author: SALTER, J.

text:
    WEST BOCA MEDICAL CENTER, INC., etc., Appellant, v. Ruth MARZIGLIANO, Appellee.
    No. 3D06-2517.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.

      McIntosh, Sawran, Peltz & Cartaya and James C. Sawran, Fort Lauderdale and Robert C. Weill, for appellant.
    Bohannon, Rogers, Aronson & Pacella and Lawrence J. Bohannon; Diane H. Tutt, Fort Lauderdale, for appellee.
    Before COPE, RAMIREZ and SALTER, JJ.
   SALTER, J.

West Boca Medical Center, Inc. (“Hospital”) appeals three aspects of a jury verdict in favor of Ruth Marzigliano (“Marzig-liano”), a labor and delivery nurse who slipped and fell while entering a hospital room. We affirm the verdict and judgment in all respects.

We review the jury verdict and material facts supporting it in the light most favorable to Marzigliano.

Pertinent Evidence at Trial

On the day of the accident — March 16, 2001 — Marzigliano had been a nurse for over twenty years. At the time, she was a labor and delivery nurse accustomed to twelve-hour shifts and long periods of being on her feet. She was not an employee of the Hospital, but worked instead for non-party American Medical Central, Inc. (“American Medical”), a health services company. American Medical provided nursing services to the Hospital under a contract with yet another non-party.

At the time of the accident, housekeeping services in the relevant parts of the Hospital were provided by a separate company (a defaulted defendant below, Signature Service Group, Inc., (“Signature”)). In this appeal, the Hospital does not dispute that it is vicariously liable for the acts and omissions of Signature as they relate to the floor upon which Marzigliano slipped and fell. At the time of trial, the jury was instructed that the Hospital was responsible for any negligence of Signature regarding the maintenance of the floor where the injury occurred.

The evidence also established that a Hospital employee served as the head of overall housekeeping.

The accident occurred when Marzigliano entered patient room 153, marked “ready” by housekeeping on a status board at the nurses’ station, to prepare the bed and linens for the arrival of a patient. As she entered the room to reach the light switch, she slipped and fell in some water apparently left on the floor by housekeeping. There were no cones or other warning signs to indicate that the floors might still be drying.

Although her injury was originally thought to be a sprain, later evaluation disclosed a torn peritoneal tendon. The injury caused her to struggle in performing her duties as a floor nurse. She also missed work because of pain and various medical evaluations and treatment, including surgeries. By the time of trial in mid-2006, Marzigliano was continuing to suffer pain, swelling, numbness and weakness that affected her ability to work. Dr. Greenman, Marzigliano’s treating podiatrist, testified that the injury caused her ankle to become unstable and that, despite multiple surgeries and other treatments, her ankle continued to be more susceptible to re-injury. - ■

Marzigliano, age fifty-nine at time of trial, provided tax returns showing income that dropped by over $22,000 from the year before the accident to the first full year after the accident.

The Jury’s Verdict

Although the Hospital argued at trial that Marzigliano herself was partially responsible for the accident, that she had other injuries and medical problems, and that she was essentially asking for a million dollars for a sprained ankle, the jury rendered a verdict overwhelmingly in her favor. On a special interrogatory form, the jury found that the Hospital was negligent and a legal cause of injury to Marzig-liano, that Signature was negligent and a legal cause of . injury to Marzigliano, and that she herself was not negligent.

The jury ascribed one-hundred percent of the negligence involved in the injury to the Hospital, zero percent to Signature, and zero percent to Marzigliano. Past medical expenses were fixed at $202,600.26 in accordance with a stipulation between the parties. No future medical expenses were awarded on the separate interrogatory line provided to the jury for that category of damages. Past lost wages of $45,000 were awarded, as well as $360,000 in a separate line item for future lost wages. Finally, damages for past “pain and suffering, disability, physical impairment, mental anguish, inconvenience, or loss of capacity for the enjoyment of life” were separately awarded in the amount of $40,000, while the award for future damages in that non-economic category were set at zero by the jury. The Hospital’s motions for new trial, judgment notwithstanding the verdict, and remittitur were denied, and this appeal followed.

Issue One — “0%” Negligence Ascribed to Signature . . .

The Hospital first argues that it could only be liable vicariously and only for the wrongdoing of Signature as the active tortfeasor. The jury found both the Hospital and Signature to be negligent. Because the jury apportioned “0%” of the liability to Signature, the Hospital asserts that it is vicariously liable for zero percent of Marzigliano’s injury and damages. However, because Signature’s duties had been determined by the trial court to be non-delegable, the jury was given an instruction on the point. The jury was instructed that, “as a matter of law,” the Hospital was responsible for any negligence regarding the maintenance of the floor involved in the accident. The jury’s verdict finding “0%” comparative negligence on the part of Signature is entirely consistent with that instruction — the jurors apparently understood that any responsibility on the part of Signature was to be ascribed to the Hospital. Moreover, the jurors did find in their first interrogatory that the Hospital’s negligence was a legal cause of injury to Marzigliano. There was sufficient evidence to establish that an employee of the Hospital had overall supervisory responsibility for housekeeping.

Finally, an alleged inconsistency in the form of the verdict — of the kind claimed here — must be raised before the jury is discharged. This would have allowed the trial court to rule on the alleged inconsistency, and the jury could then have corrected the verdict. Deklyen v. Truckers World, Inc., 867 So.2d 1264, 1266 (Fla. 5th DCA 2004).

Issue Two — “Fundamental Inconsistency’’

The Hospital next argues that two inconsistencies in the jury’s verdict are so fundamental that a new trial is required. The first alleged inconsistency is the finding of negligence by Signature despite the allocation of “0% fault” to Signature in a separate interrogatory. The Hospital argues that the entry of a default against Signature required the jury “by law” to attribute at least one percent fault against Signature. There is no indication that any such attribution or allocation would produce a different outcome, however, because the Hospital accepted one-hundred percent vicarious liability for the pertinent acts and omissions of Signature. This alleged shortcoming is harmless, and it also fails for the reasons set forth in the analysis of the Hospital’s first issue.

The Hospital asserts that the verdict form is also fatally inconsistent because it awarded Marzigliano $360,000 for lost earning capacity but nothing for future medical expenses or for future pain and suffering, disability, or physical impairment.

In a series of cases, however, this Court has declined to order a new trial or to remand for a reallocation of the various components of damage unless the verdict taken as a whole is grossly excessive or contrary to the manifest weight of the evidence. “The manner in which the jury itself allocated the awards to the various elements of damages made no legal difference to the bottom line — the clearly sustainable gross amount which the defendant must pay the plaintiff for the injuries it caused.” Delva v. Value RenP-A-Car, 693 So.2d 574, 577 (Fla. 3d DCA 1997).

In this case, the jury might have awarded hundreds of thousands of dollars for future pain and suffering if the alleged inconsistency had been raised and the jurors had then reduced the “future lost wages” component. The total monetary amount awarded Marzigliano is not, “so large that it indicates the jury must have been under the influence of passion, prejudice, or gross mistake.” Pierard v. Aerospatiale Helicopter Corp., 689 So.2d 1099, 1101 (Fla. 3d DCA 1997), citing Phillips v. Ostrer, 481 So.2d 1241, 1246 (Fla. 3d DCA 1985).

Issue Three — Evidence Regarding Loss of Future Earning Capacity

The Hospital correctly asserts that damages for loss of future earning capacity must be based on competent substantial evidence. In this case, the jurors reviewed tax returns indicating that Mar-zigliano’s wage income dropped over $22,000 from 2000 (the year preceding the injury) to 2002 (her first full year of work after the injury). Her income in her last full year of work before the accident was $56,550, and the evidence showed that she was a fifty-nine year-old nurse hoping to work another eight years, but with significant on-the-job pain and impairment, and with a substantial prospect for re-injury if she continued to work as before. The jury may have intended to base its award on the demonstrated losses after the accident (but projected for a term longer than eight years), or it may have decided that Mar-zigliano should not work because of the risk of further injury, reducing eight years of lost future earning capacity to present value. The “reasonable certainty” rule for the calculation of damages does not require mathematical precision, and such an award by the jury will not be disturbed if supported, as here, by substantial competent evidence. A purported award of lost future earning capacity that is not supported by such evidence, in contrast, will be reversed. Miami-Dade County v. Cardoso, 963 So.2d 825, 829 (Fla. 3d DCA 2007).

We therefore affirm the jury’s verdict for Marzigliano and the trial court’s denial of the Hospital’s post-trial motions in all respects.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William KING, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2037.
    District Court of Appeal of Florida, Third District.
    Sept. 12, 2007.
    William King, in proper person.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

While this appeal from the denial of a petition for writ of habeas corpus was pending, the appellant and the state entered into a plea agreement under which the appellant pled nolo contendere to the three pertinent criminal cases in exchange for a stipulated prison sentence and credit for time served. Because the agreement specifically waived the appellant’s right to appeal on the grounds now asserted, the appeal is dismissed as moot. See Godwin v. State, 593 So.2d 211, 212 (Fla.1992); Alexander v. Judd, 930 So.2d 847, 848 (Fla. 2d DCA 2006); Scott v. State, 866 So.2d 213, 214 (Fla. 3d DCA 2004); see also Carlin v. State, 939 So.2d 245, 247 (Fla. 1st DCA 2006).


text:
    STATE of Florida, Appellant, v. Zachary GARNER, Appellee.
    No. 4D06-3945.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See State v. Wells, No. 4D06-3425, 965 So.2d 834, 2007 WL 2609461 (Fla. 4th DCA Sept. 12, 2007)(holding Florida Statutes section 316.191 (2005) facially unconstitutional).

