author: COPE, J.

text:
    Senator Alex DIAZ de la PORTILLA, Appellant, v. FLORIDA ELECTIONS COMMISSION, Appellee.
    No. 3D02-574.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Rehearing Denied Oct. 29, 2003.

      Sale & Kuehne, P.A., and Benedict P. Kuehne, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and John J. Rimes, III, Assistant Attorney General, for appellee.
    Before COPE, LEVY and FLETCHER, JJ.
   COPE, J.

State Senator Alex Diaz de la Portilla appeals an order of the Florida Elections Commission imposing fines of $311,000 for violations of Florida’s campaign financing law. It is undisputed that significant numbers of contributions and expenditures were omitted from the Senator’s campaign treasurer’s reports in the 1999 special election. The issues on this appeal include how many violations were properly charged; what is the standard of proof; and whether the evidence supports the conclusion that the claimed violations were willful rather than inadvertent. We affirm in part and reverse in part.

I.

On October 29, 1999, the Secretary of State announced a vacancy in State Senate District 34 in Miami-Dade County.

The election timetable was short. A first primary was scheduled December 14, 1999, some six weeks after the vacancy was announced.

At that time, Senator Diaz de la Portilla was a state representative. He resigned his seat in the House of Representatives and qualified for the election for the State Senate seat. Three other candidates qualified.

Because all four candidates were Republicans, this meant that all registered voters were eligible to participate in the election. See Art. VI, § 5(b), Fla. Const, (as amended 1998). In the first primary, Senator Diaz de la Portilla received a majority of the votes, and was elected.

In January 2000 a complaint was made to the Florida Elections Commission that the Diaz de la Portilla campaign (“Campaign”) had violated Florida’s campaign financing law. See ch. 106, Fla. Stat. (1999). The Elections Commission found probable cause and instituted proceedings against Senator Diaz de la Portilla. Soon thereafter the Campaign filed amended treasurer’s reports disclosing a significant number of previously unreported contributions and expenditures.

The case proceeded to a hearing before an administrative law judge. The main disputed issue before the law judge was whether there had been any willful violation of the law by then-candidate Diaz de la Portilla personally.

The campaign treasurer testified that he had devised a system for photocopying all contribution checks, and for recording all expenditures. He had used this system successfully in the past. He turned the responsibility over to campaign volunteers who then failed to follow the instructions. The treasurer spent his time campaigning, spent little time in the office, and failed to supervise those who were handling the funds. He took responsibility for the incomplete reports.

The administrative law judge was satisfied the underreporting of contributions and expenditures had been neither premeditated nor intentional on the candidate’s part. However, the administrative law judge concluded that the candidate bore responsibility under the provisions of chapter 106.

The administrative law judge found 309 violations of chapter 106. He recommended a fine of $79,500.

The Elections Commission adopted the administrative law judge’s findings of fact and adopted his conclusions of law with modifications. The Commission ruled that the findings supported the existence of 311 violations of chapter 106. The Commission increased the civil penalty to $1,000 per count, for a total of $311,000.

Senator Diaz de la Portilla has appealed.

II.

The Legislature has established a high standard which must be met in order for a fine to be imposed under chapter 106, Florida Statutes.

1. The Commission may impose a fine of up to $1,000 per count for a willful violation of chapter 106. See §§ 106.25(3), 106.265(1), Fla. Stat. (1999).

A willful violation is a knowing violation of the statute. Id. § 106.37. A willful violation also includes a reckless violation, that is, an act showing a reckless disregard for whether the action is required or permitted under chapter 106. Id.

No fine can be imposed for an inadvertent violation, nor can any fine be imposed where the defending party was negligent, that is, where the defending party failed “to exercise the degree of care that someone of ordinary prudence would have exercised in the same circumstance ....” Black’s Law Dictionary 1058 (7th edition 1999) (defining “negligent”).

2. Because this is a civil statute of a penal nature, any ambiguity in the substantive statute must be construed in favor of the defending party and against the Commission. See United Wisconsin Life Ins. Co. v. Office of Ins. Regulation, 849 So.2d 417 (Fla. 1st DCA 2003), and cases cited therein.

3. We agree with the administrative law judge that the standard of proof in a case seeking fines under chapter 106 is clear and convincing evidence. See Dept. of Banking and Fin. v. Osborne Stern & Co., 670 So.2d 932, 935 (Fla.1996); Latham v. Florida Comm’n on Ethics, 694 So.2d 83, 84-86 (Fla. 1st DCA 1997). We reverse the Commission’s ruling that the correct standard is preponderance of the evidence.

4. There is no vicarious liability under chapter 106. The administrative law judge found that the campaign treasurer in this case had been reckless. The candidate is not vicariously liable for the acts of the campaign treasurer. In order to impose a fine on the candidate, there must be a determination that the candidate himself is guilty of a willful violation as defined by the statute.

III.

The Commission charged the Senator with three violations of subsection 106.07(5), Florida Statutes (1999), which requires the candidate and his or her campaign treasurer to certify the correctness of each campaign treasurer’s report.

The key features of the campaign financing law are:

(1) The candidate shall appoint a campaign treasurer and campaign depository;
(2) All contributions and expenditures must go through the campaign depository; and
(3) The campaign must file public reports of the contributions and expenditures at the times provided by law.

The Campaign complied with items one and two. The candidate designated a campaign treasurer with prior experience, and designated a campaign depository. All of the contributions and expenditures went through the depository.

As to item three, campaign treasurer’s reports were due during the special election. These omitted significant numbers of contributions and expenditures.

Florida law requires that a campaign treasurer’s report be signed by both the campaign treasurer and the candidate. The statute provides, in part:

(5) The candidate and his or her campaign treasurer ... shall certify as to the correctness of each report; and each person so certifying shall bear the responsibility for the accuracy and veracity of each report.

§ 106.07(5), Fla. Stat. (1999). Thus, a candidate or campaign treasurer who willfully violates this statute is subject to being fined.

The campaign treasurer in this case testified that he personally prepared all of the campaign treasurer’s reports. Thus, the campaign treasurer’s certification is based on the campaign treasurer’s personal knowledge and inspection of the campaign finance records.

The candidate’s certification of the correctness of the report, however, presents a more problematic issue. The issue on which the two sides disagree is, what steps must the candidate take prior to signing the certification on the campaign treasurer’s report?

We first consider the apparent reason that this provision was added to the campaign finance law. Under an earlier version of the election law, the candidate was required to report contributions and expenditures to his or her campaign treasurer. State v. Buchanan, 189 So.2d 270, 270-71 (Fla. 3d DCA 1966) (quoting § 99.161(8)(a), Fla. Stat. (1963)). The statute went on to say, “ ‘The campaign treasurer shall certify as to the correctness of each report and the candidate shall also bear the responsibility for the accuracy and veracity of each report.’ ” 189 So.2d at 271 (quoting § 99.161(8)(c), Fla. Stat. (1963)).

In Buchanan the candidate was charged with accepting contributions which he failed to disclose to his treasurer, and giving the campaign treasurer affirmatively incorrect information, which the campaign treasurer included in his report. Eight criminal charges against the candidate for false campaign reporting were dismissed because the candidate was not the reporting officer and had not certified to the accuracy of the report. 189 So.2d at 272. In 1973, the campaign finance law was rewritten to include the requirement that the candidate and campaign treasurer both certify as to the correctness of each treasurer’s report. Ch. 73-128, § 7, Laws of Fla. (initially codified as § 106.07(6), Fla. Stat. (1973)); see also State v. Doyen, 224 Kan. 482, 580 P.2d 1351, 1355 (1978).

Against that background, the candidate’s certification is, at a minimum, his sworn statement that all contributions and expenditures have, to his knowledge, gone through the campaign depository and have been properly disclosed to the treasurer. It also constitutes the candidate’s representation that he has read the report and that it is, to his knowledge, complete and correct.

IV.

The Commission argues, however, and the administrative law judge accepted, the proposition that the candidate must do more before certifying to the correctness of the campaign treasurer’s report. The Commission contends that the candidate must audit the work of the treasurer before signing the report.

Turning first to the responsibilities of the campaign treasurer, the treasurer must maintain complete and accurate records of all of the campaign’s contributions and expenditures. The Division of Elections has promulgated forms for the treasurer’s reports. The Commission contemplates' (correctly) that the campaign treasurer will use the forms (or some equivalent) to record the contributions and expenditures as they occur. The treasurer should also maintain photocopies of the checks or other appropriate documentation. The worksheets and backup documents will then be used by the campaign treasurer to prepare each campaign treasurer’s report for filing on the statutory deadlines. The treasurer is required to sign the report and does so, of course, on the basis of his or her personal knowledge and work in preparing the report. § 106.07(5), Fla. Stat. (1999).

Turning to the responsibility of the candidate, the candidate must sign the report, thereby certifying as to its correctness. Id. It is the Commission’s position that before doing this, the candidate must audit the work of the treasurer. The Commission contemplates, as we understand it, that the candidate will compare, item by item, the entries on the treasurer’s worksheet with the entries on the final typed report.

Relying on this proposition, the administrative law judge found that the candidate had “failed to examine any ‘back-up’ documentation reflecting contributions or expenditures before certifying that his three erroneous campaign treasurer’s reports were true, correct, and complete .... ” R. 365. The administrative law judge apparently contemplated that the candidate would not only compare the final proposed report against the campaign treasurer’s worksheets, but would also require the candidate to compare the entries on the treasurer’s report against the photocopies of each incoming contribution check or outgoing payment check.

