author: ANSTEAD, C.J. WELLS, J.,

text:
    Brittany WIGGINS, etc., et al., Petitioners, v. ESTATE OF April Brown WRIGHT, Respondent.
    No. SC01-1713.
    Supreme Court of Florida.
    May 22, 2003.
    Rehearing Denied July 16, 2003.

      Linda L. Schwichtenberg, Orlando, FL, for Petitioners.
    Jackson 0. Brownlee of Beusse, Brown-lee, Bowdoin & Wolter, P.A., Orlando, FL, for Respondent.
   ANSTEAD, C.J.

We have for review Wiggins v. Estate of Wright, 786 So.2d 1247 (Fla. 5th DCA 2001), which expressly and directly conflicts with the decision in In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Because we agree with Judge Sawaya’s dissenting opinion in Wiggins concerning the method of allocating attorneys’ fees to the attorneys representing separate beneficiaries in a wrongful death action, we quash the decision of the Fifth District Court of Appeal.

PROCEEDINGS TO DATE

Upon April Wright’s death, she was survived by her spouse, Walter C. Wright, two minor children from that marriage, and her two minor children from a previous marriage. See Wiggins v. Estate of Wright, 786 So.2d 1247, 1248 (Fla. 5th DCA 2001). As the “potential personal representative” of April’s estate, Walter retained attorney Jack Nichols on a contingency fee basis to institute a wrongful death claim on behalf of April’s survivors and her estate, against the hospital where April died. See id. Once he was appointed as the personal representative, Walter signed a new retainer agreement with Nichols, both in his capacity as the parent of his two minor children who survived April’s death, and as the surviving spouse and personal representative of April’s estate. See id. At the same time, however, April’s two other surviving minor children from her prior marriage retained attorney Linda L. Schwichtenberg as their counsel to look after their interests as surviving beneficiaries in the wrongful death claim. See id.

Thereafter, Nichols negotiated a settlement of the estate’s claim with the hospital, and the settlement was approved by the trial court and all parties, including the two minor children from the prior marriage represented by Schwichtenberg. See id. After the settlement was approved and paid by the hospital, Nichols proposed a distribution plan for the proceeds to be distributed that favored Walter Wright and his two children, and did not compensate the children from the prior marriage on a par with the other children. See id. Schwichtenberg, acting on behalf of her clients, opposed this plan. Upon hearing, the trial court rejected Nichols’ plan, and instead ordered that the survivors receive equal shares of the settlement proceeds. See id. at 1249.

Thereafter, Nichols sought and the trial court awarded Nichols a full fee based upon his agreement with Wright and calculated as a percentage of the entire settlement paid to the estate for all the beneficiaries. See id. at 1248. Schwichtenberg also applied to the trial court for a fee under her contingency contract with the children from the prior marriage, claiming that a portion of the fee awarded to Nichols should be awarded to her to satisfy her clients’ obligations to pay her. See id. However, the trial court determined that Schwichtenberg’s fee should come solely from her clients out of their net share of the proceeds as reduced by the payment of Nichols’ fee. See id.

On review of the trial court’s decision on attorney’s fees, the Fifth District Court of Appeal affirmed the trial court’s ruling, holding:

Because we find that Nichols represented the estate, and not the individual beneficiaries thereto, in handling the wrongful death claim, we agree with the trial court that Nichols earned his contingency fee before any potential conflict arose and is indeed entitled to the total fee agreed to by the estate. We also agree with the lower court that although Schwichtenberg performed a valuable service to her clients by assuring them a greater share of the distribution than they would have otherwise received, this was a service personal to such beneficiaries and should be paid for by them. We believe that is the intent of section 768.26, Florida Statutes:
Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.
Clearly this statute contemplates that the expenses of litigation shall be paid before there is a distribution to anyone and that services performed for an individual beneficiary must be paid by that beneficiary.

Id. at 1249. The district court rejected the claim of Schwichtenberg and her clients that they should not have to pay fees to both the estate lawyer and their own lawyer in the manner determined by the trial court. Judge Sawaya dissented, pointing out that Schwichtenberg had continuously represented her clients’ interests in the wrongful death action, and had successfully objected to Nichols’ proposed settlement scheme. See Wiggins, 786 So.2d at 1252 (Sawaya, J., dissenting).

Following the Fifth District’s affir-mance, Schwichtenberg’s clients, the petitioners, now seek review in this Court, citing conflict between the Fifth District’s decision and cases decided by the Fourth District that were relied upon by Judge Sawaya in his dissent.

WRONGFUL DEATH CLAIMS

Florida’s wrongful death statute focuses on the loss suffered by survivors of the decedent and creates a separate entitlement to damages for each survivor. How-eyer, the survivors cannot bring separate legal actions. Rather, by statute, the personal representative is the only party with standing to bring a wrongful death suit on behalf of the estate and the survivors. See § 768.20, Fla. Stat. (1999). Under the le--' gal procedure set out in the wrongful death. statute, all survivors and claimants are required to participate in a single legal action to be filed by the estate on behalf of all the survivors. Upon trial, damages are to be apportioned to each survivor in the verdict form.

Catapane

In the case of In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000), the decedent’s survivors in a wrongful death action included his wife, who was appointed the personal representative, and a daughter, Nadine, from a prior marriage. See id. at 10. The wife hired counsel to" pursue a wrongful death claim for the estate and all of the survivors, while the surviving daughter, Nadine, hired separate counsel to represent her interests in the claim. See id. The law firms each had a one-third contingency fee agreement with their clients that provided for attorney’s fees in the amount of one-third of any recovery obtained for the client. See id.

When the uninsured motorist insurer offered its limits of $100,000 and the liability insurer offered its limits of $30,000 to settle the claim, it became unnecessary for an action to be prosecuted further. See id. Thereafter, the trial court determined an apportionment of the recovery so that the wife would get $35,000 and Nadine would receive $95,000 of the settlement proceeds. See id. The trial court further determined that the two separate law firms involved would each receive one-third of their clients’ separate recoveries, respectively, based upon their individual fee agreements. See id.

The wife’s attorneys appealed, claiming that as counsel' for the estate, they were entitled to their full one-third contingency fee on the entire settlement paid to the estate, including the recovery for Nadine. See id.Upon review, the Fourth District agreed in part with this claim, but held that the wife’s counsel’s fee recovery must be adjusted to allow a share of the fee for the daughter’s counsel: ■

We reverse and remand for the trial court to reconsider the award of attorney’s fees to David & French consistent with our holding that they were entitled, as counsel for the personal representative, to be compensated out of the total recovery of $130,000. Because of their conflict of interest on damages, however, their fee which will come out of Nadine’s portion of the recovery shall be reduced by an amount necessary to compensate Lytal, Reiter for representing Nadine on damages. That fee would be small compared to David & French’s fee, and the total of Nadine’s fees cannot exceed a fee authorized by rule 4-1.5.

See id. at 11-12 (footnotes omitted). The district court sent the case back to the trial court for a hearing to determine fees based upon these instructions.

We agree with the Fourth District’s Ca-tapane analysis, and conclude that the Wiggins opinion may require the non-personal representative survivors to pay a fee in excess of those allowed by rule 4-1.5 of the Rules Regulating the Florida Bar and it ignores the potential conflict of interest that is created when separate survivors hire separate counsel to prosecute a claim for the damages that each is entitled to under the statute. See § 768.22, Fla. Stat. (1999) (damages for each survivor to be stated separately). On the other hand, the Fourth District’s attorneys’ fees scheme as set forth in Catapane acknowledges the conflict and allocates attorneys’ fees from the estate (and ultimately all parties) once, and distributes them proportionately by the amount of work that the attorneys do on (1) the lawsuit brought on behalf of the estate, and (2) the apportionment proceedings.

In many instances the survivors entitled to compensation in a wrongful death action may be in agreement both as to prosecuting a wrongful death claim, and in the distribution of any recovery. When this is the case, this procedure will work well, especially when all of the survivors have a commonality of interest and a single attorney can represent those interests. This may often be the case, for example, when a parent-spouse is killed and the surviving spouse and children are represented by the same attorney.

However, when the survivors do not have a commonality of interest, this procedure may also sometimes produce conflict about the resolution of the claim, apportionment of damages to the survivors, and the award of attorneys’ fees. Under the wrongful death act, survivors of the deceased are entitled to damages caused to each of them by the wrongful loss of the decedent. Further, regardless of whether the court action must be filed in the name of the estate, survivors are still entitled to be represented by counsel of their choice.

The survivors here were represented by separate attorneys. Nichols represented the estate and three of the survivors, while Schwichtenberg represented two of the survivors. Based upon the contingent fee agreements with their attorneys, each of those survivors could reasonably contemplate the payment of a fee out of their respective recoveries. But they could hardly contemplate having to pay a “double” fee, due the first time when the gross settlement amount was received, and a second time when their actual portion of the recovery was determined.

Ordinarily, a single attorney simply could not fairly represent, absent an express agreement, multiple survivors’ competing interests. In addition, a claim could not be properly evaluated without an evaluation of its separate components, i.e., the individual claims of the surviving, and usually competing, beneficiaries. Indeed, that is what a jury would have to do if there was no settlement.

