source: Caselaw Access Project

author: WEBSTER, J.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF TRANSPORTATION, Appellant, v. SOUTHTRUST BANK, an Alabama banking corporation, Appellee.
    Nos. 1D03-3564, 1D04-515.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.

      Pamela S. Leslie, General Counsel; Marianne A. Trussell, Deputy General Counsel, Department of Transportation, Tallahassee, for Appellant.
    William L. Coalson, Jacksonville; William S. Graessle of William S. Graessle & Assoc., P.A., Jacksonville, for Appellee.
   WEBSTER, J.

Appellant seeks review of two orders entered in an eminent domain ease. The first granted appellee’s motion for an enlargement of time within which to file a motion to tax expert witness fees and costs. The second granted appellee’s motion to tax supplemental fees and costs incurred in establishing entitlement to expert witness fees. We affirm.

On April 8, 2003, a stipulated final judgment was entered in appellee’s favor. On May 30, 2003, copies of a motion to tax expert witness fees and costs and a motion for an enlargement of time within which to file the motion to tax fees and costs were served on appellant’s attorney. The latter motion included an affidavit from appel-lee’s attorney’s secretary in which the secretary stated that she had prepared the motion to tax fees and costs on April 29, 2003, but that, due to an “oversight” on her part, it had not been filed or served on opposing counsel until she discovered it in the file on May 29. Appellant responded with a motion to strike the motion to tax fees and costs because it had not been served within the time required by Florida Rule of Civil Procedure 1.525.

In its motion for an enlargement of time, and at the hearing on that motion, appellee argued that the secretary’s oversight constituted “excusable neglect” for purposes of Florida Rule of Civil Procedure 1.090(b) and that, as a result, the trial court should permit the requested enlargement of time. Appellant responded that rule 1.525 established a “bright-line rule,” prohibiting consideration of the motion to tax fees and costs because it was not timely served. The trial court concluded that the secretary’s oversight did constitute excusable neglect for purposes of rule 1.090(b) and, accordingly, granted the motion for an enlargement time. The trial court subsequently entered two orders relating to fees and costs — the first granting the motion to tax expert witness fees and costs, and the second taxing supplemental fees and costs incurred in establishing entitlement to the award made by the first. These consolidated appeals follow.

Appellant continues to argue on appeal that rule 1.525 establishes a bright-line rule requiring that a motion to tax fees or costs be served within 30 days of the entry of judgment. According to appellant, because appellee did not comply with the rule, the trial court was not permitted to consider the motion. Appellee responds that rule 1.525 must be read together with rule 1.090(b), and the latter rule expressly permits enlargements of time such as that granted by the trial court. We agree with appellee.

Rule 1.525 reads:

Any party seeking a judgment taxing costs, attorneys’ fees, or both shall serve a motion within 30 days after filing of the judgment, including a judgment of dismissal, or the service of a notice of voluntary dismissal.

A number of cases have held that the rule was intended to supersede previous case law holding that a motion for fees or costs need only be made within a reasonable time after entry of judgment, and to replace it with a bright-line rule. See, e.g., Ulico Cas. Co. v. Roger Kennedy Constr., Inc., 821 So.2d 452 (Fla. 1st DCA 2002); Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003); Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003). Appellant would have us end our inquiry at this point, and reverse. However, rule 1.090(b) prevents us from doing so.

To the extent pertinent, rule 1.090(b) reads:

When an act is required or allowed to be done at or within a specified time ... by these rules, ... for cause shown the court at any time in its discretion ... upon motion made and notice after the expiration of the specified period, may permit the act to be done when failure to act was the result of excusable neglect, but it may not extend the time for making a motion for new trial, for rehearing, or to alter or amend a judgment; making a motion for relief from a judgment under rule 1.540(b); taking an appeal or filing a petition for certiorari; or making a motion for a directed verdict.

“Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.... Thus, when the language [of a rule] to be construed is unambiguous, it must be accorded its plain and ordinary meaning.” Brown v. State, 715 So.2d 241, 243 (Fla.1998). Moreover, “rules promulgated by the supreme court which deal with the same subject matter should be construed together and in the light of each other.” Dibble v. Dibble, 377 So.2d 1001, 1003 (Fla. 3d DCA 1979). Accord CPI Mfg. Co. v. Industrias St. Jack’s, S.A., 870 So.2d 89, 92-93 (Fla. 3d DCA 2003) (“the rules [of civil procedure] must be read as a cohesive whole, and a rule should not be construed in such a way as to render another rule meaningless”).

We perceive no ambiguity in rule 1.090(b). In clear language, it states that a trial court may enlarge the time within which to perform any “act ... required or allowed to be done at or within a specified time ... by these rules” except those acts enumerated at its end; provided that, if a motion requesting enlargement is not made until after expiration of the time specified, the moving party must demonstrate “excusable neglect.” Even were we to conclude that the rule is ambiguous, however, we would still be required by the rules of construction recited above to construe rules 1.525 and 1.090(b) together, and in such a way as to avoid rendering either meaningless. To adopt appellant’s position, we would have to ignore rule 1.090(b) altogether, thereby rendering it meaningless.

When read together, it seems relatively clear to us that rule 1.525 requires a motion to tax fees or costs to be served within 30 days after entry of judgment unless, by motion filed pursuant to rule 1.090(b) either before or after the 30 days has run, the movant seeks an enlargement of time. If an enlargement of time is requested, the trial court may consider and rule on it according to the requirements of rule 1.090(b). That is precisely what happened in this case. We note that other courts which have considered this same issue have reached the same conclusion. See Carter v. Lake County, 840 So.2d 1153 (Fla. 5th DCA 2003); Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003) (relying on Carter); Lyn v. Lyn, 29 Fla. L. Weekly D1709 (Fla. 2d DCA July 23, 2004) (relying on Carter and Wentworth).

Appellant also argues that, even if rule 1.090(b) applies, the trial court should be reversed because appellee failed to demonstrate “excusable neglect.” Again, we disagree. Our standard of review as to the issue involving construction of the rules is de novo. However, our standard of review as to the trial court’s finding of excusable neglect is whether an abuse of discretion occurred. See Lyn, 29 Fla. L. Weekly at D1710. The trial court clearly did not abuse its discretion here. Courts have attributed the same meaning to the term “excusable neglect” in both rule 1.090(b) and rule 1.540(b). See Carter, 840 So.2d at 1157-58; Lyn, 29 Fla. L. Weekly at D1710. See also Bruce J. Berman, Florida Civil Procedure ¶ 090.4[1], at 68 (2004 ed.). Here, the secretary’s oversight is precisely the type of error found to constitute excusable neglect. Id. ¶ 540.5[l][a], at 649. See also Carter, 840 So.2d at 1158 n. 6 (stating that “[generally, the courts do not find excusable neglect in the attorney’s misunderstanding or ignorance of the law or rules of procedure.... On the other hand, the courts are much more inclined to find excusable neglect when the error occurs due to a breakdown in the mechanical or operational practices or procedures of the attorney’s office equipment or staff.”); Lyn, 29 Fla. L. Weekly at D1710 (citing Carter). We affirm the trial court’s exercise of its discretion by permitting an enlargement of time to serve and file the motion to tax expert witness fees and costs.

Appellant’s second issue asserts that the trial court committed error when it granted appellee’s motion to tax supplemental fees and costs incurred in establishing entitlement to expert witness fees. Having carefully reviewed the record, we conclude that, appellant’s argument to the contrary notwithstanding, the facts of this case are indistinguishable from those in State Department of Transportation v. Nassau Partners, Ltd., 878 So.2d 1286 (Fla. 1st DCA 2004) (on motion for rehearing), a recent decision of this court. Therefore, we are bound by the holding in Nassau Partners to affirm here.

AFFIRMED.

KAHN and POLSTON, JJ., Concur.


author: BROWNING, J.

text:
    Gennaro CALABRESE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4203.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.

      Fred Haddad, of Fred Haddad, P.A., Fort Lauderdale, for Appellant.
    Charles J. Crist, Jr., Attorney General; and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

An amended information charged Gennaro Calabrese (Appellant) with trafficking in cocaine with Karim Mathew Rauf by unlawfully and knowingly purchasing 28 grams or more, but less than 200 grams, of cocaine or any mixture containing cocaine (Count One); conspiracy with Rauf to traffic in cocaine (Count Two); and possession of cocaine with Rauf with the intent to sell (Count Three). Appellant went to trial on Counts One and Two. The jury found Appellant not guilty as to Count One and guilty as charged as to Count Two. On appeal, Appellant contends that the evidence was insufficient to support the conviction for conspiracy to traffic in cocaine, and that the jury instructions were fundamentally erroneous regarding the conspiracy to traffic count on which he was convicted. Regarding the sufficiency of the evidence and assuming, for the sake of argument, that the specific issue were preserved for appellate review, see Showers v. State, 570 So.2d 377, 378 (Fla. 1st DCA 1990), we conclude that the State presented sufficient evidence to send the case to the jury. However, we find that the trial court fundamentally erred by failing to give the “independent act” special jury instruction in conjunction with the instruction on conspiracy to traffic in cocaine. See Reed v. State, 837 So.2d 366, 368-70 (Fla.2002). Accordingly, we reverse Appellant’s conviction and sentence and remand for a new trial.

