author: NORTHCUTT, Judge.

text:
    Erik C. NELSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Specialized Painting, Inc., Appellees.
    No. 2D03-5896.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2004.
    Erik C. Nelson, pro se.
    John D. Maher, Deputy General Counsel, Tallahassee, for Appellee Unemployment Appeals Commission.
    No appearance for Appellee Specialized Painting, Inc.
   NORTHCUTT, Judge.

Erik C. Nelson, pro se, appeals the order of the Unemployment Appeals Commission (UAC) dismissing his appeal of the referee’s decision as untimely. We reverse.

For more than a year, Nelson was employed as a project manager and estimator for a painting company. In 2003, Nelson applied for unemployment benefits, alleging that he was fired when he refused to sign a covenant not to compete. Nelson was initially awarded unemployment benefits, but his former employer appealed. The appeals referee found that Nelson voluntarily quit his job. Nelson argues that this finding is not supported by the evidence, but we do not have a transcript of the appeals hearing.

The referee’s decision was mailed on September 25, 2003. Nelson filed his appeal on October 31. In response to the UAC’s show cause order regarding the timeliness of the appeal, Nelson filed an affidavit stating:

After receipt of the referee’s decision I understood it to read, I became ineligible for benefits on 9-24-03 the time of the hearing. However on 10-17-03 I received a statement for overpayment of benefits. After receipt of that document, I then set out to reappeal causing my appeal to be filed late.

The UAC dismissed the appeal as untimely-

Nelson argues that he did not appeal the referee’s denial of benefits because he had found a new job. But he argues that he would have appealed if the referee’s order had clearly indicated that he would be required to repay the benefits he had already received. He further argues that he was prejudiced by the timing of the overpayment statement, coming as it did after the appeals period had run.

Section 443.151(4)(b)(4), Florida Statutes (2003), requires the filing of an appeal to the UAC within twenty days. “Florida courts have, however, carved out a due process exception to this statutory requirement.” Altimeaux v. Ocean Constr., Inc., 752 So.2d 670, 672 (Fla. 2d DCA 2000). In Assam v. Florida Unemployment Appeals Commission, 871 So.2d 978 (Fla. 3d DCA 2004), the Third District applied considerations of fairness and due process to allow an appeal under circumstances similar to these.

In that case, Andre Assam was initially granted unemployment benefits, but the decision was reversed when the appeals referee found that he was discharged for misconduct. The referee’s decision was mailed on November 26, 2002. On December 5, Assam was mailed an order to repay almost $4000 in benefits. Assam filed a notice of appeal that was untimely as to the referee’s decision but timely as to the repayment order. The Third District concluded that the staggered mailings created confusion as to the appeal deadline, and it reversed the UAC’s dismissal of Assam’s appeal. Applying considerations of fairness and due process and recognizing that the overpayment determination was inextricably intertwined with the decision denying benefits, the Third District held that on remand, Assam would be “free to raise any and all factual defenses to the underlying decision to contest the overpayment determination.” 871 So.2d at 981.

In this case, applying considerations of fairness and due process, we reverse and remand to permit Nelson to appeal the order of repayment and to raise the merits of his eligibility for unemployment benefits as a defense to repayment. See Gant v. Unemployment Appeals Comm’n, 743 So.2d 114 (Fla. 2d DCA 1999) (reversing overpayment determination and remanding for referee to consider whether claimant was eligible for benefits); see also Cornello v. Unemployment Appeals Comm’n, 624 So.2d 382 (Fla. 4th DCA 1993) (reversing dismissal of untimely appeal when claimant was misinformed about amount of weekly benefits and only informed of correct amount in final days of appeal period).

Reversed and remanded for further proceedings.

ALTENBERND, C.J., and KELLY, J., Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Frederick GLENN, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-1221.
    District Court of Appeal of Florida, Second District.
    Aug. 27, 2004.
    Frederick Glenn, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampá, for Ap-pellee.
   PER CURIAM.

Affirmed without prejudice to any right Frederick Glenn may have to file a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850.

CASANUEVA, STRINGER, and VILLANTI, JJ., Concur.


text:
    Julio Enrique ROLON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-3371.
    District Court of Appeal of Florida, Fifth District.
    Aug. 27, 2004.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

The State concedes that the appellant, Julio Rolon, should have been resentenced under Heggs for attempted second degree murder as a level 8 offense; rather than as a level 10 offense. Accordingly, we reverse and remand for resentencing.

REVERSED and REMANDED.

THOMPSON, PLEUS and MONACO, JJ., concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000),


author: WEBSTER, J.

text:
    Robert ROELING, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1658.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.

      Nancy A. Daniels, Public Defender; M. Lilja Dandelake, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review following the entry of a “Final Order of Adjudication and Order of Commitment” adjudging him to be a “sexually violent predator” within the meaning of section 394.912(10), Florida Statutes (2002) (a part of what is commonly referred to as the “Jimmy Ryee Act”), and committing him to the custody of the Department of Children and Family Services for control, care and treatment in a secure facility pursuant to section 394.917(2), Florida Statutes (2002). He argues that the trial court should have (1) excluded expert opinion testimony regarding his propensity to commit acts of sexual violence in the future which was based in part on use of risk-assessment instruments because those “instruments have not gained general acceptance among psychiatrists, psychologists, and other mental health professionals and their use is limited to only a few psychologists who are attempting to predict sexual offense recidivism”; and (2) granted his motion for directed verdict because the state failed to carry its burden of proof on the element of lack of volitional control. We affirm as to the second argument without further discussion because it is clear that the argument was not preserved and, even if preserved, the evidence was more than sufficient to permit the jury to find as it did on the element of lack of volitional control. We also affirm as to the first argument because we conclude that the use of risk-assessment instruments in this case satisfied the requirements of Frye v. United States, 293 F. 1013 (D.C.Cir.1923).

I.

The state filed a petition to have appellant declared a “sexually violent predator” as that term is defined in section 394.912(10), Florida Statutes. Appellant responded with a “Motion To Exclude Testimony Regarding Risk Prediction,” raising a Frye challenge to anticipated expert psychological opinion testimony regarding future dangerousness and risk prediction based in part on actuarial instruments such as the Rapid Risk Assessment for Sexual Offense Recidivism (RRASOR), the Static-99 (developed from the RRASOR), the Violence Risk Appraisal Guide (VRAG), the Sex Offender Risk Appraisal Guide (SORAG), the Minnesota Sex Offender Screening Tool-Revised (MnSOST-R) and the Sexual Violent Risk-20 (SVR-20). Appellant’s motion was consolidated with those of 32 others for purposes of the Frye hearing.

At the Frye hearing, the parties presented the live testimony of two expert witnesses regarding the use of risk-assessment instruments as a tool in arriving at opinions as to an individuars propensity to commit acts of sexual violence in the future. The depositions of four additional experts were also received in evidence, all without objection. The testimony established that risk-assessment instruments are based on empirically derived actuarial data, resulting from years of research, that identify characteristics and the likelihood that one will reoffend based on the presence or absence of such characteristics. The trial court subsequently entered an order denying the motions seeking to exclude the expert testimony. In its order, the trial court said:

Based on the testimony received in evidence, this Court finds that the [state] has sufficiently established that the actuarial instruments used in Respondents’ evaluations, as part of the assessment of their risk of recidivism, are supported by a clear majority of the members of the relevant scientific community, and are based on scientific principles that are sufficiently established to have gained general acceptance in the relevant field.... Furthermore, this Court finds that the testimony concerning the use of the actuarial instruments in Respondents’ assessments will assist the jury in understanding the evidence before it.

During appellant’s ensuing jury trial, four psychologists testified. All were of the opinion that appellant was highly likely to reoffend. Three of the four testified that they had used one or more commonly used risk-assessment instruments as one tool in arriving at their opinions. The risk assessments used included RRASOR, Static-99 and MnSOST-R. The jury unanimously found that appellant met the criteria for involuntary commitment pursuant to the Jimmy Ryce Act, and the trial court entered its order of adjudication and commitment. This appeal follows.

II.

Initially, the state argues that use of risk-assessment instruments as a tool in arriving at opinions as to an individual’s propensity to commit acts of sexual violence in the future need not pass the Frye test because it is in the nature of the “pure opinion testimony” which our supreme court has recognized need not pass the Frye test, citing Flanagan v. State, 625 So.2d 827 (Fla.1993), and Hadden v. State, 690 So.2d 573 (Fla.1997). The state also points out that a number of other jurisdictions that have considered this question have concluded that this type of testimony is not “novel scientific evidence” and, therefore, Frye testing is unnecessary. See, e.g., In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708 (2003); State v. Fields, 201 Ariz. 321, 35 P.3d 82 (Ct.App. 2001); Garcetti v. Superior Court, 102 Cal.Rptr.2d 214 (Ct.App.2000), rev’d on other grounds sub nom. Cooley v. Superior Court, 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654 (2003); In re Commitment of Stevens, 345 Ill.App.3d 1050, 281 Ill.Dec. 415, 803 N.E.2d 1036 (2004); In re Detention of Holtz, 653 N.W.2d 613 (Iowa Ct. App.2002); Commonwealth v. Dengler, 843 A.2d 1241 (Pa.Super.Ct.2004). We are unable to agree with this argument.

