text:
    Jimmy Wayne SIMPSON and Gloria Simpson, Appellants, v. Henry C. YOUNG, III, and Leslie M. Young, Appellees.
    No. 2D03-4897.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Glen E. Greenfelder of Greenfelder, Mander, Murphy, Dwyer & Morris, Dade City, for Appellants.
    Charles D. Waller, Dade City, for Appel-lees.
   NORTHCUTT, Judge.

Mr. and Mrs. Simpson are the maternal grandparents and legal custodians of Henry Young’s and Leslie Young’s children. They seek review of an order holding them in contempt of court for relocating the children from Florida to South Carolina and for denying the parents visitation with the children. We affirm the order in part and reverse it in part.

The Youngs’ marriage was dissolved in Pasco County in May 1997. The final judgment provided for shared parental responsibility for the parties’ two young children. The mother was to be the primary residential parent and the father was to pay child support. In August 1998, both parents entered into a stipulation relinquishing to the Simpsons their parental responsibility for and the residential care of their children. The agreement waived child support from the parents and forgave the father’s arrearages. It also set forth a visitation schedule for the parents, but it did not contain a prohibition against the children’s relocation. The Pasco County circuit court approved the stipulation and incorporated it into an order modifying the final judgment of dissolution.

At some point in time, the Simpsons moved with the children to South Carolina. In July 2003, they filed an action in that state seeking child support and a modification of visitation. The next month, the parents filed two proceedings in Pasco County. In the first they petitioned for modification of the previously-modified final judgment to reinstate their parental responsibility and return the children to Florida. The parents also filed a motion to hold the grandparents in contempt. At the time this appeal was taken, the court had not ruled on the modification petition. Accordingly, the only issue before us is the propriety of the contempt order.

The grandparents’ main argument is that the Pasco County circuit court did not have jurisdiction to enter the order. They contend that the interplay between the South Carolina Uniform Child Custody and Jurisdiction Act, S.C.Code Ann. § 20-7-788 (Law. Co-op 1976), and the Florida Uniform Child Custody Jurisdiction and Enforcement Act, §§ 61.501-542, Fla. Stat. (2003), establishes that only South Carolina has jurisdiction over the children. We need not address this thorny jurisdictional issue, because the contempt matter before us is not a “child custody proceeding” as defined in either the Florida or the South Carolina statutes. See § 61.503(4) (“ ‘Child custody proceeding’ means a proceeding in which legal custody, physical custody, residential care, or visitation with respect to a child is an issue.... ”); S.C.Code Ann. § 20-7-786(3) (“ ‘[CJustody proceeding’ includes proceedings in which a custody determination is one of several issues, such as an action for divorce or separation, and includes child neglect and dependency proceedings.”).

A circuit court has jurisdiction to enforce its own judgments by contempt. See § 38.22, Fla. Stat. (2003); cf. Wells v. State, 654 So.2d 145, 146 (Fla. 3d DCA 1995) (stating that courts have the inherent contempt power to punish the violation of a valid court order). But that does not end our inquiry. The order that granted custody to the Simpsons did not prohibit them from relocating with the children. When an order is not explicit or precise enough to place a party on notice about what that party may or may not do, it cannot support an order of contempt. Keitel v. Keitel, 716 So.2d 842, 844 (Fla. 4th DCA 1998). Thus, the circuit court’s finding that the grandparents were in contempt for removing the children to South Carolina cannot be upheld.

The court’s second finding, that the grandparents interfered with the parents’ visitation, did support the contempt order. See LaLoggia-VonHegel v. VonHegel, 732 So.2d 1131, 1132 (Fla. 2d DCA 1999). We affirm the order on that ground. But the court also required the grandparents to return the children to Florida. Although we believe that condition was intended as a requirement for the grandparents to purge their contempt, it was a,kin to the modification of custody ordered as a contempt sanction in VonHe-gel, which we reversed. We hold that ordering the Simpsons to bring the children back to Florida was an inappropriate sanction for their violation of court-ordered visitation. See id. at 1132-33; see also Pelliccia v. Arce, 867 So.2d 619, 620-21 (Fla. 2d DCA 2004).

We affirm the order of contempt, but remand to the circuit court to strike the finding that the Simpsons were in contempt for moving the children to South Carolina. The circuit court shall also strike the provision requiring the Simpsons to return the children to Florida, and it shall fashion a more appropriate purge condition.

WHATLEY and STRINGER, JJ., Concur.

      . The order of contempt states, in both its fact-finding and adjudicatory sections, that the Pasco County circuit court retained jurisdiction over the parties and the subject matter for enforcement and modification of its order. The Youngs’ petition for modification of the previously-modified final judgment was not at issue in this contempt proceeding. Therefore, the circuit court’s reference to ’’modification” is extraneous and is not law of the case vis-a-vis the court’s jurisdiction to modify the judgment.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Roosevelt HANNAH, Appellant, v. STATE of Florida, Appellee.
    No. 2B04-1186.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
   PER CURIAM.

Affirmed. See Cruller v. State, 808 So.2d 201 (Fla.2002); McCall v. State, 862 So.2d 807 (Fla. 2d DCA 2003); Stephenson v. State, 666 So.2d 573 (Fla. 2d DCA 1996); Plowman v. State, 586 So.2d 454 (Fla. 2d DCA 1991); Middleton v. State, 721 So.2d 792 (Fla. 3d DCA 1998). As this court did in McCall, we certify direct conflict with Richardson v. State, 884 So.2d 950, 2003 WL 21697171 (Fla. 4th DCA July 23, 2003).

Affirmed; conflict certified.

WHATLEY, CASANUEVA, and CANADY, JJ., Concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. J.T. and State of Florida, Appellees.
    No. 2D04-2734.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Rehearing Denied Sept. 15, 2004.

      Keith J. Ganobski, Department of Children and Family Services, Largo, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

On June 17, 2004, the Department of Children and Family Services (DCF) filed an emergency motion for stay and petition for writ of common law certiorari or in the alternative petition for writ of prohibition or other appropriate relief. On July 1, 2004, this court granted the emergency motion for stay pending further order of this court. On July 7, 2004, this court dissolved the stay and denied the petition. This opinion follows.

DCF raises a claim under Florida Rule of Juvenile Procedure 8.095, challenging aspects of the trial court’s order finding J.T. incompetent to stand trial. Because DCF was not a party to the case below, it lacks standing to challenge the trial court’s order. See Dep’t of Health & Rehab. Servs. v. Simon, 492 So.2d 1159 (Fla. 3d DCA 1986). The petition is therefore denied.

Petition denied.

CASANUEVA, DAVIS, and CANADY, JJ., Concur.


author: PER CURIAM. CASANUEVA, Judge,

text:
    Derrick L. LOWE, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1780.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
   PER CURIAM.

Affirmed. See Collins v. State, 800 So.2d 660 (Fla. 2d DCA 2001); Harris v. State, 766 So.2d 403 (Fla. 2d DCA 2000).

WHATLEY and CANADY, JJ., Concur.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring.

I fully concur in the per curiam opinion. I write only to correct a typographical error that appears in the opinion I authored in Harvey v. State, 865 So.2d 518 (Fla. 2d DCA 2003), review dismissed, 871 So.2d 873 (Fla.2004). Mr. Lowe asserts that a portion of the Harvey opinion quoting from this court’s prior opinion in Collins v. State, 800 So.2d 660 (Fla. 2d DCA 2001), entitles him to relief. However, the Harvey opinion unfortunately omits the word “not” from the Collins quotation. The Harvey opinion, 865 So.2d at 518-19, as corrected should read:

[S]ection 775.087(l)(a), Florida Statutes (1993), requires that the trial court reclassify a first-degree felony to a life felony where the use of a weapon or firearm is not an essential element of the offense and a weapon or firearm was used during the offense. Collins v. State, 800 So.2d 660, 661 (Fla. 2d DCA 2001).


author: KELLY, Judge.

text:
    Reginald L. CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-699.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
   KELLY, Judge.

Reginald L. Campbell appeals the summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse and remand for correction of his written sentences.

On May 12,1994, Campbell was charged by a single information with sale of cocaine and possession of cocaine. On January 10, 1995, a jury found Campbell guilty of both counts. The trial court sentenced Campbell to five years in prison on the possession count and fifteen years in prison on the sale count. The written sentences indicate that the sentences are to run consecutively. In his motion, Campbell sought correction of his written sentences, claiming that at the sentencing hearing the trial court did not direct the sentences to run consecutively, and therefore, his sentences should run concurrently. See § 921.16(1), Fla. Stat. (1993).

The trial court denied the motion because the oral pronouncement was made in a way that suggested consecutive sentences. We disagree. It is apparent from the sentencing transcript that the trial court did not direct the sentences to run consecutively. Therefore, the prison sentences shall run concurrently, and the written sentences shall be corrected to conform to the oral pronouncement of sentence. See § 921.16(1); Ashley v. State, 850 So.2d 1265 (Fla.2003); Hunter v. State, 846 So.2d 1227 (Fla. 2d DCA 2003). Accordingly, we reverse and remand for the trial court to correct the written sentences to reflect that the prison sentences are to run concurrently.

We note that in his initial brief on appeal, Campbell raised arguments that were not raised in his rule 3.800(a) motion. We decline to address these issues because they were not first presented to the trial court. See Adams v. State, 774 So.2d 941 (Fla. 2d DCA 2001).

Reversed and remanded.

COVINGTON and CANADY, JJ., concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant, v. J.W. and State of Florida, Appellees.
    No. 2D04-2733.
    District Court of Appeal of Florida, Second District.
    July 23, 2004.
    Rehearing Denied Sept. 15, 2004.

      Keith J. Ganobski, Department of Children and Family Services, Largo, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

On June 17, 2004, the Department of Children and Family Services (DCF) filed an emergency motion for stay and petition for writ of common law certiorari or in the alternative petition for writ of prohibition or other appropriate relief. On July 1, 2004, this court granted the emergency motion for stay pending further order of this court. On July 7, 2004, this court dissolved the stay and denied the petition. This opinion follows.

