author: BENTON, J. ERVIN, J., PER CURIAM. ERVIN, J., BARFIELD, J.,

text:
    Curtis FOSTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D00-4334.
    District Court of Appeal of Florida, First District.
    June 12, 2002.
    Order Granting Clarification Dee. 24, 2003.
    Nancy A. Daniels, Public Defender; M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Robert A. Butterworth, Attorney General; Robert L. Martin, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal of his burglary conviction, Curtis Foster contends that Delgado v. State, 776 So.2d 233 (Fla.2000), requires reversal. Even though the Legislature has since amended section 810.02(1), Florida Statutes (1999), we agree that Chapter 2001-58, section 1, Laws of Florida (codified at section 810.015, Fla. Stat. (2001)), does not render Delgado inapplicable. See Art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”)- We nevertheless affirm the conviction, because a recent decision of this court forbids reversal where the defense complains on appeal for the first time of “an allegedly] inaccurate definition of an element of a crime.” Reed v. State, 783 So.2d 1192, 1197 (Fla. 1st DCA 2001), rev. granted (Fla. Oct. 16, 2001).

I.

Early on the morning of April 22, 2000, evidence at trial showed, Angela Maxwell was inside a locked building selling gasoline and other wares, dealing with customers through a window designed for that purpose. Some time after three o’clock the store lights went off, inside and outside. When she then tried to use the telephone, it was dead, so she opened the door and yelled to a group of men standing on a nearby corner. But they ignored her.

Again inside the locked store, she heard voices outside near an air conditioning unit. Soon a bamming noise and telltale movements of the air conditioner convinced her an effort was under way to push the unit into the store and gain entrance through the opening. Exclaiming that she was going to call the police, she left the store, closed the door behind her, got into her car, drove across the street to a pay phone, and dialed 911. As she was reporting the situation, pieces of brick were thrown at her from the left side of the store.

She then drove to the police station, which was less than three minutes away, and had discussions there before eventually returning to the store, where she noticed that the door was open, and, inside, that the cash drawer was open. Officer Tolen and Sergeant Elkins had arrived on the scene before her, and had seen Mr. Foster flee from the store, cash in hand. When he ignored their orders to stop, they ran him down and arrested him.

Ms. Maxwell conceded that she did not see who was trying to break into the store, but testified that she never gave Mr. Foster permission to enter the store. Mr. Foster testified that, seeing the store dark and the door open, he went in, partly out of curiosity and partly in order to buy cigarettes, only to find money on the floor, which he picked up and took with him as he made his hasty exit. He testified that he had no intention to commit any crime at the time he entered the store. He kept going when he heard someone yell, “Hold it,” he testified, because he thought burglars, not law enforcement officers, were ordering him to stop.

In closing, the state argued that, even if the jury believed Mr. Foster’s version of events, they should still find him guilty of burglary because he remained inside the structure after forming the intent to commit theft by taking money that was not his:

If the defendant entered into the structure and while in the structure while remaining in that structure formed the intent to commit a theft then that is a burglary.
He does not have to form the intent before he enters into the structure. Before he commits the entrance. It’s enter or remain. Once he went into that structure he had no lawful authority to enter that structure while he was inside of that structure he formed the conscious intent to commit that theft while he remained in that structure.

The trial court gave the standard jury instructions on burglary, which defined the elements of the charged offense in the following words:

One, Curtis Foster entered or remained in a structure owned by or in possession of Baron Oil gas station. Two, Curtis Foster did not have the permission or consent of Baron Oil gas station or anyone authorized to act for them to enter or remain in the structure at that time. And three, at the time of entering or remaining in the structure Curtis Foster had a fully formed conscious intent to commit the offense of theft while in that structure.

(Emphasis supplied.) See § 810.02(1), Fla. Stat. (1999); Fla. Std. Jury Instr. (Crim.) 195. These instructions did not require the jury to find that Mr. Foster formed the intent to commit theft either before entering or while surreptitiously remaining in the structure.

II.

The difference between “remaining” and “remaining surreptitiously” took on legal significance under the burglary statute with our supreme court’s decision in Delgado. The supreme court held in Delgado that “the ‘remaining in’ clause should be limited to the defendant who surreptitiously remains.” 776 So.2d at 240; see Tinker v. State, 784 So.2d 1198, 1200 (Fla. 2d DCA 2001); Valentine v. State, 774 So.2d 934, 937 (Fla. 5th DCA 2001). Abandoning its earlier interpretation of the statute, the supreme court concluded in Delgado that the Legislature had not intended to define burglary in a way that included cases where a defendant who did not intend to commit an offense upon entering a structure did not, having formed such an intent once inside, thereafter “remain in” the structure surreptitiously. The Delgado court held that a person does not “remain in” a structure for purposes of the burglary statute, section 810.02(1), Florida Statutes (1989), unless the person remains inside surreptitiously. See 776 So.2d at 240.

The final Delgado opinion superseded and was “substituted in lieu” of the original opinion in Delgado, which had come down on February 3, 2000, see 25 Fla. L. Weekly S79, announcing the change in law before the events which gave rise to the present case took place. Only on August 24, 2000, however, after the alleged burglary, did the final opinion, reported at 776 So.2d at 234 and 776 So.2d 233, come down. The final Delgado opinion addressed the question of retroactivity for the first time, saying: “This opinion will not ... apply retroactively to convictions that have become final.” 776 So.2d at 241 (emphasis supplied). As we understand Delgado itself to say, therefore, an offender whose conviction was final before August 24, 2000, does not have the benefit of Delgado’s interpretation of the burglary statute, even if his offense occurred after February 3, 2000, when the initial Delgado decision came down. In the present case, however, although the events which gave rise to the prosecution occurred before the final opinion and the mandate issued in Delgado, the conviction under review was not final until after August 24, 2000.

III.

Appellant argues that his burglary conviction should be reversed because the jury might have convicted him on the theory that he remained in the store, having decided to take the money, despite concluding that he did not remain in the store surreptitiously. A conviction that rests on alternative bases, one of which is legally inadequate, cannot be upheld, if a general verdict makes it impossible to say with certainty that the jury convicted under a theory that was legally adequate. See Mackerley v. State, 777 So.2d 969, 969 (Fla.2001) (holding error is not harmless, when the accused is convicted of first-degree murder on a general verdict after a trial in which premeditation and felony murder theories are espoused, if “the felony underlying the felony murder charge is based on a legally unsupportable theory”). Basic requirements of due process require this rule, which finds support in the due process clauses both of the Florida and of the federal constitutions. See U.S. Const, amend. V; Art. I, § 9, Fla. Const. See generally Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled in part on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978).

Until Reed was decided, when a jury, instructed that it could convict for conduct that did not constitute an offense (or constituted some lesser offense), returned a general verdict, the conviction amounted to fundamental error, notwithstanding the existence of alternative, legitimate theories of guilt the evidence could support. See Mosely v. State, 682 So.2d 605, 607 (Fla. 1st DCA 1996); Arline v. State, 550 So.2d 1180, 1181 (Fla. 1st DCA 1989); see also Horn v. State, 677 So.2d 320, 323 (Fla. 1st DCA 1996) (holding enhancement on a general verdict for felony murder impermissible on account of possession of a firearm, because possession of a firearm was an essential element of one (but not all) of the predicate felonies the state relied on to prove felony murder).

The United States Supreme Court has held “the proper rule to be applied is that which requires a verdict to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” Yates, 354 U.S. at 312, 77 S.Ct. 1064; see generally Griffin v. United States, 602 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991) (explaining that reversal is not required under Yates so long as the evidence is sufficient under one alternative ground, if and only if each alternative ground is legally adequate); Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117 (1931). Here the jury was instructed that Mr. Foster was guilty of burglary if he “remained in the structure ... with the intent to commit an offense therein.” The jury was not instructed that he was not guilty if he had entered without the intent to commit an offense and had not remained surreptitiously. The jury instructions permitted the jury to find him guilty even if,. as argued by the state, he had not formed an intent to steal the money before entering the store, and even if he did not remain in the store surreptitiously. See Lopez v. State, 805 So.2d 41, 42 (Fla. 4th DCA 2001); Valentine, 774 So.2d at 937; Mosely, 682 So.2d at 606; Arline, 550 So.2d at 1181.

IV.

In the legislative session after Delgado was decided, the Legislature enacted Chapter 2001-58, section 1, at 404, Laws of Florida, which took effect May 25, 2001. Chapter 2001-58, section 1, provides:

810.015 Legislative findings and intent; burglary.—
(1) The Legislature finds that the case of Delgado v. State, Slip Opinion No. SC88638 [, 776 So.2d 233] (Fla.2000) was decided contrary to legislative intent and the case law of this state relating to burglary prior to Delgado v. State. The Legislature finds that in order for a burglary to occur, it is not necessary for the licensed or invited person to remain in the dwelling, structure, or conveyance surreptitiously.
(2) It is the intent of the Legislature that the holding in Delgado v. State, Slip Opinion No. SC88638 [, 776 So.2d 233] be nullified. It is further the intent of the Legislature that s. 810.02(l)(a) be construed in conformity with Raleigh v. State, 705 So.2d 1324 (Fla.1997); Jimenez v. State, 703 So.2d 437 (Fla.1997); Robertson v. State, 699 So.2d 1343 (Fla.1997); Routly v. State, 440 So.2d 1257 (Fla.1983); and Ray v. State, 522 So.2d 963 (Fla. 3rd DCA, 1988). This subsection shall operate retroactively to February 1, 2000.
(3) It is further the intent of the Legislature that consent remain an affirmative defense to burglary and that the lack of consent may be proven by circumstantial evidence.

Portions of the legislative history of Chapter 2001-58, section 1, Laws of Florida, also speak to legislative intent:

House Bill 953 clearly rejects the construction of the statute placed on it as a result of the Delgado opinion, and reasserts the seventeen year case precedent with respect to “remaining in” burglaries. Insofar as burglaries committed on or before July 1, 2001, the bill is a legislative restoration of the law of “remaining in” burglaries to what it ivas prior to the Delgado opinion. The purpose of this provision is to “resettle” the law with respect to pending burglaries and leave them undisturbed by the Delgado decision.