The State’s theory of the case was that Appellant and Karim Rauf had agreed to purchase cocaine from Michael Edelen and had gone to Edelen’s apartment, where (at the conclusion of the buy) they were arrested and taken into custody. Appellant concedes that the trial court correctly instructed the jury on the trafficking in cocaine count. The court announced that certain drugs and chemical substances are known by law as “controlled” substances, and that cocaine or any mixture containing cocaine is such a controlled substance. The jury was told that the elements of trafficking are as follows: 1) Appellant knowingly purchased a certain substance; 2) the substance was cocaine; 3) the quantity of the substance was 28 grams or more; and 4) Appellant knew the substance was cocaine. See § 893.135(1)(b)1.a., Fla. Stat. (2001); Concepcion v. State, 857 So.2d 299, 300 (Fla. 5th DCA 2003). The court then instructed the jury on criminal conspiracy:

Before you can find the defendant guilty of criminal conspiracy, the state must prove the following two elements beyond a reasonable doubt.
One, the intent of [Appellant] was that the offense of trafficking in cocaine, 28 grams or more, would be committed. And, two, in order to carry out that attempt [sic], [Appellant] agreed, conspired, combined, or confederated with Karim Rauf to cause the purchase of 28 grams or more of cocaine to be committed, either by — either by them or one of them or by some other person. It is not necessary that the defendant do any act in furtherance of the offense conspired.

(Emphasis added). Next, the court instructed the jury on the lesser-included offenses of purchase of cocaine and conspiracy to purchase cocaine.

The trial court gave the “independent act” instruction to the jury as to Count One:

If you find that the crime alleged was committed, an issue in this case is whether the crime of trafficking in cocaine was an independent act of another person other than the defendant.
An independent act occurs when a person other than the defendant commits or attempts to commit a crime, one, which the defendant did not intend to occur, and, two, in which the defendant did not participate, and, three, was outside of and not a reasonably foreseeable consequence of the common design or unlawful act contemplated by the defendant. If you find that the defendant was not present when the crime of trafficking in cocaine occurred, that does not, in and of itself, establish a crime — that the crime of trafficking in cocaine was an independent act of another.
If you find the crime of trafficking in cocaine was an independent act of Kar-im Rauf, then you should find [Appellant], the defendant, not guilty of the crime of trafficking in cocaine.

(Emphasis added). The defense did not object to the jury instructions as given. Appellant contends that it was fundamental error not to instruct the jury on the applicability of the “independent act” doctrine to Count Two (conspiracy to traffic in cocaine) as well.

The charged offenses occurred on or about October 17, 2002, in Alachua County. The defense argued that the cocaine purchase was the independent act of Rauf, brought on by persistent telephone calls from Edelen, a major cocaine trafficker who began cooperating with the police after being arrested. Appellant asserts that the instructions given must have impressed the jury, for it acquitted him on the trafficking count. The jury was not clearly instructed that the “independent act” doctrine applies not only to trafficking in cocaine, but also to conspiracy to traffic, and it found Appellant guilty as charged on Count Two. The offense of criminal conspiracy involves at least two persons. See § 777.04(3), Florida Statutes (2001). Thus, the conspiracy itself could not have been the independent act of Rauf alone. However, the jury heard conflicting evidence regarding how much cocaine Appellant agreed and expected to purchase from Edelin, and whether it was an amount sufficient to constitute trafficking under section 893.135(l)(b)l.a. If it had been fully, properly instructed, the jury could have found that although Appellant and Rauf conspired to purchase cocaine, Rauf acted independently in deciding to buy a greater weight of cocaine (thereby meeting the statutory requirements for trafficking) than the amount to which Appellant had agreed or conspired to buy. The failure to give a complete instruction concerning a disputed element of the offense confused the jury and denied it an opportunity to “acquit” Appellant. Such a deficiency in a jury instruction constitutes fundamental error according to Reed, 837 So.2d at 369-70, which is not subject to “harmless error” review.

Appellant asserts that the instruction given on criminal conspiracy is erroneous in stating: “In order to carry out the intent, [Appellant] agreed, conspired, combined, or confederated with Karim Rauf to cause the purchase of 28 grams or more of cocaine to be committed, either by ... them or one of them or by some other person.” (Emphasis added). Specifically, Appellant argues that the use of the word “or” constitutes fundamental error. Given the record evidence that the conspiracy to purchase, if any, involved only Rauf and Appellant, there is no basis for instructing the jury that it could find Appellant conspired with Rauf to purchase 28 grams or more of cocaine, with the purchase to be committed “by some other person.” Ede-len was the seller, not a purchaser. Given the possibility this issue will arise on retrial, we note this language in the instruction is erroneous.

Appellant’s conviction and sentence are REVERSED, and the case is REMANDED for a new trial.

BENTON and POLSTON, JJ., Concur.


author: POLSTON, J. BROWNING, J.,

text:
    Michael John SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4977.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.

      Wm. J. Sheppard and Matthew R. Ka-ehergus of Sheppard, White and Thomas, P.A., Jacksonville, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General; and Robert R. Wheeler, Assistant Attorney General, Tallahassee, for Appel-lee.
   POLSTON, J.

Appellant Michael John Simmons brings facial constitutional challenges against criminal statutes sections 847.0135 and 847.0138, Florida Statutes (2002), relating to use of the Internet. These constitutional issues are reviewed de novo. See Enter. Leasing Co. S. Cent., Inc. v. Hughes, 833 So.2d 832, 834 (Fla. 1st DCA 2002). Because these statutes are not unconstitutional, we affirm the appellant’s convictions under these statutes.

In the early morning hours of July 1, 2002, a Columbia County Deputy Sheriff entered an Internet chat room, titled “I like older men,” posing as a 13-year old girl named “Sandi.” An on-line conversation ensued between Sandi and appellant, who was in the Commonwealth of Virginia. After Sandi identified herself as a 13-year-old girl in Florida, appellant repeatedly communicated with Sandi about sexual activities, sent nude pictures of himself to Sandi, asked Sandi to send him a pair of panties, asked to teach Sandi about sex, encouraged Sandi to meet him for sexual activities, and eventually made a trip to Lake City, Florida, in order to meet Sandi for three days of sexual activities at a hotel. Members of the Columbia County Sheriffs Office met and arrested appellant at the hotel in Lake City, Florida, upon his arrival.

Appellant was charged in count one with luring or enticing a child by use of an online service, in violation of section 847.0135, in count two with transmission of materials harmful to a minor, in violation of section 847.0138, and in count three with carrying a concealed firearm, in violation of section 790.01(2), Florida Statutes (2002). Appellant moved to dismiss count one of the information, alleging that section 847.0135 imposes an unconstitutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution. He moved to dismiss count two on the grounds that section 847.0138 violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution and imposes an unconstitutional burden on interstate commerce in violation of Article I, Section 8, Clause 3 of the United States Constitution. Appellant also moved to dismiss count two of the information on the basis that his prosecution for violations of both sections 847.0135 and 847.0138 constituted a double jeopardy violation. In addition, appellant moved to dismiss both counts one and two on the ground that the trial court lacked jurisdiction to proceed on the matter.

Following hearings on appellant’s motions to dismiss, the trial court denied the motions. After the trial court ruled, appellant pled no contest to counts one and two of the information, reserving his right to appeal the denial of his dispositive motions to dismiss. Appellant was sentenced to two concurrent five-year terms of probation. We affirm the trial court’s ruling rejecting the dormant commerce clause challenge against section 847.0135, in count one, in accordance with this court’s recent ruling in Cashatt v. State, 873 So.2d 430 (Fla. 1st DCA 2004) (holding that section 847.0135 does not violate the commerce clause).

I.

Appellant challenges section 847.0138 on the basis that it violates the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 4 and 9 of the Florida Constitution. Section 847.0138 states:

(1) For purposes of this section:
(a) “Known by the defendant to be a minor” means that the defendant had actual knowledge or believed that the recipient of the communication was a minor.
(b) “Transmit” means to send to a specific individual known by the defendant to be a minor via electronic mail.
(2) Notwithstanding ss. 847.012 and 847.0133, any person in this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual known by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775,083, or s. 775.084.
(3) Notwithstanding ss. 847.012 and 847.0133, any person in any jurisdiction other than this state who knew or believed that he or she was transmitting an image, information, or data that is harmful to minors, as defined in s. 847.001, to a specific individual know by the defendant to be a minor in this state commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added). Relevant definitions, provided in section 847.001, are:

(1) “Adult” means a person 18 years of age or older.
(6) “Harmful to minors” means any reproduction, imitation, characterization, description, exhibition, presentation, or representation, of whatever kind or form, depicting nudity, sexual conduct, or sexual excitement when it:
(a) Predominantly appeals to the prurient, shameful, or morbid interest of minors;
(b) Is patently offensive to prevailing standards in the adult community as a whole with respect to what is suitable material for minors; and
(c) Taken as a whole, is without serious literary, artistic, political, or scientific value for minors.

Appellant contends that section 847.0138 is not narrowly tailored to serve a compelling state interest, is vague, and is overbroad. We disagree and, therefore, affirm.

