text:
    STATE of Florida, Appellant, v. J.M.T., a Child, Appellee.
    No. 5D03-3354.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellee.
   PER CURIAM.

The question presented is whether the trial judge erred in dismissing criminal charges against Appellee. Although we are sympathetic with the situation faced by the trial court, we cannot affirm the order on this record.

After the State had obtained two previous continuances, it appeared for trial unprepared to go forward. The State sought a third continuance because the evidence (suspected drugs) had not been transmitted to the laboratory for testing. The trial judge, having granted the State’s previous continuance motion for the same reason, was undoubtedly disturbed by the State’s inaction and denied the motion. Trial could not be started immediately, however, because Appellee had not been transported from detention. The court then invited a defense Motion to Dismiss and summarily granted same, apparently based on the State’s negligence in preparation of the case and other issues not clearly developed in the record. The court concluded that dismissal was justified due to the State’s “failure to prosecute.” This was error.

Although dismissal of criminal charges is an available sanction, it is only appropriate when the State has “show[n] a deliberate and contumacious disregard of the court’s authority.” State v. Fattorusso, 228 So.2d 630, 633 (Fla. 3d DCA 1969). Here, because the lower court misapprehended the applicable law in granting the defense motion and failed to offer the State an adequate opportunity to controvert the ore terms motion, reversal for a new hearing on the Motion to Dismiss is warranted.

Upon remand, the court must give the parties an opportunity to argue the motion, and the State must be given an opportunity to explain or rebut any factual allegations of misconduct. If the trial court determines that dismissal is justified under the appropriate standard, it should make findings of fact that support its conclusion so that meaningful review is available.

REVERSED and REMANDED.

PLEUS, MONACO and TORPY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM. GRIFFIN, J.,

license: Public Domain

text:
    Michael D. KNADLE, Petitioner, v. Roger B. KENNEDY, Sr., Respondent.
    No. 5D03-2852.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Michael C. Sasso and Brian D. Solomon, of Dempsey & Sasso, P.A., Orlando, for Petitioner.
    I. William Spivey, II of Greenberg Trau-rig, P.A., Orlando, and Elliot H. Scherker of Greenberg Traurig, P.A., Miami, for Respondent.
   PER CURIAM.

DENIED.

SHARP, W., and PLEUS, JJ., concur.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

In my view, there is more to judicial oversight of discovery than just protecting privileges or trade secrets. Issues of cost, burden, relevance and ulterior motives also require attention, especially when non-parties are involved. To do this accurately usually requires more time than trial judges have to devote to it. This ease appears to me to be an unhappy example.


text:
    MAGICAL CRUISE COMPANY, etc., Petitioner, v. Jennifer DRAGOVICH, etc., et al., Respondent.
    No. 5D04-159.
    District Court of Appeal of Florida, Fifth District.
    July 16, 2004.
    Ted L. Shinkle of Gray Robinson, P.A., Melbourne, for Petitioner.
    Daniel S. Rosenbaum and Laurie Stil-well Cohen of Becker & Poliakoff, P.A., West Palm Beach, for Respondent.
   PER CURIAM.

DENIED.

THOMPSON and PLEUS, JJ., concur.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

I concur in the decision to deny the petition for writ of certiorari because of the overall pattern of evasion of discovery manifest from the filings and from the transcript of the hearing before the trial court. I sympathize somewhat with Disney’s plaint that the other side’s discovery requests were out of control but, as the trial judge pointed out, the remedy for excessive or duplicative requests is to ask the court for relief.

I write in this case only because I have recently noticed the sudden emergence of “late filed” and “inadequate” privilege logs as the basis for (involuntary) “waiver” of attorney/client privilege or work product immunity. That was the principal basis for the trial court’s ruling in this case. I find this trend disturbingly reminiscent of the sort of “remedial” rabbit trails that Florida’s courts seem to so happily wander down. This one reminds me most of what has happened in “dismissal for want of prosecution” cases, where reading the applicable rule gives barely a clue of the mutations that have emerged from case law.

Has the professionalism in litigation deteriorated to the point that every rule violation needs a death penalty? I hope not, but if it does, then rather than have us judges squinting at Florida Rule of Civil Procedure 1.280(b)(5), trying to divine exactly when a privilege log has to be served, exactly what it must consist of, and what penalties are available if the rule is not complied with, the rule should be revised to make this clear. Somehow, based on precious little case law, there seems to be an emerging theory that if the privilege log is not served within the thirty days for production under rule 1.850, or if a log entry is deemed “inadequate,” the offending party loses the power to protect the item from discovery. The rule has no such deadline, however. It is not specific about what needs to be contained in the log, and no remedy or range of penalties is specified. In fact, by its terms, rule 1.280(b)(5) doesn’t even require a written objection, only an “express” objection, and it applies to “information,” not documents. It seems to apply to refusal to answer questions in a deposition or interrogatories in addition to the refusal to produce documents.

It would doubtless be good to have the log of what is not being produced at the time the response to a request for production is served. But that is not always practical, and it usually is not necessary. Certainly, the log must be provided within enough time to permit the requesting party to do whatever is needed to prepare a motion to compel. The amount of time available for production of a privilege log ought to vary depending on the number and type of documents being requested and the number and type of documents withheld. Location of the documents also figures into this. This has usually been handled successfully by agreement between counsel and, fading that, through court supervision. A requirement that the producing party not only identify the privileged documents but “adequate!/’ catalog them within thirty days can lead to errors, including inadvertent production. A requirement that a party who requires more than thirty days must make application to the court and secure a hearing is a waste of the clients’ money and the court’s time.

It is noteworthy that this court’s leading case on this issue, Nationwide Mutual Fire Insurance Co. v. Hess, 814 So.2d 1240 (Fla. 5th DCA 2002), was a case where no log was filed at all as of the date of the hearing and counsel’s request for a log had been ignored. Id. at 1241. How we got so quickly from there to automatic mandatory involuntary waiver is a marvel.

      . It does seem to be a matter of common sense that each withheld document should be identified by date, author, recipients and subject matter in order for the privilege or immunity to be evaluated. This process requires objecting counsel to consider carefully whether the document is privileged or immune and discourages unnecessary assertions of privilege or immunity.


author: PER CURIAM.

text:
    Brian C. GRAHAM, Appellant, v. D. BAYNARD, Thomas Crews, and James V. Crosby, Jr., Appellees.
    No. 1D03-5528.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Brian C. Graham, appellant, pro se.
    Charlie Crist, Attorney General, and Joy A. Stubbs, Assistant Attorney General, Tallahassee, for appellees.
   PER CURIAM.

The order dismissing appellant’s petition for writ of mandamus is reversed, and the matter is remanded for further proceedings. See Burgess v. Crosby, 870 So.2d 217 (Fla. 1st DCA 2004).

ERVIN, BENTON and LEWIS, JJ., concur.


text:
    BAY COMMUNITIES and William F. Harkins, Appellants, v. Anthony ANNATONE, Appellee.
    No. 1D04-1147.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Douglas Rawnsley of Boehm, Brown, Fischer, Harwood, Kelly & Scheihing, Daytona Beach, for appellants.
    No appearance for appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. The petition for writ of certiorari, which fails to set forth a basis for relief, is stricken as unauthorized.

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    AMBER ELECTRIC, INC., and CNA Claimplus, Inc., Appellants, v. Kevin PADGETT, Appellee.
    No. 1D04-1955.
    District Court of Appeal of Florida, First District.
    July 20, 2004.
    Lamar D. Oxford and Ferman M. Fernandez of Dean, Ringers, Morgan & Law-ton, Orlando, for appellants.
    No appearance for appellee.
   PER CURIAM.

This appeal is hereby dismissed for lack of jurisdiction. The request to file a petition for writ of certiorari is denied. Combs v. State, 436 So.2d 93 (Fla.1983).

BOOTH, BARFIELD and ALLEN, JJ., concur.


text:
    Kenny HURST, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-2104.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Kenny Hurst appeals the denial of his 3.170(7) motion to withdraw his nolo con-tendere pleas and the partial denial of a motion styled as a 3.800(c) “Motion to Reduce or Modify Sentence.” To the extent that Hurst seeks review of the denial of his motion to withdraw pleas, the appeal is dismissed as no written order was ever entered. See Pannier v. State, 849 So.2d 1105 (Fla. 4th DCA 2003); Marinelli v. State, 706 So.2d 1374 (Fla. 2d DCA 1998). As for the partial denial of the “Motion to Reduce or Modify Sentence,” we affirm. The denial of a rule 3.800(c) motion is not appealable, see Bateman v. State, 866 So.2d 211 (Fla. 4th DCA 2004), and, even if the motion is viewed as filed pursuant to 3.800(a), as argued by Hurst, it was properly denied as the alleged errors are not apparent from the face of the record, see Jackson v. State, 803 So.2d 842, 844 (Fla. 1st DCA 2001). Our affirmance is without prejudice to Hurst’s right to seek any available postconviction relief.

GUNTHER, STEVENSON and HAZOURI, JJ., concur.


text:
    Richard EVANS, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1892.
    District Court of Appeal of Florida, Fourth District.
    July 21, 2004.
    Richard Evans, Crestview, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Richard Evans seeks review of the summary denial of his motion for postconviction relief filed pursuant to rule 3.850. The trial court erroneously denied this motion as successive, because it had previously treated a motion to modify sentence as a rule 3.850 motion. This motion, however, is in fact Evan’s first rule 3.850 motion. Reversed.

