text:
    Doyle L. NEWTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3918.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Westerheide v. State, 831 So.2d 93 (Fla.2002); Houtsma v. State, 828 So.2d 1035 (Fla. 1st DCA 2002) (citing Hudson v. State, 825 So.2d 460 (Fla. 1st DCA 2002)).

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


source: Caselaw Access Project

author: LEWIS, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Frederick OWENS, Appellee.
    No. 1D02-0370.
    District Court of Appeal of Florida, First District.
    July 3, 2003.

      Charlie Crist, Attorney General; Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender; David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellee.
   LEWIS, J.

The State seeks review of the downward departure sentence imposed upon appellee, Frederick Owens, by the trial court over the State’s objection. The trial court gave two reasons for the downward departure: first, the victims’ need for restitution outweighed the State’s interest in imprisonment, and second, that Owens seemed amenable to drug rehabilitation. Concluding that the first reason for departure is not supported by competent, substantial evidence and that the second reason for departure is not a valid legal ground for a downward departure sentence, we reverse and remand for resentencing in accordance with the sentencing guidelines.

By information, the State charged Owens with five counts of burglary, two counts of third-degree grand theft, and three counts of felony petit theft. Owens entered a straight up plea of guilty to all of the charges. At the sentencing hearing, Owens presented testimony from his family members in favor of mitigation of his sentence to probation. This testimony focused on Owens’ need for and desire to seek treatment for his drug addiction. Owens presented no evidence on the issue of restitution, although the State did request that Owens be given a probationary period, in addition to a fifteen-year prison sentence, during which time he could make restitution to his victims. The trial court accepted Owens’ plea and entered a downward departure sentence consisting of twenty-five years’ probation. The trial court also ordered Owens to pay a fine, court costs, and attorney’s fees, and to make restitution to the victims of his crimes. This appeal followed.

The decision to impose a downward departure sentence is a two-part process. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). First, the trial court must determine whether there is a valid legal ground for departure and whether there is adequate factual support for that ground in the pending case. Id. Legal grounds include those set forth in case law and statutes, although the mitigating circumstances listed in section 921.0026(2), Florida Statutes (2000), are not exclusive of other valid legal grounds. The facts supporting the legal grounds must be proven at trial by a preponderance of the evidence. § 921.001(4)(a)6., Fla. Stat. (2000). The trial court’s decision regarding the first step will be affirmed on appeal if the reason given by the trial judge is valid and supported by competent, substantial evidence. Banks, 732 So.2d at 1067; see also State v. Clay, 780 So.2d 269, 270 (Fla. 5th DCA 2001). If the trial court finds that the initial requirements for a downward departure are satisfied, the second step requires the trial court to exercise discretion as to whether departure is truly the best sentencing option for the defendant in the pending case. Banks, 732 So.2d at 1068. With respect to the second step, the trial court is afforded considerable discretion in making its decision and it will be reversed only if the appellate court finds the trial court abused its discretion. Id.

The trial court’s first reason for departure, that the need for restitution outweighed the need for a prison sentence, can be a valid legal reason for a departure sentence. See §§ 921.0016(4)(e), 921.0026(2)(e), Fla. Stat. (2000); see also Demoss v. State, 843 So.2d 309, 312 (Fla. 1st DCA 2003); State v. White, 755 So.2d 830, 831 (Fla. 5th DCA 2000). In weighing the need for restitution versus the need for imprisonment, a court must take into consideration all of the relevant factors, including the victim’s need for restitution. Demoss, 843 So.2d at 312 (citing Banks, 732 So.2d at 1068-69). Where restitution is the ground relied upon in issuing a departure sentence, there must be competent, substantial evidence showing that the victim’s need for restitution outweighs the need for a prison sentence. Demoss, 843 So.2d at 312; White, 755 So.2d at 831-32 (citing Banks, 732 So.2d at 1067). Evidence in support of restitution includes findings such as the nature of the victim’s loss, the effectiveness of restitution, and the consequences of imprisonment. State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000).

Here, the record is devoid of any evidence that the victims of Owens’ crimes had requested restitution or expressed any particular need for restitution. Additionally, there was no evidence presented of a pressing need for restitution in place of incarceration, or that a downward departure sentence was required to ensure that restitution would, in fact, be made. Instead, testimony presented by Owens in support of a downward departure at the sentencing hearing focused solely on Owens’ struggle with drug addiction and his family’s desire that he be rehabilitated and allowed to return home. See State v. Schillaci, 767 So.2d 598, 599 (Fla. 4th DCA 2000) (reversing the downward departure sentence based on the need for restitution outweighing the need for incarceration, where defense counsel failed to present any evidence that the victims requested restitution or expressed any particular need for restitution); State v. Amodeo, 750 So.2d 664, 667 (Fla. 5th DCA 1999) (holding that in the absence of testimony or a showing of the need for restitution by the burglary victims or evidence that the defendant would be able to provide restitution if spared a longer sentence, the downward departure based on the need for restitution is improper). Furthermore, as the State requested, there is no reason that restitution could not be made a condition of any post-incarceration probation. See §§ 775.089(3)(a), (4), 948.03(1)(a), (e) Fla. Stat. (2000); see also White, 755 So.2d at 832. Therefore, the first reason given by the trial court for departure fails step one of the Banks two-step process as it is not supported by competent, substantial evidence. See White, 755 So.2d at 831-32; see also Schillaci, 767 So.2d at 600.

The second reason for departure, that Owens seemed amenable to drug rehabilitation, “does not, under any circumstances, justify a downward departure from the sentence recommended under the sentencing guidelines.” §§ 921.0016(5), 921.0026(3) Fla. Stat. (2000); see also State v. Ford, 739 So.2d 629, 629 (Fla. 3d DCA 1999). As such, the second reason for departure “contravenes the plain language of the statute.” See State v. Thompson, 844 So.2d 814 (Fla. 5th DCA 2003) (citing section 921.0026(3), Fla. Stat.). Furthermore, Owens concedes on appeal that drug rehabilitation was not a valid legal ground upon which to issue a departure sentence. Thus, the trial court’s second reason for departure also fails step one of Banks, as it does not constitute a valid legal ground for a downward departure sentence and cannot be affirmed.

Turning now to step two of the Banks two-step process, the trial judge is required to determine not whether he can depart, but after weighing the totality of the circumstances, whether he should depart. See Banks, 732 So.2d at 1068. Because the trial court’s reasons for departure failed step one of the Banks two-step process, we need not determine whether the trial judge abused his discretion under step two.

Accordingly, we reverse the sentence on appeal and remand for resentencing without downward departure.

REVERSED and REMANDED for re-sentencing.

VAN NORTWICK and HAWKES, JJ., concur.


author: VAN NORTWICK, J.

text:
    Lawrence CARVER, Appellant, v. STATE of Florida, DIVISION OF RETIREMENT, Appellee.
    No. 1D02-1935.
    District Court of Appeal of Florida, First District.
    July 3, 2003.

      Michael E. Seelie, P.A., Jacksonville, for Appellant.
    Thomas E. Wright, Senior Attorney, Department of Management, Tallahassee, for Appellee.
   VAN NORTWICK, J.

Lawrence Carver appeals a final order of the State Retirement Commission sustaining the decision of the State Retirement Director, which denied Carver disability retirement benefits. Carver contends that the Commission applied an incorrect legal standard in denying his claim on the ground that there was no medical evidence that he was permanently totally disabled. We agree. In requiring Carver to supply medical evidence that he is permanently totally disabled, the Commission applied a legal standard which is contrary to this court’s interpretation of section 121.23(2)(a), Florida Statutes, in Nichols v. Division of Retirement, 637 So.2d 261, 262 (Fla. 1st DCA 1994). Accordingly, we reverse and remand for further proceedings.

Carver, who was 45 years old at the time of the hearing below, worked for the Baker County School Board as an outdoor maintenance, gardening and landscape person using heavy equipment and performing physical labor. While hitching a trailer to a truck on. December 16, 1998, Carver injured his back. He sought medical treatment and continued to work until October 15, 1999, when his back pain required him to stop working. Ultimately, Carver was treated by an orthopedic surgeon, who performed a laminectomy and fusion surgery on Carver in January 2000. Carver reached maximum medical improvement in May 2001, and the doctor gave him a 12 percent permanent impairment rating. The doctor limited Carver to light work with occasional lifting of no more than 20 pounds and suggested he avoid prolonged periods of standing or sitting. Carver’s family practice physician opined that Carver’s back problems limited him to sedentary work and lifting of no more than 10 pounds. Because the employer could not accommodate his limitations, Carver lost his job.

At the request of the Department of Education, Vocational Rehabilitation Services, in September 2001 Carver was referred to Jerry Alpert, a vocational rehabilitation counselor, for a vocational evaluation. The record reflects that Mr. Alpert is a certified licensed mental health counselor, vocational rehabilitation counselor, disability management specialist, certified pain management specialist, and certified case manager, who has provided expert opinion in many courts and has never been disqualified as an expert in the field of vocational testing, training and rehabilitation. According to Mr. Alpert, based on Carver’s medical condition, his test scores, his transfer skills and the labor market, Carver is vocationally permanently totally disabled. Mr. Alpert opined that there was no job utilizing the definition of useful and efficient service in the controlling statutes which Carver could perform within the State of Florida employment system. He acknowledged that Carver might be able to perform sheltered employment under a benevolent employer, but he opined that sheltered employment is not useful and efficient service.

Carver applied for disability retirement benefits. Because Carver did not submit medical evidence that he was totally and permanently disabled as required by section 121.091(4)(c), Florida Statutes, the State Retirement Director denied his application for both regular and in-line-of-duty disability retirement benefits.