In Wiggins, the Fifth District concluded that “Nichols earned his contingency fee before any potential conflict arose.” 786 So.2d at 1249. However, it was apparent from the outset that all of the survivors were entitled to compensation, including the two children from the previous marriage represented by Schwichtenberg, and their respective claims evaluated prior to settlement. Yet Nichols represented the surviving and competing survivors from the outset without any express agreement. While Nichols obviously acted in good faith to secure the largest possible total settlement, the potential for conflict between the competing interests of the individual beneficiaries was ever present.

In this case it appears that both attorneys rendered services to the survivors. Further, while it is unclear what part attorney Schwichtenberg played in securing the overall settlement, it is apparent that she rendered valuable services to her clients in securing a greater portion of the gross settlement for their benefit. In his dissent, Judge Sawaya noted that due in large part to Schwichtenberg’s advocacy, the trial court rejected Nichols’ proposal for distribution and ordered that the decedent’s four children receive twenty percent each, a decision which Wright unsuccessfully appealed. See 786 So.2d at 1252 (Sawaya, J., dissenting). Judge Sawaya concluded:

[TJhrough the representation and efforts of Schwichtenberg, her clients recovered approximately twice the amount proposed by Wright.
As I have indicated, in my opinion, these facts establish that a conflict of interest developed over the allotment of the proceeds of the settlement amount. I, therefore, believe that the decisions in Perris v. Estate of Perris, 764 So.2d 870 (Fla. 4th DCA 2000) and [In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000)] should control the disposition of the issue concerning the allotment of attorneys fees between Nichols and Schwichtenberg. Application of the formula adopted in Catapane would obviously allot the larger portion of the fee to Nichols, which he so rightly deserves. Equally important, this formula would allow Schwichtenberg to share in a portion of the fee which, in my view, she deserves.

Id. (Sawaya, J., dissenting). While Sehwichtenberg was advocating for her clients, it also appears that, once the settlement for the estate was secured, Nichols openly advocated only for Wright, as well as Wright’s two children, in the division of the settlement. Because Nichols could not have represented the other survivors in the apportionment proceedings without their consent pursuant to Rule Regulating the Florida Bar 4-1.7(a), he would not be entitled to a fee on their portions of the recovery. On the other hand, if Schwichtenberg’s services' were limited to securing an increase in her clients’ recovery over that proposed by Nichols, then her fee may have to be adjusted accordingly.

Further, neither Nichols nor Schwieht-enberg is entitled to receive payment that exceeds the maximum contingent fee permitted by Rule Regulating the Florida Bar 4-1.5. As the Fourth District noted in Ca-tapane, attorneys’ fees may exceed the schedule in rule 4-1.5 only with prior court approval. See R. Regulating Fla. Bar 4-1.5(f); Catapane, 759 So.2d at 12 n. 8. As noted by the Fourth District in Catapane:

If David & French were allowed the maximum fee under rule 4-1.5 while their conflict of interest required Nadine to hire her own counsel on damages, Nadine would be exposed to having to pay a fee in excess of that allowed by rule 4-15. Because David & French could not represent Nadine on damages, they are not entitled to their full fee on Nadine’s portion of the recovery.

759 So.2d at 11. See R. Regulating Fla. Bar 4-1.7. On the other hand, it may well be that Nichols is entitled to a fee larger than just a percentage of the recovery apportioned to his client-survivors if it can be demonstrated that his efforts played a greater role in securing the total settlement.

CONCLUSION

When survivors have competing claims, and are represented by separate attorneys, awarding attorneys’ fees from a wrongful death suit in a manner commensurate with the attorneys’ work properly provides for proportional payment of attorneys’ fees by all survivors, out of their respective awards. For example, if there are two competing survivors represented by separate attorneys throughout the litigation who successfully prosecute a claim to judgment, the fees should ordinarily be awarded out of the respective recoveries. This will always be subject to the caveat that where it can be demonstrated that one attorney played a greater role in securing the total award, a larger fee may be proper. In no instance, however, should a survivor be penalized for hiring separate counsel by having to pay a fee for recovery of the same amount twice.

We agree with and approve of the Cata-pane method of allocating fees, whereby a trial court determines the attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.

Accordingly, we quash the Fifth District’s decision in Wiggins, and approve of the Fourth District’s holding in Catapane. We remand this cause to the district court for further proceedings in accord herewith.

It is so ordered.

PARIENTE, LEWIS, QUINCE and CANTERO, JJ., and SHAW, Senior Justice, concur.

WELLS, J., concurs with an opinion.

WELLS, J.,

concurring.

I concur with the majority opinion. I write to express my belief that this decision is required by the Rules Regulating the Florida Bar.

It is fundamental to a proper adherence to rule 4.1-5 that when an estate pays a contingency fee, the maximum contingency fee paid out of funds recovered by the estate be in accord with rule 4.1-5(f). This includes funds which flow through the estate to the individual beneficiaries. Therefore, regardless of how many beneficiaries there are or who is the beneficiary of the funds which can be recovered by an estate for wrongful death, the contingency fee amount agreed to by the estate becomes the fund for the payment of all attorney fees which any attorney is entitled to receive regardless of whether the attorney represents the estate or an individual beneficiary or both. In sum, the percentage amounts set out in rule 4.1-5 are the cap for an attorney-fee fund out of which the total fees of the attorney for the estate and the attorneys for the beneficiaries are to be paid for services rendered in respect to obtaining a wrongful death claim recovery.

The allocation, then, of the amount which each beneficiary is to bear in feés should usually be calculated on a pro-rata basis formula of the total amount of recovery by the estate divided by the amount recovered for the individual beneficiary after deducting from the total amount of the estate’s recovery the attorney-fee fund plus costs. However, there are a variety of cases in which a simple pro-rata division of fees among beneficiaries would be inequitable. Thus, the trial court has the authority to divide the burden of the attorney fees among the beneficiaries other than by a straight calculation of the amount recovered by the estate divided by the amount for the individual beneficiary when there is record support for such a division. For example, there are instances in which counsel for one beneficiary provides a service which assists all beneficiaries in enhancing a recovery or assists a beneficiary who is not that attorney’s client in enhancing that beneficiary’s recovery and the trial court must have the flexibility of 'havirig all beneficiaries pay their fair share for those services.

In respect to the division of attorney fees among the attorneys, the trial court should do this using the factors set out in rule 4 — 1.5(b)-(c). In making this apportionment, the trial court is to take 'into consideration as a significant factor the time, skill, and effort of the attorney or attorneys in the obtaining of the recovery of the gross amount recovered for the estate, including all beneficiaries of the estate. However, in the variety of situations in wrongful death cases, trial judges have the- latitude to consider many other factors. There are cases in which the time, skill, and effort expended in the division of the wrongful death funds, once recovered by the estate, are as time consuming and as legally complicated or more so than the recovery of the total amount for the estate. This often happens when the amount which can be recovered from the tortfeasors is limited to an insurance policy which has limits' that are low in comparison to the wrongful death damages. In such cases, in determining the division of attorney fees among the attorneys, the trial judge should give weight to the time, skill, and complication of the division of the estate funds as well as weight to the obtaining of the gross amount for the estate.

      . Rule 4-1.5 provides in part:
      (f) Contingent Fees. As to contingent fees:
      (1) A fee may be contingent on the outcome of the matter for which the service is rendered, except in a matter in which a contingent fee is prohibited by subdivision (f)(3) or by law. A contingent fee agreement shall be in writing and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the lawyer in the event of settlement, trial, or appeal, litigation and other expenses to be deducted from the recovery, and whether such expenses are to be deducted before or after the contingent fee is calculated. Upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the outcome of the matter and, if there is a recovery, showing the remittance to the client and the method of its determination.
      (2) Every lawyer who accepts a retainer or enters into an agreement, express or implied, for compensation for services rendered or to be rendered in any action, claim, or proceeding whereby the lawyer's compensation is to be dependent or contingent in whole or in part upon the successful prosecution or settlement thereof shall do so only where such fee arrangement is reduced to a written contract, signed by the client, and by a lawyer for the lawyer or for the law firm representing the client. No lawyer or firm may participate in the fee without the consent of the client in writing. Each participating lawyer or law firm shall sign the contract with the client and shall agree to assume joint legal responsibility to the client for the performance of the services in question as if each were partners of the other lawyer or law firm involved. The client shall be furnished with a copy of the signed contract and any subsequent notices or consents. All provisions of this rule shall apply to such fee contracts.
      (D) As to lawyers not in the same firm, a division of any fee within subdivision (f)(4) shall be on the following basis:
      (i) To the lawyer assuming primary responsibility for the legal services on behalf of the client, a minimum of 75% of the total fee.
      (ii) To the lawyer assuming secondary responsibility for the legal services on behalf of the client, a maximum of 25% of the total fee. Any fee in excess of 25% shall be presumed to be clearly excessive.
      (iii)The 25% limitation shall not apply to those cases in which 2 or more lawyers or firms accept substantially equal active participation in the providing of legal services. In such circumstances counsel shall apply to the court in which the matter would be filed, if litigation is necessary, or if such court will not accept jurisdiction for the fee division, the circuit court wherein the cause of action arose, for authorization of the fee division in excess of 25%, based upon a sworn petition signed by all counsel that shall disclose in detail those services to be performed. The application for authorization of such a contract may be filed as a separate proceeding before suit or simultaneously with the filing of a complaint, or within 10 days of execution of a contract for division of fees when new counsel is engaged. Proceedings thereon may occur before service of process on any party and this aspect of the file may be sealed. Authorization of such contract shall not bar subsequent inquiry as to whether the fee actually claimed or charged is clearly excessive. An application under this subdivision shall contain a certificate showing service on the client and The Florida Bar. Counsel may proceed with representation of the client pending court approval.

