author: DAVIS, Judge.

text:
    Ralph GIANNI, Appellant, v. Joseph KERRIGAN, Appellees.
    No. 2D01-3101.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2003.
    Jordan L. Wallach, Sarasota, for Appellant.
    Joseph Kerrigan, pro se.
   DAVIS, Judge.

Ralph Gianni challenges the trial court order that issued a permanent injunction against repeat violence against him based on the petition of Joseph Kerrigan. Section 784.046, Florida Statutes (2000), provides that there must be two incidents of violence, as defined by the statute, before the court may issue such an injunction. However, the instant record only supports a finding of one incident of violence. We therefore conclude that the court erred in issuing the injunction.

Section 784.046 creates a cause of action for an injunction for protection in cases of repeat violence, which is defined as “two incidents of violence or stalking committed by the respondent.” § 784.046(l)(b). The statute defines the term “violence” as: “any assault, battery, sexual battery, or stalking by a person against any other person.” § 784.046(l-)(a).

In his petition, Kerrigan alleged two incidents of violence, one occurring on May 3, 2001, and one occurring on April 29, 2001. The petition described the May 3, 2001, incident at the Holiday Inn on Lido Beach as follows:

I was sitting at the bar having a beer. Ralph walked in while arguing on his cell phone. He then slammed the phone down, bar tender and security guard walked away. He waited then threw me off bar stool, put his foot on my mouth, grabbed my pinky finger on left hand and kicked me in back of neck. While he was doing this he was screaming that he was going to kill me and that I’d be hearing from him soon and this wasn’t over.

The petition described the April 29, 2001, incident as follows: “Ralph made multiple phone calls saying that he was going to kick my ass whenever he saw me.”

At the hearing, Kerrigan described the May 3, 2001, incident essentially as he did in his petition. However, when he testified about the April 29, 2001, telephone calls, he clarified that Gianni had made three phone calls to Kerrigan on that day, only one of which Kerrigan actually listened to before hanging up. With reference to whether he was placed in fear as a result of the calls, Kerrigan stated: “Well, that’s — you know, at the time, some people call me up, they get upset, whatever. It wasn’t a big incident. I didn’t think I needed an injunction for phone calls. But I do for violence.” On cross-examination, the following discussion ensued regarding the phone calls:

Q. You said that you didn’t think anything of the incident with the phone calls? You didn’t think you needed an injunction or anything?
A. Not at that time, no, because—
Q. And you—
A. —it’s just threat, you know, minor stuff.
Q. And you weren’t in fear at that time?
A. No, I—
Q. You weren’t afraid?
A. My bone wasn’t busted. I wasn’t threatened. You know, somebody says something to you, you know, you blow it off. I didn’t think he’d do anything.

Kerrigan’s testimony demonstrates that the phone calls on April 29, 2001, do not qualify as a second incident for purposes of the statute. The statute requires that the respondent commit some type of violence upon the petitioner. Under the statutory definition of violence, Gianni’s phone calls did not even qualify as an assault because Kerrigan testified that he was not put in fear by the calls.

While the incident on May 3, 2001, at the Holiday Inn appears to have qualified as an incident of violence under the statute, since the April 29, 2001, phone calls do not meet the statutory definition of violence, Kerrigan did not allege or prove two incidents of violence and, accordingly, failed to put on a prima facie case entitling him to an injunction.

Reversed.

ALTENBERND, C.J., and CANADY, J., Concur.


source: Caselaw Access Project

author: RAMIREZ, J.

license: Public Domain

text:
    Damion L. BURST, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D02-157, 3D02-155.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and Steven R. Berger, Assistant Attorney General, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   RAMIREZ, J.

Damion L. Burst appeals his conviction for armed robbery and an oral order violating his probation. We affirm the denial of his motion for a mistrial because the trial court did not abuse its discretion where Burst opened the door to the prosecution’s argument.

Following an armed robbery at the Frontier Bar, the victim gave a description of his assailants to police and a BOLO was issued. Two blocks away, an officer encountered two individuals who fit the BOLO description. The individuals ran into an empty lot when they saw the officer. A few minutes later, and a block away, another officer encountered Burst out of breath. The victim identified Burst as the gunman.

At his trial, Burst testified that he ran from the first officer because he was in possession of a “bag of weed” in violation of his probation. He did not run from the second officer because he had gotten rid of the “weed.”

Burst also testified as to his prior felony convictions as an affirmation that he was telling the truth about the robbery.

Defense counsel: Did you rob LeFrance Frazier?
Burst: No, I didn’t.
Defense counsel: Is that true?
Burst: Yes, that is the truth.
Defense counsel: Have you ever been convicted of a crime?
Burst: Yes.
Defense counsel: How many times?
Burst: Four times.
Defense counsel: What was that for?
Burst: Two counts of possession of cocaine and two grand thefts.

Defense counsel’s question as to prior convictions “of a crime” was broader than allowed under section 90.610(1), Florida Statutes (2000), which only permits impeachment through felony convictions or misdemeanors involving dishonesty or a false statement. See Brown v. State, 787 So.2d 136, 139 (Fla. 4th DCA 2001). This was further compounded by eliciting testimony regarding the nature of the convictions, which would have been improper cross-examination. See Cummings v. State, 412 So.2d 436, 438 (Fla. 4th DCA 1982). Defense counsel thus opened the door to otherwise inadmissible evidence.

During cross-examination, Burst clarified that those were not all the crimes for which he had been convicted, but that those were all the felonies. The prosecutor elicited Burst’s testimony that one of the possession convictions was for possession with intent to sell, and one of the grand theft convictions was for grand theft auto.

During closing arguments, the defense counsel attacked the reliability of the victim’s identification. The prosecutor then attacked Burst’s credibility by highlighting his conviction for grand theft auto as not being “just that he stole something from Burdines ... [that he] just stuffed a bunch of stuff in a bag,- no. He went up to somebody’s car and he broke in and he stole it.” Burst argues that he should have been granted a mistrial because the prosecutor’s remarks introduced facts not in evidence and that the remarks were aimed at demonstrating Burst’s propensity to commit the crime. We disagree.

Burst opened the door when he testified as to the nature of his prior convictions, thus allowing the prosecutor to inquire as to the details. See Mosley v. State, 739 So.2d 672, 676 (Fla. 4th DCA 1999). When viewed in context, the prosecutor’s remarks about grand theft auto being different than shoplifting at Bur-dines were aimed at attacking Burst’s credibility and were not meant to show a propensity to commit crimes. Attacks upon the defendant’s credibility are entirely proper. See Wilkins v. State, 383 So.2d 742 (Fla. 4th DCA 1980). See also State v. Murray, 443 So.2d 965, 957 (Fla.1984) (the credibility of the defendant as a witness was subject to attack in closing argument where he took the stand to deny culpability and prosecutor’s comments, although pungent, were harmless error). Although the prosecutor’s remarks may have gone too far in arguing that Burst broke into a car, this isolated reference did not vitiate the entire trial so as to require a mistrial.

However, we do agree, and the State properly concedes, that the violation of probation determination must be remanded so that the trial court may enter a written order specifying which conditions of probation were violated. See Widmer v. State, 697 So.2d 545 (Fla. 1st DCA 1997); Greer v. State, 831 So.2d 1261(Fla. 2d DCA 2002).

Affirmed in part, remanded so that written order violating probation may be entered.


author: LEVY, Judge.

text:
    William BATEMAN & Estate of Steven J. Slaughter, Appellants, v. SERVICE INSURANCE COMPANY, Appellee.
    No. 3D02-1924.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Joseph J. Vetrick, Key Largo, for appellants.
    Vernis & Bowling and James R. (Jack) Bridges, Islamorada, and Leonard T. Hackett, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   LEVY, Judge.

The Estate of Stephen J. Slaughter appeals from a trial court Order granting Service Insurance Company’s Motion to Disburse Attorney’s Fees. We reverse.

The instant case arises out of a disagreement between William Bateman and the Estate of Stephen J. Slaughter involving who should receive the proceeds of fire insurance benefits on a policy issued by Service Insurance Company. On February 14, 2001, the parties entered into a Stipulation Dismissing Interpleader Plaintiff and Awarding Interpleader Plaintiff Attorney’s Fees Payable out of Interpled Funds. According to the Stipulation, Service Insurance was dismissed from the case and required to tender the interpled funds into the court registry. The Stipulation also noted that Service Insurance would be awarded attorney’s fees, from the interpled funds, incurred to date of the Stipulation. The trial court entered an order granting the Stipulation on February 26, 2001.

On April 2, 2001, Service Insurance filed a Motion to Disburse Attorney’s Fees, which stated that the amount of attorney’s fees due to Service was $15,445.32 and attached a certification of counsel. On April 5, 2001, Bateman, who is not a party to this appeal, filed a Motion in Opposition to Plaintiffs Motion to Disburse Attorney’s Fees, contending that the amount of fees requested by Service was “exorbitant and entirely unreasonable,” and that no documentation was provided to justify the expenses. On April 25, 2001, Service attached itemized bills for the legal expenses to a Motion for an Emergency Hearing or in the Alternative Plaintiffs Motion Requesting that the Interpled Funds Not be Disbursed. On May 8, 2001, the trial court granted the April 25, 2001 Motion, ordering (1) that Bateman and Slaughter’s Estate were entitled to an evidentiary hearing on the matter of attorney’s fees, and (2) that none of the interpled funds could be disbursed until further order of the court.

On June 6, 2002, following the trial to adjudicate the dispute between Bateman and Slaughter’s estate, the trial court conducted a non-evidentiary hearing on Service Insurance’s Motion to Disburse Attorney’s Fees. On June 10, 2002, Slaughter’s Estate filed an Opposition to Proposed Order, contending that it objected to the determination of the amount of the attorney’s fees without an evidentiary hearing. On June 12, 2002, the trial court entered an order granting Service Insurance’s Motion to Disburse Attorney’s Fees and awarded $13,056.50 to Service Insurance. This appeal follows.