Carver requested a hearing before the State Retirement Commission. At the final hearing, claimant testified that he would like to work and that he has looked for work, but he cannot find a job. He takes medicine for his arthritis, a painkiller, and also a muscle relaxer, which makes him very sleepy. According to Carver’s testimony, he hurts from the time he wakes up until the time he goes to bed. On a good day, he can get up, but on a bad day, he can’t even get out of bed. He has a constant limp and cannot walk a city block without stopping four times. Carver’s mother and sister buy his groceries, clean his house and drive him where he needs to go.

Mr. Alpert’s deposition was submitted to the Commission for consideration. The Commission voted 2 to 1 to uphold the decision of the State Retirement Director. In rejecting Carver’s disability, the Commission stated in pertinent part:

14. [Carver’s orthopedic surgeon] admits that Mr. Carver could not return to a heavy physical labor job or operate heavy equipment. He limited Petitioner to light work with occasional lifting of no more than twenty pounds and suggested he avoid prolonged periods of standing or sitting. However, [the surgeon] did not find Mr. Carver to be totally and permanently disabled. Instead he merely gave him a 12 percent impairment rating based on the laminectomy. 15. Because the medical evidence establishes Mr. Carver is capable of light duty or sedentary work, he has not established that he is medically totally and permanently disabled. Therefore the evidence does not rise to a sufficient level to overturn the state retirement director’s denial of the claim for total and permanent in line of duty benefits.

In order to prevail before the State Retirement Director, section 121.091(4)(b), Florida Statutes (1997), requires the claimant to demonstrate with medical evidence that he is permanently totally disabled from rendering useful and efficient service as an employee. An employee who is unsuccessful before the Director, however, is entitled to a de novo review before the State Retirement Commission. Before the Commission, section 121.23(2)(a), provides, in pertinent part, that:

In cases involving disability retirement, the State Retirement Commission shall require the member to present competent medical evidence and may require vocational evidence before awarding disability retirement benefits.

Construing section 121.23(2)(a), in Nichols this court held that this provision does not require the claimant to present a physician’s certificate or opinion that he or she is totally and permanently disabled to prevail before the Commission. Nickols, 687 So.2d at 262-68. While the statute does require medical evidence of the impairment, the Nickols court explained that the Commission has broader discretion than the Director and may determine whether an applicant is permanently totally disabled based upon medical testimony, vocational testimony, and any other pertinent evidence before it. Id.

Appellee argues that the Nickols case is not controlling, relying instead upon its own rule 60 R-1.00481, Florida Administrative Code. Subsection (1) of that rule provides that “[c]ompetent medical evidence of total and permanent disability is required for a determination of disability retirement eligibility.” This rule was implemented in 1993, however, before this court’s 1994 decision in Nickols which expressly held that section 121.23(2)(a) does not require an opinion of a physician certifying total and permanent disability before an employee may qualify for disability benefits. Nickols, 637 So.2d at 262-63. Because rule 60R-1.00481(1) conflicts with the meaning of the statute recognized by this court in Nickols, this court is not required to give that rule force and effect. Willette v. Air Products, 700 So.2d 397, 399 (Fla. 1st DCA 1997)(recognizing the proposition that an administrative rule is presumptively valid until invalidated in a section 120.56 rule challenge, but expressly holding that such proposition “must give way in judicial proceedings to any contradictory statute that applies.”). See also Cortes v. State Board of Regents, 655 So.2d 132, 136 (Fla. 1st DCA 1995)(explain-ing that the legislature may authorize administrative agencies to interpret, but never to alter statutes).

In addition, we agree with Carver that the Commission misunderstands the difference between an impairment rating and disability. In the order on appeal, the Commission concluded that Mr. Carver was not entitled to recover, reasoning that because his orthopedic surgeon gave him a 12 percent impairment rating, the surgeon did not find Carver to be totally and permanently disabled. In Glisson v. State Department of Management Services, Division of Retirement, 621 So.2d 543 (Fla. 1st DCA 1993), this court rejected the agency’s ruling that a disability retirement claimant could not have a total and permanent disability where the medical evidence showed that he had sustained a 10 percent permanent impairment. The Glisson panel explained the differences between the terms “impairment” and “disability,” as follows:

The accurate and proper use of medical information to assess impairment depends on the recognition that, whereas impairment is a medical matter, disability arises out of the interaction between impairment and external demands, especially those of an individual’s occupation. As used in the Guides, “impairment” means an alteration of an individual’s health status that is assessed by medical means; “disability,” which is assessed by nonmedical means, is an alternation of an individual’s capacity to meet personal, social, or occupational demands or statutory or regulatory requirements. Stated another way, “impairment” is what is wrong with a body part or organ system and its functioning; “disability” is the gap between what the individual can do and what the individual needs or wants to do.

Id. at 545 (emphasis theirs; quoting the Guides to the Evaluation of Permanent Impairment at 1 (rev.3d ed.1990)). Thus, while the determination of impairment is a medical matter, the determination of disability is not solely a medical issue, but involves using non-medical evidence as well.

For these reasons, we are compelled to reverse the final order of the Commission “on the ground that the final order appears based in part on an erroneous holding that appellant was required to present a medical opinion that he was unable to render useful and efficient service within the State Retirement System.” Nichols, 637 So.2d at 264. We certify the same issue of great public importance certified in Nichols, id. at 263:

WHERE A CLAIMANT SEEKS TOTAL AND PERMANENT DISABILITY BENEFITS IN A PROCEEDING UNDER SECTION 121.23, FLORIDA STATUTES, WHAT MEDICAL EVIDENCE IS THE CLAIMANT REQUIRED TO PRESENT BEFORE THE STATE RETIREMENT COMMISSION?

REVERSED and REMANDED for further proceedings.

LEWIS and HAWKES, JJ., concur.

      . Section 121.091(4)(c), Florida Statutes (1997), requires an applicant to supply the Director with “the certification of the member's total and permanent disability by two licensed physicians of the state.”

      . On appeal, the Division asserts that it never accepted Mr. Alpert as an expert and argues that his opinion is insufficient. However, because the Division failed to lodge any objection either in the deposition or at the hearing when the deposition was entered into evidence, it may not raise this issue now. Above All Drywall v. Shearer, 651 So.2d 195, 196 (Fla. 1st DCA 1995)(ruling that because the employer/servicing agent made no objection to, or moved to strike the expert testimony for lack of competency, the error was not properly preserved for appellate review).

      .The 1997 version of section 121.23(2)(a) is different in some respects from the 1991 version interpreted in Nichols. Nevertheless, the 1991 statute which the Nichols court construed and the 1997 statute applicable to Mr. Carver's case contain the same pertinent language that the Commission "shall require the member to present competent medical evidence and may require vocational evidence before rewarding disability retirement benefits.”


author: HAWKES, J.

text:
    Keith MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0667.
    District Court of Appeal of Florida, First District.
    July 3, 2003.

      Appellant, pro se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, J.

Appellant appeals the summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Appellant argues trial counsel was ineffective for failing to advise him that he could be sentenced as a prison releasee reoffen-der upon conviction at trial. We reverse.

Appellant’s sworn motion alleges he rejected an offer to plea to a lessor included offense with a sentence of 80.5 months (6 years, 8% months) in prison. The trial court told Appellant the plea was for “about half of what you could get if convicted,” and “you could get, it sounds like, about 13 years state penitentiary.” Appellant maintained his innocence, stating “I didn’t do it,” and requested a trial. Following a jury trial, Appellant was found guilty of second-degree murder and sentenced to 15 years’ imprisonment as a prison releasee reoffender. At the sentencing hearing, Appellant’s counsel indicated she never informed Appellant of the possibility that he could receive an enhanced sentence, and Appellant stated he was “pretty sure that [he] would have made another decision” had he known he could receive a 15-year prison releasee reoffender sentence.

Appellant argues he was willing to risk going to trial if the maximum sentence he could receive was a little over 13 years in prison, but he would not have risked trial had he known he faced 15 years in prison as a prison releasee reoffender. Thus, Appellant argues, had he been aware that he could have received this enhanced sentence, he would have accepted the plea. Appellant alleges a facially sufficient claim of ineffective assistance of counsel. A facially sufficient claim that counsel was ineffective for failing to convey a plea offer requires Appellant to allege: (1) counsel failed to relay a plea offer or misinformed him about the penalty faced, (2) had he been correctly advised he would have accepted the plea, and (3) the plea would have resulted in a lesser sentence. See Cottle v. State, 733 So.2d 963, 967 (Fla.1999).

In its order summarily denying post conviction relief, the trial court attached colloquies from the in-court plea offer and the sentencing hearing, both indicating Appellant maintained his innocence. The trial court also attached the notice signed by Appellant upon his release from prison, acknowledging he would be subject to enhanced sentencing if he committed this crime, or other enumerated offenses. Although these attachments are evidence, they do not conclusively refute Appellant’s allegations as required to support summary denial.

There is no dispute that Appellant established the first and third prongs of the test. Although Appellant was aware of the plea offers, he was uninformed by counsel of the enhanced penalty he faced and, had he accepted one of those offers, it would have resulted in a lesser sentence. Thus, the only issue is whether Appellant can establish he would have accepted the plea had his attorney told him of the potential prison releasee reoffender sentence. An evidentiary hearing is necessary to make this determination. See id. at 969 n. 6 (emphasizing that “if the claim is sufficiently alleged,” the court should order an evidentiary hearing); see also Eristma v. State, 766 So.2d 1095, 1096 (Fla. 2d DCA 2000); Lewis v. State, 751 So.2d 715, 716 (Fla. 5th DCA 2000). At the evidentiary hearing, the trial court will have the opportunity to receive evidence and evaluate the credibility of any witnesses in deciding whether Appellant would have accepted the plea, or would have continued to state, “I didn’t do it,” and insist on trial.

REVERSED and REMANDED.

