text:
    Larry E. MERRITT, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3075.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    James Marion Moorman, Public Defender, and Terrence E. Kehoe, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Deborah Fraim Hogge, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Larry E. Merritt appeals from an order denying his postconviction motion in part and granting it in part, which was entered by Judge Ficarrotta in March 2004. He also appeals the new sentence entered by Judge Ficarrotta as a result of that order. Mr. Merritt’s attorney has filed an Anders brief in this appeal. See Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). We affirm the order resolving the postconviction motion.

While this case was pending on appeal, Mr. Merritt filed a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). That motion claimed that Mr. Merritt should have been resentenced by the same judge who had originally sentenced him in 1996. Judge Ficarrotta granted that motion in October 2005. Thus, the sentence on appeal in this case was vacated. A second new sentence was thereafter imposed — this time by Judge Behnke, the original sentencing judge.

Mr. Merritt filed a separate appeal from the second sentence. That appeal is pending in this court as case number 2D06-1793. That appeal has now been perfected and presents an issue on the merits. Accordingly, our affirmance in this case has no effect on the sentence that is pending on review in case number 2D06-1793. The appeal of that sentence will be resolved in a separate opinion at a later time.

Affirmed.

ALTENBERND, CASANUEVA, and VILLANTI, JJ„ Concur.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Elias KANAAN, M.D., Petitioner, v. Jimmy D. OSBORNE, Respondent.
    No. 2D06-5584.
    District Court of Appeal of Florida, Second District.
    March 28, 2007.

      Ronald J. Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Petitioner.
    David G. Eaton, Tampa, for Respondent.
   WHATLEY, Judge.

Elias Kanaan, M.D., filed this petition for writ of certiorari seeking to quash a circuit court order which compelled him to provide notes that he, claims are exempt from discovery pursuant to section 766.205(4), Florida Statutes (2005). The respondent, Jimmy D. Osborne, correctly concedes that the notes are exempt from discovery pursuant to this court’s holding in Grimshaw v. Schwegel, 572 So.2d 12 (Fla. 2d DCA 1990).

Accordingly, we grant Kanaan’s petition for writ of certiorari, quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

NORTHCUTT and SILBERMAN, JJ., Concur.

      . Section 766.205(4) provides, “No statement, discussion, written document, report, or other work product generated solely by the presuit investigation process is discoverable or admissible in any civil action for any purpose by the opposing party.”


author: PER CURIAM.

text:
    Marvin MORRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2149.
    District Court of Appeal of Florida, Third District.
    Oct. 11, 2006.
    Rehearing and Rehearing En Banc Denied April 5, 2007.
    Marvin Morris, in proper person.
    Charles J. Crist, Jr., Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   PER CURIAM.

This is an appeal from orders entered in postconviction proceedings. We affirm.

Defendant-appellant Marvin Morris filed in the Florida Supreme Court a motion seeking emergency relief, alleging that in Miami-Dade County Circuit Court case numbers 89-31180 and 89-20450 the oral pronouncement was for ten year concurrent sentences, not the aggregate forty years imposed by the written sentencing orders through consecutive sentencing. He alleged that he already had served more than ten years and was entitled to immediate release. The Florida Supreme Court treated the defendant’s motion as a petition for writ of habeas corpus. The supreme court transferred it “to the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Florida, for consideration as a motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a).” After transfer, the trial court denied relief.

The defendant filed a petition for writ of habeas corpus in the Florida Supreme Court. The supreme court entered an order stating, “Appellant has submitted a petition for writ of habeas corpus which this Court has treated as a Notice of Appeal from the Eleventh Judicial Circuit Court, in and for Dade County, Florida. Having determined that the issues involved in this appeal appear to be within the jurisdiction of the Third District Court of Appeal, this case is hereby transferred to that court.” The supreme court’s order was, however, misdirected to the trial court, which opened a new file, Miami-Dade County circuit court case number 05-18972, for this proceeding. The defendant’s previous motion seeking emergency relief was referred to a successor judge, who again denied the motion. The defendant filed a timely notice of appeal. Both orders are now before us in this appeal.

On the merits, we agree with both trial judges in the denial of relief. The sentencing transcript is very clear that the trial court sentenced the defendant to ten years as a habitual offender in Miami-Dade County Circuit Court case number 89-20450, and a consecutive thirty-year sentence as a habitual offender in Miami-Dade County Circuit Court case number 89-31180, with a mandatory minimum sentence of three years.

Affirmed.


text:
    Gregory Lawson VANCE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6087.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2007.
    Rehearing Denied March 22, 2007.
    Gregory Lawson Vance, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Harry P. HURST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6130.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2007.
    Rehearing Denied March 22, 2007.
    Harry P. Hurst, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

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


text:
    Donnie Keith SASSNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-6242.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2007.
    Rehearing Denied March 22, 2007.
    Donnie Keith Sassnett, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    SC.READ, INC. and Jennifer Finch, et al., Appellants, v. SEMINOLE COUNTY SCHOOL BOARD, et al., Appellees.
    No. 5D05-1203.
    District Court of Appeal of Florida, Fifth District.
    Jan. 26, 2007.
    Rehearing Denied March 21, 2007.
    Alex Finch, of Aronsohn Law Group, LLP, Longwood, for Appellants, SC. Read, Inc. and Jennifer Finch.
    Damon A. Chase, of Chase Law Offices, P.A., Altamonte Springs, for Intervenor, Tuseawilla Homeowners’ Association, Inc.
    Ned N. Julian, Jr. and Serita D. Beam-on, Sanford, and Marcia K. Lippincott, of Marcia K. Lippincott, P.A., Lake Mary, for Appellee.
   PER CURIAM.

This appeal arose out of a proposed agency action in the form of school attendance zone redistricting in Seminole County. Appellants, S.C. Read, Inc. and Jennifer Finch, as parent, legal guardian and next friend of Christopher Brady (collectively “Appellants”), appeal the administrative law judge’s final order dismissing their second amended petition/request for determination of invalidity of proposed rule. We find no reversible error and affirm. In particular, we cannot agree with Appellants’ contention that the Seminole County School Board’s policy J mandated the Board’s adoption, without change, of one of the plan alternatives selected by the core committee.

AFFIRMED.

GRIFFIN, PALMER and EVANDER, JJ., concur.


author: SILVERMAN, SCOTT J., Associate Judge. BENTON, J.,

text:
    Omar CLIETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3193.
    District Court of Appeal of Florida, First District.
    Jan. 26, 2007.
    Rehearing Denied March 16, 2007.

      Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   SILVERMAN, SCOTT J., Associate Judge.

Appellant Omar Cliett challenges his conviction and sentence for robbery. We affirm and address only Cliett’s argument pertaining to the standard jury instruction for robbery.

Cliett argues that the standard jury instruction for robbery does not adequately reflect the law on robbery. See Fla. Std. Jury Instr. (Crim.) 15.1. Cliett contends that the “putting in fear” element of the instruction improperly focuses on the victim’s subjective fear, instead of on whether the victim’s fear was reasonable. See Brown v. State, 397 So.2d 1153, 1155 (Fla. 5th DCA 1981) (“[T]he question is not whether the victim here actually feared appellant, but whether a jury could conclude that a reasonable person under like circumstances would be sufficiently threatened to accede to the robber’s demands.”).

We reject Cliett’s argument. The supreme court adopted the standard jury instruction in 1981 and, although the instruction has been amended three times, the “putting in fear” element has gone unchanged. See Fla. Std. Jury Instr. (Crim.) 15.1 cmt.; see also Freeman v. State, 761 So.2d 1055, 1071 (Fla.2000) (stating that “standard jury instructions are presumed to be correct”). The instruction does not use the term “subjective,” nor does it ask the jury to view the circumstances from the victim’s point of view. The instruction simply asks whether, from a jury’s external viewpoint, the victim was put in fear — an objective analysis. Although Cliett points to one reported case in which the state sought a special reasonable person jury instruction, the instruction simply clarified the standard instruction and did not substantively alter it. See Smithson v. State, 689 So.2d 1226 (Fla. 5th DCA 1997). The challenged instruction, read as a whole, fairly presents the law and does not mislead the jury. See Waters v. State, 298 So.2d 208 (Fla. 2d DCA 1974).

AFFIRMED.

LEWIS, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

This case points up a shortcoming in the standard jury instruction on robbery. See Fla. Std. Jury Instr. (Crim.) 15.1. Under accepted rules of decision, moreover, the failure to instruct the jury that it had to determine whether what Omar Cliett said and did would have placed a reasonable person in fear — not merely (or not even) whether the victim was in fact in fear— was fundamental error, in my view, requiring reversal and remand for a new trial. Accordingly, I respectfully dissent.

Notwithstanding the lack of any objection to the jury instructions below, we must decide whether, as appellant now contends, the trial court inaccurately defined the “putting in fear” element of robbery in instructing the jury. See generally Barnes v. State, 864 So.2d 1200, 1201-02 (Fla. 1st DCA 2004); Griffis v. State, 848 So.2d 422, 426-28 (Fla. 1st DCA 2003).

[I]n Reed v. State, 837 So.2d 366[, 369] (Fla.2002), ... our supreme court held that misstating an element of an offense in instructing the jury even in accordance with an often used standard jury instruction constituted fundamental error requiring reversal without regard to the usual rules of preservation because “the inaccurate definition of malice [the element at issue in Reed] reduced the State’s burden of proof’ on a disputed element.

Foster v. State, 861 So.2d 434, 442-43 (Fla. 1st DCA 2003) (On Mot. for Reh’g) (last alteration in original). The majority opinion addresses appellant’s argument and rejects it. But it persuades me that here, as in Reed, an inaccurate definition of an essential component of the offense charged — here “putting in fear” — imper-missibly reduced the State’s burden of proof on a disputed element.

