author: KELLY, Judge.

text:
    J.S.G., JR., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-134.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.

      David T. Weisbrod, Tampa, for Appellant.
    Charles J. Crist, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

This case involves a boating accident on Big Bay Lake in Hillsborough County. J.S.G. was operating a boat on the lake when he struck and severely injured an individual who was floating in the water. When the accident occurred, J.S.G. was pulling a wakeboarder behind the boat. According to J.S.G., he saw in his rearview mirror that the wakeboarder had fallen. He turned to look backwards for two to three seconds to verify that the wake-boarder was down and then checked his path to prepare to turn and retrieve him. As he turned, he heard a thump and a scream. In contrast, the victim testified that as the boat approached him he saw J.S.G. looking backwards watching the wakeboarder perform tricks. When the boat was 200 yards away, he began to yell and wave his arms in an attempt to get J.S.G.’s attention.

The State charged J.S.G. with culpable negligence resulting in serious personal injury in violation of section 784.05(2), Florida Statutes (2003), and with failing to comply with Navigation Rule 5, 33 U.S.C. § 2005, resulting in a boating accident, which is a second-degree misdemeanor under section 327.33(3)(a), Florida Statutes (2003). The trial court found J.S.G. not guilty of culpable negligence, but guilty under section 327.33(3)(a). In this appeal, J.S.G. challenges the sufficiency of the evidence to support the trial court’s determination of guilt.

Section 327.33(3) provides that “[e]ach person operating a vessel upon the waters of this state shall comply with the navigation rules.” The navigation rules are defined in section 327.02(23), Florida Statutes (2003), as the Inland Navigational Rules Act of 1980, 33 U.S.C., §§ 2001 et seq., as amended, for boating activity not regulated by the International Navigational Rules Act of 1977. Section 327.33(3)(a) provides that a “person whose violation of the navigation rules results in a boating accident ... is guilty of a misdemeanor of the second degree.” The State alleged that J.S.G. failed to maintain a proper lookout as required by Rule 5, resulting in a boating accident. Rule 5 mandates that “[e]very vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.” 33 U.S.C. § 2005.

J.S.G. first argues that the State did not prove a violation of Rule 5 because that rule only applies to ship collisions and, further, because it does not apply to pleasure craft. These contentions are refuted by the plain language of the statute. Section 327.33(3) provides that each person operating a “vessel” shall comply with the navigation rules. The statute does not exclude pleasure craft. Section 327.02(2) defines a “boating accident” as “a collision, accident, or casualty involving a vessel in or upon ... the water.” This definition does not limit a “boating accident” to a collision between vessels.

J.S.G. points to the fact that the purpose of the Inland Navigational Rules Act of 1980 was to prevent “ship collisions,” citing S.Rep. No. 96-979, at 1 (1980), as reprinted in 1980 U.S.C.C.A.N. 7068. He maintains that he could not have violated the navigation rules because his boat did not collide with another boat. What J.S.G. fails to appreciate is that the navigation rules are operational rules. Although their purpose may be to prevent ship collisions, they nevertheless constitute the “rules of the road” for vessels, just as traffic regulations govern the conduct of motor vehicles on land. Section 327.33(3) mandates that boaters comply with the “rules of the road” when traveling on the waters of this state. Thus, the issue in this case is whether J.S.G. operated his boat in compliance with the rules.

J.S.G. also argues that Rule 5 cannot apply to pleasure craft because it requires someone other than the vessel’s operator to act as a lookout. Although cases interpreting the lookout requirement “waiver between the function of looking out and the person designated as the lookout ... the text of Rule 5 focuses on the function, rather than the person or persons performing it.” Craig H. Allen, Farwell’s Rules of the Nautical Road 131 (Naval Institute Press, 8th ed. 2005). The rule is applied to pleasure craft with a one-man crew, and in those instances, “the focus is on the lookout function and whether it is carried out in a manner that provides the person directing the movement of the vessel with a full and timely appraisal of the situation and the risk of collision.” Id. at 141. Moreover, J.S.G.’s expert acknowledged that J.S.G. had a duty to maintain a proper lookout in accordance with Rule 5.

J.S.G. next contends that the evidence failed to establish that he violated Rule 5. The State’s expert in the field of maritime navigation rules and procedures testified that Rule 5 requires a good lookout by using all available means. He concluded that when J.S.G. looked backward to verify that his wakeboarder had been dropped, despite having a mirror for that purpose, he did not use all available means to maintain a good lookout.

J.S.G.’s expert concluded that J.S.G. had maintained a proper lookout under the circumstances. He opined that other factors beyond J.S.G.’s control contributed to the accident. Those factors included the choppy water, the dark life jacket worn by the victim, and the dark murky water itself. He opined that proper operation of a vessel requires that the operator be aware of the status of his skier and that, even though he had a mirror, it would have been negligent for J.S.G. to not look toward the back of his vessel to ascertain that his wakeboarder was down and to check his path before turning to retrieve him. Critically, he acknowledged that in reaching his opinion he had not taken into account the victim’s version of events because he felt it was not credible. He testified that if the victim’s account was accurate, then he would have to conclude that J.S.G. had not maintained a proper lookout.

In the face of conflicting evidence, the adequacy of the lookout is for the finder of fact to determine. See Anthony v. Int’l Paper Co., 289 F.2d 574 (4th Cir.1961). Here, the trial court considered the testimony of witnesses and experts, determined that the victim’s testimony was accurate, and concluded that J.S.G. failed to maintain a proper lookout causing a boating accident. Because the record supports the trial court’s conclusion, we affirm.

Affirmed.

CASANUEVA and DAVIS, JJ., Concur.


source: Caselaw Access Project

author: ALTENBERND, Judge.

license: Public Domain

text:
    Erik C. NELSON, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION and Specialized Painting, Inc., Appellees.
    No. 2D04-5453.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Erik C. Nelson, pro se.

      Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Senior Attorney, Tallahassee, for Appellee UAC.
    No appearance for Appellee Specialized Painting, Inc.
   ALTENBERND, Judge.

Erik C. Nelson appeals the order of the Florida Unemployment Appeals Commission that affirmed the decision of the appeals referee. The appeals referee determined that Mr. Nelson was not entitled to unemployment benefits because he voluntarily quit his job. Competent, substantial evidence supports this decision, and the Commission made no error of law that warrants reversal by this court. Accordingly, we affirm the order on appeal.

Mr. Nelson worked as an estimator for Specialized Painting, Inc. He was a salaried employee. The record contains no evidence that he had a written contract providing him with any employment security, and thus, we must assume that he was an at-will employee.

Specialized Painting decided that it would create a noncompetition agreement to be signed by all of its salaried employees. Mr. Nelson was aware of this plan and was concerned about it. There is evidence in the record that Specialized Painting tried to address Mr. Nelson’s concerns about the agreement.

On May 9, 2003, Mr. Nelson went to his supervisor and advised him that he was not going to sign the agreement. Shortly thereafter, he advised the president of the corporation of his decision. Mr. Nelson testified that he did not resign during these discussions; rather, he was instructed to leave. On the other hand, the president of the corporation testified that Mr. Nelson advised him that he was quitting but that he was willing to stay on for two weeks, or even a month, until Specialized Painting found a replacement. The president then talked with Mr. Nelson’s supervisor and decided that it was better for Mr. Nelson to leave immediately rather than to remain for a couple more weeks under the circumstances.

In deciding this case, the appeals referee accepted the testimony of the president of the corporation instead of the testimony of Mr. Nelson. We have no authority to override that decision because it is based on competent, substantial evidence. See Engel v. Louis Wohl & Sons, Inc., 841 So.2d 553 (Fla. 2d DCA 2003). Unlike Wood v. Unemployment Appeals Commission, No. 2D05-2941, 927 So.2d 127, 2006 WL 1098277 (Fla. 2d DCA Apr. 19, 2006) (citing Lewis v. Lakeland Health Care Center, Inc., 685 So.2d 876 (Fla. 2d DCA 1996)), this is a case in which the employer understood its burden of proof and met it.

We note that Mr. Nelson has not argued that the conditions in the proposed agreement and the manner in which the agreement was presented to him were such that a reasonable employee would have felt constrained to quit rather than sign them. In other words-, he is not arguing that he quit for good cause attributable to the employer. See Ritenour v. Unemployment Appeals Comm'n, 570 So.2d 1106, 1107 (Fla. 5th DCA 1990) (“ ‘Good cause’ for voluntarily quitting are those circumstances which would impel the average, able bodied, qualified worker to give up his employment.”). The evidence in this record would not support such a determination in any case.

It is obvious from this record that if Mr. Nelson had refused to sign the agreement and had also refused to leave his job, he probably would have been fired and would have been eligible for unemployment benefits. Mr. Nelson clearly does not understand the fine distinctions in the law under which he would have received benefits if he had been uncooperative under these circumstances but is now denied benefits because the referee decided that he politely stood his ground and resigned. See § 443.101(l)(a), Fla. Stat. (2003) (an employee who voluntarily leaves employment without good cause is disqualified from receiving benefits); see also Benson v. Unemployment Appeals Comm’n, 927 So.2d 49, 2006 WL, 846836 (Fla. 6th DCA Mar. 31, 2006). We have no ready, logical explanation that would comfort him. If there is any solace, Mr. Nelson did not sign the noncompete agreement and, thus, is free to work for anyone in the painting business in any location at any time.