In, the first place, the state did not make this argument in the trial court. Moreover, it seems to us that the use of risk-assessment instruments is more akin to the use of “sexual offender profiles” at issue in Flanagan and the use of the “child sexual abuse accommodation syndrome” at issue in Hadden than to “pure opinion testimony,” as that term was used in those two cases. In Flanagan, the court held that .expert opinion testimony based in part on “sexual offender profiles” must meet the Frye test (625 So.2d at 828); and in Hadden, the court reached the same conclusion regarding expert opinion testimony based in part on the “child sexual abuse accommodation syndrome.” 690 So.2d at 574-75. Accordingly, based on Flanagan and Hadden, we conclude that expert opinion testimony regarding an individual’s propensity to commit acts of sexual violence in the future that is based in part on the use of risk-assessment instruments must pass the Frye test. We note that two other Florida district courts of appeal appear to have reached a similar conclusion, although-neither discusses the issue. See Lee v. State, 854 So.2d 709 (Fla. 2d DCA) (concluding that the trial court did not err in admitting the testimony, after conducting a Frye hearing; and that, even if it did, any error was harmless), review pending, Case No. SC03-1608 (Fla. filed Sept. 8, 2003); Collier v. State, 857 So.2d 943 (Fla. 4th DCA 2003) (concluding that the state’s evidence was insufficient to satisfy Frye). The same conclusion has also been reached by courts in New Jersey and Illinois. See In the Matter of the Commitment of R.S., 173 N.J. 134, 801 A.2d 219 (2002); In re Commitment of Lourash, 347 Ill.App.3d 680, 283 Ill.Dec. 428, 807 N.E.2d 1269 (2004).

III.

“[NJovel scientific evidence is not admissible in Florida unless it meets the test established in Frye v. United States, 293 F. 1013(D.C.Cir.1923),” which requires that such evidence “ ‘be sufficiently established to have gained general acceptance in the particular field in which it belongs.’ ” Flanagan, 625 So.2d at 828 (quoting Frye, 293 F. at 1014). Accord Hadden, 690 So.2d at 577-78; Ramirez v. State, 651 So.2d 1164, 1167 (Fla.1995) {Ramirez II). Among other things, “[t]his standard requires a determination ... that the basic underlying principles of scientific evidence have been sufficiently tested and accepted by the relevant scientific community.” Brim v. State, 695 So.2d 268, 272 (Fla.1997). As our supreme court has explained:

The underlying theory for this rule is that a courtroom is not a laboratory, and as such it is not the place to conduct scientific experiments. If the scientific community considers a procedure or process unreliable for its own purposes, then the procedure must be considered less reliable for courtroom use.

Stokes v. State, 548 So.2d 188, 193-94 (Fla.1989). In other words, the Frye test is “designed to ensure that the jury will not be misled by experimental scientific methods which may ultimately prove to be unsound.” Flanagan, 625 So.2d at 828 (citing Stokes).

When applying the Frye test, “the burden is on the proponent of the evidence to prove [by the greater weight of the evidence] the general acceptance of both the underlying scientific principle and the testing procedures used to apply that principle to the facts of the case at hand.” Ramirez II, 651 So.2d at 1168. This requires more than “[a] bald assertion by the expert that his deduction is premised upon well-recognized scientific principles,” particularly “if the witness’s application of these principles is untested and lacks indi-cia of acceptability,” or “if the expert has a personal stake in the new theory or is prone to an institutional bias.” Ramirez v. State, 810 So.2d 836, 844, 844 n. 13 (Fla.2001) (Ramirez III). As our supreme court has explained, “general scientific rec ognition requires the testimony of impartial experts or scientists. It is this independent and impartial proof of general scientific acceptability that provides the necessary Frye foundation.” Id. at 851.

Our standard of review when considering a trial court’s ruling on a Frye issue is de novo, rather than abuse of discretion. Murray v. State, 838 So.2d 1073, 1077-78 (Fla.2002); Ramirez III, 810 So.2d at 844; Brim, 695 So.2d at 274. Moreover, we must address the matter of general acceptance as of the time of appeal, rather than the time of trial. Ramirez III, 810 So.2d at 844-45 (citing Hadden, 690 So.2d at 579). In reaching our decision regarding general acceptance, we “may examine expert testimony, scientific and legal writings, and judicial opinions.” Hadden, 690 So.2d at 579 (citing Flanagan, 625 So.2d at 828).

rv.

The testimony presented to the trial court provides substantial support for the proposition that the risk-assessment instruments used by the experts who testified regarding appellant’s propensity to reoffend are a generally accepted diagnostic tool in the relevant scientific community (licensed clinical psychologists specializing in forensic psychology and the evaluation of sexually violent predators), and. are based on scientific principles that are sufficiently established to have gained general acceptance in the relevant field. All of the experts except the one offered by appellant testified that they use such instruments on a regular basis; that they are generally accepted among forensic clinical psychologists who evaluate persons alleged to be sexually violent predators, provided they are used in conjunction with a clinical assessment (as those testifying in appellant’s case did); and that the use of risk-assessment instruments in conjunction with a clinical assessment was a superior method of evaluating an individual to reliance on a clinical assessment alone. Even appellant’s expert conceded that such instruments were being used “with great frequency by people doing these' evaluations”; and that an evaluation based on only a clinical assessment would at best be equal to (but no better than) a pure actuarial approach.

The opinions relied upon by the trial court are, moreover, consistent with conclusions reached by a number of other psychologists, including those who have developed the actuarial tools and conducted cross-validation and meta-analyses to confirm their reliability. See, e.g., Judith V. Becker & Wm. D. Murphy, What We Know and Do Not Know About Assessing and Treating Sex Offenders, 4 Psychol., Pub. Pol’y & L. 116 (1998); Douglas L. Epperson et al., Cross-Validation of the Minnesota Sex Offender Screening Tool-Revised, ATSA Presentation, San Diego, CA (Nov. 3, 2000); Martin Grann et al., Actuarial Assessment of Risk for Violence: Predictive Validity of the VRAO and the Historical Part of the HGR-20, 27 Crim. Just. & Behavior 97 (2000); Wm. M. Grove & Paul E. Meehl, Comparative Efficiency of Informal (Subjective, Impressionistic) and Formal (Mechanical, Algorithmic) Prediction Procedures: The ClinicaNSta-tistical Controversy, 2 Psychol., Pub. Pol’y & L. 293 (1996); R. Karl Hanson, What Do We Know About Sex Offender Risk Assessment?, 4 Psychol., Pub. Pol’y & L. 50 (1998); R. Karl Hanson & David Thornton, Improving Risk Assessments for Sex Offenders: A Comparison of Three Actuarial Scales, 24 L. & Human Behavior 119 (2000); R. Karl Hanson & Monique T. Bussiere, Predicting Relapse: A Meta-Analysis of Sexual Offender Recidivism Studies, 66 J. of Consulting & Clinical Psychol. 348 (1998); R.' Karl Hanson & Andrew J.R. Harris, Where Should We Intervene?: Dynamic Predictors of Sexual Offense Recidivism, 27 Crim. Just. & Behavior 6 (2000); Robert D. Hare et al., Psychopathy and the Predictive Validity of the PCL-R: An International Perspective, 18 Behavioral Sci. & L. 623 (2000); Grant T. Harris et al., Appraisal and Management of Risk in Sexual Aggressors: Implications for Criminal Justice Policy, 4 Psychol., Pub. Pol’y & L. 73 (1998); Marnie E. Rice & Grant T. Harris, Cross-Validation and Extension of the Violence Risk Appraisal Guide for Child Molesters and Rapists, 21 L. & Human Behavior 231 (1997).

Finally, courts in Florida and other jurisdictions have also considered the admissibility of expert opinion testimony regarding propensity to commit acts of sexual violence in the future which is based in part on use of risk-assessment instruments. Not one court has held such testimony inadmissible as a matter of law. Rather, the debate has been, over whether the testimony must pass the Frye test. See, e.g., In the Matter of the Commitment of R.S., 173 N.J. 134, 801 A.2d 219, 220 (2002) (“a testifying psychologist or psychiatrist may refer to actuarial risk assessment instruments used in the formation of the expert’s opinion” because such instruments have gained sufficient acceptance to satisfy Frye); In re Detention of Thorell, 149 Wash.2d 724, 72 P.3d 708, 724-25 (2003) (such testimony is not subject to the Frye test because it does not involve “novel scientific evidence”); State v. Fields, 201 Ariz. 321, 35 P.3d 82, 89 (Ct.App.2001) (“the use of actuarial models by mental health experts to help predict a person’s likelihood of recidivism is not the kind of novel scientific evidence or process to which Frye applies”); Garcetti v. Superior Court, 102 Cal.Rptr.2d 214, 238 (Ct.App. 2000) (“a psychiatrist’s prediction of future dangerousness is not subject to a [.People v.] Kelly [17 Cal.3d 24, 130 Cal.Rptr. 144, 549 P.2d 1240 (1976)]-Frye analysis and ... it does not matter if the psychiatrist used clinical or actuarial models”), rev’d on other grounds sub nom. Cooley v. Superi- or Court, 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654 (Cal.2003); Lee v. State, 854 So.2d 709, 712 (Fla. 2d DCA) (testimony based in part on RRASOR, MnSOST-R, VRAG and SORAG was properly admitted because the state’s evidence satisfied the Frye test; even if permitting the testimony was error, it was harmless), review pending, Case No. SC03-1608 (Fla. filed Sept. 8, 2003); Collier v. State, 857 So.2d 943, 945-46 (Fla. 4th DCA 2003) (testimony based in part on SVR-20 must pass the Frye test; testimony should not have been admitted because the state’s evidence did not satisfy Frye); In re Commitment of Stevens, 345 Ill.App.3d 1050, 281 Ill.Dec. 415, 803 N.E.2d 1036, 1044 (2004) (“actuarial risk-assessment instruments of the sort used in this case — namely, the Minnesota Screening Tool-Revised, the Static-99, and the Violence Risk Assessment Guide — do not purport to involve a scientific principle, method, or test to which Frye applies”); In re Commitment of Lourash, 347 Ill. App.3d 680, 283 Ill.Dec. 428, 807 N.E.2d 1269, 1274-75 (2004) (respondent was entitled to a Frye hearing where he could contest the admissibility of the evidence based on actuarial instruments used to measure his risk of recidivism, including the MnSOST-R and the Static-99); In re Detention of Holtz, 653 N.W.2d 613, 619 (Iowa Ct.App.2002) (“the district court ably summed up the issues and was correct in determining the evidence concerning actuarial risk assessment instruments went to the weight the evidence should receive as opposed to the issue of admissibility”); Commonwealth v. Dengler, 843 A.2d 1241, 1245 (Pa.Super.Ct.2004) (such testimony is not subject to the Frye test because it does not involve “novel scientific evidence”).

