author: POLSTON, J.

text:
    XL SPECIALTY INSURANCE COMPANY, Petitioner, v. AIRCRAFT HOLDINGS, LLC, Respondent.
    No. 1D05-4333.
    District Court of Appeal of Florida, First District.
    April 24, 2006.
    Rehearing Denied May 31, 2006.

      Webster, J., concurred in the result only.
    Thomas M. Findley; Albert T. Gimbel; and Robert J. Telfer, III of Messer, Ca-parello <& Self, P.A., Tallahassee, for Petitioner.
    Gary A. Shipman and William E. Whitney of Dunlap, Toole, Shipman & Whitney, P.A., Tallahassee, for Respondent.
   POLSTON, J.

Petitioner XL Specialty Insurance Company argues, in its petition for writ of certiorari, that the trial court’s order compelling attorney-client privileged documents should be quashed because it misapplies the Florida Supreme Court’s recent holding related to discovery of work product in first-party bad faith actions, Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), to attorney-client privileged communications. We agree, and therefore grant the petition and quash the trial court’s August 29, 2005 order compelling discovery.

I. BACKGROUND

A. Aircraft Holdings’ Allegations

On August 14, 2003, a Learjet aircraft owned by Respondent Aircraft Holdings, LLC, and operated as an air ambulance crashed on landing at the airport in Cancun, Mexico. The insurance policy issued by XL covered the Learjet for physical damage under coverage F with a specifically stated “insured value” of $2.4 million. Under the policy definitions, “total loss” meant any physical damage loss for which the costs to repair when added to the salvage value equals or exceeds the stated insured value. The aircraft was also covered by Endorsement 8 which “covers physical loss of or damage to the aircraft specified in Item 5 of the Declarations page caused by: ... (e) Confiscation, nationalization, seizure, restraint [or] detention, ... by or under the order of any Government .... or public or local authority.”

Aircraft Holdings alleged that it promptly reported its aircraft to be an “estimated total loss,” but that XL did little to investigate the extent of the damage. XL obtained a two-page preliminary repair estimate, which was admittedly incomplete. Aircraft Holdings retained the manufacturer of the aircraft, Learjet, to travel to Mexico to inspect the aircraft on multiple occasions. The damage reports were promptly supplied to XL, and indicated that the damage (which was worsening as the aircraft sat on the ground in Mexico) met the policy definition of “total loss.”

The crash had damaged the airport’s runway, and the Mexican authorities refused to allow the aircraft to be released for repairs in the United States until its damage claim was resolved. The XL policy covered Aircraft Holdings for damage to property of others such as the runway damage, but XL did not resolve the claim and obtain a release of the aircraft from Mexico. At the same time, XL did not offer any payment to Aircraft Holdings under Endorsement 8, which covered the aircraft for physical loss due to confiscation, seizure, restraint, or detention by the Mexican authorities.

In early March 2004, Aircraft Holdings demanded that XL furnish its own complete and current appraisal of the damage and proceed with an appraisal process specified under Condition 10 of the policy (which involved a referee to resolve differences between the appraisals). XL did not accept or reject the damage appraisal from Learjet and did not respond to Plaintiffs request to utilize the appraisal process.

B. Litigation

On April 14, 2004, Aircraft Holdings filed a complaint against XL alleging breach of contract (Count I) and a statutory cause of action for insurer bad faith pursuant to section 624.155, Florida Statutes (Count II). The trial court entered an order abating the bad faith claim on October 26, 2004, and entered judgment on the breach of contract claim in favor of Aircraft Holdings. At the time judgment was entered for Aircraft Holdings, awarding $2.4 million less the policy deductible of $10,000, XL had paid $2,390,000 into the registry of the court. The court also awarded attorney’s fees to Aircraft Holdings. XL has appealed these rulings, which are currently separately on appeal to this court. This appeal does not address in any way the merits of Aircraft Holdings’ allegations or the trial court’s rulings in the breach of contract action.

Following entry of the orders in favor of Aircraft Holdings, the abatement of the bad faith claim under Count II was lifted by the trial court. Aircraft Holdings propounded discovery to XL on the bad faith issues, and XL filed numerous objections. The trial court entered an order on August 29, 2005, requiring that XL provide certain discovery:

ORDER PARTIALLY GRANTING PLAINTIFF’S MOTION TO COMPEL DISCOVERY
THIS MATTER came on for hearing before the Court upon the Plaintiffs Motion to Compel dated June 3, 2005, filed by plaintiff, Aircraft Holdings, LLC, and after hearing argument of counsel, Wd the Court being otherwise fully advised in the premises, it is hereby ORDERED that the motion to compel is GRANTED in part, as follows:
1. The Court finds that under the recent Florida Supreme Court ruling in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), the same discovery rules applicable to “third party” bad faith claims now apply to “first party” bad faith claims such as the case at bar. Therefore the discovery objections of attorney-client privilege and work product protection no longer apply on behalf of Defendant XL, for any documents and materials in the claim, and litigation files through the date of the resolution of the underlying breach of contract claim in favor of Plaintiff. Accordingly, all of XL’s objections on the basis of attorney-client privilege and work product protection are hereby OVERRULED. In holding that discovery in first party and third party claims were to be treated identically, the Florida Supreme Court stated that “the pertinent issue is the manner in which the company has handled the suit including its consideration of the advice of counsel so as to discharge its mandated duty of good faith.” Furthermore, the Court stated, “we hold that in connection with evaluating the obligation to process claims in good faith under Section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first party bad faith action.” Accordingly, the Court finds that in the case at bar, Plaintiff is entitled to discovery responses and production from Defendant XL of all materials contained in the files of XL, its counsel/third party administrators Kern & Wooley, LLP, and its Florida counsel Messer, Caparello & Self, P.A. generated up until the date that this Court granted summary judgment on January 6, 2005, including but not limited to all letters, correspondence, memoranda and emails, by and between those entities. The Court further finds that there is no basis to limit the discovery responses from Defendant XL to those materials generated before April 2004 when Plaintiffs breach of contract action was filed and the notice of insurer violation was filed with the Department of Financial Services. Rather, Ruiz specifically held that “all materials ... created up to and including the date of resolution of the underlying disputed matter ... should also be produced in a first party bad faith action.” 899 So.2d at 1129.
3. The Court notes that it has not conducted an in camera inspection of documents filed by the Defendant in this matter. The Court relies on Ruiz for the proposition that litigation files, as described above, are to be produced.
7. The Court orders that the requested materials will be produced within thirty (30),days from the later of the date of this order or the date of the disposition of any appellate certiora-ri proceedings reviewing this order.
The trial court’s order compelling discovery is the subject of these proceedings.

II. RUIZ DOES NOT ELIMINATE THE ATTORNEY-CLIENT PRIVILEGE

XL argues that the trial court erred by compelling attorney-client privileged documents relating to the (i) defense of the bad faith claim, (ii) underlying contract claim, and (iii) time period after the bad faith claim was made.

A. Defense of the Bad Faith Claim

XL argues that the trial court’s order erroneously requires it to produce letters drafted by its counsel regarding the legal issues in the bad faith case. As the trial court quoted in its order, the Florida Supreme Court’s holding in Ruiz pertained to documents “in the underlying claim and related litigation file.” Id. at 1130. The Court’s ruling in Ruiz does not pertain to documents relating to the bad faith litigation in any way. Aircraft Holdings provides no other authority for compelling attorney-client privileged documents relating to the bad faith claim. Therefore, those documents are protected from disclosure by the privilege as provided in section 90.502, Florida Statutes (2005). We agree with XL that the trial court should have conducted an in camera inspection of the documents at issue and excluded attorney-client privileged documents relating to defense of the bad faith claim from its order compelling production. Ruiz, 899 So.2d at 1130 (stating, “we caution that where the coverage and bad faith actions are initiated simultaneously, the courts should employ existing tools, such as the abatement of actions and in-camera inspection, to ensure full and fair discovery in both causes of action”); cf. United Servs. Auto. Ass’n v. Jennings, 731 So.2d 1258, 1260 (Fla.1999) (ruling that in a third-party bad faith action, the required discovery “does not include any attorney-client communication or work-product material which pertains to the insurer’s defense of itself in the bad-faith action”).

B. Underlying Contract Claim Holding of Ruiz

The trial court cited Ruiz and interpreted the opinion to eliminate the attorney-client privilege whenever a bad faith claim is brought under section 624.155. Although we understand how the trial court concluded that Ruiz also applies to attorney-client privileged documents from the general language used by the Florida Supreme Court in its decision, we do not interpret the holding of Ruiz as expansively. The holding of Ruiz applies only to work product — not attorney-client privileged documents.

In Ruiz, the Florida Supreme Court exercised its discretionary jurisdiction over the Fourth District Court of Appeal’s decision below because it conflicted with decisions from other district courts “with regard to issues concerning application of work product privilege to shield documents from discovery in the insurance bad faith context.” Ruiz, 899 So.2d at 1122. Significantly absent from the Court’s conflict determination is any mention of the attorney-client privilege. This is not surprising because the underlying opinion by the Fourth District Court of Appeal applies only to work product and does not address attorney-client privileged communications in any way. Allstate Indemnity Co. v. Ruiz, 780 So.2d 239 (Fla. 4th DCA 2001). Significantly, because attorney-client privilege was not an issue in conflict, the Florida Supreme Court did not decide the issue because of a lack of jurisdiction. See e.g., Kelly v. Cmty. Hosp. of the Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla.2002) (stating “[w]e decline to address the issues raised by the petitioner which are beyond the scope of the basis for our conflict jurisdiction”). In Savoie v. State, 422 So.2d 308, 310 (Fla.1982), the Court determined it had jurisdiction because of a conflict between decisions of the district courts of appeal over an issue, but then decided the case on a different issue than the one in conflict. The Court explained:

We have jurisdiction, and, once this Court has jurisdiction of a cause, it has jurisdiction to consider all issues appropriately raised in the appellate process, as though the case had originally come to this Court on appeal. This authority to consider issues other than those upon which jurisdiction is based is discretionary with this Court and should be exercised only when these other issues have been properly briefed and argued and are dispositive of the case.

