author: GROSS, J.

text:
    ABRAHAM K. KOHL, D.C., individually and Dr. Abraham K. Kohl, P.A., d/b/a Kohl Chiropractic, on behalf of themselves and all others similarly situated, Appellant, v. BLUE CROSS AND BLUE SHIELD OF FLORIDA, INC., Appellee.
    No. 4D06-2533.
    District Court of Appeal of Florida, Fourth District.
    March 21, 2007.

      Ronald F. Shapiro of Sperry, Shapiro & Kashi, P.A., Plantation, for appellants.
    Steven E. Siff and Justin B. Uhlemann of McDermott Will & Emery, LLP, Miami, for appellee.
   GROSS, J.

This case involves an attack on an anti-assignment of benefits clause in a health insurance policy. We hold that the policy provision was enforceable, not ambiguous, and in accord with public policy.

Abraham K. Kohl, D.C. and his business, Dr. Abraham K. Kohl, P.A. d/b/a Kohl Chiropractic (collectively referred to as “Kohl”), timely appeal a final summary judgment rendered in favor of appellee, Blue Cross and Blue Shield of Florida, Inc.

The facts are not in dispute. The ease involves Blue Cross’s liability to Kohl for health insurance benefits Blue Cross previously paid to Dori Staples, Kohl’s patient and a Blue Cross insured, under an individual policy. Staples was not a party to the lawsuit.

Kohl provides chiropractic medical services in Broward County, Florida. Kohl is not a participating provider in the Blue Cross network of physicians and does not have a provider agreement with Blue Cross. As a new patient of Kohl’s, Staples executed an assignment of benefits form prepared by Kohl, purportedly assigning her right to receive all health insurance benefits under her policy with Blue Cross.

The assignment of benefits form read:

I hereby instruct and direct the _ Insurance Company to pay by check made out and mailed directly to:
Dr. Abraham K. Kohl
76 N. University Drive
Pembroke Pines, FI. 33024
OR
If my current policy prohibits direct payment to the doctor, then I hereby also instruct and direct you to make out the check to me and mail it as follows:
Kohl Chiropractic
76 N. University Drive
Pembroke Pines, FI. 33024
The professional or medical expense benefits allowable, and otherwise payable to me under my current insurance policy as payment toward the total charges for professional services rendered. THIS IS A DIRECT ASSIGNMENT OF MY RIGHTS AND BENEFITS UNDER THIS POLICY....

Kohl performed chiropractic services for Staples that were covered under her Blue Cross policy. At the time of the services, Staples’s insurance policy was memorialized in a Non-Group Preferred Patient Care II Major Medical Insurance Contract (“policy”). The portion of the policy relevant to the assignment of benefits under the contract read:

Eligible Non-PPC Providers
Eligible Non-PPC Providers are those health care Providers that have not entered into an agreement with BCBSF to participate in the PPC Provider network or were not participating in the network at the time the service or supply was provided. BCBSF’s payment for covered services rendered by an eligible Non-PPC Provider, if any, will be at the lower Coinsurance percentage of the PPC schedule amount, as set forth in the Schedule of Benefits.
The insured is responsible for filing claims for services and supplies rendered by eligible Non-PPC Providers. BCBSF’s payment, if any, for covered services rendered by an eligible Non-PPC Provider will always be made directly to the Insured. BCBSF will not honor any assignment to an eligible Non-PPC Provider, including without limitation, any of the following assignments: an assignment of the benefits due under this Contract; an assignment of the right to receive payments under this Contract; or an assignment of a claim for damages resulting from a breach, or any alleged breach of this Contract.

(Emphasis in original).

Although Kohl submitted benefit claims forms to Blue Cross, Blue Cross issued all benefits payable under the policy directly to Staples, who failed to pay Kohl.

Kohl filed a three-count complaint for (i) declaratory relief as to his rights under Staples’s purported assignment of benefits; (ii) breach of contract vis-a-vis that assignment of benefits; and (iii) damages for payment of a debt assigned. Both sides moved for summary judgment. The circuit court entered final summary judgment in favor of Blue Cross and against Kohl.

Whether the trial court correctly granted a motion for summary judgment is a question of law; therefore, this court reviews such a decision de novo. See Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla.2000). “To obtain a final summary judgment, the moving party must conclusively demonstrate that no genuine issue of material fact exists, and that the moving party is entitled to a judgment as a matter of law.” Maldonado v. Publix Supermarkets, 939 So.2d 290 (Fla. 4th DCA 2006) (citing Fla. R. Civ. P. 1.510(c); Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966)). The proof must be sufficient “to overcome all reasonable inferences which may be drawn in favor of the opposing party.” Id.

Kohl argues that to preclude the power to assign, a contract must contain an express provision that assignment is forbidden and that any attempt to assign shall be deemed void or invalid. Kohl argues that the policy’s lack of necessary explicit language prohibiting assignment of benefits renders it ambiguous. Kohl points out that insurers must write their policies to say what they mean to avoid findings of ambiguity. See Discover Prop, and Cas. Ins. Co. v. Beach Cars of West Palm, Inc., 929 So.2d 729 (Fla. 4th DCA 2006). In Kohl’s words, the policy does not contain a provision that “prohibits, proscribes, prevents, forbids, or invalidates any attempt to assign benefits” so that Staples’s assignment was valid, obligating Blue Cross to pay the benefits directly to him.

“[A]ll contractual rights are assignable unless the contract prohibits the assignment, the contract involves obligations of a personal nature, or public policy dictates against the assignment.” Classic Concepts, Inc. v. Poland, 570 So.2d 311, 313 (Fla. 4th DCA 1990). A court may enforce insurance policy provisions that clearly and unambiguously (1) preclude assignment, or (2) require the insurer’s permission before an assignment is made. Classic Concepts Inc., 570 So.2d at 311. Where there is no such provision forbidding assignment, an insurance policy may be assigned as any other chose in action. Cadore v. Cadore, 67 So.2d 635 (Fla.1953); Pendas v. Equitable Life Assur. Soc. of U.S., 129 Fla. 253, 176 So. 104 (1937); see also Md. Cas. Co. v. Murphy, 342 So.2d 1051 (Fla. 3d DCA 1977) (holding that silence as to assignability creates ambiguity that must be resolved in favor of the insured.)

Significantly, Florida statutes authorize prohibitions on assignment of both health insurance benefits and health insurance contracts. See § 627.638(2), Fla. Stat. (2005)(“Whenever, in any health insurance claim form, an insured specifically authorizes payment of benefits directly to any recognized ... physician ..., the insurer shall make such payment of benefits directly to any recognized ... physician ..., the insurer shall make such payment to the designated provider of such services, unless otherwise provided in the insurance contract.”); § 627.422, Fla. Stat. (2005) (A policy may be assignable, or not assignable, as provided by its terms.) (Emphasis added).

As quoted above, the policy provision on assignability stated:

BCBSF’s payment, if any, for covered services rendered by an eligible Non-PPC Provider will always be made directly to the Insured. BCBSF will not honor any assignment to an eligible Non-PPC Provider, including without limitation, any of the following assignments: an assignment of the benefits due under this Contract; an assignment of the right to receive payments under this Contract; or an assignment of a claim for damages resulting from a breach, or any alleged breach of this Contract.

(Emphasis in original). “Eligible Non-PPC Providers” are defined as “those health care Providers that have not entered into an agreement with BCBSF to participate in the PPC Provider network” or were not participating in the network at the time the service or supply was provided. The policy designates “Doctors of Chiropractic” as eligible providers.

Whether an ambiguity exists in the policy is a question of law that is reviewed de novo. See Torwest v. Killilea, 942 So.2d 1019, 1020-21 (Fla. 4th DCA 2006) (citing Essex Ins. Co. v. Simpler, 911 So.2d 794 (Fla. 1st DCA 2004)). Language in a contract is ambiguous where it is “fairly susceptible to more than one interpretation.” McInerney v. Klovstad, 935 So.2d 529, 531-32 (Fla. 5th DCA 2006). “In reviewing a contract ... to determine its true meaning, the court must review the entire contract without fragmenting any segment or portion.” Torwest, 942 So.2d at 1020 (citing J.C. Penney Co. v. Koff, 345 So.2d 732, 735 (Fla. 4th DCA 1977)).

Here, the Policy clearly and prominently states that it “will not honor” assignments of benefits to non-participating providers and that all benefits for covered services rendered by non-participating providers will “always” be paid “directly to the Insured.” The drafters attempted to write the policy in “everyday language” to effectively communicate with insureds. The everyday language clearly conveys to laymen that they, and not the non-participating provider, will always receive money for medical services received and that an assignment of benefits to such a provider will not work. See generally Nat’l Merck Co. v. United Serv. Auto. Ass’n, 400 So.2d 526, 529 (Fla. 1st DCA 1981) (“[A]n insurer has a duty to make its policy provisions and words plain, clear, and prominent to the layman, in a form which he can understand, especially in regard to coverage provisions.”).

