author: CANADY, Judge.

text:
    Jorge GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-874.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Ap-pellee.
   CANADY, Judge.

Jorge Garcia appeals his conviction for possession of methamphetamine. Because we conclude that none of the issues raised by Garcia justify reversal of his conviction, we affirm the judgment against him.

I. FACTS

In the early morning hours on June 9, 2001, Pasco County Deputy Sheriff Joseph Irizarry observed Garcia driving a truck. Garcia’s vehicle first came to Deputy Iri-zarry’s attention when it passed through a flashing yellow light without slowing down. Thereafter, Deputy Irizarry saw Garcia’s vehicle go off the road while making a right-hand turn and then weave off the roadway onto the grassy shoulder three times. After observing this behavior and following Garcia’s vehicle for approximately a quarter of a mile, Deputy Irizarry decided to stop Garcia’s vehicle.

After the vehicle stopped and Deputy Irizarry approached the driver’s window of the vehicle, he smelled alcohol and observed that Garcia’s eyes were bloodshot and that Garcia’s speech was slurred. Garcia was alone in the truck. Deputy Irizarry proceeded to conduct field sobriety tests. After conducting the tests, Deputy Irizarry arrested Garcia for driving under the influence.

In the meantime, Deputy Wilkins and Deputy Banner arrived at the scene. In the course of searching Garcia’s truck incident to his arrest, Deputy Wilkins found an item — which looked like a softball wrapped in black electrical tape — -underneath the passenger’s seat of Garcia’s truck. Garcia told the deputies at the scene that he did not know what the item was, that he had not seen it before, and had not known that it was in the truck. He also stated that his truck had recently been stolen and that some friends had been in his truck earlier that night. Subsequent tests conducted by the FDLE crime laboratory determined that an off-white powder contained within the item was a mixture containing methamphetamine and a cutting agent.

Garcia was charged by information with trafficking in methamphetamine, driving under the influence, and obstructing or resisting an officer without violence. In his testimony at trial, Garcia stated that the night of his arrest he had the truck at a party from about 7:00 p.m. until 2:00 a.m. His truck was used at the party for playing CDs. Garcia also used the truck on two occasions during the party to take friends to buy beer. Garcia denied using drugs. He testified that he did not put the tape-covered item in the truck, know it was there, or know what it contained. Finally, Garcia testified that his truck had been stolen on Wednesday, May 31, from a shop where he had taken it. The truck was recovered the following Monday in a dirty condition and containing items that did not belong to Garcia. After recovering the truck, he returned it to the shop for the installation of a stereo. When he later picked up the truck, it was clean.

Garcia was found guilty of the driving under the influence charge and guilty of the lesser-included crime of possession of methamphetamine on the trafficking offense. He was found not guilty of the obstructing or resisting charge.

During the trial, at the close of the State’s evidence and at the close of all the evidence, Garcia moved for a judgment of acquittal on the trafficking charge pursuant to Florida Rule of Criminal Procedure 3.380(a). The motion was denied. After Garcia was convicted, he renewed his motion for judgment of acquittal pursuant to rule 3.380(c). Once again, the motion was denied. Garcia also moved for a new trial pursuant to Florida Rule of Criminal Procedure 3.580. That motion was also denied.

II. ISSUES ON APPEAL

Garcia raises several issues which lack merit and which we will not address. Two issues raised by Garcia deserve discussion: (1) the claim that the trial court erred when it denied Garcia’s motion for judgment of acquittal, and (2) the claim that the trial court gave an erroneous jury instruction and therefore should have granted his motion for new trial. Garcia’s motion for judgment of acquittal was based on his contention that the evidence presented at trial was insufficient to establish that he had knowledge of the illicit nature of the substance contained in the softball-shaped item found in his truck. On the jury instruction issue, Garcia contends that the trial court erred when it failed to give an instruction that the lesser-included offense of possession of methamphetamine can be proven only if the defendant had knowledge of the illicit nature of the substance. Garcia requested such a guilty knowledge instruction on the trafficking charge, but not on the possession charge. Garcia argues that the request on the trafficking charge was sufficient to apprise the trial court of the need for a guilty knowledge instruction on the possession charge. He further contends that even if that request was insufficient to preserve the error the trial court’s failure constitutes fundamental error.

III. ANALYSIS

A. Motion for Judgment of Acquittal Based on Insufficient Proof of Possession

In this case — like many other drug possession cases where the evidence might not be sufficient to establish actual possession — the prosecution presented its case based on an alternative theory of constructive possession. Actual possession requires that the drugs be “in the hand of or on the person or in a bag or container in the hand of or on the person, or ... so close as to be within ready reach and ... under the control of the person.” In re Std. Jury Instr. in Crim. Cases, 543 So.2d 1205, 1218 (Fla.1989); see also McCoy v. State, 840 So.2d 455 (Fla. 4th DCA 2003). In constructive possession cases, proof of the defendant’s possession turns on the circumstances surrounding the location of the drugs when they are found and a resulting inference concerning the defendant’s control of the drugs.

The existence of constructive possession of an item by a defendant depends on whether there is “such a nexus or relationship between the defendant and the goods that it is reasonable to treat the extent of the defendant’s dominion and control as if it were actual possession.” United States v. Casalinuovo, 350 F.2d 207, 209 (2d Cir.1965). To establish that a defendant is guilty of possession of illicit drugs under a constructive possession theory it is necessary to prove “(1) the defendant’s ability to exercise dominion and control over the [drugs]; (2) his knowledge of the presence of the [drugs]; and (3) his awareness of the illicit nature of the [drugs].” Elias v. State, 526 So.2d 1014, 1015 (Fla. 2d DCA 1988).

“[K]nowledge of contraband found within an automobile ...' is generally inferred or presumed from one’s exclusive possession [of the automobile] unless and until proven otherwise.” State v. Paleveda, 745 So.2d 1026, 1028 (Fla. 2d DCA 1999) (holding that trial court erred in dismissing cocaine possession charge where undisputed facts showed that defendant was “in exclusive control and possession of an automobile in which cocaine was found next to the driver’s seat,” thus establishing a “prima facie case of actual possession of cocaine”). This is based on the eminently sensible recognition of the reality that persons who lay claim to a valuable possession — such as illegal drugs — are quite unlikely to place that valued possession in a motorized conveyance which is under the exclusive dominion and control of another and which may speedily bear it away to a place from which it cannot be recovered. It is thus reasonable to assume that a person who is in exclusive possession and control of a motor vehicle bears responsibility for such items of value that are located in the vehicle. Cf. Green v. State, 667 So.2d 208, 211 (Fla. 2d DCA 1995) (holding that where “the [defendant] jointly possessed the car with his brother, his knowledge of the presence of cocaine ... could not be inferred but had to be established by independent proof’); State v. Oxx, 417 So.2d 287, 291 (Fla. 5th DCA 1982) (stating that “proof of non-exclusive constructive possession alone is insufficient to justify an implication of knowledge,” and that in such cases “the State must present some corroborating evidence of knowledge to establish a prima facie case”).

A defendant’s constructive possession of drugs based on exclusive possession of an automobile in which the drugs are located is also sufficient to raise a presumption that the defendant had knowledge of the illicit nature of the drugs. The presumption of knowledge of the illicit nature of the substance is predicated on the common sense proposition that ordinarily individuals who possess a substance will know what the substance is, along with the basic legal principle that individuals are charged with knowledge of what the law requires or prohibits. See State v. Medlin, 273 So.2d 394, 397 (Fla.1973) (holding that where defendant was charged with unlawful delivery of barbitu rate or central nervous system stimulant without a valid prescription the “State was not required to prove knowledge or intent since both were presumed from the doing of the prohibited act”); State v. Williamson, 813 So.2d 61, 65 (Fla.2002) (stating that Medlin presumption is “still applicable to both actual and exclusive constructive possession eases”); United States v. Hodson, 77 U.S. 395, 409, 19 L.Ed. 937 (1870) (“Every one is presumed to know the law”). The presumption of guilty knowledge which arises where it is established that the defendant had actual possession or exclusive constructive possession of the drugs may, of course, be overcome by evidence tending to show a lack of guilty knowledge. See Williamson, 813 So.2d at 64 (stating that Medlin presumption “may not be sufficient” to sustain a conviction “when there is other evidence which tends to negate the presumption”).

Garcia’s defense was based on his assertion that others had access to his truck and the opportunity to place the drugs there without his knowledge. But the fact that individuals other than the defendant may have previously had access to the automobile in which the drugs are found will not necessarily negate the presumption that the defendant was aware of the presence and the illicit nature of the drugs. In Parker v. State, 641 So.2d 483 (Fla. 5th DCA 1994), the defendant, who had been convicted of possession of cocaine, argued that, although he was the driver and sole occupant of the motor vehicle in which the drugs were found, there was inadequate proof of knowing possession to support his conviction. The defendant specifically relied on his testimony that earlier on the day he was arrested his nephew had possession of the vehicle in which the drugs were found. The court rejected the defendant’s argument: “The jury apparently did not believe that [the defendant’s] nephew had possession of his vehicle or, if he had such possession, that he left the cocaine behind. The question of exclusive possession is properly determined by the jury.” Id. at 484 (citing Jordan v. State, 548 So.2d 737 (Fla. 4th DCA 1989)); Demps v. State, 795 So.2d 141, 141—42 (Fla. 5th DCA 2001) (citing Parker in support of conclusion that jury can properly conclude that defendant who is “driver and sole occupant of a vehicle” is in possession of cocaine found even when “there is testimony that others have occupied the vehicle earlier in the day”); see also Lee v. State, 835 So.2d 1177, 1180 (Fla. 4th DCA 2002) (concluding that defendant’s “presence, as driver and sole occupant of the vehicle at the time of his arrest, is sufficient to show he exclusively possessed the vehicle, creating an inference of his dominion and control and guilty knowledge of the marijuana” found in vehicle).

