, this ai’gument is at direct odds with the Agency’s own previous finding that Appellant never contested the Wage Transcript and Determination.

An agency’s powers are limited to those conferred by the Legislature. See Lewis Oil Co. v. Alachua County, 496 So.2d 184, 188 (Fla. 1st DCA 1986) (holding administrative agencies have only the powers delegated by statute). Thus, in the absence of a specific statute authorizing the Agency to prevent a claimant from withdrawing her unemployment claim, it cannot do so. The Agency can promulgate rules and procedures for cancelling a claim. See § 443.1317, Fla. Stat. (2006) (providing the agency may adopt rules to administer provisions of chapter 443). Here, the Agency has not adopted a rule or procedure for withdrawing a claim; thus, it is inexplicable that it would find that Claimant has improperly withdrawn such a claim. In the absence of a specified procedure for submitting such a request, Appellant’s method was reasonable and sufficient.

Conclusion

Based on the foregoing, the Commission’s determination that Appellant failed to establish entitlement to cancel her Florida unemployment claim was clearly erroneous as a matter of law. The Commission’s order denying Appellant’s request to cancel her unemployment claim is REVERSED, and this cause is REMANDED for proceedings consistent with this opinion.

WEBSTER and LEWIS, JJ., concur.

      . As we learned in Appellant’s appeal in case # 1D07-6391, which is traveling with this case, Appellant continued to receive benefits after the Commission denied her request to cancel her claim, and the Commission eventually sought reimbursement of the overpaid portion of those benefits. Ironically, the amount of the overpayment was identical to the amount Appellant tried to reimburse. Although we have per curiam affirmed the Commission's order in case # 1D07-6391, we note that the litigation in both appeals would have been avoided had the Agency allowed Appellant to cancel her claim.


text:
    Jerrick E. BROWN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-6001.
    District Court of Appeal of Florida, First District.
    March 25, 2010.
    Jerrick E. Brown, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner is hereby granted a belated appeal of the August 4, 2009, order denying a motion for postconviction relief in Duval County Circuit Court case number 16-2007-CF-010348-XXXX-MA. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WOLF, WEBSTER, and THOMAS, JJ., concur.