author: McMILLAN, Presiding Judge. WISE, Judge,

text:
    Wayne ZIMLICH v. STATE.
    CR-01-1706.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 22, 2003.

      Kenneth A. Nixon, Mobile; and Joseph D. Quinlivan, Jr., Mobile, for appellant.
    William H. Pryor, Jr., atty. gen., and James B. Prude, asst. atty. gen., for appel-lee.
   McMILLAN, Presiding Judge.

The appellant, Wayne Zimlich, pleaded guilty and was convicted of perjury in the second degree, a violation of § 13A-10-102, Ala.Code 1975. He was sentenced to one year’s imprisonment; that sentence was split and he was ordered to serve 60 days’ imprisonment, and two years on probation. He was required, as a condition of his probation, to surrender to the Alabama Board of Nursing his nursing license for the two years of his probation. The trial court further ordered Zimlich to refrain from practicing as a nurse or nurse anesthetist in Alabama or any other state during the probationary period. Zimlich was ordered to pay $25 to the victims compensation fund and to pay assessed court costs.

This case has a complicated history, which we briefly recount in order to accurately characterize the issues and the procedural posture of this case. See Ex parte Zimlich, 796 So.2d 394 (Ala.Crim.App. 1999), writ of mandamus set aside by State v. Zimlich, 796 So.2d 399 (Ala.2000).

In 1993, a female patient died during surgery to remove her gallbladder. Her family filed a medical-malpractice action against Zimlich, a registered nurse anesthetist, and his supervising physicians, alleging that they had negligently caused the death of the patient; that case was tried in the Mobile Circuit Court in October 1995. Zimlich, who had been present during the operation and who had administered various medications, testified during the trial of the medical-malpractice case. In November 1997, Zimlich sued his insurance company alleging that it had acted in bad faith in failing to settle the malpractice claim against him. He was awarded $15,000 against the insurance company. In the trial of his claim against the insurer, he alleged that he had been coerced by the insurance company and its employees, the doctor who employed him, and the defense attorney representing the insurance company, into giving false testimony at the malpractice trial.

In June 1998, the grand jury for Mobile County indicted Zimlich for perjury. The indictment read:

“WAYNE ZIMLICH, whose name is to the Grand Jury otherwise unknown than as stated, did, on or about October 9, 1995, after having been sworn to tell the truth, knowingly testified under that oath in an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
“ ‘Q. And according to the [EKG (echocardiogram) ] monitor this period, this second episode of bradycardia and hypotension would have lasted for what period of time?
“ ‘A. About three minutes from the time it went down below like forty-three and I started to treat it until she responded to the drugs.’
“That said Wayne Zimlich did, on or about November 3, 1997, after having been sworn to tell the truth, knowingly testified under that oath at an official proceeding, to-wit: a jury trial in the Circuit Court of Mobile County, Alabama as follows:
“ ‘Q. Page eighty-one, I’ll read this, starting at line four (of a prior deposition of Wayne Zimlich), question: is it your testimony that the bradycardia in the second episode lasted three to five minutest?]
‘“A: Yes
“ ‘Q: Is it your testimony that Ms. McGahagin would not have been bra-dycardic for longer than three to five minutes?
“ ‘A: Correct, severe sinus bradycar-dia for longer than three to five minutes.
“ ‘Q. That was a lie?
“‘A. That was what we had decided we were going to say and that was not the truth.
“ ‘Q. That’s not the truth?
“ ‘A. That’s correct.
“That said Wayne Zimlich having knowingly made each said statement, one of the other of which is false and not believed by the said Wayne Zimlich to have been true when made, in violation of Section 13(A)-10-101, of the Code of Alabama against the peace and dignity of the State of Alabama.”

Zimlich filed a motion to dismiss the indictment, arguing that it failed to allege the offense of perjury in the first degree because it made no allegation that the alleged perjurious statement was “material.” In 1998, the trial court granted Zim-lich’s motion. In January 1999, the State reindicted Zimlich for first-degree perjury. The indictment read as follows:

“The GRAND JURY of the County charge, that before the finding of this indictment, WAYNE ZIMLICH whose name is to the Grand Jury otherwise unknown than as stated, and, or on about October 9, 1995, during his examination as a witness after having been duly sworn to testify. truthfully in the trial of JAMES R. McGAHAGIN, et al., v. DR. ANTHONY SAVOIE, et al, CV-93-1571, in the Circuit Court of Mobile County, Alabama a jury trial alleging medical malpractice, which said court had authority to administer such oath, swear as follows:
“Q. And according to the EKG monitor this period, this second episode of bradycardia and hypotension would have lasted for what .period of time?
“A. About three minutes from the time it went down below like forty-three and I started to treat it until she responded to the drugs, and the matter so sworn to being material to a determination of whether or not there had been medical malpractice; and, “That said WAYNE ZIMLICH did,

on or about November 3, 1997, during his examination as a witness and after having been duly sworn to testify truthfully in the trial of WAYNE ZIMLICH v. ST. PAUL FIRE & MARINE INSURANCE COMPANY, et. al.', CV-96-2441, in the Circuit Court of Mobile County, Alabama, a jury trial alleging bad faith, negligence or .wanton failure to settle an insurance claim, which said court had authority to administer such oath, swear as follows:

“Q. All right. Did you testify at trial?
“A. Yes.
“Q. And did you testify truthfully at trial?
“A. No.
“Q. Tell us what you said during trial that wasn’t truthful?
“A. I stayed with the defense that I have been told to put forward, that the record was compressed, that it was only three to four minutes, or four to five minutes. I don’t remember whether I was ever asked about Savoie, but basically- it was trying to defend that time period,
“and the matter so sworn to being material to a determination of whether or not there had been bad faith, negligence or wanton failure to settle an insurance claim, and
“The said WAYNE ZIMLICH having willfully and corruptly made each statement, one or the other of which is false and not believed by the said WAYNE ZIMLICH to have been true- when made, a violation of Section 13A-10-104 of THE CODE OF ALABAMA, in violation of Section 13A-10-101, of THE CODE OF ALABAMA against the peace and dignity of the State of Alabama.”

Zimlich filed a second motion to dismiss, arguing that because the second indictment charged first-degree perjury, a different offense from that charged in the first indictment, which he argued was third-degree perjury, and because the second indictment was returned more than three years after the date of the perjury, it was barred by the applicable statute of limitations, § 15-3-1, Ala.Code 1975. He contended that the misdemeanor perjury charge in the first indictment did not toll the running of the statute of limitations because, he says, the tolling statute applies only to the same offense. He further contended that the first indictment, charging a misdemeanor, was void because it was not brought within the 12-month statutory limitations period. Section 15-3-2, Ala. Code 1975. Lastly, he argued that he would be substantially prejudiced if the indictment were not dismissed. The trial court denied Zimlich’s motion and found that the first indictment was not void and that, therefore, the three-year statute of limitations on the felony perjury charge was tolled by Rule 15.5(c), Ala. R.Crim. P.

Zimlich petitioned for a writ of mandamus from this Court, ordering the trial court to dismiss the indictment on statute of limitations grounds. This Court granted his petition. In so holding, this Court concluded that the first indictment tracked the language of § 13A-10-103(a), Ala.Code 1975, the statute defining third-degree perjury. That statute reads: “A person commits the crime of perjury in the third degree when he swears falsely.”

The statutory limitations period for commencing a prosecution for third-degree perjury, a misdemeanor offense, is 12 months. See § 15-3-2, Ala.Code 1975. (“[T]he prosecution of all misdemeanors before a circuit or district court must be commenced within 12 months after the commission of the offense.”).

This Court further found that the first indictment did not operate to toll the running of the time for returning the second indictment because the first indictment charged an offense different from that charged in the second indictment and because the first indictment was void, having been returned more than 12 months after the alleged perjury had occurred at the October 1995 trial.

The Alabama Supreme Court set aside this Court’s writ of mandamus, see State v. Zimlich, supra, holding that mandamus was an inappropriate remedy to review Zimlich’s claims because Zimlich failed to establish that he had a clear legal right, to the order he received and because his claims could, be raised on a direct appeal of his conviction. Although the Supreme Court did not specifically rule on the merits of Zimlich’s claim, it indicated that, contrary to this Court’s opinion in Ex parte Zimlich, “an equally persuasive argument can be made that [the first indictment] did not track § 13A-10-103 [third-degree perjury] and did not charge misdemeanor perjury.” State v. Zimlich, 796 So.2d at 402 n. 2. The Supreme Court further stated that “[w]e note that the indictment more closely tracked § 13A-10-104, which allows a person to be prosecuted for inconsistent statements that occurred within the statutory limitations period, and that it cited the felony-perjury statute, § 13A-10-101.” State v. Zimlich, 796 So.2d at 402 n. 2.

The record indicates that no trial was conducted on Zimlich’s claims after this Court set aside its writ of mandamus. The trial court, however, conducted three separate hearings on October 19, 2000, February 12, 2001, and May 29, 2002. In October 2000, oral argument was presented before the trial court on Zimlich’s motion to dismiss. Zimlich reiterated the same arguments raised in his prior motions to dismiss. The State responded by presenting a “time line,” which indicated that the second indictment was returned 89 days before the 3-year statutory limitations period for first-degree perjury expired. Zimlich admitted that, if the first indictment actually charged first-degree perjury, a felony, then the statute was tolled. At the February 2001 hearing, Zimlich withdrew his plea of not guilty, and stipulated that the State could prove a prima facie case of first-degree perjury against him. At the May 2002 hearing, the State and Zimlich agreed to amend the charge to second-degree perjury, a misdemeanor, and Zimlich entered a guilty plea. In May 2002, Zimlich filed a motion to dismiss the indictment and a motion to modify the sentence, both of which the trial court denied.

Zimlich argues that the trial court erred in denying his motion to dismiss the indictment charging first-degree perjury. In support of his argument, Zimlich contends that the Alabama Supreme Court’s holding setting aside this Court’s grant of Zim-lich’s petition for a writ of mandamus did not disturb this Court’s decision on the merits of his statute-of-limitations claim, and that this Court’s ruling, in Ex parte Zimlich, supra, is still the “law of the case.”

This Court does not agree with Zimlich’s contention that our holding in Ex parte Zimlich, supra, is the law of the case, because that judgment was set aside by the Alabama Supreme Court in State v. Zimlich, supra.