Fla. H.R. Comm, on Crime Prevention, Corrs., & Safety, HB 953 (2001) (enacted as Ch.2001-58, Laws of Fla.) Final Staff Analysis 4 (June 26, 2001). The statute had not been enacted at the time of appellant’s trial, September 18, 2000, or at the time of his sentencing, October 4, 2000.

y.

The Florida Supreme Court has suggested that Chapter 2001 58, section 1, Laws of Florida can be viewed as clarifying the legislative intent that originally animated the burglary statute. See Jimenez v. State, 810 So.2d 511, 512 (Fla.2001) (noting that “in its most recent session, the Legislature declared that Delgado was decided contrary to legislative intent and that this Court’s interpretation of the burglary statute in Jimenez’s direct appeal was in harmony with legislative intent”). The plain language of Chapter 2001-58, section 1, Laws of Florida, supports this view. But our supreme court has not overruled Delgado.

VI.

Special care must be exercised in interpreting criminal statutes where subsequently enacted legislation is considered, because the Florida Constitution restricts legislative power by forbidding statutes that authorize sanctions, and proscribing the application of later enacted statutes that “affect prosecution,” for conduct that has already occurred. See Art. X, § 9, Fla. Const. (“Repeal or amendment of a criminal statute shall not affect prosecution or punishment for any crime previously committed.”); State v. Smith, 547 So.2d 613, 616 (Fla.1989); Booker v. State, 514 So.2d 1079, 1082-83 (Fla.1987); State v. Eldredge, 801 So.2d 965, 966 (Fla. 4th DCA 2001); Rock v. State, 800 So.2d 298, 299 (Fla. 3d DCA 2001); State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001); Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988). See also Fla. Const., Art. I, § 10 (“No ... ex post facto law ... shall be passed.”). These constitutional restrictions on retrospective criminal statutes apply with full force to legislation explicitly purporting to nullify a judicial decision that has given a criminal statute a definitive gloss. See Smith, 547 So.2d at 616-17.

Pertinent in the present case is the state constitutional prohibition against applying a subsequently enacted statute in a way that “affect[s] prosecution ... for any crime previously committed.” Art. X, § 9., Fla. Const. Under Article X, section 9, the “repeal or amendment of any criminal statute does not affect the prosecution or punishment for any crime previously committed.” 15A Fla. Jur.2d Criminal Law § 2970 (2001).

The effect of this constitutional provision is to give to all criminal legislation a prospective effectiveness; that is to say, the repeal or amendment, by subsequent legislation, of a pre-existing criminal statute does not become effective, either as a repeal or as an amendment of such pre-existing statute, in so far as offenses are concerned that have been already committed prior to the taking effect of such repealing or amending law.

Raines v. State, 42 Fla. 141, 28 So. 57, 58 (1900). See Plummer v. State, 83 Fla. 689, 92 So. 222, 223 (1922) (dicta); Bradley v. State, 385 So.2d 1122, 1123 (Fla. 1st DCA 1980); State v. Pizarro, 383 So.2d 762, 763 (Fla. 4th DCA 1980) (“In fact, retroactive application of an amended or repealed statute affecting prosecution or punishment is unconstitutional. Article X, Section 9, Florida Constitution.”).

In deciding Delgado as it did, the Supreme Court of Florida unambiguously rejected its prior interpretation of section 810.02(1). See 776 So.2d at 241 (“[Tjoday, we recede from this Court’s previous opinions in Robertson, Jimenez, and Raleigh, a decision which we do not undertake lightly.”). “Although legislative amendment of a statute may change the law so that prior judicial decisions are no longer controlling, it does not follow that court decisions interpreting a statute are rendered inapplicable by a subsequent amendment to the statute.” Smith, 547 So.2d at 616 (quoting Heath, 532 So.2d at 10).

In Heath, this court recited the following principles: (1) it is the judiciary’s function to declare what the law is, thus court decisions interpreting a statute are not necessarily rendered inapplicable by a subsequent amendment, but must be examined in light of a statutory amendment “to determine what law may be applicable after the amendment;” (2) the statutes in effect at the time of commission of a crime control both the offenses for which a perpetrator can be convicted and the punishments which may be imposed ....

Payne v. State, 538 So.2d 1302, 1303 (Fla. 1st DCA 1989). By the time appellant stood trial, the Delgado court’s new, definitive construction of section 810.02(1) was binding. The offense allegedly occurred before Chapter 2001-58, section 1, Laws of Florida, took effect. By the time Chapter 2001-58 was enacted, the Delgado court had already announced the controlling construction of section 810.02(1), Florida Statutes (1989), as to all cases not yet final as of August 24, 2000. The Legislature was powerless to alter the chronology of these historical facts or to blink their constitutional significance.

VII.

The trial court should, therefore, have instructed the jury in accordance with Delgado. Instead, the standard jury instruction Delgado had ruled inadequate was given. But trial counsel did not request an alternative instruction, stated no objection to the instruction that was given, and did not move for judgment of acquittal on grounds that the verdict might reflect jury findings of fact that did not amount to burglary. Solely on the narrow ground of non-preservation — and only because we are so constrained by the decision in Reed, now pending review in our supreme court — do we affirm appellant’s conviction.

Affirmed.

BARFIELD, J., CONCURS; ERVIN, J., CONCURS WITH OPINION.

ERVIN, J.,

concurring.

Although I agree with the majority’s decision to affirm, I see no need to apply the extended analysis to the issue as undertaken by the majority. After the publication on August 24, 2000, of the final Delgado opinion (Delgado v. State, 776 So.2d 233 (Fla.2000)), the Florida Legislature enacted section 810.015, Florida Statutes (2001), which includes the legislative finding that the supreme court in Delgado had interpreted the burglary statute, section 810.021(1), Florida Statutes (1989), in a manner contrary to legislative intent and therefore the Delgado holding should be nullified. Ordinarily an amendment which does not create a substantive change in the law, but serves only to clarify the legislative intent, as reflected in the opinions preceding Delgado that were recited in section 810.015(2), does not violate the constitutional prohibition against ex post facto laws. See State v. Cotton, 769 So.2d 345 (Fla.2000); Barns v. State, 768 So.2d 529 (Fla. 4th DCA 2000), review dismissed, 796 So.2d 535 (Fla.2001); State v. Nuckolls, 606 So.2d 1205 (Fla. 5th DCA 1992).

It appears to me that the above rule is particularly applicable to a situation, such as that before .us, in which the amendment was enacted shortly after the controversy arose over the interpretation of the statute; thereby permitting a court to consider the amendment as simply a legislative interpretation of the original law. See Lowry v. Parole & Probation Comm’n, 473 So.2d 1248 (Fla.1985); Cotton.

In fact, following its decision in Delgado, and the legislative enactment, the Florida Supreme Court recognized the above rule by refusing post-conviction relief under Delgado to a death-row inmate in Jimenez v. State, 810 So.2d 511 (Fla.2001). In addition to reiterating that Delgado was not subject to retroactive application, the court continued with the following pertinent observations:

Moreover, in its most recent session, the Legislature declared that Delgado was decided contrary to legislative intent and that this Court’s interpretation of the burglary statute in Jimenez’s direct appeal was in harmony with legislative intent.

Id. at 512 (citation omitted).

The majority, like the Third District Court of Appeal in Ruiz v. State, 841 So.2d 468 (Fla. 3d DCA 2002) (on reh’g), and Braggs v. State, 815 So.2d 657 (Fla. 3d DCA 2002) (en banc), refuses to apply the above language to this appeal because the supreme court in Jimenez did not expressly overrule Delgado. See ante at 439. I am of the firm belief that such a conclusion is a mere quibbling over words. I would adopt in their entirety the following statements by Judge Green in her dissenting opinion in Braggs:

[TJhe language quoted from Jimenez was clearly an additional reason offered by the court as to why Jimenez was not entitled to post-conviction relief; and not, as my colleagues in the majority suggest, a discussion of why the Delgado decision had not met the test for retro-activity .... Given the Supreme Court’s clear acknowledgment that Delgado was decided contrary to legislative intent, I simply do not understand how the majority remains in a quandary about whether Delgado remains good law.... I believe that the appellant’s conviction for burglary with an assault should be affirmed based upon the court’s pronouncement in Jimenez. Although, the Supreme Court did not expressly state in Jimenez that it was receding from Delgado, it is quite clear that is what it did. For that reason, it is unnecessary for us to continue to blindly adhere to Delgado.

Braggs, 815 So.2d at 664 (Green, J., dissenting).

To conclude, I agree that appellant’s conviction for burglary should be affirmed, but for substantially different reasons from those expressed by the majority.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant’s motion for rehearing alleges that he is entitled to a reversal of his conviction on account of the decision in Reed v. State, 837 So.2d 366 (Fla.2002), which came down after we originally decided his case. See Foster v. State, 861 So.2d 434, 2002 WL 1285453 (Fla. 1st DCA, June 12, 2002). As we made clear in our original opinion, “[sjolely on the narrow ground of non-preservation' — and only because we [we]re so constrained by the decision in Reed [v. State, 783 So.2d 1192 (Fla. 1st DCA 2001)], [then] pending review in our supreme court — d[id] we affirm appellant’s conviction.” Foster, 861 So.2d at 441 (footnote omitted).

In subsequently quashing the decision by, which we were then constrained, our supreme court held that misstating an element of an offense in instructing the jury — even in accordance with an often used standard jury instruction — constituted fundamental error requiring reversal without regard to the usual rules of preservation because “the inaccurate definition of malice [the element at issue in Reed] reduced the State’s burden of proof’ on a disputed element. Reed, 837 So.2d at 369. In the present case, too, the jury instructions contained an inaccurate and incomplete definition of a disputed element of the offense, which requires reversal for a new trial. See Fitzpatrick v. State, 859 So.2d 486 (Fla.2003).

