author: WELLS, J.

text:
    STATE of Florida, Appellant, v. Jose ABREU, Appellee.
    No. SC01-2596.
    Supreme Court of Florida.
    Jan. 9, 2003.
    Charlie Crist, Attorney General, Celia A. Terenzio, Bureau Chief, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Appellant.
    Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Appellee.
   WELLS, J.

We have on appeal Abreu v. State, 804 So.2d 442 (Fla. 4th DCA 2001), a decision of the Fourth District Court of Appeal declaring invalid a state statute. We have jurisdiction, see art. V, § 3(b)(1), Fla. Const., and conclude that section 90.803(22), Florida Statutes (1999), is unconstitutional in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness’s testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable. We affirm the Fourth District’s decision in Abreu.

Appellee Jose Abreu was charged with and subsequently convicted of burglary of a dwelling. During the first trial, Jeffrey Eckman was the State’s key witness, and he testified in person. Abreu’s first trial ended in a mistrial declared after the jury deadlocked. On retrial, the trial court granted the State’s request pursuant to section 90.803(22), Florida Statutes (1999), to present Eckman’s testimony from the first trial in lieu of his live testimony. Abreu repeatedly objected to the presentation of the former testimony and asserted that the Sixth Amendment of the United States Constitution and article I, section 16(a) of the Florida Constitution guaranteed him the right to confront his accuser. Over Abreu’s objection, Eckman’s former trial testimony was read to the jury.

Eckman, who was apparently ill, moved out of the state after the crime occurred but before the first trial. The prosecutor secured Eckman’s presence for the first trial. The record from Abreu’s second trial reveals that the prosecutor told the trial judge that Eckman had become uncooperative and it was unlikely that Eck-man would return to Florida for the retrial. The State, however, did not attempt to have Eckman declared unavailable for purposes of the retrial, and the record does not contain any supporting documentation that the State attempted to secure Eck-man’s attendance for the retrial. The record also reveals no express finding by the trial court that Eckman was unavailable.

Abreu appealed the admission of the former testimony. The Fourth District agreed with Abreu’s objections, reversed his conviction, and remanded for a new trial. Abreu, 804 So.2d at 444-45. That court determined that a 1998 amendment to section 90.803(22) effectively removed the unavailability requirement of section 90.804(2)(a), Florida Statutes (1999), as a prerequisite to the use of former testimony in lieu of live testimony. See Abreu, 804 So.2d at 443. Prior to 1998, only section 90.804(2)(a) governed the admission of former testimony in criminal proceedings, and it required that the witness be unavailable. At the same time, section 90.803(22) .allowed the admission, notwithstanding a declarant’s availability, of “[f]ormer testimony given by the declarant at a civil trial, when used in a retrial of said trial involving identical parties and the same facts.” The 1998 amendment, however, greatly expanded the scope of section 90.803(22) to allow, notwithstanding a declarant’s availability, the admission of

[fjormer testimony given by the declar-ant which testimony was given as a witness at another hearing of the same or a different proceeding ... if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, or a person with a similar interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination....

This amendment appeared to allow the introduction of former testimony at not only civil but also criminal trials without a showing of unavailability. After reviewing federal Sixth Amendment jurisprudence, however, the Fourth District concluded that “live testimony may not be constitutionally supplanted with former testimony in criminal cases absent a showing of unavailability.” Id. at 444. Based upon this conclusion, the Fourth District held section 90.803(22) unconstitutional as applied in all criminal cases, absent a showing of unavailability. Id.

In the instant case, the record does not show that the prosecutor demonstrated or even asked the trial court to declare that witness Eckman was unavailable for the second trial. Thus, the issue before this Court is whether section 90.803(22) is contrary to the Sixth Amendment of the United States Constitution by authorizing the use of a witness’s testimony from a previous judicial proceeding in the trial of a criminal defendant in the absence of demonstrated unavailability.

The Sixth Amendment of the United States Constitution states in pertinent part that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” The Supreme Court of the United States has stated that the Sixth Amendment requires that witnesses generally must testify in person. However, the Court has also held that former testimony may be used at trial when a witness is unavailable due to death. See Mattox v. United States, 156 U.S. 237, 242-44, 15 S.Ct. 337, 39 L.Ed. 409 (1895). The Court in Barber v. Page, 390 U.S. 719, 722, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), explained that prior to a finding by the trial court that a prosecu-torial witness is unavailable for trial, the burden is on the State to demonstrate good-faith efforts at securing the witness’s presence for trial. See also Berger v. California, 393 U.S. 314, 315, 89 S.Ct. 540, 21 L.Ed.2d 508 (1969) (“[T]he absence of a witness from the jurisdiction would not justify the use at trial of preliminary hearing testimony unless the State had made a good-faith effort to secure the witness’ presence.”).

In Ohio v. Roberts, 448 U.S. 56, 65-66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court held that, based upon this constitutional requirement, a prosecutor must demonstrate a witness’s unavailability pri- or to allowing at a trial former testimony from a previous judicial proceeding. In Roberts, the former testimony was garnered at a preliminary hearing, and the witness’s preliminary hearing testimony was read to the jury at trial. The Supreme Court explained:

The Confrontation Clause operates in two separate ways to restrict the range of admissible hearsay. First, in conformance with the Framers’ preference for face-to-face accusation, the Sixth Amendment establishes a rule of necessity. In the usual case (including cases where prior cross-examination has occurred), the prosecution must either produce, or demonstrate the unavailability of, the declarant whose statement it wishes to use against the defendant.
The second aspect operates "once a witness is shown to be unavailable. Reflecting its underlying purpose to augment accuracy in the factfinding process by ensuring the defendant an effective means to test adverse evidence, the Clause countenances only hearsay marked with such trustworthiness that “there is no material departure from the reason of the general rale.”
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate “indi-cia of reliability.”

Id. (emphasis added) (citations and footnote omitted).

We recognize that subsequently, in United States v. Inadi, 475 U.S. 387, 392-93, 106 S.Ct. 1121, 89 L.Ed.2d 390 (1986), and White v. Illinois, 502 U.S. 346, 354, 112 S.Ct. 736, 116 L.Ed.2d 848 (1992), the Court limited Roberts to a resolution of only the issue before the Court at that time and not as addressing all out-of-court statements. However, both Inadi and White expressly state that a showing of unavailability is constitutionally required by the Confrontation Clause of the Sixth Amendment where a prosecutor seeks to use former testimony from a previous judicial proceeding in lieu of live testimony. Inadi, 475 U.S. at 394, 106 S.Ct. 1121; White, 502 U.S. at 354, 112 S.Ct. 736.

The issue in Inadi was whether the Confrontation Clause requires the government to demonstrate that a nontestifying eoconspirator is unavailable to testify as a prerequisite for admission of that cocon-spirator’s out-of-court statements. Inadi, 475 U.S. at 388, 106 S.Ct. 1121. In addressing this claim, the Supreme Court limited the unavailability requirement of Roberts to the situation described in Roberts, i.e., testimony from a prior judicial proceeding proffered in place of live testimony at trial. Id. at 392-93, 106 S.Ct. 1121. The Supreme Court observed:

The Confrontation Clause analysis in Roberts focuses on those factors that come into play when the prosecution seeks to admit testimony from a prior judicial proceeding in place of live testimony at trial. See Fed. Rule Evid. 804(b)(1). In particular, the Roberts Court examined the requirement, found in a long line of Confrontation Clause cases involving prior testimony, that before such statements can be admitted the government must demonstrate that the declarant is unavailable. All of the cases cited in Roberts for this “unavailability rule” concern prior testimony. In particular, the Court focused on two cases, Barber and Maneusi, that directly “explored the issue of constitutional unavailability.” 448 U.S. at 76, 100 S.Ct. 2531. Both cases specifically limited the unavailability requirement to prior testimony. Barber, supra, at 722, 88 S.Ct. 1318; Maneusi, supra, at 211, 92 S.Ct. 2308.

Roberts must be read consistently with the question it answered, the authority it cited, and its own facts. All of these indicate that Roberts simply reaffirmed a longstanding rule, foreshadowed in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), established in Barber, and refined in a line of cases up through Roberts, that applies unavailability analysis to prior testimony.[n.] Roberts cannot fairly be read to stand for the radical proposition that no out-of-court statement can be introduced by the government without a showing that the declarant is unavailable.

[n.] In federal court the unavailability rule for former trial testimony was established long before Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), in Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895).

Inadi, 475 U.S. at 393-94, 106 S.Ct. 1121 (citations omitted). Similarly, Roberts was again addressed in White, where the Court succinctly stated in respect to the requirement of unavailability:

Roberts stands for the proposition that unavailability analysis is a necessary part of the Confrontation Clause inquiry only when the challenged out-of-court statements were made in the course of a prior judicial proceeding.

White, 502 U.S. at 354, 112 S.Ct. 736. Both Inadi and White make clear that Roberts requires a showing of unavailability prior to the admission at a criminal trial of former testimony adduced at a “prior judicial proceeding.”

Moreover, this Court has likewise stated that a showing of “a substantial reason ... why the original witness is not available” is a requirement to the use of prior testimony. Thompson v. State, 619 So.2d 261, 265 (Fla.1993); cf. Harrell v. State, 709 So.2d 1364, 1369 (Fla.1998) (requiring case-specific findings based on important state interests, public policies, or necessities of the case before satellite testimony is allowed as an exception to the Confrontation Clause).

The State attempts to distinguish Roberts and Barber from the instant case, however, by contending that the “prior judicial proceeding” in those cases was a preliminary hearing in which there was a significant question as to whether the defendants had been able to cross-examine the witness. In the instant case, the “pri- or judicial proceeding” was a prior trial where there was a full opportunity for cross-examination. Thus, according to the State, the rule from Roberts and Barber should not be applied to the instant situation because the full ability to develop cross-examination occurred at the former judicial proceeding.

