author: SAWAYA, C.J.

text:
    Bruce HUNSICKER, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D03-373, 5D03-527.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    Rehearing Denied Sept. 22, 2004.

      James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy D. Wilson, Assistant Attorney General, Daytona Beach, for Appellee.
   SAWAYA, C.J.

Bruce Hunsicker was found guilty of three counts of sexual battery, two counts of lewd or lascivious molestation, one count of lewd or lascivious exhibition, one count of lewd or lascivious conduct, and one count of burglary of a dwelling with an assault or battery. He appeals his judgment and sentences raising several issues. Although we conclude that we must affirm as to each issue, we write to discuss two: 1) whether the convictions for four counts of lewd or lascivious acts violate double jeopardy principles; and 2) whether the sentences imposed on these four counts as both a habitual offender (HO) and prison releasee reoffender (PRR) are improper.

A detailed discussion of the facts is not necessary to resolve the two issues we address. However, a discussion of the sentences Hunsicker received after the jury found him guilty is a necessary prelude to our legal analysis, and so we will begin there and then proceed to discuss each issue in the order presented.

The Sentences

For three acts of sexual battery, burglary of a dwelling and four lewd or lascivious acts committed on his ten-year-old victim during the late evening hours of February 2, 2001, Hunsicker, who the trial court found qualified as a HO and PRR, was sentenced as follows:

The sentences imposed for the sexual battery charges alleged in counts one, two and three in violation of section 794.011(2), Florida Statutes (2001), were life imprisonment concurrently for each count.
The sentence imposed for the burglary charge alleged in count four in violation of section 810.02(2)(a), Florida Statutes (2001), was life imprisonment consecutive to counts one, two and three with HO and PRR classification.
The sentence imposed for lewd or lascivious molestation alleged in count five in violation of section 800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count four with HO and PRR classification.
The sentence imposed for lewd or lascivious molestation alleged in count six in violation of section 800.04(5), Florida Statutes (2001), was life imprisonment consecutive to count five with HO and PRR classification.
The sentence imposed for lewd or lascivious exhibition alleged in count seven in violation of section 800.04(7), Florida Statutes (2001), was thirty years imprisonment consecutive to count six with HO and PRR classification.
The sentence imposed for lewd or lascivious conduct alleged in count eight in violation of section 800.04(6), Florida Statutes (2001), was thirty years imprisonment consecutive to count seven with HO and PRR classification.

As to the counts of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, Hunsicker contends that his convictions violate double jeopardy principles because each arose out of a single criminal episode. Therefore, he argues that he may be convicted of only one lewd or lascivious offense. Hunsicker also contends that because he was sentenced as both a HO and PRR for these offenses, his sentences are illegal.

At no time during the sentencing hearing did Hunsicker object that his sentences violated double jeopardy principles or that his dual sentence as a HO and PRR were improper. Moreoever, Hunsicker did not avail himself of the procedure in rule 3.800(b), Florida Rules of Criminal Procedure, to raise these alleged errors before the trial court. Hence, the State argues that Hunsicker did not properly preserve either issue for review. We will first address the double jeopardy issue.

Double Jeopardy

We reject the State’s preservation of error argument. This court and others have consistently held that violation of double jeopardy principles is fundamental error which, absent a knowing and voluntary waiver, may be raised for the first time on appeal. See State v. Johnson, 483 So.2d 420, 422 (Fla.1986); Bar-field v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Tannihill v. State, 848 So.2d 442 (Fla. 4th DCA 2003); Haynes v. State, 828 So.2d 457, 458 (Fla. 4th DCA 2002); Rios v. State, 791 So.2d 1208 (Fla. 5th DCA 2001); Ford v. State, 749 So.2d 570, 571 (Fla. 5th DCA 2000); Rivera v. State, 745 So.2d 343 (Fla. 4th DCA 1999); Grene v. State, 702 So.2d 510 (Fla. 3d DCA 1996); Austin v. State, 699 So.2d 314 (Fla. 1st DCA 1997); Waldon v. State, 670 So.2d 1155 (Fla. 4th DCA 1996); see also Johnson v. State, 747 So.2d 1027 (Fla. 2d DCA 1999) (holding that under the facts of the case, the two convictions violated the prohibition against double jeopardy and constituted fundamental error that may be raised for the first time on appeal). Accordingly, it is appropriate for us to resolve the double jeopardy issue on the merits despite the fact that Hunsicker neither objected during sentencing nor raised the issues via a rule 3.800(b) motion in the trial court.

Three basic protections emanate from the Double Jeopardy Clauses of the Federal and Florida Constitutions: 1) protection against- a subsequent prosecution for the same offense after acquittal; 2) protection against a subsequent prosecution for the same offense after conviction; and 3) protection against multiple punishments for the same offense. North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 23 L.Ed.2d 656 (1969) (footnotes omitted); State v. Wilson, 680 So.2d 411, 413 (Fla.1996). It is the third protection that is implicated here and it may prohibit convictions on multiple counts brought in a single prosecution when the convictions arise from conduct committed in a single criminal episode. Cabanela v. State, 871 So.2d 279, 281 (Fla. 3d DCA 2004) (“Ca-banela therefore argues that his multiple convictions and sentences for lewd assault upon a child pursuant to section 800.04, Florida Statutes (1995), were violative of double jeopardy where they were committed in a single criminal episode. We agree.”); Swilley v. State, 845 So.2d 930 (Fla. 5th DCA 2003); King v. State, 834 So.2d 311 (Fla. 5th DCA 2003).

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)); see also Cruller v. State, 808 So.2d 201, 203 (Fla.2002). If the Legislature did not clearly express its intention to authorize separate punishments, the courts must resort to the test of statutory construction established in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), now codified in section 775.021(4), Florida Statutes (2001). Cruller; Gordon; M.P. The court in Cruller emphasized that if there is a clear expression of legislative intent to require two separate punishments, the analysis ends and we do not resort to the Blockburger test. In accordance with Cruller, we begin our search for clear legislative intent by examining “the language, structure, and legislative history” of section 800.04. Cruller, 808 So.2d at 203. Most cases involving double jeopardy arguments directed to multiple convictions arising from lewd and lascivious acts allegedly committed in a single criminal episode involved charges brought under the version of section 800.04 prior to its amendment in 1999. See Coffield v. State, 872 So.2d 430 (Fla. 4th DCA 2004); Pires v. State, 866 So.2d 1276 (Fla. 4th DCA 2004); Gisi v. State, 848 So.2d 1278 (Fla. 2d DCA 2003); Morman v. State, 811 So.2d 714 (Fla. 2d DCA 2002); Baddy v. State, 789 So.2d 1093 (Fla. 4th DCA 2001). These cases generally hold that double jeopardy was violated if the two acts that formed the basis of the convictions occurred in one location without a temporal break between them so that the defendant did not have sufficient time to pause, reflect, and form a new criminal intent between the occurrences. This is the proper legal analysis to determine whether the acts occurred in a single or in separate criminal episodes. Citing the decision in Morman, the court in Gisi explained the reason the courts employed this analysis:

The Morman court cited State v. Hightower, 509 So.2d 1078 (Fla.1987), for the proposition that “[a]s now worded, section 800.04 contemplates that if sexual activity takes place with a person under sixteen years of age which does not constitute the crime of sexual battery, the conduct is deemed to be lewd and lascivious.” Morman, 811 So.2d at 717 (quoting Hightower, 509 So.2d at 1079). The Morman court then concluded that “the statute’s focus is on conduct involving sexual activity and not upon the individual acts that comprise lewd and lascivious activity in the same spatial and temporal zone.” Id.