DCF raises a claim under Florida Rule of Juvenile Procedure 8.095, challenging aspects of the trial court’s order finding J.W. not guilty by reason of insanity and committing J.W. to DCF to be placed in a mental health treatment facility. Because DCF was not a party to the case below, it lacks standing to challenge the trial court’s order. See Dep’t of Health & Rehab. Servs. v. Simon, 492 So.2d 1159 (Fla. 3d DCA 1986). The petition is therefore denied.

Petition denied.

CASANUEVA, DAVIS and CANADY, JJ., Concur.


author: CANADY, Judge.

text:
    STATE FARM FIRE AND CASUALTY COMPANY, a foreign corporation, and Nationwide Mutual Fire Insurance Company, Appellants, v. Scott David PETTIGREW and Victoria L. Pettigrew, husband and wife, Appellees.
    No. 2D02-3707.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.
    Rehearing Denied Sept. 9, 2004.

      Bonita Kneeland Brown of Fowler White Boggs Banker, P.A., Tampa, and Curtright C. Truitt of Curtright C. Truitt, P.A., Fort Myers, for Appellant State Farm Fire and Casualty Company.

      Richard R. Garland of Dickinson & Gibbons, P.A., Sarasota, for Appellant Nationwide Mutual Fire Insurance Company.'
    Jacqulyn Mack of The Mack Law Firm, Englewood, for Appellees.
   CANADY, Judge.

State Farm Fire and Casualty Company and Nationwide Mutual Fire Insurance Company, uninsured motorist insurance carriers, appeal a judgment in favor of Scott David Pettigrew and Victoria L. Pet-tigrew on their uninsured motorist claims. Because the trial court erred in excluding certain evidence which the appellant insurers sought to introduce concerning claims for prior injuries suffered by Mr. Petti-grew, we reverse the judgment and remand for a new trial.

I. BACKGROUND

Mr. Pettigrew allegedly was injured in an automobile collision on June 12, 1996. The Pettigrews sued Marshall Sawdey, whose vehicle had collided with a vehicle owned and driven by Dawn Medin, in which Mr. Pettigrew was a passenger. Mr. Pettigrew also sued Medin’s uninsured motorist carrier, State Farm, as well as Pettigrew’s own uninsured motorist carrier, Nationwide. Mr. Pettigrew’s claim against Sawdey was settled, and the claims against the appellant uninsured motorist carriers proceeded. The trial resulted in a jury verdict finding that the June 12, 1996, automobile accident was a legal cause of permanent injury to Mr. Pettigrew. The jury awarded damages to Mr. Pettigrew for future lost earning ability and noneco-nomic damages. The jury also awarded damages to Mrs. Pettigrew on her consortium claim.

Prior to trial, Mr. Pettigrew dropped his claim for medical expenses and past lost' earnings. He thus proceeded to trial Mdth claims for future lost earning ability and past and future noneconomic damages. In advance of the trial, Mr. Pettigrew filed an objection and a motion to strike the appellants’ witnesses and exhibits relating to Mr. Pettigrew’s workers’ compensation claims for two prior work-related accidents which had occurred in 1991 and 1994. Subsequently, Mr. Pettigrew filed omnibus motions in limine, seeking the exclusion from evidence of all workers’ compensation files and claims.

In its response to Mr. Pettigrew’s efforts to exclude the evidence concerning workers’ compensation claims, State Farm asserted that the injuries Mr. Pettigrew attributed to the 1996 automobile accident were the same injuries that he had attributed to his 1991 and 1994 work-related accidents. State Farm sought to present evidence concerning the claims for the 1991 and 1994 work-related accidents to the jury in an effort to establish that the 1996 automobile accident was not the cause of Mr. Pettigrew’s injuries or to show that his injuries — -and the damages claimed — were at least partially attributable to the work-related accidents. State Farm also sought to introduce that evidence to impeach Mr. Pettigrew and Mrs. Pettigrew and their expert witness based on the inconsistent position they had taken in the workers’ compensation litigation concerning the source of Mr. Pettigrew’s injuries. In his litigation on the uninsured motorist claim, Mr. Pettigrew contended he had suffered injury to his right shoulder, his right biceps tendon, his right elbow, and his ulnar-and radial nerves. He had claimed similar injuries in connection with the earlier work-related accidents.

State Farm relied on an order of the judge of compensation claims issued on September 20, 1999, determining that the injuries claimed by Mr. Pettigrew in the workers’ compensation proceeding were attributable to the work-related accidents in 1991 and 1994. In addition to seeking to submit Mr. Pettigrew’s workers’ compensation records to the jury, State Farm asserted that the physicians who had attributed treatment expenses in the workers’ compensation proceeding to the work-related accident should be subject to cross-examination at trial on that issue. In response to Mr. Pettigrew’s objection to evidence of “monetary claims” connected with the work-related injuries, State Farm stated that it was not seeking to admit into evidence a “dollar figure.”

Although the trial court acknowledged the relevance of evidence relating to the cause of Mr. Pettigrew’s injuries that was introduced in the workers’ compensation proceeding, it ultimately placed severe restrictions on the admission of the workers’ compensation records and deposition testimony. The trial court ruled that the defense could not “put in any records that say insurance or workers’ comp or bring that out in any way, shape, or form.” At trial, the trial court reiterated its pretrial ruling. The court stated:

[N]o reference of any kind in any way, shape, or form to prior litigation, okay, none. Prior medical condition is fair game.... And if you want to impeach him with didn’t your office manager send a bill to the comp carrier, I’ll excuse the jury and let’s proffer it on the record, but I’m not going to let you do it in front of the jury.

The trial court further explained: “I’m trying to keep the jury from knowing that there was a worker’s compensation litigation claim or case.”

The defense proffered various workers’ compensation documents, including a petition dated November 10, 1998, signed by Mr. Pettigrew, seeking benefits for the 1991 and 1994 work-related accidents, which claimed injuries to Mr. Pettigrew’s “[rjight shoulder, right wrist, both knees, [and] ulnar [and] radial nerve[s]” in connection with the 1991 and 1994 work-related incidents. The petition set forth treatment provided to Mr. Pettigrew by Dr. Joseph Noah, including a prosthesis replacement which Dr. Noah surgically installed on May 8, 1996 — shortly before the automobile accident at issue. Also proffered were various medical notes from the workers’ compensation records. No mention is made in either the petition or the medical notes of the automobile accident on June 12,1996.

The defense also proffered a “Stipulation in Support of Joint Petition for Order Approving a Lump-Sum Settlement” dated March 2001, as well as the “Final Compensation Order” entered on September 30, 1999, by the judge of compensation claims. The stipulation makes no mention of the automobile accident in 1996, although it does refer to a nonwork related incident in October 1997. The stipulation contains a statement that “the Employee/Claimant agrees no accidental injuries ... other than specifically mentioned herein have been sustained.” The order similarly is devoid of any reference to the 1996 automobile accident. It details the treatment received by Mr. Pettigrew, including a shoulder arthrodesis (fusion) on September 30, 1998. The order states that all the medical expenses incurred in connection with that procedure were compensable. Mr. Pettigrew had previously amended his petition for workers’ compensation benefits to include those expenses.

The defense also proffered certain portions of the video deposition testimony of Dr. Joseph Noah. Among the portions of the deposition excluded from evidence was a series of questions concerning a letter to the workers’ compensation carrier dated January 9, 1997, in which Dr. Noah stated that he was “requesting authorization from Workman’s Comp” to perform a “right elbow radial tunnel ulnar nerve transposition.”

At trial, there was substantial testimony concerning the injuries suffered by Mr. Pettigrew prior to the 1996 accident. Dr. Noah testified that in a letter to Mr. Petti-grew’s attorney he had attributed a 24 percent impairment rating of Mr. Petti-grew to injuries experienced prior to the 1996 auto accident. Dr. Noah also testified that Mr. Pettigrew’s shoulder joint “looked terrible” prior to the 1996 automobile accident but that as a result of that accident Mr. Pettigrew sustained a permanent injury to his elbow and aggravation of his shoulder.

In his own testimony at trial, Mr. Petti-grew testified: “The shoulder really wouldn’t let me do anything from that date that I injured it in '94.” Defense counsel confronted Mr. Pettigrew with medical records from 1999 in which his injuries were attributed to his work-related accidents with no reference to the 1996 automobile accident. When defense counsel asked Mr. Pettigrew if he had submitted the impairment rating from his physicians in connection with “any other events other than this accident,” the trial court instructed counsel to approach the bench. A conference at the bench was conducted in which the trial court stated:

You’re coming dangerously close to a mistrial. I specifically told you, I made my ruling and you are tip toeing up to the line and you’re starting to go across it to solicit the answers and that’s going to cause a mistrial. I gave you a clear ruling and you’re walking right up to the line. You know [very] well what you’re soliciting and he’s going to say, yeah, that was the workman’s comp carrier.

Mr. Pettigrew subsequently conceded that “[fit’s obvious I already had some serious shoulder and elbow and these problems and everything else before this car accident ever happened.”

Mrs. Pettigrew testified that after the 1996 automobile accident Mr. Pettigrew “progressively increased to intolerable pain.” According to Mrs. Pettigrew’s trial testimony, after the automobile accident her husband’s pain “got markedly worse.” She further testified that she and Mr. Pet-tigrew “went through a very difficult period after the automobile accident.”

II. ISSUE ON APPEAL

The appellant uninsured motorist insurers contend that the trial court erred in excluding evidence concerning Mr. Petti-grew’s workers’ compensation claims which would have established that — in the workers’ compensation proceeding — he attributed the injuries on which his claims against the appellants were based solely to work-related accidents. They contend that under Florida law a jury may not be presented evidence of a “workers’ compensation recovery or insurance recovery in the same accident as the accident at issue in trial,” but that evidence concerning a claim made by the plaintiff concerning another accident may be admitted.

The Pettigrews argue that the trial court did not abuse its discretion in excluding evidence relating to Mr. Pettigrew’s workers’ compensation claims. The Petti-grews also argue that the insurers are precluded from asserting that the exclusion of the evidence was error by their failure to raise appropriate affirmative defenses. Finally, the Pettigrews contend that any error committed by the trial court was harmless because “the jury was made aware of the prior industrial accidents due to references to them during trial.”

