author: SHAW, J. WELLS, C.J.,

text:
    STATE of Florida, Petitioner, v. David KLAYMAN, Respondent.
    No. SC00-1723.
    Supreme Court of Florida.
    Nov. 14, 2002.
    Rehearing Denied Jan. 10, 2003.

      Robert A. Butterworth, Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and August A. Bonavita, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    R. Mitchell Prugh of Middleton & Prugh, P.A., Melrose, FL, for Respondent.
   SHAW, J.

We have for review Klayman v. State, 765 So.2d 784 (Fla. 4th DCA 2000), wherein the district court certified the following question:

Should the supreme court’s decision in Hayes v. State, [750 So.2d 1 (Fla.1999)] be retroactively applied?

Klayman, 765 So.2d at 785. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

I. FACTS

The relevant facts are set forth in the district court opinion, which provides in part:

David Klayman appeals the trial court’s denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He contends that the court erred in failing to apply the supreme court’s recent decision of Hayes v. State, 750 So.2d 1 (Fla.1999), to his conviction of trafficking in hydrocodone....
In Hayes, the supreme court quashed this court’s decision in the underlying case of State v. Hayes, 720 So.2d 1095 (Fla. 4th DCA 1998), quashed, 750 So.2d 1 (Fla.1999), and held that the drug trafficking statute (section 893.135(1)(c)1, Florida Statutes (Supp.1996)) did not apply to possession of hydrocodone in amounts under fifteen milligrams per dosage unit. . Appellant argues that the supreme court’s decision in Hayes should be given retroactive application because the effect of the decision has constitutional ramifications for those persons whose sentence was rendered or upheld pursuant to State v. Baxley, 684 So.2d 831, 832-33 (Fla. 5th DCA 1996), and our decision in State v. Hayes.

Klayman, 765 So.2d at 784-85. The district court agreed with Klayman, reversed the trial court’s ruling, and remanded for an evidentiary hearing to determine the continued validity of Klayman’s sentence in light of Hayes. The district court certified the above question and the State petitioned for review before this Court.

II. HAYES V. STATE

The Court in Hayes v. State, 750 So.2d 1 (Fla.1999), was confronted with the following question: whether a person who fraudulently procured forty tablets of Lorcet, a prescription pain relief medication containing a mixture of acetaminophen and hydro-codone, can be convicted of trafficking if the hydrocodone in the mixture was not a Schedule I or II drug. The trafficking statute prohibited the purchase of four grams or more of “any morphine, opium, oxycodone, hydrocodone, hydromorphone ... as described in [Schedule I] or [Schedule II]” or four grams or more of “any mixture containing any such substance.”

Prior to Hayes, Florida district courts were in disagreement as to the meaning of the word “such” in the phrase “any mixture containing any such substance.” The Fourth and Fifth District Courts of Appeal had held that “such” referred to any of the drugs enumerated in the statute (i.e., “morphine, opium, oxycodone, hydroco-done, hydromorphone”), regardless of their chemical forms. The First and Second District Courts of Appeal, on the other hand, had held that “such” referred to the enumerated drugs but only when those drugs are in the chemical forms described in Schedules I and II.

This Court in Hayes analyzed the language in the trafficking statute, endorsed the view of the First and Second District Courts of Appeal, and held that the word “such” referred to the enumerated drugs only in the chemical forms described in Schedules I and II. The Court then determined that, under the applicable drug classification statutes, hydrocodone may be either a Schedule II or III drug, depending on the dosage unit, and that the hydroco-done in the mixture possessed by Hayes was a Schedule III drug. Because the mixture possessed by Hayes did not contain a Schedule I or II drug, she could not be convicted of trafficking.

The basic holding of Hayes is that the trafficking statute, since the time of enactment, was intended to apply only to Schedule I and II drugs or to mixtures containing Schedule I or II drugs. The question posed in the present case is whether that holding should be applied to final cases wherein the lower courts construed the statute differently and imposed trafficking convictions based on mixtures that did not contain a Schedule I or II drug. This issue is a pure question of law, subject to de novo review.

III. CLARIFICATIONS IN THE LAW

The United States Supreme Court in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), held that whereas a change in the law may be analyzed in terms of retroactivity, a clarification in the law does not implicate the issue of retroactivity. Petitioner Fiore was convicted of violating a Pennsylvania statute prohibiting the operation of a hazardous waste facility without a permit, even though the Commonwealth conceded that he in fact possessed a permit. The state supreme court declined review and the conviction became final. Subsequently, the state supreme court reviewed the case of Fiore’s codefendant, Scarpone, and held, on identical facts, that the statute had not been violated.

The United States Supreme Court granted certiorari in Fiore’s case and, after soliciting a response from the Pennsylvania Supreme Court, ruled as follows:

The Pennsylvania Supreme Court’s reply specifies that the interpretation of [the statute] set out in Scarpone “merely clarified” the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore’s conviction. Because Scarpone was not new law, this case presents no issue of retroactivity. Rather, the question is simply whether Pennsylvania can, consistently with the Federal Due Process Clause, convict Fiore for conduct that its criminal statute, as properly interpreted, does not prohibit.
This Court’s precedents make clear that Fiore’s conviction and continued incarceration on this charge violate due process. We have held that the Due Process Clause of the Fourteenth Amendment forbids a State to convict a person of a crime without proving the elements of that crime beyond a reasonable doubt. In this case, failure to possess a pennit is a basic element of the crime of which Fiore was convicted. And the parties agree that the Commonwealth presented no evidence whatsoever to prove that basic element. To the contrary, the Commonwealth, conceding that Fiore did possess a permit, necessarily concedes that it did not prove he failed to possess one.
The simple, inevitable conclusion is that Fiore’s conviction fails to satisfy the Federal Constitution’s demands.

Fiore, 531 U.S. at 228-29, 121 S.Ct. 712 (citations omitted).

It thus is clear under Fiore that, if a decision of a state’s highest court is a clarification in the law, due process considerations dictate that the decision be applied in all cases, whether pending or final, that were decided under the same version (i.e., the clarified version) of the applicable law. Otherwise, courts may be imposing criminal sanctions for conduct that was not proscribed by the state legislature.

Although Florida courts have not previously recognized the Fiore distinction between a “clarification” and “change,” we conclude that this distinction is beneficial to our analysis of Florida law. Previously, this Court analyzed such cases strictly under Witt v. State, 387 So.2d 922 (Fla.1980), and used the term “change” broadly to include what in fact were both clarifications and true changes. As explained in Fiore, however, a simple clarification in the law does not present an issue of retro-activity and thus does not lend itself to a Witt analysis. Whereas Witt remains applicable to “changes” in the law, Fiore is applicable to “clarifications” in the law.

IV. THE PRESENT CASE

In an effort to determine whether Hayes should be applied retroactively, we must ask, is Hayes a “clarification” or “change” in the law? A clarification is a decision of this Court that says what the law has been since the time of enactment. To determine whether a decision clarifies a statute, we first look to the decision itself to discern its intent. If the decision is silent or ambiguous on this point, we then look to the underlying statute to discern its intent. Where the Legislature cedes no discretion to the courts either directly or indirectly but instead employs definitive language that ordinarily requires no judicial construction, the Legislature intends that the statute be applied as enacted. A decision by this Court confirming the original intent is a clarification of extant law.

Hayes is such a clarification, because the Legislature, in formulating the trafficking statute, ceded no discretion to the courts either directly or indirectly with regard to the types and quantities of substances proscribed by the statute. Rather, the Legislature defined those properties with specificity at the time of enactment:

(c)l. Any person who knowingly sells, purchases, manufactures, delivers, or brings into this state, or who is knowingly in actual or constructive possession of, 4 grams or more of any morphine, opium, oxycodone, hydrocodone, hydro-morphone, or any salt, derivative, isomer, or salt of an isomer thereof, including heroin, as described in s. 893.03(l)(b) [i.e., Schedule I] or (2)(a) [i.e., Schedule II], or 4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture, commits a felony of the first degree, which felony shall be known as “trafficking in illegal drugs.”

§ 893.135(l)(c)l, Fla. Stat. (Supp.1996).

Each proscribed substance is identified in the statute and then defined in detail in Schedules I and II, which contain exhaustive technical descriptions of illegal drugs. Also, the proscribed quantities are clearly denoted in the trafficking statute itself: “4 grams or more” of any of the enumerated substances, or “4 grams or more of any mixture containing any such substance, but less than 30 kilograms of such substance or mixture.” The Legislature thus intended at the time of enactment for the courts to apply the trafficking statute strictly as written with regard to the types and quantities of proscribed substances.

The decision in Hayes is similar to the following cases cited above as clarifications in the law under Fiore:

(1) State v. Iacovone, 660 So.2d 1371 (Fla.1995) (holding that enhanced penalties for attempted second- and third-degree murder of a law enforcement officer were not authorized by statute); (2) Hale v. State, 630 So.2d 521 (Fla.1993) (holding that consecutive habitual offender sentences for crimes arising from a single criminal episode were not authorized by statute); and (3) Palmer v. State, 438 So.2d 1 (Fla.1983) (holding that consecutive mandatory minimum sentences for use of a firearm in crimes arising from a single criminal episode were not authorized by statute).

Supra note 8.

In the above cases, the Legislature used language that was intended to be clear on its face. The problem in those cases arose when lower courts construed the statutory language in a manner that was contrary to legislative intent. The key consideration is that, in construing the statutes contrary to legislative intent, the courts imposed criminal sanctions without statutory authority■ — i.e., they imposed criminal sanctions where none were intended. The rulings thus violated the Due Process Clause and all defendants convicted or sentenced without statutory authority were entitled to relief.

V. CONCLUSION

Our decision in Hayes v. State, 750 So.2d 1 (Fla.1999), is a clarification of extant law and, pursuant to the United States Supreme Court decision in Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), must be applied to final cases. Under section 893.135(1)(c)1, trafficking in a Schedule III drug or mixture thereof was never intended by the Legislature to be a crime.

