text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—No. 2006-1.
    No. SC06-909.
    Supreme Court of Florida.
    Dec. 21, 2006.
    The Honorable Terry David Terrell, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, First Judicial Circuit, Pensacola, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed amendments to Standard Jury Instructions in Criminal Cases 7.7, Manslaughter; 7.8, DUI Manslaughter; and 7.9, Vehicular Homicide. We have jurisdiction. See art. V, § 2(a), Fla. Const.

Before submitting the proposals to the Court, the Committee published the proposals for comment in The Florida Bar News. No comments were received. The proposed amendments to instruction 7.7, Manslaughter, are in response to statutory amendments made since the last update to the instructions. The proposed amendments for instruction 7.8, DUI Manslaughter, make only minor changes to the existing instruction. The proposed amendments to instruction 7.9, Vehicular Homicide, revise the instruction to also address vessel homicide.

Having considered the Committee’s report, we hereby authorize .the publication and use of the instructions as set forth in the appendix to this opinion. In doing so, we express no opinion on the correctness of the instructions and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any notes and comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining, and deleted language is struck-through. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

7.7 MANSLAUGHTER

§ 782.07, Fla. Stat.

To prove the crime of Manslaughter, the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) is dead.

Give 2a, 2b, or 2c depending upon allegations and proof.

2. a. (Defendant) intentionally caused the death of (victim).

b. (Defendant) intentionally procured the death of (victim).

c. The death of (victim) was caused by the culpable negligence of (defendant).

However, the defendant cannot be guilty of manslaughter if the killing was either justifiable or excusable homicide as I have previously explained those terms.

Give only if 2(a) alleged and proved, and manslaughter is being defined as a lesser included offense of first degree premeditated murder.

In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that the defendant had a premeditated intent to cause death.

Give only if 2b alleged and proved.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Give only if 2c alleged and proved.

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard for the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.

The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

Give only if 2(a) alleged and proved,- and-manslaughter is being defined as-a lesser included offense of first degree premeditated murder

In order to convict of-manslaughter by intentional act, it is not necessary-for the State to prove that the defendant had a premeditated intent — to cause death,

§ 782.07(2)-(⅛), Fla. Stat. Enhanced penalty if 2c alleged and proved. Give a, b, or c, as applicable.

If you find the defendant guilty of manslaughter, you must then determine whether the State has further proved beyond a reasonable doubt that:

a. (Victim) was at the time [an elderly person] [a disabled adult] whose death was caused by the neglect of (defendant), a caregiver.

b. (Victim) was a child whose death was caused by the neglect of (defendant), a caregiver.

c. (Victim) was at the time [an officer] [a firefighter] [an emergency medical technician] [a paramedic] who was at the time performing duties that were within the course of [his] [her] employment. The court now instructs you that (official title of victim) is [an officer] [a firefighter] [an emergency medical technician] [a paramedic].

Definitions. Give if applicable.

“Child” means any person under the age of 18 years.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age, organic brain damage, or physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s own care or protection is impaired.

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to developmental disability, organic brain dam age, or mental illness, or who has one or more physical or mental limitations that restrict the person s ability to perform the normal activities of daily living.

“Facility” means any location providing day or residential care or treatment for elderly persons or disabled adults. The term “facility” may include, but is not limited to, any hospital, training center, state institution, nursing home, assisted living facility, adult family-care home, adult day care center, group home, mental health treatment center, or continuing care community.

As applied to an Elderly Person or a Disabled Adult

“Caregiver” means a person who has been entrusted with or has assumed responsibility for the care or the property of an elderly person or a disabled adult. “Caregiver” includes, but is not limited to, relatives, court-appointed or voluntary guardians, adult household members, neighbors, health care providers, and employees and volunteers of facilities.

As applied to a Child.

“Caregiver” means a parent, adult household member, or other person responsible for a child s welfare.

§ 825.102(8)(a) or § 827.03(S)(a), Fla. Stat Give 1 or 2 as applicable.

“Neglect of [a child”] [“an elderly person”] [“a disabled adult”] means:

1. A caregiver’s failure or omission to provide [a child] [an elderly person] [a disabled adult] with the care, supervision, and services necessary to maintain [a child’s] [an elderly person’s] [a disabled adult’s] physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the [child] [elderly person] [disabled adult];

or

2. A caregiver s failure to make reasonable effort to protect [a child] [an elderly person] [a disabled adult] from neglect by another person.

Repeated conduct or a single incident or omission by a caregiver that results in, or could reasonably be expected to result in, a substantial risk of death of [a child] [an elderly person] [a disabled adult] may be considered in determining neglect.

Definitions. As applied to Designated Personnel.

§ 112.191 and § 633.35, Fla. Stat.

“Firefighter” means any full-time duly employed uniformed firefighter employed by an employer, whose primary duty is the prevention and extinguishing of fires, the protection of life and property there from, the enforcement of municipal, county, and state fire prevention codes, as well as the enforcement of any law pertaining to the prevention and control of fires, who is certified by the Division of State Fire Marshal of the Department of Financial Services, who is a member of a duly constituted fire department of such employer or who is a volunteer firefighter.

§ US.IO(U), Fla, stat.

“Officer” means any person employed or appointed as a full-time, part-time, or auxiliary law enforcement officer, correctional officer, or correctional probation officer.

§ 4,01.28, Fla. Stat.

“Emergency Medical Technician” means a person who is certified by the Department of Health to perform basic life support.

§ Jf.01.2S, Fla. Stat.

“Paramedic” means a person who is certified by the Department of Health to perform basic and advanced life support.

Lesser Included Offenses

MANSLAUGHTER — 782.07

CATEGORY ONE CATEGORY TWO FLA. STAT._INS. NO.

None_

_Vehicular homicide 782.071_L9_

_Vessel homicide_782,072_7.9

(Nonhomicide lessers) 777.04(1) 5.1 _Attempt_

_Battery_ . 784.03_8B_

_Assault_784.011_81_

Culpable negligence 784.05&9

Comment

In the event of any reinstruction on manslaughter, the instructions on justifiable and excusable homicide as previously given should be given at the same time. Hedges v. State, 172 So.2d 824 (Fla.1965).

In appropriate cases, an instruction on transferred intent should be given.

Trial judges should carefully study Eversley v. State, 748 So.2d 963 (Fla.1999), in any manslaughter case in which causation is an issue to determine if a special jury instruction on causation is needed.

To be found guilty of Aggravated Manslaughter, there is no statutory requirement that the defendant have knowledge of the classification of the victim; therefore, the schedule of lesser included offenses does not include Aggravated Battery on a Law Enforcement Officer, Aggravated Assault on a Law Enforcement Officer, Battery oh a Law Enforcement Officer, or Assault on a Law Enforcement Officer. Those offenses have a different definition of officer. Additionally, the excluded lesser included offenses require proof of knowing that the commission of the offense was on an officer who was engaged in the lawful performance of a legal duty.

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1992 [603 So.2d 1175], 1994 [636 So.2d 502], and 2005 [911 So.2d 1220] and 2006.

7.8 DUI MANSLAUGHTER

§ 316.193(3)(c)3, Fla. Stat.

To prove the crime of DUI Manslaughter, the State must prove the following three elements beyond a reasonable doubt:

1. (Defendant) drove or was in actual physical control of a vehicle.

Give 2a or 2b as applicable.

2. While driving or while in actual physical control of the vehicle, (defendant)

Give 2a or 2b as applicable

a. was under the influence of [alcoholic beverages] [a chemical substance] [a controlled substance] to the extent that [his] [her] normal faculties were impaired.

b. had a blood or breath alcohol level of 0.08 or higher.

3. As a result, (defendant) caused or contributed to the cause of the death of (victim). See Magaw v. State, 537 So.2d561p (Fla.1989).

Definitions. Give as applicable. § 316.003(75), Fla. Stat.

“Vehicle” is any every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, except devices used exclusively upon stationary rails or tracks.

“Normal faculties” include but are not limited to the ability to see, hear, walk, talk, judge distances, drive an automobile, make judgments, act in emergencies and, in general, to normally perform the many mental and physical acts of our daily lives.

“Actual physical control of a vehicle” means the defendant must be physically in or on the vehicle and have the capability to operate the vehicle, regardless of whether [he] [she] is actually operating the vehicle at the time.

“Alcoholic beverages” are considered to be substances of any kind and description which contain alcohol.

§ 877.111(1), Fla. Stat.

(Specific substance alleged) is a chemical substance under Florida law.

Chapter 893, Fla. Stat.

(Specific substance alleged) is a controlled substance under Florida law.

In appropriate cases, an instruction may be given on one or more of the presumptions of impairment established by §- § 316.1934(2)(a), (2)(b)rand (2)=(c), Fla. Stat., as follows:

1.If you find from the evidence that the defendant had a blood or breath alcohol level of 0.05 or less, you shall presume that the defendant was not under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

2. If you find from the evidence that the defendant had a blood or breath alcohol level in excess of 0.05 but less than 0.08, you may consider that evidence with other competent evidence in determining whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired; or

3. If you find from the evidence that the defendant had a blood or breath alcohol level of 0.08 or more, that evidence would be sufficient by itself to establish that the defendant was under the influence of alcohol to the extent that [his] [her] normal faculties were impaired. However, such evidence may be contradicted or rebutted by other evidence.

These presumptions may be considered along with any other evidence presented in deciding whether the defendant was under the influence of alcoholic beverages to the extent that [his] [her] normal faculties were impaired.

Defense of inoperability. Give if applicable.

It is a defense to the charge of driving or being in actual physical control of a vehicle while under the influence if at the time of the alleged offense the vehicle was inoperable.

However, it is not a defense if, while impaired, the defendant drove or was in actual physical control of the vehicle before it became inoperable.

Therefore, if you are not convinced beyond a reasonable doubt that the vehicle was operable at the time of the alleged offense, you should find the defendant not guilty.

However, if you are convinced that the vehicle was operable at the time of the alleged offense, then you should find the defendant guilty if all the other elements of the charge have been proved beyond a reasonable doubt.

