text:
    John Egan ROSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1436.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.

      Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before LEVY, SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

John Egan Rosa appeals his judgment of conviction and sentence on two charges of robbery without a firearm, two charges of aggravated battery on a law enforcement officer, and a charge of aggravated fleeing or eluding of a law enforcement officer. We reverse the trial court’s judgment of conviction on the aggravated battery charge on Officer Adlet because the evidence was legally insufficient to establish the offense.

On February 19, 1998, A1 Cazoli and Mary Kick were robbed at gun point. Officer Komie arrived at the scene shortly after the robbery. Both Cazoli and Kick gave Officer Komie a description of the robbery, the robber, the gun used, as well as a description of the vehicle which the robber used to flee.

As a result of Officer Komie’s BOLO, a high speed chase ensued involving a number of police officers, including Officer Ad-let and Officer Morales. The suspect vehicle, a Monte Carlo, eventually crashed against a guard rail and Officer Adlet’s police vehicle. Officer Adlet was unbuckling his seatbelt when he noticed that the Monte Carlo was in reverse. The impact damaged the bumper of Officer Adlet’s vehicle, caused a strobe light to fall off the dashboard, and cracked a turn signal light. The impact also caused the door of the police vehicle to strike Officer Morales and injure his arm and shin area.

The chase continued, however, until the Monte Carlo came to a stop and the driver fled. The police arrested the Monte Carlo’s two passengers. Shortly thereafter, the police also arrested the driver at a nearby home. Cazoli subsequently identified the Monte Carlo as the vehicle he recalled having seen after the robbery. Both Cazoli and Kick identified Rosa as the robber at a show-up. Cazoli also identified Rosa at trial. The police recovered the stolen items from inside the Monte Carlo.

Appellee State of Florida charged Rosa with robbery with a deadly weapon or firearm, unlawful possession of a weapon while engaged in a crime, aggravated battery on two law enforcement officers using a deadly weapon, and aggravated fleeing or eluding a law enforcement officer. A jury found Rosa guilty of all charges, except unlawful possession of a weapon while engaged in a crime. The trial court accordingly entered judgments of guilty and entered a judgment of acquittal on the charge of unlawful possession of a weapon.

Rosa argues that his motion for judgment of acquittal on the aggravated battery charge on Officer Adlet should have been granted because there was insufficient evidence to prove a battery on Officer Adlet. We agree.

The offense of aggravated battery which arises from a defendant’s ramming of another vehicle must be proven through the introduction of evidence that the occupants of the rammed vehicle were injured, jostled, moved about within the vehicle, or had to brace themselves for protection against the impending impact. See V.A. v. State, 819 So.2d 847, 849 (Fla. 3d DCA 2002). There is no evidence in this ease that Officer Adlet was injured, jostled, moved, or had to brace himself so as to protect against the impact of Rosa’s vehicle. We cannot infer from the record, including the testimony of police officers concerning the collision, that the impact from Rosa’s vehicle was of such magnitude so as to cause Officer Adlet to move. The evidence in this case, taken in the light most favorable to the State, see Nelson v. State, 753 So.2d 648, 649 (Fla. 3d DCA 2000), is thus insufficient for a jury to conclude that there was a battery upon Officer Adlet.

We find no error in the trial court’s denial of Rosa’s motion for mistrial, and no merit to Rosa’s other arguments raised in this appeal.

Reversed in part, affirmed in part, and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jermaine DUHART, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1759.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Jermaine Duhart, in proper person.
    Bennett H. Brummer, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before JORGENSON, COPE, and GODERICH, JJ.
   PER CURIAM.

This Court’s opinion dated September 4, 2002, is withdrawn and substituted with the following opinion.

Based-on the State’s proper confession of error, the motion for rehearing is granted, the order denying post conviction relief is reversed, and the cause is remanded to the trial court for a new sentencing proceeding, as the defendant was erroneously sentenced as a habitual violent felony offender and he must now be re-sentenced as a habitual offender.

Reversed and remanded.


author: MAASS, ELIZABETH T., Associate Judge.

text:
    Eric McGHEE, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1828.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   MAASS, ELIZABETH T., Associate Judge.

Eric McGhee appeals his sentences for driving under the influence (“DUI”) manslaughter and DUI causing injury to the property of another. We affirm his sentence on the felony, and the imposition of DUI school as a special condition of probation on the misdemeanors, but reverse as to the other special conditions imposed.

McGhee entered an open plea to DUI manslaughter and five counts of DUI causing damage to the property of another based on a May 30, 1999, driving episode. He filed a written motion requesting a downward departure from the felony sentencing guidelines contending, among other grounds, that he committed the crime in an unsophisticated manner and the crime was an isolated incident for which he had shown remorse. After an evidentiary hearing, the trial judge denied the motion and sentenced McGhee to 10.9 years imprisonment on the DUI manslaughter. The trial judge also placed McGhee on concurrent terms of six months probation for the misdemeanor offenses of DUI property damage, imposing what the court termed “mandatory” special conditions that McGhee pay a $250 fine, attend Level 1 DUI school, perform fifty hours of community service, and have his car immobilized for ten days.

McGhee contends that the trial judge erred in determining that, as a matter of law, DUI cannot be committed in an unsophisticated manner, and in imposing the special conditions on his probation.

This court has held that the crime of DUI cannot be committed in an unsophisticated manner, as contemplated by section 921.0026(2)(j), Florida Statutes (Supp. 1998). See State v. Beck, 763 So.2d 506, 508 (Fla. 4th DCA 2000); State v. Warner, 721 So.2d 767, 769 (Fla. 4th DCA 1998). Both the first and second districts have disagreed. See Leveritt v. State, 817 So.2d 891, 898 (Fla. 1st DCA 2002); State v. VanBebber, 805 So.2d 918, 920-21 (Fla. 2d DCA 2001), review granted, 819 So.2d 139 (Fla.2002).

VanBebber is pending before the Florida Supreme Court. If the trial judge had found that, as a matter of law, DUI can not be committed in an unsophisticated manner, it may have been prudent for us to delay .ruling pending the decision in VanBebber; however, the record does not support McGhee’s contention that the trial judge declined to consider the issue. Instead, the sentencing hearing transcripts make clear that McGhee abandoned his contention that the crime was committed in an unsophisticated manner. McGhee presented no evidence to support his position. His counsel stated, when the trial judge questioned her at the first sentencing hearing about the motion for downward departure, “I don’t think the DUI was unsophisticated. I don’t think that it is.” At the conclusion of the continued sentence hearing, the trial judge asked whether the motion for downward departure was based on two arguments: McGhee’s need for and amenability to mental health treatment and his professed inability to conform his actions to the requirements of law. Defense counsel responded ‘Tes, Judge.”

The trial judge placed McGhee on six months probation for the crimes of DUI causing damage to the property of another, imposing what he described as “mandatory conditions” that McGhee pay a $250 fine, attend Level I DUI school, perform fifty hours of community service, and have his car immobilized for ten days. McGhee contends that under section 316.193(3), Florida Statutes (Supp.1998), these conditions are not mandatory.

Section 316.193 provides, in pertinent part:

(1)A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a)The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of 0.08 or more grams of alcohol per 210 liters of breath.
(2)(a) Except as provided in ... subsection (3), ... any person who is convicted of a violation of subsection (1) shall be punished:
1.By a fine of:
a. Not less than $250 or more than $500 for a first conviction.
2.By imprisonment for:
a. Not more than 6 months for a first conviction.
(3) Any person:
(a) Who is in violation of subsection
(i);
(b) Who operates a vehicle; and
(c) Who, by reason of such operation, causes:
1. Damage to the property or person of another commits a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.
2. Serious bodily injury to another, as defined in s. 316.1933, commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
3. The death of any human being commits DUI man-slaughter, and commits:
a. A felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
b. A felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if:
(I) At the time of the accident, the person knew, or should have known, that the accident occurred; and
(II) The person failed to give information and render aid as required by s. 316.062.
(5) The court shall place any offender convicted of -violating this section on monthly reporting probation and shall require attendance at a substance abuse course licensed by the department....
(6) With respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to ... subsection (3) ...
(a) For the first conviction, the court shall place the defendant on probation for a period not to exceed 1 year and, as a condition of such probation, shall order the defendant to participate in public service or a community work project for a minimum of 50 hours; ... However, the total period of probation and incarceration may not exceed 1 year. The court must also, as a condition of the probation, order the impoundment or immobilization of the vehicle that was operated by ... the defendant ... for a period of 10 days....

Section 775.083(l)(d), Florida Statutes (1997) provides for a fine of up to $1,000.00 on a first-degree misdemeanor. There is no minimum fine.

Legislative intent controls statutory construction. See Reynolds v. State, 2002 WL 31856732, 842 So.2d 46, 47 (Fla. Dec. 19, 2002). Intent is most clearly manifested by the language used. Id. Consequently, there is no need to resort to principles of statutory construction where the statute’s language is clear. Fla. Convalescent Ctrs. v. Somberg, 2003 WL 252155, 840 So.2d 998, 999 (Fla. Feb. 6, 2003).

McGhee contends that the trial judge erred in finding that he was required to impose any special conditions on his probation. He argues that, under section 316.193(3)(c)l., DUI causing damage to property is punishable solely as provided in section 775.082 and section 775.083, and that section 316.193(6) applies only to a conviction for violation of subsection (1) of the same section.

