author: LEWIS, J. MINER, J., WOLF, J.,

text:
    JACKSON COUNTY HOSPITAL CORPORATION d/b/a Jackson Hospital, Appellant/Cross-Appellee, v. Darlene ALDRICH and Michael Coniglio as Co-Representatives of the Estate of William E. Roddenberry, Jr., on Behalf of the Estate and Survivors, Appellees/Cross-Appellants; and Bay Anesthesia, Inc., Appellant/Cross-Appellee, v. Darlene Aldrich and Michael Coniglio as Co-Representatives of the Estate of William E. Roddenberry, Jr., on Behalf of the Estate and Survivors, Appellees/Cross-Appellants.
    Nos. 1D01-4079, 1D01-4042.
    District Court of Appeal of Florida, First District.
    Dec. 27, 2002.
    Rehearing Denied Jan. 27, 2003.

      G. Bruce Hill and Daniel S. Green, of Hill, Adams, Hall & Schieffelin, P.A., Winter Park, for Appellant/Cross-Appellee Jackson Hospital.
    V. James Facciolo, of Hayden & Fae-ciolo, P.A., Fernandina Beach, for Appellant/Cross-Appellee Bay Anesthesia, Inc.

      Donald M. Hinkle, of Hinkle & Foran, Tallahassee; and Louis K. Rosenbloum, of Louis K. Rosenbloum, P.A., Pensacola, for Appellees/Cross-Appellants.
   LEWIS, J.

As these two cases originated from one trial and as many of the factual and legal issues apply in both cases, we have consolidated the two cases for purposes of this opinion. Appellant Jackson Hospital (“JH”) challenges the jury verdict finding it liable for the reckless disregard of one of its emergency room physicians. JH raises two issues on appeal. JH argues that the trial court erred in failing to grant its motions for directed verdict, motion for new trial, and motion for judgment notwithstanding the verdict as the evidence presented at trial was legally insufficient to prove both reckless disregard and causation. In viewing the facts in the light most favorable to appellees, Darlene Aid-rich and Michael Coniglio (“appellees”), the co-representatives of the estate of William E. Roddenberry (“Roddenberry”), we conclude that the trial court erred in denying JH’s motions for directed verdict and motion for judgment notwithstanding the verdict. We, therefore, reverse and remand for entry of judgment in favor of JH. We affirm JH’s other argument on appeal without further discussion.

Appellant Bay Anesthesia, Inc. (“Bay”) raises three issues on appeal. Bay first argues that the reckless disregard standard set forth in section 768.13(2)(b)l., Florida Statutes (1997), applies to its contract nurse anesthetist who provided care to a critically burned patient in JH’s emergency room. In addition to this argument, Bay contends that unless section 768.13(2)(b)l. is construed to extend to contract health care providers who provide eare in hospitals, such denial would violate the constitutional protection of equal protection. We affirm on this issue and hold that because Bay’s contract nurse anesthetist is not a member of any of the classes clearly enumerated in section 768.13(2)(b)l., Bay was properly held to the lesser standard of negligence. We affirm Bay’s second and third arguments without further discussion. Appellees argue on cross-appeal that if this Court affirms liability as to either JH or Bay but reverses as to the other, the party for whom the liability has been affirmed should be responsible for 100 percent of appellees’ damages. Because we reverse the judgment as to JH and affirm liability as to Bay, we agree with appellees and hold that Bay is responsible for 100 percent of appellees’ damages. Accordingly, we reverse the judgment against Bay for forty percent of appellees’ damages and remand with instructions that the trial court enter judgment against Bay for 100 percent of the jury’s damages award.

I. Factual Background

Both cases arose from a wrongful death complaint filed against appellants by ap-pellees on behalf of Roddenberry. Roddenberry was severely burned at his place of employment when he used a cutting torch on a barrel containing flammable liquid. Following the initial explosion that occurred, Roddenberry was engulfed in flames for approximately thirty seconds. As a result, he suffered second and third degree burns over eighty-five percent of his body. A paramedic arrived at the scene of the accident shortly thereafter and transported Roddenberry to JH in order that he could be stabilized while waiting to be transported by helicopter to a major burn institution.

Roddenberry arrived at JH at 9:50 a.m., approximately thirty-five minutes after the paramedic had initially arrived at Roddenberry’s place of employment. A Foley catheter was immediately inserted into Roddenberry’s bladder, indicating clear urine. However, despite having received 100 percent oxygen for thirty minutes in the ambulance, Roddenberry’s arterial blood-gas level was only 66.2 and he was noted to be breathing twenty-eight times per minute as compared with the normal rate of twelve to fourteen respirations per minute. These levels indicated that Roddenberry was suffering from severe oxygen deprivation. As such, Dr. Griffin, JH’s emergency room physician, decided that Roddenberry required an endotra-cheal intubation. Thus, Teresa Cruce, a certified registered nurse anesthetist (“CRNA”) employed by Bay, was called to the emergency room to perform the intu-bation. Cruce was working at JH pursuant to a contract between JH and Bay. Pursuant to this contract, JH and Bay agreed that Bay at all times would act as an independent contractor and not as a partner of JH. The anesthetists were not permitted to act or hold themselves out to third parties as a partner, employee, or agent of JH.

At trial, Cruce testified that, after assessing Roddenberry’s condition, she was unable to see Roddenberry’s vocal cords due to the swelling in his upper airway and the burns, which were particularly severe around his neck and face. These burns prevented Cruce from being able to tilt Roddenberry’s head to look down his airway. Roddenberry’s short mandible also added to Cruce’s difficulty in seeing his vocal cords. Although Cruce recommended a nasal intubation as Roddenberry would still be conscious and able to breathe independently, Dr. Griffin instructed her to conduct a rapid sequence oral tracheal intubation. To do so, Cruce administered a paralytic agent to Roddenberry that, while preventing aspiration, caused Roddenberry to be entirely dependent upon the intubation tube for his oxygen supply.

Unable to see Roddenberry’s vocal cords, Cruce performed a “blind” intubation at 10:07 a.m., according to the notes recorded by an emergency room nurse who used her own watch to gauge the time. Because Cruce was not entirely certain that she had properly placed the intu-bation tube into Roddenberry’s trachea, as opposed to his esophagus, she informed Dr. Griffin of her uncertainty. At this time, a respiratory technician informed the medical team working on Roddenberry that a carbon dioxide detector was not detecting the emission of carbon dioxide, which would be present if Roddenberry’s lungs were receiving oxygen. Therefore, Dr. Griffin, Cruce, another physician in the emergency room, and other members of the medical team took steps to alleviate their concerns about proper placement of the intubation tube. The medical team, listening to Roddenberry’s lungs, heard bilateral breathing sounds and saw his chest expand and contract. Moreover, Dr. Griffin ordered an x-ray and listened to Roddenberry’s stomach for sounds of oxygen possibly being pumped into his stomach rather than into his lungs. Dr. Griffin and another physician examined the x-ray and determined that it established that the in-tubation tube was in the correct place, the trachea. Furthermore, although Roddenberry’s oxygen saturation levels did not increase following the intubation, which would be expected if the intubation tube was properly placed, Roddenberry’s levels did not decrease either, which would be expected if the intubation tube was improperly placed. As a result of the foregoing, both Dr. Griffin and Cruce were convinced that Cruce had properly placed the intubation tube into Roddenberry’s trachea.

Seven minutes after Cruce inserted the intubation tube, Roddenberry’s urine changed from a clear color to a reddish color. Red urine in a burn victim can indicate either a fatal condition known as hemolysis, which is caused by the breakdown of the burn victim’s red blood cells, or a non-fatal condition known as rhabdo-myolysis, which is caused by the breakdown of the burn victim’s muscle pigment. At trial, no expert for either side testified as to which of the two conditions, if not both, caused Roddenberry’s urine to turn red in color. Yet, all experts agreed that if, in fact, Roddenberry had been suffering from hemolysis, such a condition would be fatal. Although the lab report indicated that Roddenberry’s blood sample, taken subsequent to the discovery of the red urine, was badly hemolyzed, experts for both appellants and appellees testified that this finding could have indicated some other interference with the interpretation of the results, such as elevated potassium levels.

Nineteen minutes after Cruce inserted the endotracheal tube, morphine was administered to Roddenberry'. Twenty-three minutes after Cruce inserted the endotra-cheal tube, Roddenberry had no pulse, which led the medical team to begin cardiopulmonary resuscitation. As their efforts were unsuccessful, Roddenberry was declared dead shortly thereafter.

During the autopsy, which the medical examiner performed the following day, the examiner found the endotracheal tube in Roddenberry’s esophagus. Although the examiner found some evidence of damage to Roddenberry’s lungs, she did not have lung samples examined to ascertain the extent of the inhalation injury. The examiner also did not determine whether the red urine had been caused by hemolysis or rhabdomyolysis. According to the examiner, Roddenberry’s cause of death was morphine poisoning which caused him to go “over the edge” when he was already hy-poxic from the esophageal intubation.

At trial, Dr. DeRespino, appellees’ expert on emergency medicine, testified that he believed Roddenberry sustained a serious but survivable burn. However, Dr. DeRespino was not qualified as an expert for determining Roddenberry’s chances of long-term survival. According to Dr. DeRespino, Roddenberry died because of the improper intubation. In order to explain the fact that it would have taken only ten or eleven minutes for Roddenberry to suffer cardiac arrest after having the intu-bation tube placed into his esophagus, while he was found with no pulse twenty-three minutes after intubation, Dr. DeRes-pino opined that no member of the medical team realized that Roddenberry had arrested until 10:30 a.m. Dr. DeRespino also opined that one cannot put too much faith in the time reports that were generated as the machines may have been programmed differently and as different watches may have been used. Regarding whether or not Dr. Griffin acted with reckless disregard, Dr. DeRespino testified that although he did not think that listening for breath sounds and making an honest error in judgment demonstrated reckless disregard, Dr. Griffin’s failure to check for Roddenberry’s vocal cords himself and his failure to notice that Roddenberry’s oxygen saturation levels were not rising did evidence reckless disregard.