The State’s contention, however, is without merit. It must be remembered that Pointer was decided fifteen years prior to Roberts, and the main issue addressed in Pointer was whether the Confrontation Clause applied to the states under the Fourteenth Amendment. Thus, the focus of Pointer was not unavailability. Five years after the Pointer decision, and therefore before the Roberts decision, the Supreme Court in California v. Green, 399 U.S. 149, 165-66, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970), discussed the quoted passage from Pointer and ascribed an unavailability requirement to it. In Green, as in Pointer, the “prior judicial testimony” was adduced at a preliminary hearing. Id. at 151, 90 S.Ct. 1930. Unlike Pointer, however, the circumstances of the preliminary hearing in Green “closely approximated] those that surround a typical trial.” Id. at 165, 90 S.Ct. 1930. The court in Green stressed the unavailability requirement:

This Court long ago held that admitting the prior testimony of an unavailable witness does not violate the Confrontation Clause. Mattox v. United States, 156 U.S. 237, 15 S.Ct. 337, 39 L.Ed. 409 (1895). That case involved testimony given at the defendant’s first trial by a witness who had died by the time of the second trial, but we do not find the instant preliminary hearing significantly different from an actual trial to warrant distinguishing the two cases for purposes of the Confrontation Clause. Indeed, we indicated as much in Pointer v. Texas, 380 U.S. 400, 407, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), where we noted that “[t]he case before us would be quite a different one had Phillips’ statement been taken at a full-fledged hearing at which petitioner had been represented by counsel who had been given a complete and adequate opportunity to cross-examine.” And in Barber v. Page, 390 U.S. 719, 725-726, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968), although noting that the preliminary hearing is ordinarily a less searching exploration into the merits of a case than a trial, we recognized that “there may be some justification for holding that the opportunity for cross-examination of a witness at a preliminary hearing satisfies the demands of the confrontation clause where the witness is shown to be actually unavailable.... ” In the present case respondent’s counsel does not appear to have been significantly limited in any way in the scope or nature of his cross-examination of the witness Porter at the preliminary hearing. If Porter had died or was otherwise unavailable, the Confrontation Clause would not have been violated by admitting his testimony given at the preliminary hearing — the right of cross-examination then afforded provides substantial compliance with the purposes behind the confrontation requirement, as long as the declarant’s inability to give live testimony is in no way the fault of the State.

Id. at 165-66, 90 S.Ct. 1930 (emphasis added). Two years after Green, the Court in Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972), addressed a situation where the prior judicial proceeding was a previous trial. The witness in the Mancusi case moved out of the country after the first trial and therefore was unavailable for the retrial. Id. at 209, 92 S.Ct. 2308. While not expressly stated in Mancusi, it appears the Court required a preliminary finding of unavailability pri- or to allowing the former trial testimony to be used at the retrial. The Court explained:

The witness Holm, consistently with the requirement of the Confrontation Clause, could have been and was found by the trial court to be unavailable at the time of the second trial. There was, therefore, no constitutional error in permitting his prior-recorded testimony to be read to the jury at that trial, and no constitutional infirmity in the judgment of conviction resulting from that trial....

Id. at 216, 92 S.Ct. 2308 (emphasis added).

The import of Green and Mancusi is that in both of those cases the “prior judicial proceeding” at issue involved full-scale cross-examination mirroring that in a trial. Indeed, the “prior judicial proceeding” in the Mancusi case was a former trial. The Green and Mancusi decisions linked an unavailability requirement to the use of the prior testimony, despite the former opportunity for full cross-examination, and thereby clarified the dicta in Pointer suggesting the contrary. It is in this context that the Roberts case was decided several years later.

Importantly, Roberts cited to Pointer, Green, and Mancusi. Roberts, 448 U.S. at 66,100 S.Ct. 2531. Thus, tracing the etiology of the “prior judicial proceedings” in those cases, it is clear that the “prior judicial proceedings” referenced in Inadi and White included proceedings where full-scale cross-examination had occurred. Because the Supreme Court in Inadi and White stated that Roberts must be understood in the context of the authority on which it relied, the phrase “prior judicial proceedings” is sufficiently broad to cover testimony at a previous trial. Accordingly, the State’s suggestion that Roberts and Barber do not apply to the instant case is without merit. When broadly stating that the rule from Roberts requires a showing of unavailability before admission of former testimony from “prior judicial proceedings,” both Inadi and White contemplate the situation in the instant case where the proffered former testimony was adduced at a previous trial.

Lastly, we note that the State points to and we find no case law or statutes from other states that permit the use of former testimony at a criminal trial in the absence of a showing of unavailability. In fact, at least one other state supreme court has held specifically that significant cross-examination in a prior judicial proceeding is not enough to meet constitutional requirements because “[ujnder Barber and Roberts, unavailability is an essential ingredient of the Confrontation Clause when the proffered evidence is former testimony.” State v. Medina, 178 Ariz. 570, 875 P.2d 803, 810 (1994).

CONCLUSION

Accordingly, we affirm the Fourth District’s decision in Abreu. We conclude that Abreu’s right to confrontation has been violated in this case and that he is entitled to a new trial. We also hold that section 90.803(22) violates the Confrontation Clause of the Sixth Amendment in criminal proceedings to the extent that it allows the prosecutor to use at trial a witness’s testimony from a previous judicial proceeding without a showing by the prosecutor that the witness is unavailable.

It is so ordered.

ANSTEAD, C.J., PARIENTE, LEWIS, and QUINCE, JJ., and SHAW and HARDING, Senior Justices, concur.


source: Caselaw Access Project

author: SHAW, Senior Justice.

license: Public Domain

text:
    Maurice DERIUS, Petitioner, v. ALLSTATE INDEMNITY COMPANY, Respondent.
    No. SC01-296.
    Supreme Court of Florida.
    Jan. 16, 2003.
    Mark Tischhauser, Tampa, FL; and Diego Ascencio, North Palm Beach, FL, for Petitioner.
    Richard A. Sherman of the Law Offices of Richard A. Sherman, P.A., Fort Lauder-dale, FL; Joseph G. Murasko of Dickstein, Reynolds & Woods, West Palm Beach, FL; and Peter J. Valeta of the Law Offices of Ross & Hardies, Chicago, IL, for Respondent.
    Tracy Raffles Gunn of Fowler, White, Boggs, & Banker, P.A., Tampa, FL, for Progressive Insurance Companies and Florida Defense Lawyers Association, Am-ici Curiae.
   SHAW, Senior Justice.

We granted review in Allstate Indemnity Co. v. Derius, 773 So.2d 1190 (Fla. 4th DCA 2000), based on conflict with Perez v. State Farm, Fire & Casualty Co., 746 So.2d 1123 (Fla. 3rd DCA 1999), quashed sub nom. United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (Fla.2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

The Fourth District Court of Appeal in Deñus held that a doctor’s written report is not required “as a condition precedent to reducing payment of a [PIP] bill” under section 627.736(7)(a), Florida Statutes (1999). Derius sought review in this Court based on conflict with Perez, wherein the Third District Court of Appeal held that, under a different PIP provision, an insurer must pay a medical bill unless the insurer first “obtain[s], within thirty days, a medical report providing ‘reasonable proof that it is not responsible for payment.”

We have since decided United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82 (Fla.2001), wherein we ruled that the above language in Perez was erroneous. The conflict between Derius and Perez thus has been resolved, and we dismiss Derius. We deny Derius’s motion for attorney s fees because he is not the prevailing party before this Court.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE and QUINCE, JJ., concur.

LEWIS, J., dissents.

CANTERO, J., recused.

      . See Derius, ITS So.2d at 1191.

      . See Perez, 746 So.2d at 1125 (emphasis omitted).

      . See Rodriguez, 808 So.2d at 87.


author: GREEN, J. PER CURIAM.

text:
    Lucious BROWN and Henrietta Brown, Appellants, v. MIAMI-DADE COUNTY and Golden Glades Management Corp., Appellees.
    No. 3D00-3540.
    District Court of Appeal of Florida, Third District.
    Dec. 5, 2001.
    Order Denying Rehearing En Banc Jan. 28, 2003.
    Dissenting Opinion on Denial of Rehearing En Banc Jan. 28, 2003.
    Barbara Green, Coral Gables; Alan B. Saslaw, Aventura; Clark, Robb, Mason & Coulombe and James K. Clark, Miami, for appellants.
    Robert A. Ginsburg, Miami-Dade County Attorney and Stephen A. Stieglitz, Assistant County Attorney, for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   GREEN, J.

Appellants, Lucious and Henrietta Brown, plaintiffs below, appeal the dismissal of their claims against Miami-Dade County (“the County” or “Miami-Dade”) for assault and negligence. They assert, and we agree, that their claims were not barred by the doctrine of sovereign immunity as found by the trial court. Accordingly, we reverse and remand for further proceedings.

On a review of a motion to dismiss, we must accept the well-plead allegations of the complaint as true. See Cutler v. Bd. of Regents, 459 So.2d 413, 414 (Fla. 1st DCA 1984). In their second amended complaint, the Browns sought damages against the County for assault and negligence. The allegations as to assault in Count I were, in relevant part, as follows:

10. On or about June 12, 1997, Plaintiff, LUCIOUS BROWN, was a paying guest of the Howard Johnson Motel located at or near 16500 Northwest 2nd Avenue, Miami, Dade County, Florida (hereinafter referred to as “THE PREMISES”).
11. On or about this date, Defendant, MIAMI-DADE, by and through its Police Department employees, servants, and/or agents, conducted a police operation related to prostitution on THE PREMISES.
12. While the police operation was ongoing, Plaintiff, LUCIOUS BROWN, was walking on an inside hallway of THE PREMISES going to and from the Motel Lobby to his room when he came upon a ninety degree bend in the hallway requiring him to turn right in order to proceed towards his room. Just as Plaintiff made his right turn around the corner of the hallway, a police officer spun left towards the Plaintiff, pointed a gun directly at Plaintiff without cause or justification, and yelled freeze; thereby placing Plaintiff in fear of imminent peril.
13. That Defendant, MIAMI DADE’s, aforementioned actions created a known dangerous condition on THE PREMISES which was not readily apparent to the Plaintiff, LUCIOUS BROWN.
14. That the Defendant, MIAMI-DADE, had knowledge of the presence of persons in THE PREMISES who were likely to be injured by the aforementioned dangerous condition, including the Plaintiff and other paying guests of the Howard Johnson Motel who would be walking in the hallways of THE PREMISES to and from their motel room.
15. That the Defendant, MIAMI-DADE, failed to take steps to warn and/or protect the Plaintiff from the foregoing dangerous condition.
16. As a result, Plaintiff, LUCIOUS BROWN, suffered bodily injury and resulting pain and suffering, disability, disfigurement, mental anguish, loss of capacity for the enjoyment of life, expense of hospitalization, medical and nursing care and treatment, and aggravation of a previously existing condition. The losses are either permanent or continuing and Plaintiff will suffer the losses in the future.
In Count II of their second amended complaint, the Browns alleged negligence against Miami-Dade by reasserting the allegations contained in Count I and by adding, in relevant part, the following:
* * *
20. On or about June 12, 1997, Plaintiff, LUCIOUS BROWN, was lawfully upon THE PREMISES.
22. On or about June 12, 1997, Plaintiff, LUCIOUS BROWN, was walking on an inside hallway of THE PREMISES going from the Motel Lobby to his room when he came upon a ninety degree bend in the hallway requiring him to turn right in order to proceed towards his room. Just as Plaintiff made his right turn around the corner of the hallway, a police officer spun left towards the Plaintiff; pointed a gun directly at Plaintiff without cause or justification; and yelled freeze which resulted in Plaintiff losing his footing and falling to the ground.
23. The Plaintiff, LUCIOUS BROWN, was an innocent bystander and had no association with the police operation other than his walking in the hallway at or about the location of the police operation.
24. Defendant, MIAMI-DADE was negligent, such negligence includes, but is not limited to the following:
a. Failing to establish a safe perimeter around the ongoing police operation;
b. Failing to stop Plaintiff from walking into a dangerous situation by allowing him to walk down a hallway where an ongoing police operation was taking place;
c. Failing to use reasonable care in performing the police operation;
d. Creating a dangerous condition on THE PREMISES;
e. Failing to supervise and inspect, or insufficiently supervising and inspecting the police operation;
f. Failing to warn of prostitution related activity occurring on THE PREMISES;
g. Failing to warn of a criminal element present on THE PREMISES associated with prostitution related activity.
h. Failing to properly warn, or sufficiently warning [sic] the Plaintiff and the public of the dangerous police operation; and,
i. Failing to follow safety precautions in order to prevent harm to Plaintiff and others similarly situated;
25.That Defendant, MIAMI-DADE’s aforementioned actions created a known dangerous condition on THE PREMISES which was not readily apparent to the Plaintiff, LUCIOUS BROWN.

