text:
    Antonio L. MIKELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-717.
    District Court of Appeal of Florida, Third District.
    July 16, 2003.
    Rehearing and Rehearing En Banc Denied Sept. 24, 2003.

      Antonio L. Mikell, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before COPE, GERSTEN, and SHEVIN, JJ.
   PER CURIAM.

Antonio Mikell (“defendant”) appeals the denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm, but remand with instructions.

The defendant was found guilty of burglary with an assault and robbery. He was sentenced to life imprisonment with a fifteen-year minimum mandatory sentence for the burglary conviction, and to a concurrent term of thirty years with a ten-year minimum mandatory sentence on the robbery conviction.

The defendant claims the burglary conviction was enhanced to a life felony pursuant to Section 775.087(1), Florida Statutes (1994), based on the use of a weapon during the commission of the offense. Thus, he claims that he could not be sentenced as a habitual felony offender for that conviction, according to Lamont v. State, 610 So.2d 435 (Fla.1992).

A review of the information, verdict and judgment reflects that the defendant was neither charged with nor found guilty of either use of a firearm or committing an aggravated battery during the burglary. Instead, he was only found guilty of the first degree felony of burglary with an assault, which was punishable by life pursuant to Section 810.02(2), Florida Statutes (1993). The conviction was not enhanced pursuant to Section 776.087. Thus, we affirm the order denying the defendant’s motion to correct illegal sentence.

However, although the defendant’s conviction was not enhanced pursuant to Section 775.087, the judgment contains a reference to that Section. Accordingly, we remand the case with directions that any references to Section 775.087 be deleted from the judgment. See Nino v. State, 843 So.2d 347 (Fla. 3d DCA 2003).

Affirmed, but remanded with directions.


source: Caselaw Access Project

author: PLEUS, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Dreama Adea BELL, Appellee.
    No. 5D02-3593.
    District Court of Appeal of Florida, Fifth District.
    July 18, 2003.
    Rehearing Denied Sept. 15, 2003.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Rosemarie Farrell, Assistant Public Defender, Daytona Beach, for Appellee.
   PLEUS, J.

The state appeals Dreama Bell’s downward departure sentence and argues that the lower court’s reasons for departing are not supported by substantial competent evidence. We agree. Accordingly, we reverse and remand for imposition of a guidelines sentence.

Bell was arrested for driving the getaway car after her co-defendant robbed two people in a parking lot. She was charged with principal to robbery with a deadly weapon and driving on a suspended license. Pursuant to a plea agreement with the state, Bell agreed to testify against her co-defendant. In exchange, the state allowed Bell to plead to the reduced charges of accessory after the fact and no valid driver’s license, for which she was sentenced to one year community control followed by three years probation.

Bell met with her community control officer, who informed her she was not allowed to drive with a restricted license without an adult accompanying her. Bell agreed. Two days later, the officer observed Bell driving alone. The officer violated Bell’s community control for failing to follow instructions and for committing the new offense of violation of driver’s license restrictions. Bell pled guilty to the violation without having any plea agreement. Despite a guidelines score of 15.3 months incarceration, the lower court revoked Bell’s community control and sentenced her to 120 days in jail, followed by new periods of community control and probation. The court noted four reasons for downwardly departing: a legitimate, un-coerced plea; limited capacity to understand the seriousness of her offense; previous cooperation with the state, and an isolated and unsophisticated act.

The state argues that the lower court’s action constituted a downward departure sentence without substantial competent evidence to support its reasons for departure. Bell does not address this argument at all. Instead, she argues that the lower court’s action was not a downward departure sentence or any other type of sentence. She characterizes the lower court’s action as a “modification and reinstatement” of the original sentence. Thus, Bell contends that the state lacks authority to appeal the lower court’s modification of community control. We disagree.

Florida Rule of Appellate Procedure 9.140(b)(1)(D) permits a defendant to appeal “orders revoking or modifying probation or community control.” While there is no corresponding provision for state appeals, Rule 9.140(c)(l)(K) allows the state to appeal orders “imposing a sentence outside the range permitted by the sentencing guidelines.” Section 948.06(1), Florida Statutes (2002), states, in pertinent part:

The court, upon the probationer or offender being brought before it, shall advise him or her of such charge of violation and, if such charge is admitted to be true, may forthwith revoke, modify, or continue the probation or community control or place the probationer into a community control program. If probation or community control is revoked, the court shall ... impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into comr munity control....

(Emphasis added).

Case law applying these provisions has produced two lines of cases. One line of cases clearly allows the state to appeal a downward departure sentence imposed after- revocation of probation or community control. See, e.g., State v. Hurley, 772 So.2d 594 (Fla. 1st DCA 2000); State v. Knopp, 765 So.2d 164 (Fla. 2d DCA 2000); State v. Woodson, 745 So.2d 570 (Fla. 5th DCA 1999); State v. Jordan, 678 So.2d 526 (Fla. 5th DCA 1996); State v. Krueger, 664 So.2d 26 (Fla. 3d DCA 1995). In all of the above cited cases, appellate courts reversed downward departure sentences imposed after revocation of probation or community control because there was insufficient evidence to support the reasons for departure.

Another line of cases holds that the state lacks authority to appeal modifications of probation or community control. See, e.g., State v. Heddon, 840 So.2d 439 (Fla. 5th DCA 2003); State v. Gray, 721 So.2d 370 (Fla. 4th DCA 1998); State v. Blackman, 488 So.2d 644 (Fla. 2d DCA 1986).

From these two lines of cases, a consistent general rule emerges: upon a violation of probation or community control, the court has authority to “revoke, modify or continue” the probation or community control. If the court chooses to revoke probation or community control, it must then impose a sentence, which the state can appeal if the sentence falls below the sentencing guidelines. However, if the court chooses to modify or continue the original probation or community control, it may do so and the state cannot appeal such action.

Bell cites State v. Harrison, 589 So.2d 317 (Fla. 5th DCA 1991) for the proposition that the state lacks authority to appeal even when the lower court revokes probation. However, Harrison is distinguishable from the instant case. In Harrison, the lower court stated it was revoking probation but then elected to “continue” or “reinstate the probation on its original terms.” In the instant case, the lower court revoked community control and then imposed 120 days incarceration to be followed by new periods of one year community control and 3 years probation. Thus, under the reasoning of the majority in Harrison, the instant case would constitute a “final revocation” rather than a modification or continuation of the original sentence. In short, the court in the instant case imposed a new sentence. By downwardly departing from the sentencing guidelines, the state had authority to appeal under section 924.07(l)(i), Florida Statutes and Florida Rule of Appellate Procedure 9.140(c)(l)(K).

It is well established that downward departure sentences will be affirmed if the reasons given for the departure are permissible and are supported by substantial competent evidence. State v. Tyrrell, 807 So.2d 122, 125 (Fla. 5th DCA 2002). This standard also applies to downward departure sentences imposed after revocation of probation or community control. Hurley; Knopp; Woodson; Jordan; Krueger. The burden is on the defendant to prove a basis for departure by a preponderance of evidence. Tyrrell.

The lower court gave four reasons for downwardly departing. The state contends that none of these reasons was supported by substantial competent evidence. Each reason is discussed below.

Legitimate, Uncoerced Plea Bargain

The state correctly argues that a “plea bargain” contemplates an agreement between the state and the defendant. See State v. Sawyer, 753 So.2d 737, 738 (Fla. 2d DCA 2000); State v. McCarthy, 502 So.2d 955 (Fla. 2d DCA 1987). Because Bell pled guilty to the violation of community control without any agreement from the state, this reason is not supported by substantial competent evidence. Sawyer, McCarthy.

Capacity of Defendant to Appreciate Criminal Nature of Conduct or Conform Conduct to Requirements of Law was Substantially Impaired

The trial court found that Bell had “limited capacity to understand the seriousness of what she did, driving that automobile. I think maybe she might understand now. I hope so.” However, the state correctly argues that there was no evidence presented to support this conclusion. On the contrary, Bell’s criminal record included two prior convictions for driving on a suspended license. Her current offenses included driving without a valid driver’s license, reduced from driving on a suspended license. Additionally, her community control officer testified that two days before the violation, she discussed Bell’s driving restrictions with her, told Bell not to drive and Bell agreed not to drive. Just two days later, the community control officer saw Bell driving. In short, the evidence indicated that Bell was aware that driving without a valid license or in violation of license restrictions was a criminal offense and that such restrictions were a condition of her community control. The lower court erred in making this finding without substantial competent evidence to support it. See State v. Shorter, 814 So.2d 1117, 1118 (Fla. 4th DCA 2002).

Defendant Cooperated with State to Resolve Current Offense or Any Other Offense

The lower court stated, “She’s previously cooperated with the State, that fact can’t be changed, on the original charge.” The state conceded below and on appeal that Bell entered into a plea agreement on the original charges in which she agreed to testify against her co-defendant in exchange for the state reducing her charges from principal to robbery with a deadly weapon and driving on a suspended license to accessory after the fact and no valid driver’s license. As the prosecutor explained below, “the net result of that was Ms. Bell went from three or four or five years in prison on the score sheet down to a situation where she got the sentence that she got, which was community control followed by three years probation.... ”

However, this statement is insufficient to support a downward departure for two reasons. First, the state notes there was no evidence adduced to support a finding that any crime had been resolved as a result of Bell’s cooperation. See State v. Quintanal, 791 So.2d 23, 24 (Fla. 3d DCA 2001). It is not known whether Bell actually testified against the co-defendant or whether the co-defendant was convicted. The burden was on Bell to prove this and she failed to meet that burden.

Second, the state argues persuasively that Bell already received a benefit from her prior cooperation. Her charges were reduced and she was saved from going to prison. Thus, her prior cooperation should not serve to mitigate a new offense.

