text:
    In re AMENDMENTS TO FLORIDA RULE OF CRIMINAL PROCEDURE 3.790.
    No. SC05-2381.
    Supreme Court of Florida.
    July 5, 2007.
    William C. Vose, Chair, The Florida Bar Criminal Procedure Rules Committee, Orlando, FL, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, FL, for Petitioner.
    Ralph S. Behr, Fort Lauderdale, FL, Responding with comments.
   PER CURIAM.

In response to the Court’s request, The Florida Bar’s Criminal Procedure Rules Committee has filed an out-of-cycle report of proposed amendments in accordance with Florida Rule of Judicial Administration 2.140(f). We have jurisdiction. See art. V, § 2(a), Fla. Const.

BACKGROUND

In conjunction with the Court’s request concerning Florida Rules of Criminal Procedure 3.131, Pretrial Release, and 3.132, Pretrial Detention, the Criminal Procedure Rules Committee (Committee) filed an out-of-cycle report and proposed amendments to rule 3.790, Probation and Community Control. The proposed amendments implemented provisions of the Jessica Lunsford Act, which became effective September 1, 2005, and which concerns the release of high-risk sexual offenders and predators who are arrested for committing a material violation of probation or community control. See ch. 2005-28, § 13, at 223-24, Laws of Fla. The proposals were approved unanimously by the Committee’s Fast Track Subcommittee, were approved by a vote of twenty-five to one by the full Committee, and were approved unanimously by The Florida Bar Board of Governors.

The proposed amendments were published for comment in the July 15, 2006, edition of The Florida Bar News, and a single comment was filed. The Court then considered the Committee’s proposals and the comment and issued an order tentatively approving the proposals, but revising certain language in subdivision (b)(2). The Court directed the Committee to respond. The Committee filed a response, wherein it stated that it agrees with the Court’s revisions. The Committee approved the revisions by a vote of twenty to one.

While this matter was pending, the Legislature enacted the Anti-Murder Act, which became effective March 12, 2007, and which concerns the release of violent felony offenders of special concern and certain other offenders who are arrested for committing a material violation of probation or community control. See ch. 2007-2, Laws of Fla. The Court then revised the pending amendments to rule 3.790 to implement a provision of the Anti-Murder Act. The Court issued an order returning the revised proposals to the Committee, to be considered under its fast track procedures. The Court also asked the Committee to consider whether additional amendments to rule 3.790, or any other rules, are needed to implement the Anti-Murder Act. The Committee now has filed its response wherein the Committee proposes that new subdivision (b)(2) of rule 3.790 be reserved for Lunsford Act proceedings and that new subdivision (b)(3) be added for Anti-Murder Act proceedings. The Committee concluded that no other emergency amendments are needed to implement the Anti-Murder Act. The Committee approved the revised proposals by a vote of twenty-four to one, and the Executive Committee of The Florida Bar Board of Governors approved the proposals by a vote of eight to zero.

AMENDMENTS

The Committee proposes that new subdivision (b)(2), Lunsford Act Proceedings, be added to rule 3.790 to implement the Jessica Lunsford Act. This subdivision provides that when an offender is on probation or community control for certain sex crimes — or is a registered sex offender or registered sexual predator — and is arrested for violating his or her probation, the court must hold a hearing and make a finding that the offender is not a danger to the public before releasing him or her with or without bail. In order to permit adequate time for the parties to prepare for the hearing, the “danger” hearing may be held no sooner than twenty-four hours after arrest; a “good cause” requirement for requesting a delay is imposed upon the prosecution. Procedural safeguards for the defendant are set forth in the subdivision, including the right to be heard in person or through counsel, to present evidence, and to cross-examine witnesses. And finally, the subdivision lists criteria that a court may consider in determining whether the defendant poses a danger to the public.

As noted above, the Court revised certain language in this proposed new subdivision to track the language of the Lunsford Act, and returned the revised proposal to the Committee for consideration. The Committee in its response stated that it agrees with this revision. We adopt the revised new subdivision (b)(2).

