author: PER CURIAM.

text:
    Curtis JONES, et ux., Petitioners, v. MARTIN ELECTRONICS, INC., Respondent.
    No. SC04-1538.
    Supreme Court of Florida.
    June 15, 2006.

      Thomas M. Ervin, Jr. of Ervin, Chapman and Ervin, David H. Burns, Robert Scott Cox and Talley Kaleko of Cox and Burns, P.A., and Benjamin L. Crump of Parks and Crump, LLC, Tallahassee, FL, for Petitioners.
    Fred M. Johnson of Fuller, Johnson and Farrell, P.A., Tallahassee, FL, for Respondent.
    Andrew L. Patten of Sponsler, Bennett, Jacobs and Cristal, P.A., Tampa, FL, on behalf of Florida Defense Lawyers Association, for Amicus Curiae.
   PER CURIAM.

We have for review a decision of a district court of appeal on the following question, which the court certified to be of great public importance:

MAY AN EMPLOYEE RECEIVING WORKERS’ COMPENSATION BENEFITS LITIGATE ENTITLEMENT TO ADDITIONAL BENEFITS THEN, HAVING OBTAINED AN AWARD OF THE ADDITIONAL WORKERS’ COMPENSATION BENEFITS, BRING SUIT IN CIRCUIT COURT FOR THE PERSONAL INJURIES SUSTAINED ON THE JOB THAT WERE THE BASIS FOR THE AWARD?

Martin Elecs., Inc. v. Jones, 877 So.2d 765, 769 (Fla. 1st DCA 2004). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We rephrase the certified question to address the factors presented more specifically as follows:

IS AN EMPLOYEE WHO IS ENTITLED TO AND HAS RECEIVED WORKERS’ COMPENSATION BENEFITS FOR A WORKPLACE INJURY BUT HAS NOT PURSUED THE COMPENSATION CASE TO A CONCLUSION ON THE MERITS ES-TOPPED FROM LATER FILING A SEPARATE CIVIL ACTION AGAINST THE EMPLOYER IN CIRCUIT COURT FOR TORT DAMAGES RESULTING FROM THE SAME WORKPLACE INJURY IF THE EMPLOYER’S CONDUCT THAT CAUSED THE WORKPLACE INJURY RISES TO THE LEVEL OF INTENTIONAL CONDUCT SUBSTANTIALLY CERTAIN TO RESULT IN INJURY FOR WHICH THE EXCLUSIVE REMEDY DOCTRINE IS NOT AVAILABLE?

For the reasons that follow, we answer the rephrased question in the negative.

FACTS AND PROCEDURAL HISTORY

The facts of the underlying action were detailed in the district court’s opinion below. The essential facts are not in dispute. On May 1, 2000, while working for Martin Electronics, Mr. Jones suffered third-degree burns over three-fifths of his body’s surface when an explosion occurred in a building on Martin Electronics’ premises. See Martin Elecs., 877 So.2d at 767. Mr. Jones did not regain consciousness until July 11, 2000. See id. He endured twenty-four surgeries and all of his fingers and both thumbs were amputated. See id. From the beginning, Martin Electronics and its workers’ compensation carrier voluntarily provided workers’ compensation benefits. See id. A dispute between the parties arose concerning only the hourly rate for attendant care that Mrs. Jones furnished. See id. Mr. Jones filed a petition to alter this attendant care benefit with the Office of the Judges of Compensation Claims in February of 2001. See id. Prior to a contested hearing on the petition, the parties completed a preprinted standard form stipulation by answering questions with regard to the incident. See id. On this form, Mr. Jones circled “yes” in response to the statement “accident or occupational disease accepted as compen-sable.” See id. On January 29, 2003, the judge of compensation claims entered an order granting the petition, approving and adopting as a finding of fact the parties’ stipulation to the effect that Mr. Jones sustained a compensable injury and awarding additional monies for Mrs. Jones’s attendant services. See id. With a modification not pertinent to the instant matter, the First District affirmed the modification of additional attendant care benefits. See Martin Elecs. v. Jones, 871 So.2d 277 (Fla. 1st DCA 2004).

While receiving these compensation benefits, Curtis and Annie Jones (“the Joneses”) filed the complaint in circuit court in the present case on January 7, 2003, seeking damages in tort. As amended on March 18, 2003, the complaint alleged in pertinent part:

7. At the time of his injuries, CURTIS JONES was an employee of MARTIN and was in the course and scope of his employment with MARTIN.
8. While MARTIN did not have an actual intent to injure CURTIS JONES, the injuries to CURTIS JONES were the result of intentional conduct on the part of MARTIN that was substantially certain to result in injury or death.

Martin Elecs., 877 So.2d at 767. Martin Electronics moved for summary judgment on the basis that Mr. Jones had elected the workers’ compensation system as his remedy for the injuries alleged in this civil lawsuit, and, therefore, as a matter of law was precluded from recovering damages from Martin Electronics in a civil action. See id. at 767-68. The circuit court denied Martin Electronics’ motion for summary judgment, ruling that Mr. Jones was entitled to receive workers’ compensation benefits and also pursue the tort action against Martin Electronics under the allegations presented. See id. at 766. The trial court reasoned that Martin Electronics was not entitled to workers’ compensation immunity if the facts alleged in the complaint were established. See id.

Martin Electronics sought review in the First District of the trial court’s order which determined that it was not entitled to immunity. See id. Martin Electronics asserted on appeal that Mr. Jones had elected the workers’ compensation remedy by actively pursuing the workers’ compensation claim to a conclusion on the merits, and, therefore, the Joneses were judicially estopped from pursuing the intentional tort claim. See id. at 768.

In its opinion, the First District held that Mr. Jones had elected his remedy under the workers’ compensation statutory scheme, reasoning that

filing a petition for additional attendant care benefits, litigating before the judge of compensation claims on the theory that a covered industrial accident occurred, and obtaining an order predicated on the finding that Mr. Jones sustained an injury by accident “implie[d] a conscious intent ... to choose compensation benefits over a tort action.”

Id. (quoting Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984)). Ultimately, the district court reversed the trial court’s order denying Martin Electronics’ motion for summary judgment and remanded the case for entry of a summary final judgment in favor of Martin Electronics. See Martin Elecs., 877 So.2d at 768. The district court also certified the question currently before this Court as one of great public importance. See id. at 769.

Review of the First District’s decision is sought here, which we have granted. See Jones v. Martin Elecs., Inc., 894 So.2d 970 (Fla.2005) (table).

ANALYSIS

Workers’ Compensation Immunity

Florida’s workers’ compensation system was designed, intended, and contemplated for workplace injuries that have occurred in the course and scope of employment. The workers’ compensation system seeks to balance competing interests and provide tradeoffs between employees and employers. Specifically, the workers’ compensation system provides employees limited medical and wage loss benefits, without regard to fault, for losses resulting from workplace injuries in exchange for the employee relinquishing his or her right to seek certain common law remedies from the employer for those injuries under certain circumstances.

On the date Mr. Jones was injured, section 440.11(1) of the Florida Statutes (2000), provided, “The liability of an employer prescribed in s[ection] 440.10 shall be exclusive and in place of all other liability of such employer ... to the employee-” § 440.11(1), Fla. Stat. (2000). This provision provides the employer immunity from liability for an employer’s negligence that has caused the employee’s workplace injury. See Aguilera v. Inservices, Inc., 905 So.2d 84, 90-91 (Fla.2005). Notwithstanding the tradeoffs provided, we have established and continue to hold that an employer’s immunity under the workers’ compensation system does not extend to workplace injuries caused by conduct of the employer so egregious that it is tantamount to an intentional tort. See id. at 90 (“The workers’ compensation system limits liability only for negligent workplace conduct which produces workplace injury, but does not extend to immunize intentional tortious conduct.”) (citing Tur ner v. PGR, Inc., 754 So.2d 683, 687 (Fla.2000) (“[W]e reaffirm our prior decisions recognizing, as have our district courts and many jurisdictions around the country, that workers’ compensation law does not protect an employer from liability for an intentional tort against an employee.”)). However, an employee is not precluded from filing an action against his or her employer for intentional conduct substantially certain to result in injury simply because some workers’ compensation benefits have been paid. See Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991); Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984). Precluding a worker from pursuing a remedy for a workplace injury caused by an employer’s intentional tortious conduct would conflict with the intent and spirit of Florida’s workers’ compensation system and would not operate to further its goals if the mere payment of some compensation benefits under the factual circumstances here operated to eliminate such a right.

Martin Electronics asserts that the Joneses are estopped from advancing this action because Mr. Jones elected his exclusive remedy under the workers’ compensation statutory scheme by filing for and receiving a change in only the attendant care benefits being paid by Martin Electronics’ workers’ compensation insurance carrier. See Martin Elecs., 877 So.2d at 768. For the reasons provided in our analysis below, we hold that an employee who is injured in the workplace during the course and scope of his or her employment and receives workers’ compensation benefits, but does not pursue a compensation claim to a conclusion on the merits, may file an action against an employer for that workplace injury under these circumstances if the employer’s conduct is to the level of intentional conduct substantially certain to result in injury for which workers’ compensation immunity is not available.

