author: WEBSTER, J.

text:
    Ed CRAPO, as Property Appraiser of Alachua County, Florida, Appellant, v. HCA, INC., a Delaware corporation, Appellee.
    No. 1D06-5640.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Rehearing Denied Nov. 20, 2007.
    Sherri L. Johnson and R. Laine Wilson of Dent & Johnson, Chartered, Sarasota, for Appellant.
    Robert E.V. Kelley, Jr., Patrick J. Risch and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Appellee.
    Jeffrey M. Clyman, Palm Beach County Property Appraiser’s Office, West Palm Beach, for Amicus Curiae Gary R. Nikol-its, as Property Appraiser for Palm Beach County.
   WEBSTER, J.

Appellant, the property appraiser of Alachua County, seeks review of an order dismissing with prejudice his complaint for a subpoena duces tecum compelling appel-lee to produce financial records relating to appellee’s tangible personal property in Alachua County. Because we conclude that the complaint stated a cause of action for a subpoena duces tecum pursuant to section 195.027(3), Florida Statutes (2006), and Florida Administrative Code Rule 12D-1.005, we reverse and remand for further proceedings.

In June 2006, appellant filed a “Complaint for Subpoena Duces Tecum” which alleged that appellee declined appellant’s written request to produce documents which were necessary for appellant to accurately determine the value of appellee’s property as of January 1, 2006. Appellant requested that the court issue a writ of subpoena duces tecum directing appellee to produce the requested documents pursuant to Florida Administrative Code Rule 12D-1.005.

Appellee filed a motion to dismiss the complaint on the grounds that (1) the court was without subject matter jurisdiction because no applicable authority allowed appellant to seek a subpoena duces tecum and (2) appellant’s action, in effect, was for a pure bill of discovery, which was not appropriate under the circumstances. As to the first ground, the motion claimed that rule 12D-1.005 was an invalid exercise of delegated legislative authority insofar as it enlarged or modified section 195.027(3), Florida Statutes, which provided no authority for a property appraiser to seek or obtain a subpoena, and unconstitutionally attempted to confer jurisdiction on the circuit court. The motion further cited Florida case law for the proposition that a taxpayer had no statutory obligation to comply with a property appraiser’s request for financial records. As to the second ground, the motion claimed that a pure bill of discovery was not appropriate because appellant was not seeking information to aid “the prosecution or defense of an action pending or about to be commenced in some other court.”

The trial court granted appellee’s motion and dismissed the complaint with prejudice upon finding that (1) neither rule 12D-1.005 nor section 195.027 conferred subject matter jurisdiction upon the court to issue a subpoena for the requested financial records and (2) the court did not have subject matter jurisdiction in equity where the complaint appeared to have been brought as a “type of investigatory tool.” This appeal follows.

The real issue in this case is not whether the circuit court had subject matter jurisdiction, because it is clear that it did have subject matter jurisdiction over appellant’s action to compel the production of financial records necessary to determine the value of appellee’s nonhomestead property for taxation purposes. See § 194.171(1), Fla. Stat. (2006) (providing that the circuit courts shall “have original jurisdiction at law of all matters relating to property taxation”); § 26.012(2)(c) & (3), Fla. Stat. (2006) (providing that the circuit courts “shall have exclusive original jurisdiction ... [i]n all cases in equity” and “may issue injunctions”); Sirgany Int'l Inc. v. Miami-Dade County, 887 So.2d 381 (Fla. 3d DCA 2004) (holding that the circuit court had exclusive original jurisdiction over an action by the county inspector general seeking equitable, injunctive relief enforcing his subpoena for certain corporate records). The real issue is whether appellant was entitled to seek a subpoena pursuant to section 195.027(3) and rule 12D-1.005.

Section 195.027(3) allows the property appraiser to seek the pre-assessment or post-assessment production of financial records when “it is determined that such records are necessary to determine either the classification or the valuation of taxable nonhomestead property.” Bystrom v. Whitman, 488 So.2d 520, 522 (Fla.1986). Prior to this provision’s adoption in 1973, the property appraiser was without authority to obtain a property owner’s financial records because property owners were not required to reveal such records. See Ch. 73-172, § 2, at 333, Laws of Fla.; Palm Corp. v. Homer, 261 So.2d 822, 823 (Fla.1972); Whitman v. Bystrom, 464 So.2d 182, 184 (Fla. 3d DCA 1985), quashed on other grounds, 488 So.2d 520 (Fla.1986). Pursuant to rule-making authority granted by section 195.027(3), the Department of Revenue adopted rule 12D-1.005 governing access to financial records which, among other things, authorizes the property appraiser to seek a subpoena duces tecum in circuit court if a taxpayer refuses a written demand for production of the records. See Fla. Admin. Code R. 12D-1.005(2)(d) (“In the event the taxpayer shall refuse, after written demand, to make production of the books and records requested, the requesting agency shall have the right to proceed with an original action in the Circuit Court for an application to the court for a subpoena duces tecum and production of the records in question”).

In his complaint, appellant alleged that appellee refused a written demand to produce financial records which were necessary for appellant to accurately determine the value of appellee’s property as of January 1, 2006. This was sufficient to state a cause of action for a subpoena duces tecum pursuant to section' 195.027(3) and rule 12D-1.005(2)(d). To the extent appellee argues that the financial records were not necessary for appellant to accurately determine the value of appellee’s property, such a contention is not properly raised in a motion to dismiss because the trial court must confine itself to the four corners of the complaint, accept the allegations of the complaint as true, and resolve all inferences in the plaintiffs favor. Gowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999).

Accordingly, we reverse the trial court s order dismissing appellant’s complaint seeking a subpoena duces tecum pursuant to rule 12D-1.005(2)(d) and remand for further proceedings. Although appellee maintained below that rule 12D-1.005 was an invalid exercise of delegated legislative authority insofar as it enlarged or modified section 195.027(3), we do not address that argument here because appellee has not pursued it on appeal.

REVERSED and REMANDED, with directions.

HAWKES and ROBERTS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Jose P. MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-4158.
    District Court of Appeal of Florida, First District.
    Oct. 10, 2007.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Tanzi v. State, 964 So.2d 106 (Fla.2007) (“Because the.trial court’s findings are supported by competent, substantial evidence in the record, we find that the trial court did not abuse its discretion in denying [defendant’s] motion to withdraw his plea.”).

KAHN, PADOVANO, and HAWKE'S, JJ., concur.


text:
    Vincent A. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2663.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2007.
    Vincent A. Brooks, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

BROWNING, C.J., BARFIELD and BENTON, JJ., concur.


author: HAWKES, J.

text:
    Robert A. GAITHER, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-4516.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Rehearing Denied Nov. 20, 2007.

      Robert A. Gaither, pro se, Appellant.
    Beverly Brewster, Assistant General Counsel, Department of Corrections, Tallahassee, for Appellee.
   HAWKES, J.

Appellant challenges the circuit court’s imposition of a lien on his inmate trust account for costs incurred in filing a petition for writ of mandamus. The petition for writ of mandamus challenged the amount of gain-time the Department of Corrections awarded. As the State correctly concedes, Appellant’s challenge directly affected the time he would spend in prison. Consequently, this is a collateral criminal proceeding for which a lien is improper. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003).

However, Appellant raised the issue in the circuit court by filing a “Petition to Reopen Collateral Criminal Proceeding” seven months after the court entered its order denying Appellant’s petition. This court has held that, for a lien challenge to be preserved for appeal, the issue must be properly and timely raised in the circuit court. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007); Parker v. McDonough, 958 So.2d 1108 (Fla. 1st DCA 2007); Norman v. Fla. Parole Comm’n, 957 So.2d 697 (Fla. 1st DCA 2007).

Because the circuit court proceeding sought review of quasi-judicial action by a lower tribunal (i.e., the Department of Corrections), it was governed by the Florida Rules’ of Appellate Procedure. See Wilkinson v. McDonough, 960 So.2d 911 (Fla. 1st DCA 2007). Appellant’s recourse was to file a motion for rehearing or clarification pursuant to Florida Rule of Appellate Procedure 9.330. Treating Appellant’s petition’as having been filed according to that rule, it was untimely. Consequently, this court lacks jurisdiction to address the appeal on its merits. The appeal is hereby DISMISSED.

KAHN and PADOVANO, JJ., concur.


text:
    Melvin B. THOMPSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4887.
    District Court of Appeal of Florida, First District.
    Oct. 17, 2007.
    Rehearing Denied Nov. 20, 2007.
    Melvin B. Thompson, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

KAHN, PADOVANO, and HAWKES, JJ., concur.


author: BENTON, J.

text:
    STATE of Florida, Petitioner, v. Bruce R. CLEMENTS, Respondent.
    No. 1D07-2867.
    District Court of Appeal of Florida, First District.
    Oct. 19, 2007.
    Rehearing Denied Dec. 7, 2007.
    Bill McCollum, Attorney General, and Terry P. Roberts, Assistant Attorney General, Tallahassee, for Petitioner.
    Mitchell A. Stone, Jacksonville, for Respondent.
   BENTON, J.

By petition for writ of certiorari, the State asks us to quash the circuit court’s decision reversing Bruce R. Clements’ conviction for driving while under the influence of alcohol to the extent that his “normal faculties [we]re impaired,” § 316.193(l)(a), Fla. Stat. (2006), and remanding for a new trial in county court. We deny the petition.

“Certiorari is not a vehicle to allow a second appeal.” Dep’t of Highway Safety & Motor Vehicles v. Pitts, 815 So.2d 738, 742 (Fla. 1st DCA 2002). A petition for writ of certiorari should not be granted unless the lower tribunal’s ruling constitutes a “departure from the essential requirements .of law” or “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 95-96 (Fla.1983). The circuit court’s reversal of the county court conviction here was neither.