Garcia was certainly entitled to defend against the State’s contention that he was in possession of the drugs by adducing facts to show that others previously had access to his truck and could have placed the drugs there without his knowledge. But it was by no means unreasonable for the jury to reject Garcia’s defense. There is no basis for disturbing the jury’s determination concerning this factual issue.

The courts should not grant a motion for judgment of acquittal unless the evidence is such that no view which the jury may lawfully take of it favorable to the [State] can be sustained under the law. Where there is room for a difference of opinion between reasonable men as to the proof or facts ... it is [the jury’s] conclusion ... that should prevail.

Lynch v. State, 293 So.2d 44, 45 (Fla.1974); see also Perry v. State, 801 So.2d 78, 84 (Fla.2001) (“The trial court’s finding denying a motion for judgment of acquittal will not be reversed on appeal if there is competent, substantial evidence to support the jury’s verdict.”). Accordingly, the trial court’s denial of Garcia’s motion for judgment of acquittal must be affirmed.

B. Motion for New Trial Based on Failure to Give Guilty Knowledge Instruction

It is a basic principle of the law that a defendant in a criminal case is entitled to a proper instruction to the jury concerning the elements of the crime charged against him. See Gerds v. State, 64 So.2d 915, 916 (Fla.1963) (discussing defendant’s “right to have a[c]ourt correctly and intelligently instruct the jury on the essential and material elements of the crime charged”). In this case, knowledge of the illicit nature of the substance was indisputably an element of the crime of drug possession at the time the offense charged against Garcia was allegedly committed. See Chicone v. State, 684 So.2d 736, 737 (Fla.1996) (holding that “guilty knowledge is an element of possession of a controlled substance ... and possession of drug paraphernalia”).

The State relies on section 893.101, Florida Statutes (2002), which was adopted by the legislature in response to Chicone, to justify the trial court’s failure to give a guilty knowledge instruction on the possession charge. Under that statute “knowledge of the illicit nature of a controlled substance is not an element” of drug offenses, but lack of such knowledge is an affirmative defense. § 893.101(1). These statutory provisions are, however, not applicable to this case since they became law after the alleged commission of the offense by Garcia. See Norman v. State, 826 So.2d 440, 441 (Fla. 1st DCA 2002) (holding that application of section 893.101 to offense occurring before enactment of statute would be “repugnant to article X, section 9, of the Florida Constitution, which prohibits retroactive application of statutes in criminal proceedings”); Blunt v. State, 831 So.2d 770, 772 (Fla. 4th DCA 2002) (holding that section 893.101, which “became effective as of May 13, 2002, may not be applied retroactively” to an offense which occurred before that date); Thomas v. State, 844 So.2d 723, 725 (Fla. 5th DCA 2003) (citing Blunt and Norman and holding that section 893.101 cannot be applied retroactively). Accordingly, the trial court was required to give a guilty knowledge instruction on the methamphetamine offenses, including the lesser-included possession offense.

The trial court did give an instruction concerning the trafficking charge against Garcia which included the guilty knowledge element. The court specifically instructed the jury that the defendant’s knowledge “that the substance was methamphetamine or a mixture containing methamphetamine” was a material element of the offense of trafficking. The trial court then gave an instruction concerning actual and constructive possession, which included this statement concerning nonexclusive constructive possession:

If a thing is in a place over which the person does not have control, in order to establish constructive possession, the State must prove the person has control over the thing, knowledge of the thing which was in the person’s presence, and the knowledge of the illicit nature of the thing.

(Emphasis supplied.) After giving the instruction regarding the elements of the trafficking offense and the requirements for establishing possession, the trial court proceeded to give an instruction on the elements of the simple possession offense. That instruction omitted any reference to the requirement that the defendant have knowledge of the illicit nature of the substance. After giving the instruction on the elements of possession, the trial court did, however, state that the prior instruction regarding the “definition of possession ... applies to the lesser charge as it did to the greater charge.”

During the course of its deliberations, the jury submitted the following question to the court: “What is the difference between trafficking and possession of methamphetamine?” In response to the jury’s inquiry, the trial court read the jury the instruction it had previously given concerning the elements of the possession offense and the trafficking offense. The court did not, however, repeat the instruction it had previously given concerning the meaning of actual and constructive possession.

The instruction given by the trial court on the possession offense was erroneous because it omitted an essential element of the crime — namely, knowledge of the illicit nature of the substance. The State argues that the reference to knowledge of the illicit nature of the substance contained in the instruction on the definition of actual and constructive possession was sufficient to apprise the jury of the guilty knowledge element of the possession offense. This argument fails because the statement regarding knowledge of the illicit nature of the substance contained in the definition of actual and constructive possession was limited to circumstances involving nonexclusive constructive possession. Nothing is said in the definition regarding the requirement for knowledge of the illicit nature of the substance in circumstances involving either actual possession or exclusive constructive possession. Since the State’s theory of the case was based on exclusive constructive possession — or arguably, actual possession— the instruction was clearly inadequate and erroneous.

But the fact that an error occurred with respect to the jury instruction does not mean that a conviction obtained after the giving of the erroneous instruction will necessarily be reversed. Section 924.051(3), Florida Statutes (2001), provides:

An appeal may not be taken from a judgment or order of a trial court unless a prejudicial error is alleged and is properly preserved or, if not properly preserved, would constitute fundamental error. A judgment or sentence may be reversed on appeal only when an appellate court determines after a review of the complete record that prejudicial error occurred and was properly preserved in the trial court or, if not properly preserved, would constitute fundamental error.

See also Fla. R.Crim. P. 3.390(d). Garcia neither requested an instruction concerning guilty knowledge on the possession offense nor objected to the trial court’s failure to give such an instruction. And Garcia’s request for a guilty knowledge instruction on the trafficking charge was not sufficient to preserve error with respect to the possession offense. Since Garcia did not properly preserve the error with respect to the jury instruction, his conviction can only be reversed and a new trial ordered if the error was fundamental.

An error is not fundamental “unless it reaches down into the [legality] of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the error alleged.” Hamilton v. State, 88 So.2d 606, 607 (Fla.1956) (citing statement in Brown v. Mississippi, 297 U.S. 278, 286, 56 S.Ct. 461, 80 L.Ed. 682 (1936), that fundamental error is “a wrong so fundamental that it made the whole proceeding a mere pretense of a trial”). Fundamental error is error that “permeate[s] or saturated] the trial with such basic invalidity” as to justify reversal even in the absence of a properly preserved objection. Brown v. State, 124 So.2d 481, 484 (Fla.1960). “[Fundamental error doctrine should be used Very guardedly.’ ” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (citing Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970) (“The [ajppellate [c]ourt should exercise its discretion under the doctrine of fundamental error very guardedly.”)). Accordingly, “rarely will an error be deemed fundamental, and the more general rule requiring a contemporaneous objection to preserve an issue for appellate review will usually apply.” F.B. v. State, 852 So.2d 226, 2003 WL 21555122 (Fla. July 11, 2003).

In State v. Delva, 575 So.2d 643 (Fla.1991), the court addressed the issue of when a trial court’s unpreserved error in failing to give proper instructions concerning the elements of the crime charged against the defendant will constitute fundamental error. The court articulated the basic rule that the failure to give a proper instruction concerning a particular element of the crime charged is a fundamental error only if the element was disputed at trial: “Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error[,] and there must be an objection to preserve the issue for appeal.” Id. at 645.

The Delva court applied this general principle to facts that are closely analogous to the facts of the case now under review. These are the basic facts of Delva:

[A] package of cocaine was discovered under the front seat of the car Delva was driving.... Delva’s defense was that he did not know the package of cocaine was even in his car. He presented testimony that the car was jointly owned by himself and his fiancee and the two of them as well as his brother all drove the car. He further presented testimony that his brother drove the car on the day of the arrest.

Id. The court focused specifically on the fact that “[t]here was no suggestion that Delva was arguing that while he knew of the existence of the package he did not know what it contained.” Id. This led the court to the conclusion that “[b]ecause knowledge that the substance in the package was cocaine was not at issue as a defense, the failure to instruct the jury on that element of the crime could not be fundamental error.” Id.

Of course, it is true that in a certain sense Delva’s defense necessarily involved a denial that he knew the nature of the substance in the package found in the car. He could not possibly know the nature of a substance if he did not know the substance existed. But this logical implication of the defense raised by Delva did not mean that Delva’s knowledge of the nature of the substance was a disputed issue at his trial. Since Delva’s theory of defense was predicated on his assertion that he had no knowledge of the existence of the package containing cocaine which the police discovered in the car he was driving, the court’s failure to give an instruction concerning knowledge of the illicit nature of the substance could not “‘reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Id. at 644-45 (quoting Brown, 124 So.2d at 484). Delva’s conviction hinged on the jury’s conclusion regarding the truthfulness of Delva’s assertion that he did not know the package even existed. The jury’s conclusion on that point was in no way affected by the trial court’s failure to instruct the jury on the guilty knowledge element. Accordingly, the trial court’s error in Delva could not be fundamental.