Gis% 848 So.2d at 1281. Hence, under this version of the statute, because the focus was not on the individual acts that comprised the crime of lewd and lascivious assault, there was no legislative intent to impose separate punishments for each act that was committed in one criminal episode. Therefore, the courts employed the analysis that a separate crime was committed in a separate criminal episode provided there was a temporal break between each act that allowed the defendant to form a new criminal intent.

Section 800.04 was substantially amended in 1999 to include a definitions section and separate numbered subsections dealing with lewd or lascivious battery, section 800.04(4); lewd or lascivious molestation, section 800.04(5); lewd or lascivious conduct, section 800.04(6); and lewd or lascivious exhibition, section 800.04(7). The amendments became effective on October 1, 1999. The Legislature expressed the purpose of the amendments in the preamble to chapter 99-201, Laws of Florida, when it stated that in enacting the amendments it was

amending s. 800.04, F.S.; creating the offenses of “lewd or lascivious battery,” “lewd or lascivious molestation,” “lewd or lascivious conduct,” and “lewd or lascivious exhibition”; providing definitions; providing penalties; precluding consent from being raised as a defense if the victim is under a specified age; precluding ignorance or belief of age from being raised as a defense; providing an exception for maternal breastfeeding; deleting provisions that define and provide penalties for “lewd, lascivious, or indecent assault or act upon or in the presence of a child”;_

Ch. 99-201, Laws of Fla. (emphasis added). The language and structure of the amended statute does focus on individual acts and creates separate criminal offenses in each subsection that designates a specific degree of the crime and the punishment to be imposed for each. We conclude that the legislative intent is clear that separate punishments be imposed for each criminal offense created by the statute. Therefore, with respect to Hunsicker’s convictions for the separate crimes of lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition, there is no double jeopardy violation.

However, Hunsicker was charged with two counts of lewd or lascivious molestation under section 800.04(5)(a), which provides:

A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age, or forces or entices a person under 16 years of age to so touch the perpetrator, commits lewd or lascivious molestation.

§ 800.04(5)(a), Fla. Stat. (2000). Specifically, Hunsicker was charged in Count V with enticing the victim to touch his penis and in Count VI he was charged with putting his mouth on the victim’s breast. We do not discern any legislative intent to punish separately each act specified in section 800.04(5)(a) that is committed in the course of one criminal episode, and our analysis under the Blockburger test found in section 775.021(4) does not lead us to conclude that each act committed in one criminal episode is a separate offense. Therefore, we revert to the analysis employed by the cases to determine whether more than one criminal episode occurred and conclude that there was a sufficient temporal break between the two acts that form the basis of Counts V and VI to have allowed Hunsicker to pause, reflect and form a new criminal intent for each offense. Hence, two separate crimes occurred in separate episodes and Hunsicker should be appropriately punished for each. We find this double jeopardy analysis for acts charged under section 800.04(5) that are alleged to have occurred in a single criminal episode comports with our holding in King.

Accordingly, we conclude that Hunsicker’s convictions do not violate the Double Jeopardy Clauses of the Florida and federal constitutions. Next we will explain why we may not resolve the issues Hunsicker raises regarding his dual sentences as a habitual offender and prison releasee reof-fender.

Dual Sentences As A Habitual Offender And Prison Releasee Reoffender

Hunsicker argues that his sentences are illegal because he was sentenced as a habitual offender and prisoner releasee reoffender for each count. It is permissible to sentence one defendant as both a HO and as a PRR on separate counts. Williams v. State, 870 So.2d 166 (Fla. 2d DCA 2004); Tolbert v. State, 827 So.2d 278 (Fla. 2d DCA 2002); Bright v. State, 760 So.2d 287 (Fla. 5th DCA 2000). It is also permissible to sentence a defendant as a HO and a PRR on the same count as long as the sentences are concurrent and the HO sentence exceeds the PRR sentence. Grant v. State, 770 So.2d 655 (Fla.2000); State v. Manning, 889 So.2d 849, 851 (Fla. 5th DCA 2003) (holding that a defendant can receive a PRR sentence and a HO sentence for a single offense, so long as the HO sentence results in a greater sentence); Kimbrough v. State, 776 So.2d 1055 (Fla. 5th DCA 2001); see also Williams v. State, 804 So.2d 572 (Fla. 5th DCA), cause dismissed, 829 So.2d 921 (Fla.2002). It is not permissible, however, to sentence a defendant to consecutive sentences when the sentences have already been enhanced under HO or PRR provisions and the crimes arose from one criminal episode. Hale v. State, 630 So.2d 521 (Fla.1993); Robinson v. State, 829 So.2d 984 (Fla. 1st DCA 2002); Smith v. State, 824 So.2d 263 (Fla. 2d DCA 2002); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000).

Here, Hunsicker contends that the sentences for Counts IV, V and VI were not increased by the HO classification and therefore, the trial court erred in sentencing Hunsicker as both a HO and PRR for those counts. He also contends that the trial court erred in sentencing him to consecutive sentences for the counts that were enhanced pursuant to his classification as a HO and PRR. While his claims appear to have merit, unfortunately for Hunsicker, as the State contends, he did not object during sentencing and did not avail himself of the procedure provided by rule 3.800(b), Florida Rules of Criminal Procedure, to properly correct the error. Therefore, we are unable to correct the error for him and we will now explain why.

A “sentencing error” has been broadly defined to include “harmful errors entered as a result of the sentencing process.” Brannon v. State, 850 So.2d 452, 458 (Fla.2003) (quoting Amendments to Fla. Rules of Criminal Procedure 3.111(e) & 3.800 & Fla. Rules of Appellate Procedure 9.020(h), 9.14-0, & 9.600, 761 So.2d 1015, 1019 (Fla.1999)). The error Hun-sicker alleges in the instant case is certainly a sentencing error. In Brannon, the court made it explicitly clear that “for defendants whose initial briefs were filed after the effective date of rule 3.800(b)(2), the failure to preserve a fundamental sentencing error by motion under rule 3.800(b) or by objection during the sentencing hearing forecloses them from raising the error on direct appeal.” 850 So.2d at 456; see also Lewis v. State, 827 So.2d 1052 (Fla. 5th DCA 2002); Gen v. State, 797 So.2d 605 (Fla. 1st DCA 2001); Durr. In order to assuage concerns raised by the dissent in Harvey v. State, 848 So.2d 1060 (Fla.2003), that the court might embark upon the road of exception, the Brannon court stressed that all sentencing errors must be properly preserved or brought to the attention of the trial court first via a rule 3.800(b) motion. Hence, the concept of fundamental sentencing error as a means to allow an unpreserved sentencing error to be raised for the first time on appeal and corrected by the appellate court has essentially been eliminated. Accordingly, because he failed to properly object at the time of sentencing or bring the error to the attention of the trial court via a rule 3.800(b) motion, Hunsicker will have to assert the sentencing error in a rule 3.800(a) or rule 3.850 motion. See Brannon. We therefore affirm Hunsicker’s sentences without prejudice to his right to seek appropriate postconviction relief. Lewis; Geri; Durr.