GUNTHER, WARNER and GROSS, JJ., concur.


author: WARNER, J.

text:
    Milton Mack MITCHELL, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2153.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Rehearing Denied Oct. 26, 2007.

      Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   WARNER, J.

Appellant, Milton Mack Mitchell, Sr., appeals his convictions for first-degree murder and possession of a firearm by a convicted felon. He raises four issues, none of which require reversal. First, he claims that the court erred in refusing to admit a statement of a deceased witness as an excited utterance, but that issue was not preserved. Second, he sought to admit the dying declaration of a witness to the murder, which Mitchell claims was an exoneration, but the court properly excluded it as hearsay. Third, the court correctly excluded “expert” testimony that the defendant could have considered himself under attack at the time of the murder, as the subject was not beyond the jury’s common experience. Finally, Mitchell’s claim that he was entitled to a self-defense instruction has been decided adverse to his position in Smiley v. State, 966 So.2d 330, 2007 WL 1628111 (Fla. June 7, 2007). We affirm.

It is uncontested that Mitchell shot Henry Wilson to death. Mitchell maintained that he acted in self-defense, after a history of incidents of harassment by Wilson and his friends.

On the day of the murder, Mitchell had purchased crack cocaine from Wilson’s brother, Virgil Dixon, but Mitchell claimed it was fake and wanted his money back. He went with his friend, Alma Wright, to talk with Dixon and Wilson’s mother, Betty Dixon, who was at her daughter’s house. Ms. Dixon offered to pay him back, but he wanted the money from Dixon. He then left and went home. Ms. Dixon could tell Mitchell was angry and had been drinking.

Later that day, Wright came by to say that “Papa” (Henry Wilson) had showed up, and she thought there was going to be trouble. Mitchell armed himself with a gun and went outside to confront Wilson. The two argued for five or ten minutes in the presence of Wilson’s cousin, Javier Williams, who heard Mitchell say, “I’m going to kill somebody or somebody going to kill me.” Then Mitchell left.

Shortly thereafter, Mitchell returned and Wilson spotted Mitchell in the bushes across from where Wilson and Williams were sitting. Wilson called for Mitchell to get up. Williams saw Mitchell shoot one time before he came out of the bushes and asked where Virgil was. Mitchell and Wilson began to argue again and Mitchell shot him in the shoulder with a .22 caliber gun. Wilson tried to pull Mitchell towards him, to keep Mitchell from shooting again. Mitchell shot one more time and Wilson fell against the wall. Wilson ran towards the corner, where he fell. When rescue personnel arrived, they pronounced Wilson dead at the scene. Williams never saw Wilson point a firearm at Mitchell or do anything to provoke Mitchell. Several other witnesses testified, essentially confirming many of the same details of the day.

Mitchell testified in his defense and provided a substantially different version of events. According to Mitchell, he was outside, heard a gunshot, and walked to the end of the building where he saw Javier Williams. Williams yelled a profanity noting his presence. He believed that he was being pursued by a gang which included Wilson and Williams. Mitchell started to run but when he saw a car that he believed contained members of the gang, Mitchell dropped to the ground and took cover. Shortly thereafter, he saw Henry Wilson, Freddie Daniels, Martez Daniels, and Javier Williams. Mitchell heard a gunshot, which he assumed was fired by Wilson, and then heard someone call to him. Mitchell stood up, realizing that he had been seen.

As Mitchell walked out across the street towards his room, Wilson blocked his path. Wilson confronted him about the dispute with his brother. Wilson swung at him, and Mitchell heard someone say, “Kill that n.... ” Mitchell saw Wilson grab something silver from his pants, which Mitchell thought was a gun. Mitchell grabbed his gun and shot one time. Wilson fell against the wall and then came forward, pushing at him, but Wilson’s hand was still in his pocket. Mitchell fired a second time. He maintained that he fired the two shots from his weapon in self-defense, not intending to kill anybody, because he was in fear for his life and was trying to stop the attack.

The jury found Mitchell guilty as charged, including a charge of possession of a firearm by a convicted felon. The court sentenced Mitchell to life without possibility of parole for the first-degree murder charge and fifteen years as a habitual offender for possession of a firearm. This appeal follows.

In his first issue on appeal, Mitchell claims that the court erred in refusing to admit the testimony of one of his witnesses, Frankie Neal. Prior to trial, the defense proffered that Neal heard Freddie Daniels, a member of the gang that included victim Wilson, ask Wilson, “What are you shooting in the bushes for?” The victim responded that he was shooting at Mitchell to bring him out of the bushes. Defense argued that this statement constituted a spontaneous declaration or an excited utterance. Initially, the court considered it as offered to prove the truth of the matter.

However, the transcript shows that the court actually reserved ruling on the issue of what testimony would be admitted. When confronted with the issue, the court said, “Right. Mr. Frankie Neal, I’m reserving on the issue of Frankie Neal testifying to what he heard Freddie Daniels say he did, not what Mr. Wilson said.” (emphasis supplied).

When Eddie Neal, Frankie’s brother, testified, the defense sought to proffer a statement made by Freddie Daniels. The following exchange took place:

THE COURT: Frankie Neal reserved to testify what Mr. Daniels said that he didn’t — that he did and saw. Was it— was it your mistake that it wasn’t Frankie Neal, that it was Ed Neal?
MR. UDELL: Either way, Judge, I’m asking for the opportunity at this time, I want to offer the evidence and have additional testimony to support the offering of the evidence.

Eddie Neal then testified through proffer of statements Freddie Daniels made several days after the shooting. He did not testify to any question Daniels may have asked on the day of the shooting. The court refused to admit these statements.

When Frankie Neal testified, he explained that he heard gunshots while in his room which was next to Mitchell’s room. The shots woke him up. He put on his shoes and stepped outside to see what was going on. Neal walked down the sidewalk of the apartment complex. Once he got to the end of the building, he stood there for a minute or so trying to figure out what was going on concerning the gunshots. He then noticed Freddie Daniels in the area approaching Wilson. Neal began to testify that Daniels asked Wilson “why did he shoot,” when the prosecutor cut him off with an objection. The court asked if it had not ruled on this issue, but the defense attorney said that he was trying to elicit Wilson’s statement, not Daniels’s question.

Counsel never proffered Neal’s testimony as to Daniels’s question to Wilson on the day of the shooting, nor did counsel request its admission. Instead, Neal testified to Wilson’s statement. Although the prosecutor objected to this statement, the court overruled the objection. Neal then testified that as he was standing there, he heard Wilson say, in response to a question posed by Daniels, “[expletive deleted] Milton is out there in those bushes,” and that “[h]e better bring his ass out.”

When examining the entire record, this issue of the admission of Daniels’s question to Wilson was not preserved for review. The court reserved on the issue, and counsel never proffered the statement, nor again moved for its admission. While we do not necessarily understand why the court would have permitted the admission of Wilson’s answer and not the question by Daniels (either both are admissible as excited utterances/spontaneous statements or neither is), nevertheless the defense did not renew its request for its admission.

The trial court must evaluate the evidence and surrounding circumstances to determine whether a statement may qualify as an.excited utterance or spontaneous statement. Section 90.803(1) provides an exception to the hearsay rule for a “spontaneous statement describing or explaining an event or condition made while the de-clarant was perceiving the event or condition, or immediately thereafter, except when such statement is made under circumstances that indicate its lack of trustworthiness.” Similarly, section 90.803(2) allows for the admission of “[a] statement or excited utterance relating to a startling event or condition made while the declar-ant was under the stress of excitement caused by the event or condition.”

Most questions or inquiries are not hearsay. Powell v. State, 714 N.E.2d 624, 628 (Ind.1999). However, an utterance that is in the form of a question can in substance contain an assertion of fact, such as the question, “Joe, why did you stab Bill?” Id. Such an utterance clearly carries a factual allegation within it, and should be subject to cross-examination unless exempt for some other reason. Id. The question in this case contained an assertion of fact, namely that Wilson had shot into the bushes. Whether Wilson shot at Mitchell first was an important factual issue in the case.

The trial court needed to analyze the entire scenario in order to determine if the statement was admissible. Neal’s testimony indicates a delay between the first shots being fired and Daniels’s question. Neal had time to arise from his sleep, get dressed, exit his room, go around the corner, stop for a few minutes to collect himself, and then he heard Daniels’s question. The trial testimony, however, is sometimes hard to follow, and that is why the trial court in the first instance must determine whether the criteria for admitting the statement as an excited utterance or spontaneous declaration have been met. Because the court reserved on the issue and was not later requested to rule, the matter is not preserved.

A couple of hours after the shooting Freddie Daniels made a statement to several people, including Eddie Neal, that Wilson shot into the bushes first, and then Mitchell shot at Wilson. About a year later Daniels allegedly told other witnesses that he had been offered leniency in his own criminal case if he would lie in the Mitchell case, for which he was very sorry. Unfortunately, Freddie Daniels died just a few days after making this statement. The defense sought to admit these statements of “exoneration.” Neither, however, could be considered within the limited exception for dying declarations.

Section 90.804(2)(b) establishes a “dying declaration” exception to the general rule excluding hearsay:

Statement under belief of impending death. — In a civil or criminal trial, a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.

(emphasis supplied). Here, none of the statements sought to be introduced concerned the physical cause or instrumentalities of Freddie Daniels’s death or the circumstances surrounding his impending death. In fact, as the trial court noted, some of the statements were made more than one year before the declarant’s death, with no indication that they were made while the declarant reasonably believed that his death was imminent. The statements did not qualify as dying declarations. See Castle v. State, 305 So.2d 794 (Fla. 4th DCA 1974).

