author: FARMER, J.

text:
    MAXFLY AVIATION INC., and Donald Lewandowski, Appellants, v. CAPITAL AIRLINES LTD., Appellee.
    No. 4D02-4999.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Gary Robert Fine of Rodham & Fine, P.A., Fort Lauderdale, for appellants.
    Michael D. Gelety and Laura Chukwima, Fort Lauderdale, for appellee.
   On Motion to Dismiss Appeal

FARMER, J.

In this case the trial court entered a money judgment on July 17, 2002. There is a dispute — which we are not able to resolve with the appendix we have — as to whether the motion for rehearing filed August 6th was timely, but it was denied on August 30th. Then on October 31st, ap-pellee filed a motion to “correct and modify” the July 17th judgment so as to add the post-judgment interest rate and the address of the judgment debtor. An amended judgment making these additions was entered on November 14th, to which the court appended the words nunc pro tunc. The notice of appeal was filed December 13th. Appellee moves to dismiss the appeal as untimely. We agree.

Before the adoption of the current rules of appellate procedure in 1978, the rule was well established that an amendment or modification of an order or judgment in an immaterial, insubstantial way does not toll the time within which to seek review. Where the modification or amendment materially changes the original order or judgment, however, the limitation period begins to run from the time of such modification or amendment. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971); Goode v. Hialeah Race Course, Inc., 246 So.2d 105 (Fla.1971). The St. Moritz court explained the policy thus:

“Only when the lower Court changes matters of substance, or resolves a genuine ambiguity, in a judgment previously rendered should the period within which an appeal must be taken or a petition for certiorari filed begin to run anew. The test is a practical one. The question is whether the lower court, in its second order, has disturbed or revised legal rights and obligations which, by its prior judgment, had been plainly and properly settled with finality.”

249 So.2d at 28 (quoting Fed. Trade Comm’n v. Minneapolis-Honeywell Regulator Co., 344 U.S. 206, 73 S.Ct. 245, 97 L.Ed. 245 (1952)).

Since the adoption of the current appellate rules, courts have continued to follow the earlier cases. For example, in Daytona Migi Corp. v. Daytona Automotive Fiberglass Inc., 417 So.2d 272 (Fla. 5th DCA 1982), the court explained:

“the amendment or modification of an order in an immaterial way does not delay the time for seeking review. St. Moritz Hotel v. Daughtry, 249 So.2d 27 (Fla.1971). The time for taking an appeal is tolled only if the second order changes matters of substance or resolves a genuine ambiguity. B.G. Leasing, Inc. v. Heider, 372 So.2d 184 (Fla. 3d DCA 1979). The test is whether the court in the second order has disturbed or revised legal rights and obligations which had been settled with finality in the original order. Id; cf. Salinger v. Salinger, 100 So.2d 393 (Fla.1958) (trial court order amending final decree, per stipulation of the parties, to provide for a different effective date did not suspend rendition of the original order and postpone the time for taking appeal).”

417 So.2d at 274. And in DeGale v. Krongold, Bass & Todd, 773 So.2d 630 (Fla. 3d DCA 2000), the court held that an amendment changing the name of one of the parties was neither material nor substantive and merely corrected clerical errors. See also B.G. Leasing, Inc., 372 So.2d at 184 (no substantive material change in deleting two defendants from final judgment).

This court, too, has reached similar results. In Friedman v. Friedman, 825 So.2d 1010 (Fla. 4th DCA 2002), we found that a modification adding the words “for which let execution issue” was not material and therefore did not delay the time for seeking review. See also Chan v. Brunswick Corp., 388 So.2d 274 (Fla. 4th DCA 1980) (words “for which let execution issue” are not essential in order for a judgment to be final); GEICO Fin. Serv., Inc. v. Kramer, 575 So.2d 1345 (Fla. 4th DCA 1991) (same). In Wells v. State, 796 So.2d 1276 (Fla. 4th DCA 2001), we held that the correction of the convicted defendant’s name to include the designation “Jr.” did not affect or alter the conviction settled by the final judgment.

Applying these holdings, we conclude that the addition of the post-judgment interest rate and the information pertinent to the judgment debtor do not disturb or revise the legal rights and obligations established by the July 17th judgment in any material way. They merely add facts that may become important if execution is attempted. In this sense the additions function as do the words “for which let execution issue” when added later.

The fact that the requirement to include the information relating to the judgment debtor comes from the legislature does not make the judgment interlocutory or nonfinal in the absence of such information. Appellants rely on section 55.01(2), Florida Statutes (2002), which requires that:

“Each final judgment shall contain thereon the address and the social security number, if known to the prevailing party, of each person against whom judgment is rendered.”

They argue that the statutory requirement to supply this information in a final judgment is mandatory, and therefore the judgment entered July 17th was not an “enforceable order which would be a final judgment.” We disagree.

Section 55.01(2) also expressly states that the “failure to include same shall in no way affect the validity or finality of a final judgment.” Obviously the legislature had this issue in mind in drafting the legislation. The statute specifically rejects any loss of finality for failure to comply with its terms. Thus, even assuming that the Legislature has the power to impose the requirement, the statute does not provide that judgments lacking the information be deemed nonfinal. We also note the trial judge’s careful addition of the words nunc pro tunc to the amended judgment indicates rather strongly that the court itself intended no material or substantive change and that the July 17th judgment should remain fully effective from the date of its original entry.

Accordingly, the judgment entered July 17th was final and then appealable. Even if the motion for rehearing delayed rendition, it was denied August 30th. Thus the notice of appeal could have been filed no later than 30 days after August 30th. Plainly, the December filing of the appeal was too late.

APPEAL DISMISSED.

GUNTHER and STONE, JJ., concur.


source: Caselaw Access Project

author: SHAHOOD, J.

license: Public Domain

text:
    Donald WATSON, Appellant, v. BROWNING FERRIS INDUSTRIES OF FLORIDA, INC., a Delaware corporation, BFI Waste Systems of North America, Inc., a Delaware corporation and Browning Ferris Industries, Inc., a Texas corporation, Appellees.
    No. 4D02-2568.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Richard A. Barnett of Richard A. Barnett, P.A., Hollywood and Gerald Lefebvre of Law Office of Gerald Lefebvre, Okeechobee, for appellant.
    William G. Edwards of Marlow, Connell, Valerius, Abrams, Adler & Newman, Miami, for appellees.
   SHAHOOD, J.

Appellant, Donald Watson (Watson), filed this negligence action against Browning Ferris Industries of Florida, Inc. (BF Fla.), BFI Waste Systems of North America, Inc. (BFI), and Browning Ferris Industries, Inc. (BF Industries) seeking damages for injuries he sustained on July 30, 1998, while working as a day laborer for BFI. Watson alleged that the driver of the BFI garbage truck to which he was assigned negligently operated the truck, causing it to run over Watson, and inflicting severe injury.

At issue in this appeal is whether the truck which was involved in the accident was titled to BF Fla. at the time of the accident such that BF Fla. would be liable as a matter of law based on Florida’s Dangerous Instrumentality Doctrine. The record shows that title to the truck was issued to BF Fla. on September 30, 1994. On September 30, 1997, BF Fla. executed an internal corporate resolution purporting to transfer title to the truck, as well as other assets, to BFI. The records of the Florida Department of Motor Vehicles do not reflect a change, however, until December 1998 or January 1999. The trial court found,

Title to the truck in question shows a name change from [BF Fla.] to [BFI] on December 22, 1998. However, [BFI] was the beneficial owner of the truck as a result of a transfer of all assets of [BF Fla.] to [BFI] in 1997. Both [BFI] and [BF Fla.] are wholly owned subsidiaries of [BF Industries].
The Court concludes that [BF Fla.] is not hable as owner of the vehicle under the doctrine of dangerous instrumentality. See Smith v. Ryder Truck Rentals, Inc., 182 So.2d 422 [ (Fla.1966) ].

It is not disputed that, at the time of the accident, the truck was titled to BF Fla. Appellees argue, however, that due to the resolution which transferred the assets internally from BF Fla. to BFI, BF Fla. is no longer liable for negligence involving the truck because BFI was the beneficial owner of the truck at the time of the accident.

Smith, upon which the trial court relied, addressed the issue of whether the lessor from whom the employer leased the motorcycle could be held liable under the dangerous instrumentality doctrine for injuries caused by the negligence of an employee. The court held that the lessor shared the employer’s workers’ compensation immunity and was not, therefore, liable for the injuries. The principle set forth in Smith has also been extended to those situations in which there is no formal lease agreement, but only an informal agreement to borrow the equipment. See Commercial Coatings of Northwest Fla., Inc. v. Pensacola Concrete Constr. Co., 616 So.2d 960 (Fla.1993).

Smith applies to this case only if one assumes the corporate resolution effectuated the transfer of beneficial ownership of the truck to BFI and BF Fla. then borrowed the truck for its daily operations. We cannot assume that, however, because the corporate resolution gave the president or vice president authority to transfer the assets only by executing a bill of sale or assignment. See Carothers v. Patton, 288 So.2d 293 (Fla. 3d DCA 1973)(holding that where resolution merely authorizes corporate officers to transfer assets, no transfer takes place until an assignment is perfected). Because there was no subsequent sale or assignment, nothing passed from BF Fla. to BFI at the time of the resolution; therefore, at the time of the accident, BF Fla. still held the title to the truck and may be subject to liability.

Accordingly, we reverse the trial court’s grant of summary final judgment in favor of appellee and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

POLEN, C.J., and GUNTHER, J., concur.