Having carefully considered the testimony presented to the trial court, scientific and legal writings and judicial opinions, we conclude that the state has carried its burden to demonstrate by the greater weight of the evidence that expert opinion testimony regarding propensity to commit acts of sexual violence in the future which is based in part on use of the RRASOR, Static-99 and MnSOST-R risk-assessment instruments satisfies the Frye test. Accordingly, we conclude, further, that the trial court correctly denied appellant’s “Motion to Exclude Testimony Regarding Risk Prediction” and permitted the state’s experts to testify regarding appellant’s propensity to commit acts of sexual violence in the future.

V.

For the reasons expressed in this opinion, the trial court’s order denying appellant’s “Motion to Exclude Testimony Regarding Risk Prediction” and its “Final Order of Adjudication and Order of Commitment” are affirmed.

AFFIRMED.

KAHN and BROWNING, JJ., concur.


text:
    Cornell JACKSON, Appellant, v. STATE of Florida, Appellee.
    Nos. 1D03-2205, 1D03-4086.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Nancy A. Daniels, Public Defender; Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In these two consolidated eases, which we previously consolidated for record purposes and are now consolidating' for purposes of this opinion, appellant, Cornell Jackson, contends that the trial court erred in failing to hold a competency hearing prior to adjudicating him competent to proceed when he had previously been adjudicated incompetent to proceed on four separate occasions. We agree and, therefore, reverse appellant’s convictions and remand.

Although the State argues that the trial court had no obligation to conduct an adversarial hearing before proceeding to trial, Florida Rule of Criminal Procedure 3.212(c)(6) mandates that a court hold a hearing within thirty days of its receipt of a status report from the administrator of the facility in which a defendant is being treated or a report from the administrator stating that a defendant no longer meets the criteria for commitment or has become competent to proceed. As the Fourth District has explained, rule 3.212 sets forth the required competency hearing procedures for determining whether a defendant previously adjudicated incompetent has been restored to competence. See Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003) (citing Mora v. State, 814 So.2d 322, 333 (Fla.2002)). Such procedures include “the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.” Samson, 853 So.2d at 1117. An individual who has been adjudicated incompetent is presumed to remain incompetent until adjudicated competent to proceed by a court. Id. at 1116; see also Holland v. State, 634 So.2d 813, 815 (Fla. 1st DCA 1994) (“ ‘A judicial determination of incompetence remains valid until there is a subsequent judicial determination that the [adjudged incompetent] is competent to proceed.’ ”) (quoting Downing v. State, 617 So.2d 864, 866 (Fla. 1st DCA 1993)). A defendant’s legal status cannot be adjudicated from incompetent to competent without the benefit of a hearing. Samson, 853 So.2d at 1117 (citing Alexander v. State, 380 So.2d 1188, 1190 (Fla. 5th DCA 1980)).

In Metzgar v. State, 741 So.2d 1181, 1182 (Fla. 2d DCA 1999), the trial court entered three orders finding that the appellant was incompetent prior to the violation of probation hearing. Following the entry of the three orders but before the probation hearing, the court appointed doctors to examine the appellant to determine competence. Id. During the probation hearing, the court heard evidence as to the violation and found the appellant guilty. Id. The court then addressed the issue of the appellant’s competence. Id. The court reviewed the reports of three doctors, two of whom found that the appellant was competent and one of whom found that the appellant was incompetent. Id. In reversing the orders adjudicating the appellant guilty and remanding for a competency hearing and a new trial if the appellant was deemed competent, the Second District noted that the record was devoid of any evidence that the appellant was given notice that the trial court would make a finding regarding his competency during the probation hearing. Id. at 1182-83. The court concluded that the trial court should have conducted “a full hearing” to determine the appellant’s competence and that the appellant should have been given notice of that hearing. Id. at 1183. The court also noted that, although the supreme court has held that, where the parties and the trial court agree, the court may decide the issue of competency on the basis of the written reports, there was no such agreement in the case. Id.; see also Sledge v. State, 871 So.2d 1020, 1021 (Fla. 5th DCA 2004) (reversing for a competency hearing because the trial ■ court, upon receipt of the Department of Children and Families’ clinical evaluation stating that the appellant was competent to testify, simply set a date for trial and did not conduct a “formal hearing” to determine whether the appellant was, in fact, competent to proceed); Johnson v. State, 855 So.2d 218, 219 (Fla. 5th DCA 2003) (holding that the trial court erred in proceeding to sentence the appellant before having adjudged him competent to proceed and noting that the record revealed that the court failed to hold a competency hearing, failed to adjudicate the appellant competent after his having been deemed incompetent, and that the appellant’s legal status at the time of sentencing was still one of incompetence); Samson, 853 So.2d at 1117 (holding that the trial court failed to conduct the required hearing to determine whether the appellant had been restored to competence and noting that, because the court did not take the testimony of any of the examining physicians and did not enter a written order stating that the appellant had been restored to competence, the appellant remained incompetent and could not enter valid pleas); Jackson v. State, 810 So.2d 545, 547 (Fla. 4th DCA 2002) (holding that the trial court violated the appellant’s due process rights when it failed to find that he was competent to stand trial, noting that there was no indication that the court held a competency hearing prior to proceeding to trial, and reversing for a new trial provided the court deemed the appellant competent after holding a competency hearing); Holland, 634 So.2d at 815-16 (noting that there was no evidence in the record of the trial court holding a competency hearing for th.e appellant who had previously been declared incompetent, reversing the appellant’s convictions, and remanding for a proper competency hearing and new trial); Parks v. State, 290 So.2d 562, 563-64 (Fla. 4th DCA 1974) (holding that the legal status of the appellant could not be adjudicated from incompetent to competent without a hearing and noting that the court, without holding a competency hearing, deemed the appellant to be competent based upon the receipt of an ex parte letter from a doctor at the Florida State Hospital and brought the appellant to trial).

Although the trial court orally declared appellant competent to proceed based upon certain medical reports, it failed to conduct a proper hearing. The record is devoid of any evidence that the parties agreed to such a procedure. Therefore, because a defendant cannot be adjudicated from incompetent to compe-r tent without a competency hearing where he or she has the opportunity to call the court-appointed witnesses, see, e.g., Samson, 853 So.2d at 1116, the court’s oral declaration was invalid. Thus, appellant remained incompetent when brought to trial. As a result, appellant’s right to due process was violated. See State v. Tait, 387 So.2d 338, 341 (Fla.1980) (“[T]he failure to observe procedures adequate to protect a defendant’s right not to be tried or convicted while incompetent to stand trial deprives him of his due process right to a fair trial.”) (quoting Drope v. Missouri, 420 U.S. 162, 172, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975)); Jackson, 810 So.2d at 547. Because the deprivation of the right to due process constitute^ fundamental error, a harmless error review is not appropriate. See Nagel v. State, 758 So.2d 1206, 1207 (Fla. 4th DCA 2000); see also F.B. v. State, 852 So.2d 226, 227 (Fla.2003) (holding that fundamental error may be raised for the first time on appeal); Tait, 387 So.2d at 341 (finding that the State’s suggestion that the absence of a request for a competency hearing constituted a waiver was erroneous); Metzgar, 741 So.2d at 1183 (“ ‘A defendant who is presumptively incompetent is not sui juris until so declared by the court, so he cannot waive a competency hearing.’ ”) (quoting Alexander, 380 So.2d at 1190); Holland, 634 So.2d at 815 (holding that the appellant’s failure to request a competency hearing did not constitute a waiver of the court’s duty to hold a hearing). Accordingly, we reverse appellant’s convictions and remand for new trials, provided that the court holds a competency hearing and finds that appellant is competent to proceed. See Holland, 634 So.2d at 815 (reversing the appellant’s convictions and remanding for a new trial contingent upon a finding of competence because, as a result of the court’s failure to conduct a competency hearing prior to trial, the appellant, who had previously been declared incompetent, remained so throughout the trial). Given our disposition with respect to this issue, it is unnecessary to reach appellant’s other point raised on appeal.

REVERSED and REMANDED.

DAVIS, LEWIS and POLSTON, JJ., concur.

      . Notably, the Second District rejected the argument that the competency determination was rendered invalid because it was made after the probation hearing. See id. at 1183 n. 1.

      . Appellant stood trial twice after the counts against him were severed.


author: LEWIS, J. WOLF, C.J., KAHN, J.,

text:
    James W. BRUNER, Appellant, v. GC-GW, INC., d/b/a Jackson-Cook, Appellee.
    No. 1D03-3775.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.

      Scott T. Manion; Vernon T. Grizzard; Albert Thorburn, Tallahassee; Mark L. Zientz, of the Law Office of Mark L. Zientz, P.A., for Florida Worker’s Advocates, Miami; Richard E. Johnson, for National Employment Lawyers Association, Florida Chapter, Tallahassee, for Appellant.
    Michael C. Rayboun, of Whibbs & Whibbs, P.A., Pensacola; Mary Ann Stiles, of Stiles, Taylor & Grace, P.A., for Associated Industries of Florida, Inc., Atlanta, for Appellee.
   LEWIS, J.

Appellant, James W. Bruner, seeks review of the trial court’s Final Summary Judgment in which the court found that section 440.205, Florida Statutes, does not provide for a civil cause of action for an employee who is discharged by his or her employer for having filed a workers’ compensation claim against a previous employer. Appellant first argues that the plain language of section 440.205 provides for such a cause of action. In his second argument, appellant argues that, if section 440.205 is ambiguous with respect to the issue on appeal, legislative intent and public policy support such a cause of action. Concluding that section 440.205 provides for a civil cause of action when an employer discharges an employee for having filed a workers’ compensation claim against a previous employer, we reverse the Final Summary Judgment and remand for further proceedings.