      . In Perris v. Estate of Perris, 764 So.2d 870 (Fla. 4th DCA 2000), the Fourth District followed its holding in Catapane.

      . See Wright v. Wiggins, 751 So.2d 598 (Fla. 5th DCA 2000).

      . Costs are also often complicated in that some beneficiaries are required to expend costs to prove individual claims, and there are disputes as to whether those costs were reasonable and necessary for the pursuit of their individual claims.


source: Caselaw Access Project

author: PARIENTE, J. WELLS, J.,

license: Public Domain

text:
    Johnny E. BRANNON, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-1538.
    Supreme Court of Florida.
    June 12, 2003.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Second Judicial Circuit, Tallahassee, Florida, for Petitioner.
    Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Trisha E. Meggs, Assistant Attorney General, Tallahassee, Florida, for Respondent.
   PARIENTE, J.

We have for review Brannon v. State, 791 So.2d 1154 (Fla. 1st DCA 2001), in which the district court certified the following two questions of great public importance:

Whether the concept of fundamental sentencing error, as discussed in Maddox v. State, 760 So.2d 89 (Fla.2000), applies to defendants who could have availed themselves of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure S. 111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.1k0, and 9.600, 761 So.2d 1015 (Fla.1999)?
Where the district court previously ruled that a sentencing issue is fundamental error, the initial brief was filed after the effective date of rule 3.800(b)(2), Florida Rules of Criminal Procedure, but before the Florida Supreme Court decided Maddox v. State, does Maddox preclude the district court from ruling on the issue as a matter of fundamental error?

Id. at 1156. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons that follow, we answer the first certified question in the negative, with the exception of fundamental error arising from the facial unconstitutionality of a sentencing statute, as further explained herein; answer the second certified question in the affirmative; and approve the decision below.

Brannon was sentenced as a habitual offender for possession of cocaine with intent to sell and for violation of probation on another offense. The legality of his sentences was not tested in the trial court, either by objection when the sentences were imposed or by subsequent motion under Florida Rule of Criminal Procedure 3.800(b). Brannon took a direct appeal and filed an initial brief after the effective date of the enactment of Florida Rule of Criminal Procedure 3.800(b)(2) but before our decision in Maddox v. State, 760 So.2d 89 (Fla.2000). In his brief, Brannon asserted that the trial court erred in imposing the habitual offender sanctions. The district court declined to address the sentencing issues because they were unpre-served. See Brannon, 791 So.2d at 1155. The court denied Brannon’s motion for rehearing, but certified the questions of great public importance. See id. at 1155— 56.

The essential issue in this case is the status of fundamental sentencing error following our adoption of rule 3.800(b)(2), which authorizes a party in a criminal appeal to raise a sentencing error in the trial court in a motion filed before the party’s first brief in the appeal, and our decision in Maddox, in which we defined a window period for presenting unpreserved, fundamental sentencing errors on appeal. The impetus for the adoption of both rule 3.800(b)(1), which authorizes motions to correct sentencing error before an appeal, and 3.800(b)(2), which authorizes such motions during an appeal, was the enactment of the Criminal Appeals Reform Act of 1996 (hereinafter CARA). In Maddox, we recognized that the goal of CARA was “to ensure that all claims of error [were] raised and resolved at the first opportunity.” 760 So.2d at 95 (quoting § 924.051(8), Fla. Stat. (Supp.1996)). In adopting rule 3.800(b)(2), we stated our expectation that “these amendments will provide an effective, and hopefully more ‘failsafe,’ procedural mechanism through which defendants may present their sentencing errors to the trial court and thereby preserve them for appellate review.” Amendments to Florida Rules of Criminal Procedure 3.111(e) & 3.800 & Florida Rules of Appellate Procedure 9.020(h), 9.14,0, & 9.600, 761 So.2d 1015,1017-18 (Fla.2000) (hereinafter Amendments II) . We explained:

The most important change in the new rule is that it significantly expands the period in which a motion to correct a sentencing error can be filed in the trial court. As with the current rule, rule 3.800(b)(1) will allow a motion to correct a sentencing error to be filed in the trial court during the time allowed for the filing of a notice of appeal. However, under the new rule 3.800(b)(2), if a notice of appeal has been filed, a motion to correct a sentencing error can also be filed in the trial court at any time until the first appellate brief is filed. The deadline for filing the first appellate brief is then extended until ten days after the clerk of the circuit court transmits the supplemental record from the proceedings held on the motion to correct the sentencing error, which includes the motion, the order, any amended sentence, and the transcript if designated.
Thus, an advantage of this amendment is that it mil give appellate counsel, unth expertise in detecting sentencing errors, the opportunity to identify any sentencing errors and a method to correct these errors and preserve them for appeal. Unless the motion to correct the sentencing error states that appellate counsel will represent the mov-ant in the trial court, trial counsel will represent the defendant. If the State files the motion, trial counsel will represent the defendant.
Another advantage of the rule is that it requires the movant to specifically identify the alleged sentencing error and propose how the trial court should correct the error. The rule further requires a response within fifteen days either admitting or denying the sentencing error. In many cases, we anticipate that clear errors mil be corrected by agreement of the parties, thus eliminating the necessity for resolution by the appellate court and minimizing the involvement of the trial court. In appeals involving only the issue of a sentencing error, this resolution would allow for dismissal of the appeal after the error has been corrected.
For those sentencing errors that cannot be resolved by the good-faith cooperation of the parties, subdivision 3.800(b)(1)(B) provides the time limits for the trial court to dispose of the motion so as to minimize any delays in the appellate process. Unless the trial court determines that the motion can be resolved as a matter of law, the trial court must hold a calendar call within twenty days after the motion is filed to either rule on the motion ■ or determine the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set within twenty days of the calendar call. However, the trial court must rule on the motion within sixty days of filing or it is deemed denied. The comments to the proposed rule state that “trial courts and counsel are strongly encouraged to cooperate to resolve these motions as expeditiously as possible because they delay the appellate process.” Trial courts thus have the opportunity to address and correct sentencing errors, which might eliminate the need for an appeal in many cases and also reduce the number of postconviction motions related to sentencing and appeals therefrom.
Any delay to the appellate process caused by these amendments will be more than offset by the fact that the parties will now be given a workable procedure to correct these sentencing errors in the trial court before the appeal and to preserve these errors for appellate review. This early correction of these sentencing errors will further the goal of judicial efficiency as well as ensure the integrity of the judicial process.

Id. at 1018-19 (emphasis supplied). Lastly, we stated that the amendments “shall become effective immediately and shall also apply to cases pending on appeal.” Id. at 1020.

In Maddox, which was issued after Amendments II, we made clear that the window period for raising unpreserved, fundamental sentencing errors on appeal was intended to apply only to those defendants who were unable to take advantage of rule 3.800(b)(2):

We anticipate that the amendments to rule 3.800(b) recently promulgated by this Court in [Amendments II ] should eliminate the problem of unpre-served sentencing errors raised on direct appeal because the time in which a defendant can file a motion to correct a sentencing error in the trial court is expanded to the time the first appellate brief is filed. However, we must still address the conflict issue for those non-capital defendants whose appeals fall into the window period between the effective date of [CARA] and the effective date of our recent amendment to rule 3.800 in Amendments II.

760 So.2d at 94 (footnote omitted) (emphasis supplied). We determined that the window for raising unpreserved, fundamental sentencing errors closed with the issuance of the opinion in Amendments II. See id. at 110.

In this case, Brannon did not avail himself of the opportunity under rule 3.800(b)(2) to raise the unpreserved sentencing errors in the trial court before presenting them in his direct appeal. He filed the initial brief in the appeal from his judgment and sentence on February 10, 2001, more than a year after the window for raising unpreserved sentencing errors on appeal closed on November 12, 1999, with the adoption of rule 3.800(b)(2). See Amendments II, 761 So.2d at 1020 (“[T]he amendments ... shall become effective immediately and shall also apply to cases pending on appeal.”); Maddox, 760 So.2d at 110 (defining the window period for raising serious, unpreserved, fundamental sentencing errors on appeal as “between the enactment of the Criminal Appeal Reform Act and this Court’s recent opinion in Amendments II”). Thus, the intent of our adoption of rule 3.800(b)(2) and the effect of Maddox is to preclude litigants such as Brannon from raising these claims of sentencing error for the first time on appeal. Accordingly, we hold that for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.

In so holding, we must distinguish our decision in Harvey v. State, 848 So.2d 1060 (Fla.2003). There, we held that a defendant who failed to raise a Heggs challenge via rule 3.800(b) after the Maddox window closed could nonetheless successfully challenge his sentence on direct appeal to the First District. See Harvey, 848 So.2d at 1062. Noting that the initial brief in the direct appeal was filed before our decision in Heggs and at a time when the First District had upheld the sentencing law subsequently declared invalid in Heggs, we concluded that “Harvey had no sentencing error to complain of’ at that time. Id., 848 So.2d at 1063. We grounded our decision in “the interests of justice, judicial efficiency, and the unique circumstances of this case.” Id., 848 So.2d at 1064.

