author: CANADY, Judge.

text:
    Michael SMITH, Appellant, v. FLORIDA POWER & LIGHT CO., and FPL Group, Inc., Appellees.
    No. 2D02-1883.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.
    Rehearing Denied Oct. 22, 2003.

      Theodore C. Eastmoore and Alan W. Roddy of Matthews, Eastmoore, Hardy, Crauwels & Garcia, P.A., Sarasota, for Appellant.
    Robert E. Boan of Florida Power & Light Co., Miami, and Ralph 0. Anderson, Mark Hicks and Gary A. Magnarini of Hicks, Anderson & Kneale, P.A., Miami, for Appellee Florida Power & Light Co.

      No Appearance for Appellee FPL Group, Inc.
   CANADY, Judge.

Michael Smith appeals the entry of a final summary judgment in favor of Florida Power & Light Co. (FPL) on a negligence claim against FPL by Smith. Because we conclude that the facts of the case presented by Smith do not establish the basis for imposing a legal duty on FPL to protect Smith from the injury he suffered, we affirm the final summary judgment in favor of FPL.

I. FACTS OF THE CASE

Smith’s claim against FPL arose from injuries occasioned by an electrical shock he received at a construction site when power passed from an uninsulated overhead power transmission fine through the boom of a crane while Smith was working below ground and touching the cable of the crane. Smith was working on the construction site as an employee of a general contractor which had entered into a contract with a municipality to install a culvert/drainage system under certain public streets within the municipality.

Prior to entering into the contract, the contractor participated in a prebid meeting attended by other prospective bidders and by an employee of FPL, who had previously — at the request of the municipality'— identified the location of FPL’s poles and overhead and underground lines in the area of the project. At the prebid meeting, the subject of FPL’s overhead lines was discussed and the municipality took the position that the prospective bidders should include the cost of rerouting those lines if the bidder determined that they could not work around the lines. There was deposition testimony that FPL’s representative stated that FPL would charge as much as $20,000 to relocate the power lines at the construction site.

The winning bidder, Smith’s employer, determined that its employees could safely work around the overhead lines and, therefore, decided not to pay for the relocation of those lines. The contractor’s representative testified that “we felt like we could do the job without having to encroach within ten feet,” although “we did want FPL to take the lines down too.” Applicable safety requirements called for maintaining a minimum clearance of ten feet between the overhead lines and any equipment that might be used around those lines. See 29 C.F.R. § 1910.333(c)(3)(iii)(A) (setting forth federal Occupational Safety and Health Act regulation requiring that “[a]ny vehicle or mechanical equipment capable of having parts of its structure elevated near energized overhead lines shall be operated so that a clearance of 10 ft. (305 cm) is maintained”).

Subsequent to the award of the contract, a preconstruction meeting was held to discuss various issues, including the potential impact of the project on existing utilities. At this meeting, a representative of FPL once again identified its power lines in the area of the project. The minutes of the meeting reflect that the contractor “does not anticipate any difficulty regarding clearance from the overhead lines and they will hand excavate in the vicinity of the underground lines.” The FPL representative who attended the preconstruction meeting testified in deposition that he had no knowledge concerning the “methodology of construction that the contractor planned to use,” that he had no understanding regarding “how closely the construction company was going to be working to” the power lines at the project site, and that he had no knowledge that cranes were to be used in the project. The FPL representative further testified: “The lines are visible. The lines were shown on the construction drawings. There was no contact between myself or the contractor indicating that there was any problem with clearances.” Smith submitted no evidence contradicting the testimony of the FPL representative.

The evidence before the trial court was also uncontroverted that FPL’s uninsulated overhead power lines at the project site complied with all applicable safety codes, rules, and ordinances regarding construction, location, and height. The lines were clearly visible and in plain view of the workers at the site, including the crane operator. There was testimony that the workers were aware the lines were energized, but Smith testified that he believed the power lines were not energized. Moreover, those responsible for the operation of the crane knew that a minimum ten-foot clearance from the energized lines had to be maintained. The operator of the crane himself testified that the crane bore placards regarding the ten-foot clearance requirement.

On the date of the accident causing Smith’s injuries, the crane was being used to lift and set box culverts in a trench and to move the “tugger” — a piece of equipment used to pull the box culverts together in the trench. Smith was underground in one of the culverts assisting in the placement of the tugger. Smith’s last memory before suffering his injury was of holding the crane cable. As the operator of the crane attempted to move the tugger, the cable coming from the top of the crane’s boom came too close to the energized power lines overhead. As a result, current from the lines flowed through the cable into Mr. Smith, causing him devastating injuries.

There was testimony that FPL vehicles visited or passed by the construction site during the construction project. An employee of the contractor testified that on one occasion an FPL vehicle came by the construction site at a time when the crane was present. According to his testimony, however, there was no work being done “in close proximity to the overhead power lines” and the boom of the crane was pointed away from the lines when the FPL vehicle was present.

In opposition to FPL’s motion for summary judgment, Smith filed the affidavit of an electrical engineer expressing the opinion that “FPL could have avoided this accident” in at least three different ways: 1) by placing reusable sleeves or insulators on the power lines; 2) by opening switches on the power poles immediately adjacent to the project site; or 3) by switching power from the “outer line nearest the crane” to the middle line located on the power poles at the site. In addition, Smith presented evidence that FPL on occasion used rubber “eels” to protect FPL employees and others working in the vicinity of FPL’s power fines.

Smith’s complaint against FPL alleged that FPL owed Smith a duty to ensure that: “a. electricity did not flow from and/or through the power fines, b. the power fines were shielded, c. the power fines were properly secured, d. the flow of electricity was rerouted, e. the power fines were safe, and/or f. appropriate actions were taken regarding the power fines.” FPL moved for summary judgment and argued that “there is no recognized duty which has been breached by [FPL], and that FPL’s allegedly negligent conduct was not the proximate cause of the harm suffered by Smith.” After conducting a hearing and considering the affidavit and deposition testimony filed by the parties, the trial court determined that there was no “genuine issue of material fact ... on the duty issue, given the apparently conceded fact that nobody involved needed Florida Power & Light to do anything.”

II. STANDARD OF REVIEW

A final order granting a motion for summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). “When reviewing a summary judgment, we must view the facts in the light most favorable to the nonmoving party.” Garden St. Iron & Metal, Inc. v. Tanner, 789 So.2d 1148, 1149 (Fla. 2d DCA 2001). In a negligence case, the de novo review of a summary judgment is guided by the principle that “[sjummary judgments should be cautiously granted.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Summary judgment is only appropriate if the moving party has met the burden of conclusively proving the nonexistence of “genuine triable issues.” Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966).

III. ANALYSIS

A. The Framework for Establishing a Legal Duty

The starting point for our analysis of this case is the decision of the Florida Supreme Court in McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992), where the court provided a “restatement of the law of negligence,” Whitt v. Silverman, 788 So.2d 210, 218 (Fla.2001), in the context of a case involving the issue of power company liability for injuries sustained from contact with an underground power cable. McCain is particularly pertinent here both because of the general principles it articulates concerning the duty element in tort actions and because of the fact pattern present in the case. Those general principles govern our analysis of the dispositive issue, while the facts of McCain stand in contrast to the facts of this case.

Central to McCain’s treatment of duty is the concept of “zone of risk” — a concept earlier articulated by the supreme court in Stevens v. Jefferson, 436 So.2d 33 (Fla.1983), and Kaisner v. Kolb, 543 So.2d 732 (Fla.1989). Under the framework set forth by the supreme court, the zone of risk created by a defendant defines the scope of the defendant’s legal duty and the scope of the zone of risk is in turn determined by the foreseeability of a risk of harm to others. “The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader ‘zone of risk’ that poses a general threat of harm to others. See Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983)).” McCain, 593 So.2d at 502.

Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others. As we have stated:
Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.
Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d at 35 (Fla.1983)) (emphasis added).

McCain, 593 So.2d at 503. The duty element “is a minimal threshold legal requirement for opening the courthouse doors.” Id. at 502 (footnote omitted). The legal threshold for imposing a duty on a defendant is, however, crossed only when it is established that the defendant “more likely than not” created a foreseeable zone of risk. Id. at 503.

This analytical framework — where foreseeablity is crucial — is premised on a recognition that duty is a relational concept. A duty is owed by a particular defendant to a particular plaintiff based on particular circumstances. The ‘“reasonable specific foreseeability of a general zone of risk to a given [p]laintiff is an objective test ... that recognizes that more is required than the mere general risk of injury that is concomitant to all human activity.’ ” Gath v. St. Lucie County—Fort Pierce Fire Dist., 640 So.2d 138, 140 (Fla. 4th DCA 1994) (Anstead, J., concurring) (quoting trial court order). In Palsgraf v. Long Island Railroad, 248 N.Y. 339, 162 N.E. 99 (1928), Justice Cardozo succinctly articulated the fundamental principles on which the framework in McCain is based:

[T]he orbit of the danger as disclosed to the eye of reasonable vigilance would be the orbit of the duty....
... The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension....
.... One who seeks redress at law ... must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it....

Palsgraf, 162 N.E. at 100-01.

Foreseeability also plays a role in the analysis of the proximate cause element of a negligence claim. But the proximate cause foreseeability determination differs in important respects from the duty foreseeability determination. In the duty context, foreseeability is a question of the general threat of harm to others. In the proximate cause context, foreseeability focuses on “whether the specific injury [to the plaintiff] was genuinely foreseeable or merely an improbable freak.” McCain, 593 So.2d at 504. The duty foreseeability issue is a legal question and thus is to be determined by the court; the proximate cause foreseeability issue is a fact question which ordinarily is to be determined by the trier of fact. Id.