As set forth in the trial court’s Final Summary Judgment, appellant sustained a compensable workers’ compensation injury while employed with Ceco Corporation, his previous employer. Appellant subsequently became employed with appellee, GC-GW, Inc., d/b/a Jackson-Cook. However, shortly after hiring appellant, appellee discharged him because he was a “W/C Risk” due to his having filed a workers’ compensation- claim against Ceco Corporation. Appellant -subsequently filed suit against appellee pursuant to section 440.205, Florida Statutes, alleging that appellee wrongfully discharged him based upon his previous workers’ compensation claim. After filing its answer, appellee filed a motion for final summary judgment, asserting that section 440.205 does not provide for such a cause of action. In its Final Summary Judgment, the trial court agreed with ap-pellee that appellant had no right of action against appellee pursuant to section 440.205. In noting that this is a case of first impression in Florida, the trial court found that appellee, as the subsequent employer, had done nothing to hinder, thwart, or prohibit appellant from obtaining benefits flowing from his previous compensable injury. According to the court, appellant’s interpretation of section 440.205 belied the historical and primary purpose of chapter 440, Florida Statutes, and its effort to insure that employers and carriers comply with their responsibility to provide compensation to workers injured on the job. The court granted appellee’s motion for final summary judgment, finding that there was no legislative evidence or case authority to support appellant’s expansive interpretation. Appellant subsequently moved for rehearing as to the Final Summary Judgment and provided the trial court with five cases from foreign jurisdictions that addressed the issue at hand. In its Order on Rehearing, the court found that none of the cases were binding precedent and that an important public policy would be advanced by a ruling for either party. In noting that it was constrained from recognizing or creating a new cause of action, the court denied appellant’s motion for rehearing. This appeal followed.

Pursuant to section 440.205, Florida Statutes (2000), “No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.” The supreme court has held that this statute, which the Legislature enacted in 1979, “creates a statutory cause of action for a wrongful discharge in retaliation for an employee’s pursuit of a workers’ compensation claim....” Smith v. Piezo Tech. & Prof'l Adm’rs, 427 So.2d 182, 183 (Fla.1983). According to the court, “because the legislature enacted a statute that clearly imposes a duty and because the intent of the section is to preclude retaliatory discharge, the statute confers by implication every particular power necessary to insure the performance of that duty.” Id. at 184; see also Scott v. Otis Elevator Co., 572 So.2d 902, 903 (Fla.1990) (holding that an employer who violates section 440.205 commits an intentional tort, thereby exposing itself to liability for damages for emotional distress because “[sjection 440.205 reflects the public policy that an employee shall not be discharged for filing or threatening to file a workers’ compensation claim”).

It is well established that the construction of a statute is a question of law reviewable de novo. Dixon v. City of Jacksonville, 774 So.2d 763, 765 (Fla. 1st DCA 2000). Legislative intent is the polestar that guides this Court’s statutory con struction analysis. See State v. J.M., 824 So.2d 105, 110 (Fla.2002) (citation omitted). In construing a statute, this Court must look to the statute’s- plain language. See Fla. Dep’t of Educ. v. Cooper, 858 So.2d 394, 395 (Fla. 1st DCA 2003); Jackson County Hosp. Corp. v. Aldrich, 835 So.2d 318, 328-29 (Fla. 1st DCA 2002); see also State v. Rife, 789 So.2d 288, 292 (Fla.2001) (noting that legislative intent is determined primarily from the language of a statute). Where the language of a statute is clear and unambiguous, it must be given its plain and ordinary meaning. Cooper, 858 So.2d at 395 (citations omitted). Where a statute is ambiguous, courts may then resort to the rules of statutory construction. BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 289 (Fla.2003). A statute that is in derogation of the common law must be construed narrowly. Superior Brands, Inc. v. Rogers, 646 So.2d 257, 258 (Fla. 1st DCA 1994). However, remedial statutes should be liberally construed in favor of granting access to the remedy provided by the Legislature. Golf Channel v. Jenkins, 752 So.2d 561, 565-66 (Fla. 2000) (holding that any ambiguities in paragraph 448.103(l)(c), a section of the Whistleblowers Act which was remedial in nature, should be liberally construed in favor of granting access to the remedy provided by the Legislature); see also Broward v. Jacksonville Med. Ctr., 690 So.2d 589, 591 (Fla.1997) (“Florida’s workers’ compensation laws are remedial in nature.... ”).

Appellee would have us construe section 440.205 as providing for a civil cause of action only as to an employer against whom a workers’ compensation claim is filed. However, to read the statute in such a way, especially given the language, “no employer,” would be to add restrictive language to the statute, which is something that we are not at liberty to do. See Hayes v. State, 750 So.2d 1, 4 (Flá. 1999) (“We are not at liberty to add words to statutes that were not placed there by the Legislature.”). We, therefore, conclude that section 440.205, which is clear and unambiguous, provides for a civil cause of action against an employer who discharges an employee for having filed a workers’ compensation claim against a previous employer.

We note, however, that even if we were to find section 440.205 ambiguous with respect to the issue at hand, legislative intent and public policy would still lead us to the same result. In support of its argument that the intent of chapter 440 supports its interpretation of section 440.205, appellee contends that section 440.105(2)(a)2., Florida Statutes (2000), reveals the limitations of section 440.205. Section 440.105(2)(a)2., which the Legislature enacted in 1993, declares it unlawful for an employer to- knowingly “[discharge or refuse to hire an employee or job applicant because the employee or applicant has filed a claim for benefits under this chapter.” As appellee contends, the language “refusal to hire” clearly anticipates a claim filed against a previous employer. According to appellee, the Legislature’s choice of language in ' section 440.105(2)(a)2.. indicates that the Legislature knows how to deal with employers who discharge an employee for having filed a past claim or employers who refuse to hire a job applicant for having filed a past claim. Appellee concludes then that, because the Legislature did not amend section 440.205 at the time it enacted section 440.105(2)(a)2., the Legislature did not intend for there to be a civil cause of action against an employer who discharges an employee for having filed a workers’ compensation claim against a previous employer. We do not find appellee’s argur ment persuasive.

Had this case presented the issue of whether a civil cause of action exists against an employer who refuses to hire a job applicant for having filed a workers’ compensation claim against a previous employer, appellee’s argument would have merit. However, that is not the issue presented here. Furthermore, simply • because the Legislature did not provide for a civil cause of action for refusal to hire in this context does not mean that the Legislature did not intend for there to be a civil cause of action against an employer who discharges an employee for having filed a past workers’ compensation claim.

We find that section 440.205 is not only intended to punish employers who discharge an employee for having filed a workers’ compensation claim but is also intended to insure that employees do not have to fear reprisal from their employers when they file a workers’ compensation claim. Interpreting section 440.205 as ap-pellee would have us do would have a chilling effect on an employee’s decision to file a meritorious workers’ compensation claim for fear of being discharged from a subsequent position merely because that employee filed a claim against a previous employer. Moreover, contrary to appel-lee’s suggestion during oral argument, interpreting section 440.205 as providing for a civil cause of action against employers who discharge employees for having filed a workers’ compensation claim against a previous employer would not serve to encourage employees to file workers’ compensation claims. Rather, such an interpretation is consistent with what we find to be the legislative intent and public policy concerns behind section 440.205. The Florida Legislature intends that injured workers receive the prompt delivery of benefits and that the workers’ compensation system be efficient. See § 440.015, Fla. Stat. (2000). The Legislature also intends that a worker’s return to gainful reemployment be facilitated. See id. Yet, if an injured employee is unable to return to his or her job because of his or her limitations and then is discharged from his or her subsequent job because of having filed or having attempted to file a claim at the previous job, this public policy would be frustrated. We are not alone in this view. While no Florida court has yet addressed this issue, other jurisdictions have done so.

For instance, in Taylor v. Cache Creek Nursing Centers, 891 P.2d 607, 609 (Okla.Ct.App.1994), the employee appealed the trial court’s denial of her motion for new trial following the trial court’s grant of summary judgment in favor of the subsequent employer. The employee, who had worked as a medication assistant at Mayflower Nursing Home, filed a workers’ compensation claim after suffering an injury. Id. After the employee returned to work with certain restrictions, the subsequent employer purchased the nursing home and rehired the employee. Id. After the employee took a two-week leave from work, the employer discharged the employee. Id. The circumstances surrounding the discharge were in dispute. Id. at 609 n. 2. The employee then sued the employer, relying on title 85, sections 5 and 6 of the Oklahoma Statutes (Supp. 1993), and the trial court subsequently granted the employer’s summary judgment motion. Id. The Oklahoma Court of Appeals noted that an exception to the employment-at-will doctrine exists where termination violates a clear public policy mandate that is expressed by constitutional, statutory, or decisional law; one such exception exists when a worker exercises the right to file a workers’ compensation claim. Id. The court also noted that the question of whether such a right applies against a successor employer and not just the employer against whom the claim was filed had not previously been addressed in the state. Id. at 610. The court explained: ,

The clear intent of the Retaliatory Discharge Act is “to prohibit discrimination against employees who either initiated or participated in workers’ compensation proceedings.” Ingram v. Oneok, Inc., 775 P.2d 810, 811 (Okla.1989). Exempting subsequent employers from the statute would allow them to defeat the Legislature’s intent by firing or threatening to fire workers who had- exercised their statutory rights. Additionally, such an exemption could readily discourage employees from exercising those rights. Therefore, we hold 85 O.S.Supp;1993 § 5 does apply to successor business employers.