Offense Committed in Unsophisticated Manner and was an Isolated Incident for which Defendant has shown Remorse

The lower court found that “... the act that she was violated for was unsophisticated .... And I hope it was an isolated series of events or event.” In order to be sufficient to support a downward departure, the defendant must prove three elements: (1) the offense was committed in an unsophisticated manner; (2) it was an isolated incident; and (3) the defendant has shown remorse. Tyrrell, 807 So.2d at 126. The state correctly argues that there was no evidence presented to support any of these elements. There was no evidence that Bell was remorseful and the lower court made no oral finding of remorse. It did check off a box on the score sheet but that finding was not supported by any evidence. Also, the evidence demonstrated that this violation was not an isolated incident. Bell had two prior convictions for driving on a suspended license. The offense for which she was on community control involved driving a getaway car with a suspended or no valid driver’s license. And Bell was caught driving just two days after being instructed not to drive and agreeing not to drive. B.ased on this history, the community control officer opined that “I don’t think if she was reinstated that she would make it, I think in a week we’d be back in the same situation again.”

The state also argues that Bell’s act of driving a car was not unsophisticated as that word was defined in State v. Fleming, 751 So.2d 620 (Fla. 4th DCA 1999). In that case, the court noted that “unsophisticated” is regarded as the opposite of sophisticated, which it defined as “having acquired worldly knowledge or refinement; lacking natural simplicity or naivete,” quoting from the American Heritage Dictionary of the English Language (1981). The state argues that Bell’s act of driving was not naive or without knowledge because she was instructed and agreed not to drive just two days prior to being caught driving. However, under this court’s standard of review, and keeping in mind the rule that criminal statutes are to be liberally construed in favor of defendants, we cannot say that the lower court’s finding that the act of driving was unsophisticated is not supported by sufficient competent evidence. Nevertheless, all three elements must be proven, not just one. State v. Falocco, 730 So.2d 765 (Fla. 5th DCA 1999). Bell failed to prove all three elements.

Because none of the reasons for downwardly departing were supported by substantial competent evidence, we reverse and remand for imposition of a guidelines sentence. See State v. Norris, 724 So.2d 630 (Fla. 5th DCA 1998) (remanding for imposition of guidelines sentence instead of allowing defendant to withdraw plea because defendant entered open plea to the court with no plea agreement from the state). Like the defendant in Norris, Bell entered an open plea to the court without a plea agreement and was fully informed by the court that she could face prison time under the guidelines.

REVERSED AND REMANDED.

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

      . That subsection allows the state to appeal "a sentence imposed below the lowest permissible sentence established by the Criminal Punishment Code under Chapter 921.”


author: ALTENBERND, Chief Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Richard DEL RIO, Appellee/Cross-Appellant.
    No. 2D02-3786.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    Randall 0. Reder of Randall 0. Reder, P.A., Tampa, for Appellee/Cross-Appel-lant.
   ALTENBERND, Chief Judge.

The State charged Richard Del Rio with vehicular homicide, and the jury returned a verdict of guilty as charged. Thereafter, the trial court granted a judgment of acquittal, concluding that the unfortunate accident from which this charge arose was the result of negligence and careless driving but that Mr. Del Rio’s actions did not meet the level of recklessness required to convict him of vehicular homicide. The State appeals this judgment. We affirm.

On November 28, 2000, at approximately 1 p.m., Richard Del Rio was driving home from high school on Whispering Hollow Drive. Whispering Hollow Drive ends with a stop sign at a T-intersection with Branch Mooring Drive. The evidence at trial was conflicting as to whether Mr. Del Rio stopped at this intersection. Nevertheless, Mr. Del Rio turned left onto Branch Mooring Drive and proceeded approximately 47 feet before the front of his car hit a woman who was pushing her baby in a stroller. The woman was in the street approximately six feet from the curb. Although the baby was unharmed, the woman died from head injuries she sustained when she hit her head first on Mr. Del Rio’s windshield and then again on , the pavement as she fell off the vehicle.

There were no witnesses to this accident. Mr. Del Rio called 911 and reported the accident. He told police that he stopped at the intersection prior to turning. He claimed that he struck the woman because his vision was obstructed by a white van and a large bush.

Accident reconstruction experts testified that Mr. Del Rio was driving his car between 17 and 26 miles per hour. The posted speed limit in this residential neighborhood was 25 miles per hour. The State’s expert opined that Mr. Del Rio had not stopped at the intersection prior to turning onto Branch Mooring Drive but instead had cut through the intersection.

Based upon this evidence, the jury convicted Mr. Del Rio of vehicular homicide. Mr. Del Rio then moved for a judgment of acquittal, arguing that the State had not proven a prima facie case because his actions were not reckless as required to support such a conviction. The trial judge agreed and granted the motion.

The vehicular homicide statute states: “Vehicular homicide” is the killing of a human being, or the killing of a viable fetus by any injury to the mother, caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.

§ 782.071, Fla. Stat. (2000); see also W.E.B. v. State, 553 So.2d 323 (Fla. 1st DCA 1989); Rushton v. State, 395 So.2d 610, 612 (Fla. 5th DCA 1981). Section 782.071 has remained substantially unchanged since it first entered Florida law in 1975. See ch. 74-383, § 16, Laws of Fla.

Vehicular homicide cannot be proven without also proving the elements of reckless driving. Chikitus v. Shands, 373 So.2d 904, 905 (Fla.1979). Thus, the State must necessarily adduce evidence showing conduct at least sufficient to constitute reckless driving which is defined as involving a “willful or wanton disregard for the safety of persons or property.” See § 316.192, Fla. Stat. (2000). Merely proving careless driving, see § 316.1925, Fla. Stat. (2000), is insufficient to sustain a conviction. In McCreary v. State, 371 So.2d 1024 (Fla.1979), the supreme court described the level of culpability required for vehicular homicide as one that falls short of culpable negligence but that is more than a mere failure to use ordinary care. Id. at 1026.

There are only a few reported cases interpreting the vehicular homicide statute. In most of the reported cases, the drivers engaged in conduct far more dangerous than that demonstrated by this case. See McCreary, 371 So.2d 1024 (affirming vehicular homicide conviction where defendant consumed several glasses of beer and drove through heavily congested intersection); Hamilton v. State, 439 So.2d 238 (Fla. 2d DCA 1983) (affirming vehicular homicide conviction where defendant was speeding at 50 to 60 mph in 30 mph residential area with “SLOW — ■ CHILDREN PLAYING” sign); Byrd v. State, 531 So.2d 1004 (Fla. 5th DCA 1988) (affirming vehicular homicide conviction where defendant was speeding at 81 mph through a construction zone after being warned by his passenger to slow down). If anything, the conduct here is not as dangerous as that found to be insufficient in other reported cases. See W.E.B., 553 So.2d 323 (reversing vehicular homicide conviction where teenage driver, who had been drinking, drove off pavement edge at night while speeding, overcorrected, and hit victim’s car).

It is undisputed that Mr. Del Rio failed to see the pedestrian who was walking in this residential street. However, he was not speeding or under the influence of any substance. At worst, he had cut through the T-intersection without stopping. Although it is not entirely clear from this record that his failure to stop at the intersection was causally connected to the victim’s death, we assume that it was for purposes of this opinion. In the absence of additional evidence, the trial court made the correct legal ruling. Mr. Del Rio was driving carelessly, but the evidence does not establish the type of recklessness required to establish a prima facie case of vehicular homicide.

Affirmed.

FULMER and WALLACE, JJ., concur.


author: KELLY, Judge.

text:
    Charles ESPOSITO, Appellant, v. Tony WILLIAMSON, Diana Grimmage, and City of Clearwater, a political subdivision, Appellees.
    No. 2D02-2977.
    District Court of Appeal of Florida, Second District.
    July 25, 2003.
    Rehearing Denied Sept. 8, 2003.

      Paul Richard Hall, Assistant City Attorney, Clearwater, for Appellant.
    W. Clay Mitchell, Jr., of Morgan, Colling & Gilbert, P.A., Orlando, for Appellees.
   KELLY, Judge.

The appellee, Tony Williamson, filed a complaint under 42 U.S.C. § 1983 against the City of Clearwater, City of Clearwater police officer Charles Esposito, and Diana Grimmage. Count I of the complaint alleges that Detective Esposito arrested Williamson without “arguable probable cause” in violation of his Fourth Amendment rights. In this appeal, Detective Esposito challenges the nonfinal order that denies his motion for summary judgment as to count I, arguing that he is entitled to qualified immunity from suit. We reverse.

Ordinarily, police officers are entitled to qualified immunity, which shields them from personal liability under § 1983. Moody v. City of Key West, 805 So.2d 1018 (Fla. 3d DCA 2002). To overcome a claim of qualified immunity, a plaintiff must show that the defendant engaged in conduct that violated clearly established law. Id. at 1021. Here, Williamson alleges that Detective Esposito violated his Fourth Amendment right to be free from an unlawful arrest without probable cause.

“An arrest without probable cause violates the Fourth Amendment and establishes a cause of action under § 1983. On the other hand, the existence of probable cause is an absolute bar to a § 1983 claim.” Vermette v. Ludwig, 707 So.2d 742, 746 (Fla. 2d DCA 1997) (citations omitted). Probable cause to arrest is to be determined upon objective facts available to police officers at the time of arrest. Brodnicki v. City of Omaha, 75 F.3d 1261 (8th Cir.1996). If a reasonable officer could have believed that there was probable cause for the arrest, the officer is entitled to qualified immunity. Brescher v. Pirez, 696 So.2d 370 (Fla. 4th DCA 1997).

In this case, it is undisputed that an eyewitness reported a crime to Detective Esposito and positively identified Wil-Iiamson as the perpetrator. Based on this eyewitness account, a reasonable officer in the same circumstances as Detective Espo-sito could have believed that probable cause existed. See Vermette, 707 So.2d at 746. The level of certainty necessary for a finding of probable cause is much lower than that needed for a conviction on the underlying crime. Mills v. Town of Davie, 48 F.Supp.2d 1378, 1380 (S.D.Fla.1999).

