author: BENTON, J.

text:
    SEPRO CORPORATION, Appellant/Cross Appellee, v. FLORIDA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Appellee/Cross Appellee, and Griffin, L.L.C., Appellee/Cross Appellant.
    No. 1D02-0213.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Rehearing Denied March 20, 2003.

      W. Douglas Moody, Jr., Esquire of Myers and Fuller, P.A., Tallahassee, for Appellant/Cross Appellee SePRO Corporation.
    Teri L. Donaldson, General Counsel; Stacey D. Cowley, Senior Assistant General Counsel, Tallahassee, for Appellee/Cross Appellee Florida Department of Environmental Protection.
    Susan L. Kelsey, Esquire and Karen D. Walker, Esquire of Holland and Knight, LLP, Tallahassee, for Appellee/Cross Appellant Griffin, L.L.C.
   BENTON, J.

SePRO Corporation (Sepro) filed in circuit court seeking to block disclosure of asserted trade secrets, in response to a public records request that Griffin, L.L.C. (Griffin) had addressed to the Florida Department of Environmental Protection (DEP). Before entering the order under review, the trial court allowed Griffin to intervene in support of the request that sparked the lawsuit. To the extent the trial court denied Sepro relief, Sepro has appealed. To the extent the trial court granted Sepro relief, Griffin has taken a cross-appeal. We affirm.

I.

Sepro was under contract to DEP to give certain assistance in eradicating hy-drilla from specified lakes, when Griffin made its request for public records in DEP’s custody, including those relating to Sepro “and its provision of fluridone and/or related services ... [and] the effectiveness of Sonar [and Avast!] brand fluri-done in treating hydrilla, including but not limited to, the results of any tests performed by the Department or any third-party.”

After Griffin made its public records request, Sepro’s counsel wrote DEP that some of the information Sepro had furnished DEP should be deemed trade secrets. See generally § 403.111(1), Fla. Stat. (2002). Upon learning of Griffin’s request, Sepro wrote DEP designating as trade secrets: “(1) Any ReMetrix Bathy-metric, Biosonic or Vegetation study; (2) Any ReMetrix Biomass study; (3) Any SePRO prescriptive treatment formula for [specified] Florida lakes and water bodies.” DEP advised Sepro that it intended to disclose the documents to Griffin nevertheless, and would presumably have done so if Sepro had not filed suit to prevent disclosure.

In its complaint for declaratory judgment and motion for supplemental relief, Sepro claimed that “studies, sampling and analysis related to the tolerance of hydrilla to Fluridone treatments, water body movements, Fluridone concentrations, proposed Fluridone treatment prescriptions; and vegetation studies related to the type, density and location of various invasive plant species affecting Florida water bodies treated with Fluridone” had been furnished to DEP “on a limited and select basis solely for the purpose of allowing the Department’s scientist to confirm the efficacy of its Fluridone Treatment Program” and were entitled to “ ‘trade secret’ protection.” These filings were not required by law. On appeal, no party has attached any significance to whether DEP actually contracted for these studies, samples or analy-ses. The complaint invoked sections 403.111, 688.002, 812.081 and 815.045, Florida Statutes (2000).

With regard to documents (including some that had been transmitted electronically) that were not labeled confidential, Jeffrey David Schardt, a DEP employee, testified at the evidentiary hearing, “I don’t recall us getting anything in writing from SePRO regarding confidential.” But Mr. Schardt did testify that he was orally “asked to use the information like the information that was ... marked confidential.”

Whether or not the documents not labeled confidential contain all the information necessary to gauge the efficacy of Sepro’s efforts under the contract is not clear. In any event, the trial court entered the order under review concluding that certain documents (again including some e-mail) did “not contain information that meets the definition of ‘trade secret’ under § 812.081, Florida Statutes, because SePRO failed to timely mark the documents as confidential prior to the Department receiving a public records request.”

II.

Inasmuch as it “is the policy of this state that all state, county, and municipal records shall be open for personal inspection by any person,” § 119.01(1), Fla. Stat. (2002), the failure to identify information furnished to a state agency as putatively exempt from public disclosure effectively destroys any confidential character it might otherwise have enjoyed as a trade secret. Both statutory definitions of trade secrets to which the parties have referred us require this conclusion. See §§ 688.002(4)(b) & 812.081(l)(c), Fla. Stat. (2002). Section 812.081(l)(c), Florida Statutes (2002), broadly defines trade secrets as encompassing

the whole or any portion or phrase of any formula, pattern, device, combination of devices, or compilation of information which is for use, or is used, in the operation of a business and which provides the business an advantage, or an opportunity to obtain an advantage, over those who do not know or use it. “Trade secret” includes any scientific, technical, or commercial information, including any design, process, procedure, list of suppliers, list of customers, business code, or improvement thereof. Irrespective of novelty, invention, patenta-bility, the state of the prior art, and the level of skill in the business, art, or field to which the subject matter pertains, a trade secret is considered to be:
1. Secret;
2. Of value;
3. For use or in use by the business; and
4. Of advantage to the business, or providing an opportunity to obtain an advantage, over those who do not know or use it,

but only “when the owner thereof takes [reasonable] measures to prevent it from becoming available to persons other than those selected by the owner to have access thereto for limited purposes.” Id. See generally Am. Red Cross v. Palm Beach Blood Bank, Inc., 143 F.3d 1407, 1410-11 (11th Cir.1998); Lee v. Cercoa, Inc., 433 So.2d 1, 2 (Fla. 4th DCA 1983). To like effect, section 688.002(4), Florida Statutes (2002), provides:

“Trade secret” means information, including a formula, pattern, compilation, program, device, method, technique, or process that:
(a) Derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use; and
(b) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

The trade secret owner who fails to label a trade secret as such, or otherwise to specify in writing upon delivery to a state agency that information which it contends is confidential and exempt under the public records law is not to be disclosed, has not taken measures or made efforts that are reasonable under the circumstances to maintain the information’s secrecy. As a practical — and therefore as a legal — matter, a conversation with a state employee is not enough to prevent the information’s being made available to anybody who makes a public records request.

III.

The final order also concluded that all information “that SePRO adequately and timely” identified as “confidential, by stamping such documents as ‘confidential’ at the time the documents were submitted to DEP” was “trade secret information under the definition of ‘trade secret’ in § 812.081, Florida Statutes, and that such documents are confidential and exempt from the public disclosure mandate of § 119.07(1) pursuant to the exemptions in §§ 815.04(3) and 815.045, Florida Statutes.” On cross-appeal, Griffin contends that not a single one even of the documents marked confidential when furnished to DEP qualifies as a trade secret exempt from disclosure as public records.

Initially, it is clear that a private party cannot render public records exempt from disclosure merely by designating information it furnishes a governmental agency confidential. Neither the desire for nor the expectation of non-disclosure is determinative. See Shevin v. Byron, Harless, Schaffer, Reid and Assocs., Inc., 379 So.2d 633, 635 (Fla.1980). Sepro concedes the point: “Indisputably, marking a document ‘confidential’ does not make the information a trade secret.” Sepro’s Reply and Answer Brief, p. 9. “It is of no consequence that [a party furnishing information] wishes to maintain the privacy of particular materials filed with the department, unless such materials fall within a legislatively created exemption to Ch. 119, F.S.” Op. Att’y Gen. Fla. 90-104, at 323 (1990). See also Ops. Att’y Gen. Fla. 95-58, at 179-80 (1995) & 80-31, at 79 (1980).

What is now codified as section 815.045, Florida Statutes (2002), was originally codified as section 119.165, Florida Statutes (Supp.1994), as part of the Public Records Law. While Section 815.045, Florida Statutes (2001), reads more like a statement of legislative intent than a conventionally phrased provision of positive law, it makes its intended effect clear, in providing:

The Legislature finds that it is a public necessity that trade secret information as defined in s. 812.081, and as provided for in s. 815.04(3), be expressly made confidential and exempt from the public records law because it is a felony to disclose such records. Due to the legal uncertainty as to whether a public employee would be protected from a felony conviction if otherwise complying with chapter 119, and with s. 24(a), Art. I of the State Constitution, it is imperative that a public records exemption be created. The Legislature in making disclosure of trade secrets a crime has clearly established the importance attached to trade secret protection. Disclosing trade secrets in an agency’s possession would negatively impact the business interests of those providing an agency such trade secrets by damaging them in the marketplace, and those entities and individuals disclosing such trade secrets would hesitate to cooperate with that agency, which would impair the effective and efficient administration of governmental functions. Thus, the public and private harm in disclosing trade secrets significantly outweighs any public benefit derived from disclosure, and the public’s ability to scrutinize and monitor agency action is not diminished by nondisclosure of trade secrets.

The original placement in Chapter 119 evinces a contemporaneous view that the exemption from the public records disclosure requirements that section two of chapter 94-100, Laws of Florida (1994), enacted applies to more than computer data, programs or supporting documentation. Just as the trial court ruled, the language of this provision should be read to exempt from disclosure as public records all trade secrets as defined in section 812.081(l)(c), Florida Statutes (2001), whether or not they are stored on or transmitted by computers.

Although we recognize that the provision is currently codified in a chapter entitled “Computer-Related Crimes,” the original codifier’s broader view of the statute is more in keeping with the breadth of the rationale the statute articulates. See § 11.242(5)(e), Fla. Stat. (2002) (“Any section ... may be transferred from one location to another.”) and § 11.242(5)(h), Fla. Stat. (2002) (“[Alterations ... not affecting the construction or meaning of the statutes or laws, may be freely made.”). See generally Enslein v. Gere, 497 So.2d 705, 706 (Fla. 4th DCA 1986). Also militating in favor of a broader view of the exemption’s reach is the provision’s separate reference to section 812.081, a reference which would be superfluous if the exemption were intended to apply only to computer data, programs or supporting documentation exempted by section 815.04(3)(a).

