author: BASCHAB, Judge. COBB, Judge,

text:
    Sammy Earl MOORE v. ALABAMA DEPARTMENT OF CORRECTIONS.
    CR-02-1977.
    Court of Criminal Appeals of Alabama.
    Jan. 6, 2004.
    Sammy Earl Moore, pro se.
    Andrew W. Redd, gen. counsel, and Jane LeCroy Brannan, asst. gen. counsel, Department of Corrections.
   BASCHAB, Judge.

AFFIRMED BY UNPUBLISHED MEMORANDUM.

McMILLAN, P.J., and WISE, J., concur; COBB, J., concurs in the result, with opinion; SHAW, J., concurs in the result.

COBB, Judge,

concurring in the result.

I agree that the judgment in this case is due to be affirmed because the hearing officer’s decision, to order Sammy Earl Moore’s case to be reviewed to determine whether a more restricted custody status should be imposed did not deprive Moore of a liberty interest and, therefore, did not trigger the due process protections of Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). I do not agree with the language in the majority’s memorandum that speculates that Moore’s removal from the Childersburg Community Work Center “could have been a temporary removal pending the outcome of a reclassification hearing.” Unlike the case of Thomas v. State, 867 So.2d 367 (Ala.Crim.App.2003), cited by the majority, in which the record reflected that the appellant’s removal was temporary, pending the outcome of a reclassification hearing, the record in this case is not so clear. I do not think that it is within the province of this Court to speculate about the reasons for a prisoner’s removal when the record before us is unclear.


source: Caselaw Access Project

author: BASCHAB, Judge.

license: Public Domain

text:
    Joseph Anthony CARR v. STATE of Alabama.
    CR-02-2192.
    Court of Criminal Appeals of Alabama.
    Jan. 6, 2004.
    Joseph Anthony Carr, pro se.
    William H. Pryor, atty. gen., and Cecil G. Brendle, Jr., asst. atty. gen., for appel-lee.
   BASCHAB, Judge.

On October 17, 1989, the appellant, Joseph Anthony Carr, was convicted of first-degree assault in case number CC-89-505. On November 20, 1989, the trial court sentenced him to serve a term of twenty years in prison. On December 14, 1989, the appellant pled guilty to first-degree sodomy in case number CC-89-504, and the trial court sentenced him to serve a term of twenty-five years in prison. On April 16, 2003, the appellant filed a postconviction petition, challenging his convictions. After the State responded, the circuit court summarily dismissed the petition. This appeal followed.

In his petition, the appellant challenges his first-degree sodomy conviction in case number CC-89-504 and his first-degree assault conviction in case number CC-89-

505. Furthermore, in its order dismissing the petition, the circuit court addressed the merits of the petition. Rule 32.1, Ala. R.Crim. P., provides, in pertinent part:

“A petition that challenges multiple judgments entered in more than a single trial or guilty-plea proceeding shall be dismissed without prejudice.”

Because the appellant challenged, in a single petition, multiple judgments that had been entered in multiple proceedings, the circuit court should have dismissed the petition without prejudice rather than ruling on the merits of the petition. See Lucas v. State, 855 So.2d 1128 (Ala.Crim.App.2003). Accordingly, we reverse the circuit court’s judgment and remand this case for the circuit court to set aside its order dismissing the appellant’s petition on the merits and to dismiss the petition without prejudice.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, SHAW, and WISE, JJ., concur.

      . The appellant originally filed his petition in the Bullock Circuit Court and styled it as a petition for a writ of habeas corpus. However, the Bullock Circuit Court transferred it to the Houston Circuit Court to be treated as a Rule 32 petition.


author: PER CURIAM.

text:
    AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.853(d)(1)(A) (POSTCONVICTION DNA TESTING).
    No. SC03-1630.
    Supreme Court of Florida.
    Sept. 15, 2004.
    Olin Wilson Shinholser, Chair, and How-ardene Garrett, Bartow, FL, and Ivy Ginsberg, Miami, FL, on behalf of The Florida Bar Criminal Procedure Rules Committee; and John F. Harkness, Jr., Executive Director, Tallahassee, FL, on behalf of The Florida Bar, for Petitioner.
    Carolyn M. Snurkowski, Assistant Deputy Attorney General, Tallahassee, FL, for Respondent.
    Talbort D’Alemberte, Florida State University School of Law and Jennifer Green-berg, Florida Innocence Initiative, Inc., Tallahassee, FL, and Catherine Areabas-eio, Nova Southeastern University Shepard Broad Law Center, Fort Lauderdale, FL; Janet Reno, Miami, FL; Honorable O.H. Eaton, Jr., Chair, Sanford, Florida and Honorable Thomas H. Bateman, Tallahassee, FL, on behalf of Criminal Court Steering Committee; Honorable Nancy Daniels, President, Tallahassee, FL, and John E. Morrison, Assistant Public Defender on behalf of the Florida Public Defender Association, Inc., Miami, FL; Robert Augustus Harper and Michael Robert Ufferman of Robert Augustus Harper Law Firm, P.A., on behalf of the Florida Association of Criminal Defense Lawyers, The Florida Innocence Project and the Florida Innocence Initiative, Tallahassee, FL; and James T. Miller, Chair, Amicus Curiae Committee, Jacksonville, FL, on behalf of The Florida Association of Criminal Defense Lawyers, Individuals who filed comments with this Court.
   PER CURIAM.

The Florida Bar Criminal Procedure Rules Committee has filed an emergency petition to amend Florida Rule of Criminal Procedure 3.853, Motion for Postconviction DNA Testing. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.130(e).

BACKGROUND

The history of rule 3.853 is succinctly set forth as follows in Amendment to Florida Rules of Criminal Procedure Creating Rule S.853 (DNA Testing), 807 So.2d 633, 633-34 (Fla.2001) (hereinafter cited as Amendment):

In February 2001, the Criminal Rules Committee filed an emergency petition asking this Court to adopt new rule 3.853 providing for postconviction DNA testing. During the 2001 regular session, and after the Criminal Rules Committee filed its original petition, the Legislature passed DNA legislation, which, among other things, provides for post-sentencing DNA testing. See Fla. CS for CS for SB 366 (2001), ch.2001-97, Laws of Fla. (creating §§ 925.11 and 943.3241 and amending § 943.325, Fla. Stat.). After considering the proposed rule, which varied from the new legislation in several respects, and hearing argument, the Court returned the matter to the Criminal Rules Committee for expedited reconsideration in light of the new legislation. Amendment to Florida Rules of Criminal Procedure Creating Rule 3.853 (DNA testing), No. SC01-363 (unpublished order) (Fla. June 6, 2001).

In Amendment, the Court adopted new rule 3.853 which, among other things, provided the following timeline for filing a postconvietion motion seeking DNA testing:

The motion for postconviction DNA testing must be filed:
(A) Within 2 years following the date that the judgment and sentence in the case became final if no direct appeal was taken; within 2 years following the date the conviction was affirmed on direct appeal if an appeal was taken; within 2 years following the date collateral counsel was appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case in which the death penalty was imposed; or by October 1, 2003, whichever occurs later....

Fla. R.Crim. P. 3.853(d)(1)(A).

In the instant petition, the committee proposed extending the October 1, 2003, deadline set forth in rule 3.853 until October 1, 2004. Subsequently, an emergency writ petition was filed raising constitutional challenges to the October 1, 2003, statutory deadline set forth in section 925.11, Florida Statutes (2003), in addition to other provisions of the statute. See Amendments to Florida Rule of Criminal Procedure 8.853(d)(1)(A) (Postconviction DNA Testing), 857 So.2d 190 (Fla.2003). The Court consolidated the cases for oral argument and invited comments in the rules case. See id. The committee’s proposal was also published in the October 15, 2003, edition of The Florida Bar News. Several comments were received, to which the committee responded.

On May 20, 2004, Governor Jeb Bush signed into law legislation that extended the DNA testing deadline set forth in section 925.11, Florida Statutes, as follows:

(b) Except as provided in subpara-graph 2., a petition for postsentencing DNA testing may be filed or considered:
1. Within 4 2 years following the date that the judgment and sentence in the case becomes final if no direct appeal is taken, within 4 2 years following the date that the conviction is affirmed on direct appeal if an appeal is taken, within 4 2 years following the date that collateral counsel is appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case, or by October 1, 2005 2003, whichever occurs later; or
2. At any time if the facts on which the petition is predicated were unknown to the petitioner or the petitioner’s attorney and could not have been ascertained by the exercise of due diligence.

Ch. 2004-67, § 1, Laws of Fla. The effective date of the legislation operated retroactively to October 1, 2003. See Ch. 2004-67, § 2, Laws of Fla.

ANALYSIS

After considering the comments filed with the Court and presented at oral argument and reviewing the recently enacted legislation, we amend rule 3.853(d)(1)(A) to extend the deadline from October 1, 2003, to October 1, 2005. Further, to make the rule consistent with section 925.11, Florida Statutes, we amend rule 3.853(d)(1)(A) to increase the amount of time for a defendant who is not subject to the October 1, 2005, deadline to petition for postsentenc-ing DNA testing from two to four years.

Accordingly, we amend Florida Rule of Criminal Procedure 3.853 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. We thank the committee, those individuals who filed comments with this Court, and all who participated in oral argument. The amendments shall become effective immediately.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

RULE 3.853. MOTION FOR POST-CONVICTION DNA TESTING

(a) Purpose. This rule provides procedures for obtaining DNA (deoxyribonucleic acid) testing under section 925.11, Florida Statutes.