In support of his argument that the officer lacked probable cause, Williamson argues that the detective wrote the wrong time of the offense in his arrest affidavit and therefore failed to investigate his alibi for the relevant time before making the arrest. However, police officers are not required to investigate a defendant’s alibi before making their probable cause determination. Brodnicki, 75 F.3d at 1264. As Detective Esposito argues, an officer is not required to conduct a mini-trial before making an arrest. See id.

“[I]f there are undisputed facts which require the application of the qualified immunity defense, the fact that there are other disputed issues is of no moment and the court should grant summary judgment....” Brescher, 696 So.2d at 373. Here, the undisputed facts require the application of the qualified immunity defense. Accordingly, we reverse and remand for the entry of summary judgment as to count I.

Reversed and remanded.

FULMER and CASANUEVA, JJ., Concur.


author: PER CURIAM.

text:
    STATE of Florida, Appellant, v. Ivory HOWARD, Appellee.
    No. 2D02-4154.
    District Court of Appeal of Florida, Second District.
    July 30, 2003.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

After violating the terms of his probation, Ivory Howard appeared before the trial court for sentencing for eight separate offenses. The 1994 guidelines were applicable to the offenses committed before May 24,1997, identified as counts one, three, seven, and eight of the information. See Trapp v. State, 760 So.2d 924, 928 (Fla.2000) (determining that window period for challenging sentences imposed under 1995 guidelines held unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000), closed on May 24, 1997). The balance of the offenses, counts two, four, five, and six, were committed in July 1997, and the 1995 guidelines were applicable to them. See Trapp, 760 So.2d at 928 (explaining that defendants do not have standing to challenge the 1995 guidelines as unconstitutional after the close of the Heggs window period).

Over the State’s objection, the trial court used a single 1994 scoresheet to calculate Howard’s guidelines sentence for all eight offenses. The trial court was required to use a separate 1995 scoresheet for the four offenses committed in July 1997. Accordingly, we affirm the order revoking probation but reverse the sentences and remand for resentencing on all offenses using separate scoresheets. See § 921.0014(3), Fla. Stat. (1997); Fla. R.Crim. P. 3.703(d)(3).

Affirmed in part, reversed in part, and remanded for resentencing.

ALTENBERND, C.J., and FULMER and WALLACE, JJ., Concur.


author: ORFINGER, J. THOMPSON,

text:
    Anthony K. HARMON, Appellant, v. STATE of Florida, Appellee.
    No. 5D01-3236.
    District Court of Appeal of Florida, Fifth District.
    Aug. 8, 2003.
    Rehearing Denied Sept. 24, 2003.

      James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION FOR REHEARING

ORFINGER, J.

We deny Appellant’s motion for rehearing, but withdraw our previous opinion and substitute the following therefor.

Anthony K. Harmon appeals his judgment and sentence for burglary with an assault or battery. He contends the trial court improperly excluded certain testimony that supported his defense. We disagree and affirm.

Harmon was convicted of burglarizing Blane Morse’s motel room. Morse, who worked for a Minnesota tree trimming company, was staying in a motel while working on a project in Florida. Morse testified that he had left the motel room door ajar to accommodate his roommate who did not have a key. He awoke to find Harmon, whom he did not know, hitting and choking him while screaming about money. Morse said that he struggled with Harmon until two co-workers pushed the door to his room open. Morse told the coworkers to grab Harmon because Harmon had taken his wallet, but Harmon eluded them. Morse also noticed that his green duffel bag and address book were missing. Morse denied giving Ms address book to Harmon as collateral for drugs, and was unsure how four empty beer bottles came to be in his room.

One of Morse’s co-workers testified that he heard a commotion and went to Morse’s room. Harmon, whose shirt was ripped, was walking out of Morse’s room as the coworker approached. Morse was sitting on the edge of the bed, saying that Harmon had taken his wallet. A short time later, the police found Harmon nearby hiding in a large pipe. The police found Morse’s address book and a motel room key among Harmon’s possessions. The key opened another room at the same motel in which the police found Morse’s duffle bag. Despite a search, Morse’s wallet was not recovered.

During a proffer conducted outside the jury’s presence, the co-worker testified that Harmon, who was angry as he left the room, said “he’s [Morse] got my money.” The court excluded the statement, concluding that it was irrelevant, inadmissible hearsay.

Harmon testified that he had been selling crack cocaine to Morse on credit. According to Harmon, Morse did not have any money so he “fronted” the crack to him, and took the duffle bag as collateral. On the evening of the incident, Harmon went to Morse’s room to get paid. According to Harmon, while at the motel room, Morse offered Harmon more of his possessions as additional collateral in lieu of payment. Harmon declined at first, but after he and Morse had a couple of beers, Harmon agreed to take Morse’s address book as additional collateral. When Morse asked for more crack, Harmon refused, and Morse then hit him over the eye with an object, drawing blood. After the fight, Harmon walked out the door, passing the two co-workers.

Harmon contends that his statement, “he’s got my money” was admissible as an exception to the hearsay rule. Section 90.803(2), Florida Statutes (2001), allows the admission of “[a] statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.” To be admissible under this hearsay exception:

1) The declarant must have experienced or witnessed an event startling enough to cause nervous excitement;
2) The statement must have been made while under the stress of the excitement caused by the startling event; and
3) The statement must have been made before there was time to contrive or misrepresent.

See State v. Jano, 524 So.2d 660, 661 (Fla.1988).

We conclude that Harmon’s statement meets the requirements of section 90.803(2). First, he made the statement as he emerged from a bloody fight, an event startling enough to cause nervous excitement. See Pope v. State, 679 So.2d 710, 713 (Fla.1996); Pedrosa v. State, 781 So.2d 470 (Fla. 3d DCA 2001). Second, Harmon was still under the stress of the excitement caused by the fight. The fight had ended only moments earlier, and the co-worker testified that Harmon was angry or excited when he made the statement. See Alexander v. State, 627 So.2d 35 (Fla. 1st DCA 1993). Finally, the statement was made as Harmon retreated from the fight, a period of time too short to find that there was time to contrive the story. See id. Simply because the statement may be self-serving is not a sufficient basis to exclude it. Stiles v. State, 672 So.2d 850 (Fla. 4th DCA 1996); Alexander. But our conclusion that Harmon’s statement was an excited utterance, standing alone, does not render the statement admissible, unless the statement is otherwise relevant. In determining whether the decision not to admit the proffered statement was an abuse of discretion, we must look at what evidence the judge had available to him at the time the ruling was made.

Harmon’s counsel had reserved his right to make an opening statement. As a result, at the time the judge made his ruling, he had before him only the testimony of Morse, the alleged victim, and Morse’s co-worker to whom the statement was allegedly made. The testimony of those two witnesses tended to show that Harmon had robbed Morse and did not support the defense Harmon would offer later. The judge had no way of knowing that Harmon’s defense would be that he had been invited into Morse’s hotel room and was defending himself against Morse’s unprovoked attack.

Had the statement been offered during the defendant’s case, after he had set forth his version of the incident, we would agree that the statement would have been admissible because it might support his contention that Morse owed him money for drugs and became enraged when he would not extend him further credit. But when we carefully examine the evidence the trial judge had before him when he made the ruling, we fail to see how the proffered statement could be viewed as relevant. The judge had no way of knowing what defense, if any, would be asserted later in the trial. Harmon should have sought to admit the statement during the presentation of his case.

AFFIRMED.

SAWAYA, C.J., concurs.

THOMPSON, J., dissents with opinion.

THOMPSON,

dissenting.

I respectfully dissent. Because the majority opinion clearly states the applicable law regarding the admissibility of the hearsay as an excited utterance, I agree with that analysis. However, I disagree with my brethren when they write that the hearsay was irrelevant during the state’s case in chief. Further, the majority states that the hearsay would have been admissible in the defense case, but that Harmon waived the issue or failed to preserve it. I disagree with that conclusion as well, because Harmon tried and failed to have it admitted at that point, too, finding no way around the court’s earlier ruling that the statement was inadmissible hearsay and irrelevant.

During the state’s case, Morse’s coworker testified that he arrived at the motel room to find Harmon leaving, and Morse sitting on the bed stating that Harmon had taken his wallet. The witness was not allowed to testify about Harmon’s reaction. On a proffer by the defense, the witness testified that as Harmon left the room, he angrily stated, “he’s got my money.” In ruling the hearsay inadmissible, the trial court ruled that even if the statement explained Harmon’s actions, it did not establish a defense to a charge of battery:

Well, if what had just happened, as has been testified to happened, then there certainly wasn’t any question but that something of a violent act occurred, and if all this was an explanation as to why the violent act occurred, I don’t think that’s — In the first place, it doesn’t establish any kind of defense.

The state alleged that Harmon committed not only a battery, but a burglary. The fact that Morse may have had Harmon’s money is not a defense to the allegations, but it could be inferred from Harmon’s statement that the parties had a prior, drug-related business relationship and that Harmon was in the room for business purposes with Morse’s consent. If Harmon had Morse’s consent, he could not be guilty of burglary. Relevant evidence is evidence tending to prove or disprove a material act, section 90.401, Florida Statutes (2001), and the question of consent to enter is certainly material to a burglary charge. The statement is relevant because it tends to prove Harmon’s theory: (1) it gives rise to the inference that the victim left his motel room door open not for his roommate, but for Harmon and an anxiously awaited special room service; (2) it contradicts the victim’s testimony that he never laid eyes on Harmon before the incident; and (3) it impeaches the victim’s credibility in general.