Id. at 312. Unlike Savoie, the Court in Ruiz could not have reached the issue of attorney-client privilege because it was totally absent in the appellate process and accordingly was not dispositive of the case.

Therefore, the holding in Ruiz applies only to the work-product privilege. As stated by Justice Wells, in his separate opinion in Ruiz, “the only issue being decided in this case is the discovery of work product in the claims file pertaining to the underlying insurance claim.” 899 So.2d at 1132 (Wells, J., concurring in part and dissenting in part). The majority does not take issue with his characterization of the issue in the case, understandably because it describes it in the same manner. “[0]ur determination essentially eliminates the basis of the discovery dispute and the issue giving rise to the conflict between the decision below and the multiple decisions of other district courts of appeal •pertaining to ivhen work product privilege attaches to shield documents from production in this context.” Id. at 1130 (emphasis added).

Reaching its decision, the Court receded from the portion of its decision in Kujawa v. Manhattan National Life Insurance Co., 541 So.2d 1168 (Fla.1989), regarding

work product. Ruiz, 899 So.2d at 1131 (stating, “we believe that a portion of our decision in Kujawa is both legally and practically untenable;” “We also clarify and, to the extent necessary, recede from our decision in Kujawa as explained herein”). In Kujawa, the trial court ordered production of files pertaining to the handling of an insurance claim without regard to the attorney-client privilege or work product. 541 So.2d at 1169. The Fourth District Court of Appeal held that the insurance company was entitled to these protections to the same extent as any other litigant and the Florida Supreme Court agreed:

We have considered the arguments of the parties and amicus curiae and are persuaded that the district court was correct in concluding that an adversarial, not a fiduciary, relationship existed between the parties and that the legislature in creating the bad faith cause of action did not evince an intent to abolish the attorney-client privilege and work product immunity. We point out, as did the district court below, that the holding of absolute immunity from disclosure extends only to matters arising under the attorney-client privilege. Files protected by the work product immunity only may yield to inspection if an appropriate showing under rule 1.280(b)(2), Florida Rules of Civil Procedure, can be made. Even this rule, however, precludes discovery of attorney-client matters.

Id. Because the Court in Kujawa held that the attorney-client privilege applies to discovery in a bad faith action, and is not eliminated, and the Court in Ruiz did not recede from that portion of the opinion, we continue to apply the portion of Kujawa relating to attorney-client privilege as controlling precedent. Therefore, we hold that the trial court erred by compelling production of attorney-client privileged documents.

First-Party Precedent

Even if the Court in Ruiz receded from Kujawa in its entirety, as argued by Aircraft Holdings, controlling precedent by this court, Progressive American Insurance Co. v. Lanier, 800 So.2d 689 (Fla. 1st DCA 2001), indicates that the attorney-client privilege should be applied in a first-party bad faith action.

In Lanier, Progressive petitioned for writ of certiorari for review of the trial court’s order granting a motion to compel discovery. The Laniers filed a first-party bad faith action against Progressive following the theft of a tractor-trailer insured by Progressive. The issue before the court was “whether the trial judge departed from thé essential requirements of law by requiring Progressive to produce documents in its claim file and documents and/or entries in its ‘face sheet notes’ (computer entries utilized by claims representatives) that Progressive claimed were subject to the attorney-client privilege and/or were protected work product.” Id. at -690. This court granted the petition for certiorari because the attorney-client privileged documents between Progressive and its lawyers should not have been compelled by the trial court. Id. at 690-91.

The court described the various documents subject to the attorney-client privilege and held that “the trial court departed from the essential requirements of law by requiring production of pages 1-114 of Progressive’s claim file, except pages 4, 11-17, 61-63, and 85 thereof, over Progressive’s claim of attorney-client privilege” and “by requiring production of all those entries in the facesheet notes as above discussed that constitute attorney-client communications.” Id. at 691. Because Ruiz does not overrule Lanier, we follow Lanier and hold that the trial court’s order compelling production of attorney-client privileged documents in this case departed from the essential requirements of law.

Statutory Construction

Even if this court were not required to follow Kujawa or Lanier, the plain meaning of sections 90.502 and 624.155 indicates that the attorney-client privilege has not been eliminated in first-party bad faith actions. Aircraft Holdings argues that XL’s attorney-client privilege was eliminated once Aircraft Holdings filed the bad faith action pursuant to section 624.155. For this argument to prevail, we would need to interpret section 624.155 to substantively include as part of the bad faith claim how an insurance company, as a client to a lawyer, reacted to its lawyer’s advice on the initial claim and in conducting litigation on a breach of contract action. That is, if the legislature placed the communications between an insurance company and its lawyer at issue as part of the bad faith claim provided in section 624.155, then there is no attorney-client privilege when the bad faith action is filed. Because Aircraft Holdings argues that section 624.155 substantively eliminates the privilege provided by section 90.502 in this instance, the applicability of section 90.502 is substantive rather than procedural. Accordingly, we are analyzing the two statutory sections, 624.155 and 90.502, under statutory construction principles, rather than applying a procedural rule of privilege to section 624.155. See City of North Miami v. Miami Herald Publ’g Co., 468 So.2d 218 (Fla.1985) (comparing chapter 119 and section 90.502 regarding disclosure of attorney-client privileged documents).

There is a complete absence of any reference in the bad faith statute, section 624.155, to the attorney-client privilege. Nor is there any mention within section 624.155 that bad faith includes how the insurance company reacted to advice of counsel, with respect to the claim or in a breach of contract action, in a first-party action. Accordingly, the express provisions of section 90.502 apply and the attorney-client privilege is not eliminated by a plain reading of the statutes. In Stoletz v. State, 875 So.2d 572 (Fla.2004), the Florida Supreme Court discussed statutory construction:

This Court has repeatedly held that the plain meaning of statutory language is the first consideration of statutory construction. See State v. Bradford, 787 So.2d 811, 817 (Fla.2001). In addition, “a specific statute covering a particular subject area always controls over a statute covering the same and other subjects in more general terms.” McKendry v. State, 641 So.2d 45, 46 (Fla.1994).

Id. at 575. As in Stoletz, the language of the general statute dealing with bad faith, section 624.155, and the language of the more specific statute dealing with attorney-client privilege, section 90.502, is plain and unambiguous. There is an attorney-client privilege specifically provided within section 90.502 and the bad faith statute has no language to eliminate the privilege.

Moreover, section 90.502(3) describes who may claim the privilege:

(a) The client.
(b) A guardian or conservator of the client.
(c) The personal representative of a deceased client.
(d) A successor, assignee, trustee in dissolution, or any similar representative of an organization, corporation, or association or other entity, either public or private, whether or not in existence.
(e) The lawyer, but only on behalf of the client. The lawyer’s authority to claim the privilege is presumed in the absence of contrary evidence.

The insurance company, as the client, is the holder of its attorney-client privilege. There is no provision within the statute for the insured to claim the insurance company’s attorney-client privilege. Only those who have the privilege may waive it through voluntary disclosure. See § 90.507, Fla. Stat. (2005) (“A person who has a privilege against the disclosure of a confidential matter or communication waives the privilege if the person, or the person’s predecessor while holder of the privilege, voluntarily discloses or makes the communication when he or she does not have a reasonable expectation of privacy, or consents to disclosure of, any significant part of the matter or communication.”). Therefore, according to the Florida Evidence Code, XL, and not Aircraft Holdings is the holder of its privilege, and only XL can waive it by voluntary disclosure. If the privilege were eliminated upon filing of the bad faith action as argued by Aircraft Holdings, then Aircraft Holdings would essentially own the privilege and decide when it could be waived. We reject Aircraft Holdings’ argument because it contradicts a plain reading of the Florida Evidence Code.

Section 90.502 also describes circumstances when there is no attorney-client privilege recognized although the communications would otherwise fall within the scope of the privilege. See § 90.502(4), Fla. Stat. (2005) (listing five instances where there is no lawyer-client privilege). There is no exception provided for communications between an insurance company and its lawyer in the event a bad faith action is filed. Id.; see Eastern Air Lines, Inc. v. U.S. Aviation Underwriters, Inc., 716 So.2d 340, 343 (Fla. 3d DCA 1998) (ruling that the attorney-client privilege was not eliminated and recognizing that “[n]one of those five circumstances [in section 90.502(4) ] is present in this case”). Because the legislature did not provide an exception to the attorney-client privilege for a bad faith action in its list of exceptions, we decline to create one. See Young v. Progressive S.E. Ins. Co., 753 So.2d 80, 85 (FIa.2000) (applying expressio unius est exclusio alterius, the mention of one thing implies the exclusion of another, to a list of statutory exclusions).

Therefore, the trial court erred by not giving section 90.502, the attorney-client privilege, full effect. See Forsythe v. Longboat Key Beach Erosion Control List., 604 So.2d 452, 455 (Fla.1992) (“Where possible, courts must give full effect to all statutory provisions and construe related statutory provisions in harmony with one another.”); State v. Goode, 830 So.2d 817, 824 (Fla.2002) (stating that “a basic rule of statutory construction provides that the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless”). Because of our ruling, we do not reach XL’s argument that the documents relating to a time period after the bad faith claim was made should not be discoverable.

Conclusion

Therefore, we grant XL’s petition for writ of certiorari and quash the trial court’s order compelling attorney-client privileged documents and remand with directions. We certify the following question to be of great public importance:

Does the Florida Supreme Court's holding in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), relating to discovery of work product in ñrst-party bad faith actions brought pursuant to section 624.155, Florida Statutes, also apply to attorney-client privileged communications in the same circumstances?

HAWKES, J., concurs; WEBSTER, J., concurs in result only.