The County moved to dismiss these claims on the grounds that its police officers were in the process of carrying out their discretionary power to enforce compliance with the law and, as such, their actions toward Mr. Brown could not give rise to tort liability. Alternatively, the County argued that even if the alleged police activity was not immune, the County owed no duty to the plaintiff greater than its duty to the public in general since the plaintiff was not in police custody. The trial court granted the County’s motion to dismiss the plaintiffs claims and this appeal followed.

We begin our analysis with the question of whether the County owed an actionable duty to the appellants based upon the allegations contained in their complaint. That is because the issue of sovereign immunity does not arise unless a common law or statutory duty of care existed which would have been applicable to an individual under like circumstances. See Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (stating that: “while a duty certainly must exist for there to be liability, the question of governmental immunity does not itself depend upon this determination. That is, a court must find no liability as a matter of law if either (a) no duty of care existed, or (b) the doctrine of governmental immunity bars the claim.”). We find that the County did owe a duty of care to Lucious Brown where the alleged conduct of the police created a foreseeable zone of risk to him as an innocent bystander. The Supreme Court in Kaisner has recognized that:

[w]here a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.

543 So.2d at 735.

As the risk grows, so too does the duty, because the risk to be perceived defines the duty of care to be undertaken. See City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992).

The appellants correctly point out that Florida courts have found that police officers do owe a duty to exercise reasonable care to protect innocent bystanders such as appellant, Lucious Brown, where their law enforcement activities create a foreseeable zone of risk. See e.g., City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992) (finding that police owed duty to innocent motorists killed wdiile police were pursuing traffic violator in a high-speed chase); City of Miami v. Hong-De La Cruz, 784 So.2d 475 (Fla. 3d DCA 2001) (city owed duty of care to pedestrian injured as police pursued a felon on foot during crowded festival); Sams v. Oelrich, 717 So.2d 1044 (Fla. 1st DCA 1998) (deputy owed duty to innocent persons in hospital emergency room to reasonably control the acts of escapee taken to hospital by the police); Creamer v. Sampson, 700 So.2d 711 (Fla. 2d DCA 1997) (duty owed to innocent plaintiff motorist by police during high-speed pursuit of traffic offender).

Contrary to the argument advanced by the County, a police officer’s duty to exercise reasonable care is not limited to “hot pursuit” situations or cases involving a custodial relationship between the police officer and the injured party. For example, in Henderson v. Bowden, 737 So.2d 532 (Fla.1999), a sheriffs deputy arrested a drunk driver and thereafter directed the driver’s equally intoxicated passenger who was not in custody, to drive the vehicle to a nearby Circle K store to call his parents for a ride home. While operating the vehicle, this intoxicated driver had a collision with some trees, causing the deaths of two other passengers in the car. Like the County in this case, the Sheriff in Henderson argued that it owed no duty to the decedents because the operator of the car was not in its custody at the time of the collision. The court squarely rejected this argument and concluded that the Sheriffs deputies had placed the passengers of the car in danger by directing an intoxicated person to drive, and that this direction, more likely than not, created a foreseeable zone of risk giving rise to a legal duty. See 737 So.2d at 536. The Court further stated that:

... our holding today is not based on the fact that the passengers may or may not have been in the deputies’ custody. Rather, our decision is based on the fact that the deputies’ actions placed the passengers in danger.

Id.

Based upon the allegations contained in the second amended complaint, we agree with the appellants that the County police created a foreseeable zone of risk to innocent bystanders such as Mr. Brown, while they were implementing the sting operation at the hotel. As a result, they owed a duty to exercise reasonable care to avoid harm to such bystanders. Having determined that an actionable duty existed, we must now determine whether the County’s actions were nevertheless protected from suit under the doctrine of sovereign immunity.

Our supreme court has repeatedly held that governmental liability may exist when the act of the government or its agent is non-discretionary, but operational in nature. See Kaisner, 543 So.2d at 736 citing Avallone v. Bd. of County Comm., 493 So.2d 1002, 1005 (Fla.1986); Commercial Carrier v. Indian River County, 371 So.2d 1010 (Fla.1979). As used in this context, the court explained that the term “discretionary” means that the governmental act in question involved an exercise of executive or legislative power such that, for the court to intervene by way of tort law, it inappropriately would entangle itself in fundamental questions of policy and planning. See Kaisner at 737. An “operational” function, however, is one not necessary to or inherent in policy or planning, but merely reflects a secondary decision as to how those policies or plans will be implemented. Id.

Thus, in this case, we must determine whether the allegations in the second amended complaint regarding the officer’s actions are discretionary or operational in nature. We conclude that they are operational in nature, as the appellants are essentially claiming that their injuries were sustained by virtue of the manner in which the police implemented their sting operation. As such, the County is not immune from suit for its alleged failure to exercise reasonable care to safeguard innocent bystanders such as Lucious Brown while effectuating its police operations at the hotel. See Henderson v. Bowden, City of Pinellas Park v. Brown; City of Miami v. Hong-De La Cruz; Sams v. Oelrich, 717 So.2d 1044 (Fla. 1st DCA 1998); State Dept. of Highway Safety v. Kropff, 491 So.2d 1252 (Fla. 3d DCA 1986); Weissberg v. City of Miami Beach, 383 So.2d 1158 (Fla. 3d DCA 1980).

Our decision in Seguine v. City of Miami, 627 So.2d 14 (Fla. 3d DCA 1993) does not dictate a different result as urged by the County. In Seguine, the police decision sued upon involved the manner in which the police had attempted to arrest an alleged felon, who committed suicide during the process. There, we found the police’s decision as to what precautions, if any, to be employed to effectuate an arrest to be discretionary police functions for which there could be no tort liability. See 627 So.2d at 19 (stating that: “we think it best that such delicate law enforcement decisions be left to the discretionary judgment of the police without entangling the courts through our tort law in such fundamental law enforcement policies even where, as here, that judgment might in hindsight be arguably faulted either in whole or in part.”). Here, Lucious Brown was not an alleged target of the sting operation at the hotel and the police were not attempting to arrest him. Therefore, the challenged conduct in this case did not involve an officer’s discretionary conduct in making an arrest.

Thus, for all of the foregoing reasons, we reverse the order of dismissal and remand for further proceedings.

Reversed.

On Motion for Rehearing En Banc

PER CURIAM.

The motion for rehearing en banc is denied.

SCHWARTZ, C.J., and JORGENSON, GERSTEN, GREEN, FLETCHER, and SHEVIN, JJ., concur.

COPE, J. (dissenting from denial of rehearing en banc).

It appears to me that the panel opinion is contrary to part II of Trianon Park Condominium, Association, Inc. v. City of Hialeah, 468 So.2d 912, 919-20 (Fla.1985); Garcia v. Reyes, 697 So.2d 549 (Fla. 4th DCA 1997); and Seguine v. City of Miami, 627 So.2d 14 (Fla. 3d DCA 1993). Under Trianon, when and how to make an arrest is an immune function, lest legitimate law enforcement functions be chilled for fear of civil liability.

I.

The police department conducted a prostitution sting operation at a Howard Johnson Motel. The plaintiff was a guest. While returning to his room he came around a corner. A police officer yelled “Freeze,” and pointed a gun at the plaintiff. The plaintiff lost his balance, fell down, and suffered an injury.

The plaintiff sued the County for negligence. The trial court dismissed the complaint on the theory that either the County owed no duty to the plaintiff, or alternatively, that the police activity was an immune discretionary function for purposes of sovereign immunity.

The panel has reversed. Respectfully, the immunity doctrine is applicable here, and this court should affirm the dismissal.

As best I understand the plaintiffs position, it is that conducting a prostitution sting in a hotel creates a known dangerous condition on the premises and that the police had to issue some sort of general warning before conducting the sting. See Opinion at 416.

If I am reading this correctly, the plaintiff is saying that while doing a sting operation the police must set up some sort of perimeter around the hotel, presumably with barricades and yellow crime scene tape, before conducting the sting operation.

The essence of a sting operation, of course, is that it be kept secret from the target of the sting. The determination how to conduct the sting is pivotal to its success. The idea that there should be warnings posted, flyers distributed, barricades erected, and the like would defeat the police ability to conduct sting operations at all.

Ironically, the police officer in this case did warn the plaintiff to stay away from where the undercover operation was going on. What the plaintiff is really complaining about is not that there was a failure to warn — he was warned — but that the police officer startled him by yelling “Freeze.”

II.

The Florida Supreme Court in Trianon Park said:

How a governmental entity, through its officials and employees, exercises its discretionary power to enforce compliance with the laws duly enacted by a governmental body is a matter of governance, for which there never has been a common law duty of care. This discretionary power to enforce compliance with the law, as well as the authority to protect the public safety, is most notably reflected in the discretionary power given to judges, prosecutors, arresting officers, and other law enforcement officials ....