As a preliminary matter, despite the fact that there is no transcript of the June 6, 2002 hearing, it is undisputed that Slaughter’s Estate filed its Opposition to Proposed Order prior to the trial court’s entry of its June 12, 2002 Order which granted Service Insurance’s Motion to Disburse Attorney’s Fees. Thus, Slaughter’s Estate’s objection was preserved for appeal.

We conclude that the trial court abused its discretion in disbursing attorney’s fees to Service Insurance without first conducting an evidentiary hearing. The standard of review for an award of attorney’s fees is abuse of discretion. See Black v. Bedford at Lake Catherine Homeowners Ass’n, Inc., 801 So.2d 252, 253 (Fla. 4th DCA 2001) (citations omitted). Prior to awarding attorney’s fees for services already rendered and for costs already incurred, a trial court must hold an eviden-tiary hearing to determine the reasonableness and necessity of the fees and costs awarded. See Martin v. Martin, 561 So.2d 1266 (Fla. 3d DCA 1990). Moreover, when the record contains some competent substantial evidence supporting the fee order, but fails to include evidentiary support such as testimony from the attorney performing the services, the appellate court will reverse and remand for additional findings or an additional hearing. See Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998). Given that the trial court failed to conduct an evidentiary hearing, especially after entering an order which stated that the parties were entitled to said hearing, the Record clearly lacks evidentiary support for the fees disbursed by the trial court. Moreover, contrary to the trial court’s June 12, 2002 order, the Parties’ Stipulation and the Order Granting Parties’ Stipulation do not state that Service Insurance is entitled to an amount of attorney’s fees without any requirement to prove the propriety of the amounts claimed. Accordingly, we reverse and remand to the trial court for an evidentiary hearing on the issue of attorney’s fees.

Reversed and remanded.


author: PER CURIAM.

text:
    Larry James McKINNEY, Appellant, v. The State of FLORIDA, Appellee.
    No. 3D02-1539.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charlie Crist, Attorney General, and John D. Barker, Assistant Attorney General, for appellee.
    Before COPE and WELLS, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. Dufour v. State, 495 So.2d 154, 160 (Fla.1986); State v. Marshall, 476 So.2d 150 (Fla.1986).


text:
    Ricardo Santiago GENDE, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN & FAMILIES, Appellee.
    No. 3D02-2168.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Ricardo Santiago Gende, in proper person.
    Sandra Piligian, for appellee.
    Before SCHWARTZ, C.J., and COPE, and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).


author: SCHWARTZ, Chief Judge. GREEN, J. COPE, J.

text:
    The STATE of Florida, Appellant, v. Corey FRANKLIN, Appellee.
    No. 3D02-957.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.

      Charlie Crist, Attorney General and Michael J. Neimand (Fort Lauderdale), Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Billie Jan Goldstein and Lisa Walsh, Assistant Public Defenders, for appellee.
    Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and RAMIREZ, JJ.
   ON HEARING EN BANC

SCHWARTZ, Chief Judge.

Following Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), the trial court granted the defendant’s motion to correct an allegedly illegal sentence by eliminating his designation and consequent sentence as a habitual felony offender, upon the holding that the statute which provided for that result, Chapter 99-188, Laws of Florida, the “Three-Strike Violent Felony Offender Act,” was unconstitutional as violative of the single subject requirement of the Florida Constitution. See Art. Ill, § 6, Fla. Const. While the trial court was bound by Taylor, we are not. After en banc consideration, we hold, directly contrary to Taylor, that the statute is not invalid and therefore reverse the order below.

The issue of whether a multi-section statute violates the “single subject” rule is one of those perplexing legal controversies in which general rules and decisions embracing them may be found, indeed multiplied, on each side of the particular controversy, compare State v. Johnson, 616 So.2d 1 (Fla.1993); State v. Thompson, 750 So.2d 643 (Fla.1999), and cases cited therein; Grant v. State, 770 So.2d 655 (Fla.2000), and the result, and the group of cases to be cited in support of it, lies ultimately in the eye of the judicial beholder. See Poole v. Veterans Auto Sales & Leasing Co., 668 So.2d 189 (Fla.1996), citing Montgomery Ward & Co. v. Pope, 532 So.2d 722, 722-24 (Fla. 3d DCA 1988)(Schwartz, C.J., dissenting). Since this is true, and since the Supreme Court will necessarily itself resolve the conflict with Taylor anyway, it is necessary only rather summarily to announce that we believe that each provision of the statute is sufficiently related to the others and to the general purpose of the act as a whole, and that the constitution is therefore satisfied.

As its name implies, the statute was designed to protect the public from repeat and serious violent felony offenders. With respect to the two of the thirteen sections of the statute questioned by Taylor, section 11, which imposes a duty to transmit the judgment of convicted aliens to federal authorities, is, we think, reasonably related to that purpose because it insures the removal of these felons from the country after their state sentences have been served. Similarly, although less obviously, section 13, which amends the definition of “conveyance” in the burglary statute to include a “railroad vehicle” as well as a “railroad car,” effects the expansion of the definition of the crime of armed burglary, one of the offenses included in the Habitual Felony Offender Act. In any event, the statute as a whole is quite plainly not “a ‘cloak’ for dissimilar legislation having no necessary or appropriate connection with the subject matter,” State v. Lee, 356 So.2d 276, 282 (Fla.1978), and thus does not violate Article III, Section 6, of the Florida Constitution.,

Accordingly, the order below is reversed. On remand, the designation of the defendant as a habitual felony offender shall be restored and his sentence adjusted accordingly.

Reversed, conflict certified.

LEVY, GODERICH, FLETCHER, SHEVIN, and RAMIREZ, JJ., concur.

GREEN, J.

(dissenting).

For the reasons stated in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), it is my belief that .Chapter 99-188, Laws of Florida, is violative of the single subject requirement of the Florida Constitution. See Art. Ill, § 6, Fla. Const. Therefore, I respectfully dissent.

JORGENSON and GERSTEN, JJ., concur.

COPE, J.

(dissenting).

Under any proper analysis, there is a single subject violation in this case.

I.

I write separately to propose that there is a simple method of analysis which should be followed in single subject cases. The key to this analysis is found in the constitutional provision itself, which states, “Every law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” Fla. Const. Art. Ill, § 6 (1968) (emphasis added).

The key to single subject analysis is that the Legislature must state the single subject in the title. It is the Legislature’s responsibility to say what the single subject is. Where a single subject challenge is raised, the judiciary’s sole role is to find the legislatively-stated single subject and determine whether it covers the contents of the legislative Act.

Under the relevant constitutional provisions the judiciary is not allowed to rewrite the legislatively-stated single subject. If the judiciary does this, it violates Article III, Section 6, as well as the doctrine of separation of powers. Id. Art. II, § 3.

Once these principles are understood, single subject analysis becomes straightforward. But it is plain from recent single subject decisions that there is widespread confusion about what an Act’s title is, and where to find the legislative statement of the single subject. The main point of this separate opinion is to suggest a pathway for single subject analysis.

The method of analysis I outline here can, I believe, readily be applied to almost all single subject cases. Regrettably, it cannot be applied in the case now before us on account of the Florida Supreme Court’s recent decision' in Tormey v. Moore, 824 So.2d 137 (Fla.2002). In that case, the court created a special rule where the Act includes a citation name — a “may be cited as” name. Id. at 140. It is my hope that the analysis presented here will persuade the court to recede from that part of Tormey which discusses what a title and single subject are. Tormey does make a positive contribution in allowing the remedy of severance in single subject cases, and that part of Tormey should be preserved intact.

II.

Before addressing the details of single subject analysis, a word should be said about the purpose of the single subject rule.

The main purpose of the single subject rule is notice. In order to assure that legislators, the public, and press understand what is contained in any item of proposed legislation, the single subject rule requires that a fair statement of the single subject appear in the title.

In the 2002 regular legislative session, over two thousand bills were introduced in each house of the Legislature. Fla. H.R. Jour. 3283 (Reg.Sess.2002); Fla. S. Jour. 2209 (Reg.Sess.2002). It is impossible for anyone involved in the process — legislators, public, or press — to read the text of each bill in order to discover what it deals with.

As has been stated:

The single subject rule has a two-fold purpose. First, it attempts to avoid surprise or fraud by ensuring that both the public and the legislators involved receive fair and reasonable notice of the contents of a proposed act. Secondly, the limitation prevents hodgepodge, logrolling legislation.

In re Advisory Opinion to the Governor, 509 So.2d 292, 313 (Fla.1987) (citations omitted).

If the single subject set forth in the title is, for example, “taxation,” then legislators, the public, and the press should be able to rely on the fact that the bill relates only to taxation — and does not contain a hidden provision relating, say, to environmental regulation.

As long as there is fair notice of the single subject — as stated in the title — everyone has fair opportunity to read the piece of legislation and determine what the proposed enactment will do.

III.

Single subject analysis should be simplicity itself.

The key point is that there must be a statement of the single subject, and this single subject “shall be briefly expressed in the title.” Fla. Const. Art. Ill, § 6 (emphasis added).

Thus:

1. Find the title.

2. Find the single subject which is stated in the title.

3. Determine whether the stated single subject covers the contents of the Act.

A.

Find the Title.

The title is always the language which begins, “An act relating to,” and ends, “providing an effective date.” The relevant version of the Act is the one which has been published in the Laws of Florida.