Affirmed.

DAVIS and WALLACE, JJ., Concur.


author: THREADGILL, EDWARD F., Senior Judge.

text:
    Sarah H. MARAS, Appellant, v. Craig STILL, Appellee.
    No. 2D05-2078.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Joseph J. Regístrate, Tampa, for Appellant.
    James D. Beach of James. D. Beach, P.A., St. Petersburg, for Appellee.
   THREADGILL, EDWARD F., Senior Judge.

Sarah Maras appeals the trial court’s order temporarily awarding primary custodial responsibility of her minor child to the father, Craig Still. We reverse.

Ms. Maras filed her petition for dissolution of marriage from Mr. Still in August 2002. Eight months later, Ms. Maras filed a verified emergency motion for temporary relief maintaining that Mr. Still was the father of her child, born on January 27, 2003. She asked for child support, restricted visitation for Mr. Still, and an order directing Mr. Still to attend anger management and parenting classes. DNA testing confirmed that Mr. Still was, indeed, the father.

On March 2, 2004, the trial court entered a final judgment of dissolution that incorporated the parties’ marital settlement agreement. Ms. Maras and Mr. Still would share parental responsibility but Ms. Maras would be the primary residential parent. Mr. Still would enjoy liberal visitation.

In November 2004, Mr. Still filed a petition seeking joint custody, reduction in child support, and the appointment of a guardian ad litem. Having noticed bruising on the child that he believed evidenced abuse, Mr. Still contended that joint custody would provide him a better opportunity to monitor the child’s welfare. Mr. Still did not seek a change in primary resident tial custody. Ms. Maras responded to the motion with two Department of Children and Families reports concluding that there was no abuse.

On February 14, 2005, the trial court conducted a hearing on the motion. Our record contains no hearing transcript. On March 16, 2005, the trial court entered a temporary order changing primary residential custody from Ms. Maras to Mr. Still. The order also called for a social services investigation, modified visitation, and terminated Mr. Still’s child support obligation. The order did not address Mr. Still’s request for appointment of a guardian ad litem.

Ms. Maras argues that she did not retain counsel for or present witnesses at the hearing on Mr. Still’s motion because she had no notice that the trial court might take primary custody away from her. After entry of the order, Ms. Maras promptly filed a motion for rehearing arguing that she was denied due process. The trial court denied that motion.

“ ‘The trial court cannot modify a custody order unless the court’s subject matter jurisdiction has been properly invoked by appropriate pleadings, proper service of process has been had and there is given proper notice and opportunity to be heard on that issue.’ ” Busch v. Busch, 762 So.2d 1010, 1011 (Fla. 2d DCA 2000) (quoting Richmond v. Richmond, 537 So.2d 1039, 1040 (Fla. 5th DCA 1988)). In Busch, the trial court granted custody of the parties’ children to the mother. Id. at 1010-11. Later, the father filed a motion seeking to keep the mother out of the former marital home. Id. at 1011. At the hearing on the motion, the father sought custody of the children and presented testimony about the wife’s character and fitness as a parent. Id. The trial court gave primary custody to the father. Id. We reversed.

[The mother] was given no warning that the custody of her children was at stake. She appeared at the hearing unrepresented by counsel and was unprepared to rebut the unfavorable evidence presented against her. Because she received no notice and was denied a meaningful opportunity to respond to the [father’s] evidence, the trial court erred in ordering the change of custody.

Id.

Similarly, Ms. Maras had no warning that the primary residential custody of her child was at stake. Like the mother in Busch, Ms. Maras was unrepresented and unprepared to rebut the unfavorable evidence presented against her. Accordingly, we must reverse the trial court’s temporary order.

We note that the trial court’s temporary order was entered more than a year ago. We assume that the comprehensive investigation ordered by the trial court has been completed. We are confident that, upon remand, the trial court will conduct further proceedings, hopefully on an expedited basis, so as to ensure that the child’s best interests are protected.

Reversed and remanded.

SALCINES and LaROSE, JJ., concur.


author: WALLACE, Judge.

text:
    Gilbert G. TYLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3817.
    District Court of Appeal of Florida, Second District.
    April 28, 2006.
    Gilbert G. Tyler, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Gilbert G. Tyler appeals the postconviction court’s denial of his motion to correct illegal sentence filed under Florida Rule of Criminal Procedure 3.800(a). Mr. Tyler claims that amendments made by the trial court to his sentences resulted in the imposition of harsher sentences than were contemplated by his plea agreement or imposed at sentencing. The postconviction court found that the amendments to Mr. Tyler’s sentences merely corrected clerical errors and that his sentences were not increased by the amendments. Accordingly, the postconviction court denied the motion.

The postconviction court’s findings may be correct. Unfortunately, the postconviction court failed to attach to its order a copy of the transcript of the change of plea and sentencing hearing to conclusively refute Mr. Tyler’s claims. Consequently, we are compelled to reverse the postconviction court’s order and remand for further proceedings. See Fla. RApp. P. 9.141(b)(2)(D); Spears v. State, 920 So.2d 187, 187 (Fla. 2d DCA 2006) (“The burden is on the postconviction court to attach portions of the record refuting the rule 3.800(a) claim.”). If the postconviction court again denies Mr. Tyler’s motion, it shall attach to its order those portions of the record that conclusively refute his claims.

Reversed and remanded.

WHATLEY and SILBERMAN, JJ., concur.


author: MONACO, J. PALMER, J.,

text:
    R.D.W., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1135.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   MONACO, J.

R.D.W. appeals his juvenile delinquency disposition order to the extent that it requires him to remove a tattoo from his neck as a special condition of probation. Because we can find no legal basis on which the trial court could order the juvenile to have his tattoo removed on the specific facts of this case, we reverse.

A delinquency petition was filed against R.D.W. charging him with possession of cannabis. He later entered a plea of no contest to the charge. The trial court withheld adjudication and placed the defendant on probation. Five months later R.D.W. was charged with violating his probation by failing to report to and attend school regularly. After the juvenile admitted to violating his probation in the manner charged, the matter proceeded to disposition. During the disposition hearing, the State requested, among other things, that the trial court order R.D.W. to remove a tattoo consisting of the word, “Hustler,” that was located on his neck. Upon questioning from the court, the juvenile’s grandfather (and custodian) remarked that R.D.W. had not received permission to get that tattoo, but that the grandfather did not want to be responsible for paying to have it removed.

The court eventually withheld adjudication, reinstated the juvenile’s probation, and ordered him to “have the tattoo on his neck removed at his expense, not his grandfather’s expense.” Defense counsel objected to the trial court’s ruling, arguing that there was no legal basis which justified ordering the defendant to remove his tattoo. The trial court nevertheless maintained the requirement as a special condition of probation.

Our Supreme Court explained in Biller v. State, 618 So.2d 734 (Fla.1993), that a special condition of probation can be justified if it: (1) has a relationship to the crime with which the defendant was convicted; (2) relates to conduct that is in itself criminal; or (3) requires or forbids conduct which is reasonably related to the defendant’s future criminality. As to the first possible justification, R.D.W. was found delinquent for committing the offense of possessing cannabis. He violated his probation because he failed to attend school regularly and failed to report. There is no evidence in the record suggesting that the tattoo had anything to do with either his possession of an illegal substance, or with his attendance or reporting habits. As to the third justification, there is once again no evidence in the record indicating that the tattoo is gang related [as in the case of A.G. v. State, 726 So.2d 834 (Fla. 4th DCA 1999) ], or that it is otherwise connected to future criminality. That leaves only the second justification— that the tattoo relates to conduct that is in itself criminal — as an underpinning for the special condition imposed by the trial court. We do not believe that justification applies under the present facts either.

The State argues in this regard that the order requiring removal of the tattoo is justified because it involves conduct that is itself in violation of a criminal statute. This position is itself founded on section 877.04, Florida Statutes (2005), which reads in pertinent part:

(1) It is unlawful for any person to tattoo the body of any human being; except that tattooing may be performed by a person licensed ...
(2) Any person who violates the provisions of this section shall be guilty of a misdemeanor of the second degree, ...
(3) No body of a minor shall be tattooed without the written notarized consent of the parent or legal guardian.

Obviously, it is the third paragraph that is of importance to the present case. The State interprets the statute to say that it is unlawful for a juvenile to have a tattoo placed on his or her body, unless the juvenile has the required adult permission. That is to say, that if a juvenile obtains a tattoo, he or she is definitionally involved in conduct that is itself criminal. The third paragraph of the statute, however, appears to be directed not to the minor, but to the tattooist. It does not appear that it is the minor who breaks the law by getting a tattoo without the appropriate consent. Rather, it is the person who tattoos the minor who breaks the law. To say that by getting the tattoo R.D.W. was involved in “conduct which is in itself criminal,” is too great a stretch to authorize the imposition of the special condition of probation imposed on R.D.W., given the manner in which this statute is written, and the absence of any other facts that would justify the sanction.