      . “[T]he party seeking review must demonstrate not only that the trial judge departed from the essential requirements of law, but also that the harm resulting from the erroneous order cannot be remedied in a plenary appeal from the final judgment." Philip J. Padovano, Florida Appellate Practice, § 9.7, at 181 (2006 eel). Aircraft Holdings agrees that an order compelling discovery over a claim of privilege is reviewable by certiorari, id. at § 28.5 n. 5, at 680 (collecting cases), but argues that the petition should be denied because the trial judge did not depart from the essential requirements of law.

      . Aircraft Holdings argues that communications between XL and counsel/third party administrators Kern & Wooley, LLP are not protected attorney-client privileged documents because they are in the capacity as a business advisor. Because all documents were compelled, the trial court did not reach this issue. On remand, the trial court should conduct an in camera inspection to determine whether those documents are subject to the attorney-client privilege. See Charles W. Ehrhardt, Florida Evidence, § 502.2 at 327-28 & n. 9 (2005 ed.) (stating that the attorney-client privilege recognizes confidential communications made during the rendition of legal services to the client, not as a business advisor).

      . When section 90.502 was enacted and revised, the Florida Supreme Court adopted it as a rule to the extent that the privilege is procedural. In re Fla. Evidence Code, 372 So.2d 1369 (Fla. 1979); In re Fla. Evidence Code, 638 So.2d 920 (Fla.1993); In re Fla. Evidence Code, 675 So.2d 584 (Fla.1996); In re Amendments to the Fla. Evidence Code, 825 So.2d 339 (Fla.2002).

      . Although the attorney-client privilege has been codified as part of the Florida Evidence Code, the work product privilege, addressed in Ruiz, is not part of the Evidence Code, but is provided by rule. See Fla. R. Civ. P. 1.280(b)(3). Accordingly, this statutory comparison was not applicable and therefore absent in the Ruiz analysis.

      .Had the legislature intended to eliminate the privilege when the underlying claim on the policy was concluded, as argued by Aircraft Holdings, it could have said so in section 624.155 but did not. Cf. § 624.311(2), Fla. Stat. (2005) ("The records of insurance claim negotiations of any state agency or political subdivision are confidential and exempt from s. 119.07(1) until termination of all litigation and settlement of all claims arising out of the same incident.”).

      . An insurance company may choose to defend its actions by proving it followed the advice of its lawyer when it acted on the claim. If the company defends on that basis, it places the attorney-client communications at issue and thereby waives the privilege. See Charles W. Ehrhardt, Florida Evidence, § 502.8 at 358-59 (2005 ed.) ("The client is the holder of the privilege and is the only person who may waive it. If the client voluntarily discloses the substance of a communication, the client waives the privilege as to that communication.... If the client offers testimony concerning a specific communication to an attorney, the client waives the privilege for all other communications with the attorney on the same subject matter.”); Rhone-Poulenc Rorer Inc. v. Home Indem. Co., 32 F.3d 851, 863-64 (3d Cir.1994) (stating that the attorney-client privilege is waived when the client puts the attorney's advice in issue; "A party does not lose the privilege to protect attorney client communications from disclosure in discovery when his or her state of mind is put in issue in the action. While the attorney’s advice may be relevant to the matters in issue, the privilege applies as the interests it is intended to protect are still served by confidentiality.”). In this case, it is undisputed that XL is not defending on that basis, and therefore did not waive its privilege. See Home Ins. Co. v. Advance Mach. Co., 443 So.2d 165 (Fla. 1st DCA 1983) (holding that insurance company did not waive its attorney-client privilege by bringing an action for contribution when the reasonableness of a settlement was at issue).

      . The trial court interpreted Ruiz to eliminate the attorney-client privilege for all documents relating to Aircraft Holdings' claim on the contract. We agree with XL that Ruiz should not be read so broadly. But even if it is read to eliminate the attorney-client privilege, there should be no discovery until the underlying breach of contract action has been resolved. The trial court’s ruling on the breach of contract claim is pending on appeal, therefore is not finally resolved. Ruiz does not require production of attorney-client documents relating to the breach of contract action while it continues to be litigated. 899 So.2d at 1130 (stating "litigants who choose to file both actions [breach of contract and bad faith] simultaneously must recognize that certain documentation relevant to the bad faith action may not be available for discovery until after resolution of the underlying matter"). Aircraft Holdings cites no other authority for making those disclosures until the contract action is over, including any appeals. Therefore, the trial court erred by requiring production according to the schedule described in paragraph 7 of its order.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald Glee WOOD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3028.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2006.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Rule 9.140(b), Fla. R.App. P.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


author: GRIFFIN, J.

text:
    Sergio CORONA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2850.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.

      Steven G. Mason, of Law Offices of Steven G. Mason, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Belle B. Schumann and Timothy D. Wilson, Assistant Attorneys General, Daytona Beach, for Petitioner.
   GRIFFIN, J.

This case is on remand from the United States Supreme Court for reconsideration in light of Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

The following facts are relevant to our opinion: On January 25, 2002, Sergio Corona (“Corona”) and his family were vacationing in Orlando, Florida. The family was accompanied by relatives of Mrs. Corona. The entire group shared a suite at the Westgate Resort near Walt Disney World. Shortly after midnight, Mrs. Corona walked into the bedroom she was sharing with Corona and witnessed her husband performing oral sex on the couple’s eleven-year-old daughter, A.C. Mrs. Corona lunged at her husband, who did not realize someone had entered the room, and pulled him up by the hair. He immediately fled the suite, pursued by Mrs. Corona and her relatives, then got in the family van and drove back to Chicago. Mrs. Corona tried to get a security guard to stop her husband as he drove away. The guard refused, but he did report the incident to his supervisor and the police were called. Mrs. Corona was very upset when she spoke with the police and offered little useful information. A.C., however, was able to give a statement describing the crime in detail.

Mrs. Corona and A.C. returned to Chicago with other family members. Serendipitously, two days later, they crossed paths with Corona on the Eisenhower Expressway. The family blocked Corona’s van with their own SUV and refused to allow Corona to drive away. When police arrived, they found a white van in a traffic lane blocked by a black SUV. Corona was sitting in the van. More than ten irate people were on the highway, crying and yelling and trying to get at Corona. Officer Malkowski put Mr. Corona in his police car for his own protection. Corona exclaimed to him: “I can’t believe I did it,” and, “Why did I do it?” Officer Malkowski learned from the family members that they were angry with Corona because he had sexually assaulted the youngest daughter while they were on vacation in Florida. They said they had made a complaint to police, but that Corona had fled the scene, and they had just crossed paths with him on their way home to Chicago. Upon learning this, Officer Malkowski took Corona into custody and read Corona his rights.

A detective interviewed Mrs. Corona and A.C. in Spanish. A.C. reported that she had been on the bed with her father, who had pulled her underwear to one side and put his mouth on her genital area. Officer Malkowski, joined by State Trooper Ewald, then interviewed Corona for several hours. During the interview, Corona confessed to placing his mouth on A.C.’s genital area during the family’s Florida vacation. He said his wife came into the room and saw what he was doing. At that point, he got up and ran away.

Corona was charged with committing the crime of capital sexual battery against A.C., who was less than twelve years old. § 794.011(2), Fla. Stat. (2000). Mrs. Corona and A.C. were initially cooperative with police, and the State intended for them to testify at trial. However, several weeks before trial, the State realized that A.C. and her mother, who lived in Illinois, would not appear at trial voluntarily. The State attempted to compel Mrs. Corona’s attendance at trial, but repeated attempts to locate her were unsuccessful.

Because of Mrs. Corona’s and A.C.’s refusal to cooperate, the State was forced to prove its case through the testimony of Deputy Jocelyn Avilis, who testified at trial to statements made by A.C. when reporting the incident. The court held a hearing on the admission of this hearsay evidence immediately before trial. Evidence regarding A.C.’s “unavailability” was presented through the testimony of Elizabeth Salgado-Valentini (“Salgado”), an investigator with the Cook County Illinois State Attorney’s Office, who had attempted to locate Mrs. Corona in Illinois. According to Salgado, Mrs. Corona actively evaded numerous attempts to serve her at various locations and repeatedly hung up the telephone when called by investigators. The investigators’ efforts continued through August 2, 2002, at which point Salgado went to the Cook County courthouse and had material witness warrants issued for Mrs. Corona and A.C. Copies of the warrants were introduced into evidence. However, the warrants were not executed in time to secure the appearance of Mrs. Corona or A.C. before trial.

The trial court agreed with the State that Mrs. Corona was not cooperating and that, consequently, A.C. was “unavailable” as a witness within the meaning of section 90.803(23), Florida Statutes. The court explained:

In terms of unavailability, I’m finding that the child is unavailable. It’s obvious the mother is evading any efforts to cooperate with this case, and stated so to the police officials up in Illinois; evade any efforts to serve, is not going to cooperate. The child was unable to be secured for testimony despite having issued various warrants to the mother to get the child here for trial.

The court also found that A.C.’s statements were sufficiently reliable for admission. In light of the court’s ruling, defense counsel made a non-specific objection that the admission of A.C.’s statement violated Corona’s right to “confrontation.”

At the commencement of .the second day of trial, the following transpired:

THE COURT: Ready to go forward, back with the trial?
[PROSECUTOR]: Yes, Your Honor.
[DEFENSE COUNSEL]: Yes, Your Honor. At this time, I’d like to renew all previous objections.
THE COURT: Any one in particular?
[DEFENSE COUNSEL]: Yes, Your Honor, the child’s hearsay statements coming in, my client’s admissions coming in; any — I’m not sure if the State’s tried to bring any statements of Victoria Corona — but if they do, any of those, as well.
THE COURT: Do you want — you’re objecting in advance? Is that what you’re doing?
[DEFENSE COUNSEL]: I assumed yesterday when they were speaking about statements coming in that they had also included Victoria’s statements. If not, I apologize and I’m wrong.
THE COURT: Let’s bring in the jury.