GUNTHER, KLEIN and GROSS, JJ., concur.


text:
    Jeffrey BUCKNER and Debbie Buckner, Appellants, v. FAMILY SERVICES OF CENTRAL FLORIDA, INC., et al., Appellees.
    No. 5D03-3217.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    Jerri A. Blair of Lockett & Blair, P.A., Tavares, for Appellants.
    Ralph J. McMurphy, Wildwood, for Department of Children and Family Services, for Appellees.
   PER CURIAM.

Jeffrey and Debbie Buckner (“the Buck-ners”) appeal from a final order dismissing their petition against the State of Florida, Department of Children and Families (“DCF”).

The Buckners filed suit against DCF individually and as next friend of a minor child, S.H. The Buckners sought declaratory relief, visitation and adoption concerning S.H. According to the petition, the Buckners had previously served as foster parents for S.H. The thrust of the petition is that a strong parent/child relationship developed between them and S.H. and that DCF has refused to approve their adoption of S.H. and has precluded contact between them and S.H.

In dismissing the petition with prejudice for failure to state a cause of action, the trial court ruled that it had no authority: (1) over placement of the child except to review the appropriateness of the adoptive placement, or (2) to interfere with DCF’s selection of an adoptive family. The court added that the Buckners failed to allege facts showing that they have legal standing to pursue the action on behalf of S.H.

Our review is de novo. Palumbo v. Moore, 777 So.2d 1177 (Fla. 5th DCA 2001). We conclude that the trial court correctly dismissed the Buckners’ petition.

The Buckners’ reliance on Kingsley v. Kingsley, 623 So.2d 780 (Fla. 5th DCA 1993), for the proposition that an adult with knowledge of the facts is an appropriate person to file an action such as this as next friend of the minor, S.H., is misplaced. In Kingsley, this court explained the procedure applicable where an adult seeks to file a termination of parental rights petition on behalf of a child. The court stated that an un-emancipated minor does not have the legal capacity to initiate legal proceedings in his or her own name and continued:

This historic concept is incorporated into Florida Rule of Civil Procedure 1.210(b), which provides as follows:
Rule 1.210 Parties
(b) Infants or Incompetent Persons. When an infant or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person. See also Art. Ill, § ll(a)(17), Fla. Const.; §§ 743.01-07, Fla. Stat. (1991) (recognizing the disability of nonage of minors).
The necessity of a guardian ad litem or next friend, the alter ego of a guardian ad litem, to represent a minor is required by the orderly administration of justice and the procedural protection of a minor’s welfare and interest by the court and, in this regard, the fact that a minor is represented by counsel, in and of itself, is not sufficient. Brown v. Ripley, 119 So.2d 712 (Fla. 1st DCA 1960). See also Roberts v. Ohio Casualty Insurance Co., 256 F.2d 35, 39 (5th Cir.1958); Zaro v. Strauss, 167 F.2d 218 (5th Cir.1948). Unless a child has a guardian or other like fiduciary, a child must sue by his next friend; however, the next friend does not become a party to the suit. Brown v. Caldwell, 389 So.2d 287, 288 (Fla. 1st DCA 1980). Where the next friend brings the suit, the minor is the real party in interest. Youngblood v. Taylor, 89 So.2d 503, 506 (Fla.1956).

623 So.2d at 783-84.

This court noted that section 39.461(1), Florida Statutes (1991), provided that petitions for termination of parental rights may be initiated by an HRS attorney or “by any other person who has knowledge of the facts alleged or is informed of them and believes they are true.” This court construed the phrase “any other person who has knowledge,” to mean:

someone who is in a peculiar position so that such knowledge can be reasonably inferred; for example, the judge familiar with the file, the guardian or attorney for the children, neighbors or friends of the parties who, because of their proximity, would be expected to have such knowledge.

623 So.2d at 784.

The court continued:

This construction contemplates the situation which arose here — that Jerri Blair, an attorney, would file a termination petition on Gregory’s behalf. She must do so, however, as his next friend. The next friend may be an attorney, but need not be one. Under this long-recognized and well-tested procedure, the child is the real party in interest, but the courts require that an adult person of reasonable judgment and integrity conduct the litigation for the minor as the latter’s next friend.

Id. (footnote omitted).

Kingsley is inapplicable to the instant case. This case does not involve section 39.461(1) and thus does not implicate the statutory language contained therein. Further, this case, unlike the recent ease of I.B. v. Department of Children & Families, 876 So.2d 581 (Fla. 5th DCA 2004), does not involve an active adoption proceeding initiated by DCF and pending in the circuit court. In I.B., the child’s current foster parents asserted the existence of an agreement to adopt between themselves and DCF and were deemed to have the right to be heard in the pending adoption proceeding. In the instant case, the Buckners themselves are attempting to initiate adoption proceedings.

Acceptance of the Buckners’ position would mean that any former foster parent would have standing to sue DCF acting ostensibly on behalf of a dependent minor child who is or at one time had been in the foster parent’s custody. This effort by the Buckners to self-appoint themselves as next friends and initiate an action on behalf of a minor in DCF custody would usurp the DCF’s statutory authority and interfere with the jurisdiction and procedures of the dependency court. It is the dependency court which is charged under Florida law with protecting the rights and interests of dependent children, section 39.001, Fla. Stat. (2003), and it does so through various devices, including periodic judicial reviews and appointments of guardians ad litem and attorneys ad litem.

The Buckners, as former foster parents of S.H., have not alleged a recognizable basis for initiating litigation as next friend of S.H.

Additionally, the Buckners’ allegations, taken as true for purposes of the motion to dismiss, do not state a basis for declaratory relief or for adoption:

S.H. was placed by DCF with the Buck-ners for a one-year period; a strong parent/child relationship developed between S.H. and the Buckners; S.H. wants to be adopted by the Buckners; S.H. wishes to visit with the Buckners; DCF is not seeking to have S.H. adopted at this time and is not allowing any contact between S.H. and the Buck-ners.

The Buckners argue that the existence of a strong familial relationship warrants legal protection from the courts. They claim a fundamental liberty interest in the relationship is protected by Article 1 sections 9 (due process) and 23 (right to privacy) of the Florida Constitution and is implicitly recognized by United States Supreme Court decisions such as Santosky v. Kramer, 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (abuse, abandonment or neglect which warrants termination of parental rights must be provided by the State by clear and convincing evidence) and Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (First and Fourteenth Amendments prevent State from compelling Amish parents to cause their children, who have graduated from the eighth grade, to attend formal high school to age 16). The Buckners add that minors have constitutional rights and must have access to the courts to protect those rights.

Under Florida law, “adoption is not a right; it is a statutory privilege.” State, Dep’t of Health & Rehabilitative Services v. Cox, 627 So.2d 1210, 1215 (Fla. 2d DCA 1993), affirmed in relevant part, 656 So.2d 902 (Fla.1995). Unlike biological parentage, which proceeds and transcends formal recognition by the State, adoption is wholly a creature of the State. Lofton v. Sec’y of Dep’t of Children and Family Serv., 358 F.3d 804 (11th Cir.2004), citing Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977) (noting that, unlike the natural family, which has “its origins entirely apart from the power of the State,” the foster parent-child relationship “has its source in state law and contractual arrangements”) and Lindley v. Sullivan, 889 F.2d 124, 131 (7th Cir.1989) (“Because of its statutory basis, adoption differs from natural procreation in a most important and striking way”). See also Dep’t of Children & Family Serv. v. B.Y., 863 So.2d 418 (Fla. 4th DCA 2003) (trial court lacks authority to order DCF to approve an adoption in the absence of DCF’s consent because decision to grant consent to adoption is firmly reposed by statute in DCF), rev. granted, 870 So.2d 820 (Fla.2004). In Lofton, the Eleventh Circuit concluded section 63.042(3), Florida Statutes (2003), which prevents adoption by practicing homosexuals, is constitutional. In rejecting a due process and equal protection challenge to the statute, the court explained the nature of adoption:

In formulating its adoption policies and procedures, the State of Florida acts in the protective and provisional role of in loco parentis for those children who, because of various circumstances, have become wards of the state. Thus, adoption law is unlike criminal law, for example, where the paramount substantive concern is not intruding on individuals’ liberty interests, see, e.g., Lawrence [v. Texas,] 539 U.S. 558, 123 S.Ct. 2472, 156 L.Ed.2d 508 [(2003)]; Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973); and the paramount procedural imperative is ensuring due process and fairness, see, e.g., Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Adoption is also distinct from such contexts as government-benefit eligibility schemes or access to a public forum, where equality of treatment is the primary concern. See, e.g., Rosengerger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 115 S.Ct. 2510, 123 L.Ed.2d 700 (1995); Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). By contrast, in the adoption context, the state’s overriding interest is the best interests of the children whom it is seeking to place with adoptive families. In re Adoption of H.Y.T., 458 So.2d 1127, 1128 (Fla.1984) (noting that, in Florida adoption proceedings, “the court’s primary duty is to serve the best interests of the child — the object of the proceedings”). Florida, acting parens patriae for the children who have lost their natural parents, bears the high duty of determining what adoptive home environments will best serve all aspects of the child’s growth and development.