III. ANALYSIS

“The collateral source evidentia-ry rule has been recognized in numerous cases, prohibiting admission of collateral sources in the liability trial.” Gormley v. GTE Products Corp., 587 So.2d 455, 457 (Fla.1991). The exclusion of collateral source evidence is aimed at preventing the misleading of the jury that could arise from the admission of evidence indicating that the plaintiff has already received recompense for the injury or loss at issue. A plaintiff is entitled not to have the jury impermissibly led to believe that the plaintiff is “ ‘trying to obtain a double or triple payment for one injury.’ ” Gormley, 587 So.2d at 458 (quoting Clark v. Tampa Elec. Co., 416 So.2d 475, 476 (Fla. 2d DCA 1982)).

This general principle has long been applied to exclude evidence related to workers’ compensation benefits from admission in a trial of an injured worker’s claims against a third party. See Tampa Sand & Material Co. v. Johnson, 103 So.2d 250, 253 (Fla. 2d DCA 1958) (“ ‘[Sjince information concerning workmen’s compensation is not material on a determination of the issues of liability of the third party[] and since such information would tend to confuse and mislead the jury in trying the issues of the third party’s liability, it is reversible error for any pleadings or proof relating to such workmen’s compensation to be brought before the jury.’ ” (quoting Pattison v. Highway Ins. Underwriters, 278 S.W.2d 207, 210 (Tex.Civ.App.1955))); see also John Deere Co. v. Thomas, 522 So.2d 926, 927 (Fla. 2d DCA 1988) (discussing cases in which “there was evidence adduced at trial disclosing to the jury that the plaintiffi'claimant had received benefits from various sources[ — including workers’ compensation benefits — ] thus generating the risk that the jury could perceive the plaintiff/claimant as having been compensated for the injury he sustained”).

The limitation on the admission of collateral source evidence is, however, typically applied with respect to claims for payments arising from the same event that is the basis for the claim at trial. Thus, evidence of workers’ compensation benefits is not admissible in a trial brought by the injured worker against a third party for liability arising from the same events that were the basis for the worker’s receipt of workers’ compensation benefits.

There are, of course, circumstances in which a claim for or the receipt of workers’ compensation benefits or other payments arising from events unrelated to the claim at issue may properly be excluded from evidence. Indeed, such evidence ordinarily would be inadmissible because it simply would not be relevant to the issues of liability or damages being tried. See § 90.401, Fla. Stat. (2001) (“Relevant evidence is evidence tending to prove or disprove a material fact.”). The fact that a plaintiff has sought or received workers’ compensation or other benefits for events unrelated to the claim at issue generally would not “tend[] to prove or disprove a material fact” and thus should have no bearing on a jury’s determination of that claim. It is well established that evidence of prior claims or benefits cannot properly be adduced to discredit the plaintiff for litigiousness. See Zabner v. Howard Johnson’s Inc., 227 So.2d 543, 546 (Fla. 4th DCA 1969) (holding that “plaintiffs character as being litigious is certainly not in issue”).

The amount of a settlement or judgment for a prior injury is inadmissible because it is “clearly irrelevant to the issues being tried.” Leslie v. Higgason, 779 So.2d 470, 470 (Fla. 2d DCA 2000). Evidence concerning a “[plaintiffs] previous injury” may, however, be relevant to the issue of the defendant’s liability or the amount of damages due. Id.

There are also circumstances where evidence specifically concerning litigation or claims by a plaintiff for a prior injury will be considered relevant to matters at issue and therefore admissible. Thus, “a plaintiff may properly be questioned about prior lawsuits or claims for injuries similar to those complained of in the present lawsuit trial.” Zenchak v. Kaeufer, 612 So.2d 725, 726 (Fla. 4th DCA 1993). Evidence related to such prior claims is admissible because it is “relevant to determin[ing] the credibility of the [plaintiffs] testimony” regarding injuries sustained in a subsequent accident for which suit is brought. Id. As the court explained in Zabner:

[A] plaintiff may properly be cross[-]examined as to his previous injuries, physical condition, claims[,] or actions for injuries similar to that constituting the basis of the present action for the purpose of showing that his present physical condition is not the result of the injury presently sued for but was caused wholly or partially by an earlier injury or pre-existing condition.

227 So.2d at 545. See also Hicks v. Daymude, 190 So.2d 6, 7 (Fla. 1st DCA 1966) (holding that plaintiff was properly confronted “with her answers to questions in a deposition taken in [an earlier suit], in which she admitted [a] prior ... incident” in which she had fallen); cf. Lumbermens Mut. Cas. Co. v. Poling, 823 So.2d 805, 806-07 (Fla. 5th DCA 2002) (holding that trial court erred in excluding from evidence “the application for social security benefits that [the plaintiff] made eight months prior to the accident [at issue] in which he described in detail his inability to work” which was “probative in establishing [the plaintiffs] condition prior to the accident” and stating that “since [the plaintiff] was denied [social security] benefits ... there was no collateral source”). Similarly, evidence relating to a subsequent personal injury claim is admissible as relevant evidence “because it tend[s] to prove that [the plaintiffs] presently claimed injuries resulted from a subsequent accident.” Holmes v. Redland Constr. Co., 557 So.2d 911, 912 (Fla. 3d DCA 1990).

Such evidence regarding claims by a plaintiff arising from an event other than the accident or other occurrence at issue is not evidence of a collateral source. For a payment to be from a collateral source there must be an identity between the event giving rise to the plaintiffs claim that is at issue and the event giving rise to the other source of payment. The traditional substantive collateral source rule of damages permitting a plaintiffs recovery from a tortfeasor to be undiminished by benefits the plaintiff received from collateral sources was based on the principle that “ ‘a defendant tortfeasor may not benefit from the fact that the plaintiff has received money from other sources as a result of the defendant’s tort.’ ” Dean v. Am. Family Mut. Ins. Co., 535 N.W.2d 342, 345 (Minn.1995) (quoting Black’s Law Dictionary 262 (6th ed.1990)). See also Paradis v. Thomas, 150 So.2d 457, 458 (Fla. 2d DCA 1963) (“ ‘[T]otal or partial compensation for an injury received by the injured party from a collateral source wholly independent of the wrongdoer will not operate to lessen the damages recoverable from the person causing the injury.’ ”) (quoting 15 Am.Jur. Damages § 198 (1938)). Accordingly, a payment is from a collateral source only if the payment is made “ ‘as a result of the defendant’s tort,’ ” Dean, 535 N.W.2d at 345, that is, arises from the same event that is at issue in the plaintiffs current claim. In the absence of such an identity of the precipitating event, the source of payment is an unrelated source, not a collateral source.

We therefore conclude that the trial court erred in determining that the evidence related to Mr. Pettigrew’s prior workers’ compensation claims which the insurers sought to introduce was collateral source evidence. The trial court consequently abused its discretion by excluding that evidence.

We reject the Pettigrews’ contention that the insurers’ failure to assert an affirmative defense based on Mr. Pet-tigrew’s workers’ compensation claims precludes the insurers from raising their argument concerning the trial court’s exclusion o,f evidence. No such affirmative defense was necessary to preserve .the insurers’ right to contest the causation and damage elements of the Pettigrews’ claim. See Hicks, 190 So.2d at 8 (stating that “the settled law of this state [is] that the matter of damages and the extent of a plaintiffs injuries are properly presented under a general denial”).

We likewise reject the Pettigrews’ claim that any error by the trial court was harmless. Although the jury was presented with some of the same facts contained in the excluded evidence through other means, the excluded evidence was not merely cumulative. The limitation imposed by the trial court thwarted the efforts of the defense to attack the credibility of the Pettigrews and their witnesses by establishing that they had in previous litigation taken a position concerning the source of Mr. Pettigrew’s injuries that was totally at odds with their position in the instant case. The substantial evidence presented to the jury concerning Mr. Pettigrew’s work-related injuries was no substitute for the relevant evidence concerning the inconsistent position previously asserted by the Pettigrews and their witnesses. The improper exclusion of evidence substantially interfered with the insurers’ ability to present a crucial element of their defense.

“[A]fter an examination of the entire case” we conclude “that the error complained of has resulted in a miscarriage of justice.” § 59.041, Fla. Stat. (2001). In other words, “considering all the facts peculiar to the particular case under scrutiny” we conclude that “it is reasonably probable that a result more favorable to the appellants] would have been reached if the error had not been committed.” Damico v. Lundberg, 379 So.2d 964, 965 (Fla. 2d DCA 1979).

IV. CONCLUSION

The judgment against the appellants is reversed, and the case is remanded for a new trial.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.


text:
    In re COMMITMENT OF Duane Edwin SUTTON, Keith Norwood Smith, John R. Beikirich, Edward Allen Singleton, Jerry Wade Rhoades, and George Samuel Demarco. Duane Edwin Sutton, Keith Norwood Smith, John R. Beikirich, Edward Allen Singleton, Jerry Wade Rhoades, and George Samuel Demarco, Petitioners, v. State of Florida, Respondent.
    Nos. 2D03-2780, 2D03-2973, 2D03-2984, 2D03-2988, 2D03-2993, 2D03-3327.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.
    Rehearing Denied Sept. 21, 2004.

      Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Petitioners.
    Charles J. Crist, Jr., Attorney General, and Janet McDonald, Assistant Attorney General, Tampa, for Respondent.
   KELLY, Judge.

In these consolidated eases, the petitioners seek certiorari review of the trial court’s orders requiring them to submit to depositions in sexually violent predator commitment proceedings. In the alternative, they seek prohibition to prevent or limit the scope of the State’s depositions. Because the petitioners have failed to demonstrate that the trial court departed from the essential requirements of law resulting in irreparable harm, we deny the petitions.

In each case, the petitioners pleaded nolo contendere to sexual offenses, were adjudicated and sentenced, and were serving their sentences when the State sought to have them involuntarily committed as sexually violent predators under the Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act, sections 394.910-.931, Florida Statutes (2002). During the commitment proceedings, the State attempted to depose some of the petitioners. The petitioners objected claiming that the depositions violated their right to privacy and their Fifth Amendment privilege against self-incrimination.