The State had the burden to prove that the accused conducted himself in a way that would have put a reasonable person in fear. See Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th DCA 2003) (“Thus, the controlling factor is not necessarily the victim’s subjective state of mind, but whether a jury could conclude that a reasonable person, under like circumstances, would have felt sufficiently threatened to accede to the robber’s demands.”). The robbery statute embodies an objective, not a subjective standard.

Lisa Alley testified she was at work behind a cash register when Mr. Cliett came around the counter with a gun, told her not to say a word and to open the cash register drawer; and that, when she complied, he took less than $100 from the drawer and left the store with a companion. Videotape in the store’s security cameras caught much of what happened, including views of the hand in which Ms. Alley testified Mr. Cliett carried a gun.

But the State did not charge armed robbery. In arguing for judgment of acquittal at the close of the State’s case, defense counsel argued that the evidence, taken in the light most favorable to the State’s position,

does not show that Mr. Cliett, first of all, used any violence, second of all, used any force and, third of all, used any putting in fear. I think the evidence has been unclear as to whether or not Mr. Cliett used a weapon.

Denying the motion for judgment of acquittal, the trial judge remarked: “If he had been charged with robbery with a firearm I would have granted the JOA as to the firearm element.”

Sufficiency of the evidence is not in dispute. The learned trial judge ruled-and there can be little doubt — that there was “plenty of evidence from which a jury could find that what he said to the clerk and his actions with his hands put the clerk in fear.” But the question on appeal is whether the jury was given the correct question to decide when instructed:

To prove the crime of robbery, the state must prove the following four elements beyond a reasonable doubt. First, that [the appellant] took the money or other property from the person or custody of [the victim]; second, force, violence, assault, or 'putting in fear was used in the course of the taking; third, the property taken was of some value; four, the taking was with the intent to permanently or temporarily deprive Sprint Food Store of their right to the property or any benefit from it.
The taking must be by the use of force or violence or by assault so as to overcome the resistance of the victim or by putting the victim in fear so that the victim does not resist. The law does not require that the victim of robbery resist to any particular extent or that the victim offer any actual physical resistance if the circumstances are such that the victim is placed in fear of death or great bodily harm if he or she does not resist, but, unless prevented by fear, there must be some resistance to make the taking one done by force or violence.
In order for a taking by force, violence, or putting in fear to be robbery, it is not necessary that the taking be from the person of the victim. It is sufficient if the property taken is under the actual control of the victim so that it cannot be taken without the use of force, violence, or intimidation directed against the victim.

(Emphasis supplied.) The “putting in fear” element was genuinely in dispute. Alluding to Ms. Alley’s testimony that she had been robbed twice before, defense counsel argued to the jury that “if she’s been a victim twice, she may have been overly sensitive and she may have perceived a robbery when only a petit theft was taking place.” She also argued:

If you look at Ms. Alley’s behavior in the video, if you look at how she’s acting, her hands are on her hips — one hand is on her hip, the other is on the thing. That’s a casual stance.... And what it supports is that Mr. Cliett went behind the register, snatched the money, and ran.

Responding to defense counsel’s argument in its own closing, the State contended that whether or not Mr. Cliett had a gun was immaterial, and further with regard to “putting in fear”:

It’s based on what the victim perceived. She perceived that this man was going to harm her.
Even if this defendant poked his finger into her, even if he never touched her, even if he never — his hands are behind his back and he goes up to her and he goes, “Open the cash drawer; be quiet and open the cash drawer,” if she’s in fear, if that puts a chill up her spine and she says, “Oh, my God, something bad might happen,” and it’s midnight—

At this point, defense counsel objected to the State’s closing argument as “contrary to the law,” but her objection was overruled. After the case went to the jury, the jury interrupted their deliberation to send out a laconic note reading simply, “The jury instructions regarding fear.” In response, with the agreement of counsel, the trial court reread the entire robbery instruction to the jury.

Ms. Alley’s subjective feelings are pertinent only insofar as they bear on whether or not the circumstances she found herself in would ordinarily induce fear “of death or great bodily harm” in the mind of a reasonable person.

Robbery is defined in section 812.13(1), Florida Statutes (1979) as “the taking of money or other property which may be the subject of larceny from the person or custody of another, by force, violence, assault, or putting in fear.” (emphasis added). The fear contemplated by the statute is the fear of death or great bodily harm. Rolle v. State, 268 So.2d 541 (Fla. 3d DCA 1972). To sustain a conviction for robbery, it is not necessary to show that actual violence was used, nor is it required that the victim be placed in actual fear. Montsdoca v. State, 84 Fla. 82, 93 So. 157 (Fla.1922). If the circumstances attendant to the robbery were such as to ordinarily induce fear in the mind of a reasonable person, then the victim may be found to be in fear for the purpose of the robbery statute, and actual fear need not be strictly and precisely shown. Flagler v. State, 189 So.2d 212 (Fla. 4th DCA 1966), affirmed 198 So.2d 313 (Fla.1967); Thomas v. State, 183 So.2d 297 (Fla. 3d DCA 1966).

Brown v. State, 397 So.2d 1153, 1154-55 (Fla. 5th DCA 1981). To like effect, the Second District has said:

In a case such as this, where no force has been used, the defendant can be convicted of robbery only if the victim is placed in fear of death or great bodily harm. Brown v. State, 397 So.2d 1153 (Fla. 5th DCA 1981). The controlling factor, however, is not the victim’s mere statement that he had been placed in fear:

[T]he question is not whether the victim here actually feared appellant, but whether a jury could conclude that a reasonable person under like circumstances would be sufficiently threatened to accede to the robber’s demands.

397 So.2d at 1155.

Schram v. State, 614 So.2d 646, 646 (Fla. 2d DCA 1993). The jury instructions the trial court read (then reread) permitted conviction for robbery (instead of theft) on the basis of the victim’s ill founded and idiosyncratic misperception, since they did not specify an objective standard.

The same objective standard applies under the assault statute. See McKinnon v. State, 712 So.2d 1259, 1260 (Fla. 1st DCA 1998) (“ ‘Under the assault statutes, it is settled that a ‘well-founded fear’ is measured by a reasonable person standard, not a subjective standard.’ ”) (quoting Pallas v. State, 636 So.2d 1358, 1361 (Fla. 3d DCA 1994)). Accordingly, the standard jury instruction on assault correctly requires proof of a “well-founded fear that the violence was about to take place.” See Fla. Std. Jury Instr. (Crim.) 8.1 (emphasis supplied). In contrast, the robbery instruction omits the requisite objective standard. It requires proof merely of “putting the victim in fear so that the victim does not resist,” without specifying that the fear has to be objectively reasonable. See Fla. Std. Jury Instr. (Crim.) 15.1. The State has not shown that this error was harmless beyond a reasonable doubt.


text:
    John THURSTON, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D06-6230.
    District Court of Appeal of Florida, First District.
    Jan. 29, 2007.
    Rehearing Denied March 16, 2007.
    John Thurston, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Higueras v. Crosby, 924 So.2d 18 (Fla. 1st DCA 2005).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: DAVIS, J. BROWNING, C.J.,

text:
    WAKULLA COMMERCIAL FISHERMEN’S ASSOCIATION, INC., and Ronald Fred Crum, Appellants, v. FLORIDA FISH AND WILDLIFE CONSERVATION COMMISSION, Appellee.
    No. 1D06-1554.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2007.
    Rehearing Denied March 14, 2007.

      Ronald A. Mowrey, of Mowrey & Big-gins, P.A., Tallahassee, for Appellants.
    Charlie Crist, Attorney General, and Jonathan A. Glogau, Chief, Complex Litigation, Tallahassee, for Appellee, and Fred McCormack of Fred McCormack, LLC, Tallahassee, for Amicus Curiae, The Coastal Conservation Association, d/b/a The Coastal Conservation Association-Florida.
   DAVIS, J.

Wakulla Commercial Fishermen’s Association, Inc., and Ronald Fred Crum (Appellants), filed an action challenging the constitutional validity of three rules adopted by the Florida Fish and Wildlife Conservation Commission (Appellee). Appellants and Appellee filed separate motions for summary judgment with supporting affidavits. Finding that a rational basis supports the three challenged rules, the trial court denied Appellants’ motion for summary judgment and granted Ap-pellee’s motion for summary judgment. Having considered de novo the record and the arguments, we conclude that summary judgment was properly entered in favor of Appellee, and we affirm.

Summary judgment is proper if no genuine issue of material fact exists and the movant is entitled to a judgment as a matter of law. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Because Appel-lee’s actions are not reviewable under the Administrative Procedures Act, a rule adopted by Appellee is “tantamount to a legislative act.” Airboat Ass’n of Fla., Inc. v. Fla. Game & Fresh Water Fish Comm’n, 498 So.2d 629, 631 (Fla. 3d DCA 1986). Appellee is vested with the exclusive legislative authority to adopt reasonable rules to regulate marine life in this state, and the legislature is constitutionally prohibited from adopting statutes in conflict with such rules. Whitehead v. Rogers, 223 So.2d 330 (Fla.1969); State ex rel. Griffin v. Sullivan, 158 Fla. 870, 30 So.2d 919 (1947); Price v. City of St. Petersburg, 158 Fla. 705, 29 So.2d 753 (1947). Appel-lee’s rules come before the court with a strong presumption of validity and must be upheld if they are rationally or reasonably related to1 a legitimate state interest. This Court has previously determined that the protection of marine resources is a legitimate state interest. State v. Leavins, 599 So.2d 1326, 1336 (Fla. 1st DCA 1992).

The three challenged rules are Florida Administrative Code Rules 68B-4.0081, 68B-4.002, and 68B-39.0047. Respectively, these rules: (1) criminalize the use of nets with meshes which, when stretched, are greater than two inches;- (2) define entangling-nets, which, along with gill nets, are prohibited by Article X, Section 16 of the Florida Constitution, as any net which entangles or ensnares saltwater finfish, shellfish, or other marine animals in the meshes or in the pockets of the net (the only difference between this definition and the constitutional definition being the rule’s addition of the phrase “or in the pockets”); and (3) lists the gear that is allowed to be used for harvesting striped or silver mullet, and proscribes the use of any harvesting gear not included in the list.