We do not mean to imply that minors under the supervision of the Department of Juvenile Justice can feel free to have their bodies tattooed with impunity. A.G. is an excellent example of when ordering the removal of a tattoo might well be justified. There, however, the tattoo was related to criminal street gang membership. Here, there does not appear to be any such indication or justification.

Accordingly, the disposition order is affirmed except to the extent that it orders R.D.W. to remove the tattoo on his neck. The requirement to remove the tattoo is stricken.

REVERSED and REMANDED.

THOMPSON, J., concurs.

PALMER, J., dissents with opinion.

PALMER, J.,

dissenting.

I respectfully dissent. I conclude that the majority opinion directly conflicts with the Fourth District Court of Appeal’s opinion in A.G. v. State, 726 So.2d 834 (Fla. 4th DCA 1999), which ruled that one of two independent grounds which supported the order for removal of the juvenile’s tattoo was that the tattoo had not been lawfully obtained. I agree with the reasoning of the Fourth District Court of Appeal and thus would affirm the trial court’s disposition order.

Furthermore, the issue of whether a minor can be criminally prosecuted under section 877.04 of the Florida Statutes is not properly before this court for resolution; however, in response to the majority opinion’s discussion of same, I note that, regardless of whether the defendant’s conduct in obtaining a tattoo was criminal, such conduct related to conduct which is in itself criminal as is required under Biller v. State, 618 So.2d 734 (Fla.1993). Additionally, with regard to whether it is a violation of the Florida Statutes for a minor to receive a tattoo, it is noteworthy that the language of subsection 1 of the statute, which relates to tattooing by an unlicensed person, specifically makes it unlawful for any person to tattoo the body of another without a license, whereas the language set forth in subsection 3, dealing with the tattooing of minors, does not limit its application to making it unlawful for any person to tattoo the body of a minor without parental consent. Rather, the language is more general, stating that no body of a minor shall be tattooed without consent.

Lastly, as for the majority’s footnote discussion regarding R.D.W.’s ability to afford to pay to have his tattoo removed, I note that this issue was neither raised in the trial court nor in the briefs filed by the parties on appeal.

      . We also note that there is nothing in the record to suggest that R.D.W. could even afford to have the tattoo removed. C.f., Schotsch v. State, 670 So.2d 127 (Fla. 4th DCA), review denied, 679 So.2d 774 (Fla.1996). His grandfather, who is his custodian, indicated at the dispositional hearing that he did not want to be responsible for paying the cost of the removal, and the trial court ordered that only R.D.W. pay for it. This means that at the very least there is a probability that R.D.W. will again be brought before the juvenile court and accused of violating his probation when he fails to have the tattoo removed.


author: LAWSON, J.

text:
    Gary KOLIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1131.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Gary Kolin, (“Kolin”), appeals the trial court’s orders denying his motions to dismiss the State’s petition for involuntary civil commitment under the Jimmy Ryce Act, (“the Act”). We affirm.

Kolin was convicted of sexual battery in 1990, and sentenced to 15 years imprisonment. Two days before his scheduled release date of November 23, 2001, the State filed a petition to civilly commit Kolin as a sexually violent predator. On that same day, the trial court made an ex-parte finding that probable cause existed to detain Kolin pursuant to section 394.915(1), Florida Statutes (2000). Consequently, Kolin was detained pursuant to the Act after expiration of his criminal sentence.

Despite the statutory requirement that civil commitment trials be commenced within thirty days after entry of the court’s probable cause finding, the court set an initial trial date twenty-eight days after expiration of this thirty-day deadline. Aware of the issue, Kolin elected not to file a motion to dismiss. Instead, on the day of trial, he asserted the need for more preparation time and moved to continue. Kolin’s motion was granted, and a later trial date was set. Thereafter, for more than three years Kolin filed additional motions to continue as each trial date approached. At a March 10, 2005, docket sounding, prior to a March 14, 2005 trial date, Kolin filed yet another motion to continue, which was denied.

On the day of trial, March 14, 2005, Kolin, for the first time, raised the thirty-day deadline in a “Motion to Dismiss for Violation of Section 394.916(1).” The trial court denied the motion, finding that Ko-lin’s decision not to file the motion at or prior to the original trial date was a tactical decision for which there was no relief. The trial court also denied a separate motion to dismiss challenging the Act on constitutional grounds.

When his motions were denied, Kolin waived trial and executed a stipulated agreement for voluntary commitment. This appeal followed.

We find no reason to address the details of Kolin’s constitutional challenges to the Act, because the issues Kolin raises have already been decided by our appellate courts. See Westerheide v. State, 831 So.2d 93 (Fla.2002) (rejecting constitutional due process, equal protection, double jeopardy and ex post facto challenges to the Act); In re: Commitment of Cartwright, 870 So.2d 152 (Fla. 2d DCA 2004) (provision in Act allowing use of hearsay evidence in Jimmy Ryce proceedings does not violate separation of powers doctrine).

We also find no merit in Kolin’s procedural claim. The thirty-day deadline is not jurisdictional, Osborne v. State, 907 So.2d 505 (Fla.2005), and may be waived. Williams v. State, 909 So.2d 939 (Fla. 5th DCA 2005); Curry v. State, 880 So.2d 751 (Fla. 2d DCA 2004); Williams v. State; 870 So.2d 922 (Fla. 3d DCA 2004); State v. Kobel, 757 So.2d 556 (Fla. 4th DCA 2000). Further, section 394.916(2) of the Act provides for waiver of the deadline upon the trial court’s granting of a well-founded motion to continue. Additionally, the “Florida Rules of Civil Procedure apply to all civil commitment proceedings for sexually violent predators unless otherwise specified [in the Act].” Mitchell v. State, 911 So.2d 1211, 1213 (Fla.2005). Under these rules, a “party waives all defenses and objections that the party does not present .... in a responsive pleading.” Fla. R. Civ. P. 1.140(h). Kolin elected not to file a timely motion to dismiss, and failed to raise the thirty-day trial deadline in the answer he filed in response to the State’s petition. Therefore, under both the rule (by failure to raise the issue in a responsive pleading) and the statute (by moving to continue the trial), Kolin waived the thirty-day trial deadline. Because Kolin waived the initial thirty-day deadline, the trial court correctly denied Kolin’s motion to dismiss.

AFFIRMED.

SHARP, W., and TORPY, JJ., concur.

      . §§ 394.910-394.931, Fla. Stat. (2000).

      . The only constitutional claim not addressed in these cases is Kolin’s argument that the Act violates the separation of powers doctrine because it does not allow the courts to consider any less restrictive alternatives to commitment. In Westerheide, the Florida Supreme Court rejected a similar argument that the lack of any less restrictive alternatives to corn-mitment rendered the Act constitutionally infirm under the due process clause and the prohibitions against double jeopardy and ex post facto laws. The court explained that there was no constitutional violation for failure to include less restrictive alternatives because the Act was drafted in such a manner that it only applied to sexual predators so dangerous that commitment was the only appropriate alternative available to society. 831 So.2d at 103-105. "Thus, if the person is amenable to less restrictive alternative treatment he or she does not meet the statutory definition of a sexually violent predator and is not subject to commitment under the Ryce Act.” Id. at 103. For this same reason, we find no merit in Kolin's separation of powers argument.

      . Even after waiving the initial thirty-day deadline, a Jimmy Ryce respondent "can reassert his right to a trial within thirty days by filing a notice, motion or pleading, or making a request in open court that expressly and unequivocally demands a trial within thirty days pursuant to section 394.916(1).” Curry, 880 So.2d at 752. However, Kolin never reasserted his right to trial within thirty days until his final motion to continue was denied and his trial was about to commence.


author: ORFINGER, J.

text:
    James CARD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1460.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      James S. Purdy, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

James Card appeals his conviction for driving while his license was revoked as an habitual offender, in violation of section 322.34(5), Florida Statutes (2004). Card argues that driving records are testimonial hearsay; consequently, the rights guaranteed to him by the Confrontation Clause of the Sixth Amendment were violated when his driving record was introduced at trial without a showing that the records custodian of the Florida Department of Highway Safety and Motor Vehicles (“DHSMV”) was unavailable and that he had- a prior opportunity to cross-examine that person. We hold that a self-authenticating driving record is not testimonial hearsay and affirm Card’s conviction.

To. sustain a conviction under section 322.34(5), the State must prove,“(1) that while [the] defendant’s license was revoked as an ‘habitual offender’ (2) he drove a motor vehicle upon the highways of this state.” Arthur. v. State, 818 So.2d 589, 590 (Fla. 5th DCA 2002); see also Kirschner v. State, 915 So.2d 624, 625 (Fla. 2d DCA 2005). The State may prove revocation as an habitual traffic offender by presenting a certified copy of the defendant’s driving record maintained by DHSMV. Kirschner, 915 So.2d at 625.

Section 322.201, Florida Statutes (2004), makes driving records issued by DHSMV self-authenticating and admissible in evidence. " That provision notwithstanding, Card argues that the admission of his driving record without testimony from the records custodian violated his Sixth Amendment right to confrontation as explained in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In Crawford, the Supreme Court held that as a prerequisite to the introduction of testimonial hearsay evidence in a criminal trial, the witness who made the statement must be unavailable and the defendant must have had a prior opportunity to cross-examine that witness. However, Crawford made clear that the states have flexibility to develop their own laws governing the admission of non-testimonial hearsay. Id. at 68, 124 S.Ct. 1354. Consequently, the issue here is whether Card’s driving record was testimonial hearsay, such that its admission implicated his Sixth Amendment confrontation rights.