We simply do not think this is a reasonable interpretation of chapter 106. Such an “auditing” requirement is nowhere stated in chapter 106. And to choose the clearest example, we fail to see how such an auditing or verification requirement would even be physically possible in the case of statewide races for governor. If it is true that the candidate must personally verify every single entry and every piece of backup information supporting a contribution or expenditure, then the candidates would have to leave off campaigning completely, or for great periods of time, to personally reeheck the work the campaign treasurer has done. It is true that local political campaigns are smaller than statewide campaigns, but chapter 106 does not distinguish between state and local offices in the reporting requirements.

The campaign treasurer is a formally designated campaign officer under the statute, see § 106.021, Fla. Stat. (1999), who is subject to being fined by the Commission (just like the candidate) if the campaign treasurer commits willful violations of the election law. Id. §§ 106.19, 106.25(3), 106.265(1). In the case of the treasurer’s report, the report bears the signatures of both the treasurer and the candidate, and either or both are subject to discipline in the event of a willful violation.

We think the better interpretation of the statutory scheme is that the candidate is allowed to rely on the work of the campaign treasurer in maintaining the campaign records and preparing the treasurer’s reports, so long as all of the contributions and expenditures are routed through the campaign depository, and the candidate has appointed a campaign treasurer who is qualified to perform the duties of the office. The candidate must, however, conduct a facial review of the report to make sure that there are no errors or omissions based on the candidate’s own knowledge of the campaign and its financial affairs.

In the present case, the administrative law judge concluded that the candidate had been reckless because each time he signed the treasurer’s report, he did not examine any of the treasurer’s worksheets or other underlying documentation. Because we conclude that the candidate did not have the duty to conduct such a review, the ruling below was legally erroneous under this theory.

The administrative law judge also found that the candidate failed to supervise the campaign treasurer. We conclude that this part of the administrative law judge’s findings is not supported by the evidence.

The campaign treasurer testified that he had acted as campaign treasurer on previous occasions, without encountering any problems or being the subject of any discipline. We take judicial notice of the fact that the Division of Elections issues a handbook for treasurers. See § 106.22(2), Fla. Stat. (1999). The treasurer testified that he received the current manual and attended the training session for campaign treasurers.

It is difficult to see what else the candidate could have told the campaign treasurer that the campaign treasurer did not already know. The treasurer was well aware that he was supposed to be keeping complete records of every contribution and every expenditure, so as to be able to fill out the required campaign treasurer’s reports.

The administrative law judge found that the treasurer was reckless, R. 366, and we agree. The treasurer delegated the record keeping responsibility to subordinates, signed checks in blank, stayed away from the campaign office two or three days at a time, and failed to verify that the record keeping responsibilities were being carried out as he had instructed his subordinates to do.

So long as a qualified person has been appointed as campaign treasurer, especially someone with prior experience in that position, we fail to see why the candidate should anticipate that the treasurer will abdicate the most basic functions of maintaining current and complete records of the contributions and expenditures. The Commission’s position again appears to be one in which the candidate is required to double check all of the work of the treasurer — but if the candidate is to do this, then there is no need for the position of treasurer.

V.

The next question is whether the ruling below should be affirmed on an alternative theory supported by the record. See Dade County School Board v. Radio Station WQBA, 731 So.2d 638, 644-46 (Fla.1999). We conclude that the answer is yes.

As already stated, it is the duty of the candidate to read the treasurer’s report before signing it, and be alert for any errors which, based on the candidate’s own knowledge, appear on the face of the report. Failure to do so results in a violation of subsection 106.07(5) by the filing of an incorrect treasurer’s report. There are such errors in this case.

The initial page of each treasurer’s report is entitled Campaign Treasurer’s Report Summary. It identifies the reporting period and sets forth the total contributions and expenditures for the period, as well as cumulative total for the campaign. This is the signature page for the campaign treasurer and the candidate.

On the Campaign Treasurer’s Report Summary, there is a line item for “loans.” For the reporting period ending November 19,1999, the entry in the Summary for “loans” from the candidate was $10,000. The schedule attached to the report failed to include any reference to any loans. In reality, the loan amount from the candidate was $15,000. Thus, the November 19 report was incorrect.

For the reporting period ended December 9, 1999, the entry for “loans” in the Summary and in the schedule was $10,000, but the actual loan total was $82,000. Thus, the December 9 report was incorrect.

In finding violations as to these two treasurer’s reports, the administrative law judge found that “the campaign treasurer was unaware of loans made by Respondent to the campaign prior to reconciling bank records.” R. 359. Since “loans” was a line item on the signature page of the two cited reports, and the loan amounts were amounts that the candidate had contributed personally to the campaign, it may be reasonably concluded that the candidate in the press of the campaign simply failed to read the reports before signing them. The failure to read a required document before signing would be reckless and would meet the required legal standard. Accordingly, we affirm the finding of two violations of subsection 106.07(5) as to the two campaign treasurer’s reports for the periods ended November 19, 1999 and December 9,1999.

VI.

Closely related to the foregoing, but giving rise to separate charges, the Commission charged the candidate with failing to report 287 contributions on the schedules attached to the treasurer’s reports. The failure to so report is a violation of paragraph 106.19(l)(b), Florida Statutes.

These charges relate to contributions that went into the campaign depository without the treasurer making any proper record of them. The campaign treasurer prepared the treasurer’s report without including an itemized listing of these contributions in the schedules.

The administrative law judge and the Commission convicted the candidate of 287 violations. These convictions rested on the propositions discussed previously, namely, that the candidate had a duty to review the backup documentation for the report before signing it, and that the candidate had failed to supervise the campaign treasurer. For the reasons stated previously, we are unable to sustain that analysis.

We do, however, accept an alternative analysis on these charges with respect to the candidate loans. The loans should have been listed on the schedules of contributions attached to the reports for the periods ending November 19 and December 9. Since the candidate faded to list four loans this constitutes four violations of paragraph 106.19(l)(b).

VII.

We urge the legislature to revisit the issue of the candidate’s certification of campaign finance reports, with a view toward providing candidates more specific guidance.

Clearly it is important for the public to have accurate and timely disclosure of contributions and expenditures. It is of little help to the public if there is accurate reporting after the campaign is over.

It is equally important to the public for the candidates to have maximum ability to campaign during the campaign period. If the candidates are to conduct more than a facial review of the correctness of the campaign treasurer’s reports, then a system needs to be devised which is workable given the time demands of a political campaign.

VIII.

The Commission charged the candidate with making a cash contribution to the campaign of $10,000. The Commission charged that this transaction violated the $100 limit of subsection 106.09(1), Florida Statutes (1999), and the $500 limit of paragraph 106.08(l)(a), Florida Statutes.

The administrative law judge rejected these two charges. The Commission concluded that the administrative law judge had been incorrect on the law and found the candidate guilty of these two violations. We agree with the administrative law judge and reverse the Commission as to these two violations.

The parties’ pretrial stipulation stated that “[a] $10,000 cash contribution was deposited into Respondent’s campaign account on November 30, 1999.” After hearing the evidence, the administrative law judge found that “[t]he $10,000 customer deposit/cash contribution deposited in the campaign account on November 30, 1999, was, in fact, a campaign loan from Respondent in the form of a transfer from Respondent’s personal account.” R. 361-62. The administrative law judge found that there was no violation of the prohibition on cash contributions in excess of $100 and, since this was a loan from the candidate, there was no violation of the contribution limits.

On review of the exceptions by the prosecution, the Commission reasoned that the pretrial stipulation amounted to an admission of an illegal $10,000 cash contribution. The Commission took the position that by its literal words, the stipulation admitted a violation of both statutes.

The Commission erred in overturning the analysis of the administrative law judge. The statutory definition of “contribution” includes a loan. See § 106.011(3)(a), Fla. Stat. (1999). The stipulation established that $10,000 went into the campaign account on November 30. To determine whether there had been an election law violation, it was still necessary for the administrative law judge to understand the underlying nature of the transaction, and if there was a violation, whether the violation was willful.

We agree with the administrative law judge’s approach to the problem. A stipulation “should not be construed technically, but rather in accordance with its spirit, in furtherance of justice.” 2A Fla. Jur.2d Agreed Case and Stipulations § 6, at 218 (1998) (footnotes omitted); Troup v. Bird, 53 So.2d 717, 721 (1951); Travelers Ins. Co. v. VES Service Co., 576 So.2d 1349, 1350 (Fla. 1st DCA 1991); Jones v. Turlington, 504 So.2d 811, 813 (Fla. 3d DCA 1987); Gentile v. Dept. of Prof'l. Regulation, 448 So.2d 1087, 1089-90 (Fla. 1st DCA 1984). Accordingly we reverse the finding of violations on these two claims.

IX.

The Commission charged, and the administrative law judge found, violations of subsection 106.11(3) and 106.19(l)(d), Florida Statutes (1999) which prohibits any candidate, campaign manager, or treasurer from authorizing any expenses or signing a check drawn on the primary campaign account, unless there are sufficient funds on deposit. The treasurer testified that he believed there were sufficient funds in the campaign account to pay all campaign expenses as they became due. All checks cleared when redeposited.

Keeping track of the funds in the campaign account is clearly the responsibility of the treasurer. There is no showing that the candidate had anything to do with the writing of the checks. We see no basis on which to find a willful violation on the part of the candidate. Accordingly we reverse the finding of violations of the cited statutes.

X.