There are numerous Florida cases construing the single subject rule. Many of these quote the title, and it is plain from all of those decisions that the title is the language which begins “An Act relating to.” See Loxahatchee River Environmental Control Dist. v. School Bd. of Palm Beach County, 515 So.2d 217, 219 (Fla.1987); Bunnell v. State, 453 So.2d 808, 809 (Fla.1984); State ex rel. Shevin v. Metz Const. Co., Inc., 285 So.2d 598, 599 (Fla.1973); City of Pensacola v. Shevin, 396 So.2d 179, 180 (Fla.1981); Purk v. Federal Press Co., 387 So.2d 354, 358 (Fla.1980); United Gas Pipe Line Co. v. Bevis, 336 So.2d 560, 565 (Fla.1976); Shepard v. Thames, 251 So.2d 265, 266 (Fla.1971); Town of Monticello v. Finlayson, 156 Fla. 568, 23 So.2d 843, 845-46 (1945); Dade County v. Kerce, 137 Fla. 194, 188 So. 642, 643 (1938); State ex rel. Lichtenstein v. Coleman, 133 Fla. 717, 183 So. 163, 164 (1938); City of Hialeah v. State ex rel. Ben Hur Life Ass’n, 128 Fla. 46, 174 So. 843, 845 (1937); State ex rel. Dowling v. Butts, 111 Fla. 630, 149 So. 746, 748 (1933); City of Lakeland v. Amos, 106 Fla. 873, 143 So. 744, 746 (1932); State v. Sullivan, 99 Fla. 1070, 128 So. 478, 480 (1930); Whitney v. Hillsborough County, 99 Fla. 628, 127 So. 486, 490 (1930); State v. Love, 99 Fla. 333, 126 So. 374, 378 (1930); McSween v. State Live Stock Sanitary Bd., 97 Fla. 750, 122 So. 239, 242 (1929); Jackson Lumber Co. v. Walton County, 95 Fla. 632, 116 So. 771, 776 (1928).

B.

Find the Single Subject

The next step is to find the single subject within the title. This, too, is easily accomplished.

By custom, the single subject is the phrase which appears just after “An act relating to.” If for example the initial phrase is “An Act relating to taxation,” then the single subject is taxation.

C.

Determine if the Act Falls Within the Stated Single Subject

The final step in the single subject analysis is to determine if the contents of the legislative Act fall within the stated single subject. Thus, if the stated single subject is taxation, and all of the provisions of the Act embrace that “subject and matter properly connected therewith,” Fla. Const. Art. Ill, § 6, then the single subject rule has been satisfied and the statute is constitutional.

IV.

Although the foregoing is well established, it can also be demonstrated from legislative materials that the title to an Act is that segment which begins “An Act relating to.” That is so because it is the legislative prerogative to say what the title is. 48A Fla. Jur.2d Statutes § 65, at 347 & nn. 9-12 (2000) (collecting cases).

Every bill which is filed in the legislature begins as follows: “A bill to be entitled.” What follows is, of course, the title.

Further, under the dictates of Article III, Section 7, each bill is to be read in each house of the Legislature three times by title, and we know what the bill title is because it is contemporaneously published in the journal of each house. See State v. Kaufman, 430 So.2d 904, 905 (Fla.1983).

For illustration consider Senate Bill 1636, introduced in the 2002 legislative session. The bill reads as follows:

A bill to be entitled
An act relating to corrections; amending s. 944.02, F.S.; redefining the term “prisoner” for purposes of the state corrections code; providing penalties; providing an effective date.
Be It Enacted by the Legislature of the State of Florida.
Section 1. Subsection (6) of section 944.02, Florida Statutes, is amended to read:
944.02 Definitions. — The following words and phrases used in this chapter shall, unless the context clearly indicates otherwise, have the following meanings:
(6) “Prisoner” means any person who is under arrest and in the lawful custody of any law enforcement official, or any person convieted-and sentenced by any court and committed to any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department pursuant to lawful authority? as provided b-y-law.
Section 2. This act shall take effect July 1, 2002.

Fla. S.B. 1636 (2002), available at http://www.flsenate.gov (emphasis added).

The bill states on the first line that it is “A bill to be entitled.” The bill is saying on its face that the title to the Act is what comes next: the customary phrase “An act relating to” plus the rest of the title.

Under Article III, Section 7, Senate Bill 1636 was read by title as required. The Senate Journal stated:

By Senator Crist—
SB 1636 — A bill to be entitled An act relating to corrections; amending s. 944.02, F.S.; redefining the term “prisoner” for purposes of the state corrections code; providing penalties; providing an effective date.

Fla. S. Jour. 168 (Reg.Sess.2002) (emphasis added); id. at 411, 463.

When the bill became law (after minor amendments), it was designated chapter 2002-32, Laws of Florida. At that point it was no longer a bill, but had become a legislative Act. The phrase “A bill to be entitled” was removed. It was published in the Laws of Florida as follows:

CHAPTER 2002-32
Senate Bill No. 1636
An act relating to corrections; amending s. 944.02, F.S.; redefining the term “prisoner” for purposes of the state corrections code; providing an effective date.
Be It Enacted by the Legislature of the State of Florida:
. Section 1. Subsection (6) of section 944.02 Florida Statutes, is amended to read:
944.02 Definitions. — The following words and phrases used in this chapter shall, unless the context clearly indicates otherwise, have the following meanings:
(6) “Prisoner” means any person who is under civil or criminal arrest and in the lawful custody -of any law enforcement official, or any person convicted and sentenced by any court and committed to or detained in any municipal or county jail or state prison, prison farm, or penitentiary, or to the custody of the department pursuant to lawful authority^ as-provided by-law.
Section 2. This act shall take effect July 1, 2002.

Ch.2002-32, Laws of Fla.

Proceeding through the steps of the single subject analysis:

1. Find the title. The title is the language which begins, “An act relating to.”

2. Find the single subject. The single subject is the word or phrase which immediately follows “An act relating to.” In this case, the single subject is “corrections.”

3. Determine whether the stated single subject covers the contents of the Act. It does. The Act amends the definition of prisoner, which falls within the single subject of “corrections.”

V.

The next step is to apply this analysis to the Act which is now before us, chapter 99-188, Laws of Florida. In this section, I will apply the analysis as I believe it should be, and postpone any consideration of Tormey v. Moore.

As introduced in the Legislature, chapter 99-188 originated as House Bill 121. After amendment it became Committee Substitute for House Bill 121. Its title was four pages long; it stated in part:

CS/HB 121 — A bill to be entitled An act relating to sentencing; creating the “Three-Strike Violent Felony Offender Act”; amending s. 775.082, F.S.; redefining the term “prison releasee reoffen-der”; revising legislative intent; ... providing an effective date.

Fla. H.R. Jour. 1028-29 (Reg.Sess.1999) (emphasis added) (second reading); id. at 1128-29 (third reading).

After it became law, the Act was designated chapter 99-188, Laws of Florida. The phrase “A bill to be entitled” was removed. As published in the Laws of Florida, the title states in part:

An act relating to sentencing; creating the “Three-Strike Violent Felony Offender Act”; amending s. 775.082, F.S.; redefining the term “prison re-leasee reoffender”; revising legislative intent; ... providing an effective date.

To perform the single subject analysis:

1. Find the title. It is the language beginning “An act relating to.”

2. Find the single subject. The single subject is “sentencing.”

3. Determine whether the stated single subject covers the contents of the Act. Unfortunately, it does not.

The majority opinion accurately summarizes the contents of this lengthy piece of legislation, see majority opinion at 1113— 1114 n. 2, which runs forty-five printed pages in the Laws of Florida. Sections 1-10 and Section 12 pertain to sentencing, and are thus within the single subject of the Act.

The defense argues that Section 9 does not fit within the subject of sentencing because it modifies the drug trafficking statute to allow a trafficking prosecution on the basis of the number of cannabis plants which a person possesses, sells, or delivers. Heretofore the statute provided for prosecution on the basis of weight, rather than the number plants. Section 9 also modifies the weight benchmarks for prosecution. The defense argues that this amounts to a change in the definition of the substantive crime of trafficking, and thus is outside the scope of the single subject of sentencing.

In my view, this argument should be rejected. The possession, sale, or delivery of cannabis in these amounts is already illegal. The modification of the weights, and the allowing of a prosecution on the basis of the number of plants, affects the penalty which can be assessed but does not, so far as I can determine, criminalize previously legal conduct. For these purposes the 'modifications are properly viewed as relating to the penalty — which falls within the single subject of sentencing, or matter properly connected therewith. Fla. Const. Art. Ill, § 6.

It is next argued that Section 11 falls outside the single subject of sentencing. While this point is more debatable, ultimately Section 11 passes muster.

Section 11 of the Act provides that the court clerk shall provide to United States immigration officers the charging document, judgment, and sentence “in every case in which an alien is convicted of a felony or misdemeanor or enters a plea of guilty or nolo contendere to any felony or misdemeanor charge.” Id. By its terms the statute requires that this be done after sentence has been imposed on the non-citizen.

The single subject rule states that “[e]very law shall embrace but one subject and matter properly connected therewith, and the subject shall be briefly expressed in the title.” Fla. Const. Art. Ill, § 6 (emphasis added). Since the clerk is to notify the immigration authorities after completion of sentencing, this amendment is either within the single subject of sentencing, or is a “matter properly connected therewith.” Id.

The defense is correct, however, in saying that there is a single subject problem with Section 13. Section 13 amends the definition of a conveyance in the burglary statute to include a railroad vehicle. This expands the substantive crime of burglary to include burglary of a railroad vehicle. Id.; see §§ 810.011(3), 810.02, Fla. Stat. (1999).

This is a change in substantive criminal law. It is not a matter which relates to sentencing. There is thus a single subject violation with respect to Section 13. I agree with the Second District’s ultimate conclusion regarding Section 13. Taylor v. State, 818 So.2d at 549.

Because Section 13 is clearly outside the scope of the single subject — sentencing—it follows that chapter 99-188 violates the single subject rule and must be held unconstitutional.

VI.

If the foregoing analysis is accepted as correct, then there is a simple remedy under Tormey v. Moore, 824 So.2d 137 (Fla.2002).

