author: SHAW, Judge.

text:
    Clarice VANN v. STATE of Alabama.
    CR-02-1070.
    Court of Criminal Appeals of Alabama.
    Sept. 26, 2003.

      John H. Wiley III, Birmingham, for appellant.
    William H. Pryor, Jr., atty. gen., and P. David Bjurberg, asst. atty. gen., for appel-lee.
   SHAW, Judge.

The appellant, Clarice Vann, was convicted of trafficking in heroin and of the unlawful distribution of heroin, violations of §§ 13A-12-231(3)(a) and 13A-12-211, Ala.Code 1975, respectively. She was sentenced, as a habitual offender with five prior felony convictions, to life imprisonment for the trafficking conviction and to 20 years’ imprisonment for the distribution conviction. The 20-year sentence was enhanced by an additional 10 years’ imprisonment pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. The sentences for each conviction were to run concurrently.

Because Vann does not challenge the sufficiency of the evidence, only a brief recitation of the facts is necessary. The evidence adduced at trial indicated that on December 8, 2000, Vann sold 3.92 grams of heroin to an undercover police officer; that on December 20, 2000, she sold 6.602 grams of heroin to that same undercover officer; and that when she was arrested on March 6, 2001, she was in possession of .14 grams of cocaine.

i.

Vann first contends that the trial court erred in denying her motion for a mistrial on the ground that a prospective juror made a statement prejudicial to Vann in the presence of the entire venire during the voir dire examination. Specifically, in her brief, Vann states:

“[Ajbsent some discussion with the other potential jurors going to the effect [the prospective juror’s] statement had upon their impartiality and indifference to [Vann] and/or some curative instruction to the jury, [Vann] was greatly prejudiced by the comment being made and it was reversible error for the trial court not to have declared a mistrial.”

(Vann’s brief at pp. 6-7.)

During a break in voir dire, the trial court was about to excuse the venire for a 20-minute recess to take up matters with the prosecutor and defense counsel when one of the prospective jurors asked to speak. The following exchange then occurred:

“[Prospective juror]: Yes. It’s kind of a question but it’s more of a statement. When this gentleman [defense counsel] began to speak and he was repeating what this gentleman [the prosecutor] said about circumstantial evidence as opposed to civil and criminal cases, it is my opinion that he intentionally tricked us to raise our hands to make us believe something. Now I’m prejudiced towards you and I won’t ever believe anything that you say.
“THE COURT: Well, it is somewhat—
“[Defense counsel]: You don’t have to worry about it. I’m going to strike you.
“[Prospective juror]: I just think that he needed to know that before—
“THE COURT: Let me say this for everyone’s benefit. No matter what the lawyers say, they are not the source of the law in this case.
“[Prospective juror]: I understand that.
“THE COURT: I am the source of the law and I will explain the law that applies to this case to whatever jury is selected. I appreciate you letting us know your feelings because I’m sure—
“[Defense counsel]: I really am.”

(R. 50-51.) The venire was then excused and the following exchange occurred:

“[Defense counsel]: My position is he’s contaminated the whole jury pool. He was still talking to them, quote ‘bitching’ as he left the courtroom. I think that there is no way now because of his statement and his continued talking to jurors that we can get a fair and impartial trial.
“THE COURT: [Prosecutor],
“[Prosecutor]: Like you said, Judge, it’s a trick question.
“THE COURT: Well, it was a trick question.
“[Defense counsel]: I don’t see that there was anything wrong with it.
“THE COURT: I’m not suggesting there was anything wrong with it, but it was somewhat of a trick question.
“[Prosecutor]: I think you can give a curative instruction.
“THE COURT: I don’t see the manifest necessity to declare a mistrial. In fact, if anything I think it might be illustrative of what I was talking about when I told them I would be the source of the law; it didn’t matter what the lawyers say.
“I’m going to overrule your motion for a mistrial based on what he said, although I think he probably would have been better off not saying it, but he said it. I think the jury got a big chuckle out of it. I really don’t think that he’s — and I’ll cover — when I go back out there, I’m going to ask the jury if anyone was prejudiced by what he said.
“[Defense counsel]: Or my question.
“THE COURT: Or your question, for that matter. I think that’s a reasonable request. If anyone does feel like it prejudices them, then we will deal with that when it happens. I’ll go over [it] with them, before you strike, that issue when we reassemble.
“I was afraid he would say more if I didn’t cut him off, and I didn’t want him to say any more than he’d already said. Of course, you didn’t help either by your comment, [defense counsel], by telling him, don’t worry you were going to strike him. So that didn’t help matters either.
“Both of you had your say, and I will have mine in a moment. I hear you and I overrule you unless I get some indication from some of the jurors that they can’t put all of that aside and, you know, move on with this case.”

(R. 51-53.)

The trial court then granted Vann’s challenge for cause for the prospective juror who had made the comment. After hearing arguments from the parties about challenging other prospective jurors for cause on other grounds, the trial court and counsel engaged in the following exchange:

“THE COURT: Gentlemen, before you leave, one more thing, I’m about to change my mind about bringing up what [the prospective juror] said. I’m not sure it won’t exacerbate the situation more than it is now. If I do, I’ve got to go out and say to the jury, will any of you be prejudiced by what [the prospective- juror] said in open court? Let’s assume we get some hands, well, I guess if we got some hands they’d be due to be gone. I don’t know. What — do you want me to do it or not?
“[Prosecutor]: I’ll leave it up to you, Judge.
“THE COURT: What do you want to do, [defense counsel]?
“[Defense counsel]: Same thing, leave it up to you.
“THE COURT: You are not objecting if I don’t do it?
“[Defense counsel]: No, sir.
“THE COURT: You don’t think it’s necessary?
“[Defense counsel]: Don’t think so.”

(R. 57-58.)(Emphasis added.) The trial court then stated that it would not question the jury about the matter.

In Moody v. State, [Ms. CR-96-0994, April 18, 2003] — So.2d-(Ala.Crim. App.2003), this Court stated:

“ ““ “A party cannot assume inconsistent positions in the trial and appellate courts and, as a general rule, will not be permitted to allege an error in the trial court proceedings which was invited by him or was a natural consequence of his own actions.” ’ ” Slaton v. State, 680 So.2d 879, 900 (Ala.Cr.App.1995), aff'd, 680 So.2d 909 (Ala.1996), cert. denied, 519 U.S. 1079, 117 S.Ct. 742, 136 L.Ed.2d 680 (1997), quoting Campbell v. State, 570 So.2d 1276, 1282 (Ala.Cr.App.1990). As we have said in applying the invited error doctrine, “ ‘It would be a sad commentary upon the vitality of the judicial process if an accused could render it impotent by his own choice.’ ” Murrell v. State, 377 So.2d 1102, 1105 (Ala.Cr.App.), cert. denied, 377 So.2d 1108 (Ala.1979), quoting Aldridge v. State, 278 Ala. 470, 474, 179 So.2d 51, 54 (1965)....
“Burgess v. State, 811 So.2d 557, 596 (Ala.Crim.App.1998), aff'd in part, rev’d in part on other grounds, 811 So.2d 617 (Ala.2000)

— So.2d at —. See also Lewis v. State, 488 So.2d 1362, 1367 n. 7 (Ala.Crim.App.1986)(“The doctrine of invited error would apply to instances where defense counsel does everything he can to ‘invite the error,’ but then makes no request for curative instructions after an objection has been overruled or a motion denied.”).

When the trial court initially denied Vann’s motion for a mistrial, it stated that it was going to question the prospective jurors about the comment. When the trial court later stated that it had decided not to question the prospective jurors, Vann’s counsel agreed with the court that such questioning was unnecessary and specifically stated that he was not objecting to the trial court’s not questioning the prospective jurors about the impact of the statement. To now argue that the trial court should have granted the motion for a mistrial because “there was no discussion with the other potential jurors going to the effect [the prospective juror’s] statement had upon their impartiality and indifference to [Vann] and/or some curative instruction to the jury” (Vann’s brief at pp. 6-7), is inconsistent with Vann’s position at trial and amounts to invited error. See, e.g., Hulsey v. State, 866 So.2d 1180 (Ala.Crim.App.2003)(any error in trial court’s denying defendant’s motion for a mistrial and in allowing a juror who had overheard a portion of a conversation between the parties regarding a possible plea agreement to remain on the jury was invited by the appellant where the appellant refused the trial court’s offer to remove the juror instead of granting a mistrial).

II.

Vann also contends that the trial court erred in denying her motion for a mistrial based on what she claims was the trial court’s improper bolstering of a State’s witness.

During its case-in-chief, the State called Andrea Headrick, a drug chemist with the Alabama Department of Forensic Sciences, to testify. Vann stipulated that Headrick was an expert in her field, and the State then began to question Headrick about the procedures she had followed in conducting her analysis of the substances in the present cases, pursuant to which she determined the substances were heroin. Vann interrupted, stating that she would “stipulate to the results without her having to go through the process.” (It. 194.) The trial court then stated: “Well, okay, if you wish to accept that stipulation. Since she’s here, you might let her go ahead, though, and go through what she did in this one case so that the jury understands all that.” (R. 194-95.) The State then questioned Headrick about the tests that she had performed and the results of her analysis. Vann did not object to the court’s statement or move for a mistrial until the following day, after the State had rested and the defense had presented its case. At that point Vann made the following motion for a mistrial:

“Second motion for a mistrial is the thing that took place when the forensic scientist was testifying. I stipulated to the chain of evidence, the [district attorney] agreed, the Court agreed, and that was stipulated to the jury. The forensic scientist started to testify as to the result of the test, and I said I would stipulate to the results of the test. The district attorney said all the more better or something to that effect. And the Court’s statement was, ‘You accept that stipulation? You might want to, since she’s here, let the jury go ahead and hear how she did it.’ Or something to that effect. And I would submit with all due respect to the Court, I don’t think it was done intentionally, that might cast the Court in the eyes of the jury as taking part in the prosecution or favoring the prosecution since it could be viewed as telling the prosecutor how the Court would try the case if they were in the prosecutor’s shoes and they shouldn’t accept that stipulation and should let the witness continue to testify, especially when that was the defense strategy to move on through that type of testimony as quickly as possible to diminish the effect of it and get it over with as quickly as possible.”

(R. 252-53.) The trial court denied the motion.