Appellees’ burn expert, Dr. Briggs, testified that Roddenberry had an eighty-five percent burn that in most major institutions in this country carries a ninety percent survivability rate. On cross-examination, Dr. Briggs admitted that this survival prediction was based upon people who actually reached major burn institutions. Dr. Briggs also admitted that, in her deposition, she had stated that she had never seen anyone survive hemolysis. Although Dr. Briggs testified during trial that Roddenberry did not have hemolysis, she then stated that the measure of hematocrit in his blood did not “rule out any hemolysis ... but it certainly rules out any significant hemolysis.” However, notwithstanding her prior testimony that she had never seen anyone survive hemolysis, Dr. Briggs failed to differentiate between what she termed “significant hemolysis” and all other, if any, severity levels of the condition. On re-direct examination, Dr. Briggs testified that Roddenberry had a survivable injury.

Following the close of appellees’ evidence, JH moved for a directed verdict as to all issues, arguing that appellees’ evidence was such that reasonable men would not differ, which the trial court denied. Bay argued that section 768.13, Florida Statutes (1997), and its reckless disregard standard should be applied to Cruce, which the trial court also denied. JH and Bay then presented their expert witnesses.

Dr. Tompkins, JH’s burn expert, testified that, in his opinion, Roddenberry suffered from a very severe inhalation injury. According to Dr. Tompkins, Roddenberry’s bi-lateral breathing after intubation was inconsistent with an esophageal intu-bation. Dr. Tompkins opined that Cruce had properly intubated Roddenberry in the trachea, as there would be no other way to explain Roddenberry’s relatively stable vital signs that lasted twenty-three minutes until he suffered cardiac arrest. Dr. Tompkins also opined that the port red wine color of the urine, which is how some of the experts described such, indicated very severe damage. Thus, according to Dr. Tompkins, Roddenberry had a ten percent or lower chance of survival. Appellants’ other expert witnesses similarly testified that Roddenberry was properly intubated and died from his burns. Although the autopsy revealed that the tube was in Roddenberry’s esophagus, appellants introduced expert testimony regarding the possibility that the intubation tube had loosened due to the severe burns, which, according to the expert testimony, was demonstrated in the autopsy photographs that showed that the tube had moved at least three centimeters since its original placement.

Thereafter, appellants rested and JH again moved for a directed verdict, which the trial court denied. The trial court determined that the proper standard of care for JH was reckless disregard, whereas the proper standard of care for Bay was negligence. The jury found that JH acted with reckless disregard as to Roddenberry and that Bay acted negligently. It assigned sixty percent of the fault to JH and forty percent of the fault to Bay. In the hearing on appellants’ post-trial motions, which included a motion for judgment notwithstanding the verdict as to both reckless disregard and causation, the trial court, while noting that it thought the verdict should be reversed for many reasons ánd stating that, “I didn’t see the evidence,” denied the motions for judgment notwithstanding the verdict and for a new trial. These appeals followed.

II. Jackson Hospital

JH argues on appeal that the trial court erred in denying its motions for a directed verdict, motion for new trial, and motion for judgment notwithstanding the verdict because the evidence introduced by appellees at trial was insufficient to prove both reckless disregard, as set forth in section 768.13(2)(b)l., and causation. When presented with a motion for directed verdict, a court must view all the evidence in a light most favorable to the non-movant, and in the face of evidence which is at odds or contradictory, all conflicts must be resolved in favor of the party against whom the motion has been made. Ticor Title Guarantee Co. v. Harbin, 674 So.2d 781, 782 (Fla. 1st DCA 1996). It is only where there is no evidence upon which a jury could properly rely, in finding for the non-moving party, that a directed verdict should be granted. Id. The same standard applies when a court addresses a motion for judgment notwithstanding the verdict. Easton-Babcock & Assocs., Inc. v. Fernandez, 706 So.2d 916, 919 (Fla. 3d DCA 1998). A judgment must be sustained if it is supported by competent, substantial evidence. Jones v. Rives, 680 So.2d 450, 451 (Fla. 1st DCA 1996). This is the test used by the trial court as well as the standard of review on appeal. Cecile Resort, Ltd. v. Hokanson, 729 So.2d 446, 447 (Fla. 5th DCA 1999).

A. Reckless Disregard

In 1988, the Legislature amended the Good Samaritan Act to say, in pertinent part:

Any hospital licensed under chapter 395, any employee of such hospital working in a clinical area within the facility and providing patient care, and any person licensed to practice medicine who in good faith renders medical care or treatment necessitated by a sudden, unexpected situation or occurrence resulting in a serious medical condition demanding immediate medical attention, for which the patient enters the hospital through its emergency room or trauma center, shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.

§ 768.13(2)(b)l., Fla. Stat. The term “reckless disregard” as it is used in section 768.13(2)(b)l., is defined as:

conduct which a health care provider knew or should have known, at the time such services were rendered, would be likely to result in injury so as to affect the life or health of another, taking into account the following to the extent they may be present;
a. The extent or serious nature of the circumstances prevailing.
b. The lack of time or ability to obtain appropriate consultation.
c. The lack of a prior patient-physician relationship.
d. The inability to obtain an appropriate medical history of the patient.
e. The time constraints imposed by coexisting emergencies.

§ 768.13(b)3., Fla. Stat. (1997).

The only individual whose conduct was in question regarding section 768.13(2)(b)1., was that of Dr. Griffin, for whom JH was found to be vicariously liable. Dr. DeRespino was the only expert witness who testified as to Dr. Griffin’s standard of care. Dr. DeRespino testified that Dr. Griffin’s conduct evidenced reckless disregard when he failed to check for Roddenberry’s vocal cords and when he failed to notice that Roddenberry’s oxygen saturation levels had not increased following the intubation. An expert opinion may support a jury verdict, as long as it is grounded in fact, even though it involves a conclusion as to causation. Cromarty v. Ford Motor Co., 341 So.2d 507, 509 (Fla.1976). However, “[a]n expert cannot simply assume the facts which form the basis of his opinion.” Brito v. County of Palm Beach, 753 So.2d 109, 114 (Fla. 4th DCA 1998).

Here, Dr. DeRespino did not testify that had Dr. Griffin, himself, looked for Roddenberry’s vocal cords, he would have seen anything different than what Cruce had seen. Cruce testified that she could not see the vocal cords because of the burns, swelling, and Roddenberry’s short mandible. Yet, according to Dr. DeRespi-no, Dr. Griffin knew or should have known that failing to look for the vocal cords, in and of itself, would cause harm to Roddenberry. When Cruce informed Dr. Griffin of her uncertainties as to proper placement, Dr. Griffin ordered an x-ray, noticed chest expansion, and, along with Cruce and another physician, checked for breathing sounds. These actions evidenced Dr. Griffin’s concern and attempt to ensure proper placement of the intubation tube. Thus, Dr. DeRespino’s opinion could not support the jury verdict as it was not grounded in facts but was instead based upon Dr. DeR-espino’s assumption of the facts.

Furthermore, although Dr. DeRes-pino testified that Dr. Griffin acted with reckless disregard when he failed to notice that Roddenberry’s oxygen saturation level had not increased following intubation, the evidence in the record demonstrates that Roddenberry’s oxygen saturation level remained consistent both before and after intubation. Although it would be expected that such levels would increase following proper intubation, it would also be expected that such levels would decrease if Cruce had improperly intubated. Therefore, because this opinion was contrary to the record evidence, it, too, could not support the jury verdict.

In addition, the record is devoid of any evidence to suggest that Dr. Griffin ignored the test results and monitor readings except for Dr. DeRespino’s own unsupported hypothesis that Roddenberry’s heart stopped beating fourteen minutes prior to any member of the medical team noticing. In developing his opinions, Dr. DeRespino ignored the certainties, including the impossibility of surviving for twenty-three minutes without oxygen and the lack of any indication that Roddenberry’s oxygen saturation levels had dropped after intubation. Regardless of the faith or lack thereof that one may place in the time reports, the fact remains that one nurse using only one watch recorded the times between occurrences in the emergency room. Therefore, notwithstanding the possibility that different machines or monitors may have been set differently, Dr. DeRespino could not reasonably explain how twenty-three minutes passed between intubation and cardiac arrest. His opinion that fourteen minutes elapsed without any member of the medical team noticing that Roddenberry had arrested is based upon pure speculation.

Accordingly, we hold that the trial court erred in denying JH’s motions for directed verdict and motion notwithstanding the verdict as the jury’s finding that Dr. Griffin acted with reckless disregard is clearly not supported by competent, substantial evidence. The trial judge, himself, stated that, “I didn’t see the evidence.” We agree and, therefore, reverse and remand for entry of judgment in favor of JH. Our reversal renders JH’s argument that the trial court erred in not granting its motion for new trial moot. See Moschini v. Inter-Gold Italia, Inc., 694 So.2d 774, 775 (Fla. 2d DCA1997).

B. Causation

While we reverse and remand for entry of judgment in favor of JH based upon the insufficiency of the evidence to prove reckless disregard, we also agree with JH that appellees presented insufficient evidence at trial to prove causation. To prevail in a medical malpractice case, a plaintiff must establish the standard of care owed by the defendant, the defendant’s breach of the standard of care, and that such breach proximately caused the alleged damages. Gooding v. Univ. Hosp. Bldg., Inc., 445 So.2d 1015, 1018 (Fla.1984). “In negligence actions, Florida courts follow the more likely than not standard of causation and require proof that the negligence probably caused the plaintiffs injury.” Id. In Gooding, the supreme court quoted Prosser on this standard of proof:

[The plaintiff] must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a substantial factor in bringing about the result. A mere possibility of such causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant.

