author: PALMER, J.

text:
    Desmond SWILLEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3315.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      James B. Gibson, Public Defender and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Desmond Swilley (defendant) appeals his judgments and sentences claiming that two of his five convictions violate his right to be free from double jeopardy. Concluding that his convictions on the charges of resisting arrest with violence and resisting arrest without violence violate the double jeopardy clause, we vacate the conviction and sentence on the misdemeanor charge of resisting arrest without violence and remand for resentencing. We affirm as to all other matters.

The defendant was charged with committing five separate crimes arising out of his attempt to avoid arrest for participating in a controlled drug transaction. The charges brought consisted of aggravated assault with a deadly weapon on a law enforcement officer, aggravated battery with a deadly weapon on a law enforcement officer, resisting an officer with violence, aggravated fleeing or attempting to elude a law enforcement officer causing injury or damage, and resisting an officer without violence. He was convicted on all counts and now contends that three double jeopardy violations occurred:

1. His convictions for resisting an officer with violence and for resisting an officer without violence violate the double jeopardy clause;
2. His convictions for resisting arrest with violence and aggravated assault on a law enforcement officer violate the double jeopardy clause; and,
3. His convictions for resisting arrest with violence and aggravated battery on a law enforcement officer violate the double jeopardy clause.

We agree as to the defendant’s first contention, but disagree as to the others.

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17 (Fla.2001)(quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). To that end, section 775.021(4)(b) of the Florida Statutes (1999) mandates the imposition of convictions and sentences for each criminal offense committed in the course of one criminal episode, but at the same time the statute sets forth three exceptions to this mandate. The statute provides that the imposition of multiple convictions and sentences is not authorized for crimes committed in the course of one criminal episode in cases where one of the following three circumstances exist:

(1) the offenses require identical elements of proof,
(2) the offenses are degrees of the same offense as provided by statute, or
(3) the lesser offense has elements which are subsumed by the greater offense.

Thus, the issue for determination here is whether any of the defendant’s crimes fall within any of these three categories. If so, then the imposition of separate convictions and sentences is prohibited. If not, then no double jeopardy violation exists.

The defendant first argues that his conviction on count V for resisting arrest without violence must be struck on the basis of double jeopardy because his conviction on count III for resisting with violence occurred during the course of the same criminal episode.

In count V, the defendant was charged with resisting an officer without violence based upon evidence indicating he failed to comply with an officer’s instructions to get on the ground. In count III, the defendant was charged with resisting police officers with violence based upon evidence indicating that he placed his car in reverse and then drove it towards one officer and then into a vehicle occupied by another officer in an attempt to avoid arrest.

In Madison v. State, 777 So.2d 1175 (Fla. 5th DCA 2001), our court explained that a defendant can be convicted of both resisting arrest with violence and resisting arrest without violence for conduct committed during the course of one continuous criminal episode only if those convictions address two separate acts of resisting, and that a continuous resistance to the ongoing attempt to effect a defendant’s arrest constitutes a single instance of resisting an officer. Accord Jones v. State, 764 So.2d 659 (Fla. 1st DCA 2000). Separate convictions are prohibited because the lesser offense of resisting without violence has elements which are subsumed by the greater offense of resisting with violence. Since both of the defendant’s convictions were based upon his ongoing attempts to avoid arrest they violate the defendant’s double jeopardy rights. Accordingly, the defendant’s conviction and sentence on the misdemeanor charge of resisting without violence must be reversed. See Goodman v. State, 801 So.2d 1012 (Fla. 4th DCA 2001)(holding that defendant could not be convicted of both resisting arrest with violence and resisting arrest without violence arising out of continuous single episode involving the defendant’s attempt to avoid one arresting officer, and thus reversal of conviction of resisting arrest without violence was required).

The defendant next argues that his conviction on count III for resisting arrest with violence must be reversed'because his conviction on count I for aggravated assault on a law enforcement officer was based upon the same underlying criminal actions. We disagree.

Count I of the information charged the defendant with committing the crime of aggravated assault based upon the evidence indicating that he drove his car in an officer’s direction. As noted above, count III charged the defendant with resisting arrest with violence based upon those same facts. However, applying the three-part statutory analysis, there is no statutory prohibition against imposing dual convictions based upon the instant facts, regardless of the fact that they were committed in the course of one criminal episode, because the offenses of aggravated assault and resisting arrest with violence do not require identical elements of proof. The crime of assault is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” See § 784.011, Fla. Stat. (1999). An aggravated assault is defined as follows:

784.021. Aggravated assault
(1) An “aggravated assault” is an assault:
(a) With a deadly weapon without intent to kill....

§ 784.021(l)(a) Fla. Stat. (1999). In contrast, section 843.01 of the Florida Statutes (1999) defines the crime of resisting an officer with violence as follows:

843.01. Resisting officer with violence to his or her person
Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Furthermore, it is apparent that the two offenses are not degrees of the same offense as provided by statute, nor does either offense have elements which are subsumed by the other. As such, imposition of separate convictions for these crimes is authorized under Florida law. See § 775.021, Fla. Stat. (1999).

Lastly, the defendant argues that his conviction on count III for resisting arrest with violence must be reversed because his conviction on count II of aggravated battery on a law enforcement officer was based upon the same underlying criminal actions. Both counts were based upon evidence indicating that the defendant used his car to back into a cab which was occupied by a police officer. We again disagree.

The Florida Statutes define the crime of battery as occurring when a person “actually and intentionally touches or strikes another person against the will of the other” or “intentionally causes bodily harm to another person.” See § 784.03, Fla. Stat. (1999). The crime of aggravated battery is defined as follows:

784.045. Aggravated battery
(l)(a) A person commits aggravated battery who, in committing battery:
2. Uses a deadly weapon.

§ 784.045, Fla. Stat. (1999). Review of these statutory elements in relation to the elements set forth in the resisting with violence statute reveals that no double jeopardy violation exists. To that end, it is clear that (1) the offenses do not require identical elements of proof, (2) the offenses are not degrees of the same offense as provided by statute, and (3) neither offense has elements which are subsumed by the other.

AFFIRMED in part, REVERSED in part, REMANDED.

THOMPSON, C.J., and PETERSON, J., concur.

      . See U.S. Const, amend. V; art. 1 § 9, Fla. Const.

      . See §§ 784.021(l)(a), 784.07(2)(c), 775.0823(10), 784.045, 784.07, 775.0823, 843.01, 316.1935(4), 316.061, 316.027, 843.02, Fla. Stat. (1999).

      . Section 843.02 of the Florida Statutes (1999) defines the crime of resisting an officer without violence, in pertinent, as follows:
      843.02. Resisting officer without violence to his or her person
      Whoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

      . Section 843.01 of the Florida Statutes (1999) defines the crime of resisting an officer with violence, in pertinent, part as follows:
      843.01. Resisting officer with violence to his or her person
      Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, ors. 775.084.


source: Caselaw Access Project

author: THOMPSON, C.J.

license: Public Domain

text:
    DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, Appellant, v. Dawna MEGAN-NEAVE, Appellee.
    No. 5D02-75.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Charles M. Fahlbusch, Ft. Lauderdale, for Appellant.
    No Appearance for Appellee.
   THOMPSON, C.J.

The Department of Highway Safety and Motor Vehicles (“department”) appeals the trial court’s order granting Dawna Megan-Neave’s motion for summary judgment, thus revoking the seizure of Neave’s motorcycle pursuant to the Florida Contraband and Forfeiture Act (“Forfeiture Act”). We reverse.

Neave was the passenger and Raymond E. Potter was the driver of a motorcycle owned by Neave that was stopped for traveling in excess of the speed limit. Because Potter had blood-shot eyes and smelled as if he had been drinking alcohol, the officer conducted a field sobriety test, which indicated that Potter was under the influence of alcohol. Potter was arrested for DUI, and it was discovered that Potter’s license was revoked based on a DUI conviction. The department seized the motorcycle pursuant to section 322.34, Florida Statutes, which provides for the forfeiture of a vehicle driven by a person under the influence of alcohol whose license has been suspended for a prior DUI conviction. See § 932.701(2)(a)9., Fla. Stat. (2001).

Neave filed a motion for summary judgment. For the purposes of the hearing, Neave conceded that she had known that Potter was driving her motorcycle under the influence of alcohol, but claimed to have been unaware that his license was suspended. Neave argued that under section 322.34(9)(a), the motorcycle could not be forfeited unless she knew not only that Potter was too impaired to drive, but also that Potter had a suspended license. Neave contended that her ignorance of the status of Potter’s driver’s license made her an innocent owner under section 932.703(6)(A), Florida Statutes, which provides that property may not be forfeited unless the seizing agency establishes that the owner knew or should have known after reasonable inquiry that the property was being used in criminal activity.

The trial court agreed with Neave that the motorcycle was not subject to forfeiture because the department did not make a showing that Neave had reason to know that Potter’s license had been suspended for a previous DUI. On appeal, the department argues that the Forfeiture Act imposes liability on an owner who knew or should have known that the property would be used for criminal purposes. The department reasons that since Neave knew that the driver was under the influence, and thus that her property was being used in the course of criminal activity, she is not an innocent owner.

The question in this case is not whether Neave’s motorcycle was subject to forfeiture; it clearly was under the Forfeiture Act and section 322.34(9)(a) because it was driven by a “person” who was driving under the influence and whose driver’s license was suspended for a prior DUI. The question is whether Neave was an “innocent owner.” An innocent owner is one who did not have reason to know that the owner’s property would be “employed in criminal activity.” Under section 932.703(6)(a), the department was required to show beyond a preponderance of the evidence that Neave knew or had reason to know that her motorcycle was being used in criminal activity. Since Neave admitted as much, the department made the required showing.