If the first indictment was an attempt to charge first-degree perjury, it failed to charge an essential element of the offense, materiality, and was, therefore, void. Consequently, it would not toll the statutory limitations period for the return of the second indictment. “The word Void,’ in its 'strictest sense, means that which has no force and effect, is without legal efficacy, is incapable of being enforced by law, or has no legal or binding force.” Black’s Law Dictionary 1573 (6th ed.1990). Since a void indictment has no legal effect, there was nothing to toll the statute of limitations. Cf. State v. Fain, 484 So.2d 558, 559 (Ala.Crim.App.1986) (“A valid warrant of arrest is the commencement of a criminal prosecution within the meaning of the statute of limitations.... However, a void warrant of arrest will not toll the statute of limitations.”).

Moreover, if the first indictment intended to charge perjury in the third degree, then it was filed too late; the statutory limitations period for filing an indictment of a misdemeanor is within 12 months of its commission. § 15-3-2, Ala. Code 1975. The statute of limitations is jurisdictional and an indictment filed after the expiration of the limitations period is void. Ex parte Campbell, 784 So.2d 323, 324 (Ala.2000).

Consequently, the trial court erred in denying Zimlich’s motion to dismiss the perjury charge. Therefore, we reverse the judgment of the trial court and render a judgment in favor of Zimlich.

REVERSED AND JUDGMENT RENDERED.

COBB, BASCHAB, and SHAW, JJ., concur. WISE, J., dissents, with opinion.

WISE, Judge,

dissenting.

I dissent from the majority.opinion reversing Zimlich’s conviction for second-degree perjury and rendering a judgment in his favor on the ground that the indictment was filed after the expiration of the statutory limitations period. Admittedly, in 1999 this Court held that the 1998 indictment returned against Zimlich charged him with third-degree perjury, a misdemeanor, rather than first-degree perjury, a felony. Thus, this Court concluded that the 1999 indictment charging him with first-degree perjury was barred by the statute of limitations. See Ex parte Zimlich, 796 So.2d 394, 398 (Ala.Crim.App. 1999).

However, the Alabama Supreme Court subsequently vacated this Court’s decision, holding that Zimlich had no clear legal right to the dismissal of a 1999 perjury indictment as barred by the statute of limitations and, therefore, was not entitled to a writ of mandamus. State v. Zimlich, 796 So.2d 399 (Ala.2000). Although the Supreme Court granted the State’s petition for the writ of mandamus on grounds other than this Court’s conclusion that the 1999 indictment was time-barred because the 1998 indictment did not operate to toll the time for returning the 1999 indictment, the Supreme Court, nevertheless, called into question this Court’s holding, noting:

“Although the Court of Criminal Appeals concluded that the first indictment charged Zimlich with misdemean- or perjury and that the language of the indictment tracked § 13A-10-103 (third-degree perjury), an equally persuasive argument can be made that it did not track § 13A-10-103 and did not charge misdemeanor perjury. We note that the indictment more closely tracked § 13A-10-104, which allows a person to be prosecuted for inconsistent statements that occurred within the statutory limitations period, and that it cited the felony-perjury statute, § 13A-10-101.”

796 So.2d at 402 n. 2." The Supreme Court, at least by implication, recognized that Zimlich’s 1998 indictment did charge him with felony perjury, and that that indictment was not void. In my opinion, the 1998 indictment more clearly tracked the language of § 13A-10-104, which addresses perjury arising out of inconsistent statements made under oath. This Court has long held that an indictment is sufficient if it tracks the language of the charging statute.

“The first requirement of an indictment is that it apprise the accused of the nature of the offense. Ex parte Hightower, 443 So.2d 1272, 1273 (Ala.1983). See also Reese [v. State, 456 So.2d 341 (Ala.Crim.App.1982) ]. The indictment in the instant case tracks the language of the statute and is sufficient to apprise the appellant of the crime charged. ‘The indictment is sufficient if it alleges the elements of the statute or words which are equivalent in meaning.’ Hold er [v. State,] 584 So.2d [872,] 879 [ (Ala.Crim.App.1991) ].”

Hartley v. State, 598 So.2d 2, 4 (Ala.Crim. App.1991).

Clearly, the 1998 indictment sufficiently tracked the language of .§ 13AA0-104 so as to apprise Zimlich of the nature of the offense with which he was being charged. Further, I believe that the inclusion of § 13A-10-101 was simply to put Zimlich on notice of the degree of perjury with which he was being charged, as provided in § 13A-10-104(b).

While the 1998 indictment was not a model of clarity, I cannot agree that the language of that indictment was insufficient to charge Zimlich with the offense of first-degree perjury under § 13A-10-104, rather than under § 13A-10-101. Since the 1998 indictment was not void, it tolled the statute of limitations. Sée § 15-3-6, Ala.Code 1975; Rule 15.5(c), Ala. R.Crim. P. Therefore, the trial court correctly denied Zimlich’s motion to dismiss the 1999 indictment. Because the 1998 indictment was, at most, voidable, rather than void, the 1999 indictment was not barred by the statute of limitations; thus, the'jurisdiction of the trial court was not implicated. Moreover, because Zimlich failed to reserve this issue for appellate review, his guilty plea waived any further claim as to the validity of the 1999 indictment, because a guilty plea waives all nonjurisdictional defects. See, e.g., Thompson v. State, 680 So.2d 1014, 1018 (Ala.Crim.App.1996); Prim v. State, 616 So.2d 381, 382 (Ala. Crim.App.1993). Based on the foregoing, I would affirm Zimlich’s conviction for second-degree perjury, based on the 2002 amendment to the 1999 indictment. Therefore, I must dissent.

      . Perjury in the third degree is a Class B misdemeanor. § 13A-10-103(b), Ala.Code 1975.

      . Zimlich’s claim was previously reviewed pursuant to a petition for writ of mandamus. I was not a member of the Court of Criminal Appeals when this case was decided. Had I been, I would have dissented from the decision.


source: Caselaw Access Project

author: McMILLAN, Presiding Judge.

license: Public Domain

text:
    STATE v. Leslie Jean ODOM.
    CR-01-1856.
    Court of Criminal Appeals of Alabama.
    June 27, 2003.
    Rehearing Denied Aug. 15, 2003.

      William H. Pryor, Jr., atty. gen., and Marc A. Starrett, asst. atty. gen., for appellant.
    Joel L. Sogol, Tuscaloosa, for appellee.
   McMILLAN, Presiding Judge.

The appellee, Leslie Jean Odom, was indicted on a charge of unlawfully possessing a controlled substance. He entered a plea of not guilty and moved to suppress evidence of methamphetamine that had been found in his possession. After a hearing, the trial court granted the motion. The court found that Odom had purchased a number of items that were “precursors to the manufacture of methamphetamine” but that “[possession of these objects alone is not illegal.” The court further found that the police “had a reasonable suspicion sufficient to stop and question the defendant” but “did not have probable cause to believe that the defendant had methamphetamine in his truck or to obtain a search warrant to search his truck.”

The State appeals from the trial court’s order granting the motion to suppress. Rule 15.7(a), Ala. R.Crim. P. The State contends that the trial court erred in holding that the officers did not have probable cause to search Odom’s vehicle and person. The State argues that Odom’s purchase of known precursors for the manufacture of methamphetamine, combined with the officers’ observation of methamphetamine by-products in Odom’s truck and their knowledge of Odom’s recent arrest for a methamphetamine offense, provided the necessary probable cause. The State also argues that the search was based upon the officers’ good-faith reliance on the search warrant issued by the district court.

At the suppression hearing, narcotics agent Dorteen Williams testified that police sergeant Steve Anderson had contacted her on June 21, 2001, about a possible controlled-substance violation. She reported to the parking lot of a Wal-Mart discount department store, and the officers at the scene gave her the following information: police investigator J.B. Mason had been working at his off-duty job at the Wal-Mart store when he saw the defendant purchase certain items that Mason had been trained to recognize as ingredients commonly used in manufacturing methamphetamine. Odom’s purchases in-eluded 2 bottles of propane fuel, a set of stainless steel cookware, 4 packages of lithium batteries, 3 boxes of Equate brand cold and allergy medication, 4 boxes of Sudafed cold and allergy medication, and 12 bottles of antifreeze. Wal-Mart has the policy of notifying the police when customers purchase more than three boxes of cold medications. Mason telephoned Sgt. Anderson and advised him of Odom’s purchases, and Sgt. Anderson sent Officer David Martin to the Wal-Mart store to investigate. Martin and Mason stopped Odom as he was placing his purchases into the toolbox of his pickup truck. In the bed of the truck, the officers saw several jars that contained the clear liquid and white and reddish residues commonly found where methamphetamine is being manufactured. The officers informed Odom of his Miranda rights, and he refused to consent to a search of his vehicle. Sgt. Anderson then contacted Agent Williams. Williams reported to the Wal-Mart store and obtained the information needed to request a search warrant. In addition to the information she had obtained from the other officers, Williams knew that Leslie Odom had a reputation Of being involved in the distribution of illegal narcotics and that he had been arrested for trafficking in methamphetamine on April 19, 2001. Williams had personal knowledge of the process of methamphetamine manufacture, the defendant’s reputation, and the defendant’s previous arrest because she was a trained, experienced member of the West Alabama Narcotics Task Force, the agency that made the arrest. Williams submitted her affidavit to the Tuscaloosa District Court, and the court issued a warrant to search Odom’s truck and person. In the pocket of the driver’s side door, the officers found a plastic bottle wrapped in black tape. Inside the bottle, they found a plastic bag containing white powder. In Odom’s pants pocket, the officers found another plastic bag containing white powder. Odom stipulated that the white powder was methamphetamine. Agent Williams testified that Equate and Sudafed brand of cold medicines contain pseu-doephedrine, a precursor for manufacturing methamphetamine. She said that propane fuel, cookware, lithium batteries, and antifreeze also are used in the manufacture of methamphetamine.

In reviewing a trial court’s decision on a motion to suppress evidence when the facts are not in dispute, this court applies a de novo standard of review. State v. Otwell, 733 So.2d 950 (Ala.Crim.App.1999). Here, the facts are uncontested; the only-issue is the trial court’s application of the law. Although the court’s finding of reasonable suspicion for the investigatory stop is not challenged, the concept of reasonable suspicion is addressed because it includes many of the factors upon which a subsequent determination of probable cause should be based.