In Harvey, a rule 3.800(b)(2) motion, which “must be served before the party’s first brief is served,” would have been futile because at the time that appellate counsel filed the first brief in the case, the trial judge would have been required to deny the motion in accord with then-controlling First District precedent. See id, 848 So.2d at 1063; see also Pardo v. State, 596 So.2d 665, 667 (Fla.1992) (“[I]f the district court of the district in which the trial court is located has decided the issue, the trial court is bound to follow it.”). In comparison, the two sentencing errors raised by Brannon were not foreclosed by controlling precedent at the point that appellate counsel filed the initial brief in this case, and could have been resolved at the trial court level rather than on appeal.

Moreover, considering the interests of justice, we perceive a significant difference between imposition of a sentence pursuant to an unconstitutional enactment “void in its entirety,” Heggs, 759 So.2d at 630, and the alleged errors in this case concerning whether a habitual offender sentence is authorized for a particular offense and whether a habitual offender sentence may be imposed initially upon violation of probation. In Maddox, we held that improper imposition of a habitual offender sentence contrary to specific statutory requirements was one of the sentencing errors that could be raised in the window period between the effective date of CARA and the adoption of rule 3.800(b)(2). See 760 So.2d at 102. However, we also cautioned that “for those defendants who had available the procedural mechanism of our recently amended rule 3.800(b), we anticipate that the interests of justice should be served by the ability of appellate counsel to first raise the issues in the trial court prior to filing the first appellate brief.” Id. at 98. None of the types of sentencing error that we held cognizable when raised initially on appeal during the Maddox window included a facial challenge to the constitutionality of a sentencing statute, as in Heggs and Harvey.

Because the alleged sentencing errors in this case are fundamentally different from the constitutional basis for the claim in Harvey, we have treated the certified questions in the two cases differently. In Harvey, the district court certified the following questions, the first of which is identical to the first of the two certified questions in this case:

Whether the concept of fundamental sentencing error, as discussed in Maddox v. State, 760 So.2d 89 (Fla.2000), applies to defendants who could have availed themselves of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h). 9.110. and 9.600, 761 So.2d 1015 (Fla.1999).
Whether an appellant in the First District Court of Appeal, who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h). 9. HO. and 9.600, 761 So.2d 1015 (Fla.1999), had an obligation to raise his single subject challenge to the 1995 sentencing guidelines in the trial court, despite the existence of adverse precedent in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), in order to later obtain appellate relief based on Heggs v. State, 759 So.2d 620 (Fla.2000).

Harvey v. State, 786 So.2d 28, 32-33 (Fla. 1st DCA 2001). We combined these two questions into one:

Whether an appellant in the First District Court of Appeal who could have availed himself of the procedural mechanism of the most recent amendments to Florida Rule of Criminal Procedure 3.800(b) set forth in Amendments to Florida Rules of Criminal Procedure 3.111(e) and 3.800 and Florida Rules of Appellate Procedure 9.020(h), 9.11.0, and 9.600, 761 So.2d 1015 (Fla.1999), may raise his single subject challenge to chapter 95-184, Laws of Florida, as fundamental error for the first time on appeal notwithstanding precedent from the First District Court of Appeal in Trapp v. State, 736 So.2d 736 (Fla. 1st DCA 1999), upholding the constitutionality of chapter 95-184, which was later overturned by the Florida Supreme Court during the briefing period.

Harvey, 848 So.2d at 1061. We gave an affirmative answer to the combined certified question in Harvey “for the limited purpose expressed herein.” Id., 848 So.2d at 1064. In this case, we leave the first certified question in the broader form posed by the First District, but provide a qualified answer. We view our holding in this case as setting forth the rule regarding preservation of sentencing error via rule 3.800(b)(2), and deem Harvey to be an exception applying only to a facial challenge to the constitutionality of a sentencing statute that, at the time the first appellate brief is filed in the case, has not been declared unconstitutional in any appellate decision binding on the trial court. In Harvey, because the First District had rejected the facial constitutional challenge to the legislation that included the 1995 guidelines amendment, the Heggs issue raised by Harvey “did not exist” for trial courts within the First District when the first brief was filed. Id., 848 So.2d at 1063.

Therefore, we conclude that judicial efficiency and the interests of justice are better served by requiring defendants to comply with the requirements of rule 3.800(b) under the circumstances of this case, in contrast to the “unique circumstances” of Harvey. Id., 848 So.2d at 1064. The interests of justice are further served by the fact that Brannon retains an opportunity to assert the sentencing error after the direct appeal, through either rule 3.800(a) or rule 3.850.

Next, we reaffirm that the window period we recognized in Maddox for raising unpreserved fundamental sentencing errors closed with the November 12, 1999, effective date of Amendments II and not with the issuance of Maddox on May 11, 2000. In Maddox, we held that the courts should “correct certain categories of sentencing errors for criminal defendants whose appellate briefs were filed during the window period after the enactment of [CARA] but before the adoption of our recent procedural changes in Amendments II.” 760 So.2d at 99. Our opinion in Amendments II placed defendants and their attorneys on notice that rule 3.800(b) must be used to preserve both fundamental and nonfundamental sentencing error:

[T]he amended rule is intended to provide one mechanism whereby all sentencing errors may be preserved for appellate review. The comments to the proposed rule defines a “sentencing error” as including “harmful errors in orders entered as a result of the sentencing process. This includes errors in orders of probation, orders of community control, cost and restitution orders, as well as errors within the sentence itself.” The amendment to rule 3.800(a) will make it clear that a rule 3.800(b) motion can be used to correct any type of sentencing error, whether we had formerly called that error erroneous, unlawful, or illegal.

761 So.2d at 1019 (emphasis supplied).

Our opinion in Maddox reaffirmed that in cases in which the initial brief is filed after the effective date of Amendments II, the defendant is required to have objected at sentencing or utilized rule 3.800(b) to preserve all sentencing errors, including fundamental sentencing errors, for appeal. To extend the window we recognized in Maddox beyond the effective date of Amendments II would be inconsistent with the explicit rationale of both decisions. This conclusion comports with our decisions in other cases involving windows resulting from the passage of unconstitutional legislation and the subsequent rectification of the defect. We have held that these windows close with the enactment curing the defect, rather than with the judicial decision recognizing the defect. See, e.g., Trapp v. State, 760 So.2d 924, 928 (Fla.2000) (holding that Heggs window closed when Legislature, as part of biennial adoption process, reenacted amendments contained in legislation violating single-subject rule); see also State v. Johnson, 616 So.2d 1, 2 (Fla.1993) (“Once reenacted as a portion of the Florida Statutes, a chapter law is no longer subject to challenge on the grounds that it violates the single subject requirement of article III, section 6, of the Florida Constitution.”). Therefore, we decline to hold that the preservation requirement of Maddox should be given solely prospective effect.

For these reasons, we answer the first certified question in the negative except as to fundamental error arising from the facial unconstitutionality of a sentencing statute as explained herein, answer the second certified question in the affirmative, and approve the decision of the First District.

It is so ordered.

ANSTEAD, C.J., LEWIS, and QUINCE, JJ„ and SHAW, Senior Justice, concur.

WELLS, J., concurs specially with an opinion, in which CANTERO, J., concurs.

WELLS, J.,

specially concurring.

I concur in the majority’s decision in this case and the holding that the sentencing error had to be presented to the trial court.

I do not agree with or join in that part of the opinion which distinguishes this case from Harvey v. State, 848 So.2d 1060 (Fla.2003). The discussion in this case concerning the majority decision in Harvey confirms my concern about the Harvey decision, as set forth in my dissent in Harvey.

CANTERO, J., concurs.

      . Rule 3.800(b) provides:
      (b) Motion to Correct Sentencing Error. A motion to correct any sentencing error, including an illegal sentence, may be filed as allowed by this subdivision. This subdivision shall not be applicable to those cases in which the death sentence has been imposed and direct appeal jurisdiction is in the Supreme Court under article V, section 3(b)(1) of the Florida Constitution. The motion must identify the error with specificity and provide a proposed correction. A response to the motion may be filed within 15 days, either admitting or contesting the alleged error. Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.
      (1) Motion Before Appeal. During the time allowed for the filing of a notice of appeal of a sentence, a defendant or the state may file a motion to correct a sentencing error.
      (A) This motion shall stay rendition under Florida Rule of Appellate Procedure 9.020(h).
      (B) Unless the trial court determines that the motion can be resolved as a matter of law without a hearing, it shall hold a calendar call no later than 20 days from the filing of the motion, with notice to all parties, for the express purpose of either ruling on the motion or determining the need for an evidentiary hearing. If an evidentiary hearing is needed, it shall be set no more than 20 days from the date of the calendar call. Within 60 days from the filing of the motion, the trial court shall file an order ruling on the motion. If no order is filed within 60 days, the motion shall be considered denied.
      (2) Motion Pending Appeal. If an appeal is pending, a defendant or the state may file in the trial court a motion to correct a sentencing error. The motion may be filed by appellate counsel and must be served before the party’s first brief is served. A notice of pending motion to correct sentencing error shall be filed in the appellate court, which notice automatically shall extend the time for the filing of the brief until 10 days after the clerk of circuit court transmits the supplemental record under Florida Rule of Appellate Procedure 9.140(e)(6).
      (A)The motion shall be served on the trial court and on all trial and appellate counsel of record. Unless the motion expressly states that appellate counsel will represent the movant in the trial court, trial counsel will represent the movant on the motion under Florida Rule of Appellate Procedure 9.140(b)(5). If the state is the movant, trial counsel will represent the defendant unless appellate counsel for the defendant notifies trial counsel and the trial court that he or she will represent the defendant on the state's motion.
      (B) The trial court shall resolve this motion in accordance with the procedures in subdivision (b)(1)(B).
      (C) In accordance with Florida Rule of Appellate Procedure 9140(e)(6), the clerk of circuit court shall supplement the appellate record with the motion, the order, any amended sentence, and, if designated, a transcript of any additional portion of the proceedings.

