author: CANTERO, J.

text:
    Russell Owen INSKO, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1619.
    Supreme Court of Florida.
    Sept. 20, 2007.
    Rehearing Denied Nov. 26, 2007.

      James Marion Moorman, Public Defender, and Maureen E. Surber, Assistant Pub-lie Defender, Tenth Judicial Circuit, Bar-tow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Susan D. Dunlevy, Assistant Attorneys General, Tampa, FL, for Respondent.
   CANTERO, J.

We must decide whether, for purposes of a statute outlawing lewd or lascivious conduct, the defendant’s age is an element of the crime or a potential sentencing enhancement. If age is an element of the crime, then it must be alleged in the indictment or information, proven at trial, and found by the jury. If it is a potential sentencing enhancement, then, after the jury’s verdict on guilt, a judge may consider it in determining whether to enhance the sentence. The Second District Court of Appeal held that it was a potential sentencing enhancement, see Insko v. State, 933 So.2d 679 (Fla. 2d DCA 2006) (Insko II), but certified to us a question of great public importance. Id. at 682-83. We granted review to answer the question. See Insko v. State, 937 So.2d 122, (Fla. 2006). As we explain below, we hold that the age of the defendant is an element of the crime. Because we find that Insko waived the issue, however, we approve of the Second District’s affirmance of the judgment in this case.

I. STATEMENT OF FACTS AND PROCEDURE

Insko was charged with lewd or lascivious conduct, in violation of section 800.04(6)(a)(2) and (b), Florida Statutes (2001). Under this provision, a person age eighteen or older who solicits a person under age sixteen to commit a lewd or lascivious act commits a second-degree felony punishable by up to fifteen years’ imprisonment. The jury was instructed that the State had to prove two elements beyond a reasonable doubt: that the victim was under age sixteen and that Insko solicited the victim to commit a lewd or lascivious act. The court also instructed the jury as follows:

The punishment provided by law for the crime of lewd or lascivious conduct is greater depending on the age of the defendant. Therefore, if you find the defendant is guilty of lewd or lascivious conduct, you must determine by your verdict whether at the time of the offense: (a) the defendant was eighteen years of age or older; (b) the defendant was under the age of eighteen years.

The verdict form provided four alternatives: (1) guilty of Lewd or Lascivious Conduct (Solicit) (defendant eighteen years of age or older) as charged, a second-degree felony; (2) guilty of Lewd or Lascivious Conduct (Solicit) (defendant under eighteen years of age), a third-degree felony; (3) assault, a lesser-included offense Insko requested; and (4) not guilty. The jury chose the second alternative (defendant under eighteen years of age), and the court sentenced Insko to five years in prison.

Insko appealed, arguing that he was entitled to a new trial because the trial court allowed prejudicial evidence of prior bad acts. Insko v. State, 884 So.2d 312, 313-14 (Fla. 2d DCA 2004) (Insko /). The district court agreed and reversed for a new trial. Id. On remand, double jeopardy principles prevented a retrial for the offense of which Insko had been acquitted— lewd or lascivious conduct by a defendant at least eighteen years old. Before the retrial, Insko filed a motion to dismiss. Presenting a birth certificate showing that he was thirty-three years old at the time of the offense, Insko argued he could not be retried for the offense of which he had been convicted — lewd or lascivious conduct by a defendant under eighteen. The trial court concluded, however, that the age of the defendant was a potential sentencing enhancement, not an element of the crime, and therefore the fact that he was thirty-three years old did not prevent a retrial. Insko entered a plea to the third-degree offense, reserving the right to appeal the issue.

On appeal, the Second District followed “the determination made in Desbonnes[ v. State, 846 So.2d 565 (Fla. 4th DCA 2003)], which concludes that the age of the offender is not an element of the offense of lewd or lascivious conduct.” Insko II, 933 So.2d at 682-83. The court certified the following question as one of great public importance: “In light of the ruling in Glover v. State, 863 So.2d 236 (Fla.2003), is the age of the offender an element of the offense of lewd or lascivious conduct under section 800.04(6), Florida Statutes?”

Below, we first consider the certified question. We then address Insko’s claim of entitlement to a discharge.

II. ELEMENT OR SENTENCING FACTOR?

In this case, we consider whether the age of the defendant is an element of the crime of lewd or lascivious conduct or a sentencing factor. In criminal law, whether a fact constitutes an element of a crime carries constitutional implications. Historically, the “elements of a crime” are the facts “ ‘legally essential to the punishment to be inflicted.’ ” Harris v. United States, 536 U.S. 545, 561, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (plurality opinion) (quoting United States v. Reese, 92 U.S. 214, 232, 23 L.Ed. 563 (1876) (Clifford, J., dissenting)). Thus, to apprise the accused of the specific charges against him, an information or indictment must contain all facts essential to the “offence intended to be punished.” United States v. Carll, 105 U.S. 611, 612-13, 26 L.Ed. 1135 (1881) (noting that the indictment should “set forth all the elements necessary to constitute the offence intended to be punished”); State v. Dye, 346 So.2d 538, 541 (Fla.197.7) (“An information must allege each of the essential elements of a crime to be valid.”); Fla. R.Crim. P. 3.140(d)(1) (“Each count of an indictment or information on which the defendant is to be tried shall allege the essential facts constituting the offense charged.”); see also Hamling v. United States, 418 U.S. 87, 117, 94 S.Ct. 2887, 41 L.Ed.2d 590 (1974) (stating that although the language of a statute may be sufficient to generally describe an offense, the indictment must contain the facts and circumstances of the specific offense charged). Further, the “Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970).

Of course, the legislature has full authority to define the elements of a crime. See State v. Giorgetti, 868 So.2d 512, 516 (Fla.2004). In doing so, however, it “must still ‘act within any applicable constitutional constraints in defining criminal offenses.’ ” Id. (quoting Liparota v. United States, 471 U.S. 419, 424 n. 6, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985)). Thus, for example, the legislature may not evade these constitutional requirements by redefining elements and denominating them as “factors that bear solely on the extent of punishment.” Mullaney v. Wilbur, 421 U.S. 684, 697-98, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975) (noting that the criminal law is “concerned not only with guilt or innocence in the abstract but also with the degree of criminal culpability” and finding unconstitutional Maine’s requirement that the defendant prove that a killing occurred in the heat of passion).

The issue of whether a particular fact is an element of the crime or a sentencing factor has been rendered somewhat academic after Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). Before that case, as stated above, if a fact was an element of the crime, it had to be submitted to the jury and proven beyond a reasonable doubt. If it was a sentencing factor, however, a judge could determine the fact at sentencing. In Ap-prendi, the Court noted that “[a]ny possible distinction between an ‘element’ of a felony offense and a ‘sentencing factor’ was unknown to the practice of criminal indictment, trial by jury, and judgment by court as it existed during the years surrounding our Nation’s founding.” Apprendi, 530 U.S. at 478, 120 S.Ct. 2348 (footnote omitted). Based on American jurisprudence, the Court stated that “[t]he judge’s role in sentencing is constrained at its outer limits by the facts alleged in the indictment and found by the jury,” meaning that “facts that expose a defendant to a punishment greater than that otherwise legally prescribed were by definition ‘elements’ of a separate legal offense.” Id. at 483 n. 10, 120 S.Ct. 2348. Rejecting New Jersey’s argument that the finding under the statute in that case was a sentencing factor, the Court stated that the legislature’s placement of the provision in its sentencing provisions was not determinative and noted that the effect of the “enhancement” was “to turn a second-degree offense into a first degree offense, under the State’s own criminal code.” Id. at 494, 120 S.Ct. 2348. Accordingly, the Court held that “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490, 120 S.Ct. 2348 (citing Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999)). Regarding facts that form the basis for sentencing a defendant, the Court warned that “when the term ‘sentence enhancement’ is used to describe an increase beyond the maximum authorized statutory sentence, it is the functional equivalent of an element of a greater offense than the one covered by the jury’s guilty verdict.” Id. at 494 n. 19, 120 S.Ct. 2348. As a plurality of the Court later explained, “Read together, McMillan[v. Pennsylvania, 477 U.S. 79, 106 S.Ct. 2411, 91 L.Ed.2d 67 (1986) ] and Apprendi mean that those facts setting the outer limits of a sentence, and of the judicial power to impose it, are the elements of the crime for the purposes of the constitutional analysis.” Harris, 536 U.S. at 567, 122 S.Ct. 2406.

The Court subsequently clarified that the “ ‘statutory maximum’ for Apprendi purposes is the maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant.” Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The Court explained that “the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum he may impose without any additional findings.” Id. at 303-04, 124 S.Ct. 2531; see also Ring v. Arizona, 536 U.S. 584, 605, 122 S.Ct. 2428, 153 L.Ed.2d 556 (2002) (noting that Arizona’s argument based on the distinction between an offense’s elements and sen-tenting factors is rendered “untenable” by Apprendi’s repeated instruction “that the characterization of a fact or circumstance as an ‘element’ or a ‘sentencing factor’ is not determinative of the question ‘who decides,’ judge or jury”).