What the court actually ruled was that the department had to prove that Neave knew that particular criminal activity would subject the motorcycle to seizure, but that is not a requirement under the Forfeiture Act. In In re Forfeiture of a 1981 Oldsmobile, 593 So.2d 1087 (Fla. 1st DCA 1992), the owner’s husband was arrested for possession of drugs, and the car he was driving was seized pursuant to the Forfeiture Act. Id. at 1088. The owner claimed to have been out of town, that she was unaware of her husband’s use of the vehicle, and that she had no idea that he would be using the vehicle to engage in any type of criminal activity. Id. However, there was testimony that the owner admitted to the sheriffs attorney’s secretary that the husband needed the vehicle to transport their children. Id. at 1089. The trial court found that the owner was aware that her husband’s driver’s license had been suspended and ruled that any use of the vehicle by the husband would constitute a criminal act. Id. at 1088.

On appeal, the court affirmed the judgment of forfeiture, holding that the evidence supported the trial court’s finding that the owner should have known the husband would use the vehicle in a criminal venture, even if she was not aware that drugs would be involved. Id. at 1090. The owner’s vehicle was subject to forfeiture because the husband used it in connection with illicit drugs. The owner was not an “innocent owner” because she was on notice that the husband, who had a criminal record, would use the vehicle in connection with criminal activity in general, and because “she was aware that her husband was driving the Oldsmobile with a suspended driver’s license, in blatant disregard of the law.” Id.

In the instant case, Neave conceded, at least for the purposes of her motion for summary judgment, that she knew that Potter was driving under the influence, and thus, she knew that he was driving “in blatant disregard of the law.” Like the owner in In re Forfeiture of a 1981 Oldsmobile, Neave did not know the additional facts that placed the vehicle at risk of forfeiture: the owner in In re Forfeiture of a 1981 Oldsmobile did not have reason to know that her vehicle would be used in connection with illicit drugs, and Neave presumably did not know that Potter’s license was suspended. Under the Forfeiture Act, the owner is “innocent” if the owner does not know or have reason to know that the property will be used in criminal activity. Because the department showed that Neave knew the vehicle was being used in criminal activity, the trial court erred in entering summary judgment for Neave. Accordingly, we reverse the judgment and remand for further proceedings.

REVERSED and REMANDED.

SHARP, W., and SAWAYA, JJ., concur.

      . §§ 932.701-932.707, Fla. Stat.

      . Section 322.34(9)(a), Florida Statutes provides:
      A motor vehicle that is driven by a person under the influence of alcohol or drugs in violation of s. 316.193 is subject to seizure and forfeiture under ss. 932.701-932.707 and is subject to liens for recovering, towing, or storage under s. 713.78 if, at the time of the offense, the person’s driver's license is suspended, revoked, or canceled as a result of a prior conviction for driving under the influence.

      . Section 932.703(6)(a), Florida Statutes, states:
      "[Pjroperty may not be forfeited under the Florida Contraband Forfeiture Act unless the seizing agency establishes by a preponderance of the evidence that the owner either knew, or should have known after reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity.”


author: MONACO, J.

text:
    Michael F. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1546.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.
    James B. Gibson, Public Defender, and James R. Wulchak, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

The appellant, Michael F. Smith, appeals from the denial of his motion to withdraw plea, arguing that he was entitled to conflict-free counsel to represent him during the hearing on his motion. We agree and reverse.

Smith pled no contest to a violation of probation, and was sentenced to sixty months incarceration. He later filed a motion to withdraw plea alleging that “he did not have enough time to discuss his options and alternatives with counsel.”

At the motion hearing Smith was represented by the attorney who had previously represented him at his violation of probation hearing. Smith’s attorney suggested to the court that it was Smith who wanted to file the motion. The attorney then offered his opinion concerning conversations between himself and Smith as follows:

Mr. Smith and I had several conversations on the telephone about his case. We also spoke here in open court ... the lab result presented ... in my opinion, would have been hearsay and the state would have had to bring in a custodian of records to verify the tests.
This was all brought to Mr. Smith’s attention. Mr. Smith was advised he would have the right to contest the results at a hearing. I also advised him if we should have a hearing, it could result in additional time above what the state had originally asked for.
I felt that Mr. Smith was fully advised as to what he was doing. I felt Mr. Smith understood the options he had available to him and the possible outcomes of his choices. All I can do is let Mr. Smith explain to you what he felt was the problem at that time.

Smith testified to the trial court that he did not understand the severity of his case or the harshness of his sentence. Without any prompting, the attorney interrupted Smith and told the court that he had explained everything concerning the plea to Smith.

The trial court denied Smith’s motion to withdraw plea, ruling that Smith knew the possible penalties based on a prior plea offer that had been made, and that Smith was simply unhappy with his sentence. The court went further, however, saying that it also based its decision on the commentary of Smith’s attorney, stating, “your own lawyer basically told us he explained everything to you at that point.” Smith brings this appeal asserting that he is entitled to a new hearing with conflict-free counsel.

It is well established that a criminal defendant facing incarceration has the right to counsel at each critical stage of the proceedings. See Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); Jones v. State, 827 So.2d 1086 (Fla. 1st DCA 2002); Padgett v. State, 743 So.2d 70, 72 (Fla. 4th DCA 1999). Once a conflict of interest arises between the defendant and his counsel, the preferred course to follow is for the “trial court to appoint or allow the defendant to retain independent counsel solely for the purpose of representation on the motion to withdraw the plea.” See Zeiszler v. State, 765 So.2d 128 (Fla. 1st DCA 2000); Holifield v. State, 717 So.2d 69 (Fla. 1st DCA 1998), rev. denied, 729 So.2d 394 (Fla.1999). That is to say, when a conflict between a defendant and his counsel appears in the record, the trial court is obligated to appoint conflict-free counsel to represent the defendant. See Jones v. State, 827 So.2d 1086, 1087 (Fla. 1st DCA 2002); Karg v. State, 706 So.2d 124, 125 (Fla. 1st DCA 1998).

Here, the comments of trial counsel were patently in conflict with the position of his client. The comments suggest that counsel believed he fully advised Smith of the consequences of the plea, and perhaps he did. Nonetheless, once it became clear that Smith and his attorney had taken adversarial positions concerning the advice Smith had received concerning his plea, Smith should have been afforded the opportunity to have the benefit of conflict-free counsel to present his position. As he was denied that opportunity, we reverse the order denying Smith’s motion to withdraw plea, and remand with instructions to conduct a new hearing, insuring that Smith is offered conflict-free counsel to represent him at the hearing.

REVERSED and REMANDED.

THOMPSON, C.J. and SAWAYA, J. concur.

      . At the probation hearing, the trial court asked Smith if he was under the influence of any drugs or medications that may affect his thinking. Smith answered yes, however, the trial judge did not inquire any further.


text:
    Mark Alan DUDDLES, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3876.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      James B. Gibson, Public Defender, and Rebecca M. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   THOMPSON, C.J.

Mark Alan Duddles appeals his convictions for two counts of sexual battery on a victim less than twelve years of age and contends that the trial court erred by denying his motion to suppress a statement that he made to an investigator. We affirm.

Duddles was charged by information on 15 February 2001 with two counts of sexual battery on a victim less than twelve years of age and one count of lewd and lascivious molestation of a victim less than twelve years of age. At the suppression hearing, Detective Jimmy Post testified that he was assigned to investigate allegations of a sexual battery on a minor, and Duddles was the suspect. Post testified that after he spoke with the victim and her mother, he went to Duddles’s residence at 3:50 a.m. Post told Duddles that the victim had made some allegations, and he wanted Duddles’s side of the story. Duddles invited Post into his home. Post testified that he went to Duddles’s house at 3:50 a.m. because the victim and her mother lived with Duddles, and he did not want to alert Duddles prior to speaking to him that the police had been contacted. Post admitted that Duddles was not required to speak with him that night, but he did not convey that to Duddles.

During the taped conversation, Duddles admitted to rubbing the victim in her genital area and admitted that he was possibly naked under the covers. Duddles agreed that Post told him that he would not be arrested that night. Duddles agreed again that Post had done nothing to scare or threaten him. At the end of the taped statement, Duddles stated that Post had not threatened him, scared him, or promised him anything. Duddles did not testify at the suppression hearing.

For the following reasons, the trial court found that the confession was not coerced because:

a. The officer was dressed in plain clothes.
b. The investigating officer was invited into the Defendant’s home by the defendant.
c. The officer did not restrict the movement of the Defendant or make it so he was not free to leave.
d. Miranda warnings were not necessary, as the Defendant was not in custody.
e. The investigative techniques used by the officer did not create a coercive atmosphere.
f. The officer remained calmed and relaxed throughout the interview.
g. The defendant acknowledged at the conclusion of the interview that he did not feel that he was in custody.
h. Throughout the interview, the Defendant appeared alert and coherent and never requested the interview to cease.

Duddles contends that when Post came to his home for a statement, he did the best that he could to accommodate the officer, and under the circumstances, the statement was not voluntary and Miranda warnings should have been given.

Miranda warnings are required only when an individual is undergoing actual custodial interrogation by the police. State v. Rodriguez, 785 So.2d 759, 761 (Fla. 3d DCA 2001). Under Miranda, custodial interrogation does not occur unless an officer initiates the questioning of an individual who has been taken into custody or is otherwise deprived of his freedom of action in any significant way. See Rhode Island v. Innis, 446 U.S. 291, 298, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980).

