text:
    Inquiry Concerning a Judge, re Carven D. ANGEL.
    No. SC03-833.
    Supreme Court of Florida.
    Feb. 19, 2004.
    Richard C. McFarlain, Chairman, Tallahassee, FL; Thomas C. MacDonald, Jr., General Counsel, Tampa, FL; Brooke S. Kennerly, Executive Director, Tallahassee, FL; and Marvin E. Barkin, Michael K. Green, and Marie Tomassi of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., Tampa, FL, for Florida Judicial Qualifications Commission, Petitioner.

      Edward C. Cluster of Ayres, Cluster, Curry, McCall, Collins & Fuller, P.A., Oca-la, FL, for Judge Angel, Respondent.
   PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (“JQC”) that Judge Carven D. Angel receive the sanction of public reprimand for his judicial misconduct. We have jurisdiction. See art. V, § 12, Fla. Const. As explained in more detail below, the JQC’s recommendation is approved.

The instant action arose from charges filed against Judge Angel alleging that during his 2002 election campaign for the judgeship he now occupies he engaged in a pattern of improper conduct, namely that he engaged in prohibited partisan political activity. On May 23, 2003, the JQC filed a notice of formal proceedings against Judge Angel charging him with thirteen ethical violations. Judge Angel was charged with violating sections 105.071(1) and (3) of the Florida Statutes (2003), and violating Canon 7 of the Code of Judicial Conduct, specifically sections 7 A(l)(d), 7 A(3), and 7 C(3). The JQC’s notice of formal charges set forth in pertinent part the following:

1. During the campaign, on or about June 29, 2002, in violation of § 105.071(1), Florida Statutes, and Canon 7A.(l)(d) and 7C(3), you attended a “Grass Roots BBQ” sponsored by the Marion County Republican Party to which your opponent, was not invited, with your wife and daughter where you and they campaigned for your election.
2. During the campaign, on or about July 4, 2002, in violation of § 105.071(1) and Canon 7A.(l)(d) and 7C.(3), you attended and made a campaign speech at the Silver Springs Democratic Club gathering to which your opponent was not invited.
3. During the campaign, in violation of § 105.071(1), Florida Statutes, and Canon 7A.(l)(d) you attended and participated in a regular meeting of the Ocala Republican Women.
4. During the campaign, in violation of § 105.071(1) and Canon 7A.(l)(d), you attended and you and members of your family campaigned for your election at a “Salute to Labor Picnic and Democratic Candidate Rally.”
5. During the campaign, on or about August 15, 2002, in violation of § 105.071(1), Florida Statutes, and Canon 7A.(l)(d), you attended and participated in a meeting of the Republican Club of Sumter County.
6. During the campaign on or about August 26, 2002, in violation of § 105.071, Florida Statutes, and Canon 7A.(l)(d), 7A.(3)(c) and 7C.(3), you attended and participated in the Lake County Federated Women Republican’s “Meet the Candidate Night” to which your opponent was not invited and knowingly permitted one of your daughters to make a campaign speech on your behalf at that event.
7. During the campaign, in violation of § 105.071(1), Florida Statutes, and Canon 7A.(1)(D) and 7C.(3), you attended the “Dennis Baxley Family Picnic” which was a partisan political gathering to support Republican Dennis Baxley, a Republican candidate for the House of Representatives, to which your opponent was not invited and spoke asking for the votes of the. persons present.
8. During the campaign, in violation of § 105.071(1), Florida Statutes, Canon 7A.(l)(d), 7C.(3), and 7A.(3)(e), you knowingly authorized one of your daughters to attend and campaign on your behalf at a “Republican Grass Roots Meeting” in Brooksville, Florida.
9. During the campaign, in violation of § 105.071(1), Florida Statutes, and Canon 7A.(l)(d) and 7A.(3)('c), you knowingly permitted one of your daughters to attend, speak and campaign at a meeting of the Palm Bay Democratic in Marion County, Florida to which your opponent was not invited.
10. During the campaign, in violation of § 105.071(1), Florida Statutes, Canon 7A.(l)(d) and 7A.(3)(c), you knowingly permitted one of your daughters to attend and campaign on your behalf at the Oak Run Republican Club’s “Candidate Forum.”
11. During the campaign, in violation of § 105.071(1), Florida Statutes, Canon 7A-(l)(d), 7C.(3) and 7A.(3)(c), you knowingly permitted one of your daughters to attend, campaign and speak on your behalf at a meéting of the Silver Springs Shore Democratic Club to which your opponent was not invited.
12. During the campaign, in violation of § 105.071(1), Canon 7A.(l)(d) and 7A.(3)(c), you attended a Marion County Republican Party fornm in Ocala and were recognized as a judicial candidate.
13. During the campaign, in violation of § 105.071(3), Florida Statutes, and Canon 7C.(3), you publicly represented yourself and held yourself out as a member of a partisan political party.

On June 13, 2003, Judge Angel answered the formal charge. On August 22, 2003, the JQC and Judge Angel presented a stipulation to this Court pursuant to article V, section 12 of the Florida Constitution, and Florida Judicial Qualifications Commission Rule 6(j). In that stipulation, Judge Angel admitted seven of the thirteen original charges and the impropriety of that conduct, which occurred during the course of his 2002 election campaign. The JQC recommended a public reprimand of Judge Angel. As explained below, based on the stipulated facts, the JQC’s recommendation is approved.

This Court “gives the findings and recommendations of the JQC great weight.” In re Kinsey, 842 So.2d 77, 85 (Fla.2003). However, “the ultimate power and responsibility in making a determination rests with this Court.” Id. (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)). This Court “review[s] the findings to ensure that there is ‘clear and convincing evidence’ to support the alleged ethical violations — a standard of proof which has been described as ‘more than a preponderance of the evidence, but the proof need not be beyond and to the exclusion of a reasonable doubt.’ ” Id. (quoting Davey, 645 So.2d at 404).

A review of the stipulation entered into by Judge Angel and the JQC, as well as the JQC’s findings, demonstrates by clear and convincing evidence that Judge Angel’s conduct relating to partisan political functions violated both the spirit and the letter of section 105.071 of the Florida Statutes and Canon 7 of the Code of Judicial Conduct. Judge Angel admitted the conduct alleged, and the impropriety of that conduct, in the stipulation presented by the parties. Judge Angel’s own admissions bolster the JQC’s findings, which we give great weight as we consider its recommendation of discipline in the instant action. See In re Rodriguez, 829 So.2d 857, 860 (Fla.2002); In re McMillan, 797 So.2d 560, 566 (Fla.2001).

In other cases, this Court has accepted the JQC’s recommendation of public reprimand for conduct in violation of Canon 7 of the Code of Judicial Conduct, as well as section 105.071 of the Florida Statutes. See In re Alley, 699 So.2d 1369, 1370 (Fla. 1997) (approving public reprimand for judicial election campaign violations); In re Glickstein, 620 So.2d 1000, 1002-03 (Fla. 1993) (approving public reprimand for violation of Canon 7); In re Turner, 573 So.2d 1, 2 (Fla.1990) (same); In re Kay, 508 So.2d 329, 330 (Fla.1987) (approving public reprimand for violation of Canon 7 as well as section 105.071, Florida Statutes); In re Pratt, 508 So.2d 8, 9-10 (Fla. 1987) (same). Certainly, in very egregious cases, where a judge’s misconduct included implications that he or she would make partisan decisions on the bench, the JQC has recommended a substantial fine in addition to a public reprimand and even removal. See In re Kinsey, 842 So.2d at 92 (approving the JQC’s recommendation that a substantial fine in addition to a public reprimand was warranted where a judge’s misconduct included “improper campaign statements which imply that, if elected, the judicial candidate will favor one group of citizens over another or will make rulings based upon the sway of popular sentiment in the community”); In re McMillan, 797 So.2d at 572 (approving the JQC’s recommendation of removal where the judge’s “misconduct during the campaign reflect[ed] a candidate seeking to be elected upon promises of partiality” and the judge’s “misconduct on the bench ... reflected] a willingness to sit in judgment in the face of a blatant conflict of interest and personal bias”). Based on the stipulated facts in the instant action, the JQC recommended only that Judge Angel be publicly reprimanded for his misconduct. We accept the JQC’s recommendation of a public reprimand for Judge Angel, which is consistent with governing precedent with regard to the appropriate sanction for this type of judicial misconduct.

In accordance with the policy announced in In re Frank, 753 So.2d 1228, 1242 (Fla.2000), where we concluded that when the conduct of a jurist is egregious to the extent that it requires a public reprimand, the defaulting jurist must appear before this Court, we hereby command Judge Carven D. Angel to appear before this Court for the administration of a public reprimand at a time to be established by the clerk of this Court.

It is so ordered.

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

      . Section 105.071 of the Florida Statutes (2003) provides in relevant part:
      A candidate for judicial office shall not:
      (1) Participate in any partisan political party activities, except that such candidate may register to vote as a member of any political party and may vote in any party primary for candidates for nomination of the party in which she or he is registered to vote.

      (3) Publicly represent or advertise herself or himself as a member of any political party.
      § 105.071(1), (3), Fla. Stat. (2003).