In this case, the issue of the defendant’s age was submitted to the jury. The jury had a choice between, among other things, finding the defendant guilty of lewd or lascivious conduct (defendant eighteen years of age or older) and lewd or lascivious conduct (defendant under eighteen years of age). Therefore, Apprendi is not implicated.

As we noted earlier, Apprendi renders moot most discussions of whether a particular fact is an element of the crime or a potential sentencing enhancement. Both must now be submitted to the jury and found beyond a reasonable doubt. Whether a fact is an element, however, remains important to whether it must be alleged in indictments and informations. And it is pertinent here — where a defendant must be retried after a conviction is reversed. Insko correctly notes, and the State does not dispute, that because the jury acquitted him of the greater crime — lewd or lascivious conduct on a person under sixteen by one eighteen or older — he cannot be retried for that crime. See, e.g., Brock v. State, 954 So.2d 87, 88 (Fla. 1st DCA 2007) (stating that “[b]y finding appellant guilty of the lesser-included offense of attempted sexual battery, the jury necessarily found appellant not guilty of the charged sexual battery,” and “double jeopardy prohibits” the state again trying the defendant on the greater charge). On remand, the most Insko could be convicted of was lewd or lascivious conduct by a defendant under eighteen. Insko argues, however, that his age is an element of the offense that the State must prove at a retrial; and because the State cannot possibly prove that he was under eighteen years old — he was in fact thirty-three years old at the time of the crime — his case must be dismissed. We now address that issue.

III. THE CERTIFIED QUESTION

The certified question presents a pure legal issue. Therefore, our review is de novo. See, e.g., Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review.”), cert. denied, — U.S. -, 127 S.Ct. 1268, 167 L.Ed.2d 92 (2007). The question asks, “In light of the ruling in Glover v. State, 863 So.2d 236 (Fla.2003), is the age of the offender an element of the offense of lewd or lascivious conduct under section 800.04(6), Florida Statutes?” In other words, is the age of the offender a fact essential to the specific statutory offense?

We first review the statute, and then compare it to the one we considered in Glover.

The statute at issue provides as follows in pertinent part:

(6) LEWD OR LASCIVIOUS CONDUCT.—
(a) A person who:
1. Intentionally touches a person under 16 years of age in a lewd or lascivious manner; or
2. Solicits a person under 16 years of age to commit a lewd or lascivious act commits lewd or lascivious conduct.
(b) An offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.
(c) An offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 800.04(6), Fla. Stat. (2001).

Applying a plain language analysis, the Second District observed that paragraph (a) defines lewd or lascivious conduct and paragraphs (b) and (c) establish the offense level based on the defendant’s age. The court concluded that “the wording and structure of the statute alone would lead us to conclude that the age of the offender is a sentencing consideration rather than an element of the offense itself.” Insko II, 933 So.2d at 681. Our examination of the statute, however, leads us to the opposite conclusion.

We begin with paragraph (6)(a) of the statute, which defines “lewd or lascivious conduct.” § 800.04(6)(a), Fla. Stat. (2001). That definition does not itself criminalize the conduct. To be sure, the paragraph states that the person engaging in the conduct “commits lewd or lascivious conduct.” But it does not go further to provide that the conduct “is unlawful,” see, e.g., § 810.13(4), Fla. Stat. (2005), or that the person who engages in the conduct “shall be guilty of,” see, e.g., id. § 806.101, or “commits a felony,” see, e.g., id. § 790.161(1). Standing alone, the definition “merely describefs] some obnoxious behavior, leaving any reader assuming that it must be a crime, but never being actually told that it is.” Jones, 526 U.S. at 233, 119 S.Ct. 1215.

Paragraphs (6)(b) and (c) of section 800.04 fill in the missing terms. Paragraph (6)(b) provides that “[a]n offender 18 years of age or older who commits lewd or lascivious conduct commits a felony of the second degree.” This sentence makes lewd or lascivious conduct a crime. The person engaging in the conduct “commits a felony.” Paragraph (c) also makes lewd or lascivious conduct a crime. It provides that “an offender less than 18 years of age who commits lewd or lascivious conduct commits a felony of the third degree.” Accordingly, paragraph (a) is, in a sense, incomplete without paragraph (b) or (c).

Paragraphs (b) and (c), however, are independent of each other. A person eighteen or older “commits a felony of the second degree,” but a person under age eighteen “commits a felony of the third degree.” In each paragraph, the legislature has made the conduct a crime and provided different penalties conditioned on an additional fact, the age of the defendant. This structure more than suggests that the defendant’s age is an element of the crime, not a sentencing factor.

Further, we note that it is not uncommon for the age of the defendant to be an element of sexual offenses. In similar statutes, other states have held the defendant’s age to be an element. See, e.g., Staton v. State, 853 N.E.2d 470, 471, 472 n. 1 (Ind.2006) (holding that the defendant’s age was an element of the crime in a statute providing that a person at least eighteen years of age who, with a child at least fourteen years of age but less than sixteen years of age, performs or submits to sexual intercourse or deviate sexual conduct commits sexual misconduct with a minor, a Class C felony); State v. Watson, 900 So.2d 325, 331 (La.Ct.App.2005) (stating that the essential elements of the crime of molesting a juvenile include that “the accused was over the age of seventeen”); Robinson v. State, 904 So.2d 203, 206 (Miss.Ct.App.2005) (stating that, under a subsection providing that the victim be under the age of fourteen and the accused be twenty-four months older than the child, the age of the defendant is an element of sexual battery).

Florida courts also have found the defendant’s age to be an element in such statutes. In considering a similar statute, we held that the age of the defendant was an element of sexual battery. In Glover, the defendant was convicted of capital sexual battery. Like the statute here, that statute did not criminalize sexual battery within the definition. The statute defined sexual battery as “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object; however, sexual battery does not include an act done for a bona fide medical purpose.” § 794.011(l)(h), Fla. Stat. (1999). The statute then declared sexual battery a crime in certain circumstances, including the following:

(2)(a) A person 18 years of age or older who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a capital felony, punishable as provided in ss. 775.082 and 921.141.
(b) A person less than 18 years of age who commits sexual battery upon, or in an attempt to commit sexual battery injures the sexual organs of, a person less than 12 years of age commits a life felony, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 794.011(2), Fla. Stat. (1999). The Fifth District held that because the victim’s age was an element of the crime, “the age of the defendant, set out in the same section of the statute creating the offense, should also be.” Glover v. State, 815 So.2d 698, 699 (Fla. 5th DCA 2002). We agreed. Glover, 863 So.2d at 238.

The State argues that the sexual battery statute is different because section 794.011(l)(h) does not make sexual battery a crime; only later subsections do so. The State contends that, in contrast, section 800.04(6) (that is, paragraphs (a), (b), and (c)) itself defines lewd or lascivious conduct and provides the punishment depending on the defendant’s age. Stated a different way, the sexual battery statute makes sexual battery a crime only under certain enumerated circumstances, while under the statute in this case lewd or lascivious conduct is always a crime; the age of the defendant determines only the degree of the offense. While we understand the distinction, we disagree that it makes the defendant’s age a sentencing factor instead of an element of the offense.

Section 800.04(6) is similar to the statute we considered in Glover: one paragraph defines the offense, while others make the conduct a crime and establish the degree of the crime. As we explained above, the definition of lewd or lascivious conduct does not make such conduct a crime. See § 800.04(6)(a), Fla. Stat. (2001). Paragraph (a) defines lewd or lascivious conduct for purposes of paragraphs (b) and (c). Similarly, paragraph (l)(h) of section 794.011 defines “sexual battery” for purposes of subsection (2)(a) and (b), which then criminalize the conduct and designate capital and life felonies depending on the defendant’s and the victim’s ages.

Comparing these statutes, other Florida courts have concluded that the age of the defendant is an element of lewd or lascivious conduct. In State v. D.A., 939 So.2d 149 (Fla. 5th DCA 2006), the Fifth District considered the question in the context of the lewd or lascivious molestation statute. See § 800.04(5), Fla. Stat. (2001). Section 800.04(5) is structured similarly to subsection (6). Paragraph (5)(a) describes the conduct of lewd or lascivious molestation and paragraphs (b), (c), and (d) criminalize the conduct and ascribe the classification and degree of the offense based on both the offender’s age and the victim’s age. Before our decision in Glover, the Fourth District had considered section 800.04(5) and held that the age of the offender was a sentencing factor. Desbonnes v. State, 846 So.2d 565, 566 (Fla. 4th DCA 2003). In D.A., however, the Fifth District concluded, based on Glover, that the age of the defendant was an element of lewd or lascivious molestation. The court commented on the Second District’s decision in this case to follow Desbonnes:

While we agree with the Second District’s conclusion that under a “plain reading” of the statute, the age of the defendant is probably more properly viewed as a sentencing consideration, and not an element of the offense, we do not believe that Glover can be distinguished. The very reason that the Fourth District applied its analysis and holding from Jesus[ v. State, 565 So.2d 1361 (Fla. 4th DCA 1990) ] in Desbonnes was that the two statutes are “virtually identical.” This being true, we believe that we are compelled by Glover to conclude that the age of the defendant is also an element of the crime of lewd or lascivious molestation.