Because the challenged rules do not involve a suspect class or a fundamental right, they are reviewed under the rational basis test. Under the rational basis test, the validity of the rules must be upheld if “any state of facts may be conceived to justify [them].” McElrath v. Burley, 707 So.2d 836, 839 (Fla. 1st DCA 1998) (quoting Schwarz v. Kogan, 132 F.3d 1387, 1393 (11th Cir.1998)). Whether Ap-pellee chose the best method to protect marine resources is not an appropriate judicial inquiry under the rational basis standard. Haire v. Fla. Dep’t of Agric. & Consumer Servs., 870 So.2d 774, 787 (Fla. 2004). Thus, the only questions before the trial court were: (1) whether there is a rational basis for defining nets with meshes greater than two inches as constitutionally prohibited gill or entangling nets (68B-4.0081), adopting the constitutional definition by rule (68B-4.002), and not allowing such a net to be used in the mullet fishery (68B-39.0047); and (2) whether there is any state of facts to prove that these rules could further the goal of protecting marine resources.

Appellants argue that recent research indicates that nets with two-inch meshes gill a significant number of non-usable juvenile fish, which could lead to eradication of the species, whereas nets with larger meshes gill fewer fish — and the ones which are gilled by the large meshes are older, commercially viable fish. Because two-inch nets kill juvenile fish, Appellants argue that these three rules operate together to violate the Florida Constitution’s ban on gill and entangling nets, which ban exists to “protect saltwater finfish, shellfish, and other marine animals from unnecessary killing, overfishing and waste.” Art. X, § 16(a), Fla. Const.

Appellee, on the other hand, presented expert testimony that the mullet population remains healthy and has actually increased, since the implementation of the two-inch net mesh limitation. This testimony, which was not rebutted, is sufficient to establish a rational basis for Ap-pellee’s adoption of the challenged rules as a means of furthering the goal of protecting marine resources. Because there was an uncontradicted rational basis to support the challenged rules, the trial court properly granted summary judgment in favor of Appellee.

Accordingly, the judgment of the trial court is AFFIRMED.

LEWIS, J., concurs; BROWNING, C.J., dissents with written opinion.

BROWNING, C.J.,

dissenting.

Because the trial court and majority correctly state the legal principles governing the entry of a summary judgment, but fail to properly apply those principles to the record facts of this case that present a genuine issue of fact, I respectfully dissent.

The majority presents only a portion of the facts that are necessary for the proper disposition of this appeal, a reversal. The record reveals unrebutted expert testimony that the use of the two-inch net results in netting significantly more juvenile fish and less marketable adult fish than a three-inch mesh net, and that if continued, this practice will eventually eliminate and annihilate the mullet resource. Also, the record contains expert opinion testimony on the ultimate issue that no rational basis exists for the Appellee’s adoption of the two-inch mesh requirement.

In the face of this unchallenged testimony from two expert witnesses, it is inconceivable to me that an affidavit containing an allegation that the fish population has increased provides a rational basis that supports the entry of summary judgment here. Such a conclusion can be reached only by concluding for summary judgment purposes that the two affidavits of the Appellee’s experts are not credible, and it is well-known that questions of credibility cannot be resolved by summary judgment. By so doing, the trial court reversibly erred, and this court should reverse as the precedents alluded to in the majority opinion require.

Moreover, this case can be affirmed only by disregarding the mandate of section 90.703, Florida Statutes (2005), which provides:

Opinion on ultimate issue. — Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it includes an ultimate issue to be decided by the trier of fact.

Two of Appellee’s experts unequivocally testified there is no rational basis for the two-inch mesh requirement. This clearly refutes and makes an issue of the existence of any rational basis, which by necessity includes the rational basis found by the trial court and the majority.

Finally, I am concerned about the prece-dential impact of the majority opinion on the relationship of average citizens, such as Appellants, with governmental agencies in the future. If agencies are not required to justify their alleged rational basis at an evidentiary hearing when that basis is refuted, as here, this court is preparing a fertile field for the growth of imperious agencies, with all of the mischief it entails.

For these reasons, I dissent.


text:
    Todd JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-0705.
    District Court of Appeal of Florida, First District.
    Feb. 2, 2007.
    Nancy A. Daniels, Public Defender, and Terry Carley, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions and sentences for burglary and petit theft arguing that the trial court should have granted his motion for mistrial. Because the trial court abused its discretion by denying the motion, we reverse and remand for a new trial.

During Appellant’s trial, an officer testified that Appellant invoked his right of counsel during a custodial interrogation. This comment is fairly susceptible of being interpreted by the jury as a comment on Appellant’s right to remain silent. State v. DiGuilio, 491 So.2d 1129, 1131 (Fla.1986). Comments on a defendant’s right to remain silent are high risk errors because there is a substantial likelihood that such comments will vitiate the defendant’s right to a fair trial. Grier v. State, 934 So.2d 653, 655 (Fla. 4th DCA 2006). In order to find that the trial court did not abuse its discretion by denying Appellant’s motion for mistrial, we must find that the officer’s comment was harmless error. However, after reviewing the entire record, we are unable to say that there is no reasonable possibility that the officer’s comment contributed to Appellant’s conviction's. DiGuilio, 491 So.2d at 1135. Therefore, the trial court abused its discretion by denying the motion for mistrial. We reverse Appellant’s convictions for burglary and petit theft and remand for a new trial.

REVERSED and REMANDED.

ALLEN, KAHN, and DAVIS, JJ., concur.


author: VAN NORTWICK, J. BENTON, J.,

text:
    Roy PEARSON, Appellant, v. PARADISE FORD and Comp Options Insurance; Budget Group, Inc. and CNA ClaimPlus, Appellees.
    No. 1D05-0957.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2007.
    Rehearing Denied March 16, 2007.

      Alfred J. Hilado, Orlando, and Bill McCabe, Longwood, for Appellant.
    Jeffrey W. Golovin of Kelley, Kronen-berg, Kelley, Gilmartin, Fichtel & Wander, P.A., West Palm Beach, and Clint M. Lavender, Orlando, for Appellees Paradise Ford and Comp Options Insurance.
    James F. Kidd and C. Jason Grundorf of Moran & Shams, P.A., Orlando, for Appel-lees Budget Group, Inc. and CNA Claim-Plus.
   VAN NORTWICK, J.

This workers’ compensation appeal involves two employment accidents, the first in 1999 and the second in 2004, each of which resulted in an injury to the back of claimant, Roy Pearson, and both of which combined to cause his current need for compensation benefits. Based upon medical evidence, the Judge of Compensation Claims (JCC) determined that 80% of claimant’s condition was related to the 1999 accident and 20% was related to the 2004 accident. The JCC ruled, however, that, since the 2004 accident was not greater than 50% responsible for claimant’s condition, that accident was not compensable pursuant to the 2003 amendments to section 440.09(l)(b), Florida Statutes (2003), see Chapter 2003-412 § 6 at 3876, Laws of Florida, and that, therefore, the employer/carrier at risk for the 2004 accident, appellees Paradise Ford and Comp Options Insurance (Paradise Ford/Comp Options), could not be held responsible for any contribution to medical or indemnity benefits due the claimant. The JCC further determined that the employer/carrier at risk for the 1999 accident, appellees Budget Group and CNA ClaimPlus (Budget Group/CNA), were required to pay claimant 80% of the benefits due for the period May 3, 2004, through November 12, 2004. We affirm the JCC’s allocation of responsibility between the two employer/carriers. Because we conclude that section 440.09(l)(b) does not apply here, we reverse the JCC’s ruling that section 440.09(l)(b) absolves Paradise Ford/Comp Options of any responsibility for claimant’s workers’ compensation benefits. Finally, we reverse the JCC’s determination that benefits were due for the period ending November 12, 2004, rather than December 8, 2004, the date of the merits hearing in this case, because the evidence is uncon-tradicted that claimant followed the advice of his treating physician and was unaware that his non-work status was changed before the merits hearing. Accordingly, we affirm in part, reverse in part, and remand for further proceedings consistent with this opinion.

Claimant has worked as an automobile mechanic at a Ford dealership in Cocoa since 1988. He was employed by Budget Group on August 13, 1999, when he suffered a back injury lifting a wheel and tire. He was treated conservatively by his treating physician, Dr. Glenn, and returned to work. He continued to see Dr. Glenn for ongoing low back pain and right lower extremity pain. He was able to maintain his employment by taking anti-inflammatory medication and muscle relaxers. Although Dr. Glenn recommended a facet block, it was not performed.

In August 2002, the ownership of the dealership was transferred from Budget Group to Paradise Ford and the carrier at risk became Comp Options Insurance. On April 26, 2004, while working for Paradise Ford, claimant injured his back when he attempted to move a passenger seat. He felt immediate and sharp low back pain as well as numbness and tingling down both of his lower extremities. Paradise Ford/ Comp Options initially provided treatment, but then controverted claimant’s accident on the ground that his condition was preexisting. Dr. Glenn put claimant in an off-work status and scheduled a facet block. Budget Group/CNA paid two of Dr. Glenn’s bills, but did not authorize any medical treatment thereafter. The facet block was not performed. Neither employer/carrier paid claimant indemnity benefits.