Id. Nevertheless, the court affirmed the trial court’s - order because the employee failed to show that her termination was significantly motivated by retaliation for filing a claim. Id. According to the court, there was no evidence, for example, showing a pattern of termination of workers who filed claims or of pressure put on workers not to file claims. Id. The court also noted that the employee did not allege that her supervisor or other employer representative referred to the claim when firing her. Id. Similarly, in Darnell v. Impact Industries, Inc., 105 Ill.2d 158, 85 Ill.Dec. 336, 473 N.E.2d 935, 936 (1984), the employee appealed from a judgment entered upon a verdict directed in favor of the employer. Prior to being hired by the employer, the employee answered “no” to the questions of whether she had ever' had a serious illness or injury in the past five years and whether she had received compensation for injuries. Id. After beginning work, the employer learned that the employee had sustained injuries' at her previous job and had filed a workers’ compensation claim. Id. After the employee informed her current employer that, while she had filed a claim, she had dismissed it and had not received any compensation payments, the employer discharged her. Id. The Illinois Supreme Court agreed with the employee that the evil resulting from the discharge of an employee for having filed a workers’ compensation claim against a prior employer is as great as if the discharge had been effected by the prior employer. Id., 85 Ill.Dec. 336, 473 N.E.2d at 937. The court perceived no distinction between the situation where an employee is discharged for filing a workers’ compensation claim against a defendant employer and one where the employer discharges the employee upon discovering that the employee had filed a claim against another employer. Id. The court explained, “To hold that the tort of retaliatory discharge requires that the workers’ compensation claim be made against the discharging employer would seriously undermine the comprehensive statutory scheme which provides ‘for efficient and expeditious remedies for injured employees.’ ” Id. (quoting Kelsay v. Motorola, Inc., 74 Ill.2d 172, 23 Ill.Dec. 559, 384 N.E.2d 353, 357 (1978)). The court affirmed the appellate court’s opinion reversing the trial court’s judgment directing a verdict in favor of the employer. See Darnell, 85 Ill.Dec. 336, 473 N.E.2d at 937; see also Hayes v. Computer Seis. Corp., 2003 WL 113457, at *1-*5 (Tenn. Ct.App. Jan.14, 2003) (holding that a civil cause of action exists in a situation where a subsequent employer discharges an employee because of the employee .having filed a workers’ compensation claim against a previous employer); Goins v. Ford Motor Co., 131 Mich.App. 185, 347 N.W.2d 184, 186-87 (1983) (holding that it is contrary to public policy for an employer to discharge an employee in retaliation for filing a workers’ compensation claim and finding that there is no reason to limit such a rule to employers who fire employees who filed claims against them rather than against previous employers), abrogated on other grounds as recognized in Kirkland v. Diecast Corp., 1998 WL 2016629, at *2 (Mich.Ct.App. Mar.3, 1998).

In contrast, the Kentucky Supreme Court, in a narrow 4-3 decision, held that section 342.197(1) of the Kentucky Revised Statutes, which provides that “[n]o employee shall be harassed, coerced, discharged, or discriminated against in any manner whatsoever for filing and pursuing a lawful claim under this chapter,” did not expand the cause of action for wrongful discharge for exercise of workers’ compensation rights beyond the retaliatory discharge situation. See Nelson Steel Corp. v. McDaniel, 898 S.W.2d 66, 69 (Ky.1995). There, the employee filed suit against the employer, alleging that the employer had discharged him because he had filed a workers’ compensation claim while working for a previous employer. Id. at 66. In noting that the employee had presented persuasive evidence that the reason the employer discharged him was because of its belief that the previous workers’ compensation claim would adversely affect its workers’ compensation rates, the court found the termination had been for economic reasons and was not retaliatory in nature. Id. at 68. In finding such, the court noted that its previous opinion in Grzyb v. Evans, 700 S.W.2d 399 (Ky.1985), specified a clear intent on its part to limit employees’ claims for wrongful discharge to those situations where the evidence established that an employer was retaliating against an employee for exercising a right conferred by a well-established legislative enactment or for refusing to violate the constitution or a statute. Id. at 69. The court further found that nothing in section 342.197(1) specified a legislative policy that employers may not discharge an employee when the motive is purely economic rather than retaliatory in nature. Id.

Although appellee urges us to find Nelson persuasive, we find little distinction between discharging an employee who filed a workers’ compensation claim against a previous employer in order to retaliate against the employee and discharging an employee because of the concern that the previous workers’ compensation claim may have a negative impact upon workers’ compensation insurance rates. See Allan v. SWF Gulf Coast, Inc., 535 So.2d 638, 639 (Fla. 1st DCA 1988) (noting that, while section 440.205 has been characterized as a retaliatory discharge provision, a specific retaliatory intent is not required by the express statutory language); see also Humphrey v. Sears, Roebuck, & Co., 192 F.Supp.2d 1371, 1374 (S.D.Fla.2002) (holding that in order to establish a prima facie case of retaliatory discharge under section 440.205, a plaintiff must show that he or she engaged in statutorily protected activity, i.e., filing a workers’ compensation claim, that an adverse employment action, such as discharge, occurred, and that the adverse action was causally related to the plaintiffs protected activities). In either case, the underlying reason for discharge is the employee’s previous workers’ compensation claim, which is contrary to Florida’s public policy. Thus, appellee’s reliance on Nelson is misplaced.

Notably, Associated Industries of Florida, as amicus curiae, relies upon the Florida Civil Rights Act (“the Act”) in support of its argument that we should not interpret section 440.205 as providing for a civil cause of action for employees who are discharged because of having filed a workers’ compensation claim against a previous employer and argues that the Act governs conduct by an employer based upon the status of an employee rather than any action or conduct engaged in by the employee while working for a prior employer. However, Associated Industries’ reliance on the Act is misplaced, and its argument is meritless. Section 760.10(l)(a), Florida Statutes (2000), makes it an unlawful employment practice for an employer to “discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual ... because of such individual’s race, color, religion, sex, national origin, age, handicap, or marital status.” As Associated Industries explains, this statute was patterned after Title VII, and federal case law may be applied in interpreting it. See King v. Auto, Truck, Indus. Parts & Supply, Inc., 21 F.Supp.2d 1370, 1375 n. 4 (N.D.Fla.1998) (holding that federal case law dealing with Title VII applies to the Act). Significantly, in McMenemy v. City of Rochester, 241 F.3d 279, 284 (2d Cir.2001), the Second Circuit Court of Appeals held that Title VII “protects any employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Titie VII proceedings.” In doing so, the court referred to the Equal Employment Opportunity Commission’s interpretation regarding Title VII:

An individual is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity. For example, a violation would be found if a respondent refused to hire the charging party because it was aware that she filed an EEOC charge against her former employer.

Id. at 283-84 (quoting EEOC Compliance Manual § 8-11(0(4) (Dec. 5, 2000)); see also Skillsky v. Lucky Stores, Inc., 893 F.2d 1088, 1094 (9th Cir.1990) (holding that section 6310(a) of the California Occupational Safety and Health Act of 1973, which provides that “[n]o person shall discharge or in any manner discriminate against any employee because such employee has either (1) made any ‘oral or written complaint ... or (2) instituted or caused to be instituted any proceeding under or relating to his rights ...,” does not limit legal actions to only those employers against whom complaints are filed because employers could circumvent an employee’s right to file a complaint and employees would hesitate to file health and safety complaints if they knew they would face the risk of not finding future employment).

Nor would, as. Associated Industries contends, our interpretation lead to the creation of a protected class of employees based solely on the employees’ prior accident history. As the Third District has held, section 440.205 cannot be interpreted to prohibit the discharge of an employee for any reason once the employee has filed or pursued a workers’ compensation claim. See Pericich v. Climatrol, Inc., 523 So.2d 684, 685 (Fla. 3d DCA 1988). Likewise, section 440.205 does not prohibit the discharge of an employee for any reason simply because that employee filed a workers’ compensation claim against a previous employer. In both instances, an employee must still prove that he or she was discharged from employment by reason of his or her valid workers’ compensation claim.

Accordingly, because section 440.205 clearly provides for a civil cause of action against an employer who discharges an employee for having filed a workers’ compensation claim against a- previous employer, we REVERSE the trial .court’s Final Summary Judgment and REMAND for further proceedings.

WOLF, C.J., specially concurs with written opinion; KAHN, J., dissents with written opinion.

WOLF, C.J.,

Concurring.

I concur fully in the excellent opinion of Judge Lewis. I write to note the scope of our decision today. We have determined that a cause of action exists under section 440.205, Florida Statutes, when a subsequent employer discharges an employee and the discharge is substantially based on the filing of a prior valid workers’ compensation claim. See Allan v. SWF Gulf Coast, Inc., 535 So.2d 638, 639 (Fla. 1st DCA 1988) (approving jury instruction which stated that the issue to be determined was “whether the desire to retaliate was a substantial factor in appellant’s discharge.”). In this case there was direct evidence of causation. Therefore, this decision does not address the sufficiency of indirect evidence which may entitle a plaintiff to have his case decided by a jury, nor do I necessarily concur in the holding of Silvers v. Timothy J. O’Donnell Corp., 751 So.2d 747 (Fla. 5th DCA 2000), as characterized by Judge Kahn in the dissent.

KAHN, J.,

dissenting.

Judge Lewis has prepared an excellent opinion that fairly reviews cases from other states on the question presented here, for the first time, under Florida law. I respectfully dissent because I am not confident that my understanding of Florida’s public policy concerning workers’ compensation claims is as clear as is the majority’s. Even assuming the correctness of the majority’s characterization of Florida’s public policy, I am not persuaded that the Legislature has created a cause of action for discharge by a subsequent employer. Further, and again assuming the correctness of the majority’s characterization of Florida’s public policy, the remedy crafted today has a gaping hole.

As the majority acknowledges, Florida apparently does not recognize a civil cause of action against a subsequent employer who refuses to hire a job applicant for having filed a workers’ compensation claim against a previous employer. Slip Op. 7. This concession by the majority is necessary because our Legislature certainly knows how to penalize refusal to hire, and has done so in section 440.105, Florida Statutes, a law purporting to criminalize (but not provide civil liability for) the act of “[d]ischarg[ing] or refus[ing] to hire an employee or job applicant because the employee or applicant has filed a claim for benefits under this chapter.” § 440.105(2)(a)2., Fla. Stat. (2002). Although refusal to hire would certainly violate the same public policy identified by the majority, it would not subject an employer to a civil cause of action.