The Commission charged that the campaign ran five advertisements without the required disclaimer that they were paid political advertisements and without identifying the sponsor, in violation of subsection 106.143(1), Florida Statutes (1999). The Commission charged that five additional advertisements were run without stating the candidate’s political affiliation, in violation of subsection 106.143(2), Florida Statutes (1999). The Commission further charged that one political advertisement failed to state that it had been approved by the candidate and the identity of the person who paid for the advertisement, in violation of paragraph 106.143(4)(a), Florida Statutes (1999).

The testimony was that the campaign relied on an inexperienced volunteer to prepare the advertising. She assumed that the printer would insert all of the required disclaimers and candidate statements, but that did not happen. The candidate himself did not review the advertisements.

Because paragraph 106.143(4)(a) requires that political advertisements be approved in advance by the candidate, we uphold the finding of the administrative law judge. If the candidate had reviewed the advertisements as required, the deficiencies would have been apparent. The evidence is therefore legally sufficient on these claims.

XI.

We next consider the Campaign’s argument that the number of counts must be further reduced because of the way that the Commission pled its case. We reject this argument on the facts presented here.

Section 106.265, Florida Statutes authorizes the Commission to impose civil penalties for violations of chapter 106 “in the form of fines not to exceed $1,000 per count.” § 106.265(1), Fla. Stat. (1999) (emphasis added).

The term “count” has a generally understood meaning. It means “[i]n a complaint or similar pleading, the statement of a distinct claim.” Black’s Law Dictionary 353 (7th ed.1999).

In McGann v. Florida Elections Comm’n, 803 So.2d 763, 766 (Fla. 1st DCA 2001), the court ruled that the Commission must use a separately numbered paragraph for each violation on which the Commission seeks to impose a fine. We agree with McGann.

The Commission correctly points out, however, that this procedural argument was not made until after the hearing before the administrative law judge had concluded. This is not surprising because the administrative law judge entered his findings several months before McGann was announced.

If the issue had been raised at the outset of proceedings before the administrative law judge, clearly the matter could have been corrected by allowing the Commission to replead its counts in proper form. Since there is no indication that the Campaign was misled or otherwise prejudiced, we decline to grant relief on this theory.

XII.

We conclude that there must be a new hearing on the issue of penalty in light of the reduction of the number of violations and the views we have expressed regarding chapter 106. In addition, a new hearing on penalty is required because one of the commissioners who considered this case should have recused herself upon the motion filed by counsel for Senator Diaz de la Portilla. The motion asserted that Commissioner Byrd was a lobbyist in the 2001 legislative session and as such, opposed certain legislation which had been sponsored by the Senator.

It would be our view that one who lobbies the Legislature should not participate, over objection, in the decision of a complaint against a member of the Legislature. We conclude that the Commissioner should have recused herself and should not participate in proceedings on remand.

Regarding the setting of fines, section 106.265, Florida Statutes, lists several factors to be considered. Among the things to be taken into account is “[t]he appropriateness of such penalty to the financial resources of the person .... ” § 106.265(l)(c), Fla. Stat. The parties disagree on whose burden it is to introduce evidence into the record regarding the financial position of the accused.

We agree with the Commission that, in general, a party asserting the affirmative of a proposition has the burden of producing evidence on that proposition. See Young v. Dept. of Comty. Affairs, 625 So.2d 831, 833-34 (Fla.1993); Rinaldi v. Aaron, 314 So.2d 762, 764 (Fla.1975). Thus, if a defending party wishes his or her financial position to be taken into account as a matter in mitigation, that party should produce evidence of his or her financial resources. Where the defending party was the candidate for election, it may be most efficient to admit into evidence the most recent financial disclosure statement of the candidate. Since there must be further proceedings on the penalty issue, the Senator may introduce evidence of his financial position on remand.

XIII.

For the stated reasons, we affirm the order of the Commission in part, reverse it in part, and remand for a new hearing on the issue of penalty.

      . The fact that the violation must be willful is not explicitly stated in subsection 106.265(1), but derives from subsection 106.25(3).
      For certain violations the Commission may assess a "civil penalty equal to three times the amount involved in the illegal act.” Id. § 106.19(2).

      . Section 106.37, Florida Statutes, states:
      106.37 Willful Violations.—A person willfully violates a provision of this chapter if the person commits an act while knowing that, or showing reckless disregard for whether, the act is prohibited under this chapter, or does not commit an act while knowing that, or showing reckless disregard for whether, the act is required under this chapter. A person knows that an act is prohibited or required if the person is aware of the provision of this chapter which prohibits or requires the act, understands the meaning of that provision, and performs the act that is prohibited or fails to perform the act that is required. A person shows reckless disregard for whether an act is prohibited or required under this chapter if the person wholly disregards the law without making any reasonable effort to determine whether the act would constitute a violation of this chapter.
      106.37, Fla. Stat. (1999) (emphasis added).
      In its brief here, the Elections Commission has relied in part on pre-1997 administrative decisions interpreting the term "willful violation.” See Division of Elections v. Tanner, No. D0SFEC 95-130 (August 29, 1995); Division of Elections v. Inman-Crews, No. DOS-FEC 95-155 (December 4, 1995); and Division of Elections v. Miller, No. DOSFEC 95-131 (September 22, 1995). For the definition of "willful violations,” section 106.37 now defines the term and is controlling on the subject. The earlier administrative definitions of "willful violation” would appear to have little, if any, continuing validity.

      . We agree with the analysis of the administrative law judge, who stated:
      The Commission suggests that the importance of protecting the integrity of the election process, as opposed to merely punishing wrongdoers, makes the Campaign Financing Law "remedial” in nature, and suggests a lesser "preponderance of evidence” standard. Of equal importance is the right of citizens to seek public office; the ruinous effect a determination that the candidate has violated the Campaign Financing Law has on an individual’s reputation for personal integrity, and the potential of a fine (Commission suggests an appropriate fine in this case is $803,341.72) makes the Florida Campaign Financing Law essentially penal in nature and warrants a greater standard of proof, "clear and convincing evidence."
      (Citations omitted).
      While it is true that the parties had entered into a pretrial stipulation that the case would be governed by the preponderance of the evidence standard, that stipulation on a question of law was not binding on the administrative law judge and he was free to disregard it. See Alvarez v. Smith, 714 So.2d 652, 653 (Fla. 5th DCA 1998).
      The administrative law judge applied the clear and convincing standard during the trial phase of the administrative proceeding.

      . The administrative law judge also misapprehended the legal effect of the evidence in concluding that an examination of the campaign treasurer’s backup information would have aided the candidate in this case. The entire problem was that the campaign treasurer failed to maintain complete and accurate records of the contributions and expenditures. Many contribution checks were deposited at the bank without maintaining records of what had been deposited, and checks were written without recording them. The active period of the campaign was only five weeks long and by the treasurer’s testimony, bank statements and cancelled checks were not received in time to be of any use. The treasurer's reports reflected what was in the treasurer's (incomplete) records.
      Comparing the treasurer's reports against the treasurer’s records would be futile in a situation in which the records are incomplete.

      . Under chapter 106, a contribution includes a loan to the campaign. § 106.01 l(3)(a), Fla. Stat. (1999). The details of the loan (date, lender, amount) are supposed to be included in the treasurer's report within the schedule of contributions.

      . As previously explained, the treasurer's report for the period ending November 19, 1999, did not include any loans in the schedule of contributions attached to the report. This omission amounted to one violation of paragraph 106.19(l)(b).
      The schedule of contributions attached to the December 9 treasurer’s report included one loan of $10,000 on December 8. The December 9 schedule omitted three additional loans which were: $10,000 on November 30; $2,000 on December 8; and $60,000 on December 9. These three omissions from the December 9 schedule of contributions constitute three additional violations of paragraph 106.19(l)(b).
      Thus we affirm a total of four violations of paragraph 106.19(l)(b).

      . Effective in 2002, the Legislature has prohibited service on the Commission by anyone who is a lobbyist at the state or local government level. Ch.2002-281, § 3, Laws of Fla. (codified as § 106.24(l)(b), Fla. Stat. (2002)). However, this prohibition does not apply to anyone serving as a member of the Commission on July 1, 2002, until the expiration of-his or her current term.

      . In summary, we have affirmed the finding of seventeen violations: two violations of subsection 106.07(5) for the incorrect treasurer's reports; four violations of paragraph 106.19(l)(b) for the omitted loan amounts; five violations of subsection 106.143(1) for advertisements without disclaimers; five violations of subsection 106.132(2) for advertisements without indications of party affiliation; and one violation of paragraph 106.143(4)(a) for an advertisement without candidate approval.
      We have reversed the remaining violations.


source: Caselaw Access Project

author: WARNER, J. STONE, J.,

license: Public Domain

text:
    E.I. DU PONT DE NEMOURS AND COMPANY, Appellant, v. DESARROLLO INDUSTRIAL BIOACUATICO S.A., Appellee.
    No. 4D01-779.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.
    Rehearing Denied Nov. 18, 2003.

      Jane Kreusler-Walsh and Rebecca J. Mercier of Jane Kreusler-Walsh, P.A., West Palm Beach, and Thomas M. Sher-ouse of Shook, Hardy & Bacon, L.L.P., Miami, for appellant.
    Walter G. Campbell, Jr., Robert J. McKee, Ivan Cabrera of Krupniek, Campbell, Malone, Roselli, Buser, Slama, Hancock & McKee, and Bruce Rogow, Beverly A. Pohl and Cheryl Ziekler of Bruce S. Rogow, P.A., Fort Lauderdale, for appel-lee.
   WARNER, J.