      . The parties agree that BFI, the employer of the person who was driving the truck, is ma-mune from suit under the workers' compensation statute.


author: PER CURIAM.

text:
    Jody BRUMIT, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-44.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marrett W. Hanna, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We agree with appellant that the evidence presented did not support her conviction of aggravated child abuse. We reverse the conviction and direct the trial court on remand to enter judgment for child abuse under section 827.03(1), Florida Statutes (1999). See § 924.34, Fla. Stat. (2002); Ellis v. State, 714 So.2d 1160, 1161 (Fla. 2d DCA 1998).

REVERSED AND REMANDED.

WARNER, GROSS and TAYLOR, JJ„ concur.


author: SHAHOOD, J.,

text:
    Louise Duffey PLUNKETT, Appellant, v. Todd Alan PLUNKETT, Appellee.
    No. 4D02-867.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Sara Lawrence of Law Office of Sara Lawrence, P.A., Miami, for appellant.
    No appearance for appellee.
   SHAHOOD, J.,

The trial court in this dissolution action awarded fees to former wife and entered a money judgment in her favor. Thereafter, the court refused to establish a reasonable payment plan despite the former wife’s many requests and the former husband’s refusal to pay. This was error.

Thus, we reverse that portion of the order denying the former wife’s request to establish a reasonable payment plan, and remand for an evidentiary hearing to determine the former husband’s financial situation and establish a payment plan with respect to all fee awards, except the first in the amount of $7,500.00. See generally Brown v. Smith, 705 So.2d 682 (Fla. 4th DCA 1998).

We also hold that the former wife is entitled to prejudgment interest on the fee award. See Quality Engineered Installation, Inc. v. Higley S., Inc., 670 So.2d 929 (Fla.1996); see also Wiederhold v. Wiederhold, 696 So.2d 923, 924 (Fla. 4th DCA 1997). Interest is to be calculated from the date of the Final Judgment of Dissolution, which is the date the trial court determined entitlement. Wiederhold, 696 So.2d at 924; see also Sumlar v. Sumlar, 827 So.2d 1079 (Fla. 1st DCA 2002)(the general rule is that interest becomes due and owing when the obligation is created).

REVERSED AND REMANDED.

GROSS, J., and MAASS, ELIZABETH, T., Associate Judge, concur.

      . With respect to the first fee award of $7,500.00, the issue of a reasonable payment plan is barred by the doctrine of res judicata.


text:
    M.V., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1491.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant and four other juveniles were charged with burglary of a structure and criminal mischief. The issue raised by appellant is identical to the issues raised by his cohorts in E.C. v. State, 841 So.2d 604 (Fla. 4th DCA 2003), and M.W. v. State, 841 So.2d 607(Fla. 4th DCA 2003), in which we reversed. We therefore reverse the denial of suppression in this case as well.

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


text:
    Earnest KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1969.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Carey Haughwout, Public Defender, and Tara Finnigan, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Ernest Kearse, appeals his adjudication and sentence for strong arm robbery. Appellant’s assistant public defender filed a motion to withdraw and supporting brief pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

We affirm the judgments and sentences without prejudice to appellant’s right to file a timely motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, if appropriate.

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


author: MAY, J.

text:
    COUSINS RESTAURANT ASSOCIATES, a limited partnership, by and through its general and managing partner, COUSINS MANAGEMENT CORP., Appellant, v. TGI FRIDAY’S, INC., a Texas Corporation, Appellee.
    No. 4D02-894.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Robert Zarco, Robert M. Einhorn and Himanshu M. Patel of Zarco Einhorn & Salkowski, P.A., Miami, for appellant.
    Michael D. Joblove, Nina Greene Kersh and Amanda Jason of Genovese Joblove & Battista, Miami, for appellee.
   MAY, J.

The plaintiff, Cousins Restaurant Associates, appeals a summary judgment entered against it in an action for tortious interference with an advantageous business relationship, and intentional and negligent misrepresentation. It argues the court erred when it denied the motion for leave to amend and entered summary judgment. We agree and reverse the summary judgment because we find that the trial court erred in denying the motion for leave to amend.

The complaint grew out of a failed business plan for the development and operation of a Friday’s restaurant near the Saw-grass Mills Mall. The plaintiff planned to acquire property satisfactory to TGI Friday’s, Inc., [TGIF] and enter into a management contract with TGIF to operate and manage the restaurant. Based upon TGIF’s assurances, the plaintiff sent a letter of intent to the property owner, conditioning the purchase upon TGIF’s approval of the selected site and entry into the management agreement. Needless to say, all did not go as planned. Subsequently, TGIF opened a company-owned restaurant within two-tenths of a mile from the plaintiffs originally proposed site.

The failure of the plan to reach its goal resulted in the plaintiff filing a complaint against TGIF. The first complaint alleged claims for breach of contract, breach of fiduciary duty, breach of covenant of good faith and fair dealing, a violation of section 817.416(2)(a), Florida Statutes (Supp.1996), and fraud. The trial court granted TGIF’s motion to dismiss without prejudice.

In July, 1997, the plaintiff filed an amended complaint, alleging claims for tortious interference with an advantageous business relationship and intentional and negligent misrepresentation. The trial court granted TGIF’s motion to dismiss the tortious interference claim without prejudice. The plaintiff sought leave to amend, which was resolved by an agreed order. In August, 1998, the plaintiff filed its second amended complaint, again alleging claims for tortious interference with an advantageous business relationship and intentional and negligent misrepresentation.

Two years of litigation transpired. In June, 2000, the plaintiff substituted counsel. In November and December, 2000, the plaintiff filed notices for jury trial expecting to receive a trial date several months into the future. On January 2, 2001, the court set trial for July 23, 2001. On January 29, 2001, the plaintiff moved to amend the complaint to include four (4) additional claims: tortious interference with an advantageous business relationship, promissory estoppel, violation of the Florida Deceptive and Unfair Trade Practices Act, and breach of an oral contract. The court denied the motion.

TGIF then filed a motion for summary judgment as to the plaintiffs second amended complaint. The trial court granted the motion and entered summary judgment. It is from this judgment and the court’s denial of the motion for leave to amend that the plaintiff appeals.

Florida Rule of Civil Procedure 1.190(a) provides that leave to amend “shall be given freely when justice so requires.” Trial courts’ decisions on motions for leave to amend are reviewed under an abuse of discretion standard. Video Indep. Med. Examination, Inc. v. City of Weston, 792 So.2d 680 (Fla. 4th DCA 2001). “Leave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.” Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996). The trial court did not rely on any of these reasons.

This is not a case where the plaintiff filed repetitive motions for leave to amend and abused the privilege. In fact, this was the first request for leave to amend unrelated to a defense motion to dismiss. This is not a case where the court found that TGIF would be prejudiced by the amendment. This is not a case where the court reviewed the allegations and determined that their pursuit would be futile.

It is a case where the trial court believed that the plaintiff made an intentional misrepresentation to the court that “[it was] ready to go to trial on the pleadings as they then existed while possessed of the knowledge that [it was] not ready to go to trial on the pleadings as they then existed.” It was the chronology of the plaintiffs filings, the notice of trial prior to the motion for leave to amend, that served as the court’s basis for denial of the motion. This is not a recognized basis for denying the motion for leave to amend.

As counsel explained during the hearing, it had anticipated that the trial date would be set far enough into the future to allow time for the amendment. The plaintiff sought to add claims based upon the same facts and circumstances underlying the existing complaint. The plaintiff advised the court that there would be no need to continue the trial date. And, the plaintiff was right. The trial date was set seven months into the future.

In reversing the summary judgment, we find no error in the court’s ruling on the three claims for relief that existed when the motion for summary judgment was heard. However, the denial of the plaintiffs motion for leave to amend deprived the plaintiff from asserting other claims, which may or may not have survived the motion. We do not pass on the viability of those claims. They may ultimately fail to survive the defenses that TGIF is sure to raise. However, the plaintiff is entitled to its day in court, given the lack of abuse and prejudice evident on this record. We leave to the trial court the issue of the alleged futility of these claims.

REVERSED AND REMANDED.

STEVENSON and HAZOURI, JJ., concur.

      . The Third Amended Complaint alleged two counts of tortious interference. Each count related to one of the two parcels of property considered for the location of the Friday’s restaurant.

      . We have not considered the court’s ruling on the request for production. The court may reconsider this issue upon remand in light of this opinion.


text:
    Marilyn FRASER-WATSON and Gary Watson, individually and as the natural parents and guardians of Javanni Watson, a minor, Appellants, v. MAXIM HEALTHCARE SERVICES, a foreign corporation, Appellee.
    No. 4D02-2674.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Ralph L. McGrath, Jr. of Benson, McGrath, Douglas, Angione, Phillips & Ross, P.A., Ft. Lauderdale, for appellants.
    Valerie Shea of Heinrich, Gordon, Har-grove, Weihe & James, P.A., Ft. Lauder-dale, for appellee.
   PER CURIAM.

Appellants brought this action alleging that an employee of appellee injured their child while she was providing health care. They appeal a summary judgment. Although the causal relationship between anything appellee’s employee did and the injury is tenuous on this record, appellee did not conclusively establish the absence of any genuine issue of material fact. We therefore reverse.

KLEIN, GROSS and TAYLOR, JJ., concur.


text:
    W.N., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, STATE OF FLORIDA, Appellee.
    No. 4D02-2952.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Barbara D. Stull, Port St. Lucie, for appellant.
    Crystal Y. Yates-Hammond, Fort Peirce, for appellee.
   FARMER, J.