We certify the following question as a question of great public importance.

HAS SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, LEGISLATIVELY OVERRULED DELGADO v. STATE, 776 So.2d 233 (Fla.2000), AS TO CASES NOT FINAL AT THE TIME OF SUCH DECISION IN WHICH THE OFFENSES WERE COMMITTED ON OR AFTER FEBRUARY 1, 2000, THEREBY PERMITTING A TRIAL COURT TO INSTRUCT A JURY THAT IT MAY FIND A DEFENDANT GUILTY OF BURGLARY, DESPITE EVIDENCE SHOWING A LEGAL ENTRY INTO THE PREMISES AND THAT AN OFFENSE WAS COMMITTED THEREIN WHILE THE DEFENDANT REMAINED WITHIN NON-SURREPTITIOUSLY?

Reversed and remanded.

ERVIN, BARFIELD, and BENTON, JJ., concur. ERVIN, J., concurs specially with a written opinion. BARFIELD, J., concurs specially with a written opinion.

ERVIN, J.,

concurring.

The question certified by this court asks the Florida Supreme Court to decide an issue which the court alluded to, but did not decide, in Floyd v. State, 850 So.2d 383 (Fla.2002). In Floyd, one of the questions raised was whether the trial court fundamentally erred in instructing the jury that it could find the defendant guilty of armed burglary if, at the time he remained inside a residence, he had formed the intent to commit an offense, when there had been no showing that the “remaining in” was accomplished surreptitiously. Relying on the Fifth District’s analysis in Valentine v. State, 774 So.2d 934 (Fla. 5th DCA 2001), the supreme court concluded that the giving of the instruction was fundamental error, requiring reversal of the conviction for armed burglary. Floyd, 850 So.2d at 401-02.

The offense in Floyd occurred in 1998, well before February 1, 2000, the date the legislature, in section 810.015(2), Florida Statutes (2001), declared the supreme court’s decision in Delgado v. State, 776 So.2d 233 (Fla.2000), to be contrary to legislative intent and therefore null. In deciding the case as it had, the supreme court added the following important footnote to its opinion:

We are aware that in enacting section 810.015(2), Florida Statutes (2001), the Legislature stated its intent “that the holding in Delgado v. State ... be nullified.” However, the Legislature also stated that subsection (2) of § 810.015 would “operate retroactively to February 1, 2000.” The events in Floyd’s case occurred well before February 1, 2000. Therefore, because the events in Floyd’s ease do not fall within the window established by the Legislature for retroactive application of section 810.015(2), we need not address the issue of the retroactive effect of the statute. See R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) (reversing defendant’s conviction for burglary of a dwelling, based on Delgado v. State, and noting that the Legislature’s language in section 810.015(2) regarding the nullification of Delgado did not apply because the defendant’s actions took place prior to February 1, 2000).

Floyd, 850 So.2d at 402 n. 29. In the case at bar, Foster was convicted of a burglary committed on April 22, 2000.

The supreme court recently made clear what it had intimated in Floyd, ie., that the legislative amendment had no applicability to alleged burglarious conduct committed before February 1, 2000, but it again left open the question whether conduct that occurred thereafter was so affected. See State v. Ruiz, 868 So.2d 1205, 2003 WL 22964652 (Fla. Dec. 18, 2003). I find it interesting that in so deciding, the court declined to reach the question actually certified to it by the Third District, which asked whether the amendment had overruled Delgado as to crimes committed on or before July 1, 2001, but rephrased it to ask whether the amendment applied to such conduct that occurred prior to February 1, 2000. As a result of the court’s decision in Ruiz, one can appropriately conclude the following: That in regard to alleged burglarious acts occurring before February 1, 2000, the court will rule the nullification amendment inapplicable. As to conduct occurring thereafter, how the court will construe the statute is less clear. It is possible that the court will defer to the legislative will and hold that Delgado has no continuing efficacy. On the other hand, the court could decide that because the amendment is a penal statute and no notice was provided the public of the legislative intent until the effective date of the statute, which took place on May 25, 2001, the amendment is applicable only as to conduct transpiring after said date.

I question whether the decision Judges Benton and Barfield rely on, Fitzpatrick v. State, 859 So.2d 486 (Fla.2003), requires reversal and remand. In Fitzpatrick, the crime occurred on February 8, 1980, also before the effective date of the amendment to section 810.015(2). Fitzpatrick is consistent with Delgado, wherein the court limited its application to pending cases but not to cases that had become final before its original decision on February 3, 2000. Delgado, 776 So.2d at 241. See also Jimenez v. State, 810 So.2d 511 (Fla.2001). Fitzpatrick clearly did not address the question left unanswered in Floyd and Ruiz ■ as to whether the nullification amendment applied to a defendant who committed burglary after February 1, 2000, as was charged against appellant Foster.

In deciding Delgado, the court based its limiting construction of the burglary statute upon what it perceived to be the legislative intent, rather than any constitutional provision. See Delgado, 776 So.2d at 241 n. 7; Jimenez, 810 So.2d at 512-13 (observing that Delgado need not be given retroactive application, because the decision is not constitutional in nature nor does it have fundamental significance). Because Delgado is based purely on the court’s interpretation of the statute, I would ordinarily have considered that the nullification amendment, enacted during the year following the decision, should have ended any controversy over the legislature’s intent in adding the “remaining in” language to the burglary statute. It has long been recognized that when “an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985). See, e.g., Barns v. State, 768 So.2d 529, 530-33 (Fla. 4th DCA 2000); Matthews v. State, 760 So.2d 1148, 1150 (Fla. 5th DCA 2000); State v. Nuckolls, 606 So.2d 1205, 1207 (Fla. 5th DCA 1992). Consequently, such laws do not violate the constitutional prohibition against ex post facto laws. See Skeens v. State, 556 So.2d 1113 (Fla.1990).

Because of the uncertainty attending the application of the legislative amendment to cases pending at the time the amendment took effect on May 25, 2001, such as that at bar, I concur in the result, albeit reluctantly.

BARFIELD, J.,

concurring.

In concurring with the court’s opinion, I recognize that there remains open the question of whether this crime committed before Delgado v. State, 776 So.2d 233 (Fla.2000) became final, tried after Delgado became final, but not yet final when the legislature made Chapter 2001-58, section 1, Laws of Florida, effective retroactively to a date preceding the date the crime was committed, is controlled by Delgado. To conclude that Delgado does not control this case would attribute to the legislature the same incongruity toward defendants that the supreme court has evidenced in its opinions.

It is apparent to me that the legislature, in setting a retroactive date of February 1, 2000, intended to reject the Delgado decision as inconsistent with long-standing legislative intent that had been understood by the courts for years until the Delgado decision. It did not intend to differentiate between crimes committed before February 1, 2000, and those committed on or after that date. The legislature would have been better served had it omitted a specific retroactive date and simply said that the Delgado decision was wrong.

Given this view of Chapter 2001-58, section 1, Laws of Florida, it is my opinion that Fitzpatrick v. State, 859 So.2d 486 (Fla.2003), leaves us no alternative but to reverse.

      . The change wrought by Delgado took effect (both prospectively and, as to pipeline cases, retrospectively) when the final opinion in Delgado came down, after the burglary alleged in the present case transpired, but before trial.

      . Our conclusion in this regard finds support in the decision in Henderson v. State, 698 So.2d 1205 (Fla.1997), where the supreme court accepted jurisdiction to answer this certified question:
      DOES THE DECISION IN CONEY v. STATE, 653 So.2d 1009 (Fla.), cert, denied, [516] U.S. [921], 116 S.Ct. 315, 133 L.Ed.2d 218 (1995) APPLY TO CASES IN WHICH THE JURY SELECTION PROCESS TOOK PLACE AND THE ENTIRE TRIAL CONCLUDED DURING THE PERIOD OF TIME AFTER THE ISSUANCE OF THE CONEY OPINION BUT PRIOR TO THE TIME THAT CONEY BECAME FINAL BY THE DISPOSITION OF ALL MOTIONS FOR REHEARING DIRECTED TO THAT OPINION?
      Even though the Coney opinion had not changed on rehearing, the court held: "When we state that a ruling is prospective only, the ruling does not take effect until the time for rehearing has run.” 698 So.2d at 1205. But see Scarpillo v. State, 576 So.2d 377, 378 (Fla. 4th DCA 1991).

        Our supreme court decided, in Dixon v. State, 730 So.2d 265 (Fla.1999), that the effective date of State v. Callaway, 658 So.2d 983 (Fla.1995), was the date the mandate ■ issued there, answering affirmatively this question:
      WHETHER A DEFENDANT'S RULE 3.850 MOTION SEEKING THE RETROACTIVE APPLICATION OF HALE [v. STATE, 630 So.2d 521 (Fla.1993)] WAS TIMELY WHEN FILED WITHIN TWO YEARS FROM THE DATE THE MANDATE ISSUED IN THIS COURT'S OPINION IN CALLAWAY, WHICH ANNOUNCED THE RETROACTIVITY OF HALE.

        730 So.2d at 265-66. In the present case, August 24, 2000 was "the date of our [supreme court's] decision announcing retroac-tivity,” id. at 267, and therefore, by analogy to Dixon, the effective date of the change in law.
      The opinion in Brown v. State, 719 So.2d 882, 884 n. 1 (Fla.1998) specifies that the change in law at issue there "will have no retroactive application to cases final as of the date this opinion is released,” rather than referencing the court’s mandate. But there the sole opinion issued in the case dealt with retroactivity. Similarly, in State v. Barquet, 262 So.2d 431, 438 (Fla.1972), the supreme court made "the filing date of this opinion” dispositive, rather than the date the court’s mandate issued.