      . Canon 7 of the Code of Judicial Conduct provides in pertinent part:
      A JUDGE OR CANDIDATE FOR JUDICIAL OFFICE SHALL REFRAIN FROM INAPPROPRIATE POLITICAL ACTIVITY
      A. All Judges and Candidates.
      (1) Except as authorized in Sections 7B(2), 7C(2) and 7C(3), a judge or a candidate for election or appointment to judicial office shall not:

      (d) attend political party functions;

      (3) A candidate for a judicial office:
      (a)shall maintain the dignity appropriate to judicial office and act in a manner consistent with the integrity and independence of the judiciary, and shall encourage members of the candidate's family to adhere to the same standards of political conduct in support of the candidate as apply to the candidate;
      (b) shall prohibit employees and officials who serve at the pleasure of the candidate, and shall discourage other employees and officials subject to the candidate's direction and control from doing on the candidate’s behalf what the candidate is prohibited from doing under the Sections of this Canon;
      (c) except to the extent permitted by Section 7C(1), shall not authorize or knowingly permit any other person to do for the candidate what the candidate is prohibited from doing under the Sections of this Canon;

      C. Judges and Candidates Subject to Public Election.

      (3) A judicial candidate involved in an election or re-election, or a merit retention candidate who has certified that he or she has active opposition, may attend a political party function to speak in behalf of his or her candidacy or on a matter that relates to the law, the improvement of the legal system, or the administration of justice. The function must not be a fund raiser, and the invitation to speak must also include the other candidates, if any, for that office. The candidate should refrain from commenting on the candidate’s affiliation with any political party or other candidate, and should avoid expressing a position on any political issue. A judicial candidate attending a political party function must avoid conduct that suggests or appears to suggest support of or opposition to a political party, a political issue, or another candidate. Conduct limited to that described above does not constitute participation in a partisan political party activity.
      Fla.Code Jud. Conduct, Canon 7.

      .The seven violations Judge Angel admitted correspond to charges 3 through 7, 12, and 13 of the notice of formal charges. Specifically, the stipulation encompassed the following charges:
      1. During the campaign, in violation of section 105.071(1) of the Florida Statutes and Canon 7A(l)(d) of the Code of Judicial Conduct, you attended and participated in a regular meeting of the Ocala Republican Womens Club.
      2. During the campaign, in violation of section 105.071(1) of the Florida Statutes and Canon 7A(l)(d) of the Code of Judicial Conduct, you and members of your family attended and campaigned for your election at a "Salute to Labor Picnic and Democratic Candidate Rally."
      3. During the campaign, on or about August 15, 2002, in violation of section 105.071(1) of the Florida Statutes and Canon 7A(l)(d) of the Code of Judicial Conduct, you attended and participated in a meeting of the Republican Club of Sumter County.
      4. During the campaign, on or about August 26, 2002, in violation of section 105.071 of the Florida Statutes and Canon 7A(l)(d), 7A(3) and 7C(3) of the Code of Judicial Conduct, with your knowledge, your wife attended and participated on your behalf in the Lake County Federated Women Republican's "Meet the Candidate Night." Your wife assumed your opponent was invited, but your opponent was not invited and was not present.
      5. During the campaign, in violation of section 105.071(1) of the Florida Statutes and Canon 7A(l)(d) and 7C(3) of the Code of Judicial Conduct, you attended the "Dennis Baxley Family Picnic,” which was a partisan political gathering to support Republican Dennis Baxley, a candidate for the House of Representatives, to which your opponent was not invited and you spoke asking for the votes of the persons present.
      6. During the campaign, in violation of section 105.071(1) of the Florida Statutes and Canon 7A(l)(d) and 7C(3) of the Code of Judicial Conduct, you attended a Marion County Republican Party forum in Ocala and were recognized as a judicial candidate.
      7. During the campaign, in violation of section 105.071(3) of the Florida Statutes and Canon 7C(3) of the Code of Judicial Conduct, when asked about your political party affiliation, you identified yourself as a member of a partisan political party and thus held yourself out as a member of a partisan political party.


source: Caselaw Access Project

author: PARIENTE, J. WELLS, J.,

license: Public Domain

text:
    Ronald R. CARDENAS, Jr., Petitioner, v. STATE of Florida, Respondent. State of Florida, Petitioner, v. Howard Russell Bonine, Respondent.
    Nos. SC02-1264, SC02-927.
    Supreme Court of Florida.
    Feb. 26, 2004.

      Ronald R. Cardenas, Jr., pro se, DeFun-iak Springs, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, James W. Rogers, Tallahassee Bureau Chief, Criminal Appeals, and Robert L. Martin, Assistant Attorney General, Tallahassee, FL, for Respondent.
    Charles J. Crist, Jr., Attorney General, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, FL, for Petitioner.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Seventh Judicial Circuit, Daytona Beach, FL, for Respondent.
   PARIENTE, J.

These cases, which we have consolidated for purposes of this opinion, present two related questions concerning a standard jury instruction in prosecutions for driving or boating under the influence of alcohol. The questions are, first, whether giving the standard jury instruction on the presumption of impairment contrary to our decision in State v. Miles, 775 So.2d 950 (Fla.2000), is fundamental error and second, if preserved, whether the error in giving the instruction is harmful per se or instead subject to a harmless error analysis.

In Miles, we held that the jury should not be instructed on the presumption of impairment when the State introduces blood-alcohol evidence that it obtained without complying with the quality assurance requirements of the implied consent law. See id. at 956-57. The standard jury instruction on the presumption of impairment, which was given in both cases under review, provides that a blood-alcohol level of .08 percent “is sufficient by itself’ to establish that the driver was impaired.

In Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002), the First District Court of Appeal concluded that giving the standard instruction on the presumption of impairment contrary to Miles is not fundamental error that can be raised initially on appeal, and certified the following question of great public importance:

IS IT FUNDAMENTAL ERROR TO GIVE A JÚRY INSTRUCTION ON THE PRESUMPTION OF IMPAIRMENT IN VIOLATION OF THE PRECEPTS OF STATE V MILES, 775 So.2d 950 (Fla.2000)?

Cardenas, 816 So.2d at 726.

In Bonine v. State, 811 So.2d 863, 866 (Fla. 5th DCA 2002), the Fifth District Court of Appeal concluded that instructing the jury on the presumption of impairment in violation of Miles is harmful error per se. The Fifth District certified conflict with McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-619 (Fla. Mar. 18, 2002), in which the Second District concluded that giving the improper instruction was harmless error. See Bonine, 811 So.2d at 867. We have jurisdiction in both cases. See art. V, § 3(b)(4), Fla. Const.

For the reasons that follow, we approve Cardenas, quash Bonine, and disapprove McBride to the extent that it holds that the error is harmless solely because of overwhelming evidence of actual impairment.

I. FACTS AND PROCEDURAL HISTORY

A. Cardenas

Cardenas was charged with two counts of boating under the influence (BUI) manslaughter and one count of BUI causing serious bodily injury, among other offenses. On the BUI counts, the State alleged that Cardenas was operating the boat either while he was impaired or while he had a blood- or breath-alcohol level of 0.08 percent or higher. At trial, the State introduced evidence that Cardenas had been drinking before the fatal collision and had a blood-alcohol level of 0.0999 percent. Cardenas’s theory of defense was that another person was operating the boat at the time of the accident.

The trial court gave the standard jury instruction that provided two alternative methods in which to prove the crimes charged: that the State had to prove beyond a reasonable doubt that at the time of the fatal accident, Cardenas “was under the influence of alcoholic beverages to the extent that his normal faculties were impaired or had a blood alcohol level of .08 or higher.” The court instructed the jury that “[njormal faculties include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies, and in general, to normally perform the many mental and physical acts of our daily lives.” The court also gave the standard jury instruction on the presumptions of impairment contained in the implied consent law. The jury, utilizing a general verdict form, found Cardenas guilty as charged.

On appeal, Cardenas asserted that the trial court committed reversible error under Miles by giving the standard jury instruction on the presumption of impairment after the State failed to comply with the requirements of the implied consent law in obtaining the blood-alcohol evidence relied upon for the presumption. The First District affirmed Cardenas’s convictions, concluding that the issue was not preserved for appeal. The court also concluded that the instruction did not constitute fundamental error, but certified the question as having great public importance. See Cardenas, 816 So.2d at 727.

B. Bonine

Bonine was charged with driving under the influence (DUI) manslaughter and leaving the scene of a fatal accident after the vehicle he was driving struck and killed a motorcyclist. On the DUI manslaughter count, the State alleged in the alternative that Bonine was impaired by alcohol or a controlled substance, or had a blood-alcohol level of 0.08 percent or higher. In a dissenting opinion, Judge Harris summarized the evidence supporting both impairment and unlawful blood-alcohol level:

A witness observed the defendant’s vehicle “weaving in front of him” to such an extent that the witness dropped back, only to observe the defendant’s vehicle further up the road stopped by the side of the highway about a quarter of a mile beyond the accident scene where it had run into a concrete sign/bench. The witness saw a motorcycle on the ground and the body of the victim lying in the ditch. The motorcycle had been rear-ended. The witness then observed appellant staggering back toward the scene of the accident and heard him admit that he had hit the motorcyclist but thought it was a deer. An officer described the defendant as “smelling of alcohol” and as having slurred speech. Further, defendant admitted to having consumed beer on the day in question and his blood-alcohol level was .226.

Bonine, 811 So.2d at 869 (Harris, J., dissenting). The theories of defense were reasonable doubt that Bonine was impaired and unreliability of the blood-alcohol evidence.

As in Cardenas, the trial court instructed the jury that the crime of DUI could be established either by actual impairment or by having a blood-alcohol level of .08 or higher. The court also instructed the jury on the presumption of impairment. Utilizing a general verdict form, the jury found Bonine guilty as charged, and Bonine appealed the conviction. The Fifth District, sitting en banc, determined that giving the instruction despite the State’s failure to comply with the requirements of the implied consent law constituted error under Miles, and held that the error was harmful per se. See Bonine, 811 So.2d at 866.