Stopped by a police officer for speeding and shifting between two lanes of traffic, Mr. Clements acknowledged drinking four or five beers, attempted a series of field sobriety exercises, performed poorly, and was arrested. At the jail, he was informed of Florida’s Implied Consent Law and the consequences of refusing blood and breath tests, see § 316.1932, Fla. Stat. (2006), but declined to take either test. He was eventually charged with violating section 316.193(l)(a), Florida Statutes (2006) (prohibiting driving while “under the influence of alcoholic beverages ... when affected to the extent that the person’s normal faculties are impaired”).

During jury selection, counsel for the State told the venire that “the defendant has been charged with driving under the influence. In Florida there [are] two ways to prove that, essentially. Either someone can be proved to have an alcohol content of 0.08 or above, or you can prove that their normal faculties are impaired.” Later counsel for the State reiterated, again to the venire, that there are “two ways that we can prove driving under the influence in Florida; one is the 0.08 blood alcohol content, and the other is normal faculties are impaired.”

On proffer at trial, Mr. Clements testified that he drank four 16-ounce beers between 9:30 the night before his arrest and 1:15 that morning. The State’s evidence put the time of arrest between 1:45 and 2:00 a.m. The defense sought to adduce expert testimony that drinking four beers over a period of some four hours would not impair the “normal faculties” of an “average social drinker” weighing what Mr. Clements weighed. The proffered expert testimony used “the Widmark formula” to estimate that, at the time Mr. Clements was arrested, his blood-alcohol content fell within a range of 0.02 to 0.05 grams per 100 milliliters, and concluded that “there would be no significant impairment based upon the average social drinker.” Even though the defense made no request for any instruction on presumptions, the trial court excluded the proffered testimony, on the purported authority of State v. Miles, 775 So.2d 950 (Fla.2000), on grounds that it “would be irrelevant without instructing the jury as to the presumptions under Chapter 316.”

On appeal, the circuit court ruled that the defense should have been permitted to offer expert testimony tending to show that Mr. Clements was not impaired at the time of his arrest, even though he had consumed alcohol before getting behind the wheel; and reversed for a new trial. This was far from a departure from the essential requirements of law. It was, indeed, in conformity with the essential requirements of law. As the United States Supreme Court reminds us, “[f]ew rights are more fundamental than that of an accused to present witnesses in his own defense.” Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973). Relevant evidence that tends to establish reasonable doubt must ordinarily be admitted. See Rivera v. State, 561 So.2d 536, 539 (Fla.1990) (stating “where evidence tends in any way, even indirectly, to establish a reasonable doubt of defendant’s guilt, it is error to deny its admission”). Uncertainty regarding whether evidence tends to establish reasonable doubt should be resolved in favor of the defendant. See Vannier v. State, 714 So.2d 470, 472 (Fla. 4th DCA 1998) (“While the defense is bound by the same rules of evidence as the state, the question of what is relevant to show a reasonable doubt may present different considerations than the question of what is relevant to show the commission of the crime itself. If there is any possibility of a tendency of evidence to create a reasonable doubt, the rules of evidence are usually construed to allow for its admissibility.”). See also Washington v. State, 737 So.2d 1208 (Fla. 1st DCA 1999).

The petition for writ of certiorari is denied.

BROWNING, C.J., and BARFIELD, J., concur.

      . If Clements had taken a blood or breath test that revealed a blood-alcohol level of 0.08 grams per 100 milliliters or greater or a breath-alcohol level of 0.08 grams per 210 liters or greater, he could have been charged under section 316.193(l)(b) or (c), and the State would not have had to prove impairment by any other means. See § 316.193(l)(b) and (c), Fla. Stat. (2006). See also § 316.1934(2), Fla. Stat. (2006). The excluded expert testimony was consonant with these statutory presumptions, but did not rely on any of them.

      . The circuit court ruled in effect that the county court's reliance on State v. Miles, 775 So.2d 950 (Fla.2000) was misplaced. The trial judge had reasoned:

        State v. Miles, Chapter 316, makes it perfectly clear that before presumptions instructions may be given in any case, they must be founded upon or premised upon a breath or blood alcohol content based upon tests that were performed in substantial compliance with the rules of the Department of Law Enforcement under 316; that is, it has to be either a legal breath or a legal blood draw.
      The admissibility of a blood-alcohol test was not an issue in the present case, nor was the availability of any statutory presumption at issue.


text:
    Shaheed HAMILTON, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1778.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2007.
    Shaheed Hamilton, Fort Lauderdale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Sherwood v. State, 745 So.2d 378 (Fla. 4th DCA 1999).

FARMER, STEVENSON and MAY, JJ., concur.


text:
    Lester JOHNSON, Petitioner, v. STATE of Florida, Respondent.
    No. 4D07-2975.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 6, 2007.

      Lester Johnson, Okeechobee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Lester Johnson filed a petition for writ of prohibition, seeking to disqualify Circuit Court Judge Robert Makemson from continuing to preside over five lower tribunal cases: three criminal cases in which he is the defendant — L.T. case nos. 06-127, 06-462, and 06-488-and two civil cases in which he petitioned for writs of mandamus — L.T. case nos. 06-287 and 06-227. We find the petition is moot with respect to the two civil cases, and grant the petition as to the three criminal cases.

On June 8, 2007, Johnson served on Judge Makemson a motion for disqualification of judge, referencing all five L.T. case numbers. The motion concerned Judge Makemson’s actions in a hearing held on May 29, 2007. As there was no ruling on the motion for disqualification within the thirty-day period provided by Florida Rule of Judicial Administration 2.330(j), on July 11, 2007, Johnson served his motion for an order directing the clerk to reassign the cases.

Instead, in two of the lower tribunal criminal cases, Judge Makemson issued orders dated July 12, 2007, scheduling hearings for August 24. Johnson filed the instant pro se petition for writ of prohibition with this court on July 27, 2007.

Rule 2.330(j) of the Florida Rules of Judicial Administration provides:

The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.

The petition for writ of prohibition filed may be considered premature as the trial judge has not yet ruled on the motion for disqualification. See generally Kelly v. Scussel, 167 So.2d 870 (Fla.1964) (holding that, when trial court set hearing on suggestion of disqualification, district court erred in entering order of prohibition, prohibiting judge from proceeding further in the case other than to enter his order disqualifying himself, as it deprived trial judge of right to ascertain whether to disqualify himself); City of Hollywood v. Diamond On The Beach, Inc., 855 So.2d 87 (Fla. 4th DCA 2003) (where trial court denied motions for disqualification as procedurally insufficient without considering legal sufficiency, granting petition only to the extent of returning consolidated cases to the trial court to make determination of legal sufficiency in the first instance); Novartis Pharms. Corp. v. Camoto, 840 So.2d 410 (Fla. 4th DCA 2003) (where trial court dismissed as untimely a motion to disqualify which this court determined was timely, returning case to trial court to determine issue of legal sufficiency).

However, rule 2.330(j) entitled Johnson to a ruling within thirty days and, failing that, to an order directing the clerk to reassign the case. Compare Schisler v. State, 958 So.2d 503 (Fla. 3d DCA 2007) (granting a mandamus petition to direct the trial judge to quash his order denying a motion to disqualify the judge, where the judge did not rule within thirty days after service of the motion, even though the ruling was only one day late and petitioner’s counsel acquiesced in setting a hearing on the motion outside the thirty-day time frame); Harrison v. Johnson, 934 So.2d 563 (Fla. 1st DCA 2006) (stating that, to the extent a movant seeks to compel a ruling by the circuit court on his motion to reassign, mandamus is the proper remedy).

The state argues in its response that Johnson’s motion for disqualification was a nullity because Judge Makemson is a successor judge in Johnson’s cases, and, as such, he cannot be disqualified unless he rules that he is not -impartial in the case. See Fla. R. Jud. Admin. 2.330(g). However, rule 2.330(j) does not contain an exception for successor judges.

Accordingly, we treat the petition for writ of prohibition as a petition for writ of mandamus to compel the court to direct the clerk to reassign the cases, and grant it as it relates to the pending criminal cases. We dismiss the petition as it relates to the civil matters, which are now moot.

Dismissed as Moot in Part and Granted in Part. ,

POLEN, HAZOURI, and MAY, JJ., concur.

      . In L.T. case no. 06-287, the trial court entered a final order on December 8, 2006, dismissing Johnson’s complaint seeking a writ of mandamus, and an order denying his motion for rehearing on January 11, 2007. Johnson appealed the dismissal and this court affirmed per curiam on July 25, 2007. (Case no. 4D07-577) Thus, at the time he filed the motion for disqualification, this case no longer was pending. With respect to L.T. case no. 06-227, on September 10, 2007, Johnson supplied this court with a copy of Judge Mak-emson’s order dated August 28, 2007, reassigning the case to another judge. Thus, his efforts to disqualify Judge Makemson in this case too are now moot.

      . There are exceptions. See Tobkin v. State, 889 So.2d 120 (Fla. 4th DCA 2004) (holding that trial judge’s failure to rule on recusal motion within thirty days after it was filed did not require judge's automatic recusal, where court clerk’s office mistakenly failed to forward motion to judge, the movant had mailed judge’s copy of motion to wrong courthouse, and judge ruled on motion within six days after becoming aware of motion, and one day after receiving it); Chrispen v. State, No. 4D06-5009, 954 So.2d 1155 (Fla. 4th DCA Jan. 29, 2007) (denying prohibition petition, by unpublished order, stating “[bjecause the petitioner did not serve a copy of the motion for disqualification on the trial judge, the court’s order of denial was not untimely under Florida Rule of Judicial Administration 2.330(j)”). However, the state’s response did not indicate that the motion was not properly served on the judge or that for some reason he did not receive it.


text:
    Eric COMBEST, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-2757.
    District Court of Appeal of Florida, Fourth District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 6, 2007.
    Eric Combest, Holly Hill, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Spaulding v. State, 965 So.2d 350 (Fla. 4th DCA 2007).

