author: PARIENTE, C.J.

text:
    J.I.S., a child, Petitioner, v. STATE of Florida, Respondent.
    No. SC05-1097.
    Supreme Court of Florida.
    May 11, 2006.

      Nancy A. Daniels, Public Defender, John W. Hedrick and P. Douglas Brink-meyer, Assistant Public Defenders, Second Judicial Circuit, Tallahassee, FL, for Petitioner.
    Charles J. Crist, Jr., Attorney General, Robert R. Wheeler, Bureau Chief, Criminal Appeals, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, FL, for Respondent.
   PARIENTE, C.J.

Is a juvenile delinquent who receives an indeterminate residential commitment to the Department of Juvenile Justice (DJJ) entitled to credit for time served in secure detention before the commitment? The First District Court of Appeal, whose decision we review, answered this question in the negative but certified conflict “[t]o the extent our opinion conflicts with E.R. v. State, 584 So.2d 158 (Fla. 2d DCA 1991), L.K. v. State, 729 So.2d 1011 (Fla. 4th DCA 1999), J.B. v. State, 829 So.2d 376 (Fla. 4th DCA 2002), and C.C. v. State, 841 So.2d 657 (Fla. 4th DCA 2003).” J.I.S. v. State, 902 So.2d 890, 892 (Fla. 1st DCA 2005). We exercise our discretionary jurisdiction to resolve the certified conflict. See art. V, § 3(b)(4), Fla. Const.

We agree with the First District that on an “indeterminate” commitment, which is a residential commitment on which DJJ retains authority over the offender until he or she reaches a statutorily prescribed age, precommitment credit for time served in secure detention is not required by any court rule, statute, or constitutional provision. Accordingly, we approve the First District’s decision. However, to ensure that commitments will not exceed statutory limits, credit is required on a “determinate” commitment for an offense such as a misdemeanor that will necessarily conclude before the juvenile reaches the age at which DJJ’s authority ends. To the extent that the First District’s certification of conflict suggests that other district courts have held that credit is required on indeterminate commitments, we clarify this important distinction. We therefore disapprove the Second District’s failure to distinguish determinate and indeterminate commitments in requiring credit in E.R., but approve the Fourth District’s requirement of credit on determinate sentences in L.K, J.B., and C.C.

FACTS AND PROCEDURAL HISTORY

J.I.S. was taken into custody and placed in secure detention on a charge of lewd or lascivious battery on a person under sixteen, a second-degree felony. His case was continued five times and he remained in secure detention for eighty-six days pending an adjudicatory hearing. After finding J.I.S. guilty, the trial court again ordered that he remain in secure detention. By the time of his disposition hearing, he had been in secure detention for 107 days. In the disposition hearing, the trial court imposed a high-risk commitment to DJJ followed by postcommitment probation. The trial court denied J.I.S.’s oral request for credit for time served in secure detention. The written “Sentencing Order and Judgment” form is silent as to predisposition credit.

J.I.S. appealed. His appellate counsel filed a motion to correct disposition error under Florida Rule of Juvenile Procedure 8.135(b)(2). The motion requested credit for the 107 days served in secure detention before disposition. Following a hearing, the trial court granted the motion “in principle” but denied it “in reasonable effect.” The trial court concluded that because J.I.S.’s commitment on a second-degree felony punishable by a fifteen-year sanction was indefinite, credit for time served would have no real meaning.

The First District affirmed the denial of credit, giving two reasons. First, the court observed that because juvenile commitments are indeterminate in length, there is no definite point against which credit for time served could be subtracted. Thus, “an award of credit for time served in secure detention would have no effect on the length of a juvenile’s commitment, and would be a futile exercise and a waste of judicial resources.” J.I.S., 902 So.2d at 890. Second, the court relied on the difference in purposes served by incarceration in the adult criminal and juvenile justice systems. According to the First District, credit for time served is consistent with the punitive purpose of incarceration in the criminal justice system in that it limits the overall duration of imprisonment to the term imposed by the sentencing court. See id. at 891. In contrast, a juvenile delinquency commitment serves the primary purpose of rehabilitation or treatment, and concludes when the offender is rehabilitated or treated. “That treatment or rehabilitative effort may take longer in some situations than in others. The time required depends on how well the juvenile responds. Accordingly, the rationale for awarding credit for time served is not applicable in the juvenile context.” Id. at 892.

In a separate opinion concurring in the judgment, Judge Benton noted that because a juvenile delinquency commitment cannot exceed the maximum sentence that could be imposed for the crime in the criminal justice system, credit for time served in secure detention could determine the date the juvenile must be released on a commitment for a misdemeanor. He also pointed out that an adjudication on a felony such as lewd or lascivious battery could subsequently be reduced to the misdemeanor of simple battery, for which a commitment could not exceed one year. Therefore, “[t]he better practice, in my view, is for the trial judge to note in the disposition order any time the juvenile has already spent in confinement. Making such a finding would prove useful in some cases and should not prove anti-therapeutic in any way.” Id. at 893 (Benton, J., concurring in the judgment).

ANALYSIS

This case presents the issue of a juvenile’s entitlement to credit for time served in secure detention against a residential commitment to DJJ. The facts are not in dispute. In a recent decision concerning entitlement to jail credit on an adult sentence, we addressed the issue de novo. See Moore v. State, 882 So.2d 977, 980 (Fla.2004). The same review standard applies here. In addressing the issue, we look to the sources of the requirement of presentencing jail credit; the differences in adult criminal sentencing and juvenile delinquency sentencing, both in purpose and operation; and pertinent district court precedent, including the decision below and the certified conflict cases.

CREDIT FOR TIME SERVED IN THE CRIMINAL JUSTICE SYSTEM

An adult offender sentenced to a term of imprisonment is statutorily entitled to credit for time served in county jail before imposition of sentence:

A sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence. The credit must be for a specified period of time and shall be provided for in the sentence.

§ 921.161(1), Fla. Stat. (2005). Relying on the mandatory language of this provision, this Court has held that “a sentence that does not mandate credit for time served would be illegal since a trial court has no discretion to impose a sentence without crediting a defendant with time served.” State v. Mancino, 714 So.2d 429, 433 (Fla.1998). Under Mancino, the failure to grant full presentencing credit is cognizable in a motion to correct an illegal sentence filed under Florida Rule of Criminal Procedure 3.800(b). See id. The trial court must specify presentence jail credit even in imposing a sentence of life imprisonment. See Jenkins v. State, 346 So.2d 1055, 1055 (Fla. 2d DCA 1977) (holding that under section 921.161(1), the “trial court should have specified how much credit time appellant was entitled to have notwithstanding the imposition of a life sentence”); Sutton v. State, 334 So.2d 628, 629 (Fla. 4th DCA 1976) (ordering credit for time served against twenty-five-year minimum term on life sentence).

PRECOMMITMENT CREDIT IN THE JUVENILE DELINQUENCY SYSTEM

No provision corresponding to section 921.161 exists in chapter 985, Florida Statutes, which governs juvenile delinquency proceedings, or in the Florida Rules of Juvenile Procedure. Therefore, the obligation to give juveniles credit for time served in secure detention “was born of judicial interpretation.” C.C., 841 So.2d at 658. Precedent on this issue reflects a distinction in adult and juvenile sentencing. In the criminal justice system, the maximum sentence for an offense is prescribed by statute. See § 775.082, Fla. Stat. (2005). Section 985.231(l)(d), Florida Statutes (2005), ties the length of the maximum juvenile commitment to “the maximum term of imprisonment that an adult may serve for the same offense.” However, this provision also imposes a second ceiling for commitments on crimes such as the second-degree felony in this case, in which the commitment could in theory last long into the offender’s adulthood. In cases such as this, the juvenile’s age rather than the maximum adult punishment determines the maximum potential commitment. In most instances, these commitments must conclude no later than the offender’s twenty-first birthday. See § 985.231(l)(d) (“Notwithstanding s. 743.07 and this subsection, and except as provided in ss. 985.201 and 985.31, a child may not be held under a commitment from a court under this section after becoming 21 years of age.”). Courts sometimes refer to commitments circumscribed by the maximum adult punishment as “determinate” and those limited only by the offender attaining a certain age as “indeterminate.” C.C., 841 So.2d at 658. As will be seen, this distinction is crucial in determining entitlement to credit for time served in secure detention.

One of the first district court decisions requiring precommitment credit in juvenile delinquency cases was the 1991 decision in E.R. There the Second District held that a juvenile offender was entitled to credit for time served in secure detention on a juvenile commitment for three felonies and a misdemeanor. See E.R., 584 So.2d at 158. In requiring that the credit be granted, the Second District relied on Tal-Mason v. State, 515 So.2d 738 (Fla.1987), in which this Court held that an individual must be granted credit for time served in a state mental institution while incompetent to stand trial on a criminal charge against a sentence subsequently imposed upon conviction. In E.R., the Second District applied Talr-Mason’s requirement of presentence credit for time spent in “any institution serving as the functional equivalent of a county jail,” id. at 740, to secure juvenile detention. The court reasoned that “[ajlthough rehabilitation may outweigh retributive punishment as a purpose of the Florida Juvenile Justice Act, secure detention closely resembles county jail in that appellant is deprived of his liberty, and is in the total custody and control of the state at all times.” E.R., 584 So.2d at 158. The Second District in E.R. did not distinguish felonies and misdemeanors for purposes of precommitment credit. The court remanded for the trial court to grant the credit “against the period of commitment which shall terminate at his nineteenth birthday, or as otherwise provided by law.” Id.