Section 316.193(5) by its terms applies to “any offender convicted of violating this section.” In contrast, subsection (6) applies to “any person convicted of a violation of subsection (1).” The variation in wording is a distinction with a difference. See Parker v. State, 406 So.2d 1089, 1092 (Fla.1981). Subsection (5) requires probation and DUI school on any violation of section 316.193. Subsection (6)(a) requires community service and vehicle immobilization only on convictions for violations of subsection (l)., See Zopf v. Singletary, 686 So.2d 680, 681-82 (Fla. 1st DCA 1997) (where statute specifically enumerates people covered, ordinarily statute will be construed to exclude those not mentioned).

Even if the statute were not clear on its face, application of traditional principles of statutory construction would lead to the same conclusion. The language of subsection (5) has been carried forward since the crime of DUI causing property damage was first incorporated into section 316.193 in 1986, and has been left substantially unaltered despite numerous other statutory revisions. Had the legislature not intended it to apply to DUI with property damage, it had every opportunity to amend it.

Importantly, subsection (6) limits the period of probation and incarceration for a first conviction to one year, a period inconsistent with section 316.193(3)c.2. and 3, which create first, second, and third degree felonies. Statutes should, whenever possible, be construed harmoniously. See Jones v. State, 813 So.2d 22, 25 (Fla.2002); Graham v. Jenne, 837 So.2d 554, 558-59 (Fla. 4th DCA Feb.12, 2003). It is doubtful that the legislature intended to limit the term of incarceration on a first degree felony of DUI manslaughter to one year.

Finally, the statutory scheme makes sense: everyone convicted of DUI, in whatever form, must complete a substance abuse course. However, a trial judge is not required to make a violator convicted of DUI with personal injury or property damage perform community service or have his car immobilized. These terms may not be practical or desirable if a defendant is serving a long prison sentence prior to his probation.

Like section 316.193(6), and in contrast to subsection (5), section 316.193(2) applies only if the person is convicted of a violation of subsection (1). By its terms, it does not apply to those convicted of a violation of subsection (3). Again, even if the language used were not explicit, application of traditional principles of statutory construction would yield the same result.

McGhee contends, in essence, that the fine prescribed by subsection (3) supplants that which is prescribed by subsection (2). The state contends that the language “except as provided in ... subsection (3)” should be read to mean except as modified by or inconsistent with subsection (3).

In the context of a criminal case, statutory interpretation is tempered by due process concerns. See Perkins v. State, 576 So.2d 1310 (Fla.1991). A criminal statute must apprise an ordinary person of common intelligence of both the prohibited acts and their penalties. See Borjas v. State, 790 So.2d 1114, 1115 (Fla. 4th DCA 2001). This lenity principle, codified at section 775.021(l)-(2), Florida Statutes (1997), requires criminal statutes, including penal statutes, to be strictly construed in the accused’s favor. See State v. Byars, 823 So.2d 740, 742 (Fla.2002); Perkins, 576 So.2d at 1314; Jenne, 837 So.2d 554, 558-59.

A penal statute is ambiguous if reasonable people can offer different, but reasonable, interpretations. See State v. Huggins, 802 So.2d 276, 277 (Fla.2001). “Except” may mean either “with the exclusion of’ .or “otherwise than.” American Heritage College Dictionary 477 (3d ed.1993). The competing interpretations offered by McGhee and the state are each reasonable. Consequently, the statute must be narrowly construed to provide that a person found guilty of a DUI damaging the property of another is subject to a maximum fine of $1,000.00, but no minimum fine.

Additional support for our ruling is found in State v. Griffith, 540 So.2d 916 (Fla. 2d DCA 1989). There, the defendant pled guilty to two counts of DUI. Because of his extensive prior history, the crimes were prosecuted as felonies. The version of section 316.193 in effect when the crimes were committed provided, in pertinent part:

(2)(a) Except as provided in paragraph (b) ... any person who is convicted of a violation of subsection (1) shall be punished:
1. By a fine of:
c. Not less than $1,000 or more than $2,500 for a third conviction; and.
(b) Any person who is convicted of a fourth or subsequent violation of subsection (1) is guilty of a felony of the third degree, punishable as provided in ... s. 775.083....

§ 316.193(2).

The second district held that the statute: provides an escalating schedule of mandatory fines and maximum jail sentences depending upon whether the conviction is the offender’s first, second, or third. § 316.193(2)(a), Fla. Stat. (1987). Fourth and subsequent convictions, however, are dealt with in a separate subsection, 316.193(2)(b), which specifies only that the offense is a felony of the third degree and makes no reference to fines. In fact, subsection (b) is specifically excluded from the fine schedule in subsection (a).

Griffith, 540 So.2d at 917.

By footnote, the court noted that while no minimum fine was imposed by section 775.083(l)(a)-(c), Florida Statutes (1987), a fine of up to $5,000.00 could be imposed. Griffith, 540 So.2d at 917 n. 1. In response, in 1991 the legislature amended the statutory subsection which subjected fourth and subsequent DUI offenders to the penalties prescribed for third degree felonies by

adding “(h)owever, the fine imposed for such fourth or subsequent violation may not be less than $1,000.” See Ch. 91-255, § 1, at 2444, Laws of Fla. No similar change was made to section 316.193(3)(c)l.

In summary, we conclude that (1) McGhee abandoned his claim that the crime was unsophisticated, justifying a downward departure on his felony DUI; and (2) the trial judge properly placed him on probation for the misdemeanor DUI offenses, imposing the mandatory special condition of DUI school attendance. However, the trial judge erred in imposing what he believed to be a “mandatory” minimum fine of $250.00, community service, and immobilization of his vehicle. Consequently, the action is remanded to the trial court for resentencing on the misdemeanors consistent with this opinion.

SHAHOOD and GROSS, JJ., concur.

      . McGhee’s abandonment of his contention that he committed the crime in an unsophisticated manner is not surprising, given the facts of the case: he mixed prescription medication and alcohol; took his mother’s car without permission after becoming agitated when a family Memorial Day picnic was rained out; went joy riding with two under-aged nephews; caused an accident which resulted in the death of a young husband on the way to the beach with his wife; and lied about his name at the scene, knowing there was a warrant out for his arrest.

      . Prior to 1986, section 316.193(1) defined the crime and subsection (2) prescribed minimum and maximum fines, and maximum sentences. Former subsection (4), now renumbered as subsection (6), provided that ‘‘[w]ith respect to any person convicted of a violation of subsection (1), regardless of any penalty imposed pursuant to subsection (2),” the court for a first conviction was required to place the defendant on probation and order that he perform at least fifty hours of community service. See § 316.193(4)(a), Fla. Stat. (1985). At the time, subsection (1) was the only subsection that defined a crime. Consequently, it was the only subsection that could be violated. Subsection (4)’s inclusion of the language “regardless of any penalty imposed pursuant to subsection (2)” simply acknowledged that probation was required in addition to the fine and sentence addressed in subsection (2). Unfortunately, when the crime of DUI causing injury to person or property was incorporated into section 316.193(3) in the 1986 amendments, the legislature amended subsection (6) to read "regardless of any penalty imposed pursuant to ... subsection (3) ...," wrongly implying that a defendant may be convicted for violating both (1) and (3) as part of a single offense. Since a defendant may not be convicted under (1) but penalized under (3), this language is superfluous. See Pulaski v. State, 540 So.2d 193 (Fla. 2d DCA 1989) (finding that DUI causing injury is not mere enhancement of penalty for DUI, but a discrete crime).

      . Florida Chapter 88-5, Laws of Florida, added the requirement of probation in subsection (5). See Ch. 88-5, § 2, at 191, Laws of Fla. Prior to that time, DUI school, but not probation, was required.

      . Prior to 1986, driving under the influence (DUI) and driving while intoxicated (DWI) represented separate offenses. See § 316.193, Fla. Stat. (1985); § 316.1931, Fla. Stat. (1985). Only DWI carried enhanced penalties where the driving episode caused an accident. See § 316.1931(2), Fla. Stat. (1985). In 1986, DWI was repealed and its concept incorporated into section 316.193, Florida Statutes. See Ch. 86-296, § 1, at 2221, Laws of Fla. Subsection (3) in substantially its 1998 version was added. Former subsection (3), requiring attendance at a substance abuse course, became subsection (5) and continued to apply to "any person convicted of violating this section.”

      . Our view is buttressed by a review of section 316.1931, Florida Statutes (1985), the DWI law, which specifically provided that "the penalty imposed for [DWI with property damage] shall not be less than the penalty provided under s. 316.193.” § 316.1931(2)(a). When section 316.1931 was repealed and the crime of DUI with property damage incotpo-rated into section 316.193(3), this plain directive to impose at least the required minimum punishment for a simple DUI was dropped.

      . The legislative history supports the position that the legislature accepted Griffith when it noted that the 1989 law permitted a fine of less that $1,000.00 for a fourth or subsequent DUI conviction, though a third conviction carried a $1,000.00 minimum mandatory fine. H.R. Comm, on Criminal Justice, Final Bill Analysis & Economic Impact Statement, CS/HB 343, 759, 1139 & 2073 (passed as Chapter 91-255, Laws of Florida).


author: PER CURIAM. GREEN, J.

text:
    STATE of Florida, Appellant, v. Dennis TATAKIS, Appellee.
    No. 3D02-958.
    District Court of Appeal of Florida, Third District.
    March 26, 2003.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellant.
    George T. Pallas, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002).

GREEN, J.

(specially concurring).

The doctrine of stare decisis compels me to join in the reversal of this cause, but I continue to adhere to the view that Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), was correct in its conclusion that Chapter Law 99-188, Laws of Florida, violates the single subject rule of the Florida Constitution, accord Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d -, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002).


author: PER CURIAM. ERVIN, J.,

text:
    Robert Lavon SANDERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-5033.
    District Court of Appeal of Florida, First District.
    March 31, 2003.