The Tormey decision has made a positive contribution regarding the remedy for a single subject violation. The Tormey court said:

We agree with the parties that the proper remedy for this violation is to sever the part of the act that was not properly identified in the title. See Presbyterian Homes v. Wood, 297 So.2d 556, 559 (Fla.1974); see also Heggs v. State, 759 So.2d 620, 629 (Fla.2000) (reaffirming Wood rule). The rule set forth in Wood indicates:

An unconstitutional portion of a general law may be deleted and the remainder allowed to stand if the unconstitutional provision can be logically separated from the remaining valid provisions, that is, if the legislative purpose expressed in the valid provisions can be accomplished independently of those which are void; and the good and bad features are not inseparable and the Legislature would have passed one without the other; and an act complete in itself remains after the invalid provisions are stricken.-

824 So.2d at 142.

This reiterates the analysis that has prevailed since the early days of the single subject rule. As the Florida Supreme Court said in an early case:

The fact that an act is broader than its title does not, however, render the whole act void. If, says Mr. Cooley, by striking from the act all that relates to the object not indicated by the title, that which is left is complete in itself, sensible, capable of being executed, and wholly independent of that which is rejected, it must be sustained as constitutional. Cooley, Const. Lim. 179.

State ex rel. Gonzalez v. Palmes, 23 Fla. 620, 3 So. 171, 176 (1887).

Applying that remedy in this case would allow us to sever Section 13 from chapter 99-188, and leave Sections 1-12 intact.

Unfortunately, there is another part to the Tormey decision which analyzes what a title is and what a single subject is. Since we are bound to follow Tormey, the analysis I have outlined here is not permissible in this particular case. The next section will consider Tormey.

VII.

In Tormey the court considered a single subject challenge to chapter 89-100, Laws of Florida. Chapter 89-100 was enacted by Committee Substitute for House Bill 25. Although not set forth in the opinion, the title to Committee Substitute for House Bill 25 was as follows:

CS/HB 25 — A bill to be entitled An act relating to criminal penalties; creating the “Law Enforcement Protection Act”; providing legislative findings and intent; creating s. 775.0823, F.S.; establishing mandatory minimum penalties for persons convicted of murder, manslaughter, kidnapping, aggravated battery, and aggravated assault of law enforcement officers, correctional officers, state attorneys, and assistant state attorneys; prohibiting provisional credits; amending s. 944.277, F.S.; prohibiting the granting of provisional credits to inmates convicted of committing certain offenses against law enforcement officers, correctional officers, state attorneys, and assistant state attorneys; providing an effective date.

Fla. H.R. Jour. 643 (1989) (emphasis added). Within the body of the Act, Section 1 stated, “This act may be cited as the ‘Law Enforcement Protection Act.’ ” Tormey, 824 So.2d at 140 n. 4.

In deciding what the single subject of the Act was, the court said:

The key to the resolution of this case is the true title of the act in question. As noted above, the Department asserts that the title to the act is “An act relating to criminal penalties.” Indeed a portion of the title does include that phrase. Nevertheless, it is quite clear from a reading of the entire title that the Legislature intended and in fact named the act the “Law Enforcement Protection Act.” While the beginning of the act indicates that it is “an act relating to criminal penalties,” it then goes on to significantly narrow and restrict the types of criminal penalties addressed in the act. Thus, an honest reading of the title must result in the conclusion that this act is an act which provides for increased “criminal penalties” for persons who commit criminal offenses against law enforcement personnel and only law enforcement personnel. Further, the Legislature clearly restricted its intent to the protection of law enforcement personnel in the preamble to the act. The Legislature specifically found that since officers were constantly at risk and many had been assaulted or killed, it wished to increase the severity of the punishment for persons who commit violent offenses against law enforcement personnel and thereby discourage persons from committing such offenses against them. Consequently, the true subject of the act is enhanced penalties for persons who commit crimes against law enforcement personnel.

Id. at 140-41 (footnote omitted).

Respectfully, there is a mistake here. Instead of focusing on the legislatively-stated single subject — criminal penalties— the court ruled that where the Act contains a citation name (“This act may be cited as the ‘Law Enforcement Protection Act’ ”), the latter is controlling.

I respectfully urge the court to recede from this proposition. The single subject rule specifies that the statement of the single subject appear in the title, not in the body of the Act. The fact that in the body of the Act the Legislature created Section 1 to say that the Act may be cited as the Law Enforcement Protection Act is irrelevant from a single subject point of view. It should instead be made clear that the legislatively stated single subject is the word or phrase immediately following “An act relating to.”

VIII.

While I believe that Tormey should be revisited, the fact remains that Tormey is binding upon us. Thus we must follow Tormey’s analysis in deciding what the single subject is.

Once Tormey is applied to chapter 99-188, it becomes clear that almost all of chapter 99-188 must be struck down.

Under Tormey, we first examine the title to chapter 99-188, which states in part:

An act relating to sentencing; creating the “Three Strike Violent Felony Offender Act”; amending s. 775.082, F.S.; redefining the term “prison releas-ee reoffender”; revising legislative intent; ... providing an effective date.

Ch. 99-188, Laws of Fla.

We next look to Section 1 of the Act which says, “This act may be cited as the ‘Three-Strike Violent Felony Offender Act.’ ” We then treat Section 1 as controlling. The subject is narrowed to become sentencing of Three-Strike Violent Felony Offenders. See Tormey, 824 So.2d at 140-41.

Portions of Section 3 of chapter 99-188 create a sentencing category called “Three-time violent felony offender” and provide for enhanced sentencing penalties. Id. (codified as § 775.084(l)(c), (3)(b), (4)(c), (k), Fla. Stat. (1999)). This falls within the Tormey-mandated single subject.

The rest of Section 3, and all of the other sections of chapter 99-188, deal with other issues. This means that all of chapter 99-188 violates the single subject rule, except the part of Section 3 which creates the classification of three-time violent felony offender.

It follows under Tormey that the portions of Section 3 which deal with three-time violent felony offenders are constitutional and are to be preserved intact. The entire remainder of chapter 99-188 must be struck down as violating the single subject rule.

IX.

The next question is what ruling to enter in this particular case. Defendant-ap-pellee Corey Franklin had originally been sentenced as a habitual felony offender (“HO”), relying on amendments to the habitual offender statute contained in chapter 99-188. Upon defendant’s timely motion to correct sentencing error, the trial court ruled that chapter 99-188 violated the single subject rule and was unconstitutional. The court determined that under the law as it stood prior to the enactment of chapter 99-188, the defendant did not qualify as a habitual offender. The trial court resentenced the defendant to a non-habitual sentence, and this case is now before us on the State’s appeal.

As set forth in the previous section, the only part of chapter 99-188 which survives the single subject challenge is that part of Section 3 of chapter 99-188 which created the sentencing category of three-time violent felony offenders. The habitualization amendments relied on in sentencing this defendant fall outside of the provision dealing with three-time violent felony offenders, and thus the habitualization amendments enacted by chapter 99-188 are unconstitutional. The trial court was correct in granting the defendant’s motion and resentencing him to a non-habitual offender sentence.

In the meantime, the 2002 Legislature reenacted the sentencing provisions of chapter 99-188 in several separate Acts. See ch.2002-208, Laws of Fla. (reenacting Sections 5 and 12 of chapter 99-188); ch.2002-209 (reenacting Sections 4 and 12 of chapter 99-188); ch.2002-210 (reenacting Sections 1, 3, 6, and 12 of chapter 99-188); ch.2002-211, Laws of Fla. (reenacting Sections 2, 7, 8, and 12 of chapter 99-188); ch.2002-212, Laws of Fla. (reenacting Section 9, 10, and 12 of chapter 99-188).

Of interest here is chapter 2002-210, which reenacted Section 3. Section 3 contained the amendments to the habitual offender statute pursuant to which the State seeks to habitualize this defendant.

Chapter 2002-210 states that it is retroactive to the extent constitutionally permissible: .

Section 3. Except as specifically provided otherwise in this act, the provisions reenacted by this act shall be applied retroactively to July 1, 1999, or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit

ch.2002-210, § 3, Laws of Fla. (emphasis in original). By the language it chose, the Legislature recognized that it may not be constitutional to give retroactive effect to those portions of Act which retroactively increase criminal penalties.

On this issue, I agree with the analysis of the Second District Court of Appeal in Green v. State, 28 Fla. L. Weekly D 343, — So.2d --, 2003 WL 201345 (Fla. 2d DCA Jan. 31, 2003) (construing ch.2002-212, Laws of Fla.). The State is asking us to approve a retroactive increase in the penalty for a crime committed prior to the effective date of chapter 2002-210. As explained in Green, this would violate the ex post facto clause of the United States Constitution.

It follows that the State appeal must be denied, and the defendant’s non-habitual sentence should be affirmed.

X.

In footnote 4, the majority in this case proposes that enforcement of the single subject rule should be abandoned. Majority opinion at 1114-1115 n. 4. Saying that the current state of jurisprudence on the single subject rule is “perplexing,” id. at 1113, the majority suggests that the single subject rule be treated as merely directory, and not subject to judicial enforcement. Id. at 1114-1115 n. 4. Footnote 4 makes an alternative suggestion that the courts engage in some sort of “harmless error” analysis by which the courts would second-guess whether a particular provision of an Act would, or would not, have passed the Legislature absent the single subject violation. The latter suggestion invites an inquiry into legislative deliberations which violates the doctrine of separation of powers, while the former abandons the constitutional provision entirely.

The majority has it wrong. The benefits of the single subject rule far outweigh the burdens. It is important for the public, press, and legislators to have fair notice regarding the subject matter of bills that are introduced in the Legislature. The rule helps assure that amendments are germane to the bill being amended, and helps prevent unfair surprise in the lawmaking process. Forty-one states have a single subject rule of some type, 1A Norman J. Singer, Statutes and Statutory Construction § 17:1, at 2 (6th ed.2002 revision), and Florida’s provision has been in existence for 135 years. See note 3 supra. The single subject rule is clearly superior to the legislative method used in Congress, which has no germaneness requirement at ah.

The majority.says that the single subject rule affects only the legislators themselves, majority opinion at 1115 n. 4, but that is not so. The rule “attempts to avoid surprise or fraud by ensuring that both the public and the legislators receive fair and reasonable notice of the contents of a proposed act.” In re Advisory Opinion to the Governor, 509 So.2d at 313 (emphasis added).