I. Reasonable Suspicion

The Fourth Amendment prohibition against “unreasonable searches and seizures” by the government extends to brief investigatory stops of persons or vehicles. Terry v. Ohio, 392 U.S. 1, 9, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The reasonableness of such searches and seizures depends upon “a balance between the public interest and the individual’s right to personal security.” United States v. Brignoni-Ponce, 422 U.S. 873, 878, 95 S.Ct. 2574, 45 L.Ed.2d 607 (1975). A police officer may conduct an investigatory stop if there is “a reasonable suspicion that the person to be stopped is engaged in some type of criminal activity.” Webb v. State, 500 So.2d 1280, 1281 (Ala.Crim.App. 1986).

In reviewing reasonable suspicion determinations, courts must look at the “ ‘totality of the circumstances’ ” to see whether the detaining officer had a “ ‘particularized and objective basis’ ” for suspecting wrongdoing. United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002), quoting United States v. Cortez, 449 U.S. 411, 417-418, 101 S.Ct. 690, 66 L.Ed.2d 621 (1981)). “This process allows officers to draw on their own experience and specialized training to make inferences from and deductions about the cumulative .information available to them that ‘might well elude an untrained person.’ ” Arvizu, 534 U.S. at 273, 122 S.Ct. 744 (quoting Cortez, 449 U.S. at 418, 101 S.Ct. 690). A determination of probable cause should not be based on a “divide-and-conquer analysis” but should consider a series of acts, each of which is “perhaps innocent in itself,” together in determining whether they warrant further investigation. Terry v. Ohio, 392 U.S. at 22, 88 S.Ct. 1868.

Here, an off-duty police officer saw the defendant go through the checkout line “several” times to purchase items the officer had been trained to recognize as materials commonly used to manufacture methamphetamine. The items included a large quantity .of cold medications containing pseudoephedrine, a “precursor chemical” listed in § 20-2-181, Ala.Code 1975. A person who possesses a listed precursor .chemical with the knowledge or intent that it will be used in the unlawful manufacture of a controlled substance commits a Class B felony. § 20-2-190(b), Ala.Code 1975. Based on the totality of the circumstances, the trial court correctly determined that the officers had a reasonable suspicion that the defendant was engaged in criminal activity.

In State v. Bulington, 783 N.E.2d 338 (Ind.Ct.App.2003), a store employee told police that two men had purchased 3 boxes of cold tablets at separate registers and had then gotten into the same vehicle. The court found that it was reasonable for an officer to infer that the men had attempted to purchase a methamphetamine precursor in a manner calculated to avoid suspicion. The court contrasted that situation with one in which a single customer makes a single purchase of 3 boxes of ephedrine, stating that the latter situation might prompt a report to police but, without more, would not necessarily give rise to suspicion sufficient to justify an investigatory stop. See State v. Vereb, 643 N.W.2d 342 (Minn.Ct.App.2002)(Wal-Mart employee’s report that two men made several trips to purchase large quantity of cold tablets, officer’s knowledge that the tablets were common precursors in methamphetamine production, and officer’s observation of speeding and evasive driving conduct provided reasonable suspicion to investigate defendant for conspiracy to manufacture methamphetamine); compare In re D.G. (No. 01-0752, Oct. 16, 2002) (Iowa Ct.App.2002)(unpublished opinion in which investigatory stop based on Wal-Mart employee’s report held not warranted because the only evidence shown to be available to officers at time of stop was purchase of unspecified number of lithium batteries and “not large” quantities of starter fluid and propane fuel).

II. Probable Cause

“[Pjrobable cause requires information that is superior in both quantum (content) and quality (reliability) to that required for reasonable suspicion.” Jones v. State, 631 So.2d 285, 287 (Ala.Crim.App.1993). Probable cause to search a vehicle exists when all the facts and circumstances within the officer’s knowledge are sufficient to warrant a person of reasonable caution to conclude that an offense has been or is being committed and the vehicle contains contraband. Stallworth v. State, 645 So.2d 323 (Ala.Crim.App.1994). In determining whether probable cause exists, the totality of the circumstances test must be applied. Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Following Officer Mason’s observations inside the Wal-Mart store, the officers had a reasonable suspicion that Odom was involved in manufacturing methamphetamine. They then saw the jars of liquid and residues in his truck. Agent Williams knew that these materials were common by-products of methamphetamine manufacture, and she knew that Odom had previously been arrested for manufacturing methamphetamine. Based on the totality of the this evidence, the officers’ reasonable suspicion ripened into probable cause to believe that methamphetamine could be found in Odom’s truck. The officers would have been justified in conducting a warrantless search. However, they chose to seek a warrant before they searched the defendant’s truck.

III. The Warrant

When a search warrant is requested, “[t]he task of the issuing magistrate is simply to make a practical, common-sense decision whether, given all the circumstances set forth in the affidavit before him, including the ‘veracity’ and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. at 238, 103 S.Ct. 2317.

“[T]he duty of a reviewing court is simply to ensure that the magistrate had a ‘substantial basis for ... concluding]’ that probable cause existed.’ ”

Id., at 238-39, 103 S.Ct. 2317.

In an affidavit for a warrant, the affiant may rely upon information obtained from fellow officers. Marks v. State, 575 So.2d 611, 614-15 (Ala.Crim.App.1990). However, the agent must state in the affidavit that he is relying upon another officer. Id.

In her affidavit, Agent Williams set out the circumstances and purchases that had led to Odom’s stop. She also described the methamphetamine by-products that were observed in his truck. However, Williams did not indicate that the purchases and by-products had been observed by other officers and then reported to her. Her affidavit therefore was insufficient to support a finding of probable cause. However, even though the affidavit was deficient, the trial court should not have granted Odom’s motion to suppress.

The good-faith exception to the exclusionary rule provides that, when officers act in “objectively reasonable reliance on a warrant issued by a neutral, detached magistrate, conduct a search and the warrant is found to be invalid, the evidence need not be excluded.” Rivers v. State, 695 So.2d 260, 262 (Ala.Crim.App.1997), citing United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). The Court has recognized only four circumstances in which the good-faith exception does not apply: (1) when the magistrate or judge relies on information that the affiant knew was false or would have known was false except for reckless disregard for the truth; (2) when the magistrate wholly abandons his judicial role and fails to act in a neutral and detached manner; (3) when the warrant is based on an affidavit that is so lacking in indicia of probable cause that belief in its existence is unreasonable; and (4) when the warrant is so facially deficient that the executing officer cannot reasonably presume its validity. Straughn v. State, [Ms. CR-01-1378, May 30, 2003] — So.2d-,(Ala.Crim.App.2003), citing United States v. Leon, supra. None of those circumstances were present in this case.

The information in Agent Williams’s affidavit was accurate and undisputed, and there is no indication that the issuing magistrate was not neutral and detached. Even though Williams’s affidavit was incomplete, it did contain substantial indicia of probable cause. The warrant issued by the district court was not facially deficient, and the officers could reasonably rely on its validity. Therefore, the trial court erred in excluding the evidence seized by the officers.

Based on the foregoing, the trial court erred in granting Odom’s motion to suppress the methamphetamine seized during the officers’ search. The judgment of the trial court hereby is reversed, and the case is remanded for proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, BASCHAB, SHAW, and WISE, JJ., concur.

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

      . Agent Williams did not identify the seized items in her testimony. The items were listed on the search-warrant return and inventory filed by the State.

      . The court stated that they were deeply troubled by unwritten store policies that specify a “seemingly arbitrary” quantity of certain household items that may be purchased without suspicion and by the prospect of authorities acting on tips from “improperly trained or overly zealous” store employees. 783 N.E.2d at 348. The court noted that because "innocent" household items can easily be used to manufacture methamphetamine, sales that used to go unnoticed now result in heightened scrutiny and criminal investigation.

      . The likely mobility of the vehicle provided an exigent circumstance. Mason said that they stopped Odom after he had gotten into the bed of the truck but before he got inside the vehicle.


author: PER CURIAM.

text:
    STANDARD JURY INSTRUCTIONS—CIVIL CASES (NO. 02-2).
    No. SC02-2130.
    Supreme Court of Florida.
    April 1, 2004.
    Honorable Chris W. Altenbernd, Chair, Supreme Court Committee on Standard Jury Instructions (Civil), Second District Court of Appeal, Tampa, FL; and Tracy Raffles Gunn, Chair, Supreme Court Reporting Committee, Tampa, FL, for Petitioner.
    Philip M. Burlington, Chair, AFTL Ami-cus Curiae Committee, West Palm Beach, FL, and Paul D. Jess, General .Counsel, Tallahassee, FL, on behalf of The Academy of Florida Trial Lawyers, Inc., Responding.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Civil Cases (Committee) has petitioned this Court to consider amendments to the Florida Standard Jury Instructions in Civil Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On October 1, 2002, the Committee filed a Supplemental Report (No. 02-2)’, proposing changes to current civil jury instructions regarding product liability. Prior to submitting this report to the Court, the Committee published its proposals in the June 15, 2002, edition of The Florida Bar News. The Committee received and considered one comment prior to submitting its proposals to the Court.

Further, on August 27, 2003, the Committee filed an amended report to clarify its October 1, 2002, submission.

The proposed revisions to PL 4, “strict liability (manufacturing flaw),” are intended to provide structure and information in a manner similar to that in current PL 5, “strict liability (design defect).” Accordingly, the proposal to modify PL 4 follows the format of existing PL 5. Further, the proposal strikes the term “manufacturing flaw” and utilizes the phrase “manufacturing defect” to reflect the generally accepted concept that has been applied in decisions rendered in this state. See Restatement (Third) of Torts: Products Liability § 2 (1998).

The proposed amendments to the two “notes on use” sections of the product liability instructions clarify that the instructions do not contain negligence instructions, but that a negligence instruction can be found in charge 3.5, Negligence Issues, as illustrated in Model Charge 8. Further, the proposed notes provide a caution to judges and lawyers concerning the possibility of an inconsistent verdict when both a negligence claim and a defective design claim are submitted to a jury. See, e.g., Consol. Aluminum Corp. v. Braun, 447 So.2d 391 (Fla. 4th DCA 1984); Ashby Din of Consol. Aluminum Corp. v. Dobkin, 458 So.2d 335 (Fla. 3d DCA 1984).