B. Circumstances Where a Duty Is Imposed on a Power Company

The McCain court applied this framework to circumstances where the plaintiff was injured when “the blade of a mechanical trencher he was operating struck an underground [power company] electrical cable,” after an employee of the power company had “marked those areas where it would be safe to use the trencher.” Id. at 501. The supreme court concluded that the district court had erred in ordering the entry of a directed verdict in favor of the power company. On the issue of duty, the supreme court stated that the power company “clearly was under a duty to take reasonable actions to prevent the general type of injury that occurred here.” Id. at 502.

Here, there can be no question but that [the power company] had the ability to foresee a zone of risk. By its very nature, power-generating equipment creates a zone of risk that encompasses all persons who foreseeably may come in contact with that equipment. The extensive precautionary measures taken by [the power company] show that it understood or should have understood the extent of the risk involved. The very fact that [the power company] marked the property for McCain itself recognizes that McCain would be within a zone of risk while operating the trencher.
While it is true that power companies are not insurers, they nevertheless must shoulder a greater-than-usual duty of care in proportion to the greater-than-usual zone of risk associated with the business enterprise they have undertaken. Escambia County Elect. Light & Power Co. v. Sutherland, 61 Fla. 167, 55 So. 83 (1911). Electricity has unquestioned power to kill or maim. This is the precise reason the duty imposed upon power companies is a heavy one, because the risk defines the duty. Cobb v. Twitchell, 91 Fla. 539, 108 So. 186 (1926). Thus, if there is any general and foreseeable risk of injury through the transmission of electricity, the courts are not free to relieve the power company of this duty.

Id. at 504.

McCain is one of numerous Florida cases to reject a power company’s assertion that it owed no duty to a plaintiff to protect against injuries sustained from contact with the power company’s electrical transmission system. Those cases involve four broad — and sometimes overlapping — fact patterns which are discussed below. The division of the cases into these four categories is helpful because it illustrates the types of knowledge that have been found sufficient to impose a duty on a power company. Although some of the cases were decided before McCain’s restatement of the law of negligence, their holdings with respect to the duty element are consistent with the principles set forth in McCain. These cases determine that the power company had a duty to protect a plaintiff against a particular risk where the power company had knowledge of the circumstances that posed a threat to the safety of the plaintiff and others. They turn on the power company’s “ability to foresee a zone of risk,” McCain, 593 So.2d at 504, and they impose a duty on the power company to protect the plaintiff when the power company “more likely than not” created a “foreseeable zone of risk.” Id. at 503.

The first category of cases — and perhaps the most common among the reported decisions — encompasses the cases in which the plaintiffs injury is sustained during the course of work being performed for the power company. These cases provide particularly compelling circumstances for the imposition of a duty on the power company, since the power company’s knowledge of the work for which it has contracted to be performed on or in proximity to its power lines easily establishes that the risk to the individuals engaged in that work was foreseeable by the power company. See Fla. Power & Light Co. v. Brinson, 67 So.2d 407 (Fla.1953); Vanlandingham v. Fla. Power & Light Co., 154 Fla. 628, 18 So.2d 678 (1944); Keeley v. Fla. Power & Light Co., 610 So.2d 28 (Fla. 2d DCA 1992); Ahearn v. Fla. Power & Light Co., 129 So.2d 457 (Fla. 2d DCA 1961); Feagle v. Fla. Power & Light Co., 464 So.2d 1247 (Fla. 1st DCA 1985).

The second category covers those cases involving an alleged violation of an applicable safety code. These cases are subject to the general rule that if a statute, ordinance, or regulation is designed to protect the class of persons of which the plaintiff is a member against the type of injury which the plaintiff has suffered, then the defendant’s violation of that statute, ordinance or regulation will be considered per se negligence. deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla.1973); Golden Shoreline Ltd. P’ship v. McGowan, 787 So.2d 109 (Fla. 2d DCA 2001); Concord Fla., Inc. v. Lewin, 341 So.2d 242 (Fla. 3d DCA 1976). If a safety code is applicable to the particular conduct of a power company and a violation of that code is asserted as the basis for imposing liability, the court will ordinarily be precluded from determining that the defendant had no duty to the plaintiff. The defendant power company is, as a matter of law, ordinarily presumed to have knowledge — and as a practical matter will have knowledge — of the circumstances that bring the company within the ambit of the requirements of the safety code. Any injuries sustained as a consequence of a violation of a governing safety code will accordingly ordinarily be injuries falling within a zone of risk that was foreseeable by the defendant power company. See Pacheco v. Fla. Power & Light Co., 784 So.2d 1159 (Fla. 3d DCA 2001); Jones v. Fla. Power & Light Co., 552 So.2d 284 (Fla. 4th DCA 1989).

The third category of cases imposing a duty includes those in which the power company performs some action to protect against a known danger posed by its lines but does so in a manner that the plaintiff alleges was insufficient. In this category, the power company not only has knowledge of the particular circumstances which give rise to the risk but also specifically undertakes to protect against the risk in question. The power company’s action, which purports to provide safety, itself creates a zone of risk that is foreseeable when it is inadequate to protect against harm to the plaintiff. McCain is a prime example of this category. See Pacheco, 784 So.2d 1159; Bell v. Fla. Power & Light Co., 106 So.2d 224 (Fla. 3d DCA 1958); see also Paszamant v. Ret. Accounts, Inc., 776 So.2d 1049, 1053 (Fla. 5th DCA 2001) (noting that in McCain power company “created a ‘zone of risk’ when it created the ‘safe zone,’ ” and power company “had the duty to avoid negligent marking of an area when it knew [plaintiff] would be relying upon those marks to avoid injury”).

The cases in the final category involve circumstances where the power company has knowledge of existing conditions or recurring activities in proximity to the company’s lines that foreseeably create a risk of injury. If the power company knows that its fines are maintained in a location where conditions exist or a pattern of activity is ongoing that threatens the safety of persons such as the plaintiff, a duty will be imposed on the power company to protect the plaintiffs safety. Even in the absence of actual notice, the power company’s responsibility to maintain its lines places it on constructive notice that those lines are located in proximity to more or less permanent conditions on the land or to recurring activities that pose a safety threat. See Duff v. Fla. Power & Light Co., 449 So.2d 843, 844 (Fla. 4th DCA 1984) (noting that propriety of maintenance of “uninsulated electrical wires ... near residential property” turns on “their location in the particular setting, which includes the typical activities occurring there,” and reversing summary judgment in favor of power company because “it cannot be said as a matter of law” that the “installation of an antenna[] [in a residential area] was unforeseeable”); Fries v. Fla. Power & Light Co., 402 So.2d 1229, 1230 (Fla. 5th DCA 1981) (reversing summary judgment in favor of power company where there was disputed issue of material fact concerning, inter alia, “whether the defendant power company knew, or should have known, that in the vicinity where this accident is alleged to have occurred, the waters of [the river] are navigable and frequented by many sailing vessels”); see also Rist v. Fla. Power & Light Co., 254 So.2d 540, 542 (Fla.1971) (holding that plaintiffs allegations that power company “negligently maintained its uninsulated power fine outside of its easement and dangerously close to the fight standard,” and “affidavits of experts that this was contrary to good engineering installation procedures” precluded summary judgment in favor of power company).

C. Limitations on the Scope of a Power Company’s Duty

Although the cases acknowledge that power companies have a broad duty to protect against harm threatened by their power lines, Florida law has also consistently recognized that power companies are not insurers against all harm that may be occasioned by contact with their power lines. See McCain, 593 So.2d at 504 (noting that “power companies are not insurers” although they “must shoulder a greater-than-usual duty of care”); Vanlandingham, 18 So.2d at 680 (stating that “[t]he law does not make defendant [power company] an insurer but only requires the exercise of a [degree] of care commensurate with the circumstances of the occasion”). The case law also has long specifically recognized that power companies do not have a generally applicable duty to insulate their power lines. See Reardon v. Fla. W. Coast Power Corp., 97 Fla. 814, 120 So. 842, 844 (1929) (holding that “[t]he fact that the wires of the power company at the place of the accident were uninsulated and elevated only 24 feet above the ground ... is not of itself a negligent act”); cf. Hardware Mut. Cas. Co. v. Tampa Elec. Co., 60 So.2d 179, 181 (Fla.1952) (stating that “propriety of the use of exposed wires must depend on their location,” but that there is “no clearer illustration of the need of insulation than of wires running through or within reach of bearing trees in a citrus grove”).

The foreseeable zone of risk created by energized power fines is appropriately broad, but it is not limitless. Power companies are subject to a greater-than-usual duty of care, but the existence of a duty owed by the power company to a particular plaintiff depends on the power company’s knowledge of a risk posed to the plaintiff by the company’s power fines. Such a legal duty may only be imposed if the defendant power company more likely than not created a foreseeable zone of risk with respect to a particular plaintiff. To impose a duty on the defendant power company, however, it is not necessary to establish that “the specific injury [suffered by the plaintiff] was genuinely foreseeable.” McCain, 593 So.2d at 504.

Not everyone who may be injured by contact with a power fine is owed a duty by the power company to provide protection against injury. A threshold determination must be made that persons in the circumstances of a particular plaintiff were as a matter of law within a foreseeable zone of risk created by the defendant power company. The existence of uninsulated, energized power fines does not create a foreseeable zone of risk with respect to every potential plaintiff who may suffer injury by coming into contact with those fines. But see Pacheco, 784 So.2d at 1162 (stating that “[i]t is obvious that the danger of coming in contact with an electrified fine — by whatever means — falls squarely within the ‘zone of risk’ ”).