The district court below analyzed our decision in Hayes in terms of its impact on the validity of criminal sentences in the various judicial districts, and the court remanded “for an evidentiary hearing to determine the validity of [Klay-man’s] sentence pursuant to Hayes v. State, and for resentencing if appropriate.” This was imprecise. Our decision in Hayes addressed the validity of a trafficking conviction, not a trafficking sentence. On remand, the trial court should conduct an evidentiary hearing to determine whether the “mixture” possessed by Klay-man contained a Schedule I or II drug; if not, his trafficking conviction must be reversed and sentence vacated.

We answer the certified question and approve Klayman v. State, 765 So.2d 784 (Fla. 4th DCA 2000), as explained herein.

It is so ordered.

ANSTEAD, C.J., and LEWIS and QUINCE, JJ., concur.

WELLS, J., dissents with an opinion, in which HARDING, Senior Justice, concurs.

PARIENTE, J., recused.

WELLS, C.J.,

dissenting.

This case presents the repeatedly vexing question of what is to be done in postcon-viction claims by an individual who has been convicted of a crime based upon an interpretation of a criminal statute when that conviction was final at the time the district court of appeal affirmed the conviction but, subsequently, the interpretation of the statute is determined by this Court to be incorrect. Does the subsequent opinion of this Court mean that the individual was convicted of a crime which became nonexistent by this Court’s later different interpretation of the criminal statute, or was the individual convicted of a crime which existed until such time as the law in the district where the individual was convicted was changed by this Court?

The answer to this vexing question obviously pits the judicial system’s necessity for systemic finality against the individual circumstances in a particular case. This Court made a decision and wrote a comprehensive opinion in 1980, discussing in detail the serious issues involved, and provided an analysis upon which retroactivity of decisional law is to be applied in post-conviction to all Florida criminal cases including death cases. The case in which this was done was Witt v. State, 387 So.2d 922 (Fla.1980). Today the majority in this Court erroneously abandons this analysis when applying this Court’s decisions that have changed a district court of appeal’s interpretation of the law. Therefore, I dissent.

I dissent not only because the majority abandons twenty-two years of applying Witt to these types of cases but also because the majority ignores the procedural concept under which the district courts of appeal were adopted in the 1950s and under which Florida’s court structure has operated since that time. The majority’s decision to apply Fiore v. White, 531 U.S. 225, 121 S.Ct. 712, 148 L.Ed.2d 629 (2001), to the instant case repudiates the concept that the decisions of the district courts are “final” decisions in respect to criminal appeals. Based on the majority’s decision in this case, every decision in which a district court has construed and applied a criminal statute is now “nonfinal” until the statute is ultimately “clarified” by this Court. Given this Court’s limited jurisdiction, this could occur years upon years after the district court has first construed the statute.

A plain reading of Fiore should show that it is not applicable to Florida’s court structure. In Fiore, the Supreme Court had asked the Pennsylvania Supreme Court, “Does the interpretation of [the statute there in question,] set forth in Commonwealth v. Scarpone, 535 Pa. 273, 279, 634 A.2d 1109, 1112 (1993), state the correct interpretation of the law of Pennsylvania at the date Fiore’s conviction became final?” Fiore, 531 U.S. at 228, 121 S.Ct. 712. In replying to that question, the Pennsylvania Supreme Court stated: “Our ruling merely clarified the plain language of the statute.... Our interpretation ... furnishes the proper statement of the law at the date Fiore’s conviction became final.” Id. (first omission in original). The Supreme Court then held:

The Pennsylvania Supreme Court’s reply specifies that the interpretation of [the statute] set out in Scarpone “merely clarified” the statute and was the law of Pennsylvania — as properly interpreted — at the time of Fiore’s conviction. Because Scarpone was not new law, this ease presented no issue of retroactivity.

Fiore, 531 U.S. at 228, 121 S.Ct. 712.

If this inquiry were made to this Court and this Court followed its precedent, it would answer that “the law” on the date that a defendant’s conviction became “final” was “the law” as it had been interpreted by the district court in the district in which the individual was convicted on the day of his conviction. It is because this would have to be the answer, based upon this Court’s precedent, that the majority now rewrites and effectively recedes from the contrary language and analysis in State v. Stevens, 714 So.2d 347 (Fla.1998), State v. Callaway, 658 So.2d 983 (Fla.1995), and Bass v. State, 530 So.2d 282 (Fla.1988). Majority op. at 252-53 n. 8. In fact, the majority also does the same in respect to McCuiston v. State, 534 So.2d 1144 (Fla.1988), and State v. Glenn, 558 So.2d 4 (Fla.1990).

Remarkably, in a Yogi Berra-like “deja vu all over again,” the majority, in reality, merely returns to a path which this Court started down before but then from which this Court appropriately receded. See Bass v. State, 12 Fla. L. Weekly 289 (Fla. June 11, 1987), withdrawn on reh’g, 530 So.2d 282 (Fla.1988). In its initial opinion in Bass, this Court addressed the issue of whether Palmer v. State, 438 So.2d 1 (Fla.1983), constituted “a change in the substantive law of sentencing or ... merely interpreted] pre-existing statutory law.” This Court stated:

[I]n Palmer, this Court merely interpreted statutory provisions and corrected errors in the imposition of a statute which existed prior to our decision in Palmer. That opinion did not announce any new changes in the law itself. It simply examined the statute and corrected mistakes in its implementation.
Because we believe that Palmer does not represent any change in law, we need not ... here consider whether Palmer should retroactively apply. Our determination that Palmer did not change the law of sentencing in any substantive way necessarily precludes examination of those issues.

Bass, 530 So.2d at 283.

Expressing the same concerns I now have, Justice Ehrlich dissented “[b]ecause the majority’s reasoning is both illogical and contrary to the proper understanding of this Court’s relationship to the district courts and because the result reached undermines society’s need for finality powerfully explicated in Witt.” Bass, 530 So.2d at 283 (Ehrlich, J., dissenting). Justice Ehrlich further stated:

The majority attributes controlling significance to the fact that Palmer did not “change” the law, but merely interpreted pre-existing statutory law. I respectfully suggest that this statement cannot withstand analysis.
The district courts of appeal are, in most instances, courts of last resort, Johns v. Wainwright, 253 So.2d 873 (Fla.1971), and the “decisions of the district courts of appeal represent the law of Florida unless and until they are overruled by this Court.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).
The decision of the First District Court of Appeal in Palmer was not a case of first impression, see Davis v. State, 392 So.2d 947 (Fla. 3d DCA 1980) (approving consecutive mandatory minimum three year sentences for robbery and kidnapping in spite of the defendant’s claim that both offenses arose from the same episode). Therefore, the district courts’ decisions in Palmer and Davis were the law in this state until this Court changed the law and interpreted the statute at issue contrary to the district courts’ interpretation.
Under the majority’s reasoning, however, we did not “change” the law! The fact that we took a contrary view of the statute at issue in Palmer than did the district courts clearly evidences that we did change the law in Florida on this issue. Taken to its logical conclusion, therefore, the majority holds that until this Court decides any issue, there is no extant law.

Bass, 530 So.2d at 283 (Ehrlich, J., dissenting).

The initial Bass decision caused immediate confusion in the district courts of appeal. In a detailed opinion in Hall v. State, 511 So.2d 1038, 1042 (Fla. 1st DCA 1987), Judge Zehmer expressed similar concerns about this Court’s effective abandonment of district court finality. Subsequently, this Court withdrew Bass and substituted a new Bass opinion, which held that Palmer should be applied retroactively. See Bass, 530 So.2d at 282. This Court explained the withdrawal of the first Bass opinion in McCuiston v. State, 534 So.2d 1144, 1146 (Fla.1988) (addressing whether Whitehead v. State, 498 So.2d 863 (Fla.1986), should be retroactively applied).

On September 1, 1988, this Court, on rehearing, withdrew its opinion in Bass and substituted a new opinion in lieu thereof. We maintained our position that Bass was entitled to relief but did so only on the basis that Palmer should be deemed to have retroactive application. That portion of our original opinion placing in doubt lower court constructions of sentencing statutes until approved or overruled by the Supreme Court which puzzled the First District Court of Appeal in Hall is not contained in our new opinion. Therefore, the determination of whether Whitehead has retroactive application should be decided upon traditional principles pertaining to changes in decisional law.

534 So.2d at 1146 (emphasis added). In McCuiston, this Court then proceeded to return to and perform a Witt analysis. See McCuiston, 534 So.2d at 1146-47.

In State v. Callaway, 658 So.2d 983 (Fla.1995), receded from on other grounds, Dixon v. State, 730 So.2d 265 (Fla.1999), this Court reaffirmed that Witt is the appropriate standard by stating:

[W]e note that the district court of appeal expressed some concern over whether this Court’s decision in Bass v. State, 530 So.2d 282 (Fla.1988), established a different standard than that expressed in Witt for determining whether a change of law should be applied retroactively to provide postconviction relief. In Bass, we found that it would be “manifestly unfair” not to retroactively apply the decision in Palmer .... The Bass opinion, however, did not address the principles of Witt, and this caused some confusion among the courts regarding the proper standard for determining-whether a change in law should be retroactively applied. We addressed this confusion in both McCuiston ... and State v. Glenn, 558 So.2d 4 (Fla.1990), and stated that Witt is “the controlling case by which to determine whether a change in decisional law should be applied retroactively.” Glenn, 558 So.2d at 7. We reaffirm our decisions in McCuiston and Glenn and again recognize that Witt provides the proper standard for determining whether a change in the law should be retroactively applied to provide postconviction relief under rule 3.850.

Callaway, 658 So.2d at 986 (emphasis added).