(b) Contents of Motion. The motion for postconviction DNA testing must be under oath and must include the following:

(1) a statement of the facts relied on in support of the motion, including a description of the physical evidence containing DNA to be tested and, if known, the present location or last known location of the evidence and how it originally was obtained;

(2) a statement that the evidence was not tested previously for DNA, or a statement that the results of previous DNA testing were inconclusive and that subsequent scientific developments in DNA testing techniques likely would produce a definitive result;

(3) a statement that the movant is innocent and how the DNA testing requested by the motion will exonerate the movant of the crime for which the movant was sentenced, or a statement how the DNA testing will mitigate the sentence received by the movant for that crime;

(4) a statement that identification of the movant is a genuinely disputed issue in the case and why it is an issue or an explanation of how the DNA evidence would either exonerate the defendant or mitigate the sentence that the movant received;

(5) a statement of any other facts relevant to the motion; and

(6) a certificate that a copy of the motion has been served on the prosecuting authority.

(c)Procedure.

(1) On receipt of the motion, the clerk of the court shall file it and deliver the court file to the assigned judge.

(2) The court shall review the motion and deny it if it is insufficient. If the motion is sufficient, the prosecuting authority shall be ordered to respond to the motion within 30 days or such other time as may be ordered by the court.

(3) On receipt of the response of the prosecuting authority, the court shall review the response and enter an order on the merits of the motion or set the motion for hearing.

(4) In the event that the motion shall proceed to a hearing, the court may appoint counsel to assist the movant if the court determines that assistance of counsel is necessary and on making the appropriate finding of indigence.

(5) The court shall make the following findings when ruling on the motion:

(A) Whether it has been shown that physical evidence that may contain DNA still exists.
(B) Whether the results of DNA testing of that physical evidence likely would be admissible at trial and whether there exists reliable proof to establish that the evidence containing the tested DNA is authentic and would be admissible at a future hearing.
(C) Whether there is a reasonable probability that the movant would have been acquitted or would have received a lesser sentence if the DNA evidence had been admitted at trial.

(6) If the court orders DNA testing of the physical evidence, the cost of the testing may be assessed against the movant, unless the movant is indigent. If the mov-ant is indigent, the state shall bear the cost of the DNA testing ordered by the court.

(7) The court-ordered DNA testing shall be ordered to be conducted by the Department of Law Enforcement or its designee, as provided by statute. However, the court, on a showing of good cause, may order testing by another laboratory or agency certified by the American Society of Crime Laboratory Directors or the National Forensic Science Training Center when requested by a movant who can bear the cost of such testing.

(8) The results of the DNA testing ordered by the court shall be provided in writing to the court, the movant, and the prosecuting authority.

(d)Time Limitations.

(1) The motion for postconviction DNA testing must be filed:

(A) Within 24 years following the date that the judgment and sentence in the ease became final if no direct appeal was taken; within 24 years following the date the conviction was affirmed on direct appeal if an appeal was taken; within 24 years following the date collateral counsel was appointed or retained subsequent to the conviction being affirmed on direct appeal in a capital case in which the death penalty was imposed; or by October 1, 20025, whichever occurs later; or
(B) At any time, if the facts on which the petition is predicated were unknown to the petitioner or the movant’s attorney and could not have been ascertained by the exercise of due diligence.

(2) A motion to vacate filed under rule 3.850 or a motion for postconviction or collateral relief filed under rule 3.851, which is based solely on the results of the court-ordered DNA testing obtained under this rule, shall be treated as raising a claim of newly-discovered evidence and the time periods set forth in rules 3.850 and 3.851 shall commence on the date that the written test results are provided to the court, the movant, and the prosecuting authority pursuant to subsection (c)(8).

(e) Rehearing. The movant may file a motion for rehearing of any order denying relief within 15 days after service of the order denying relief. The time for filing an appeal shall be tolled until an order on the motion for rehearing has been entered.

(f) Appeal. An appeal may be taken by any adversely affected party within 30 days from the date the order on the motion is rendered. All orders denying relief must include a statement that the movant has the right to appeal within 30 days after the order denying relief is rendered.

      . The rule also provided an exception from the two-year time limit for newly discovered evidence. See Fla. R.Crim. P. 3.853(d)(1)(B).


author: PER CURIAM. PER CURIAM.

text:
    Erick RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4985.
    District Court of Appeal of Florida, Fourth District.
    July 23, 2003.
    Opinion Granting Rehearing in Part Jan. 14, 2004.

      Erick Richardson, Raiford, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Erick Richardson appeals the summary denial of his motion for postconviction relief, which raised three claims. Richardson was convicted of robbery and sentenced as a habitual felony offender to twenty years in prison. Richardson’s claim that the predicate convictions used to declare him a habitual felony offender were not sequential has merit. We reverse.

To establish Richardson as a habitual felony offender, the State relied on prior convictions in case number 98-4322, for possession of cocaine, and 93-15462, for grand theft. The record shows that, although a conviction in the possession case was entered on April 14, 1993, sentencing was stayed and withheld, and Richardson was placed on probation. Richardson was convicted on the grand theft charge on September 23, 1993. On that same day, the court found Richardson in violation of probation on the possession case and sentences were entered- on both charges. ■

The sequential conviction requirement found in the habitual offender statute requires that prior felonies must have “resulted in a conviction sentenced separately prior to the current offense and sentenced separately from, any other felony conviction that is to be counted as a prior felony.” § 775.084(5), Fla. Stat. (2002)(empha-sis- added). The supreme court, in Bover v. State, 797 So.2d 1246, 1250 (Fla.2001), reviewed the sequential conviction requirement and held that:

The habitual offender statute, section 775.084(5), specifically provides that the court must have imposed sentence for the two prior convictions separately from each other. Thus, although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding.

Thus, a more accurate term for the requirement would be the sequential sentencing proceeding requirement.

In this case, the State argues that Richardson was originally “sentenced to probation” on the possession charge and subsequently “resentenced” after a finding that probation had been violated. This argument is expressly contrary to the law.

A sentence and probation are distinct concepts. See Landeverde v. State, 769 So.2d 457, 462 (Fla. 4th DCA 2000). When a defendant is placed on probation, the court must stay and withhold the imposition of sentence regardless of whether adjudication of guilt is' withheld. See § 948.01(2), Fla. Stat.; Fla. R.Crim. P. 3.790(a). Richardson was sentenced on the possession charge for the first time after the finding of a violation of probation. See, e.g., Williams v. State, 566 So.2d 299, 302 (Fla. 1st DCA 1990). Thus, the sentences for the predicate convictions used to classify Richardson as a habitual felony-offender were entered on the same day. If entered in the same proceeding, the sequential conviction requirement, as interpreted by. our supreme court in Bover, would be violated.

The record attached to the order of denial does not demonstrate that the sentences for the predicate offenses were entered in separate proceedings. Accordingly, the order summarily denying this claim is reversed and the matter is remanded for further proceedings. See Ford v. State, 814 So.2d 1121, 1122 (Fla. 4th DCA 2002)(holding remand for resen-tencing was required on ground that appellate court could not discern from the record whether predicate convictions were truly sequential as resulting from separate sentencing proceedings).

On remand, because Richardson failed to object to his classification as a habitual felony offender at the time of sentencing, the State shall be permitted to introduce evidence of other qualifying convictions should any exist. See Cameron v. State, 807 So.2d 746, 747 (Fla. 4th DCA 2002).

REVERSED and REMANDED.

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

The State’s motion for rehearing is granted in part. We supplement the opinion to address the State’s argument on rehearing and to certify conflict with McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003).

To recap, Richardson was convicted of robbery and sentenced as a habitual offender to twenty years in prison. Richardson claimed that the predicate convictions used to declare him a habitual offender were not sequential. To establish Richardson as a habitual felony offender, the State relied on prior convictions in case numbers 93-4322, for possession of cocaine, and 93-15462, for grand theft. The record shows that although a conviction in the possession case was entered on April 14, 1993, Richardson was placed on probation. Richardson was convicted on the grand theft charge on September 23, 1993. On that same day, September 23, the court found Richardson in violation of probation on the possession case and sentences were entered on both charges. We reversed and remanded, finding that the possession of cocaine and grand theft convictions used to declare him a habitual felony offender would not have been “sequential” if the sentences were imposed on the same day at the same sentencing proceeding since he was not “sentenced” on the possession charge until found in violation of probation.

The State contends this court overlooked a dispositive point of law in the previous opinion because the legislature has provided that the placing of a defendant on probation constitutes a “prior conviction” under the habitual offender statute. Section 775.084(2), Florida Statutes (2002), provides:

For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.

Accordingly, the State maintains that the date Richardson was placed on probation should be considered the date of sentencing under the “sequential sentencing proceeding” requirement of section 775.084(5), which provides:

In order to be counted as a prior felony for purposes of sentencing under this section, the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.

The State argues that this case is controlled by the plain meaning of section 775.084(2), that the holding in the instant case deprives this subsection of meaning and will lead to absurd results, and that this court should apply a rule of statutory construction whereby subsections two and five are read together to achieve a consistent whole.