      Appellant, pro se.
    Robert A. Butterworth, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   EN BANC

PER CURIAM.

In order to accommodate Judge Ervin’s desire to revise his separate opinion, the court withdraws its opinion of November 15, 2002, and reissues its original opinion with the’ revised separate opinion. No motion for rehearing will be entertained.

Asserting three grounds for reversal, Sanders appeals the summary denial of his rule 3.850 motion for postconviction relief. We affirm the order under review and find it necessary to address only one of the appellant’s arguments, his argument that the trial court erred in summarily denying his claim that his trial counsel rendered ineffective assistance' by failing to request a jury instruction as to a one-step-removed lesser included offense of one of the crimes of which he was convicted. We consider this case en banc to recede from a line of authority holding that such a claim is a colorable claim under rule 3.850.

As recently explained in Hill v. State, 788 So.2d 315 (Fla. 1st DCA 2001), review denied, 807 So.2d 655 (Fla.2002), many decisions from this and other district courts of appeal hold that a defendant states a colorable basis for relief under rule 3.850 when he asserts that his trial counsel incompetently failed to request an instruction as to a one-step-removed lesser included offense of the crime of which the defendant has been convicted. The first of these decisions was Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987), decided just three years after the seminal decision on ineffective assistance of counsel, Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Although Bateson makes no reference to Strickland, we assume that the Bateson panel was aware of the Strickland decision. However, it must be acknowledged that the' precise contours of the holding in Strickland are much more clearly defined now than they were just three years after Strickland was decided.

We are confronted in the present case with an issue materially indistinguishable from the issue presented in Bateson, but the knowledge gained from eighteen years of experience in applying Strickland to postconviction ineffective assistance of counsel claims persuades us that Bateson was wrongly decided. We are now convinced that the type of claim involved in Bateson, in Hill, and in the present case cannot satisfy the prejudice prong of Strickland. Our reasons for this conclusion were expressed in Hill as follows:

A valid claim of ineffective assistance of counsel is presented when a defendant shows (1) that the acts or omissions of counsel fell below the standard of reasonably effective assistance, and (2) that there is a “reasonable probability” that, but for counsel’s ineffectiveness, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id. at 694, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674.
Although the decisional law from the district courts, beginning with the decision in Bateson, indicates that the prejudice prong of the Strickland test may be satisfied in the circumstances presented here, we confess our inability fully to embrace the rationale for these decisions. Strickland indicates that prejudice will exist in conjunction with an ineffective assistance of counsel claim only where it can be said that there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding. But Bateson seems to address the question of prejudice from a very different perspective. It contains no discussion of whether there is a reasonable probability that, given the opportunity, the jury would have declined to follow the law and granted Bateson a jury pardon. Instead, the Bateson court concluded that prejudice could be found because it was “conceivable” that defense counsel’s failure to request a jury instruction as to the lesser included offenses had deprived the appellant of the “possibility” of a jury pardon. Subsequent decisions have not articulated any other rationale for a finding of prejudice in these circumstances.
When a trial court improperly denies a defense request for an instruction as to a lesser included offense, the trial court commits error which may be corrected on direct appeal_But the appellant’s motion in the present case was not offered in conjunction with a direct appeal. It was offered in the context of a collateral proceeding. Significantly, the test for prejudicial error in conjunction with a direct appeal is very different from the test for prejudice in conjunction with a collateral claim of ineffective assistance. There are different tests because, once a conviction becomes final, a presumption of finality attaches to the conviction. See Brecht v. Abrahamson, 507 U.S. 619, 633, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); Goodwin v. State, 751 So.2d 537, 546 (Fla.1999). .Thus, as Goodwin explains, the test for prejudice on direct appeal is the harmless error test of Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), under which trial court error will result in reversal unless the prosecution can .prove “beyond a reasonable doubt” that the error did not contribute to the verdict obtained. Conversely, however, as explained in Strickland, prejudice may be found in a collateral proceeding in which ineffective assistance of counsel is claimed only upon a showing by the defendant that there is a “reasonable probability” that counsel’s deficient performance affected the outcome of the proceeding.
It is entirely reasonable that the Chapman test is not satisfied where a trial, court has improperly failed to hon- or a defense request for an instruction on a lesser included offense. Because we know that jury pardons are occasionally awarded by aberrant juries, it would be difficult for an appellate court to conclude beyond a reasonable doubt that a jury in a particular case, given the opportunity, would not disobey the law and grant a pardon. And if a trial court’s refusal to grant a defense request for an instruction as to an applicable lesser included offense were considered harmless upon a finding of guilt as to the greater offense, there would be no remedy for a trial court’s failure to comply with the law relating to the giving of instructions for lesser included offenses. A finding of prejudice in the direct appeal context is therefore appropriate both as a proper application of the Chapman test and as a necessary enforcement mechanism.
But these considerations do not apply in the context of a collateral proceeding in which ineffective assistance of counsel is claimed for failure to request an instruction as to a lesser included offense. In this content, there has been no trial court error. And, although it is “conceivable” that a jury in a given case might decline to follow the law and grant a jury pardon, this does not seem to us a reasonable probability. We recognize that a finding of reasonable probability under Strickland does not require a finding that it is more likely than not that the deficient performance of counsel affected the outcome of the proceeding. It requires only a finding that the deficient performance put the whole case in such a different light as to undermine the court’s confidence in the outcome of the proceeding. See, e.g., Robinson v. State, 770 So.2d 1167, 1171-73 (Fla.2000)(Anstead, J., specially concurring). But we have difficulty accepting the proposition that there is even a substantial possibility that a jury which has found every element of an offense proved beyond a reasonable doubt, would have, given the opportunity, ignored its own findings of fact and the trial court’s instructions on the law and found a defendant guilty of only a lesser included offense. In fact, we confess some discomfort with the proposition that members of the judiciary should even engage in such speculation. And we believe our reservations find support in the reasoning employed by the supreme court in Gragg v. State, 429 So.2d 1204 (Fla.1983).
Gragg was charged with aggravated battery by use of a firearm, aggravated assault by use of a firearm, and possession of a firearm by a convicted felon. The possession of a firearm count was severed, and Gragg proceeded to trial on the other two charges. At the conclusion of the evidence, the jury was properly instructed that it could not return a verdict of guilty as charged unless it found that Gragg had used a firearm to commit the offenses. The jury returned verdicts of guilty of the lesser included offenses of simple battery and simple assault. Claiming that the jury’s verdicts collaterally estopped the prosecution from asserting that he had possessed a firearm in conjunction with the remaining charge of possession of a firearm by a convicted felon, Gragg moved for, and was granted, a dismissal of that charge.
The supreme court ultimately concluded that the trial court had properly applied the rule of collateral estoppel (a component of the Fifth Amendment guarantee against double jeopardy) in dismissing the possession of a firearm charge. The supreme court noted that where a previous judgment of acquittal was based upon a general verdict, the rule of collateral estoppel requires a court to “examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration.” Id. at 1206 (quoting Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970)empha-sis supplied). Responding to an argument by the state that the verdicts in Gragg’s trial on the charges of aggravated battery and aggravated assault might have been the product of a jury pardon, the supreme court held that “courts should not speculate on whether the jury has reached its verdict through compassion or compromise.” Id. Instead, a court “should limit its inquiry to whether there was a factual basis, rather than an emotional basis, upon which the jury’s verdict could have rested.” Id. at 1207. The supreme court therefore held, at least in the context of a collateral estoppel analysis, that courts may not assume that “rational” juries ignore the instructions given them by trial judges and pardon defendants.
Gragg does not, however, address whether courts should, in other contexts, engage in speculation that a jury might act in a manner that is not rational. The question presented by the present case may be expressed as follows:
IN CONDUCTING A PREJUDICE ANALYSIS PURSUANT TO A POSTCONVICTION STRICKLAND V. WASHINGTON INEFFECTIVE ASSISTANCE OF COUNSEL CLAIM, MAY A COURT FIND A “REASONABLE PROBABILITY” THAT, HAD THE JURY BEEN GIVEN THE OPPORTUNITY TO RETURN A VERDICT OF GUILTY OF ONLY A LESSER INCLUDED OFFENSE, THE JURY WOULD HAVE DONE SO, THUS IGNORING ITS OWN FINDINGS OF FACT AND THE TRIAL COURT’S INSTRUCTIONS ON THE LAW?
Because speculation by a trial court in this context seems to us no less questionable than the speculation condemned by the supreme court in Gragg, and because this is a recurring issue in the courts of this state, we certify the foregoing question to the supreme court as a question of great public importance.

Hill at 317-320.

Although the supreme court denied review in Hill, and consequently did not answer the question certified therein, we are now satisfied that a proper application of Strickland mandates a negative answer to the question. The order under review is accordingly affirmed. We recede from Bateson, Hill, McClendon v. State, 765 So.2d 247 (Fla. 1st DCA 2000), Critton v. State, 668 So.2d 242 (Fla. 1st DCA 1996), and Kennedy v. State, 637 So.2d 987 (Fla. 1st DCA 1994). We also certify conflict with decisions such as Peffley v. State, 766 So.2d 418 (Fla. 4th DCA 2000), Oehling v. State, 659 So.2d 1226 (Fla. 5th DCA 1995), and Newton v. State, 527 So.2d 876 (Fla. 2d DCA 1988).

AFFIRMED.

ALLEN, C.J., BOOTH, BARFIELD, WOLF, KAHN, WEBSTER, DAVIS, VAN NORTWICK, PADOVANO, LEWIS, POLSTON and HAWKES, JJ., CONCUR. ERVIN, J., CONCURS and DISSENTS WITH OPINION, in which BENTON and BROWNING, JJ., CONCUR.