Election of Remedies

The district court below held that Mr. Jones elected his exclusive remedy under the workers’ compensation statute by merely filing for an adjustment in the rate of attendant care benefits that the Joneses received for Mrs. Jones’s attendant care. See Martin Elecs., 877 So.2d at 768. The district court explained that Mr. Jones’s actions with respect to this adjustment in benefits “implie[d] a conscious intent ... to choose compensation benefits over a tort action.” Id. (quoting Velez, 457 So.2d at 1390). However, our review of the facts in the instant matter leads us to conclude that Mr. Jones’s actions with respect to this claim under these circumstances did not amount to an inconsistent election of remedies which would bar the subsequent common law action against Martin Electronics under the allegations here.

We have established that “[a]n election of remedies presupposes a right to elect. It is a choice shown by an overt act....” Williams v. Robineau, 124 Fla. 422, 168 So. 644, 646 (1936). However, in the context of workers’ compensation, the point upon which a worker’s action with regard to a compensation claim constitutes an election of the workers’ compensation remedy to the exclusion of a civil action is not entirely clear. Florida courts have clearly stated that the “[mjere acceptance of some compensation benefits ... is not enough to constitute an election” of remedies. Velez, 457 So.2d at 1390 (quoting Whitney-Fidalgo Seafoods, Inc. v. Beukers, 554 P.2d 250, 254 (Alaska 1976)); see also Wheeled Coach Indus., Inc. v. Annulis, 852 So.2d 430, 432 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wishart, 573 So.2d at 184. In Wheeled Coach Industries, Inc. v. Annulis, 852 So.2d 430 (Fla. 5th DCA 2003), the Fifth District reasoned that “to constitute an election of remedies the workers’ compensation remedy must be pursued to a determination or conclusion on the merits.... There must be evidence of a conscious intent by the claimant to elect the compensation remedy and to waive his other rights.” Id. at 433 (quoting Lowry, 650 So.2d at 657); see also Williams v. Duggan, 153 So.2d 726, 726 (Fla.1963); Robineau, 124 Fla. at 426, 168 So. 644; Hernandez, 766 So.2d at 1253. An analysis of the facts in Wheeled Coach Industries is helpful to our resolution of this case.

In Wheeled Coach Industries, an employee was killed while working on a truck. See 852 So.2d at 431. The employer’s workers’ compensation carrier began making benefit payments without the employee’s widow ever filing a claim for workers’ compensation benefits. See id. at 432. The same circumstance is presented here. See Martin Elecs., 877 So.2d at 767. Approximately seven months later, the employee’s widow filed a petition with the Office of the Judges of Compensation Claims seeking a change in the payment schedule from biweekly to monthly. See Wheeled Coach Indus., 852 So.2d at 431. The petition was granted and the deceased employee’s widow began receiving monthly benefits payments. See id. Subsequently, the employee’s widow filed a wrongful death action alleging that the employer had intentionally caused her husband’s death. See id. at 430. The employer moved for summary judgment on the theory that the employee’s widow had elected her remedy under the workers’ compensation scheme by accepting benefits and applying for a change in the benefit payment schedule. See id. at 431. The trial court denied the motion and the employer sought review in the Fifth District. See id. at 430. On appeal, the Fifth District reasoned that the employee’s widow had not elected her remedy under the workers’ compensation scheme because she had not filed a claim for benefits, only for an interim change, nor had she proceeded to a conclusion on the merits in the workers’ compensation case. See id. at 432. The Fifth District noted that the widow’s “petitioning to change the schedule of payments did not evince a conscious intent to elect workers’ compensation benefits or to waive her other rights.” Id. The district court added that “even if [the widow’s] request to reschedule the payments constituted a petition for benefits, she would not be precluded from filing suit because she did not pursue the workers’ compensation claim to a conclusion on the merits.” Id. at 433.

The facts of the instant matter are most similar to those in Wheeled Coach Industries. Subsequent to Mr. Jones’s catastrophic injuries, the compensation carrier for Martin Electronics began paying compensation benefits despite the fact that no claim for such benefits had been filed. See Martin Elecs., 877 So.2d at 767. Approximately ten months later, Mr. Jones filed a petition with the Office of the Judges of Compensation Claims only for an adjustment in the hourly rate of attendant care benefits which the compensation carrier had voluntarily paid since shortly after his injury. See id. After a hearing in which Martin Electronics contested the appropriate rate of attendant care benefits, the judge of compensation claims entered an order granting the petition and adjusting only the rate of attendant care benefits. See id. Unlike the Fifth District in Wheeled Coach Industries, however, the First District below held that these actions with regard to a petition for an adjustment in the attendant care benefit rate being paid did constitute a “conscious intent ... to choose compensation benefits over a tort action.” Martin Elecs., 877 So.2d at 768. We disagree with the district court’s holding below.

We hold that the petition for an adjustment in attendant care benefit rates under these circumstances did not amount to pursuit to a conclusion on the merits of a workers’ compensation claim and, therefore, did not constitute an inconsistent election of remedies. The petition was simply a request for a change in the rate used to calculate a benefit that the compensation carrier had been voluntarily providing from the time of injury. The facts here are most similar to the widow’s request in Wheeled Coach Industries for a change in the payment schedule of the compensation benefits already being paid. The sole subject matter of the contested hearing regarding the petition here addressed the rate for attendant care services. The issue of whether the incident which resulted in Mr. Jones’s injuries was compensable or caused by neglect or intent was not litigated pursuant to this petition. Neither Mr. Jones’s entitlement to workers’ compensation benefits nor the extent of his injuries was ever a contested issue, as the compensation carrier for Martin Electronics began voluntarily making benefit payments almost immediately after Mr. Jones sustained his injuries. See Martin Elecs., 877 So.2d at 767. Therefore, the petition, hearing, and resulting order here did not constitute litigation to a conclusion on the merits of Mr. Jones’s compensation claim and, in accordance with established Florida law, did not constitute an election by Mr. Jones of his workers’ compensation remedy. See Duggan, 153 So.2d at 726; Robineau, 124 Fla. at 426, 168 So. 644; Wheeled Coach, 852 So.2d at 433; Hernandez, 766 So.2d at 1253; Lowry, 650 So.2d at 657.

Similarly, the petition filed here did not evince a conscious intent to choose workers’ compensation benefits and to reject any potential tort claim. Although Mr. Jones was required to complete a standard pretrial form questionnaire, and he did circle “yes” next to the statement “Accident or occupational disease accepted as compensable,” the answering of this yes/no question on a standard form questionnaire required to have the attendant care benefit rate issue resolved was not a “conscious intent by [Mr. Jones] to elect the compensation remedy and to waive his other rights.” Lowry, 650 So.2d at 657; see also Wheeled Coach Indus., 852 So.2d at 433. The fact that Mr. Jones could receive benefits under the workers’ compensation statutory scheme is not contested. The issue here is whether his actions constituted such an election. The answer to a standard yes/no question on a form prehearing questionnaire which was designed only to outline the disputed issues was not enough to constitute a knowing waiver of any common law rights against Martin Electronics for the intentional injuries as alleged here.

We reaffirm the long line of cases holding that the mere receipt of compensation benefits under these circumstances does not constitute an election of remedies on the part of this injured employee. See Wheeled Coach Indus., 852 So.2d at 432; Hernandez, 766 So.2d at 1252; Lowry, 650 So.2d at 657; Wishart, 573 So.2d at 184; Velez, 457 So.2d at 1390. In the instant matter, the conduct with regard to the petition for only an adjustment in the rate of attendant care benefits did not amount to such a clear overt act evincing a waiver of all common law intentional tort remedies. The Joneses are not barred from filing the present action against Martin Electronics.

Protections Against Double Recovery

Our decision today will not allow an employee to be entitled to a double recovery. Benefits under the workers’ compensation act include medical expenses and disability benefits. See §§ 440.13, 440.15, Fla. Stat. (2000). Although in a tort action an injured employee may theoretically be entitled to recover some of the same types of damages recoverable under the compensation act, namely medical expenses and lost wages, the common law award for an employer’s intentional tor-tious conduct represents a supplemental remedy for damages such as pain and suffering, and loss of spousal services, which are not provided for under the workers’ compensation act. The tort action may also provide an avenue for the imposition of punitive damages against an employer who intentionally injures employees. Ultimately, an injured employee would only be entitled to recover for each element of damage once. The workers’ compensation statute specifically includes a provision which both protects against double recovery and operates to ensure that workers’ compensation carriers are reimbursed in the instance that a third-party tortfeasor is found liable for the employee’s injuries. See § 440.39, Fla. Stat. (2000).

Section 440.39 of Florida’s workers’ compensation statute ensures both that litigants will not be allowed double recovery for their injuries and that workers’ compensation coverage will not ultimately be responsible in situations where an employee’s injuries are caused by the employer’s, or any other third party’s, tortious conduct. See § 440.39, Fla. Stat. (2000). Under the workers’ compensation statute, if an injured employee files a civil action for damages previously compensated by workers’ compensation benefits, compensation insurance carriers are authorized to file a notice of payment of benefits which operates as a lien on any subsequent judgment to the extent that the judgment includes damages of the same type as benefits paid under the workers’ compensation plan (e.g., medical benefits and wage compensation). See § 440.39(3)(a), Fla. Stat. (2000). After judgment is entered against a tortfeasor and in favor of the injured employee, the workers’ compensation coverage will be reimbursed from liability damages for benefits paid as a result of the injury. If, however, the employer has engaged in conduct against the injured employee such that the employee is entitled to damages for pain and suffering and other elements of damage not covered under the workers’ compensation statutory scheme, section 440.39 allows the workers’ compensation coverage to be refunded or credited for amounts previously paid.