      . For consistency with our prior opinions, we refer to this decision as Amendments II to distinguish it from Amendments to the Florida Rules of Appellate Procedure, 696 So.2d 1103 (Fla.1996), which has been designated Amendments I.

      . Heggs v. State, 759 So.2d 620 (Fla.2000). In Heggs, we held that chapter 95-184, Laws of Florida, was enacted in violation of the single-subject requirement of article III, section 6 of the Florida Constitution. Id. at 627. We determined that defendants sentenced under a revision to the sentencing guidelines contained in chapter 95-184 were entitled to be resentenced if their sentences were in excess of what they could have received under the previous, valid version of the guidelines. Id.

      . If there is no controlling decision by this Court or the district court having jurisdiction over the trial court on a point of law, a decision by another district court is binding. See Pardo, 596 So.2d at 666-67.

      . Because we include this proviso, we expressly decline to address the merits of any potential claim.


author: WELLS, J.

text:
    D.S.S., Petitioner, v. STATE of Florida, Respondent.
    No. SC02-413.
    Supreme Court of Florida.
    June 12, 2003.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert J. Krauss, Senior Assistant Attorney General, Chief of Criminal Law, Tampa, and Susan M. Shanahan, Assistant Attorney General, Tampa, FL, for Respondent.
   WELLS, J.

We have for review D.S.S. v. State, 806 So.2d 554 (Fla. 2d DCA 2002), which expressly and directly conflicts with the decision in Covington v. State, 359 So.2d 563 (Fla. 4th DCA 1978). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. We approve the decision below and disapprove Covington.

On the evening of May 6, 2002, D.S.S. and three other juveniles broke into Plant City High School. They committed acts of vandalism and stole items from the school. Police responded to a burglar alarm and apprehended D.S.S. on school grounds. A delinquency petition was filed against D.S.S., charging burglary, criminal mischief, petit theft, and resisting an officer without violence. At the trial, police officers testified that D.S.S. was seen near damaged vending machines inside the building and was captured as he fled the building with five packages of candy in his pockets. An assistant principal also testified to the extent of damage done to the building and its contents, including the vending machines. The trial court adjudicated D.S.S. delinquent on the basis of all four charges.

On appeal, D.S.S. argued that the State failed to establish a prima facie case because it did not prove that the Hillsbor-ough County School Board owned the school building and candy found in D.S.S.’s pockets. The Second District Court of Appeal rejected D.S.S.’s argument, holding that although no witness specifically testified to the ownership of the school building and its contents, the ownership element was sufficiently established. D.S.S., 806 So.2d at 555. In so holding, the Second District stated:

We fully agree that in the context of a private building,or an automobile, the State must present evidence as to the owner or possessor of the property in order to prove a burglary. See L.D.S. v. State, 784 So.2d 1227 (Fla. 2d DCA 2001); In the Interest of M.M., 571 So.2d 112 [(Fla. 4th DCA 1990)]. Moreover, in this case, we are not required to decide whether we agree with the analysis of the Third District in [A.L. v. State, 359 So.2d 583 (Fla. 3d DCA 1978) ], because that case involved an unnamed budding under circumstances that are not well explained in the opinion.
This case involves a formally named public building of the sort that is a landmark in its community. The assistant principal who had responsibility for this building testified concerning the break-in. There can be no legitimate doubt that the building did not belong to D.S.S. There is no risk that D.S.S. could ever be prosecuted again for this same offense. For purposes of the offenses of burglary and theft, we conclude that the ownership of this named public building and the candy in it was sufficiently established in this case. We therefore affirm the adjudication of delinquency as to all offenses.

Id. at 556.

D.S.S. seeks review of the Second District’s decision, and this Court has accepted jurisdiction on the basis of express and direct conflict with Covington v. State, 359 So.2d 563 (Fla. 4th DCA 1978). See art. V, § 3(b)(3), Fla. Const. In Covington, the defendant was convicted of a burglary at the Middle Six School in Indian River County. At trial, the vice-principal testified that the school was “run” by the Board of Public Instruction of Indian River County. On appeal, the Fourth District Court of Appeal reversed Covington’s conviction, finding the proof of ownership of the burglarized property insufficient because “the state failed to produce any evidence of the actual ownership of the school property.” Id. at 563.

D.S.S. contends that the decision below dispenses with proof of ownership as an element of the offenses of burglary, criminal mischief, and petit theft and allows trial courts to improperly take judicial notice of ownership of a building by a public entity. We disagree. To the contrary, the decision below correctly concludes that sufficient evidence of ownership was presented at trial to establish a prima facie case.

Ownership of the building or structure is a material element of the crime of burglary. In re M.E., 370 So.2d 795, 796 (Fla.1979). Likewise, the crimes of criminal mischief and theft require proof that the damaged or stolen property belonged to “another.” See §§ 806.13(1)(a), 812.014(1), Fla. Stat. (1999). The purposes of the ownership element are to prove the accused does not own the property and to sufficiently identify the offense to protect the accused from a second prosecution for the same offense. In re M.E., 370 So.2d at 796-97. This Court has held that the ownership element in burglary is not the same as ownership in property law but, rather, means “any possession which is rightful as against the burglar and is satisfied by proof of special or temporary ownership, possession, or control.” Id. at 797. This is true regarding the ownership element in criminal mischief and theft as well. See Duncan v. State, 29 Fla. 439, 10 So. 815, 816 (1892); R.C. v. State, 481 So.2d 14, 15 (Fla. 1st DCA 1985).

Here, the State presented sufficient evidence to establish the ownership element as it is defined in In re M.E. Throughout the trial, the building was referred to as Plant City High School. An officer testified that the school is located in Hillsborough County. The assistant principal testified that he had worked at the school since it opened in 1972, was called to the school after the burglary, had intended to open it for a group that day, and was involved in directing the clean-up that followed. Furthermore, at the time of the crime and the trial, D.S.S. was a juvenile. These facts provide sufficient circumstantial evidence from which possession of the school building and its contents by the Hillsborough County School Board, rightful as against D.S.S., can be inferred. See Anderson v. State, 504 So.2d 1270, 1272 (Fla. 1st DCA 1986) (holding evidence that county owned burglarized building was sufficient to prove school board’s interest superior to that of defendant); R.A. v. State, 400 So.2d 1059, 1059-60 (Fla. 3d DCA 1981) (holding testimony that school was part of county’s school system was sufficient to allow trier of fact to determine school board had interest in school building superior to that of defendant); Clark v. State, 500 S.W.2d 507, 507 (Tex.Crim.App.1973) (finding circumstantial evidence was sufficient to prove ownership element where principal not specifically asked about ownership but made references to “my school” and “my office” and was first person called after burglary).

As for the Covington decision, we disagree with the conclusion therein that where testimony indicated the Board of Public Instruction of Indian River County operated the burglarized school, the State failed to prove the same county owned the school for purposes of a burglary charge. See Covington, 359 So.2d at 563. Such testimony was sufficient to establish that Indian River County had “special or temporary ownership, possession, or control” superior to that of the accused.

Accordingly, we approve the decision below by the Second District Court of Appeal and disapprove Covington v. State, 359 So.2d 563 (Fla. 4th DCA 1978).

It is so ordered.

ANSTEAD, C.J., and PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.


author: PER CURIAM.

text:
    PEPPER’S STEEL & ALLOYS, INC., et al., Appellants, v. UNITED STATES of America, et al., Appellees.
    No. SC02-971.
    Supreme Court of Florida.
    June 12, 2003.

      Richard M. Bales, Jr. of Bales & Som-mers, P.A., Miami, Florida; and Cindy L. Ebenfeld and Ralph O. Anderson of Hicks, Anderson & Kneale, P.A., Hollywood, FL, for Appellants.
    Richard L. Wassenberg of Ponzoli, Was-senberg, Miami, FL; and Walter J. Andrew, pro hac vice, and Edward J. Grass, pro hac vice, of Shaw Pittman LLP, McLean, Virginia, for Appellees.
   PER CURIAM.

We review a question of Florida law that the United States Court of Appeals for the Eleventh Circuit certified as determinative of a cause pending in that court for which there appears to be no controlling precedent. The Eleventh Circuit certified the following question:

UNDER SECTION 627.428 OF THE FLORIDA STATUTES, IS AN INSURED ENTITLED TO AN AWARD OF ATTORNEYS’ FEES INCURRED IN ENFORCING A SETTLEMENT AGREEMENT AGAINST AN INSURER?

United States v. Pepper’s Steel & Alloys, Inc., 289 F.3d 741, 744 (11th Cir.2002). We have jurisdiction. See art. V, § 3(b)(6), Fla. Const. At the Eleventh Circuit’s invitation, we rephrase the question slightly to conform to the particular circumstances of this case, as follows:

IS AN INSURED ENTITLED TO ATTORNEYS’ FEES UNDER SECTION 627.428, FLORIDA STATUTES, FOR LITIGATING, DURING A LAWSUIT TO DETERMINE COVERAGE UNDER AN INSURANCE POLICY, WHETHER THE INSURED AND THE INSURER SETTLED THE COVERAGE ISSUE?