The Craioford court defined “testimony” as “[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact,” Id. at 51, 124 S.Ct. 1354, but “le[ft] for another day any effort to spell out a comprehensive definition of ‘testimonial.’ ” Id. at 68, 124 S.Ct. 1354. However, Crawford makes clear that testimonial hearsay “applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id.

Crawford also observed that “[m]ost of the hearsay exceptions covered statements that by their nature were not testimonial— for example, business records or statements in furtherance of a conspiracy.” Id. at 56, 124 S.Ct. 1354. Some courts have construed this language to mean that any evidence that falls under the business records exception is non-testimonial hearsay. See, e.g., State v. Kronich, 131 Wash.App. 537, 128 P.3d 119, 123 (2006) (holding that an order revoking defendant’s driver’s license and a letter from the Department of Licensing stating that the license had not been reinstated were business records, and, therefore, non-testimonial) (citing State v. N.M.K., 129 Wash.App. 155, 118 P.3d 368, 372 (2005) (determining that a letter from the Department of Licensing, which stated that defendant did not have a driver’s license, was non-testimonial because it proved the absence of a business record)); Riner v. Commonwealth, 268 Va. 296, 601 S.E.2d 555, 570 (2004) (holding that an entry in a pawn shop journal was not testimonial hearsay because it was a business record).

Other courts, notably some in Florida, have concluded that despite Crawford’s suggestion that all business records are non-testimonial, certain records, which by their nature are accusatory and describe criminal wrongdoing by a defendant, are testimonial even if otherwise admissible as business records, and, therefore, fall under Crawford’s proscriptions. For instance, in Johnson v. State, 929 So.2d 4, 2005 WL 3556038 (Fla. 2d DCA Dec. 30, 2005), the second district court held that a law enforcement lab report, which established the illegal nature of the substance that the defendant possessed and had been prepared pursuant to the police investigation and admitted to establish an element of the charged drug crime, was testimonial hearsay subject to the confrontation clause, even though the report was admitted at trial under the business record exception to the hearsay rule. In its opinion, the court explained:

The business records exception may have been the vehicle for admitting the report, but the vehicle does not determine the nature of the out-of-court statement. The nature of the statement is one that is intended to lodge a criminal accusation against a defendant — in other words, it is testimonial. The out-of-court statement does not lose its testimonial nature merely because it is contained in a business record.

929 So.2d at 8. See also Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006) (holding that breath-test affidavit written by technician who did not testify was testimonial hearsay because its purpose was clearly for use at trial); Shiver v. State, 900 So.2d 615, 618 (Fla. 1st DCA 2005) (concluding that breath-test affidavit was testimonial hearsay because “the only reason the affidavit was prepared was for admission at trial”).

Most recently, in Sproule v. State, 927 So.2d 46, 2006 WL 782483 (Fla. 4th DCA Mar. 29, 2006), the fourth district court held that a driving record is not testimonial in nature, and, therefore, falls outside Crawford’s proscriptions. We agree. A driving record properly authenticated by the DHSMV does not seem to us to be testimonial because it is not accusatory and does not describe specific criminal wrongdoing of the defendant. Rather, it merely represents the objective result of a public records search.

Driving records are kept in Florida for the public benefit and are not solely prepared for trial purposes. A driving record contains neither expressions of opinion nor conclusions requiring the exercise of discretion, and is not made or kept for law enforcement or trial purposes. Thus, it clearly falls within the type of hearsay recognized in Crawford that is admissible in a criminal trial without implicating the defendant’s confrontation rights. See also Peterson v. State, 911 So.2d 184 (Fla. 1st DCA 2005) (holding that Department of Correction’s business records are not testimonial); Desue v. State, 908 So.2d 1116 (Fla. 1st DCA 2005) (holding that computer printout, called a “Crime and Time Report,” was admissible under business records exception to hearsay rule to establish defendant’s prison release date for purposes of prison releasee reoffender sentencing and was not testimonial under Crawford).

The Supreme Court made clear in Crawford that the “principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.” 541 U.S. at 50, 124 S.Ct. 1354. The driving record used in evidence at Card’s trial was not obtained in a manner even remotely resembling an ex parte examination. While the developing case law informs us that some business records may be testimonial hearsay, while others are not, here, we have no difficulty in concluding that Card’s driving record was not testimonial hearsay. Accordingly, we affirm the judgment of the trial court.

AFFIRMED.

PLEUS, C.J., and SAWAYA, J., concur.

      . Specifically, that statute provides:
      322.201 Records as evidence. — A copy, computer copy, or transcript of all abstracts of crash reports and all abstracts of court records of convictions received by the department and the complete driving record of any individual duly certified by machine imprint of the department or by machine imprint of the clerk of a court shall be received as evidence in all courts of this state without further authentication, provided the same is otherwise admissible in evidence. Further, any court or the office of the clerk of any court of this state which is electronically connected by a terminal device to the computer data center of the department may use as evidence in any case the information obtained by this device from the records of the department without need of such certification; however, if a genuine issue as to the authenticity of such information is raised by a party or by the court, the court in its sound discretion may require that a record certified by the department be submitted for admission into evidence. For such computer copies generated by a terminal device of a court or clerk of court, entry in a, driver’s record that the notice required by s. 322.251 was given shall constitute sufficient evidence that such notice was given.
      § 322.201, Fla. Stat. (2004).

      . The Sixth Amendment Confrontation Clause guarantees that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” U.S. Const, amend. VI.

      . Florida has dealt with the hearsay issue in this case in sections 322.201 (driving records), 90.803(6) (business records), and 90.803(8) (public records).

      . Section 322.202(1), Florida Statutes (2004), entitled "Admission of evidence obtained from the Division of Driver Licenses and the Division of Motor Vehicles,” provides:
      The Legislature finds that the Division of Driver Licenses and the Division of Motor Vehicles of the Department of Highway Safety and Motor Vehicles are not law enforcement agencies. The Legislature also finds that the divisions are not adjuncts of any law enforcement agency in that employees have no stake in particular prosecutions. The Legislature further finds that errors in records maintained by the divisions are not within the collective knowledge of any law enforcement agency. The Legislature also finds that the missions of the Division of Driver Licenses, the Division of Motor Vehicles, and the Department of Highway Safety and Motor Vehicles provide a sufficient incentive to maintain records in a current and correct fashion.


author: PER CURIAM.

text:
    Ronald EDMUNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-131.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Espinosa, 686 So.2d 1345, 1348-49 (Fla.1996) (holding a defendant who requests an instruction on a lesser-included offense cannot contest the sufficiency of the evidence on the lesser-included offense when sufficient evidence exists to convict the defendant for the greater offense).

THOMPSON, GRIFFIN and ORFINGER, JJ., concur.


author: SAWAYA, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. A.S. and W.S., Parents of R.S., a Child, Appellees.
    No. 5D05-2906.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      Ralph J. McMurphy, of the Department of Children and Families, Wildwood, for Appellant.
    Diana K. Simpson, Ocala, for Appellee W.S.
    Carol Ann Volini, Ocala, for Appellee A.S.
    Patricia M. Propheter, Florida Guardian Ad Litem Program, Orlando.
   SAWAYA, J.

In termination of parental rights proceedings, the Department of Children and Families (hereinafter “the Department”) may petition for termination on the ground that “the parental rights of the parent to a sibling have been terminated involuntarily.” § 39.806(1)®, Fla. Stat. (2005) (emphasis added). The question here is whether parental rights are “involuntarily” terminated within the meaning of section 39.806(1)® when the parents fail to appear for the adjudicatory hearing and the trial court enters the termination order pursuant to section 39.801(3)(d), Florida Statutes (2005), which provides in pertinent part that “failure of [the] parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.” (Emphasis added). We hold that the presumed, implied, or constructive consent that is imposed under section 39.801(3)(d) when a parent fails to personally appear at the adjudicatory hearing does not transform that involuntary proceeding into a voluntary proceeding. Thus, in a subsequent termination proceeding the Department may properly allege section 39.806(1)® as grounds for termination.

The facts present a sad story that we see far too often in termination cases — a mother and father unable to properly care for their children because the drugs to which they are addicted severely impair their judgment and ability to exercise basic parenting skills. A.S., the mother, gave birth to three children prior to the birth of R.S., the child that is the subject of the instant termination proceeding. Because A.S.’s first child, B.W., was born when A.S. was only fourteen years old, A.S.’s mother undertook the responsibility of rearing B.W. and eventually moved out of state with this child. Several years later, A.S. married and had her second child, S.H. Although no details were given as to the demise of this family, it appears A.S. and the father of S.H. divorced, and the father was given custody of S.H.

