text:
    Travis JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D99-4114.
    District Court of Appeal of Florida, Fourth District.
    March 26, 2003.
    Rehearing Denied May 15, 2003.

      Jason T. Forman of Law Offices of Jason T. Forman, P.A., and Gary S. Ostrow of Law Firm of Gary S. Ostrow, Fort Lauderdale, for appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

We affirm James’ conviction and sentence for first-degree murder and attempted robbery with a firearm. The principal issues on appeal arise out of the seating of a juror with a name similar to the juror actually selected.

Upon the completion of voir dire, the venire was excused from the courtroom and twelve jurors, including Robert Burns and two alternate jurors, were selected. The court deputy called out the names of those selected. Among those called to return to the courtroom was “Mr. Burns;” however, another juror, Frederick Burtz, responded. Those not selected were excused. Robert Burns excused himself as well. Before the jury was sworn, each member stated his or her last name. The transcript indicates that Mr. Burtz said the name “Burns.” Defense counsel agreed, on the record, that the people who had been called accounted for the entire jury-

Following the verdict, discharge of the jury, and sentencing, the court was informed by jury administration that, although Robert Burns appeared in their records as being a juror, Frederick Burtz had actually served on the jury throughout the trial.

Defense counsel made an ore tenus motion for new trial, arguing that Frederick Burtz, as an unauthorized person, had contaminated the jury. He further argued that he would never have selected Burtz to serve on the jury. The court conducted a hearing on the motion.

Not much information was learned from either Burns or Burtz in voir dire. The transcript reflects that Burns was single, employed, had no children, had never been involved in a lawsuit, did not have friends or family in law enforcement, and had never been a juror. He had been arrested twenty years ago for driving under the influence. He believed the court system had treated him fairly after his arrest and that the experience would not affect his ability to be a fair juror.

Fred Burtz had never been arrested, worked at a supermarket, and was married with two adult children. He had never been involved in any lawsuits, did not know of any family members or friends in law enforcement, and had never been a juror. Burtz was briefly questioned as follows:

[STATE]: How about Mr. — is it Burtz?
[JUROR BURTZ]: Yes, sir.
[STATE]: Somebody had been arrested in your family?
[JUROR BURTZ]: No, sir.
[STATE]: Couldn’t hear you all the way back over here. Could you be a fair juror in this case?
[JUROR BURTZ]: I will do my best.
[STATE]: Do you want to be a juror?
[JUROR BURTZ]: Not particularly, but I will try.
[STATE]: I don’t think anybody really wants to be a juror. It’s kind of a silly question, isn’t it. If you had to be, you could make sure that you would return a verdict that is justice?
[JUROR BURTZ]: Yes.

During the hearing on James’ motion for new trial, Frederick Burtz was questioned by the court as to how he had come to serve on the jury. Burtz explained that he thought he had heard his name called. Burtz denied having the intent to pass himself off as Robert Burns and, in fact, claimed he had not even been aware that there had been a “Burns.” Burtz told the court that, prior to deliberating, he had advised one of the bailiffs that his name was “Burtz” because he believed it was being mispronounced in court. He also notified the bailiff that the spelling of his name on the seating chart was incorrect.

The bailiff testified that he checked the list where the jurors had written down their names and phone numbers and, believing the misspelling to be his error, changed the name from Robert Burns to Robert Burtz. He did not bring it to the court’s attention because he believed that he had corrected the error.

The evidence at trial included a confession, the essential issue being whether James was shooting to kill the victim or to stop the victim from running away. There was no indication that the jury or Frederick Burtz had not been fair and impartial. The trial court denied James’ motion for new trial, concluding that defense counsel’s failure to object to Burtz serving on the jury was a waiver of his right to challenge Burtz’s qualifications. Furthermore, when given the opportunity to question Burtz, defense counsel conceded that the mix-up did not amount to juror misconduct.

We do not find that the court abused its discretion in denying James’ motion for new trial. Absent an abuse of discretion, a trial court’s order denying a motion for new trial will not be disturbed on appeal. Woods v. State, 733 So.2d 980, 988 (Fla.1999). James asserts he is entitled to a new trial pursuant to rule 3.600(b)(4), Florida Rules of Criminal Procedure, which states that courts shall grant a new trial where “[a]ny juror was guilty of misconduct.” However, as the state points out, this argument was not raised in the trial court.

During the hearing on his motion for new trial, defense counsel agreed with the court that juror Burtz was not guilty of misconduct: “I think it was confusion. Somebody, they called out a name Burns that sounded like Burtz and this man responded. It was a good faith human error.” Defense counsel argued that court personnel were to blame for the error and that, as agents of the court, their mistake-allowing an unauthorized person to serve on the jury — was per se reversible error.

The defense argument that Burtz is guilty of juror misconduct is raised for the first time on appeal. Furthermore, even assuming the error had been preserved, a new trial was not mandated because the record does not support James’ allegation of juror misconduct.

Generally, juror misconduct issues arise where a juror conceals a material fact during voir dire. See Roland v. State, 584 So.2d 68, 70 (Fla. 1st DCA 1991). Even where false information conceals the fact that a venireman may be unqualified, reversal is not necessarily required. See State v. Rodgers, 347 So.2d 610, 611 (Fla.1977)(reversal not required where seventeen-year-old juror lied about her age to sit on jury because defendant had fair and impartial jury). The fact is material if it exposes an inherent bias in favor of or against either party. See Lowrey v. State, 705 So.2d 1367 (Fla.1998).

Here, Burtz was truthful during voir dire and he satisfied the requirements set out for jurors under section 40.01, Florida Statutes. Mr. Burtz, who served as foreperson, even signed the verdict form “Fred Burtz.”

Additionally, even where there is evidence of some juror misconduct, reversal is not required, per se, because

[n]ot every irregularity which would subject a juror to censure should overturn the verdict. In order to authorize the setting aside of a verdict on account of misconduct of the jury, it must appear that such misconduct may have had an influence upon the final result, and caused injury to the complaining party.

Rodgers, 347 So.2d at 613 (quoting from Wharton’s Treatise on Criminal Law and Procedure). Once the appellant has established juror misconduct, he is entitled only to a rebuttable presumption of prejudice and, thus, a new trial, unless the state can demonstrate to the court that any prejudice was harmless. Gould v. State, 745 So.2d 354, 358 (Fla. 4th DCA 1999). In the instant case, there is no evidence that Burtz’s presence on the jury affected the verdict or prevented a fair trial.

We have considered, but reject, the contention that the mistake constitutes fundamental error. Fundamental error is error that “goes to the foundation of the case or the merits of the cause of action.” J.B. v. State, 705 So.2d 1376, 1378 (Fla.1998). We note that in other jurisdictions, courts have held that the failure of defense counsel to make a timely objection to the improper seating of a juror precluded review unless prejudice could be shown. See United States v. Cole, 796 F.2d 380, 381 (11th Cir.1986); United States v. Levesque, 681 F.2d 75, 80-81 (1st Cir.), cert. denied, 459 U.S. 1089, 103 S.Ct. 574, 74 L.Ed.2d 936 (1982); Acosta v. State, 522 S.W.2d 528 (Tex.Crim.App.1975).

In Cole, the court inadvertently failed to dismiss a male juror who had been the subject of defense counsel’s peremptory challenge. 796 F.2d at 381. A female juror had been selected to take his place. No one noticed the oversight. When the jury was polled, the court realized that the male juror’s name was not on the list of jurors; however, neither party objected. After the jury had been discharged, the clerk discovered and advised the court of the error in not excusing the stricken male juror. Defense counsel said he had not noticed because he was taking notes. Id.

The trial court, in Cole, denied the appellant’s motion for new trial, finding that, without a showing of prejudice, he had waived his objection. The Eleventh Circuit affirmed, reasoning that “[a] contrary rule would permit a defendant to gamble on a favorable verdict and, if the verdict was unfavorable, later raise an improper jury claim.” Id. In light of the appellant’s opportunity to discover the mistake in time for the court to correct it, and the lack of evidence of prejudice, the reviewing court found that a new trial was not warranted. Id. at 382.

We also reject the contention that, on the face of the record, defense counsel was ineffective by failing to notice that an unselected juror was chosen. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Under Strickland, a defendant making this argument must first show that counsel’s performance was deficient and, second, that “counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.” Id. at 687, 104 S.Ct. 2052. On the instant record, however, even if counsel was unaware that Burtz had replaced Burns on the jury, James was not prejudiced by the deficient performance.

We, therefore, affirm James’ conviction and sentence. As to all other issues raised on appeal, we also conclude that there is no reversible error or abuse of discretion.

GROSS and MAY, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.W., a child, Petitioner, v. STATE of Florida, Respondent.
    No. 4D03-723.
    District Court of Appeal of Florida, Fourth District.
    April 2, 2003.
    Rehearing Denied May 12, 2003.
    Man H. Schreiber, Public Defender, and Sarah W. Sandler, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Petitioner, J.W., filed a petition for writ of prohibition seeking speedy trial discharge under Florida Rule of Juvenile Procedure 8.090 (2002). It is undisputed that the adjudicatory hearing was not held within ninety days of the petition for delinquency as required by that rule.

The trial court granted the state an extension of the speedy trial period based upon its showing that it had made three unsuccessful attempts to serve J.W. with the delinquency petition. All three attempts were made during school hours at J.W.’s residence. All three times, the process server found no one at home.

The 'state’s evidence was insufficient to demonstrate that it made diligent efforts to serve J.W. The state, therefore, failed to demonstrate that he was unavailable within the meaning of rule 8.090(d)(4) and it was error for the trial court to extend the speedy trial period. See R.K. v. State, 778 So.2d 1098 (Fla. 4th DCA 2001) (citation omitted).

The petition for writ of prohibition is granted. The trial court is directed to discharge J.W.