I conclude that Justice Erhlich was correct in his analysis in the dissent to the original Bass decision, which was acknowledged by this Court in 1988 in McCuiston and in 1995 in Callaway. Up until the present majority decision, with the exception of the brief life of the initial Bass opinion, the decisions of the district courts of appeal have been considered final decisions under Florida’s judicial structure. The law of those decisions can be changed by this Court in resolving district conflict or answering certified questions, but until that occurs, this Court has made clear that a district court’s decision is “the law.” Stanfill v. State, 384 So.2d 141, 143 (Fla.1980).

This Court has also made it clear that a decision of the district court must be applied to all trial courts unless there is an inter district conflict. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992). Therefore, under our procedure, the law of a district court as to a statute is the “law” and is to be applied as that court interprets it unless we change it. See Stanfill, 384 So.2d at 143. This Court has limited jurisdiction, and we cannot change the district court’s statutory interpretation unless there is a constitutionally specified basis for this Court to review the district court’s decision. See art. V, § 3(b)(1), (3)-(4), Fla. Const. Plainly, it was in recognition of and respect for this long-established constitutional limitation that, this Court rejected a clarification analysis in McCuiston. See McCuiston, 534 So.2d at 1146.

Without adherence to this concept, the law in Florida will be unsettled and unstable for many years. This Court has no power authorized by the constitution to reach down and assume jurisdiction in a case simply because a majority of this Court concludes that a district court’s construction of a criminal statute is wrong. See Mystan Marine, Inc. v. Harrington, 339 So.2d 200, 201 (Fla.1976) (“The jurisdiction of this Court extends only to the narrow class of cases enumerated in Article V, Section 3(b) of the Florida Constitution. Time and again we have noted the limitations on our review and have refused to become a court of select errors.”). Consequently, even if the majority of this Court believes that a district court’s decision is wrong, that decision remains the authoritative interpretation of that statute, which is to be applied by every trial court in Florida until another district court construes the statute with a conflicting interpretation or until a district court certifies a question about a case involving the statute to this Court. Therefore, a district court’s interpretation which this Court’s majority believes is wrong could hypothetically remain the authentic interpretation for the entire life of the statute or for many, many years until this Court accepts a case presenting express conflict or a certified question. Finally, even though a district court interprets a statute in conflict with another district court, the trial courts in a district which has interpreted the statute must apply their district court’s interpretation as “the law” until this Court exercises its discretion to accept a case or cases to resolve the conflict. See Stanfill, 384 So.2d at 143. It can only logically follow under Florida’s judicial structure that the decisions of the district courts of appeal are final interpretations until the law is changed by this Court.

Therefore, it is my conclusion that because this Court’s decision in Hayes v. State, 750 So.2d 1, 5 (Fla.1999), constitutes under our judicial structure a change in the law rather than a clarification of the then existing law, Fiore does not control the instant case. See Fiore, 531 U.S. at 228, 121 S.Ct. 712. The majority errs by abandoning Witt in these types of cases and returning to the confusion created by the brief life of the withdrawn Bass opinion. Moreover, to conclude that both Witt and Fiore apply in Florida hopelessly confuses our jurisprudence.

The question certified to this Court is whether this Court’s decision in Hayes, 750 So.2d at 5, should be given retroactive application. See Klayman, 765 So.2d at 785. Applying the appropriate test for determining whether a decision of this Court should be given retroactive application as established in Witt, a change in the law must: (1) emanate from this Court or the United States Supreme Court; (2) be constitutional in nature; and (3) constitute “a development of fundamental significance.” Witt, 387 So.2d at 931. I would conclude that Hayes should not be given retroactive application because it is not constitutional in nature. See id. at 929 (“We emphasize at this point that only major constitutional changes of law will be cognizable ....”); see also State v. Stevens, 714 So.2d 347, 349 (Fla.1998) (Harding, J., concurring) (“This does not mean that every case that invalidates a statutory offense based on statutory construction grounds will be constitutional in nature.”).

Hayes was patently a garden-variety statutory construction case, and there is not a single word in the Hayes decision about the constitution or any constitutional right. Cf. State v. Woodley, 695 So.2d 297 (Fla.1997) (refusing to retroactively apply State v. Gray, 654 So.2d 552 (Fla.1995), which held that attempted felony murder is logically impossible). Therefore, I would quash the Fourth District Court of Appeal’s decision in Klayman, 765 So.2d at 785. But even if this Court decides that Hayes should be retroactively applied, clearly that mistake would not equate to the substantial magnitude of the mistake constituted by abandoning Witt in cases where this Court has changed a district court’s interpretation of the law and erroneously introducing into our jurisprudence a Fiore analysis, which obviously does not apply.

HARDING, Senior Justice, concurs.

      . See § 893.135(l)(c)l, Fla. Stat. (Supp.1996). The statute was enacted in 1979. See ch. 79-1, § 1, at 9, Laws of Fla. It was amended in 1995 to include hydrocodone and several other drugs. See ch. 95-415, § 5, at 3417, Laws of Fla.

      . See Hayes, 750 So.2d at 2.

      . See id. at 2-3.

      . In the wake of Hayes, the Legislature in 2000 amended Schedule III to delete reference to hydrocodone, thus making four grams or more of hydrocodone, or four grams or more of any mixture containing hydrocodone, a Schedule II drug embraced by the trafficking statute, regardless of the dosage unit. See § 893.03(3), Fla. Stat. (2000). In 2001, the Legislature then reversed itself and reinstated certain quantities of hydrocodone as a Schedule III drug. See ch.2001-55, § 1, at 357, Laws of Fla.

      . See State v. Glatzmayer, 789 So.2d 297, 301-02 n. 7 (Fla.2001) ("If the ruling consists of a pure question of law, the ruling is subject to de novo review.”).

      . The Commonwealth argued that even though Fiore possessed a valid permit he nonetheless had deviated so dramatically from the permit's terms that he had violated the statute. See Fiore, 531 U.S. at 227, 121 S.Ct. 712.

      . This Court in Witt v. State, 387 So.2d 922 (Fla.1980), divided "changes” in the decisional law into two groups: "jurisprudential upheavals” and "evolutionary refinements” in the law. Jurisprudential upheavals are applied retroactively; evolutionary refinements in the law are not applied retroactively.

      . For instance, although this Court held that the following decisions warranted retroactive application under Witt, the decisions when viewed in light of Fiore appear to be routine statutory "clarification" cases, not "major constitutional changes of law” as required by Witt: (1) State v. Iacovone, 660 So.2d 1371 (Fla.1995) (holding that enhanced penalties for attempted second- and third-degree murder of a law enforcement officer were not authorized by statute); (2) Hale v. State, 630 So.2d 521 (Fla.1993) (holding that consecutive habitual offender sentences for crimes arising from a single criminal episode were not authorized by statute); and (3) Palmer v. State, 438 So.2d 1 (Fla.1983) (holding that consecutive mandatory minimum sentences for use of a firearm in crimes arising from a single criminal episode were not authorized by statute). See State v. Stevens, 714 So.2d 347 (Fla.1998) (applying Iacovone retroactively); State v. Callaway, 658 So.2d 983 (Fla.1995) (applying Hale retroactively); Bass v.

        State, 530 So.2d 282 (Fla.1988) (applying Palmer retroactively).

      . For example, the Legislature directly ceded to the courts the authority to formulate grounds for departing from the sentencing guidelines. See § 921.001(6), Fla. Stat. (2001) ("A court may impose a departure sentence outside the sentencing guidelines based upon circumstances or factors which reasonably justify the aggravation or mitigation of the sentence....”).

      . The Legislature may indirectly cede discretion to the courts by employing language that commonly requires judicial construction. Examples of such language include "careful and prudent,” "reasonable,” and "probable cause.” See, e.g., § 316.1925, Fla. Stat. (2001) ("Any person operating a vehicle upon the streets or highways within the state shall drive the same in a careful and prudent manner ....”) (emphasis added); § 856.015(2), Fla. Stat. (2001) ("No adult having control of any residence shall allow an open house party to take place at said residence if any alcoholic beverage or drug is possessed or consumed ... by a minor ... and where the adult fails to take reasonable steps to prevent the possession or consumption of the alcoholic beverage or drug.”) (emphasis added); § 933.04, Fla. Stat. (2001) ("[N]o search warrant shall be issued except upon probable cause (emphasis added).

      .As noted above, the trafficking statute was enacted in 1979 and was amended in 1995 to include hydrocodone and other drugs. See supra note 1.

      . Florida courts have held that imposition of criminal sanctions without statutory authority is fundamental error. See, e.g., Achin v. State, 436 So.2d 30, 31 (Fla.1982) ("We hold that one may never be convicted of a nonexistent crime....”); Mundell v. State, 739 So.2d 1201, 1202 (Fla. 5th DCA 1999) ("Although Mr. Mundell never objected to his conviction for this offense and even requested a jury instruction on this nonexistent offense, the error can be raised for the first time on appeal because the crime of which he was convicted does not exist.”); Fredericks v. State, 675 So.2d 989, 990 (Fla. 1st DCA 1996) ("Conviction of a non-existent crime is fundamental error mandating reversal even when the error was invited by the defendant.... ”); Ward v. State, 446 So.2d 267, 267 (Fla. 2d DCA 1984) ("Ward argues that attempted uttering is not an offense under Florida law. He is correct. Imposition of judgment and sentence for attempted uttering is fundamental error requiring reversal.”).

      . Postconviction claims for relief under Hayes must be filed within two years of the date mandate issues in the present case. Cf. Dixon v. State, 730 So.2d 265, 268-69 (Fla.1999) ("In view of the limited number of opinions that are given retroactive effect and the uncertainty that exists over whether a particular decision will be accorded retroactive effect, we consider it reasonable to calculate the two-year time period for eligible defendants to file their claims from the time our decision announcing retroactivity becomes final.”); see also id. at 267 n. 3 ("An opinion of this Court becomes final upon issuance of the mandate.”).


source: Caselaw Access Project

author: QUINCE, J. PARIENTE, J.,

license: Public Domain

text:
    STATE of Florida, Petitioner, v. John H. CARTER, Respondent.
    No. SC95605.
    Supreme Court of Florida.
    Dec. 5, 2002.

