text:
    Martin NAVARETTE, Appellant, v. Lisa KERN, Appellee.
    No. 4D06-4962.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Betsy E. Gallagher and Michael C. Clarke of Kubieki Draper, Tampa, for appellant.
    Jane Kreusler-Walsh and Rebecca Merrier Vargas of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Casey D. Shomo of Casey D. Shomo, P.A., West Palm Beach, for appellee.
   GROSS, J.

Lisa Kern filed a personal injury suit against Martin Navarette arising out of a rear-end automobile collision. Navarette conceded the issue of liability. Kern tried the case on the theory that the accident aggravated a pre-existing condition; she underwent spinal surgery. Her expert testified the accident aggravated a “preexisting abnormal disc.” The defense expert testified that the accident caused not a permanent injury, but only a cervical sprain. The defense argued in closing that degenerative changes in Kerris neck, rather than Navarette’s negligence, caused Kerris injuries.

The trial court refused Kerris request to charge the jury with Florida Standard Jury Instruction (Civil) 5.1(b) on concurring cause. The court gave Standard Instruction 6.2(b), the damage instruction on aggravation of an existing disease or physical defect. The jury awarded $11,238 in past medical expenses and lost wages, but found that Kern did not sustain a permanent injury as a result of the accident.

The court granted Kerris motion for new trial, ruling that it was error not to have given Standard Instruction 5.1(b) on concurring cause. Navarette appeals. We affirm.

This court has held that Florida Standard Jury Instruction 5.1(b) on concurring cause is “required where the defendant’s negligence acts in combination with the plaintiffs physical conditions to produce the resulting injury.” Marinelli v. Grace, 608 So.2d 833, 834 (Fla. 4th DCA 1992); see Dutcher v. Allstate Ins. Co., 655 So.2d 1217, 1219 (Fla. 4th DCA 1995); see also Hart v. Stern, 824 So.2d 927, 930 (Fla. 5th DCA 2002); Thomason v. Gordon, 782 So.2d 896, 898-99 (Fla. 5th DCA 2001); Esancy v. Hodges, 727 So.2d 308 (Fla. 2d DCA 1999). In Marinetti, we rejected the argument that giving instruction 6.2(b) on the aggravation of an existing condition made up for the failure to give the concurring cause instruction in a case such as this; we wrote that the “instruction on assessing damages, standing alone, is patently insufficient protection against the risk of confusion arising by a failure to give the concurring cause instruction.” 608 So.2d at 834. Without the concurring cause instruction, “the jury could have been under the erroneous impression that the required permanent injury had to result solely from the accident.” Dutcher, 655 So.2d at 1219.

We find no error in the trial judge’s ruling on the defense expert.

Affirmed.

STONE and WARNER, JJ., concur.


source: Caselaw Access Project

author: ROTHENBERG, Judge. PER CURIAM. RAMIREZ, J.

license: Public Domain

text:
    SOUTHERN GROUP INDEMNITY, INC., Petitioner, v. HUMANITARY HEALTH CARE, INC., as assignee of Martha Lopez, Respondent.
    No. 3D06-2788.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.

      David P. Pakula, Pembroke Pines, for petitioner.
    Stuart B. Yanofsky, Hollywood, for respondent.
    Before WELLS, SHEPHERD, and ROTHENBERG, JJ.
   On Motion for Rehearing

ROTHENBERG, Judge.

We grant the appellee’s motion for rehearing, withdraw our former opinion dated May 30, 2007, and substitute the following opinion in its stead:

Southern Group Indemnity, Inc. (“Southern Group”) petitions this Court for a writ of certiorari, seeking to quash the opinion of the circuit court sitting in its appellate capacity, which affirmed the county court’s order granting summary judgment in favor of Humanitary Health Care, Inc. (“Humanitary Health”) on its request for a declaratory judgment. We grant the petition.

Following an automobile accident, Martha Lopez (“Lopez”) received medical services from Humanitary Health. She assigned her rights under an automobile insurance policy providing personal injury protection (“PIP”) benefits issued by Southern Group to Humanitary Health. Southern Group denied benefits on the basis that the claimed medical services did not exceed the $2,000 deductible under the policy.

On December 29, 2003, Humanitary Health filed suit against Southern Group in county court, seeking to collect PIP benefits. Count I was for breach of contract, alleging that Southern Group failed to pay the benefits within thirty days as required by paragraph 627.736(4)(b), Florida Statutes (2003). In Count II, Humani-tary Health requested that the circuit court issue a declaratory judgment providing that it was entitled to presuit disclosure of Southern Group’s PIP payout logs. Humanitary Health asserted that pursuant to paragraph 627.736(6)(d), as part of its presuit investigation, it requested information from Southern Group, including a PIP payout log, which would have allowed it to determine whether the medical bills it submitted to Southern Group were properly applied to the deductible, but that Southern Group failed to submit these documents. Humanitary Health asserted that paragraph 627.736(6)(d) requires an insurer, upon a request from the injured person, to furnish the PIP payout logs pre-suit, and that because Lopez executed an assignment of benefits, it was placed in Lopez’s shoes.

In November 2004, Humanitary Health filed a motion for partial summary judgment as to its declaratory judgment count. It argued that Southern Group “has now provided a PIP payout sheet as part of its response to Plaintiffs First Request to Produce.... In doing so, Defendant has essentially confessed judgment, entitling Plaintiff to recover attorney’s fees and costs.”

In March 2005, Southern Group moved for summary judgment. As to the breach of contract count, Southern Group argued that Humanitary Health’s bill for medical services was applied to the deductible. As to the declaratory judgment count, Southern Group argued that under paragraph 627.736(6)(d), it did not have a duty to produce the PIP logs presuit because this section does not refer to PIP logs or any other internal documents prepared by the insurance carrier, and that paragraph 627.736(6)(b) only refers to documents from physicians, hospitals, clinics or other medical institutions.

The county court judge granted Human-itary Health’s motion for partial summary judgment; denied Southern Group’s motion for summary judgment; and reserved jurisdiction to award attorney’s fees.

Southern Group appealed the county court’s order granting partial summary judgment in favor of Humanitary Health to the circuit court, appellate division. The circuit court issued a written opinion affirming, which provides, in part, “[i]n the event an assignee is forced to file a lawsuit because of an insurance company’s pre-litigation refusal to provide the log, a post-litigation production of the document is tantamount to, a confession of judgment.” The court also concluded that “[wjhile § 627.736(6)(d) does not specifically identify the PIP log as a document that must be produced by an insurer presuit, ... the statutory language is broad enough to encompass the PIP log.” Southern Group filed a Motion for Rehearing or Clarification, which the circuit court denied. Thereafter, Southern Group filed its petition for writ of certiorari in this Court.

The issue presented in this petition is whether the circuit court, acting in its appellate capacity, applied the correct law when it determined that pursuant to paragraph 627.736(6)(d), . Florida Statutes (2003), an insurer is required to provide in presuit discovery its payout log to its insured and/or its insured’s assignee, which in this case is the insured’s medical provider.

Section 627.736, Florida Statutes (2003), provides personal injury protection to the various persons identified in subsection (1). Subsection (6) of the statute pertains to the obligation of the various entities to provide discovery to the insurer. Paragraph 627.736(6)(a) pertains to the obligation of the insured’s employer to provide information to the insurer. Paragraph 627.736(6)(c) provides a mechanism for the insurer to petition the court to resolve disputes regarding the insurer’s right to the requested discovery, and paragraph 627.736(6)(d) allows the insured to obtain a copy of all information obtained by the insurer through this process. Specifically, paragraph 627.736(6)(d), Florida Statutes (2003), provides as follows:

(6) DISCOVERY OF FACTS ABOUT AN INJURED PERSON; DISPUTES.—
(d) The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provisions of this section, and shall pay a reasonable charge, if required by the insurer.

Humanitary Health, standing in the shoes of the insured, argued below that pursuant to paragraph 627.736(6)(d), it was entitled to a copy of Southern Group’s payout log presuit. The circuit court agreed that paragraph 627.736(6)(d) was applicable and, while recognizing that the statute did not expressly require the insurer to provide its PIP payout log to the insured, concluded that the statute is broad enough to include it.

Humanitary Health’s arguments before this Court are that the circuit court correctly interpreted paragraph 627.736(6)(d), and that whether we agree or disagree with the circuit court’s interpretation is not dispositive, as mere disagreement with the appellate court’s interpretation of an applicable statute is not a sufficient basis for granting second-tier certiorari review. While we completely agree with Humani-tary Health’s premise, we disagree with its conclusion. We do not merely disagree with the circuit court’s interpretation of paragraph 627.736(6)(d), we conclude that the statute is completely inapplicable.

In Haines City Community Development v. Heggs, 658 So.2d 523, 528 (Fla.1995), the Florida Supreme Court held that the proper inquiry under second-tier certiorari review is whether the circuit court afforded procedural due process and whether it applied the correct law. The Court, however, cautioned in Ivey v. Allstate Insurance Co., 774 So.2d 679 (Fla.2000), that while the district courts are governed by a very narrow standard of review, discretionary use of its certiorari power must not be so narrowly applied as to deprive litigants and the public to essential justice. Ivey, 774 So.2d at 682-83. Thus, the seriousness of the error must be considered in determining whether the district court should exercise its discretion to correct an error. Heggs, 658 So.2d at 528.

In Ivey, the Florida Supreme Court concluded that the district court incorrectly expanded the scope of its certiorari review by granting review “merely [because it] disagreed with the circuit court’s interpretation of the applicable law,” 774 So.2d at 683, and noted that the district court’s decision did not consider why the circuit court’s decision constituted an application of the incorrect law. Id.

Because the circuit court misapplied the law, we conclude that certiorari is appropriate in this case. Subsection 627.736(6) does not provide for nor address the insured’s right to access documents prepared internally by the insurer. As the insurer’s PIP payout log is a document generated by the insurer and is not a document the insurer obtained pursuant to subsection 627.736(6), the circuit court, acting in its appellate capacity, applied the incorrect law by finding that: (1) paragraph 627.736(6)(d), Florida Statutes (2003), requires an insurer to provide its PIP payout log to an insured or the insured’s assignee, presuit; and (2) that “[i]n the event an assignee is forced to file a lawsuit of an insurance company’s pre-litigation refusal to provide the log, a post-litigation production of the document is tantamount to a confession of judgment.”