Further, even if the workers’ compensation carrier does not file a notice of payment in any subsequent civil action which would operate as a lien on any judgment in favor of the injured employee, Florida’s collateral source statute would at least prevent a double recovery on the part of the injured employee. See § 768.76(1), Fla. Stat. (2005). Section 768.76 of the Florida Statutes states that “the court shall reduce the amount of [damage] award[s] by the total of all amounts which have been paid for the benefit of the claimant.” Id. Florida courts have stated that “workers’ compensation benefits are a collateral source within the meaning of section 768.50(2)(a)(2), Florida Statutes (1983).” Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 317 (Fla. 2d DCA 1987), adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988). Therefore, even if the insurance carrier fails to take the actions necessary to entitle it to a reimbursement, the employee would still not be allowed double recovery because the court would reduce any amount paid as workers’ compensation benefits as a collateral source.

CONCLUSION

For the foregoing reasons, we answer the rephrased certified question in the negative and hold that an employee who receives compensation benefits for a workplace injury under these circumstances is not barred from filing an action against an employer for the injury. The employee has not consciously elected an inconsistent workers’ compensation remedy under these circumstances, and if the claimant can demonstrate that the employer’s conduct causing the workplace injury is to the level otherwise required by law for such action, there is no compensation bar. Accordingly, we quash the decision below, and remand with instructions to return the case to the trial court for further proceedings consistent with this opinion.

It is so ordered.

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

      . It is important to note, however, that this Court has approved a holding that the collateral source statute does not extinguish a carrier's right under section 440.39 to apply for a lien on the judgment thereby recovering the amount of any benefits paid to an injured employee whose injuries are later adjudicated to be caused by a third-party tortfeasor. See Am. Mut. Ins. Co. v. Decker, 518 So.2d 315, 318-19 (Fla. 2d DCA 1987), adopted in Liberty Mut. Ins. Co. v. Chambers, 526 So.2d 66, 67 (Fla.1988). The importance of the two statutory provisions is to simply operate to preclude double recovery.


source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    Mary L. HILL, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 5D05-62.
    District Court of Appeal of Florida, Fifth District.
    June 9, 2006.
    Rehearing Denied July 11, 2006.
    Paula C. Coffman, Orlando, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee/Cross-Appellant.
   MONACO, J.

In this tragic case, Mary L. Hill appeals the judgment and sentence adjudicating her guilty of vehicular homicide, manslaughter, and actual infliction of personal injury by culpable negligence, and the order denying her motion for new trial. She first argues that the trial court erred in overruling her objection to the comments of the prosecutor during closing argument. We discern no error in this regard. She next argues that the trial court erred in denying her motion for new trial based on newly discovered evidence. Although we affirm on this basis as well, the argument merits discussion.

This court summarized the background facts of this case in Hill v. State, 846 So.2d 1208 (Fla. 5th DCA 2003):

The events giving rise to this proceeding are tragic. On August 7, 2000, Dennis Hill drove Mary Hill, to an appointment with her psychiatrist, Dr. Gfeller in the early afternoon. Dennis was driving Mary’s car, a 1996 BMW, because his car was being repaired. After the appointment, with Dennis still driving, they picked up their daughter at her middle school, in Seminole County. They also picked up two neighborhood children who needed a ride home, on an informal, not pre-arranged, basis. The three children sat in the back seat, wearing seatbelts. Dennis drove to an Exxon station where he had left his car.
Because Dennis intended to drive his own car home, Mary moved to the driver’s seat, in her car, and headed for their home. She drove West on Lake Mary Boulevard and then South on Markham Woods Road. There was evidence Mary drove her car at a high rate of speed on Lake Mary Boulevard and accelerated after an intersection onto Markham Woods. She lost control of the car on a curve. The car skidded off the road and struck a tree. The crash resulted in the deaths of their daughter and one of the neighborhood children, and severe injuries to the other child.

Id at 1209-10.

One of the key witnesses at the trial was James Arthur. Mr. Arthur was in a van immediately behind Mrs. Hill at the time of the incident. He testified that she was driving in a dangerous fashion before she came to a stop light at the corner of Lake Mary Boulevard and Markham Woods Road. He said that Mrs. Hill almost sideswiped him, and that she slid into the intersection past the stop bar, and then had to put her car in reverse. When she did so, according to Mr. Arthur, he feared that she would hit his van. When the light changed, Mr. Arthur testified that Mrs. Hill screeched her tires as she accelerated, and that within two blocks she lost control of the car and crashed into the tree. Mrs. Hill’s defense, on the other hand, was that she had been driving safely, but that a malfunction in the cruise control system caused her car to accelerate suddenly and unexpectedly, causing the accident. Indeed, a fair amount of the trial was consumed with opposing experts testifying concerning the cruise control system in Mrs. Hill’s vehicle. In any event, while there were a number of witnesses who contradicted some parts of Mr. Arthur’s testimony, the jury agreed with the prosecution’s version of the facts, and convicted Mrs. Hill, as indicated.

Subsequent to the trial, and four years after the accident, two persons, Mr. and Mrs. Chatman, contacted defense counsel and advised him that they were in a vehicle directly behind the van driven by Mr. Arthur. The Chatmans were in the area of the accident because they had picked up their two sons from high school, and after going over some paperwork with one son’s teacher, they proceeded to Lake Mary Boulevard. At a hearing on the defense motion for new trial the Chatmans and one of their sons testified, essentially, that while they could not see what happened after the light changed (the Arthur van having blocked their view), they saw the Hill car and it was being operated in a normal fashion. They said that they saw Mrs. Hill’s car change lanes, but they did not observe any near sideswiping of the van.

There were a number of problems with the proposed testimony of Mr. and Mrs. Chatman, however. In addition to some internal inconsistencies between the testimony of Mr. and Mrs. Chatman, there was a timing issue that was puzzling. Although the accident happened at 4:15 p.m., the Chatmans’ sons were let out of school at 2:20 p.m., about 90 minutes before Mrs. Hill picked up the children who rode in her car from the adjacent middle school. The Chatmans’ son testified that he waited for 15 to 20 minutes for his parents to arrive at his school, and the teacher conference took 10 to 20 minutes. This still left a time discrepancy of about 50 minutes that was never fully explained.

At the conclusion of the testimony the well-experienced and eminently qualified trial judge first considered the test to be applied in determining whether a new trial of a criminal case should be granted because of newly discovered evidence. Florida Rule of Criminal Procedure 3.600(a)(3) provides that a court shall grant a new trial if the defendant brings forth “[n]ew and material evidence, which, if introduced at the trial would probably have changed the verdict or finding of the court, and which the defendant could not with reasonable diligence have discovered and produced at the trial, has been discovered.” The Florida Supreme Court has explained that this rule can be reduced to two components:

In order to provide relief on the ground of newly discovered evidence, the asserted facts must have been: (1) unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known them by the use of diligence; and (2) the newly discovered evidence must be of such a nature that it would probably produce an acquittal on retrial.

Rogers v. State, 783 So.2d 980, 1003 (Fla.2001) (citing Melendez v. State, 718 So.2d 746, 747 (Fla.1998); Blanco v. State, 702 So.2d 1250, 1251 (Fla.1997); Jones v. State, 591 So.2d 911, 915 (Fla.1991)).

The State does not contest the issue of whether the new evidence was unknown by the court, party or counsel at the time of trial, and the trial court found that the evidence brought forward by Mrs. Hill clearly met this part of the standard. Accordingly, as the trial court did, we will concentrate on the second part of the test — whether the newly discovered evidence would probably produce a different result had it been introduced at trial.

In Jones v. State, 709 So.2d 512, 521 (Fla.), cert. denied, 523 U.S. 1040, 118 S.Ct. 1350, 140 L.Ed.2d 499 (1998), the Supreme Court of Florida explained that to make this determination, the trial court must consider the evidence that would be admissible at trial, and evaluate the weight of that evidence vis-a-vis the evidence that was, in fact, introduced at trial. See also Sims v. State, 754 So.2d 657 (Fla.), cert. denied, 528 U.S. 1183, 120 S.Ct. 1233, 145 L.Ed.2d 1122 (2000). The court further instructed:

In considering the second prong, the trial court should initially consider whether the evidence would have been admissible at trial or whether there would have been any evidentiary bars to its admissibility. Once this is determined, an evaluation of the weight to be accorded the evidence includes whether the evidence goes to the merits of the case or whether it constitutes impeachment evidence. The trial court should also determine whether the evidence is cumulative to other evidence in the case. The trial court should further consider the materiality and relevance of the evidence and any inconsistencies in the newly discovered evidence. Where, as in this case, some of the newly discovered evidence includes the testimony of individuals who claim to be witnesses to events that occurred at the time of the crime, the trial court may consider both the length of the delay and the reason the witness failed to come forward sooner.

Jones at 521-22 [citations omitted]; see also Rutherford v. State, 926 So.2d 1100 (Fla.), cert. denied, — U.S. -, 126 S.Ct. 1191, 163 L.Ed.2d 1145 (2006); Robinson v. State, 770 So.2d 1167 (Fla.2000).