At some point in time, A.S. became heavily involved in the use of cocaine. She also met W.S. and, from this union, A.P. was born. Unfortunately, A.P. tested positive for cocaine at birth and shortly thereafter was- sheltered. Dependency proceedings were initiated and A.S. and W.S., who subsequently married, failed to comply with their case plan and their parental rights to A.P. were terminated after they failed to appear at the adjudicatory hearing. The final judgment emanating from the trial court provided that A.S. and W.S. consented to the termination pursuant to section 39.801(3)(d) and set forth detailed factual findings regarding the neglect of A.P. by both A.S. and W.S., as well as their failure to comply with the case plan.

Several years later, R.S. was born to A.S. and W.S. As a result of both parents’ history of drug abuse, criminal charges, unstable housing, and prior involvement with the Department, the Department immediately removed the child from the parents’ care and filed a petition for dependency and termination of parental rights based upon section 39.806(l)(i).

The trial court adjudicated R.S. dependent, but dismissed the petition to .terminate the parents’ rights, finding the previous order terminating their rights to A.P. was based on consent and thus could not form a basis for termination under section 39.806(l)(i). Discontent with this ruling, the Department appeals, arguing that the trial court erred as a matter of law in holding that the implied, constructive, or presumed consent imposed pursuant to section 39.801(3)(d) in A.P.’s case necessarily transformed that involuntary termination proceeding into a voluntary proceeding, thereby requiring dismissal of the Department’s petition in the case concerning R.S.

“An order dismissing a petition for termination of parental rights is a mixed question of law and fact which will be sustained on review if the court applied the correct law, and its ruling is supported by competent substantial evidence in the record.” Dep’t of Children & Families v. K.P., 858 So.2d 1137, 1137 (Fla. 5th DCA 2003) (citing In re M.F., 770 So.2d 1189 (Fla.2000)). Here, competent substantial evidence supports the finding that A.S. and W.S. both failed to appear at the adjudicatory hearing regarding the termination of their parental rights as to A.P., and neither parent contends otherwise. Hence we must resolve a legal issue that requires us to analyze the interplay between sections 39.801(3)(d) and 39.806(l)(i) to determine whether consent under the former statute renders the proceedings voluntary, thereby precluding termination under the latter.

A.S. and W.S. advert to definitions of the terms “consent,” “voluntary,” and “involuntary” and rely heavily on perceived similarities between the first two and the opposite meaning of the latter. Reducing their arguments to their essence, “consent” means voluntary and is, therefore, the antithesis of “involuntary.” Carrying this argument to its logical conclusion, they contend that consent under section 39.801(3)(d) transforms an otherwise involuntary proceeding into a voluntary proceeding. But we do not believe that a thorough analysis of the issue before us begins and ends with consideration of definitions of these terms extracted from randomly chosen dictionaries, although we certainly recognize that such definitions can be helpful in many instances. See Rollins v. Pizzarelli, 761 So.2d 294 (Fla.2000). Rather, we must search for the intended meaning of the pertinent statutory provisions and, in order to accomplish this task, we must consider the statutory provisions in pari materia and construe them in harmony with one another. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452 (Fla.1992); G.E.L. Corp. v. Dep’t of Envtl. Prot., 875 So.2d 1257 (Fla. 5th DCA 2004).

Our analysis begins with the provisions of section 39.806(1), Florida Statutes (2005), which establish the grounds for termination of parental rights. Specifically, it provides that “[t]he department, the guardian ad litem, or any person who has knowledge of the facts alleged or who is informed of those facts and believes that they are true may petition for the termination of parental rights under any of the following circumstances.... ” § 39.806(1), Fla. Stat. (2005) (emphasis added). Nine grounds are specifically listed and because any one of them may be sufficient for termination, each is separate and distinct. See § 39.806(l)(a)-(i), Fla. Stat. (2005). Of these nine separate and distinct grounds, voluntary terminations are specifically provided for under section 39.806(l)(a); the remaining eight grounds, including terminations under section 39.806(l)(i), are involuntary. Hence, the Legislature certainly knows the difference between voluntary and involuntary termination and has provided specific provisions for each.

Conspicuously absent from the provisions of section 39.806(1) as a ground for voluntary termination is consent under section 39.801(3)(d), and for good reason: the Legislature never intended for consent under section 39.801(3)(d) to be a ground for termination. Rather, section 39.801(3)(d) and its implementing rule, found in Florida Rule of Juvenile Procedure 8.525, are “intended to ensure that the object of the termination petition is not defeated by the neglect of the proceeding by the parent.” E.A. v. Dep’t of Children & Families, 894 So.2d 1049, 1051 (Fla. 5th DCA 2005). We believe that if the Legislature intended for consent under 39.801(3)(d) to transform an involuntary proceeding into a voluntary proceeding, it surely would have said so.- It did not.

Further analysis reveals that voluntary termination under section 39.806(l)(a) requires consent by the parents that is altogether different from consent under section 39.801(3)(d). Specifically, consent under section 39.801(3)(d) is implied, presumed, or constructive consent that derives from the parent’s failure to appear. See In re A.N.D., 883 So.2d 910, 913 n. 2 (Fla. 2d DCA 2004) (“[T]he statutes and rules refer to a parent’s ‘consent.’ Because this consent occurs through implication, it may be referred to as ‘presumed consent,’ ‘implied consent,’ or ‘constructive consent.’”); S.C. v. Dep’t of Children & Families, 877 So.2d 831, 832 (Fla. 4th DCA 2004) (“Further, section 39.801(3)(d), Florida Statutes, and Florida Rule of Juvenile Procedure 8.510(a)(3), provide statutory and procedural authority for the court to accept a parent’s failure to appear at an advisory hearing as constructive consent to termination of parental rights by default.”). A voluntary termination proceeding, on the other hand, leaves nothing to presume, imply, or establish constructively because the voluntary surrender must be clear, expressed, unequivocal, and emanate directly from the parent. See T.C.B. v. Florida Dep’t of Children & Families, 816 So.2d 194, 196-97 (Fla. 1st DCA 2002) (“We, interpret the legislative intent behind section 39.806(l)(a), Florida Statutes, to permit a parent to seek termination of his or her parental rights by voluntarily and unequivocally surrendering his or her children to the State.”).

For example, in C.B. v. B.C., 851 So.2d 847, 848 (Fla. 5th DCA 2003), we recognized that Florida Rules of Juvenile Procedure 8.500(g) and 8.520(c) “are two rules of juvenile procedure that speak to a parent’s voluntary relinquishment of parental rights in the course of a termination proceeding.” The requirements of these rules are fulfilled by the inquiry made of the parents by the trial court as to the specific rights they relinquish, which is usually made a part of the record or reduced to writing. When a parent fails to attend an adjudicatory hearing and the trial court enters a judgment based on consent, there are no similar requirements; consent is simply implied or presumed to prevent the parents from improperly manipulating, prolonging, or neglecting the proceedings.

Moreover, consent under section 39.801(3)(d) does not end the judicial labor of the trial court; it must then proceed to receive evidence to support the grounds alleged in the petition for termination. See R.H. v. Dep’t of Children & Family Servs., 860 So.2d 986 (Fla. 3rd DCA 2003); J.T. v. Dep’t of Children & Families, 800 So.2d 692, 693 (Fla. 5th DCA 2001). In J.T., for example, this court refused to set aside a final judgment based on parental implied consent under section 39.801(3)(d) because evidence was admitted at the adjudicatory hearing to support the grounds for termination alleged by .the Department. We explained:

The parents’ reliance on In re E.L., 732 So.2d 37 (Fla. 2d DCA 1999) is misplaced. In E.L., the mother’s counsel did not concede that his client had been notified of the hearing. Equally important, in E.L., the court terminated parental rights based solely upon the mother’s default in failing to appear at the hearing. See § 39.801(3)(d), Fla. Stat. Here, the court took testimony and found that termination was proper, irrespective of the parents’ non-appearance, given the evidence of their failure to substantially comply with the case plans and their failure to remedy the conditions which led to the children’s removal from their care. The termination was not predicated simply upon the parents’ default.

Id. at 693. In R.H., the court cited J.T. and reached the opposite result based on the same reasoning. The trial court did not hold an evidentiary hearing, but simply entered final judgment terminating parental rights on the implied consent of the parents under section 39.801(3)(d) and the documents filed by the Department. In setting aside the final judgment, the court explained, “Finally, and most importantly, the trial court erred when it terminated the father’s parental rights without the taking of any evidence in support of such termination.” 860 So.2d at 988. Wé believe that consent under section 39.801(3)(d) allows the involuntary proceedings to proceed without the presence of the parents and does not alleviate the need for evidence to support the grounds alleged in the petition.

Based on the preceding analysis, we conclude that the Legislature never intended that presumed, implied, or constructive consent under section 39.801(3)(d) transforms an involuntary proceeding into one that is voluntary. We believe that our construction gives full effect to all of the pertinent statutory provisions and construes them in harmony with one another. Accordingly, we reverse that part of the trial court’s order dismissing the defendant’s petition alleging grounds for termination under section 39.806(l)(i), and we remand the case to the trial court for further proceedings.

We acknowledge that our opinion conflicts with the decisions of the Second District Court in In re A.D.C., 854 So.2d 720 (Fla. 2d DCA 2003), and In re T.S., 855 So.2d 679 (Fla. 2d DCA 2003), disagreed with on other grounds by Florida Dep’t of Children & Families v. F.L., 880 So.2d 602 (Fla.2004) (addressing the constitutionality of section 39.806(1)®). Accordingly, we certify direct conflict with those decisions.