The boundaries of duty in this context are illustrated by Rice v. Florida Power & Light Co., 363 So.2d 834 (Fla. 3d DCA 1978), which affirmed a summary judgment for the power company in a wrongful death case. The decedent in Rice was electrocuted when his model plane made contact with power lines and electrical current passed through the wires connecting the plane to the controls he was holding. The testimony of persons accompanying the victim indicated that, although they did not notice the overhead power fines prior to the accident, “the wires were clearly visible once one looked up a[t] them.” Id. at 836. There was also “[u]ncontradicted evidence that the fines were placed in accordance with acceptable engineering practice.” Id. at 837. The evidence further showed that “a model airplane attached to a hand control instrument ha[d] been flown over the field [where the accident occurred] at least once prior to the accident, but nothing in the record show[ed] that [the power company] had any actual notice of that fact.” Id. at 837. Additional evidence showed that kites and other model planes had previously been flown in the area, but there was an absence of evidence that the power company had actual knowledge of those activities. Id. at 838.

After noting the rule that power companies do not have a general duty to insulate their power lines, the Rice court focused on two circumstances: 1) the power company’s lack of actual knowledge of dangerous activities; and 2) the proper location and installation of the lines. On the basis of those factors, the district court determined that the summary judgment in favor of the power company should be affirmed.

[W]e conclude that, as a matter of law, it would be beyond the bounds of reason to require [the power company] to foresee an occurrence such as that presented by the instant case. Had a clear view of the exposed lines not existed, or had [the power company] had actual notice that individuals were flying model airplanes attached to electrical conductors, the changed use of the underlying property might have been sufficiently persuasive to leave the questions of the existence of a duty and a breach of that duty for the resolution of a jury.
While endorsing the high degree of care to which a power company is held, we decline to impose a continuing duty to protect against any and all activity, however unlikely, occurring in the vicinity of lines which were initially located and installed in a reasonable manner. We hold that [the power company’s] maintenance of its wires in the place and under the conditions described herein did not fall beneath the level of prudent foresight required of a supplier of electricity. Therefore, as a matter of law, appellee breached no duty owed the decedent.

Id. at 839 (emphasis supplied).

The Rice decision relied on Richmond v. Florida Power & Light Co., 58 So.2d 687 (Fla.1952), which rejected a claim that a power company had a duty to post warning signs or to place guards around its uninsulated power lines. In Richmond, the plaintiff argued that the power company had a duty to take those steps to protect against injuries suffered by someone in a residential area operating a box kite with a long copper wire which made contact with power lines that were in plain view. Affirming the summary judgment entered in favor of the power company, the Richmond court said:

The inherent danger of electrically energized wires is well known to all except those of tenderest age, but ... the need for successful distribution of so necessary a commodity cannot be defeated by requiring that every conceivable protection be afforded wherever wires carrying it may go, so that anyone who chances to come near may be saved from injury in anything he decides to do, however unpredictable. That would be one extreme. An illustration of the other would be the maintenance of exposed wires low to the ground where children [customarily] gathered.
Between the two would arise the situations where responsibility, or none, would be the question. From our study of the cases we are convinced that no set rule can be defined; that each must be determined according to the facts peculiar to it.

Id. at 688.

A trial court’s determination that a power company had no duty to protect against the injuries sustained by a plaintiff has been affirmed in other cases where the power company did not have either actual or constructive knowledge of a danger sufficient to establish that the company more likely than not created a foreseeable zone of risk. See Lopez v. Fla. Power & Light Co., 501 So.2d 1339, 1341 (Fla. 3d DCA 1987) (affirming directed verdict for power company due to absence of duty where plaintiffs expert “was unable to find a violation by [power company] of any applicable code, regulation, or standard of care,” and “danger of working near electrical wires with a metal implement” should have been “manifest” to the deceased who made contact with overhead power line while reaching for avocados with sixteen-foot metal picker); Dudding v. Fla. Keys Elec. Coop. Ass’n, 105 So.2d 597, 598-99 (Fla. 3d DCA 1958) (affirming directed verdict for power company where after passing under bridge plaintiff raised aluminum outrigger of boat causing it to come into contact with “uninsulated high tension wires spanning” creek, and testimony of boat captain established that “there was no reason for the [plaintiff] to have raised the outrigger at the place that he did, and that it had been their custom not to raise the outriggers until they were a considerable distance away from the bridge,” and court could not “conceive how the [defendant] could have reasonably foreseen the actions of the [plaintiff]”).

IV. APPLICATION OF THE LAW

The plaintiff in the case under review argues that FPL’s knowledge concerning the construction activities at the site where he was injured was sufficient to establish that he was in a foreseeable zone of risk created by FPL and thus sufficient to impose a duty on FPL to protect the plaintiff against injuries caused by contact with FPL’s fines during the course of the construction work. There are two aspects to the plaintiffs argument concerning FPL’s knowledge. One aspect focuses on FPL’s knowledge that a construction project was to take place in the vicinity of its fines. It is, of course, undisputed that FPL had such knowledge. The plaintiff argues that this general knowledge that construction activities were to occur at a particular site in effect gave FPL notice of whatever activities might be undertaken — including the unsafe use of a crane under FPL’s power lines — in connection with the construction job. The second aspect of the plaintiffs argument regarding FPL’s knowledge focuses on the evidence that on at least one occasion an FPL truck was seen passing the construction site when a crane was at the site. We conclude that both aspects of the plaintiffs argument concerning FPL’s knowledge are unpersuasive.

Under the principles set forth in McCain, and in light of the other case authority concerning the circumstances where a duty is imposed on a power company, we hold that a power company’s general knowledge that a construction project will be undertaken in proximity to the power company’s fines is not alone sufficient to establish that the power company more likely than not created a foreseeable zone of risk with respect to persons engaged in work on the construction project. Such general knowledge is, of course, distinguishable from the specific knowledge that a power company has concerning construction projects for which it has itself contracted. We further hold that the mere fact that a vehicle bearing the name of the power company was seen passing the construction site when a crane was at the site is not sufficient to establish that the power company had knowledge that the crane would be used under its power fines in an unsafe manner — or in any other manner.

Acceptance of the plaintiffs contention concerning FPL’s general knowledge of the construction project would render power companies virtual insurers of all construction activities taking place in proximity to their power lines. It would impose a burden on power companies that goes beyond even the recognized “greater-than-usual duty of care” owed by power companies which is proportionate to the “greater-than-usual zone of risk associated with the business enterprise they have undertaken.” McCain, 593 So.2d at 504. It would place an obligation on power companies to investigate every proposed or potential activity that might be undertaken in connection with any construction job of which the power company has notice, to evaluate the risk associated with those activities, and to take steps to protect against those risks. The burden associated with that obligation would be onerous and would exceed the burden that is properly borne for risks associated with a foreseeable zone of risk more likely than not created by the power company. A power company does not more likely than not create a foreseeable zone of risk with respect to every potential activity that may take place in proximity to its power lines during a construction job of which the company has notice. To impose a duty with respect to all such activities would extend the “orbit of the duty” far beyond the “orbit of the danger as disclosed to the eye of reasonable vigilance” — even in the context of the greater-than-usual zone of risk associated with power lines. Palsgraf, 162 N.E. at 100.

The mere fact that a crane is located on a job site when a power company vehicle passes the site does not establish that the power company had actual knowledge that the crane would be used under the company’s lines. And it is beyond the bounds of reason to charge a power company with constructive notice of every circumstance that might arise in connection with the use of equipment which is located on a job site when a power company vehicle happens to pass by. Again, the position urged by the plaintiff would place an obligation on a power company to conduct an investigation of the potential use of that equipment, evaluate the risk, and take steps to protect against the risk. All of this would flow from the bare circumstance that one of the power company’s vehicles passed by the construction site when a crane was located there but when no work was being done “in close proximity to the overhead power lines” and the boom of the crane was pointed away from the lines. Whatever knowledge might be attributable to the power company based on one of the company’s vehicles passing by the construction site under such circumstances is far too tenuous to support the legal conclusion that the company more likely than not created a foreseeable zone of risk associated with activities occurring at the construction site.

The circumstances of the case presented by the plaintiff are far different from the circumstances involved in the cases where a legal duty has been imposed on a power company to protect against injury caused by contact with the company’s power lines. This case does not involve work performed for FPL. Here there is no allegation that FPL violated any safety code. There is no claim that FPL undertook to protect against a particular risk posed by its lines during the construction work and did so in an inadequate manner. And there is no evidence that FPL had knowledge of existing conditions or recurring activities in proximity to its lines that foreseeably created a risk of injury.

This is not a case where FPL had knowledge that a crane was being used under its lines in an unsafe manner. Indeed, this is not a case where FPL had knowledge that a crane was being used under its lines in any manner. The plaintiff urges in effect that FPL “should have known” that the crane would be used under its energized lines and that this issue involves a fact question that cannot properly be resolved on summary judgment. In reviewing the summary judgment in favor of FPL, we accept as true all of the facts adduced by the plaintiff. Although the court, in determining whether the defendant owes the plaintiff a duty, “must make some inquiry into the factual allegations,” the question of duty ultimately remains a legal issue. McCain, 593 So.2d at 502. The trial court correctly determined that as a matter of law the facts adduced by Smith are not sufficient to impose a duty on FPL. As a matter of law, it is not proper to push the concept of constructive notice — and the concept of zone of risk — to the extreme advocated by the plaintiff. No Florida case has held that a power company had constructive notice of a danger — and therefore had a duty to protect against the danger — under circumstances akin to those present in this case.

V. CONCLUSION

We decline to extend the scope of the traditional liability of power companies by imposing a duty on FPL under the circumstances presented by this case. Since FPL had no duty to protect against the injuries suffered by the plaintiff, the final summary judgment in favor of FPL is affirmed.

Affirmed.

NORTHCUTT and STRINGER, JJ., Concur.


source: Caselaw Access Project

author: COVINGTON, Judge.

license: Public Domain

text:
    James C. BULLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1503.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2003.
    Rehearing Denied Oct. 10, 2003.
   COVINGTON, Judge.

James C. Bulley appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. As part of a timely filed motion for rehearing of the denial, Bulley filed a motion to enlarge time to file a supplement and a motion to supplement his rule 3.850 motion. Because the motion to enlarge and motion to supplement were filed in a timely manner, the trial court should have considered the additional facts raised in Bulley’s motion to supplement. Accordingly, we reverse the trial court’s orders and remand for further proceedings.