The Committee’s proposal makes two changes to Comment 2 regarding PL 5. First, the proposal updates the case law cited for definitions of the term “unreasonably dangerous.” Second, the proposal provides a caution regarding potential two-issue rule problems that might arise if a jury is instructed under PL 5 on both the consumer-expectation test and the risk-utility test. See Zimmer, Inc. v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA 2000).

[W]here there is no proper objection to the use of a general verdict, reversal is improper where no error is found as to one of two issues submitted to the jury on the basis that the appellant is unable to establish that he has been prejudiced.
Whitman v. Castlewood Int'l Corp., 383 So.2d 618, 619 (Fla. 1980). The rule is based on the principle that reversal is improper where no error is found as to one of the issues that can independently support the jury’s verdict.

The proposal amends Comment 5 by striking references to the concept of contributory negligence, and correcting references to the model charge numbers.

The proposal adds new Comment 7, which directs attention to Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981). The proposal merely states that pending further development of Florida law, the Committee takes no position on the sufficiency of the instructions in cases in which the Cassisi inference applies.

Additionally, the attached amendments contain corrections to minor citation errors.

Upon consideration of the Committee’s reports, we hereby authorize the publication and use of the revised instruction as set forth in the appendix following this opinion. In doing so, we express nb'-opm-ion on the correctness of the instruction and remind all interested parties that this'' authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that the notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instruction as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

PL

PRODUCT LIABILITY

NOTE ON USE

The instructions in ffEhis Part PL' PRODUCT LIABILITY do not contain instructions on Negligence, is intended to serve the same purposes, in cases involving asserted product liability based on concepts other than negligence,-as are served in negligence- cases-by-Par-t-III -ISSUES and — Part—IV- NEGLIGENCE. When alternative issues of negligence are to be submitted, use Charge 3.5 on Negligence Issues, as in Model Charge No. ?8.

The issues for your determination on the claim of (claimant) against (defendant) are whether the (describe product) [sold] [supplied] by (defendant) was defective when it left the possession of (defendant) and, if so, whether such defect was a legal cause of [loss] [injury] [or] [damage] sustained by (claimant or person for whose injury claim is made). A product is defective

PL 1 express warranty

if it does not conform to representations of fact made by (defendant), orally or in writing, in connection with the [sale] [transaction], on which (name) relied in the [purchase and] use of the product. [Such a representation must be one of fact, rather than opinion.]

PL 2 implied, warranty of merchantability

if it is not reasonably fit for the uses intended or reasonably foreseeable by (defendant).

PL 3 implied warranty of fitness for particular purpose

if it is not reasonably fit for the specific purpose for which (defendant) knowingly sold the product and for which the purchaser bought the product in reliance on the judgment of (defendant).

PL L strict liability (manufacturing defect flaw)

if by reason of a manufacturing defect it is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product]* and the product is expected to and does reach the user without substantial change affecting that condition.
A product is unreasonably dangerous because of a manufacturing defect if it does not conform to its intended design and fails to perform as safely as the intended design would have performed.

PL 5 strict liability (design defect)

if by reason of its design the product is in a condition unreasonably dangerous to [the user] [a person in the vicinity of the product]* and the product is expected to and does reach the user without substantial change affecting that condition.
A product is unreasonably dangerous because of its design if [the product fails to perform as safely as an ordinary consumer would expect when used as intended or in a manner reasonably foreseeable by the manufacturer] [or] [the risk of danger in the design outweighs the benefits].

If the greater weight of the evidence does not support the claim of (claimant), your verdict should be for (defendant).

[However, if the greater weight of the evidence does support the claim of (claimant), then your verdict should be for (claimant) and against (defendant) ]. * *[However, if the greater weight of the evidence does support the claim of (claimant), then you shall consider the defense raised by (defendant). On the defense, the issues for your determination are (state defense issues) ].

“Greater weight of the evidence” means the more persuasive and convincing force and effect of the entire evidence in the case.

NOTES ON USE

If it is determined that a Negligence instruction is appropriate in addition to a Product Liability (PL) instruction, use charge 3.5 on Negligence Issues as in Model Charge No. 8.

In cases involving claims of both negligence and defective design, submission of both claims may result in an inconsistent verdict. See, e.g., Consol. Aluminum Corp. v. Braun, 447 So.2d 391 (Fla. 4th DCA 1984); Ashby Div. of Consol. Aluminum Corp. v. Dobkin, 458 So.2d 335 (Fla. 3d DCA 1984). See also Moorman v. American Safety Equip., 594 So.2d 795 (Fla. 4th DCA 1992); North American Catamaran Racing Ass’n. v. McCollister, 480 So.2d 669 (Fla. 5th DCA 1985).

*When the injured person is a bystander, use the language in the second pair of brackets. See West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), and; Sanchez v. Hussey Seating Co., 698 So.2d 1326 (Fla. 1st DCA 1997).

**When defense issues are to be submitted, use the charge contained within this second pair of brackets. In other cases, use the first bracketed sentence instead.

COMMENT

1. Privity. These charges on product liability issues presuppose that any question of privity has been resolved in favor of the claim. For the effect of strict liability doctrine on claims of warranty previously requiring privity, see § 672.318, Florida Statutes Fla. Stat. (1987); Kramer v. Piper Aircraft Corp., 520 So.2d 37, text at 39 and & n. 4 (Fla.1988). Should it be necessary to submit to the jury a factual issue on privity, the committee recommends that it be submitted in the style of a preliminary charge on status or duty as in SJI 3.2.

2. Strict liability (Restatement of Torts 2d § 402A). Charge PL 4, derived from § 402A as adopted in West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla.1976), is appropriate for a strict liability claim against the manufacturer based on an alleged manufacturing flaw in the product. In response to Ford Motor Co. v. Hill, 404 So.2d 1049, 1052 n. 4 (Fla.1981), directing the committee to improve its product liability charge, the committee recommends PL 5 for design defect cases, stating standards for determining when a product is “unreasonably dangerous” because of design.

PL 5 defines “unreasonably dangerous” both in terms of consumer expectations, see comment i to § 402A of the Restatement, and in terms weighing the design risk against its utility?. These concepts are discussed in as expressed in decisions from other jurisdictions. — See, e.g., Radiation Tech. Inc, v. Ware Constr. Co., 445 So.2d 329, 331 (Fla.1983); Cassisi v. Maytag Co., 396 So.2d 1140, 1143-45 (Fla. 1st DCA 1981); Adams v. G.D. Searle & Co., 576 So.2d 728, 733 (Fla. 2d DCA 1991) (dicta), quoting Barker v. Lull-Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443 (1978). Absent more definitive authority in Florida, the committee recommends neither test to the exclusion of the other and expresses no opinion about whether the two charges should be given alternatively or together. PL 5 provides language suitable for either standard, or both, determined by the trial court to be appropriate.

The committee notes, however, that the two issue rule may be implicated if both tests of design defect are used. Zimmer Inc. v. Birnbaum, 758 So.2d 714 (Fla. 4th DCA 2000).

The committee is of the view that, in Florida, the ultimate burden of persuasion in cases submitted to the jury remains with the plaintiff. West, 336 So.2d at 87; but see Barker v. Lull Engineering Co., 20 Cal.3d 413, 143 Cal.Rptr. 225, 573 P.2d 443, at 455-56 (1978), quoted in Cassisi, 396 So.2d at 1145. PL 5 therefore allocates that burden to the plaintiff. The charge is not intended to control issues of the burden of proof or sufficiency of the evidence for directed verdict purposes.

Pending further development of Florida law, the committee reserved the question of whether there can be strict liability for failure to warn and, if so, what duty is imposed on the manufacturer or seller.

3. Obvious defects, opportunity to inspect, disclaimers. These concepts are not covered by the standard charges. See Auburn Machine Works Co., Inc. v. Jones, 366 So.2d 1167 (Fla.1979).

4. Uniform Commercial Code. There are many open questions concerning the meaning and application in Florida personal injury litigation of certain U.C.C. provisions. Compare Schuessler v. Coca-Cola Bottling Company of Miami, 279 So.2d 901 (Fla. 4th DCA 1973), with Ford Motor Co. v. Pittman, 227 So.2d 246 (Fla. 1st DCA 1969), cert. denied, 237 So.2d 177 (Fla.1970). Accordingly, the committee has not undertaken to express U.C.C. concepts, as such, in these jury charges. A U.C.C. provision which is held to be applicable may be read or appropriately paraphrased for the jury. In order to avoid undue emphasis, the committee recommends that the provision read or paraphrased not be identified as a statute.

5. Contributory — (comparative) Comparative negligence. Comparative negligence is a defense to strict liability claims if based on grounds other than the failure of the user to discover the defect or to guard against the possibility of its existence. West v. Caterpillar, supra n. 2. Model charge 6 7 illustrates the defense of contributory — (comparative) comparative negligence in a negligence/express warranty action against a retailer and model charge 7 8 illustrates the same defense in a negligence/strict liability action against a manufacturer and retailer.

6. The committee takes no position regarding whether the injured bystander must be foreseeable. See West v. Caterpillar Tractor Co., Inc., 336 So.2d 80 (Fla. 1976).

7. Pending further development of Florida law, the Committee takes no position on the sufficiency of these instructions in cases in which the Cassisi inference applies. See Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981); Gencorp, Inc, v. Wolfe, 481 So.2d 109 (Fla. 1st DCA 1985); see also Parke v. Scotty’s, Inc., 584 So.2d 621 (Fla. 1st DCA 1991); Miller v. Allstate Ins. Co., 650 So.2d 671 (Fla. 3d DCA 1995).

      . The concept "manufacturing flaw” has been used in only a few reported decisions discussing strict liability issues, the most recent of which was decided in 1984. See Ford Motor Co. v. Hill, 404 So.2d 1049 (Fla.1981); Zyferman v. Taylor, 444 So.2d 1088 (Fla. 4th DCA 1984); Husky Indus., Inc. v. Black, 434 So.2d 988 (Fla. 4th DCA 1983); Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981).

      . In Barth v. Khubani, 748 So.2d 260, 261 (Fla.1999), this Court stated that the two-issue rule provides:

      . Black’s Law Dictionary 311 (7th ed.1999) defines the consumer-expectation test, listed under the "consumer-contemplation test,” as a "method of'imposing product liability on a manufacturer if the evidence shows that a product's danger is greater than what a reasonable consumer would expect.”