AFFIRMED in part; REVERSED in part; REMANDED.

PLEUS, C.J., and ORFINGER, J., concur.

      . The order also terminated A.S.'s parental rights to her first child, B.W.

      . The Department also alleged as an alternative ground that termination was proper based on section 39.806(l)(c). The trial court held that the Department had failed to meet its burden to justify termination under this statute. We affirm that ruling without further discussion.


author: PALMER, J.

text:
    Daniel Eugene BUCHANAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1797.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      William J. Sheppard and D. Gray Thomas of Sheppard, White, Thomas Kacher-gus, P.A., Jacksonville, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Daniel Buchanan (defendant) appeals his judgment and sentence which were entered by the trial court after a jury found him guilty of committing the crime of aggravated battery with a firearm. Concluding that the trial court erred in restricting the defendant to six peremptory challenges during jury selection, we reverse.

The defendant was charged with committing the offense of aggravated battery with a firearm in violation of section 784.045 of the Florida Statutes. The information was later amended to specifically allege that, as a result of the defendant’s discharge of a firearm, great bodily harm was inflicted upon the victim, thus enabling the State to apply Florida’s 10-20-Life sentencing enhancement statute, as set forth in section 775.087 of the Florida Statutes.

The evidence at trial demonstrated that the defendant is a bail bondsman and the victim, Kevin Brinson, was one of the defendant’s clients who had jumped bail. The evidence revealed that as Buchanan was attempting to apprehend Brinson, Brinson attempted to exit a car by climbing over the driver’s seat, at which time Buchanan shot Brinson in the buttocks, severely injuring him.

The jury found the defendant guilty as charged. The trial court thereafter entered judgment in accordance with the jury’s verdict and sentenced the defendant to a mandatory minimum term of 25 years’ imprisonment pursuant to Florida’s 10-20-Life statute.

In challenging his conviction, the defendant first argues that the trial court erred in denying his pre-trial motion to dismiss. He argued below that dismissal was warranted because, as a matter of law, he was privileged to shoot Brinson since, as a bail bondsman, he possessed a common law privilege to “use whatever means necessary to affect the surrender” of Brin-son. He further argued that, in addition to the common law privilege, the Florida Statutes authorized him to use any force which he deemed reasonable to apprehend Brinson, citing to section 776.07 of the Florida Statutes (2005) to support this claim. The statute reads, in pertinent part:

776.07. Use of force to prevent escape (1) A law enforcement officer or other person who has an arrested person in his or her custody is justified in the use of any force which he or she reasonably believes to be necessary to prevent the escape of the arrested person from custody.

§ 776.07(1), Fla. Stat. (2005). The trial court properly rejected both arguments as meritless.

First, as the trial court aptly noted, there is no case law in Florida which supports the defendant’s contention that, as a matter of law, bail bondsmen possess a common law privilege to use whatever force necessary, including deadly force, to effect the surrender of a person who has jumped bail. In Register v. Barton, 75 So.2d 187 (Fla.1954), our Supreme Court generally recognized the principle that a person “under bail is in the vicarious custody of his bondsman whose ‘dominion is a continuance of the original imprisonment,’ and the principal may be apprehended by his bondsman even under extreme circumstances.” However, the Register court did not speak to the issue of what level of force a bail bondsman is entitled to use in an effort to capture a fugitive.

Having found no Florida ease law which supports the defendant’s claim of unfettered privilege to use deadly force when seeking to capture a fugitive, we conclude the trial court properly ruled that dismissal of the instant information was not warranted on said basis. See generally Bennett v. State, 169 Ga.App. 85, 311 S.E.2d 513 (1983)(holding that bail bondsman may not shoot accused to prevent his escape by flight, but he may, to overcome declared, open, and armed resistance to execution of warrant, use such force as may be reasonably necessary to effect the arrest). See also Commonwealth v. Cabral, 443 Mass. 171, 819 N.E.2d 951 (2005)(explaining that surety’s authority is to use only that force that an ordinary, prudent, and intelligent person with the surety’s knowledge would have believed necessary in the circumstances to capture and surrender the principal); State v. Haskins, 160 N.C.App. 349, 585 S.E.2d 766 (2003)(explaining that a surety can use reasonable force in apprehending a fugitive).

Next, as for the defendant’s claim that application of the provisions of section 776.07(1) of the Florida Statutes warranted the pre-trial dismissal of the instant information, the trial court properly rejected this claim as well. During the hearing on the defendant’s dismissal motion, the State advised the trial court that it was prepared to present evidence indicating that the shooting of Brinson by the defendant was in retaliation for Brinson’s repeated refusal to surrender. Based on this information, the court properly recognized that dismissal was not warranted because a jury question existed.

In a related claim, the defendant argues that the trial court erred in denying his request for a special jury instruction regarding his justification defense, asserting that his requested instruction should have been given because it contained a proper statement of the law and was supported by the evidence. We disagree.

A trial court has wide discretion in instructing the jury, and the court’s decision regarding the charge to the jury is reviewed with a presumption of correctness on appeal. Carpenter v. State, 785 So.2d 1182 (Fla.2001). In order to be entitled to receive a special jury instruction, the defendant must prove:

(1) the special instruction was supported by the evidence; (2) the standard instruction did not adequately cover the theory of defense; and (3) the special instruction was a correct statement of the law and not misleading or confusing.

Stephens v. State, 787 So.2d 747, 756 (Fla.2001)(footnotes omitted).

Here, the defendant requested that the trial court issue the following special instruction to the jury:

A duly licensed bail bondsman need not retreat from or stop efforts to make surrender of a bailee because of resistance or threatened resistance to the surrender or detention. The bail bondsman is justified in the use of any force that he reasonably believes necessary [to] defend himself or another from bodily harm while making surrender. That force is justifiable when necessary in surrendering a bailee on his bond.

This language closely tracks the language set forth in section 776.05 of the Florida Statutes. That statute reads:

776.05. Law enforcement officers; use of force in making an arrest
A law enforcement officer, or any person whom the officer has summoned or directed to assist him or her, need not retreat or desist from efforts to make a lawful arrest because of resistance or threatened resistance to the arrest. The officer is justified in the use of any force:
(1) Which he or she reasonably believes to be necessary to defend himself or herself or another from bodily harm while making the arrest;
(2) When necessarily committed in retaking felons who have escaped.

§ 776.05, Fla. Stat. (2005).

However, section 776.05 did not apply to the facts presented in this case since the defendant was neither a law enforcement officer nor a person whom the officer had summoned or directed to provide assistance. Accordingly, the trial court did not abuse its discretion in refusing to instruct the jury based upon this inapplicable statute.

The defendant next argues that the trial court erred in restricting him to only six peremptory challenges during jury selection when he was legally entitled to receive ten peremptory challenges. We agree.

As noted above, the defendant was charged with committing the offense of aggravated battery with a firearm, in violation of section 784.045 of the Florida Statutes. Section 784.045 defines the offense as being a second degree felony.

Pursuant to rule 3.350 of the Florida Rules of Criminal Procedure, defendants who are charged with committing second degree felonies are generally entitled to receive only six peremptory challenges during jury selection, while ten peremptory challenges are afforded to defendants facing charges punishable by death or imprisonment for life:

Rule 3.350. Peremptory Challenges
(a)Number. Each party shall be allowed the following number of peremptory challenges:
(1) Felonies Punishable by Death or Imprisonment for Life. Ten, if the offense charged is punishable by death or imprisonment for life.
(2) All Other Felonies. Six, if the offense charged is a felony not punishable by death or imprisonment for life.
(3) Misdemeanors. Three, if the offense charged is a misdemeanor.

Fla. R.Crim. P. 3.350. Section 913.08 of the Florida Statutes (2005) is in accord:

913.08. Number of peremptory challenges
(1) The state and the defendant shall each be allowed the following number of peremptory challenges:
(a) Ten, if the offense charged is punishable by death or imprisonment for life;
(b) Six, if the offense charged is punishable by imprisonment for more than 12 months but is not punishable by death or imprisonment for life;
(c) Three, for all other offenses....

§ 913.08(1), Fla. Stat. (2005).

In this case, confusion arose concerning the proper number of peremptory challenges available to the defendant because the information which was filed against the defendant alleged additional facts that enabled the State to seek application of the sentencing enhancement provisions of Florida’s “10-20-Life” statute. Specifically, the information averred that the defendant discharged a firearm and, as a result of said discharge, great bodily harm was inflicted upon the victim. The enhancement statute reads:

775.087. Possession or use of weapon; aggravated battery; felony reclassification; minimum sentence
(2) (a) 1. Any person who is convicted of a felony or an attempt to commit a felony, regardless of whether the use of a weapon is an element of the felony, and the conviction was for:
g. Aggravated battery;
* * ⅜
3. Any person who is convicted of a felony or an attempt to commit a felony listed in sub-subparagraphs (a)l.a.-q., regardless of whether the use of a weapon is an element of the felony, and during the course of the commission of the felony such person discharged a “firearm” or “destructive device” as defined in s. 790.001 and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.

§ 775.087(2)(a), Fla. Stat. (2005)(emphasis added).