We find that subsections two and five are ambiguous when read together, but are not inconsistent. The State’s reading is not necessary to give both subsections meaning. Due process requires definiteness in criminal statutes, and criminal statutes must be strictly construed when their meaning is indefinite. Because the language of these subsections is indefinite and susceptible of differing constructions, the rule of lenity applies; the statute must be construed in the manner most favorable to the accused. See § 775.021(1), Fla. Stat. (2002); Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991).

We hold that subsection five imposes a distinct requirement from subsection two. In fact, subsection five begins, “[i]n order to be counted as a prior felony for purposes of sentencing under this section.” A strict construction of this provision compels us to find that the imperative of this subsection, that “the felony must have re-suited in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony,” applies to any conviction to be counted as a predicate offense under section 775.084.

This restriction modifies subsection two. The placing of a person on community control or probation shall be counted as a prior conviction regardless of whether adjudication is initially withheld; however, such a prior conviction must comply with the “sequential sentencing proceeding” requirement of subsection five. We again reject the State’s argument that the placing of a person on probation serves as “senténcing” for purposes of this section.

This court has not directly addressed this issue before, but several cases seem to implicitly recognize this conclusion. See Ford v. State, 814 So.2d 1121 (Fla. 4th DCA 2002); see also Edison v. State, 848 So.2d 498 (Fla. 2d DCA 2003); May v. State, 713 So.2d 1087 (Fla. 2d DCA 1998). But see Render v. State, 742 So.2d 503 (Fla. 3d DCA 1999).

We acknowledge that revocation of probation requires adjudication of guilt. See § 948.06(1), Fla. Stat. (2002). This does not render subsection two meaningless or compel the reading-the State suggests. If, for example, a person is adjudicated guilty upon revocation of probation and simultaneously adjudicated guilty of a new offense, the VOP conviction shall be treated as a “prior” conviction for habitual-ization on the new offense as long as sentencing for the VOP occurs in a separate proceeding before sentencing for the new offense. This gives meaning to both subsections. Based on subsection two, the VOP conviction shall be treated as a “pri- or” offense even though both adjudications occurred at the same time.

Subsection two addresses the “priorness” of the adjudication of guilt upon revocation of probation. The initial offense is considered “prior” although adjudication may occur contemporaneously or even subsequent to the conviction on the new offense. Subsection five provides the independent requirement that sentencing on the VOP occur in a separate proceeding prior to sentencing on the felony “to be sentenced” and separate from any other felony conviction that is to be counted as a prior felony.

We note that in McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003), the court reached the opposite conclusion and held that the imposition of probation was a “sentence” for purposes of the sequential sentencing proceeding requirement in the habitual felony offender statute. There, the court stated:

When it enacted the habitual felony offender statute, the legislature intended that once a defendant had twice been convicted with sanctions the third conviction would be enhanced. We find that a sentence, as referred to in section 775.084, includes the sanction of probation.

Id. at 808. The court then certified conflict with our initial opinion in this case, Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003). We certify conflict with McCall.

The remand instructions contained in our initial opinion remain in effect.

STEVENSON, SHAHOOD and HAZOURI, JJ., concur.

      . Such a reading would contradict the plain language of the probation statute and a plethora of precedent. See § 948.01(2), Fla. Stat. (2002); State v. Summers, 642 So.2d 742, 744 (Fla.1994); Villery v. Fla. Parole & Prob. Comm’n, 396 So.2d 1107 (Fla.1980); Landeverde v. State, 769 So.2d 457, 462 (Fla. 4th DCA 2000); Russell v. State, 676 So.2d 1026 (Fla. 3d DCA 1996); Addison v. State, 452 So.2d 955 (Fla. 2d DCA 1984); Loeb v. State, 387 So.2d 433 (Fla. 3d DCA 1980).

      . This reading is consistent with the original drafting of subsection two, which reads:
      Under this section a person whose guilt of the commission of a felony under Florida law has been legally established and has been granted probation without an adjudication of guilt and who, during such probationary period, has committed the felony for which he is to be sentenced, shall have the felony for which the probation was granted treated in the same manner as a conviction thereof in the event that the probation is not revoked and an adjudication of guilt is not made prior to the imposition of such sentence.

      Ch. 71-136, § 5, at 556-57, Laws of Fla. (emphasis added).


text:
    Coy GODBOLT, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4519.
    District Court of Appeal of Florida, First District.
    Aug. 14, 2003.
    Rehearing Denied Sept. 2, 2004.
    George F. Schaefer, Gainesville, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Murray v. Regier, 872 So.2d 217 (Fla. 2002).

ERVIN, ALLEN and LEWIS, JJ., concur.


author: KLEIN, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. B.C., The Father, Appellee.
    No. 4D02-4987.
    District Court of Appeal of Florida, Fourth District.
    Aug. 27, 2003.
    Jeffrey Dana Gillen, West Palm Beach, for appellant.
    Frank A. Kreidler, Lake Worth, for ap-pellee.
   KLEIN, J.

A parent’s rights can be terminated, under our statute, if the parent is incarcerated for a period which will constitute a substantial portion of the child’s minority. The question in this case is whether the statute allows the court to consider the entire period of incarceration, or only the period to be served after the petition for termination is filed. We conclude that it is the former and reverse.

The trial court found that the father, who was serving a seven year, nine month sentence, has a projected release date from prison of January 2006, when the child will be eight. When he is released, the father will have been out of prison for only three months of the child’s life. The child does not know that appellee is her father. The trial court terminated the mother’s parental rights, which are not at issue on this appeal, but denied termination as to the father, concluding that his future incarceration is not a substantial portion of the child’s minority. The department appeals.

But for our decision in W.W. v. Department of Children and Families, 811 So.2d 791, 792 (Fla. 4th DCA 2002), the trial court would have terminated based on section 39.806(l)(d)l, Florida Statutes which provides:

The department ... may petition for the termination of parental rights under any of the following circumstances:
* * *
(d) When the parent of a child is incarcerated in a state or federal correctional institution and ...
1. The period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years;

We interpret “period of time for which the parent is expected to be incarcerated” to be the entire period, which in this case would be seven years, nine months. Although the trial court concluded that only future incarceration could be considered based on our decision in W.W., our opinion in W.W. makes it clear that we considered the entire period, not merely the future portion.

In W.W., the father’s parental rights had been terminated by the trial court only a few months before he was to be released from prison, after fifty four months of incarceration. At the time of his release, which occurred prior to the issuance of our opinion, the children were four, seven and eight years old. We concluded that the trial judge had erred in interpreting the statute to authorize termination if a parent was incarcerated for a substantial portion of the child’s minority to date. We reversed, holding that the statute required the court to consider the entire minority of the child, eighteen years, and further held that fifty four months, the entire sentence, was not a substantial portion of eighteen years. The trial court accordingly misinterpreted W.W. when it concluded that W.W. permits only the future portion of the sentence could be considered.

The term used in the statute, “substantial” means “considerable in importance, value, degree, amount, or extent.” The American Heritage Dictionary of the English Language 1284 (1981). The expected incarceration in this case, seven years, nine months, is a substantial portion of the eighteen years of minority. Because the trial court indicated it would have terminated on this ground, but for W.W., and because there is substantial competent evidence to support that finding, we reverse and remand for a judgment of termination of parental rights.

We certify direct conflict with In re J.D.C., 819 So.2d 264 (Fla. 2d DCA 2002) and In re A.W., 816 So.2d 1261 (Fla. 2d DCA 2002), which construed section 39.806(1)(d) to limit courts to considering only future incarceration.

GUNTHER and GROSS, JJ., concur.


author: HAWKES, J.

text:
    STATE of Florida, Appellant, v. Scott E. McFARLAND, Appellee.
    No. 1D02-4238.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2003.
    Rehearing Denied Sept. 28, 2004.
    Charlie Crist, Attorney General and Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellee.
   HAWKES, J.

The State of Florida filed a petition to civilly commit Appellee, Scott E. McFarland (McFarland) as a violent sexual predator upon his release from prison. McFarland filed a motion for summary judgment alleging the relief the State sought in the petition violated the terms of his plea agreement. The trial court granted summary judgment in favor of McFarland. In so doing, the trial court erred.

Pursuant to sections 394.910-394.931, Florida Statutes (2000) (the Jimmy Ryce Act), a person who is declared a sexually violent predator may be committed to the Department of Children and Families for care, custody, and treatment. A sex offender’s involuntary civil commitment as a sexually violent predator under the Jimmy Ryce Act is not continued punishment for his criminal offense, and thus does not violate an offender’s due process right to specific performance of his plea agreement. See Murray v. Regier, 872 So.2d 217 (Fla. 2002). Any bargain a defendant may strike in a plea agreement in a criminal case has no bearing , on a subsequent involuntary civil commitment for control, care, and treatment. See id; see also Sandillo v. State, 842 So.2d 1018, 1019 (Fla. 5th DCA 2003); Krischer v. Faris, 838 So.2d 600, 603 (Fla. 4th DCA 2003).

REVERSED.

WOLF, C.J., and BROWNING, J., concur.


text:
    Bruce Allen NESBITT, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1237.
    District Court of Appeal of Florida, First District.
    March 26, 2004.
    Rehearing Denied May 13, 2004.