Appellant, E.I. Du Pont De Nemours and Company, a chemical manufacturer, challenges a final judgment based upon a jury verdict finding that the appellant failed to warn of the danger of appellant’s product, Benlate, to shrimp grown by ap-pellee. Because appellee failed to plead a cause of action for failure to warn and it was not tried by implied consent, we reverse the final judgment.

Desarrollo Industrial Bioacuatico S.A. (“DIBSA”), the appellee, owns and operates a shrimp farm in Taura, Ecuador. The farm consists of massive ponds in which shrimp are bred and harvested for resale. The ponds derive water from the Guayas River estuary system. Up river from the shrimp farm are banana farms, the closest of which is approximately ten miles. Banana farming is Ecuador’s largest agricultural industry, with shrimp farming second in importance.

In 1992 shrimp began dying at a rapid rate in the shrimp farms in Ecuador. Around the same time, banana farmers were combating a devastating fungus, Black Sigatoka, that had developed due to heavy rainfalls from El Nino. Several chemical companies were working with the banana farmers to prevent the fungus. Du Pont had offered its expertise to the banana industry, recommending rotation of fungicides to hinder resistance by the fungus. The fungicides the farmers rotated included Benlate, which was produced by Du Pont, and Tilt and Calixin, produced by other chemical companies. All three chemicals were toxic to shrimp.

The shrimp farmers searched for the cause of the shrimp deaths. One scientist discovered lesions on the shrimp and named the disease Taura syndrome. Then another scientist explored the connection between the lesions and the chemicals being used by the banana farmers and concluded that the chemicals were causing the lesions. However, another expert concluded that the lesions and shrimp deaths were caused by a viral agent and challenged the validity of the science upon which the first scientists determined that the chemicals caused the shrimp lesions.

While DIBSA first filed suit against the manufacturers of Tilt and Calixin, it subsequently filed the present action against Du Pont claiming that it was responsible for the shrimp deaths. In its complaint, DIB-SA alleged that Du Pont sold its products to the Ecuadorian banana farmers and had a duty to test its product to make sure that it was safe for the environment in which it was being used and would not harm non-target organisms or businesses which would come into contact with the chemical. Specifically, the complaint alleged that Du Pont was negligent in the following respects:

a. The Defendant negligently formulated and sold Benlate in such a way that they were hazardous to shrimp.
b. The Defendant negligently failed to manufacture the product and/or supervise the manufacture of the product so as to render them safe for shrimp.
c. The Defendant negligently failed to test and analyze its chemicals to determine whether they were, in fact, safe for use in areas where shrimp would live or where shrimp would be grown commercially.
d. The Defendant negligently designed and manufactured the product which did not rapidly break down into harmless chemicals and, as such, represented significant environmental hazard, and in particular, a hazard to shrimp.
e. The Defendant negligently designed and manufactured chemicals which did not adequately bind to the soil and to the target plants such that the chemical in question freely entered the outside through the flow of water and other means such that the harmful chemicals were carried in substantial quantities to locations such as the Plaintiffs shrimp farms.
f. The Defendant failed to take proper precautions to see to it that its chemicals were in a safe and proper condition so as to be useable in the vicinity of other businesses including shrimp farms.
g. The Defendant failed to take proper precautions to ascertain the synergistic environmental dangers of combining the product in question with other agricultural pesticides which they knew or should have known would be used in conjunction with their product and would enhance the toxicity to shrimp, decreasing shrimp tolerances to these toxins and substantially enhancing the shrimp’s susceptibility to infection by disease due to their weakened condition from pesticide contamination.
h. The dangerous chemical properties of the product were known to the defendant for a substantial length of time, and yet the Defendant negligently failed to stop the sale of the product or curtail the use of the product in areas where the Defendant knew or should have known that it would cause damage to shrimp farms.

As a result of this negligence, appellees alleged substantial damages due to the die-off of shrimp. The complaint alleged a claim based on negligence only and not on any theory of strict liability. Du Pont answered, denying that its product had caused or contributed to any damages of DIBSA. As one of many affirmative defenses, it also alleged that Plaintiff and others had been made aware of the dangers of the product.

During the course of discovery and DIB-SA’s continued questioning of witnesses regarding labels and warnings issued by Du Pont regarding Benlate, Du Pont moved for summary judgment alleging that despite DIBSA’s framing of its complaint, the case was a “pure and simple failure to warn complaint” which was precluded by the Fungicide Insecticide and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136-136y, which regulates the warning labels placed upon pesticides. DIBSA filed a response, stating:

DuPont urges the court to devine [sic] a “disguised labeling claim.” DuPont asserts that “Plaintiffs are essentially arguing that Du Pont failed to warn against supposed dangers to shrimp.”
This is not an intelligible reading of the com/plaint. ... Du Pont’s attempt to rewrite plaintiffs’ claim is wholly improper in the context of a motion for summary judgment.
As Du Pont acknowledges, the Fourth Circuit’s test in Worm v. American Cyanamid Co., 5 F.3d 744, 747-48 (4th Cir.1993) for whether negligent design and testing claims are disguised labeling claims is whether the manufacturer “in seeking to avoid liability for the error, would choose to alter the product or the label.” Here, plaintiffs have categorically alleged that the Benlate itself functioned improperly and that Du Pont was negligent in its manufacture, design and testing.

(Emphasis added) (citations omitted). DIBSA also noted that it was neither a purchaser nor user of Benlate and had no control over the banana farmers or their use of the product.

At the August 2000 hearing on the motion, approximately two months before the trial, Du Pont’s counsel pointed to DIB-SA’s claims that this was not a labeling case but that in any event DIBSA was raising a warning claim. DIBSA responded that it was not a labeling claim and thus FIFRA did not apply. The court denied summary judgment.

Du Pont then filed a motion in limine to exclude evidence regarding failure to warn on the ground that DIBSA had failed to allege a claim for failure to warn in its complaint. At the hearing on the motion, held just a few days prior to the start of trial, Du Pont’s counsel noted that the allegations of failure to warn were not in the complaint, and therefore evidence of a failure to warn should not be admitted at trial. In response, DIBSA’s counsel argued, contrary to the response it filed to the motion for summary judgment, that a failure to warn claim had in fact been made in the complaint. He gleaned this cause of action from the allegations that Du Pont negligently formulated and sold the chemicals in such a way as to be hazardous to the shrimp. Counsel also argued that the allegation that Du Pont failed to take proper precautions to see that the chemical was in a safe condition to be useable in the vicinity of the shrimp farms went to the issue of warnings. The court denied the motion on the ground that the allegations of negligence “would include failure to warn for whatever warning is necessary for a known dangerous product ...”

The case went to trial, and from the beginning failure to warn became a central issue in DIBSA’s case, along with Du Pont’s failure to test its product on shrimp. Du Pont argued strenuously that its chemical did not cause or contribute to the shrimp deaths, and contended that its label was adequate. Throughout the testimony, DIBSA stressed that the Benlate label stated that it was toxic to fish but did not state that it was toxic to shrimp, shrimp being a crustacean and different from fish. Moreover, it asked several witnesses whether the label contained warnings regarding potentials for runoff. In examination of witnesses, it asked if Du Pont had warned the banana growers, the government of Ecuador, or the shrimp farmers of Benlate’s toxic effect on shrimp.

Du Pont moved for directed verdict, arguing that DIBSA had not proved its failure to warn claim, but counsel prefaced his argument to the court by reminding it that Du Pont was not waiving its previous argument that the failure to warn theory had not been pled. The court denied the motion. In closing argument, DIBSA’s counsel spent considerable time discussing Du Pont’s failure to warn the banana farmers, the shrimp farmers or the government about Benlate’s toxic potential. He talked about the product label and its failure to warn that the product was toxic to shrimp or sufficiently warn of the dangers of runoff.

The jury was instructed to determine whether Du Pont “was negligent in the failure to warn, test and distribute Ben-late.” The verdict form asked three questions on liability: whether Du Pont was negligent “in the failure to test Benlate;” “in the failure to warn of Benlate;” and “in the distribution of Benlate.” During deliberations, the jury came back with a question indicating that they had agreed that Du Pont was negligent for failure to warn and not negligent in distribution of Ben-late, but they could not agree on the failure to test. After the court gave the jury an additional instruction, counsel for DIB-SA moved to conform the evidence to the pleadings on the failure to warn. Du Pont’s counsel vehemently objected because the issue was not pled before. He reminded the court that they had consistently contended that it was improper for the jury to decide the issue when it was not in the complaint. The court denied the motion to conform the pleadings.

The jury returned its verdict, finding Du Pont negligent only for a failure to warn of Benlate. It awarded $10,063,165 plus significant prejudgment interest. Among other post-trial motions made, Du Pont moved for judgment notwithstanding the verdict contending that Du Pont was entitled to a judgment in its favor because the jury found for DIBSA only on an unpled claim. The trial court denied the motion, prompting this appeal.

This case is controlled by Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988), in which the supreme court held that where a claim is not pled with sufficient particularity for the opposing party to prepare a defense, the plaintiff is precluded from recovery on the unpled claim and a directed verdict is properly entered. In Arky, Freed, a law firm sued a client for fees, and the client counterclaimed on a claim of legal malpractice alleging general negligence. Twelve days before trial, in answers to interrogatories, the client revealed a claim of specific negligence that was not included within the counterclaim. The law firm objected, but the client claimed that the claim was encompassed within the charge of general negligence within the complaint. The law firm’s motion for a continuance or, in the alternative, to exclude evidence of the claim, was denied on the basis that the specific negligence claim was included in the general negligence allegations. The jury found for the client on the unpled charge and the law firm appealed the final judgment. The third district held that the trial court erred ‘in determining that the general allegations of negligence stated a cause of action for the specific malpractice alleged at trial, and thus the client had recovered on an unpled theory. Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 527 So.2d 211, 213 (Fla. 3d DCA 1987). It held, however, the law firm was not entitled to a judgment in its favor but to a new trial.