The majority concludes that the hearsay was not relevant during the state’s case because the defense theory had not been established by that time, but the cross examination of the witnesses during the state’s case made it clear that the defense’s position was that Harmon was in Morse’s motel room with Morse’s permission and in connection with drug dealings between the two. The defense asked Morse about whether he had received drugs from Harmon or had given Harmon collateral for drugs, and whether he had left the door ajar for Harmon. The defense also asked Morse, since he had testified that no co-workers had been in his room drinking, about empty beer bottles police found in his room. Even if it were true, as the majority states in support of its affirmance, that “The judge had no way of knowing that Harmon’s defense would be that he was defending himself from Morse’s unprovoked attack,” it was obvious that the defense was attempting to show that Harmon had been invited to Morse’s room for drug-related business.

Further, this statement should have been admitted during the state’s case under the “rule of completeness.” Where the state has elicited testimony about part of a conversation, a defendant is entitled to cross examine the witness about other relevant statements made during the conversation. Johnson v. State, 653 So.2d 1074 (Fla. 3d DCA 1995). The defense has the right to present the whole of the conversation, Steinhorst v. State, 412 So.2d 332, 338 (Fla.1982), as a matter of fairness, Larzelere v. State, 676 So.2d 394, 402 (Fla.1996). See also Sweet v. State, 693 So.2d 644, 645 (Fla. 4th DCA 1997) (holding that the defense may present the entire conversation where “it goes to the heart of the ... defense”); Eberhardt v. State, 550 So.2d 102 (Fla. 1st DCA 1989) (holding that the rule of completeness generally allows admission of the balance of the conversation as well as other related conversations that in fairness are necessary for the jury to accurately perceive the whole context of what has transpired).

Alexander v. State, 627 So.2d 35 (Fla. 1st DCA 1993) is instructive:

[W]e conclude that the trial court erred in ruling that this testimony was insufficiently related to the state’s direct testimony from the witnesses to be admitted on their cross-examination by the defendant during the state’s case. These statements by Appellant were part of his conduct at the time of the commission of the alleged offense and thus are not merely hearsay statements but amount to conduct in the nature of a verbal act. The state’s interrogation of these witnesses called for a description of what happened when the shooting occurred and what Appellant had said immediately prior to the shooting. Consequently, the court’s ruling to exclude further cross-examination as to Appellant’s statements at and immediately after the shooting prevented defense counsel from presenting the complete picture of the circumstances of the shooting from the perspective of these witnesses. We do not read the supreme court’s opinion in Penn v. State, 574 So.2d 1079 (Fla.1991), to require, indeed, even to permit the exclusion of this evidence under the circumstances shown.

Id. at 44 (emphasis added). The instant case is similar to Alexander in that the state elicited from Morse’s co-worker a description of what occurred in Morse’s room. The co-worker testified that he saw Harmon leave as Morse sat on the bed stating that Harmon took his wallet. The exclusion of cross examination about what else the state’s witness heard prevented Harmon’s counsel from presenting a complete picture of the circumstances from the perspective of the witness. As Alexander explains, this exclusion is not required or even permitted.

The trial court also excluded the statement when Harmon testified during the defense’s case. The defense did not call the co-worker to testify, but the court had already ruled his testimony irrelevant. Instead, the defense unsuccessfully tried to introduce the hearsay through Harmon himself. Just before Harmon was scheduled to testify, the state submitted a hastily drafted motion in limine to exclude testimony about any potential penalties and any “self-serving” hearsay. During the proffer, Harmon testified that he had sold drugs to the victim before and had been in the victim’s room at least three times before the altercation. He testified that there was no burglary and that Morse struck him in the head after he refused to provide Morse any more drugs without being paid. Thus, even if the court had been previously unaware of Harmon’s defense — that this was a drug deal gone awry — the court was surely aware of it by the time Harmon testified.

I do not agree with the statement in footnote one of the majority opinion that Harmon’s counsel “either waived or failed to preserve any alleged error for review” during the defense case. The trial court sustained the state’s objection to defense counsel’s attempt to introduce the statement through Harmon. During the bench conference, the trial court indicated that Harmon’s attorney would not be able to lay a proper foundation for admission of the statement through Harmon. When the court said Harmon could “testify as to why he did something,” the court was also saying that Harmon could not repeat the statement to the jury, and hence defense counsel’s response, “No. I know. I know he doesn’t need to say it. All right.” Since the court had already ruled the statement inadmissible hearsay and irrelevant, it would have been futile, and even discourteous, for counsel to belabor the issue at that point. See Tucker v. Allstate Ins. Co., 842 So.2d 1029 (Fla. 2d DCA 2003) (holding that under the circumstances of the court’s former rulings, the issue for review was adequately preserved); Layman v. State, 728 So.2d 814, 817 (Fla. 5th DCA 1999) (“The contemporaneous objections rule is satisfied under the facts of this case because the trial court clearly understood the defendant’s position and further debate would have been futile”). Thus, I would hold that the issue was adequately preserved. The trial court erred in excluding the hearsay during Harmon’s case because it was as relevant during Harmon’s case as it was during the state’s case, although it clearly would have been better for Harmon if the hearsay had been introduced through the co-worker, an apparently neutral observer.

It is true that the statement cuts both ways for Harmon in that Morse’s owing him money could be viewed to provide Harmon a motive to enter uninvited. But, if the statement had been allowed, the jury may have believed that Morse and Harmon had a relationship prior to the incident at issue, and if the jury doubted the veracity of Morse, it might also believe that the state failed to prove beyond a reasonable doubt that Harmon committed the crime of burglary (i.e., a non-consensual entry), a felony. For these reasons, I cannot say the exclusion of Harmon’s statement was harmless, and thus, I must dissent.

      . Harmon contends that he attempted to present the excited utterance during the presentation of the defense case. The trial transcript reveals that when Harmon tried to present the statement, the State made a hearsay objection. Outside the presence of the jury, the trial judge invited defense counsel to lay the predicate for the admission of the statement. Defense counsel responded to the court's offer by saying "[N]o.... I know he (Harmon) doesn't need to say it.” Defense counsel then proceeded to question Harmon on other matters. We conclude that by withdrawing the question without obtaining a definitive ruling from the court, defense counsel either waived or failed to preserve any alleged error for review. “The shifting sands of the trial in progress may cause a judge to rethink an earlier evidentiary ruling based on a maturing understanding of the case.” Donley v. State, 694 So.2d 149, 150 (Fla. 4th DCA 1997). The trial judge should have an opportunity to consider the evidence in light of the evidence previously admitted at trial and while a witness is present in court to testify "as to any factual inquiry made necessary by the circumstances.” Gilliam v. State, 602 So.2d 986, 986 (Fla. 4th DCA 1992) (Farmer, J., concurring).

      . The record indicates that other evidence tended to support the assertion of a prior relationship: Harmon testified that he was invited to Morse’s room that evening to drink beer. Empty beer bottles were found in Morse's motel room by police, and Morse could not explain at trial whose bottles they were or how they got in his room. Harmon testified that Morse previously gave him a green duffle bag as collateral for drugs, and Morse's green duffle bag subsequently was located in Harmon's motel room.

        . Evidently, the motion was from another case and adapted for Harmon's trial. The motion sought the exclusion of hearsay testimony about a firearm by a Mr. Mollison. Neither a firearm nor a Mr. Mollison was involved in this case.

      . As a Prison Releasee Reoffender, Harmon was facing life in prison.

      . MS. MERCADO: Well, can I try to lay the foundation for an excited utterance?
      THE COURT: I don’t think you’re gonna be able to, but he’s the Defendant and he can testify as to why he did something.
      MS. MERCADO: Sure. I understand.
      THE COURT: But I don’t think — If you want to try to do it.
      MS. MERCADO: No. I know. I know he doesn't need to say it. All right.

      . If the jury believed that much, it might also believe that Morse attacked Harmon, as the latter testified.


author: COPE, J.

text:
    Kelvin D. HARRIS, a/k/a Michael Watts, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-338.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing Denied Sept. 24, 2003.

      Kelvin D. Harris, in proper person.
    Charles J. Crist, Jr., Attorney General, and Andrea D. England, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and RAMIREZ, JJ.
   COPE, J.

Kelvin D. Harris appeals an order denying his motion for postconviction relief. We affirm.

I.

By postconviction motion, defendant-appellant Harris argues that the revocation of his probation in Miami-Dade County Circuit Court case number 86-15006 should be set aside because the trial court had lost jurisdiction to adjudicate the affidavit of violation of probation. The defendant relies on State v. Boyd, 717 So.2d 524 (Fla.1998). The trial court denied the postconviction motion as time-barred, and alternatively, without merit. The defendant has appealed.

In the 1986 case, the defendant entered a nolo contendere plea in exchange for an adjudication of guilt and a term of probation.

On October 8, 1987, the State filed an affidavit of violation of probation. On October 14, 1987, the term of probation expired.

On October 22, an alias capias was issued for the defendant’s arrest. This was delivered to the Warrants Bureau of the Miami-Dade County Police Department on October 23,1987.

The defendant was eventually served in Louisville, Kentucky on September 28, 1989. His probation was revoked and the defendant was sentenced to three months in county jail. There was no appeal of this disposition. The defendant is presently serving two life sentences in an unrelated case, Miami-Dade County Circuit Court case number 90-9210.

The defendant’s postconviction motion seeks to set aside the revocation of probation in the 1986 case. The primary relief requested by the defendant is to set aside his adjudication of guilt of the offense of carrying a concealed weapon.

II.

Under the facts of this case, the affidavit of violation of probation was filed during the probationary period, but the warrant was not delivered for execution until after the probationary period expired. Under the law applicable to the defendant’s case, the warrant had to be delivered to the proper executive officer for execution prior to the expiration of the term of probation. State v. Boyd, 717 So.2d 524, 526 (Fla.1998); Paulk v. State, 733 So.2d 1096, 1097 (Fla. 3d DCA 1999). Thus, the defendant is correct in saying that the trial court lost jurisdiction to adjudicate the affidavit of violation of probation.