I. FACTS

On April 16, 1998, Bulley was convicted of burglary of a dwelling, kidnapping, and sexual battery. On June 4, 1998, he was sentenced as a habitual felony offender to thirty years’ prison on the burglary charge and fifty years’ prison on the kidnapping and sexual battery charges. This court affirmed Bulley’s convictions and sentences, Bulley v. State, 780 So.2d 67 (Fla. 2d DCA 2000) (table decision), and issued its mandate on January 3, 2001. Bulley submitted an initial sworn motion for post-conviction relief alleging ineffective assistance of counsel, bearing a certificate of service date of January 3, 2003. The trial court accepted the initial sworn motion as timely and summarily denied it on the merits as facially insufficient on January 22, 2003.

Bulley then filed a timely motion for rehearing, bearing a certificate of service date of February 7, 2003. The motion for rehearing was filed on February 11, 2003, and had two attachments: (1) an unsworn motion for enlargement of time, bearing a certificate of service date of January 9, 2003; and (2) a sworn supplement to his initial motion for postconviction relief, bearing a certificate of service date of January 7, 2003.

The court determined that the attached motion for enlargement was filed simultaneously with the motion for rehearing. The court noted, however, that the motion for enlargement of time did not appear on the Criminal Justice Information System Docket Screen. Accordingly, the court filed the attached motion for enlargement nunc pro tunc to February 11, 2003, and denied the motion for rehearing.

The trial court also denied the attached motion to supplement. The order stated that the supplement was filed on February 11, 2003, and denied it because: (1) Bul-ley’s initial rule 3.850 motion was already denied on its merits on January 22, 2003, and therefore there was no pending motion for postconviction relief; and (2) the supplement was untimely because the time period to file the rule 3.850 motion expired on January 3, 2003.

II. ANALYSIS

The question presented in this appeal is whether Bulley’s motion to enlarge and motion to supplement were timely filed. Under the “mailbox rule,” announced in Haag v. State, 591 So.2d 614, 617 (Fla.1992), a pro se postconviction, relief motion is deemed filed on the date the inmate relinquished control of the document to State officials for delivery. In addition, the date reflected on the certificate of service is presumed to be the date on which the document is filed. Thompson v. State, 761 So.2d 324, 326 (Fla.2000). Bulley’s motions were timely filed and therefore should have been considered by the trial court.

In Thompson, the defendant filed a notice to invoke discretionary jurisdiction reflecting a timely date in the certificate of service. 761 So.2d at 325. The file stamp, however, reflected a date that made the defendant’s notice untimely. Id. Since the notice was not physically filed within the required time period, the Florida Supreme Court denied the defendant’s petition for review as untimely. Id. The court granted the defendant’s motion for reinstatement, however, holding that the date reflected on the certificate of service is presumed to be the date on which the document is filed. Id. at 326.

Although the court noted that inmates are generally required to provide additional documentation, such as a copy of the institution’s outgoing mail log, the court pointed out that there is no official requirement for institutions to do so. Id. Moreover, the court noted that generally mail logs do not comply with the procedures set forth in Haag because the date recorded in the log is usually the date the document is mailed, and not the date the inmate actually releases the document to State officials. Thompson, 761 So.2d at 326. Thus, defendants at institutions that do not comply with Haag procedures, or do not keep a mail log at all, are unable to prove that they turned over the document to State officials in a timely manner. Thompson, 761 So.2d at 326.

The Thompson court held that the relevant date for the purposes of the mailbox rule is not the date the document is mailed, but rather the date the document leaves the defendant’s control. Id. Consequently, in the interest of staying true to its intent in Haag, the court held that the date reflected on the certificate of service is now presumed to be the date the document is placed in the hands of State officials. Thompson, 761 So.2d at 326. This presumption shifts the burden to the State to prove the document was not relinquished in a timely fashion to State officials. Id. The Florida Supreme Court codified the ruling in Thompson by amending Florida Rule of Appellate Procedure 9.420, tracking verbatim the language in the case. Fla. R.App. P. 9.420(a)(2).

In the instant case, Bulley’s certificates of service reflect dates of January 7, 2003, for the supplement to his initial motion for postconviction relief, and January 9, 2003, for the motion for enlargement of time. Therefore, pursuant to Thompson, these are the presumed filing dates for these motions. See 761 So.2d at 326. Although Bulley’s supplement is presumed filed January 7, 2003, the two-year rule does not bar the enlargement of issues raised in a timely sworn initial motion for postconviction relief if the amendment is filed prior to the court’s disposition of the motion. See Rogers v. State, 782 So.2d 373, 376 n. 7 (Fla.2001) (holding in part that the two-year limitation does not preclude enlargement of issues in a timely filed initial motion for postconviction relief); Brown v. State, 596 So.2d 1026, 1027 (Fla.1992) (holding that the two-year limitation for filing a motion to vacate does not preclude the enlargement of issues raised in a timely filed motion for postconviction relief); Graham v. State, 846 So.2d 617, 618 (Fla. 2d DCA 2003) (holding that a timely filed rule 3.850 motion, prior to its disposition, may be amended even after the two-year period for a timely filed initial motion has run).

Furthermore, although Bulley alleges that his prison does not keep an outgoing mail log, the dates on his certificates of service alone are sufficient to establish a presumption of timely filing. See Martin v. Dep’t of Revenue ex rel. Martin, 827 So.2d 367, 368 (Fla. 2d DCA 2002) (holding that a petition that reflects a timely certificate of service date is sufficient to invoke the mailbox rule); Wimbush v. Pasco County Sheriff's Office, 829 So.2d 296, 297 (Fla. 2d DCA 2002) (holding in part that Thompson essentially eliminated the need for independent proof to corroborate the date reflected on the defendant’s certificate of service). Consequently, since both motions are presumed filed prior to the court’s January 22, 2003, order, the motion to enlarge and the motion to supplement were timely filed.

Generally, an evidentiary hearing on an ineffective assistance of counsel claim is warranted if the defendant alleges specific facts that are not conclusively refuted by the record and demonstrate a deficiency in the performance that prejudiced the defendant. See Ragsdale v. State, 720 So.2d 203, 207 (Fla.1998); Pugh v. State, 804 So.2d 1278, 1279-80 (Fla. 2d DCA 2002) (holding that a defendant is entitled to an evidentiary hearing on his postconviction relief claims unless the record conclusively refutes his claims or the motion is legally insufficient). However, because the trial court did not first consider Bulley’s motion to supplement and any timely-raised claims therein, we do not reach the issue of whether Bulley’s ineffective assistance of counsel claims warrant an evidentiary hearing on the merits.

Accordingly, we reverse the trial court’s order denying Bulley’s motion for rehearing and motion to supplement, and remand for further proceedings to consider the motion to supplement. If the motion is summarily denied, the trial court must attach portions of the motions, files, and records that conclusively refute Bulley’s claims, unless the motion is facially or legally insufficient. Otherwise, the trial court must conduct an evidentiary hearing to consider the motion to supplement on its merits. See Fla. R.Crim. P. 3.850(d).

Reversed and remanded.

NORTHCUTT and WALLACE, JJ., concur.


author: SCHWARTZ, Chief Judge.

text:
    Mary DEROVANESIAN, Appellant, v. Jack DEROVANESIAN, et al., Appellees.
    No. 3D02-929.
    District Court of Appeal of Florida, Third District.
    Aug. 27, 2003.

      Berman & Kean and Richard E. Berman (Fort Lauderdale); Bunnell, Woulfe, Kirshbaum, Keller, McIntyre & Gregoire and Nancy Gregoire (Fort Lauderdale), for appellant.
    Todd Derovanesian, Jr.; Martin Dero-vanesian, in proper persons.
    Before SCHWARTZ, C.J., and LEVY and WELLS, JJ.
   SCHWARTZ, Chief Judge.

Mary Derovanesian, the only daughter of Dr. Zevart Manoyian who died at 83 on December 24,1999, appeals from a probate judgment which invalidated an amended trust and pour-over will executed by Dr. Manoyian on August 18, 1999, as the product of undue influence asserted by the appellant upon the decedent. The 1999 will and trust effected a significant change from similar instruments Dr. Manoyian executed in 1990, which had divided her 2.3 million dollar estate equally among Mary and her three brothers, by leaving the brothers only about $75,000.00 each with Mary to receive the rest of the estate. We reverse because of our determination that the record does not, as is required to set aside a properly executed will, make it “clearly [appear] that the free use and exercise of the testator’s sound mind in executing [her] will was in fact prevented by deception, undue influence, or other means.” In re Carpenter’s Estate, 253 So.2d 697, 704 (Fla.1971). Indeed no cognizable showing to that effect was made at all.

There is no question that there was no direct evidence that Mary exercised any influence, let alone undue, upon her mother in making the disposition in her favor. To the contrary, the appellees relied below and here only upon what may be called Carpenter inferences to that effect which arise from evidence that Mary played a part in securing the attorney who drew the 1999 instruments, was present when they were executed, and (along with many others) was aware of their contents both before and after their execution. We find, however, that those inferences were more than overcome by Mary’s reasonable explanation for this involvement — that she merely responded to the wishes of her mother with whom, alone among the siblings, she was living during the decedent’s last illness, and — much more significantly — by uncontradicted direct evidence that the 1999 documents were the product of her own free and independent will. In more or less ascending order of importance:

1. There was uncontroverted evidence that Dr. Manoyian, a remarkable person who was one of the first female physicians in Florida, was an indomitable, fiercely independent individual, who was peculiarly unsusceptible to the influence of others, and who retained that individuality and strength of mind (and even practiced medicine) after she was diagnosed with terminal stomach cancer and up to perhaps only a few weeks before her death. Compare, In re Reid’s Estate, 138 So.2d 342 (Fla. 3d DCA 1962), overruled in part on other grounds, In re Carpenter’s Estate, 253 So.2d 697 (Fla.1971).