Lesser Included Offenses

DUI MANSLAUGHTER — 316.193(3)(c)(3)

CATEGORY ONE CATEGORY TWO FLA. STAT._INS. NO.

DUI_316.193_28.1

DUI serious bodily 316.193(3)(c)2 28.3 _injury_

DUI damage to or 316.193(3)(c) _person or property_

Vehicular homicide 782.071_7J)

Comment

This instruction was adopted in 1981 and amended in 1985 [477 So.2d 985], 1987 [508 So.2d 1221], 498⅜ 1992 [603 So.2d 1175], 1995 [665 So.2d 212], and 1998 [723 So.2d 123], and 2006.

7.9 VEHICULAR OR VESSEL HOMICIDE

§ 782.071 or § 782.072, Fla. Stat.

To prove the crime of [Vehicular] [Vessel] Homicide, the State must prove more than a failure to use ordinary care, and must prove the following three elements beyond a reasonable doubt:

1. (Victim) is dead}.

2. The death was caused by the operation of a [motor vehicle] [vessel] by (defendant).

3. (Defendant) operated the [motor vehicle] [vessel] in a reckless manner likely to cause the death of or great bodily harm to another person.

An intent by the defendant to harm or injure the victim or any other person is not an element to be proved by the State.

Enhanced penalty. § 782.071(l)(b) or § 782.072(2), Fla. Stat. Give if applicable.

If you find the defendant guilty of [vehicular] [vessel] homicide, you must then determine whether the State has further proved beyond a reasonable doubt that:

L At the time of the accident, (defendant) knew, or should have known, that the accident occurred; and

2. (Defendant) failed to give information and render aid as required by law. (Read applicable portion of § 316.062, Fla. Stat, as charged in information or indictment.)

However, the State is not required to prove (defendant) knew that the accident resulted in injury or death.

Definitions

§ 782.071(2), Fla. Stat. Applicable only to Vehicular Homicide.

“Victim” includes a human being or a viable fetus which is killed as a result of any injury to the mother. A fetus is viable when it becomes capable of meaningful life outside the womb through standard medical measures.

§ 327.02(39) Fla. Stat. Applicable only to Vessel Homicide.

“Vessel” is synonymous with boat and includes every description of watercraft, barge, and airboat, other than a seaplane on the water, used or capable of being used as a means of transportation on water.

Lesser Included Offenses

VEHICULAR OR VESSEL HOMICIDE — 782.071 or 782.072

CATEGORY ONE CATEGORY TWO FLA. STAT._INS. NO.

Reckless driving_316.192_28.5

Reckless or Careless 327.33

Operation of Vessel_

Culpable negligence 784.05&9

Comment

Culpable negligence is a Category Two lesser included offense of both vehicular and vessel homicide.

This instruction was adopted in 1981 and amended in 1989 and 2006.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    John E. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2046.
    District Court of Appeal of Florida, First District.
    Oct. 20, 2006.
    John E. Smith, pro se, Appellant.
    Charlie Crist, Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant’s sentence is illegal and the procedural bar would result in manifest injustice, we reverse the trial court’s denial and remand for resentencing.

The appellant was charged with two counts of armed robbery on January 16, 1984. The appellant was convicted of both counts by a jury. The trial court sentenced the appellant under the 1984 guidelines to two concurrent life sentences. The appellant filed several motions seeking relief from his sentence. In the motion on appeal, the appellant alleged that his sentence is illegal because he was sentenced pursuant to invalid guidelines. The trial court denied his motion as procedurally barred.

The appellant is correct in his assertion that his sentence is illegal. In Smith v. State, 537 So.2d 982 (Fla.1989), the supreme court declared that the guidelines did not become effective until they were adopted by the Legislature on July 1, 1984. In Smith, the supreme court also declared that any person sentenced for a crime committed prior to the effective date must affirmatively elect to be sentenced under the guidelines. Id. at 987. The appellant committed both of his crimes before this date and did not affirmatively elect to be sentenced under the guidelines; therefore, the trial court “was without legal authority to sentence the appellant under the guidelines.” Fowler v. State, 641 So.2d 941, 942 (Fla. 5th DCA 1994); see also Kunkel v. State, 765 So.2d 244 (Fla. 1st DCA 2000) (reversing the denial of a rule 3.800(a) motion in which the defendant claimed that his sentence was illegal because “he was not given the opportunity to elect to be sentenced under thé pre-sentencing guidelines law, pursuant to which he would be eligible for parole”).

The trial court determined that the appellant had previously raised this claim in a prior motion and that' he was collaterally estopped from raising it in the motion on appeal. Despite this procedural bar, however, the appellant is entitled to relief. Because the appellant has an opportunity to be eligible for parole upon resentencing, the application of the procedural bar in this case would result in manifest injustice. See State v. McBride, 848 So.2d 287, 291-292 (Fla.2003); see also Johnson v. State, 902 So.2d 276 (Fla. 1st DCA 2005).

We, therefore, reverse the trial court’s denial of the appellant’s motion and remand for resentencing under the preguide-lines law.

REVERSED and REMANDED.

BROWNING, C.J., DAVIS and LEWIS, JJ., concur.


author: PLEUS, C.J.

text:
    David A. SIEGEL, Appellant, v. Bettie I. WHITAKER, f/k/a Bettie I. Siegel, Appellee.
    No. 5D05-2652.
    District Court of Appeal of Florida, Fifth District.
    Nov. 9, 2006.
    Certification Denied Dec. 18, 2006.

      Keith Mitnik, of Morgan & Morgan, P.A., Orlando, for Appellant.
    Mayanne Downs, of King, Blackwell, Downs & Zehnder, P.A., Orlando, for Ap-pellee.
   PLEUS, C.J.

David Siegel appeals from a final judgment entered in favor of his former wife, Bettie Whitaker.

The parties were divorced in 1997 and their financial affairs were resolved pursuant to a Marital Settlement Agreement (“MSA”). The relevant provisions of the MSA provide:

6. SETTLEMENT TERMS. This Marital Settlement Agreement is intended to resolve all business and marital property issues, and all claims between the parties (except for those issues and claims arising under this Marital Settlement Agreement), including but not limited to, any claims for equitable distribution of assets and properties, as well as any claims for alimony. DAS [former husband] shall pay to BIS [former wife] or her estate the sum of $200,000,000.00 in consideration for which BIS shall transfer, convey, and assign to DAS all of her stock and property interests in Central Florida Investments, Inc. (“CFI”), Westgate Resorts, Ltd. (“Resorts”), their related and affiliated entities identified as signatories to that certain Stock Pledge and Escrow Agreement executed by the parties of even date herewith, and all other entities, marital properties and assets that are owned either jointly or individually by DAS and BIS (except those specifically reserved to BIS as provided for elsewhere in this Settlement Agreement), which foregoing entities are hereinafter referred to singly or in the aggregate as the “CFI Entities.”
7.(b) Transfer of Properties. The balance of the total settlement amount ... shall be satisfied by the transfer, conveyance and assignment by DAS to BIS ... of all right, title, or interest that he has or may have in the following marital properties: (1) The Chase Road House ..., together with all of its contents, motor vehicles and boats usually found on or about said real property.

Prior to their divorce, the parties resided at the Chase Road home, from 1994, when it was completed, to October, 1996. In 1999, the former wife filed a lawsuit in Orange County Circuit Court against Capri Homes, Inc., general contractor on the home, and a consultant, Mario Prieto, alleging construction defects in installation of the windows at the Chase Road residence. Her claim included counts for breach of implied warranty, breach of oral contract, and fraudulent inducement based on the design and construction of the home.

The former husband did not seek to intervene in the Capri/Prieto litigation but instead, in June 2004, filed a three-count complaint against the former wife alleging that the Capri/Prieto claim was a chose in action which belonged to him under the MSA. The former husband alleged breach of the MSA, sought injunctive relief,.and asked for a constructive trust in his favor in .the amount recovered by the former wife.

The former wife answered denying that her former husband was entitled to relief, and filed a motion to dismiss with prejudice or alternative motion for judgment on the pleadings.

The former husband interposed a motion for summary judgment which took the position that reference in the MSA to the Chase Road home was insufficient as a matter of law to grant the former'wife any rights to the Capri/Prieto claim. According to the former husband, because the Capri/Prieto claim was not specifically referenced in the MSA as an asset to be retained by the former wife, he was entitled to the claim.

The Capri/Prieto lawsuit was settled in 2005. The trial court entered an order granting the former wife’s motions .and denying the former husband’s motion. The court noted that the former husband had actually Tiled an affidavit in the Capri/Prieto litigation asserting that the claim was time-barred. The court concluded that the former wife’s construction of the MSA was more persuasive,'that the .former husband’s transfer of all his “right, title or interest” in the Chase Road house included whatever right he may have had in the chose in action related to the house.

This court applies the de novo standard of review where the trial court grants judgment as a matter of law. See, e.g., Martinez v. Florida Power & Light Co., 863 So.2d 1204 (Fla.2003) (granting motion for judgment on the pleadings); Rittman v. Allstate Insurance Co., 727 So.2d 391 (Fla. 1st DCA 1999) (dismissing complaint for failure to state cause of action).

In passing on a motion for judgment on the, pleadings made by a defendant, all well-pleaded material allegations .of the complaint and all fair inferences to be drawn therefrom are taken as true and the inquiry concerns whether the plaintiff has stated a viable cause of action. Martinez. The applicable test is the same as if the defendant made a motion to dismiss for failure to state a cause of action. Henao v. Professional Shoe Repair, 929 So.2d 723 (Fla. 5th DCA 2006). A motion for judgment on the pleadings is decided only on the pleadings and attachments thereto and may be granted only if the movant is entitled to judgment as a matter of law. Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006).