SHAHOOD, C.J., GROSS and HAZOURI, JJ., concur.


text:
    William Clyde COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1332.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    William Clyde Collins, pro se, Petitioner.
    Bill McCollum, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is granted and the circuit court’s order denying as untimely petitioner’s motion for reduction or modification of -sentence made pursuant to Florida Rule of Criminal Procedure 3.800(c) is hereby quashed. See Bacchus v. State, 958 So.2d 1016 (Fla. 1st DCA 2007); Mathis v. State, 957 So.2d 692 (Fla. 1st DCA 2007). The cause is remanded to the circuit court with directions to dispose of petitioner’s motion on the merits.

PETITION GRANTED.

BARFIELD, WOLF, and HAWKES, JJ., concur.


text:
    Donald T. GLENN, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2605.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Donald T. Glenn, Jr., pro se, Petitioner.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Donald T. Glenn, Jr., is hereby afforded a belated appeal of the order denying motion for postconviction relief entered on December 22, 2006, in Santa Rosa County Circuit Court case number 04-0240-CFMA. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, with directions that it be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Warren La Dean WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4011.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Warren La Dean Williams, pro se, Petitioner.
    Bill McCollum, Attorney General; Heather Flanagan Ross and Thomas Wi-nokur, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the judgment and sentence rendered on February 26, 2007, in Okaloo-sa County Circuit Court case number 06-CF-2366-001. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). If petitioner qualifies for appointed counsel, the trial court shall appointed counsel to represent petitioner on appeal.

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    ISAAC Smith, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4092.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Isaac Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    David LOWE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5105.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2007.
    David Lowe, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


text:
    Andrew W. YOUNG, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections; Monica David, Chairperson, Florida Parole Commission; and Bill McCollum, Attorney General of Florida, Respondents.
    No. 1D07-5421.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2007.

      Andrew W. Young, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


text:
    Anthony SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5394.
    District Court of Appeal of Florida, First District.
    Nov. 7, 2007.
    Anthony Sanders, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is denied on the merits.

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


author: TAYLOR, J.

text:
    Willie PERRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2049.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   On Mandate from the Supreme Court of Florida

TAYLOR, J.

We reconsider on remand our opinion in Perry v. State, 846 So.2d 584 (Fla. 4th DCA 2003), which was quashed by the Florida Supreme Court following its decision in Tillman v. State, 934 So.2d 1263 (Fla.2006). In Tillman, the supreme court held that section 776.051(1), Florida Statutes, which prohibits the use of force to resist an arrest, regardless of the illegality of a law enforcement officer’s actions, applies only to arrest situations. The court further held that to convict a defendant of battery on a law enforcement officer and resisting an officer with violence for acts committed outside arrest scenarios, the state must prove that the officer was lawfully executing a legal duty.

The issue which the supreme court directed us to address in light of Tillman is whether a strip search performed by an intake booking deputy at the county jail is a part of the arrest process, such that the prohibition in section 776.051(1) against the use of force to resist an arrest applies in this case. In this case, appellant, who was convicted of resisting an officer with violence during an attempted strip search, argues that he was justified in using force to resist the strip search because it was not being lawfully performed. We agree with appellant that the strip search in this case, which deputies attempted at the jail during booking procedures after appellant’s arrest had concluded, was not a part of the arrest process and, further, was not lawfully performed. Because the state failed to prove that the deputies were lawfully executing a legal duty at the time of appellant’s forcible resistance to the search, the trial court erred in denying appellant’s motion for judgment of acquittal.

On September 17, 1998, Deputy Armando Enrique was working as a booking deputy in the central intake division of the main jail in Broward County. His job entailed screening new inmates and introducing them into the system. As part of the booking process, the deputy was required to search the inmates for weapons and contraband and fingerprint and photograph them. The type of search conducted, whether a pat-down or a strip search, depended upon the crime for which the inmate was arrested. An inmate who was arrested for a violent felony involving weapons or a narcotics offense was subject to a strip search. A strip search required the inmate to squat and pull his buttocks apart for inspection.

Appellant was arrested by a Hallandale Beach police officer for a narcotics offense and brought to the main jail. He was placed in the custody of the Broward Sheriffs office and turned over to Deputy Enrique for the booking process. Pursuant to the Broward Sheriffs general policy requiring a strip search for inmates charged with a felony drug offense, the deputy took appellant into the strip search room and ordered him to disrobe for a strip search. The sheriff was not present at that time and, according to Deputy Enrique, he did not need the authorization of anyone at the jail to perform the strip search on appellant.

Once inside the strip search room, appellant complied with Deputy Enrique’s orders to disrobe; but he refused to be searched. Appellant became very loud and verbally abusive, declaring that he would not allow his anal area to be inspected. When Deputy Anton responded to Deputy Enrique’s call for assistance, he saw appellant flailing his arms and yelling in a combative manner. Deputy Enrique grabbed appellant’s arm and appellant fell to the ground. Appellant became violent and started kicking his feet and throwing his hands up at the officers. He punched Deputy Enrique in the face and kicked Deputy Anton in both legs. Eventually, the officers were able to restrain appellant and place shackles on him.

Appellant was tried by jury for battery on a law enforcement officer and resisting an officer with violence. He was acquitted of the battery charge but convicted of resisting an officer with violence. As to the resisting charge, the information alleged that appellant obstructed or opposed Deputies Enrique and Anton, “in the lawful execution of a legal duty then being performed by the said officers, to wit: the detention of [defendant], by the said [defendant] offering or doing violence to the person of the said officers, to-wit: fighting with and striking [them].... ”

At the close of the state’s and the defense case, appellant moved for a judgment of acquittal on both charges, asserting that he could not be convicted of the charges because the strip search he allegedly resisted with violence was not performed in compliance with Florida law and thus the deputies were not lawfully executing their duties. The trial court denied his motion for judgment of acquittal. Appellant filed an appeal of his conviction and "sentence for resisting an officer with violence.

We affirmed appellant’s conviction and sentence for resisting an officer with violence. In so ruling, we relied upon section 776.051(1), Florida Statutes, which prohibits the use of force to resist an unlawful arrest, and disagreed with “appellant’s argument that the rule prohibiting the use of force against a known police officer is limited to an arrest situation.” Perry v. State, 846 So.2d at 587. We noted that courts have applied the prohibition against the use of violence against officers who conducted illegal stops, searches, and detentions. We cited, along with other cases, the fifth district’s decision in Tillman v. State, 807 So.2d 106, 109 (Fla. 5th DCA 2002). There the court held that a defendant was not justified in using violence to resist police officers even though the officers’ entry into the defendant’s residence and subsequent pat-down and detention of the defendant were unlawful. In this case, where the defendant was “already in custody, undergoing post-arrest procedures,” we reasoned that “the prohibition against violently resisting or opposing an officer would apply as well.” Perry, 846 So.2d at 588.

The defendant obtained' review in the Florida Supreme Court. The issue he presented wás whether the statutory prohibition against the use of force to resist an arrest applies apart from arrest scenarios. The supreme court held that if did not and quashed our decision, based upon its decision in Tillman v. State, 934 So.2d 1263 (Fla.2006). The court remanded Perry -for reconsideration, stating:

We must quash the Fourth District’s decision because it is contrary to our construction of section 776.051(1) in Tillman. The Fourth District relied on the Fifth District’s decision in Tillman, which we later quashed, for the proposition that the use of force against a known police officer extends to illegal stops, searches, and detentions. See Perry, 846 So.2d at 587. We expressly rejected this view in Tillman, and cannot permit the same erroneous interpretation of section 776.051(1). to stand here. However, we decline to decide whether an arrest under section 776.051(1) encompasses post-arrest intake procedures such as the strip search in this case. Neither the Fourth District in this case nor this Court in Tillman addressed this issue. This matter, as well as a separate jury instruction issue raised by Perry, are for the Fourth District to address in the first instance under the changed legal landscape of our decision in Tillman.

Perry v. State, 953 So.2d 459, 460 (Fla.2007).

Having received supplemental briefs from the parties, we now address these issues. First, we must decide whether the strip search performed at the jail during intake booking procedures was a part of the arrest process such that the statutory prohibition against the use of force to resist an illegal arrest applies in this case. If we determine that the strip search was not part of the arrest process, we must then decide whether the state presented sufficient proof to allow the jury to find that the deputies were acting “in the lawful execution of a legal duty” when appellant violently resisted their efforts to strip search him. We did not decide this issue before.

At trial, appellant’s defense to the charge of resisting an officer with violence was that he was justified in forcibly opposing the deputies’ unlawful attempts to strip search him. The state, relying on section 776.051(1), Florida Statutes, asserted that this was not a viable defense. Section 776.051(1) provides:

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

Tillman rejected the state’s position, holding that section 776.051(1), by its plain language, only forecloses the defense of justifiable use of force to a defendant who resists an illegal arrest by a law enforcement officer. 934 So.2d at 1269. It held that the defense is available to a defendant who forcibly resists illegal acts committed by a law enforcement officer outside an arrest scenario. Appellant contends that the strip search he resisted occurred outside an arrest scenario. According to appellant, the deputies did not commence the strip search until after his arrest had concluded and his pre-trial detention had begun.