Id. (quoting William Prosser, Law of Torts § 41 (4th ed.1971) (footnotes omitted)). The “more likely than not” standard is satisfied in a wrongful death case if a plaintiff presents evidence that establishes that the decedent had a fifty-one percent or better chance that death would not have occurred but for the actions or lack thereof of the medical care provider. Rivet v. Perez, 655 So.2d 1169, 1171 (Fla. 3d DCA 1995).

In the instant case, even if competent, substantial evidence existed in the record to support a finding that Cruce improperly intubated and that Dr. Griffin failed to remedy such, appellees failed to present competent, substantial evidence that it was more likely than not that Roddenberry would have survived but for the improper intubation. Although Dr. Briggs testified that Roddenberry had a ninety percent chance of survival at any major burn institution in this country, this testimony introduced an additional variable that was not present in Roddenberry’s situation as Roddenberry had not yet been transported to such an institution. Dr. Briggs admitted that she based this statistic upon those individuals who were transported to major burn centers. Dr. Briggs also admitted that Roddenberry, having died before reaching such a center, would not be included within the statistic. Thus, Dr. Briggs’ testimony presupposed Roddenberry’s survivability, and was, thus, based upon pure speculation and conjecture.

Furthermore, despite Dr. Briggs’ testimony that Roddenberry suffered from a survivable injury, neither Dr. Briggs, nor any other expert witness, could definitively state whether Roddenberry suffered from fatal hemolysis or from non-fatal rhabdo-myolysis. While Dr. Briggs testified that Roddenberry was not suffering from “significant hemolysis,” she had previously stated that she had never witnessed anyone survive the condition. At best, the probabilities in this case were evenly balanced. Because the record is devoid of any evidence that Roddenberry was actually suffering from rhabdomyolysis, the non-fatal condition, we conclude that ap-pellees could not have established that the alleged esophageal intubation more likely than not caused Roddenberry’s death. Therefore, we also hold that the trial court erred in denying JH’s motions for directed verdict and motion for judgment notwithstanding the verdict as to the causation issue.

III. Bay Anesthesia

Bay argues on appeal that the reckless disregard standard of liability set forth in section 768.13(2)(b)l. is applicable to Cruce’s care of Roddenberry. Legislative intent is the polestar by which a court is guided in interpreting statutes. State v. J.M., 824 So.2d 105, 109 (Fla.2002). In construing a statute, the plain meaning of the statutory language is the first consideration. Jones v. State, 813 So.2d 22, 24 (Fla.2002); see also Blinn v. Fla. Dep’t of Transp., 781 So.2d 1103, 1105 (Fla. 1st DCA 2000). This rule of construction requires a straightforward consideration of each relevant sentence of the statute. Blinn, 781 So.2d at 1105. If the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no need to apply the rules of statutory construction as the statute should be given its plain and obvious meaning. M.W. v. Davis, 756 So.2d 90, 101 (Fla.2000); Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992). We review the trial court’s interpretation of a statute under the de novo standard. See Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000), review dismissed, 831 So.2d 161 (Fla.2002).

Section 768.13(2)(b)l. establishes the reckless disregard standard for emergency room treatment rendered in good faith by “[a]ny hospital licensed under chapter 395, any employee of such hospital working in a clinical area within the facility and providing patient care, and any person licensed to practice medicine ...” It is a well-settled principle that when “a statute specifically enumerates those persons to be covered, ordinarily the statute will be construed as excluding from its operation all those other persons not expressly mentioned.” Zopf v. Singletary, 686 So.2d 680, 681-82 (Fla. 1st DCA 1996). For instance, in Finkelstein v. North Broward Hospital District, 484 So.2d 1241, 1243 (Fla.1986), the supreme court construed the now-repealed section 768.56, Florida Statutes, which authorized attorney’s fees to prevailing parties in medical malpractice actions involving “any medical or osteopathic physician, podiatrist, hospital or health maintenance organization.” An unsuccessful nurse averred on appeal that the trial court lacked authority to assess attorney’s fees against her because she was not one of the health care professionals enumerated in section 768.56. Id. The supreme court agreed and held that because the nurse was not a member of any of the classes of persons enumerated in section 768.56, reversal of the trial court’s order as to the nurse was warranted. Id.

Here, the contract between JH and Bay clearly provides for an independent contractor relationship between the two entities. Bay, conceding that it was Cruce’s employer, argues that Cruce essentially became an agent of JH by acting under the direction of Dr. Griffin and, therefore, was entitled to the protection of section 786.13(2)(b)l. However, the Legislature did not expressly include independent contractors or agents who are not licensed to practice medicine within the protection of section 768.13(2)(b)l. In contrast, in section 768.28(9)(a), which addresses the State’s limited waiver of sovereign immunity for torts, the Legislature expressly included within the statute’s immunity protection officers, employees, and agents. The Legislature’s inclusion of the term “agent” in section 768.28(9)(a), a statute similar to section 768.13(2)(b)l., in that both serve to immunize those enumerated classes from civil liability, and its omission of the word “agent” from section 768.13(2)(b)1. demonstrate that if the Legislature had intended to include agents of hospitals or their independent contractors who are not licensed to practice medicine but who render care within their emergency rooms within the protection of section 768.13(2)(b)l., it would have done so. Cf. Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995) (holding that when the Legislature has used a term in one section of a statute but has omitted it in another section of the same statute, courts will not imply the term where it has been so excluded). Therefore, because Cruce does not come within any of the enumerated classes covered by section 768.13(2)(b)l., she is excluded from the statute’s protection.

Furthermore, although the stated legislative intent behind section 768.13(2)(b)l. was to “promote the availability of emergency medical care by providing immunity from civil liability to hospitals and trauma centers and the medical emergency care providers rendering care therein to emergency care patients, ...,” see Ch. 88-1 § 45(2), Laws of Fla. (emphasis added), the Legislature did not employ this “medical emergency care providers” language within the actual statute. While Cruce would undoubtedly come within the purview of the broad term “medical emergency care providers,” the Legislature chose not to incorporate this more encompassing phrase within section 768.13(2)(b)l. Therefore, because legislative intent is determined primarily from the language of the statute, see State v. Rife, 789 So.2d 288, 292 (Fla.2001), and because Cruce, who was employed by Bay and who worked only as an independent contractor at JH, is not a member of any of the classes of persons enumerated in section 768.13(2)(b)l., Cruce was not entitled to the protection of the reckless disregard standard of care. See also Blinn, 781 So.2d at 1107 (holding that the Florida Supreme Court has ruled unequivocally that where the language of a statute is clear, the language must be given its effect, rather than the purpose or the intent indicated by legislative history).

Bay further argues that the application of two different standards of care within the emergency room is illogical and contrary to legislative intent. Yet, “[t]he fact that [section 768.13(2)(b)l.] fails to protect individuals seemingly worthy of protection is not for this [C]ourt to remedy, but rather the [Legislature.” Knox v. Adventist Health System/Sunbelt, Inc., 817 So.2d 961, 962 (Fla. 5th DCA 2002); see also Overstreet v. State, 629 So.2d 125, 126 (Fla.1993) (holding that if the Legislature did not intend the results mandated by a statute’s plain language, the appropriate remedy is for the Legislature to amend the statute).

Because section 768.13(2)(b)1. clearly and unambiguously immunizes only hospitals licensed under chapter 395, employees of such hospitals working in a clinical area within the facility, and physicians, we are bound to follow the plain and obvious meaning of the statute. See M.W., 756 So.2d at 101; Aetna Cas. & Surety Co., 609 So.2d at 1317. Section 768.13(2)(b)1. conveys a clear and definite meaning, a meaning that precludes the application of this statute to Cruce. To interpret the statute otherwise to include Cruce merely because Dr. Griffin directed Cruce to perform an oral intubation would be to rewrite the statute, which is an endeavor not within the purview of this Court. See Knox, 817 So.2d at 963; see also State v. Jett, 626 So.2d 691, 693 (Fla.1993) (holding that it is a settled rule of statutory construction that unambiguous language is not subject to judicial construction, however wise it may seem to alter the plain language). As such, we affirm the trial court as to this issue. In affirming, we conclude that section 768.13(2)(b)1. does not violate the Equal Protection Clause of the Florida Constitution as it bears a reasonable relationship with a permissible legislative objective of providing civil immunity to hospitals, their employees, and physicians. See Abdala v. World Omni Leasing, Inc., 583 So.2d 330, 333 (Fla.1991) (holding that the test for whether a statute violates equal protection rights is whether the statute bears a reasonable relationship to a legitimate legislative objective).

Although we conclude that Cruce is not entitled to the protection of section 768.13(2)(b)1. based upon its clear and unambiguous language, we believe that this issue presents a question of great public importance. We, therefore, certify the following question:

WHETHER MEDICAL EMERGENCY CARE ' PROVIDERS WHO ARE NOT EMPLOYED BY HOSPITALS LICENSED UNDER CHAPTER 395 AND WHO ARE NOT LICENSED TO PRACTICE MEDICINE BUT WHO RENDER CARE WITHIN THE EMERGENCY ROOMS OR TRAUMA CENTERS OF SUCH HOSPITALS ENJOY CIVIL IMMUNITY PURSUANT TO SECTION 768.13(2)(b)l„ FLORIDA STATUTES, UNLESS SUCH CARE EVINCES A RECKLESS DISREGARD FOR THE LIFE OR HEALTH OF ANOTHER.