As reflected in E.R., the law provides alternative ceilings on a juvenile commitment. Section 985.231(l)(d) provides in pertinent part:

Any commitment of a delinquent child to the department must be for an indeterminate period of time, which may include periods of temporary release; however, the period of time may not exceed the maximum term of imprisonment that an adult may serve for the same offense, except that the duration of a minimum-risk nonresidential commitment for an offense that is a misdemean- or of the second degree, or is equivalent to a misdemeanor of the second degree, may be for a period not to exceed 6 months.... Notwithstanding s. 743.07 and this subsection, and except as provided in ss. 985.201 and 985.31, a child may not be held under a commitment from a court under this section after becoming 21 years of age.

Under this provision, apart from the exception for second-degree misdemeanors, a juvenile commitment for any offense cannot extend beyond the duration of the punishment authorized for adults in the Criminal Code or the offender’s twenty-first birthday, whichever comes first.

The Fourth District issued several opinions on precommitment credit that, unlike the Second District in E.R., recognized a distinction between determinate and indeterminate commitments. In L.K, the Fourth District cited E.R. in requiring credit for time served in secure detention before adjudication against a one-year commitment for the first-degree misdemeanor of simple battery. 729 So.2d at 1011. In D.T. v. State, 820 So.2d 1091 (Fla. 4th DCA 2002), the Fourth District, relying on L.K, ordered that credit for time served in secure detention be granted against the one-year maximum high-risk residential commitment for a first-degree misdemeanor. Id. at 1092. In J.B., the Fourth District ordered that credit for time served in secure detention be granted against a residential commitment for two first-degree misdemeanors and one second-degree misdemeanor. 829 So.2d at 378.

In C.C., the Fourth District followed E.R., L.K, and D.T. in requiring predisposition credit for time served in secure detention against a moderate-risk residential commitment for a misdemeanor. 841 So.2d at 658-59. The court recognized a distinction, for purposes of precommitment credit, between commitments limited by the statutory maximum for the underlying crime and those limited only by the child attaining a certain age:

[I]t is only where a determinate length of commitment exists that such credit can be given any real meaning. This will occur in juvenile misdemeanor cases only where the maximum period of commitment is limited to a year and when the juvenile is committed within one year of reaching the age of nineteen (19).
The juvenile justice system is designed to rehabilitate youth. Accordingly, juveniles are committed for indeterminate lengths of time. It is, therefore, generally impossible to fix a date from which to deduct time spent in secure detention. Perhaps this is why there is no comparable statute [to section 921.161(1) ] found in Chapter 985. Nevertheless, this is one of those cases involving a misdemeanor where the credit for time served in secure detention can find certainty.

Id. The Fourth District applied the distinction for felony and misdemeanor commitments in its en banc decision in J.W. v. State, 879 So.2d 680 (Fla. 4th DCA 2004), which involved both. There the child was committed for a second-degree felony, throwing a deadly missile, and criminal mischief, a first-degree misdemeanor. Id. at 681. The Fourth District held that “credit must be given, as it relates to the misdemeanor offense, so J.W. does not receive a disposition greater than the sentence he could have received as an adult.” Id. at 682 (emphasis supplied).

PRECOMMITMENT CREDIT AND THE GOALS OF CHAPTER 985

In this case, the First District held that “juveniles whose dispositions are to indeterminate commitment programs are not entitled to credit for time served in secure detention.” J.I.S., 902 So.2d at 892. The First District disagreed with E.R’s reliance on Talr-Mason to require precommitment credit on a commitment potentially lasting until the offender ages out of the juvenile justice system:

In Tal-Mason, the offender was initially committed to receive treatment, then later sentenced to incarceration for a specific period of time. Thus, in that case, granting credit for time served would achieve its goal. The defendant only served, and was coercively denied a liberty interest, for the period of time the court, through its deliberative sentencing process, determined to be appropriate ....
However, ... [t]he juvenile justice system is designed to rehabilitate the offender. See C.C., 841 So.2d at 658. Rehabilitation can be analogized to treatment. Since the juvenile justice system is designed to rehabilitate offenders, a juvenile’s disposition is for treatment, not punishment. That treatment or rehabilitative effort may take longer in some situations than in others. The time required depends on how well the juvenile responds. Accordingly, the rationale for awarding credit for time served is not applicable in the juvenile context.

Id. at 891-92.

J.I.S. disputes the First District’s determination that rehabilitation is the sole or primary goal of the juvenile justice system generally or a high-risk commitment specifically. He asserts that revisions to the juvenile delinquency laws and the transfer of the statutes from chapter 39 to chapter 985, Florida Statutes, refocused the purposes of the juvenile justice system from rehabilitation to punishment and protection of society. He claims that credit for time served is congruous with these goals.

In fact, punishment has been one of the stated goals of the juvenile delinquency system since 1994. See ch. 94-209, § 9 at 1231, Laws of Fla. The statement of purposes in chapter 985 currently provides:

(1) The purposes of this chapter are:
(c) To ensure the protection of society, by providing for a comprehensive standardized assessment of the child’s needs so that the most appropriate control, discipline, punishment, and treatment can be administered consistent with the seriousness of the act committed, the community’s long-term need for public safety, the prior record of the child, and the specific rehabilitation needs of the child, while also providing whenever possible restitution to the victim of the offense.

§ 985.01(l)(c), Fla. Stat. (2005). The statutory definition of high-risk residential commitment, to which J.I.S. was committed, emphasizes the safety of both the public and the juvenile offender:

High-risk residential. — Programs or program models at this commitment level are residential and do not allow youth to have access to the community except that, temporary release providing community access for up to 72 continuous hours may be approved by a court for a youth who has made successful progress in his or her program in order for the youth to attend a family emergency or, during the final 60 days of his or her placement, to visit his or her home, enroll in school or a vocational program, complete a job interview, or participate in a community service project. High-risk residential facilities are hardware-secure with perimeter fencing and locking doors. Facilities shall provide 24r-hour awake supervision, custody, care, and treatment of residents. Youth assessed and classified for this level of placement require close supervision in a structured residential setting. Placement in programs at this level is prompted by a concern for public safety that outweighs placement in programs at lower commitment levels. The staff at a facility at this commitment level may seclude a child who is a physical threat to himself or herself or others. Mechanical restraint may also be used when necessary. The facility may provide for single cell occupancy.

§ 985.03(46)(d), Fla. Stat. (2005).

Residential commitments serve protective purposes in two ways. First, residential commitments provide DJJ the opportunity to rehabilitate juvenile offenders so they are not dangerous to themselves or others. Second, residential commitments separate offenders from society during the process of rehabilitation. An indefinite commitment serves both purposes. However, mandatory application of credit for time served in secure detention against the maximum potential commitment could result in the release of offenders while they are still dangerous to themselves or others and before they are rehabilitated. Consequently, mandatory credit on indeterminate commitments is counterproductive to the goals of rehabilitation and protection of society set out by the Legislature in chapter 985.

The ceiling on juvenile residential commitments corresponding to the punishment authorized for the same offense in section 775.082, Florida Statutes, can also preempt rehabilitation and the protection of society. As shown by the commitments in C.C., J.B., D.T., and L.K, on most misdemeanor commitments (and conceivably some for third-degree felonies by particularly young offenders), section 985.231(l)(d) requires a juvenile offender’s release from commitment before the jurisdictional age limits are triggered. Juvenile offenders committed for first-degree misdemeanors must be released from their commitments after no more than a year regardless of whether they are rehabilitated or still present a threat to society or themselves. Therefore, as in the criminal justice system, this determinate commitment ceiling ensures proportionality in punishment and fair notice of consequences, rather than protection of society or rehabilitation. Cf. Ellis v. State, 762 So.2d 912, 912 (Fla.2000) (“[A]s to notice, publication in the Laws of Florida or the Florida Statutes gives all citizens constructive notice of the consequences of their actions.”) (quoting State v. Beasley, 580 So.2d 139, 142 (Fla.1991)). By further limiting the amount of time served to the authorized punishment, whether in secure detention or residential commitment, credit for time served in secure detention is fully consistent with these goals.

Accordingly, we conclude, as did the Fourth District in J.W., C.C., J.B., D.T., and L.K., that in the case of a determinate commitment, that is, for a crime on which the maximum punishment will necessarily conclude before DJJ loses authority over the offender, the trial court must grant credit for time served in secure detention against the residential commitment. However, as noted by the Fourth District in C.C. and the First District in this case, where the commitment is indeterminate and will necessarily extend up to DJJ’s age-based jurisdictional limits, such credit need not be granted. To the extent that the Second District suggested in E.R. that credit is necessitated even in the latter circumstance, it was incorrect.

SPECIFICATION OF PREDISPOSITION TIME SERVED IN SECURE DETENTION

We next address the question of whether trial courts should specify the amount of predisposition time served in commitment orders. This determination is separate from whether credit for time served in secure detention must be awarded. The current form disposition order in Florida Rule of Juvenile Procedure 8.947 includes a line on which to specify the amount of credit for time served in incarceration or secure detention. However, the juvenile rules are otherwise silent on predisposition credit and notation of time served.

It may be beneficial on several levels for the trial court to specify the amount of time served in secure detention prior to residential commitment, even on an indeterminate commitment on which there is no right to credit for the time served. As Judge Benton noted in his opinion concurring in the judgment below, even where the original commitment is for a felony, the adjudication of delinquency could be reduced to a misdemeanor, making precommitment credit relevant to the maximum commitment authorized for the offense. See J.I.S., 902 So.2d at 892-93 (Benton, J., concurring in the judgment). Further, because the information may assist DJJ in structuring a commitment or postrelease program or in determining when the offender has completed a program, “[mjaking such a finding would prove useful in some cases and should not prove anti-therapeutic in any. See In re Gault, 387 U.S. 1, 26, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967) (noting ‘suggestion] that the appearance as well as the actuality of fairness, impartiality and orderliness ... may be a more impressive and more therapeutic attitude so far as the juvenile is concerned’).” Id. .(second and third alterations in original).

