author: PER CURIAM.

text:
    Inquiry Concerning A Judge, No. 05-131, re Brandt C. DOWNEY, III.
    No. SC05-2228.
    Supreme Court of Florida.
    July 13, 2006.

      Honorable James R. Wolf, Chairman, Tallahassee, FL, Brooke S. Kennerly, Executive Director, Tallahassee, FL, Marvin E. Barkin, Interim General Counsel, Tampa, FL, John R. Beranek, Counsel to Hearing Panel, Tallahassee, FL, E. Lanny Russell and Scott B. Kalil of Smith, Hulsey and Busey, Special Counsel, Jacksonville, FL, for Florida Judicial Qualifications Commission, Petitioner.

      Judge Brandt C. Downey, III, pro se, Clearwater, FL, for Respondent.
   PER CURIAM.

We have for review a stipulation between the Judicial Qualifications Commission (“JQC”) and Judge Brandt C. Downey, III, as well as the JQC’s recommendation that Judge Downey be publicly reprimanded for violating the Code of Judicial Conduct. We have jurisdiction. See art. V, § 12, Fla. Const. We accept the stipulation and approve the JQC’s recommendation.

FACTS

On December 20, 2005, the JQC filed a notice of formal charges against Judge Downey. This notice charged Judge Dow-ney with three counts of ethical violations for conduct that occurred between 2002 and 2005. Judge Downey was charged with violating canons 1, 2, and 3B(5) of the Judicial Code of Conduct. In relevant part, the JQC’s notice of formal charges set forth the following:

I.Habitual viewing of pornography from the courthouse computer[.]
1. Beginning on or about the year 2002, and continuing through 2005, you engaged in the practice of viewing pornographic Internet websites from the computer in your chambers.
2. Your pervasive practice of viewing pornography from the computer in your chambers resulted in frequent computer viruses infecting your computer. Courthouse anti-virus software quarantined the viruses on your computer which in turn, had to be removed by technology staff members either from a remote location or in person by reporting to your office to remove the viruses from your computer.
3. As a result, on at least two occasions, courthouse personnel were unwittingly exposed to pornographic images when they reported to your office to physically remove viruses from your computer. In addition, on at least one known occasion, your Judicial Assistant was also exposed to a pornographic website image while present in your office during a computer repair service call.
4. You repeatedly ignored e-mail warnings such as the one below from court technology staff, advising you of the potential risk to the entire computer network due to your viewing of certain websites:
“Judge Downey, again our Antivirus Server alerted our staff that your computer has multiple viruses. One of the technology staff members will either stop by to clean the virus or we may be able to clean the virus from the server. Please understand that viruses can be found in emails or Internet sites. Many Internet sites carry viruses and just by clicking on a link or popup window could infect your computer. Please be careful about the sites you visit and realize that the virus you encounter could infect our entire network ....”•

(Emphasis added).

These acts, if they occurred as alleged, were in violation of Canon, 1, [sic] by failing to maintain a high standard of conduct to preserve the integrity of the judiciary. Furthermore, these acts, if true, violate Canon 2A by eroding the public confidence and integrity in the judiciary through your pervasive conduct of viewing pornography in your chambers and thereby threatening to infect the entire courthouse computer system with unwanted computer viruses.

II. Failure to disclose a juror written communication.

5. In the case of State v. Wilson, (Case No.:CRC-03-00026CFANO-K) you failed to advise the lawyers representing the State of Florida and the defendant that you had received a written communication from a juror during the trial. The handwritten note from the juror allegedly advised you that said juror was concerned about a fellow juror sleeping during the trial and was further concerned about the fairness of the proceedings due to the sleeping juror.

6. You failed to disclose the note to the lawyers even after defense counsel, who independently learned of the sleeping juror, requested a continuance of the sentencing hearing to explore legal options on behalf of Mr. Wilson. In addition to denying the continuance, you also conducted legal research and cited to Foraker v. State, 731 So.2d 110 ([Fla.] 5th DCA 1999)[,] in support of your decision to proceed with the sentencing of Mr. Wilson notwithstanding the sleeping juror. In so ruling, you stated that there was insufficient evidence of the sleeping juror to require a hearing. You made this representation knowing that you had direct evidence in the form of a juror communication evidencing that a fellow juror had in fact seen the juror sleeping during the trial.

7. Defense counsel learned about the juror communication after the courtroom bailiff who received the note from the juror reported the existence of the note to the State Attorney’s Office who in turn notified defense counsel.

8. You claim to have destroyed the note instead of producing the note to the lawyers or placing the note in the court file. The withholding of the juror communication in. this case led to your disqualification.

The acts as described above if they occurred as alleged, are in violation of Canon 1, by failing to uphold the integrity and independence of the judiciary[,] and Canon 2, by failing to comply with the law in a manner that promotes public confidence in the integrity and impartiality of the judiciary.

III. Improper contact and communication with female attorneys.

9. During 2003 through 2004 you displayed an inordinate interest in a first year female assistant state attorney assigned to Judge Linda R. Allan’s division. As such, you repeatedly sent quick conference computer messages to Judge Allan regarding said assistant state attorney’s appearance. You also asked Judge Allan to “pass” a case to you involving this same prosecutor. Further, you asked Judge Allan to advise the prosecutor that her case was coming to your division so that you could in turn, watch her reaction to the news on your computer screen. In addition, you sat in the audience and watched said assistant state attorney in trial on more that one occasion]!]

10. On another occasion you asked said assistant state attorney to approach the bench while court was in session and told her she “looked nice today.” In addition, you approached her in front of other people and told her she “looked pretty.”

11. Furthermore, you also telephoned the assistant state attorney in her office and invited her to have lunch or dinner with you, to which she declined.

12. Your behavior toward said assistant state attorney embarrassed her and caused others to mock and ridicule her. The acts as described above if they occurred as alleged, are in violation of Canon 1 and 2A as outlined above and in violation of Cannon [sic] 3B(5) requiring that a judge perform judicial duties without bias or prejudice including but not limited to bias or prejudice based on gender.

13. Furthermore, your inappropriate conduct toward the unnamed assistant state attorney described above is not an isolated incident. On March 23, 2005, you asked another female attorney to approach the bench while court was in session to engage in a personal conversation with her. In addition, you authored an e-mail message later that same day wherein you stated: “IT WAS NICE SEEING U IN COURT LOOKING SO PRETTY — LOOK FORWARD TO SEEING U SOON IN COURT, OR OUT — BEST REGARDS, JUDGE D[.]”

14.Moreover, on April 6, 2005[,] you sent the same female attorney the following message: “WAS GREAT SEEING U LAST NIGHT AND AGAIN TODAY TOO — U LOOKED GOOD ENUF TO — OH WELL, WISHFUL THINKING — C U SOON I HOPE[.]”

• The acts as described above' if they occurred as alleged, are in violation of Canon 1, 2A and Cannon [sic] 3B(5) as outlined in paragraph 12 above.

On May 26, 2006, the JQC and Judge Downey presented a stipulation to this Court in which Judge Downey admitted count I but denied counts II and III. In addition to receiving a public reprimand, the stipulation requires that Judge Dow-ney (1) retire from judicial office at the end of his term on January 1, 2007; (2) not serve as a senior judge; (3) provide a formal letter of apology; (4) continue to have restricted email and internet access; (5) continue his psychological counseling; and (6) not file for reelection and never again seek election or appointment as a judge. The stipulation also provides that Judge Downey will sign a letter of resignation that will take effect immediately should the JQC find probable cause to charge him with any additional ethical violations or should he fail to abide by the other terms of the stipulation. Finally, the stipulation recites the JQC’s disciplinary recommendations. In a separate filing, the JQC presented its recommendations and findings specifying that Judge Downey has been found guilty of count I. Neither the stipulation nor the JQC’s separate filing explains why counts II and III are not being pursued further or why the JQC considered the recommended discipline appropriate. These deficiencies in the filings prompted this Court to order the JQC and Judge Downey to appear before it on June 29, 2006, for further inquiry.

At this appearance, the JQC explained that Judge Downey’s long, unblemished record of service as a county and circuit court judge from 1984 until 2002 weighed heavily in its decision to enter into the stipulation. Significantly, the JQC found that Judge Downey’s conduct had not influenced his judicial actions and that, “based upon [his] long term of otherwise effective judicial service and the appropriate limitations on that service” that were imposed subsequent to the alleged misconduct, his conduct did not demonstrate a present unfitness to hold office. The JQC also considered the fact that, pursuant to his agreement with Chief Judge David A. Demers, Judge Downey voluntarily sought psychological counseling. Finally, it found that Judge Downey was remorseful.

As to counts II and III, the JQC did not believe these serious charges had been disregarded or improperly minimized. Regarding count II, after conducting further investigation, the JQC concluded that Judge Downey’s conduct was “more a matter of judicial error than judicial misconduct” and did not pursue this charge any further. As for count III, the JQC ultimately determined that further proceedings to prove these charges would not be prudent because the stipulation ensured Judge Downey’s permanent removal from office as of January 1, 2007. In addition, as an interim protection, if the stipulation is breached or further misconduct occurs, Judge Downey would cease to serve immediately. Lastly, the JQC clarified that Judge Downey will serve the remainder of his term in the civil division of the circuit court and will not preside over criminal cases.

In his appearance before this Court, Judge Downey clarified that he had never formally answered counts II and III but had never denied them. Further, he admitted to the communications with the two female attorneys and agreed that these communications were improper, but disputed the characterization of these communications as rising to the level of sexual harassment. Judge Downey also informed the Court that while the qualifying period to seek reelection expired in May, he could still qualify to run for a newly created position until July 15, 2006. However, he made it clear that he had no plans to seek reelection. Judge Downey also explained that his early retirement and inability to serve as a senior judge essentially worked as a monetary sanction because he would forfeit approximately $600,000 worth of benefits.

DISCUSSION

The JQC asks this Court to approve its stipulation with Judge Downey as well as its disciplinary recommendation. While we remain deeply troubled by the charges as filed, particularly those in count III, we approve the stipulation and the JQC’s disciplinary recommendation. We do so because under the facts and circumstances of this ease, the stipulation presents a reasonable, expeditious, and assured way of securing Judge Downey’s permanent removal from office.