      Brian T. Hayes, Monticello, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final order denying his motion requesting postconviction relief. Because the motion does not contain allegations which, if true, would establish his entitlement to relief pursuant to Florida Rule of Criminal Procedure 3.800(a), we treat the motion as one pursuant to rule 3.850. The sole claim raised in appellant’s motion is that the supreme court’s decision in Harris v. State, 685 So.2d 1282 (Fla.1996), must be given retroactive effect, entitling him to be resen-tenced pursuant to the guidelines. We affirm without reaching this issue because the motion is legally insufficient to entitle him to the relief he requests. This is so because the motion contains no allegations which, if true, would demonstrate that the maximum allowable sentence pursuant to Harris would be less than those appellant received. See, e.g., Allen v. State, 854 So.2d 1255, 1258-59 (Fla.2003) (to be legally sufficient, a rule 3.850 motion must allege “specific facts” which, if true, would establish a prima facie case of entitlement to relief).

AFFIRMED.

WEBSTER, BENTON and PADOVANO, JJ., concur.


text:
    HERNDON OIL CORPORATION, d/b/a Checkers, Appellant, v. VIK, LTD. and the State of Florida Department of Transportation, Appellees.
    No. 1D03-2679.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Rehearing Denied May 12, 2004.

      Michael G. Takac, Esquire, Ocala; Charles S. Stratton, Esquire and Gino Luzietti, Esquire, of Broad and Cassel, Tallahassee, for Appellant.
    S. Cary Gaylord, Esquire and Paul D. Bain, Esquire of Gaylord, Merlin, Ludovi-ci, Diaz & Bain, Tampa; Raymond T. Elli-gett, Jr., Esquire of Schropp, Buell & El-ligett, P.A., Tampa; Gregory C. Costas, Assistant Attorney General, Florida Department of Transportation, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Herndon Oil Corporation challenges the trial court’s Order of Apportionment as to Parcel 121(A) entered in eminent domain proceedings to apportion the compensation awarded by Stipulated Final Judgment for property taken by the Florida Department of Transportation and designated “Parcel 121(A).” The Stipulated Final Judgement was entered as a result of a mediated settlement agreement reached between DOT, owner and lessor VIK, Ltd., and tenant Herndon Oil, and awarded $1,200,000 to be paid, by DOT for the property taken. The $1,200,000 was to be apportioned according to the respective interests of the landlord VIK and the tenant Herndon Oil. At the time of the taking, Herndon Oil was operating the property as a Checkers’ restaurant facility. Herndon Oil argues that the trial court erred by (i) not allocating to it the proper amount of compensation for its property interests that were prematurely terminated by the taking, and (ii) reducing the amount it received by $30,000. We agree and, therefore, reverse.

The trial court accepted expert testimony that the fee value of the land taken from VIK was $900,000. Herndon Oil does not argue that this amount is in error, but that it is at Jeast entitled to the remaining balance of $300,000 because it was the owner of the -leasehold improvements at the time of the taking. We agree and hold that Herndon Oil is entitled to receive $300,000 for its allocated share of the $1,200,000, less $9,419.41 for its stipulated amount of unpaid property taxes, for the net amount of $290,580.59.

The $30,000 deducted by the trial court from Herndon Oil’s allocation amount was in error. After DOT’s taking of the property, Herndon Oil agreed with DOT that it would arrange for another Checkers’ franchisee to remove the modular Checkers’ structure from DOT’s property. With DOT’s agreement, Herndon Oil received $30,000 from the other franchisee for the structure. Because this $30,000 was separate from the $1,200,000 payment by DOT, it should not be deducted from Herndon Oil’s allocation.

REVERSED and REMANDED with instructions.

ALLEN and POLSTON, JJ.; KAREN COLE, Associate Judge, Concur.


text:
    Tina HARGROVE, as the personal representative of Henry M. Hargrove, Appellant/Cross-Appellee, v. James W. HOWELL, D.O., Appellee/Cross-Appellant.
    No. 1D03-0305.
    District Court of Appeal of Florida, First District.
    April 7, 2004.
    Rehearing Denied May 14, 2004.
    Stanley Bruce Powell and David R. Swanick, III, of Powell & Swanick, Niee-ville, for Appellant/Cross-Appellee.
    Jennings L. Hurt, III, Vance R. Dawson, Christopher J. Konicek, Michael V. Hammond, and Ginger R. Lore of Riss-man, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appel-lee/Cross-Appellant.
   PER CURIAM.

This is an appeal from a final judgment in a medical malpractice action brought by appellant, Tina Hargrove, in which the trial court entered judgment for appellee, Dr. James Howell, in accordance with the jury’s verdict absolving him from all liability. Appellant and appellee raise, a number of issues. We affirm all, but specifically address appellant’s claim that the trial court erred in allowing a defense expert, Dr. Michael Foley, to testify at trial regarding matters not disclosed in his pretrial deposition.

The gravamen of appellant’s complaint rested upon the testimony of her witness, Dr. Robert Wears, an expert in emergency medicine, regarding the standard of care Dr. Howell exhibited in his treatment of the personal representative’s decedent, Henry Hargrove. Dr. Wears testified that had Dr. Howell conducted proper testing for decedent’s condition when he first presented himself at Dr. Howell’s office complaining of severe abdominal pain, Dr. Howell could have diagnosed Hargrove’s condition as a dissecting aorta, rather than, as he had erroneously done, dyspha-gia (difficulty in swallowing), esophageal stricture, muscular strain, and possible traumatic degenerative joint disease. In the expert’s opinion, Dr. Howell should have, based upon Hargrove’s symptoms, ordered more tests, thereby leading to Hargrove’s hospitalization for evaluation, investigation of the cause of pain, and surgical intervention, which in turn could have avoided the patient’s death, occurring two days following the initial consultation. Dr. Wears concluded that if a person is correctly diagnosed with dissecting aorta and treatment is commenced, the patient has a 75 percent chance of survival.

In defense, Dr. Howell relied primarily on the opinion of Dr. Michael Foley, a radiologist, who examined Hargrove’s medical records,- esophagram, and upper GI series. Consistent with his earlier deposition-testimony, Dr. Foley agreed with Dr. Howell’s diagnosis that the records disclosed mild to moderate esophagitis, and that there was no evidence in them of an aortic dissection or rupture. He additionally testified, apparently based on his own independent research, that 98 percent of patients with Type A aortic dissection, which is what Hargrove had, die within six hours from symptom onset before reaching a hospital, and of the remaining two percent who are admitted, the mortality rate is 45 percent.

Plaintiff objected to the additional testimony, claiming surprise, and the objection was overruled. During cross-examination of Dr. Foley, Hargrove attempted to impeach him by referring to a text on internal medicine, which the trial court had ruled was authoritative. The following colloquy occurred:

Q: [Plaintiffs counsel] Do you agree or disagree with this sentence? “The overall in-hospital mortality rate, after surgical treatment of patients with aortic dissection, is reported to be 15 to 20%.”
A: It’s in the ballpark. As we said before, the overall in-hospital mortality is 25%. You’re reading out of Harrison’s I believe.
Q: Yeah.
A: I am quoting the International Registry of Aortic Dissections, which is the world’s largest series of aortic dissections of those that make it to the hospital. I don’t know what the date of your book is, but my reference is—
Q: I need you to stop and we need to approach.

Hargrove objected that the witness was not permitted to quote from an authoritative source, the International Registry of Aortic Dissections (IRAD) study, to bolster his opinion. The court overruled the objection, stating that bolstering a witness’s testimony is prohibited in direct examination, but not during cross-examination.

We agree with Hargrove that the lower court erred in permitting the testimony; we disagree, however, that the error required reversal. Dr. Foley’s reference to the IRAD study, not revealed during his deposition, constituted an improper bolstering of his opinion, and the fact that it was made during cross-examination, rather than on direct, is immaterial. See Tallahassee Mem’l Reg’l Med. Ctr. v. Mitchell, 407 So.2d 601 (Fla. 1st DCA 1981) (observing that an expert may rely on facts or data that are inadmissible as the basis of an opinion, but may not bolster his opinion during cross-examination by using a medical treatise to support his testimony before the jury); Green v. Goldberg, 630 So.2d 606 (Fla. 4th DCA 1993) (commenting that authoritative publications can be used during cross-examination of an expert under section 90.706, Florida Statutes, but may not be used to bolster the expert’s credibility or to supplement an opinion that has been formed, because statements in a learned treatise may not be used as substantive evidence).

Nevertheless, we consider the error harmless. The single comment regarding the study, made by Dr. Foley during the course of a four-day trial, was never again mentioned. Moreover, much of the surprise that appellant complains of was the result, in large measure, of her not conducting a more thorough deposition examination of appellee’s expert. As the Florida Supreme Court observed in Binger v. King Pest Control, 401 So.2d 1310, 1313, n. 7 (Fla.1981), a party has an obligation to conduct sufficient discovery to ascertain the nature of the testimony to be offered by a witness. The failure of Dr. Foley to testify during his 14-page deposition about causation and survival rates of persons suffering aortic dissections is reasonably explained by the fact that he was never asked such questions. Indeed, during the deposition, defense counsel proffered the areas he expected the witness to testify about at trial, which would include the “concerns” mentioned by Dr. Wears that a chest x-ray should have been taken. Because the central issue before the jury was whether Dr. Howell’s conduct in the treatment of his patient deviated from the reasonable standard of care, we believe that Hargrove should have logically anticipated that Dr. Foley would testify concerning survivability rates. In other words, counsel should have anticipated the defense effort to offset the testimony of Hargrove’s expert, who opined that if Dr. Howell had properly tested and hospitalized the decedent, it is probable he would have survived, because there is a 75 percent rate of survival if a dissecting aorta condition is promptly diagnosed and treated.