We affirm the final order of termination only as to the older children born before 1999. Owing to several procedural irregularities, as well as the failure of the evidence to support the grounds for terminating the mother’s parental rights as to the youngest child, however, we partially reverse the final order. On remand, the trial court shall require the Department to offer the mother a case plan for the youngest child, as well as appropriate services in connection therewith. Meanwhile the court shall stay further proceedings on the Department’s petition to terminate her parental rights as to the youngest child, pending a reasonable opportunity for the mother to perform her obligations under such case plan.

REVERSED.

HAZOURI and MAY, JJ., concur.


text:
    Teofilo C. ROBLERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-4479.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    B. Sue Foreman of B. Sue Foreman, P.A., West Palm Beach, for appellant.
    Charlie J. Crist, Jr., Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant pled guilty to DUI manslaughter and other related charges and, one week after he was sentenced, filed a pro se motion to withdraw his plea alleging that his lawyer intimidated him and misinformed him. At the hearing appellant was unrepresented and his counsel testified against him. He appeals the order denying the motion to withdraw his plea, arguing that he was entitled to be represented by conflict-free counsel at the hearing on the motion to withdraw. The state concedes that appellant was entitled to counsel, Padgett v. State, 743 So.2d 70 (Fla. 4th DCA 1999). We disagree with the state’s assertion that the lack of representation could be harmless under these facts. Reversed.

KLEIN, GROSS and TAYLOR, JJ., concur.


author: GERSTEN, Judge.

text:
    Pastor TIJERINO, Appellant, v. Derlin P. ESTRELLA, Appellee.
    No. 3D02-1390.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Solangel Verde, Hialeah, for appellant.

      Pierce E. Rivera, for appellee.
    Before GERSTEN, FLETCHER, and SHEVIN, JJ.
   GERSTEN, Judge.

We affirm the order below finding the trial court properly dismissed the appellant’s paternity suit. A putative father does not have standing to seek to establish paternity of a child, where the child was born into an intact marriage, and where the married woman and her husband object to the paternity action. See Johnson v. Ruby, 771 So.2d 1275 (Fla. 4th DCA 2000); I.A. v. H.H., 710 So.2d 162 (Fla. 2d DCA 1998); G.F.C. v. S.G., 686 So.2d 1382 (Fla. 5th DCA 1997).

The presumption of the legitimacy of a child born in wedlock is one of the strongest presumptions known to the law and is deeply rooted in this Nation’s history and tradition; statutes preserving this presumption do not violate constitutional rights. See Michael H. v. Gerald D., 491 U.S. 110, 124, 109 S.Ct. 2333, 105 L.Ed.2d 91 (1989)(“[T]he Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition.”).

We decline the appellant’s invitation to depart from the well established authority in this State and others, which recognizes the importance of preserving the legitimacy of a child born in wedlock. See G.F.C. v. S.G., 686 So.2d at 1382. Opening the door to unfettered challenges to the sanctity of marriage, as well as to the potential for baseless and intrusive paternity challenges, is not in the best interests of our children.

Affirmed.


text:
    Joseph E. COLLINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2591.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Karen Finkle, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s written order of revocation of probation did not conform to its oral ruling. The written order found appellant guilty of a violation for committing the crime of robbery. The court’s oral ruling was that appellant had violated his probation by committing the lesser included crime of petit theft. We remand with directions that the trial court enter a written order to conform with the court’s oral pronouncement. See Rodriguez v. State, 777 So.2d 1175 (Fla. 4th DCA 2001).

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


text:
    Robert DUGAN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-189.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Copertino v. State, 726 So.2d 330, 332 (Fla. 4th DCA 1999).

STONE, WARNER, and STEVENSON, JJ„ concur.


author: MAY, J. STONE, J.,

text:
    Julian INGRASSIA, Petitioner, v. Joseph THOMPSON, Warden, Madison Correctional Institution, and The State of Florida, Respondents.
    No. 4D02-20.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Julian Ingrassia, Arcadia, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   MAY, J.

The defendant filed a pro se petition for writ of habeas corpus, alleging that his appellate counsel was ineffective for failing to raise the trial court’s restriction of defense counsel’s questioning on voir dire as an issue on direct appeal. We agree that counsel was ineffective in failing to raise this issue and grant the petition. The defendant shall be permitted a belated appeal related solely to this issue.

The defendant was charged with two counts of indecent assault and two counts of a lewd or lascivious act in the presence of a child. He was found guilty of one count of lewd and lascivious act in the presence of a child, one count of indecent assault, and the lesser included offense of an unnatural and lascivious act. A critical issue at trial concerned the defendant’s statement to the police and his subsequent recantation.

During voir dire, defense counsel sought to query the prospective jurors concerning their beliefs on a defendant’s decision to testify at trial and their attitude toward a defendant’s recantation. Initially, the trial court prohibited both areas of inquiry. After further discussion, the trial court only prohibited defense counsel from pursuing the recantation line of inquiry. The court considered defense counsel’s line of inquiry to be an attempt to pretry the facts. Appellate counsel did not raise this issue on direct appeal.

To establish ineffectiveness of counsel on appeal the petitioner must show two things:

first, that there were specific errors or omissions of such magnitude that it can be said that they deviated from the norm or fell outside of the range of professionally acceptable performance; and second, that the failure or deficiency caused a prejudicial impact on the [petitioner] by compromising the appellate process to such a degree as to undermine confidence in the fairness and correctness of the outcome under the governing standards of decision.

Johnson v. Wainwright, 463 So.2d 207, 209 (Fla.1985); Meyer v. Singletary, 610 So.2d 1329 (Fla. 4th DCA 1992).

The underlying issue in this case is similar to the issue in Lavado v. State, 492 So.2d 1322 (Fla.1986). In Lavado, the Florida Supreme Court held that the trial court erred when it restricted defense counsel’s ability to voir dire prospective jurors concerning their willingness to accept a voluntary intoxication defense. The Court adopted Judge Pearson’s dissent in the underlying opinion of the Third District Court of Appeal. He had labeled the trial court’s restriction as “an error of the most basic and harmful sort” and was “as wrong as it would have been had it ... denied counsel the right to question prospective jurors altogether.” Lavado v. State, 469 So.2d 917, 919 (Pearson, J., dissenting). Judge Pearson and the Florida Supreme Court found the requested inquiry especially critical because the defense of voluntary intoxication was “disfavored by a large segment of the public.” Id. at 920; Lavado, 492 So.2d at 1323 (adopting Judge Pearson’s dissent in its entirety); see also Chandler v. State, 744 So.2d 1058 (Fla. 4th DCA 1999); Walker v. State, 724 So.2d 1232 (Fla. 4th DCA 1999); and Lowe v. State, 718 So.2d 920, 923 (Fla. 4th DCA 1998).

The similar concern exists in this case. See, e.g., Moses v. State, 535 So.2d 350 (Fla. 4th DCA 1988)(reeognizing that the rationale of Lavado is not limited to legal defenses). The defendant was charged with sex offenses involving a child, charges disfavored by society. He made a statement to police affirming the child’s version of the facts, which he later recanted. Recantation is also likely to be disfavored by a large segment of the public. Dobbert v. Wainwright, 468 U.S. 1231, 1233-34, 105 S.Ct. 34, 82 L.Ed.2d 925 (1984).

The State has responded that the defendant and trial counsel’s affirmative acceptance of the jury without objection failed to preserve the issue for appellate review. On this limited record and argument we cannot reach that conclusion. The trial court’s restriction of defense counsel’s voir dire should have been raised during the direct appeal. Only then could the issue be fully briefed and properly considered. Appellate counsel’s failure to do so fell outside the range of acceptable performance and compromised the appellate process to such a degree as to undermine the fairness and correctness of the outcome. See Johnson, 463 So.2d at 207; Meyer, 610 So.2d at 1329. In short, it amounted to ineffective assistance of appellate counsel.

We note the dissent’s reliance on Joiner v. State, 618 So.2d 174 (Fla.1993), and Berry v. State, 792 So.2d 611 (Fla. 4th DCA 2001). However, those cases did not involve a trial court’s restriction on voir dire. Further, this case is distinguishable from both Joiner and Berry since here the trial judge repeatedly assured the defendant that the issue was “preserved on the record” for appellate review.

For the foregoing reasons, the petition is granted. The remedy in a habe-as corpus proceeding is dictated by the nature of the issue and “rests largely in the discretion of the court.” Wainwright v. Temple, 360 F.2d 598, 599 (5th Cir.1966)(citing Ex parte Royall, 117 U.S. 241, 6 S.Ct. 734, 29 L.Ed. 868 (1886)). The finding of ineffective assistance of appellate counsel does not necessarily dictate the ordering of a new trial. See, e.g., Kleckley v. State, 810 So.2d 1081 (Fla. 4th DCA 2002); Wyatt v. State, 697 So.2d 1289 (Fla. 5th DCA 1997). We therefore grant a belated appeal restricted to this single issue where both the defense and the State may fully brief the issue.

STEVENSON, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would deny the petition. In my judgment, reasonable appellate counsel could conclude, on this record, that the issue was waived by the defense accepting the jury and by failure to preserve its objection to the trial court’s ruling by renewal prior to counsel’s accepting the jury. Joiner v. State, 618 So.2d 174 (Fla.1993); Berry v. State, 792 So.2d 611 (Fla. 4th DCA 2001).


author: BAILEY, JENNIFER D., Associate Judge.

text:
    Alan and Teresa COHEN, a/k/a Tess Cohen and First International Estate Jewelers of Florida, Inc., Appellants, v. KRAVIT ESTATE BUYERS, INC. and Mark Kravit, Appellees.
    No. 4D01-4955.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.

      Diane H. Tutt and Sharon C. Degnan of Diane H. Tutt, P.A., Plantation, for appellants.
    Michael Winer of Winer & Associates, P.A., Fort Lauderdale, for appellees.
   BAILEY, JENNIFER D., Associate Judge.