At trial, Deputy Avilis testified over a hearsay objection that A.C., in reporting the incident, said that her father had come into the bedroom, put his hand on A.C.’s shoulder, and told her she was pretty. Her father then laid her down on the bed, pulled her clothing to the side, and put his mouth on her “toto.” Her mother came into the bedroom, saw what was happening, and started screaming and hitting the father. No confrontation objection was made as required under Florida law. See Philmore v. State, 820 So.2d 919, 932-83 (Fla.2002); Hardwick v. Dugger, 648 So.2d 100, 107 n. 5 (Fla.1994); Sedney v. State, 817 So.2d 1074, 1075 (Fla. 5th DCA 2002);

The- two Chicago police officers who had taken Corona into custody in Illinois testified that Corona had confessed to the offense. Officer Malkowski testified that when he first placed Corona in his vehicle, Corona started saying in English: “I can’t believe I did it. Why did I do it? That’s my daughter.” Malkowski said that he read Corona his rights, but on the way to the police station, Corona initiated conversation and said over and over in English, “I can’t believe I did that. Why did I do it? That is my daughter. This is my family. I couldn’t help myself.” At the station, when Corona was interviewed by both Officer Malkowski and Trooper Ewald, he confessed that he had put his mouth on A.C.’s genital area under her clothing.

At trial, Corona denied ever touching his daughter sexually. He said his wife mistook a hug he gave his daughter for improper touching. He fled to Chicago because his wife was so upset. He admitted that while he was in Officer Malkowski’s patrol car, he kept saying, “I can’t believe I did it.” However, he said he meant that he could not believe he left his family in Florida.

Based on this evidence, the jury convicted Corona of capital sexual battery and he was sentenced to life in prison. Among the issues raised on appeal were that the trial court erred in admitting the hearsay statements of his daughter, A.C. The judgment and sentence were per curiam affirmed by this court in June 2003. Corona v. State, 853 So.2d 430 (Fla. 5th DCA 2003). Corona then filed a petition for certiorari review to the United States Supreme Court. The United States Supreme Court decided Crawford v. Washington in March 2004. Corona’s petition was thereafter granted and the case was remanded to this court for reconsideration in light of Crawford. See Corona v. Florida, 541 U.S. 930, 124 S.Ct. 1658, 158 L.Ed.2d 352 (2004).

In Crawford the Supreme Court held that a testimonial hearsay statement is inadmissible at trial unless the declarant is shown to be unavailable and the party against whom the statement is admitted had an opportunity for cross-examination. Chandler v. Crosby, 916 So.2d 728, 729 (Fla.2005). The case overruled earlier precedent that allowed a court to admit hearsay testimony against a criminal defendant if that testimony “bore particularized guarantees of trustworthiness.” See Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Corona argues that, even though Crawford was decided after his trial and state appeal, A.C.’s hearsay statements to Deputy Avilis were admitted in violation of Crawford, and he is entitled to have his conviction reversed based on Crawford. He correctly argues that Crawford must be applied to all “pipeline” cases — that is, all cases pending on review or not yet final when the decision was issued. See Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987) (all of Supreme Court’s decisions applying or announcing rules of criminal law must be “applied retroactively to all cases, state or federal, pending on direct review or not yet final, with no exception for cases in which the new rule constitutes a ‘clear break’ with the past.”). However, we must also consider the separate issue of whether his federal constitutional claim has been preserved for review in accordance with state law requirements. See Williams v. State, 773 S.W.2d 525 (Tex.Crim.App.1988) (en banc); see also Smith v. State, 598 So.2d 1063, 1066 (Fla.1992) (adopting Griffith rule for decisions made by the Florida Supreme Court provided defendant timely objected at trial if an objection was required to preserve issue for appellate review).

In Florida, it is well-settled that “[t]o be preserved for appeal, ‘the specific legal ground upon which a claim is based must be raised at trial and a claim different than that will not be heard on appeal.’ ” Spann v. State, 857 So.2d 845, 852 (Fla.2003) (quoting Rodriguez v. State, 609 So.2d 493, 499 (Fla.1992)). This rule has been applied in the context of pipeline cases, requiring a defendant to argue for a change in the law in order to preserve the issue for appeal. See, e.g., Cardenas v. State, 816 So.2d 724 (Fla. 1st DCA 2002) (change in law must be argued to trial court to preserve issue for review); Leveritt v. State, 817 So.2d 891, 896-97 (Fla. 1st DCA 2002) (same); Seaman v. State, 608 So.2d 71 (Fla. 3d DCA 1992) (same). Here, Corona made a generic argument pretrial that his “confrontation” rights were being violated, once the court determined that AC.’s hearsay statements were sufficiently reliable to be admitted. However, he never specifically argued, as did the defendant in Crawford, that the test for admission of this evidence, as outlined in Ohio v. Roberts, should be reconsidered. Instead, he primarily addressed the issue within the existing framework of Ohio v. Roberts, contending that the victim’s statements were unreliable hearsay. Then, at trial, Corona simply objected that the testimony was impermissible hearsay. These actions are insufficient to preserve the Crawford issue for review. See Mencos v. State, 909 So.2d 349 (Fla. 4th DCA 2005) (hearsay objection to infant victim’s statements did not preserve for review any challenge based on Sixth Amendment right to confront witnesses); Bunion v. State, 136 S.W.3d 355 (Tex.App.2004) (stating that hearsay objection and confrontation objection are not necessarily coextensive or synonymous and stating that specific Crawford objection had to be made, arguing for change in law). The State conceded the preservation issue on appeal, but the concession was in error and, accordingly, is not binding on this Court. Perry v. State, 808 So.2d 268, 268 (Fla. 1st DCA 2002) (“[I]t is the practice of Florida appellate courts not to accept erroneous concessions by the state.”).

We also decline to hold that the use of evidence in violation of Crawford is fundamental error, which would allow us to review the issue even in the absence of an objection. See J.B. v. State, 705 So.2d 1376, 1378 (Fla.l998)(constitutional issues may be considered for first time on appeal even in absence of objection where they constitute fundamental error). Fundamental error is error that “goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” Id. In Chandler, in refusing to give Crawford retroactive application, the Supreme Court of Florida explained that Crawford simply announced a new “procedural” rule which was designed to control the admissibility of testimonial hearsay, but was not designed to improve the accuracy of trials or even the reliability of evidence. It simply changed the manner in which reliability will be assessed. 916 So.2d at 730. See also Crawford, 541 U.S. at 60, 124 S.Ct. 1354 (“[Crawford ] commands, not that evidence be reliable, but that reliability be assessed ... by testing in the crucible of cross-examination.”). The failure to use the new standards outlined in Crawford can hardly be said to involve a denial of due process when the reliability of the evidence about which Corona complains was in fact assessed under Ohio v. Roberts, which has been satisfactorily used by the courts for more than twenty years. See also United States v. Solomon, 399 F.3d 1231, 1237-38 (10th Cir.2005) (finding a Crawford, error had not been preserved and refusing to address it in the absence of a determination that it was plain error).

Even if the issue were properly before this Court, Corona would not be entitled to relief. We agree with Corona that the statements involved in this case were testimonial, as they were elicited by Deputy Avilis at the Westgate Resort during questioning of A.C. which took place shortly after the incident. Bartee v. State, 922 So.2d 1065, 1070 (Fla. 5th DCA 2006) (statements made in response to questioning by police officer who is investigating a crime were testimonial under Crawford); Lopez v. State, 888 So.2d 693 (Fla. 1st DCA 2004) (same); see also Herrera-Vega v. State, 888 So.2d 66 (Fla. 5th DCA 2004), review denied, 902 So.2d 790 (Fla.2005) (“ ‘Testimonial’ statements principally are those made with the expectation that they will be used for the purposes of a criminal prosecution.”). However, the State met its burden of showing both that A.C. was “unavailable” for trial and that Corona had a prior opportunity to cross-examine the victim.

It is well-established that in order to prove that a witness is “unavailable” for the purposes of the Confrontation Clause, the State must show it made a good-faith effort to obtain a witness’s attendance at trial. Ohio v. Roberts, 448 U.S. at 74, 100 S.Ct. 2531; Barber v. Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1968). “Unavailability” is similarly defined under Florida’s hearsay statutes to include a declarant (e.g. A.C.) who:

[i]s absent from the hearing, and the proponent of the statement has been unable to procure the declarant’s attendance or testimony by process or other reasonable means.

§ 90.804(l)(e), Fla. Stat. (2001). The trial court’s determination that a witness is “unavailable” for confrontation purposes involves a mixed question of law and fact which this court reviews de novo, giving deference to the basic, primary or historical facts as found by the trial court. See Martinez v. Sullivan, 881 F.2d 921, 926 (10th Cir.1989) (citing Burns v. Clusen, 798 F.2d 931, 940-942 (7th Cir.1986)).

In the present case, the evidence showed that A.C. and her mother seemed cooperative with the State until shortly before trial, which necessitated a request for continuance by the State. Two days after receiving a continuance on July 17, 2002, the State on July 19, 2002 sought and was granted a Certificate of Interstate Extradition from Orange County circuit court. See § 942.03, Fla. Stat. (2001). However, Mrs.- Corona actively evaded numerous attempts to serve her at various locations and repeatedly hung up the telephone when called by investigators. The investigators’ efforts continued through August 2, 2002, at which point Salgado went to the Cook County courthouse and had material witness warrants issued for Mrs. Corona and A.C., which also could not be served. This was sufficient to demonstrate a good faith effort on the part of the prosecution to secure AC.’s attendance at trial, which began on August 5, 2002. Corona argues that the process was started too late to be meaningful, but it was the mother’s concerted efforts to avoid service, not the lateness of the efforts made by the State, that prevented the State from securing the presence of the victim and/or her mother at trial.