468 So.2d at 919 (emphasis added).

The Fourth District has addressed sting operations in Garcia v. Reyes, 697 So.2d 549 (Fla. 4th DCA 1997). Mr. Garcia had been the subject of a reverse sting operation in which it was found he had been entrapped. Garcia v. State, 582 So.2d 88 (Fla. 4th DCA 1991). He sued for damages because he had been in prison for thirty months before being freed. 697 So.2d at 549-50.

Relying on Trianon, the Fourth District ruled that there was no cause of action and that the claim was barred by sovereign immunity. Id. at 550-51 (citations and footnote omitted). The Fourth District concluded that immunity barred the claim, even though the police officers had used impermissible means in carrying out the sting operation.

In Everton v. Willard, 468 So.2d 936 (Fla.1985), the Florida Supreme Court said:

Our decision in this case is consistent with our holding in Wong v. City of Miami, 237 So.2d 132 (Fla.1970), in which we held that a governmental entity could not be held liable for damage caused during a riot, regardless of the fact that the city had removed police officers dispatched to guard against the damage. In that case we stated that the determination of strategy and tactics for the deployment of police powers was inherent in the right to exercise those powers. Id. at 134. We concluded by noting that “sovereign authorities ought to be left free to exercise their discretion and choose the tactics, deemed appropriate without worry over possible allegations of negligence.” Id. We reaffirmed that principle in our decision in Commercial Carrier, 371 So.2d at 1019-20.

468 So.2d at 939 (emphasis added).

III.

The panel opinion relies on seven cases for reversal. Opinion at 418. However, those cases all fall within several recognized exceptions to the discretionary immunity doctrine.

The panel relies heavily on Henderson v. Bowden, 737 So.2d 532 (Fla.1999), but it appears to me that the panel has misapprehended the rule set forth in that case. In Henderson, the police stopped a drunk driver. It was alleged that after arresting the driver, the police allowed an intoxicated passenger to drive the vehicle to a nearby Circle K convenience store and call his parents for a ride home. This individual drove the car away, crashed into trees, and two other passengers were killed.

The Henderson decision acknowledges that “the decision of whether to enforce the law by making an arrest is a basic judgmental or discretionary governmental function that is immune from suit.” Id. at 537 (emphasis added; citation omitted).

The important point about Henderson is this. Once the intoxicated driver was arrested, the discretionary when-and-how-to-arrest function had been completed. It then became an operational decision what to do with the vehicle and the passengers. The teaching of Henderson is, very simply, that once the DUI arrest has been made, the officers must use due care in the disposition of the motor vehicle and the passengers. In making this post-arrest operational decision, the officers are not allowed to relinquish the motor vehicle to a passenger to drive away, if the officers know, or in the exercise of due care, should know, that the passenger is intoxicated.

Applying Henderson to the ease now before us, the undercover officers were engaged in trying to accomplish an undercover arrest. The officer who encountered the plaintiff was trying — albeit abruptly and rudely — to keep hotel guests out of the area where the undercover operation was taking place. These activities were part of the discretionary function leading up to the making of the undercover arrest, and qualify for exemption under the sovereign immunity doctrine.

The panel relied on City of Pinellas Park v. Brown, 604 So.2d 1222 (Fla.1992), but it too is inapplicable. That was a high speed automobile chase which began when the offender ran a red light. The court held that the police must exercise due care when conducting a high speed motor vehicle chase on a public thoroughfare. Id. at 1225.

This result follows directly from Tria-non itself, which says:

The lack of a common law duty for exercising a discretionary police power function must, however, be distinguished from existing common law duties of care applicable to the same officials or employees in the operation of motor vehicles or the handling of firearms during the course of their employment to enforce compliance with the law.

Trianon, 468 So.2d at 920 (emphasis added). The City of Pinellas Park case is a simple application, or extension, of the motor vehicle rule already established in Trianon.

The panel opinion relied on City of Miami v. Hong-De La Cruz, 784 So.2d 475 (Fla. 3d DCA 2001), which reasoned that City of Pinellas Park should apply to a foot chase. The panel’s thought process was that if a police officer must use due care in operating a motor vehicle during a high speed automobile chase, then logically the police officer must use due care in a foot chase of a fleeing suspect. The Hong-De La Cruz foot chase has no discernible application to the making of an undercover arrest.

The panel opinion cites Sams v. Oelrich, 717 So.2d 1044 (Fla. 1st DCA 1998), but that case also involves an operational (not a discretionary) function. In Sams, the police had taken an inmate into custody after he had attempted an escape. Since the prisoner had been injured, the police took him to an emergency room at the local hospital. The officer failed to supervise the prisoner, who again escaped, ran for the exit, and struck Ms. Sams and her children, injuring them. Liability attached because the sheriff had operational responsibility to maintain control over his prisoner. Id. at 1048. The sheriff was deemed to have a special relationship and owe a duty to the others who were in the emergency room, who might be harmed if the prisoner again attempted an escape. This, too, is a case of post-arrest operational responsibility.

The panel opinion relies on State Department of Highway Safety v. Kropff, 491 So.2d 1252 (Fla. 3d DCA 1986). The law enforcement officer took charge of the scene of an auto accident in the nighttime, but did so negligently. An approaching vehicle struck the plaintiff. There was no sovereign immunity because the officer’s “actions in securing the scene were operational in nature....” Id. at 1255.

The panel opinion relies on Weissberg v. City of Miami Beach, 383 So.2d 1158 (Fla. 3d DCA 1980), another traffic case. An off-duty police officer was assigned to direct traffic while a telephone repair crew obtained access to telephone cables through a manhole located in a city intersection. The officer left his post and there was a collision in the intersection. Directing traffic was held to be an operational level activity, for which there was no sovereign immunity. Id. at 1159.

By contrast, the decision in Seguine v. City of Miami, 627 So.2d 14 (Fla. 3d DCA 1993) is similar to the present case, and supports the proposition that discretionary acts immunity applies here. In Seguine the police set out to arrest a mentally disturbed arrestee. When the police attempted the arrest, the arrestee jumped into a canal and drowned.

This court concluded that the decision how to make the arrest was a discretionary police function:

We think it best that such delicate law enforcement decisions be left to the discretionary judgment of the police without entangling the courts through our tort law in such fundamental law enforcement policies' — even where, as here, that judgment might in hindsight be arguably faulted either in whole or in part. Stated differently, the courts, through our tort law, ought not be involved in second-guessing the police as to how best to effect the arrest of an allegedly suicidal or mentally disturbed suspect; such a decision — even if arguably subject to possible criticism after the fact, as the plaintiff has done in this case — is best left to the political process to sort out, rather than entangling the courts in such fundamental law enforcement policies and thereby exposing the governmental entity involved to excessive tort liability.

Id. at 19.

Writing about an undercover operation, the federal Eighth Circuit said:

An undercover operation constitutes a “permissible means of investigation.” United States v. Russell, 411 U.S. 423, 432, 93 S.Ct. 1637, 1643, 36 L.Ed.2d 366 (1973). Because secrecy was an integral part of the undercover operation in this case, the FBI did not notify interested persons who might have jeopardized that operation with their knowledge. See Powers v. Lightner, 820 F.2d 818, 822 (7th Cir.1987) (Pell, J., concurring) (“[T]he Government’s role * * * in the undercover operation * * * had to be kept absolutely secret to preserve the sting’s success.”) Here, in developing a strategy to apprehend the retaggers, the FBI had to weigh the public concern for reducing widespread criminal activity against the harm to innocent victims resulting from a covert operation. See id. at 822. The FBI’s decision to maintain secrecy thus involved the balancing of policy considerations protected by the discretionary function exception.

Georgia Casualty and Surety Co. v. United States, 823 F.2d 260, 263 (8th Cir.1987) (citation omitted).

IV.

Making arrests is a core function of law enforcement. Generally speaking, law enforcement must make arrests when, and where, the arrestee can be found.

In conducting undercover operations, law enforcement can sometimes engage in advance planning, but the decision where and how to do an undercover operation is still largely constrained by the target. If the goal is to arrest persons who are engaged in prostitution in a particular hotel, then the undercover operation will need to be located in that hotel. If the target is hand-to-hand sales of narcotics, then the undercover operation must take place where those sales are conducted. If the target is someone engaged in selling large amounts of narcotics, the undercover transaction can be accomplished only where the target is willing to appear and deal.

The idea of the law enforcement exemption in this context is a sound one. Under this court’s decision in Seguine, the Fourth District’s decision in Garcia, and the Florida Supreme Court’s decisions in Everton and Trianon, the police selection of methods for carrying out an undercover sting operation fall into the immunity for discretionary acts.

For the stated reasons, I dissent from the denial of rehearing en banc.

LEVY, GODERICH and RAMIREZ, JJ., concur.

      . Henrietta Brown also brought a loss of consortium claim against the County.

      . Indeed, the County argued below that the police were attempting to preclude Mr. Brown from entering the area of the sting operation at the time of the incident which gave rise to this lawsuit.

      . The quoted passage states that there is a common law duty of care in the handling of firearms during the course of police work. The "handling of firearms" presumably refers to situations in which a firearm is discharged, thus causing injury.
      The plaintiff in this case has not argued that the "handling of firearms” exception in Tnation applies here, and rightly so. The firearm in this case was not fired.


author: PER CURIAM.

text:
    CFI SALES & MARKETING, LTD., Appellant, v. FLORIDA MARLINS BASEBALL, LTD., Appellee.
    No. 3D01-1789.
    District Court of Appeal of Florida, Third District.
    March 20, 2002.
    Rehearing and Rehearing En Banc Denied May 10, 2002.
    Greenspoon, Marder, Hirschfeld, Rafkin, Ross & Berger, P.A., and Michael E. Marder, Orlando, Myrna L. Maysonet (Ft.Lauderdale), for appellant.
    Akerman, Senterfitt & Eidson, P.A., and Christine L. Welstead, and Merrick L. Gross, and David E. Lancz, Miami, for appellee.
    Before GREEN and RAMIREZ, JJ. and NESBITT, Senior Judge.
   PER CURIAM.