1. Standard of Review

In considering whether to approve or reject a stipulation entered between the JQC and a judge, we consider both the terms of the stipulation and the findings of the JQC. In re Angel, 867 So.2d 379, 382-83 (Fla.2004). “This Court reviews the findings of the JQC to determine if they are supported by clear and convincing evidence and reviews the recommendation of discipline to determine whether it should be approved.” In re Andrews, 875 So.2d 441, 442 (Fla.2004). Clear and convincing evidence is the standard of proof required “to support the alleged ethical violations— a standard of proof which has been described as ‘more than a preponderance of the evidence, but the proof need not be beyond and to the exclusion of a reasonable doubt.’ ” In re Kinsey, 842 So.2d 77, 85 (Fla.2003) (quoting In re Davey, 645 So.2d 398, 404 (Fla.1994)); accord Angel, 867 So.2d at 382., “In cases where a judge admits to wrongdoing and the JQC’s findings are undisputed this Court will ordinarily conclude that the JQC’s findings are supported by clear and convincing evidence.” In re Diaz, 908 So.2d 334, 337 (Fla.2005). We have also recognized that a judge’s “own admissions” of the misconduct and impropriety of that conduct “bolster the JQC’s findings, which we give great weight as we consider its recommendation of discipline.” Angel, 867 So.2d at 383 (citing In re Rodriguez, 829 So.2d 857, 860 (Fla.2002); In re McMillan, 797 So.2d 560, 566 (Fla.2001)). We give the disciplinary recommendation of the JQC great weight but recognize that “the ultimate power and responsibility in making a determination rests with this Court.” Kinsey, 842 So.2d at 85 (quoting Davey, 645 So.2d at 404); accord Angel, 867 So.2d at 382-83.

2. Analysis

a. Stipulation and Findings Supporting Ethical Violations

Under the terms of the stipulation, Judge Downey admits both the conduct and its impropriety as alleged in count I. On this basis, the JQC finds Judge Dow-ney guilty of violating canons 1 and 2A of the Code of Judicial Conduct as alleged in count I. We conclude that there is clear and convincing evidence to support the JQC’s finding. In addition, as to count II, we accept the JQC’s decision not to pursue this charge. As to count III, given Judge Downey’s oral admission that his communications with two female attorneys were inappropriate, that admission may be considered in our review of the recommended discipline. In this light, we next consider whether we should approve the JQC’s disciplinary recommendation.

b. Disciplinary Recommendation

We approve the disciplinary recommendation of the JQC. In so doing, we must first clarify several important points. First, while “[t]his Court may ‘accept, reject, or modify in whole or in part’ the findings and conclusions of the JQC,” In re Adams, 932 So.2d 1025 (Fla. May 18, 2006) (quoting art. V, § 12(c)(1), Fla. Const.), we cannot modify a stipulation between the JQC and a judge. We may only accept or reject it. Thus, while we are well aware of the seriousness of the allegations in count III, other than the obvious impropriety of the communications later admitted to by Judge Downey in his appearance before us, those allegations are otherwise denied. Therefore, though we consider Judge Dow-ney’s oral admissions to this Court in deciding whether to accept the stipulation, we do not have the power to modify the terms of the stipulation and impose a harsher sanction.

Second, the stipulation was entered into in lieu of conducting a formal hearing on any of the charges. If we were to reject the stipulation, the adjudicatory process would continue and most likely remain unresolved by January 1, 2007. In addition, the outcome of the adjudicatory process would be uncertain. Moreover, if we were to reject the stipulation, Judge Downey would be free to qualify and run again for judicial office. Thus, the practical and definitive effect of accepting the stipulation and the JQC’s recommendation is that it ensures that Judge Downey will no longer serve as a judge after January 1, 2007. Until that date certain, Judge Downey will preside over civil cases only and do so with the prospect of immediate removal as set forth in the stipulation. In light of this, we now consider the JQC’s recommendation.

Pursuant to the stipulation, the JQC based its disciplinary recommendation on Judge Downey’s admission to the ethical violations charged in count I. We have found that a public reprimand is appropriate in cases involving violations of canons 1 and 2 where there is significant mitigation, the incidents of misconduct are isolated, and the alleged misconduct did not affect the judge’s office. For instance, in Adams, 932 So.2d 1025, we found that a public reprimand was an appropriate sanction where a judge became involved in a romantic relationship with an attorney practicing before him in violation of canons 1, 2, and 3. As we explained,

In reaching agreement with Judge Adams on the recommended sanction, the JQC Investigative Panel noted that Judge Adams accepted full responsibility for his misconduct during the relationship, which lasted for approximately two months, admitted that it should not have occurred, and regrets and apologizes for the misconduct. Further, the JQC recognized that Judge Adams has an otherwise unblemished record as a judge and is active in his community. Finally, from our review of the record, we conclude that there is no evidence that the relationship actually influenced his actions in any of the cases involving the attorney. If evidence had demonstrated that the relationship affected the disposition of any matter before the judge, we would not hesitate to impose stiffer discipline.

932 So.2d at 1027-28; see also In re Cope, 848 So.2d 301, 304 (Fla.2003) (finding that public reprimand was appropriate sanction given judge’s “sincere remorse and his exemplary performance as a judge” where judge admitted to incident of public intoxication and inappropriate conduct of an intimate nature while attending an out-of-state judicial conference at taxpayers’ expense); In re Esquiroz, 654 So.2d 558, 559 (Fla.1995) (finding that public reprimand was appropriate sanction where judge pled nolo contendere to DUI charge, admitted violating canons 1 and 2A, and expressed remorse and JQC determined incident was isolated).

Similarly, the JQC has found significant mitigation in this case. It determined that Judge Downey’s misconduct occurred at the end of an otherwise long and unblemished record of judicial service. His judicial service began in 1984 and was unmarred until 2002. Judge Downey admitted to and accepted responsibility for his actions as alleged in count I. He admitted to habitually viewing pornography from his computer. In addition, he has admitted to engaging in inappropriate conduct towards two female attorneys. He voluntarily sought psychological counseling. And he has shown sincere remorse. He is stipulating not only to a public reprimand but also to permanent retirement from the bench effective January 1, 2007. Finally, the JQC found no evidence that Judge Downey’s misconduct affected his judicial office.

Under the unique facts and circumstances of this case, the JQC’s finding that Judge Downey’s admitted misconduct did not interfere with his judicial decision making will not be disturbed by this Court. Although the allegations of sexual harassment contained in count III are extremely serious and very disturbing to this Court, we again note that this count as charged has been denied and remains unproven. Nonetheless, we also recognize that the JQC and Judge Downey have not totally ignored the allegations in count III. Rather, in light of count III, the JQC has recommended and Judge Downey has stipulated to a much harsher sanction than a public reprimand and apology. In lieu of a formal hearing on count III, Judge Dow-ney has agreed to retire at the end of his current term of office and to be permanently barred from serving as a judge in Florida. According to Judge Downey, this inability to serve beyond January 1, 2007, will result in the loss of significant income otherwise available to him. Considering the foregoing, we approve the stipulation and accept the JQC’s disciplinary recommendation as appropriate under the circumstances of this case.

We reiterate that, pursuant to the terms of the stipulation, if Judge Dow-ney engages in further misconduct, he must immediately resign. Moreover, we also note that the retired status of a judge does not deprive the JQC of its jurisdiction so long as a complaint is filed within one year after retirement. Art. V, § 12(a)(1), Fla. Const. Likewise, retirement does not deprive this Court of jurisdiction. In re Frank, 753 So.2d 1228, 1230 n. 1 (Fla.2000) (citing In re Hapner, 718 So.2d 785, 787-88 (Fla.1998)) (relying on article V, section 12 of the Florida Constitution to exercise jurisdiction over a case where the judge had already resigned from the bench).

Accordingly, we approve the stipulation, and, in accordance with the policy announced in Frank, 753 So.2d at 1242, we hereby command Judge Brandt C. Dow-ney, III to appear before this Court for the administration of a public reprimand on Friday, September 22, 2006, at 8:30 a.m., as directed by this Court in our corrected June 30, 2006, order.

It is so ordered.

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

      . Canon 1. A Judge Shall Uphold the Integrity and Independence of the Judiciary
      An independent and honorable judiciary is indispensable to justice in our society. A judge should participate in establishing, maintaining, and enforcing high standards of conduct, and shall personally observe those standards so that the integrity and independence of the judiciary may be preserved. The provisions of this Code should be construed and applied to further that objective.
      Canon 2. A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities
      A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
      Canon 3. A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently
      B. Adjudicative Responsibilities.
      (5) A judge shall perform judicial duties without bias or prejudice. A judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, including but not limited to bias or prejudice based upon race, sex, religion, national origin, disability, age, sexual orientation, or socioeconomic status, and shall not permit staff, court officials, and others subject' to the judge’s direction and control to do so. This section does not preclude the consideration of race, sex, religion, national origin, disability, age, sexual orientation, socioeconomic status, or other similar factors when they are issues in the proceeding.

      . This stipulation was presented pursuant to article V, section 12 of the Florida Constitution and Florida Judicial Qualifications Commission Rule 6(j).

      . As recited in our June 30, 2006, order, the stipulation provides in applicable part:
      (i)Judge Downey may retain his position as Circuit Judge until the end of his term on Jamiary 1, 2007, at which time he will retire;
      (ii) After his retirement pursuant to this stipulation, Judge Downey will not serve as a Senior Judge and will not seek appointment or election as a judge;
      (iii) Judge Downey shall sign and provide to the Florida Judicial Qualifications Commission a letter of apology to the public, his fellow judges, and the legal community for his actions which have resulted in this case, which letter the Commission may distribute to the public;
      (iv) Judge Downey's restricted access to email and the internet at the courthouse shall continue to remain in place until his retirement;
      (v) Judge Downey shall continue his present counseling until such time as his counselor releases him. A copy of such release will be provided to the Florida Judicial Qualifications Commission;
      (vi) Judge Downey shall personally appear before this Court to receive a public reprimand at a date and time to be determined by this Court;
      (vii)Judge Downey shall sign a letter of resignation to take effect upon the finding of probable cause by the Florida Judicial Qualifications Commission of (1) any violation of the Code of Judicial Conduct other than the conduct set forth in the notice of formal charges or (2) Judge Downey's failure to abide by the terms of this stipulation;
      (viii) Judge Downey shall not file for reelection even if this Court has not ruled on this stipulation prior to the end of the qualifying period for the next election.