In determining whether a suspect is in custody, the appellate court must conduct a de novo review. See Connor v. State, 803 So.2d 598 (Fla.2001). It must be determined whether under the totality of the circumstances, a reasonable person in the suspect’s position would feel a restraint of his or her freedom of movement in that one would not feel free to leave or terminate an encounter with the police. See Voorhees v. State, 699 So.2d 602 (Fla.1997). Factors to be considered are:

1) the manner in which the police summon the suspect for questioning;
2) the purpose, place, and manner of the interrogation;
3) the extent to which the suspect is confronted with evidence of his or her guilt;
4) whether the suspect is informed that he or she is free to leave the place of questioning.

Ramirez v. State, 739 So.2d 568, 574 (Fla.1999).

Regarding the first and second factors, 3:50 a.m. is an unusual time to pay a visit, but Post testified on cross examination that he arrived at that time because the victim and her mother lived with Duddles, and he did not want to alert Duddles in advance that the police had been contacted. During the encounter, Post was dressed in' plain clothes, explained that the victim had made allegations, and asked Duddles for his side of the story. Duddles invited Post into his home, and they sat at a table in the living room. Post testified that he did not handcuff Duddles during the interrogation. Also, Post informed Duddles that he would not be arrested that night.

State and federal authorities support the contention that usually when one invites an officer into one’s home for questioning, the person is not considered to be in custody during the questioning. See Patterson v. State, 659 So.2d 1014 (Ala.Crim.App.1995) (the fact that the interrogation occurred inside the accused’s house is a factor tending to indicate that the interview was noncustodial); see also Com. v. Busch, 713 A.2d 97, 101 (Pa.Super.Ct.1998)(defendant was not in custody where the defendant invited two police officers into his home, the three sat in the living room, the defendant was not reluctant to answer questions, and there was no claim that he was intimidated by the po lice); U.S.A. ex rel. Johnson v. Lane, 573 F.Supp. 967 (N.D.Ill.1983)(the record contained ample evidence that defendant was not in custody when questioned in the familiar surroundings of his home, rather than a police station); but see U.S. v. Griffin, 922 F.2d 1343 (8th Cir.1990) (defendant was in custody where officers interrogated him in his home, was not informed that he was not under arrest or free to request that the officers leave, was told that he was to stay in the officer’s view at all times, and was escorted throughout his house).

As for the third factor, although Post informed Duddles that the victim had made allegations against him, he asked Duddles for his side of the story, and the record does not indicate that there was coercion, intimidation, or trickery. The record supports the trial court’s finding that Post remained relaxed and calm during the interview. See Rodriguez, 785 So.2d at 761.

Regarding the fourth factor, as previously discussed, a person who invites officers into his home for an interview usually is not considered to be in custody. Further, Post told Duddles that he would not be arrested that night. Post was dressed in plain clothes and did not display a weapon the night of the interrogation. Also, the trial court noted in its order denying the motion to suppress that Post remained calm and relaxed during the interview. See Johnson, 573 F.Supp. at 969 (defendant was not in custody where he was never told that he was not free to leave, nor were there any words implying that he could not leave, only two officers were present and did not display weapons, and trial court found that officers were non-aggressive and polite throughout their investigation); see also Loredo v. State, 836 So.2d 1103 (Fla. 2d DCA 2003) (defendant was not in custody at the time of his interrogation at the police station where defendant was told that he was not under arrest, could leave at any time, and was given directions for exiting the station).

Duddles cites Ramirez v. State, 739 So.2d 568 (Fla.1999), but Ramirez is distinguishable. In Ramirez, the police used “trickery” to obtain a confession from Ramirez after learning from the co-defendant that Ramirez robbed and murdered the victim. Id. at 576. Without reading Ramirez his Miranda rights, the police confronted Ramirez at his home and informed Ramirez that they had knowledge of a conversation between Ramirez and the co-defendant. Id. at 572. Ramirez then turned over the stolen items, and the deputy asked Ramirez if he would be willing to come to the sheriffs office, where he was later interrogated. Id. Finally, after Ramirez admitted to committing the crimes, a detective informed Ramirez of his Miranda rights. Id. In the instant case, Post did not use trickery to secure a confession from Duddles. Post explained that Duddles would not be arrested that evening, and he stated that he wanted Duddles’s side of the story. Duddles invited Post into his home and stated that he was not threatened or coerced by Post.

The trial court’s order on the motion to suppress was supported by competent, substantial evidence, and is affirmed.

AFFIRMED.

SAWAYA and TORPY, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Debbie CARTER, etc., et al., Appellant, v. CAPRI VENTURES, INC., etc., et al., Appellee.
    No. 5D02-691.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Daniel M. Cavanaugh, Naples, for Appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Ft. Lauderdale, for Appellee.
   PALMER, J.

In this wrongful death action, Debbie Carter appeals the final summary judgment entered by the trial court in favor of Capri Ventures, Inc. (“hotel”). Concluding that the trial court correctly determined that the hotel had not created a foreseeable zone of risk, we affirm.

Debbie Carter, individually and in her capacity as the personal representative of the estate of her deceased minor son, Kyle, instituted this wrongful death lawsuit against Capri Ventures. The complaint explained that Carter and her son were guests registered at one of three hotels owned by Capri Ventures and located in Daytona Beach. Two of the hotels are located on the east side of A1A and the third is located on the west side of the road. At the time of the accident, Carter and her son were staying at the hotel located on the west side of A1A. The child was killed after he was struck by a car while walking east across A1A, apparently to utilize the pool in one of the hotel’s affiliated properties and also to visit the beach.

The complaint alleged that the hotel knew or should have known that its guests regularly crossed A1A and that, by failing to warn hotel guests of the dangers associated with the road or to create a safe means of access to and from its facilities to and from the beach side of A1A, the hotel breached its duty of care to its guests.

The hotel filed a motion for summary judgment alleging, among other things, that no legal duty existed between the hotel and the child relating to the cause of his death. The court agreed and entered summary judgment in favor of the hotel, stating:

There is absolutely no indication in the record that any conduct of the defendants “created” any risk or zone of risk in this case. Whether motel guests were permitted to use the amenities of all three motels or not, the risk at issue is a public roadway namely, State Road A1A. This risk or zone of risk was certainly not created by any of the defendants. No landowner creates the common risk associated with the public roadways that lead to a landowner’s property simply by owning land that is adjacent to a public roadway or by inviting people to come onto his property where public roadways are used as public access. This court holds that Florida law does not support expanding the duty of a landowner to include responsibility for the safe travel of its guests while its guests travel over public roadways.

Carter challenges this ruling first arguing that reversal is required because the trial court’s written final summary judgment order fails to accurately reflect the court’s oral ruling. We disagree. Review of the record demonstrates that the written summary judgment order is consistent with the oral ruling issued by the trial court at the conclusion of the summary judgment hearing.

Carter next contends that the trial court erred as a matter of law in concluding that no legal duty existed in this case. She argues that the hotel created a foreseeable zone of risk by inviting its guests to enjoy the amenities at each of its three affiliated hotels which were located on both sides of AIA. We again disagree.

The parties agreed that the relevant facts were undisputed and, therefore, the issue for the trial court was whether, based on the undisputed facts, Florida law supported the hotel’s claim that it owed no duty of care to Carter’s son.

The Florida Supreme Court has held that in order for a plaintiff to bring a common law action for negligence in Florida, the minimal threshold legal requirement for opening the courthouse doors is a finding that the defendant’s alleged actions created a foreseeable zone of risk of harming others. Kitchen v. K-Mart Corp., 697 So.2d 1200, 1202 (Fla.1997)(citing to McCain v. Florida Power Corp., 593 So.2d 500, 502 (Fla.1992)). In entering summary judgment in the hotel’s favor, the trial court concluded that no such zone had been created by the hotel vis a vis the roadway which separated its hotel properties and upon which the fatal accident occurred. We affirm that ruling because a property owner is generally liable only for injuries which occur on its premises, and the limited exceptions to that general rule which have been recognized by our courts and cited by Carter are factually distinguishable from, and thus not legally controlling over the instant case.

For example, in Gross v. Sand and Sea Homeowners Ass’n, Inc., 756 So.2d 1073 (Fla. 4th DCA 2000), the Fourth District reversed a final order dismissing a personal injury suit against a mobile home park homeowners’ association. The dismissal was based upon the trial court’s conclusion that, as a matter of law, the association did not owe a legal duty of care to the plaintiff who was a resident of the park. In reversing, the Fourth District concluded that dismissal of the complaint was premature because the complaint had alleged that the homeowners’ association possessed a duty of care to the residents of the park to maintain the premises in a safe condition and to use ordinary care in adopting rules regulating the use of the property, and that this allegation of a legal duty was sufficient to proceed past the motion to dismiss stage. However, the court did not address the propriety of entering a summary judgment on the issue.