2. Direct, again unimpeached, testimony of the attorneys who drew the 1999 documents was adduced that they correctly reflected an exercise of her uninfluenced desire as to the disposition of her estate. See Langford v. McCormick, 552 So.2d 964 (Fla. 1st DCA 1989), review denied, 562 So.2d 346 (Fla.1990).

3. What we regard as most significant of all, there was undisputed testimony from a variety of witnesses, including two of the doctor’s closest friends, Mr. and Mrs. Pilafian, another friend who acted as her handyman, Cal Atkins, and even one of the appellees that — well before she signed the 1999 documents and, in the case of the Pilafians, well before Mary had anything to do with the matter — the decedent had not only expressed her desire to do what the instruments did, favor Mary over her three brothers, but that she had very good reasons for doing so: Mary needed the money and her sons, each of them an independently wealthy professional man, did not. As Mr. Pilafian said:

Q. Did you ever talk to Dr. Manoyi-an after 1997 about what she intended to do with her estate?
A. It would come up about every time we would meet. I represented her in real estate ventures and she would also mention that she wanted to make up an estate. The primary reason was I want to make sure that my daughter Mary is well taken care of.
Q. Did she tell you about whether she wanted to leave any money to her boys versus whether she wanted to leave any money to Mary?
A. At one time when she told me, she says, I don’t care about taxes. She says, let everybody pay their own taxes. They’re all millionaires in their own rights.

The face of this evidence leaves us in no doubt that the disposition complained of was, in legal contemplation, not the result of anything but the decedent’s own wishes.

Of the numerous Florida cases which might be cited in support of this conclusion, Langford, 552 So.2d at 964, is among the most persuasive. Reversing a trial court’s finding of undue influence, the court said:

One asserting that a testamentary disposition was the product of undue influence bears a heavy burden. The “undue influence must amount to over persuasion, duress, force, coercion or artful or fraudulent contrivances to such a degree that there is a destruction of free agency and willpower.” [Emphasis added.] Jordan v. Noll, 423 So.2d 368, 370 (Fla. 1st DCA 1982), citing Williamson v. Kirby, 379 So.2d 693. Hence, the crucial issue is whether the record before us contains evidence legally sufficient to support a finding that Anava McCormick’s “free agency and willpower” were destroyed by the actions of appellant and other members of the Langford family at the time she made the September will.
Even though Anava’s brothers or niece may have “planted the seed” for her change in disposition of her estate from that set forth in the March will, proof of that fact alone does not satisfy the burden of proof. The evidence must also show that, having so planted the seed, the brothers and niece exercised sufficient influence over her mind that Anava was deprived of her own free will when making the will. Several undisputed facts in the record establish that Anava was not so influenced when she met her Alabama attorney, Mark Murphy, and told him what to put in her will.
Apparently, the trial judge gave scant consideration and probative value to the uncontradicted testimony of attorney Murphy, although the findings in the final judgment indicate the judge accepted the credibility of this witness. Yet, Murphy’s testimony provided the most important objective evidence probative of Anava’s testamentary capacity and ability to exercise her will free of outside influence at the time she made the September will. In lengthy discussion with her prior to preparing the will, he found her to be mentally astute and alert even though physically weak and infirm. She manifested a clear grasp of what she wanted to do and gave a thoughtful explanation as to why she wanted to make the property disposition she made. She made specific devises to her husband of all property acquired during the marriage and owned by them jointly. Further, she explained that she wanted her brother Robert rather than Murray to serve as executor, [e.s.]
* * *
Paraphrasing the holding in Tarsagian v. Watt, 402 So.2d at 472, this court is not free to treat lightly the decedent’s manifested testamentary intent, whether she leaves her estate entirely to her husband, or divides it among her husband and her blood family; merely because her choice happens to bestow a substantial portion of her estate on her brothers and their family members rather than on her husband, whom she undoubtedly loved dearly, does not mean that her choice was not freely made, and unless the evidence shows that she has been precluded from freely exercising that choice, her wishes are to be respected. The evidence in the case before us falls substantially short of clearly indicating that Anava McCormick’s “free agency and willpower” were destroyed by undue influence exerted by appellant and other Langford family members, and we are unwilling to thwart the dis-positional intent she so clearly evidenced to her attorney and in her will.

Langford, 552 So.2d at 968-969. See In re Estate of Flohl, 764 So.2d 802 (Fla. 2d DCA 2000); Pavlides v. Roussis, 764 So.2d 769 (Fla. 2d DCA 2000); Raimi v. Furlong, 702 So.2d 1273 (Fla. 3d DCA 1997), review denied, 717 So.2d 531 (Fla.1998); Mulato v. Mulato, 705 So.2d 57 (Fla. 4th DCA 1997), review denied, 717 So.2d 535 (Fla.1998); Ballard v. Ballard, 549 So.2d 1176 (Fla. 2d DCA 1989); Jordan v. Noll, 423 So.2d 368 (Fla. 1st DCA 1982), pet. for review denied, 430 So.2d 451 (Fla.1983); Tarsagian v. Watt, 402 So.2d 471 (Fla. 3d DCA 1981); Williamson v. Kirby, 379 So.2d 693 (Fla. 2d DCA 1980); see also, Kendrick-Owens v. Clanton, 271 Ga. 731, 732-733, 524 S.E.2d 237, 238 (1999); In re Estate of Farr, 49 P.3d 415, 430 (Kan.2002); In re Raynolds’ Estate, 132 N.J.Eq. 141, 153-154, 27 A.2d 226, 233-234 (1942), aff'd, 133 N.J.Eq. 344, 32 A.2d 353 (1943); Estate of Davis, 920 S.W.2d 463, 467 (Tex.App.1996). Very telling also are cases from other jurisdictions which involve very similar facts. Thus, in In re Succession of Deshotels, 735 So.2d 826, 832 (La.App. 3 Cir.1999), the court affirmed a summary judgment that no undue influence existed because, in part,

The record established that Mrs. Des-hotels lived alone but with the help of sitters at the time of her will, with Loretta-and Ms. Ayo visiting every other weekend. The only evidence suggesting that Mrs. Deshotels was influenced by Loretta or Ms. Ayo was found in the deposition of Bertie Guillory, who had stopped working for Mrs. Deshotels approximately five months before the will was executed.
Although Ms. Ayo was present at the meeting about the will, Mr. Fuselier testified that she did not participate in discussing it and that the substance of the will appeared to be Mrs. Deshotels’ decision. Mr. Fuselier saw no reason to question the will, in part because Mrs. Deshotels had told him in previous conversations that she intended to favor Loretta over Jacqueline. Mrs. Deshotels had also expressed the same intentions to others. Again, we find no genuine issue of material fact that Jacqueline will not be able to produce the clear and convincing evidence necessary to invalidate the will.

Similarly, in Lowry v. Hamilton, 268 Ga. 373, 489 S.E.2d 827 (1997), the court affirmed a disposition which, like this one, favored an unmarried daughter over her siblings on the following basis:

In a letter to her children, Ms. Wingard explained that she had provided disproportionately for Hamilton because Low-ry and her brother were more financially secure than Hamilton, Hamilton needed her financial assistance, and because Hamilton took care of her in the last two years of her life.
* * *
Lowry urges that her mother was operating under mistakes of fact about her children, caused by Hamilton’s repeated misrepresentations and omissions regarding her own divorce and the actions of her siblings, and that the serious untruths in light of Ms. Wingard’s vulnerable mental and physical state amounted to undue influence. But the record is replete with evidence that Ms. Wingard was of sound mind and strong will during the time she lived with Hamilton and when she made her final decision about the testamentary distribution, making her capable of independently judging the character and conduct of her children. She too had read Hamilton’s divorce settlement and was able to make her own assessment of Hamilton’s financial situation. Moreover, there was no evidence that Ms. Wingard believed or relied upon any negative statements made by Hamilton or that Hamilton ever asked her mother to change her will or to leave her more than the other children. On the contrary, the evidence is that the unequal distribution was not the result of ill feeling but rather born of rational concern for Hamilton and gratitude for her care.

Lowry, 268 Ga. at 373, 489 S.E.2d at 828, and 268 Ga. at 374-875, 489 S.E.2d at 829. For these reasons, we reverse the judgment below and order that the 1999 will and accompanying trust be admitted to probate.

Reversed and remanded.

      . The testimony of the lawyer, Mr. Baskies, includes the following:
      QUESTION: Did Dr. Manoyian want Mary Derovanesian to have half of the Quick and Reilly account outright?
      MR. WINTTER: Object to the form. Calls for speculation.
      ANSWER: The answer is yes. She expressed to me that Mary should receive one half of the Quick and Reilly account outright free of trust, and exempt from tax.

      And I think, ultimately, we loed (sic) to a conclusion that she wanted to keep the account available for herself in case she needed it or at least the income therefrom, but that she did want to leave one half of the account to Mary.

      BY MR. BERMAN:
      QUESTION: She told me that she felt that Mary had been supportive of her. She told me that she felt that Mary had done a good job helping manage the Quick and Reilly account.
      In fact, she told me that most of the increase in value to that account was directly the responsibility of Mary's investment acumen. She told me that she wanted to benefit her by providing that account to her. She told me that she wanted Mary to be an agent of hers.

      Baskies' associate, Mr. Samuels, stated:
      Q. What did she say she wanted to do with the Quick and Reilly account?
      A. That she wanted half of the account to pass to Mary directly and the remaining half, along with the other assets that she had, to be split equally among the children.
      Q. She said that herself? You heard her say that?
      A. I recall Mr. Baskies reviewing the provision of the trust agreement with her which stated that and that is that she was in agreement with those terms.
      Q. Was she also in agreement with the fact that half of the Quick and Reilly account was going to pass to Mary without having to pay the taxes on that?
      A. I believe that was explained to her by Mr. Baskies and she agreed that that was what she intended.