Corona also had a constitutionally adequate opportunity to cross-examine A.C., as required by Crawford. On June 7, 2002, Corona exercised the opportunity provided under the Florida Rules of Criminal Procedure to take a pretrial deposition of A.C. and Mrs. Corona, examining both extensively under oath. See Blanton v. State, 880 So.2d 798 (Fla. 5th DCA 2004); accord Liggins v. Graves, No. 4:01-CV-40166, 2004 WL 729111, at *7 (S.D.Iowa Mar. 24, 2004) (transcript of a witness’s deposition taken two years after murder and six months before trial admissible under Crawford); Howard v. State, 816 N.E.2d 948 (Ind.Ct.App.2004) (deposition of child victim in molestation case admissible at trial, although defendant not present during deposition, because the deposition had afforded an opportunity for cross-examination).

Corona argues at some length that he had a right to a face-to-face confrontation, as part of his confrontation rights that could not be satisfied by a deposition, since he had no absolute right to attend a deposition. See generally Fla. R.Crim. P. 3.220(h)(7) (“A defendant shall not be physically present at a deposition except on stipulation of the parties or as provided by this rule. The court may order the physical presence of the defendant on a showing of good cause.”). However, as in Blanton, there is nothing in the record to suggest that Corona asked for and was denied the right to be present when his daughter was deposed. Thus, we decline to address the extent of his right to engage in a face to face confrontation of the victim.

We are aware that two other district courts of appeal have now certified conflict with Blanton. See Belvin v. State, 922 So.2d 1046 (Fla. 4th DCA 2006) (en banc); Lopez, 888 So.2d at 693. However, we remain committed to our holding in that decision. Florida, unlike many state criminal systems and the federal courts, permits the taking of discovery depositions in criminal cases as a matter of course. See Fla. R.Crim. P. 3.220. The depositions cannot be used as substantive evidence, but the depositions can be used for impeachment. A defendant is therefore able to use the depositions to obtain evidence sufficient to satisfy a defendant’s confrontation rights. See Steinhorst v. State, 412 So.2d 332, 337 (Fla.1982)(“The proper purposes of cross-examination are: (1) to weaken, test, or demonstrate the impossibility of the testimony of the witness on direct examination and, (2) to impeach the credibility of the witness, which may involve, among other things, showing his possible interest in the outcome of the case.”).

Although a defendant has no absolute right to attend a deposition, the rule allows a defendant to be present for “good cause.” Seemingly, “good cause” would include exercise of a confrontation right. Moreover, review of the depositions of A.C. and Mrs. Corona reveal a thorough, detailed interrogation. Unless the “prior opportunity to cross-examine” repeatedly referred to by the court in Crawford means something other than the plain meaning these words convey, Corona certainly had a prior opportunity under Florida’s criminal practice to confront and to cross-examine his daughter.

Our view that a pretrial deposition can satisfy the “prior opportunity to cross-examine” requirement of Crawford will not adversely affect the confrontation rights of a defendant, who is on notice that he must use pretrial opportunities to cross-examine the victim or he will be deemed to have waived them. As was explained in a recent article:

Cautious defense counsel should consider Crawford fair warning that squandered opportunities may be viewed as waivers. In particular, if the prosecution produces a child for a preliminary hearing or a deposition, defense counsel might be well-advised to conduct as full a cross-examination as is possible given the state of discovery at the time if there is any doubt whether the child might appear at trial. While a couple of courts have questioned whether probable-cause preliminary hearings and discovery-driven depositions constitute adequate opportunities for confrontation, commentators are encouraging prosecutors to present witnesses at these hearings on the assumption that Crawford will tolerate the admission of their testimonial statements at trial if they later become unavailable.

Daniel E. Monnat, Paige A. Nichols, The Kid Gloves are Off: Child Hearsay After Crawford v. Washington: 30-Feb. Champion 18, 21 (January/February 2006).

Corona objects that A.C.’s deposition was not filed with this court until after the case had been remanded to this court by the United States Supreme Court. He contends that the deposition therefore cannot be considered as part of the record on appeal. However, on remand, this court allowed the State to supplement the record with a copy of this deposition in the interest of justice. Corona did not raise the Crawford issue until after trial, so the State was unable to complete the record regarding the Crawford issue. If defendant is to be allowed to raise this issue post-trial, then the State must be permitted to respond to the issue post-trial. We find no error in the procedures used in this case and no merit in any of the remaining issues raised by Corona on appeal.

Affirmed.

ORFINGER and MONACO, JJ., concur.

      . Deputy Avilis testified that "toto” meant vagina.

      . The confession was not taped.

      . Crawford’s rejection of Ohio v. Roberts was significant in the context of child hearsay offered in sexual abuse cases under section 90.803(23) because the Florida Supreme Court relied on Ohio v. Roberts in finding that the introduction of child hearsay under section 90.803(23), Florida Statutes, met the requirements of the confrontation clause in cases in which the victim did not testify at trial. See Perez v. State, 536 So.2d 206 (Fla. 1988). Prior to Crawford, evidence admissible under Ohio v. Roberts was almost by definition admissible under the confrontation clause. Crawford undermines this analysis since it acts to separate the confrontation analysis from the hearsay analysis.

      . Some courts have excused the preservation requirement in Crawford cases on the basis that Crawford represented an unforeseeable change in the law. See, e.g., People v. Cage, 15 Cal.Rptr.3d 846 (2004), review granted on other grounds, 19 Cal.Rptr.3d 824, 99 P.3d 2 (2004) (explaining that Crawford involves a "paradigm shift" in the Confrontation Clause analysis, and counsel could not have foreseen a "bombshell” like Crawford and holding that the issue did not have to be expressly raised in the trial court because the pertinent case law had changed so unforeseeably that it was unreasonable to expect trial counsel to have anticipated the change by making an objection). These cases are not consistent with Florida’s preservation requirements.

      . At various points in their briefs, the parties imply or state that there is a Confrontation Clause issue with respect to the testimony of both A.C. and her mother, Mrs. Corona. However, no witness testified to any incriminating statements by Mrs. Corona, and so the discussion is limited to the admission of A.C.'s statements.

      . The Confrontation Clause affords two types of protection to a criminal defendant — "the right physically to face those who testify against him, and the right to conduct cross-examination.” Coy v. Iowa, 487 U.S. 1012, 1017, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (quoting Pennsylvania v. Ritchie, 480 U.S. 39, 51, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987)). The right to physically face one's accuser was involved in Coy, in which the defendant had been charged with sexually assaulting two thirteen-year-old girls while they were camping out in the backyard of the house next door to him. At trial, the girls were permitted to testify behind a large screen based on a statute that imposed a presumption of trauma due to the abuse. The Court found that the use of this legislatively imposed presumption violated Coy's right of face-to-face confrontation. The Court left open for another day the question of whether there were exceptions to a defendant's right to face-to-face confrontation. 487 U.S. at 1021, 108 S.Ct. 2798. In Maryland v. Craig, 497 U.S. 836, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990), the Court later held that the right to physically confront the witnesses against oneself was not absolute, as it is not the sine qua non of the Confrontation Clause. Id. at 847, 110 S.Ct. 3157. Instead, the Court recognized that “the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant’s inability to confront the declarant at trial,” id. at 848, 110 S.Ct. 3157, and characterized the Clause as a "preference” that "must occasionally give way to considerations of public policy and the necessities of the case.” Id. at 849, 110 S.Ct. 3157 (quoting Mattox v. United States, 156 U.S. 237, 243, 15 S.Ct. 337, 39 L.Ed. 409 (1895)). In Craig, the Supreme Court thus approved a statutory procedure which, when invoked, permitted child victims of sexual abuse to testify at trial by means of a one-way closed circuit television, out of the presence of the defendant, if the court made the findings required by the statute.

      . See Fla. R.Crim. P. 3.220(h); State v. Green, 667 So.2d 756 (Fla. 1995).


text:
    Douglas D. CHUNN, P.A., Appellant, v. Jean B. McMILLAN, Finley L. McMillan and F & J McMillan, LLC, a Florida corporation, Appellees.
    No. 1D05-6028.
    District Court of Appeal of Florida, First District.
    May 2, 2006.
    Douglas D. Chunn of Douglas D. Chunn, P.A., Jacksonville, for Appellant.
    D. Andrew Byrne of Cooper & Byrne, PLLC, Tallahassee, for Appellees.
   PER CURIAM.

We reverse the trial court’s order denying the appellant’s ’motion to dismiss, abate, or transfer venue. The “Purchase & Sale Agreement,” which expressly governs the escrow transaction that is the subject of this litigation, contains a mandatory venue selection clause indicating that any litigation arising out of the agreement must be brought in Duval County, Florida. The trial court erred in not honoring this venue selection clause. Mgmt. Computer Controls, Inc. v. Charles Perry Constr., Inc., 743 So.2d 627, 631 (Fla. 1st DCA 1999). Accordingly, we reverse and remand for further proceedings consistent herewith.

REVERSED and REMANDED.

BARFIELD, DAVIS, and PADOVANO, JJ., concur.


text:
    SWAGO T-SHIRTS, INC., Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 4D05-2525.
    District Court of Appeal of Florida, Fourth District.
    May 3, 2006.
    Rehearing Denied June 13, 2006.

      Allen H. Libow, Jeffrey M. Glotzer, Traci Kratish, and Ashley A. Sawyer of Libow & Shaheen LLP, Boca Raton, for appellant.
    Charles J. Crist, Jr., Attorney General, and J. Clifton Cox, Assistant Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Affirmed. Goodman v. Martin Cty. Health Dep’t, 786 So.2d 661 (Fla. 4th DCA 2001).

STONE, POLEN and FARMER, JJ., concur.


text:
    Cedric Samuel DENSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-560.
    District Court of Appeal of Florida, Third District.
    May 3, 2006.
    Cedric Samuel Denson, in proper person.
    Charles J. Crist, Jr., Attorney General, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Cedric Samuel Denson appeals from the summary denial of his motion to correct a scrivener’s error. We will treat the original petition as a motion to correct a sentence pursuant to Florida Rule of Criminal Procedure 3.800(b). See Thomas v. State, 763 So.2d 316 n. 1 (Fla.2000)(“It is clear that the defendant or the State may seek to correct a scrivener’s error by filing a motion to correct sentence pursuant to Florida Rule of Criminal Procedure 3.800(b).”).