      . As to the assistant state attorney, Judge Downey told this Court that after he was confronted by Chief Judge Demers, he had no further communications with the attorney, and she did not file any formal charges against him. He characterized his pursuit of her as overactive mentoring and denied asking Judge Allan to transfer the state attorney’s cases to his division. He clarified that he had contacted Judge Allan regarding transferring a case to his division when asked to do so by the administrative criminal judge because Judge Allan was overbooked. As to the second attorney, he admitted that he was attempting to establish a social relationship with her and that this was improper. However, she had not filed any formal charges.


source: Caselaw Access Project

license: Public Domain

text:
    THE FLORIDA BAR, Complainant, v. Mark Stephen GOLD, Respondent.
    No. SC04-1661.
    Supreme Court of Florida.
    Aug. 31, 2006.

      Don L. Horn, Chair, Standing Committee on Advertising, Tavares, FL, John F. Harkness, Jr., Executive Director, Kenneth Lawrence Marvin, Staff Counsel, Tallahassee, FL, William Mulligan, Bar Counsel, Miami, FL, M. Hope Keating and Barry Richard of Greenberg Traurig, P.A., Tallahassee, FL, for Complainant, The Florida Bar.
    Alan J. Kluger, Francesca Russo-Di Staulo, Andrew P. Gold, and Gregg Reed of Greenberg, Kluger, Peretz, Kaplan and Berlin, P.L., Miami, FL, for Respondent.
   PER CURIAM.

We have for review a referee’s report regarding alleged ethical breaches by Mark Stephen Gold. We have jurisdiction. See art. V, § 15, Fla. Const. We accept the referee’s findings and recommendations in part and reject them in part. Neither party challenges the referee’s summary disposition on the claim under Rule Regulating the Florida Bar 4 — 7.3(b), and we approve the referee’s determination on this claim. Likewise, neither party challenges the referee’s findings of fact or recommendations as to guilt on the claim under Rule Regulating the Florida Bar 4-7.7(a), and we approve these findings and recommendations. However, for the reasons expressed below, we approve the summary disposition on the claim under Rule Regulating the Florida Bar 4-7.4(b)(2)(K), but not for the reasons assigned by the referee. Finally, for the reasons expressed below, we disapprove the referee’s findings and conclusions as to the claims under Rules Regulating the Florida Bar 4-7.2(b)(l)(B), 4-7.4(b)(l)(E), and 4-7.2(b)(3) and remand to the referee for further proceedings.

Procedural Background

The charges filed against Gold relate to his mailing of brochures soliciting business for his legal practice from persons charged with traffic and DUI offenses. The Florida Bar charged Gold with violating Rules Regulating the Florida Bar 4-7.2(b)(l)(B) (prohibiting false, misleading, deceptive, or unfair communication about a lawyer or a lawyer’s services, including any reference to past successes or results obtained or statements likely to create an unjustified expectation about results the lawyer can achieve); 4-7.4(b)(l)(E) (prohibiting written communications to a prospective client for the purpose of obtaining professional employment if the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim or which is improper under subdivision (b)(1) of rule 4-7.2); 4-7.4(b)(2)(K) (prohibiting written communication seeking employment by a specific prospective client in a specific matter which reveals the nature of the client’s legal problem on the outside of the communication); 4-7.2(b)(3) (prohibiting statements describing or characterizing the quality of the lawyer’s services unless furnished to a prospective client at that person’s request or to existing clients); 4-7.3(b) (requiring certain disclosure statements regarding the lawyer’s background, training, and experience); and 4-7.7(a) (requiring payment of filing fees to the Standing Committee on Advertising for review of advertisements).

Prior to a final hearing, the referee granted partial summary relief in Gold’s favor on all but the rule 4-7.7(a) claim. After a final hearing was held on that claim, the referee filed a report in which the referee adopted the earlier order granting summary relief to Gold and, in addition, the referee further found Gold had not violated rule 4-7.7(a).

The Bar petitions this Court for review of the referee’s grant of judgment to Gold on the claims alleging violations of rules 4-7.2(b)(1)(B), 4-7.4(b)(l)(E), 4-7.4(b)(2)(K), and 4-7.2(b)(3).

Factual Background

Gold’s law firm is named The Ticket Clinic. Gold specializes in the defense of traffic and DUI charges. To secure clients, he obtains the names and addresses of persons who have been ticketed for various traffic offenses or charged with driving under the influence (DUI) from public records maintained by clerks of court in the area. He then mails brochures to these persons to solicit their legal business. There is no dispute as to the contents of the brochures. The outside of the brochure contains the addressee’s name and address; the name of Gold’s firm, The Ticket Clinic, which appears on a diamond shape resembling the outline of a traffic sign with the drawing of a roadway disappearing into the distance; a drawing of a stop sign; and the words “Don’t Just Roll Over Fight Back.”

The Bar alleges the outside of Gold’s brochure expressly reveals the nature of the recipient’s specific legal problems, in violation of rule 4-7.4(b)(2)(K). That rule provides: “A written communication seeking employment by a specific prospective client in a specific matter shall not reveal on the envelope, or on the outside of a self-mailing brochure or pamphlet, the nature of the client’s legal problem.”

The inside of the brochure consists of a few paragraphs of introductory text and a copy of three newspaper articles discussing Gold and his firm and his practice in defense of traffic and DUI cases. Two of the articles appear to have been published in The Miami Herald and the third appears to have been published in the Fort Lauderdale Sun-Sentinel. None of the articles has a date of publication. However, two of the articles refer to Gold as a “32-year-old.” As Gold was forty-nine on June 22, 2005, the date the Report of Referee was filed in this Court, it would appear that at least two of the articles were published seventeen years-before.

The articles include several statements about Gold’s services as a lawyer in a way that the Bar alleges (1) refers to past successes or results obtained or is otherwise likely to create an unjustified expectation about results Gold can achieve, in violation of rules 4 — 7.2(b)(1)(B) and 4-7.4(b)(1)(E); or (2) describes or characterizes the quality of Gold’s services, in violation of rule 4 — 7.2(b)(3).

Analysis

As in ordinary civil proceedings, a referee has the authority to grant summary relief when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fla. Bar v. Greene, 926 So.2d 1195 (Fla.2006); Fla. Bar v. Rapoport, 845 So.2d 874, 877 (Fla.2003). However, unlike a referee’s factual findings, which are entitled to deference, a referee’s order granting summary relief is reviewed de novo by this Court. Greene, 926 So.2d at 1200; Rapoport, 845 So.2d at 877.

The Outside of the Brochure

We initially address the issue of whether, based on the undisputed facts, the outside of the self-mailing brochure revealed the nature of the potential client’s legal problem, in violation of rule 4-7.4(b)(2)(E). We hold that it does not. In the order granting Gold summary relief on the rule 4 — 7.4(b)(2)(E) claim, the referee concluded that application of the rule to Gold’s conduct “would constitute an unconstitutional suppression of respondent’s protected commercial speech.” ' We disapprove the referee’s report insofar as it purports to grant summary relief to Gold on First Amendment grounds on the rule 4-7.4(b)(2)(E) claim. However, we need not reach the First Amendment issue. When a case may be resolved on grounds other than constitutional grounds, the Court will ordinarily refrain from proceeding' to decide the constitutional question. See, e.g., Sullivan v. Sapp, 866 So.2d 28 (Fla.2004).

The outside of the brochure contained the names and addresses of the recipients. The sender was identified as The Ticket Clinic, the name of Gold’s law practice. In addition, there was a picture of a stop sign and a roadway, along with the words: “Don’t Just Roll Over Fight Back.” While it is possible that someone seeing the outside of Gold’s brochure might guess that the recipient was being targeted by a law firm, there is nothing that would lead inescapably to the conclusion that the recipient had indeed been charged with a particular offense. There is certainly nothing on the outside of the brochure to indicate the recipient had actually been charged with DUI. In fact, there was nothing to distinguish the outside of the brochure from numerous other unsolicited, seemingly random bulk mail advertisements which are mailed and delivered regularly in the hopes of gaining, by chance alone, some new customers or purchasers. Accordingly, the referee’s report is approved insofar as it granted summary relief in favor of Gold on the rule 7.4(b)(2)(E) claim.

The Inside of the Advertisement

The Court disapproves the referee’s order granting summary relief to Gold on the rule 4-7.2(b)(l)(B), 4-7.4(b)(l)(E), and 4-7.2(b)(3) claims and concludes the referee utilized the wrong standard of review with regard to these claims. With regard to the inside of the advertisement at issue here, the referee found that the articles themselves were not misleading, which triggered the referee’s use of a heightened constitutional standard of review for restrictions on the dissemination of truthful information. The referee found that the Bar failed to prove that it sought to suppress the dissemination of the “independently written newspaper articles” in order to advance a substantial government interest in a way no more extensive than necessary. However, it is unclear whether the referee was analyzing the articles as “independently written newspaper articles” or as the content of a lawyer’s advertisement being used years after the articles were published.

This Court has previously concluded there is no broad constitutional prohibition against the regulation of lawyer advertising. See, e.g., Fla. Bar v. Pape, 918 So.2d 240 (Fla.2005), cert. denied, — U.S. —, 126 S.Ct. 1632, 164 L.Ed.2d 335 (2006). Further, in 2000, the United States Court of Appeals for the Eleventh Circuit reaffirmed the well-established principle that a state may ban false, deceptive, or misleading commercial speech without infringing on First Amendment rights. Mason v. Fla. Bar, 208 F.3d 952, 955 (11th Cir.2000). In addition, a state may restrict commercial speech that is not false, deceptive, or misleading if the restriction directly and materially advances a substantial state interest in a manner no more extensive than necessary to serve that interest. Id. In Mason, the Eleventh Circuit further held The Florida Bar has a substantial interest in ensuring that attorney advertisements are not misleading and in ensuring and encouraging the flow of helpful, relevant information about attorneys. Id. at 956. All of the rules involved in this case fall within that category of regulation.