358 F.3d at 809-10.

The Lofton court, citing the Second District’s decision in Cox, stated that the decision to adopt a child is not a private one but a public act which does not partake of a constitutionally-recognized privacy interest.

The Lofton court continued that there is no fundamental right to adopt nor any fundamental right to be adopted. See also Mullins v. Oregon, 57 F.3d 789, 794 (9th Cir.1995) (“[W]hatever claim a prospective adoptive parent may have to a child, we are certain that it does not rise to the level of a fundamental liberty interest,”); Lindley, 889 F.2d at 131 (“[W]e are constrained to conclude that there is no fundamental right to adopt.”) The Lofton court added that there being no fundamental right to adopt or to be adopted, “it follows that there can be no fundamental right to apply for adoption.” Id.

While the United States Supreme Court has identified “the interest of parents in the care, custody, and control of their children” as “perhaps the oldest of the fundamental liberty interests recognized by this Court,” Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), such constitutionally-recognized liberty interest has not been extended beyond biological families. See Lofton (rejecting claim of homosexual foster parent who claimed fundamental right to family integrity); Drummond v. Fulton County Dep’t of Family & Children’s Serv., 563 F.2d 1200 (5th Cir.1977) (rejecting claim that foster parent relationship created familial right of privacy protected by Fourteenth Amendment); Cox, 627 So.2d at 1216 (“A person who asks the State for the privilege to adopt does not have a fundamental right arising from an existing family relationship.”)

As noted in Lofton, in Smith v. Org. of Foster Families for Equal. & Reform, 431 U.S. 816, 97 S.Ct. 2094, 53 L.Ed.2d 14 (1977), Justice Brennan acknowledged in dicta that “biological relationships are not [the] exclusive determination of the existence of a family” and noted that “[a]doption, for instance, is recognized as the legal equivalent of biological parenthood.” Id. at 844, n. 51, 97 S.Ct. 2094. However, the Eleventh Circuit noted that Smith involved whether foster families possessed a constitutional liberty interest in “the integrity of their family unit” such that the State could not disrupt the family unit without procedural due process. The Smith Court found it unnecessary to reach the constitutional issue but stressed that the parameters of whatever potential liberty interest such families might possess would be defined by state law and the justifiable expectations it created. Id. at 845-46, 97 S.Ct. 2094. Indeed, the Smith Court found the procedures provided under New York law were “adequate to protect whatever liberty interest appellees may have.” Id.

The Lofton court explained that under Florida law, neither a foster parent nor a legal guardian could have a justifiable expectation of a permanent relationship with his or her child free from State oversight or intervention. The court added that even if some expectation of permanency arose, the resulting liberty interest at most would provide procedural due process protection in the event the State were to attempt to remove the child. Smith. The Lofton court concluded:

[Appellants’ right-to-family-integrity argument fails to state a claim. There is no precedent for appellants’ novel proposition that long-term foster care arrangements and guardianships are entitled to constitutional protection akin to that accorded to natural and adoptive families. Moreover, we decline appellants’ invitation to recognize a new fundamental right to family integrity for groups of individuals who have formed deeply loving and interdependent relationships. Under appellants’ theory, any collection of individuals living together and enjoying strong emotional bonds could claim a right to legal recognition of their family unit, and every removal of a child from a long-term foster care placement — or simply the state’s failure to give long-term foster parents the opportunity to adopt — would give rise to a constitutional claim. Such an expansion of the venerable right of parental control would well exceed our judicial mandate as a lower federal court.

In sum, a relationship such as that alleged by the Buckners does not enjoy constitutional protection.

The Buckners’ request that the trial court enter an order authorizing their adoption of S.H. likewise fails to state a cause of action under Florida statutory law governing adoption. As explained in C.S. v. S.H., 671 So.2d 260, 268 (Fla. 4th DCA 1996):

Chapter 39 specifically controls the placement for adoption of children where parental rights have been previously terminated. While Chapter 63 authorizes the trial court to finalize the adoption, its provision are triggered only after HRS places and approves a child for adoption as provided in Chapter 39. Thus, we conclude, that the general grant of authority over all adoption proceedings does not supersede HRS’s specific authority to select the adoptive parents.

While current foster parents may, in an active adoption proceeding initiated by DCF, have the right to be heard, see I.B., former foster parents do not have the right automatically to be heard or to demand that DCF select them as the child’s adoptive parents.

The Buckners argue that DCF violated Chapter 39, Florida Statutes (2003). In particular, they point out that section 39.001(l)(h) provides that one of the purposes of Chapter 39 is:

To ensure that permanent placement with the biological or adoptive family is achieved as soon as possible for every child in foster care and that no child remains in foster care for longer than 1 year.

The Buckners point out that S.H. has been in foster care for longer than one year, contrary to the intent of the statute. The Buckners further point out that Chapter 39 provides the court with the authority to assure that progress is being made toward a permanent adoptive placement. See §§ 39.811, 39.812, Fla. Stat. (2003). Section 39.811(9) provides:

The court shall review the status of the child’s placement and the progress being made toward permanent adoptive placement. As part of this continuing jurisdiction, for good cause shown by the guardian ad litem for the child, the court may review the appropriateness of the adoptive placement of the child.

Similarly, section 39.812(4) provides for continued review after custody of a child for subsequent adoption has been given to DCF. The status of the child and the progress being made toward permanent adoptive placement are to be reviewed by the court. The statute also provides for a guardian ad litem’s input with regard to the appropriateness of adoptive placement of a child.

The Buckners’ contentions are more properly raised by S.H.’s legal representative in judicial review proceedings conducted in the juvenile court pursuant to section 39.811(8), Florida Statutes. This subsection requires the court to hold hearings at six month intervals to review the progress toward permanency “until the adoption of the child is finalized or the child reaches the age of 18 years.” The Buckners fail to point to any legislative intent that the above-referenced statutes create a private cause of action. See Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994).

AFFIRMED.

PLEUS, PALMER and ORFINGER, JJ., concur.

      . Adoption statutes, however, are not immune from constitutional scrutiny. See Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1979) (invalidating on equal protection grounds state law permitting unwed mother but not unwed father to block adoption of their child by withholding consent).

      . See section 39.813, Florida Statutes (2003), which provides:
      39.813 Continuing jurisdiction. — The court which terminates the parental rights of a child who is the subject of termination proceedings pursuant to this chapter shall retain exclusive jurisdiction in all matters pertaining to the child’s adoption pursuant to chapter 63.
      Section 63.037, Florida Statutes (2003), provides that adoptions where parental rights have been terminated are “governed by s. 39.812 and this chapter.”

      . Although we conclude that the Buckners' lack of standing is a procedural bar to this action, we acknowledge the need for S.H. to have an independent voice in the courtroom. We believe section 39.811(9), Florida Statutes (2003) contemplates that S.H. would have a guardian ad litem after the termination of parental rights. However, we recognize that in some instances, the guardian ad litem is either discharged after the termination proceedings conclude, or the lack of sufficient guardians ad litem prevent the court from receiving this valuable input. Nonetheless, S.H. deserves a voice in these proceedings, particularly when she, or her legal representative, may have views that differ from those of DCF.
      We believe, and DCF conceded at oral argument, that the Buckners have the right to ask the dependency court to recognize them as "participants," as defined by Florida Rule of Juvenile Procedure 8.210(b) for the limited purpose of seeking the appointment of an independent guardian ad litem for S.H. While adoption is a creature of statute, and prospective adoptive parents have no constitutional protections in general, S.H., as the subject of these proceedings, has the right to access the courts and the right of due process. Those rights are merely illusory if she has no one speaking on her behalf.
      DCF and the trial court are required to focus on the best interests of this child. Here, DCF is alleged to have taken the position that adoption is not in S.H.’s best interest at this time. While DCF may be right, an issue we cannot determine based on the record before us, it may also be wrong. S.H. deserves the opportunity to contest DCF’s judgment regarding her fate, if appropriate.


text:
    Tony KEARSE, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-1774.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.

      Tony E. Kearse, Lake Butler, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

In this post-conviction proceeding, Appellant, who received a 30-year sentence after he pled no contest to Sale of Cocaine, a second degree felony, challenges the summary denial of his Florida Rule of Criminal Procedure 3.850 motion. Appellant claims that his counsel, who had received notice that the State intended to seek felony habitual offender enhancement of his sentence, failed to explain that the effect of the enhancement was that Appellant could receive a sentence of double the statutory maximum. Because the order denying relief on this ground fails to attach portions of the record which refute this claim, we reverse and remand this cause with instructions that the lower court either attach portions of the record that refute his cláim or conduct an eviden-tiary hearing.

Appellant’s other points on appeal are either redundant, not cognizable under rule 3.850, or are otherwise lacking in merit.

REVERSED AND REMANDED.

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    L.O., father of J.O., A Child, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D04-351.
    District Court of Appeal of Florida, Fifth District.
    July 23, 2004.
    R. Wm. Lyng, III, of R. Wm. Lyng, P.A., Kissimmee, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PER CURIAM.