The former husband initially argues that the former wife impermissibly relied entirely on allegations contained in her answer and affirmative defenses in obtaining judgment on the pleadings. See Jaramillo v. Dubow, 588 So.2d 677 (Fla. 3d DCA 1991) (defendant cannot obtain judgment on the pleadings on basis of allegations contained, in his or her answer or affirmative defenses since such allegations are deemed denied and taken as false). This contention, however, ignores the fact that the former husband, in his complaint, quotes from paragraph 7(b) of the MSA. The former husband additionally attached the MSA as an exhibit to his complaint. The trial court’s ruling in favor of the former wife is expressly predicated on matters contained in the complaint and attachments thereto.

The thrust of the former husband’s complaint is twofold: (1) that the Capri/Prieto claim was a chose in action which constituted marital property, see Hoirup v. Hoirup, 862 So.2d 780 (Fla. 2d DCA 2003) (referring to chose in action as a marital asset), which (2) was retained by the former husband under paragraph 6 of the MSA.

The former wife concedes the claim was marital property but maintains that it was distributed to her under paragraph 7(b) of the MSA.

The former husband relies on Ginsberg v. Lennar Florida Holdings, Inc., 645 So.2d 490 (Fla. 3d DCA 1994) for the contention that his former wife could not bring the Capri/Prieto claim without an assignment from him. In that case, Ginsberg owned and operated MLG Properties, Inc. (“MLG”), a property management firm. Ginsberg was also the general partner of two limited partnerships each of which owned an apartment complex. Both complexes were managed by MLG. In 1988, both limited partnerships gave mortgages to Amerifirst Bank on their properties which mortgages Ginsberg signed as general partner.

Lennar Florida Holdings, Inc. and MS Florida Corporation were general partners of a real estate investment limited partnership, which was the mortgage holder on the apartment complexes. Lennar purchased these mortgages from the Resolution Trust Corp. (“RTC”) in July of 1992. The RTC had acquired these mortgages in March of 1991 from Amerifirst Bank after the RTC was appointed receiver of Ameri-first.

Lennar filed a complaint against Ginsberg and MLG alleging conversion, civil theft, RICO violations and Chapter 772.103(4) violations against Ginsberg and MLG and waste against MLG. Lennar attached a copy of the assignment of mortgage from the RTC and original mortgage loan agreement.

The Third District ruled that Lennar had not alleged a breach of duty separate and apart from the contractual duties which bound MLG and the partnerships, and that MLG could only be liable to those with whom it had contracted. The court also found that as a matter of law the counts for conversion and waste against MLG failed to state a cause of action upon which relief could be based. The Third District stated:

“Initially, we note that assignability of a cause of action is the rule rather than the exception.” See Selfridge v. Allstate Ins., 219 So.2d 127, 128 (Fla.App.1969). A party may assign almost any cause of action, with the noted exception of claims for personal injury, see and compare Selfridge; Florida Power Corp. v. McNeely, 125 So.2d 311 (Fla.App.1960); State Road Dep’t v. Bender, 147 Fla. 15, 2 So.2d 298 (1941); Notarian v. Plantation AMC Jeep, 567 So.2d 1034 (Fla. 4th DCA 1990).
Where the cause of action arises out of an injury to property, that action is personal to the owner of the property and a party who subsequently takes title to the property, without receiving an assignment of that cause of action, may not pursue that cause of action. See Selfridge; Florida Power.
In order to pursue a cause of action the subsequent purchaser of the property must allege that they became owner of the property after the damage was done and “that by assignment, he became possessed of all rights and causes of action which the original owners possessed.” Bender, 2 So.2d at 299 (emphasis added).

645 So.2d at 496.

The appellate court continued:

The Assignment of Mortgage is, as it states, an assignment of all of the RTC’s rights and interests in the mortgage and related collateral. The Assignment of Mortgage makes no mention of, or attempt to, assign to Lennar any cause of action held by the RTC. In order for Lennar to pursue an action based on a cause of action held by the RTC Lennar must allege a valid assignment of that cause of action from the RTC. Lennar has failed to allege, and the exhibits attached to the amended complaint do not demonstrate, that the assignment from the RTC, gave Lennar any right to prosecute any cause of action previously held by the RTC. Since Lennar did not, and cannot, allege a valid assignment the amended complaint fails to allege a cause of action upon which relief may be granted.

Id.

Ginsberg, insofar as its assignment language is concerned, is inapplicable to the present case. In holding that a subsequent owner of real property cannot sue for damage to the property predating his or her ownership in the absence of an assignment of the cause of action from the grantor, Ginsberg is distinguishable. The former wife in this case was a co-owner of the Chase Road house at the time the cause of action accrued and thus had an ownership interest in the cause of action without the need for an assignment by some previous owner. Depending on the language of the MSA, the former husband could'have been an indispensable party to the litigation but a formal assignment of the cause of action to the former wife was unnecessary. See Smith v. Spitale, 675 So.2d 207 (Fla. 2d DCA 1996) (in lawsuit for construction defects in home bought by married couple who later divorced, former wife’s transfer of her interest in the home did not necessitate need for assignment of cause of action from her to the former husband; former husband was continuous owner of the property and was a real party in interest).

The essential inquiry revolves around the language of the MSA. The MSA does not expressly refer to the claim so the ■former husband argues that its allocation is governed by the language in paragraph 6 that “all other ... marital properties and assets that are owned either jointly or individually by the” parties which were not specifically reserved to the former wife belong to the former husband. The trial court disagreed, ruling that the former husband’s transfer to the former wife of all his “right, title or interest” included whatever right he may have had in the “chose in action” related to the house. The court’s legal analysis is sound.

Settlement agreements are interpreted in accordance with laws governing contracts. Johnson v. Johnson, 848 So.2d 1272 (Fla. 2d DCA 2003). A court must construe a contract in a manner that accords with reason and probability and avoid an absurd construction. Kipp v. Kipp, 844 So.2d 691 (Fla. 4th DCA 2003). Terms are to be construed to promote a reasonable, practical and sensible interpretation consistent with the intent of the parties. United States Fire Ins. Co. v. Pruess, 394 So.2d 468 (Fla. 4th DCA 1981).

Pursuant to the MSA, the former husband did not merely transfer title to the Chase Road house to the former wife — he transferred all of his “right, title or interest that he has or may have” in the house to the former wife. The broad language encompassed not merely legal title but any “interest” the former husband may have had in the house. The construction defects which formed the basis for the Capri/Prieto claim existed at the time the MSA was executed. The claim arose directly out of (mis) construction of the Chase Road house and the measure of damages recoverable on such claim was the amount necessary to cure the construction deficiencies. See Michael David Ivey, Inc. v. Salazar, 903 So.2d 329 (Fla. 5th DCA 2005) (where performance of a construction contract is defective, measure of damages is reasonable cost of making the performed work conform to the contract). The claim directly and necessarily related to the Chase Road house and amounted to an “interest” in said house which was transferred to the former wife by the terms of the MSA. The trial court correctly entered judgment on the pleadings in favor of the former wife on the basis that the language of the MSA allocated the Capri/Prieto cause of action to her.

This conclusion disposes of the former husband’s claim that at the very least, he was entitled to a one-half interest in the cause of action. This contention, raised below not in the complaint but in a footnote to the former husband’s motion for summary judgment, presupposes that the MSA did not distribute the chose in action. None of the cases referenced by the former husband for the proposition that joint owners of real property are entitled to share in an award of damages for injury to the land occurring during such joint ownership involve consideration of the effect of a marital settlement agreement. The MSA here distributed the chose in action to one party or the other and unfortunately for the former husband, such distribution was made to the former wife.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

      . See e.g., Florida Citrus Nursery, Inc. v. Dep’t of Agriculture & Consumer Affairs, 570 So.2d 1355 (Fla. 2d DCA 1990); Canney v. City of St. Petersburg, 466 So.2d 1193 (Fla. 2d DCA 1985).


author: THOMPSON, J.

text:
    VOLUSIA COUNTY SCHOOL BOARD, Appellant, v. VOLUSIA HOMES BUILDERS ASSOCIATION, INC., Appellee.
    No. 5D05-3535.
    District Court of Appeal of Florida, Fifth District.
    Nov. 17, 2006.
    Rehearing Denied Jan. 25, 2007.

      Stephen H. Grimes and Lawrence N. Curtin, of Holland & Knight LLP, Tallahassee, and F.A. Ford, Jr. of Landis, Graham, French, P.A., Deland, for Appellant.
    C. Allen Watts, of Cobb & Cole, P.A., Deland, for Appellee.
   THOMPSON, J.

The Volusia County School Board (“School Board”) appeals an Administrative Law Judge’s (“ALJ”) ruling that the School Board’s recommendation to the Vo-lusia County Council (“County Council”) to increase the school impact fee constituted either the enactment of a rule or the amendment of a pre-existing rule. The County Council adopted the recommendation and increased the impact fee to $5284. The Volusia Home Builders Association, Inc. (“VHBA”) filed a petition for determination of unadopted and invalid rule, which asserted that the School Board’s recommendation constituted either the enactment of a rule or the amendment of a preexisting rule. After hearing, the ALJ agreed with the VHBA. The School Board argues the recommendation was neither a rule nor rule amendment, and that the VHBA lacked standing to challenge the recommendation. We agree and reverse.

FACTS

In 1993, the School Board adopted Policy 612. Section 1 provided:

The purpose and intent of this rule is to determine and declare the policies of the Volusia County School Board for the financing, construction and utilization of educational facilities. These policies, as adopted, reviewed and from time to time revised, contain the certifications of the Board contemplated in Ordinance 92-9 of the Volusia County Council imposing a countywide school impact fee.

Policy 612 specified how the cost information required by Volusia County Ordinance 92-9 would be determined and reported; it also provided for the automatic calculation and update of impact fees every other year.

In 1997, the County Council enacted Ordinance 97-7, which imposed a new impact fee. Ordinance 97-7 repealed the provisions of Ordinance 92-9 that had been codified as sections 70-151 to 70-169. The new ordinance, codified as sections 70-170 to 70-184, established a method of calculating the impact fee based upon a May 1997 impact fee report. Section 70-175 specified the impact fee’s initial amount and provided for annual adjustments based on inflation in school construction costs. These adjustments were subsequently made without School Board action.