As explained below, we answer the rephrased certified question in the affirmative.

I.

The Eleventh Circuit’s opinion explains the relevant facts. After the United States sued to recover remediation costs arising from an allegedly polluted site, Pepper’s Steel and Alloys, Inc. (Pepper’s Steel) demanded coverage from United States Fidelity and Guaranty Company (USF & G), which had issued an insurance policy covering the site. United States v. Pepper’s Steel & Alloys, Inc., 289 F.3d 741, 742 (11th Cir.2002). In 1991, USF & G orally offered to settle for $2 million. In October 1993, after a decision of this Court drastically reduced USF & G’s exposure, Pepper’s Steel accepted the offer. USF & G claimed that its offer had been rejected or had lapsed. The district court held that the settlement agreement was valid. Under the district court’s order, each party had to bear its own costs and attorneys’ fees. Id.

USF & G appealed and Pepper’s Steel cross-appealed, seeking attorneys’ fees. 289 F.3d at 742. The Eleventh Circuit affirmed the district court’s finding of a binding settlement agreement, but remanded for consideration of Pepper’s Steel’s claim for attorneys’ fees under section 627.428, Florida Statutes (1993). Although the Eleventh Circuit noted that the settlement agreement foreclosed any claim for fees incurred before October 22, 1993, the court stated that if Pepper’s Steel was “seeking an award of fees incurred after October 22, 1993, in connection with [its] motion to enforce the agreement, then [it] may have a viable claim. Since these fees were incurred post-agreement, we cannot assume the parties compromised them in their settlement.” Pepper’s Steel & Alloys, 289 F.3d at 742 (quoting United States v. Pepper’s Steel & Alloys, Inc., 87 F.3d 1329 (table) (No. 94-5187, 11th Cir. May 31, 1996)).

On remand, the district court concluded that section 627.428 did not permit Pepper’s Steel to recover attorneys’ fees. 289 F.3d at 742. Although the court acknowledged that Florida law permits an insured to recover fees incurred in reaching a settlement, the court held that Florida law does not permit Pepper’s Steel to recover fees incurred in enforcing the settlement agreement. Id.

Pepper’s Steel appealed. Unable to reconcile conflicting language in Travelers Indemnity Co. of America v. Morris, 390 So.2d 464 (Fla. 3d DCA 1980), and Bankers Security Insurance Co. v. Brady, 765 So.2d 870 (Fla. 5th DCA 2000), the Eleventh Circuit asks us to determine whether section 627.428, Florida Statutes, allows an award of attorneys’ fees to an insured who successfully argues that the insurer agreed to settle the coverage issue in that litigation.

II.

Under Florida law, each party generally bears its own attorneys’ fees unless a contract or statute provides otherwise. Florida Patient’s Comp. Fund v. Rowe, 472 So.2d 1145, 1148 (Fla.1985); see also State Farm Fire & Cas. Co. v. Palma, 629 So.2d 830, 832 (Fla.1993) (“This Court has followed the ‘American Rule’ that attorney’s fees may be awarded by a court only when authorized by statute or by agreement of the parties.”). This case involves one such statute, section 627.428. That statute provides in relevant part:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer and in favor of any named or omnibus insured or the named beneficiary under a policy or contract executed by the insurer, the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured or beneficiary a reasonable sum as fees or compensation for the insured’s or beneficiary’s attorney prosecuting the suit in which the recovery is had.

Section 627.428 “direct[s] the courts to assess attorney fees against only one side of the litigation in certain types of actions.” Rowe, 472 So.2d at 1148; see also Danis Indus. Corp. v. Ground Improvement Techniques, Inc., 645 So.2d 420, 421 (Fla.1994) (“Here, the statute is a one-way street offering the potential for attorneys’ fees only to the insured or beneficiary.”). As we have said, the statute’s purpose “is to discourage insurance companies from contesting valid claims, and to reimburse insureds for their attorney’s fees incurred when they must enforce in court their contract with the insurance company.” Bell v. U.S.B. Acquisition Co., 734 So.2d 403, 411 n. 10 (Fla.1999). Section 627.428 must be strictly construed because an award of attorneys’ fees is in derogation of common law. Roberts v. Carter, 350 So.2d 78, 78-79 (Fla.1977).

The statute clearly provides that attorneys’ fees shall be awarded against the insurer when judgment is rendered in favor of an insured. Palma, 629 So.2d at 832. In Florida, the payment of a settlement claim is the functional equivalent of a confession of judgment or a verdict in favor of the insured. Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217, 218-19 (Fla.1983). Therefore, as the Eleventh Circuit recognized, in Florida an insured may recover attorneys’ fees incurred in reaching a settlement. See Pepper’s Steel & Alloys, 289 F.3d at 743.

This case presents a slightly different question: whether the insured may recover attorneys’ fees incurred in determining whether a valid settlement agreement exists at all. We hold that, it may. In this case, Pepper’s Steel originally sued to obtain coverage under its insurance policy. Pepper’s Steel alleged that during the lawsuit, the parties settled. USF & G contested this allegation. Pepper’s Steel therefore was forced to litigate that issue. The district court agreed with Pepper’s Steel. Under the statute, Pepper’s Steel, an insured, obtained “rendition of a judgment or decree” by a court of this state against an insurer “under a policy or contract executed by the insurer.” Section 627.428 provides for fees awardable to the insured’s attorney “prosecuting the suit in which the recovery is had” (emphasis added). Because this suit arose under the policy USF & G issued to Pepper’s Steel, it is within the scope of section 627.428. Moreover, it would be incongruous to permit fees incurred in reaching a settlement agreement, but not to allow fees to determine whether the parties reached a binding settlement in the first place.

Our decision in Insurance Co. of North America v. Lexow, 602 So.2d 528 (Fla.1992), supports this conclusion. In Lexow, the Eleventh Circuit asked this Court to decide whether the phrase “under a policy or contract” in section 627.428 includes litigation commenced after the insurer has paid the insured its policy limits to determine whether the insured or the subrogat-ed insurer is entitled to funds recovered from the tortfeasor. 602 So.2d at 580. We held that it did, reasoning that resolution of the dispute over who was entitled to the monies recovered against the tortfea-sor ultimately determined whether the claim was fully paid under the policy. Id. at 531. We emphasized that the dispute arose under the policy, stating, “There is little difference between paying an insurance claim and then suing for its return and refusing to pay the claim in the first place.” Id. Likewise in this case, the dispute arose under an insurance policy. Therefore, we find that the scope of section 627.428 includes litigation in the same case to determine whether the parties reached a binding settlement.

In considering this issue, the Eleventh Circuit found it difficult to reconcile Morris, 390 So.2d at 464, and Brady, 765 So.2d at 870. We therefore discuss those cases to determine their relevance to the issue in this case. In Morris, the insured secured a judgment against Travelers on a personal injury protection insurance claim. The trial court awarded attorneys’ fees under section 627.428. The Third District Court of Appeal affirmed the judgment and fee award. See Travelers Indem. Co. v. Morris, 360 So.2d 1262 (Fla. 3d DCA 1978). The trial court later awarded $2500 for additional postjudgment services the insured’s counsel rendered in the trial court. The Third District reversed that award. Noting that the fee represented payment for (a) securing payment of the PIP benefits the judgment required and (b) settling the record of unreported prejudgment proceedings for use in the initial appeal, the Third District found that the clear terms of section 627.428 “permit fees only for services involved in obtaining a judgment against a carrier, and not for those required to effect compliance with, collection of, or execution upon that judgment.” Morris, 390 So.2d at 465.

In Brady, Bankers Insurance covered the insured’s home under a homeowners’ policy. 765 So.2d at 871. A lightning strike and fire damaged the home. Bankers retained an independent adjustor and the insured retained a public adjustor to determine the amount of damages due under the policy. According to the insured, the adjustors reached an agreement that the loss totaled $65,000. The adjustor for Bankers later informed the insured’s adjustor that a new adjustor had assumed responsibility for the claim. The insured sued, alleging breach of the oral settlement. Based on the adjustors’ depositions, the trial court ruled that the initial adjustor for Bankers had settlement authority and therefore the parties had entered into a verbal agreement determining the amount of damage. 765 So.2d at 871-72. The Fifth District affirmed. Id. at 873.

The result in Brady is consistent with our approach in this case. Here, as in Brady, the insured expended its attorneys’ fees in obtaining a judgment against the insurer and in litigating whether the parties had entered into a binding settlement. We approve that decision. In contrast, in reaching its decision in Morris, the Third District relied on Lee v. Government Employees Insurance Co., 388 So.2d 346 (Fla. 1st DCA 1980), and Bohlinger v. Higginbotham, 70 So.2d 911 (Fla.1954). Neither case, however, supports the conclusion reached in Morris. In Lee, the First District concluded that a different statute — section 627.427(2), Florida Statutes (1979) — did not authorize attorneys’ fees and costs incurred after rendition of a judgment. That statute addressed procedures for revoking an insurer’s certificate of insurance. While Bohlinger involved a predecessor statute to section 627.428, the case dealt with the issue of whether the statute applied to an action involving the liquidation of an insurance company. Because we can find no support for the holding in Morris, we disapprove that case to the extent it conflicts with this decision.