This case arises from a breakdown in the parties’ business relationship in the showing, purchase and resale of estate jewelry, art, coins and antiques. Kravit Estate Buyers and its president, Marc Kravit, (collectively referred to as “Krav-it”) and First International Estate Jewelers of Florida, Inc. (“First International”) and its Chief Executive Officer, Alan Cohen (“Cohen”), went into the estate purchase/sale business together. They conducted shows where jewelry, watches, coins, and art objects were bought and sold, dividing the net profits. The relationship soured, and Cohen accused Kravit of removing items to be sold from the inventory and converting them to his private use.

In 1995, Kravit sued First International, Cohen and his wife. The claims included misappropriation of trade secrets, tortious interference with contract, malicious prosecution, slander, unjust enrichment, abuse of process, and conspiracy. Cohen and First International counterclaimed for breach of contract and defamation. The case went to trial. However, due to error in admitting certain evidence, the trial judge granted a new trial. Cohen amended his counterclaim by adding claims for conversion, civil theft, fraud, and unjust enrichment. First International dropped out of the case and Kravit moved for summary judgment on the counterclaim. The trial judge entered summary judgment as to the civil theft, conversion, fraud, and unjust enrichment claims. Ultimately a final judgment was entered which Cohen appeals.

It is axiomatic that “[sjummary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citation omitted). Appellate review is conducted de novo. See id.

As to the conversion and civil theft counts, review of the record reflects no genuine issues of material fact and establishes entitlement to judgment as a matter of law because appellants failed to demonstrate a property interest in the objects at issue. Therefore, we affirm the entry of summary judgment on these counts.

However, the record does reveal issues of material fact as to the fraud count. “The essential elements of a fraud claim are: (1) a false statement concerning a specific material fact; (2) the maker’s knowledge that the representation is false; (3) an intention that the representation induces another’s reliance; and (4) consequent injury by the other party acting in reliance on the representation.” Lopez-Infante v. Union Cent. Life Ins. Co., 809 So.2d 13, 15 (Fla. 3d DCA 2002) (citation omitted). In fraud cases, summary judgment is rarely proper as the issue so frequently turns on the axis of the circumstances surrounding the complete transaction, including circumstantial evidence of intent and knowledge. See Dep’t of Revenue v. Rudd, 545 So.2d 369, 372 (Fla. 1st DCA 1989). In this case, Kravit argues that summary judgment was proper because Cohen testified that although he did not know Kravit’s intent at the time they entered into the relationship, he expected Kravit to pay him and could not testify that Kravit did not intend to do so. Kravit moved for summary judgment on the grounds of absence of testimony on the essential element of intent. Cohen argues that intent is a question for the jury, considering all the circumstances, and that he could only testify to what he believed when he entered into the agreement.

Kravit’s argument turns fraud in the inducement inside-out. Presumably if a bargaining party knew the other party intended to defraud him at the time he entered into the agreement, he would not enter into the deal. It was not necessary for Cohen to testify personally as to Krav-it’s knowledge that the representation was false. “ ‘Fraudulent intent usually must be proved by circumstantial evidence and such circumstances may, by their number and joint consideration, be sufficient to constitute proof.’” Id. (quoting Nally v. Olsson, 134 So.2d 265, 267 (Fla. 2d DCA 1961); Tornwall v. Carter, 106 So.2d 96, 99 (Fla. 2d DCA 1958)). “ ‘A litigant has a right to trial where there is the slightest doubt as to the facts’ in a fraud case.” Id. (quoting Dean v. Gold Coast Theatres, Inc., 156 So.2d 546, 549 (Fla. 2d DCA 1963)). The record in this case reflects sufficient issues of Kravit’s intent to require a jury trial on this issue.

Similar problems exist as to the unjust enrichment count where Cohen never received his expected benefit under the agreement. In sum, Cohen asserts that because Kravit took some of the items for personal use and never resold them, therefore never generating the profits subject to division under the agreement, Cohen was never paid for his services in securing the items. Conversely, Kravit asserts that because Cohen had no ownership interest in the items, he did not have a cognizable claim for unjust enrichment. Kravit’s argument fails to recognize that it is not the jewelry or art objects for which unjust enrichment recovery is sought, but rather, the lost expectation payment for agreed-upon services securing the jewelry or art objects, which payment was to occur upon resale of the items. To plead a cause of action for unjust enrichment the plaintiff must allege: “(1) plaintiff has conferred a benefit on the defendant, who has knowledge thereof; (2) defendant voluntarily accepts and retains the benefit conferred; and (3) the circumstances are such that it would be inequitable for the defendant to retain the benefit without paying the value thereof to the plaintiff.” Hillman Constr. Corp. v. Wainer, 636 So.2d 576, 577 (Fla. 4th DCA 1994) (citation omitted). No property interest is required. It is enough to establish a benefit was conferred, which is clearly a question of fact in this record. Kravit argues that summary judgment was appropriate because Cohen has unclean hands. Such an argument is not an appropriate vehicle to resolve disputed issues of fact. See Dery v. Occhiuzzo & Occhiuzzo Enter., Inc., 771 So.2d 1276, 1279 (Fla. 4th DCA 2000) (citation omitted).

For the reasons stated above, judgment as to conversion and civil theft is affirmed, the judgment as to fraud and unjust enrichment is reversed.

KLEIN and STEVENSON, JJ„ concur.


text:
    BOCA GOLF VIEW, LTD., Appellant, v. HUGHES HALL, INC., Appellee.
    No. 4D02-2641.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    John H. Pelzer of Ruden, McClosky, Smith, Schuster & Russell, P.A., Fort Lauderdale, for appehant.

      Theodore L. Tripp, Jr. and Elisa S. Worthington of Garvin & Tripp, P.A., Fort Myers, for appellee.
   PER CURIAM.

Boca Golf View, Ltd. (“Boca Golf’), the plaintiff in the trial court, appeals the entry of an involuntary dismissal on its claim for breach of contract at the close of its case in a non-jury trial. We reverse.

Like a directed verdict in a jury trial, an involuntary dismissal is appropriate if the plaintiff fails to establish a prima facie case. See Lustig v. Garcia, 789 So.2d 482, 483 (Fla. 4th DCA 2001); Miller v. Nifakos, 655 So.2d 192, 193 (Fla. 4th DCA 1995). To rule on the motion for involuntary dismissal, the trial court was required to view the evidence in the light most favorable to the plaintiff, resolving every conflict and inference in its favor. See Dockery v. Enter. Rent-A-Car Co., 796 So.2d 593, 599-600 (Fla. 4th DCA 2001).

Boca Golf presented a prima facie case for breach of contract. It contended that appellee, Hughes Hall, Inc., breached its contractual duty to provide a study that conformed to the requirements of the City of Boca Raton. A significant basis of the trial court’s ruling was that Boca Golf caused its own damages by failing to timely submit the study to the City after receiving it. This issue should properly have been raised as an affirmative defense. It was not. Boca Golf preserved its objection to this basis for the court’s ruling.

An affirmative defense not pleaded is deemed waived. See Fla. R. Civ. P. 1.110(d); Martin v. E. Airlines, Inc., 630 So.2d 1206, 1208 (Fla. 4th DCA 1994); Maxfly Aviation, Inc. v. Gill, 605 So.2d 1297, 1300 (Fla. 4th DCA 1992) (finding that the failure to mitigate damages was an affirmative defense that should have been specifically pled). “An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties” is not an appropriate matter for a trial court’s determination. Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989); see also Fla. Atl. Marine, Inc. v. Seminole Boatyard, Inc., 630 So.2d 219, 220-21 (Fla. 4th DCA 1993). The trial court erred when it relied on a defense not raised by the pleadings to grant the motion for involuntary dismissal.

The judgment is reversed and the case is remanded for a new trial. See Wimbledon Townhouse Condo. I, Ass’n v. Wolfson, 510 So.2d 1106, 1109 (Fla. 4th DCA 1987); Panet v. Rexod Corp., 345 So.2d 825, 827 (Fla. 4th DCA 1977) (reversing for new trial where the court erroneously granted an involuntary dismissal at the close of plaintiffs case); Alcott v. Wagner & Becker, Inc., 328 So.2d 549, 551 (Fla. 4th DCA 1976).

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Kodi Lonshay HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 02-1958.
    District Court of Appeal of Florida, First District.
    May 1, 2003.

      Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The departure sentence is REVERSED and REMANDED with directions that the trial court impose a guidelines sentence. See Butler v. State, 765 So.2d 274 (Fla. 1st DCA 2000).

BOOTH and POLSTON, JJ., concur; BENTON, J., dissents.


text:
    Dewayne COOPER, Petitioner, v. James V. CROSBY, Secretary, Department of Corrections, Respondent.
    No. 1D02-3017.
    District Court of Appeal of Florida, First District.
    May 1, 2003.
    Dewayne Cooper, petitioner, pro se.
    Louis A. Vargas, General Counsel, and Sheron Wells, Assistant General Counsel, Department of Corrections, Tallahassee, for respondent.
   PER CURIAM.

Upon consideration of the merits thereof, the petition for writ of certiorari is DENIED.

BARFIELD, BROWNING and LEWIS, JJ., concur.


author: BROWNING, J.

text:
    STATE of Florida DEPARTMENT OF REVENUE, o/b/o Christina G. Crane, Appellant, v. Michael H. FACKLER, Appellee.
    No. 1D01-3037.
    District Court of Appeal of Florida, First District.
    May 1, 2003.

      Charlie Crist, Attorney General and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   BROWNING, J.