In the present case the trial judge found that the evidence, although cumulative, would have been admissible. He considered the materiality and relevance of the evidence, and noted cogently, that the testimony would not be reflective of what happened after Mrs. Hill left the traffic light. The Chatmans could not see what happened because they were behind Mr. Arthur’s van. He noted the inconsistencies and timing issues inherent in the testimony, and then applied the test articulated in rule 3.600(a)(3). Because the trial judge applied the correct law, we conclude that we should review this case using an abuse of discretion standard. See Newkirk v. State, 791 So.2d 1206 (Fla. 5th DCA 2001); Gordon v. State, 744 So.2d 1112 (Fla. 5th DCA 1999), approved, 780 So.2d 17 (Fla.2001). In this connection the Florida Supreme Court has noted that if a trial court’s order is supported by competent, substantial evidence, then a reviewing court should not substitute its judgment for that of the trial court on either questions of fact, the credibility of the witnesses, or the weight to be accorded to the evidence by the trial court. Blanco, 702 So.2d at 1252 (citing Demps v. State, 462 So.2d 1074, 1075 (Fla.1984)); see also Goldfarb v. Robertson, 82 So.2d 504, 506 (Fla.1955).

The troubling question facing the trial court was whether the testimony of the Chatmans would probably have produced an acquittal on retrial. The trial judge in considering this issue said the following:

Now, I’ve taken the time to explain my feelings about it because I know that this ruling is going to be reviewed and my colleagues over in Daytona certainly know how to tell me if I’m wrong. And it is a close case. I’ll be the first to say it. And if I had the feeling that truly what I have heard would probably change the verdict in this case, I would grant a new trial without a hesitation, but I just don’t feel that way.
I’ve considered it all, and I’m far more familiar with the record than you think, and I just don’t believe that this is the case and this is the time for this motion. So I’m going to deny it and I’m going to enter my own order and we’re in recess.

The trial court did not abuse its discretion. Accordingly, we affirm.

AFFIRMED.

PLEUS, C.J. and LAWSON, J„ concur.

      . § 782.071, Fla. Stat (2001).

      . § 782.07, Fla. Stat. (2001).

      .§ 784.05(2), Fla. Stat. (2001).

      . We also had before us the facts of this case in a family law context in Brown v. Brown, 873 So.2d 601 (Fla. 5th DCA 2004).


author: RAMIREZ, J.

text:
    Rudolph MANUEL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-1373.
    District Court of Appeal of Florida, Third District.
    June 14, 2006.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Olga L. Villa, Assistant Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

The defendant, Rudolph Manuel, appeals the trial court’s final judgment adjudicating him guilty of possession of cocaine, as well as the denial of his dis-positive motion to suppress evidence and statements. Because the arresting officer did not have a reasonable suspicion to conduct an investigative stop of Manuel, the resulting seizure was illegal. Consequently, the trial court erred in denying his motion to suppress.

Manuel went to trial on a charge of possession of cocaine with intent to sell within 1,000 feet of a community center. Prior to trial, he filed a motion to suppress cocaine that was seized, claiming that the police did not have reasonable suspicion to justify the stop. The trial court denied the motion.

The facts at trial established that Officers Cuneo and Smith of the Key West Police Department were driving by a public housing project when they saw an individual named Brandon Wallace standing on the housing project’s property. Officer Cuneo testified that the housing project was a high crime area. Both officers saw Wallace throw something into a car, but they had no idea what he threw.

The officers exited their vehicle and saw Wallace jog away from the area. Wallace had already received a trespass warning not to go on the housing project’s property, so Officer Smith told Officer Cuneo to follow Wallace. Officer Cuneo got back into his car, followed Wallace for several blocks, then saw him run into an alley. As Wallace was running through the alley, he almost collided with Manuel, who was jogging in the opposite direction through the alley.

Officer Cuneo knew Manuel from the neighborhood and knew that he was friends with Wallace, so he decided to stop and detain both Wallace and Manuel so that he could investigate further. Officer Cuneo testified that he detained Manuel because he thought it was suspicious that he was running in the alley, that he was friends with Wallace, and that the detention area was a high crime area. Officer Cuneo admitted that he had no suspicion that Manuel had committed a crime prior to the stop.

While Manuel was being detained, Officer Cuneo claimed that he saw him throw three plastic bags to the ground. Officer Cuneo retrieved the bags that he believed contained cocaine and then arrested Manuel. Manuel was taken back to the police station. Officer Smith testified that after reading Officer Cuneo’s report, he remembered that Manuel waived his rights and admitted that he had thrown one of the baggies that was recovered by Officer Cu-neo.

At the conclusion of the State’s case, the trial judge granted Manuel’s motion to reduce the charge to simple possession of cocaine. The jury found Manuel guilty of possession of cocaine. The court sentenced Manuel to thirty months in state prison and then suspended the sentence and ordered that Manuel serve six months community control, followed by two years probation.

Manuel contends that the trial court erred in denying his motion to suppress the cocaine because the seizure of the physical evidence was the direct fruit of an illegal stop. In response, the State argues that the trial court did not err because Officer Cuneo had reasonable suspicion to stop Manuel.

An officer may conduct an investigatory stop of an individual when the officer has a reasonable, articulable suspicion that a person has committed, is committing, or is about to commit a crime. See Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). See also Abraham v. State, 532 So.2d 91 (Fla. 4th DCA 1988); § 901.151, Fla. Stat (“Florida Stop and Frisk Law”)(2000). “A founded suspicion is a suspicion which has some factual foundation in the circumstances observed by the officer, when those circumstances are interpreted in the light of the officer’s knowledge.” State v. Stevens, 354 So.2d 1244, 1247 (Fla. 4th DCA 1978). A mere or bare suspicion is insufficient. See McDavid v. State, 889 So.2d 145 (Fla. 1st DCA 2004).

The operative facts in this case do not demonstrate a well-founded suspicion of criminal activity to justify an investigative detention. The transcript clearly reflects that the arresting officer admitted at the hearing on Manuel’s motion to suppress the cocaine, that at the time he detained Manuel, he did not believe that Manuel had committed, was committing, or was about to commit a crime. Because the initial stop was not based on reasonable suspicion, the subsequent seizure of the cocaine which Manuel threw away after the illegal detention should have been suppressed. The investigatory stop was illegal, and thus reversal on this point is warranted. See McMaster v. State, 780 So.2d 1026 (Fla. 5th DCA 2001). Accordingly, we reverse Manuel’s conviction, reverse the denial of his suppression motion, and remand to the trial court with instructions to discharge Manuel.

Reversed and remanded with instructions.


text:
    Joseph COLE, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-812.
    District Court of Appeal of Florida, Fourth District.
    June 14, 2006.
    Carey Haughwout, Public Defender, and Jeffrey N. Golant, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Joseph Cole appeals the Drug Offender Probation Standard Conditions contained in Part II of the Orders of Supervision for Drug Offender Probation imposed against him as a result of no contest pleas in two separate cases. We reverse.

In Lower Tribunal Case No. 02-2062CF10A, Joseph Cole was charged with burglary (conveyance). In Lower Tribunal Case No. 02-8079CF10A, Cole was charged with burglary (battery), criminal attempt sexual battery, aggravated battery, false imprisonment (armed), and aggravated stalking.

Cole pleaded no contest in both cases and entered into a negotiated plea under which he would serve three years in prison followed by five years of drug offender probation. The trial court orally imposed drug offender probation but did not state any conditions of that probation on the record. The judgment entered by the trial court did not include written probation orders imposing conditions of probation for the split sentence.

A successor trial court entered probation orders upon Cole’s release from prison nunc pro tunc to the date of the judgment, concluding that doing so based on the prior trial court’s oral pronouncement was a ministerial act. These written orders specifically imposed drug offender probation, including the objected-to Drug Offender Probation Standard Conditions requiring Cole to be financially responsible for drug testing and counseling, requiring the completion of a non-secure or inpatient drug treatment program, and requiring compliance with any curfew, residence, or travel restrictions imposed.

On appeal, Cole contends that the trial court’s oral pronouncement of drug offender probation was insufficient to impose the unannounced Drug Offender Probation Standard Conditions requiring financial responsibility for drug testing, drug treatment, and curfew compliance, because those conditions were special in nature despite being called Drug Offender Probation Standard Conditions. The State responds that the challenged conditions were not special conditions and were standard conditions under Florida Statutes sections 948.03 and 948.20, and consequently did not require oral pronouncement prior to being reduced to a written order.

The Florida Supreme Court has recognized a “distinction between special conditions of probation that must be orally pronounced at sentencing and those general conditions for which oral pronouncement is unnecessary.” State v. Hart, 668 So.2d 589, 592 (Fla.1996). The rationale for this distinction is as follows:

It has been held that the usual “general conditions” of probation are those contained within the statutes. Hart, 651 So.2d [112] at 113 [ (Fla. 2d DCA 1995) ]. In other words, a condition of probation which is statutorily authorized or mandated, see, e.g., sections 948.03-034, Florida Statutes (1993), may be imposed and included in a written order of probation even if not orally pronounced at sentencing. Nank v. State, 646 So.2d 762, 763 (Fla. 2d DCA 1994). “The legal underpinning of this rationale is that the statute provides ‘constructive notice of the condition which together with the opportunity to be heard and raise any objections at a sentencing hearing satisfies the requirements of procedural due process.’ ” Id. (quoting Tillman v. State, 592 So.2d 767, 768 (Fla. 2d DCA 1992)).
“With regard to a special condition not statutorily authorized, however, the law requires that it be pronounced orally at sentencing before it can be included in the written probation order.” Id. Consequently, when a trial court sufficiently apprises the defendant of the “substance of each special condition” so that the defendant has the opportunity to object “to any condition which the defendant believes is inappropriate” the minimum requirements of due process are satisfied. Olvey, 609 So.2d [640] at 643 [ (Fla. 2d DCA 1992) ].