      . James Pilafian testified as follows:
      A. Well, she wanted me to make a will, but primarily she wanted to make sure that Mary would be well taken care of.
      Q. What, if anything, did she tell you about what she believed the financial condition was of her sons?
      A. She told me that she thought that they were all financially well situated and that they were millionaires in their own rights.

      Q. I don’t want to misstate anything.
      What, if anything, did she tell you about how much of her estate, if at all, that she wanted to leave to Mary?
      A. She wanted to leave enough to take care of her, to support her.
      Q. Did she quantify that for you?
      A. She said that she wanted to make sure that she was well taken care of financially and physically.

      A. She asked me to draw up a simple will and leave — to make sure that her daughter Mary was well taken care of, and that she didn't care how much the boys got because they were millionaires in their own rights.
      Q. How many such conversations like that did you have with Dr. Manoyian?
      A. Oh, over a period of 10 or 15 years, I would say about, every six months.
      * * *
      Q. Did she say that she didn't want to provide anything for them at all?
      A. She said that she didn’t care what they got because they were well taken care of, that they were millionaires in their own rights.
      * * *
      Q. Did she tell you how much specifically it would take to take care of Mary well? A. No, she didn’t
      She wanted the bulk of the estate to go to Mary.
      Shocky Pilafian gave similar testimony:
      Q. Did Dr. Manoyian ever tell you how she wanted to leave her estate?
      A. She did.
      She discussed it because she didn’t know what to do and she said to me in my house that she did not want to leave the boys anything, and she wanted Mary protected.
      I said, well, why don’t you leave a trust fund or something for the grandchildren, and she said, no. She said, let them take care of their own children. They don’t know me and I don't know them.

      Q. Do you know when you had the conversations with Dr. Manoyian about her wanting to leave her estate to Mary?
      A. That was — well, she died two years ago.
      It was maybe a year before or two years before that.

      Q. Did Dr. Manoyian say that she wanted to cut out the boys?
      A. Yes, she did.

      . In this regard, no witness testified that they ever heard Kendrick-Owens discuss the issue of changing Alene's will with her. Although there was some evidence that Kendrick-Owens had a domineering personality, and that Aleñe had diminished mental capacity at some points before and after she executed her will, there was evidence from both Alene’s attorney and her long-time physician that at the time Aleñe executed her will she was lucid and of sound mind. Alene’s attorney also stated that he met privately with Aleñe on two occasions; that on the first occasion, Aleñe brought a will she had executed in 1989, and explained to him the changes she wanted made to it and the reasons for those changes; and that the second time he met with Aleñe, it was to go over the new will and execute it. The attorney, who also witnessed the will, testified that he went over the contents of the will with Aleñe before she signed it. He stated that Aleñe understood the contents of the will and what she wanted to do and explained the reasons for her testamentary desires to him, to the other witness to the will, and to the person who notarized the will. Alene’s attorney also stated that it was his opinion that Aleñe executed the will freely and voluntarily. The attorney added that Kendrick-Owens never discussed Alene's will with him. The second witness to the will and the notary both testified that they were present when Alene’s attorney went over each item of the will; that they heard Aleñe explain her reasons for the testamentary dispositions; that Aleñe appeared to be of sound mind; and that Aleñe appeared to “be doing what she wanted to do.”

      [W]e conclude that the evidence is insufficient to show that, at the time Aleñe executed her will, Kendrick-Owens constrained or coerced Aleñe into making a will that Al-ene's judgment told her not to do or that Kendrick-Owens deprived Aleñe of her free agency and effectively substituted her will for that of Aleñe.

      . Undue influence, in order to overcome a testamentary act, must directly affect the testamentary act itself.

      . For the purpose of argument, it may be conceded that Madeleine Taitt Raynolds brought all her powers of persuasion to bear upon her husband to induce him to prefer her own sons over her stepsons in the testamentary disposition of his estate. And it may be that the testamentary disposition here complained of resulted largely from her entreaties and persuasions. But it does not follow that the influence thus exerted by her was undue. It was not undue unless his will was overcome by hers; unless her will was substituted for his; unless it appears that, without such substitution, a different disposition of his estate would have been made by the testator; in short, unless it appears that the questioned document as her will, not his. He may have submitted to persuasion and succumbed to entreaty, but if he was still free to do otherwise, and if what he did was in the exercise of his free will, even though induced by persuasion and entreaty, it cannot be said to be the result of undue influence. Her arguments may have appealed to his 'sense of justice and duty’, and his yielding, if he did yield, may as well have been the result of love for his wife as of fear or coercion. Dumont v. Dumont, [46 N.J.Eq. 223, 19 A. 467 (1898)3 supra. His two first born had already received substantial inheritances from their mother and maternal grandmother. The father may have thought that the disposition of his estate made by his will would equalize the benefits of inheritance amongst his five children. In fact, as will hereinafter appear, that reason is implicit in the language of the 1922, 1926 and 1931 wills, as the testator therein referred to the fact that Edward and Harold were beneficiaries under the wills of their mother and grandmother. That his two first born had lost their competence need not have been a controlling circumstance in the eyes of the father. They had at least had their inheritance, while that of the others was only in prospect. And in this connection it must be borne in mind that Mrs. Raynolds was testator's wife, and the mother of three of his sons, and that these three were sons of the testator no less than the appellants. Nor does it appear by any of the proofs that without the interference of Mrs. Raynolds, without her entreaty or persuasion, all of which rests in mere inference and conjecture, the disposition of testator's estate would have been different from that provided in his challenged will. In Schuchhardt v. Schuchhardt, [62 N.J. Eq. 710, 49 A. 485 (1901)] supra, it was held that: ‘When undue influence is claimed to be established by inference from certain facts proved, and, upon all the facts proved, an equally justifiable inference may be drawn that the will executed was what testator would have made under the circumstances, the burden on contestants is not supported.’

      . In reviewing the record before us, we are not without a reasonable explanation for the devise made by Ruby. Indeed, two of the testator's sisters, as well as other witnesses stated that Ruby was a very strong-willed woman, and was deeply hurt over the actions of Eddie and David. Therefore, we may not consider the unequal division among her children as an unnatural disposition, or as any evidence of undue influence, and we are left to answer whether the record contains any evidence that the devise is one which would not have been made but for the arguable influence.
      Even if the daughters' conversations with Ruby about Eddie and David, and their conversations with her about the will, were sufficient to establish that an influence was in fact exerted, the record is devoid of any supporting evidence that those conversations caused Ruby to change her will. Indulging the inference that the conversations were initiated by the daughters, and in those conversations the daughters dwelled upon the fact that Eddie and David went against Ruby's wishes, took things from her, and ultimately had no contact with her, there is still no evidence from which we may conclude those discussions became undue influence or that those discussions solely caused her to change her will.


author: NORTHCUTT, Judge.

text:
    Karen Jean Pilcher IRWIN, Appellant/Cross-Appellee, v. Michael Theodore IRWIN, Appellee/Cross-Appellant.
    No. 2D02-1843.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    Rehearing Denied Oct. 10, 2003.

      M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, and Bradley S. Bell of The Solomon Tropp Law Group, P.A., Tampa, for Appellant/Cross-Appel-lee.
    Brandon S. Vesely and Michael J. Keane of Keane, Reese & Vesely, P.A., St. Pe-tersburg, and Sarah M. Chaves, St. Pe-tersburg, for Appellee/Cross-Appellant.
   NORTHCUTT, Judge.

The circuit court upheld the prenuptial agreement between Karen and Ted Irwin and entered a final judgment dissolving their ten-year marriage. Mrs. Irwin contends the court should not have enforced the prenuptial agreement and that, having done so, the court misapplied its provisions when dividing the parties’ assets. She also maintains that the child support award was skewed by the improper imputation of income to her and the erroneous failure to impute income to Mr. Irwin. On cross-appeal, Mr. Irwin disputes the court’s determination that Mrs. Irwin was owed reimbursement for the cost of home improvements and its award of suit money and costs to her.

We decline to address the suit money and costs awards because the court did not finally determine their amounts. As such, this aspect of the final judgment is not final or appealable. See Doig v. Doig, 787 So.2d 100, 103 (Fla. 2d DCA 2001); Ritter v. Ritter, 690 So.2d 1372, 1376 (Fla. 2d DCA 1997). We affirm without further discussion on the remaining issues, save for the property distribution, which we reverse in part.

The Irwins’ prenuptial agreement contained the following provisions:

1. RELEASE OF MARITAL RIGHTS: [Mrs. Irwin] hereby waives and releases all rights in the property and estate of Ted Irwin, including, but not limited to, support or alimony for herself upon dissolution of marriage ... which she may acquire by reason of her marriage to Ted Irwin. The foregoing shall apply to any property owned by Ted Irwin' at any time, whether such property is acquired or held prior to or during the marriage, and whether held in his name alone or in both of their names, jointly or as tenants in common, or whether held in any such manner by him or his estate upon his death.
5. TRANSFERS BETWEEN THE PARTIES: Notwithstanding the provisions of this Agreement, any other rights acquired by [Mrs. Irwin] by virtue of any transfer or conveyance of property by Ted Irwin to her during his lifetime, or by will upon his death, shall not be limited or restricted in any way.

The circuit court discerned that, as a consequence of these provisions, there was no marital property to divide. It ordered that Mrs. Irwin was to retain all property titled solely in her name, and that Mr. Irwin was entitled to all property titled solely in his name or jointly with Mrs. Irwin. This was error stemming from an overbroad application of the waivers contained in the agreement. The agreement did not specifically reserve Mr. Irwin’s marital earnings as his separate property, and thus did not exclude Mrs. Irwin’s claim to share in the value of assets purchased with those earnings. See Worley v. Worley, 2003 WL 21817921, 855 So.2d 632, 633 (Fla. 2d DCA 2003); Witowski v. Witowski 758 So.2d 1181 (Fla. 2d DCA 2000). Nor did the agreement waive Mrs. Irwin’s claim to her rightful share of the marital asset consisting of the enhanced value of Mr. Irwin’s separate property that resulted from the contribution of marital funds or labor. Worley; Witowski. Therefore, we reverse and remand with directions to revisit the property division with these principles in mind.