This is an appeal from a summary judgment in a paternity action. The dispute centers on whether an amended affidavit of paternity should have been considered by the trial court. We hold that the affidavit should have been considered, or if it was considered that the trial court erred as a matter of law, and thus reverse.

The original affidavit of paternity alleged that sexual relations between the mother and the Appellee in April and May of 1998 resulted in the birth of a child on January 27, 2000. Appellee filed a motion for summary judgment, alleging that a gestation period of 20 months was physically impossible in humans. In an attempt to correct the typographical error, Appellant filed an amended paternity affidavit alleging that sexual relations occurred in April and May of 1999. This amended affidavit was received by Appellee’s counsel the Friday before a Monday hearing, and he objected at that hearing to lack of notice. The trial court granted summary judgment for Appellee.

Appellant admits that the amended affidavit was served late. See Fla. Fam. L.R.P. 12.510, Fla. R. Civ. P. 1.510(c). However, both Florida’s Rules of Civil Procedure and case law permit a trial court, in its discretion, to accept affidavits to supplement other affidavits, even if the supplemental affidavits are late. See Fla. R. Civ. P. 1.510(e); Roberts by and through Drusko v. Abrunzo, 604 So.2d 564 (Fla. 2d DCA 1992). Trial courts need not accept supplemental affidavits that conflict with earlier-filed affidavits from the same party. See International Cmty. Corp.Tampa v. Davis Water and Waste Indus., Inc., 455 So.2d 1164, 1166 (Fla. 2d DCA 1984). However, International Cmty. is not controlling because here Appellant presents a simple, reasonable explanation for the discrepancy, and the change does not affect the relief sought, whereas in International Cmty., the supplemental document relied on different sections of law and used updated financial figures.

It is not clear that the trial court considered the second affidavit. Rule 1.510(e) and the above case law give the trial court discretion to consider the second affidavit. Because the most important consideration in a paternity case is the best interest of the child, the trial court should have considered the second affidavit. See, e.g., Department of Revenue ex rel. R.A.E. v. M.L.S., 756 So.2d 125 (Fla. 2d DCA 2000). Accordingly, if the trial court did not consider that document, the trial court abused its discretion.

If the trial court did consider the second affidavit, it is clear that the trial court erred in granting summary judgment to Appellee, because the second affidavit’s allegations that sexual relations occurred between the mother and the Appellee nine months before the birth of the child allow a reasonable inference of a genuine dispute of material fact, namely, whether Appellee is the father. See Albelo v. Southern Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996), citing Pan Am. Distributing Co. v. Sav-A-Stop, Inc., 124 So.2d 753 (Fla. 1st DCA 1960).

Accordingly, we REVERSE the summary judgment, and REMAND to the trial court for further proceedings.

ALLEN, C.J. and WEBSTER, J., CONCUR.


text:
    N.L., mother of S.W., a child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 1D02-0454.
    District Court of Appeal of Florida, First District.
    May 1, 2003.

      Mary C. O’Rourke, Esquire of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    Phillippa G. Hitehins, Esquire, Lake City, for Appellee.
   PER CURIAM.

N.L., the mother of S.W., appeals an order terminating her parental rights. The court below found that both subsections 39.806(l)(c) and (l)(f), Florida Statutes (2000), authorized termination of parental rights. Because the record contains no competent substantial evidence supporting termination under subsection (l)(f) of section 39.806 and contains no evidence of the provision of services (or the futility of providing services) necessary for termination under subsection (l)(c), we reverse and remand.

Background

On the morning of October 20, 2000, N.L. took her nine-month-old daughter, S.W., to a hospital emergency room because the child’s left arm was red and swollen. X-rays revealed a fracture at the proximal end of the left humerus ten to fourteen days old. Emergency room personnel placed a call to the abuse hotline maintained by the Department of Children and Family Services (DCFS). The police were contacted, and N.L. was interrogated. N.L. told both the emergency room personnel and the police that her live-in boyfriend, S.W.’s father, had said that, when the child reached around his neck the evening before, he heard a popping noise. The boyfriend reiterated this account. A nurse practitioner affiliated with the Child Protection Team examined the child and concluded that the fracture was the result of child abuse.

DCFS employees took custody of the child and later filed an emergency shelter petition asserting child abuse. The trial court granted the petition by order entered on October 23, 2000, giving DCFS legal custody of the child. DCFS eventually placed S.W. with her maternal grandmother in North Carolina. Neither this placement decision nor the emergency shelter order is at issue on the present appeal.

Without preparing a case plan or offering to do so, DCFS filed a petition for termination of parental rights. As amended, the petition alleged that both parents engaged in egregious conduct or had the opportunity and ability to prevent egregious conduct detrimental to S.W. and knowingly failed to do so, within the meaning of section 39.806(l)(f), Florida Statutes (2000). The amended petition also alleged that both parents engaged in conduct that threatened S.W.’s life, safety, well-being, or health within the meaning of section 39.806(l)(c), Florida Statutes (2000), irrespective of the provision of services.

In January 2001, the boyfriend consented to, and the trial court subsequently ordered, termination of his parental rights. In March 2001, the boyfriend pleaded guilty to aggravated child abuse of S.W. and was sentenced for that offense.

The DCFS petition remained pending as to N.L. and came on for hearing on May 2, 2001. A radiologist testified that, based on the extent to which they had healed, S.W.’s fractures had occurred ten to fourteen days before x-rays were taken of S.W. on October 20, 2000. These and other x-rays revealed fractures of S.W.’s right tibia, left tibia, and left humerus. In every case, the fractures were “metaphyseal,” or near the ends of the bones. William Alison Cumming, a professor of medicine at the University of Florida with approximately 30 years of experience in pediatric radiology, testified that S.W.’s fractures were, in his opinion, “due to the child being rapidly and forcibly shaken probably while held by the trunk with the limbs free to flail about.”

Dr. Cumming also testified that the fractures were probably inflicted without bruising. He testified further that, for a long time after these injuries were inflicted, S.W. may have exhibited no signs of the fractures or of any kind of physical distress as a result of the fractures. In Dr. Cumming’s opinion, the fractures might have been the result of a single shaking episode of very brief duration.

N.L. testified that, as the child’s primary caretaker, she spent as much time with the child as she could. Conceding that there were times when she was not with the child, such as when she went to the bathroom, took a shower, or went to the store, she testified that she believed the longest period that the child had not been in her care lasted no more than a half hour. When not in her care, the child was in the boyfriend’s care. She testified that she never saw any indication when she returned from the store, bathroom, or shower, that the child had been injured.

A clinical coordinator with the Child Protection Team, who performed a psychosocial assessment of N.L. testified that she recommended N.L. receive a further psychological evaluation. She stated she could not testify as to whether N.L. posed any danger to the child and stated that a psychological evaluation was “imperative before any decision was made.” The record does not indicate whether DCFS ever offered or sought a psychological evaluation. Although a case plan appears in the record, it is unsigned and the record is devoid of evidence that a case plan was offered to N.L. There is no record evidence that N.L. posed a risk to the child for “psychosocial” reasons that could not be ameliorated with the provision of services.

The trial court entered the order under review, terminating parental rights under both section 39.806(l)(c) and (l)(f), Florida Statutes (2000), and concluding that N.L. “has engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatened the life, safety, or physical, mental, or emotional health” of the child and that N.L. had “engaged in a course of conduct toward the child that demonstrates that her continuing involvement in the parent-child relationship threatens the well being of the child.”

Standard of Review

We are obliged to affirm the termination of parental rights if DCFS has met its burden to present clear and convincing evidence of a statutory ground for terminating parental rights, along with clear and convincing evidence that terminating parental rights is in the best interests of the child. See § 39.809(1), Fla. Stat. (2000). Clear and convincing evidence is defined as “an ‘intermediate level of proof [that] entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.’ ” In re Adoption of Baby E.A.W., 658 So.2d 961, 967 (Fla.1995), cert. denied, 516 U.S. 1051, 116 S.Ct. 719, 133 L.Ed.2d 672 (1996) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)).

Our standard of review is highly deferential. A finding that evidence is clear and convincing enjoys a presumption of correctness and will not be overturned on appeal unless clearly erroneous or lacking in evidentiary support. See T.C.B. v. Fla. Dep’t of Children & Families, 816 So.2d 194, 197-98 (Fla. 1st DCA 2002); C.W. v. Dep’t of Children & Families, 814 So.2d 488, 492 (Fla. 1st DCA), rev. denied, 823 So.2d 122 (Fla.2002). Sitting en banc in In Interest of D.J.S., 563 So.2d 655, 662 (Fla. 1st DCA 1990), this court affirmed the trial court’s termination of parental rights, concluding “that the trial court’s determination that the evidence is clear and convincing ... cannot be held to be unreasonable as a matter of law.” The D.J.S. court explained the standard of review in termination cases, as follows:

We hold that a trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.
Our review of the record is not a de novo review or redetermination of the facts and issues. Even were we so inclined, we find no authorization for that procedure. Our review is addressed to the issues made on appeal and to the evidentiary support for, and correctness under the law of, the trial court’s order on those issues.

Id.; see also McKesson Drug Co. v. Williams, 706 So.2d 352, 353 (Fla. 1st DCA 1998)(“In civil cases involving the burden of clear and convincing evidence, an appellate court may not overturn a trial court’s finding regarding the sufficiency of the evidence unless the finding is unsupported by record evidence, or as a matter of law, no one could reasonably find such evidence to be clear and convincing. Accordingly, the appellate court’s function is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard, but to determine whether the record contains competent substantial evidence to meet the clear and convincing evidence standard.” (citations omitted)). Further, as the Florida Supreme Court observed in E.A.W., in reviewing findings of the trial court made under a “clear and convincing” evidentiary standard,

[O]ur task on review is not to conduct a de novo proceeding, reweigh the testimony and evidence given at the trial court, or substitute our judgment for that of the trier of fact. Instead, we will uphold the trial court’s finding “if, upon the pleadings and evidence before the trial court, there is any theory or principle of law which would support the trial court’s judgment in favor of terminating ... parental rights.”