Claimant requested and received an IME by Dr. Gregory Munson, an orthopedist, on October 11, 2004. Upon examination, Dr. Munson did not find any neurological deficits or any objective findings of radiculopathy or nerve root compression. Dr. Munson opined that claimant should be kept off work at least until a new MRI was obtained. The MRI was performed on November 12, 2004. Dr. Munson compared this MRI with two MRI studies which were done in October 2003, and opined that the new MRI did not show a worsening of claimant’s prior back condition. While there was some indication that an October 31, 2003 MRI revealed a possible disk herniation, Dr. Munson reported that he did not see that condition on the 2004 MRI. He attributed 80% to 90% of claimant’s current condition to his 1999 accident, and 10% to 20% to the 2004 accident. Dr. Glenn concurred that the major contributing cause of claimant’s need for medical treatment after April 26, 2004 was the 1999 accident.

Claimant filed petitions against Budget Group/CNA and Paradise Ford/Comp Options. Budget Group/CNA controverted, contending that the 2004 accident was an intervening cause and major contributor to claimant’s condition and that, therefore, Paradise Ford/Comp Options is responsible for the benefits due to the claimant. Paradise Ford/Comp Options also controverted, arguing that claimant’s disability was due to his preexisting condition and not the 2004 accident. The merits hearing was held on December 8, 2004.

The JCC found that “for the 1999 industrial accident ... the claimant carried his necessary burden of proof that he had an accident arising out of and in the course of [sic] scope of his employment.” Further, the JCC determined that temporary total disability (TTD) benefits should be paid only through November 12, 2004, the date of the MRI recommended by Dr. Munson, because there was no objective medical evidence which would entitle claimant to benefits thereafter. The JCC accepted Dr. Munson’s opinion and, based on this opinion, found that 80% of claimant’s condition was related to the 1999 accident and 20% was related to the 2004 accident. Based on this finding, he ruled that under the post-October 1, 2003 revisions to section 440.09(l)(b), Paradise Ford/Comp Options was not liable for any TTD benefits for the 2004 accident because the 2004 accident was not more than 50% responsible for the claimant’s need for treatment and benefits.

The JCC found that Budget Group/CNA was liable to pay claimant 80% of the TTD benefits for the period May 3, 2004 through November 12, 2004, and 80% of the claimant’s medical treatment until claimant returned to his pre-April 26, 2004 condition. The JCC ruled that, since the 2004 accident was not compensable under section 440.09(l)(b), neither employer/carrier was responsible for 20% of the incurred TTD benefits or medical expenses. The JCC explained:

Although this Court finds that there is evidence that the April 26, 2004, accident contributed to the claimant’s subsequent need for treatment and/or loss, the level of liability did not rise to a level required by the statute in order for [Paradise Ford/Comp Options] to be responsible for their “contributed effect.”

On appeal, the claimant and Budget Group/CNA assert that the JCC’s interpretation of section 440.09(l)(b), Florida Statutes (2003), is erroneous. They contend that section 440.09(l)(b), Florida Statutes (2003), should be read as applying only when a claimant’s preexisting condition did not arise in the course of employment. Thus, since the claimant’s injuries here were caused solely by multiple employment accidents, section 440.09(l)(b) should not be determinative.

Paradise Ford/Comp Options argues that section 440.09(l)(b) applies to any preexisting condition or injury no matter the source. Thus, where a claimant’s condition is caused by the effects of a combination of two or more industrial accidents, only the employer/carrier responsible for the accident which constitutes the major contributing cause of the claimant’s injuries is required to provide compensation or benefits.

We agree that section 440.09(l)(b) does not apply here. Section 440.42(4), Florida Statutes (2003), not section 440.09(l)(b), controls the case under review. We held in B & L Services, Inc. v. Coach USA, 791 So.2d 1138, 1142-43 (Fla. 1st DCA 2001), that section 440.42(3) [now section 440.42(4) ] governs the division of liability between carriers when two or more compensable accidents combine to cause the claimant’s need for benefits. See also Jeffrey’s Steel v. Conibear Equip., 854 So.2d 268, 271 (Fla. 1st DCA 2003); and Handy-Man/Knep, Inc. v. Weinstein, 802 So.2d 1186, 1189 (Fla. 1st DCA 2002). In B & L Services, Inc., 791 So.2d at 1143, we explained:

As we conclude that the legislature did not intend to apply the major contributing cause standard to section 440.42(3), the JCC must evaluate any reimbursement or contribution claim under the preexisting standard. “The determinative factor in placing liability under Section 440.42(3) is whether the second compensable accident causes injury which is independent from or an exacerbation of the first compensable accident. Section 440.42(3) thereafter allows the deputy [JCC] to divide liability according to each carrier’s responsibility.” See U.S. Elec. Co. v. Sisk Elec. Service, Inc., 417 So.2d 738 (Fla. 1st DCA 1982). A causal connection must exist between the claimant’s employment and second industrial injury in order to justify apportionment of liability among carriers. See Custom Architectural Metals v. Bradshaw, 623 So.2d 804, 806 (Fla. 1st DCA 1993).

Thus, here, the JCC erred in not dividing liability 80% to Budget Group/CNA and 20% to Paradise Ford/Comp Options in accordance with his findings of responsibility.

Our holding that section 440.09(l)(b) is not applicable to the instant case is supported by the manner in which the statute was amended in 2003. It is apparent that the amendments to subsection (l)(b) of section 440.09 were intended to overrule our decision in Closet Maid v. Sykes, 763 So.2d 377 (Fla. 1st DCA 2000)(en banc). In Closet Maid, we defined the term “the major contributing cause” in section 440.09(l)(b), Florida Statutes (Supp.1994), in the context of a ease in which the claimant suffered an employment accident which combined with his preexisting condition of spinal stenosis to cause a need for lumbar laminectomy surgery and other compensation benefits. We held that under section 440.09(l)(b) “coverage is available if the workplace accident contributes more to the disability or need for treatment than any other single cause.” Id. at 381. We also held that major contributing cause could be established by either medical or lay evidence. Id. at 382.

In the 2003 amendments to section 440.09(l)(b), the legislature rejected both the Closet Maid definition of major contributing cause and the use of lay evidence to establish causation. As a result, it seems evident that the legislature intended (l)(b) to apply only when the claimant’s need for treatment or benefits is caused by the impact of an employment accident combining with a preexisting injury or condition that is unrelated to an employment accident.

Further, we believe that the interpretation of the amended section 440.09(l)(b) argued by Paradise Ford/Comp Options would produce absurd results in cases involving a claimant with injuries caused solely by multiple employment injuries with different employers. If we read the statute to exclude responsibility of employer/carriers which do not contribute more than 50% to the claimant’s need for compensation benefits, then by definition at most only one employer/carrier will have any responsibility for benefits in such cases. In addition, in circumstances where, for example, three employment accidents combine to cause all of the claimant’s need for compensation benefits, with each accident causing one-third of claimant’s injuries, since no employer/carrier would be more than 50% responsible for claimant’s injuries, no employer/carrier would be obligated to provide treatment or benefits, and no treatment or benefits would be provided the claimant. We cannot believe the legislature would intend such a result. Weber v. Dobbins, 616 So.2d 956, 958 (Fla.1993)(“a literal interpretation of the language of a statute need not be given when to do so would lead to an unreasonable or ridiculous conclusion.”)(quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)).

Finally, the JCC did not award any benefits to claimant after the date of his MRI on November 12, 2004, because the MRI did not provide objective medical evidence that claimant’s condition had worsened as a result of the 2004 accident. Claimant had been placed in an off-work status by his treating physician, Dr. Glenn, in October 2004, however, and was never returned to work by Dr. Glenn or the employer/carrier. Further, the JCC expressly found that this no-work status “was the only one the claimant was aware of through the date of the merits hearing.”

We have consistently held in workers’ compensation cases “that even in the absence of medical evidence” of a claimant’s disability, a claimant is nonetheless entitled to benefits if he has not been advised to return to work. Garcia-Vina v. U.S. Holiday Health and Recreation, 634 So.2d 200, 201 (Fla. 1st DCA 1994); Amburgey v. Palm Beach County School Bd., 712 So.2d 426, 427 (Fla. 1st DCA 1998). While Dr. Munson did opine in his letter of December 4, 2004, that claimant could work light duty, there is no proof that this letter was received in time for claimant’s attorney to relay the information to claimant before the merits hearing was held four days later on December 8. Because the JCC found that claimant was not aware he was to return to work before the date of the merits hearing, there is no support for the JCC’s determination not to award benefits through the date of that hearing. The rule of Amburgey has continued to be applied to post-2003 accidents. See Seminole County School Bd. v. Tweedie, 922 So.2d 1011, 1013 (Fla. 1st DCA 2006). Accordingly, we reverse the JCC’s ruling that benefits were due through November 12, 2004, rather than December 8, 2004.

AFFIRMED in part, REVERSED in part, and REMANDED for proceedings consistent with this opinion.

ALLEN, J., concurs, and BENTON, J., concurs in part and dissents in part with written opinion.

BENTON, J.,

concurring in part and dissenting in part.

I share the majority’s view that Roy Pearson is entitled to full temporary total disability and medical benefits, not merely eighty per cent of what the Workers’ Compensation Act prescribes. Medical evidence demonstrated, and the judge of compensation claims found, that “80% of claimant’s condition was related to the 1999 accident,” ante p. 15, and that the 1999 “injury arising out of and in the course of employment is and remains” more than fifty per cent responsible for the injury as compared to all other causes combined “and [still] remains the major contributing cause of the disability.” § 440.09(l)(b), Fla. Stat. (1999).

Under the Act in force at the time of the 1999 accident, therefore, the 1999 (first) employer and its insurance carrier are responsible for payment of these benefits. See § 440.15(5)(a), Fla. Stat. (1999) (“Compensation for temporary disability, medical benefits, and wage-loss benefits shall not be subject to apportionment.”). See also B & L Servs., Inc. v. Coach USA, 791 So.2d 1138, 1148 (Fla. 1st DCA 2001) (Benton, J., dissenting) (“Since he proved ‘that the [initial] work-related injury is the major contributing cause of his subsequent injury or aggravation,’ Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 639, 642 (Fla. 1st DCA 1996), the judge of compensation claims properly ordered the first employer (and its insurance carrier) to pay him the benefits to which he is entitled under the Workers’ Compensation Law.”) (alteration in original).