D.A., 939 So.2d at 152-53.

The State’s contention that the age of the defendant is not an element in subsection 800.04(6) fails to recognize the integral role the fact plays in defining the crime. As stated above, an element is a fact essential to the offense charged. This includes material facts necessary to determine the degree of the offense.

An example from a different statute is instructive. Section 812.014(1), Florida Statutes (2001), defines “theft.” Subsection (2) provides various degrees and classifications of grand theft (and thus varying punishments), that are largely, though not exclusively, based on property value. If the property stolen is valued at $300 or more, grand theft is a felony of the third degree. Id. § 812.014(2)(c). Thus, in a prosecution for the crime of third-degree grand theft, one of the elements is the value of the items taken. See V.W. v. State, 870 So.2d 102, 103 (Fla. 2d DCA 2003) (“With certain exceptions not material here, one of the elements of grand theft of the third degree is that the value of the property stolen is $300 or more.”); cf. Peoples v. State, 760 So.2d 1141, 1143 (Fla. 5th DCA 2000) (holding that proof of the value of a fire extinguisher was not required where the statute provided that the theft of “[a]ny fire extinguisher” was a third-degree grand theft). Accordingly, courts have held that where a timely motion or objection is raised that the evidence does not support the value required for the degree of the crime charged, a conviction for that specific theft offense cannot stand. See Pickett v. State, 839 So.2d 860, 862 (Fla. 2d DCA 2003) (reversing the trial court’s denial of a motion for judgment of acquittal because the State failed to prove that the value of stolen property exceeded $300, and remanding for “entry of conviction and sentence for petit theft of the second degree”); see also Pena v. State, 901 So.2d 781, 785-86 (Fla.2005) (holding that the defendant’s age was an element of first-degree murder by drug distribution, but that this was not a situation where the charge was totally unsupported by the evidence or “the State had to prove the value of items when such value was necessary to sustain a higher-grade offense”); State v. Rodriguez, 575 So.2d 1262, 1264 (Fla.1991) (holding that prior DUI convictions are an essential element of felony DUI); State v. Harris, 356 So.2d 315, 316 (Fla.1978) (stating that the statute’s requirement of prior petit larceny convictions was an element of the offense raising the offense level from a second-degree misdemeanor to a third-degree felony).

The statute in this case is similar. That is, the age of the defendant under section 800.04(6) is necessary to the provision criminalizing the conduct and ascribing the degree of the crime. It is therefore an element of second- and third-degree felony lewd or lascivious conduct. Unless a defendant who commits lewd or lascivious conduct is at least eighteen years old at the time of the offense, he cannot be convicted of a second-degree felony. Thus, the definition of the crime is integrally linked to the defendant’s age. In other words, to establish a second-degree felony, the State must prove that the defendant is at least eighteen years old. Otherwise, the crime is only a third-degree felony. Thus, under Glover the defendant’s age is an element of the crime. In this statute, the defendant’s age does not enhance a separately prescribed sentence; it determines the statutory maximum of the offense. The fact of the defendant’s age functions this same way in the sexual battery statute.

Accordingly, we hold that the defendant’s age is an element of the offense of lewd or lascivious conduct under section 800.04(6), Florida Statutes (2001).

IV. THE DEFENDANT’S WAIVER

Although we agree with Insko that a defendant’s age is an element of the offense of lewd or lascivious conduct, we nevertheless conclude that he is entitled to no relief. Insko waived any claim to relief long before the retrial.

Under the contemporaneous objection rule, to preserve error for review a litigant must object at trial. This requirement is “based on practical necessity and basic fairness in the operation of a judicial system.” Castor v. State, 365 So.2d 701, 703 (Fla.1978). The rule “not only affords trial judges the opportunity to address and possibly redress a claimed error, it also prevents counsel from allowing errors in the proceedings to go unchallenged and later using the error to a client’s tactical advantage.” F.B. v. State, 852 So.2d 226, 229 (Fla.2003).

Jury instructions are subject to the rule. State v. Delva, 575 So.2d 643, 644 (Fla.1991). Thus, unless fundamental error occurred, to obtain appellate review of a claimed error in instructing the jury, a party must have preserved the error by timely objection. Id. Both the erroneous omission of instruction on an uncontested element of an offense, id. at 645, and the erroneous inclusion of instruction on an element that “the State does not argue is present and about which it presents no evidence,” must be preserved by contemporaneous objection. State v. Weaver, 957 So.2d 586, 588 (Fla.2007); see also Pena v. State, 901 So.2d 781, 784 (Fla.2005) (holding that the failure to instruct the jury that the defendant’s age is an element of first-degree murder by drug distribution was not fundamental, and noting that the element was undisputed and no timely objection was raised); Glover, 863 So.2d at 238 (holding that the defendant’s age is an element of capital sexual battery, but affirming the conviction because the failure to so instruct the jury was not fundamental where the element was undisputed). So, too, must almost all claims that the evidence was insufficient. F.B., 852 So.2d at 230.

As noted earlier, the verdict form in this case gave the jury several options: it could find Insko guilty of lewd or lascivious conduct by a person age eighteen or older, a second-degree felony; it could find Insko guilty of the lesser crime of lewd or lascivious conduct by a defendant less than eighteen, a third-degree felony; it could find Insko guilty of simple assault, a misdemeanor; or it could acquit Insko altogether. Although it was apparently obvious that Insko was eighteen or older (he was thirty-four years old at the time of the trial), the jury exercised its pardon power and found him guilty of only the third-degree felony, reducing the maximum possible prison term from fifteen years to five.

At the original trial, the defendant reviewed the jury instructions, which included an instruction on lewd or lascivious conduct by a defendant under age eighteen. He also reviewed the verdict form providing this alternative. He specifically stated that he did not object to them. He also did not object when the court instructed the jury on the lesser felony and did not object when the jury found him guilty of the lesser crime. . Nor, on appeal, did he raise any argument about his age and the offense of which the jury found him guilty. See Insko I, 884 So.2d at 313; Insko II, 933 So.2d at 683 (Wallace, J., concurring) (“Following his initial conviction in the trial court, Insko did not challenge the jury’s verdict on the ground that he could not be convicted of the third-degree felony offense of lewd or lascivious conduct because he was eighteen years of age or older at the time of the offense.”). In any event, such an argument would have had little chance of success. See Jones v. State, 492 So.2d 1124, 1126 (Fla. 3d DCA 1986) (stating, in response to the defendant’s argument he could not be retried for attempt because the evidence showed a completed burglary, that “[a]n accused who is convicted of an attempt as the lesser of a charged offense will not be heard to complain that he should be set free merely because the evidence shows that he was guilty of the greater offense”).

Instead, Insko raised this claim for the first time after the Second District reversed his conviction on other grounds and remanded for a new trial. We recently held that a similar argument was waived in the context of a theft claim where the State failed to prove the amount stolen. In F.B. v. State, the defendant had been adjudicated delinquent for petit theft of items valued between $100 and $300. F.B., 852 So.2d at 227. The State presented evidence of the items stolen, but not about their-value. Id. The defendant did not object. Instead, he claimed on appeal that the State’s failure to prove an essential element of the crime was fundamental error. We held “that, with two exceptions, a defendant must preserve a claim of insufficiency of the evidence through timely challenge in the trial court.” Id. at 230. The first exception is in death penalty cases, in which our review of the sufficiency of the evidence is required by rule; the second “occurs when the evidence is insufficient to show that a crime was committed at all.” Id. Insko’s case does not fall within either exception. He is not a death-sentenced prisoner, and the evidence is not insufficient to show that a crime was committed. Accordingly, Insko was required to object to preserve the error and, having failed to do so, waived it.

V. CONCLUSION

In light of the foregoing, we hold that the age of the defendant is an element of the offense of lewd or lascivious conduct under section 800.04(6). By failing to object to the instruction allowing the jury to find that he was under eighteen when he committed the offense, however, Insko waived the claim. We therefore approve the judgment below affirming Insko’s conviction and sentence.

It is so ordered.

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

      . The Court distinguished indeterminate sentencing schemes and those that impose statutory minimum sentences because they do not involve imposition of a sentence greater than state law authorizes. Blakely, 542 U.S. at 304-05, 308-09, 124 S.Ct. 2531.

      . In Glover, we disapproved of the Fourth District's decision in Jesus. Glover, 863 So.2d at 238.