Section 815.04(3)(a), Florida Statutes (2001), on which the order under review also relies, provides:

Data, programs, or supporting documentation which is a trade secret as defined in s. 812.081 which resides or exists internal or external to a computer, computer system, or computer network which is held by an agency as defined in chapter 119 is confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. I of the State Constitution.

Id. Defining trade secrets by reference to section 812.081 (l)(c), Florida Statutes (2001), section 815.04(3)(a) plainly covers electronic mail.

The trial court found that all of the documents, including electronic mail, that Sepro had designated confidential fell within the criteria set out in section 812.081. This finding necessarily rests on factual determinations that are assailable on appeal only if unsupported by competent, substantial evidence. David Paul Tarver’s testimony provided more than adequate support for the court’s findings that the criteria were met.

Affirmed.

KAHN and LEWIS, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re the COMMITMENT OF Louis SANTIAGO, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-2194.
    District Court of Appeal of Florida, Second District.
    Feb. 19, 2003.
    Rehearing Denied March 20, 2003.
    Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jennifer R. Haymes and Marilyn Muir Beccue, Assistant Attorneys General, Tampa, for Appellee.
   PER CURIAM.

The issues raised in Louis Santiago’s petition for writ of certiorari are controlled by this court’s recent opinion in Smith v. State, 827 So.2d 1026 (Fla. 2d DCA 2002). In accord with Smith, we grant the petition, vacate the trial court’s order, and remand for further proceedings.

DAVIS and COVINGTON, JJ., and GREEN, OLIVER L., Senior Judge, Concur.


author: STEVENSON, J. HAZOURI, J.,

text:
    Richard FISHER, M.D., Appellant, v. Claudia SMITHSON, John Smithson and Eric Smithson, a minor, by Claudia Smithson and John Smithson, as natural guardians and next of kin, Appellees.
    No. 4D02-1946.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Rehearing Denied March 25, 2003.

      Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Fort Lauderdale, for appellant.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, for appellees.
   STEVENSON, J.

This appeal involves the issue of whether the trial judge abused her discretion in granting the plaintiffs’ motion for new trial based on the trial judge’s conclusion that the jury’s verdict was contrary to the weight of the evidence. The primary liability issue at trial centered around whether the defendant, Dr. Fisher, should have recognized that Claudia Smithson’s symptoms were related to a cardiac condition and ordered testing and treatment therefor. Smithson suffered a heart attack shortly after being seen by Dr. Fisher and treated for what Dr. Fisher concluded was a gastric condition. At the hearing on the motion for new trial, the trial judge reflected on the testimony adduced at trial and concluded that the verdict was contrary to the manifest weight of the evidence. After considering the expert testimony and other evidence presented at trial, the trial judge concluded that Dr. Fisher should have recognized that Smithson’s symptoms were cardiac related and should have ordered appropriate testing and treatment. The trial judge found that the jury’s verdict finding no liability on the part of Dr. Fisher was against the manifest weight of the evidence. We affirm.

Appellant argues that the trial judge abused her discretion because she granted the motion for new trial merely because she didn’t like the fact that the jury took only fifteen to twenty minutes to deliberate on this complex medical malpractice case. Certainly, the length of time within which a jury confers is not in and of itself sufficient grounds to grant a new trial. See Park v. Belford Trucking Co., 165 So.2d 819, 823 (Fla. 3d DCA 1964); see also Miner v. McKesson Corp., 784 So.2d 1156 (Fla. 2d DCA), review dismissed, 791 So.2d 1099 (Fla.2001). In the instant case, the contention that the trial judge granted the motion for new trial only because of the length of time that the jury deliberated is not fully borne out by the record. Although the trial judge said that she “might” not have granted the motion for new trial had the jury took longer to deliberate, these comments must be interpreted as no more than extraneous judicial musings in light of her clear and definite statement that the verdict was contrary to the weight of the evidence as she perceived it during the trial. Here, we conclude that the trial judge did not abuse her broad discretion in ruling on the motion for new trial and affirm. See Brown v. Estate of Stuckey, 749 So.2d 490, 497 (Fla.1999)(stating that the trial judge’s broad discretion permits the granting of a new trial even though it is not “clear, obvious, and indisputable that the jury was wrong”).

AFFIRMED.

FARMER, J., concurs.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. The majority relies on Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999), for affirmance and although Brown affords wide latitude in the trial judge exercising her discretion in the granting of a new trial based on the jury’s verdict being contrary to the manifest weight of the evidence, that discretion is not unbridled.

The instant case involves a medical malpractice action in which the issues of negligence and causation were hotly contested in a one week jury trial. The jury deliberated for approximately 15-20 minutes before arriving at a verdict for the defendant below (Dr. Fisher). Following the publishing of the verdict, the trial judge directed the clerk to poll the jury. In response to the inquiry by the clerk ... “is this your verdict?” each juror answered in the affirmative. After the jury was discharged, the trial judge made the following statement: “The court will enter judgment on the record when counsel prepares it, and the court makes its finding of fact in accordance with the jury’s findings in exactly the same manner.”

The transcript of the hearing on the Motion for New Trial reflects that although the trial judge asserts that she granted the motion because the verdict was contrary to the manifest weight of the evidence, she was very troubled by the length of time of jury deliberations and that was in fact the primary basis for granting the new trial. She repeatedly acknowledges that expert witnesses for both parties disagreed and many issues were “close questions.” She also repeatedly made reference to the short time of the jury’s deliberation.

At the conclusion of the hearing, the trial judge stated: “I don’t want to analyze the evidence as a juror and I want to weigh if (sic) I think it meets the standard manifest weight of the evidence without a directed verdict. Had the jury taken longer to deliberate, I might not have granted this motion. For those reasons, that’s my ruling.” The majority suggests that this statement must be interpreted as no more than extraneous judicial musings. To the contrary, the “judicial musings” are the trial judge’s attempt to justify granting the new trial without articulable and sustainable reasons. With the issues of negligence and causation being hotly contested, and with expert testimony supporting each side, I fail to understand how the verdict could be contrary to the manifest weight of the evidence. Saying that this verdict is contrary to the manifest weight of the evidence does not make it so.

The length of time of the jury’s deliberation has no bearing on whether the verdict is contrary to the manifest weight of the evidence, and is not a basis for granting a new trial. Therefore, I dissent.


author: FARMER, J. SHAHOOD, J.,

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellant, v. SUN-SENTINEL, INC., Appellee.
    No. 4D02-4466.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      Lorraine M. Novak, Tallahassee, for appellant.
    John R. Hargrove and Dana J. McElroy of Heinrich, Gordon, Hargrove, Weihe & James, P.A., Ft. Lauderdale, and David S. Bralow, Senior Counsel Florida Media Tribune Co., Orlando, for appellee.
   FARMER, J.

In this action by a newspaper to gain access to public records concerning the care of minor children, the trial judge determined that the circuit court in Palm Beach County had jurisdiction of the matter, that formal service of process against the agency maintaining the records in Palm Beach County was unnecessary, and that venue was proper here. We affirm in all respects.

The State of Florida brought a criminal prosecution against certain parents accusing them of criminal neglect of minor children. While the criminal case was pending, the Sun-Sentinel filed a petition with the judge presiding over the criminal case seeking access to investigative files maintained by the Florida Department of Children and Families (DCF) concerning these children. Sun-Sentinel served DCF electronically with a fax copy of the petition. On the next day, DCF filed a motion to dismiss the petition, arguing insufficiency of process, lack of jurisdiction in the court, and improper venue. The trial court denied the motion in all respects.

We agree with Sun-Sentinel that in this instance DCF waived its challenge to the sufficiency of service by seeking a transfer of venue to Leon County. See Babcock v. Whatmore, 707 So.2d 702 (Fla.1998) (holding that defendant waives challenge to personal jurisdiction by seeking affirmative relief because such requests are logically inconsistent with initial defense of lack of jurisdiction); Hubbard v. Cazares, 413 So.2d 1192, 1193 (Fla. 2d DCA 1981), rev. denied, 417 So.2d 329 (Fla.1982) (request for change of venue following timely challenge to personal jurisdiction is request for affirmative relief constituting waiver of jurisdictional challenge).

We find no error with the trial court’s denial of a change of venue. Although it is true that ordinarily a state agency has a common law right under the general venue statute to be sued only in the county where it has its headquarters— in this instance, Leon County — that right does not apply here. One of the permissible bases for venue under the general venue statute is the place where the property in litigation is located. In this case, the documents to which access is sought are being maintained by DCF here in Palm Beach county. Sun-Sentinel seeks no judgment against DCF or the State of Florida respecting money or its official, non-record-keeping policies. Instead, it merely seeks to exercise its right of access to public records maintained within the jurisdiction of the circuit court. In the cases upholding the “home court” privilege of agencies of the state government, almost universally they involve actions seeking judgment directly against the agency for money damages or for declaratory relief binding the agency in regard to some policy or practice of the agency itself. See, e.g., Fla. Pub. Serv. Comm’n v. Triple “A” Enters., Inc., 387 So.2d 940, 942 (Fla.1980); Carlile v. Game & Fresh Water Fish Comm’n, 354 So.2d 362, 366 (Fla.1977); Dep’t of Cmty. Affairs v. Holmes County, 668 So.2d 1096, 1102 (Fla. 1st DCA 1996); Navarro v. Barnett Bank of West Fla., 543 So.2d 304 (Fla. 1st DCA 1989).

We think it would severely burden the right of access to public records to require that all such actions in court to vindicate that right be deemed within the home court privilege of state government. To do so is to require all those seeking access to inspect records actually maintained in an applicant’s home county elsewhere to tread their way to Tallahassee to bring a judicial proceeding just to settle the right to do so. There is absolutely nothing in the Public Records laws to suggest such an interpretation of the general venue statute, and everything implicit in the Public Records laws indicates that such a burden was never intended.

