author: ALTENBERND, Chief Judge. CANADY, Judge,

text:
    Valerie PAGAN and Jami Pagan, Appellants, v. SARASOTA COUNTY PUBLIC HOSPITAL BOARD, d/b/a Sarasota Memorial Health Care System; SMH Physician Services, Inc., a Florida not-for-profit corporation, d/b/a First Physicians Group of Sarasota; Kristen L. Paulus, M.D.; Michael M. Shroder, M.D.; Audrey Aloise Roehrig; and Florida Physicians Insurance Corporation, Inc., Appellees.
    No. 2D02-5672.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    Mark Dungan of Icard, Merrill, Cullis, Timm, Furen & Ginsburg, P.A., Sarasota, for Appellants.

      David A. Wallace of Willliams, Parker, Harrison, Dietz & Getzen, for Appellees Sarasota County Public Hospital Board, SMH Physician Services, Inc., Kristen L. Paulus, M.D., and Michael M. Shroder, M.D.
    Stephen E. Day and Rhonda B. Boggess of Taylor, Day & Currie, Jacksonville, for Appellee First Professionals Insurance Company, Inc., f/k/a Florida Physicians Insurance Co.
    No appearance for Appellee Audrey Al-oise Roehrig.
    Joel S. Perwin of Podhurst Orseck, P.A., Miami, for Amicus Curiae Florida Trial Lawyers.
   ALTENBERND, Chief Judge.

Valerie and Jami Pagan appeal a summary final judgment that was entered in an unusual action for declaratory relief filed by Sarasota County Public Hospital Board (Hospital Board) and SMH Physician Services, Inc., d/b/a First Physicians Group of Sarasota (First Physicians Group). The Hospital Board and First Physicians Group sought a legal ruling that First Physicians Group and the doctors who practiced medicine through this nonprofit corporation were entitled to all the benefits of sovereign immunity. See § 768.28, Fla. Stat. (2001). The trial court’s judgment so rules as to the Pagans’ claim. We conclude that the Pagans have not demonstrated a basis that entitles them to receive a reversal of this judgment.

On the other hand, it is equally clear that the complex issues presented by this action for declaratory relief were not fully litigated and that the trial court did not intend the ruling to affect other persons who may be similarly situated to the Pagans. Accordingly, we decline to adopt the position argued by the Hospital Board and First Physicians Group that this ruling has broad application. Although the trial court’s order contains language broader than necessary to decide the dispute between the Pagans and First Physicians Group, we limit the ruling to those parties. Whether this nonprofit corporation and all of the forty to fifty doctors who practice in this group are entitled to governmental immunity in all cases is not an issue that can be resolved on this record.

I. THE CREATION OF FIRST PHYSICIANS GROUP

The Hospital Board, which is comprised of nine publicly elected members, is the governing board of the Sarasota County Public Hospital District. The Hospital Board was created by a special act of the legislature in 1949 at a time when private, for-profit corporations played little role in the construction of hospitals. It is undisputed that such hospital boards and their employees can possess the protections provided by sovereign or governmental immunity, subject to the limited waiver of sovereign immunity contained in section 768.28. See, e.g., Eldred v. N. Broward Hosp. Dist., 498 So.2d 911 (Fla.1986); Brown v. N. Broward Hosp. Dist., 521 So.2d 143 (Fla. 4th DCA 1988); Lower Fla. Keys Hosp. Dist. v. Littlejohn, 520 So.2d 56, 57 (Fla. 3d DCA 1988); see also Hillsborough County Hosp. Bd. v. Taylor, 546 So.2d 1055 (Fla.1989).

The Hospital Board’s enabling legislation provides that the Hospital Board is “authorized and empowered”:

(q) To the extent permitted by the Constitution and laws of this state, to establish, operate, or support subsidiaries and affiliates, either for profit or not for profit, to assist the hospital board in fulfilling its declared public purpose of provision for the health care needs of the people of the hospital district.... The establishment, operation, or support of a subsidiary or affiliate corporation ... is hereby declared to be a public purpose and necessary for the preservation of the public health and for a public use and for the welfare of the hospital board and inhabitants of the hospital district.

Ch. 26468, Laws of Fla. (1949), as amended by ch. 86-373, § 1, Laws of Fla.

Based upon this provision, in 1994 the Hospital Board voted at a public meeting to create SMH Physician Services, Inc., as a nonprofit corporation. The Hospital Board’s creation of this nonprofit corporation was apparently justified on the theory that Sarasota County did not have an adequate supply of primary care physicians, that market forces within the private sector could not supply these physicians, and that governmental action was necessary to assure an adequate supply of primary care physicians for the people of Sarasota County. Once incorporated, the corporation began providing medical services under the fictitious name of First Physicians Group.

First Physicians Group grew rapidly. By the time this lawsuit was filed in 2001, the group included more than forty physicians practicing in a wide range of specialities. It does not have a single location, but has doctors in about fifteen separate locations. The group has apparently attracted a few doctors into the community, but our record suggests that most of the members of this group were doctors practicing in Sarasota County in 1994 who have simply merged their medical practices into this nonprofit corporation.

Although First Physicians Group is a nonprofit corporation, this is not a group of doctors that is serving primarily or only the poor. These doctors' appear to accept patients and receive payments from their patients and insurance companies just like any private clinic or professional association of physicians. The Hospital Board does not appear to control these doctors’ fees or the selection of their patients. The doctors in this group are only required to perform eighteen hours of community service each year. The corporation is a nonprofit corporation, but the physicians within the group earn large salaries established by complex production formulas similar to those used in private sector medical groups. In 2000, many of the physicians had incomes in excess of $200,000 and several had incomes in excess of $400,000.

The Hospital Board created this nonprofit corporation, and it has the power to dissolve it. It used government money to create this corporation. The Hospital Board elects the nine members of the corporation’s board, and a majority of those elected must be sitting Hospital Board members. The corporation actually runs at a loss and receives additional government funds annually to cover its expenses. The doctors in this group are not required to admit their patients to Sarasota Memorial Hospital. Their patients may be admitted to other hospitals in the community. If the Hospital Board decided to dissolve the corporation, the corporation’s remaining assets would revert to the Hospital Board.

II. THE SIGNIFICANCE OF GOVERNMENTAL IMMUNITY FOR FIRST PHYSICIANS GROUP, ITS DOCTORS, AND PATIENTS IN SARASOTA COUNTY

Since the creation of this nonprofit corporation, First Physicians Group has taken the position that it is a governmental entity and that the doctors within the group are government employees. Patients have disagreed. The outcome of this dispute has significant ramifications for medical malpractice lawsuits, for First Physicians Group, for the doctors it employs, and for their patients.

If these doctors do not have the benefit of governmental immunity, then their patients can pursue malpractice claims just like other patients bring claims against other doctors. The duty that a typical doctor owes to a patient is governed by the professional negligence standard, which generally requires that the doctor provide that level of care that a similar and reasonably careful physician would provide. See § 766.102(1), Fla. Stat. (2003); Fla. Std. Jury Instr. 4.2(a). On the other hand, if the doctors at First Physicians Group receive the benefit of governmental immunity, they can only be personally sued if they act “in bad faith or with malicious purpose or in a manner exhibiting wanton and willful disregard of human rights, safety, or property.” See § 768.28(9)(a), Fla. Stat. (2003).

For First Physicians Group the difference is equally significant. If it does not possess governmental immunity, it will be vicariously liable to its patients for the actions of its doctors just like any other private medical professional corporation. Its liability will not have any special limits or caps that are different from the rules that apply to for-profit medical professional corporations. If it is an instrumentality of a governmental agency, then it cannot be liable for a patient’s claim in excess of $100,000 unless the legislature orders it to pay the claim. See § 768.28(5), Fla. Stat. (2003). Likewise, claims against it will be controlled by the governmental presuit procedures, and attorneys representing patients against First Physicians Group will be limited to a twenty-five percent contingency fee. See § 768.28(6), (8), Fla. Stat. (2003).

It is understandable that First Physicians Group, the medical community, and patients within Sarasota County would wish to obtain a final legal decision establishing whether this method of creating a nonprofit corporation controlled by a government board is effective in allowing doctors to obtain immunity from malpractice suits without sacrificing the income of private practice. If this method works, then economically it may be logical for many local physicians to join the nonprofit group. It might also be logical for many local patients to seek health care in nearby counties where doctors remain personally and professionally responsible to the patients and liable for negligence based upon the usual, reasonable levels of patient care.

III. THE UNUSUAL ACTION FOR DECLARATORY RELIEF

Sovereign or governmental immunity is usually raised on a case-by-case basis as an affirmative defense by both the governmental agency and its employees. In this case, however, the Hospital Board and First Physicians Group decided to file a separate action for declaratory relief seeking a definitive ruling that they were entitled to sovereign immunity as a matter of law.

The complaint for declaratory relief was filed in June 2001 by the Hospital Board, First Physicians Group, and three of its physicians: Carlos F. Caballero, M.D., Kristen L. Paulus, M.D., and Michael M. Shroder, M.D. These plaintiffs sued Florida Physicians Insurance Corporation, Inc., which is the professional liability insurance company for First Physicians Group and its doctors. They also sued Valerie and Jami Pagan, Mary Colonese, and Audrey Aloise Roehrig.

It is clear that Florida Physicians Insurance Corporation was not truly an adverse party in this action. It has an exclusion in its insurance policy that limits its coverage in the event that the insured has governmental immunity. Thus, First Physicians Group was in the odd, if not unique, position of suing its insurance company to prove that the insurance company was not obligated to provide it with certain coverage. Florida Physicians Insurance Company apparently concluded that it would benefit if First Physicians Group and its doctors had limited liability. Thus, it never took an adversarial role in the trial court and has aligned itself with its insureds in this appeal.

The complaint for declaratory judgment described the remaining defendants as persons who had already filed medical malpractice suits against First Physicians Group and one or more of its doctors. The complaint admitted that First Physicians Group and the relevant doctors had already raised governmental immunity as a defense in the pending lawsuits but claimed a need to resolve the legal issue as to these parties in a separate proceeding.