Accordingly, I would affirm the determination below that the 2004 (second) employer and its insurance carrier are not responsible for compensation benefits on account of a condition only “20% ... related to the 2004 accident.” Ante p. 13. With respect, I believe this is what the Legislature intended in enacting, then in amending, section 440.09(l)(b). See Closet Maid v. Sykes, 763 So.2d 377, 381 (Fla. 1st DCA 2000) (“It is thus no longer enough for an injured worker to show that a workplace accident is causally related [to] a particular injury, as in Reynolds v. Whitney Tank Lines, 279 So.2d 293 (Fla.1973), or that the accident contributed to the need for treatment. Coverage is available under the statute only if the workplace accident ‘is and remains the major contributing cause of the disability or need for treatment.’ ”).

The statute draws no distinction between a “preexisting disease or condition” attributable to work in the same or another industry and a “preexisting disease or condition” with a nonindustrial etiology. The majority opinion’s discussion of this point is not, moreover, necessary to today’s decision.

      . Section 440.09(l)(b), Florida Statutes (2003) was amended by the 2003 Legislature in the following manner:
      (b) If any injury arising out of and in the course of employment combines with a preexisting disease or condition to cause or prolong disability or need for treatment, the employer must pay compensation or benefits required by this chapter only to the extent that the injury arising out of and in the course of employment is and remains more than 50 percent responsible for the injury as compared to all other causes combined and thereafter remains the major contributing cause of the disability or need for
      treatment. Major contributing cause must be demonstrated by medical evidence only.

      Ch. 2003-412 § 6 at 3876, Laws of Fla.

      . The claimant also argues that, notwithstanding section 440.09(1), Florida Statutes (2003), under sections 440.02(1) and 440.15(5)(a), Florida Statutes (2003), where a claimant has a preexisting condition, whether from a prior compensable accident or an idiopathic condition, the claimant has sustained a compensable accident if the accident has aggravated the preexisting condition. Under the facts of the instant case, we are not required to reach this issue.

      . Section 440.42(4) provides:
      When there is any controversy as to which of two or more carriers is liable for the discharge of the obligations and duties of one or more employers with respect to a claim for compensation, remedial treatment, or other benefits under this chapter, the judge of compensation claims shall have jurisdiction to adjudicate such controversy; and if one of the carriers voluntarily or in compliance with a compensation order makes payments in discharge of such liability and it is finally determined that another carrier is liable for all any part of such obligations and duties with respect to such claim, the carrier which has made payments either voluntarily or in compliance with a compensation order shall be entitled to reimbursement from the carrier finally determined liable, and the judge of compensation claims shall have jurisdiction to order such reimbursement; ...


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. Maurice BLUE and Cedric Dames, Respondents.
    Nos. 4D06-3534, 4D06-3535.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.

      John A. Raymaker, Assistant General Counsel, Tallahassee, for petitioner.
    Carey Haughwout, Public Defender, and Daniel Cohen, Assistant Public Defender, for respondents.
   PER CURIAM.

The petitioner, Department of Children and Families (the Department), filed petitions for writs of certiorari to quash the circuit court orders requiring the Department to advise the Palm Beach County Sheriffs Office where to transport defendants Maurice Blue and Cedric Dames or to take custody of the defendants. The orders also directed the Sheriffs Office to transport the defendants to the Florida State Hospital, if the Department failed to advise the Sheriffs Office. Both Blue and Dames were found to be incompetent to stand trial, committed to the Department, and placed on a waiting list to be transported to a forensic facility. The Department argued below that it did not have the ability to place the defendants as there was inadequate bed space in the forensic facilities and there were numerous persons ahead of the defendants on the waiting lists.

Although the transport of Blue and Dames to forensic facilities has now mooted the issues contained in the petitions, we write because the issue raised is capable of repetition yet may otherwise evade review. See Dep’t of Children & Families v. Mitchell, 844 So.2d 694, 695 (Fla. 5th DCA 2003) (denying a petition for writ of prohibition as moot but addressing whether the trial court had authority to order the Department to release the committed defendant for a furlough prior to trial).

The court did not err in ordering the Department to take custody of the defendants. This issue was recently decided by our sister court in Hadi v. Cordero, 31 Fla. L. Weekly D3051, — So.2d -, 2006 WL 3499149 (Fla. 3d DCA Dec. 6, 2006). See also Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002).

We do agree with the Department that the court does not have the authority to direct the Department to place a committed individual in a specific facility. Dep’t of Children & Families v. Morrison, 727 So.2d 404 (Fla. 3d DCA 1999) (quashing a commitment order and holding that placement of an individual into a specific treatment facility is determined by the Department and not the trial court).

We accordingly grant the petitions and quash the portions of the orders directing transportation of the defendants to the Florida State Hospital.

GUNTHER, STONE and KLEIN, JJ., concur.


text:
    PROGRESSIVE SELECT INSURANCE COMPANY, Petitioner, v. Stuart SHOCKLEY, Respondent.
    No. 4D06-4602.
    District Court of Appeal of Florida, Fourth District.
    Feb. 7, 2007.
    John J. Wilke of Wilke & Brooks, P.A., Boca Raton, and Robert I. Buchsbaum of Kramer, Green, Zuckerman, Greene and Buchsbaum, P.A., Hollywood, for petitioner.
    John J. Hoffman of Hoffman & Morris, LLC, Singer Island, for respondent.
   PER CURIAM.

Progressive seeks a writ of cer-tiorari to quash the trial court’s order denying its motion to dismiss a statutory claim for bad faith under sections 624.155 and 626.9541, Florida Statutes (2006). We grant the petition because both the existence of liability and the extent of damages are elements of a statutory cause of action for bad faith, and in this case the extent of damages has not been determined. In allowing this case to proceed before damages have been determined, the trial court has departed from the essential requirements of law. Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla. 1991). For the reasons expressed by the first district in Vanguard Fire & Casualty Co. v. Golmon, 31 Fla. L. Weekly D2835, — So.2d —, 2006 WL 3299196 (Fla. 1st DCA Nov.15, 2006), we agree with Progressive that it will suffer irreparable harm, which includes discovery of its accident file, if it is forced to defend against both the UM claim and the bad faith claim simultaneously. We therefore grant the petition and remand for the trial court to either dismiss the bad faith claim or abate the bad faith claim until the UM claim is resolved.

KLEIN, SHAHOOD and TAYLOR, JJ., concur.


author: DAVIS, Judge.

text:
    Paul Thomas BERNIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-775.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2007.
    Rehearing Denied March 15, 2007.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   DAVIS, Judge.

Paul Thomas Bernier challenges the revocation of his probation, which was based on violations of conditions three and thirty-five of his probation. We affirm the revocation but remand with instructions that the violation of condition thirty-five be stricken.

While on probation for several offenses, Bernier was alleged to have violated eight of the conditions of his probation. Following a violation of probation hearing, the trial court found that Bernier violated two of the conditions of his probation — condition three for changing his residence without his probation officer’s permission and condition thirty-five for failing to successfully complete an anger management course. Accordingly, the trial court revoked his probation and sentenced him to concurrent five-year prison terms.

“A trial court may revoke a defendant’s probation or community control only upon a determination that the greater weight of the evidence supports a finding of a willful and substantial violation.” Dundas v. State, 891 So.2d 1178,1179 (Fla. 2d DCA 2005).

Because Bernier himself testified that he did move from his approved residence without first procuring the consent of his probation officer, we affirm the trial court’s finding that he violated condition three of his probation.

However, condition thirty-five required Bernier to “enter and complete anger management classes (within 1 year).” Bernier was placed on probation on June 20, 2005; the affidavit of violation was filed September 20, 2005. Because Bernier had nine months remaining in which to successfully complete the anger management classes, it was error to find him in violation of this condition. See Davis v. State, 862 So.2d 931, 934 (Fla. 2d DCA 2004) (“This court has consistently reversed revocations of probation based on a probationer being terminated from a treatment program when sufficient time remained in the probationary period to complete the program.”); see also Dunkin v. State, 780 So.2d 223 (Fla. 2d DCA 2001) (concluding that violation was not willful and substantial where condition of probation required completion of sex offender treatment program within first three years of probation but did not specify that program had to be completed on the first try or how many chances probationer had to complete the program). Accordingly, the violation of this condition of probation should be stricken. See Massaline v. State, 937 So.2d 1266 (Fla. 2d DCA 2006).

Nevertheless, the record before us is clear that the trial court would have revoked Bernier’s probation based solely on the violation of condition three. See Mas-saline, 937 So.2d 1266. Accordingly, we affirm the revocation of Bernier’s probation but remand with instructions that the violation of condition thirty-five be stricken.

Affirmed; remanded with instructions.

VILLANTI and LaROSE, JJ., Concur.


text:
    Marc V. MILLER, Petitioner, v. FLORIDA PAROLE COMMISSION, Respondent.
    No. 1D06-3967.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Rehearing Denied March 14, 2007.

      Marc V. Miller, pro se, Petitioner.
    Bill McCollum, Attorney General, Susan Schwartz and Anthony Andrews, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks review of the trial court’s orders (1) denying his petition for a writ of mandamus challenging the calculation of his presumptive parole release date and (2) imposing a lien on his inmate trust account to cover court costs and fees. Because the trial court afforded petitioner due process of law and did not depart from the essential requirements of law when it denied his petition for a writ of mandamus, we deny that portion of his petition for a writ of certiorari on the merits. However, because, as respondent correctly concedes, the action in the trial court was a collateral criminal action as that term is defined in Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003), we grant the petition to the extent it seeks to have the order placing a lien on his inmate trust account vacated. See Brooks v. Fla. Parole Comm’n, 948 So.2d 801 (Fla. 1st DCA 2006); Spaziano v. Fla. Parole Comm’n, — So.2d —, 2006 WL 1565289 (Fla. 1st DCA June 9, 2006).