The State argues that the defendant’s postconviction motion is time-barred. While this argument finds support in the text of Florida Rule of Criminal Procedure 3.850(a)(2) and (3), case law establishes that the absence of jurisdiction may be raised at any time. See, e.g., Harrell v. State, 721 So.2d 1185, 1186-87 (Fla. 5th DCA 1998); Novatan v. State, 610 So.2d 726, 728 n. 3 (Fla. 3d DCA 1992), approved on other grounds, 634 So.2d 607 (Fla.1994); Wesley v. State, 375 So.2d 1093, 1094 (Fla. 3d DCA 1979).

For two reasons, however, we affirm the denial of postconviction relief. .

First, the defendant’s main objective is to set aside his adjudication of guilt on the charge of carrying a concealed weapon. The plea colloquy makes clear that the plea bargain was for an adjudication of guilt at the time the nolo contendere plea was entered in 1986. The defendant has the mistaken impression that adjudication of guilt was withheld in 1986, and that adjudication was imposed in 1989 at the time of the revocation of probation. In reality, the plea colloquy and the judgment both establish that there was an adjudication of guilt in 1986. The 1986 adjudication remains intact, and is not affected by any infirmity in the later probation revocation proceedings.

Second, as relates to the actual revocation of probation, the defendant has long since completed his sentence. He is now incarcerated on other charges on which he is serving a life sentence. As the defendant is not adversely affected at this time by the 1989 order revoking his probation, we decline to entertain any challenge to that order. See Zynda v. State, 847 So.2d 1140, 1140-41 (Fla. 3d DCA 2003); Saint-Fleur v. State, 840 So.2d 261, 262 (Fla. 3d DCA 2002).

Affirmed.

      . Effective July 1, 2001, the Legislature has changed the law. "Upon the filing of an affidavit alleging a violation of probation or community control and following issuance of a warrant under s. 901.02, the probationary period is tolled until the court enters a ruling on the violation.” § 948.06(1), Fla. Stat. (2001); ch.2001-109, § 1, Laws of Fla.

      . There is a scrivener’s error in the clerk's trial court minutes, which indicates a withhold of adjudication, but the transcript and judgment are clear that there was an adjudication.


text:
    Edith C. NAIDU, Appellant, v. Leslie H. NAIDU, Appellee.
    No. 3D02-2294.
    District Court of Appeal of Florida, Third District.
    Aug. 13, 2003.
    Rehearing/Reconsideration Denied Sept. 24, 2003.

      Peter S. Adrien, Opa Locka, for appellant.
    Peter H. Kircher, Miami, for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

Edith C. Naidu, the mother, appeals an order which extends the father Leslie H. Naidu’s temporary custody of the minor children pending resolution of the father’s petition for modification of child custody. We affirm the trial court’s order because it basically maintained the status quo of an arrangement made by the parties themselves.

The parties divorced on October 29, 1998. The mother received primary custody of their two children: Diane, born on November 18, 1985; and David, born on August 20, 1991. In early 2001, the mother approached the father about the children living with him. The parties subsequently agreed to the children living in Arizona with the father for one year, from July 2001 through July 2002.

On July 19, 2002, the father filed an emergency motion to extend temporary custody until his motion to modify permanent custody could be decided. The trial court conducted a hearing on the father’s emergency motion on July 28, 2002. The father testified as to the circumstances of the agreement. The trial court then directed that Family Court Services interview the parents and children that evening.

On July 24, 2002, the trial court interviewed Diane in chambers. Diane described her relationship with her mother as terrible; they fought all the time and the mother had slapped her on one occasion and screamed at her constantly. Diane stated that the mother had a better relationship with David, but she was worried about her brother living with the mother.

Ms. Milledge from Family Court Services testified that she had interviewed the parents and children for one hour each the previous evening. She felt it would be in David’s best interests to remain in Arizona. He was doing well in school and had a complete family life with his sister, father, the father’s girlfriend and her children. The children’s Miami psychologist did not feel the children should be separated because they are emotionally very close. There was no danger to David in returning to live with his mother, but he would not have the same quality of life because the mother’s counterproductive behavior which led to the temporary custody agreement would likely reoccur. The mother testified that she had agreed that Diane could stay in Arizona with the father.

In its order of July 26, 2002, the court determined that, because it was agreed that Diane would remain in Arizona, it was warranted to leave both children with the father so that they would not be separated. The court further ordered that the father’s petition for modification be set on an expedited basis. However, no hearing has been set to date and the mother has done nothing to expedite a permanent resolution.

We conclude that the trial court did not abuse its discretion by temporarily maintaining the status quo because courts generally try to cause the least amount of disruption in the child’s life. There was ample evidence that it was in David’s best interests to not be separated from his sister. See Manuel v. Manuel, 489 So.2d 183 (Fla. 1st DCA 1986) (order for temporary modification will be affirmed where the record shows the order is entered on the basis of the child’s best interests at the time of the hearing). See also Miller v. Miller, 371 So.2d 565, 566 (Fla. 4th DCA 1979) (the law does not favor separating siblings from each other); Griffith v. Griffith, 627 So.2d 527, 528 (Fla. 2d DCA 1993) (“In a temporary custody order, the trial court determines the best place for the children until the court makes the final decision regarding custody.”).

Affirmed.


author: SILBERMAN, Judge.

text:
    Jonathan Wayne LIPOVSKY, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-1718.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jenny Scavino Sieg, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Jonathan Wayne Lipovsky appeals his conviction and sentence for driving while license suspended and causing serious bodily injury pursuant to section 322.34(6)(b), Florida Statutes (2000). Lipovsky argues that his motion for judgment of acquittal should have been granted, therefore his conviction must be reversed because the State failed to prove the elements of the crime. We agree.

Section 322.34(6)(b) provides that:

Any person who operates a motor vehicle:
(b) While his or her driver’s license or driving privilege is canceled, suspended, or revoked pursuant to s. 316.655, s. 322.26(8), s. 322.27(2), or s. 322.28(2) or (4),
and who by careless or negligent operation of the motor vehicle causes the death of or serious bodily injury to another human being is guilty of a felony of the third degree, punishable as provided in s. 775.082 or s. 775.083.

In order for Lipovsky to be convicted under section 322.34(6)(b), his license must have been suspended for one of the reasons enumerated in the statute. Brown v. State, 760 So.2d 1113, 1114-15 (Fla. 4th DCA 2000).

It was undisputed that at the time of the events giving rise to the charges, Lipov-sky’s license had been suspended. However, the State did not establish that the suspension was for one of the reasons enumerated under section 322.34(6)(b). Instead, it appears that Lipovsky’s license was automatically suspended pursuant to Section 318.15, Florida Statutes (2000), because he failed to pay traffic fines and to appear in response to traffic summonses. Because the suspension of a license under section 318.15 is not one of the qualifying suspensions under section 322.34(6)(b), and because the State did not otherwise establish that Lipovsky’s license was suspended for one of the reasons identified in section 322.34(6)(b), his conviction and sentence must be reversed.

The State argues that Lipovsky did not adequately preserve this issue. We disagree and conclude that counsel’s argument to the trial court was sufficient to cover the argument raised on appeal. See K.A.N. v. State, 582 So.2d 57, 58-59 (Fla. 1st DCA 1991). We also observe that even if Lipovsky had not preserved the issue, he would be entitled to a reversal due to fundamental error because the State failed to make a prima facie showing of an essential element of the crime. Dydek v. State, 400 So.2d 1255, 1258 (Fla. 2d DCA 1981); see also J.B. v. State, 705 So2d 1376, 1379 (Fla.1998).

Accordingly, we reverse Lipovsky’s conviction and sentence for driving while license suspended and causing serious bodily injury. Lipovsky does not challenge, and therefore we affirm, his conviction and sentence for leaving the scene of an accident with personal injury. We remand for entry of a corrected judgment and sentence consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and DAVIS, JJ., concur.


author: SILBERMAN, Judge. CASANUEVA, Judge,

text:
    Roderick D. LEE, Appellant, v. STATE of Florida, Appellee.
    No. 2D00-1430.
    District Court of Appeal of Florida, Second District.
    Aug. 15, 2003.

      Elliott C. Metcalfe, Jr., Public Defender, and Christopher E. Cosden, Assistant Public Defender, Sarasota, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jennifer R. Haymes, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Roderick Lee appeals from a commitment order placing him in the custody of the Department of Children and Family Services pursuant to section 394.917(2), Florida Statutes (1999). That statute is contained in part V of chapter 394, which is commonly referred to as the “Jimmy Ryce Act” (the Act). Although Lee raises numerous substantive and procedural issues, none require reversal. As a result, we affirm the commitment order.

On March 30, 1999, the State commenced involuntary civil commitment proceedings against Lee pursuant to the Act. The petition for a probable cause determination alleged that Lee had been convicted of three counts of lewd, lascivious, or indecent act or assault upon a child under sixteen years of age and that he suffers from a mental abnormality or personality disorder that makes him likely to engage in acts of sexual violence if not confined to a secure facility for long-term control, care, and treatment.

Prior to trial, Lee filed a motion requesting that “certain novel and allegedly scientific evidence” derived from tests or measuring devices that had been administered to him be excluded .from evidence. These tests included several instruments: the Rapid Risk Assessment for Sex Offense Recidivism (RRÁSOR), the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R), the Violence Risk Appraisal Guide (VRAG), and the Sex Offense Risk Appraisal Guide (SORAG). Lee also challenged the admissibility of the Hare Psychopathy ChecklisNRevised (PCL-R). Lee asserted that these instruments had not gained acceptance in the relevant scientific community and that the State could not properly use them to establish his future sexual dangerousness or his classification as a sexually violent predator.