By placing language in the information which implicated the applicability of Florida’s “10-20-Life” statute, the State placed the issue concerning the length of the defendant’s potential sentence before the jury to decide because it was for the jury to determine whether or not the defendant caused great bodily harm to the victim. If so, then the defendant would face the prospect of being sentenced to a term of life imprisonment.

The defendant raised this argument to the trial court prior to jury selection by specifically requesting that the trial court grant him ten peremptory challenges. The State objected, arguing that only six peremptory challenges were warranted because the underlying crime, aggravated battery, was a second degree felony not punishable by life imprisonment. The State also argued that the defendant was only entitled to receive six peremptory challenges because it would not be seeking a sentence of life imprisonment.

Upon consideration, the trial court ruled:

Well, a 25-year minimum is not life, therefore I would say he’s not entitled to the ten, and is entitled to only six. So the State is not seeking life in prison and I can tell you that I wouldn’t give him life in prison, therefore life — so based on that I am going to find that he is entitled to only six peremptories rather than ten.

The court also cited to Smellie v. State, 720 So.2d 1131 (Fla. 4th DCA 1998) to support its ruling. In Smellie, the Fourth District held that State’s pre-trial filing of its notice of intent to seek habitual offender sentencing did not entitle the defendant to receive ten peremptory challenges. We must determine whether the trial court’s reliance on Smellie v. State, 720 So.2d 1131 (Fla. 4th DCA 1998), was proper.

In Smellie, the defendant argued that he was entitled to receive ten peremptory challenges because at the time of jury selection the State had already filed notice of its intent to have him declared an habitual felony offender, thereby making the offense with which he was charged punishable by life imprisonment. The Fourth District disagreed:

We agree with Inmon v. State, 383 So.2d 1103 (Fla. 2d DCA), review denied, 389 So.2d 1111 (Fla.1980), which held that the State’s filing of its notice of intent to seek an habitual offender sentence enhancement prior to trial does not serve to increase the number of peremptory challenges a defendant would otherwise be permitted based on the “offense charged.” Appellant’s interpretation of the statute would lead to the incongruous result of allowing a defendant whose notice to habitualize was filed prior to jury selection ten peremptory challenges, while a defendant facing the same permissible life sentence whose notice is filed at a later stage of the proceeding would only have six. We interpret section 913.08(l)(a)’s reference to the punishment for the “offense charged” to pertain to the statutory maximum for the charged offense without habitual offender enhancement.

Id. at 1132.

We conclude that the ruling in Smellie is not controlling here because the facts in the two cases differ. In Smellie, the defendant faced the prospect of receiving a life sentence based solely upon the trial court’s determination of whether he qualified for habitual offender sentencing. In contrast, here the defendant faced the prospect of receiving a life sentence based solely upon the jury’s factual determination of whether the defendant inflicted serious injury on the victim. Stated differently, the jury in Smellie possessed no ability to impact the determination as to whether a life sentence would be imposed on the defendant, whereas in the instant case the jury was solely responsible for determining whether the defendant would be facing the prospect of receiving a term of life imprisonment. As such, the defendant was statutorily entitled to receive ten peremptory challenges because he was charged with committing a felony which was punishable by life imprisonment.

As for the trial court’s reasoning that the defendant was not entitled to receive ten peremptory challenges because the court did not intend to impose a life sentence, the defendant is correct in arguing that no statutory or case law exists which supports this reasoning. The statute and rule are clear: A defendant who is charged with a felony which is punishable by imprisonment for life is entitled to receive ten peremptory challenges.

The last issue with regard to the peremptory challenges is whether, as the State maintains, the error is harmless because the trial court kept its word and did not impose a life sentence. No legal support exists for such a construction of the statute or rule, and basic notions of due process support strict enforcement of the statutorily-mandated rules regarding the number of challenges which are available in the various types of prosecutions.

The trial court’s denial of defendant’s request for ten peremptory challenges was reversible error. Accordingly, the defendant’s judgment and sentence are vacated, and this case is remanded for a new trial.

Defendant’s additional arguments on appeal are without merit.

REVERSED and REMANDED.

ORFINGER and MONACO, JJ., concur.

      . The defendant properly preserved this issue for appellate review because he placed the issue squarely before the trial court for resolution prior to the start of the jury selection process. Compare Dante v. State, 903 So.2d 293 (Fla. 3d DCA 2005)(holding that defendant failed to preserve for appellate review his claim that the trial court erred by only allowing him only three peremptory challenges when he was entitled to six when he did not assert that he was entitled to receive six challenges, and he accepted the jury without objection).


author: TORPY, J.

text:
    Ernest L. MARCONI, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-1751.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   TORPY, J.

In this cocaine possession case, Appellant challenges the lower court’s order denying his motion to suppress the evidence. Concluding that the police officer lacked probable cause for the warrantless search and seizure of Appellant, we reverse. Huntley v. State, 575 So.2d 285 (Fla. 5th DCA 1991); Walker v. State, 846 So.2d 643 (Fla. 2d DCA 2003).

REVERSED.

SHARP, W. and LAWSON, JJ., concur.


text:
    C.R., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2147.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See T.J. v. State, 867 So.2d 1238 (Fla. 5th DCA 2004) (stating even a student with special needs may violate section 877.13, Florida Statutes, if he disrupts an educational institution’s functions by shouting, yelling, and refusing to calm down when so instructed by school personnel and a school security officer).

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    Jeffrey WAGNER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-4075.
    District Court of Appeal of Florida, First District.
    May 2, 2006.

      Jeffrey Wagner, pro se, appellant.
    Charlie Crist, Attorney General, and Warren James Pearson, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Upon consideration of appellant’s response to the court’s September 27, 2005, order to show cause, the court has determined that the lower tribunal’s July 22, 2005, order is not an appealable order. See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

Upon filing of the notice of appeal in this cause, the circuit court assessed certain costs and fees associated with the appeal and directed the Florida Department of Corrections to impose a lien against appellant’s inmate trust account to recover those costs and fees. Appellant moves for review of that order and we have jurisdiction to act on the motion under the provisions of Florida Rule of Appellate Procedure 9.430(a).

In his circuit court mandamus action, appellant challenges a disciplinary action taken against him by the Florida Department of Corrections which resulted in forfeiture of gain time. Thus, it is a collateral criminal proceeding in which indigency determinations are to be made in accordance with section 57.081, Florida Statutes. Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). In Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005), this court noted that section 57.081, unlike section 57.085, does not contain statutory language authorizing imposition of a lien and found that a lien in this circumstance was not permissible. Appellee opposes the motion and relies upon certain recent amendments to sections 57.082(5) and 28.246(4) to support its theory that a lien can now be utilized to recover fees and costs in an action governed by section 57.081. We disagree. These statutes concern the participation by a party to circuit court litigation in a “payment plan” to recoup the funds. A payment plan is to be distinguished from a lien, which is a qualified right or proprietary interest which may be exercised over the property of another. City of Sanford v. McClelland, 121 Fla. 253, 163 So. 513 (1935). The Florida Legislature has demonstrated in section 57.085(5) its awareness of the language necessary to authorize imposition of a lien, and such language does not appear in section 57.081 or the other statutes relied upon by appellee in opposing appellant’s motion for review. We therefore grant the motion and quash that portion of the circuit court’s order of September 8, 2005, which authorized the Department of Corrections to impose a lien against appellant’s trust account.

APPEAL DISMISSED; MOTION FOR REVIEW GRANTED.

KAHN, C.J., WEBSTER and POLSTON, JJ., concur.


text:
    Gary Russell CLAYTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0507.
    District Court of Appeal of Florida, First District.
    May 2, 2006.
    Gary Russell Clayton, pro se, Petitioner.
    Charlie Crist, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the order denying his motion for postconviction relief rendered on September 6, 2005, in Alachua County Circuit Court case number 01-1999-CF-2109-A. Upon issuance of mandate in this case, a copy shall be provided to the clerk of the circuit court for treatment as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    The JUSTICE ADMINISTRATIVE COMMISSION, a state agency, Petitioner, v. David NEIGHBORS, Respondents.
    No. 1D05-6046.
    District Court of Appeal of Florida, First District.
    May 2, 2006.

      Michael P. Reiter, Assistant Attorney, The Justice Administrative Commission, Tallahassee, Attorney for Petitioner.
    Garry D. Adel of Blanchard, Merriam, Adel & Kirkland, P.A., Ocala, Attorney for Respondent.
   PER CURIAM.

In this petition for writ of certiorari, the Justice Administrative Commission (“the Commission”) seeks review of the circuit court’s order directing the Commission to pay $4,767.00 in costs based on a prior certification of taxable costs. Because the circuit court’s order departed from the essential requirements of the law, we grant the petition.

In the certification of taxable costs, the circuit court certified that Respondent was entitled to reimbursement for deposition transcription fees, video deposition fees, process service fees, witness fees, expert witness fees, and fees for transcription of excerpts of trial. The circuit court entered a separate order directing the Commission to pay these certified costs. However, section 939.06, Florida Statutes (2004), authorizes reimbursement only for witness fees, sheriff expenses, and clerk of the court expenses. Wolf v. County of Volusia, 703 So.2d 1033, 1034 (Fla.1998). Based on the decision in Wolf, the circuit court departed from the essential requirements of the law by certifying non-qualifying costs and directing the Commission to pay those costs. We, therefore, grant the petition for writ of certiorari and vacate the circuit court’s order directing the Commission to pay $4,767.00. On remand, the circuit court is directed to certify only those costs consistent with this opinion.