Unlike Ordinance 92-9, Ordinance 97-7 did not require the School Board to certify information to the County Council to compute the impact fee. Section 70-184 provided that the impact fee should be reviewed by the County Council at least once every five years, at which time the Council should consider the comments and recommendations of the School Board, the East Coast Building Industry Association, Inc. or its successor, and other interested persons. The ordinance provided that the School Board or County Council’s failure to initiate timely review would not affect the ordinance’s validity.

In 2004, the School Board engaged Tin-dale-Oliver & Associates, Inc. (“Tindale-Oliver”) to review the Volusia County impact fee. Tindale-Oliver prepared a school impact fee update and presented two options for the proposed impact fee. Tindale-Oliver recommended the first option, which provided impact fees that varied depending on the proposed dwelling unit. The other option, which the Superintendent favored, specified a single proposed impact fee. In a 26 January 2005 meeting, the School Board voted to recommend that the County Council choose the second option.

On 24 February 2005, the County Council considered at public hearing the proposed change and recommendation from the School Board. The minutes reflected that the fee and proposed amendment were consistent with the comprehensive plan, that the staff recommended approval, and that the School Board was comfortable with the proposed changes. The minutes also showed that two studies had been conducted. The VHBA had objected to the first study, which was the School Board’s previous, in-house study that proposed an impact fee of approximately $3165. The Tindale-Oliver study used more recent data that resulted in a higher proposed impact fee of $5284. The VHBA had not conducted an independent study. Tindale-Oliver engineer Bob Wallace delivered a presentation on the impact fee study and its methodology. The Superintendent and another School Board representative requested that the council adopt the impact fee.

The VHBA argued' against adopting the fee. Notably, it argued at hearing that “[t]he action which Council is being asked to take is an ordinance of Volusia County and not a rule or policy of the School District. If this is challenged, Volusia County would be the defendant and would have to refund the money if there’s a decision to do that.” It did not challenge Tindale-Oliver’s expertise and assumed that most of the underlying data was valid. The VHBA said it would not challenge a $3000 impact fee.

The minutes reflect statements from twelve individuals, most supporting and some opposing the $5284 impact fee. Council Member Long inquired further about impact fee discussions between VHBA and the School Board. ’ Council Members Alexander and Hayman argued for a lower fee of $3000 or $3100. Council Member Lewis expressed disappointment that the VHBA did not procure a professional study though the issue had been discussed since August 2004. County Chair Bruno noted the council asked everyone to do a study in November 2004, and he supported, the $5284.

Council Member Alexander moved to amend the proposal to provide a lower impact fee of $3100 and to send the School Board and VHBA to mediation, but the Council rejected the motion, five to two. Council Member Persis moved to adopt the proposed ordinance, and the motion passed six to one. The County Council then enacted Ordinance 2005-01, amending Chapter 70 of Article V of the Code of Ordinances, which imposed an increased impact fee in the amount recommended by the School Board. This ordinance returned to the indexing mechanism of Ordinance 92-9 by requiring the School Board to provide biannually the cost information necessary to automatically update impact fees. -

VHBA petitioned for determination of unadopted and invalid rule in April 2005. It alleged that the School Board’s recommendation constituted an unpromulgated rule. The School Board claimed the action was not a rule, but conceded that, if it was, then the action was not .adopted by proper rulemaking procedure. VHBA argued that, because only the School Board can establish levels of service, the County Council: 1) was required to accept the proposed impact fee; 2) accepted the update “as gospel”; and 3) incorporated the update into the 2005-01 ordinance.

A School Board attorney testified that the study’s purpose was to provide a recommendation to the County Council. He read from section 70-184, as it existed before the 2005 revision, which provided that the County Council would review the impact fee in light of comments and recommendations from the School Board, the East Coast Building Industry Association, and other interested persons. Under the ordinance as it existed in January 2005, all the School Board could do was present the recommendation to the County Council. The County Council was not required to adopt the impact fee recommended by the approved study.

In the ALJ’s findings of fact, it determined that VHBA members were substantially affected by the School Board’s action because of the costs and effects of increased impact fees. The findings discussed extensively provisions of Ordinance 2005-01, adopted in February 2005. Because the School Board accepted the Tindale-Oliver update’s option of a flat impact fee, rather than the consultant’s recommended alternative, the School Board’s recommendation was “an' action tantamount to increasing the impact fee to an amount in conflict with the preferred choice of the consultant.” The ALJ emphasized that this recommendation, “rather than the Tindale-Oliver recommendation, was ultimately incorporated into Ordinance 2005-01.... ”

The ALJ’s conclusions of law, following its general discussion of Policy 612, suggest that the ALJ believed that Ordinance 2005-01 was in effect when the School Board made its January 2005 recommendation:

87. Notably, a rule is an agency statement of general applicability that implements, interprets, or prescribes law or policy. The preparation or modification of agency budgets is not rulemaking.... Consequently, Article VIII(C) of Policy 612, or an equivalent under the Tindale-Oliver “Update” approved by the Respondent, is considered a required rule in the presence of the Volusia County Council’s ordinance essentially specifying that the County impact fee determination shall be determined in accordance with the amount or methodology certified to the County by Respondent.
38. Petitioner [sic] has not presented any general or special law applicable to the facts ... which would not require complete obedience by the Volusia County Council with its own, ordinance. ... [B]y virtue of the County’s incorporation of Respondent’s level-of-service policy into the County’s Comprehensive Plan and Ordinance 2005-01, Respondent has the power to determine, and from time to time revise, the impact of its level-of-service policies upon builders of new dwellings.
39. The power of Respondent to establish and revise the level of service for school facilities ... is recognized by the Comprehensive Plan and by Chapter 70, Article V of the Code of Ordinances of Volusia County.... [I]t is unnecessary and inappropriate in this forum to consider whether the county government ... could refuse to adopt the level of service ... established by Respondent’s policies.
40. In approval of the Tindale-Oliver Update ..., and the choice of an option not recommended by Tindale-Oliver, ... Respondent necessarily amended Policy 612.

(Emphasis added.)

ANALYSIS

Under section 120.62(l)(b)7, Florida Statutes (2004), the School Board is an agency subject to the Administrative Procedure Act. The School Board denies that its recommendation constituted a rule, but concedes that, if it does, it was not adopted in compliance with section 120.54’s rulemaking procedures. We review for competent, substantial evidence factual findings made by an administrative law judge in a rule challenge under section 120.56, Florida Statutes (2004). Dep’t of Health v. Merritt, 919 So.2d 561, 562 (Fla. 1st DCA 2006). We review de novo the judge’s conclusions of law. Parlato v. Secret Oaks Owners Ass’n, 793 So.2d 1158, 1162 (Fla. 1st DCA 2001).

Section 120.52(15), Florida Statutes (2004), defined a rule as an

agency statement of general applicability that implements, interprets, or prescribes law or policy or describes the procedure or practice requirements of an agency and includes any form which imposes any requirement or solicits any information not specifically required by statute or by an existing rule. The term also includes the amendment or repeal of a rule.

“[A]n agency statement that ... requires compliance, creates certain rights while adversely affecting others, or otherwise has the direct and consistent effect of law is a rule.” Kerper v. Dep’t of Envtl. Prot., 894 So.2d 1006, 1009 (Fla. 5th DCA 2005) (quoting Dep’t of Rev. v. Vanjaria Enters., Inc., 675 So.2d 252, 255 (Fla. 5th DCA 1996)); Dep’t of Transp. v. Blackhawk Quarry Co. of Fla., Inc., 528 So.2d 447, 449 (Fla. 5th DCA 1988). “Not every activity of an administrative agency is controlled by the [Florida Administrative Procedure] Act.” Blackhawk Quarry, 528 So.2d at 449 n. 1 (citation omitted).

A court deciding whether a challenged action constitutes a rule analyzes the action’s general applicability, requirement of compliance, or direct and consistent effect of law. We consider three of our previous decisions to be informative. The challenged action in Kerper, the Department of Environmental Protection’s document entitled “Corrective Actions for Contaminated Site Cases,” was generally applicable and established procedures requiring violators’ compliance by using mandatory terms such as “shall.” Kerper, 894 So.2d at 1009. Likewise, the Department of Revenue’s tax assessment procedure in Vanjaria Enterprises created the department’s entitlement to taxes while adversely affecting property owners. Vanjaria Enters., 675 So.2d at 255. The auditors were constrained by the auditing procedure and were afforded no discretion to act outside the scope of the Training Manual containing the procedure. Id. Similarly, in Blackhawk Quarry, the criteria for agency approval of sources of cemented coquina shell determined entitlement to participation in state projects and created certain rights while addressing others. Blackhawk Quarry, 528 So.2d at 450.

’ The common element in Kerper, Vanja-ria Enterprises, and Blackhawk Quarry, which is absent here, is the agency statement’s direct effect. Here, the recommendation: (1) did not purport to adversely affect any substantive rights of the VHBA or its members; (2) did not constitute a denial or withdrawal of a right of the VHBA; (3) did not impose any new or additional requirements on the VHBA; and (4) did not have the direct and consistent effect of law. See, e.g., State, Bd. of Trs. v. Lost Tree Vill. Corp., 600 So.2d 1240, 1246 (Fla. 1st DCA 1992). The recommendation had, at most, an indirect effect on VHBA. See Blackhawk Quarry, 528 So.2d at 450.

The VHBA offers little discussion of how the recommendation constituted a rule as defined by statutory and case law; rather, it discusses generally the School Board’s responsibility to operate schools and the county’s authority to impose impact fees. It argues that Policy 612 must be amended because the 2005 ordinance reintroduced the automatic indexing feature that had been removed by the ordinance in effect when the School Board had made its recommendation. Furthermore, it claims the recommendation had an external ■ effect that rendered it a rule because it was adopted by the 2005 ordinance.