After conducting a Frye hearing, the trial court denied Lee’s motion. The trial court concluded that the use of the instruments was not based on a new or novel scientific principle within the purview of Ramirez v. State, 651 So.2d 1164 (Fla.1995), and that the instruments had sufficient general scientific acceptance among experts who deal with sexually violent or dangerous individuals to satisfy the State’s burden of proof. The trial court denied Lee’s other objections, finding that they went to the weight of the evidence and not to its admissibility.

Lee also filed numerous motions attacking the constitutionality of the Act and seeking to exclude or limit the admission of certain evidence at the commitment trial. These motions were denied.

During the trial, the State presented evidence that Lee was at a very high risk of reoffending without secure residential treatment, that residential treatment was required, and that Lee suffered from a mental abnormality. In formulating their opinions, the State’s experts reviewed records relating to Lee’s prior offenses and interviewed Lee. The experts testified that Lee had repeatedly approached young boys and fondled their genitals, masturbating some of the victims. They described Lee’s attraction to and molestation of boys and the significance of his prior offenses in predicting sexual reoffense. They stated that Lee’s history was indicative of a very powerful urge to engage in the described behavior, and Lee was a high risk to repeat the behavior in the future. The State’s and Lee’s experts agreed that a person’s prior sexual offenses and history are the single biggest or the best predictor of the person’s future behavior, although one of Lee’s experts stated that there are no highly accurate predictors.

While Lee denied any attraction to children, there was evidence that he harbored cognitive distortions about his conduct and characterized himself as a protector of children. The evidence also showed that he derived pleasure or satisfaction from committing sexual acts on children, and according to expert testimony, his distorted beliefs allowed him to engage in deviant behavior.

One expert diagnosed Lee as suffering from pedophilia and a personality disorder with antisocial and possibly paranoid features that placed him at a very high risk to commit future acts of sexual violence without secure residential treatment. The expert opined that Lee’s severe cognitive distortions were a serious risk factor but that Lee was treatable and residential treatment was necessary.

Another expert diagnosed a sexual disorder and pedophilic tendencies, although the expert stated that he could not definitively diagnose Lee with pedophilia. The expert concluded that Lee had very poor impulse control, poor judgment, and strong deviant characteristics. He reiterated that Lee had difficulty controlling his inappropriate behavior and was a high probability risk for sexual recidivism. The expert testified that Lee believed he did not need treatment, and even if it were offered on an outpatient basis, he would not participate because he did not see himself as having a sexual disorder. A defense expert acknowledged that Lee had a high likelihood for reoffending due to his multiple sex offenses, his denial of responsibility, and his refusal of treatment.

The jury unanimously found that Lee was a sexually violent predator in need of commitment. On that basis, the trial court entered the commitment order.

In this appeal, Lee first challenges the trial court’s admission of the State’s scientific evidence, arguing that the evidence was unreliable and untested. When expert opinion testimony involves new or novel scientific principles, the trial court must use a four-step process to determine whether the testimony is admissible. Ramirez, 651 So.2d at 1166. The trial court must determine the following: (1) whether the expert testimony will assist the jury in understanding the evidence or in determining a fact that is at issue; (2) whether the expert’s testimony is based on a scientific principle or discovery that has gained general acceptance in the particular field in which it belongs; and (3) whether the witness is qualified as an expert to present opinion testimony on the subject at issue. Id. at 1166-67. If the first three steps are satisfied, then as the fourth step the trial court may allow the expert to render an opinion on the subject of his or her expertise, and the jury is then able to determine the expert’s credibility and accept or reject the testimony. Id. at 1167.

As the proponent of the evidence, the State bears the burden of establishing the general acceptance of the underlying scientific principle and the testing procedures that were used to apply that principle to the facts of the case. Id. at 1168. The question of general acceptance must be established by a preponderance of the evidence. Id. Reliability of the evidence is fundamental to the issues involved in the question of admissibility. Hadden v. State, 690 So.2d 573, 578 (Fla.1997). Evidence that is “based on a novel scientific theory is inherently unreliable and inadmissible in a legal proceeding in Florida unless the theory has been adequately tested and accepted by the relevant scientific community.” Ramirez v. State, 810 So.2d 836, 843 (Fla.2001).

Although there were conflicts in the evidence as to the reliability of the tests and the conclusions drawn by the experts, we conclude that the trial court did not err by allowing the test results to be presented to the jury as part of the experts’ testimony. See Jackson v. State, 833 So.2d 243, 246 (Fla. 4th DCA 2002) (upholding the trial court’s determination that the actuarial instruments “are generally accepted in the relevant scientific community as part of the overall risk assessment for sexual predators”). However, even if there were any error regarding the Frye analysis and the admissibility of actuarial evidence, a harmless error analysis must be undertaken. See Green v. State, 826 So.2d 351, 353 (Fla. 2d DCA 2002).

The expert witnesses discussed their clinical evaluations of Lee, the results of tests that were administered to him, and the basis for their conclusions and recommendations. While they differed in their views of the value of the test results, they acknowledged that the results were useful as one part of the evaluation process and to verify the conclusions that were reached. The record contains substantial evidence, apart from the test results, supporting the State’s claim that Lee met the requirements for commitment under the Act. We are satisfied that even if there were any error in the admission of the test results, the error would be harmless. See In re Commitment of Williams, 841 So.2d ,531 (Fla. 2d DCA 2003) (determining that any error in the admission of the results of risk assessment instruments was harmless).

Lee next argues that the trial court erred in admitting unreliable hearsay evidence pursuant to section 394.9155(5), Florida Statutes (1999). That statute allows the admission of hearsay in civil commitment proceedings unless the trial court finds that the evidence is not reliable, and it prohibits the use of hearsay as the sole basis for commitment. Lee also challenges the constitutionality of section 394.9155(5) on due process, equal protection, and separation of powers grounds.

The State responds that the hearsay evidence discussed by the experts was admissible pursuant to the statute; the expert’s opinions were not being used as conduits for otherwise inadmissible evidence; and in accordance with the requirement of section 394.9155(5), hearsay evidence was not the sole basis for Lee’s commitment. The State also notes that experts are permitted to base their opinions or inferences on facts or data that may not be admissible into evidence, if the facts or data are of a type reasonably relied upon by experts in the subject to support their opinions. See § 90.704, Fla. Stat. (1999); Riggins v. Mariner Boat Works, Inc., 545 So.2d 430, 431-32 (Fla. 2d DCA 1989); Bender v. State, 472 So.2d 1370, 1371 (Fla. 3d DCA 1985).

The record reflects that the trial court carefully analyzed the hearsay evidence that the State offered pursuant to section 394.9155(5). The court considered Lee’s objections and challenges, and it excluded unreliable hearsay and hearsay that was irrelevant to the proceeding. The record also reflects that Lee did not dispute the accuracy or reliability of much of the hearsay evidence that was presented and that hearsay was not the sole basis of the commitment.

Although no Florida case directly addresses the constitutionality of section 394.9155(5), in People v. Otto, 26 Cal.4th 200, 109 Cal.Rptr.2d 327, 26 P.3d 1061 (2001), the California Supreme Court considered arguments against a similar statute that permitted the use of hearsay in sexually violent predator commitment proceedings in California. The court noted that a defendant in a civil commitment proceeding is entitled to due process protections because the proceeding involves a significant deprivation of liberty. Id., 109 Cal.Rptr.2d 327, 26 P.3d at 1067. However, after analyzing the constitutional issues that were implicated by the California statute, the court concluded that the statute met constitutional requirements.

While Lee argues generally against the constitutionality of section 394.9155(5), he points to no authority that applies in the context of a civil commitment proceeding to support his conclusion. For the same reasons expressed in Otto, we conclude that Lee has not demonstrated the existence of any constitutional infirmity arising from section 394.9155(5); the protections afforded by the statute and the role of the trial court to exclude unreliable hearsay evidence suffice to meet constitutional requirements.

Apart from the constitutional issues, Lee argues that the experts should not have been allowed to testify regarding factual details relating to his prior offenses that were contained in documents that the experts had reviewed. He also argues that the trial court erred in allowing the State to refer to his prior offenses during its opening statement and closing argument. Relying on Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), and Brown v. State, 719 So.2d 882 (Fla.1998), Lee asserts that the trial court should have excluded evidence of his prior sexual offenses in exchange for his offer to stipulate to those convictions as establishing one of the elements required for commitment under the Act. The State counters that the experts necessarily had to consider certain details of Lee’s prior offenses in formulating their opinions and that the evidence was specifically relevant to and probative of the issues involved in the commitment proceeding. The experts confirmed that the information was relevant and necessary in order to formulate their opinions and that Lee’s past history was the best predictor of his future conduct.

There was no finding by the trial court, and there is little in the record to support Lee’s argument, that the information utilized by the experts was unreliable. The evidence was admissible under section 394.9155(5), and it was of the type appropriately used by experts in formulating their opinions in commitment cases. Also, there was ample nonhearsay evidence presented to support the commitment. See Williams, 841 So.2d at 532; People v. Otto, 26 Cal.4th 200, 109 Cal.Rptr.2d 327, 26 P.3d 1061.

Courts in other states have held that evidence as to prior offenses is properly presented at a commitment proceeding because the evidence is directly relevant to and highly probative of the issues that are involved, and any prejudice does not outweigh the probative value of the evidence. See In re Detention of Turay, 139 Wash.2d 379, 986 P.2d 790, 801-02 (1999); see also In re Detention of Williams, 628 N.W.2d 447, 457 (Iowa 2001); In re Hay, 263 Kan. 822, 953 P.2d 666, 677-78 (1998). Additionally, the cases cited by Lee, Old Chief and Brown, involved criminal prosecutions rather than civil commitment proceedings and are not controlling here. Indeed, in Westerheide v. State, 831 So.2d 93, 100 (Fla.2002), the Florida Supreme Court reiterated that proceedings under the Act are civil in nature. The proceedings are designed to address the risk that sexually violent predators pose to society and to provide for the long-term care and treatment for such individuals. Id. We conclude, based on the nature of commitment proceedings and the manner in which the evidence was addressed at trial, that Lee has not shown any reversible error.