The home court privilege of public agencies is a judicially created embellishment on the general venue statute. Bd. of County Comm’rs of Madison County v. Grice, 438 So.2d 392, 394 (Fla.1983) (“Florida is one of the jurisdictions in which the home county venue privilege for government bodies is derived from judicial development of the common law rather than legislative act.”). None of the policies that motivated the adoption of the home court privilege are present in this case. These policies are seen in Smith v. Williams, 160 Fla. 580, 35 So.2d 844 (1948), where the court explained:

“[I]n order to promote orderly, efficient, and economical government, controversies involving the proper interpretation to be given rules and regulations promulgated by state agencies ought to be concentrated at the seat of state government where such state agencies are located, where such rules and regulations are promulgated, and where such suits can be defended at a minimum expenditure of effort and public funds. Such concentration of litigation manifestly makes for uniformity of interpretation of rules and regulations promulgated by such state instrumentalities and prevents conflicting judicial rulings in different jurisdictions resulting in decrees binding only in the counties where rendered and serving only to protect parties to the suits from the operation only of unlawful acts shown to have been actually committed within such particular jurisdictions.”

Id. at 847. In Carlile, the court added that “[the privilege] promotes orderly and uniform handling of state litigation and helps to minimize expenditure of public funds and manpower.” 354 So.2d at 364. As the court made clear in Grice:

“courts [have] recognized that even under modern venue statutes the right of governmental defendants to insist on venue at their headquarters is not absolute. Modern methods of communication and transportation have weakened the policy reasons supporting the privilege while current crowded court docket conditions have strengthened the policy reasons for avoiding duplicative litigation if possible.” [c.o.]

438 So.2d at 394. In Grice the court waived its judicially created home court privilege in a case in which the governmental agency was being sued as a joint tortfeasor, saying there would otherwise have to be duplicative proceedings in different counties. If that reason is sufficient to waive the home court privilege, surely the circumstances here are even more so. It is access to public records maintained locally that this state agency has denied.

As the supreme court made clear in Carlile in its recognition of exceptions to the home court privilege:

“Under exceptional circumstances, a complainant may be entitled to sue a public official or board in a county other than that of his or its official residence. One recognized exception to the rule exists where an unlawful invasion of a lawful right secured to the plaintiff by the Constitution or laws of the jurisdiction is directly threatened in the county where the suit is instituted. Parties seeking relief from alleged threats to their personal and property rights by the operation of unconstitutional acts of an agency of the state may bring suit in the county where the alleged wrongs are threatened or alleged to have been committed.”

Carlile, 354 So.2d at 365-66. The exception we apply today is proper because this governmental agency, DCF, has denied the right of inspection of public records in Palm Beach County, not in Leon County. The agency performed its act of denial here, not at the home office. Here is where the legal action to rectify that denial should take place.

Hence we think the correct use of the general venue statute in a case involving access to public records entirely located in one county is that such an action may be brought where the records are being kept and where access is being denied.

AFFIRMED.

WARNER, J., concurs.

SHAHOOD, J., concurs in part and dissents in part with opinion.

SHAHOOD, J.,

concurring in part and dissenting in part.

I concur with the majority that in this case the Department waived its challenge to the sufficiency of service by filing a motion for change of venue to its home county, Leon County.

I disagree, however, with the majority with respect to the second issue raised. I would hold that the trial court erred in denying the Department’s motion for change of venue. “Governmental defendants in Florida have a common law ‘home venue privilege’ to be sued in the county where they maintain their principal headquarters.” Jacksonville Elec. Auth. v. Clay County Util. Auth., 802 So.2d 1190, 1192 (Fla. 1st DCA), rev. dismissed, 821 So.2d 293 (Fla.2002). “Absent waiver or application of an identified exception, the home venue privilege appears to be an absolute right.” Id. Florida courts have allowed only three exceptions to the home venue privilege: (1) waiver by statute; (2) when a governmental body is sued as a joint tortfeasor; and (3) “sword-wielder” doctrine-when the plaintiffs constitutional rights are in “real and imminent danger” of invasion by a state agency. See id. Since none of the stated exceptions apply to the facts of this case, a change in venue was proper.

      . See § 119.07(7), Fla. Stat. (2002).

      . The criminal case was dismissed a few days before the court entered the order denying the motion to dismiss.

      . See § 47.011, Fla. Stat. (2002) (actions may be brought only in county where defendant resides, cause of action accrued, or property in litigation is located).


text:
    Ernesto BEHRENS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-3326.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Ernesto Behrens, Blountstown, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999), rev. denied, 763 So.2d 1044 (Fla.2000).

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    Harry GREGG, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2325.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Harry Gregg, Crestview, pro se.
    Charlie Crist, Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

Appellant, Harry Gregg, appeals from an order summarily denying his motion for postconviction relief, filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial without further discussion as to the third ground for relief, but we reverse and remand as to the first and second grounds of appellant’s motion.

On June 23, 2000, appellant entered a negotiated plea to one count of lewd, lascivious, or indecent act, for an offense committed on October 1, 1996, and was sentenced, pursuant to his agreement, to sixty months in prison followed by thirty-six months of sex offender probation. The first two grounds of his rule 3.850 motion were (1) ineffective assistance of counsel in utilizing a rule 3.991(a) sentencing guidelines scoresheet, which showed a guidelines range of 87 to 145 months, instead of a rule 3.990(a) scoresheet, in light of Heggs v. State, 759 So.2d 620 (Fla.2000)(sustaining a constitutional challenge to the 1995 sentencing guidelines, enacted by chapter 95-184, based on violation of the single subject rule); and (2) involuntary plea, in that appellant was advised that his permitted sentencing was 87 to 145 months pursuant to the unconstitutional scoresheet, instead of a permitted sentencing range of 46.5 to 79.5 months pursuant to a proper scoresheet, which precluded him from making a decision as to whether it was in his best interest to enter a nolo contendere plea or proceed to jury trial, and but for which he would not have entered his plea but would have proceeded to trial.

Appellant’s offense was committed within the window period announced in Trapp v. State, 760 So.2d 924 (Fla.2000)(holding that those persons with standing to challenge their sentences under Heggs were those whose offenses were committed on or after October 1, 1995, and before May 24,1997).

While it is clear that appellant is not entitled to automatic resentencing under Heggs, the facts he alleged did state a sufficient claim for the withdrawal of his plea on the grounds that it was involuntary because it was based on a mistaken understanding that he was receiving a downward departure sentence. See Carvello v. State, 824 So.2d 202 (Fla. 4th DCA 2002)(revers-ing order summarily denying rule 3.850 motion seeking relief from sentence, asserting that basis for plea agreement was imposition of downward departure sentence; however, sentence imposed was not a downward departure under the relevant 1994 guidelines, but fell within 1994 guidelines).

On this point, we certify conflict with Foster v. State, 794 So.2d 731 (Fla. 3d DCA 2001)(denying motion for postconviction relief claiming plea was involuntary where movant alleged he would not have entered plea but would have gone to trial if he had been given a correctly calculated 1994 scoresheet because his sentence could have been imposed pursuant to the 1994 guidelines); and Booker v. State, 771 So.2d 1187 (Fla. 1st DCA 2000)(holding relief is precluded under Heggs where challenged sentence could have been imposed under the 1994 guidelines and appellant alleged that unconstitutional 1995 guidelines rendered plea involuntary), review dismissed, 804 So.2d 328 (Fla.2001). We note that the Second District has certified conflict with Booker in Murphy v. State, 773 So.2d 1174 (Fla. 2d DCA 2000)(affirming denial of motion for resentencing to bottom of 1994 guidelines, where plea was for sentencing at bottom of 1995 guidelines and prison sentence received under 1995 guidelines was within 1994 guidelines, but providing that affirmance was without prejudice to appellant’s filing rule 3.850 motion challenging voluntary and intelligent nature of his plea).

The State attempts to distinguish Car-vello in that Carvello did not include an assertion of ineffective assistance of counsel, which appellant has included here. Appellant alleges that counsel should have been aware of Heggs at the time he entered his plea, on June 23, 2000, as the Heggs opinion was issued on February 17, 2000. The State maintains that counsel was not ineffective because Heggs was not final until the supreme court denied rehearing on July 10, 2000, after the entry of appellant’s plea, and because there was no demonstration that counsel’s omission prejudiced appellant as there was no reasonable likelihood that the State would have agreed to a departure sentence below the 1994 guidelines. That is not the point; prejudice is sufficiently alleged if appellant states that he would not have entered the plea and given up his right to trial had he known the correct sentencing guidelines range.

As appellant has alleged a facially sufficient basis for the withdrawal of his plea, we reverse and remand for an evidentiary hearing or further attachments refuting the first two grounds of his motion. Should the trial court determine that appellant is entitled to relief, the State will have the option of either agreeing to a new sentence or withdrawing from the plea agreement.

AFFIRMED in part, REVERSED in part and REMANDED.

POLEN, C.J., STONE and STEVENSON, JJ., concur.

      . Appellant’s second ground also includes the allegation that he was not advised that his statutory maximum was only fifteen years. We agree with the State that the transcript of the plea and sentencing hearing sufficiently refutes that allegation.

      . First, his current sentence is within the 1994 guidelines. See Heggs, 759 So.2d at 627 (stating that "if a person's sentence imposed under the 1995 guidelines could have been imposed under the 1994 guidelines (without a departure), then that person shall not be enti-tied to relief under our decision here”). Second, his sentence was imposed pursuant to a negotiated plea agreement and does not exceed the statutory maximum. See Dunenas v. Moore, 762 So.2d 1007, 1008 (Fla. 3d DCA 2000)("When a negotiated plea agreement is not conditioned upon the imposition of a sentence within a specific guideline range, improper scoring of the defendant's scoresheet will not render the plea illegal unless the sentence exceeds the statutory maximum.”), review denied, 791 So.2d 1096 (Fla.2001).


text:
    Larry PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4462.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Larry Perkins, DeFuniak Springs, pro se.
    No appearance required for appellee.
   PER CURIAM.