Vann’s motion for a mistrial was not timely; thus, it did not preserve this issue for review. “ ‘To be timely, a motion for a mistrial must be made “immediately after the question or questions are asked that are the grounds made the basis of the motion for the mistrial.” ’ ” Allen v. State, 659 So.2d 135, 144 (Ala.Crim.App.1994), quoting Powell v. State, 631 So.2d 289, 292 n. 2 (Ala.Crim.App.1993), quoting in turn Ex parte Marek, 556 So.2d 375, 379 (Ala.1989). “A motion for a mistrial compensates for a lack of an objection only if the motion follows immediately after the grounds which are the bases for the motion.” Living v. State, 796 So.2d 1121, 1140 (Ala.Crim.App.2000). See also Wilson v. State, 651 So.2d 1119, 1122 (Ala.Crim.App.1994)(a motion for a mistrial “is untimely if it is not made until the conclusion of the witness’s testimony or counsel’s argument”). Because Vann’s motion for a mistrial was not timely, this issue is not properly before this Court for review.

III.

For the reasons stated above, we affirm Vann’s convictions for trafficking in heroin and for the unlawful distribution of heroin. However, we must remand this case for resentencing. “Matters concerning unauthorized sentences are jurisdictional,” Hunt v. State, 659 So.2d 998, 999 (Ala.Crim.App.1994), and we may take notice of an illegal sentence at any time. See, e.g., Pender v. State, 740 So.2d 482 (Ala.Crim.App.1999).

The record reflects that as part of its verdicts, the jury found that both the trafficking charge and the distribution charge were based on sales that occurred within three miles of a school and within three miles of a public housing project, see §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. The trial court properly applied the enhancements in §§ 13A-12-250 and 13A-12-270, Ala.Code 1975, to Vann’s sentence for the distribution conviction; however, the trial court failed to apply those enhancements to Vann’s sentence for her trafficking conviction.

“The law clearly requires that, when an unlawful sale of a controlled substance occurs within three miles of a school or public housing project, application of the aforementioned enhancement provisions is mandatory.” Wild v. State, 761 So.2d 261, 264 (Ala.Crim.App.1999). See also Bonner v. State, 835 So.2d 284 (Ala.Crim.App.2000); Gamble v. State, 699 So.2d 978, 980 (Ala.Crim.App.1997); and Ford v. State, 645 So.2d 317, 319 (Ala.Crim.App.1994). Because the jury expressly found that the sale underpinning the trafficking conviction occurred within three miles of a school and within three miles of a public housing project, the trial court was required to apply the enhancements in §§ 13A-12-250 and 13A-12-270 to Vann’s life sentence for the trafficking-conviction.

In addition, we note that § 36-18-6 creates the Alabama Forensic Services Trust Fund and that § 36-18-7(a), Ala.Code 1975, mandates that “there shall be imposed or assessed an additional fee of one hundred dollars ($100) on any conviction in any court of the state for drug possession, drug sale, drug trafficking, and drug paraphernalia offense[s] as defined in Sections 13A-12-211 to 13A-12-260, inclusive,” to be deposited (less administrative costs) in the Alabama Forensic Services Trust Fund. The record reflects that the trial court did not impose this fine for either the trafficking conviction or the distribution conviction.

Therefore, based on the foregoing, we remand this case for the trial court (1) to impose the $100 fine pursuant to the Alabama Forensic Services Trust Fund for both of Vann’s convictions, and (2) to enhance Vann’s life sentence for the trafficking convictions by an additional 10 years’ imprisonment pursuant to §§ 13A-12-250 and 13A-12-270, Ala.Code 1975. Because imposition of the fine and the application of §§ 13A-12-250 and 13A-12-270, Ala. Code 1975, are mandatory, Vann’s presence is not required. See, e.g., Spooney v. State, 844 So.2d 615, 618 (Ala.Crim.App. 2001). Due return shall be filed with this Court no later than 35 days from the date of this opinion.

AFFIRMED AS TO CONVICTIONS; REMANDED WITH DIRECTIONS AS TO SENTENCING.

McMILLAN, P.J., and COBB, BASCHAB, and WISE, JJ„ concur.

      . Vann was also convicted in the same trial of the unlawful possession of cocaine, a violation of § 13A-12-212, Ala.Code 1975, and was sentenced to 15 years' imprisonment, that sentence to run concurrently with the sen-er, Vann’s notice of appeal did not include the case number — CC-01-3550—relating to the possession conviction. Therefore, we address Vann’s claims only as they relate to her convictions for trafficking and distribution.

      . Additionally, we note that immediately before the court’s oral charge to the jury, the following exchange occurred:
      "[Defense counsel]: Yes, sir. Your Hon- or, we would make a motion for mistrial.... [A]t the beginning I should have made it but I do make it now, the situation involving [the prospective juror] who as reflected in the record got quite hostile with me and continued to talk in an angry tone as the jury went outside the door. I submit to the Court that that could have contaminated the jury and would just ask for a mistrial on that ground.
      "THE COURT: Well, I thought we had discussed that in my chambers on the record at the time it occurred.
      "[Defense counsel]: We did.
      "THE COURT: I denied the motion at the time.
      "[Defense counsel]: Yes, sir. I just felt like it was my duty to my client.
      "THE COURT: Sure, I understand. I hear you and overrule the motion."
      (R. 251-52.) To the extent Vann might contend that this later motion for a mistrial placed the trial court on notice of her claim on appeal, this motion was untimely and, thus, did not preserve the claim for appellate review. (See Part II of this opinion discussing the timeliness of motions for a mistrial.)

      . Because life imprisonment is the minimum sentence Vann could receive for the trafficking conviction, see §§ 13A-12-231(12) and 13A-5-9(c)(3), Ala.Code 1975, the trial court may not change that base sentence.

       Note from the reporter of decisions: On November 14, 2003, on return to remand, the Court of Criminal Appeals affirmed, without opinion.


source: Caselaw Access Project

author: PER CURIAM. WELLS, J., BELL, J.,

license: Public Domain

text:
    ADVISORY OPINION TO the ATTORNEY GENERAL RE AUTHORIZES MIAMI-DADE AND BROWARD COUNTY VOTERS TO APPROVE SLOT MACHINES IN PARIMUTUEL FACILITIES.
    No. SC03-857.
    Supreme Court of Florida.
    May 13, 2004.
    Stephen H. Grimes and Susan L. Kelsey of Holland & Knight LLP, Tallahassee, FL; and John M. Hogan, Miami, FL; Ronald L. Book, Aventura, FL; and Alan S. Becker and Alan B. Koslow of Becker & Poliakoff, P.A., Ft. Lauderdale, FL, for Floridians for a Level Playing Field, Petitioner.
    Mark Herron and Thomas M. Findley of Messer, Caparello & Self, P.A., Tallahassee, FL, for American Society for the Prevention of Cruelty to Animals, Grey2K USA, The Humane Society of the United States, and No Casinos, Inc., Opponents.
   PER CURIAM.

The Attorney General has requested that this Court review a proposed amendment to the Florida Constitution that would permit two Florida counties to hold referenda on whether to permit slot machines in certain parimutuel facilities. We have jurisdiction. See art. IV, § 10; art. V, § 3(b)(10), Fla. Const. For the reasons explained below, we approve the amendment and the ballot title and summary for placement on the ballot.

I. THE PROPOSED AMENDMENT AND BALLOT SUMMARY

The proposed amendment provides as follows:

Article X, Florida Constitution, is hereby amended to add the following as section 19:
SECTION 19. SLOT MACHINES—
(a) After voter approval of this constitutional amendment, the governing bodies of Miami-Dade and Broward Counties each may hold a county-wide referendum in their respective counties on whether to authorize slot machines within existing, licensed parimutuel facilities (thoroughbred and harness racing, greyhound racing, and jai-alai) that have conducted live racing or games in that county during each of the last two calendar years before the effective date of this amendment. If the voters of such county approve the referendum question by majority vote, slot machines shall be authorized in such parimutuel facilities. If the voters of such county by majority vote disapprove the referendum question, slot machines shall not be so authorized, and the question shall not be presented in another referendum in that county for at least two years.
(b) In the next regular Legislative session occurring after voter approval of this constitutional amendment, the Legislature shall adopt legislation implementing this section and having an effective date no later than July 1 of the year following voter approval of this amendment. Such legislation shall authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines. The Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.
(c) If any part of this section is held invalid for any reason, the remaining portion or portions shall be severed from the invalid portion and given the fullest possible force and effect.
(d) This amendment shall become effective when approved by vote of the electors of the state.

The ballot title of the proposed amendment is “Authorizes Miami-Dade and Broward County Voters to Approve Slot Machines in Parimutuel Facilities.” The ballot summary provides as follows:

Authorizes Miami-Dade and Broward Counties to hold referenda on whether to authorize slot machines in existing, licensed parimutuel facilities (thoroughbred and harness racing, greyhound racing, and jai alai) that have conducted live racing or games in that county during each of the last two calendar years before effective date of this amendment. The Legislature may tax: slot machine revenues, and any such taxes must supplement public education funding statewide. Requires implementing legislation.

II. STANDARD AND SCOPE OF REVIEW

Our review of the validity of an amendment to the Florida Constitution proposed by initiative for placement on the ballot is limited to two issues: (1) whether the proposed amendment satisfies the single-subject limitation of article XI, section 3 of the Florida Constitution, and (2) whether the ballot title and summary satisfy the requirements of section 101.161(1), Florida Statutes (2003). Advisory Op. to the Att’y Gen. re Fish & Wildlife Conservation Comm’n, 705 So.2d 1351, 1353 (Fla.1998). “The Court must act with extreme care, caution, and restraint before it removes a constitutional amendment from the vote of the people,” and thus must approve an initiative unless it is clearly and conclusively defective. Askew v. Firestone, 421 So.2d 151, 154, 156 (Fla.1982); see also Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 963 (Fla.2002) (stating that if the initiative meets constitutional requirements, “then the sponsor of an initiative has the right to place the initiative on the ballot”). Finally, the Court does not review the merits or the wisdom of the proposed amendment. Advisory Op. to the Att’y Gen. re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 565 (Fla.1998).

III. THE SINGLE-SUBJECT REQUIREMENT

Article XI, section 3 of the Florida Constitution requires that an amendment proposed by initiative “shall embrace but one subject and matter directly connected therewith.” This single-subject requirement “allow[s] the citizens to vote on singular changes in our government that are identified in the proposal and to avoid voters having to accept part of a proposal which they oppose in order to obtain a change which they support.” Fine v. Firestone, 448 So.2d 984, 993 (Fla.1984). Additionally, it “prevents] a single constitutional amendment from substantially altering or performing the functions of multiple aspects of government.” Advisory Op. to the Att’y Gen. re Florida Transp. Initiative for Statewide High Speed Monorail, Fixed Guideway or Magnetic Levitation Sys., 769 So.2d 367, 369 (Fla.2000). In determining compliance with the single-subject requirement, this Court examines the amendment to determine whether it evinces a “logical and natural oneness of purpose.” Fine, 448 So.2d at 990 (citing City of Coral Gables v. Gray, 154 Fla. 881, 19 So.2d 318, 320 (1944), and stating that “in determining whether a proposal addresses a single subject the test is whether it ‘may be logically viewed as having a natural relation and connection as component parts or aspects of a single dominant plan or scheme’ ” and that “ ‘[ujnity of object and plan is the universal test’ ”).