When the court ordered the petitioners to submit to depositions, they sought cer-tiorari review, requesting this court to prohibit the State from deposing them. In Commitment of Smith v. State, 827 So.2d 1026 (Fla. 2d DCA 2002), this court held that a respondent in a sexually violent predator commitment proceeding cannot assert a blanket right of privacy or the right against self-incrimination to avoid being deposed. Instead, he must appear and make a good faith assertion of the privileges to particular questions when necessary. We remanded for a hearing on the petitioner’s objections to proposed deposition questions. Id. at 1031; see In re Commitment of Sutton, 828 So.2d 1081 (Fla. 2d DCA 2002).

Thereafter, the petitioners in these consolidated cases filed with the trial court copies of the proposed deposition questions, together with written objections to each question. Again, following hearings on the contested questions, the court ordered each petitioner to submit to a deposition and to answer the State’s questions, with some limitations. The trial court stayed the orders pending review in this court.

The petitioners again ask this court to quash the orders allowing their depositions to be taken or alternatively, to issue a writ of prohibition to the State Attorney of the Twelfth Judicial Circuit of Florida to prevent the State from, deposing them. This court has previously held that Jimmy Ryce detainees in .this type of civil commitment proceeding do “not have any absolute privilege to avoid the discovery process.” Sutton, 828 So.2d at 1082. .Accordingly, this aspect of the petitioners’ arguments has no merit.

The petitioners also seek certio-rari relief from the trial court’s rulings on their objections to the questions proposed by the State. In Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), the court explained the limits on the use of petitions for writs of certiorari to obtain review of an order granting discovery. The court emphasized that certiorari is an “extraordinary remedy” that “should not be used to circumvent the interlocutory appeal rule which authorizes appeal from only a few types of non-final orders.” Id. at 1098. The court noted that while orders granting discovery had traditionally been reviewed by certiorari, not every erroneous discovery order creates certiorari jurisdiction in an appellate court. Id. at 1100. A nonfinal order granting discovery will be reviewed by certiorari only when the order departs from the essential requirements of the law and causes irreparable injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal. Id. at 1099. As explained below, the petitioners have failed to show either.

The petitioners have objected to every question posed to them, including questions as innocuous as those requesting their date of birth, on the ground that the information sought is protected by the Fifth Amendment. In essence, the petitioners have done nothing more than raise a blanket assertion of their Fifth Amendment privilege, something we have previously held is not available to these petitioners because of the civil nature of these proceedings. See Smith, 827 So.2d at 1029. Nevertheless, the trial court did make individual determinations regarding whether certain questions sought privileged information, and the petitioners have challenged those determinations in their petitions.

A witness is generally entitled to invoke the Fifth Amendment privilege against self-incrimination whenever there is a realistic possibility that his answer to a question can be used in any way to convict him of a crime. It need not be probable that a criminal prosecution will be brought or that the witness’s answer will be introduced in a later prosecution; the witness need only show a realistic possibility that his answer will be used against him. Moreover, the Fifth Amendment forbids not only the compulsion of testimony that would itself be admissible in a criminal prosecution, but also the compulsion of testimony, whether or not itself admissible, that may aid in the development of other incriminating evidence that can be used at trial. The privilege is inapplicable only “if the testimony sought cannot possibly be used as a basis for, or in aid of, a criminal prosecution against the witness.”

DeLisi v. Bankers Ins. Co., 436 So.2d 1099, 1101 (Fla. 4th DCA 1983) (quoting Pillsbury Co. v. Conboy, 459 U.S. 248, 266 n. 1, 103 S.Ct. 608, 74 L.Ed.2d 430 (1983) (Marshall, J. concurring)) (internal citations omitted). If the self-incriminating nature of the question is not clear from the face of the question, the party claiming the privilege may be required to provide sufficient information on which a trial court may find that a reasonable danger of incrimination exists. M.S.S. v. DeMaio, 503 So.2d 1384 (Fla. 5th DCA 1987). The trial court has the ultimate responsibility to determine whether the witness’s refusal to answer questions is in fact justifiable under the privilege. Id. at 1386. The trial court has broad discretion to determine what answers provided in discovery may incriminate or tend to incriminate a litigant. Delist v. Smith, 423 So.2d 934 (Fla. 2d DCA 1982).

The petitioners have failed to demonstrate that the trial court departed from the essential requirements of law in its rulings on their Fifth Amendment claims. The record reflects that the petitioners presented no argument to the trial court regarding most of their Fifth Amendment objections. With respect to the objections that they did argue, the trial court properly limited the scope of inquiry where the questions on their face appeared to call for a potentially incriminating response. To the extent that the trial court did not sustain the petitioners’ objections, it was with respect to questions that on their face did not appear to call for an incriminating response. The petitioners’ conclusory argument that the responses to those questions “may well include” or “could easily include” incriminating information is not adequate to meet their burden to demonstrate that there is a realistic possibility that the answer to those questions could be used to convict them of a crime. See Smith, 827 So.2d at 1029.

The petitioners also objected to each question posed by the State on the grounds that the questions sought information that was “irrelevant and immaterial to this action, cumulative, and multipli-cious” and that “the information requested is already known to the State, and is thus intended only to annoy, embarrass, oppress, and create undue burden and expense.” Certiorari generally does not lie to review the relevance of discovery, since the disclosure of information that is merely irrelevant is not likely to cause irreparable harm. Wal-Mart Stores, Inc. v. Cumming, 736 So.2d 1248 (Fla. 4th DCA 1999). The petitioners have failed to demonstrate that any irreparable harm will come to them from disclosure of the information they contend is irrelevant. Nor have the petitioners met their burden to demonstrate that they will be harmed by the discovery they claim is burdensome. An objection claiming an undue burden in responding to discovery requests must be supported by record evidence, such as an affidavit detailing the basis for claiming that the onus of supplying the information or documents is inordinate. Topp Telecom, Inc. v. Atkins, 763 So.2d 1197 (Fla. 4th DCA 2000). The petitioners did not make such a showing; instead, they relied on unsupported and conclusory claims of undue burden and expense.

Singleton, Rhoades, Beikirich, DeMarco, and Smith objected to every question posed by the State on the grounds that the questions sought information which was protected by the right to privacy in the United States Constitution and in article I, section 23 of the Florida Constitution; Sutton objected to all but a few. At the hearings on their objections, the petitioners presented no argument to the trial court regarding many of their privacy objections, and in their petitions, they have abandoned all but a few of the objections that were argued.

The threshold question we must address is whether the petitioners have established that those questions seek information that is within the scope of the protection offered under either the United States or the Florida Constitutions. The right to privacy under federal law protects areas such as marriage, procreation, family relationships, and the rearing and education of children. Bd. of County Comm’rs v. D.B., 784 So.2d 585 (Fla. 4th DCA 2001). The petitioners have failed to demonstrate that the challenged questions touch on areas protected by the federal right to privacy.

The Florida Constitution sets forth a right to privacy in article I, section 23, which provides: Florida’s right to privacy is broader than the federal right to privacy. Before the right to privacy attaches, there must be a legitimate expectation of privacy. City of N. Miami v. Kurtz, 653 So.2d 1025 (Fla.1995). Determining whether an individual has a legitimate expectation of privacy must be made by considering all the circumstances, especially objective manifestations of that expectation. Id. at 1028. Thus, we must first decide whether an inmate detained under the Jimmy Ryce Act has a reasonable expectation of privacy in the areas inquired into by the State.

Right of privacy. — Every natural person has the right to be let alone and free from governmental intrusion into the person’s private life except as otherwise provided herein. This section shall not be construed to limit the public’s right of access to public records and meetings as provided by law.

The petitioners objected to a question that asked them to state their familial relationship with the victim and witnesses in the cases in which they had been convicted. The petitioners have not demonstrated that they have a legitimate expectation of privacy with respect to this information. In apparent recognition of this fact, the petitioners have attempted to argue that the question could be interpreted as seeking information that “may be internal to the family.” We find no merit in this contention because the trial court limited the State’s inquiry to whether the petitioners are related by blood or marriage to the victims or witnesses. Given this limitation, there is no possibility that the question might seek information that is “internal to the family.”

The petitioners also objected to a series of questions regarding their physical health and their “psychological and psychiatric health and treatment.” With the exception of one question, each question regarding their mental health pertained to whether the petitioners may have sought, been offered, or received psychiatric or psychological treatment while incarcerated or while detained, or if they had ever been ordered by a court to seek such treatment. The petitioners have not offered any explanation regarding how these questions intrude into an area in which they have a legitimate expectation of privacy, nor have we been able to deduce one in light of the fact that section 394.921, Florida Statutes (2002), allows the disclosure of this type of information to, among others, the state attorney.

The one question that did not pertain to the petitioners’ treatment or lack thereof while in custody sought information regarding any mental health treatment or diagnosis the petitioners may have received at any time. While it appears that this question may touch on matters to which the petitioners might have a legitimate expectation of privacy, given the nature of the proceedings, that expectation is clearly outweighed by the State’s compelling interest in the long-term control, care, and treatment of sexually violent predators. See Jackson v. State, 833 So.2d 243 (Fla. 4th DCA 2002) (holding that the court should balance the defendant’s right to privacy with the State’s legitimate access to medical and psychological records of sexually violent predators). To the extent that any of the questions pertaining to their physical health may seek information that is protected as private, we conclude that the trial court did not abuse its discretion when it found that the State successfully demonstrated that its need for the information outweighed the petitioners’ right to privacy, which, given the petitioners’ status as Jimmy Ryce detainees, is minimal. See id. at 245; see also State v. Johnson, 814 So.2d 390 (Fla.2002) (stating that although a patient’s medical records enjoy a confidential status by virtue of the state constitutional right to privacy, the right to privacy will yield to compelling governmental interests).

The petitioners also objected to a question that sought information regarding their thoughts and feelings about the offenses for which they have been convicted. Although a person’s thoughts may be protected as private, in the context of these proceedings, any right these petitioners may have to keep their thoughts private is likewise outweighed by the State’s interest in obtaining the information sought by this question. See Shaktman v. State, 553 So.2d 148 (Fla.1989) (noting that the right of privacy demands that individuals be free from uninvited interference into their thoughts and actions unless the intrusion is warranted by a compelling state interest).