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


author: COPE, J.

text:
    Kanisky EVANS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1886.
    District Court of Appeal of Florida, Third District.
    April 2, 2003.
    Clarification and Rehearing Denied May 7, 2003.

      Kanisky Evans, in proper person.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and RAMIREZ, JJ.
   COPE, J.

Kanisky Evans appeals an order denying his motion for postconviction relief. We affirm.

Defendant-appellant Evans is currently serving a habitual offender sentence imposed in Miami-Dade County Circuit Court case number 97-33314. He asserts that his earlier conviction for possession and sale of cocaine in Miami-Dade County Circuit Court case number 94-4827 was impermissibly counted as a predicate offense for habitualization. He states that his plea bargain in the 1994 case was for a withhold of adjudication.

The plea colloquy conclusively refutes this claim. The plea colloquy twice states that the plea agreement is for an adjudication. Thus, adjudication was properly imposed as stated in the judgment. The 1994 case was properly counted as a predicate offense for habitualization purposes. See § 775.084(l)(a)3., (2), Fla. Stat. (1997).

The defendant asserts that his counsel was ineffective by misadvising him of the maximum penalty for the 1994 charges for possession and sale of cocaine. He contends that if correctly advised, he would have proceeded to trial. This claim was not brought within two years of the 1994 adjudication and is thus time-barred.

The defendant asserts that his counsel misadvised him by telling him that if he entered the plea in the 1994 case, that this was the last he would hear of that case. This claim appears to be based on the misunderstanding that his agreement was for a withhold of adjudication whereas it was, in fact, for an adjudication. Even if that were not so, we have held that a general statement that there will be no future consequences of the plea “is properly viewed as addressing the civil effects of the plea, not future recidivism.” Collier v. State, 796 So.2d 629, 630 (Fla. 3d DCA 2001). We recognize that the rule followed in this district differs from that followed in the Fourth District. Wallace v. State, 833 So.2d 796 (Fla. 3d DCA 2002).

Finally, the defendant is not entitled to a hearing on his claim in any event because, under the circumstances of this case, the claim is facially incredible. The plea bargain in this case was for an adjudication on the charge of selling a small quantity of cocaine to an undercover police officer. The agreed sentence was two days credit for time already served. The defendant now says that if he had known that the 1994 conviction could be used against him in the future, he would have rejected the • plea bargain for credit for time served, and instead proceeded to trial on felonies subjecting him to a potential sentence of up to fifteen years in prison. This claim is so thoroughly contrary to common sense as to be inherently incredible, and does not warrant a hearing. See McLin v. State, 827 So.2d 948, 955 (Fla.2002); Stephens v. State, 829 So.2d 945, 946 (Fla. 1st DCA 2002); Padron v. State, 827 So.2d 393, 394 (Fla. 2d DCA 2002).

Affirmed.

       We decline to certify direct conflict with the Fourth District cases, see, e.g., Smith v. State, 784 So.2d 460 (Fla. 4th DCA 2000), because for the reason stated in the concluding portion of this opinion, the defendant would not be entitled to relief in any event.


author: DAVIS, J.

text:
    Ronald ARROWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-4034.
    District Court of Appeal of Florida, First District.
    April 3, 2003.
    Rehearing Denied May 5, 2003.

      Nancy A. Daniels, Public Defender; G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   DAVIS, J.

Appellant, Ronald Arrowood, seeks review of his convictions and sentences for driving under the influence (DUI), committing manslaughter and failing to render aid, DUI with serious bodily injury (two counts), and DUI with damage to person. He contends that the trial court abused its discretion in granting the State’s motion in limine prior to trial and overruling his objection to the prosecutor’s misstatement of the law during closing argument. Appellant further argues that the trial court erred in scoring victim injury points which caused his Criminal Punishment Code Scoresheet sentence to be increased beyond the statutory maximum for his primary offense and by sentencing him, pursuant to the scoresheet, to a life sentence contrary to the decision in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Finding no error as to the first two points on appeal, we affirm the convictions without further discussion. We agree with appellant, however, that he is entitled to relief under Ap-prendi, and therefore reverse and remand for resentencing.

After appellant was sentenced to life in prison and during the pendency of this appeal, he properly filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2) to raise his Apprendi claim. The record contains the Criminal Punishment Code Scoresheet and the jury’s verdict which conclusively establish that the trial court’s assessment of victim injury points on three of the counts was proper. The jury’s findings of DUI manslaughter and DUI serious bodily injuries support the imposition of the death and severe victim injury points. The same record documents establish, however, that the trial judge, and not the jury, found that the DUI damage to person count constituted moderate victim injury worthy of 18 points. In this unusual set of facts and points, the assessment of the 18 points became crucial because it caused appellant’s total points to exceed 363 points. By virtue of the total score of 376.4 points, appellant became subject to the imposition of a life sentence. § 921.0024(2), Fla. Stat. (2000) (“If the total sentence points are greater than or equal to 363, the court may sentence the offender to life imprisonment.”). Had the trial court added only 4 slight victim injury points for the DUI damage to person count, instead of the 18 moderate victim injury points, appellant’s total sentence points would have equaled 362.4 points. Appellant’s lowest permissible prison sentence on the Criminal Punishment Code scoresheet would have been 250.8 months while the maximum sentence he could have received would have been the statutory maximum for the primary and any additional offenses as provided in section 775.082. § 921.0024(2), Fla. Stat. (2000) (“The permissible range for sentencing shall be the lowest permissible sentence up to and including the statutory maximum, as defined in s. 775.082, for the primary offense and any additional offenses before the court for sentencing.”). As a result, we agree with appellant that the computation of points on the DUI damage to person count by the trial court and resulting life sentence violate the rule announced in Apprendi.

In Apprendi, the Supreme Court of the United States held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Under the Apprendi analysis, the trial court erred in assessing victim injury points for moderate injury without a jury finding as to whether the “damage to person” was moderate or slight.

“[I]n Florida, for purposes of determining a constitutional violation under Ap-prendi, the relevant ‘statutory maximum’ is found in.section 775.082.” McCloud v. State, 803 So.2d 821, 827 (Fla. 5th DCA 2001) (en banc), rev. denied, 821 So.2d 298 (Fla.2002), cert. denied, — U.S. -, 123 S.Ct. 553, 154 L.Ed.2d 455 (2002). The statutory maximum penalty for DUI manslaughter, a first degree felony pursuant to section 316.193(3)(c)3.b., Florida Statutes (2000), is a term of imprisonment not exceeding thirty years. § 775.082(3)(b), Fla. Stat. (2000). As recently recognized by the Florida Supreme Court, “any fact that increases the punishment for a crime beyond the prescribed statutory maximum must be submitted to a jury and proved beyond a reasonable doubt.” Kormondy v. State, 2003 WL 297027, 845 So.2d 41 (Fla. Feb. 13, 2003). Because the jury only found that there was damage to the person and there was no finding as to the severity of the damage, and because the 18 points at issue are pivotal in whether appellant’s total points exceed 363 points and therefore allow for a sentence beyond the statutory maximum, we conclude that appellant is entitled to relief under Apprendi. We reverse and remand for further proceedings consistent with this opinion. All other issues are affirmed.

Affirmed in part, reversed in part, and remanded with directions.

ERVIN and BENTON, JJ., concur.


author: WARNER, J.

text:
    Ellen ARTUSO, Appellant, v. Robert DICK, Appellee.
    No. 4D01-4241.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Rehearing Denied May 21, 2003.

      Alan R. Burton, Fort Lauderdale, for appellant.
    Richard L. Rosenbaum of Law Offices of Richard L. Rosenbaum, Fort Lauderdale, for appellee.
   WARNER, J.

The mother appeals a final judgment in a paternity action awarding the father primary physical residence of their child and granting other relief. She claims the court abused its discretion in granting the father primary physical residency, vacating her vested arrearage of child support, imputing income to her, denying her attorney’s fees, and computing the child support award. We find error only in the failure of the court to make findings supporting the imputed income and the computation of child support. As to all other issues we affirm.

This case has been exceedingly contentious between the parties and has resulted in many proceedings, including a dependency proceeding. The mother originally had custody of the minor son until she voluntarily placed him, at nine months of age, with the father for a period of approximately one year while she remodeled her home. When she asked for his return, the father refused, prompting multiple proceedings. The mother obtained an order of temporary custody for a brief period of time, until the court returned custody to the father. The mother again obtained custody of the child after filing a petition for an injunction for protection against domestic violence. Because of the domestic violence injunction, the Department of Children and Families also filed a petition for the adjudication of dependency as to the father.

Due to these actions, the father was without primary custody of the child for nine months. During this time, the mother did not permit the father to see or speak to the child. On the court’s own motion, the child was taken from the mother and again placed with the father. The court further ordered the mother to have no contact with the child. Subsequently, the dependency case was dismissed.

During the proceedings, while the child was in her custody, the mother obtained an award of child support. This order was entered in December, 1999, and included retroactive child support to September. In April, 2000, the father filed a petition to determine the paternity of the child and to establish primary residency and support for the child. The court awarded custody to the father on May 22, 2000. Later, the father moved for a temporary order of support. The mother moved to hold the father in contempt for failing to pay the support order in the prior proceedings, which arrearage was $4,967.00 through May, 2000.

When the entire paternity, custody and support case came to trial and after hearing conflicting evidence on the issues, the court found that it was in the best interests of the child for the parents to share custody, with the father being the primary residential parent. The court determined that the criteria listed in section 61.13, Florida Statutes (1999), favored the father as primary residential custodian. The court granted visitation to the mother, imputed income to the mother in the amount of $17,500 per year, and determined she should pay $325.82 per month in child support. While the father asked for the amount to be made retroactive to the filing of the action, so as to offset the amount he owed in child support arrearage, the court determined the awards would be “a wash.” The court also ordered each party to bear their own attorney’s fees and costs.