We, therefore, grant Southern Group’s petition and quash the decision rendered by the circuit court.

ON MOTION FOR REHEARING EN BANC

Before GERSTEN, C.J., and COPE, GREEN, RAMIREZ, WELLS, SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA and SALTER, JJ.

PER CURIAM.

Denied.

GERSTEN, C.J., and COPE, GREEN, WELLS, SHEPHERD, CORTINAS, ROTHENBERG, LAGOA and SALTER, JJ., concur.

RAMIREZ, J.

(dissenting).

I dissent from our denial of rehearing en banc based on Ivey v. Allstate Insurance Company, 774 So.2d 679 (Fla.2000), which was eerily similar to our current case. Ivey was also a suit seeking payment of PIP benefits under section 627.736, Florida Statutes (1995). The litigation stemmed from confusion as to whether Ivey was seeking recovery for one or two accidents. When Allstate realized that Ivey had received treatment for two injuries, it finally paid the additional amount to which the doctor was actually entitled and for which Ivey had initially submitted a claim.

Both the county and the circuit courts determined that Ivey was entitled to attorney’s fees pursuant to sections 627.736(8) and 627.428(1), Florida Statutes (1995), because Allstate had conceded and paid the additional amount actually due and owing. This Court granted certiorari and reversed the circuit court’s appellate decision, reasoning that, “[bjecause Allstate did not pay the entire claim due to an error in the doctor’s bill, its failure to pay said claim did not rise to that level of ‘wrongful’ which would entitle Ms. Ivey to an award of attorney’s fees.” Allstate Ins. Co. v. Ivey, 728 So.2d 282, 283 (Fla. 3d DCA 1999), (citing sections 627.736(8), 627.428).

In quashing our decision, the Florida Supreme Court relied on Haines City Community Development v. Heggs, 658 So.2d 523, 525 (Fla.1995), which, according to Ivey, had narrowed the scope of common law certiorari jurisdiction. See Ivey, 774 So.2d at 681. The Florida Supreme Court quoted from Judge Altenbernd’s opinion in Stilson v. Allstate Insurance Co., 692 So.2d 979, 982-83 (Fla. 2d DCA 1997):

Existing case law establishes that the departure from the essential requirements of the law necessary for the issuance of a writ of certiorari is something more than a simple legal error ... In this case, the error occurred because the established law provided no controlling principle and the resulting monetary loss for Ms. Stilson, while unfortunate from her perspective, is not sufficient by itself to be a miscarriage of justice.
Both the county court and the circuit court were aware of the general law announced in [Government Employees Insurance Co. v.] Novak [453 So.2d 1116 (Fla.1984)]. Unfortunately, there is no Florida case squarely discussing an object intentionally thrown at a moving car. Without such controlling precedent, we cannot conclude that either court violated a “clearly established principle of law.” At worst, both courts misapplied the correct law. Their error is not a matter of disobedience to the law, but simply a failure to logically extend Novak to reach the correct result under a new set of facts.
This case highlights a significant problem within our existing judicial structure. It is difficult for the law to evolve in unreported decisions issued in circuit court appeals. What evolution occurs may take conflicting approaches within the numerous circuits. As a result, there may never be “clearly established principles of law” governing a wide array of county court issues, including PIP issues.
There is a great temptation in a case like this one to announce a “miscarriage of justice” simply to provide precedent where precedent is needed. We do not interpret Heggs as giving this court that degree of discretion in a certiorari proceeding. Such an interpretation would invite certiorari review of a large number of the appellate decisions issued by circuit courts.

Ivey, 774 So.2d at 682-83.

The Florida Supreme Court then reasoned that this Court had merely disagreed with the circuit court’s interpretation of the applicable law, which was an improper basis for common law certiorari. Id. at 683. Our decision today pays homage to the dictates of Ivey, but then states, “[w]e do not merely disagree with the circuit court’s interpretation of paragraph 627.736(6)(d), we conclude that the statute is completely inapplicable.” See supra p. 1250. (emphasis in original). Respectfully, this attempt at hairsplitting is a transparent circumvention of the dictates of the Florida Supreme Court’s Ivey decision. How can the panel opinion find the statute inapplicable without interpreting its application? The same could have been said in Ivey, that Ivey should not recover fees, not only because this Court disagreed with the circuit court’s interpretation of sections 627.736(8) and 627.428(1), but because those statutes were completely inapplicable.

Our case is precisely the type of situation referred to by Judge Altenbernd in Stilson, and quoted in Ivey, an area where “the established law provided no controlling principle.” Ivey, 774 So.2d at 682. This Court has been tempted successfully “to announce a ‘miscarriage of justice’ simply to provide precedent where precedent is needed.” Stilson, 692 So.2d at 982. Until our decision, there was simply no reported case interpreting section 627.736(6)(d) not to apply to PIP payout logs.

As in Ivey, not only did our decision incorrectly expand the scope of certiorari by permitting a second appeal, but the result is also contrary to well established and recognized principles of existing PIP law. The purpose of the no-fault statutory scheme is to “provide swift and virtually automatic payment so that the injured insured may get on with his life without undue financial interruption.” Ivey, 774 So.2d at 683-84 (quoting from Gov’t Employees Ins. Co. v. Gonzalez, 512 So.2d 269, 271 (Fla. 3d DCA 1987)). In this case, the lower courts simply were requiring the insurance company to produce a log that contained the names of the medical providers and the amounts of their claims in the order received. The medical providers thereby can determine what expenses could be properly allocated to the PIP benefits deductible. The logs contain no privileged information.

We recently denied certiorari in Digital Medical Diagnostics v. United Auto. Insurance Company, 958 So.2d 505 (Fla. 3d DCA 2007), where after four years of litigation, the medical provider was blindsided with a motion for summary judgment asserting for the first time that the bills fell below the insured’s deductible. By requiring insurance companies to produce these PIP payout logs, the courts below can prevent the insurance companies from stonewalling, like they did here and in Digital Medical Diagnostics, where the insurers would only produce the log after the medical providers filed suit.

The circuit court in this case wrote a well-reasoned five-page opinion explaining that “[t]he PIP statute is designed to provide speedy, uncomplicated resolution of issues between insurance companies and their insured/assignees.” By quashing the circuit court’s decision, we are forcing insureds and medical providers to file suit to obtain information readily available to insurers. If they can obtain these logs quickly and cheaply, everyone can determine where they stand in relation to the deductible, averting needless litigation with its concomitant fees and costs. The circuit court here concluded on the last page of its opinion as follows:

While § 627.736(6)(d) does not specifically identify the PIP log as a document that must be produced by an insurer pre-suit, it is the opinion of this, and numerous other courts, that the statutory language is broad enough to encompass the PIP log. A single provider assignee may have no other means of gleaning such information from any other source but the PIP log. The assignee would likely not be privy to the identity of any other provider who may have provided service to the insured and submitted claims prior or subsequent to the assignees’s own claim. Assignees should not be forced to rely on the representations of insurance companies without accompanying documentation.

In my view, this is a perfectly reasonable interpretation of the statute. The pertinent language of the statute is:

§ 627.736(6) Discovery of facts about an injured person; disputes.—
(d) The injured person shall be furnished, upon request, a copy of all information obtained by the insurer under the provisions of this section, and shall pay a reasonable charge, if required by the insurer.

Our opinion takes the view that “the insured’s PIP payout log is a document generated by the insurer and is not a document the insurer obtained pursuant to subsection 627.736(6).” But what is the payout log if not “information obtained by the insurer?” It is merely a list of the bills received in chronological order. If the injured person were to request copies of these bills with the date stamps showing when they were received by the insurer, would this Court then find an obligation to produce them? While the language of the statute may not directly mention payout logs, it also does not explicitly exclude “documents generated by the insurer.” The statutory term “information” should be interpreted expansively, as the term is not limited to documents.

It has long been the policy of this state to construe statutes governing insurance contracts to protect the public. Fla. Farm Bureau Cas. Ins. Co. v. Cox, 943 So.2d 823, 835 (Fla. 1st DCA 2006). More than fifty years ago, our state supreme court stated that “the public interest requires that a policy be interpreted by the courts in the manner most favorable to the insured, and also that statutes governing insurance contracts be liberally construed so as to protect the public.” Praetorians v. Fisher, 89 So.2d 329, 333 (Fla.1956). As a party to a contract, the insurer here had a duty to avert loss and to mitigate costs and damages. The statute even provides for compensating the insurer for any costs, as the insured is required to “pay a reasonable charge, if required by the insurer.” Our decision promotes neither the protection of the public nor the mitigation of costs and damages.

In conclusion, I do not believe our common law certiorari jurisdiction extends to a mere disagreement with the lower courts’ interpretation, even if we label it “application” instead of “interpretation.” Furthermore, the circuit court’s opinion is more effective at promoting judicial economy and protecting the public from deception by insurance companies. Our decision, on the other hand, forces medical providers to file suit to obtain non-privileged information readily available to insurers. I therefore agree with the circuit court that the statute is broad enough to require pre-suit production of this information.

SUAREZ, J., concurs.

      . The statutory subdivisions (chapter, section, subsection, paragraph, etc.) are set forth in the Preface to the Florida Statutes. See Golf Channel v. Jenkins, 752 So.2d 561, 565 n. 3 (Fla.2000); Keller v. Newman Sons, Inc., 756 So.2d 120, 122 n. 2 (Fla. 3d DCA 2000).

      . The circuit court's opinion explains that “[playout logs disclose the order in which bills are received and how the deductible is applied to each bill.”


author: WARNER, J.

text:
    David J. WELLING, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-75.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    David J. Welling, Clermont, pro se.
    No response required for respondent.
   WARNER, J.