Affirmed in part, reversed in part, and remanded.

STRINGER, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: PER CURIAM.

text:
    Bobby CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1901.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    Rehearing Denied Oct. 3, 2003.
    Bobby Clark, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Clark might have to file a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

ALTENBERND, C.J., and WHATLEY and STRINGER, JJ., Concur.


author:
KELLY, Judge.
      SILBERMAN, Judge,

text:
    Kenneth L. BALDWIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4777.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.
    Rehearing Denied Oct. 14, 2003.

      James Marion Moorman, Public Defender, and Frederick W. Vollrath, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Kenneth L. Baldwin appeals his convictions and sentences for carrying a concealed weapon by a violent career criminal, possession of a firearm by a violent career criminal, driving while license suspended, and leaving the scene of a crash. We reverse Baldwin’s conviction for carrying a concealed weapon by a violent career criminal and affirm without comment the other issues Baldwin has raised.

Baldwin’s charges stem from an incident in which police found a gun concealed in a bag that Baldwin was carrying. Baldwin argues that his convictions for carrying a concealed weapon by a violent career criminal and possession of a firearm by a violent career criminal based on this single incident violate double jeopardy. We do not agree with Baldwin’s contention that this case presents a double jeopardy issue. Nevertheless, we conclude that we must reverse his conviction for carrying a concealed weapon by a violent career criminal because the record demonstrates that the State did not prove the essential ele-merits of that offense. Specifically, the State did not prove that Baldwin possessed a concealed weapon.

Baldwin was charged with two violations of section 790.235, Florida Statutes (1999), which states in pertinent part:

(1)Any person who meets the violent career criminal criteria under s. 775.084(l)(d), regardless of whether such person is or has previously been sentenced as a violent career criminal, who owns or has in his or her care, custody, possession, or control any firearm or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree.

(Emphasis added). Section 790.001, Florida Statutes (1999), defines the terms used in chapter 790. Section 790.001(13) defines a “weapon” as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” (Emphasis added). Section 790.001(3)(a) defines “concealed weapon” as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.” (Emphasis added). Section 790.001 also defines “firearm” and “concealed firearm.” § 790.001(2), (6). It is undisputed that Baldwin’s gun constitutes a “firearm” as that term is defined in chapter 790 and that he was properly convicted for possession of a firearm by a violent career criminal in violation of section 790.235.

It is equally evident Baldwin’s gun is not a “weapon” as that term is defined in chapter 790. See § 790.001(13). Because Baldwin’s gun is not a “weapon,” we conclude that it cannot be a “concealed weapon” either. Among the items listed in the definition of “concealed weapon,” the only one that could possibly bring a gun within the ambit of “concealed weapon” is the category of “other deadly weapon.” See § 790.001(3)(a). However, as noted above, chapter 790 specifically excludes firearms from the definition of “weapon.” If a firearm is not a “weapon,” under chapter 790, it cannot be included in the category of “other deadly weapon,” and therefore, is not a “concealed weapon” as that term is defined in chapter 790.

Although the definition of “concealed weapon” differs from the definition of “weapon” in that it does not specifically exclude firearms and common pocketknives from the category of “other deadly weapon,” we do not believe that the legislature intended for a gun to be a “firearm” when not concealed, but to be both a “weapon” and a “firearm” when concealed. To read the statute in this manner would violate the basic rule of statutory construction that courts should not construe a statute in a manner that leads to an absurd result. See Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993).

We are also guided by the principle that statutory phrases are to be read in the context of the entire section and they should be ‘“interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ” Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996) (quoting State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 269 n. 5 (Fla.1978)). Throughout chapter 790, the legislature repeatedly treats firearms and weapons as distinct from one another. Chapter 790 is titled “Weapons and Firearms.” In addition to defining “weapon” and “concealed weapon,” section 790.001 also defines “firearm” and “concealed firearm.” If the legislature had equated a firearm with a concealed weapon a separate definition for “concealed firearm” would have been superfluous. Finally, section 790.01 refers to both concealed weapons and concealed firearms and provides that carrying a concealed weapon is a first-degree misdemeanor while carrying a concealed firearm is a third-degree felony. Thus, both the definitions contained in section 790.001 and the overall statutory scheme of chapter 790 lead to the conclusion that for the purposes of that chapter, a firearm is neither a “weapon” nor a “concealed weapon.”

We also find support for our conclusion in this court’s decision in State v. Ortiz, 504 So.2d 39 (Fla. 2d DCA 1987). In Ortiz, the defendant was charged with possession of a concealed weapon by a convicted felon in violation of section 790.23, Florida Statutes (1985). The defendant moved to dismiss the charge arguing that the knife he possessed was a common pocketknife and therefore was not a concealed weapon because common pocketknives are excepted from the definition of “weapon” in section 790.001(13). The trial court dismissed the charge. This court reversed, not because a common pocketknife fell within the definition of “concealed weapon,” but because it concluded that whether the knife was a common pocketknife was a question of fact that must be resolved by a jury. Id. at 40. See also Walls v. State, 730 So.2d 294 (Fla. 1st DCA 1999) (stating that the definition of “weapon” in section 790.001(13) applies to the charge of carrying a concealed weapon).

Although we have no trouble concluding that given the facts of this case Baldwin could not properly be convicted of possession of a concealed weapon by a violent career criminal, we have found the question of whether we can afford Baldwin any relief to be problematic because Baldwin did not raise this specific issue either in the trial court or on appeal. In Dydek v. State, 400 So.2d 1255 (Fla. 2d DCA 1981), this court rejected the arguments the defendant raised in his appeal from convictions for possession of cocaine and drug paraphernalia. It nevertheless reversed the defendant’s conviction for possession of drug paraphernalia after it determined that there was no evidence to establish a prima facie case that the defendant possessed paraphernalia. In reversing, this court stated:

[a]n appellate court will always consider a fundamental error that is apparent on the face of the record. Fundamental error has been defined as error which goes to the foundation of the case or to the merits of the cause of-action. We can think of no error more fundamental than the conviction of a defendant in the absence of a prima facie showing of the essential elements of the crime charged.

Id. at 1258 (citations omitted). See also F.B. v. State, 852 So.2d 226, 2003 WL 21555122 (Fla. July 11, 2003). We find this reasoning applicable to this case as well, and accordingly we reverse and remand for the trial court to vacate Baldwin’s judgment and sentence for possession of a concealed weapon by a violent career criminal.

Affirmed in part, reversed in part, and remanded.

FULMER, J., concurs.

SILBERMAN, J., concurs specially with opinion.

SILBERMAN, Judge,

concurring specially.

I agree with the majority’s conclusion that Baldwin’s convictions and sentences for carrying a concealed weapon by a violent career criminal and possession of a firearm by a violent career criminal cannot both be upheld. However, I disagree with the majority’s reasoning and would reverse because section 790.235, Florida Statutes (1999), does not authorize separate convictions and sentences based upon one incident involving Baldwin’s possession of a single gun. I also disagree with the majority’s conclusion that a gun cannot be a concealed weapon under the statute.

“Where two violations of the same statute rather than two violations of different statutes are charged, courts determine whether a single offense is involved ... by asking what act the legislature intended as the ‘unit of prosecution’ under the statute.” United States v. Weathers, 186 F.3d 948, 952 (D.C.Cir.1999) (citing Sanabria v. United States, 437 U.S. 54, 98 S.Ct. 2170, 57 L.Ed.2d 43 (1978)); see also State v. Grappin, 427 So.2d 760, 761 (Fla. 2d DCA 1983), approved, 450 So.2d 480 (Fla.1984); Burk v. State, 705 So.2d 1003, 1004 (Fla. 4th DCA 1998). Where the “legislature does not establish the allowable unit of prosecution with clarity, the ambiguity must be resolved in the accused’s favor.” Grappin, 427 So.2d at 762.

A plain reading of section 790.235 suggests that the legislature did not intend to create two separate offenses for the simultaneous conduct of possessing a firearm and carrying a concealed weapon when only one item is at the heart of the conduct. Section 790.235(1) provides the following:

Any person who meets the violent career criminal criteria under s. 775.084(l)(d), regardless of whether such person is or has previously been sentenced as a violent career criminal, who owns or has in his or her care, custody, possession, or control any firearm or electric weapon or device, or carries a concealed weapon, including a tear gas gun or chemical weapon or device, commits a felony of the first degree....

(Emphasis added).

It has long been established that “[t]he legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of an act but to the manner in which it is punctuated.” Fla. State Racing Comm’n v. Bourquardez, 42 So.2d 87, 88-89 (Fla.1949). “‘Or’ when used in a statute is generally to be construed in the disjunctive.” Telophase Soc’y of Fla., Inc. v. State Bd. of Funeral Dirs. & Embalmers, 334 So.2d 563, 566 (Fla.1976). Thus, by using “or” preceded by a comma, the legislature identified alternative ways to commit a single crime.

In writing the statute, the legislature did not separate the prohibited conduct identified by the statute into different subsections. In addition, it did not separately assign punishment for each form of conduct or punish one form of conduct more severely than the other. Rather, both forms of prohibited conduct are identified in one sentence and apply to a person who qualifies as a violent career criminal and who possesses a firearm or carries a concealed weapon. The statute indicates that such a person commits “a felony of the first degree,” which is consistent with the analysis that a single unit of prosecution was intended.