We determine that Appellant was denied procedural due process under circumstances indistinguishable from our recent decision in R.M. v. Department of Children & Families, 877 So.2d 797, 2004 WL 1486038 (Fla. 5th DCA July 2, 2004). Accordingly, as in R.M., we vacate the support order and remand for a properly-noticed hearing on the issue of the award of temporary child support. We note that, although unclear from the record before us, Appellant might be serving a prison sentence at the present time. Upon remand, therefore, the court, in addition to other factors, should consider the impact of Department of Revenue v. Jackson, 846 So.2d 486, 491 (Fla.2003).

ORDER VACATED and CAUSE REMANDED.

THOMPSON, ORFINGER and TORPY, JJ., concur.


text:
    FLORIDA MUNICIPAL INSURANCE TRUST, Appellant, v. VILLAGE OF GOLF, a municipal corporation, Appellee.
    No. 4D02-2567.
    District Court of Appeal of Florida, Fourth District.
    April 23, 2003.
    Order on Rehearing July 21, 2004.
    Michael T. Burke of Johnson, Anselmo, Murdoch, Burke & George, P.A., Fort Lauderdale, for appellant.
    Kenneth G. Spillias, Kevin S. Hennessy, and Eric Ash of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Appellant challenges an award of attorney’s fees based on a final judgment entered in favor of Village of Golf. This court having reversed the final judgment in Florida Municipal Insurance Trust v. Village of Golf, 850 So.2d 544 (Fla. 4th DCA 2003), the award of attorney’s fees is likewise reversed.

STONE, WARNER and FARMER, JJ., concur.

ON MOTION FOR REHEARING

PER CURIAM.

Appellant challenges an award of attorneys fees based on a final judgment entered in favor of Village of Golf. This court having reversed the final judgment in Florida Municipal Insurance Trust v. Village of Golf, 850 So.2d 544 (Fla. 4th DCA 2003), the award of attorneys fees is likewise reversed. The determination of attorneys fees should await the conclusion of proceedings required pursuant to our reversal in the underlying action.

FARMER, C.J., STONE and WARNER, JJ., concur.


author: COPE, J.

text:
    DIAGNOSTIC SERVICES OF SOUTH FLORIDA a/a/o Federico Pena, Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE CO., Appellee. State Farm Mutual Automobile Insurance Co., Appellant, v. Diagnostic Services of South Florida a/a/o Ondina Comesana, Appellee.
    Nos. 3D02-3122, 3D02-3129.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Rehearing and Rehearing Denied En Banc Denied July 14, 2004.

      Robert S. Glazier; Pastor, Andreu & Montes, for Diagnostic Services of South Florida.
    Frances F. Guasch and Luis E. Ordonez & Associates, for State Farm Mutual Automobile Insurance Co.
    Before COPE, GODERICH and GREEN, JJ.
   COPE, J.

In these two consolidated appeals, the Miami-Dade County Court has certified questions of great public importance. See Fla. R.App. P. 9.160. We conclude that Diagnostic Services of South Florida (“Diagnostic”) was not a “clinic” under section 456.0375, Florida Statutes (2001), and was not required to register under that statute.

I.

Diagnostic is a company which owns portable diagnostic testing equipment. At the request of a health care provider, Diagnostic takes its equipment to the health care provider’s office to perform diagnostic tests on the patient. Examples of such tests are comparative muscle testing, grip and pinch tests, and range of motion testing.

After completion of the testing, Diagnostic returns to its office and enters the test data into a computer program. Diagnostic prepares a report, which is reviewed by a chiropractor and then is provided to the ordering physician. Diagnostic has an office but performs no patient examinations there.

In the two cases now before us, the insureds were injured in automobile accidents. At the request of the respective treating physicians,. Diagnostic performed diagnostic tests. In the case of Ondina Comesana, the tests were ordered by Dr. Fernando Palma, and consisted of a series of comparative muscle tests and range of motion tests. In the case of Federico Pena, the tests were ordered by Dr. Joaquin Vega, and consisted of a series of handgrip and pinch tests as well as comparative muscle tests and range of motion tests.

Both insureds had coverage for personal injury protection (“PIP”) in their State Farm policies. In each case, the insured assigned to Diagnostic the right to reimbursement.

In each case, State Farm refused to pay the claim. State Farm took the position that Diagnostic was a “clinic” as defined in section 456.0375, Florida Statutes (2001). This statute came into existence October 1, 2001. See ch.2001-271, § 3, Laws of Fla.; 2001-277, § 103, Laws of Fla. The statute requires registration with the Department of Health of every clinic which meets the statutory definition. § 456.0375(2)(a), Fla. Stat. (2001).

The present litigation arose because the statute states: “All charges or reimbursement claims made by or on behalf of a clinic that is required to be registered under this section, but that is not so registered, are unlawful charges and therefore are noncompensable and unenforceable.” Id. § 456.0375(4)(a). Since Diagnostic rendered the services at a time when Diagnostic was not registered, State Farm refused to pay.

Diagnostic brought suit in Miami-Dade County Court. In Diagnostic Services of South Florida as assignee of Frederica Pena v. State Farm Mutual Automobile Ins. Co., this court’s number 3D02-3122, County Court Judge Shelley Kravitz granted summary judgment for State Farm, ruling that Diagnostic fell within the statutory definition of “clinic.” The county court certified the following questions of great public importance:

(1) Is a mobile diagnostic health care facility such as Diagnostic Services of South Florida required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and, [2] if “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered?

Diagnostic has appealed.

In State Farm Mutual Automobile Ins. Co. v. Diagnostic Services of South Florida as assignee of Ondina Comesana, this court’s number 3D02-3129, County Court Judge Caryn Schwartz ruled that Diagnostic was not a “clinic” for purposes of the statutory definition. The county court certified the following questions of great public importance:

(1) Is a mobile diagnostic health care facility which only conducts diagnostic testing, at clinics registered with the Florida Department of Health and at the request and direction of the on staff treating physicians of those facilities required to be registered with the Department of Health pursuant to Section 456.0375, Florida Statutes, and,
(2) If the answer to No. (1) above, is “yes,” is an automobile insurance carrier relieved of its obligation to pay for such services if such services were rendered when the mobile diagnostic facility was not so registered?

State Farm has appealed.

II.

The definition of “clinic” under the statute is:

(l)(a) As used in this section, the term “clinic” means a business operating in a single structure or facility, or in a group of adjacent structures or facilities operating under the same business name or management, at which health care services are provided to individuals and which tender charges for reimbursement for such services.

§ 456.0375(l)(a), Fla. Stat. (2001) (emphasis added).

So far as pertinent here, to be a “clinic” the business must operate in a single structure or single facility at which health care services are provided. Diagnostic does not satisfy this definition.

Diagnostic does not operate in a single structure or single facility. Diagnostic takes its portable equipment to various doctors’ offices. Since it performs medical testing in multiple doctors’ offices,' Diagnostic is working in multiple locations owned by others. Diagnostic is not testing patients in its own structure or facility.

State ■ Farm argues that Diagnostic is operating a “clinic” for purposes of this statute because the business owner, Ms. Carril, prepares the written diagnostic reports at her office. But that does not make her office a “clinic” under the statutory definition. The question is where the health care services — -the diagnostic tests — are performed on the patients. Those tests are performed at the doctors’ offices, not in Ms. Carril’s office.

There is another statutory alternative, but it is equally inapplicable here. Under the statute, a “clinic” can be a business “operating ... in a group of adjacent structures or facilities operating under the same business name or management, at which health care services are provided to individuals.... ” Diagnostic does not fall within that alternative definition. It does not operate in a group of adjacent structures or facilities operating under the same business name.- Instead, as stated, Diagnostic takes its equipment to various doctors’ offices.

State Farm points out that the Department of Health has interpreted the statute to require registration by entities such as Diagnostic. See ROM Diagnostics v. Allstate Indemnity Co., 10 Fla. L. Weekly Supp. 1001(b) (Fla. 9th Jud. Cir. Oct. 3, 2003). That makes no difference here, because the statutory language is clear on its face. “[A] court need not defer to an agency’s construction. if the language of the statute is clear and therefore not subject to construction.” Doyle v. Department of Business Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001). “[W]here the administrative ruling or policy is contrary to the plain and unequivocal language being interpreted, the ruling or policy is clearly erroneous.” Eager v. Florida Keys Aqueduct Authority, 580 So.2d 771, 772 (Fla. 3d DCA 1991).

State Farm argues that it would a good idea as a matter of policy to require companies like Diagnostic to register. That policy determination is for the Legislature* not for us. The Legislature’s statutory language is clear and does not cover Diagnostic.

For the stated reasons, we conclude that Diagnostic did not satisfy the definition of “clinic” under section 456.0375, Florida Statutes, and was not required to register. It follows that State Farm was in error in refusing payment in the two cases now before us. We affirm the summary judgment in the Comesana case, reverse the summary judgment in the Pena case, and remand both cases for further proceedings consistent herewith.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.

      . Once this issue arose, Diagnostic registered.

      . Read in context, the word "single” modifies the phrase "structure or facility.”

      . The statute does not contain a definition of "facility.” A dictionary definition is "something (as a hospital, machinery, plumbing) that is built, constructed, installed or established to perform some particular function or to serve or facilitate some particular end.” Webster’s Third New International Dictionary 812-13 (1986).