      . As we recently explained, the jury’s "pardon power” is its ability to convict a defendant of a lesser offense despite evidence supporting the greater one. Sanders v. State, 946 So.2d 953, 957-58 (Fla.2006). -


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    In re PETITION OF THE ALTERNATIVE DISPUTE RESOLUTION RULES AND POLICY COMMITTEE ON AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS.
    No. SC05-998.
    Supreme Court of Florida.
    Nov. 15, 2007.
    Honorable Shawn L. Briese, Chair, Alternative Dispute Resolution Rules and Policy Committee, Seventh Judicial Circuit, Daytona Beach, FL, for Petitioner.
    Larry Fong, President, Association for Conflict Resolution, Washington, D.C.; Honorable Barbara L. Rutberg, West Palm Beach, FL; Linda Fieldstone, President, Florida Association of Family and Conciliation Courts, Naples, FL; Kenneth R. Hart of Ausley and McMullen, Florida Institute of Certified Public Accountants, Tallahassee, FL; John W. Day, St. Peters-burg, FL; Jane M. Lambert, Tampa, FL; Merrett R. Stierheim of Merrett R. Stier-heim and Associates, Miami, FL; Brian Schremp, Tampa, FL; Andrew Blaise Sas-so of Sasso and Bodolay, Clearwater, FL; John Anthony Boggs, The Florida Bar, Tallahassee, FL; Kathryn B. Anderson, CAE, CEO-Executive Director, Florida Institute of Certified Public Accountants, Tallahassee, FL; Martin G. Holleran, Stuart, FL; Ronald J. Lebio, Dunnellon, FL; Edgardo Rodriguez-Quilichini, San Juan, PR; Kenneth R. Starr, Sarasota, FL; Gary N. Feder, CPA, P.A., Coral Gables, FL; Nancy Neal Yeend, the John Paul Jones Group, Los Altos, CA; and Gregory Firestone, Ph.D., Tampa, FL; Responding with comments.
   PER CURIAM.

In response to the Court’s request, the Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee) has submitted amendments to the Florida Rules for Certified and Court-Appointed Mediators (Mediator Rules) that incorporate the point-based system for mediator certification approved on an interim basis in the Court’s prior opinion in this case. We adopt the rule amendments as proposed by the Committee, specially removing the requirement of Florida Bar membership for certified circuit court mediators.

BACKGROUND

Previously in this case, we adopted, with minor modifications, proposed amendments to the Mediator Rules, and approved new point-based mediator certification requirements, as modified for circuit court mediators, outlined in an administrative order. In re Petition of the Alternative Dispute Resolution Rules and Policy Comm, on Amendments to Fla. Rules for Certified and Court-Appointed Mediators, 931 So.2d 877 (Fla.2006) [hereinafter Amendments ]; In re Rules Governing Certification of Mediators, Fla. Admin. Order No. AOSC06-9 (May 11, 2006) [hereinafter Administrative Order No.

AOSC06-9]. We explained in our prior opinion:

[T]he practical effect of this new point system is to remove the more formal mandatory education and profession-based requirements ... and to allow applicants to obtain certification in a variety of different ways more directly related to the actual skills and experience the Committee has determined to be necessary for service as an effective mediator.

Amendments, 931 So.2d at 880.

The action we took in our first opinion varied from the Committee’s original proposals as follows. First, although, as part of new point system, the Committee proposed the removal of the Florida Bar membership requirement for certified circuit court mediators, we retained that requirement until we could more fully consider the issue. We were hesitant to remove the Bar membership requirement without input from The Florida Bar, which had not filed a comment. Therefore, we directed the Bar to file a comment addressing the issue. Id. at 880-81. Second, although the Committee proposed that the new point system be outlined in an administrative order, we determined that the point system should be incorporated into the rules instead and directed the Committee to propose such rule amendments. Id. at 882. However, we approved the point system in concept and approved, on an interim basis, its inclusion in the new administrative order governing certification of mediators. Finally, we did not adopt proposed procedures for review by the Chief Justice of disciplinary action against mediators, and instead modified the rule to provide that review by the Chief Justice will be in accordance with procedures adopted pursuant to administrative order. Id. at 884.

As requested by the Court, the Committee submitted amendments that incorporate into the rules the new mediator certification point-based requirements, including the retained Bar membership requirement for certified circuit court mediators. However, the Committee continues to strongly urge the Court to remove the Bar membership requirement. As requested by the Court, the Bar also filed its comment addressing the Bar membership requirement. The Bar takes the position that the requirement should be retained for circuit court mediators, but that the applicant also should be required to have been a member in good standing of The Florida Bar or the bar of another jurisdiction for the five years immediately preceding an application.

The rule amendments, along with an explanation of the Committees and the Bars positions on the Bar membership requirement, were published for comment in The Florida Bar News. Several comments were received by the Court. The Court held oral argument on May 7, 2007.

After considering the Committee’s proposals and the comments filed, and hearing oral argument, we amend the Mediator Rules as proposed by the Committee. Additionally, we amend, on our own motion, Florida Rule of Civil Procedure 1.720.

DISCUSSION

As noted above, in our prior opinion, we resolved to reevaluate the Bar membership requirement for certified circuit court mediators after The Florida Bar had an opportunity to respond to the Committee’s recommendation that the requirement be removed. Additionally, we determined that the new mediator point system previously adopted by administrative order should be incorporated into the Mediator Rules. Each matter is discussed in turn below.

Bar Membership Requirement for Certified Circuit Court Mediators

The Florida Bar membership requirement for certified circuit court mediators is currently found in Administrative Order No. SC06-9:

An applicant must be a member in good standing of The Florida Bar with at least five years of Florida practice and be an active member of The Florida Bar within one year of application for certification; or be a retired trial judge from any United States jurisdiction who was a member in good standing of the bar in the state in which the judge presided for at least five years immediately preceding the year certification is sought.

Administrative Order No. SC06-9 at 4. Prior to its inclusion in the administrative order, the Bar membership requirement was found in former rule 10.100(c), which provided the certification requirements for circuit court mediators.

The Florida Bar did not file a comment in response to the Committee’s original proposal to remove the Bar membership requirement; and, of all the comments received by the Court only the comment filed by the Bar at the direction of the Court and two other comments by members of The Florida Bar urge retaining this requirement. In moving to a true point-based certification system for all categories of mediators except circuit court mediators, we recognized that “the general consensus in the alternative dispute resolution field is that possession of academic degrees, including law degrees, does not necessarily predict an individuals ability to be a good mediator.” Amendments, 931 So.2d at 881. According to the Committee, Florida is currently in a minority of states that require legal training as a prerequisite to being certified as a circuit court mediator. We understand that by continuing to urge the Court to remove this requirement, the Committee seeks to ensure that Florida maintains its place of preeminence in the alternative dispute resolution field in the United States. After considering the Bars comment and the Committees well-reasoned response, as well as the numerous comments in this case in support of the Committees position, we now remove the Bar membership requirement for certified circuit court mediators and amend the rules to provide a true point-based mediator certification system for our state.

However, in eliminating the Bar membership requirement for certified circuit court mediators, we also recognize that there may be situations in which a party to a circuit court mediation may object to the appointment of a mediator who lacks legal training. In such situations, we believe that the circuit court must necessarily appoint a mediator who is a member of The Florida Bar. Accordingly, on our own motion, we also amend Florida Rule of Civil Procedure 1.720(f)(2) to require courts to appoint a certified circuit court mediator who is a member of The Florida Bar upon the request of either party.

Rule Amendments

Rule 10.100, Certification Requirements

Subdivision (a), General, is amended to explain that for certification as a mediator, a mediator must have the required number of points for the type of certification sought as specifically required in rule 10.105, Point System Categories. Subdivisions (b), County Court Mediators, (c), Family Mediators, (d), Circuit Court Mediators, and (e), Dependency Mediators, are amended to delineate the point requirements for mediator certification. The certification requirements track those previously contained in the administrative order, -with the exception of the removal of the Bar membership requirement for circuit court mediators.

Rule 10.105, Point System Categories

New rule 10.105 explains how many points will be awarded for different levels of education, mediation experience, and mentorship. Further, the new rule explains how many points will be awarded in miscellaneous categories such as (1) licen-sure or certification in any United States jurisdiction in psychology, accounting, social work, mental health, health care, education, or the practice of law or mediation; (2) possession of a conversational ability in a foreign language or approval as a sign language interpreter; (3) completion of a mediation training program approved by a jurisdiction other than Florida and which may not be the required Florida Supreme Court mediation training program; and (4) certification as a mediator by the Florida Supreme Court. The committee note to the rule includes a table that illustrates the point system. The rule and table track, with minor changes required by the removal of the Bar membership requirement, the point system and table previously set forth in the administrative order.

CONCLUSION

In adopting these amendments, the Court again thanks the Committee on Alternative Dispute Resolution Rules and Policy for its continued dedication in advising the Court on alternative dispute resolution policies and procedures. We are especially grateful to the Committee for its counsel in this case and for assisting the Court in further refining Florida’s successful mediation system. We also thank The Florida Bar and the commentors who also provided valuable input in this case.

Accordingly, we amend the Florida Rules for Certified and C ourt-App ointed Mediators and the Florida Rules of Civil Procedure as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The committee notes are offered for explanation only and are not adopted as an official part of the rules. These amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

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

APPENDIX

Florida Rules for Certified and Court-Appointed Mediators

Part I. Mediator Qualifications

Rule 10.100. Certification Requirements

(a) General. For certification as a county court, family, circuit court or dependency mediator, a mediator must be at least 21 years of age, and be of good moral character, and have the required number of points for the type of certification sought as specifically required in rule 10.105.