The evidence regarding the appropriate parent to have residential custody of the child was conflicting. “Despite a conflict in the evidence, an appellate court will not disturb the trial court’s custody decision unless there is no substantial competent evidence to support that decision.” Adair v. Adair, 720 So.2d 316, 317 (Fla. 4th DCA 1998) (citation omitted). The trial court is afforded wide discretion, and “ ‘that discretion is abused only where no reasonable man would take the view adopted by the trial court.’ ” Ford v. Ford, 700 So.2d 191, 195 (Fla. 4th DCA 1997) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). Although there was evidence to support either parent on the issue of primary residential custodian, we find no abuse of discretion in the trial court’s ruling.

We also find no reversible error in the trial court’s vacation of the mother’s child support arrearage. The arrearage due to the mother totaled $4,900. The father was awarded $325 per month in child support and requested retroactive application to April, 2000 when he filed his petition for support. At the time of the final judgment, the amount due and owing from the mother would have been $5,525 (seventeen months at $325 per month). Rather than have each party have an ar-rearage due, the court “washed out” each arrearage. This decision actually worked to the detriment of the father, not the mother. While the mother’s right to her ar-rearage was vested, the court simply used that award to offset against what would have been her greater obligation of support to the father. We affirm the trial court’s ruling.

The court imputed $17,500 in income to the mother, which she claims the evidence did not support. “The standard of review for a trial court’s imputation of income is whether there is competent, substantial evidence to support it.” Wendel v. Wendel, 805 So.2d 913, 914 (Fla. 2d DCA 2001) (citation omitted). The mother has a masters in business administration and an appraiser’s license, but she chooses to groom dogs part-time. Her financial affidavit, previously filed in the proceedings, showed her net income was $3,600 per month. She did not testify to that level of income at trial. She also had been depending upon an inheritance but testified she was looking for employment as an appraiser. The trial court imputed income to the mother in the amount of $1,240 per month, but did not set forth the basis for its holding. In Viscito v. Menditto, 644 So.2d 135, 136 (Fla. 4th DCA 1994), although there was ample evidence in the record for the trial court to impute income, we still reversed and remanded for the trial court to make express findings regarding the amount and source of the income. Viscito compels that result here. We therefore reverse for the trial court to set forth its findings on this issue. The court may, in its discretion, take additional testimony on the issue.

Finally, the court miscalculated the health insurance expense in the child support award. Section 61.13(l)(b) provides, “the court shall apportion the cost of [health insurance] coverage, and any non-covered medical, dental, and prescription medication expenses of the child, to both parties by adding the cost to the basic obligation determined pursuant to s. 61.30(6).” Section 61.30(6) lists the schedules to be applied to the combined net income of the parents to determine the child’s minimum need of support. Section 61.30(8) further provides that, “[hjealth insurance costs resulting from coverage ordered pursuant to s. 61.13(l)(b) ... shall be added to the basic obligation unless these expenses have been ordered to be separately paid on a percentage basis.” After adding health insurance costs, the percentage share of support to be paid by each parent is “determined by dividing each parent’s net income by the combined net income,” § 61.30(9), and the actual dollar share to be paid by each parent is “determined by multiplying the minimum child support need by each parent’s percentage share.” § 61.30(10).

Here, the trial court ascertained that the mother’s net monthly income was $1,240 per month and the father’s net monthly income was $1,950 per month. The court then determined the child’s minimum need of support, under 61.30(6), was $680 per month. The next step taken by the court was to multiply that amount by 39%, the mother’s percentage share. After determining the mother owed $265.20 monthly for child support, the court added $60.62 per month to cover the entire amount of the child’s portion of the wife’s health insurance premium. Rather than including the cost of health insurance for the child before determining the parent’s respective support obligations, the trial court tacked on the full amount of the child’s health insurance premium solely to the mother’s share of the child support. This action by the trial court was not in conformity with the statutory requirements for assessing child support. We therefore reverse for recalculation.

On all other issues, we affirm the trial court.

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

GUNTHER, J., and HENRY H. HARNAGE, Associate Judge, concur.


author: PER CURIAM. HAZOURI, J.,

text:
    Kenneth JONES, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-3439.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.
    Rehearing Denied May 19, 2003.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This is an appeal from a burglary conviction. The Defendant was accused of walking into a dormitory room on a college campus and forming the intent to steal items inside the room. Jacky Atiene, the occupant of the dormitory room, testified that he was lying on the top bunk watching television in the darkened room. He left his door cracked open approximately two inches, as was his practice. He watched the Defendant, whom he did not know at the time, walk into the room and close the door behind him. The defendant “licked his lips” and walked toward the crates beneath Atiene’s bunk, where Atiene stored his music collection. Atiene asked him what he was doing there, and the Defendant replied, “I’m looking for Lisa.” Atiene told him he did not know of any Lisa and threatened to beat him. The Defendant ran down the three flights of stairs to the ground floor with Atiene in pursuit. Atiene and a security guard caught up with him just outside the building where Atiene explained to the guard what happened.

The guard testified that the Defendant told her that he was looking for directions and he had been waiting for a girl across the street who did not come. So he came to the dormitory looking for directions, and he was also “looking for Lisa.” She also determined that he was not a student at the campus.

The trial court instructed the jury at trial:

Before you can find the defendant guilty of burglary of a dwelling, the State must prove the following four elements beyond a reasonable doubt: Number one, Kenneth Jones entered or remained in a structure owned by or in the possession of Jacky Atiene. Two, Kenneth Jones did not have the permission or consent of Jacky Atiene or anyone authorized to act for him to enter the structure at the time. Three, at the time of entering or remaining in the structure, Kenneth Jones had a fully-formed conscious intent to commit the offense of theft in that structure. Four, the structure entered into or remained in was a dwélling.

In the State of Florida, burglary of a dwelling can be committed by either entering a dwelling without permission with the intent to commit a crime or by remaining in a dwelling, after consensual entry, with the intent to commit an offense. See Tinker v. State, 784 So.2d 1198, 1199 (Fla. 2d DCA 2001).

Including the “remaining in” language where the facts clearly demonstrate nonconsensual entry may be error. Whether such error is fundamental depends on the facts. See Roberson v. State, 841 So.2d 490 (Fla. 4th DCA 2003); see also Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002).

The Defendant did not object to the remaining in language at trial but contends on appeal that the inclusion of the language was fundamental error under the facts of this case. He argues that the remaining in instruction was error because the facts supported only nonconsensual entry. He further argues that this is fundamental error because the jury could have used the instruction to find that he entered the premises without criminal intent and formed it after remaining inside.

At trial, however, he took a different position. He took the consistent position that he never had any criminal intent and that he entered looking for Lisa or directions. He also, however, argued the following in closing argument:

What did we hear that you can use to apply to implied consent or expressed consent? All you have is Mr. Atiene saying the door is open. He, you know, didn’t say the door is open just for my friends to come in. He didn’t say the door is open for whoever knocked before they came in. He didn’t say that. He didn’t specify the individual that was allowed to come in. He said he left his door open because he didn’t want to get down from his bunk to open the door and go back and forth. People came in and out. Resident people who lived there were around, but there are other visitors around the halls. There are more people in the dorm rooms other than the residents. He said he left his door open, but he didn’t say no nonresidents aren’t allowed in. So it is reasonable for Mr. Jones to say it is okay to enter a door that was already open to merely ask for directions. That is something that you have to decide. If you find the State has failed to prove he did not have implied consent, you have to find Mr. Jones not guilty because that one element was not proven.

We hold that where the Defendant presented the argument that there was implied consent, it was not error to include the remaining in language. Under this record, the jury could have reached a guilty verdict whether the initial entry was consensual or nonconsensual.

Presuming that the jury accepted the Defendant’s implied consent argument, it could have concluded that the Defendant’s actions amounted to surreptitiously remaining inside. The jury could have reasoned that the Defendant formed an intent to steal after entering a seemingly empty, darkened dormitory room and closing the door behind him. This behavior clearly stepped beyond any implied consent. In the context of a dormitory building, the jury could have reasonably concluded that the Defendant’s act of shutting the open door was an attempt to conceal his presence which amounted to surreptitiously remaining inside.

Alternatively, the jury could have been persuaded by the State’s theory. The State argued that the Defendant came inside without consent looking for things to steal.

The use of the remaining in language cannot be fundamental error because either view of the evidence is consistent with the law and the jury instructions as given. Fundamental error is “error that 'reaches down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ A fundamental error is one that undermines the confidence in the trial outcome and goes to the very foundation of a case. Often, it is the equivalent of a denial of due process.” Mathew v. State, 837 So.2d 1167, 1170 (Fla. 4th DCA 2003). Having argued implied consensual entry to the jury, the Defendant cannot now convince us that the remaining in instruction was fundamental error because no view of the facts supported consensual entry. Therefore, we affirm the judgment below.

AFFIRMED.

GUNTHER and FARMER, JJ., concur.

HAZOURI, J., dissents with opinion.

HAZOURI, J.,

dissenting.

I respectfully dissent. The defendant appeals his conviction on the basis that the trial court erred in giving a jury instruction on burglary that allowed the jury to find the defendant guilty if he either entered or remained in a structure with the intent to commit the offense of theft in that structure. Although the defendant did not object to the instruction at trial, he now argues that the inclusion of the “remaining in” language constituted fundamental error. The majority holds that the instruction was not error because the jury could have determined that the defendant either entered the dorm room without consent or entered the room with implied consent and remained in surreptitiously. I respectfully disagree. There was no evidence in this case to support a finding that the defendant surreptitiously remained in the dorm room.