On review, the supreme court held that the law firm was entitled to a directed verdict in its favor, stating, “Bowmar did not prove the allegation of the counterclaim, but rather proved a claim not pled with sufficient particularity for Arky, Freed to prepare a defense. Under our law, Bowmar is thus precluded from recovery on this essentially unpled claim.” Arky, Freed, 537 So.2d at 563. The court stated that by objecting to the introduction of evidence on the unpled claim prior to trial through a motion in limine, the law firm had called the court’s attention to the fact that the unpled claim was not being tried by consent. See id. Noting that the client took a strategic risk, the court said:

In this case, Bowmar was on notice Arky, Freed considered Bowmar’s evidence beyond the scope of the pleadings. Rather than reevaluating this position, Bowmar opposed the motion for continuance and chose to proceed to trial under the risk that Arky, Freed might have been correct [that the claim was not properly pled]. This “reliance” is no different than that of any lawyer who, at trial, chooses to present evidence over opposing counsel’s overruled objection. By “relying” on the trial court’s ruling, counsel always proceeds at the clear risk of reversal if the trial court was wrong.
[W]e conclude that litigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared. Our growing, complex society and diminishing resources mandate the requirement that litigants present all claims to the extent possible, at one time, and one time only.

Id. Similarly, in Goldschmidt v. Holman, 571 So.2d 422, 424 (Fla.1990), the court noted that where a claim was not pled, “the jury could consider that claim only if evidence supporting it had been admitted without objection and an appropriate motion to amend the pleadings to conform to the evidence had been made pursuant to Florida Rule of Civil Procedure 1.19003).” (Emphasis added) (citing Arky, Freed, 537 So.2d 561).

In this case, failure to warn as a cause of action in negligence was not pled. The allegations made no mention of it, and none of the allegations suggest a failure to warn was the basis of the cause of action. When Du Pont suggested that the claim was a “disguised” failure to warn claim, DIBSA’s response emphatically denied that it was making a failure to warn claim. Yet less than five days prior to trial, when Du Pont sought to exclude evidence on failure to warn because it was not pled, DIBSA’s counsel argued for the first time that the pleadings encompassed a failure to warn claim. The trial court erroneously determined that, because the product was a dangerous one, allegations of negligence would include a failure to warn, even though one was not alleged. Thus, Du Pont was forced to defend a claim which DIBSA had affirmatively rejected as being part of its causes of action only two months before trial. Moreover, the case DIBSA presented on failure to warn was exactly what DIBSA said it was not alleging, namely that the label was insufficient to warn of the dangers, a claim which would invite FIFRA preemption.

In short, the failure to warn claim was not pled, and it was strenuously objected to prior to trial. As in Arky, Freed, counsel’s motion in limine to exclude evidence of the claim was denied. Thus, DIBSA’s counsel knew that the evidence came in over objection. In addition, the motion to conform the pleadings to the evidence was made too late in the proceedings. See Schopler v. Smilovits, 689 So.2d 1189, 1190 (Fla. 4th DCA 1997) (finding claimant’s motion to conform evidence to the pleadings was untimely when made after the close of all the evidence and after arguments on motions to dismiss and for directed verdict). DIBSA’s counsel took a calculated risk that the trial court ruled correctly in determining that the complaint properly pled a claim for failure to warn. The trial court erred, and reversal is required.

DIBSA counters by claiming that the issue is one of prejudice, and Du Point was not prejudiced because counsel knew that failure to warn would be raised by DIBSA early on. This argument is not well taken. Even though Du Pont alleged in its affirmative defenses that it had made the necessary warnings of Benlate’s danger, the fact that it may have used warnings to defend a negligent testing claim or distribution claim does not put it on notice that it must defend against a failure to warn claim. Cf. Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So.2d 968, 970 (Fla. 3d DCA 2002) (holding that State Farm was required to plead negligence attributable to DOT as an affirmative defense although plaintiff was aware through the testimony of an expert of the possibility of such a claim). Moreover, how can it be said that Du Pont should have prepared for trial on a cause of action that DIBSA expressly rejected only two months prior to trial? The rule of Arky, Freed requires that claims submitted to the jury either be pleaded or tried by implied consent with the pleadings conformed to the evidence. Neither occurred in this case.

Reversed.

GROSS, J., concurs.

STONE, J., concurs specially with opinion.

STONE, J.,

concurring specially.

I write separately to emphasize that by this opinion, we essentially recognize that the mandate of Arky, Freed gives no discretion to the trial court to consider prejudice when a party fails to timely seek leave to amend (or meet the requirements to conform the pleadings to the proof). Were it otherwise, I would affirm as, here, there is record support for Appellee’s argument that Appellant was not prejudiced.

      . At oral argument, DIBSA’s counsel candidly and appropriately conceded that the complaint did not allege failure to warn as a claim.


author: SHAHOOD, J.

text:
    Ann FIERRO, f/k/a Ann Theis, Appellant, v. Diane TEMPLETON, The Omega Consulting Group, Inc., Omegacal Consulting, Inc., and Omega Data Solutions, Inc., Appellees.
    No. 4D02-4183.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Rehearing Denied Nov. 17, 2003.

      Scott M. Behren and Shawn L. Michael-son of Waldman, Feluren & Trigoboff, P.A., Weston, for appellant.
    Mark A. Dienstag of Brenner & Dien-stag, P.A., Miami, for appellee Diane Tem-pleton.
   SHAHOOD, J.

Appellee, Diane Templeton, sued her business partner, appellant, Ann Fierro f/k/a Ann Theis, asserting fraud and misrepresentation, breach of fiduciary duty, breach of contract, mismanagement, and misappropriation of funds. Also named as defendants in the lawsuit were The Omega Consulting Group, Inc. (Omega), Omegacal Consulting, Inc. (Omegacal), and Omega Data Solutions, Inc. (Omega Data), the parties’ three corporations, and A. Theis, Inc., Fierro’s company. In the complaint, Templeton asserted, among other things, that Fierro mismanaged the businesses and misappropriated corporate funds for her personal use and that of her family. Templeton asserted that Fierro violated their agreement that each would be an equal owner/manager of Omega and its related corporations.

Concurrent with the filing of her complaint, Templeton also moved to have the corporations dissolved and to have a receiver appointed. Fierro responded with a notice of election to purchase Templeton’s shares of stock for fair value in lieu of dissolution. Thus, the matter proceeded to a hearing before a receiver who heard testimony of valuation experts and concluded that the value of the businesses, all considered as one entity, was between $70,000 and $2,000,000 and that, despite Fierro’s position to the contrary, Temple-ton was still a fifty percent shareholder.

Subsequently, at a non-jury trial, the issues to be determined were the value of the corporations and Templeton’s interest in them. Templeton’s expert reviewed Omega’s income statements, statements of gross income, and operating expenses, and concluded that Fierro’s fifty percent share was $1,789,000. In the expert’s estimation, the value of Omegacal and Omega Data was zero. It was the expert’s opinion that the three companies should be treated as three separate entities.

Fierro’s expert, on the other hand, reviewed the corporation’s tax returns to determine gross profit, operating expenses and net income/loss. It was her opinion that the fair value of the entities combined was $200,000 and that Templeton’s share was $70,000, $100,000 less a discount to compensate for the decreased marketability of being a partner in a closely held corporation.

The trial court entered a final judgment finding that Fierro had previously made an irrevocable election to purchase Temple-ton’s shares, pursuant to section 607.1436, Florida Statutes (2001). The court found that Templeton owned fifty percent of the stock of Omega and Omegacal and thirty percent of the stock of Omega Data. The court assessed a zero dollar value to Ome-gacal and Omega Data and a value of $2,568,108 for Omega. The court determined that the fair market value of Tem-pleton’s shares as of May 3, 2000 was $1,281,554. As a result, the court entered judgment in favor of Templeton and against Fierro, but denied Templeton’s request for fees, finding that although Fierro breached her fiduciary duty to Templeton, such breach did not rise to the level of the illegality required to award fees pursuant to sections 607.1430 and 607.1436(5), Florida Statutes. The court did not indicate the method it used in arriving at the value of the company.

After the entry of the final judgment, Fierro filed a notice of intention to dissolve the corporation pursuant to section 607.1436(7). She asserted that, upon filing the articles of dissolution, the corporation would be dissolved and the judgment against her would no longer be of any force or effect. At the same time, Fierro filed a motion for reconsideration and/or clarification of the final judgment, stating that the court’s valuation of Omega was not based on the opinion of either party’s valuation expert and was not supported by findings of fact or computations showing the manner in which the trial court arrived at the valuation. Templeton objected to the election to dissolve the corporation, arguing that it was made in bad faith. The court denied Fierro’s motion for reconsideration and sustained Templeton’s objection to the election to dissolve the corporation.

Fierro appeals the final judgment as well as the trial court’s ruling on her post-trial motions. We hold that the trial court erred in sustaining Templeton’s objection to Fierro’s election to dissolve the corporation, and reverse and remand for further proceedings consistent with this opinion.