The trial court acknowledged the potential benefits of a time-served notation in ruling on J.I.S.’s motion to correct disposition error:

The Defendant here will remain committed until the completion of the course of rehabilitation, and there is no reasonable way to receive credit against this term of commitment for time served in secure detention, unless the officials at the level eight facility should determine in his case that this time was in fact valuable in his rehabilitation. It would seem appropriate only to suggest to the level eight facility that they might consider this. To that extent this Motion is granted, and the level eight facility is ordered to give whatever credit they believe the child is entitled to for his time in secure detention if it helped him complete his level eight program.

However, the trial court in this case did not use the form commitment order in rule 8.947, instead adjudicating J.I.S. delinquent and imposing a high-risk commitment in a “Sentencing Order and Judgment” that did not specify precommitment time served in secure detention.

To address the uncertainty reflected in the trial court’s order as to whether predisposition time served in secure detention should be specified, we refer the matter to the Juvenile Procedure Rules Committee to determine whether we should adopt a rule requiring the notation on all residential commitment orders. In the interim, trial courts certainly may specify time served in secure detention in juvenile delinquency commitment orders on indeterminate commitments, and under our holding today must grant credit for the time served when imposing determinate commitments.

CONCLUSION

In this case, the First District held that “juveniles whose dispositions are to indeterminate commitment programs are not entitled to credit for time served in secure detention.” J.I.S., 902 So.2d at 892. For the reasons set out in this opinion, we agree, and accordingly approve the First District’s decision. We also approve the Fourth District decisions requiring pre-commitment credit against determinate (i.e., misdemeanor) commitments in C.C., J.B., and L.K., on which the First District certified conflict, and the decisions in J.W. and D.T., which were not discussed below. However, we disapprove the Second District’s decision in E.R. because in requiring credit for time served in secure detention “against the period of commitment which shall terminate at [the juvenile’s] nineteenth birthday, or as otherwise provided by law,” 584 So.2d at 158, the court did not distinguish determinate from indeterminate commitments.

It is so ordered.

WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur!

      . Section 985.215(5)(c), Florida Statutes (2005), provides that a child may not be held in detention for more that twenty-one days unless an adjudicatory hearing has been commenced. Section 985.215(5)(d) prohibits detention for more than fifteen days following entry of an order of adjudication. Both provisions are subject to an exception set out in subsection (5)(g) of section 985.215, which authorizes nine-day continuances of adjudicatory hearings on charges including "a felony of the second degree involving violence against any individual.” The record does not explain the reasons for the continuances in this case.

      . Legislation enacted in 1994 increased the maximum duration of a juvenile delinquency commitment from the offender's nineteenth birthday to his or her twenty-first birthday. See ch. 94-209, § 43, at 1294, Laws of Fla. The age terminus for an indeterminate commitment remains twenty-one under chapter 985. See § 985.23l(l)(d).

      . 3. Because L.K., J.B., and C.C., concerned misdemeanor-level commitments, the decisions requiring precommitment credit in those cases are not truly in conflict with the First District's holding in this case that credit is not required on a felony-level commitment.

      . In speaking of "indeterminate commitment programs,” the First District was referring to commitments for crimes on which the maximum authorized adult punishment would not require termination of the commitment before the child reaches the age when DJJ loses authority.

      . It is J.I.S.'s stay in secure detention for more than three months, rather than notation of that fact on a disposition order, that is inconsistent with the juvenile justice system's focus on rehabilitation. As recognized in E.R., secure detention closely resembles county jail. 584 So.2d at 159. Secure detention exists solely to maintain "temporary custody of the child while the child is under the physical restriction of a detention center or facility pending adjudication, disposition, or placement.” § 985.03(19)(a), Fla. Stat. (2005). In contrast, juvenile residential facilities "range from wilderness and marine camps to halfway houses, boot camps, youth development centers, sex-offender programs and maximum-security correctional facilities” in which DJJ provides mental health, substance abuse and sex offender treatment to juvenile offenders who need those services. Florida Department of Juvenile Justice, Juvenile Justice Residential Services, http://www. djj.state.fl.us/Residential/index.html (last visited May 5, 2006). Expeditiously moving offenders out of the juvenile equivalent of county jail, see E.R., 584 So.2d at 158, and into commitment programs is consistent with the rehabilitative goals of the juvenile justice system. The sooner an offender leaves secure detention and reaches his or her commitment program, the sooner he or she can benefit from the treatment services and, in the case of determinate commitments, the more time will be available to rehabilitate the juvenile offender before release. We encourage an in-depth review by all branches of government into whether juveniles are routinely spending lengthy periods of time in secure detention and, if so, the reasons therefor and the possible remedies.


source: Caselaw Access Project

author: WELLS, J. PARIENTE, C.J.,

license: Public Domain

text:
    SAIA MOTOR FREIGHT LINE, INC., etc., et al., Petitioners, v. Leslie REID, et al., Respondents.
    No. SC04-2443.
    Supreme Court of Florida.
    May 11, 2006.
    Hinda Klein of Conroy, Simberg, Canon, Krevans and Abel, P.A., Hollywood, FL, for Petitioner.
    Barbara A. Silverman and Ervin A. Gonzalez of Colson, Hicks and Eidson, Coral Gables, FL, for Respondent.
   WELLS, J.

We have for review the decision in Saia Motor Freight Line, Inc. v. Reid, 888 So.2d 102 (Fla. 3d DCA 2004). In this case, the Third District held that “the trial court may award costs pursuant to a final judgment’s reservation of jurisdiction despite a party’s failure to comply with the 30-day time period set forth in Florida Rule of Civil Procedure 1.525.” Id. at 104. The Third District agreed with the Fourth District Court of Appeal’s decision in Fisher v. John Carter & Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004). The Third District certified conflict with the Second District Court of Appeal’s decision in Gulf Landings Ass’n, Inc. v. Hershberger, 845 So.2d 344 (Fla. 2d DCA 2003), and the Fifth District Court of Appeal’s decision in Wentworth v. Johnson, 845 So.2d 296 (Fla. 5th DCA 2003). The Third District’s decision is also in conflict with the decision of the First District Court of Appeal in State Department of Transportation v. Southtrust Bank, 886 So.2d 393 (Fla. 1st DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

FACTS AND PROCEDURAL HISTORY

This case arises out of a request for attorney fees and costs in a wrongful death action. Respondents Leslie Reid and Kei-chan Lewis filed a wrongful death action as personal representatives of the estate of Joan Bryan against petitioner Saia Motor Freight Line, Inc. See Saia, 888 So.2d at 102. The trial court entered a first amended final judgment on January 2, 2003, in the amount of $1,805,000 in favor of respondents and “reserve[d] jurisdiction to award the Plaintiff costs and to consider Plaintiffs claim for attorneys’ fees upon a determination of entitlement thereto.” Reid v. Saia Motor Freight Line, Inc., No. 01-28040 CA 06 at 1-2 (Fla. 11th Cir. Ct. order filed Jan. 3, 2003).

On March 17, 2003, more than thirty days after entry of the judgment, respondents filed a verified motion to tax costs. The trial court awarded respondents attorney fees in the amount of $68,567.14 and costs in the amount of $66,429.79. Saia appealed the award of attorney fees and costs; however, only the award of costs is at issue in this case because the award of attorney fees was reversed by the Third District.

ANALYSIS

The certified conflict issue involves the interpretation of the Court’s rules and is a question of law subject to de novo review. See Smith v. Smith, 902 So.2d 859, 861 (Fla. 1st DCA 2005) (“The standard of review regarding the trial court’s construction of the rules [of civil procedure] is de novo.”) It is well settled that the Florida Rules of Civil Procedure are construed in accordance with the principles of statutory construction. See generally Brown v. State, 715 So.2d 241, 243 (Fla.1998) (“Our courts have long recognized that the rules of construction applicable to statutes also apply to the construction of rules.”).

We resolve the conflict by approving the decisions of the Second District in Gulf Landings, the Fifth District in Wentworth, and the First District in Southtrust Bank. We quash the decision of the Third District in the present case and disapprove that of the Fourth District in Fisher in respect to the conflict issue. In resolving the conflict, we apply the plain language of Florida Rule of Civil Procedure 1.525.

The Civil Procedure Rules Committee of The Florida Bar recommended the adoption of rule 1.525 in 2000. We adopted that rule, effective January 1, 2001. Amendments to Fla. Rules of Civil Pro., 773 So.2d 1098 (Fla.2000). Rule 1.525 provides:

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

The Committee Note to the rule states: “2000 Adoption. This rule is intended to establish a time requirement to serve motions for costs and attorneys’ fees.” In adopting the proposed rule, we stated:

Rule 1.525 is adopted, establishing the time for serving motions for attorneys’ fees and costs. We add a court commentary clarifying that this rule only establishes time requirements for serving such motions, and in no way affects or overrules the pleading requirements outlined by this Court in Stockman v. Downs, 573 So.2d 835 (Fla.1991).

Amendments to Fla. Rules of Civil Pro., 773 So.2d at 1098-99.

In 1997, before the adoption of rule 1.525, we decided Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997). At the time that we decided Gulliver Academy, the Florida Rules of Civil Procedure did not have a rule setting time requirements within which motions for costs and attorney fees were required to be served. In Gulliver Academy, we held that a reservation of jurisdiction in a final judgment allowed the trial court to consider further proceedings on the issue of attorney fees even though a motion for fees was filed more than thirty days after the entry of the judgment. We further held that the reservation of jurisdiction in the final judgment was an enlargement of time pursuant to Florida Rule of Civil Procedure 1.090(b).

The Third District in the present case and the Fourth District in Fisher relied on Gulliver Academy in deciding that when the final judgment contained a reservation of jurisdiction, the time requirement of rule 1.525 did not apply. Fisher, 864 So.2d at 496. We do not agree.