Lee next argues that the Act is unconstitutional on multiple substantive due process, ex post facto, double jeopardy, and equal protection grounds. The Florida Supreme Court considered and rejected these arguments in Westerheide.

Lee’s final argument is that the trial court erred because its instructions to the jury did not require a finding that Lee had a serious difficulty in controlling his behavior. The trial court instructed the jury, in pertinent part, as follows:

To prove that [Lee] should be confined in a secure facility for long-term control, care, and treatment, the State must prove each of the following three elements by clear and convincing evidence:
a. Roderick D. Lee has been convicted of a sexually violent offense. [Lee] has offered to stipulate that he has been convicted of a qualifying prior offense; the Court now instructs you that he has committed such an offense; and
b. Roderick D. Lee suffers from a mental abnormality or personality disorder; and
c. The mental abnormality or personality disorder makes Roderick D. Lee likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.
“Mental abnormality” means a mental condition affecting a person’s emotional or volitional capacity which pre-disposes the person to commit sexually violent offenses.
“Likely to engage in acts of sexual violence” means a person’s propensity to commit acts of sexual violence is of such a degree as to pose a menace to the health and safety of others.

Lee did not object to these instructions, and they were similar to the instructions that were given and approved in Westerheide. See 831 So.2d at 107-09; see also Hale v. State, 834 So.2d 254, 255 (Fla. 2d DCA 2002) (relying on Wester-heide to conclude that a nearly identical instruction was sufficient).

In Westerheide, the Florida Supreme Court upheld a decision of the Fifth District Court of Appeal and rejected various constitutional challenges to the Act. While four justices joined in the result, only three joined in the opinion. Regarding the adequacy of the jury instructions that were given, Senior Justice Harding, joined by Justices Wells and Lewis, concluded that the instructions were sufficient. 831 So.2d at 107-09. Justice Quince concurred in result only and expressed concerns as to the constitutionality of the Act. Id. at 113. She stated that she agreed with much of Justice Pariente’s dissent, but she did not specifically discuss the jury instruction issue. Id.

Justice Pariente, joined by Justices An-stead and Shaw, concurred in part and dissented in part with the court’s decision. Justice Pariente wrote, “My disagreement with the majority and my specific concerns are with the jury instructions.” Id. at 114. She concluded that “the jury instructions did not properly instruct the jury that in order to find him a sexually violent predator, the State must prove that there is a ‘high likelihood’ of reoffending and that Westerheide must have ‘serious difficulty in controlling his behavior,’ ” Id.

We are mindful that “[u]nder the Florida Constitution, both a binding decision and a binding precedential opinion are created to the extent that at least four members of the Court have joined in an opinion and decision.” Santos v. State, 629 So.2d 838, 840 (Fla.1994) (footnotes omitted). In Westerheide, while four justices agreed to affirm the district court, only three justices agreed to the opinion. As a result, it appears, or at least it is arguable, that Westerheide does not resolve with finality the question of the sufficiency of the jury instructions. See Kogan & Waters, The Operation & Jurisdiction of The Florida Supreme Court, 18 Nova L.Rev. 1151, 1175 (1994) (stating that a “concurring in result only opinion” can constitute the fourth vote needed for a decision but the result is that there is no precedent beyond the specific facts of that case).

Because Westerheide upheld the commitment and rejected the challenge to the jury instructions, and because Lee did not preserve any error regarding the instructions, we affirm. However, in light of (1) the division of the supreme court in West-erheide as to the sufficiency of the jury instructions, (2) the significance of this issue and its potential impact in numerous cases arising under the Act, and (3) the fact that liberty interests are at stake in commitment proceedings, we certify the following question to the Florida Supreme Court as one of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

We have considered Lee’s other arguments and conclude that he has not demonstrated any basis for reversal. Accordingly, we affirm the commitment order.

Affirmed; question certified.

STRINGER, J., Concurs.

CASANUEVA, J., Concurs with opinion.

CASANUEVA, Judge,

Concurring specially.

I concur with the majority opinion. I write to discuss matters that are likely to be presented in future Jimmy Ryce Act cases, specifically, the character of evidence generally presented to assess whether a detainee poses a risk of future sexual violence and the need for a jury finding on the extent of the detainee’s volitional ability to control his or her behavior.

Before civil commitment may be ordered, the Ryce Act requires a unanimous jury verdict finding that the detainee meets the statutory definition of a sexual predator. § 394.917(1), Fla. Stat. (2001). One element of this civil commitment statute that must be proven is that the detainee is likely to commit future acts of sexual violence. § 394.912(10)(b), Fla. Stat. (2001). This determination examines the detainee’s volitional ability to control his behavior or mental abnormality. To prove these elements, the State generally offers a mental health expert’s clinical opinion, buttressed by the use of actuarial instruments.

Here, experts testified at trial about the likelihood that Mr. Lee would commit a future act of sexual violence based upon findings attained with certain prediction instruments: the Rapid Risk Assessment for Sex Offender Recidivism (RRASOR), the Minnesota Sex Offender Screening Tool (MnSOST-R), the Violence Risk Appraisal Guide (VRAG), and the Sex Offense Appraisal Guide, (SORAG). These tools are used to predict whether the detainee possesses volitional control over his or her behavior or whether the detainee lacks that control and is likely to commit another act of sexual violence. Use of this type of testimony can raise a number of legal concerns: Are the tools an accurate predictor of the likelihood of future conduct? Do the tools measure the detainee’s personal likelihood or do they measure the detainee’s traits against statistics garnered from the conduct of others?

Generally, these assessments may be classified as actuarial instruments, that is, a form of statistical analysis. The assessment seeks to predict the probability that the detainee/offender will commit a new violation within a specified period of time upon being returned to the community by comparing the detainee’s risk factors to similar risk factors of other offenders. Because these actuarial instruments are less than perfect in terms of sensitivity (percentage of true positives) and specificity (percentage of true negatives), most professionals involved in the area recommend the use of multiple actuarial tests.

Initially known as the Statistical Risk Appraisal Guide, VRAG is an actuarial instrument used to predict violent recidivism by examining selected variables that are weighted and computed, rendering a numerical score for the individual. The individual’s total score is then compared to tabulated scores of others, yielding a probability between zero and 100 percent. Among the twelve variable factors used in VRAG assessment are age, marital status, criminal history, and details of the index offense. The tool is used only on adult males. Past studies suggest that VRAG is a good predictor of general violence, but it has not been as effective at predicting sexual offense recidivism.

SORAG is an actuarial instrument that uses fourteen personal characteristics or variables, including prior violent history and deviant sexual preferences. Its probability scores seek to predict the risk of violent sexual assaults in the seven to ten years following an individual’s release into a community.

RRASOR consists of only four components: the number of prior sexual offenses, the offender’s age at release, the gender of the victim, and the offender’s relationship to the victim. As the variables of RRASOR are static, they cannot be used to measure change. One author has characterized its predictive accuracy as “none too impressive.” Finally, the MnSOST-R evaluates sixteen factors and generally has a higher predictive accuracy than RRASOR. Both RRASOR and MnSOT-R are entirely actuarial devices. Scores or probability rates are derived solely from available archival data.

The literature reflects that clinicians and other professionals in this field are currently debating many issues, including whether the actuarial approaches are superior to the clinical judgment of psychiatrists or psychologists, and, if so, why clinicians are employed to conduct the actuarial tests. Recent studies suggest that actuarial approaches, which use explicit, formal procedures for translating ratings on a limited number of risk factors into an overall risk score, are generally more accurate than clinical judgment. Unfortunately, the existing actuarial tools do not seem to address all relevant static risk factors. “Given the current knowledge, sexual predator laws will lead to some individuals being detained who would not offend, and a number of individuals will be released who will reoffend.” Because prediction is never expected to be exact, efforts are being undertaken to improve diagnostic performance.

Recently, a new actuarial method for violence risk assessment has become available. The Iterative Classification Tree (ICT) restricts the risk factors used to generate the actuarial tool to factors commonly available in hospital records or capable of being routinely assessed in clinical practice. The classification tree permits many different combinations of risk factors to be utilized in classifying a person as a high or low risk for violence to others. The ICT has a high degree of accuracy but can be time- and resource-intensive to administer.

Understanding the actuarial evidence will fall to the collective mind of the jury. In determining whether the government has met its statutory duty of establishing that the detainee poses a risk of recidivism sufficient to require his or her detention for an indefinite period of time to insure against the possibility of reoffending, the jury must rely upon the neutral instructions given by the trial court. In Kansas v. Crane, 534 U.S. 407, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002), the Supreme Court held that the state is not required to prove that a detainee lacks complete or total control in order to prove the volitional requirement, the ability of the detainee to control his or her behavior. Rather, proof of a mental abnormality or personality disorder that makes it difficult to control one’s behavior is sufficient. However, the Supreme Court indicated that the Constitution mandates that the trial court must make a determination on lack of control. Under Florida law this must be made by the trier of fact; under the Ryce Act that determination will be made most often by a jury.