Kohl essentially argues that the assignment provision is ambiguous because it does not use the correct “magic words” prohibiting assignment; the policy did not say that the insured “may not,” “shall not” or “cannot” assign benefits or that assignment of benefits is “forbidden,” “prohibited,” or “not permitted.” Kohl nitpicks at the policy language to argue that we should create an ambiguity by drawing the legalistic distinction between the “right” to assign and the “power” to assign. No Florida case or statute requires a specific verbal formula for a ban on assignments to be effective. Two Florida cases cited by Kohl turn on the scope of the anti-assignment clause, not on whether the anti-assignment language was precise enough to be effective. See State Farm Life Ins. Co. v. Fla. Asset Fin. Corp., 786 So.2d 1 (Fla. 4th DCA 2000) (holding that purported assignor was not a party to the annuity contract restricting assignment, so that he could assign the right to future payments); Aldana v. Colonial Palms Plaza Ltd., 591 So.2d 953 (Fla. 3d DCA 1991) (holding that a commercial lease provision prohibiting assignment of the “lease” restricted delegation of lease duties, but not assignment of the right to receive contractual payments). We agree with the Minnesota Supreme Court and

will not impose formulaic restraints on the language that contracting parties may employ to craft an anti-assignment clause that limits the power to assign. We believe the best approach is to simply apply the plain meaning of the words employed by the parties. When a contract prohibits assignment in very specific and unmistakable terms, any purported assignment is void. Although requiring the use of specific language, such as “void” or “invalid” ... would help to resolve any conceivable ambiguity about whether the parties intended to limit the “power” to assign rather than the “right” to assign, it is difficult to identify a clearer way to communicate an intent to deny a party the power to assign than to expressly say so.

Travertine Corp. v. Lexington-Silverwood, 683 N.W.2d 267, 273 (Minn.2004).

Public policy may limit the parties’ freedom to incorporate an anti-assignment clause into a contract. However, public policy favors the type of anti-assignment clause at issue in this case. See Somerset Orthopedic Assoc., P.A., 345 N.J.Super. 410, 785 A.2d 457, 461 (2001)(citing Parrish v. Rocky Mountain Hosp. and Med. Servs. Co., 754 P.2d 1180, 1182 (Colo.App.1988)); Kent Gen. Hosp., Inc. v. Blue Cross & Blue Shield of Del., Inc., 442 A.2d 1368, 1371-72 (Del.1982); Obstetricians-Gynecologists, P.C. v. Blue Shield of Neb., 219 Neb. 199, 361 N.W.2d 550, 555-56 (1985). Anti-assignment claus-

es prohibiting an insured’s assignments to out-of-network medical providers “ ‘are valuable tools in persuading health [care] providers to keep their costs down’ and as such override the general policy favoring the free alienability of choses in action.” Somerset Orthopedic, 785 A.2d at 461 (quoting Rocky Mountain Hosp., 754 P.2d at 1182); see also Augusta Med. Complex, Inc. v. Blue Cross of Kan., Inc., 230 Kan. 361, 634 P.2d 1123, 1126 (1981) (wherein the Supreme Court of Kansas explained its decision to uphold the non-assignability provision in health insurance subscriber’s contracts as an “urgent and overriding public interest” to contain health care costs). “The anti-assignment clause has been deemed to advance the overarching public interest in limiting health care costs for, if the patient could assign his or her rights to payment to outside medical providers, it would undercut the pre-arranged costs with in-network providers that are relied upon by non-profit health services corporations in deciding the premium amount.” Somerset Orthopedic., 785 A.2d at 461. The benefit to this system is that the insurer is able to impose cost restraints on the participating health care providers who, in return, receive quick and direct payment from the insurer. “If a patient could obtain care from a non-participating [provider] and assign it the patient’s right to be reimbursed under a group policy, in the teeth of an anti-assignment clause, this direct payment inducement to become a participating [provider] would be weakened or eliminated.” Washington Hosp. Ctr. Corp. v. Group Hospitalization & Med. Servs., Inc., 758 F.Supp. 750, 754 (D.D.C.1991).

Affirmed.

WARNER and TAYLOR, JJ., concur.

      . From June 8, 1996, to June 7, 2002, Staples was insured under BCBSF’s Non-Group Preferred Patient Care II Major Medical Insurance Contract ("PPC II Policy”). Effective June 8, 2002, Staples was insured under BCBSF’s BlueChoice for Individuals Under 65 Non-Group Contract.


source: Caselaw Access Project

author: FARMER, J.

license: Public Domain

text:
    Carl Ray SEESE, III, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3695.
    District Court of Appeal of Florida, Fourth District.
    March 28, 2007.
    Rehearing Denied June 7, 2007.

      Carey Haughwout, Public Defender, and Paul E. Petillo, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Senior Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

Carl and Holly dated for 6 or 7 months before she ended their relationship. He was upset about it and kept trying to see her. Holly obtained an injunction prohibiting him from having any contact with her. While he was in jail for violating the injunction, she began receiving collect telephone calls from him. She recorded 5 of his calls. Her phone records confirmed the jailhouse calls. She notified the police, who also overheard his calls and even spoke to him. The calls continued and increased — 14 one day, 18 the next, 34 another. Once he called her every 2 minutes for an extended period of time. In a period of 8 days, he made 90 calls to her. He was charged with aggravated stalking for contacting her in violation of a court order.

In addition to her testimony, the phone records, and police testimony, the recorded calls were played for the jury. His trial defense was that it was all a misunderstanding, not a case of harassment or malicious stalking — it was only a broken heart. On appeal he complains of the failure to instruct the jury on an element of the crime, in spite of his failure to ask for such an instruction, and of the state’s closing argument. The state suggests that while this may not have been a fatal attraction, it certainly was a fateful obsession. We affirm.

The standard jury instructions for criminal cases do not define maliciously in the approved instruction for section 784.048(4). See Fla. Std. Jury Instr. (Crim.) 8.7(b) (“To prove the crime of Aggravated Stalking, the State must prove the following two elements beyond a reasonable doubt ... (defendant) knowingly, willfully, maliciously, and repeatedly followed or harassed (victim) and (defendant) did so in violation of ... any [other] court imposed prohibition of conduct toward (the victim).... ”); Standard Jury Instructions in Criminal Cases (95-1), 657 So.2d 1152, 1154 (Fla. 1995). Notably the defense did not ask for a special instruction on the meaning of the term maliciously.

In closing argument the defense contended that the state failed to prove maliciously. Counsel argued that defendant may have been:

“[d]esperate, hurt, scared, maybe even pathetic, but not malicious. Mr. Seese is begging, he sounds pathetic and he sounds desperate. But he doesn’t sound malicious. He’s not threatening her, not saying that he’s going to hurt her.... He doesn’t rant.... There’s no malice in that.... Those phone conversations are specifically about moving forward with his life, moving on. There is no malice in Carl Seese’s words. There is no malice in his voice. There is no threat to harass her.”
“On those tapes ... you don’t hear any threats. He discusses with [Holly] if she’s still planning on moving out of state and if she wants him to postpone the case.... From the tone of Mr. Seese’s voice on those tapes, from the words that he is saying, there is no malice.”

The state argued in closing that it met its burden of proof:

“Let’s talk about maliciously. State has to prove that he acted with malice. In other words he acted with ... bad intent, that he didn’t have any good intentions, that there was ... no good cause for what he was doing. There was no justification. Maliciously.
“Now let’s talk about how we’ve proven that he acted maliciously. Well, for starters, calling her 90 times collect from jail ... during the hours that he knew — because they had dated before— her schedule, times he knew she was going to be home.... That’s malicious— calling someone’s house. Ninety times is certainly malicious. There is no good intent to that. He’s not acting with any justification.... ”
“You heard the tapes.... He heard the desperation in her voice, as you did: ‘Do you understand me?’ She says ‘stop calling here.’ And he’d call right back. Somebody with good intent after someone tells them not to call them, after they know there is a court imposed prohibition against contacting that person, is that person acting with good intention? No, they’re acting maliciously. They are acting with malice. Regardless of whether he was desperate or not she told him not to call. He continuously called. The judge told him not to contact her. He continued to contact her. That’s malice.”

Defendant made no objections to the state’s closing argument.

During deliberations, the jury asked for a dictionary. In response, defendant proposed a special instruction, which was approved and given by the court, the sense of which was that any word not specifically defined as part of the jury instructions should be considered by the jury as having its ordinary, common meaning. The trial court told the jury:

“You must decide this case only on the evidence that has been received during the trial and on the law in which I have instructed you. So, the answer is you cannot have a dictionary or any other outside reference material. However, you’re further instructed that any word which was not particularly defined as part of the jury instruction is to be considered by you as having its common and ordinary, everyday meaning.”

Not only did defendant make no objection to the court’s response, but he in fact requested the very substance of it. Later the jury sent a question seeking “the legal definition of maliciously” and whether it could have the court reporter’s notes explaining “what maliciously means per the state attorney” read back. Without objection by defendant and again with his consent, the court responded by telling the jury that:

“Any word which is not specifically defined in the jury instructions you must consider to have its normal, commonplace, everyday understanding of that particular word.
“Maliciously was not specifically defined in the jury instructions, so are you to rely on your own common understanding of the definition of that word. Okay? And to the extent that you thought the state attorney in her closing argument referred to a legal definition that the court would be giving, that was not a correct understanding. I wish we could — can be — more helpful.”

The jury returned to its deliberations and found him guilty as charged.

On this appeal defendant now argues that it was fundamental error for the trial court to fail to define maliciously, that the state exploited the omission by arguing a definition prejudicial to his position. The state argues there is no error at all, let alone fundamental error. All the elements of the crime were instructed, it says, and he agreed to the plain and ordinary meaning of maliciously.

Jury instructions are subject to the rule that the affected party must contemporaneously object to an instruction given or, instead, propose the instruction not given. See Fla. R.Crim. P. 3.390(d) (“No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.”); State v. Delva, 575 So.2d 643, 645 (Fla.1991) (failure to explicitly instruct jury whether defendant knew substance was cocaine is not fundamental error and could be preserved for appeal only by proper objection). The general rule is that a party may complain of an instruction given, or an instruction not given, only if the party raised the issue with the trial judge and secured a ruling. 575 So.2d at 644. This is necessary because the matter can then be corrected at trial and thereby avoid an appellate issue.