When we adopted rule 1.525, effective January 1, 2001, we established a bright-line time requirement for motions for costs and attorney fees which the Rules of Civil Procedure had not previously contained. Judge Altenbernd correctly made this point stating, in Diaz v. Bowen, 832 So.2d 200, 201 (Fla. 2d DCA 2002), that “[r]ule 1.525 was created to establish a bright-line rule to resolve the uncertainty surrounding the timing of these posttrial motions,” and in Gulf Landings, 845 So.2d at 346, “It is no longer enough for parties to plead a basis for fees in their pretrial pleadings.” We agree. Rule 1.525 provided the time requirement which the rules did not have at the time Gulliver Academy was decided, and the rule applies to all cases pending on or filed after January 1, 2001.

CONCLUSION

We therefore quash the Third District’s decision in this case and remand for further proceedings in accord with this decision.

It is so ordered.

QUINCE, CANTERO, and BELL, JJ., concur.

PARIENTE, C.J., dissents with an opinion, in which ANSTEAD and LEWIS, JJ., concur.

PARIENTE, C.J.,

dissenting.

I respectfully dissent. By holding that a reservation of jurisdiction in a judgment to consider attorneys’ fees and costs is not the procedural equivalent of an order extending the time to file a motion for attorneys’ fees and costs pursuant to Florida Rule of Civil Procedure 1.090(b), the majority has reached a conclusion contrary to Gulliver Academy, Inc. v. Bodek, 694 So.2d 675 (Fla.1997).

In Gulliver Academy, we held that “a reservation of jurisdiction in a final judgment is procedurally an enlargement of time under rule 1.090(b),” and observed that “[a]ny other interpretation would make the trial court’s reservation in the final judgment not only a nullity but a procedural trap.” Id. at 677. The majority’s holding in this case has the effect of transforming a reservation of jurisdiction into the “nullity” and “procedural trap” we condemned in Gulliver Academy. Id. And to what end? In this case, neither party was surprised and neither party was prejudiced by the filing of the motion for attorneys’ fees and costs beyond the time period set forth in Florida Rule of Civil Procedure 1.525. If the majority concludes that it is best to recede from the reasoning of Gulliver Academy and strictly interpret the civil rules in all circumstances, this interpretation should be applied prospectively to ensure that all litigants are put on notice. We have on occasion determined that our interpretation of the rules of procedure applicable to the appeal of a civil action filed in this state should be applied prospectively. See Employers’ Fire Ins. Co. v. Continental Ins. Co., 326 So.2d 177, 181 & n. 10 (Fla.1976) (“[T]he time for taking an appeal should be governed by the rendition of a formal document of judgment by the trial judge, pursuant to Fla.App. Rule 1.3, rather than by the signed entry in a minute book,” but the “application of this decision with respect to the time for taking appeals shall be prospective only, and it shall not affect appeals pending on the date this decision becomes final.”); see also Boyett v. State, 688 So.2d 308, 310 (Fla.1996) (“Unless we explicitly state otherwise, a rule of law which is to be given prospective application does not apply to those cases which have been tried before the rule is announced;” therefore, it was error in Coney v. State, 653 So.2d 1009 (Fla.1995), for the Court to apply the definition of “presence” articulated therein to the facts of that case); Coney, 653 So.2d at 1013 (clarifying that “presence” as used in Florida Rule of Criminal Procedure 3.180 means that a defendant has a right under rule 3.180 to be physically present at the immediate site where juror challenges are exercised, but stating that “our ruling today clarifying this issue is prospective only”).

It is not surprising that both the Third District in this case and the Fourth District in Fisher v. John Carter & Associates, Inc., 864 So.2d 493 (Fla. 4th DCA 2004), believed that the reasoning of Gulliver Academy applied in determining the timeliness of a motion filed pursuant to rule i.525. In Gulliver Academy, the Court addressed the procedural effect of a trial court’s reservation of jurisdiction to consider attorneys’ fees and costs in the context of a motion filed under the offer of judgment statutes, which provide that a motion for attorneys’ fees and costs must be filed within thirty days of entry of judgment. See 694 So.2d at 677-78. The precise issue was whether a reservation of jurisdiction in a judgment to consider attorneys’ fees and costs was an enlargement of time under rule 1.090(b), which delineates the procedure for enlarging prescribed time periods. As stated above, we held in Gulliver Academy that “a reservation of jurisdiction in a final judgment is procedurally an enlargement of time under rule 1.090(b),” which may allow a party to file a motion for attorneys’ fees and costs beyond the thirty-day time period prescribed in the offer of judgment statutes. See id. at 677. More significantly, we observed that any other interpretation would render the trial court’s reservation of jurisdiction in the final judgment meaningless. See id.

It is true that at the time of Gulliver Academy, rule 1.525 had not been adopted. But the Court in Gulliver Academy did not end its analysis with the interpretation of the offer of judgment statutes. The Court elaborated by discussing Florida Rule of Civil Procedure 1.442(g), which had been recently adopted to impose a specific thirty-day time limit on motions for attorneys’ fees and costs filed pursuant to the offer of judgment statutes. See id. In no uncertain terms, we determined that in the context of rule 1.442(g), a trial court’s reservation of jurisdiction to consider attorneys’ fees and costs constitutes an enlargement of time under rule 1.090(b). See Gulliver Academy, 694 So.2d at 677. We reasoned that the trial court should have discretion to extend the time for filing a rule 1.442(g) motion by reserving jurisdiction in the judgment because “[ijssues related to the setting of fees under [the offer of judgment statutes] are not fully adjudicated until the disposal of posttrial motions.” Id. at 678. However, we also concluded that absent a reservation of jurisdiction, a motion seeking attorneys’ fees and costs must be filed within thirty days as provided in rule 1.442(g) or the entitlement to fees and costs is waived, unless there is a basis for relief under rule 1.090(b)(2). See id.

Both the version of rule 1.442(g) construed in Gulliver Academy and rule 1.525 contain mandatory language requiring that a motion for attorneys’ fees and costs be filed within thirty days of entry of judgment. Yet, the majority eschews the effect given to the reservation of jurisdiction in Gulliver Academy. The majority does not even mention the Court’s conclusion in Gulliver Academy as it relates to rule 1.442(g). In fact, the reason we gave in Gulliver Academy for treating a reservation of jurisdiction in a final judgment as the equivalent of an order extending the time to file a motion for attorneys’ fees is equally applicable in this case.

After judgment has been entered in a case, parties often file posttrial motions. As we recognized in Gulliver Academy, issues relating to the setting of attorneys’ fees and costs may not be adjudicated fully until the disposition of posttrial motions. See 694 So.2d at 678. Judicial efficiency and economy is furthered by allowing the trial court “discretion to extend the time for filing the motions by reserving jurisdiction in the final judgment.” Id. Moreover, a reservation of jurisdiction to consider attorneys’ fees and costs allows the trial court to conduct further proceedings on this issue.

Although the Court today states that the use of mandatory language in rule 1.525 overrules or limits our decision in Gulliver Academy, the Court’s commentary to rule 1.525 does not refer to the rule’s effect on the continuing validity of Gulliver Academy. If we intended to overrule or limit Gulliver Academy by adopting rule 1.525, we should have said so directly. As explained in Puryear v. State, 810 So.2d 901, 905 (Fla.2002), “this Court does not intentionally overrule itself sub silentio.” Thus, G'ulliver Academy should remain good law as to the effect of reservations of jurisdiction to consider attorneys’ fees or costs. At the very least, litigants were justified in relying on our decision.

I do not quarrel with the purpose of adopting rule 1.525: to remove the uncertainty created by the “reasonable time” standard, which was previously used to determine the timeliness of a motion seeking attorneys’ fees and costs; to put parties on notice; and to prescribe a time certain for filing motions for attorneys’ fees and costs. Yet, the fact is that the rule did create confusion as to the continuing effect of a reservation of jurisdiction as demonstrated by the various conflict cases.

In fact, in 2005, subsequent to the adoption of rule 1.525, the Court adopted Florida Family Law Rule of Procedure 12.525, which states that rule 1.525 does not apply in family law proceedings. See Amendments to the Fla. Family Law Rules of Procedure (Rule 12.525), 897 So.2d 467 (Fla.2005). Rule 12.525 was adopted at the request of the Family Law Rules Committee because the Committee stated that “rule 1.525 is ill-fitting to family law matters.” Id. at 467. The Court accepted the argument that “the application of rule 1.525 in family law cases could be creating confusion among the courts, and [that] there already is a well-established body of statutory and case law authority regarding the award of attorneys’ fees and costs in family law matters.” Id. at 468. The confusion cited in the opinion referred to the very conflict we resolve today; that is, whether a reservation of jurisdiction to assess attorneys’ fees and costs is equivalent to an extension of time.

While strict time limits in our procedural rules can serve an important purpose, even the majority acknowledges that if a motion to enlarge time had been filed and granted, the thirty-day time limit would have been extended. Entry of an order granting a motion to extend time, like a reservation of jurisdiction in a judgment, recognizes that often posttrial motions must be resolved before entitlement to fees and costs can be determined.

Based on the reasoning of Gulliver Academy, which remains good law, and the fact that a reservation of jurisdiction in a judgment affords notice to all parties involved in the litigation, I conclude that a reservation of jurisdiction in a judgment to consider attorneys’ fees and costs amounts procedurally to an enlargement of time under rule 1.090(b). For the future, parties will be on notice that motions must be filed within thirty days as provided in rule 1.525 unless a motion for extension of time is filed in accordance with the requirements of rule 1.090(b) and granted by the court. But for today, litigants who relied on Gulliver Academy will have found themselves the victims of the very trap the Court sought to avoid in that case.