Id.

Traditionally, whether a probation condition is a general condition or a special condition is determined by reference to Florida Statutes section 948.803 and Florida Rule of Criminal Procedure 3.986(e); conditions which appear in neither the statute nor the rule are considered special and must be orally pronounced. See Welborn v. State, 687 So.2d 35, 36 (Fla. 4th DCA 1997); Tory v. State, 686 So.2d 689, 692 (Fla. 4th DCA 1996). This Court has determined that conditions which must be orally pronounced include curfew and substance abuse treatment requirements in drug offender probation cases. See Tory, 686 So.2d at 692.

The general conditions enumerated in section 948.03 do not include the financial responsibility for drug testing, drug treatment, and curfew conditions set forth in the Drug Offender Probation Standard Conditions. These challenged conditions are also not found in Rule 3.986(e). Additionally, Florida Statutes section 948.20, formerly Florida Statutes section 948.01(13), addressing drug offender probation, does not statutorily mandate these conditions. Section 948.20(1) provides only that: “Drug offender probation status shall include surveillance and random drug testing, and may include those measures normally associated with community control, except that specific treatment conditions and other treatment approaches necessary to monitor the population may be ordered.” Based on the absence of similar drug offender probation conditions from any statute or rule, this Court concluded in Dean v. State, 669 So.2d 1140 (Fla. 4th DCA 1996), that an oral pronouncement of “two years probation, drug offender” was insufficient to impose conditions such as rehabilitation and drug evaluation and treatment, which were deemed special conditions. Id. at 1141-1142.

Similar conclusions to those in Tory and Dean have been reached in other cases. For example, in Ayoub v. State, 901 So.2d 311 (Fla. 2d DCA 2005), the court held that a drug offender probation condition requiring the defendant to pay for drug evaluation and treatment was a special condition that must be orally pronounced and noted that “an oral statement placing a defendant on ‘drug probation’ is insufficient to put the defendant on notice of additional drug-related probation conditions.” Id. at 313-314. Similarly, in Boyd v. State, 688 So.2d 959 (Fla. 2d DCA 1997), the court struck conditions of drug offender probation requiring the defendant to pay for drug testing, evaluation, and treatment, because such conditions were special conditions which required oral pronouncement. Id. at 960.

We conclude that the Drug Offender Probation Standard Conditions imposed in the Orders of Supervision for Drug Offender Probation were special conditions, because they were not provided for by statute or rule, despite their titling as Drug Offender Probation Standard Conditions. Furthermore, the challenged conditions were similar in ilk to the conditions deemed special in Tory, Dean, Ayoub, and Boyd. Therefore, the successor trial court erred by imposing these unannounced special conditions in the Orders of Supervision. Consequently, this case on appeal is reversed and remanded for further sentencing proceedings consistent with this opinion.

Reversed.

GUNTHER, KLEIN and TAYLOR, JJ., concur.


author: PALMER, J.

text:
    Tracie Turner JACKSON and Ulysses B. Jackson, etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL, etc., et al, Appellee.
    No. 5D05-571.
    District Court of Appeal of Florida, Fifth District.
    June 16, 2006.
    Rehearing Denied June 16, 2006.

      Christian D. Searcy, Darryl L. Lewis and Rosalyn Sia Baker-Barnes of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, and Philip M. Burlington, of Burlington & Rockenbach, P.A., West Palm Beach, for Appellants.
    Wilbur E. Brewton, Kelly B. Plante and Tana D. Storey of Roetzel & Andress, L.P.A., Tallahassee, for Appellee NICA.
    Henry W. Jewett, II, Jennings L. Hurt, III, Christian P. Trowbridge of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellees Alejandro J. Pena, M.D., Marc W. Bischof, M.D., and Physician Associates of Florida, Inc.
   ON MOTION FOR REHEARING

PALMER, J.

Traeie and Ulysses Jackson filed a motion for rehearing of this court’s opinion dated March 24, 2006. We grant the motion, withdraw our prior opinion, and issue the following opinion in its stead.

Traeie and Ulysses Jackson appeal the final order entered by the administrative law judge (AL J) on the issues of compens-ability and notice under Florida’s Birth-Related Neurological Injury Compensation Act (NICA). Finding no error, we affirm.

NICA provides an exclusive remedy in the form of compensation for certain statutorily defined birth-related neurological injuries on a no-fault basis. Of particular importance to the instant appeal, NICA requires that physicians give pre-delivery notice to their obstetrical patients of their participation in the NICA plan as a condition precedent to said physicians invoking NICA as the patient’s exclusive remedy. The purpose of the pre-delivery notice requirement is to enable the patient to make an informed choice between hiring an obstetrician who participates in the NICA plan and hiring one who does not. Importantly, the failure of a physician to give the statutory pre-deliv-ery notice to a patient operates to preclude application of NICA’s exclusive remedy provision, thereby entitling the patient to proceed with a medical malpractice lawsuit against the physician for damages arising out of the birth of a child with birth-related neurological injuries. Section 766.316 of the Florida Statutes outlines the notice requirement as follows:

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

§ 766.316, Fla. Stat. (2004).

Here, Traeie and Ulysses Jackson, as parents of Jacqueline Jackson, filed a petition with the Division of Administrative Hearings against the Florida Birth-Related Neurological Injury Compensation Association (the Association) seeking a determination of their entitlement to receive NICA benefits. The petition explained that Jacqueline suffered brain damage as a result of a birth-related neurological injury sustained at the time of her birth. The petition asserted that Jacqueline’s injuries were compensable under NICA, but the attending physicians and the medical group which employed them, Physician Associates of Florida, Inc. (hereinafter collectively referred to as PAF), were not entitled to NICA immunity because they had failed to give Mrs. Jackson proper pre-delivery notice of their participation in the NICA plan.

The parties stipulated that Jacqueline’s claim was compensable under NICA and that the only issue to be resolved was whether adequate pre-delivery notice had been given to Mrs. Jackson by PAF concerning its participation in NICA.

At the hearing, Nurse Liz Posey, an employee of PAF, testified that she informs prenatal patients about the NICA plan by giving them a packet which includes a “Peace of Mind for an Unexpected Problem” pamphlet. Said pamphlet is distributed by NICA to physicians for the purpose of patient education and it outlines the nature of NICA coverage and limitations. She also testified that she verbally advises all prenatal patients that all of the physicians in PAF participate in the NICA plan.

Mrs. Jackson was also given a “Notice to Obstetric Patient” form, which was signed by her. The purpose of the form was to verify the fact that Mrs. Jackson had received the “Peace of Mind” pamphlet. The form signed by Mrs. Jackson had a blank space where the individual names of PAF’s OB-GYN physicians were supposed to have been filled in.

Upon review of the evidence, the ALJ ruled that, “based upon the competent and substantial evidence, this court finds that Ms. Jackson was given sufficient notice during ... [her] initial office visit that all of the obstetricians employed by PAF participated in NICA.” This appeal timely followed.

The Jacksons argue that the ALJ erred, as a matter of law, in concluding that PAF satisfied its burden of proving that proper pre-delivery statutory notice had been provided to Mrs. Jackson. We disagree.

As noted above, section 766.316 of the Florida Statutes outlines NICA’s notice requirement. Under the statute, physicians are required to provide their patients with notice on forms furnished by NICA which clearly explain the patient’s rights and limitations under the NICA plan. The statute further provides that, if the physician has the patient sign a form acknowledging receipt of the NICA form, then a rebuttable presumption arises indicating that the notice requirements of the statute have been met.

The ALJ properly recognized that NICA developed a pamphlet titled “Peace of Mind for an Unexpected Problem.” The pamphlet contains a clear and concise explanation of a patient’s rights and limitations under the NICA plan, as is required by the terms of the statute.

The ALJ then made the finding that the evidence was undisputed that Mrs. Jackson received the “Peace of Mind” pamphlet during her initial prenatal visit to PAF as was required under the statute. The ALJ also noted that the evidence was undisputed that Mrs. Jackson received PAF’s “Notice to Obstetrical Patient” form and that she signed it. However, the ALJ concluded that, since the form had a blank space where the names of the physicians should have been filled in, the notice form was inadequate to give rise to the statutory rebuttable presumption that PAF provided proper notice as outlined in the statute:

There is likewise no dispute that, given the blank space, the notice form was inadequate to provide notice that Dr. Bischof, Dr. Pena, or any obstetrician associated with PAF was a participating physician in the Plan.

The ALJ properly recognized that the factual issue which was disputed was whether Mrs. Jackson was told during her initial visit that all of PAF’s physicians were participants in the NICA plan. In reviewing the evidence in its effort to resolve the dispute, the ALJ concluded:

Here, giving due consideration to the proof, it must be resolved that the more persuasive proof supports the conclusion that, more likely than not, Nurse Posey, consistent with her routine, discussed the NICA program with Mrs. Jackson on her initial visit, and informed Mrs. Jackson that the physicians associated with PAF’s obstetrical program were participating physicians in the Plan. In so concluding, it is noted that, but for the NICA program, Mrs. Jackson acknowledged Nurse Posey otherwise followed her routine; that it is unlikely, given such consistency, Nurse Posey would not have also discussed the NICA program; that Nurse Posey, as was her routine, co-signed each of the forms she discussed with Mrs. Jackson, including the Notice to Obstetric Patient; that Nurse Posey, as was her routine, documented her activity on the prenatal flow sheet; and that Mrs. Jackson evidenced little recall of the documents she signed or the discussions she had with Nurse Posey. Finally, Nurse Posey’s testimony was logical, consistent, and credible, whereas Mrs. Jackson’s testimony was often equivocal.