If no objection is made at trial, the issue may be raised on appeal only if the circumstances demonstrate fundamental error. Id. To be deemed fundamental, “the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Id. at 644-45; see also Walls v. State, 926 So.2d 1156, 1180 (Fla.2006) (same). Failing to instruct on a necessary element of the crime “over which the record reflects there was no dispute” is not fundamental error. Delva, 575 So.2d at 645; see also Battle v. State, 911 So.2d 85, 89 (Fla.2005).

The record does not support the argument that this case involves a failure to instruct the jury on a material element of the crime. The court’s decision not to give an unrequested special definition of maliciously did not “reach down into the validity of the trial to the extent that the verdict of guilty could not have been obtained without the assistance” of the omission.

The record demonstrates that the court did instruct the jury that the state was required to prove maliciously beyond a reasonable doubt. See Fla. Std. Jury Instr. (Crim.) 8.7(b). Section 784.048 does not contain any special definition of the term maliciously. As we have previously noted, the drafters of Standard Jury Instruction 8.7(b) did not specially define the term maliciously — presumably because the drafters of section 784.048(4) did not do so. Under these circumstances, the term maliciously in both the statute and its companion Standard Jury Instruction must be understood as a word of common usage having its plain and ordinary sense. See State v. Hagan, 387 So.2d 943, 945 (Fla.1980) (“In the absence of a statutory definition ... such words are construed in their plain and ordinary sense.”); see also State v. Mitro, 700 So.2d 643, 645 (Fla. 1997) (where a statute does not specifically define words of common usage, such words are construed in their plain and ordinary sense). Applying these principles, and acceding to defendant’s own request, the trial court instructed the jury that it must give the term maliciously its “normal, commonplace, everyday meaning,” which we regard as the functional equivalent of “plain and ordinary” meaning. Hence, no judicial error here of any kind — no fundamental error.

In law the term malice and its adverbial form maliciously have two meanings: “legal malice” (also known as “malice in law”), and “actual malice” (also known as “malice in fact”). Reed v. State, 837 So.2d 366, 368 (Fla.2002). Legal malice means “wrongfully, intentionally, without legal justification or excuse,” while actual malice means “ill will, hatred, spite, an evil intent.” Id. Taking the text of section 784.048(4) as a whole, and considering its context and the discernible purposes of the legislature, we conclude that the plain meaning of the statutory term maliciously is legal malice: i.e. “wrongfully, intentionally, without legal justification.” We reach this conclusion because the essence of this entire subsection is to criminalize the stalker who violates a court order prohibiting the contact with the subject. Section 784.048(4) punishes the person who continues to contact the subject in spite of a court order barring such contact — in other words, wrongfully, intentionally and without legal justification. That is precisely the conduct charged and proved in this case.

Defendant’s requested special instruction authorized the state to make the very argument it made in this case. The state could argue that defendant’s conduct was wrongful because it was in direct violation of a court order. It was intentional because it was repeated, persistent and undertaken in spite of his incarceration for previously violating the same order. It lacked legal justification because the very repetition and persistence, the very excess of his many calls, the rejection of her pleas on the recorded conversations to leave her alone, all this amounted to the absence of any possible reason justifying his long pattern of conduct. The nature of his many calls proclaimed not desperation but spite, a desire to see her suffer, an addiction to acts of ill will. The very fullness of his conduct allowed the state to argue that it did not much matter which definition of maliciously one used; his actions fit them all.

The record of this trial is a powerful demonstration that the instructions to the jury were not error and did not cause any legal prejudice to defendant. The evidence of his violation of the court order is immense and stands utterly unrefuted. Indeed so crushing is the mountain of evidence establishing his guilt that defendant’s only trial strategy was — not that he did not do it — but that in doing it his heart was broken and pure. He did what he did because he was desperate to have her remain in his life.

This strategy was probably his only hope of evading a conviction. It allowed him to exploit the lack of a formal, standardized definition of maliciously in section 784.048(4). Instead, by proposing a special instruction allowing the jury to employ any common ordinary, everyday meaning of this term, he could then mount his argument against the heavier meaning of actual malice: “ill will, hatred, spite, an evil intent.” He could argue that while the evidence demonstrated an overwrought continuing violation of the court order, it showed only that his painful desperation was not out of “ill will, hatred, spite, or evil intent.” Only in this way could he plausibly advocate reasonable doubt in the face of the mass of evidence. With the case against him so compelling, this was his only tactic.

Which brings us to our final point. The Committee on Standard Jury Instructions (Criminal) has found it mete and proper to define the term maliciously — and its kindred malice — in other instructions. See Fla. Std. Jury Instr. (Crim.) 10.13 (§ 790.19, shooting or throwing missiles in a dwelling); 12.4 (§ 806.13, criminal mischief); 16.1 (§ 827.03(2) aggravated child abuse). In the instructions for only two statutes has the Committee failed to define the terms. See Fla. Std. Jury Instr. (Crim.) 8.7 (§ 784.048, aggravated stalking); and 29.12 (§ 877.08(2), vending machine tampering or damaging). Undoubtedly this omission follows the statutes.

The fact that the legislature failed to give a special definition of a term hardly means that the Committee should refrain from doing so. It is far preferable to have a standardized instruction on this element of the crime used throughout the state than to have ad hoc and differing formulations in each trial where the issue is presented. It strikes us that justice would be better served by a standardized instruction for section 784.048(4) defining maliciously to mean “wrongfully, intentionally, and without legal justification,” for that is surely the sense in which the legislature used the term in this statute.

Affirmed.

STONE and MAY, JJ., concur.

      . “Any person who, ... after any ... court-imposed prohibition of conduct toward the subject person ..., knowingly, willfully, maliciously, and repeatedly ... harasses, ... another person commits the offense of aggravated stalking, a felony of the third degree, .... ” [e.s.] § 784.048(4), Fla. Stat. (2004).

      . When the jury asked for a dictionary to ascertain the ''common, ordinary and everyday” meaning, the request was properly denied. See Smith v. State, 95 So.2d 525, 528 (Fla. 195 7) ("a dictionary is not one of the things permitted to be taken into the jury room”). But — paradoxically—a court may refer to a dictionary to ascertain the plain and ordinary meaning that the legislature intended to assign the word. L.B. v. State, 700 So.2d 370, 372 (Fla.1997). Is the need of jurors for a dictionary any less than that of judges? Are there good reasons to allow jurors some access to the dictionaries that legislators and judges use?

      . Yet the statute and standard instructions do define the terms harass and credible threat.

      . The standard dictionary meanings track the legal meanings. The OED defines maliciously as “given to malice; addicted to sentiments or acts of ill will; wicked or evil disposition.” Oxford English Dict. (Compact 2d ed.) 1025. The AHD defines it as: "desire to harm or see others suffer; act without just cause or reason; extreme ill will or spite." Amer. Heritage Dict. (3d ed.) 1088.


author: ROTHENBERG, Judge.

text:
    COMMERCIAL CAPITAL RESOURCES, LLC, and Leslie Gross, individually and as Trustee of Various “Leslie Jay Gross Trusts,” Appellants, v. Paul GIOVANNETTI, Appellee.
    No. 3D06-1716.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Carlton Fields, P.A., Tampa, and Matthew J. Conigliaro, St. Petersburg, for appellants.
    Kozyak Tropin & Throckmorton, P.A., and David P. Milian, Coral Gables, for appellee.
    Before GERSTEN, CORTINAS, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The appellants, Commercial Capital Resources, LLC (“CCR”) and Leslie Gross (“Gross”), individually and as Trustee of the Various “Leslie Jay Gross Trusts,” appeal an order of the trial court enforcing a confidential settlement agreement (“settlement agreement”) entered into by CCR, Gross, and the appellee, Paul Giovannetti (“Giovannetti”). Because we find that the terms of the settlement agreement are ambiguous, we reverse and remand.

Gross and Giovannetti were business partners who founded CCR, a licensed mortgage lender that provides financing for the acquisition and development of real estate projects. The business partners ultimately had a falling out and in late 2005, Gross, individually and derivatively on behalf of CCR, sued Giovannetti, alleging that Giovannetti had been wasting and misappropriating CCR’s business assets and opportunities. In response, Giovan-netti filed derivative counterclaims against Gross, both in Gross’ individual capacity and in his capacity as Trustee of Various “Leslie Jay Gross Trusts,” alleging that Gross breached his fiduciary duties to Giovannetti and to CCR. Prior to trial, however, Gross and Giovannetti executed a settlement agreement, wherein Giovannetti agreed to sell his member interest in CCR to Gross in exchange for $1,000,000.00. Both Giovannetti and Gross agreed to exchange general releases and other related documents as per the terms of the settlement agreement. Paragraph 7 of the settlement agreement states, in pertinent part, that:

[Gross], CCR ... and all other named parties and defendants joined in the pending litigation will execute general releases in favor of [Giovannetti].... [Giovannetti] ... will execute general releases in favor of [Gross], CCR ... and all other named parties and defendants joined in the pending litigation. ... [Gross] agrees that in his capacity as “trustee” of any trust ... without prejudice to his fiduciary obligations or duty to provide proper and necessary notice and disclosures to investors, that he will refrain from taking any action [sic] initiate or to solicit the investors to initiate a law suit against [Giovannetti], and that if any such action is brought against [Giovannetti], [Gross] will resign as trustee irom any trust involved in or bringing the action.