Section 607.1436 directs the procedure to be followed in these proceedings. The statute states that, after a party has filed an election to purchase and the court has entered a final judgment determining the fair value of the petitioner’s shares and ordering the purchase of those shares, the corporation may, within a prescribed period of time, file a notice of its intention to adopt articles of dissolution. See § 607.1436(7), Fla. Stat. (2001). “Upon filing of such articles of dissolution, the corporation shall be dissolved ... and the order ... [directing purchase of the shares] shall no longer be of any force or effect....” Id.

Unlike the language in subsection one of section 607.1436, which gives the court the discretion to set aside or modify an election to purchase for equitable reasons, subsection seven does not grant the trial court similar discretion after an order determining fair value and directing purchase of the shares has been entered. On the contrary, the language in subsection seven leaves no question that the filing of an intention to adopt articles of dissolution at that time automatically nullifies the order and triggers the dissolution process without further order of the court. See, e.g., § 607.1436(7), Fla. Stat. (2001). Thus, it was error in this case for the trial court to sustain Templeton’s objection to the notice of intent to adopt articles of dissolution.

This decision renders appellant’s remaining points on appeal moot. We accordingly reverse the final judgment entered in this case, as well as the post-trial order sustaining Templeton’s objection to Fier-ro’s notice of intention to dissolve, and remand for further proceedings consistent with section 607.1436(7), Florida Statutes.

REVERSED AND REMANDED FOR FURTHER PROCEEDINGS.

POLEN and STEVENSON, JJ., concur.

      . It was alleged that, unbeknownst to Temple-ton, Fierro formed Omega Data with Temple-ton owning only thirty percent of the shares and Fierro and her husband owning the remaining 70%.

      . See § 607.1436, Fla. Stat. (1999).


author: PER CURIAM.

text:
    Gabriel FERNANDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3235.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Rehearing Denied Nov. 17, 2003.
    Gabriel Fernandez, Punta Gorda, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Hayes v. State, 855 So.2d 144, 2003 WL 21920878 (Fla. 4th DCA Aug.13, 2003)(en banc).

POLEN, STEVENSON and SHAHOOD, JJ., concur.


text:
    ALPHA 2001, INC., a Florida Corporation, Marvin E. Marshall, Dr. Ray McMurtry, Lee Stevens, John Hendrix, Dan Pitzen, Bob Hall, and Dan Vinovich, Appellants, v. Merrill A. BOOKSTEIN, Appellee.
    No. 4D03-2159.
    District Court of Appeal of Florida, Fourth District.
    Sept. 24, 2003.
    Rehearing Denied Nov. 18, 2003.
    Guy B. Bailey, Jr., John E. Hughes, III, and George L. Zinkler, III of Bailey & Dawes, L.C., Miami, for appellants.
    Daniel S. Rosenbaum and Laurie Still-well Cohen of Becker & Poliakoff, P.A., West Palm Beach, for appellee.
   PER CURIAM.

The court has reviewed appellant’s brief and finds that no preliminary basis for reversal has been demonstrated. The appeal is therefore affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

FARMER, C.J., GUNTHER and GROSS, JJ., concur.


text:
    Patricia SPEZZANO, as personal representative of the estate of John Spezzano, Appellant, v. Chad YOXALL and Robert Yoxall, Appellees.
    No. 4D02-2837.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Rehearing Denied Nov. 14, 2003.
    Patricia Spezzano, Southwest Ranches, pro se.
    Angela C. Flowers of Kubicki Draper, Miami, for appellees.
   PER CURIAM.

Appellant, Patricia Spezzano, as personal representative of the estate of her son, John Spezzano, filed a wrongful death action against appellees, Chad and Robert Yoxall. The trial court entered final summary judgment in favor of appellees and appellant appeals. We affirm.

In 1981 John was diagnosed and treated for a brainstem tumor. He did well until 1993 when his symptoms increased. In January 1999 John was in an automobile accident with appellees in which he hit his head on the windshield. Thereafter, John’s tumor worsened and he eventually died.

In appellant’s suit for wrongful death, it was alleged that John’s death was the result of the automobile accident. Appel-lees filed their Motion for Summary Judgment and presented three doctors’ depositions and two other doctors’ affidavits in which all the doctors stated that John’s death was not caused or the tumor aggravated by the head trauma which occurred during the accident.

Appellant’s response to appellees’ motion did not include any doctor’s opinion contrary to the opinions of appellees’ experts. “A party moving for summary judgment must conclusively demonstrate the absence of any genuine issue of material fact and the moving party’s entitlement to judgment as a matter of law.” Gulfstream, Park Racing Ass’n v. Gold Spur Stable, Inc., 820 So.2d 957, 960 (Fla. 4th DCA 2002) (citation omitted). We find that the trial court did not err in granting appellees’ motion for summary judgment because there was no genuine issue of material fact as to the cause of John’s death. We, therefore, affirm the judgment of the trial court.

AFFIRMED.

STONE, POLEN and HAZOURI, JJ„ concur.


text:
    Marsha REED, Appellant, v. William Mark REED, Appellee.
    No. 4D01-4104.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Rehearing Denied Nov. 17, 2003.
    Sharon C. Degnan and Diane H. Tutt of Diane H. Tutt, P.A., Plantation, for appellant.
    Judith A. Homko of Brawer, Klein & Mandell, LLP, Sunrise, for appellee.
   PER CURIAM.

In this dissolution action, we reverse the final judgment awarding former wife $4,000 in attorney’s fees for the period after January 11, 2001, because the judgment lacks the requisite findings under Florida Patient’s Compensation Fund v. Rowe, 472 So.2d 1145 (Fla.1985)(requiring the trial court to make express findings regarding the number of hours reasonably expended and a reasonable hourly rate for the type of litigation involved). On remand, a new evidentiary hearing will be required since the trial judge that entered the attorney’s fee judgment has recused himself, precluding the usual procedure of allowing the trial court to supplement the order with the required findings. See Guardianship of Halpert v. Rosenbloom, 698 So.2d 938 (Fla. 4th DCA 1997).

The former wife also argues that the trial court failed to consider her request for an enhancement multiplier on her attorney’s fee award because of former husband’s alleged “dilatory and bad faith practices.” The trial court failed to rule on this issue and former wife did not seek a ruling on motion for rehearing. Without a ruling, it is unclear whether the trial court granted or denied former wife’s request. Cf. Matisko v. Matisko, 834 So.2d 405 (Fla. 5th DCA 2003)(finding that party’s failure to obtain a ruling on his motion for sanctions precluded consideration on appeal of whether the motion should have been granted). On remand, the trial court shall make a ruling on former wife’s request for an enhancement multiplier.

We have considered the other issues raises by appellant, but find no error.

AFFIRMED in part, REVERSED in part, and REMANDED.

STEVENSON, GROSS and MAY, JJ„ concur.


text:
    Ramie ECKFORD, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2294.
    District Court of Appeal of Florida, Fourth District.
    Oct. 1, 2003.
    Rehearing Denied Nov. 14, 2003.
    Ramie Eckford, Madison, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Trotter v. State, 825 So.2d 362 (Fla.2002).

STONE, GROSS and MAY, JJ„ concur.


text:
    Cleveland BALDWIN, Appellant, v. STATE of Florida, Appellee. Abraham Young, Jr., Appellant, v. State of Florida, Appellee.
    Nos. 1D01-4763, 1D02-2127, 1D02-2162.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant, Cleveland Baldwin, and Appellant, pro se.
    Nancy A. Daniels, Public Defender, and Ed Harvey, Assistant Public Defender, Tallahassee, for Appellant, Abraham Young, Jr.
    Charlie Crist, Attorney General; Karen M. Holland and Philip W. Edwards, Assistant Attorneys General, Tallahassee, for Appellee.
   ON ORDERS TO SHOW CAUSE

PER CURIAM.

We have consolidated these three An-ders cases for the purpose of issuing an opinion addressing the state’s answer briefs, which contain irrelevant and immaterial argument. Although the state ultimately withdrew all of its briefs in response to our orders to show cause why the briefs should not be dismissed, we write, as we did in Ullah v. State, 679 So.2d 1242 (Fla. 1st DCA 1996), to provide guidance in future Anders appeals.