Appellant argues that because section 847.0138 restricts expression protected by the First Amendment based on its content, it is presumptively invalid and can only be upheld if it survives strict scrutiny, citing United States v. Playboy Entm’t Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000). The State concedes that strict scrutiny applies as argued by appellant and makes no argument that the prohibited expression that is “harmful to minors” constitutes obscene communication not protected by the First Amendment. “Sexual expression which is indecent but not obscene is protected by the First Amendment.” Sable Communications of Cal., Inc. v. FCC, 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989). Accordingly, because section 847.0138 “regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest, [citing Sable Communications, 492 U.S. at 126, 109 S.Ct. 2829], If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative.” Playboy Entm’t Group, Inc., 529 U.S. at 813, 120 S.Ct. 1878.

“The state has a compelling interest in protecting the physical and psychological well-being of children, which extends to shielding minors from material that is not obscene by adult standards, but the means must be carefully tailored to achieve that end so as not to unnecessarily deny adults access to material which is indecent (constitutionally protected), but not obscene (unprotected). See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 244-45, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002); Sable Communications, 492 U.S. at 130-31, 109 S.Ct. 2829, 106 L.Ed.2d 93.” Cashatt v. State, 873 So.2d 430, 434 (Fla. 1st DCA 2004); see also Reno v. ACLU, 521 U.S. 844, 875, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997)(stating that the Court has “repeatedly” recognized the government’s interest in protecting children from harmful materials, citing Ginsberg v. New York, 390 U.S. 629, 639, 88 S.Ct. 1274, 20 L.Ed.2d 195 (1968) and FCC v. Pacifica Found., 438 U.S. 726, 749, 98 S.Ct. 3026, 57 L.Ed.2d 1073 (1978)); Morris v. State, 789 So.2d 1032, 1036 (Fla. 1st DCA 2001) (en banc) (holding that a defendant committed a lewd or lascivious act by telling a child that he desired to engage her in oral sex, using language which described this in a graphic manner; the dissent opined that the majority’s construction of the lewd or lascivious statute was “outlawing speech” and should be more narrowly construed to not apply to speech so it would not be unconstitutional). Appellant does not argue that the government lacks a compelling interest, but asserts that section 847.0138 is not sufficiently tailored to promote such an interest.

Appellant argues that section 847.0138 is overbroad because it “limits communications on the Internet to those which would only be suitable for children, thereby depriving adults of their constitutional right to engage in protected speech.” We disagree because section 847.0138 only pertains to harmful images, information, or data that is sent to a specific individual known by the defendant to be minor, “via electronic mail.” See §§ 847.0138(l)(b), 847.0138(3), Fla. Stat. Because the defendant must have actual knowledge or believe that the recipient of the communication was a minor, see § 847.0138(l)(a), Fla. Stat., adults are not deprived of their constitutional right to engage in protected speech. Communications from adult to adult(s), from adult to those who are believed to be an adult (including minors who are posing as an adult on the Internet), and from adult to those who are not known (by actual knowledge or belief) to be an adult or minor are not restricted by this statute. Only communications to a minor are prohibited.

Much of the constitutional discussion by the parties and by my respected colleague, Judge Browning, in his dissent, involves “chat rooms” and whether indecent, but not obscene, adult to adult speech is chilled by the statute. The analysis for protection of speech under the First Amendment is the same when the speech occurs in a computer chat room with text messaging as when the speech occurs in a normal room with everyone physically present speaking audibly. If an adult and a minor are in a room and the adult conveys harmful material to the minor, there is no chilling effect and no constitutional protection should be afforded to the offending adult. If there are other adults in the room, the offending adult may convey the indecent material to the other adults without concern of violating the statute, even though the minor is present in the room. There is no chilling effect of the statute for adult to adult communication because it has no application. An adult cannot convey harmful material to the minor with other adults watching with constitutional protection just because he can get other adults in the room to watch his harmful, indecent behavior specifically directed to the minor. We decline to follow such twisted constitutional analysis.

Section 847.0138 does not prohibit information posted on websites directed to the public. The prohibited communication from the adult to the minor must be sent by “electronic mail.” See § 847.0138(l)(b), Fla. Stat. “Mail” is defined as “[o]ne or more written or oral messages sent electronically (e.g., through e-mail or voice-mail).” Black’s Law Dictionary 963 (7th ed.1999); see also Merriam-Webster’s Collegiate Dictionary 701 (10th ed.l998)(defin-ing “mail” as “messages sent electronically to an individual (as through a computer system)).” The electronic mail must be “transmitted,” defined in section 847.0138(l)(b) as “to send to a specific individual known by the defendant to be a minor via electronic mail.” We agree with the State that for the electronic mail to be sent to a specific individual, it must be specifically addressed to the individual, whether in instant messaging or e-mails sent and read at different times. See Merriam-Webster’s Collegiate Dictionary 701 (10th ed.1998) (defining “send” as “to cause to be carried to a destination”). Because this is a plain reading of the statute, we do not rely on any legislative history cited by the parties. See Fla. Dep’t of Revenue v. Fla. Mun. Power Agency, 789 So.2d 320, 324 (Fla.2001).

Appellant relies predominately on Reno, 521 U.S. at 875, 117 S.Ct. 2329 (declaring the Communications Decency Act of 1996 unconstitutional), and argues that the government’s interest in protecting children “does not justify an unnecessarily broad suppression of speech addressed to adults.” “[T]he level of discourse reaching a mailbox simply cannot be limited to that which would be suitable for a sandbox.” Id. (quoting Bolger v. Youngs Drug Prods., Corp., 463 U.S. 60, 74-75, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)). The Court stated that it was an “incorrect factual premise that prohibiting a transmission whenever it is known that one of its recipients is a minor would not interfere with adult-to-adult communication.” Id. at 876, 117 S.Ct. 2329. Given the size of potential audiences for most messages, the Court noted that under the Act, the “sender must be charged with knowing that one or more minors will likely view it,” and thus communication among adults would be burdened. Id. “The Government agrees that these provisions are applicable whenever ‘a sender transmits a message to more than one recipient, knowing that at least one of the specific persons receiving the message is a minor.’ ” Id. at 876 n. 42, 117 S.Ct. 2329.

We agree with the State that Florida’s law differs from the federal law at issue in Reno because section 847.0138 only applies to electronic mail sent to a specific individual known to be a minor, not to a group that is “likely” to include a minor. Section 847.0138(l)(b) requires a transmission, which means sending “to a specific individual known by the defendant to be a minor via electronic mail.” Significantly, the Communications Decency Act of 1996 at issue in Reno has no similar provision.

Adults may address communications directly to other adults, and to a large group, without violating section 847.0138. Only messages sent to a “specific individual known to be a minor” that are harmful to minors are prohibited. The Florida statute is more narrowly tailored than the Communications Decency Act at issue in Reno. The level of discourse reaching a mailbox may be limited to that which would be suitable for a sandbox if the mail is knowingly sent to a mailbox that is in the sandbox. That is what section 847.0138 does. See Rowan v. United States Post Office Dep’t, 397 U.S. 728, 736-38, 90 S.Ct. 1484, 25 L.Ed.2d 736 (1970) (holding that a statute, prohibiting unwanted mail did not violate the First Amendment; “[w]eighing the highly important right to communicate, but without trying to determine where it fits into constitutional imperatives, against the very basic right to be free from sights, sounds, and tangible matter we do not want, it seems to us that a mailer’s right to communicate must stop at the mailbox of an unreceptive addressee;” a householder should not “have to risk that offensive material come into the hands of his children before it can be stopped”).

II.

We are not persuaded by appellant’s argument that the statute is “im-permissibly vague” because the statute applies to minors without attempting to classify materials differently for older age groups. See People v. Hayne, 2002 WL 470853, at *5 (Cal.App. 5th Dist.2002)(rejecting the same argument that a statute is vague; “Appellant’s argument that matter may be harmful to a five-year old but not to a 17 year old has no merit. It is within the Legislature’s power to determine that certain matter is harmful for all minors. There is no indication that the definition of harmful matter will change depending on the age of the minor.”). The Legislature has the responsibility and authority to protect all of our children, even the older ones. See Jones v. State, 640 So.2d 1084, 1085-87 (Fla.1994)(holding that Florida’s statutory-rape provision is constitutional even though the teenage girls consented; rejecting the argument that minors’ rights of privacy “vitiate the legislature’s efforts and authority to protect minors from conduct of others”; the “State has the prerogative to safeguard its citizens, particularly children, from potential harm when such harm outweighs the interests of the individual”). Therefore, we decline to rule that additional statutory distinctions should be made for different age groups as held by the Third Circuit in ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir.2003), aff'd and remanded, — U.S. -, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004).

In arguing that the statute is vague, appellant further cites Ashcroft, noting that the Third Circuit Court of Appeals held that the Child Online Protection Act is unconstitutional because the “harmful to minors” language is vague. Id. at 251-53. The “harmful material” is to be reviewed “as a whole,” and the court ruled that because the Child Online Protection Act “mandates evaluation of an exhibit on the Internet in isolation, rather than in context” of the work as a whole, it is not narrowly tailored. Id. Because section 847.0138 is narrowly tailored by limiting the harmful material to those sent to minors by electronic mail, it is appropriate to evaluate the communication without considering the rest of the Internet. For example, if excerpts (that taken as a whole are harmful to minors) of a video posted on the Internet (that taken as a whole is not harmful to minors) are cut from the whole video and sent to a minor, then the transmission violates section 847.0138. The whole video posted on the Internet need not be reviewed in context because the restriction only applies to those transmissions to known minors by electronic mail, and the minor only received the excerpts, not the entire video. One who sends harmful materials by electronic mail to known minors cannot be shielded by taking materials out of context and sending only those materials without restriction because they are extracted from some larger work the minors have not seen. Accordingly, section 847.0138 is narrowly tailored and not vague.