Similarly, in Gunlock v. Gill Hotels Co., 622 So.2d 163 (Fla. 4th DCA 1993), a wrongful death case, the Fourth District again reviewed a dismissal order, not a summary judgment order. The complaint in that case explained that the decedent was a guest at the defendant hotel, and that the hotel had an east and west wing separated by highway AIA. The pleadings further alleged that the decedent entered the hotel bar but the hotel bartender only offered to serve him coffee because he was intoxicated. The decedent left the bar without drinking the coffee and exited the hotel lobby. Although the hotel had a customary policy to escort intoxicated hotel guests across highway A1A, the policy was not observed in this case and, while attempting to cross the highway, the decedent was struck by a vehicle and killed. Based on these allegations, the trial court dismissed the complaint. However, upon review, the Fourth District reversed, concluding that the allegations were sufficient to state a cause of action. The ruling in Gunlock is distinguishable from the case at hand because, in addition to the fact that Gunlock was a motion to dismiss case and not a summary judgment case, no evidence is contained in the instant record that the hotel had any customary policy which could have created any legal obligation vis a vis its hotel guests in relation to crossing A1A. As the Supreme Court noted in Union Park Memorial Chapel v. Hutt, 670 So.2d 64 (Fla.1996): “[0]ne who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care.” Id. at 66-67. No such duty was assumed, and therefore subject to breach, in this case.

Lastly, Carter argues that this case is controlled by the case of Johnson v. Howard Mark Productions, Inc., 608 So.2d 937 (Fla. 2d DCA 1992), in which the Second District reversed a summary judgment entered in favor of a night club owner in a lawsuit seeking damages for injuries sustained by its invitee. The summary judgment was based upon the trial court’s conclusion that the night club owed no duty of care to the invitee. In that ease, the complaint alleged that the invitee was struck and killed while crossing a highway to patronize the night club. The complaint maintained that the accident was caused, at least in part, by the fact that the night club had woefully insufficient parking and thus patrons like the decedent were required to park on the opposite side of the highway and walk across the highway in the dark in order to gain access to the club. The complaint asserted that the inadequate parking was a dangerous condition of which the night club knew or should have known. In reversing the summary judgment order, the Second District emphasized the fact that the record was devoid of any evidence describing the accident or the condition of the premises and thus the court was constrained to take the facts as alleged in the complaint as being true. As such, the court determined that a duty of care had been established based on the facts that the club’s inadequate parking required the club’s patrons to cross the highway and that the club was on notice of same. Here, no allegation was pled in Carter’s complaint, nor was any evidence presented by Carter, that the hotel created and was on notice of any dangerous condition relating to its guests crossing A1A.

AFFIRMED.

THOMPSON, C.J. and PETERSON, J., concur.

      . Having found that the cases cited by Carter are distinguishable, we need not reach the issue of whether the decisions reached by the other district courts of appeal should be adopted as the law of this district.


author: PLEUS, J.

text:
    Jason M. EBERSOL, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D02-3132.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Jason M. Ebersol, Winter Springs, pro se.
    John D. Maher, Deputy General Counsel, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PLEUS, J.

Ebersol’s appeal of an adverse ruling by the appeals referee on his claim for unemployment compensation benefits was summarily dismissed by the Unemployment Appeals Commission (Commission) as being untimely. The Commission urges that since Ebersol elected to file his appeal by facsimile, he assumed all risks associated with the failure of the notice to be timely docketed with the Commission. We believe Ebersol raises two points which require remand for an evidentiary hearing.

First, Ebersol claims that he never received written notice of the adverse decision of the appeals referee. Section 443.151(4)(b)3, Florida Statutes, provides that an appeals referee’s decision “shall be final unless, within 20 days after the date of mailing of notice thereof to the party’s last known address or, in the absence of such mailing, within 20 days after the delivery of such notice, further review is initiated....” Ebersol’s contention calls into question whether this 20 day appeal period was in fact triggered. See Holmes v. City of West Palm Beach, 627 So.2d 52 (Fla. 4th DCA 1993). The record contains no indication that Ebersol was afforded an opportunity by the Commission to show cause why his appeal should not be dismissed.

In accordance with section 120.68(7), Florida Statutes, and decisional law, the Commission must afford Ebersol an evi-dentiary hearing on the issue of whether and when a copy of the appeals referee’s decision was mailed to him so as to formally trigger the running of the 20 day appeals period.

Second, the Commission rules expressly permit a party to file a request for an appeal by facsimile. While as a general proposition, a party such as Eber-sol is deemed to assume the risk of transmission difficulties associated with faxes, the record here contains a fax history report reflecting that Ebersol did indeed fax a document to the agency on June 28, 2002, or well within 20 days of the date of the appeals referee’s decision. While the Commission did not docket any request for appeal within this 20 day period, the record is completely silent as to whether this was because the fax was not received by the Commission or because the Commission received the fax but was remiss in not docketing the request. To simply accept the Commission’s position that Ebersol bears the risk in either circumstance would excuse the agency from developing careful procedures for docketing faxed requests for appeals which it receives. We are more inclined to embrace a salutary rule that where a claimant makes an evi-dentiary showing that he did, in fact, timely and correctly direct a fax of a request to appeal to the Commission, an issue of fact is created as to whether the Commission received the request for timely docketing. On remand, the Commission shall apply these principles.

REVERSED AND REMANDED.

GRIFFIN and TORPY, JJ., concur.

      . See Florida Administrative Code Rules 60 BB-6.003(3) and 60 BB-7.006; U.A.C. See also Florida Administrative Code Rule 28-101.001(2)(e)2.

      . The mailing date on the decision, by itself, is insufficient to rebut Ebersol’s claim. Landrum v. James Rummer Timber Harvesting, Inc., 645 So.2d 577 (Fla. 2d DCA 1994); Robinson v. Morrison, Inc., 501 So.2d 1323 (Fla. 4th DCA 1986).

      . See Ferrero v. Unemployment Appeals Commission, 829 So.2d 993 (Fla. 2d DCA 2002); Landrum; Holmes.

      . See Florida Administrative Code Rule 60 BB-6.003(3).


author: PALMER, J. GRIFFIN, J.,

text:
    Jack CARUSO, et al., Appellants, v. SUPER VISION INTERNATIONAL, INC. and Brent Kingstone, Appellees.
    No. 5D02-3029.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2003.

      Philip J. Snyderburn and William M. Rishoi of Snyderburn, Rishoi & Swann, Orlando, for Appellant.
    John E. Fisher and Joseph Tamborello, Jr., of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellee Super Vision International, Inc.
    Brian D. DeGailler of Broussard, Cullen & DeGailler and Richard C. Swank of Litchford & Christopher, Orlando, for Ap-pellee Brent Kingstone.
   PALMER, J.

Appellants, who were defendants below in this breach of contract action, appeal the trial court’s non-final orders finding them in civil contempt and striking their pleading as a sanction therefor. However, the orders are not appealable under rule 9.130 of the Florida Rules of Appellate Procedure. Therefore, we must deem the appellants’ notice of appeal to be a petition for writ of certiorari. See Fla. R.App. P. 9.040(c). Having done so, we deny the petition since any error occasioned by the trial court’s orders is correctable on direct appeal. See Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000) (explaining that in order to be granted certiorari relief, appellant must establish that the trial court departed from the essential requirements of the law, the departure resulted in irreparable harm, and the harm is not correctable on direct appeal).

Appellants were found in civil contempt for failing to abide by the terms of a temporary injunction entered against them. More specifically, the trial court had enjoined the appellants from removing various materials from Florida pending disposition of the lawsuit but they violated this injunction by removing said material to China. The trial court found such violation to constitute contempt of court and subsequently struck appellants’ responsive pleadings as a sanction therefor.

Appellants challenge both the contempt order and the sanction order, asserting that they are appealable, non-final orders pursuant to Florida Rule of Appellate Procedure 9.130. Specifically, they maintain that the orders either determine the right to immediate possession of property or granted or modified an injunction. We disagree. The record establishes that the trial court’s orders are not appealable under rule 9.130. See Davis v. State, 758 So.2d 724 (Fla. 2d DCA 2000) (explaining that prejudgment civil contempt orders are more properly reviewed by certiorari); see also Sears v. Sears, 617 So.2d 807 (Fla. 1st DCA 1993); Stewart v. Mussoline, 487 So.2d 96 (Fla. 3d DCA 1986). Compare Alves v. Barnett Mortgage Co., 688 So.2d 459 (Fla. 4th DCA 1997).

As for certiorari review, we conclude that such relief is not warranted under the facts of this ease because the issues raised in this proceeding are reviewable on direct appeal. Accordingly, the petition for cer-tiorari is denied, without a determination on the merits, since any error can be corrected on direct appeal.

PETITION DENIED.

TORPY, J., concurs.

GRIFFIN, J., concurs specially, with opinion.

GRIFFIN, J.,

concurring specially.

This case is complicated by the fact that the trial court, based on the stricken pleadings, entered what purports to be a “final judgment” during the pendency of this proceeding. I believe we should decide this case on its merits. It is my view that the trial court acted within its discretion and there was no departure from the essential requirements of law. Accordingly, I agree the petition should be denied.


author: PER CURIAM.

text:
    Walker DAVIS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4586.
    District Court of Appeal of Florida, First District.
    April 28, 2003.
    Walker Davis, Jr., petitioner, pro se.
    Charlie Crist, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered on or about May 15, 2002, denying petitioner’s motion for post-conviction relief in Okaloosa County Circuit Court case number 96-735-CF, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D).

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Channella WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2044.
    District Court of Appeal of Florida, First District.
    April 28, 2003.
    Nancy P. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of probation and imposition of judgment and sentence. However, because the written order of revocation of probation improperly included findings that the appellant violated the conditions listed in the February 5 and February 25, 2002, violation of probation affidavits, we remand for the trial court to enter an order that reflects only the violations outlined in the affidavit of probation filed on November 6, 2001. State v. Hall, 641 So.2d 403, 405 (Fla.1994).

AFFIRMED.