David Welling brings this petition for writ of habeas corpus claiming that he is entitled to immediate release from prison, because his thirty year sentence as a habitual offender is illegal. We originally approved his sentence in Welling v. State, 748 So.2d 314 (Fla. 4th DCA 1999) (en banc). He claims that Mack v. State, 823 So.2d 746 (Fla.2002), requires us to revisit our opinion and declare his sentence illegal. We disagree and deny the writ.

The basic facts are contained in our first opinion:

In 1993, appellant was convicted of burglary of a dwelling and pronounced a habitual felony offender by the trial court. He was then given a sentence of thirty years, a period authorized only by the habitual offender statute, but the court suspended the sentence with a condition of twelve to fourteen months in a drug farm. ■ In 1994, the trial court revoked appellant’s probation and sentenced him, as a habitual offender, to thirty years.

748 So.2d at 314. (Our first opinion omitted the fact that he was also given probation as part of his sentence.) He claimed that his sentence was illegal under King v. State, 681 So.2d 1136 (Fla.1996), in which the supreme court held that where a trial judge declares a defendant a habitual offender but sentences him to a sentence more lenient than that required by the habitual offender statute, upon violation and revocation of probation the defendant may not be sentenced to a habitual offender sentence.

We discussed King and other cases in our opinion and concluded:

The common thread running through King, Geohagen [v. State, 639 So.2d 611 (Fla.1994)], and Simon [v. State, 684 So.2d 263 (Fla. 4th DCA 1996) ] is that the trial courts found the defendants in those cases qualified to be habitual offenders, but the courts never imposed habitual offender sentences. Instead, the courts sentenced the defendants for a number of years which were within the guidelines permitted range. According to King, when the trial court declares the defendant to be a habitual offender, but imposes a sentence for a period of years which is within the guidelines, only a guideline sentence can be imposed if the defendant violates probation. In [State v.] Kennedy[, 698 So.2d 349 (Fla. 4th DCA 1997)] and the present case, the trial courts declared the defendants to be habitual offenders and imposed longer than guidelines sentences authorized only by the habitual offender statute. Although there was at one time confusion as to whether trial courts could suspend habitual offender sentences, that was resolved in McKnight v. State, 616 So.2d 31 (Fla.1993), in which the court held that a “trial judge has the discretion to place a habitual felony offender on probation.”

Welling, 748 So.2d at 316.

We distinguished Welling’s sentence, because the trial court sentenced him as a habitual offender to thirty years in prison, then suspended the sentence with a drug farm condition and probation. Thus, when Welling violated his probation, the trial court imposed the original thirty-year sentence.

Mack does not change this result and merely applies King. Mack was originally sentenced to a guidelines split sentence and then sentenced to ten years as a habitual offender upon violation of his probation. Agreeing that his sentence was illegal under King, the supreme court noted that nothing in the record indicated that Mack was to serve his probation as a habitual offender or that he was on notice that he would be treated as a habitual offender if his probation was revoked.

In contrast, Welling was originally given a thirty-year sentence. That is a habitual offender sentence. It was suspended with a term in the drug farm and probation, but the sentence was still thirty years. Clearly, this record shows that he was being treated as a habitual offender and would be so treated should he violate his probation. We conclude that Mack does not require us to recede from our original opinion.

We distinguish Pankhurst v. State, 796 So.2d 618 (Fla. 2d DCA 2001), in which the court held that a defendant’s initial two-year probationary term as a habitual offender could not support a subsequent habitual offender sentence upon violation of probation. There the trial court had sentenced the defendant to only the two-year probationary sentence. Here, the trial court sentenced the defendant to thirty years and suspended it upon conditions.

Based upon the foregoing analysis, we deny the petition.

STEVENSON and MAY, JJ., concur.


author: FARMER, J.

text:
    William J. SUTTON, Appellant, v. FLORIDA PAROLE COMMISSION, State of Florida, Appellee.
    No. 4D07-3653.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 1, 2008.

      Carey Haughwout, Public Defender, Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Kim M. Fluharty, General Counsel, Florida Parole Commission, Tallahassee, for appellee.
   FARMER, J.

We grant appellant’s motion for rehearing and thus withdraw our previous opinion affirming the decision of the trial court without prejudice to pursue administrative remedies. The issue presented by this appeal turns out to be both novel to this court and significant. And a proper understanding of the case requires some context and history.

According to a popular TV series, the criminal justice system is divided into “two separate but equally important groups”— which it identifies as the police and the prosecutors. Actually that description applies only to the first half of the system, the one involved in establishing the guilt of an accused. After he is found guilty, there is yet another systemic division. This one deals with the imposition of punishment by a court, and then with the executive branch prison system administering the punishment imposed by the court so that the prisoner is released when his punitive debt has been fully satisfied.

The judge who imposes the punishment and the prison official who administers that punishment are governed by constitutional and statutory requirements. The judge may impose punishment no more severe than the law allows. In turn, prison officials must enforce the actual sentence imposed but may not administer that sentence in a way that would increase the punishment beyond what the court imposed. Prisoners are entitled to have the judicial system review the imposition and administration of their punishment in compliance with these laws. This case involves the administration of punishment and an issue of timely release when the sentence has expired.

Some history is necessary to illuminate the problem raised. Twenty years ago, Florida’s sentencing laws allowed prisoners to accumulate substantial gain time against the sentence imposed by the court. When the time actually served plus their accumulated gain time equaled their sentence, they would be given an early release if there had been no prison misconduct. The early release was unconditional and without any supervision. In 1988, however, the Legislature ended unconditional early release and imposed supervision and conditions in the Conditional Release Program Act (CRPA). Under the new law, the prisoner’s accrued gain time could still allow early release, but he would now remain under the supervision of the Florida Parole Commission, which could impose specified conditions on him. If while on early release the prisoner violated one or more conditions, the Commission could return him to prison, take away the accrued gain time, and restore the balance of the sentence existing when he had been given early release.

Meanwhile, the Legislature began enacting new punishment laws, culminating in 1995 legislation significantly reducing the accumulation of gain time, as it had been employed until then. Henceforth, prisoners would be required to serve at least 85% of the actual sentence imposed no matter how much gain time they might accumulate. Nevertheless substantial numbers of prisoners could still earn some form of early release.

Then for one class of prisoners, a new law curtailed actual release from prison at the expiration of a sentence. In 1998, the Legislature enacted the Jimmy Ryce Act (JRA) providing for the indefinite civil commitment of unreformable sex offenders after they had completed their prison sentence. For these prisoners, there would be no release from confinement, early or otherwise. When their sentence was fully served they would simply pass from criminal to civil confinement.

JRA requires the Department of Corrections to give the Commission early notice when a sexual offender is eligible for release from prison. Before a sexual offender is released, the Department must inform the State Attorney who may then file civil commitment proceedings under JRA. If a trial judge finds probable cause that the prisoner meets the requirements of JRA, he is transferred from confinement with the Department to confinement in another state facility pending a final determination under JRA.

Then if the jury in the JRA case finds the prisoner likely to commit new sex offenses, his civil commitment formally becomes indefinite. On the other hand, if the prisoner’s sentence is fully expired and he is acquitted by the jury in the JRA case or the State dismisses it, he may have his liberty. But when, as here, the prisoner is given conditional early release under CRPA and a case is simultaneously brought under JRA but the JRA case ends in the prisoner’s favor, there is some question as to whether or when he can have his liberty.

This last scenario involves the Commission’s policy for early release of sex offenders under CRPA who are also brought under JRA. If the JRA case ends in favor of the prisoner, the Commission may charge him with violating the conditions of his release during his JRA commitment. If the Commission finds that he violated the CRPA conditions during the JRA proceedings, the Commission will revoke his conditional release, take away all the gain time, and re-impose the unserved balance of his sentence.

The prisoner in this ease is one of those given early release and simultaneously brought into proceedings under JRA. He had begun serving his 15-year sentence in July 1994. On account of accumulated gain time, by April 2000 he was entitled to early release under CRPA. Acting together, the two separate state authorities coordinated both an early conditional release under CRPA and also started JRA proceedings against him. The trial court found probable cause under JRA and committed him to civil confinement pending a final JRA determination. Instead of being released from confinement, he was thereupon simply transferred from his prison to a JRA facility operated by the State of Florida.

The record given us at this point does not contain a full account of events in the JRA case. It does show that on three occasions he was brought from the JRA confinement facility in Martin County into the circuit court in Palm Beach County for a hearing. There is no indication as to what happened in any of these hearings. It is nonetheless clear that, after confining him in a JRA facility for more than four years, in June 2004 — again in coordinated proceedings — the State Attorney filed a voluntary dismissal of the JRA case while the Commission moved to revoke his conditional release. When the State dropped the JRA case it merely moved him back to his prison without counting against his sentence the four-year long JRA hold. In spite of being given “early release” as a result of the JRA proceedings he has been uninterruptedly imprisoned from the time sentence was imposed. Obviously the dismissal of the JRA case is a functional concession that the State has no legal basis to confine him beyond the 15-year sentence.

In moving to revoke his conditional release, the Commission charged him with refusing to participate in a sex offender treatment program while confined at the JRA facility and to submit to a drug test ordered by his supervising officer. He responded that his refusals were on advice of counsel, that his attorney told him that if he participated in a treatment program during the JRA confinement he would thereby waive any right to confidentiality in statements made to any person for such treatment. According to that advice, his statements would be used against him in the trial on the JRA claim to confine him indefinitely. In other words, he was given to understand that by participating in treatment and drug testing during the JRA case he would be furnishing the state with evidence to be used to confine him perhaps for the rest of his life.

The Commission’s revocation charge was administratively tried before a Parole Examiner. She found that he violated conditional release by refusing sexual offender treatment and drug testing in the JRA case. At the same time, she also found that that his refusal was “clearly” based on legal advice by counsel, that his non-compliance was based upon his desire “to do the right thing” and not out of any desire “to break the rules.” Accordingly, the Parole Examiner recommended that his conditional release be reinstated. Despite the recommendation, however, the Commission entered an order revoking release and denying any “award of credit for time on Conditional Release” in the JRA case. It does not appear that he ever sought judicial review of the Commission’s revocation or the consequent refusal to credit the JRA confinement.