Subsequently, pursuant to the parties’ joint motion, the trial court approved the settlement agreement, dismissed the pending claims with prejudice, and retained jurisdiction to enforce the terms of the settlement agreement. Gross and Giovan-netti were, however, unable to agree on the language of the releases required under the settlement agreement. Specifically, the dispute concerned Gross’ refusal to execute a general release in his capacity as trustee waiving all claims held by the trusts and its investors. Giovannetti filed a motion to enforce the settlement agreement, alleging that pursuant to the clear and unambiguous terms of paragraph 7 of the settlement agreement, Gross was required to execute a general release in his capacity as trustee of the trusts, without limitation in scope, including any and all claims held by the trusts and its investors. Conversely, Gross argued that the plain and unambiguous language of the settlement agreement did not require a release of the trusts’ and its investors’ claims. Gross argued that in fact, paragraph 7 clearly and expressly anticipates that the trusts and its investors could bring claims against Giovannetti since Gross is prohibited from soliciting such claims and is required to resign as trustee of any trust that brings such claim.

After a non-evidentiary hearing, the trial court, apparently agreeing with Giovannet-ti that the plain and unambiguous language of the settlement agreement requires that Gross provide a general release in his capacity as trustee waiving any and all claims held by the trusts and its investors, granted Giovannetti’s motion to enforce the settlement agreement. Gross appeals this order, alleging, in pertinent part, that as the language in the settlement agreement is susceptible to more than one reasonable meaning, it is ambiguous, and consequently, the trial court erred in resolving Giovannetti’s motion as a matter of law without holding an evidentiary hearing to determine the intention of the parties. We agree.

Settlement agreements are contractual in nature and are therefore, interpreted and governed by contract law. Barone v. Rogers, 930 So.2d 761, 763-64 (Fla. 4th DCA 2006); Cadle Co. v. Schecter, 602 So.2d 984, 985 (Fla. 3d DCA 1992). Construction of contractual terms is a question of law, which we review de novo, “provided that the language is clear and unambiguous and free of conflicting inferences.” Miller v. Kase, 789 So.2d 1095, 1097 (Fla. 4th DCA 2001); see also Gray v. D & J Indus. Inc., 875 So.2d 683, 683 (Fla. 3d DCA 2004)(“The construction of a contract is a question of law for the courts to determine where the language used in the written contract is clear, unambiguous, and susceptible to only one interpretation.”). Where the contractual language is clear and unambiguous, “courts may not indulge in construction or modification and the express terms of the settlement agreement control.” Sec. Ins. Co. of Hartford v. Puig, 728 So.2d 292, 294 (Fla. 3d DCA 1999). However, where the wording of an agreement is ambiguous, its interpretation involves questions of fact, precluding summary disposition and requiring an eviden-tiary hearing. Barone, 930 So.2d at 764.

Where a contract is susceptible to two different interpretations, each one of which is reasonably inferred from the terms of the contract, the agreement is ambiguous. Miller, 789 So.2d at 1097-98. In this instance, each side asserts that the terms of the settlement agreement are clear and unambiguous, albeit “the ‘only reasonable interpretation’ as seen by the appellants] is materially different from the ‘only reasonable interpretation’ advocated by the appellee[ ].” Okeelanta Corp. v. Bygrave, 660 So.2d 743, 747 (Fla. 4th DCA 1995)(quoting Royal Am. Realty, Inc. v. Bank of Palm Beach & Trust Co., 215 So.2d 336, 338 (Fla. 4th DCA 1968)). Based on our de novo review of the settlement agreement, we find that the terms thereof are susceptible to more than one reasonable interpretation, thereby rendering the settlement agreement ambiguous. We therefore conclude that the trial court erred in granting Giovannetti’s motion to enforce the settlement agreement without holding an evidentiary hearing to determine the intent of the parties. Accordingly, we reverse and remand to the trial court for an evidentiary hearing to resolve the ambiguity based on all of the relevant evidence bearing on the issue.

REVERSED and REMANDED.


author: SILBERMAN, Judge.

text:
    Nick Joseph MOLFETTO, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5073.
    District Court of Appeal of Florida, Second District.
    March 30, 2007.

      Deana K. Marshall of Law Office of Deana K. Marshall, P.A., Riverview, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Nick Molfetto challenges the postconviction court’s orders denying his original motion for postconviction relief. He also contends that the postconviction court erred by failing to consider the merits of his amended motions for postconviction relief. We affirm the denial of relief as to the original motion, but we reverse and remand for the postconviction court to consider the amended motions.

In 2001, the trial court entered its judgment and sentence against Molfetto following his conviction for several crimes. This court affirmed Molfetto’s direct appeal, and our mandate issued in May 2003. In October 2003, Molfetto filed his original motion for postconviction relief, raising twenty-three claims. In December 2004, he filed an amended motion, raising claim number twenty-four. In April 2005, he filed a second amended motion, raising claim number twenty-five. Molfetto’s motion and amended motions were timely filed within the two-year period provided for in Florida Rule of Criminal Procedure 3.850(b).

The postconviction court entered orders denying several claims raised in Molfetto’s original motion. In July 2005, the court entered an order granting an evidentiary hearing on other claims.

In September 2005, the court held the evidentiary hearing. At the start of the hearing, Molfetto’s counsel pointed out that the two additional claims raised in the amended motions remained pending. Counsel for the State indicated that the order granting the evidentiary hearing only addressed the claims contained in the original motion. The postconviction court declined to consider the amended claims, stating that it would proceed on the grounds from the original motion for which it had granted the evidentiary hearing. Following the hearing, the court entered its order denying relief as to the original motion. The court did not address claims twenty-four and twenty-five from the amended motions, and it appears the post-conviction court has never considered those claims.

We find no fault with the postcon-viction court’s decision not to consider the amended motions at the evidentiary hearing when they had not been set for hearing on that date. However, because the amended motions were timely filed and were pending when the postconviction court resolved the original motion, we reverse and remand for the postconviction court to consider the amended motions. See McAbee v. State, 873 So.2d 545 (Fla. 2d DCA 2004); Ramirez v. State, 854 So.2d 805 (Fla. 2d DCA 2003).

Regarding the original postconviction motion, we affirm the denial of relief under grounds one through twenty-one and ground twenty-three without comment. As to ground twenty-two, Molfetto claimed, among other things, that his trial counsel was ineffective for failing to seek dismissal of the felony petit theft charge because the record does not reflect that he has the requisite two prior grand theft convictions to support the enhancement of misdemeanor petit theft to felony petit theft pursuant to section 812.014(3)(c), Florida Statutes (1997). He also argued that even if he has prior grand theft convictions, they are insufficient to support the enhancement to felony petit theft because two prior petit theft convictions are required for enhancement. We disagree on both points.

First, the record reflects that Mol-fetto has two prior convictions for grand theft, one in case number 95-02779 and the other in case number 97-01521. Second, as to Molfetto’s argument that the two predicate convictions must be for petit theft rather than grand theft, he did not raise this issue in his motion for postcon-viction relief or at the evidentiary hearing. Thus, the argument is not preserved for review. Even if the argument were properly before us, it is without merit. Section 812.014(3)(c) provides that “[a] person who commits petit theft and who has previously been convicted two or more times of any theft commits a felony of the third degree.” (Emphasis added.) Section 812.014(3)(c) does not require two prior petit theft convictions. Molfetto’s reliance on State v. Jackson, 526 So.2d 58 (Fla. 1988), and its progeny is misplaced. Although Jackson held that two predicate petit theft convictions were required, the court was construing the 1985 version of section 812.014(2)(c) which specifically required two prior petit theft convictions as opposed to any theft convictions.

Accordingly, we affirm the denial of Molfetto’s original motion for postconviction relief, but we reverse and remand for the postconviction court to consider the two claims raised in Molfetto’s amended motions.

Affirmed in part, reversed in part, and remanded.

WALLACE and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Rayburn Lee WILLIAMS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D06-96.
    District Court of Appeal of Florida, Fifth District.
    March 30, 2007.
    Rehearing Denied May 15, 2006.

      James S. Purdy, Public Defender, and Tomislav David Golik, Assistant Public Defender, Daytona Beach, for Appellant.
    Rayburn Lee Williams, Florida City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

This is an Anders appeal in which we ordered supplemental briefs to address the propriety of the Habitual Violent Felony Offender [“HVFO”] designation. The State has responded and properly concedes that the designation is not proper because of the timing of the conviction. See § 775.084(5), Fla. Stat. (2005). We therefore strike the HVFO designation.

AFFIRMED as modified.

GRIFFIN, THOMPSON and MONACO, JJ., concur.


text:
    STATE OF FLORIDA, Appellant, v. ELIZABETH ILENE MONTGOMERY, et al., Appellees.
    No. 5D06-1194 & 5B06-1196.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2007.
    Rehearing Denied May 24, 2007.
    Bill McCollum, Attorney General, Tallahassee and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Meghan Ann Collins, Assistant Public Defender, Daytona Beach, for Appellees.
   PER CURIAM.

We reverse the order granting the defendant’s motion to suppress based on State v. Watt, 946 So.2d 108 (Fla. 5th DCA 2007), and remand the case to the trial court for further proceedings.

REVERSED and REMANDED.

SAWAYA, PALMER, and MONACO, JJ., concur.


text:
    Stephen N. MARTYAK, Appellant, v. Judith A. MARTYAK, Appellee.
    No. 4D06-4069.
    District Court of Appeal of Florida, Fourth District.
    April 11, 2007.
    Rehearing Denied June 4, 2007.

      John N. Buso of John N. Buso, P.A., West Palm Beach, for appellant.
    Peggy Rowe-Linn, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Cabana v. Mayo, 953 So.2d 587 (Fla. 4th DCA 2007).