The petitioners also assert that information pertaining to their mental and physical health is protected by a variety of statutes that protect the confidentiality of medical records. On their face, the questions do not appear to implicate the statutory provisions on which the petitioners have relied. Nor have the petitioners’ arguments demonstrated that those provisions are applicable to the questions the State has posed.

The petitioners claim that some of the questions seek information protected by both the work product and attorney-client privilege.

Although it is impossible to give a precise definition of “attorney work product” that can be applied to all situations, it can be generally defined as “[pjersonal views of the attorneys as to how and when to present evidence, his evaluation of its relative importance, his knowledge of which witness will give certain testimony, personal notes and records as to witnesses, jurors, legal citations, proposed arguments, jury instructions, diagrams and charts he may refer to at trial for his convenience, but not to be used as evidence.”

Bishop v. Polles, 872 So.2d 272, 274 (Fla. 2d DCA 2004) (quoting Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 112 (Fla.1970)). The attorney-client privilege protects confidential communications between a lawyer and client. Jenney v. Airdata Wiman, Inc., 846 So.2d 664 (Fla. 2d DCA 2003). The burden to establish the existence of a privilege is on the party asserting the privilege. Fla. R. Civ. P. 1.280(b)(5); Wal-Mart Stores, Inc. v. Weeks, 696 So.2d 855 (Fla. 2d DCA 1997).

On their face, the questions the petitioners find objectionable do not appear to call for information protected by the work product or attorney-client privileges, and the petitioners have not presented any argument that would lead us to conclude that they in fact seek privileged information. Thus, the petitioners have not met then-burden to demonstrate that the trial court departed from the essential requirements of law in ordering them to answer the questions. See Wal-Mart, 696 So.2d at 856.

The petitions are denied.

STRINGER and COVINGTON, JJ., Concur.

      . In re Commitment of Singleton, 829 So.2d 402 (Fla. 2d DCA 2002); In re Commitment of Sutton, 828 So.2d 1081 (Fla. 2d DCA 2002); Commitment of Beikirich v. State, 828 So.2d 421 (Fla. 2d DCA 2002); Commitment of Smith v. State, 827 So.2d 1026 (Fla. 2d DCA 2002).


author: WHATLEY, Judge.

text:
    MANATEE COUNTY, Florida, a political subdivision of the state of Florida, Appellant, v. Julie M. REARDON, Anna Doris Woods, Deborah J. Dearhold, Alice Barron, Kaye Garms, and Gulfview Park L.L.C., Appellees.
    No. 2D04-071.
    District Court of Appeal of Florida, Second District.
    July 28, 2004.
    James A. Minix, Senior Assistant County Attorney, Bradenton, for Appellant.

      . John P. Harllee, III- and Adam Moham-ma'dbhoy of Harllee & Bald, P.A., Braden-ton, for Appellee Gulfview Park, L.L..C.
    No Appearance for Appellees Julie M. Reardon,' Anna Doris Woods, Deborah- J. Dearhold, Alice Barron, and Kaye Garms.
   WHATLEY, Judge.

Manatee County appeals an order awarding attorney’s fees and costs to Gulf-view Park. The award was based solely on an order finding that Manatee County was in contempt for failing to issue a permit to Gulfview Park. We reverse because in Manatee County v. Reardon, 880 So.2d 691 (Fla. 2d DCA 2004), this court reversed the order finding Manatee County in contempt, concluding that the circuit court had never ordered the County to issue the permit in question. Accordingly, because the contempt order was the sole basis for the attorney fee award and it was reversed on appeal, the attorney fee award must also be reversed.

Reversed.

SALCINES and VILLANTI, JJ., concur.


text:
    Lisa M. ABRIL and Roberto Abril, Appellants, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 2D03-3123.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.
    Dick W. Mount, Jr., Minerva, OH, for Appellants.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and David J. Glantz, Assistant Attorney General, Fort Lauderdale, for Appellee.
   CANADY, Judge.

Lisa M. Abril and her husband, Roberto Abril, appeal an order of the trial court dismissing their amended complaint against the Florida Department of Corrections (the department). Because we conclude that the complaint stated a cause of action, we reverse.

I. BACKGROUND

The amended complaint alleged that Mrs. Abril, in the course of her employment with the department as a senior licensed practical nurse at the Hendry County Correctional Institution, had given unprotected mouth-to-mouth resuscitation to an inmate. After it was determined that the inmate was infected with hepatitis C and that it was unknown whether the inmate was infected with HIV, Mrs. Abril unsuccessfully sought testing for hepatitis and HIV through the department’s workers’ compensation carrier, which declined to authorize the testing because it determined that the resuscitation did not expose her to a risk of infection. Subsequently, the institution’s chief medical officer submitted a blood sample from Mrs. Abril to Continental Laboratory, a laboratory under contract with the State of Florida to provide clinical laboratory services for inmates for HIV testing.

The complaint further alleged that a document indicating that the test results for HIV were positive was faxed to an unsecured fax machine in the institution’s business office and to another fax machine in Tallahassee at the department’s offices of Chief Health Services, despite Continental Laboratory’s assurances set forth in a prior fax to a “confidentially-secured” fax machine in the institution’s medical office that the results of the test were confidential and would be hand delivered. It was alleged that the faxes with the test results were sent in response to a request for the information from a department employee who was concerned that the use of Continental Laboratory for the testing of Mrs. Abril’s blood might not have been authorized. The complaint also alleged that a number of persons employed by the department, who were not authorized by law to know of the test results, became aware of the test results through Continental Laboratory’s transmission of the results to the fax machines. It was ultimately determined through testing, paid for by the workers’ compensation carrier, that Continental Laboratory’s HIV test on Mrs. Abril’s blood had produced a false positive and that Mrs. Abril had not in fact contracted HIV.

In count I of the complaint, Mrs. Abril sought damages for mental anguish and emotional distress arising from Continental Laboratory’s alleged negligent failure to follow proper procedures to maintain the confidentiality of the HIV test results. Count I claimed that the department was liable for Continental Laboratory’s negligence pursuant to section 768.28(10)(a), Florida Statutes (Supp.1996), which provides that

[hjealth care providers or vendors, or any of their employees or agents[ ] that have contractually agreed to act as agents of the [department] to provide health care services to inmates of the state correctional system shall be considered agents of the [department] for the purposes of [section 768.28, Florida’s sovereign immunity waiver statute], while acting within the scope of and pursuant to guidelines established in said contract or by rule.

In count II of the complaint, Mrs. Abril also sought damages for the negligence of the department and its employees in causing the test results to be improperly disseminated. However, Mrs. Abril does not argue on appeal that dismissal of this claim was improper. Consequently, we will not further address the dismissal of count II.

In count III of the complaint, Mr. Abril (who was a prison guard at the same institution as his wife) claimed damages for mental anguish and emotional distress arising from the disclosure of the test results. In count IV, Mr. Abril sought damages for loss of consortium. The complaint also contained a certification by the Abrils’ counsel of compliance with all medical malpractice presuit requirements, as well as a statement of compliance with the requirements set forth in section 768.28(6) concerning actions against the state.

The department filed a motion to dismiss the complaint on the ground that there was no statutory or common law duty for a laboratory or governmental entity to protect the confidentiality of HIV test results. The department also argued that the complaint should be dismissed because section 381.004, Florida Statutes (Supp.1996), which provides for criminal penalties and certain administrative sanctions for unlawful disclosure of HIV test results, does not authorize a private cause of action for such disclosure.

The trial court granted the motion to dismiss, concluding that “there has not been established in the State of Florida any common law or statutory duty of care which requires a governmental entity to protect the confidentiality of HIV test results.” The trial court also concluded that section 381.004 “provides criminal penalties for improper disclosure of HIV test results[ ] but does not authorize a private cause of action for such disclosure.”

II. ISSUES ON APPEAL

The Abrils argue that the department is vicariously liable for Continental Laboratory’s negligent breach of its duty to maintain the confidentiality of Mrs. Abril’s test results. The department argues that there is no private cause of action for the breach of such a legal duty. The department also contends that any claim by the Abrils arising from their mental anguish and emotional distress is barred by the impact rule. The Abrils contend that the impact rule is not applicable to their claims which are based on Continental Laboratory’s negligent breach of its duty to maintain the confidentiality of Mrs. Abril’s test results.

III. ANALYSIS

Section 381.004 contains a series of provisions governing HIV testing. Section 381.004(3)(f) provides that, subject to certain exceptions not pertinent here, “the identity of any person upon whom [an HIV] test has been performed and [the] test results are confidential” and that “[n]o person who has obtained or has knowledge of a test result pursuant to [section 381.004] may disclose ... the identity of any person upon whom a test is performed[ ] or the results of such a test in a manner which permits identification of the subject of the test” except as specifically authorized by law. Penalties for the violation of the provisions of section 381.004 are set forth in section 381.004(6). Under section 381.004(6)(a), “licensed health care providerfs]” violating the statute are subject to “disciplinary action.” Under section 381.004(6)(b), “[a]ny person who violates the confidentiality provisions” of the statute “commits a misdemeanor of the first degree.” The statute makes no mention of private causes of action arising from violations of its provisions.

"When a statute creates a clear duty of care, the violation of that duty can “generate[ ] a viable cause of action in tort.” Gracey v. Eaker, 837 So.2d 348, 353 (Fla.2002); see also deJesus v. Seaboard Coast Line R.R. Co., 281 So.2d 198 (Fla.1973) (discussing imposition of tort liability for violation of statutory duty); Lewis v. City of Miami, 127 Fla. 426, 173 So. 150, 152 (1937) (citing Restatement (First) of Torts section 286 (1934) statement of circumstances where violation of statutory duty will give rise to tort liability); Golden Shoreline Ltd. v. McGowan, 787 So.2d 109 (Fla. 2d DCA 2001) (discussing types of negligence per se that may arise from statutory violation); Newsome v. Haffher, 710 So.2d 184, 186 (Fla. 1st DCA 1998) (stating that “a cause of action in negligence per se is created when a penal statute is designed to protect a class of persons, of which the plaintiff is a member, against a particular type of harm”).