After serving three more years of imprisonment since the FPC decision terminating early release, he has now filed the present motion under rule 3.800(a) to correct what he describes as an illegal sentence. His motion states that he seeks to have the period between 26 April 2000 and 3 June 2004 counted against the 15-year sentence (less 469 days of jail credit) imposed on 7 July 1994. He further states that if this period were properly counted against his sentence, he will be entitled to release from prison on 25 March 2008.

On the other hand, he explicitly disclaims habeas corpus, explaining that he is not today asking for immediate release. Similarly, he disavows treating this appeal of the denial of relief under rule 3.800(a) as review of a denial of habeas corpus. He argues instead that rule 3.800(a) allows him “to move to correct an illegal sentence ‘at any time’ and does not require him to wait under his sentence has expired before he asks for his appropriate credit [for] time served.” The issues he raises are: (1)whether he is entitled to have the time spent in civil confinement under JRA counted against the 15-year sentence imposed in 1994; and (2) whether under rule 3.800(a) the court has jurisdiction to grant relief at this point. The second is antecedent, so we begin with it.

As we observed at the beginning, sentences are imposed by judges, and any sentence they impose must comply with the body of law. On the other hand, the sentences they impose must be administered by state agencies (the Department and the Commission), and these agencies must also follow the law in carrying out the sentence imposed. Executive branch officials have no legal authority to change or correct a sentence imposed by the judge. If there is an error in the sentence as imposed by the judge, it is the judge who must correct it under rule 3.800(a).

This is by way of explaining that rule 3.800(a) is designed for judges to correct an improperly imposed sentence. It is not intended to remedy later errors by the agencies charged with administering the sentence imposed. If the agency incorrectly administers a sentence legally imposed so that the prisoner spends more time in prison than the sentence provides, his remedy is within the agency first and, if not corrected by the agency, on judicial review by extraordinary writ.

In this case, the prisoner did not appear to have timely sought judicial review of the Commission’s decision revoking his early release and denying him credit for the time under JRA. Instead, three years after the fact, he has belatedly filed this rule 3.800(a) motion to remedy the way the Department and the Commission are administering his legal sentence. His motion does not claim that the 15-year sentence imposed by the judge for his crime is invalid or needs correcting. He challenges only the manner in which the 15-year term is being counted or administered.

He cannot use rule 3.800(a) for this purpose. See Smith v. State, 682 So.2d 147 (Fla. 4th DCA 1996) (failure of the Department to credit unforfeited gain time does not make sentence allowing credit for prison time illegal; prisoner’s remedy is not under rule 3.800 but by writ of mandamus); Dep’t of Corrections v. Mattress, 686 So.2d 740 (Fla. 5th DCA 1997) (award of credit to sentence by the Department does not affect legality of sentence; judicial remedy is solely by mandamus); Robinson v. State, 818 So.2d 543 (Fla. 2d DCA 2002) (claim that the Department awarded less credit than provided in sentence cannot be brought under rule 3.800(a) but must instead be made by mandamus). Because he concedes that his sentence was legal when imposed, his remedy for the unlawful administration of his sentence is within the agency, whose decision may then be subject to judicial review by appropriate writ. When he failed to seek timely review of the Commission’s revocation of early release by extraordinary writ, he gave up any remedy for the denial of early release until he is entitled to immediate release at the end of his sentence.

His circumstance should be compared with Martin v. Florida Parole Commission, 951 So.2d 84 (Fla. 1st DCA 2007). That prisoner’s claim resembles this one, except for the question of immediate release. He too had been given early release, later revoked by the Commission. He challenged the revocation by habeas corpus, but the trial court held that his remedy was by certiorari because he was seeking review of the agency’s decision. On appeal the district court reversed, finding habeas appropriate because he was seeking immediate release. The court also held that the one-year time limit on seeking review of such action was not applicable because there can be no statutory time bar to seeking immediate release under habeas corpus.

Here the prisoner disclaims immediate release, even though he does make plain that his true release date is imminent. His circumstance is thus like the prisoner’s in Cooper v. Florida Parole Commission, 924 So.2d 966 (Fla. 4th DCA 2006), review pending, No. SC06-1236 (Fla. June 21, 2006). There the prisoner challenged the revocation of his early release by filing a petition for habeas corpus but did not claim entitlement to immediate release. We held that his remedy was to petition for mandamus to correct the agency’s interpretation of the statute and that mandamus relief was covered by the one-year time limitation of section 95.11(5)(f), rather than rule 9.100(c)(2). We also made clear that habeas corpus was not available at that point because he did not seek immediate release. Plainly, the prisoner in this case is also seeking judicial review of the three-year old Commission decision to deny him credit against his sentence for the time he was confined under JRA. As in Cooper such a claim is covered by the one-year statute of limitations on prisoner petitions for extraordinary writs not challenging a conviction.

At this point, we could pass from this issue without addressing the whole purpose of his resort to court — that under the law he is entitled to count the JRA confinement against his prison sentence. But the parties have fully briefed that claim on the merits, and both seek a decision. Because the issue has obvious and important application for those who administer the system and those most affected by their decisions, we choose to address the issue and say what the law is.

In claiming credit for the JRA time, the prisoner stands on Tal-Mason v. State, 515 So.2d 738 (Fla.1987). There, a defendant was arrested, charged with murder, found incompetent to stand trial, and held for 5½ years in state mental institutions before becoming competent to face the charges. Being sentenced to prison upon his plea, he was thereupon denied credit for the time spent in the mental institutions. The Supreme Court held that it was error to deny him credit. The court explained:

“Tal-Mason clearly had no choice when he was confined in a state mental institution. He entered into no agreement with the state to obtain an early release from confinement or from any other punishment less restrictive than jail time. Rather than increasing his liberty, Tal-Mason’s confinement was in the strictest sense a complete deprivation of liberty. He was in the total custody and control of the state at all times. And while his confinement involved psychological treatment, the primary purpose of both the treatment and the detention was to hold Tal-Mason until such time as he became competent to stand trial, if ever. Thus, his coercive commitment to a state institution was indistinguishable from pretrial detention in a ‘jail,’ as that term is understood in common and legal usage.”

515 So.2d at 739. The court agreed that “there is ‘no meaningful distinction ... between incarceration before trial in a county jail, and state enforced confinement in a mental hospital in preparation for trial.’ ” 515 So.2d at 740. The court further noted that:

“[defendant] was not free on bail, had no control over his place of custody and was never free to leave the hospitals. For all practical intents and purposes, he was still in jail. The court takes judicial notice that the state mental hospitals have the facilities to enforce confinement of their patients, which brings them within the dictionary definition of a ‘jail.’ ”

Id. The court went on to hold that it could not agree that credit against a sentence was strictly limited to institutions formally designated as jail.

Sutton argues there is no meaningful factual distinction between Tal-Mason and the facts of his case. He had no choice when, under JRA, he was confined like a prisoner but in a state mental institution. He entered into no agreement with the State to obtain early release or from any other punishment less restrictive than jail time. Rather than increasing his liberty, his confinement was in the strictest sense a complete deprivation of liberty. He was in the total custody and control of the state at all times. His coercive commitment to a state institution cannot be distinguished from detention in a jail or a prison. He was not free on bail, had no control over his place of custody, and was never free to leave the facility in which he was detained under JRA. For all practical intents and purposes, he was still being held in prison under the JRA law.

In upholding the constitutional validity of JRA in State v. Goode, 830 So.2d 817 (Fla.2002), the court repeatedly emphasized that:

“the Legislature intended that ordinarily the review process of potential sexual predators would be concluded while the person was still in prison. The initial ex parte probable cause determination ... applies primarily to respondents who are still in prison, and a finding of probable cause under this provision simply requires that a respondent be transferred immediately to a secure facility upon the expiration of the sentence.”

830 So.2d at 825. If the intent of JRA is that its essential fact be determined while the prisoner is still serving the sentence for the crime, it is obvious that the Legislature did not intend for JRA proceedings to extend or enlarge the criminal penalty. Nor, for that matter, do JRA proceedings subtract from the sentence. In short, JRA was conceived so that proceedings under its provisions would not affect the administration of any criminal sentence, and would be completed before the sentence was completely served, so as not to unconstitutionally extend the sentence imposed.

The interplay between JRA and CRPA was the subject of David v. Meadows, 881 So.2d 653 (Fla. 1st DCA 2004). The issue there was whether the State could, as here, use CRPA to “release” a prisoner into a JRA proceeding. The court held that there was nothing in either Act barring the State from doing so. In so holding, however, the court made explicit that “[i]n the event that Meadows is found unable to comply with his release program because of his civil confinement, he should not be found in violation and should receive credit for the time during commitment.” [e.s.] 881 So.2d at 655. David v. Meadows explicitly relied on Tal-Mason to reach that conclusion.

We agree with David v. Meadows. Sutton is entitled to have the JRA confinement counted against his 15-year sen-tence. On the other hand, early release under CRPA is no longer applicable because he did not seek timely review of the revocation and denial of JRA credit. Instead he now makes clear that with the JRA time counted against his sentence (along with the 469 days for jail credit awarded by the sentencing judge) on 25 March 2008 he will have actually served the entire 15-year term “day for day”, as he puts it.

To be sure, his rule 3.800(a) motion really seeks an anticipatory ruling that the Department and Commission will not follow the law when his term finally expires on March 25th. We have now explained what the law is. As the Supreme Court once said in comparable circumstances: “There is no showing that [the state agency] will not follow the provisions of [the law] when petitioner becomes entitled to its benefits; the presumption is that officers will do their duty as the law directs them.” Hall v. Mayo, 85 So.2d 592 (Fla.1955). Any habeas corpus claim for immediate release thus being premature at this time, his appeal must be affirmed.

STEVENSON and DAMOORGIAN, JJ., concur.

      . Chet Kaufman, A Folly of Criminal Justice Policy-Making: The Rise and Demise of Early Release in Florida, and Its Ex Post Facto Implications, 26 Fla. St. Univ. L. Rev. 361, 377 (1999). Owing to the former gain time laws, prisoners were serving little more than 40% of their actual sentences. Id. at 385.

      . See Ch. 88-122, § 19, Laws of Fla.; § 947.1405, Fla. Stat. (2007).