In Westerheide v. State, 831 So.2d 93, 107 (Fla.2002), a plurality of the court did not interpret Crane to require a specific jury instruction on the volitional impairment issue as a matter of constitutional significance. Justice Quince concurred in result only and focused, in part, on the sufficiency of the State’s proof of Mr. Westerheide’s inability to control his sexually violent behavior, but her concurrence did not reveal her thoughts on the jury instruction issue. However, Justice Par-iente, joined by Justices Anstead and Shaw, expressed her disagreement with the plurality’s conclusion that “the jury is not required to be explicitly instructed on the State’s burden of proof regarding the standard for commitment of ‘serious difficulty in controlling behavior.’ ” Id. at 115 (Pariente, J., concurring in part and dissenting in part). Failure to so instruct the jury, in Justice Pariente’s view, constitutes reversible error. Id. Justice Pariente also expressed her approval of a line of cases from the First District Court of Appeal reaching the same conclusion on the importance of instructing the jury that it is required to determine whether the offender has serious difficulty in controlling his or her behavior. See White v. State, 826 So.2d 1043 (Fla. 1st DCA 2002); Hudson v. State, 825 So.2d 460 (Fla. 1st DCA 2002).

Because the evidence in these cases will often consist of clinical opinions based in large part on actuarial probabilities coupled with a clinical evaluation, I would respectfully suggest that a standard jury instruction consistent with Crane should be generated and used in future jury trials. Like Judge Webster in Hudson, 825 So.2d at 460, I interpret Crane as establishing a fourth element to the Ryce Act cause of action — an element requiring not only proof from the State but also jury evaluation and finding. Without a proper instruction, the likelihood that the jury will make a constitutionally required finding on volition will be diminished or impaired. See McQueen v. State, 848 So.2d 1220, 1221 (Fla. 1st DCA 2003) (Browning, J., concurring in part and dissenting in part) (expressing the belief that “confusion prevails within the legal community concerning appropriate jury instructions, a situation that creates consequences that hinder the proper administration of justice”).

In the event that the supreme court holds that a jury instruction is not mandated, I would suggest the alternative of requiring the jury to make a finding on the verdict form that the detainee has serious difficulty in controlling his or her behavior. Such a finding might satisfy the constitutional concerns raised in Crane. Because a Ryce Act case places an individual’s personal freedom and liberty at risk for an indefinite term, albeit for the protection of the public rather than as punishment for a criminal offense, both the Constitution and logic mandate that the courts must ensure that the jury or factfinder specifically addresses this essential element of lack of volitional control.

      . Frye v. United States, 293 F. 1013 (D.C.Cir. 1923).

      . We also note that hearsay evidence is permitted in other proceedings in Florida in which life or liberty are at stake, such as the sentencing phase in death penalty cases and probation revocation proceedings. See, e.g., Zack v. State, 753 So.2d 9, 23 (Fla.2000) (noting that pursuant to section 921.141(1), Florida Statutes (1995), in a capital felony case hearsay evidence was admissible in the penalty phase provided that the defendant had a fair opportunity to rebut the evidence); Gammon v. State, 778 So.2d 390, 392 (Fla. 2d DCA 2001) (reiterating that probation cannot be revoked solely on hearsay evidence that would be inadmissible in a criminal trial, but it can be revoked based on that type of evidence together with evidence that is admissible as an exception to the hearsay rule).

      . Apart from the question of the adequacy of the jury instructions, the record contains sufficient evidence to establish that Lee either could not control his behavior or had serious difficulty in controlling his behavior. See Kansas v. Crane, 534 U.S. 407, 413, 122 S.Ct. 867, 151 L.Ed.2d 856 (2002); Westerheide, 831 So.2d at 109.

      . The record reflects that the jury was given a written copy of these instructions to refer to during its deliberations. However, when the trial court orally gave the definition of “mental abnormality,” the trial transcript does not include the words "or volitional.” This may have been a transcription error by the court reporter since neither party objected to the instruction read by the trial court and neither argues this point on appeal. Because the jury had before it the written instructions and there were no objections to the instructions, we decline to consider this issue for the first time on appeal. See Fla. R.Crim. P. 3.390(d); Ashley v. State, 265 So.2d 685, 694 (Fla.1972); Turner v. State, 212 So.2d 801, 803-04 (Fla. 2d DCA 1968).

      . See Pacific Institute for the Study of Conflict and Aggression, Violence Prediction and Risk Analysis: Empirically Based Violence Prediction Systems, at http://www.violence prediction.com/methods.html. (last visited July 15, 2003).

      . R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment? Psychol. Pub. Pol’y & L„ Mar ./June 1998, at 50, 63.

      . Pacific Institute for the Study of Conflict and Aggression.

      . Hanson, at 51 ("Static risk factors, such as a history of childhood maladjustment or prior offenses, can indicate deviant developmental trajectories and, as such, mark long-term propensities to engage in criminal behavior. Static factors, however, cannot determine when offenses will occur, nor can they determine whether offenders have substantially reduced their likelihood of reoffending....”).

      . Eric Drogin, In Search of Psychology: A Jurisprudent Therapy Perspective on Sexual Offender Risk Assessment, The Advocate, March 2000, at 17, available at http://dpa.state.ky.us/Iibrary/advo-cate/marOO/psychol.html (last visited July 15, 2003).

      . Id.

      . Id.; see also Bruce J. Winick, Sex Offender Law in the 1990s: A Therapeutic Jurisprudence Analysis, Psychol., Pub. Pol'y, & L., Mar ./June 1998, at 505, 559.

      . Judith V. Becker & William D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders, Psychol., Pub. Pol'y, & L., Mar ./June, 1998, at 116, 127.

      . John A. Swets, Robyn M. Dawes, & John Monahan, Psychological Science Can Improve Diagnostic Decisions, Psychol. Sci. in the Pub. Int., May 2000, at 1, 1.

      . John Monahan, Henry J. Steadman, Paul S. Applebaum, Pamela C. Robbins, Edward F. Mulvey, Eric Silver, Loren H. Roth, & Thomas Grisso, Developing a Clinically Useful Actuarial Tool for Assessing Violence Risk, Brit. J. of Psychiatry, 2000, at 312.

      . For those who litigate or preside in this field I would recommend the articles published in Psychol., Pub. Pol'y, & L., Mar./June, 1998. This volume was published by the American Psychological Association. I would like to thank Professor John Monahan, University of Virginia, School of Law, who brought this volume to my attention several years ago.


author: WHATLEY, Judge.

text:
    In the Interest of A.D.C., a child. C.C., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D02-4572.
    District Court of Appeal of Florida, Second District.
    Aug. 20, 2003.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellant.
    William Byrne Isaacs, Port Charlotte, for Appellee.
   WHATLEY, Judge.

C.C. appeals the order terminating his parental rights to A.D.C., who was one and a half years old at the time of the termination hearing. We reverse because the Department of Children and Families failed to present clear and convincing evidence to support the three grounds for termination cited in the trial court’s order.

One of the grounds for termination of C.C.’s parental rights cited by the trial court is that set forth in section 39.806(l)(d), Florida Statutes (2001). That statute allows for termination where a parent’s incarceration in a state correctional institution will be for a substantial portion of the period of time before the child attains the age of eighteen. C.C. testified that he was incarcerated on April 12, 2001, at which time A.D.C. was about one and a half months old. C.C. expects to be released from incarceration as early as July 20, 2005, with the accrual of gain time, or at the latest, May 20, 2006. On the latest date, A.D.C. will be five years old, and even at that point in time, it cannot be said that C.C. will have been incarcerated for a substantial period of A.D.C.’s life. See W.W. v. Dep’t.of Children & Families, 811 So.2d 791 (Fla. 4th DCA 2002) (holding that fifty-four months is not a substantial portion of eighteen years). Accord In re AW., 816 So.2d 1261 (Fla. 2d DCA 2002).

Another ground for termination cited by the trial court is that set forth in section 39.806(l)(e) — a parent’s failure to substantially comply with a case plan with the goal of reunification for a period of twelve months after the child has been adjudicated dependent. C.C. has been incarcerated since A.D.C. was about one and a half months old. The evidence is not clear whether he ever received a copy of the case plan, which was filed on April 6, 2001, just six days before he was incarcerated and just over a month after A.D.C. was born. The family services counselor assigned to this case testified that she ■never had contact with C.C. and that it is very difficult to complete case plan tasks while incarcerated. The Department concedes that it should have contacted C.C. about his case plan and facilitated his compliance, but then makes the conclusory assertion that sufficient facts were adduced to support termination of C.C.’s parental rights. ‘Where a court is terminating parental rights based on a parent’s failure to comply with a case plan or performance agreement, it is axiomatic that the parent must have the substantial ability to comply with the plan or performance agreement.” In re E.L.H., 687 So.2d 924, 925 (Fla. 2d D.CA 1997). In light of the fact that the Department could not say whether C.C. had ever been given a copy of the case plan and its acknowledgment that it has made no effort to contact C.C. while he has been incarcerated, the evidence in this case was woefully inadequate to support a finding that C.C. failed to substantially comply with his case plan.

The final ground for termination cited by the trial court is that set forth in section 39.806(l)(i), which allows for termination when the parent’s rights to another child have been terminated involuntarily. C.C.’s rights to his other child were terminated after C.C. failed to appear at the adjudicatory hearing regarding that child. Section 39.801(3)(d) specifically states that “failure to personally appear shall constitute consent for termination of parental rights by the person given notice.” (Emphasis supplied). C.C. was given notice and that notice contained the statutorily required message that failure to appear would constitute consent to the termination of parental rights. § 39.801(3)(a). Consent is defined as “[vjoluntarily yielding the will to the proposition of another; acquiescence or compliance therewith.” Black’s Law Dictionary 276 (5th ed.1979). Thus, it cannot be said that C.C.’s rights to A.D.C.’s sibling were terminated involuntarily, and therefore, the evidence did not support termination based on that ground.

Accordingly, we reverse and remand for proceedings consistent with this opinion.

SALCINES and VILLANTI, JJ., concur.

      . We note that the Department concedes that "the trial court did not properly apply the statute.” It asserts that the court meant to say that because C.C. was incarcerated, continuing the parental relationship with A.D.C. would be harmful to the child. We will not engage in surmising about what a trial court may have meant to find in a termination order.