But the recommendation, standing alone, did not require compliance, create certain rights while adversely affecting others, or otherwise have the direct and consistent effect of law. The record shows it had no immediate or binding effect on either the County Council or the VHBA. Rather, the recommendation was considered by the County Council. There, the minutes reflect that the study’s merits and proposed impact fee were discussed extensively. A dozen parties, including the VHBA, commented on the proposed impact fee increase. A motion to reduce the proposed impact fee was considered and rejected. Ultimately, the County Council elected to increase the impact fee to the amount requested by the School Board, but the February hearing and subsequent ALJ hearing show that the County Council was free to modify or reject the proposed impact fee.

The County Council’s February 2005 decision to impose the increased impact fees — which, in contrast to the recommendation, did affect the VHBA’s rights — did not retroactively render the January 2005 recommendation into a rule with the direct and consistent force of law. Nor will we consider the School Board’s recommendation and approval a rule, despite the VHBA’s implication that the recommendation substantially affected its interests because Volusia County, though not legally required to do so, did in fact rely on the recommendation. Cf. Friends of the Everglades, Inc. v. Dep’t of Cmty. Affairs, 495 So.2d 1193, 1194-95 (Fla. 3d DCA 1986) (affirming denial of plaintiffs’ petition to be heard on an agency’s memorandum to county that contained comments, suggestions, and recommendations concerning a proposed local comprehensive plan).

. As the School Board notes, portions of the final order suggest that the ALJ believed that Ordinance 2005-01 was in effect when the School Board made its January 2005 recommendation. The ALJ discussed “ordinance essentially specifying that the County impact fee determination shall be determined in accordance with the amount or methodology certified to the County by Respondent.” Similarly, paragraph 38 suggests that Volusia County’s ordinance requires complete obedience to the School Board’s determination of the impact of its level of service policies. The County Council’s adherence to the School Board’s certifications was a feature of the 1992 and 2005 ordinances, but not the 1997 ordinance in place when the School Board approved the Tindale-Oliver update.

Assuming, alternatively, that the recommendation should be considered an implicit repeal of Policy 612, which contained a certification requirement in accordance with Ordinance 92-9, the VHBA’s argument is unavailing. “To constitute ‘rulemaking’ a rule repeal is required to satisfy independently the remainder of the definition of a ‘rule’ ” in section 120.52(15). Fed’n of Mobile Home Owners of Fla., Inc. v. Fla. Manufactured Housing Ass’n, Inc. (Mobile Home), 683 So.2d 586, 590 (Fla. 1st DCA 1996), quoted in Osterback v. Agwunobi, 873 So.2d 437, 440 (Fla. 1st DCA 2004). “A repeal that does not have the effect of creating or implementing a new rule or policy is not a ‘rule’ subject to challenge.” Mobile Home, 683 So.2d at 591; accord Osterback, 873 So.2d at 439. We conclude the School Board’s January 2005 action was not a rule because it did not adversely affect any of the VHBA’s substantive rights, did not require compliance on the part of the County Council or the VHBA, and did not have the direct and consistent effect of law.

We also conclude that the VHBA lacked standing to challenge the School Board’s action. Both parties acknowledge that the question of standing is answered by our conclusion the recommendation was not a rule. Nevertheless, we note that the recommendation was too remote and lacked the direct impact necessary to show that the VHBA was “substantially affected” by the recommendation, as opposed to the County Council’s imposition of the increased impact fees requested. Lanoue v. Fla. Dep’t of Law Enforcement, 751 So.2d 94, 99-100 (Fla. 1st DCA 1999). Notably, the VHBA’s testimony regarding the substantial affect of the School Board’s action focused entirely on the costs of impact fees. As the VHBA’s expert stated, impact fees, not studies, affected the builders. The recommendation’s impact remained speculative until the County Council adopted the ordinance that increased the fees; the record shows this result was not a foregone conclusion.

Because the thrust of the VHBA’s argument is that the impact fees were improper, the School Board correctly noted that, if the VHBA wished to challenge the increased impact fees, it should have sued Volusia County. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 128 (Fla.2000); St. Johns County v. Ne. Fla. Builders Ass’n, Inc., 583 So.2d 635, 637 (Fla.1991); see also Home Builders & Contractors Ass’n of Palm Beach County, Inc. v. Bd. of County Comm’rs, 446 So.2d 140, 141 (Fla. 4th DCA 1983); Fla. Home Builders Ass’n, Inc. v. County of Volusia, slip op., No. 93-10992-CIDL, Div. 01 (Fla. 7th Cir. Nov. 21, 1996) (cited in Aberdeen at Ormond Beach, 760 So.2d at 129-31, as a case in which the plaintiffs challenged the methodology used in determining the impact fee).

Accordingly, we REVERSE.

MONACO and EVANDER, JJ., concur.

      . Formerly numbered 609.


text:
    William Russell HILL, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-1361.
    District Court of Appeal of Florida, First District.
    Dec. 1, 2006.
    William Russell Hill, pro se, Appellant.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant prisoner challenges both an order by which his petition for writ of mandamus was denied based upon the trial court’s determination that the petition was untimely and an order by which a section 57.085 lien was placed on his inmate account in connection with the mandamus proceeding. We reverse the first order because, as the appellee concedes, the mandamus proceeding was commenced within the time prescribed by section 95.11(8), Florida Statutes. And we reverse the second order because the underlying mandamus proceeding is a “collateral criminal proceeding” in connection with which a section 57.085 lien may not be imposed. See Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d -, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006).

Both orders are accordingly reversed and this case is remanded. On remand, the trial court should direct the reimbursement of any funds withdrawn from the petitioner’s account in satisfaction of the improper lien order.

ALLEN, BENTON, and HAWKES, JJ„ concur.


author: ORFINGER, J.

text:
    Michelle MATTEINI and Russell Matteini, etc., Appellant, v. FLORIDA BIRTH-RELATED NEUROLOGICAL, etc., Appellee.
    No. 5D05-3704.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.

      Elihu H. Berman, Elihu H. Berman, P.A., Clearwater, for Appellant.
    Wilbur E. Brewton and Kelly B. Plante, of Roetzel and Andress, L.P.A., Tallahassee, for Appellee.
   ORFINGER, J.

Michelle and Russell Matteini, on behalf of and as parents and natural guardians of Sierra Matteini, a minor, appeal a final administrative order denying their petition for benefits under the Florida Birth-Related Neurological Injury Compensation Plan (“the Plan”), sections 766.301-.316, Florida Statutes (2006). In a final order, the administrative law judge (“ALJ”) determined that Sierra had not suffered a “birth-related neurological injury,” as the proof failed to “support the conclusion that, more likely than not, Sierra’s neurological impairment was the result of 'a brain or spinal cord injury occurring in the course of labor, delivery or resuscitation in the immediate postdelivery period in the hospital, or that Sierra was permanently and substantially impaired.” On appeal, the Matteinis dispute the ALJ’s findings, contending that they are not supported by competent, substantial evidence. Having carefully reviewed the record, we affirm.

The physician providing obstetrical services at Sierra’s birth was a “participating physicián” in the Plan, as defined by section 776.302(7), Florida Statutes. Believing that Sierra had been injured during delivery, the Matteinis filed a petition with the Division of Administrative Hearings (“DOAH”) for compensation under the Plan, alleging that Sierra had suffered brain damage as the result of a traumatic delivery. The Matteinis requested relief according to the provisions of the Plan as well as reasonable attorney’s fees.

DOAH served Florida Birth-Related Neurological Injury Compensation Association (“NICA”) with a copy of the petition. NICA responded, reporting that it had retained two medical experts to opine whether Sierra’s claim was compensable under the Plan. Based on its experts’ opinions, NICA “determined that the instant claim [was] not compensable as the injury [did] not meet the definition of a ‘birth-related neurological injury’ as defined in Section 766.302(2), Florida Statutes, which specifically requires that the injury render ‘the infant permanently and substantially mentally and physically impaired.’ ’’ A hearing was then held to determine whether the Matteinis’ claim was compensable. The question before the ALJ was whether it was a “birth-related neurological injury,” as defined by the Plan.

The Plan was established by the Legislature to provide no-fault compensation for birth-related neurological injuries to infants. See §§ 766.301-.316, Fla. Stat. (2005); Fla. Birth-Related Neurological Injury Comp. Ass’n v. McKaughan, 668 So.2d 974, 978 (Fla.1996). Under the Plan, a “birth-related neurological injury” is an injury to the brain or spinal cord of an infant caused by oxygen deprivation or mechanical injury during labor or delivery, which renders the infant both “permanently and substantially mentally and physically impaired.” § 766.302(2), Fla. Stat. (2005). If the infant’s injury satisfies this statutory definition, then the infant, qualifies for financial benefits. Id.; see §§ 766.309, 766.31, Fla. Stat. (2005).

As required by the statutory scheme, the ALJ was required to determine whether Sierra’s brain injury was the likely cause of her current impairments and whether Sierra is substantially and permanently physically and mentally impaired. On this issue, NICA argued below and on appeal that Sierra’s impairments were not based on the injury that she sustained at birth, and, regardless of the cause of her impairments, Sierra is not permanently and substantially mentally and physically impaired. The Matteinis take a contrary view, arguing that Sierra’s brain injury caused her current impairments and renders her permanently and substantially mentally and physically impaired.

After the hearing, the ALJ issued a detailed final order, explaining his evaluation of the evidence and denying the Mat-teinis’ claim for compensation under the Plan. The ALJ concluded that the Mat-teinis’ claim was not compensable because Sierra had not suffered a “birth-related neurological injury.” In rendering this finding, the ALJ resolved the conflicting evidence against the Matteinis.