KAHN, VAN NORTWICK, and BROWNING, JJ„ concur.


text:
    Charles Christopher HAYES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3339.
    District Court of Appeal of Florida, First District.
    April 28, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred and affirm the revocation of the appellant’s probation, and imposition of judgment and sentence. However, the trial court technically erred by entering a written Order of Revocation of Probation in which the trial court found that the appellant had violated four conditions of probation, when the appellant only admitted to violating two counts and the state chose not to pursue the remaining counts. Accordingly, we remand for correction of the written order of revocation. See Curl v. State, 823 So.2d 214 (Fla. 1st DCA 2002). The appellant need not be present.

AFFIRMED.

KAHN, VAN NORTWICK, and BROWNING, JJ„ concur.


author: SALCINES, Judge.

text:
    Michael Anthony AIELLO, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3283.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   SALCINES, Judge.

Michael Anthony Aiello challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because Aiello failed to present a facially sufficient claim, we affirm the trial court’s order.

In his motion, Aiello alleged that the three-year mandatory minimum term of imprisonment for trafficking in hydroco-done/oxycodone was illegally imposed. In Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002), this court held that chapter 99-188, Laws of Florida, which provided for the imposition of the mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. But see State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188. The re-enactment was retroactive to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

If Aiello’s offense occurred within the Taylor window, he is entitled to be resen-tenced under the valid law in effect at the time of the offense. See Green, 839 So.2d 748. However, Aiello failed to present a facially sufficient claim for relief under rule 3.800(a) since he failed to affirmatively allege that he committed the offense on a date within the Taylor window. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003). We therefore affirm the order of the trial court without prejudice to any right Aiello might have to file a facially sufficient claim. See id.

Affirmed.

CASANUEVA and SILBERMAN, JJ., Concur.

      . Aiello was represented by counsel in the filing of his motion. The motion alleged only:
      1. That a mandatory [minimum] of 3 years for 4-14 grams of Hydrocodone/Oxycodone is no longer a legal sentence.
      2. It is requested that the mandatory minimum language be deleted from the Judgement and Sentence.


author: KELLY, Judge.

text:
    Ernest Lee HARDY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3320.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   KELLY, Judge.

Ernest Lee Hardy challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for resentencing.

In his motion, Hardy alleged that he pleaded to trafficking in more than 28 but less than 200 grams of cocaine. He further alleged that the three-year mandatory minimum term of imprisonment imposed by the trial court pursuant to section 893.135(l)(b)(l)(a), Florida Statutes (2000), is illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying Hardy’s motion, the trial court found: “As of April 29, 2002, the Florida Legislature has cured the single subject rule violation by re-enacting the provisions originally contained in Chapter 99-188. The re-enactment was retroactive to July 1, 1999." However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Hardy committed the offense of trafficking in cocaine in November 2000, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, Hardy has presented a facially sufficient claim. See Green, 839 So.2d 748. We reverse the order of the trial court and remand with instructions to the trial court to resentence Hardy under the 1997 version of section 893.135(l)(b)(l)(a). See id. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., Concur.


text:
    FLORIDA POWER & LIGHT COMPANY, and FPL Finbernet, LLC., Petitioners, v. FIRST SOUTH UTILITY CONSTRUCTION SERVICES, INC., Respondent.
    No. 3D03-304.
    District Court of Appeal of Florida, Third District.
    April 30, 2003.
    Rehearing Denied May 28, 2003.
    Ruden, McClosky, Smith, Schuster & Russell, and John H. Pelzer and Kimberly S. Rogers, Miami; Cheryl Kempf, Miami, for petitioners.
    Broad and Cassel and Gary E. Lehman and Meredith A. Frank, Miami, for respondent.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

In the exercise of the court’s discretion, the petition for writ of certiorari is denied.

-GREEN and WELLS, JJ., concur.

SCHWARTZ, C.J., dissents.


author: STONE, J.

text:
    S. C., a minor child, Petitioner, v. GUARDIAN AD LITEM, et al., Respondents.
    No. 4D02-3414.
    District Court of Appeal of Florida, Fourth District.
    April 30, 2003.
    Rehearing Denied June 6, 2003.

      Maxine Williams of Legal Aid Society of Palm Beach County, Inc., West Palm Beach, for petitioner.

      Tracy S. Carlin of Mills & Carlin, P.A., Jacksonville, and Karusha Y. Sharpe, Tallahassee, for Respondent-Guardian Ad Li-tem.
    Jeffrey Dana Gillen, West Palm Beach for Respondent Department of Children and Families.
    Bernard Perlmutter, Pamela Airmar, Marissel Planes and Andrew Boese, Coral Gables, for amicus curiae-University of Miami School of Law Children & Youth Law Clinic.
    Mary K. Wimsett, Gainesville, for ami-cus curiae-State of Florida, Guardian Ad Litem Programs.
   STONE, J.

We treat this non-final appeal as a petition for certiorari, grant the petition, and quash the trial court’s order allowing a guardian ad litem unrestricted access to the records of the minor/petitioner’s treating therapist.

Pursuant to section 39.402, Florida Statutes, the Department of Children and Family Services (“the department”) filed a shelter petition for Petitioner, alleging several reported acts of abuse and alleging that Petitioner’s parents were unable to control or provide a safe environment for Petitioner, age fourteen. Petitioner had also exhibited serious behavior constituting a threat to herself and others. At the time of the shelter petition, she had been Baker Acted several times during the prior three years.

A guardian ad litem was appointed to represent Petitioner. A standard form order was used for the appointment of the guardian ad litem that states:

Upon presentation of this Order to any agency, hospital, organization, school, person, or office including the Clerk of this Court, Department of Children and Families, human services agencies and/or child-caring agencies, public and private health facilities, medical and mental health professionals, including doctors, nurses, pediatricians, psychologists, psychiatrists, counselors, and staff, and law enforcement agencies, the individual designated in this cause and the Circuit Director or program staff are hereby authorized to inspect and copy any records relating to the above-named child(ren) without consent of said ehild(ren), parents of said ehild(ren) or caregivers of said child(ren), regardless of the confidentiality or classification status of said records or information.

The department filed its petition for adjudication of dependency and the trial court appointed an attorney ad litem to represent Petitioner. Petitioner’s father consented to the dependency petition and Petitioner was adjudicated dependent as to her father and placed in the custody of her maternal grandmother.

In preparation for the mother’s trial, the department filed a motion for release of the child’s records, requesting the therapy records from Petitioner’s former therapist and psychologist, Dr. Maura Malloy. The department attached a copy of a release of information for those records signed by Petitioner’s mother.

Petitioner objected to the release of information on grounds of the psychotherapist/patient privilege, pursuant to section 90.503, Florida Statutes. The trial court initially ordered that all records involving abuse, neglect, or abandonment be released to the parties. However, the trial court, on rehearing, recognized that Petitioner had not waived her privilege under section 90.503 and concluded that it would review the records in camera and release only those records related to Petitioner’s parents’ statements in therapy, but not any of Petitioner’s communications during joint sessions with her parents. The trial court also agreed to release the dates Petitioner attended therapy. This order, however, did not restrict access by the guardian ad litem to the confidential records.

To prevent such access by the guardian ad litem, Petitioner moved to enjoin the guardian ad litem program, and any individual guardian ad litem assigned, from obtaining any confidential or privileged records pursuant to the initial appointment order without a formal petition and hearing as provided in section 61.403(2), Florida Statutes. Petitioner also sought to modify the form appointment order to exclude from automatic production those records, described in section 61.403(2), for which a petition and hearing would have been required in a chapter 61 dissolution proceeding.

Thereafter, because the department and the mother indicated an intent to call Dr. Malloy as a witness, Petitioner filed a motion for protective order and /or a motion in limine, requesting that the trial court enjoin any party from calling Dr. Malloy as a witness. After a hearing, the trial court concluded that it would permit Dr. Malloy to testify at the dependency trial on a strictly circumscribed inquiry, limiting the testimony to: (1) whether the mother made therapy appointments for Petitioner; (2) the dates of the appointments; (3) whether Petitioner attended the appointments; (4) whether the mother was cooperative with the therapy schedule; and (5) whether the mother was a suitable custodian for Petitioner. Further, Dr. Malloy was directed not to rely on privileged information during her testimony. The court, however, also entered an order denying Petitioner’s motion for injunctive relief with respect to access by the guardian ad litem.

We review these orders as if a petition for writ of certiorari was filed challenging the denial of a protective order to bar the guardian ad litem from obtaining confidential records based solely on the authority provided by the form order. See Viveiros v. Cooper, 832 So.2d 868 (Fla. 4th DCA 2002); Cohen v. Cohen, 813 So.2d 1060 (Fla. 4th DCA 2002); Daly v. Daly, 624 So.2d 304 (Fla. 4th DCA 1993). We conclude that the order, rendered August 9, 2002, is a departure from the essential requirements of law and caused material injury, leaving no adequate remedy on appeal.

Petitioner has made a prima fa-cie showing of irreparable harm because she has asserted the psychotherapist/patient privilege as to the confidential communications which are being sought. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999). As to whether the trial court departed from the essential requirements of law in denying injunctive or protective order relief, we need not rely upon Petitioner’s primary contention that, as a matter of law, section 61.403, Florida Statutes, applies to chapter 39 proceedings, and, if it does, that the guardian ad litem was required by that statute to petition the trial court for an order. Nor need we decide, here, the circumstances under which a court may invade the privilege asserted by a competent, mature minor. We, nevertheless, conclude that Petitioner, at a minimum, was entitled to notice and an opportunity to be heard, before any such invasion may be permitted.