(b) County Court Mediators. For initial certification as a mediator of county court matters, an applicant must have at least a high school diploma or a General Equivalency Diploma (GED) and 100 points, which shall include: satisfy the requirements adopted pursuant to administrative order — of—^the chief justice. — Such order shall — establish minimum requirements- in the categories of training,-education-and mentorship.

(1) 30 points for successful completion of a Florida Supreme Court certified county court mediation training program;

(2) 10 points for education; and

(3) 60 points for mentorship.

(c) Family Mediators. For initial certification as a mediator of family and dissolution of marriage issues, an applicant must have at least a bachelor’s degree and 100 points, which shall include, at a minimum: satisfy ■ ■ the -requirements adopted pursuant to administrative-order-of — the chief justice. — Such order-^hah-estafelish-minimum requirements in-the-categories-cf training-,- education, experience, and men-torship.

(1) 30 points for successful completion of a Florida Supreme Court certified family mediation training program;

(2) 25 points for education/mediation experience; and

(3) 30 points for mentorship.

Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

(d) Circuit Court Mediators. For initial certification as a mediator of circuit court matters, other than family matters, an applicant must have at least a bachelor’s degree and 100 points, which shall include, at a minimum: satisfy the requirements-adopted-pursuanh to administrative order of the chief justice. Such-order shall establish minimum requirements in the categogies-of — tr-ainingy-education, experience, and motorship.

(1) 30 points for successful completion of a Florida Supreme Court certified circuit mediation training program;

(2) 25 points for education/mediation experience; and

(3) 30 points for mentorship.

Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

(e) Dependency Mediators. For initial certification as a mediator of dependency matters, as defined in Florida Rule of Juvenile Procedure 8.290, an applicant must have at least a bachelor’s degree and 100 points, which shall include, at a minimum: satisfy the-requirements-adopted-pursuaat to administrative order-of-the-e-hief-justieeT Such — order shall establish minimum requirements in the categories of training, education,-experience, and mentorship.

(1) 30 points for successful completion of a Florida Supreme Court certified dependency mediation training program;

(2) 25 points for education/mediation experience; and

(3) 40 points for mentorship.

Additional points above the minimum requirements may be awarded for completion of additional education/mediation experience, mentorship, and miscellaneous activities.

(f)-(h) [No Change]

Rule 10.105. Point System Categories

(a) Education. Points shall be awarded in accordance with the following schedule (points are only awarded for the highest level of education completed and honorary-degrees are not included):

High School Diploma/GED 10 points

Associate’s Degree 15 points

Bachelor’s Degree 20 points

Master’s Degree 25 points

Master’s Degree in Conflict Resolution 30 points

Doctorate (e.g„ Ph.D., J.D., M.D., Ed.D., LL.M.) 30 points

Ph.D. from Accredited Conflict Resolution Program 40 points

An additional five points will be awarded for completion of a graduate level conflict resolution certificate program in an institution which has been accredited by Middle States Association of Colleges and Schools, the New England Association of Schools and Colleges, the North Central Association of Colleges and Schools, the Northwest Association of Schools and Colleges, the Southern Association of Colleges and Schools, the Western Association of Schools and Colleges, the American Bar Association, or an entity of equal status.

(b) Mediation Experience. One point per year will be awarded to a Florida Supreme Court certified mediator for each year that mediator has mediated at least 15 cases of any type. In the alternative, a maximum of five points will be awarded to any mediator, regardless of Florida Supreme Court certification, who has conducted a minimum of 100 mediations over a consecutive five-year period.

(c) Mentorship. Ten points will be awarded for each supervised mediation completed of the type for which certification is sought and five points will be awarded for each mediation session of the type for which certification is sought which is observed.

(d) Miscellaneous Points.

1. Five points shall be awarded to applicants currently licensed or certified in any United States jurisdiction in psychology, accounting, social work, mental health, health care, education or the practice of law or mediation. Such award shall not exceed a total of five points regardless of the number of licenses or certifications obtained.

2. Five points shall be awarded for possessing conversational ability in a foreign language as demonstrated by certification by the American Council on the Teaching of Foreign Languages (ACTFL) Oral Proficiency Test, qualification as a court interpreter, accreditation by the American Translators Association, or approval as a sign language interpreter by the Registry of Interpreters for the Deaf. Such award shall not exceed a total of five points regardless of the number of languages in which the applicant is proficient.

3. Five points shall be awarded for the successful completion of a mediation training program (minimum 30 hours in length) which is certified or approved by a .jurisdiction other than Florida and which may not be the required Florida Supreme Court certified mediation training program. Such award shall not exceed five points regardless of the number of training programs completed.

4. Five points shall be awarded for certification as a mediator by the Florida Supreme Court. Such award shall not exceed five points per category regardless of the number of training programs completed or certifications obtained.

Committee Notes

The following table is intended to illustrate the point system established in this rule. Any discrepancy between the table and the written certification requirements shall be resolved in favor of the latter.

Points Needed Per Area of Minimum Points Required in Each Area Certification

County 100 30 certified county mediation training; 10 education (minimum HS Diploma/GED); 60 mentorship

Family 100 30 certified family mediation training; 25 education/ mediation experience (minimum Bachelor’s Degree); 30 mentor-ship [and requires 15 additional points]

Dependency 100 30 certified dependency mediation training; 25 education/mediation experience (minimum Bachelor’s Degree); 40 mentorship [and requires 5 additional points]

Circuit 100 30 certified circuit mediation training, 25 education/mediation experience (minimum Bachelor’s Degree); 30 mentor-ship; [and requires 15 additional points]

Education/Mediation Experience (points awarded for highest level of education received)

HS Diploma/GED 10 points Master’s Degree in Conflict Resolution 30

Associate’s Degree 15 points Doctorate (e.g., J.D., M.D., Ph.D., Ed.D., 30 LL.M.)

Bachelor’s Degree 20 points Ph.D. from accredited CR Program 40

Master’s Degree 25 points Graduate Certificate CR Program +5

Florida certified mediator: 1 point per year in which mediated at least 15 mediations (any type) OR any mediator: - 5 points for minimum of 100 mediations (any type) over a 5 year period

Mentorship- must work with at least 2 different certified mediators and must be completed for the type of certification sought

Observation 5 points each session

Supervised Mediation 10 points each complete mediation

Miscellaneous Points

Licensed to practice law, psychology, accounting, social work, 5 points (total) mental health, health care, education or mediation in any US jurisdiction

Florida Certified Mediator 5 points (total)

Foreign Language Conversational Ability as demonstrated by 5 points (total) certification by ACTFL Oral Proficiency Test; qualified as a court interpreter; or accredited by the American Translators Association; Sign Language Interpreter as demonstrated by approval by the Registry of Interpreters for the Deaf

Completion of additional mediation training program (minimum 30 5 points (total) hours in length) certified/approved by a state or court other than Florida

Miscellaneous Points

Florida Rules of Civil Procedure

Rule 1.720. Mediation Procedures

(a)-(e) [No Change]

(f) Appointment of the.Mediator.

(1) [No Change]

(2) If the parties cannot agree upon a mediator within 10 days of the order of referral, the plaintiff or petitioner shall so notify the court within 10 days of the expiration of the period to agree on a mediator, and the court shall appoint a certified mediator selected by rotation or by such other procedures as may be adopted by administrative order of the

Miscellaneous Points

chief judge in the circuit in which the action is pending. At the request of either party, the court shall appoint a certified circuit court mediator who is a member of The Florida Bar.

(3)[No Change]

(g) [No Change]

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.; see also § 44.106, Fla. Stat. (2006).

      . The Court is concerned about review of determinations concerning mediators by the Chief Justice, as currently authorized by rule and administrative order, especially the procedures proposed for review of disciplinary action, and would like the Committee to consider alternatives to the Chief Justice's direct participation. Cf. In re Amendments to Rules Regulating Fla. Bar — Fla. Registered Paralegal Program, No. SC06-1622, 969 So.2d 360, 2007 WL 3377120 (Fla. Nov.15, 2007) (adopting review procedures for discipline of registered paralegals without review by the Chief Justice). The Committee's proposals should be filed with the Clerk of the Court by February 15, 2008.


text:
    Christopher BENTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0373.
    District Court of Appeal of Florida, First District.
    Feb. 13, 2007.
    Christopher Benton, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BARFIELD, BENTON, and POLSTON, JJ., concur.


author: CANADY, Judge.

text:
    Kevin O’HALLORAN, as trustee and individually as alleged assignee, Appellant, v. PRICEWATERHOUSECOOPERS LLP, Appellee.
    No. 2D04-147.
    District Court of Appeal of Florida, Second District.
    May 4, 2007.