This Court’s review of the ALJ’s final order is governed by section 120.68, Florida Statutes (2005). See Legal Envtl. Assistance Found., Inc. v. Clark, 668 So.2d 982, 986 (Fla.1996). . “A determination of the administrative law judge as to the qu$lification of the claim for purposes of compensability under s. 766.309 ... shall be conclusive and binding as to all questions of fact.” § 766.311(1), Fla. Stat. (2005). An ALJ’s findings of fact are reversible on appeal when they are not supported by competent, substantial evidence in the record or where the agency’s interpretation of the law is clearly erroneous. See § 120.68(7) & (10), Fla. Stat. (2005); Carreras v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 665 So.2d 1082, 1084 (Fla. 3d DCA 1995). Conversely, an ALJ’s interpretation of the law is reviewed de novo. See Schur v. Fla. Birth-Related Neurological, 832 So.2d 188, 191 (Fla. 1st DCA 2002); Nagy v. Fla. Birthr-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002); Fluet v. Fla. Birthr-Related Neurological Injury Comp. Ass’n, 788 So.2d 1010 (Fla. 2d DCA 2001).

To grant the Matteinis relief, we would be required to reweigh the evidence considered by the ALJ, who determined that Sierra did not suffer a “birth-related neurological injury.” Although the Matteinis’ expert, Dr. Trumble, testified that the contusion to Sierra’s left temporal lobe of her brain was the cause of her speech delay, and that it was permanent, he was unable to opine whether this injury was “substantial,” stating that “‘substantial’ gets into the subjective realm that I would defer to ... I guess you’d would make that decision, Judge. I don’t know who makes that decision. But I would defer to somebody else. If this were my child and she was having speech issues, it would be substantial to me.”

With respect to the specific issue of whether Sierra’s speech delay was a physical impairment, Dr. Trumble opined that Sierra “has a one centimeter left mid-temporal area of encephalomalacia ... [and that] specific anomaly within the brain ... would be ... most likely Sierra’s speech delay was related to her speech impairment.” However, he admitted that he did not “see any motor abnormalities, if that is what [is meant] by a physical impairment.” Under the Plan, a “physical impairment” relates to the infant’s impairment of his “motor abnormalities” or “physical functions,” which along with the brain injury, significantly affects the infant’s mental capabilities so that the infant will not be able to translate his cognitive capabilities into adequate learning or social development in a normal manner. See Fla. Birth-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1356 (Fla.1997) (explaining that infant was permanently and “substantially mentally and physically impaired” as result of “birth-related neurological injury,” thus, entitling him to compensation under the Plan, even though he was average or even above average in his cognitive skills and preacademic skills; as result of birth-related events causing oxygen deprivation, infant suffered focal injury to basal ganglia, which aids body in performing its “physical functions,” and as a direct result of his injury, he would not be able to communicate, attend school or otherwise learn and develop intellectually without substantial accommodation); see also Adventist Health Sys./Sunbelt, Inc. v. Fla. Birth-Related Neurological Injury, 865 So.2d 561 (Fla. 5th DCA 2004) (explaining that under the Plan, the identification of a “substantial mental impairment” may include not only significant cognitive deficiencies but can include, in a proper case, additional circumstances such as significant barriers to learning and social development).

The existence of permanent brain injury or damage alone, without demonstrating both permanent and substantial mental and physical impairment, is not sufficient to demonstrate that the infant suffers a “birth-related neurological injury,” as defined in section 766.302(2). See Fla. Birth-Related Neurological Injury Comp. Ass’n, 686 So.2d at 1354 (holding that the term “and,” as used in the Plan, cannot be replaced with word “or” and read in disjunctive; thus, in order to obtain coverage, infant must suffer both substantial mental and substantial physical impairments, and it is insufficient that infant suffer only substantial impairment, mental or physical); Adventist Health Sys./Sunbelt, Inc. (holding that evidence supported ALJ’s finding that child had not suffered a “substantial mental impairment” in addition to her cerebral palsy, for purposes of the Plan; despite child’s physical impairments and damage shown on brain scans, child was of normal or above-average intelligence). Here, Dr. Trumble testified that Sierra had a physical brain injury, which could be readily seen on her brain scans. However, he agreed that Sierra did not suffer from any physical motor abnormalities, which was echoed by Sierra’s pediatrician. Thus, it would appear that the ALJ’s finding that “Dr. Trumble agrees that no physical impairment ensued” was supported by competent, substantial evidence.

The Matteinis also contend that the ALJ’s interpretation of the law is clearly erroneous. They claim that the substantial competent evidence in this case supports only the conclusion that Sierra’s neurological impairment was the result of mechanical injury incurred in the course of delivery, and that she was permanently and substantially mentally and physically impaired. The Matteinis maintain that NICA’s expert witness, Dr. Duchowny, did not dispute that Sierra had a speech delay; however, he attributed her speech delay, not to the injury to her brain, but rather, called it “developmental,” suggesting that it was but one of several developmental weaknesses. The Matteinis maintain that Dr. Duchowny’s conclusion was unreasonable, in light of the testimony of Sierra’s pediatrician, who had observed her closely over a period of years, and who had reported that she was normal in every respect except for her speech delay.

Again, it appears that the Matteinis are asking this Court to reweigh the evidence considered by the ALJ. It is clear that NICA’s expert testified that based on his neurological evaluation of Sierra, and a review of her medical records, Sierra did exhibit a speech delay; however, her speech delay was developmental in nature, ie., based upon brain maturation, and, therefore, unrelated to her brain injury, and was not a permanent or substantial mental impairment. While the Matteinis offered countervailing testimony from various experts and lay witnesses, the ALJ credited NICA’s witnesses more heavily. The ALJ’s factual finding that Sierra did not suffer a substantial and material physical and mental impairment is supported by substantial competent evidence and is conclusive and binding on this Court.

AFFIRMED.

GRIFFIN and PALMER, JJ., concur.


author: LAWSON, J. THOMPSON, J.,

text:
    Asif MIRZA, M.D., Petitioner, v. Frank TROMBLEY and Tammy Tillman, etc., et al, Respondents.
    No. 5D05-4185.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Rehearing Denied Jan. 29, 2007.

      Craig S. Foels and Robin D. Black of Hannah, Estes <& Ingram, P.A., Orlando, for Petitioner.
    Alan J. Landerman of,The Nation Law Firm, Longwood, for Respondents Frank Trombley and Tammy Tillman.
   LAWSON, J.

Dr. Asif Mirza seeks a writ of certiorari quashing the trial court’s order in a medical malpractice action. The order denied Dr. Mirza’s motion for dismissal or summary judgment. Dr. Mirza argues that his motion should have been granted because respondents did not individually serve him with a notice of intent pursuant to section 766.106(2), Florida Statutes (2004), and did not individually name him in their corroborating expert affidavit, filed pursuant to section 766.203(2), Florida Statutes (2004). We find that the trial court properly denied Dr. Mirza’s motion and deny certiorari.

On February 3, 2005, respondents sued Dr. Mirza, Dr. Faisal Ahmad, East Coast Hospital Inpatient Specialists, P.L.C. (“ECHIS”), and six other healthcare providers, alleging medical negligence in Patricia Trombley’s treatment, which ultimately led to her death. More precisely, respondents claimed that the defendants’ actions “fell below the appropriate standard of care” by inappropriately “ordering and administering heparin therapy ... which caused an intracranial bleed, resulting in the death of Patricia Trombley.” The alleged negligence occurred in the period between Trombley’s admission into Central Florida Regional Hospital on February 6, 2003, and her death on February 9, 2003. Drs. Mirza and Ahmad practiced medicine together at ECHIS and were co-owners of the practice.

Chapter 766 articulates “a complex investigation procedure that both the claimant and defendant must follow before a medical negligence claim may be brought in court.” Kukral v. Meleras, 679 So.2d 278, 280 (Fla.1996). These requirements are “designed to facilitate the amicable resolution of medical malpractice claims,” Patry v. Capps, 633 So.2d 9, 11 (Fla.1994) (quoting Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991)), and include both a notice requirement and a requirement that the potential plaintiffs attorney conduct a reasonable investigation to determine whether a good faith basis exists to claim medical negligence. Kukral, 679 So.2d at 280. As part of the investigation requirement, the attorney must obtain a “verified written medical expert opinion from a medical expert” that “corroborate^ reasonable grounds to support the claim of medical negligence.” § 766.203(2), Fla. Stat. (2004).

In this case, respondents’ counsel was obviously not initially aware of Dr. Mirza’s involvement in Trombley’s care. In fact, counsel’s initial request for informal discovery asked ECHIS to list all employees of the practice who treated Trombley. In response, ECHIS simply stated that Dr. Ahmad’s involvement was limited, in that “another doctor took over as the attending physician a few hours” after Dr. Ahmad had arranged for her admission by telephone. However, ECHIS did not disclose that it was Dr. Mirza who took over as the attending physician and simply told counsel to “refer to the Medical Records.”

Not surprisingly, therefore, Dr. Mirza was not individually named in plaintiffs’ presuit notice or in the presuit investigatory affidavit. Instead, plaintiffs sent notices to Dr. Ahmad and to ECHIS. The notice of intent to initiate litigation against ECHIS was addressed to “you, as well as all other prospective defendants who bear a legal relationship to you....” Additionally, the physician who reviewed the case for plaintiffs’ counsel corroborated in an affidavit served on ECHIS that reasonable grounds existed to support the claim of medical negligence. In the affidavit, plaintiffs’ expert actually describes the care and treatment provided by Dr. Mirza, concluding that his actions fell below the appropriate standard of care. However, because Dr. Mirza had not yet been identified as the other. ECHIS “doctor who took over as the attending physician,” Dr. Mirza was not individually named in the affidavit. Instead, the affidavit — consistent with the notice — outlined the manner in which the reviewing physician found ECHIS’ actions to have fallen below the appropriate standard of care.

Contrary to Dr. Mirza’s arguments, we find that the trial court correctly concluded that plaintiffs’ presuit notice and investigatory affidavit were sufficient. As for the notice, the law is clear that because Dr. Mirza was a partner and owner of ECHIS, notice to ECHIS also constituted notice to Dr. Mirza. E.g., Moss v. Stadlan, 789 So.2d 1069 (Fla. 4th DCA 2001); see also Fla. R. Civ. P. 1.650 (“Notice of intent to initiate litigation sent by certified mail to and received by any prospective defendant shall operate as notice to the person and any other prospective defendant who bears a legal relationship to the prospective defendant receiving the notice.”). Therefore, by noticing ECHIS, plaintiffs met the presuit notice requirement of section 766.106(2), Florida Statutes, as to Dr. Mirza.