ANSTEAD and LEWIS, JJ., concur.

      . The trial court originally entered a final judgment on November 15, 2002, but subsequently vacated this order on November 26, 2002, and substituted an amended final judgment. See Reid v. Saia Motor Freight Line, Inc., No. 01-28040 CA 06 at 3 (Fla. 11th Cir. Ct. order filed Nov. 26, 2002). Pursuant to an agreement between the parties, the trial court then vacated the amended final judgment on January 2, 2003, and entered a first amended final judgment. A reservation of jurisdiction to consider attorney fees and costs was included in each of the final judgments.

      . The Third District determined that the offer of settlement was invalid because it was not submitted jointly by the co-personal representatives.

      . Following the adoption of rule 1.525, the time requirements could be enlarged in accord with Florida Rule of Civil Procedure 1.090, as explained in Southtrust Bank.

      . In this case, the plaintiffs had previously filed a timely motion seeking attorneys' fees based on the offer of settlement statute and Florida Rule of Civil Procedure 1.442 on December 16, 2002, after the amended final judgment was entered on November 26, 2002. On February 10, 2003, the plaintiffs filed an amended motion for attorneys' fees after the first amended final judgment was entered on January 2, 2003. Both of these motions had also requested costs as part of the request for attorneys' fees. On March 17, 2003, the plaintiffs filed a verified motion to tax costs based on their prevailing party status. It appears that the plaintiffs diligently pursued the motion for attorneys' fees and costs but apparently relied on the reservation of jurisdiction in the final judgment as extending the time for filing a motion under rule 1.525.

      . Rule 1.442(g) was adopted in 1996. See In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 107 (Fla.1996). At that time, the rule provided:
      Sanctions. Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal's recipient to accept a proposal, shall do so by service of an appropriate motion within 30 days after the entry of judgment in a nonjury action, the return of the verdict in a jury action, or the entry of a voluntary or involuntary dismissal.

      . Subsequent to the adoption of rule 1.525 in 2000, rule 1.442(g) was amended to conform it to rule 1.525. Thus, rule 1.442(g) now provides:
      Any party seeking sanctions pursuant to applicable Florida law, based on the failure of the proposal's recipient to accept a proposal, shall do so by serving a motion in accordance with rule 1.525.


author: BELL, J.

text:
    FLORIDA DEPARTMENT OF REVENUE, et al., Petitioners, v. James (Willie) CUMMINGS, et al., Respondents.
    No. SC04-1045.
    Supreme Court of Florida.
    May 11, 2006.

      Charles J. Crist, Jr., Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, FL, for Petitioner.
    Louis K. Rosenbloum, P.A., Pensacola, FL, for Respondent.
   BELL, J.

We have for review Department of Revenue ex rel. Preston v. Cummings, 871 So.2d 1055 (Fla. 2d DCA 2004), which expressly and directly conflicts with State Department of Revenue ex rel. Baggs v. Pate, 824 So.2d 1038 (Fla. 1st DCA 2002). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. The issue before us is whether a legal father (i.e., a man married to the child’s mother at the time of birth) is an indispensable party in a paternity action brought by the State of Florida Department of Revenue under chapter 409, Florida Statutes (2000), to establish that a man other than the legal father is the child’s biological father and, as such, is obligated to provide child support. In Cummings, the Second District held that the legal father is an indispensable party to such actions unless the pleading conclusively establishes that the legal father’s rights to the child have been divested by some earlier judgment. See 871 So.2d at 1061-62. For the reasons explained below, we agree with the Second District.

I. Facts

This case arose from six consolidated actions to determine paternity and establish child support. In each case, the State of Florida Department of Revenue (“Department”) filed a standardized complaint entitled “Complaint to Establish Paternity, Child Support and Other Relief Without Affecting Legal Rights of Husband of Mother at Time of Birth.” Each complaint was filed on behalf of a mother against the man she alleged to be her child(ren)’s biological father (i.e., the “putative father”). Although the complaints acknowledge that the mother was married to a man other than the putative father at the time the child was born, only the putative father is named as a respondent. The body of the complaint states that “this is an action to establish paternity, child support, and other relief for minor child(ren).” Among its prayers for relief, the Department requests a court order “Determin[ing] the Respondent/ Biological Father to be the father of the child(ren) who owes a duty of support” and requiring him to pay child support and health care expenses.

The Department served this standardized complaint on each putative father and attempted to provide a Notice of Action to each legal father. The Notice of Action stated:

YOU ARE HEREBY NOTIFIED that the above-styled action has been filed to determine the paternity of the child(ren) born on the dates indicated in the Complaint to determine paternity and Exhibits attached thereto, a copy of which is attached hereto. In filing this action, Petitioners seek to have the named Respondent ordered to pay child support for the child(ren) who are the subject of this action. YOU ARE NOT THE NAMED RESPONDENT. If you were legally married to the mother named in the Complaint at the time the child(ren) was either conceived or born, you may have legal rights or responsibilities you wish to assert.
Although in filing this action, the Petitioners do not seek to affect any rights you may possess, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR OWN CHOOSING WITH REGARD TO YOUR RIGHTS AND POTENTIAL RESPONSIBILITIES. Your failure to file a pleading and/or attend a hearing in this cause will be interpreted as you having no objection to the Respondent being adjudicated to be the biological father of the named child(ren).

The Department mailed this notice to each of the six legal fathers at his last known address. In addition, it attempted to personally serve this notice on five of the legal fathers and to constructively serve the remaining legal father through publication in the Tampa Bay Review. Ultimately, these attempts at service failed, and none of the legal fathers appeared at any of the proceedings.

The Circuit Court in Pinellas County dismissed all six complaints for failure to name the legal father as an indispensable party. On appeal, the Second District affirmed. Cummings, 871 So.2d at 1056. It first determined that the complaints “do not establish a legal basis for .. .ignoring] the presumption of each child’s legitimacy by pursuing support from a putative biological father without joining the legal father”; and second, that “it appears likely” that these proceedings should have been initiated against the legal fathers instead of the putative fathers. Id. at 1056-57. The Second District also recognized that while the law allows a legal father to “disavow his parental rights and responsibilities in favor of the biological father,” it also allows him to assert them and to “fulfill the rights and responsibilities of parenthood.” Id. at 1061. Finally, the court noted that it is impossible to know if the legal father will choose to assert these rights if he is not named as a party. Id. Based on these findings, the Second District held that “a legal father ... is an indispensable party in any action to determine paternity and to place support obligations on another man unless the pleading conclusively establishes that the legal father’s rights to the child have been divested by some earlier judgment.” Id. at 1061-62.

The Second District acknowledged that its holding conflicted with Pate, 824 So.2d at 1039, in which the First District held that a legal father was not an indispensable party in a similar action. 824 So.2d at 1039. The First District based its holding on the fact that this Court did not expressly require legal fathers to be named as indispensable parties in Department of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993). In Pri vette, 617 So.2d at 307-08 & n. 4, this Court recognized that a legal father’s “unmistakable interest” in paternity actions to establish a putative father’s obligation to provide child support entitled him to notice of the action. The Court did not, however, address the procedures necessary to protect this interest, particularly when the legal father’s whereabouts are unknown. This is the issue we address today.

II. Analysis

Because this appeal arises from the trial court’s decision to dismiss a complaint based on a question of law, we review it de novo. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000).

As the Second District recognized, the presumption of legitimacy requires a holding that the legal father is an indispensable party in an action to determine paternity and to place support obligations on another man unless it is conclusively established that the legal father’s rights to the child have been divested by some earlier judgment. To explain this holding, we begin by defining the term “indispensable party.” We then explain why the presumption of legitimacy requires that a legal father be named an indispensable party in these actions. Finally, we conclude by recognizing that these types of cases have long presented Florida courts with significant dilemmas that will persist as long as the relevant statutory provisions remain unchanged.

A. Indispensable Party

An indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party’s interest or the interests of another party in the action. Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla.1984) (describing indispensable parties as ones so essential to a suit that no final decision can be rendered without their joinder); Bastida v. Batchelor, 418 So.2d 297, 299 (Fla. 3d DCA 1982) (“An indispensable party [is] one without whom the rights of others cannot be determined.”). As we stated in Oakland Properties Corp. v. Hogan, 96 Fla. 40, 117 So. 846, 848 (1928) (quoting Indian River Mfg. Co. v. Wooten, 48 Fla. 271, 37 So. 731, 731 (1904) (syllabus)):

The general rule in equity is that all persons materially interested, either legally or beneficially, in the subject-matter of the suit, must be made parties either as complainants or defendants, so that a complete decree may be binding upon all parties.

The Fourth District elaborated on this rule in Phillips v. Choate, 456 So.2d 556, 557 (Fla. 4th DCA 1984) (quoting Shields v. Barrow, 58 U.S. (17 How.) 130, 139, 15 L.Ed. 158 (1855)), where it defined an indispensable party as one whose interest in the controversy is of “such a nature that a final decree cannot be made without either affecting that interest, or leaving the controversy in such a condition that its final termination may be wholly inconsistent with equity and good conscience.”

In light of this definition, we must next determine if the presumption of legitimacy that arises whenever a child is born during marriage endows legal fathers with such a material interest in these paternity actions that a final decree cannot be rendered without their joinder. We find that it does.