III.

Appellant also challenges section 847.0138 as violating the dormant Commerce Clause, which we reject for the same reasons relating to section 847.0135 as addressed in Cashatt, and because a violator who is not in Florida must know or believe that he or she is transmitting harmful material to a Florida minor. See § 847.0138(3), Fla. Stat.

We do not agree with appellant’s argument that section 847.0135 violates the Commerce Clause because it subjects interstate use of the Internet to inconsistent state regulation. Congress specifically provides for preemption of state law when it desires. For example, the Florida Supreme Court recently held, in Doe v. America Online, Inc., 783 So.2d 1010 (Fla. 2001), that the federal Communications Decency Act preempted Doe’s cause of action against AOL for negligence per se in violating section 847.0135 by allowing Richard Lee Russell to lure her son, eleven years old, and two other minor males to engage in sexual activity with each other and Russell.

The Communications Decency Act, 47 U.S.C. § 230(c)(2), restricts civil liability against providers or users of interactive computer services, which was the basis of the Court’s ruling. The Act, however, further states that “[n]othing in this section shall be construed to prevent any State from enforcing any State law that is consistent with this section. No cause of action may be brought and no liability may be imposed under any State or local law that is inconsistent with this section.” Doe, 783 So.2d at 1012 n. 4 (quoting 47 U.S.C. § 230(d)(3)).

Appellant makes no argument that section 847.0135 is contrary to any federal law or that federal law so thoroughly occupies the legislative field as to require a reasonable inference that Congress left no room for it to be supplemented by state law. See Safeharbor Employer Servs. I, Inc. v. Velazquez, 860 So.2d 984 (Fla. 1st DCA 2003)(rejecting the federal law preemption argument because there was no express preemption language, no conflict between state and federal law, and the federal law did not thoroughly occupy the field of law).

Conclusion

Therefore, we reject appellant’s facial constitutional challenges against sections 847.0135 and 847.0138, Florida Statutes.

AFFIRMED.

HAWKES, J. concurs; BROWNING, J., concurring in part and dissenting in part by Separate Opinion.

BROWNING, J.,

concurring in part and dissenting in part.-

I concur with the majority opinion as it applies to section 847.0135, Florida Statutes (2002). However, I dissent from the opinion relating to section 847.0138, Florida Statutes (2002).

I dissent because contrary to the majority opinion, section 847.0138 cannot withstand strict scrutiny, as it is not narrowly tailored to promote a compelling governmental interest, is void for vagueness, and violates the overbreadth principle under the First and Fourteenth Amendments to the United States Constitution, and article I, sections 4 and 9, of the Florida Constitution. Also, these deficiencies cause section 847.0138 impermissibly to transgress the Commerce Clause. In my judgment, a review of the appropriate authorities, including those relied upon by the majority, supports a decision that section 847.0138 is facially unconstitutional.

Strict Scrutiny

The majority recognizes that the prohibited expression covered by section 847.0138 is non-obscene and that the prohibition is content-based. Accordingly, it is constitutional only if it can survive the strict scrutiny test. “Strict scrutiny requires that a statute: (1) serve a compelling interest; (2) be narrowly tailored to achieve that interest; and (3) be the least restrictive means of advancing that interest.” Sable Communications, 492 U.S. at 126, 109 S.Ct. 2829.

The majority finds that section 847.0138 is narrowly tailored because “electronic mail” is limited to “only messages sent to a specific individual known to be a minor.” That statement is true, but it provides an insufficient basis for finding section 847.0138 constitutional as narrowly tailored. Mechanically, the statute could, and should, be further limited to one-on-one e-mail communications rather than just to “electronic mail.” To its credit, the State, in an attempt to salvage the statute’s constitutional validity, advocates in its answer brief that the definition of “electronic mail” be construed by this Court to apply to one-on-one e-mail only.

The majority opines that Appellee did not make the foregoing concession in its brief. I disagree. Statements in Appel-lee’s answer brief belie the majority’s conclusion. At pages 3, 16, and 25, respectively, Appellee states: “Similarly, the overbreadth concerns expressed in ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir.2003) in regard to the definition of ‘harmful to minor’ are not applicable to this statute that regulates personal, one-on-one e-mail communication”; “In comparison, § 847.0138, Fla. Stat. (2002) regulates only personal, one-on-one e-mail transmissions”; and “ § 847.0138, Fla. Stat. (2002) is not over-broad, but narrowly tailored to prohibit the transmission of harmful materials to a known minor by personal, one-on-one email communication.” Thus, the concession was made, and the majority’s refusal to acknowledge its existence does not alter this fact. Furthermore, during oral argument this point was addressed with counsel for Appellee, who was asked in substance: “Unless we interpret section 847.0138’s definition of ‘electronic mail’ to be limited to personal one-on-one e-mail, is the statute constitutional?” to which he replied “no.” Notwithstanding this concession, the majority fails to include such interpretation in its opinion yet finds, what Appellee will not defend, that section 847.0138 is constitutional.

The majority, for its “fall-back position,” opines that, even if made, Appellee’s concession is erroneous, and the court does not have to accept it, citing Perry, 808 So.2d at 268 as authority. In my judgment, this principle is limited to special circumstances, as in Perry, because concessions are highly favored, and it is extremely rare when any court fails to accept a concession when fairly made by competent counsel, as here. This is a high-profile case, and Appellee’s concession necessarily included a determination by the Attorney General’s staff, after considerable consideration, that the law is sufficiently clear on this issue for counsel to anticipate that this court would not find § 847.0138 constitutional unless it was limited to one-on-one e-mail. In the past, I have written in opposition to this Court’s occasional proclivity to refuse to accept a counsel’s concession. See Reed v. State, 783 So.2d 1192 (Fla. 1st DCA 2001), quashed, 837 So.2d 366 (Fla.2002). In Reed, I stated, and it is equally applicable here:

It appears to me the majority is unwarranted substituting its judgment for that of the attorney for the State. Such action entails the risk of this court’s being perceived in a non-neutral manner and injects it into an area well-defined and preserved for that of the advocate. I fear that in the future, attorneys will be hesitant to concede error, as here, because of the potential for embarrassment that will necessarily flow when this court points out what it concludes to be an erroneous concession from time to time. Such overruling of the professional judgment of lawyers should occur only when the procedures and jurisdiction of this court are a consideration, and when recognition of a concession effects a repudiation of an established precedent of this court. Clearly, the efficient administration of justice can best be served by approval of concessions by attorneys, except in such limited circumstances. I further feel that an attorney for a party is more likely than a panel of this court to evaluate correctly a substantive point of law as to whether or not a concession should be made in a case.

The majority disregards the “heckler veto” by its sweeping statement at footnote 5 of the majority opinion that: “There is no heckler veto ... because the statute only applies to communications specifically sent to minors.” Such statement implies a misunderstanding of a “heckler’s veto’s” composition. If a minor is an unknown member of a chat room, an over-zealous guardian of perceived “incorrect expression” need only notify all the members of a chat room of the name and minority of a minor member of such chat room to make any future messages subject to the sweep of § 847.001(6)(c). In my judgment, these facts make the “heckler veto” a real threat to free speech, as it places non-obscene expression under the standard of § 847.01138. The majority’s refusal to accept this irrefutable circumstance does not obviate its existence and impact. Moreover, I am fortified in my belief by the fact that Justice Stevens has, contrary to the majority view, recognized a “heckler veto” as a real threat to free speech in similar circumstances. Reno v. ACLU, 521 U.S. at 866, 117 S.Ct. 2329.

Notwithstanding the foregoing, the definition of a “minor” in section 847.0138 is not narrowly tailored. A “minor” is defined in section 847.0138 as anyone under 18 years of age. In the context of this statute, such a definition is woefully inadequate. For example: under section 847.0138, a message to a five-year-old is treated the same as a message to a 17-year-old. In other words, it is a “one size fits all” approach in the area of our most treasured liberty — that of free expression. This requires a Web publisher to compose all messages to meet the standards of the youngest minor, because no distinction is made among the levels of intelligence and emotional maturity of minority. In my judgment, to find such a statutory range to be reasonable and clear is illogical on its face. Too broad an intellectual and emotional disparity exists between a five-year-old and a 17-year-old to expect a reasonable person to compose a lawful message to a 17-year-old that might not transgress section 847.0138 as to a five-year-old. The statute would reduce message content to the lowest common denominator, that of the youngest minor, and thereby “chill” free speech in an unconstitutional manner.

An examination of specific subjects highlights the “draconian impact” of section 847.0138 and its constitutional invalidity. For example, the following could be labeled a violation under section 847.0138, depending on the personal view of individual prosecutors: minors could not lawfully be afforded a basic sex education illustration of how to affix a condom to avoid HIV and venereal disease, and illustrations used for legitimate scientific or educational purposes could be a violation. Even a depiction of Michelangelo’s David would be suspect because of the statue’s exposed genitalia. Furthermore, messages to married persons under 18 years of age would be covered and constitute a violation. Surely such restrictions cannot, and should not, prevail in our society under the freedom of speech guarantee that was enacted to maximize non-obscene expression without regard to conformance with majority standards of “public morality” or “acceptable expression” that prevail from time to time in our society.