      Zala L. Forizs and Haley Dempsey of Forizs & Dogali, P.L., Tampa, and Nicholas J. DiCarlo of Beus Gilbert, PLLC, Scottsdale, AZ, for Appellant.
    John R. Blue, Thomas J. Roehn, and Ellen K. Lyons of Carlton Fields, P.A., Tampa, and Jami Wintz McKeon and John C. Goodchild, III, of Morgan, Lewis & Bockius LLP, Philadelphia, PA, for Appel-lee.
   CANADY, Judge.

In this case, the trial court dismissed with prejudice a complaint against Price-waterhouseCoopers (PWC) filed by Kevin O’Halloran, a chapter 11 bankruptcy trustee for Keller Financial Services of Florida, Inc., and subsidiary corporations (collectively, Keller Financial). The claims asserted by O’Halloran arose from the performance of financial advisory services by PWC for Keller Financial in 1997 and 1998. O’Halloran’s claims include “debtors’ causes of action,” as well as a claim— the noteholder claim — brought pursuant to assignments made to O’Halloran by certain purchasers of secured notes sold by Keller Financial.

The gravamen of the complaint was that PWC, which was retained to give advice concerning the restructuring of Keller Financial, pursued a merger strategy that PWC knew or should have known was futile. By doing so, according to O’Hallo-ran’s allegations, PWC delayed Keller Financial’s filing for bankruptcy and thereby “allowed Keller [Financial] to become increasingly insolvent and Keller [Financial’s] assets to be looted, squandered or otherwise dissipated while PWC pursued [the] futile transaction.” O’Halloran also alleged that PWC pursued the merger strategy because it would have involved “a lucrative ‘transaction fee’ ” for PWC.

The debtors’ .causes of action against PWC — that is, claims against PWC allegedly possessed by Keller Financial when it went into bankruptcy — included claims for breach of fiduciary duty (count 1), negligence/professional malpractice (count 2), aiding and abetting breach of fiduciary duty (count 3), breach of contract (count 4), and constructive fraud (count 5). The noteholder claim was for aiding and abetting breach of fiduciary duty (count 6).

The trial court ruled that several of the claims — counts 1, 3, 4, and 5 — were subject to dismissal because they were barred by res judicata — or claim preclusion — arising from the bankruptcy court’s order confirming the joint plan of liquidation presented in the Keller Financial bankruptcy proceedings. In brief, the trial court concluded that these claims could have been litigated in the bankruptcy proceedings and that the bankruptcy plan did not adequately preserve O’Halloran’s right to litigate them after confirmation of the plan by the bankruptcy court.

The trial court also ruled that several of the claims — counts 1, 2, 3, and 4 — were barred by the doctrines of imputation and in pari delicto. The trial court reasoned that O’Halloran, as bankruptcy trustee, “stands in the shoes” of Keller Financial and that — according to O’Halloran’s own allegations — Keller Financial was itself involved in wrongdoing “to further its existence.” In reaching this conclusion, the trial court relied not only on the allegations of the complaint in the instant case but also on the allegations in a complaint filed by O’Halloran against insiders of Keller Financial and in a complaint filed by O’Halloran against KPMG Peat Marwick, Keller Financial’s auditor.

In addition, the trial court ruled that the noteholder claim (count 6) was barred because O’Halloran “is not empowered to bring creditors’ claims” and because allowing the claim would create the possibility of “double recovery” by noteholders who did not assign their’’ claims to O’Halloran.

The trial court thus dismissed with prejudice all of the claims against PWC and entered a final judgment in favor of PWC.

1. Principles Governing Review of Dismissed Claims

Since a trial court’s ruling on a motion to dismiss presents a question of law, it is subject to de novo review. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002). In conducting such de novo review, the appellate court is “required to accept the factual allegations of the complaint as true and to consider those allegations and any inferences to be drawn therefrom in the light most favorable to” the plaintiff. Aguilera v. Inservices, Inc., 905 So.2d 84, 87 (Fla.2005).

Florida Rule of Civil Procedure 1.110(d) provides that “[ajffirmative defenses appearing on the face of a prior pleading may be asserted as grounds for a motion [to dismiss] under rule 1.140(b).” Accordingly, a complaint may be dismissed if its allegations show the existence of an affirmative defense to the claims asserted in the complaint. See Boca Burger, Inc. v. Forum, 912 So.2d 561, 568-69 (Fla.2005).

2. The Res Judicata Issue

O’Halloran argues on appeal — as he did before the trial court — -that the debtors’ claims against PWC were specifically preserved in the bankruptcy proceeding and that the order confirming the bankruptcy plan therefore does not operate to preclude those claims. We conclude that O’Halloran’s argument is supported by the record before the trial court concerning the bankruptcy proceedings and the law concerning the preservation of a debtor’s claims in bankruptcy.

Section 1123 of the Bankruptcy Code provides that a bankruptcy plan may provide for “the retention and enforcement by the debtor, [or] by the trustee” of “any claim or interest belonging to the debtor or to the estate.” 11 U.S.C. § 1123(b)(3) (1994). Accordingly, although a bankruptcy confirmation order may give rise to res judicata with respect to claims of the debt- or that could have been litigated in the bankruptcy proceeding, see Sure-Snap Corp. v. State Street Bank & Trust Co., 948 F.2d 869, 873-74 (2d Cir.1991), “res judicata does not apply when a cause of action has been expressly reserved for later adjudication,” D & K Props. Crystal Lake v. Mut. Life Ins. Co. of N.Y., 112 F.3d 257, 259-60 (7th Cir.1997). There is considerable divergence of opinion concerning the degree of specificity required for an effective retention of a debtor’s claim pursuant to § 1123. See Kmart Corp. v. Intercraft Co. (In re Kmart Corp.), 310 B.R. 107, 120 (Bankr.N.D.Ill. 2004) (discussing various views regarding “how a section 1123(b)(3) retention provision must be written in order to accomplish the desired result”).

Here, the trial court’s ruling on the res judicata issue can be sustained only if we adopt a strict rule of specificity under which the naming of each cause of action is required for the effective retention of the debtors’ claims. We decline to impose such an exacting rule of specificity.

To begin with, the text of § 1123 provides no support for the imposition of such a rule. Furthermore, the context strongly militates against such a rule. “To require a debtor to conjure up and list every imaginable cause of action would unduly complicate the reorganization process and would be unrealistic.” EXDS, Inc. v. Ernst & Young LLP (In re EXDS, Inc.), 316 B.R. 817, 824 (Bankr.D.Del.2004). “[MJandat-ing a specific description of every claim the debtor intends to pursue could entail months or years of investigation and a corresponding delay in the confirmation of the plan of reorganization.” Katz v. I.A. Alliance Corp. (In re I. Appel Corp.), 300 B.R. 564, 569 (S.D.N.Y.2003); see also Alary Corp. v. Sims (In re Associated Vintage Group, Inc.), 283 B.R. 549, 564 (B.A.P. 9th Cir.2002) (recognizing “the danger of engrafting an unduly burdensome specificity requirement onto the § 1123(b)(3) authorization for the retention and enforcement of claims” and stating that it is “impractical and unnecessary to expect that a disclosure statement and plan must list ... each and every possible theory” of recovery).

We turn now to the language used in the bankruptcy disclosure statement concerning claims retained against PWC and to our evaluation of the application of the law.

The disclosure statement filed by O’Hal-loran makes two references to claims against PWC. First, the statement states that “[t]he Debtors may be able to assert claims ... against ... accounting firms for professional malpractice.” The statement then goes on to specifically list PWC after stating that “all [pjersons identified herein by ... name should understand that all claims against them held by the Trustee or the Debtors are preserved and may be asserted following confirmation of the Plan.” (Emphasis added.) Second, under the heading of “Professional Liability,” the statement again names PWC and states: “All claims held by the Trustee or the Debtors against any professional persons employed, retained, or consulted by the Debtors are reserved for the benefit of the Debtors’ creditors under the Plan.”

The trial court concluded that the language of the disclosure statement was sufficient to preserve only the claim against PWC for negligence/malpractice (count 2). If the only reference in the disclosure statement to claims against PWC were the reference to “professional malpractice” claims, we would be inclined to agree with the trial court. But the second reference to claims against PWC — under the heading of “Professional Liability”- — suggests a broader interpretation of the scope of the claims preserved against PWC. Those provisions of the disclosure statement are most reasonably read as preserving all the asserted claims of the debtors against PWC arising from PWC’s professional relationship with Keller Financial. We also conclude, for the reasons that we have discussed above, that such language preserving “all claims” against PWC arising from PWC’s professional relationship with Keller Financial was sufficient to be an effective retention pursuant to section 1123.

The trial court read the claim preservation provisions of the disclosure statement in an unreasonably restrictive manner and applied an unduly exacting requirement of specificity. The trial court therefore erred in dismissing the claim based on res judi-cata.

8. The In Pari Delicto Issue

O’Halloran contends that the doctrine of in pari delicto is inapplicable (1) because the alleged wrongdoing of the agents of Keller Financial should not be imputed to the corporation or to O’Halloran and (2) because the alleged wrongdoing of Keller Financial’s agents is distinct from the alleged wrongdoing of PWC. Considering the allegations of fact before the trial court and the inferences to be drawn from those allegations in the light most favorable to O’Halloran, we conclude that there is merit in both of these arguments advanced by O’Halloran.