B. The Presumption of Legitimacy

A child born during marriage is presumed to be the child of both the husband and wife. This presumption of legitimacy is “one of the strongest rebuttable presumptions known to law.” Cummings, 871 So.2d at 1059 (quoting G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999)). As stated earlier, in Privette we recognized that this presumption grants legal fathers an “unmistakable interest” in paternity actions brought by the Department. 617 So.2d at 307. This recognition was grounded in a significant line of caselaw. The presumption of legitimacy protects a legal father’s parental rights when another party brings an action to assume those rights. G.F.C. v. S.G., 686 So.2d 1382, 1385 (Fla. 5th DCA 1997) (finding that because the presumption of legitimacy established the legal father’s paternity “by law,” a putative father could not bring a paternity action under chapter 742, Florida Statutes (1995)); G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999) (recognizing that the legal father would have had a right to contest an adoption proceeding if he had acted on this right in a timely fashion). The presumption of legitimacy may even prevent the child’s mother from contesting the legal father’s parental rights. Hess v. Hess, 466 So.2d 1179, 1179-80 (Fla. 3d DCA 1985) (preventing a mother from challenging visitation rights granted to a legal father in a separation agreement by claiming the legal father is not the biological father of the child). Moreover, once a legal father challenges a paternity action by raising the presumption of legitimacy, he is es-topped from later denying paternity and freeing himself from a duty of support. S.B. v. D.H., 736 So.2d 766, 767 (Fla. 2d DCA 1999). In light of this caselaw, we must agree with the Second District that these paternity actions “certainly” impact the legal father’s ability to assert his right to a host of interests that lie at the heart of the parent-child relationship. Cummings, 871 So.2d at 1060 (recognizing that the paternity action will “certainly” affect the legal father’s rights to the “care, custody and control of the child”).

We also agree with the Second District that these proceedings carry significant legal and practical implications because they will likely cause the legal father’s name to be removed from the child’s birth certificate. See Cummings, 871 So.2d at 1060. At the time the child is born, the legal father’s name is listed as the child’s father on the birth certificate. § 382.013(2)(a), Fla. Stat. (2000) (“If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.”). The Department’s actions to determine paternity would change this without the legal father’s knowledge. At the time the Department filed its complaints, Florida law required a court order to remove the legal father’s name from a birth certificate; however, the relief requested in these actions would bring about this change. §§ 382.015(2), 382.016(5), Fla. Stat. (2000). Section 382.015 required the clerk of the court to forward a copy of a court order determining paternity to the Department, and the Department was required to amend the birth certificate in accordance with this order. § 382.015(2), Fla. Stat. (2000). It seems that unless the court order expressly prohibited the Department from removing the legal father’s name, his name would be removed without his knowledge.

This removal carries significant practical and legal implications Pragmatically, the father named in the birth certificate is generally considered the father of the minor child. Indeed, Florida courts have considered a birth certificate in determining whether a child is a “survivor” in a wrongful death action, whether a man is a “parent” under a kidnapping statute, and as “prima facie evidence” of parentage. See Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001) (finding that the illegitimate child of the deceased was not able to recover in a wrongful death action because the child’s birth certificate named the legal father); Muniz v. State, 764 So.2d 729, 730 (Fla. 2d DCA 2000) (holding that the kidnapping statute’s exemption for “parents” prevented the man named as father on the child’s birth certificate from being charged with the crime). In essence, a legal father’s material interests are necessarily impacted by these paternity actions as filed by the Department; therefore, he is an indispensable party. See Hinson v. Hinson, 356 So.2d 372, 374-75 (Fla. 4th DCA 1978) (finding a properly authenticated birth certificate is “prima facie evidence” that the deceased was the father of the child claiming the right to recover in a wrongful death action).

C. The Need for Legislative Consideration

We recognize that these types of cases have long presented Florida courts with significant dilemmas, and as legal scholars have noted, these dilemmas will persist as long as certain statutory provisions remain unchanged. The service of process statute does not permit constructive service of process in paternity cases, and there is no express provision within chapter 409 to authorize constructive service or to ensure that a legal father’s interests are appropriately protected. See § 409.257, Fla. Stat. (2000) (requiring personal service); see also § 49.011, Fla. Stat. (2000) (listing the actions and proceedings in which service of process by publication may be made — a list that does not include paternity actions); see also T.J.K v. N.B., 237 So.2d 592, 595 (Fla. 4th DCA 1970) (holding that constructive service of process is not permitted by statute). Whether the statutes should be modified to address this dilemma is a policy decision for the Legislature to decide.

III. Conclusion

For the reasons stated above, we approve the Second District’s holding in Cummings, 871 So.2d 1055, and disapprove Pate, 824 So.2d 1038, to the extent it is inconsistent with this opinion. We hold that a legal father is an indispensable party in an action to determine paternity and to place support obligations on another man unless it is conclusively established that the legal father’s rights to the child have been divested by some earlier judgment.

It is so ordered.

WELLS, ANSTEAD, LEWIS, QUINCE, and CANTERO, JJ., concur.

PARIENTE, C.J., concurs in result only.

      . We recognize that chapter 409 has been amended since the Department filed these actions. However, we do not address the amendments in the opinion.

      . For a more extensive description of the factual background surrounding this case, see the opinion below. Cummings, 871 So.2d at 1056-58.

      . As stated earlier, we recognize that chapter 409 has been amended since the Department filed the complaints in the circuit court. Effective January 1, 2006, the Legislature amended chapter 409 to permit tire Department to initiate an administrative proceeding to determine paternity and an obligation to provide support in actions like these. § 409.256, Fla. Stat. (2005). The Legislature also amended section 382.013 to require the name of the father and the surname of the child be changed automatically pursuant to this proceeding. § 382.013(2)(e), Fla. Stat. (2005). This opinion does not address these amendments.

      . For an excellent discussion of the presumption of legitimacy and the dilemmas courts confront when faced with children born during marriage but fathered by someone other than the mother’s husband, see Chris W. Al-ternbernd, Quasi-Marital Children: The Common Law’s Failure in Privette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219 (1999).


author: PER CURIAM.

text:
    Donna REUTER, etc., Petitioner, v. McKENZIE CHECK ADVANCE OF FLORIDA, LLC, etc., et al., Respondents.
    No. SC02-2192.
    Supreme Court of Florida.
    May 11, 2006.
    Christopher C. Casper of James, Hoyer, Newcomer and Smiljanich, P.A., Tampa, FL, and E. Clayton Yates of Yates and Mancini, LLC, Fort Pierce, FL, for Petitioner.
    Virginia B. Townes of Akerman, Senter-fitt and Eidson, Orlando, FL, for Respondent.
   PER CURIAM.

We have for review Reuter v. McKenzie Check Advance of Florida, LLC, 825 So.2d 1070 (Fla. 4th DCA 2002), which cited to a case that was pending review in this Court (Buckeye Check Cashing, Inc. v. Cardegna, 824 So.2d 228 (Fla. 4th DCA 2002), revieio granted, 844 So.2d 645 (Fla.2003)). We have jurisdiction. See art. V, § (3)(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981). Since the petition for review was filed in this case, both this Court and the United States Supreme Court have reviewed and ruled on the issue raised in the Cardegna case. See Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla.2005), rev’d, — U.S. -, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).

Because the decision of the Fourth District in Reuter is in accord with the controlling United States Supreme Court decision in Cardegna, we decline to accept jurisdiction in this case.

It is so ordered.

WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

PARIENTE, C.J., did not participate.


text:
    John A. CARDEGNA, et al., Petitioners, v. BUCKEYE CHECK CASHING, INC., etc., Respondent.
    No. SC02-2161.
    Supreme Court of Florida.
    May 11, 2006.
    E. Clayton Yates, Fort Pierce, FL, F. Paul Bland, Jr., Washington, D.C., Christopher C. Casper of James, Hoyer, Newcomer and Smiljanich, P.A., Tampa, FL, and Richard A. Fisher, Cleveland, TN, for Petitioner.
    John R. Hart of Carlton Fields, P.A., West Palm Beach, FL, Amy L. Brown, and James P Wehner of Squire, Sanders and Dempsey, LLP, Washington, DC, and Pierre H. Bergeron of Squire, Sanders and Dempsey, LLP, Cincinnati, OH, for Respondent.

      Deborah M. Zuckerman, AARP Foundation, Washington, D.C., and Lynn Drys-dale, Florida Legal Services, Inc., Jacksonville, FL, for amici curiae, AARP, Consumer Federation of America and National Consumer Law Center.
    Daniel S. Pearson, Lenore C. Smith, and Scott B. Newman of Holland and Knight, LLP, Miami, FL, for amicus curiae, The Check Cashing Store, Inc.
   OPINION ON REMAND

PER CURIAM.

This Court has previously quashed the decision of the Fourth District Court of Appeal in Buckeye Check Cashing, Inc. v. Cardegna, 824 So.2d 228 (Fla. 4th DCA 2002). See Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla.2005). Because our decision has now been reversed by the United States Supreme Court, we withdraw our prior opinion and now approve the decision of the Fourth District. See Buckeye Check Cashing, Inc. v. Cardegna, —— U.S. -, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006).

In the Fourth District’s decision in Car-degna, the court held that a borrower’s claim that a contract was void ab initio under Florida law and public policy must be resolved by arbitration where there was no separate claim that the arbitration provision in the contract itself was unenforceable. This Court quashed and held that the dispute as to the validity of the contract must first be resolved in court before the arbitration provision could be enforced. In turn, the United States Supreme Court has reversed this Court’s decision, and, in effect approved the holding of the Fourth District.

Accordingly, consistent with and pursuant to the United States Supreme Court’s decision, we withdraw our previous opinion and now approve the decision of the Fourth District and disapprove of the conflicting opinion of the Fifth District in Fastfunding the Company, Inc. v. Betts, 758 So.2d 1143 (Fla. 5th DCA 2000). We remand this cause to the Fourth District for further proceedings consistent herewith.

It is so ordered.

WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ„ concur. PARIENTE, C.J., recused.


author: PARIENTE, C.J., QUINCE, J.,

text:
    T.D., et al., Petitioner(s) v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, et al., Respondent(s).
    No. SC06-740.
    Supreme Court of Florida.
    May 11, 2006.
    Rehearing Denied May 24, 2006.
   The Petitioners have filed a petition for a writ of prohibition, which has been treated as a petition for a writ of mandamus. See Frankel v. Spainhour, 159 Fla. 416, 31 So.2d 535, 540 (1947) (stating that mandamus is available to compel vacation of an order entered without jurisdiction); State v. Wright, 107 Fla. 178, 145 So. 598, 601 (1932) (same). The petition is hereby denied. The order of the Fifth District Court of Appeal, dated March 27, 2006, granting the petition for a writ of prohibition filed by Respondents, I.B. and D.B., in that court clearly addressed only the issue of adoptive placement, and does not preclude the trial court from proceeding in accordance with chapters 39 and 63, Florida Statutes (2005).

Petitioners’ request for a writ of habeas corpus prohibiting an alleged unlawful confinement of the child, T.A.T., is hereby denied.

Respondents I.B. and D.B.’s motion to dismiss is hereby denied.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, CANTERO, and BELL, JJ., concur.

PARIENTE, C.J., concurs with an opinion.

QUINCE, J., dissents with an opinion.

PARIENTE, C.J.,

concurring.

I concur with the denial of the petition in this case. In response to Justice Quince’s dissent, our order specifically states that the trial court is not precluded from proceeding in accordance with chapters 39 and 63. Having reviewed the history of this case, I am very distressed with the amount of time this case was on appeal on two separate occasions. For the sake of this child, I hope that a final determination can be made expeditiously.

QUINCE, J.,

dissenting.

I respectfully dissent. I agree with the petitioners, the Department of Children and Families, and the guardian ad litem that the Fifth District Court of Appeal’s order dated March 27, 2006, did more than enforce its mandate. The order went beyond what was decided in the earlier proceeding. The March 27, 2006, order effectively precludes the trial court from conducting a hearing pursuant to chapters 39 and 63, Florida Statutes, and requires the trial court to hear the adoption petition of the foster parents only. Therefore, I dissent because the issues surrounding the final adoption hearing were not before the district court in the 2005 proceeding.


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES (NO. 2005-4).
    No. SC05-1621.
    Supreme Court of Florida.
    May 25, 2006.
    Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
    Honorable Carey Haughwout, Public Defender, Fifteenth Judicial Circuit, West Palm Beach, FL, and Paula S. Saunders, Co-Chair, Office of the Public Defender, and Michael Ufferman, P.A., Co-Chair, the Florida Association of Criminal Defense Lawyers (FACDL) Amicus Curiae Committee, Tallahassee, FL, Responding with comments.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (the Committee) petitions this Court to amend the Florida Standard Jury Instructions in Criminal Cases. We have jurisdiction. See art. V, § 2(a), Fla. Const.

On September 6, 2005, the Committee filed Supplemental Report No. 2005-4, proposing changes to Florida Standard Jury Instructions 3.6(f), “Justifiable Use of Deadly Force,” and 3.6(g), “Justifiable Use of Non-deadly Force.” The Committee had originally submitted proposals for changes to the instruction on the justifiable use of deadly force after publishing the proposed changes in The Florida Bar News on December 1, 2003. However, after those proposed changes were submitted to the Court, the 2005 Florida Legislature changed the law of self-defense in Florida by amending portions of chapter 776, Florida Statutes, and creating section 776.013, Florida Statutes (2005). See ch. 2005-27, Laws of Fla. Accordingly, the Court declined to adopt the Committee’s proposed amendments. See In re Standard Jury Instructions in Criminal Cases (No.2001-1), 911 So.2d 766 (Fla.2005). After submission, the proposed amendments before the Court were published for comment in The Florida Bar News. Two comments were received by the Court: one from the Florida Association of Criminal Defense Lawyers and one from the Florida Public Defender Association.

With regard to Standard Jury Instruction 3.6(f), “Justifiable Use of Deadly Force,” the Committee recommended the following changes: (1) substituting the words “deadly force” for “force likely to cause death or great bodily harm” in the various parts of the instruction; (2) adding an instruction defining “deadly force” as “force likely to cause death or great bodily harm”; (3) combining subparts 3 and 4 into a new subpart 3 in the portion of the instruction dealing with claims of self-defense predicated on section 782.02, Florida Statutes (2005); (4) expanding the explanation of when the first part of the “aggressor” exception should be given; (5) deleting those subparts of the instruction concerning the necessity to avoid the use of deadly force, the necessity to retreat, the defense of the home, and the defense of the home against a co-occupant; (6) adding new subparts concerning the lack of a duty to retreat and the presumption of fear when the defendant was in a dwelling, residence, occupied vehicle, or place where he had a right to be; (7) adding definitions of “dwelling,” “residence,” and “vehicle”; (8) amending the subpart addressing prior threats to make it mesh with the absence of a duty to retreat; (9) adding the current year of revision to the comment section; and (10) deleting the second sentence in the comment, which refers to the instruction for defense of the home against a co-occupant, which instruction was deleted.

With regard to Standard Jury Instruction 3.6(g), “Justifiable Use of Non-deadly Force,” the Committee recommended the following changes: (1) substituting the words “non-deadly force” for “force not likely to cause death or great bodily harm” in the various parts of the instruction; (2) adding an instruction defining “non-deadly force” as “force not likely to cause death or great bodily harm”; (3) substituting the words “another person” for “other person” in the “In Defense of Person” instruction; (4) adding the words “to be” to the instruction for “In Defense of Person”; (5) adding new subparts on the lack of duty to retreat when the defendant is in a dwelling, residence, vehicle, or place where he has a right to be; (6) adding definitions of the words “dwelling,” “residence,” and “vehicle”; and (7) adding the current year of revision to the comment.

Upon consideration of the Committee’s report and the comments filed, we hereby authorize the publication and use of the revised instructions without change from those recommended by the Committee and as set forth in the appendix attached to this opinion. In doing so, we express no opinion on the correctness of the instrue-tions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that the notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final. New language is indicated by underlining, and deletions are indicated by struck-through type.

It is so ordered.

PARIENTE, C.J., and WELLS, ANSTEAD, LEWIS, QUINCE, CANTERO, and BELL, JJ., concur.

APPENDIX

3.6(f) JUSTIFIABLE USE OF DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of deadly force 1-ikely-to-eausc death or-great-bodily harm.

Definition.

“Deadly force” means force likely to cause death or great bodily harm.

Give if applicable. § 782.02, Fla. Stat.

The use of deadly force likely to cause death-or-great bodily harm is justifiable only if the defendant reasonably believes that the force is necessary to prevent imminent death or great bodily harm to [himself] [herself] while resisting:

1. another’s attempt to murder [him] [her], or
2. any attempt to commit (applicable felony) upon [him] [her], or
3. any attempt to commit (applicable felony) upon or in any dwelling house, residence, or vehicle occupied by [him] [herjj-er.
4 — any attempt-to-commit (applicable felony) in any dwelling house occupied-by-[him] [her].

Insert and define applicable felony that defendant alleges victim attempted to commit

Give if applicable. §§ 776.012, 776.031, Fla. Stat.

A person is justified in using deadly force likely to cause death or great-bodily harm if [he] [she] reasonably believes that such force is necessary to prevent

1. imminent death or great bodily harm to [himself] [herself] or another, or
2. the imminent commission of (applicable forcible felony) against [himself] [herself] or another.

Insert and define applicable fmxible felony that defendant alleges victim was about to commit.

Aggressor._ § 776.01.1, Fla. Stat.

However, the use of deadly force likely to-cause-death-or great bodily harm is not justifiable if you find:

Give if applicable only if the defendant is charged until more than one forcible felony. See Giles v. State, 831 So.2d 1263 (Fla. 1th PGA 2002).

1. (Defendant) was attempting to commit, committing, or escaping after the commission of (applicable forcible felony); or

Define applicable forcible felony. Define after paragraph 2 if both paragraphs 1 and 2 are given.

2. (Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using deadly force likely to cause death or great bodily-harm-to on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and clearly indicated to (assailant) that [he] [she] wanted to withdraw and stop the use of deadly force likely to cause (assailant) continued or resumed the use of force.

Force in resisting arrest § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be, or reasonably appears to be a law enforcement officer.

Give if applicable._

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] (or another), but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.041, Fla. Stat., may need to be given in connection ivith this instruction.

Read in all cases.

In deciding whether defendant was justified in the use of deadly force likely to-cause death or great bodily harm, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of deadly force likely to cause death-or great bodily harm, the appearance of danger must have been 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. Based upon appearances, the defendant must have actually believed that the danger was real.

Necessity-to-avoid-use of deadly force. Readr-imallr-eases

The defendant cannot justify the use of force likely to cause death or great bodily harm unless [he] [she] used every reasonable — means—within—[his]—[her-] power- and consistent with [his-] — [her] own safety to avoid the danger- before resorting-to-that-force»

Retreat. Read in all cases

The — fact—that—the—defendant—was wr-ongfully-attaeked cannot justify [his] [her] use of force likely to cause -death or — great bodily harm if by retreating [he] [she] could-have avoided-the-need to-use that force, — However-r-if-the-defendant-was placed in a position of imminent danger of death or great — bodily harm and it would-have-increased-[his] [her] own danger to retreat,-fhen-[his] [her] use of force likely to-cause-death or great bodily harm was-justifiable

Defense of home-. — Give if-applicable

If the defendant was attacked in [his] [her] own home or on [his] [her] -own premises, [he] [she] had no -duty-to-re~ treat and had the lawful-right to stand [his]-[-her] ground and meet with force with -foree, even to the extent of using force likely to cause death or great-bodily harm if it was necessary to prevent;

[death or great bodily harm -to-[-him~ self] [herself] [another],]
[the commission of a forcible felony,-]

Define felony^

Defense of home-against co-ocGnpmi

If the defendant was attached in [his] [her-]-own home-or on [his] [her]-own premises by a [co-occupant] [any person who-was-lawfully on the premises], the defendant had a duty to retreat within the residence to-the extent reasonably possible without-increasing [his] -[-her-] own — danger of death or great bodily harm.