The Jacksons maintain that the ALJ erred in concluding that PAF proved that it had complied with the pre-delivery notice provisions of the statute, claiming that Nurse Posey’s verbal notice did not comply with the terms of the statute. The Jacksons contend that the language of the statute mandates that physicians give their patients not only a copy of the “Peace of Mind” pamphlet but also written notice of the names of the physicians who are participants in the NICA plan. They claim that, since Mrs. Jackson did not receive written notice as to the names of the PAF physicians who were participating in the NICA plan, PAF failed to comply with its statutory notice obligation. We disagree.

The evidence was sufficient to demonstrate that Mrs. Jackson received proper written notice concerning the nature of the NICA plan as well as proper verbal notice that all of PAF’s physicians were participants in the NICA plan. Contrary to the Jacksons’ claim of error, there is no requirement that the names of the participating physicians be set forth in a written notice. See Galen of Fla., Inc. v. Braniff, 696 So.2d 308 (Fla.1997)(holding that NICA patients must be given pre-delivery notice of physician’s participation in NICA within a reasonable time period prior to delivery, when practical, but not mandating that that notice be in writing).

The Jacksons also argue that the ALJ’s order should be reversed based on the fact that the ALJ relied solely upon Nurse Posey’s testimony as to her routine for conducting initial prenatal visits to reach the factual conclusion that proper statutory notice had been verbally given to Mrs. Jackson. They maintain that, since there was no evidence of PAF’s organizational routine but only of Posey’s personal routine, Posey’s testimony was not properly admissible. They further suggest that Florida law does not authorize the admissibility of Posey’s testimony nor permit it, standing alone, to support the burden of proving a contested factual issue, but instead, only as corroboration to direct evidence. We again disagree.

Review of the record reveals that no objection was raised during the course of Posey’s testimony concerning the admissibility or sufficiency of such evidence. As such, this claim of error was not preserved for appellate review. See Nordyne, Inc. v. Florida Mobile Home Supply, Inc., 625 So.2d 1283 (Fla. 1st DCA 1993)(holding that objection to testimony was not preserved for appellate review where appellant failed to object contemporaneously). However, even if the objection had been properly preserved, we find the evidence now objected to, was admissible. See generally § 120.569(2)(g), Fla. Stat. (2005)(stating that all evidence of a type commonly relied upon by reasonably prudent persons in the conduct of their affairs shall be admissible in administrative proceedings, whether or not such evidence would be admissible in a trial in the courts of Florida).

AFFIRMED.

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

      . Section 766.301 through section 766.316 of the Florida Statutes (2004) sets forth the provisions of Florida’s Birth-Related Neurological Injury Compensation Act.


author: NORTHCUTT, Judge.

text:
    Douglas N. MENCHISE, Bankruptcy Trustee in the matter of Pearl Ann McClelland, Appellant, v. LIBERTY MUTUAL INSURANCE COMPANY, Appellee.
    No. 2D04-5713.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      Richard Slawson of Slawson Cunningham & Whalen, PL, Palm Beach Gardens, and Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, for Appellant.
    Steven L. Brannock and Maegen A. Peek of Holland & Knight LLP, Tampa, for Appellee.
   NORTHCUTT, Judge.

The circuit court granted summary judgment absolving Liberty Mutual Insurance Company of a bad faith claim brought on behalf of the bankruptcy estate of Liberty Mutual’s insured, Pearl Ann McClel-land. We reverse because the undisputed facts did not conclusively establish that Liberty Mutual was entitled to judgment as a matter of law.

On June 5, 1996, McClelland was involved in an automobile accident with Ron Shuler. At the time, McClelland had an automobile liability policy with Liberty Mutual providing bodily injury coverage of $10,000 per person and $20,000 per accident. The day after the accident, a Liberty Mutual adjuster contacted Shuler and learned, among other things, that his neck was stiff and hurting and that he had a headache. Shuler also informed the adjuster that he had previously undergone neck surgery to have a disc removed. Shuler gave his account of the accident and maintained that he was not at fault. During this telephone conversation, Liberty Mutual’s adjuster told Shuler that McClelland received a ticket after the accident and said, twice, that “we are accepting liability.”

According to its file, a week after the accident Liberty Mutual recognized that liability appeared to rest with McClelland. In short order, the insurer settled the property damage claim with Shuler. Liberty Mutual later inquired whether Shuler had seen a doctor. About two months after the accident, Liberty Mutual closed the file with a notation that further contact with Shuler might invite a bodily injury claim. Ironically, on the same day that Liberty Mutual closed its file, an attorney wrote a letter to the insurer advising that he represented Shuler and requesting a statement of coverage and a copy of the policy. See § 627.4137, Fla. Stat. (1995) (requiring the disclosure under oath of certain liability insurance information on request). Liberty Mutual timely responded with information about McClelland’s policy, although its response was not under oath and it did not enclose a copy of the policy.

By September, Liberty Mutual’s adjuster internally characterized the case as one to “price and settle” and reserved the policy limits of $10,000. Liberty Mutual noted that the majority of liability rested with its insured with perhaps some possibility of comparative negligence by Shuler. Also, at this early date Liberty Mutual recognized that this was possibly an “excess exposure” case. Two months later, Liberty Mutual again internally characterized the claim as a “case to settle.” It saw no defenses to liability, but focused on the injury and indicated an interest in obtaining authorizations to review Shuler’s medical records. By December 1996, Liberty Mutual knew from a hospital lien that Shuler had incurred medical bills of $27,063.

On February 11, 1997, Shuler’s attorney wrote Liberty Mutual offering to settle the claim. The letter outlined Shuler’s medical condition and treatment, which included neck surgery, and enclosed bills totaling over $71,000. To settle the claim, the letter required that within twenty days Liberty Mutual must tender the $10,000 policy limits, furnish an affidavit by McClelland stating that she had no other available insurance, and give proof that McClelland was not acting in the course and scope of her employment at the time of the accident. The letter stated that settlement of the claim would only release McClelland, the owner of the automobile if different, and the insurance company.

Liberty Mutual received the letter on February 17 but misplaced it. By February 28, it had the letter in hand and decided to settle the case even without the medical authorizations. Liberty Mutual did not notify McClelland of the offer for settlement, nor did it ask her about other insurance or whether she was working at the time of the accident. On March 3, the twentieth day after the settlement demand, Liberty Mutual issued a check for $10,000. It sent the check to Shuler’s attorney and enclosed a copy of its standard release form. It did not obtain either an affidavit from McClelland regarding other insurance or proof regarding her employment at the time of the accident. It did not indicate, by a cover letter or otherwise, why it had failed to comply with those conditions or whether it intended to do so. Soon thereafter, Shuler’s attorney returned the check and rescinded the settlement offer based on Liberty Mutual’s failure to timely accept it. Shuler and his wife then filed suit against McClelland.

Liberty Mutual represented McClelland in the suit and contended that a settlement had been reached when the check was mailed. The trial court disagreed, finding that there had been no meeting of the minds because Liberty Mutual had failed to comply with the other terms of the offer. After a jury verdict for the Shulers of $96,735 and a costs judgment of $4606, the issue of a settlement was raised unsuccessfully on appeal. See McClelland v. Shuler, 826 So.2d 299 (Fla. 2d DCA 2002) (table decision) (affirming judgment). McClelland later declared bankruptcy, and the bankruptcy trustee filed suit against Liberty Mutual alleging common law bad faith.

On appeal, we review a summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). When seeking summary judgment, Liberty Mutual was obliged to conclusively demonstrate on the record that there were no genuine issues of material fact and that it was entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510(c). Although the facts are largely undisputed in this case, the facts do not conclusively demonstrate that Liberty Mutual is entitled to prevail.

A common law bad faith claim against an insurance company seeks to redress an insurer’s breach of its fiduciary obligation to its insured. When defending its insured against a claim, the insurer is duty-bound “to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business.” Berges v. Infinity Ins. Co., 896 So.2d 665, 668 (Fla.2004) (quoting Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)). The insurer must investigate the facts, give fair consideration to a settlement offer that is not unreasonable, and settle the claim, if possible, where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980). “[Njegligence is relevant to the question of good faith.” Id.

The question of failure to act in good faith with due regard for the interests of the insured is a jury question. Id. Considerations of reasonable diligence and ordinary care, traditional issues of fact, are material. Campbell v. Gov’t Employees Ins. Co., 306 So.2d 525, 530-31 (Fla.1974).

Here, Liberty Mutual accepted that McClelland was responsible for the accident as early as the next day, and it recognized the potential for an excess judgment about four months later. When an offer to settle came, approximately eight months after the accident, Liberty Mutual misplaced the offer letter. Then, when purporting to accept the settlement offer, it simply ignored some of its conditions without explanation. Indeed, Liberty Mutual did not inquire of McClelland regarding additional insurance or her employment, or even inform her of the settlement offer, until after the Shulers had filed suit against her. Given these facts, it cannot be said as a matter of law that Liberty Mutual fulfilled its duty to use the same degree of care and diligence as a person of ordinary care and prudence should exercise in the management of his own business. See Berges, 896 So.2d at 668. Accordingly, we reverse the summary judgment and remand for further proceedings.