The circumstances in which a statutory provision will establish potential tort liability are set forth in Restatement (Second) of Torts section 286 (1965):

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative enactment ... whose purpose is found to be exclusively or in part
(a) to protect a class of persons which includes the one whose interest is invaded, and
(b) to protect the particular interest which is invaded; and
(c) to protect that interest against the kind of harm which has resulted, and
(d) to protect that interest against the particular hazard from which the harm results.

See also Restatement (Second) of Torts section 288 (discussing circumstances in which “requirements of a legislative enactment” will not be adopted “as the standard of conduct of a reasonable man”).

Here, the department has argued in essence that a tort cause of action can never arise from the violation of a statute unless the statute expressly authorizes such a cause of action. The department’s position is not supported by the case law set forth above. As we will further discuss below, in Gracey the supreme court held that a tort action arose from the violation of a statutory duty of confidentiality closely analogous to the statutory duty at issue in this case. The department makes no argument that the claims asserted in the instant case do not satisfy the requirements set forth in Restatement (Second) of Torts section 286 (1965).

The complaint filed by the Abrils alleges facts that would be sufficient to establish that Continental Laboratory violated a duty imposed on it by section 381.004 to maintain the confidentiality of HIV test results and to disclose those results only as authorized by law. The issue presented for resolution thus is not whether the complaint’s allegations are sufficient to establish the necessary elements of the existence of a duty and the breach of that duty. The dispositive question is whether the damages alleged — for mental anguish and emotional distress caused by Continental Laboratory’s breach of its duty— are cognizable under Florida law. The answer to this question depends on whether the impact rule is applicable to the claims at issue.

“The impact rule has had a long legal history in this State, beginning with [the supreme court’s] decision in International Ocean Telegraph Co. v. Saunders, 32 Fla. 434, 14 So. 148 (1893).” R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995). In Saunders, 14 So. at 152, the supreme court held that a claim for “mental suffering” arising from “the breach by the defendant telegraph company of its contract to promptly deliver a telegram summoning [the plaintiff] to the deathbed of his wife” was for an injury “that soars so exclusively within the realms of spirit land that it is beyond the reach of the courts to deal with, or to compensate by any of the known standards of value.” The court stated the general rule applicable to simple negligence cases:

[M]ental suffering was never allowed to be considered as an element of damages for which pecuniary compensation could be awarded, except ... in cases of torts, where there was some physical injury and bodily suffering, in which cases ... the mental suffering, incident to, connected with, and[ ] flowing directly from the physical injury was permitted to be considered in connection with the physical pain, both taken together, but not the one disconnected from the other.

Id. at 151. Ultimately, the requirement set forth in Saunders for “some physical injury,” id. at 154, came to be known in Florida law as the “impact rule.” See Gilliam v. Stewart, 291 So.2d 593, 594-95 (Fla.1974); Hollie v. Radcliffe, 200 So.2d 616 (Fla. 1st DCA 1967). “As explained by one commentator, the underlying basis for the rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.” R.J., 652 So.2d at 362 (citing Thomas M. Cooley, Cooley on Torts 97 (3d ed.1906)).

In a series of recent cases, the supreme court has “review[ed] the continued vitality of the impact rule[ ] and has consistently reaffirmed that the rule serves an important safeguard when applied under certain proper circumstances in our judicial system.” Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003). The supreme court has not, however, viewed the impact rule as “an inflexible, unyielding rule of law.” Id. Instead, the court has undertaken an examination of the appropriateness of applying the rule in various contexts. The court’s flexible approach to the application of the impact rule has led the court to establish certain “[exceptions to the rule.” Id. These “[e]xceptions to the rule have been narrowly created and defined in a certain very narrow class of cases in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale undergirding application of the impact rule.” Id.

The result has been that the impact rule has remained in place as a general restriction on claims for emotional distress damages but has been displaced in certain limited contexts where it previously was applied. In short, the reach of the rule has been reduced on an ad hoc basis as the court has weighed the merits of applying or not applying the rule to particular circumstances.

There are no cases directly addressing the application of the impact rule to a claim arising from the alleged violation of the confidentiality provision of section 381.004(3)(f). The supreme court has, however, addressed the issue of whether the impact rule should be applied to a claim arising from the violation of an analogous statutory confidentiality provision. In Gracey, the court considered whether the impact rule should be applied to bar a claim for emotional injuries arising from the wrongful disclosure of confidential information by a psychotherapist. The court held that “the impact rule is inapplicable in cases in which a psychotherapist has created a fiduciary relationship and has breached a statutory duty of confidentiality to his or her patient.” Gracey, 837 So.2d at 357. In reaching this conclusion, the court stated that it was “simply holding] that the impact rule is inapplicable under the particular facts of the case before us” and that its “holding should not be construed as bringing into question the continued validity of the impact rule in other situations.” Id. at 358.

The court’s analysis in Gracey focused on the alleged “breach of a duty of confidentiality” which arose from “a statutory confidential relationship.” Id. at 350-51. The court gave particular attention to the provisions of section 491.0147, Florida Statutes (1997), which “require[ ] psychotherapists to keep confidential the substance of patient communications.” Id. at 351 n. 2. The court reasoned that since “the statute unambiguously indicates the intent of the Legislature to protect from unauthorized disclosure the confidences reposed by a patient in his or her psychotherapist” the plaintiffs were entitled to bring suit “under the common law for a breach of duty that was imposed by statute.” Id. at 351. The court rejected the argument that the absence of an explicit authorization in the statute of private causes of action barred the plaintiffs’ action for violation of the statute. And the court specifically concluded that application of the impact rule to bar a claim for violation of section 491.0147 would “not accommodate the intent and purpose of’ the statute, but would “render! ] its protection meaningless.” Id. at 351. In support of its conclusion that application of the impact rule would be inappropriate, the court also observed that “[t]he only reasonable and logical injuries generally flowing from a violation of the statutory protection are emotional in nature.” Id. at 357.

The Gracey court also drew an analogy between the harm suffered when confidential information is disclosed by a psychotherapist and the harm that results from a defamation or invasion of privacy. The “emotional distress” suffered by a person whose secrets are revealed by a psychotherapist “is at least equal to that typically suffered by the victim' of a defamation or an invasion of privacy.” Id. The court focused not only on the extent of the mental suffering but also on the likelihood that emotional distress would in fact arise from a particular breach of duty. “[W]e can envision few occurrences more likely to result in emotional distress than having one’s psychotherapist reveal without authorization or justification the most confidential details of one’s life.” Id. Since “the impact doctrine ... generally is inapplicable to recognized torts in which damages often are predominately emotional, such as defamation or invasion of privacy,” Kush v. Lloyd, 616 So.2d 415, 422 (Fla.1992), the Gracey court reasoned that claims for the similar emotional distress arising from the disclosure of confidential information by a psychotherapist should likewise not be subject to the impact rule.

In the absence of a precedent from the supreme court directly addressing the application of the impact rule to claims for violations of the confidentiality requirement of section 381.004(3)(f), we conclude that the reasoning of the Gracey decision compels the conclusion that the impact rule should not be applied to such claims. We base our conclusion on the weight given by the Gracey court both to the legislature’s establishment of a statutory duty of confidentiality and to the analogy between the nature of the harm suffered as a consequence of the disclosure of confidential information and the harm arising from invasion of privacy and defamation. Further, following Rowell, 850 So.2d at 478, we conclude that Gracey controls the instant case because there is no legally significant distinction between the “foreseeability and gravity of the emotional injury involved” in the instant case and the “foreseeability and gravity of the emotional injury involved” in Gracey. In addition, the apparent “policy concerns” identified by Rowell as relevant to providing an exception from the impact rule are the same in this case as they were in Gracey.

The confidentiality provisions of section 491.0147 and section 381.004(3)(f) serve the same purpose: to protect individuals from the unwarranted disclosure of highly sensi-five information concerning their personal lives. The harm flowing from a violation of confidentiality by a psychotherapist is closely akin to the harm flowing from a breach of confidentiality with respect to an HIV test. “The only reasonable and logical injuries generally flowing from a violation” of either section 491.0147 or section 381.004(3)(f) “are emotional in nature.” Gracey, 837 So.2d at 357. In addition, “the legislative intent and its statutory implementation” would be rendered “meaningless and without substance” just as much by application of the impact rule to claims based on violation of the confidentiality requirement for HIV tests as it would by application of the rule to claims based on a psychotherapist’s breach of confidentiality. Id. Similarly, the analogy to claims for invasion of privacy and defamation applies as much to claims for breaches of confidentiality with respect to HIV tests as it does to claims for breaches of confidentiality by a psychotherapist. Finally, whether a claim arises under section 381.004(3)(f) or section 491.0147, the emotional injury that results from the breach of confidentiality meets the standard of “foreseeability and gravity” of harm discussed in Rowell, 850 So.2d at 478, as a basis for not applying the impact rule. And “countervailing policy concerns” — that is, policy concerns militating against establishing an exception from the impact rule — are no more apparent with respect to section 381.004(3)© than with respect to section 491.0147. Rowell, 850 So.2d at 478. In short, there is no principled basis for barring civil actions based on a breach of the statutory duty in section 381.004(3)© if civil actions based on a violation of section 491.0147 are not barred.

We acknowledge that the Gracey court discussed at length the existence of a fiduciary relationship between the plaintiffs and the psychotherapist who allegedly violated his fiduciary duty by improperly divulging confidential information. In the instant case, no allegations have been made that a fiduciary relationship existed between the Abrils and Continental Laboratory. The absence of allegations that a fiduciary relationship existed is not, however, sufficient to distinguish the instant case from Gracey. The significance of the existence of a fiduciary relationship resides in the duties that arise from that relationship. Whether or not Continental Laboratory had a fiduciary relationship with the Abrils, the existence of a duty on the part of Continental Laboratory to maintain the confidentiality of information relating to Mrs. Abril’s HIV test is unquestioned. Mrs. Abril’s interest in Continental Laboratory’s compliance with that duty was as compelling as the interests of the Graceys in the compliance by their psychotherapist with the duty of confidentiality which arose in the context of a fiduciary relationship.