With respect to the investigatory affidavit requirement, Dr. Mirza argues that Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005), and Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005), require dismissal of a medical malpractice suit against any defendant not individually named in the investigatory affidavit. We believe this to be a misreading of both cases.

In Largie, the plaintiff had properly noticed . Jessica Wang, a registered nurse practitioner. However, plaintiff had not conducted any presuit investigation of nurse Wang’s actions. Accordingly, as explained in the Largie opinion, the investigatory affidavit made “no mention of Nurse Wang whatsoever, either by name or job description.” Largie, 913 So.2d at 639. Additionally, the affidavit made “no reference to the standard of care applicable to a certified registered nurse .practitioner or to any deviation from that standard of care.” Id. In short, the affidavit did “not suggest, much less corroborate, that any investigation took place with regard to Nurse'Wang or that any reasonable grounds exist to support the Largies’ claim against her as expressly, mandated by Chapter 766.” Id. As a result, the Third District Court held in Largie that the complaint against Nurse Wang should be dismissed.

Similarly, in Bonati, the Second District Court followed Largie and required dismissal of a complaint against a physician whose conduct was not reviewed as part of the presuit investigation. Robin Allen had consulted Dr. Bonati regarding neck and arm pain that she had been experiencing for five years. Dr. Bonati diagnosed Allen as having a “cervical nerve decompression” and referred her to an orthopedic surgeon, Dr. Mork. Dr. Mork performed spinal surgery on Allen and referred her to two other doctors for post-operative pain management arid care.

In the investigative affidavit, the reviewing doctor (an orthopedic surgeon) found that Dr. Mork had negligently performed the surgery on Allen. He also found that the procedure Dr. Mork performed was inappropriate for Allen. The reviewing physician further found deviations from the acceptable standards of medical care by the two doctors who provided postoperative care. With respect to Dr. Bona-ti, however, the court concluded that because the presuit investigatory affidavit did “not serve its purpose of corroborating that Dr. Bonati acted negligently toward Allen,” the presuit investigation requirement had not been satisfied. '

In this case, of course, the affidavit does clearly corroborate that Dr. Mirza acted negligently toward Patricia Trombley. As we read Largie and Bonati the fact that the affidavit failed to specifically name the prospective defendant later dismissed was simply one fact demonstrating that no reasonable investigation had been conducted with respect to those medical providers. Because the affidavit in the instant case clearly shows that a reasonable investigation has been conducted with respect to Dr. Mirza’s actions, dismissal of this case is unwarranted. We therefore reject Dr. Mirza’s argument that the affidavit must name each prospective defendant. Instead, we hold that failure to individually name a particular defendant is not fatally defective, so long as the affidavit otherwise makes it clear that the defendant’s actions were properly reviewed and determined to be negligent prior to filing suit.

We find further support for our holding based upon our review of the plain language of the statute, by considering the purpose of the statutory requirement, and by application of the rule requiring that the malpractice presuit requirements be construed in a manner that protects citizens’ constitutionally guaranteed access to the courts.

First, Dr. Mirza’s argument for requiring that each future defendant be individually named in the investigatory affidavit is not compelled or supported by the express language of section 766.203, Florida Statutes. The statute simply requires that before serving a notice of intent to initiate medical negligence litigation pursuant to section 766.102, “[Cjorroboration of reasonable grounds to initiate medical negligence litigation .shall be provided by the claimant’s submission of a verified written expert opinion ... which statement shall corroborate reasonable grounds to support the claim of medical negligence.” Nowhere does the statute say that a claimant must individually name each future defendant in the affidavit as a prerequisite to suit.

Second, adding a requirement that each future defendant must be individually named in the investigatory affidavit would seem inconsistent with the recognized purpose underlying the affidavit requirement, which is simply “to corroborate that the claim is legitimate, not to give notice of it.” Kukral v. Mekras, 679 So.2d 278, 282 (Fla.1996) (emphasis added). As further explained in Kukral: “Obviously, the corroborative medical opinion adds nothing to the Plaintiffs’ notice of their claim. It merely assures the Defendants, and the court, that a medical expert has determined that there is justification for the Plaintiffs’ claim, i.e., that it is not a frivolous medical malpractice claim.” Id. at 282 (emphasis in original).

In this case, it is undisputed that plaintiffs conducted the required investigation, resulting in an expert medical opinion that they had a legitimate basis to pursue a malpractice claim based upon the administration of heparin to Patricia Trombley. It is also undisputed that Dr. Mirza was the ECHIS physician primarily responsible for overseeing Trombley’s heparin therapy. Therefore, the sole statutory purpose behind the affidavit requirement — the elimination of frivolous claims— was fully satisfied in this case.

Finally, Dr. Mirza’s argument is inconsistent with the directive from our supreme court that “the medical malpractice statutory scheme must be interpreted liberally so as to not unduly restrict a Florida citizen’s constitutionally guaranteed access to the courts.... ” Id. at 284. Dr. Mirza argues for a rule that would deny these plaintiffs their constitutionally guaranteed access to courts by restrictively construing the statute as containing a technical requirement that each prospective defendant be individually named in the presuit investigatory affidavit. We reject this narrow construction because it is not supported by the express language of the statute, by the clear purpose of the affidavit requirement, or by case law.

CERTIORARI DENIED.

PLEUS, C.J., concurs.

THOMPSON, J., dissents, with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent. I find Bonati v. Allen, 911 So.2d 285 (Fla. 2d DCA 2005), dispositive. In Bonati, plaintiffs, alleging medical malpractice, sued a doctor and the center where he worked. The plaintiffs Notice of Intent named the doctor as one of the negligent parties, but the corroborating expert affidavit did not mention the doctor by name. The trial court denied the doctor’s motion to dismiss. The Second District granted his motion for certio-rari and held:

[T]he expert affidavit relied on by [Plaintiff] does not mention [the doctor] by name. Because [the] affidavit does not serve its purpose of corroborating that [the doctor] acted negligently toward [Plaintiff], the presuit investigation requirement has not been satisfied. Accordingly, the trial court departed from the essential requirements of law in denying [the doctor’s] motion to dismiss.

Bonati, 911 So.2d at 288 (emphasis added); see also Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005) (affirming summary judgment for nurse who was not mentioned by name or job description in the corroborating affidavit because the affidavit did “not suggest, much less corroborate, that any investigation took place with regard to [the nurse] or that any reasonable ground exist[ed] to support [plaintiffs’] claim against her”).

The majority writes that Largie can be distinguished because the corroborating affidavit of the expert, a primary care physician, stated that the physician’s failure to follow up the treatment of a patient with an elevated PSA was negligent and there was no expert corroborating affidavit as to the nurse practitioner’s negligence. Their argument suggests that when the corroborating affidavit is from a physician, then all physicians involved, even though unnamed, are assumed to be negligent. I think this is in derogation of the statute. See § 766.202(5), Fla. Stat. (2004).

The majority posits several reasons for concluding that Trombley complied with the pre-suit investigatory affidavit requirement. , First, I address the statement that section 766.203 does not require the corroborating affidavit to name each individual defendant. Section 766.202(5) defines “investigation” to mean “that an attorney has reviewed the case against each and every potential defendant and has consulted with a medical expert and has obtained a written opinion from said expert” (emphasis added). Furthermore, section 766.203(2) requires the claimant to investigate to determine whether reasonable grounds support the conclusion that “any named defendant in the litigation was negligent in the care or treatment of the claimant.”

The affidavit of Trombley’s expert, Dr. Malkin, outlines the material he reviewed to reach his opinion and the basis of his opinion, i.e., that reasonable grounds existed to support a negligence claim against Dr. Ahmad, ECHIS, Dr. Shanmughan, Florida Neurology, P.A., and Central Florida Regional Hospital. Dr. Malkin does not allege that Dr. Mirza was negligent, and Dr. Mirza’s name does not appear in his affidavit. Though his investigation and affidavit corroborate allegations of negligence against five parties, he never states that Dr. Mirza did something wrong.

The majority argues that it is inconsistent to conclude that the corroborating affidavit was insufficient as to Dr. Mirza even though we found meritless his argument regarding lack of notice. I think the two are distinct issues. Here, the problem was the corroborating affidavit’s failure to show that the pre-suit investigation demonstrated Dr. Mirza was negligent. I conclude that requiring the corroborating affidavit to provide reasonable grounds to support negligence claims against the parties named in the litigation serves the purpose of eliminating frivolous claims and does not deprive Trombley of access to the courts.

Though Dr. Mirza’s admission to his legal relationship with ECHIS suffices for purposes of the Notice of Intent, it does not waive his right to a corroborating medical opinion that demonstrates reasonable grounds exist to initiate medical negligence litigation against him. Because the affidavit here did not serve its purpose of corroborating that Dr. Mirza acted negligently toward Trombley, the presuit investigation requirement has not been satisfied. See Bonati, 911 So.2d at 288. Accordingly, the trial court departed from the essential requirements of law in denying Dr. Mirza’s motion to dismiss. See id.

What is most troubling is the language of the majority that seeks to rewrite section 766.203(2). The majority states:

We therefore reject Dr. Mirza’s argument that the affidavit must name each prospective defendant. Instead, we hold that failure to individually name a particular defendant is not fatally defective, so long as the affidavit otherwise makes it clear that the defendant’s actions were properly reviewed and determined to be negligent prior to filing suit.

This appears to be circular reasoning. In essence, I read this to state that when there is enough evidence to identify the negligence of at least one physician among several treating physicians, that is supported by a corroborating affidavit as to that one physician, every physician with the same specialty as the named physician is presumed negligent. Obviously, the Florida Legislature could rewrite the statute to eliminate the specific notice to the individual defendants or potential defendants. However, they chose to separate the two. I do not think it is the province of this court to rewrite the Florida Statutes.