      Richard E. Doran, Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Karla D. Ellis, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Second Judicial Circuit, Tallahassee, FL, for Respondent.
   QUINCE, J.

We have for review Carter v. State, 24 Fla. L. Weekly D1063, — So.2d -, 1999 WL 289215 (Fla. 1st DCA April 30, 1999), which expressly and directly conflicts with Schwartz v. State, 719 So.2d 965 (Fla. 4th DCA 1998), and Strunk v. State, 728 So.2d 320 (Fla. 5th DCA 1999). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. Because the district court in Carter applied a per se rule to the question of whether the failure to file a single monthly report constitutes a substantial violation of probation, we quash and remand for reconsideration not inconsistent with this opinion. Although the First District’s decision may ultimately be correct, we reject any per se rule that the failure to file a single report may never justify probation revocation.

After pleading nolo contendere to aggravated battery, trespass, and misdemeanor stalking, John H. Carter (Carter) was sentenced in 1997 to nine months in jail followed by two years of probation. Thereafter, the State filed an affidavit for violation of probation charging Carter with five violations, including failure to file a report for the month of February 1998. He was found not guilty of all violations except the failure to file the report; Carter admitted that violation. The trial court revoked Carter’s probation and sentenced him to 54.9 months in state prison.

On appeal the First District Court of Appeal, relying on its earlier precedent, held that failure to file a single monthly report does not by itself constitute a substantial violation of probation. See Moore v. State, 632 So.2d 199 (Fla. 1st DCA 1994); accord Sanders v. State, 675 So.2d 665 (Fla. 2d DCA 1996). The First District acknowledged that its decision was in conflict with the decision by the Fourth District in Schwartz v. State, 719 So.2d 965 (Fla. 4th DCA 1998). This petition for discretionary review followed.

The State argues that the failure to file a single monthly report by itself may be a proper basis for revocation as was held in Schwartz and Strunk. We hold that failure to file a single monthly report may, in certain circumstances, justify probation revocation if such failure is willful and substantial and supported by the greater weight of the evidence. See High-tower v. State, 529 So.2d 726 (Fla. 2d DCA 1988).

In the instant case, the district court improperly applied a per se rule when it relied on Moore and Sanders in reaching its conclusion that the failure to file a single monthly report as a matter of law is not a substantial violation, and thus not sufficient to justify a probation revocation. Such a holding means that under no circumstances could a failure to file a single report justify a revocation of probation. Such a per se rule strips the trial court of its obligation to assess any alleged violations in the context of a defendant’s case. Trial courts must consider each violation on a ease-by-case basis for a determination of whether, under the facts and circumstances, a particular violation is willful and substantial and is supported by the greater weight of the evidence. In other words, the trial court must review the evidence to determine whether the defendant has made reasonable efforts to comply with the terms and conditions of his or her probation. See Thorpe v. State, 642 So.2d 629 (Fla. 1st DCA 1994); Stevens v. State, 599 So.2d 254 (Fla. 3d DCA 1992).

We agree with Judge Letts’ statements in his specially concurring opinion in Davis v. State, 474 So.2d 1246 (Fla. 4th DCA 1985) (Letts, J., specially concurring), that probation reports are not merely technical niceties and the failure to report is a serious violation of the privilege of probation. The probation system operates under a tremendous workload. In order to maintain its effectiveness, all participants, including the defendants, must comply with the requirements imposed upon them. Failure to enforce the reporting requirements undermines the system and the practical consequence is no control, no supervision, and no probation.

However, the application of these principles does not mean failure to comply in every instance is, a fortiori, a willful and substantial violation justifying revocation. Indeed, the initial decision to place someone on probation is a serious matter and is made by the trial court only after careful consideration. Likewise, the decision to revoke that probation should be made with no less care, and only when the probation violation is both willful and substantial so as to indicate that probation will not work for that defendant. There may be circumstances where revocation is patently unfair. For example, in Hightower v. State, 529 So.2d 726 (Fla. 2d DCA 1988), the record was not clear as to whether the defendant was informed that he had the duty to file a report, and in Jordan v. State, 412 So.2d 970 (Fla. 2d DCA 1982), the defendant filed three reports late because he was in the hospital. However, there are also circumstances where failure to file a single report may be a willful and substantial violation which would justify revocation. In Schwartz, the defendant argued that he did not file his monthly probation report because he was in an accident. The evidence showed that the defendant went to work after the accident, during the time he claimed to be incapacitated. The defendant’s failure to comply with the terms of probation was a blatant disregard of his probation obligations and the revocation was found to be justified.

These cases demonstrate why it makes sense to allow the trial court the discretion to weigh each situation without the mandates of a bright line rule requiring revocation or preventing it. The trial court is in a better position to identify the probation violator’s motive, intent, and attitude and assess whether the violation is both willful and substantial.

Carter filed his report late on purpose (which may constitute willful behavior), but he states that he did so because he wished to appear before the court to discuss his ability to make restitution. When he attempted to get help from the public defender’s office, he said they gave him the runaround. A friend told him to stop reporting, that he would then be in violation and would have to appear before the court, at which time he could address the issue of restitution. Although the probation officer may not have realized the consequences of her discussion with the defendant, she apparently tacitly endorsed this method. The probation officer testified that she told Carter that in order for a probationer to get back before the court, he or she would need either to get a public defender or violate probation. Since Carter felt he got the runaround from the public defender’s office, he then intentionally violated his probation by failing to file his report. Whether these actions rise to the level necessary to justify revocation is within the province of the trial court to determine. The trial court has broad discretion to determine whether there has been a willful and substantial violation of a term of probation and whether such a violation has been demonstrated by the greater weight of the evidence. See Van Wagner v. State, 677 So.2d 314 (Fla. 1st DCA 1996); Harris v. State, 610 So.2d 36 (Fla. 2d DCA 1992). The trial court in this case weighed the evidence and determined that Carter’s conduct warranted revocation.

On appeal from the trial court’s decision on the issue, the standard of review is abuse of discretion. See Bell v. State, 643 So.2d 674 (Fla. 1st DCA 1994); Steiner v. State, 604 So.2d 1265 (Fla. 4th DCA 1992). That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner in determining that Carter’s violation was both willful and substantial. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla.1980). In this case, the First District’s opinion states only that a single failure to file could not trigger revocation. Because we reject any per se rule that the failure to file a single report can never, alone, be a substantial violation so as to preclude revocation, we quash the First District’s decision and remand this case for reconsideration consistent with this opinion.

It is so ordered.

SHAW, WELLS, and LEWIS, JJ., and HARDING, Senior Justice, concur.

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

PARIENTE, J.,

dissenting.

I respectfully dissent. In my opinion, a failure to file a single monthly probation report, by itself, cannot serve as the basis for the revocation of probation. Therefore, I would affirm the First District’s decision in Carter v. State, 24 Fla. L. Weekly D1063, — So.2d -, 1999 WL 289215 (Fla. 1st DCA Apr.30, 1999).

Section 948.06, Florida Statutes (1997), provides for the revocation of probation and states:

Whenever within the period of probation or community control there are reasonable grounds to believe that a probationer or offender in community control has violated his or her probation or community control in a material respect, any law enforcement officer who is aware of the probationary or community control status of the probationer or offender in community control or any parole or probation supervisor may arrest or request any county or municipal law enforcement officer to arrest such probationer or offender without warrant wherever found and forthwith return him or her to the court granting such probation or community control.... The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or continue the probation or community control or place the probationer into a community control program.

(Emphasis supplied.)

The Florida Legislature has chosen not to define which violations are “material.” Accordingly, under the well established principles of statutory construction, this Court must give the term “material” its plain and ordinary meaning. See Green v. State, 604 So.2d 471, 473 (Fla.1992) This plain and ordinary meaning may be determined by reference to a dictionary definition. See id. “Material” is defined as “significant” or “essential,” Black’s Law Dictionary 991 (7th ed.1999), or as “having real importance or great consequence.” Merriam Webster’s Collegiate Dictionary 717 (10th ed.1996). Although the failure to submit one monthly report is certainly a violation of probation, I cannot agree with the majority that this single failure, by itself, could ever be significant or essential. Therefore, in the absence of legislative action to clarify which probation violations are “material,” I would follow those district courts that have held that this type of isolated technical probation violation does not rise to the level of a revocable violation. See e.g., Butler v. State, 775 So.2d 320, 321 (Fla. 2d DCA 2000); Sanders v. State, 675 So.2d 665, 665-66 (Fla. 2d DCA 1996) (citing Glenn v. State, 558 So.2d 513 (Fla. 2d DCA 1990)); Moore v. State, 632 So.2d 199, 199 (Fla. 1st DCA 1994).

Moreover, today’s majority decision gives little guidance to the trial courts as to when the failure to file a single report, standing alone, would be considered a material violation of probation warranting revocation. Further, the appellate standard of review of abuse of discretion provides little to no guidance to the appellate courts as to where the line of demarcation should be. This lack of guidance raises the real possibility that whether probation is revoked for failure to file a single report will not depend on an objective standard but on the philosophy of the individual judge. Given that the consequence of the decision in many cases will be a considerable period of incarceration, applying a per se rule that the failure to file a single monthly probation report without more cannot serve as the basis for the revocation of probation is the better course in this limited circumstance.

ANSTEAD, C.J., concurs.

      . Recently, in State v. Meeks, 789 So.2d 982 (Fla.2001), we held, under the youthful offender sentencing scheme, that only a new criminal offense constitutes a substantive violation of probation or community control. Under section 958.14, Florida Statutes (1995), the trial court must determine whether the offender has committed a technical or substantive violation. However, under the general sentencing scheme pertaining to this defendant, the question for the trial court is whether there has been a willful and substantial violation of the terms and conditions of probation.


author: BLUE, Chief Judge.

text:
    Paul E. HEMMY, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-138.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2001.
    Rehearing Denied Jan. 22, 2003.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Jennifer R. Haymes, Assistant Attorney General, Tampa, for Appellee.
   BLUE, Chief Judge.