AFFIRMED without prejudice for the appellant to first exhaust his available administrative remedies through the Department of Corrections, and if that proves unsuccessful, he could then file in the circuit court a petition seeking a writ of mandamus to compel the DOC to credit him with the full amount of jail and prison time awarded by the trial court. See Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001).

POLEN, C.J., FARMER and TAYLOR, JJ., concur.


text:
    Larry PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2233.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.
    Larry Perkins, DeFuniak Springs, pro se.
    No appearance for appellee.
   PER CURIAM.

AFFIRMED without prejudice to appellant to first exhaust his available administrative remedies through the Department of Corrections, and if that proves unsuccessful, he may file in the circuit court a petition seeking a writ of mandamus to compel the DOC to credit him with the full amount of jail and prison time awarded by the trial court. See Rood v. State, 790 So.2d 1192 (Fla. 1st DCA 2001).

FARMER, KLEIN and SHAHOOD, JJ., concur.


text:
    Adelphia PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-324.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Adelphia Patterson, Fort Lauderdale, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant seeking relief in accordance with Bedford v. State, 775 So.2d 402 (Fla. 4th DCA 2000). See also Banks v. State, 793 So.2d 132 (Fla. 4th DCA 2001).

GUNTHER, FARMER and TAYLOR, JJ., concur.


author: GREEN, OLIVER L., Senior Judge.

text:
    Jose CAMILO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-317.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.
    Rehearing Denied March 18, 2003.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   GREEN, OLIVER L., Senior Judge.

Jose Camilo challenges the sentences imposed for his convictions for trafficking in heroin and conspiracy to traffic in cocaine, arguing that the statute that allowed for the imposition of minimum mandatory sentences for these offenses is unconstitutional pursuant to Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). The State argued that the minimum mandatory sentencing provisions were validly reenacted by the legislature and that the reenacted statute could be applied retroactively. Therefore, according to the State, Camilo’s sentence was legal.

We recently rejected the State’s argument on the reenactment issue in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). Therefore, we reverse Camilo’s sentences and remand for resentencing in accordance with the valid laws in effect at the time Camilo committed his offenses.

Reversed and remanded for resentenc-ing.

ALTENBERND, C.J., and COVINGTON, J., Concur.


text:
    Kimberly S. SULT, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-5013.
    District Court of Appeal of Florida, Second District.
    Feb. 28, 2003.

      Patrick B. Calcutt and Kathleen M. Cal-cutt of Calcutt & Calcutt, St. Petersburg, and John H. Trevena, Largo, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   GREEN, OLIVER L., Senior Judge.

On a certified question from the county court as a matter of great public importance, this court accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.080(b)(4) and 9.160. A jury found Kimberly Suit guilty for a violation of section 843.085, Florida Statutes (2001), “Unlawful use of police badges or other indicia of authority.” The trial court withheld adjudication and imposed $300 in costs. In upholding the constitutionality of the statute, the trial court certified the following question:

IS [SECTION] 843.085 VIOLATIVE OF THE CONSTITUTION OF THE UNITED STATES AND OF THE STATE OF FLORIDA IN THAT IT CRIMINALIZES WHAT COULD BE INNOCENT CONDUCT, SPECIFICALLY THE WEARING OF PARAPHERNALIA THAT CAN BE PURCHASED THROUGH COMMERCIAL CHANNELS BY THE PUBLIC AND COULD BE MISCONSTRUED AS IN-DICIA OF AUTHORITY?

The trial court’s certified question appears to raise the issue of substantive due process. Suit challenges the statute on the grounds of overbreadth, vagueness, and substantive due process. She also raises three other issues which we affirm without discussion. We hold that section 843.085 is not overbroad or vague and that it does not violate the right to substantive due process; in turn, we certify a question of great public importance to the Florida Supreme Court.

On June 14, 2001, at approximately 9:15 p.m., Corporal Jerry Davis of the Pinellas County Sheriffs Office noticed Suit entering a convenience store in St. Petersburg. Suit was dressed in a black T-shirt'on which was printed a large star and five-inch letters spelling “SHERIFF.” The large star depicted a crest and said “Pinel-las County Sheriffs Office.” At trial, Detective Frank Davis identified the T-shirt Suit had been wearing as an official shirt of the Pinellas County Sheriffs Office and testified that the shirt was used in emergency response situations. Suit was also wearing denim shorts and sandals.

Corporal Davis and Deputy Jeff McCo-naughey approached Suit, and Corporal Davis asked, “Do you work for us?” Suit replied, ‘Tes,” she opened her wallet, and the officers saw a Pinellas County Sheriffs Office identification card clipped to her wallet. Corporal Davis believed she was in violation of their office policy by wearing only part of a uniform. The officers discovered several minutes later that Suit was not an employee of the sheriffs office, and she was charged with a violation of section 843.085(1). Suit had previously been employed by the Pinellas County Sheriffs Office as a criminal justice specialist and as a detention deputy recruit. When she left her employment with the sheriffs office in October 2000, she did not return her identification card. Suit purchased the T-shirt at Americana Uniforms, a store open to the public. Suit testified that when she purchased the T-shirt she was not in uniform and was not asked for identification.

Section 843.085 provides in relevant part:

843.085 Unlawful use of police badges or other indicia of authority.— It is unlawful for any person:
(1) Unless appointed by the Governor pursuant to chapter 354, authorized by the appropriate agency, or displayed in a closed or mounted case as a collection or exhibit, to wear or display any authorized indicia of authority, including any badge, insignia, emblem, identification card, or uniform, or any colorable imitation thereof, of any federal, state, county, or municipal law enforcement agency, or other criminal justice agency as now or hereafter defined in s. 943.045, which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it, or which displays in any manner or combination the word or words “police,” “patrolman,” “agent,” “sheriff,” “deputy,” “trooper,” “highway patrol,” “Wildlife Officer,” “Marine Patrol Officer,” “state attorney,” “public defender,” “marshal,” “constable,” or “bailiff,” which could deceive a reasonable person into believing that such item is authorized by any of the agencies described above for use by the person displaying or wearing it.
(4) Nothing in this section shall prohibit a fraternal, benevolent, or labor organization or association, or their chapters or subsidiaries, from using the following words, in any manner or in any combination, if those words appear in the official name of the organization or association: “police,” “patrolman,” “sheriff,” “deputy,” “trooper,” “highway patrol,” “Wildlife Officer,” “Marine Patrol Officer,” “marshal,” “constable,” or “bailiff.”
(5) Violation of any provision of this section is a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083. This section is cumulative to any law now in force in the state.

The legislature enacted section 843.085 to promote public safety. The legislative history indicates that the intent was to prevent individuals from committing crimes while posing as police officers. See Fla. H.R. Comm, on Crim. Just. CS/HB 457 (1991) Staff Analysis 5 (final May 13, 1991) (on file with Florida State Archives) (commenting that, based on information from the Metro-Dade Police Department, “robberies and kidnappings in which the offenders pose as police officers are occurring with alarming frequency”). With the legislative intent in mind, we turn to the constitutional challenges Suit raises to section 843.085.

OVERBREADTH

Suit contends that the statute is overbroad because it encroaches upon First Amendment rights. In response to this argument, the trial court stated in its order, “The statute is- not overbroad as no constitutionally protected guarantees of free speech or free association are affected. See Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).” Thornhill invalidated a statute which prohibited loitering and picketing and stated that “the dissemination of information concerning the facts of a labor dispute must be regarded as within that area of free discussion that is guaranteed by the Constitution.” Id. at 102. Thornhill does not appear to support the proposition that the First Amendment is not implicated under section 843.085.

Wearing a T-shirt that bears a political message is protected speech. Bd. of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987); see Cohen v. California, 403 U.S. 15, 91 S.Ct. 1780, 29 L.Ed.2d 284 (1971) (stating that the defendant’s conviction was based entirely upon speech for wearing a jacket that said “Fuck the Draft”). We note, however, that “the right to dress as one pleases, vis-a-vis style and fashion, has little or no first amendment implications.” City of Daytona Beach v. Del Percio, 476 So.2d 197, 202 (Fla.1985). Here, section 843.085 does not prohibit an expression of support for law enforcement. A citizen may wear a shirt that says, for example, “I support the Pinellas County Sheriffs Office” or “Support the Police.” It also does not prohibit wearing a shirt that expresses disdain for law enforcement.

Rather, the statute prohibits the wearing or displaying of indicia of authority, or a colorable imitation thereof, of a law enforcement agency that could deceive a reasonable person into believing that the item is authorized by the agency for use by the person displaying or wearing it. The wearing of a shirt that depicts, for example, a star, the word “sheriff,” and a crest that says “Pinellas County Sheriffs Office,” to the extent that it is expression, is expression of an ambiguous message. Any message that may have been intended is unclear, unlike the expression of the defendant’s feelings about the draft in Cohen. Suit’s shirt, and other uniform shirts, neither expressly convey support of nor protest against the sheriffs office. It is also possible that a person would wear a uniform shirt because he or she is a member of that law enforcement agency. Thus, we conclude that to wear an official uniform shirt of a law enforcement agency, or a replica of one, implicates only an incidental amount of expressive conduct.

Here, Suit’s conduct clearly fell within the prohibitions of section 843.085. She wore an official Pinellas County Sheriffs Office T-shirt to a convenience store, and when asked if she worked for the sheriffs office, she said “yes” and displayed a sheriffs office identification card. An overbreadth analysis, however, is a facial analysis rather than an “as-applied” analysis.