IV. Cross-Appeal

Appellees argue on cross-appeal that in the event that we reverse as to either JH or Bay and affirm liability as to the other party, the party for whom the liability is affirmed should be held responsible for 100 percent of appellees’ damages with the judgment being amended accordingly. Because we reverse the judgment as to JH and affirm liability as to Bay, we address this cross-appeal. Here, the jury found JH sixty percent at fault and Bay forty percent at fault. However, if the trial court had properly directed the verdict as to JH, the issue of apportionment between appellants would not have reached the jury. Moreover, no apportionment of fault would have been necessary as Bay would not have been permitted to list JH as a Fabre defendant on the verdict form. See Fabre v. Marin, 623 So.2d 1182, 1185 (Fla.1993) (stating that the only means of determining a party’s percentage of fault is to compare that party’s percentage to all of the other entities who contributed to the accident, regardless of whether they have been or could have been joined as defendants), receded from on other grounds in Wells v. Tallahassee Mem’l Reg’l Med. Ctr., 659 So.2d 249 (Fla.1996).

In order to include a nonparty on the verdict form pursuant to Fabre, a defendant has the burden of presenting at trial that the nonparty’s fault contributed to the accident or injury. See Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262, 1264 (Fla.1996). For instance, in Southern Bell Telephone & Telegraph Co. v. Florida Department of Transportation, the appellant, Southern Bell, argued that the trial court erred in granting the summary judgment ordered in favor of the Department of Transportation (“DOT”), a co-defendant. 668 So.2d 1039, 1040 (Fla. 3d DCA1996), review dismissed, 671 So.2d 788 (Fla.1996). The Third District Court of Appeal rejected the appellant’s Fabre argument that absent the appeal the appellant would be protected by the fact that DOT’S name might still be placed on the verdict form. Id. at 1041. The court found that absent its reversal of the summary judgment, the appellant would not have been entitled to have DOT placed on the verdict form because the trial court determined as a matter of law that DOT was not at fault. Id.

Thus, here, if the trial court had properly directed the verdict as to JH, thereby determining that no fault existed on the part of JH, Bay would not have been entitled to have JH’s name placed on the verdict form. Because we have decided that the trial court erred in failing to direct the verdict as to JH, as a matter of law, JH did not act with reckless disregard in treating Roddenberry, nor did JH cause Roddenberry’s death. As such, because the jury found Bay negligent and because the trial court erred in failing to direct the verdict as to JH, Bay is liable for 100 percent of the jury’s damage award. Accordingly, we grant appellees’ cross-appeal as to Bay and reverse the judgment against Bay for forty percent of appellees’ damages and remand with instructions that the trial court enter judgment against Bay for 100 percent of the jury’s damages award.

AFFIRMED in part; REVERSED in part; REMANDED with instructions; QUESTION CERTIFIED.

MINER, J., concurs in part and dissents in part with written opinion; WOLF, J., concurs in part and dissents in part with written opinion.

MINER, J.,

concurring in part and dissenting in part.

I would reverse as to all issues. I concur completely in Judge Lewis’ opinion as to Jackson Hospital (JH), as well as in certifying the question and consolidating the cases for purposes of this opinion. However, I would find that, under the facts of this case, section 768.13(2)(b)l., Florida Statutes, applied to Nurse Cruce and, therefore, to Bay Anesthesia (Bay). Because I would reverse in both cases, I would not reach the issue raised in the cross-appeals. However, with the majority decision to reverse as to JH and affirm as to Bay, I do agree that the final judgment against Bay must be amended from 40% to 100% because of our finding as to causation and survivability.

While I agree with the majority that JH and Bay entered into an independent contractor relationship and that Nurse Cruce, generally speaking, was not an employee of JH, I believe that she was an employee of JH, in the sense that her activities were directed toward a particular activity or person and as that term was used in section 768.13, during the emergency treatment of William Roddenberry. Nurse Cruce was not working in an operating room where her specialized duties and those of a surgeon were not “inextricably bound.” See, e.g., Fortson v. McNamara, 508 So.2d 35 (Fla. 2d DCA 1987). Instead, she was summoned to the emergency room from another part of the hospital where she was then engaged in other matters to help with the treatment of Mr. Roddenberry. Additionally, she was acting under the direct supervision of Dr. Griffin, a JH employee, according to his specific directions. She was not free to choose the method of intubation, as her preferred choice was overruled by Dr. Griffin. Nurse Cruce became the servant, so to speak, of Dr. Griffin and, therefore, JH, when Dr. Griffin “directed the procedures to be utilized by the nurse anesthetist [and] had a genuine opportunity to alter the course of events.” Id. at 37. Moreover, JH did not inform Roddenberry or anyone else that Nurse Cruce was an independent contractor upon his arrival at the emergency room. See Cuker v. Hillsborough County Hospital Authority, 605 So.2d 998 (Fla. 2d DCA 1992).

Even if an “apparent agent” ordinarily is not considered an “employee,” the Legislature clearly intended to protect all “medical emergency care providers” rendering care within emergency rooms and trauma centers. Nurse Cruce is not like the paramedics in Knox v. Adventist Health System/Sunbelt, Inc., 817 So.2d 961, 962 (Fla. 5th DCA 2002), who were not addressed by the Legislature despite being “seemingly worthy of protection.” The paramedics were not “medical emergency care providers rendering care therein to emergency care patients.” Their conduct occurred outside of the emergency room. Nurse Cruce, on the other hand, was part of an emergency room team acting at the direction of Dr. Griffin within the emergency room.

The Legislature clearly intended to protect Nurse Cruce, and failing to construe the term “employee” broadly enough to include her leads to incongruous results, as this case makes so readily apparent. Below, the jury was asked to scrutinize the conduct of two people who worked on Roddenberry, Nurse Cruce and Dr. Griffin. Then, despite the fact that Nurse Cruce was acting according to Dr. Griffin’s orders and that he was “captain of the ship,” so to speak, overseeing all of the treatment, the jury was asked to determine whether Nurse Cruce acted negligently and whether Dr. Griffin acted with “reckless disregard.” This makes no sense to me. It seems irrational to maintain that the Legislature intended to apply two different standards to people working as part of one trauma team, at the same time, in the same location, and on the same patient. It is even more unsound, in my view, to suggest that sec. 768.13(2)(b)l. was intended to provide greater protection to the person in charge of the team than to one of the team members acting under the leader’s direct orders. I simply can find no rational basis for providing greater protection to Dr. Griffin than to one of the people acting at his direction simply because the name of the entity atop her paycheck was Bay Anesthesia instead of Jackson Hospital. Accordingly, I would reverse and remand for a new trial, during which Appel-lees would have to establish that Nurse Cruce acted with “reckless disregard” in order to prevail.

WOLF, J.,

concurring in part and dissenting in part.

I would affirm as to all issues. While I believe the issue of survivability is a close one, the evidence taken in the light most favorable to the plaintiff supports the verdict. The evidence as to reckless disregard is also sufficient to support the jury’s verdict. Also, I agree with the remand for entry of a judgment against Bay for 100 percent of the jury’s damages award in light of the majority’s determination that Jackson County Hospital’s conduct was not the legal cause of the death in this case.

Reckless disregard as defined in the statute means “conduct which a health care provider knew or should have known, at the time such services were rendered, would be likely to result in injury so as to affect the life or health of another .... ” § 768.13(2)(b)3., Fla. Stat.(1997).

The question of whether a health care provider acted with reckless disregard as defined by section 768.13(2)(b)3. and whether such recklessness was a legal cause of the patient’s death present jury questions which generally should not be resolved by directed verdict. See Garcia v. Randle-Eastern Ambulance Serv., Inc., 710 So.2d 74 (Fla. 3d DCA 1998). “A party moving for a directed verdict admits not only the facts stated in the evidence presented but [a party] also admits every conclusion favorable to the adverse party that a jury might reasonably infer from the evidence.” Id. at 75 (citations omitted).

All the health care providers, including Dr. Griffin, admitted that improper intubation would result in the patient’s death. All the witnesses admitted there was some indication that there might be a problem with the initial intubation. The respiratory therapist testified that the C02 detector showed no color change which indicated improper intubation. She also testified that she told Dr. Griffin that she wasn’t sure if the tube was in place! While it is undisputed that Dr. Griffin took several steps to determine whether the tube was inserted correctly, there was also evidence there were other steps which could be taken to verify the tube’s placement. Dr. Griffin failed to take these steps. Dr. DeRespino, the plaintiffs expert, testified that failure to take these steps constituted reckless disregard. In Garcia, the court indicated that failure to take action in light of a problem that would likely result in death could constitute reckless disregard. Id. at 76. Such is the case here.

As to the survivability or causation issue, the majority’s concern seems to be threefold: 1) inconsistencies, especially as to timing, which call into question whether death was caused by improper intubation; 2) the competence of Dr. Briggs’ testimony (plaintiffs expert as to causation) in light of evidence of hemolysis; and 3) the competence of Dr. Briggs’ testimony in light of the fact that the victim was not being treated in a major burn unit. While these issues make me question whether I would have returned a verdict for the plaintiff, I am not a juror. Reasonable inferences regarding the testimony of the medical examiner and Dr. Briggs support the verdict.

Marie Hermann, the Chief Medical Examiner for the Fourteenth Circuit, testified that the cause of death was low oxygen from esophageal intubation and the morphine tipped the deceased over the edge. Dr. Hermann testified that the patient, Mr. Roddenberry, did not die directly from the burn injuries. She further testified as to factual findings which were consistent with the opinion, including the doctor’s opinion that the inhalation injury from the accident was mild.

Plaintiffs burn expert, Susan Miller Briggs, M.D., testified that Roddenberry had a “very survivable burn.” She explained that had Mr. Roddenberry made it to a burn unit and survived to leave the burn unit, his life expectancy would have been very good:

I think he would have had, based on the fact that he had a mild inhalation injury, did not appear to have a severe inhalation injury, was an 18 year old and had 85 percent burns of which at the time they said 20 percent were full thickness, but I think they would have been deeper, he would have had a better than 90 percent survival chance in any major burn unit in this country.
I think his life expectancy would have been the same as any other person who is his age. I think certainly burns leave you with many physical handicaps, but they do not change your life expectancy, just like any other handicapped person.