BOOTH and VAN NORTWICK, JJ„ concur.


author: PER CURIAM. PADOVANO, J.,

text:
    STATE of Florida, Appellant, v. Frank MITCHELL, Appellee.
    No. 1D03-1518.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, Second Judicial Circuit, and Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellee.
   ON MOTION FOR REVIEW OF ORDER TO STAY

PER CURIAM.

Appellee, Frank Mitchell, requests review, pursuant to Florida Rule of Appellate Procedure 9.310(f), of the trial court’s order denying appellee’s motion to vacate the automatic stay provided for in Florida Rule of Appellate Procedure 9.310(b)(2) and seeks the reversal of such. In his motion for review, appellee contends that the trial court erred in denying his motion to vacate the stay because, while the commitment of sexually violent predators under the Jimmy Ryce Act has been deemed to be civil in nature, such commitment during the pendency of the State’s appeal constitutes a serious deprivation of a defendant’s liberty interests. Concluding that the automatic stay provision set forth in rule 9.310(b)(2) is applicable to civil commitment proceedings brought under the Jimmy Ryce Act when the State appeals the lower court’s dismissal of the petition seeking commitment, we affirm the trial court’s order.

In the instant case, the State sought to civilly commit appellee as a sexually violent predator pursuant to what is commonly known as the Jimmy Ryce Act, sections 894.910-394.931, Florida Statutes (2000) (entitled “Involuntary Civil Commitment of Sexually Violent Predators”). The trial court found that there was probable cause to believe that appellee was a sexually violent predator. Thereafter, the trial court dismissed the proceeding for lack of jurisdiction and the State filed a notice of appeal. Appellee subsequently filed a motion with the trial court to vacate the automatic stay under rule 9.310(b)(2). However, the trial court denied the motion, stating that the issue presented was one of first impression in Florida and determining that it was unable to find that the State had no likelihood of success on appeal.

Rule 9.310(b)(2) provides that “[t]he timely filing of a notice shall automatically operate as a stay pending review, except in criminal cases, when the state, any public officer in an official capacity, board, commission, or other public body seeks review. ...” The statute and the case law construing the Jimmy Ryce Act make it clear that the commitment proceedings under the Jimmy Ryce Act are civil in nature. See, e.g., Westerheide v. State, 767 So.2d 637, 648 (Fla. 5th DCA 2000) (holding that the Jimmy Ryce Act is civil in nature and that confinement is for treatment and the protection of the public, not punishment), approved by 831 So.2d 93 (Fla.2002). Moreover, section 394.9155(1), Florida Statutes (2000), provides that the Florida Rules of Civil Procedure apply to all civil commitment proceedings for sexually violent predators unless otherwise specified. It has also been observed that automatic stays are available only in civil cases and that “[s]ubject to the exception for criminal cases, rule 9.310(b)(2) makes no distinction as to the type of case in which a public party is entitled to an automatic stay.” See Philip J. Padovano, Florida Appellate Practice § 12.5 at 184 (2003 ed.). Although, the automatic stay provision has been held inapplicable to discretionary review proceedings, see, e.g., State, Department of Health and Rehabilitative Services v. E.D.S. Federal Corporation, 622 So.2d 90 (Fla. 1st DCA 1993) and City of Miami v. Arostegui, 616 So.2d 1117 (Fla. 1st DCA 1993), in the instant case, the State has the right to appeal the final order of dismissal. Accordingly, because the commitment of sexually violent predators has been held to be civil in nature and because rule 9.310(b)(2) applies to civil cases, we conclude that rule 9.310(b)(2) is applicable to this appeal.

In State v. Kobel, 757 So.2d 556, 557 (Fla. 4th DCA 2000), the State sought a writ of certiorari to review a trial court order that directed the release of a detainee under the Jimmy Ryce Act. The Fourth District Court of Appeal stayed that portion of the trial court’s order that required the detainee’s release and issued an order to show cause. Id. at 559. To maintain the status quo, the court continued the stay on the condition that an adversarial hearing be held as previously scheduled. The court set forth that once the finding of probable cause had been made, the trial judge was required to order that the detainee “ ‘be maintained in custody and held in an appropriate secure facility for further proceedings in accordance’ with the [Jimmy Ryce] Act, Part V of Chapter 394, Florida Statutes (1999). § 394.9135(3), Fla. Stat. (1999).” Id. at 563.

Even if we were to determine that the automatic stay provision does not apply to this appeal, Kobel suggests that the detainee still would not be eligible for release based on the mandatory provision of section 394.915(5), Florida Statutes, which sets forth that after a court finds probable cause, “the person must be held in custody in a secure facility without opportunity for pretrial release or release during the trial proceeding.” Here, the trial court made a finding of probable cause that appellee was a sexually violent predator. Although the trial court later dismissed the commitment petition, the effectiveness of that order is not final because the State has taken this appeal.

As observed in Meadows v. Krischer, 763 So.2d 1087, 1091 n. 4 (Fla. 4th DCA 1999), this case demonstrates the difficulty courts have had in fashioning procedures on a case by case basis to implement the Jimmy Ryce Act and:

underscore[s] the need for the Florida Supreme Court to appoint an appropriate committee to fashion comprehensive procedural rules for the implementation of substantive requirements of the Jimmy Ryce Act for those situations where the application of the Rules of Civil Procedure would be impracticable and where the statute is silent as to procedure.

As appellee continues to be held in detention, we sua sponte expedite consideration of this case on its merits.

Because we share the serious concerns for due process expressed in the dissent, we certify the following question to the Florida Supreme Court to be of great public importance:

WHETHER THE STATE IS ENTITLED TO THE BENEFIT OF THE AUTOMATIC STAY PROVISION OF RULE 9.310(b)(2) ON APPEAL IN A CIVIL COMMITMENT PROCEEDING BROUGHT PURSUANT TO PART V OF CHAPTER 394, FLORIDA STATUTES, WHEN THE TRIAL COURT HAS DISMISSED THE PETITION SEEKING COMMITMENT.

AFFIRMED; QUESTION CERTIFIED.

VAN NORTWICK and LEWIS, JJ., concur.

PADOVANO, J., dissents with written opinion.

PADOVANO, J.,

dissenting.

I do not think that the automatic stay provision in rule 9.310(b)(2) can be applied in an appeal from an order dismissing a petition for involuntary commitment under the Jimmy Ryce Act, because the effect of the stay in such a case would be to detain a person in custody without due process of law. For this reason, I am unable to join in the majority’s decision to keep the stay in place in the present case.

The power to detain an individual for involuntary civil commitment is subject to certain well-defined constitutional limitations. As the Supreme Court explained in Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992), the “freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause.” This view is reflected in other Supreme Court opinions, as well. Earlier, the Court said, “[fit is clear that commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection.” Jones v. United States, 463 U.S. 354, 361, 103 S.Ct. 3043, 77 L.Ed.2d 694 (1983) (quoting Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979)). These statements plainly illustrate that we are dealing here not only with the applicability of a procedural rule, but also with an important issue of constitutional law.

Statutes authorizing civil commitment of sexually violent predators have been upheld primarily because they require a judicial finding that a person suffers from a condition that makes him dangerous to others. For example, in Kansas v. Hendricks, 521 U.S. 346, 357-358, 117 S.Ct. 2072, 138 L.Ed.2d 501 (1997), the Court concluded that the statute at issue did not offend the Due Process Clause, because it “requires evidence of past sexually violent behavior and a present mental condition that creates a likelihood of such conduct in the future if the person is not incapacitated.” The Florida Supreme Court has rejected a due process challenge to the Jimmy Ryce Act for the same reason. See Westerheide v. State, 831 So.2d 93, 106 (Fla.2002). The constitutional objections to commitment can be overcome, but only if the government complies with the applicable procedures and evidentiary standards, and if the court makes the findings of dangerousness required by the statute.

In the present case there is no judicial finding that could be used to support the appellee’s continued detention. The appel-lee has completed the sentence he was serving when the petition for involuntary commitment was filed. His detention may have been justified at one time by the trial court’s finding of probable cause in the civil commitment proceeding, but that finding has now been undermined by the court’s final order dismissing the case. The appellee is now being held in custody solely on the authority of the stay imposed by rule 9.310(b)(2).

This stay is not based on a finding of dangerousness, or upon any judicial finding for that matter. Rather, the stay has been imposed automatically by operation of law, merely because the state has chosen to appeal the dismissal of its petition. I believe that confinement under the Jimmy Ryce Act must rest on something much more substantial than the effect of a mechanical rule that goes into effect by the unilateral action of the state.

The majority takes the view that the automatic stay effectively restores the trial court’s earlier finding of probable cause. That is a logical way to construe the effect of the rule, but it does not entirely resolve the constitutional problem presented by this case. Section 394.916(1), Florida Statutes (2002), provides that “[wjithin thirty days after the determination of probable cause, the court shall conduct a trial to determine whether the person is a sexually violent predator.” The imposition of the automatic stay would extend this time period indefinitely. Although the court has expedited the appeal, that is not an adequate remedy for a person who is detained without authority. This is a plenary appeal from a final order. Despite our best efforts to expedite the decision, we could not ensure that the appellee will not be held beyond the thirty-day time limit set by section 394.916(1).

The statutory time period for which a person can be held in custody pending trial on a petition for involuntary commitment is not a mere procedural requirement. Except in the limited circumstances listed in the statute itself, the time period cannot be altered or extended. In State v. Goode, 830 So.2d 817, 823 (Fla.2002), the Florida Supreme Court held that the thirty-day time limit in section 394.916(1) is mandatory. The court explained that “based on the importance of the obvious liberty rights at stake,” the Legislature must have intended that there should be “scrupulous compliance” with the thirty-day limit. Id. at 826.