Under the First Amendment over-breadth doctrine, an individual whose own speech or conduct may be prohibited is permitted to challenge a statute on its face “because it also threatens others not before the court — those who desire to engage in legally protected expression but who may refrain from doing so rather than risk prosecution or undertake to have the law declared partially invalid.”

Bd. of Airport Comm’rs, 482 U.S. at 574, 107 S.Ct. 2568 (quoting Brockett v. Spokane Arcades, Inc., 472 U.S. 491, 503, 105 S.Ct. 2794, 86 L.Ed.2d 394 (1985)). Thus, the purpose of the overbreadth doctrine and its requirement that the court consider hypothetical situations is to eliminate a chilling effect on the exercise of the constitutional right to free speech. See Schmitt v. State, 590 So.2d 404 (Fla.1991). “Restrictions on first amendment rights must be supported by a compelling, governmental interest and must be narrowly drawn to insure that there is no more infringement than is necessary.” Firestone v. News-Press Publ’g Co., 538 So.2d 457, 459 (Fla.1989).

The overbreadth doctrine, however, is to be used sparingly and as a matter of last resort. Broadrick v. Oklahoma, 413 U.S. 601, 613, 93 S.Ct. 2908, 37 L.Ed.2d 830 (1973). This is especially so when the challenged statute is “primarily meant to regulate conduct and not merely pure speech.” Schmitt, 590 So.2d at 412 (citing Broadrick, 413 U.S. at 615, 93 S.Ct. 2908). The Supreme Court has stated that “the ' overbreadth of a statute must not only be real, but substantial as well, judged in relation to the statute’s plainly legitimate sweep.” Broadrick, 413 U.S. at 615, 93 S.Ct. 2908. The Fourth District recognized that “[w]hen a court is confronted with a facial challenge to a law on the ground that it is overbroad, ‘a court’s first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.’ ” State v. Shank, 795 So.2d 1067, 1070 (Fla. 4th DCA 2001) (quoting City of Houston v. Hill, 482 U.S. 451, 458, 107 S.Ct. 2502, 96 L.Ed.2d 398 (1987)). A reviewing court must look to whether the overbreadth is substantial because “ ‘there must be a realistic danger that the statute itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.’ ” Bd. of Airport Comm’rs, 482 U.S. 569, 574, 107 S.Ct. 2568, 96 L.Ed.2d 500 (quoting City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 801, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984)). Individuals who wear, without authorization, full law enforcement uniforms or display law enforcement badges are not entitled to First Amendment protection for their conduct. That conduct merely conveys that the individual is an officer. Any political message on a T-shirt, such as the one Suit wore, is ambiguous and does not send an express message of support for law enforcement. Furthermore, subsection (4) of the statute provides an exemption with reference to fraternal, benevolent, or labor organizations or associations. Thus, a person wearing a Police Benevolent Association shirt, for example, would not be in violation of section 843.085. Also, a T-shirt that expressed clear support for (or protest against) law enforcement, such as “I support the Pinellas County Sheriffs Office,” would not violate section 843.085. Therefore, we conclude that section 843.085 affects only incidental expression and is not substantially overbroad.

VAGUENESS

Suit also contends that section 843.085 is unconstitutionally vague. The Florida Supreme Court has explained that “[t]he principles of the vagueness doctrine address compliance with the concept of due process. A statute or ordinance is void for vagueness when, because of its imprecision, it fails to give adequate notice of what conduct is prohibited. Thus, it invites arbitrary and discriminatory enforcement.” Wyche v. State, 619 So.2d 231, 236 (Fla.1993) (citations omitted). A statute “is vague if it ‘either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application.’ ” Bouters v. State, 659 So.2d 235, 238 (Fla.1995) (quoting Connolly v. Gen. Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926)).

The State contends that the analysis should be confined to the facts of this case. “Vagueness challenges to statutes not threatening First Amendment interests are examined in light of the facts of the case at hand; the statute is judged on an as-applied basis.” Maynard v. Cartwright, 486 U.S. 356, 361, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988); see State v. Barnes, 686 So.2d 633 (Fla. 2d DCA 1996). On an as-applied analysis, it is clear that the statute is not vague. By flashing the sheriffs identification card, Suit showed that she was trying to deceive the officers, and the officers believed that she was an employee of the sheriffs office who had committed a uniform violation.

Because section 843.085 does involve some incidental First Amendment interests, as discussed in the overbreadth analysis, we also note that even on a facial challenge, the statute passes constitutional muster. In Bouters, the court held that the aggravated stalking statute was not vague. In doing so, it analyzed the definítion of “harasses” which the statute defined as “to engage in a course of conduct directed at a specific person that causes substantial emotional distress in such person and serves no legitimate .purpose.” Bouters, 659 So.2d at 238 (quoting § 784.048, Fla. Stat. (Supp.1992)). The Bouters court agreed with the Third District in Pallas v. State, 636 So.2d 1368 (Fla. 3d DCA 1994), approved, 654 So.2d 127 (Fla.1995), that the statute did not create a subjective standard, but a “reasonable person” standard. “[T]he legislature has proscribed willful, malicious, and repeated acts of harassment which are directed at a specific person, which serve no legitimate purpose, and which would cause substantial emotional distress in a reasonable person.” Pallas, 636 So.2d at 1361.

In determining that the term “common pocketknife” was not vague, the Florida Supreme Court stated in L.B. v. State, 700 So.2d 370, 372 (Fla.1997):

An analogous situation are those penal statutes which measure conduct by a “reasonable person” standard. See, e.g., [State v.] Manfredonia, 649 So.2d [1388, 1391 (Fla.1995) ] (rejecting a vagueness challenge to a statute imposing a duty upon any adult in control of an open house party to “take reasonable steps” to prevent the possession or consumption of alcohol or drugs by a minor at that party). Like statutes which impose a “reasonable person” standard upon the citizenry, the Legislature’s use of the modifier “common” in section 790.001(13), while perhaps not a “model of clarity,” see id., does appeal to the norms of the community, which is precisely the gauge by which vagueness is to be judged.

(Footnote omitted.) Thus, even on a facial challenge, the above case law from the Florida Supreme Court supports a conclusion that the reasonable person standard saves section 843.085 from vagueness.

SUBSTANTIVE DUE PROCESS

Finally, Suit contends that section 843.085 violates her right to substantive due process, and the question the trial court 'certified in essence asks whether the statute violates substantive due process. “The Fourteenth Amendment to the United States Constitution, and article I, section 9 of the Florida Constitution, protect a citizen’s right to ‘due process of law.’ ” State v. O.C., 748 So.2d 945, 948 (Fla.1999). This court stated the following regarding substantive due process in State v. Walker, 444 So.2d 1137, 1138 (Fla. 2d DCA] (quoting Patch Enters, v. McCall, 447 F.Supp. 1075, 1081, (M.D.Fla.1978)), aff'd, 461 So.2d 108 (Fla.1984):

The basic test of substantive due process is whether the state can justify the infringement of its legislative activity upon personal rights and liberties. So long as the legislative activity does not encroach upon constitutional guarantees, or run afoul of federal statutory law, a state has a broad scope of discretion in which to regulate the conduct of its citizens.

We believe that the incidental effect the statute may have on First Amendment rights does not justify application of the strict scrutiny level of review. Rather, we agree with the trial court’s use of the rational basis test in its substantive due process analysis. See Walker, 444 So.2d at 1138-39 (recognizing that under the rational basis test legislation will be upheld if it is reasonably related to a legitimate state interest). The trial court held that section 843.085 did not violate substantive due process but certified the question of whether section 843.085 was unconstitutional for criminalizing innocent conduct, “specifically the wearing of paraphernalia that can be purchased through commercial channels by the public and could be misconstrued as indicia of authority.”

A statute can violate substantive due process for arbitrarily criminalizing innocent conduct. See State v. Saiez, 489 So.2d 1125 (Fla.1986) (holding that statute which prohibited possession of machines designed to produce credit cards did not have a rational relationship to goal of preventing credit card fraud because the statute did not require intent to put the equipment to an unlawful use). The legislature does, however, have the authority “to dispense with specific criminal intent when defining crimes.” Reynolds v. State, 842 So.2d 46, 51 (Fla.2002) (quoting State v. Bussey, 463 So.2d 1141, 1143 (Fla.1985)). In Reynolds, the supreme court held that a cruelty to animals statute was a general intent crime, and the statute survived a due process attack.

Under the rational basis test, the State obviously has a legitimate, and even compelling, interest in preventing robberies and kidnappings by individuals posing as law enforcement officers. The statute is rationally related to that goal. Section 843.085(1) is a general intent crime. The defendant need not have the intent to deceive, but the defendant must have the intent to wear or display the items prohibited. The statute may prohibit an individual from wearing a commercially available shirt or hat in public, but the statute is rationally related to its goal because it requires that a reasonable person could be deceived. Therefore, the statute prevents individuals from posing as law enforcement officers and prevents citizens from mistakenly relying on individuals who look like law enforcement officers. We hold that section 843.085(1) is rationally related to a legitimate government interest and thus does not violate substantive due process. We note that even if an intermediate scrutiny test were used because of an incidental effect on speech, we would hold that preventing crimes by persons wearing or displaying law enforcement items is an important governmental objective, and section 843.085 is substantially related to that objective. See TM. v. State, 784 So.2d 442, 444 n. 1 (Fla.2001) (recognizing an intermediate level of scrutiny in which the governmental objective must be important and the challenged law must be substantially related to that objective).

Thus, we hold that section 843.085 is not overbroad or vague and that it does not violate the right to substantive due process. In doing so, we certify to the Florida Supreme Court the following question of great public importance:

IS SECTION 843.085, FLORIDA STATUTES (2001), UNCONSTITUTIONAL AS OVERBROAD, VAGUE, OR A VIOLATION OF THE RIGHT TO SUBSTANTIVE DUE PROCESS?