      . The events that gave rise to Mr. Foster’s conviction occurred after February 1, 2000. Cf. Otero v. State, 807 So.2d 666, 667 & n. 4 (Fla. 4th DCA 2001); Schrack v. State, 793 So.2d 1102, 1103 n. 1 (Fla. 4th DCA 2001) ("During the pendency of this appeal, the Legislature expressly nullified Delgado. This nullification, however, [purportedly] operates retroactively to February 1, 2000. Because the events herein occurred prior to that date, we do not discuss this enactment.” (citations omitted)); R.C. v. State, 793 So.2d 1078, 1079 n. 1 (Fla. 2d DCA 2001) ("Section 810.015, Florida Statutes (2001), nullifies Delgado v. State, 776 So.2d 233. Although that nullification [purportedly] operates retroactively, the legislature limited that retroactivity to February 1, 2000. The instant events took place prior thereto.”); Ruiz v. State, 789 So.2d 1108, 1108 n. 1 (Fla. 3d DCA 2001) ("We are aware of the creation of section 810.015, Florida Statutes (2001) expressing the legislature's finding that Delgado v. State was decided contrary to legislative intent, and setting forth the intent to nullify Delgado. Although the legislature provided that the nullification operates retroactively, it limited that retroac-tivity to February 1, 2000. The instant events took place prior thereto.”); Tinker v. State, 784 So.2d 1198, 1199-1200 (Fla. 2d DCA 2001).

      . That courts may, as a general proposition, consider subsequent clarifying legislation in interpreting statutes is clear. See Bell v. New Jersey, 461 U.S. 773, 784, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) ("Of course, the view of a later Congress does not establish definitively the meaning of an earlier enactment, but it does have persuasive value."); Parker v. State, 406 So.2d 1089, 1092 (Fla.1981); Burgos v. State, 765 So.2d 967, 968 (Fla. 4th DCA 2000); Gamble v. State, 723 So.2d 905, 907 (Fla. 5th DCA 1999); State v. Williams, 417 So.2d 755, 758 (Fla. 5th DCA 1982). A court may, indeed, have a duty to look to subsequent legislation in order to ascertain the correct meaning of a statute. See Barns v. State, 768 So.2d 529, 533 (Fla. 4th DCA 2.000) (construing statute that “limited the trial court's discretion on bond issues”); Gamble, 723 So.2d at 906. Our supreme court has also said that when "an amendment to a statute is enacted soon after controversies as to the interpretation of the original act arise, a court may consider that amendment as a legislative interpretation of the original law and not as a substantive change thereof.” Lowry v. Parole and Prob. Comm’n, 473 So.2d 1248, 1250 (Fla.1985) (construing statute that "clarified the manner in which presumptive parole release dates [were] calculated”); see Barns, 768 So.2d at 530-33; Matthews v. State, 760 So.2d 1148, 1150 (Fla. 5th DCA 2000); State v. Nuckolls, 606 So.2d 1205, 1207 (Fla. 5th DCA 1992). But see State v. Eldredge, 801 So.2d 965, 966 (Fla. 4th DCA 2001) (rejecting contention that amendments to a criminal statute "merely 'clarified' existing law, and should therefore be applied retroactively”); Rock v. State, 800 So.2d 298, 299 (Fla. 3d DCA 2001); State v. Miranda, 793 So.2d 1042, 1044 (Fla. 3d DCA 2001) (same).
      The prospective effect of Chapter 2001-58, section 1, Laws of Florida is not at issue in the present case.

      . The federal constitution also forbids ex post facto legislation. See Rogers v. Tennessee, 532 U.S. 451, 121 S.Ct. 1693, 149 L.Ed.2d 697 (2001) ("The Ex Post Facto Clause, by its own terms, does not apply to courts.” 121 S.Ct. at 1699).

      . The substance of the current Article X, section 9 dates to the 1885 Constitution: "The repeal or amendment of any Criminal Statute shall not affect the prosecution or punishment of any crime committed before such repeal or amendment.” Art. Ill, § 32, Fla. Const. (1885). See generally Ex Parte Pells, 28 Fla. 67, 9 So. 833, 834-35 (1891); Higginbotham v. State, 19 Fla. 557, 559-60 (1882).
      The substance of the current Article I, section 10 dates to the 1838 Constitution: "That retrospective laws, punishing acts committed before the existence of such laws, and by them only declared penal, or criminal, are oppressive, unjust, and incompatible with liberty; wherefore, no ex post facto law shall ever be made.” Art. I, § 18, Fla. Const. (1838). See also Declaration of Rights, § 16, Fla. Const. (1868) ("No ... ex post facto law ... shall ever be passed.”).
      The supreme court’s decisions collected in footnote 1 seem to require the conclusion that the alleged offense antedated the effective date of the decision in Delgado, even though the initial opinion came down before the alleged offense occurred. Today's decision is fully supportable, however, on the authority of Article X, section 9 of the Florida Constitution. See Bates v. State, 750 So.2d 6, 19 (Fla. 1999) (Harding, C.J., concurring) (noting that Article X, section 9 of the Florida Constitution applies even where "ex post facto protections are not implicated”).

      . Inasmuch as the prosecutor argued in closing that the jury could convict on the very theory that Delgado disallowed, we could not find the error harmless, if preserved.

      . In section 810.02(l)(b), Florida Statutes (2002), the legislature specified that its new definition of burglary, providing that the offense can be accomplished by remaining within a dwelling, structure or conveyance after permission to remain within has been withdrawn, applied to offenses committed after July 1, 2001.

      . See Ch.2001-58, § 4, at 406, Laws of Fla.

      . Ch.2001-58, § 4, at 406, Laws of Fla.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AGROBIN, INC., a Florida corporation, Appellant, v. BOTANICA DEVELOPMENT ASSOCIATES, INC. a Florida corporation, Appellee.
    No. 3D03-310.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.

      Montalvo and Associates, and Armando Montalvo, Miami, and Margaret Brodsky, for appellant.
    Craig Z. Sherar, Coconut Grove, and Patricia M. Arias, for appellee.
    Before GERSTEN, GODERICH and SHEVIN, JJ.
   PER CURIAM.

Agrobin, Inc., (“Agrobin”) appeals a summary judgment in favor of Botánica Development Associates, Inc. (“Botánica”). We affirm.

Andrew Robinson formed a corporation, Agrobin for the purpose of purchasing a condominium apartment unit. Agrobin then contracted with Botánica to purchase a condominium on Key Biseayne. The contract contained an “as is” clause and the standard inspection clause. Agrobin claims that the property was bought as a vacation home. However, it is undisputed that Agrobin also rented out the condominium.

Two years later, the owners of the unit immediately below Agrobin’s roof terrace sued Agrobin and Botánica for damages caused by leaks to their apartment. Agro-bin filed a cross-claim against Botánica for contribution, indemnity and fraud, claiming that Botánica failed to disclose the known leakage problem based on Johnson v. Davis, 480 So.2d 625 (Fla.1985). The trial court granted summary judgment on the cross claim.

In Johnson v. Davis, the Florida Supreme Court abolished the doctrine of caveat emptor on the sale of new or used homes. See Johnson, 480 So.2d at 629. Johnson did not extend the duty to disclose to commercial transactions. See Wasser v. Sasoni, 652 So.2d 411 (Fla. 3d DCA 1995); Green Acres, Inc. v. First Union Nat’l Bank of Fla., 637 So.2d 363 (Fla. 4th DCA 1994); Futura Realty v. Lone Star Bldg. Ctrs., Inc., 578 So.2d 363 (Fla. 3d DCA 1991).

As previously noted by this court, “a sophisticated purchaser of commercial property who agreed to an “as is” purchase contract, had ample opportunity to conduct inspections, and could have discovered an alleged defect through the exercise of ordinary diligence, may be disgruntled, but does not have a cause of action for fraud.” Wasser, 652 So.2d at 413.

Here, the property was purchased by a corporation for a commercial venture. Under these circumstances, the seller did not have a duty to disclose. Accordingly, the trial court properly entered summary judgment in favor of Botánica.

Affirmed.


author: STONE, J. WARNER, J.,

text:
    DEERBROOKE INVESTMENTS, INC., Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 4D01-5043.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Rehearing Denied Nov. 26, 2003.
    Kenneth M. Hart and Nicole Nugan of Gunster, Yoakley & Stewart, P.A., West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee, for appellee.
   STONE, J.

Deerbrooke Investments, Inc. (“Deer-brooke”) appeals an order of the Florida Department of Revenue (“the department”) imposing an assessment of state sales and use taxes. We reverse in part and affirm in part.

Deerbrooke is a Panamanian company which operates cruises from the Port of Palm Beach “to nowhere” (a little farther than three miles from shore) and back for the purpose of gambling outside of Florida territorial waters. The cruises are conducted twice daily, seven days a week. The department conducted a tax audit of Deerbrooke for the audit period of January 1, 1997 through November 30, 1998 and, as a result, assessed Deerbrooke with unpaid sales and use taxes in the amount of $1,174,831.03, plus penalties and interest, through December 30, 1999. The sales and use tax assessments were on: (1) revenues received from concessionaires pursuant to their rental agreements; (2) gaming equipment leased; (3) food which was prepared for and consumed by passengers aboard the vessel; and (4) rented real property located in Palm Beach county.

Deerbrooke contends that, because its vessel traveled to a point outside of U.S. territorial waters, it was engaged in foreign commerce for which Deerbrooke would not be subject to Florida tax pursuant to section 212.05, Florida Statutes. Under this provision, Florida sales and use tax is levied on anyone who,

engages in the business of selling tangible personal property at retail in this state, including the business of making mail order sales, or who rents or furnishes any of the things or services taxable under this chapter, or who stores for use or consumption in this state any item or article of tangible personal property as defined herein and who leases or rents such property within the state.

§ 212.05, Fla. Stat. (2001).