In describing each of the defendants who were medical malpractice plaintiffs in separate pending lawsuits, the complaint alleged simply that Audrey Aloise Roehrig sued Dr. Caballero for “failing to use the appropriate standard of care in his treatment of’ her. As to Mary Colonese, the complaint with equal brevity claimed that she has sued Dr. Paulus. Finally, as to the Pagans, the complaint alleged that they sued Dr. Shroder for a failure to use the appropriate standard of care in his treatment of Valerie Pagan. No further detail about these malpractice claims was ever alleged or developed below. Because of the limited record in this case, we have no information whatsoever about the treatment of Mrs. Pagan by Dr. Shroder.

Two months after the complaint for declaratory relief was filed, Dr. Caballero voluntarily withdrew as a plaintiff. Thus, he ceased to be a party to the proceedings. The party who had sued him, Ms. Roehrig, initially moved to dismiss the action for declaratory relief. Later, in December 2001, Altom M. Maglio, Esquire, filed an answer on her behalf. Since that time, she has not participated in the lawsuit and the parties seem to have stopped serving her attorney. The order granting summary judgment, the final judgment, and the notice of appeal were not served on Ms. Roehrig or her lawyer. Thus, we can only assume from this record that she is either still an active party in the trial court and that no judgment has been entered against her, or that she was somehow dismissed from the action by documents that are not in our record.

At approximately the same time that Dr. Caballero withdrew from the lawsuit, the plaintiffs filed a notice of voluntary dismissal as to Mary Colonese. However, Dr. Paulus, who allegedly was her treating physician, did not withdraw from the lawsuit. Following the dismissal of Mary Co-lonese, it is not obvious that Dr. Paulus has any legal need to resolve the question of immunity in this action.

As a result of these shifts in the action for declaratory relief, it soon became a lawsuit in which the Pagans’ claim was the only case truly in controversy and the lawsuit was structured only to obtain a resolution of the affirmative defense that First Physicians Group had earlier filed in the Pagans’ malpractice lawsuit. Although the Pagans moved to dismiss the complaint for declaratory relief on the ground that it was an improper lawsuit to resolve this affirmative defense, that motion was denied.

Other parties who had pending claims against First Physicians Group apparently became aware of this lawsuit and were concerned that it could have a binding effect on their claims. Accordingly, separate attorneys representing Maria Torres, Judith Brandt, and Janie Sweet each filed motions to intervene and various documents and attachments supporting their motions. In March 2002, these motions to intervene were denied in two orders that expressly declared that the interve-nors have no legal interest in the outcome of this declaratory judgment action. The trial court ordered and adjudged that “nothing adjudicated in this action will be binding or have any effect by way of res judicata, [or] collateral estoppel” on the in-tervenors. See § 86.091, Fla. Stat. (2001) (providing in declaratory judgment action that “all persons may be made parties who have or claim any interest which would be affected by the declaration. No declaration shall prejudice the rights of persons not parties to the proceedings”). Thus, it is clear that the trial court decided to resolve only the issue of the affirmative defense raised by First Physicians Group in the Pagans’ medical malpractice proceeding.

IV. THE SUMMARY JUDGMENT HEARING

The Hospital Board and First Physicians Group filed motions for summary judgment. The Pagans filed a competing motion for summary judgment. These motions were heard by the trial court in October 2002. The parties filed unusually limited materials prior to this summary judgment hearing. The record contains the affidavit of Della Shaw, who is the chief operating officer of First-Physicians Group. It also contains a deposition of Ms. Shaw taken in the medical malpractice suit filed by Mary Colonese, and another deposition taken in the medical malpractice suit filed by Maria Torres, one of the unsuccessful intervenors. It contains the affidavit of G. Duncan Finlay, M.D., the chief executive officer of Sarasota Memorial Hospital and the Sarasota Memorial Health Care System. It also contains his deposition, which had been taken for purposes of this action and numerous other malpractice lawsuits. Finally, it contains a short affidavit from Brad Lerner, the chief medical administrative officer for First Physicians' Group.

The record contains no pleadings or discovery material from the Pagans’ lawsuit. Thus, we are in the odd situation of affirming a ruling on an affirmative defense when we know virtually nothing about the lawsuit. There' are no depositions or affidavits from any of the doctors involved in the treatment of Mrs. Pagan or any other patient. We know very little about how these doctors practice medicine or how their employment by a nonprofit corporation created by a governmental entity affects that practice.

Apparently, as a matter of litigation tactics, both sides decided that the controlling issue for purposes of summary judgment was whether the Hospital Board exercised sufficient control over First Physicians Group to be considered an instrumentality of the Hospital Board, and both sides believed that the materials in the record were sufficient to decide this issue in their favor. Thus, various other legal and public policy issues that have been argued on appeal were neither raised nor preserved in the trial court.

As to the specific issue argued at summary judgment, which revolved around whether the Hospital Board controlled First Physicians Group, the undisputed facts before the trial court showed that First Physicians Group was created by the Hospital Board, initially funded by the Hospital Board, and remains partially funded by it. The Hospital Board has the power to dissolve First Physicians Group and to claim any remaining assets upon dissolution. The nine members of First Physicians Group’s board of directors are elected by the Hospital Board and serve at the pleasure of the Hospital Board. Under the bylaws and articles of incorporation of First Physicians Group, a majority of its board of directors must be composed of sitting Hospital Board members. The chief executive officer of the Sarasota Memorial Health Care System is required to also be president of First Physician Group. Approximately forty physicians have entered into employment agreements with First Physicians Group that provide for full-time employment with First Physicians Group and prohibit the maintenance of private practices or the treatment of any patients other than patients of First Physicians Group.

At the hearing, the Hospital Board and First Physicians Group successfully argued that “the structure dictates the control” and that the Hospital Board had structural control of First Physicians Group and therefore First Physicians Group and its employees were “agencies” of the Hospital Board entitled to sovereign immunity. See, e.g., Prison Rehabilitative Indus. & Diversified Enters., Inc. v. Betterson, 648 So.2d 778 (Fla. 1st DCA 1994); Shands Teaching Hosp. & Clinics, Inc. v. Lee, 478 So.2d 77 (Fla. 1st DCA 1985). The Pagans similarly focused on the Hospital Board’s structural control of First Physicians Group as the decisive issue in determining whether First Physicians Group was a corporation primarily acting as an instrumentality or agency of the state, counties, or municipalities. See § 768.28(2). The Hospital Board argued that the doctors would have immunity if they were directly employed by the Hospital Board to work inside the hospital and that the creation of the nonprofit corporation did not alter this result.

At the conclusion of these arguments, the trial judge stated:

It seems to me that what the hospital is doing is. spreading around their sovereign immunity because of what is perceived to be the malpractice crisis.
However, in following the law, I mean, I’m not here for public purpose — public policy purpose, you know, that’s really not what I’m here for today, because I think it stinks. I think it’s wrong. I think it’s uncompetitive and I think the hospital — I think they ought to fix it by doing away with the independent corporation and just have these people as employees of the hospital. There would be no question, you know, but anyway, I can’t tell them how to do their business.
In following the law, it appears that they followed what they have to do to create this subsidiary or affiliate, whatever you want to call it, and I’m going to grant summary judgment.
I find that they’re entitled to sovereign immunity, as much as I think it’s bad public policy, and I hope that an appellate court would consider all of those arguments.

The trial court then entered a summary judgment order that stated: “Plaintiffs’ Motion for Judgment is hereby granted. [First Physicians Group] and each of its employee physicians are entitled to sovereign immunity under Florida Statutes § 768.28.” This language was repeated in the final judgment.

In light of the limited arguments made below and thus preserved for appellate review, and in light of the existence of case law that supports the trial court’s conclusions based on those arguments, the Pagans have not demonstrated a basis for this court to reverse the final summary judgment in this case. See, e.g., Betterson, 648 So.2d 778. We therefore affirm the final summary judgment as to these parties.

We recognize that the language of the trial court’s orders was substantially broader than was necessary to resolve the dispute between First Physicians Group and one or two of its doctors, on one side, and the Pagans, on the other side. The language could be misread to have binding effect on the intervenors or other nonparties. However, the trial court clearly did not intend this, and section 86.091 does not permit it. See also Fasig v. Fla. Soc’y of Pathologists, 769 So.2d 1151, 1154 (Fla. 5th DCA 2000). Dr. Caballero affirmatively opted out of this ruling, and the great majority of doctors at First Physicians Group have neither been involved in these proceedings nor asserted a claim of sovereign immunity to limit their own liability to claims of wanton and willful misconduct. The trial court’s ruling is restricted to the claim between the Pagans and Dr. Michael M. Shroder and First Physicians Group as Dr. Shroder’s employer.

It appears that the Hospital Board, First Physicians Group, and the two physicians who remain in this litigation are seeking an appellate court opinion holding, as a matter of law, that First Physicians Group and its employees are entitled to sovereign immunity in any medical malpractice action. It is a long-standing rule of appellate jurisprudence that the appellate court should not undertake to resolve issues which, though of interest to the bench and bar, are not dispositive of the particular case before the court. Marion County Hosp. Dist. v. Akins, 435 So.2d 272, 273 (Fla. 1st DCA 1983). Accordingly, while we affirm the trial court’s ruling as it affects these parties on the basis of this limited record and based on the specific issues preserved for review by this court, the trial court was not authorized to make a broader legal holding, nor does this appellate court have a record or adequate arguments upon which it could announce any broader rule of law.

Affirmed.

SILBERMAN, J„ Concurs.

CANADY, J., Concurs in result only.

CANADY, Judge,

Concurring specially.

I agree with the majority’s determination that the declaratory judgment in favor of the appellees should be affirmed. I write separately to explain the basis for my conclusion that the Hospital Board is entitled to sovereign immunity under section 768.28. Because I disagree with various aspects of the majority’s opinion, I have refrained from joining that opinion. In particular, I disagree with the majority’s repeated characterization of the underlying declaratory judgment action as an “unusual action,” as well as its statement that “the complex issues presented by this action for declaratory relief were not fully litigated.” I also disagree with the majority’s expressed unwillingness to announce a “rule of law” concerning the issue of statutory interpretation decided in this case.