Affirmed.

STRINGER and SILBERMAN, JJ„ concur.


text:
    Leon EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4536.
    District Court of Appeal of Florida, First District.
    March 4, 2003.
    Appellant, pro se.

      Charlie Crist, Attorney General; Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from a postconviction motion which the trial court summarily denied as successive. Although the trial court erred in ruling the appellant’s motion was successive, see Edwards v. State, 796 So.2d 569, 570 (Fla. 1st DCA 2001), we affirm the trial court’s summary denial because the appellant’s claim, which is that his habitual offender sentence is illegal because one of the prior convictions used to habitualize him was for possessing cocaine, is without merit. See Woods v. State, 807 So.2d 727, 729 (Fla. 1st DCA 2002). See also § 775.084(l)(a)(3), Fla. Stat. (1999).

AFFIRMED.

BOOTH, BENTON, and POLSTON, JJ., concur.


author: HAZOURI, J.

text:
    Javis L. SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-4300.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Donna L. Eng, Assistant Attorney General, West Palm Beach, for ap-pellee.
   HAZOURI, J.

Javis Sims (Sims) was charged with fleeing or attempting to elude a marked police car and driving while his license was revoked. After a jury trial, he was found guilty on both counts. The trial court entered a judgment in accordance with the jury verdict. Sims was sentenced to five years, with credit for time served, to be followed by five years probation. We reverse the judgment and sentence and remand for a new trial.

The charges against Sims arose from an incident allegedly occurring on July 25, 2000. On that date, police officer Michael Kelley allegedly saw Sims driving a Chevy Malibu (Chevy). Officer Kelley was not on duty and was driving his personal vehicle, an S.U.V. He was driving in the same direction as Sims, first behind him and then next to him. Sims was the only person in the vehicle. Officer Kelley recognized Sims because he had casual contact with Sims prior to July 25, 2000, and believed that Sims had his driver’s license revoked. Officer Kelley called in the name and tag number of the car. He also radioed for marked police units to respond to the area. The tag that Officer Kelley called in was registered to Dora Byrd, Sims’ wife.

Officer Kelley saw Sergeant Tom McCabe and Deputy Chief Immler respond to his call. The Chevy was stopped at a red light. Deputy Chief Immler got out of his vehicle, an unmarked Crown Victoria, and approached the Chevy. He was wearing his police uniform and asked the driver (alleged to be Sims) to produce his driver’s license and vehicle registration. The driver reached over into the glove compartment and then accelerated his vehicle and proceeded down the road. Deputy Chief Immler testified that he had eye contact with the driver for less than a minute and could only generally identify him as a black man with dreadlocks in his late twenties or early thirties. Deputy Chief Immler got back into his vehicle and attempted to pursue the Chevy. He saw the Chevy make a U-turn and go through two red lights, but the Chevy disappeared out of sight. He did not continue to pursue the vehicle due to heavy traffic. Sergeant McCabe was on road patrol at the time and also responded to Officer Kelley’s call. He observed the sequence of events, but similar to Deputy Chief Immler could identify the driver only as a black male with long dreadlocks. At trial, neither Deputy Chief Immler nor Sergeant McCabe could identify Sims as the driver.

On August 4, 2000, Officer Kelley, while on patrol, saw Sims in a parking lot of a convenience store. He allegedly observed Sims get into a 1992 Chevrolet, back the vehicle up, and park it. Officer Kelley testified that this was a different car than the one he saw Sims in on July 25, 2000. However, the tag was the same. Officer Kelley arrested Sims based on the July 25, 2000, incident.

Prior to the commencement of the trial, Sims filed a motion in limine to prohibit the introduction of “Law enforcement testimony regarding the observation of Defendant unlawfully operating a motor vehicle on August 4, 2000 or at any time prior or subsequent to the present charges.” Sims argued that the testimony was not relevant to the offenses at issue and would substantially prejudice him. He also argued that the State had not given notice of “similar fact” evidence. See § 90.404(2)(c)l, Fla. Stat. (2000). At a hearing on the motion, Sims argued that since he was not charged for any actions occurring on August 4, 2000, any testimony by the police officers that Sims was driving a vehicle on that date should be considered similar fact evidence of other crimes and was offered only to prove Sims’ propensity to commit the charged offense. The State argued that the arrest on August 4, 2000, and Sims’ conduct during the arrest is intertwined with the charged offenses and is relevant to Sims’ identity since the tag on the car that Sims was allegedly driving on August 4, 2000, was the same tag on the vehicle on July 25, 2000. The trial judge denied Sims’ motion in limine.

During the opening statement, the State told the jury that ten days after the alleged incident, Officer Kelley saw Sims driving a different vehicle with the same tag as the vehicle the officers attempted to stop on July 25, 2000. Sims objected, but the trial judge overruled the objection. The trial judge ruled that the State could elicit evidence that Sims was driving a car with the same tag of the car that he was charged with driving on July 25, 2000. However, the State could not argue that Sims’ driving on August 4, 2000, was a crime.

At trial, Sims contended that he was not the man driving the Chevy on July 25, 2000. He argued that the description given by the police officers could identify many people, including both his brother and his stepson, also tall black males with dreadlocks and who both had access to the Chevy. Sims also presented testimony from two alibi witnesses, Curtis Williams and Ernest Nixon, both of whom testified that they were with Sims on July 25, 2000, and that they were fishing in Pahokee, which is “no where near” where Officer Kelley allegedly saw Sims driving the Chevy.

Prior to Ernest Nixon’s testimony, the parties addressed the State’s anticipated impeachment. The State had a copy of paperwork with a seal from the Clayton County State Court in Georgia, showing that Nixon pled guilty to the crime of dishonesty or false statement, was placed on probation, and had an active warrant in Georgia for a violation of probation. Nixon told the court that he had pled guilty because he was forced to, but that no one had told him he was convicted. He stated that he thought that he was never convicted and since he was on probation, he thought the case was still open. Sims argued that without proof of a conviction, the State could not impeach. The trial court determined that the jury was entitled to know that Nixon pled guilty and was placed on probation for the crime of giving a false statement because it reflected on his credibility. The trial court also stated that Nixon was free to deny it.

Nixon, who is Sims’ first cousin, testified that on July 25, 2000, he was fishing with Sims all day. During cross-examination, the State tried to impeach Nixon by asking him if he had ever pled guilty and been convicted of a crime involving dishonesty. Nixon answered, ‘Tes.” Defense counsel failed to renew his objection to this impeachment and, in fact, during re-direct examination elicited from Nixon that the crime he pled guilty to occurred in 1998 in the State of Georgia, and that “the police officer said I gave him a wrong name.” He further stated that he did not know whether he had actually been convicted of the offense.

Dora Byrd Sims (Sims’ wife) testified. She stated that both her son and Sims’ brother fit the general description given by the officers and that she often lends her vehicles to them to drive to and from school. She also testified that it was not Sims driving the Chevy on July 25, 2000. Sims, himself, took the stand and testified that on July 25, 2000, he was fishing with some friends and that he did not learn about the incident in which he was allegedly involved until he got home. He acknowledged that he had previously been convicted of “approximately four felonies.”

Sims contends inter alia that the trial court abused its discretion by allowing the State to present evidence that Sims was seen driving a car with the same tag number, on August 4, 2000, the day he was arrested. He argues that the evidence is irrelevant to the identity of the driver on July 25, 2000, and that the State offered it only to prove his propensity to drive with a revoked driver’s license. We agree.

The admissibility of collateral crime evidence is within the discretion of the trial court and its determination shall not be disturbed absent an abuse of that discretion. See LaMarca v. State, 785 So.2d 1209, 1212 (Fla.2001).

The Florida Supreme Court addressed the standard for admission of collateral crime evidence in Williams v. State, 110 So.2d 654 (Fla.1959). “Our view of the proper rule simply is that relevant evidence will not be excluded merely because it relates to similar facts which point to the commission of a separate crime. The test of admissibility is relevancy.” Id. at 659. This rule is codified in section 90.404(2)(a), Florida Statutes (2000), which provides that the state may introduce similar fact evidence of other crimes or acts when it is relevant to prove a material fact in issue like identity, preparation, motive, intent, opportunity, plan, absence of mistake or accident, or knowledge. However, similar fact evidence is inadmissible when the evidence is relevant solely to prove bad character or propensity. See Kulling v. State, 827 So.2d 311 (Fla. 2d DCA 2002).

Pursuant to the trial court’s ruling on Sims’ motion in limine, the State could present evidence that Sims was driving the vehicle on August 4, 2000, with the same tag, but not that it was a crime. Sims argues that the testimony that he was driving a vehicle with the same tag on August 4, 2000, does not make it more likely than not that he was the driver of the vehicle on July 25, 2000, and therefore is not relevant.

The State argues that the testimony is relevant to establish identity. A mere general similarity will not render the similar facts legally relevant to show identity. See Miller v. State, 791 So.2d 1165, 1169 (Fla. 4th DCA 2001). There must be identifiable points of similarity which pervade the compared factual situations. In order for the similar facts to be relevant, the points of similarity must have some special character or be so unusual as to point to the defendant. Id. at 1170. In the instant case, the only similarity is the tag number on the vehicle. The factual circumstances are completely different. On August 4, 2000, it was a different car, parked in a different location at a different time of day. Also, Sims was not contesting that the tag was registered to his wife. The fact that he may have been driving a car with a tag registered to his wife is not so unusual that it means he was the only one who could have driven the Chevy on July 25, 2000. In Stephens v. State, 662 So.2d 394 (Fla. 5th DCA 1995), the fifth district held that the fact that a collateral crime witness can identify the accused is insufficient. “Instead, the points of similarity must have some special character or be so unusual as to point to the defendant.” Id. at 395. “Moreover, the degree of uniqueness required to admit Williams rule evidence as proof of identity is ‘fingerprint’ type of evidence.” Id.; see also Miller, 791 So.2d at 1170. In the instant case, the evidence does not rise to the level of uniqueness that is necessary in order to be admissible to prove identity.