On appeal from a summary denial, this court must reverse unless the post-conviction record shows conclusively that the appellant is entitled to no relief. See Fla. RApp.P. 9.141(b)(2)(A) & (D). Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings or for the attachment of record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: ORFINGER, J.

text:
    William Blake LANGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-96.
    District Court of Appeal of Florida, Fifth District.
    May 5, 2006.

      James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

William Blake Langford appeals from the denial of his motion to correct an illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. He contends that the trial court erred by utilizing a sentencing scoresheet that included 44 victim injury points, which were not based on any finding of the jury, in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We disagree and affirm, but certify conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005).

In October 1999, following a jury trial, Langford was convicted of attempted second-degree murder and aggravated battery with a deadly weapon, arising from an incident that occurred in April 1996. He was subsequently sentenced to concurrent terms of twelve years incarceration followed by ten years probation. On direct appeal, this Court determined that Lang-ford’s sentence for aggravated battery was illegal as it exceeded both the statutory maximum and the recommended guidelines range. We remanded the case for resentencing on the aggravated battery conviction. Langford v. State, 773 So.2d 108 (Fla. 5th DCA 2000). On remand, Langford was resentenced to a total of twelve years incarceration followed by three years probation.

In September 2004, Langford filed a rule 3.800 motion to correct an illegal sentence, arguing that pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), he was entitled to be resentenced under the 1994 sentencing guidelines. He also alleged that pursuant to Apprendi and Blakely, the revised sentencing scoresheet should not include the assessment of 44 victim injury points. At the hearing on his motion, Langford argued that victim injury points should not be included because the jury was not asked to make a factual finding as to the extent of the injury. The State conceded that Langford was entitled to relief under Heggs, but argued that Apprendi and Blakely should not be applied retroactively. The trial court agreed, finding that Apprendi and Blakely were not retroactive, and, therefore, did not apply. Accordingly, the 1994 sentencing scoresheet used at the Heggs resentencing included 44 victim injury points. The trial court resentenced Langford to 124.25 months for attempted second-degree murder and aggravated battery with a deadly weapon. Langford then filed an appeal.

While the appeal was pending, Langford filed a rule 3.800(b)(2) motion to correct sentencing error, contending that the trial court erroneously ruled that Apprendi and Blakely were not to be applied retroactively. He maintained that pursuant to Ap-prendi, Blakely, and United States v. Booker, 543 U.S. 220, 125 S.Ct. 738, 160 L.Ed.2d 621 (2005), the 44 victim injury points should not have been assessed on the sentencing scoresheet because it increased the maximum guideline sentence without a finding made by the jury respecting victim injury. The trial court entered an order denying his rule 3.800(b)(2) motion, and the appeal then proceeded.

The Florida Supreme Court has held that the decision in Apprendi is not retroactive. See Hughes v. State, 901 So.2d 837 (Fla.2005); see also Lester v. State, 923 So.2d 596 (Fla. 5th DCA 2006). Although Hughes held that Apprendi did not apply retroactively, it did not address the retro-activity of Blakely. However, the United States Eleventh Circuit Court of Appeals, along with the Second, Third, and Fourth District Courts of Appeal have found that Blakely is not retroactive. See, e.g., In re Dean, 375 F.3d 1287 (11th Cir.2004) (stating that “[rjegardless of whether Blakely established a ‘new rule of constitutional law’ ... the Supreme Court has not expressly declared Blakely to be retroactive to cases on collateral review”); Clark v. State, 903 So.2d 292, 293 (Fla. 3d DCA 2005) (holding that Blakely does not apply retroactively to cases on collateral review that became final prior to issuance of that decision); Burrows v. State, 890 So.2d 286, 286-87 (Fla. 2d DCA 2004) (holding that Apprendi and Blakely decisions do not apply retroactively on collateral review to sentences that became final prior to their issuance); McBride v. State, 884 So.2d 476, 478 (Fla. 4th DCA 2004) (holding that, like Apprendi “Blakely does not apply retroactively to cases on collateral review”). Langford’s convictions became final in 1999, pre-Blakely and pre-Apprendi Given that his challenge is based on Blakely, which is not retroactive, the trial court did not err in rejecting this claim.

We agree with Judge Kahn’s dissent in Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), that applying Blakely under these circumstances would be a retroactive application. Isaac, 911 So.2d at 815-16 (Kahn, J., dissenting). Accordingly, we align ourselves with Galindez v. State, 910 So.2d 284 (Fla. 3d DCA 2005), review pending, No. SC05-1341 (Fla. filed July 29, 2005), holding that Apprendi and Blakely do not apply retroactively to convictions that became final in 1999, even though resentenc-ing took place post-Apprendi due to a scoresheet error. See Thomas v. State, 914 So.2d 27 (Fla. 4th DCA 2005) (holding that Blakely did not apply to defendant’s conviction that became final in 2002, pre-Blakely but post-Apprendi even though resentencing took place subsequently on a scoresheet error). But see Morrow v. State, 31 Fla. L. Weekly D466, — So.2d -, 2006 WL 317016 (Fla. 1st DCA Feb. 13, 2006) (holding that Apprendi and Blakely applied retroactively to departure sentence that was not final at time Ap-prendi was decided).

AFFIRMED; CONFLICT CERTIFIED.

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


author: VAN NORTWICK, J.

text:
    Amber RUSSELL, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D05-5150.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Paolo Annino, Mary Clark and Carol Gregg, Tallahassee, Florida State University College of Law, Children’s Advocacy Center, Tallahassee, for Appellant.
    Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A., Fort Lauderdale; Andrea Moore, Executive Director, Florida’s Children First, Coral Springs; Bernard P. Perlmutter, Director and Assistant Clinical Professor, UM School of Law Children & Youth Law Clinic, Coral Gables; Hubert Grissom, General Counsel and Gayle Miller, Senior Attorney,- Advocacy Center for Persons With Disabilities, Inc., Tampa; Jodi Siegel, Executive Director, Southern Legal Counsel, Inc., Gainesville; Anne Swerlick, Deputy Director, Florida Legal Services, Inc., Tallahassee, for Amici Curiae.
    Dennis W. Moore, General Counsel and Thomas Wade Young, Appellate Counsel, Statewide Guardian ad Litem Office, Orlando, for Amicus Curiae, Florida Guardian Ad Litem Program.
    Katie George, District Legal Counsel and Eric D. Schurger, Assistant District Legal Counsel, Department of Children and Families, Local Counsel for the Agency for Persons With Disabilities, Pensacola, for Appellee.
   VAN NORTWICK, J.

Amber Russell, a developmentally disabled child in Florida’s foster care system, appeals a final order denying her placement on the so-called “crisis tier” of the waiting list for services through the developmental services home and community based waiver program that is administered by the Florida Agency for Persons With Disabilities (Agency). It is undisputed in this record that Amber meets one of the three alternative grounds for receiving crisis services because she is presently a danger to herself or others. We reject the Agency’s contention that it was not required to grant Amber “crisis status” solely because she is currently in foster care and could theoretically receive the developmental services she requires through the family safety program within the Florida Department of Children and Families (DCF). Although witnesses for the Agency testified that the services needed by Amber “should” be available through the DCF family safety program, it is undisputed that the developmental services she needs are not actually available through any DCF program. The Agency has cited no legal basis for its contention that the family safety program must provide the needed developmental services and, as a result, Amber is not eligible for the crisis tier. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Statutory and Regulatory Background

Medicaid is a joint health care program of the federal and state governments established pursuant to ' Title XIX of the Social Security Act to provide medical assistance to low-income individuals and families. 42 U.S.C. § 1396 et seq. The general guidelines for the Medicaid program are set forth in the federal statutes and regulations and are adopted into specific state laws and rules in each state. 42 U.S.C. § 1302. In each state, a “single state agency” is responsible for administering the Medicaid program. 42 C.F.R. § 431.10. In Florida, the Agency for Health Care Administration (AHCA) is designated as the Florida state agency authorized to make payments to qualified providers for medical assistánce and related services on behalf of eligible individuals. See § 409.902, Fla. Stat. (2005). Foster children, like Amber, are eligible for Medicaid benefits. § 409.903(4), Fla. Stat. (2005). The record reflects that, pursuant to an interagency agreement, at the time of Amber’s application DCF determined Medicaid eligibility for its clients.

Medicaid is the primary funding source for services for income-qualified developmentally disabled individuals, such as Amber. In Florida, payments for optional Medicaid services may be made on behalf of income-qualified persons in need of care in a licensed intermediate care facility for the developmentally disabled. § 409.906(15), Fla. Stat. (2005). To better utilize Medicaid funding, however, states are moving developmentally disabled individuals from institutions to home and community settings. See generally, Jane Perkins & Randolph T. Boyle, Symposium. Addressing Long Waits for Home and Community Based Care Through Medicaid and the ADA, 45 St. Louis U. L.J. 117, 119 (2001). The Medicaid Act allows states to obtain waivers from the federal Department of Health and Human Services which excuse compliance with particular statutory and regulatory requirements and permit states to implement waiver programs that allow Medicaid payments for services for developmentally disabled persons in their home or community. Id. at 125; see 42 C.F.R. § 440.180. Mirroring the federal regulation, AHCA’s rules authorize the developmental services waiver as a home and community based waiver program. See rule 596-8.200(9)(e), Fla. Admin. Code. This AHCA rule incorporates by reference the Developmental Services Waiver Services Florida Medicaid Coverage and Limitations Handbook (Handbook), which contains a description of various criteria and procedures applicable to the waiver program. Id. at rule 596-8.200(12). Relevant excerpts from the Handbook are a part of the record of this proceeding.