II. DUI AND THE PRESUMPTION OF IMPAIRMENT

The statute criminalizing DUI currently provides that a defendant can be charged and convicted under three alternative theories:

(1) A person is guilty of the offense of driving under the influence and is subject to punishment as provided in subsection (2) if the person is driving or in actual physical control of a vehicle within this state and:
(a) The person is under the influence of alcoholic beverages, any chemical substance set forth in s. 877.111, or any substance controlled under chapter 893, when affected to the extent that the person’s normal faculties are impaired;
(b) The person has a blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood; or
(c) The person has a breath-alcohol level of .08 or more grams of alcohol per 210 liters of breath.

§ 316.193(1), Fla. Stat. (2003). Section 327.35, Florida Statutes, (1995), the BUI statute under which Cardenas was convicted, is identical to the DUI statute in regard to the alternative elements of impairment and unlawful blood-or breath-alcohol level. Thus, subsection (l)(a) requires proof of impairment, while the strict liability approach of subsections (l)(b) and (l)(c) requires proof of driving with an unlawful blood-or breath-alcohol level, otherwise known as DUBAL.

The blood-alcohol evidence that proves DUBAL may be admitted under either the common law governing scientific test results or the implied consent law. Under the common law, a scientific test result on intoxication is admissible “if a proper predicate established that (1) the test was reliable, (2) the test was performed by a qualified operator with the proper equipment and (3) expert testimony was presented concerning the meaning of the test.” State v. Bender, 382 So.2d 697, 699 (Fla.1980).

Admission of blood-alcohol evidence under the common law predicate does not trigger any presumption regarding impairment. The State may rely on the presumption of impairment only if the additional requirements of the implied consent law for quality assurance of the blood sample are met. See Robertson v. State, 604 So.2d 783, 792 (Fla.1992). Following Robertson, we held in Miles that the administrative rule governing blood collection and testing procedures under the implied consent law was invalid because it did not adequately provide for the preservation of blood-alcohol evidence. We further held in Miles that noncompliance with these strict quality assurance requirements precludes the State from relying on the presumption of impairment. See 775 So.2d at 953-57. Because the implied consent provisions are identical in all material respects for DUI and BUI, Miles, which involved DUI, applies in BUI cases as well. See Cameron v. State, 804 So.2d 338, 342 (Fla. 4th DCA 2001) (“It is true that Miles and Robertson arose under the motor vehicle statutes and not the boating statutes, but the two statutory schemes are identical and the result under the latter should be no different than the result under [the] former.”). The State does not contend otherwise.

In certifying the question in Cardenas, the First District calls upon this Court to determine whether improperly instructing the jury on the presumption of impairment, contrary to Miles, is fundamental error, which can be raised for the first time on appeal. The certified conflict in Bonine relates to properly preserved error and requires us to determine whether an erroneous instruction on the presumption of impairment can be subjected to a harmless error analysis or, instead, is harmful per se.

III. ANALYSIS

A. Fundamental Error

This Court recently reiterated longstanding principles concerning preservation of instructional error:

Instructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred. To justify not imposing the contemporaneous objection rule, the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error. In other words, fundamental error occurs only when the omission is •pertinent or material to what the jury must consider in order to convict.

Reed v. State, 837 So.2d 366, 370 (Fla.2002) (quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991)) (citations and quotation marks omitted) (emphasis supplied). Applying this test in Reed, we concluded that the trial court committed fundamental error in giving a standard instruction that incorrectly defined malice, an essential element of the offense of aggravated child abuse, when that element was disputed at trial. See id. at 369.

We first address whether giving a presumption of impairment instruction in violation of Miles reaches into the validity of the trial itself such that a guilty verdict “could not have been obtained without the assistance of’ the error. Id. at 370 (quoting Delva, 575 So.2d at 644). We conclude that, because of the unique nature of the DUI statutory scheme, the improper instruction does not meet this test of fundamental error.

As we have explained, there are alternative methods of proving DUI — impairment or DUBAL. The presumption of impairment instruction assists the State in proving only one of these alternatives, impairment. As we explained in Robertson, the revision to the DUI statute that made impairment and DUBAL alternative methods of proving the same offense, rather than separate offenses, created a redundancy in the statute, “since impairment is presumed if the blood-alcohol content is 0.10 or higher.” 604 So.2d at 792 n. 14. As noted by the Second District, the DU-BAL instruction “is available to the State regardless of the presumption instruction.” Tyner v. State, 805 So.2d 862, 867 (Fla. 2d DCA 2001).

We recognized in Robertson that the availability of the DUBAL alternative makes the presumption of impairment “a moot concern if the state proves beyond a reasonable doubt that the defendant operated a motor vehicle with an unlawful blood-alcohol level.” 604 So.2d at 792 n. 14. Nonetheless, as the cases under review demonstrate, juries have continued to be instructed on the presumption of impairment as an alternative to DUBAL in both DUI and BUI cases.

When the jury is instructed on DUBAL after the State has introduced blood-alcohol evidence under the three-prong test of Bender, as occurred in each of these cases, the jury may find the defendant guilty based on the same evidence that supports the presumption of impairment without considering whether the defendant was under the influence of alcohol to the extent that his or her normal faculties were impaired. As we observed in State v. Rolle, 560 So.2d 1154, 1156 (Fla.1990), in which we upheld the presumption of impairment instruction against a constitutional challenge,

[t]o the extent the challenged instruction allowed the jury to substitute proof of a blood-alcohol level of 0.10 percent or higher for proof of impairment it correctly stated the law. Essentially, section 316.193 allows proof of a blood-alcohol level of 0.10 percent or higher to be substituted for proof of impairment— not as an unconstitutional presumption, but as an alternate element of the offense.

Id. at 1156. This statement applies equally to the current .08 percent threshold for DUBAL and the presumption of impairment. In his dissenting opinion in Bonine, Judge Harris also explained that the presumption is unnecessary when the jury is instructed on DUBAL:

In order to receive the presumption instruction the State must first prove the alternative theory for conviction, unlawful blood alcohol level. If the State proves this theory, then proving impairment is surplusage and the presumption instruction is redundant. On the other hand, if the State fails to prove an unlawful blood alcohol level, then the presumption, even if the instruction is given, does not come into play.

811 So.2d at 868 n. 2 (Harris, J., dissenting).

An instruction on a DUI theory that is surplusage, or whose redundancy makes it a “moot concern” as we stated in Robertson, 604 So.2d at 792 n. 4, cannot be “pertinent or material to what the jury must consider in order to convict.” See Reed, 837 So.2d at 370 (emphasis supplied). Accordingly, it is not fundamental error to instruct the jury on the presumption of impairment when a jury finds the defendant guilty of DUI after being instructed on DUBAL.

We next consider whether erroneously instructing the jury on the presumption of impairment can be considered fundamental error if the jury is also instructed on actual impairment but not DUBAL. We answer this question in the negative because the presumption neither omits nor incorrectly defines the element of impairment. As noted by the First District in Cardenas,

[a]n improper instruction or failure to instruct as to an essential element of a crime may rise to the level of fundamental error. The instruction in the instant case, however, neither omitted from the definition of an offense one of the essential elements, nor misdefined one of the essential elements of an offense. The challenged instruction merely advised the jury of an evidentiary presumption or permissible inference that they were free to accept or reject.
The use of the standard impairment presumption instruction here did not constitute fundamental error because it did not affect the fairness of the proceeding. There is no assertion that the blood samples taken from appellant on the night of the accident were tainted in any way. We fail to see how the giving of the standard impairment presumption instruction under these circumstances influenced the outcome of the trial or that the guilty verdict could not have been obtained without the improper instruction.

816 So.2d at 727 (citations omitted). The First District analogized the improper instruction on the statutory presumption to erroneous instructions on affirmative defenses. The court observed that in Holiday v. State, 753 So.2d 1264, 1269-70 (Fla.2000), and Smith v. State, 521 So.2d 106, 108 (Fla.1988), this Court held that instructions improperly shifting the burden of proof on the affirmative defenses of entrapment and insanity did not violate due process, and thus were not fundamental error. See Cardenas, 816 So.2d at 727. The First District in Cardenas also cited to Rolle, in which we determined that the implied consent law created a permissive inference, not an unconstitutional presumption, on only one of the two theories supporting conviction. See id. (citing to Rolle, 560 So.2d at 1156). The Second District, relying on Cardenas, has also held that “it is not fundamental error to give the instruction.” Daigle v. State, 848 So.2d 1233, 1234 (Fla. 2d DCA2003).

We agree with the conclusion of the First District that the improper instruction on the presumption of impairment neither omitted nor misdefined an essential element of the crime. Cf. Sochor v. State, 619 So.2d 285, 290 (Fla.1993) (finding that failure to give instruction on voluntary intoxication did not constitute fundamental error because voluntary intoxication was a defense to, but not an essential element of, the charged crime). This situation is different from cases such as Reed, in which the trial court incorrectly defined malice, an essential element of the crime of aggravated child abuse. See 837 So.2d at 370.

Therefore, we conclude that the improper instruction does not constitute fundamental error when the jury is instructed on either DUBAL or actual impairment, or both. Accordingly, we answer in the negative the First District’s certified question in Cardenas as to whether instructing on the presumption in violation of Miles is fundamental error.