Section 212.08, Florida Statutes, allows a partial exemption for vessels engaged in both intrastate and interstate or foreign commerce. Vessels used exclusively in intrastate commerce do not qualify for proration of the tax. Vessels used exclusively in interstate or foreign commerce are completely exempt from Florida’s sales and use tax. The partial exemption is computed based on the ratio of miles traveled within Florida and its territorial waters, as a percentage of the total miles traveled in interstate or foreign commerce. This ratio determines the portion of the vessel’s taxable activity which is subject to Florida’s use tax. § 212.05, Fla. Stat. (2001).

Deerbrooke contends that its “cruise to nowhere” constitutes purely foreign commerce, while the department asserts that it is purely intrastate commerce. However, in New Sea Escape Cruises, Ltd. v. Florida Department of Revenue, 823 So.2d 161, 163 (Fla. 4th DCA 2002), rev. granted, 845 So.2d 889 (Fla.2003), we recognized that the purpose of the tax according to section 212.05, Florida Statutes, was to tax those conducting business “in this state.” Thus, the mileage accrued outside Florida waters during New Sea Escape’s cruises to nowhere could not be taxed as “Florida mileage” under section 212.05 and required proration.

We recognize that in New Sea Escape, the taxpayer argued that it was entitled to a partial exemption, whereas Deerbrooke claims a total exemption. Nevertheless, we conclude, applying New Sea Escape, that the lease of gaming equipment for use on board the Princess, along with revenue received from gift shop and photography concessionaires as rent, should be prorated under section 212.08(8).

Deerbrooke seeks to distinguish New Sea Escape as involving a proration with a portion of the trip in interstate commerce whereas, here, it claims to be involved in foreign commerce.

However, in cruising over three miles off of the coast, Deerbrooke did not travel outside U.S. waters as U.S. territorial limits have been extended beyond their three-mile limit to twelve miles by presidential proclamation. The First District echoed this conclusion in Dream Boat, Inc. v. Department of Revenue, 2003 WL 1560175, — So.2d - (Fla. 1st DCA 2003), holding that U.S. territorial waters extended twelve miles from coast pursuant to presidential proclamation and, as such, Dream Boat was not engaged in foreign commerce where it did not travel beyond the twelve mile boundary. However, even if Deer-brooke had been in international waters on its cruises to nowhere, we conclude that a vessel that remains in the state’s port and profits from daily cruising just outside of the state’s territorial waters and back does not interfere with foreign commerce and raises no concern that foreign nations would feel the need to retaliate. Cf. Japan Line, Ltd. v. Cty. of Los Angeles, 441 U.S. 434, 99 S.Ct. 1813, 60 L.Ed.2d 336 (1979).

Dream Boat notes conflict with New Sea Escape. The First District held that Dream Boat was not entitled to even a partial exemption because there was no foreign or interstate commerce; the cruises to nowhere were engaged purely in intrastate commerce. We note that this court, in holding that Sea Escape was entitled to a partial exemption, did not expressly rely on the interstate/foreign commerce argument to do so. This conflict will soon be resolved by the supreme court which granted review of New Sea Escape, on May 15, 2003.

Until then, we conclude that, with respect to the sales and use taxes, the department erred in deciding that Deer-brooke did not qualify for a partial exemption on the shipboard concessions and gambling equipment. Therefore, as to those taxes, we reverse and remand for proration in accordance with New Sea Escape.

As to other matters raised, including the taxes imposed on the lease of real property and on the cost of food purchased for meals consumed on board by passengers, we affirm.

FARMER, C.J. concurs.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurs specially.

I concur because of New Sea Escape Cruises, Ltd. v. Florida Department of Revenue, 823 So.2d 161, 163 (Fla. 4th DCA 2002), rev. granted, 845 So.2d 889 (Fla.2003). Were we writing on a clean slate, I would agree with Dream Boat, Inc. v. Department of Revenue, 2003 WL 1560175, — So.2d - (Fla. 1st DCA 2003).

      . Section 212.08(8)(a) provides for a partial exemption from taxation for vessels engaged in interstate or foreign commerce:
      The sale or use of vessels and parts thereof used to transport persons or property in interstate or foreign commerce, including commercial fishing vessels, is subject to the taxes imposed in this chapter only to the extent provided herein. The basis of the tax shall be the ratio of intrastate mileage to interstate or foreign mileage traveled by the carrier's vessels which were used in interstate or foreign commerce and which had at least some Florida mileage during the previous fiscal year.... This ratio shall be applied each month to the total Florida purchases of such vessels and parts thereof which are used in Florida to establish that portion of the total used and consumed in intrastate movement and subject to the tax at the applicable rate.... Vessels and parts thereof used exclusively in intrastate commerce do not qualify for the proration of tax.
      § 212.08, Fla. Stat. (2001)(emphasis added).

      . No. 5928, 54 Fed.Reg. 777 (Dec. 27, 1988).


author: HAWKES J.

text:
    Ronald GUYNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4619.
    District Court of Appeal of Florida, First District.
    Sept. 12, 2003.
    Rehearing Denied Oct. 23, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   HAWKES J.

The defendant entered into a plea bargain with the State Attorney’s office. Pursuant to that plea bargain, he pled guilty to dealing in stolen property and grand theft of the same property. The defendant appeals the trial court’s summary denial of his 3.850 motion. The core of defendant’s allegations is that his conviction and sentences violate the double jeopardy provisions of the state and federal constitutions. We find the defendant waived any double jeopardy claim that may affect either his convictions or his sentences under article I, section 9, of the Florida Constitution or of the Fifth Amendment to the United States Constitution, and therefore affirm.

Simultaneous convictions for these two crimes violate the prohibition against double jeopardy unless waived by the defendant. See Kilmartin v. State, 848 So.2d 1222 (Fla. 1st DCA, 2003). The defendant pled guilty to both grand theft and dealing in stolen property after being fully advised by counsel. The trial judge conducted a detailed plea colloquy, and the defendant testified he understood he was pleading guilty to one count of dealing in stolen property and one count of grand theft. The factual basis the State recited identified the property as the same for both offenses. The defendant further testified he considered the plea bargain to be to his advantage.

The negotiated plea agreement placed obligations on both parties. The defendant agreed, in part, to be sentenced as an habitual felony offender to a term of 13 years in prison on the dealing in stolen property charge and a concurrent 10 years on the grand theft charge. The State agreed, in part, not to file a pending armed burglary charge. Had the defendant been convicted of armed burglary, he would have faced a sentence of life in prison as a prison releasee reoffender.

The defendant entered into a voluntary plea bargain. He believed this plea to be in his best interest. In exchange for his plea he received less than a maximum sentence and the forbearance of the State in filing additional charges. Having accepted the benefits of the bargain by avoiding a potential life sentence, the defendant cannot, any more than any other contracting party, be relieved of the burden of his bargain. See Novaton v. State, 634 So.2d 607 (Fla.1994).

AFFIRMED.

BOOTH, and VAN NORTWICK, JJ., concur.


author: GROSS, J.

text:
    John LANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-250.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Carey Haughwout, Public Defender, and Iva Oza, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

Along with two co-defendants, the state charged appellant, John Lane, with attempted murder in the second degree. We reverse appellant’s conviction for aggravated battery, which, in this case, should not have been given to the jury as a lesser included offense of attempted second degree murder.

The information read:

[The State Attorney] charges that [the defendants] on the 9th day of November, A.D.2000, in the County and State aforesaid, by an act imminently dangerous to another and evincing a depraved mind regardless of human life, although without a premeditated design to effect the death of any particular individual, did unlawfully attempt to kill and murder one Naphtily Collins, a human being, by striking Naphtily Collins repeatedly about the head and face, contrary to F.S. 782.04 and F.S. 777.04(4).

The case arose from an incident in a park where a group of young people choked, punched, and kicked the victim while he was on the ground. As a result of the beating, upon his admission to the hospital, the victim required intracranial pressure monitoring to treat a life threatening condition. Also, due to the blunt trauma to his skull, the victim had a lateral gaze of the right eye, which meant that he was unable to have his eyes face in the same direction. A month after the incident, a clinical neuropsychologist found that the victim had such significant memory deficits that he had no recollection of the beating.

During a recess of the defense’s case, the parties discussed jury instructions. In a discussion of lesser included crimes, defense counsel noted that “[w]e are not asking for aggravated battery,” but only for battery and assault. After the state remarked that it was requesting aggravated battery, the trial court announced that it would include all three of these lesser-included offenses, aggravated battery, battery, and assault. The state commented that defense counsel should review the final verdict form; the trial court then noted that “[defense counsel] has an objection to the aggravated battery.” Defense counsel objected to a principal instruction.

The trial court instructed the jury on the crime of attempted second degree murder and on the lesser included crimes of aggravated battery, battery, and assault. The jury returned a verdict finding Lane guilty of aggravated battery.

Lane contends that the trial court erred when it instructed the jury on the permissive lesser included offense of aggravated battery. His argument is that the instruction was improper “because the information did not allege all the elements of aggravated battery, specifically, that [Lane] intentionally or knowingly caused great bodily harm.” See § 784.045(1), Fla. Stat. (2001).

Although Lane generally objected to the giving of the aggravated battery instruction at trial, he did not articulate the argument he now makes on appeal. Florida Rule of Criminal Procedure 3.390(d) requires such precision, providing that

[n]o party may raise on appeal the giving or failure to' give an instruction unless the party objects thereto before the jury retires to consider its verdict, stat ing distinctly the matter to which the party objects and the grounds of the objection.

(Emphasis added). Defense counsel’s statement that he was “not asking for ag-r gravated battery” was insufficient to alert the trial judge as to the error for which Lane now seeks reversal and did not preserve the issue for appeal. See Cardenas v. State, 816 So.2d 724, 726 (Fla. 1st DCA 2002) (“Merely objecting to the giving of a standard jury instruction, without stating the specific grounds for the objection, does not preserve for appellate review the issue of whether the instruction was given in error.”).