STEVENSON, C.J., KLEIN and MAY, JJ., concur.


author: CASANUEVA, Judge.

text:
    GULF BAY LAND INVESTMENTS, INC., an inactive Florida corporation, Gulf Bay Land Investments, Inc., a foreign Corporation, Parcel J-I Development, Inc., an inactive Florida corporation, Parcel J-I Development, Inc., a foreign corporation, Appellants/Cross-Appellees, v. Janice M. TRECKER, James Bush, Patricia Bush, John Limpitlaw, Susan Limpitlaw, Daniel Grote, Jean Grote, Rose Kulak, Henry Price, Jeri Price, Don Richardson, and Pat Richardson, Appellees/Cross-Appellants.
    No. 2D05-6140.
    District Court of Appeal of Florida, Second District.
    April 11, 2007.

      Arthur J. England of Greenberg Trau-rig, P.A., Miami, Monterey Campbell, III, of Gray Robinson, P.A., Lakeland, Richard H. Critchlow and Amanda M. McGovern of Kenny Nachwalter, P.A., Miami, Edward K. Cheffy and Clay C. Brooker of Cheffy Passidomo Wilson & Johnson, Naples, for Appellants/Cross-Appellees.
    John T. Blakely, Robert G. Menzies and Marc A. Huling of Roetzel & Andress, LPA, Naples, for Appellees/Cross-Appel-lants.
   CASANUEVA, Judge.

Gulf Bay Land Investments, Inc. and Parcel J-I Development, Inc., defendants in the trial court, appeal an adverse judgment for permanent injunction precluding them from completing a residential eondo-minium project in Collier County. We find sufficient evidence in the record to support the trial court’s factual findings and no abuse of discretion in entering the permanent injunction. Therefore, we affirm the judgment for permanent injunction, which renders it unnecessary for us to address the issues on cross-appeal.

Defendants purchased a parcel of land in the Pelican Bay Planned Unit Development in Collier County from the original owner and developer, Westinghouse Communities of Naples, Inc. (WCN), intending to develop it as Waterpark Place. They originally planned to build four similar high-rise luxury residential condominiums; two of the four buildings, the St. Pierre and the St. Laurent, were constructed. Janice M. Trecker and the other appellees (Plaintiffs) are residents or owners of condominium units in these two buildings. After the St. Pierre and the St. Laurent were completed, and sensing a change in the preferences of luxury condominium buyers for larger units with higher ceilings, Defendants scrapped their plans for the remaining two buildings. Instead of two separate buildings, the new plan called for a “twin-tower one building complex,” to be named Cap d’Antibes. To achieve their goal, they also changed Waterpark Place’s site development plan and amended the parcel’s declaration of restrictions and protective covenants.

Two years after construction on the underground and ground level work of Cap d’Antibes had begun, Plaintiffs filed suit seeking a permanent injunction barring the construction of Cap d’Antibes. Plaintiffs asserted that the proposed project violated the minimum setback and four-building requirements in the 1990 protective covenants originally filed by WCN. The 1990 restrictive covenants required that the minimum distance between two unattached structures be one-half the sum of their heights or fifty feet, whichever is greater. Cap d’Antibes and its closest neighbor in Waterpark Place, the St. Laurent, are each about two hundred feet in height.

After a lengthy trial with numerous witnesses and documentary evidence, the trial court found in Plaintiffs’ favor. The court’s final judgment contained extensive factual findings and concluded that the project did not comply with the setback requirements of the restrictive covenants, either between Cap d’Antibes and its nearest neighbor or the parcel’s boundaries, or between the two towers. The court found that the proposed change in the project combined the last two not yet constructed buildings into two very large buildings on one common base and that each building’s footprint appeared to be double the size of the building it replaced. Defendants had also claimed that the original developer, WCN or its successor, who had retained certain approval rights to any amendment to Waterpark Place’s site development plan, had waived the setback requirements in a letter dated February 21, 2000. The trial court rejected this defense and found that the letter did not specifically approve any reduction in the setbacks required by the restrictive covenant. Even more important, the court found that the letter was not issued by WCN or its successors and does not constitute written approval of any reduction in the setback requirements required by the restrictive covenant.

The issue in this case is not whether Defendants’ proposed changes adhered to the original setback requirements (they did not) but whether the setback requirements were properly waived by the successor to the original developer. Without reweighing the evidence or substituting our judgment for that of the trial court on credibility, our task is to decide whether competent, substantial evidence supports the trial court’s factual finding that the February 21, 2000, letter was not issued either by WCN or one of its successors. Next, we review the trial court’s judgment for permanent injunction under the abuse of discretion standard. See Smith v. Coalition to Reduce Class Size, 827 So.2d 959, 961 (Fla.2002) (“To the extent it rests on factual matters, an order ... lies within the sound discretion of the trial court and will be affirmed absent a showing of abuse of discretion.”). We reject Defendants’ contention that because this case deals with the interpretation of deed restrictions and a contract the standard of review is de novo.

The February 21, 2000, letter is on the letterhead of “WCI Watermark Communities Inc.” It is signed by Elizabeth B. Whaley, whose title below her signature is “Administrator of Design Review.” It is addressed to Attorney Anthony P. Pires at his firm, Woodward, Pires & Lombardo, P.A., in Naples. Ms. Whaley makes two salient statements in this letter. First, she writes that pursuant to a 1998 amendment to the restrictive covenants, “WCI waived all requirements with regard to the development of this site plan and the construction of the Waterpark Towers Condominium project within Waterpark Place, with the exception of an exterior lighting plan. Thus, no approval is required and the project as designed may be constructed.” Second, she continued that WCI had nevertheless reviewed the revised site plan and found that it clearly depicted all intended setbacks, including all building locations, height, and widths, and the revised plan had “WCI’s complete approval.” Based on this review, she concluded that “the project may be constructed as depicted.”

On its face this letter does not indicate that Watermark Communities Inc. is a successor to WCN. At trial, Ms. Whaley was asked about this letter and the line of corporate succession. In her testimony, which can be characterized as ambivalent, she stated that she had been with “WCI Communities” as long as it had existed and that she had been “an employee of the former company, Westinghouse, and stayed with them.” Furthermore, she described the letterhead “WCI Watermark Communities Inc.” as “our letterhead at the time.” Her testimony on cross-examination failed to clarify the succession issue:

Q: So at the time you signed this letter, you signed it on behalf of WCI Watermark Communities, Inc., and that’s who you worked for at the time; is that correct?
A: You’ll have to ask someone in legal to answer that because I’m sorry, I don’t know the trail of the name.
Q: Okay. But you worked for WCI Watermark Communities, Inc., at some point in time?
A: Yes. Well, we used that letterhead. I don’t know that was an official name or not.

As this testimony illustrates, Ms. Whaley could provide no concrete evidence of a direct corporate succession from Westinghouse Communities of Naples, Inc. to WCI Watermark Communities Inc. Ms. Wha-ley suggested to her cross-examiner that he ask someone “in legal” to answer his question.

Laurel Sitterly, the paralegal who worked for WCI Communities, Inc.’s general counsel, and who had been employed by WCI Communities since 1988, testified on direct examination that WCI was the successor corporation to Westinghouse Communities of Naples, Inc. When asked again whether “Westinghouse Communities of Naples is now known as WCI,” she replied: “Yes.”

Ms. Sitterly’s testimony adds little to Ms. Whaley’s to pinpoint a precise line of corporate succession between Westinghouse Communities of Naples, Inc. and WCI Watermark Communities Inc. Rather, the corporate succession seems to be from Westinghouse Communities of Naples, Inc. to WCI Communities, Inc., not to WCI Watermark Communities Inc. This evidence supports the trial court’s conclusion that the February 21, 2000, letter was not signed by a representative of the corporate entity with the authority to agree to the reduction in setback requirements. In reviewing this evidence, we have taken care not to substitute our view of the witnesses’ testimony for that of the trial court, which was in a better position to measure and evaluate the strength of all this testimony.

In examining this issue, we have also reviewed the many documents admitted into evidence and have discovered no evidence sufficient to contradict the trial court’s findings. In particular, Defendants’ Exhibit 9, a May 2000 document titled “Amendment to Declaration of Restrictions and Protective Covenants for a Portion of Parcel ‘B’, Future Pelican Bay Unit Fifteen, Collier County, Florida (Wa-terpark Place),” contains this statement: “WCI Communities, Inc. a Delaware corporation (hereinafter referred to as “WCI”) is the successor to Westinghouse Communities of Naples, Inc.” Above the signature of the senior vice-president of the corporation who executed this document, the name of the corporation is listed as: “WCI Communities, Inc., f/k/a WCI Communities Limited Partnership f/k/a WCN Communities, Inc., f/k/a Westinghouse Communities of Naples, Inc.” Nowhere in this line of succession appears “WCI Watermark Communities Inc.”

Also, a 1994 “Third Amendment To Declaration Of Restrictions And Protective Covenants,” Defendants’ Exhibit 6, states: “This Third Amendment is made by WCN Communities, Inc., formerly Westinghouse Communities of Naples, Inc.” This document merely supports Defendants’ Exhibit 9, and neither document shows that WCN Communities, Inc. is the same as or an antecedent corporation to WCI Watermark Communities Inc.

In light of the conflicting nature or uncertainty of the evidence on the line of succession leading up to WCI Watermark Communities Inc., the entity that allegedly approved the reduction in setbacks, we conclude the trial court did not err in holding that Defendants failed to prove that the successor to WCN waived the requirements of the covenants.