Legislative compliance with the single subject rule has, on the whole, been very good. For decades, the Legislature has drafted bills and published titles using the same format. This has accomplished fair disclosure in the vast majority of cases.

Looked at another way, several hundred Acts become law each year. Few enactments are ever challenged on single subject grounds, and the number which succeed are small indeed.

While I disagree with the majority’s proposed cure, I agree with the majority’s diagnosis — single subject jurisprudence is in need of clarification and simplification. Meaningful single subject adjudication is impossible as long as there is no common agreement on what the title to an Act is, and where to find the single subject.

In this opinion I have suggested the following rules and guideposts:

1. It is the Legislature’s responsibility and prerogative to state what the title is, and what the single subject is.

2. The title is that part of an Act which begins “An Act relating to.”

3. The single subject is the phrase immediately following “An Act relating to.” This is sometimes referred to as the short title. Kaufman, 430 So.2d at 907.

4. The court’s role in a single subject case is to (a) find the title, (b) find the single subject, and (c) determine whether the body of the Act falls within the stated single subject.

If this proposed method of analysis is followed, then there can be order and predictability in single subject adjudication.

      . Cf. Tormey v. Moore, 824 So.2d 137 (Fla.2002)(ascribing decisive effect to specified "title” of statute).

      . The provisions of the Act may be described as follows:
      Section 1 provides a name for the Act;
      Section 2 amends certain portions of the Prison Releasee Reoffender Act;
      Section 3 creates the 'Three-strikes' law and redefines certain aspects of the Habitual Felony Offender Act;

        Section 4 creates a minimum mandatory for assault and battery against certain public employees;
      Section 5 creates a minimum mandatory for assault and battery against persons over the age of 65;
      Section 6 modifies the language in section 790.235 to accommodate the changes made in adopting the '3-Strikes' law;
      Section 7 creates the new offense of a ‘Repeat Sexual Batterer’ and corresponding minimum mandatory;
      Section 8 amends section 794.011 to accommodate the 'Repeat Sexual batterer' offense;
      Section 9 amends section 893.135 to require minimum mandatory sentences for trafficking in certain amounts of illegal drugs;
      Section 10 conforms numerous statutes to the amendment made in Section 9;
      Section 11 requires the clerk of the court to provide criminal records to United States immigration officers;
      Section 12 requires the Governor to advise the public of the penalties set out in the Act; and,
      Section 13 amends the definition of a conveyance in the burglary statute;

      . The appellant also challenges the appropriateness of section 9, which increases the sentences for marijuana offenses. We have no difficulty in concluding that the legislature acted within its authority in determining that imposing harsher penalties for drug crimes is related to the occurrence of violent offenses in our community.

      . Our confidence in the correctness of this result is strengthened by viewing the statute and its components in terms of the ''common sense,” Smith v. Department of Ins., 507 So.2d 1080, 1087 (Fla.1987), which, with respect, we find lacking in Taylor. We cannot overlook that the very basis of the single subject requirement is to prevent legislative "logrolling,” Martinez v. Scanlan, 582 So.2d 1167, 1172 (Fla.1991); 1A Norman J. Singer, Statutes and Statutory Construction § 17.1, at 5 (6th ed.2002), that is, to preclude factions in the legislature from securing a majority for two disparate proposals which could not each succeed on its own. It does not require the extensive analysis of the political realities involved in the particular legislation in which several courts (although admittedly not yet the Supreme Court of Florida) have indulged, Ohio Roundtable v. Taft, 119 Ohio Misc.2d 49, 773 N.E.2d 1113 (Com.Pl.2002); Defenders of Wildlife v. Ventura, 632 N.W.2d 707 (Minn.Ct.App.2001), to conclude that it was hardly necessary, for example, for those favoring the habitual offender parts of the statute to attach it to the highly controversial proposal of expanding the definition of a railroad conveyance in order to get them passed. (Any doubt about this proposition is dissipated by the fact that, after Taylor, each of the significant portions of Chapter 99-188, including the cannabis section, see supra note 3, but without the immigration and railroad provisions, was reenacted unanimously in Chapters 02-208, 02-209, 02-210, 02-211, 02-212, Laws of Florida.)
      Looking at it another way, the Supreme Court’s observation in Thompson, 750 So.2d at 643, that the statute there was not severa-ble because it was not possible to determine which of the differing subjects the legislature would have intended to survive, plainly has no application here. It is silly to suggest that the legislature would not have preferred to retain the three-strikes law and let the added protection of railroad equipment encompassed by section 13 go — which is what it actually did in 2002. See Green v. State, — So.2d -[, 2003 WL 201345] (Fla. 2d DCA Case no. 2D02-2430, opinion filed, January 31, 2003)[28 FLW D343](Altenbemd, J„ concurring). See also Tormey, 824 So.2d at 142 (applying severability rule to sections beyond the "title” of the act).
      By the same token, we see no principled reason why the general rule of harmlessness should not be applied to the present situation; that is, that a legislative "error” in attaching even an unrelated provision to an otherwise valid statute should not have any impact upon those, like this appellant, who are affected only by the valid ones. Similarly, persons like Franklin should be regarded as lacking constitutional "standing” to challenge the efficacy of sections like 9, 11, and 13, which have nothing to do with them. See 10 Fla. Jur.2d Constitutional Law § 73 at 431 (1997) ("Not only must a person be adversely affected by a statute in order to challenge its constitutionality but he also must be affected by the portion of the statute which he attacks. Thus, a person cannot raise an objection to part of a statute unless his rights are in some way injuriously affected thereby....").
      Finally, the constitutional facts that Franklin has no right to the passage of legislation in any particular way, and that, to the contrary, the single subject provision affects only the legislators themselves, leads also to consideration of the suggestion that that clause is properly subject only to interpretation and enforcement by the legislature (which frequently engages in just this sort of self-regulation on the floor) and the governor in making his decision on whether to approve a particular bill, rather than the courts. Such a holding would vindicate the sound and often discussed but seldom applied principle that every branch of the government is responsible for the enforcement of pertinent provisions of the constitution. See Campbell v. White, 856 P.2d 255 (Okla.1993)(dissenting opinion); Alexander Bickel, The Least Dangerous Branch (2d ed.1988); Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What The Law Is, 83 Geo. L.J. 217 (1994); Bonnie I. Robin-Vergeer, Disposing of The Red Herrings: A Defense of the Religious Freedom Restoration Act, 69 S.Cal.L.Rev. 589 (1996); John C. Yoo, Lawyers in Congress, 61 SPG Law & Contemp. Probs. 1 (1998).

      . Our determination that Chapter 99-188 is valid makes it unnecessary to decide whether we agree with the holdings of the Fifth District in Lecorn v. State, 832 So.2d 818 (Fla. 5th DCA 2002); Carlson v. State, - So.2d -[, 2002 WL 31202145] (Fla. 5th DCA Case no. 5D01-3089, opinion filed, October 4, 2002)[27 FLW D2162]; and Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002), notice to invoke discretionary jurisdiction filed, No. SC02-2630 (Fla. Dec. 16, 2002), that the separate reenactment of the provisions of Chapter 99-188 in Chapter 02-210 applies retroactively, or with the, directly contrary holding in Green v. State, - So.2d -, 2003 WL 201345 (Fla. 2d DCA Case no. 2D02-2430, opinion filed, January 31, 2003)[28 FLW D343]. See supra note 4. We may say, however, that even before Green we had serious doubts about the Fifth District's conclusion that Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), which deals with only a change in procedure, supports this result. Those doubts have become even stronger after Green. See In re F.G., 318 Ill.App.3d 709, 252 Ill.Dec. 607, 743 N.E.2d 181 (2000)(holding, on identical issue, that statute “correcting” single subject violation not "retroactive," distinguishing Dobbert). See also Green, -So.2d at - [28 FLW at D346](Casanueva, J., concurring)(indicating that retroactive application of 02-212 would violate the ex post facto clause).

      . The 2002 Legislature reiterated that the single subject of chapter 99-188 was sentencing. After the Second District Court of Appeal held that chapter 99-188 violated the single subject rule, Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), the 2002 Legislature "prepared five separate bills to reenact selected provisions of chapter 99-188, Laws of Florida, all of which relate to the single general issue of sentencing in criminal cases....” (Emphasis added). Ch.2002-208, at 1426, ch.2002-209, at 1428, ch.2002-210, at 1432, ch.2002-211, at 1444, and ch.2002-212, at 1454, Laws of Fla.

      . Section 13 was not in the original version of House Bill 121. When Section 13 was added, the single subject "sentencing'’ was no longer adequate, and should have been amended to a broader title, such as "criminal justice.”

      . The single subject rule has been in force in Florida since 1868. Fla. Const. Art. IV, § 14 (1868); Fla. Const. Art. Ill, § 16 (1885); Fla. Const. Art. Ill, § 6 (1968).

      . See note 1 supra. The Legislature in an abundance of caution reenacted all but Sections 11 and 13 of chapter 99-188.

      . Chapter 2002-210 became law on April 29, 2002. Ch.2002-210, at 1442, Laws of Fla.


author: SCHWARTZ, Chief Judge.

text:
    E.M.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2596.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Bennett H. Brummer, Public Defender and Bruce A. Rosenthal, Assistant Public Defender, for appellant.
    Charlie Christ, Attorney General and Andrea D. England (Fort Lauderdale), Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and GODERICH and WELLS, JJ.
   SCHWARTZ, Chief Judge.