The Jimmy Ryce Act contains no provision addressing the rights of the respondent during an appeal by the state. The Legislature may have overlooked the possibility of an appeal by the state, but it is just as likely the Legislature believed that a person who is exonerated in the trial court should not be in custody at all. I am not certain of the Legislature’s intent or lack of intent, but I am certain that the courts should not attempt to fill in the blank by applying a mechanical rule of procedure that would allow for a detention beyond the period of time authorized by statute. The constitutional validity of the involuntary commitment process depends on the requirements of the statute. It follows that the courts should not deviate from the statute by extending the allowable time for detention.

My disagreement with the majority is based entirely on constitutional grounds, but it is also worth mentioning that rale 9.310(2)(b) was never meant for a situation like this. The original purpose of the rale was to enable the state to maintain the status quo while avoiding the unnecessary expense of providing a supersedeas bond. A litigant who obtains a money judgment against the state should have no fear that the judgment will be uncollectible if the state loses the appeal. The state will always be subject to the jurisdiction of the court and a bond is not required because the state is a solvent litigant. These considerations, which prompted the adoption of the automatic stay provision in rule 9.310(b)(2), are not even remotely applicable to an involuntary commitment proceeding. In such a case the stay would not preserve the status quo; it would actually change it. A person who could only be held for thirty days under the statute would be held, by the operation of the stay, for an indefinite period of time until the appeal is resolved. That is what occurred in the present case.

Furthermore, if rale 9.310(b)(2) can be applied here, it would put the state in an even better position than it would have been in had it appealed the dismissal of a criminal charge. Rule 9.140(h)(3) provides that an incarcerated defendant charged with a bailable offense is entitled to release on recognizance when the state appeals. Of course, the state can argue for detention but it would then have the burden. In this case, we have placed the burden on the detainee to show why he should be released.

The state points out that the Jimmy Ryce Act has been in effect since 1999 and that the appellate rules committee has not seen fit to modify rale 9.310(b)(2). Inaction might create a useful implication if we were interpreting a statute enacted by the Legislature, but I do not think that we can ascribe the same kind of intent to a rules committee. The committee does not make the rules; it merely recommends them to the supreme court. There could be many reasons why the committee has not sought to modify the rale. Perhaps the committee never envisioned that someone would try to use it in this way. In any event, I believe that the responsibility for determining whether a rale can be constitutionally applied lies with the courts, not with the rales committee.

For these reasons, I respectfully dissent.

      . The petition was filed on November 13, 2001, the day before the appellee was scheduled to be released from custody on a four-year sentence.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Zakawat RAJAH, Appellee.
    No. 1D02-2902.
    District Court of Appeal of Florida, First District.
    July 3, 2003.

      Charlie Crist, Attorney General and Edward C. Hill, Jr., Assistant Attorney General, Tallahassee, for Appellant.
    Allan H. Kaye, Gainesville, for Appellee.
   PER CURIAM.

AFFIRMED. Oymayan v. State, 765 So.2d 812 (Fla. 1st DCA 2000).

VAN NORTWICK, LEWIS AND HAWKES, JJ., concur.


text:
    Moses JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0626.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Nancy A. Daniels, Public Defender, and Michael Rayne, Assistant Public Defender, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The amended petition seeking a belated appeal of the judgment and sentence imposed on January 15, 2003, in the Leon County Circuit Court case number R2001-3190, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for the appointment of counsel, the trial court shall appoint counsel to represent petitioner on appeal.

BOOTH, BENTON and POLSTON, JJ., concur.


text:
    Raymond TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0391.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Dennis E. Boothe of Dennis E. Boothe, P.A., Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Raymond Turner’s request for a belated appeal from the judgment and sentence rendered on October 1, 2002, in Columbia County Circuit Court case number 01-560-CF is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Robert P. YORKE, Appellant, v. Rhonda YORKE, Appellee.
    No. 1D02-5286.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Robert A. Sandow, Live Oak, for Appellant.
    David M. Robertson of Brannon, Brown, Haley, Robinson & Bullock, P.A., Lake City, for Appellee.
   PER CURIAM.

Robert P. Yorke seeks review of the trial court’s order that granted the amended petition for modification filed by Rhonda Yorke, the former wife, thereby reducing her child support obligation. Although the amended petition raised material issues of fact, only argument of counsel, and no evidence, was presented at the hearing on the amended petition. Appellant argues that the entry of the order without the benefit of evidence was a denial of due process constituting reversible error. See Rucker v. City of Ocala, 684 So.2d 836 (Fla. 1st DCA 1996). In response, appel-lee has filed a “Consent Motion to Reverse and Remand Matter,” which this court treats as a concession of error. Accordingly, we reverse and remand this matter for further proceedings.

KAHN, WEBSTER and VAN NORTWICK, JJ., concur.


text:
    Ryan Scott BURKHARDT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-1429.
    District Court of Appeal of Florida, First District.
    July 3, 2003.
    Ryan Scott Burkhardt, petitioner, pro se.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DISMISSED. See Logan v. State, 846 So.2d 472 (Fla.2003).

BOOTH, BENTON and POLSTON, JJ., concur.


author: GRIFFIN, J.

text:
    Christina G. JOHNSON, Appellant, v. John Totty JOHNSON, Appellee.
    No. 5D02-2887.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2003.
    Christine G. Johnson, St. Augustine, pro se.
    Linda Logan Bryan, of Miller, Shine & Bryan, P.L., St. Augustine, for Appellee.
   GRIFFIN, J.

This is the appeal of an order on post-dissolution equitable distribution of a motor vehicle. We affirm.

John Totty Johnson [“Former Husband”] and Christine G. Johnson [“Former Wife”] were married on May 9, 1986 and divorced on December 27, 2000. The final judgment makes only one reference to the parties’ vehicles:

Husband’s car is worth $12,000.00 by agreement of the parties. The Wife was recently rear ended by a reckless driver and her car was totaled. Her 1994 Toyota was replaced with insurance payment of $5,300.00 and a 2000 Toyota is now hers with a mortgage payment on a lien of $14,000.00.

No further reference to the vehicles appears in the order. The court did retain jurisdiction to modify or enforce the judgment.

On January 5, 2001, Former Wife filed a motion for rehearing concerning the final judgment, stating:

3. The Court found the parties stipulated that the value of Husband’s auto is $12,000.00. Said stipulation was conditioned upon Wife receiving from the Husband $3,323.12, in excess of insurance award proceeds for her car of $5,300. Wife never received said sum, Husband kept same.

This motion was denied. Former Wife then filed a sworn pro se motion to clarify the final judgment, specifically:

1. Valuation and distribution of automobiles. In the findings of fact (page 2, first unnumbered paragraph in the FINAL JUDGMENT OF DISSOLUTION OF MARRIAGE) the court assumed the distribution of automobiles was concluded due to the existence of an agreement between the parties regarding the automobiles. There was no agreement reached by the parties regarding the automobiles. No evidence was submitted, or is otherwise available, to substantiate the stated valuation of the husband’s automobile. The wife now moves the court to correct the clerical error regarding the value of the husband’s automobile to $13,763.68 and order a settlement for the automobiles. This value is supported by husband’s exhibit termed “Expenditure of Datek-on-Line Funds.” This document is the husband’s accounting for expenditures of funds he withdrew, after separation, for a jointly held Datek-on-Line investment account. As the judgment failed to clarify how the court intended for the automobiles to be distributed, the wife submits that an equitable distribution of automobiles provides the wife with $4,231.34. This offsets the value of her automobile ($5,300) against the amount of marital funds used in the payoff of the husband’s automobile.

Accordingly, she requested payment of $4,231.34 from husband. This motion was referred to a general master, who concluded that there could be no clarification of the distribution of the automobiles because there had been no distribution at all. Upon the master’s recommendation, the motion was denied.

Former Wife then filed a sworn pro se motion for post-dissolution partition of jointly titled marital property, alleging:

1. The former husband is unwilling to voluntarily allow the former wife equal use of the 1999 Toyota Camry and likewise refuses to settle the distribution of automobiles with the former wife.
2. Although referred to in the finding of fact of the FINAL JUDGMENT FOR DISSOLUTION OF MARRIAGE, there is no agreement between the parties for the dispensation of the automobiles.
3. The former wife has made exhaustive attempts both with the former husband’s attorney, Judith G. Shine, Esquire and directly with the former husband to distribute the automobiles.
4.The former husband has enjoyed, since the time of separation, exclusive use of the co-owned 1999 Toyota Camry and denies former wife’s use of same.
6. The 1999 Toyota Camry ... is registered to both parties in St. John’s County []•

This motion also was forwarded by the court. to a general master. This time, Former Wife filed a written objection to the order of referral to a general master and requested a hearing before a judge. Shortly thereafter, however, Former Wife withdrew her motion for post-dissolution partition stating that the issue of the 1999 Camry had been equitably resolved by the parties.

Former Husband then filed a motion for contempt or enforcement of judgment. He alleged that the 1999 Camry was titled in both Former Husband and Former Wife’s names with the disjunctive “or.” Without Former Husband’s knowledge or permission, Former Wife had transferred title of the car to her name alone and then took the vehicle from Former Husband’s work parking lot while he was working. He asked the court to find Former Wife in contempt and to require her either to return the vehicle or to compensate him for its fair market value.