658 So.2d at 967 (quoting Kingsley v. Kingsley, 623 So.2d 780, 787 (Fla. 5th DCA 1993), review denied, 634 So.2d 625 (Fla.1994)).

Thus, our review involves a two-step analysis. Where the trial court’s findings that the evidence is clear and convincing are supported by competent substantial evidence, and the appellate court cannot say that no one could reasonably find such evidence to be clear and convincing, the finding will not be set aside on appellate review. D.J.S., 563 So.2d at 662; E.A.W., 658 So.2d at 967; see also In re A.R.S., 617 So.2d 1148, 1149 (Fla. 2d DCA 1993)(“Competent, substantial evidence supports the trial court’s findings and decision that the evidence clearly showed neglect and abandonment....”).

Subsection 39.806(1)0

To establish a prima facie case under section 39.806(l)(f), DCFS was required to prove egregious conduct on N.L.’s part or her knowing failure to prevent such conduct by another when an opportunity existed to do so. As grounds for termination of parental rights, section 39.806(l)(f) specifies situations where

the parent or parents engaged in egregious conduct or had the opportunity and capability to prevent and knowingly failed to prevent egregious conduct that threatens the life, safety, or physical, mental, or emotional health of the child....
2. As used in this subsection, the term “egregious conduct” means abuse, abandonment, neglect, or any other conduct of the parent or parents that is deplorable, flagrant, or outrageous by a normal standard of conduct. Egregious conduct may include an act or omission that occurred only once but was of such intensity, magnitude, or severity as to endanger the life of the child.

§ 39.806(1)(f), Fla. Stat. (2000); see In re T.M., 641 So.2d 410, 410-12 (Fla.1994). In proving S.W.’s injuries and so the abuse to which she was subjected, DCFS proved “egregious conduct” here.

Shaking an infant violently can cause serious injury or death. See Washington v. State, 737 So.2d 1208, 1214 (Fla. 1st DCA 1999); Dixon v. State, 691 So.2d 515, 516 (Fla. 1st DCA 1997); Moore v. State, 790 So.2d 489, 492 (Fla. 5th DCA 2001); State v. Coffman, 746 So.2d 471, 472 (Fla. 2d DCA), rev. denied, 728 So.2d 201 (Fla.1998); Freeze v. State, 553 So.2d 750, 752 & n. 1 (Fla. 2d DCA 1989) (citing John Caffey, Whiplash Shaken Infant Syndrome: Manual Shaking by Extremities with Whiplash Induced Intracranial and Intraocular Bleedings, Linked with Residual Permanent Brain Damage and Mental Retardation, 54 Pediatrics 396 (1974)). Although Dr. Cumming did not testify explicitly that the abuse S.W. received endangered her life, the record contains competent and substantial evidence to support the trial court’s finding of clear and convincing evidence that S.W. was harmed by “egregious conduct” understandably inferred from the fact that S.W. was shaken forcefully enough to break her bones.

But DCFS did not introduce competent and substantial evidence either that N.L. shook S.W. or that she knowingly failed to avert a shaking she had the opportunity and capability to prevent. The record reflects that N.L.’s boyfriend has pleaded guilty to aggravated child abuse for violently shaking S.W. Nothing in this record, however could support a finding that N.L. was aware that the boyfriend intended or was inclined to abuse S.W., or, before the visit to the emergency room, that he had done so.

The record contains no evidence that N.L. was physically present when S.W. was abused. See In re B.J., 737 So.2d 1227, 1228 (Fla. 2d DCA 1999) (“[Wjhere there is evidence that a child suffered abuse by one or both of the parents present, there is clear and convincing evidence of egregious abuse to support termination of parental rights of both parents.”), rev. denied, 753 So.2d 564 (Fla.2000). N.L. repeatedly denied being present during any abuse, and DCFS offered no evidence to the contrary. No evidence in the record shows long-term abuse or a pattern of abuse of S.W. which might form a basis for a finding that N.L. “knowingly failed to prevent” the abuse of S.W. by the boyfriend. See M.C. v. Dep’t of Children & Family Servs., 814 So.2d 449, 451-52 (Fla. 4th DCA 2001); Dep’t of Children & Families v. Court of Appeal, Third District, 788 So.2d 988, 989-90 (Fla. 3d DCA 1998); In re B.S., 697 So.2d 914, 917 (Fla. 2d DCA 1997), rev. denied, 707 So.2d 1123 (Fla.1998); In re D.E.N., 504 So.2d 514, 516 (Fla. 5th DCA), rev. denied, 513 So.2d 1062 (Fla.1987); see also Leet v. State, 595 So.2d 959, 963 (Fla. 2d DCA 1991) (upholding convictions for child abuse and third-degree murder on a culpable negligence theory where the defendant had failed to recognize a pattern of abuse). No evidence shows that even two incidents of abuse took place, much less that multiple incidents of abuse occurred over a substantial period of time. See In re B.S., 697 So.2d at 917; In re D.E.N., 504 So.2d at 516.

Nevertheless, DCFS argues that N.L. knew or should have known that her boyfriend was sufficiently violent or otherwise had a propensity for child abuse such that N.L. “knowingly failed to prevent egregious conduct” by the boyfriend that caused injury to S.W. There is no evidence in the record, however, that the boyfriend was physically abusive or violent in the past with children or with anyone else. Further, the limited circumstantial evidence introduced for the purpose of showing the boyfriend’s alleged violent nature or propensity is insufficient, by itself, to establish a prima facie case that N.L. knowingly failed to prevent her boyfriend’s abuse of S.W. See A.R. v. Dep’t of Children & Families, 784 So.2d 622, 623 (Fla. 5th DCA 2001) (reversing dependency adjudications as to the siblings where a child died from “shaken baby syndrome” in the absence of evidence that the mother “knew or should have known that [the father] constituted a danger to [the] baby”); In re B.S., 697 So.2d at 917. At most, DCFS showed at hearing that the boyfriend exclaimed “quiet down” to S.W. loudly on one or two occasions; that he had threatened N.L. on one occasion in some unspecified way; that N.L. was aware that he had threatened his pregnant sister with a knife on one occasion; and that N.L. believed the boyfriend and the child did not “click.” This circumstantial evidence falls short of showing that N.L. was on notice of any significant risk that her boyfriend would abuse S.W.

According to Dr. Cumming, the child might have been violently shaken on a single occasion for a matter of seconds. This might have taken place while N.L. was in the shower, in the bathroom, or on a short trip to the store. The evidence is fully consonant with the view that the boyfriend who pled guilty to aggravated child abuse perpetrated the abuse outside N.L.’s presence, without her knowledge. In sum, the record does not contain competent substantial evidence that would establish that N.L. harmed S.W.; that she knowingly failed to prevent the boyfriend’s misconduct; or that she had any reason to suspect an injury, before S.W.’s arm became red and swollen, at which point she promptly sought medical care for the child.

Subsection 39.806(l)(c)

In order to establish a case under its alternative theory, DCFS was required to adduce clear and convincing evidence that N.L.’s continuing involvement in S.W.’s life threatens her life, safety, health, or well-being and that this threat exists “irrespective of the provision of services.” § 39.806(l)(c), Fla. Stat. (2000). Here, the trial court did not address whether, and the record is devoid of evidence that, services had been offered or provided to N.L. or that it would have been futile to have provided her such services. Thus, the requirements of subsection (l)(c) have not been met. See In re J.D.C., 819 So.2d 264, 267 (Fla. 2d DCA 2002).

Section 39.806(l)(c) authorizes termination of parental rights when, despite the provision of all available social welfare services,

the parent or parents engaged in conduct toward the child or toward other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child....
Provision of services may be evidenced by proof that services were provided through a previous plan or offered as a case plan from a child welfare agency.

§ 39.806(1)(c), Fla. Stat. (2000). As the Second District has explained in In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001)

[I]n order to terminate parental rights under section 39.806(l)(c), the trial court must find that the child’s life, safety, or health would be threatened by continued interaction with the parent regardless of any services provided to the parent. In essence, the trial court must find that any provision of services would be futile or that the child would be threatened with harm despite any services provided to the parent.

Here, DCFS proved that N.L. was impoverished, but not that she was an unfit parent, regardless of the lack of resources. See C.C. v. Dep’t of Children & Family Servs., 812 So.2d 520, 522-23 (Fla. 1st DCA 2002). Further, DCFS failed to show that termination of N.L.’s parental rights was the least restrictive way to protect S.W. See Padgett v. Dep’t of Health & Rehabilitative Servs., 577 So.2d 565, 571 (Fla.1991).

The record is devoid of evidence that N.L. was offered a case plan with a goal of reunification. Compare C.L. v. Dep’t of Children & Family Servs., 716 So.2d 825, 825 (Fla. 4th DCA 1998) (indicating that, on facts similar to those here, DCFS offered the mother a case plan before seeking to terminate parental rights). Other than some unrelated therapy in 1998, several years before her child was born, N.L. was not provided services either by DCFS or any other social service entity. See In re T.R.F., 741 So.2d 1184, 1185 (Fla. 2d DCA 1999). There is no record evidence that N.L. would be unable to remedy her putative deficiencies, if provided with appropriate services.