On this appeal of a final judgment in a contract action, we find no abuse of discretion in the evidentiary challenges brought. Moreover, we conclude that the record contains substantial and competent evidence to support the trial court’s findings and we accordingly affirm as to the other issues without discussion. See Adkins v. Adkins, 650 So.2d 61, 62 (Fla. 3d DCA 1994) (stating that: “so long as there is sufficient evidence in the record to support the findings, we are required to affirm the final judgment appealed from James Driscoll, Inc. v. Gould, 521 So.2d 301 (Fla. 3d DCA 1988) (“where there is competent substantial evidence to support the trial court’s conclusions, reviewing court must affirm”).

Affirmed.


author: NESBITT, Senior Judge.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. Vanessa Lyn BROOKS and ABCO Premium Finance, Inc., Appellees.
    No. 3D01-2451.
    District Court of Appeal of Florida, Third District.
    Aug. 14, 2002.
    Rehearing and Certification Denied Feb. 5, 2003.

      Fowler White Burnett and Steven E. Stark and Patti A. Meeks and June Hoffman, for appellant.
    Sutton & Montoto and John R. Sutton, Coral Gables, for appellee Vanessa Lyn Brooks;
    Anania, Bandklayder, Blackwell, Baum-garten, Torricella & Stein and Douglas H. Stein, Miami, for appellee ABCO Premium Finance, Inc.
    Before GODERICH and GREEN, JJ., and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

Insurer United Automobile Insurance Company appeals a Final Summary Judgment Declaring Coverage for insured, Vanessa Lyn Brooks. This is a premium finance case in which premium finance company, ABCO Premium Finance, Inc., notified insurer United of the cancellation of insurance because of the non payment of the May 2000, installment. The cancellation was effective 12:01 a.m. on May 31, 2000, and the insured’s automobile was in an accident later the same day.

The insurer relies on section 627.848(l)(f), which provides:

If an insurance contract is canceled by an insurer upon the receipt of a copy of the cancellation notice from a premium finance company, and if such premium finance company has failed to provide the notice required by this subsection, the insured shall have a cause of action against the premium finance company for damages caused by such failure to provide notice. (Emphasis added.)

Supporting its position, the insurer cites to Bamboo Garden of Orlando, Inc. v. Oak Brook Prop. & Cas. Co., 773 So.2d 81, 83-84 (Fla. 5th DCA 2000), wherein the Fifth District observed that the legislature’s intent in enacting this section was to ease the burden on insurance companies, while at the same time providing a mechanism for recovery by insureds for a failure of notice.

In the instant case, there had been an error in the recorded address of insured, which the insured thereafter brought to her agent’s attention. The insurer had corrected its own records, but apparently did not notify the finance company of this correction. While informed by her agent that payment had to be made or the policy would be canceled, Brooks never received notice of cancellation from the finance company at her correct address. Faced with an insurer which knew insured’s correct address and a finance company which did not, the trial court concluded that the insurer should be equitably estopped from denying coverage. However, as succinctly stated on a number of occasions:

while the doctrine of estoppel may be used to prevent a forfeiture of insurance coverage, the doctrine may not be used to create or extend coverage.

State Farm Mut. Auto. Ins. Co. v. Jones, 789 So.2d 504, 507 (Fla. 1st DCA 2001); see Tradewinds Constr. v. Newsbaum, 606 So.2d 708 (Fla. 1st DCA 1992); Criterion Leasing Group v. Gulf Coast Plastering & Drywall, 582 So.2d 799, 800 (Fla. 1st DCA 1991); see also 31 Fla. Jur 2d Insurance § 2851 (2002). Here, what the trial judge did amounted to an extension of the policy. Thus, the order granting summary judgment as to coverage is reversed, with instructions that on remand, United’s motion for summary judgment should be granted. As provided in section 627.848(l)(f), Brooks' has a cause of action against ABCO for damages caused by any failure to provide statutorily required notice.

Reversed and remanded.

      . It appears that the parties stipulated that there were no disputed issues of material fact. However the finance company maintains it was not on notice of insured's correct address, while the agent testified:
      Q. So you notified the insurance company, as well as the finance company that her [Brooks’s] address was wrong?
      A. That's correct.


author: WARNER, J. WARNER, J.

text:
    N.C., a child, Petitioner, v. Perry ANDERSON, South Regional Circuit Manager, Department of Juvenile Justice, Respondent.
    No. 4D02-2810.
    District Court of Appeal of Florida, Fourth District.
    Sept. 18, 2002.
    Order Denying Rehearing Feb. 26, 2003.

      Alan H. Schreiber, Public Defender, and Debra A. Bookout, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Robert A. Butterworth, Attorney General, Tallahassee, and Donna M. Hoffmann, Assistant Attorney General, West Palm Beach, for respondent.
    Charlie Crist, Attorney General, Tallahassee, and Donna M. Hoffman, Assistant Attorney General, West Palm Beach, for respondent on motion for rehearing.
   WARNER, J.

A juvenile petitions for habeas corpus relief after the trial court denied her motion to terminate the Department of Juvenile Justice’s aftercare program for her. She alleged the court did not orally pronounce aftercare, even though it was included in the written disposition order. We deny the petition.

After violating her probation on a misdemeanor battery adjudication, the juvenile came before the court for disposition. The judge committed her to a level six residential treatment program but did not verbally order conditional release to follow. However, the written delinquency disposition order required the child to be placed on conditional release upon completion of the commitment program. She appealed her disposition, during which her attorney filed a motion to correct the disposition because a misdemeanor adjudication did not qualify for level six treatment. The court agreed and entered a new disposition order, which included an order for po-stcommitment conditional release. The appeal was then voluntarily dismissed.

Upon completing the commitment program, the juvenile filed a motion to terminate aftercare on the ground that the court never orally pronounced aftercare or conditional release. She relied on L.S. v. Department of Juvenile Justice, 779 So.2d 633, 635 (Fla. 1st DCA 2001), for the proposition that conditional release or aftercare needed to be orally pronounced at sentencing in order to be included in the written disposition. However, L.S. is distinguishable where aftercare was neither included in the written order of disposition nor orally pronounced by the trial judge. Thus, the first district concluded the aftercare was not validly ordered.

Florida Rule of Juvenile Procedure 8.115 provides for disposition hearings. Nowhere in the rule is oral pronouncement of the disposition required, as compared to Florida Rule of Criminal Procedure 3.700(b). At a juvenile disposition hearing, the court may receive information and reports which may assist it in making the disposition determination. It then is required to prepare a disposition order which the clerk distributes to the child and other participants at the hearing. See Fla. R. Juv. P. 8.115(c). The rules of juvenile procedure do not require the court to pronounce the disposition in court. In this respect, juvenile disposition is quite different than adult sentencing where the oral pronouncement is the sentence. In juvenile proceedings, the written disposition order is the disposition. Therefore, having included conditional release as part of the disposition order, the court properly denied the juvenile’s motion to terminate aftercare.

We recognize that many cases have suggested disposition orders are required to conform to the oral pronouncement. See A.L. v. State, 790 So.2d 1149, 1150 (Fla. 2d DCA 2001); S.D.W. v. State, 746 So.2d 1232, 1234 (Fla. 1st DCA 1999); C.A. v. State, 685 So.2d 1036, 1037 (Fla. 3d DCA 1997); T.A.R. v. State, 640 So.2d 222, 222 (Fla. 5th DCA 1994); L.M. v. State, 610 So.2d 1314, 1317 (Fla. 1st DCA 1992). In reaching their results, those cases either cited to cases involving adult sentencing or to no authority at all.

Finally, even if it was error not to conform the written disposition order to the oral pronouncement, Rule 8.135(b) provides for a procedure and a period of time to correct such error, which this juvenile used to reduce the level of commitment. Once that period passes, the rule provides only for correction of an illegal disposition. We have held in adult sentencing that failure of the written sentence to conform to the oral pronouncement is not an error rendering the sentence illegal. See Campbell v. State, 718 So.2d 886, 886 (Fla. 4th DCA 1998). Therefore, the juvenile would not be entitled to relief for an illegal disposition as she did not timely challenge what, at most, is a disposition error.

For these reasons we deny the petition.

KLEIN and MAY, JJ., concur.

ON MOTION FOR REHEARING

WARNER, J.

We deny the motion for rehearing. Petitioner contends that failing to require oral pronouncement of the disposition violates due process, citing to State v. Williams, 712 So.2d 762, 764 (Fla.1998), and Justice v. State, 674 So.2d 123, 125 (Fla.1996). However, in each of those cases the supreme court acknowledged that the preference of the oral imposition of sentence over the written order was a matter of judicial policy. See id. It is not constitutionally compelled. Indeed, in Hill v. U.S. ex rel Wampler, 298 U.S. 460, 464, 56 S.Ct. 760, 80 L.Ed. 1283 (1936), Justice Cardozo stated “[t]he only sentence known to the law is the sentence or judgment entered upon the records of the court.”

In Justice, the supreme court addressed the question of whether special conditions of probation must be orally stated at sentencing. The court noted,

The requirement that special conditions of probation be pronounced in open court at the time of sentencing arises in part from Florida Rule of Criminal Procedure 3.700(b), which mandates that the sentence or other final disposition ‘shall be pronounced in open court.’ The requirement also addresses due process concerns that a defendant have notice and an opportunity to object. See generally Olvey v. State, 609 So.2d 640 (Fla. 2d DCA 1992).

674 So.2d at 125. In Olvey, the court did suggest that oral pronouncement of the sentence was necessary to allow the defendant the opportunity to object contemporaneously and preserve the issue for appeal. However, at the time Olvey was decided, Rule 3.800 did not permit a post-sentence motion to correct a sentencing error. That provision was not added until 1996. Due process is satisfied by preserving a defendant’s opportunity to object to a sentence through filing a motion to correct a sentencing error. See Fla. R.Crim. P. 3.800(b).

Similarly, under Florida Rule of Juvenile Procedure 8.135(b) a juvenile may object to a disposition order by filing a motion to correct. Therefore, the juvenile’s due process rights are preserved, not only by permitting the juvenile to present information and argument to the court at the disposition hearing, but also by moving to correct a disposition when actually entered.

We certify conflict, however, with A.L. v. State, 790 So.2d 1149, 1150 (Fla. 2d DCA 2001); S.D.W. v. State, 746 So.2d 1232, 1234 (Fla. 1st DCA 1999); C.A. v. State, 685 So.2d 1036, 1037 (Fla. 3d DCA 1997); T.A.R. v. State, 640 So.2d 222, 222 (Fla. 5th DCA 1994); and L.M. v. State, 610 So.2d 1314, 1317 (Fla. 1st DCA 1992).

KLEIN and MAY, JJ., concur.