The court apparently conducted a hearing on the motion and then entered the following order:

THIS CAUSE came before the Court upon a Motion for Contempt filed against the Former Wife for the unilateral sale of a 1999 Toyota Camry vehicle, originally assumed by the Husband to be his pursuant to the Final Judgment but specifically not distributed in the Final Judgment. Both parties had cars in each parties’ possession but the Former Wife was apparently unhappy claiming the Former Husband retained the better of the cars in the Final Judgment entered in December of 2000. On February 17, 2002, more than one year after the Final Judgment was entered in this case, the Former Wife proceeded to the Former Husband’s employment at St. Vincent’s Hospital in Jacksonville and secured the 1999 Toyota Camry and later sold it for $9,000.
In laymen’s terms, the Former Wife wants her cake and to be able to eat it too. She was unhappy that the vehicle was not “officially” equitably distributed in the Final Judgment and that the Former Husband was driving the better of the two vehicles. Subsequent to the Final Judgment, she had purchased another vehicle. Regardless, the Court should have, in a post dissolution proceeding or upon rehearing, equitably distributed the 1999 Toyota Camry. Since the vehicle sold for $9,000, the Former Husband is entitled to $4,500 plus $700 for personal items inside the vehicle, including camping equipment, $200 cash, clothing, a cell phone and charger, tools, and keys to the Former Husband’s new home and post office box. The Former Wife claims she attempted to take this property to the Former Husband but he denies the same saying she attempted to give him a small box that did not have virtually any of the items complained thereof. Additionally, since the Former Wife left the Former Husband without a vehicle to leave from work, he had to pay $50.00 for a taxi and $255.00 for a rental car for two weeks.
Cases are legion in Florida that contempt is not a viable option for equitable distribution purposes. As a result, the Former Husband is entitled to a judgment for damages in the amount of $4,500 and failure of the Former Wife to turn over the aforementioned personal property contained in the car within thirty (30) days of the date of this Order, the Former Husband’s attorney may apply for an amended judgment for damages adding $700 to the judgment. Accordingly, it is
ORDERED AND ADJUDGED AS FOLLOWS:
1. The Former Wife is to pay the Former Husband $4,500 for his equitable share of the 1999 Toyota Camry, plus $50.00 for a taxi, plus $255.00 for a rental car, for a total of $4,805.00 within thirty (30) days of the date of this Order or the Former Husband may seek a money judgment for damages against the Former Wife for failure to pay the same.
2. The Former Wife shall return all personal property to the Former Husband contained in the vehicle including, camping equipment, $200 cash, clothing, a cell phone and charger, tools, and keys to his house and post office box within thirty (30) days of the date of this Order or the Former Husband shall be entitled to an additional $700 in money damages.
3. Failure of the Former Wife to pay these sums within thirty (30) days of the date of this Order may result in the attorney for the Former Husband submitting an ex parte Judgment for money damages in the amounts indicated above at ten percent (10%) interest.

Former Wife has now appealed this order. We find no error in the appealed order and affirm. As the court noted, the ambiguity in the judgment that led to all this litigation should have been corrected when brought to the trial court’s attention by the Former Wife. We reject, however, the Former Wife’s contention that the court lacked jurisdiction to modify or enforce it subsequently, and we find no error in what was done.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.


text:
    D.B., A Juvenile, Petitioner, v. The STATE of Florida, and George Laflam, Superintendent, Miami-Dade Juvenile Detention Center, Respondents.
    No. 3D03-1767.
    District Court of Appeal of Florida, Third District.
    July 7, 2003.
    Bennett H. Brummer, Public Defender, and Carlos Gonzalez, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for respondents.
    Before COPE and SHEVIN, JJ., and NESBITT, Senior Judge.
   Confession of Error

PER CURIAM.

D.B. petitions for a writ of habeas corpus, seeking release from home detention care with an electronic monitor. In its response, the State confesses error. The State acknowledges that D.B. does not qualify for home detention based on the risk assessment instrument. See § 985.213(2), Fla. Stat. (2002). The statute permits a more restrictive placement than that indicated by the risk assessment instrument, but to do so, “the court shall state, in writing, clear and convincing reasons for such placement.” Id. § 985.215(2)(j). No such reasons were given in this case. Accordingly we grant the petition for writ of habeas corpus and direct that D.B. be released from home detention. See K.C. v. Taylor, 696 So.2d 858 (Fla. 2d DCA 1997); D.G.H. v. Gnat, 682 So.2d 210 (Fla. 1st DCA 1996); cf. R.G. v. State, 817 So.2d 1019 (Fla. 3d DCA 2002) (discussing statute). The court may revisit the issue if there is a basis to do so.

Petition granted.


author: POLSTON, J. BROWNING, J.

text:
    Herman McQUEEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3794.
    District Court of Appeal of Florida, First District.
    July 8, 2003.

    Nancy A. Daniels, Public Defender; Robert S. Friedman, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   POLSTON, J.

Appellant Herman McQueen seeks the reversal of the Order of Adjudication and Commitment against him under the Jimmy Ryce Act, see §§ 394.910-394.931, Fla. Stat. (2001)(entitled “Involuntary Civil Commitment of Sexually Violent Predators”). Appellant argues that the Jimmy Ryce Act is unconstitutional in various ways, but the Florida Supreme Court has recently rejected those challenges. See Westerheide v. State, 831 So.2d 93 (Fla. 2002).

Appellant also argues that the trial court erred by denying his motion to exclude expert testimony concerning Appellant’s likelihood to reoffend because the experts used actuarial instruments that do not meet the test under Frye v. United States, 293 F. 1013 (D.C.Cir.1923) for admissibility of scientific evidence. In this case, we decline to resolve the issues of whether the actuarial instruments used in sexually violent predator commitment evaluations are subject to a Frye analysis and whether they meet the Frye test because, if admission of the actuarial evidence was error, we conclude that on the record before us the error was harmless. Green v. State, 826 So.2d 351 (Fla. 2d DCA 2002); Williams v. State, 841 So.2d 531 (Fla. 2d DCA 2003).

AFFIRMED.

BOOTH, J., concurs; BROWNING, J., concurs in part and dissents in part with separate opinion.

BROWNING, J.

CONCURS IN PART AND DISSENTS IN PART.

I concur with the majority opinion, because the essential element of the Florida Supreme Court’s affirmance in Wester-heide is that the State proved that the respondent had serious difficulty in controlling his behavior as defined by the United States Supreme Court in Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), and the same is true here. However, I dissent from the majority’s failure to certify questions to the Florida Supreme Court that would hopefully resolve the doubt concerning the proper jury instructions to be used in this and similar cases. I do not believe that West-erheide determines the proper jury instructions to be given under Crane, which causes untenable confusion that can be clarified only by a clear pronouncement on the issue by the Florida Supreme Court.

Westerheide does not resolve the Crane requirement that a respondent in a Jimmy Ryce Act proceeding possess a “serious difficulty in controlling his behavior,” as that standard relates to jury instructions. In Westerheide three justices set out the following rule:

[W]e do not find that Crane requires a specific jury instruction, but rather that there must be proof of “serious difficulty in controlling behavior” in order to civilly commit an individual as a sexually violent predator.

Westerheide, 831 So.2d at 107. If that decision were based on the concurrence of four justices, the issue would be settled. However, Justice Quince, who “reluctantly” concurred, did so in result only, leaving the jury-instructions issue unresolved as three justices dissented on the basis that the jury instructions were inadequate. Because of the justices’ divergent positions in Westerheide, the degree of a defendant’s difficulty in controlling his behavior as required by Crane has not been addressed by approved jury instructions.

It cannot be plausibly maintained, even though the State maintains to the contrary, that Justice Quince’s concurrence, by necessity, embraces the view of the three justices in the majority. Justice Quince stated she agreed “with much of Justice Pariente’s dissent,” which was based in toto upon Justice Pariente’s dissatisfaction with the jury instructions found acceptable by the three justices in the majority, but Justice Quince "... [could] not agree that the State did not demonstrate that Westerheide has serious difficulty in controlling his behavior, as that phrase has been used by the United States Supreme Court in Kansas v. Crane ...” Westerheide, 831 So.2d at 113. I infer from Justice Quince’s statements that she used a harmless error analysis in joining and forming the majority on the basis that the State’s evidence proved that the requirements of Crane were met as to Westerheide’s difficulty in controlling his behavior, notwithstanding any error in the jury instructions given. Accordingly, confusion prevails within the legal community concerning appropriate jury instructions, a situation that creates consequences that hinder the proper administration of justice.

Moreover, the situation is exacerbated by casting considerable doubt on well-reasoned decisions of this court that enunciate what I consider to be the correct jury instructions to be used in Jimmy Ryce commitments. See White v. State, 826 So.2d 1043 (Fla. 1st DCA 2002); Hudson v. State, 825 So.2d 460 (Fla. 1st DCA 2002); Converse v. Dept. of Children and Families, 823 So.2d 295 (Fla. 1st DCA 2002). If these decisions are to be affected by our Supreme Court, it should be done by a clear pronouncement rather than the uncertain one embodied in Westerheide.

I would attempt to resolve such unclear legal status created by Westerheide by posing certified questions to the Florida Supreme Court as to whether Jimmy Ryce Act commitments require jury instructions that contain substantially the following:

As used in these instructions, “mental abnormality” means a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the respondent to commit sexually violent offenses in a degree that causes the individual serious difficulty in controlling his behavior.
The term “likely to engage in repeat acts of sexual violence” means a person’s propensity to commit acts of sexual violence in the future is more likely than not.

In conclusion, I concur with the majority as to the result here because the opinion comports with the Westerheide rationale, but I dissent from the majority’s failure to certify on the basis of great public importance questions that would resolve the obvious confusion that exists within the legal community about jury instructions under Westerheide. I believe this court owes such a duty to the legal community in this type of situation.

For these reasons, I concur in part and dissent in part.

      . The experts relied on Appellant's admissions and performed clinical reviews in addition to using actuarial instruments. The Appellant, rather than the State, emphasized the results of the actuarial instruments in closing arguments.


author: WEBSTER, J.

text:
    John Thomas KILMARTIN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3352.
    District Court of Appeal of Florida, First District.
    July 8, 2003.