As appellant points out in his supplementary brief, when an arrest occurs is well-defined, but “the law has failed to produce a definitive parameter for the moment at which the process of arrest ends and some other form of custody begins.” Albritten v. Dougherty County, Ga., 973 F.Supp. 1455, 1459 (M.D.Ga.1997). Tillman did not resolve this issue because the facts in that case involved an illegal detention, or events that preceded an arrest, rather than events that occurred during or after an arrest. Tillman explained that “[sjection 776.051(1) does not address the use of force to resist an officer when there are grounds for an arrest but no actual arrest is taking place.” 934 So.2d at 1270 (emphasis added). This suggests that when the process of arrest is over and is no longer taking place, the prohibition against the use of force to resist unlawful police action does not apply. The difficulty, of course, is determining when an arrest is over.

In J.H.M. v. State, 945 So.2d 642, 645 (Fla. 2d DCA 2006), the Second District considered the question posed here: “How did the Florida Supreme Court intend to define an ‘arrest’ in Tillman? ” In that case, where the police-citizen encounter began as an unlawful detention and escalated into an arrest situation, the court noted the difficulty in applying Tillman because “the distinction in Tillman between arrest and non-arrest cases may not be easily drawn in many common, real world situations.” Id. at 645. The court stated:

We are inclined to believe that the supreme court in Tillman may have intended to use the more formal and technical definition of “arrest” that is used for purposes such as speedy trial. As Justice Bell explained in his concurring opinion in Bulgin v. State, 912 So.2d 307 (Fla.2005):
It is uniformly held that an arrest, in the technical and restricted sense of the criminal law, is “the apprehension or taking into custody of an alleged offender, in order that he may be brought into the proper court to answer for a crime.” Cornelius, Search and Seizures, 2nd ed., Sec. 47. When used in this sense, an arrest involves the following elements: (1) A purpose or intention to effect an arrest under a real or pretended authority; (2) An actual or constructive seizure or detention of the person to be arrested by a person having present power to control the person arrested; (3) A communication by the arresting officer to the person whose arrest is sought, of an intention or purpose then and there to effect an arrest; and (4) An understanding by the person whose arrest is sought that it is the intention of the arresting officer then and there to arrest and detain him.
Id. at 313-14 (Bell, J., concurring); see also Melton v. State, 75 So.2d 291, 294 (Fla.1954).

Id. at 645-46.

We believe that the above concept of an arrest as “the apprehension or taking into custody of an alleged offender” does not extend to post-arrest intake procedures, such as booking. These events usually occur after the suspect has been securely placed in custody and turned over to the jailors. Although it is tempting to include post-arrest intake procedures within the ambit of section 776.051(1) to promote the public interest in protecting law enforcement officers from violence when performing their duties in detention facilities, we are constrained by the plain and unambiguous language of the statute. In construing statutes, we must first consider the plain meaning of the language used. Tillman, 934 So.2d at 1269. “When the language is unambiguous and conveys a clear and definite meaning, that meaning controls unless it leads to a result that is either unreasonable or clearly contrary to legislative intent.” Id. Further, because we are construing a statute that is penal and in derogation of the common law, which permitted reasonable force to resist an illegal arrest, we must strictly construe the statute in favor of the accused. See Tillman, 934 So.2d at 1269; McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998); Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991).

In enacting section 776.051(1), the legislature could have extended protection to law enforcement officers in other types of police-citizen encounters but decided to do so only in arrest situations. See Tillman, 934 So.2d at 1269-71. Apparently, its main concern was to prevent those who feel they have been wrongly accused from conducting their defense by physical battle when an arrest is attempted. See K.G. v. State, 338 So.2d 72, 74 (Fla. 3d DCA 1976). If this is what the legislature intended to deter, then the “arrest” line should be drawn at the point where the suspect is peaceably in custody. In most cases this will occur when the suspect has been handcuffed and placed in the back of the patrol car. See State v. Roy, 944 So.2d 403 (Fla. 3d DCA 2006) (analyzing the defendant’s felony charges for battery on a law enforcement officer and resisting an officer with violence under Tillman and concluding that the defendant’s resistance to being handcuffed and act of striking the officer while being placed in the patrol car occurred during an arrest); see also Grant v. State, 366 So.2d 843 (Fla. 1st DCA 1979) (holding that defendant could not be guilty of resisting arrest with violence where violence erupted well after he had peaceably been placed in the back seat of a patrol car).

We hold that .the prohibition against the use of force to resist an arrest under section 776.051(1) does not apply to post-arrest intake procedures such as the strip search in this case. Here, it is undisputed that appellant was arrested by city police officers, then transported to the county jail and turned over to the custody of the Sheriffs Office for processing. The arresting officers did not remain on the scene, and some period, of time passed between the time the officers deposited appellant at the jail and the deputies initiated the booking process and attempted to strip search appellant. Under these facts and circumstances, the process of arrest had clearly ended and appellant’s detention had begun.

Thus, to convict appellant for resisting an officer with violence, the state had to prove that Deputies Enrique and Anton were acting “in the lawful execution of a legal duty” when they attempted to strip search appellant. See Tillman, 934 So.2d at 1266 (holding that “[i]n non-arrest cases, in order to convict a defendant under sections 784.07 and 843.01, Florida Statutes (2005), which define the crimes of battery on a law enforcement officer and resisting an officer with violence, the State must prove that the officer was ‘engaged in the lawful performance of his or her duties’ or ‘in the lawful execution of any legal duty.’ ”) (footnote omitted).

The supreme court explained in Tillman that “[i]n ruling on the sufficiency of the evidence to reach the jury on this element ... trial courts should rely on the statutory and decisional law governing the particular duty in which the officer is engaged.” Id. Because appellant’s violent resistance to Deputies Enrique and Anton occurred during their attempt to strip search appellant at the Broward main jail, we must evaluate the sufficiency of the evidence on the lawful execution element of the resisting charge by applying Florida law governing strip searches.

Section 901.211, Florida Statutes (1997), governs strip searches and “codifies minimum acceptable standards of conduct for law enforcement officers conducting strip searches in Florida.” D.F. v. State, 682 So.2d 149, 153 (Fla. 4th DCA 1996). Subsection (5) of the statute states:

No law enforcement officer shall order a strip search within the agency or facility without obtaining the written authorization of the supervising officer on duty.

§ 901.211(5), Fla. Stat. (1997). “A strip search conducted in violation of the statutory requirements set forth in section 901.211, in essence, establishes police misconduct and constitutes a Fourth Amendment violation.” State v. Augustine, 724 So.2d 580, 581 (Fla. 2d DCA 1998).

Here, the state failed to establish that the strip search was performed in compliance with Florida statutory and de-cisional law. The state failed to introduce any evidence that the on-duty supervising officer gave written authorization for the detention deputies to perform a strip search upon appellant. Deputy Enrique testified that the only authority he had to conduct the strip search was a written, general jail policy on such searches adopted by the elected Broward Sheriff. A policy or procedure adopted by the sheriff does not control over state law.

Because the state failed to prove that the deputies complied ’ with section 901.211(5), it failed to prove that they were acting “in the lawful execution of any legal duty” when they attempted to strip search appellant. The trial court thus erred in denying appellant’s motion for a judgment of acquittal. Accordingly, we reverse appellant’s conviction and sentence for resisting an officer with violence and remand with directions to discharge appellant.

Reversed and Remanded.

KLEIN and GROSS, JJ., concur.

      . In deciding Tillman, the supreme court resolved a conflict between the districts on this issue. The court quashed the fifth district’s decision in Tillman v. State, 807 So.2d 106 (Fla. 5th DCA 2002), and approved the first district’s holding in Taylor v. State, 740 So.2d 89 (Fla. 1st DCA 1999).

      . Our resolution of this issue renders the jury instruction issue raised by appellant moot.


author: GROSS, J.

text:
    William FUERY, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-1270.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   GROSS, J.

William Fuery appeals an order finding no probable cause to release him from his involuntary civil commitment under the Jimmy Ryce Act, §§ 894.910-394.932, Florida Statutes (2006). Finding that he met his burden of proof at the section 394.918(3) limited probable cause hearing, we reverse the trial court’s order and remand for a full trial held pursuant to section 394.918(4).

After being declared a sexually violent predator, Fuery was civilly committed under section 394.917(2). In March, 2007, the circuit court held a “limited hearing to determine whether there is probable cause to believe that [Fuery’s] condition ha[d] so changed that it is safe for [Fuery] to be at large and that [Fuery] will not engage in' acts of sexual violence if discharged.” See § 394.918(3).

The only evidence at the hearing was Fuery’s expert in forensic psychology, Natalie Novick Brown.Brown met with Fuery and spoke with his treating psychologist, Dean Cauley, and staff at the Florida Civil Commitment Center, where Fuery is confined., Brown also reviewed Fuery’s treatment records and annual report.

Brown testified that Cauley “was very positive in ... [h]is assessment of Mr. Fuery’s genuine commitment to treatment.” She noted that if Fuery was released to the community, Cauley agreed to continue treating him. Fuery’s co-residents expressed that Fuery’s “behavior on the compound away from the clinical [treatment] team ... [w]as 100% positive or virtually 100% positive.” Brown said that it was important to speak with these co-residents because “there are some sex offenders who are able to manipulate the impression that they’re giving to the clinical team, and it’s sometimes very difficult[] to detect when somebody is doing that.”