In this concurring opinion, I will first comment briefly on my disagreement with the majority’s opinion. Then, I will outline the issues presented by the parties. Finally, I will set forth the analysis which supports my conclusion that the trial court’s decision should be affirmed.

I. THE MAJORITY OPINION

The majority acknowledges that the issue of whether the declaratory judgment action “was an improper lawsuit to resolve [the sovereign immunity] affirmative defense” raised in the underlying tort action by the Pagans is not at issue in this appeal. Nonetheless, the majority persists in calling into question the propriety of the declaratory judgment action. In my view, on the record before us, this is totally unwarranted.

Section 86.011, Florida Statutes (2002), provides, in pertinent part, that a “court may render declaratory judgments on the existence or nonexistence (l)[o]f any immunity, power, privilege or right.” (Emphasis added.) The issue of whether a particular entity is entitled to sovereign immunity appears to fall squarely within the express provision of section 86.011. Where the status of an entity under section 768.28 has been challenged or is otherwise in doubt, it does not seem at all “unusual” for that entity to seek a declaratory judgment concerning its status. See Haines City v. Allen, 509 So.2d 982, 988 (Fla. 2d DCA 1987) (discussing “declaratory judgment action asking the circuit court to declare the city’s rights with regard to sovereign immunity under section 768.28”); see also Strachan Shipping Co. v. Spigner, 573 So.2d 926, 927 (Fla. 1st DCA 1991) (“The determination of the existence of an immunity [under the workers’ compensation law] is an appropriate subject for declaratory relief.”).

Similarly unwarranted is the majority’s statement that “the complex issues presented by this action for declaratory relief were not fully litigated.” The dispositive issue of whether First Physicians Group was an instrumentality of the Hospital Board wás extensively litigated. There is no suggestion in the record that either the appellants or the appellees were in any way foreclosed from fully developing any factual issues that they deemed material to the critical legal issues that they chose to present to the trial court. The majority states that “[w]e know very little about how these doctors practice medicine or how their employment by a nonprofit corporation created by a governmental entity affects that practice.” The majority also stresses that “we know virtually nothing about the lawsuit” brought by the Pagans. •Whatever, bearing facts related to such matters might have on some hypothetical issues that the parties have not presented, they have no demonstrated connection with the issues actually before the trial court and this court. It is hard to see how the details of the Pagans’ malpractice claim or facts concerning how the employee physicians “practice medicine” could have any relevance to the legal issue of whether the entity employing the treating physician was entitled to sovereign immunity under section 768.28. In short, I do not believe that the record before us is in any way deficient.

Unlike the majority, I see no reason to shrink back from announcing as a rule of law that a corporate entity such as First Physicians Group, which was established by a sovereignly immune independent establishment of the state and which is subject to the type of control to which First Physicians Group is subject, is entitled to sovereign immunity. Such an announced rule is necessarily limited by the material facts of the case before us and the issues actually litigated. See Adelman Steel Corp. v. Winter, 610 So.2d 494, 502 (Fla. 1st DCA 1992) (“The holding or ratio deci-dendi of a decision is appropriately'defined as the outcome of the case on the precise points discussed in the opinion stated in terms of the facts found to be material to the court’s decision.”); see also Arthur L. Goodhart, Determining the Ratio Deciden-di of a Case, 40 Yale L.J. 161 (1930). The disposition of future cases presenting different material facts or raising different legal issues would, of course, not be bound by the rule announced in this case. But future cases presenting the same material facts and the same legal issues should be guided by the precedent established by this court’s decision of the instant case. I am concerned that the majority opinion may be rehd to suggest that the decision of this case will not have such precedential effect. Denying precedential effect to the decision of this case in future cases presenting similar facts and issues would, however, be inconsistent with the fundamental principle that like cases should be treated alike. See Gessler v. Dep’t of Bus. & Prof'l Regulation, 627 So.2d 501, 504 (Fla. 4th DCA 1993) (“The concept of stare decisis, by treating like case's alike and following decisions rendered previously involving similar circumstances, is a core principle of our system of justice.”).

II. ISSUES ON APPEAL

The Pagans argue that the Hospital Board’s control over First Physicians Group is insufficient for First Physicians Group to be considered an instrumentality of the Hospital Board. The Pagans contend that day-to-day operational control over a corporation is necessary to establish that the corporate entity is an instrumentality or agency under section 768.28(2). In making this argument, the Pagans rely on the case law articulating the requirement relating to control which is necessary to establish the existence of an employment or agency relationship. They also rely on the ease law addressing the circumstances in which piercing of the corporate veil is justified. They contend that the sovereign immunity of the hospital district extends to First Physicians Group only if First Physicians Group can be considered the “alter ego” of the hospital district. Finally, the Pagans argue that the extension of sovereign immunity to First Physicians Group — which they characterize as essentially a private medical practice — is inconsistent with the public policy underlying the sovereign immunity statute. The Pagans contend that the Hospital Board improperly “has, in effect, attempted to sell' its sovereign immunity to what is, for all practical 'purposes, a private medical practice.” This public policy argument was not specifically raised by the Pagans in the proceedings before the trial court.

The Hospital Board argues that it is the right of control, not actual day-to-day operational control, that is sufficient to establish that an entity is acting as an instrumentality or agency. The Hospital Board emphasizes its role in creating First Physicians Group, its power to dissolve First Physicians Group and to appoint and remove all the members of the First Physicians Group board of directors, as well as the role of its officers and employees in the management of First Physicians Group. The Hospital Board argues that the Pagans should not be allowed to raise the public policy argument for the first time on appeal but that the extension of sovereign immunity to First Physicians Group is in any event not inconsistent with the public policy underlying section 768.28.

III. ANALYSIS

The hospital district is an “independent establishment of the state” which is sover-eignly immune from liability pursuant to the provisions of section 768.28. See El-dred, 498 So.2d 911, 913-14 (holding that the provisions of section 768.28 waiving sovereign immunity and limiting liability are applicable to hospital special taxing district as an independent establishment of the state under section 768.28(2)). The hospital district’s immunity is not disputed by the Pagans.

It is also well established that a physician employed by a sovereignly immune entity is entitled to the benefit of sovereign immunity. See Pub. Health Trust v. Valcin, 507 So.2d 596, 601 (Fla.1987); White v. Hillsborough County Hosp. Auth., 448 So.2d 2, 2 (Fla. 2d DCA 1983); Bates v. Sahasranaman, 522 So.2d 545, 546 (Fla. 4th DCA 1988); Jaar v. Univ. of Miami, 474 So.2d 239, 244 (Fla. 3d DCA 1985). No facts have been adduced to show that the physicians who practice with First Physicians Group are anything other than employees of First Physicians Group. The liability of the appellee physicians thus depends on the status of First Physicians Group. If First Physicians Group is subject to the protection of section 768.28, its physician employees are generally immune from liability for negligent acts performed within the scope of their employment. See § 768.28(9).

The parties agree that the dispositive question presented by this case therefore is whether First Physicians Group is entitled to sovereign immunity by virtue of its relationship with the Hospital Board. The answer to this question turns on the meaning of the phrase “corporations primarily acting as instrumentalities or agencies of the state” in section 768.28(2), which 'defines the entities entitled to sovereign immunity. I conclude that the undisputed facts concerning the relationship between First Physicians Group and the Hospital Board, an independent establishment of the state, establish that First Physicians Group is a “eorporation[ ] primarily acting as [an] instrumentalit[y] ... of the state.”

In some circumstances, the analysis of whether a corporate entity is an instrumentality or agency focuses on the extent to which the corporate entity has been given the authority and responsibility to carry out a management function that would otherwise be directly carried out through governmental officials. See Skoblow v. Ameri-Manage, Inc., 483 So.2d 809, 811, 812 (Fla. 3d DCA 1986) (holding that corporation, under contract with state “to provide direct management for” state hospital and to coordinate long-range planning for - the hospital, “was operating as an agency of the state”). Cf. Sebring Utils. Comm’n v. Sicker, 509 So.2d 968, 970 (Fla. 2d DCA 1987) (holding that utilities commission which was created in city charter as part of city government was entitled to sovereign immunity pursuant to section 768.28).

Generally, however, the analysis of whether a corporation is a governmental instrumentality or agency centers on the issue of control. In order for an entity to be considered an instrumentality or agency, it must be subject to something more than the sort of control that is exercised by the government in its regulatory capacity. See United States v. Orleans, 425 U.S. 807, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976) (holding that community action agency, a nonprofit corporation established pursuant to the Economic Opportunity Act and subject to the federal standards and regulations, was not an instrumentality of the United States under Federal Tort Claims Act). The control that flows from a simple contractual arrangement between the government and a corporate entity ordinarily will not be considered sufficient to establish that the contracting corporate entity is an instrumentality or agency of the state. Cf. Mingo v. ARA Health Servs., Inc., 638 So.2d 85, 86 (Fla. 2d DCA 1994) (holding that contract defining corporate providers as independent contractors effectively “disavows [the corporation] as a corporation primarily acting as an instrumentality or agency of the state or its subdivisions”). And the mere fact that a corporation is created by the government will not necessarily establish that it is a governmental agency or instrumentality. See Doe v. Am. Red Cross, 727 F.Supp. 186 (E.D.Pa.1989) (holding that federally chartered corporation is not a government instrumentality).

The common understanding of the terms “agency” and “instrumentality” points — at least in a general way — to the type of governmental control necessary for a corporation to be entitled to sovereign immunity under section 768.28(2). An instrumentality is defined as “something that serves as an intermediary or agent through which one or more functions of a controlling force are carried out,” or as “a part, organ, or subsidiary branch especially] of a governing body.” Webster’s Third International Dictionary 1172 (3d ed.1993). Agency has a similar meaning. It is defined as “a person or thing through which power is exerted or an, end is achieved,” or as “an establishment engaged in doing business for another.” Id. at 40.