The opponents to the proposed amendment contend that the proposed amendment violates the single-subject requirement in two ways: (A) it “logrolls” together authorizing slot machines and allocating any taxes on them to support education; and (B) it amends without notice the present lottery provisions of the Florida Constitution. We address each argument in turn.

A. Does the Amendment Logroll the Authorization of Slot Machines and Taxes on Them?

The opponents first argue that the amendment “logrolls” together two separate and unrelated purposes: authorizing slot machines and allocating any taxes on them to support education. The claim is based on the proposed amendment’s provision that “[t]he Legislature may tax slot machine revenues, and any such taxes must supplement public education funding statewide.” As the proponent responds, however, this Court previously has held that such a provision does not violate the single-subject requirement.

In Floridians Against Casino Takeover v. Let’s Help Florida, 363 So.2d 337, 338 (Fla.1978), this Court reviewed an initiative intended to permit the operation of casinos in a limited area of the State. The amendment provided that taxes on such casinos “shall be collected by the State and appropriated ... for the support and maintenance of the free public schools and local law enforcement.” We rejected the argument that this provision violated the single-subject requirement:

Just as the Court in Weber[v. Smathers, 338 So.2d 819 (Fla.1976) ] concluded that financial disclosure and loss of pension are elements within the ambit of a single subject — ethics in government— so is the generation and collection of taxes, and the distribution thereof, part and parcel of the single subject of legalized casino gambling.

363 So.2d at 340. Although we subsequently receded from Floridians Against Casino Takeover on another ground in Fine, 448 So.2d at 988, we did not recede from the single-subject holding. In fact, we later reaffirmed it in Carroll v. Firestone, 497 So.2d 1204 (Fla.1986). In Car-rol, we reviewed an initiative authorizing the State to operate lotteries and providing that “[n]et proceeds derived from the lotteries shall be deposited to a state trust fund, to be designated The State Education Lotteries Trust Fund, to be appropriated by the Legislature.” See art. X, § 15, Fla. Const. (authorizing state-operated lotteries). We held that the amendment did not violate the requirement of “one subject and matter directly connected therewith,” finding “no essential distinction” between that amendment and the one we approved in Floridians Against Casino Takeover. Carroll, 497 So.2d at 1206.

Finally, last year we considered a similar proposed amendment to authorize slot machines. Advisory Op. to the Att’y Gen. re Authorization for County Voters to Approve or Disapprove Slot Machines within Existing Pari-Mutuel Facilities, 813 So.2d 98 (Fla.2002). That initiative provided that the “legislature, by general law, shall appropriate tax revenue derived from slot machines to enhance senior citizen services, classroom construction, education programs, and teachers’ salaries and benefits.” Id. at 99. Although we disapproved the proposed amendment for inclusion on the ballot, in addressing this tax allocation provision we opined that “[t]he fact that the proposed initiative includes both local authorization to approve slot machines and a mandate that such slot machines be licensed and taxed for a particular purpose is not problematic.” Id. at 101.

In light of this unwavering line of decisions from this Court on this issue, we hold that the tax allocation provision in the proposed amendment before this Court does not violate the single-subject requirement.

B. Does the Amendment Amend Without Notice the Current Lottery Provisions of the Florida Constitution?

The opponents next contend that the proposed amendment violates the single-subject requirement because it addresses local authorization of slot machines and amends — without notice of this effect — the present lottery provisions of the Florida Constitution. Two constitutional provisions apply to our analysis. Article X, section 7 prohibits lotteries other than those already authorized by law at the time the constitution became effective. It provides: “Lotteries, other than the types of pari-mutuel pools authorized by law as of the effective date of this constitution, are hereby prohibited in this state.” Art. X, § 7, Fla. Const. Article X, section 15, on the other hand, permits the State to operate lotteries. It provides as follows:

(a) Lotteries may be operated by the state.
(b) If any subsection or subsections of the amendment to the Florida Constitution are held unconstitutional for containing more than one subject, this amendment shall be limited to subsection (a) above.
(c)This amendment shall be implemented as follows:
(1) Schedule — On the effective date of this amendment, the lotteries shall be known as the Florida Education Lotteries. Net proceeds derived from the lotteries shall be deposited to a state trust fund, to be designated The State Education Lotteries Trust Fund, to be appropriated by the Legislature. The schedule may be amended by general law.

The crux of the opponents’ argument is that slot machines constitute a form of lottery. Therefore, the proposed amendment would amend these lottery provisions by conferring on two counties the power to establish lotteries. We disagree.

We have long since settled the question of whether slot machines constitute lotteries. In Lee v. City of Miami, 121 Fla. 93, 163 So. 486, 490 (1935), we addressed the question of whether certain legislatively described gambling machines, such as slot machines, constituted lotteries prohibited by the state constitution. We concluded they did not. We noted that the “Legislature recognized the distinction between lotteries and other species of gambling” and had never defined “lottery” “to include other forms of gambling.” Id. We then concluded the “primary test” for a lottery prohibited by the constitution “was whether or not the vice of it infected the whole community or country, rather than individual units of it.” Id. We reaffirmed Lee in a case in which the defendant, who kept a slot machine in his business, was charged with the crime of conducting a lottery. See Hardison v. Coleman, 121 Fla. 892, 164 So. 520, 521-22 (1935). Reiterating that a slot machine is not a lottery, we stressed that “[i]t may be true that every lottery is a game or gambling device, but it does not follow that every game or gambling device is a lottery within the meaning of’ the constitutional prohibition of lotteries. Id. at 522. Further, the Florida Statutes continue to differentiate the two. See § 849.09, Fla. Stat. (2003) (prohibiting “persons” from conducting or promoting lotteries); id. § 849.15 (prohibiting ownership or use of slot machines); id. § 849.16(1) (defining “slot machine”). Accordingly, the proposed amendment does not amend the lottery provisions of the state’s constitution.

IV. REVIEW OF BALLOT TITLE AND SUMMARY

We must also review the ballot title and summary to confirm that they comply with legal requirements. Section 101.161(1), Florida Statutes (2003), requires that the ballot caption not exceed fifteen words, that the ballot summary not exceed seventy-five words, and that the two clearly and unambiguously provide an explanation of the “chief purpose” of the measure. See Askew, 421 So.2d at 154-55. “This requirement provides the voters with fair notice of the contents of the proposed initiative so that the voter will not be misled as to its purpose and can cast an intelligent and informed ballot.” Advisory Op. to the Att’y Gen. re People’s Property Rights Amendments Providing Compensation for Restricting Real Property Use May Cover Multiple Subjects, 699 So.2d 1304, 1307 (Fla.1997); see also Askew, 421 So.2d at 155 (“Simply put, the ballot must give the voter fair notice of the decision he must make.”). We must therefore determine whether the ballot title and summary are misleading. See Advisory Op. to the Att’y Gen. re Right of Citizens to Choose Health Care Providers, 705 So.2d 563, 566 (Fla.1998).

The ballot summary and title meet the statutory word limitations. The opponents to the proposed amendment contend, however, that the ballot summary is defective for three reasons: (A) it fails to inform voters that deauthorization of slot machines would require another constitutional amendment; (B) it fails to inform voters of the proposed amendment’s effect on the extant constitutional provisions concerning lotteries; and (C) it fails to inform voters that the amendment authorizes the Legislature to license and regulate slot machines. We address these in turn.

A. Is the Ballot Summary Defective Because It Fails to Inform Voters that Deauthorization of Slot Machines Would Require Another Constitutional Amendment?

The opponents first argue that the summary fails to inform voters that de-au-thorization of slot machines would require another constitutional amendment. See Askew, 421 So.2d at 156 (holding the ballot summary defective and commenting that “[t]he problem, therefore, lies not with what the summary says, but, rather, with what it does not say”). Last year we rejected this same argument as to the similar proposed amendment authorizing referenda to permit slot machines. See Advisory Op. to the Att’y Gen. re Authorization for County Voters to Approve or Disapprove Slot Machines, 813 So.2d at 102-03 & n. 2. Further, the amendment does not expressly prohibit deauthorization, and the amendment’s silence on deauthorization cannot fairly be read as containing such a prohibition.

B. Is the Ballot Summary Defective Because It Fails to Inform Voters of the Proposed Amendment’s Effect on the Extant Constitutional Provisions Concerning Lotteries?

Next, the opponents argue that the ballot summary is defective because it fails to inform voters of the proposed amendment’s effect on the extant constitutional provisions concerning lotteries. See art. X, §§ 7, 15, Fla. Const. As we have explained, the proposed amendment does not affect these provisions because slot machines are not lotteries. Thus, the ballot summary need not mention them.

C. Is the Ballot Summary Defective Because It Fails to Inform Voters that the Amendment Authorizes the Legislature to License and Regulate Slot Machines?

Finally, the opponents claim that the summary fails to inform voters that the amendment authorizes the Legislature to license and regulate slot machines. The proposed amendment requires the Legislature to adopt implementing legislation and to “authorize agency rules for implementation, and may include provisions for the licensure and regulation of slot machines.” This provision, however, is collateral to the “chief purpose” of the amendment, which the ballot summary must provide in less than seventy-six words. See Advisory Op. to the Att’y Gen. re Prohibiting Public Funding of Political Candidates’ Campaigns, 693 So.2d 972, 975 (Fla.1997) (stating summary is not required to “explain every detail or ramification of the proposed amendment”). We conclude that the ballot summary in this case explains the “chief purpose” of the proposed amendment and meets the requirements of section 101.161(1), Florida Statutes.

V. CONCLUSION

For the reasons stated, we hold that the initiative petition and proposed ballot title and summary meet the legal requirements of article XI, section 3 of the Florida Constitution, and section 101.161(1), Florida Statutes (2003). Accordingly, we approve the amendment for placement on the ballot. We note, however, that no other issue is addressed here and this opinion should not be construed as expressing either favor for or opposition to the proposed amendment.

It is so ordered.

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

WELLS, J., concurs specially with an opinion, in which ANSTEAD, C.J., and BELL, J., concur.