Further, there is no evidence that N.L. refused to accept services. See S.D. v. Dep’t of Children & Family Servs., 805 So.2d 10, 13-14 (Fla. 3d DCA 2001); In re K.C.C., 750 So.2d 38, 41 (Fla. 2d DCA 1999). Although the trial court could find on this record that N.L.’s conduct and parenting skills needed much improvement, she was not provided an opportunity to cure any deficiencies before DCFS sought to terminate her parental rights. See In re D.W., 793 So.2d 39, 40 (Fla. 2d DCA 2001). While she did not request services, DCFS never offered them.

Conclusion

Because the record does not contain the competent substantial evidence necessary to support termination of N.L.’s parental rights under either section 39.806(l)(c) or 39.806(l)(f), the trial court’s order must be reversed. The child remains dependent, however, and we remand to the trial court for further proceedings. Our reversal is based on the state of the record before us. On remand, therefore, DCFS must “consider whether, in light of ... the facts as they exist after remand,” J.D.C., 819 So.2d at 267, to offer N.L. a case plan with a goal of reunification. If circumstances exist after remand that satisfy the statutory requirements for termination without such a plan, DCFS may proceed accordingly. If DCFS offers N.L. an appropriate case plan and N.L. fails to comply with the plan, DCFS may again petition to terminate her parental rights.

REVERSED and REMANDED.

BOOTH, BENTON and VAN NORTWICK, JJ., CONCUR.

      . The term "competent substantial evidence” has been defined in DeGroot v. Sheffield, 95 So.2d 912, 916 (Fla.1957), as follows:
      We have used the term "competent substantial evidence” advisedly. Substantial evidence has been described as such evidence as will establish a substantial basis of fact from which the fact at issue can be reasonably inferred. We have stated it to be such relevant evidence as a reasonable mind would accept as adequate to support a conclusion. In employing the adjective “competent” to modify the word "substantial,” ... the evidence relied upon to sustain the ultimate finding should be sufficiently relevant and material that a reasonable mind would accept it as adequate to support the conclusion reached. To this extent the "substantial” evidence should also be "competent.”
      (Citations omitted). In short, "[cjompetent substantial evidence is tantamount to legally sufficient evidence.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000).


author: WEBSTER, J.

text:
    Abraham HENDRIX, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1192.
    District Court of Appeal of Florida, First District.
    May 1, 2003.

      Nancy A. Daniels, Public Defender; Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant, convicted following a jury trial of possession of cocaine and tampering with evidence, seeks review of an order denying his motions to suppress a plastic bag containing cocaine, which appellant had swallowed and subsequently vomited during the course of medical treatment performed in response to ingestion of the bag. Because we conclude that there is competent, substantial evidence to support the trial court’s finding that the warrant-less retrieval was justified by exigent circumstances, and that the medical procedure performed was reasonable, we affirm.

I.

The evidence presented at the suppression hearings established the following. Two officers saw appellant sitting in a car in the parking lot of an abandoned convenience store, which was “a bad drug and prostitution area.” One of the officers observed a white male leaning into the car’s window, and suspected a drug transaction. Although the car’s engine was running and its lights were on, it had no tag light. The officer approached appellant, and asked to see some identification, which appellant provided. Because the car was running and appellant seemed unusually nervous, the officer asked appellant to step out of the car, for his safety. The officer also asked for permission to search appellant and his car, which was denied. Appellant “started looking around as if he wanted to run.” Therefore, the officer patted appellant down, and placed him in the rear of his patrol car. Although the officer did not feel any weapon, he did feel a plastic bag, which he thought might contain drugs. While the officer was calling for a K-9 unit and checking appellant’s identification, he saw appellant pull from a pocket a clear plastic bag approximately seven inches square (which was described as more the size of a freezer bag than a sandwich bag) containing a white substance that appeared to be cocaine. Appellant put the bag in his mouth and began to chew. He then swallowed the bag. A struggle ensued when the officer tried to stop appellant. The officer arrested appellant for tampering with evidence and battery on a law enforcement officer. Then, because the officer had “seen people die” from swallowing cocaine, the officer and his partner rushed appellant to the hospital.

At the hospital, appellant refused treatment. The officer consulted with a doctor, who told him that a person could die from ingesting cocaine. Believing that appellant would be in danger of dying if not treated, the officer signed a Baker Act form stating that he believed appellant was mentally ill because he was refusing treatment notwithstanding a substantial likelihood that he would suffer serious harm if not treated. Appellant was then treated. The officer acknowledged having told medical personnel that, if possible, he would like them to retrieve the bag.

One of the doctors who treated appellant in the emergency room testified that appellant denied ingesting any substance, but that he did not believe appellant. He said that appellant could have died from ingesting cocaine. He also said that swallowing a freezer bag could be life-threatening because it could cause a bowel obstruction. Because of these concerns, the doctor said he would have treated appellant even if the officer had not signed the Baker Act form.

That doctor and another, who had also treated appellant, testified that they followed the treatment protocol for toxic in-gestions. A nasal-gastric tube was placed through appellant’s nose and down into his stomach. Appellant was then given charcoal to neutralize the contents of his stomach, and a substance called “Golytely” to cause rapid evacuation of his bowels. Appellant was also given Reglan intravenously to try to prevent vomiting. The process normally takes two to six hours to complete. However, notwithstanding the Re-glan, appellant vomited the plastic bag containing cocaine. According to the doctors, the procedure performed was absolutely necessary, given the way appellant presented at the emergency room.

One doctor testified that the procedure performed was a very common one, which was minimally intrusive. He said that the procedure is “as uncomfortable as having diarrhea.” The other doctor testified that the procedure would not generally be painful. There would merely be some “abdominal discomfort.”

The trial court denied the motions to suppress, finding that the warrantless retrieval of the bag was justified by exigent circumstances in the form of a life-threatening emergency and the imminent destruction of evidence, and that the medical procedure performed was reasonable. At trial, appellant was found not guilty of battery on a law enforcement officer, but guilty of possession of cocaine and tampering with evidence. This appeal follows.

II.

Appellant does not challenge either his initial stop, or his subsequent arrest. His sole argument on appeal is that the trial court’s denial of his motions to suppress the bag was erroneous because its noncon-sensual removal from his stomach violated the Fourth Amendment to the United States Constitution and article I, sections 12 and 23, of the Florida Constitution.

A.

Article I, section 23, of the Florida Constitution mandates that, “except as otherwise provided” by that document, “[ejvery natural person has the right to be let alone and free from governmental intrusion into the person’s private life.” Our supreme court has held that this “right of privacy is a fundamental right” which “is much broader in scope than that of the Federal Constitution.” Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 547, 548 (Fla.1985). It has also held that, pursuant to article I, section 23, “a compe tent person has the constitutional right to choose or refuse medical treatment.” In re Guardianship of Browning, 568 So.2d 4, 11 (Fla.1990). Appellant argues that, because the bag was obtained as the result of the state’s failure to honor his refusal of medical treatment, the bag should have been suppressed. We disagree.

We conclude that article I, section 23, has no bearing on the issue raised by appellant. Rather, the question is whether, notwithstanding appellant’s refusal to consent to treatment, the recovery of the bag was the result of an “unreasonable search,” as that term is used in article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution. Article I, section 12, of the Florida Constitution mandates that the protection against unreasonable searches afforded by that provision “be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” “Article I, section 23, does not modify the applicability of [a]rti-cle I, section 12, so as to provide more protection than that provided under the Fourth Amendment.” L.S. v. State, 805 So.2d 1004, 1008 (Fla. 1st DCA 2001) (citing State v. Hume, 512 So.2d 185, 188 (Fla.1987), and State v. Jimeno, 588 So.2d 233 (Fla.1991)).

B.

Appellant contends that his motions to suppress should have been granted because no warrant was obtained before the medically intrusive body search was conducted. Again we disagree.

Both article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution proscribe “unreasonable searches.” “A warrantless search is presumptively unreasonable .... But, when probable cause exists, if ‘exigent circumstances’ make it impossible or impracticable to obtain a warrant, [a] warrantless [search] will be excused.... The risk of removal or destruction of narcotics is a ‘particularly compelling’ exigent circumstance.” United States v. McGregor, 31 F.3d 1067, 1068-69 (11th Cir.1994) (citations omitted). Thus, in Schmerber v. California, 384 U.S. 757, 770-71, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the Court concluded that a police officer was justified in directing a physician in a hospital to perform a blood test on an individual suspected of driving while under the influence of alcohol without first obtaining a search warrant. The Court reasoned that “[t]he officer ... might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Id. at 770, 86 S.Ct. 1826 (citation omitted). Another exigent circumstance recognized as justifying a search without first obtaining a warrant is the existence of a life-threatening emergency. See, e.g., United States v. Borchardt, 809 F.2d 1115 (5th Cir.1987) (a nurse’s administration of an anti-narcotic drug which caused the defendant to vomit several packets of heroin was not an unreasonable search, given the existence of a life-threatening emergency); United States v. Mayes, 670 F.2d 126, 128 (9th Cir.1982) (“[t]he Fourth Amendment does not bar governmental officials from making warrantless searches and seizures ... where they reasonably believe that a search is required to deal with a life-threatening emergency”); State v. Hutchins, 636 So.2d 552, 553 (Fla. 2d DCA 1994) (a warrantless search of the defendant’s pocket by police and seizure of illegal drugs therein was reasonably necessary to assist the defendant in a potentially life-threatening situation where the defendant was disoriented and indicated he had been drinking and had taken “four or five pills”); Gilbert v. State, 289 So.2d 475 (Fla. 1st DCA 1974) (a warrantless search of defendant’s jacket, which resulted in the discovery of illegal drugs, was justified by exigent circumstances where the defendant was disoriented and threatened to kill herself and police were reasonably concerned the defendant might try to harm herself with weapons concealed in her jacket).