      . Black’s Law Dictionary 1329 (7th ed.1999) defines the risk-utility test as a "method of imposing product liability on a manufacturer if the evidence shows that a reasonable person would conclude that the benefits of a product's particular design versus the feasibility of an alternative safer design did not outweigh the dangers inherent in the original design. — Also termed danger-utility test; risk-benefit test.” See also Adams v. G.D. Searle & Co., 576 So.2d 728, 733 (Fla. 2d DCA 1991) (the test weighs a product’s benefits against its known risks); Cassisi v. Maytag Co., 396 So.2d 1140, 1145 (Fla. 1st DCA 1981) (the test weighs the utility of the design versus the magnitude of the inherent risk).

      . In 1973, this Court adopted the comparative negligence doctrine in place of the contributo- . ry negligence doctrine. See Hoffman v. Jones, 280 So.2d 431, 438 (Fla.1973).

      . In Cassisi, the district court of appeal adopted a rule that when a product malfunctions during normal operation, a legal inference of product defectiveness arises, and the injured plaintiff thereby establishes a prima facie case for jury consideration.


author: GREEN, Judge. PER CURIAM.

text:
    STATE of Florida, Appellant, v. Anthony T. BODDEN, Appellee.
    No. 2D01-3535.
    District Court of Appeal of Florida, Second District.
    Oct. 30, 2002.
    Order Granting Certification March 28, 2003.
    Robert A. Butterworth, Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Appellant.
    Eilam Isaak, Tampa, for Appellee.

      . Chief Judge Altenbernd did not participate in the original decision. He has been substituted as a member of the panel because of the death of Judge Parker.

   GREEN, Judge.

The State appeals the order in limine of the county court that barred the State from using as evidence, in the trial of a driving under the influence (DUI) case, the results of Anthony T. Bodden’s urine test, which was administered pursuant to the implied consent law. See § 316.1932(l)(a), Fla. Stat. (2000). In the order, the county judge certified to this court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.160.

IN ADMINISTERING FLORIDA’S IMPLIED CONSENT LAW, IS THE FLORIDA DEPARTMENT OF LAW ENFORCEMENT REQUIRED TO ADOPT RULES IN ACCORDANCE WITH THE FLORIDA ADMINISTRATIVE PROCEDURES ACT GOVERNING THE COLLECTION, PRESERVATION, AND ANALYSIS OF URINE SAMPLES OBTAINED BY LAW ENFORCEMENT PURSUANT TO SECTION 316.1932(l)(a), FLORIDA STATUTES?

We answer the question in the affirmative.

On August 7, 2000, pursuant to section 316.193, Florida Statutes (2000), police issued Mr. Bodden a traffic citation for driving under the influence. Pursuant to section 316.1932(l)(a), Mr. Bodden submitted to a test to determine the alcohol content of his blood. Mr. Bodden’s blood alcohol level was .060 and .065. Mr. Bodden also submitted to a urine test, the results of which were positive for a controlled substance. The State charged him with one count of possession of cannabis and one count of possession of drug paraphernalia, as well as with the DUI charge.

Mr. Bodden filed motions in limine in which he requested the court to forbid any reference at trial to his urine laboratory test results because no regulatory criteria had been promulgated to insure the reliability of the testing procedure. At the hearing on the motions, Mr. Bodden stipulated that he submitted to a urine test and the results were positive for a controlled substance. The State stipulated that if its expert, Marcia Barnhart (a witness in the instant case), had testified about the procedures used in Florida to test urine for the presence of controlled or chemical substances, her testimony would be the same as the deposition testimony of Dale Livingston, which testimony was taken in a different case. Dale Livingston’s deposition is part of the record on appeal.

Mr. Livingston testified in his deposition that as senior analyst for the Florida Department of Law Enforcement (FDLE) laboratory in Tallahassee, it is his responsibility to maintain a methods manual for the purpose of the laboratory testing of urine. He testified that this procedure has not been published in the Administrative Law Weekly or promulgated in accordance with the Administrative Procedures Act because there is no requirement that it be done. He further testified that, as far as he is aware, his laboratory procedures are different from the procedures used by other laboratories and that he believes his procedures produce superior results.

The sole issue in this appeal is the interpretation of section 316.1932(l)(a)(l), which states:

Any person who accepts the privilege extended by the laws of this state of operating a motor vehicle within this state is, by so • operating such vehicle, deemed to have given his or her consent to submit to an approved chemical test or physical test including, but not limited to, an infrared light test of his or her breath for the purpose of determining the alcoholic content of his or her blood or breath, and to a urine test for the purpose of detecting the presence of chemical substances as set forth in s. 877.111 or controlled substances, if the person is lawfully arrested for any offense allegedly committed while the person was driving or was in actual physical control of a motor vehicle while under the influence of alcoholic beverages, chemical substances, or controlled substances.

(Emphasis added.)

The term “approved” applies to a standard rule promulgated under the Administrative Procedures Act. See § 120.50, Fla. Stat. (2000). The State argues that only a test to determine the alcoholic content of a person’s blood or breath has to be approved and not a urine test to determine the presence of chemical or controlled substances.

When a criminal statute is ambiguous and capable of different constructions, it should be construed in favor of an accused. See § 775.021(1), Fla. Stat. (2000); Cabal v. State, 678 So.2d 315 (Fla.1996). With this in mind, we hold that the phrase “approved chemical test or physical test including, but not limited to” in section 316.1932(l)(a)(l) applies to “a urine test for the purpose of detecting the presence of chemical substances ... or controlled substances.”

The State refers to section 316.1932(l)(b)(2), Florida Statutes (2000), which provides that for an analysis of a person’s breath to be considered valid under section 316.1932, it “must have been performed substantially according to methods approved by the Department of Law Enforcement. For this purpose, the department may approve satisfactory techniques or methods.” The State notes that there is no such language in section 316.1932 regarding the validity of a urine test. Section 316.1932(l)(f)(l) states that the FDLE shall adopt rules specifying the methodology to be used in administering breath or blood tests to determine the alcohol content of the blood. Section 316.1932 does not require that the FDLE adopt rules in regard to the administering of urine tests.

The FDLE has adopted rules implementing the implied consent law in chapter 11-D, Florida Administrative Code. Section 11D-8.003 is entitled “Approval of Breath Test Methods and Instruments.” Chapter 11D contains no procedure for testing urine specimens. In Southwest Florida Water Management District v. Charlotte County, 774 So.2d 903 (Fla. 2d DCA 2001), we noted “that a ‘statutory phrase should also be viewed not only in its internal context within the section, but in harmony with interlocking statutes.’ ” 774 So.2d at 916 (quoting WFTV, Inc. v. Wilken, 675 So.2d 674, 679 (Fla. 4th DCA 1996)). Thus, in this instance, in reading section 316.1932(l)(a)(l) in conjunction with sections 316.1932(l)(b)(2) and 316.1932(l)(f)(l), we conclude that an “approved” urine test is one in which the method of administration and the analysis of the test are “performed substantially according to methods approved by” the FDLE. We acknowledge, however, that the methodology for administering a urine test should be somewhat less complex than the methodology necessary for administering a breath or blood test.

We hold also that a urine test taken pursuant to the implied consent law, which is not an approved test, is not admissible as a scientific test pursuant to the traditional rules regarding the admissibility of evidence since consent was not voluntarily given. See State v. Polak, 598 So.2d 150, 153-54 (Fla. 1st DCA 1992) (holding that where breath tests given were not approved tests, the defendants’ consent “was based on misinformation, namely, that their licenses would be suspended for failure to submit to an approved test, [and] the defendants’ consent cannot be deemed voluntary pursuant to” the rule enunciated in State v. Burnett, 536 So.2d 375 (Fla. 2d DCA 1988)).

We therefore affirm the trial judge’s order in limine and remand for further proceedings.

PARKER and CASANUEVA, JJ., Concur.

ON MOTION FOR CERTIFICATION

PER CURIAM.

The State has filed a timely motion for certification. Because the ruling in this case will affect prosecutions statewide and will require administrative action to correct the problem identified in the opinion, this court grants the motion for certification and certifies to the supreme court the same question that was certified by the county court to this court.

ALTENBERND, C.J., and’ CASANUEVA, J., and GREEN, OLIVER L., Senior Judge, concur.


author: VILLANTI, Judge.

text:
    Duane D. HILL, Jr., Appellant, v. Edward D. MURPHY and Arlene R. Murphy, Appellees.
    No. 2D03-892.
    District Court of Appeal of Florida, Second District.
    Sept. 12, 2003.

      Tina L. Caraballo of Hayes & Associates, Orlando, for Appellant.
    Brian P. Deeb and Theresa A. Deeb of Deeb & Brainard, P.A., St. Petersburg, for Appellees.
   VILLANTI, Judge.

Duane Hill appeals the trial court’s order denying his motion to set aside the default and the default judgment entered against him in a suit brought by Edward and Arlene Murphy. Because the Mur-phys did not provide Hill with notice of the hearing on their motion for default judgment, we reverse that portion of the order that refused to set aside the default judgment. However, because Hill did not properly establish a meritorious defense, we affirm that portion of the order that refused to set aside the default.

On May 28, 2002, the Murphys sued Hill, Mark S. Kiser, and Hill Design and Construction, Inc., for damages arising out of their failure to complete an addition to the Murphys’ house. The complaint alleged counts against Hill for negligent supervision, civil conspiracy, and violations of Florida’s Deceptive and Unfair Trade Practices Act (FDUTPA). Despite being served with the complaint, Hill never filed an answer. On July 5, 2002, the clerk entered a default against Hill. Because Kiser and Hill Design and Construction had filed answers, the case continued as to them.

On September 3, 2002, the trial court rendered a final default'judgment against Hill for $68,303.48. Hill first learned of the default judgment when he was served with a notice of taking deposition in aid of execution on September 5, 2002. Hill then promptly moved to set aside both the default and the default judgment. Hill filed an affidavit in support of his motion, asserting that he had not been served with the complaint, that he had never received notice of the entry of final judgment, that he had never signed a contract or entered into an agreement with the Murphys, and that he did not know of any basis for a suit against him. After an evidentiary hearing, the trial court denied Hill’s motion in its entirety. This appeal followed.