The parallels between Delva and the case under review are striking. Like the defendant in Delva, Garcia’s “defense was that he did not know the package of [illegal drugs] was even in his [vehicle].” Delva, 575 So.2d at 645. Like the defendant in Delva, Garcia sought to show that others had access to his vehicle and could have placed the drugs there. And in the instant ease, just as in Delva, “[t]here was no suggestion that [the defendant] was arguing that while he knew of the existence of the package [of drugs] he did not know what it contained.” Id. at 645. Although Garcia did assert that he did not know what was in the softball-shaped item found in his vehicle, that assertion was nothing more than a statement of the logical implication of his defense based on lack of knowledge that the item existed. As in Delva, the theory of defense advanced by Garcia was not affected by the absence of a guilty knowledge instruction. Therefore, just as there was no fundamental error in Delva, there is no fundamental error here.

We do note that, while in Delva the instructions given to the jury made no mention of the element of knowledge of the illicit nature of the substance, in the present case both the instruction on the elements of the trafficking charge and the definition of nonexclusive constructive possession did make reference to the guilty knowledge requirement. Thus, in the present case, unlike Delva, the instructions given to the jury were not simply incomplete but were expressly misleading. The juxtaposition of the different instructions in this case could have affirmatively created an impression among the jury members that guilty knowledge would be necessary to establish guilt for trafficking and for nonexclusive constructive simple possession cases but not for actual simple possession and exclusive constructive simple possession cases. But this difference in the factual context between the present case and Delva does not override the fundamental similarity of the two cases which arises from the theory of defense — the defendant’s lack of knowledge of the existence or presence of the drugs — employed in both cases. Under the court’s holding in Delva, Garcia’s reliance on that theory of defense negates his claim of fundamental error.

We are aware that in Scott v. State, 808 So.2d 166, 171 (Fla.2002), the supreme court held that the “requirement that an instruction must be given [on each element of the crime] does not depend on the defense espoused.” In Scott, the defendant was charged with possession of illegal drugs in a correctional facility. The defense requested that a guilty knowledge instruction be given, but the trial court refused to do so. The Fifth District affirmed the trial court, relying in part on the conclusion “that any failure to give the requested instruction was harmless error because Scott’s defense was not based on lack of knowledge of the illicit nature of the substance.” Id. at 168-69. The supreme court concluded that the failure to give the requested instruction was an error and that the error was not harmless. The court stated: “Since the jury is entitled to be instructed on the elements of the offense, it cannot be harmless error to fail to do so especially when the omission is brought to the attention of the trial court by the defendant.” Id. at 170-71. In reaching this conclusion, the Scott court also observed that the defendant’s “argument that he did not possess the drugs and had no knowledge of the drug’s presence ... encompasses the argument that he was unaware of the illicit nature of the substance.” Id. at 171.

Scott makes clear that any defendant who requests an instruction concerning an element of the offense charged against him is entitled to have a proper instruction given to the jury with respect to that element of the crime, even if the defendant’s theory of defense is not predicated on that particular element. Scott also makes clear that the failure to give such a requested instruction is not subject to harmless error analysis. But Scott does not address the question of fundamental error. Since the defendant in Scott had made a request — albeit oral, rather than written — for a guilty knowledge instruction, the court did not reach the issue of fundamental error. Id. at 174 (Harding, J., dissenting).

Scott’s holding that the failure to give a requested instruction on an essential element of a crime is necessarily harmful error simply cannot be read as a holding that the failure to give an unrequested instruction on an essential element of a crime is necessarily fundamental error. The fact that a properly preserved error on a particular issue is deemed harmful does not mean that an unpreserved error on the same issue would be fundamental. Indeed, to conclude that an error is fundamental simply because it is harmful would effectively abolish the general requirement that errors be properly preserved for appellate review. See Reed v. State, 837 So.2d 366, 369, 370 (Fla.2002) (applying Delva’s “distinction regarding fundamental error between a disputed element of a crime and an element of a crime about which there is no dispute,” and stating that while “all fundamental error is harmful error ... not all harmful error is fundamental”).

We are mindful of the apparent tension between the holding of Delva and statements made by the court in Scott. In particular, Scott’s pronouncement that an argument that the defendant was without knowledge of the presence of drugs “encompasses the argument that he was unaware of the illicit nature of the substance,” 808 So.2d at 171, seems inconsistent with the holding of Delva that the defendant’s reliance on the argument that he was unaware of the existence of the drugs did not place the guilty knowledge element at issue. But the resolution of any tension between Scott and Delva is not a task for this court. Any such tension can only be resolved by a holding of the supreme court in a proper case. See Puryear v. State, 810 So.2d 901, 905 (Fla.2002) (stating that the “[supreme court] does not intentionally overrule itself sub silentio,” and that “[wjhere a court encounters an express holding from [the supreme court] on a specific issue and a subsequent contrary dicta statement on the same specific issue, the court is to apply [the supreme court’s] express holding in the former decision until such time as [the supreme court] recedes from the express holding”); see also Lee, 835 So.2d at 1181 (noting that Delva and Scott “may conflict in this regard,” but holding that Delva remains binding precedent); Davis v. State, 839 So.2d 734, 735 (Fla. 4th DCA 2003) (“We do not agree with appellant that there is a conflict between Scott and Delva because in Scott the error was preserved.”).

Delva remains an authoritative and binding holding by the supreme court on the issue of fundamental error in the context of inadequate jury instructions on the elements of the crime charged against a defendant. We thus conclude that Scott is not relevant here but that Delva controls our disposition of this case and compels the conclusion that there was no fundamental error.

District courts have with varying results continued to apply Delva’s distinction between the failure to instruct on an element that is disputed — which constitutes fundamental error — and the failure to instruct on an element that is not disputed — which does not constitute fundamental error. See Starling v. State, 842 So.2d 992, 993 (Fla. 1st DCA 2003) (holding that failure to give guilty knowledge instruction was not fundamental error where “[t]he only issue raised during trial was that [defendant] was not the person who sold the cocaine”); Davis, 839 So.2d at 735 (holding that failure to give guilty knowledge instruction was not fundamental error in case where “the only position taken by the defendant was that he was not the person who sold the cocaine to the informant”); Ozell v. State, 837 So.2d 559, 560 (Fla. 3d DCA 2003) (holding that there was no fundamental error in cocaine sale prosecution where the defense contended both that (1) “the police officers were mistaken in their identification of the defendant” and that (2) there was a reasonable doubt concerning the defendant’s guilt because officers “could not actually see” object which the alleged perpetrator handed to individual who subsequently dropped a ziploc baggie containing cocaine); Lee, 835 So.2d at 1177 (holding that failure to give guilty knowledge instruction was not fundamental error in drug possession case); Johnson v. State, 833 So.2d 252, 253 (Fla. 4th DCA 2002) (holding that failure to give guilty knowledge instruction was fundamental error in case where defendant said “that he had no knowledge of the contents of the vehicle” in which illegal drugs were found, but where “both sides acknowledged that the issues were whether [the defendant] had control of the drugs and whether he had knowledge of the illegality of the substances”); Blunt, 831 So.2d at 771 (holding that failure to give guilty knowledge instruction was fundamental error where defendant “denied knowledge of [the existence of a] pill bottle and the crack cocaine” it contained and prosecutor argued that defendant “knew what the substance was”).

The recent decision in Goodman v. State, 839 So.2d 902 (Fla. 1st DCA 2003), adopts a different view of Scott than the one we have adopted. Goodman cites Scott in support of its holding that failure to give a guilty knowledge instruction was fundamental error in a case where the defendant “denied knowledge that the cannabis was present,” and thus “placed in dispute the essential element of knowledge of the illicit nature of the substance.” Goodman, 839 So.2d at 903. Goodman makes no reference to Delva. But, as we have discussed, Delva makes clear that— for purposes of determining whether there was fundamental error — a defendant’s denial of knowledge of the presence or existence of drugs does not place knowledge of the illicit nature of the drugs in dispute. Our decision here is thus in direct conflict with the decision in Goodman, and we certify the conflict pursuant to article V, section 3(b)(4), Florida Constitution, and Florida Rule of Appellate Procedure 9.030(a)(2)(A)(vi).

IV. CONCLUSION

Because we conclude that the trial court properly denied Garcia’s motion for judgment of acquittal as well as his motion for new trial, we affirm the judgment entered against Garcia.

Affirmed; conflict certified.

. FULMER and CASANUEVA, JJ., Concur.

      . We note the statements in Chicone that "the existing jury instructions are adequate in requiring 'knowledge of the presence of the substance’ ” but that the "trial court should expressly indicate to jurors that guilty knowledge means the defendant must have knowledge of the illicit nature of the substance allegedly possessed” when "specifically requested by a defendant.” 684 So.2d at 745-46. In light of the express holding of Chicone and the fact that a guilty knowledge instruction was requested there, these statements cannot properly be understood as establishing that the failure to give a guilty knowledge instruction will be reversible error only when the instruction has been requested. Chicone does not address the issue of fundamental error.

      . We also note that the reasoning in Blunt appears to be inconsistent with our understanding of Delva.


source: Caselaw Access Project

author: CASANUEVA, Judge.

license: Public Domain

text:
    Larry L. HOLLINGSWORTH, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1581.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    James Marion Moorman, Public Defender, and Andrea Norgard, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Ap-pellee.
   CASANUEVA, Judge.

Larry L. Hollingsworth appeals his upward departure sentence imposed upon remand from a reversal of his original sentence in Hollingsworth v. State, 802 So.2d 1210 (Fla. 2d DCA 2002). We again reverse.

At the reconvened sentencing hearing following the mandate from this court reversing Mr. Hollingsworth’s habitual offender sentence, the State sought an upward departure from the guidelines recommendation. Defense counsel on remand had not represented Mr. Hollings-worth at his original trial and told the court that she was unprepared to argue in mitigation because the prosecutor had told her that he would be seeking merely a guidelines sentence. She was understandably concerned that she had been misled by the State. Because she was unfamiliar with Mr. Hollingsworth’s personal history and the evidence presented at his trial, and to avoid any prejudice to him, she requested a delay in the proceedings to bring before the court Mr. Hollingworth’s trial counsel who could better present the case for mitigation of his sentence.