Given the close similarity of the interests involved here with the interests at issue in Gracey, the rationale of Gracey requires that the impact rule not be applied in the instant case. We therefore conclude that the trial court erred in dismissing the claims that the Abrils have argued were improperly dismissed.

IV. CERTIFIED QUESTION

In light of the incremental approach the supreme court has adopted in addressing limitations on the application of the impact rule, we certify pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) that the following question upon which this decision passes is one of great public importance.

IS FLORIDA’S IMPACT RULE APPLICABLE IN A CASE IN WHICH IT IS ALLEGED THAT THE INFLICTION OF EMOTIONAL INJURIES HAS RESULTED FROM A CLINICAL LABORATORY’S BREACH OF A DUTY OF CONFIDENTIALITY UNDER SECTION 381.004(3)©, FLORIDA STATUTES (SUPP.1996), WITH RESPECT TO HIV TEST INFORMATION?

V. CONCLUSION

Based on our conclusion that the rationale of Gracey is applicable here, we reverse the trial court’s order insofar as it dismissed counts I, III, and IV of the complaint. The case is remanded for further proceedings on those claims. Since the Abrils have made no argument on appeal with respect to count II, the dismissal of that count of the complaint is affirmed.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and WALLACE, JJ„ concur.

      . Provisions governing the licensure and regulation of clinical laboratories are set forth in the Florida Clinical Laboratory Law, sections 483.011 et seq., Florida Statutes (1995). Section 483.181 contains provisions regarding the "[a]cceptance, collection, identification, and examination of specimens” by clinical laboratories. Section 483.181(2) provides that "[t]he results of a test must be reported directly to the licensed practitioner or other authorized person who requested it.” Section 483.221 authorizes the imposition for various administrative penalties “for the violation of any provision of [the Florida Clinical Laboratory Law] or rules adopted [thereunder].” Section 483.23(l)(a)(4) makes it unlawful for any, person to "[v]iolate or aid and abet in the violation of any provision of” the statute or the rules adopted thereunder. Under section 483.23(l)(b), offenses under 483.23(l)(a) are "misdemeanor[s] of the second degree.” Since we have determined that a duty to maintain confidentiality pursuant to section 381.004(3)(f) is applicable to this case, we need not address the application of the Florida Clinical Laboratory Law.

      . We note that RJ. has a superficial similarity to the instant case. In RJ., the supreme court addressed a claim for emotional damages arising from "a negligent HIV diagnosis” in which the plaintiff alleged that "he was incorrectly led to believe that he had contracted the HIV virus.” 652 So.2d at 362. The court held that "damages for emotional harm as a result of a misdiagnosis cannot be recovered without a showing of some physical injury as a result of the misdiagnosis.” Id. RJ. thus involved a factual element — an erroneous HIV test — that is also present in the instant case. The similarity between R.J. and the instant case ends at that point. The nature of the Abrils’ breach of confidentiality claim is entirely different from the misdiagnosis claim in RJ. The policy concerns relevant to establishing an exception from the impact rule for misdiagnosis claims are quite different from the concerns associated with establishing such an exception for breach of confidentiality claims. We further note that the inaccuracy of the HIV test results was not the basis for the claims in the instant case. The claims for breach of confidentiality could arise whether the information disclosed was accurate or inaccurate.

      . We note that the department in support of its motion to dismiss has not made any separate argument concerning the viability of Mr. Abril's claims in counts III and IV but has relied on its argument that there can be no private civil cause of action arising from the breach of confidentiality at issue. Since no argument has been presented regarding Mr. Abril’s standing to assert his independent claim for emotional damages in count III, we have had no occasion to address that issue. With respect to count IV, we simply note that "the impact rule is not applied to claims for loss of consortium.” Gracey, 837 So.2d at 356 n. 13.
      We also note that the department has made no argument concerning the applicability of section 768.28(10)(a) to the specific facts of this case. We thus have not addressed that question.


author: NORTHCUTT, Judge.

text:
    Vincente SANDOVAL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1347.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.

      James Marion Moorman, Public Defender, and Kevin Briggs, Assistant Public Defender, Bartow, for Appellant.
    Vincente Sandoval, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Vincente Sandoval, convicted of capital sexual battery, was sentenced without the assistance of counsel or a valid waiver of his right to counsel. For this reason, we reverse his sentence and remand for re-sentencing.

Approximately eighteen years after the fact, Sandoval’s great nephew accused Sandoval of fondling him when the nephew was seven years old. Based on the nephew’s testimony at trial, the jury convicted Sandoval of capital sexual battery. See § 794.011(2), Fla. Stat. (1983). The trial court sentenced Sandoval to life in prison with a twenty-five-year, minimum mandatory term. See § 775.082(1), Fla. Stat. (1983). Appellate counsel filed a brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Sandoval filed a pro se brief in which he complains that his appointed trial counsel denied him his right to testify and misinformed him about the potential sentence. Sandoval maintains his innocence of the charge and asserts that his nephew had a drug problem, stole from him, and concocted false allegations of sexual battery when Sandoval threatened to report the theft to police.

Sandoval’s pro se arguments on appeal are more properly the subject of post-conviction proceedings because ineffective assistance of counsel claims generally may not be raised on direct appeal. See Corzo v. State, 806 So.2d 642 (Fla. 2d DCA 2002). However, our Anders review of the record revealed that the trial court allowed Sandoval to discharge his counsel at sentencing and proceed pro se, but the court did not inquire into whether Sandoval’s waiver of his right to counsel was voluntary, knowing, and intelligent as required by Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). This fact was overlooked by the Anders briefs, and we ordered more briefing. We appreciate the State’s thoughtful assessment of this issue in its supplemental brief.

“An indigent defendant has the right to the assistance of counsel at every critical stage of the proceedings against him, including sentencing.” Smith v. State, 590 So.2d 1078, 1078 (Fla. 2d DCA 1991). “[T]he time for sentencing is one of those critical stages at-which the defendant should be represented by counsel.” Evans v. State, 163 So.2d 520, 522 (Fla. 2d DCA 1964). “The very nature of the proceeding at the time of imposition of sentence makes the presence of defendant’s counsel at that time necessary if the constitutional requirement is to be met. There is then a real need for counsel.” Id. (quoting Martin v. United States, 182 F.2d 225, 227 (5th Cir.1950)).

When a defendant seeks to discharge appointed counsel and proceed pro se, the trial court must determine whether the defendant is making a voluntary, knowing, and intelligent waiver of the right to counsel. State v. Young, 626 So.2d 655 (Fla.1993). “[T]he United States Supreme Court decision in Faretta and our [Florida Rule of Criminal Procedure] 3.111(d) require a reversal when there is not a proper Faretta inquiry.” Young, 626 So.2d at 657. It “is incumbent upon the court to determine whether the accused is knowingly and intelligently waiving his right to court-appointed counsel, and the court commits reversible error if it fails to do so.” Hardwick v. State, 521 So.2d 1071, 1074 (Fla.1988). But see Wilson v. State, 764 So.2d 813, 819 (Fla. 4th DCA 2000) (holding Faretta violation was harmless when defendant was without counsel for only a brief period of time during jury deliberations but “no action was taken which could have influenced the jury’s verdict”).

We recognize that Sandoval will almost certainly receive the same sentence on remand. But as the State noted in its supplemental brief, there is a constitutional imperative that must be honored. “An accused’s right to be represented by counsel is a fundamental component of our criminal justice system. Lawyers in criminal cases are ‘necessities, not luxuries.’ ” United States v. Cronic, 466 U.S. 648, 653, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984) (footnote omitted) (quoting in part Gideon v. Wainwright, 372 U.S. 335, 344, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)). Moreover, this is not the first time this court has reversed for resentencing when the length of the sentence was predetermined. See Sanders v. State, 787 So.2d 264, 265 (Fla. 2d DCA 2001) (reversing and remanding for resen-tencing because the circuit court imposed a life sentence without holding a sentencing hearing after the supreme court reversed a death sentence, even though “the only sentencing option available to the trial court was the imposition of a sentence for life imprisonment”) (citations omitted). Otherwise, the mere fact of a mandatory sentence would nullify a defendant’s constitutional right to counsel.

Indeed, the length of a convicted defendant’s sentence is not the only issue that may arise at a sentencing hearing. A harmless error analysis would require us to catalog the various responsibilities defense counsel would have borne at Sandoval’s sentencing and to determine, by a review of the record, whether Sandoval suffered any prejudice by counsel’s absence. But even if we could create a comprehensive checklist and determine the applicability of each potential motion or objection, the record still would not permit a conclusion that the absence of counsel was harmless. In cases such as this one, the appellate court may know only what the record shows. For example, the record does not contain privileged information exchanged in the attorney-client relationship, against which potential courses of action might be evaluated and pursued or rejected. Thus, the likelihood of assessing success on any particular issue would rely on our review of a patently insufficient record.

Accordingly, we affirm Sandoval’s conviction, reverse his sentence, and remand for resentencing with either appointed counsel or a valid waiver of the right to counsel.

WHATLEY and SALCINES, JJ., Concur.

      . For example, although Sandoval was convicted of a crime carrying a mandatory sentence, counsel might have filed a motion for new trial under Florida Rule of Criminal Procedure 3.600; a motion for arrest of judgment under Florida Rule of Criminal Procedure 3.610 on the grounds that the information was so defective it would not support a conviction, that the court lacked jurisdiction, that the verdict was uncertain, or that the defendant was convicted of an offense not charged; or a motion to have a lesser conviction entered under Florida Rule of Criminal Procedure 3.620 if the evidence did not sustain the verdict. Counsel would have assessed whether there was any reason why sentence could not be imposed under Florida Rule of Criminal Procedure 3.720, such as the defendant’s insanity, the defendant’s pardon, that the defendant was not the person convicted, or that the defendant was pregnant (the last being obviously irrelevant as to this defendant but not as to all defendants who might be facing mandatory sentences). The court at sentencing might also be determining the award of credit for jail time, restitution, and the imposition of a lien for the public defender's services. Counsel has the responsibility to make such objections at sentencing as may be necessary to keep the defendant's case in an appellate "pipeline.” See Smith v. State, 598 So.2d 1063, 1066 (Fla.1992). And at sentencing, as this court has previously recognized, “[t]he advisability of an appeal must then, or shortly, be determined.” Evans, 163 So.2d at 522 (quoting Martin, 182 F.2d at 227). These responsibilities apply equally, if not more so, to a defendant facing a mandatory sentence of life in prison.


author: SALCINES, Judge.

text:
    Donald E. RIEGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5606.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.
    James Marion Moorman, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   SALCINES, Judge.