She further explained that since 2003, Fuery has “made very good progress” in his intensive treatment at the Civil Commitment Center. Fuery successfully passed polygraph examinations testing his willingness to fully disclose the details of prior acts of inappropriate sexual activity, which Brown indicated was necessary to avoid such behavior in the future. Brown also stated that Fuery had begun to display empathy for other people, an important quality because “if an individual can actually experience those victims’ feelings, they will not want to hurt them, they will not want to cause their victim to feel hurt or fear or pain or anything else.” Brown explained:

Fuery has developed a thorough understanding of all the irrational thoughts that he had that maintained his behavior and how those were wrong, and he’s been challenged in the group and he’s been challenging other sex offenders in the group with respect to these behaviors. He’s got it, essentially. He understands it. He knows when he’s engaging in it. He stops himself and he does that appropriately. I don’t see any deficit with regard to that. He’s not reverting back at all to those behaviors.

Brown was also impressed with Fuery’s “awareness” of sexual and emotional boundaries. She addressed Fuery’s “triggers” and how he has properly learned to cope with them. Brown “looked far and wide for any flaws in what [Fuery was] doing” and she “couldn’t find any.” She relayed that he had been four years in treatment and he had learned to control his inappropriate sexual thoughts.

With respect to relapse prevention, Brown testified that Fuery had a “relapse plan” involving his girlfriend and her family, but he also recognized the inappropriateness of relying on other people for his recovery for anything but initial assistance.

In sum, Brown opined as follows:

I feel that he’s made sufficient progress in treatment. It’s impossible to be 100 percent sure in terms of a crystal ball about what anybody’s going to do in the future, but he’s been practicing these techniques for four years now and there’s been no evidence of any flaw in his self control, his volitional or his emotional control and there’s been consistent positive result in terms of what he’s applied.
So he’s able to not only learn and repeat back the treatment components, but there’s evidence that he’s using those treatment components in his day-to-day life on the compound, which is full of lots of emotional and tangible problems and he’s coping well with those things and using the techniques and treatments, so he’s putting them into practice.

Brown explained that Fuery’s age was now within the range where authoritative studies had show recidivism declines dramatically. She noted that Fuery reached the highest stage of actual treatment that’s offered at the Civil Commitment Center.

The circuit court found that there was “no probable cause to believe that [Fuery’s] condition has so changed that it is safe for him to be released and that he will not engage in acts of sexual violence.” The court ordered him to remain confined.

The trial court erred in weighing the evidence rather than determining its legal sufficiency.

A judge’s review of the evidence in a section 394.918(3) limited probable cause hearing is similar to an evaluation conducted in response to a motion for directed verdict — the court must determine the sufficiency of the evidence presented, without weighing it and making credibility determinations. See In re Commitment of Allen, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006); Westerheide v. State, 888 So.2d 702, 706 (Fla. 5th DCA 2004);. “[I]f the committed person presents evidence supporting release at a limited probable cause hearing, the trial court considers only that evidence to determine probable cause; it does not weigh the evidence against any ... evidence presented by the State.” See Allen, 927 So.2d at 1074. To make the probable cause determination, the court must assume that the petitioner’s evidence is true, and then decide whether there is probable cause to believe that the petitioner’s condition has changed. Westerheide, 888 So.2d at 706. If the petitioner satisfies this burden of proof, then a full trial should be held under section 394.918(4). Allen, 927 So.2d at 1074.

Unlike the petitioners in Allen and Westerheide, Fuery presented testimony that satisfied his burden of proof to establish probable cause. Brown concluded that Fuery was ready for release. First, she opined that “he’s made sufficient progress in treatment.” Admitting that it is “impossible to be 100 percent sure in terms of a crystal ball,” she testified that “there’s been no evidence of any flaw in his self control, his volitional or his emotional control and there’s been consistent positive result in terms of what he’s applied.” When directly asked if Fuery was “safe to be at large” and “[would] not engage in acts of sexual violence if he’s discharged,” Brown replied, “in my opinion, [Fuery] no longer meets criteria, so there’s not a more likely than not chance that he will re-offend [because] he’s now on the other side in terms of risk and in terms of his ability to control his dynamics.”

We reverse the order finding no probable cause, and remand for a trial under section 394.918(4).

GUNTHER and WARNER, JJ., concur.

      . Fuery is 44 years old. According to Brown, "Past the age of 40 [recidivism] starts going down dramatically. Someone who’s in his 40’s — we know from research from a lot of people — that the recidivism risk is about 8.8 percent for someone in their 40’s. By their 50's it’s about 7.5 percent. In their 60's it’s down to 3 percent.”


author: LARUE, T., Associate Judge.

text:
    Samuel W. HEBENSTREIT, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2949.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.
    Robert Wesley, Public Defender, and Lisa L. Jama, Assistant Public Defender, Orlando, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   LARUE, T., Associate Judge.

Defendant Hebenstreit appeals a Circuit Court ruling below which denied a petition for writ of prohibition that Defendant had filed in the Circuit Court by which he sought to prevent the County Court from holding an evidentiary hearing. The basis of the denial was that the petition was moot inasmuch as the hearing had been held before a ruling was issued. On that narrow issue, we affirm.

Defendant was charged with DUI and a jury trial was held April 17, 2006. Initially, the jury returned a verdict of “not guilty”. The clerk published the verdict, and the trial judge entered a judgment of acquittal. As the judge was entering the acquittal, the bailiff told the judge that the jury foreperson had something to say. The judge nonetheless pronounced the acquittal and discharged Defendant. The judge then read the closing instructions to the jury, whereupon the assistant state attorney asked that the jury be polled. The judge denied the request and dismissed the jury.

After the jury was formally discharged, the judge met with them to discuss the trial, as was his usual practice. During that conference, he was informed that the foreperson of the jury had marked the wrong box, and that the intended verdict of the jury was “guilty”. The judge informed both attorneys of the problem, and they met with the jury as well. The jury-was then released, and they returned to the community.

Two days later, the judge sent an e-mail to both attorneys indicating that he intended to recall the jury for an “evidentiary hearing,” and thereafter issued a notice of hearing for that purpose. Several weeks later, the Defendant filed a petition for writ of prohibition in the Circuit Court to prevent the judge from conducting an evi-dentiary hearing of the former jury,. and asserting that the judge was without jurisdiction after the Defendant had been acquitted and released.

In spite of the pending petition, the trial judge conducted the evidentiary hearing on May 11. All the jurors returned and signed a verdict form correcting the verdict from “not guilty” to “guilty”. The judge then set a date for sentence. The Defendant did not appear for either the evidentiary hearing or sentence, and a ca-pias was issued.

More than a month later, on June 21, 2006, a panel of the Circuit Court rendered an order dismissing the Defendant’s petition for writ of prohibition, essentially finding that since the evidentiary hearing had already occurred, the petition was moot. The Defendant appeals.

The Defendant argues that the Circuit Court panel should have applied the petition for writ of prohibition to both the evidentiary hearing and the sentence. He asserts that although the evidentiary hearing had already taken place by the time the Circuit Court ruled on the petition, the sentencing had not yet occurred, and the Circuit Court should have issued the writ to prevent the trial court from passing sentence based on lack of jurisdiction.

There is no question that prior to discharging the jury, the trial court may correct a verdict where the jury has made some type of clerical error. Cory v. Greyhound Lines, Inc., 257 So.2d 36 (Fla.1971). However, the general rule is that once a jury has returned its verdict and has been discharged and separated, it cannot be recalled to alter or amend the verdict. See Miller v. Hoc, 1 Fla. 189 (Fla.1847); U.S Fid. & Guar. Co. v. Gulf Fla. Dev. Corp., 365 So.2d 748-49 (Fla. 1st DCA 1978). The reason for this general rule is that upon discharge into the community, the members lose their separate identity as a jury and are subjected to extra-trial influences which could affect a verdict upon reassembly.

Once a jury has been discharged and dispersed into the community, it cannot be reassembled to hear matters relating to the same criminal case. See Lee v. State, 294 So.2d 305 (Fla.1974); see also State v. Young, 936 So.2d 725 (Fla. 1st DCA 2006) (had trial court entered an actual acquittal of Young the verdict of acquittal would have been final and could not be reviewed without putting Young twice in jeopardy); Hudson v. State, 711 So.2d 244 (Fla. 1st DCA 1998) (when a jury acquits there is no exception permitting retrial once the Defendant has been acquitted no matter how egregiously erroneous).

In the trial court below, the verdict was published, entered into the record, the Defendant was acquitted and released, and the jury was discharged and dispersed into the community. Reassembly of the jury weeks later to proceed further may well have been improper.

In the appeal at hand, however, the issue before this court is a very narrow one. We do not apply the writ beyond the evidentiary hearing to which it was addressed. Because the petition for writ of prohibition sought to prevent the trial court from conducting an evidentiary hearing of the discharged jüry, and because the hearing had taken place by the time the ruling on the petition was rendered by the Circuit Court, the petition was moot. Accordingly, the ruling dismissing the petition for writ of prohibition is affirmed without prejudice to the seeking of appropriate relief by the Defendant.

AFFIRMED.

PALMER, C.J., and SAWAYA, J.,. concur.


author: LAWSON, J.

text:
    Nathaniel POOLE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-2844.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2007.
    Dan D. Hallenberg, of The Law Office of Dan Hallenberg, P.A., Fort Lauderdale, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appel-lee.
   LAWSON, J.

Nathaniel Poole, Jr., appeals from concurrent fifteen-year sentences on charges of lewd and lascivious conduct, entered after the trial court granted Poole’s motion for postconviction relief (on grounds that his prior sentences exceeded the statutory maximum penalty for second degree felonies). Based upon the date of his offense, Poole fell within the Heggs window and was sentenced under the 1994 guidelines. The only issue raised on appeal is whether Poole’s upward departure sentence was improper under Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm.