In deciding whether the testimony of an undisclosed witness should be excluded, the primary factor to consider is whether the use of such testimony will prejudice the objecting party. Binger, 401 So.2d at 1314. Applying this test to the instant case, our review of the record fails to show how appellant was prejudiced by the use of the undisclosed testimony. Appellant claims that Dr. Foley “lied” when he testified that the mortality rate of patients with Type A aorta dissections is 45 percent of the two percent of those who live long enough to reach the hospital. She cites one IRAD exhibit showing instead the rate to be 32.5 percent. It does not appear, however, from the record that when Dr. Foley referred to the IRAD study, he was using the study to bolster his earlier trial testimony that 45 percent of Type A patients died during hospital treatment. The single reference the witness made to the IRAD study appears to have been used as support for his agreement with appellant’s expert, who had stated that the overall hospital death statistics of patients with aortic dissection were 25 percent. In fact, another IRAD exhibit, offered by appellee in opposition to the motion for new trial, effectually corroborated the overall death rates given by both experts, listing the total hospital mortality rate at 27.4 percent.

AFFIRMED.

ERVIN and BOOTH, JJ., and SMITH, Senior Judge, concur.

      . In Dr. Wears’ opinion, Dr. Howell should have taken a chest x-ray and performed an EKG on Hargrove.

      . This material was not introduced during trial; it was attached to appellant's motion for new trial.

      . The expert, Dr. Wears, did not differentiate between Type A and Type B rates.


text:
    UNIMED, Professional Liability Insurance Company, Ltd. (PLIC), etc., et al., Appellants, v. STATE of Florida, OFFICE OF INSURANCE REGULATION, Appellee.
    No. 1D03-1667.
    District Court of Appeal of Florida, First District.
    April 13, 2004.
    Rehearing Denied May 13, 2004.

      John Radey, Karen Asher-Cohen and Natalie Futch of Radey Thomas Yon & Clark, Tallahassee; Julianna K. Burke of Morris, Manning & Martin, LLP, Atlanta, GA, for Appellants.
    Susan Dawson of the Office of Insurance Regulation, Tallahassee, for Appellee.
   PER CURIAM.

Appellants seek review of an Immediate Final Order entered by appellee (the Office of Insurance Regulation) pursuant to section 120.569(2)(n), Florida Statutes (2002), ordering appellants to cease and desist from the transaction of any new or renewal insurance business in Florida. The order lacks a factual recitation demonstrating the existence of “an immediate danger to the public health, safety, or welfare,” as required by section 120.569(2)(n). It is, instead, predicated solely on conclu-sory allegations implying that appellants’ failure to be licensed in Florida, by itself, constitutes an immediate danger to the public health, safety and welfare. The order is substantively indistinguishable from those held to be deficient by this court in Commercial Consultants Corp. v. Department of Business Regulation, 363 So.2d 1162 (Fla. 1st DCA 1978), American Insurance Association v. Florida Department of Insurance, 646 So.2d 784 (Fla. 1st DCA 1994), Crudele v. Nelson, 698 So.2d 879 (Fla. 1st DCA 1997), Florida Association of Health Maintenance Organizations v. State Department of Insurance, 771 So.2d 1222 (Fla. 1st DCA 2000), and United Insurance Company of America v. State Department of Insurance, 793 So.2d 1182 (Fla. 1st DCA 2001). As all of those decisions emphasize, it is not sufficient merely to allege a statutory violation; instead, the order must contain a factual recitation sufficient to demonstrate the existence of an imminent threat of “specific incidents of irreparable harm to the public interest” requiring use of the extraordinary device afforded by section 120.569(2)(n). Commercial Consultants, 363 So.2d at 1164. Accord United Ins. Co. of Am., 793 So.2d at 1184 (quoting from Commercial Consultants). Because the Immediate Final Order does not recite facts sufficient to demonstrate the existence of “an immediate danger to the public health, safety or welfare” as required by section 120.569(2)(n), we reverse.

REVERSED.

WEBSTER, BENTON and PADOVANO, JJ„ concur.


text:
    Michael PERKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1933.
    District Court of Appeal of Florida, First District.
    April 19, 2004.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Therrien v. State, 859 So.2d 585, 587 (Fla. 1st DCA) (rejecting appellant’s argument that section 775.21, Florida Statutes (2000), violated his right to procedural due process, because it did not require a hearing to determine whether he posed a danger to the public), review pending, No. SC03-2219 (Fla. Dec. 18, 2003). Accord Glenn v. State, 861 So.2d 1289 (Fla. 5th DCA 2004); Reyes v. State 854 So.2d 816 (Fla. 4th DCA 2003); Milks v. State, 848 So.2d 1167 (Fla. 2d DCA), review granted, 859 So.2d 514 (Fla.2003). We certify conflict with Espindola v. State, 855 So.2d 1281, 1290 (Fla. 3d DCA 2003).

WOLF, C.J., ERVIN and VAN NORTWICK, JJ., concur.


text:
    CITY OF MIAMI, Appellant, v. BENCH ADS AMERICA, INC., Appellee.
    No. 3D02-1831.
    District Court of Appeal of Florida, Third District.
    May 4, 2004.
    Alejandro Vilarello, City Attorney, and James Villacorta, Regine Monestime, Assistant City Attorney, for appellant.
    Smoler, Lerman, Bente & Whitebook, P.A. and Bruce J. Smoler (Hollywood), and Geller, Geller, et al., and Joseph S. Geller (Hollywood), for appellee.
    Before COPE, SHEYIN, and SHEPHERD, JJ.
   PER CURIAM.

Affirmed.


text:
    James F. NOSE, Appellant, v. James CROSBY, Jr., Secretary, Department of Corrections, and Florida Parole Commission, Appellees.
    No. 1D03-5280.
    District Court of Appeal of Florida, First District.
    May 13, 2004.
    James F. Nose, pro se, appellant.
    Rosa Carson, General Counsel, and Judy Bone, Assistant General Counsel, Department of Corrections, Tallahassee; Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for ap-pellees.
   PER CURIAM.

The order of dismissal is reversed on authority of Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004). The case is remanded to the Circuit Court for Leon County for further proceedings.

REVERSED AND REMANDED.

ALLEN, PADOVANO and LEWIS, JJ., concur.


text:
    Kelly L. SLAUBAUGH, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D04-0509.
    District Court of Appeal of Florida, First District.
    May 17, 2004.
    Wayne L. Allen and Adrienne E. Trent of Wayne L. Allen & Associates, Melbourne, for appellant.
    Geri Atkinson-Hazelton, General Counsel, Unemployment Appeals Commission, Tallahassee, for appellee.
   PER CURIAM.

Because the notice of appeal was not timely filed, this appeal is hereby dismissed for lack of jurisdiction. See First Nat. Bank in Fort Myers v. Florida Unemployment Appeals Comm’n, 461 So.2d 208 (Fla. 1st DCA 1984).

APPEAL DISMISSED.

BARFIELD, DAVIS and POLSTON, JJ., concur.


text:
    Steven HAMM, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-536.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    No appearance required for appellee.
   PER CURIAM.

We sua sponte dismiss this appeal as untimely. This dismissal is without prejudice to appellant’s right to file a proper petition for belated appeal pursuant to Florida Rule of Appellate Procedure 9.141. We do not reach the issue of whether appellant is entitled to any exemption from the time limitations period under that rule.

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


text:
    Khalif Amon JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-2360.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Khalif Amon Jones, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(c)(4)(B).

ERVIN, BENTON and LEWIS, JJ., concur.


author: PALMER, J.

text:
    Samuel SANTIAGO, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2865.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.

      James B. Gibson, Public Defender, and Barbara C. Davis, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PALMER, J.

Samuel Santiago (defendant) appeals his judgments and sentences which were entered by the trial court after a jury found him guilty of committing the crimes of conspiracy to traffic in heroin and trafficking in heroin. Finding no reversible error with regard to the defendant’s convictions, we affirm same. However, with regard to the defendant’s sentences, we conclude the mandatory minimum term imposed is improper and strike it accordingly.

The defendant argues that the trial court erred in denying his pre-trial motion to suppress evidence which was seized from his vehicle at the time of his arrest, claiming that the search of his vehicle exceeded the scope of his consent. We disagree.

During the vehicle search, the police officer, who learned during his training that drugs were often concealed behind car radios, pulled on the defendant’s car radio and it moved free and clear, in that it was not connected by any wires or screws. The officer then found the heroin hidden behind the radio. The defendant argues that a reasonable person would not understand that the officers’ request to search the car would include “dismantling his radio and searching behind it.” We reject this position. The arresting officers testified that the defendant gave them a general consent to search his vehicle and in no way limited the scope of his consent. The evidence demonstrated that the drugs were located in the dashboard behind the radio and that the radio was not attached to the dashboard but was simply poised there in order to hide the drugs. As such, the record contains sufficient evidence to support the trial court’s ruling finding the search properly within the scope of the defendant’s consent. See State v. Ramirez, 625 So.2d 119 (Fla. 5th DCA 1993)(holding that officer’s observation that panel in dashboard above glove compartment was ajar during consensual search of vehicle was sufficient to give officer probable cause, in light of his expertise in use of secret compartments in automobiles for drug transport, to use screwdriver to pry open panel to determine whether there was secret compartment concealing drugs where he suspected them to be).