Rules 4-7.2(b)(l)(B) and 4-7.2(b)(3) define or describe statements referring to past successes or results obtained, statements likely to create an unjustified expectation about the results the lawyer can achieve, and statements describing or characterizing the quality of the lawyer’s services as inherently false, misleading, deceptive, or unfair. Because the referee concluded that the contents of the brochures were constitutionally protected, the referee’s order does not address whether the statements contained in Gold’s advertisement refer to past successes or results obtained, are likely to create an unjustified expectation about the results the lawyer can achieve, or describe or characterize the quality of Gold’s services. We conclude that these are factual issues which must be resolved and which preclude the grant of summary resolution.

It is true that this Court has previously held that the initial publication of independently authored news articles does not violate the rules. See State ex rel. Fla. Bar v. Nichols, 151 So.2d 257, 259 (Fla.1963). We do not disturb that holding here. However, we have never held that republication or circulation of news articles in direct mail solicitations completely insulates a lawyer from prosecution for ethical misconduct under the Bar’s advertising rules. In this instance, for example, it is apparent that by taking the articles and including them in a direct mail solicitation for legal representation, Gold adopted the articles’ contents and made them into advertising copy. In this way, the articles’ contents became subject to the strictures of the Bar’s advertising rules.

This result is made more compelling in this ease by the fact that at least two of the articles at issue were published seventeen years before Gold used them in his advertisement and, yet, were undated, such that the recipients of the advertisements would be unable to properly assess their value when choosing legal representation. These circumstances also raise an issue as to whether the dated information provided in these articles, even if otherwise proper, would be helpful or relevant. For example, it raises the issue as to whether the information contained in them, which may have been true at the time the articles were first published as news stories, is still true after all these years. All of these facts and circumstances should be taken into consideration by the referee in determining whether the contents of the advertisement violated rules 4-7.2(b)(l)(B), 4-7.2(b)(3), and 4-7.4(b)(1)(E).

We do not offer an opinion concerning these issues or any remaining factual issues. Rather, we direct the referee to take a fresh look at this case in light of this opinion. If necessary, it is also permissible for the Bar to be allowed to amend its complaint prior to the formal hearing before the referee to more particularly identify the factual circumstances alleged by the Bar to give rise to the alleged rule violations. See Fla. Bar v. Batista, 846 So.2d 479 (Fla.2003) (holding attorneys must be given reasonable notice of the charges they face before the referee’s hearing on those charges).

CONCLUSION

Accordingly, the Court approves the referee’s order granting summary disposition to Gold on the rule 4-7.3(b) claim and the referee’s findings and conclusions regarding the alleged violations of rule 4-7.7(a). The Court further approves the referee’s order granting summary disposition to Gold on the rule 4-7.4(b)(2)(K) claim, but not for the reason assigned by the referee. Thus, we approve of the recommendation that Gold be found not in violation of rules 4-7.3(b), 4-7.7(a), and 4-7.4(b)(2)(K), and that no discipline is imposed as to those charges. The Court disapproves the referee’s report recommending summary disposition on the rule 4-7.2(b)(l)(B), 4-7.4(b)(1)(E), and 4~7.2(b)(3) claims and remands these claims to the referee for further proceedings, consistent with this opinion.

It is so ordered.

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

      . Rule 4-7.2(b)(l)(B) prohibits a lawyer from sending a false, misleading, deceptive, or unfair communication about the lawyer or his services and provides that a communication violates the rule, i.e., it is false, misleading, deceptive, or unfair, if it “contains any reference to past successes or results obtained or is otherwise likely to create an unjustified expectation about results the lawyer can achieve except as allowed in the rule regulating information about a lawyer's services provided upon request.”

      . Rule 4-7.4(b)(1)(E) prohibits a lawyer from sending a written communication directly or indirectly to a prospective client for the purpose of obtaining professional employment if “the communication contains a false, fraudulent, misleading, deceptive, or unfair statement or claim, or is improper under subdivision (b)(1) of rule 4-7.2.”

      .Rule 4-7.2(b)(3) prohibits a lawyer from making "statements describing or characterizing the quality of the lawyer’s services in advertisements and written communications” unless the information is being sent to a prospective client at that person’s request or to an existing client.

      . To his credit, counsel for Gold conceded at oral argument that a lawyer cannot use news articles as an "end run” around the Bar's advertising rules and that the content of an article, when used as an advertisement, is subject to these restraints.


author: LEWIS, C.J.

text:
    Jim SMITH, etc., et al., Petitioners, v. Stephen KROSSCHELL, Respondent.
    No. SC05-488.
    Supreme Court of Florida.
    Aug. 31, 2006.
    Charles J. Crist, Jr., Attorney General, Eric J. Taylor, Senior Assistant Attorney General, Mark T. Aliff, Assistant Attorney General, Tallahassee, FL, and Christina M. LeBlanc, Assistant County Attorney, Pinellas County, Clearwater, FL, for Petitioner.
    Stephen Krosschell, pro se, Tarpon Springs, FL.
   LEWIS, C.J.

We have for review the decision in Smith v. Krosschell, 892 So.2d 1145 (Fla. 2d DCA 2005), in which the Second District Court of Appeal has certified conflict with the decision of the Third District Court of Appeal in Robbins v. Kornfield, 834 So.2d 955 (Fla. 3d DCA 2003). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons expressed below, we quash the decision in Krosschell and remand for further proceedings consistent with this opinion.

FACTS AND PROCEEDINGS BELOW

In 2000, Krosschell received homestead exemption status for the real property which has generated this litigation. During March of that year, a field inspection of the real property was conducted to verify the information in the records of the property appraiser (Smith). The property appraisal records were subsequently updated to reflect the inspection, but at that time a data entry error occurred. Although Krosschell’s home on the real property encompassed 3,746 square feet of base living area, when the data was entered to update the records, the square foot base living area of the home was entered as zero (0). In effect, this data entry error effectively deleted Krosschell’s entire dwelling from the property records as though the property was raw land without any improvements. Thus, due to this data error, Krossehell’s property was undervalued by $100,100, and this valuation produced by the erroneous data was certified on the 2000 tax roll.

After the error was discovered, Smith issued a certificate of correction in an attempt to correct the error, but the statutory time requirements for notice to Krossc-hell to afford time for a challenge to the assessed value before the Value Adjustment Board (Board) could not be satisfied for the year 2000. The Board had already conducted proceedings for 2000, and Krosschell would have been unable to challenge the correct assessment until the Board convened again in 2001. Therefore, the original assessed value of $188,700 (i.e., the assessed value which did not include Krosschell’s house) was reinstated for the year 2000.

In August 2001, Krosschell received a 2001 notice of proposed property taxes based on the correct data, which included the correct assessed value of $288,800 for the year 2000 (i.e., the assessment of Krosschell’s property that included the previously eliminated improvement), and an assessed value of $297,400 for 2001. Krosschell appealed these values, but the Board concluded that Smith had acted properly in correcting the data and assessing the value of the property.

Krosschell proceeded to file a complaint in the circuit court. In a motion for summary judgment, he claimed that there had been a fifty-eight percent increase in the 2001 assessment over the 2000 assessment which violated the “Save Our Homes” tax cap in the Florida Constitution, a provision which permits increases of annual assessments of homesteaded property to be no more than three percent of the previous year’s assessment. He asserted this position even though the initial 2000 assessment of his property was based on an error which excluded the existing structure. Krosschell further contended that section 197.122(1) of the Florida Statutes (2000), which authorized a property appraiser to correct “acts of omission or commission” at any time, was inapplicable in the instant proceeding, and the statute that did apply, section 193.155 of the Florida Statutes (2000), did not allow for correction of the data entry error that occurred here.

Smith also filed a motion for summary judgment in which he argued that the erroneous assessment of Krosschell’s property was a mistake of fact resulting from the data entry error that could be corrected. The circuit court granted summary judgment in favor of Krosschell, denied Smith’s motion, and entered judgment which required Smith to appraise Krossc-hell’s property at $188,700 for the year 2000 (i.e., the assessment value based on the data error without the existing home), concluding that this amount, even though based on a data entry error, established the base year just valuation for the property-

The Second District affirmed the summary judgment and concluded that Smith had no statutory authority on these facts to make a retroactive change in the base year assessment of Krosschell’s homestead. See Krosschell, 892 So.2d at 1146. In support of its holding, the district court relied on Smith v. Welton, 729 So.2d 371 (Fla.1999), in which this Court held that on the facts presented there section 193.155(8)(a) of the Florida Statutes did not provide property appraisers the authority to make a retroactive change in the base year assessment of homesteaded property. See Krosschell, 892 So.2d at 1146. The Second District recognized that this statutory section had been amended in 2001 to allow property appraisers to make such a change; however, the court determined that the amendment applied only prospectively because there was no indication of legislative intent that it be applied retroactively. See id. at 1146-47. Concluding that all ambiguities in tax statutes are to be resolved in favor of the taxpayer, the Second District held that the 2000 version of the statute applied in the present case, and, therefore, Smith could not change the original assessed value of Krosschell’s property. See id. at 1147.

The Second District certified direct conflict with Robbins v. Kornfield, 834 So.2d 955 (Fla. 3d DCA 2003), in which the Third District held that the same 2001 amendment to section 193.155 authorized property appraisers to retroactively correct errors in the calculation of the base year just value assessment of a property. See Kornfield, 834 So.2d at 957. This Court received oral argument in this case and subsequently ordered supplemental briefing from the parties to specifically address section 197.122 of the Florida Statutes, the statute that Krosschell claimed in his motion for summary judgment to be inapplicable in the present controversy.

ANALYSIS

After receiving supplemental briefing from the parties, we conclude that it is unnecessary in the instant case to resolve the issue of whether the 2001 amendment to section 193.155 applies retroactively. This conclusion is based on our determination that the decisions in Krosschell and Komfield involve consideration of errors that are fundamentally different, and section 193.155(8)(a) of the Florida Statutes does not apply to the data entry error that occurred in the instant case.