We have previously held that Blakely does not apply retroactively to cases that were final prior to its issuance, “even though resentencing took place subsequently on a scoresheet error.” Langford v. State, 929 So.2d 598, 599 (Fla. 5th DCA 2006). In this case, however, the departure was based upon Poole’s record of prior convictions, as authorized by section 921.0016(3)(r), Florida Statutes (1994) (authorizing an upward departure where the primary offense scored at offense level seven or higher and the defendant had previously been convicted of one or more offenses that scored at an offense level eight or higher). Because the departure was based upon Poole’s record of prior convictions, Poole’s sentences would stand even if Blakely did apply to his resentenc-ing. McBride v. State, 884 So.2d 476, 478 (Fla. 4th DCA 2004) {“Blakely, like Ap-prendi, does not require a jury to find beyond a reasonable doubt that a defendant had prior convictions for a sentencing court to enhance a sentence.”) (citing United States v. Marseille, 377 F.3d 1249, 1258 n. 14 (11th Cir.2004)). Therefore, we affirm.

AFFIRMED.

MONACO and EVANDER, JJ., concur.

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

      . Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


author: STEVENSON, J.

text:
    Richard A. PERRYMAN, M.D., Richard A. Perryman, M.D., P.A., a Florida Corporation, and Michael Rosenbloom, P.A., a Florida Corporation, Appellants, v. Jennifer and Tad CRAWFORD, as parents and legal guardians of Sydney Crawford, a minor, and South Florida Heart Center, PI, a Florida Corporation, Appellees.
    No. 4D06-2528.
    District Court of Appeal of Florida, Fourth District.
    Nov. 14, 2007.

      Dinah Stein and Mark Hicks of Hicks & Kneale, P.A., Miami, and Stephens, Lynn, Klein, Lacava, Hoffman & Puya, P.A., Fort Lauderdale, for appellants.
    Philip M. ’Burlington and Andrew A. Harris of Burlington & Rockenbach, P.A., West Palm Beach, and Bradley Winston of Winston & Clark, P.A., Plantation, for ap-pellees Jennifer and Tad Crawford.
   STEVENSON, J.

Appellants/defendants, Richard A. Per-ryman, M.D., Richard A. Perryman, M.D., P.A., and Michael Rosenbloom, P.A., prevailing parties in a medical malpractice jury trial, appeal from the trial court’s order granting plaintiffs’ motion for new trial. We affirm.

The two-week jury trial arose out of two surgeries that pediatric cardiologist Dr. Perryman performed on the infant daughter of Jennifer and Tad Crawford. The child, who was born with the congenital heart defect, Tetralogy of Fallot with absent pulmonary valve, required surgery to her pulmonary arteries. Following the second surgery, the child lost all blood flow to her left lung and the use of her left pulmonary artery. The outcome of this case weighed heavily on expert opinion testimony.

Near the end of the trial, the expert witness for the defense, Dr. Ross Ungerleider, presented medical opinion testimony that had not been disclosed to appellees during discovery. Dr. Perryman testified in his deposition, and at trial, that there was a typographical error in the surgical report concerning the pre-opera-tive size of the child’s left pulmonary artery (LPA) and that the artery was 19 millimeters rather than the 9 millimeters shown on the surgical report. The defense expert, Dr. Ungerleider, subsequently testified that the echocardiogram showed that the pre-operative size of the child’s left pulmonary artery (LPA) was 9 millimeters and much of his expert opinion was based on that assumption. The significance of this discrepancy was disputed by the experts, but Dr. Perryman himself testified that he would not have reduced the size of the LPA if it had been 9 millimeters. As a result, surprise and confusion regarding the testimony arose. The defendants’ trial attorney conceded to the trial judge that Ungerleider’s written interrogatory answers concerning his expert opinions were “woefully inadequate” and failed to come close to the disclosure requirements of the trial judge’s pretrial order.

Following a jury verdict in favor of the appellants, the trial judge granted the plaintiffs’ motion for new trial and ruled that the defense’s insufficient disclosure of Ungerleider’s opinion violated the pretrial order, produced surprise at the trial, and confused the jury to a degree that prejudiced the appellees. In addition, the trial court concluded that the plaintiffs had been misled in discovery because Dr. Per-ryman’s testimony of a typographical error was in direct contravention to the undisclosed expert opinion of defense witness, Dr. Ungerleider, who testified that the echocardiogram established that the LPA was indeed 9 millimeters. In accordance with those findings, the trial court granted appellees’ motion for mistrial and motion for new trial.

A trial judge’s order granting a new trial is subject to an abuse of discretion standard. Reid v. Altieri, 950 So.2d 518, 525 (Fla. 4th DCA 2007). “When a motion for new trial is made it is directed to the sound, broad discretion of the trial judge, who because of his contact with the trial and his observation of the behavior of those upon whose testimony the finding of fact must be based is better positioned than any other one person fully to comprehend the processes by which the ultimate decision of the triers of fact, the jurors, is reached.” Cloud v. Fallis, 110 So.2d 669, 673 (Fla.1959) (citations omitted).

In the context of the interpretation and enforcement of pretrial orders mandating witness disclosure, broad discretion is vested in the trial court and reviewing courts should reverse the trial judge only where there is “a clear showing of abuse prejudicial to the affected party.” Binger v. King Pest Control, 401 So.2d 1310, 1313 (Fla.1981). This court has consistently held that surprise, changed or undisclosed expert testimony may result in prejudice sufficient to require a new trial. See Belmont v. N. Broward Hosp. Dist. 727 So.2d 992 (Fla. 4th DCA 1999) (reversing judgment on appeal and remanding for new trial where defendant doctors surprised and prejudiced plaintiff by altering their previous testimony in the middle of trial); Office Depot, Inc. v. Miller, 584 So.2d 587, 590 (Fla. 4th DCA 1991) (affirming order granting new trial on basis of surprise where, during trial, expert witness “recanted” his opinion given during discovery); see also Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999) (affirming trial court’s order granting new trial on the basis of surprise and prejudice where defense’s compulsory medical examination witness testified at trial for the first time, unequivocally, that plaintiff received no permanent injury).

We find it no stretch to conclude that the failure to disclose an expert witness’s opinion in compliance with a pretrial order and a proper discovery request should be analyzed under the principles announced in Binger and is “tantamount to permitting an undisclosed adverse witness to testify.” Dep’t of Health & Rehabilitative Servs. v. J.B. ex rel. Spivak, 675 So.2d 241, 244 (Fla. 4th DCA 1996) (applying Binger to remand for new trial where the trial court allowed into evidence previously undisclosed opinion testimony obtained after the discovery deadline). Under the present circumstances, this court should not substitute its judgment for that of the trial judge. Whereas appellants contend that appellees should have conducted a more vigorous discovery, the trial judge possessed broad discretion to assess the plaintiffs’ due diligence, particularly in light of the inadequate disclosure of Dr. Unger-leider’s opinions combined with the misleading testimony of Dr. Perryman. We cannot find that the trial court abused its discretion in determining that the prejudicial effect ,of the inadequately disclosed and surprise expert opinion of Dr. Unger-leider required a new trial.

Affirmed. -

STONE and HAZOURI, JJ., concur.


author: WALLACE, Judge.

text:
    Richard GREEN, a/k/a Richard Reginald Green, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3283.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      James Marion Moorman, Public Defender, and John Thor White, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Richard Green appeals his judgments and sentences for robbery with a firearm and four counts of aggravated assault with a firearm. He argues that the trial court committed fundamental error when it used the expression “and/or” between his name and his codefendant’s name while instructing the jury. Mr. Green contends that this error requires a new trial on all charges. We agree that the use of “and/or” in the jury instructions for the aggravated assault charges did constitute fundamental error. However, we find no error in the jury instructions for the robbery charge. Accordingly, we reverse Mr. Green’s judgments and sentences on the four counts of aggravated assault with a firearm and remand for a new trial on those charges. We affirm Mr. Green’s judgment and sentence for robbery with a firearm.

I. The Facts, Charges, and Verdicts

The State charged Mr. Green, Duriel Holley, and Stacey Sawyer with the robbery of the GTE Federal Credit Union in Winter Haven on the morning of September 12, 2002. The State’s account of the incident was that Mr. Green and Mr. Holley entered the credit union with shotguns and forced the employees to give them cash from the teller drawers. Mr. Sawyer acted as the getaway driver; he waited outside in the car until Mr. Green and Mr. Holley emerged with the money. Then the three men sped away in a blue Chevy Cavalier.

At trial, the State’s witnesses included credit union employees and a customer who was at the drive-through window that morning. They testified that two males entered the building just after 9 a.m. The men wore dark, baggy clothing and latex gloves. The first man, who wore a mask, stayed in the front lobby area, holding a shotgun over two bank employees whom he had forced to the floor. The second man wore a bandana covering his face and a hooded sweatshirt. He jumped over the teller counter, rummaged through the cash drawers, and took cash at gunpoint from a teller, Chivonne Wilson, who got up off the floor to help him. The witnesses offered only vague descriptions of each man’s height, weight, and build, and none of the witnesses could identify any facial features of either man. The witnesses’ accounts differed concerning whether they saw two or three men in the blue Chevy Cavalier as it sped away from the credit union.

The State tried Mr. Green and Mr. Holley jointly for the offenses arising out of the incident. After pleading guilty in exchange for a lesser sentence for his participation in the robbery, Mr. Sawyer (the get-away driver) testified against Mr. Green and Mr. Holley. The jury found both men guilty of one count of robbery with a firearm and four counts of aggravated assault with a firearm — one count for each teller whom the men had threatened either in the lobby or behind the teller counter. The trial court sentenced Mr. Green to life imprisonment for the robbery and to four concurrent five-year terms of imprisonment for the four aggravated assaults.