The defendant also argues that the trial court erred in denying his motions for mistrial which were raised when improper comments were made by several State witnesses regarding the defendant’s involvement in uncharged drug crimes. We disagree. The trial court acted within its discretion to deny the mistrial motions because the statements objected to were merely cumulative to evidence already admitted into evidence and, furthermore, the statements were volunteered by the State’s witnesses, not elicited from the witnesses by the prosecutor.

The defendant next argues that the trial court erred in denying his motion for a judgment of acquittal on the charge of conspiracy. We again disagree. The State presented evidence sufficient to support a finding that the defendant was involved in a conspiracy to traffic in heroin.

The defendant lastly argues that the trial court erred in sentencing him to a mandatory minimum three-year prison term on his trafficking conviction pursuant to section 893.135 of the Florida Statutes. We agree. While the trial court properly relied on our decision in Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) in imposing a mandatory minimum sentence, this court recently receded from Hersey in Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004), holding that retroactive application of the legislative reenactments of the provisions imposing mandatory prison terms could not occur without violating the ex post facto clauses of the state and federal constitutions. Accordingly, the defendant’s mandatory minimum term of imprisonment must be stricken.

Judgments affirmed. Sentences affirmed, except that the mandatory minimum term of imprisonment is hereby stricken.

AFFIRMED. Portion of sentence STRICKEN.

PLEUS and TORPY, JJ., concur.


author: BROWNING, J. BARFIELD, J.,

text:
    Christopher Allen BECKHAM, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0410.
    District Court of Appeal of Florida, First District.
    Aug. 4, 2004.
    Rehearing Denied Sept. 8, 2004.

      Nancy A. Daniels, Public Defender; and Janice G. Scott, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

A grand jury indicted Christopher A. Beckham (Appellant) for the first-degree premeditated murder (Count One) and robbery (Count Two) of Annette Graham. The jury found Appellant guilty of the lesser-included offense of second-degree murder (depraved mind) in Count One and not guilty in Count Two. Appellant contends, first, that the trial court committed fundamental error by failing to instruct the jury completely on justifiable and excusable homicide as part of the instruction on manslaughter; and, second, that the court erred by allowing testimony that when the detective told Appellant the victim’s blood was on Appellant’s shirt, Appellant declined to explain how that could have happened. We find no error in the court’s allowing the detective’s testimony where Appellant had been read his Miranda rights and had initialed a waiver of rights form. See Thomas v. State, 726 So.2d 357 (Fla. 1st DCA 1999) (finding testimony that defendant had no response to question during police interview was not impermissible comment on his constitutional right to remain silent, where defendant had voluntarily waived his Miranda rights). However, absent a showing that defense counsel knew the jury instruction was incomplete and expressly and affirmatively waived Appellant’s right to the complete instruction, we are constrained to reverse and remand for a new trial on Count One. See, e.g., Black v. State, 695 So.2d 459 (Fla. 1st DCA 1997); Roberts v. State, 694 So.2d 825 (Fla. 2d DCA 1997); Ortiz v. State, 682 So.2d 217 (Fla. 5th DCA 1996).

We have de novo review of the question of law whether the trial court fundamentally erred by failing to give a complete and accurate jury instruction (explaining justifiable and excusable homicide) for the offense of manslaughter, which is one step removed from second-degree murder (of which Appellant was found guilty). See State v. Lucas, 645 So.2d 425, 427 (Fla.1994); Miller v. State, 870 So.2d 15, 17 (Fla. 2d DCA 2003) (“Failure to instruct on an offense only one step removed from the conviction is per se reversible error”). Manslaughter is defined as “[t]he killing of a human being by the act, procurement, or culpable negligence of another, without lawful justification according to the provisions of chapter 776 and in cases in which such killing shall not be excusable homicide or murder.” § 782.07(1), Fla. Stat. (1999). Thus, “[mjanslaughter is a residual offense, defined by reference to what it is not.” Stockton v. State, 544 So.2d 1006, 1007-08 (Fla.1989). “In order to define manslaughter completely, the definitions of justifiable and excusable homicide must be included. An instruction on manslaughter which omits the definitions of justifiable and excusable homicide is, therefore, incomplete.” Id. at 1008; see also Miller v. State, 573 So.2d 337 (Fla.1991) (holding that trial court fundamentally erred in failing to mention manslaughter defenses of justifiable and excusable homicide, where defendant was charged with second-degree murder and found guilty of manslaughter); Fletcher v. State, 828 So.2d 460, 461 (Fla. 5th DCA 2002) (“It is well-established that trial courts are required to read the instructions on justifiable and excusable homicide in all murder and manslaughter cases.”); Black, 695 So.2d at 460. Although the State correctly notes that Appellant presented an alibi defense, case law states that “[fjailure to read these instructions constitutes fundamental error, even if there is no basis in fact for the charge.” Id.

At Appellant’s trial, when the judge asked for the proposed jury instructions, the prosecutor said “[tjhey’re on the way.” Defense counsel stated on the record that he and the State had reviewed the instructions. When the judge asked whether the attorneys were in agreement, defense counsel answered in the affirmative. The judge then remarked: “As soon as they get here, I’ll ask that you go through them and make sure that they are as you have agreed, and then I will read them in the record and each juror will be given a copy.” Later the same day, the prosecutor provided a copy of the instructions to the court and stated that he had provided a copy to defense counsel, who stated that he was ready to proceed. Defense counsel did not object to the written instructions. The attorneys then presented closing argument.

Subsequently, the jury was instructed without an objection. First, the court gave instructions on first-degree premeditated murder and first-degree felony murder. Next, the court instructed the jury on second-degree murder (depraved mind), second-degree felony murder, and third-degree murder. The court read the following instruction on the lesser-included offense of manslaughter:

Manslaughter. Before you can find the defendant guilty of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
Number one, Annette Graham is dead.
Number two, the defendant [A] intentionally caused the death of the victim.
B, intentionally procured the death of the victim.
C, caused the death of the victim by culpable negligence.
However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide, as I have 'previously explained those terms to you.

(Emphasis added). In fact, the judge had not previously explained the terms “justifiable or excusable homicide.” Defense counsel did not object.

Appellant relies on Rojas v. State, 552 So.2d 914 (Fla.1989), and its progeny for the proposition that the failure to instruct on1 justifiable and excusable homicide when instructing the jury on manslaughter constitutes reversible error. See id. at 916; Lucas, 645 So.2d at 425; McCray v. State, 846 So,2d 1253 (Fla. 1st DCA 2003) (reversing manslaughter conviction and remanding because trial court fundamentally erred by failing to explain in manslaughter instruction that offense does not encompass justifiable or excusable homicide). Like Appellant, Rojas was charged with first-degree murder and was found guilty of second-degree' murder. At the beginning of the first instruction in Rojas, the court informed the jury concerning when the killing of a human being is justifiable or excusable. 552 So.2d at 914. However, the court omitted any reference to justifiable or excusable homicide in the definition of manslaughter. Id. at 915. Rejecting the district court’s conclusion that the failure to give a contemporaneous definition of justifiable and excusable homicide as part of the manslaughter instruction was harmless error, the Supreme Court of Florida held that the error was “fatal,” and it quashed the district court’s opinion. Id. at 915-16. In Lucas, 645 So.2d at 427, the Supreme Court of Florida cited Rojas and Miller, 573 So.2d at 337, for the principle that “failure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” “The absence of an objection does not waive any error occasioned by the' failure to read the instruction.” Blandon v. State, 657 So.2d 1198, 1199 (Fla. 5th DCA 1995). The Fifth District Court justified this rule as follows:

Jurors need to know what constitutes a criminal act so that they may differentiate between a criminal and noncriminal act. The instruction must be read even if there is no basis in fact for the charge.

Id.

The court in Lucas acknowledged an exception to this rule “where defense counsel affirmatively agreed to or requested the incomplete instruction.” 645 So.2d at 427, citing Armstrong v. State, 579 So.2d 734, 735 & n. 1 (Fla.1991) (holding that defense counsel waived future objection by defendant to trial court’s failure to give full, complete initial jury instruction on justifiable and excusable homicide as part of manslaughter instruction where, for tactical reasons, counsel specifically requested abbreviated instruction, which otherwise would have constituted fundamental error); see also Philippe v. State, 795 So.2d 173 (Fla. 3d DCA 2001). The State contends that the Armstrong exception applies here, where defense counsel informed the court that the prosecution and the defense had reviewed the proposed (incomplete) instructions and agreed to them. We must decide whether, in so stating, defense counsel’s agreement excepted Appellant’s case from the general rule of Rojas and Lucas, thereby waiving the issue for direct appeal.

The Fifth District Court reversed and remanded for a new trial on very similar facts in Ortiz, 682 So.2d at 217. Ortiz was charged with attempted robbery with a firearm and attempted first-degree murder with a firearm. Id. He was convicted as charged on the attempted robbery count and was convicted of the lesser offense of attempted second-degree murder with a firearm on the other count. Id. at 217-18. The jury was not instructed on justifiable homicide. After the charge conference, defense counsel told the court: “Judge, we have looked over [the charges], and we don’t have any objection to any of the instructions.” Id. at 218 (brackets in original). Relying on Armstrong, the State asserted that defense counsel’s remarks demonstrated an express waiver of the justifiable homicide charges. The district court disagreed, stating:

As we held in Blandón, the mere failure to object to the omission of a justifiable homicide charge in an attempted murder case does not constitute the affirmative waiver discussed in Armstrong. It was the trial court’s responsibility to see that the jury was properly instructed and that the definition of justifiable homicide was read.