On the issue of setting aside the default, the parties agree that Hill had the burden to establish due diligence in moving to set aside the default, excusable neglect in failing to respond to the complaint, and a meritorious defense to the allegations of the complaint. Coquina Beach Club Condo. Ass’n v. Wagner, 818 So.2d 1061, 1063 (Fla. 2d DCA 2002). The only issue truly in dispute is whether Hill- established a meritorious defense.

This court has repeatedly held that in order to establish a meritorious defense, the defendant must tender either a defensive pleading showing the defense or a sworn motion or affidavit stating the facts supporting the meritorious defense. Id. at 1064; Collins v. Collins, 519 So.2d 729, 730 (Fla. 2d DCA 1988); Abray Constr. Co. v. Star Swimming Pools, Inc., 426 So.2d 1046, 1047 (Fla. 2d DCA 1983). Counsel’s bare assertion in an unsworn motion that the defendant has a meritorious defense is legally insufficient to allow the court to set aside the default. Abray Constr., 426 So.2d at 1047.

In this case, Hill filed an affidavit in support of his motion to set aside the default in which he asserted that he did not sign a contract with or enter into any agreement with the Murphys. While this assertion does constitute a factual allegation in an affidavit, it does not establish a meritorious defense. The counts against Hill allege negligent supervision, civil conspiracy, and violations of the FDUTPA. None of these counts depend on the existence of a contract between Hill and the Murphys. A factual allegation that does not meet the substance of the allegations against the affiant does not and cannot state a “meritorious” defense. Moreover, Hill’s attorney’s conclusory assertion that “[cjlearly, Duane D. Hill, Jr. has a meritorious defense to this case” is legally insufficient. Accordingly, the trial court did not abuse its discretion in refusing to set aside the clerk’s default.

As an alternative, Hill contends on appeal that the default should be set aside because the complaint fails to state a cause of action against him. However, Hill’s arguments addressed to the complaint do not attack the sufficiency of the allegations but, rather, contest the merits of the claims. This is .an improper basis for a motion to dismiss for failure to state a cause of action. See Consuegra v. Lloyd’s Underwriters at London, 801 So.2d 111, 112 (Fla. 2d DCA 2001) (noting that a motion to dismiss for failure to state a cause of action is not a substitute for summary judgment and that in ruling on such a motion the trial court must consider only the allegations contained within the four corners of the complaint). Therefore, the trial court did not abuse its discretion in refusing to set aside the default.

The trial court’s order refusing to set aside the default judgment is another matter. As to the default judgment, Hill argued that he was entitled to notice of the hearing on the motion for entry of ;a final default judgment even though he had been defaulted because the damages the Mur-phys sought were unliquidated. Hill asserted that the Murphys did not provide him with the required notice and that this lack of notice required that the default judgment be set aside. We agree.

This court recently addressed the identical issue concerning a default judgment involving unliquidated damages:

Although the issue of liability was properly determined without an eviden-tiary hearing, the trial court erred in awarding damages ... without holding a hearing because the damages were not liquidated. Florida Rule of Civil Procedure 1.440(c) requires a. hearing on claims for unliquidated damages, even if a party has been defaulted. Pierce v. Anglin, 721 So.2d 781, 788 (Fla. 1st DCA 1998); Tand v. C.F.S. Bakeries, Inc., 559 So.2d 670, 671 (Fla. 3d DCA 1990). Damages are unliquidated when their ascertainment requires the taking of testimony. Pierce, 721 So.2d at 783; Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662 (Fla. 5th DCA 1983). Damages are liquidated when they can be determined by mathematical calculation or the application of definite rules of law. Charlotte Harbor Props. Assocs., Ltd. v. Huff, 632 So.2d 229, 229 (Fla. 2d DCA 1994); Bowman, 432 So.2d at 662.

Medcom USA, Inc. v. Ryder Homes & Groves Co., 847 So.2d 594, 596 (Fla. 2d DCA 2003); see also Fiera.com, Inc. v. DigiCast New Media Group, Inc., 837 So.2d 451, 452 (Fla. 3d DCA 2002).

Here, as in Medcom, the damages were unliquidated. The Murphys’ complaint alleged only that their damages exceeded $15,000. Nothing in the record shows that the Murphys’ damages could be determined by either mathematical calculation or the application of a specific rule of law. Because the Murphys’ damages were unliquidated, Hill was entitled to an evidentiary hearing on the amount of damages even though he had been defaulted. Further, under rule 1.440(c), he was entitled to notice of that hearing. While the Murphys asserted at the hearing that they had sent a notice of hearing to Hill, the trial court reviewed the record and noted that the only notice was mailed after the default judgment against Hill had already been entered. Accordingly, it is apparent that Hill had no notice of the hearing. Because Hill was entitled to notice of the hearing at which he could challenge the amount of damages to be imposed, the trial court abused its discretion in refusing to set aside the default judgment.

The Murphys argue that Hill cannot raise the notice issue on appeal because he did not allege this as a basis for setting aside the default judgment in his motion. This ignores the fact that Hill raised and argued this issue at.the hearing on his motion to set aside the default judgment. The Murphys did not object to the argument at the hearing and did not request a continuance to provide the proof of notice that they now allege exists. Because the Murphys did not object when Hill raised this issue at the hearing, they cannot now object on appeal. Parlier v. Eagle-Picher Indus., Inp., 622 So.2d 479, 481 (Fla. 5th DCA 1993) (noting that the general rule of appellate review that issues not raised in the trial court will not be considered on appeal applies to procedural irregularities as well as substantive issues). Accordingly, we reverse the default judgment and remand for further proceedings.

Affirmed in part; reversed, in part; and remanded for further proceedings.

SALCINES and WALLACE, JJ., Concur.


author: SCHWARTZ, Chief Judge.

text:
    Diamy CAMACHO, Petitioner, v. KENDALL HEALTHCARE GROUP, LTD., d/b/a Kendall Medical Center, Respondent.
    No. 3D03-2930.
    District Court of Appeal of Florida, Third District.
    Nov. 26, 2003.

      Amarillys E. Garcia-Perez; Robert M. Haggard, Miami, for petitioner.
    Parenti, Falk, Waas, Hernandez & Cor-tina and Gail Leverett Parenti, Coral Gables, for respondent.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   SCHWARTZ, Chief Judge.

This is an application for prohibition claiming that the trial judge should have granted the plaintiffs motion for disqualification filed after a mistrial was declared during a jury trial. The record shows that the now-challenged actions of the trial court did not stem, as the petitioner contends, from any disqualifying personal bias or prejudice towards her or her counsel. See Code of Judicial Conduct, Canon-3 E(l)(a). Rather, they involved well-considered and appropriate exercises of “judicial responsibility to take corrective action” against manifest improprieties. Birotte v. State, 795 So.2d 112, 113 (Fla. 4th DCA 2001), review denied, 819 So.2d 132 (Fla.2002). Prohibition is therefore denied. See State ex rel. Fuente v. Himes, 160 Fla. 757, 36 So.2d 433, 438-39 (1948)(“A lawyer cannot disagree with the court and deliberately provoke an incident rendering the court disqualified to proceed further.”); Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996)(“A trial judge’s expression of dissatisfaction with counsel or a client’s behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client cannot receive a fair trial.”), review denied, 699 So.2d 1373 (Fla.1997). See generally 5-H Corp. v. Padovano, 708 So.2d 244 (Fla.1997); see also Kopel v. Kopel, 832 So.2d 108 (Fla. 3d DCA 2002) (Schwartz, C.J., specially concurring in denial of rehearing en banc), review denied, 848 So.2d 1154 (Fla.2003).

Prohibition denied.

      . Particularly the parts supplied only by the respondent.

      . It is unnecessary to resolve the separate, substantial issue of the timeliness of the motion for disqualification below. See Fla. R.Jud. Admin. 2.160(e).


text:
    Timothy WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-4535.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Rehearing Denied May 21, 2004.

      Timothy Wilson, pro se, petitioner.
    Charlie Crist, Attorney General, and Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Upon consideration of petitioner’s response to this court’s order dated January 21, 2004, the petition for writ, of mandamus is dismissed as moot.

DISMISSED.

BARFIELD, KAHN and HAWKES, JJ., concur.


text:
    Lamontaque GILYARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-2477.
    District Court of Appeal of Florida, First District.
    March 11, 2004.
    Rehearing Denied May 21, 2004.
    Lamontaque Gilyard, pro se.
    Charles J. Crist, Jr., Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Lamontaque Gilyard, appeals the denial of various postconviction claims. We affirm without discussion all but one claim. In appellant’s second claim, he alleges his defense counsel was ineffective for failing to file a legally sufficient motion for a new trial. The trial court failed to address this claim. Accordingly, we reverse and remand for the trial court to either attach portions of the record conclusively refuting the appellant’s claim, or for an evidentiary hearing. See Parker v. Dugger, 660 So.2d 1386, 1389 (Fla.1995) (“We will not rule upon the merits of those claims when the trial court never reached the merits below”).

DAVIS, VAN NORTWICK and HAWKES, JJ., concur.


author: STRINGER, Judge. SILBERMAN, Judge,

text:
    In the Interest of E.I.F., a child. J.H., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-5133.
    District Court of Appeal of Florida, Second District.
    March 12, 2004.
    Rehearing Denied May 27, 2004.

      Alyssa L. Katz of Michael P. Maddux, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Ap-pellee.
   STRINGER, Judge.

J.H., the Father, seeks review of the trial court’s order adjudicating E.I.F. dependent and terminating his parental rights to E.I.F. The Father does not challenge the adjudication of dependency but argues that the trial court erred in terminating his parental rights pursuant to section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f), Florida Statutes (2002). We affirm the adjudication of dependency and reverse the termination of parental rights.

E.I.F. was born on November 24, 2001, and sheltered by the Department of Children and Family Services (the Department) two days later based on allegations of the Mother’s continuing involvement with the Department and the pending termination of parental rights of the Mother’s other children. The Father was incarcerated at the time of E.I.F.’s birth and was not identified as the Father of E.I.F. until February 2002. In March 2002, the Department filed a petition for termination of parental rights as to both parents. The petition alleged that termination was proper under section 39.806(l)(c), (l)(d)(l), (l)(d)(3), and (l)(f).