II. The Jury Instructions

When the trial court read the jury instructions; it began by using both defendants’ names in ■ the Statement of the Charge:

Duriel Keith Holley and Richard Green, the Defendants in this case[,] have been accused of the crimes of robbery with a firearm and four counts of aggravated assault with a firearm.

The court then gave a single instruction for the robbery count but did not use any names when listing the essential elements of the crime. Instead, the trial court simply used the general term “the Defendant”:

Before you can find the Defendant guilty of robbery, the State must prove the following elements beyond a reasonable doubt. One, that the Defendant took money from the person or custody of Chivonne Paradise Wilson.[] Two, that force, violence, assault, or putting in fear was used in the course of the taking. Three, that the property taken was of some value. And, four, the taking was with the intent to permanently or temporarily deprive Chivonne Paradise Wilson of the right to the property or any benefit from it.... If you find that the Defendant carried a firearm in the course of committing the robbery[,] you should find him guilty of robbery with a firearm. If you find the Defendant carried no firearm or weapon in the course of committing the robbery, but did commit the robbery[,] you should find him guilty only of robbery.

When the trial court reached the instruction for aggravated assault with a firearm, it apparently reflected on the tedium that would ensue from reading the same instruction four times — i.e., once for each teller, other than Ms. Wilson, who had been threatened. It was perhaps for this reason that the court prefaced the reading of the aggravated assault instruction with the following:

Now, Members of the Jury, please understand that instead of reading this same instruction four times for Count[s] Three, Four, Five[,] and Six,[] I’m going to read it once.... When I mention a victim[,] I’m going to go through the alleged four victims’s [sic] names, okay?

The trial court then gave the following instruction:

Before you find the Defendant guilty of aggravated assault, the State must prove the following four elements beyond a reasonable doubt. The first three elements define the term assault. Number one, that Duriel Holley and/or Richard Green intentionally and unlawfully threatened either by word or act to do violence to Linda Schoonover, Nicole Bonnick, Angela Wilson, Rebecca Ar-gueta. At the time Duriel Keith Holley appeared to have the ability — I’m sorry Duriel Keith Holley and/or Richard Green here and after referred to as the Defendant, at the time, the Defendant appeared to have the ability to carry out the threat. Number three, that the act of the Defendant created in the mind of the listed alleged victims a well founded fear that the violence was about to take place. And, number four, that the assault was made with a firearm.

(Emphasis added.) Thus the trial court used the expression “and/or” between the codefendants’ names in the first two elements of the jury instruction for aggravated assault with a firearm. Before the court read the third and fourth elements, however, it reverted to using the general term, “the Defendant.”

III. Discussion

Mr. Green admits that trial counsel accepted the jury instructions as read without objection. As the Supreme Court of Florida explained in State v. Delva, “[i]nstructions ... are subject to the contemporaneous objection rule, and, absent an objection at trial, can be raised on appeal only if fundamental error occurred.” 575 So.2d 643, 644 (Fla.1991). Therefore, an error in unobjected-to jury instructions must be fundamental for an appellate court to consider it on appeal. Mr. Green argues that the error in his case was fundamental because it deprived him of his fundamental right to an individualized verdict on all counts. .

We first note that this court has consistently found fundamental error when a trial court uses a conjunction or the expression “and/or” between the names of codefendants while identifying the required elements of an offense. See, e.g., Zeno v. State, 910 So.2d 394, 396 (Fla. 2d DCA 2005) (finding jury instructions to be fundamentally wrong where the word “or” was inserted between codefendants’ names in instructing the jury on the essential elements of the crimes charged); Pizzo v. State, 916 So.2d 828, 833-34 (Fla. 2d DCA 2005), quashed on other grounds, 945 So.2d 1203 (Fla.2006); Rios v. State, 905 So.2d 931, 932 (Fla. 2d DCA 2005); Davis v. State, 895 So.2d 1195, 1196 (Fla. 2d DCA 2005) (finding that an instruction using the expression “and/or” between codefendants’ names deprived the defendant of her right to an individualized verdict); Cabrera v. State, 890 So.2d 506, 508 (Fla. 2d DCA 2005); see also Zeno v. State, 922 So.2d 431, 433 (Fla. 2d DCA 2006) (finding that appellate counsel provided ineffective assistance of counsel by not arguing that inserting the conjunction “or” between co-defendants’ names in the jury instructions on the essential elements of the charged offenses constituted fundamental error).

In this context, the use of the expression “and/or” incorrectly and confusingly implies that Defendant A can be convicted solely upon a finding that Defendant B’s conduct satisfied the elements of the offense. Cabrera, 890 So.2d at 508. This error is particularly offensive because in theory a jury could convict Defendant A where it found that neither defendant’s conduct in isolation satisfied all of the required elements, but when combined with Defendant B’s conduct,- all elements were satisfied.

The State argues that the-problems with the instructions in Mr. Green’s case were remedied when the trial court gave two supplemental instructions — i.e., the standard “principals” instruction and the standard “separate defendants” instruction. According to the State, the supplemental instructions cured the defects caused by the improper use of “and/or” in the primary instruction. We disagree.

Two years ago in Zeno, this court rejected a similar argument concerning the use of the standard “principals” instruction. 910 So.2d at 396 (“We specifically reject the State’s argument that the use of the standard ‘principals’ instruction cured the erroneous instructions on the substantive elements of the offenses.”). With respect to the use of the standard “separate defendants” instruction, the Third District has stated that its use may add to the confusion caused by the appearance of “and/or” in the primary instruction instead of curing it. Dorsett v. McRay, 901 So.2d 225, 227 (Fla. 3d DCA 2005). In Dorsett, the Third District observed:

[T]he confusion engendered by the and/or was, if anything, heightened rather than cured by the standard instruction. This is so béeause (a) even if the charges against each defendant were to be considered separately, as the standard jury instruction stated, the primary instruction still provided that [Defendant A] might be criminally liable solely if [Defendant B] was liable; and (b) the reference to any other defendant is totally unrelated to this case in which no other defendant was on trial.

Id. at 227. For these reasons, we conclude that the supplemental instructions read in this case did not cure the defects caused by the improper use of and/or in the primary instruction for aggravated assault.

In an alternative argument, the State suggests that we should adopt a contextual approach as the Fourth District did in Garzon v. State, 939 So.2d 278 (Fla. 4th DCA 2006), review granted, 956 So.2d 455 (Fla.2007) (table decision). The Garzón court distinguished the case before it from its prior decisions holding that the use of and/or between codefendants’names in a jury instruction constituted fundamental error. 939 So.2d at 286 (distinguishing Garzon from Davis v. State, 804 So.2d 400 (Fla. 4th DCA 2001), and Williams v. State, 774 So.2d 841 (Fla. 4th DCA 2000)). In Garzón, the Fourth District found special contextual circumstances in the facts of that case because Garzón had participated in the burglary and robbery at issue by means of a cell phone. Id. at 280-81. Without question, Garzón was not present in the victims’ home when the crimes occurred. Therefore, the Fourth District reasoned that the only way the jury could possibly have found him liable was if the principal instruction applied to him. Id. at 284-85. Under these specific circumstances, the principals instruction was central to the case and placed all the other instructions in the proper context. Id. Accordingly, the Fourth District concluded that the improper and/or instruction was harmless in Garzon’s case. Id. at 286.

Similarly, in Lloyd v. Crosby, 917 So.2d 988 (Fla. 3d DCA 2005), the Third District carved out an exception to the general proposition that use of the expression and/or between codefendants’ names constitutes fundamental error. In that case, two codefendants, Lloyd and Dorsett, were tried together. Id. at 988. Lloyd allegedly acted as one of the armed gunmen while Dorsett allegedly acted as the getaway driver. Id. at 989. On those facts, the Third District concluded that there [was] nothing that [the getaway driver] did or could have done which would have resulted in the wrongful conviction of Lloyd. Id. Consequently; the Third District held that the use of the expression and/or in the jury instructions was harmless as to Lloyd. Id.

Based on Lloyd .and Garzón, we recognize the possibility that error arising from the use of and/or in the jury instructions in a case , with multiple codefendants may be harmless. However, we cannot find similar distinguishing circumstances that lead us to that conclusion in this case. Unlike Lloyd, the State did not claim in Mr. Green’s case that either codefendant acted exclusively as a getaway driver. Instead, the State asserted that both Mr. Green and Mr. Holley participated in the crimes inside the building. Further, the robbers’ identities were disputed, and the evidence varied with respect to each robber’s role at the crime scene. In particular, the evidence showed that each man. interacted differently with the four tellers who were assaulted.

The problem in this case is that the and/or instruction read by the trial court stating the essential elements of aggravated assault with a firearm could have misled the jury to convict Mr. Green based wholly or in part on Mr. Holley’s conduct. For this reason, we reject the State’s invitation to find exceptional circumstances and to conclude that the jury would have found Mr. Green guilty of all four assaults in either case, i.e., either directly through his own actions or vicariously as a principal to Mr. Holley’s actions. The issue of Mr. Green’s guilt on the four charges of aggravated assault with a firearm must be determined by a jury that has been properly instructed on the elements of the crime.

We also reject Mr. Green’s argument that the improper use of the expression “and/or” in the instruction on aggravated assault tainted the robbery instruction by association. He suggests that the trial court somehow merged the two defendants into a single entity for all the instructions. We cannot agree with this reading of the instructions. The trial court did not use the expression “and/or” when it read the essential elements for the charge of robbery with a firearm. Later, when the trial court read the instructions for aggravated assault and erroneously used the construction, “Duriel Holley and/or Richard Green,” the court never suggested that the jury should apply this phrase to the earlier robbery instruction. It follows that the jury was properly instructed on the robbery charge.