Even if an issue pertaining to a jury instruction has not been preserved, it may by raised on appeal if fundamental error has occurred. See Lawrence v. State, 831 So.2d 121, 137 (Fla.2002). Ray v. State, 403 So.2d 956 (Fla.1981), compels the conclusion that fundamental error occurred which requires reversal of this ease.

In Ray, the defendant was charged with sexual battery with physical force not likely to cause serious personal injury. See § 794.011(5), Fla. Stat. (1975). The defendant was convicted of lewd assault, which the trial court submitted to the jury as a lesser included offense of the sexual battery. See § 800.04, Fla. Stat. (1975); Ray, 403 So.2d at 958. Both of these crimes instructed on by the trial court were second degree felonies. Lewd assault was improperly given as a permissive lesser included offense “because the information did not contain all the elements specified in section 800.04.” Ray, 403 So.2d at 959.

The supreme court held that Ray’s silence in the face of the erroneous charge did not waive the error. Id. at 961. The supreme court stated its holding in the negative:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper, charge or relied on that charge as evidenced by argument to the jury or other affirmative action. Failure to timely object precludes relief from such a conviction.

Id. (footnote omitted). The supreme court observed that these conditions had not been met in Ray; both the crime charged and the ultimate conviction were second degree felonies and defense counsel had neither requested nor relied on the “lesser” lewd assault charge. Id.

This ease falls under the Ray rule. Aggravated battery may be a permissive lesser included offense of attempted second degree murder depending upon the allegations in the information. Here, the information did not allege that Lane intentionally or knowingly caused great bodily harm or permanent disability to the victim. Therefore, as Lane argues, aggravated battery should not have been charged as a lesser included offense.

In this case, defense counsel did not request the charge or rely on it during closing argument. Both attempted second degree murder and aggravated battery are second degree felonies. Neither Ray exception applies in this case; failure to properly object does not preclude relief from the aggravated battery conviction. Ray, 403 So.2d at 961.

We therefore reverse the conviction and sentence for aggravated battery. On remand, the state may file a new or amended information charging appellant with aggravated battery if it so elects. See K.H. v. State, 763 So.2d 1187, 1188 n. 1 (Fla. 4th DCA 2000).

Lane urges us to decide this case based on Levesque v. State, 778 So.2d 1049 (Fla. 4th DCA 2001). However, we conclude that Levesque was wrongly decided, in that it conflicts with Ray and an earlier en banc opinion of this court, Tolbert v. State, 679 So.2d 816 (Fla. 4th DCA 1996).

The defendant in Levesque was charged with second degree murder. He was convicted of aggravated battery. 778 So.2d at 1050. For the first time on appeal, the defendant argued that it was error to give the aggravated battery jury instruction because the information did not contain all the elements of the lesser offense. In spite of the preservation problem, Levesque found no waiver, based on the broad statement that “it is fundamental error for a person to be convicted of an offense not charged in the information.” Id. at 1051. For this proposition, Levesque cited to K.H. Levesque ignored the language in K.H. which acknowledges the rule of Ray, quoted above.

Levesque fell within the Ray rule. Aggravated battery was “lesser in degree and penalty” than the main offense of second degree murder. Ray, 403 So.2d at 960. The defendant’s failure to properly object at trial should have been fatal to his argument in Levesque. It was not.

Levesque also conflicts with Tolbert. In that case, Tolbert was charged with five counts of sexual battery using actual force likely to cause serious personal injury. See § 794.011(3), Fla. Stat. (2000). At the charge conference, the defense stated that “it did not want the jury to be instructed on any lesser included offenses.” Tolbert, 679 So.2d at 817. As to each count of sexual battery, the court permitted a lesser included offense of aggravated battery. Id. The defendant was convicted of five counts of aggravated battery.

Aggravated battery was a permissive lesser included offense of the type of sexual battery charged in Tolbert. However, not all the elements of aggravated battery were alleged in the charging information. Tolbert argued that he could not be convicted of the batteries, citing the rule that a defendant may not be convicted of a permissive lesser included offense where the information is silent as to an essential element of that offense. Id. at 818.

We held that Tolbert had failed to preserve this argument for appellate review, by failing to raise it at trial. His general objection was insufficient. We wrote:

that this issue was not preserved for appeal because appellant’s general objections to instructions on any lesser included offenses did not apprise the trial court of the ground now relied upon by appellant, i.e., that an element of aggravated battery was not alleged in the information. It is well settled that in order to preserve an issue for appellate review, the specific legal ground or argument relied upon for appeal must have been presented to the trial court. In the instant case, it is reasonable that the trial court might have believed appellant’s general objections were based on a lack of evidence as to any- lesser included offenses.

Id. (citation omitted). Tolbert was consistent with Ray because aggravated battery, a second degree felony, is lesser in degree and penalty, than the type of sexual batteries charged, all life felonies. See § 794.011(3), Fla. Stat. (2000).

Levesque cited to neither Ray nor Tolbert. It conflicts with both of them. It is not necessary to en banc this case to formally recede from Levesque, because Ray, a Florida supreme court case,. controls. See Corporate Sec. Group v. Lind, 753 So.2d 151, 153 (Fla. 4th DCA 2000). Levesque is merely a rogue case, one decided contrary to controlling precedent which is not mentioned in the opinion..

GUNTHER and KLEIN, JJ., concur.

      . At the time Ray was decided, lesser included offenses were analyzed under the framework of Brown v. State, 206 So.2d 377 (Fla.1968). A "category 4” lesser included offense under Brown, is similar to a permissive lesser included offense in today's terminology. In Matter of Use hy Trial Courts of Standard Jury Instructions, 431 So.2d 594 (Fla.1981), the Florida Supreme Court consolidated the four categories of offenses it had previously delineated in Brown, i.e., (1) crimes divisible into degrees; (2) attempts to commit offenses; (3) offenses necessarily included in the offense charged; and (4) offenses which may or may not be included in the offense charged, depending on the accusatory pleading and the evidence. Id. at 596.

      . Second degree murder is a first degree felony. See § 782.04(2), Fla. Stat. (2000). An attempt to commit that crime reduces it to a second degree felony. See § 777.04(4)(c), Fla. Stat. (2000).

      . See § 784.045(2), Fla. Stat. (2000) (stating that aggravated battery is a “felony of the second degree”).

      . We note that the supreme court has granted review in a case that certified conflict with Levesque. See Nesbitt v. State, 819 So.2d 993, 994 (Fla. 5th DCA 2002), review granted, 837 So.2d 411 (Fla.2003).


author: DAVIS, Judge.

text:
    Marjorie WOLFORD and Frederick Wolford, Appellants, v. Ronald Van OSTENBRIDGE and Jackie Van Ostenbridge, Appellees.
    No. 2D03-274.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.

      William E. Ruffier of Dellecker Wilson & King, P.A., Orlando, for Appellants.
    W. Scott Hamilton and James L. Price of Whitaker & Hamilton, P.A., Bradenton, for Appellees.
   DAVIS, Judge.

Marjorie and Frederick Wolford challenge the trial court’s summary final judgment entered in favor of Ronald and Jackie Van Ostenbridge in a premises liability action. We reverse because we conclude that a genuine issue of material fact remains.

These proceedings arose when Marjorie Wolford, who was sitting on a swing on the Van Ostenbridges’ front porch, was injured when the swing suddenly fell. The Wol-fords filed a two-count complaint, alleging in count one that the Van Ostenbridges, as property owners, breached the duty they owed to Marjorie Wolford as an invitee by negligently installing the porch swing that caused her injuries. Count two contained Frederick Wolford’s loss of consortium claim.

The Van Ostenbridges filed a motion for summary judgment alleging that there was no proof either that they had failed to maintain their premises in a reasonable manner or that they had notice of the dangerous condition. In opposition, the Wolfords filed the affidavit of a general contractor, who after reviewing Jackie Wolford’s deposition and pictures of the swing and the porch area, opined that the swing fell because it had been improperly installed. Specifically, the affidavit concluded that the screws used to hang the swing were too small, that the screws were improperly placed in the beam, and that the swing should have been supported with bolts and nuts rather than screws. In addition to the affidavit, the court also had before it the deposition testimony of the same general contractor.

Based on the record before it, the trial court granted the motion for summary judgment in favor of the property owners. The trial court found that there was no evidence in the record to establish that the swing was negligently installed or that the swing fell due to negligent installation. The Wolfords moved for rehearing, arguing that the court had failed to consider the affidavit and deposition of their expert witness. The trial court denied the motion for rehearing, stating that while it had considered the pleadings, depositions, and affidavits, it gave “no weight” to the affidavit or the testimony of the Wolfords’ expert. The Wolfords now challenge the final summary judgment entered pursuant to these rulings.

A property owner owes two duties to an invitee: (1) the duty to use reasonable care in maintaining the property in a reasonably safe condition; and (2) the duty to warn of dangers of which the owner has or should have knowledge and which are unknown to the invitee and cannot be discovered by the invitee through the exercise of reasonable care. Knight v. Wattman, 774 So.2d 731 (Fla. 2d DCA 2000). These are two distinct duties. An owner who creates a dangerous condition already has breached the duty to use reasonable care in maintaining the property in a reasonably safe condition regardless of the owner’s knowledge of the dangerousness of the condition. Thus, once it is determined that the owner created the danger, knowledge of that dangerousness is irrelevant. See Riles v. Robinson, 548 So.2d 295 (Fla. 4th DCA 1989) (holding that the owner’s knowledge of the dangerousness of the condition is not an issue if the condition was created by the owner); cf. Knight, 774 So.2d 731 (holding that even if the invitee has knowledge of the condition that is- equal or superior to the knowledge of the owner, thus relieving the owner of the duty to warn, the owner may still be held liable if it is shown that the owner created the condition).