The State argues that even if the trial court erred in admitting the evidence, it was harmless error. Evidence is harmless if the state can prove beyond a reasonable doubt there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986); Goodwin v. State, 751 So.2d 537, 542 (Fla.2000) (reaffirming DiGuilio and its applicability to error such as the improper admission of collateral crime evidence). The admission of improper collateral crime evidence is presumed harmful error because of the danger that a jury will take the bad character or propensity to commit the crime as evidence of guilt of the crime charged. See Rivera n State, 745 So.2d 343, 344 (Fla. 4th DCA 1999). A violation of the Williams rule may be considered harmless only where the State has proved beyond a reasonable doubt that the violation did not contribute to the verdict.

In the instant case, it is not clear that Sims would have been found guilty without the collateral crime evidence. The testimony was conflicting and the only evidence linking Sims to the crimes charged was Officer Kelley’s testimony and the evidence that he was seen driving a car with the same tag on August 4, 2000. As in Kulling, because the collateral crime did not meet the strict standard of relevancy in this case, the trial court abused its discretion in allowing the State to introduce similar crime evidence. It cannot be said that the admission of this evidence was harmless error because identification of Sims as the perpetrator rested on the testimony of a single witness. Therefore, the State has failed to prove beyond a reasonable doubt that there was no reasonable possibility that the error contributed to his conviction.

We recognize that the State concedes that the trial court erred in allowing the State to impeach the alibi witness, Ernest Nixon, without proof that a judgment of conviction was entered in Georgia. However, we hold that it was not preserved for appellate review. Therefore, we do not rely on this error as additional grounds for reversal. Although the defense moved in limine prior to Nixon’s testimony and requested the trial court to not allow the anticipated impeachment, the defense did not make a contemporaneous objection during the actual impeachment. See Shaw v. State, 824 So.2d 265 (Fla. 4th DCA 2002); Thomas v. State, 424 So.2d 193 (Fla. 5th DCA 1983). In addition, on re-direct examination Sims chose to have Nixon identify the nature of the crime (giving a police officer a false name) which the state had not elicited in its cross examination. This court cannot ascertain whether after hearing Nixon’s testimony, Sims decided that he did not want to oppose admitting the evidence. See Shaw, 824 So.2d at 268. In order to preserve the issue for appellate review, it was necessary for Sims to renew his objection during Nixon’s testimony. Having concluded that the error was not preserved, we do not address the State’s contention that it is harmless error.

Sims’ final point on appeal is that the cumulative effect of ineffective assistance of his trial counsel in failing to object to numerous improper statements made by the prosecutor in his final argument denied him due process of law. As support for this argument, Sims draws the court’s attention to approximately twenty statements made by the State during closing argument. We do not need to address this issue because we reverse on other grounds and a claim of ineffective assistance of trial counsel is more appropriately raised in a rule 3.850 motion for post-conviction relief. However, we recognize that many of the statements were improper and had objections been made, they should have been sustained. As this court noted in Jones v. State, 730 So.2d 346 (Fla. 4th DCA 1999) (reversing a conviction for improper final argument), we again remind the State that its prosecutors should be mindful of not letting their zeal in seeking a conviction overshadow their responsibility to seek justice. We caution the State to avoid these improper arguments in a future trial.

REVERSED.

FARMER and STEVENSON, JJ., concur.

      . When the state in a criminal action intends to offer evidence of other criminal offenses under paragraph (a) or paragraph (b), no fewer than 10 days before trial, the state shall furnish to the defendant or to the defendant's counsel a written statement of the acts or offenses it intends to offer, describing them with the particularity required of an indictment or information. No notice is required for evidence of offenses used for impeachment or on rebuttal.

      . Although the trial court prohibited the State from referring to the events of August 4, 2000, as being a crime, the clear implication is that Sims was driving another vehicle with the same tag while his driver’s license was revoked, which itself is unlawful.

      . The State's improper statements include: telling the jury that its verdict should be based on whether Officer Kelley was telling the truth or lying; instructing the jury to choose the side that’s more credible and believable; embellishing Officer Kelley's testimony by stating that he is not an officer who is trying to lie or embellish; embellishing Officer Kelley's testimony by stating that he was not impeached; telling the jury that they were told a "fish story” by the defense; and instructing the jury that it should base its verdict on which side they believed more.


text:
    John PRESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2801.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

John Presley was convicted of burglary of a dwelling and theft of property valued at less than $100. Although the trial court erroneously allowed the introduction of an out-of-court description of the perpetrator, we hold such error was harmless.

At trial, over defense objection, the lead police officer was allowed to testify that per a BOLO description he was looking for a “tall black male, thin, I believe was wearing a blue shirt, tan pants and they said he was walking towards 25th Street,” and that Presley was stopped because he met that description. This BOLO, which contained an out of court description of the perpetrator, constituted inadmissible hearsay and should not have been admitted. See Puryear v. State, 810 So.2d 901 (Fla.2002); § 90.801(2)(c), Fla. Stat. (2001). Nor do we find a sufficient predicate was established for the introduction of this out-of-court description (contained within a call to the police by an eye-witness neighbor) as an excited utterance. § 90.803(2), Fla. Stat. (2001); cf. Foster v. State, 804 So.2d 405 (Fla. 4th DCA 2001).

However, we find the trial court’s erroneous admission of this hearsay testimony was harmless. Later at trial, the initial declarant of this double hearsay, eye-witness Ida Nelson, testified regarding her observations of the suspect. Mrs. Nelson identified Presley as the man she saw emerge from her neighbor’s home, wearing clothes which she had recognized as belonging to her neighbor. She had an unobstructed view of the door from which he emerged, and upon exiting her neighbor’s residence Presley walked across the street and stood in front of her home, in plain view, for a few minutes. Her description of Presley on the date in question, and her identification of him in court, was unwavering. Defense counsel was allowed to cross-examine Mrs. Nelson at length, challenging the integrity of her memory and insinuating her view of her neighbor’s home was actually obstructed by some shrubs. Although the admission of Mrs. Nelson’s out-of-court description improperly corroborated her in-court testimony, we find its admission was harmless where the defense was allowed to cross-examine her on this subject, thereby mitigating the prejudice. See Caruso v. State, 645 So.2d 389, 395 (Fla.1994). In addition, Presley was found with a number of items from the burglarized neighbor’s home in his possession and was wearing some items of clothing when apprehended which were identified as belonging to the neighbor; the neighbor testified upon arriving home from vacation she had found some unknown old tattered clothes in her home. In this case, the proverbial “smoking gun” was the discovery of two ice-cold drink boxes of Tang found on Presley’s person when he was stopped by the police; Presley did not have any ice in the bag in which he was carrying the drink boxes, and the corner store, where defense counsel claimed Presley had stopped for a drink, did not sell Tang. Yet, the refrigerator of the burglarized home contained a six-pack of Tang, from which, coincidentally, two drink boxes were missing. On these facts, we find beyond a reasonable doubt, the erroneous introduction of the out-of-court description of the burglar was harmless. See Miles v. State, 839 So.2d 814 (Fla. 4th DCA 2003); Goodwin v. State, 751 So.2d 537 (Fla.1999); cf. Puryear v. State, 820 So.2d 359 (Fla. 4th DCA 2002)(erroneous introduction of out-of-court description by victim of her assailant was not harmless since this was a close case on the issue of identification). We find Presley’s additional arguments concerning remarks made during closing statements by the prosecutor unconvincing.

AFFIRMED.

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

        . We note Puryear, which definitively held a description of an individual does not qualify as a non-hearsay statement of "identification/’ had not yet been decided when the trial judge made his ruling in the instant case.


author: POLEN, C.J.

text:
    Shawon MILES, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-2165.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.

      Carey Haughwout, Public Defender, and Allen J. DeWeese, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   UPON REMAND FROM THE SUPREME COURT

POLEN, C.J.

Upon remand from the Florida Supreme Court’s opinion dated June 25, 2002, based upon its decision in Puryear v. State, 810 So.2d 901 (Fla.2002), we substitute this opinion for our previous opinion in this case.

Shawon Miles timely appeals after a jury convicted him of robbery with a firearm (Count I), aggravated assault with a firearm (Count II), and two counts of kid-naping with a firearm (Counts III-IV). He was sentenced as a prison releasee reoffender (PRR) to life in prison without parole on counts I, III, and IV, and to fifteen years in prison on Count II. We affirm on all issues raised. The charges in this case arose following a night time robbery by at least two men at an automobile parts store. At trial, the store’s manager testified that on the night in question, a delivery man entered the store and told him that a black man with a ski mask was headed from behind the store out to the street. As the delivery man went back to his truck, the manager called 911.

Two masked intruders then entered the store, with the delivery man in tow. One of the men who wore a jacket held a gun and pointed it in between the manager’s eyes. The manager was told to hand over the money kept in the store’s safe. The intruders forced the store manager and the delivery man to leave the main part of the store and go down a hall into the manager’s office, where the safe was located. After handing over the money in the safe, the manager and delivery man were forced on the floor, where they were bound. They were told not to leave the office. The delivery man corroborated the manager’s version of events. He explained that he was forced from his truck to enter the store. The manager identified Miles as one of the perpetrators about fifteen minutes after the robbery and also in court based on Miles’ gold teeth; the delivery man, in contrast, could not identify Miles after he was caught by police. The state repeatedly asked the delivery man to look at “the individual sitting at the [defense] table, the black gentleman sitting between the two attorneys.” The court sustained Miles’ repeated objections. Miles soon thereafter moved for a mistrial based partly on the state’s reference to his race. The court denied the motion but offered Miles the opportunity to question the jurors to see if any of them were tainted because of the comments; Miles declined the offer.