ERVIN, J.,

concurring and dissenting.

I concur in affirming the issue relating to the trial court’s submission of only part of the written instructions to the jury, because the court below correctly ruled that issue should have been raised on direct appeal. See Harvey v. Dugger, 656 So.2d 1253, 1256 (Fla.1995) (finding that issues which should have been raised on direct appeal were procedurally barred in postconviction proceeding). I also join the majority in affirming the issue regarding trial counsel’s asserted ineffective assistance by failing to object to the lower court sending a portion of written instructions to the jury, because appellant’s allegations failed to satisfy the test for ineffectiveness required by Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to the third issue, however, asserting counsel’s defective assistance by not requesting a jury instruction on a necessarily lesser-included offense, I would reverse and remand for an evidentiary hearing or the attachment of portions of the record that conclusively demonstrate the appellant is not entitled to relief, in that I consider the issue to be facially sufficient and unrefuted by the record before us. Contrary to the majority’s decision, I consider appellant’s allegation that trial counsel’s deficient performance deprived him of even the possibility of a jury pardon to be prima facie showing of prejudice.

On May 11, 1998, the appellant was charged with one count of aiding and abetting a robbery with a firearm and one count of aiding and abetting burglary while armed. He was found guilty and was sentenced to 100 months of incarceration followed by five years of probation. The court instructed the jury on the following lesser-included offenses to aiding and abetting robbery while armed with a firearm: attempt, robbery, aggravated assault with a deadly weapon, assault and theft. The lower court, however, did not instruct the jury on the lesser-included offense of robbery with a weapon, which is classified in the Florida Standard Jury Instructions in Criminal Cases (p. 386) as a category-one or necessarily lesser-included offense, and defense counsel did not object to its omission. In affirming as to this issue, the majority relies on and quotes extensively from Hill v. State, 788 So.2d 315 (Fla. 1st DCA 2001), review denied, 807 So.2d 655 (Fla.2002). It adopts the analysis advanced in Hill, and recedes from Bateson v. State, 516 So.2d 280 (Fla. 1st DCA 1987), and cases from this court specifically following it, saying that Bateson was “wrongly decided.” Ante at 505.1 disagree.

As reflected in the majority’s opinion, the Florida Supreme Court declined to review the question certified in Hill. Initially, I question the wisdom of this court rushing headlong into yet another en banc proceeding and determining an issue that the supreme court refused to address little more than one year before. I farther question the necessity of receding from a case decided 15 years ago, which, as reflected in Hill, no less than seven cases have since followed, representing all of the state’s appellate courts except the Third District. Finally, I have strong doubts that much of the language used in Hill as a basis for receding from Bateson is applicable to the instant case, because in Hill, as well as in Bateson, the jury instructions that were not given were permissive or category-two lesser-included offenses. As stated, the lesser offense which appellant claims his lawyer should have requested below was robbery with a weapon, a necessarily lesser-included offense to the charged offense of robbery with a firearm.

Unlike permissive lesser-included instructions, a trial court’s refusal to give an instruction on a necessarily lesser-included offense is per se reversible fundamental error. See Reddick v. State, 394 So.2d 417 (Fla.1981). Thus, much of the discussion in Hill regarding the Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), harmless error test, applicable to direct appeals but not to collateral proceedings, is immaterial in a case such as that now before us in which the offense is necessarily included, because if claimant’s counsel had timely requested an instruction on robbery with a weapon and the trial court had refused it, the refusal would have been reversible on appeal without any consideration of whether the error was harmless. See Harris v. State, 438 So.2d 787, 796 (Fla.1983) (“This Court has consistently held that, upon a proper request, a trial judge must give jury instructions on necessarily included lesser offenses, that a refusal of such a request constitutes fundamental error when properly preserved for appeal by timely objection ... and that the harmless error rule does not apply.”). See also Reed v. State, 837 So.2d 366, 27 Fla. L. Weekly S1045, S1046 (Fla. Dec. 19, 2002) (“all fundamental error is harmful error,” that is, prejudicial). If, however, the instruction not given over objection was permissive, a harmless error analysis applies. The court explained the distinction as follows in State v. Abreau, 363 So.2d 1063, 1064 (Fla.1978):

[I]f a defendant is charged with offense “A” of which “B” is the next immediate lesser-included offense (one step removed) and “C” is the next below “B” (two steps removed), then when the jury is instructed on “B” yet still convicts the accused of “A” it is logical to assume that the panel would not have found him guilty only of “C” (that is, would have passed over “B”), so that the failure to instruct on “C” is harmless. If, however, the jury only receives instructions on “A” and “C” and returns a conviction on “A”, the error cannot be harmless because it is impossible to determine whether the jury, if given the opportunity, would have “pardoned” the defendant to the extent of convicting him on “B” (although it may have been unwilling to make the two-step leap downward to “C”).

The second example given in Abreau is precisely what occurred in the present case. The jury received an instruction on “A,” the charged offense of robbery with a firearm, and “C,” the permissive lesser offenses of attempt, aggravated assault, etc., two steps removed from “A,” but it was not given any instruction on “B,” the necessarily lesser offense to “A.” As a result, if an objection had been timely made to such omission and a direct appeal filed, no presumption could be indulged that the error was harmless.

There is, however, a far more substantial basis for following Bateson. Although Bateson, 516 So.2d at 282, states that “it is conceivable that defense counsel’s failure to request a jury instruction as to the lesser included offenses ... deprived appellant of the possibility of a ‘jury pardon,’ ” and thus does not specifically track the “reasonable probability” test of Strickland, I do not consider the use of such language a sufficient basis to propel this court into an en banc proceeding because, in my judgment, Strickland’s reasonable probability test was never intended to exclude from its ambit jury pardons. I therefore strongly question the assumption made in Hill, and adopted by the majority, that a jury’s decision to pardon is one made irrationally, aberrantly, or in an unlawful manner.

We must assume that when Strickland was decided in 1984, the Court was aware of its earlier pertinent case law, particularly Beck v. Alabama, 447 U.S. 625, 100 S.Ct. 2382, 65 L.Ed.2d 392 (1980), in which the Court held that the death penalty could not be imposed following a jury’s verdict of guilt of a capital offense when the jury had not been permitted to consider a verdict of guilt of a lesser-included non-capital offense, i.e., felony-murder, and the evidence would have supported such a verdict. At trial, Beck’s defense was that although he participated in the robbery with a codefendant, Beck never intended for the victim to be killed. The state conceded that although the evidence supported Beck’s entitlement to an instruction on the lesser offense of felony murder, Alabama law prevented it from being given in a capital offense prosecution. Beck was convicted and sentenced to death. In vacating the conviction due to the refusal of the trial court to give the instruction, the Court noted that unreliability is introduced into every case where the jury’s decision must be all or nothing, i.e., instructions only on the offense as charged or acquittal, but the Court commented that due process of the law demanded yet another option, saying:

While we' have never held that a defendant is entitled tó a lesser included offense instruction as a matter of due process, the nearly universal acceptance of the rule in both state and federal courts establishes the value to the defendant of this procedural safeguard. That safeguard would seem to be especially important in a case such as this. For when the evidence unquestionably establishes that the defendant is guilty of a serious, violent offense — but leaves some doubt with respect to an element that would justify conviction of a capital offense — the failure to give the jury the “third option” of convicting on a lesser included offense would seem inevitably to enhance the risk of an unwarranted conviction.

Id. at 637,100 S.Ct. 2382.

The Court’s decision in Beck was the logical result of what it had previously decided in Keeble v. United States, 412 U.S. 205, 93 S.Ct. 1993, 36 L.Ed.2d 844 (1973), involving a challenge to a conviction of a federal crime. Justice Brennan, writing for the Court, explained:

[I]t is no answer to petitioner’s demand for a jury instruction bn a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction— in this context or any other — precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option — convicting the defendant of simple assault — could not have resulted in a different verdict.

Id. at 212-13, 93 S.Ct. 1993.

Based upon these statements in Beck and Keeble, it is inconceivable to me that the Court’s references in Strickland to “a lawless decisionmaker” were intended to include a jury’s intrinsic function as a dispenser of mercy. Consequently, I consider that the appellant has complied with all that Strickland demands of him at this level of the proceeding by demonstrating there is a reasonable probability that, but for counsel’s unprofessional error in failing to request an instruction on a lesser offense necessarily included in that charged, the result at trial would have been different.

The difficulty with the Sanders/Hill approach is its failure to recognize how firmly entrenched the jury pardon concept has become in Florida’s judicial system. It is a principle that had its roots in common law whereby the jury was permitted to find the defendant guilty of any lesser offense necessarily included within the offense charged. Beck, 447 U.S. at 633, 100 S.Ct. 2382. The first time the term “jury pardon” was used in Florida jurisprudence occurred when Justice Adkins commented in Bailey v. State, 224 So.2d 296, 297 (Fla.1969), that the jury always had the right to convict a defendant of any lesser degree of the crime charged, even in the absence of proof of same.