Reversed and remanded.

WHATLEY, J., and MENENDEZ, MANUEL, JR., Associate Judge, Concur.

      . The parties dispute whether a release form was included with the offer letter.

      . Liberty Mutual could not say whether the check and release were actually mailed on March 3.


author: KELLY, Judge.

text:
    D.L.J., Appellant, v. STATE of Florida, Appellee.
    No. 2D05-673.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appel-lee.
   KELLY, Judge.

D.L.J. appeals from the order adjudicating him guilty of carrying a concealed firearm. He argues that the police did not have probable cause to conduct a pat-down search for weapons, and therefore the trial court erred when it denied his motion to suppress. We agree.

The record shows that the St. Peters-burg police received a complaint that someone was throwing rocks at a vacant house. The caller did not provide any further information other than the address of the house where the rock throwing was occurring. Officers Arkovich and Payton went to the address given by the caller. When they arrived, they saw two juveniles running westbound from the back of the house and several others on the northwest corner of the property. Officer Arkovich chased the two juveniles who had taken flight. Officer Payton approached the juveniles who had not run; D.L.J. was among those. Officer Payton patted down D.L.J. and found a loaded magazine in his left front jean pocket. He asked where the gun was, and D.L.J. responded that it was in his left front shoe. The officers arrested D.L.J. and charged him with carrying a concealed weapon.

D.L.J. moved to suppress the evidence arguing that the seizure of the magazine and the gun violated section 901.151(5), Florida Statutes (2004), and the constitutions of the United States and Florida. Section 901.151(1), Florida’s stop and frisk statute, provides that a pat-down can be conducted during a valid detention if the police have probable cause to believe that the detained person is “armed with a dangerous weapon.” § 901.151(5), Fla. Stat. (2004). The supreme court has interpreted the term “probable cause” in this statute to mean “reasonable belief.” See State v. Webb, 398 So.2d 820, 825 (Fla.1981); Sutton v. State, 698 So.2d 1321, 1323 (Fla. 2d DCA 1997). The officer must be able to articulate some basis which would support a reasonable belief that an individual is armed. Sutton, 698 So.2d at 1323.

At the suppression hearing, Officer Pay-ton, who conducted the pat-down, did not testify. Officer Arkovich testified, but he was not present when Officer Payton performed the pat-down, and he did not know why Officer Payton decided to pat down D.L.J. The State essentially conceded that the pat-down was not legal, stating that “[t]he State is not arguing per se on the legality of the pat down.” Instead it argued that the police lawfully obtained the gun by asking D.L.J. about the gun’s location and obtaining the weapon after D.L.J. told them it was in his shoe. The State contended that the officers had a right to stop D.L.J. or, alternatively, that it was a consensual encounter. The trial court properly rejected this argument, finding that if the pat-down was not proper, then the gun was the “fruit of a poisonous tree” and should be suppressed. Nevertheless, the trial court denied the motion after concluding that the pat-down was proper. The court based its conclusion on the facts that D.L.J. was present at the address where the rock throwing was reported, that other individuals at that address ran away when the police arrived, and D.L.J. was wearing baggy pants that made it “hard to see any kind of bulge or anything.”

While the trial court’s findings accurately reflect the circumstances surrounding the pat-down, its conclusion that the pat-down was proper is erroneous because the State offered no testimony from the officers indicating that because of these circumstances, they believed that D.L.J. was armed. On the contrary, Officer Arkovich testified that by the time he went to where D.L.J. was, Officer Payton was already conducting the pat-down. He assumed it was for officer safety reasons, and he “didn’t know what they had on them at all.” He also testified that they had no information that D.L.J. might be armed, “but we can’t assume.” At best, this testimony established that Officer Payton assumed that Officer Arkovich was conducting a routine pat-down for officer safety as opposed to a pat-down based on a reasonable belief that D.L.J. was armed. “Pat-down searches performed routinely or for safety purposes only are constitutionally impermissible.” Hunt v. State, 700 So.2d 94, 95 (Fla. 2d DCA 1997); cf., D.O. v. State, 832 So.2d 256, 257 (Fla. 2d DCA 2002).

In this appeal, the State argues that the stop was justified under Illinois v. Wardlow, 528 U.S. 119, 120 S.Ct. 673, 145 L.Ed.2d 570 (2000), and that therefore the officers were entitled to conduct the pat-down. We need not decide if the stop was valid because even if it was, a valid stop does not necessarily give officers the right to search an individual for weapons. Webb, 398 So.2d at 822; Sutton, 698 So.2d at 1323; Hamilton v. State, 612 So.2d 716, 718 (Fla. 2d DCA 1993); Harris v. State, 574 So.2d 243, 244 (Fla. 1st DCA 1991). Under the circumstances, the motion to suppress should have been granted. Accordingly, we reverse and remand with directions that D.L.J. be discharged.

Reversed and remanded.

FULMER, C.J., and DAVIS, J., Concur.

      . Section 901.151(5) provides:
      Whenever any law enforcement officer authorized to detain temporarily any person under the provisions of subsection (2) has probable cause to believe that any person whom the officer has temporarily detained, or is about to detain temporarily, is armed with a dangerous weapon and therefore offers a threat to the safely of the officer or any other person, the officer may search such person so temporarily detained only to the extent necessary to disclose, and for the purpose of disclosing, the presence of such weapon. If such a search discloses such a weapon or any evidence of a criminal offense it may be seized.

      . We do not intend to suggest that had an officer testified that these circumstances caused him to believe that D.L.J. was armed that we would agree the officer's belief was reasonable. See, e.g., Bradford v. State, 567 So.2d 911 (Fla. 1st DCA 1990) (holding that the officer did not have a reasonable suspicion to support his pat-down search of the defendant based only on the defendant’s wearing a loose jacket).


author: ALTENBERND, Judge. VILLANTI, Judge,

text:
    John Matthew WALENTUKONIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2268.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

John Walentukonis appeals an order imposing restitution of $3875 for damage he caused to an inoperable 1991 Dodge pickup truck. Because the State was unprepared to present adequate evidence about the value of this truck at the restitution hearing, the trial court determined the value of the truck in part by taking judicial notice, sua sponte, of “the NADA Blue Book Average Retail Value.” Although we understand the trial court’s desire to streamline the process of setting restitution in this case, we must reverse and remand for further proceedings.

Pursuant to section 90.202(12), Florida Statutes (2004), a trial court may take judicial notice of “[f]acts that are not subject to dispute because they are capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.” Section 90.204(1), Florida Statutes (2004), provides: “When a court determines upon its own motion that judicial notice of a matter should be taken ... the court shall afford each party reasonable opportunity to present information relevant to the propriety of taking judicial notice and to the nature of the matter noticed.” Section 90.204(3) also provides that if a court takes judicial notice by resort to a documentary source of information not received in open court, “the court shall make the information and its source a part of the record in the action and shall afford each party reasonable opportunity to challenge such information.”

Here, the court did not follow the procedure required by section 90.204. The specific information upon which the trial court relied is not in our record. Indeed, there appears to be no “NADA Blue Book.” Instead, there are two separate books regarding the value of used vehicles: the “NADA Official Used Car Guide” or the “Kelley Blue Book.” Although new editions of these guides are published periodically and their content is generally available on the internet, there is no indication what printed edition the trial court reviewed or if it resorted to the internet sources. Further, these guides provide values based upon certain variables regarding the vehicles listed. This vehicle was described at the restitution hearing simply as a 1991 Dodge pick-up truck that was missing its motor and transmission; no model number was provided nor was there an indication of the mileage of the vehicle or the condition of its remaining frame. The order granting restitution does not indicate the assumptions the trial judge made in selecting the value for this vehicle from the guide.

The value of an individual vehicle— and particularly the vehicle in this case — is not something that is “not subject to dispute” based upon resort to sources such as a used car value guide. Even if used car guides could be classified as “sources whose accuracy cannot be questioned”— and we by no means imply that they can be classified as such — the value of a vehicle may vary substantially based upon numerous facts that may or may not be reflected in such guides. Because the trial court erred in taking judicial notice of a used car guide to determine the amount of restitution, we reverse the order and remand for further proceedings.

Reversed and remanded.

STRINGER, J., Concurs.

VILLANTI, J., Concurs specially with opinion.

VILLANTI, Judge,

Concurring specially.

I fully concur in the result but write to set forth a few suggestions on how to “streamline the process of setting restitution.” Because the criminal justice system focuses its resources on apprehension and punishment, the mechanics of establishing and collecting restitution is often overlooked until sentencing and sometimes then addressed only as an afterthought. I suggest that if restitution issues were considered more thoroughly at the outset, and certainly before sentencing, the restitution process would be more efficient and effective. Here’s how.

The prosecution could and should obtain restitution information and supporting documents as soon as possible — ideally at the intake interview. Often, the victim obtains documentary evidence during the process of repairing or replacing the stolen or damaged items. Or, the victim may receive only verbal quotes, believing this will be enough to establish his or her loss. Frequently, none of this information is provided to the State, unless value is an element of the crime, until minutes before sentencing. This is unfortunate because as the majority opinion shows, the State is then unprepared to present adequate evidence. The process would be significantly improved if the State collected the necessary information and provided it to the defense in a timely manner. As this case demonstrates, judicial notice cannot always be relied upon to save the day.