BELL, J., concurs specially with an opinion, in which ANSTEAD, C.J., and LEWIS, J., concur.

WELLS, J.,

specially concurring.

I concur with the decision in this case, which is dictated by our precedent and this Court’s opinion in the 2002 decision concerning this proposed amendment, Advisory Opinion to the Attorney General re Authorization for County Voters to Approve or Disapprove Slot Machines Within Existing Pari-Mutuel Facilities, 813 So.2d 98 (Fla.2002).

However, I agree with the views expressed by Justice Bell’s concurring opinion in respect to the logrolling problem. In respect to petitions circulated by referendum after November 2004, I believe we should adopt Justice Bell’s analysis and recede from those decisions of this Court that have approved proposed amendments which violate the logrolling analysis set forth in Justice Bell’s opinion.

ANSTEAD, C.J., and BELL, J., concur.

BELL, J.,

specially concurring.

I find myself in the same dilemma faced earlier by several of my esteemed predecessors on this Court: Justices Alderman, Ehrlich, and Shaw. I share their concerns about our single-subject jurisprudence, but I am constrained to concur in this opinion by the doctrine of stare decisis. Our decision in In re Advisory Opinion to Attorney General re Authorization for County Voters to Approve or Disapprove Slot Machines Within Existing Pari-Mutuel Facilities, 813 So.2d 98, 100 (Fla.2002), and the other precedent cited by the majority bind us to the result reached. However, if we could write on a clean slate, I would hold that the proposed amendment violates the single-subject restriction of article XI, section 3 of the Florida Constitution because it is a clear example of logrolling.

Over twenty years ago, Justices Aider-man, Ehrlich, and Shaw wrote eloquently on the question of logrolling in citizens’ initiatives and proclaimed their concerns about the impact of this Court’s jurisprudence. In 1978, this Court upheld an initiative petition in Floridians Against Casino Takeover v. Let’s Help Florida, 363 So.2d 337 (Fla.1978), that would have authorized privately owned gambling casinos in a defined area of Dade and Broward counties. Taxes upon the operation of these casinos were mandated and limited to the statewide funding of public schools and local law enforcement. In his dissent, Justice Alderman stated:

Certainly the people have the right to adopt a constitutional amendment that would legalize casino gambling in Florida, but they also have the right to expect that any proposed amendment will be submitted to them in the manner prescribed by the present constitution. An initiative amendment limited to casino gambling and matters directly connected therewith would be lawful. The amendment presently under consideration, in my opinion, is not lawful because the allocation of tax revenue is separate from and not directly connected to the subject of casino gambling. The proposed amendment in its present form is a blatant attempt at “logrolling,” or as appellants say in their brief, it is “a sugar coated pill to attempt to persuade those Floridians not living in Dade and South Broward Counties to vote for casino gambling on the theory that they may receive some benefit therefrom but none of the detriments brought about by casino gambling.”

Id. at 343 (Alderman, J., dissenting).

Six years later, in Fine v. Firestone, 448 So.2d 984, 997 (Fla.1984), Justices Ehrlich and Shaw expressed the same concerns raised by Justice Alderman. Constrained by the doctrine of stare decisis, they concurred in result only to the majority opinion and then wrote separately to express their deep concerns about this Court’s single-subject jurisprudence, especially on the question of logrolling. Justice Ehrlich wrote:

As the majority notes, the purpose of the single-subject requirement is to prevent logrolling, pairing a popular measure with an unpopular one in order to enhance the likelihood of passing the less-favored measure. It would be difficult to imagine a better illustration of logrolling than the initiative proposal approved in Floridians. Tying increased funding of education to the casino gambling proposal was unarguably an attempt to enlist the support of those concerned with the quality of education in Florida for a measure inherently unrelated to education. So long as this Court continues to uphold the result in Floridians, it will stand for the proposition that logrolling may be tolerated in a citizens’ initiative proposal to amend the constitution.

Fine, 448 So.2d at 995-96 (Ehrlich, J. concurring in result only) (emphasis added). Writing separately, Justice Shaw stated:

I see the one-subject limitation on initiative petitions as serving two purposes:
1. Ensuring that initiatives are sufficiently clear so that the reader, whether layman or judge, can understand what it purports to do and perceive its limits. -
2. Ensuring that there is a logical and natural unity of purpose in the initiative so that a vote for or against the initiative is an unequivocal expression of approval or disapproval of the entire initiative.
When the two purposes above are examined, I conclude that the initiative fails on both prongs.

Id. at 998 (Shaw, J. concurring in result only).

The observations of Justices Alderman, Ehrlich, and Shaw are just as true today as they were in 1978 and 1984. And Justice Alderman’s warning that the majority’s “pragmatic” reasoning would read the anti-logrolling concerns of the single-subject limitation “right out of the constitution” has largely been fulfilled. As Justice Ehrlich said in Fine, our precedent does stand for the proposition that logrolling is tolerated in a citizens’ initiative proposal to amend the constitution, at least to the extent that the logrolling is limited to tying the revenue generated from the less popular measure to the funding of a most popular concern. With this kind of jurisprudence, Justice Shaw’s observations are likewise true. As long as we allow initiatives such as this that do not meet the “logical and natural unity of purpose” test, votes cast for or against such initiatives will never be an unequivocal expression of approval or disapproval of the entire initiative. And preventing such disunity is certainly one of the two fundamental purposes of the single-subject limitation.

Despite my deep concerns about our jurisprudence in this area, I must specially concur because of this Court’s precedent, and most particularly because this Court rejected the logrolling argument in a substantially similar amendment in 2002. Nonetheless, in regard to future initiative petitions, I respectfully suggest we restore common sense to our single-subject jurisprudence by receding from those decisions of this Court that are contrary to the analysis of logrolling set forth herein.

ANSTEAD, C.J., and LEWIS, J., concur.

      . The opponents of the proposed amendment, who filed a brief in this cause, are the American Society for the Prevention of Cruelty to Animals, Grey2K USA, The Humane Society of the United States, and No Casinos, Inc.

      . The group sponsoring the proposed amendment is called Floridians for a Level Playing Field.

      . This Court found that another of the taxing provisions did violate the single-subject requirement. 813 So.2d at 102. No similar provision appears in this initiative.

      . Floridians, 363 So.2d at 343 (Alderman, J., dissenting).


author: PER CURIAM. PARIENTE, J., CANTERO, J.,

text:
    Kenneth Allen STEWART, Petitioner, v. James V. CROSBY, Jr., etc., Respondent.
    No. SC02-2716.
    Supreme Court of Florida.
    May 13, 2004.
    Rehearing Denied Aug. 10, 2004.

      Daphney E. Gaylord, Assistant CCRC and Robert T. Strain, Assistant CCRC, Capital Collateral Regional Counsel — Middle Region, Tampa, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Carol M. Dittmar, Senior Assistant Attorney General, Tampa, FL, for Respondent.
   PER CURIAM.

Kenneth Stewart petitions this Court for a writ of habeas corpus. We have jurisdiction. Art. V, § 3(b)(9), Fla. Const. Stewart was convicted of first-degree felony murder, attempted second-degree murder with a firearm, robbery with a firearm, and arson. The trial court imposed a death sentence, which this Court affirmed on direct appeal. Stewart v. State, 588 So.2d 972 (Fla.1991). The facts and procedural history of this case are set out fully in Stewart v. State, 801 So.2d 59 (Fla.2001), where this Court affirmed the trial court’s denial of Stewart’s motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. Stewart has now filed with this Court a petition for a writ of habeas corpus which raises three claims. We deny Stewart's petition for a writ of habeas corpus.

Stewart first argues that Florida’s capital sentencing scheme violates the United States Constitution under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). This Court has previously addressed and rejected this claim. See Jones v. State, 845 So.2d 55 (Fla.2003); Bottoson v. Moore, 833 So.2d 693 (Fla.), cert. denied, 537 U.S. 1070, 123 S.Ct. 662, 154 L.Ed.2d 564 (2002); King v. Moore, 831 So.2d 143 (Fla.), cert. denied, 537 U.S. 1067, 123 S.Ct. 657, 154 L.Ed.2d 556 (2002). Further, one of the aggravating circumstances in this case was that Stewart had been convicted of a prior violent felony. The prior violent felony aggravator alone satisfies the mandates of the United States Constitution; therefore, imposition of the death penalty was constitutional. See Lugo v. State, 845 So.2d 74, 119 n. 79 (Fla.), cert. denied, — U.S. —, 124 S.Ct. 320, 157 L.Ed.2d 216 (2003). Stewart is not entitled to relief on this claim.

Stewart’s remaining claims present issues that lack merit or are procedurally barred because they were raised or properly could have been raised in a Florida Rule of Criminal Procedure 3.850 motion. In his first two subclaims, Stewart asserts that appellate counsel was ineffective in failing to raise on direct appeal trial counsel’s ineffectiveness with respect to possible mitigation and a voluntary intoxication defense. In these claims, Stewart presents a procedural variant of claims which this Court addressed and rejected in Stewart’s rule 3.850 motion. It is improper to argue in a habeas petition a variant to a claim previously decided. Porter v. Crosby, 840 So.2d 981, 984 (Fla.2003). Stewart is not entitled to relief on these claims.

Stewart’s third subclaim, challenging the competency hearing, presents no argument or factual grounds to support the claim; therefore, it is dismissed as insufficiently pled. See Shere v. State, 742 So.2d 215, 218 n. 6 (Fla.1999).

Stewart’s subclaim regarding his incompetence to proceed at all material stages during trial lacks support in the record on direct appeal. Appellate counsel may raise a claim of ineffective assistance of trial counsel only where the ineffectiveness is apparent on the face of the record. Gore v. State, 784 So.2d 418, 437-38 (Fla.2001). Stewart is not entitled to relief on this subclaim.

In his final claim, Stewart asserts that appellate counsel was ineffective in failing to raise on direct appeal the issue of trial counsel’s concession of guilt. Appellate counsel is not ineffective for failing to raise a claim of ineffective assistance of trial counsel on direct appeal because such claims are more effectively raised in a motion for postconviction relief under rule 3.850. See Grubbs v. Singletary, 120 F.3d 1174, 1177 (11th Cir.1997) (citing Blanco v. Wainwright, 507 So.2d 1377, 1384 (Fla.1987)). The claim is procedurally barred.

Because all of Stewart’s claims are either without merit or procedurally barred, we deny the petition for writ of habeas corpus.

It is so ordered.

WELLS, PARIENTE, LEWIS, CANTERO, and BELL, JJ., concur.

PARIENTE, J., concurs specially with an opinion.