Because the record supports the trial court’s factual findings that the setback requirements were not waived, we now must determine whether the trial court abused its discretion in enjoining further construction of Cap d’Antibes. “The appellate court should apply the reasonableness test to determine whether the trial judge abused his discretion, to wit, ‘discretion is abused only where no reasonable [person] would take the view adopted by the trial court.’ ” Allstate Ins. Co. v. Manasse, 707 So.2d 1110, 1111 (Fla.1998) (quoting Huff v. State, 569 So.2d 1247, 1249 (Fla.1990)); see also Krolick v. Monroe ex rel. Monroe, 909 So.2d 910 (Fla. 2d DCA 2005). Because Plaintiffs showed that the February 21, 2000, letter was neither authored by a successor corporation that had the authority to waive the setback requirements nor that the letter did, in fact, waive those requirements, we conclude that the trial court did not abuse its discretion in granting the permanent injunction.

The other contention Defendants advanced in the trial court and on appeal is that Plaintiffs waived their right to injunc-tive relief by delaying their suit for more than two years after construction of Cap d’Antibes began. The trial court ruled that there is no factual or legal basis to support the waiver and/or estoppel and/or selective enforcement defenses asserted by Defendants. Our exhaustive review of the record in this case leads us to the conclusion that the trial court did not err in this finding either.

Because the record supports the trial court’s findings and the trial court did not abuse its discretion in granting the permanent injunction, we affirm the trial court’s order in toto. The cross-appeal is dismissed as moot.

ALTENBERND and VILLANTI, JJ„ Concur.

      . A disputed issue at trial was whether Cap d'Antibes is one building or two. The description we use here is one used by the vice-president of Gulf Bay Construction Co. (Defendants’ Exhibit 18) when giving notice to WCI Communities, Inc. of the proposed amendment to the community’s declaration of restrictions and protective covenants. The trial court's order does not specifically say that it found that Cap d’Antibes is two buildings, but such is a strong inference from the language the trial court used. However, whether Cap d’Antibes is one or two buildings does not affect our disposition.

      . The "WCI” on the letterhead is in a much larger and bolded font type than what follows it, "Watermark Communities Inc.” The letterhead thus strongly suggests that WCI stands for that company's initials.

      . “Waterpark Towers Condominium” was the name first used for what eventually became "Cap d'Antibes.”

      . Had we disagreed with the trial court and concluded that WCI Watermark Communities Inc. was a successor, we still would have found sufficient support in the record for the trial court's further finding that the February 21, 2000, letter did not constitute written approval of any reduction in the setback requirements required by the restrictive covenant.


author: FULMER, Chief Judge.

text:
    Douglas OLDS, Appellant, v. DEPARTMENT OF REVENUE o/b/o Cindy Seals, Appellee.
    No. 2D05-1162.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.
    Douglas Olds, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Toni C. Bernstein, Assistant Attorney General, Tallahassee, for Appel-lee.
   FULMER, Chief Judge.

Douglas Olds challenges an order denying his motion for rehearing in a proceeding involving the calculation of a child support arrearage. We reverse for further proceedings because the record does not support the conclusion that the motion was untimely and because, on the merits, the hearing officer failed to make the required findings of fact to enable meaningful review of the arrearage calculation.

Olds filed a motion in October 2004 requesting that the social security disability derivative benefits received by his child be applied against Olds’ child support obligation. The hearing officer entered a recommended order, which the trial court adopted on December 9, 2004, finding that Olds was meeting his child support obligation through the social security benefits but stating that an arrearage was adjudicated at $1052 and ordering payment of $10 per month. Olds challenged the calculation of the arrearage in his motion for rehearing. In a recommended order of March 14, 2005, which was adopted by the trial court, the hearing officer determined, first, that Olds’ motion for rehearing should be denied because it was not timely filed and, second, that the motion should be denied because the arrearage was calculated correctly.

Olds first asserts that the trial court erred in determining that his motion was untimely. The Department properly concedes that the trial court did not apply the correct standard in ruling that the motion was untimely filed. We will therefore address Olds’ claims on the merits.

Olds argues that the trial court erred in calculating the child support ar-rearage of $1052. The Department argues that this court must affirm because Olds has not provided the transcript of the February 2, 2005, hearing, which was held on Olds’ motion for rehearing before the hearing officer. We reject the Department’s argument as premature.

The hearing officer was required to set forth findings of fact and conclusions of law in the recommended orders submitted to the trial court. See Fla. Fam. L.R.P. 12.491(e)(4) (providing that the hearing officer’s recommended order to the court “shall set forth findings of fact”). The hearing officer’s proposed order from the November 18, 2004, hearing, which the trial court adopted on December 9, 2004, includes no findings justifying the $1052 arrearage. The hearing officer’s proposed order on the motion for rehearing held February 2, 2005, which the trial court adopted on March 14, 2005, states that “upon review it appears Respondent was given all appropriate credits at the 11 — 18— 04 hearing.” It is not clear what evidence the hearing officer reviewed or relied upon to make either determination.

Because there were no factual findings set forth by the hearing officer to support the arrearage, there could not have been meaningful review in the trial court. We therefore reverse the order denying Olds’ motion for rehearing and remand for the trial court to make or adopt findings to justify the arrearage calculation. If Olds then disputes the findings that the trial court makes or adopts, it may be necessary for him to obtain a transcript to effectively challenge the findings.

We reject Olds’ arguments regarding the deductions of $43.40 and $10 from his disability benefits. There is no indication in this record of any order deducting $43.40, and we agree with the Department that such deduction is not a proper subject of this appeal. The deduction of $10 has been authorized by the order under review.

Reversed and remanded for further proceedings.

CASANUEVA and STRINGER, JJ., Concur.

      . The Department acknowledges that under Florida Rule of Civil Procedure 1.530 timeliness is determined by service on the opposing party, rather than filing date. The rule provides that a motion must be served on the opposing party not later than ten days after the date of filing of the judgment. Here, the record does not reflect a service date and there is no indication that the hearing officer made a finding as to the service date.


text:
    I.M., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-6322.
    District Court of Appeal of Florida, First District.
    April 26, 2007.

      Nancy A. Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this juvenile delinquency case, appellant challenges a restitution order, contending that the trial court erred (1) in holding a restitution hearing in appellant’s absence and (2) ordering restitution without determining the amount appellant might reasonably be expected to pay. We agree and, accordingly, reverse the restitution order and remand for a new restitution hearing.

Appellant was absent from one hearing during which, over an objection by appellant’s counsel, the trial court heard testimony and determined the amount of restitution. A juvenile has a constitutional right to be present at hearings to determine the imposition and amount of restitution absent a voluntary and intelligent waiver of that right. E.g., M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So.2d 1233, 1234-35 (Fla. 2d DCA 2005); J.B. v. State, 646 So.2d 808 (Fla. 1st DCA 1994). Because appellant was not present and there is nothing to suggest a voluntary and intelligent waiver, he is entitled to a new restitution hearing. See M.W.G., 945 So.2d at 600; T.A.S., 892 So.2d at 1235.

The trial court ordered the future payment of restitution without allowing appellant to present evidence as to his future ability to pay or making an express finding regarding future ability to pay. This, too, was error. While a court may order an unemployed or incarcerated delinquent child to pay restitution without a showing of present ability to pay, it must determine what the child might reasonably be expected to earn upon finding suitable employment and base the amount of restitution on those anticipated earnings. E.g., M.W.G., 945 So.2d at 601; R.D.S. v. State, 844 So.2d 720, 720-21 (Fla. 2d DCA 2003); A.J. v. State, 677 So.2d 935, 938 (Fla. 4th DCA 1996); J.A.M. v. State, 601 So.2d 278 (Fla. 1st DCA 1992); J.M.H. v. State, 589 So.2d 394, 395-96 (Fla. 1st DCA 1991).

We reverse the restitution order and remand with directions that the trial court conduct a new restitution hearing.

REVERSED and REMANDED, with directions.

ALLEN, WEBSTER, and BENTON, JJ., concur.


author: PADOVANO, J.

text:
    Eric WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3690.
    District Court of Appeal of Florida, First District.
    April 30, 2007.

      Nancy A. Daniels, Public Defender, and Kathleen A. Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Felicia A. Wilcox, Assistant Attorney General, and Robert R. Wheeler, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

In this criminal appeal, the defendant contends that the trial judge erred in excusing a juror and replacing her with an alternate. The trial judge permitted the jurors to submit questions to be asked of the witnesses but removed the juror in controversy on the ground that her questions violated the court’s instructions. This, we conclude, was an abuse of discretion. Although the juror asked many questions, there was nothing in her questions to suggest that she intended to disobey the trial court’s instructions or that she was otherwise unable to serve as a fair and impartial juror. Because the error in removing the juror was not harmless, we reverse the defendant’s convictions and remand the case for a new trial.

The defendant, Eric Washington, went into the Tallahassee State Bank on December 23, 2003, to exchange some coins for paper currency. Bank officials suspected that the coins were counterfeit or that they might have been stolen, and the ensuing confrontation led to the defendant’s arrest. The state did not charge the defendant with any offense relating to the coins, but the incident at the bank resulted in other criminal charges. The state filed a three-count information accusing the defendant of resisting arrest with violence, possession of cocaine and possession of marijuana.

At the beginning of trial, the judge informed the jurors that they would be permitted to ask questions of witnesses after the attorneys had completed their examination. The judge told the jurors that they could write questions on a piece of paper but that they should not include their names or juror numbers. The pertinent part of the judge’s instruction is as follows:

Because questioning witnesses is the primary responsibility of the attorneys, you are not encouraged to ask large numbers of questions. Keep in mind that the attorneys know the case better than you or I and each of them will be attempting to place before you all the evidence needed to assist you in reaching a proper verdict.
If you do opt to ask any questions, keep in mind that the questions must be directed to the witness and not to the attorneys or to myself. The purpose of the question should be to clarify the evidence, not to explore theories of your own, nor to discredit a witness.