Conclusion

Hunsicker’s convictions for lewd or lascivious molestation, lewd or lascivious conduct and lewd or lascivious exhibition do not violate double jeopardy principles. Because double jeopardy violations are considered fundamental error that may be raised for the first time on appeal, we reject the State’s preservation of error argument. However, the State’s preservation of error argument does have merit regarding the issue raised by Hunsicker concerning his dual sentences as a HO and PRR. Therefore, we are unable to decide that issue on the merits, and Hunsicker will have to raise it in an appropriate motion for postconviction relief. Accordingly, we affirm Hunsicker’s convictions and sentences.

AFFIRMED.

PLEUS, J., concurs.

GRIFFIN, J., concurs in result only.

      . Hunsicker also appeals the denial of his petition for writ of habeas corpus wherein he requested a new trial based on an alleged Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), violation by the State. Specifically, Hunsicker claims that the State failed to disclose certain misconduct by a State's witness. The other issues Hunsicker raises are whether 1) it was error to deny his motion to suppress because his initial detention was unlawful and the trial court misapplied the inevitable discovery doctrine; and 2) the trial court abused its discretion by limiting cross-examination of a State's witness regarding pending charges against him for sexual abuse of a minor. We affirm as to each.
      Hunsicker also asserts that the trial court erred in adjudicating him guilty of armed burglary. According to the judgment in the instant case, Hunsicker was adjudicated guilty of violating section 810.02(2)(a), Florida Statutes (2000), which specifically refers to burglary as a first-degree felony punishable by life imprisonment if the offender "makes an assault or battery upon any person...." The jury found Hunsicker guilty of burglary with an associated assault or battery and that appears to be reflected correctly in the written judgment. We, therefore, also affirm as to this issue.

      . Although double jeopardy violations are fundamental errors, the courts have held that double jeopardy rights may be waived when a defendant enters into a negotiated plea agreement with the state for a specific sentence. See Novaton v. State, 634 So.2d 607 (Fla.1994); Barfield v. State, 871 So.2d 929 (Fla. 5th DCA 2004); Rosado v. State, 867 So.2d 440, 442 (Fla. 4th DCA 2004).

      . See also Cruller v. State, 808 So.2d 201, 203 (Fla.2002) (“The Double Jeopardy Clause protects criminal defendants from multiple convictions and punishments for the same offense.”); Hayes v. State, 803 So.2d 695 (Fla.2001); Taylor v. State, 29 Fla. L. Weekly D1040 (Fla. 2d DCA Apr.28, 2004); Dorsett v. State, 873 So.2d 424 (Fla. 3d DCA 2004).

      . The version of section 800.04 prior to the 1999 amendments was entitled "Lewd, lascivious, or indecent assault or act upon or in the presence of child” and provided in pertinent part:
      A person who:
      (1) Handles, fondles, or assaults any child under the age of 16 years in a lewd, lascivious, or indecent manner;
      (2) Commits actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, sadomasochistic abuse, actual lewd exhibition of the genitals, or any act or conduct which simulates that sexual battery is being or will be committed upon any child under the age of 16 years or forces or entices the child to commit any such act;
      (3) Commits an act defined as sexual battery under s. 794.01 l(l)(h) upon any child under the age of 16 years; or
      (4) Knowingly commits any lewd or lascivious act in the presence of any child under the age of 16 years, without committing the crime of sexual battery, commits a felony of the second degree....
      § 800.04, Fla. Stat. (1997).

      . In King, we applied this analysis to a defendant who, like Hunsicker, was charged with two counts of lewd or lascivious molestation for acts that occurred after the effective date of the amended version of section 800.04.

      . The only exception, if it can be called that, is fundamental error arising from the facial unconstitutionality of a sentencing statute. Brannon v. State, 850 So.2d 452 (Fla.2003). This sentencing error may be raised for the first time on appeal. Id.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jerry Mack DORROUGH, a/k/a Bobby Wayne, Appellant, v. Barbara Helen Weber WAYNE, Appellee.
    No. 5D03-3182.
    District Court of Appeal of Florida, Fifth District.
    Aug. 20, 2004.
    Rehearing Denied Sept. 20, 2004.
    Jerry Mack Dorrough, Tyler, TX, Pro Se.
    No Appearance for Appellee.
   PER CURIAM.

Jerry Mack Dorrough, a/k/a Bobby Wayne, appeals the trial court’s denial of his “Motion for Correction of Errors of Fact or Stay of Judgment Pending Litigation.” It appears the trial court treated Dorrough’s motion as being filed under Florida Family Law Rule of Procedure 12.540, and denied the motion. Because Dorrough’s motion was filed beyond the one-year limit set forth in rule 12.540, we affirm.

AFFIRMED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.


author: VAN NORTWICK, J.

text:
    NORTH HILL MANOR, INC., Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D02-1227.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Rehearing Denied Sept. 21, 2004.

      Michael J. Glazer and Ken Abele of Ausley & McMullen, Tallahassee, for Appellant.
    Gregory Philo, Agency for Health Care Administration, Tallahassee, for Appellee.
   VAN NORTWICK, J.

North Hill Manor, Inc. (North Hill) appeals a final order of the Florida Agency for Health Care Administration (AHCA), appellee, imposing a treble fine of $173,627.88 pursuant to section 400.424(3)(a), Florida Statutes (2000), for the failure of North Hill to provide a timely refund to a resident who vacated the facility. Because AHCA failed to consider the mitigating factors under section 400.419(3) in arriving at the trebled fine of $173,627.88, we reverse and remand for further proceedings consistent with this opinion.

Factual and Statutory Background

North Hill is a closely-held corporation that owns and operates North Hill Manor, an assisted living facility in Pensacola, Florida, with a licensed capacity of 32 beds. Beginning in March 1998, and contrary to the wishes of the management of North Hill, a resident, identified in the record only as Resident # 1 (Resident), began making advance payments of the future rent for her housing. She made an aggregate of $90,500 in advance rental payments: $12,800 in 1998, $61,200 in 1999 and $16,500 in 2000. On July 26, 2000, Resident moved from the North Hill facility without providing the thirty days notice of termination required by her housing contract with North Hill.

In August and September 2000, North Hill made several payments to Resident refunding in part her advanced rental payments: $16,500 on August 3, 2000; $12,800 on August 15, 2000; and $31,200 on September 21, 2000. North Hill paid Resident a final refund of $26,852.77 on May 15, 2001.

Section 400.419, Florida Statutes (2000) provides in pertinent part:

(1) Each violation of this part and adopted rules shall be classified according to the nature of the violation and the gravity of its probable effect on facility residents. The agency shall indicate the classification on the written notice of the violation as follows:
(c) Class “III” violations are those conditions or occurrences related to the operation and maintenance of a facility or to the personal care of residents which the agency determines indirectly or potentially threaten the physical or emotional health, safety, or security of facility residents, other than class I or class
II violations. A class III violation is subject to an administrative fine of not less than $100 and not exceeding $1,000 for each violation. A citation for a class
III violation shall specify the time within which the violation is required to be corrected. If a class III violation is corrected within the time specified, no fine may be imposed, ...
(3) In determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider the following factors:
(a) The gravity of the violation, including the probability that death or serious physical or emotional harm to a resident will result or has resulted, the severity of the action or potential harm, and the extent to which the provisions of the applicable laws or rules were violated.
(b) Actions taken by the owner or administrator to correct violations.
(c) Any previous violations.
(d) The financial benefit to the facility of committing or continuing the violation.
(e) The licensed capacity of the facility.