      Nancy A. Daniels, Public Defender; P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant entered unconditional guilty pleas to grand theft and dealing in stolen property. Pursuant to those pleas, he was adjudicated guilty of both offenses, and sentenced to five years in prison on the former, concurrent with a 12-year habitual felony offender sentence on the latter. He now appeals, contending that the trial court violated section 812.025, Florida Statutes (2001), and thereby committed fundamental error, when it entered judgments and sentences for both offenses because both were parts of “one scheme or course of conduct.” The state responds that (1) appellant may not raise this issue for the first time on appeal; and (2) on the merits, appellant has failed to demonstrate that, as a matter of fact, both offenses were parts of “one scheme or course of conduct.” We agree with appellant and, accordingly, reverse.

Our supreme court has said that the double jeopardy clauses of the state and federal constitutions may prohibit multiple convictions for offenses arising out of the same criminal transaction. Cruller v. State, 808 So.2d 201, 203 (Fla.2002). It has also said that “[t]he prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting from M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). This legislative intent can be either “explicitly stated in a statute ... or ... discerned through the Blockburger [v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932) ] test of statutory construction.” M.P. v. State, 682 So.2d at 81.

Section 812.025, Florida Statutes (2001), reads:

Notwithstanding any other provision of law, a single indictment or information may, under proper circumstances, charge theft and dealing in stolen property in connection with one scheme or course of conduct in separate counts that may be consolidated for trial, but the trier of fact may return a guilty verdict on one or the other, but not both, of the counts.

Although this language would appear to compel the opposite conclusion, our supreme court has held that the intent of section 812.025 is to preclude separate convictions for both grand theft and dealing in stolen property whenever the two offenses are parts of the same “scheme or course of conduct” — i.e., it has held that separate convictions are prohibited in such cases regardless of whether a defendant goes to trial or enters pleas. Hall v. State, 826 So.2d 268, 271 (Fla.2002). Given the holding in Hall, one must conclude that the supreme court had determined that the legislature’s intent when it adopted section 812.025 was to prohibit separate punishments for both grand theft and dealing in stolen property when both offenses were parts of the same criminal transaction. Accordingly, one must conclude, further, that separate punishments for both offenses in such cases, whether as the result of a trial or of pleas, violate the state and federal prohibitions against double jeopardy-

Appellant raises this argument for the first time on appeal, following his unconditional guilty pleas to both offenses. The state contends that appellant is precluded by his guilty pleas from doing so, relying on Florida Rule of Appellate Procedure 9.140(b)(2), which identifies the circumstances in which an appeal from a guilty or no contest plea is permitted. Appellant responds that the dual convictions constitute fundamental error, and that this appeal is permitted by rule 9.140(b)(2)(A)(ii)e as one “otherwise provided by law.” We agree with appellant because it is clear that a conviction that violates the prohibition against double jeopardy constitutes fundamental error, e.g., State v. Johnson, 483 So.2d 420 (Fla. 1986); and a claim of fundamental error may be raised for the first time on appeal. E.g., Sanford v. Rubin, 237 So.2d 134 (Fla. 1970).

The right to make such a double jeopardy claim may be waived, and a waiver will generally be found following a guilty or no contest plea entered as part of a bargain with the state. Novaton v. State, 634 So.2d 607, 609 (Fla.1994). However, no waiver occurs following entry of a guilty or no contest plea “when (a) the plea is a general plea as distinguished from a plea bargain; (b) the double jeopardy violation is apparent from the record; and (c) there is nothing in the record to indicate a waiver of the double jeopardy violation.” Id. A silent record does not, by itself, demonstrate a free and knowing waiver of such a claim. Austin v. State, 699 So.2d 314, 316 (Fla. 1st DCA 1997) (criminal division en banc). Here, appellant’s pleas were unconditional. There was no plea bargain. Moreover, there is nothing in the record to suggest that appellant intended to waive the double jeopardy claim. However, the state argues that appellant cannot prevail because he has failed to demonstrate that, as a matter of fact, both offenses were parts of “one scheme or course of conduct” — i.e., because the alleged double jeopardy violation is not apparent from the record. We disagree.

The record establishes that the grand theft charge was predicated on appellant’s having stolen some $3,300 worth of postage stamps from the United States Postal Service, and that the dealing in stolen property charge was predicated on appellant’s having attempted to sell the stamps to a coin shop two days later. The record demonstrates, further, that appellant has a history of alcohol and drug abuse stretching back at least 30 years, and that he has a history of committing thefts stretching back at least 20 years, the proceeds of which were used to support his alcohol and drug habits. Given these facts, it is relatively obvious that appellant did not steal the stamps so that he might use them himself or give them to another to use. Rather, the only reasonable conclusion that can be drawn is that appellant stole the stamps intending to sell them. Accordingly, the two offenses were parts of a single “scheme or course of conduct,” and section 812.025 prohibits appellant’s conviction for both. Hall v. State, 826 So.2d 268, 271 (Fla.2002).

We reverse appellant’s conviction for grand theft, and remand with directions that the trial court vacate the judgment and sentence for grand theft. Because appellant was sentenced as an habitual felony offender for the charge of dealing in stolen property, his sentence for that offense will not be affected by our decision.

REVERSED and REMANDED, with directions.

KAHN and DAVIS, JJ., concur.


text:
    STATE of Florida, Appellant, v. Christopher REED, Appellee.
    No. 1D02-3531.
    District Court of Appeal of Florida, First District.
    July 8, 2003.
    Charlie Crist, Attorney General; Felicia A. Wilcox, Assistant Attorney General, Tallahassee, for Appellant.
    Richard H. Smith of Stephen S. Dobson, III, P.A., Tallahassee, for Appellee.
   PER CURIAM.

The state seeks review of a downward departure sentence. Because the issue was not properly preserved in the trial court, we affirm. See State v. Henriquez, 717 So.2d 1087 (Fla. 3d DCA 1998).

AFFIRMED.

KAHN, WEBSTER and DAVIS, JJ., concur.


text:
    Earl SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D03-0899.
    District Court of Appeal of Florida, First District.
    July 8, 2003.
    Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for petitioner.
    Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

Earl Smith’s request for a belated appeal from the judgment and sentence rendered on October 2, 2002, in Columbia County Circuit Court case number 99-590-CF is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. RApp. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appoint counsel to represent petitioner on appeal.

KAHN, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Andre BROUGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1233.
    District Court of Appeal of Florida, First District.
    July 8, 2003.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We find no error in the post-trial hearing conducted by the trial court. We also conclude that appellant has not lost his right to file a Criminal Rule 3.850 motion.

AFFIRMED.

KAHN, VAN NORTWICK, and BROWNING, JJ., concur.


author: CASANUEVA, Judge.

text:
    STATE of Florida, Appellant, v. Roderick STOKES, Appellee.
    No. 2D02-3495.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Patricia A. McCarthy, Assistant Attorney General, Tampa, for Appellant.
    Thomas H. Ostrander, Bradenton, for Appellee.
   CASANUEVA, Judge.

The State of Florida has appealed from an order granting Roderick Stokes’s motion for postconviction relief. The order in this case was entered after an evidentiary hearing upon remand from our reversal of an earlier summary denial of the motion. Because the court misconstrued our prior opinion in this matter, Stokes v. State, 787 So.2d 99 (Fla. 2d DCA 2001), we must reverse.

Mr. Stokes filed a motion pursuant to Florida Rule of Criminal Procedure 3.850 contending that his counsel was ineffective for failing to investigate circumstances surrounding the victim’s statement to the police. Mr. Stokes faced various charges, including attempted murder, stemming from an episode in which he burst into the victim’s home and shot him at close range with a shotgun. The victim survived and, while being interviewed by an investigating officer at the hospital, allegedly named a person called Ernest or Ernesto as his assailant. The policeman who heard this testimony testified at trial on behalf of the defense. The State impeached his testimony, however, by suggesting that the officer must have been mistaken because the victim spoke only Spanish. Furthermore, the prosecutor contended, an interpreter was present, and the interpreter would be the best person to relate this testimony. Upon hearing this news for the first time, defense counsel did not move for a continuance. Counsel’s failure to interview and subpoena for trial the hospital interpreter, according to Mr. Stokes, rendered his assistance ineffective.

■The postconviction court summarily denied Mr. Stokes’s motion. On appeal, however, our court reversed, stating as follows:

The limited record before this court supports Stokes’s claim that his counsel’s omission was indeed prejudicial. See Gutierrez v. State, 778 So.2d 372 (Fla. 2d DCA 2001). Whether this failure was a strategic decision cannot be determined from the record before this court. It is entirely possible that defense counsel may have made a viable strategic decision to rely on the officer’s statement rather than to subpoena the interpreter. This issue must be resolved by the trial court and will almost certainly require an evidentiary hearing. See Flores v. State, 662 So.2d 1350 (Fla. 2d DCA 1995).

Stokes, 787 So.2d at 100.

Upon remand, the postconviction court, at the urging of the defense counsel, limited its inquiry to whether trial counsel’s failure to interview or subpoena the interpreter was a matter of strategy. The court did not, as urged by the State, consider whether the failure to do so was prejudicial. Unfortunately, the language of our previous opinion misled the court into believing that we had determined that Mr. Stokes was in fact prejudiced by his counsel’s omissions relating to the interpreter. However, a reviewing court can find prejudice only in the rarest of cases; seldom will that occur when the court has for review only a limited record. See Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (holding that only when the trial is presumptively unfair and defense counsel has failed to subject the prosecution’s case to “meaningful adversarial testing” can an appellate court reverse on grounds of ineffective assistance of counsel). Furthermore, to establish prejudice in the realm of ineffective assistance of counsel claims, more is required than a simple demonstration that counsel’s performance has had some adverse effect on the matter — as, in this case, the impeachment of the defense witness. Rather, the test is whether the outcome would have been different absent counsel’s unprofessional performance. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). This court could not come to that conclusion upon its review of the motion, order, and limited record in the prior appeal.