(Emphasis added.)

The majority states that Dr. Briggs’ testimony must be disregarded because the evidence of a port wine color of the urine demonstrates that Mr. Roddenberry had hemolysis, a condition that indicates a burn patient faces imminent death. Dr. Briggs had reviewed the records, however, and explained in response to questioning, “Mr. Roddenberry did not have hemolysis. His hematocrit was 55. He had red urine.” When asked whether the hemato-crit that was measured in the emergency department at Jackson Hospital ruled out the hemolysis, Dr. Briggs responded, “It doesn’t rule out any hemolysis because we don’t know if that was a hemoglobin or myoglobin, but it certainly rules out any significant hemolysis.”

The majority states that Dr. Briggs’ testimony must be rejected because she did not explain the difference between significant and non-significant hemolysis. It obviously would have been clearer if the next question had been asked: whether a person could survive with the non-significant level of hemolysis. Even without this question being asked, the jury clearly could reasonably infer that Dr. Briggs was aware of the hematocrit level and still felt that there was a greater than 50 percent chance of survival with proper treatment.

The other reason the majority gives for determining that Dr. Briggs’ testimony must be rejected as a matter of law is that her opinion as to survivability was directed to only those patients who were being treated in major burn units. The majority’s reasoning on the issue is incorrect for two reasons: First, Dr. Griffin testified it was his intent to stabilize the patient and transfer him to the burn unit at University of South Alabama in Mobile; second, on redirect Dr. Briggs clarified that her opinion as to survivability was based on review of the records of this particular case. I, therefore, believe the standards of causation adopted by University Hospital Bldg., Inc. v. Gooding, 419 So.2d 1111 (Fla. 1st DCA 1982), have been met.

As to the issue on cross-appeal, I agree with Judge Lewis that, based upon the results reached within his opinion, the proper remedy is to remand for a judgment against Bay holding them responsible for 100 percent of the damages.

Because of the majority’s determination that causation was not proven, Jackson Hospital’s negligence cannot be a contributing cause of the death of Mr. Roddenberry. Therefore, pursuant to Nash v. Wells Fargo Guard Services, Inc., 678 So.2d 1262 (Fla.1996), Jackson Hospital cannot be placed on the verdict form or determined to be responsible for the death.

      . We note that Bay, unlike JH, did not argue on appeal that the evidence presented by ap-pellees at trial was legally insufficient to prove its negligence.

      . Any testimony concerning time discrepancies may be argued to be inconsistent with the medical examiner's opinion but does not serve to negate it.

      . This issue was not raised by Bay as part of their appeal.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Gilda OLIVEROS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D00-2451.
    District Court of Appeal of Florida, Third District.
    Jan. 8, 2003.
    Rehearing Denied Jan. 31, 2003.

      Bierman, Shohat, Loewy & Klein, and Edward R. Shohat, and Michael A. Pizzi, Jr., Miami, for appellant.
    Charlie Crist, Attorney General, and Douglas J. Glaid, Assistant Attorney General; and Katherine Rundle, Miami-Dade County State Attorney, and Angelica D. Zayas, Assistant State Attorney, for appel-lee.
    Before SCHWARTZ, C.J., and RAMIREZ, J., and NESBITT, Senior Judge.
   RAMIREZ, J.

Gilda Oliveros appeals her convictions for two counts of solicitation of first degree murder and three counts of voter fraud. We affirm the voter fraud convictions, but reverse the convictions for solicitation of first degree murder because the state injected irrelevant evidence of a million dollar liability policy.

In the Fall of 1999, Oliveros was charged with having three years earlier solicited Robert Godwin to murder her then husband, Angel Ramos. The alleged plot was to murder Ramos at the flea market where he worked security or to murder him during a fake home invasion robbery. Nothing developed beyond talk. Oliveros was also charged with soliciting Rafael Reyes to murder Ramos several months after her proposition to Godwin. The new proposal allegedly involved kid-naping Ramos, taking him to a remote area of Hialeah Gardens, killing him and setting the car on fire. Again, nothing was done to implement this latter plan.

Oliveros had purchased a $45,000 life insurance policy on her husband with herself and her stepson as beneficiaries. For the murder, Godwin and Reyes would purportedly receive payment from Oliveros’ half of this policy. By April 1997, Oliveros had cancelled the policy and divorced Ramos.

At trial, the defense argued that no one would solicit murder merely to share less than $23,000 with two other people. As further evidence of motive, the State presented evidence of a million dollar liability policy held by the flea market where Ramos worked, as well as circumstantial evidence that Oliveros may have been aware of the existence of that policy. We find the introduction of this evidence was harmful error.

Much of the argument at the trial level centered on whether Ramos was an employee, which would exclude him from coverage, or an independent contractor. Even if we assume he was an independent contractor, the flea market’s policy could not possibly have been a motive for Olive-ros to kill her husband because, for Olive-ros to collect, she would have had to sue the flea market for the wrongful death of her husband, in effect alleging that the security provided by Ramos was inadequate to protect himself. The argument that Oliveros may have thought that she could collect all that money is unpersuasive because none of the State witnesses could provide direct testimony that she even knew about the policy. The probative value of this evidence was at best minimal, while its prejudicial impact was considerable. The policy was thus legally irrelevant. See Rule 90.403, Florida Rules of Evidence (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence”).

The burden is on the State to prove beyond a reasonable doubt that the error did not contribute to the verdict. State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). The harmless error test “requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have relied, and in addition an even closer examination of the impermissible evidence which might have possibly influenced the jury verdict.” Id. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is harmful. Id. at 1139. “Overwhelming evidence of guilt does not negate the fact that an error that constituted a substantial part of the prosecution’s case may have ... contributed to the actual verdict reached.... ” State v. Lee, 531 So.2d 133, 137 (Fla.1988). See also Ousley v. State, 763 So.2d 1256 (Fla. 3d DCA2000).

The prosecutor mentioned the million dollar policy in both his opening and closing arguments, and, late in the State’s case, introduced the testimony of two witnesses in order to refute the defense argument that there was no monetary motive for Oliveros to kill her husband, that no one would kill for a share of the $45,000 policy. The million dollar policy was therefore a substantial part of the prosecution’s case. We are thus not satisfied beyond a reasonable doubt that this evidence did not contribute to the verdict and accordingly reverse Oliveros’ convictions for soliciting the murder of her former husband.

We find no merit in Oliveros’ other arguments and affirm the convictions for voter fraud.

Affirmed in part, reversed in part.


author: DAVIS, Judge.

text:
    Demeatrice CUBBY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4210.
    District Court of Appeal of Florida, Second District.
    Jan. 15, 2003.
    Rehearing Denied Jan. 31, 2003.
   DAVIS, Judge.

Demeatrice Cubby challenges the order of the trial court denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Cubby argues that his sentence as a prison releasee reoffender is illegal based on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002). Taylor held that chapter 99-188, Laws of Florida, was unconstitutional since it was enacted in violation of the single subject rule. The effective date of the prison releasee reoffender statute is May 30,1997. Jefferson v. State, 111 So.2d 1082 (Fla. 2d DCA 2001). Chapter 99-188 broadened the definition of a prison releasee reoffender to include a defendant who commits a listed offense while serving a prison sentence or is on escape status. See ch. 99-188, § 2. Since Cubby has not alleged that he was affected by the amendments to the prison releasee reof-fender statute nor has he alleged that he could not have been sentenced as a prison releasee reoffender pursuant to the statute in existence prior to the passage of chapter 99-188, his claim is facially insufficient. See Bush v. State, 823 So.2d 833 (Fla. 2d DCA 2002) (holding that the validly enacted statutes in effect prior to the enactment of chapter 99-188 control sentencing). Accordingly, we affirm the order of the trial court.

Affirmed.

FULMER and COVINGTON, JJ., concur.


author: COPE, J.

text:
    Raymond CHAPPELL and Joann Chappell, Appellants, v. CONSTRUCTION INDUSTRIES RECOVERY FUND and James E. Martin, Appellees.
    No. 3D02-396.
    District Court of Appeal of Florida, Third District.
    Jan. 15, 2003.
    McDonald & McDonald and David McDonald, Miami, for appellants.
    Elise M. Matthes, for appellees.
    Before COPE, GERSTEN and FLETCHER, JJ.
   COPE, J.

Raymond and Joann Chappell (“the homeowners”) appeal an order denying reimbursement under the Construction Industries Recovery Fund. We conclude that the homeowners are entitled to reimbursement under the facts of this case, and reverse the order now under review.

The 1993 legislature created the Construction Industries Recovery Fund. Ch. 93-166, § 21, Laws of Fla. (codified as §§ 489.140-.142, Fla. Stat. (1993)). It is intended to provide reimbursement to individuals who, among other things, have recovered a judgment based on a construction contract, but have been unable to collect the judgment despite diligent efforts to do so. See § 489.141, Fla. Stat. (2002). The money for the Fund is obtained by a surcharge levied on building permits. § 489.140(2), Fla. Stat. (2002).

The question before us is whether the homeowners’ contract is covered by the Fund. The Fund will provide reimbursement “where the contract was executed and the violation occurred on or after July 1,1993.Id. § 489.141(1)(a).

In this case, the homeowners’ home was damaged by Hurricane Andrew. In December 1992, the homeowners entered into a contract to repair it. Since this was prior to July 1,1993, the basic construction contract is clearly not covered by the statute.

However, on July 7, 1993, the homeowners and contractor entered into a change order for modifications to other parts of the home. The change order contemplated over $25,000 of additional work.