Section 400.424(3)(a), Florida Statutes (2000) provides in pertinent part:

The [assisted living facility] contract shall include a refund policy to be implemented at the time of a resident’s transfer, discharge, or death. The refund policy shall provide that the resident or responsible party is entitled to a prorated refund based on the daily rate for any unused portion of payment beyond the termination date after all charges, including the cost of damages to the residential unit resulting from circumstances other than normal use, have been paid to the licensee. For the purpose of this paragraph, the termination date shall be the date the unit is vacated by the resident and cleared of all personal belongings.... Except in the case of death or a discharge due to medical reasons, the refunds shall be computed in accordance with the notice of relocation requirements specified in the contract. However, a resident may not be required to provide the licensee with more than 30 days’ notice of termination .... The facility shall provide a refund to the resident or responsible party within days after the transfer, discharge, or death of the resident. The agency shall impose afine upon a facility that fails to comply with the refund provisions of the paragraph, which fine shall be equal to three times the amount due to the resident. One-half of the fine shall be remitted to the resident or his or her estate, and the other half to the Health Care Trust Fund to be used for the purpose specified in s. 400.418. (emphasis added).

AHCA is the agency responsible for licensing and regulating assisted living facilities in Florida pursuant to chapter 400, Florida Statutes. The agency began surveying the operations of North Hill Manor in September 2000. As pertinent to this appeal, AHCA filed an administrative complaint alleging that, after Resident moved out of the facility, North Hill had not timely refunded the full amount of advance payments made by Resident and that this failure constituted a Class III violation subject to fine under section 400.419(l)(c). In addition, AHCA asserted that only $29,300 had been refunded to Resident within the forty-five day period required by section 400.424(3)(a) and that under section 400.424(3)(a) a separate treble damage fine should be imposed for such violation.

North Hill requested an administrative hearing pursuant to section 120.57, Florida Statutes (2000). In the administrative proceeding, the administrative law judge (ALJ) agreed with AHCA that North Hill had committed a Class III violation by failing to timely refund Resident’s advance payments, but found substantial evidence of mitigation. Accordingly, the ALJ recommended a fine in the amount of $100, the smallest fine permissible under section 400.419(l)(c). The ALJ further found that Resident had been entitled to her full refund on or before September 11, 2000, the date that was 45 days subsequent to July 26, 2000, the date on which Resident moved from the facility. The ALJ rejected North Hill’s contention that the 45-day period should be calculated beginning August 25, 2000, the date on which Resident’s financial commitment to the facility ended pursuant to contract. The ALJ further found that the amount of $57,875.96 remained owing and not refunded to Resident as of September 11, 2000. The ALJ determined that the treble fine imposed by section 400.424(3)(a) was to be levied in addition to the fine imposed by section 400.419(l)(c) and that the fine under section 400.424(3)(a) was not subject to mitigation pursuant to section 400.419(3). Thus, the ALJ recommended a fine of $173,627.88 pursuant to section 400.424(3)(a).

In its final order, ACHA agreed that the treble fine under section 400.424(3)(a) could not be mitigated. ACHA disagreed with the ALJ’s recommended fine for the Class III violation under section 400.419(l)(c), however, and imposed instead a fine of $18,700 pursuant to section 400.419(4). This appeal ensued.

Forty-Five Day Refund Period

Section 400.424(3)(a) requires assisted living facilities to “provide a refund to the responsible party within 45 days after the transfer, discharge, or death of the resident.” In urging that Resident’s discharge date was August 25, 2000, the date Resident’s financial commitment to the facility ended pursuant to her contract, North Hill relies upon that portion of section 400.424(3)(a), which states that “the refunds shall be computed in accordance with the notice of relocation requirements specified in the contract.” We do not agree. The portion of the statute relied upon by North Hill, however, refers to the computation of the refund owed by the resident to the facility in the event the resident vacates the facility in violation of the thirty-day notice provision. The portion of section 400.424(3)(a) referring to the refund owed by the facility to the resident expressly provides that the facility shall pay a refund to the resident “within 45 days after the transfer, discharge, or death of the resident.” This statutory provision, not the contract between the parties, controls the timing of the payment of the refund in the instant proceeding.

Application of the Fine Limitation

North Hill submits that the legislature intended the $1,000 fine limitation under section 400.419(l)(c) to apply to section 400.424(3)(a), arguing that the legislature, in enacting section 400.424(3)(a) in 1993, is presumed to know that preexisting section 400.419(l)(e) contained a fine limitation of $1,000 on Class III violations. Compare ch. 93-216, § 19 at 2235, Laws of Florida, with ch. 80-198, § 21 at 645, Laws of Fla.; see Schwartz v. Geico General Insurance Co., 712 So.2d 773, 775 (Fla. 4th DCA 1998)(“[T]he legislature is ‘presumed to know the existing law when it enacts a statute.’ ”) (quoting Williams v. Jones, 326 So.2d 425, 437 (Fla.1975)). North Hill also points out that the legislature could have, but did not, remove section 400.424(3)(a) from the application of the fine limitations under section 400.419(l)(c).

The fine provided by section 400.424(3)(a), however, is a specific fine for failure to make a timely refund. This fine is separate and in addition to the general fines imposed for Class I through Class IV violations under section 400.419(1). The various limitations on those general fines contained in subparts (a)-(d) of section 400.419(1) apply only to the fines authorized by the particular subpart. Those limitations do not apply to other fines authorized by part III of chapter 400 and, therefore, do not limit the amount of the fine that may be imposed under section 400.424(3)(a).

Application of Mitigating Factors

Unlike the fine limitations discussed above, we hold that the legislature did intend that the mitigating factors under section 400.419(3) must be considered in determining whether and in what amount to impose the fines authorized in part III of chapter 400, including the fine authorized for violation of section 400.424(3)(a). The mitigation language of subsection (3) of section 400.419 is not limited to violations under section 400.419. Subsection (3) provides that “[i]n determining if a penalty is to be imposed and in fixing the amount of the fine, the agency shall consider” the mitigating factors. § 400.419(3), Florida Statutes (2000)(em-phasis added). Thus, we read section 400.419(3) as applying broadly to the fines imposed by section 400.424(3)(a) and elsewhere in part III of chapter 400. Accordingly, the mitigating factors in section 400.419(3) must be considered by AHCA in establishing the amount of the fine under section 400.424(3)(a).

For the reasons discussed above, we reverse and remand for further proceedings. On remand, if AHCA seeks to set a fine pursuant to section 400.424(3)(a), the ALJ shall make findings of fact as to the application of any mitigating factors to any such fine.

BOOTH and HAWKES, JJ., concur.

      . The $57,875.96 constituted the original amount of $61,200, less $3,324.04 owed to North Hill by Resident.

      . ACHA has conceded on appeal this increased fine was erroneous and that only the $100 section 400.419(4) fine recommended by the ALJ should be imposed.

      .Double jeopardy does not apply to limit sanctions in civil cases unless the "sanction as applied in individual cases is so disproportionate to the government's damages that it serves the goal of punishment.” State v. Knowles, 625 So.2d 88, 91 (Fla. 5th DCA 1993). North Hill does not argue that the statutorily imposed penalty is punitive, see Kennedy v. Mendoza-Martinez, 372 U.S. 144, 167-170, 83 S.Ct. 554, 9 L.Ed.2d 644 (1963),
      and, thus, the issue will not be considered.


text:
    BEST BUY COMPANY, INC., and ESIS, Petitioners, v. Regi PHILIP, Respondent.
    No. 1D04-3034.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2004.
    Kraig N. Johnson and Brian C. Dowling of Goodman McGuffey Lindsey & Johnson, LLP, Winter Park, for petitioners.
    No appearance for respondent.
   PER CURIAM.