The Wolfords alleged in the trial court that the Van Ostenbridges created a dangerous condition by negligently installing the swing. In support, they point to the expert’s affidavit and deposition, both of which described the installation as negligent. The trial court, however, questioned the reasonableness of this opinion based on the expert’s answers to deposition cross-examination. It was improper for the trial court to weigh the expert’s testimony; that is a function for the jury as finder of fact. See Bradford v. Bernstein, 510 So.2d 1204 (Fla. 2d DCA 1987). The mere fact that the expert testified that the swing was negligently installed creates genuine issues of material fact and renders summary judgment improper. See Hervey v. Alfonso, 650 So.2d 644 (Fla. 2d DCA 1995). Accordingly, we reverse.

Reversed and remanded for further proceedings.

FULMER, J., and DANAHY, PAUL W., Jr., Senior Judge, Concur.


text:
    Barry W. LANIER, Appellant, v. Candice LANIER, individually, and Department of Revenue o/b/o Candice Lanier, Appellees.
    No. 2D02-5735.
    District Court of Appeal of Florida, Second District.
    Oct. 3, 2003.

      Tiffany J. Lanier of Tiffany J. Lanier, P.A., Boynton Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General; and William H. Branch and Toni C. Bernstein, Assistant Attorneys General, Tallahassee, for Appellee Department of Revenue o/b/o Candice Lanier.
    Candice Lanier, pro se.
   DAVIS, Judge.

In this appeal from an order dissolving the marriage of the parties, the Husband, Barry W. Lanier, challenges the trial court’s equitable distribution scheme, its determination regarding custody of the minor children, and its order directing the Husband to pay $2255.25 per month to the Wife, Candice Lanier. We find merit in the Husband’s argument that the trial court failed to make the statutorily required written findings in support of the equitable distribution scheme and remand for the entry of such written findings. We also direct the trial court to clarify its ruling regarding custody of the children. We otherwise affirm.

The Husband correctly contends that the trial court erred in failing to follow the dictates of section 61.075(3), Florida Statutes (2002), when it entered its equitable distribution scheme without making specific findings of fact to support the distribution. That section requires the trial court in contested dissolutions to enter written findings of fact identifying and valuing marital assets from which the parties or reviewing court may discern the rationale for the distribution scheme employed. See Pignataro v. Rutledge, 841 So.2d 636 (Fla. 2d DCA 2003); Staton v. Staton, 710 So.2d 744 (Fla. 2d DCA 1998).

In the Husband’s last family law financial affidavit, filed on September 16, 2002, he listed the following marital assets: $200 in cash; $250,000 value in the marital home; a $12,000 vehicle; a $5,000 computer; $10,000 in electronics; $10,000 in china and collectibles; $25,000 in furniture; and $5,000 in tools, for a total asset value of $317,200.

In the Wife’s last family law financial affidavit, filed on January 10, 2000, she listed the following marital assets: $100 in cash on hand; $500 cash in banks; $340,000 in the marital home; $160,000 in other real estate; a $15,000 1991 Mercedes; a $3,000 Nissan Pathfinder; $30,000 in other personal property; and $105,000 in retirement plans, for a total of $653,600 in assets.

In making its equitable distribution, the trial court awarded the Husband the 1991 Nissan Pathfinder, the tools, the clothes, the sporting equipment, and the computer equipment, which amounted to $22,000 and included everything he asked for with the exception of $200 in cash. The court awarded the marital home to the Wife. However, the court did not distribute the china and collectibles, the television and electronics, or the furniture, which had a total value, according to the Husband’s valuations, of $45,000. Neither did the court equitably distribute the following items on the Wife’s financial affidavit: $500 in cash in banks; $160,000 in other real estate; the $15,000 1991 Mercedes; and $105,000 in retirement plans. It is not known what portion of the $30,000 that the Wife listed as “other personal property” included the items that the court distributed to the Husband. Because there is no transcript of the final hearing, we do not know what evidence the trial court considered in reaching its conclusions.

Because a number of the assets listed on the parties’ financial affidavits were not distributed, and because the trial court’s order failed to make the required specific findings identifying and valuing the assets, we remand for entry of such findings in accord with section 61.075(3). See Pigna-taro, 841 So.2d 636.

We also observe that the trial court’s determination regarding the custody of the two minor children is somewhat unclear. While we believe that the trial court intended to order shared parental responsibility of the children while awarding primary residential custody to the Wife, the court’s order awarded the Wife “sole custody and care of the minor children ... as the primary residential parent.” Although the trial court’s subsequent reference to “Article XI Shared Parental Responsibility Contact Guidelines, 12th Judicial Florida Circuit, 2002,” appears to support what we believe the court intended, because the actual language used is vague and may be interpreted to mean that the court intended to award the Wife sole parental responsibility, we direct the trial court to clarify its order regarding the parental responsibility and custody of the children. (Emphasis added.)

Lastly, although our review of the parties’ financial affidavits raises some questions regarding the amount of the child support order, in the absence of a transcript of the hearing we are'.not able to determine that it is in error. Accordingly, the child support order is affirmed.

Affirmed in part; reversed in part; and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.


text:
    WHITEHALL ENTERPRISES, INC., Appellant, v. 1274328 ONTARIO, INC., etc. and Luis Alvarez, Appellees.
    No. 3D03-1190.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2003.
    Gary D. Weinfeld and Neil G. Taylor, Jacksonville, for appellant.
    Nason, Yeager, Gerson, White & Lioce and Brett J. Horowitz (West Palm Beach), for appellee.
    Before SCHWARTZ, C.J., and LEVY and GODERICH, JJ.
   PER CURIAM.

After a complete review of the record herein, including the Petition and accompanying appendix, the Petition for Certio-rari is denied.

LEVY and GODERICH, JJ., concur.

SCHWARTZ, C.J., dissents.


text:
    G.W. COMPANY & SONS, INC., Wayne Frasure, Individually, and Wayne Frasure, d/b/a G.W. Company & Sons, Inc., Appellants, v. Wilson T. McCLELLAN, a/k/a Tommy McClellan, Appellee.
    No. 1D02-2571.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2003.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans & Abel, P.A., Hollywood, for Appellants.
    Frank A. Baker, Marianna, for Appellee.
   PER CURIAM.

REVERSED. See Sarkis v. Allstate Ins. Co., 863 So.2d 210, 2003 WL 22250352 (Fla. Oct. 2, 2003).

KAHN, DAVIS and PADOVANO, JJ., concur.


author: PALMER, J. SHARP, W., J.,

text:
    Sabir Abdul-Haqq YASIR, Appellant, v. Harry K. SINGLETARY, et al., Appellee.
    No. 5D02-2344.
    District Court of Appeal of Florida, Fifth District.
    Oct. 31, 2003.
    Rehearing Denied Dec. 30, 2003.

      Sabir Abdul-Haqq Yasir, Polk City, pro se.
    Charles J. Crist, Jr., Attorney General Tallahassee and Joseph H. Lee, Assistant Attorney General, Tampa, for Appellee.
   PALMER, J.

Sabir Abdul-Haqq Yasir appeals the trial court’s order denying his request to reopen a lawsuit for the purpose of obtaining a refund of copy fees. Concluding that the trial court lacked jurisdiction to reopen Yasir’s previously concluded lawsuit, we affirm.

In 1998, Sabir Abdul-Haqq Yasir filed a lawsuit in the circuit court against Harry Singletary, as head of the Florida Department of Corrections. Pursuant to section 57.085(7), Florida Statutes (1997), Yasir was required to provide the court with copies of his previous civil actions. Yasir paid $7.50 to obtain copies of those documents and then he attached them to his pleading. Yasir’s claims were adjudicated on their merits and the action was closed.

Subsequent thereto, in Mitchell v. Moore, 786 So.2d 521 (Fla.2001), the Florida Supreme Court struck down the copy requirement of section 57.085(7) as being unconstitutional, concluding that it denied certain prisoners access to the courts. The court further ruled that all inmates whose cases had been dismissed for failure to comply with the copy requirement would have two years from the date of the decision within which to file motions seeking reinstatement of their claims.

Thereafter, Yasir filed a motion to “reopen” his lawsuit against Singletary for the sole purpose of obtaining a refund of the $7.50 in copying costs he incurred. His request was denied and this appeal ensued.

The trial court would only have jurisdiction to reopen the case if, as Yasir contends, Mitchell v. Moore gave him such a right. It did not. The Mitchell case specifically applied only to those “inmates whose cases were dismissed for failure to comply with the copy requirement to file a motion seeking reinstatement.” Id. at 531. Yasir does not fall within that definition. In fact, he provided the necessary copies and made payment therefor. Accordingly, the trial court properly concluded that Ya-sir was not entitled to reopen his case.

AFFIRMED.

PLEUS, J., concurs and concurs specially.

SHARP, W., J., dissents, with opinion.

PLEUS, J., concurs and concurs specially.

De minimis non curat lex.

SHARP, W., J.,

dissenting.

I disagree the trial court lacked jurisdiction to “reopen” Yasir’s lawsuit to consider refunding the fees he spent to comply with the unconstitutional copy requirements of section 57.085(7). Yasir is unskilled in the law and so not unreasonably moved for a refund of fees in the case in which he incurred those fees. Had Yasir instead filed a declaratory judgment action seeking a determination he is entitled to the refund, the courts would have to address the issue on its merits.

Admittedly Mitchell v. Moore, 786 So.2d 521 (Fla.2001) did not address the issue of entitlement to refunds for indigent prisoners who had paid for copies and accordingly had not been barred from bringing a lawsuit. But it seems logical that if the copy requirement is found unconstitutional, an indigent prisoner would be entitled to a refund of the cost of complying with that requirement. See, e.g., Department of Revenue v. Kuhnlein, 646 So.2d 717 (Fla.1994), cert. denied, 515 U.S. 1158, 115 S.Ct. 2608, 132 L.Ed.2d 853 (1995) ($295.00 impact fee on cars purchased or titled in other states that were then registered in Florida was unconstitutional; full refund to all who had paid this illegal tax was the only clear and certain remedy); Moultrie v. Florida Department of Corrections, 496 So.2d 191 (Fla. 1st DCA 1986) (inmate had standing to challenge prison rule which provided authority for assessing damages against him for destruction of state property; if inmate prevails on his rule challenge he may be entitled to a refund or restoration of funds to his inmate account).