      . Although the child is no longer in a residential commitment, actual incarceration is not required for habeas relief, as long as the conditions of release constitute significant restraints on the child’s liberty. See Sellers v. Budges, 153 Fla. 586, 15 So.2d 293, 294 (1943).

      . Aftercare is a form of probation. The terms "aftercare,” “conditional release” and "postcommitment probation” appear to be interchangeable. In 2000, the Legislature amended section 985.231 (l)(a) 1., substituting "conditional release” for "aftercare.” See Ch. 2000-135, § 31, Laws of Fla. In 2001, subsection (l)(a)l was again amended. Following "postcommitment probation,” the legislature deleted "or conditional release supervision.” See Ch. 2001-125, § 24, Laws of Fla.

      . When the Florida Rules of Criminal Procedure were adopted in 1968, Rule 3.700 was included as a rewrite of section 921.05, Florida Statutes (1966), which required the pronouncement of a sentence in open court. See Washington v. Mayo, 77 So.2d 620, 622 (Fla.1955).


text:
    Pedro DELSOL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1574.
    District Court of Appeal of Florida, Third District.
    Sept. 25, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 12, 2003.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Robert A. Butterworth, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and SORONDO, JJ.
   PER CURIAM.

The defendant, Pedro Delsol, appeals his final judgment of conviction for the crimes of burglary of an occupied dwelling and grand theft in the third degree and his sentence as a violent career criminal. Finding no merit in defendant’s arguments concerning either his conviction or sentence, we affirm.

We affirm the conviction without discussion. As concerns the sentence, the state sought to have the defendant adjudicated and sentenced as a violent career criminal under section 775.084, Florida Statutes (1999). The state introduced certified copies of defendant’s prior criminal record which consisted of three convictions for possession of cocaine, one conviction for burglary of a dwelling, three convictions for burglary of a conveyance, one conviction for attempted burglary of a conveyance, and one conviction for burglary with an assault.

Defense counsel argued that other than the one burglary with an assault, the prior convictions were all of unoccupied structures and, therefore, since the burglaries were not violent those offenses could not be considered forcible felonies under the statute and as a result, the defendant could not be sentenced as a violent career criminal under the Gort Act. For the reasons set forth in Rodriguez v. State, No. 02-1479, 826 So.2d 464(Fla. 3d DCA 2002), we disagree.

Affirmed.

GODERICH and SORONDO, JJ., concur.

SCHWARTZ, Chief Judge (dissenting in part).

Applying the rule of lenity, as we must, Rodriguez v. State, 773 So.2d 1222 (Fla. 3d DCA 2000), review denied, 817 So.2d 850 (Fla.2002), and the maxim of noscitur a sociis, as we should, see Ex parte Amos, 93 Fla. 5, 112 So. 289 (1927), I believe that because all of the crimes listed in section 776.08 are of a violent nature, and its last sentence refers to “any other [e.s.] felony which involves the use or threat of force against any individual,” the burglary referred to must be restricted to one involving violence.

On that basis, I would reverse the violent career criminal sentence imposed on the defendant.

      . Section 776.08, Florida Statutes (1997), provides:
      776.08 Forcible felony. — "Forcible felony" means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual.


author: TAYLOR, J.

text:
    Victor ALFARO, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-997.
    District Court of Appeal of Florida, Fourth District.
    Sept. 25, 2002.
    Rehearing Denied Feb. 26, 2003.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Robert A. Butterworth, Attorney General, Tallahassee, and Gary K. Milligan, Assistant Attorney General, Fort Lauder-dale, for appellee.
   TAYLOR, J.

Victor Alfaro appeals his judgments of conviction for grand theft of a motor vehicle and criminal mischief. We affirm appellant’s criminal mischief conviction but reverse the grand theft auto conviction because the court erred in excluding a non-hearsay statement concerning ownership of the vehicle. We find, however, that the trial court did not commit fundamental error in fading to give a “claim of right” instruction which was not requested by appellant.

On December 27, 1999, a brown Dodge Caravan owned by Hernán Iberti was stolen from a 7-Eleven convenience store parking lot. Iberti had left the keys in the van while he went into the store to buy cigarettes. He did not see who stole his van.

Approximately two weeks later, Christopher Robertson and James White were standing outside of a 7-Eleven store on State Road 84 when they saw Iberti’s van drive into the garage door of a Texaco station across the street. The garage’s alarm was activated upon impact. The witnesses then observed the van back out, pull out of the parking lot, and drive down State Road 84. The van made a U-turn, pulled into the parking lot of the 7-Eleven, and then left shortly thereafter. Robertson and White obtained the license plate number of the van.

The police responded to the alarm. While Robertson and White were explaining what they had observed to the police, they saw the van drive by again. The police pulled the van over and the witnesses identified appellant as the driver of the van. The passenger was identified as Levit Marmolejos. When the police asked appellant for his license and registration, he could not produce them. Appellant gave the officer different names and different dates of birth. When asked who owned the van, appellant said that he did not know. When asked where he got the van, appellant could not offer an explanation. The officers ran the serial number and discovered that the van had been reported stolen. Appellant then said he could not speak English. A translator was called to the scene, and appellant was arrested for grand theft of a motor vehicle, having no driver’s license, resisting arrest without violence, and criminal mischief.

At trial, appellant testified in his own defense. He stated that he believed the van belonged to the passenger, Levit Mar-molejos, and that he was driving it when he was pulled over because Marmolejos was drunk. Appellant explained that he had met Marmolejos at a nearby hotel. Appellant was staying at the hotel and Marmolejos was living in the van in the hotel’s parking lot. Marmolejos asked appellant to use his shower. According to appellant, Marmolejos had given him a ride in the van a few times before because appellant did not have a car.

Appellant testified that on the date of his arrest, he saw Marmolejos at the hotel and asked him for a ride to the 7-Eleven. Because Marmolejos was drunk, appellant decided to drive them back to the hotel. He was stopped by the police on the return trip.

Appellant called one other witness, Edward Jorgensen, a neighbor of appellant’s in-laws, who had known appellant for over fifteen years. Jorgensen testified that the day before appellant’s arrest, appellant came to see his daughter. Marmolejos drove the van to his house, with appellant seated in the passenger seat. Appellant introduced Marmolejos as a friend who gave him a ride over to see his daughter. When Jorgenson began to testify that Marmolejos told Jorgensen that he owned the van, the prosecutor objected on hearsay grounds. Appellant responded that he was not offering this evidence for the truth of the matter but to show that appellant did not know that the van he was driving was stolen. He proffered Jorgenson’s testimony that Marmolejos said he was the owner of the vehicle. The trial court sustained the objection and excluded this testimony.

During the jury charge conference, appellant neither objected to the jury instructions nor requested the court to instruct the jury on his good faith defense to the theft charge. On appeal, he argues that failure to instruct the jury on a good faith defense was fundamental error. Appellant cites Chalmers v. State, 789 So.2d 1057 (Fla. 4th DCA 2001), as authority. However, Chalmers is distinguishable from this case. There, the defendant had been hired to supervise a roofing job for the victim. When a dispute arose over payment, the defendant removed the victim’s trailer and tools to an undisclosed location. He was charged with theft. At trial, he testified that he had a joint interest in some of the tools and that he was entitled to hold the property until the victim paid him. His attorney failed to request a claim of right instruction or object to its omission. We held that failure to give a claim of right defense instruction, even if error, did not prejudice the defendant because he claimed that the state had failed to prove that the victim was the owner of the property, not that he had a good faith belief that he had a right to the property. The defendant did not argue that he had a good faith belief that he had an interest in the trailer and tools, other than those tools claimed to be purchased with joint funds.

Although we found no prejudicial error in Chalmers, we recognized the holdings of other courts that when the defense has properly asserted a claim of right defense, then failure of the trial court to instruct the jury regarding such defense, even absent a request for a claim of right instruction or objection to its omission, constitutes fundamental error. Id. at 1058 (citing Howard v. State, 561 So.2d 1362, 1362 (Fla. 3d DCA 1990); Tobey v. State, 533 So.2d 1198, 1200 (Fla. 2d DCA 1988); Thomas v. State, 526 So.2d 183, 184 (Fla. 3d DCA 1988)). We take this opportunity to clarify that we do not adopt these holdings, as we believe that they are in conflict with the Florida Supreme Court’s decision in Sochor v. State, 619 So.2d 285, 290 (Fla.1993).

In Sochor, the defendant claimed that the trial court committed fundamental error by failing to instruct the jury on voluntary intoxication as a defense to felony murder based on kidnaping. Id. The supreme court disagreed, holding:

Fundamental error is error which goes to the foundation of the case. Failure to give an instruction unnecessary to prove an essential element of the crime charged is not fundamental error. Voluntary intoxication is a defense to, but not an essential element of, kidnaping. Because the complained-of instruction went to Sochor’s defense and not to an essential element of the crime charged, an objection was necessary to preserve this issue on appeal.

Id. (Citations omitted).

A good faith belief in one’s right to possession of property is a defense to the charge of theft. Rodriguez v. State, 396 So.2d 798, 799 (Fla. 3d DCA 1981). Based on Sochor, appellant was required to request an instruction on his claim of right defense or object to its omission in order to preserve this issue for appeal. The instruction went to appellant’s defense and not to an essential element of theft. Thus, no fundamental error occurred. See Muteei v. State, 708 So.2d 626 (Fla. 3d DCA 1998)(rejecting Thomas and following So-chor in holding that failure to give self-defense instruction did not amount to fundamental error where instruction went to defense, not to essential element of attempted murder charge).

Appellant also argues that the trial court erred in excluding non-hearsay testimony concerning ownership of the stolen van. Jorgensen was prepared to testify that Marmolejos told Jorgensen, presumably in the presence of appellant, -that he was the owner of the van.

We agree that this testimony was not hearsay because it was not offered for the truth of the matter asserted but to show that, having heard the statement, appellant had a good faith belief that Mar-molejos owned the van and that he had lawful permission to drive it. See Koon v. State, 513 So.2d 1253 (Fla.1987)(testimony of Secret Service agent that federal magistrate had stated in defendant’s presence that charge would have been dismissed against him had there been only one witness was not hearsay, and was admissible not to show truth of statement but rather to show that having heard the statement, defendant could have formed a motive for murdering one of two prosecution witnesses); King v. State, 684 So.2d 1388 (Fla. 1st DCA 1996)(holding that an out-of-court statement by a third party, offered to show that the defendant had no reason to believe that the check he passed was forged, was not inadmissible hearsay). This statement would have been used to disprove the element of intent required to prove theft. As this testimony was proffered in support of appellant’s only defense, we cannot conclude that the error in excluding it was harmless.