Further guidance is provided by the ease law addressing the application of section 768.28. The two leading cases— Shands Teaching Hospital & Clinics, Inc., 478 So.2d 77, and Betterson, 648 So.2d 778 — -were both decided by the First District. In Shands the court concluded that the nonprofit corporation to which the State Board of Education leased the Shands Teaching Hospital was not entitled to the benefit of sovereign immunity. The corporate entity was determined to be “an autonomous and self-sufficient entity, one not primarily acting as an instrumentality on behalf of the state.” Shands, 478 So.2d at 79. In making this determination, the court interpreted the statutory provision governing the establishment of the nonprofit corporation — section 240.513, Florida Statutes (1985)' — -as “reflecting] that Shands’ day-to-day operations are not under direct state control.” Id. The court referred to the case law under the Federal Tort Claims Act, which states that “the critical factor ” in “... ‘determining whether an entity is a federal agency ... is the existence of federal government control over the “detailed physical performance” and “day to day operation” of that entity....’ United States v. Orleans, 425 U.S. 807, 814, 96 S.Ct. 1971, 1975, 48 L.Ed.2d 390 (1976)’.” Id. (quoting Lewis v. United States, 680 F.2d 1239, 1240 (9th Cir.1982)).

In Betterson, the court reached a different conclusion regarding the status of the nonprofit corporation entity — commonly known as PRIDE — which operated the prison industry program. Based on the statutory provision requiring the Department of Corrections to “lease the prison industry program to a nonprofit corporation ‘organized solely for the purpose of operating’ the program,” the court determined that PRIDE had from its inception acted primarily as an instrumentality of the state. Id. at 780; see ch. 81-125, § 1, at 254, Laws of Fla.; § 946.502, Fla. Stat. (1988). While recognizing that under the statute “PRIDE was accorded substantial independence in the running of the work programs,” the court focused on the fact that PRIDE’s “essential operations nevertheless remained subject to a number of legislatively mandated constraints over its day-to-day operations.” Id. at 780. Among the constraints mentioned by the court were requirements that: (a) PRIDE’s sale to private entities be subject to approval by the governor; (b) PRIDE be subject to various regular state audits; (c) PRIDE’s policies and procedures relating to the use of inmates in its work program be subject to approval by the Department of Corrections; and (d) the state have a reversionary interest in property acquired by PRIDE relating to correctional work programs. The court stated: “These statutory constraints cumulatively constitute sufficient governmental control over PRIDE’s daily operations to require the conclusion as a matter of law that PRIDE has, from its inception, acted primarily as an instrumentality of the state.” Id. at 780-81.

In both Betterson and Shands, the issue of control played a prominent part in the analysis of whether the nonprofit corporate entity was acting primarily as an instrumentality of the state. Both cases make reference to the significance of governmental control over the “day-to-day operations” of. the corporate entity whose status was at issue. See Betterson, 648 So.2d at 780 (referring to statute which “contained numerous provisions for extensive governmental control over PRIDE’s day-to-day operation”); Shands, 478 So.2d at 79 (referring to statutory provisions reflecting that “Shands’ day-to-day operations are not under direct state control”). There is, however, no bright line division between the “extensive governmental control” that was present in Betterson and the “direct [governmental] control” that was absent in Shands. The most that can be drawn from Betterson and Shands is that the “substantial independence” of any entity, coupled with significant governmental “constraints over [the entity’s] day-to-day operations,” Betterson, 648 So.2d at 780, will support a determination that the entity is an instrumentality, while “an autonomous and self-sufficient entity,” whose “day-to-day operations are not under direct [governmental] control,” Shands, 478 So.2d at 79, will not be considered an instrumentality.

In the case law — outside the sovereign immunity context — addressing the circumstances where a principal — agent relationship exists, the issue of control is also crucial. The cases make clear, however, that when analyzing the issue of control, the focus should be on “the right to control, rather than actual control.” Villazon v. Prudential Health Care Plan, Inc., 843 So.2d 842, 853 (Fla.2003) (citing Nazworth v. Swire, Inc., 486 So.2d 637, 638 (Fla. 1st DCA 1986) (“The standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent. More particularly, it is the right of control and not actual control, which determines the relationship between the parties.”) (citations omitted)). Thus, the existence of a principal-agent relationship turns on whether the principal has a sufficient right of control and not on the extent to which the principal exercises actual control.

Although particular entities “may be deemed agents of the state, [and] not agencies of the state” under section 768.28(2), Sierra v. Associated Marine Insts., Inc., 850 So.2d 582, 592 (Fla. 2d DCA 2003), review denied, 869 So.2d 538 (Fla.2004), these general principles governing the existence of principle-agent relationships nonetheless shed light on the question at issue here. Just as an ordinary agency relationship can exist without the exercise of actual day-to-day control by the principal, so can a corporation be acting primarily as an instrumentality or agency of a sovereignly immune entity without that entity exercising actual control over the day-to-day operations of the corporation.

The Pagans argue that First Physicians Group should not be considered an instrumentality or agency under section 768.28(2) unless the Hospital Board’s control over First Physicians Group is such that the corporate veil could be pierced. This is nonsensical. It imputes to the legislature an intention to grant corporate entities immunity under section 768.28(2) only if those corporate entities are sham entities and if there is a showing of improper conduct in connection with the operation of the entities. See Dania Jai-Alai Palace, Inc. v. Sykes, 450 So.2d 1114, 1117, 1121 (Fla.1984) (holding that “allegations of mere instrumentality and improper conduct clearly state a cause of action” for piercing the corporate veil and reviewing extensive case law “holding] that the corporate veil may not be pierced absent a showing of improper conduct”). A “mere instrumentality” or “alter ego” which is used as a “sham” and for some improper purpose is in an entirely different category from an entity acting primarily as a governmental instrumentality or agency. The type of control necessary to establish that a corporation is being used as a “sham” and “alter ego” or “mere instrumentality” is entirely different from the control necessary to establish that a corporate entity is entitled to immunity pursuant to section 768.28(2).

It would be unfaithful to the plain meaning of section 768.28(2) to impose a requirement for control of a type that is inconsistent with the separate corporate existence of the entity acting primarily as an instrumentality or agency. The authorization of immunity for corporations under section 768.28(2) necessarily involves a recognition that those corporations will carry out their operations in a manner that is separate and distinct from the operations of the governmental entity to which they are related. The control of the governmental entity over the corporation necessary to establish an instrumentality relationship under section 768.28(2) does not require that the corporation be subsumed in the governmental entity. The Pagans’ argument to the contrary would effectively rewrite section 768.28(2).

First Physicians Group rightly points out that since, the public policy argument raised by the Pagans was not presented to the trial court it is not properly argued on appeal. See Tillman v. State, 471 So.2d 32, 34 (Fla.1985) (“In order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation if it is to be considered preserved.”); Dober v. Worrell, 401 So.2d 1322, 1324 (Fla.1981) (holding that it is “inappropriate for [an appellant] to raise an issue- for the first time on appeal from summary judgment ); Clock v. Clock, 649 So.2d 312, 315 (Fla. 3d DCA 1995) (“[A]n appellate court will not consider any ground for objection not presented to the trial court; review is limited to the specific grounds raised below.”). Such an unpreserved issue cannot be the basis for reversal of the judgment entered by the trial court.

All the efforts of the Pagans to establish that First Physicians Group is not an instrumentality or agency of the Hospital Board run aground on the reality of the Hospital Board’s undeniable right to control the operations of First Physicians Group. First Physicians Group began its existence as a creature of the Hospital Board, and it carries out its ongoing operations as a creature of the Hospital Board. The Hospital Board effectively directs the management of First Physicians Group through the appointment of all the members of the board of directors of First Physicians Group and by the placement of the chief executive officer of the Hospital Board’s health care system in the position of president of First Physicians Group. The Hospital Board’s authority to direct the management of the ongoing operations of First Physicians Group strongly supports the conclusion that First Physicians Group is an “intermediary ... through which [the] functions of a controlling force are carried out,” Webster’s, supra, at 1172, and thus properly considered an “instrumentality” as that term is commonly understood. See also Lebron v. Nat’l R.R. Passenger, 513 U.S. 374, 399-400, 115 S.Ct. 961, 130 L.Ed.2d 902 (1995) (holding that “when the State has specifically created [a] corporation for the furtherance of governmental objectives[ ] and ... controls the operation of the corporation through its appointees .... [t]he corporation is part of the Government for purposes of the First Amendment”). There is no basis for concluding that First Physi-dans Group acts as an autonomous and self-sufficient entity.” Shands, 478 So.2d at 79. On the contrary, First Physicians Group is subject to significant governmental “constraints over [its] day-to-day operations.” Betterson, 648 So.2d at 780.

IV. CONCLUSION

I therefore conclude that the trial court correctly decided as a matter of law that First Physicians Group is an instrumentality of the Hospital Board. First Physicians Group and the appellee physicians thus are entitled to sovereign immunity under section 768.28.

      . Ch. 26468, Laws of Fla. (1949).

      . Our record does not contain any studies or data that may have been generated to support these conclusions.

      . Our record contains information from a website that provides more detailed information about this group. See http://www.first-physiciansgroup.com.

      . The deposition of G. Duncan Finlay, M.D., the president and CEO of Sarasota Memorial Health Care System, indicates that the Hospital Board infused more than $4,000,000 into this nonprofit corporation in fiscal year 2001. Dr. Finlay explained that when- the physicians in this group were in private practice they generated income from laboratory work and x-rays. This work is now performed by other groups controlled by the Hospital Board. Apparently, the infusion of government money into this nonprofit corporation is designed to offset or compensate the doctors for this loss in personal revenue.

      . The Pagans have not challenged the denial of their motion to dismiss in this appeal. Accordingly, we do not rule upon the correctness of that order.

      . Indeed, approximately one-third of our entire record is consumed by the filings of the parties who wished to intervene.

      . Although the fact is not mentioned by the Shands court, the statute provided for the “governance of the nonprofit corporation by a board of directors appointed by the President of the University of Florida and chaired by the Vice President for Health Affairs of the University of Florida.’’ § 240.-513(3)(b)(l).