CANTERO, J., concurs specially with an opinion, in which WELLS, J., concurs.

ANSTEAD, C.J., concurs in result only.

QUINCE, J., recused.

PARIENTE, J.,

specially concurring.

I concur in the majority opinion and write only to expand on the reasoning contained therein. With regard to Issue 1, because of the presence of the prior violent felony aggravator, I agree that in accordance with our precedent Stewart is not entitled to relief under Ring. See Jones v. State, 855 So.2d 611, 619 (Fla.2003).

With regard to Issue 2, in three of the four subclaims Stewart argues that his appellate counsel was ineffective for not raising trial counsel’s ineffectiveness on direct appeal. I agree that these claims are meritless. Ineffective assistance of counsel claims generally are not cognizable on direct appeal unless trial counsel’s ineffectiveness is apparent on the face of the record. See Gore v. State, 784 So.2d 418, 437-38 (Fla.2001). As to subclaims one and two, trial counsel’s failure to present mitigation and trial counsel’s failure to pursue a voluntary mitigation defense, we have already expressly rejected these exact claims in Stewart’s appeal from the denial of 3.850 relief. See Stewart v. State, 801 So.2d 59 (Fla.2001). Thus, trial counsel’s ineffectiveness could not have been apparent from the face of the record because, simply put, trial counsel was not ineffective. As to the fourth subclaim, in which Stewart asserts that appellate counsel should have argued trial counsel’s ineffectiveness in failing to raise Stewart’s competency to proceed, similarly, no showing of incompetency affirmatively appears in the trial record. Thus, because claims of trial counsel’s ineffectiveness would have been unsuccessful on direct appeal, appellate counsel cannot be ineffective for failing to raise these meritless issues. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000).

Finally, as to Issue 3, whether appellate counsel was ineffective for failing to raise on direct appeal that trial counsel’s concession of Stewart’s guilt to second-degree murder or manslaughter violated his constitutional rights, in this case there was no concession of guilt to first-degree murder. Thus, this case is distinguishable from Nixon v. Singletary, 758 So.2d 618, 630 (Fla.2000), in which counsel conceded guilt to all charges and merely argued for leniency at the penalty phase. Thus, trial counsel’s concession of Griffin’s guilt to the lesser offenses was proper trial strategy here. See Griffin v. State, 866 So.2d 1, 6 (Fla.2003) (concluding that conceding guilt to a lesser offense is counsel’s strategy that may bind a client even when done without consultation); Atwater v. State, 788 So.2d 223, 231 (Fla.2001) (even if defendant did not consent to defense counsel’s strategy to concede guilt to a lesser crime such concession was legitimate trial strategy in attempt to save defendant’s life, and was necessary in light of overwhelming evidence of guilt).

Moreover, any concession of guilt to any offense would not have violated Stewart’s Sixth Amendment rights unless Stewart did not consent to counsel’s strategy. See Nixon II, 758 So.2d at 625; Nixon v. State, 857 So.2d 172, 176 (Fla.2003) (Nixon III) (“[T]he record must contain substantial evidence .... that affirmatively shows that [the defendant] affirmatively, explicitly agreed to counsel’s strategy.”). Because the determination whether competent, substantial evidence exists to establish that Nixon expressly and affirmatively consented to counsel’s strategy requires an evidentiary hearing, this issue should have been raised as an ineffective assistance of trial counsel claim in Stewart’s 3.850 motion. Accordingly, it is now procedurally barred.

For the foregoing reasons, I concur in the majority opinion in this case.

CANTERO, J.,

specially concurring.

I concur in the majority opinion except that, regarding Stewart’s claim that Florida’s capital sentencing scheme violates Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), I would simply hold, in accordance with my specially concurring opinion in Windom v. State, Nos. SC01-2706 & SC02-2142, — So.2d —, 2004 WL 1057640 (Fla. May 6, 2004), that under both federal and Florida law, Ring does not apply to convictions that had become final before that opinion was rendered.

WELLS, J., concurs.

      . In this petition, Stewart alleges: (1) Florida’s death penalty statute is unconstitutional under Ring v. Arizona, 536 U.S. 584, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002), and Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); (2) appellate counsel was ineffective in failing to raise on direct appeal four meritorious issues relating to trial counsel’s ineffectiveness and other errors at trial; and (3) appellate counsel was ineffective for failing to raise on direct appeal the issue of trial counsel's concession of Stewart’s guilt.

      . Indeed, Stewart raised twenty-six claims of ineffective assistance of trial counsel in both the guilt and penalty phases of the trial in his Florida Rule of Criminal Procedure 3.850 motion. Each claim was denied by the trial court. We affirmed this denial in Stewart v. State, 801 So.2d 59 (Fla.2001).

      . With respect to Stewart’s claim that trial counsel failed to investigate evidence of Stewart’s alleged childhood abuse as possible mitigation, this Court concluded that "the investigation and presentation of mitigating evidence in this case was well within the realm of constitutionally adequate assistance of counsel.” Stewart, 801 So.2d at 68. With respect to Stewart's claim that trial counsel was ineffective in failing to employ a voluntary intoxication defense, this Court concluded that “counsel made an informed and reasoned decision not to pursue a voluntary intoxication defense.” Id. at 65.


author: PER CURIAM. ANSTEAD, C.J., PARIENTE, J.,

text:
    Travis TANGUAY, Petitioner, v. STATE of Florida, Respondent.
    No. SC01-613.
    Supreme Court of Florida.
    June 24, 2004.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Richard L. Polin, Senior Assistant Attorney General, Miami, FL, for Respondent.
   PER CURIAM.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

WHEN THE STATE UNLAWFULLY DETAINS A PERSON BEYOND THE EXPIRATION OF HIS OR HER SENTENCE IN ORDER TO SEEK CIVIL COMMITMENT PURSUANT TO THE JIMMY RYCE ACT, SHOULD THAT COMMITMENT PETITION BE DISMISSED WITH PREJUDICE?

Tanguay v. State, 782 So.2d 419, 421 (Fla. 2d DCA 2001). We have jurisdiction, see art. V, § 3(b)(4), Fla. Const., and rephrase the question as follows:

WHEN THE STATE UNLAWFULLY DETAINED A PERSON BEYOND THE EXPIRATION OF HIS OR HER SENTENCE IN ORDER TO SEEK CIVIL COMMITMENT PURSUANT TO THE JIMMY RYCE ACT, WHICH WAS IN EFFECT FROM JANUARY 1, 1999, TO JUNE 1, 1999, DID THE CIRCUIT COURT HAVE JURISDICTION TO ADJUDICATE THE PETITION SINCE THE PETITION WAS NOT FILED WHILE THE PETITIONER WAS IN LAWFUL CUSTODY?

We answer the certified question in the affirmative and approve the district court’s opinion below. We do specifically point out that we rephrased the question in part to underscore that this case is controlled by the Jimmy Ryce Involuntary Civil Commitment for Sexually Violent Predators’ Treatment and Care Act (the Act), sections 916.31-49, Florida Statutes (Supp. 1998), prior to its amendment on June 1, 1999.

In 1996, the petitioner Travis Tanguay was committed to the Department of Juvenile Justice (DJJ) for an indeterminate period not exceeding the maximum sentence for which an adult may serve for the petitioner’s crime or until the petitioner’s nineteenth birthday, whichever first occurred. The petitioner turned nineteen on February 24, 1999. The State detained the petitioner sixteen days beyond the expiration of his sentence so that the State could initiate proceedings under the Act. During the time the petitioner was detained, the multidisciplinary team of the Department of Children and Family Services (DCF) evaluated the petitioner and recommended to the state attorney that the petitioner be classified as a sexually violent predator. See § 916.33, Fla. Stat. (Supp.1998). The state attorney then filed the appropriate commitment petition with the circuit court, alleging that the petitioner was a sexually violent predator subject to commitment under the Act. Id. § 916.34. On May 12, 1999, the circuit court entered an order finding probable cause to declare petitioner a sexually violent predator and ordered the petitioner committed to the DCF pending his commitment trial. Id. § 916.35(1).

The petitioner subsequently filed a motion to dismiss the commitment proceedings, alleging that the circuit court lacked jurisdiction over the proceedings because the petitioner was unlawfully detained beyond the expiration of his sentence. The circuit court stated that the issue before it was whether section 916.45 conferred jurisdiction on the state attorney to file a petition against the petitioner. The petitioner contended in the circuit court that a person must be lawfully in custody at the time the commitment petition is filed. Section 916.45 provided that the Act was applicable to “all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 916.32(8), as well as to all persons convicted of a sexually violent offense in the future.”

The circuit court held:

Section 916.45 was clearly included in the act to prevent the retroactive application of the Jimmy Ryce Act to persons who had been released prior to the effective date of the act. Therefore, the state can file a petition against persons who were lawfully in custody as of January 1, 1999 and had been convicted of a sexually violent offense.
[Tanguay] was lawfully in custody as of January 1, 1999, and this Court has determined that probable cause exists that he may be a sexually violent predator. If [Tanguay] had been released, nothing would have prevented the state from filing a petition for commitment against him. Consequently, the state had jurisdiction to file this petition against [Tanguay] on March 12, 1999 whether or not he was in lawful custody. The determination of whether [Tanguay] was unlawfully detained is simply irrelevant.
Having determined that jurisdiction existed over [Tanguay], his motion to dismiss should be denied.

State v. Tanguay, No. 99-946, order at 2 (Fla. 10th Cir. Ct. order filed Sept. 8, 1999).

The petitioner appealed the circuit court’s order, filing a petition for writ of prohibition in the Second District Court of Appeal to prevent the circuit court from hearing the pending commitment petition. The district court held that the State violated the petitioner’s right to due process by detaining him beyond the expiration of his sentence. The court noted, however, that the petitioner had not asserted that he had been prejudiced by the unlawful confinement and therefore declined to find that the State’s violation of the petitioner’s constitutional rights required dismissal of the commitment petition. The court stated that “the only adequate remedy to address the State’s failure to comply with the requirements of the Act or to afford [petitioner] even minimal constitutional protections is to order [petitioner’s] release from custody pending his commitment hearing.” Tanguay, 782 So.2d at 421. The district court therefore treated the petitioner’s petition for writ of prohibition as a petition for mandamus and granted the petition to the extent that it sought the petitioner’s release from custody.