“The goal of these waiver programs is to provide services to persons at home or in the community and thereby avoid placing them in a hospital or nursing facility ... [These] waivers can be used to access Medicaid services that are normally not available to Medicaid beneficiaries, including [among other things] habilitation.... ” Perkins & Boyle, 45 St. Louis U. L.J. at 125. Because of the high demand for these waiver services, many states have long waiting lists. Id. at 126. The record reflects that, at the time that DCF found Amber eligible for the waiver, Florida’s waiting list for the developmental services waiver program included approximately 14,000 people.

To receive the home and community based care waiver, an individual must be determined eligible for the waiver. The individual then is placed on a waiting list. Pursuant to the Handbook, certain individuals who are deemed to be “in crisis” may be placed at the top of the waiting list. The Handbook refers to this “crisis” status as the top tier of the waiting list, and persons on this crisis tier are allowed to be served more quickly.

The tests for determining crisis status are set forth in a document known as the “crisis identification tool,” which is a part of the record here. The crisis identification tool sets forth three factors for determining whether an individual is in “crisis” and, therefore, requires immediate placement: danger to self or others; homelessness; and caregiver unable to give care. Once an individual is placed on the crisis waiting list, a determination must be made as to her needs compared to the needs of others in crisis. First priority on the crisis list is given to those individuals who are homeless and require emergency placement. Second priority is given to persons who are in danger of confirmed abuse or neglect or are exhibiting behaviors that will result in harm to that person or others. Third priority is given to any individual whose caregiver is no longer able to provide care.

Appendix F of the Handbook defines the requirement for what is referred to as the second priority crisis status, as follows:

Presently, the individual is either in danger because of confirmed abuse or neglect, or is exhibiting behaviors that
• result in harm to the person or others that, in turn, creates a life-threatening situation for the person or others, or
• will result in bodily harm to the person or others that will require emergency medical care from a physician if waiver services are not provided immediately.

Handbook F.5. Once an individual is determined to be in crisis because she is a danger to herself or others, the Handbook lists thirteen elements which must be examined when placing an individual in order of severity of crisis.

Factual and Procedural Background

Amber, who was born in 1991, is developmentally disabled with a full scale IQ of 64. She has been diagnosed with post-traumatic stress disorder, attention deficit hyperactivity disorder, borderline intellectual functioning, adjustment disorder with mixed disturbance of emotions and conduct, reading disorder, disorder of written expression and mathematics disorder. After a traumatic childhood, during which she was the victim of physical and sexual abuse, the parental rights of both her parents were terminated in 2001. Since then, she has resided in thirteen different foster homes and residential facilities. There is no dispute in this record that Amber exhibits patterns of dangerous behavior. For example, it is alleged that she killed a cat or kittens at one of her foster homes, and on another occasion she cut herself with glass. She has a history of running away, threatening suicide, and using poor judgment in dangerous situations. She has destroyed personal property which has resulted in charges against her and in her arrest. She has been committed for inpatient psychiatric treatment five times pursuant to the Baker Act. See § 394.451 et seq., Fla. Stat. (2005).

On November 12, 2003, Amber’s family safety program caseworker applied for a developmental services home and community based waiver seeking intensive behavioral services, nonresidential support services, and companion services for Amber. It is undisputed that Amber is eligible for this waiver because she is a danger to herself or others. The DCF developmental disabilities program determined that Amber was eligible for the waiver services and, on February 12, 2004, placed her on the waiting list for the waiver as number 14,182. As discussed above, persons new to the developmental disabilities program may only be served in order of placement on the waiting list, unless the applicant is determined to be in crisis.

Sharon Stephens, a support coordinator for the developmental disabilities program, completed the crisis identification tool on behalf of Amber. Ms. Stephens noted that Amber fell into the category of danger to self or others, and that she was in need of additional services. “Amber is in need of services that will assist her with maintaining her self-control and coping with environmental situations that occur in her life. She would benefit from Behavioral Analysis, Non-Residential Supports and Services, and Companion services.”

Tony Gelabert, a board certified behavioral analyst for the developmental disabilities program, also advised the DCF central office that Amber met the “crisis” criteria. Mr. Gelabert advised: “I agree that this child has the very real potential to seriously jeopardize her own safety and that she meets the definition of danger to self and others.” Amber’s case was then referred to the central office of DCF.

It is undisputed that DCF’s developmental disabilities program central office did not examine the extent to which any of the crisis criteria applied to Amber or how the family safety program was serving her. The DCF central office crisis team determined that, because Amber is in foster care, she has sufficient services available to her. Marianne Ferlazzo, program administrator, recommended that Amber not be granted crisis status because “Family Safety needs to serve.” On April 7, 2004, the developmental disabilities program issued a letter of denial to Amber stating that she had not been determined to be in crisis and that she had been placed on a waiting list to receive a Medicaid waiver.

Amber requested a fair hearing pursuant to 42 C.F.R. § 431.200. A fair hearing was held before a hearing officer from DCF’s Office of Appeal Hearings. See § 120.80(7) and Fla. Admin. Code Rule 65-2.042.

At the hearing, Amber’s guardian ad litem, Kelly Bennett, testified that the foster care system could not deal with someone with Amber’s level of complexity. Her caseworker, Amanda Jones, testified that, although Amber receives certain services through the family safety program, these services are not sufficient. Moreover, she felt that Amber needed to be placed in a facility with other children at her level. She said she had “no placements for kids who are as low functioning as she is.” She opined that Amber “needs to have intensive individual therapy on a daily basis to work through her issues and ... we just were unable to provide that for her.” Ms. Jones, who formerly was employed by DCF in the family safety program, currently works for the Children’s Home Society in Tallahassee, Florida, which has a contractual arrangement with DCF to administer foster care services as a community based care (CBC) provider. See § 409.1671, Fla. Stat. (2005). She acknowledged an ability to access psychological services but said “we don’t have the funding to make sure she gets the services she needs.” Mr. Gela-bert testified, disagreeing with Ms. Jones’ opinion that Amber’s residential needs could not be satisfied by the family safety program. However, he agreed that she needed additional behavior analysis services because she is a danger to herself or others, which he felt placed her in crisis. He opined that Amber meets the definition of “danger to self and others.”

DCF’s witness, Ms. Ferlazzo, testified that, in recommending denial of crisis status, she considered the fact that Amber was in the foster-care system and already entitled to a number of services. She expressed doubt that a foster child had ever been granted crisis status. She said it was not part of the crisis process to check whether the family safety program was adequately caring for Amber.

The hearing officer affirmed the denial' of crisis status. On appeal, this court reversed and remanded the proceeding to DCF to issue a corrected order addressing the criteria for second priority status in the Handbook. Russell v. Dep’t of Children and Family Servs., 910 So.2d 881 (Fla. 1st DCA 2005) (Russell I). In the meantime, the Agency was created, supra note 1, and took responsibility for the developmental services waiver. The Agency was substituted for DCF and is now the appellee.

On remand, the hearing officer accepted Ms. Jones’ testimony that “Family Safety has not and cannot provide the services” that Amber requires. However, the hearing officer misconstrues Ms. Jones’ testimony to be that it was the responsibility of the Children’s Home Society to provide those services. In her conclusions of law, the hearing officer compounds that mistake by concluding “[tjhere has been testimony that the Foster Care System must meet [Amber’s] services needs,” when there was no such testimony in the record. The hearing officer concluded that Amber is in need of services “in excess of those that are provided by the State plan Medicaid [sic].” The hearing officer found that “[t]he evidence indicated the petitioner could benefit from services she is not presently receiving, such as behavior analysis, non-residential supports and companion services.” Nevertheless, without a finding of fact or citation of authority, the hearing officer rejected the concept that Amber could receive different services in the waiver program than she was presently receiving.

The hearing officer found that Amber was eligible for services through the family safety program, Medicaid state plan and the Department of Education. The hearing officer commented that Medicaid is the “payer of last resort” pursuant to federal and state law. Accordingly, she opined that “Developmental Disabilities does not typically serve foster care children under the age of 18 for these reasons.” However, once Amber turns 18, the hearing officer found she could be served under the developmental disabilities waiver because she would “have aged out of the Foster Care System.”

Turning to this court’s requirement in Russell I that the hearing officer address the Handbook’s required criteria for second priority status, see Russell I, 910 So.2d at 881, the hearing officer respectfully disagreed with this court that these criteria were pertinent to the initial determination of crisis status. Specifically, the Handbook contemplates two waiting lists: the standard waiting list where individuals are served in order based on the date they apply when slots become available based on funding; and the crisis waiting list, where individuals who are determined to be in crisis are served based on the severity of their needs compared to the needs of others in crisis.

As discussed above, the Handbook lists thirteen elements which must be examined when determining if an individual should be given second priority crisis status. While we agree with the hearing officer that the criteria used to determine whether an individual should be given second priority status are not strictly applicable to the initial determination of crisis, we believe these criteria are instructive when applying the crisis identification tool. These thirteen criteria are as follows:

(i) With immediate provision of waiver services, the health and safety of this individual or others in the household are at risk.
(ii) The frequency and intensity of the injury to self or others is high.
(iii) It appears the individual or others are at high risk for serious injury, or permanent damage.
(iv) There is reasonable possibility for fatal or life threatening injury.
(v) No other supports or services are available to assist in addressing the behaviors.
(vi) Other reasonable behavioral assessments and interventions have been attempted but have proven ineffective.
(vii) The relative ages, sexes, and sizes of the aggressor and the individuals subject to his or her aggression place the individuals subject to the aggression at great risk.
(viii) The caregiver has insufficient ability or capabilities to handle the individual.
(ix)The age or disability of the individual or caregiver exacerbates the problem.
(x) There has been law enforcement involvement.
(xi) Protective Services has been involved.
(xii) There has been documented injury to self or others requiring medical treatment.
(xiii) Individual requires services of greater intensity ...

The hearing officer examined each of these criteria and determined that, with the exception of (v), they each applied to Amber’s situation. The hearing officer concluded, however, that Amber was not in crisis solely because “she has the potential to have her needs met through the Foster Care Program.” (emphasis supplied).