Paul E. Hemmy appeals his habitual felony offender sentence. He asserts that there was insufficient evidence presented to support habitual felony offender sentencing. We agree and, accordingly, reverse and remand for resentencing.

Mr. Hemmy was sentenced on a burglary of a dwelling conviction to ten years in prison as a habitual offender. At sentencing, Mr. Hemmy’s counsel declined to stipulate that Mr. Hemmy qualified for habitual offender sentencing. Mr. Hem-my contends that the State then failed to establish both the requisite prior convictions and that he was the subject of those convictions. “The state must establish by affirmative evidence the identity of the accused as the person previously convicted of the predicate crimes.” Louis v. State, 647 So.2d 324, 325 (Fla. 2d DCA 1994). Additionally, as to an out-of-state conviction, the State must establish that it is “substantially similar in elements and penalties to an offense in this state.” § 775.084(1)(e), Fla. Stat. (1999). We have reviewed the record and agree that the State failed in both regards.

Accordingly, we reverse the habitual offender sentence and remand for a new sentencing hearing. Upon resentencing, Mr. Hemmy may again be sentenced as a habitual felony offender if the State can establish both the predicate convictions and the identity of Mr. Hemmy as the person named in those judgments of conviction.

Reversed for a new sentencing hearing.

GREEN and DAYIS, JJ., Concur.


author: PER CURIAM.

text:
    Octavius Maurice RUFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-2222.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2002.
    Rehearing, Rehearing En Banc and Certification Denied Jan. 31, 2003.

      Bennett H. Brummer, Public Defender, and Dorothy F. Easley, Special Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Frank J. Ingrassia (Ft.Lauder-dale), Assistant Attorney General, for ap-pellee.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Octavius Ruffin appeals his convictions for robbery with a firearm (count one) and conspiracy to commit robbery with a firearm (count four); and his sentence on the charge of conspiracy to commit robbery with a firearm. We affirm in part and reverse in part.

We affirm the defendant’s convictions without comment. However, we agree with the defendant that his sentence on the charge of conspiracy to commit robbery with a firearm is incorrect. The trial court adjudicated the defendant as a habitual violent felony offender and sentenced the defendant to concurrent sentences of thirty years with fifteen-year minimum mandatory sentences on counts one and four. Count four, the charge of conspiracy to commit robbery with a firearm is a second-degree felony. Under section 775.084(4)(b)(2), Florida Statutes (1998), the mandatory term of imprisonment for a habitual violent felony offender convicted of a second-degree felony is ten years.

Accordingly, we reverse the sentencing order and remand for the trial court to correct the habitual violent felony offender sentence on count four to reflect a ten-year minimum mandatory sentence instead of a fifteen-year minimum mandatory sentence.

Convictions affirmed; sentencing order reversed and remanded for resentencing.


author: SHEVIN, Judge. COPE, J.

text:
    BOCA INVESTORS GROUP, INC., Appellant/Cross-Appellee, v. Irwin POTASH; Stanley Cohen; Alexander Brodt; Ray Larsen; Suzanne Bosze; Bruce Youner; Murray Norkin; David Paresky; Ira Ostrow; Joe Slotnick; Robert E. Torter; Richard Voell; and Arnold Broser, Appellees/Cross-Appellants.
    No. 3D01-2587.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2002.
    Rehearing and Certification Denied Jan. 29, 2003.

      Richman Greer Weil Brumbaugh Mira-bito & Christensen, Miami, and Gerald F. Richman, and Gary S. Betensky, West Palm Beach, and Michael J. Napaleone; Bruce S. Rogow and Beverly A. Pohl, Fort Lauderdale, for appellant.
    Sacher, Zelman, Van Sant, Paul, Beiley, Hartman, & Waldman and Stanley A. Bei-ley, Miami; Mandel & McAliley and David S. Mandel and Bernard L. Egozi; Aragon, Burlington, Weil & Crockett and Robert K. Burlington and Ava J. Borrasso; Gil-bride, Heller & Brown and Lewis N. Brown and Terence M. Mullen; Genovese Joblove & Battista and David C. Cimo and Brett M. Amron; Holland & Knight and Daniel S. Pearson; Feldman Gale and Weber and Jeffrey D. Feldman and Lawrence S. Gordon; Gil Haddad; Billbrough & Marks and Geoffrey B. Marks; Guy Spiegelman; Kenny Nachwalter Seymour Arnold Critchlow & Spector and Michael Nachtwalter and Amanda M. McGovern; White & Case and Charles C. Kline and Darin A. DiBello; Hyman, Kaplan, Gan-guzza, Spector & Mars and Michael L. Hyman and Marc A. Halpern; Broad & Cassel and David A. Freedman; Samuel I. Burstyn; De La 0 & Marko and Miguel M. de la 0; for appellees.
    Before COPE, GODERICH and SHEVIN, JJ.
   SHEVIN, Judge.

Boca Investors Group, Inc., appeals an order dismissing its fourth amended complaint, entering judgment in defendants’ favor on the pleadings and denying its motion to amend the complaint. We affirm.

Boca Investors filed its tortious interference with a business relationship suit to recover damages suffered as a result of defendants’ filing three lawsuits that disrupted Boca Investors’ efforts to purchase Fisher Island property. Defendants moved for judgment on the pleadings based on absolute litigation privilege. The trial court granted the motion based on Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994).

In determining the viability of a litigation privilege challenge to a tortious interference with a business relationship claim, the Levin court held that:

absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement, or other tortious behavior such as the alleged misconduct at issue, so long as the act has some relation to the proceeding.

Id., at 608. Here, as in Levin, all of the acts alleged in support of the tortious interference claim bear a relationship to the proceedings instituted by defendants. “The privilege arises upon the doing of any act necessarily preliminary to judicial proceedings.” Burton v. Salzberg, 725 So.2d 450, 451 (Fla. 3d DCA 1999). Accordingly, those acts must be afforded absolute immunity. We, therefore, affirm the judgment. In addition, we also affirm the denial of the motion to amend the complaint to add a statutory anti-trust claim. Such a claim is also based on statements covered by the litigation privilege. See Burton, 725 So.2d at 451.

Affirmed.

GODERICH, J., concurs.

COPE, J.

(concurring).

I concur in the affirmance of the trial court’s judgment, but would add the following observations.

I entirely agree that the litigation privilege recognized in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Ins. Co., 639 So.2d 606 (Fla.1994), bars the tort claims asserted by plaintiff Boca Investors Groups, Inc. The three lawsuits Boca Investors is complaining about remain pending in the trial court. If Boca Investors can establish that there is baseless litigation, then Boca Investors may avail itself of any applicable remedy set forth in Levin. See id. at 608-09. Further, since the Levin decision cites with approval Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984), it is evident that the tort of malicious prosecution is available in a proper case — but such a malicious prosecution claim would be premature here, because the underlying litigation has not yet concluded.

The majority opinion accurately quotes Burton v. Salzberg, 725 So.2d 450 (Fla. 3d DCA 1999), an opinion which I joined. The opinion states, “The [litigation] privilege arises upon the doing of any act necessarily preliminary to judicial proceedings.” Id. at 451.

Although it does not make a difference in the present case, we misspoke in Burton in using the phrase “necessarily preliminary.” The “necessarily preliminary” phrase is no longer the legal test for privilege for presuit communications.

The precursor to the Levin litigation privilege was the absolute defamation privilege for statements made in a lawsuit. In a much-quoted decision, the Florida Supreme Court said that the defamation privilege:

extends to the protection of the judge, parties, counsel, and witnesses, and arises immediately upon the doing of any act required or permitted by law in the due course of the judicial proceedings or as necessarily preliminary thereto.

Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929) (emphasis added), receded from, in part in Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992). In Ange the court held that statements made in applying for a warrant were absolutely privileged, even though there was no pending criminal proceeding.

In Fridovich v. Fridovich, 598 So.2d 65 (Fla.1992), the Florida Supreme Court reconsidered the test to be applied to preliti-gation statements. After reviewing the law applied in the various jurisdictions in the United States, the court held that “defamatory statements voluntarily made by private individuals to the police or the State’s attorney prior to the institution of criminal charges are presumptively quali-fiedly privileged.” Id. at 69 (footnotes omitted). The court receded from Ange to the extent of the inconsistency. This means that the Florida Supreme Court has abandoned the “necessarily preliminary” test. Instead, the question of what privilege applies to presuit communications will evolve under case law, depending on the type of communication and the policy considerations involved.

In the present case,. Boca Investors complains primarily about three lawsuits which were actually filed, plus certain presuit communications. The presuit communications were communications between the plaintiff condominium owners, potential plaintiffs, and counsel.

I concur with the majority opinion that those communications are protected by the Levin litigation privilege.

      . In a subsequent decision, the Fourth District has given the "necessarily preliminary" phrase a technical reading. See Pledger v. Burnup & Sims, Inc., 432 So.2d 1323, 1327 (Fla. 4th DCA 1983).


author: SHARP, W., J. HARRIS, J., PER CURIAM.

text:
    Helen M. CARUSO, Individually and on behalf of Crystal Grubbs, a minor, Appellant, v. Earl BAUMLE, Appellee.
    No. 5D01-2114.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2002.
    Order Denying Rehearing, Granting Certification of Questions Jan. 3, 2003.

      D. Paul McCaskill and Jeffrey M. Byrd of Jeffrey M. Byrd, P.A., Orlando, for Appellant.
    Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., and Lourdes Calvo-Pa-quette of Law Offices of Robert Soifer, Orlando, for Appellee.
   SHARP, W., J.

Helen M. Caruso, individually and on behalf of Crystal Grubbs, a minor, asserts the trial court erred in ruling that appel-lee, Earl Baumle, could proceed to conduct post-trial discovery and present his evidence post-trial regarding the defense of PIP setoff benefits to the trial judge in a jury case. This lawsuit grew out of a 1998 automobile accident in which appellants were injured and received PIP benefits. Appellee admitted liability.