The Act provides a civil commitment procedure for the long term treatment of sexually violent predators. The Act was created so that a person classified as a sexually violent predator may be involuntarily committed to the DCF for treatment until the person’s mental abnormality or personality disorder has changed and the person is safe to be at large. See Fla. H.R. Comm, on Fam. Law & Child., CS for HB 3827 (1998) Staff Analysis 1 (final May 26, 1998). Because of the constitutional implications related to involuntary commitment, the Legislature provided detailed procedural requirements that the State must follow to proceed under the Act. The procedural requirements relating to the instant case are as follows.

First, the agency with jurisdiction over a person convicted of a sexually violent offense shall give written notice to the multidisciplinary team 180 days or, in the case of an adjudicated committed delinquent, ninety days before the person’s anticipated release from total confinement. In the case of a person who has been returned to confinement for no more than ninety days, written notice must be given as soon as practicable following the person’s return to confinement. The multidisciplinary team then has forty-five days after receipt of notice to assess whether the person meets the definition of a sexually violent predator who should be subject to commitment and to provide the state attorney with its written assessment and recommendation. § 916.33, Fla. Stat. (Supp.1998). The Legislature expressly provided that the requirements of section 916.33 are not jurisdictional and that failure to comply with these requirements would not prevent the State from proceeding under the Act. Id. § 916.33(1). Therefore, if the State fails to strictly adhere to the provisions of this section (i.e., if the State does not provide the multidisciplinary team with notice precisely within 180 or ninety days, or if the multidisciplinary team fails to provide its recommendation within forty-five days), the State may still proceed against the person.

Following receipt of the multidisciplinary team’s assessment, the state attorney may file a petition in the circuit court requesting that the person be declared a sexually violent predator. Id. § 916.34. The circuit court then determines whether probable cause exists to classify the person as a sexually violent predator. If the court determines that probable cause exists, the judge shall direct that the person be taken into custody and held in an appropriate secure facility pending a civil commitment hearing. Id. § 916.35(1).

The State contends that the Act does not require the State to file a commitment petition prior to the expiration of a person’s sentence. First, the State argues that because the Act expressly provides that the time limits in which the multidisciplinary team must make its assessment are not jurisdictional, the State does not forfeit its opportunity to proceed under the Act if the State fails to comply with the notice provisions of the Act. Therefore, the State argues, the circuit court does not lose jurisdiction in circumstances such as the instant case, in which the State failed to initiate proceedings against the petitioner before the expiration of his sentence. Second, the State argues that because section 916.34, Florida Statutes, does not expressly provide a time limit within which the State must file the commitment petition, the State is only required to file the petition upon receipt of the multidisciplinary team’s assessment whether that be before or after the expiration of the person’s sentence.

We agree. There was no “in custody” requirement in the statute conferring jurisdiction in the circuit court which conditioned jurisdiction on the petitioner being “in custody” on the date the petition was filed. To the contrary, section 916.35(1) states, “If the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall direct that the person be taken into custody and held in an appropriate secure facility.”

Accordingly, we conclude that the fact that the petitioner was not in lawful custody when the commitment petition was filed does not divest the circuit court of jurisdiction to adjudicate the petition. We expressly hold, however, that although the commitment petition is not dismissed for lack of jurisdiction, the petitioner is not to be prejudiced in proceeding under the Act by reason of the unlawful detention beyond the expiration of his sentence. Therefore, no evidence obtained from the petitioner during the sixteen days that he was detained beyond the expiration of his sentence is to be used during the commitment proceedings. We therefore approve the district court’s denial of the motion to dismiss and remand this case for further proceedings in accord with this opinion.

This Court has recently construed the applicability of the Act. In State v. Atkinson, 831 So.2d 172 (Fla.2002), this Court held that the Act is limited to persons who were in lawful custody on the effective date of the Act. However, we agree with the circuit court in this case that the provision which we construed in Atkinson, section 916.45, pertained to the retroactivity of the Act. The petitioner in this case was in lawful custody on January 1, 1999, and therefore, unlike the situation in Atkinson, that provision has no bearing in this case.

It is so ordered.

WELLS, LEWIS, and CANTERO, JJ., concur.

QUINCE, J., concurs in result only.

ANSTEAD, C.J., dissents with an opinion, in which PARIENTE, J., concurs.

PARIENTE, J., dissents with an opinion, in which ANSTEAD, C.J., concurs.

ANSTEAD, C.J.,

dissenting.

I respectfully dissent because the majority’s decision fails to consider the current case law from this Court and the district courts on this issue.

Recently, the Second District Court of Appeal in Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003), addressed the same issue that is now before this Court. In that case, the district court construed section 394.925, Florida Statutes (1999), which was formerly section 916.45, Florida Statutes (Supp.1998). This section concerns the applicability of the Act. The district court also considered our decision in State v. Atkinson, 831 So.2d 172 (Fla.2002).

In Gordon, the petitioner, Larry Gordon, was convicted of a lewd and lascivious act in the presence of a child under the age of sixteen and was sentenced to fifteen years imprisonment in 1992. In 1998, when the Department of Corrections (DOC) released Gordon from prison on conditional release supervision, Gordon was sent home. Subsequently, Gordon violated his supervision and was returned to the custody of DOC. On April 6, 2000, the parole commission reinstated Gordon’s conditional release and again sent him home. The next day, DOC apparently determined to seek Gordon’s detention under the Act. DOC contacted DCF, which issued a warrant for Gordon’s arrest. On April 8, 2000, Gordon was arrested and held in the county jail. On April 10, a multidisciplinary team, pursuant to section 394.9135, Florida Statutes (1999), recommended to the State that it begin civil commitment proceedings against Gordon under the Act and a petition was filed. Shortly thereafter, Gordon filed a motion to dismiss the State’s commitment petition arguing that the Act did not apply to him because he was not in custody at the time the petition was filed. After the trial court denied Gordon’s motion, he petitioned for writ of prohibition in the Second District seeking- to have the commitment proceedings dismissed. See Gordon, 839 So.2d at 716-17.

In construing section 394.925, the Second District first concluded that the terms “in custody” and “total confinement” were synonymous. The district court next determined that the Act contemplated that the circuit court would make its probable cause determination prior to the expiration of the defendant’s criminal sentence. The court noted that in situations where the expiration of a defendant’s criminal sentence becomes imminent, section 394.9135 provides that the defendant would be transferred to the custody of DCF and held in a secured facility for a 72-hour period until a determination is made as to whether the defendant is subject to the Act. Because Gordon was not transferred to the custody of DCF in accordance with section 394.9135, but instead was released into society upon his immediate release from DOC custody, the court concluded he was not “in custody” for purposes of the Act.

The court ultimately concluded that under section 394.925, the Act is only applicable to those persons in custody at the time the commitment proceedings are commenced. Accordingly, since Gordon was not in custody at that time the Second District court issued the writ and directed the trial court to dismiss the commitment petition. See Gordon, 839 So.2d at 718-20.

Although Gordon involves the Act as amended in 1999, the statutory language at issue concerning the Act’s applicability is virtually the same as the original language in its predecessor, section 916.45. In State v. Atkinson, 831 So.2d 172 (Fla.2002), this Court construed section 916.45 to mean that the Act was applicable to those persons who were in lawful custody at the time the Act became effective. In Gordon, the Second District, in recognizing and applying Atkinson, construed the same language to mean that the Act was applicable to those persons who were in lawful custody at the time commitment proceedings commenced. Thus, taking the Second District’s interpretation to its logical conclusion, the Act would not apply to those persons who were not in lawful custody at the time commitment proceedings commenced.

I believe the Second District’s interpretation of section 394.925 was correct and can also be applied to section 916.45. Therefore, I conclude that the fact the petitioner was unlawfully detained at the time the commitment proceedings were commenced does divest the circuit court of jurisdiction to adjudicate the petition.

PARIENTE, J., concurs.

PARIENTE, J.,

dissenting.

I concur in Chief Justice Anstead’s dissenting opinion in this case. I write separately to distinguish this case from several cases in which petitions were held to be timely, and to discuss the “safety valve” procedure for detaining individuals beyond completion of sentence that took effect after the expiration of sentence and filing of the petition in this case.

I agree that the petition in this case should be dismissed under the reasoning of Gordon v. Regier, 839 So.2d 715 (Fla. 2d DCA 2003). There the Second District concluded that a defendant who had been lawfully released on conditional release was not in custody when the petition was filed, and thus the State did not have jurisdiction to subsequently proceed against him under the Ryce Act. See id. at 720. The Second District subsequently refused to extend its holding in Gordon to a defendant who was released from prison “due to an administrative error” several hours after the petition for involuntary commitment was filed. See Sirmons v. Regier, 846 So.2d 1151, 1152-53 (Fla. 2d DCA 2003). In Washington v. State, 866 So.2d 725 (Fla. 3d DCA 2004), the Third District affirmed the civil commitment of a defendant who claimed he should have received credit for nineteen days served and therefore was unlawfully detained when the petition was filed. The court held that the trial court had no authority to consider the illegality of the sentence in a civil commitment proceeding, and that the defendant failed to show that the prolonged detention prejudiced his ability to defend against the commitment petition. See id. at 725.

This case is similar to Gordon, in which the defendant had been given conditional release, because Tanguay reached the expiration of his juvenile commitment and should have been released before the civil commitment petition was filed. Unlike the defendant in Sirmons, Tanguay’s release date was not the product of an administrative error. Further, unlike Washington, 866 So.2d at 725, there is no question here of “the alleged illegality” of the defendant’s continued detention. Tanguay was clearly held without probable cause or any pending commitment petition for sixteen days after his juvenile commitment expired. Therefore, Chief Justice Anstead is correct in analyzing this case under Gordon as an instance in which the petition for involuntary commitment was filed after the defendant was or should have been released from custody.

At the time he became entitled to release with no pending commitment petition, there was no authority to continue to hold Tanguay. Subsequent to both the expiration of his sentence and the filing of the petition in this case, the Legislature enacted section 894.9135, Florida Statutes (1999), to allow the State to transfer a defendant to DCF custody upon entitlement to immediate release and pending the filing of a petition for civil commitment. This provision, discussed in the majority opinion in Gordon, see 839 So.2d at 719, and Judge Cope’s specially concurring opinion in Washington, see 866 So.2d at 727, was enacted effective May 26, 1999. See ch. 99-222, §§ 7, 29, Laws of Fla. In this case, Tanguay’s juvenile delinquency commitment expired on February 24, 1999, his nineteenth birthday, and the civil commitment petition was filed sixteen days later, more than two months before the effective date of section 394.9135. Moreover, even if the provision had been in effect, the illegal sixteen-day detention exceeded the combined five-day period for assessment and filing of a petition during a detention following entitlement to immediate release from a sentence or juvenile commitment.