Based on the discussion above, we hold that, where an insured sues its insurer for coverage under a policy and the parties later contest whether they have reached a settlement, section 627.428 allows a prevailing insured to be awarded the attorneys’ fees incurred in litigating that issue.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, QUINCE and CANTERO, JJ., and SHAW, Senior Justice, concur.

LEWIS, J., recused.

      . .USF & G has not argued that a United States district court located in Florida is not a court of this state as provided in section 627.428.


author: PER CURIAM. PARIENTE, J.,

text:
    Travis WELSH, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1092.
    Supreme Court of Florida.
    June 12, 2003.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney' General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Anne C. Too-lan, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PER CURIAM.

We have for review the decision in Welsh v. State, 816 So.2d 175 (Fla. 1st DCA 2002), which certified conflict with the decisions in Velazquez v. State, 648 So.2d 302 (Fla. 5th DCA 1995), and King v. State, 642 So.2d 649 (Fla. 2d DCA 1994). The conflict issue is whether lewd and lascivious conduct as set forth in section 800.04, Florida Statutes (1997), is a permissive lesser included offense of capital sexual battery as set forth in section 794.011(2)(a), Florida Statutes (1997). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We conclude, based on this Court’s opinion in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a permissive lesser included offense of capital sexual battery, and thus, the defendant was not entitled to a jury instruction on the offense.

By amended information filed October 13, 2000, Travis Welsh was charged with one count of capital sexual battery upon a person less than twelve years of age, by oral-vaginal contact in contravention of section 794.011(2)(a), Florida Statutes. Welsh was also charged with lewd and lascivious assault of the victim by touching her breasts or vagina or both on occasions separate from the occasions underlying the charge of sexual battery in contravention of section 800.04(1), Florida Statutes. A jury trial was held. As to the capital sexual battery charge, the trial court instructed the jury on the lesser included offenses of battery, attempted sexual battery, and assault. The trial court denied Welsh’s request for an instruction on lewd and lascivious conduct as a lesser included offense of the sexual battery charge. The jury returned verdicts of guilty on both charged counts. The trial court sentenced Welsh to the statutorily mandated term of life imprisonment without the possibility of parole for the offense of capital sexual battery, and a concurrent term of fifteen years’ imprisonment for the offense of lewd and lascivious conduct.

Welsh appealed to the First District Court of Appeal, arguing that the jury should have been instructed on lewd and lascivious conduct as a permissive lesser included offense of capital sexual battery. Welsh relied on statements in King and Velazquez, which indicate that when a defendant is charged -with sexual battery, if the evidence adduced at trial could support a jury verdict for lewd and lascivious conduct, the jury should be instructed on the lesser offense. See King, 642 So.2d at 649-50; Velazquez, 648 So.2d at 305 n. 7. The First District rejected Welsh’s argument and affirmed his conviction, explaining its reasoning as follows:

This court has previously stated that one cannot be convicted of committing a lewd and lascivious act on a child less than 12 for conduct that also constitutes the offense of sexual battery. See Jozens v. State, 649 So.2d 322, 323 (Fla. 1st DCA 1995). Accord State v. Robinson, 771 So.2d 1256 (Fla. 3d DCA 2000); McGriff v. State, 526 So.2d 995 (Fla. 4th DCA 1988); Walker v. State, 464 So.2d 1325 (Fla. 5th DCA 1985). The appellant, however, relying on Velazquez v. State, 648 So.2d 302, 305 n. 7 (Fla. 5th DCA 1995) (on reh’g); King v. State, 642 So.2d 649 (Fla. 2d DCA 1994); and Kolaric v. State, 616 So.2d 117 (Fla. 2d DCA 1993), argues that he is entitled to the instruction as a permissible lesser included offense to sexual battery, because the jury could have rejected the testimony of state witnesses and decided that no sexual battery occurred, and it could have determined as well from the evidence that appellant was guilty only of a lewd and lascivious act. We cannot agree.
Initially, the Schedule of Lesser Included Offenses does not list the offense of lewd and lascivious act as a Category 2 (permissible lesser) crime. As the supreme court observed in In re Use By the Trial Courts of the Standard Jury Instructions in Criminal Cases, 431 So.2d 594, 597 (Fla.1981), the “schedule will be an authoritative compilation upon which a trial judge should be able to confidently rely.” The exclusion of lewd and lascivious act from the list of lesser offenses should not be viewed as a mere inadvertent omission. Even before the schedule’s adoption, the court had constructed the following analysis to determine whether a particular offense should be permissibly included within a greater offense: (1) whether the information specifically alleged all the statutory elements of the lesser offense, and (2) whether evidence presented at trial would support the lesser offense. See Brown v. State, 206 So.2d 377, 383 (Fla. 1968). By operation of law, the information in the present case charging capital sexual battery could not also allege all of the statutory elements of lewd and lascivious conduct.
Appellant was accused of committing capital sexual battery in violation of section 794.011(2)(a), because he, a person 18 years of age or older, placed his mouth on the vagina of the victim, a person less than 12 years of age. The allegations clearly comply with the definition of sexual battery.... In defining the offense of a lewd and lascivious act, section 800.01, Florida Statutes (1997), has, by specifically excluding sexual battery as a means of perpetrating such act, removed sexual battery as an element involved in the commission of a lewd and lascivious act. ...
Thus, the ... provisions make clear that the offenses of sexual battery and lewd and lascivious act are mutually exclusive, a conclusion the Florida Supreme Court reached in State v. Hightower, 509 So.2d 1078, 1079 (Fla.1987). Although the issue raised before the court in Hightower pertained solely to the question of whether a lewd and lascivious act was a necessarily included offense to sexual battery, the court’s analysis is broad enough to apply as well to its inclusion as a permissible lesser offense....
The crime of lewd and lascivious conduct cannot ... by operation of law, be considered any category of lesser offense to sexual battery.

Welsh, 816 So.2d at 176-77 (emphasis supplied).

In Welsh, the First District relied on Hightower, in which the issue was whether lewd and lascivious conduct was a necessarily lesser included offense of capital sexual battery. In rejecting this argument in Hightoiuer, we construed the statutory language of section 800.04(1):

[I]t is evident that the phrase “without committing the crime of sexual battery” was included to differentiate between crimes of sexual battery and lewd and lascivious conduct. Had the phrase been excluded, a person having forcible sexual intercourse with a child under sixteen would be guilty of both crimes. As now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious. Thus, the unique language contained in the amendment to section 800.04 makes it clear that these particular crimes are mutually exclusive.

509 So.2d at 1079.

After careful consideration, we adopt the opinion of the First District Court of Appeal in this case and approve Welsh. We also disapprove those statements in King and Velazquez which indicate that a defendant is entitled to an instruction on lewd and lascivious conduct pursuant to section 800.04 as a permissive lesser included offense of capital sexual battery. See Velazquez, 648 So.2d at 305 n. 7; King, 642 So.2d at 649-50. We make clear, however, that the holding regarding permissive included offenses pertains only to the 1997 versions of the applicable statutes.

It is so ordered.

ANSTEAD, C.J., WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., and SHAW, Senior Justice, concur.

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., concurs.

PARIENTE, J.,

concurring.

I concur in the opinion of the majority because I agree that this issue is controlled by this Court’s holding in State v. Hightower, 509 So.2d 1078 (Fla.1987), that lewd and lascivious conduct is not a necessarily included lesser offense of capital sexual battery. A necessarily included offense is one in which the statutory elements of the lesser offense are subsumed by the greater offense, as charged. See Brown v. State, 206 So.2d 377, 382 (Fla. 1968); see also Hand v. State, 199 So.2d 100, 103 (Fla.1967) (stating that larceny is necessarily included offense of robbery because robbery is larceny plus force, violence, assault, or putting in fear); Rodriguez v. State, 789 So.2d 513, 514 (Fla. 5th DCA 2001) (stating that simple battery is necessarily included offense of battery of a law enforcement officer). A permissive lesser included offense may or may not be included in the charged offense depending on the pleadings and the evidence. See Amado v. State, 585 So.2d 282, 282 (Fla.1991).

The Court in Hightower based its holding on the statutory language of section 800.04, Florida Statutes (1983), specifically the inclusion of the phrase “without committing the crime of sexual battery,” to conclude that lewd and lascivious conduct was not a necessarily included lesser offense of capital sexual battery. See 509 So.2d at 1079. However, if we were not bound by this Court’s precedent in High-tower, I would adopt Justice Shaw’s well-reasoned opinion concurring in result only in that case, in which he stated that the inclusion of the phrase “without committing the crime of sexual battery” actually supported the conclusion that section 800.04 was a necessarily included lesser offense of capital sexual battery. As Justice Shaw explained:

The reason this necessarily follows is that we know ... that all separate offenses are subject to separate convictions and sentences, and, if two offenses are not separate, then one must be necessarily included in the other and separate convictions and sentences are prohibited. Thus, if the legislative phrase prohibits separate convictions and sentences, then it can only be that the legislature intended section 800.04 to become a necessarily included lesser offense of section 794.011.

Id. at 1080 (Shaw, J., specially concurring in result only). Justice Shaw further noted that treating lewd and lascivious conduct and sexual battery as two separate offenses had the “undesirable consequences” of permitting either dual convictions or multiple prosecutions for the same act. See id. In Justice Shaw’s view, subsection (2) of section 800.04 simply meant that

any defendant who has sexual relations with a child under age sixteen is guilty of lewd and lascivious conduct. However, if the defendant is convicted of sexual battery for the same conduct, he may be convicted only of the greater offense, sexual battery.... [Tjhis addition makes explicit the subordinate and subsumed relationship of lewd and lascivious behavior with a child as a necessarily included offense of sexual battery.