In each of these appeals, the appellant’s counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The Florida Supreme Court summarized the procedure required by Anders as follows:

In Douglas v. California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811 (1963), the United States Supreme Court determined that every criminal defendant is entitled to representation of counsel under the sixth and fourteenth amendments of the United States Constitution in the first appeal as of right. See Penson v. Ohio, 488 U.S. 75, 79, 109 S.Ct. 346, 349, 102 L.Ed.2d 300 (1988). This right is premised on the general notion that there is no assurance they will get a fair result absent the vigorous representation of a trained legal advocate. Id. at 84, 109 S.Ct. at [351]. Essentially, An-ders operates as a narrow exception to that right of counsel by enabling courts to entertain an appeal as of right without counsel when counsel believes the appeal is wholly without merit. Id. at 83, 109 S.Ct. at 351. “However, once a court determines that the trial record supports arguable claims, there is no basis for the exception and, as provided in Douglas, the criminal appellant is entitled to representation.” Id. at 84, 109 S.Ct. at 351.
The procedure established in Anders and its progeny requires an indigent’s appellate counsel to “master the trial record, thoroughly research the law, and exercise judgment in identifying the arguments that may be advanced on appeal .... Only after such an evaluation has led counsel to the conclusion that the appeal is ‘wholly frivolous’ is counsel justified in making a motion to withdraw.” McCoy v. Court of Appeals, 486 U.S. 429, 438-39, 108 S.Ct. 1895, 1902-1903, 100 L.Ed.2d 440 (1988) (footnote omitted). That motion, however, must be accompanied by an appellate brief referring to every arguable legal point in the record that might support an appeal. Id. at 439, 108 S.Ct. at 1902; Penson, 488 U.S. at 80, 109 S.Ct. at 349; Anders, 386 U.S. at 744, 87 S.Ct. at 1400; see also In re Order of the First Dist. Court of Appeal Regarding Brief Filed in Forrester v. State, 556 So.2d 1114 (Fla.1990).
Upon counsel’s submission of the motion to withdraw accompanied by an An-ders brief, the indigent must be given the opportunity to file a pro se brief. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400 (“A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses”). The appellate court then assumes the responsibility of conducting a full and independent review of the record to discover any arguable issues apparent on the face of the record. See Anders, 386 U.S. at 744, 87 S.Ct. at 1400; State v. Causey, 503 So.2d 321, 322 (Fla.1987). If the appellate court finds that the record supports any arguable claims, the court must afford the indigent the right to appointed counsel, Penson, 488 U.S. at 83, 109 S.Ct. at 351; McCoy, 486 U.S. at 444, 108 S.Ct. at 1904; Anders, 386 U.S. at 744, 87 S.Ct. at 1400, and it must give the state an opportunity to file a brief on the arguable claims. Causey, 503 So.2d at 322. However, the appellate court is to conduct its full and independent review even if the indigent elects not to file a pro se brief. Id. Only if the appellate court finds no arguable issue for appeal may the court grant counsel’s motion to withdraw and proceed to consider the appeal on its merits without the assistance of defense counsel. Penson, 488 U.S. at 80, 109 S.Ct. at 349.

In re Anders Briefs, 581 So.2d 149, 150-51 (Fla.1991) (emphasis added).

The court further stated:

[I]ndigents in their first appeal as of right should not lose their Anders rights simply because counsel are able to identify some relatively minor sentencing issues in “no merit” briefs.... Therefore, appellate courts are to follow the Anders procedure fully even when costs or other minor sentencing errors are raised in “no merit” briefs[.]

Id. at 152.

Despite the above clearly described procedures the Florida Supreme Court outlined a dozen years ago, the state has continually filed briefs in Anders appeals that do not address arguable claims. To the contrary, the state’s answer briefs in cases in which an appellant has filed a pro se brief, as in Baldwin, inform us that our standard of review is to determine by review of the record whether counsel was ineffective in overlooking arguably reversible error and in certifying that the appeal was wholly frivolous. The state next asserts that appellant has the duty under state law to bring forth a record on appeal and to submit a brief that makes error clearly appear. Appellant’s failure to show error, it continues, constitutes a waiver of all appealable issues under state law. For purposes of subsequent postconviction proceedings, “the state specifically notes and brings to appellant’s attention that the failure to raise any arguably reversible error on direct appeal proeedurally bars raising in postconviction proceedings pursuant to Florida Rule of Criminal Procedure 3.850 any issues which could have, should have, or were raised on direct appeal.” Such failure also waives such issues for federal habeas corpus relief. Additionally, the state contends that appellant, by filing a pro se brief, has asserted a de facto claim of ineffective assistance of appellate counsel, which this court should address. Af-firmance in this case constitutes a denial of appellant’s pro se claim of ineffective assistance of appellate counsel and therefore bars any future claim based on failure to raise arguably reversible error.

The state concludes that it “explicitly makes the above points for the benefit of the appellant because, should there be any subsequent postconviction claims in either state or federal court, the state will rely on its argument here that appellant has personally waived his right to raise additional issues on direct appeal not raised in the pro se brief and, concomitantly, has waived his right to make claims of ineffective assistance of appellate counsel based on grounds not raised in the pro se brief.”

Similar arguments are set forth in answer briefs filed in cases in which the appellant has elected not to file a pro se brief, such as the Young cases. The state’s answer briefs rarely, if ever, respond to any of the issues raised by appellant’s counsel or appellant. None of the authorities the state cited in its briefs authorizes it to file such a brief under the circumstances presented. In fact, In re Anders Briefs explicitly provides that the state need only be given an opportunity to respond if this court discovers an issue of apparent merit.

We conclude that the state’s arguments, as outlined above, are irrelevant and immaterial to any arguable issue on appeal that this court could decide. Compare Ullah v. State, 679 So.2d 1242 (Fla. 1st DCA 1996). In fact, they appear to be made for the sole purpose of making veiled threats to appellants that their failure to argue issues of merit on direct appeal may bar them from later asserting collaterally issues that should initially have been brought to the attention of the court.

Because the state has withdrawn its answer briefs in these three cases, it is unnecessary for this court to strike them. In the future, any brief filed by the state containing irrelevant material not responsive to the issues raised by appellant’s counsel or appellant will be struck without prior order of this court.

The orders to show cause are DISCHARGED.

ERVIN, BARFIELD and ALLEN, JJ., CONCUR.

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


text:
    Robert L. WHITE, II, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D03-3256.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Robert Lee White, II, pro se, appellant. No appearance for appellee.
   PER CURIAM.

DISMISSED. See Coca Cola Foods v. Cordero, 589 So.2d 961 (Fla. 1st DCA 1991).

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


author: WOLF, C.J.

text:
    Petre SUCIU, Appellant, v. Gabriella Maria SUCIU, Appellee.
    No. 1D02-3815.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Nancy N. Nowlis, Jacksonville, for appellant.
    Lester Makofka, Jacksonville, for appel-lee.
   WOLF, C.J.

The former husband challenges the award of attorney’s fees and costs to the former wife. We affirm but direct that an obvious mathematical error be corrected. The trial court awarded the former wife $20,000 in attorney’s fees and costs and that it be paid at the rate of $2,000 per month for the next 24 months. The actual rate should be $833.33 for the next 24 months. Upon correction of this error we find no abuse of discretion in the trial court’s determination as to fees and costs.

BROWNING and HAWKES, JJ., concur.


text:
    Nora Christine SWAILS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0024.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Nora Christine Swails, pro se.
    Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Nora Christine Swails appeals the denial of her motion made pursuant to Florida Rule of Criminal Procedure 3.850 in which she raises numerous claims of ineffective assistance of counsel relating to her plea of nolo contendere to first degree murder. Although we affirm the denial of seven of those claims, we find that the third claim raises a facially sufficient allegation of ineffective assistance of counsel for failure to investigate defenses relating to appellant’s mental state. Neither the reasons stated by the trial court nor the portions of the record attached conclusively refute this claim. Therefore, without expressing any opinion as to the merits of the claim, we reverse and remand for further proceedings consistent with this opinion. See Urquhart v. State, 676 So.2d 64 (Fla. 1st DCA 1996) (remanding for further proceedings where appellant alleged his counsel failed to investigate appellant’s psychiatric condition and his history of mental disorders and plea transcript did not refute this allegation of ineffective counsel); Young v. State, 661 So.2d 406 (Fla. 1st DCA 1995) (remanding for an evidentiary hearing where plea transcript did not refute appellant’s allegation that he had told defense counsel he was on drugs during the commission of the crime, and his counsel failed to investigate intoxication defense).

BROWNING and HAWKES, JJ., concur.


text:
    Michael B. GEISON, Appellant, v. UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Appellee.
    No. 1D03-2460.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2003.
    Appellant, pro se.
    Carl B. Schwait and Elizabeth M. Collins, Gainesville, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s sua sponte order of August 7, 2003, the Court has determined that the order on appeal is not final. See Carlton v. Wal-Mart Stores, Inc., 621 So.2d 451 (Fla. 1st DCA 1993)(holding that an order dismissing a complaint without prejudice is not considered final unless it is clear that the dismissal is intended to be without prejudice to initiate another separate action). Accordingly, the appeal is hereby dismissed for lack of jurisdiction. The appellee’s motion to dismiss, filed on August 1, 2003, is denied as moot.

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


text:
    Jeffrey J. LINGLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3565.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Rehearing Denied Nov. 21, 2003.
    Jeffrey J. Lingle, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See State v. Vixamar, 687 So.2d 300 (Fla. 4th DCA 1997).

GROSS, TAYLOR and MAY, JJ., concur.


text:
    Inestin PETIT-HOMME, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-727.
    District Court of Appeal of Florida, Fourth District.
    Oct. 8, 2003.
    Rehearing Denied Nov. 18, 2003.
    Inestin Petit-Homme, Bristol, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The instant appeal is hereby dismissed for lack of jurisdiction. The motion for rehearing was not timely served and, thus, even if authorized, did not toll the time for the taking of an appeal. See, e.g., Grooms v. Moore, 766 So.2d 459 (Fla. 1st DCA 2000).

DISMISSED.

POLEN, KLEIN and STEVENSON, JJ., concur.


author: PER CURIAM. KLEIN, J.,

text:
    Marion COLLIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3196.
    District Court of Appeal of Florida, Fourth District.
    Oct. 15, 2003.

      Carey Haughwout, Public Defender, and Ian Seldin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Marion Collier was committed to the Department of Children and Families under the Jimmy Ryce Act. See §§ 394.910-394.931, Fla. Stat. (1999). He appeals this commitment on four grounds, but we only need address the Frye issue. See Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

Collier pled guilty to a rape in Virginia in 1981. Subsequent to his release from prison, Collier moved to Florida and was convicted and imprisoned for cocaine possession. As his release from prison was impending in 2000, the State filed a petition to declare Collier a “sexually violent predator.” A trial was held to determine whether Collier met the prerequisites necessary to classify him as a “sexually violent predator” and commit him for treatment.