The only point raised on this appeal from a finding of delinquency based upon an aggravated battery is that the three-foot long broomstick used by the juvenile’s co-respondent to strike the victim did not qualify as a deadly weapon under section 784.045(l)(a)2, Florida Statutes (2002). We disagree and affirm. See H.E.S. v. State, 773 So.2d 80 (Fla. 2d DCA 2000); Mitchell v. State, 698 So.2d 555 (Fla. 2d DCA 1997), review granted, 701 So.2d 868 (Fla.1997), approved, 703 So.2d 1062 (Fla.1997); Taylor v. State, 672 So.2d 580 (Fla. 1st DCA 1996). See generally D.C. v. State, 567 So.2d 998 (Fla. 1st DCA 1990). Compare Forchion v. State, 214 So.2d 751 (Fla. 3d DCA 1968)(broom handle thrown at victim not used as a deadly weapon); Perez v. State, 825 So.2d 957 (Fla. 3d DCA 2002)(barricade thrown at victim not used as deadly weapon).

Affirmed.


text:
    Fred A. BENTLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2891.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Fred A. Bentley, in proper person.
    Charlie Crist, Attorney General, for ap-pellee.
    Before GODERICH and GREEN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

The State properly concedes that the defendant is entitled to an additional 201 days credit for time served in case no. 97-32886. We agree with the State that the defendant’s remaining points lack merit. Gethers v. State, 838 So.2d 504 (Fla.2003).


author: PER CURIAM. GREEN, J. COPE, J.

text:
    The STATE of Florida, Appellant, v. Sonia BARNES, Appellee.
    No. 3D02-2023.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Charlie Crist, Attorney General and Michael J. Neimand, Assistant Attorney General, for appellant.
    Bennett H. Brummer, Public Defender and Robert Kalter and Lisa Walsh, Assistant Public Defenders, for appellee.
    Before SCHWARTZ, C.J., and JORGENSON, COPE, LEVY, GERSTEN, GODERICH, GREEN, FLETCHER, SHEVIN and RAMIREZ, JJ.
   ON HEARING EN BANC

PER CURIAM.

Reversed and remanded for further proceedings in accordance with State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). Conflict is certified with Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002).

SCHWARTZ, C.J., and LEVY, GODERICH, FLETCHER, SHEVIN, and RAMIREZ, JJ., concur.

GREEN, J.

(dissenting).

For the reasons stated in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002), it is my belief that Chapter 99-188, Laws of Florida, is violative of the single subject requirement of the Florida Constitution. See Art. Ill, § 6, Fla. Const. Therefore, I respectfully dissent.

JORGENSON and GERSTEN, JJ., concur.

COPE, J.

(dissenting).

I respectfully dissent for the reasons stated in my dissent in State v. Franklin, 836 So.2d 1112. The sentencing order should be affirmed.

Defendant-appellee Sonia Barnes was charged with trafficking in cocaine. The State sought a minimum mandatory sentence of seven years. That minimum mandatory provision was added to the Florida Statutes by Section 9 of chapter 99-188, Laws of Florida. The seven-year mandatory minimum sentence applied in cases involving two hundred grams or more of cocaine, but less than four hundred grams.

The trial court held chapter 99-188 unconstitutional as violating the single subject rule. For the reasons stated in my dissenting opinion in the Franklin case, Section 9 must be invalidated on account of the decision in Tormey v. Moore, 824 So.2d 137 (Fla.2002). It follows that the trial court was correct in holding this part of chapter 99-188 unconstitutional, and in sentencing the defendant without the seven-year mandatory minimum sentence.

The 2002 Legislature reenacted Section 9 of chapter 99-188 and declared the reenactment retroactive to July 1, 1999 “or as soon thereafter as the Constitution of the State of Florida and the Constitution of the United States may permit.” Ch.2002-212, § 4, Laws of Fla. For the reasons stated in my dissent in the Franklin case, retroactive imposition of this increased penalty would violate the ex post facto clause for crimes committed prior to the effective date of chapter 2002-212. The State appeal should be rejected and the sentencing order should be affirmed.

      The effective date of chapter 2002-212 was April 29, 2002.


text:
    Ralph MOLLOY, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Concept House, Inc., Appellees.
    No. 3D02-1413.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Robert V. Fitzsimmons, Miami, for appellant.
    John D. Maher (Tallahassee), for appel-lees.
    Before LEVY, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

In view of the fact that the Appeals Referee’s findings of fact, that the appellant was entitled to employee benefits because he was discharged for reasons other than misconduct, were supported by competent substantial evidence, we conclude that the Unemployment Appeals Commission improvidently reversed the decision of the Appeals Referee and reweighed the evidence. See Patterson v. FPL Group, Inc., 770 So.2d 298 (Fla. 3d DCA 2000). Accordingly, we reverse the Unemployment Appeals Commission’s Order and remand with instructions to reinstate the Appeals Referee’s decision that there was no disqualifying conduct and that the appellant is eligible for unemployment benefits.

Reversed and remanded.


text:
    Alfred Wayne LEE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-1480.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Alfred Wayne Lee, in proper person.
    Charlie Crist, Attorney General, and Frank J. Ingrassia, Assistant Attorney General, for appellee.
    Before JORGENSON, GODERICH and SHEVIN, JJ.
   ON MOTION FOR REHEARING GRANTED

PER CURIAM.

The opinion filed November 6, 2002, is withdrawn, and the following is substituted in its place.

Defendant appeals from the denial of his motion for postconviction relief. Contrary to the trial court’s conclusion, the motion is timely pursuant to Wood v. State, 750 So.2d 592 (Fla.1999). However, the trial court correctly denied the motion on the merits, as defendant faile'd to establish prejudice under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Moreover, the record establishes that there was a factual basis for defendant’s plea, and that defendant, through counsel, stipulated to that factual basis.

AFFIRMED.


text:
    Jeanette NORRIS, M.D., Jerry D. Morris and Shirley O. Morris, Appellants, v. Ottie KARL, Ray Kirkland, d/b/a Kirkland Realty, Inc. and Gloria Kirkland, Appellees.
    No. 1D02-1388.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Elizabeth W. Willis, Tallahassee; Guyte P. McCord, III, of McCord, Bubsey & Ketchum, L.L.P., Tallahassee, for Appellants.
    H. Guy Green, Marianna, for Appellees.
   PER CURIAM.

AFFIRMED. See Canfield v. Cántele, 837 So.2d 371 (Fla.2002).

BOOTH, WEBSTER and LEWIS, JJ., Concur.


text:
    Christopher Lamont DOUGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-613.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Bryan Jordan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 812 So.2d 609 (Fla. 1st DCA 2002).

BOOTH, WEBSTER and LEWIS, JJ., concur.


text:
    James Michael WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4211.
    District Court of Appeal of Florida, First District.
    Feb. 12, 2003.
    Nancy Daniels, Public Defender, Tallahassee, and David Dunkerley, Assistant Public Defender, Milton, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order, dated December 31, 2002, we dismiss this appeal for lack of jurisdiction. The notice of appeal filed on October 9, 2002, appealing the Final Judgment and Order of Commitment, entered on July 23, 2002, is untimely. The jury verdict was dated July 18, 2002. Therefore the Motion for New Trial which was served on August 1, 2002, was untimely because it was served more than ten days after the jury verdict was entered. See Fla. R. Civ. P. 1.530(b). Accordingly, the Motion for New Trial did not delay the rendition of the Final Judgment and Order of Commitment. See Fla. R.App. P. 9.020(h). Because the notice of appeal was filed more than 30 days after rendition of the order, this Court is without appellate jurisdiction. See Fla. R.App.9.110(b).

DISMISSED.

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


author: WARNER, J.

text:
    Kristen and Donald BRADLEY, as Parents, Natural Guardians and Next Friends of their daughter, Kelly Bradley, a minor child, Appellants, v. Michelle BROTMAN, Appellee.
    No. 4D00-4236.
    District Court of Appeal of Florida, Fourth District.
    Feb. 19, 2003.

      John H. Pelzer and Fabienne Leconte of Ruden, McClosky, Smith, Schuster & Russell, P.A., and Jon E. Krupnick of Krup-nick, Campbell, Malone, Roselli, Buser, Slama, Hancock, McNelis, Liberman & McKee, P.A., Fort Lauderdale, for appellants.
    Vanessa A. Reynolds of Conrad & Scherer, LLP, Fort Lauderdale, for appel-lee.
   ON MOTIONS FOR REHEARING

WARNER, J.

The motions for rehearing are hereby denied. We withdraw our previously issued opinion and substitute the following in its place.

We confront in this case the necessity to reverse a final judgment due to defense counsel’s misconduct in the admission of evidence at trial. The trial court refused to grant plaintiffs request to exclude the evidence because plaintiffs counsel stipulated to the admission of the medical records in question. We conclude that there was no meeting of the minds as to a specific portion of the medical records, and the records should have been redacted to remove that portion regarding the doctor’s opinion based upon surprise and prejudice. The trial court’s refusal to redact this portion of the record was an abuse of discretion, requiring reversal for a new trial.

There are actually two different incidents involving attorney misconduct in this case. One does not require reversal. However, we detail both because at one point in the progress of this case the facts intersect.

In September 1996, Kelly Bradley, who was two years old at the time, was bitten on the lip by a dog belonging to appellee Brotman. Some weeks later her parents noticed her hair falling out. Through consultations and treatment with a number of physicians, she was diagnosed with alope-cia areata, a skin disease resulting in hair loss on the scalp. Her parents ultimately filed suit against Brotman, and whether the dog bite and consequent stress could have caused or aggravated the alopecia became the main issue.

Bradley’s counsel, Jon Krupnick, listed several doctors in his expert witness list for trial, including Dr. Bernhardt. Defense counsel, Reid Cocalis, moved to limit the list, and the trial court ordered the list reduced. Krupnick’s amended list included only three physicians to testify on causation. Dr. Bernhardt was not on the list. When a subsequent settlement offer from Krupnick indicated that Dr. Bernhardt would have evidence to support the claim, Cocalis sought to speak to the doctor, whom he had not deposed. On May 23, 2000, just a few days before trial, Cocalis called Dr. Bernhardt without notice to Krupnick. Cocalis reminded the doctor that he had treated him in the past. He then told the doctor that he represented Brotman in this case. Cocalis asked the doctor, “off the record,” if he was intending to testify regarding causation and the substance of that testimony. When Dr. Bernhardt told Cocalis to discuss the matter with Krupnick, Cocalis replied that he could not trust him. The doctor ended the call quickly and immediately called Krup-nick.