      . Effective March 1, 2004, the legislature has repealed section 456.0375, Florida Statutes. See ch.2003-411, § 15, Laws of Fla. New statutory provisions have been put in place. See id. § 4; ch. 400, part XIII, Fla. Stat. (2003). No issue regarding the interpretation of the 2003 enactments is now before us.


author: PER CURIAM. SCHWARTZ, Chief Judge

text:
    SEARS ROEBUCK AND CO., a New York Corp., Appellant, v. Joseph WILLIAMS and Mary Williams, as guardians and next best friends of Joey Williams, a minor, Appellees.
    No. 3D02-1458.
    District Court of Appeal of Florida, Third District.
    March 31, 2004.
    Rehearing and Rehearing En Banc Denied July 14, 2004.
    Marlow, Connell, Valerius, Abrams, Adler and Newman and Rosemary B. Wilder, Coral Gables; Arnstein & Lehr and Alfredo Marquez-Sterling, Esq., for appellant.
    Ginsberg & Schwartz and Arnold R. Ginsberg, Miami; Goldberg & Vova, P.A. and Judd G. Rosen, for appellee.
    Before SCHWARTZ, C.J., and GREEN, J., and BARKDULL, THOMAS, JR., Senior Judge.
   PER CURIAM.

This is an appeal from an order granting the plaintiffs motion for new trial, and from a partial summary judgment which held that the appellant, Sears Roebuck and Co., was vicariously liable for the acts of its co-defendant, Diamond Exteriors, Inc.

Finding no clear abuse of discretion, we affirm the order for new trial. See Brown v. Estate of Stuckey, 749 So.2d 490, 497-98 (Fla.1999) (“When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.”). See also Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959) (holding that the granting of a motion for new trial should not be disturbed absent a clear showing of abuse of discretion).

We, however, reverse the summary judgment holding the appellants vicariously hable. The question of agency and/or apparent agency is generally a question of fact which must be determined by a jury. Robbins v. Hess, 659 So.2d 424, 427 (Fla. 1st DCA 1995). This case is no different. Where, as here, the record reflects that different inferences can be made as to an agency relationship, summary judgment is improper. See Robbins, id. (finding that the question of apparent agency could be resolved by summary judgment only in cases where the evidence is capable of just one determination (citing Kobel v. Schlosser, 614 So.2d 6, 7 (Fla. 4th DCA 1993))).

Accordingly, we affirm in part, reverse in part and remand for new trial.

GREEN, J., and BARKDULL, THOMAS H., JR., Senior Judge, concur.

SCHWARTZ, Chief Judge

(dissenting).

The trial judge’s order granting a new trial was not based on a discretionary call concerning the weight of the evidence but rather upon the conclusion that two legal errors had been committed. Because this is the case, we are on equal footing with the lower court in determining the validity of the grounds assigned. Midtown Enterprises, Inc. v. Local Contractors, Inc., 785 So.2d 578 (Fla. 3d DCA 2001). Since I believe that the record shows that there was neither actual error, preservation, see Sears Roebuck & Co. v. Jackson, 433 So.2d 1319 (Fla. 3d DCA 1983), and prejudice as to either of the issues relied upon in the order: bifurcating the issues of liability and causation, see Scandinavian World Cruises Ltd. v. Barone, 573 So.2d 1036 (Fla. 3d DCA 1991), or in the claim of jury confusion, I would reverse the order and direct the entry of judgment on the verdict.

      . Disapproved of on other grounds by Murphy v. International Robotic Systems, Inc., 766 So.2d 1010 (Fla.2000).

      . On this issue, the record shows only that, towards the end of the jury’s deliberation it asked a question as to which, as the trial court responded without objection, was irrelevant to the issues before it:
      THE COURT: This is the question. Ready?
      "Has it been medically established that Joey Williams, Junior suffered brain damage due to the exposure of carbon monoxide?”
      MR. ROSEN: I predicted it, Judge.
      THE COURT: Okay. I'm going to say that is not for your consideration. This portion of the trial is whether or not the re-roofing was done negligently.
      Do we all agree on that?
      MR. ROSEN: Yes.
      MR. LATIMER: Actually, Your Honor, I think that, so far, because the jury is considering that, I think that they have so far gotten into causation, because of the evidence that has gotten in already, that—
      THE COURT: That’s a lot to say. I still have to say that.
      MR. GOLDBERG: What would you want her to say?
      THE COURT: I have to answer it.
      MR. LATIMER: That we mis-try the case.
      THE COURT: We have to put it on this.
      MR. ROSEN: This is not—

        THE COURT: This issue is not for your consideration at this time. The issue — and it even says in the case, the issue for your determination is whether — the issue for your determination is whether the re-roofing was done negligently. Is that correct?
      MR. GOLDBERG: Are you making a statement or asking a question?
      THE COURT: The issue for your determination is whether the re-roofing was done — •
      (The Bailiff provided the document to the jury.)


text:
    Stella RYLANDER, Appellant, v. Benny TESCHOUVA, Appellee.
    No. 3D03-1972.
    District Court of Appeal of Florida, Third District.
    April 21, 2004.
    Rehearing and Rehearing En Banc Denied July 14, 2004.
    Michael J. Reppas, II; Arthur J. Mor-burger, for appellant.
    Horan, Horan & Wallace and R. Bruce Wallace (Key West), for appellee.
    Before GERSTEN, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Stella Rylander appeals from an order of contempt entered against her. We reverse.

Benny Teschouva, as tenant, sued Stella Rylander, as landlord, seeking a writ of possession, injunctive relief, and damages for Rylander’s locking him out of his retail premises. The trial court ordered Rylan-der to restore possession to Teschouva, and to refrain from interfering with his possession.

Upon further proceedings, the trial court found it necessary to enter an order of contempt against Rylander for violating the terms of the injunction. Relying on Parisi v. Broward County, 769 So.2d 359 (Fla.2000), the court imposed a hybrid “bonded fine” sanction against Rylander that contained both compensatory and coercive elements. The court fashioned the compensatory contempt element by imposing a $1,400.00 fine against Rylander for interfering with Tesehouva’s business. The trial court correctly related the amount of the sanction to damages actually suffered by Teschouva as a result of Ry-lander’s conduct, and considered Rylan-der’s financial capacity to pay. However, misunderstanding Parisi, the trial court then imposed a coercive contempt element, suspending the fine pending Rylander’s future compliance with the court’s prior orders. To insure the availability of the $1,400.00 fine and to secure Rylander’s future compliance, the court ordered Ry-lander to pay the fine into the court registry.

The Florida Supreme Court in Parisi, however held that a hybrid “bonded fine” is an invalid coercive civil contempt sanction, concluding that it should not be utilized by trial courts. Parisi at 366, 367. We therefore reverse the order of contempt and direct the trial court to order Rylander to pay the $1,400.00 as a pure compensatory fine directly to Teschouva.

Reversed and remanded with directions.

      . In Rylander's earlier appeal, this court affirmed the trial court’s order restoring possession and ordering injunctive relief. Rylander v. Teschouva, 864 So.2d 18 (Fla. 3d DCA 2004).


author: WARNER, J. WARNER, J.

text:
    Lee Ellen DASCOTT, Appellant, v. PALM BEACH COUNTY, Florida, a political subdivision of the State of Florida, Appellee.
    No. 4D03-1427.
    District Court of Appeal of Florida, Fourth District.
    April 21, 2004.
    Order Denying Rehearing July 28, 2004.

      Frederick W. Ford, West Palm Beach, for appellant.
    Paul F. King, West Palm Beach, for appellee.
    Jonathan D. Kaney, Jr., Jonathan D. Kaney, III and Ty Harris of Cobb & Cole, Daytona Beach, for Amicus Curiae First Amendment Foundation.
   WARNER, J.

Appellant was terminated from employment with Palm Beach County after proceedings before a pre-termination conference panel convened pursuant to county ordinance. Appellant objected to the closing of the panel’s deliberations, claiming that the Government in the Sunshine Act required the panel’s deliberations to be public. We agree and reverse.

Appellant was employed as a senior secretary in the Senior Services Division of the Palm Beach County Department of Community Services. In 1998 she was called before the Grievance Committee for violation of County Merit System Rules. After a hearing before the committee, which was not noticed to the public, the committee excluded appellant from its deliberations and ultimately recommended a three-day suspension.

In 2002, appellant was served with a notice of intent to terminate her employment for a second violation of County Merit System Rules. Prior to her termination, a conference was held before a panel consisting of her department head and representatives of the Personnel Director and the Director of the Office of Equal Opportunity. The letter informing her of the hearing stated:

The Director of Employee Relations and Personnel and the Director of Equal Opportunity, or their representatives, will attend this conference as neutrals and will assist in arriving at a final decision as to whether to terminate your services or substitute some modification.
If the joint decision of the conference panel is to uphold your discharge, you still retain the right to appeal.... If you are not discharged, you will be informed as to any alternate action agreed on by the panel.

(Emphasis added). During the hearing, appellant was questioned by members of the panel, and her attorney questioned appellant’s supervisor and another witness. The panel then instructed appellant and her attorney to leave the room while they deliberated as to whether the proposed termination action should be upheld or modified. Pursuant to the county rules, the department head made the final decision to uphold the recommended termination.

After her termination, appellant filed a complaint for declaratory judgment and injunctive relief against the county, claiming that it violated the Government in the Sunshine Act by failing to provide public notice of the pre-termination conference and by deliberating in secret. She requested the court declare her termination null and void, order the county to reinstate her, and enjoin the county from conducting further pre-termination conferences in violation of the Sunshine Act.