B. Harmless Error

We next address the certified conflict between the Fifth District decision in Bonine and the Second District decision in McBride on harmless error. The Fifth District held in Bonine that the instruction on the presumption of impairment is per se harmful, while the Second District in McBride conducted a harmless error analysis. Many of the same considerations that guided our determination that the improper instruction is not fundamental error lead us also to conclude that the improper instruction on the presumption of impairment is not harmful per se when the defendant is charged with DUBAL and the jury is correctly instructed thereon. In Bonine, the Fifth District did not address the effect of the DUBAL allegation and instruction in holding that the improper instruction on the presumption of impairment was harmful error per se. Instead, the Fifth District analogized the erroneous instruction on the presumption of impairment to cases in which reversal was compelled because the appellate court could not discern the effect of a legal error in instructing on one of two theories supporting a general guilty verdict. See Bonine, 811 So.2d at 866-67. Taking a contrary view in McBride, the Second District found the erroneous instruction to be harmless “due to the overwhelming evidence of McBride’s impairment presented by the State,” without discussing whether the State charged and the trial court instructed on DUBAL. 816 So.2d at 658.

We conclude that the “general verdict” precedent relied on by the Fifth District in Bonim to hold that the erroneous instruction constitutes per se harmful error does not apply to the DUI statutory scheme. In Yates v. United States, 354 U.S. 298, 77 S.Ct. 1064, 1 L.Ed.2d 1356 (1957), overruled on other grounds, Burks v. United States, 437 U.S. 1, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978), the Supreme Court held that a conviction under a general verdict is improper when it rests on multiple bases, one of which is legally inadequate. Accordingly, the Court reversed a conviction of conspiracy based on a general verdict where one of the possible grounds for conviction was legally inadequate because of a statutory time bar. See Yates, 354 U.S. at 311-12, 77 S.Ct. 1064. In Griffin v. United States, 502 U.S. 46, 112 S.Ct. 466, 116 L.Ed.2d 371 (1991), the Court distinguished Yates from situations in which the evidence on one theory is merely factually insufficient, explaining that when “jurors have been left the option of relying upon a legally inadequate theory, there is no reason to think that their own intelligence and expertise will save them from that error.” Griffin, 502 U.S. at 59, 112 S.Ct. 466. However, when the evidence is factually insufficient to support conviction on one of the two theories, “jurors are well equipped to analyze the evidence” and reject that theory. Id. Applying these principles, the Court held in Griffin that the Due Process Clause of the Fifth Amendment does not require that a general guilty verdict on a multiple-object conspiracy charge be set aside if the evidence is inadequate to support conviction as to only one object of the conspiracy. See id. at 60.

In accord with Griffin, this Court has held that legally insufficient evidence on one of two theories supporting a general verdict does not warrant reversal, even with proper objection at trial:

While a general guilty verdict must be set aside where the conviction may have rested on an unconstitutional ground or a legally inadequate theory, reversal is not warranted where the general verdict could have rested upon a theory of liability without adequate evidentiary support when there was an alternative theory of guilt for which the evidence was sufficient.

San Martin v. State, 717 So.2d 462, 470 (Fla.1998) (footnotes omitted) (emphasis supplied); see also Mungin v. State, 689 So.2d 1026, 1029 (Fla.1995). In both San Martin and Mungin, this Court affirmed first-degree murder convictions based on felony murder although the evidence was legally insufficient to prove the alternative theory of premeditated murder, concluding in each case that the error was “clearly harmless.” San Martin, 717 So.2d at 469; Mungin, 689 So.2d at 1029.

The distinction between legally inadequate and factually insufficient theories of guilt recognized in these cases turns on the discrete nature of each theory. The reasoning is that where the theories are independent, a reviewing court cannot determine whether a jury relied on the evidence supporting a theory on which it was erroneously instructed through a mistake in the law, rather than the evidence supporting the valid theory. This distinction does not apply in the cases under review because when the jury is instructed on both DUBAL and the presumption of impairment, the alternative methods for proving DUI through blood test results rely on the same evidentiary fact — the existence of a .08 blood-alcohol level. A blood-alcohol level of .08 or higher both establishes DUBAL and assists the State in proving impairment. To either conclude that a defendant is guilty under the DU-BAL alternative or apply the presumption of impairment, the jurors must first find beyond a reasonable doubt that the defendant operated a motor vehicle with a .08 blood-alcohol level. This fact independently establishes DUI via DUBAL under section 316.193(l)(b) without regard to the alternative of impairment under section 316.193(l)(a). Thus, jurors instructed on both DUBAL and the presumption of impairment are capable of determining that when the State has established a .08 percent blood-alcohol level beyond a reasonable doubt, the presumption of impairment is, as the Court stated in Robertson, a “moot concern.” 604 So.2d at 792 n. 14.

Relying on our statement in Robertson, the Fourth District has held that the improper instruction on the presumption of impairment is harmless error when the State proves DUBAL “beyond a reasonable doubt.” State v. Cameron, 837 So.2d 1111, 1113 (Fla. 4th DCA 2003); cf. Rolle, 560 So.2d at 1157 (Barkett, J., specially concurring) (“As long as the jury was properly instructed on the DUBAL theory, any error in the other theory was, in effect, harmless.”). Moreover, as Judge Harris recognized in Bonine, if the proof of unlawful blood alcohol level falls short, the instruction on the presumption of impairment “does not come into play” and is harmless. 811 So.2d at 868 n. 2 (Harris, J., dissenting).

As to the proper harmless error analysis when the jury is not instruet-ed on DUBAL, we disagree with the view of Judge Harris in Bonine, 811 So.2d at 870, and the holding of the Second District in McBride, 816 So.2d at 656, that overwhelming evidence of impairment alone can render the error in instructing on the presumption of impairment harmless. As noted by the Fifth District in the majority opinion in Bonine, we have emphasized that the test of harmless error

is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an ovenvhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict. The burden to show the error was harmless must remain on the state. If the appellate court cannot say beyond a reasonable doubt that the error did not affect the verdict, then the error is by definition harmful.

811 So.2d at 866 (quoting State v. DiGuilio, 491 So .2d 1129, 1139 (Fla.1986)). Relying on the same passage from DiGmlio, this Court held that an unconstitutional predecessor to the instruction on the presumption of impairment given in these cases was not harmless beyond a reasonable doubt even though there was other evidence of actual impairment. See Wilhelm v. State, 568 So.2d 1, 3 (Fla.1990).

Where the evidence of actual impairment is strong, as it was in both Bonine and McBride, the jury may none-theless choose to rely in part or whole on the presumption of impairment instruction that a blood alcohol level of .08 percent “is sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that his normal faculties were impaired.” We therefore disapprove McBride to the extent that it departs from the DiGuilio test for harmless error. See also Williams v. State, 863 So.2d 1189 (Fla.2003) (quashing district court decision that incorrectly applied DiGuilio test); Knowles v. State, 848 So.2d 1055, 1059 (Fla.2003) (same).

IV. THE INSTANT CASES

Based on these conclusions, we address the decisions below in Cardenas and Bo-nine. There is no indication in these cases either that the State failed to carry its burden of laying the common law predicate for blood-alcohol evidence or that the evidence was improperly admitted. Thus, the State properly introduced evidence that Cardenas’ blood-alcohol level was .0999 percent and Bonine’s blood-alcohol level was .226 percent.

In both Cardenas and Bonine, the juries rendered general verdicts of guilt after being properly instructed on the alternative theories of DUBAL and actual impairment. Accordingly, in Cardenas the improper instruction on the presumption of impairment was not fundamental error both because the blood alcohol evidence was properly admitted, thereby providing a factually sufficient basis to prove DU-BAL, and because there was evidence to establish actual impairment.

The Fifth District concluded in Bonine that the error under Miles in giving the instruction was harmful per se without first addressing whether the issue was preserved for appeal. See Bonine, 811 So.2d at 866. Our independent re-view of the record reveals that Bonine did not object to the instruction, and therefore failed to preserve the issue for appeal. Accordingly, the Fifth District erred in reversing Bonine’s conviction on an issue that was neither preserved nor fundamental error. See Reed, 837 So.2d at 370 (absent an objection at trial, challenges to jury instructions can be raised on appeal only if fundamental error occurred). For this reason and because the court in Bonine also incorrectly held that the error was harmful per se, contrary to our decision today, we quash the Fifth District’s decision.

V. CONCLUSION

In conclusion, we hold that an improper instruction on the statutory presumption of impairment, given contrary to the holding in Miles, is not fundamental error if the State charges DUBAL and the jury is correctly instructed thereon, or if the jury is correctly instructed on actual impairment. As to improper instructions that are preserved by a timely objection, we hold that error under Miles is harmless under a general verdict when the State charges and the jury is also correctly instructed on DUBAL. However, if no DU-BAL instruction is given and the jury must rely on impairment as the sole theory of guilt of DUI, then any preserved error in giving an improper instruction on the statutory presumption of impairment should be assessed under the harmless error test of DiGuilio. Based on these conclusions, we approve the First District decision in Cardenas and answer the question certified therein in the negative. In Bonine, we quash the Fifth District decision and remand for affirmance of Bonine’s conviction of DUI manslaughter. We disapprove McBride to the extent it is inconsistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and LEWIS, CANTERO, and BELL, JJ., concur.

WELLS, J., concurs in part and dissents in part with an opinion, in which QUINCE, J., concurs.

WELLS, J.,

concurring in part and dissenting in part.

I concur with the majority’s decision in approving the First District’s decision in Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002), and in quashing the Fifth District’s decision in Bonine v. State, 811 So.2d 863 (Fla. 5th DCA 2002). I do not join in the majority opinion in respect to harmless error, which I conclude is dicta. I dissent from the majority’s partial disapproval of the Second District’s decision in McBride v. State, 816 So.2d 656 (Fla. 2d DCA 2002).

The reason that the majority’s discussion of the harmless error is dicta in Bo-nine is plain in that the majority opinion acknowledges, at page 24, that there was no objection to the instruction. In light of there being no objection, as this Court pointed out in Reed v. State, 837 So.2d 366, 369-70 (Fla.2002), the proper analysis is whether the error is fundamental — not whether the error is harmless. Bonine conflicts with Cardenas but not with McBride.