Perhaps the best summary of the precept appears in Bufford v. State, 473 So.2d 795, 796 (Fla. 5th DCA 1985), as follows:

The jury pardon concept is a well-accepted principle throughout the majority of jurisdictions. See Manning v. State, 93 So.2d 716 (Fla.1957), Goodwin v. State, 157 Fla. 751, 26 So.2d 898 (1946) (“Fundamentally, the law has never condemned a verdict for inconsistency.”); 4 Wharton’s Criminal Procedure, § 575 (C. Torcia ed.1976); Annot, 18 A.L.R.3d 259 (1968). In Florida, courts have observed that an inconsistency in verdicts is the price for investing the jury with mercy dispensing powers. See Reeder v. State, 399 So.2d 445 (Fla. 5th DCA 1981); Damon v. State, 397 So.2d 1224 (Fla. 3d DCA 1981). Further, the preservation of the jury “pardon power” is the basis for the rule that the jury must be charged on all necessarily lesser included offenses. See State v. Thomas, 362 So.2d 1348 (Fla.1978); Cannon v. State, 456 So.2d 513 (Fla. 5th DCA 1984).
In sum, the pardon power allows the jury to “ ‘temper ... justice with mercy’ if such be warranted, it can reduce the charge.” Potts v. State, 430 So.2d 900, 903 (Fla.1982), (quoting J. Milton, Paradise Lost, in 32 Great Books of the Western World, 276 (1952))[ ]. As stated by one commentator:
The laws state the duties and liabilities in black and white terms. Human actions are frequently not as clean-cut. Judges themselves sometimes undertake, in sentencing, the search for a middle ground between the absolutes of conviction and acquittal. To deny the jury’s share in this endeavor is to deny the essence of the jury’s function which is finding a solution for those occasional hard cases in which ‘law and justice do not coincide.’
Bickel, Judges and Jury — Inconsistent Verdicts in Federal Courts, 63 Harv. L.Rev. 649, 651-52 (1950). See also Tucker v. State, 417 So.2d 1006, n. 10 at 1010 (Fla. 3d DCA 1982).

Judge Hubbart otherwise explained the concept in Nurse v. State, 658 So.2d 1074, 1078 n. 2 (Fla. 3d DCA 1995), in the following terms:

We recognize that Fla.Stand.Jury Instr. (Crim.) 2.02(a) authorizes the jury to consider a lesser included offense only if it decides that the charged offense has not been proved beyond a reasonable doubt, which, as the dissent correctly points out, seems to preclude a “jury pardon;” indeed, nowhere in the standard jury instructions is the jury ever instructed that it has the power of a “pardon.” However, our law has always been somewhat schizophrenic on this point because in the jury’s de facto power to find a defendant guilty of a lesser included offense, Florida law has always recognized that the jury, in fact, has a pardon power. This is so because we routinely accept — and do not set aside based on misconduct — a verdict where the jury has, in effect, ignored this instruction and found the defendant guilty of a lesser included offense, although it may be convinced based on highly persuasive evidence [and, indeed, such evidence may be uncontradicted] that the charged offense was, in fact, committed; we call such a verdict a “jury pardon” and do not disturb it. This long-standing practice may not be intellectually satisfying to legal purists, but, on the other hand, it allows juries to do substantial justice in extenuating circumstances, something which our law has always prized.

The Sanders/Hill postulate that a jury would act irrationally if it found a defendant guilty of a lesser-included offense to that charged, regardless of the degree of proof supporting the conviction for the higher offense, overlooks the crucial nature of a jury’s province: “Whether the evidence is susceptible of inference by the jury that the defendant is guilty of a lesser offense than that charged is a critical evi-dentiary matter exclusively within the province of the jury. Fundamental trial fairness requires that a defendant being tried for robbery should be permitted to have an instruction on a lesser-included offense upon timely request.” State v. Bruns, 429 So.2d 307, 309-10 (Fla.1983) (citations omitted).

Finally, consistency in a jury’s verdict has never been demanded in the context of the jury’s right to exercise its pardon power. As explained by Professor Perkins:

“[I]f the jury decides upon a partial ‘pardon’ and returns a verdict of guilty on one count and not guilty on another, it is certainly unwise to have a procedure which requires the judge to enter verdicts of acquittal on both counts if the verdict is found to be inconsistent.
The jury’s mercy-dispensing power— or power of lenity, to use Hand’s term— necessarily includes the power to return an inconsistent verdict. Let it stand.”

Damon v. State, 397 So.2d 1224, 1228 n. 10 (Fla. 3d DCA 1981) (quoting Perkins, Dealing with the Inconsistent Verdict, 15 Criminal Law Bulletin 405 (1979)).

In conclusion, I seriously doubt that Strickland’s “reasonable probability” test was designed to be inapplicable to jury pardons. Such a function is intrinsic to a jury’s fact-finding determination, whether or not grounded on the evidence. After all, juries, like judges, have the authority to dispense mercy. To label a jury as irrational or lawless in so acting reflects a fundamental misunderstanding of a jury’s responsibilities.

      . Robbery with a firearm is a felony of the first degree, punishable by a term of years not exceeding life. § 812.13(2)(a), Fla. Stat. (1997).

      . Appellant received a guideline sentence for robbery with a firearm, which is scored as a level-nine offense, while the lesser offense of robbery with a weapon is a level-eight offense; thus, both offenses are assessed different guideline points. See § 921.012, Fla. Stat. (Supp.1998).

      . A category-two permissive lesser offense is an offense "which may or may not be included in the offense charged, depending upon, (a) the accusatory pleading, and (b) the evidence at trial.” Brown v. State, 206 So.2d 377, 383 (Fla.1968).

      . As the Great Bard wrote some 400 years ago:
      The quality of mercy is not strained,
      It droppeth as the gentle rain from heaven Upon the place beneath. It is twice blessed:
      It blesseth him that gives, and him that takes,
      'Tis mightiest in the mightiest, it becomes The thronéd monarch better than his crown:
      His sceptre shows the force of temporal power,
      The attribute to awe and majesty, Wherein doth sit the dread and fear of kings:
      But mercy is above this sceptred sway,
      It is enthroned in the hearts of kings,
      It is an attribute to God himself;
      And earthly power doth then show likest God's,
      When mercy seasons justice.
      William Shakespeare, The Merchant of Venice, act 4, sc. 1.


author: COPE, J.

text:
    Erik VALDIVIA, Eugene Weaver, Lawrence S. Collins, and LSC Ins. Agency, Inc., Appellants, v. ST. PAUL FIRE & MARINE INS. CO., Appellee.
    Nos. 3D01-3355, 3D01-3246.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Rehearing Denied June 6, 2003.
    Bernstein & Chackman and David A. Bronstein and Neil Rose, Hollywood, for appellants.
    Kubicki Draper and Angela C. Flowers, Miami, for appellee.

      Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   COPE, J.

'This is an appeal from a summary judgment determining that there was no coverage under an insurance policy issued by St. Paul Fire & Marine Insurance Co. We affirm.

St. Paul issued a liability insurance policy to Knight Bike Shop, Inc. The 1995-96 policy was effective through 12:01 a.m. on October 11,1996.

As the time for renewal approached, St. Paul advised Knight that owing to a history of theft loss, the theft coverage would not be renewed. In addition, St. Paul advised Knight that there would be a significant premium increase.

Knight’s owner, Mr. Broadly, was angry about the rate increase and policy change. He contacted the LSC Insurance Agency and purchased replacement coverage with Sphere Drake Insurance Company. See St. Paul Fire & Marine Ins. Co. v. Valdivia, 771 So.2d 1229 (Fla. 3d DCA 2000).

On October 15, 1996, the local representative for St. Paul contacted Mr. Broadly to find out his intentions regarding the St. Paul policy. Mr. Broadly indicated that he did not accept the proposed renewal by St. Paul, and had obtained coverage from another insurer. Mr. Broadly requested that the policy be returned to St. Paul and wanted to be sure that there would not be a premium charge. The St. Paul representative returned the proposed insurance policy to St. Paul with directions to cancel it flat, that is, without any charge to Knight. See Black’s Law Dictionary 197 (7th ed.1999).

In the meantime St. Paul mailed Knight a notice of cancellation of the 1996-97 policy for nonpayment. The notice said, ‘Tour policy is cancelled as of 11-11-96 for non-payment of premium. If we receive your premium payment by 11-11-96 we will rescind this notice of cancellation.” Knight did not pay the requested premium; as already stated, Mr. Broadly had requested that the renewal policy be returned to St. Paul.

There had been an accident on October 11, 1996, involving a bicycle which Knight had assembled and sold. The customer, Erik Valdivia, had been injured. Although the Sphere Drake policy was in effect at the time of the accident, the policy did not contain completed operations coverage and thus did not provide coverage for the bicycle accident.

Valdivia sued Knight and Mr. Broadly for the injuries he sustained in the bicycle accident. They entered into a settlement whereby Knight and Broadly assigned the plaintiff whatever rights they had to insurance proceeds from St. Paul. An earlier ruling determining coverage was reversed by this court. St. Paul Fire & Marine Insurance Co. v. Valdivia, 771 So.2d at 1230-31.

In subsequent proceedings, the plaintiff argued that the notice of cancellation for nonpayment quoted above had the effect of extending coverage by St. Paul for an additional month, through November 11, 1996. The trial court rejected this claim, finding no coverage, and this appeal follows.

In arguing that the notice of nonpayment had the effect of extending the St. Paul coverage for one month, the plaintiff relies on Reddick v. Globe Life and Acci dent Ins. Co., 596 So.2d 485 (Fla.1992). That decision states, in part:

The granting of an extension of time for premium payments is entirely discretionary with the insurer, and the insurer may impose such conditions as it sees fit. However, any course of conduct by an insurance company which leads the insured to believe that an extension has been granted for the payment of a premium and that in the meantime the policy will not be forfeited is a waiver of contrary provisions in the contract and the insurer is estopped to urge them.

Id. at 437 (citations omitted).

The plaintiff reasons that since the insurer’s notice specified a November 11 cancellation date, this means that the previous St. Paul policy was extended for an additional month — which would include the date of the plaintiffs accident, October 11, 1996. The plaintiff argues that under Red-dick, St. Paul must provide the additional month’s insurance coverage, but deduct the additional month’s premium from the proceeds of the policy. See id. at 438.