The Florida Supreme Court in Delgado v. State, 776 So.2d 233, 240 (Fla.2000), held that the most favorable interpretation of Florida’s burglary statute is to hold that the “remaining in” language applies only in situations where the remaining in was done surreptitiously. The Court clearly limited the “remaining in” language to situations where the suspect enters lawfully and subsequently secrets himself from the host. In the instant case, the defendant entered the room through an open door. At trial, the defendant alleged that the open door constituted implied consent. After entering the room, he closed the door behind him. When Atiene, the occupant of the dorm room, asked him what he was doing there the Defendant replied, “I’m looking for Lisa.” The majority reasons that this behavior could amount to surreptitiously remaining inside. I disagree. Surreptitiously remaining in has been interpreted as requiring some sort of concealment. See Johnekins v. State, 823 So.2d 253, 255-56 (Fla. 3d DCA 2002) (holding that the typical “remaining in” situation is where the perpetrator enters with consent, or enters premises that are open to the public, and then conceals himself on the premises with the intent to commit a crime therein). It is the concealment which makes the remaining in surreptitious. In the instant case, the defendant did not attempt to conceal himself. He did, however, make an allegedly false statement as his reason for entering the room, that he was “looking for Lisa.” Had the defendant gained entry to the room by falsely stating that he was “looking for Lisa,” then his entry would have been gained by fraud or trick. When consent to enter is obtained by trick or fraud there is no consent at all and Delgado does not apply. See Schrack v. State, 793 So.2d 1102 (Fla. 4th DCA 2001). These are not the facts of the instant case. In the instant case, the defendant entered the room with allegedly implied consent and while he may have lied while inside the room, his false statement does not amount to concealment or surreptitious remaining in. Therefore, the “remaining in” language in the jury instruction was error under Delgado.

The next question is whether it amounts to fundamental error. In Couzo v. State, 830 So.2d 177 (Fla. 4th DCA 2002), this Court held that whether fundamental error has occurred when the “remaining in” language has been included in a burglary instruction turns on the facts of each case. Id. at 180. It is not fundamental error if there is no evidence or plausible analysis under which the jury could have concluded that the defendant entered the premises without criminal intent and only formed criminal intent while remaining in the structure. In the instant case, the jury could have found that the defendant entered the premises without criminal intent and later formed the intent after viewing the music collection and other items in the dorm room. Therefore, under the facts of this case, the inclusion of the “remaining in” language constituted fundamental error.


author: KLEIN, J.

text:
    Mark P. ARZUMAN, a/k/a Mark P. Arzoumanian, a/k/a Mark P. Arzumanian, Appellant, v. Shamsah SAUD and Lawrence Bunin, as Personal Representative of the Estate of Prince Bandar Bin Saud Bin Saad Bin Abdulrahman Al-Saud, et al., Appellees.
    No. 4D02-1021.
    District Court of Appeal of Florida, Fourth District.
    April 9, 2003.

      Russell S. Bohn of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.
    Lawrence Bunin of Lawrence Bunin, P.A., Plantation, and Steven A. Feinman, Davie, for appellees.
   KLEIN, J.

Appellant Arzuman is engaged in litigation with the appellees arising out of a horse related business called Rainbow Jumpers, Inc. Based on his conflicting testimony in which he claimed to own shares of stock in the corporation, but also claimed that the corporation was owned entirely by appellee Saud, the trial court dismissed all of his claims with prejudice for committing perjury and fraud on the court. We reverse, concluding that this testimony was not intended to deceive the court but rather was the result of Arzu-man’s ignorance of corporate structure.

Arzuman is of Armenian descent, was raised in Saudi Arabia and Lebanon, and did not learn to speak English until he was twenty-five years old. Appellee Saud, who is apparently an absentee owner of Rainbow Jumpers, Inc., had a son known as Bin, who allegedly operated the business with Arzuman. Arzuman’s relationship with Bin began in Saudi Arabia in the early 1980’s, and they both came to the United States in the late 1980’s because of the war in Lebanon. After Bin died in a plane crash in 1998, Bin’s brother took over the operation of Rainbow Jumpers, Inc. and ousted Arzuman. This litigation is an attempt by Arzuman to enforce agreements he claims were made by Bin.

In his early pleadings Arzuman alleged that the corporation was owned and/or controlled by Saud and/or her son. Arzu-man filed an amended pleading, however, stating that he was the owner of all outstanding shares of the corporation, attaching a copy of a certificate for 100 shares of stock issued to Arzuman in 1992.

Before filing these pleadings, Arzuman had testified in an unemployment compensation hearing that his employer, Rainbow Jumpers, Inc., was owned entirely by Saud. Subsequently he testified in this case that he was the sole shareholder of Rainbow Jumpers, Inc. and that he knew of no other person who owned a share of stock in the corporation. A 1995 corporate tax return, signed by Arzuman, who was an officer, stated that Saud was the sole shareholder.

Arzuman testified that the 100 shares of stock were given to him to protect his interest in a prior partnership when the assets of that partnership were placed into Rainbow Jumpers, Inc. He did not know how many shares had been issued, how many Saud owned, or what percent his 100 shares represented. When asked the difference between a shareholder and an owner, Arzuman answered: “A owner owns the company, a shareholder owns shares. That’s what is in my way of relating.” He stated that, even though he owned shares in the company, he was “not the owner of the company,” and had never referred to himself as the owner.

The sole basis for the trial court’s finding that Arzuman had perpetrated a fraud on the court and committed perjury was the inconsistency between Arzuman’s testimony that he owned 100 shares of stock and his testimony that Saud was the sole owner of the corporation.

Because dismissal with prejudice for fraud on the court is such an extreme remedy, the fraud must be demonstrated by clear and convincing evidence. As the court explained in Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998):

The requisite fraud on the court occurs where “it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (1st Cir.1989). When reviewing a case for fraud, the court should “consider the proper mix of factors” and carefully balance a policy favoring adjudication on the merits with competing policies to maintain the integrity of the judicial system. Id. at 1117-18. Because “dismissal sounds the ‘death knell of the lawsuit,’ courts must reserve such strong medicine for instances where the defaulting party’s misconduct is correspondingly egregious.” Id. at 1118. The trial court has the inherent authority, within the exercise of sound judicial discretion, to dismiss an action when a plaintiff has perpetrated a fraud on the court, or where a party refuses to comply with court orders. Kornblum v. Schneider, 609 So.2d 138, 139 (Fla. 4th DCA 1992). Because dismissal is the most severe of all possible sanctions, however, it should be employed only in extreme circumstances. Id.; Bird v. Hardrives of Delray, Inc., 644 So.2d 89, 90 (Fla. 4th DCA 1994).

In the cases cited by appellees, in which the ultimate sanction has been upheld, claimants were attempting to conceal information by making statements under oath which were revealed to be false when the defendants uncovered the truth. In contrast, in this case Arzuman did not conceal. His belief that he could own 100 shares of stock at the same time that Saud was the sole owner of the corporation was always out in the open. His amended complaint contained allegations and referred to documents which referred to Ar-zuman as the sole shareholder and to Saud as the owner of the corporation. These statements do not reflect an attempt to perpetrate a fraud on the court, but rather demonstrate Arzuman’s lack of understanding of corporate structure. Dismissal with prejudice was therefore not warranted. Simmons v. Henderson, 745 So.2d 1031 (Fla. 2d DCA 1999)(reversing a dismissal for fraud on the court where plaintiffs misstatements were the result of confusion). Reversed.

POLEN, C.J., and HAZOURI, J„ concur.

      . See e.g. Cox; Hogan v. Dollar Rent A Car Sys., Inc., 783 So.2d 1211 (Fla. 4th DCA 2001); Desimone v. Old Dominion Ins. Co., 740 So.26d 1233 (Fla. 4th DCA 1999); Savino v. Fla. Drive In Theatre Mgmt., 697 So.2d 1011 (Fla. 4th DCA 1997); Morgan v. Campbell, 816 So.2d 251 (Fla. 2d DCA 2002); Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. 3d DCA 2001); Metropolitan Dade County v. Martinsen, 736 So.2d 794 (Fla. 3d DCA 1999); Stalvey v. Branton, 743 So.2d 633 (Fla. 5th DCA 1999).

      . Appellees attempt to support their position that the dismissal should be affirmed by relying on additional allegedly untrue testimony given by Arzuman on matters which may not have related to these claims, such as his marital status. The trial court, however, did not find that these statements constituted fraud or perjury. Even if they were false, they may not have been material. The crime of perjury by contradictory statements has, as an element, that the statements must be material. § 837.021(1), Fla. Stat. (2000). A dismissal of claims for fraud on the court should be limited to those claims to which the fraud pertained. Kornblum v. Schneider, 609 So.2d 138 (Fla. 4th DCA 1992).


author: NESBITT, Senior Judge.

text:
    Esperanza DE SAAD, f/u/b/o Joseph Beeler, P.A., Appellant, v. BANCO INDUSTRIAL DE VENEZUELA, C.A., Miami Agency, etc., et al., Appellees.
    No. 3D02-1340.
    District Court of Appeal of Florida, Third District.
    April 9, 2003.
    Hicks, Anderson & Kneale and Ralph O. Anderson and Gary A. Magnarini; William L. Petros, Miami, for appellant.
    Ruden, McClosky, Smith, Schuster & Russell and Lawrence A. Gordich and Brian T. James, for appellees.

      Before GODERICH and GREEN, JJ„ and NESBITT, Senior Judge.
   NESBITT, Senior Judge.