Thus, this Court does not have jurisdiction to disapprove a part of McBride. But even if there was jurisdiction, I would not agree with the partial disapproval of the McBride decision because the majority gives the Second District’s opinion too cramped a reading and unnecessarily and inappropriately corrects the Second District. The majority ignores that the Second District’s opinion specially states:

Error is harmless only “if it can be said beyond a reasonable doubt that the verdict could not have been affected by error.” State v. DiGuilio, 491 So.2d 1129,1135 (Fla.1986).

McBride v. State, 816 So.2d at 657. I do not join in disapproving the district court for its use of a word which the majority simply decides it will not use.

I do agree with the Second District’s decision that any error in respect to the instruction was harmless.

QUINCE, J., concurs.

      . The Second District Court of Appeal certified the same question in Daigle v. State, 848 So.2d 1233, 1234 (Fla. 2d DCA 2003), notice to invoke discretionary review filed, No. SC03-1284 (Fla. July 21, 2003). The First District also certified a similar question in Leveritt v. State, 817 So.2d 891, 897-98 (Fla. 1st DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-1369 (Fla. June 18, 2002). We have stayed the proceedings in Daigle and Leveritt pending our decision in Cardenas.

      . The Second District subsequently certified conflict with Bonine on the harmless error issue in Searles v. State, 816 So.2d 793, 795 (Fla. 2d DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-1254 (Fla. June 3, 2002). We have stayed the proceedings in Searles pending our decision in Bonine. McBride v. State, No. SC02-619 (Fla. notice filed March 18, 2002), is also pending review in this Court based on an alleged express and direct conflict with Bonine and three other Fifth District decisions. The proceedings in McBride have also been stayed.

      . The standard instructions on the presumptions arising from blood- or breath-alcohol test results provide:
      1. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired.
      2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 but less than 0.08, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his][her] normal faculties were impaired; or
      3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.
      These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.
      Fla. Std. Jury Instr. (Crim.) 7.8, 28.1, 28.3.

      . A general verdict is one in which the jury determines guilt or innocence without making explicit findings. See Sullivan v. Louisiana, 508 U.S. 275, 283, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993).

      . At the time of Cardenas's convictions, sections 316.193 and 327.35 each contained a single subsection that addressed both unlawful blood-and breath-alcohol content. Specifically, sections 316.193(l)(b) and 327.35(l)(b), Florida Statutes (1995), provided that a person was guilty of driving and boating under the influence if the person "had a Mood or breath alcohol level of .08 percent” or above. In a 1996 amendment, the Legislature separated into different subsections the levels of blood-and breath-alcohol content that constitute the crimes. See ch. 96-330, Laws of Fla., eff. Oct. 1, 1996.

      . The alternative DUBAL theory of driving with an unlawful breath-alcohol level, currently contained in subsection (l)(c), is not involved in these cases.

      . When Robertson was decided, the threshold for DUBAL was a blood-alcohol level of .10 percent. The Legislature subsequently reduced the threshold for both DUBAL and the presumption of impairment to .08 percent. See ch. 93-124, § 1-2, 4, Laws of Fla.

      . DUI and DUBAL were originally separate offenses with separate penalties. In 1982, the Legislature amended the DUI statute to make impairment and unlawful blood-alcohol level, which had been separate offenses with separate penalties, into alternative theories of guilt of a single offense. See State v. Rolle, 560 So.2d 1154, 1155 (Fla.1990).

      . We disagree with Justice Wells’ assertion in his separate opinion that there is no reason to address the harmless error issue in Bonine. The interdistrict conflict on this issue, which was certified by the Fifth District and also appears on the face of the opinion in Bonine, should be reconciled. See art. V, § 3(b)(3)-(4), Fla. Const.; Fla. Patient’s Compensation Fund v. St. Paul Fire & Marine Ins. Co., 559 So.2d 195 (Fla.1990) (concluding that conflict on the face of the opinions "must be harmonized”). This conflict is between Bonine and McBride rather than Bonine and Cardenas, as suggested by Justice Wells, because the Fifth District opinion in Bonine does not reveal whether the error in that case was preserved for appeal. The same conflict over harmless error was subsequently certified by the Second District in Searles, 816 So.2d at 795, in which we have stayed proceedings before merits briefing pending resolution of Bonine. In certifying conflict with Bonine, the Second District in Searles also cited several other decisions in which the Fifth District concluded that the error in giving the presumption of impairment instruction could not be harmless. See Servís v. State, 802 So.2d 359, 360 (Fla. 5th DCA 2001) (refusing to find error harmless because there was no way to determine the theory upon which the jury relied in reaching its verdict); Bass v. State, 801 So.2d 975, 975-76 (Fla. 5th DCA 2001) (refusing to find error harmless even given "other evidence presented of Bass’s impairment” because “we cannot conclude that use of presumption did not likely contribute to the verdict”); Hembree v. State, 790 So.2d 590, 591 (Fla. 5th DCA 2001) (finding error "clearly prejudicial” and “clearly preserved”). In short, this is an issue certain to recur. In fact, if we do not address harmless error in Bonine, which has been fully briefed, we will have to order briefing and address the issue in Searles, a case that has been stayed pending our disposition of these cases.

      . The Fifth District has reversed other DUI convictions based on the same reasoning. See Servis, 802 So.2d at 359-60; Bass, 801 So.2d at 976; Hembree, 790 So.2d at 591.

      . The Second District relied on the following facts in finding the error harmless in McBride:

      At trial, the State presented evidence from several witnesses that McBride drove at approximately 70 miles per hour in a 35 miles per hour zone, swerved in and out of lanes, had trouble maintaining a lane, nearly rear-ended a minivan, barely missed hitting a bicyclist, and swerved into oncoming traffic, where he hit the victim’s car head on. Additionally, testimony showed that McBride’s tires were screeching as he wove through traffic arid that he cut so closely in front of other cars that the drivers were forced to slam on their brakes in order to avoid being hit by McBride’s vehicle. Furthermore, two of the paramedics that responded to the scene testified that while in the ambulance with McBride, they smelled alcohol on his breath, and a police officer testified that McBride said he had been drinking all day.
      816 So.2d at 657.

      . In addition to the strength of the evidence of impairment, other relevant considerations in a determination of harmlessness include the exact language used in instructing the jury on the presumption, the margin by which the blood-alcohol test result exceeded the .08 percent threshold, and the degree to which the defense challenged the reliability of the test results or rebutted the presumption with evidence showing lack of impairment. As we stated in Bender,

      [t]he presumptions are rebuttable, and a defendant may in any proceeding attack the reliability of the testing procedures, the qualifications of the operator, and the standards establishing the zones of intoxicant levels. In addition, other competent evidence may be presented to rebut the presumptions concerning whether the person was under the influence of alcoholic beverages to the extent that his or her normal faculties were impaired.
      382 So.2d at 699. With these considerations stated, we leave the determination of whether an improper instruction on the presumption of impairment is harmless error in the absence of a DUBAL instruction to the district courts of appeal and to the circuit courts acting in their appellate capacity in reviewing misdemeanor DUI convictions.

      . In a subsequent case, the Fifth District asserted that Bonine was "not [a] fundamental error case[ ]," suggesting that the error in Bonine was preserved for appeal. See Rodriguez v. State, 837 So.2d 478, 481 (Fla. 5th DCA 2002), review denied, No. SC03-475, 868 So.2d 524 (Fla. Jan. 23, 2004). The Fifth District in Rodriguez further stated in dicta that an improper instruction on the presumption of impairment would not be fundamental error, citing to the First District decisions in Cardenas and Leveritt. See id.

      . We decline to address the additional issues raised by the parties that are beyond the scope of the certified question. See Wheaton v. State, 789 So.2d 975, 975 n. 2 (Fla.2001); McMullen v. State, 714 So.2d 368, 373 (Fla. 1998).


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

text:
    STATE of Florida, Petitioner, v. Allister JONES, Respondent.
    No. SC02-1921.
    Supreme Court of Florida.
    Feb. 26, 2004.
    Charles J. Crist, Jr., Attorney General, Celia Terenzio, Bureau Chief, West Palm Beach, and Karen Finkle, Assistant Attorney General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review Jones v. State, 821 So.2d 473 (Fla. 4th DCA 2002), which expressly and directly conflicts with the decision in Harris v. State, 438 So.2d 787 (Fla.1983). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth herein, we quash the decision of the Fourth District Court of Appeal.

FACTUAL BACKGROUND

Allister Jones was charged with the lewd assault upon and the false imprisonment of a child under the age of thirteen. At trial, the prosecutor remarked during closing argument:

The State of Florida has proven this case beyond a reasonable doubt and I ask you to go back in that jury room, apply your common sense to the true facts of this case and come back and tell the defendant what he knows sitting there today, that he is guilty of indecent assault.

Jones, 821 So.2d at 474 (emphasis added). Jones objected to the prosecutor’s remark “what [the defendant] knows” as being an improper comment on the defendant. Id. The prosecutor argued that he was not commenting on Jones’s right to remain silent. The trial court overruled Jones’s objection. Id. The jury found Jones guilty as charged and he was sentenced to fifteen years’ imprisonment as to count I and 7.7 years’ imprisonment as to count II, which was to run concurrent with count I.