The psychotherapist/patient privilege, contained in section 90.503(2), Florida Statutes, provides:

A patient has a privilege to refuse to disclose, and to prevent any other person from disclosing, confidential communications or records made for the purpose of diagnosis or treatment of the patient’s mental or emotional condition, including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist. This privilege includes any diagnosis made, and advice given, by the psychotherapist in the course of that relationship.

§ 90.503(2), Fla. Stat. (2001).

Petitioner has a right to assert this privilege. This court has recognized that a minor child has a privilege in the confidentiality of communications with a psychotherapist. See Attorney Ad Litem for D.K. v. Parents of D.K., 780 So.2d 301, 307 (Fla. 4th DCA 2001).

In D.K., it was recognized that the trial court should consider the age and maturity of the child in deciding whether to appoint an attorney ad litem to assert the child’s position. See also Kasdaglis v. Dep't of Health, 827 So.2d 328 (Fla. 4th DCA 2002)(holding that social worker is under no obligation to furnish privileged therapy records of a sixteen year old to the child’s mother without the child’s consent). There is no evidence in this record that Petitioner is not old enough, mature enough, and competent enough to seek relief through a court appointed attorney rather than cede control of her privileged privacy interest to a guardian ad litem.

We note that the trial court, here, has recognized that Petitioner had not waived her privilege or placed her mental health in issue, nor has the privilege been abrogated by section 39.204, Florida Statutes.

No Florida authority, however, directly addresses the issue of whether a dependent child may assert a psychotherapist/patient privilege to deny guardian ad litem access to therapeutic records. Both chapter 39 and the Florida Rules of Juvenile Procedure are silent as to the specific power and authority of a guardian ad litem to access records of a minor. Petitioner argues that the juvenile division is a subdivision of the family division and the doctrine of in pari materia compels the conclusion that section 61.403 should apply to a guardian ad litem in dependency proceedings. Section 61.403(2) provides:

The guardian ad litem, through counsel, may petition the court for an order directed to a specified person, agency, or organization, including, but not limited to, hospitals, medical doctors, dentists, psychologists, and psychiatrists, which order directs that the guardian ad litem be allowed to inspect and copy any records and documents which relate to the minor child or to the child’s parents or other custodial persons or household members with whom the child resides. Such order shall be obtained only after notice to all parties and hearing thereon.

§ 61.403(2), Fla. Stat. (2001).

The department and the guardian ad litem correctly recognize, however, that chapter 61 governs only dissolution of marriage, support, and custody proceedings, and does not apply to a dependency proceeding. In its amicus curiae brief, the guardian ad litem program agrees with the position of the guardian ad litem that advocating for the best interests of children who have been abused, abandoned, or neglected and working with the court and other parties to ensure that the safety and welfare of children are protected is qualitatively different than making a best interests recommendation in a dissolution proceeding between two parents without such dependency issues. The department also asserts that, in O’Connor v. Department of Health & Rehabilitative Services, 680 So.2d 1137 (Fla. 3d DCA 1996), the Third District Court of Appeal affirmed this principle in holding that chapter 61 provisions do not affect proceedings under chapter 39. We do not rely on that opinion, however, as we deem it inapposite to the facts before us.

The department and the guardian ad litem further point out that had the legislature intended to provide petition and hearing requirements in juvenile dependency proceedings, it would have done so, noting that chapter 39 is silent regarding a minor’s right to notice and hearing for the production of confidential records and argue that section 39.4085(21), Florida Statutes, authorizes a guardian ad litem to review any and all records of a dependent child whenever the guardian ad litem deems it necessary. See § 39.4085(21), Fla. Stat. (2001).

We, however, do not read section 39.4085(21) as authorizing a guardian ad litem to review the privileged records of a dependent child, and there is no indication in that section that the legislature intended such authority. To the contrary, we read subsection (21) as recognizing the minor’s right alone. To interpret the statute otherwise would essentially override the privacy interest of the child that is recognized in section 39.4085(2), (3).

Additionally, although we do not read section 61.403 in pari materia with chapter 39 such as to authorize a guardian ad litem to obtain confidential psychotherapist/patient records, we note that the supreme court, in deciding whether section 827.04(l)(a), Florida Statutes, which prohibits contributing to the delinquency of a minor, was unconstitutionally vague, looked not only to the language of chapter 827, but to chapters 39, 984, and 985 because they “have identical underlying purposes.” State v. Fuchs, 769 So.2d 1006, 1010 (Fla.2000); see also Am. Bakeries Co. v. Haines City, 131 Fla. 790, 801, 180 So. 524, 528 (1938)(“Laws should be construed with reference to the constitution and the purpose designed to be accomplished, and in connection with other laws in pari mate-ria, though they contain no reference to each other.”). Here, both chapter 39 and section 61.403 have the identical underlying purpose of protecting the interests of minors. As 61.403 is the only statute that speaks to the power of a guardian ad litem to access records of a minor, it is, at the very least, a useful aid in reviewing the scope of a guardian ad litem’s authority in chapter 39 proceedings. At a minimum, the principal’s right to notice and an opportunity to be heard should be recognized in this situation as it is in section 61.403.

Here, the minor’s privacy interests are at stake, and Article I § 23 of the Florida Constitution affords the right to privacy to every natural person irrespective of age. In re T.W., 551 So.2d 1186 (Fla.1989)(consent to abortion). In In re T.W., the Florida Supreme Court noted that, in addition to those interests considered in the case of an adult, the court must consider “the state’s interest in protecting minors.” Id. at 1195. The supreme court further recognized that in order to outweigh the minor’s privacy rights, the interest must be “compelling,” and where a compelling state interest is found, the state must choose the least intrusive or restrictive means of furthering that interest. Id. The legislature undoubtedly has considered much of the foregoing in enacting section 61.408.

To the extent that any invasion of the privilege is necessary to protect the minor, the guardian ad litem, at a minimum, should be restricted to using the least intrusive means of obtaining information about the child’s treatment. Although, here, we are dealing with a statutory, not a constitutional, privacy issue, there is no reason not to apply the same reasoning, particularly where the minor asserts the application of section 61.403(2). Patently, the least intrusive means for such purpose dictates that to the extent the court may have authority to invade the minor’s privilege, its exercise must, at a minimum, include notice to the minor and an opportunity to be heard. Submitting the issue to the trial court for resolution in camera and giving the minor the opportunity to be heard is the least restrictive or intrusive means of furthering a compelling state interest in acquiring the privileged information.

Although no Florida authority directly addresses this issue, there is analogous support. In In re Kristine W., 94 Cal.App.4th 521, 528, 114 Cal.Rptr.2d 369, 373 (2001), for example, the California appeals court held that the psychotherapist/patient privilege applies to the relationship between a dependent child and her therapist when a state social worker seeks information relating to the child’s communications with the therapist, including detailed records of therapy. There, the court held that these details were protected by the privilege, recognizing that the child “ ‘has a substantial privacy interest’ in the therapy she clearly needs.” The court further held that “[i]n view of the foreseeable ‘emotional harm to [Kristine] from a forced disclosure’ the social worker was only entitled to ‘circumscribed information’ about the treatment Kristine was receiving from her therapist. The court limited the information that the therapist was expected to provide to ‘matters that reasonably assist the court in evaluating whether further orders are necessary for Kristine’s benefit and presenting] the confidentiality of the details of her treatment.’ ” Id. at 528, 114 Cal.Rptr.2d 369.

Our attention is also drawn to a body of research suggesting that minors should be accorded greater rights in medical decisions. See, e.g., Richard E. Redding, Children’s Competence to Provide Informed Consent for Mental Health Treatment, 50 Wash. & Lee L.Rev. 695 (1993); Lois Weithorn & Susan Campbell, The Competency of Children and Adolescents to Make Informed Treatment Decisions, 53 Child Dev. 1589 (1982); Thomas Grisso & Linda Vierling, Minors’ Consent to Treatment: A Developmental Perspective, 9 Prof. Psychol.: Res. & Prac. 412 (1978).

The maturity of minors to participate in such decision making has also been recognized by our legislature. E.g., § 394.4784, Fla. Stat. (2001)(removes the disability of non-age for any minor age thirteen or over to access outpatient crisis intervention, diagnostic and evaluation services); § 397.601(4)(a), Fla. Stat. (2001)(removes disability of minority for the purpose of obtaining voluntary substance abuse impairment services). Florida statutory law also allows unwed pregnant minors or minor mothers to give consent to medical services for themselves and for their children. See § 743.065, Fla. Stat. (2001). Additionally, a child has the right to participate in proceedings relating to his or her own adoption and to consent to the adoption of her own child. See In re Brock, 157 Fla. 291, 25 So.2d 659 (1946); Peregood v. Cosmides, 668 So.2d 665 (Fla. 5th DCA 1995).

Common sense also dictates that failing to permit a mature minor the opportunity to object to the involuntary disclosure of private and intimate details shared with a therapist can only have a negative effect on the minor’s relationship with both the therapist and the guardian ad litem and would often taint the minor’s perception of the fairness of the legal process.

The Florida Bar Commission on the Legal Needs of Children, although not addressing the specific issue in this petition, has recently affirmed the importance of respecting the confidentiality interests of foster children in the final report that it submitted this past June to the Florida Bar Board of Governors.