Donald E. Rieger appeals his convictions and sentences for trafficking in Hydroco-done, sale of Oxycodone, possession of Ox-ycodone, sale of marijuana, and possession of marijuana, all of which resulted from a jury’s verdict of guilt. We affirm the convictions without discussion. We also affirm the sentences except for the mandatory minimum sentence for trafficking, which we reverse.

Rieger was sentenced to various terms including a fifteen-year minimum-mandatory term of incarceration on his conviction for trafficking in Hydrocodone under section 893.135(l)(c)(l)(b), Florida Statutes (2001), for an offense committed on January 30, 2002. The mandatory minimum sentencing provision was added by chapter 99-188, Laws of Florida, which this court has declared to be unconstitutional as a violation of the single subject requirement. See Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002) (table decision). This court has held that the subsequent reenactments of these provisions by the legislature cannot be retroactively applied without violating the Ex Post Facto Clauses in the United States and Florida Constitutions. Green v. State, 839 So.2d 748 (Fla. 2d DCA), review granted, Franklin v. State, 854 So.2d 659 (Fla.2003). Because Rieger’s offense date falls within the Taylor window, see Green, 839 So.2d at 750 n. 1, the mandatory minimum sentence was improper and must be reversed. Rieger must be resentenced on the trafficking offense. We again certify that Taylor and Green conflict with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA), review granted, 854 So.2d 659 (Fla.2003). See Adams v. State, 869 So.2d 579 (Fla. 2d DCA 2003), proceedings stayed, no. SC03-2293 (Fla. April 22, 2004).

Convictions affirmed, sentences affirmed except for mandatory minimum sentence which is reversed and remanded for resen-tencing, and conflicts certified.

STRINGER and CANADY, JJ., concur.

      . During the pendency of this appeal, Rieger filed a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), in which he challenged only the mandatory minimum sentence imposed on his conviction for trafficking.


author: SILBERMAN, Judge.

text:
    Ronald RILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-5701.
    District Court of Appeal of Florida, Second District.
    July 30, 2004.
   SILBERMAN, Judge.

Ronald Riley challenges the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because there are errors on both Riley’s scoresheet and his judgment, we reverse. Riley was convicted of two counts of sexual activity with a child between the ages of twelve and eighteen in a familial or custodial relationship, under section 794.011(8)(b), Florida Statutes (1995). He was sentenced under the 1994 sentencing guidelines to 231.7 months in prison. In his motion, Riley cited to Chavis v. State, 796 So.2d 607 (Fla. 2d DCA 2001), and argued that the trial court incorrectly calculated his sentence by scoring his offenses as level nine offenses. We agree. Chavis held that, because section 794.011(8)(b) was not listed as a level nine offense in the 1994 ranking chart under section 921.0012, it must be scored as a level seven offense. Id. at 608. Under a corrected scoresheet, Riley’s applicable sentencing range would be 100.5 to 167.5 months. Because his sentence of 231.7 months exceeds this range, Riley is entitled to resentencing.

We also note that Riley’s judgment incorrectly cites to section 794.011(2)(B), rather than section 794.011(8)(b). We therefore reverse and remand for correction of this scrivener’s error and for resen-tencing with the two counts of sexual activity with a child between the ages of twelve and eighteen in a familial or custodial relationship scored as level seven offenses under the 1994 guidelines.

Reversed and remanded with instructions.

SALCINES and KELLY, JJ., Concur.


author: FULMER, Judge.

text:
    Richard A. MEYERS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4292.
    District Court of Appeal of Florida, Second District.
    Aug. 4, 2004.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Judge.

Richard A. Meyers appeals the order designating him as a sexual predator pursuant to section 775.21(4)(a)(l), Florida Statutes (2001). He argues that he did not qualify for sexual predator designation and that the Florida Sexual Predator Act violates procedural due process. We agree that Meyers did not qualify for sexual predator designation and reverse.

Meyers was convicted of lewd and lascivious battery, a second-degree felony in violation of section 800.04(4), Florida Statutes (2001). An offender convicted of a violation of section 800.04 as a second-degree felony shall be designated a sexual predator if the offender has previously been convicted of or found to have committed, or pled nolo contendere or guilty to, regardless of adjudication, any of certain statutorily enumerated offenses. § 775.21(4)(a)(1)(b), Fla. Stat. (2001); Garcia v. State, 827 So.2d 1102 (Fla. 2d DCA 2002); Nicholas v. State, 844 So.2d 826 (Fla. 5th DCA 2003). The State admits that Meyers did not have the required previous offense. Therefore, we reverse the trial court’s order and remand with directions to remove the sexual predator designation.

Our reversal of the trial court’s order makes it unnecessary for us to address Meyers’ argument that the Florida Sexual Predator Act violates procedural due process. However, we note that this court has previously held that the Act does not violate procedural due process. See Milks v. State, 848 So.2d 1167 (Fla. 2d DCA 2008), review granted, 859 So.2d 514 (Fla.2003).

Reversed and remanded with directions.

SILBERMAN and KELLY, JJ., Concur.


text:
    John Clark DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-2102.
    District Court of Appeal of Florida, Second District.
    Aug. 6, 2004.

      James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine Coombs Cline, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

John Clark Daniels appeals his sentences in six cases for crimes committed in 2001 and 2002, following his open, no contest plea and the trial court’s denial of his motion for a downward departure sentence. Because the trial court incorrectly concluded that it did not have the ability to grant a downward departure in sentencing Daniels, we reverse the sentences and remand for resentencing.

Section 921.0016(4)(d), Florida Statutes (2001 & 2002), provides that the mitigating circumstances under which a departure sentence is reasonably justified - includes when “[t]he defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” At the hearing on his motion for downward departure, Daniels presented the testimony of Dr. Michael Greenberg, a licensed psychologist, to address this mitigator.

Dr. Greenberg testified that Daniels exhibited symptoms that were consistent with serious mental health problems. He noted that as a child, Daniels had received mental health treatment in a hospital or facility. After evaluating Daniels, Dr. Greenberg concluded that Daniels suffered from “poly substance dependence, schi-zoaffective disorder, bipolar type. He reported a history of being abused as a child, physically and sexually, if you will, by his report, as well as personality disorder not otherwise specified.” Dr. Greenberg opined that Daniels,was amenable to treatment, and he “didn’t .see any indications that his mental health problems were either under control or being treated.”

Dr. Greenberg further testified that Daniels needed to see a psychiatrist and undergo “extensive substance abuse treatment, counselling and therapy for people who have been reportedly victims of child abuse, extensive dual diagnosis treatment.” He recommended that Daniels receive specialized mental health treatment. The treatment would not be short-term but would be a minimum of one year or more. Dr. Greenberg noted that Daniels’ jail records reflect “all sorts of bizarre behavior” and are “filled with severe problems.” He was skeptical that Daniels would receive appropriate psychiatric treatment while incarcerated. Daniels needed antipsychotic medication, and none of the records or statements indicated that Daniels had received such medication while incarcerated.

At the conclusion of the evidence, the trial court stated:

Having considered the testimony of the doctor and of the defendant and review of the doctor’s reports and of the record, it is this Court’s decision that I cannot depart from the guidelines. The legislature has indicated those factors that the Court can consider as ■ reasons for departing downward. One of the things the legislature has said is that I cannot consider his substance abuse. So I can’t consider that. The only recommended treatment that we have right now is that he go into substance abuse treatment. There is no other basis. And I don’t see any reasons, any other reasons under the statute to depart downward from the guidelines.

(Emphasis added.)

When deciding whether to depart from the sentencing guidelines under section 921.0016, the trial court must first “determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). This issue involves a mixed question of law and fact, and the court’s decision “will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Id. If the trial court determines that it can depart, then it “must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068. This aspect of the trial court’s decision is reviewed for abuse of discretion. Id.

Here, the trial court never reached the second prong of the test. Instead, the court concluded that under the first prong there was no legal basis for departure because the only recommended treatment was substance abuse treatment. This conclusion is contrary to Dr. Greenberg’s testimony, which was the sole testimony presented concerning diagnosis and recommended treatment. Dr. Greenberg specifically testified regarding his dual diagnosis of mental disorder as well as substance abuse, and he opined that Daniels needed psychiatric treatment. The trial court did not state that Daniels failed to sustain his burden under section 921.006(4)(d), and it did not comment on the sufficiency of the evidence or indicate that it rejected any portion of Dr. Green-berg’s testimony. Rather, the court incorrectly stated that the only recommended treatment was substance abuse treatment.

The record evidence suggests that Daniels has a mental health diagnosis of schi-zoaffective disorder, bipolar type, that requires treatment separate from substance abuse treatment. Because it appears that the trial court misapprehended the evidence to conclude that it lacked the authority to depart from the sentencing guidelines, we reverse Daniels’ sentences and remand for resentencing. On remand, the trial court shall reconsider the motion for departure sentence in light of the evidence and this opinion. The parties may present additional evidence on this issue to address Daniels’ current status. Our opinion shall not be construed as requiring a particular disposition of Daniels’ motion; instead, the trial court must reconsider the motion because its statement that only substance abuse treatment had been recommended is contrary to the evidence.

Reversed and remanded for resentenc-ing.

DAVIS and COVINGTON, JJ., Concur.

      . The trial court case numbers are 01-4124, 01-4125, 01-4946, 02-2300, 02-3748, and 02-3807.

      . The pertinent provisions of section 921.0016(4)(d) are identical in the 2001 and 2002 statutes.