Before defense counsel’s request was concluded, the trial court interjected and commenced a discussion regarding the current sentence. Without affording defense counsel an opportunity to conclude her argument for a delay, the trial court proceeded to impose an upward departure sentence. At the sentencing hearing’s close, defense counsel objected and again sought a delay, explaining that because she was unaware of the facts of the case she could not argue for mitigation and asking that Mr. Hollingsworth’s original attorney be summoned and allowed to address the issue.

Once it became clear that defense counsel believed the State had misrepresented its position, two courses of conduct were required. First, defense counsel was required, as she did, to seek a continuance to insure Mr. Hollingsworth’s interests were protected, and second, the trial court was required to explore the feasibility of a delay so as to avoid the possibility of legal prejudice occurring in the sentencing hearing. Because the trial court failed to explore the feasibility of a delay so as to afford Mr. Hollingsworth the presence of trial counsel at the sentencing hearing, the trial court abused its discretion.

Reversed and remanded for a new sentencing hearing. The State may seek, as it did before, a departure sentence based on the facts of Appellant’s case as they were at the original sentencing. See State v. Teal, 831 So.2d 1254 (Fla. 2d DCA 2002).

FULMER and THREADGILL, EDWARD F., Senior Judge, concur.

      . On rehearing, the State presents several arguments, including that the sequence of events at the resentencing hearing permits the drawing of several conflicting inferences. We find this argument persuasive. One possible inference is that the prosecutor was foreclosed from correcting any of defense counsel’s misapprehensions by the trial court’s own precipitous action in proceeding with sentencing and not allowing any further interruption. Another possible inference is that the prosecutor stood silent when defense counsel claimed that she had been misled by the State on its sentencing position because defense counsel was correctly stating what had occurred. If defense counsel had been, in fact, affirmatively misled, this would indeed be disturbing. Lack of candor to opposing counsel is no less excusable than lack of candor to the court. See Auerbach v. McKinney, 549 So.2d 1022, 1031 n. 6 (Fla. 3d DCA 1989). On this record, however, we do not conclude that the assistant state attorney exhibited a lack of candor. In any event, Mr. Hollingsworth was prejudiced and resentencing is required.


author: COVINGTON, Judge.

text:
    Barbra A. RICE, Appellant, v. Scott L. CORRY, Appellee.
    No. 2D02-4716.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    M. Katherine Ramers of M. Katherine Ramers, P.A., Dunedin, for Appellant.
    Carl T. Boake and Cathy George of Law Offices of Carl T. Boake, P.A., St. Peters-burg, for Appellee.
   COVINGTON, Judge.

This is an appeal from an order that grants partition of what was the marital home of the parties. On appeal, the former wife alleges that the trial court erred in providing credit to the former husband for his expenditures, while denying her credit for claimed reimbursements. While we agree that the trial court incorrectly awarded credit to the former husband for the down payment on the home, we affirm without discussion the remainder of the judgment.

In May 1994, while they were married, Barbra Rice and Scott Corry bought a home located in St. Petersburg, Florida. The purchase price of the property was $95,400, with a down payment in the amount of $8585. There is no dispute that the down payment consisted of premarital monies earned and provided for entirely by Mr. Corry. In November 1999, Ms. Rice and Mr. Corry were divorced. However, the final judgment of dissolution of marriage did not address the issue of equitable distribution of marital assets. Thus, the parties continued to jointly own their home. While they had originally owned the property as tenants by the entireties, upon their divorce they assumed ownership as tenants in common.

Several years later, Ms. Rice filed a complaint for partition of the property at issue. At trial, Ms. Rice submitted that the property should be sold and the proceeds split evenly. Although Mr. Corry did not object to the partition of the property, he argued that he should be entitled to a credit in the amount of the down payment. In its final, judgment of partition, the trial court found that Mr. Corry had made the down payment from his own account and that those funds had been obtained without any assistance from Ms. Rice. Thus, the court concluded that Mr. Corry should be entitled to a credit of half of the down payment from Ms. Rice’s share of any net proceeds following the sale of the property.

We look to the doctrine of res judi-cata, in analyzing the trial court’s decision, to see if Mr. Corry is precluded from raising his claim. In Davis v. Dieujuste, 496 So.2d 806, 809-10 (Fla.1986), which dealt with this very issue, the court stated:

[Wjhere a trial court has acquired jurisdiction to adjudicate the respective rights and obligations of the parties, a final judgment of dissolution settles all such matters as between the spouses evolving during the marriage, whether or not these matters were introduced in the dissolution proceeding, and acts as a bar to any action thereafter to determine such rights and obligations.

In the case before us, the final judgment of dissolution of marriage did not address the issue of the division of property, including the marital home. Because he did not raise a special equity claim in his original dissolution proceeding, Mr. Corry is barred, pursuant to the doctrine of res judicata, from raising it now. In light of the clear dictates of Davis, we do not find Mr. Corry’s argument persuasive that he is not barred from raising the disposition of the down payment in this action.

Accordingly, the judgment of the trial court is affirmed in part, reversed in part, and remanded for action consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and CANADY, JJ„ Concur. '

      . We note that in a dissolution proceeding, real property held as tenants by the entireties is presumed to be a marital asset subject to equitable distribution. If a spouse seeks a special equity in the real property, he has the burden of overcoming the presumption by showing that he intended no gift of an interest in the property to the other spouse. Robertson v. Robertson, 593 So.2d 491, 494 (Fla.1991).


author: PER CURIAM.

text:
    Horace JONES, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3499.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.

      Michael V. Giordano, Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

In the prior appeal of this matter, Jones v. State, 785 So.2d 561 (Fla. 2d DCA 2001), we reversed an order summarily denying Horace Jones’ motion for postconviction relief as untimely and required an eviden-tiary hearing to determine whether Mr. Jones timely entrusted the motion to prison officials for mailing. We noted that if Mr. Jones could establish this, he was entitled to the rebuttable presumption created in Thompson v. State, 761 So.2d 324 (Fla.2000). Jones, 785 So.2d at 562.

On remand, Mr. Jones presented evidence that he timely entrusted his “motion for postconviction reliefs memorandum of law” in the hands of prison officials for mailing. The State failed to present any evidence to rebut the presumption raised by this evidence. As a result, the circuit court’s order again denying Mr. Jones’ motion as untimely is reversed and this case is remanded for the circuit court to consider the motion on the merits.

Reversed and remanded.

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


author: WHATLEY, Judge.

text:
    Andrew BELTRAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1281.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

Andrew Beltran appeals the sentence he received after he was found to have violated his probation. Beltran was originally charged in two separate cases with robbery with a firearm and robbery with a weapon. He entered a guilty plea to both offenses and was sentenced as a youthful offender to seventy-two months in prison, suspended, and seventy-two months of probation. Thereafter, the trial court found that Beltran had violated his probation and it sentenced him to forty years in prison for the case involving robbery with a firearm and to thirty years in prison for the robbery with a weapon case. We reverse because the trial court erred in sentencing Beltran to a term greater than his suspended sentence after his probation was revoked.

Both of Beltran’s original sentences were true split sentences. See State v. Powell, 703 So.2d 444, 446 (Fla.1997) (holding that a trial court can impose a true split sentence in which the entire period of incarceration is suspended). In a true split sentence, upon a violation of probation, the trial court may not order new incarceration that exceeds the remaining balance of the suspended term. Poore v. State, 531 So.2d 161, 165 (Fla.1988) (holding that after the appellant, who was originally sentenced as a youthful offender, violated his probation, the trial court could not order new incarceration that exceeded the remaining balance of the suspended portion of the original sentence); see also Lawton v. State, 731 So.2d 60 (Fla. 2d DCA 1999); Singleton v. State, 633 So.2d 529 (Fla. 2d DCA 1994); cf. Crews v. State, 779 So.2d 492 (Fla. 2d DCA 2000). Here, the trial court could not sentence Beltran to a term greater than the seventy-two month term that was originally suspended.

Accordingly, we reverse Beltran’s sentences and remand for the trial court to impose a sentence not in excess of seventy-two months in prison in both cases.

Convictions affirmed; sentences reversed and remanded with directions.

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


text:
    Darien PEARSALL, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-238.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Darien Pearsall, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Darien Pearsall’s corrected judgment and sentence is affirmed.

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


text:
    Allen ZOLLMAN a/k/a Allan Ray Denton, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5625.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2003.
   CANADY, Judge.

Allen Zollman appeals the denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.853, seeking post-conviction DNA testing of certain items of evidence. We previously reversed the trial court’s ruling that Zollman’s motion was facially insufficient. Zollman v. State, 820 So.2d 1059 (Fla. 2d DCA 2002). In this appeal, Zollman argues that the trial court erred on remand when it determined, based solely on the State’s unsworn response to his motion, that the evidence that he seeks to have tested no longer exists. Because the trial court could not properly make such a factual determination without affording Zollman the benefit of an evidentiary hearing, we reverse.

This case is very similar to another case recently decided by this court, Borland v. State, 848 So.2d 1288 (Fla. 2d DCA 2003). In Borland, as in the instant case, the movant alleged that items of evidence that could be DNA. tested still existed. Likewise, in both Borland and in the instant case the trial courts denied the motions based upon unsworn responses by the State that indicated that the evidence to be tested did not exist.