Both appellant and the county filed motions for summary judgment. After filing her motion for summary judgment, appellant was allowed to amend her complaint to allege a violation of the Sunshine Act with respect to the Grievance Committee hearing in 1999. At the hearing on the motions, the county requested that its motion for summary judgment include this amended count because the Sunshine Act issues were the same for both counts.

In the county’s motion for summary judgment, it claimed that the employees who deliberated with the department head regarding appellant’s termination did not constitute a committee or panel under the meaning of the Sunshine Act. Attached to the motion were three affidavits. The County Administrator swore that he had the sole power to terminate employees and delegated this responsibility to the head of the department where the subject employee is assigned. The department head’s affidavit averred that he was designated by the County Administrator to attend the pre-termination conference, and it was he that made the decision to terminate appellant. While the department head did discuss the county’s recommendation to terminate her with the other county employees present at the hearing, their input was solely advisory, as he retained sole authority on the issue of termination. A third employee claimed that she was present at the conference and, after appellant left the room, “a short discussion ensued regarding the evidence and argument presented.” She claimed that a vote was not taken on the recommendation because the department head held the sole authority to decide whether to terminate appellant.

After hearing the argument on the motions, the court ruled in favor of the county, finding the Sunshine Act inapplicable to the personnel matters under the direction of the County Administrator. It also determined the'Sunshine Act was inapplicable because the members of the conference panel and the grievance committee were not public officials. Appellant has appealed these rulings.

The Palm Beach County Charter states, “[t]he executive responsibilities and powers of the County, as authorized by the Board of County Commissioners, shall be assigned to and vested in a County Administrator [who] shall be appointed by and serve at the pleasure of the Board of County Commissioners.” Palm Beach County, Fla., Charter art. II, § 2.4. Pursuant to the Palm Beach County Code, the County Administrator shall “[s]uspend, discharge or remove any employee under the jurisdiction of the board of county commissioners pursuant to the procedures adopted by the board.... ” Palm Beach County, Fla., Code Chapter 2, art. II, § 2-20; see also Palm Beach County Merit System, 1.02D (stating “County Administrator shall select, appoint, employ, suspend, or remove any employee under the jurisdiction of the Board of County Commissioners pursuant to any and all procedures adopted by the Board and in accordance with ... the Merit System Rules”). Thus, the County Administrator has the sole power to suspend or terminate employees of the county.

Pursuant to the charter, the Board of County Commissioners passed an administrative code “provid[ing] a personnel system based on the merit system principle [including] a procedure for hearing' terminations and other disciplinary actions for all County employees.” Charter, art. II, § 2.4. The County Merit System Rules require that prior to termination, notice shall be provided informing the employee as to the reason for the proposed termination and the date, time and location of the pre-termination conference. See Merit System 7.05 A.l. A “Pre-termination Conference shall be conducted by the Department Head or designee, with the Personnel Director and the Director [of the] Office of Equal Opportunity or their representatives present.” Id. at A.2. “[T]he purpose of the conference is to hear the employee’s side of the charges to protect the employee from erroneous or arbitrary adverse action. After considering all the evidence, the Department Head or desig-nee shall decide whether to affirm the recommendation to discharge- the employee or take other action as deemed appropriate.” Id. According to these provisions, the County Administrator’s power to terminate employees is delegated to the department head or his designee. After the three member panel hears the evidence presented at the conference, it is up to the department head to determine whether to terminate the employee.

The critical issue in this case is whether the panel that deliberated on the subject of appellant’s discipline and termination was a “board” or “commission” within the meaning of the Sunshine Act. Section 286.011(1), Florida Statutes (2002), provides:

All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings..

In Wood v. Marston, 442 So.2d 934 (Fla.1983), the court examined the Sunshine Act in connection with a claim that a search committee for a new law school dean was subject to the act, and its meetings were required to be public. There, the power to appoint a dean was vested in the president of the university subject to a provision of the university constitution that required the president to consult with, a committee of the college faculty in making the appointment. See 442 So.2d at 936-37. Nothing, however, required the president to make the selection from recommendations of the panel. See id. at 937. '

The court noted that the search committee had both a “fact-gathering” role in the solicitation and compilation of applications and a decision-making role in determining which applicants to reject from further consideration. “In deciding which of the applicants to reject from further consideration, the committee performed a policy-based, decision-making function delegated to it by the president of the university through the faculty as a whole.” Id. at 938. The court held that application of the Sunshine Act depended on the decision-making nature of the act performed, not the make-up of the board or its proximity to the final decisional act. See id. at 941. Where the board or committee, regardless of its make-up, is delegated decision-making authority by a public official, its meetings and deliberations are subject to the Sunshine Act. See id. However, specifically approving Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976), the court held that where the meetings were not decision-making in nature but were held for the purpose of “fact-finding” to assist a public official in the execution of his or her duties, the public official’s consultation with staff or others is not subject to the Sunshine Act. See id.

These principles were applied in Cape Publications, Inc. v. City of Palm Bay, 473 So.2d 222 (Fla. 5th DCA 1985), where the court considered whether the Sunshine Act applied to the selection of a police chief. The city manager, who had sole authority to hire the chief, asked a group of individuals including the city attorney, personnel director, and two law enforcement personnel from other jurisdictions to attend the interviews of prospective candidates to ask questions of a technical nature and offer their comments so that the city manager would be better informed regarding his selection of the police chief. See 473 So.2d at 223. The record showed that the group was delegated no authority and merely assisted the city manager in making his decision.

Reviewing Marston and other cases, the court concluded that in each of the cases where the courts held the Sunshine Act applicable, the committee or panel had been delegated some decision-making authority. For instance, in Krause v. Reno, 366 So.2d 1244 (Fla. 3d DCA 1979), a case also involving a city manager seeking to hire a police chief, the public official had delegated to an advisory committee the task of screening applicants and recommending the top four or five to the city manager. See 473 So.2d at 224. Thus, the city manager had delegated at least some decision-making authority to the advisory committee.

In Cape Publications, the court distinguished its facts from these prior cases. It reasoned,

[ujnlike Krause, this group did no screening, conducted no interviews and made no recommendations to the city manager. Those tasks were performed by the city manager who was present at each interview, and who requested the group only to provide him with facts, through questioning and comments, such as would assist him in the execution of his duties. No decision-making was involved in the committee function. If there had been such decision-making function, then the Sunshine Law would apply even if all members of the group were city staff, because it is the nature of the act to be performed, not the make-up of the group, that determines the application of the statute.

Id. at 225.

Cape Publications was relied on by our court in City of Sunrise v. News & Sun-Sentinel Co., 542 So.2d 1354 (Fla. 4th DCA 1989). There, we held that the mayor, who had the sole authority to suspend or remove employees, was not required to comply with the Sunshine Act when meeting with an employee and the employee’s supervisor regarding discipline of the employee. See 542 So.2d at 1356. Because there was no delegation of the mayor’s authority to any other body, the meeting was not required to be public. See id.

Applying these principles to this case, we conclude that the pre-termination panel constituted a “board” or “commission” because it exercised decision-making authority. While in this case the County Administrator had the sole authority to discipline or terminate county employees, he delegated that authority to each department head. The department head in charge of appellant’s pre-termination conference chose to share this authority with the other members of the panel. As the panel exercised a decision-making function, a “board” or “commission” within the meaning of the Sunshine Act was formed. Thus, the deliberations of the panel should have been conducted in the sunshine.

When termination of an employee is considered, the administrative code of the county requires a pre-termination conference. The department head conducts the conference with the Personnel Director and the Director of the Office of Equal Opportunity, or their designees, present. The conference is informal, although the affected employee may bring an attorney to the hearing. Section 7.05 A.2 of the County Merit System Rules further provides that:

The Department Head or designee will explain that the purpose of the conference is to hear the employee’s side of the charges to protect the employee from erroneous or arbitrary adverse action.
After considering all the evidence, the Department Head or designee shall decide whether to affirm the recommendation to discharge the employee or take other action as deemed appropriate. The employee will be informed at the conference of the action to be taken.... The discharge will be effective immediately.

Nowhere in the rules is any decision-making authority delegated to the committee as a whole. Nevertheless, whether intended by the Board of County Commissioners or not, the department head deliberated with the panel to determine whether to terminate appellant. This was his intent, as set forth in the letter notifying appellant of the pre-termination conference. He informed appellant that the two representatives will attend this conference as “neutrals.” The letter further states that if the “joint decision of the conference panel is to uphold her discharge,” appellant may appeal. While the letter describes a delegation of authority to the panel to terminate appellant, the affidavits filed on behalf of the county indicate that no joint decision was made. Nevertheless, the affidavits suggest consultation and advice. We see little distinction between “advice” and “recommendations” in the context of this pre-termination panel. It appears to us that the conference panel assists in determining whether to terminate an employee.' Therefore, they participated in the decision-making authority delegated to the department head, and their meeting was subject to the Sunshine Act.