Our initial view of this case was that although the applicable statutes are unclear as to how, when and to whom PIP setoff defenses should be proven, the appellants in this case had waived this issue by agreeing with the trial judge that the judge would determine the amount of the judgment by deducting the setoffs at a later proceeding. However, an additional review of the record convinces us there was no waiver.

Counsel for appellants/plaintiffs below, Jeffrey Byrd, consistently argued that Baumle must submit evidence of PIP set-offs during the trial, although the trial court would later make the calculations and deduct those sums from the final award made by the jury. During the post-trial proceedings, Byrd again objected to Baumle’s introduction of post-trial evidence concerning the PIP setoff defense on the ground Baumle had proffered at trial only objected-to-hearsay evidence of the setoffs and that it was then too late to prove that affirmative defense.

The trial judge stated:

I am clear you’re not waiving. You clearly made your objection and I don’t want to suggest in any way that you’re waiving the objection by anything that I have said or anything you do, but I am still saying that the Defendant, if it wants to benefit from an off-set for PIP payments has to establish how much the PIP payments are and you do that post-judgment. You ordinarily start out by submitting an affidavit from somebody who says these are what the records show we paid out....

The judge then told defense counsel to file an affidavit on PIP payments and let Byrd look at it:

And let me make absolutely clear by— this procedure is over Mr.Byrd’s previous objection and is not in any way to be construed as a waiver of his objection that the collateral source information has to be produced at trial, before the jury renders its verdict or before the jury leaves the courtroom or sometime or the other prior to today. When do you want it, at trial, before the jury retires, I suppose?
Mr. Byrd: Sir, I believe it’s appropriate that a party proffer it during their ease in chief before they rest.
The Court: Before the jury — well, during the evidentiary phase of the trial. Mr. Byrd: Yes, sir.
The Court: Even though not presented to the jury.
Mr. Byrd: Yes, sir.
The Court: All right. So your point is clear ...
The Court: The question is: Do you have to present the collateral source information during trial or not? And the answer is not. You present it after-wards. Now present it. Put it in affidavit form and present it. I’ve ruled on it and let’s go on.

Based strictly on an analysis of the collateral source statutes, this ruling is probably erroneous.

The common law rule on collateral sources has been altered by statute. See Sheffield v. Superior Insurance Co., 800 So.2d 197 (Fla.2001); Allstate Insurance Co. v. Rudnick, 761 So.2d 289 (Fla.2000). Unfortunately, these statutes have been inconsistent in their treatment of collateral sources.

For example, sections 627.7372 and 768.76 are both entitled “Collateral Sources of Indemnity.” Section 627.7372(1), Florida Statutes (Supp.1992) provided:

(1) In any action for personal injury or wrongful death arising out of the ownership, operation, use, or maintenance of a motor vehicle, the court shall admit into evidence the total amount of, all collateral sources paid to the claimant, and the court shall instruct the jury to deduct from its verdict the value of all benefits received by the claimant from any collateral source, (emphasis added)

Section 768.76(1), Florida Statutes (2001) provides:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury, (emphasis added)

These two statutes clearly conflict in their treatment of collateral sources. Section 768.76 requires the court to reduce the damage award by the collateral source payments. Section 627.7372 requires that evidence of collateral source payments be presented to the jury during trial and the jury deduct those payments from its verdict.

Section 768.76 is contained in Part II of chapter 768, which governs damages in negligence actions. It is a general provision that authorizes the court to reduce the damage award by the collateral source payments. Kirkland v. Allstate Insurance Co., 655 So.2d 106 (Fla. 1st DCA 1995). Section 672.7372 was the collateral source provision of the Florida Motor Vehicle No-Fault Law. Urbanak v. Hinde, 497 So.2d 276 (Fla. 3d DCA 1986). Since section 672.7372 was specifically directed at tort actions involving motor vehicles, the courts held for automobile accident cases, this section controlled over the general collateral source statute. Barberena v. Gonzalez, 706 So.2d 60 (Fla. 3d DCA 1998); Kirkland; White v. Westlund, 624 So.2d 1148 (Fla. 4th DCA 1993). See also Budnick.

In 1993, section 627.7372 was repealed. Ch. 93-245, § 3, Laws of Fla. Thus presumably the general collateral source statute (section 768.76) will control, even in automobile cases unless another more specific statute applies.

The present case involves another more specific collateral source statute, seetion 627.736(3). The issue here concerns introduction of evidence of PIP benefits for purposes of a setoff. PIP benefits are collateral sources. Rollins; Rudnick. In Rollins, the Florida Supreme Court held that section 627.736(3) applies to the setoff of PIP benefits. McKenna v. Carlson, 771 So.2d 555 (Fla. 5th DCA 2000).

Section 627.736(3), Florida Statutes (2001) provides:

(3) INSURED’S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN TORT CLAIMS. — No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit. An injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405, or his or her legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his or her special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable, (emphasis added)

Sections 627.736 and 627.7372 are both contained in Part XI (Motor Vehicle and Casualty Insurance Contracts) of chapter 627. Section 627.7372(1) required the jury to deduct collateral source benefits from its verdict. Likewise, section 627.736 requires the trier of fact not to award damages for PIP benefits.

In cases involving section 627.7372(1), the courts reversed setoffs where the defendants failed to present evidence of collateral source payments to the jury. Bar-berena; Kirkland. This principle should also apply to cases involving section 627.736(3). Logically, if the defendant neglects to present evidence of the plaintiffs PIP benefits, the jury cannot be faulted for failing to consider those payments in its award.

Citing to both sections 627.736(3) and 768.76(1) in Allstate Insurance Co. v. Scott, 773 So.2d 1290 (Fla. 5th DCA 2001), this court stated that a party asserting the defense of PIP benefit setoffs was not required to introduce that evidence during the course of the jury trial. But the court did not address the differences between the two statutes or reconcile the obvious assumption in -section 627.736(3) that the “trier of fact” will hear evidence of the PIP setoffs, be it judge or jury, and that the jury will be instructed plaintiffs cannot recover such PIP benefits paid or payable. In a recent case, our sister court has ruled that in motor vehicle accident cases, a collateral source instruction regarding PIP payments and benefits should be given to the jury. Bogosian v. State Farm Mutual Auto. Ins. Co., 817 So.2d 968 (Fla. 3d DCA 2002).

We are bound by the Allstate case. However, we write to point out there is an ambiguity in the statutes which needs to be addressed by the Legislature.

AFFIRMED.

SAWAYA, J., concurs.

HARRIS, J., concurring specially with opinion.

HARRIS, J.,

concurring specially.

I agree this is an affirmance but I disagree that appellant did not waive having the evidence of collateral source payments introduced post trial. It is true that section 627.7372(1), Florida Statutes provides that the jury shall deduct the collateral source payments from the benefits derived from the verdict. In that regard, the evidence relating to collateral source payments must be presented during trial so that the jury can make the deduction. But the appellant did not wish for the jury to make the deduction or that information relating to collateral source payments go to the jury, but instead insisted that the evidence should be presented for the judge’s eyes only during trial and that the court should then make the determination post trial. Here is the discussion between appellant’s counsel and the court:

THE COURT: I agree. But you are talking about a determination that is going to be made subsequently.
COUNSEL: Yes, sir. But the proof must be offered at trial, not subsequent to trial.
THE COURT: If PIP is going to be offered during the trial, then you are going to be asking the jury to ...
COUNSEL: No, sir. Perhaps I am not being clear.
* * *
THE COURT: It’s not going to be part of the evidence presented to the jury.
COUNSEL: That’s correct, sir.

Appellant’s counsel clearly waived the right to have the jury deduct the collateral source payments from its award. This, I believe, is the important waiver. The only reason for putting the evidence in during trial is so that the jury will have such evidence for its determination. If the court is to determine the appropriate set-off, it should have the discretion to receive the proper evidence at the time it determines the issue. It is difficult to see how appellant was prejudiced by the court receiving the evidence of collateral source payments, the sufficiency of which is not challenged, post trial (instead of at trial) when it was determining the amount for setoff.

ON MOTION FOR REHEARING, CLARIFICATION OR CERTIFICATION

PER CURIAM.

On motion for rehearing, we adhere to our opinion issued in this case, but we certify to the Florida Supreme Court as questions of great public importance, the following:

IN AN AUTOMOBILE ACCIDENT CASE, DOES SECTION 627.736(3) REQUIRE THAT EVIDENCE OF PIP BENEFITS FOR PURPOSES OF SET OFF BE PRESENTED TO THE TRIER OF FACT, BE IT JUDGE OR JURY, AND IF A JURY, MUST THE JURY BE INSTRUCTED THAT THE PLAINTIFF SHALL NOT RECOVER SPECIAL DAMAGES FOR PERSONAL INJURY PROTECTION BENEFITS PAID OR PAYABLE?
OR, PURSUANT TO THAT STATUTE AND ABSENT A WAIVER OR AN AGREEMENT BY THE PARTIES, MAY A PARTY, ASSERTING SET OFF OF PIP BENEFITS, INTRODUCE THAT EVIDENCE AFTER A JURY TRIAL TO THE JUDGE FOR A FACT FINDING OF AMOUNTS INVOLVED, AND FOR PURPOSES OF REDUCING THE PLAINTIFF’S RECOVERY?

Appellant’s Motion for Rehearing and Clarification is DENIED; Motion for Certification GRANTED; Questions CERTIFIED.

SHARP, W., SAWAYA, JJ., and HARRIS, C., Senior Judge, concur.