To further support his claim of self-defense, Mitchell sought to introduce the testimony of a mental health expert, whom the court had appointed to give Mitchell a competency examination. Dr. Steven Ed-ney found Mitchell competent and legally sane at the time of the incident. His report also noted:

Based on the information he provided during the present examination, it would appear that [his] actions were not premeditated. That is, his actions were the result of self defense as he perceived that his life was in significant and immediate danger. His perceptions are consistent with his having a reasonable belief in the imminence of bodily harm/ death and he therefore reacted in a manner similar to how other individuals in that situation could reasonably be expected to react. Again, it is documented that Mr. Mitchell suffered harassment and aggression from the individuals involved in this incident over a significant period of time, instilling an overall feeling of fear/anxiety in him. Moreover, by his account, he was unable to avoid the conflict and was forced to use aggression to avoid what he perceived as an imminent threat to his life.
[I]t is apparent that Mr. Mitchell experienced abuse/harassment from the individuals involved in this incident and as a result, suffered from heightened fear/anxiety and a higher level of vigilance. It is within reasonable psychological certainty that Mr. Mitchell’s actions are consistent with his having had a reasonable belief in the imminence of bodily harm and in the necessity of using force to defend his own life.

The defense sought to present this testimony from Dr. Edney at trial, particularly his conclusion that Mitchell was acting in self-defense. The state objected on the grounds that Dr. Edney would not be testifying to Mitchell’s competency or sanity. The state, relying on Lott v. State, 695 So.2d 1239 (Fla.1997), maintained that Dr. Edney’s testimony should not be admitted because it was based on self-serving exculpatory hearsay. The court agreed, finding that the doctor would be offering a conclusion on an ultimate issue of fact based solely on Mitchell’s self-serving statements to him.

There are four requirements for deciding the admissibility of expert testimony:

(1) that the opinion evidence be helpful to the trier of fact; (2) that the witness be qualified as an expert; (3) that the opinion evidence can be applied to evidence offered at trial; and (4) that evidence, although technically relevant, must not present a substantial danger of unfair prejudice that outweighs its probative value.

Anderson v. State, 786 So.2d 6, 8 (Fla. 4th DCA 2000) (quoting Holiday Inns, Inc. v. Shelburne, 576 So.2d 322, 335 (Fla. 4th DCA 1991)) (footnote omitted). In order to be helpful to the trier of fact, expert testimony must concern a subject which is beyond the common understanding of the average person. State v. Nieto, 761 So.2d 467, 468 (Fla. 3d DCA 2000). Expert testimony should be excluded where the facts testified to are of such a nature as not to require any special knowledge or experience in order for the jury to form conclusions from the facts. Johnson v. State, 393 So.2d 1069, 1072 (Fla.1980).

Dr. Edney’s proffered testimony boils down to a statement that, based upon what Mitchell told him, Mitchell reasonably believed that he had to defend himself or be killed. There is nothing in his testimony which concerns a subject beyond the common understanding of the average person. If the jury believed Mitchell, then it would find that he acted in self-defense. Thus, the issue is not one on which expert testimony should be permitted. It merely allowed an expert witness to bolster Mitchell’s credibility which is improper. Acosta v. State, 798 So.2d 809, 810 (Fla. 4th DCA 2001). And it improperly introduces Mitchell’s self-serving statements which are otherwise inadmissible hearsay. See Lott v. State, 695 So.2d 1239, 1243 (Fla. 1997).

Finally, Mitchell sought to have the jury instructed in accordance with section 776.013, effective October 1, 2005, which provides for an expanded right of self-defense: § 776.013(3), Fla. Stat. The court denied the request, relying on State v. Smiley, 927 So.2d 1000 (Fla. 4th DCA 2006), where this court held that the expanded right of self-defense could not be applied retroactively to crimes committed prior to its passage. Our supreme court has approved Smiley and held that section 776.013 does not apply to cases pending at the time the statute became effective. See Smiley v. State, 966 So.2d 330, 2007 WL 1628111 (Fla. June 7, 2007). Therefore, the defense was not entitled to the requested jury instruction.

A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.

For the foregoing reasons, we affirm appellant’s conviction and sentence.

SHAHOOD, C.J., and STEVENSON, J., concur.

      . The homicide was committed on February 25, 2003. The trial in this case was held from April 17 through April 20, 2006.


author: POLEN, J.

text:
    Kenneth KITCHEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3237.
    District Court of Appeal of Florida, Fourth District.
    Sept. 12, 2007.
    Rehearing Denied Oct. 25, 2007.

      Loren D. Rhoton of Loren Rhoton, P.A., Tampa, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Claudine M. LaFrance, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant, Kenneth Kitchen, appeals a final order finding him guilty of one count of grand theft of a motor vehicle and one count of high speed or wanton fleeing. The theft occurred in St. Lucie County and the high speed chase began in St. Lucie County and continued into Indian River County. The case was tried in St. Lucie County. Kitchen argues the trial court erred in denying his motion for judgment of acquittal, asserting that venue for the charge of fleeing and/or eluding lay in Indian River County rather than St. Lucie County, as he did not become aware that the police were chasing him until he crossed into Indian River County. Kitchen also argues that County Court Judge Katherine Nelson, who took over the case from another judge, did not have jurisdiction to hear his case as no administrative order was ever filed giving her jurisdiction. We find Kitchen’s arguments unpersuasive and affirm the trial court’s holding, but write to address his contentions.

“If the acts' constituting one offense are committed in two or more counties, the offender may be tried in any county in which any of the acts occurred.” § 910.05, Fla. Stat. “Appellate review is confined ■ to issues decided adversely to appellánt’s position, or issues that were preserved with a sufficiently specific objection below.” Clear Channel Comme’ns, Inc. v. City of North Bay Village, 911 So.2d 188, 189-90 (Fla. 3d DCA 2005). Kitchen did not raise this issue below, and in fact, defense counsel affirmatively agreed there was no objection to the case being tried in St. Lucie County.

We find that defense counsel’s explicit acceptance of the trial’s location in St. Lucie County constituted an express waiver of the issue, precluding Kitchen from raising the issue on appeal. Where crimes occur in two counties, a defendant can waive an objection to a venue issue by agreeing to a trial of all issues in one county. McClellion v. State, 858 So.2d 379, 382 (Fla. 4th DCA 2003). In McClel-lion, the evidence showed that some of the crimes charged took place entirely in one county and others took place in an entirely separate county. Id. at 380. The original information 'correctly named the two counties in which the crimes took place. Id. However, after the defendant entered his not guilty plea, the State amended the information to state that all crimes took place in the same county. Id. At the close of the State’s evidence, the defendant moved, for judgment of acquittal, asserting lack of proof of venue. Id. at 380-81. This court quoted Article I, section 16 of the Florida Constitution, which states:

In all criminal prosecutions the accused shall ..:. have a speedy and public trial by impartial jury in the county where the crime was committed. If the county is not known, the indictment or information may charge venue in two or more counties conjunctively and proof that the crime was committed in that area shall be sufficient; but before pleading the accused may elect in which of those counties the trial will take place.

McClellion, 858 So.2d at 881. As the State failed to be forthright in showing the crimes occurred in two separate counties, this court reversed the trial court’s ruling, Id. at 382.

In this case, the information clearly stated that the crimes charged took place “in St. Lucie or Indian River County,” and defense counsel agreed there was no objection to the case being tried in St. Lucie County. We find the information in this case was straightforward and as Kitchen agreed that all crimes could be tried in St. Lucie County, any venue issues were waived.

Kitchen next argues that Judge Katherine Nelson, the trial judge who took over his case from another judge, did not have jurisdiction to hear his case as no administrative order was ever filed giving her jurisdiction. Judge Nelson was a county court judge with the authority to hear misdemeanor cases. William Roby, Chief Judge of the 19th Judicial Circuit, signed an order assigning Nelson to the 19th Circuit Court, beginning on January 1, 2006 and ending on June 30, 2006. As part of this assignment, Judge Nelson was to hear felony cases on a case by case basis. Chief Judge Roby signed another order extending this time frame until December 31, 2006. While these orders were signed on December 21, 2005 and June 6, 2006 respectively, they were not filed until February 15, 2007. Kitchen’s case was originally before Judge James McCann, but was set for trial with Judge Nelson. There is no specific order assigning Judge Nelson to Kitchen’s case.

The Florida Supreme Court has jurisdiction to review judicial assignments. Wild v. Dozier, 672 So.2d 16, 17 (Fla.1996).

Article V, section 2(b) gives the Chief Justice of this Court, as the chief administrative officer of the judicial system, power to assign justices or judges to temporary duty in any court for which the judge is qualified and to delegate that power to the chief judges of the judicial circuits.

Id.

[A] litigant who is affected by a judicial assignment made by a chief judge of a judicial circuit must challenge the assignment in the trial court and then seek review in this Court by way of petition for writ of prohibition or petition for relief under the “all writs” power.

Id. at 18.

In this case, Kitchen is not challenging Chief Judge Roby’s ability to assign Judge Nelson to hear circuit court cases, but is challenging whether the assignment was ever made, as there is no evidence that the orders assigning Judge Nelson to the circuit court were filed. This court has the authority to review whether an administrative order is still in effect, as this question was different than whether an assignment was valid. See Diaz v. State, 868 So.2d 1281, 1282 (Fla. 4th DCA 2004).