Id. The court reversed the judgment and sentence for attempted second-degree murder and remanded for a new trial. Id.; see also Roberts, 694 So.2d at 825 (finding that defense counsel’s mere acquiescence in jury instructions as given did not constitute affirmative agreement to omission of instructions on attempted manslaughter and definitions of justifiable and excusable homicide); Nelson v. State, 679 So.2d 1249 (Fla. 4th DCA 1996) (reversing conviction of second-degree murder with firearm and remanding for new trial, absent affirmative waiver of right to a complete instruction on excusable and justifiable homicide, where parties’ lawyers reviewed proposed jury instructions and submitted instructions to court, judge inquired whether attorneys were in agreement on instructions, prosecutor answered affirmatively, and defense counsel did not respond).

We addressed this issue in Black, 695 So.2d at 459. An indictment charged Black with first-degree murder; his theory of defense was self-defense. Id. at 460. The court instructed Black’s jury that first-degree murder includes the lesser offenses of second-degree murder and manslaughter. While instructing on manslaughter, the trial court in Black indicated that “justifiable and excusable homicide” had been previously explained. However, nowhere in the trial record of the jury instructions had the court given an earlier charge on the definition of either justifiable or excusable homicide. Although the court defined “justifiable homicide” relating to the defense of self-defense, it never instructed the jury on the definition of “excusable homicide.” After the jury instructions were given, the court asked the attorneys whether they stipulated that the instructions were as discussed in the charge conference, and defense counsel answered, “Yes, sir, they were.” Id. The jury found Black guilty of the lesser-included offense of second-degree murder with a weapon. Id. The State in Black argued that defense counsel had affirmatively ratified the jury instruction as given. Id. Reversing the judgment and sentence and remanding for a new trial in Black, we rejected the State’s contention on the following ground:

We cannot agree that defense counsel’s statement to the court, simply acknowledging that the instructions as given to the jury were as reviewed at the charge conference, constituted an express waiver of, or an affirmative request to limit, the excusable homicide definitional instruction. At best, the record reflects that defense counsel failed to object to the incomplete instruction. Before the exception recognized in Lucas can apply, defense counsel must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction. These circumstances do not exist on the instant record.

Id. at 461.

The record does not show that defense counsel was aware of the incomplete instruction and affirmatively agreed to it. Accordingly, the Armstrong exception is inapplicable to these facts. As we did in Black, we find the trial court fundamentally erred in giving the incomplete jury instruction. Appellant’s judgment and sentence is REVERSED and REMANDED for a new trial.

BARFIELD, J., concurs with opinion; and LEWIS, J., concurs.

BARFIELD, J.,

concurs with opinion.

I concur in the decision of the majority because the phrase “as I have previously explained those terms to you” recited by the trial judge leaves uncertain whether trial counsel intended the omission of that part of the instruction.

I think the Supreme Court made it quite clear that circumstances may exist where affirmative waiver occurs without the expressed request by the defense to omit a specific part of an instruction.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Jack E. HUGGINS, Jr., d/b/a Huggins Design & Development, Appellant, v. John E. BLACKSHEAR and Patsy D. Blackshear, Appellees.
    No. 1D03-1385.
    District Court of Appeal of Florida, First District.
    Aug. 10, 2004.
    Bret A. Moore of The Moore Law Firm, P.A., Niceville, for Appellant.
    Daniel C. O’Rourke of Matthews & Hawkins, P.A., Destín, for Appellees.
   PER CURIAM.

The amended final judgment is affirmed.

DAVIS, LEWIS and POLSTON, JJ., concur.


text:
    Joseph HESTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-3096.
    District Court of Appeal of Florida, First District.
    Aug. 13, 2004.
    Nancy A. Daniels, Public Defender; Paula S. Saunders, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Thomas D. Winokur, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. See Green v. State, 463 So.2d 1139 (Fla.1985).

WOLF, C.J., KAHN and LEWIS, JJ., CONCUR.


text:
    BROWARD YACHTS, INC., d/b/a Broward Marine, Appellant, v. YACHTING PROMOTIONS, INC., and Show Management, Inc., Appellees.
    No. 3D03-2985.
    District Court of Appeal of Florida, Third District.
    Sept. 1, 2004.
    Duke, Mullin Galloway and John M. Muhin, Fort Lauderdale, and Victoria L. Cook, for appellant.
    Ruden, McClosky, Smith, Schuster Russell and John H. Pelzer, Fort Lauderdale, and Brigid F. Cech, for appellees.
    Before LEVY, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Lotenfoe v. Pahk, 747 So.2d 422, 426 (Fla. 2d DCA 1999); Leibowitz v. City of Miami Beach, 683 So.2d 204, 205 (Fla. 3d DCA 1996); SeaEscape, Ltd. v. Maximum Mktg. Exposure, Inc., 568 So.2d 952, 955 (Fla. 3d DCA 1990).


text:
    AGRICULTURAL EXCESS AND SURPLUS LINES INSURANCE COMPANY, n/k/a Great American E & S Insurance Company, a foreign corporation, Petitioner, v. KENDALL LAKES TOWNHOMES DEVELOPERS, INC., Respondent.
    No. 3D03-1750.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2004.
    Heidi M. Roth, for petitioner.
    Gonzalo R. Dorta, for respondent.
    Before SCHWARTZ, C.J., and LEVY and FLETCHER, JJ.
   PER CURIAM.

The Petitioner herein, Agricultural Excess and Surplus Lines Insurance Company, n/k/a Great American E & S Insurance Company (“Agricultural”), seeks a Writ of Certiorari from this Court to quash a non-final order of the circuit court which denied its Motion for Protective Order. The Petitioner is entitled to the relief sought.

The appraisal clause, which is replicated on page ten of the Petition, states that if the appraisers cannot agree on an umpire, “either may request that selection be made by a judge of a court having jurisdiction”. Because the parties were not able to agree on an umpire, they went before the trial court pursuant to Agricultural’s Petition for Selection of Umpire solely for the purpose of having the trial court select an umpire. At this point, there is no need or justification for a deposition of Agricultural’s appraiser, since such a deposition would not be relevant to the trial court’s selection of a neutral umpire. The contract between the parties only provides that the parties may approach the court for a selection of an umpire. No discovery is contemplated in the provision of the contract under which the parties are now proceeding.

Petition granted.


author: MONACO, J.

text:
    STATE of Florida, Petitioner, v. Kevin ROBERSON, Respondent.
    No. 5D04-426.
    District Court of Appeal of Florida, Fifth District.
    Sept. 17, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Belle B. Schumann, Assistant Attorney General, Daytona Beach, for Petitioner.
    Vincent W. Howard, Jr., of Howard & Reyes, Chartered, Sanford, for Respondent.
   ON RESPONDENT’S MOTION FOR REHEARING

MONACO, J.

Respondent’s Motion for Rehearing is granted, the prior opinion of this court dated April 23, 2004, is withdrawn, and we substitute the following in its place.

The State of Florida seeks certiorari review of a pre-trial discovery order compelling the production of the mental health records of the purported victim of sex crimes for which the Respondent, Kevin Roberson, is charged. Because we conclude that the psychotherapist-patient privilege applies to some of the mental health records requested, we grant certio-rari and quash the discovery order.

Mr. Roberson is charged with one count of lewd or lascivious battery with a person 12 years of age or older but less than 16 years of age in violation of section 800.04(4)(a), Florida Statutes (2003), and two counts of lewd or lascivious molestation in violation of section 800.04(5), Florida Statutes (2003). In each instance the alleged victim is K.A. While taking depositions, Mr. Roberson learned that K.A. had a history of mental health difficulties, including a prior commitment pursuant to the Baker Act, and was taking various medications as part of her treatment. Mr. Roberson sought to obtain K.A.’s mental health records, asserting that discovery was necessary to evaluate her capacity to observe, remember and recount the events that gave rise to the criminal charges. The original trial judge denied the requested discovery. After a successor judge was assigned to his case, Mr. Roberson renewed his motion, and the successor judge ordered an in camera inspection of all of these records to determine if their disclosure was warranted. The State seeks certiorari review of this order. Because the legislature has treated mental health records resulting from Baker Act proceedings differently from mental health records otherwise generated, we will address each separately:

A. RECORDS OF BAKER ACT PROCEEDINGS.

Part I of chapter 894, Florida Statutes (2003), the Baker Act, describes the procedures prescribed by the legislature for the involuntary evaluation or commitment of persons suffering from mental, emotional and behavioral disorders. See § 394.453, Fla. Stat. (2003). The clinical records associated with Baker Act commitments are required to be confidential, except under very limited circumstances. Section 394.4615, Florida Statutes (2003), which describes the confidentiality of these clinical records provides in pertinent part:

(1) A clinical record shall be maintained for each patient. The record shall include data pertaining to admission and such other information as may be required under rules of the department. A clinical record is confidential and exempt from the provisions of s. 119.07(1). Unless waived by express and informed consent, by the patient or the patient’s guardian or guardian advocate ... the confidential status of the clinical record shall not be lost by either authorized or unauthorized disclosure to any person, organization, or agency.
(2) The clinical record shall be released when:
(a) The patient or the patient’s guardian authorizes the release....
(b) The patient is represented by counsel and the records are needed by the patient’s counsel for adequate representation.
(c) The court orders such release. In determining whether there is good cause for disclosure, the court shall weigh the need for the information to be disclosed against the possible harm of disclosure to the person to whom such information pertains.