Given this admitted bit of confusion, I would read section 440.205 narrowly, as in derogation of the common law. I would also read the section narrowly because it interferes with Florida’s doctrine of at-will employment, and with the general freedom of contract exercised by employers and employees regularly. I would read the statute as simply prohibiting retaliation by an employer who has actually been subjected to a valid workers’ compensation claim by the employee in question. Indeed, and having read the out-of-state case law relied upon by the majority, I am at a loss to understand how the concept of retaliatory discharge applies to an employer against who no claim has ever been made by the employee. It is almost as if we would have to assume some vast conspiratorial urge on the part of employers, and I am not willing to go that far. If the argument for a cause of action against a subsequent employer has merit, then that argument should be memorialized by the Legislature.

I also find myself unable to escape the conclusion that today’s construction will give a cause of action in favor of any employee who has ever filed a workers’ compensation claim, and that such claim may arise against any subsequent employer forever. The majority acknowledges that retaliatory intent is not required by the statutory language. Moreover, it appears, at least under some decisions, that an employee may obtain a jury determination by proving the protected activity, the discharge, and presenting circumstantial evidence that the employer knew that the employee had made a workers’ compensation claim. See Silvers v. Timothy J. O’Donnell Corp., 751 So.2d 747 (Fla. 5th DCA 2000). The facts alleged in the present case, as briefly recited in the complaint, may be compelling. Nevertheless, these facts are not particularly relevant to the result reached today because we are construing a statute, without regard to the facts of a particular case. I would affirm the final judgment in favor of appellee.

      . In his complaint, appellant alleged that, after being discharged, he applied to the Florida Department of Health and Rehabilitative Services for food stamps. The agency requested that appellee, as appellant’s former employer, fill out a certain form. According to appellant, appellee’s then-president wrote, “W/C Risk-File Open on W/C Claim” next to the reason for termination.

      . This statute took effect on January 1, 1994. See Ch. 93-415, § 112,' at 215, Laws of Fla. When enacted, a violation of this section constituted a second-degree misdemeanor. See § 440.105(2)(a)2„ Fla. Stat. (Supp.1994). In 2003, the Legislature amended this section, declaring that a violation now constitutes a first-degree misdemeanor. See Ch. 03-412, § 11, at 3882, Laws of Fla.

      . Title 85, section 5 of the Oklahoma Statutes (Supp.1993), provides:
      A. No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted in good faith, any proceeding under the provisions of this title.... B. No employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties.
      Section 6 prescribes the applicable penalties such as reinstatement and monetary damages.

      . See Jeffrey K. Neiheisel, Nelson Steel Corp. v. McDaniel: Discrimination Against Employees Who Have Filed Workers’ Compensation Claims Against Previous Employers, 23 N. Ky. L.Rev. 435, 449 (1996) (asserting that the Kentucky Supreme Court made several errors such as implying that there is a difference between a retaliatory motive and an economic motive because the result of the termination was to punish the employee for simply exercising his rights under the law).


author: KAHN, J.

text:
    Clarice TABB, on behalf of and as parent and natural guardian of Dylan TABB, a minor, Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL INJURY COMPENSATION ASSOCIATION and Grace Valente, M.D., And Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville, Intervenors, Appellees.
    No. 1D03-3512.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.

      Richard L. Nichols, Jacksonville, for Appellant.
    Wilbur E. Brewton and Kelly B. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Florida Birth-Related Neurological Injury Compensation Association, and James C. Rinaman and Sonya H. Hoener of Marks Gray, P.A., for Memorial Healthcare Group, Appellees.
   KAHN, J.

Appellant Clarice Tabb challenges a final order of an administrative law judge (ALJ) on her claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (NICA Plan) contained in sections 766.301-.316, Florida Statutes (2001). As a threshold matter, Tabb challenges the subject matter jurisdiction of the ALJ to determine whether she received the required notice, pursuant to section 766.316, that appellee Memorial Healthcare Group (Memorial) participated in the Plan. Tabb also argues that the ALJ erred in applying a presumption that the NICA Plan brochure was delivered to her because Memorial introduced evidence of a routine of providing such brochures to patients at pre-registration. We find that the ALJ did have subject matter jurisdiction to determine the notice issue, but because we agree, as Tabb argues, the ALJ erroneously applied a presumption,- we reverse and remand this case for further proceedings.

I. Background

In August 2002, appellant Clarice Tabb, individually and as mother and next Mend of Dylan Tabb, filed a petition with the Division of Administrative Hearings seeking compensation under the NICA Plan. In her petition, Tabb, although asserting that Dylan had suffered an injury compensable under the Plan, claimed she had not received notice that Memorial participated in the Plan. Under the law, patients who do not receive notice may proceed in court against a health care provider and are not limited to the NICA Plan’s no-fault remedies. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309-10 (Fla.1997) (“[T]he only logical reading of the statute is that before an obstetrical patient’s remedy is limited by the NICA plan, the patient must be given pre-deliv-ery notice of the health care provider’s participation in the plan- [T]he purpose of the notice is to give an obstetrical patient an opportunity to make an informed choice between using a health care provider participating in the NICA plan or using a provider who is not a participant and thereby preserving her civil remedies.”). The Florida Birth-Related Neu-rologieal Injury Compensation Association (NICA) responded to the petition and agreed the claim was compensable.

A hearing took place regarding whether the notice provisions of the Plan were satisfied, whether NICA’s proposal to accept the claim for compensation should be approved, and the amount of compensation that should be awarded. On the notice issue, Memorial presented evidence that when Tabb came to the hospital to preregister, the hospital had a routine pursuant to which the registration clerk provided the patient with a preadmission packet and this packet included a copy of the NICA brochure. Tabb presented evidence that the routine, assuming there was one, was not followed. She testified that she did not receive the NICA brochure when she pre-registered and no one discussed the NICA Plan with her. She was not asked to sign a receipt that she received the brochure. She testified, “I am certain that I was never even aware of NICA and I never signed any forms concerning NICA.” Tabb could not recall who preregistered her at the hospital and when asked if it was the clerk, Leslie Joseph, who had testified in support of Memorial’s routine, Tabb answered, “Her hair was different.” Tabb indicated it was “possible” she was the clerk but she testified, “I’m not exactly sure who was there that particular day.” Joseph testified that she did not recall preregistering Tabb and that another clerk also performs that task. Joseph testified that both she and the other clerk are African-American women, and that the other clerk has longer hair, is lighter, taller, and a little thinner.

In his order, the ALJ found the notice provisions were satisfied. In particular, with regard to notice provided by Memorial, the ALJ made the following findings:

11. As for Memorial Hospital and the notice issue, it is resolved that on September 20, 2001, when Ms. Tabb presented to Memorial Hospital for preregistration, the hospital had an established routine whereby the registration clerk would provide the prospective patient with a preadmission packet, which included a copy of the NICA brochure. Consequently, there being no compelling proof to the contrary, it must be resolved that, [when] she presented for pre-registration, the hospital provided Ms. Tabb a copy of the NICA brochure. Watson v. Freeman Decorating Co.

The ALJ also found that the claim should be accepted and explained that the parties had stipulated to an award. Tabb has appealed.

II. Analysis

A. ALJ’s Jurisdiction to Determine Notice

Despite the fact that she brought the claim in the administrative forum, Tabb now argues for the first time that the ALJ did not have jurisdiction to decide this issue. We address the issue because subject matter jurisdiction cannot be waived and can be raised at any time. See, e.g., Seven Hills, Inc. v. Bentley, 848 So.2d 345, 350 (Fla. 1st DCA 2003) (“Subject matter jurisdiction, which arises only as a matter of law, cannot be created by waiver, acquiescence or agreement of the parties, by error or inadvertence of the parties or their counsel, or by the exercise of the power of the court.”); MCR Funding v. CMG Funding Corp., 771 So.2d 32, 35 (Fla. 4th DCA 2000) (“Subject matter jurisdiction may not be conferred upon the court by the consent of the parties, and the lack of subject matter jurisdiction may be raised for the first time on appeal.”).

The ALJ’s authority derives from section 766.304, Florida Statutes (2001):

The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.816 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary to carry out the purposes of such sections. The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge.' If the administrative law judge determines that the claimant is entitled to compensation from the association, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions ofs. 766.303. If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit thfe claimant from pursuing any and all civil remedies available under common law and statutory law....

(emphasis added). In order to “hear and determine” a claim, an ALJ must, almost of necessity, decide whether notice was given, because if no notice was given, the exclusivity provision of the statute does not apply. See § 766.316, Fla. Stat. (2001); Galen, 696 So.2d at 310-11. Further, an ALJ has “exclusive jurisdiction” to determine whether a claim is compensable under the NICA Plan. In the absence of notice, the Plan does not apply. Given these provisions, we are led to conclude that an ALJ has jurisdiction to determine whether notice was given. As established law provides, an ALJ must have jurisdiction to determine whether the ALJ has jurisdiction. See, e.g., Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958) (explaining that “a tribunal always has jurisdiction to determine its own jurisdiction”).

Notably, in 2003, the Legislature amended the NICA statute to add section 766.309(4), Florida Statutes:

If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31.

Ch. 03-416, § 77, at 4117, Laws of Fla. In passing the amendment, the Legislature implicitly acknowledged the existing case law indicating that an AL J has jurisdiction to determine whether notice was provided pursuant to section 766.316. See generally, e.g., City of Hollywood v. Lombardi, 770 So.2d 1196, 1202 (Fla.2000) (explaining that the Legislature is presumed to know the judicial construction of a law when passing a new version of the law and to have adopted the prior judicial construction unless a contrary intent is expressed).