This court held in Borland that an un-sworn response or even a sworn affidavit that refutes an allegation made by the movant serves only to create a “factual dispute,” which must be resolved by an evidentiary hearing. Id. at 1290. Consequently, it was error in the instant case for the trial court to accept the State’s response as true without providing Zollman with an opportunity at an evidentiary hearing to address the issue of whether testable evidence still exists. We reverse and remand this case for proceedings consistent with this opinion.

Reversed and remanded.

FULMER and WALLACE, JJ., Concur.


text:
    Everitte L. FORBES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-277.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2003.
    Rehearing Denied Oct. 8, 2003.
    Everitte L. Forbes, in proper person.
    Charles J. Crist, Jr., Attorney General and Jason Helfant, Assistant Attorney General, for appellee.

      Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Koon v. Dugger, 619 So.2d 246, 247 (Fla.1993); Armstrong v. State, 429 So.2d 287 (Fla.1983); see also Roque v. State, 754 So.2d 144 (Fla. 3d DCA), rev. denied 770 So.2d 160 (Fla.2000).


author: WARNER, J.

text:
    C.M., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 4D03-1166.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Richard E. Gitlen, Stuart, for appellant.
    Crystal Y. Yates Hammond, Fort Pierce, for appellee.
   WARNER, J.

A mother appeals the termination of her parental rights. We affirm on all issues, but write to address her contention that this case must be reversed because the trial court failed to appoint a guardian ad litem for the children. We hold that while the court erred in failing to appoint a guardian ad litem, the error was not fundamental as it is raised by the mother who did not object during the proceedings to the court’s failure to appoint the guardian.

The mother’s rights to her four minor children were terminated on various grounds, including her failure to protect them from harm. Her eldest child, a nine-year-old female, had been sexually abused on several occasions by her stepfather. The mother not only failed to protect her from the harm, but appeared to minimize the harm caused to her child. She also failed to protect her remaining children from physical harm inflicted by the stepfather. The mother failed to ensure that her school-age children attended school regularly, and she did not provide them with a clean and healthy living place. The home was in “deplorable” condition. In sum, there was more than enough evidence to support the trial court’s determination that grounds for termination of the mother’s parental rights were present.

The mother claims that the case must nevertheless be reversed because no guardian ad litem was appointed to represent the children’s interest. Section 39.808(2), Florida Statutes (2002), requires the court to appoint a guardian ad litem to represent a child’s best interest in any termination proceeding. To the same effect is Rule 8.510(a)(2)(C), Florida Rules of Juvenile Procedure. In this case, the trial court did not appoint a guardian ad litem. While the parents did not request the appointment of a guardian, in each judicial review report submitted by the Department of Children & Family Services, the box next to the phrase “A GAL needs to be appointed” is checked. There is no indication in the appellate record why this did not occur. As the statute is mandatory, we must determine whether the court’s failure to appoint a guardian, absent an objection, is fundamental error thereby compelling reversal of the termination order.

The guardian ad litem serves as the child’s representative in court to represent the child’s best interest. See § 39.807(2)(a), Fla. Stat. (2002). In doing so, the guardian is required to investigate the allegations of the petition and file a written report, unless excused by the court. See § 39.807(2)(b)l. In the report, the guardian must state the wishes of the child as well as the guardian’s recommendations. See id. Thus, the guardian acts in the best interest of the child and provides the court with another view of the evidence. Because courts cannot investigate cases themselves, they are limited to what evidence comes before them. A guardian can be the court’s independent source of evidence in proceedings involving the child, particularly where there are contested factual matters involved.

While the Legislature has determined that guardians should be appointed for each child, sometimes that is not possible, given the limited amount of paid guardians available and the short supply of voluntary guardians. In several cases, district courts have determined that it was not fundamental error for a trial court to fail to appoint a guardian where there were no available guardians. See, e.g., In re E.F., 639 So.2d 639, 643-45 (Fla. 2d DCA 1994) (holding that failure to appoint guardian ad litem did not rise to level of fundamental error where trial court made good faith attempt to locate and appoint guardian ad litem, but none was available); Fisher v. Dep’t of Health & Rehab. Servs., 674 So.2d 207, 208 (Fla. 5th DCA 1996) (same). However, where there was no evidence that a trial court made any attempt to appoint a guardian, the third district held that this clear violation of the statutory mandate constituted reversible error. See G.S. v. Dep’t of Children & Family Servs., 838 So.2d 1221, 1222 (Fla. 3d DCA 2003). In this case, the record does not reveal that any effort was made to secure a guardian.

A right to have a guardian ad litem is a statutory right, not a constitutional right. It is a right of the child, not of the parent. As natural guardian of the child, a parent may assert the right of the child to have a guardian appointed. However, where there is a question as to whether the parent might be acting in the child’s best interest, a parent may neither waive nor agree to exercise a particular right on the child’s behalf. See Attorney ad Litem for D.K. v. Parents of D.K., 780 So.2d 301, 306 (Fla. 4th DCA 2001). In the case of an appeal of a parental termination, the parents’ wishes and desires may be directly contrary to the best interest of the child.

Because stability for children is so important to both their physical and mental well-being, the Legislature requires that no child remain in foster care longer than one year so that permanent placement may be achieved as soon as possible. See § 39.001(l)(h), Fla. Stat. (2002). At all stages of the proceedings, courts are compelled to expedite proceedings to prevent children from languishing in the foster care system. This includes appeals. See Fla. R.App. P. 9.146(g). Achieving permanent stability in the child’s life is the paramount concern of the judicial process.

A termination of parental rights proceeding involves a two-step process. See Rathbum v. Dep’t of Children & Families, 826 So.2d 521, 523 (Fla. 4th DCA 2002). First, the court must find by clear and convincing evidence that one of the grounds set forth in section 39.806, Florida Statutes (2002), has been proven. See id. Second, the court must determine what outcome is in the manifest best interest of the children. See id.

The mother did not object to the court’s failure to appoint a guardian at either stage of the proceeding, apparently not considering it a deprivation of the children’s rights at that time. After a hearing at which her egregious failure as a parent was determined, the mother now complains that the entire process must be repeated, prolonging the achievement of stability for the children, because of the court’s failure to appoint the guardian. We do not deem the error in this case to be fundamental and capable of being raised by the mother for the first time on appeal.

The Department itself is charged with responding to child abuse reports in a manner that ensures the health and safety of the child. See § 39.001(l)(e), Fla. Stat. (2002). The children’s best interests are being considered by the Department as well as the court. The evidence supports the court’s conclusion in this case that termination was in the manifest best interest of the children. The absence of a guardian under the facts of this case did not irreparably taint the proceedings. Although the trial court erred in failing to appoint a guardian, the error was not preserved and is not a ground for reversing the order terminating the mother’s parental rights.

Affirmed.

MAY, J., and ARAMONY, SUSAN, Associate Judge, concur.


text:
    Lester SMULL, Appellant, v. The TOWN OF JUPITER, a Florida municipal corporation, Appellee.
    No. 4D02-1818.
    District Court of Appeal of Florida, Fourth District.
    Sept. 3, 2003.

      Robert W. Wilkins of Berrocal & Wilkins, P.A., Jupiter, for appellant.
    Thomas J. Baird of Thomas J. Baird, P.A., Palm Beach, for appellee.
   WARNER, J.

This is an appeal from a summary judgment denying appellant’s petition for writ of prohibition in which he sought to prevent the Jupiter Town Council from reconsidering its approval of a permit application. The trial court determined that the Town had authority to reconsider its decision within the time permitted for an appeal from the agency’s original order. Appellant contends that the time for appeal as set forth in the Town Code had run, and thus the council lacked jurisdiction to reconsider its decision. However, we conclude that the time for seeking review is governed by the Rules of Appellate Procedure and runs from the rendition of the order sought to be appealed. As the reconsideration was timely made, we affirm.

Appellant Smull applied to the Town of Jupiter for a building permit to construct a canopy over his marina slip. After the Town’s Planning and Zoning Division rejected the application, Smull appealed the decision to the Town Council. The Council held a quasi-judicial hearing on Smull’s appeal on December 7, 1999. At the hearing, Smull’s counsel informed the Council that Smull obtained approval for the canopy from the condominium association in which he lived and that the association had amended its declaration to accommodate Smull’s canopy. The Council then granted Smull’s appeal and approved the building permit. No written ruling was prepared or filed with the Town Clerk to memorialize the decision.

Subsequently, the condominium association notified the Town that it withdrew its approval of Smull’s canopy and vacated the amendment to the declaration. At a meeting on January 4, 2000, the Town Council voted to reconsider its approval of Smull’s building permit. It did not actually conduct a hearing or render a new decision on that date. Instead, it sought to reschedule a hearing on the issue. Smull then filed a petition for writ of prohibition contending that the Council had no jurisdiction to reconsider its prior ruling. The trial court granted the Town’s motion for summary judgment, concluding that the Town still had jurisdiction over Smull’s appeal when it ordered the rehearing. Thus, the Council had the inherent power to reconsider its previous vote. Smull appeals that ruling.

Smull makes two arguments. First, he contends that the Town has authority to reconsider one of its decisions only during the session in which the decision was made. Second, he contends that even if it could reconsider a decision, the reconsideration must be completed within the time provided to appeal that decision. It is not enough that the Council made a determination to hold a hearing on reconsideration within that time. As the Town Code provides that an appeal must be made within thirty days of the Town’s oral decision, Smull contends that the Town did not act within that period. We reject both contentions.