      . Although it was not mentioned by the Better-son court, the statute also required a showing that "[t]he members of the corporation were appointed by the Governor and confirmed by the Senate.” § 946.504(5)(a)(l).


source: Caselaw Access Project

license: Public Domain

text:
    John M. PAFF, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2950.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    Rehearing Denied Sept. 16, 2004.

      James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Chief Judge.

John M. Paff appeals a judgment withholding adjudication for possession of cocaine. Mr. Paff entered an open plea of guilty to the charge, reserving the right to appeal the denial of his dispositive motion to suppress the cocaine. We reverse the judgment because law enforcement officers did not have a reasonable suspicion to stop Mr. Paffs vehicle. Even if Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), applies to the stop of a vehicle, Mr. Paff was not violating any traffic regulation and his vehicle was not otherwise engaged in flight when he was seized and his car searched.

Around midnight on August 24, 2002, a deputy sheriff on patrol in Sarasota pulled into a gas station and noticed two cars parked in a shadowy area of the driveway. The cars were stopped, each facing an opposite direction with the driver’s side windows aligned. This was not a designated parking area, and the cars were obstructing traffic flow through the gas station, which apparently was .open. As the deputy sheriff pulled into the station, he believed that the occupants of the cars noticed his vehicle. Both cars then left the gas station. Although the deputy sheriff described the two cars as leaving the gas station “real quick,” he admitted that neither driver committed any traffic infraction when leaving the gas station. Because the deputy knew that drug deals commonly occurred in this parking lot, he believed that the occupants of the vehicles had participated in a drug transaction. Thus, he immediately performed a Terry stop of Mr. Paffs vehicle and detained it to await the arrival of a police dog to sniff the vehicle for drugs. After a considerable period, the canine unit arrived and the dog alerted to an area within the vehicle. The deputy searched the interior and discovered two rocks of crack cocaine, which Mr. Paff was charged with possessing.

Mr. Paff filed a motion to suppress the cocaine, asserting that the deputy sheriff lacked reasonable suspicion to stop his vehicle. See § 901.151(2), Fla. Stat. (2002); Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The circuit court denied the motion, based primarily upon the State’s argument that Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570, applied to this scenario and supported a finding that the deputy sheriff had a reasonable suspicion of criminal activity sufficient to permit an investigatory stop of Mr. Paffs vehicle.

In Wardlow, officers patrolling a “high crime area” observed Wardlow, who upon seeing them, turned and fled, running through a gangway, an alley, and then onto the street. 528 U.S. at 121-22, 120 S.Ct. 673. In holding that the officers had a reasonable suspicion to stop Wardlow based upon his “unprovoked flight” in the “high crime area,” the United States Supreme Court noted that “nervous, evasive behavior is a pertinent factor in determining reasonable suspicion.” Id. at 124, 120 S.Ct. 673. The Supreme Court explained, “Headlong flight — wherever it occurs — is the consummate act of evasion,” and “[fjlight, by its very nature, is not ‘going about one’s business.’ ” Id. at 124, 125, 120 S.Ct. 673.

As this court previously noted, prior to the Supreme Court’s opinion in Wardlow, Florida courts generally held that a person’s elusive behavior upon spotting a police officer in a high-crime area did not provide an officer with reasonable suspicion that the person had committed, was committing, or was about to commit a crime. See Copeland v. State, 756 So.2d 180 (Fla. 2d DCA 2000). Wardlow thus effectively reversed Florida decisions suppressing evidence retrieved as a result of a stop of a defendant based upon that person’s presence in a high-crime area and his or her flight upon seeing police.

Prior to Wardlow, this court held that the stop of a motor vehicle under circumstances similar to those presented in this ease was unlawful because the circumstances did not support a reasonable suspicion of criminal activity. See Jordan v. State, 707 So.2d 338 (Fla. 2d DCA 1998) (citing McCloud v. State, 491 So.2d 1164 (Fla. 2d DCA 1986)). The State suggests that Wardlow effectively overruled this line of cases. We disagree. See McMaster v. State, 780 So.2d 1026 (Fla. 5th DCA 2001).

Flight on foot is distinctly different than flight in a car. When “headlong flight” occurs on foot, the defendant’s intent to elude an officer may be clear, even though no law is broken. When “flight” occurs in a vehicle, the vehicle often conceals the emotions of its occupants and it ’is more difficult to determine that such a defendant is demonstrating “nervous, evasive behavior,” or is intending to engage in “headlong” flight. Wardlow, 528 U.S. at 124, 120 S.Ct. 673. A car that obeys all traffic regulations when leaving a location when a police car arrives would seem to be the motor vehicle equivalent of a person who simply walks away from an officer on foot. Such a pedestrian does not invoke the rule of Wardlow. See, e.g., Lee v. State, 868 So.2d 577 (Fla. 4th DCA 2004) (refusing to apply Wardlow to justify stop when defendant was part of crowd that merely “dispersed” upon approach of law enforcement and defendant was simply walking quickly).

In this case, Mr. Paff simply drove away from the gas station in a manner and at a rate of speed that did not violate any traffic laws. The officer did not observe any transaction or discussion between the occupants of the .two cars nor did he see Mr. Paff acting nervously. The officer did not testify that Mr. Paff was driving evasively. He stopped Mr. Paffs car as soon as it left the station and did not follow the car for a few blocks to observe the types of conduct that officers sometimes describe as evasive. This cannot be considered “headlong flight” from the sheriffs deputy, even if it was triggered by the sight of the patrol car. Particularly in light of the officer’s testimony that the cars were blocking the through-way of the gas station when the deputy sheriff pulled in behind them, Mr. Paffs behavior was fully consistent with “going about one’s business” when approached by an officer. See Wardlow, 528 U.S. at 125, 120 S.Ct. 673; Lee, 868 So.2d 577. Under these circumstances, the deputy sheriff had only a mere hunch, and not a reasonable suspicion, that Mr. Paff had committed, was committing, or was about to commit a criminal offense. See Jordan, 707 So.2d 338. We therefore reverse Mr. Paffs judgment and sentence and remand with instructions that the circuit court grant the motion to suppress.

Reversed and remanded.

SILBERMAN, J., concurs.

CANADY, J., dissents with opinion.

CANADY, Judge,

Dissenting.

Because I disagree with the majority’s conclusion that the investigative stop of Mr. Paffs vehicle was not justified by a reasonable suspicion of criminal activity, I dissent.

“[Ujnprovoked flight upon noticing the police” is a factor that' can be utilized in establishing a reasonable suspicion because it demonstrates “nervous, evasive behavior.” Wardlow, 528 U.S. at 124 120 S.Ct. 673. Such behavior can be exhibited by the driver of a vehicle even when the driver violates no traffic regulation. See United States v. Brignoni-Ponce, 422 U.S. 873, 885, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975) (“The [vehicle] driver’s behavior may be relevant, as erratic driving or obvious attempts to evade officers can support a reasonable suspicion.”); United States v. Juvenile TK, 134 F.3d 899, 903 (8th Cir. 1998) (“[P]olice are entitled to be suspicious of vehicular movement that, while not illegal, may be reasonably perceived as evasive.”); see also United States v. Arvizu, 534 U.S. 266, 275-76, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002) (holding that conduct of vehicle driver was relevant to reasonable suspicion determination and stating that “a driver’s slowing down, stiffening of posture, and failure to acknowledge a sighted law enforcement officer” would be “quite unusual” in certain circumstances).

In the instant case, the officer who effected the stop of Mr. Paffs vehicle testified that, when he approached the service station where Mr. Paffs vehicle was located, “[a]s soon as” Mr. Paff saw the officer he “took off’ — that is, Mr. Paff “drove off real quick.” The officer’s testimony establishes that Mr. Paffs reaction to the officer’s appearance at the scene was to make a hasty departure. Considering such a hasty departure triggered by the appearance of the police as an instance of “nervous, evasive behavior” is quite reasonable. Wardlow, 528 U.S. at 124, 120 S.Ct. 673.

In making his hasty departure, Mr. Paff was not simply “ignoring] the police and go[ing] about his business.” Id. at 125, 120 S.Ct. 673. As the court made clear in Wardlow, flight from the police is the antithesis of ignoring the police and going about one’s business. Id. Indeed, Mr. Paff apparently instantaneously stopped going about whatever business he may have been engaged in with the driver of the vehicle which was “parked side by side, very close, window to window” with Mr. Paffs vehicle.

This conduct of Mr. Paff, although “not necessarily indicative of wrongdoing,” was “certainly suggestive of such.” Id. at 124, 120 S.Ct. 673. Mr. Paffs flight, without more, would not be sufficient to establish the basis for a reasonable suspicion of criminal activity. But in making the necessary “commonsense judgments and inferences about human behavior” that is the basis for a determination that reasonable suspicion exists the detaining officer was entitled to consider Mr. Paffs hasty departure as a relevant factor. Id. at 125, 120 S.Ct. 673.

In making a determination regarding whether reasonable suspicion exists, “the totality of the circumstances — the whole picture — must be taken into account. Based upon that whole picture the detaining officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity.” United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273-74, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690).

The “cumulative information” available to the detaining officer here supported the officer’s conclusion that criminal activity was afoot and that further investigation was warranted. In addition to the hasty departure of Mr. Paff and the driver of the other car, additional factors in the totality of circumstances pointed toward the conclusion that criminal activity was afoot. The area was a high crime area. Indeed, the specific location of Mr. Paffs vehicle was a location at which it was common for drug transactions to take place. The position of the two vehicles, parked in close proximity — with the drivers’ windows lined up — is also a factor relevant to the reasonable-suspicion determination. This combination of circumstances established “something more than an ‘inchoate and unparticularized suspicion or “hunch.” ’ ” United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989) (quoting Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). Although each of the relevant circumstances would individually be insufficient to justify an investigative stop, taken together they support the conclusion that the detaining officer had a reasonable suspicion that criminal activity was afoot.