A review of the conflict case, Komfield, and the decision of this Court in Smith v. Welton, each of which interprets and applies section 193.155(8)(a), demonstrates that in each of these cases, a property appraiser underassessed some aspect of a homesteaded property. In Komfield, the appraiser failed to consider a 1,610 square foot addition that had been made to the homesteaded property, and this addition escaped taxation for nine years. See 834 So.2d at 956. In Smith, a property appraiser mistakenly underassessed 15,000 square feet of improvements to a 19,000 square foot building that served as a homestead. See 729 So.2d at 371-72. Thus, in each of these eases, the appraiser made an error in judgment when evaluating the property. On the other hand, in the instant ease there has been no allegation that Smith made an error in judgment when he evaluated Krosschell’s property; instead, a purely clerical data entry error occurred, and the square footage of Krosschell’s base living area was accidentally eliminated and entered as zero.

Neither this Court nor any district court has utilized section 193.155(1) to address the correction of an administrative or clerical mistake such as a data entry error which totally eliminates the improvements on real property which are in place and previously in the records. Rather, the correction of mathematical, administrative, or clerical error such as this has been addressed under section 197.122(1) of the Florida Statutes or one of its statutory predecessors. This statutory provision provides, in pertinent part:

No act of omission or commission on the part of any property appraiser ... shall operate to defeat the payment of taxes; but any acts of omission or commission may be corrected at any time by the officer or party responsible for them in like manner as provided by law for performing acts in the first place, and when so corrected they shall be construed as valid ab initio and shall in no way affect any process by law for the enforcement of the collection of any tax.

§ 197.122(1), Fla. Stat. (2005) (emphasis supplied). In the decision most similar to the instant case, a key-punch operator -incorrectly entered the assessed'value of a property as $260,000 rather than the correctly assessed value of $775,000. See Robbins v. First Nat’l Bank of South Miami, 651 So.2d 184, 184-85 (Fla. 3d DCA 1995). The Third District concluded that this error was correctable pursuant to section 197.122(1). See id. at 185.

In 1978, the First District concluded that a computer error that omitted a zero in the property owner’s tax bill was correctable under a statutory predecessor to section 197.122(1). See Straughn v. Thompson, 354 So.2d 948, 949 (Fla. 1st DCA 1978); see also Allen v. Dickinson, 223 So.2d 310, 310 (Fla.1969) (holding that acts of omission or commission of “the purely ministerial or administrative type” are correctable under a statutory predecessor to section 197.122(1)); McNeil Barcelona Assocs., Ltd. v. Daniel, 486 So.2d 628, 629 (Fla. 2d DCA 1986) (multiplication of square footage by improper factor to obtain assessment value was correctable under a statutory predecessor to section 197.122(1)). We conclude that the computer data entry error that occurred in the instant case is more comparable to the clerical and mathematical errors that occurred in Robbins, Straughn, and McNeil Barcelona than the underassessments resulting from the errors in evaluation or judgment that occurred in Komfield and Welton. Accordingly, we conclude that section 197.122(1), not 193.155(8)(a), applies to the error that occurred in the instant case, and pursuant to this statute, this error “may be corrected at any time.” § 197.122(1), Fla. Stat. (2005).

To the extent Krosschell claims that permitting the correction of Smith’s clerical error pursuant to section 197.122(1) violates the “Save Our Homes” cap of the Florida Constitution, the argument is without merit. Article VII, section 6, of the Florida Constitution affords á homestead tax exemption to individuals who maintain a permanent residence on real estate to which they hold legal or equitable title. See art. VII, § 6, Fla. Const. In fact, elimination of the entire residence as occurred here in error may even impact the homestead classification status of the property if correct. In 1992, Florida voters approved a constitutional amendment to limit the amount that the assessed value of a homesteaded property may be increased in any given year. The “Save Our Homes” amendment provides, in pertinent part:

(c) All persons entitled to a homestead exemption under Section 6 of this Article shall have their homestead assessed at just value as of January 1 of the year following the effective date of this amendment. This assessment shall change only as provided herein.
(1) Assessments subject to this provision shall be changed annually on January 1st of each year; but those changes in assessments shall not exceed the lower of the following:
a. Three percent (3%) of the assessment for the prior year.
b. The percent change in the Consumer Price Index for all urban consumers, U.S. City Average, all items 1967=100, or successor reports for the preceding calendar year as initially reported by the United States Department of Labor, Bureau of Labor Statistics.

Art. VII, § 4(c), Fla. Const. The purpose of this amendment “is to encourage the preservation of homestead property in the face of ever increasing opportunities for real estate development, and rising property values and assessments.” Zingale v. Powell, 885 So.2d 277, 281 (Fla.2004).

We have previously held that “fair market value and just valuation should be declared legally synonymous,” and that fair market value “is the amount a purchaser willing but not obliged to buy, would pay to one willing but not obliged to sell.” Walter v. Schuler, 176 So.2d 81, 85-86 (Fla.1965) (internal quotation marks omitted). Thus, under our precedent, an initial value assessment based on a clear and admitted data entry error which eliminates all improvements on the property not only would generate issues of homestead classification status but is not a “just value” assessment and it does not reflect the “fair market value” of the property. The “Save Our Homes” cap on annual assessments applies to homestead property that has been assessed at just value, and the cap is not implicated where there has been a data entry error which has eliminated all improvements from the records. Therefore, a clerical mistake such as the computer data entry error that occurred here produces a base year assessment that does not under these circumstances represent a “fair market value” of the homesteaded property, and the Save Our Homes cap does not forever “lock in” the erroneous data and resulting assessment, thereby allowing property owners to forever pay artificially reduced taxes as long as they own the property. Instead, we conclude that section 197.122(1) applies to correct this error, thereby allowing the appraiser to correct the erroneous data previously entered and erroneously changed to establish forever a “true just value” upon which the cap can be applied to tax increases in future years.

Were we to hold otherwise, manifestly unfair results would occur. Under Krossc-hell’s argument, if the value of a $3 million homestead was, due to a data entry error of removing all improvements from the records, wrongly assessed at $1.00 in its base year, the next year the homestead could be assessed at no more that $1.03, then $1.06 the following year, and so on in perpetuity. Under such an interpretation, some homeowners would obtain an erroneous permanent windfall on their homestead property taxes, even if admittedly based on obvious data entry errors, while other homeowners would bear a comparatively disproportionate share of the tax burden solely because their homesteads had been assessed based on correct data. The “Save Our Homes” Amendment was never designed or intended to allow a homestead owner to perpetuate an admitted data error and subvert the payment of property taxes forever. The law cannot encourage and advance consequences based on an admitted and clear computer entry error. As we once stated in an earlier case, “¡jjustice may be ‘blind’ but it is not stupid,” see Korash v. Mills, 263 So.2d 579, 582 (Fla.1972), and we cannot adopt a statutory interpretation that would produce such an absurd and unfair result. See Warner v. City of Boca Raton, 887 So.2d 1023, 1033 n. 9 (Fla.2004) (noting that statutory provisions should not be construed in a manner that would lead to an absurd result). Our interpretation of section 197.122(1) comports with the basic purpose of taxation: “That all taxpayers share in proportion to their assessments, the support of their government and the protection and services afforded to their property and to themselves, and that none bears an added or unfair burden by reason of other taxpayers not paying their just share.” Korash, 263 So.2d at 582.

In conclusion, we hold that section 197.122(1), rather than section 193.155(8)(a), applies to correct the computer data entry error which occurred in the instant case and, pursuant to that subsection, Smith possesses the statutory authority to correct the erroneous data and result on the assessment of Krosschell’s property “at any time.” § 197.122(1), Fla. Stat. (2005). Accordingly, we quash Krosschell and remand this case to the district court for further consideration consistent with this opinion.

It is so ordered.

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


author: PER CURIAM. PARIENTE, J.,

text:
    STATE of Florida, Petitioner, v. Osberto Dejesus VARGAS, Respondent.
    No. SC05-1125.
    Supreme Court of Florida.
    Aug. 31, 2006.
    Charles J. Crist, Jr., Attorney General, Tallahassee, FL, and Angel L. Fleming, Assistant Attorney General, Miami, FL, for Petitioner.
    Bennett J. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, Eleventh Judicial Circuit, Miami, FL, for Respondent.
   PER CURIAM.

We have for review Vargas v. State, 902 So.2d 166 (Fla. 3d DCA 2004), disapproved by, Jones v. State, 923 So.2d 486 (Fla.2006), in which the Third District Court of Appeal certified conflict with the decision of the Fourth District Court of Appeal in Jones v. State, 870 So.2d 904 (Fla. 4th DCA 2004), approved, 923 So.2d 486 (Fla.2006). At the time the Third District issued its decision in Vargas, Jones was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

The petition for review is granted. On the authority of our decision in Jones v. State, 923 So.2d 486 (Fla.2006), the decision under review is quashed, and this matter is remanded to the Third District Court of Appeal for reconsideration upon application of this Court’s decision in Jones.

It is so ordered.

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

PARIENTE, J., concurs in part and dissents in part with an opinion, in which ANSTEAD, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

I agree with the majority that the Third District Court of Appeal’s decision in Vargas v. State, 902 So.2d 166 (Fla. 3d DCA 2004), should be quashed and the case remanded for reconsideration. As I stated in my dissenting opinion in Jones v. State, 923 So.2d 486, 493-94 (Fla.2006), “[t]he standard applied by the Third District could be interpreted as requiring reversal whenever any portion of the trial transcript is missing and cannot be reconstructed regardless of the nature of the omitted proceeding or whether the omitted record is necessary for a complete review.”

However, for the same reasons set forth in my opinion in Jones, I would not require that the defendant demonstrate a basis for a claim of prejudicial error. This requirement, adopted by the Jones majority, imposes too great a burden on the defendant to demonstrate that a reversible error occurred when the record has been lost through no fault of the defendant and cannot be reconstructed. “A defendant who has potential grounds for reversal of a criminal conviction should not be penalized when the record of the trial court proceedings is lost in whole or part because of circumstances beyond his or her control.” Jones, 923 So.2d at 491 (Pariente, C.J., dissenting). Accordingly, I would remand this case to the Third District to apply the test enunciated in my dissent in Jones, which would “require a new trial if the appellant can point with specificity to potential reversible error and the State cannot establish there is no reasonable possibility error occurred.” Id.