Many children involved with service agencies have suffered repeated violations of their sense of personal privacy. They have been abused by parents or relatives, or transferred from one foster care placement to another, or treated like commodities on an assembly line by harried or overworked agency staff. Respect for confidentiality rights is particularly crucial for such children. It allows them to exert some measure of control over their world, and to develop a degree of trust in those around them.
Children with the capacity to consent or withhold consent to the release of confidential information concerning health care treatment (e.g., records concerning mental health treatment, treatment for sexually transmissible diseases or HIV) should be consulted prior to an agency releasing such records and should be asked to give informed consent to the release of such information.

The Florida Bar Commission on the Legal Needs of Children Executive Summary Final Report, Confidentiality Subcommittee Report, The Florida Bar (June 2002). The commission also recommended that “[cjhildren over 14 should be allowed to request that private information not be disclosed when the disclosure involves extraordinarily sensitive issues concerning the child’s privacy.” Id. at C.24.

We recognize that a guardian ad litem has an interest in inquiring into the child’s progress in therapy. Nevertheless, we conclude that Petitioner has a right to assert the therapist/patient privilege. The simple form order of appointment, here, allowing the guardian unrestricted access to the minor’s most private communications with her therapist, cannot override Petitioner’s right to privacy and right to assert the privilege.

Therefore, we conclude that the order denying Petitioner’s motion departs from the essential requirements of law in failing to afford the fourteen year old minor an opportunity to be heard. However, nothing in this opinion should be construed as instructing the trial court as to the maturity or competency of this minor or as to what relief, if any, should be afforded upon further review.

KLEIN and STEVENSON, JJ., concur.

      . We thank the state of Florida, guardian ad litem programs for its amicus appearance on behalf of the respondent and the University of Miami School of Law Children and Youth Law Clinic and Florida’s Children First for their amicus appearance on behalf of Petitioner.

      . Section 39.204, Florida Statutes, provides, in pertinent part: "The privileged quality of communication between ... any professional person and his or her patient or client ..., shall not apply to any communication involving the perpetrator or alleged perpetrator in any situation involving known or suspected child abuse, abandonment, or neglect....” § 39.204, Fla. Stat. (2001). Respondents assert that Petitioner’s privilege is abrogated by this statute. We do not address this issue, as Respondents did not object to the trial court's findings in its order. We also do not address whether Petitioner is competent to assert the privilege, as this issue was not raised in the trial court.

      . The executive summary and final report and recommendations of the confidentiality subcommittee of the bar commission are available on the bar website: www.flabar.org.


text:
    Dennis TRAGE, Appellant, v. Robert BOYKIW, and Regius Properties, Inc., Appellees.
    No. 3D03-406.
    District Court of Appeal of Florida, Third District.
    May 7, 2003.
    Sean Biggins, for Appellant.
    Smoler, Lerman, Bente & Whitebook, and Carlos Lerman, Miami, for Appellee.
    Before COPE, GODERICH, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Visoly v. Bodek, 602 So.2d 979, 980 (Fla. 3d DCA 1992)(The trial court is authorized to “look beyond the four corners of the complaint, take evidence, and rule as if the motion [to strike as a sham] were one for summary judgment.”).


text:
    Anthony EADDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2552.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.
    Anthony Eaddy, Wewahitchka, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We reverse the summary denial of defendant’s motion for post-conviction relief as to claim 4, alleging ineffective assistance of counsel as to the DNA expert and the failure to obtain a defense expert to explain the relationship of the evidence to his defense. On remand, the court shall afford an evidentiary hearing or attach parts of the record conclusively refuting this claim. The court shall also reconsider appellant’s Apprendi challenge to his sentence, raised in claim 6. See Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In all other respects the summary denial is affirmed.

WARNER, FARMER and KLEIN, JJ., concur.

      . Appellant’s case was not final when Appren-di was decided.


text:
    Kevin K. KROHN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-437.
    District Court of Appeal of Florida, Fourth District.
    May 7, 2003.

      Carey Haughwout, Public Defender, Ellen Griffin, Assistant Public Defender, West Palm Beach, and Kevin K. Krohn, Belle Glade, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for Appellee.
   PER CURIAM.

In this appeal, the public defender has filed a motion to withdraw pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the appellant has filed a pro se initial brief alleging three grounds of ineffective assistance of counsel in failing to correct score-sheet error as well as trial court error in sentencing appellant pursuant to an incorrect scoresheet. The revocation of appellant’s probation and his sentences are affirmed, without prejudice to his raising grounds of ineffective assistance of counsel and scoresheet error by a timely and proper postconviction motion pursuant to rule 3.800(a) and/or rule 3.850, Florida Rules of Criminal Procedure.

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


text:
    Alex Ricardo REEVES, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-4808.
    District Court of Appeal of Florida, Second District.
    May 9, 2003.
    James Marion Moorman, Public Defender, and A. Victoria Wiggins and William L. Sharwell, Assistant Public Defenders, Bar-tow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

Alex Ricardo Reeves appeals from his judgment and sentences for attempted kid-naping and aggravated battery. We find no merit in Reeves’ contention that the trial court erred when it denied his motion for a judgment of acquittal on the charge of attempted kidnaping. Reeves does not challenge his conviction for aggravated battery. Accordingly, we affirm Reeves’ convictions.

Reeves also challenges the trial court’s denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b) in which he claimed that the fifteen-year minimum mandatory terms imposed for his convictions were illegal under this court’s decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 302 (Fla.2002); but see State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). The trial court rejected Reeves’ claim, ruling that legislative enactments after Taylor transformed Reeves’ sentence into a legal sentence. The trial court ruled before this court issued its decision in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003). In Green, this court held that the reenacted punishments could not be applied retroactively. Accordingly, we reverse Reeves’ sentences and remand for resentencing in accordance with the valid laws in effect on the date of Reeves’ offenses.

Reversed and remanded.

WHATLEY and DAVIS, JJ., concur.


text:
    Edward JONES, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1159.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    Edward Jones, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Griffis v. State, 593 So.2d 308 (Fla. 1st DCA 1992).

BARFIELD, BENTON and POLSTON, JJ., concur.


text:
    Bobby JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 02-3657.
    District Court of Appeal of Florida, First District.
    May 15, 2003.
    Appellant, Pro se.
    Charlie Crist, Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Bobby Johnson was convicted of attempted first-degree murder and robbery with a weapon, and was sentenced in 1993 as a habitual violent felony offender to life imprisonment with a minimum mandatory term of 15 years pursuant to section 775.084, Florida Statutes (1991). Appellant now seeks review of the trial court’s denial of his post-conviction motion pursuant to Fla. R.Crim. P. 3.800 and/or 3.850 alleging several claims, one of which concerns the trial court’s alleged failure to exercise its discretion when it imposed the minimum mandatory sentence portion of his sentence. See State v. Hudson, 698 So.2d 831, 833 (Fla.1997)(holding that “the court’s sentencing discretion extends to determining whether to impose a mandatory minimum term”); Randolph v. State, 789 So.2d 1080, 1081 (Fla. 1st DCA 2001)(reversing because the sentencing proceedings excerpt did not conclusively show that the judge believed that imposition of the minimum mandatory was discretionary).

We affirm the trial court’s ruling because Hudson is not to be applied retroactively. New v. State, 807 So.2d 52 (Fla.2001).

AFFIRMED.

BOOTH, BENTON and POLSTON, JJ., concur.

      . We reject Appellant's other claims without further discussion.


author: WARNER, J.

text:
    Joshua N. BRATT, a minor, through his parents, natural guardians and next friends, Martin S. BRATT and Louise J. Bratt, and Martin S. Bratt and Louise J. Bratt, individually, Appellants, v. Suzanne LASKAS, M.D., Peter Averkiou, M.D., Jack J. Blanco, M.D., Jerry R. Wexler, M.D., Wexler, Blanco & Laskas, M.D., P.A., d/b/a Boca Raton Pediatric Associates, Lawrence M. Adams, M.D., Lawrence M. Adams, M.D., P.A., Peter G. Ballad, II, M.D., Peter G. Ballad, II, M.D., P.A., Jaime L. Baquero, M.D., Jamie L. Baquero, M.D., P.A., Boca Raton Community Hospital, Inc., Terry B. Cohen, M.D., Evan D. Goldstein, M.D., Jack F. Kareff, M.D., Joseph R. Purita, M.D., Quinn, Wollowick, Purita, Schosheim, Krebsbach & Stewart, Inc., Edward Kaplan, M.D., Jose M. Flores, M.D., Jose M. Flores, M.D., P.A., Stuart A. Friedman, M.D., Howard Martinez, M.D., Boca Infectious Disease Consultants, P.A., n/k/a Infectious Disease Associates, P.A., Virginia Rae, M.D., Virginia Rae, M.D., P.A., University of Miami, d/b/a University of Miami School of Medicine, Richard G. Curless, M.D., Rene Ruiz-Isasi, M.D. and Rene Ruiz-Isasi, M.D., P.A., Appellees.
    No. 4D01-3386.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2003.

      Edward T. Dinna of Law Office of Edward T. Dinna, Fort Lauderdale, for appellant.
    Esther E. Galicia of George, Hartz, Lun-deen, Fulmer, Johnstone, King & Stevens, Fort Lauderdale, for appellees Rene Ruiz-Isasi, M.D., and Rene Ruiz-Isasi, M.D., P.A.
   WARNER, J.

Appellant, Joshua Bratt (“Bratt”), challenges the entry of final summary judgment in favor of appellee, Dr. Ruiz-Isasi (“Dr. Isasi”), in a medical malpractice action. He claims that the affidavits create genuine issues of material fact. We agree and reverse.