Because petitioners have failed to demonstrate that any harm resulting from the lower tribunal’s alleged error cannot be remedied on appeal, the petition for writ of certiorari is DENIED.

ERVIN, ALLEN and HAWKES, JJ., concur.-


author: ORFINGER, J. TORPY, J.,

text:
    Erin WENDELL, Appellant, v. UNITED SERVICES AUTOMOBILE, etc., et al., Appellee.
    No. 5D03-2946.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    Rehearing Denied Sept. 22, 2004.

      Dennis J. Hightower of Hightower and Doane, Orlando, for Appellant.
    Jamie Billotte Moses and Jeffrey W. Kirsheman of Fisher, Rushmer, Werren-rath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee.
   ORFINGER, J.

ON MOTION FOR REHEARING

We grant Erin Wendell’s motion for rehearing, withdraw the per curiam affir-mance previously entered in this case, and substitute the following in its place.

Wendell appeals from a final judgment rendered in her favor in an uninsured motorist action brought against USAA Casualty Insurance Company. Wendell contends, among other things, that the trial court erred by making the PIP collateral source offset post trial over her objection, rather than allowing the trier of fact, in this case, the jury, to do the setoff, as required by section 627.736(3), Florida Statutes (2002). We agree.

Initially, we affirmed the trial court’s decision to make the PIP setoff post trial based on Allstate Insurance Co. v. Scott, 773 So.2d 1290 (Fla. 5th DCA 2001), and Garcia v. Arraga, 872 So.2d 266 (Fla. 4th DCA 2004). However, subsequent to our per curiam affirmance, the supreme court held in Caruso v. Baumle, 880 So.2d 540 (Fla.2004), that in lawsuits concerning motor vehicle accidents, PIP setoffs are governed by section 627.736(3), not section 768.76(1), Florida Statutes (2002), effectively overruling Scott and Garcia.

USAA argues that we should not consider Caruso because “[h]ad the Supreme Court’s Caruso decision been rendered only a few days later and outside the time for a motion for rehearing, any efforts by Appellant to seek a reversal of this Court’s decision would seem preposterous.” While that may be true, USAA’s argument ignores the general rule that appellate courts, in reviewing judgments on direct appeal, are required to apply the law prevailing at the time of the appellate decision. See Fla. East Coast Ry. Co. v. Rouse, 194 So.2d 260 (Fla.1966). We rec-ognize that the trial court and the parties did not have the benefit of Caruso at the time of the trial, just as we did not have it at the time of our original affirmance of this matter. However, we are required to apply the law as it exists at the time of the appeal, rather than that which existed when the case was tried. See Safeguard Mgmt., Inc. v. Pinedo, 865 So.2d 672 (Fla. 4th DCA 2004).

Because USAA failed to prove its PIP setoff defense before the trier of fact, as required by section 627.736(3), we affirm the judgment, but remand the matter so that the judgment can be increased by the amount of PIP benefits paid to or on behalf of Wendell by USAA, which was deducted by the trial court from the judgment post trial.

AFFIRMED AND REMANDED WITH DIRECTIONS.

PETERSON, J., concurs.

TORPY, J., concurs and concurs specially, with opinion.

TORPY, J.,

concurring and concurring specially.

I agree with the majority opinion. I write to address Wendell’s contention that payment of medical expenses by USAA, pursuant to the PIP coverage, was admissible during Wendell’s case-in-chief for the purpose of proving USAA’s liability for the injury under the uninsured motorist component of its policy. This issue is not addressed in Caruso. In my view, the lower court quite correctly ruled that this evidence could not be introduced for this purpose. Section 90.409 (2003), Florida Statutes, prohibits the introduction of “[ejvidence of furnishing, or offering or promising to pay medical or hospital expenses ... to prove liability for the injury or accident.” (emphasis added). Therefore, Wendell’s argument that a new trial is warranted so that he may introduce this evidence is without merit.

      . Of course, to benefit from a change in the law, the appellant must have preserved the issue for appellate review, as was done here. See Smith v. State, 598 So.2d 1063, 1066 (Fla. 1992).


author: SHARP, W., J.

text:
    William Paul POWELL, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1419.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.

      William Paul Powell, Jr., Century, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   SHARP, W., J.

Powell appeals from the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) to correct an illegal sentence. He argues that because the two crimes for which he was sentenced arose out of the same criminal episode, and because one sentence was a Prison Releasee Reoffender (PRR) sentence, the court could not require the two sentences be served consecutively. We affirm.

In this case, Powell was charged with three felonies; kidnapping while armed, carjacking while armed and sexual battery while armed. All three carry potential life sentences. Pursuant to a plea bargain, Powell pled guilty to false imprisonment (a lesser included offense of kidnapping) and aggravated battery (a lesser included offense of sexual battery), and the state nolle prossed the carjacking count.

The trial court sentenced Powell to 5 years in prison, a PRR sentence, for false imprisonment and for the aggravated battery, to a non-PRR sentence of 1.8 years in prison, followed by 3.2 years on probation, to be served consecutively. The total of the 2 sentences is 10 years. According to Powell’s sentencing scoresheet, 10 years was the maximum sentence under the Criminal Punishment Code. The 10 years also did not exceed the statutory maximum sentences which Powell could have received — 15 years for aggravated battery, a second degree felony, and 5 years for false imprisonment, a third degree felony. Had there been no PRR sentence involved, the 2 sentences could have been imposed consecutively, pursuant to section 921.16(1), Florida Statutes, resulting in a total of 20 years.

This court is committed to the position that if multiple crimes arise out of the same criminal episode, the court may not impose consecutive PRR sentences. See Williams v. State, 804 So.2d 572 (Fla. 5th DCA), cause dismissed, 829 So.2d 921 (Fla.2002); Smith v. State, 773 So.2d 1278 (Fla. 5th DCA 2000); Durr v. State, 773 So.2d 644 (Fla. 5th DCA 2000). In Durr, we applied the prohibition against eonsecu-tive sentencing under the Habitual Felony Offender statute to the PRR statute. However, this court has not addressed the propriety of imposing consecutive sentences in the context of a PRR sentence and a non-PRR sentence.

In Canavan v. State, 842 So.2d 306 (Fla. 5th DCA 2003), this court indicted that it was improper to impose consecutive sentences consisting of an habitual felony offender sentence followed by a non-habitual felony offender sentence, and remanded to determine clarification of the record as to whether the crimes arose out of the same criminal episode and whether the second sentence was an habitual sentence. However, in Fuller v. State, 867 So.2d 469 (Fla. 5th DCA 2004), this court determined that consecutive sentences were improper where one sentence was an habitual offender sentence and one was not, if the combined sentences extended the total beyond the statutory maximum, as enhanced by the habitual offender statute.

The First DCA, in Kiedrowski v. State, 876 So.2d 692 (Fla. 1st DCA 2004), expressly approved Fuller. In Kiedrowski, the sentence imposed (a combination of habitual and non-habitual sentences) exceeded the statutory maximum had both sentences been enhanced under the habitual offender statute, or if neither had been enhanced and they had run consecutively. The court held that sentencing structure violated Hale v. State, 630 So.2d 521 (Fla.1993).