BROWNING, C.J., WEBSTER, and PADOYANO, JJ., concur.


text:
    Frederick WEBSTER, Petitioner, v. James R. McDONOUGH, Secretary of Florida Department of Corrections, et al., Respondents.
    No. 1D07-0013.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Rehearing Denied March 16, 2007.
    Frederick Webster, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as unauthorized. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


author: PLEUS, C.J.

text:
    Caryll C. BARRETT, Appellant, v. Vansana H. BARRETT, Appellee.
    No. 5D05-2520.
    District Court of Appeal of Florida, Fifth District.
    Feb. 9, 2007.
    Rehearing Denied March 21, 2007.
    Sharon Lee Stedman, Orlando, for Appellant.
    Marcia K. Lippincott, of Marcia K. Lip-pincott, P.A., Lake Mary, for Appellee.
   PLEUS, C.J.

We affirm Judge Sprinkel’s very thorough and well-supported final judgment. Normally, we would issue a per curiam affirmance, but in this case we need to address two items for the education of appellate counsel. Before we do that, appellant’s counsel is reminded that this court functions to correct errors. We do not reweigh evidence.

In the list of issues in his brief, the husband claims the trial court erred in ordering the husband to pay a portion of a debt owed to the wife’s brother. However, in the body of the husband’s brief, the husband makes no mention of this claimed error. In his reply brief, the husband acknowledges that he failed to address this issue in the argument. Accordingly, he waived this argument. See Raskin v. Cmty. Blood Ctrs. of S. Fla., Inc., 699 So.2d 1014, 1016-17 (Fla. 4th DCA 1997). Why bring it up in the first place?

Secondly, the husband filed an untimely motion for attorney’s fees. Rule 9.400(b) requires the motion to be served “not later than the time of service of the reply brief....” The time for filing a reply brief was extended to June 20, 2006. On June 29, 2006, he filed a motion for attorney’s fees and a separate motion to accept his reply brief as being filed on June 29, 2006. This court granted the motion to accept the reply brief, but the motion was silent as to the motion for attorney’s fees. Thus, the motion for attorney’s fees was untimely. If a motion for attorney’s fees is untimely, why file it?

AFFIRMED.

SAWAYA and MONACO, JJ., concur.


author: MONACO, J.

text:
    Charles OSBORNE, Appellant, v. COMMISSION ON ETHICS, et al., Appellee.
    No. 5D05-3954.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Rehearing Denied March 22, 2007.
    Robert J. Riggio, of Riggio & Mitchell, P.A., Daytona Beach, for Appellant.
    C. Christopher Anderson, III and Philip C. Claypool, Tallahassee, for Appellee, Commission on Ethics.
    Steven J. Guardiano, Daytona Beach, for Appellee, Alexander J. Milanick.
   MONACO, J.

Charles Osborne, the former mayor of the Town of Beverly Beach, Florida, appeals an order issued by the Commission on Ethics denying a recommended award of attorney’s fees and costs incurred by him in defending against an ethics complaint filed by the appellee, Dr. Alexander J. Milanick. Mayor Osborne asserts that the Commission erred in holding that he could not recover his attorney’s fees and costs because the body of the ethics complaint filed by Dr. Milanick did not contain the requisite false allegations. Because we conclude that the Commission’s view of the complaint was too restricted, we reverse.

An award of attorneys’ fees in favor of the person complained against in a complaint filed with the Commission on Ethics is governed by section 112.317(8), Florida Statutes (2005), which reads in pertinent part:

In any case in which the commission determines that a person has filed a complaint against a public officer or employee with a malicious intent to injure the reputation of such officer or employee by filing the complaint with knowledge that the complaint contains one or more false allegations or with reckless disregard for whether the complaint contains false allegations of fact material to a violation of this part, the complainant shall be liable for costs plus reasonable attorney’s fees incurred in the defense of the person complained against, including the costs and reasonable attorneys’ fees incurred in proving entitlement to and the amount of costs and fees....

(Emphasis supplied). Florida Administrative Code Rule 34-5.0291(1) essentially mirrors the statute. Thus, the false allegations that might give rise to an award of fees and costs must be contained within the sworn complaint that is filed with the Commission, and must have been made with either malicious intent to injure the reputation of the person complained about, or with reckless disregard for whether the complaint contains such false allegations of fact. If, indeed, there were false allegations made with malicious intent or with reckless disregard of the falsity, then the use of the word “shall” by the legislature would require an award of fees and costs to the public officer or employee complained against.

Briefly summarized the facts reflect that Dr. Milanick had for an extended period tried to get the Town of Beverly Beach to annex land owned by him and his brother. The annexation was vigorously opposed by the appellant, who at the time was the town mayor. Eventually, Dr. Mi-lanick filed a complaint with the Commission on Ethics. The complaint consisted of a form facing sheet required by the Commission bearing the notarized signature of Dr. Milanick, and an attached letter from Dr. Milanick’s attorney to the Commission which spelled out the allegations of wrongdoing by Mayor Osborne. Later, however, when the Ethics Commission investigator asked for a copy of the letter that was attached to the complaint facing sheet, the attorney for Dr. Milanick sent a slightly different version of the letter. The latter added some detail to the allegations initially made. For example, where the letter that was attached to the facing sheet said that Mayor Osborne opposed the annexation because the land would be zoned commercial; the annexation would “jeopardize his personal investment in the Town,” and his opposition was based on “his own personal reasons,” the letter later sent to the investigator said that the Mayor opposed the annexation because his home was adjacent to the commercially zoned property to be annexed. Both letters continued that Mayor Osborne “plainly put his purely personal concerns ahead of his duties as mayor, and fiduciary duty to the citizens of Beverly Beach.” Although later the attorney for Dr. Milanick asserted that he had mistakenly sent an earlier draft of the letter to the investigator, the investigator pointed out that during the investigative proceedings the appellees continued to assert that Mayor Osborne owned a home that was adjacent to the land sought to be annexed.

The Administrative Law Judge (“ALJ”) found that despite the appellee’s allegations, the evidence indicated that Mayor Osborne resisted annexation not for personal reasons or benefit, but rather because of legitimate public concerns over the manner in which the annexation was being proposed, and because of the overall effect the annexation would have had on the Town. In his recommended order the ALJ found further that certain material facts (the Mayor’s purported personal monetary interest in opposing annexation), were falsely alleged against Mayor Osborne by the appellees, that the falsity of the allegations was easily verifiable, and that the attorney for Dr. Milanick was fully aware that Mayor Osborne did not live on property adjacent to the land to be annexed.

While the Commission rejected virtually all of the factual exceptions made by Dr. Milanick to the ALJ’s recommended order, it agreed with one legal exception to the effect that the ALJ’s construction of section 112.317(8) was not correct. In the view of the Commission the material false allegations were not contained within the ethics complaint itself, but rather were made when the complaint was subsequently explained or expanded by the comments of Dr. Milanick’s attorney. On this basis the Commission as a matter of law declined to approve the award of fees and costs to Mayor Osborne. It is the correctness of this ruling that we are asked to review.

As we are dealing with a question of law, we review the issue de novo. See Canakaris v. Canakaris, 382 So.2d 1197 (Fla. 1980); Borden v. Phillips, 752 So.2d 69 (Fla. 1st DCA 2000). Given the facts found by the ALJ and adopted by the Commission, we must determine, accordingly, whether the complaint contained material false allegations sufficient to authorize an award of attorney’s fees and costs. Using the de novo standard of review, we reverse.

The complaint filed by the appellees with the Commission plainly contained in its body the crux of the false material allegations made by the appellees. The ultimate fact alleged in the ethics complaint was that Mayor Osborne was opposing the annexation because of some personal investment that might be diminished if Dr. Milanick’s land was annexed into the town. While the subsequently added assertions of the appellee through his attorney may well have fleshed out the allegations of the complaint and made them more precise, the fact remains that the operative allegations of wrongdoing were fully specified in the complaint. Given that virtually all of the factual findings made by the ALJ, including the finding concerning the falsity of the allegations and the finding that Dr. Milanick and his attorney either knew or should have known that his claim was false, were accepted and adopted by the Commission, we conclude that pursuant to section 112.317(8), Mayor Osborne was entitled to the award of attorney’s fees and costs contained in the recommended order concerning fees.

We, therefore, reverse that part of the Commission’s final order rejecting the recommendation of the ALJ concerning an award of attorney’s fees and costs in favor of Mayor Osborne, and remand for entry of an order making the awards recommended by the ALJ.

REVERSED and REMANDED.

PLEUS, C.J., and SAWAYA, J„ concur.

      . Although section 57.105(5), Florida Statutes (2005), might well have applied to this action, relief under this statute was apparently not sought below.


text:
    Gary J. PRETTYMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 5D04-3200.
    District Court of Appeal of Florida, Fifth District.
    Feb. 16, 2007.
    Rehearing Denied March 21, 2007.

      Laura A. Griffin, Ponte Vedra, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

In 2004, Petitioner, Gary J. Prettyman, filed a petition for writ of habeas corpus based on ineffective assistance of appellate counsel. According to the amended petition, the facts of the underlying case are these: on September 10, 1999, petitioner was involved in two vehicular accidents, the second of which resulted in the death of the driver of the other car and injuries to the front seat passenger. Only minutes prior to the fatal accident, the first accident occurred. The owner of a vehicle in the first accident, Mr. Carroll, testified that something hit his car on Howell Branch Road on the rainy night in question, causing Mr. Carroll’s car to spin around and strike Mr. Van Deneng’s car. Both drivers testified that they did not see what hit them. However, they saw Petitioner right after the accident in a nearby parking lot and went toward him to ask him about the accident. Petitioner first drove into a nearby retention pond, began driving around in circles, and then drove back into the roadway. He was later seen by witnesses fishtailing on the rainy pavement, eventually turning right at the intersection onto SR 436. The second, fatal accident happened moments later at the intersection of SR 436 and Winterwoods. Petitioner went through a red light on SR 436 and hit the other car as it was entering the intersection.