It is true that there was a possible innocent explanation for Mr. Paffs conduct. “A determination that reasonable suspicion exists, however, need not rule out the possibility of innocent conduct.” Arvizu, 534 U:S. at 278, 122 S.Ct. 744. Accordingly, I disagree with the majority’s view that the officer’s testimony concerning the location of the two cars necessarily negates the conclusion that Mr. Paffs behavior was evasive. The detaining officer testified that someone parked in the area where Mr. Paff was parked “would ... be obstructing traffic that’s coming and going in and out of the parking lot.” This testimony was an elaboration on the officer’s testimony that Paff was parked in an area that was a “flow-way” through the parking lot and not a “normal place for people to park at all.” None of the testimony establishes that the entire flow-way was in fact blocked by the two cars and that they necessarily were required to move in order to make way for the approaching vehicle driven by the officer. It is possible to infer such an explanation for Mr. Paffs departure, but such an inference is not required by the testimony concerning the pertinent circumstances. Moreover, the circumstance of the location of the vehicles in no way provides a necessarily sufficient explanation for the haste of Mr. Paffs departure. In sum, the “possibility of innocent conduct” by Mr. Paff does not mean that the detaining officer’s assessment of the totality of the circumstances— and his resulting suspicion concerning Mr. Paff s conduct — was unwarranted. Id.

I also differ with the majority’s conclusion that Mr. Paff s departure cannot be considered “headlong flight.” Headlong means simply “undertaken quickly and suddenly.” Random House Unabridged Dictionary 881 (2d ed.1993). Headlong is synonymous with “hasty.” Id. The detaining officer’s testimony that Mr. Paff “took off’ is sufficient to support the conclusion that he was engaged in headlong flight.

On the basis of the foregoing analysis, I would uphold the trial court’s determination that the investigative stop of Mr. Paff was based on reasonable suspicion and affirm the judgment withholding adjudication for possession of cocaine.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

        . In F.E.A. v. State, 804 So.2d 528, 530 (Fla. 1st DCA 2002), the First District stated its "belief' that Jordan "may have been overruled by Wardlow," but the First District specifically declined to reach the issue. In F.E.A., officers observed the defendant run, jump into a car, and "speed-away.” F.E.A., 804 So.2d at 529. This behavior is significantly more consistent with “headlong flight” than the behavior described in Jordan or in the present case. In cases in which the only "flight” alleged is the defendant's driving away in a vehicle in a manner that does not violate the traffic laws, we conclude Jordan applies and has not been overruled by Ward-low. Accord McMaster, 780 So.2d 1026.


author: COVINGTON, Judge.

text:
    Brent Michael THORNTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4659.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2004.

      James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   COVINGTON, Judge.

Brent Michael Thornton appeals a judgment convicting him of sexual battery on a child under twelve years of age. He was sentenced to life imprisonment and deemed a sexual predator. The victim is Thornton’s daughter, who was between the ages of six and nine when the events occurred. On appeal, Thornton argues that the trial court erred in denying his motion for judgment of acquittal because the State presented no evidence of vaginal penetration. He also alleges that the trial court erred in admitting prejudicial collateral act evidence. We reverse based on the first issue and thus need not reach Thornton’s second claim.

Section 794.011(l)(h), Florida Statutes (2000), defines “sexual battery” as:

oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object....

In Richards v. State, 738 So.2d 415, 416 (Fla. 2d DCA 1999), we set forth the elements necessary to sustain a conviction for sexual battery as compared to a lewd and lascivious act:

[S]exual battery can occur when the defendant’s mouth has “union” with the victim’s “sexual organ,” but the defendant’s finger must actually “penetrate” the vagina. If the defendant’s finger does not penetrate the vagina, but only touches the vulva, the crime would appear to be a lewd and lascivious act.

The victim here testified that Thornton touched her on her private parts. When asked whether Thornton ever “put his finger inside of [her] private area,” she responded, “Not that I think of it.” Because “penetration requires some entry into the [vagina], however slight,” id. at 418, the State in this case presented insufficient evidence to meet its required burden. See also Seagrave v. State, 802 So.2d 281, 287 n. 7 (Fla.2001); Peters v. State, 861 So.2d 1236, 1237 (Fla. 2d DCA 2003). Therefore, Thornton’s conviction for capital sexual battery must be reversed. See, e.g., Ready v. State, 636 So.2d 67, 68 (Fla. 2d DCA 1994); Stidham v. State, 567 So.2d 14, 15 (Fla. 2d DCA 1990); Joggers v. State, 536 So.2d 321, 330 (Fla. 2d DCA 1988). Because there was sufficient evidence to support a conviction pursuant to section 784.03(l)(a), Florida Statutes (2001), for the necessary lesser included offense of battery, we direct the trial court on remand to enter a conviction for that offense and to resentence Thornton accordingly.

We note that although there was insufficient evidence to support a capital sexual battery conviction, there was ample evidence to support a conviction for lewd and lascivious molestation. See § 800.04(5), Fla. Stat. (2000). The victim testified that her father inappropriately touched her, and Thornton admitted the touching occurred. Moreover, Thornton acknowledged that he was sexually stimulated by the contact. Had the State appropriately charged Thornton with lewd and lascivious molestation, we would today be affirming his conviction of that offense.

Reversed and remanded with directions.

WHATLEY and NORTHCUTT, JJ„ Concur.

      . Section 924.34, Florida Statutes (2000), allows this court to order the trial court to enter a directed verdict for a lesser included offense if the evidence presented at trial does not support the crime the defendant was convicted of yet does establish guilt of the lesser offense. See also Bledsoe v. State, 764 So.2d 927, 928 (Fla. 2d DCA 2000).

      . We cannot order the trial court to direct a verdict for lewd and lascivious molestation because it is not a permissive lesser included offense of capital sexual battery. See Welsh v. State, 850 So.2d 467, 468 (Fla.2003).


author: WALLACE, Judge.

text:
    Jose ACOSTA, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4947.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   WALLACE, Judge.

Jose Acosta, Jr., appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand with instructions.

On January 24, 2001, a jury found Acosta guilty of false imprisonment, armed burglary of a dwelling, two counts of aggravated assault with a firearm, and shooting at or within a dwelling. He is currently serving a twenty-year minimum mandatory sentence.

Before he went to trial, Acosta wrote a letter to the court to complain that his retained counsel was not keeping him informed about the case. A “Nelson inquiry” hearing followed, and counsel ultimately stayed on the case. See Nelson v. State, 274 So .2d 256, 258-59 (Fla. 4th DCA 1973). After trial, Acosta timely filed a motion for new trial in which he raised one claim of harmful error caused by the State and one claim of ineffective assistance of counsel. He was represented by counsel at the hearing on the motion. The motion for new trial was denied, and this court affirmed the trial court’s denial.

Acosta then timely filed this motion for postconviction relief, in which he raised three grounds of ineffective assistance of counsel. The trial court denied the motion “in compliance with Rule 3.850(d)” based on “the legal theory of Res Judicata, insofar as the issues raised by the Defendant in his Pro Se Motion for Postconviction Relief have already been addressed by the Second District Court of Appeal.” We differ with the ruling of the trial court because “unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a post-conviction motion.” Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002). Accordingly, we conclude that the trial court improperly denied Acosta’s postconviction motion on the ground that the ineffective assistance of counsel issue was raised in his motion for new trial. On remand, the trial court may again summarily deny relief if it can attach portions of the record that conclusively refute Acosta’s claims of ineffective assistance of counsel, or in the alternative, it may hold an evidentiary hearing to resolve issues of fact raised in Acosta’s motion. See Reese v. State, 869 So.2d 1225, 1227 (Fla. 2d DCA 2004).

Reversed and remanded.

ALTENBERND, C.J., and DAVIS, J., Concur.


author: FULMER, Judge.

text:
    Scottie WHITE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-756.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
   FULMER, Judge.

Scottie White appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In his motion, White stated five claims of ineffective assistance of counsel. We affirm the denial of three of the claims without discussion. We address the remaining two claims that his counsel was ineffective for failing to call two witnesses to testify at trial.

In 2002, White was convicted of second-degree murder with a firearm. At trial, an eyewitness named Latrice Marbra testified that she witnessed the shooting and White’s involvement in the shooting. In his motion, White claimed that counsel was ineffective for failing to call Tier Giles to testify at trial that Marbra was not at the nightclub at the time of the shooting. The trial court did not specifically address this claim in its order. The record indicates that at her deposition, Giles stated that she saw Marbra drive up to the scene of the shooting after the shooting had stopped.

In addition, White argued that his counsel was ineffective for failing to call White’s girlfriend, Tara Blauvelt, as an alibi witness to testify at trial that White was with her and her family at the time of the shooting. The trial court denied this claim, concluding that counsel’s failure to call Blauvelt as a witness was a strategic decision. The trial court erred because such a determination is generally not appropriate without an evidentiary hearing. See Green v. State, 827 So.2d 1060, 1061 (Fla. 2d DCA 2002). In addition, the record indicates that Blauvelt testified at her deposition that White was home with her at the time of the shooting.

Based on the allegations and the record before us, we conclude that White’s claims were facially sufficient when filed and that White should have been granted an evi-dentiary hearing. See Odom v. State, 770 So.2d 195 (Fla. 2d DCA 2000), disapproved in part, Nelson v. State, 875 So.2d 579 (Fla.2004). However, subsequent to the trial court’s denial of White’s motion, the Florida Supreme Court held that “a facially sufficient postconviction motion alleging the ineffectiveness of counsel for failing to call certain witnesses must include an assertion that those witnesses would in fact have been available to testify at trial.” Nelson, 875 So.2d at 584. The supreme court also indicated that a defendant’s motion should not be denied simply because of this insufficiency; instead the trial court should allow a defendant leave to amend the motion:

We do not, however, want postconviction relief to be denied simply because of a pleading defect if that pleading defect could be remedied by a good faith amendment to the motion. Therefore, when a defendant fails to allege that a witness would have been available, the defendant should be granted leave to amend the motion within a specified time period. If no amendment is filed within the time allowed, then the denial can be with prejudice.

See id.

Therefore, in accordance with Nelson, we reverse the trial court’s denial of White’s claims alleging ineffective assistance of counsel for failure to call witnesses Tier Giles and Tara Blauvelt. We remand with directions that White be granted a specified period of time within which to amend his motion, if he is able to do so, to allege that these witnesses would have been available to testify at trial. If White files a sufficient amendment, the trial court must conduct an evidentiary hearing. If White does not file an amendment within the time allowed, the trial court may deny these claims with prejudice.