The state also questioned a police officer as to what the manager and delivery man told him at the scene. The court sustained Miles’ objection as to the delivery man, but allowed the state to ask this question as it pertained to what the store manager said. The state elicited the descriptions that the manager gave of his assailants.

Another officer testified that soon after a BOLO was issued, he saw a black male walking toward the store, enter it for a few seconds, and then come out again. When the officer identified himself and told the man (Miles) to get on the ground, the man took off running. As he ran, he dropped a ski mask. A police dog found Miles hiding nearby, as well as two latex gloves and a jacket. The state’s DNA expert from the FBI testified that blood stains on the jacket and other stains found in the pocket matched Miles’ DNA. His DNA was also found on a ski hat.

On the second to last day of trial, before the state rested, Miles moved to strike one juror, who the state agreed had been sleeping. The court reserved ruling until the next morning. The next morning, Miles was not there; his attorney reminded the court about the problem and waived Miles’ presence. The court dismissed the juror and substituted her alternate.

After the state rested, Miles moved for a judgment of acquittal. He argued that the kidnaping charges were improper because the brief confinement of the two victims was only incidental to the robbery. The court denied the motions. When the jury submitted its verdict, it asked the court to refer to the jurors only by number and not by name because they feared retaliation. Miles lodged a general objection, but the court polled each juror only by number, as they requested. The court later denied Miles’ motion to call the jurors back and interview them about their request.

Dismissal of the juror in Miles’ absence

Miles first argues he was denied his right to be present when the sleeping juror was dismissed. We affirm because Miles failed to argue to the trial court that he was not given the opportunity to ratify his attorney’s waiver of his presence, as is required by Amazon v. State, 487 So.2d 8, 11 (Fla.1986). His argument, therefore, was waived.

Denial of Miles’ motion to disqualify sleeping juror

Miles then argues that the court should not have waited until the morning after he made his motion to disqualify the sleeping juror. He argues he was prejudiced because two state witnesses testified after he made the motion but before the substitution occurred the following day. This argument also fails on its face. Miles could not have been harmed at all by the brief delay because it is undisputed the alternate was there for this testimony. The judge replaced the juror before deliberations. Appellant having failed to demonstrate reversible error, we affirm as to this issue.

Overruling Miles’ objection with respect to tainting of the jury

Miles then argues he was entitled to a new trial, or at least a juror interview, when the jurors informed the court they feared retribution from Miles. “Upon an inquiry into the validity of a verdict or indictment, a juror is not competent to testify as to any matter which essentially inheres in the verdict or indictment.” § 90.607(2)(b), Fla. Stat. (1999). Consistent with the foregoing rule, the supreme court in Baptist Hospital of Miami, Inc. v. Maler, 579 So.2d 97 (Fla.1991) set forth the test courts should employ in determining when post-trial questioning of a juror is warranted. Specifically, a jury inquiry is permissible only when “the moving party has made sworn factual allegations that, if true, would require a trial court to order a new trial[.]” Id. at 100. Once the movant meets this burden, he “must establish actual juror misconduct [via] the juror interview.” Id. at 100 n. 1. If he meets this burden, the court must order a new trial unless the opposing party can show that the misconduct was harmless. Id.

In the instant case, there was no express allegation that the jurors received any nonrecord information. There was no allegation by Miles that the jurors engaged in any overt act of misconduct that otherwise would have made them subject to some limited inquiry. Rather, he lodged merely a general objection to the jurors’ note. Appellate courts should not consider grounds for such objections unless they have been stated with specificity at trial. See Filan v. State, 768 So.2d 1100, 1101 (Fla. 4th DCA 2000); Jackson v. State, 738 So.2d 382, 386 (Fla. 4th DCA 1999). Because Miles did not meet his burden under Maler, we must affirm.

Admission of hearsay evidence

Miles then argues the officer’s testimony which conveyed the store manager’s description of his assailant was inadmissible hearsay. In Puryear v. State, 810 So.2d 901 (Fla.2002), the Florida Supreme Court distinguished this type of description from a statement of identification, explaining that such a description is hearsay.

Under Puryear, we must agree with Miles’ argument that the trial court erred by admitting the manager’s description. The store manager gave his description to police after perceiving Miles and the incident that occurred moments before. In light of the error, we turn to the issue of whether the error was harmless and we conclude that it is.

Section 924.33, Florida Statues, provides that no judgment shall be reversed unless the appellate court is of the opinion that error was committed that injuriously affected the substantial rights of the appellant. In this case, the statement that was erroneously admitted was the police officer’s statement as to what the store manager told him. However, prior to the police officer’s testimony, the store manager himself testified to the same account and description. As a result, the hearsay statement we now deem erroneously admitted was cumulative in nature and therefore we find that although the trial court erred, such error was harmless. See Caruso v. State, 645 So.2d 389, 395 (Fla.1994); Presley v. State, 839 So.2d 813 (Fla. 4th DCA 2003).

Highlighting Miles’ race

Miles then argues the court should have granted a mistrial when the state repeatedly made references to the fact Miles was black. A motion for mistrial is directed to the sound discretion of the trial court, and should be granted only when necessary to ensure that the defendant receives a fair trial. Gorby v. State, 630 So.2d 544 (Fla.1993). Under this standard, we do not believe the state’s questions, while improper, diminished the fairness of the trial. The court observed that none of the jurors seemed affected by the comments. It even gave Miles the opportunity to voir dire the jurors to cor-

robórate its own observations, but Miles declined the offer. With only the bare record to determine the effect of what transpired, we must presume the court’s observations were correct, especially since Miles did not see a need to interview the jurors. Therefore, we affirm.

Admission of DNA evidence at trial

Before trial, the state moved to take samples of Miles’ DNA. Miles did not object but asked the court to limit release of his samples to only the state attorney’s office and the West Palm Beach police department. The court granted both parties’ requests. Thereafter, Miles moved to exclude the DNA evidence on the grounds that the state forwarded the samples to the FBI for analysis, in contravention of the court’s order. The court denied his motion. Miles cannot challenge the taking of his samples because he acquiesced to it. Rather, he rests his challenge primarily on section 943.325, Florida Statutes (1999). That statute provides, in pertinent part,

(l)(a) Any person who is convicted or was previously convicted in this state for any offense ... shall be required to submit two specimens of blood to a Department of Law Enforcement designated testing facility as directed by the department.
(6) The [DNA] analysis, when completed, shall be entered into the automated database maintained by the Department of Law Enforcement for such purpose, and shall not be included in the state central criminal justice information repository.
(7) The results of a DNA analysis and the comparison of analytic results shall be released only to criminal justice agencies as defined in s. 943.045(10), at the request of the agency. Otherwise, such information is confidential.

As the state notes, because the samples were taken from Miles prior to his conviction, this statute does not apply under the express provisions of subsection (l)(a).

Alternatively, Miles argues that submission of the samples to the FBI violated his right to privacy and the court’s in limine order. The record reflects, however, that the state did not willfully disregard the court’s order or Miles’ privacy. It was undisputed that the West Palm Beach police department lacked the ability to analyze the DNA samples. While it may have been better practice for the state to have sought permission from the court before sending the samples to the FBI, we hold refusal to exclude this evidence fell within the court’s discretion. See Fla. R.Crim. P. S.220(n). Accordingly, we affirm.

Denial of motions for judgment of acquittal on kidnaping charges

Miles also argues he should have received a judgment of acquittal as to the kidnaping charges, since they were merely incidental to the robbery. To determine whether Miles’ confinement of the victims was a slight act that was merely incidental to the robbery, this court must apply the test adopted in Faison v. State, 426 So.2d 963 (Fla.1983). Under this test, the movement or confinement: (a) must not be slight, inconsequential and merely incidental to the other crimes; (b) must not be the kind inherent in the nature of the other crimes; and (c) must have some significance independent of the other crimes in that it makes the other crimes substantially easier to commit or substantially lessens the risk of detection. Id. at 965-66.

Here, the record supports that there was competent substantial evidence to meet the Faison test to support both convictions. Miles bound both victims. Applying the first prong of the Faison test, the confinement was not slight, inconsequential, and merely incidental to the robbery. The victims’ confinement continued even after the robbery had ceased. Applying the second prong, “the confinement was not of a sort inherent in a robbery because it was not necessary to tie up the victims in order to commit the robbery.” Berry v. State, 668 So.2d 967, 969 (Fla.1996). Applying the third prong, “it is clear that the binding of the victims was a confinement with independent significance from the underlying felony in that it substantially reduced the risk of detection.” Id. at 970. Thus, the confinement of these victims justifies the kidnaping convictions. See id.

Whether the PRR Act is unconstitutional

Finally, Miles argues the PRR Act is unconstitutional as violative of substantive due process, the ban against cruel and unusual punishment, overbreadth doctrine, equal protection, and Apprendi v. N.J., 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). As Miles acknowledges, this and other courts have rejected these arguments in prior cases. See Grant v. State, 770 So.2d 655 (Fla.2000); State v. Cotton, 769 So.2d 345 (Fla.2000); Cameron v. State, 804 So.2d 338 (Fla. 4th DCA 2001); Kijewski v. State, 773 So.2d 124 (Fla. 4th DCA 2000). We reject them here as well.

AFFIRMED.

GUNTHER and WARNER, JJ., concur.

      . The third, if he did exist, was not found.

      . Jenkins v. State, 732 So.2d 1185 (Fla. 4th DCA 1999), confirmed the applicability of Maler in criminal cases.