Issue on Appeal

We must start with a restatement of the obvious: it is undisputed that Amber is emotionally disturbed and she is developmentally disabled. We are not concerned with services that can be provided to her to treat any emotional disturbance she may have, but rather services that she requires because she is developmentally disabled. The record reflects that the Medicaid waiver services she seeks will provide such services as habilitation services, which are designed to allow her to be independent. Foster children like Amber are particularly in need of services “because they are more likely than others to have suffered neglect or abuse and to have behavioral health care needs.” Perkins & Boyle, 45 St. Louis U. L.J. at 121.

Next, we recognize that the Agency’s Medicaid waiver funding is limited and must be carefully allocated to better meet the needs of all of Florida’s citizens. The issue here, however, does not involve funding limitations. We are not deciding whether the Agency must provide Amber with any specific waiver services. The issue before us is whether she can be denied crisis status as a matter of law because she is a foster child entitled to certain services under chapter 409, Florida Statutes.

Addressing this issue, the Agency concedes that Amber is a danger to herself or others, but argues that Amber can be served through the services available under chapter 409 (foster care services) and chapter 394 (providing for comprehensive child mental health services), and therefore it is not necessary to provide services under chapter 393 (The Developmental Disabilities Prevention and Community Services Act).

Amber responds that she presented un-contradicted evidence that the services she needs have not been provided and are not otherwise available from DCF, which administers services under chapter 409 and the Comprehensive Child and Adolescent Mental Health Services Act, sections 394.490 through 394.497. This evidence shows that Amber has not received the services she needs in the thirteen foster homes and residential programs in which she has been placed and that she will not receive the services she needs from the family safety program. Amber argues persuasively that there is no legal or factual basis for the Agency’s position that the services she needs “should be available” from DCF.

Analysis

Section 20.197(2), Florida Statutes (2005), provides:

The agency shall be responsible for the provision of all services provided to persons with developmental disabilities pursuant to chapter 393, including the operation of all state institutional programs and the programmatic management of Medicaid waivers established to provide services to persons with developmental disabilities.

This enabling legislation vests the Agency with the sole authority to administer and distribute federal matching funds, including waiver funds, for the services it provides. “The agency shall be a separate budget entity not subject to control, supervision or direction by [DCF] ...” § 20.197, Fla. Stat. (2005). In the same legislation creating the Agency, the legislature amended section 408.302(1) ■ to require AHCA to enter into an interagency agreement with DCF and the Agency “to assure coordination and cooperation in serving special needs citizens.” Ch.2004-267, § 84 at 1140, Laws of Fla.

The statutory framework makes clear that the Agency for Persons with Disabilities is the agency mandated to provide services to the developmentally disabled. Section 393.13, Florida Statutes (2005), “The Bill of Rights of Persons Who are Developmentally Disabled,” declares the legislature’s intent that the “system of care provided to individuals who are developmentally disabled must be designed to meet the needs of the clients as well as protect the integrity of their legal and human rights.” § 393.13(2)(a), Fla. Stat. (2005). Section 393.063, Florida Statutes (2005), defines “client” as “any person determined eligible by the Agency for services under this chapter.” § 393.063(4), Fla. Stat. (2005).

No one questions that Amber is developmentally disabled as contemplated by chapter 393. She is seeking behavioral services, and behavioral services for developmentally disabled individuals are available under chapter 393, section 393.066(3)(m), Florida Statutes (2005), subject to the limitation that the Agency is required to provide services only “within available resources.” § 393.13(3)(e), Fla. Stat. (2005). Finally, and most important to the resolution of this case, section 393.064(1), Florida Statutes (2005), requires the Agency to engage in an inter-agency effort to develop plans which have the potential to correct or reduce the severity of developmental disabilities.

Turning now to chapter 409, which governs the provision of foster care services, the parties have not cited a statutory provision, and our separate research has not found a provision, which designates DCF and its contractors as the exclusive providers of all the necessary services that foster children, such as Amber, need. In fact, the language of applicable statutes indicates just the opposite. For example, section 409.1451(l)(a), Florida Statutes (2005), requires DCF to provide “independent living transition services” to assist older children in foster care to “make the transition to self-sufficiency as adults;” however, the services provided under this statute do not address the needs of children with developmental disabilities, like Amber. See § 409.1451(4). Further, while section 409.165(1) requires DCF to provide psychiatric residential treatment facilities “within funds appropriated,” other than Amber’s Baker Act commitments, which did not address Amber’s developmental disabilities, the record reflects no evidence that services for seriously developmentally disabled foster children are actually available, and the record shows no attempt to place Amber in a facility that could address her needs.

Importantly, in chapter 409, the legislature contemplated that there should be a joint effort by the state agencies to serve children like Amber who are developmentally disabled and emotionally disturbed. The legislature acknowledged that the child welfare system is disjointed and that a lack of collaboration exists among different state agencies. § 409.1673(l)(d) and (e), Fla. Stat. (2005). Thus, the legislature specifically directed that there should be a plan for interagency collaboration to provide the array of services required to meet the needs of dependent children in the care of DCF. § 409.1673(3)(c), Fla. Stat. (2005).

While the Agency maintains that Amber’s extraordinary needs can be met by her Baker Act placement in inpatient residential treatment facilities, we cannot agree. First, the undisputed evidence in the record before us shows that repeated Baker Act placements have not addressed Amber’s needs. Further, the legislature expressly recognizes that placement in inpatient residential facilities could be avoided if comprehensive residential service options were made available. § 409.1673(l)(c), Fla. Stat. (2005). Moreover, the Agency’s reliance on Baker Act proceedings to solve Amber’s array of problems is not supported by the statutes. Certainly, child mental health services are available pursuant to the Comprehensive Child and Adolescent Mental Health Services Act. DCF is only required, however, to serve children with serious emotional disturbances “to the extent that resources are available.” § 394.493(1) and (3). Here, there is a complete absence of record evidence that would show that the necessary services are available to Amber under this Act.

Turning next to the Agency’s contention that it was the Children’s Home Society’s duty to serve Amber’s developmentally disabled service needs, we can discern no such legislative intent. Section 409.1671, which outsources foster care to community based providers, requires the provision of “related services,” but section 409.1671(l)(a) does not require a CBC, like Children’s Home Society, to provide all necessary services to its clients. Without contradiction from the Agency, amici curiae state in their brief that

[w]hen the CBCs entered into contracts to assume DCF’s responsibility to serve foster children, they did so with the understanding that developmental disability services were funded via the existing Medicaid Waiver program. CBCs were not given supplemental funds to provide developmental services to the foster children. Nor were they told that [the Agency] would refuse to provide Medicaid funds for developmental services used by foster children.

There is no evidence in this record that services through the waiver program duplicate services available in the foster care program. Amber undeniably qualifies for the waiver program. The only issue is how quickly she will receive those services compared to other children. The Agency has not allowed her a higher place on the waiting list solely because she is receiving some services as a foster child. But those foster care services are not the same as services she is eligible to receive pursuant to the waiver program, and the foster care services are not addressing her developmental disability. The Florida Legislature, through its statutory scheme, has not penalized foster children by blocking them from receiving the care they need. It has provided the children in the state’s care the same opportunity as other children. Thus, in short, the Agency’s ruling is contrary to the legislature’s intent.

We do not purport to understand what services should be directed to Amber’s emotional disturbance and what services should be directed to her needs as a developmentally disabled child. However, it is clear to us that the legislature has directed DCF and the Agency to coordinate a plan to serve Amber’s complex needs within the available resources of both agencies.

As repeatedly pointed out in this opinion, the Agency has conceded that Amber is a danger to herself or others. There is no legal or factual basis for the Agency’s position that the services she is requesting are availablé from another source or are actually provided by DCF. Therefore, we hold that Amber qualifies to be placed on the second priority of the crisis tier of the waiting list. We remand for the Agency to determine her placement within the second priority crisis list. In making that placement, the Agency may not rely upon the criterion that “other supports or services are available to assist in addressing [Amber’s] behaviors” as a factor in that placement, because neither the facts nor the law support such a determination.

REVERSED and REMANDED for further proceedings consistent with this opinion.

ALLEN and POLSTON, JJ., concur.

      . At the time of Amber’s denial of crisis status, the family safety program was the unit of Department of Children and Families responsible for caring for foster children. At the same time, the developmental disabilities program was the unit of Department of Children and Families responsible for administering the Medicaid waiver. However, in 2004, the Florida Legislature created the Agency for Persons With Disabilities and assigned that agency responsibility for the developmental disabilities program and the Medicaid waiver eligibility. See ch.2004-267, § 87 at 1141-42, Laws of Fla.

      . This case was remanded to the Office of Appeal Hearings of DCF, which apparently retains jurisdiction to hold fair hearings of the Agency's actions under Florida Administrative Code Rule 65-2.042. Thus, although the Agency is the party appellee, the order under review is the order of the Office of Appeal Hearings of DCF. The procedural posture of this appeal is not raised by either party.

      . The Medicaid statute provides that the state administering agency must require legally liable third persons or parties to pay for care and services before expending Medicaid funds for those services; or, if Medicaid funds have already been expended, then the state must recover reimbursement for that assistance to the extent of the third party liability. See 42 U.S.C. § 1396a(a)(25). Although the hearing officer briefly commented on this "payer of last resort” rule, on appeal the Agency does not attempt to establish that the family safety program is a legally liable third party for purposes of this rule. Thus, we do not address the payer of last resort issue,

      . We find this reasoning to be curious in light of the fact that Amber has been placed on the waiver list. It is the "crisis status” which she has been denied. The Agency has at no time asserted that Amber is not eligible for waiver services.

      . Section 409.1673(l)(f) provides:
      It is necessary to promote the design and operation of an objective assessment in case planning process; to develop a community continuum of service for children in the custody of the department who require alternate care under chapter 39 or this chap-ler by ensuring that alternate care placements are based on the needs of the child and the family; and to encourage innovation in significantly restructuring local alternate care systems to be more flexible and efficient in providing protection and treatment services for dependent children.