In 2000, the State charged petitioner with manslaughter and vehicular homicide related to the driver who was killed, and with inflicting injury by culpable negligence on the front seat passenger. After a trial, the jury found petitioner guilty of manslaughter, vehicular homicide, and inflicting injury by culpable negligence.

At sentencing, the court merged the second count of vehicular homicide into the first count of manslaughter and sentenced petitioner to 142 months incarceration for the manslaughter conviction and time served on the culpable negligence conviction.

On direct appeal, the appellate public defender submitted an Anders brief. We affirmed without written opinion. Prettyman v. State, 827 So.2d 1014 (Fla. 5th DCA 2002). The mandate was issued on September 27, 2002. On September 23, 2003, petitioner filed his 3.850 motion for post-conviction relief.

In this 2004 petition alleging ineffective assistance of appellate counsel, petitioner claims that appellate counsel was ineffective for not moving to supplement the record with previously unrequested portions of the proceedings and reviewing them before filing the initial brief. Trial counsel’s directions to the clerk included all proceedings except jury selection, opening statement, closing arguments and the jury instructions. Petitioner now claims that his due process rights were violated because his appellate counsel did not examine the entire record before presenting the appeal.

In an Anders appeal, the appellate court is required to undergo an independent examination of the record to determine if there are any arguable issues that require further briefing. Therefore, appellate counsel filing an Anders brief should move to supplement the record if the designations to the court reporter would not allow appellate counsel or the appellate court to undertake a meaningful, independent review of the record. See In Re Order of First District Court of Appeal, 556 So.2d 1114 (Fla.1990). However, once the case is in the post-appeal stage, and it is alleged that appellate counsel was ineffective for failing to examine a complete record, it is incumbent upon petitioner to show prejudice. At a minimum, this requires the identification of specific errors that would be found in the untran-scribed or excluded portion of the record. This was recently reaffirmed by the supreme court in Henry v. State, 937 So.2d 563, 576-77 (Fla.2006). See also Thompson v. State, 759 So.2d 650 (Fla.2000); Ferguson v. Singletary, 632 So.2d 53 (Fla. 1993); Ortiz v. State, 860 So.2d 1006 (Fla. 5th DCA 2003), review denied, 880 So.2d 1212 (Fla.2004).

In our case, petitioner does not allege that any specific error occurred in the portions of the proceedings below not included in the record on appeal. It was trial counsel who decided which portions of the record were not needed. Petitioner did not complain of any errors or of an incomplete record in the Anders appeal. Finally, petitioner has since provided much of the omitted record complained of, and our examination of the record fails to reveal any appealable issue. Accordingly, we deny the petition.

PETITION DENIED.

PLEUS, C.J., GRIFFIN and TORPY, JJ., concur.

      . When the petition was initially filed, we were made aware that there was already a pending Rule 3.850 proceeding in the circuit court. We thought it would serve judicial economy not to have two collateral relief petitions running in parallel so we abated the writ proceedings in this court. More than two years have now passed and, to our knowledge, the circuit court has yet to rule on the 3.850 motion. We do know, because we have required quarterly reports for years, that multiple evidentiary hearings have been held, and the trial court is currently considering the final arguments of the parties. In retrospect, we are bound to admit that the abatement has wasted far more effort by the court and the parties than a timely decision would have done. This is by far the oldest pending case in this court; it is past time to decide it.

      . See generally Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).

      . Petitioner relies on Martone v. State, 867 So.2d 510 (Fla. 4th DCA 2004) as an appellate decision that may be in conflict with these decisions. The Fourth District court concluded in Martone that the missing portions of the record were necessary for a complete review of Martone’s convictions, and thus granted the petition alleging ineffective assistance of appellate counsel without requiring Martone to identify any specific prejudice. In that case, however, the extent and significance of the missing portions of the record were far greater than the portions of the record not transcribed here and the court may have presumed prejudice. Or, the court may have relied on direct appeal case law, rather than post-conviction case law. Henry appears to be controlling.


text:
    Daniel GARNICKI, Appellant, v. The STATE of Florida, Appellee.
    No. 06-3176.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied April 5, 2007.
    Paul J. Kneski, Miami, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Nino v. State, 937 So.2d 756 (Fla. 3d DCA 2006). We certify conflict with Isaac v. State, 911 So.2d 813 (Fla. 1st DCA 2005), review pending, No. SC05-2047 (Fla. filed Oct. 31, 2005).


text:
    A.J., Father of B.J. and B.J., Children, Appellant, v. K.A.O., Mother of B.J. and B.J., Children, Appellee.
    No. 5D06-3451.
    District Court of Appeal of Florida, Fifth District.
    Feb. 27, 2007.

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.

      No Appearance for Appellee.
   PLEUS, C.J.

The father appeals a final judgment terminating his parental rights and allowing the stepfather to adopt his two children. We note at the outset that he does not challenge the trial court’s findings regarding the grounds for termination or best interests of the children. Instead, he argues that involuntary termination of parental rights procedures under Chapter 63 of the Florida Statutes are facially unconstitutional because they fail to contain a requirement that termination be the least restrictive means of protecting the children. Alternatively, he argues that termination of his parental rights was not the least restrictive means of protecting the children in this case. We affirm.

Facts

The mother filed a petition to terminate parental rights pending a stepparent adoption under Chapter 63, Florida Statutes. The petition alleged that the father had abandoned the children, had willfully refused to pay child support, and had been sentenced to ten years in federal prison. After an adjudicatory hearing, the trial court terminated the father’s parental rights, finding that the father had abandoned the children and that he would be incarcerated for a substantial portion of the time before the children reached eighteen years of age. The court also found that termination was in the children’s best interests.

Constitutional Challenge to Chapter 63

On appeal, the father argues that Chapter 63 is unconstitutional on its face because there is no requirement that termination be the least restrictive alternative. He did not raise this argument below. Instead, he argued that the United States Constitution required the judge to consider whether termination was the least restrictive means of protecting the children. However, facial constitutional attacks and attacks involving a fundamental liberty interest, such as parental rights, may be raised for the first time on appeal. See B.C. v. Dep’t of Children & Families, 864 So.2d 486, 491 (Fla. 5th DCA 2004); In Interest of D.M., 616 So.2d 1192 (Fla. 4th DCA 1993). The de novo standard applies to reviewing facial constitutional challenges and arguments relating to lack of findings in a final order. See, e.g., Am. Fed. of Labor & Cong, of Indus. Orgs. v. Hood, 885 So.2d 373 (Fla.2004).

Neither Chapter 39 nor Chapter 63 expressly require the court to find that termination is the least restrictive means of protecting the child. Florida courts have simply added this test to Chapter 39 involuntary termination analysis as a constitutionally-mandated requirement. See In Interest of L.B.W., 863 So.2d 480, 483 (Fla. 2d DCA 2004) (citing Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991)). However, no Florida court has passed on the issue of whether the least restrictive means test is constitutionally required in a Chapter 63 involuntary termination proceeding.

In general, a court must resolve all doubts as to the validity of a statute in favor of its constitutionality, provided it can give the statute a fair construction that is consistent with the Florida and federal constitutions and with legislative intent. State v. Globe Commc’ns Corp., 648 So.2d 110, 113 (Fla.1994).

There is no meaningful distinction between a Chapter 63 involuntary termination proceeding and a Chapter 39 involuntary termination proceeding with regard to the least restrictive means test. That test springs from the idea that when the state infringes upon constitutionally-protected activity, it must do so in a narrowly-tailored manner. See Dunn v. Blumstein, 405 U.S. 330, 343, 92 S.Ct. 995, 31 L.Ed.2d 274 (1972). Although a Chapter 63 involuntary termination proceeding differs from a Chapter 39 proceeding in that the plaintiff is not the state, the end result is the same — the state, via the judicial branch, terminates a parent’s constitutionally-protected parental rights. In M.E.K. v. R.L.K., 921 So.2d 787 (Fla. 5th DCA 2006), we concluded that indigent parents have a constitutional right to counsel in involuntary termination proceedings under Chapter 63, noting that in M.L.B. v. S.L.J., 519 U.S. 102, 117 n. 8, 117 S.Ct. 555, 136 L.Ed.2d 473 (1996), the United States Supreme Court noted that whether a parental termination proceeding is brought by a state agency or a private party as a prelude to adoption, “the challenged state action remains essentially the same: imposition of an official decree extinguishing, as no power other than the State can, [the] parent-child relationships.” M.E.K at 790-91.

Because involuntary termination of parental rights proceedings under Chapters 39 and 63 both involve state infringement upon a fundamental right, we believe the least restrictive means test should apply to Chapter 63 involuntary termination proceedings as it has been applied to Chapter 39 involuntary termination proceedings.

The Instant Case

The father argues that termination cannot be the least restrictive means of protecting the children because they reside with the mother. In support of this argument, he cites numerous cases in which termination orders were reversed because the trial court failed to consider long-term relative placement. See, e.g., C.M. v. Dep’t of Children & Families, 953 So.2d 547, 2007 WL 412790 (Fla. 1st DCA Feb. 8, 2007); M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004).