It is tempting to dismiss Yasir’s claim on jurisdictional grounds or to consider the sum involved de minimis. See Northern v. Nelson, 448 F.2d 1266 (9th Cir.1971). However, to an inmate with only $100.00 or less in his or her inmate account, $7.50 may not be de minimis.

The situation in which Yasir finds himself, of having been forced to pay an unconstitutional fee in order to be granted access to the courts, is one which others may also find themselves and may be a recurring problem the courts should resolve. Martinez v. Singletary, 691 So.2d 537 (Fla. 1st DCA 1997); C.M.T. v. Department of Health and Rehabilitative Services, 550 So.2d 126 (Fla. 1st DCA 1989). I would reverse and remand for Yasir to obtain a refund of those fees.

      . Section 57.085(7) of the Florida Statutes (1997) provides:
      57.085 Waiver of Prepayment of court costs and fees for indigent prisoners.—

      (7) A prisoner who has twice in the preceding 3 years been adjudicated indigent under this section, certified indigent under s. 57.081, or authorized to proceed as an indigent under 28 U.S.C. s.1915 by a federal court may not be adjudicated indigent to pursue a new suit, action, claim, proceeding, or appeal without first ob-taming leave of court. In a request for leave of court, the prisoner must provide a complete listing of each suit,- action, claim, proceeding or appeal brought by the prisoner or intervened in by the prisoner in any court or other adjudicatory forum in the proceeding 5 years. The prisoner must attach to a request for leave of court a copy of each complaint, petition, or other document purporting to commence a lawsuit and a record of disposition of the proceeding.
      (Emphasis added).

      . De minimis non curat lex" — the law does not concern itself with trifles.” Black’s Law Dictionary (7th ed.1999).


author: WOLF, C.J.

text:
    Leonard PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2085.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2003.

      Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Bryan Jordan, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

Leonard Perry raises three issues concerning his conviction and sentence for resisting an officer with violence. One issue requires reversal: whether the trial court abused its discretion by deviating from the standard jury instruction and specifically instructing the jury that “arresting Leonard Perry on a warrant constitutes a lawful execution of a legal duty.”

Two Jacksonville police officers testified that they made a traffic stop of a vehicle after observing that the vehicle had no lights on. After the driver exited the car, a struggle ensued, and the driver fled the scene. The police searched the vehicle and found rental paperwork in appellant’s name in the glove compartment. Shortly thereafter, appellant appeared on the scene and inquired about the release of his car. The officers indicated that he may be able to get his car released if he could locate the driver. They allowed appellant to leave. • While appellant was gone, the officers conducted a records check on appellant and discovered an outstanding warrant for him. When appellant returned, the officers advised appellant that he had an outstanding warrant and that they would arrest him. The officers testified that while one officer was handcuffing appellant, the other officer patted him down and discovered “a thick wad of money.” Both officers testified that appellant became violent after the money was removed from appellant’s pocket. According to the officers, appellant began punching and kicking and had to be wrestled to the ground. Part of the defense at trial was that the police were not arresting appellant, but rather they were taking out their frustration on appellant because the driver had escaped. The defense presented four witnesses who testified that appellant did not strike, punch, or kick the officers.

To prove a violation of section 843.01, Resisting Officer with Violence to His or Her Person, the State was required to prove without a reasonable doubt three elements:

1. The defendant knowingly and willfully resisted, obstructed, and/or opposed an officer by offering to do violence or doing violence to the officer;
2. At the time the officer was engaged in the execution of legal process or lawful execution of a legal duty; and
3. At the time the officer was an officer as defined by statute.

Section 843.01, Fla. Stat. (2001); Fla. Std. Jury Instr. (Crim.) 21.1. (2001).

Regarding the second element, the standard jury instruction for Resisting Arrest with Violence states:

The court further instructs you that (read duty being performed from charge) constitutes [execution of legal process] [lawful execution of a legal duty]. In giving this instruction, refer only to the type of duty or legal process that was being performed, e.g., making an arrest, serving a subpoena, serving a domestic violence order. See Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992).

This instruction is valid as long as the jury understands that it must decide that the officers were in fact performing the duty described. See State v. Anderson, 639 So.2d 609 (Fla.1994). In Anderson, the supreme court held that when the defendant maintains that the arrest was unlawful and requests that the jury be instructed on that defense, “an instruction should be given to insure that the jury understands that it must decide the issue.” Id. at 610.

Here, the jury was not allowed to determine whether the police were arresting appellant. Contrary to the last portion of the instruction regarding the description of only the legal process or duty being performed, the trial court instructed the jury in the following manner: Appellant argues that mentioning that the police were specifically arresting him necessitates a new trial, citing Hierro v. State, 608 So.2d 912 (Fla. 3d DCA 1992).

The court further instructs you that arresting Leonard Perry on a warrant constitutes a lawful execution of a legal duty.

In Hierro, although the charge was resisting arrest without violence pursuant to section 824.02, Florida Statutes, rather than with violence pursuant to section 843.01 as here, the court was faced with the same type of instruction. In reversing for new trial, the court in Hierro found that the trial court had erred by specifically referring to the defendant:

The court used the standard jury instruction for this offense. The court gave the final sentence of the Standard Jury Instruction as follows: “The court further instructs you that the arrest and/or a detention of the defendant constitutes a lawful execution of a legal duty.” By stating that the arrest of this defendant constituted the lawful execution of a legal duty, the trial court in effect directed a verdict for the State on that point.
The Standard Jury Instruction calls for the court to describe the “duty being performed” in generic terms without making specific reference to the defendant. That then leaves for the jury the factual determination whether the legal duty was performed with respect to this particular defendant. By instructing in this case that “the arrest and/or a detention of the defendant constitutes a lawful execution of a legal duty” that issue was impermissibly taken from the jury.

Id. at 914-915 (citations omitted; emphasis in original).

Similarly in Kyle v. State, 650 So.2d 127 (Fla. 4th DCA 1995), the trial court gave the following instruction on a resisting arrest charge: “And the court further instructs you that the arrest and detention of Cecil German [a/k/a Timothy Kyle] constitutes the lawful execution of a legal duty.” Id. at 128. The appellate court noted, “[I]t is error to give the instruction in a case-specific manner, as it was given here, because the instruction in effect takes from the jury the issue of the validity of the arrest.” Id.

The State argues that any error was harmless because section 776.051(1), Florida Statutes, makes it unlawful to resist an arrest with force even if the arrest is illegal. See Nesmith v. State, 616 So.2d 170, 171-172 (Fla. 2d DCA 1993). Therefore, citing Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999), the State argues that it was not required to prove the second element and there was no harm in naming the defendant in the instruction regarding this element. In Taylor, however, the court did not address whether a trial court may deviate or eliminate the jury instruction regarding the element of “lawful execution of duty,” but rather it addressed whether the appellant was entitled to use the illegality of the police action as a defense. Therefore, Taylor does not control as to the issue before us. See also Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003) (affirming conviction, holding officers’ improper strip search could not be defense to resisting with violence).

In cases of resisting arrest with violence the State need not prove the legality of an arrest, only that an arrest was in fact taking place. Here, there is an issue as to whether the officers were arresting appellant or acting in any legal capacity. In fact, this is one of the major arguments made by the defense. Although, as the State argues, it was unnecessary to prove that the officers were engaged in the performance of a lawful duty in arresting appellant, that argument begs the question of whether the officers were in fact arresting appellant at all. As in Hierro, the nonstandard instruction takes the issue away from the jury.

We, therefore, reverse and remand for a new trial.

BROWNING and HAWKES, JJ., concur.

      . The jury acquitted appellant of two counts of battery against a police officer.

      . 843.01. Resisting officer with violence to his or her person
      Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9) ... or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

      . Section 776.051, Use of force in resisting or making an arrest; prohibition, states in relevant part “(1) A person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.”

      . In fact, in Taylor, this court found that the State had failed to prove that the officer who was allegedly attacked was engaged in the performance of a legal duty at the time of the alleged offense, thereby reconfirming that execution of a legal duty is still an element of the charge to be proven.


text:
    Karen L. UTTERBACK a/k/a Karen Furrey, Appellant, v. Thomas UTTERBACK, Appellee.
    No. 3D03-399.
    District Court of Appeal of Florida, Third District.
    Nov. 12, 2003.
    Hall, David and Joseph, P.A., and Andrew C. Hall, and Allen Joseph, and Sharon Calix Tiffany, Miami, for appellant.

      Carman, Beauchamp & Sang, P.A., Deerfield Beach, and Rhea P. Grossman, Miami, for appellee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

This is an appeal from a post-judgment order denying the former wife’s second amended motion for contempt and amended motion for sanctions. We affirm.

The record reflects that the trial court correctly determined that the former husband is responsible only for the tax liability on the $3000 a month alimony, without consideration of any additional income received by the former wife. See Rubio v. Rubio, 576 So.2d 337, 338 (Fla. 2d DCA 1991)(finding that former husband’s agreement to pay taxes derived from former wife’s receipt of alimony did not require husband to pay taxes on rate resulting from wife’s employment and investment income, rather, husband could calculate tax due on alimony as if wife had no other income); Rubio v. Rubio, 347 So.2d 1093, 1095-96 (Fla. 2d DCA 1977)(same). Furthermore, we find that the wife’s issue of “gross up” taxes was not adequately presented to the trial court, and thus not preserved for appeal. See Castor v. State, 365 So.2d 701, 703 (Fla.1978) (finding that reviewing courts will not consider points raised for first time on'appeal); Hoffman v. Hoffman, 793 So.2d 128, 131 (Fla. 4th DCA 2001) (holding that appellate court cannot consider issue on appeal that was not argued below or raised by motion for rehearing).

Accordingly, we affirm.