Because the work had not been satisfactorily completed, the homeowners withheld final payment. In 1994, the contractor sued the homeowners, and they counterclaimed for defective work. Ultimately the homeowners recovered a judgment against the contractor for $10,321.95.

The homeowners were unsuccessful in collecting the judgment from the contractor. They applied for reimbursement to the Fund.

After considering the recommendation of an administrative law judge, the Fund concluded that the homeowners were not entitled to reimbursement. The Fund reached that conclusion because in its view, the July 7, 1993 change order related back to the original contract date of December 1992. The Fund therefore concluded that the homeowners were not entitled to reimbursement. The homeowners have appealed.

We must respectfully disagree with the conclusion reached by the Fund. We do so because this is a remedial statute and it should be liberally construed to achieve its intended purpose. See Irven v. Department of Health and Rehabilitative Servs., 790 So.2d 403, 405 (Fla.2001); Hutchison v. Prudential Ins. Co., 645 So.2d 1047, 1049 (Fla. 3d DCA 1994). “As a remedial act, the statute should be construed liberally in favor of granting access to the remedy.” Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992) (citation omitted).

In this case the change order is a written document signed by the parties which adds approximately $25,000 in new construction, over and above the work encompassed by the original contract. We think the better view of the legislative intent is that the statute covers contractual undertakings entered into after July 1, 1993, whether done in the form of a free-standing contract or in the form of a change order. Consequently, we conclude that the work encompassed by the change order is eligible for reimbursement by the Fund.

The statute also requires that the violation occur subsequent to July 1, 1993. The administrative law judge in this case made a finding that the work had been performed prior to the execution of the change order. The homeowners argue that this finding by the administrative law judge is not supported by competent substantial evidence, for it fails to take into account the contractor’s concessions on cross-examination, as well as concessions or statements made in the earlier civil lawsuit. We understand the Department to agree with the homeowners’ position on this point. It follows that the homeowners are entitled to reimbursement from the Fund.

The homeowners argue that we should interpret the right to reimbursement under section 489.141 as including a right of the homeowners to be reimbursed for the attorney’s fees incurred in making the claim against the Fund, and on this appeal. We are unable to imply such a right based on the statutory language the legislature used. Where the legislature wishes to create an entitlement to an award of attorney’s fees, it customarily includes a specific attorney’s fee provision in the statutes. Conceivably this is an issue the legislature may wish to consider, but there is no provision for an award of attorney’s fees at this time.

Revised and remanded for entry of a reimbursement award in favor of the homeowners.

       The homeowners' alternative claim under subsection 57.105(1), Florida Statutes, is without merit.


author: PER CURIAM.

text:
    Thomas Eugene JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2278.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Appellant, pro se.
    Richard E. Doran, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Hughes v. State, 826 So.2d 1070 (Fla. 1st DCA 2002).

BOOTH, WEBSTER and LEWIS, JJ., Concur.


text:
    Eric BOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4088.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Nancy A. Daniels, Public Defender, and Joel D. Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Richard E. Doran, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appel-lee.
   PER CURIAM.

This direct appeal of the appellant’s judgment and sentence, imposed after the appellant was found guilty of violating the conditions of his supervision, was filed pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the revocation of probation but reverse the written order and remand for the trial court to enter a corrected revocation order that comports with its oral findings that the appellant violated only the condition of probation requiring him to report. See Gordon v. State, 827 So.2d 346, 2002 WL 31174261 (Fla. 2d DCA Oct.2, 2002).

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH INSTRUCTIONS.

BARFIELD, KAHN and PADOVANO, JJ., concur.


text:
    Rickey Don CRONE, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-221.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Appellant Rickey D. Crone, pro se, Lake Butler.
    Richard E. Doran, Attorney General, and Douglas T. Squire, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Rickey D. Crone, appeals the circuit court’s denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. The circuit court held an evidentiary hearing on two of Crone’s claims, but denied the remaining claims without explanation. The State acknowledges that partial reversal is required because the trial court neither stated its rationale nor attached specific parts of the record to support summary denial of the remaining claims, each alleging ineffective assistance of counsel. See Anderson v. State, 627 So.2d 1170 (Fla.1993). We have determined that only two of the summarily denied claims are facially sufficient. See Daniels v. State, 701 So.2d 1222, 1223 (Fla. 1st DCA 1997). The claims upon which further action is required are numbers (8) (failure to object to pictorial evidence) and (9) (failure to object to certain quotations from a dictionary). No error is shown as to those claims upon which the trial court conducted a hearing. Accordingly, we REVERSE and REMAND the denial of the claims we have identified, with directions that the court either hold an evidentiary hearing or attach to the order those specific portions of the record that conclusively establish Crone is not entitled to relief. See Daniels, 701 So.2d at 1223. We AFFIRM the remaining issues raised on appeal.

KAHN, BENTON, and LEWIS, JJ., concur.


text:
    Dennis SHIVER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-3693.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Dennis Shiver, pro se, petitioner.
    Richard E. Doran, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition seeking belated appeal is granted. Petitioner shall be allowed a belated appeal from the August 16, 2001, judgment and sentence rendered in Liberty County Circuit Court case number 2001-CF-024. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

PETITION GRANTED.

ERVIN, WOLF and LEWIS, JJ., concur.


text:
    Frank BRESSI, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3863.
    District Court of Appeal of Florida, First District.
    Jan. 17, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General; Kenneth D. Pratt, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the order denying Frank Bressi’s motion under Florida Rule of Criminal Procedure 3.800(a) for additional jail credit. The motion alleged that he was incarcerated in the Columbia County Jail from November 28, 1998, through October 4, 1999, a total of 310 days prior to sentencing, but that the trial court had awarded him credit for only 255 days. The trial court denied relief on the basis of a jail credit certificate showing that he was in the Columbia County Jail from November 28, 1998, through August 6, 1999, and from September 20, 1999, through September 22, for a total of 255 days. To the extent that Mr. Bressi contends that he served more than 255 days in the Columbia County Jail, the certificate refutes his claim.

ERVIN, DAVIS and BENTON, JJ., concur.

       A letter in the court file suggests that Mr. Bressi was in the custody of Alachua County for part of the time between November 28, 1998, and October 4, 1999, while still facing the Columbia County charges. We do not decide today whether he is entitled, pursuant to section 921.161(1), Florida Statutes (1999) (stating a court shall award credit to a defendant for "all of the time she or he spent in the county jail before sentence”), to receive jail credit for any time he may have spent incarcerated in Alachua County. See Brown v. State, 747 So.2d 992, 993 (Fla. 1st DCA 1999); Travis v. State, 724 So.2d 119, 120-21 (Fla. 1st DCA 1998); Pearson v. State, 538 So.2d 1349, 1349-50 (Fla. 1st DCA 1989). See generally State v. Mancino, 714 So.2d 429 (Fla.1998).


author: POLEN, C.J.

text:
    STATE of Florida, Appellant, v. Jennifer SCHREIBER, Appellee.
    No. 4D01-2892.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Charlie Crist, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Lawrence C. Roberts, Fort Lauderdale, for appellee.
   ON MOTION FOR REHEARING

POLEN, C.J.

We withdraw our previously filed opinion dated November 20, 2002 and replace it with the following.

The county court has certified the following question of great public importance to this court pursuant to Florida Rule of Appellate Procedure 9.160(b):

DOES THE STANDARD DUI JURY INSTRUCTION, WHICH INCLUDES BOTH THE IMPAIRMENT THEORY AND THE UNLAWFUL BLOOD ALCOHOL THEORY, HAVE THE EFFECT OF GIVING AN INSTRUCTION ON THE STATUTORY PRESUMPTIONS OF IMPAIRMENT IN SECTION 316.1934(2), FLORIDA STATUTES (2001), SUCH THAT IT IS ERROR TO GIVE THE STANDARD DUI JURY INSTRUCTION WHERE BLOOD ALCOHOL RESULTS WERE ADMITTED VIA THE TRADITIONAL PREDICATE?

We have accepted jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(4)(A) and 9.160(d). We answer the question in the negative. Since we have accepted jurisdiction over the certified question, we also have jurisdiction to address the county court’s order on a motion to suppress, the merits of which are addressed, infra. See Fla. R.App. P. 9.160(f)(1); 9.140(c)(1)(B).

At approximately 4:00 a.m. on January 5, 2001, Davie Police Officer Lance Seltzer responded to a one-car accident. He observed a vehicle had crashed its front-end into a tree in the median. He then spoke with two eye-witnesses who informed him the vehicle had “just driven off the road” into the tree. Seltzer then made contact with Jennifer Schreiber, who was standing by the car, and was identified as its driver. According to Seltzer, he noticed a strong odor of alcohol emanating from her face. She told him she did not know what had happened and that both her ankles were in a lot of pain. She was given medical attention at the scene, and was transported to Broward County General Hospital where she was later treated for two fractured ankles. Schreiber was not placed under arrest at this time.

Seltzer went to the hospital and made contact with Schreiber. He claimed she still smelled of alcohol as they spoke. Seltzer asked her if he could take a sample of her blood; however, he did not read her her rights under the Implied Consent Law, §§ 316.1932, 316.1933, 316.1934, Fla. Stat. (2001). See § 316.1932(l)(a)(2)(e), Fla. Stat. (2001)(one capable of responding may refuse to submit to blood test, provided his or her license will be suspended for a year for such refusal, and the refusal itself is admissible as evidence in any criminal proceeding). Schreiber consented to Seltzer’s request and a nurse took two blood draws. These blood draws reflected a blood alcohol content (“BAC”) of 0.15 and 0.14, respectively.