      . The length of conditional-release supervision is equal to the amount of gain time the inmate has accrued prior to release. See Evans v. Singletary, 737 So.2d 505, 507 (Fla.1999).

      . § 944.275(4)(b)3, Fla. Stat. (2007).

      . This procedure has been upheld in David v. Meadows, 881 So.2d 653 (Fla. 1st DCA 2004).

      . We cannot but express our concern that this prisoner’s counsel did not seek review of the Commission's decision. He was entitled to counsel during the JRA proceedings and to seek review of the decision to revoke his conditional release. See Shuman v. State, 358 So.2d 1333, 1335 (Fla.1978) (involuntary commitment to a mental hospital, like involuntary confinement of an individual for any reason, is a deprivation of liberty which the State cannot accomplish without due process of law). The failure to seek review appears prima facie ineffective assistance of counsel. We note that the able Assistant Public Defender now representing him was not involved in the revocation proceedings, which were conducted in the Twelfth Circuit, Desoto County.

      . Fifteen years from 7 July 1994, minus the 469 days of pre-conviction jail credit (and without gain time of any kind), means that his sentence will have been fully served on 25 March 2008.

      . In a footnote, the court pointedly observed:
      "We would note that while the Legislature intended that the Ryce Act operate in this way, there is evidence that in practice this is not occurring and that often people are being detained for long periods after their scheduled release date without being taken to trial. The Florida Legislature's Office of Economic and Demographic Research has started releasing statistics which list the procedural distribution of people in the process of being committed under the Ryce Act. [c.o.] According to the statistics, the overwhelming majority of the people currently in the system are detainees awaiting trial after the expiration of their sentences. While the numbers do not indicate the cause of the delay, the number of persons being detained has consistently increased, which indicates that compliance with the thirty-day time limit for trial is rarely being practiced.”
      830 So.2d at 825. The extended time periods in this case demonstrate the continuing accuracy of the court’s observation.

      . Because Goode directly involved JRA, it is apposite authority as to whether Tal-Mason controls the entitlement to credit for confinement in JRA cases. Gay v. Singletary, 700 So.2d 1220 (Fla.1997), did not involve JRA and is therefore inapt.


text:
    Arsense FREDERIC, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2262.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Clayton R. Kaeiser, Miami Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

In sentencing appellant on two counts of sexual battery, the trial court relied on a scoresheet calculation which included points for sexual penetration. Appellant claims that the inclusion of these points violated the principle of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), in that the jury did not make an explicit finding of penetration. We affirm, concluding that the jury’s finding that the defendant was guilty as charged was sufficient for the trial court to assess points for penetration.

On May 19, 1999, the appellant, Arsense Frederic, was convicted of two counts of sexual battery by a person standing in a position of familial or custodial authority. Appellant was the uncle of the victim. The victim testified at trial that the appellant engaged in vaginal sex with her on numerous occasions. She became pregnant, and when her aunt found out, the police were ultimately contacted. A DNA test was administered when the baby was born. The state charged the appellant with two counts of sexual battery with the victim “by causing his penis to penetrate or unite with the vagina [of the victim].” At trial a population geneticist testified that the probability that the defendant was the father of the victim’s baby was 99.9 + %. The jury found the appellant guilty as charged.

At sentencing the trial court included points for sexual penetration on his score-sheet. He was sentenced on July 19, 1999. Three weeks earlier, the United States Supreme Court decided and published Ap-prendi. Neither at his sentencing nor on appeal did appellant raise a claim that, pursuant to Apprendi, points for penetration should not have been included in the scoresheet, because the jury had not made an express finding of penetration.

Appellant appealed his conviction and sentence to this court. We affirmed both his conviction and sentence. Frederic v. State, 770 So.2d 719 (Fla. 4th DCA 2000). Appellant then moved to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court granted the motion, finding that the appellant was entitled to be resentenced under the 1994 guidelines, pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000). The court also permitted him to bring an Apprendi and Blakely challenge to the sentencing factors on resentencing.

When the court resentenced him in 2007 to sixteen years in prison for each count, a sentence at the top of the guidelines, the court specifically rejected the application of Apprendi, because it found that it would be retroactively applied. However, even if it did apply, the court determined that a finding of penetration was inherent in the original verdict. From this order, this appeal is taken.

The trial court erred in deciding that Apprendi and Blakely did not apply to appellant’s resentencing. Appellant was sentenced after Apprendi was decided. Our supreme court has determined that “[w]hen the United States Supreme Court or this Court renders a decision favorable to criminal defendants, ... [w]e have held that such decisions apply in all cases to convictions that are not yet final — that is convictions for which an appellate court mandate has not yet issued.” Hughes v. State, 901 So.2d 837, 839 (Fla.2005) (emphasis added) (citing Smith v. State, 598 So.2d 1063, 1066 (Fla.1992)). As appellant’s case was not yet final when Apprendi was decided, Apprendi applies, as clarified by Blakely. Thus, a motion for postconviction relief to correct an illegal sentence would have properly brought the Apprendi issue before the court. See Galindez v. State, 955 So.2d 517 (Fla.2007).

Although Apprendi and Blakely apply, we agree with the trial court that they do not require resentencing. Appellant claims that the jury did not find penetration, because he was charged with penetration or union with the vagina of the victim. Galindez teaches us, however, that an Apprendi error is subject to a harmless error analysis. The task of the court is to determine “whether the failure to have the jury make the victim injury finding ... contributed to the conviction or sentence-in other words, whether the record demonstrates beyond a reasonable doubt that a rational jury would have found penetration.” Id. at 523. In this case, the evidence showed a 99.9 + % certainty that the appellant was the father of the victim’s child. The victim herself also testified to multiple penetrations by the appellant. In light of this testimony by the victim as well as the DNA evidence, we conclude that the record shows beyond a reasonable doubt that a rational jury would have found penetration.

The appellant suggests that he offered an alternative explanation that his nephew impregnated the victim, negating his fatherhood of the victim’s child and the objective evidence of penetration. Therefore, the jury could have found “union” with the vagina of the victim and not penetration. As explained in our prior opinion, the trial court sustained the state’s objection to the defense questioning the population geneticist as to whether he could exclude the nephew as a possible father for the child. Frederic, 770 So.2d at 720. In our opinion we affirmed the trial court on that issue, finding that the question could not be answered because, without DNA testing of the now-deceased nephew, the probability that he was the father could not be calculated. Id. Thus, from the evidence that the jury heard, the inescapable conclusion was that the appellant was the father, and a rational jury would have found penetration.

Because any Apprendi error was harmless, we affirm the trial court’s order denying the motion to correct appellant’s sentence.

STONE and GROSS, JJ., concur.


text:
    James HETHERLY and Jon Hetherly, Appellants, v. SAWGRASS TAVERN INC., Appellee.
    No. 4D07-2019.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Julie H. Littky-Rubin of Lytal Reiter Clark Fountain & Williams, LLP., West Palm Beach, and Adam M. Balkan of Balkan & Patterson, LLP., Boca Raton, for appellants.
    Mark Hicks and Brett C. Powell of Hicks & Kneale, P.A., Miami, and Jack T. Frost of Green Ackerman & Frost, P.A., Boca Raton, for appellee.
   FARMER, J.

Twin brothers and a co-worker went to a Tavern and had some drinks. The twins were underage. Later outside the Tavern, after the other twin had left, one of the twins got into a brief fight with the coworker. Still later, the twins went to the co-worker’s residence, where they simply opened his front door and let themselves in. They accosted the co-worker in his bedroom and all three began exchanging blows. One of the twins struck the coworker with a beer bottle. He defended himself with a knife. Afterwards, the twins went to a hospital for treatment of injuries incurred in the fight. In time they were charged with burglary and aggravated battery, to which both pleaded guilty.

The twins have since sued the Tavern for damages, alleging liability under the Dram Shop Act. In response the Tavern has pleaded the forcible felony defense. The trial court agreed that plaintiffs’ claim was barred by this statute. We now have the appeal.

The principal argument raised by plaintiffs in avoidance of the forcible felony defense is that their claim is founded on a “strict liability” statute, the Dram Shop Act, which they say makes the forcible felony defense unavailable. This defense, they argue, would make possible the very kind of harm against which the Dram Shop Act was designed to protect.

But we find nothing about the Dram Shop Act protecting minors who, fortified by drink, break and enter to beat someone with a beer bottle. At common law serving alcohol was not the cause of injury, only its consumption. Barnes v. B.K. Credit Service, 461 So.2d 217 (Fla. 1st DCA 1984). The purpose of the Dram Shop Act was thus not to create liability so much as to abolish the common law rule that had favored taverns serving alcohol to minors.

Then there is the text itself. The statute says the Tavern may be held liable. It does not say shall be liable in damages. Even then, liability is possible only if the Tavern willfully served alcohol to the minor. Given this text and history, one may not plausibly characterize the Dram Shop Act as a strict liability statute. It alters the common law rule favoring taverns but only for willfully serving the minor. It seems to us that a strict liability statute would impose liability any time a Tavern serves a minor with alcohol even if the Tavern were otherwise without fault of any kind. The statute sounds more like an intentional tort.

On the other hand, the forcible felony defense under section 776.085(1) is both mandatory and quite unqualified. It specifies that “any [e.s.] action for damages” is barred if the injury was “sustained by a participant during the commission or attempted commission of a forcible felony.” [e.s.] This immunity statute was enacted in 1987 after the Dram Shop Act had already become law in 1980. It is customary for courts to presume the Legislature knows of existing law when it enacts a new one. Notably there is no exception for Dram Shop Act claims in the 1987 immunity legislation.

At the same time, we note that still another statute prohibits voluntary intoxication as a defense to any crime. If being deliberately drunk is not a defense to a crime, on what basis should Judges read into section 768.125 an implied civil law avoidance of the forcible felony defense? We have been given none.

In the end, there is nothing to construe here. The textual meaning of the 1987 Act is plain: it bars any damages for injuries sustained in a forcible felony. Under this plain meaning, if claimants were engaged in a forcible felony when they suffered injuries, their claims are barred whether Tavern’s conduct be purposeful, careless or faultless.