This statute was considered by the Fourth District in Katlein v. State, 731 So.2d 87 (Fla. 4th DCA 1999). The court there set out a mechanism for determining when it is appropriate for a court to order the release of such records, which we find to be fair and reasonable. The party seeking the records must first make a threshold showing that the privileged records are likely to contain relevant evidence. “The defendant must advance a good faith factual basis which is not ‘merely a desperate grasping at a straw.’ Id. at 90 (citing to People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (N.Y. 1979)). In other words, no fishing expeditions.” Katlein, 731 So.2d at 90. If a showing is made that the records are likely to contain relevant evidence, the court will do an in camera inspection. If the court concludes after inspecting the records that they contain relevant information, it should then allow the parties access to them in order to determine whether disclosure of the information to the trier of fact is required to ensure a fair trial. The burden is on the party seeking disclosure to demonstrate that disclosure is required.

Thus, we conclude that the Baker Act records of the witness in the present case are indeed subject to an in camera inspection and potential disclosure using the terms outlined in Katlein.

B. OTHER MENTAL HEALTH RECORDS.

We now turn to a consideration of whether the other mental health records of the witness are subject to in camera inspection. We conclude that they are not.

Section 90.503(2), Florida Statutes (2003), which defines the psychotherapist-patient privilege, states that the patient “has a privilege to refuse to disclose, and prevent any other person from disclosing confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition ...” The State argues that the statute prohibits the disclosure of K.A.’s records. Mr. Roberson asserts that his Sixth Amendment right of confrontation of witnesses, and his Fifth Amendment right to due process compel disclosure of all of K.A.’s mental health records for an in camera review, despite the language of the statute.

The primary question presented by this appeal was considered en banc by the Third District Court of Appeal in State v. Famiglietti, 817 So.2d 901 (Fla. 3d DCA 2002). The plurality opinion authored by Judge Cope concluded that neither the Evidence Code, nor any applicable constitutional principle allows the invasion of a victim’s privileged communications with her psychotherapist. Accordingly, the court declined to allow disclosure of the victim’s mental health records, even if those records were first screened by the trial court in camera. We fully agree with Judge Cope’s reasoning and conclusion.

The opinion of the United States Supreme Court in Jaffee v. Redmond, 518 U.S. 1, 116 S.Ct. 1923, 135 L.Ed.2d 337 (1996), supports this conclusion. The Court there pointed out that the psychotherapist-patient privilege serves the public interest “by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem.” Id. at 11. The opinion says further:

Effective psychotherapy ... depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories, and fears. Because of the sensitive nature of the problems for which individuals consult psychotherapists, disclosure of confidential communications made during counseling sessions may cause embarrassment or disgrace. For this reason, the mere possibility of disclosure may impede development of the confidential relationship necessary for successful treatment.

Id. at 10, 116 S.Ct. 1923. The Court endorsed the concept that confidentiality is the sine qua non for successful psychiatric treatment. Id. at 10, 116 S.Ct. 1923. The lead opinion also rejected the use of in camera inspections as a means to balance the competing interests of the criminal defendant and the witness, saying that “making the promise of confidentiality contingent upon a trial judge’s later evaluation of the relative importance of the patient’s interest in privacy and the eviden-tiary need for disclosure would eviscerate the effectiveness of the privilege.” Jaffee, 518 U.S. at 17-18,116 S.Ct. 1923.

The importance of the psychotherapist-patient privilege in modern society is confirmed by the fact that all fifty states, the District of Columbia, and the federal courts have enacted or adopted some form of the privilege into their jurisprudence. The Florida legislature has engrafted three evidentiary exceptions to the privilege, which basically are that there is no privilege associated with involuntary commitment proceedings; or when there is a court ordered mental examination; or when the patient raises and relies on the issue of his or her mental condition in litigation as part of a claim or defense. See § 90.503(4), Fla. Stat. (2003). If there are going to be other exceptions to general mental health records — such as the use of an in camera inspection — then the legislature should first define them, much as it did with respect to Baker Act records, so that persons seeking the aid of a psychotherapist will know what the rules are going in.

Accordingly, we grant the petition for certiorari and quash the order of the trial court granting discovery into all of the mental health records of K.A., except for those records generated by any Baker Act proceedings she may have been subject to. As the Famiglietti court did, and for the reasons stated in Famiglietti, we disagree with State v. Finder, 678 So.2d 410 (Fla. 4th DCA 1996), to the extent that it approves the in camera inspection procedure for mental health records other than Baker Act records.

WRIT GRANTED.

PALMER and ORFINGER, JJ., concur.

      . We observe that there appears to be significant support for the proposition that the confrontation clause of the Sixth Amendment deals with trial rights, as opposed to pre-trial rights. In Pennsylvania v. Ritchie, 480 U.S. 39, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987), the high court addressed certain issues concerning whether a criminal defendant charged with child molestation could obtain pre-trial discovery of files from Pennsylvania’s children and youth services agency to determine if the information contained within them would assist his defense at trial. While no majority emerged with respect to whether the confrontation clause applies to pre-trial activities, four justices expressed the view in the lead opinion that the right to confrontation is a trial right that is designed to prevent improper restrictions on questioning by the defense. The plurality wrote that “The ability to question adverse witnesses ... does not include the power to require the pretrial disclosure of any and all information that might be useful in contradicting unfavorable testimony.” Id. at 52-53, 107 S.Ct. 989; see also, People v. Hammon, 15 Cal.4th 1117, 65 Cal.Rptr.2d 1, 938 P.2d 986 (1997). Cf., Goldsmith v. State, 337 Md. 112, 651 A.2d 866 (1995). While we need not deal with this issue in the present case, we do note that our opinion concerns only pre-trial discovery of mental health records, and does not address what questioning on mental health matters may be permitted at trial. We leave that for another day.

      . In Pinder the Fourth District held that records or communications between a sexual assault counselor and a victim made confidential by section 90.5035, Florida Statutes, are subject to an in camera review, and are ultimately subject to discovery if the defendant establishes a reasonable probability that the privileged matters contain material information necessary to the defense. In the final analysis, however, the court concluded that the defendant failed to make the requisite factual showing, and quashed the discovery order.


text:
    Abner M. AUST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-3117.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2004.
    Abner M. Aust, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BENTON, PADOVANO and HAWKES, JJ., concur.


text:
    Larry HAYNES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-3643.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 3, 2004.
    Larry Haynes, pro se.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition for writ of certiorari is denied. Petitioner fails to show that the circuit court acting in its appellate capacity violated due process or that it applied the incorrect law in denying petitioner’s motion for belated appeal. See Haines City Community Development v. Heggs, 658 So.2d 528 (Fla.1995).

BROWNING, LEWIS and POLSTON, JJ., concur.


text:
    Reginald C. FITZPATRICK, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1400.
    District Court of Appeal of Florida, First District.
    Sept. 22, 2004.
    Rehearing Denied Nov. 3, 2004.

      Appellant, pro se.
    Charlie Crist, Attorney General, Linda Horton Dodson and Trisha Meggs Pate, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleges that his sentence is illegal because the written pronouncement does not comport with oral pronouncement of his sentence. As this claim lacks merit, we affirm.

On November 6, 1997, after a jury trial, the appellant was sentenced to 10 years in prison as a habitual felony offender for armed burglary and grand theft with a firearm pursuant to section 775.084(3)(a)(6), Florida Statutes (1997). This Court affirmed the appellant’s convictions and sentences by mandate issued on February 1, 1999. The appellant alleges that only the written, but not oral, pronouncement of his sentence reflected a habitual felony offender sentence and, therefore, his ten-year sentence was illegal.

The habitual offender statute provides that once the court finds that the defendant qualifies for habitual offender sanctions, the court “must sentence the defendant as a habitual felony offender ... unless the court finds that such a sentence is not necessary for the protection of the public ... [and] the court shall provide written reasons.” § 775.084(3)(a)(6), Florida Statutes (1997). Because a court must impose a habitual offender sentence upon a finding that one qualifies as such, any uncertainty that arises where the sentencing judge finds that the defendant qualifies as a habitual offender but never explicitly states this fact when imposing a term of imprisonment is eliminated “by virtue of the fact that it did not make a finding that a habitual offender sentence was unnecessary for the protection of the public.” O’Neal v. State, 862 So.2d 91, 93 (Fla. 2d DCA 2003). Additionally, the sentencing judge is not required “to use the magic words, ‘habitual felony offender sentence,’ in order to effectuate a legal sentence where it is obvious the trial court intended to and did impose an habitual felony offender sentence.” Yates v. State, 823 So.2d 273 (Fla. 5th DCA 2002).

The sentencing judge made the oral determination that the appellant met “the criteria to be sentenced as habitual offender.” In the absence of written reasons for not imposing a habitual felony offender sentence and in light of the imposed sentence complying with the habitual offender statute, this finding by the judge was a sufficient oral pronouncement of a habitual offender sentence. Therefore, the appellant’s claim of an illegal sentence was properly denied.

AFFIRMED.

WOLF, C. J., BENTON and VAN NORTWICK, JJ., concur.