We are not convinced that the Reddick decision applies here. In this case the insured instructed St. Paul that it did not want the renewal policy, had obtained replacement coverage elsewhere, and did not want to be charged a premium. The notice of nonpayment crossed in the mail, but on the undisputed facts, the insured had already rejected the renewal policy entirely. Where that is the case, we do not see how the notice of nonpayment of premium can breathe new life into the rejected renewal. We thus agree with the trial court’s conclusion that there was no coverage for the October 11 accident.

Affirmed.

       Unlike the Sphere Drake policy, the St. Paul policy did have completed operations coverage.


text:
    FIRST NLC FINANCIAL SERVICES, LLC., Appellant, v. Jose A. ALTAMIRANO and Kina Altamirano, Appellees.
    No. 3D02-2668.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Rehearing and Rehearing En Banc Denied June 11, 2003.
    Smoler, Lerman, Bente & Whitebook and Carlos D. Lerman, Miami, for appellant.

      Andrew C. Barnard, Miami, for appel-lees.
    Before SCHWARTZ, C.J., SHEVIN and WELLS, JJ.
   PER CURIAM.

First NLC Financial Services, LLC., appeals a final summary judgment in favor of second-mortgagees Jose and Kina Altami-rano in First NLC’s action to establish and foreclose on an equitable lien. We reverse.

We agree with First NLC that it has adequately asserted its entitlement to an equitable lien. First NLC argued that imposition of an equitable lien was appropriate to the extent that its funds were used to satisfy the first mortgage and property tax hen on the property. Courts have not hesitated to impose equitable hens where equity deems it proper. Palm Beach Sav. & Loan Ass’n, F.S.A. v. Fishbein, 619 So.2d 267, 270 (Fla.1993). In this case, the equitable hen can be imposed to prevent unjust enrichment because First NLC paid off a debt that would otherwise have to be paid on the property. Fishbein, 619 So.2d at 271 n. 3; Radison Props., Inc. v. Flamingo Groves, Inc., 767 So.2d 587 (Fla. 4th DCA 2000). Any other holding would grant the Altamiranos a windfall to which they are not entitled.

Reversed.


author: STRINGER, Judge.

text:
    Calvin B. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1940.
    District Court of Appeal of Florida, Second District.
    April 2, 2003.
    Rehearing Denied June 17, 2003.

      Calvin B. Johnson, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Calvin B. Johnson challenges the trial court order denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm, without comment, all but one of Johnson’s claims.

Johnson alleges that he was illegally sentenced as a habitual offender for six counts of attempted murder of a law enforcement officer, because that offense is a life felony and life felonies were not subject to enhanced punishment as a habitual offender under the statute in effect at the time of the offense. We agree. See Cole v. State, 716 So.2d 325 (Fla. 2d DCA 1998). This claim is cognizable in a 3.800(a) motion. See McMaster-Wade v. State, 830 So.2d 217 (Fla. 2d DCA 2002). We therefore remand to the trial court to strike Johnson’s habitual offender designation on counts one through six. It is not necessary for Johnson to be resentenced on those counts since the offense of attempted murder of a law enforcement officer is exempt from the sentencing guidelines. See Taylor v. State, 573 So.2d 173 (Fla. 5th DCA 1991).

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and SALCINES, JJ„ Concur.


author: GRIFFIN, J.

text:
    Thaddeus Leighton HILL, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2299.
    District Court of Appeal of Florida, Fifth District.
    April 4, 2003.
    Rehearing Denied June 13, 2003.

      James B. Gibson, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   GRIFFIN, J.

Thaddeus Leighton Hill [“Hill”] appeals the lower court’s denial of his motion for post-conviction relief pursuant to Rule 3.850, Florida Rules of Criminal Procedure.

Hill was charged with sexual activity with a child by a person in familial or custodial authority. He was found guilty by a jury and, on May 25, 2000, he was sentenced by the court to ten years’ imprisonment to be followed by twenty years' sex offender probation. Hill apparently filed a direct appeal, but that appeal was voluntarily dismissed.

On October 20, 2000, Hill filed a motion for post-conviction relief seeking relief based on néwly discovered evidence. He claimed that the victim had falsely testified at trial based upon instructions given to her by the prosecutor. Attached to the motion was an affidavit signed by the victim:

At the trial of State of Florida v. Thaddeus Hill, I falsely testified regarding the events on or about April 5, 1999, at Volusia County, Florida. Thaddeus Hill did not engage in sexual activity with me on or about that date. His sexual organ did not make contact with any of my sexual organs on or about that date. My testimony stating otherwise was the result of [the prosecutor’s] informing me as to what I needed or had to say at Mr. Hill’s trial. I was told that if I testified as I did, that Mr. Hill would receive time served or probation. My testimony or statement at trial was not true. The account that I told to the jury was based on the direction of the prosecutor as to what I should say.

The trial court ordered the State to respond to this motion.

The State’s response asserted that the prosecutor denied the allegations. The response farther stated:

The State notes that the substance of the allegation now being made by [Hill] was in fact argued by [Hill’s] trial counsel to the jury in closing argument in this case ... The only additional fact presented in [Hill’s] motion is that he has now obtained an affidavit from [the victim] to support his claim. [Hill] was and is unable to dispute that he engaged in sexual activity with [the victim]; the evidence at trial conclusively established that his semen was found on her crotch and buttocks area. Hill’s position was and is that his penis did not penetrate or have union with the child’s vagina, and that the girl’s trial testimony to the contrary was the product of [the prosecutor’s] prompting. Accordingly, the State disputes the factual allegations contained in [Hill’s] motion for post-conviction relief regarding [the prosecutor].

The State requested that the matter be set for an evidentiary hearing and counsel was appointed for Hill.

An evidentiary hearing was held on January 9, 2002. Prior to any testimony and outside the presence of the witness, the State brought to the court’s attention the possible criminal exposure of the victim for perjury and suggested the court advise her of her right to counsel. The victim was then called to the stand and the court made the following statement to her:

Somebody — Mr. Hill — or, I think Mr. Hill filed a motion with the Court and he attached to the motion an affidavit that has the name of [the victim] in the affidavit. I’m not familiar with your signar ture or I don’t know if this is your affidavit or anything else, so I’m not— I’m not — I’m not telling you this is your affidavit, but the — the thing I need to tell you about and make sure you understand is that, there is a potential here that you may be about to incriminate yourself and basically confess to the commission of a felony, and before — if you want to do that, that’s perfectly okay, but I think you need to have the advice of counsel. I need to — you need to know what you’re doing before you do something that could incriminate yourself and is a felony.
Again, I’m not telling you you’ve done that or you’re about to do that. That may not be the case, but it’s potentially the case. The felony that I’m referring to is, the affidavit states that — that [the victim] gave false testimony at Mr. Hill’s trial, and basically that’s a confession to perjury, and if — again, I don’t know if this is your signature and I don’t know that you made that affidavit. I don’t know if that’s what you’re about to say on the stand, if you were questioned. But if you were to say that, it could very possibly expose you to a felony charge and up to five years in state prison as a consequence.
And so you need to understand that you do have the rights that any criminal defendant has before you do something like that. You have the right to an attorney. You have the right to — to not incriminate yourself. You can’t be required to give testimony against yourself; to basically confess to a crime, if you have, in fact, committed a crime. You — you have the right to consult with your attorney before you say anything, before you give any testimony, and I just want you to understand that you can invoke those rights, and if you want to, you can waive those rights too.
If you want to go ahead with the hearing and let the attorneys ask you questions about this piece of paper that was filed and about what testimony you might have pertinent to this hearing, we can certainly go ahead. But before we did that, I wanted to make sure you understood your right to counsel and your right to the advice of counsel.

The court then asked the victim whether she wanted to go forward with the hearing or talk to an attorney, and the victim responded that she wanted to talk to an attorney. As a result, the court entered an order appointing a special public defender for the victim and recessed until the victim had time to consult with him.

On May 8, 2002, the evidentiary hearing was continued with the public defender present on behalf of the victim. The public defender announced to the court that he had advised the victim to assert her Fifth Amendment privilege on the stand. The victim took the stand and asserted her right not to testify. The defense had no other witnesses to call. Defense counsel argued that the actions of the court and the State caused the victim not to testify even though she had previously indicated in her affidavit that she would testify, thus depriving Hill of his right to due process and entitling him to a new trial. Defense counsel also moved for compelled immunity to the victim so that he could present evidence on his motion. The court gave defense counsel time to prepare a memorandum of law in support of compelled immunity to the victim. Thereafter, the lower court entered an order denying Hill’s request for compelled immunity and denying Hill’s motion for post-conviction relief.

The threshold issue is whether the victim waived her privilege against self-incrimination by executing the affidavit recanting her trial testimony. Although we have found no case law in Florida deciding whether the filing of an affidavit can constitute a waiver of the Fifth Amendment privilege, other courts have held that it can. See Young v. Young, 316 Ark. 456, 872 S.W.2d 856 (1994) (former wife waived Fifth Amendment privilege against self-incrimination through affidavit which she filed with court); In re Vitamins Antitrust Litigation, 120 F.Supp.2d 58 (D.D.C.2000) (it is well-established that sworn affidavits are testimonial for purposes of the Fifth Amendment privilege against self-incrimination); Nutramax Laboratories, Inc. v. Twin Laboratories, Inc., 32 F.Supp.2d 331 (D.Md.1999) (officer of corporate defendant waived privilege against self-incrimination through introduction of affidavit); Luna v. Superior Court, 407 Mass. 747, 555 N.E.2d 881 (1990) (petitioner waived privilege against self-incrimination when he voluntarily submitted an affidavit, and waiver extended to his testimony at trial).