As part of the proceedings, Collier requested, and was granted, a Frye hearing to address the admissibility of the SVR-20 (Sexual Violence Risk-20) assessment tool employed by testifying expert witnesses to evaluate his mental state. Dr. Peter Bur-sten, a psychologist, testified at the hearing that he used SVR-20 when evaluating Collier but could have evaluated him without using the tool. He additionally admitted that SVR-20 is considered an experimental method of recidivism assessment to a degree, and that some in the psychological science field question its use. As a result, Bursten could not state that SVR-20 had gained general acceptance in the relevant scientific community. Based partly on his use of SVR-20, Bursten indicated that he found Collier was a high-risk to sexually re-offend. The trial court admitted the SVR-20 and related testimony for trial, and at the jury trial, Collier renewed his Frye objection when Bursten and fellow psychologist, Dr. Gregory De-Clue, testified regarding the SVR-20.

The standard of review applicable to determinations of Frye admissibility is de novo. Arnold v. State, 807 So.2d 136, 141 (Fla. 4th DCA 2002) (citing Brim v. State, 695 So.2d 268 (Fla.1997)). De novo review by this court entails analyzing the record and prior judicial opinions, for example, “to decide whether the scientific principles and procedures relied upon to create such evidence are generally accepted by a relevant scientific community both at the time of the trial and today.” Brim v. State, 779 So.2d 427, 428 (Fla. 2d DCA 2000) (citing Hadden v. State, 690 So.2d 573, 578 (Fla.1997)).

In addition, the burden of proving the general acceptance of a particular technique and its application to the case at hand lies with the proponent of the evidence and is a preponderance of the evidence. Ramirez v. State, 651 So.2d 1164, 1168 (Fla.1995). Case precedent establishes that in meeting this burden, the party offering the evidence may not simply rely on the statements of the expert witness who testifies regarding the technique, but must also present cases and other independent evidence demonstrating the scientific acceptability of the technique. See Hadden, 690 So.2d at 578; Flanagan v. State, 625 So.2d 827, 828 (Fla.1993). The testifying expert’s pure opinion testimony is not subject to the Frye test, but if that opinion is in discernible part based on a technique that is not Frye admissible, the testimony is also inadmissible. See Hadden, 690 So.2d at 579-581.

In the case at bar, the State offered SVR-20 as a means to establish Collier’s likelihood to re-offend. Therefore, the burden to demonstrate the general scientific acceptability of SVR-20 rests with the State. The State failed to meet this burden, because the only evidence proffered at the Frye hearing was the testimony of Dr. Bursten, without additional support from case law or other sources to demonstrate the acceptability of SVR-20. Additionally, even if an expert’s testimony alone were sufficient to establish Frye admissibility, Bursten’s testimony still would not have met the State’s burden because he admitted that the SVR-20 remained in a somewhat experimental phase and that some in the psychological science community questioned its use. Clearly, the State failed to establish SVR-20’s general acceptance in the relevant scientific community by a preponderance of the evidence.

Furthermore, Bursten and De-Clue’s opinion testimony regarding Collier’s mental state is also not admissible. This is because both psychologists admitted employing the SVR-20 to reach a diagnosis and the SVR-20 is not Frye admissible. Thus, the trial court erred by admitting the SVR-20 evaluation as well as the experts’ testimony because the experts relied on the SVR-20 results.

The State argues that we must consider whether the error, in this case the admission of SVR-20 and related testimony, was harmless. See Hadden, 690 So.2d at 581. Harmless error analysis requires a consideration of whether the evidence erroneously admitted could have influenced the jury’s decision. See Goodwin v. State, 751 So.2d 537, 542 (Fla.1999). In the case at bar, the only testimony to the effect that Collier would likely re-offend was that of Bursten and DeClue, and as a result, the jury did not hear any expert testimony establishing Collier’s mental state that was untouched by SVR-20. Therefore, it cannot be said with any assurance that the error in admitting the SVR-20-based testimony in the case at bar did not influence the jury. Therefore, we conclude that the error is not harmless. As a result, we reverse Collier’s classification and commitment as a “sexually violent predator” under the Jimmy Ryce Act.

Additionally, Collier raised the issue of whether the trial court erred by failing to give a jury instruction as to whether Collier had “serious difficulty controlling his behavior.” Although this question is mooted by our decision regarding the SVR-20, and not reached as a consequence, it is fair to note that this question is one which this Court has recently certified to be of great public importance. See Gray v. State, 854 So.2d 287 (Fla. 4th DCA 2003).

REVERSED AND REMANDED for new trial.

GUNTHER and GROSS, JJ, concur.

KLEIN, J., concurs specially with opinion.

KLEIN, J.,

concurring specially.

I agree with the majority opinion. As to the failure to give the “serious difficulty controlling his behavior” jury instruction, addressed in the last paragraph, I would suggest it be given on retrial. Our supreme court in Westerheide v. State, 831 So.2d 93 (Fla.2002), concluded that the instruction given, although it did not use the words “serious difficulty,” conveys this meaning. Id. at 109. There is no downside to the giving of the instruction, and the upside is that it could obviate the need for a new trial if the United States Supreme Court, which adopted the “serious difficulty in controlling behavior” standard of proof in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), ultimately requires such an instruction, or the split decision in Westerheide is overruled by the Florida Supreme Court.


text:
    Reginald SPIVEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3015.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    Reginald Spivey, Jasper, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Jones v. State, 845 So.2d 55 (Fla.2003); Cooper v. State, 856 So.2d 969 (Fla.2003); and State v. O’Rourke, 696 So.2d 387 (Fla. 5th DCA 1997), rev. denied, 707 So.2d 1126 (Fla.1998).

PETERSON, GRIFFIN and MONACO, JJ., concur.


text:
    Kirby L. CASSELMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2899.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    Kirby L. Casselman, St. Cloud, Pro Se.
    No appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Reaves v. State, 826 So.2d 932 (Fla.2002); Kennedy v. State, 547 So.2d 912 (Fla.1989).

PLEUS, ORFINGER and MONACO, JJ., concur.


text:
    J. H., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1103.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    James B. Gibson, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

PETERSON, ORFINGER and MONACO, JJ., concur.


text:
    Joseph NEAL, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-930.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SAWAYA, C.J., SHARP, W., and PETERSON, JJ., concur.


text:
    Todd Jamal DEMPSEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-905.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PETERSON and GRIFFIN, JJ., concur.


text:
    Nelson C. CARILLO, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-835.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Sewall v. State, 783 So.2d 1171 (Fla. 5th DCA 2001); Brewer v. State, 413 So.2d 1217 (Fla. 5th DCA 1982), rev. denied, 426 So.2d 25 (Fla.1983).

PETERSON, THOMPSON and MONACO, JJ., concur.


author: FARMER, C.J.

text:
    Freddie Leroy KELLY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3073.
    District Court of Appeal of Florida, Fourth District.
    Oct. 22, 2003.
    Brian H. Mallonee, Fort Pierce, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Melynda Melear, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, C.J.

Defendant, who was caught after a chase near the scene of a burglary of a business, later made incriminating statements to an interrogating officer at the police station. Defendant pleaded not guilty and went to trial. From his opening statement, his defense was essentially that he was an innocent man without a place to stay who was caught in the circumstances of being at the wrong place at the wrong time.

At trial, the state adduced his station-house statements through the testimony of the interrogating officer and on cross-examination of the officer defendant elicited additional statements he made to the officer. As part of its case in chief, the state then offered evidence of prior convictions involving dishonesty. The state relied on section 90.806(1), saying that the convictions impeached defendant’s credibility as a declarant and addressed the self-serving nature of part of his declarations. We agree with the state that it was proper to admit the convictions under section 90.806.

Section 90.806(1) provides:

“When a hearsay statement has been admitted in evidence, credibility of the declarant may be attacked and, if attacked, may be supported by any evidence that would be admissible for those purposes if the declarant had testified as a witness.”

§ 90.806(1), Fla. Stat. (2003). We previously confronted similar impeachment of a defendant’s pretrial statements under section 90.806 in Llanos v. State, 770 So.2d 725 (Fla. 4th DCA 2000). In affirming the admission of impeachment evidence showing that the declarant-defendant was on probation from a prior conviction when he made the statements, we said:

“While the fact that a defendant is on probation is not usually admissible for impeachment, the testimony elicited by defense counsel on cross-examination suggested that appellant did not want the victim to notify the police because he was remorseful, he loved her, and he wanted her to resume their relationship. An equally plausible reason that would cast doubt on appellant’s motivation and credibility is that appellant wanted the victim to remain silent about the battery because he was on probation and his arrest could lead to the revocation of his probation.”

770 So.2d at 726.

In this case during cross examination of the same witness, defendant also elicited the same statements, as well as other statements made during the same interrogation. His purpose was to show that in context the entire interrogation was exculpatory. Section 90.806 allows this specific use of such impeachment evidence. See 5 Jack B. Weinstein & Margaret A. Berger, Weinstein’s Fedekal Evidence § 806.04(2)(b) (Joseph M. McLaughlin ed., 2d ed. 2002) (“A defendant who chooses not to testify but who succeeds in getting his or her own exculpatory statements into evidence runs the risk of having those statements impeached by felony convictions.”), concerning the functionally identical federal evidence provision.

AFFIRMED.

KLEIN and SHAHOOD, JJ., concur.