Krupnick filed a motion to strike Brot-man’s pleadings as a result of the contact with Dr. Bernhardt, alleging that the conversation violated section 455.667(5), Florida Statutes (1999), which prevents any ex parte communication with a physician regarding a patient’s condition. Because Bernhardt was a crucial witness and now would not testify, Krupnick argued a sanction should be imposed.

Brotman argued that regardless of Co-calis’ conversations with Dr. Bernhardt, the doctor was not listed on the reduced expert list, and could not testify. Allowing him to do so at this late date would prejudice the defense. The court authorized Kelly Bradley’s guardian ad litem to investigate the issue. After speaking with Dr. Bernhardt, the guardian reported that the contact was willful and that the doctor’s trial testimony was tainted. At a second hearing on the day of trial, the court ultimately denied Krupnick’s motion to strike the pleadings.

At the same time the incident with Dr. Bernhardt was being resolved, Cocalis issued two subpoenas duces tecum for trial on May 23 and 25 to the medical records custodians with Drs. Unis’ and Bernhardt’s offices and to Dr. Unis personally, for all documents relating to Kelly’s treatment. Krupnick did not receive notice that these trial subpoenas were issued. Contrary to the directives of the subpoena, which requested the presence of a records custodian at trial, Dr. Unis sent his medical records to Cocalis’ office. Cocalis did not notify Krupnick upon receiving these records. At trial on May 30, when arguing about the Bernhardt contact, Krupnick asked Cocalis whether he had any other ex parte contacts with plaintiffs experts. Co-calis stated that the only contact was the subpoena for the records custodian, “where the records custodian has called my office.” When Krupnick asked who was contacted, Cocalis’ co-counsel stated she contacted Dr. Bernhardt’s office. Co-calis did not mention the subpoena which he had issued for Dr. Unis’ records.

Dr. Unis, a dermatologist, examined Kelly only once in 1996 and diagnosed the alopecia areata. He explained the condition to the Bradleys and suggested that they get a second opinion. In 1999, his deposition was taken, and his notes of this one visit were attached to the deposition. Shortly before trial in 2000, Krupnick called him regarding Kelly’s condition. Dr. Unis noted this conversation in Kelly’s medical record on May 11, 2000 (six months after the deposition). This note stated, “I advised him that I did not think that the patient’s persistent problem with alopecia areata at this point would be due to stress from a prior dog bite.” A second notation indicated that he sent his records to Cocalis on May 24, 2000. Krupnick did not receive these amended medical notes.

At trial, after an abundance of medical testimony from each side, Krupnick read Dr. Unis’ deposition to the jury. During his deposition, Dr. Unis testified that because medical studies had cited stress as a possible cause or aggravating factor of al-opecia areata, he would not be surprised if a study linking alopecia areata with dog bites existed. However, he did not formulate an opinion regarding the cause of Kelly’s condition. At his deposition, Dr. Unis identified his medical records, and they were introduced as defendant’s Exhibit 1. When Cocalis attempted to call Dr. Unis’ records custodian at trial, Krupnick announced he would stipulate to their admission because Dr. Unis’ deposition had just been read. What Cocalis presented to the clerk for admission were not the records attached to the deposition but rather the records sent to his office, which included the note regarding the telephone conversation with Krupnick, of which Krupnick was unaware.

At the close of all the evidence, Krup-nick reviewed the evidence that had been admitted and discovered the additional note regarding the telephone conversation in Dr. Unis’ records. Krupnick renewed his motion for sanctions and to strike the pleadings, both of which were denied. He also moved to have the note removed from the record on the grounds of fairness, the lack of opportunity to subject it to cross-examination, and that it had no probative value. The court denied the motion because Krupnick had stipulated to the entry of the document. Before Cocalis began his closing argument, Krupnick again argued that Dr. Unis’ medical records were obtained in violation of section 455.667(5), his opinion was not based upon a medical probability, and Cocalis fraudulently entered the notes into the record. Cocalis responded that Krupnick was at fault for not reviewing the documents before stipulating to their entry into evidence. Krup-nick noted that his stipulation was to the medical records introduced during Dr. Unis’ deposition, which did not include the telephone note. The court refused to redact the record.

During Cocalis’ closing arguments, he showed the jury a poster-board-size version of Dr. Unis’ medical note on the telephone conversation with Krupnick. Cocal-is highlighted that Dr. Unis was Kelly’s only physician that Krupnick did not call to present his opinion because Dr. Unis did not think Kelly’s condition was related to the stress from the dog bite.

The jury awarded Bradley her past medical expenses but did not award any future damages. Krupnick filed a post-verdict motion to strike Brotman’s pleadings and a motion for new trial based upon the ex parte contact with the doctors. The court denied the motion and Bradley filed this appeal.

We will address the issues in reverse order as we conclude that the failure to exclude the telephone note on the medical records of Dr. Unis is reversible error. As to the contact with Dr. Bernhardt, while it was unlawful and unprofessional, the denial of sanctions on this issue was not an abuse of discretion.

Section 455.667(5) (renumbered as section 456.057(5)), provides that a patient’s medical records,

[M]ay not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient’s legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient.

The statute allows for medical records to be furnished without the patient’s written authorization under certain circumstances, including upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records. In Acosta v. Richter, 671 So.2d 149, 154-55 (Fla.1996), the supreme court noted that this section created a “broad and express privilege of confidentiality as to the medical records and the medical condition of a patient” and “an explicit scheme ... to strictly control the dissemination of a Florida patient’s medical information.” Under this statute, the production of Kelly’s medical records could be compelled only through a subpoena with proper notice to the Bradleys or Krupnick, as Kelly’s legal representative. Admittedly, Cocalis did not notify Krup-nick of the subpoena and violated the statute. Professional conduct would have also required him to provide copies of the amended medical records to Krupnick once he received them. What makes the statutory violation more egregious is that Co-calis failed to reveal the subpoena and the receipt of Dr. Unis’ medical records when Krupnick asked Cocalis in court whether he had any other contact with Kelly Bradley’s physicians.

Because Krupnick discovered Dr. Unis’ telephone note that opined the dog bite did not cause the alopecia before that evidence was revealed to the jurors, it could have been excised without any prejudice to either side. The court’s refusal to redact the note from the record was an abuse of its discretion.

While Brotman argues that Krup-nick is bound by his stipulation to the admission of the medical records, it is apparent to us from the record that Krup-nick was stipulating only to those medical records that Dr. Unis identified at his deposition. Krupnick did not know, and had no reason to know, that the doctor had added a note to the medical records after his telephone call.

In McGoey v. State, 736 So.2d 31, 33-34 n. 2 (Fla. 3d DCA 1999), the state and defense agreed not to admit McGoey’s pretrial statements into evidence. At trial, the state sought to introduce other statements made by McGoey. When the defense objected, the state maintained that it stipulated to exclude only certain statements. See id. at 34. The trial court agreed with the state and admitted some of McGoey’s statements. See id. On appeal, the court determined that “[i]t is clear to us ... that there was no meeting of the minds between the parties as to the nature or scope of this purported pretrial stipulation.” Id. The court discussed the nature of a stipulation in court:

A stipulation is an agreement, admission, or concession made in a judicial proceeding. The essence of a stipulation, however, is an agreement between the parties. However,
(1) There is no manifestation of mutual assent to an exchange if the parties attach materially different meanings to their manifestations and (a) neither party knows or has reason to know the meaning attached by the other; ...
Thus, a “meeting of the minds” by the parties is essential to a stipulation.

Id. (citations omitted) (quoting Restatement (Second) of Contracts § 20 (1979)). The court further determined that “[t]o avoid the consequences of a stipulation properly entered into, a party must show that the agreement is the product of a fraud, misrepresentation or mistake of fact.” Id. at 35 (emphasis added). The third district ultimately determined that there was confusion and no meeting of the minds as to the stipulation regarding the pretrial statements and reversed the conviction for a new trial.

Similarly, from the record in this case it is apparent that there was no “meeting of the minds” as to the admission of Dr. Unis’ medical records. The parties attached materially different meanings to the stipulation when admitting the medical records into evidence. Krupnick intended to stipulate to the admission of the records attached to the deposition, and Cocalis was attempting to admit the amended medical notes containing the telephone conversation. It was not necessary for the court to conduct a hearing on whether any fraud was involved. It was clear from the face of the record that there was no meeting of the minds and that a mistake of fact had occurred, from which Krupnick should have been relieved.

Even if we were to call this a unilateral mistake on Krupnick’s part to have stipulated to the admission of a record he did not actually review, Bradley would still be entitled to relief. It does not comport with fundamental fairness for an attorney to mislead his opponent and then reap the benefit of his own misconduct. Rules Regulating the Florida Bar 4-3.4(a) provides that “[a] lawyer shall not ... unlawfully obstruct another party’s access to evidence or otherwise ... conceal a document or other material that the lawyer knows or reasonably should know is relevant to a fending ... proceeding....” Id. (emphasis added). Here, Cocalis subpoened the medical records without notice in violation of section 455.667(5), failed to notify Krup-nick of its receipt, and concealed its receipt from Krupnick when asked directly in court whether other witnesses had been contacted.

The prejudice to Bradley in the admission of the note is apparent. While in deposition Dr. Unis was unsure of the cause of the alopecia, in the telephone note he expressed an opinion that the dog bite could not have been the cause of the condition. Had Krupnick known of the note, he could have called Dr. Unis to explore his opinion and dissipate any prejudice. As it occurred at the very end of the trial, Krup-nick had no opportunity to cure the prejudice. Thus, Bradley suffered the type of procedural prejudice referred to in Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981), from which the court should have granted relief.