In Dubose v. State, 834 So.2d 423 (Fla. 2d DCA 2003), the court considered whether consecutive sentences were permissible where a PRR sentence was to run consecutive to a non-PRR sentence. The court held that it was error to run a PRR sentence consecutive to a non-PRR sentence where the crimes arose out of the same criminal episode, because the effect of such a sentencing scheme was to impose a harsher penalty than that permitted under the PRR statute. The rationale expressed by the court was that under the PRR sentencing statute, a defendant is severely restricted in being able to earn gain time or serve less than a full sentence. Thus, to preserve entitlement to any possible early release that may apply to the non-PRR sentence, the defendant must be allowed to serve the PRR sentence first.

Under both lines of cases, the consecutive sentences in this case pass muster. The total sentence received by Powell (10 years) does not exceed the enhanced statutory maximum permissible for a second degree felony, nor does it exceed the possible total years he could have received, as consecutive sentences, had there been no enhancement. Further, the sentence Powell is being required to serve first is the PRR sentence.

The PRR statute is properly viewed as a minimum mandatory statute, which establishes a sentencing floor. If a defendant is eligible for a harsher sentence, the trial court may impose the harsher sentence. Also, the PRR statute is only applicable if a defendant has committed an enumerated offense and only if the state requests such a sentence. See Webster v. State, 837 So.2d 1080 (Fla. 2d DCA 2003). It is entirely possible that a defendant could commit an enumerated offense subject to PRR designation and another offense not enumerated, or one for which the state does not seek such a sentence, in the same criminal episode. Therefore, the trial judge should not be barred from imposing consecutive sentences, as long as the PRR sentence is served first.

AFFIRMED.

PALMER and ORFINGER, JJ., concur.

      . §§ 787.01, 775.087, Fla. Stat.

      . § 812.133(2)(a), Fla. Stat.

      . §§ 794.01; 775.087, Fla. Stat.


author: ORFINGER, J.

text:
    David A. WHYTE, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2440.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    James B. Gibson, Public Defender, and Christopher S. Quarles, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

After shooting his wife in the arm, David Whyte was arrested and charged with attempted second degree murder with a firearm (Count I) and aggravated battery with a firearm (Count II). Both charges arose from the same episode involving a single gunshot. At trial, the court instructed the jury on the crime of aggravated battery with a firearm as a lesser included offense of the attempted second degree murder charge. No objection was made by the defense. The jury found Whyte guilty of aggravated battery with a firearm, as a lesser included offense of attempted second degree murder in count I, and aggravated battery with a firearm as to count II. In consultation with the parties, the trial court then concluded that Whyte could only be convicted of one count of aggravated battery, and sentenced Whyte on count I, aggravated battery with a firearm as a lesser offense of attempted second degree murder. The trial court vacated Whyte’s conviction for aggravated battery with a firearm on count II. On appeal, Whyte asserts that on the facts of this case, aggravated battery with a firearm is not a lesser included offense of attempted second degree murder, and, thus, he was improperly convicted of a crime for which he was not charged.

As to the attempted second degree murder charge, the information read:

[The State Attorney charges] that [Whyte] did unlawfully, by an act imminently dangerous to another, and evincing a depraved mind, regardless of human life, although without any premeditated design to effect the death of any particular individual, attempt to kill and murder, a human being, by pointing a firearm, in Lorene Whyte’s direction and firing, and in the course thereof, DAVID ALEXANDER WHYTE did discharge said firearm, in violation of Florida Statute 782.04(2), 777.04(1), 775.087(1) and 775.087(2)(a)(2).

(emphasis added).

Generally, a jury instruction cannot be given on a permissive lesser included offense unless both the accusatory pleading and the evidence support the commission of that offense. State v. Von Deck, 607 So.2d 1388, 1389 (Fla.1992). While aggravated battery may be a permissive lesser included offense of attempted second degree murder depending on the allegations in the information, here, the information as to count I, did not allege that Whyte intentionally or knowingly caused great bodily harm or permanent disability to the victim, as is required to prove aggravated battery. See Lane v. State, 861 So.2d 451, 453 (Fla. 4th DCA 2003). Therefore, as Whyte argues, the jury should not have been instructed on aggravated battery as a lesser included offense of attempted second degree murder.

However, Whyte candidly concedes on appeal that his trial counsel did not object to the jury instructions or the verdict form. As a result, the error is not preserved for appellate review. See James v. State, 845 So.2d 996 (Fla. 5th DCA 2003) (holding that jury instruction errors of this type are not fundamental and cannot be raised for the first time on appeal); see also Ray v. State, 403 So.2d 956 (Fla.1981). Whyte urges us to reject our precedent and instead hold that an error such as the one presented here is fundamental and can be raised for the first time on appeal. We decline to do so. Our conclusion to reject Whyte’s argument is premised in part on our opinion in James, and in part on the fact that Whyte’s jury clearly intended that he be convicted of aggravated battery with a firearm. The problem arose only when the trial court erroneously vacated Whyte’s conviction as to count II, rather than recognizing the pleading defect in count I.

The error presented here is clearly harmless. To promote judicial economy and so as to avoid further consideration of the issue in a postconviction proceeding, we reverse the conviction as to count I and remand the matter with directions that the conviction as to count II be reinstated. Because the offenses and penalties are the same, resentencing is unnecessary. However, the trial court shall enter a corrected sentencing order, indicating that Whyte’s conviction is for count II rather than count I.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

PETERSON and TORPY, JJ., concur.


author:
BENTON, J.
      ERVIN, J.,

text:
    Charles BARR, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3224.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Rehearing Denied Sept. 21, 2004.
    Nancy A. Daniels, Public Defender; M. Gene Stephens, Assistant Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

On direct appeal of his conviction for sale or delivery of cocaine, Charles Barr contends that the trial court erred in precluding cross-examination about the “take-down signal” which allegedly led to his arrest. We reverse and remand for a new trial at which any State’s witness testifying that a “takedown signal” was given because a sale of crack cocaine took place can be fully cross-examined on the point.

Mr. Barr stood trial on charges of selling or delivering a rock of crack cocaine to Walter Cullen, an undercover narcotics detective, while they were in the front seat of a car. At the time, Detective Cullen testified on direct, he was engaged in a “buy-bust operation” in which “takedown units” moved in and arrested citizens, but only after he had consummated the purchase of an illegal drug, and communicated the fact by using a concealed microphone to give the “takedown signal” — a codeword agreed upon beforehand to signify that an illegal sale had taken place, and that the seller should be arrested.

The jury heard conflicting versions of events. But there was no dispute that, posing as a construction worker at a nearby site, Detective Cullen told Mr. Barr, to whom he called from the car he was in, that he was interested in sixty dollars’ worth of cocaine; then said he would entrust him with twenty dollars to start with “because I don’t know you,” and that he would give him the remaining forty dollars if he brought cocaine back.

Detective Cullen testified that, after he gave Mr. Barr twenty dollars, Mr. Barr disappeared from sight on foot before returning, getting in the ear, and directing Detective Cullen to “take off.” Detective Cullen also testified: As he started to drive away, Mr. Barr handed him a piece of crack cocaine, whereupon Detective Cullen uttered the takedown signal. Before any takedown unit responded to the take-down signal, however, again according to Detective Cullen, he saw a car containing a takedown unit (two police officers) parked on the side of the street and pulled his car in front of theirs. Thereupon, the detective further testified, the takedown unit officers emerged from their vehicle, approached Detective Cullen’s car, pulled Mr. Barr out of the car, and handcuffed him.