The first witness, Nicole Hill, a teller, testified that the defendant told her the coins were twenty-dollar gold coins. Ms. Hill passed the coins to her supervisor, Ms. Glenn Parramore, who then summoned the security officer, Leon County Deputy Sheriff Toby Bruce. Deputy Bruce took the defendant to an empty office, and a short time later Ms. Hill saw the defendant running out of the office with Deputy Bruce and another officer in pursuit. The other officer grabbed the defendant’s jacket, but the jacket came off, and the defendant continued running. The three men ran out of Ms. Hill’s line of sight, but she could hear the defendant yelling in a scared voice, “Please help me, I didn’t know they were stolen, I’m hungry, I just wanted food.”

When the attorneys finished questioning Ms. Hill, the trial judge asked if jurors wanted to write down any questions, adding, “Don’t make any comment on the facts.... Simply a question, if you need some clarification.... You will get the ‘what happened next’ from the other witnesses. So this would just be to clarify what this witness said.” Outside the jury’s hearing, the judge indicated that he had been given a question: “What happened to the video camera and the drugs?” The judge said he presumed Ms. Hill could not answer, so he declined to ask.

Ms. Glenn Parramore, the assistant vice president of the bank, gave an account similar to the one given by Nicole Hill. Ms. Parramore was questioned in more detail about the bank cameras. She testified that there were thirteen cameras positioned in the bank. She added, however, that the cameras rotate and that they would not necessarily cover every part of the bank lobby at every moment.

When the lawyers had finished questioning Ms. Parramore, the trial judge received the following questions from a juror: “Where are the cameras from that day? Where did he get the coins from? Were the coins stolen? Why didn’t they ask him to leave?” After consulting with counsel, the trial judge asked only the first question, whether the bank still had the videotape from that day. Ms. Parramore said they did not, because they record over their videotapes every six weeks. The videotape for that day was recorded over, because the bank was not considered a victim in this case and the bank officers did not realize they needed to keep it.

After Ms. Parramore was excused, the trial judge instructed the jurors once again on the procedure he wanted them to follow in asking questions:

All I want is a question. And remember the question needs to be just to clarify this witness’ testimony. Don’t send us questions about something this witness doesn’t know anything about as to what some other witness might know. If you need clarification of the subject matter of this witness’ testimony, feel free to ask. But, obviously, for instance, her testimony was she didn’t talk to the defendant, don’t ask questions about what he said. I mean, those kind of things, it would have to be by some other witness. It just eats up time if we are asking questions that aren’t to clarify this witness’ testimony.

Deputy Toby Bruce testified that the defendant told him he found the coins on a shelf in an apartment. According to Deputy Bruce, the defendant was nervous, jittery and hyper. Deputy Bruce called Sergeant Steve Harrelson, who was more familiar with coins. He also called the dispatch operator to get more information about the coins and to run a routine check on the defendant. As Sergeant Harrelson was arriving, the dispatch operator told Deputy Bruce that there was an outstanding arrest warrant for the defendant for failure to pay child support. At that point, the defendant jumped up and ran from the office.

The officers chased the defendant through the lobby of the bank. Sergeant Harrelson grabbed the defendant by his jacket, the jacket came off, and the defendant continued to run. The officers managed to subdue the defendant, but by that time he was down a hallway of the bank, beyond the view of those who were in the lobby. Deputy Bruce testified that he and Sergeant Harrelson had their hands on the defendant and they all went down to the floor. The defendant then began “flailing his arms and legs, kicking his legs about,” and Deputy Bruce was kicked several times. Deputy Rick Parraro, who had arrived at the scene by then, handcuffed the defendant. The officers found cocaine in the defendant’s jacket and later found marijuana on his person when he was booked into the jail.

When the attorneys finished questioning Deputy Bruce, the trial judge informed them that he had received the following juror questions: “Did Mr. Washington take his jacket off or did it come off during the struggle? Please show on the diagram where the jacket came off. At what point was Mr. Washington placed under arrest? On what charges? Why didn’t the officer allow Mr. Washington to explain or acknowledgment of the warranty [sic]. What was the officer’s reason for placing handcuffs on Mr. Washington? Was Mr. Washington told he was under arrest? If so, why?” The trial judge reviewed these questions with the lawyers and then asked Deputy Bruce when the defendant was placed under arrest, the charges against him, when and why he was handcuffed, and when the jacket came off. The judge said he was paraphrasing some of the questions, because they were “convoluted,” and that he was allowing questions on matters the witnesses had already covered, so long as there was no objection.

Sergeant Harrelson testified that he went into the office where Deputy Bruce and the defendant were sitting and heard Bruce make a comment on the telephone using the number 49, which is a law enforcement code indicating that the person has an outstanding warrant. Sergeant Harrelson asked the defendant about the coins, and he appeared to be nervous. At that point, the defendant’s cell phone rang. He talked on the phone briefly, hung up and ran out of the office. Harrelson related the rest of the story in generally the same way as Deputy Bruce had and he described the area where the officers finally apprehended the defendant as a small alcove.

The following juror questions were submitted for Sergeant Harrelson: “Were the coins stolen? Why wasn’t Mr. Washington told what 49 meant? When Mr. Washington first left the office, were verbal commands to stop issued?” The trial judge asked only the second and third questions. Sergeant Harrelson answered these by saying that he did command the defendant to stop but did not tell him what code 49 means. He explained that officers do not ordinarily want a suspect to know that they are aware of the existence of warrants.

Deputy Rick Parraro testified that when he arrived on the scene, Sergeant Harrel-son and Deputy Bruce had the defendant on the floor trying to handcuff him. He was kicking and screaming, saying he wasn’t going to jail and refusing to walk on his own. When the two officers picked him up and carried him to the patrol car, he refused to get in and he was kicking his legs, flailing, jerking and screaming. Deputy Parraro sprayed the defendant with pepper spray in an effort to get him under control. Once the defendant was in the car the officers put a hobble restraint around his feet to hold them together.

The following questions were submitted for Deputy Parraro: “How could Mr. Washington be fighting back with handcuffs on and hobbles on his feet? Who witnessed the jacket being searched? Was Mr. Washington told if he didn’t [calm] down that he would be sprayed? Why was Mr. Washington’s coat later searched?” The trial judge then said, “I will note for the record this series of questions come from juror McCoy. I have noted throughout the questioning that juror McCoy has repeatedly asked questions that were hostile, argumentative questions, not following the Court’s instructions on questioning. We’ll monitor the rest of the trial, but in all probability I’m going to take Ms. McCoy off the jury and substitute the alternate.”

Michelle Garber, a crime-lab analyst with the Florida Department of Law Enforcement, said she tested the suspected contraband and identified less than one gram of cannabis and half a gram of cocaine. She said the evidence was properly labeled and, when she was finished testing it, she returned it to the evidence technician. Ms. Garber testified that the evidence came in as a “rush case,” because it was headed for trial.

The trial judge informed the lawyers that there were three questions from juror McCoy that were not entirely clear but that the judge interpreted as, “Why was this evidence rushed? Was the evidence tampered? [sic] Why wasn’t all items fingerprinted? [sic].” The judge declined to ask any of the questions.

Tina Rivers, evidence custodian for the Leon County Sheriffs Department, testified about the procedures for destroying evidence. Her records showed that the cannabis and cocaine in this case had been destroyed. She did not remember who instructed her to dispose of these items but said it could have been an oral directive. Ms. Rivers also identified a subsequent order from the court approving destruction of the evidence. She said that destroying the evidence was a mistake, because this case had not been completed.

This testimony prompted another series of questions from juror McCoy: “What was [destroyed]? Why did the officer order the evidence to be destroyed verbally? Was the officer hiding something? Or covering up something?” Ms. Rivers said that she was not sure when the evidence was destroyed.

Sergeant Barry Blackburn, a Leon County Sheriffs Deputy and supervisor of the crime scene unit, testified that evidence is destroyed when it is no longer of any value. Sergeant Blackburn said that the evidence in this case was burned on February 2, 2005, which was a very unusual mistake. He believed the authorization must have been verbal and he explained further that the policy had since been changed to require written authorization.

The judge read to the attorneys a question from juror McCoy: “If this evidence has been closed and destroyed why is Mr. Washington being charged? There is no evidence or proof? [sic]” Deputy Bruce was recalled to the stand and did not know anything about why the evidence was destroyed. The court declined to ask the following question from juror McCoy: “Why is it that the only way to destroy evidence would be for the officer to call and have this done or judge ... ?[sic]”

The state rested and the defendant took the witness stand in his own defense. He told the jury that he found the coins on a closet shelf shortly after moving into a new apartment. He admitted that he tried to leave the bank but denied that he had physically resisted the officers at any time. When asked whether he was carrying any drugs when he went to the bank that day, the defendant replied that he was not.

When all of the testimony had been presented, the trial judge informed the lawyers that he intended to excuse juror McCoy. The trial court explained,

... [T]he only thing I need to decide is, as to Ms. McCoy, it’s my intention to replace Ms. McCoy with the alternate and tell Ms. McCoy she does not need to return.
I wasn’t originally paying too much attention to it, as to who was asking the questions and the nature of the questions, but since I began paying more attention to it, of the last seven witnesses that were called, my recollection is that Ms. McCoy was the only juror that asked any questions, a large majority of the questions asked by her were contrary to my instructions, showed a total lack of understanding of the testimony that had been presented, were generally argumentative and hostile questions.
I don’t think she is an appropriate juror to sit on this case. We have Ms. Thompson, who is our alternate. And I really don’t see any reason to bring Ms. McCoy back, just to excuse her at the end of the day tomorrow. But I’ll let y’all be heard on that.