Although the victim’s execution and delivery of the affidavit can constitute a waiver, this court held in R.V.P. v. State, 395 So.2d 291 (Fla. 5th DCA 1981), that the privilege against self-incrimination is waived only if the waiver is knowing and intelligent. See also Commonwealth v. Hammond, 50 Mass.App.Ct. 171, 736 N.E.2d 398 (2000), review denied, 433 Mass. 1101, 742 N.E.2d 81 (2001) (witness’ giving of affidavit recanting aspects of his trial testimony did not amount to waiver of his privilege against self-incrimination with respect to perjury, where witness did not meet with counsel before signing affidavit.) In the present case, no evidence was taken as to whether the victim spoke with an attorney prior to signing the affidavit or understood the legal effect of execution of the affidavit. Since the victim decided not to testify after consulting with an attorney during the evidentiary hearing, it might be surmised that she did not know the. consequences of her recantation until that time. However, this fact cannot be determined with certainty. Because the right to be free from self-incrimination is a fundamental principle secured by the Fifth Amendment, waiver of the privilege will not be lightly inferred, and courts will generally indulge every reasonable presumption against finding a waiver. Jenkins v. Wessel, 780 So.2d 1006, 1008 (Fla. 4th DCA 2001) (citing State v. Spiegel, 710 So.2d 13, 16 (Fla. 3d DCA), review denied, 728 So.2d 205 (Fla.1998)). If it is determined that the victim was not aware that the execution of this affidavit was a waiver of her Fifth Amendment privilege against self-incrimination, no error was committed below.

Nor can we agree that the State acted wrongfully. The court, rather than the State, initially informed the victim that she potentially faced criminal liability based on the facts alleged in Hill’s motion; the victim was not present in the courtroom when the State suggested the court advise the victim of her right against self-incrimination.

The court informed the victim in a neutral and objective manner of her potential for perjury charges. A judge may advise a witness of his or her rights when the witness is potentially exposing himself or herself to criminal liability such as perjury. See Reese v. State, 382 So.2d 141 (Fla. 4th DCA 1980); Webb v. Texas, 409 U.S. 95, 93 S.Ct. 351, 34 L.Ed.2d 330 (1972); United States v. Smith, 997 F.2d 674 (10th Cir.1993). However, the judge may not threaten or “effectively drive the witness off the stand.” Reese, 382 at 143; see also Muhammad v. State, 782 So.2d 343, 357 (Fla.2001) (Florida appellate courts have recognized that reversible error may occur when a trial judge threatens a witness with perjury charges during his or her testimony when the witness indicates he or she is changing previous testimony); Webb, supra (lengthy admonition of witness by judge implying that judge expected witness to lie and assuring him of prosecution for perjury went beyond mere warning the witness of his right to refuse to testify and effectively drove the witness off the stand); Smith, supra (judge could advise the witness of possibility of prosecution for perjury if testimony differs from that previously given, but court may abuse its discretion by actively encouraging witness not to testify or by badgering witness to remain silent). We find the trial judge’s statements in this case to be within the realm of propriety.

Finally, the trial court was not obliged to compel the State to grant immunity to the victim. Hill relied on State v. Nessim, 587 So.2d 1844 (Fla. 4th 1991), where the court ruled that “governmental misconduct resulting in a distortion of the fact-finding process was adequate grounds for the trial court to give the state the option of granting a witness ... immunity or suffer a dismissal of the pending charges.” Id. at 1346; see also State v. Montgomery, 467 So.2d 387 (Fla. 3d DCA 1985). Here, the trial court found no basis for such relief. We accordingly remand this matter to the lower court so that the defendant can be heard on the issue of waiver. In all other respects, the appealed order is affirmed.

AFFIRMED in part; and REMANDED for further proceedings.

PLEUS and TORPY, JJ., concur.

      . The record suggests that the victim (d/o/b 12/23/82) is Hill's step-daughter.


text:
    Joseph MAGALETTI, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3074.
    District Court of Appeal of Florida, Second District.
    April 4, 2003.
    Rehearing Denied June 12, 2003.

      James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   STRINGER, Judge.

Joseph Magaletti challenges his judgment and sentence for the first-degree murder of Kathleen Leonard. He advances four arguments on appeal; we affirm, without discussion, as to three of these but write to address one — identification evidence in the form of mitochondrial DNA (mtDNA) analysis, an issue of first impression in Florida appellate courts.

On March 12, 1995, Kathleen Leonard’s employer made a missing person report to the Sarasota County Sheriffs Office after several unexplained absences and being unable to contact Ms. Leonard by phone. Her badly decomposed body was discovered in her apartment on that same day. Upon entering the apartment, investigators found her fully clothed and lying face-down on her bed. Strips of torn towels had been used to strangle her and to bind her hands behind her back. The contents of her purse were dumped out on her living room floor. Credit cards were found inside her wallet but no cash. There were no signs of forced entry. The neck ligature and wrist binding were collected and swept for trace evidence; several hairs were recovered, all of which belonged to the victim, save one. Hair comparison and mtDNA analysis later identified Magaletti as the donor of this single hair, which appeared to have been broken at some point along the shaft rather than having been pulled from its root. Also, Magalet-ti’s fingerprints were found on the inside of the victim’s door beneath the door knob.

Prior to trial, Magaletti challenged the admissibility of identification testimony, arguing that the State should not be allowed to introduce evidence of the mtDNA analysis performed on the single hair found in the victim’s binding. Specifically, he maintains that mtDNA analysis has been primarily used for genealogical studies and to identify war remains but has not been widely accepted for use in the area of forensics. Relying on the supreme court’s decision in Brim v. State, 695 So.2d 268 (Fla.1997), Magaletti argues that the method of statistical calculation used in his case does not satisfy the Frye test for new or novel scientific evidence. He further argues that the mtDNA results in this case are not rehable due to the limited number of profiles resident in the FBI’s national mtDNA database. In response the State contends that it produced sufficient evidence to establish general acceptance under Frye. The State relies on cases from other jurisdictions to argue that disputes concerning the methodological validity of scientific evidence generally go to weight and not the admissibility of evidence. See, e.g., State v. Pappas, 256 Conn. 854, 776 A.2d 1091, 1106 (2001).

For reasons which will be discussed, we find that the evidence admitted at the Frye hearing conclusively established that the method of mtDNA analysis, as well as the statistical calculations used to determine a rate of exclusion in this case, satisfy Frye. Admissibility of nucDNA Analysis in Florida

In order to test the reliability and determine the admissibility of new or novel scientific evidence, Florida courts adhere to the Frye test. Brim, 695 So.2d at 271; Hayes v. State, 660 So.2d 257, 262 (Fla.1995). Under Frye, the admission of expert testimony concerning a new scientific principle involves a four-step inquiry which requires the trial court to determine whether:

(1) [the] expert testimony will assist the jury in understanding the evidence or in determining a fact in issue; (2) the expert’s testimony is based on a scientific principle or discovery that is “sufficiently established to have gained acceptance in the particular field in which it belongs” under the Frye test; and (8) the particular expert witness is qualified to present opinion evidence on the subject in issue. If the answer to the first three questions is in the affirmative, the trial judge may proceed to step four and allow the expert to present an opinion to the jury.

Hayes, 660 So.2d at 262 (quoting Ramirez v. State, 651 So.2d 1164, 1166 (Fla.1995)). in the context of DNA cases, the supreme court has frequently observed that Frye determinations require two levels of analysis. The first involves principles of molecular biology and chemistry and results in a qualitative determination which “simply indicate[s] that two DNA samples look the same.” Murray v. State, 692 So.2d 157, 162 (Fla.1997); Brim, 695 So.2d at 269. However, as to this initial inquiry, the supreme court has concluded that “to say that two patterns match, without providing any scientifically valid estimate ... of the frequency with which such matches might occur by chance, is meaningless.” Brim, 695 So.2d at 270. Therefore, on the second level of analysis, “experts [are required to] provide quantitative, rather than qualitative, estimates of the frequency of an incriminating profile [occurring] in one or more races.” Id. This quantitative estimate assists the trier of fact in understanding the probative value or significance of a match, and Florida law requires a separate Frye analysis. Id. We are guided by the supreme court’s analysis in Brim in considering whether the statistical calculations used during the mtDNA analysis in the present case satisfy Frye.

The defendant in Brim challenged his 1993 conviction for several offenses, including two counts of sexual battery. NucD-NA evidence was the focus of the State’s case, and prior to trial Brim sought to exclude it. Brim alleged that the State’s method of calculating frequency was not generally accepted within the relevant scientific community, and he produced evidence of the use of an alternative method. In Brim’s 1995 appeal, this court found that the DNA evidence was properly admitted because the Frye standard does not limit the “admissible deductions that can be made from reliable scientific evidence to a single ‘generally accepted’ deduction or theory.” Brim v. State, 654 So.2d 184, 186 (Fla. 2d DCA 1995). The supreme court later disapproved of this court’s decision and held that the statistical presentation of the evidence requires a separate Frye analysis. Brim, 695 So.2d at 270.

The court noted that the record in Brim established that the scientific community was split as to the proper approach for reporting DNA test results. At that time, the leading authority on DNA analysis, the National Research Council, recommended the use of a “modified ceiling principle” to calculate population frequency. However, the record was not clear as to which statistical method was used in Brim’s case or whether that method satisfied Frye. Therefore, the supreme court found it necessary to remand the case for an evidentia-ry hearing to clarify the exact method of statistical calculation used in that case. Id. at 275.