Because the postconviction court must determine whether Mr. Stokes suffered prejudice from his counsel’s failure to investigate or interview the interpreter, we must reverse and remand for an additional evidentiary hearing. Before holding the hearing, however, the postconviction court may examine and rale upon some procedural issues that it discovered in the course of its prior dealings with this case, including whether this motion was successive or time-barred.

Reversed and remanded for additional proceedings.

DAVIS and KELLY, JJ., concur.


author: STRINGER, Judge.

text:
    Rigoberto CASO a/k/a Alex Leal, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3761.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.
    James Marion Moorman, Public Defender, and Howardene Garrett, Assistant Public Defender, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Rigoberto Caso seeks review of the trial court’s order summarily denying a claim of ineffective assistance of counsel in his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Because the claim is legally sufficient, the trial court erred in denying it without conducting a hearing. Accordingly, we reverse.

After a jury trial, Caso was convicted of two counts of trafficking in cocaine based upon the seizure of cocaine from his vehicle and home. In his motion for postcon-viction relief, Caso alleged that he was denied effective assistance of counsel because counsel did not investigate his assertion that the police coerced his consent to search his home by detaining him for a long time, threatening to get a warrant, threatening to lock up his wife and take his children, and promising that he would only be charged with the drugs in his ear and not with any drugs found in his home. Assuming these factual allegations are true, Caso has stated a legally sufficient claim. See, e.g., Butler v. State, 697 So.2d 907, 909 (Fla. 2d DCA 1997) (holding that a police officer’s act of threatening to get a warrant rendered a defendant’s consent to search involuntary); State v. Favaloro, 424 So.2d 47, 48 (Fla. 3d DCA 1982) (holding that consent induced by an implied promise that the defendant would not be prosecuted was involuntary); Nelson v. State, 376 So.2d 459, 459 (Fla. 1st DCA 1979) (holding that the prolonged detention of the defendant rendered a defendant’s consent involuntary).

The trial court denied relief based on its conclusion that the motion to suppress that had been filed on Caso’s behalf “adequately addressed [Caso’s] concern pertaining to police deception.” Although the motion mentioned Caso’s consent and the threats by the officers concerning his wife, the motion argued that the cocaine found in Caso’s house should be suppressed because the consent was given only after the illegal search of his vehicle and therefore was “fruit of the poisonous tree.” Because the record does not refute Caso’s legally sufficient claim, we reverse and remand for an evidentiary hearing. See Maharaj v. State, 684 So.2d 726 (Fla.1996).

Reversed and remanded.

SILBERMAN, J., and THREADGILL, EDWARD F., Senior Judge, concur.


author: FULMER, Judge.

text:
    Joseph Anthony KUZMINSKI, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5460.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.
   FULMER, Judge.

Joseph Anthony Kuzminski challenges the summary denial of his motion for post-conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The State concedes, and we agree, that the trial court erred in sentencing Kuzminski as a habitual felony offender. We reverse.

On June 6, 2002, Kuzminski entered a plea of no contest in case 99-355C for offenses that occurred in April 1999. The trial court determined that Kuzminski met the habitual felony offender criteria and imposed a habitual offender sentence of five years in prison.

Kuzminski subsequently filed a motion to correct illegal sentence in which he claimed that his habitual offender sentence was illegal because he lacked the necessary predicate offenses for such a sentence. In its order denying the motion, the trial court attached the June 7, 2002, order of the sentencing court declaring Kuzminski to be a habitual felony offender, together with the judgments and sentences for cases 93-297CF and 95-33CF upon which that determination was predicated. The trial court concluded that these documents refuted Kuzminski’s claims. However, these documents reflect that the two convictions upon which the habitual felony offender qualification was based were both entered on March 13, 1995, and, therefore, failed to satisfy the sequential convictions requirement of section 775.084(5), Florida Statutes (Supp.1998).

In case 93-297CF, Kuzminski entered a plea of no contest to burglary of a structure and was placed on probation. Adjudication was withheld. He subsequently violated his probation and was adjudicated guilty on March 13, 1995, and sentenced to thirty-two months in prison. Also on March 13, 1995, Kuzminski was adjudicated guilty of burglary of a dwelling and dealing in stolen property in case 95-33CF. He was sentenced to thirty-two months in prison, concurrent with the sentence imposed in case 93-297CF.

Section 775.084(2), Florida Statutes (Supp.1998), states:

For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction if the subsequent offense for which the person is to be sentenced was committed during such period of probation or community control.

The offenses committed in case 99-355CF were not committed while Kuzmin-ski was on probation for case 93-297CF. Therefore, the date of conviction for habit-ualization purposes in case 93-297CF is March 13, 1995, the date Kuzminski was adjudicated guilty after violating his probation. See May v. State, 713 So.2d 1087 (Fla. 2d DCA 1998). This is the same date that he was convicted in case 95-33CF. It was therefore improper for the sentencing court to have used these convictions to qualify and sentence Kuzminski as a habitual felony offender in case 99-355CF.

In its response to this appeal, the State concedes error but argues that the remedy should be limited to striking only the habitual offender designation on the five-year sentence. The State also argues that on remand it should be allowed to again seek a habitual offender sentence using other available prior convictions that may exist. The State rested these arguments on a recital of the fact that Kuzminski agreed to the five-year sentence pursuant to the terms of a plea agreement in which he also agreed that the State could “move to habituate on 99-355CF.” A copy of the plea agreement was attached to the State’s response but was not one of the documents attached to the trial court’s order denying Ruzminski’s motion. Neither was it properly made a part of the summary record. Furthermore, we do not have a transcript of the sentencing proceeding in which the presence or absence of objections may control whether the State should be entitled to again seek a habitual offender sentence. Thus, we decline to address the State’s arguments regarding resentencing and direct that they first be argued on remand before the trial court.

Reversed and remanded for resentenc-ing.

CANADY and WALLACE, JJ., concur.


text:
    Kenneth L. WESLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-5022.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.
   CASANUEVA, Judge.

Kenneth L. Wesley appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He contends that upon his imminent release from incarceration, he will be illegally placed on conditional release because the Department of Corrections has improperly calculated his sentence. He claims that putting him on conditional release forces him to serve his sentence in “bits and pieces,” thus altering his original sentence and rendering it illegal and excessive. The circuit court denied his motion, finding that it lacked jurisdiction, because his only avenue of relief lay via a petition for writ of mandamus. The circuit court correctly analyzed its jurisdiction in this matter, Wilson v. State, 783 So.2d 1104 (Fla. 2d DCA 2001), and we thus affirm. We write briefly to explain that even had Mr. Wesley properly filed a petition for mandamus, he is not entitled to the relief he seeks.

Mr. Wesley was incarcerated serving concurrent sentences, one for a crime he committed in 1990, the other for a crime committed in 1999. The 1990 sentence is “conditional release eligible,” as determined by the Florida Parole Commission, but the 1999 sentence is not. In April 2001, Mr. Wesley was notified that he had reached the end of the incarcerative portion of his 1990 sentence, based on accrued gain time, and that upon his actual release from prison in April 2003, upon the total expiration of his 1999 sentence, he will be put on conditional release to serve out the remainder of his 1990 sentence. The length of the conditional release supervision is determined by the gain time he had earned on that 1990 sentence. See § 947.1405, Fla. Stat. (1989).

This scheme, argues Mr. Wesley, requires that although he continued to be incarcerated after April 2001, he did not get day-for-day credit on the unexpired portion of his 1990 sentence; thus, upon his release in April 2003, he will be forced to serve a longer, unauthorized period, albeit under conditional release, to complete the 1990 sentence. Although on the face of it this circumstance seems unfair to him, the supreme court has addressed this exact situation in Evans v. Singletary, 737 So.2d 505 (Fla.1999). The supreme court held in Evans that the State may use an unexpired eligible sentence, like Mr. Wesley’s 1990 sentence, to determine the length of the conditional release supervision and then toll the beginning of the supervisory period until the inmate’s ultimate release from prison, which corresponds to the unconditional release of Mr. Wesley after the expiration of his 1999 sentence in April 2003. Id. at 506. The supreme court found that the legislature instituted the conditional release program based on its belief that some prisoners remained at-risk upon release and would therefore need a special, post-incarceration supervisory period. Requiring that they serve their conditional release while still in prison would not serve this purpose. Therefore, “tolling the supervision until the inmate has been released from prison would be the most logical choice” in construing the statute. Id. at 508. Because the supreme court has specifically allowed such tolling, putting Mr. Wesley on conditional release for the remainder of his 1990 sentence at the time he is finally released in April 2003 from his 1999 sentence is not a miscalculation of his sentence.

Affirmed.

ALTENBERND, C.J., and COVINGTON, J, Concur.

      . Upon the suggestion of the appellee, State of Florida, we asked the Department of Corrections and the Florida Parole Commission to respond to Mr. Wesley’s allegations in this appeal. Although not technically parties to this appeal, they furnished us with excellent briefs for which we thank them.

      . Mr. Wesley is also serving two more sentences that are concurrent and coterminous with the 1990 sentence. However, these additional sentences do not affect the analysis here.

      .This is his "tentative release date,” the date projected for release from custody by virtue of gain time granted or forfeited pursuant to section 944.275(3)(a), Florida Statutes (1989). See § 947.005(6), Fla. Stat. (1989).


author: KELLY, Judge.

text:
    Christopher Stephen DAIGLE, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-156.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      James Marion Moorman, Public Defender, and Edward Lee Giles, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Katherine V. Blanco, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Christopher Daigle appeals from his judgment and sentence for DUI manslaughter. He raises several challenges to his conviction. Citing State v. Miles, 775 So.2d 950 (Fla.2000), Daigle first argues that the trial court erred in instructing the jury on the presumption of intoxication. Daigle, however, failed to object to the jury instructions at trial; and accordingly, the issue was waived. See Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002) (following Miles and finding that because the DUI defendant’s appellate challenge to the standard DUI impairment presumption instruction was never presented to the trial court, this issue was not preserved for appeal, even though Miles was not decided until after the defendant’s trial), review granted, 832 So.2d 103 (Fla.2002). See also Leveritt v. State, 817 So.2d 891 (Fla. 1st DCA 2002).