Esperanza de Saad, a former employee of BANCO INDUSTRIAL DE VENEZUELA, C.A., MIAMI AGENCY (“BIV Miami”), appeals from a judgment on the pleadings dismissing her statutory indemnification claim which, under Section 607.0850, Florida Statutes (2000), sought to recover the “actual and reasonable” expenses of her allegedly successful defense against ten money laundering charges and one conspiracy charge, after having been arrested during her employment with BIV Miami. On cross-motions for judgment on the pleadings, the trial court dismissed de Saad’s claim with prejudice, holding the statutory indemnification provision facially inapplicable to foreign corporations such as BIV Miami, and further holding that this inapplicability was not changed by the fact that BIV Miami is operating under a certificate of authority to transact business in Florida, pursuant to Section 607.1505, Florida Statutes (2000). We reverse.

Section 607.0850 applies to BIV Miami given the fact that it is qualified to do business in Florida and thus, pursuant to Section 607.1505(2), assumes the same liabilities imposed upon a domestic corporation. Section 607.1505(2), in pertinent part, states that a:

[Fjoreign corporation with a valid certificate of authority has the same but no greater rights and has the same but no greater privileges as, and, except as otherwise provided in this act is subject to the same duties, restrictions, penalties, and liabilities now or later imposed on, a domestic corporation of like character, (emphasis added).

The trial court’s ruling is in derogation of the plain language of Section 607.1505(2) which must be read in pari materia with Section 607.0850. Section 607.0850(3) provides:

To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or otherwise in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith, (emphasis added).

BIV Miami argues that since Chapter 607 defines “corporation” or “domestic corporation” as “a corporation for profit, which is not a foreign corporation,” the use of the term “corporation” in Section 607.0850(3) necessarily is limited to domestic corporations and is inapplicable to foreign corporations, even those with a certificate of authority under Section 607.1505. The bank’s argument simply ignores the language of § 607.1505(2) quoted above.

While there is no authority directly analyzing the applicability of Section 607.0850, Florida Statutes to a foreign corporation qualified to transact business in Florida, in Hollander v. Rosen, 555 So.2d 384 (Fla. 3d DCA 1989), rev. denied, 564 So.2d 488 (Fla.1990), we rejected an argument similar to the bank’s in holding that a statute allowing shareholders to inspect the books and records of a “corporation” was also applicable to foreign corporations which had applied, or were legally required to apply, for a certificate to transact business in Florida. In Hollander we stated:

Section 607.157, standing alone, applies only to Florida corporations. That is so because the definition of ‘corporation,’ as used in the Florida General Corporation Act, expressly excludes foreign corporations [statutory citation omitted]. The Act goes on to provide, however, that a foreign corporation, [statutory citation omitted] which has applied for authority to transact business in Florida ‘shall ... enjoy the same, but no greater, rights and privileges as a domestic corporation ... and, except as otherwise provided in this chapter, shall be subject to the same duties, restrictions, penalties, and liabilities now or hereafter imposed upon a domestic corporation of like character.’ [statutory citation omitted]. Thus a foreign corporation authorized to do business in Florida is subject to Florida’s statutory provisions respecting access to corporate books and records, and the statutory penalty is applicable should access be denied.

555 So.2d at 385. See also Padovano v. Wotitzky, 855 So.2d 871 (Fla. 2nd DCA 1978). Liability under the indemnification statute is a “liability ... imposed upon a domestic corporation,” just as the statutory duty to allow inspection of books and records was imposed in Hollander. The general definitions of “corporation” and “foreign corporation” are not at all inconsistent with Section 607.1505(2), which provides that a certain subset of “foreign corporations,” (those operating under a valid certificate of authority), are subject to the same liabilities imposed upon domestic corporations.

BIV Miami relies heavily on Legal Environmental Assistance Foundation v. Department of Environmental Protection, 702 So.2d 1352 (Fla. 1st DCA 1997) and National Rifle Ass’n v. Linotype, 591 So.2d 1021 (Fla. 3d DCA 1991) for the proposition that, because a foreign corporation is not treated identically like a domestic Florida corporation for all purposes, the dismissal of de Saad’s claim was proper. However, in those cases no statutory duty or liability imposed on a “corporation” was involved. Instead, Legal Environmental merely held that a certificate to transact business did not transform a foreign corporation into a “citizen” of Florida for purposes of a more specific statute requiring citizenship in order to intervene in certain administrative proceedings. 702 So.2d at 1353. Similarly, National Rifle held that, for purposes of a forum non conveniens analysis, a certificate to transact business did not automatically mean that a party had a Florida location. 591 So.2d at 1022. These cases are distinguishable from the instant situation in which Section 607.0850(3) clearly imposes a liability as contemplated by Section 607.1505(2).

The judgment on the pleadings dismissing de Saad’s statutory indemnification claim under Section 607.0850, Florida Statutes is reversed, and this matter is remanded for entry of judgment on the pleadings in de Saad’s favor on the limited basis that Section 607.0850, Florida Statutes is applicable to BIV Miami as a foreign corporation operating under a valid certificate of authority pursuant to Section 607.1505(2), Florida Statutes, and for further proceedings consistent herewith.

      . De Saad's employment with BIV Miami was pursuant to an employment contract which provided that the parties’ contract would be governed solely and exclusively by Florida law.

      . As a result of our holding, most of the issues raised in the Motion of Joseph Beeler, P.A. to Intervene in This Appeal and to Vacate the Circuit Court's Order That is The Subject of This Appeal, are moot. Joseph Beeler, P.A.'s right to intervene at the trial court level was determined in Joseph Beeler, P.A. v. Banco Industrial de Venezuela, 834 So.2d 952 (Fla. 3d DCA 2003). Beeler defended Ms. Be Saad on the underlying criminal charges, claims entitlement to in excess of one million dollars in attorney's fees and expenses, and, as part of their fee arrangement, Ms. De Saad assigned to Beeler any rights she may have to sue BIV Miami. While the relief requested by the Motion to Intervene is moot, we have restyled this matter to reflect Joseph Beeler, P.A.’s interest in Ms. De Saad’s claim against BIV Miami.


author: CASANUEVA, Judge.

text:
    Elaine DAHL, Appellant/Cross-Appellee, v. ECKERD FAMILY YOUTH ALTERNATIVES, INC., a Florida Corporation d/b/a Eckerd Youth Development Center, Appellee/Cross-Appellant.
    No. 2D02-1382.
    District Court of Appeal of Florida, Second District.
    April 16, 2003.
    Karen Coolman Amlong and Jennifer Daley of Amlong & Amlong, P.A., Fort Lauderdale, for AppellanVCross-Appellee.

      Steven G. Burton, David W. Adams, and Lisa Griffin Hodgdon of Broad & Cassel, Tampa, for Appellee/Cross-Appellant.
    Frederick W. Ford, West Palm Beach, for Amicus Curiae National Employment Lawyers Association, Florida Chapter.
   CASANUEVA, Judge.

Elaine Dahl, a psychologist who worked for Eckerd Youth Development Center (Eckerd), a private rehabilitative school for juvenile offenders, sued her employer in federal court, asserting violations of her First Amendment rights under 42 U.S.C. § 1983 and, pursuant to the federal district court’s supplemental jurisdiction, violations of Florida’s private-sector whistleblower act, sections 448.101-.105, Florida Statutes (1999). Ultimately the federal district court dismissed her complaint but clarified that the dismissal of the whistleblower claim was without prejudice, so Ms. Dahl refiled her lawsuit in state court. Upon a motion by Eckerd the circuit court dismissed her amended complaint, finding that Dahl’s exclusive remedy was Florida’s public-sector whistleblower act, sections 112.3187-.31895, Florida Statutes (1999). Because any action under the public-sector act was barred by the statute of limitations, the circuit court dismissed Ms. Dahl’s complaint with prejudice. Ms. Dahl now appeals from the dismissal of her complaint. Eckerd cross-appeals from that aspect of the circuit court’s order that failed to consider Eckerd’s defenses of sovereign immunity and statute of limitations. We hold that the circuit court erred as a matter of law in finding that Ms. Dahl could bring a complaint only under the public-sector act; accordingly, we reverse and remand for reinstatement of her complaint, and we affirm the cross-appeal.

According to the allegations of her amended complaint, Ms. Dahl worked as a clinical psychologist for Eckerd, a “level 8” juvenile treatment facility for minors adjudicated of committing felonies, including a substantial number who had committed sex offenses. The center is located in Okeechobee and is operated by Eckerd Family Youth Alternatives, Inc., pursuant to a contract with the Department of Juvenile Justice (originally the Department of Health and Rehabilitative Services). In her complaint Ms. Dahl alleged that, in the course of her employment, she witnessed or received reports from the children she treated of actions by her coworkers and supervisors that violated laws, rules, and regulations applicable to Eckerd. These included allegations that staff members were physically abusive to children, that they filed unfounded criminal charges against the juveniles as a means of discipline or punishment, that they failed to provide adequate treatment for the children, and that they allowed or encouraged the use of alcohol and illegal drugs by the youth at the facility.

Ms. Dahl refused to participate in these alleged wrongdoings and discussed her concerns with an investigator from the Florida Inspector General’s office, an agency charged with investigating allegations of abuses and mismanagement by state agencies and independent contractors with state agencies. Ms. Dahl also complained to her supervisors and coworkers. Eckerd suspended Ms. Dahl and fired her one week later, on November 28, 1997, alleging violations of confidentiality rules. Ms. Dahl, however, maintained that those reasons were simply pretextual and that Eckerd was retaliating for her whistle-blowing activities.

Ms. Dahl’s federal court complaint was filed within the two-year limitations period for the private-sector whistleblower statute, § 448.103(l)(a), but it would have been untimely under the public-sector act’s period of 180 days from the time the prohibited action (i.e., termination) was taken, § 112.3187(8)(c). When the federal district court dismissed her complaint, the two-year statute of limitations period under the private-sector act did not lapse because 28 U.S.C. § 1367(d) operated to toll the matter for thirty days so that she could timely file in state court.