Id. at 1081. This interpretation is logical to me.

This interpretation is also consistent with the history of section 800.04. Notably, in State v. Lanier, 464 So.2d 1192 (Fla.1985), this Court considered whether a defendant could be convicted of a violation of section 800.04, Florida Statutes (1981), “by engaging in sexual intercourse” with a consenting and previously unchaste twelve-year-old girl. Id. at 1198. At the time of the defendant’s conviction in Lanier, section 800.04 read as follows:

Lewd, lascivious or indecent assault or act upon or in presence of child. — Any person who shall handle, fondle or make an assault upon any child under the age of 14 years in a lewd, lascivious, or indecent manner, or who shall knowingly commit any lewd or lascivious act in the presence of a such child, without the intent to commit sexual battery shall be guilty of a felony of the second degree ....

§ 800.04, Fla. Stat. (1981). The Third District reversed the defendant’s conviction, see Lanier v. State, 443 So.2d 178 (Fla. 3d DCA 1983), but this Court quashed the district court’s decision. See Lanier, 464 So.2d at 1193.

This Court noted that shortly after the Third District reversed the defendant’s conviction, the Legislature passed chapter 84-86, Laws of Florida, amending section 800.04 “to specifically cover the acts” committed by the defendant in Lanier. Lanier, 464 So.2d at 1193. The amended section read:

800.04 Lewd, lascivious, or indecent assault or act upon or in presence of a child; sexual battery. — Any person who:
(1) Handles, fondles, or makes an assault upon any child under the age of 16 years in a lewd, lascivious, or indecent manner;
(2) Commits an act defined as sexual battery under s. 794.011(l)(h) upon any child under the age of 16 years; or
(3) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years without committing the crime of sexual battery is guilty of a felony of the second degree.... Neither the victim’s lack of chastity nor the victim’s lack of consent is a defense to the crime proscribed by this section.

§ 800.04, Fla. Stat. (Supp.1984) (emphasis supplied). The preamble to the amendment read in part:

Whereas, the intent of the Legislature was and remains to prohibit lewd and lascivious acts upon children, including sexual intercourse and other acts defined as sexual battery, without regard either to the victim’s consent or the victim’s prior chastity....

Ch. 84-86, Laws of Florida.

As this Court recognized in Hightower, the statute was amended in 1984 only to ensure that the victim’s lack of chastity would not be a defense to the crime of lewd and lascivious acts upon a minor and in specific response to the Third District’s contrary holding in Lanier. See Hightower, 509 So.2d at 1079. Thus, there is simply nothing in the history of the addition of the phrase “without committing the crime of sexual battery” to section 800.04 which indicates that the Legislature intended to exclude lewd and lascivious conduct as a necessarily included offense of capital sexual battery.

The bottom line is that it is impossible to commit sexual battery without also committing a lewd and lascivious act. For example, in McConn v. State, 648 So.2d 837, 837 (Fla. 2d DCA 1995), the defendant was charged with two separate counts of both sexual battery and lewd and lascivious conduct based on the same two encounters. 648 So.2d at 837. The lewd and lascivious counts alleged that the defendant placed his exposed penis between the legs of the victim in violation of section 800.04(1), and the sexual battery counts alleged that the defendant penetrated the victim. See id. at 838. The defendant argued that he could not be convicted of both crimes because the conduct of placing his exposed penis between the legs of the victim was incorporated within the crime of the sexual activity alleged in the information. See id. The State argued that it could divide the crime into two sequential offenses. See id. The Second District rejected the State’s argument and noted that

[f]rom a practical standpoint ... it is impossible to commit the sexual activity alleged in the information [penile penetration] without committing the lewd act [placing the exposed penis between the legs of the victim] in the process. Thus, under the evidence and the allegations of the information, lewd and lascivious conduct was a lesser included offense of the charged sexual activity.

Id. at 839.

The defendant in this case engaged in oral-vaginal contact with a child less than twelve years of age, conduct that constitutes the crime of capital sexual battery and carries with it the statutorily mandated term of life in prison. Although the jury was instructed on the lesser included offenses of battery and assault, an instruction on lewd and lascivious assault would have given the jury a basis to convict the defendant of a lesser sex crime.

However, considering the precedent of this Court’s opinion in Hightower, as well as the trial court’s adherence to the Schedule of Lesser Included Offenses set forth in the Florida Standard Jury Instructions in Criminal Cases, I cannot conclude that the trial court erred in denying Welsh an instruction on lewd and lascivious conduct as a permissive lesser included offense of capital sexual battery. Accordingly, I concur with the majority’s approval of the First District opinion.

ANSTEAD, C.J., concurs.

      . The crime of sexual battery on a child less than twelve set forth in Florida Statutes section 794.011(2)(a) is referred to as “capital" sexual battery because the crime historically has been statutorily punishable by death. However, in Buford v. State, 403 So.2d 943, 951 (Fla.1981), this Court determined that the sentence of death for the crime of "capital sexual battery” constituted cruel and unusual punishment in violation of the Eighth Amendment.

      . A defendant is generally entitled to a jury instruction on a permissive lesser included offense depending on (a) the accusatory pleadings, and (b) the evidence at trial. See Brown v. State, 206 So.2d 377, 382 (Fla.1968). In other words, the indictment must allege all of the statutory elements of the permissive lesser included offense, and there must be . some evidence adduced at trial establishing all of the elements of the permissive lesser. See Jones v. State, 666 So.2d 960, 963 (Fla. 3d DCA 1996).

      . Section 794.011, entitled "Sexual battery," provides' in pertinent part:
      (1) As used in the chapter:

      (h) "Sexual battery” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.

      (2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141.
      § 794.011, Fla. Stat. (1997).

      .Section 800.04 entitled "Lewd, lascivious, or indecent assault or act upon or in the presence of child,” provides:
      A person who:
      (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;

        (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that'sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;
      (3) Commits an act defined as sexual battery under s. 794.01 l(l)(h) upon any child under the age of 16 years; or
      (4)Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years,

        without committing the crime of sexual battery, commits a felony of the second degree. ...
      § 800.04, Fla. Stat. (1997) (emphasis supplied).

      . Section 800.04 was substantially amended in 1999. The statute both eliminates the cross-reference to section 794.01 l(l)(h) and the language "without committing the crime of sexual battery.” We express no opinion as to the effect of these statutory changes on whether lewd and lascivious conduct is a necessary or permissive lesser included offense of capital sexual battery. Currently, the pertinent sections of the statute read:
      800.04 Lewd or lascivious offenses committed upon or in the presence of persons less than 16 years of age.—
      (1) DEFINITIONS. — As used in this section:
      (a) "Sexual activity” means the oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object....

      (4)LEWD OR LASCIVIOUS BATTERY. — A person who:
      (a) Engages in sexual activity with a person 12 years of age or older but less than 16 years of age;....

      commits lewd or lascivious battery....
      (5) LEWD OR LASCIVIOUS MOLESTATION.—
      (a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd and lascivious molestation.

      (6) LEWD OR LASCIVIOUS CONDUCT.—
      (a) A person who:
      1. Intentionally touches a person under 16 years of age in a lewd and lascivious manner....

      commits lewd or lascivious conduct. § 800.04, Fla. Stat. (2002).

      . We decline to address the other issues raised by Welsh that are not the basis of our jurisdiction. See Wood v. State, 750 So.2d 592, 595 n. 3 (Fla.1999) (declining to address issues beyond the scope of the certified conflict).

      . Judge Zehmer made this point in dissent in O’Bright v. State, 508 So.2d 385 (Fla. 1st DCA 1987), when he stated:
      But in view of the legislature’s forceful expression in the preamble to chapter 84-86 of its intent to include within the ambit of 800.04 offenses acts amounting to sexual battery irrespective of consent and prior unchastity, I would conclude that one may be convicted of violating any subsection of section 800.04 even though the acts constituting fondling ... may also satisfy the definition of sexual battery under section 794.0ll(l)(h)....

        Id. at 389 (Zehmer, J., dissenting). The history of section 800.04 is described in great detail in Judge Zehmer’s dissent in this case.

      . As to Welsh’s claim that life imprisonment without the possibility of parole for the crime of capital sexual battery without penile/vaginal union constitutes cruel and unusual punishment, this issue was not addressed by the First District and only summarily briefed in this Court. In my view, the constitutionality of a mandatory punishment of life imprisonment for the specific crime of sexual battery without penile/vaginal union is a significant concern. As the Second District has observed in holding that life imprisonment without parole is not unconstitutional punishment for penile-vaginal capital sexual battery,
      [t]here is reason to be concerned that family members who know about the severity of this penalty will hesitate or even refuse to report intrafamily sexual battery, or choose not to cooperate with its prosecution. The eloquent juror in this case demonstrates that jurors who understand the law may choose to exercise their options of jury pardon in some cases. Thus, there is a possibility this inflexible mandatory penalty of life imprisonment may result in fewer convictions for this type of sexual predation than a more flexible penalty. As a result, this more severe punishment may ultimately prove to be a lesser deterrent than a more flexible penalty.

        Gibson v. State, 721 So.2d 363, 370 (Fla. 2d DCA 1998).

      . The Schedule does not list the offense of lewd and lascivious act as a Category 2 (permissible lesser) crime.