Thereafter Schreiber was charged with driving “while she was under the influence of an alcoholic beverage to the extent that her normal faculties were impaired and/or with a [BAC] of 0.08 or more,” in contravention of Section 316.193, Fla. Stat. (2001). Schreiber moved to suppress the results of the January 5 blood tests that had been taken at Officer Seltzer’s bequest, alleging her “consent” had not been knowing and voluntary, and Seltzer had lacked the authority to seize her blood. Schreiber also moved to strike that portion of the information which provided she had operated a motor vehicle “with a[BAC] of 0.08 or more,” relying on this court’s original opinion in Dodge v. State, 26 Fla. L. Weekly D1550 (Fla. 4th DCA June 20, 2001), which had held since the Implied Consent Law was “insufficient,” a jury could not be instructed on the presumption of impairment. See Miles v. State [Miles II], 775 So.2d 950 (Fla.2000)(holding FDLE procedures for handling blood samples, as delegated in the Implied Consent Law, are inadequate, and therefore the State is not entitled to the presumptions of impairment associated with the Implied Consent statutory scheme). Meanwhile, the State had filed a motion for approval of a subpoena duces tecum for Schreiber’s medical records from Broward General, which was granted. Schreiber moved to suppress these medical records as well.

All pending motions came before the county court on July 17, 2001. Testimony was received from both Officer Seltzer and Schreiber regarding the circumstances surrounding the January 5 blood draws. Expressly relying on this court’s June 20, 2001 opinion in Dodge, on which rehearing was pending, the county court granted Schreiber’s motion to strike that portion of the information which provided she had driven “with a[BAC] of 0.08 or more.” The court continued to rule on the two suppression motions, granting Schreiber’s motion to suppress the results of the January 5 blood draws, but denying her motion to suppress the subpoenaed medical records.

Subsequent to the county court’s orders entered below, this court withdrew its original opinion in Dodge, substituting a new opinion on rehearing. Dodge v. State, 805 So.2d 990 (Fla. 4th DCA 2001). Given our opinion on rehearing in Dodge, we answer the certified question in the negative. Florida law authorizes two alternative theories for the crime of driving under the influence: driving while one’s normal faculties are “impaired” [“impairment theory”], or driving with a blood alcohol level of 0.08 or higher [“unlawful blood alcohol theory — DUBAL”]. § 316.193(1)(a),(b), Fla. Stat. (2001). As our Supreme Court noted in Robertson v. State, 604 So.2d 783 (Fla.1992), the second theory, DUBAL, is a strict-liability theory of DUI, since the fact of operating a motor vehicle with a BAC of [0.08] or higher constitutes the offense of DUI even if impairment cannot be proven. Id. at 792 n. 14 (emphasis supplied). The court further noted there is some redundancy in the statutory DUI scheme, since impairment is presumed if the defendant’s BAC is [0.08] or higher. See § 316.1984(2), Fla. Stat. However, the presumption of impairment created by s. 316.1934(2) is a moot concern if the State proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful BAC, ie., 0.08 or higher. Id. Adding further confusion to this redundancy issue, in Miles II, our Supreme Court held the statutory presumption provided for in s. 316.1934(2) was invalid, ie., the State is not legally entitled to the presumptions of impairment associated with the Implied Consent Law. Miles II, 775 So.2d at 953-56. Yet, the court reaffirmed the admissibility of blood results introduced through the three-prong predicate discussed in Robertson, and not introduced pursuant to the Implied Consent Law. Id. at 955-57 (but noting blood results introduced through the Robertson predicate are not entitled to the Implied Consent presumptions, which are specially contingent upon compliance with the Implied Consent Law); see Robertson, 604 So.2d at 789 (the party seeking to introduce test results must establish: (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment, and (3) expert testimony must be presented concerning the meaning of the test).

On rehearing in Dodge, we adopted the Second District’s analysis in Tyner v. State, 805 So.2d 862 (Fla. 2d DCA 2001), holding where BAC results have been properly admitted under the Robertson predicate, and not vis-a-vis the Implied Consent Law, the court may instruct the jury that if it finds the defendant did in fact drive with an unlawful BAC, the defendant is guilty of the crime of DUI. Dodge, 805 So.2d at 994-95. As such, the standard jury instruction, which includes the alternative theories of DUI (impairment and DUBAL), does not improperly instruct the jury on the Implied Consent presumption of impairment, since the jury can be instructed on DUBAL (provided blood results have been introduced via the Robertson predicate) absent proof of any impairment. The certified question is thus answered in the negative. Consequently, that portion of the lower court’s order striking that portion of the information which provides Schreiber had driven “with a BAC of 0.08 or more” is reversed as well, where the introduction of blood test results via the Robertson predicate has not been foreclosed.

The lower court’s order granting Schreiber’s motion to suppress the January 5, 2001 test results is affirmed. We find no error in the lower court’s findings Schreiber’s consent was not knowing and voluntary under the totality of the circumstances. See State v. Jerome, 541 So.2d 756, 757 (Fla. 4th DCA 1989). Furthermore, we hold Officer Seltzer lacked authority to compel Schreiber’s blood pursuant to section 316.1933(1), where the only injury resulting from the accident was Schreiber’s two fractured ankles, from which she fully recovered; Seltzer had no probable cause that her operation of the motor vehicle had resulted in the “death or serious bodily injury of a human being.” § 316.1933(1), Fla. Stat. (2001); see Galgano v. Buchanan, 783 So.2d 302 (Fla. 4th DCA 2001)(broken leg resulting in 5% permanent impairment did not constitute “serious bodily injury” under section 316.1933(1)); cf. Gerlitz v. State, 725 So.2d 393 (Fla. 4th DCA 1998)(compelled blood provisions of section 316.1933(1) applicable where victim of car accident suffered a broken back). Where Officer Seltzer lacked authority to compel Schreiber’s blood, and Schreiber’s consent to the blood draws conducted pursuant to his request was ineffectual, the lower court acted correctly in suppressing the results of those blood draws.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with the foregoing opinion.

GUNTHER and GROSS, JJ., concur.

      . Section 316.1934(2), Florida Statutes (2001), in pertinent part, provides:
      At the trial of any civil or criminal action or proceeding arising out of acts alleged to have been committed by any person while driving, or in actual physical control of, a vehicle while under the influence of alcoholic beverages or controlled substances, when affected to the extent that the person's normal faculties were impaired or to the extent that he or she was deprived of full possession of his or her normal faculties, the results of any test administered in accordance with s. 316.1932 or s. 316.1933 and this section are admissible into evidence when otherwise admissible, and the amount of alcohol in the person’s blood or breath at the time alleged, as shown by chemical analysis of the person's blood, or by chemical or physical test of the person's breath, gives rise to the following presumptions:

      (c) If there was at that time a blood-alcohol level or breath-alcohol level of 0.08 or higher, that fact is prima facie evidence that the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired. Moreover, such person who has a blood-alcohol level or breath-alcohol level of 0.08 or higher is guilty of driving, or being in actual physical control of, a motor vehicle, with an unlawful blood-alcohol level or breath-alcohol level. (Emphasis supplied.)

      . We note Schreiber has not challenged the lower court’s denial of her motion to suppress the subpoenaed medical records, which contain blood test results, in this appeal. See Robertson, 604 So.2d at 789-91 (test results of blood drawn for exclusively medical purposes are outside the scope of the Implied Consent Law, and may be seized and used as evidence in DUI prosecutions). If admitted at trial, this evidence would provide alternative evi-dentiary support for the giving of a jury instruction encompassing the DUBAL theoiy of DUI. See Baber v. State, 775 So.2d 258, 263 (Fla.2000)(hospital records of a blood test made for medical purposes may be admitted in criminal cases pursuant to the business record exception to the hearsay rule; however, defendants must be given a full and fair opportunity to contest the trustworthiness of such records before they are submitted into evidence).


author: STONE, J.

text:
    Jonathon MENDEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3822.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Stephen J. Finta of Law Offices of Stephen J. Finta, P.A., Fort Lauderdale, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Monique E. L’ltalien, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Mendez was declared a youthful offender following a no contest plea on a charge of trafficking in MDMA. On appeal, he contests that part of the sentence imposing a three-year minimum mandatory term and a $50,000 fine. We reverse.

The trial court erred in sentencing Mendez to a mandatory minimum term of three years and imposing the $50,000 fine after declaring him to be a youthful offender. Although section 893.135, Florida Statutes, under which Mendez was charged, authorizes such penalties, the youthful offender statute does not provide for mandatory minimum terms or the imposition of fines in sentencing youthful offenders. § 958.04(2)(d), Fla. Stat. (2001).

The Youthful Offender Act is a separate statutory scheme for treating young defendants to whom the Act applies. A sentence imposed under the Act is “[i]n lieu of other criminal penalties authorized by law....” § 958.04(2), Fla. Stat. (2001). The sentencing provisions of the act are the exclusive sanctions that may be imposed in a youthful offender sentence. Jones v. State, 588 So.2d 73, 74 (Fla. 4th DCA 1991)(holding that trial court erred in imposing mandatory minimum sentence on defendant who was also sentenced as youthful offender). Once a court classifies a defendant as a youthful offender, it is prohibited from imposing sanctions other than those of the Youthful Offender Act. See Dean v. State, 476 So.2d 318 (Fla. 2d DCA 1985)(trial court erred in imposing a three year mandatory minimum term of imprisonment on a defendant classified as a youthful offender); Patterson v. State, 408 So.2d 785 (Fla. 2d DCA 1982)(defen-dant who was adjudicated guilty of burglary and armed robbery could not be given mandatory three years imprisonment pursuant to statute providing for such sentence as a minimum for defendants convicted of specified offenses, because the sentencing provisions of the Youthful Offender Act were the exclusive penalties available to the sentencing judge); Waugh v. State, 406 So.2d 1238 (Fla. 2d DCA 1981)(remanding case so that youthful offender would not be re-sentenced in excess of maximum allowed under Youthful Offender Act). Here, where Mendez was declared a youthful offender, the court was prohibited from imposing the mandatory minimum sentence and the fíne where neither sanction is authorized by the Youthful Offender Act.