Other district courts of appeal had, before 2003, indicated that an ALJ has jurisdiction to determine whether the notice requirement was satisfied in a particular case. See O’Leary v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 757 So.2d 624, 627 (Fla. 5th DCA 2000) (“The language used by the legislature in its amendment to the Act indicates that the administrative judge is to determine all matters relative to a claim. Notably, the determination of the adequacy of notice is not excluded from the duties of the administrative law judge.... [A]ny issue raising the immunity of a health provider, including the issue of whether the health provider satisfied the notice requirements of the Plan is an issue to be decided by the administrative law judge as one which relates to the question of whether the claim is compensable under the Plan.”); Univ. of Miami v. M.A., 793 So.2d 999 (Fla. 3d DCA 2001) (adopting decision in O’Leary). See also Gugelmin v. Div. of Admin. Hearings, 815 So.2d 764 (Fla. 4th DCA 2002); Behan v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 664 So.2d 1173 (Fla. 4th DCA 1995).

Appellant Tabb disagrees with these decisions and relies on language in section 766.309 as well as recent decisions of the Second District Court of Appeal. See All Children’s Hosp., Inc. v. Dep’t of Admin. Hearings, 863 So.2d 450, 456 (Fla. 2d DCA 2004) (“There is nothing in section 766.309 or elsewhere in NICA that gives the ALJ any responsibility or .authority to determine either (a) that notice under section 766.316 was or was not properly given, or (b) that a provider is or is not entitled to invoke the immunity from tort liability provided for in section 766.303(2).”); Fla, Health Sciences Ctr., Inc. v. Div. of Admin. Hearings, 871 So.2d 1062, 1065 (Fla. 2d DCA 2004) (“No part of the NICA statute confers on the ALJ any authority to determine issues related to notice.”). In its decisions, the Second District noted direct conflict with the three other district courts that have specifically ruled on this issue. See Fla. Health Sciences, 871 So.2d at 1066; All Children’s Hosp., 863 So.2d at 457.

This court has not addressed the issue before but has indicated that a participating physician’s failure to provide the required NICA notice under section 766.316 was not harmless. See Schur v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 832 So.2d 188 (Fla. 1st DCA 2002). We now decide, in accord with decisions of the Third, Fourth, and Fifth Districts, that an ALJ has jurisdiction to determine whether the notice requirement was satisfied in a particular case. Appellant’s preferred result would require a circuit court proceeding any time notice becomes an issue, contrary to the terms of the law. See § 766.301(1)(d), Fla. Stat. (2001) (“The issue of whether such claims are covered by this act must be determined exclusively in an administrative proceeding.”).

B. Evidence of Routine Practice

On the merits of the case, Tabb argues that, assuming testimony indicated Memorial had a routine of providing NICA brochures at pre-registration, the ALJ erroneously applied a presumption that the NICA brochure was delivered to her. Tabb argues, “If Memorial had instituted a routine of providing NICA brochures to its patients at the pre-registration (which is denied), such practice should constitute a circumstantial inference that Clarice Tabb may have received the brochure, not a presumption that she did in fact receive the brochure.” We agree.

In applying a presumption that Memorial had given Tabb a NICA brochure at her pre-registration, the ALJ relied on Watson v. Freeman Decorating Co., 455 So.2d 1097 (Fla. 1st DCA 1984). As Tabb points out, however, the Watson case involved the mailing and receipt of a letter:

A hospital representative testified that the billing code indicated the statement was mailed in the ordinary course of business. The record reflects the statement is dated October 10, 1981, which places it within the ten-day statutory reporting period. There is a general presumption that the ordinary course of business has been followed, absent a showing to the contrary.

455 So.2d at 1099. As Tabb further points out, in Watson, unlike the situation here, no evidence was offered to show the ordinary practice was not followed.

In this case, the ALJ’s use of the language “no compelling proof to the contrary” compels us to conclude that he determined Memorial’s evidence entitled Memorial to a rebuttable presumption, thereby shifting the burden of proof to Tabb to prove the contrary. See §§ 90.801, 302, Fla. Stat. (2001). Evidence of Memorial’s routine of including a NICA brochure in each pre-registration packet is admissible to prove that Tabb received the brochure when she pre-regis-tered. See § 90.406, Fla. Stat. (2001) (“Evidence of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is admissible to prove that the conduct of the organization on a particular occasion was in conformity with the routine practice.”); see also, e.g., Singer Housing v. Wren, 890 So.2d 428, 430 (Fla. 1st DCA 1980) (finding evidence concerning defendant’s past acts admissible as past trade or business practices). Nothing in the evidence code or case law, however, indicates that such evidence creates a presumption that Tabb received the brochure. Instead, the ALJ should have weighed and considered the evidence as any other type of evidence. See Lumbermens Mut. Cas. Co. v. Alvarez, 443 So.2d 279 (Fla. 3d DCA 1983).

In Lumbermens, the court explained the effect of section 90.406 and also explained that the evidence of a routine practice did not establish a presumption but, instead, would support only an inference that the practice was followed in the case:

The impact of Section 90.406 on the case at hand is that [the defendant’s] testimony as to the routine practice of the insurance agency is not to be disregarded, as it was below, merely because it is uncorroborated and indeed is contradicted by [the plaintiffs] “eyewitness” denial; instead, [the defendant’s] testimony is to be weighed and considered by the trier of fact as any other type of evidence. [The plaintiffs] direct proof is not superior, as a matter of law, to [the defendant’s] circumstantial proof. While coneededly [the defendant’s] testimony as to the routine practice establishes no presumption that it was followed in a particular instance, it is nonetheless sufficient to support an inference by the trier of fact that the practice was followed on the particular occasion in question, notwithstanding that [the plaintiffs] testimony directly contradicts such an inference.

Id. at 281. Similarly, in this case, testimony presented by Memorial does not establish a presumption that the routine of distributing the NICA brochure was followed in this case; rather, such evidence will support only an inference by the ALJ that the practice was followed when Tabb preregistered. ■

Moreover, the ALJ’s use of a presumption in this case is at odds with the clear language of the statute. The NICA statute tells health care providers exactly what they need to do to avail themselves of a rebuttable presumption that the notice requirements have been satisfied: “Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met.” § 766.316, Fla. Stat. (2001). Here, even though Memorial did not document the alleged act of providing notice to Tabb, the ALJ nevertheless gave Memorial the benefit of a rebuttable presumption. This construction renders the statute superfluous and contravenes accepted statutory construction doctrine. See, e.g., Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003) (“It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.”); State v. Goode, 830 So.2d 817, 824 (Fla.2002) (“[A] basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless.”)

Memorial urges that any error by the ALJ in applying a presumption is harmless because Tabb, not Memorial, actually had the burden of proving whether notice was given. The ALJ, however, properly found that “[a]s the proponent of the issue, the burden rested on the health care providers to demonstrate, more likely than not, that the notice provisions of the Plan were satisfied.” See Galen, 696 So.2d at 311 (“[T]he assertion of NICA exclusivity is an affirmative defense.”). Because the ALJ then shifted the burden to Tabb to prove the contrary, however, the error cannot be characterized as harmless.

III. Conclusion

The ALJ had subject matter jurisdiction to determine whether Tabb received notice but erroneously applied a presumption on that issue. On remand, the ALJ, affording Memorial’s evidence the proper weight, should make a new determination on the question of notice.

REVERSED and REMANDED for further proceedings.

WOLF, C.J., and LEWIS, JJ., CONCUR.

      . Section 766.316, Florida Statutes (2001), provides:
      Notice to obstetrical patients of participation in the plan. — Each hospital with a participating physician on its staff and each participating physician, other than residents, assistant residents, and interns deemed to be participating physicians under s. 766.314(4)(c), under the Florida Birth-Related Neurological Injury Compensation Plan shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. Such notice shall be provided on forms furnished by the association and shall include a clear and concise explanation of a patient’s rights and limitations under the plan. The hospital or the participating physician may elect to have the patient sign a form acknowledging receipt of the notice form. Signature of the patient acknowledging receipt of the notice form raises a rebuttable presumption that the notice requirements of this section have been met. Notice need not be given to a patient when the patient has an emergency medical condition as defined in s. 395.002(9)(b) or when notice is not practicable.

      . 766.309 Determination of claims; presumption; findings of administrative law judge binding on participants.—
      (1) The administrative law judge shall make the following determinations based upon all available evidence:
      (a)Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebut-table presumption shall arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).
      (b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.
      (c) How much compensation, if any, is awardable pursuant to s. 766.31.
      (2) If the administrative law judge determines that the injury alleged is not a birth-related neurological injury or that obstetrical services were not delivered by a participating physician at the birth, she or he shall enter an order and shall cause a copy of such order to be sent immediately,to the parties by registered or certified mail.
      (3) By becoming a participating physician, a physician shall be bound for all purposes by the finding of the administrative law judge or any appeal therefrom with respect to whether such injury is a birth-related neurological injury.

      . 90.301 Presumption defined; inferences.—
      (1) For the purposes of this chapter, a presumption is an assumption of fact which the law makes from the existence of another fact or group of facts found or otherwise established.
      (2) Except for presumptions that are conclusive under the law from which they arise, a presumption is rebuttable.
      (3) Nothing in this chapter shall prevent the drawing of an inference that is appropriate.
      (4) Sections 90.301-90.304 are applicable only in civil actions or proceedings.
      90.302 Classification of rebuttable presumptions.
      Every rebuttable presumption is either:
      (1) A presumption affecting the burden of producing evidence and requiring the trier of fact to assume the existence of the presumed fact, unless credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact is introduced, in which event, the existence or nonexistence of the presumed fact shall be determined from the evidence without regard to the presumption; or
      (2) A presumption affecting the burden of proof that imposes upon the party against whom it operates the burden of proof concerning the nonexistence of the presumed fact.


text:
    Raymond E. WHEELER, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-5212.
    District Court of Appeal of Florida, First District.
    Aug. 30, 2004.
    Appellant, pro se.
    Charlie Crist, Attorney General; Sherri T. Rollison, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant has stated a facially sufficient claim that the trial court violated his constitutional protection against double jeopardy, we reverse.