Therefore, I conclude the lower court departed from the essential requirements of the law, and would grant the petition for writ of certiorari and remand for further proceedings. Combs v. State, 436 So.2d 93, 95-96 (Fla.1983).

      . The statute requires the prospective plaintiff to serve the affidavit with his or her presuit notice. See § 766.203(2), Fla. Stat. (2004).

      . When responding to initial requests for informal discovery pursuant to section 766.106 after the corroborating affidavit was filed, a pertinent part of Dr. Ahmad’s response was, "Dr. Ahmad is unaware of anyone who was responsible, in whole or in part, for the occurrence or any of the complications suffered by Patricia Elaine Trombley at this point in time.” This response was received before the complaint was filed.


author: SAWAYA, J.

text:
    Carlos MOLINA, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2121.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.

      James/ S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SAWAYA, J.

Carlos Molina contends that after he was found incompetent to proceed with his trial, he was subsequently tried and convicted by a jury without a hearing to determine whether his competence had been restored and without a finding by the trial court to that effect. Molina claims that this constitutes fundamental error that requires reversal of his conviction and sentence. We agree.

Molina was arrested and charged with the crime of robbery with a firearm in November 2002. Molina’s mental competence was raised as an issue, and after Judge Anthony Johnson found Molina incompetent to proceed with his trial, Molina was placed in the custody of the Department of Health and Family Services for appropriate treatment. A couple of months later, the Department produced a report that declared Molina to be competent and a malingerer. Molina was ordered to be transported back to the trial court for a competency hearing. Judge Frank Kaney, a successor judge, set the case for trial on April 4, 2005. On that date, a third judge, Judge Jose Rodriguez, proceeded with Molina’s trial. When the issue of Molina’s competence was raised once again, the trial judge, over Molina’s objection, considered two reports made before Molina was found incompetent to proceed and the transcript of a witness who had testified at a prior hearing before Judge Kaney. The trial judge declined to hear testimony from Molina’s witness regarding his competency to proceed. Without specifically finding Molina competent, the trial judge ordered the trial to commence. Molina objected to proceeding without further evaluation of his competence. That objection was overruled.

As the voire dire examination commenced, Molina, seated at the defense table with one half of his head completely shaved, began to hurl verbal vulgarities and obscenities in Spanish at Judge Rodriguez. Logic dictates that when a criminal defendant insults the person charged with control of the keys to the jailhouse doors, a strong possibility exists that the defendant may have serious mental health issues that should be addressed. But rather than proceed with further inquiry into Molina’s competence, the trial judge found Molina in contempt of court and sentenced him to 179 days in jail. The jury was dismissed and the trial was continued to a later date. With Molina either absent from trial or required to attend via closed circuit television from another room in the courthouse, the subsequent trial ended with a verdict of guilty.

Molina claims, and the State agrees, that Molina was never provided a proper hearing to determine his competence and that Molina never agreed that reports would be considered by the trial court to determine his competency. It is not necessary to dwell too much upon the applicable law; the general principles have been firmly established by the courts and many of them have been codified in the rules of criminal procedure. Once found incompetent, a presumption clings to the criminal defendant that the state of incompetence persists until a court, after proper notice and a hearing, finds otherwise. Jackson v. State, 880 So.2d 1241 (Fla. 1st DCA 2004); Sledge v. State, 871 So.2d 1020 (Fla. 5th DCA 2004). The procedure for subsequent hearings to determine whether competency has been restored is found in rule 3.212, Florida Rules of Criminal Procedure, which requires that within thirty days of receipt of a report from the administrator of the facility in which a defendant is being treated stating that the defendant no longer meets the criteria for commitment or has become competent to proceed, see Fla. R.Crim. P. 3.212(c)(5), the court must hold a competency hearing. Fla. R.Crim. P 3.212(c)(6); Jackson; Samson v. State, 853 So.2d 1116, 1117 (Fla. 4th DCA 2003). A proper hearing to determine whether competency has been restored requires “the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence.” Samson, 853 So.2d at 1117; Jackson. It is appropriate for the trial court to consider reports to determine the defendant’s competence, but only if the parties agree. Blow v. State, 902 So.2d 340 (Fla. 5th DCA 2005); Johnson v. State, 855 So.2d 218 (Fla. ,5th DCA 2003). Here, Molina never agreed to have the trial court consider any reports.

Until the presumption of continued incompetence dissipates, the criminal defendant may not be tried for the crimes for which he or she is charged. Violation of this principle constitutes fundamental error. Jackson. Because Molina was never provided a proper competency hearing and an adjudication of competency was never made, the trial court erred in proceeding with Molina’s trial.

Moreover, even if Molina had been properly adjudicated competent to proceed, his prior adjudication of incompetence in conjunction with his bizarre behavior during his first trial and his counsel’s request for a competency evaluation at that time should have given the trial court reasonable grounds to believe that Molina was incompetent, necessitating further inquiry. See Culbreath v. State, 903 So.2d 338 (Fla. 2d DCA 2005); Burns v. State, 884 So.2d 1010 (Fla. 4th DCA 2004); Brockman v. State, 852 So.2d 330 (Fla. 2d DCA 2003); see also Harris v. State, 864 So.2d 1252 (Fla. 5th DCA 2004). A defendant has a due process right to a determination of competency to proceed to trial whenever it appears reasonably necessary. See Carrion v. State, 859 So.2d 563, 565 (Fla. 5th DCA 2003) (“If the trial judge has reasonable grounds to believe that a criminal defendant is not competent to proceed, then the court must conduct a competency hearing.”); see also Drope v. Missouri, 420 U.S. 162, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Pate v. Robinson, 383 U.S. 375, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966); Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Florida Rule of Criminal Procedure 3.210(b) implements this right and places upon the trial court the responsibility to order a competency hearing on its own motion whenever it has reasonable grounds to believe that the defendant is not competent to proceed. See Lane v. State, 388 So.2d 1022, 1025 (Fla.1980). This is a continuing obligation, which may require the trial court to revisit the issue after a defendant has been declared competent to proceed. Nowitzke v. State, 572 So.2d 1346 (Fla.1990); Culbreath. A trial court’s failure to do so constitutes an abuse of discretion. See Burns, 884 So.2d at 1013-14 (citing Robertson v. State, 699 So.2d 1343 (Fla.1997), receded from on other grounds by Delgado v. State, 776 So.2d 233 (Fla.2000); Fowler v. State, 255 So.2d 513 (Fla. 1971)).

We conclude that Molina’s conviction and sentence must be reversed. We remand this case for a new trial contingent upon a determination that Molina is competent to stand trial.

REVERSED and REMANDED.

TORPY and EVANDER, JJ., concur.

      . The order should be in writing. In the event the trial court orally finds the defendant competent to proceed, the appellate court may remand the case for entry of a written nunc pro tunc order. See Bailey v. State, 931 So.2d 224 (Fla. 1st DCA 2006); Boone v. State, 805 So.2d 1040 (Fla. 4th DCA 2002); Corbitt v. State, 744 So.2d 1130 (Fla. 2d DCA 1999).

      . This court in Johnson explained:
      Rules 3.212(c)(6) and (7), Florida Rules of Criminal Procedure, provide that within 30 days of receiving notice that a defendant has regained competence, a court shall hold a hearing to determine if a defendant is competent to proceed. If the court so determines, it must adjudicate the defendant competent to proceed. Here, the record reveals that no such hearing was held, no such adjudication was made, and defendant’s legal status at the time of sentencing was still one of incompetence. While the State asserted Appellant was competent to proceed, the State, in so asserting, appears to have been relying only on DCF's letter and not on any prior adjudication of competency by the court. Without such an adjudication, it was error to proceed to sentencing.
      855 So.2d at 220.


author: GRIFFIN, J.

text:
    Jarvis Ramon HAYNES, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-2741.
    District Court of Appeal of Florida, Fifth District.
    Dec. 8, 2006.
    Rehearing Denied Jan. 30, 2007.

      Terrence E. Kehoe, of Law Offices of Terrence E. Kehoe, Orlando, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

In this appeal, Jarvis Ramon Haynes [“Haynes”] makes three claims of error. He correctly contends that it was error to impose costs on a per-count basis rather than on a per-case basis. The State concedes the error. We strike the costs imposed for counts II and III.

Haynes’s remaining claims of error require us to find the claimed error to b.e fundamental because no objection was raised below. Haynes complains that the trial judge had the jury instructions read by his law clerk (apparently a law student) rather than instructing the jury himself. Nothing appears in the record to indicate the judge was incapable of instructing the jury himself, and this was a clear violation of Florida Rule of Criminal Procedure 3.390(a) and section 918.10, Florida Statutes (2005). Not surprisingly, we have found no other cases in Florida or otherwise where a clerk has been allowed to instruct the jury, and we disapprove this practice. Trial judges in this district will not be fobbing off to a law clerk their important duty to instruct the jury, certainly not without some good reason and prior agreement of the parties. However, we do not see how it can rise to the level of fundamental error in this case.

Finally, Haynes complains of the insertion of the words “or a principal” into the robbery charge, i.e., “Jarvis Haynes or a principal took the electronic equipment....” (Emphasis added). The standard instruction on “Principal” was also given. The only objection raised below was that this instruction varied from the standard instruction, but counsel for Haynes acknowledged:

I can’t argue it is prejudicial because it is the law and I understand it is the law. I understand why Mr. Green is inserting it in there, but for the record, I would object to anything other than the standard language that is in these jury instructions.

We agree that the amendment to the instruction is redundant, but notwithstanding Haynes’s protestations on appeal, in the context of the conduct of the entire trial, did not deprive Haynes of a fair trial or invalidate his conviction.

AFFIRMED; costs imposed in Counts II and III STRICKEN.

PALMER and ORFINGER, JJ., concur.

      . To the contrary, it appears the judge read some of the instructions, but the clerk read the majority.

      . Haynes relies on Concepcion v. State, 857 So.2d 299 (Fla. 5th DCA 2003), but that case involved identifying different defendants on a "trafficking” charge. This case is more like Carpenter v. State, 785 So.2d 1182 (Fla.2001).