The fact that the sentence imposed here does not exceed the maximum allowed under the Act does not affect the result. We have considered Porter v. State, 702 So.2d 257 (Fla. 4th DCA 1997), which recognized that a mandatory minimum was improper when combined with a youthful offender sentence that exceeded the statutory maximum under the Youthful Offender Act. Id. at 257. However, Porter did not recognize a separate rule, it merely applied the general rule to the facts of that case; the rule being that once a defendant is classified as a youthful offender, the court is prohibited from imposing sanctions other than those of the Youthful Offender Act. Id.

The record reflects that the sentencing error was preserved. We also reject the contention that any error, here, was harmless. See Trent v. State, 403 So.2d 1131 (Fla. 4th DCA 1981)(harmless error did not apply where youthful offender was sentenced to a three year minimum term of imprisonment under section 775.087).

We remand with directions that the trial court strike those portions of the sentence making the three year sentence mandatory and imposing a $50,000 fine.

WARNER and MAY, JJ., concur.


text:
    K.S., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3423.
    District Court of Appeal of Florida, Fourth District.
    Jan. 22, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

K.S., adjudicated delinquent upon her violation of probation, appeals the disposition order on grounds that the trial court erred in committing her to a high-risk residential facility, a departure from the Department of Juvenile Justice’s (DJJ) recommendations. We affirm.

In ordering that K.S. be placed at a restrictiveness level higher than that recommended by the DJJ, the trial court stated its reasons for disagreeing with the DJJ recommendation.

Initially, K.S. pled guilty to the charge of battery on a police officer. The charge stemmed from an incident at middle school in which a school police officer tried to stop K.S. from leaving school grounds. K.S. struggled with the officer, kicking and hitting in an attempt to free herself from the officer’s restraint.

The court placed K.S. on probation. Two months later, K.S. violated the conditions of her probation by absconding from her mother’s home. The pre-disposition report (PDR) notes an additional probation violation for an incident in which K.S. was suspended from school for being disruptive. The PDR was amended to include the second violation of probation but the only change in recommendation was that K.S. be adjudicated.

Although the DJJ had initially recommended that K.S. be placed on probation and that adjudication be withheld, the DJJ representative at the disposition hearing acknowledged that probation would not be an effective disposition. The DJJ’s recommendation contained in the PDR, according to its representative, was based on the assumption that K.S. would successfully complete the Pace program. However, she had been absent for an entire month of the program and had been picked up for shoplifting. When the judge asked for the DJJ’s comments, its representative told him that, “as far as the probation is concerned ... we’ve pretty much tried every means that we can in trying to work with her.”

The trial court gave the following reasons for committing K.S. to a high-risk residential facility (level 8):

1) The mother is unable to control her child.... For instance, K.S. leaves home for extended periods in the company of older men which is dangerous.
2) Her school records and attendance, as reflected by the PDR indicate that she is a flight risk.
3) She has a “history of supervision, her noncompliance, her repeated violations.”

The trial court has the discretion to order placement of a delinquent child at a restrictiveness level higher than that recommended by the DJJ. Section 985.23, Florida Statutes, in outlining a series of steps a court must take before determining placement for a delinquent child, provides that where the court finds that the child is suitable for adjudication and commitment to the DJJ, it must state reasons for its findings. § 985.23(3)(a), Fla. Stat. (2001). Although courts are encouraged to follow the DJJ’s recommendation, they are given the discretion to disregard it provided the court can state reasons for doing so. § 985.23(3)(c), Fla. Stat. (2001).

Here, the DJJ representative, speaking for the department, told the court “as far as the probation is concerned ... we’ve pretty much tried every means that we can in trying to work with her.” Such a comment, alone, would be a basis for imposing a higher restrictiveness level.

K.S. argues that subsection (3)(b), which requires a DJJ recommendation “specifically identifying the restrictiveness level most appropriate for the child,” was not satisfied by the comments of the DJJ representative. Further, she argues that the court’s comment does not explain why the juvenile’s needs would be met by placement in a level 8 restrictiveness program rather than in a program with a lower level of restrictiveness.

In C.T. v. State, 819 So.2d 869, 871 (Fla. 4th DCA 2002), review granted by, SC 02-1811, 835 So.2d 265 (Dec. 5, 2002), this court recognized that a juvenile judge may disagree with the DJJ based on the evidence contained in the pre-disposition report and affirmed the court’s upward departure from the DJJ recommendation. Id. at 873 (“A trial court may rely upon the same factors and reach a different conclusion as long as it articulates the basis for disagreeing with the recommendation.”); see also K.W. v. State, 818 So.2d 665 (Fla. 4th DCA 2002); E.W. v. State, 818 So.2d 662 (Fla. 4th DCA 2002); AW. v. State, 818 So.2d 665 (Fla. 4th DCA 2002); A.T. v. State, 819 So.2d 873 (Fla. 4th DCA 2002). In S.L.K. v. State, 776 So.2d 1062, 1064 (Fla. 4th DCA 2001), we indicated, however, that such placement, even where supported by the preponderance of the evidence, as required, must reference the characteristics of the restrictiveness level imposed vis-a-vis the juvenile.

We also recognize that in E.S.B. v. State, 822 So.2d 579 (Fla. 1st DCA 2002), the First District relied on this court’s holding in C.T., but reversed the trial court’s disposition order because its reason for disagreeing with the DJJ and imposing a higher restrictiveness level, i.e., her “long prior,” was insufficient. Id. at 581. The trial court failed to “explain how or why a ‘long prior’ record might lead the trial court to impose a moderate risk commitment.” The First District admitted that it could speculate as to why the court imposed the commitment level it did, but reasoned, “such speculation cannot be the basis of appellate review.” Id.; accord S.S.M. v. State, 814 So.2d 1234, 1235 (Fla. 5th DCA 2002)(vacating the juvenile court’s order and remanding because the court had not referenced the characteristics of the restrictiveness level and the needs of the child).

Although we are concerned that our comment in S.L.K may go a step beyond the explicit statutory requirement, we note that it was dicta and did not purport to set a standard going beyond that specified by statute. Section 985.23, Florida Statutes (2001), does not require the court to explain why it is imposing a different restrictiveness level by articulating the “characteristics of the restrictiveness level imposed vis-a-vis the needs of the juvenile.” This is a requirement born of judicial interpretation, albeit one which this court apparently reiterated in S.L.K. S.L.K., however, was decided on different grounds, as there, we concluded that the trial court’s reasons were not supported by the record. 776 So.2d at 1064.

Further, the reasons given by this trial court, here, included the child’s exposure to danger by her conduct in leaving home for extended periods of time in the company of older men, that she is a flight risk, and her history of repeated violations of her community supervision. A review of section 985.03(45), Florida Statutes (2001), provides the court with information concerning the extent to which a commitment program is secure. “High-risk” programs “shall not allow youth to have access to the community. Facilities are hardware-secure with perimeter fencing and locking doors.” “Moderate-risk” programs “may allow youth to have supervised access to the community. Facilities are either environmentally secure, staff secure, or are hardware-secure with walls, fencing, or locking doors.” § 985.03(45)(b), Fla. Stat. Thus, the reasons stated by the trial court in this case, i.e., flight risk, and her continued exposure to danger by her conduct, inherently explain why the characteristics of the restrictiveness level, i.e., a physically locked facility, are necessary to “secure” the juvenile for her own protection as well as that of the public.

Deferring, as we should, to the discretion of the trial court, we conclude that the trial court’s findings and reasons for placement are supported by the record and are sufficient under the statute. As we do not deem our opinion factually in conflict with E.S.B., we decline to certify a conflict.

STONE, HAZOURI, and MAY, JJ. concur.


text:
    Morgan CREWS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3491.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    James C. Banks, Tallahassee, for appellant.

      Richard E. Doran, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Palmer v. State, 782 So.2d 508 (Fla. 1st DCA 2001).

ERVIN, WOLF and LEWIS, JJ., concur.


text:
    Darrell Lavalle DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4627.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    William Mallory Kent of the Law Office of William Mallory Kent, Jacksonville, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

DISMISSED. Adams v. State, 734 So.2d 1086 (Fla. 1st DCA 1999).

DAVIS, PADOVANO and POLSTON, JJ., concur.


text:
    Carolyn T. SMITH, Appellant, v. WAL-MART, INC., Appellee.
    No. 1D01-2077.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    Carolyn T. Smith, pro se.
    Brent F. Bardley, Kinsey, Troxel, Johnson & Walborsky, Pensacola, and Jeffrey P. Gill, Vernis & Bowling of NW Florida, Pensacola, for Appellee.
   PER CURIAM.

The trial court’s order of dismissal is REVERSED, and the case is REMANDED to the trial court for an explicit determination whether the plaintiffs failure to attend the mediation conference was willful. See Commonwealth Federal Savings and Loan Association v. Tubero, 569 So.2d 1271 (Fla.1990); Tiller v. Straub Capital Corp., 800 So.2d 364 (Fla. 4th DCA 2001); Swindle v. Reid 242 So.2d 751 (Fla. 4th DCA 1971).

BARFIELD, POLSTON and HAWKES, JJ., Concur.


text:
    April A. JOHNSON, Mother, B.K.M. & R.I.H., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D02-4456.
    District Court of Appeal of Florida, First District.
    Jan. 23, 2003.
    D. Reed Ammon, Pensacola, for Appellant.
    Earlynn Stillwell, James Klinge, Ron Ringo, Kathryn Errington, Gregory P. Farrar, & Richard D. Cserep, Pensacola, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated November 13, 2002, this appeal is hereby dismissed for lack of jurisdiction.

ALLEN, C.J., BOOTH and BARFIELD, JJ., concur.