Therefore, I conclude that the requirement that the defendant be “in custody” when the petition is filed means lawful custody pursuant to a prison sentence or juvenile commitment, or, for confinements concluding after the May 26, 1999, effective date of section 394.9135, a transfer to DCF custody pending the filing of a petition. Moreover, I conclude that this requirement is jurisdictional in the sense that the Act does not provide for proceedings against persons no longer in lawful custody when the petition was filed. Accordingly, I dissent from the Court’s decision allowing the commitment process against Tanguay to proceed.

ANSTEAD, C.J., concurs.

      . Section 916.34, Florida Statutes (Supp. 1998), provides:
      Following receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney in the judicial circuit where the person committed the sexually violent offense may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation.

      . Section 394.925 reads in pertinent part, "This part applies to all persons currently in custody who have been convicted of a sexually violent offense ... as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.”

      . Section 916.45 reads in pertinent part, "[This act] applies] to all persons currently in custody who have been convicted of a sexually violent offense ... as well as to all persons convicted of a sexually violent offense in the future.”

      . The record indicates that Tanguay was released from DOC custody in 2001.


author: CANTERO, J. PARIENTE, J.,

text:
    Helen M. CARUSO, etc., Petitioner, v. Earl BAUMLE, Respondent.
    No. SC03-127.
    Supreme Court of Florida.
    June 24, 2004.

      D. Paul McCaskill, Orlando, FL, for Petitioner.
    Elizabeth C. Wheeler, Orlando, Florida; and Lourdes Calvo-Paquette of the Law Offices of Robert Soifer, Orlando, FL, for Respondent.
    Thomas R. Thompson of Thompson, Crawford & Smiley, Tallahassee, FL, for Florida Defense Lawyers Association, Amicus Curiae.
   CANTERO, J.

This case involves the introduction in evidence of personal injury protection (PIP) benefits for purposes of a setoff in an automobile accident case. The issue is whether the applicable statute requires evidence of PIP benefits to be presented to the jury or the judge, and if to the judge, whether the evidence must be submitted at trial or after trial. The Fifth District Court of Appeal certified a question of great public importance. Caruso v. Baumle, 835 So.2d 276, 281 (Fla. 5th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For ease of resolution, we restate and number the questions as follows:

(1) IN AN AUTOMOBILE ACCIDENT CASE, DOES SECTION 627.736(3) REQUIRE THAT EVIDENCE OF PIP BENEFITS FOR PURPOSES OF SETOFF BE PRESENTED TO THE TRIER OF FACT, BE IT JUDGE OR JURY?
(2) IF THE EVIDENCE OF PIP BENEFITS MUST BE PRESENTED TO A JURY, MUST THE JURY BE INSTRUCTED THAT THE PLAINTIFF SHALL NOT RECOVER SPECIAL DAMAGES FOR PERSONAL INJURY PROTECTION BENEFITS PAID OR PAYABLE?
(3) OR, PURSUANT TO THAT STATUTE AND ABSENT A WAIVER OR AN AGREEMENT BY THE PARTIES, MAY A PARTY ASSERTING SETOFF OF PIP BENEFITS INTRODUCE THAT EVIDENCE AFTER A JURY TRIAL TO THE JUDGE FOR A FACT FINDING OF AMOUNTS INVOLVED, AND FOR PURPOSES OF REDUCING THE PLAINTIFF’S RECOVERY?

We answer questions number one and two in the affirmative, number three in the negative, and approve the decision of the Fifth District Court of Appeal.

I. FACTS

On February 4, 1998, petitioners Helen Caruso and Crystal Grubbs, a minor, were involved in an automobile accident with respondent Earl Baumle in which the petitioners were injured. They sued Baumle for damages. Baumle asserted an affirmative defense of setoff of plaintiffs’ PIP benefits. At the jury trial, Baumle ultimately admitted liability. Caruso, 835 So.2d at 277. The jury awarded damages of $18,335.93 to Caruso and $14,052.59 to Grubbs, and found that neither had sustained a permanent injury as a result of the accident.

After trial, the plaintiffs filed a motion for entry of final judgment in the amounts the jury had awarded, with no setoff for PIP payments. The motion alleged that Baumle’s counsel had been unwilling to stipulate how the setoff would be handled, and that the plaintiffs were entitled to judgment with no setoff because at trial, Baumle had introduced no admissible evidence on the amounts of PIP payments. The trial court denied the plaintiffs’ motion.

On the same day the plaintiffs filed the motion for entry of final judgment, Baumle filed a motion for setoff. He then served a notice of deposition of plaintiffs’ PIP carrier to be taken in Miami to authenticate the amount of PIP benefits paid. The plaintiffs moved for a stay as to the post-trial discovery, asserting their intention to seek review of the trial court’s ruling on the post-trial proceedings. The plaintiffs indicated that they would petition for a writ of mandamus to require the court to enter the judgment in accordance with the verdict, without a setoff. The trial court granted the motion to stay. Baumle then moved for a stay of all post-trial proceedings pending disposition of the petition for writ of mandamus. The trial court granted that motion as well.

Plaintiffs filed a petition for writ of mandamus with the Fifth District seeking reversal of the trial court’s decision to allow post-trial discovery on the question of set-off. The Fifth District denied the petition, finding that “[t]he petitioners have not established a clear legal right that the trial court has failed to act, nor otherwise any entitlement to immediate relief. The issue of a post-trial collateral set-off can be raised on direct appeal.” Caruso v. Baumle, 776 So.2d 371, 372 (Fla. 5th DCA 2001).

Baumle then deposed Anthony Baracatt, the records custodian for plaintiffs’ PIP files. Baracatt verified that the plaintiffs’ automobile insurance policy provided $10,000 in PIP coverage for each plaintiff, with a $2000 deductible. He produced copies of petitioners’ PIP payout logs for the accident, and testified that PIP benefits were exhausted as to each plaintiff.

At a hearing on Baumle’s motion for setoff, the trial court ruled that $10,000 in PIP benefits would be setoff against both awards. After the setoffs, Caruso recovered $8,230.90 and Grubbs recovered $4,461.23.

Plaintiffs appealed, arguing that the trial court should not have allowed post-trial discovery and should not have considered evidence regarding the defense of PIP set-off benefits presented after the jury trial. The Fifth District affirmed. Caruso, 835 So.2d at 280. Although the court agreed that section 627.736(3), Florida Statutes (2001), required a defendant to present evidence of PIP benefits at trial, not after trial, the court felt bound by its prior decision in Allstate Insurance Co. v. Scott, 773 So.2d 1290 (Fla. 5th DCA 2001). Scott held that a party asserting the defense of PIP setoffs was not required to introduce that evidence during trial. Id. at 1291. On motion for rehearing, clarification, or certification, the Fifth District adhered to its opinion, but certified the questions of great public importance. Caruso, 835 So.2d at 281.

II. DISCUSSION OF LAW

We consider three issues: (A) whether evidence of PIP benefits must be presented to the trier of fact; (B) whether the jury must be instructed on the existence of a plaintiffs PIP benefits; and (C) at what point; — during or after trial — must evidence of PIP benefits be introduced.

A. Must evidence of PIP benefits for purposes of setoff be presented to the trier of fact?

The first certified question asks whether, in an automobile accident case, evidence of PIP benefits must be presented to the trier of fact — be it a judge or jury — for purposes of a setoff defense. The simple answer is yes. In such cases, section 627.736(3) governs the setoff of PIP benefits. See generally Sheffield v. Superior Ins. Co., 800 So.2d 197, 200 n. 3 (Fla.2001); Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000); McKenna v. Carlson, 771 So.2d 555, 558 (Fla. 5th DCA 2000).

The Florida Statutes contain at least two provisions governing the presentation of collateral sources available to the plaintiff. Section 768.76(1), Florida Statutes (2001), entitled “Collateral sources of indemnity,” provides:

(1) In any action to which this part applies in which liability is admitted or is determined by the trier of fact and in which damages are awarded to compensate the claimant for losses sustained, the court shall reduce the amount of such award by the total of all amounts which have been paid for the benefit of the claimant, or which are otherwise available to the claimant, from all collateral sources; however, there shall be no reduction for collateral sources for which a subrogation or reimbursement right exists. Such reduction shall be offset to the extent of any amount which has been paid, contributed, or forfeited by, or on behalf of, the claimant or members of the claimant’s immediate family to secure her or his right to any collateral source benefit which the claimant is receiving as a result of her or his injury.

Thus, under section 768.76(1), the court reduces the jury award by the amount of collateral source benefits. That section itself states that it must be followed “in any action in which this part applies.” “This part” refers to Part II of Chapter 768, sections 768.71-.81, Florida Statutes (2001). Part II applies “[ejxcept as otherwise specifically provided, ... to any action for damages, whether in tort or in contract.” § 768.71(1), Fla. Stat. (2001). The statute clarifies, however, that “[i]f a provision of this part is in conflict with any other provision of the Florida Statutes, such other provision shall apply.” § 768.71(3), Fla. Stat. (2001).

Another provision, section 627.736(3), is in conflict. That section is part of the Florida Motor Vehicle No-Fault Law, sections 627.730-.7405, Florida Statutes (2001), which, among other things, governs suits arising out of motor vehicle accidents. It provides:

(3) INSURED’S RIGHTS TO RECOVERY OF SPECIAL DAMAGES IN TORT CLAIMS. — No insurer shall have a lien on any recovery in tort by judgment, settlement, or otherwise for personal injury protection benefits, whether suit has been filed or settlement has been reached without suit. An injured party who is entitled to bring suit under the provisions of ss. 627.730-627.7405, or his or her legal representative, shall have no right to recover any damages for which personal injury protection benefits are paid or payable. The plaintiff may prove all of his or her special damages notwithstanding this limitation, but if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable.

(Emphasis added.) Thus, in contrast to the procedure under section 768.76(1), in which the court offsets the collateral source amount, under section 627.736(3), the trier of fact — whether judge or jury— is to offset the amount. As noted, section 768.71(3) provides that any conflicting statute governs over section 768.76. Therefore, in lawsuits concerning motor vehicle accidents, section 627.736(3), not section 768.76(1), applies.

PIP benefits are collateral sources; “that is, first-party benefits for which the insured has paid a separate premium.” Rollins, 761 So.2d at 300. Section 627.736(8) provides that a plaintiff “shall have no right to recover any damages for which [PIP] benefits are paid or payable.” Therefore, we answer the first question in the affirmative: in automobile accident cases, evidence of PIP benefits must be presented to the trier of fact.