With respect to the Grievance Committee hearings, we hold that these are also subject to the Sunshine Act, because the Grievance Committee is the final hearing body for all matters determined to be grievances and exercises the authority to uphold, modify, or deny any grievance. See Merit System 7.06 A.5.a. Under the County Merit System Rules, the Grievance Committee clearly exercises decision-making authority, and therefore there is no question that this committee falls within the ambit of the Sunshine Act. See Marston, 442 So.2d at 941.

We therefore reverse the final summary judgment of the trial court and remand for further proceedings consistent with this opinion, including a determination of remedies available to the appellant for both violations of the Sunshine Act.

GROSS and HAZOURI, JJ., concur.

ON MOTION FOR REHEARING

WARNER, J.

Contrary to its statements in the trial court, the County complains on rehearing that there are disputed issues of material fact and that our opinion weighs the evidence. It points to the affidavits filed by the department head and its employees which state that after the panel hearing, when appellant and her attorney were instructed to leave the room, no vote was taken and the department head alone made the decision to terminate appellant. We do not dispute that was the case. But all the affidavits state that advice was given on the issue to terminate, and there is no dispute that the decision to terminate was made during that closed meeting.

Because it is undisputed that the staff gave advice on the ultimate decision to terminate appellant during the closed-door session, whether or not the staff members voted on the termination decision, we conclude that the closing of the deliberations is a violation of section 286.011(1), Florida Statutes (2002). These undisputed facts distinguish this case from Cape Publications, Inc. v. City of Palm, Bay, 473 So.2d 222 (Fla. 5th DCA 1985), and Bennett v. Warden, 333 So.2d 97 (Fla. 2d DCA 1976), where meetings were for fact-finding only, and no decisions were made.

Further, Knox v. District School Board of Brevard, 821 So.2d 311 (Fla. 5th DCA 2002), is also distinguishable. In that case, an advisory panel was established by an area school superintendent to review applications of candidates for a school principal position. Their recommendations were made to the district superintendent who then nominated one candidate to the school board for the position. Because the advisory panel exercised no decision-making authority, and all of the applications were sent to the district superintendent, the court found that the Sunshine Act did not apply to its meetings. See id. at 314-15. In contrast, the panel in this case was established by the Board of County Commissioners through its personnel regulations, and the County Administrator delegated his decision-making authority to the department head who convened the panel to deliberate on the decision to terminate.

The County suggests that the effect of this decision is far reaching. However, we believe that it is limited to its particular facts. Here, the County enacted in its administrative code a Merit System governing its employees, including their termination from employment. It provided for a pre-termination hearing, which included the ultimate decision-maker and designated staff, at which appellant was allowed to be present and contest her termination. Immediately after the hearing, the panel went into a closed-door session during which the ultimate decision to terminate appellant was made. If the County is suggesting that panels meeting on whether to terminate employees are not subject to section 286.011, we rejected that position in City of Sunrise v. News & Sun-Sentinel Co., 542 So.2d 1354 (Fla. 4th DCA 1989). On the other hand, if the County is suggesting that no evaluation and advice on the decision to terminate was given to the ultimate decision-maker at the time of his decision, then there was no need for a closed-door deliberation.

As so limited to the particular facts of this case, we do not agree that this decision has the effect of bringing within the ambit of the Sunshine Act all consultations with staff made by government decision-makers. Therefore, we decline to certify a question of great public importance as requested by the County.

GROSS and HAZOURI, JJ., concur.


author: PETERSON, J.

text:
    BILL HEARD CHEVROLET CORP., ORLANDO, Appellant, v. Robert WILSON, Eric Kline, Tara McKay, et al., Appellees.
    No. 5D03-3249.
    District Court of Appeal of Florida, Fifth District.
    May 7, 2004.
    Rehearing Denied July 12, 2004.

      Jennifer S. Eden and Catherine J. Livingston of Gronek & Latham, LLP, Orlando, for Appellant.
    Steven M. Fahlgren of Law Offices of Steven M. Fahlgren, P.A., Orlando, for Appellees.
   PETERSON, J.

Bill Heard Chevrolet Corp., Orlando, (“Bill Heard Chevrolet”), appeals an order denying its motion to compel arbitration of claims made by Robert Wilson, Eric Kline, Jami McCoy and Tara McKay (collectively “Plaintiffs”).

Plaintiffs filed a. complaint for violations of the Florida Deceptive and Unfair Trade Practices Act, the Motor Vehicle Retail Sales Finance Act, for false advertising (as to Wilson only), and for fraud (as to Kline, McCoy and McKay) involving purchases of automobiles from Bill Heard Chevrolet. In response, Bill Heard Chevrolet filed a motion to compel arbitration based upon an “Alternative Resolution Agreement” which provides the following:

In order to minimize the expense and difficulty of resolution disputes related to this contract, informal mediation and binding arbitration are the only procedures which will be used to resolve disputes between the parties.
CUSTOMER and DEALER agree that any and all claims, disputes or issues involving CUSTOMER and DEALER, DEALER’S officers, agents or employees, or DEALER’S surety bonding company shall be resolved in accordance with the following provisions:
A.NOTICE OF DISPUTE
Each party shall notify the other party in writing of any claim, dispute or issue it has against the other party concerning any matter described in Section C.l below at least 20 days before filing for mediation pursuant to Section B below. ... If requested by either party, the parties agree to meet to discuss the claim, dispute or issue within such 20-day period....
B. MANDATORY MEDIATION
1. Any claim, dispute or issues arising between the CUSTOMER and the DEALER, DEALER’S officers, agents or employees or DEALER’S surety bonding company concerning any matter described in Section C.l below shall be submitted to mediation pursuant to the Chapter 44 Florida Statutes prior to any party seeking recourse to arbitration. Either party shall give notice to the other and to The American Arbitration Association, 201 East Pine Street, Suite 800, Orlando, Florida 32801-2742.
* * *
3. The parties agree that in the event that parties are unable to resolve the claims, disputes or issues concerning any matter enumerated in Section C.l below through mediation that they will thereafter submit said claims to arbitration pursuant to Section C below.
C. MANDATORY ARBITRATION
1. DEALER and CUSTOMER hereby agree to submit to binding arbitration the following claims, disputes or issues involving DEALER, DEALER’S officers, agents or employees, or DEALER’S surety bonding company, and which may arise in connection with or in any way relating to, directly or indirectly, the Contract or the Vehicle or any subsequent contract with respect to the Vehicle or any course of conduct or course of dealing, including: (1) contract enforceability; (2) claims for vehicle warranty, workmanship, or repair; (3) claims relating to acts, omissions or representations which induced the purchase or lease of the vehicle or any trade-in related therein; (4) claims relating to acts, omissions or representations in connection with the modification or termination or replacement of the contract or any subsequent contract with respect to the vehicle, whether occurring before or after the modification or termination, or replacement; (5) reformation of any contract or document; (6) fraud in the inducement; (7) breach of contract; (8) negligent misrepresentation; (9) fraud in the execution or performance; (10) intentional or negligent infliction of emotional distress; (11) negligent hiring, retention or supervision; (12) conversion; (13) battery; (14) claims for punitive damages; (15) rescission, rejection or revocation of acceptance; (16) tort; (17) trespass; (18) wrongful repossession; (19) claims for punitive damages; (20) violation of Florida’s Deceptive and Unfair Trade Practices Act; (21) violation of any provisions of Chapter 319, 320, 520, or 679, Florida Statutes; (22) violation of federal or state statutes or regulations regulating advertising; (23) violation of any federal or state consumer protection statutes or regulations; (24) violation of any federal or state odometer laws or regulations; (25) violation of federal or state statutes or regulations; (26) claims for injunction; (27) statutory bond claim; (28) violation of Consumer Leasing Act; (29) violation of Truth in Lending Act; (30) violation of Equal Credit Opportunity Act; (31) violation of Fair Credit Reporting Act; (32) violation of Magnuson Moss Warranty Act; (33) the arbitrability of any claims, disputes or issues pursuant to this Dispute Resolution Agreement; and (34) any other claims, disputes or issues CUSTOMER may have whether they are based in law or in equity. DEALER and CUSTOMER agree to submit to American Arbitration Association for arbitration pursuant to the arbitration rules of American Arbitration Association the matters addressed in this Section C.l.
2. All claims, disputes and issues described in Section C.l above shall be arbitrated whether said claims, disputes or issues arise prior to or during any future civil litigation. Arbitration pursuant to this Agreement is not intended to be a substitute for nor deprive the parties of, rights, including the right to arbitration, provided for by Chapter 681 of the Florida Statutes, known as the “Lemon Law”. The arbitration specified in this clause is intended to provide an arbitral forum instead of judicial forum for the resolution of disputes, as authorized by Florida Statute 682.02. CUSTOMER may require that disputes eligible for arbitration by the Florida New Motor Vehicle Warranty Board, pursuant to Chapter 681 of the Florida Statutes be submitted to such board for arbitration in lieu of American Arbitration Association.
D. OTHER
1. In any arbitration or litigation arising out of any matter covered by this Dispute Resolution Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs through and including appeals. Attorney’s fees and costs in arbitration shall be determined by the arbitrator.
2. The American Arbitration Association shall be utilized for mediation and arbitrations and the mediation/arbitration rules of the American Arbitration Association shall apply to this agreement.
3. If any part or parts of this Dispute Resolution Agreement are not valid according to any applicable law(s), all other parts will nevertheless remain enforceable. This Dispute Resolution Agreement shall survive the termination, rescission or failure of any condition of the Contract.