In the instant rule 3.800 motion, the appellant alleges the trial court acted outside its jurisdiction and violated his double jeopardy rights by sua sponte rescinding jail credit for Count II that was previously awarded. The trial court summarily denied the appellant’s motion.

A trial court may not sua sponte rescind jail credit previously awarded at any time even if the initial award was improper. Lebron v. State, 870 So.2d 165, (Fla. 2d DCA 2004); Linton v. State, 702 So.2d 236 (Fla. 2d DCA 1997). “[T]o increase the penalty is to subject the defendant to double punishment for the same offense in violation of the Fifth Amendment to the Constitution, which provides that no person shall ‘be subject for the same offense to be twice put in jeopardy of life or limb.’ ” United States v. Benz, 282 U.S. 304, 306, 51 S.Ct. 113, 75 L.Ed. 354 (1931); see Troupe v. Rowe, 283 So.2d 857 (Fla.1973). “[T]he rescinding of previously awarded jail credit is an enhancement of appellant’s sentence for which there is no provision in the Florida Rules of Criminal Procedure.... [T]he enhancement of a sentence after its initial imposition violates the prohibition against double jeopardy.” Linton, 702 So.2d at 236-37. Succinctly stated, the trial court cannot rescind jail credit after imposing it. Thus, the trial court’s reduction in previously awarded jail credit illegally enhanced the appellant’s sentence and violated his double jeopardy rights.

We therefore reverse the summary denial of the appellant’s claim to correct illegal sentence and remand with instructions to the trial court to restore the rescinded credit.

REVERSED AND REMANDED.

WOLF, C.J., BARFIELD and WEBSTER, JJ., concur.


author: CANADY, Judge.

text:
    Toney MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4293.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   CANADY, Judge.

Toney Mitchell appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion to correct an illegal sentence based on a scoresheet error. We reverse and remand.

Mitchell was convicted of possession of a firearm by a convicted felon and second-degree murder. He was subsequently sentenced to 304.2 months in prison for his second-degree murder conviction, with a three-year minimum mandatory for use of a firearm. The sentence of 304.2 months was the maximum guidelines sentence based on the scoresheet used by the sentencing court. Mitchell also received a concurrent sentence of 180 months in prison on his conviction for possession of a firearm by a convicted felon. Mitchell challenges his second-degree murder sentence on the ground that his scoresheet improperly included sentence points for the possession of a firearm.

Mitchell’s scoresheet included eighteen points for the possession of a firearm during the commission of the murder offense. Section 921.0014(1), Florida Statutes (1995), and Florida Rule of Criminal Procedure 3.702(d)(12) prohibit the addition of points for possession of a firearm where the conviction is for an enumerated felony under section 775.087(2), Florida Statutes (1995). See Kelly v. State, 796 So.2d 578 (Fla. 2d DCA 2001). Murder is an enumerated felony under section 775.087(2)(a). The inclusion on Mitchell’s scoresheet of eighteen points for possession of a firearm was therefore erroneous. Since Mitchell was given the maximum guidelines sentence, the scoresheet error resulted in the imposition of a sentence that could not have been imposed — absent a departure— under a correct scoresheet.

The postconviction trial court, in rejecting Mitchell’s claim, observed that an objection to the scoresheet error had been “raised and denied” in the sentencing proceeding. The postconviction court cited Moore v. State, 768 So.2d 1140 (Fla. 1st DCA 2000), in support of the principle that issues that were or could have been raised on direct appeal are “not cognizable on collateral attack.” The Moore court specifically acknowledged, however, that “a claim that the sentence is illegal can be asserted at any time in a proceeding under rule 3.800(a) even if it could have been raised earlier.” 768 So.2d at 1143.

Accordingly, we reverse and remand for the trial court to resentence Mitchell under a corrected scoresheet. See Kelly, 796 So.2d 578.

Reversed and remanded.

NORTHCUTT and COVINGTON, JJ., Concur.


author: FULMER, Judge.

text:
    Stephen WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-4056.
    District Court of Appeal of Florida, Second District.
    Sept. 1, 2004.
   FULMER, Judge.

Stephen Walker appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

On March 16, 2001, Walker was sentenced to six years in prison followed by two years of probation for burglary of a dwelling, an offense that occurred on September 25, 1999. His criminal punishment code scoresheet totaled 86.6 points, which included 30.4 points for prior record. In his motion, Walker alleged that three offenses were incorrectly included on his scoresheet as prior record because they were committed more than ten years before the date of the commission of his primary offense and he had not been convicted of any other crime for a period of ten years from his last release from prison or supervision to the date of commission of the primary offense. See Fla. R.Crim. P. 3.704(d)(14)(A). The trial court denied the motion because it determined that Walker was convicted in 1998 of driving with an expired driver’s license, which conviction allowed for the scoring of the three prior offenses on Walker’s scoresheet pursuant to rule 3.704(d)(14)(A).

It appears from the record that in 1998 Walker pleaded nolo contendere to driving with an expired driver’s license. The trial court withheld adjudication of guilt and placed him on probation. The question presented here is whether Walker was “convicted” of driving with an expired driver’s license in 1998 for the purpose of rule 3.704(d)(14)(A).

As defined in rule 3.704(d)(6), “ ‘[c]onvietion’ means a determination of guilt that is the result of a plea or trial, regardless of whether adjudication is withheld.” The definition of “conviction” in rule 3.704(d)(6) is the same as that set forth in section 921.0021(2), Florida Statutes (1999). The rule and the statute are ambiguous because the “determination of guilt” language implies a required finding of guilt, but the “regardless of whether adjudication is withheld” language implies that a finding of guilt is not necessary. The rule of lenity provides that when the language of a criminal sentencing statute is ambiguous, the statute must be construed favorably to the accused. See § 775.021, Fla. Stat. (1999); State v. Rife, 789 So.2d 288, 294 (Fla.2001). We, therefore, read rule 3.704(d)(6) and section 921.0021(2) to require a finding of guilt.

According to State v. Freeman, 775 So.2d 344 (Fla. 2d DCA 2000), and Batchelor v. State, 729 So.2d 956 (Fla. 1st DCA 1999), there is no determination of guilt in a disposition involving a withheld adjudication following a nolo contendere plea. The Fourth District has disagreed with Batche-lor and Freeman and held that a determination of guilt is inherent in the process of withholding adjudication following a nolo contendere plea. See Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), review granted, 837 So.2d 410 (Fla.2003). We disagree and write to further explain our holding in Freeman.

In a different context, the Supreme Court has concluded that a nolo contende-re plea does not constitute “a determination of guilt.” See Lott v. United States, 367 U.S. 421, 426-27, 81 S.Ct. 1563, 6 L.Ed.2d 940 (1961). It is the judgment of conviction following a nolo contendere plea, not the plea itself, that constitutes the determination of guilt. Id. at 426-27, 81 S.Ct. 1563. The First District explained in Batchelor that when adjudication of guilt has been withheld, the only two ways a determination of guilt can exist is when a jury has returned a guilty verdict and when a defendant has entered a plea of guilty. 729 So.2d at 958; see also Garron v. State, 528 So.2d 353, 360 (Fla.1988) (“[T]he plea of guilty is an absolute condition precedent before the lack of adjudication can be considered a conviction.”).

In Vinson v. State, 345 So.2d 711, 715 (Fla.1977), the defendant entered a nolo contendere plea and the trial judge, after an evidentiary hearing, entered an order finding the defendant not guilty. The supreme court determined that the trial court exceeded its authority in finding the defendant not guilty. Id. at 712. The supreme court in Vinson discussed the nature and purpose of a nolo contendere plea. “ ‘The plea of Nolo contendere (I will not contest it) is used in criminal cases where the accused, though unwilling to confess his guilt, does not wish to go to trial, and desires the court immediately to impose sentence.’ ” Id. at 718 (quoting Tucker v. United States, 196 F. 260 (7th Cir.1912)). Because the plea is not a confession of guilt, historically a plea of nolo contendere did not require an inquiry into the factual basis for the plea; whereas a trial court was required to make that inquiry when a defendant entered a guilty plea. 345 So.2d at 712-13. “A plea of nolo contendere has been determined to be equivalent to a guilty plea only insofar as it gives the court the power to punish.” Id. at 715. When a defendant enters a plea of nolo contendere, the allegations of the charge are not admitted in a technical sense, although they stand as impliedly admitted for the purpose of disposing of the case. Id. at 715.

A plea of nolo contendere does not admit the allegations of the charge in a technical sense but only says that the defendant does not choose to defend. It is merely a formal declaration that the accused will not contest the charges with the prosecutor and is in the nature of a compromise between the state and the accused.

Id. at 715 (citation omitted).

We conclude, based on the foregoing reasons, that in construing rule 3.704(d)(6) in favor of the accused, a prior “conviction” does not arise when a defendant enters a nolo contendere plea to an offense and there is no adjudication or finding of guilt by the court. Therefore, we hold that such a disposition does not qualify as a conviction for purposes of applying rule 3.704(d)(14)(A). Because Walker was not convicted of an offense within the last ten years of his release from prison or supervision and the date of the instant offense, the three prior offenses should not have been scored as prior record.

We certify conflict with the Third District in Russell v. State, 855 So.2d 722 (Fla. 3d DCA 2003), appeal docketed, SC03-1894 (Fla. Oct. 23, 2003), and the Fourth District in Montgomery v. State, 821 So.2d 464 (Fla. 4th DCA 2002), review granted, 837 So.2d 410 (Fla.2003).

Accordingly, we reverse and remand for further proceedings. Unless the record can conclusively demonstrate that the trial court would have sentenced Walker to the same sentence using a corrected score-sheet, he is entitled to be resentenced using a corrected scoresheet. See Anderson v. State, 865 So.2d 640 (Fla. 2d DCA 2004), appeal docketed, SC04-261 (Fla. Feb. 23, 2004). On this point, we additionally certify conflict with the First District in Hummel v. State, 782 So.2d 450 (Fla. 1st DCA 2001), as we did in Anderson.

Reversed and remanded; conflicts certified.

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