We find that Kitchen’s argument regarding jurisdiction fails. “Jurisdiction is determined by the court, not the judge.” McNealy v. State, 549 So.2d 248, 250 (Fla. 5th DCA 1989). While it appears from the record that the administrative order signed by Chief Judge Roby was not filed until after Kitchen’s case was heard, this does not remove jurisdiction from the court. “A technical flaw in assignment [of a judge] does not strip a circuit court of subject matter jurisdiction over a cause which is expressly conferred by law.” Id.

Moreover, even if the administrative order was not properly entered, due to failure to record it prior to Kitchen’s trial, Florida courts recognize the de facto judge doctrine. “A de facto judge functions under color of authority even though that judge’s actual authority suffers from some procedural defect ... A de facto judge’s acts are valid.” Pierre v. State, 821 So.2d 1174, 1176 (Fla. 3d DCA 2002). Further, Kitchen failed to preserve this argument for appeal as he made no objection below. “An objection to a de facto judge’s authority to serve must be timely made.” Id. See also McNealy, 549 So.2d at 250 (failure to timely object to the administrative lapse constitutes a waiver of the issue.)

We affirm.

STONE and GROSS, JJ., concur.


author: BENTON, J.

text:
    John TODD and Katina Todd, his wife, Appellants, v. Marvin JOHNSON, M.D., Appellee.
    No. 1D06-6135.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.

      Steve A. Rothenburg, Ocala and Jeffrey L. Meldon of Jeffrey Meldon & Associates, P.A., Gainesville, for Appellants.
    Marynelle Hardee, Gainesville, D. Andrew Vloedman, Gainesville, and John E. Maines, IV, Lake Butler, for Appellee.
   BENTON, J.

John and Katina Todd appeal the final judgment dismissing their second amended complaint, which alleges medical malpractice on the part of Marvin Johnson, M.D. The trial court granted Dr. Johnson’s motion to dismiss the complaint on grounds the complaint was time barred, because it failed “to allege facts constituting fraud, concealment or intentional misrepresentation which prevented the Plaintiff[s] from discovering injury which would extend the statute of limitations [sic] beyond four years.” See § 95.11(4)(b), Fla. Stat. (2004). We reverse.

“Whether a complaint should be dismissed is a question of law.” City of Gainesville v. State, Dep’t of Trnsp., 778 So.2d 519, 522 (Fla. 1st DCA 2001). “As the factual foundation for its ruling on a motion to dismiss a complaint ..., a court may consider only the factual allegations set forth in the complaint, must accept those allegations as true, and must resolve in the plaintiffs favor all inferences that might be drawn from those allegations.” Mosby v. Harrell, 909 So.2d 323, 326 (Fla. 1st DCA 2005). “The propriety of the trial court’s dismissal is a pure question of law as to which our standard of review is de novo.” Sumner v. Gros, 958 So.2d 1038, 1039 (Fla. 1st DCA 2007). See also Exe-cu-Tech Bus. Sys., Inc. v. New Oji Paper Co. Ltd., 752 So.2d 582, 584 (Fla.2000) (“A trial court’s ruling on a motion to dismiss based on a question of law is subject to de novo review.”); Rudloe v. Karl, 899 So.2d 1161, 1162 (Fla. 1st DCA 2005). On appeal, “[o]ur review must also treat all well-pleaded allegations as true, and limit itself to the four corners of the complaint.” Sumner, 958 So.2d at 1039; see also Gowan v. Bay County, 744 So.2d 1136, 1138 (Fla. 1st DCA 1999).

The second amended complaint' — the complaint at issue here — alleged that, when Mr. Todd applied for social security disability benefits, he was “instructed” in the course of ascertaining his eligibility for benefits to go to Gainesville Radiology Group for a chest x-ray on October 4, 2000; was furnished written notice that his evaluation would not include any medical care; and signed a form authorizing the release of x-ray results to Dr. Johnson, whom he identified as his physician.

When an x-ray revealed a two-centimeter mass in Mr. Todd’s lung “suspicious for malignancy,” the complaint alleged, a radiologist called Dr. Johnson’s office. According to the complaint, a notation in Mr. Todd’s medical record at Dr. Johnson’s office reads: “Dr. Johnson, Dr. Alderman from N.F. Radiology wants you to call her concerning John C. Todd.” Below this, in different handwriting, allegedly appears: “Order x-ray that showed mass in lung.” But, the complaint alleges, Dr. Johnson did not at that time contact Mr. Todd or let him know what the x-ray depicted; and Mr. Todd remained unaware of the x-ray findings for approximately three and a half years as a result. Only on or about July 23, 2004, according to the complaint, when Mr. Todd came to him for treatment for a persistent cough, did Dr. Johnson inform him that the chest x-ray taken October 4, 2000, revealed a mass on the lung. The complaint further alleges that a subsequent biopsy of the lung tumor conclusively established that it was malignant, and that the cancer was then at stage four.

The Todds filed them original complaint on January 17, 2006, within two years of learning of Dr. Johnson’s original failure to apprise them of the portentous x-ray, but more than four (and less than seven) years after Dr. Johnson had, they alleged, learned (or should be deemed to have known) of the x-ray himself. The complaint alleged injury on the theory that Dr. Johnson concealed a medical condition that required immediate attention, and deteriorated for want of treatment. The Todds argued below, as they argue here, that Dr. Johnson’s failure to tell them about the x-ray amounted not only to actionable malpractice, but also to “concealment” that tolled the limitations period and extended the repose period. See Mangoni v. Tem-kin, 679 So.2d 1286, 1287 (Fla. 4th DCA 1996) (holding that nondisclosure may both be actionable itself and operate to “extend the statute of repose”).

Whether the filing was timely turns on whether “it can be shown [or, at this stage of the proceedings, has been adequately-pleaded] that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury.” § 95.11(4)(b), Fla. Stat. (2004). The Todds alleged concealment, but the trial court dismissed the complaint, ruling that it failed to allege sufficient facts to constitute “concealment,” within the meaning of section 95.11(4)(b), Florida Statutes (2004). In doing so, the trial court purportedly relied on the authority of Nehme v. Smithkline Beecham Clinical Labs., 863 So.2d 201, 203 (Fla. 2003), even though Nehme can be read as holding merely that the statutory term “concealment” does not “encompass negligent diagnosis by a medical provider.” Id. at 209.

There are, to be sure, similarities between the facts in the present case and the facts of the Nehme case, which the supreme court set out in some detail, as follows:

On May 23,1994, thirty-year-old Rhonda Nehme had a gynecological examination and pap smear at the Volusia County Public Health Department. The slide of the pap smear was delivered to Smith-kline Beecham Clinical Laboratories, Inc. Smithkline then sent the slide to Shutze & Techman, P.A., the predecessor corporation of Premiere Medical Laboratories, P.A., for interpretation. In a June 1994 report, a cytotechnologist at Shutze & Techman interpreted the slide as “normal” and “within normal limits.” Because the slide was interpreted as normal, no other cytologist or pathologist reviewed it, nor was the slide chosen for a random oversight review. Later expert testimony revealed that the interpretation was “egregious” and that the cytopathological evidence of malignancy was as “big as a house.” Mrs. Nehme was diagnosed with cervical cancer in February 1997, of which she died in December 1997.
In September 1999, over five years after the pap smear report, petitioner Naji Nehme filed a medical malpractice and wrongful death complaint alleging that the cytotechnologist had misinterpreted the pap smear and that a proper interpretation would have revealed the existence of the malignancy. The petitioner sought damages on behalf of the estate, himself, and the Nehmes’ six minor children. The respondents Smithkline, Premier, and Dr. Shutze moved for summary judgment, arguing that the case was barred by the four-year statute of repose as set forth in section 95.11(4)(b), Florida Statutes, which requires that any medical malpractice action be commenced no later than four years from the date of the incident or occurrence. The trial court granted summary judgment in favor of the respondents.

Id. at 203. Here, as in Nehme, the act giving rise to the negligence action is the act (nondisclosure) on which the plaintiffs rely to extend the period of repose.

The Todds’ complaint does not, however, allege ignorance of the kind that afflicted the medical providers in the Nehme case, where none of them initially understood the significance of Mrs. Nehme’s Pap smear. This lack of understanding was central to the analysis: The Nehme opinion teaches that there can be no concealment within the meaning of the statute without knowledge on the tortfeasor’s part of what is being concealed. The supreme court found this inherent in the word “concealment,” and cited dictionary definitions that support this view:

To extend the repose period, the statute requires that “concealment” prevent “the discovery of the injury.” “Conceal” is defined as (1) to prevent disclosure or recognition of; and (2) to place out of sight. Merriam Webster’s Collegiate Dictionary 238 (10th ed.1994). More specifically, “concealment” is defined as (1) the act of refraining from disclosure; esp. an act by which one prevents or hinders the discovery of something; and (2) the act of removing from sight or notice; hiding. Black’s Law Dictionary 282 (7th ed.1999). Under these definitions, concealment connotes knowledge.

Id. at 205 (emphasis added). The Nehme court discussed Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), superseded by statute, Ch. 75-9, § 7, at 20-21, Laws of Fla. See Nehme, 863 So.2d at 207 (“Nardone holds that a doctor has a duty to disclose an adverse condition that is known or is readily available through efficient diagnosis.”). The Nehme court distinguished Nardone on grounds Nardone was based on a prior version of the statute, saying that, while Nardone’s “‘efficient diagnosis’ language is predicated on the doctor’s ‘knowledge of the fact of the wrong done to the patient,’ ” id., the statute’s subsequent amendment required fuller knowledge and a different analysis because “[o]ne cannot conceal what one does not know.” Id.