In pari delicto means “in equal fault.” Black’s Law Dictionary 806 (8th ed.2004). The phrase appears in the legal maxim: “Where both parties are equally in the wrong, the position of the defendant is the stronger.” Id. at 1725, appendix B. “In pari delicto refers to the plaintiffs participation in the same wrongdoing as the defendant.” Memorex Corp. v. Int’l Bus. Machs. Corp., 555 F.2d 1379, 1382 (9th Cir.1977). The defense of in pari delicto “is both an affirmative defense and an equitable defense. Broadly speaking, the defense prohibits plaintiffs from recovering damages resulting from their own wrongdoing.” Nisselson v. Lernout, 469 F.3d 143, 151 (1st Cir.2006); see also Hall v. Hall, 93 Fla. 709, 112 So. 622, 628 (1927) (referring to “ ‘the universal rule of our law that one in a court of justice cannot complain ... of another’s wrong whereof he was a partaker’ ”) (quoting Bishop, Marriage and Divorce, § 1548).

The defense [of in pari delicto ] is grounded on two premises: first, that courts should not lend their good offices to mediating disputes among wrongdoers; and second, that denying judicial relief to an admitted wrongdoer is an effective means of deterring illegality. In its classic formulation, the in pari delicto defense was narrowly limited to situations where the plaintiff truly bore at least substantially equal responsibility for his injury, because “in cases where both parties are in delicto, concurring in an illegal act, it does not always follow that they stand in pari delicto; for there may be, and often are, very different degrees in their guilt.” 1 J. Story, Equity Jurisprudence 304-305 (13th ed.1886) (Story).

Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 306-07, 105 S.Ct. 2622, 86 L.Ed.2d 215 (1985) (footnotes omitted).

Where the defense of in pari delicto is asserted against a corporate entity based on the misconduct of the corporation’s agents, it must be determined whether the misconduct of those agents is properly imputed to the corporation. “As a general rule, a principal may be held liable for the acts of its agent that are within the course and scope of the agency.” Roessler v. Novak, 858 So.2d 1158, 1161 (Fla. 2d DCA 2008).

But if a corporate agent was “acting adversely to the corporation’s interests, the knowledge and misconduct of the agent are not imputed to the corporation.” State, Dep’t of Ins. v. Blackburn, 633 So.2d 521, 524 (Fla. 2d DCA 1994); see also Seidman & Seidman v. Gee, 625 So.2d 1, 2-3 (Fla. 3d DCA 1992) (referring to “an exception to the imputation rule [that] exists where an individual is acting adversely to the corporation”); Joel Strickland Enters., Inc. v. Atlantic Disc. Co., 137 So.2d 627, 629 (Fla. 1st DCA 1962) (stating that knowledge is not imputed to the corporation “where the conduct of the agent is such as to raise a clear presumption that he would not communicate to the principal the facts in controversy, as where an agent is in reality acting in his own business or for his own personal interest and adversely to the principal”). When a corporate agent engages in misconduct that is calculated to benefit the agent and to harm the corporation, the agent has effectively ceased to function within the course and scope of the agency relationship with the corporation. Although formally he acts as the agent of the corporation, in reality he has forsaken the corporation and acts as an agent for himself.

This limitation on the general rule that the acts of a corporate agent are imputed to the corporation is commonly known as the “adverse interest exception.” See Tew v. Chase Manhattan Bank, N.A, 728 F.Supp. 1551, 1560 (S.D.Fla.1990); Nerbonne, N.V. v. Lake Bryan Int’l Props., 685 So.2d 1029, 1031 (Fla. 5th DCA 1997); State Dep’t of Ins. v. Blackburn (In re Blackburn), 209 B.R. 4, 11 (Bankr. M.D.Fla.1997).

A claim of adverse interest cannot be successfully invoked where the corporate actors whose conduct is at issue were the “alter egos” of the corporation. Where a corporation is wholly dominated by persons engaged in wrongdoing, the corporation has itself become the instrument of wrongdoing. See Terlecky v. Hurd (In re Dublin Sec.), 133 F.3d 377, 380 (6th Cir.1997). This principle comes into play when there is no innocent member of management who could act to thwart the wrongdoing. See Freeman v. Dean Witter Reynolds, Inc., 865 So.2d 543, 551 (Fla. 2d DCA 2003). Conversely, the presence of any innocent decision-maker in the management of a corporation can provide the basis for invoking the adverse interest exception, preventing the imputation of wrongdoing and defeating the use of the in pari delicto defense against the corporation. See Sharp Int’l Corp. v. KPMG LLP (In re Sharp Int’l Corp.), 278 B.R. 28, 39 (Bankr.E.D.N.Y.2002).

In summary, determining whether misconduct should be imputed to a corporation requires that the focus of analysis be on whether the misconduct was calculated to benefit the corporation. The misconduct will be imputed where the corporation has been operated as an “engine of theft.” See Cenco, Inc. v. Seidman & Seidman, 686 F.2d 449, 454 (7th Cir.1982). For example, a “corporation, ‘whose primary existence was as a perpetrator of [a] Ponzi scheme, cannot be said to have suffered injury from the scheme it perpetrated.’ ” Freeman, 865 So.2d at 552 (quoting O’Halloran v. First Union Nat’l Bank of Fla., 350 F.3d 1197, 1203 (11th Cir.2003)). Such a corporation is in no position to invoke the adverse interest exception. Where the misconduct at issue consists, however, in looting the corporation, the corporation'— which is itself purely the victim of the misconduct — may properly invoke the adverse interest exception and defeat an in pan delicto defense. See Baena v. KPMG LLP, 453 F.3d 1, 7 (1st Cir.2006) (referring to “looting” as the “classic example” of conduct by corporate agents that falls within the “[ajdverse interest” exception).

The law is well established that under § 541(a) of the Bankruptcy Code, “[a] bankruptcy trustee stands in the shoes of the debtor.’ ” Official Comm, of Unsecured Creditors of PSA, Inc. v. Edwards, 437 F.3d 1145, 1150 (11th Cir.2006) (quoting O’Halloran, 350 F.3d at 1202). “If a claim of [the debtor] would have been subject to the defense of in pari delicto at the commencement of the bankruptcy, then the same claim, when asserted by the trustee, is subject to the same affirmative defense.” Id.; see also Nisselson, 469 -F.3d at 153 (stating that “the in pari delicto defense must be available to a defendant in an action by a bankruptcy trustee whenever that defense would have been available in an action by the debtor”). Accordingly, in making his claims pursuant to § 541(a) — that is, the debtors’ causes of action — O’Halloran will be barred by PWC’s in pari delicto defense to the same extent that Keller Financial would be barred by that defense.

We thus turn to the factual question of whether Keller Financial was in pari de-licto with PWC with respect to the alleged wrongdoing which is the basis for the assertion of the debtors’ claims by O’Hallo-ran against PWC.

In considering this question and conducting our de novo review of the dismissal of O’Halloran’s claims, we are required to consider the allegations of fact and inferences from those allegations “in the light most favorable to” O’Halloran. Aguilera, 905 So.2d at 87. “[A]ll reasonable inferences are allowed in favor of the plaintiff[’s] case.” Orlando Sports Stadium, Inc. v. State ex rel. Powell, 262 So.2d 881, 883 (Fla.1972). We also must consider this question against the backdrop of the provision of rule 1.110(g) that “[a] party may ... state as many separate claims ... as that party has, regardless of consistency.”

The complaint against PWC contains two allegations that are particularly pertinent to the in pari delicto issue. The first of these is the allegation that “[a]t no time during the period of PWC’s engagement was Keller [Financial] merely a ‘Ponzi scheme’ organized for the purpose of engaging in criminal activity or committing fraud.” The second is the allegation that the former president of Keller Financial, Michael Nixon, testified under oath that “had PWC recommended an immediate bankruptcy for Keller [Financial] in the spring of 1997, Nixon would have followed PWC’s advice and placed Keller [Financial] into bankruptcy at that time and would not have pursued a restructuring plan involving another company.”

Both of these allegations — -which we are required to accept as true in considering the motion to dismiss — seriously undermine the in pari delicto defense. Both allegations support the conclusion that even if agents of the corporation were somehow complicit in the alleged wrongdoing of PWC, the adverse interest exception applies and the 'wrongdoing of the corporate agents therefore should not be imputed to Keller Financial.

Furthermore, it is not clear from the allegations of the complaint that the alleged wrongdoing of PWC is the same as the alleged wrongdoing of the agents of Keller Financial. Viewing the allegations in the light most favorable to O’Halloran, the alleged misconduct of PWC can be considered distinct from the alleged misconduct of the corporate agents. There is no allegation that the corporate insiders participated in the specific wrongdoing alleged against PWC of pursuing the merger with actual or constructive knowledge that doing so was futile.