Daigle alternatively argues that it was fundamental error to instruct the jury on the presumption of impairment. In Cardenas, the First District stated: “[w]e have considered whether the giving of the impairment presumption instruction constituted fundamental error, and conclude that it did not.” 816 So.2d at 726. The court explained that the instruction did not omit or misdefine an essential element of the offense. Because it only advised the jury of an evidentiary presumption that they were free to accept or reject, the court found that the error was not fundamental. The court reiterated this holding in Leveritt, 817 So.2d at 897. We agree that it is not fundamental error to give the instruction; however, as did the First District, we certify the following question to be of great public importance:

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

Daigle next argues that the trial court erred in denying his motion for judgment of acquittal. Daigle correctly argues that the State was required to prove that the manner in which he operated his vehicle caused or contributed to the cause of the crash. See § 316.193(3)(c), Fla. Stat. (1997); State v. Hubbard, 751 So.2d 552 (Fla.1999); Magaw v. State, 537 So.2d 564 (Fla.1989). The crash occurred when a car driven by Laura Howard pulled out in front of Daigle. At the moment Ms. Howard was pulling out in front of Daigle, the victim, Priscilla O’Meara, was also pulling into the road from the opposite direction. When Daigle swerved to avoid Howard, he struck O’Meara. Daigle’s expert witness testified that the fatal traffic crash was “unavoidable” and “inevitable” and not caused in any way by the manner in which Daigle operated his car. Although the State presented no expert testimony or other evidence to directly contradict this testimony, it did offer evidence that, if believed, could have undermined the expert’s conclusion that the accident was unavoidable. Accordingly, we believe that the trial court correctly denied Daigle’s motion for a judgment of acquittal because the ultimate issue of whether Daigle caused the accident was a question for the jury. See State v. May, 670 So.2d 1002 (Fla. 2d DCA 1996). The jury was entitled to accept or reject Daigle’s expert’s opinion that he could not have avoided hitting Mrs. O’Meara’s car. See Chesnoff v. State, 840 So.2d 428 (Fla. 5th DCA 2003).

Daigle also raises several specific challenges to the trial court’s admission of his blood alcohol test results. We do not reach the merits of these challenges because unfortunately for Daigle, the issues were unpreserved. Defense counsel’s only objection to the admission of the blood evidence was that the “testimony given today concerning possibly inaccurate information, people not remembering who drew the blood, what happened, that this report could be inaccurate.” This vague objection is insufficient to preserve the specific challenges he has raised on appeal. Likewise, Daigle challenges as irrelevant and prejudicial testimony elicited from the emergency room doctor who treated him after the accident. At trial, however, defense counsel merely stated: “Objection, Your Hon- or. The doctor’s reading straight from his report.” She made no mention of prejudice or the lack of relevancy at the time and accordingly, those objections are not preserved.

Daigle also argues that the trial court erred at sentencing. Driving under the influence-manslaughter is a second-degree felony with a maximum sentence of fifteen years. Daigle received a sentence of ten years, ten months, to be followed by ten years of probation. This sentence is illegal because the combined prison and probation time exceeds the statutory maximum. See Fuentes v. State, 711 So.2d 175 (Fla. 2d DCA 1998).

During the pendency of this appeal, Dai-gle filed a motion to correct sentencing error. The trial court conducted a hearing on the motion and the prosecutor agreed that the sentence exceeded the statutory maximum for the offense. The parties stipulated to a corrected sentence reflecting 130 months’ state prison, with forty months suspended, to be followed by fifty months’ probation. Apparently, however, no corrected written judgment was ever entered. Therefore, we remand for the entry of a corrected written sentence.

Affirmed; remanded with instructions; question certified.

WHATLEY and COVINGTON, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Stephen E. YOST, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and HOPE of Lee County, Inc., Appellees.
    No. 2D02-1313.
    District Court of Appeal of Florida, Second District.
    July 9, 2003.

      Stephen E. Yost, pro se.
    John D. Maher, Tallahassee, for Appel-lee Unemployment Appeals Commission.
    No appearance for Appellee HOPE of Lee County, Inc.
   NORTHCUTT, Judge.

In a split decision, the Unemployment Appeals Commission affirmed the order of an appeals referee denying unemployment compensation benefits to Stephen Yost. We reverse because the order was not supported by competent, substantial evidence.

The referee’s written decision set forth the following findings of fact: Yost was employed as a social worker with HOPE of Lee County, Inc., a hospice organization, from March 6, 1995, until November 5, 2001. His duties required him to manage a caseload of clients. HOPE has a policy that requires social workers to contact each client once every fourteen days, and Yost was aware of this policy. In July 2001, Yost’s superiors discovered that he had fallen behind in contacting his clients. They put him on a ninety-day probation and warned that he must follow the policy, or he might be discharged. During the probation Yost made thirty-five late contacts with clients. Yost’s superiors discharged him.

The referee determined that Yost was discharged for misconduct connected with his work, and therefore was ineligible for unemployment compensation benefits under section 443.101(l)(a), Florida Statutes (2001). The UAC affirmed the decision. In a dissenting opinion, Commissioner Forst pointed out that the proof that Yost made late contacts with his clients consisted solely of hearsay in the form of time log entries allegedly made by Yost. These logs were not introduced into evidence. Commissioner Forst observed that such unsubstantiated hearsay, standing alone, was insufficient to support a finding of fact.

Commissioner Forst was correct. At the hearing before the referee, the sole basis for the testimony of Yost’s supervisors was a computer detail report reflecting entries allegedly based on Yost’s time sheets. Neither the report nor the time sheets were introduced. In administrative proceedings, including hearings before unemployment compensation appeals referees, hearsay evidence is admissible only for the purpose of explaining or supplementing other evidence. It is not sufficient, standing alone, to prove a material fact in issue unless it would be admissible over objection in a civil proceeding. See § 120.57(l)(c), Fla. Stat. (2001); Doyle v. Fla. Unemployment Appeals Comm’n, 635 So.2d 1028, 1032 (Fla. 2d DCA 1994); see also Brown v. Int’l Paper Co., 710 So.2d 666, 668 (Fla. 2d DCA 1998). The computer report was hearsay. Although it and the time sheets might have been introduced under the business records exception to the hearsay rule, § 90.803(6)(a), Fla. Stat. (2001), they were not presented at the hearing. That being the case, the testimony describing the report’s content was double hearsay that was not admissible under the exception. See Bolin v. State, 736 So.2d 1160, 1167 (Fla.1999); Johnson v. State, 691 So.2d 43, 44 (Fla. 2d DCA 1997).

Yost’s failure to object to the admissibility of this hearsay testimony does not preclude us from considering the sufficiency of the evidence to support the referee’s order. Brown, 710 So.2d at 668; Doyle, 685 So.2d at 1032. We agree with Commissioner Forst that the evidence, consisting solely of inadmissible hearsay, could not support a denial of benefits to Yost.

Moreover, even if it had been proved by competent evidence that during Yost’s probation he made thirty-five late client contacts, this fact was not, in itself, adequate to prove him guilty of misconduct so as to disqualify him from benefits. Consider: Yost’s superiors estimated that during the probation his caseload ranged between twenty-five and thirty clients. Yost thought his caseload had reached thirty-five. Therefore, during those ninety days he was required to make between 160 and 225 client contacts. If thirty-five of his contacts were late, then 80 to 85% of his contacts were timely.

Obviously, Yost’s superiors considered this insufficient, and we do not question their decision to terminate him. But misbehavior serious enough to warrant an employee’s dismissal is not necessarily serious enough to sustain a forfeiture of unemployment compensation' benefits. Frazier v. Home Shopping Club LP, 784 So.2d 1190, 1191 (Fla. 2d DCA 2001). In order to support a denial of benefits, “misconduct connected with work” is not mere inefficiency, unsatisfactory conduct, failure in good performance as the result of an inability or incapacity, inadvertence, good faith errors in judgment or discretion, or ordinary negligence in isolated instances. Id. Rather, the employer must prove that the employee behaved intentionally or with a degree of carelessness or negligence that manifests a wrongful intent or evil design, or otherwise acted in a way that would constitute misconduct as defined in section 443.036(29). Id. at 1192.

Certainly, the deficiency in Yost’s performance was not so facially extreme that it proved his misconduct standing alone. Nor did the record furnish any other basis for finding that his unsatisfactory work was the product of misconduct. In short, the referee’s conclusion that Yost was guilty of misconduct connected with work was unsupported by any evidence, competent or otherwise.

Accordingly, we reverse and remand with directions to award Yost unemployment compensation benefits.

FULMER and CASANUEVA, JJ., concur.

      . Section 443.036(29) provides that for purposes of the unemployment compensation law, “misconduct” includes:
      (a) Conduct evincing such willful or wanton disregard of an employer's interests as is found in deliberate violation or disregard of standards of behavior which the employer has the right to expect of his or her employee; or (b) Carelessness or negligence of such a degree or recurrence as to manifest culpability, wrongful intent, or evil design or to show an intentional and substantial disregard of the employer's interests or of the employee’s duties and obligations to his or her employer.


text:
    Bryant WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D01-332.
    District Court of Appeal of Florida, Third District.
    July 9, 2003.

      Bennett H. Brummer, Public Defender, and David M. Tarlow, Special Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, Richard L. Polin, Senior Assistant Attorney General, and Brian J. O’Toole, Certified Legal Intern, for appellee.
    Before SCHWARTZ, C.J., and GERSTEN and GODERICH, JJ.
   PER CURIAM.

Affirmed. See B.H. v. State, 645 So.2d 987 (Fla.1994); Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994).