Here appellants do not allege that Dr. Johnson concealed what he did not know. The complaint alleges that “he concealed the fact that Mr. Todd’s chest x-ray showed a malignant two centimeter mass on October 4, 2000,” not that he was unaware of the malignancy or its significance. There was no finding in Nehme (which was decided on motion for summary judgment) that the medical providers who had examined Mrs. Nehme’s slides realized they showed that she was dying, but did not bother to tell her. The Nehme court’s teaching that “negligent diagnosis, without more, does not constitute concealment,” id. at 205, is inapposite in the present case, where no misdiagnosis (nor any “negligent diagnosis”) is alleged.

The Todds’ theory is that Dr. Johnson was under a duty to share vitally important information with Mr. Todd, just as the surgeon (and others) in Bryant v. Adventist Health Sys. Sunbelt, Inc., 869 So.2d 681, 682-88 (Fla. 5th DCA 2004), were alleged to have been under a duty to make operative notes documenting (and so disclosing) surgical complications. The Todds’ complaint alleges that “[o]n or about October 4, 2000[,] and every[]day thereafter until July 23, 2004, Dr. Marvin Johnson concealed from Mr. Todd the fact that Mr. Todd had been diagnosed with a 2 cm mass in his lung that was suspicious for malignancy.” If the Todds can prove these allegations, the statutory repose period is extended. See Vause v. Bay Med. Ctr., 687 So.2d 258, 261 (Fla. 1st DCA 1996) (en banc) (“Even a relatively straightforward affirmative defense, such as one based upon the statute of [repose], is not a basis for dismissal unless the complaint affirmatively and clearly shows the conclusive applicability of the defense.”).

Dr. Johnson also argues, invoking the “tipsy coachman rule,” that the judgment should be affirmed because a physician-patient relationship was not adequately alleged. See, e.g., Dade County Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644 (Fla.1999) (“[I]f a trial court reaches the right result, but for the wrong reasons, it will be upheld if there is any basis which would support the judgment in the record.”). The complaint alleges that Mr. Todd had no other doctor from January of 2000 onward, and considered Dr. Johnson his only physician during that period. The. complaint did not allege that Dr. Johnson advised either the radiologist or Mr. Todd himself that he did not consider Mr. Todd his patient. The complaint does allege that Mr. Todd informed the social security evaluators that Dr. Johnson was his physician and that notes in Dr. Johnson’s file about the call from the radiologist implied that people in Dr. Johnson’s office, if not Dr. Johnson himself, viewed Mr. Todd as a patient. The complaint does not fail to plead a physician-patient relationship.

Reversed and remanded.

PADOVANO and THOMAS, JJ., concur.

      . Section 95.11(4)(b), Florida Statutes (2004), provides:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. An "action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred, except that this 7-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday. This paragraph shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.
      Section 95.11 (4)(b) is both a statute of limitations and a statute of repose. Judge Ervin explained the difference in his dissent in Doe v. Shands Teaching Hosp. & Clinics, Inc., 614 So.2d 1170, 1174 n. 2 (Fla. 1st DCA 1993):
      A statute of repose precludes a right of action after a specified time, which is measured from the sale of a product, the completion of improvements to real property, or an incident of medical malpractice. Its effect is to cut off a right of action regardless of the time of its accrual or the time of a plaintiff's notice of the invasion of a legal right. University of Miami v. Bogorff, 583 So.2d 1000, 1003 (Fla.1991); Melendez v. Dreis & Krump Mfg. Co., 515 So.2d 735, 736 (Fla.1987). A statute of limitation, in contrast, sets a time limitation within which an action must be brought, which begins to run at the time an injury occurs or is discovered. Bauld v. J.A. Jones Constr. Co., 357 So.2d 401, 402 (Fla.1978).

      . The second amended complaint alleged:
      10. On June 7, 2000, Mr. Todd applied for social security disability income benefits. As part of the application he signed medical authorizations directed at Dr. Marvin Johnson, as Mr. Todd considered Dr. Johnson to be his doctor.
      11. Also, as part of his social security disability income application, Mr. Todd was instructed by the Social Security Administration to have a chest x-ray taken at Gainesville Radiology Group.
      12. The records created by the Social Security Administration in a letter dated July 13, 2000 state that:
      “After the examination or tests are completed, we will be glad to send a copy of the report to your doctor if you give us your permission.”
      13. The records created by the Social Security Administration also state that:

        "No treatment will be given.” (Emphasis in original record.)
      14. On July 19, 2000, Mr. Todd signed an authorization for the Social Security Administration to release consultative evaluation results to: Marvin W. Johnson, M.D., 850 E. Main Street, Suite # 1, Lake Butler, FL, 32054.
      15. On October 4, 2000, John Todd was asked by the employees at Gainesville Radiology Group who his doctor was. Mr. Todd told the employees that Dr. Marvin Johnson was his doctor.

      . The second amended complaint alleged:

        16. Also, on October 4, 2000 an employee of Gainesville Radiology Group called Dr. Johnson's office and told Dr. Johnson's office that Mr. Todd had a 2 cm mass on his chest x-ray.
      17. A notation in Mr. Todd's medical record made by an employee of Dr. Johnson state[s]:
      "Dr. Johnson,
      Dr. Alderman from N.F. Radiology wants you to call her concerning John C. Todd."
      18. Below this notation in different handwriting is the notation:
      "Order x-ray that showed mass in lung.”
      19. Apparently, Dr. Johnson considered Mr. Todd to be his patient, as his office ordered the chest x-ray.
      23. The finding on the chest x-ray, which showed Mr. Todd had a mass suspicious for malignant cancer, was concealed from Mr. Todd from October 4, 2000 to July 23, 2004.
      25. On or about October 4, 2000 and everyday thereafter until July 23, 2004, Dr. Marvin Johnson concealed from Mr. Todd the fact that Mr. Todd had been diagnosed with a 2 cm mass in his lung that was suspicious for malignancy.
      27. The earlier cancer is diagnosed the better is the patient’s prognosis.
      28. At no time between October 4, 2000 and July 23, 2004 did either Defendant Marvin Johnson, M.D. or his staff contact John Todd to tell him he had a suspicious mass found on the chest x-ray taken October 4, 2000.
      29. Dr. Marvin Johnson, by his silence, concealed a medical condition that demanded immediate attention.
      32. Mr. Todd now has stage-four cancer.
      35. On or about October 4, 2000, and every day thereafter until July 23, 2004, Defendant Marvin Johnson, M.D. practiced medicine below the standard of care for a reasonably prudent physician, was negligent with concealment, and breached the duty to practice medicine within the accepted standard in the medical community in that:
      a. he concealed the fact that Mr. Todd’s chest x-ray showed a malignant two centimeter mass on October 4, 2000. The information was concealed from Mr. Todd from October 4, 2000 to July 23, 2004.
      b. he caused an approximate three and one-half year delay in the treatment of Mr. Todd’s cancer.

      . The notice of intent to initiate litigation for medical malpractice was dated September 20, 2005.

      . The Todds’ complaint alleged that Dr. Johnson breached a duty on October 4, 2000, and every day thereafter until July 23, 2004, because, presented with a patient’s chest x-ray showing a two centimeter mass in the lung suspicious for malignancy, he had a duty to follow up and notify the patient immediately so that treatment could be initiated. On appeal, however, the Todds do not argue that the statute of repose is satisfied on the theory that a new wrong was done every day the problem went unreported.

      . The trial court’s order granting motion to dismiss second amended complaint did not cite case authority, but its order granting defendant’s motion to dismiss first amended complaint with leave to amend cited “Nehme v. Smithkline, 863 So.2d 201[sic], Carlton v. Ridings, 422 So.2d 1067 (Fla. 1st DCA 1982) and Glass v. Camara, 369 So.2d 625 (Fla. 1st DCA 1979).” All three of these decisions pertained to malpractice committed before chapter 96-167, Laws of Florida, took effect, and must be understood in that light. See Ch. 96-167, § 2, at 221, Laws of Fla. ("This act shall take effect July 1, 1996, and shall not apply to causes of action arising from acts, events, or occurrences that take place before that date.”).
      In Nehme v. Smithkline Beecham Clinical Labs., 863 So.2d 201, 204 (Fla.2003), the court described the pertinent difference between the superseded version and the post-1996 version of section 95.11(4)(b) that governs here:
      The pre-1996 version of the statute provides:
      An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An "action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the 4— year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event,to exceed 7 years from the date the incident giving rise to the injury occurred.
      § 95.1 l(4)(b), Fla. Stat. (1993) (emphasis added). The post-1996 version does not contain the above-underlined phrase.
      Like the superseded statute which they interpret, Nehme, Carlton and Glass do not control here. The Todds' discovery of the nondisclosure within the initial four-year period of repose does not preclude extension of the period for a total of up to seven years. § 95.11(4)(b), Fla. Stat. (2004).

      . The court also invoked the maxim noscitur a sociis in construing the statute. After defining both “fraud” and "intentional misrepresentation of fact,” the court stated that, because both terms "involve a level of knowledge or intent, we conclude that the legislative intent was to extend the repose period when intentional acts prevent discovery of the injury. A negligent diagnosis, without more, does not constitute concealment.” Nehme, 863 So.2d at 205.
      Another rule of statutory construction counsels against deeming any portion of a statute superfluous. See Simpson v. Knight, 12 Fla. 144, 147 (Fla.1867) (noting "the duty of the court to construe the law if possible, so as to give a meaning and effect to every word and clause in the act”). If "concealment” has any meaning and effect distinct from "intentional misrepresentation” and "fraud,” "concealment” must at least encompass the knowing failure to disclose information which there is a duty to disclose.