The Fourth District Court of Appeal reversed and remanded for a new trial, finding that the prosecutor’s remarks im-permissibly commented on Jones’s right to remain silent. Id. The court concluded that by referring to Jones as “sitting there,” and instructing the jury to “tell [Jones] what he already knows,” the prosecutor suggested that Jones did not testify because he knew he was guilty. Id. In reaching its decision, the court concluded that the remarks made in this case were distinguishable from those made in Harris v. State, 438 So.2d 787 (Fla.1983), and thus, Harris was not controlling authority. 821 So.2d at 475. The State contends that the Fourth District erroneously distinguished Harris and that Harris is controlling authority in this case.

ANALYSIS

In Jones, the Fourth District stated that the prosecutor’s comment in Harris was distinguishable from the prosecutor’s remark made in this case because it foctised on the defendant’s demeanor at the time of his confession, and not his demeanor during the trial. Jones, 821 So.2d at 474-75. However, we disagree with the Fourth District’s interpretation of Harris.

In Harris, the defendant was charged with first-degree murder, burglary with an assault, and robbery. During the trial, the investigating officers testified that Harris was calm during his interrogation and consistently denied his involvement in the murder until several hours later, when he gave an oral statement and signed a written confession. 438 So.2d at 790. During closing argument, the prosecutor made the following statement: “I submit to you this was a voluntary statement taken after a considerable period of time in which [Harris] sat there and remained the same immobile, unemotional self as he has this entire trial.” Id. at 794. Harris argued that this statement constituted an improper comment on his right to remain silent at trial. However, after a full reading of the prosecutor’s entire closing argument, we determined that the prosecutor was merely demonstrating to the jury that Harris’s confession was voluntary by comparing Harris’s demeanor during his interrogation to his demeanor at trial. Id. at 795.

There are several eases like Harris where this Court has evaluated the prosecutor’s actions in context rather than focusing on the challenged statement in isolation. See, e.g., Caballero v. State, 851 So.2d 655, 660 (Fla.2003) (finding that the prosecutor’s statement during closing argument emphasizing uncontradicted evidence of the defendant’s actions was for the purpose of rebutting a defense argument and not to impermissibly direct attention to the defendant’s decision to not testify); Chandler v. State, 848 So.2d 1031, 1043-44 (Fla.2003) (finding that prosecutor’s closing remark telling the jury to “think about all the things [the defendant] wouldn’t talk about and didn’t say” was not an improper comment on the defendant’s Fifth Amendment rights); Jordan v. State, 334 So.2d 589, 592-93 (Fla.1976) (finding that prosecutor’s closing remark that “[the defendant] does not have the courage to stand before the Bench and take that first step toward rehabilitation and say, okay, I am sorry” was not improper); State v. Jones, 204 So.2d 515, 517 (Fla.1967) (finding that prosecutor’s statement “[t]hese are the acts and conduct of the defendant,” when read in full context of the closing argument, did not refer to the defendant’s decision to not testify); see also Bauta v. State, 698 So.2d 860, 864 (Fla. 3d DCA 1997) (finding that although the challenged closing statement was improper when taken in isolation, the statement was permissible when read in context). Thus, when determining whether a statement imper-missibly comments on the defendant’s right to remain silent during trial, the court should examine the statement in the context in which it was made.

In this case, the Fourth District improperly isolated the phrase “sitting there,” instead of viewing it in the context in which it was made. When the phrase is read in the context of the entire argument, it is clear that the statement amounts to nothing more than a point of reference. Thus, we believe the prosecutor was simply referring to Jones’s physical position in the courtroom and did not improperly comment on his right to remain silent at trial.

Our conclusion is especially true when the challenged statement is compared to cases involving closing remarks that were found to have improperly commented on the defendant’s right to remain silent. See, e.g., Miller v. State, 847 So.2d 1093, 1094-95 (Fla. 4th DCA 2003) (finding that prosecutor’s closing statement that the defendant has the right to remain silent and that “[h]e did not take the stand in this case” impermissibly highlighted the defendant’s decision to not testify); Layton v. State, 435 So.2d 883, 883-84 (Fla. 3d DCA 1983) (finding that prosecutor’s closing remark that the defendants “have been sitting here ... listening] to how each witness testified” was an impermissible comment on one defendant’s decision to not testify); Fernandez v. State, 427 So.2d 265, 265-66 (Fla. 2d DCA 1983) (finding that prosecutor’s closing statement “I would suggest to you during this entire trial the defense has rested. I haven’t heard a defense yet” clearly commented on the defendant’s failure to testify); Hall v. State, 364 So.2d 866, 867 (Fla. 1st DCA 1978) (finding that prosecutor’s closing remark that the defense had to use a particular defense tactic “because [the defendant] is sitting over here quietly” referred to the defendant’s silence during cross-examination testimony rather than during the closing argument and was thus impermissible). Notably, unlike Layton, Fernandez, and Hall, the closing remark in this case does not seem to indicate that the respondent was “sitting there” during the entire trial.

Therefore, we quash the Fourth District’s decision and remand for further proceedings consistent with this opinion.

It is so ordered.

WELLS, LEWIS, QUINCE, and BELL, JJ., concur.

WELLS, J., concurs with an opinion, in which LEWIS and BELL, JJ., concur.

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

PARIENTE, J., recused.

WELLS, J.,

concurring.

I concur in this decision. For the reasons stated in Judge May’s dissent, I find that the district court’s decision in this case does conflict with this Court’s decision in Harris v. State, 438 So.2d 787 (Fla.1983). As Judge May stated:

The Florida Supreme Court considered a statement very similar to the one made in this case in Harris v. State, 438 So.2d 787 (Fla.1983). In Harris, the prosecutor made the following statement:
I submit to you this was a voluntary statement taken after a considerable period of time in which he sat there and remained the same immobile, unemotional self as he has this entire trial.
Taken in the context of the entire closing argument, the court found the statement to be a fair comment on the defendant’s demeanor during a confession, and not an impermissible comment on the exercise of the defendant’s right to remain silent. See also State v. Dix, 723 So.2d 351 (Fla. 5th DCA 1998) (prosecutor’s statement regarding defendant’s admission did not constitute comment on his exercise of the right to remain silent); Dorman v. State, 638 So.2d 589 (Fla. 3d DCA 1994) (prosecutor’s statement on the lack of testimony to support defendant’s claim of self-defense was not a comment on the defendant’s exercise of his right to remain silent); Minnis v. State, 505 So.2d 17 (Fla. 3d DCA 1987) (prosecutor’s comment on .defendant’s oral statement to arresting officer was not a comment on the defendant’s exercise of his right to remain silent).
, The majority suggests that the statement in Harris is, different than the comment in this case because it focused on the defendant's demeanor at the time of the confession. However, in making that comment, the prosecutor compared the defendant’s demeanor at the time of the confession to his demeanor during the trial. “[H]e sat there and remained the same immobile, unemotional self as he has this entire trial.” I continue to believe that the majority’s distinction is one without a difference.
Like Harris, viewing the statement in the context in which it was made, the prosecutor’s statement was not “fairly susceptible of being interpreted by the jury as a comment on the defendant’s exercise of his right to remain silent.” [Jackson v. State, 522 So.2d 802, 807 (Fla.1988).] The trial court properly overruled the objection, and I would affirm the defendant’s conviction.

Jones v. State, 821 So.2d 473 (Fla. 4th DCA 2002) (May, J., dissenting).

LEWIS and BELL, JJ., concur.

ANSTEAD, C.J.,

dissenting.

I would discharge jurisdiction in this case as having been improvidently granted. The asserted basis for jurisdiction is that the Fourth District court improperly distinguished this Court’s holding in Harris v. State, 438 So.2d 787 (Fla.1983). However, upon review of the two cases, it is apparent that they are factually distinguishable because the statements at issue in this case and Harris were made under completely different circumstances.

When making a comparison with previous decisions on the issue of whether the State impermissibly highlighted the defendant’s right to not testify, this Court has noted the importance of analyzing the prosecutor’s argument in the light of the circumstances in each case. State v. Jones, 204 So.2d 515, 517 (Fla.1967). In Harris, the prosecutor referred to the defendant’s demeanor at trial for the purpose of illustrating his demeanor during his interrogation. 438 So.2d at 794-95. However, in this case, the prosecutor did not refer to Jones’s demeanor at trial but instead referred to what Jones knew as he was “sitting there” at trial, i.e., “that he is guilty of indecent assault.” Jones v. State, 821 So.2d at 475. Because the prosecutor’s objective in making the statement was different in each of these cases, I conclude the Fourth District properly distinguished Harris.

Moreover, because these cases are highly factually specific, I believe we will add little to the law in providing another layer of review. The majority opinion is not announcing a broad rule of law, but instead has us serving as a second appellate court, which is not the function of this Court. Since the intent of article V of the Florida Constitution is that the district courts are ordinarily the first and final courts of appeal, I believe this Court should not review and second-guess the Fourth District’s decision.

CANTERO, J., concurs.


author: PER CURIAM.

text:
    David SAWYER, Petitioner, v. STATE of Florida, Respondent.
    No. SC02-1672.
    Supreme Court of Florida.
    Feb. 26, 2004.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

We have for review the decision in Sawyer v. State, 819 So.2d 966 (Fla. 4th DCA 2002), which certified conflict with the decision in Department of Highway Safety & Motor Vehicles v. Critchfield, 805 So.2d 1034 (Fla. 5th DCA 2002), which we recently affirmed in Florida Department of Highway Safety & Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003). We have jurisdiction. See Art. V, § 3(b)(4), Fla. Const. We accept jurisdiction in this case, quash the decision of the Fourth District Court of Appeal, and remand for reconsideration in light of our decision in Critchfield.

It is so ordered.