ANSTEAD, J., concurs.

      . See 923 So.2d at 489 ("[T]his Court requires that the defendant demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant.”).


author: VAN NORTWICK, J. KAHN, C.J., HAWKES, J.,

text:
    Cherie SOLSAA, on behalf of David Solsaa, decedent, Appellant, v. WERNER ENTERPRISES, INC., Appellee.
    No. 1D04-2909.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2005.
    Rehearing Denied Sept. 12, 2006.
    T. Rhett Smith and Teresa E. Liles, Pensacola, for Appellant.
    Susan Sapoznikoff Foltz, Tallahassee, for Appellee.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Cherie Solsaa seeks reversal of an order of the Judge of Compensation Claims (JCC) which denied her claim for death benefits following the death of her husband, a truck driver and delivery man employed by Wer-ner Enterprises, Inc., appellee. Because the employer began paying death benefits and did not deny compensability within 120 days of the initial provision of benefits, under section 440.20(4), Florida Statutes (2002), the employer has waived the right to deny compensability. Accordingly, we reverse.

On August 21, 2003, while unloading a truck, David Solsaa suffered a heart attack and subsequently died in Bunnell, Florida. The self-insured employer, headquartered in Nebraska, commenced payment of death benefits on October 21, 2002 and paid such benefits through August 4, 2003. The employer ceased benefits based upon a medical doctor’s report which found that Sol-saa’s heart attack was not caused by his employment. The employee’s widow, Cherie Solsaa, petitioned for resumption of death benefits arguing that the employer was estopped to deny such benefits pursuant to section 440.20(4), Florida Statutes (2002). The claim proceeded to a hearing before the JCC who denied the petition. The JCC found that the death benefits paid by the employer were paid under Nebraska law, not Florida law. As a result, the JCC concluded that the “pay and investigate” provisions of section 440.20(4) had not been invoked and that the employer was therefore not estopped from denying compensability.

Section 440.20(4), provides:

If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. The carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits .... Upon commencement of payment, ... the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation ... waives the right to deny compensa-bility, unless the carrier can establish material facts relevant to the issue of compensability that it could not have discovered through reasonable investigation within the 120-day period.

The statute is clear and unambiguous. The purpose of the 120-day limit is to ensure that an employer/carrier complies with the mandate of section 440.20(4) to “immediately and in good faith commence investigation of the employee’s entitlement to benefits.” Bussey v. Wal-Mart Store # 725, 867 So.2d 542, 545 (Fla. 1st DCA 2004). The statute works to fulfill the legislative goal of speedy resolution of claims and protects a claimant from prolonged periods of uncertainty regarding the employer/carrier’s position on the claim’s compensability. Id.

Here, the employer mistakenly believed Nebraska law applied and began paying benefits and investigating pursuant to that state’s workers’ compensation statute. The employer argues that section 440.20(4) does not apply since the benefits were not paid under Florida law. We cannot agree. It is without dispute that David Solsaa’s heart attack and death occurred in Florida. Given those facts, as a matter of law this claim is governed by Florida law and Florida has jurisdiction over the workers’ compensation claim. See Philyaw v. Arthur H. Fulton, Inc., 569 So.2d 787, 793 (Fla. 1st DCA 1990)(holding that, when an employee is injured in an accident in Florida while in the course of his employment with an out-of-state employer, the fact of the occurrence of the injury in Florida gives rise to coverage and jurisdiction under the Florida Workers’ Compensation Act). The employer’s erroneous assumption or conclusion as to the applicable law does not create either a factual issue concerning the applicable law or a defense or exception to the 120-day “pay and investigate” requirement in section 440.20(4). Because the employer did not deny compensability of the heart attack within 120 days of the initial provision of benefits, the employer waived the right to deny compensability. See Public Storage v. Galano, 894 So.2d 287 (Fla. 1st DCA 2005); Hutchinson v. Lykes Smithfield Packing, 870 So.2d 144 (Fla. 1st DCA 2004).

The case before us is distinguishable from Cole v. Fairfield Communities, 908 So.2d 1105 (Fla. 1st DCA 2005) and Bussey v. Wal-Mart, 867 So.2d 542 (Fla. 1st DCA 2004). In both Cole and Bussey, the JCC determined, and competent substantial evidence showed, that the employer in each case was not uncertain of its obligation to provide benefits, never invoked the pay-and-investigate provisions of section 440.20(4), and intended to deny com-pensability. Cole, 908 So.2d at 1106-07, Bussey, 867 So.2d at 545. In both cases, we concluded that, because the employer did not invoke the pay-and-investigate procedure and never intended to take any action other than deny compensability, the failure to respond to the petition operated as a denial and the 120-day provisions of section 440.20(4) did not apply. Id.

In the case on appeal, however, it is uneontested that the employer intended to pay benefits and did pay benefits for over nine months while it investigated the claim. Thus, unlike Cole and Bussey, this is not a case where the employer intended to deny compensability all along and did not provide a notice of the denial to claimant. Believing that Nebraska law applied, the employer here paid the claimant benefits while it investigated the claim, but failed to admit or deny compensability within the 120-day period provided by section 440.20(4). The employer seeks relief from the clear provisions of the statute based upon its mistaken assumption as to the applicable law. To grant such relief would require us to ignore the express language of the statute and would.be contrary to the legislative goal of facilitating speedy resolution of claims.

Accordingly, the order of the JCC is reversed, and the cause is remanded for determination of the benefit owing the claimant under Florida law.

REVERSED and REMANDED for further proceedings.

KAHN, C.J., concurs with written opinion and HAWKES, J., dissents with written opinion.

KAHN, C.J.,

concurring.

I have signed on to Judge Van Nort-wick’s opinion, and I write separately in an attempt to dispel any notion that this case in any way involves an analysis under the familiar rule of competent substantial evidence. The determinant in this case, as Judge Van Nortwick points out, is that benefits due were controlled solely by Florida law, and Florida alone has jurisdiction over this workers’ compensation claim. This is a legal conclusion, and appellee’s unilateral mistake of law no more serves as a defense than does its apparent igno-ranee of Florida Workers’ Compensation law.

Failure of an employer/carrier to investigate fully and deny a claim within 120 days after initially providing benefits renders that claim compensable pursuant to section 440.20(4), Florida Statutes. See, e.g., Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001); Bynum Trans., Inc. v. Snyder, 765 So.2d 752 (Fla. 1st DCA 2000). This is not a “gotcha” or “technical” claim. This is the law established by the Florida Legislature and extant in this state now for well over eleven years. The law was obviously intended by our Legislature to facilitate the administrative management of workers’ compensation claims by employers and carriers and, thereby, to avoid litigation. For better or worse, section 440.192(8) and section 440.20(4), both contemplate that in some cases, benefits will be payable under circumstances where the merits of the situation might suggest otherwise. This is a policy decision made by the Legislature that we have no alternative but to honor.

HAWKES, J.,

dissenting.

I am compelled to dissent. Claimant’s argument for benefits depends on a hope and a dream that a bizarre “I gotcha” claim can work. She argues that the E/C’s mistaken payment of Nebraska benefits can somehow trigger a provision of Florida law that would forever bar any adjudication of a Florida claim based on its merits. Her argument concludes that, as a consequence, the E/C and the system must now be burdened paying her Florida compensation to which she was never entitled. Apparently, dreams can sometimes come true.

Two uncontested points should have shattered the dream. The first is a finding of fact. The JCC found Claimant never received any compensation pursuant to chapter 440, Florida’s workers’ compensation statute. The second is a question of law. Under Florida law, unless benefits or compensation is paid pursuant to chapter 440, the pay and investigate provisions of section 440.20(4), Florida Statutes, can never be triggered.

This issue before us is a simple question of fact: Did the carrier ever pay compensation under section 440.20(2) or section 440.192(8), Florida Statutes (2002), so as to trigger the pay and investigate provisions of section 440.20(4), Florida Statutes (2002)? Florida law is clear. If it did, compensation is due. If it did not, compensation is not due. Paying compensation pursuant to one of these sections as required, is the only way the pay and investigate provisions of section 440.20(4), Florida Statutes, can be triggered. Payment under any other circumstance or for any other reason, even a mistake, cannot trigger section 440.20(4), Florida Statutes. See Cole v. Fairfield Cmtys. & RSKCO, 908 So.2d 1105 (Fla. 1st DCA 2005) (holding E/C’s mistake in making a chiropractor payment under chapter 440, does not trigger the waiver provisions section 440.20(4), Florida Statutes).

As the majority notes, the statute is clear and unambiguous. Section 440.20(4), Florida Statutes, in relevant part, provides: “A carrier that fails to deny com-pensability within 120 days after the initial provision of benefits or payment of compensation as required, under subsection (2) or s. 440.192(8) waives the right to deny compensability, ...” Id. (Emphasis added). However, for waiver to apply, compensation must have been paid as required pursuant to chapter 440. See § 440.02(7), Fla. Stat. (2002). That did not happen here.

Here, the JCC found the payments were not made pursuant to chapter 440, but were instead made pursuant to Nebraska law. The majority concedes the payments were made pursuant to Nebraska law. {See Majority op. pg. 682). The JCC’s findings are supported by competent, substantial evidence. Since the finding is supported by competent, substantial evidence, this court is not free to substitute its judgment for the JCC. See La. Pac. Corp. v. Harcus, 774 So.2d 751 (Fla. 1st DCA 2000). No compensation paid pursuant to Florida law means no waiver can apply.

Despite agreeing with the JCC that payments were made pursuant to Nebraska law, the majority boldly ignores this fact and constructs a convoluted alternative route to section 440.20(4). The majority reasons: (1) Any right that Claimant might have to receive workers’ compensation depended on Florida law; (2) The E/C mistakenly determined Nebraska law governed Claimant’s entitlement to workers’ compensation; (3) Because Florida law would govern a valid workers’ compensation claim, any mistake made by the E/C must be assumed to be a mistake made under Florida law; (4) Therefore, the E/C’s mistake in determining Nebraska law would govern a workers’ compensation claim is judicially transformed into the E/C mistakenly paying compensation pursuant to Florida law; (5) Once the Nebraska' benefits are judicially transformed into compensation paid pursuant to Florida law, then the pay and investigate provisions are triggered; (6) Since the E/C paid Nebraska benefits for more than 120 days, the E/C is now forever denied a merits determination on the subsequent Florida claim.