The injuries to the twins were unquestionably inflicted while they were occupied in aggravatedly battering a man in his bedroom. Nothing in the Dram Shop Act conveys any intent to protect impaired minors while they burgle a house and beat a tenant with a deadly weapon.

Affirmed.

STEVENSON and TAYLOR, JJ., concur.

      . § 768.125, Fla. Stat. (2007) ("a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age ... may become liable for injury or damage caused by or resulting from the intoxication of such minor”).

      . § 776.085(1), Fla. Stat. (2007) ("It shall be a defense to any action for damages for personal injury ... that such action arose from injury sustained by a participant during the commission or attempted commission of a forcible felony.”).

        .See e.g. Sloan v. Coit Int’l Inc., 292 So.2d 15, 17 (Fla.1974) (statute provided for liability without fault or a causal relationship between the violation and the injury); Eckelbarger v. Frank, 732 So.2d 433, 436 (Fla. 2d DCA 1999) (”[T]he strict liability classification is a narrow one, and this is a ‘group of unusual and exceptional statutes.’ ”); see also West v. Caterpillar Tractor Co. Inc., 336 So.2d 80, 90 (Fla.1976) ("Strict liability means negligence as a matter of law or negligence per se, the effect of which is to remove the burden from the user of proving specific acts of negligence.”).

      . The unqualified immunity of the forcible felony defense contrasts with the comparative alcohol defense created by section 768.36(2), Florida Statutes (2007). This latter defense applies only when the claimant is found to have caused more than 50% of his own injuries and bars any recovery for those caused by the defendant. Section 768.36 is not an issue in this appeal.

      . See § 775.051, Fla. Stat. (2007) ("Voluntary intoxication resulting from the consumption ... of alcohol ... is not a defense to any offense proscribed by law. Evidence of a defendant's voluntary intoxication is not admissible to show that the defendant lacked the specific intent to commit an offense....").


author: PER CURIAM.

text:
    Anna BANKS, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-4958.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.

      Anna Banks, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Mark J. Hamel, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

We reverse the order denying appellant’s 3.850 motion and remand for further proceedings on appellant’s claim that a sufficient factual basis did not exist for her plea to attempted robbery in lower court case number 06-15385 and that counsel was ineffective in permitting her to plead to this charge. While the trial court relied on the probable cause affidavit as the factual basis for the plea, a copy of the affidavit was not attached to the trial court’s order of denial. See Farran v. State, 694 So.2d 877 (Fla. 2d DCA 1997). Appellant’s legally sufficient claim that a factual basis did not exist for the charge was not refuted by the trial court’s record attachments. Florida Rule of Criminal Procedure 3.850(d) is not satisfied by merely attaching the entire record on appeal. Hoffman v. State, 571 So.2d 449 (Fla.1990). On remand, the trial court must determine the merits of this claim.

We affirm the denial of appellant’s other claims as they lack merit.

WARNER, FARMER and GROSS, JJ., concur.


text:
    Juan Carlos FAXAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-246.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Rehearing Denied April 3, 2008.
    Juan Carlos Faxas, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed, without prejudice to appellant’s right to exhaust administrative remedies with the Department of Corrections, and thereafter, if unsatisfied with the results, to file a petition for writ of mandamus in the proper venue. See, e.g. Dandashi v. State, 956 So.2d 528 (Fla. 4th DCA 2007)(affirming trial court order denying motion for credit without prejudice to appellant to first exhaust his administrative remedies with DOC, and then file for mandamus in the trial court if necessary); King v. State, 665 So.2d 377 (Fla. 4th DCA 1996). See also Davis v. State, 943 So.2d 975 (Fla. 5th DCA 2006).

FARMER, KLEIN and MAY, JJ., concur.


text:
    David E. QUIRK, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 4D08-472.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2008.
    Brent Del Gaizo of Brent Del Gaizo, P.A., Plantation, for petitioner.
    No response required for respondent.
   PER CURIAM.

We deny the petition for writ of certiorari on the authority of Lescher v. Dep’t. of Highway Safety & Motor Vehicles, 946 So.2d 1140 (Fla. 4th DCA 2006), and certify the same question that this court certified in Lescher:

Does the amendment to section 322.271(4), Florida Statutes, which eliminated hardship driver’s licenses effective July 1, 2003, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?

SHAHOOD, C.J., FARMER and MAY, JJ., concur.


author: SALTER, J.

text:
    Reynyer AGUILERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-422.
    District Court of Appeal of Florida, Third District.
    March 12, 2008.

      Black, Srebnick, Kornspan & Stumpf and Roy Black and Christine M. Ng, Miami, for appellant.
    Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for appellee.
    Before COPE, GREEN, and SALTER, JJ.
   SALTER, J.

Reynyer Aguilera appeals the judgment and sentence following a jury verdict finding him guilty of second-degree murder, aggravated battery, and use of a firearm while committing a felony. Aguilera raises two points here: that an “and/or” jury instruction was fundamental and reversible error in light of the actions of his co-defendant, and that there was not legally sufficient evidence to support Aguilera’s conviction for second-degree murder (as opposed to manslaughter).

Because we find that Aguilera’s own, and substantially undisputed, acts were independent and sufficient to support his conviction, such that none of Berdecia’s actions can be said to have tainted or influenced the jury’s deliberations even if mistakenly attributed to Aguilera, we affirm.

The Incident

Aguilera, age twenty-two, lived with his girlfriend Kristin, age twenty, and their 22-month-old daughter. Aguilera and Kristin had lived together about three years, and Aguilera considered her to be his wife.

On a Friday night that was to prove tragic, Kristin called Aguilera to tell him that she and her step-sister were going .to go out with other young women. Aguilera was upset that she was going out without him. Kristin did not tell Aguilera that two young men, Danny and Ignacio, would be accompanying the group to a Miami Beach night club. Aguilera was suspicious, and he and a Mend followed the group in the friend’s car until that car had a flat tire.

After repairing the tire, Aguilera called another friend, codefendant Abdel Berde-cia, to meet him at Aguilera’s father’s house so that they could try to find Kristin and her group. Ultimately, Aguilera, Berdecia, and two other men drove to the home of one of the young women with Kristin, Melissa, to wait for them. They arrived at the house at about 2:00 a.m. and waited in a car.

Berdecia had a concealed weapons permit, and that night he had his loaded, holstered handgun with him. Aguilera knew that Berdecia usually carried a handgun and that he had a permit to do so. When Berdecia got in the car that night, Aguilera saw that he had the gun with him. Aguilera asked Berdecia to let him hold the gun, but Berdecia refused to let him take it. Aguilera wanted to hold the gun “for protection from the guys” accompanying Kristin and the other women, “in case of anything.”

Kristin, the two other women, the victim (Ignacio), and the other young man (Danny) in the group arrived at Melissa’s home some time after 4:00 a.m. Danny gave Kristin a kiss on the cheek as the group got out of the car. Aguilera saw this, grabbed the gun from Berdecia, and rushed with Berdecia and their two other friends toward Kristin and her group. Aguilera first tried to hit Danny with the gun, but that strike did not draw blood. Danny and Ignacio then ran to the front foyer of Melissa’s house and banged on the locked door.

Berdecia had with him an asp — an extendable baton — and began to use it to strike Danny, while Aguilera hit Ignacio with the gun. The gun discharged, firing a single round into the side of Ignacio’s head, and he later died from that wound.

After the gunshot, Aguilera and his group initially left the scene in their car. Aguilera returned to the scene almost immediately, however, without the gun, and told the police that he had been the shooter. He told the police that he had tried to hit Ignacio with the gun, and that the gun had gone off accidentally.

“And/Or”

Berdecia and Aguilera were charged with second-degree murder with a firearm, aggravated battery with a deadly weapon, and use of a firearm during the commission of a felony. They were tried on these charges together. Neither code-fendant testified or presented any witnesses.

Several jury instructions requested by Berdecia’s counsel (and approved without objection by Aguilera’s counsel) included “and/or” to link the two codefendants as actors. As we observed in reversing Berdecia’s conviction on the manslaughter charge (but not on the aggravated battery charge):

Florida courts have held that the use of the conjunction “and/or” between the names of the codefendants in jury instructions can result in fundamental error. See Harris v. State, 937 So.2d 211 (Fla. 3d DCA 2006); Dorsett v. McRay, 901 So.2d 225 (Fla. 3d DCA 2005); Davis v. State, 895 So.2d 1195 (Fla. 2d DCA 2005); Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003); Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000). This is because the use of this conjunction creates a situation in which the “jury may have convicted the [defendant] based solely upon a finding that [the] codefendant’s conduct satisfied an element of the offenses.” See, e.g., Davis, 895 So.2d at 1196.

Berdecia, 971 So.2d at 850.

We have previously held, however, that such an instruction can be harmless error when one codefendant is convicted of actions that could not have been based on the actions of the other. Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005). See also Green v. State, 968 So.2d 86 (Fla. 2d DCA 2007). The error in an “and/or” instruction is not subject to any automatic or per se rule requiring reversal as to all codefendants. Rather, a reviewing court is to consider the totality of the circumstances and to determine whether the acts of one codefendant, if erroneously attributed to another as a result of the erroneous instruction, may have reversibly infected the jury verdict.

Error Fundamental as to Berdecia, Harmless as to Aguilera?

The issue presented, then, is whether any of Berdecia’s actions, if erroneously attributed by the jury to Aguilera, might have contributed to a guilty verdict on the charges of second-degree murder, aggravated battery, and use of a firearm during the commission of a felony. In Berdecia’s case, we found that Aguilera’s use of the firearm and the discharge of that firearm, when attributed to Berdecia via the “and/ or” instruction, irreparably tainted Berde-cia’s conviction. Berdecia did not hold or use the gun during the attack at the front of the home, and he was sufficiently removed from the occurrences between Aguilera and the victim that the instruction was clearly harmful regarding the manslaughter charge against Berdecia.

Not so, however, in the second-degree murder charge against Aguilera and the assumed attribution by the jury of any action by Berdecia to Aguilera. Aguilera argues that the State obtained the verdict by arguing to the jury during closing, that “we probably wouldn’t be here” but for Berdecia’s action in bringing the gun with him, and that “everyone knows you don’t bring a gun and you don’t bring a deadly weapon to a fist fight.”