The public-sector act specifically prevents independent contractors as well as agencies from taking retaliatory action against employees who report violations of law on the part of the agency or independent contractors of the agency. See § 112.3187(2). The private-sector act, however, prevents employers from taking retaliatory action against an employee who threatens to disclose or who discloses to an appropriate governmental agency any practices of the employer that are in violation of a law, rule, or regulation. See § 448.102(1). “Employer,” for the purposes of the private-sector act, “means any private individual, firm, partnership, institution, corporation, or association that employs ten or more persons.” § 448.101(3).

On its face Ms. Dahl’s complaint without question states a cause of action under the private-sector act. She was an employee — as that term is defined in section 448.101(2) — of Eckerd Family Youth Alternatives, Inc., a private company that employed more than ten persons. She complained to her supervisors and to state agencies investigating activities at the center about alleged violations of applicable rules, regulations, and laws on the part of her coworkers. After she reported her concerns, she was fired.

The only reason for finding that Ms. Dahl’s complaint does not state a cause of action under the private-sector act is that Eckerd was an independent contractor of a state agency and thus fell within the public-sector act. Nowhere, however, does the public-sector act provide that it is the exclusive remedy for employees of independent contractors of state agencies who are retaliated against for their whistleblowing activities. To the contrary, both of these statutes are remedial and should be broadly construed. The most important relationship they speak to is that between the employer and the employee; the fact that the employer might be an independent contractor of the state is incidental and does not exclude the employer’s actions from the private-sector whistleblower act. Both acts are designed for the protection of employees who “report or refuse to assist employees who violated laws enacted to protect the public.” Arrow Air, Inc. v. Walsh, 645 So.2d 422, 424 (Fla.1994). See also Golf Channel v. Jenkins, 752 So.2d 561, 562 (Fla.2000). And, as Ms. Dahl points out, both the public- and private-sector acts contain sections specifically stating that their provisions do “not diminish the rights, privileges, or remedies of an employee [or employer, in the case of the private-sector act] under any other law or rule or under any collective bargaining agreement or employment contract.” §§ 112.3187(11); 448.105.

Of some interest is a case from the Third District, Hutchison v. Prudential Insurance Co. of America, 645 So.2d 1047 (Fla. 3d DCA 1994), where the issue was whether a former insurance salesman for Prudential could file a public-sector whis-tleblower action against the insurance company after being fired for reporting alleged unfair trade practices to the Monroe County Sheriffs Department, which maintained a contract with the insurance company for payroll deduction of premiums. The Third District found that the insurance company was an independent contractor for purposes of the public-sector act, observing that “Prudential takes too narrow a view of the statute, which is a remedial one. See Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992). ‘[T]he statute should be construed liberally in favor of granting access to the remedy.’ Id.” Hutchison, 645 So.2d at 1049. Significantly, in conclusion, the court held as follows:

In the proceedings here, Prudential concedes that the facts set forth in the second amended complaint also suffice to state a good cause of action under the private sector whistle-blower’s act, §§ 448.101-448.105, Fla. Stat. (1991). Since there must be further proceedings, we direct that on remand plaintiff be given an opportunity to amend to plead an alternative claim under sections 448.101448.105.

Id. at 1050. Although the Hutchison case arises within a context different from Ms. Dahl’s, the fact that at least one court has recognized that retaliation for whistleblow-ing activities may come within the ambit of both the public- and private-sector acts is persuasive, particularly given the total lack of language in either act suggesting that the converse is true.

In conclusion, we hold that the fact that Eckerd is “subject to” the public whistle-blower act does not diminish Ms. Dahl’s right to take advantage of another remedial statute — the private whistleblower act.

In its cross-appeal Eckerd claims that because it was an independent contractor operating a juvenile facility for the Department of Juvenile Justice, it was therefore protected from suit by sovereign immunity. In support of its assertion Eckerd cites section 768.28(ll)(a), Florida Statutes (2001):

Providers or vendors, or any of their employees or agents, that have contractually agreed to act on behalf of the state as agents of the Department of Juvenile Justice to provide services to children in need of services, families in need of services, or juvenile offenders are, solely with respect to such services, agents of the state for purposes of this section while acting within the scope and pursuant to guidelines established in the contract or by rule.

This statute is part of section 768.28, which is titled “Waiver of sovereign immunity in tort actions.” Provided certain conditions are met, this statute provides Eckerd, its employees, and its agents with immunity from personal liability in tort under section 768.28(9)(a). However, it has no application in this context, because Ms. Dahl is exercising a right of action under statute; she is not suing in tort. As stated previously in this opinion, the relationship of Ms. Dahl’s employer to the Department of Juvenile Justice is not relevant in the context of her action under the private-sector whistleblower statute. Furthermore, if she had pursued an alternative remedy under the public-sector statute, there would be absolutely no question that sovereign immunity would not prevent maintenance of the suit.

Eckerd has also raised in its cross-appeal a theory that the Eleventh Amendment prohibited the federal court from applying the tolling provision of 28 U.S.C. § 1367(d) to Eckerd, which as an independent contractor of a state agency is allegedly vested with all of the defenses of the state. Even had this issue been preserved, which is not apparent from our record, we conclude that the Eleventh Amendment has no relevance to this matter. See Dorse v. Armstrong World Indus., Inc., 513 So.2d 1265, 1268 (Fla.1987) (holding that “an entity or business acting as an independent contractor of the government, and not as a true agent, logically cannot share in the full panorama of the government’s immunity”).

In accordance with the foregoing, we reverse the circuit court’s dismissal of Ms. Dahl’s amended complaint and remand for its reinstatement.

NORTHCUTT, J., and THREADGILL, and EDWARD F„ SENIOR JUDGE, Concur.


text:
    Lauri F. PARKER, individually, and as the natural guardian of Cassie Daniele Parker, Appellant, v. Steven J. SHULLMAN, as Personal Representative of the Estate of Barbara Katz Silberman, as Trustee of the Paul Silberman Marital Trust, and as Trustee of the Barbara Katz Silberman Trust, Appellee.
    No. 4D02-2639.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied May 14, 2003.
    William Jay Palmer of Shutts & Bowen LLP, Miami, for appellant.
    Richard A. Josepher, Peter J. Forman and Arin S. Miller of Tescher Gutter Chaves Josepher Rubin Ruffin & Forman, P.A., Boca Raton, for appellee.
   PER CURIAM.

The action before the trial court was the petition of Lauri F. Parker to remove Steven J. Shullman as the personal representative of her mother’s (Barbara Katz Sil-berman) estate and as trustee of her mother and stepfather’s trust. The trial court conducted a hearing which consisted of nine days of trial in which the petitioner and respondent each called approximately nine witnesses and introduced a combined total of one hundred twenty three documents. The trial court denied Lauri F. Parker’s petition to remove Steven J. Shullman as personal representative of her mother’s estate and as trustee of her mother and stepfather’s trust. We affirm.

The trial court in entering its final judgment on the removal of the personal representative and trustee went to great lengths to detail the acrimonious relationship that exists between Parker and Shullman. Furthermore, the trial court found that certain actions taken by Shullman were questionable and vindictive. The trial court’s reasoning can best be summed up quoting from paragraph 11 of the final judgment:

The decision before the court has to be whether the accumulation of “vindictive” decisions, or questionable decisions, or indecision, or deliberately made decisions, made by Steven Shullman as either personal representative or trustee, add up to sufficient evidence for this court to remove him as the trustee of the trusts and as the personal representative. The court finds they do not. The problem that Lauri Parker has is that her mother simply did not trust her to make intelligent financial decisions, that she implicitly trusted Steven Shull-man to make intelligent financial decisions on behalf of her daughter and her granddaughter, and this court has to follow the dictates of the grantor of the trust and the testator of the Will because she was obviously of sound mind when she made the decision to put Steven Shullman completely in control.

This court also views some of the actions taken by Shullman to be somewhat questionable and vindictive; however, we concur that these actions do not rise to the level to override the decision made by Barbara Katz Silberman as grantor of the trust and as testator of the will. We conclude that the trial comb did not abuse its discretion in denying the petition to remove Shullman.

AFFIRMED.

STONE, GROSS and HAZOURI, JJ., concur.


text:
    Marilyn TOBKIN, Appellant, v. Donald A. TOBKIN, Appellee.
    No. 4D02-4553.
    District Court of Appeal of Florida, Fourth District.
    April 16, 2003.
    Rehearing Denied May 19, 2003.
    Michael A. Hymowitz of Braverman and Rossi, Fort Lauderdale, for appellant.
    Donald A. Tobkin, Hollywood, pro se.
   PER CURIAM.

The wife has filed a petition for writ of certiorari concerning the trial court’s order that disqualified the Law Offices of Brav-erman and Rossi from representing her in this dissolution proceeding. She argues that the trial court deviated from the essential requirements of law in disqualifying her counsel and that she will suffer irreparable harm by being denied the right to have counsel of her choice. We agree and grant the petition.

The husband filed a motion for disqualification and alleged that Alan Braverman had served on a Florida Bar Seventeenth Judicial Circuit Grievance Committee that had reviewed a grievance against him. He further alleged that Mr. Braverman had been privy to unspecified confidential financial and psychological documentation during that proceeding, and that he had reviewed records and files belonging to the husband that had remained in the marital home. Mr. Braverman disputed all of the husband’s allegations and indicated that he had no knowledge or recollection of having reviewed any grievance against the husband. Mr. Braverman checked with the Florida Bar and found that the only grievance that had been filed against the husband had been dismissed.

The trial court granted the motion to disqualify. The court articulated the undisputed facts as follows:

There was a grievance proceeding. The wife’s attorney was on the committee. The husband was the subject matter of the investigation. The husband produced documents to the committee. A member of the committee now represents the wife.

The court trained the legal issue as whether a member of a grievance committee, who investigated a claim against an attorney, should be permitted to represent that attorney’s spouse in a dissolution proceeding. The court granted the motion and disqualified the firm.