On the other hand, Mr. Barr denied the sale or delivery of any crack cocaine. He testified that he took the twenty dollars from Detective Cullen, walked out of sight, and hid the money. (The money was never recovered.) Mr. Barr testified that he came back and got into the car, not intending to hand over any cocaine, but with the intention of directing Detective Cullen around a corner where he intended to take the rest of the money and run down an alley with it. Before Mr. Barr could carry out this plan, he testified, Detective Cullen pulled in and parked in front of the take-down team, who got out of their car and arrested him.

The microphone concealed on Detective Cullen’s person picked up what was said beginning before Mr. Barr got into the car and ending after he was arrested. A recording was made on audiotape, which came in evidence. At trial, Detective Cullen testified on direct examination, “After he gave me the piece of crack cocaine, I gave the takedown signal letting the take-down units know that the transaction had taken place, that I did have the crack cocaine.” On cross-examination, defense counsel sought to ascertain what the take-down signal was, in order to permit the jury to decide for themselves whether it was on the audiotape. But the trial judge cut off this line of inquiry ex mero motu:

Q Now what’s the takedown signal?
A It is a predetermined word we use.
Q What’s the takedown signal in this case?
The Court: Hold on. Hold on. I am not going to require him to give a take-down signal, Mr.—
Mr. Shirk [Defense counsel]: I think it’s important to know on this tape where it is he gave the takedown signal. It goes toward our defense.
The Court: I am not going to require he give out the takedown signal at this point.

The trial judge did not allow cross-examination or other inquiry about the takedown signal at any later point either, but did elaborate on his rationale for keeping the takedown signal a secret in a colloquy with defense counsel:

I’m still not understanding why it matters what the takedown signal is ... as opposed to when. I think it’s pretty clear the takedown signal was given after Mr. Barr — after he got back in the car and before he was arrested. That to me gives the defense sufficient ground to argue whatever you are going to argue just precisely what it is. It’s my analysis it’s dangerous — the takedown signal is pretty much the same throughout the city. If it is disclosed now, it would be all over the city tonight and there wouldn’t be enough time to change it. I just don’t see — I haven’t been able to see the importance of what the take-down signal [was]. That’s the reason I prohibited it.
Mr. Shirk: Your Honor, that’s assuming the testimony is completely accurate, assuming everything was said was accurate and that’s the purpose of the trial to determine what the facts are.
The Court: I rule that wé are going to move on to something else.

The State argued that the fact that a takedown signal was given proved that a transaction had taken place. Without knowing the precise word or words used as the takedown signal, the defense’s ability to challenge the State’s witnesses’ testimony that the takedown signal had been given was compromised, and the jury had no way to determine whether the audiotape corroborated or disproved their testimony.

Because “[t]he testimony which the appellant tried to elicit related directly to the transaction, event, and subject which the witness had testified to on direct examination by the prosecutor[,] ... in addition to [his] right to offer the evidence under the evidence code, the appellant also had a constitutional right to conduct the examination and receive answers to [his] questions.” Johnson v. State, 595 So.2d 132, 135 (Fla. 1st DCA 1992), disapproved on other grounds, Heuss v. State, 687 So.2d 823 (Fla.1996). See U.S. Const, amend, v. & VI; see also Art. I, § 16, Fla. Const. By permitting the State to present testimony that the takedown signal was given, but not allowing the defense a fair opportunity to challenge the assertion, “ ‘[t]he trial court’s ruling required defense counsel to trust — not test — [the] Officer[’s] testimony.’ ” Judd v. State, 781 So.2d 440, 443-44 (Fla. 4th DCA 2001) (citations omitted) (holding Sixth Amendment confrontation rights severely restrict police officers’ ability to conceal operational methodologies such as surveillance locations). The question “What’s the take-down signal in this case?” was plainly related to Detective Cullen’s testimony on direct examination and went to issues central to the case.

Whether keeping the “takedown signal” secret serves any purpose that varying it would not serve, appellant’s basic due process and confrontation rights outweigh any “need” for official secrecy here. See Johnson, 595 So.2d at 135 (“The only reasons given for barring the testimony were (1) preserving the secrecy of the observation point for purposes of other investigations, and (2) protecting [Officer] Ratcliffs safety, should he use the same observation point in the future. These reasons are not recognized by any privilege, constitutional right, statute or rule. Accordingly, the evidence was not exempt from disclosure.”); see also A.E. v. State, 599 So.2d 713, 714-15- (Fla. 1st DCA 1992) (holding officer had to reveal the location from which he had made observations, where it was relevant to the theory of defense, despite assertions that revelation would hamper ongoing drug investigations and possibly even endanger the life of the officer); accord Judd v. State, 781 So.2d 440, 443-45 (Fla. 4th DCA 2001) (holding trial court erred in refusing to require an investigating detective to reveal the location from which he conducted surveillance, where no actual danger was posed to civilians, and in the absence of any officer safety exemption from disclosure).

The trial court’s error cannot be deemed harmless. See A.E., 599 So.2d at 715 (“Whether or not A.E. was prejudiced by the appealed rulings cannot be determined from the record before us because the circuit court refused to allow disclosure of the concealed position. Thus, we cannot treat the erroneous rulings as harmless error because the state cannot carry its burden on this issue.”); see also Goodwin v. State, 751 So.2d 537, 543-44 (Fla.1999); State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986).

Reversed and remanded.

LEWIS, J„ concurs; ERVIN, J., dissents with opinion.

ERVIN, J.,

dissenting.

I agree with the majority that the admission of the takedown signal would be relevant evidence, ie., “evidence tending to prove or disprove a material fact.” Section 90.401, Fla. Stat. (2000). I agree also with the majority that the exclusion of such evidence was erroneous; I disagree, however, with its conclusion that the error was harmful. Initially, I consider that the admission of such evidence would have been only marginally relevant. The conversation that transpired between the appellant and the undercover officer was played before the jury, and the jury was made aware of any possible omission of any word or words on the audiotape, which could reasonably be considered a signal to other surveilling officers. Despite the lower court’s restriction of cross-examination, defense counsel was fully able to argue to the jury the absence of the purported signal on the tape, and that nothing on the tape revealed the transfer of crack cocaine, which corroborated the defendant’s testimony. Notwithstanding this defense, the jury resolved the credibility issue in favor of the state.

After this court’s decisions in A.E. v. State, 599 So.2d 713 (Fla. 1st DCA 1992), and Johnson v. State, 595 So.2d 132 (Fla. 1st DCA 1992), reversing the trial court’s limitation of cross-examination of state witnesses, the Florida Supreme Court approved the following statements made by the United States Supreme Court in Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), observing that “ ‘trial judges retain wide latitude ... to impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is repetitive or only marginally relevant.’ ” Moore v. State, 701 So.2d 545, 549 (Fla.1997).