      . In addition to the allegations set out above, the complaint alleged:
      7. Plaintiff, John Todd, had office visits with the Defendant, Marvin Johnson, M.D., on January 25, 2000, January 28, 2000, July 19, 2004, and July 23, 2004.
      On at least one of these occasions, Dr. Todd allegedly diagnosed and treated him.


text:
    CGH HOSPITAL, LTD. d/b/a Coral Gables Hospital, Tenet Healthsystem Hospitals, Inc. d/b/a Delray Medical Center, FMC Hospital, Ltd. d/b/a Florida Medical Center, Tenet Good Samaritan, Inc. d/b/a Good Samaritan Medical Center, Tenet Hialeah Healthsystem Hospitals, Inc. d/b/a Hialeah Hospital, Tenet Healthsystem Hospitals, Inc. d/b/a Hollywood Medical Center, Amisub (North Ridge Hospital), Inc. d/b/a North Ridge Medical Center, Tenet Healthsystem North Shore, Inc. d/b/a North Shore Medical Center, Palm Beach Gardens Community Hospital, Inc. d/b/a Palm Beach Gardens Medical Center, Lifemark Hospitals of Florida, Inc. d/b/a Palmetto General Hospital, North Miami Medical Center, Ltd. d/b/a Parkway Regional Medical Center, Pinecrest Rehabilitation Hospital, Inc. d/b/a Pi-necrest Rehabilitation Hospital, Tenet St. Mary’s, Inc. d/b/a St. Mary’s Medical Center, and Tenet Healthsystem Hospitals, Inc. d/b/a West Boca Medical Center; St. Vincent’s Medical Center; and Sacred Heart Hospital of Pensacola, Appellants, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee. Lakeland Regional Medical Center, Inc., d/b/a Lakeland Regional Medical Center, Baptist Hospital, Inc., and Mercy Hospital, Inc., Appellants, v. State of Florida, Agency for Health Care Administration, Appellee. Plantation General Hospital Limited Partnership, d/b/a Plantation General Hospital, Shands at Lakeshore, Inc., Memorial Healthcare Group, Inc., d/b/a Memorial Hospital Jacksonville, New Port Richey Hospital, Inc., North Florida Regional Medical Center, Inc., Galencare, Inc., d/b/a Northside Hospital, HCA Health Services of Florida, Inc., d/b/a Oak Hill Hospital, Northwest Medical Center, Inc., Edward White Hospital, Inc., Sarasota Doctors Hospital, Inc., d/b/a Doctors Hospital of Sarasota, Doctors Osteopathic Medical Center, Inc., d/b/a Gulf Coast Hospital, Cedars Healthcare Group, Ltd., d/b/a Cedars Medical Center, Sun City Hospital, Inc., d/b/a South Bay Hospital, Southwest Florida Regional Medical Center, Inc., Okaloosa Hospital, Inc., d/b/a Twin Cities Hospital, University Hospital, Ltd., d/b/a University Hospital and Medical Center, West Florida Regional Medical Center, Inc., Columbia Hospital Corporation of South Broward d/b/a Westside Regional Medical Center, Orange Park Medical Center, Inc., Marion Community Hospital, Inc., d/b/a Ocala Regional Medical Center, Lawnwood Medical Center, Inc., d/b/a Lawnwood Regional Medical Center, Largo Medical Center, Inc., Columbia Hospital (Palm Beaches) Limited Partnership d/b/a Columbia Hospital, Natami Hospital of Florida, Inc., d/b/a Lake City Medical Center, Kendall Healthcare Group, Ltd., d/b/a Kendall Medical Center, Columbia/JFK Medical Center Limited Partnership d/b/a JFK Medical Center, Miami Beach Healthcare Group, Ltd., d/b/a Aventura Hospital And Medical Center, Bay Hospital, Inc., d/b/a Gulf Coast Medical Center, Englewood Community Hospital, Inc., Fawcett Memorial Hospital, Inc., Fort Walton Beach Medical Center, Inc., HCA Health Services of Florida, Inc., d/b/a Blake Medical Center, HCA Health Services of Florida, Inc., d/b/a Regional Medical Center Bayonet Point, Tallahassee Medical Center, Inc., d/b/a Capital Regional Medical Center f/k/a Tallahassee Community Hospital, Galencare, Inc., d/b/a Brandon Regional Hospital, Central Florida Regional Hospital, Inc., Galen of Florida, Inc., d/b/a Saint Petersburg General Hospital, Shands Teaching Hospital and Clinics, Inc., d/b/a Shands at Live Oak, Shands Teaching Hospital and Clinics, Inc., d/b/a Shands at Starke, Shands Teaching Hospital and Clinics, Inc., d/b/a Shands Hospital at the University of Florida, Osceola Regional Hospital, Inc., d/b/a Osceola Regional Medical Center, Columbia Palms West Hospital Limited Partnership d/b/a Palms West Hospital, Okeechobee Hospital, Inc., d/b/a Raulerson Hospital, HCA Health Services of Florida, Inc., d/b/a Saint Lucie Medical Center, Putnam Community Medical Center, LLC., Wuesthoff Memorial Hospital, Holmes Regional Medical Center, Inc., Cape Canaveral Hospital, Inc., Morton Plant Hospital Association, Inc., d/b/a Morton Plant North Bay Hospital, Morton F. Plant Hospital Association, Inc., d/b/a Morton Plant Hospital, South Florida Baptist Hospital, Inc., Saint Joseph’s Hospital, Inc., Saint Anthony’s Hospital, Inc., Trustees of Mease Hospital, Inc., d/b/a Mease Hospital—Dunedin, Halifax Hospital Medical Center d/b/a Halifax Medical Center, Bethesda Memorial Hospital, South Broward Hospital District d/b/a Memorial Regional Hospital, South Broward Hospital District d/b/a Memorial Hospital Pembroke, South Broward Hospital District d/b/a Memorial Hospital West, Adventist Health System, Inc., d/b/a Florida Hospital, Pasco HMA, Inc., d/b/a Pasco Regional Medical Center, Bayfront Medical Center, Inc., Bay Medical Center, Orlando Regional Healthcare System, Inc., d/b/a Orlando Regional Medical Center, Holy Cross Hospital, Inc., Winter Haven Hospital, Inc., North Brevard County Hospital District, d/b/a Parrish Medical Center, and Leesburg Regional Medical Center, Inc., Appellants, v. State of Florida, Agency for Health Care Administration, Appellee. Mount Sinai Medical Center of Florida, Inc., d/b/a Mount Sinai Medical Center and Citrus HMA, Inc., d/b/a Seven Rivers Regional Medical Center f/k/a Seven Rivers Community Hospital, Appellants, v. State of Florida, Agency for Health Care Administration, Appellee.
    Nos. 1D06-3857, 1D06-3872, 1D06-3877, 1B06-3890.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2007.
    Steven T. Mindlin and Diane D. Tremor of Rose, Sundstrom & Bentley, L.L.P., Tallahassee; Michael J. Glazer, C. Gary Williams, and John R. Beranek of Ausley & McMullen, Tallahassee; Jonathan L. Rue of Parker, Hudson, Rainer & Dobbs, Atlanta, GA; and Robert A. Weiss and Karen A. Putnal of Parker, Hudson, Rain-er & Dobbs, Tallahassee, for Appellants.
    Garnett W. Chisenhall, Chief Appellate Counsel, and Grant P. Dearborn and Tracy Lee Cooper, Assistant General Counsels, Tallahassee, for Appellee.
   PER CURIAM.

The appellants challenge the Agency for Health Care Administration’s (AHCA’s) final order and its interpretation of section 395.701(2), Florida Statutes (2000), and the provisions of chapter 2000-256, Laws of Florida. The appellants argue that section 395.701(2), as amended, is ambiguous and the administrative law judge (ALJ) erred in his interpretation. We agree and reverse.

Background

The Public Medical Assistance Act was created by the Florida Legislature in 1984 and included section 395.701, Florida Statutes. Section 395.701 imposed upon each hospital in Florida an assessment equal to one-and-a-half percent of the hospital’s net operating revenue. All assessments paid pursuant to section 395.701 are deposited into the Public Medical Assistance Trust Fund (PMATF). During the 2000 legislative session, the assessment rate on public hospitals was amended to one-and-a-half percent of the annual net operating revenue for inpatient services and one percent of the annual net operating revenue for outpatient services. Ch. 2000-256, § 16, Laws of Fla. In order to avoid losing federal matching Medicaid funds, the legislature appropriated $28.3 million to the PMATF for the 2000-2001 state fiscal year. Ch.2000-256, § 21, Laws of Fla. This annual appropriation continues to be funded by the General Revenue Fund or AHCA’s Tobacco Settlement Trust Fund. § 395.7016, Fla. Stat. (2000).

The appellants in the instant case consist of approximately 90 hospitals throughout Florida. On various dates beginning in September 2002, the appellants filed requests with AHCA seeking refunds of overpaid PMATF assessments. The requests were denied by AHCA and the appellants requested formal administrative hearings. The cases were consolidated and the hearing was conducted in three phases. The first phase consisted of a hearing to resolve the correct legal interpretation of section 395.701(2). The second phase was the entry of a preliminary ruling setting forth the ALJ’s ruling on the legal interpretation. The third phase consisted, to the extent necessary, of hearing any outstanding factual issues that needed to be resolved.

The appellants’ proposed methodology (the invoice methodology) sought to apply the assessment reductions to each assessment paid after the effective date of chapter 2000-256. Typically, the hospitals submitted their financial reports to AHCA within four to six months after the end of their fiscal year. AHCA would then certify the reports and send an invoice to the hospitals with their assessments. The testimony and evidence presented at the hearing showed that quarterly assessments were usually not paid until at least six months after the end of the hospitals’ fiscal year. In support of their position, the appellants presented evidence showing that AHCA had historically not required assessment payments after a hospital closed. Furthermore, AHCA required new hospitals to pay assessments before any revenue was ever earned. See Fla. Admin. Code Ann. R. 10N-5.605(5) (2000).