The general rule holds that “ ‘administrative agencies have inherent or implied power, comparable to that possessed by courts, to rehear or reopen a cause and reconsider its action or determination therein, where the proceeding is in essence a judicial one.’ ” Mills v. Laris Painting Co., 125 So.2d 745, 748 (Fla.1961) (quoting 73 C.J.S. Public Administrative Bodies and Procedure § 156). This power generally must be “exercised before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal.” Id. Smull argues that this rule does not apply to the Town Council because it is not an “administrative agency” under the Administrative Procedure Act. See § 120.52, Fla. Stat. (1999). However, the Administrative Procedure Act does not control the determination. Instead, Florida Rule of Appellate Procedure 9.020(a)(3) provides that “administrative action” includes “quasi-judicial decisions by any administrative body, agency, board or commission not subject to the Administrative Procedure Act.” Because the Town was acting in a quasi-judicial capacity, its decision was essentially a judicial one, and it possessed the inherent power to reconsider its ruling. See Mills, 125 So.2d at 748.

As to his second contention, “Florida court[s] ha[ve] recognized an administrative power to control and modify orders by timely action ‘before an appeal from the original order of the administrative body has been lodged or before such order has become final by lapse of time without a timely appeal.’ ” Vey v. Bradford Union Guidance Clinic, Inc., 399 So.2d 1137, 1138 (Fla. 1st DCA 1981) (quoting Mills, 125 So.2d at 748). Smull argues that the time for appeal as defined in the Town Code had expired before the Council voted to reconsider its decision. The Town Code provides that “[t]he appeal of any decisions of the town council or board shall be taken within 30 days of the oral decision of the town council or board.” While this section may govern an appeal to the Town Council from the Planning Board, it does not control the procedure to invoke the review jurisdiction of the circuit court, which is controlled by the Rules of Appellate Procedure. See Kowch v. Bd. of County Commr’s, 467 So.2d 340, 341 (Fla. 5th DCA 1985). The Rules of Appellate Procedure “supersede all conflicting statutes and ... all conflicting rules of procedure.” Fla. R.App. P. 9.010. Rule 9.190(b)(3) provides that “[rjeview of quasi-judicial decisions of any administrative body, agency, board, or commission not subject to the Administrative Procedure Act shall be commenced by filing a petition for certiorari in accordance with rules 9.100(b) and (c), unless judicial review by-appeal is provided by general law.” According to the committee notes, Rule 9.190(b)(3) “supersedes all local government charters, ordinances, rules and regulations which purport to provide a method of review in conflict herewith.”

Rule 9.100(c) provides that a petition to review quasi-judicial agency action shall be filed within thirty days of rendition of the order. “An order is rendered when a signed, written order is filed with the clerk of the lower tribunal.” Fla. R.App. P. 9.020(h). In this case, there was no writing filed with the Town clerk. Therefore, the time for invoking the review jurisdiction of the circuit court had not started to run when the Town decided to reconsider its ruling. Cfi Kowch, 467 So.2d at 341. Thus, the Town had the authority to reconsider its decision to grant Smull’s building permit.

Affirmed.

STONE and STEVENSON, JJ., concur.


text:
    Shaun BAILEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2620.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.
    Shaun Bailey, Raiford, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Bailey appeals from the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He argues the minimum mandatory portion of his sentence, which he received for trafficking in ecstasy, is illegal, citing Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), rev. dismissed, 821 So.2d 302 (Fla.2002), which held chapter 99-188, Laws of Florida, violated the single subject rule.

We adhere to our prior view that the Legislature cured this constitutional problem by re-enacting the provisions of chapter 99-188 in later legislation, and that this re-enactment applies retroactively. Jack son v. State, 847 So.2d 1038 (Fla. 5th DCA 2003); Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). However, as we have done in like cases, we certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED.

SHARP, W., PETERSON and TORPY, JJ., concur.


text:
    STOP & SHOPPE MART, INC., Petitioner, v. Zahra MEHDI, Respondent.
    No. 5D03-1090.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2003.

      Carol Swanson of the Law Offices of Carol Swanson, Orlando, for Petitioner.
    Thomas E. Mooney of Meyers, Mooney, Stanley & Colvin, Orlando, for Respondent.
   PER CURIAM.

Petitioner, Stop & Shoppe Mart, Inc., (Stop & Shoppe), seeks certiorari review of a decision of the circuit court, while sitting in its appellate capacity, affirming the county court’s final summary judgment in favor of Respondent, Zahra Mehdi.

Mehdi sued Stop & Shoppe in county court for overtime pay plus interest under the Fair Labor Standards Act, 29 U.S.C. § 201, et seq., (hereinafter “the Act.”). Mehdi’s complaint alleged that Stop & Shoppe willfully violated the Act by failing to pay her time and a half for overtime. Stop & Shoppe denied the allegation and raised several affirmative defenses, including expiration of the statute of limitations and good faith compliance with the Act.

Mehdi moved for summary judgment, with a supporting affidavit alleging that Stop & Shoppe had agreed to pay her time and a half for work over 40 hours, but failed to do so from the date of her employment, on December 30, 1998, to the date of her termination, on October 12, 2000. Mehdi attached an exhibit to the affidavit that listed the hours she worked in each week. Stop & Shoppe responded with its own affidavit, which asserted that Mehdi’s conduct was inconsistent with her own affidavit since she had calculated and prepared her own paychecks, yet, had never paid herself any overtime. The county court entered summary judgment for Meh-di, finding that no record evidence existed, showing that Stop & Shoppe’s failure to pay overtime was in good faith or that its violation of the Fair Labor Standards Act was in good faith and predicated on reasonable grounds. The county court then awarded damages to Mehdi for approximately two and a half years of unpaid overtime compensation and liquidated damages, totaling $13,771.82, plus attorney’s fees and costs.

Stop & Shoppe appealed the final judgment of the county court to the circuit court, arguing that Mehdi did not provide proof of willfulness on the part of Stop & Shoppe, as required by the Act, and, in the absence of willfulness, the applicable statute of limitations under the Act is two years. The circuit court rejected Stop & Shoppe’s argument, finding that Stop & Shoppe’s violation was willful and that the county court correctly applied the three-year statute of limitations because Stop & Shoppe had failed to meet its burden of proving a genuine issue of material fact by not filing an opposing affidavit supporting its defense of expiration of the statute of limitations.

Stop & Shoppe contends: (1) that the circuit court failed to apply the correct applicable statute of limitations; (2) that an employee has two years within which to sue for unpaid overtime compensation, unless the employee proves that the employer’s conduct is willful, in which case a three year statute of limitations applies; (3) that Mehdi’s affidavit was not sufficient to meet the burden of proving willfulness on its part. We agree.

The Portal-to-Portal Pay Act provides that an action for unpaid overtime compensation or liquidated damages under the Fair Labor Standards Act must be commenced within two years after the cause of action accrued or the action is forever barred, “except that a cause of action arising out of a willful violation may be commenced within three years after the cause of action accrued.” 29 U.S.C. § 255(a). In McLaughlin v. Richland Shoe Co., 486 U.S. 128, 108 S.Ct. 1677, 100 L.Ed.2d 115 (1988), the United States Supreme Court rejected the prevailing interpretation of the exception which held that willfulness merely requires that the employer knew that the Act was “in the picture,” and held that the employee must prove that the employer either knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute. See also Gilligan v. City of Emporia, Kansas, 986 F.2d 410 (10th Cir. 1993).

The circuit court found that because Mehdi alleged in her affidavit that Stop & Shoppe advised her that she would receive time and a half for overtime, such an allegation establishes Stop & Shoppe’s knowledge of the requirement to pay overtime. The circuit court then concluded, Stop & Shoppe’s violation was willful and in the absence of any counter affidavit, Stop & Shoppe had failed to meet its burden of proving that there was a genuine issue of material fact on the issue of the statute of limitations.

It is well established that the burden of proving the absence of a genuine issue of material fact is on the moving party and until that burden is met, the opposing party is under no obligation to show that any issue exists to be tried. See, e.g., Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966). The movant has the burden of conclusively proving the non-existence of a genuine issue of material fact and that proof must overcome all reasonable infer ences which may be drawn in favor of the opposing party. See, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Dade County Sch. Bd. v. Radio Station WQBA 731 So.2d 638, 643 (Fla.1999); Lawrence v. Pep Boys Manny Moe & Jack, Inc., 842 So.2d 303, 304-305 (Fla. 5th DCA 2003). Furthermore, the moving party must disprove the affirmative defenses or establish that they are insufficient as a matter of law. See, e.g., Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991); OBrien v. Fed. Trust Bank, F.S.B., 727 So.2d 296 (Fla. 5th DCA 1999); Hosp. Correspondence Corp. v. McRae, 682 So.2d 1177 (Fla. 5th DCA 1996); Fla. Dep’t. of Agric, v. Go Bungee, Inc., 678 So.2d 920 (Fla. 5th DCA 1996); Gray v. Union Planters Nat. Bank, 654 So.2d 1288 (Fla. 3d DCA 1995); Elkins v. Barbella, 603 So.2d 726 (Fla. 4th DCA 1992). Where the movant merely denies the affirmative defenses and the affidavit in support of summary judgment only supports the allegations of the complaint and does not address the affirmative defenses, the burden of disproving the affirmative defenses has not been met. See, e.g., Elkins, supra; Campagna v. Dicus, 606 So.2d 1278 (Fla. 2d DCA 1992); Emile v. First Nat'l Bank of Miami, 126 So.2d 305 (Fla. 3d DCA 1961). Here, Mehdi has merely denied the affirmative defenses and has not conclusively proven the non-existence of a genuine issue of material fact; that is, she has not established that the affirmative defense of expiration of the statute of limitations is insufficient as a matter of law.