B. Must the jury be instructed on the plaintiffs PIP benefits?

The second question asks whether, in cases where the jury is the trier of fact, the jury must be instructed that the plaintiff shall not recover special damages for PIP benefits. Again, the statute answers this question. Section 627.736(3) provides that “if special damages are introduced in evidence, the trier of facts, whether judge or jury, shall not award damages for personal injury protection benefits paid or payable. In all cases in which a jury is required to fix damages, the court shall instruct the jury that the plaintiff shall not recover such special damages for personal injury protection benefits paid or payable ” (emphasis added). Therefore, based on the plain language of the statute, we answer the second question in the affirmative.

The statutory language quoted above implies, of course, that only when the plaintiff introduces evidence of damages that would be covered by PIP benefits must evidence of the PIP benefits be introduced as well. The purpose of the setoff provision in section 627.736(3) “is to prevent a plaintiff from obtaining a double recovery, i.e., receiving as damages sums for which PIP benefits were paid.” McKenna, 771 So.2d at 558. If no evidence of damages covered by PIP benefits is presented, no danger of double recovery exists. Where the jury hears no such evidence (for example, no evidence of medical expenses resulting from the accident), evidence of PIP benefits generally is not relevant. But see Bogosian v. State Farm Mut. Auto. Ins. Co., 817 So.2d 968, 973 (Fla. 3d DCA 2002) (agreeing with the plaintiff that a collateral source instruction should have been given even though plaintiff had introduced no evidence of the PIP benefits paid because the insurer had introduced the policy, which referred to PIP benefits, and the jury’s award indicated it may have made a PIP benefits deduction on its own).

C. When must evidence of PIP benefits be introduced?

The third question asks whether, absent a waiver or an agreement by the parties, a party may introduce evidence of PIP benefits requiring a setoff to the judge after a jury trial. Because we have already determined that • in a jury ■ trial, under section 627.736(3), evidence of PIP benefits for purposes of setoff must be presented to the jury, we find the answer to the third question must be no; if the jury is required to hear evidence of PIP benefits for purposes of a setoff, then a party would have nothing to present to the judge after trial. Although, as happened (inadvertently) in this case, the parties may stipulate to the presentation of the PIP setoff evidence to the trial judge, absent such stipulation such evidence must be presented to the trier of fact.

III. APPLICATION OF LAW TO THIS CASE

Although we have answered the questions above, we note that this case presents unusual circumstances. Here, both parties waived the presentation of evidence of PIP benefits to the jury. The parties apparently operated under the assumption that section 768.76(1) applied and that the judge would determine the setoff issue. (In fact, after trial, the plaintiffs specifically argued that section 768.76(1) applied.) Neither party even mentioned section 627.736(1). As Judge Harris noted in his separate opinion below, the only dispute at trial was whether Baumle should present the evidence of PIP benefits to the judge during the trial (plaintiffs) or after the trial (Baumle). See Caruso, 835 So.2d at 280-81 (Harris, J., concurring specially). Therefore, to resolve this case, we must determine whether, when both parties waive the requirements of section 627.736(3) and agree to submit the PIP setoff issue to the trial court, the court abuses its discretion by (A) considering the issue after trial instead of during trial, and (B) ordering post-trial discovery on the issue. We discuss each issue in turn.

We first determine whether, once the parties waive presentation of PIP benefits to the jury, it is an abuse of discretion for the judge to determine the PIP setoff after the trial. We conclude the answer is no. If, contrary to the statute, both parties waive presentation of the issue to the jury, the judge must still consider evidence of PIP benefits for the purpose of a setoff in order to effectuate the statute’s purpose of preventing a double recovery. Cf. Allstate Ins. Co. v. Rudnick, 761 So.2d 289, 290 (Fla.2000) (noting that “[t]he parties stipulated that all offsets would be handled after trial”). It makes no difference whether the judge performs the setoff at trial — for example, just after the jury verdict-or waits until a post — trial hearing to do so. The effect is the same. Therefore, once the parties waived the jury determination here, it was within the judge’s discretion to determine the setoff after the trial.

The second issue is whether, when a judge decides to consider the setoff issue after trial, the judge may also order post-trial discovery on the issue. The answer to that question depends on the circumstances. In this case, well before trial the court issued a uniform pretrial order providing that “[a]ll discovery shall close on the day prior to the pretrial conference unless extended by Court order for good cause shown.” The order also required the parties to state their objections to any evidence listed on the opposing party’s witness and exhibit lists, and warned that any objections not so stated would be deemed waived at trial. The plaintiffs noted an objection to the PIP records custodian on the grounds of relevance, and to the PIP exhibits on grounds of relevance and overbreadth. The plaintiffs did not object on the grounds of authenticity. It was only at the trial, when Baumle attempted to introduce the PIP records, that plaintiffs objected on that ground. The trial court, in its discretion, allowed post-trial discovery solely for the purpose of authenticating the PIP records.

We find that under these narrow circumstances the trial court did not abuse its discretion in ordering post-trial discovery. Ordinarily, of course, once the trial begins no further discovery is permissible, whether the jury or the judge determines the PIP setoff. In this case, however, the trial court could simply have overruled the plaintiffs’ objection on the grounds of authenticity and accepted the PIP records. Instead, the trial court allowed discovery to address the plaintiffs’ concerns. Therefore, the court’s order allowing discovery actually benefited the plaintiffs. In such circumstances, the court did not abuse its discretion.

III. CONCLUSION

We answer questions number one and two in the affirmative, the third question in the negative, and approve the decision of the district court. We disapprove Scott, 773 So.2d at 1290, to the extent that, contrary to section 627.736(3), it requires the judge to hold a post-trial hearing to determine the PIP setoff.

It is so ordered.

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

PARIENTE, J., concurs with an opinion, in which ANSTEAD, C.J., and CANTERO, J., concur.

PARIENTE, J.,

concurring.

I fully concur in the well-reasoned majority opinion in this case. In particular, I agree that in automobile accident cases, evidence of PIP benefits that have been paid or are payable must be presented to the trier of fact. I write separately because a review of the current jury instructions on collateral sources reveals that there is no instruction that specifically pertains to section 627.736(3), Florida Statutes (2003), the PIP setoff statute at issue in this case. I thus suggest that the Supreme Court Committee on Standard Jury Instructions in Civil Cases (the Committee) consider changes to Florida Standard Jury Instruction 6.13, the collateral source rule. In addition the Committee should consider changes to Paragraph 2 of this jury instruction’s “Notes on Use.”

Currently, as pointed out by the majority, there are two applicable collateral source statutes: section 627.736, which governs setoffs for PIP benefits in automobile accident cases, and section 768.76(1), Florida Statutes (2003), which governs set-offs in all other negligence cases. A third collateral source statute, section 627.7372, Florida Statutes (1987), was repealed in 1993 for causes of action accruing on or after October 1, 1993. See Fla. Std. Jury Instr. 6.13 (Notes on Use) (citing Ch. 93-245, § 3, Laws of Fla.).

Standard Jury Instruction 6.13(a) is the jury instruction that is derived from section 768.76(1), which is applicable to tort actions in general. Standard Jury Instruction 6.13(b) relates solely to the now-repealed statute, section 627.7372, which, similar to the PIP setoff statute, previously required the factfinder to set off the collateral source. There is no mention in the jury instructions on the collateral source rule of the PIP setoff statute that we interpret in this case. Moreover, the Notes on Use in Standard Jury Instruction 6.13 refer only to repealed section 627.7372. The omission of the PIP setoff statute from the jury instructions and notes has the potential to cause confusion rather than assisting judges and litigants.

Accordingly, a specific jury instruction, with accompanying explanatory notes on use, should be added to correspond to the PIP setoff statute, section 627.736(3). I suggest that the Committee study the matter and propose changes to the instructions on the jury’s role in evaluating collateral source evidence in suits involving automobile accidents arising after October 1, 1993. These changes are necessary in order to accurately instruct the jury on the PIP setoff statute.

ANSTEAD, C.J., and CANTERO, J., concur.

      . The actual question certified was the following:
      IN AN AUTOMOBILE ACCIDENT CASE, DOES SECTION 627.736(3) REQUIRE THAT EVIDENCE OF PIP BENEFITS FOR PURPOSES OF SETOFF BE PRESENTED TO THE TRIER OF FACT, BE IT JUDGE OR JURY, AND IF A JURY, MUST THE JURY BE INSTRUCTED THAT THE PLAINTIFF SHALL NOT RECOVER SPECIAL DAMAGES FOR PERSONAL INJURY PROTECTION BENEFITS PAID OR PAYABLE?
      OR, PURSUANT TO THAT STATUTE AND ABSENT A WAIVER OR AN AGREEMENT BY THE PARTIES, MAY A PARTY, ASSERTING SETOFF OF PIP BENEFITS, INTRODUCE THAT EVIDENCE AFTER A JURY TRIAL TO THE JUDGE FOR A FACT FINDING OF AMOUNTS INVOLVED, AND FOR PURPOSES OF REDUCING THE PLAINTIFF'S RECOVERY?

        Caruso, 835 So.2d at 281.

      . In Garcia v. Arraga, 872 So.2d 266 (Fla. 4th DCA 2004), the Fourth District recently found that both section 768.76(1) and section 627.736(3) apply simultaneously "regardless if [sic ] the case is a personal injuiy case or a general tort case." 872 So.2d at 269. The district court concluded that "both provisions provide the trial court with the authority to reduce damage awards by the value of collateral sources payments as a post-verdict procedure.” Id. We disagree with this position and, as explained above, find that in motor vehicle accident cases, section 627.736(3) controls.

      . The Fifth District refers to this as the "obvious assumption in section 627.736(3) that the ‘trier of fact’ will hear evidence of the PIP setoffs, be it judge or jury, and that the jury will be instructed plaintiffs cannot recover such PIP benefits paid or payable.” Caruso, 835 So.2d at 280 (emphasis added).

      . Florida Standard Jury Instruction 6.13 provides:
      A. Tort actions generally:
      You should not reduce the amount of compensation to which (claimant) is otherwise entitled on account of [wages] [medical insurance payments] [or other benefits (specially)] which the evidence shows (claimant) received from his [employer] [insurance company] [or some other source]. The court will reduce as necessary the amount of compensation to which (claimant) is entitled on account of any such payments.
      B. Actions accruing before October 1, 1993 arising out of ownership, operation, use or maintenance of a motor vehicle:
      In this case, you should reduce the amount of compensation to which (claimant) is otherwise entitled on account of [wages] [disability benefits] [medical insurance benefits] [or other benefits (specify)] which the evidence shows (claimant) received from his [employer] [insurance company] [or some other source].
      FI. Std. Jury Inst. 6.13.