In contrast, evidence adduced at the Frye hearing below established that the scientific method of mtDNA analysis, as well as the method of statistical calculation used in the present case, are generally accepted by forensic scientists throughout the country.

MtDNA Analysis in this Case

While the admissibility of mtDNA analysis has been addressed in Florida trial courts as early as 1998, our appellate courts have not yet weighed in on the issue in light of Frye. This court reviews a trial court’s Frye determination de novo. Brim, 695 So.2d at 274. Under Frye, the trial court in this case had to determine that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community. Contrary to the State’s assertions, the court was required to treat the Frye inquiry as a question of admissibility, rather than evidentiary weight to be considered by the jury. Id. at 271. As the proponent of mtDNA analysis, the State had the burden of proving general acceptance by a preponderance of the evidence. Id.

At the Frye hearing in this case, the State produced the testimony of Meghan Clement, technical director for the Forensic Identity Department of Laboratory Corporation of America (Labcorp). The State also introduced an article which discusses the use of mtDNA profiling in forensic investigations: M.M. Holland & T.J. Parsons, Mitochondrial DNA Sequence Analysis — Validation and Use for Forensic Casework, 11 Forensic Science Review 22 (1999). Ms. Clement was familiar with Holland and Parsons’ article and testified that it has been peer reviewed and is considered authoritative in the field of mtDNA profiling. These commentators note that “mtDNA analysis has become a validated, robust, rehable, and well established forensic DNA profiling system.” Id. at 23.

MtDNA analysis has two primary advantages over nucDNA: mtDNA requires smaller samples than are necessary for nucDNA analysis, and small amounts of mtDNA sufficient for analysis may be recovered from highly degraded samples which are old or have been exposed to extreme conditions, e.g., heat or cold. Because nucDNA is not present in the human hair shaft, only in the follicle, mtDNA analysis is the method used in cases such as this where there is no root or follicle tissue attached to the subject hair. Id. Ms. Clement testified that mtDNA analysis is widely used in forensics and has been accepted as rehable by the Federal Bureau of Investigation (FBI), the Armed Forces Institute of Pathology, and medical examiners’ labs in New York and Illinois. Internationally, mtDNA analysis is being used in Sweden, Germany, and the United Kingdom. Ms. Clement further testified that a uniform process of mtDNA analysis has been validated for use in Labcorp facilities. This testimony, which was corroborated by Holland and Parsons’ article, established general use of mtDNA analysis in the area of forensic science.

After responding to the State’s questions regarding the history and present use of mtDNA analysis, Ms. Clements gave a step-by-step description of the process. The preliminary steps of nucDNA and mtDNA analysis (extraction, replication, and sequencing) are essentially identical with the exception of the source of the genetic material. These methodologies have been scientifically validated and used by researchers in nucDNA analysis since the 1970s and 1980s. The Florida Supreme Court first declared evidence of nucDNA analysis admissible in the trial courts of this state in Hayes v. State, 660 So.2d 267 (Fla.1995).

Once the preliminary steps have been completed, a technician may then compare the unknown sample to the known sample to determine whether there is a match. If there is a match, the matching sequence is then compared to profiles in the FBI’s mtDNA database to determine whether the sequence appears in the database, and a simple “counting method” is used to indicate the number of times the sequence appears in the database. There are presently 4142 profiles in the FBI’s mtDNA database. For example, if the subject sequence appears in the database twice, the lab will report that two matches were observed out of 4142 profiles currently in the database. Because mtDNA is maternally inherited and because all matrilineal decedents will share the same mtDNA, traditional random match probability used in nucDNA analysis cannot be calculated. Instead, the counting method is used, and a ninety-five percent confidence interval is applied. If, as in this case, the matching sequence derived from the mtDNA analysis is not found in the FBI database, an exclusionary rate is calculated to say that “X” percent of the population may be excluded as potential donors of the unknown sample.

With regard to Magaletti’s objections to the number of profiles in the FBI database (4142), Ms. Clement testified that this number, albeit limited, does not affect the validity of test results. Her testimony is consistent with Holland and Parsons’ observations. See Holland & Parsons, Mitochondrial DNA Sequence Analysis, 11 Forensic Sci. Rev. at 32. Their article, which was published in 1999, indicates that the database was even more limited at that time and contained only 1657 profiles. Id. at 29. In spite of this limited number of profiles in the database at that time, these commentators describe mtDNA analysis as a “robust” and “reliable” method of DNA profiling. Id. at 23. Moreover, they note that the counting method is the only method of analysis reported in the United States. Id. at 31. And, while they acknowledge that labs in the United States report the results of mtDNA analysis using the counting method exclusively, they suggest that when used by itself, this is “a poor method of estimating the frequency of rare mtDNA types.” Id. at 30. They also note, however, that the reliability of results is increased by going beyond the counting method to provide a more valid statement regarding frequency. Id. at 32. This may be done by applying a ninety-five percent confidence interval based on the number of times a sequence occurs in the database. Id. at 32.

Consistent with the authors’ suggestions, Ms. Clement testified that the results in the present case were obtained by use of this statistical methodology. And, by applying a ninety-five percent confidence interval, the mtDNA analysis conducted in this case determined an exclusionary rate of 99.93 percent. In other words, the results indicate that 99.93 percent of people randomly selected would not match the unknown hair sample found in the victim’s bindings. By providing an explanation of the analytical process which resulted in the genetic match between the hair found in the victim’s bindings and Magaletti’s hair, and then going further to explain the statistical significance of the match, the expert testimony provided in this case assisted the jury in determining a critical fact issue — identity. See Hayes, 660 So.2d at 262.

Unlike the method of statistical calculation challenged in Brim, the State established that the counting method is the only method of reporting used by analysts in the United States. As the supreme court noted in Brim, “general acceptance” under the Frye standard can be established if use of a technique is supported by a clear majority of the community. 695 So.2d at 272. Having established that the counting method is used exclusively in this country, the State amply satisfied its burden of proving general acceptance by a preponderance of the evidence. Furthermore, in view of Ms. Clement’s testimony and Holland and Parsons’ commentary on the method used to calculate an exclusionary rate, the State also established general acceptance of the statistical methodology used in this case.

For the foregoing reasons, we find that the trial court properly admitted evidence of mtDNA analysis in this case.

Affirmed.

SALCINES and DAVIS, JJ., Concur.

      . Magaletti also contends (1) that the State failed to produce sufficient evidence to support his conviction, (2) that the trial court erred in admitting evidence of his cocaine use, and (3) that the trial court erred in admitting evidence of hair comparison.

      . Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

      . There are essentially two forms of DNA. DNA which resides in the nucleus of cells is termed nuclear DNA (nucDNA). The type of DNA examined in the present case came from organelles found outside of the cell nucleus called mitochondria. This DNA is called mitochondrial DNA (mtDNA). M.M. Holland & TJ. Parsons, Mitochondrial DNA Sequence Analysis — Validation and Use for Forensic Casework, 11 Forensic Science Review 22, 23 (1999).

      . See State v. Crow, No. 96-1156 *4 (Fla. 18th Cir.Ct. May 14, 1998) (finding mtDNA analysis inadmissible because the "database from which the experts wish to refer is insufficient to provide reliable statistical conclusions,” also finding that the counting method of quantitative analysis used for mtDNA test results "fails to provide a meaningful comparison to assist, rather than confuse, the jury”).

      . Validation studies are conducted during the development of a new procedure or technology in order to facilitate uniformity, monitor consistency, and to ensure that results are reproducible. The Technical Working Group on DNA Analysis Methods (TWGDAM), sponsored by the Federal Bureau of Investigation, has developed guidelines for the validation of DNA profiling systems, including mtDNA analysis. M.M. Holland & TJ. Parsons, Mito

        chondrial DNA Sequence Analysis — Validation and Use for Forensic Casework, 11 Forensic Science Review 22, 34 (1999).

      . There was no testimony characterizing Ma-galetti’s mtDNA sequence as rare.

      . In determining the admissibility of mtDNA analysis in the present case, we join several jurisdictions which have accepted this method of identification as a reliable forensic tool to assist in identifying and excluding suspects during criminal investigations and trials. See, e.g., People v. Klinger, 185 Misc.2d 574, 713 N.Y.S.2d 823 (N.Y.Co.Ct.2000); State v. Smith, 100 Wash.App. 1064, 2000 WL 688180, review denied, 142 Wash.2d 1012, 16 P.3d 1267 (2000). MtDNA analysis has likewise been deemed admissible in jurisdictions which adhere to the federal standard pronounced in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993), wherein the court held that Federal Rule of Evidence 702 supersedes Frye. See Fed.R.Evid. 702 (enumerating criteria for determining the admissibility of scientific evidence based on reliability rather than general acceptance within the scientific community); State v. Pappas, 256 Conn. 854, 776 A.2d 1091 (2001); State v. Hammons, 2002 WL 484645 (Del.Super.Ct. Mar.28, 2002); State v. Scott, 1999 WL 547460 (Tenn.Crim.App. July 28, 1999), reversed in part on other grounds, 33 S.W.3d 746 (Tenn.2000) (reversing for new trial based on trial court's failure to approve DNA expert assistance for the defense).


text:
    Henry JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1051.
    District Court of Appeal of Florida, Fifth District.
    April 15, 2003.
    Rehearing Denied June 10, 2003.
    Henry Jones, Sneads, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Stephens v. State, 823 So.2d 180 (Fla. 1st DCA 2002); McElrath v. State, 802 So.2d 518 (Fla. 5th DCA 2001).

SHARP, W., GRIFFIN and SAWAYA, JJ., concur.