Accordingly, we hold that the trial court erred in dismissing claims based on the in pari delicto defense. Of course, our holding with respect to the trial court’s ruling on the in pari delicto defense as a basis for dismissal of claims does not foreclose PWC from further litigating the in pari delicto defense issue and establishing the facts necessary to support that defense.

4. The Issue of the Noteholder Assignments

The trial court ruled that O’Halloran was precluded from bringing the claim based on the noteholder assignments because a trustee in bankruptcy “is not empowered to bring creditors’ claims.” In dismissing the claim based on the note-holder assignments, the trial court also relied on the potential for “double recovery” by nonassigning noteholders. We conclude that the trial court erred in dismissing O’Halloran’s noteholder claim.

In' support of the trial court’s ruling, PWC relies primarily on Caplin v. Marine Midland Grace Trust Co. of New York, 406 U.S. 416, 434, 92 S.Ct. 1678, 32 L.Ed.2d 195 (1972), which held that a bankruptcy trustee did “not have standing to sue an indenture trustee on behalf of debenture holders.” Because the trustee in Caplin had not brought suit based on assignments of the claims of the debenture holders, we conclude that the instant case is easily distinguishable and that Caplin does not provide a basis for affirming the trial court’s ruling with respect to the noteholder claims brought by O’Halloran.

The Caplin Court relied on three related grounds to support the conclusion that the trustee lacked standing. First, the Court noted that “nowhere in the statutory scheme is there any suggestion that the trustee in reorganization is to assume the responsibility of suing third parties on behalf of debenture holders.” 406 U.S. at 428, 92 S.Ct. 1678. Second, the Court stated that the debenture holders “are capable of deciding for themselves whether or not it is worthwhile to seek to recoup whatever losses they may have suffered by an action against the indenture trustee.” Id. at 431, 92 S.Ct. 1678. The court concluded that as “the persons truly affected,” the debenture holders “should make their own assessment of the respective advantages and disadvantages, not only of litigation, but of various theories of litigation.” Id. Third, the Court observed that “a suit by [the bankruptcy trustee] on behalf of debenture holders may be inconsistent with any independent actions that they might bring themselves.” Id. at 431-32, 92 S.Ct. 1678.

The three problems identified by the Court in Caplin are all remedied by the giving of unconditional assignments of claims to a bankruptcy trustee. In so understanding Caplin, we follow Logan v. JKV Real Estate Services (In re Bogdan), 414 F.3d 507, 512 (4th Cir.2005), which concluded that a “per se ban on trustee suits based on assignments from creditors finds no support in Caplin.”

The assignments made to the bankruptcy trustee which were at issue in Logan were of claims by certain mortgage lender creditors against alleged coconspirators of the debtor corporation in a scheme to defraud the mortgage lender creditors. The Logan court pointed to the provision of § 541(a)(7), which provides that the “property of the estate” includes “ ‘[a]ny interest in property that the estate acquires after the commencement’ of [the] bankruptcy case.” 414 F.3d at 512 (quoting § 541(a)(7)). “Thus, the unconditional assignments” constitute “ ‘property of the estate’ that the trustee is authorized to ‘collect and reduce to money’ on behalf of the estate.” Id. (citing Steinberg v. Kendig (In re Ben Franklin Retail Stores), 225 B.R. 646, 650 (Bankr.N.D.Ill.1998)). The court concluded that by virtue of the absolute assignments to the trustee, the bankruptcy estate was “the real party in interest” because the trustee was “seeking to collect money it claims the alleged cocon-spirators owe the trustee as assignee and representative of the estate, not money owed to specific creditors.” Id. at 513.

Other courts have similarly concluded that a trustee may bring suit based on assigned claims. See Schnelling v. Thomas (In re AgriBioTech), 319 B.R. 207, 215 (Bankr.D.Nev.2004) (“Because the assign- or-[creditors] assigned their claims in full to the Trustee under the [bankruptcy] Plan, those claims became property of the estate under section 541(a)(7) which the Trustee has standing to pursue.”); Sender v. Mann, 423 F.Supp.2d 1155, 1173-74 (D.Col.2006) (holding that bankruptcy trustee had standing to bring action based on unconditional assignment of claims by creditors); Semi-Tech Litigation, LLC v. Bankers Trust Co., 272 F.Supp.2d 319, 323 (S.D.N.Y.2003) (“Caplin is distinguishable from this case in that the debenture holders there, in contrast to the situation here, had not assigned their claims to the trustee.”), rev’d in part on other grounds, In re Bankers Trust Co., 450 F.3d 121 (2d Cir.2006); Collins v. Kohlberg & Co. (In re Sw. Supermarkets, L.L.C.), 315 B.R. 565, 570-71 (Bankr.D.Ariz.2004) (holding that trustee had standing to pursue on behalf of bankruptcy estate claims assigned by creditors for the benefit of the estate).

The Logan court also held that although the doctrine of in pari delicto would be applicable to the debtor, it would not bar the trustee’s suit based on the assignments. The court stated that “[a]s assign-ee, the trustee stands in the shoes of the [assigning creditors], thereby assuming all rights and interests that the [assigning creditors] have in the causes of action and becoming subject to all defenses that could have been asserted against the [assigning creditors], not [the debtors].” 414 F.3d at 514; see also Sender, 423 F.Supp.2d at 1174 (“[In pari delicto ] applies to claims a bankruptcy trustee brings as a debtor, but not as a representative of creditors, since creditors are not culpable for the misconduct of the corporate entity. This doctrine therefore does not bar [the trustee’s] claims brought on behalf of creditors ... by assignment.” (citing Caplin, 406 U.S. 416, 92 S.Ct. 1678)).

Here, O’Halloran’s complaint alleged that “[u]pon execution of the respective assignments, those claims became property of the Bankruptcy Estate pursuant to Bankruptcy Code section 541(a)(7)” and that “[t]he assigned claims can no longer be pursued by the individual assignors.” Documents that were subject to judicial notice by the trial court indicate that “any proceeds derived from [the assigned] claims will be treated as property under the Liquidation Plan and distributed in accordance therewith.” Although the form of assignment — which was also subject to judicial notice — does not expressly state that the assignment of claims was made unconditionally and for the benefit of the bankruptcy estate, for purposes of the motion to dismiss, the factual allegations of the complaint must be accepted as true. Those allegations bring the noteholder claims squarely under the rule articulated in Logan — which we adopt — with respect to unconditionally assigned claims of creditors.

Finally, we reject the trial court’s speculation concerning the potential for “double recovery” by nonassigning noteholders. We are unconvinced that such a double recovery will necessarily result even if the noteholders’ claim is successfully litigated. Furthermore, we see no reason that such a potential should prevent the assigning noteholders from choosing how they wish to pursue their claims against PWC.

We therefore conclude that the trial court erred in dismissing the noteholder claim.

5. Conclusion

The final judgment in favor of PWC is reversed, and the case is remanded for further proceedings.

Reversed and remanded.

NORTHCUTT and WALLACE, JJ„ Concur.

      . Because we conclude that the claims against PWC were preserved, we need not address the argument of O’Halloran that PWC was not a party to the bankruptcy proceeding and thus was not entitled to assert any res judicata effect of the bankruptcy confirmation order.

      . The Latin maxim is “In pari delicto potior est conditio defendentis.” Black's Law Dictionary 1725, appendix B.

      . The in pari delicto doctrine is a corollary of the doctrine of unclean hands which requires “that no one shall be permitted to profit from his own fraud or wrongdoing, and that one who seeks the aid of equity must do so with clean hands.” Yost v. Rieve Enters., Inc., 461 So.2d 178, 184 (Fla. 1st DCA 1984).

      .Application of the doctrine may yield to public policy considerations: "The defense of in pari delicto is not woodenly applied in every case where illegality appears somewhere in the transaction; since the principle is founded on public policy, it may give way to a supervening public policy.” Kulla v. E.F. Hutton & Co., 426 So.2d 1055, 1057 n. 1 (Fla. 3d DCA 1983); see also Turner v. Anderson, 704 So.2d 748, 751 n. 2 (Fla. 4th DCA 1998) (relying on Kulla).

      . Similarly, the adverse interest exception to the imputation rule has been held inapplicable "where the transaction on behalf of the principal is entrusted solely to the officer or agent having the knowledge.” Nerbonne, N.V., 685 So.2d at 1031. The "sole actor doctrine” may be invoked by an innocent third party against the corporation because in such circumstances it makes "sense to impute the agent’s knowledge to the corporation, so that the corporation, rather than the third party, should suffer at the hands of the corporate agent.” Id. at 1032. By wholly entrusting a matter to its agent, the corporation bears the risk that such an unaccountable agent will act adversely to the corporation’s interest. This "sole actor doctrine” — which requires imputation to the corporation of the sole actor’s conduct even when that conduct is adverse to the corporation — may not be invoked by an agent against the agent’s corporation. Whether the “sole actor doctrine” can be raised in connection with a defense of in pari delicto by a third party where the third party itself has been accused of wrongdoing is an unsettled question in Florida law.