      . In Rollins, the Florida Supreme Court noted that section 627.7372 had been repealed and "the general collateral source statute is now found in section 768.76, Florida Statutes (1999).” (emphasis added) Rollins, 761 So.2d at 296, n. 2. This suggests that section 768.76 replaced the repealed section 627.7372. This is incorrect as section 768.76 existed prior to the repeal of section 627.7372. There was merely a minor amendment to section 768.76(1) in 1993. Ch.93-245, § 1, Laws of Fla.
      Section 627.736(3) was substantially reworded as part of the 1976 amendments to the PIP statute. These changes replaced the complicated system of equitably distributing PIP benefits with a system under which the plaintiff could plead and prove his special damages but the trier of fact’ could not award PIP benefits paid or payable. See Ch.76-266, § 4, Laws of Fla.; Rollins, 761 So.2d at 299.
      As part of the Tort Reform and Insurance Act of 1986, the legislature repealed section 768.50 (the medical malpractice collateral source statute) and created section 768.76. Ch.86-160, §§ 55, 68, Laws of Fla. Both the repealed section 768.50 and the newly created section 768.76 provided for the court to reduce the award by the amount of collateral source payments.

      . The accident here occurred in 1998.

      . Fla. R.App. P. 9.030(A)(2)(A)(v).


author: KELLY, Judge.

text:
    Alvin HOWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1627.
    District Court of Appeal of Florida, Second District.
    Nov. 6, 2002.
    Rehearing Denied Jan. 23, 2003.
   KELLY, Judge.

Alvin Howard appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Mr. Howard raised seven claims. We affirm the denial of claims one, two, three, six, and seven without discussion. We reverse the denial of claims four and five, which assert ineffective assistance of counsel.

Mr. Howard was charged with burglary of a dwelling and convicted of attempted burglary of a dwelling. He was sentenced to ten years in prison as a habitual felony offender and to a five-year mandatory minimum as a prison releasee reoffender.

In his fourth claim, Mr. Howard asserted that he committed a completed burglary, and that there was no evidence of an attempted burglary. He claimed his counsel should not have acquiesced to the giving of an instruction on attempted burglary.

Attempted burglary is not a necessarily lesser included offense of burglary of a structure or burglary. It is a category two lesser included offense. See Standard Jury Instructions in Criminal Cases, 723 So.2d 123 (Fla.1998). An instruction on a category two lesser included offense is permissible only if the language of the charging document and the evidence in the case support the charge. See State v. Johnson, 601 So.2d 219, 220 (Fla.1992).

The limited record suggests that the evidence supported a completed burglary, not an attempt. Also because of the limited record, we cannot ascertain whether defense counsel acquiesced, failed to object, or perhaps affirmatively requested the instruction on attempted burglary. The record does not contain the information, the jury charge conferences, the actual jury instructions given, or the portions of trial testimony relevant to this claim.

Therefore, we reverse. On remand, if the trial court determines the claim should be summarily denied, it should attach portions of the record that demonstrate conclusively that Mr. Howard is not entitled to relief. See Armstrong v. State, 806 So.2d 547 (Fla. 2d DCA 2001).

In his fifth claim, Mr. Howard asserted his defense counsel also was ineffective for conceding guilt to attempted burglary of a dwelling in closing argument, and for doing so without his specific consent. A concession of guilt to a lesser charge can at times be good strategy and within defense counsel’s discretion. See Atwater v. State, 788 So.2d 223, 230-231 (Fla.2001). A trial court’s finding that some action or inaction by defense counsel was tactical is generally inappropriate without an evidentiary hearing. See Flores v. State, 662 So.2d 1350, 1351 (Fla. 2d DCA 1995). Under the circumstances present here, we reverse and remand for an evidentiary hearing on this claim.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and STRINGER, JJ., concur.


text:
    Patricia Pollak WEISS, Appellant, v. Phyllis Pollak BERKETT, etc., Appellee.
    No. 3D02-609.
    District Court of Appeal of Florida, Third District.
    Nov. 6, 2002.
    Rehearing En Banc and Certification Denied Jan. 31, 2003.
    Patricia Poliak Weiss, in proper person.
    Hirschhorn & Bieber and Joel Hirsch-horn, Coral Gables, for appellee.
    Before FLETCHER and RAMIREZ, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Patricia Pollack Weiss appeals a surcharge judgment entered in connection with her trusteeship over several testamentary trusts. After a thorough review of the record and the applicable law, we find no reversible error in the proceedings below. We do, however, accept appellee’s concession of error with regard to the computation of the amount surcharged and remand for the sole purpose of correcting the judgment to reflect the amount of the surcharge as $1,676,377.73. In all other respects, the judgment is affirmed.


text:
    Antolin RUIZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3446.
    District Court of Appeal of Florida, Fifth District.
    Nov. 26, 2002.
    Rehearing Denied Jan. 24, 2003.
    Antolin Ruiz, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See McCallister v. State, 716 So.2d 821 (Fla. 4th DCA 1998).

COBB, SHARP, W., and PALMER, JJ., concur.


author: FLETCHER, Judge.

text:
    Iris MACHIN, etc., Appellant, v. WALGREEN CO. a foreign corporation, Appellee.
    No. 3D01-3432.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Rehearing, Rehearing En Banc and Certification Denied Jan. 31, 2003.
    Friedman & Friedman; Lauri Waldman Ross, Miami, for appellant.
    Walton Lantaff Schroeder & Carson and Kenneth L. Valentini and Jenessa M. Bil-lone, for appellee.
    Before COPE, FLETCHER and LEVY, JJ.
   FLETCHER, Judge.

Iris Machín, on behalf of her daughter Melanie, has appealed a final judgment, arguing that there was insufficient evidence to support the assessment of 45% comparative negligence on part of Machín. We affirm the final judgment.

Machín took her 3-month-old daughter to her pediatrician for treatment of a mouth ailment. The pediatrician diagnosed Melanie as having thrush, a common children's yeast infection, for which she prescribed Nystatin, an antifungal oral suspension. Machin took the prescription to a Walgreen pharmacy to be filled. The Walgreen pharmacist incorrectly dispensed Triotann, the generic substitute not for Nystatin, but for the antihistamine-decongestant Rynatan. Along with the Triotann dispensed to Machin, the Wal-greeris pharmacist provided Machin with a data sheet advising that she was receiving Triotann and that it is a generic substitute for Rynatan. Nowhere on the data sheet (or the medicine container) did there appear the name Nystatin.

Machin gave the erroneously dispensed medicine to her daughter without first assuring — by reading the data sheet or having it read for her' — that the actually dispensed medicine was the one her pediatrician prescribed. Melanie stopped eating and developed sleep problems. The thrush worsened. When this was reported to the pediatrician she discovered that the Walgreen pharmacist had dispensed the wrong medication. Removed from the wrong medication and properly treated, Melanie’s thrush infection disappeared quickly, but she continued to experience a lack of appetite and sleeping disorders for months thereafter.

At trial Walgreen contended that Ma-chin was negligent by paying no attention to the data sheet, an examination of which would have quickly informed Machin that the prescription was not what the doctor ordered. Machin testified that she trusted her pediatrician and the pharmacy and therefore had no duty to do anything to assure that she was feeding her child the correct medicine. The jury found Machin comparatively negligent to the extent of 45% fault for her daughter’s condition. The trial court denied Machin’s renewed motion for directed verdict and entered judgment accordingly.

First, we state the obvious: that parents have a constant and continuous duty as ordinary, prudent persons to watch over, supervise, and protect their children who are too young to exercise judgment to care for themselves. Orlando Sports Stadium Inc. v. Gerzel, 397 So.2d 370 (Fla. 5th DCA 1981). Persons chargeable with a duty of care and caution toward children must take the precautions which are available to them. Bagdad Land & Lumber Co. v. Boyette, 104 Fla. 699, 140 So. 798 (1932). Here, Machin was clearly in the position to assure that the dispensed medication was that prescribed by the pediatrician. She was handed a document, Walgreeris data sheet, containing the information that would have informed her that the medicine dispensed was not the right one. The name Nystatin was not to be found on the data sheet, whereas the name Rynatan and its generic, Triotann, were. The principal purpose of such data sheets is to inform the purchaser which medicine is being placed in his or her hands so that the purchaser can be assured that the prescription has been filled properly.

Machin also contends that she was not negligent because she was not aware of the name of the medicine prescribed by the pediatrician. This does not relieve her from her parental duty. It was incumbent upon her to take the simple steps of inquiring of the pediatrician the name of the prescribed medicine, checking the data sheet and the container of the actually dispensed medicine, then contacting her pediatrician when she discovered (as she would have done) the discrepancy.

We are not here faced with a situation in which a pediatrician prescribed the wrong medicine, which would have given the parent little or no opportunity to assure that the child was receiving the correct medicine. Rather we are dealing here with a situation in which the parent had the clear opportunity to perform her parental duty but did not do so. Accordingly we affirm the final judgment.

Affirmed.

      . Machin does not read or speak English, a fact which does not dilute or negate any duty she has toward Melanie.


text:
    Ron P. CASTRO, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and McLane Suneast, Incorporated, Appellees.
    No. 2D02-720.
    District Court of Appeal of Florida, Second District.
    Dec. 4, 2002.
    Rehearing Denied Jan. 27, 2003.
    Ron P. Castro, pro se.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Appellee McLane Su-neast, Incorporated.
   PER CURIAM.

Ron Castro challenges the dismissal of his appeal to the Florida Unemployment Appeals Commission (UAC). The UAC dismissed the appeal upon finding that it was untimely filed. We conclude that the late filing of the notice of appeal deprived the UAC of jurisdiction to consider Mr. Castro’s appeal. See Helms v. Fleetwood Homes of Fla., Inc., 802 So.2d 380 (Fla. 2d DCA 2001) (affirming UAC order affirming appeals referee’s dismissal of appeal as untimely and noting that section 443.151(4)(b)3, Florida Statutes (1995), does not provide for any exceptions). We therefore affirm the dismissal order.

FULMER, SALCINES, and STRINGER, JJ., Concur.


author: SHARP, W., J.

text:
    Ira Clifford BURKE, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3192.
    District Court of Appeal of Florida, Fifth District.
    Dec. 6, 2002.
    Rehearing Denied Jan. 27, 2003.