Based upon the foregoing discussion, we reverse appellant’s conviction and sentence for grand theft of a motor vehicle and remand for a new trial on that charge.

AFFIRMED in part, REVERSED in part, and REMANDED.

POLEN, C.J. and STEVENSON, J. concur.


author: ALTENBERND, Judge.

text:
    Patrick D. SAUNDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D02-288.
    District Court of Appeal of Florida, Second District.
    Sept. 27, 2002.
    Rehearing Denied Feb. 12, 2003.
    Patrick D. Saunders, pro se.
    Robert A. Butterworth, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Patrick Saunders petitions this court for a writ of prohibition alleging that the trial court lacks jurisdiction over the violation of probation pending against him because he has not been timely brought to hearing. Mr. Saunders seeks dismissal of the violation affidavit and the related detainer. We deny the petition with prejudice.

Mr. Saunders was placed on probation for possession of cocaine in 1991. He was subsequently convicted of federal charges and sentenced to federal prison. In 1994, while Mr. Saunders was serving his federal prison sentence, a Florida detainer was placed on him for violating his probation in the cocaine case. Mr. Saunders alleges that he moved the trial court to allow him to resolve the violation of probation in 1994,1997, and 2000, all to no avail.

Athough we are sympathetic to Mr. Saunders’ situation, we deny the petition because we know of no mechanism by which he can force the trial court to timely dispose of the violation of probation nor does the trial court’s failure to have done so deprive it of jurisdiction. Neither the speedy trial rule nor the Interstate Agreement on Detainers applies to a violation of probation. See Gonzalez v. State, 447 So.2d 381 (Fla. 3d DCA 1984); Irby v. State, 427 So.2d 367 (Fla. 2d DCA 1983). Nor does the probation statute afford any relief to a prisoner against whom a detain-er has been lodged but who has not been arrested for the violation of probation. See § 948.06(4), Fla. Stat. (2001) (providing that a probationer who has been arrested for a violation of probation shall be given a hearing as soon as practicable).

Petition denied with prejudice.

CASANUEVA and STRINGER, JJ., Concur.


text:
    AMERICAN EXPRESS TRAVEL RELATED SERVICES, CO., INC., Appellant, v. SYMBIONT SOFTWARE GROUP, INC., et al., Appellees.
    No. 3D01-2953.
    District Court of Appeal of Florida, Third District.
    Oct. 9, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 5, 2003.
    Heimberg & Lumer and Joel V. Lumer, Miami, for appellant.
    Elvira Gonzalez (Miramar); Ferencik Libanoff Brandt & Bustamante and Sandra Kennedy (Plantation), for appellees.
    Before SCHWARTZ, C.J, and GODERICH and FLETCHER, JJ.
   PER CURIAM.

American Express Travel Related Services Company, Inc. [American Express] appeals the dismissal, based on the economic loss rule, of its complaint against Symbiont Software Group, Inc. [Symbiont] and David Schilling. For the reasons which follow, we reverse.

American Express sued Symbiont for negligent hiring and retention, and sued its president Schilling for negligent security in connection with the theft of the financial information of American Express members by Symbiont’s former employee, David Prouty. Symbiont sold to retail and service establishments point-of-sale systems (used for payment by charge cards such as American Express). In its complaint, American Express alleges that Symbiont gave Prouty access to confidential financial information stored on its systems, notwithstanding actual or constructive notice of Prouty’s lack of fitness for employment. According to American Express, Symbiont’s failure to properly secure its system resulted in financial losses to American Express when Prouty stole and misused the financial information of its members. Symbiont and Schilling successfully moved to dismiss American Express’ complaint based on the economic loss rule.

The economic loss rule bars claims in tort where there is no personal injury or damage to other property. Casa Clam Condominium Ass’n v. Charley Toppino & Sons, Inc., 620 So.2d 1244 (Fla.1993); Clayton v. State Farm Mut. Auto. Ins. Co., 729 So.2d 1012 (Fla. 3d DCA 1999). The rule is premised on “the basic difference between contract law, which protects expectations, and tort law, which is determined by the duty owed to an injured party.” Casa Clara, 620 So.2d at 1246. For this reason, an exception has been carved out for tort actions which are independent of any contractual breach. PK Ventures, Inc. v. Raymond James & Assocs., 690 So.2d 1296 (Fla.1997); HTP, Ltd. v. Lineas Aereas Costarricenses, S.A., 685 So.2d 1238 (Fla.1996); Clayton v. State Farm. In this case the claims pled were totally independent of any contracts which may have existed between Symbiont and any of the buyers or users of their point-of-sale systems.

Accordingly, we reverse the dismissal of appellant’s complaint and remand the cause for further proceedings.

Reversed and remanded.


text:
    Alfonzo D. PONTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-900.
    District Court of Appeal of Florida, Third District.
    Oct. 16, 2002.
    Rehearing Denied Feb. 12, 2003.
    Alfonso D. Ponton, in proper person.
    Robert A. Butterworth, Attorney General, and Steven R. Berger, Assistant Attorney General, for. appellee.
    Before JORGENSON, GODERICH, and GREEN, JJ.
   PER CURIAM.

Defendant appeals from the denial of his motion for postconviction relief relating to three separate cases from 1982. We affirm. Defendant has to date filed at least thirty-eight postconviction motions and petitions in state court alone; all of those have been unsuccessful. A string citation of all of the decisions would itself fill two entire pages.

We affirm the denial of the motion as successive and as an abuse of process. The defendant is hereafter prohibited from filing any additional pro se appeals, including pleadings, motions, and petitions relating to any issue in Lower Tribunal cases F81-27294, F81-28089, and F81-25758. Any further pleadings, motions, or petitions in those cases must be reviewed and filed by an attorney. See Ali v. State, 729 So.2d 963 (Fla. 3d DCA 1999).

We caution defendant that disregard of this prohibition could further result in forfeiture of all or part of his gain time. See Duncan v. State, 728 So.2d 1237 (Fla. 3d DCA 1999); § 944.28(2)(a), Fla. Stat. (2001).

AFFIRMED.


author: RAMIREZ, J.

text:
    Emilio DIAZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-1647.
    District Court of Appeal of Florida, Third District.
    Nov. 13, 2002.
    Rehearing or Rehearing En Banc Denied Feb. 12, 2003.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Richard E. Doran, Attorney General, and Michael Neimand, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Emilio Diaz appeals his judgment of conviction and sentence for burglary of an occupied dwelling. We affirm his conviction and sentence.

The owner of Florida Leather Supply testified that when he arrived at work in the early morning hours of September 3, 1999, he heard the sound of glass breaking. He observed Diaz enter his business and attempt to take a computer located a foot from the front door. When he yelled, Diaz ran away. The owner fell on the broken glass, but recovered a red tote bag from outside the door that contained a photograph of Diaz. The owner identified Diaz at trial.

Diaz argues that the trial court committed fundamental error by instructing the jury that the intent necessary to commit a burglary could be formed at the time of “entering and/or remaining at the structure.” He relies on the Florida Supreme Court cases of Delgado v. State, 776 So.2d 233 (Fla.2000) and Floyd v. State, 27 Fla. L. Weekly S697, — So.2d -, 2002 WL 1926223 (Fla. August 22, 2002), as well as the Fifth District case of Valentine v. State, 774 So.2d 934 (Fla. 5th DCA 2001). We disagree because under the facts of our case the “remaining in” language may be viewed as mere surplusage. See Johne- kins v. State, 823 So.2d 253 (Fla. 3d DCA 2002).

Diaz next complains of opinion testimony elicited from a police detective that fingerprints are not necessary where there is a positive identification made by the victim. A better question would have been whether the burglary unit dusts for fingerprints when the perpetrator leaves his photographic identification behind. But any error in allowing this testimony was clearly harmless.

Finally, Diaz assigns error in his sentence as a violent career criminal when his prior convictions were all for burglaries of unoccupied structures. We find the argument persuasive for the reasons stated in Chief Judge Schwartz’s dissent in Delsol v. State, 837 So.2d 428, (2002), but we are bound by the results in that case and therefore affirm.

Affirmed.

      . We trust that the Office of the Public Defender will need no encouragement to file a motion for rehearing en banc of this issue.


author: STONE, J.

text:
    Donna RAZNER, Appellant, v. WELLINGTON REGIONAL MEDICAL CENTER, INC., a Florida corporation; Christy Simmers; and Pam Thomas, Appellees.
    Nos. 4D01-1849, 4D01-2450.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Feb. 25, 2003.

      Isidro M. Garcia of Garcia, Elkins & Boehringer, P.A., West Palm Beach, for appellant.

      Nancy W. Gregoire and Matthew D. Klein of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre & Gregoire, P.A., Fort Lauderdale, for appellees.
   STONE, J.

Razner appeals a final summary judgment entered in favor of Wellington Regional Medical Center, Inc. (Wellington), Christy Simmers, and Pam Thomas, individually, on Razner’s claims of employment discrimination and defamation. Although Razner voluntarily left her employment, she claims she was constructively discharged because her employer and immediate supervisor perceived her as an alcoholic and treated her accordingly. The defamation claim arose from statements made by Simmers and Thomas in response to reports that Razner was intoxicated at work. We affirm.

Razner began working at Wellington in 1988 as an ultrasound sonographer. Simmers became her supervisor in 1993, and their relationship deteriorated quickly. Between 1995 and 1996, at a meeting to discuss Simmers’ policy of cutting the amount of guaranteed overtime, Razner and Simmers engaged in a heated dispute. Simmers refused to change her policy and warned Razner that she did not want to make an enemy of her. Razner acknowledges that this meeting had nothing to do with an alcohol test she was required to take in 1997.

The first time Simmers mentioned anything about alcohol was in March 1997, when she reprimanded Razner after a nurse in the emergency room reported that Razner’s breath smelled of alcohol and her speech was slurred. Although she denied being impaired, Razner admitted to having had an alcoholic drink while she was on-call that evening. Simmers warned her that the next time she was suspected of being under the influence of alcohol at work, she would have to take a blood test. Wellington’s hospital policies and procedures mandate that a drug or alcohol test be given when there is “reasonable suspicion” someone appears or smells intoxicated on the job. The person who receives the results and the managers are authorized to disclose the information on a “need-to-know” basis.