At the conclusion of the first phase, the ALJ issued his recommended order and adopted another methodology (the imposition methodology), which applied the assessment reduction to all revenue earned in fiscal years ending after July 1, 2000, the effective date of chapter 2000-256. The ALJ found that the language of section 395.701(2) was clear and unambiguous and extrinsic facts were unnecessary to discern legislative intent. The ALJ concluded that the invoice methodology was not applicable because the statute states that the assessments are imposed once the hospital “experiences” a net operating revenue. The appellee adopted the imposition methodology in its final order. This timely appeal followed.

Statutory Interpretation

A fundamental principle of statutory construction is that clear and unambiguous statutes require no judicial interpretation. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 454 (Fla.1992). Even when the court is convinced that the legislature really meant and intended something not disclosed in the act, the court should not depart from the plain meaning of the statute that is unambiguous. Id. (quoting Van Pelt v. Hilliard, 75 Fla. 792, 78 So. 693, 694-95 (1918)).

Section 395.701(2), Florida Statutes, provides as follows:

(2)(a) There is imposed upon each hospital an assessment in an amount equal to 1.5 percent of the annual net operating revenue for inpatient services for each hospital, such revenue to be determined by the agency, based on the actual experience of the hospital as reported to the agency. Within 6 months after the end of each hospital fiscal year, the agency shall certify the amount of the assessment for each hospital. The assessment shall be payable to and collected by the agency in equal quarterly amounts, on or before the first day of each calendar quarter, beginning with the first full calendar quarter that occurs after the agency certifies the amount of the assessment for each hospital. All moneys collected pursuant to this subsection shall be deposited into the Public Medical Assessment Trust Fund.
(b) There is imposed upon each hospital an assessment in an -amount equal to 1 percent of the annual net operating revenue for outpatient services for each hospital, such revenue to be determined by the agency, based on the actual experience of the hospital as reported to the agency. Within 6 months after the end of each hospital fiscal year, the agency shall certify the amount of the assessment for each hospital. The assessment shall be payable to and collected by the agency in equal quarterly amounts, on or before the first day of each calendar quarter, beginning with the first full calendar quarter that occurs after the agency certifies the amount of the assessment for each hospital. All moneys collected pursuant to this subsection shall be deposited into the Public Medical Assessment Trust Fund.

§ 395.701(2), Fla. Stat. (2000). This statute provides several purposeá. First, the statute delineates the lowered assessments based upon the revisions in chapter 2000-256. Second, the statute requires AHCA to certify the amount of assessment owed within six months after the end of the hospital’s fiscal year. Third, the statute provides that the assessments are payable beginning the first full calendar quarter following the certification date. However, the statute does not address the date on which the assessment is calculated. Therefore, the ALJ erred in concluding that the statute was clear and unambiguous.

It is proper to resort to rules of statutory construction to discern legislative intent when the statutory language is ambiguous. See Joshua v. City of Gainesville, 768 So.2d 432, 435 (Fla.2000) (citing Holly v. Auld, 450 So.2d 217, 219 (Fla.1984)). The statute is ambiguous if reasonable persons could find different meaning in the same language. Dep’t of Rev. v. Lockheed Martin Corp., 905 So.2d 1017, 1020 (Fla. 1st DCA 2005) (citing State v. Huggins, 802 So.2d 276, 277 (Fla.2001)). The court may consider administrative construction, legislative history, and other extraneous materials when a statute’s construction results in a doubtful meaning. Lockheed Martin Corp., 905 So.2d at 1020 (citing Donato v. Am. Tel. & Tel. Co., 767 So.2d 1146, 1152 (Fla.2000)). The statute may be read as whole and properly construed once legislative intent is determined. Joshua, 768 So.2d at 435.

Conclusion

The extrinsic facts presented in this case indicate that the legislature intended for the assessment reductions to have an immediate effect upon the hospital industry. Section 395.7016 mandates that the assessment reductions chapter 2000-256 be budget neutral in order to ensure that the State continues to receive matching Medicaid funds. § 395.7016, Fla. Stat. (2000). In addition, the ALJ found that the $28.3 million appropriation would result in budget neutrality. Finally, AHCA’s past practices included requiring hospitals to pay PMATF assessments pri- or to generating any revenue and not requiring hospitals to make quarterly assessments beyond the date that they ceased. Therefore, the appellants’ invoice methodology is the only interpretation that embodies the legislative intent when the statute was amended. The assessment reductions take place immediately following the effective date of chapter 2000-256 and are computed based upon the date the assessments become due rather than when the revenue was earned. Accordingly, we REVERSE and REMAND to AHCA to enter a final order adopting the invoice methodology.

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

      . The appellee proposed a third methodology but its position was abandoned after the recommended order was issued.


text:
    JUSTICE ADMINISTRATIVE COMMISSION, Petitioner, v. Debra ALEXANDER, Esquire, Respondent.
    No. 5D07-115.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.

      Christian D. Lake, Assistant General Counsel, The Justice Administrative Commission, Tallahassee, for Petitioner.
    Debra Alexander, St. Augustine, pro se.
    Jeremiah S. Mulligan, St. Augustine, for Respondent.
   PER CURIAM.

Petitioner, the Justice Administrative Commission [“JAC”], seeks certiorari review of circuit court orders from the Seventh Judicial Circuit ordering JAC to pay-private court appointed counsel, Debra Alexander, additional compensation in five cases. JAC claims that Ms. Alexander has already received full compensation for each of the cases as authorized under local Administrative Order P-2006-194.

Debra Alexander was previously appointed to represent indigent parents in five dependency cases. By administrative order, the local Indigent Services Committee authorized the payment of a flat rate of $850 per dependency case unless a trial court determines the amount is manifestly insufficient. Ms. Alexander received a flat fee of $850 for each of the cases.

Paragraph 16 of Administrative Order P-2006-194 requires counsel to render legal services to the client until conclusion of the case, unless relieved from further representation by the presiding judge. In September 2006, the trial court reappointed Ms. Alexander to each of the five cases nunc pro tunc to various earlier dates. After her reappointments, Ms. Alexander submitted vouchers to JAC requesting an additional flat fee of $850 for each case. On November 13, 2006, JAC issued letters of objection, arguing that the $850 was a flat fee for each case, not per appointment. After receiving those letters of objection, Ms. Alexander filed in each case a motion for payment of fee and requested a hearing. After the hearing, on December 13, 2006, the trial court entered orders awarding Ms. Alexander the additional flat fee of $850 in each case to which she was reappointed. The court found that at the time of the reappointment, each case was still under protective supervision and each parent had an active, open case plan and active judicial review dates requiring legal services. The court found that the attorney is appointed for a twelve-month period, renewable annually by separate order and interpreted Administrative Order P-2006-194 to require payment of a flat fee in the amount of $850 per annual period.

JAC seeks certiorari review of these orders, claiming that there is nothing in the Administrative Order to suggest that the flat fee is payable on an annual basis. JAC argues that the mere fact that Ms. Alexander was reappointed to these cases would not justify a second flat fee. JAC points out that under Paragraph 13 of the Administrative Order, Ms. Alexander could seek additional compensation if the amount of compensation under Paragraph 4 ($850) was manifestly insufficient. In such cir-eumstances, upon the proper showing, court-appointed counsel may bill hourly. JAC points out that Alexander made no attempt to qualify for the additional fee under the terms of Paragraph 13.

Section 27.42(2)(a), Florida Statutes (2006), provides that the indigent services committee of each judicial circuit has the responsibility to manage the appointment and compensation of court-appointed counsel within that circuit. Administrative Order P-2006-194 was adopted pursuant to section 27.42(2)(a), Florida Statutes (2006). Although contained in the administrative order, the compensation rates were established by the indigent services committee, and approved by the chief judge of the circuit. Pursuant to section 27.5304(2), Florida Statutes (2006), JAC is responsible for administering private court-appointed attorney compensation at the state level. Under this statute, JAC may object to any proposed billing submitted by private court-appointed counsel, but the court retains primary authority and responsibility for determining the reasonableness of all billings for attorney’s fees,' costs, and related expenses, subject to statutory limitations. Upon an objection by JAC, the attorney has the burden to prove the entitlement to the fees or related expenses.

The applicable section of the Administrative Order at issue provides:

4. Attorneys appointed to represent indigent parents in juvenile dependency, CINS/FINS and related proceedings will be entitled to compensation at the rate of $850 per case (payable upon entry of an order of disposition, conclusion of a 12-month permanency review, or following a judicial review hearing) (see § 27.5304(7), Florida Statutes). Attorneys so appointed agree to provide periodic representation to parties at shelter hearings, for which no additional compensation shall be paid.

The above-quoted section of the Administrative Order appears to us to say that the flat fee is $850 per case, which may be paid upon entry of a final order of disposition, a judicial review hearing, or the conclusion of a twelve-month permanency review.

Paragraph 16 of the Administrative Order concerns the length of representation of appointed counsel:

16. Attorneys appointed to represent individuals pursuant to this order are required to render legal services to his/ her client from the time he/she is appointed through the conclusion of the case. Attorneys will remain attorneys of record until the court terminates jurisdiction, or until otherwise relieved from further representation by the presiding judge.