The test for determining whether an employer’s actions were willful under the Act is set forth in 29 C.F.R. § 578.3(c). An employer’s violation of the Act is deemed willful where the employer knew its conduct was prohibited by the Act or showed reckless disregard for the requirements of the Act. According to 29 C.F.R. § 578.3(c)(2), the employer’s conduct is deemed knowing if the employer has received advice from a responsible official of the Wage and Hour Division to the effect that its conduct was not lawful. An employer’s conduct is considered to be in reckless disregard of the Act if the employer should have inquired further into whether its conduct was in compliance with the Act, and failed to make adequate further inquiry. 29 C.F.R. § 578.3(c)(3).

The simple allegation of “willfulness” in the unsworn complaint was insufficient to overcome the denial in the answer. See, e.g., Feinman v. City of Jacksonville, 356 So.2d 50 (Fla. 1st DCA 1978); Daeda v. Blue Cross & Blue Shield of Florida, Inc., 698 So.2d 617 (Fla. 2d DCA 1997) (only competent evidence may be considered when ruling on summary judgment motion). The circuit court departed from the essential requirements of law when it failed to reverse the county court judgment that ignored Stop & Shoppe’s affirmative defenses. See, e.g., Wendt v. Laske, 760 So.2d 1125 (Fla. 5th DCA 2000), (reversing a summary judgment where affirmative defenses were raised which were not addressed in the trial court’s order); Fla. Dep’t. of Agric, v. Go Bungee, Inc., 678 So.2d at 921, (holding that the trial court’s failure to address affirmative defenses before granting summary judgment was error); see also, Bd. of Trustees of Internal Imp. Trust Fund v. Schindler, 604 So.2d 569 (Fla. 2d DCA 1992) (error for court to grant summary judgment without addressing affirmative defenses). When a movant for summary judgment fails to meet its burden, it is unnecessary for the opposing party to file an affidavit in opposition. See Delandro v. America’s Mortg. Servicing, Inc., 674 So.2d 184 (Fla. 3d DCA 1996). As explained in Emile, 126 So.2d at 306, until some evidentiary matter was presented attacking the affirmative defenses, the opposing party has no obligation to submit affidavits or proof to establish its affirmative defenses. In the instant case, the circuit court failed to apply the correct law when it shifted the burden to Stop & Shoppe.

Stop & Shoppe also raised the affirmative defense of good faith compliance with the Act, but the circuit court once again failed to apply the correct law when it failed to place the burden of proof on Mehdi. The circuit court erroneously affirmed the award of liquidated damages based solely on Mehdi’s allegations in her affidavit while summarily rejecting Stop & Shoppe’s affirmative defense of good faith.

The Portal-to-Portal Pay Act, 29 U.S.C. § 260, provides that in an action for overtime compensation or liquidated damages under the Act, the employer must show to the satisfaction of the court that the act or omission was in good faith and that the employer had reasonable grounds for believing that his act or omission was not a violation of the Act. If the employer meets that burden, the court, in its discretion, may deny liquidated damages or award an amount smaller than the maximum allowed. See also, Health Enterpris es of Florida v. Barlow, 512 So.2d 297 (Fla. 5th DCA 1987). It is the employer’s burden to establish by the preponderance of evidence at trial that it is entitled to the good faith exemption. See, e.g., Dybach v. State of Fla. Dept. of Corrections, 942 F.2d 1562, 1566 n. 5 (11th Cir.1991); Joiner v. City of Macon, 814 F.2d 1537, 1539 (11th Cir.1987). However, prior to trial, the burden is on the movant seeking summary judgment to disprove the affirmative defenses raised by the opposing party.

Dybach explains that good faith presents a mixed question of fact and law and has both subjective and objective components. Dybach, 942 F.2d at 1562. At trial, an employer would have the burden of showing that it had an honest intention to ascertain what the Act required and acted accordingly. See also Cahill v. City of New Brunswick, 99 F.Supp.2d 464 (D.N.J., 2000); Nash v. Resources, Inc., 982 F.Supp. 1427 (D.Or.1997). However, the movant seeking summary judgment must disprove such a possibility. Although Mehdi alleged in her affidavit that Stop & Shoppe agreed to pay her overtime, that allegation is insufficient to conclusively refute Stop & Shoppe’s affirmative defenses on summary judgment. Further, there is no evidence that Stop & Shoppe failed to make inquiry or was advised by the Wage and Hour Division that its conduct was unlawful.

We grant the petition for writ of certio-rari, quash the circuit court’s affirmance of the county court’s award of summary judgment in favor of Mehdi and remand to the circuit court for further proceedings.

Petition GRANTED, Order QUASHED.

PETERSON, ORFINGER and TORPY, JJ., concur.


author: SILBERMAN, Judge.

text:
    Timothy J. McCANN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3572.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.

      Laura Griffin, Ponte Vedra Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Timothy McCann appeals orders entered in trial court case numbers 95-679 and 95-680 denying his motions and supplemental motions for postconviction relief and his motions to correct illegal sentence. We reverse in part because the trial court erred in summarily denying two of McCann’s ineffective assistance of counsel claims and one of his double jeopardy claims. We affirm without discussion the denial of all other claims for relief.

PROCEDURAL BACKGROUND

In case number 95-679, following a jury trial, McCann was convicted of kidnapping, first-degree burglary, three counts of sexual battery, and grand theft of a motor vehicle. He appealed his judgments and sentences, and they were affirmed without opinion. McCann v. State, 718 So.2d 184 (Fla. 2d DCA 1998) (unpublished table decision).

In case number 95-680, McCann pleaded no contest to burglary, sexual battery with a deadly weapon, grand theft, and robbery with a deadly weapon. He appealed his judgments and sentences, and they were affirmed. McCann v. State, 720 So.2d 275 (Fla. 2d DCA 1998).

In each case, McCann timely filed pro se motions for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising numerous claims. The trial court summarily denied some of the claims and granted an evidentiary hearing as to others. At the hearing, evidence was presented as to several of the claims. However, certain issues were not addressed, and McCann’s counsel advised the trial court that she was filing supplemental motions in both cases under rule 3.850 and under Florida Rule of Criminal Procedure 3.800(a). The trial court indicated that another hearing would be scheduled to address the unresolved claims.

McCann then filed motions in both cases, seeking relief under rule 3.800(a) and supplementing the rule 3.850 claims. In case number 95-680, the motions were filed shortly before the next scheduled evi-dentiary hearing; as a result, the trial court continued the hearing. Approximately two months later, and without another hearing, the trial court entered an order denying all claims.

STANDARD OF REVIEW

Florida Rule of Appellate Procedure 9.141(b)(2)(D) governs our review of the trial court’s summary denial of McCann’s claims under rules 3.800 and 3.850. Rule 9.141(b)(2)(D) states that “unless the record shows conclusively that the appellant is entitled to no relief, the order shall be reversed and the cause remanded for an evidentiary hearing or other appropriate relief.” Concerning rule 3.850 claims that are denied following an eviden-tiary hearing, appellate courts must give deference to the trial court’s factual findings. McLin v. State, 827 So.2d 948, 954 n. 4 (Fla.2002).

FAILURE TO ADEQUATELY INVESTIGATE AND PREPARE DEFENSE

In ground four of his rule 3.850 motion in case number 95 679, McCann asserted that his trial counsel was ineffective for failing to adequately investigate and prepare a meaningful defense. McCann claimed that counsel should have established that the victim consented to have sex with him and that she brought the rape charges because McCann refused to give her drugs on the night of the incident. McCann also claimed that he told his trial counsel about two encounters after the incident. In one, the victim’s boyfriend allegedly approached McCann at a party and accused him of stealing money, drugs, and the victim’s vehicle. The second encounter allegedly involved McCann’s arrest at a Ft. Myers bar for underage drinking. McCann claimed that the victim worked at the bar and called the police to report him for stealing her vehicle.

McCann argued that his trial counsel could have used the information to establish that the victim lied when she claimed that she did not know McCann and that the information would have established that the victim was bringing false charges against McCann. The trial court summarily denied relief on this ground, indicating that the claim was alleging “ineffective assistance of counsel for failing to elicit from the Defendant testimony regarding encounters with a third party and regarding a prior juvenile arrest of the Defendant for an alcohol charge.” The trial court stated that it would not question counsel’s decision to refrain from inquiring of McCann about his juvenile arrest record and thus opening the door to further inquiries.

Although there may have been strategic reasons why McCann’s counsel proceeded as he did, the evaluation of such strategic decisions generally requires resolution through an evidentiary hearing. See Comfort v. State, 597 So.2d 944, 945 (Fla. 2d DCA 1992); Guisasola v. State, 667 So.2d 248, 249 (Fla. 1st DCA 1995). Because the trial court did not fully address this claim and it was not refuted by attachments to the trial court’s order, we reverse and remand for further proceedings.

FAILURE TO ASSERT VOLUNTARY INTOXICATION DEFENSE

In ground two of McCann’s rule 3.850 motion filed in case number 95-680, he alleged that his trial counsel was ineffective for failing to assert voluntary intoxication as a defense to the charges. McCann claimed that he accepted the plea because counsel failed to prepare and use the voluntary intoxication defense even though McCann told counsel and the police that he was intoxicated during the commission of the offenses. Additionally, he claimed that had counsel pursued the defense, he would not have been forced into accepting the plea.

Although the trial court found that the claim stated a basis to grant an evidentiary hearing, it ultimately denied the claim finding that (1) McCann failed to present evidence or elected not to present evidence regarding the claim at the evidentiary hearing, and (2) the defense was waived because intoxication was not a defense to the principal charge of sexual battery and McCann elected to enter a negotiated plea to the remaining charges and received concurrent sentences.