“An order involving the disqualification of counsel must be tested against the standards imposed by [the] Rules of Professional Conduct.” City of Lauderdale Lakes v. Enter. Leasing Co., 654 So.2d 645, 646 (Fla. 4th DCA 1995). We find nothing in the rules that would require the disqualification of Mr. Braverman’s firm given the facts of this case. We have previously held that “the denial of the right to choose one’s own lawyer is deemed to cause irreparable harm....” Id. We therefore grant the writ and quash the order of disqualification.

STONE, FARMER and MAY, JJ., concur.


text:
    The STATE of Florida, Petitioner, v. Xavier RICHARDS, Respondent.
    No. 3D02-572.
    District Court of Appeal of Florida, Third District.
    April 23, 2003.

      Robert A. Butterworth, Attorney General, and Steven R. Berger, Assistant Attorney General, for petitioner.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for respondent.
    Before COPE and LEVY, JJ„ and NESBITT, Senior Judge.
   On Rehearing Denied

COPE, J.

On consideration of the respondent’s motion for rehearing, we withdraw the court’s previous opinion and substitute the following opinion.

The State petitions for a writ of certiora-ri, seeking to quash an order which limits the State’s ability to impeach State witness Shawanna Glenn. The petition challenges the trial court’s interpretation of Morton v. State, 689 So.2d 259 (Fla.1997), receded from in part on other grounds, Rodriguez v. State, 753 So.2d 29 (Fla.2000). We conclude that the petition is well taken and grant it.

I.

Defendant-respondent Xavier Richards is charged with the first degree murder of Floyd Williams. Ms. Glenn is the defendant’s girlfriend.

' The victim was still alive when the police arrived at the scene. He told the police that Ms. Glenn and the defendant had robbed him and the defendant shot him.

Ms. Glenn was interviewed shortly after the shooting. She initially denied any knowledge of the shooting. She stated that during the evening, she and the defendant had quarreled over the defendant’s losing his job. She and the defendant walked to a nearby club. The defendant stayed outside and Ms. Glenn went inside.

Ms. Glenn said that inside the club, she had drinks and played pool with the victim, Floyd Williams. After two hours, Ms. Glenn looked outside the club and saw that the defendant was no longer there. She and the victim then walked toward her house. A short distance from her house, she and the victim separated and she went home alone. The shooting of the victim took place shortly after that.

At the police station, a computer voice stress analyzer (CVSA) test was administered to Ms. Glenn. It showed that she was not being truthful. The detective told her this and told her he thought that she was covering up for the defendant.

Ms. Glenn then stated that the defendant had admitted to her that he shot the victim. She said this occurred in a cell phone call from the defendant shortly after the shooting, in which the defendant asked her to come pick him up but she refused to do so. Ms. Glenn’s cell phone records confirmed that she received several telephone calls from a pay telephone at the relevant time.

Ms. Glenn then gave the police a tape-recorded statement. This was played back for her and she acknowledged that the statement was correct.

Two months later, Ms. Glenn was interviewed by the new lead detective on the case. Ms. Glenn told the new detective that her statement was correct except for the part about receiving the incriminating phone call from the defendant. She maintained that she had been threatened by the original detective and had made up that part of the statement. She told the defendant’s counsel the same thing.

The defendant moved to suppress Ms. Glenn’s statement entirely. The defense contended that the original detective had threatened to charge Ms. Glenn with murder if she did not give a statement implicating the defendant. The trial court conducted an evidentiary hearing at which Ms. Glenn and both detectives testified. At the conclusion of the hearing the trial court found that Ms. Glenn’s statement was voluntary and denied the request to suppress it.

The defense then argued alternatively that under Morton, it would be impermissible for the State to ask Ms. Glenn at trial about the telephone call she had received from the defendant. Since she had recanted that part of her statement, the only reason to ask her about the recanted statement would be for purposes of impeachment. The defense contended that under Morton, it would be impermissible to place the contents of the defendant’s telephone call before the jury.

The trial court granted the motion, and the State has petitioned for a writ of cer-tiorari.

II.

The trial court and the parties acknowledge that Ms. Glenn is being called for legitimate forensic purposes by the State in this case. Ms. Glenn’s testimony places the defendant in proximity to Ms. Glenn and the victim throughout the evening of the crime. Her testimony also supplies a possible motive for the shooting.

She has, however, recanted the part of her statement where she said that the defendant called her and admitted shooting the victim. Under the Evidence Code, a party is allowed to impeach its own witness. § 90.608, Fla. Stat. (2001). Standing alone, this provision would allow the State to impeach Ms. Glenn with her prior inconsistent statement to the detective that the defendant admitted committing the murder.

The Florida Supreme Court through case law has placed a limitation on the ability of a party to impeach its own witness where, as here, there has been a recantation. Morton, 689 So.2d at 262-63. The Morton rule prohibits the calling of a witness if the sole or primary purpose is to impeach that witness. Id. at 263-64; Charles W. Ehrhardt, Florida Evidence § 608.2, at 459-61 (2002). The Morton court said:

Obviously, no single rule can be delineated to cover all of the circumstances under which parties will seek to impeach their own witnesses. Generally, however, if a party knowingly calls a witness for the primary purpose of introducing a prior statement which otherwise would be inadmissible, impeachment should ordinarily be excluded. On the other hand, a party may always impeach its witness if the witness gives affirmatively harmful testimony. In a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement. Of course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating. In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.

Morton, 689 So.2d at 264 (emphasis added). The Morton decision is based on federal authority on this issue. Id. at 262-64.

The principles applicable here have been summarized by McCormick on Evidence as follows:

There is some dispute whether and under what circumstances impeachment of one’s own witness is impermissible because of prejudice to the opposing party, particularly in criminal cases. It has been widely held that a criminal prosecutor may not employ a prior inconsistent statement to impeach a witness as a “mere subterfuge” or for the “primary purpose” of placing before the jury substantive evidence which is otherwise inadmissible. Application of the “mere subterfuge” or “primary purpose” doctrine focuses on the content of the witness’s testimony as a whole. If the witness’s testimony is useful to establish any fact of consequence significant in the contest of the litigation, the witness may be impeached by means of a prior inconsistent statement as to any other matter testified to. In the words of one commentator, the pivotal question is whether the “party [is] calling a witness with the reasonable expectation that the witness will testify [to] something helpful to the party’s case aside from the prior inconsistent statement.” While the power to attack the character of one’s own witness may often be of little value to the attacker, subject to the foregoing limitation, a rule against showing prior inconsistent statements of one’s own witness to aid in evaluating the witness’s testimony is a serious obstruction to the ascertainment of truth, even in criminal cases. A criminal defendant could even urge that forbidding him from attacking a defense witness is unconstitutional in particular instances.

1 McCormick on Evidence § 38, at 142^43 (John W. Strong ed., 5th ed.1999) (some emphasis in original; some emphasis added; footnotes omitted).

As applied in this case, the question is whether there is a legitimate forensic purpose for calling Ms. Glenn as a witness to testify at trial. The judge and the parties agree that there is such a purpose in this case, and that Ms. Glenn is not being called for the sole or primary purpose of putting impeachment evidence before the jury. Since that is so, Ms. Glenn falls within the general rule that “the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement.” Morton, 689 So.2d at 264.

The defense argues that the better solution to this problem is to forbid any reference to the recanted testimony where, as here, the recanted testimony can readily be separated from the rest of the same witness’s testimony. The defense points out that Maryland follows such ah approach. Bradley v. State, 333 Md. 593, 636 A.2d 999 (1994). The Maryland court acknowledged, however, that its approach represents the minority rule and, indeed, appears to be followed by Maryland alone. The majority rule is as stated in Morton and McCormick. Florida has aligned itself with the majority rule.

As stated in McCormick, where the witness’ current testimony was preceded by other, differing accounts, it advances the search for truth that the jury hear not only the witness’ current version of events but the earlier versions as well. It is inadvisable to allow a witness to edit his or her testimony by recanting parts of it before taking the stand, and then prohibiting questioning about the recantation.

III.

The State argues that Ms. Glenn’s original statement that the defendant’s telephone statement that he shot the victim should be admissible as a statement by Ms. Glenn “of identification of a person made after perceiving the person.” § 90.801(2)(c), Fla. Stat. (2001).

During Ms. Glenn’s original interview with the detective at the police station, the detective prepared a photo lineup containing the defendant and other men. At the conclusion of the tape-recorded interview, the following occurred:

Q: Okay, I’m gonna show you some pictures in a line-up, I showed you these same pictures earlier. It’s a line-up consisting of six black males, numbered one through six, do you recognize any of these black males, and if so, would you point out the number or call out the number and say who he is.
A: Number three, Xavier Richards.
Q: Okay, and that is the individual who’s your boyfriend named Zay? Is that a yes?
A: Yes.
Q: And he’s the individual who ah ... told you he shot Doc?
A: Yes.

App. 86.

The State points out that in general, identifications from a photp lineup are admissible as substantive evidence under paragraph 90.801(2)(c), Florida Statutes. See Ehrhardt, Florida Evidence § 801.9.

This provision frequently comes into play in criminal cases in which a witness has seen the perpetrator of a crime and later makes an identification from the photo lineup. The police officer who conducted the photo lineup may testify to the identification by the witness and this comes in as substantive evidence under paragraph 90.801(2)(c).

In this case, Ms. Glenn told the original detective at the police station that the defendant had telephoned her and admitted shooting the victim. Certainly “perceiving” a person under paragraph 90.801(2)(c) may occur through a voice identification. Thus, identifying a person as a telephone caller by voice identification would qualify as a statement of “identification of a person made after perceiving the person.” Id. Similarly, making a visual identification of the defendant in a photo lineup is a statement of “identification of a person made after perceiving the person.” Id.

