CUNNINGHAM v. UNEMPLOY. APP. COMM., 834 So.2d 336 (Fla.App. 5 Dist. 2003)

Case No. 5D02-1672District Court of Appeal of Florida, Fifth District.
Opinion filed January 3, 2003

Administrative Appeal from the Unemployment Appeals Commission.

Phillip Cunningham, Dunnellon, pro se.

John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee Unemployment Appeals Commission.

SHARP, W., J.

Cunningham appeals an order of the Unemployment Appeals Commission which required him to repay unemployment benefits. We affirm.

The appeals referee determined after a hearing that Cunningham was disqualified from receiving unemployment compensation benefits and that he had been overpaid. A finding was made that Cunningham fraudulently represented his claim and fraudulently obtained payment of benefits for which he was disqualified. The referee rejected Cunningham’s testimony that he did not receive wages for the services rendered during the applicable time period.

The existence of fraud vel non in a particular case is a question of fact. Haendel v. Paterno, 388 So.2d 235 (Fla.

Page 337

5th DCA 1980). Without a transcript,[1] Cunningham cannot establish that a finding on this issue is erroneous. See Smith v. Unemployment Appeals Commission, 823 So.2d 873
(Fla. 5th DCA 2002) (appeals referee’s determinations of fact are presumed correct and it is impossible for a claimant to establish error without a transcript); Fryburg v. Unemployment Appeals Commission 799 So.2d 281 (Fla. 5th DCA 2001) (where focus of claimant’s argument is the fact findings made by the appeals referee, failure to include a copy of the transcript of the hearing as part of the record on appeal is fatal).

AFFIRMED.

ORFINGER, J., and COBB, W., Senior Judge, concur.