      Ed Tilton, Gainesville, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Clifford Burke (Burke) appeals a final judgment and sentence after a jury found him guilty of one count of lewd or lascivious molestation of a child, an eight year old female. He was sentenced to fifteen years in the Department of Corrections, and designated a sexual predator. Burke complains that the lower court erred in admitting Williams rule evidence because the prior and instant offenses were not sufficiently similar, and the earlier offense was too remote in time. He also argues that the trial court erred in permitting into evidence a videotaped interview between the child-victim and a detective because it was cumulative of the child’s testimony at trial. We affirm.

Burke testified that after he had a disagreement with his wife he went to a nearby lake to cool off and drink some beer. Shortly thereafter, he went to a baseball park looking for his family, but was told that they were not there. He got into his Bronco, but had an urge to urinate that was so strong, he couldn’t wait. He parked his Bronco in a parking area, and left to find a bathroom. He saw some dumpsters and two men urinating between the dumpsters. He proceeded to the bathroom (a unisex, temporary toilet), but when he tried the door, someone else (the victim) was inside with the door locked.

He then went back towards his car past the dumpsters, and noticing that no one else was about, he decided to relieve himself and began urinating by the dumpsters. At this point, Burke claimed that the victim, who was looking for her family, approached and surprised him while he was urinating. She began to scream “rape” and “kidnap,” and she began running. Burke said he was unable to calm or catch her, so he headed for his Bronco.

The victim’s version was that she had gone to the ballpark with her aunt, cousin and an older girl, Samantha. Samantha had taken her to the bathroom and was waiting for her. However, unbeknown to the victim, Samantha got tired of waiting and left with another girl. When the victim exited the bathroom, she began calling and looking for Samantha and her family. Burke heard her and told the victim “she’s over here.” He then grabbed her from behind and began touching her inappropriately, but she struggled and freed herself, running away.

In 1979, Burke was convicted of committing the same offense on another child. Prior to the trial in this case, the state sought to introduce evidence of this earlier conviction as similar fact evidence, and a Williams rule hearing was held. The victim of the 1979 offense, the detective that investigated that case, and a woman who was a witness and called for help, testified at the Williams rule hearing. After the hearing, the court permitted evidence of the 1979 offense to be introduced.

The witnesses’ description of the 1979 offense, when compared with the events in the instant case, establish the two offenses were factually similar on the following points: (1) prior to committing both offenses, Burke had had family problems; (2) Burke had been drinking beer immediately prior to the time of both offenses; (3) at the time of the crimes, the child victims were approximately the same age; (4) both children were in a public place (a park and a baseball complex) when approached by Burke; (5) both were children alone; (6) both children were upset at having been separated from their families, and were looking for them; (7) Burke offered to help both children look for their families; (8) Burke attempted to get both children into secluded areas; and (9) Burke grabbed both children and put his hand over their mouth during the offenses.

There was only one difference between the two offenses. In the 1979 offense Burke unzipped his pants and touched and licked the victim’s vagina. However in the instant case, Burke did no more than grab the victim from behind and put his hand over her mouth, allegedly touching her genital area. Burke claims that the two offenses are thus distinguishable. However, the victim in this case struggled and escaped Burke after he grabbed and touched her, and he did not have an opportunity to further pursue his offense as he did in the 1979 case. This difference is but a difference in opportunity, as noted in Chandler v. State, 702 So.2d 186, 193 (Fla.1997).

The facts surrounding the 1979 offense and conviction are sufficiently similar to be admissible as Williams Rule evidence under section 90.404. See Chandler v. State, 702 So.2d 186 (Fla.1997); Titel v. State, 788 So.2d 286 (Fla. 4th DCA 2000).

However, where child molestation is involved, section 90.404(2) broadens the admissibility of similar fact evidence. The statute provides:

(b)l. In a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant, (emphasis added)

Burke’s testimony was that the victim was mistaken and that he was only acting to help her. The inference was that viewing him urinate had frightened her and she overreacted by screaming rape and kidnap. The collateral crime evidence was relevant to rebut Burke’s testimony and to show his intent, plan, scheme, absence of mistake, and modus operandi, Zack v. State, 753 So.2d 9 (Fla.2000); Irons v. State, 791 So.2d 1221 (Fla. 5th DCA 2001); Geske v. State, 770 So.2d 252 (Fla. 5th DCA 2000). Thus, the trial court properly admitted this evidence.

We also disagree that the evidence regarding the 1979 offense is too remote in time because it occurred twenty-two years prior to the instant offense. The remoteness of a prior crime is one aspect of relevance, which tends to prove or disprove a material fact. Duffey v. State, 741 So.2d 1192, 1197 (Fla. 4th DCA 1999); § 90.404(2)(a). In a claim of remoteness, the trial court must consider not just the passage of time, but also the effect of the passage of time on the evidence. Heuring v. State, 513 So.2d 122, 123 (Fla.1987); Duffey. Remoteness precludes the use of evidence that has become unverifía-ble through loss of memory, unavailability of witnesses, and other similar problems. Heuring at 124. Admission of remote evidence is within the trial court’s discretion. Duffey.

The victim, the detective and a witness testified to the facts in the 1979 case. Their memories and recall were clear and cohesive. The passage of time did not taint the evidence or prejudice Burke in any way, and the trial court did not abuse its discretion in admitting this evidence.

Burke’s last claim is also without merit. The victim in this case gave live testimony at the trial. Burke argues that admission of a video-taped interview between the victim and a detective from the Putnam County Sheriffs Office was cumulative or duplicative, and was improperly admitted.

Admission of cumulative evidence, rarely constitutes grounds for a new trial. Sin gleton v. State, 783 So.2d 970, 976 (Fla.2001); Sims v. State, 754 So.2d 657, 662 (Fla.2000) (cumulative evidence presented insufficient to warrant new trial). See also Carrillo v. State, 727 So.2d 1047, 1048 (Fla. 2d DCA 1999); Evans v. State, 473 So.2d 745 (Fla. 2d DCA 1985). We find that the trial court did not abuse its discretion in admitting the evidence challenged in this appeal.

AFFIRMED.

HARRIS and ORFINGER, R.B., JJ„ concur.

      . § 800.04, Fla. Stat. (2001).

      . Williams v. State, 110 So.2d 654 (Fla.1959).

      . Section 90.404(2) provides:
      (a) Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan knowledge, identity or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.


text:
    Tony Lee NIX, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-273.
    District Court of Appeal of Florida, Fifth District.
    Dec. 17, 2002.
    Rehearing Denied Jan. 29, 2003.
    Kurt Erlenbach of Kurt Erlenbach, P.A., Titusville, for Appellant.
    Richard E. Doran, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. Stat. § 38.10 (2001); Fla. R. Judicial Admin. 2.160(c); Lett v. State, 805 So.2d 950 (Fla. 2d DCA 2001).

PETERSON, PLEUS and PALMER, JJ., concur.


text:
    Michael J. McENERY, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Newberg Irrigation, Inc., Appellees.
    No. 2D01-5762.
    District Court of Appeal of Florida, Second District.
    Dec. 18, 2002.
    Rehearing Denied Jan. 29, 2003.

      Michael J. McEnery, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee UAC.
    No appearance for Appellee Newberg Irrigation, Inc.
   BLUE, Chief Judge.

Michael J. McEnery appeals the denial of unemployment compensation benefits based on a finding that he voluntarily left his job without good cause. Because McEnery left work due to illness, which constitutes good cause, we reverse.

The appeals referee found that McEn-ery resigned. We accept this finding because it was supported by competent, substantial evidence. See Sienkiewicz v. Intrepid Powerboats, Inc., 774 So.2d 739, 740 (Fla. 2d DCA 2000).

If the employer meets the burden of showing an employee’s voluntary departure, the employee must prove that he left for good cause in order to qualify for unemployment benefits. Lewis v. Lakeland Health Care Ctr., Inc., 685 So.2d 876, 878 (Fla. 2d DCA 1996). Good cause “includes only such cause as is attributable to the employing unit or which consists of illness or disability of the individual requiring separation from his or her work.” § 443.101(1)(a)(1), Fla. Stat. (2000). “[T]he law permits an illness ... to be a good cause for voluntarily leaving a job.” Lewis, 685 So.2d at 879 (internal quotation marks omitted). Based on the competent, substantial evidence showing that McEn-ery left work because of illness, we reverse the denial of unemployment compensation benefits.

Reversed and remanded.

CASANUEVA and KELLY, JJ., concur.


text:
    Christina RIAL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1424.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.

      Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Christina Rial appeals from an order of revocation of probation and community control and sentence. For the following reasons, we reverse.

Defendant entered into a plea agreement whereby she pled guilty to the charges brought against her in exchange for two years community control followed by ten years probation, with a special condition that she complete the Start program and then enter the Passageways program. Both the Start and Passageways programs are non-secure mental health facilities.

After completing the Start program, Defendant entered Passageways. Shortly thereafter, defendant asked to leave the program. Defendant’s community control officer told her that if she left Passageways, she would be in violation of probation. Defendant absconded three weeks later, but returned after five days.

After a hearing, the trial court found that defendant willfully violated her probation by absconding from Passageways and sentenced defendant to thirty years in prison. As the terms of defendant’s probation did not require that she complete the Passageways program, but only that she enter it, the trial court erred in finding that defendant violated her probation when she absconded from the program. See Carter v. State, 763 So.2d 1091, (Fla. 4th DCA 1999) (holding probation should not be revoked for failure to complete when a condition of probation does not require completion or have a time limit). See also Bingham v. State, 655 So.2d 1186 (Fla. 1st DCA 1995). Defendant satisfied the conditions of her probation by completing the Start program and entering Passageways. Requiring that defendant complete the Passageways program constitutes “an unauthorized and impermissible upward modification of [defendant’s] probation conditions.” Bell v. State, 643 So.2d 674, 675 (Fla. 1st DCA 1994).

Accordingly, defendant’s probation and community control should not have been revoked. Reversed.