Moreover, the constitutional infirmities in defining a “minor” as one under 18 years of age in section 847.0138 have been addressed by other courts in similar situations and determined contrary to the majority opinion. See Ashcroft, 322 F.3d at 240. In Ashcroft the court, in finding substantially the same definition of a minor as utilized in section 847.0138 unconstitutional as not narrowly tailored, stated:

COPA defines the term minor as “any person under 17 [seventeen] years of age.” Id. § 231(e)(7). [FN 15] The statute does not limit the term minor in any way, and indeed, in its briefing, the Government, in complete disregard of the text, contends that minor means a “normal, older adolescent.” Orig. Gov’t Br. At 32; Gov’t Br. on Remand at 27-28; Gov’t Reply Br. On Remand at 4-5. We need not suggest how the statute’s targeted population could be more narrowly defined, because even the Government does not argue, as it could not, that materials that have “serious literary, artistic, political or scientific value” for a sixteen-year-old would have the same value for a minor who is three years old. Nor does any party argue, despite Congress’s having targeted and included all minors seventeen or under, that pre-adolescent minors (i.e., ages two, three, four, etc.) could be patently offended by a “normal or perverted sexual act” or have their “prurient interest” aroused by a “post-pubescent female breast,” or by being exposed to whatever other material may be designed to appeal to prurient interests.

Id. at 253-54, 122 S.Ct. 1389 (underlining added).

I well realize that enforcement in such situations is subject to the discretion of the particular enforcer, but that is the very reason for the “narrowly tailored” doctrine. People are entitled to exercise freedom of expression in an expansive manner, and section 847.0138 does not remotely meet that requirement. To the contrary, for the reasons stated, section 847.0138 creates a legal dilemma that is impossible to circumvent in perfectly legitimate situations other than by the “chilling” of permissible expression.

The majority discounts the precedential impact of Ashcroft on the basis that the statute there did not contain a provision, as does section 847.0138, limiting a transmission “to a specific individual known by the defendant to be a minor via electronic mail.” With all deference to my colleagues, in my judgment this provides no logical basis for finding Ashcroft “not applicable.” The definition of “minor” has nothing to do with how a “minor” receives a transmission, but has everything to do with inherent emotional and intellectual differences within the age groups that constitute a “minority.” The same problem of tailoring expression to a 17-year-old that is not unlawful as to a five-year old, or vice versa, is a dilemma whether the message is sent to a chat room or by one-on-one email. Accordingly, such a dilemma caused the Ashcroft court to find almost the identical definition of “minor” there to be unconstitutional. The method of transmission of messages to different age groups forming a minority had no bearing on that court’s final determination of unconstitutionality for failure to narrowly tailor the definition of “minor.” Accordingly, Ashcroft is applicable here and compels a ruling that section 847.0138 is unconstitutional.

The majority bases its determination that the definition of “minor” in section 847.0138 is constitutionally sufficient by reliance on Hayne, 2002 WL 470853. However, a reading of Hayne reveals that the majority, while adopting the court’s reasoning that a definition of “harmful matter” as to “minors” is constitutional, ignores other parts of the California statute that justify that court’s approach but have no relevancy to section 847.0138. Proper statutory construction requires that a statute be construed as a whole where provisions are dependent, and not in isolation by disregarding a statutory provision that affects another provision. But that is precisely the approach adopted by the majority.

In Hayne the court construed section 288.2 Cal.Code Annotated, which provides:

§ 288.2 Harmful matter sent with intent of seduction of minor.
(a) Every person who, with knowledge that a person is a minor, or who fails to exercise reasonable care in ascertaining the true age of a minor, knowingly distributes, sends, causes to be sent, exhibits, or offers to distribute or exhibit by any means, including, but not limited to, live or recorded telephone messages, any harmful matter, as defined in Section 313, to a minor with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of that person or of a minor, and with the intent or for the purpose of seducing a minor, is guilty of a public offense and shall be punished by imprisonment in the state prison or in a county jail. [Emphasis added]

Plainly, a person can be convicted under such provision for furnishing “harmful matter” to a “minor” only if it is combined “with the intent of arousing, appealing to or gratifying the lust or passions or sexual desires of that person or of a minor,” and “with intent or for the purpose of seducing a minor.” The requirement of intent to sexually arouse and gratify and to seduce a minor provides a common threat of harm throughout minority and supports state action. In contrast, section 847.0138 makes the transmission of “material harmful to minors” an offense based solely on the material’s content without any requirement of intent to inflame a minor’s passion for the purpose of seduction. Clearly, for these reasons Hayne provides no support for the majority’s reliance.

Although the foregoing reasons should preclude the majority’s use of Hayne as an authority, there are more provisions of the California Code, omitted from section 847.0138, and ignored by the majority, that support a constitutional determination there. The California Code contains numerous affirmative defenses to prosecution that act as a buffer for protected expression otherwise covered by the statute. These defenses are available when the “act charged was committed in aid of legitimate scientific or educational purposes,” or harmful matter is distributed by a parent or guardian to aid legitimate sex education. See section 313.2, 313.3 CaLCode. These affirmative defenses and the arousal and seductive intent provisions of section 288.2 Cal.Code ensure that minors are protected with substantial notification to potential violators of such proscription without undue impingement of protected free speech.

The constitutional significance of the intent elements of section 288.2, when combined with the affirmative defenses to its implementation, was directly addressed by the Hayne court as follows:

Section 288.2 only criminalizes the transmission of harmful matter to a known minor, with the intent to arouse the minor’s sexual desires and with the intent to seduce the minor. The narrow scope of the statute does not infringe upon the dissemination of constitutionally protected speech. For example, it does not prevent adults from transmitting indecent messages to each other. (Hsu, supra, at pp. 988-989, 99 Cal. Rptr.2d 184). The narrowness of the statute distinguished it from the statute at issue in Reno. The CDA did not require the accused to transmit material with the dual intent of arousing the sexual desires of the person or of a minor and of seducing the minor. (Id. at pp. 989-990, 99 Cal.Rptr.2d 184.)
Moreover, the statute’s built-in affirmative defenses, further limits the statute’s reach. Section 288.2 expressly provides for defenses where a parent transmits harmful material to aid legitimate sex education, or where an adult transmits the material in aid of legitimate scientific or educational purposes. (§ 288.2, subds.(c) & (d)). The narrowness of the statute allowed it to survive a First Amendment challenge. (People v. Hsu, supra, 82 Cal.App.4th at pp. 988-990, 99 Cal.Rptr.2d 184).

Hayne, 2002 WL at *7.

From the above language I conclude that the statute’s intent provisions and affirmative defenses are essential to the court’s finding that section 282.2 is narrowly tailored. Accordingly, because section 847.0138 contains no similar provisions, in my judgment it is implausible for the majority to advance Hayne as a basis for a finding that section 847.0138 is constitutional. Simply put, Hayne provides no support for the majority’s opinion, but supports a contrary result.

The majority dismisses the foregoing distinctions of California law as a “red herring” because of the definition of “harmful to minors” contained in § 847.001(6)(c) (defining harmful materials to include “taken as whole, is without serious literary, artistic, political or scientific value of minors.”) With all due deference to my colleagues, this provision provides no basis for disregarding such distinctions and reveals the weak logical underpinning of the majority opinion. The majority apparently ignores, or overlooks, that the California statute considered in Hayne contains almost the identical language as § 847.001(6). See sec. 313 Cal.Code Annotated (defining harmful materials to include “taken as a whole, lacks serious literary artistic, political or scientific value for minors.”) Yet, despite this similarity (the difference between “without” and “lacks”) the California legislature, and the Hayne court, contrary to the majority’s view, place great constitutional emphasis on the distinctions the majority dismisses as a “red herring.” In my judgment, disregarding constitutional factors relied upon by the California legislature and the Hayne court to properly protect and preserve freedom of expression to justify a decision finding constitutionality here is hardly susceptible to the moniker “red herring.” These factors are serious matters that affect the very basis of our ordered liberty' — -freedom of speech, free from governmental regulation of non-obscene expression regardless of how well-intended the regulation might be, and the public view of acceptable expression that prevails from time-to-time. To disregard such concepts as the majority does leaves ajar the “door of censorship” under the well-intended dictates of public officials, and citizens that push them to enforce conformity to popular community mores. Free expression is the bedrock of our society, and it should not be restricted except in clearly defined areas not accomplished by § 847.001(6)(e).

In a similar vein the majority dismisses my metaphorical reference to the statue of David. I stand by that analogy. There are profound differences between the age levels of minority. Can it be seriously argued that the sexuality of a six-year old is not radically different from a 17-year old? If not, I would not publish this dissent that in large part is predicated on the legislature’s failure to consider such obvious differences of minority age levels.

Overbreadth

Section 847.0138 is unconstitutional because it violates the overbreadth doctrine. That doctrine precludes an abridgement of unprotected speech if a substantial amount of protected speech is prohibited or chilled in the process. See Ashcroft v. Free Speech Coalition, 535 U.S. 234, 255, 122 S.Ct. 1389, 152 L.Ed.2d 403 (2002). For the reasons stated under my strict scrutiny analysis, section 847.0138 is unconstitutional as too broad. Clearly, the legislature’s failure to define “minor” more precisely and to limit section 847.0138’s scope to one-on-one e-mail, and its further failure to exempt messages to married persons under 18 years of age, e.g., when a parent transmits “harmful material” to aid sex education, or transmissions in aid of legitimate scientific or educational purposes, violate the over-breadth doctrine, and section 847.0138 is, accordingly, unconstitutional.