What the State is trying to bring in through the detective, however, is Ms. Glenn’s statement to the detective that the defendant admitted shooting the victim. The substance of the defendant’s statement to Ms. Glenn goes beyond being a statement of identification for purposes of paragraph 90.801(2)(c). We therefore reject the State’s 90.801(2)(c) argument.

IV.

The defendant argues that even if the trial court was in error, this error is not of sufficient magnitude to justify the exercise of this court’s certiorari jurisdiction. We have carefully considered this argument, but are satisfied that the standard for certiorari has been met.

We find instructive the Florida Supreme Court’s opinion in Richardson v. State, 706 So.2d 1349 (Fla.1998). In that case, Richardson appealed his conviction for first degree murder of Carrie Lee. During the pendency of that case in the trial court, the trial court had entered an order precluding the State from introducing certain Williams Rule evidence regarding the murder of another victim, Kevin Floyd, on the previous day. Id. at 1357 (citing Williams v. State, 110 So.2d 654, 659-60 (Fla.1959)). The State sought review in the Fifth District Court of Appeal via a petition for writ of certiorari and a non-final state appeal. The Fifth District reversed in part and granted certiorari in part, ruling that four of the six excluded items should be admitted into evidence. 706 So.2d at 1357-58 & n. 19.

On appeal from his subsequent conviction, Richardson argued that the Fifth District had been without jurisdiction in the matter. Id. at 1357. Rejecting this contention, the Florida Supreme Court said:

Richardson argues that after the trial court found the State’s Williams Rule evidence regarding Kevin Floyd’s murder “irrelevant to prove any material issue and fact,” the State impermissibly sought an appeal to the Fifth District. We disagree since we have held that the State may seek certiorari in the district courts of appeal from pretrial orders in criminal cases, State v. Pettis, 520 So.2d 250, 253 (Fla.1988).
As has been noted, “interlocutory appeals in death cases rarely involve matters that district courts do not routinely consider.” Gerald Kogan & Robert Craig Waters, The Operation and Jurisdiction of the Florida Supreme Court, 18 Nova L.Rev. 1151, 1213 (1994). From that proposition, we venture that there can be no serious dispute that district courts of appeal routinely consider evidentiary issues. Furthermore, we have stated that:
The ability of the district courts of appeal to entertain state petitions for certiorari to review pretrial orders in criminal cases is important to the fair administration of criminal justice ... [since] there will be some circumstances in which the state is totally deprived of the right of appellate review of orders which effectively negate its ability to prosecute.
Pettis, 520 So.2d at 253.
After reviewing the Fifth District’s decision, we find that it fully comports with our reasoning in Pettis. In Pettis, we expressed concern that:
If a nonfinal order does not involve one of the subjects enumerated in Florida Rule of Appellate Procedure 9.140(c)(1), the state would not be able to correct an erroneous and highly prejudicial ruling. Under such circumstances, the state could only proceed to trial with its ability to present the case significantly impaired.
520 So.2d at 253. The excluded items were important circumstantial evidence that, if not presented at trial, might have significantly impaired the State’s prosecution of Richardson. Therefore, we conclude that the Fifth District properly heard the State’s appeal of the trial court’s exclusion of this evidence.

706 So.2d at 1357-58 (emphasis added).

Based on Richardson and the authorities cited therein, we conclude that the exercise of certiorari jurisdiction is appropriate here. Because the trial court order in this case was at odds with the terms of the Morton decision, a controlling decision of the Florida Supreme Court, it represented a departure from the essential requirements of law. Further, as recited in Richardson, the excluded matter is important evidence “that, if not presented at trial, might have significantly impaired the State’s prosecution of [the defendant].” 706 So.2d at 1358. Finally, since the State has no appellate remedy if there is an acquittal of the defendant, the State does not have an adequate remedy by way of appeal. See also State v. Brea, 530 So.2d 924, 926 (Fla.1988) (if order suppressing statements of acquitted co-conspirator could not be appealed under Florida Rule of Appellate Procedure 9.140(c)(1)(B), “the State would not be precluded from seeking common law certiorari review.”); State v. Bradford, 658 So.2d 572, 573-74 (Fla. 5th DCA 1995) (certiorari appropriate to review order excluding evidence which would rebut defendant’s explanation of how his fingerprints came to be in the murder victim’s car).

V.

For the reasons stated, we grant the petition for writ of certiorari, and quash the order now before us.

Petition granted.

      . The Morton decision adds the caveat that section 90.403 analysis is available in an appropriate case. ("In addressing these issues, trial judges must have broad discretion in determining whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice or confusion.” 689 So.2d at 264). No such issue has been raised here, and we express no view, one way or the other, on whether section 90.403 has any application to the proposed testimony in this case.

      . The defendant's statement to Ms. Glenn that he shot the victim is admissible against the defendant as an admission, if Ms. Glenn so testifies. § 90.803(18), Fla. Stat. (2001). Ms. Glenn's repeating of that statement to the detective is hearsay when testified to by the detective, unless admissible for impeachment purposes or under an applicable hearsay exception. See § 90.805, Fla. Stat.

      . In view of this revised opinion, the defendant’s motion for rehearing is denied.


text:
    Carvell CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4055.
    District Court of Appeal of Florida, First District.
    April 23, 2003.
    Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and James W. Rogers, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal of the judgment and sentences imposed upon the appellant is brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). The appellant pled guilty to a third-degree felony in one case, and admitted that the third-degree felony violated his existing community control in another case. Both cases were consolidated for the purposes of this appeal.

Upon our independent examination of the entire record, we agree that' no reversible error occurred in either case. We affirm both the appellant’s sentence as to the new law violation as well as the revocation of community control and the sentence imposed thereon. However, because the record does not contain a written order of revocation of community control, we remand to the trial court for entry of a written order of revocation. See Harvard v. State, 766 So.2d 1043, 1043 (Fla. 2d DCA 2000), citing Cornett v. State, 506 So.2d 88 (Fla. 2d DCA 1987), and Givens v. State, 666 So.2d 235 (Fla. 2d DCA 1995).

AFFIRMED.

KAHN, VAN NORTWICK and BROWNING, JJ. CONCUR.


text:
    Theron HOUSTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1321.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    James B. Gibson, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002).

GRIFFIN, PALMER and ORFINGER, JJ., concur.


text:
    Thomas BAUGHER, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1995.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    James B. Gibson, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Angela D. McCravy, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Myles v. State, 826 So.2d 1102 (Fla. 5th DCA 2002); M.N. v. State, 821 So.2d 1205 (Fla. 5th DCA 2002).

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


text:
    Richard W. ENTINGH, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3266.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    James B. Gibson, Public Defender, and A.S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Richard W. Entingh, Okeechobee, pro se.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

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


text:
    Leon Lee ILLIG, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4023.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    Leon Lee Illig, Clermont, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Denson v. State, 775 So.2d 288 (Fla.2000).

GRIFFIN, ORFINGER and MONACO, JJ., concur.


text:
    Charles SESLER, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-150.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.
    Charles Sesler, Lowell, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Stewart v. State, 840 So.2d 438 (Fla. 5th DCA 2003).

THOMPSON, C.J., and PLEUS and TORPY, JJ., concur.


text:
    Hayward Lee SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-1234.
    District Court of Appeal of Florida, Fifth District.
    April 29, 2003.

      Hayward L. Smith, Sneads, Pro se.
    No Appearance for Appellee.
   PER CURIAM.

See Alvarez v. State, 358 So.2d 10, 12 (Fla.1978).

AFFIRMED.

THOMPSON, C.J., ORFINGER, and TORPY, JJ., concur.


author: FULMER, Judge.

text:
    William F. GILBERT, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3610.
    District Court of Appeal of Florida, Second District.
    April 30, 2003.
   FULMER, Judge.

William F. Gilbert challenges the order of the trial court denying his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We reverse the trial court’s order and remand for further proceedings.

In his motion, Gilbert alleged that he was convicted of trafficking in cocaine and trafficking in methylenedioxy-methamphetamine. He further alleged that the three-year mandatory minimum terms of imprisonment imposed by the trial court pursuant to sections' 893.136(1)(b)(1)(a) and 893.135(1)(j)(2)(a), Florida Statutes (2000), are illegal based on our opinion in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA), review dismissed, 821 So.2d 802 (Fla.2002). A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record. See Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Taylor held that chapter 99-188, Laws of Florida, which provided for the imposition of mandatory minimum prison sentences for certain drug offenses, is unconstitutional because it violates the single subject rule of the Florida Constitution. In denying the motion, the trial court found: “As of April 29, 2002, the Florida Legislature cured the single subject rule violation by reenacting the provisions originally contained in Chapter 99-188. See Chapters 2002-208-2002-212, Laws of Florida. In so doing, the Florida Legislature provided for the retroactive application of each reenactment to July 1, 1999.” However, in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), this court has since held that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions.

Gilbert alleged that he committed the offenses of trafficking in cocaine and trafficking in methylenedioxymethamptheta-mine in November 2000, which is within the Taylor window. See Green, 839 So.2d at 750 n. 1. Therefore, Gilbert has presented a facially sufficient claim. See Sims, 838 So.2d 658.

We reverse the trial court’s order and remand for further consideration of Gilbert’s claim. If Gilbert is correct that the trial court imposed the mandatory minimum terms pursuant to sections 893.135(l)(b)(l)(a) and 893.135(l)(j)(2)(a) where the offenses were committed within the Taylor window, the trial court shall resentence him under the 1997 version of those statutes. See Green, 839 So.2d 748. We certify conflict with the Fourth and Fifth District cases with which we disagreed in Green.

Reversed and remanded with instructions.

WHATLEY and SALCINES, JJ., Concur.