However, the existence of a long-term relative placement is not the “disposi-tive constitutional consideration” in applying the least restrictive means test. Nor is the least restrictive means test intended to preserve the parental bonds at the cost of a child’s future. See, e.g., D.B. v. Dep’t of Children & Families, 940 So.2d 516 (Fla. 5th DCA 2006). Instead, this test requires that “those measures short of termination should be utilized if such measures can permit the safe reestablishment of the parent-child bond.” S.S. v. D.L., 944 So.2d 553 (Fla. 4th DCA 2007) (quoting L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1196 (Fla. 1st DCA 2002)). The “clear purpose” of the least restrictive means test is “reestablishment of the parent-child bond.” In Interest of K.W., 891 So.2d 1068, 1070 (Fla. 2d DCA 2004) (quoting M.H. v. Dep’t of Children & Families, 866 So.2d 220, 223 (Fla. 1st DCA 2004)).

In the instant case, the trial court found that there was no bond between the father and the children. He had abandoned the children and had had no contact with them since they were ages two and four. The children did not relate to him as their father. Thus, similar to the situation in In Interest of K.W., there was “little or no bond to protect and there was never a parent-child relationship to reestablish. ...” 891 So.2d at 1070. The father will be incarcerated until 2012, at which time the children will be fourteen and sixteen. They do not have contact with the father. The guardian ad litem testified, based on personally visiting the prison and interviewing numerous people, that requiring the children to visit the father would be detrimental to them. The trial court also noted a letter in the court file from the school guidance counselor which expressed the same opinion. Furthermore, the children’s stepfather has acted in every capacity as their real father and wants to adopt them. Accordingly, there was ample evidence that termination of the father’s parental rights was the least restrictive means of protecting the children.

AFFIRMED.

SAWAYA and EVANDER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Jesse ZINK, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-3644.
    District Court of Appeal of Florida, Second District.
    March 2, 2007.
    James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

Jesse Zink challenges his conviction for robbery and his sentence as a violent career criminal to thirty years in prison. We affirm Zink’s conviction without comment and write to explain why we disagree with the State’s concession of error on the sentencing issue.

Zink maintains that the trial court erred by imposing a violent career criminal sentence because the State failed to prove that he had the requisite number of prior convictions. To qualify for sentencing as a violent career criminal, a defendant must have three or more qualifying convictions. § 775.084(l)(d), Fla. Stat. (2002). Qualifying convictions can include any forcible felony, as described in section 776.08, or escape. § 775.084(l)(d)(l)(a), (f). At sentencing, the State introduced a 2003 judgment that included a conviction for robbery, two 1990 judgments with convictions for robbery and escape, and a 1987 judgment with a burglary conviction.

The 1990 judgments were entered on the same day and by the same judge, who imposed concurrent sentences. At the sentencing hearing in the instant case, defense counsel objected to the court’s treatment of these convictions as separate qualifying offenses. See § 775.084(5) (requiring sequential convictions that were “sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony” in order to impose violent career criminal sentence); see also Bover v. State, 797 So.2d 1246, 1250 (Fla. 2001) (stating that under § 775.084(5), “although the sentencing for separate convictions arising out of unrelated crimes can take place on the same day, the sentences cannot be part of the same sentencing proceeding”).

At the sentencing hearing, the prosecutor argued that the qualifying convictions did not have to be sequential. On appeal, however, the State acknowledges this requirement, and it concedes error because the 1990 judgments appear to constitute only a single qualifying conviction. In conceding that a reversal is warranted, however, the State has overlooked the 1987 burglary conviction. Under section 776.08, Florida Statutes (2002), a forcible felony includes burglary as well as robbery. See Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002) (holding that burglary is a qualifying offense for violent career criminal sentencing). Accordingly, we affirm.

Affirmed.

WHATLEY, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: PER CURIAM. ERVIN, III, RICHARD W., Senior Judge,

text:
    Raymond H. KIMBALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1683.
    District Court of Appeal of Florida, First District.
    March 2, 2007.

      Nancy A. Daniels, Public Defender, and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Raymond Kimball, challenges the trial court’s denial of his motion to suppress a quarter to a half-pound of marijuana located in the trunk of a car in which he was the passenger. We affirm.

During the evidentiary hearing on Appellant’s motion to suppress, the following facts were adduced. A sheriffs deputy stopped the car in which Appellant and a co-defendant were driving because it was traveling 78 mph in a 70 mph zone, following too closely, and, earlier that day, he received a BOLO for the car from the Florida Highway Patrol. The BOLO was based on an anonymous tip and described a 2001 Dodge Neon with a particular tag number, and advised that a large amount of ecstasy, marijuana, and a gun would be in the car.

The Deputy testified the BOLO gave no probable cause, and he stopped the car for speeding. When the car veered off the road, the deputy saw a large dog and several people inside the car moving around. He drew his gun due to the excessive movement of the passengers and the BOLO advice of a gun in the car. When he approached the vehicle, he made contact via the passenger’s side. Appellant was the front passenger. The deputy “immediately smelled the odor of raw marijuana emitting from the vehicle.” Based on his training and experience he is familiar with the smell of raw marijuana. He had made more than a thousand traffic stops in less than 18 months, and in 60% to 70% of those stops, had found drugs, and he had smelled “raw” marijuana in “well over a hundred” of those stops.

When back-up arrived, the driver was removed from the vehicle, taken into custody, and 18.2 grams of marijuana wrapped in a baggie was discovered on his person. After the driver was placed in a police car, the other occupants were removed. The deputy placed them “in handcuffs and detained them for investigation due to the strong odor of the marijuana emitting from the vehicle.”

No illegal substances were found when the officers searched the vehicle’s interior, and no contraband was found on Appellant’s person. The officers then searched the trunk. There was a strong odor of marijuana emitting from the trunk once it was opened. The officers discovered a duffel bag, a quarter to a half-pound of marijuana and MDMA, or ecstasy tablets inside the duffel bag, and a .32 caliber Smith & Wesson pistol, which was loaded, inside a locked suitcase.

The deputy testified that, before the driver was searched, the deputy did not know who may have the marijuana he smelled in the car, or where it might be located. The marijuana odor from the trunk was noted only after the trunk was opened.

In search and seizure cases, Florida courts are required to follow the United States Supreme Court’s interpretation of the Fourth Amendment. See State v. Betz, 815 So.2d 627 (Fla.2002). Probable cause exists to engage in a warrantless search where “the facts and circumstances within [the officers’] knowledge ... [are] sufficient in themselves to warrant” the belief that an offense has been or is being committed: Id. at 633 (quoting Brinegar v. United States, 338 U.S. 160, 175-76, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949)).

The scope of a warrantless search of a car is no broader or narrower than the scope of a search authorized by a warrant supported by probable cause. See United States v. Ross, 456 U.S. 798, 823, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982). The scope is defined by the object of the search and the places in which there is probable cause to believe it may be found. See id. at 824, 102 S.Ct. 2157. “If probable cause justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the vehicle and its contents that may conceal the object of the search.” Id. at 825, 102 S.Ct. 2157.

An officer’s detection of the smell of marijuana coming out of a vehicle provides probable cause to search the passenger compartment of a vehicle. See Betz, 815 So.2d at 633 (citing Ross, 456 U.S. at 825, 102 S.Ct. 2157). Marijuana found following the frisk of a vehicle occupant, combined with furtive behavior by the vehicle occupants provides probable cause to search the entire vehicle, including the trunk. See id. at 634 (citations omitted).

Here, the strong odor of “raw” marijuana coming from the vehicle when the deputy arrived at the passenger window provided probable cause to search. The fact that a search of the driver revealed only a small quantity of marijuana on his person, coupled with the “excessive” or furtive movement of the other vehicle occupants after being stopped, and the strong order of “raw” marijuana still being present, resulted in the totality of the circumstances providing probable cause for the deputy to believe additional marijuana was located in the vehicle, permitting him to search the entire vehicle, including the trunk, as it was reasonable to believe the additional marijuana could be found there. Because the deputy had probable cause to search the trunk, the trial court did not err by denying the motion to suppress. The trial court is AFFIRMED.

HAWKES and THOMAS, JJ., concur; ERVIN, III, RICHARD W., Senior Judge, dissents with opinion.

ERVIN, III, RICHARD W., Senior Judge,

dissenting.

I would reverse the order denying the motion to suppress and remand the case with directions for appellant to be discharged from custody. The majority’s opinion does not mention language in State v. Betz, 815 So.2d 627, 631 (Fla.2002), which, following United States v. Ross, 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572 (1982), limits the scope of the search only to the parts of the vehicle where the searching officers have probable cause to believe contraband is located. Thus, as later explained by the Court in California v. Acevedo, 500 U.S. 565, 580, 111 S.Ct. 1982, 114 L.Ed.2d 619 (1991), once police officers are provided reliable information that contraband has been placed in a specific area of a vehicle, their right to search does not extend beyond such confines. It is important to note that neither Ross nor Betz laid down any broad, “bright line” rules defining the extent of an officer’s search; rather, as the Betz court noted, it is “the law enforcement officer’s probable cause in each particular situation that defines the permissible magnitude of the warrantless search.” Betz, 815 So.2d at 631.

The majority approves the search in the present case under the second “factual scenario” discussed in Betz, ie., a situation in which the officer has “generalized probable cause” to believe the contraband is located somewhere inside the automobile, thereby furnishing probable cause to “search ... every part of the vehicle and its contents that may conceal the object of the search.” Ross, 456 U.S. at 825, 102 S.Ct. 2157. In my opinion, the particular facts of the present case did not authorize the sheriffs deputy the right to extend the scope of the search to the trunk of the automobile once marijuana was found on the person of the driver. The search was motivated, according to the deputy, by the odor of marijuana emanating from the interior of the car. The later search of the driver’s person produced only a small amount of marijuana. This discovery provided at most probable cause to search the interior of the car and the remaining occupants, yet, no other illegal substance was then found. At that point, I consider, based on the instructions of Ross and Acevedo, the officer’s probable cause to search further for contraband ended and could not be extended to the trunk of the car. The officer admitted he did not detect the odor of marijuana coming from inside the trunk until after it was opened. Given the narrow circumstances of this case, I cannot agree that the facts justified the generalized search which took place, and, as stated, I would reverse.