However, the defendant was not required to flee [his] [her] home and had the lawful right to stand — [-his-]—[her] ground and meet-force with force, even to the extent of using force likely — to cause death or great-bodily harm if it was necessary to-prevent death or great bodily harm to [himself] [herself].

No duty to retreat.

If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Presumption of Fear (dwelling, residence, or occupied vehicle). Give if applicable. See exceptions in § 776.013(2), Fla. Stat., which may negate the giving of this instruction.

If the defendant was in a(n) [dwelling] [residence] [occupied vehicle] where [he] [she] had a right to be, [he] [she] is presumed to have had a reasonable fear of imminent death or great bodily harm to [himself] [herself] [another] if (victim) had [unlawfully and forcibly entered] [removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

Definitions. Give if applicable.

As used with regard to self defense:

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Prior threats. Give if applicable.

If you find that the defendant who because of threats or prior difficulties with (victim) had reasonable grounds to believe that [he] [she] was in danger of death or great bodily harm at the hands of (victim), then the defendant had the right to arm [himself] [herself]. However, the defendant cannot justify the use of deadly force likely to cause-death or — great-bodily--harm, if after arming [himself] [herself] [he] [she] renewed [his] [her] difficulty with (victim) when [he] [she] could have avoided the difficulty, although as previously explained if the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat.

Reputation of victim. Give if applicable..

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases.

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases.

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of deadly force likely-to-cause death or great bodily-har-m, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of deadly force likely to cause death or great bodily harm, you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985, 1999, and 2000, and 2006.

The instruction — for- defense of home against co-occupant is essentially the same as-the- -temporary instruction-adopted by the Florida Supreme Court in Weiand v. State, 732 So.2d 1004 (Fla.1999).

3.6(g) JUSTIFIABLE USE OF NON-DEADLY FORCE

Because there are many defenses applicable to self-defense, give only those parts of the instructions that are required by the evidence.

Read in all cases.

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which (defendant) is charged if the [death of] [injury to] (victim) resulted from the justifiable use of non-deadly force not likely to-cause death or great bodily harm.

Definition.

“Non-deadly” force means force not likely to cause death or great bodily harm.

In defense of person. § 776.012, Fla. Stat. Give if applicable.

(Defendant) would be justified in using non-deadly force not likely- to cause death or great bodily harm against (victim) if the following two facts are proved beyond a reasonable doubt:

Give ifapplieable
1. (Defendant) must have reasonably believed that such conduct was necessary to defend [himself] [herself] [another] against (victim’s) imminent use of unlawful force against the [defendant] [another other- person].
2. The use of unlawful force by (victim) must have appeared to (defendant) to be ready to take place.

In defense of property. § 776.031, Fla. Stat. Give ifapplieable.

(Defendant) would be justified in using non-deadly force not -likely to cause-death-or- great bodily harm against (victim) if the following three facts are proved beyond a reasonable doubt:

Give ifapplieable
1. (Victim) must have been trespassing or otherwise wrongfully interfering with land or personal property.
2. The land or personal property must have lawfully been in (defendant’s) possession, or in the possession of a member of [his] [her] immediate family or household, or in the possession of some person whose property [he] [she] was under a legal duty to protect.
3. (Defendant) must have reasonably believed that [his] [her] use of force was necessary to prevent or terminate (victim’s) wrongful behavior.

No duty to retreat (dwelling, residence, or occupied vehicle). Give if applicable.

If the defendant is in [his] [her] [dwelling] [residence] [occupied vehicle] [he] [she] is presumed to have held a reasonable fear of imminent peril of death or bodily injury to [himself] [herself] [another] if (victim) has [unlawfully and forcibly entered] [has removed or attempted to remove another person against that person’s will from] that [dwelling] [residence] [occupied vehicle] and the defendant had reason to believe that had occurred. The defendant had no duty to retreat under such circumstances.

A person who unlawfully and by force enters or attempts to enter another’s [dwelling] [residence] [occupied vehicle] is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

No duty to retreat (location other than dwelling, residence, or occupied vehicle). Give ifapplieable.

If the defendant was not engaged in an unlawful activity and was attacked in any place where [he] [she] had a right to be, [he] [she] had no duty to retreat and had the right to stand [his] [her] ground and meet force with force, including deadly force, if [he] [she] reasonably believed that it was necessary to do so to prevent death or great bodily harm to [himself] [herself] [another] or to prevent the commission of a forcible felony.

Definitions.

As used with regard to self defense,

“Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent or mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.

“Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.

“Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

Define applicable forcible felony that defendant alleges victim was about to commit.

Give in all cases.

A person does not have a duty to retreat if the person is in a place where [he] [she] has a right to be.

Aggressor § 776.0^1, Fla. Stat.

The use of non-deadly force not likely to-cause- death or great bodily harm is not justified if you find:

Give if applicable._
1. (Defendant) was attempting to commit, committing, or escaping after the commission of a (applicable forcible felony).
Define applicable forcible felony.
2. (Defendant) initially provoked the use of force against [himself] [herself], unless:
a. The force asserted toward the defendant was so great that [he] [she] reasonably believed that [he] [she] was in imminent danger of death or great bodily harm and had exhausted every reasonable means to escape the danger, other than using non-deadly force not-l-ikely-to-cause-death-or- great bodily harm to on (assailant).
b. In good faith, the defendant withdrew from physical contact with (assailant) and indicated clearly to (assailant) that [he] [she] wanted to withdraw and stop the use of non-deadly force not likely to cause death-or-great bodily^-harm, but (assailant) continued or resumed the use of force.

Force in resisting arrest § 776.051(1), Fla. Stat.

A person is not justified in using force to resist an arrest by a law enforcement officer who is known to be or reasonably appears to be a law enforcement officer.

Give the following instruction if applicable.._

However, if an officer uses excessive force to make an arrest, then a person is justified in the use of reasonable force to defend [himself] [herself] [another], but only to the extent [he] [she] reasonably believes such force is necessary. See § 776.012, Fla. Stat.; Ivester v. State, 398 So.2d 926 (Fla. 1st DCA 1981); Jackson v. State, 463 So.2d 372 (Fla. 5th DCA 1985).

In some instances, the instructions applicable to §§ 776.012, 776.031, or 776.011, Fla. Stat., may need to be given in connection with this instruction.

Read in all cases._

In deciding whether the defendant was justified in the use of non-deadly bodily harm, you must judge [him] [her] by the circumstances by which [he] [she] was surrounded at the time the force was used. The danger facing the defendant need not have been actual; however, to justify the use of non-deadly force not likely to cause death or-great bodily-har-m, the appearance of danger must have been 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. Based upon appearances, the defendant must have actually believed that the danger was real.

Reputation of victim. Give if applica-bl&

If you find that (victim) had a reputation of being a violent and dangerous person and that [his] [her] reputation was known to the defendant, you may consider this fact in determining whether the actions of the defendant were those of a reasonable person in dealing with an individual of that reputation.

Physical abilities. Read in all cases._

In considering the issue of self-defense, you may take into account the relative physical abilities and capacities of the defendant and (victim).

Read in all cases._

If in your consideration of the issue of self-defense you have a reasonable doubt on the question of whether the defendant was justified in the use of non-deadly force not likely to cause-death or great bodily harm, you should find the defendant not guilty.

However, if from the evidence you are convinced that the defendant was not justified in the use of non-deadly force not likely-to cause death or--great-bodily harm, then you should find [him] [her] guilty if all the elements of the charge have been proved.

Comment

This instruction was adopted in 1981 and was amended in 1985, and 1992, and 2006.

      . The instruction entitled "Defense of home against co-occupant” is a part of instruction 3.6(f) but is unnumbered. The Committee proposes deleting this part of the instruction.


text:
    Larry ZUCKERMAN and Beth Zuckerman, Petitioners, v. A & B WINDOW AND GLASS, INC., et al., Respondents.
    No. 3D04-2891.
    District Court of Appeal of Florida, Third District.
    March 9, 2005.
    Alan R. Soven, Miami, for petitioners.
    Randall L. Leshin, Pompano Beach, for respondents.
    Before SHEPHERD, SUAREZ, JJ. and SCHWARTZ, Senior Judge.
   PER CURIAM.

We grant certiorari, reverse the decision of the Circuit Court Appellate Division and remand for consideration of the issue of the entitlement to attorney’s fees. The sole issue presented for consideration by the Circuit Court Appellate Division was the issue of entitlement to attorney’s fees, which is a legal issue for which a transcript of the lower proceedings is not required. Somerset Village Ltd. v. Carlton, Fields, Ward, Emmanuel, Smith, & Cutler, P.A., 782 So.2d 414 (Fla. 3d DCA 2001); Seal Products v. Mansfield, 705 So.2d 973 (Fla. 3d DCA 1998); Gaebe, Murphy, Mullen & Antonelli v. Bradt, 704 So.2d 618 (Fla. 4th DCA 1997).

Certiorari is granted and remanded with instructions.


text:
    Leonard DUPREE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-899.
    District Court of Appeal of Florida, Third District.
    Dec. 28, 2005.
    Rehearing and Rehearing En Banc Denied June 14, 2006.
    Israel Jose Encinosa, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael E. Hantman, Assistant Attorney General, for appellee.
    Before COPE, C.J., and LEVY and GERSTEN, JJ.
   PER CURIAM.

Affirmed. See Quince v. State, 732 So.2d 1059 (Fla.1999).