The petition is GRANTED, the circuit court’s order is VACATED, and the cause is REMANDED with instructions.

BENTON, POLSTON and THOMAS, JJ., concur.


text:
    B.M.B., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2957.
    District Court of Appeal of Florida, Second District.
    May 3, 2006.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

B.M.B. appeals her adjudication for poisoning food or water with intent to kill or injure, a violation of section 859.01, Florida Statutes (2004). We conclude that the trial court erred in concluding that B.M.B. knowingly and voluntarily waived her Miranda rights. Accordingly, the trial court erred in denying the motion to suppress her confession. We reverse and remand for a new trial.

On April 15, 2005, at the beginning of her sixth-period class, the music teacher at Franklin Middle School smelled a strange, chemical odor emanating from her lemonade. She took a single sip and noticed that it tasted like alcohol. After noticing that her bottle of whiteboard cleaning solution was almost empty, she concluded that her lemonade had been contaminated with the solution. She threw the cup of lemonade in the trash, finished teaching sixth period, and then went to the emergency-room. Someone at the emergency room called the Tampa Police Department to report the incident. An officer met the music teacher at the emergency room to get information and to file a police report. The music teacher was discharged from the emergency room the same day without having suffered any harmful physical effects.

The music teacher decided that someone had contaminated her lemonade with whiteboard cleaning solution at the end of her fifth-period class when she had left the cup of lemonade unattended and sitting next to the whiteboard cleaner on top of her piano. The music teacher made a list of six students who were possible suspects because they had been unsupervised for a brief time in the room with her lemonade.

The investigation into the matter was not conducted by the school’s resource officer. Instead, a Tampa police detective was given the police report to conduct an investigation. It is worth considering whether this case would have been handled differently if it had been handled by the school resource officer and assistant principal. The detective was dressed in plain clothes but had his badge and gun visible. He set himself up in an office at the school and conducted individual, five-minute interviews with each of the six suspected students. He told the students he was investigating the incident but used this time principally to gather background information and to identify the person responsible.

At some point, the detective became suspicious of B.M.B., a fourteen-year-old girl with no prior contact with law enforcement. Thus, he decided to conduct a second, more thorough interview with her. The second interview was tape-recorded and lasted about fifteen minutes. B.M.B.’s parents were never contacted regarding the incident, B.M.B.’s involvement, or the investigation.

The detective did not read B.M.B. her Miranda warnings prior to conducting the second interview. He, began discussing B.M.B.’s personal and family life with her, presumably to relax her. He then began questioning B.M.B. about the incident. He asked her how she knew the cup contained lemonade and misrepresented to her that people witnessed her putting “something” into the cup. B.M.B. repeatedly denied putting anything in the lemonade, to ydiich the detective responded, “We think you did.” He asked her why she would “do something like that” and then suggested that maybe she did it because she was upset at the teacher or that it was just a joke or a prank.

The detective told B.M.B. that he had evidence that she committed the crime and then attempted to justify the contamination by stating, “If you took some stuff and you poured it in there and you thought it would just make it taste bad, then nobody would get hurt, you know, because you were mad.” After B.M.B. continued to deny any involvement, he then told her, “Nobody’s saying anything’s going to happen to you but all we need just to do is get to the bottom of this and find out exactly what happened.”

The detective then turned off the tape recorder. He testified that he orally administered B.M.B. Miranda warnings. When he resumed recording, B.M.B. confessed to squirting some of the liquid into the teacher’s lemonade. Based primarily on this confession, B.M.B. was found delinquent for the offense of poisoning with intent to kill or injure.

The detective correctly decided that B.M.B. was in custody for Fifth Amendment purposes when he decided to give Miranda warnings. We agree that the evidence in this case indisputably leads to the conclusion that B.M.B. was subjected to a custodial interrogation during the second interview. See, e.g., Ramirez v. State, 739 So.2d 568, 574 (Fla.1999); J.G. v. State, 883 So.2d 915, 922 (Fla. 1st DCA 2004). The four-factor test for considering whether a suspect is in custody includes the consideration of “(1) the manner in which the police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; and (4) whether the suspect is informed that he or she is free to leave the place of questioning.” Ramirez, 739 So.2d at 574. B.M.B. was taken alone into an interview room where she was subjected to questioning by a Tampa police detective despite her repeated denials of any involvement. The detective admitted that B.M.B. was a suspect in the case and that he confronted her with alleged evidence of her acts. There is no evidence that B.M.B. was told she was free to leave the interview; in fact, by all accounts she was not. We conclude that a reasonable juvenile would have believed that he or she was in custody at the time of the interrogation. Id.

Even though B.M.B. had been read her Miranda warnings before she confessed or made any inculpatory statements,-in order for her confession to be admissible she must have knowingly and voluntarily waived her constitutional rights. Miranda, 384 U.S. 436, 86 S.Ct. 1602. It is the State’s burden to prove that a waiver of Miranda rights was knowing and voluntary. Sliney v. State, 699 So.2d 662, 669 (Fla.1997). This burden is even heavier when the suspect is a juvenile. J.G., 883 So.2d at 923.

There is no bright-line rule that would render a confession by a juvenile involuntary. Ramirez, 739 So.2d at 577. Instead, the “totality of the circumstances” must be considered. Id. at 575. The supreme court has concluded certain factors must be considered when a juvenile is involved. These factors are: (1) “the manner in which the Miranda rights were administered, including any cajoling or trickery”; (2) “the suspect’s age, experience, background and intelligence”; (3) “the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his or her parents before questioning”; (4) “the fact that the questioning took place in the station house”; and (5) “the fact that the interrogators did not secure a written waiver of the Miranda rights at the outset.” Id. at 575-76.

When reviewing a motion to suppress, this court defers to the trial court’s factual findings if they are supported by competent, substantial evidence and reviews legal conclusions de novo. Loredo v. State, 836 So.2d 1103 (Fla. 2d DCA 2003). The trial court erred as a matter of law in concluding that under the circumstances this fourteen-year-old juvenile with no pri- or criminal involvement knowingly and voluntarily waived her Miranda rights. B.M.B. had never been read Miranda rights in the context of a criminal investigation. Because the detective stopped the tape when he claims to have given her the Miranda warnings, there is no evidence regarding the sufficiency of those warnings. Apart from the detective’s testimony that B.M.B. acknowledged she understood the rights, the record is completely devoid of any other specific factual findings that B.M.B. clearly understood the rights and their significance. Merely reading B.M.B. her Miranda rights does not satisfy the State’s “heavy” burden of proving that she comprehended the rights she was giving up and the real consequences of her waiver. J.G., 883 So.2d at 925.

B.M.B.’s age, experience, and background did not allow her to fully appreciate the gravity of the situation, especially considering the circumstances under which her confession was elicited. The detective suggested to B.M.B. that her actions were in the nature of a joke or a prank and seemed to suggest that they were understandable because B.M.B. was upset with her teacher for not letting her use the bathroom. There is no indication that B.M.B. understood that serious criminal charges could result from the investigation. Although she likely faced some charge of delinquency as a juvenile, the criminal offense which is the basis of the delinquency in this case is a first-degree felony normally punishable by up to thirty years in prison. When a juvenile faces the prospect of such a serious charge, it seems that there should be a heightened concern that the juvenile understands the nature of the Miranda rights and the potential consequences of waiving them.

B.M.B. was also not provided the opportunity to consult with a parent before being questioned. Because B.M.B. was a juvenile, the police were obligated to attempt, and continue to attempt, to notify her parents upon taking her into custody. Ramirez, 739 So.2d at 577; see also § 985.207(2), Fla. Stat. (2005). Failure to comply with this statutory requirement does not necessarily mean a Miranda waiver was unknowing and involuntary, but it is a factor that must be considered. Id. It is undisputed that B.M.B.⅛ parents were never informed of the investigation. In fact, the State, which bears the burden, failed to present any evidence that it ever even attempted to contact them.

B.M.B. was not questioned at a station house but was questioned at an office at her school. The Tampa police detective, whom she did not know, conducted the second interview by himself without any assistance from the principal, assistant principal, or school resource officer. To a school-age child, this setting is probably no less intimidating than a station house. Finally, the detective failed to ever obtain a written waiver of Miranda rights from B.M.B.

Based on a review of the totality of the circumstances, we conclude that the State failed to establish that B.M.B. validly waived her Miranda rights. We reverse the adjudication of delinquency and remand for further proceedings.

Reversed and remanded.

STRINGER and VILLANTI, JJ., Concur.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . If this statement was not a misrepresentation, there is no indication from the record that anyone told the detective that they witnessed B.M.B. adulterating the liquid. In fact, the detective testified that he became suspicious of B.M.B. not because there were witnesses to the incident but because of her fleeting eye contact and her knowledge that the cup contained lemonade.

      . We note that the sufficiency of the evidence to prove poisoning "with intent to kill or injure another person” is not an issue presented in this appeal.