Despite the majority’s herculean efforts, we are not free to rewrite chapter 440. The majority’s conclusion ignores the clear statutory language which provides a very limited means to trigger the pay and investigate provisions of section 440.20(4), Florida Statutes. This conclusion also ignores the fact that Florida’s workers’ compensation law is devoid of equitable powers. See Globe Sec. v. Pringle, 559 So.2d 720, 722 (Fla. 1st DCA 1990) (noting workers’ compensation is a creature of statute and must be governed by what the statute provides, “not by what we may feel the law should be”).

It is our obligation to apply the plain language of the statute. Here, Claimant was not prejudiced by the fact that she received Nebraska checks for several months before being informed she would no longer receive those checks. If Claimant, or anyone similarly situated, is entitled to Florida compensation, a petition for benefits would be granted. However, under the majority’s logic, any payment, whether gratuitous, mistaken, made pursuant to the law of another state, or for any other reason, may, if this court so chooses, start the 120 day countdown to waiver of an E/C’s ability to ever adjudicate the merits of a Florida workers’ compensation claim.

For these reasons, I cannot join the majority in their judicial rewrite of chapter 440, and them avoidance of the well-established principle that, for factual questions, a JCC’s findings must be affirmed if supported by competent, substantial evidence. I would affirm the JCC’s factual determination and deny Claimant’s petition for benefits.

      . In addition, in Cole, the employer had inadvertently paid one of the claimant’s chiropractor’s bills even though the chiropractor was not authorized to treat the claimant. Cole, 908 So.2d at 1107. This single payment made in mistake did not mandate a result different than Bussey. Id.

      . The concurring opinion indicates benefits due were controlled by Florida law. However, on the merits, Claimant was not due benefits under either Florida or Nebraska law.

      . See § 440.02(7), Fla. Stat. (2002) (defining compensation as "the money allowance payable to an employee or to his or her dependents as provided for in this chapter.") (emphasis added).

      .The majority opinion conflicts with Cole, 908 So.2d 1105. Florida law provides that the pay and investigate provisions must be intentionally invoked by the E/C. See § 440.20(4), Fla. Stat. (providing "the carrier shall provide written notice to the employee that it has elected to pay the claim pending further investigation ..."); see also Bussey v. Wal-Mart Store # 725, 867 So.2d 542 (Fla. 1st DCA 2004) (holding a failure to take action in response to a petition for benefits does not trigger the pay and investigate provisions).

      . Judge Kahn correctly asserts the waiver provisions of section 440.20(4), have been extant in Florida for over eleven years. Consequently, it is difficult to conceive how he now overlooks the express statutory requirement that payment must be made pursuant to section 440.20(2) or section 440.192(8), for waiver to apply. These two sections have always provided the only means to trigger the waiver provisions, and we are not at liberty to add alternative means to impose waiver.

      . In addition to testimony that no compensation was paid pursuant to Florida law, the record shows the amount of death benefits paid conformed with that payable under Nebraska, not Florida law, and that the carrier did not provide notice to Claimant, the employer or the department, as required by chapter 440, that they were paying compensation. See § 440.20(3), Fla. Stat. (2002).

      .■ This court is not asked to resolve the legal question of which state’s workers’ compensation law, Florida's or Nebraska’s, applies. If this question was relevant, 1 would agree with the majority that if Claimant was entitled to benefits, Florida law would govern. However, the question before this court is whether compensation was ever paid pursuant to Florida law. Contrary to the concurring opinion, this is clearly a factual' question to be answered by the JCC, which this court has "no alternative but to honor” if supported by competent, substantial evidence.


text:
    Stanley R. CARTER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-3207.
    District Court of Appeal of Florida, First District.
    June 28, 2006.
    Rehearing Denied Sept. 18, 2006.
    Stanley R. Carter, pro se, Petitioner.
    Charlie Crist, Attorney General, and John Andrew Atkinson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, VAN NORTWICK, and LEWIS, JJ., concur.


author: VILLANTI, Judge. CANADY, Judge,

text:
    George Ernest MUNOZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1297.
    District Court of Appeal of Florida, Second District.
    July 28, 2006.
    Rehearing Denied Sept. 28, 2006.

      James Marion Moorman, Public Defender, and Steven L. Bolotin,. Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

George Munoz appeals his judgment and sentence as a habitual felony offender to fifteen years’ prison. • for burglary of a dwelling, a second-degree felony. See § 810.02(3), Fla. Stat. (2004). He argues that the house under construction which he is accused of burglarizing cannot qualify as a dwelling and that his conviction should therefore be reduced to burglary of an unoccupied structure, a third-degree felony. See § 810.02(4)(a). We agree and reverse.

Ishmauel Dudley testified that he purchased the late nineteenth-century house burglarized by Munoz from its previous occupants to restore and resell. It was unoccupied at the time of the burglary. Dudley and his construction crew were reworking the house “from the ground up” — “adding two bedrooms, two bathrooms ... totally restoring [the] house” and adding a second-floor loft. They had removed a couple of the “anterior walls” and all of the plaster in order to insulate the house. A back door was removed and replaced with a “piece of plywood.” And, at the time of the burglary, the phases of' construction and inspections were incomplete. The pictures of the house entered into evidence show a house that had been gutted — no insulation or sheetrock, unfin-’ ished flooring, debris everywhere, stacks of plywood, exposed walls, and wires dangling from the ceiling.! The pictures also show garbage, buckets, and work supplies on the floor. The house had a roof over it, a bathtub, a minirefrigerator, a microwave, and miscellaneous items left behind by construction workers including clothes,. tools, and tool boxes. The house also had plumbing and electricity, but the power system was temporary and “for construction purposes” only and the indoor plumbing was not in use; the workers used the Port-O-Let prominently standing in the front yard.

It is undisputed that this house previously qualified as a dwelling under section 810.011. Section 810.011(2) defines a “dwelling” as “a building or conveyance of any kind, including any attached porch, whether such building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it and is designed to be occupied by people lodging therein at night, together with the curti-lage thereof.” (Emphasis added.)

The house here had a roof over it, was designed to be occupied by people lodging therein at night, and in fact had been occupied for decades. The issue is whether it still qualifies as a dwelling even though it was undergoing massive reconstruction at the time of the burglary. In Gonzalez v. State, 724 So.2d 126, 127 n. 1 (Fla. 3d DCA 1998), the Third District noted that a home under construction but nearing completion qualified as a dwelling. However, this statement was dicta because the question of whether a home under construction was a dwelling was not at issue. Further, Gonzalez did not address the language of the most recent Florida Supreme Court case on the issue, Perkins v. State, 682 So.2d 1083 (Fla.1996), discussing suitability for lodging. In Anderson v. State, 831 So.2d 702, 703 (Fla. 4th DCA 2002), the Fourth District correctly noted that the language in Gonzalez was dicta but refrained from commenting on whether a home under construction could qualify as a dwelling under the burglary statute. Therefore, this issue has apparently not been previously addressed in Florida.

In State v. Bennett, this court concluded that as long as a structure is “ ‘designed’ for eventual human habitation,” it qualifies as a dwelling. 565 So.2d 803, 805 (Fla. 2d DCA 1990) (finding that a mobile home unconnected to utilities arid sitting on a sales lot qualified as a dwelling under section 810.011). However, in Perkins, 682 So.2d 1083, the Florida Supreme Court suggested that a house designed for lodging by people but unsuitable for lodging may not qualify as a dwelling. In Perkins, the court noted that “the legislature has extended broad protection to buildings or conveyances of any kind that are designed for human habitation. Hence, an empty house in a neighborhood is extended the same protection as one presently occupied.” Id. at 1085. The court further stated:

“Occupancy is no longer a critical element under this [statutory] definition. Rather, it is the design of the structure or conveyance which becomes paramount. If a structure or conveyance initially qualifies under this definition, and its character is not substantially changed or modified to the extent that it becomes unsuitable for lodging by people, it remains a dwelling irrespective of actual occupancy. It is, therefore, immaterial whether the owner of an unoccupied dwelling has any intent to return to it.”

Id. at 1084 (alteration in original; emphasis added) (quoting Perkins v. State, 630 So.2d 1180, 1181-82 (Fla. 1st DCA 1994)). Thus, Perkins recognized that to qualify as a dwelling, the structure must not only be designed to be occupied by people for lodging therein at night, but also that it must not be substantially changed to the extent that it becomes unsuitable for lodging by people. The only exception would be that created by the legislature in section 810.011 — if a structure became unsuitable for lodging because of substantial changes occurring during a state of emergency. For instance, if a hurricane caused a wall of a house to collapse, the remaining portions or remnants of the house would still qualify as a dwelling despite the fact that the character of the house had substantially changed to the extent that the house was unsuitable for lodging.

The state of emergency exception is the only one in the statute. Under the analysis in Bennett, the state of emergency exception is unnecessary for houses bereft of walls during a state of emergency because such houses are still designed for lodging. The state of emergency exception makes sense only if, as suggested by Perkins, the definition of dwelling requires that the structure is both designed for lodging by people and suitable for lodging by people. See State v. Goode, 880 So.2d 817, 824 (Fla.2002) (noting that it is also a basic rule of statutory construction that “the Legislature does not intend to enact useless provisions, and courts should avoid readings that would render part of a statute meaningless”). The legislature specifically protected houses made unsuitable for lodging during states of emergency; it did not provide the same protection for houses unsuitable for lodging for other reasons, for instance because of reconstruction or renovation. According to section 810.011 and Perkins, if the character of the house is substantially changed to the extent that it becomes unsuitable for lodging for some reason other than during a state of emergency, there is no statutory exception and the house no longer qualifies as a dwelling.