The fact that Berdecia brought the gun, if attributed to Aguilera, does not establish an element in the second-degree murder ease against Aguilera that was not already indisputably established by Aguil-era himself. Second-degree murder does not rise or fall on premeditation — rather, the State was required to prove that Aguil-era killed the victim by an act “imminently dangerous to another and evincing a depraved mind regardless of human life, although without any premeditated design to effect the death of any particular individual.” A “depraved mind” is interpreted to mean “ill will, hatred, spite, or evil intent.” Turner v. State, 298 So.2d 559, 560 (Fla. 3d DCA 1974).

Berdecia brought the gun as Aguilera and other friends assembled over two hours before the shooting, but he never used it. Berdecia never attacked the shooting victim, Ignacio, with the asp. He did not have a relationship with Kristin that might make him jealous or angry.

Aguilera admitted that he was suspicious, angry, and jealous. He took the gun from Berdecia. Over two hours earlier, Berdecia had refused to hand over the gun to Aguilera. Only Aguilera attacked the victim and the other young man with a firearm. On these facts, Berdecia’s actions did not prove the elements of the charges against Aguilera, even though Aguilera’s actions can be said to have strengthened the “and/or” case against Berdecia. Here, as in Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005), the flawed “and/or” instruction was harmless error as to one of the two codefendants— in this case, as to Aguilera.

Second-Degree Murder Versus Manslaughter

The Florida Supreme Court has held that the intentional and forceful striking of another person in anger with a loaded pistol, resulting in the discharge of that weapon and death of the victim, “seems rather plainly” to satisfy the elements of the second-degree murder statute. State v. Bryan, 287 So.2d 73, 76 (Fla.1973). We agree, and we decline to regard that holding as mere dicta (as argued by Aguilera).

Conclusion

The confusion created by “and/or” in all areas of the law — contracts, criminal law, and otherwise — is certainly not a recent development or a contagion confined to Florida. Over 70 years ago, an obviously annoyed Justice of the Supreme Court of Wisconsin wrote:

[W]e are confronted with the task of first construing “and/or,” that befuddling, nameless thing, that Janus-faced verbal monstrosity, neither word nor phrase, the child of a brain of someone too lazy or too dull to express his precise meaning, or too dull to know what he did mean, now commonly used by lawyers in drafting legal documents, through carelessness or ignorance or as a cunning device to conceal rather than express meaning with view to furthering the interest of their clients. We have even observed the “thing” in statutes, in the opinion of courts, and in statements in briefs of counsel, some learned and some not.

Employers’ Mut. Ins. Co. v. Tollefsen, 219 Wis. 434, 263 N.W. 376, 377 (1935).

There is a superficial inconsistency in determining that a flawed jury “and/or” instruction was harmful and fundamental error as to one codefendant, Berdecia, but harmless as to the other, Aguilera. We are convinced, however, that in this unusual case, the excision of the evidence relating to Berdecia and Berdecia’s acts would not have affected the jury’s verdict against Aguilera — the uneontroverted and remaining evidence of guilt was simply overwhelming.

On Aguilera’s second point, we find that the State proved, and the jury properly found, the essential elements that distinguish second-degree murder from manslaughter: Aguilera’s “ill will, hatred, spite, or evil intent” toward a man Aguil-era believed had been at a night club with the woman Aguilera considered his wife, and the obvious danger inherent in selecting a loaded, deadly weapon as the instrument with which to strike the victim.

Affirmed.

      . We recently reversed in part the conviction of that codefendant, Abdel Berdecia, based upon the use of "and/or" in the manslaughter jury instruction and the resulting possibility that Aguilera’s actions might be attributed by the jury to Berdecia. In doing so, we determined that the flawed instruction — provided by Berdecia's own counsel — constituted fundamental error as to Berdecia. Berdecia v. State, 971 So.2d 846 (Fla. 3d DCA 2007).

      . These admissions regarding the handgun were voluntarily given to the police by Aguil-era shortly after the shooting; a transcript was read to the jury at trial.

      . The evidence was conflicting as to whether Aguilera accidentally discharged the firearm while attempting to strike the victim or whether he pointed the gun at the victim and fired. The gun was not in contact with the victim’s head when it fired.

      . § 782.04(2), Fla. Stat. (2005).

      . This views the conflicting testimony on the discharge of the handgun in the light most favorable to Aguilera.


author: GROSS, J.

text:
    David W. FARMER, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4340.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.
    John F. Cotrone, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

We affirm appellant’s conviction for third degree murder, finding no fundamental error in the jury instruction on justifiable use of deadly force.

David Farmer was charged with the first degree murder of Steve Miller. Farmer and Miller got into a fight over a woman. The fight lasted less than thirty seconds; Miller was eight inches taller and heavier than Farmer, who suffered a bloody nose. Walking away from the fight, and feeling like a coward, Farmer said he would be back. Miller said, “If he comes back, I’ll kick his ass again.”

Within minutes, Farmer was back and the fight began anew. Farmer and Miller tussled and fell down a staircase. During the fight, Farmer twice stabbed Miller with a work tool. Miller died shortly after he was rushed to an emergency room. At trial, Farmer testified that because he feared for his life, he stabbed Miller to try to escape from the struggle.

The circuit court instructed the jury on first degree murder, and the lesser included offenses of second degree murder, third degree felony murder, and manslaughter. The court instructed the jury on justifiable and excusable homicide. The court’s instruction on the justifiable use of deadly force included this excerpt:

A person is justified in using force likely to cause death or great bodily harm if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself or another. However, the use of force likely to cause death or great bodily harm is not justifiable if you find that the defendant, David Farmer was attempting to commit, committing or escaping after the commission of an aggravating [sic] battery.

The defense did not object to the giving of this instruction. The italicized portion of the instruction is almost identical to the one given in Giles v. State, 831 So.2d 1263, 1266 (Fla. 4th DCA 2002), that we found to be so “circular and confusing” that it negated the defense. In Dunnaway v. State, 883 So.2d 876 (Fla. 4th DCA 2004), we held that the giving of the Giles jury instruction was fundamental error. See also Ruiz v. State, 900 So.2d 733 (Fla. 4th DCA 2005) (“The lower court committed fundamental error by charging the jury on the ‘forcible felony’ exception to self-defense where appellant was not engaged in an independent forcible felony.”); Hickson v. State, 873 So.2d 474 (Fla. 4th DCA 2004).

However, the recent case of Martinez v. State, 33 Fla. L. Weekly S125, *9, — So.2d -, -, 2008 WL 450327 (Fla. Feb. 21, 2008), expressly disapproved of cases such as Dunnaway, “which hold that an erroneous reading of the forcible felony jury instruction always constitutes fundamental error.” In Dunnaway, we held that the erroneous instruction “constitutes fundamental error if there is a reasonable possibility that the instruction may have led to the conviction.” 883 So.2d at 879. Martinez recognized that the correct test for fundamental error in a jury instruction is more severe:

To justify not imposing the contemporaneous objection rule, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” In other words, “fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict.”

Martinez, 33 Fla. L. Weekly S125 at *5, — So.2d at -(quoting State v. Delva, 575 So .2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960))) (emphasis added). When the challenged jury instruction involves an affirmative defense, “fundamental error only occurs where a jury instruction is ‘so flawed as to deprive defendants claiming the defense ... of a fair trial.’ ” Martinez, 33 Fla. L. Weekly S125 at *5, — So.2d at - (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).

Under Martinez, a court’s fundamental error analysis requires a review of the complete record in the case to see if the erroneous instruction deprived the defendant of a fair trial. Using this test, we hold that the erroneous instruction did not give rise to fundamental error.

Neither the state nor the defense referred to the erroneous instruction in closing argument. The defense attorney referred to another portion of the instruction, involving a defendant who “initially provoked the force,” which applied here because the killing arose after Farmer returned to the scene and jumped the victim to defend his honor. The defense attorney argued that this case fit within the definition of justifiable homicide:

This is not someone who committed premeditated murder. This is someone who came back to confront Steve Miller and because of a stupid decision, who then gets himself in a situation where he fears that he is going to pass out or die, and then he takes the only action left [for] him to get out of there.

The prosecutor did not mention the erroneous instruction; he argued a different aspect of self-defense, that deadly force was not justified because the appearance of danger was not “so real that a reasonably cautious and prudent person under the same circumstances would have believed that the danger could be avoided only through the use of that force.”

The erroneous charge was part of a set of jury instructions that experienced criminal lawyers have difficulty explaining. In addition to justifiable homicide and excusable homicide, the trial judge read the Giles instruction as part of the standard charge on justifiable use of deadly force. See Fla. Std. Jury Instr. (Crim.) 3.6(f). To quote Professor Lawrence Friedman, the language of a charge such as 3.6(f) is “technical, legalistic, utterly opaque ... [and] almost useless as a way to communicate to juries; the medium contain[s] no message.” Lawrence M. Friedman, A History of American Law 399 (2d ed. 1985) (quoted in John L. Kane, Giving Trials a Second Look, 80 Denv. U.L.Rev. 738, 739 (2003)). We suspect that instead of trying to parse the legal nuances of the charge, or trying to figure out how the charge on justifiable use of deadly force relates to excusable or justifiable homicide, juries use their common experience and apply a street version of self defense that allows a defendant to use a reasonable amount of force under the circumstances, and no more.

With this difficult jury instruction and the failure of either lawyer to mention the erroneous portion of it, we do not find that the instruction deprived Farmer of his defense. The prosecutor did not exploit the erroneous instruction in closing argument. The defense attorney competently used other portions of the jury charge to make his defense. Two trained lawyers and an experienced trial judge did not notice the error. It is unlikely that a jury of laymen would have seized on one errant sentence in pages of instructions to decide the case.

Affirmed.

WARNER and FARMER, JJ., concur.

      . Martinez declined to address "whether the improper reading of [the forcible felony] jury instruction can ever constitute fundamental error.” 33 Fla. L. Weekly S 125 at *6 n. 5, - So.2d at - n. 5.