Respondent Alexander relies on paragraph 16 for the proposition that the court had discretion to relieve her from repre-. sentation, and then reappoint her for a second flat fee of $850. Although Paragraph 16 allows the trial court to relieve an attorney from representation of a party in a case, that paragraph does not suggest that the same attorney could be reappointed and would receive an additional flat fee of $850..

Although we respect the trial court’s unique perspective and local knowledge in a matter such as this, and we recognize that a fee of $850 is very small, it is the responsibility of the indigent services committee to set the fee and we think the order is clear. Accordingly, we grant the writ of certiorari and quash the fee order.

WRIT GRANTED; fee order QUASHED.

PALMER, C.J., GRIFFIN and EVANDER, JJ., concur.

      . The paragraph concerning additional compensation reads as follows:
      13. If compensation levels referenced in sections 2, 4, or 5 above are manifestly insufficient to compensate an individual attorney for required legal services in an individual case, said attorney may file á motion with the presiding judge for additional compensation. Said motion must include a detailed listing of the services provided to date and an estimate of the number of additional hours required to conclude representation.

        Such additional hourly compensation will be permitted only upon order of the court and only for hours deemed reasonable and necessary. Attorneys receiving such additional compensation will be entitled to compensation at the rate of $75 per hour for such additional hours of service.

      . The chief judge of the judicial circuit is normally the chair of the committee. See § 27.42(l)(a), Fla. Stat. (2006).

      . The three intervals for payment provided in the Administrative Order track the language of section 27.5304(7), Florida Statutes (2006). Section 27.5304(7), Florida Statutes, which provides that private court-appointed counsel representing a .parent in a dependency case may submit a request to JAC at the three intervals noted above, but in no case may a request be submitted more than once a quarter, unless the court finds extraordinary circumstances justifying more frequent submissions of payment requests.


author: ORFINGER, J.

text:
    STATE of Florida, Appellant, v. Thomas Jerome SPRINGER, Appellee.
    No. 5D06-2953.
    District Court of Appeal of Florida, Fifth District.
    Sept. 14, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellant.
    David A. Webster, Longwood, for Appel-lee.
   ORFINGER, J.

The State of Florida appeals an order modifying a condition of Thomas Springer’s sex offender probation. The State contends that the trial court was without authority to modify the statutorily mandated condition set forth in section 948.30(l)(b), Florida Statutes (2006), requiring the trial court to prohibit any sex offender on probation from living within 1,000 feet of a playground dr other place where children congregate. As Mr. Springer correctly points out, the trial court’s order is not appealable. See Baker v. State, 746 So.2d 469 (Fla. 2d DCA 1997). It is, however, subject to review under this Court’s certiorari jurisdiction. See Werner v. State, 843 So.2d 1039, 1040 (Fla. 2d DCA 2003). Accordingly, we treat this matter as a petition for writ of certiorari and grant the petition.

Mr. Springer pled no contest to various sex offenses, was designated a sexual offender, and placed on consecutive terms of sex offender probation. As required by section 948.30(l)(b), Florida Statutes (2006), included in the conditions of his probation was a condition prohibiting him “from living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court.” Unfortunately, Mr. Springer’s residence measured 865 feet from a playground in a neighboring gated community. As a result, he petitioned the court to modify his probation to allow him to continue to live at that residence. The trial court granted Mr. Springer’s motion, allowing him to live 865 feet from the playground so long as he did not enter any portion of the subdivision and its recreation area. This proceeding followed.

The State asserts that the trial court did not have the authority to modify the residence: restriction as section 948.30(l)(b) prohibits a sex offender on probation-from living within 1,000 feet of a playground or similar facility. We agree.

In its order granting the modification, the trial court determined that it had authority to modify Mr. Springer’s conditions of probation, reasoning:

11. The State asserts that the Court does not have the authority to modify a F.S. § 948.30 sex offender probation condition in any respect.
12. Florida Statute 948.03(2) provides in pertinent part that “The Court may rescind or modify at any time the terms and condition theretofore imposed by it upon the probationer.” That language existed in § 948.03 at the time § 948.30 was promulgated. The legislature is presumed to know its own statutes when it enacts a new statute, and the enactment is done with that knowledge. Tamiami Trail Tours, Inc. v. Lee, 142 Fla. 68, 194 So. 305 (1940). The general presumption is that later statutes are passed with knowledge of prior existing laws, and a construction is favored which gives each one a field of operation, rather than the former being repealed by implication. Baxley v. State, 411 So.2d 194 (Fla. 5[th] DCA[] 1981); State v. Dunmann, 427 So.2d 166 (Fla.1983).
13. A statute should be interpreted to give effect to every clause in it, and to accord meaning and harmony to all of its parts. State ex rel. City of Casselberry v. Mager, 356 So.2d 267, 269 n. 5 (Fla. 1978). Likewise, “statutory phrases are not to be read in isolation, but rather within the context of the entire section[.]” Jackson v. State, 634 So.2d 1103, 1105 (Fla. 4th DCA 1994); see also, Smith v. United States, 508 U.S. 223, 233, 113 S.Ct. 2050, 2056, 124 L.Ed.2d 138 (1993) (Just as a single word cannot be read in isolation, nor can a single provision of a statute.)[.] The State urges such an interpretation by asserting that the use of the word “must” in § 948.30(1) prohibits the Court from modifying any of the sex offender probation conditions as authorized by § 948.03(2). The Court is not inclined to accept this interpretation.
14. As noted earlier, § 948.03(l)(b) contains the phrase “,as prescribed by the court.” [sic] at the end of a list of places proscribed within the 1,000 ft buffer imposed by the legislature. Based upon standard American English rules of punctuation this phrase, when set off by a comma, applies to all of the preceding listed subordinate clauses. One of the definitions of “prescribed” in Webster’s New World Dictionary is “to set down or imposed rules.”
15. Thus, § 948.30(l)(b) of the Florida Statutes, when read giving meaning to the afore cited clause provides that the Court may impose rules or conditions applicable to any of the proscribed places within the 1,000 ft buffer.

As a general proposition, a trial court has authority to modify or rescind the terms or conditions of probation imposed by it. § 948.03(2), Fla. Stat. (2006); see, e.g., Lippman v. State, 633 So.2d 1061 (Fla.1994). However, that discretion is not unlimited. Section 948.30(1), Florida Statutes (2006), mandates that for probationers who committed certain specified sex-based crimes after October 1, 1995, “the court must impose [certain] conditions in addition to all other standard and special conditions imposed.” One of the legislative mandates is that the trial court prohibit any probationer from living within 1,000 feet of any school, day care center, park or playground, or any other place where children regularly congregate. § 948.30(l)(b), Fla. Stat. (2006). As this condition is mandatory for individuals convicted of Mr. Springer’s offenses, we conclude that the trial court was not authorized to modify or delete it. § 948.30(1)(b), Fla. Stat. (2006); Woodson v. State, 864 So.2d 512, 515 (Fla. 5th DCA) (holding that trial judge is obligated to impose mandatory conditions of sex offender probation and that “the statute does not allow for judicial discretion”), review dismissed, 889 So.2d 823 (Fla. 2004); see State v. Miller, 888 So.2d 76, 78 (Fla. 5th DCA 2004); see also Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (explaining that courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit its express terms”).

Mr. Springer argues that Wesner v. State, 843 So.2d 1039 (Fla. 2d DCA 2003), gives the court the authority to modify the condition as long as it was originally imposed as required. We disagree. In Wes-ner, the Second District, reviewing section 948.03(5)(a)5., Florida Statutes (2000), held that the trial court had discretion to modify the defendant’s probation to allow him to have unsupervised contact with his young son and grandchildren before completing his four-year sex offender treatment program. However, unlike here, section 948.03(5)(a)5., Florida Statutes (2000), specifically authorized the trial court to allow ■ for unsupervised contact between a defendant and a child under the age of 18:

If the victim was under the age of 18, a prohibition, until successful completion of a sex offender treatment program, on unsupervised contact with a child under the age of 18, unless authorized by the sentencing court without another adult present ivho is responsible for the child’s welfare, has been advised of the crime, and is approved by the sentencing court. (Emphasis added). Based on the statute’s clear language, the Second District concluded the trial court had the discretion to modify the defendant’s probation. In this case, no such authority exists. Accordingly, we quash the order on review.

PETITION GRANTED, ORDER QUASHED.

MONACO and EVANDER, JJ., concur.

      . This section formerly appeared in section 948.03(6), Florida Statutes (2004). The statute was rewritten, effective July 1, 2004. See Ch. 2004-373, §§ 14-25, Laws of Fla.

      . Section 948.30, Florida Statutes (2006), formerly appeared as section 948.03(5), Florida Statutes (2004). The statute was relocated and renumbered effective July 1, 2004. See Ch. 2004-373, § 18, Laws of Fla. This section now provides in pertinent part:
      948.30. Additional terms and conditions of probation or community control for certain sex offenses.-
      Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this section.
      (1) Effective for probationers or community controllees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s. 800.04, s. 827.071, or s. 847.0145, the court must impose the following conditions in addition to all other standard and special conditions imposed:
      (a) A mandatory curfew from 10 p.m. to 6 a.m. The court may designate another 8-hour period if the offender's employment precludes the above specified time, and the alternative is recommended by the Department of Corrections. If the court determines that imposing a curfew would endanger the victim, the court may consider alternative sanctions.
      (b) If the victim was under the age of 18, a prohibition on living within 1,000 feet of a school, day care center, park, playground, or other place where children regularly congregate, as prescribed by the court. The 1,000-foot distance shall be measured in a straight line from the offender’s place of residence to the nearest boundary line of the school, day care center, park, playground, or other place where children congregate. The distance may not be measured by a pedestrian route or automobile route....