Voluntary intoxication is not a defense to sexual battery. Straitwell v. State, 834 So.2d 918, 919 (Fla. 2d DCA 2003). However, it is a defense to the other crimes with which McCann was charged. See Carter v. State, 801 So.2d 113, 114 (Fla. 2d DCA 2001). A claim that counsel failed to explore a voluntary intoxication defense states a facially sufficient ineffective assistance claim even when the defendant’s conviction resulted from a plea. See Craig v. State, 769 So.2d 1087, 1088 (Fla. 2d DCA 2000). Moreover, “whether counsel was ineffective for failing to discuss and explore with a defendant the possibility of utilizing a voluntary intoxication defense is appropriately determined through an evidentiary hearing.” Straitwell, 834 So.2d at 920-21.

Concerning the trial court’s finding that McCann failed to present evidence to support this claim at the one evidentiary hearing that was conducted, the transcript of the hearing does not support that finding. The transcript reflects that several other evidentiary issues would be addressed first and, if additional time remained, an evi-dentiary hearing would be conducted as to the intoxication defense issue. Prior to the conclusion of the hearing, the trial court confirmed that an additional eviden-tiary hearing would be scheduled. Although a second hearing was scheduled, it was continued by the trial court. Another evidentiary hearing was not held, and McCann did not have the opportunity to present evidence on the issue before the trial court denied the claim.

Because the trial court erred in denying this claim without an evidentiary hearing and the record does not otherwise conclusively refute the claim, we reverse and remand for additional proceedings.

DOUBLE JEOPARDY

Under ground three of his rule 3.850 motion in ease number 95-680, McCann alleged in part that his convictions for both grand theft and robbery violated double jeopardy principles. He argued that he could not be convicted of both crimes when they were merely aggravated forms of the same underlying offense of theft and they arose out of a single episode. The trial court summarily denied McCann’s claim, concluding that double jeopardy claims are not appropriate for postconviction relief. The trial court was incorrect because double jeopardy claims may be raised in a rule 3.850 proceeding. See Tidwell v. State, 790 So.2d 1184, 1184 (Fla. 2d DCA 2001).

McCann again raised this claim in his supplemental motion. He noted that in the opinion issued following his direct appeal, this court stated that it could not resolve the double jeopardy issue based upon the appellate record and, therefore, the decision to affirm was without prejudice to McCann filing a timely rule 3.850 motion. McCann, 720 So.2d at 275. In its final order denying the claim the trial court stated, “A review of the case and the plea reveals to the Court that the Defendant was properly convicted of all the charges and that there was no double jeopardy violation.”

McCann’s convictions for both grand theft and robbery may violate double jeopardy principles. See Hayes v. State, 803 So.2d 695, 704 (Fla.2001); Sirmons v. State, 634 So.2d 153, 154 (Fla.1994). The double jeopardy analysis requires that courts “look to whether there was a separation of time, place, or circumstances” between the crimes because “those factors are objective criteria utilized to determine whether there are distinct and independent criminal acts or whether there is one continuous criminal act with a single criminal intent.” Hayes, 803 So.2d at 704.

Because the trial court summarily denied the motion without attaching to its order record documents conclusively refuting the claim, we reverse.

DISPOSITION

For the forgoing reasons, the orders denying McCann’s motions are affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion. On remand, the trial court may again summarily deny relief if it can attach portions of the record that conclusively refute the claims. To the extent that any claim is not conclusively refuted by the record, the trial court must conduct an evidentiary hearing on that claim.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and CANADY, JJ„ Concur.

      . We note that section 775.051, Florida Statutes (1999), abolished the voluntary intoxication defense in Florida effective October 1, 1999. Ch. 99-174, § 2, at 968, Laws of Fla. This statute was not in effect at the time of the subject crimes and is not applicable in this case.


author: NORTHCUTT, Judge.

text:
    Timothy McCLANAHAN, as Personal Representative of the Estate of Kenneth Albury, Gail Anderson, Deborah Griffin, Sidney Giloy, Steven Sundquist, and Arthur Jeffrey Thompson, Appellants, v. STATE of Florida, Department of Juvenile Justice, and Department of Management Services, Appellees.
    No. 2D01-5769.
    District Court of Appeal of Florida, Second District.
    Sept. 5, 2003.

      George L. Hayes, III and Carla L. Turner-Hahn of Hayes & Martohue, P.A., St. Petersburg, for Appellants.
    Eric S. Zumvelt and Scot E. Samis of Abbey, Adams, Byelick, Kiernan, Mueller & Lancaster, L.L.P., St. Petersburg, for Appellees.
   NORTHCUTT, Judge.

Several current and former employees of the Florida Department of Juvenile Justice contended they were made ill by the unsafe and unhealthy air quality in the building where they worked, a juvenile detention center located in Clearwater. They sued DJJ, the Florida Department of Management Services, and others. In this appeal the employees challenge a summary judgment granted to DJJ and DMS founded on workers’ compensation immunity. We affirm.

The employees’ second amended complaint alleged that the building was constructed in the early 1990s. It was owned by DJJ and was designed and built under the supervision of DMS. The complaint alleged that both were negligent in overseeing the design and construction of the building such that after it was occupied it was contaminated by excessive levels of moisture, mildew, and mold. One count of the complaint sought damages stemming from respiratory injuries suffered by the employees, and another count sought to recover for the wrongful death of a deceased employee.

The state defendants filed affirmative defenses and motions for summary judgment asserting they were immune from suit under the exclusivity provision of Florida’s workers’ compensation law, section 440.11(1), Florida Statutes (1997). The employees filed replies to the affirmative defenses in which they disputed the agencies’ workers’ compensation immunity on the ground that the agencies had knowingly allowed the building’s unhealthy air quality to persist for several years and had thus engaged in conduct that was substantially certain to result in injury or death to the employees working in the building. As mentioned, the circuit court entered summary judgment for DJJ and DMS.

The employees challenge the judgment on three bases. For one, they maintain the court erred by granting judgment to DMS because DMS did not employ them and therefore did not enjoy workers’ compensation immunity. But section 440.02(14), Florida Statutes (1997), defines “employer” to include “the state and all political subdivisions thereof.” In other words, for purposes of the workers’ compensation law the state, not a particular agency, is deemed to be the employer. State v. Special Disability Trust Fund, 795 So.2d 1105 (Fla. 1st DCA 2001); Dep’t of Corr. v. Koch, 582 So.2d 5 (Fla.. 1st DCA 1991). If workers’ compensation immunity defeated the employees’ claims, it did so as to both DJJ and DMS.

The employees also maintain that the circuit court should have permitted them to amend their complaint to allege facts sufficient to defeat the agencies’ workers’ compensation immunity under the intentional tort exception as expounded in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000). It is true that the employees’ complaint alleged only negligence on the parts of DJJ and DMS, which was insufficient to avoid workers’ compensation immunity. They alleged the intentional tort exception only in their replies to the agencies’ affirmative defenses. At the hearing on the motions for summary judgment, the circuit court expressed its concern about the state of the pleadings. The employees’ counsel urged that the intentional tort exception was adequately raised in the manner described, but asked the court for leave to amend if it felt otherwise. The court went on to treat the matter as if the intentional tort exception had been properly pleaded. It granted the summary judgment, concluding that the evidence of record would not support a finding that the agencies had engaged in conduct that would defeat their workers’ compensation immunity. Given that the employees contended that they did not need to amend their pleadings to assert the intentional tort exception, and given that the circuit court decided the case as if the issue had been properly raised, the employees suffered no harm from their failure to amend.

Finally, the employees dispute the circuit court’s conclusion that the intentional tort exception did not apply to this case. In Turner, the Florida Supreme Court reaffirmed the existence of an intentional tort exception to workers’ compensation immunity under which an employer may be held liable in tort if it has engaged in conduct that was intended to or substantially certain to result in an employee’s injury or death. The court disavowed suggestions in earlier decisions that the “substantial certainty of injury” standard for avoiding workers’ compensation immunity requires a showing that the employer’s conduct created a “virtual certainty” of injury. See Turner, 754 So.2d at 687 n. 4; see also EAC USA Inc. v. Kawa, 805 So.2d 1 (Fla. 2d DCA 2001).

The Turner court also held that when applying the “substantial certainty of injury” standard, the employer’s conduct must be evaluated under an objective test, as opposed to a subjective one. In other words, the plaintiff need not show that the employer actually knew that its conduct was substantially certain to cause an injury. Rather, the employer may be held liable if it “should have known ... that the conduct complained of was ‘substantially certain to result in injury or death.’ ” Id. at 688-89. Therefore, “[ujnder an objective test for the substantial certainty standard, an analysis of the circumstances in a case would be required to determine whether a reasonable person would understand that the employer’s conduct was ‘substantially certain’ to result in injury or death to the employee.” Turner, 754 So.2d at 688.

The Turner court observed that proving the intentional tort exception requires a showing that the employer engaged in conduct that is at least worse than “gross negligence.” Turner, 754 So.2d at 687 n. 4. In this case we have carefully reviewed the evidence of record. Considered in the light most favorable to the employees, with all conflicts resolved and inferences drawn in their favor, the evidence could prove that the agencies were made aware of problems with the air quality in the building, that they did little to remedy the situation other than to clean and replace air conditioning filters, and that they were less than candid with the employees about the extent of the problems or the risks they posed. Thus, the evidence might support a conclusion that the agencies negligently exposed the employees to increased risk. But, we agree with the circuit court that, under all the circumstances of this case as reflected in the summary judgment record, the agencies’ acts or omissions were not substantially certain to result in injury or death. See Turner, 754 So.2d at 688.

Affirmed.

FULMER and CASANUEVA, JJ., concur.

      . One of the employees died in the course of the proceedings below, and the personal representative of his estate was substituted as a party.