Affirmed in part, reversed in part, and remanded with directions.

STRINGER, and SILBERMAN, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Frederico HERNANDEZ, Petitioner, v. STATE of Florida, Respondent.
    No. 2D04-1169.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    Frederico Hernandez, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Respondent.
   NORTHCUTT, Judge.

Frederico Hernandez, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to one of the grounds raised therein, and we deny, without comment, the remaining ground.

Hernandez was charged by information with four counts of aggravated battery with a deadly weapon, a firearm. The State nolle prossed one of the counts, and Hernandez was tried by jury and convicted, as charged, on the three remaining counts. Hernandez’s defense at trial was that he was justified in using deadly force to defend himself and his brother Cruz Hernandez, and he presented evidence to support this theory of defense. He alleges in his petition that appellate counsel rendered ineffective assistance of counsel when he failed to argue that the trial court’s instruction on the justifiable use of force constituted reversible error. The trial court instructed the jury as follows:

However, the use of force likely to cause death or great bodily harm is not justifiable if you find:
1. Frederico or Cruz Hernandez were attempting to commit, committing, or escaping after the commission of aggravated battery with a deadly weapon.

(Emphasis added.) Thus, the jury was instructed that the justifiable use of deadly force would not apply if Hernandez was committing the offense for which he was charged. Trial counsel strenuously objected to this instruction, arguing that the instruction was confusing and illogical and advised the jury that the very actions Hernandez was attempting to justify could not be considered self-defense.

In Baker v. State, 877 So.2d 856 (Fla. 2d DCA 2004), this court held that appellate counsel was ineffective in failing to argue that such an instruction, as given to the jury in the present case, constituted fundamental error. In Baker, we cited to Giles v. State, 831 So.2d 1263 (Fla. 4th DCA 2002). The court in Giles held that the giving of a similar instruction was reversible error where the defendant was claiming self-defense. The court stated:

The instruction improperly told the jury that the very act Giles sought to justify itself precluded a finding of justification. Essentially, the jury was instructed that [section] 776.041(1) would apply to preclude a self-defense claim, when it is claimed that the acts with which the defendant is charged are themselves committed in appropriate self-defense.

Id. at 1266. The opinion in Giles was issued prior to the filing of the initial brief in the present case and was available to appellate counsel. We conclude that appellate counsel’s failure to argue that the justifiable use of deadly force instruction was reversible error constituted ineffective assistance of appellate counsel.

Accordingly, we grant the petition alleging ineffective assistance of appellate counsel as to this ground only. In the present case, the State attached the entire trial record to its response to the petition. Our review of the record leads us to conclude that the error was not harmless and, had appellate counsel raised this issue on direct appeal, we would have been compelled to reverse Hernandez’s convictions. Because a new appeal would be redundant in this instance, we reverse Hernandez’s convictions, vacate his sentences, and direct that he be retried. See Johnson v. State, 498 So.2d 938, 939 (Fla.1986).

Petition denied in part, and granted in part.

ALTENBERND, C.J., and CASANUEVA, JJ„ Concur.

      . This court in Zuniga v. State, 869 So.2d 1239 (Fla. 2d DCA 2004), and the Fourth District in Rich v. State, 858 So.2d 1210 (Fla. 4th DCA 2003), have since held that the giving of a jury instruction, such as the one given in the present case, could constitute fundamental error.


text:
    Gary WISHNATZKI, Appellant, v. COFFMAN CONSTRUCTION, INC., a Florida corporation; G. Fernandez Designer, Inc., a dissolved Florida corporation; and Gabriel Fernandez, an individual, Appellees.
    No. 2D03-4127.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.

      William F. Merlin, Jr., and Mary E. Kestenbaum, Tampa, for Appellant.
    Charles W. Hall and Mark D. Tinker of Fowler White Boggs Banker P.A., St. Pe-tersburg, for Appellee Coffman Construction, Inc.
    No appearance for remaining Appellees.
   WALLACE, Judge.

Gary Wishnatzki (the Homeowner) appeals the dismissal with prejudice of his complaint against Coffman Construction, Inc. (the Builder), which sought damages resulting from alleged defects in the construction of his house. The circuit court ruled that the statute of limitations barred the Homeowner’s claims., Because the facts pleaded in the complaint do not conclusively establish that the claims are barred as a matter of law, we reverse.

Facts and Proceedings

On January 10, 2003, the Homeowner filed a four-count complaint against the Builder, alleging fraudulent misrepresentation, breach of contract, negligence, and a violation of Florida’s Unfair and Deceptive Trade Practices Act. The Homeowner alleged that in 1987, he and his family moved into the home that he had engaged the Builder to construct in the Avila neighborhood of Tampa. “From 1988 until 1999,” the Homeowner “experienced numerous problems with the roof of the Premises.” On those occasions, the Builder “performed corrective work that was limited to the roof’ but “did not inform the [Homeowner] of any other problems inherent with the design or construction of the Premises.” In July 2001, the Homeowner engaged another company to perform corrective work on the roof.

At about this same time, the Homeowner “began noticing rotting of several of the Premises’ wooden window frames.” To replace the rotting wood around the windows, the Homeowner engaged a third company, which discovered that “much of the internal structure of the Premises had been damaged by water intrusion that had penetrated the walls of the Premises from several different entry points.” The water intrusion was the result of poor construction methods, which included

applying stucco in an unorthodox manner, installing gutters before putting on the stucco, lack of proper sealant between the stucco and the plywood, extremely poor use of the flashing around the dormers of the Premises, lack of sufficient sealant or bonding around the critical wall junctures, installation of wood columns that improperly extended below the grade of the structure, and general defective workmanship and/or design which fails to comply with accepted design and construction standards aimed at preventing an ongoing source of water intrusion into the interior structures of the Premises.

In addition, further examination of the home “revealed that some of the material used in the construction of the Premises did not conform with the materials that were specifically provided for in the plan specifications,” such as “the use of galvanized steel material for the gutters instead of the specified Copper material.” Ultimately, the repeated water intrusions into the home’s structure led to the presence of “high and dangerous levels” of toxic mold.

The Builder moved to dismiss the complaint on the ground that the four-year limitations period provided by section 95.11(3)(c), Florida Statutes (1987), commenced to run in 1988 when the Homeowner experienced “numerous problems with the roof’ and thus knew or should have known of the construction defects on which his complaint was founded. The circuit court agreed that the Homeowner discovered “the latent defect” in 1988, and it dismissed the complaint with prejudice on the authority of Kelley v. School Board of Seminole County, 435 So.2d 804 (Fla.1983).

Law and Analysis

In pertinent part, section 95.11(3)(c) provides a four-year statute of limitations applicable to an action founded on the construction of an improvement to real property. “[W]hen the action involves a latent defect, the time runs from the time the defect is discovered or should have been discovered with the exercise of due diligence.”

Dismissing the complaint with prejudice, the circuit court relied on Kelley, 435 So.2d 804, in which the roofs of three new elementary school buildings began to leak shortly after completion of construction, but the school board did not file suit until at least seven years after the leaks began. Our supreme court held that when the roofs started leaking, “the school board had knowledge of the defective roofs sufficient to put it on notice that it had, or might have had, a cause of action.” Id. at 806. Therefore, summary judgment was properly entered against the school board because “[w]hen a newly finished roof leaks it is not only apparent, but obvious, that someone is at fault.” Id. (approving Havatampa Corp. v. McElvy, Jennewein, Stefany & Howard, Architects/Planners, Inc., 417 So.2d 703 (Fla. 2d DCA 1982)). Kelley stands for the rule that “where there is an obvious manifestation of a defect, notice [as a matter of law] will be inferred at the time of manifestation regardless of whether the plaintiff has knowledge of the exact nature of the defect.” Performing Arts Ctr. Auth. v. Clark Constr. Group, Inc., 789 So.2d 392, 394 (Fla. 4th DCA 2001) (distinguishing Kelley, Havatampa, and Conquistador Condo. VIII Ass’n v. Conquistador Corp., 500 So.2d 346 (Fla. 4th DCA 1987)).

In this case, then,-what may be inferred as a matter of law from the Homeowner’s discovery of “problems with the roof’ regarding his notice of actionable defects? Certainly, a leaky roof implies notice of the actionable defect that caused the roof to leak because no nonactionable defect could be the culprit. Cf. Clark Constr., 789 So.2d at 394 (holding that “where the manifestation is not obvious but could be due to causes other than an actionable defect, notice as a matter of law may not be inferred”; citing Bd. of Trustees of Santa Fe Cmty. College v. Caudill Rowlett Scott, Inc., 461 So.2d 239 (Fla. 1st DCA 1985)). But what of other manifestations of conceivably unrelated problems with conceivably unrelated causes? The complaint alleged that the discovery of rotting wood around the windows led to an awareness that water had intruded through the exterior walls at several entry points. Among the causes of these other water intrusions were “applying stucco in an unorthodox manner” and “installation of wood columns that improperly extended below the grade of the structure.” In addition, the complaint alleges that the Builder improperly substituted construction materials. The complaint does not address the issue of whether all of the construction problems' resulted from one defect or from two or more unrelated defects that the Homeowner may have noticed at different times.

Ordinarily, a statute of limitations may be asserted only as an affirmative defense in a responsive pleading. Levine, Zweibach, Davis, P.A. v. Levine, 734 So.2d 1191, 1195 (Fla. 2d DCA 1999). A motion to dismiss a complaint based on the expiration of the statute of limitations should be granted only in extraordinary circumstances in which the facts pleaded in the complaint conclusively establish that the statute of limitations bars the action as a matter of law. Id.; Alexander v. Suncoast Builders, Inc., 837 So.2d 1056, 1057 (Fla. 3d DCA 2002). Our standard of review is de novo, taking as true the allegations of the complaint and viewing them in a light most favorable to the plaintiff. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734-35 (Fla.2002). If the alleged circumstances suggest the possibility that the plaintiff “could plead matters in avoidance of the limitations defense! ],” dismissal is inappropriate. Levine, 734 So.2d at 1195.