At the time of the trial, E.I.F. was almost eight months old. The Department had placed E.I.F. in the custody of the Father’s sister, who is seeking adoption. The Mother consented to the termination of her parental rights.

The Father testified that he had been incarcerated for the past year and two months. He was incarcerated for violating probation by failing to attend an appointment with his probation officer, failing to complete his community service hours, and failing to pay restitution on an aggravated battery or aggravated assault charge that occurred in 1998 or 1999. He also admitted he had been in prison in 1994 for aggravated assault or aggravated battery of a law enforcement officer.

The Father testified that he was willing to pay child support for E.I.F. and expressed an interest in becoming involved in E.I.F.’s life. The Father had previously contacted his sister to request photographs of E.I.F. He explained that with credit for gain time, he expects to be out in 2007.

The Department of Corrections submitted reports listing the Father’s tentative release date from prison as March or June 2010. The Father’s “85% Release Date” was listed as December 8, 2008.

The Father’s ex-wife, who is not the mother of E.I.F., testified that the Father’s drug use contributed to their divorce in 1991 or 1992 and that he did not deal well with the divorce. On one occasion the Father threatened suicide in front of the ex-wife and their two young children. On another occasion, the Father threatened to burn the house down and harm her or the children if any more child support was taken out of his paycheck. The ex-wife only received child support for approximately the first year and a half after their divorce. The Father had virtually no involvement with their children when he was not incarcerated. However, when he was incarcerated, the Father sent the children cards and called monthly to speak with the children. She testified that the Father is a good person but that his priorities are mixed up.

The Father testified that he received six months of psychiatric treatment at North-side Psychiatric Hospital after the suicide threat. In 1994 he voluntarily entered drug treatment in prison and he testified that he has not used drugs since. The record does not contain any evidence of suicidal tendencies since the incident in 1991 or 1992. In fact, the record does not contain any evidence of any violent acts committed by the Father towards or in front of his two older children since that incident. Regardless, the trial court found that the Father’s conduct towards his older children constituted clear and convincing evidence to support termination under section 39.806(l)(e), (l)(d)(3), and (l)(f).

Section 39.806(l)(c) provides for termination of parental rights when the Department proves by clear and convincing evidence that the parent “engaged in conduct toward ... other children that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child irrespective of the provision of services.” The trial court found that clear and convincing evidence supported termination of the Father’s parental rights to E.I.F. under this section based on the Father’s suicide threat, threats toward his other children, drug use, and his failure to maintain a relationship with his other children or pay child support.

While this evidence does show conduct towards the Father’s other children that-demonstrated that the Father’s continuing involvement would have been detrimental to those children in the early 1990s before his treatment, it does not support the trial court’s finding of clear and convincing evi-dencé that the Father’s continuing involvement with a child who was born almost ten years later to a different mother would be detrimental to that child and threaten the child’s life, safety, or well-being. See D.S. v. Dep’t of Children & Families, 842 So.2d 1071, 1072 (Fla. 4th DCA 2003) (holding that a court may not terminate parental rights based on a parent’s criminal history absent evidence linking the criminal acts to the child’s well-being); L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002) (holding that the trial court erred in terminating the mother’s parental rights under section 39.806(l)(c) based on her domestic violence against the father when she had received treatment for same, had been taking her medication, and the parties had separated).

Certainly if the Father was suicidal at present, E.I.F.’s safety or well-being might be threatened; however, the Father received psychological treatment after his suicide threat, and there is no evidence of any suicidal or violent acts of the Father in front of or toward any of his children for almost a decade. Likewise, the Father testified that he received drug treatment in 1994 and there is no evidence of drug use by the Father since. Finally, the Father’s failure to pay child support for or to maintain a relationship with his older children does not support the trial court’s finding of clear and convincing evidence of conduct that would “threaten[ ] the life, safety, well-being, or physical, mental, or emotional health of the child.”

For the same reasons that the Father’s conduct towards his older two children does not support the trial court’s finding of clear and convincing evidence “that demonstrates that the continuing involvement of the parent or parents in the parent-child relationship threatens the life, safety, well-being, or physical, mental, or emotional health of the child,” it does not support the trial court’s finding of clear and convincing evidence “that continuing the parental relationship with the incarcerated parent would be harmful to the child” under section 39.806(l)(d)(3), or of “egregious conduct ... that threatens the. life, safety, or physical, mental, or emotional health of the child or the child’s sibling” under section 39.806(l)(f). Thus, the trial court erred in terminating the Father’s parental rights under section 39.806(l)(c), (l)(d)(3), and (l)(f).

The trial court also based its termination on section 39.806(l)(d)(l), which provides for termination of parental rights if the Department proves by clear and convincing evidence that the parent is incarcerated and the time of incarceration will be a “substantial portion of the period of time before the child will attain the age of 18 years.” The trial court terminated the Father’s parental rights under this section based on its finding that the Father will be incarcerated for the first eight years of E.I.F.’s minority. The court explained,

In other words, it is the first eight years of his life, when he will be learning to talk, learning to walk, learning to eat, starting school, and learning to read. Experiencing those milestones without having ever met his father or had any personal contact with him is a substantial portion of the child’s minority, though admittedly, not a majority of the time before he reaches the age of 18.

However, the trial court is not to consider the quality of the time, but “only the length of time the parent will be incarcerated in determining whether that period constitutes a ‘substantial portion of the period of time’ before the child reaches age eighteen.” J.W. v. Dep’t of Children & Family Servs. (In re AW.), 816 So.2d 1261, 1264 (Fla. 2d DCA 2002). The inquiry is “whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen.” J.P.C. v. Dep’t of Children & Family Servs. (In re J.D.C.), 819 So.2d 264, 266 (Fla. 2d DCA 2002). But see Dep’t of Children & Family Servs, v. B.C., 28 Fla. L. Weekly D2009, — So.2d -, 2003 WL 22014737 (Fla. 4th DCA Aug.27, 2003) (holding that the time a parent has been incarcerated in the past should be considered under section 39.806(l)(d)(l) and certifying conflict with In re J.D.C. on this issue), review granted, 860 So.2d 976 (Fla.2003).

The trial court’s finding that the Father will be incarcerated for eight years does not support its finding of clear and convincing evidence of incarceration for a “substantial portion of time” before E.I.F., who was only eight months old at the time of the trial, reaches eighteen. Cf. In re AW., 816 So.2d at 1263 (holding that incarceration for fifty-four months will not constitute a substantial portion of the remaining minority of a four-year-old or one-year-old child). The period of incarceration will not even constitute half of the time before E.I.F. reaches majority. Therefore, the trial court also erred in terminating the Father’s parental rights under section 39.806(l)(d)(l).

The dissent would rely on the Fourth District’s decision in B.C., 28 Fla. L. Weekly D2009, — So.2d-, to support its determination that the length of the Father’s incarceration will constitute a substantial portion of the time period before the child reaches eighteen. However, as noted above, the Fourth District considers the time a parent has been incarcerated in the past, while this court considers only the future period of incarceration. In B.C., the Fourth District held that a period of incarceration of seven years and nine months was sufficient to support termination under section 39.806(l)(d)(l), but it is not clear how much of this term was future incarceration. Id. at D2009, — So.2d at-. Regardless, for the reasons stated above, we disagree with the Fourth District’s conclusion that incarceration for seven years and nine months constitutes a substantial portion of the time before a child who is three months old reaches eighteen.

Because none of the cited grounds support termination of the Father’s parental rights, we reverse the portion of the order terminating the Father’s parental rights.

Affirmed in part, reversed in part, and remanded.

WALLACE, J., Concurs.

SILBERMAN, J., Concurs in part and dissents in part.

SILBERMAN, Judge,

Concurring in part and dissenting in part.

For the reasons stated in the majority’s opinion, I agree that the trial court erred in terminating the Father’s parental rights under section 39.806(l)(c), (l)(d)(3), and (l)(f), Florida Statutes (2002). However, I disagree with the majority’s conclusion that the trial court erred in terminating the Father’s parental rights under section 39.806(l)(d)(l).

Section 39.806(l)(d)(l) states that the Department of Children and Family Services may petition the court for termination of parental rights when the parent is incarcerated and “[t]he period of time for which the parent is expected to be incarcerated will constitute a substantial portion of the period of time before the child will attain the age of 18 years.” A trial court must “evaluate whether the time for which a parent is expected to be incarcerated in the future constitutes a substantial portion of the time before the child reaches eighteen.” J.P.C. v. Dep’t of Children & Family Servs. (In re J.D.C.), 819 So.2d 264, 266 (Fla. 2d DCA 2002).

Although the Father was incarcerated before the child was born, the pertinent period of incarceration is ninety-two months, computed from the termination hearing on July 22, 2002, to an anticipated release date of March 17, 2010. From the termination hearing until the child turns eighteen,. the amount of time is 208 months. Thus, the period of incarceration compared to the period of time from the termination hearing until the child turns eighteen is slightly more than 44% of the child’s life. In my view, the Father’s incarceration for 44% of the child’s life to age eighteen constitutes a substantial portion of the relevant time frame within the meaning of section 39.806(l)(d)(l).

In Department of Children & Family Services v. B.C., 28 Fla. L. Weekly D2009, — So.2d - (Fla. 4th DCA Aug.27, 2003), review granted, 860 So.2d 976 (Fla. 2003), the Fourth District considered a similar situation, involving a seven-year, nine-month sentence. There, if the father were released on his projected release date, the child would be eight years old and the father would have been out of prison for only three months of the child’s life. The court discussed the statutory language and stated that “[t]he term used in the statute, ‘substantial’ means ‘considerable in importance, value, degree, amount, or extent.’ ” Id. at D2009, — So.2d at —— (quoting The American Heritage Dictionary of the English Language 1284 (1981)). It concluded that the seven-year, nine-month period of incarceration was a substantial portion of the time period before the child would turn eighteen and warranted termination of the father’s rights under section 39.806(l)(d)(l).

Here, the trial court’s analysis of the Father’s incarceration is consistent with B.C. When the Father is released the child will be over eight years old and the Father will have been imprisoned for all of the child’s life to that point in time. The difference in the length of incarceration is one month less than the time involved in B.C., which I do not believe to be sufficient to change the outcome.