The trial court found that the police officers’ failure to obtain a warrant was justified by the risk of the imminent destruction of evidence and the potentially life-threatening situation in which appellant placed himself when he swallowed the bag. Appellant argues that the evidence does not support the existence of either exigent circumstance. After a careful review of the record, we conclude that it does. “A trial court’s ruling on a motion to suppress comes to the appellate court clothed with a presumption of correctness and the court must interpret the evidence and reasonable inferences and deductions derived therefrom in a manner most favorable to sustaining the trial court’s ruling.” Terry v. State, 668 So.2d 954, 958 (Fla.1996). Applying this standard to the evidence presented at the suppression hearings, we are satisfied that the trial court’s findings are amply supported by that evidence. In doing so, we note that appellant does not challenge the existence of probable cause for the search.

■ ' C.

Appellant further contends that, even if the officers were justified in acting without a warrant, the medical procedure employed was “unreasonable” for Fourth Amendment purposes. We are, again, unable to agree.

Citing Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), in Winston v. Lee, 470 U.S. 753, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985), the Court explained “that the ordinary requirements of the Fourth Amendment,” i.e., probable cause and, absent exigent circumstances, a warrant, are “the threshold requirements” when a search entails an “intrusion[] into the human body,” id. at 760, 105 S.Ct. 1611, because “[a] compelled ... intrusion into an individual’s body for evidence ... implicates expectations of privacy and security of such magnitude that the intrusion may be ‘unreasonable’ even if likely to produce evidence of a crime.” Id. at 759, 105 S.Ct. 1611. In such cases, the Court held that a balancing test must be applied to determine whether, even when “the threshold requirements” are met, the search remains “unreasonable” for Fourth Amendment purposes. On the one hand, a court reviewing the legality of such a search must consider “the extent to which the procedure may threaten the safety or health of the individual” and “the extent of intrusion upon the individual’s dignitary interests in personal privacy and bodily integrity.” Id. at 761, 105 S.Ct. 1611. Against this, the court must consider “the community’s interest in fairly and accurately determining guilt or innocence.” Id. at 762, 105 S.Ct. 1611. Applying this test, the Court reaffirmed the reasonableness of the test for blood alcohol upheld in Schmerber. However, it concluded that the surgical removal, under general anesthesia, of a bullet from a robbery suspect’s chest would be “unreasonable” for Fourth Amendment purposes. The Court based its conclusion on the following considerations: (1) while the magnitude of the threat to the health and safety of the suspect was disputed, there was substantial evidence that the surgery would clearly involve some risk; (2) the use of general anesthesia would constitute “an ‘extensive’ intrusion on [the suspect’s] personal privacy and bodily integrity,” id. at 764, 86 S.Ct. 1826; and (3) it was highly questionable whether the bullet would be of any value to the prosecution. It summarized its view as follows:

The operation sought will intrude substantially on respondent’s protected interests. The medical risks of the operation, although apparently not extremely severe, are a subject of considerable dispute; the very uncertainty militates against finding the operation to be “reasonable.” In addition, the intrusion on respondent’s privacy interests entailed by the operation can only be characterized as severe. On the other hand, although the bullet may turn out to be useful to the Commonwealth in prosecuting respondent, the Commonwealth has failed to demonstrate a compelling need for it. We believe that in these circumstances the Commonwealth has failed to demonstrate that it would be “reasonable” under the terms of the Fourth Amendment to search for evidence of this crime by means of the contemplated surgery.

Id. at 766, 86 S.Ct. 1826.

Here, the medical procedure performed on appellant was more intrusive than that in Schmerber, but less intrusive than that in Winston. Applying the Schmer-ber/Winston test, it is apparent from the evidence that the procedure entailed virtually no threat to appellant’s safety or health. The procedure was a common treatment protocol, performed in a hospital emergency room by physicians. It was minimally intrusive, and generally involved no more than some “abdominal discomfort.” While there was certainly some intrusion upon appellant’s “dignitary interests in personal privacy and bodily integrity,” the extent of the intrusion does not approach that found to be “unreasonable” in Winston. On the other hand, there can be no dispute that appellant’s prosecution would have been most difficult, if not impossible, without the bag. Based on this balancing of interests, we conclude that the procedure performed was not “unreasonable,” as that term is used in article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution. We note that, while this case appears to be one of first impression in Florida, decisions of courts in other jurisdictions which have considered this issue support the conclusion we reach. See State v. Strong, 493 N.W.2d 834 (Iowa 1992); Lewis v. State, 56 S.W.3d 617 (Tex.Ct.App.2001); Oviedo v. State, 767 S.W.2d 214 (Tex.Ct.App.1989).

Appellant contends that Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952), compels a conclusion that the medical procedure performed was “unreasonable” for Fourth Amendment purposes. While Rochin involved a medical procedure not unlike that performed on appellant, Rochin is distinguishable in a number of respects. Rochin was decided before the Fourth Amendment was held by the Court to apply to the states. Therefore, it was decided based upon a Fourteenth Amendment substantive due process analysis, which required the Court to consider “ ‘the whole course of the proceedings ... to ascertain whether they offend[ed] those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward' those charged with the most heinous offenses.’ ” Id. at 169, 72 S.Ct. 205 (quoting from Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (1945)). In addition to inducing vomiting by the use of an emetic which was forced through a tube into the defendant’s stomach, the Court noted that the police had entered the defendant’s home without a warrant (and apparently without probable cause), forced open the door to the defendant’s bedroom, and attempted physically to force the defendant to open his mouth so that they might retrieve the pills he had put there. Id. at 166, 72 S.Ct. at 206. In addition, Rochin was decided well before Schmerber and Winston, in which the Court developed its test for determining whether a bodily intrusion is “unreasonable” for Fourth Amendment purposes. Accordingly, Rochin must be read in light of those two decisions.

III.

The Schmerber/Winston balancing test is fact-driven. Accordingly, we emphasize that the result we reach here is, of necessity, based on the facts presented to the trial court, and the trial court’s findings based on those facts. Slightly different facts might well yield a different result.

In summary, we hold that the trial court’s finding that the warrantless retrieval of the bag was justified by exigent circumstances is supported by competent, substantial evidence, and that the medical procedure performed was not “unreasonable,” as that term is used in article I, section 12, of the Florida Constitution and the Fourth Amendment to the United States Constitution. Therefore, we affirm.

AFFIRMED.

PADOVANO and HAWKES, JJ., CONCUR.


text:
    Garlin A. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1191.
    District Court of Appeal of Florida, First District.
    May 1, 2003.
    Nancy A. Daniels, Public Defender; M. J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Philip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of his conviction, following a jury trial, for sale or delivery of cocaine. Because the trial court erroneously denied his motion for a mistrial made in response to comments by the prosecutor during closing argument improperly suggesting that appellant had the burden to present evidence refuting the state’s identification testimony, we reverse and remand for a new trial.

The only person who offered testimony establishing that appellant was guilty of sale or delivery of cocaine was the undercover officer who claimed to have purchased cocaine from appellant. Appellant presented no evidence. During closing argument, the prosecutor said:

A reasonable doubt can come from the evidence, a conflict in the evidence and a lack of evidence. From that [sic] testimony from that witness stand there is no reasonable doubt that was put forward to you today from that witness stand that he didn’t commit the crime. Nobody testified he wasn’t the guy.

(Emphasis added.) Counsel for appellant immediately moved for a mistrial, arguing that the state had commented on appellant’s failure to testify and had shifted the burden of proof. The trial court denied the motion. This was error.

In light of the evidence presented, the statement, “Nobody testified he wasn’t the guy,” can only be taken as intended to suggest, impermissibly, that appellant had some burden to present evidence refuting the state’s identification testimony. See, e.g., Jackson v. State, 575 So.2d 181, 188 (Fla.1991) (noting that “the state cannot comment on a defendant’s failure to produce evidence ... because doing so could erroneously lead the jury to believe that the defendant carried the burden of introducing evidence”); Jackson v. State, 832 So.2d 773, 777-78 (Fla. 4th DCA 2002) (concluding that the prosecutor’s question during closing argument implying that no evidence had been presented to counter an officer’s identification testimony impermis-sibly shifted the burden of proof); Shelton v. State, 654 So.2d 1295, 1296-97 (Fla. 4th DCA 1995) (concluding that the prosecutor’s question during closing argument asking whether there was “anything showing that [the defendant] didn’t make that sale” impermissibly shifted the burden of proof). It is equally clear that the statement constituted an impermissible comment on appellant’s failure to testify. See, e.g., Rodriguez v. State, 753 So.2d 29, 37 (Fla.2000) (concluding that a prosecutor’s comment that “there was nothing in the direct or cross examination of any witness who testified that pointed to any other person being involved other than ... this defendant” constituted an impermissible comment on the defendant’s failure to testify); State v. Marshall, 476 So.2d 150, 153 (Fla.1985) (noting that “[a]ny comment on, or which is fairly susceptible of being interpreted as referring to, a defendant’s failure to testify is error and is strongly discouraged”); Shelton, 654 So.2d at 1297. Having carefully reviewed the evidence presented at trial, we are unable to accept the state’s argument that the error was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986).

Appellant also complains that the trial court improperly prohibited cross-examination of two police officers regarding prior reprimands. We conclude that the trial court’s decision did not constitute an abuse of discretion.

Appellant’s conviction is reversed, and the case is remanded for a new trial.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED, with directions.

ALLEN, C.J., WEBSTER and BROWNING, JJ., CONCUR.