Vagueness

Also, section 847.0138 is too vague to pass constitutional muster. A statute is unconstitutionally vague if it prohibits an act written in a manner “so vague that [persons] of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v. Gen. Const. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 70 L.Ed. 322 (1926).

This principle was also specifically addressed by the Ashcroft court as follows:

COPA’s definition of “minor” includes all children under the age of seventeen, as we have noted. Because the statute’s definition of minor is all-inclusive, and provides no age “floor,” a Web publisher will be forced to guess at the bottom end of the range of ages to which the statute applies. The fearful Web publisher therefore will be forced to assume, and conform his conduct to, the youngest minor to whom the statute conceivably could apply. We cannot say whether such a minor would be five years of age, three years, or even two months. Because we do not think a Web publisher will be able to make such a determination either, we do not think that they have fair notice of what conduct would subject them to criminal sanctions under COPA. As a result of this vagueness, Web publishers will be deterred from engaging in a wide range of constitutionally protected speech. The chilling effect caused by this vagueness offends the Constitution.

Ashcroft, 322 F.3d at 268 n. 37.

Clearly, that rationale applies to section 847.0138, and it constitutionally fails on that premise, if no other.

Commerce Clause

Finally, in my judgment section 847.0138 impermissibly burdens interstate commerce and is, accordingly, invalid.

The U.S. Supreme Court promulgated the standard for determining whether a state regulation violates the Commerce Clause:

If a legitimate local purpose is found, then the question becomes one of degree. And the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.

PSINet, Inc v. Chapman, 362 F.3d 227, 255 (4th Cir.2004) (Niemeyer, J., dissenting), quoting Pike v. Bruce Church, Inc., 397 U.S. 137, 142, 90 S.Ct. 844, 25 L.Ed.2d 174 (1970) (emphasis added).

In my judgment the impact of section 847.0138 on users of the Web would unreasonably burden interstate commerce. It would be impossible for out-of-state Web users to communicate about science, sex education, or medicine, and marital subjects with a married minor without fear of violation of section 847.0138. The only plausible alternative is for potential Web users to refrain from its use in such important areas. This is too severe a burden on the flow of expression in interstate commerce in view of the available alternatives that would lessen section 847.0138’s severe impact. Accordingly, in my judgment, section 847.0138 will unduly burden interstate commerce and is invalid. See Pataki, 969 F.Supp. at 160.

Conclusion

As always, when a statute is enacted for the protection of minors, one is hesitant to determine the effort to be unconstitutional. However, high motive does not equal constitutional compliance. The legislature in its drafting of section 847.0138 has produced an unbalanced proscription that violates too many constitutional guarantees. When content-protected speech is statutorily regulated, the question is not whether the statute is well-intended, consistent with a majority’s mores, or how a majority of citizens would ideally have all expression socially tailored, but the question is whether the statute is constitutional. Debate concerning the wisdom of this principle is not for this court’s participation. Our ancestors decided long ago that free people exercising expansive expression would shape this country’s destiny. Our U.S. Supreme Court stated this rationale in Reno, 521 U.S. at 844, 117 S.Ct. 2329, opining:

As a matter of constitutional'tradition, in the absence of evidence to the contrary, we presume that governmental regulation of the content of speech is more likely to interfere with the free exchange of ideas than to encourage it. The interest in encouraging freedom of expression in a democratic society outweighs any theoretical but unproven benefit of censorship.

In my judgment, section 847.0138, while well-intended, fails to comply with this constitutional concept and is tantamount to censorship. By this Court’s delaying that determination, I do not think the best interest of minors or the public is well-served.

For these reasons, I dissent from the majority opinion relating to section 847.0138. I would affirm Appellant’s conviction under section 847.0135 and reverse his conviction under section 847.0138 because such statute is facially unconstitutional for the reasons stated.

      . Appellant’s double jeopardy and subject matter jurisdiction arguments are not raised in this appeal.

      . Minors have First Amendment rights to use the Internet for speech purposes. See McConnell v. Fed. Election Comm’n, 540 U.S. 93, 124 S.Ct. 619, 639, 157 L.Ed.2d 491 (2003) (Rehnquist, C J.) (recognizing that minors enjoy the protection of the First Amendment, citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511-13, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969)). Thus, there are competing First Amendment interests at stake. These statutory restrictions protect the integrity of the Internet's accessibility for minors, enhancing their speech, but costs adults the ability to communicate harmful materials to minors. The United States Supreme Court, in McConnell, 124 S.Ct. at 655-58 & n. 40 (Stevens, J. and O'Connor, J.), recently ruled that strict scrutiny does not apply to legislation aimed at preventing corruption because it protects the integrity of the process, benefit-ting public participation in political debate. Similarly, strict scrutiny may not apply in the instant case because, by eliminating the potential chilling effects of unchecked harm directed to minors on the Internet, section 847.0138 protects the integrity of the Internet and minors' use of it as a medium for free speech, thereby guarding minors' free speech rights. Therefore, free speech is increased, not decreased, and the content-based restriction on free speech requiring strict scrutiny does not apply. If political speech, a core First Amendment right, may be restricted without applying strict scrutiny, then speech that is harmful to minors should be subject to restriction without strict scrutiny. See McConnell, 124 S.Ct. at 720 (Scalia, J. concurring and dissenting) (disagreeing with the majority opinion for allowing restrictions on speech criticizing the government while it has "sternly disapproved of restrictions” on virtual child pornography). However, we need not decide this issue because we conclude that section 847.0138 is constitutional even if strict scrutiny applies.

      . Contrary to the dissent, the State has not, in its briefs or oral argument, requested us to redefine the statute to “fix it” or conceded that the statute is not constitutional. Even had the State done so, we would ignore it as an erroneous concession. See Perry v. State,
        808 So.2d 268 (Fla. 1st DCA 2002) (ruling that erroneous concessions by the state should not be accepted). The dissent states that the "statute could, and should, be further limited to one-on-one e-mail communications rather than just to 'electronic mail.’ ” This definition is too narrow as illustrated by the facts of this case. The legislature properly contemplated that electronic mail sent by instant messaging, as sent by the appellant, would be used and should be prohibited in addition to e-mail transmissions sent and read at different times. Moreover, why would it be permissible to limit one [adult]-on-one [minor] harmful transmissions but not one [adult]-on-twenty-five [minors]? Obviously, harmful transmissions sent to more than one minor are not somehow more constitutional. The statute does not need redefinition as the appellant and dissent suggests.

      . There is no "heckler veto” as stated by the appellant and dissent because the statute only applies to communications specifically sent to known minors.

      . Likewise, the Child Online Protection Act, at issue in ACLU v. Ashcroft, 322 F.3d 240 (3rd Cir.2003), aff'd and remanded, — U.S. -, 124 S.Ct. 2783, 159 L.Ed.2d 690 (2004), does not have a provision similar to section 847.0138. Therefore, the case is not applicable and the recent ruling by the United States Supreme Court does not substantively affect the analysis in this case.

      . The United States Supreme Court's ruling did not address this issue.

      . The dissent's concern over minors' access to Michelangelo’s David and the like, and attempted distinction of Hayne, is a red herring because of the definition of “harmful to minors.” See § 847.001(6)(c) (defining harmful materials to include "taken as whole, is without serious literary, artistic, political, or scientific value for minors”).

      . These principles often overlap, and I will attempt to advance them in the same manner as used in the majority opinion for clarity.


author: PER CURIAM. BARFIELD, J.,

text:
    Jan WALKER, Appellant, v. Grace ERIS and Kay Howerton, Appellees. Danny Atkins, Appellant, v. Grace Eris, Jan Walker and Kay C. Howerton, Appellees.
    Nos. 1D02-0202, 1D02-3350.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.

      Charles F. Beall, Jr., Esquire of Moore, Hill & Westmoreland, P.A., Pensacola, for Appellants Jan Walker and Danny Atkins.
    R. John Westberry, Esquire of Holt and Westberry, P.L., Pensacola, for Appellees Grace Eris and Kay Howerton.
   PER CURIAM.

On this appeal from a judgment rescinding a deed, Jan Walker, the grantee of an undivided interest in real property, contends that the absence of the Internal Revenue Service as a party precluded rescission as a remedy for fraudulently inducing the conveyance to her. We reverse on that ground.

The general rule is that “ ‘a contract will not be rescinded even for fraud when it is not possible for the opposing party to be put back into his pre-agreement status quo condition.’ ” Turner v. Fitzsimmons, 673 So.2d 532, 535 (Fla. 1st DCA 1996) (quoting Royal v. Parado, 462 So.2d 849, 856 (Fla. 1st DCA 1985)). (In the present ease, the allegedly fraudulent inducement — not questioned here — was Ms. Walker’s failure to disclose that she owed back taxes and had other financial problems.) The proceedings to rescind the deed that granted Ms. Walker the undivided interest were instituted only after two liens — a mortgage Mr. Atkins filed, and a tax lien of which the Internal Revenue Service filed notice — had attached to her interest.