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


text:
    S.H., A Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2968.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2003.
    James B. Gibson, Public Defender, and Lyle Hitchens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya Henry, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

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

SHARP, W., THOMPSON and MONACO, JJ., concur.


text:
    Bruce DeBACHER, Appellant, v. Maria DeBACHER, Appellee.
    Nos. 3D02-1301, 3D02-1571, 3D02-2343.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2003.
    Rehearing and Rehearing En Banc Denied March 10, 2004.
    Marks & West, P.A.; Greene, Smith & Associates, P.A. and Cynthia L. Greene, Miami, for appellant.
    Leinoff & Lemos, P.A., Coral Gables; Young, Berman, Karpf & Gonzalez, P.A. and Andrew S. Berman, Miami, for appel-lee.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

Of all the issues raised, we find that the trial court abused its discretion only when it failed to impute income to the former wife in determining its child support award. The child support guidelines, section 61.30, specifically provide in pertinent part that:

Income on a monthly basis shall be imputed to an unemployed or underemployed parent when such employment or underemployment is found to be voluntary on that parent’s part, absent physical or mental incapacity or other circumstances over which the parent has no control. In the event of such voluntary unemployment or underemployment, the employment potential and probable earnings level of the parent shall be determined based upon his or her recent work history, occupational qualifications, and prevailing earnings level in the community[J (emphasis added).

§ 61.30(2)(b), Fla. Stat. (2001). Accordingly, that portion of the trial court’s order is remanded for findings concerning the amount of income attributable to each party and for recalculation of the child support award pursuant to section 61.30. See Fla. Dep’t of Revenue v. Hennessey, 812 So.2d 442, 443 (Fla. 2d DCA 2001)(holding that where mother was voluntarily unemployed, income was imputable to her for purposes of child support obligation); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999)(“For purposes of child support, the trial court must impute income to a voluntarily unemployed or underemployed parent unless the lack of employment is the result of the spouse’s physical incapacity or other circumstances beyond the parent’s control.” (emphasis in original)). In all other respects, we affirm.

Affirmed in part. Reversed and remanded in part.


author: ALTENBERND, Chief Judge.

text:
    In the Interest of C.D., Minor child. T.E.D., father, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-2638.
    District Court of Appeal of Florida, Second District.
    Nov. 26, 2003.
    Heather M. Gray, Riverview, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, for Appellee.
   ALTENBERND, Chief Judge.

In this case, an order terminating parental rights was entered based upon a “default.” The father was three minutes late for the initial advisory hearing. He waited outside the courtroom in the waiting area for forty-five minutes until given 'information as to the proper courtroom. He was “defaulted.” Although an attorney had been appointed to represent the father in an earlier shelter hearing and in the dependency proceeding, the father was unrepresented in the termination proceeding. Within ten days from the entry of the default, the father mailed a letter to the trial court explaining the circumstances that caused him to be late. The trial court should have treated this letter as a motion for rehearing. See Fla. R. Juv. P. 8.265. Instead, the trial court made no ruling on the letter and entered final judgment terminating the father’s parental rights on March 20, 2003. Counsel was not appointed to represent the father until April 16, 2003.

Although this case involves a termination proceeding and not a dependency proceeding, it is comparable to G.A. v. Department of Children & Family Services, 857 So.2d 310 (Fla. 2d DCA 2003), and S.B. v. Department of Children & Family Services, 858 So.2d 1184 (Fla. 2d DCA 2003). See generally § 39.801(3)(d), Fla. Stat. (2002) (explaining procedure for involuntary consent in termination of parental rights cases). Accordingly, we reverse the order terminating the father’s parental rights and remand for further proceedings. This opinion does not require the trial court to alter custody or current visitation rights, but the trial court must review these issues and make a lawful decision as soon as possible following issuance of our mandate.

Reversed and remanded.

WHATLEY and CANADY, JJ., Concur.

      . See Fla. R. Juv. P. 8.305(b)(6).

      . See Fla. R. Juv. P. 8.320.

        .See Fla. R. Juv. P. 8.510(2).


text:
    Torrie O. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-0212.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2003.
    Rehearing Denied March 18, 2004.
    Robert Augustus Harper, Esq. and Michael Robert Ufferman, Esq. of Robert Augustus Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Torrie O. Smith, challenges the consecutive minimum mandatory sentences he received pursuant to section 775.087(2)(d), Florida Statutes (2000), the “10-20-Life” statute, for crimes involving a firearm. Appellant contends that, under the authority of Hale v. State, 630 So.2d 521 (Fla.1993), Palmer v. State, 438 So.2d 1 (Fla.1983), and other recent case law, the trial court was required to impose appellant’s minimum mandatory sentences concurrently because the convictions arose from the same criminal episode.

Appellant is correct in asserting that when minimum mandatory terms are required by the 10-20-Life statute, and when the convictions arise out of the same criminal episode, the minimum mandatory sentences must run concurrently. See, e.g., Perreault v. State, 853 So.2d 604, 606 (Fla. 5th DCA 2003); Wilchcombe v. State, 842 So.2d 198, 200 (Fla. 3d DCA 2003). However, because appellant did not raise this argument in the trial court, either during the sentencing hearing or in his subsequent rule 3.800(b)(2) motion, this issue is not preserved for review on direct appeal. See Carter v. State, 791 So.2d 525, 526-27 (Fla. 1st DCA 2001) (“A sentencing issue that has not been raised in the trial court either by an objection at the sentencing hearing or in a subsequent rule 3.800(b) motion will not be addressed on direct appeal.”); State v. Clay, 780 So.2d 269, 270 (Fla. 5th DCA 2001) (“In order to properly preserve an issue for appellate review, the issue ‘must be timely raised and ruled on by the trial court’ and ‘it must be sufficiently precise that it fairly appr[i]ses the trial court of the relief sought and the grounds for the objection.’ ”). Therefore, appellant’s sentences are affirmed. We also affirm as to appellant’s remaining issues without discussion.

AFFIRMED.

BOOTH, BENTON and LEWIS, JJ., concur.


text:
    George J. LOTT and Mary S. Lott, as Personal Representatives of the Estate of Jonathan S. Lott and Theresa L. Blakely, as Personal Representative of the Estate of Harold K. Blakely, Appellants, v. Lisa GOODKIND, Appellee.
    No. 3D02-3329.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing and Rehearing En Banc Denied March 10, 2004.

      Basil E. Dalack, West Palm Beach, for appellants.
    Ligman Martin and Michael R. Seward, for appellee.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

George and Mary Lott and Theresa Blakely appeal an adverse summary judgment in their wrongful death claim against Lisa Goodkind. We affirm.

Defendant-appellee Goodkind was the mother of 19-year-old John Carter. Carter had been placed on community control with the encouragement and assent of Goodkind and was permitted to live in Goodkind’s home. As is usual in this type of case, the case was assigned to a community control officer.

Subsequent to his release on community control, out of ill will from prior events Carter murdered John Lott, a former friend and the child of appellants George and Mary Lott, and Harold Blakely, the father of Carter’s former girlfriend and the husband of appellant Theresa Blakely. The estates of both victims brought claims seeking to hold Goodkind liable for the conduct of her adult son.

Appellants seek to base their claims on section 319 of the Restatement (Second) of Torts. That section states:

One who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if 'not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm

Under the plaintiff estates’ view of that section, Goodkind took charge of Carter upon his release. We disagree. Liability of the type described in section 319 has typically been imposed on persons having someone committed to their legal custody, such as a jailer or superintendent of a residential institution which has the ability to control the actions of its residents. See Nova University, Inc. v. Wagner, 491 So.2d 1116, 1117-18 (Fla.1986).

As explained in Carney v. Gambol, 751 So.2d 653 (Fla. 4th DCA 1999):

Generally, there is no duty to control the conduct of a third person to prevent him or her from causing physical harm to another. An exception arises where a special relationship exists between the actor and the third person. The special relationship, however, must include the right or the ability to control another’s conduct.

Id. at 654 (citations omitted).

In the present case, Carter was not committed to the custody of his mother. He was nineteen years old, legally an adult. Plainly he was placed with his mother by reason of the family relation, but the supervision responsibility was that of the community control officer.

As further explained in Carney:

With respect to the duty owed as a parent, we find that Defendants may not be held legally responsible for the conduct of their emancipated, adult child. We note that in those instances where a special relationship has been found imposing liability on a parent for conduct of a child, the duty to exercise control is limited to a minor child. Certainly, where there is no legal right to control a child, there can be no liability imposed on the parent.
No Florida decision has imposed liability upon the parents of an adult child for intentional acts simply because the child may be financially dependent on, or needs to reside with, his or her parents.

751 So.2d at 654 (citations omitted; emphasis in original).

In this case, Carter resided in Good-kind’s household with her consent, but he was not committed to her custody. Rather he was placed with the approval of the court and was under the supervision of a community control officer. We do not think that can be considered “taking charge” of Carter for purposes of a Section 319 analysis.

The plaintiffs also sought to present a claim that Goodkind had a duty to warn them of Carter’s potential actions. We reject that claim on the authority of Boynton v. Burglass, 590 So.2d 446 (Fla. 3d DCA 1991). Further, the claimed threat in this case was not a clear and specific threat such as the one at issue in Boynton.

While the present case is a tragic one, we conclude that there is no basis for civil liability against Ms. Goodkind. The summary judgment was correctly entered.

Affirmed.


author: RAMIREZ, J.

text:
    Blekley COICOU, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-271.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing and Certification Denied March 10, 2004.

      Bennett H. Brummer, Public Defender, and Harvey J. Sepler, Assistant Public Defender, for appellant.
    Charles J. Crist, Attorney General, and Marni A. Bryson, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Blekley Coicou appeals the lower court’s Final Judgment Adjudicating Guilt and Order Imposing Sentence. We reverse the conviction and sentence because the prosecution used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying robbery offense, but we remand with instructions to enter a judgment of conviction for attempted second-degree murder.