Considering the complaint on its face, we cannot say as a matter of law that the limitations period commenced to run in 1988 when the Homeowner first experienced “problems with the roof.” Further facts may or may not establish that other problems around the windows or in the walls ' constituted unrelated defects of which the Homeowner did not have notice until well after 1988.

Because the facts pleaded in the complaint do not conclusively establish that the claims are barred as a matter of law, dismissal was improper. Instead, the Builder should be required to assert the limitations defense in a responsive pleading. The Homeowner then would be afforded the opportunity to plead facts in avoidance. “With the issues thus framed by the pleadings, the parties could then develop evidence that would permit disposition of the limitations defense[ ] on motion for summary judgment or at trial.” Levine, 734 So.2d at 1195.

Reversed.

FULMER and WHATLEY, JJ„ Concur.

      . The Homeowner also asserted two counts against the company that designed the home and the design company's owner individually. These counts are not at issue in this appeal and, insofar as the record reveals, remain pending below.

      . Relevant portions of section 95.1 l(3)(c) have remained substantially unchanged at all times relevant to this appeal.

      . For reasons unnecessary to detail here, the complaint on its face does not conclusively establish the expiration of the statute of repose contained within section 95.1 l(3)(c). Therefore the order of dismissal may not be affirmed on that alternative ground.


author: SALCINES, Judge.

text:
    Tirrance COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4770.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.
    Rehearing Denied Sept. 10, 2004.
   SALCINES, Judge.

Tirrance Cooper challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm without comment as to four of his claims. We reverse as to the remaining claim.

On April 24, 1996, the day after he was released from prison, Cooper committed an armed robbery at a supermarket. He held the employees at gunpoint and forced them into a freezer. A jury subsequently found him guilty of armed robbery with a firearm, eight counts of armed kidnaping, and trespass within a structure with a human inside. Cooper was sentenced as a habitual violent felony offender to concurrent life sentences on the felony charges and to time served on the misdemeanor trespass charge.

Before trial, Cooper pleaded to one count of felon in possession of a firearm, a second-degree felony. The plea form eor-rectly indicated that the statutory maximum for such an offense is fifteen years. Cooper was subsequently sentenced to life in prison as a habitual violent felony, offender. He then filed a motion to correct illegal sentence, which was denied by the trial court. On appeal, this court concluded that a habitual life sentence for a second-degree felony conviction was illegal. See Cooper v. State, 800 So.2d 243 (Fla. 2d DCA 2001). Section 775.084, Florida Statutes, provides that the maximum habitual violent felony offender sentence that may be imposed for a second-degree felony is thirty years. On resentencing, Cooper was sentenced to thirty years.

Cooper now claims that the court’s enhancement and habitual violent felony offender sentences on the convictions for armed kidnaping were illegal. Section 787.01(2), Florida Statutes (1995), states that kidnaping is a first-degree felony punishable by a term of years not exceeding life. Because Cooper was armed, the offense would be enhanced to a life felony under section 775.087(l)(a), Florida Statutes (1995). However, at the time of Cooper’s sentencing, an HVFO sentence could not be imposed for a life felony. The imposition of a habitual violent felony offender sentence for a life felony can be challenged under the authority of State v. Thompson, 750 So.2d 643 (Fla.1999), if the life felony was committed between October 1, 1995, and May 24, 1997. Cooper committed these crimes on April 24, 1996. Therefore, his sentence for the armed kid-naping charges must be reversed.

Affirmed in part, reversed in part, and remanded.

STRINGER and SILBERMAN, JJ., Concur.


text:
    Mark A. ADAMS, and Mark A. Adams, P.A., Petitioners, v. Jeffrey S. SMITH; Sharon P. Smith; Corporate Sports Marketing Group, Inc.; Christopher C. King; Dwayne Martins; and State of Florida, Respondents.
    No. 2D04-636.
    District Court of Appeal of Florida, Second District.
    Aug. 13, 2004.

      Mark A. Adams of Mark A. Adams, P.A., Valrico, for Petitioners.
    Timothy W. Weber of Battaglia, Ross, Dicus & Wein, P.A., Tampa, for Respondents Corporate Sports Marketing Group, Inc., Christopher C. King, and Dwayne Martins.
    Ricardo A. Roig of Ricardo A. Roig, P.A., Tampa, for Respondents Jeffrey S. Smith and Sharon P. Smith.
    Bernie ■ McCabe, State Attorney and Rene Marie Bauer, Assistant State Attorney, Clearwater, for State of Florida.
   ORDER ON MOTION FOR DISQUALIFICATION

NORTHCUTT, Judge.

This court recently denied a petition for writ of prohibition filed by Mark A. Adams and Mark A. Adams, P.A. They have filed a motion variously seeking rehearing, a written opinion,' clarification, certification, and rehearing en banc. However, the petitioners have also filed a motion alleging that the judges of this court are disqualified from considering the foregoing motion. The disqualification motion names five judges specifically, including me, and “any other judges of this Court who feel that they are biased against the Petitioners or biased in favor of the Respondents!;.]”

First off, it is important to note that petitioners are mistaken in their reliance on section 38.10, Florida Statutes (2003), as the legal basis for their disqualification motion. As made clear by the Florida Supreme Court in In re Estate of Carlton, 378 So.2d 1212, 1216-17 (Fla.1980), this statute does not apply to the disqualification of appellate judges. Rather, Carlton held that an appellate judge must determine for himself or herself both the legal sufficiency of a motion to disqualify the judge and the propriety of withdrawing in any particular circumstance. Accordingly, insofar as the motion seeks my disqualification, it has been submitted to me for determination. I deny the motion and decline to recuse myself.

As it relates to me, the disqualification motion recites that I participated in the consideration and disposition of two petitions for writ of prohibition filed by petitioners: case number 2D03-4844, filed October 27, 2003, and denied by this court on November 24, 2003; and this case, number 2D04-636, which was originally filed in the Florida Supreme Court, then transferred to this court on February 17, 2004, and denied by this court on March 1, 2004.

The disqualification motion also points out that the petition in case number 2D03-4844 was initially considered by a two-judge panel consisting of Judges Kelly and Wallace on October 29, 2003. My involvement began .thereafter when, as the disqualification motion characterizes it, the panel assigned to the petition “was rearranged” to consist of Judge Salcines, Judge Covington, and me. As mentioned, we denied the petition on November 24, 2003. Thereafter, in February 2004,1 was involved in the disposition of two motions regarding a stay that had been ordered when Judges Kelly and Wallace initially considered the petition in October. The disqualification motion also maintains that the decisions in which I participated were legally incorrect.

Taking a cue from Justice Overton’s treatment of the motion to disqualify him in Carlton, 378 So.2d at 1218, I note that petitioners’ motion to disqualify me likely is untimely. The motion reflects that petitioners became aware of the facts on which they rely no later than February 24, 2004. That was one week after the supreme court had transferred the petition in case number 2D04-636 to this court for its disposition, along with an instruction to expedite our consideration of the matter. Yet petitioners did not file their disqualification motion until March 16, well after this court’s March 1 ruling on the prohibition petition. See Lawson v. Longo, 547 So.2d 1279, 1281 (Fla. 3d DCA 1989) (collecting cases applying the proposition that the law does not favor the" disqualification of a judge after the judge has issued a decision in the cause, unless the delay is excused by a showing of good cause). Even so, given the relatively short time span between petitioners’ discovery of the facts and this court’s ruling, I would hesitate to deny their motion on that basis alone.

Beyond that, however, petitioners’ allegations regarding me are legally insufficient to justify my disqualification. The standard is whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial hearing. Randolph v. State, 853 So.2d 1051, 1064 (Fla.2003); MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332, 1335 (Fla.1990); Livingston v. State, 441 So.2d 1083, 1087 (Fla.1983). Here, petitioners'allege that (1) I participated in the dispositions mentioned above, and (2) I incorrectly ruled against them. The latter is quintessentially insufficient as a ground for disqualifying a judge. Correll v. State, 698 So.2d 522 (Fla.1997); Barwick v. State, 660 So.2d 685, 692 (Fla.1995).

As to the former allegation, I have found no case involving a similar complaint, perhaps because it is self-evident that no reasonably prudent person would fear that a judge lacks impartiality simply because the judge has been assigned to' a particular case. See Randolph, 853 So.2d at 1064 (reiterating that a defendant’s subjective fears are'not reasonably sufficient to justify a well-founded fear of prejudice). This is especially true where, as here, there is no allegation that the judge was in any way responsible for making the assignment or, for that matter, had any motive for doing so. To be sure, the tone of petitioners’ motion makes clear their suspicion that there was some irregularity in the assignment of the panels in the two cases. But that suspicion appears to be based on the petitioners’ unfounded assumption that in this court a two-judge motions panel that initially screens a writ petition will automatically be assigned to the panel that considers the petition on the merits. As the supreme court has observed, “We cannot operate a judicial system, or indeed a society, on the basis of the factually unsubstantiated perceptions of the cynical and distrustful.” MacKenzie, 565 So.2d at 1838 (quoting Breakstone v. MacKenzie, 561 So.2d 1164, 1178 (Fla. 3d DCA 1989) (Schwartz, J., dissenting)).

Finally, in Carlton, 378 So.2d at 1220, Justice Overton noted that even though a suggestion for disqualification is legally insufficient, a judge still may voluntarily recuse if he or she believes it would be in the best interests for the administration of justice. But he cautioned that voluntary recusal has limited efficacy when disqualification has been requested by the losing party after the judge’s participation in the court’s decision. In that circumstance, he wrote, voluntary recusal “would adversely and unjustly affect the successful party in the cause. Voluntary recusation after the rendition of judgment would be justifiable only when the judge or justice honestly believes he or she can no longer fairly and impartially rule on the cause.” Id. Justice Overton went on to note his belief that he could continue to properly consider the issues in that case fairly and impartially. Therefore, he wrote, he had a duty not to recuse himself. For the same reasons, the same is true of me in the instant case.