Thus, it appears that the legislature identified two forms of conduct, either of which gives rise to a single unit of prosecution. While it may be possible for a defendant to be charged with multiple violations of section 790.285 based upon the simultaneous possession of more than one of the items identified in the statute, see Grappin, 427 So.2d at 768, that scenario is not present here because Baldwin possessed only one gun. Moreover, as this court noted in Grappin, to the extent that the statute is not clear as to the allowable unit of prosecution, the ambiguity must be resolved in the defendant’s favor. Id. at 762.

Section 790.235 addresses two types of conduct that are relevant here: first, it prohibits a violent career criminal from possessing a firearm; second, it prohibits a violent career criminal from carrying a concealed weapon. In my view, under the pertinent rules of statutory construction, Baldwin’s single incident involving a single gun gives rise to one unit of prosecution. The majority analysis differs and concludes that Baldwin could not be convicted of both crimes because the concealed gun, while qualifying as a firearm, does not qualify as a concealed weapon. The majority states that because a firearm is excluded from the statutory definition of weapon, it cannot qualify as a concealed weapon. Although this rationale has some logical appeal, it ignores the rules of statutory construction and a significant body of decisional law.

As noted by the majority, there are separate definitions for weapon,- firearm, concealed weapon, and concealed firearm found in chapter 790. Section 790.001(13) defines “weapon” as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon except a firearm or a common pocketknife.” (Emphasis added). Section 790.001(3)(a) defines “concealed weapon” as “any dirk, metallic knuckles, slungshot, billie, tear gas gun, chemical weapon or device, or other deadly weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.” (Emphasis added).

The legislature’s choice of language suggests that the legislature considers firearms and common pocketknives to be deadly weapons. The definition of “weapon” contemplates that a firearm and common pocketknife would normally be included in the category of “deadly weapon” or there would have been no reason for the legislature to use the language “except a firearm or a common pocketknife.” See § 790.001(13). Then, in defining “concealed weapon” to include deadly weapons, the legislature did not repeat the language excluding firearms or common pocket knives. See § 790.001(3)(a).

The statutory language suggests that the legislature intended a broader definition for “concealed weapon” than for “weapon.” Even though a firearm does not fall within the statutory definition of “weapon” because of the exception contained in section 790.001(13), a firearm falls within the statutory definition of “eon-cealed weapon” because it is a deadly weapon and there is no exception in section 790.001(3)(a).

In State v. Bradford, 787 So.2d 811, 819 (Fla.2001) (quoting State v. Mark Marks, P.A., 698 So.2d 533, 541 (Fla.1997)), the supreme court reiterated that under “well-settled principles of statutory construction, this Court has held that ‘[t]he legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.’ “ Applying this principle leads to the conclusion that the legislature’s omission of the phrase “except a firearm or a common pocket knife” from the definition of “concealed weapon” is evidence of its intent to define “concealed weapon” more broadly than “weapon.”

Similarly, in defining “concealed weapon,” the legislature’s use of the term “deadly weapon” instead of “weapon” is significant. If the legislature had wanted to incorporate the definition of “weapon” into the definition of “concealed weapon,” it could have readily done so by stating, “ ‘Concealed weapon’ means any weapon carried on or about a person in such a manner as to conceal the weapon from the ordinary sight of another person.”

As noted by the majority, it is a principle of statutory construction that statutes “‘should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts.’ ” Acosta v. Richter, 671 So.2d 149, 153-54 (Fla.1996) (quoting State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 269 n. 5 (Fla.1978)). However, the majority ignores the legislature’s decision to define “concealed weapon” to include deadly weapons, without exception or limitation. Had the legislature intended the interpretation given by the majority, it could have simply done so by incorporating the definition of “weapon” into the definition of “concealed weapon” as shown by the example above. In Baker v. State, 636 So.2d 1342, 1343-44 (Fla.1994), the supreme court stated that “[w]here the legislature has used particular words to define a term, the courts do not have the authority to redefine it.” See also Armstrong v. City of Edgewater, 157 So.2d 422, 425 (Fla.1963) (“When there is doubt as to the legislative intent or where speculation is necessary, then the doubts should be resolved against the power of the court to supply missing words.”).

The majority notes that cases have concluded that firearms are deadly weapons (and hence can be concealed weapons), but it dismisses the applicability of those cases because they dealt "with criminal statutes outside of chapter 790. However, M.P. v. State, 682 So.2d 79 (Fla.1996), involved a statute contained in chapter 790. There, the Florida Supreme Court upheld a delinquency adjudication for carrying a concealed weapon, a firearm, in violation of section 790.01, Florida Statutes (1998), and an adjudication of delinquency for possession of a firearm by a minor in violation of section 790.22(3), Florida Statutes (Supp. 1994).

The adjudications “related to the same weapon and arose from the same incident.” M.P., 682 So.2d at 80. But the supreme court concluded that the dual adjudications did not violate double jeopardy principles because the legislature expressed its intent in section 790.22(7), Florida Statutes (Supp.1994), “to punish a minor’s possession of a firearm in addition to any other firearm-related offenses.” Id. at 82 (emphasis added). In making this statement in the context of M.P.’s charges, the supreme court necessarily determined that carrying a concealed weapon was a firearm-related offense, which supports the conclusion that a firearm qualifies as a potential concealed weapon.

This construction is further supported by the supreme court’s analysis of whether the two crimes before it contained different elements. The court specifically stated that M.P.’s possession of a firearm and carrying of a concealed weapon “share the common element of possession of a firearm.” Id. However, the adjudications did not violate double jeopardy because the two offenses contained different elements and, unlike the present case, there was a specific legislative statement authorizing cumulative punishment under two statutes. Id.

Arguably, if the legislature disagreed with those cases which determined that firearms qualified as concealed weapons, it would have expressed its contrary intent in subsequent legislation. See Jones v. ETS of New Orleans, Inc., 793 So.2d 912, 917 (Fla.2001) (“[T]he legislature is presumed to have adopted prior judicial constructions of a law unless a contrary intention is expressed in the new version.”). It appears that the legislature has not expressed that contrary intention.

The majority also asserts that in section 790.001, the legislature would not have separately defined “concealed firearm” if it had intended to include firearms in the definition of “concealed weapon.” However, the legislature may simply have wanted to create a broader category for the crime of carrying a concealed weapon in order to punish a wider range of conduct, while punishing with greater severity, in appropriate circumstances, the more narrowly defined and arguably more dangerous conduct of carrying a concealed firearm. Additionally, it is arguable that the legislature elected to give discretion or flexibility to prosecutors to initiate more severe or less severe charges and to pursue greater or lesser punishment for certain conduct, depending on the prosecutor’s analysis of the relevant circumstances.

In my view, the statutory language can be reconciled, consistent with the rules of statutory construction and existing precedent, to support the conclusion that a firearm is a deadly weapon and, therefore, may be carried in a manner that qualifies it as a concealed weapon. In the present case, involving one incident and one gun, I agree that Baldwin cannot be punished twice under section 790.235. Accordingly, while I disagree with the majority's analysis, I concur in the result.

      . It is important to note that our decision in this case is governed by the definitions contained in section 790.001, which apply to the provisions of chapter 790. We recognize that in other contexts a firearm may constitute a deadly weapon. For example, "[i]t is well settled that a firearm ... is a 'deadly weapon’ within the meaning of [section 784.045, Florida Statutes],” the aggravated assault statute. Riggins v. State, 557 So.2d 185, 185 (Fla. 3d DCA 1990).

      . This differs from the situation in Skeens v. State, 556 So.2d 1113 (Fla.1990). There, the supreme court upheld convictions for carrying a concealed firearm under section 790.01(2), Florida Statutes (1983), and felon in possession of a firearm under section 790.23, Florida Statutes (1983). Although the convictions arose from the same conduct, the conduct violated two statutes that required proof of different elements.

      . Case law recognizes that firearms are deadly weapons, as discussed later in this opinion. Additionally, case law recognizes that common pocketknives may qualify as deadly weapons, depending on their use. See, e.g., Martin v. State, 747 So.2d 474 (Fla. 5th DCA 1999); Durden v. State, 743 So.2d 77 (Fla. 1st DCA 1999); McCoy v. State, 493 So.2d 1093 (Fla. 4th DCA 1986); State v. Nixon, 295 So.2d 121 (Fla. 3d DCA 1974).

      . Notably, the legislature did precisely this by incorporating another defined term when it defined "concealed firearm.” Section 790.001(2) states, “ 'Concealed firearm’ means any firearm, as defined in subsection (6), which is carried on or about a person in such a manner as to conceal the firearm from the ordinary sight of another person.”

      . For example, in Webb v. State, 410 So.2d 944, 945 (Fla. 1st DCA 1982), the First District noted that the defendant's conviction for third-degree felony murder was predicated upon an aggravated battery by use of a deadly weapon, a firearm. Because a firearm was part of the proof of the underlying crime, which was an enhanced penalty offense, the court held that enhancement of the sentence for use of a firearm, under another statute, was improper. This court reached a similar conclusion in Rodriguez v. State, 701 So.2d 1194, 1195 (Fla. 2d DCA 1997), involving the use of a deadly weapon, again, a firearm. See also Greer v. State, 804 So.2d 620, 621 (Fla. 3d DCA 2002) (concluding that "there was substantial competent evidence to support the conclusion that the defendant used a deadly weapon, a firearm, during the course of the robbery”).

      . This is consistent with the fact that carrying a concealed weapon is a first-degree misdemeanor and carrying a concealed firearm is a third-degree felony. See 790.01, Fla. Stat. (1999). It is also consistent with the decision in M.P. which involved an adjudication for carrying a concealed weapon (a firearm) pursuant to section 790.01(1), Florida Statutes (1993), instead of carrying a concealed firearm under section 790.01(2), Florida Statutes (1993). See M.P., 682 So.2d at 80. Nothing in M.P. suggests that the charge should have been brought under section 790.01(2) as one of carrying a concealed firearm, and it is clear that in M.P., a firearm was the concealed weapon.