Moreover, the note may have been inadmissible as a business record on the grounds that it was “untrustworthy” because the opinion was given without having conducted another examination of Kelly or having followed her progress. See generally Beckerman v. Greenbaum, 439 So.2d 233, 235 (Fla. 2d DCA 1983) (holding a supplemental record was inadmissible where it was made in 1980 to summarize a 1974 transaction and was prepared in anticipation of trial not as part of business activity).

Even if the medical record satisfied the business record exception, the opinion still may be excluded if it is unfairly prejudicial or confusing under section 90.403, Florida Statutes. This prejudice or confusion is more likely to occur in a case where the expert does not testify at trial and is not subject to cross-examination. See Love v. Garcia, 634 So.2d 158, 160 (Fla.1994); accord McElroy v. Perry, 753 So.2d 121, 125-26 (Fla. 2d DCA 2000); Phillips v. Ficarra, 618 So.2d 312, 313-14 (Fla. 4th DCA 1993); see generally Lazorick v. Brown, 195 N.J.Super. 444, 480 A.2d 223, 226 (App.Div.1984) (noting that despite the business records exception to the hearsay rule, the record may be excluded as substantive proof if the opinions therein relate to the diagnosis of a complex medical condition difficult to determine or substantiate and the expert is unavailable for cross-examination). See also Charles W. Ehrhardt, Florida Evidence § 803.6 (2001 ed.).

Section 90.403 allows the trial court to exercise its discretion to exclude otherwise relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.” McCormick on Evidence notes that opinions and diagnoses contained in medical records may be excluded from admission under the similar Fedéral Rule of Evidence 403. McCormick states that the,

[Admissibility of all such [opinions and diagnoses] is not assured. First, where indications of lack of trustworthiness are shown, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted. Moreover, inclusion of opinions or diagnoses within the rule only removes the bar of hearsay. In the absence of the availability of the expert for explanation and cross-examination, the court may conclude that probative value of this evidence is outweighed by the danger that the jury will be misled or confused. This concern is particularly significant if the opinion involves difficult matters for interpretation and a central dispute in the case, such as causation.

John W. Strong, MoCormioK on Evidenoe § 293 (5th ed.1999) (footnotes omitted) (emphasis added).

The second district recognized this limitation on an otherwise admissible business record in Perry. See 753 So.2d at 126. In that case, the court held the trial court abused its discretion in admitting the report of an independent medical examination because the report was prepared solely for litigation purposes, and thus, lacked trustworthiness. See id. at 127. However, the court also noted that, if the physician had not testified and not been subjected to voir dire and cross-examination, then that “would, without question, render the admission” an abuse of discretion. Id. at 126 (emphasis added).

In this ease, the court could have easily prevented the prejudice and cured any potential error by excising the reference to the telephone note in the record. That is what Krupnick repeatedly asked the court to do. The jury had not seen the notes. Therefore, the jury’s mind was not as yet “tainted” by this evidence. We conclude for all of these reasons that the court abused its discretion when it failed to redact Dr. Unis’ medical records to remove the telephone note.

As to the contact with Dr. Bernhardt, this too violated section 455.667(5), prohibiting contact with a patient’s physician without consent, which appellee candidly admits. This violation may have been more egregious than the violation with Dr. Unis’ records because the initial contact was intentional, and Cocalis sought to use his family connection with Dr. Bernhardt to obtain information he was statutorily not entitled to. However, it was not as prejudicial because Dr. Bernhardt had not been listed as a causation witness and because the doctor revealed nothing to Cocalis when he called. Thus, under these circumstances we cannot say that the trial court abused its discretion in failing to strike Brotman’s pleadings. However, the trial court may reconsider the motion for sanctions at a new trial if Krupnick calls Bernhardt to testify. Krupnick expressed concern that Bernhardt, Kelly Bradley’s long-time treating dermatologist, would now be prejudiced against Kelly after this entire incident. Whether that prejudice exists and whether it would require the striking of pleadings, the removal of Mr. Cocalis from the case, or other monetary sanctions, are issues we leave for further consideration after remand. See Moakley v. Smallwood, 826 So.2d 221, 227 (Fla.2002).

In sum, we reverse and order a new trial on the basis of the admission of Dr. Unis’ medical records, but we condemn the actions of defense counsel as to both the contact with Dr. Bernhardt and the strategic concealment of Dr. Unis’ records.

SHAHOOD and HAZOURI, JJ., concur.

      . Because the trial court denied Erupnick’s request to redact the record, Krupnick did not need to move for a mistrial to preserve this issue for appeal. See Simpson v. State, 418 So.2d 984, 986 (Fla.1982); accord Baldez v. State, 679 So.2d 825, 826 (Fla. 4th DCA 1996). We also do not construe the trial court's comments during counsel's argument as a suggestion that the court was actually offering a mistrial.


author: J^FOGG, J.

text:
    Lance A. TARANTO v. STRANCO, INC.
    No. 2002 CA 0243, 2002 CA 0244.
    Court of Appeal of Louisiana, First Circuit.
    Dec. 31, 2002.

      Daniel E. Becnel, III, LaPlace, for Plaintiff — Appellant Lance Taranto.
    Thomas J. Eppling, Lance E. Harwell, Metairie, for Defendant — Appellee Stran-co, Inc.
    Before: FOIL, FOGG, and KLINE, JJ.

      . Retired Judge William F. Kline, Jr. is serving as judge pro tempore by special appointment of the Louisiana Supreme Court.

   J^FOGG, J.

In this workers’ compensation case, the salient issue raised on appeal is whether the claimant proved a compensable injury. For the following reasons, we affirm.

Allegedly, on August 5, 1998, while employed as a mechanic by Stranco, Inc., Lance A. Taranto was struck in the face by a falling tailgate. Taranto also asserts his back “went out” on September 22, 1998, while he was working oh a truck. Stranco paid some of Taranto’s medical expenses, but refused to pay disability benefits. Taranto sued Stanco for workers’ compensation benefits. After a trial, the workers’ compensation judge denied his claim. Taranto appeals.

Initially, the claimant asserts the workers’ compensation judge erred in admitting into evidence a videotape of the claimant. On numerous occasions before trial, the claimant propounded interrogatories and requested production of any information or surveillance from the defendant pertaining to this claim. The claimant specifically requested the name, address, and telephone number of any person performing surveillance. The defendant initially denied possessing any such information. However, three months before trial, the defendant supplemented its answers by listing the eight requests by date and inviting the claimant to inspect and copy “documents responsive [to] these interrogatories and requests.” In addition, the defendant informed the claimant that copies would be made upon the payment of expenses. The defendant also amended its pre-trial statement to add videotapes as evidence to be offered at trial.

At trial, the claimant objected to the introduction of the videotape, asserting the defendant had failed to answer the interrogatories and requests for production. The workers’ compensation judge overruled the objection and allowed the introduction of the videotape.

| aLSA-C.C.P. art. 1458 requires each interrogatory to be answered separately. Article 1428 requires a party to seasonably supplement discovery responses. The workers’ compensation judge has great discretion in deciding whether to receive or refuse testimony or evidence objected to on the grounds of failure to abide by the statutory mandate. See Abdon Callais Boat Rentals, Inc. v. La. Power and Light Co., 555 So.2d 568 (La.App. 1 Cir.1989), writ denied, 558 So.2d 583 (La.1990).

When a party has not satisfied the technicality of supplementing responses, the reviewing court can look to the record for a willful or negligent failure to disclose information in determining whether the workers’ compensation judge abused his discretion. Abdon Calíais,-555 So.2d at 576. However, an opponent with actual notice of a witness’s identity cannot wait to object to the testimony until trial merely for strategic purposes. Likewise, an opponent who received actual notice of the existence of surveillance videotapes cannot, at trial, rely on a technical deficiency to object to their use. If actual notice is acquired within a reasonable time, a party must seek some corrective action or the party will be deemed to have waived the right to object at trial. See Abdon Calíais, 555 So.2d at 576.

Our review of the record reveals no intentional deception by the defendant. Furthermore, the three-month span between the response by the defendant and the trial, in addition to the amended pretrial statement, diminishes the degree of neglect with which the defendant can be charged. Accordingly, we find no abuse by the workers’ compensation judge in admitting into evidence the videotape offered by the defendant.

The claimant also asserts the workers’ compensation judge erred in finding the claimant failed to meet his burden of proving a disability as a result of the August 5 and the September 22 accidents. The factual finding regarding whether a |4workers’ compensation claimant has met his burden of proving a disability should be given great weight and should not be overturned on appeal absent manifest error. Bazar v. Hull, 95-1427 (La.App. 1 Cir. 2/23/96), 669 So.2d 603. Where there is a conflict in testimony, reasonable evaluations of credibility and reasonable inferences of fact will not be disturbed on appeal. Bazar, 669 So.2d at 604.

At trial, the claimant testified that he reported the falling tailgate incident on August 5 and received medical attention for head, jaw, neck, right arm, and right elbow pain. He returned to work and completed his shift that day.

On September 22, the claimant asserts he felt his back “give” while he was working on a truck. He reported the incident, but no accident report was completed. The claimant left work and received medical attention. ' His chief complaint at that time was lower back pain. Although the claimant returned to work, he was absent from work two of the following three workdays. He resigned from Stranco on October 30,1998.

From November 1998 until August 1999, the claimant worked for K.T. Construction as a truck driver, driving up to 400 miles per day. He worked for Advanced Plumbing from January 2000 until March 2000, performing manual labor. The workers’ compensation judge found the claimant’s subsequent employment and activities discredited his claim of disability resulting from the incidents at Stranco. We cannot say the workers’ compensation judge erred in his finding of no disability.

For the foregoing reasons, we affirm the judgment of the workers’ compensation judge. Costs of this appeal are assessed to Lance A. Taranto.

AFFIRMED.

      . Finding no error in the workers' compensation judge's finding that the claimant failed to meet his burden of proving a disability, we pretermit discussion of the judge’s finding concerning the occurrence of the August 5, 1998 accident.