(Italicized emphasis added).

The court conducted an evidentiary hearing on the matter and although all of the Plaintiffs acknowledge that they executed their respective Alternative Resolution Agreement and were not prevented from reading it, their defense was that they did not read it before signing. The Plaintiffs also assert that they would not have executed their respective agreement if they had known they were giving up their right to a trial by jury.

The trial court found the alternate resolution provisions of the agreements to be unenforceable because “neither party was aware of the binding nature of [ ] arbitration,” as there was a “mutual mistake or misunderstanding by all parties.” Apparently, the trial court made this finding after hearing the testimony of a Bill Heard Chevrolet representative who exhibited some confusion as to the procedural niceties and finality of the arbitration procedure.

It is now an axiom of federal and Florida law that written agreements to arbitrate are binding and enforceable, and that in the absence of waiver a court must compel arbitration when an arbitration agreement and an arbitrable issue exist. E.g., Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 218, 105 S.Ct. 1238, 84 L.Ed.2d 158 (1985); RFC Nat’l Mgmt. Co. v. Beauregard, 739 So.2d 630 (Fla. 5th DCA 1999); Gale Group, Inc. v. Westinghouse Elec. Corp., 683 So.2d 661, 663 (Fla. 5th DCA 1996); North American Van Lines v. Collyer, 616 So.2d 177 (Fla. 5th DCA 1993); 9 U.S.C. § 2; § 682.02, Fla. Stat. (2003). Public policy favors arbitration as an efficient means of settling disputes, because it avoids the delays and expenses of litigation. RFC Nat’l Mgmt., 739 So.2d at 631. In view of that public policy, all questions concerning the scope or waiver of the right to arbitrate should be resolved in favor of arbitration rather than against it. E.g., Royal Prof l Builders, Inc. v. Roggin, 853 So.2d 520 (Fla. 4th DCA 2003); Benedict v. Pensacola Motor Sales, Inc., 846 So.2d 1238 (Fla. 1st DCA 2003); Beverly Hills Dev. Corp. v. George Wimpey of Fla., Inc., 661 So.2d 969, 971 (Fla. 5th DCA 1995).

The language in the agreements is unambiguous in the expressed intent that any claim, dispute or issue arising between the customer and the dealer be arbitrated. Indeed, the subject agreements specifically include all of the various claims made in the Plaintiffs’ complaint.

The trial court’s reliance on the Plaintiffs’ assertion that they would not have waived a jury trial had they read the important documents that they were signing or its reliance on the imperfect understanding of arbitration by one Bill Heard Chevrolet representative is misplaced. It is the intention as expressed by the language employed in the agreements that governs, not the after-the-fact testimony of the parties. E.g., Gendzier v. Bielecki, 97 So.2d 604 (Fla.1957) (holding that the test of the meaning and intention of the parties is the content of the written document). It is also well-established that no party to a written contract in this state can defend against its enforcement on the sole ground that he or she signed it without reading it. E.g., Qubty v. Nagda, 817 So.2d 952 (Fla. 5th DCA 2002) (quoting Allied Van Lines, Inc. v. Bratton, 351 So.2d 344 (Fla.1977)); Sabin v. Lowe’s, 404 So.2d 772 (Fla. 5th DCA 1981) (“A party has a duty to learn and know the contents of a proposed contract before he signs and delivers it and is presumed to know and understand its contents, terms and conditions.”)

We reverse and remand with directions to the trial court to enter an order compelling arbitration of the Plaintiffs’ claims against Bill Heard Chevrolet.

THOMPSON and MONACO, JJ., concur.


author: KLEIN, J. STONE, J., KLEIN, J.

text:
    Kelvin FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4568.
    District Court of Appeal of Florida, Fourth District.
    May 19, 2004.
    Order Certifying Question July 14, 2004.
    Rehearing Denied July 14, 2004.

      Evelyn A. Ziegler, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   KLEIN, J.

A jury, which could have found appellant guilty of attempted second degree murder with a firearm, found him guilty of the lesser included offense of aggravated battery under an instruction given over his objection. Jury findings that he discharged a firearm and inflicted serious bodily injury increased the penalty for the aggravated battery so that it was no longer less than if he had been convicted of attempted second degree murder with a firearm. We agree with appellant that under these facts the aggravated battery was not a lesser included offense and reverse for a new trial.

This case, which involved several charges, arose out of a shooting into a vehicle which injured a person not in the vehicle. Count III, involving the injured bystander, was submitted to the jury on attempted second degree murder with a firearm, but the jury found appellant guilty of the purportedly lesser included offense of aggravated battery while discharging a firearm and causing serious bodily injury. Under section 775.087, Florida Statutes (2002), our 10-20-life statute, the findings that appellant discharged a firearm and caused serious bodily injury increased the penalty on aggravated battery so that it was not actually less than the penalty for the greater offense, attempted second degree murder with a firearm.

Appellant cites Ray v. State, 403 So.2d 956 (Fla.1981), in which our supreme court held that a lesser included offense, by definition, is an offense which carries a lesser penalty. The principle of Ray has been adopted in Standard Jury Instructions in Criminal Cases (97-2), 723 So.2d 123, 124 (Fla.1998) (Regarding Appendix to the Schedule of Lesser Included Offenses comment on Schedule of Lesser Included Offenses); Fla. Std. Jury Instr. (Crim.), Comment on Schedule of Lesser Included Offenses. Because the conviction for aggravated battery involving the discharge of a firearm and serious bodily injury does not carry a lesser penalty than attempted second degree murder, appellant argues that it is not a lesser included under Ray.

The only argument advanced by the state is that we should not consider an enhancement statute such as section 775.087(2) in determining lesser includeds, because an enhancement statute was not considered when lesser includeds were defined in Ray. We do not agree that this distinction makes any difference. One of the reasons for allowing juries to convict on lesser included offenses is to allow a jury to exercise its “pardon” power, State v. Wimberly, 498 So.2d 929, 932 (Fla.1986). Allowing the jury to exercise its “pardon” power gives the jury the opportunity to have the defendant receive a punishment which is less severe than the crime charged. State v. Baker, 456 So.2d 419 (Fla.1984). It follows that we must consider all applicable statutes when determining if a crime is a lesser included offense. Greene v. State, 714 So.2d 554, 557 (Fla. 2d DCA 1998) (maximum sentence is no longer determined only by the degree of the crime); Iseley v. State, 865 So.2d 580 (Fla. 5th DCA 2004) (court considered section 775.087(2) in determining whether aggravated assault with a firearm is a greater offense than aggravated assault with a deadly weapon).

Appellant also argues that there is no competent substantial evidence to support the jury finding of serious bodily injury under section 775.087(2)(a)3, Florida Statutes. The essence of his argument is that not all bullet wounds are necessarily serious, giving the example of a slight grazing; however, the photograph of the victim in this case reflects a round scar in an area which would not be consistent with slight grazing. This was sufficient to support the finding of serious bodily injury.

We have considered the other issues raised and find them to be without merit. We therefore affirm the convictions on counts I and II, but reverse the conviction under count III for a new trial. Appellant states that on retrial he should be charged only with aggravated battery without a firearm, but he has given us no theory or authority to support that statement, and we accordingly decline to address that issue. He cannot, of course, be retried on any charge on which he was acquitted.

TAYLOR, J., concurs.

STONE, J., dissents with opinion.

STONE, J.,

dissenting.

I would affirm.

I can discern no reason to treat the jury’s findings in the verdict form in this case any differently, for the purpose of applying a 10-20-life enhanced penalty, than such findings applied when determining other sentence enhancements. But for the jury’s special verdict findings on the sentence enhancement issues, the conviction would be one of a lesser degree felony.

The jury was advised that the additional findings would subject the defendant to enhanced penalties. The jury was given the option of finding Franklin guilty of attempted second-degree murder with a firearm (with special additional findings as to discharge and injury), or lessers that included attempted second-degree murder or aggravated battery with a firearm (with special additional findings to be made as to whether a firearm was discharged and whether great bodily harm was inflicted.). The jury could have determined that the offense was committed without discharge or without great bodily harm. Were it not for the fact that we require jurors, rather than the court, to make enhancement findings, Franklin would have no argument. In my judgment, affirming on these facts is not inconsistent with Ray, 403 So.2d 956.

ON MOTION TO CERTIFY A QUESTION OF GREAT PUBLIC IMPORTANCE

KLEIN, J.

The state has requested, in its motion for rehearing, that we certify the question raised in this case as one of great public importance. We agree that we should because our decision will affect how juries are instructed in many cases, and because we are uncertain as to whether our resolution of this issue is required by Ray v. State, 403 So.2d 956 (Fla.1981), which defined lesser included offenses, but did not consider the effect of a statute such as section 775.087. We accordingly certify the following question as one of great public importance:

WHERE THE EVIDENCE WOULD SUPPORT FINDINGS UNDER SECTION 775.086, FLORIDA STATUTES, THAT RESULT IN THE PENALTY FOR AGGRAVATED BATTERY BEING THE SAME AS FOR ATTEMPTED SECOND DEGREE MURDER, IS AGGRAVATED BATTERY A LESSER INCLUDED OFFENSE OF SECOND DEGREE MURDER?

STONE and TAYLOR, JJ., concur.