IY. Conclusion

To summarize, we conclude that the improper use of the expression “and/or” in the jury instruction on the elements of aggravated assault constituted fundamental error. Therefore, we reverse Mr. •Green’s convictions on the four counts of aggravated assault with a firearm, and we remand for a new trial on those charges. However, because this error did not affect the robbery instruction, we affirm Mr. Green’s judgment and sentence for robbery with a firearm.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and SALCINES, JJ., Concur.

      . Robbery with a firearm is a first-degree felony punishable by up to life imprisonment. § 812.13(2)(a), Fla. Stat. (2002).

      . Aggravated assault is a third-degree felony punishable by imprisonment for up to five years. §§ 775.082(3)(d), 784.021, Fla. Stat. (2002).

      . In addition to the robbery and four counts of aggravated assault, the State also charged both defendants with an additional offense— armed burglary with assault or battery while armed. § 810.02(2)(a), Fla. Stat. (2002). For reasons not pertinent to this opinion, the trial court, directed a not guilty verdict on this charge — count one — after the codefendants had moved for a judgment of acquittal and before the court instructed the jury.

      . The State charged Mr. Green and Mr. Holley with taking the money from Ms. Wilson's custody because she was the teller who helped the second robber remove cash from the teller drawers.

      . The armed burglary charge was designated as count one and the robbery charge as count two. Thus the four aggravated assault charges were identified as counts three through six.

      . Florida’s standard jury instruction on "principals” — the specific instruction given in this case- — provides:
      If the defendant helped another person or persons commit [robbery with a firearm and aggravated assault with a firearm], the defendant is a principal and must be treated' as if he had done all the things the other person or persons did if
      1. the defendant had a conscious intent that the criminal act be done and
      2. the defendant did some act or said some word which was intended to and which did incite, cause, encourage, assist or advise the other person or persons to actually commit the crime.
      To be a principal, the defendant does not have to be present when the crime is committed.
      Fla. Std. Jury Instr. (Crim.) 3.5(a) (emphasis added).

      . Florida’s standard jury instruction on “separate defendants” — the specific instruction given in this case — provides:
      A separate crime is charged against each defendant in each count of the information. The defendants have been tried together; however, the charges against each defendant and the evidence applicable to him must be considered separately. A finding of guilty or not guilty as to one of the defendants must not affect your verdict as to any other defendant or other crimes charged.

      Fla. Std. Jury Instr. (Crim.) 3.12(c) (emphasis added).

      . The evidence showed that Garzón had prior knowledge of the victims’ home and used this knowledge to direct his coconspirators via cell phone from a remote location on where to look within the residence for a hidden safe and valuables.'

      . In Garzón, the Fourth District certified conflict with this court's decision in Zeno. 939 So.2d at 287 (citing Zeno, 910 So.2d at 394). The Fourth District characterized Zeno as ”stand[ing] for the proposition that the ‘and/ or’ conjunction in the jury charge on substantive crimes is always fundamental error in a case with multiple codefendants, regardless of context.” Id. (emphasis added). We disagree with this characterization of our holding in Zeno.

      In Zeno, this court did reject the State’s argument that' the “principals” instruction automatically cured the erroneous use of the expression "and/or” in the primary instruction. 910 So.2d at 396. However, we did not say in Zeno that there could never be a circumstance in which we would find the improper use of "and/or” in jury instructions to be nonfundamental or somehow rendered harmless by other considerations. Moreover, we do not see a conflict between this court's decisions and the two exceptions carved out in Garzón and Lloyd. Those two cases presented special factual circumstances not present in this case. Consequently, it is unnecessary to certify conflict with Garzón.


text:
    Kelvin PEARCE, a/k/a Kelvin Gerard Pearce, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-2204.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Elba Caridad Martin, Assistant Attorney General, Tampa, for Appel-lee.
   WALLACE, Judge.

Kelvin Pearce challenges a restitution order imposed after he pleaded guilty to petit theft, a first-degree misdemeanor. § 812.014(2)(e), Fla. Stat. (2000). He argues — and the State concedes — that the trial court erred when it authorized Mr. Pearce’s probation officer to establish a payment schedule for the restitution amount. We agree and reverse the restitution order in part with directions.

The Restitution Order & Subsequent Orders

At Mr. Pearce’s April 26, 2006, sentencing and restitution hearing, the trial court withheld adjudication on the petit theft offense. The trial court imposed a sentence of twelve months’ probation, and it ordered Mr. Pearce to pay $10,515 in restitution to the victim. Notably, the trial court delegated the matter of establishing a payment schedule to Mr. Pearce’s probation officer. Mr. Pearce timely filed his notice of appeal.

On November 20, 2006, Mr. Pearce filed a motion to correct sentencing error under Florida Rule of Criminal Procedure 3.800(b)(2). Mr. Pearce did not contest the amount of the restitution award, but he argued that the trial court erred when it authorized his probation officer to determine a schedule for the restitution payments. The trial court agreed, and on January 25, 2007, it filed an order granting Mr. Pearce’s motion and awarding him a new restitution hearing. On February 7, 2007, the circuit court set a restitution payment schedule at $250 per month. Finally, on April 12, 2007, the circuit court entered an order modifying the terms of Mr. Pearce’s probation so that any restitution amount outstanding at the end of his one-year probationary term would be converted to a lien.

Analysis

As the State concedes, the trial court erred in its original restitution order when it delegated to Mr. Pearce’s probation officer the authority for determining the restitution payment schedule. Florida courts have long held that the determination of a restitution payment schedule is a judicial responsibility that cannot be delegated. Lewellen v. State, 685 So.2d 1367, 1368 (Fla. 2d DCA 1996); Douglas v. State, 664 So.2d 1099, 1099 (Fla. 2d DCA 1995); Guinn v. State, 652 So.2d 902, 902 (Fla. 2d DCA 1995); Briggs v. State, 647 So.2d 182, 182 (Fla. 1st DCA 1994); see also Thomas v. State, 635 So.2d 1009, 1010 (Fla. 1st DCA 1994) (finding error where the trial court revoked probation based on the defendant’s failure “to follow a payment schedule established, not by the trial court, but by the probation officer”). In addition, while the trial court clearly intended to correct its error when it granted Mr. Pearce’s rule 3.800(b)(2) motion, we note that sixty-six days had elapsed from November 20, 2006 (the day Mr. Pearce filed his motion) to January 25, 2007 (the day the order granting the motion was filed). Consequently, Mr. Pearce’s motion was deemed denied by rule when the trial court failed to dispose of it within sixty days — i.e., by January 19, 2007. See Fla. R.Crim. P. 3.800(b)(1)(B). For these reasons, we affirm the restitution order to the extent that it established the restitution amount, but we reverse the restitution order to the extent that it delegated to the probation officer the determination" of the payment schedule.

Because the circuit court did not file an order ruling on the motion within the sixty-day time period, its jurisdiction to correct the error terminated on January 19, 2007. Thus the January 25 order granting Mr. Pearce’s motion, the February 7 order setting the restitution payment schedule at $250 per month, and the April 12 order converting all outstanding restitution amounts to a Ken are nullities. Whitmore v. State, 910 So.2d 308, 308 (Fla. 2d DCA 2005); Sessions v. State, 907 So.2d 572, 573 (Fla. 1st DCA 2005). Accordingly, we vacate these orders.

Conclusion

To summarize, we affirm Mr. Pearce’s judgment and sentence, and we affirm the portion of the restitution order that establishes the restitution amount. We reverse the restitution order to the extent that it delegates authority to Mr. Pearce’s probation officer to determine the restitution payment schedule. We vacate the three orders entered after January 19, 2007, and we remand with directions to conduct a new restitution hearing to determine the appropriate method for Mr. Pearce to satisfy the remainder of his restitution obligation.

Affirmed in part, reversed in part, and remanded with directions.

CASANUEVA and CANADY, JJ., Concur.


author: DANAHY, PAUL W„ Senior Judge.

text:
    C.G.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4185.
    District Court of Appeal of Florida, Second District.
    Nov. 16, 2007.

      James Marion Moorman, Public Defender, and Robert D. Rosen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appellee.
   DANAHY, PAUL W„ Senior Judge.

We review the order of the trial court that found C.G.H., a juvenile, guilty of the delinquent acts of burglary of a conveyance and third-degree grand theft. Following the adjudicatory hearing and findings of guilt, the court withheld adjudication and placed C.G.H. on probation. We affirm the trial court’s finding of guilt of the delinquent act of burglary without further discussion but reverse the finding of guilt as to the grand theft.

An essential element of third-degree grand theft is proof that the value of the stolen property is $300 or more at the time of the theft. § 812.014(2)(c)(l), Fla.

Stat. (2005). At trial the victim testified he purchased the camera taken in the burglary one year prior to the offense. Evidence was presented concerning the purchase price of the camera, but no other information was given to establish the value of the item at the time of the theft. “Value means the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.” § 812.012(10)(a)(l). Testimony only of the purchase price of an item without establishing the value at the time of the theft is insufficient to sustain a finding of guilt of third-degree theft. See Pickett v. State, 839 So.2d 860, 862 (Fla. 2d DCA 2003). Accordingly, we reverse the finding of guilt of grand theft and remand this matter to the trial court. On remand, the trial court is directed to reduce the grand theft to petit theft and enter a new disposition order. See Jones v. State, 958 So.2d 585, 586 (Fla. 2d DCA 2007).

Affirmed in part, reversed in part, and remanded.

ALTENBERND and DAVIS, JJ., Concur.