Inasmuch as the Internal Revenue Service had “ ‘properly filed notice of a tax lien before the proceedings commence[d], ... judgment as to the property [did] not [ ] disturb [the] tax lien.’ ” U.S. v. Capobianco, 836 F.2d 808, 815 (3d Cir.1988) (quoting S.Rep. No. 1708, 89th Cong., 2d Sess., reprinted in 1966 U.S.C.C.A.N. 3722, 3748-49). The judgment under review could not and did not restore the parties to the status quo ante, because the Internal Revenue Service was not made a party to the proceedings below.

“As this court has ruled ... ‘a condition precedent to the granting of the remedy of rescission is that the other party be returned to his status quo.’ ” Turner, 673 So.2d at 535 (quoting Parado, 462 So.2d at 856). This did not occur in the present case. “The prime object of rescission is ‘to undo the original transaction and restore the former status’ of the parties.” Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998) (quoting Willis v. Folder, 102 Fla. 35, 136 So. 358, 369 (1931)). This did not happen here.

While there were other respects, too, in which the parties’ transaction was not successfully unwound, we reverse on the narrow ground that the Internal Revenue Service was not made a party to the proceedings. See Antonelli v. Smith, 556 So.2d 1132, 1134 (Fla. 3d DCA 1989) (“As a practical matter, the Antonellis’ suit is intended to divest Treasure Cay of its rights.... In order for Treasure Cay to be bound by the adjudication, and in order for the Monroe County property records to properly reflect the state of the land title, Treasure Cay must necessarily be a party.”). Reversed and remanded.

BENTON and VAN NORTWICK, JJ., CONCUR; BARFIELD, J., Dissents with Opinion.

BARFIELD, J.,

dissenting.

I disagree with the majority that this case must be dismissed by the trial court because the Internal Revenue Service was not made a party. Although the United States has a lien for unpaid taxes, there is nothing in this judgment that divests the government of its lien. The appellees have not complained about the presence of the lien, and apparently they are willing to deal with the property in the condition received. The trial court placed the parties, as nearly as possible, in their original positions. Florando Investment Corp. v. Fried, 412 So.2d 14 (Fla. 2d DCA 1982).


author: PER CURIAM.

text:
    David Scott PUGH, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4810.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant’s claim that trial counsel was ineffective is not appropriate for review in this direct appeal.

AFFIRMED.

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


author: WOLF, C.J.

text:
    Mansovish MACK, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4713.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Nancy A. Daniels, Public Defender; Pamela Presnell Garvin, Assistant Public Defender, Tallahassee, for appellant.

      Charlie Crist, Attorney General; Elizabeth F. Duffy, Assistant Attorney General, Tallahassee, for appellee.
   WOLF, C.J.

In this direct criminal appeal, we reverse appellant’s designation as a prison releasee reoffender and an habitual felony offender, remand to the trial court to strike one of these designations, and to resentence the appellant. See Grant v. State, 770 So.2d 655, 659 (Fla.2000) (citing with approval Walls v. State, 765 So.2d 733 (Fla. 1st DCA 2000)); Lewis v. State, 819 So.2d 1009, 1010 (Fla. 1st DCA 2002). Appellant’s conviction is affirmed.

BENTON and VAN NORTWICK, JJ., CONCUR.


text:
    Evans DARLING, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2001.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a) in which he alleges that he was sentenced under the wrong statute and that his sentence is illegal because it exceeds the statutory maximum. We affirm the summary denial of Appellant’s first claim without comment. Because Appellant’s second claim has merit, we reverse and remand for further proceedings.

On March 3, 1997, pursuant to a plea agreement, Appellant was sentenced to a guidelines sentence of 10.5 years in prison followed by 20 years of probation for attempted first degree murder pursuant to section 782.04, Florida Statutes (1995). Appellant alleges that the combination of his incarcerative and supervisory portions of his sentence exceed the 30-year statutory maximum for attempted first degree murder, therefore, his sentence is illegal.

Attempted first degree murder may be punished by a term of imprisonment not to exceed 30 years. §§ 775.082(3)(a)(3)(b), 777.04(4)(b), 782.04(l)(a)(3), Fla. Stat. (1995). The combined periods of incarceration and probation of a probationary split sentence cannot, at the time of the original sentence, exceed the maximum period of incarceration provided by statute for the offense charged. See State v. Holmes, 360 So.2d 380, 383 (Fla.1978); Ward v. State, 558 So.2d 166 (Fla. 1st DCA 1990).

Here, when adding the 10.5 years of incarceration to the 20 years of probation, the 30.5-year sentence exceeds the 30-year statutory maximum for attempted first degree murder. Furthermore, Appellant cannot assent to an illegal sentence by entering into a negotiated plea agreement with the State. Taylor v. State, 778 So.2d 464, 465 (Fla. 1st DCA 2001). Because Appellant’s sentence fails to comport with statutory limitations and the illegality is revealed by the record without any need for an evidentiary determination, State v. Mancino, 714 So.2d 429 (Fla.1998), Appellant’s claim of an illegal sentence was improperly denied.

AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings.

BOOTH, VAN NORTWICK and PADOVANO, JJ., CONCUR.


text:
    Hugh Dorsey LOLLIS, by and through Mary B. SADLER, Personal Representative, Appellant, v. ADVENT CHRISTIAN VILLAGE, INC., et al., Appellee.
    No. 1D04-0100.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Susan B. Morrison and Joseph H. Ficar-rotta, of Wilkes & McHugh, P.A., Tampa, for Appellant.
    Melody M. Dietsch, of Ullman & Kurpi-ers, LLC, Tampa, for Appellee.
   BROWNING, J.

The Estate of Hugh Dorsey Lollis, by and through Mary B. Sadler, appeals a non-final order granting Appellee Advent Christian Village, Inc.’s, motion to compel arbitration. We have jurisdiction. See Fla. RApp. P. 9.030(b)(1)(B) & 9.130(a)(3)(C)(iv). We affirm the trial court’s finding that Appellee did not waive the right to arbitrate. However, we reverse the order compelling arbitration and instruct the trial court to hold a hearing as to whether a valid arbitration agreement exists and whether an arbitrable issue exists. See Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999).

REVERSING and' REMANDING with instructions.

ALLEN and VAN NORTWICK, JJ., CONCUR.


text:
    Barbara J. PEREZ, Appellant, v. FIRST STATE BANK OF THE FLORIDA KEYS and Florida Unemployment Appeals Commission, Appellees.
    No. 1D04-145.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Patrice P. DiLorenzo, Key West, for Appellant.
    John D. Maher of Florida Unemployment Appeals Commission, Tallahassee, for Florida Unemployment Appeals Commission.
   PER CURIAM.

Because competent and substantial evidence supports the referee’s conclusion that the appellant voluntarily left her job for good cause attributable to her employer, we REVERSE the Commission’s order. See Fillmore v. Unemployment Appeals Commission, 873 So.2d 1256 (Fla. 1st DCA 2004).

BOOTH, BARFIELD and ALLEN, JJ., CONCUR.


text:
    NORTH SHORE LABORATORIES CORPORATION, and Safety Tire Seal Corporation, Appellants, v. BRIDGESTONE/FIRESTONE NORTH AMERICA TIRE, L.L.C., successor to Bridgestone/Firestone, Inc., Bridgestone Corporation, Appellees.
    No. 1D04-0563.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    W. Cleveland Aeree, II, and Daniel A. Tressler, II, of Unger, Aeree, Weinstein, Marcus, Merrill, East & Metz, P.L., Orlando, for Appellants.
    Lee P. Teichner and Christopher N. Bellows, of Holland & Knight LLP, Miami, for Appellees.
   PER CURIAM.

Contrary to the implicit ruling of the trial court, the appellants, co-defendants with the appellees in a products liability suit arising out of a vehicle accident, were entitled to demonstrate the existence of a genuine dispute of material fact precluding the granting of final summary judgment to the appellees. U-Haul Co. of East Bay v. Meyer, 586 So.2d 1327 (Fla. 1st DCA 1991). The affidavit of the appellants’ expert witness demonstrated such a genuine dispute as to the causation of the tire failure which resulted in the vehicle accident. The final summary judgment for the appellees is therefore REVERSED, and the case is REMANDED to the trial court for further proceedings consistent with this opinion.

BOOTH, BARFIELD, and ALLEN, JJ., CONCUR.


text:
    Nancy G. POWELL, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 1D04-1797.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2004.
    Appellant, pro se.
    Louis A. Guitierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

We reverse the decision of the Unemployment Appeals Commission, which concluded that the claimant was disqualified from receiving benefits under sections 443.036(29) and 443.101(1)(a)2., Florida Statutes (2003). The record shows that the claimant’s conduct was a single incident of poor judgment, which justified the employer’s termination of the claimant, but did not amount to misconduct sufficient to deny the claimant benefits. See McCarty v. Fla. Unemployment Appeals Comm’n, 878 So.2d 432, 435 (Fla. 1st DCA 2004); Ford v. S.E. Atlantic Corp., 588 So.2d 1039, 1041 (Fla. 1st DCA 1991).

REVERSED.

KAHN, WEBSTER and POLSTON, JJ. CONCUR.


author: ALTENBERND, Chief Judge.

text:
    Lee Ronnie OGLETREE, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4856.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.

      James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Lee Ronnie Ogletree, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   ALTENBERND, Chief Judge.