In applying the harmless error test of State v. DiGuilio, 491 So.2d 1129 (Fla.1986), to the ease at bar, it is very difficult for me to believe that the state did not meet its burden of proving beyond a reasonable doubt that the error complained of did not contribute to the verdict reached by the jury. If Detective Cullen were required on retrial of the case to reveal the identity of the signal, I would be unable to reasonably conclude that such fact alone would cause the result to be different, ie., that the jury would then believe the defendant’s version of the events and acquit him. All that would change would be the testimony of the officer articulating the signal that may or may not have been on the tape. The attenuated possibility of a different outcome is, in my judgment, unreasonably remote. I would affirm.


text:
    William G. THOMAS, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D03-3400.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Appellant William G. Thomas, pro se.
    Charles J. Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The circuit court should have considered appellant’s Motion for Reconsideration as a Motion to Amend the Petition for Writ of Mandamus. Given that the motion set forth additional facts that refuted the factual conclusions reached by the court in denying the Petition for Writ of Mandamus, such motion should have been granted. See Cason v. Fla. Parole Comm’n, 819 So.2d 1012, 1013 (Fla. 1st DCA 2002); Hall v. Key, 476 So.2d 787, 789 (Fla. 1st DCA 1985). REVERSED and REMANDED for further proceedings.

ERVIN, BOOTH, and KAHN, JJ., concur.


text:
    Stefan M. LINDEN, Appellant, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Appellee.
    No. 1D04-0174.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Stefan M. Linden, pro se, appellant.
    No appearance for appellee.
   PER CURIAM.

The order of the circuit court is reversed and remanded on authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). On remand, the circuit court shall consider the merits of the petition.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Elbert FRANCIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2332.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Elbert Francis, pro se, petitioner.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is granted. Petitioner shall be allowed a belated appeal of the January 21, 2004, order in Leon County Circuit Court case number 1987-CF-2416. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Darrell GRISSETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2406.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Darrell Grissett, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. Fla. R.App. P. 9.141(c)(4)(B).

BARFIELD, VAN NORTWICK and PADOVANO, JJ., concur.


text:
    Irvin ROBINSON, Petitioner, v. James V. CROSBY, Jr., Secretary, Department of Corrections, Respondent.
    No. 1D04-3312.
    District Court of Appeal of Florida, First District.
    Sept. 8, 2004.
    Irvin Robinson, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied as procedurally barred. Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

WOLF, C.J., ERVIN and LEWIS, JJ., concur.


author: SHEPHERD, J.

text:
    Walter VELEZ, Appellant, v. MIAMI-DADE COUNTY POLICE DEPARTMENT, Appellee.
    No. 3D03-1535.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.

      Paul Morris; Robert A. Rosenblatt, Miami, for appellant.
    Roberto E. Fiallo and Robert Knabe, for appellee.
    Before FLETCHER, RAMIREZ, and SHEPHERD, JJ.
   SHEPHERD, J.

This is an appeal from an order denying appellant, Walter Velez, standing to contest the forfeiture of $489,880 in cash seized from a vehicle being driven by Velez in Miami-Dade County. The facts of the case are not seriously disputed.

On December 12, 2002, Walter Velez (Velez) was stopped for a routine traffic infraction by a Miami-Dade police officer. Velez presented a drivers license and vehicle registration in his name. A records check revealed that Velez also had a suspended license in the name of Walter Dario Agudelo, which raised the officers suspicion. A suitcase in the rear seat of the vehicle was in plain view. WTien questioned, Velez said the suitcase merely contained clothing. He gave a verbal and written consent to a search. As it turned out, the suitcase contained four hundred eighty-nine thousand eight hundred eighty dollars ($489,880.00), mostly in twenty dollar bills, secured in quick count bundles with rubber bands. Velez then said the money did not belong to him but had been given to him by a person he did not know. Another records check revealed that neither Velez nor his front-seat passenger (who also denied any relationship to the cash) were licensed as money transmitters, as required by the Florida Department of Banking and Finance; nor were there any filings of a Currency Transaction Report or IRS Form 8300 regarding the monies. The police seized the money for forfeiture.

On December 27, 2002, Velez requested an adversarial preliminary hearing under section 932.703(2)(a) of the Florida Contraband Forfeiture Act (the Act) [§§ 932.701-07 Fla. Stat. (2003) ]. The hearing was held on January 6, 2003. Velez was not personally present, but rather appeared through counsel. There was no evidence offered by Velez to support an ownership or pos-sessory interest in the seized currency. Munoz v. City of Coral Gables, 695 So.2d 1283, 1288 (Fla. 3d DCA 1997) (party desiring to challenge probable cause at preliminary hearing must offer “sworn proof of a possessory and/or ownership interest” in seized property). Rather, when queried by the court as to whether he had anything to substantiate his client’s standing to contest the seizure of the money, Velez’ counsel argued that because it was admitted in the sworn complaint in the action that the money was in Velez’ .possession at the time of the seizure, he was a person entitled to notice as defined by § 932.701(9)(e), Fla. Stat. and therefore had standing to participate. Id. The trial judge disagreed, relying upon this court’s decision in Vasquez v. State, 777 So.2d 1200 (Fla. 3d DCA 2001), and concluded that probable cause existed to seize the monies based on allegations made in the sworn complaint. We affirm.

Under controlling precedent in this district, “a claimant to seized currency must come forward -with sworn proof of a possessory and/or ownership interest in the same to acquire standing to contest the forfeiture proceeding.” Id. at 1202. We have further stated that standing to participate in an adversarial preliminary hearing is “a preliminary issue for the court” on which “the claimant must provide a sworn statement setting forth the factual basis of the claim.” Gonzalez v. City of Homestead, 825 So.2d 1050, 1052 (Fla. 3d DCA 2002) (“The oath serves as a cautionary device and, in a case of a false statement, a possible predicate for a perjury prosecution.”) Thus, it is clear where standing is at issue at the outset of an adversarial preliminary hearing, that the claimant may not simply fall back on the allegations of the seizing authority. See Office of the State Attorney v. Jimenez, 845 So.2d 914 (Fla. 3d DCA 2003) (holding that a sworn affidavit by claimant, which was consistent with facts alleged in the forfeiture complaint, sufficient to demonstrate required ownership interest). On the other hand, where the claimant comes forth with sworn proof sufficient to create an issue on the question of standing, we have concluded that “the better procedure is to hold an evidentiary hearing.” Vasquez, Ill So.2d at 1202.

In the instant case, Velez came forward with no sworn proof on the question of standing. Thus, the trial court properly denied Velez the opportunity to participate at the adversarial preliminary hearing. In so holding, however, we recognize that our decision directly conflicts with our sister courts holdings in City of Fort Lauderdale v. Baruch, 718 So.2d 843 (Fla. 4th DCA 1998) (“A ‘person entitled to notice’ need not demonstrate a proprietary interest in the property at issue, but only that he was ‘in possession’ of the property when it was seized”) and Jean-Louis v. Forfeiture of $203,595.00 in U.S. Currency, 767 So.2d 595, 598 (Fla. 4th DCA 2000) (holding that “appellants have standing in the preliminary hearing, as at the very least, they were in possession of the money at the time of its seizure”). Accordingly, pursuant to Art. 5, § 3(b)(4) of the Florida Constitution, we certify conflict between the Third District and Fourth District Courts of Appeal on the following:

DOES A PERSON IN MERE POSSESSION OF PROPERTY AT THE TIME OF SEIZURE HAVE STANDING AT AN ADVERSARIAL PRELIMINARY HEARING TO CHALLENGE THE SEIZURE WITHOUT SHOWING A PROPRIETARY INTEREST IN THE PROPERTY?

We affirm and certify the above conflict.

      . See § 560.123 Fla. Stat. (2004).