Three months later, in July of 1997, Razner was again accused of being intoxicated on the job. This time, Thomas, who was filling in for Simmers, asked Razner to take a blood alcohol test. Razner returned to work but was told she had been placed on paid administrative leave pending the results of the test. In the meantime, Thomas asked Jeanne Englishby to cover Razner’s shift for that day. En-glishby asked why Razner could not take the shift and Thomas told her Razner was on leave pending the results of the blood alcohol test because she had “appeared intoxicated.” When Englishby called Raz-ner, Razner told her what had happened.

Englishby also called Simmers to find out if she could be relieved from covering Razner’s weekend shift. In explaining why she was being asked to fill in, Simmers revealed that Razner had “appeared intoxicated” and was “under suspicion of being intoxicated when she came to work.” Simmers also told Englishby that “they had given her a blood alcohol test.”

The following day, when it was confirmed that the results of the blood test were negative, Razner was asked to resume her weekend shift. Although there is evidence that no other employee had been given a blood test under these circumstances, there is also no evidence that there were others who had been reported for suspected alcohol or drug use.

Joan Jones, the nursing supervisor, asked Englishby if she would sign a piece of paper stating that she also smelled alcohol on Razner’s breath, but Englishby refused to sign. The next day, Simmers called Englishby into her office to ask her why she had not signed the statement. Simmers said she was concerned about Razner as she was continuously written up for suspicion of alcohol and other problems unrelated to her alcohol use. Simmers told Englishby she thought Razner was an alcoholic, that Razner “had a drinking problem,” and “had been doing the job for too long and she needed to retire.” Although Englishby eventually signed the statement, there is no evidence that the proposed statement was shown to anyone.

Englishby described Simmers as exhibiting a “hostile demeanor” toward Razner from the time Razner started working for Simmers but did not attribute Simmers’ dislike of Razner to any problem with alcohol. Englishby never heard Simmers tell anyone else that she believed Razner was an alcoholic. In fact, all of the conversations or gossip she heard were about Raz-ner being tested for alcohol or someone having smelled alcohol on her breath.

Although there were no further instances of Razner’s drinking or references to her being an alcoholic, the animosity between Razner and Simmers continued to grow. A few months before Razner submitted her resignation, the two engaged in a bitter exchange. In front of patients and staff, Razner complained to Simmers that she could not handle the volume of patients being scheduled during her shift. Simmers bluntly told her that if she could not handle it, she would happily accept her resignation. That night, Razner began looking for another job. A few days later, when she was hired by another hospital, Razner submitted her resignation. Raz-ner did not believe that the over scheduling was intentional or that she was the only sonographer who complained about the high volume of patients.

Razner’s third amended complaint alleged that the actions of Wellington, Simmers, and Thomas constituted handicap discrimination and defamation. Count I alleged that Wellington had violated the Florida Civil Rights Act because it regarded her as an alcoholic and had created a hostile work environment based on that erroneous perception. The remaining counts, II, III, and IV, were against Wellington, Simmers, and Thomas, respectively, and alleged defamation. The trial court entered summary judgment for Appellees on all counts.

We conclude that summary judgment was properly entered against Razner as there are no genuine issues of fact and the appellees are entitled to judgment as a matter of law. See Wills v. Sears, Roebuck & Co., 351 So.2d 29 (Fla.1977); Fla. R. Civ. P. 1.510(c).

When reviewing a claim of adverse employment action based on handicap discrimination, courts construe the Florida Civil Rights Act of 1992 (FCRA) in accordance with the Americans with Disabilities Act, 42 U.S.C., § 12101 et seq. (ADA) and related regulations. See Tourville v. Securex, Inc., 769 So.2d 491, 492 n. 1 (Fla. 4th DCA 2000); McCaw Cellular Communications of Fla., Inc. v. Kwiatek, 763 So.2d 1063, 1065 (Fla. 4th DCA 1999); Greene v. Seminole Elec. Coop., Inc., 701 So.2d 646, 647 (Fla. 5th DCA 1997). The FCRA prohibits an employer from discriminating against an employee based on a handicap, unless the absence of the handicapping condition is necessary based on a bona fide occupational qualification. § 760.10(l)(a), (8)(a) Fla. Stat. (2001).

Claims made under the FCRA or ADA usually pertain to an employer’s discriminatory practice in hiring, firing, or promoting an employee. When, as here, it is alleged that the handicap discrimination by the employer amounts to harassment, we have previously held that the claim is analyzed in accordance with Title VII hostile work environment cases. Kwiatek, 763 So.2d at 1065. To survive summary judgment on a claim of harassment based on handicap discrimination, the plaintiff must show that she or he: (1) is a qualified individual with a disability under the ADA; (2) was subject to unwelcome harassment; (3) the harassment was based on his or her disability; (4) the harassment was sufficiently severe or pervasive to alter the conditions of his or her employment and to create an abusive working environment; and (5) that the employer knew or should have known of the harassment and failed to take prompt and effective remedial ac-' tion. Id. at 1066.

Here, summary judgment was proper where Razner failed to establish she was handicapped under the FCRA.

While the FCRA does not define the word “handicap,” the Fifth District has looked to the Fair Housing Act which gives the term, for purposes of this case, the following meaning:

A person has a physical or mental impairment which substantially limits one or more major life activities, or he or she has a record of having, or is regarded as having, such physical or mental impairment....

§ 760.22(7)(a), Fla. Stat. (2001); see Greene, 701 So.2d at 648 (applying Fair Housing Act’s definition of “handicapped” to overrule trial court’s dismissal of claim because court erroneously found that FCRA only protected persons with actual, rather than perceived, disabilities). Applying that definition, a person who has no impairment at all, but is regarded by the employer as having a substantially limiting impairment, may recover for discrimination. Id. at 647; see also Deas v. River West, L.P., 152 F.3d 471, 475 (5th Cir.1998).

We need not address whether alcoholism is a handicap or whether discrimination against an employee based on a perception that he or she is an “alcoholic” is covered by the FCRA. For the purpose of this appeal, we assume such to be the case. Here, there is no evidence that Razner suffered from alcoholism or that she was unqualified for her job. Her burden was in proving that Wellington regarded her as a person suffering from an impairment that substantially limited one or more major life activities. See Sutton v. United Air Lines, Inc., 527 U.S. 471, 480, 119 S.Ct. 2139, 144 L.Ed.2d 450 (1999). ‘When the major life activity under consideration is that of working, the statutory phrase ‘substantially limits’ requires, at a minimum, that plaintiffs allege they are unable to work in a broad class of jobs.” Id. at 491, 119 S.Ct. 2139.

Clearly, there is no violation of the Act by Wellington and its staff taking reasonable measures to insure that its employee, suspected of drinking on the job or while “on call,” is not doing so. Simmers was warranted in reprimanding Razner the first time another co-worker complained that she smelled of alcohol and for conducting a blood test the second time she was suspected of drinking alcohol on the job.

We do not construe the blood testing of an employee under these circumstances as evidence that the employee was “regarded as” an alcoholic, nor do we interpret this precautionary measure as discriminatory conduct. See Watson v. City of Miami Beach, 177 F.3d 932, 935 (11th Cir.1999)(“The ADA does not, indeed cannot, require a police department to forgo a fitness for duty examination to wait until a perceived threat becomes real or questionable behavior results in injuries.”). Therefore, having determined that Razner failed to establish she was handicapped under the FCRA, we need not consider the other elements under Kwiatek. As such, summary judgment in favor of Wellington was the proper course.

The trial court also did not err in granting summary judgment based on Razner’s defamation claims. To establish a cause of action for defamation, a plaintiff must show that (1) the defendant published a false statement about the plaintiff, (2) to a third party, and (3) the falsity of the statement caused injury to the plaintiff. Valencia v. Citibank Int'l., 728 So.2d 330, 330 (Fla. 3d DCA 1999). When bringing a cause of action for defamation based on oral statements, a plaintiff need not set out the defamatory language verbatim; it is sufficient that the plaintiff set out the substance of the spoken words with sufficient particularity to enable the court to determine whether the publication was defamatory. Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51, 55 (Fla. 3d DCA 1982).

Here, Razner’s third amended complaint alleged only that Thomas and Simmers told Englishby that Razner “had come to work impaired.” Englishby’s statement is that she could not recall whether Thomas had used those exact words or had said that someone else told Thomas that Razner was impaired. This statement was not defamatory because Simmers and Thomas had an interest in whether Englishby would cover Razner’s shift as supervisors of the department, and Englishby had a corresponding interest in the subject matter. See Demby v. English, 667 So.2d 350, 353 (Fla. 1st DCA 1995)(explaining that person who publishes defamatory matter is not liable if statements are published in good faith and upon a conditionally privileged occasion).

Even in an atmosphere of some hostility, neither Thomas nor Simmers said more than was reasonable to convey to English-by that the surprising events surrounding Razner’s absence caused her to have less notice than she would normally expect. Certainly the circumstances prompting the conversation would normally be the subject of office discussion.

The other statements Razner asks us to consider, despite the trial court’s denial of her ore tenus motion to amend her third amended complaint, were not actionable because they were either true or opinion. See From v. Tallahassee Democrat, Inc., 400 So.2d 52, 56 (Fla. 1st DCA 1981)(“Under the First Amendment there is no such thing as a false idea”). A statement is pure opinion, as a matter of law, when it is based on facts which are otherwise known or available to the reader or listener. Id.

Here, although Simmers told En-glishby she thought Razner was an alcoholic and needed to retire, the comment must be considered in the context of this communication. In this context, the trial court properly recognized the statement as opinion where Englishby was aware of Razner’s blood test and Simmons’ distaste in general for Razner. Razner also alleged in her statement of disputed facts that after being tested for alcohol, Jones told Englishby that she smelled alcohol on Razner’s breath and asked Englishby to sign a paper claiming to have also smelled alcohol on Razner. Again, this statement is not actionable because Englishby did not believe it and the paper was never published to anyone else.

The only statements that may have injured Razner were the statements involving Razner’s blood test that circulated throughout the hospital. These statements, though not alleged in the third complaint, do not rise to the level of defamation because they are true.

Therefore, we affirm summary judgment in favor of the appellees.

GUNTHER and GROSS, JJ., concur.

      . Title VII only makes it an unlawful employment practice to discriminate on the basis of race, color, religion, sex, or national origin. Civil Rights Act of 1964, §§ 701 et seq., 703(a)(1), as amended, 42 U.S.C.A. §§ 2000e et seq., 2000e-2(a)(l).