The State charged Coicou with a violation of section 782.051(1), Florida Statutes, attempted first-degree felony murder by attempting to commit a robbery against the victim, Christopher Artis, and as a separate act not an essential element of the robbery, shooting Artis in the chest. The robbery and shooting occurred during a drug transaction between Coicou, the drug seller, and Artis, the drug buyer.

The testimony at trial revealed that on April 6, 2002, through a man named Drex-ie James, Artis arranged to meet with Coicou and his friend, Lulu, to buy cocaine. They drove in Artis’ red Pontiac to Lulu’s house where they met with Coicou and Lulu in Coicou’s Lexus.

The deal was made, and Coicou left. Some time later, Coicou and Artis met again in front of Lulu’s house. Artis was in his Pontiac with Drexie James. Artis removed a paper bag full of money from the trunk of his car and walked over to Coicou’s car to get inside. Artis consensually handed Coicou the money, both men counted the money together, and Coicou put the money in his pocket. Artis testified that Coicou then showed him the bag of cocaine. When Artis stated he wanted to test the drugs, Coicou pulled out a gun and shot Artis in the chest, at the same time ordering him out of the Lexus. Coi-cou then left the scene with the $4,000.

After the state rested, the defense moved for a judgment of acquittal, arguing that there was no robbery because Artis consensually gave the money to Coicou. The trial court denied the motion. The defense presented its case, after which it again moved for judgment of acquittal, contending there was no proof of the underlying felony, the robbery, and that the essential elements of attempted felony murder were not proven. The trial court again denied the motion.

The trial court instructed the jury on attempted felony mur'der, pursuant to section 782.051, Florida Statutes, and that the shooting constituted a separate intentional act that was not an element of the charged robbery. The trial court also instructed the jury on attempted second-degree murder, attempted manslaughter, attempted homicide, and attempted voluntary manslaughter. There were no objections to these instructions.

The jury convicted Coicou of attempted felony murder with a firearm, specifically finding that Coicou used a firearm and that he committed a robbery. The trial court denied the defense motion for a new trial. Coicou was convicted and sentenced as a habitual felony offender to life imprisonment.

On appeal, Coicou contends that the trial court fundamentally erred by convicting him of attempted felony murder because the State used the same act, the shooting of the victim, to prove both the attempted felony murder and the underlying robbery offense. He argues that in order to constitute a robbery offense, the taking must be established by force, violence, or putting in fear, according to the statute. He contends that the same act which makes the offense here an armed robbery, shooting Artis, was also the act relied on by the State to prove the attempted first-degree felony murder. He argues that Florida law prohibits convicting a person of attempted felony murder using proof of an element essential to the underlying felony.

The State contends that the issue was not preserved for review. We disagree. The record reflects that Coicou adequately preserved the issue for review when he made both of his motions for acquittal, one after the state rested and the other after the defense rested. Coicou brought to the attention of the trial court his contention that.the State had not proven the essential elements of the charged crime (attempted first-degree felony murder) and the underlying felony allegation (robbery).

Furthermore, we agree with Coicou that the State did not prove the crime of attempted felony murder. The State charged Coicou with attempted first-degree felony murder under section 782.051(1), Florida Statutes, with robbery being the underlying offense. Section 782.051(1) states in relevant part:

(1) Any person who perpetrates or attempts to perpetrate any felony enumerated in s. 782.04(3) and who commits, aids,- or abets an intentional act that is not an essential element of the felony and that could, but does not, cause the death of another commits a felony of the first degree, punishable by imprisonment for a term of years not exceeding life, or as provided in s. 775.082, s. 775.083, or s. 775.084, which is an offense ranked in level 9 of the Criminal Punishment Code. Victim injury points shall be scored under, this subsection.

Thus, to be convicted of attempted first-degree felony murder, Coicou must have committed or attempted to commit an underlying enumerated felony and must have committed or aided in the commission of an intentional act which could have resulted in the victim’s death but which act is not an essential element of the underlying offense. The deadly act cannot be an essential element of the underlying felony.

According to section 812.13(1), Florida Statutes:

(1) Robbery means: the taking of money or other property' which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

Furthermore, section 812.13(3)(b), Florida Statutes, states:-

(b) An act shall be deemed “in the course of the taking” if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.

Id. (emphasis added). Here, Coicou took Artis’ money. Artis testified that he voluntarily handed the money to Coicou. The use of force occurred after Artis handed the money to Coicou. The use of force, the shooting, was itself an essential element of the underlying robbery and was not an independent act as required by section 782.051(1). It follows then that the robbery offense could not also be considered for the attempted felony murder charge. Without this additional proof of force, the State failed to prove the main charge against Coicou, the attempted felony murder charge. See State v. Blanton, 821 So.2d 440, 442 (Fla. 5th DCA 2002); Thompson v. State, 814 So.2d 1103, 1106 (Fla. 4th DCA 2002). Thus, the trial court erred in denying Coicou’s motion for judgment of acquittal.

Coicou next contends that because the State failed to prove one of the elements of attempted felony murder under section 782.051(1), his conviction and sentence must be reversed and he should be discharged. He is correct that his conviction and sentence for attempted felony murder should be reversed. However, we do not agree that he should be discharged.

Section 924.34, Florida Statutes (2001), states:

When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.

In addition, the Florida Supreme Court held in I.T. v. State, 694 So.2d 720 (Fla. 1997), that section 924.34 refers to both category 1 necessary lesser included offenses and category 2 permissive lesser included offenses. We thus have the authority to reduce Coicou’s conviction to a permissive lesser included offense. The evidence contained in the record supports a finding that Coicou acted in a manner which was imminently dangerous to the victim.- This supports a conviction of the lesser included offense of attempted second-degree murder. Mingo v. State, 680 So.2d 1079 (Fla. 3d DCA 1996); Hayes v. State, 564 So.2d 161, 163 (Fla. 2d DCA 1990).

Accordingly, we remand to the trial court with directions to enter a judgment of conviction for the offense of attempted second-degree murder. We further direct the trial court to resentence Coicou in accordance with this opinion.

Reversed and remanded with instructions.

      . The State charged Coicou with aggravated battery, possession of a firearm by a convicted felon, use of a weapon during the commission of a felony, and attempted felony murder. All charges were dropped except for the attempted felony murder charge.


author: SCHWARTZ, Chief Judge.

text:
    ATM LIMITED and Ali Marabik Mohamed, Appellants, v. CAPORICCI FOOTWEAR LTD., CORPORATION, Appellee.
    No. 3D02-3375.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2003.
    Rehearing and Rehearing En Banc Denied March 10, 2004.
    Louis C. Arslanian (Fort Lauderdale), for appellants.
    Frank M. Marks, Coral Gables, for ap-pellee.
    Before SCHWARTZ, C.J., and FLETCHER, J., and NESBITT, Senior Judge.
   SCHWARTZ, Chief Judge.

ATM Limited and Ali Marabik Mohamed appeal, on purely jurisdictional grounds, from a judgment entered against them after a bench trial.

First, we agree that the judgment against ATM Limited is void and must be set aside because it was never made a party to the action below. Norville v. BellSouth Advertising & Pub. Corp., 664 So.2d 16 (Fla. 3d DCA 1995), review denied, 675 So.2d 119 (Fla.1996).

We do not, however, agree with the contention that the judgment is infirm on the ground that the trial court lost jurisdiction over the cause as a whole when it entered an order of dismissal pursuant to Florida Rule of Civil Procedure 1.070(j) some two years before the judgment. It is true that, after the final dismissal of a claim or complaint, either with or without prejudice, the trial court is without further “case jurisdiction” and cannot render a judgment of any kind in the case. See Capital Bank v. Knuck, 537 So.2d 697 (Fla. 3d DCA 1989); Derma Lift Salon, Inc. v. Swanko, 419 So.2d 1180 (Fla. 3d DCA 1982); 1 Fla. Jur.2d Actions § 220 (1997). This rule does not apply here, however because the cited order, which states that the cause “shall stand dismissed” in the absence of an appropriate “motion showing good cause” why “service was not effectuated” is not a final order under this doctrine. See United Water Fla., Inc. v. Florida Pub. Serv. Comm’n, 728 So.2d 1250 (Fla. 1st DCA 1999)(hold-ing that order which purported to become final on a certain future date in the absence of a petition for a formal hearing was not a final order); Department of Transp. v. Post, Buckley, Schuh & Jemi-gan, 557 So.2d 145 (Fla. 1st DCA 1990)(holding that order, which purported to dismiss cause for failure to prosecute subject to reinstatement for good cause shown by motion, was not final order dismissing the case). See Newman v. Newman, 858 So.2d 1273 (Fla. 1st DCA 2003). See generally, Edward L. Nezelek, Inc. v. Sunbeam Television Corp., 413 So.2d 51 (Fla. 3d DCA 1982), review denied, 424 So.2d 763 (Fla.1982). Because the court therefore retained jurisdiction to enter the final judgment on appeal, as against Mohamed, the judgment is affirmed.

Affirmed in part, reversed in part.

      . The order provided:
      ORDER OF DISMISSAL
      "[I]n accordance with Florida Rules of Civil Procedure, Rule 1.070(j), this cause is DISMISSED WITHOUT PREJUDICE, with leave to show good cause why service was not effectuated. Any motion showing good cause must be made and scheduled for hearing on this Court's Motion Calendar within 30 days from the date of this Order, otherwise this cause shall stand dismissed. [e.s.]”