Lee Ronnie Ogletree appeals an order revoking his community control and the sentences imposed as a result. We affirm the revocation of community control and sentences imposed thereon, but strike reference to the trial court’s finding that Mr. Ogletree violated condition twelve of his community control by being away from his approved residence without permission on July 1 and 2, 2003.

Mr. Ogletree was initially placed on probation for possession of cocaine and drug paraphernalia. He violated his probation by committing burglary and grand theft and was placed on community control for both sets of offenses. Thereafter, he was charged with three violations of community control because he tested positive for cocaine and because he was away from his approved residence on two separate occasions. There was competent, substantial evidence that Mr. Ogletree willfully violated the terms of his community control when he tested positive for cocaine and when he left his approved residence on July 13, 2003, without permission, to help his friend move furniture.

The claim that Mr. Ogletree was away from his approved residence without permission on July 1 and 2, 2003, however, is supported only by evidence that he checked himself into the Peace River Center after suffering a mental breakdown. There is nothing in the record to suggest that his admission to the center was anything other than a valid medical emergency. Under the circumstances, the evidence does not support a finding of a willful violation. See Robinson v. State, 744 So.2d 1188, 1189 (Fla. 2d DCA 1999); Williams v. State, 728 So.2d 287, 288 (Fla. 2d DCA 1999). Nevertheless, because we conclude that the other two violations were supported by competent, substantial evidence and supported the revocation of community control, we affirm the revocation and the sentences imposed. See Hay-good v. State, 687 So.2d 318 (Fla. 4th DCA 1997) (striking portion of order revoking community control because some violations were not supported by evidence, but affirming revocation because it was clear trial court would have revoked community control based solely on proper violations). Accordingly, we affirm the order revoking community control, but require the reference that Mr. Ogletree violated condition twelve on July 1 and 2, 2003, be stricken from the revocation order.

Affirmed with instructions.

SALCINES and CANADY, JJ., Concur.


author: SALCINES, Judge.

text:
    Walter Lee ATWELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3522.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.

      James Marion Moorman, Public Defender, and Mark C. Katzef, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Walter Lee Atwell was convicted of four counts of armed robbery and four counts of kidnapping. He received eight concurrent life sentences as a prison releasee reoffender. Atwell challenges one of the convictions for armed robbery. We affirm the judgments and sentences for three of the armed robbery convictions and the judgments and sentences for the four kidnapping convictions. We reverse the judgment and sentence for one conviction for armed robbery only.

Atwell and an accomplice entered a business establishment and held Janice, Wendy, Shirley, .and Kim at gunpoint. While three of the women sat in the back of the store, Atwell took Wendy to the front of the store to the cash register. Wendy complied with the orders to open the cash register and to remove the money. The men then took money from the purses of Janice, Wendy, and Shirley. Kim did not have a purse with her and no money or property was taken from her person.

On appeal Atwell argues that the trial court erred when it denied his motion for judgment of acquittal for the robbery of Kim because he did not take any money or property from her. The State asserts that because Kim was an employee of the business establishment the money in the cash register was in her custody; therefore, evidence that Atwell took the money from the cash register was sufficient to sustain the conviction for the robbery of Kim. We disagree.

In Pagan v. State, 830 So.2d 792, 803 (Fla.2002), the Florida Supreme Court summarized the standard of review on a motion for judgment of acquittal:

In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction which is supported by competent, substantial evidence. If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.

Id. at 803 (citations omitted). The statutory definition of robbery is set out in section 812.13(1), Florida Statutes (2001):

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

In the present case, there was a forceful taking from Janice, Wendy, and Shirley when their personal property was taken from their purses at gunpoint. There was also a forceful taking from Wendy as she was required to remove the contents of the cash register. However, the taking of Wendy’s personal items and the taking of the money from the cash register amounted to only one robbery of Wendy. See Butler v. State, 711 So.2d 1183, 1184 (Fla. 1st DCA 1998) (op. on reh’g); Horne v. State, 623 So.2d 777 (Fla. 1st DCA 1993); Morgan v. State, 407 So.2d 962 (Fla. 4th DCA 1981).

Caselaw dictates that Atwell could not be found guilty of taking money or other property from the person or custody of Kim when the money was removed from the cash register by Wendy and no property was taken from Kim. See Anderson v. State, 639 So.2d 192 (Fla. 4th DCA 1994). Because the evidence did not support the existence of the robbery element of taking money or property from Kim’s person or from her custody, the motion for judgment of acquittal as to this single count should have been granted. Kim was the victim of a kidnapping, but not of a robbery. Accordingly, the judgment and sentence for the robbery of Kim must be vacated.

Affirmed in part, reversed in part, and remanded for further proceedings.

WHATLEY and WALLACE, JJ., Concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Steven ERTEL, Appellee/Cross-Appellant.
    No. 2D03-2742.
    District Court of Appeal of Florida, Second District.
    Nov. 17, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appellant/Cross-Appellee.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appel-lee/Cross-Appellant.
   DAVIS, Judge.

Following a jury trial, Steven Ertel was convicted of sexual battery and was sentenced to three years in prison, which was a downward departure from the sentence required by the Criminal Punishment Code scoresheet. In this appeal, the State challenges the downward departure sentence, and on cross-appeal, Ertel challenges his conviction. We affirm Ertel’s sexual battery conviction and vacate the downward departure sentence.

The State argues that the trial court erred in imposing a . downward departure sentence because the reason given by the trial court to support the departure is not a valid ground for departure and, even if it were, there was no valid evidence to support it. We agree that there is insufficient evidence to support the downward departure sentence.

The sentencing scoresheet in this case established a sentencing range of 94.5 months up to 15 years. The trial court departed downward and sentenced Ertel to three years in prison. Although the court did not file written reasons for departure, it orally stated:

Well, having heard the testimony introduced at trial and comments of the victim afterwards and the comments of the State, it is my finding that the bottom of the guidelines would constitute an excessive sentence in this case. I find Mr. Ertel’s comments have indicated to me that he is having a problem accepting the inappropriateness of his actions and is having a hard time accepting the consequences for his own behavior and tries to put those off on someone else.
I will accept the cooperation that he gave, as outlined by Mr. Hope [defense counsel], as mitigating circumstances as a basis for the departure and that he serve three years with the Department of Corrections.

Defense counsel had argued for a downward departure based on Ertel’s cooperation, which he described as follows:

Based upon discovery, Mr. Ertel having provided the state law enforcement, when they arrived at his house that morning, an opportunity to search it without demanding a search warrant, having spoken to the police officers and having acknowledged having sex with Ms. Cane the previous night, he was in some degree cooperative.

While cooperation with law enforcement is a valid ground for a downward departure, Ertel’s action here in not requiring the officers to obtain a search warrant to search his home and in giving a statement to officers did not rise to the level of cooperation that is required in order to justify a downward departure sentence. In State v. Collins, 482 So.2d 388, 389 (Fla. 5th DCA 1985), the Fifth District observed that the record did not support departure on the basis of cooperation where the assistance did not result in solving any crimes. See also State v. Davis, 537 So.2d 192 (Fla. 2d DCA 1989) (stating that defendant’s cooperation was sufficient to support downward departure where defendant gave police information resulting in three arrests and solving numerous other crimes). Ertel’s actions, as described by his counsel, did not assist in solving any crime nor did it lead to the arrest of other persons.

In State v. Lacey, 553 So.2d 778, 779 (Fla. 4th DCA 1989), the Fourth District stated that a “plea or no appeal cannot be a valid reason for a downward departure anymore than a demand for trial or a filed appeal can be a valid reason for an upward departure.” See also State v. McGriff, 698 So.2d 331 (Fla. 2d DCA 1997); State v. Bell, 854 So.2d 686 (Fla. 5th DCA 2003), review denied, 866 So.2d 1212 (Fla.2004); State v. Quintanal, 791 So.2d 23 (Fla. 3d DCA 2001). Similarly, in this case, Ertel’s waiver of his procedural right to demand that officers obtain a search warrant prior to searching his home does not rise to the level of cooperation that will support a downward departure.

Having found that the facts did not support the reason that the court gave for the downward departure sentence, we vacate the downward departure sentence and remand for entry of a guidelines sentence.

On cross-appeal, Ertel argues that fundamental error occurred when Detective Farrell and Marquette Flaugher both testified that Flaugher collected physical evidence from sexual assault victims during SAVE (Sexual Assault Victim Examination) examinations. It is Ertel’s position that whether the victim was a sexual assault victim was a question of fact for the jury and that Flaugher’s testimony thus allegedly deprived the jury of making this determination.

Because defense counsel did not object to the testimony when it was offered, in order for any error in the testimony to be reversible, it must be fundamental. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003). This testimony did not present fundamental error, however, because it did not reach down to the validity of the sexual battery conviction. Nor did it create a due process violation. Id.

Even if the issue had been preserved for review, the witnesses’ reference to the SAVE exam as being one for sexual assault victims was not harmful given the fact that such an exam is routine for women who report having been sexually abused. This is a matter of common knowledge that the jurors, as members of society, may be deemed to understand. There is no reasonable possibility that this testimony affected the verdict. See Williams v. State, 863 So.2d 1189, 1190 (Fla.2003). Because any error here was not fundamental or harmful, Ertel’s conviction must be affirmed.

Affirmed in part; reversed in part.

SILBERMAN and CANADY, JJ., concur.