Reserving jurisdiction to determine restitution after sentencing, while advisable or necessary in complicated cases, does little to streamline the process. Trial judges may want to consider postponing sentencing until after any restitution discovery is completed or the parties stipulate to an amount. Without proper preparation, a restitution hearing frequently dissolves into a “discovery deposition” which not only tries the judge’s patience but requires court time to a degree generally not allowed when restitution is addressed at sentencing.

Early consideration of restitution is also more effective because it capitalizes on the fact that parties are more motivated to reach a comprehensive agreement as to restitution before sentencing, rather than afterwards. This requires the State to prepare the victim ahead of time as to a legally recoverable amount. Ironically, even in cases where restitution is set as a lien, the parties often spend inordinate time debating amounts and evidentiary bases. In probationary cases, it is important to establish a realistic repayment schedule that addresses the probationer’s ability to pay so that the victim knows how and when and if he or she will be “made whole.” Side benefits of these early efforts will be fewer probation violations based on failure to pay restitution and greater victim understanding and acceptance of the criminal justice system’s limitations. Because restitution is often the only visible means by which a victim obtains justice, it should not be treated as an afterthought.


author: SILBERMAN, Judge.

text:
    Miguel HERRERA-LARA, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2472.
    District Court of Appeal of Florida, Second District.
    June 16, 2006.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Amanda Lea Colon, Assistant Attorney General, Tampa, for Ap-pellee.
   SILBERMAN, Judge.

Miguel Herrera-Lara appeals a judgment withholding adjudication of guilt and an order imposing a fine and costs for possession of a counterfeit registration license plate pursuant to section 320.26(l)(a), Florida Statutes (2004). Because Herrera-Lara’s conduct did not constitute a violation of section 820.26(l)(a), we reverse.

The State charged Herrera-Lara with possessing a counterfeit registration license plate in violation of section 320.26(l)(a). Herrera-Lara filed a motion to dismiss, admitting that he was in possession of a counterfeit temporary tag but asserting that possession of a counterfeit temporary tag does not violate section 320.26(l)(a). He argued that a temporary tag is different from a registration license plate and that because the term “temporary tag” is not identified in the list of counterfeit items contained in section 320.26, the statute does not apply to his conduct. Instead, temporary tags are addressed in section 320.131, which describes unlawful conduct relating to temporary tags, including the knowing and willful abuse or misuse of temporary tags. He asserted that because possession of a counterfeit temporary tag is not a violation of section 320.26(l)(a), he was entitled to dismissal of the charge. We agree.

Section 320.26(l)(a) states in pertinent part that “[n]o person shall counterfeit registration license plates, validation stickers, or mobile home stickers, or have in his or her possession any such plates or stickers.” (Emphasis added.) Section 320.26(2) punishes a violation of subsection (l)(a) as a third-degree felony. Registration license plates are specifically described in chapter 320. Section 320.06(l)(a) provides the following:

Upon the receipt of an initial application for registration and payment of the appropriate license tax and other fees required by law, the department shall assign to the motor vehicle a registration license number consisting of letters and numerals or numerals and issue to the owner or lessee a certificate of registration and one registration license plate, unless two plates are required for display by s. 320.0706, for each vehicle so registered.

Section 320.06(3)(a) provides that “[r]eg-istration license plates shall be of metal specially treated with a retrorefleetive material, as specified by the department. The registration license plate is designed to increase nighttime visibility and legibility.” Further, “[t]he registration license plate shall be imprinted with a combination of bold letters and numerals or numerals, not to exceed seven digits, to identify the registration license plate number.” Id. Subject to certain exceptions, a registration license plate is to “be imprinted with the word ‘Florida’ at the top and the name of the county in which it is sold at the bottom.” Id. Section 320.06 also specifies that registration license plates are valid for periods ranging from one to five years and that, with each plate, validation stiek-ers are to be issued and placed on the registration license plate. See § 820.06(l)(b), (c).

Section 320.131 is titled “Temporary Tags” and addresses the issuance of temporary tags. It provides in pertinent part as follows:

(1) The department is authorized and empowered to design, issue, and regulate the use of temporary tags to be designated “temporary tags” for use in the following cases:
(k) In any case where a permanent license plate cannot legally be issued to an applicant and a temporary license plate is not specifically authorized under the provisions of this section, the department shall have the discretion to issue or authorize agents or Florida licensed dealers to issue temporary license plates to applicants demonstrating a need for such temporary use.

Section 320.131(4) provides the following:

Temporary tags shall be conspicuously displayed in the rear license plate bracket or attached to the inside of the rear window in an upright position so as to be clearly visible from the rear of the vehicle. On vehicles requiring front display of license plates, temporary tags shall be displayed on the front of the vehicle in the location where the metal license plate would normally be displayed.

Section 320.131(3) states that the unlawful issuance or use of a temporary tag constitutes a misdemeanor of the second degree. Section 320.131(5) provides that the knowing and willful abuse or misuse of “temporary tag issuance to avoid registering a vehicle” constitutes a misdemeanor of the first degree. Section 320.131(6) states that “[a]ny person who knowingly and willfully issues a temporary tag or causes another to issue a temporary tag to a fictitious person or entity to avoid disclosure of the true owner of a vehicle commits a felony of the third degree.”

Temporary tags are valid for periods ranging from ten to ninety days. See § 320.131(1)(f), (j), and (2). Section 320.131 makes no mention of validation stickers. Although not addressed by the parties, we note that subsections 320.131(l)(k) and (8) also use the term “temporary license plate” and its plural, “temporary license plates.” As with temporary tags, these terms are not specifically defined, but in context, it is apparent that such “plates” are for temporary, short-term use as compared to the long-term use contemplated in connection with registration license plates.

The State does not dispute that the item giving rise to the charge at issue here is a photocopy of a temporary tag. But the State argues that temporary tags are license plates and thus fall within the counterfeiting prohibition contained within section 320.26(l)(a). The State further argues that while section 320.131 addresses the abuse or misuse of actual temporary tags, it is not directed to the act of counterfeiting a temporary tag or possessing a counterfeit temporary tag. Because Herrera-Lara specifically admitted that he was in possession of a counterfeit temporary tag, the State argues that section 320.131 would not apply to Herrera-Lara’s conduct and that section 320.26(l)(a) would apply.

Based upon our review of chapter 320, it appears the legislature intended the term “registration license plates” to refer to the more permanent plate issued upon the registration of a motor vehicle. As discussed previously, “registration license plates” are described as being made of metal with imprinted letters and numerals or only numerals, bearing validation stickers, and being issued for periods of one year or more. See § 320.06(l)(b), (c), (3)(a). By contrast, temporary tags are valid for much shorter periods of time and bear no validation stickers. See § 320.131(1)(f), CD, and (2). Temporary tags may be displayed in the rear window or in the rear license bracket, and where a front display is required, they must be displayed “where the metal license plate would normally be displayed.” See § 320.131(4). Thus, the legislature recognized a distinction between “registration license plates” and “temporary tags.” Further, although the legislature also used the term “temporary license plate” and its plural in section 320.131, nothing in that section or in sections 320.06 or 320.26 suggests that temporary license plates are the equivalent of the more permanent registration license plates.

The legislature specifically used the term “registration license plates” when it drafted the counterfeiting statute, section 320.26, and did not list the terms “temporary tags” or “temporary license plates” in that statute. Registration license plates have a specific description, use, and meaning in the statutory scheme that differs from the description, use, and meaning that applies to temporary tags or temporary license plates. “Legislative intent must be determined primarily from the language of the statute. The legislature is assumed to know the meaning of the words in the statute and to have expressed its intent by the use of those words.” Overstreet v. State, 629 So.2d 125, 126 (Fla.1993). Because the legislature did not include the terms “temporary tags” or “temporary license plates” in section 320.26, we must assume the legislature did not intend for section 320.26 to apply to those items. See Thayer v. State, 335 So.2d 815, 817 (Fla.1976) (noting “general principle of statutory construction that the mention of one thing implies the exclusion of another; expressio unius est exclusio alterius”); see also McFadden v. State, 737 So.2d 1073, 1075 (Fla.1999) (quoting Thayer for the foregoing proposition).

We also note Herrera-Lara’s argument that to the extent there may be any ambiguity as to whether section 320.26(l)(a) is intended to address counterfeit temporary tags, that ambiguity must be construed in Herrera-Lara’s favor. We agree. See Overstreet, 629 So.2d at 125 (noting that “penal statutes are to be strictly construed in a manner most favorable to the accused”); see also Deason v. Fla. Dep’t of Corr., 705 So.2d 1374, 1375 (Fla.1998) (acknowledging “the legal maxim that ambiguity in penal statutes should generally be resolved in favor of the defendant”).

In light of the statutory scheme contained in chapter 320, we conclude that the legislature assigned different meanings to the terms “registration license plates” on the one hand and “temporary tags” or “temporary license plates” on the other hand. Accordingly, section 320.26, which specifically refers to counterfeit registration license plates, does not apply to Herrera-Lara’s possession of a counterfeit temporary tag. Because Herrera-Lara’s conduct did not constitute a violation of section 320.26(l)(a), the trial court should have granted his motion to dismiss. Therefore, we reverse the judgment and the order imposing a fine and costs and remand for the trial court to enter an order of dismissal.

Reversed and remanded.

CASANUEYA and KELLY, JJ., Concur.

      . The trial court also entered a judgment adjudicating Herrera-Lara guilty of operating a motor vehicle without a valid registration. Herrera-Lara does not challenge that judgment.