The majority notes that the period of incarceration involved in this case does not constitute half of the time before the child reaches majority. However, in section 39.806(l)(d)(l) the legislature did not create a bright-line rule to fit every case. Based on the language of the statute, I cannot agree that the trial court erred in finding that termination is warranted when the Father’s period of incarceration constitutes 44% of the child’s life to the age of eighteen. Although 44% does not constitute. half of the time before the- child’s majority, it is, as contemplated by the statute, a substantial portion of the period of time before the child reaches the age of majority.

Once a trial court concludes that the future period of incarceration is a sufficient basis to support termination, then it must consider the child’s manifest best interests. See § 39.810. Here, the trial court considered all of the statutory best interest factors, and the record contains ample evidence to support the trial court’s conclusion that termination is in the child’s manifest best interests. The trial court made detailed findings, as follows: (1) there is a suitable permanent custody arrangement with a relative; (2) the Father did not show a disposition to provide for the needs of his other children, and due to his prior incarceration as well as his current incarceration, he does not have the ability to provide for this child’s needs; (3) the Father “does not have the capacity to care for [the child] to the extent that [the child’s] safety, well-being, physical, mental, or emotional health would not be endangered if he were to return home to [the Father] once [the Father] was released from incarceration”; (4) the child has no extraordinary needs; (5) because of the child’s young age, he would not be harmed by termination, particularly as the mother surrendered her parental rights and the child has not known his father nor met any of his siblings; (6) the child has bonded with his aunt, and it is extremely likely he will enter a more stable and permanent family relationship as a result of termination; (7) the child’s current living arrangement is a stable, satisfactory environment, there is a high desirability in maintaining that continuity, and the placement has been for a significant portion of the child’s life; and (8) the guardian ad litem recommends termination.

Based on the record before us, I cannot agree with the majority’s decision concerning termination under section 39.806(l)(d)(l). I conclude that the trial court properly found that the Father’s lengthy period of incarceration and the child’s manifest best interests warranted termination. Therefore, I would affirm the termination order.

      . These children were not the Father’s children.

      . Results of a paternity test indicating that J.H. was the Father of E.I.F. were filed with the court on April 22, 2002. E.I.F.'s birth certificate does not list a father.

      . Eight years represents the time between the July 2002 trial and June 2010, which is the latest possible release date for the Father based on Department of Corrections reports.

      . At the time of the termination, hearing, the child was eight months old. The Father was not listed on the child’s birth certificate, but he testified that even before the child’s birth on November 24, 2001, he believed that he was the father.

      . The record contains information from the Department of Corrections showing two tentative release dates: March 17, 2010, and June 8, 2010. The time computations discussed herein rely on the earlier date, which is to the Father’s benefit. Although potential gaintime may possibly result in the Father being released as early as December 2008, that possible release date is not taken into account because of the uncertainties involved with gaintime.

      . The percentage is derived by dividing ninety-two months (the future period of incarceration) by 208 months (the time period from the termination hearing to the date the child turns eighteen).

      . In B.C., the Fourth District certified conflict with this court’s decisions in In re J.D.C. and J.W. v. Department of Children & Family Services (In re A.W.), 816 So.2d 1261 (Fla. 2d DCA 2002). The Fourth District uses the entire period of incarceration, whereas this court only considers the future period of incarceration. For the purpose of the foregoing computations, only the future period of incarceration was considered. ' If the Fourth District's method of computation were used, the figure for the Father’s period of incarceration would be greater than ninety-two months.

      . Potentially, the best interests analysis may lead a trial court to deny termination even though the period of incarceration is sufficient to meet the statutory threshold. For example, the result in a situation where the parent and child have formed a substantial and abiding bond before the parent’s incarceration could differ from the result in a situation, such as the present one, where the Father and the child had formed no bond prior to the Father's incarceration. Based on the record before us, I find no fault with the trial court's analysis of the child's best interests.


author: PADOVANO, J.

text:
    Kenneth and Yvonne POMPI, Roger and Paulette Walker, and Charles Currie, Appellants, v. CITY OF JACKSONVILLE, Appellee.
    No. 1D03-3175.
    District Court of Appeal of Florida, First District.
    March 23, 2004.
    Rehearing Denied May 21, 2004.
    Amy Brigham Boulris of Brigham Moore, LLP, Miami, for Appellants.
    Stephen D. Busey and Joel Settembrini, Jr., of Smith, Hulsey & Busey, Jacksonville, for Appellee.
   PADOVANO, J.

This is an appeal from an order denying a motion under rule 1.540(b) of the Florida Rules of Civil Procedure. We conclude that the relief requested in the motion is not barred by the doctrine of the law of the case, and that the motion should have been granted on the ground of excusable neglect. Therefore, we reverse.

The appellants were landowners and defendants in an eminent domain proceeding in Jacksonville. A jury determined the value of their property, and the trial judge rendered a final judgment on the verdict. The judgment contains two stamps. One is marked “Filed” and it runs vertically along the right edge of the page. This stamp is printed with narrow and closely spaced characters, but it is legible by a careful examination. It states that the final judgment was filed with the clerk of the court on January 24, 2003. The other stamp is marked “Filed & Recorded” and it runs horizontally. This one is printed in a recognizable typeface and it is easier to read. It reveals that the final judgment was filed and recorded in the official records on January 30, 2003.

When the landowners decided to appeal the final judgment, their lawyers in Jacksonville transferred the case to an appellate lawyer in the firm’s Miami office. A secretary in the Jacksonville office called the clerk of the court and was informed that the judgment had been rendered on January 30, 2003. She made a memorandum of this conversation and sent it along with a copy of the judgment to appellate counsel in Miami. The appellate lawyer noticed both stamps on the judgment, but she associated the date in the secretary’s memorandum with the stamp marked “Filed & Recorded,” rather than the one marked “Filed,” and, as a consequence, she calendared the appeal time from January 30, 2003. She filed the notice of appeal on February 28, 2003, in the mistaken belief that it was timely.

The City filed a motion in this court to dismiss the appeal for lack of jurisdiction. Because the notice of appeal appeared to be late, we issued an order to show cause. In response to this order, the landowners requested that the time for appeal be recalculated from January 30, 2003. Alternatively, they requested that the court dismiss the appeal without prejudice to their right to pursue a rule 1.540(b) motion in the trial court. This court dismissed the appeal without an opinion. See Pompi v. City of Jacksonville, 845 So.2d 190 (Fla. 1st DCA 2003). The per curiam decision states in its entirety, “Dismissed.”

Following the dismissal of the appeal, the landowners filed a motion in the trial court under rule 1.540(b), contending that the final judgment should be vacated on the ground of excusable neglect. The trial court found that the stamp marked “Filed” plainly showed that the judgment had been rendered on January 24, 2003. Based on this finding, the trial court concluded that the landowners had proper notice of the final judgment and that they were not entitled to relief under rule 1.540(b).

Additionally, the trial court determined that the relief requested in rule 1.540(b), was barred by the doctrine of the law of the case. The trial court reasoned that further litigation of the issue was barred, because this court had declined the opportunity to dismiss the appeal without prejudice. The landowners filed a timely notice of appeal from the order denying the motion to vacate.

At the outset we must determine whether the issue presented by the appeal has been settled as the law of the case. When an appellate court has decided an issue of law, the decision becomes the law of the case and it is binding on the trial court in subsequent proceedings in the same case. See Florida Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001); Brunner Enters., Inc. v. Dep’t of Revenue, 452 So.2d 550 (Fla.1984). With limited exceptions, the decision is also binding on the appellate court in future appeals in the same case. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965).

The doctrine of the law of the case is based on the appellate court’s decision, not its opinion. For this reason, the Florida courts have held that an appellate decision that is accompanied only by the statement, “Affirmed,” is the law of the case. See Canty v. State, 715 So.2d 1033, 1033 (Fla. 1st DCA 1998); Comm’n on Ethics v. Sullivan, 430 So.2d 928, 932 (Fla. 1st DCA 1983); New England Ins. Co. v. Int’l Bank of Miami N.A., 537 So.2d 1025, 1025-1026 (Fla. 3d DCA 1988); Russell v. Florida Ranch Lands, Inc., 441 So.2d 190, 191 (Fla. 5th DCA 1983). An affirmance, even if unexplained, is a decision on the merits of the case.

That is not true, however, with respect to a dismissal. By its nature, an order dismissing an appeal signifies that the court did not reach the merits. In the present case, the notice of appeal was not filed within the applicable time limit, and we entered an order dismissing the appeal for lack of appellate jurisdiction. This order resolves only the preliminary question whether the court had judicial power to review the judgment. The order does not address, much less adjudicate, the merits of the controversy, and it has no impact on any remedy the parties may have in another forum.

During the oral argument, counsel for the City pointed out that appellate courts occasionally dismiss appeals without prejudice. That observation is unfortunately correct. But in the context of an order dismissing an appeal, the phrase “without prejudice” is unnecessary. It adds nothing to that which is inherent in the order itself. The dismissal of an appeal for lack of appellate jurisdiction is necessarily a decision made without prejudice to the appellant’s right to pursue whatever remedies may still exist. The doctrine of the law of the case assumes that an issue was decided in the appellate court. Yet the very point of a dismissal for lack of jurisdiction is that the court lacks judicial power to make a decision.

We also reject the City’s alternative argument that the landowners failed to establish excusable neglect. The case for a finding of excusable neglect in this case is at least as strong as the one made in Williams v. Roundtree, 464 So.2d 1293 (Fla. 1st DCA 1985). There, we reversed the denial of a rule 1.540(b) motion in part because a judicial assistant had given counsel the incorrect date of rendition, and in part because the file stamp was “more difficult to observe” than the subsequent recording stamp. Id. 464 So.2d at 1294.

In the present case, the file stamp is legible on close examination, but the form and placement of the stamp make it much less noticeable than the recording stamp. Appellate counsel made a mistake in reading the two stamps. She accepted full responsibility for her error and did not attempt to blame the clerk of the court. We agree that the clerk bears no responsibility, but the fact that a deputy court clerk made precisely the same mistake when reporting the filing date on the telephone is at least some indication that counsel’s error was justifiable. Under the circumstances, we think that the error should be excused.

For these reasons, we conclude that the trial court erred in denying the landowners’ rule 1.540(b) motion. The proper remedy on remand is to vacate the original final judgment and render a judgment from which the landowners may file a timely appeal.

Reversed.

BOOTH and BROWNING, JJ., concur.