The house owned by Dudley stands in stark contrast to the one discussed in Perkins, which was clearly suitable for lodging. See 682 So.2d at 1084 (discussing the house’s electricity, available well water, stove, refrigerator, washer, microwave, and assorted items in the closets and cabinets). Dudley’s house was missing interi- or walls, sheetrock, and insulation. It was undergoing a total restoration, and the inspections of it were not yet completed. The facts that the construction workers used a temporary power pole, a minifridge, and an old microwave, shown in the pictures surrounded by stacks of garbage, buckets, and work supplies, did not make this construction site suitable for lodging by any stretch of the imagination.

Applying Perkins, the house here no longer met the definition of a dwelling under the burglary statute. See Perkins, 682 So.2d 1083 (concluding that a house that was unoccupied but suitable for lodging qualified as a dwelling). Additionally, it did not meet the statutory exception for houses made unsuitable for lodging during a state of emergency.

The evidence that Munoz entered the house under construction with intent to commit a theft was insufficient to sustain a conviction for burglary of a dwelling. As Munoz concedes, the evidence could have sustained a conviction for burglary of an unoccupied structure, see § 810.02(4)(a), which was submitted to the jury as a lesser-included offense. Therefore, we reverse Munoz’s conviction and sentence for burglary of a dwelling and remand to the trial court with directions to enter a judgment of guilty of the lesser charge of burglary of an unoccupied structure and to resentence Munoz.

Reversed and remanded.

DAVIS, J., Concurs.

CANADY, J., Dissents with opinion.

CANADY, Judge,

Dissenting.

The majority correctly determines that the house which was burglarized by Munoz “had a roof over it, was designed to be occupied by people lodging therein at night, and in fact had been occupied for decades.” (Emphasis added.) Despite this determination, the majority goes on to hold that because the renovation project had rendered the house “unsuitable for lodging,” the burglarized house was not a “dwelling” under chapter 810. The majority criticizes the analysis employed by this court in Bennett and rejects it in favor of a line of analysis the majority believes is “suggested” by the supreme court in Perkins. I dissent because I conclude that the rationale of Bennett should control the disposition of the instant case. For the reasons I will explain, I conclude that the majority has misread Perkins.

In Bennett, 565 So.2d at 804, we considered whether a “mobile home which was located on a sales lot” and which “was fully furnished but unoccupied and not connected to utilities” could be considered a dwelling under chapter 810. We held that “in order to establish that the structure is a ‘dwelling’ within the purview of the burglary statute, we believe the state must introduce some evidence that it is actually to be used for habitation.” Id. at 805. In reaching this conclusion, the Bennett court stated that “the plain meaning of the word ‘designed’ supports the state’s argument” that the statutory definition of “dwelling” is “broad enough to cover a mobile home on a sales lot, because it is ‘designed’ for eventual human habitation.” Id. (emphasis added).

The Bennett court thus focused on “the plain meaning of the word ‘designed’ ” in the statutory definition of dwelling. The court understood that the designed use of a structure denotes the purpose for which the structure is eventually intended to be used. The court’s analysis on this point is cogent. Design means “to plan or have in mind as a purpose” or “to devise or propose for a specific function.” Webster’s Third New International Dictionary 611 (1993).

Under the rationale employed in Bennett, the structure burglarized by Munoz in the instant case falls within the meaning of “dwelling” because the structure was “ ‘designed’ for eventual human habitation.” 565 So.2d at 805. The structure falls within the statutory definition because it undisputedly both (a) “has a roof over it” and (b) “is designed to be occupied by people lodging therein at night.” § 810.01(2). The designed use of the structure is not changed by transitory circumstances — such as a major renovation project — that render the premises temporarily uninhabitable.

A mobile home located on a sales lot and unconnected to utilities would not be suitable for current habitation. But under Bennett’s reading of the plain language of the statute, even though such a structure is temporarily unsuitable for habitation, it will be considered a “dwelling” if it is intended for “eventual human habitation.” The current habitability test utilized by the majority therefore is inconsistent with the plain language of the statute and cannot be reconciled with the rationale utilized by the Bennett court.

The majority apparently recognizes that its decision is in tension with the holding in Bennett but concludes that the supreme court’s decision in Perkins provides the appropriate basis for deciding this case. In nay view, the majority’s understanding of Perkins is not supportable.

In Perkins, the court considered whether an unoccupied structure qualified as a dwelling under chapter 810. Recognizing that under the common law there was a “requirement that the house be occupied or that the owner intend to return,” the court concluded that the adoption of the statutory definition of “dwelling” had effected a change in the substance of the law. 682 So.2d at 1084. The court — following the analysis of the First District— held that actual or intended occupancy was not necessary for a structure to be a dwelling under the statutory definition. Quoting the opinion of the First District, the court explained the significance of the statutory definition:

“Occupancy is no longer a critical element under this [statutory] definition. Rather, it is the design of the structure or conveyance which becomes paramount. If a structure or conveyance initially qualifies under this definition, and its character is not substantially changed or modified to the extent that it becomes unsuitable for lodging by people, it remains a dwelling irrespective of actual occupancy. It is, therefore, immaterial whether the owner of an unoccupied dwelling has any intent to return to it.”

Id. (alteration in original) (quoting Perkins v. State, 630 So.2d 1180, 1181-82 (Fla. 1st DCA 1994)).

From this statement, the majority in this case reasons that to maintain the status of a dwelling, a structure “must not be substantially changed to the extent that it becomes unsuitable for lodging by people.” The majority thus concludes that when a renovation project' — such as the one involved in this case — is undertaken on a house, the house loses its status as a dwelling because the ongoing renovation project makes the house unsuitable for lodging.

In reaching this conclusion, the majority fails to give due weight to the importance the Perkins court assigns to the word “designed” in the statutory definition. Perkins makes clear beyond any doubt that in determining whether a structure is a dwelling, “ ‘it is the design of the structure’ ” which is “ ‘paramount.’ ” Id. (quoting Perkins, 630 So.2d at 1181). Perkins also acknowledges that the statute extends “broad protection to buildings ... of any kind that are designed for human habitation.” Id. at 1085. And the supreme court in Perkins specifically focuses on the fact that “the owner [of the structure] intended it be used” as a structure for lodging people at night. Id.

In context, the reference in Perkins to the requirement that a structure’s “ ‘character ... not [be] substantially changed or modified to the extent that it becomes unsuitable for lodging,’ ” 682 So.2d at 1084 (quoting Perkins, 630 So.2d at 1181) (emphasis added), must be understood as a requirement that the use for which the structure is designed not be altered. What is in view is the possibility that a residential structure will be converted to a commercial or other nonresidential use. The change in “character” that the court envisions is a change in the designed purpose of the structure. Such a change in character does not include circumstances which may temporarily render a structure uninhabitable but which do not alter the purpose for which the structure is intended to be used. In the instant case, the character or the designed use of the structure remained unchanged even though the renovation project may have rendered the property temporarily unsuitable for habitation.

The tension which the majority apparently finds between Bennett and Perkins is illusory. The lack of any inconsistency between Bennett and Perkins is highlighted by the fact that in the First District’s Perkins opinion, the court discussed and relied on Bennett’s interpretation of “the plain meaning of the word ‘designed’ contained in the statute.” Perkins v. State, 630 So.2d 1180, 1182 (Fla. 1st DCA 1994). The First District expressly “adopt[ed] the[] rationale” of Bennett. Id. The supreme court in turn in its Perkins opinion approved the First District’s decision.

As I mentioned earlier, the majority acknowledges that the structure at issue here was “designed to be occupied by people lodging therein at night.” Given the text of the statutory definition, that characterization of the structure should be of crucial importance. But the majority brushes aside its own characterization of the design of the structure, overlooks the “paramount” importance that Perkins assigns to the “design of the structure,” and then deploys a test — current habitability— that is inconsistent with the plain language of the statute and cannot be reconciled with the rationale of our decision in Bennett.

The majority is unjustified in relying on the second sentence of the definition of dwelling in section 810.011(2) to transform the meaning of the first sentence of that definitional provision. The majority reasons that the “state of emergency exception” in the second sentence of the statutory definition “makes sense only if ... the definition of dwelling requires both that the structure is designed for lodging by people and suitable for lodging by people.” (Emphasis supplied.)

While the definition of dwelling was added to the statute in 1982, see ch. 82-87, § 1, Laws of Fla., the second sentence of section 810.011(2) was added effective June 1,1993, to the definitional provision, see ch. 92-351, § 1, Laws of Fla. The latter addition to the statute is designed to ensure that dwellings damaged during a state of emergency do not lose the protection of the penalties for burglary of a dwelling. Under this provision, a house that has lost its roof or has collapsed during a state of emergency would continue to be considered a dwelling. The provision was necessary because under the definition in the first sentence of section 810.011(2), a structure is a not a dwelling unless it has a roof over it. Furthermore, a collapsed structure might fall outside the definition of dwelling because it would not be considered “a building.”

Accordingly, it is by no means necessary to accept the interpretation of dwelling adopted by the majority to make sense of the state of emergency provision. That provision deals with circumstances where a dwelling suffers such extensive structural damage during a state of emergency that it would no longer be covered by the definition of dwelling in the first sentence of section 810.011(2). There is no inconsistency between the state of emergency provision and the interpretation adopted by this court in Bennett. Bennett’s understanding of the meaning of “dwelling” clearly does not encompass the range of circumstances covered by the state of emergency provision. Furthermore, given the statutory history — which evidences a legislative purpose to expand the coverage of the statute — the majority is unjustified in using the second sentence of section 810.011(2) as a basis for jettisoning the plain meaning of the first sentence of that subsection and thereby contracting the coverage of the statute. In doing so, the majority allows the statutory tail to wag the dog.

      . We believe that Dudley meant that the interior walls had been removed to install insulation; as is suggested by the pictures of the house.

      . In Gonzalez, 724 So.2d 126, the defendant had removed air compressors from concrete pads adjacent to houses under construction. The Third District reversed because the compressors were not located within the houses or within the curtilage of the houses.

      . Bennett, decided before Perkins, did not address whether a mobile home on a sales lot was suitable for lodging.

      . The exception in section 810.011(2) states, "However, during the time of a state of emergency declared by executive order or proclamation of the Governor under chapter 252 and within the area covered by such executive order or proclamation and for purposes of ss. 810.02 and 810.08 only, the term [dwelling] includes such portions or remnants thereof as exist at the original site, regardless of absence of a wall or roof.”