Defense counsel objected to this proposal and argued that the juror had not given any indication that she could not be fair. He also noted that the judge’s practice of allowing jurors to ask questions of witnesses was “very unusual,” in that it enabled the court to “look into the thought patterns of the jurors.” The objection was overruled.

At that point the trial judge explained how he knew that the questions had been submitted by juror McCoy:

It may be a little puzzling how we know exactly which juror [is asking the questions]. It became very obvious because she was the only one writing questions. I think the handwriting is clear on the notes that they are all by the same juror. And there were at least three or four occasions where she was the only one writing questions at the end.

The trial judge excused juror McCoy from further service in the case and replaced her with an alternate juror. Following the closing arguments and jury instructions, the newly reconstituted jury panel retired to deliberate. The jury found the defendant guilty of resisting an officer with violence, not guilty of possession of cocaine and guilty of possession of marijuana. The trial judge sentenced the defendant to a term of imprisonment, and he now appeals to this court.

We begin by stating a principle that is not in dispute. Florida trial judges have discretion to allow jurors to submit questions to be asked of witnesses. See Morris v. State, 931 So.2d 821 (Fla.2006); Watson v. State, 651 So.2d 1159, 1163 (Fla.1994); Ferrara v. State, 101 So.2d 797 (Fla.1958). In these decisions, the Florida Supreme Court has authorized the practice, but it is important to point out that the court did not endorse it. The existence of discretionary authority to allow jurors to ask questions does not imply that juror questions must be allowed or even that they should be allowed.

This case presents a good example of the kinds of problems that can arise if the trial judge permits jurors to submit questions to be asked of the witnesses. The jurors may not fully understand the technical limits the judge has placed on their right to ask questions, they may ask more questions than the trial judge expected, and their questions may be ambiguous or confusing. Jurors do not know the rules of evidence or the procedures that must be followed in a trial. A question that seems proper to a juror may be regarded by the court or counsel as improper.

In addition to these general concerns, a question submitted by a juror may inadvertently open a window into the thought process of the juror. That might work against a juror who is simply attempting to get relevant information. Judges and lawyers ordinarily have no right to know what jurors are thinking during the course of a trial. If a question reveals that a juror is leaning one way or the other, and if that juror is subsequently removed from the panel, someone will inevitably question whether the juror was removed for the stated reason or because of the way the juror was leaning.

In the present case the state argues that a trial judge has discretion to remove a sitting juror for misconduct. We have no quarrel with this general proposition, but the fallacy in the state’s argument is that it assumes juror McCoy committed some act of misconduct. She did not. The trial judge believed that she had violated his instruction to limit the questions to those that would clarify a point. However, juror McCoy may have thought that she was merely seeking clarification. Perhaps the points that were not yet fully explained to her satisfaction had been covered in enough detail for the trial judge, but there is nothing in the record to suggest that juror McCoy was deliberately disobeying the trial judge’s instruction.

It is also possible that she was confused by the subsequent instruction given during the course of the testimony. After fielding the questions that had been directed to the first few witnesses, the judge told the jury, “Don’t send us questions about something this witness doesn’t know anything about as to what some other witness might know.” This instruction may have been difficult for any juror to follow. Unlike the lawyers, who have investigated the case and prepared for trial, the jurors are hearing the evidence for the first time. They cannot be expected to know what a particular witness knows or does not know.

The state argues that juror McCoy’s questions revealed a bias in favor of the defendant. We reject this argument, as well. Juror McCoy appears to have been skeptical of the state’s witnesses, but that does not mean that she could not be fair. Jurors are told that the defendant is presumed to be innocent and that the state has the burden of proving guilt beyond a reasonable doubt. It should come as no surprise then that some of them will have critical questions about the state’s evidence. Surely a juror does not demonstrate unfairness merely by asking sharp questions.

Moreover, given the series of blunders in the investigation of this case, we certainly could not conclude that juror McCoy’s skepticism was unreasonable. The police officers accidently destroyed the marijuana and the cocaine; the bank failed to retain the videotape from any of the thirteen cameras taking pictures in the lobby that day; and the defendant was not even charged with possession of stolen coins, the suspected offense that set all of these events in motion. Under these circumstances, any juror might have been doubtful. Juror McCoy asked a number of questions about the search of the defendant’s jacket and the discovery of the cocaine. The fact that the jury found the defendant not guilty of possession of cocaine suggests that juror McCoy was not the only one who had doubts about this charge.

Jurors are told that they must not form any definite or fixed opinion about the merits of a case until they have heard all of the evidence, the arguments of the attorneys and the instructions on the law. See Fla. Std. Jury Instr. (Crim) 2.1. There is nothing in the record to suggest that juror McCoy violated this instruction. She may have been forming impressions as she was hearing the evidence, but we do not know what she may have thought after hearing the entire case and discussing it with the other jurors. It would be unrealistic to assume that jurors do not form impressions as they are hearing evidence. That is not improper, so long as the juror does not decide the case before it is concluded.

It is true that juror McCoy asked many more questions than the judge was expecting, but that does not qualify as misconduct. In his initial instruction, the judge said, “You are not encouraged to ask a large number of questions.” This was not a command to limit the questions to a certain number. Perhaps juror McCoy’s idea of “a large number” was different from that of the trial judge. In any event, a judge who invites jurors to ask questions is not in a good position to remove a juror on the ground that a juror has asked too many questions. If juror questioning gets out of hand, the judge can stop it altogether; but that was not done here.

A party seeking to remove a juror for improper behavior in the course of a trial must first show that the juror’s actions amount to misconduct. See State v. Hamilton, 574 So.2d 124, 129 (Fla.1991); Ramirez v. State, 922 So.2d 386, 389 (Fla. 1st DCA 2006). Here, the trial judge removed the juror in the absence of a request by a party, but the standard is no different. Whether removal is initiated by a party or by the trial judge, a finding of misconduct requires evidence that the juror violated an order or instruction by the court.

If a juror has visited the scene of the crime, read news accounts of the crime or spoken to a witness out of court, the violation would be obvious, and the only matter left for the exercise of discretion would be to determine the appropriate remedy. In contrast, juror McCoy’s conduct was not clearly shown to be a violation of any order or instruction. Whether her questions were too numerous or too suggestive are very subjective issues. To say that she was guilty of misconduct would require a characterization that is a matter of opinion.

We are particularly unwilling to approve of the disqualification of a juror in a case in which the juror did not have an opportunity to respond to the claim of juror misconduct. The trial judge could have questioned juror McCoy to determine whether she thought that her questions complied with the questioning procedure or whether she was deliberately violating the procedure. Many potential issues of juror misconduct can be diffused in this way. See, e.g., England v. State, 940 So.2d 389 (Fla.2006) (after questioning the juror, the trial judge determined that the juror had not expressed a premature opinion of guilt); Coleman v. State, 484 So.2d 624 (Fla. 1st DCA 1986) (after questioning jurors, the trial court determined that they had not read newspaper articles in violation of a court order); Alfonso v. State, 443 So.2d 176 (Fla. 3d DCA 1983) (the trial judge questioned a juror and determined that he did not have improper contact with a police officer during the course of the trial). In contrast, the trial judge in the present case did not question the juror. The assumption that she had prejudged the case or could no longer be fair to the state is therefore unsupported by the record.

In some instances an error in removing a juror can be treated as harmless, if the juror is replaced by a duly selected alternate. For example, this court concluded in Orosz v. State, 389 So.2d 1199 (Fla. 1st DCA 1980), that any error in removing a sleeping juror was harmless, because the juror was replaced with an alternate selected during voir dire. However, this reasoning cannot be applied here. It would make little sense to conclude that it is error to reconfigure the jury panel based on nothing more than the perceived impressions a juror holds about the case, but that the error does no harm because the parties had previously selected the alternate juror. In this situation, the reconfiguration of the jury panel is the very error that must be corrected.

Another aspect of the problem presented by this case is that the other jurors may have suspected that juror McCoy was excused because she asked too many questions and was too critical of the state’s case. Given the sequence of events, the remaining jurors also might have inferred that the trial judge believed the defendant was guilty. Of course, this is an impression that trial judges work very hard to avoid. At the conclusion of every criminal trial, the judge tells the jury, “Please disregard anything I may have said or done that made you think I prefer one verdict over another.” Fla. Std. Jury Inst. (Crim) 3.11. The jury is not to be influenced by the trial judge’s opinion. Yet the removal of a juror who has asked questions may signal to the remaining jurors that the judge did not like the questions. From this, they may infer, correctly or incorrectly, that the judge holds a particular view of the case.

We are very concerned about the precedent we would be setting were we to approve of the decision the trial court made here. The judge in this case undoubtedly had good intentions, but it may look to others as though he manipulated the jury panel based on his own perception of a juror’s questions. The judge and jury each have different functions, and there are good reasons to ensure that they remain separate. The credibility of the process would be undermined if it appeared that a judge was deciding which jurors could serve based on the inclinations they may have shown by their questions.

Because the error in excusing juror McCoy is alone sufficient to warrant reversal, we need not resolve any of the other issues presented on appeal. However, our failure to address the other points should not be taken as approval. If the defendant testifies in the trial on remand, the prosecuting attorney should not be permitted to ask him if the state’s witnesses are lying. Nor should she be permitted to ask the defendant where he obtained the money to post bail or any other irrelevant question designed to impeach him on a collateral matter.

Reversed and remanded.

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