      . The supreme court recognized in Martinez that the error with the forcible felony portion of Charge 3.6(f) occurs with ''frequency.” 33 Fla. L. Weekly SI25 at *6 n. 5, - So.2d at - n. 5. We agree with the supreme court on the frequency of the error in the forcible felony jury instruction; in spite of numerous appellate decisions, courts persist in giving the incorrect instruction, usually with no objection from the defense or the state. The frequency of this error supports the view that the giving of the erroneous charge cannot be fundamental error — a charge that so baffles trained lawyers and judges is unlikely to have a profound effect on jurors who are confronting a Gordian knot of law for the first time.


author: TAYLOR, J.

text:
    Robert KANE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2279.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2008.

      Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   TAYLOR, J.

Robert Kane appeals his convictions for sexual battery on a child less than twelve years old and sexual activity with that same child when she was twelve years old or older but less than eighteen years old. The child victim of these crimes is appellant’s biological daughter, J.K. On appeal, appellant challenges the trial court’s admission of the following evidence: (1) nude photographs taken of the victim by appellant during the ten-year period of sexual molestation, and (2) evidence of an incident of molestation involving the victim’s younger sister, S.K. We conclude that the trial court did not abuse its discretion in admitting this evidence and affirm the judgments of conviction.

Appellant was charged in a two-count information with sexual molestation of J.K. that occurred from January 1,1996 to May 16, 2000, when J.K. was between eight and eleven years of age (Count I), and sexual activity with J.K. that occurred from May 17, 2003 to April 7, 2004, when she was fifteen years old (Count II). Before trial, the state filed a notice of intent to offer Williams rule evidence to corroborate J.K.’s allegations. The trial court held an evidentiary hearing on appellant’s motion in limine to exclude the evidence.

J.K. was seventeen years old when she testified at the hearing on appellant’s motion in limine to exclude Williams rule evidence. According to her testimony, on April 7, 2004, J.K. walked upstairs to the loft in the family home and saw her four-year old sister, S.K., lying face down over the armrest of a couch and her father (appellant) behind her. Appellant, wearing a T-shirt and underwear, had her little sister bent over the chair, with her head and buttocks positioned at the same level. Appellant was standing behind S.K. and pulling down her underwear. Appellant was crouched down so that his genitals were near S.K.’s buttocks. S.K. looked scared, and appellant looked surprised to see J.K. observing the scene. He pulled up S.K’s underwear and told J.K. to go downstairs.

After that incident, J.K. felt she needed to protect her sister, so she decided to tell her mother about the incident with S.K., as well as appellant’s sexual molestation of J.K. over the past eight years, from 1996 to 2004. J.K’s mother contacted the police, and a detective requested that she, S.K., and J.K. go directly to the Child Protection Team. After J.K. and S.K. were interviewed by the Child Protection Team, the detective executed a controlled phone call between J.K. and appellant. During the phone call, J.K. confronted appellant about what had happened that morning with S.K. Appellant denied any wrongdoing with S.K., but acknowledged - having sexual activity with J.K. since she was eight years old. He accused J.K. of being a “willing participant” and threatened to punish her for talking about the matter on the telephone. Appellant was arrested and charged with sexual abuse.

J.K. testified that from January 1996 to April 2004 appellant had sexual contact with her in their home on too many occasions to count; the abuse occurred more than once a month. She explained that she was often left alone in the house with her father, while her mother ran errands and worked long hours. She said that the molestation occurred at these times. Appellant and J.K. were nude when appellant molested J.K. J.K. recalled appellant performing oral sex on her and appellant forcing her to perform oral sex on him during this period. Appellant would touch J.K.’s breasts, vagina and anus with his fingers, tongue and/or his penis. In 1999, when J.K. was eleven years old, appellant attempted both anal and vaginal penetration but stopped when J.K. told him that it was causing her pain. The last sexual episode occurred a few months before trial. At that time, the defendant forced J.K. into his room, told her to take off her clothes, threw her on the bed, “licked around [her] vagina with his tongue,” and then had J.K. perform oral sex on him until he ejaculated. J.K. stated that she was afraid of her father because he had a bad temper and would hit her.

From the time J.K. was about five years old until she was fourteen, appellant would make J.K. undress and pose nude in various pornographic positions while he took pictures of her with his Polaroid camera. Appellant would pose her in a manner that would expose her genitals. He would then show her the photographs and tell her how good she looked. The photographs were sometimes taken before sexual activity and sometimes afterwards. Some were taken without any accompanying sexual activity. After J.K. disclosed the history of abuse to her mother, the photographs were found and recovered from a locked zippered pouch stored in appellant’s closet.

The trial court conducted an evi-dentiary hearing on appellant’s motion to exclude Williams rule evidence. It allowed admission of (1) twenty-eight nude photographs of J.K., which were taken by appellant between January 1, 1996 and April 7, 2004; (2) testimony about the first act of molestation that J.K. could remember, which occurred when appellant, operating a limousine, drove J.K. home from elementary school and had J.K., who was in the back of the limousine, pull down her underwear and place her buttocks into the air so appellant could see J.K.’s genital area; (8) testimony about numerous uncharged sexual acts that appellant committed upon J.K. between the ages of eight and sixteen; and (4) testimony about the incident that occurred between appellant and the victim’s younger sister, S.K., on April 4, 2007. Only the first and fourth items of evidence are the subject of this appeal.

The trial court’s ruling on the admissibility of collateral crime evidence is reviewed for an abuse of discretion. See Macias v. State, 959 So.2d 782, 784 (Fla. 4th DCA 2007) (citing Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003)); Cadet v. State, 809 So.2d 43, 46 (Fla. 4th DCA 2002).

Section 90.404(2)(b)(1) provides that “[i]n a criminal case in which the defendant is charged with a crime involving child molestation, evidence of the defendant’s commission of other crimes, wrongs, or acts of child molestation is admissible, and may be considered for its bearing on any matter to which it is relevant.” The term “child molestation” is defined as conduct proscribed by section 794.011 or section 800.04 when committed against a person sixteen years of age or younger. § 90.404(2)(b)(2). Thus, to be admissible under this section, the collateral crime evidence must constitute a crime, wrong, or act of child molestation under section 794.011 or 800.04, Florida Statutes. See Foreman v. State, 965 So.2d 1171, 1173-74 (Fla. 2d DCA 2007).

Appellant argues that the trial court abused its discretion in admitting the photographs because they were not relevant and were not admissible under section 90.404(2)(b)(1) as collateral acts of molestation. He contends that taking pornographic photos of a child is not a crime under either section 794.011 or 800.04, but, instead, a violation of a different statute, section 827.071, Florida Statutes. He points out that appellant was separately charged under section 827.071 with twenty-eight counts of promoting sexual performance by a child.

We believe, however, that appellant’s conduct in coercing his daughter to exhibit her genitals in pornographic photographs does fall within the child molestation activity proscribed by section 800.04. Section 800.04(6)(a)(2) states that one who solicits a person under sixteen years of age to commit a lewd or lascivious act commits lewd or lascivious conduct. Intentionally exposing the genitals in a lewd or lascivious manner is commonly considered a lewd or lascivious act. Thus, when appellant forced his minor daughter to expose her genitals in a lewd way for his camera, he committed lewd or lascivious conduct, which qualifies as “other crimes, wrongs, or acts of child molestation” under section 90.404(2)(b)(l). Accordingly, the photographs were admissible and could be considered for any relevant purpose, including to show motive, intent, plan, or absence of mistake, as well as to corroborate J.K.’s claims of sexual abuse against appellant. See Mendez v. State, 961 So.2d 1088, 1090 (Fla. 5th DCA 2007) (holding that section 90.404(2)(b) authorizes the admission of collateral crime evidence in child molestation prosecution for any relevant purpose, including to corroborate the victim’s testimony by showing that the accused had a propensity for such criminal conduct). Furthermore, the probative value of the photographs was not outweighed by any prejudicial effect upon appellant.

Regardless of whether appellant’s conduct falls within the child molestation activity proscribed by section 800.04, we do not find that the photographs constitute “collateral crimes” evidence, such that section 90.404(2)(b) governs their admissibility. Instead, we view the photographs as evidence of other acts or crimes which are inseparable from or inextricably intertwined with the crimes charged. Such evidence is not Williams rule evidence; it is admissible under section 90.402, Florida Statutes, because “it is a relevant and inseparable part of the act which is in issue .... [I]t is necessary to admit the evidence to adequately describe the deed.” Coolen v. State, 696 So.2d 738, 742-43 (Fla.1997) (citing Griffin v. State, 639 So.2d 966, 968 (quoting Charles W. Ehrhardt, Florida Evidence § 404.17 (1993 ed.))). Here, the victim testified that, over a ten-year period, when she was home alone with appellant, appellant repeatedly molested her. He often posed her for pornographic pictures during these episodes of sexual abuse. He used his camera as a tool to groom and prepare her for the abuse. The photographs are thus inseparable crime evidence, linked together in time, place, and circumstance with the charged sex offenses. They show the entire context in which the molestation occurred. They depict appellant’s unnatural and indecent disposition towards his daughter and document the scene of the abuse she suffered throughout her childhood.

Turning next to appellant’s point on appeal regarding the admission of J.K’s testimony about the incident she witnessed between appellant and her younger sister, S.K., we conclude that the trial court properly evaluated and admitted this evidence under section 90.404(2)(b) and McLean v. State, 934 So.2d 1248, 1259 (Fla.2006) (holding that the trial court must consider the similarity of the collateral act of molestation and the charged offense in conducting an analysis of whether the probative value of the evidence is substantially outweighed by the danger of unfair prejudice).

Finally, as to both items of challenged evidence, we conclude that the trial court was careful to give appropriate cautionary instructions to the jury throughout the trial and to prevent the evidence from becoming a feature of the trial. See McLean, 934 So.2d at 1262; Ortiz v. State, 869 So.2d 1278, 1280 (Fla. 4th DCA 2004). Accordingly, we affirm appellant’s judgments of conviction.

Affirmed.

SHAHOOD, C.J., and FARMER, J., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).