In the summer of 1993, Bratt attended summer camp in Massachusetts. After hiking in the wilderness, Bratt became extremely ill and developed a severe skin rash. When he returned to Florida, his parents took him to see his primary care physician, Dr. Laskas, who diagnosed the rash as scabies and prescribed a medicated shampoo. However, this resulted in transforming the rash into crusty sores similar to psoriasis. Bratt was then sent to two dermatologists for diagnoses.

While this was occurring, Bratt also developed gastrointestinal problems caused by an ascaris infection. Dr. Laskas prescribed medication, but when Bratt continued to have chronic abdominal pain, she sent him to Dr. Isasi, a pediatric gastroen-terologist. His first visit with Dr. Isasi was approximately six weeks after returning from summer camp. Dr. Isasi performed several tests on Bratt and diagnosed him with an ascaris infection, as well as esophagitis, mild duodenitis, and reflux. He referred him to a dietician and prescribed medication. Dr. Isasi noticed Bratt’s skin rash, and Mrs. Bratt informed the doctor of her son’s history with the rash. Dr. Isasi did not think it was psoriasis and only confirmed that Bratt was seeing a dermatologist for the condition. In all, Dr. Isasi saw Bratt three times solely for his ascaris infection.

Over a year later, after Bratt had seen a dozen physicians and had developed various other symptoms, including severe headaches, he was seen in New York by Dr. Wolff, who diagnosed Bratt as suffering from Lyme’s disease, an infection spread by a tick bite. Due to the late diagnosis, however, Bratt had already suffered permanent neurological damage.

Bratt and his parents filed a medical malpractice action against all of his treating physicians for failure to diagnose his medical condition as Lyme’s disease. As to Dr. Isasi, Bratt alleged that gastrointestinal problems were common with Lyme’s disease. As such, Dr. Isasi failed to comply with the professional standard of care by not considering Lyme’s disease after being presented Bratt’s history and symptoms, by not conducting appropriate examinations and tests to diagnose Lyme’s disease, and by not treating or referring Bratt for treatment for Lyme’s disease. These departures, Bratt alleged, were the proximate cause of his injuries.

After answering the complaint and denying the material allegations, Dr. Isasi moved for summary judgment attaching an affidavit of Dr. Perman, a board certified pediatric gastroenterologist, who reviewed the medical records, the discovery, and depositions. Dr. Perman opined that Dr. Isasi’s diagnosis, care and treatment of Bratt were within the standard of care for pediatric gastroenterologists in the medical community and was not the proximate cause of Bratt’s injuries. In addition, Dr. Perman opined that Dr. Isasi, as a pediatric gastroenterologist did not have a duty to diagnose or treat Bratt’s skin rash where other physicians were treating that condition.

Bratt responded to Dr. Isasi’s motion by filing the affidavits of Louise Bratt, his mother, and Dr. May, a pediatrician. The mother’s affidavit included a detailed account of Bratt’s medical history since developing the skin rash in Massachusetts, including the various physicians that saw and treated Bratt and the symptoms he presented to each. Dr. May’s affidavit explained Lyme’s disease and its multi-organ effect. He further attested that Bratt’s symptoms should have alerted each attending physician to the possibility of Lyme’s disease as a differential diagnosis to be ruled out, particularly when 75% of Lyme’s disease cases come from seven Northeastern states, including Massachusetts where Bratt had been camping. Dr. May also stated that because Lyme’s disease can produce a variety of medical problems, involving a number of major organ systems, “every modern clinician needs to be familiar with Lyme disease ... be they pediatricians [or] ... gas-troenterologists.”

At the hearing, Dr. Isasi’s attorney noted that Dr. May’s specialty was pediatric hematology and oncology; therefore, he did not qualify as an expert in the prevailing professional standard of care for a pediatric gastroenterologist. Moreover, he claimed that Dr. May’s opinions, given in 1996 during the pre-suit process were “out-dated” as they did not consider other discovery. Bratt countered that, as the non-moving party, he did not have to produce any evidence until Dr. Isasi demonstrated from his affidavits the non-existence of material issues of fact. Bratt asserted Dr. Perman’s affidavit lacked specificity and failed to conclusively establish that no genuine issues of material fact remained. The court disagreed and entered final summary judgment in favor of Dr. Isasi, from which Bratt appeals.

This court reviews de novo a trial court’s decision on a motion for summary judgment. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A trial court may enter summary judgment only when there are no genuine issues of material fact conclusively shown from the record, entitling the mov-ant to judgment as a matter of law. See Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). The movant’s burden is to come forward with competent evidence to demonstrate the non-existence of a material issue of fact. See Buitrago v. Rohr, 672 So.2d 646, 648 (Fla. 4th DCA 1996) (citing Landers v. Milton, 370 So.2d 368, 370 (Fla.1979)). Once established, to avoid summary judgment, the non-moving party must then produce evidence demonstrating a genuine issue of material fact exists. See id. All doubts and inferences must be resolved against the moving party, and if there is the slightest doubt or conflict in the evidence, then summary judgment is not available. See Albelo, 682 So.2d at 1129.

The seminal case of Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966), held, in a medical malpractice action, that the burden of proving the non-existence of a material fact must be conclusively established before the burden shifts to the non-moving party to refute the moving party’s affidavit. In Holl, the plaintiff was reduced to a vegetative state after an operation. The court reviewed the defendant’s affidavits of physicians which merely indicated that the defendant physicians and hospitals had acted within the standard of care and practice in the community. The court described such affidavits as “net opinions,” in that they were “ ‘naked assertion[s] — unsupported by expert medical explanation of its basis or reason it was reached.’ ” Id. at 45. As such, these affidavits were insufficient to conclusively demonstrate the absence of genuine issues of material fact and to shift the burden to the plaintiff. The legal sufficiency of the plaintiffs affidavits, therefore, should not have been considered. Similarly, in this case, Dr. Perman’s affidavit failed to carry the burden of proving the non-existence of a material fact. Although he testified that Dr. Isasi had no duty to diagnose and treat a skin rash being treated by other physicians, Bratt had alleged in his complaint that when presented with the history and physical examination of Bratt, Dr. Isasi had a duty to diagnose and treat Lyme’s disease, of which the skin rash was a mere symptom. It was the failure to recognize Bratt’s symptoms as Lyme’s disease which was the negligence alleged, not the failure to treat a skin rash.

Even if Dr. Perman’s affidavit was sufficient, the affidavits of Bratt’s mother regarding his history as given to Dr. Isasi coupled with Dr. May’s affidavit sufficiently refuted Dr. Perman’s affidavit so as to show that a genuine issue of material fact remained. Dr. May testified that it was below the standard of care for any doctor presented with Bratt’s history and symptoms not to include Lyme’s disease in a differential diagnosis, particularly where the failure to diagnose and treat the disease in its early stages would result in permanent damage. While Dr. Isasi attacks Dr. May’s affidavit as being legally insufficient, we conclude that it explained Lyme’s disease and its symptoms, the duty of any clinician to know and consider the disease, and the permanent injury which will likely occur if left undiagnosed and untreated. Dr. Isasi saw Bratt early in the course of the disease. At that time, treatment with antibiotics could have prevented the damage that occurs to the central nervous system with untreated Lyme’s disease. As such, Dr. May’s affidavit created an issue of fact regarding whether Dr. Isasi’s failure to diagnose and treat Lyme’s disease was a proximate cause of Bratt’s injuries, an issue to be determined by the trier of fact. See Fla. Power & Light v. Periera, 705 So.2d 1359, 1361 (Fla.1998).

Finally, Dr. Isasi contends that Dr. May was not qualified to critique his care and treatment where Dr. May is not a “similar health care provider” within the meaning of section 766.102(2), Florida Statutes (1995). Where a defendant is a specialist, then an expert presented to testify regarding the standard of care must be a “ ‘similar health care provider’... who (l)[i]s trained and experienced in the same specialty; and (2)[i]s certified by the appropriate American board in the same specialty.” § 766.102(2)(b). However, this section also allows expert testimony from one who is not a “similar health care provider” if the trial court is satisfied that the expert:

[PJossesses sufficient training, experience, and knowledge as a result of practice or teaching in the specialty of the defendant or practice or teaching in a related field of medicine, so as to be able to provide such expert testimony as to the prevailing professional standard of care in a given field of medicine. Such training, experience, or knowledge must be as a result of the active involvement in the practice or teaching of medicine within the 5-year period before the incident giving rise to the claim.

§ 766.102(2)(c)2 (emphasis added). Dr. May’s affidavit satisfies this alternative standard. Even if he is not certified in the sub-specialty of pediatric gastroenterology, as is Dr. Isasi, Dr. May’s extensive training and experience in general pediatric medicine qualified him to render an opinion regarding diagnosing and treating children with Bratt’s presentation. Dr. May is board certified in pediatrics, was the medical director of child health and laboratory services at a North Carolina hospital, and was an associate professor of pediatrics at East Carolina University School of Medicine. He has made multiple extensive presentations on pediatric subjects, including recognizing childhood illnesses. Conversely, no proof was introduced that Dr. May was not qualified to give expert testimony pursuant to the statutory exception. See Charlonne v. Rosenthal, 642 So.2d 632 (Fla. 3d DCA 1994). Therefore, Dr. May’s affidavit was competent to establish the existence of a genuine issue of material fact.

For the foregoing reasons, we reverse the entry of summary judgment in favor of Dr. Isasi and remand for further proceedings.

SHAHOOD and TAYLOR, JJ., concur.