The Committee proposes that new subdivision (b)(3), Anti-Murder Act Proceedings, be added to address the Anti-Murder Act. This proposed new subdivision provides that when a violent felony offender of special concern and certain other offenders are arrested for a material violation of probation or community control the warrant shall not be dismissed before the violation hearing is held, and the defendant shall not be granted pre-hearing release. If, at the hearing, the court determines that the defendant has committed a material violation, the court shall make findings as to whether the defendant poses a danger to the community, based on enumerated criteria. If the court finds that the defendant poses a danger to the community, the court shall revoke probation or community control and sentence the defendant up to the legal maximum for the underlying offense. If the court finds that the defendant does not pose a danger to the community, the court may revoke, modify or continue the probation or community control.

This proposed new subdivision appears to implement the relevant provisions of the Anti-Murder Act appropriately, except in two respects. First, the proposal makes no provision for the fact that the Lunsford Act and the Anti-Murder Act appear to operate coextensively with respect to certain crimes, and that the provisions of the Anti-Murder Act control under such circumstances. And second, the proposal fails to state clearly within the text of the subdivision that this subdivision is applicable to “violent felony offenders of special concern” and certain other related categories of offenders. We have added language addressing both these concerns. We adopt proposed new subdivision (b)(3), as revised herein.

CONCLUSION

We adopt on an emergency basis the amendments to the Rules of Criminal Procedure as set forth in the attached appendix. Additions are indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective immediately upon release of this opinion. Because the Court did not publish the amendments in their entirety prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 3.790. PROBATION AND COMMUNITY CONTROL

(a) [No change]

(b) Revocation of Probation or Community Control; Judgment; Sentence.

(1) Generally. Except as otherwise provided in subdivisions (b)(2) and (b)(3) below, Wwhen a probationer or a community controllee is brought before a court of competent .jurisdiction charged with a violation of probation or community control, the court shall advise the person of the charge and, if the charge is admitted to be true, may immediately enter an order revoking, modifying, or continuing the probation or community control. If the violation of probation or community control is not admitted by the probationer or community eontrollee, the court may commit the person or release the person with or without bail to await further hearing or it may dismiss the charge of violation of probation or community control. If the charge is not admitted by the probationer or community eontrollee and if it is not dismissed, the court, as soon as practicable, shall give the probationer or community eontrollee an opportunity to be fully heard in person, by counsel, or both. After the hearing, the court may enter an order revoking, modifying, or continuing the probation or community control. Following a revocation of probation or community control, the trial court shall adjudicate the defendant guilty of the crime forming the basis of the probation or community control if no such adjudication has been made previously. Pronouncement and imposition of sentence then shall be made on the defendant.

(2) Lunsford Act Proceedings. When a probationer or community eontrollee is arrested for violating his or her probation or community control in a material respect and is under supervision for any criminal offense proscribed in chapter 794, Florida Statutes, section 800.04(4), Florida Statutes, section 800.04(5), Florida Statutes, section 800.04(6), Florida Statutes, section 827.071, Florida Statutes, or section 847.0145, Florida Statutes, or is a registered sexual predator or a registered sexual offender, or is under supervision for a criminal offense for which, but for the effective date, he or she would meet the registration criteria of section 775.21, Florida Statutes, section 943.0435, Florida Statutes, or section 944.607, Florida Statutes, the court must make a finding that the probationer or community eontrollee is not a danger to the public prior to release with or without bail.

(A) The hearing to determine whether the defendant is a danger to the public shall be conducted by a court of competent jurisdiction no sooner than 24 hours after arrest. The time for conducting the hearing may be extended at the request of the accused, or at the request of the state upon a showing of good cause.

(B) At the hearing, the defendant shall have the right to be heard in person or through counsel, to present witnesses and evidence, and to cross-examine witnesses.

(C) In determining the danger posed by the defendant’s release, the court may consider:

(i) the nature and circumstances of the violation and any new offenses charged;

(ii) the defendant’s past and present conduct, including convictions of crimes;

(iii) any record of arrests without conviction for crimes involving violence or sexual crimes;

(iv) any other evidence of allegations of unlawful sexual conduct or the use of violence by the defendant;

(v) the defendant’s family ties, length of residence in the community, employment history, and mental condition;

(vi) the defendant’s history and conduct during the probation or community control supervision from which the violation arises and any other previous supervisions, including disciplinary records of previous incarcerations;

(vii) the likelihood that the defendant will engage again in a criminal course of conduct;

(viii) the weight of the evidence against the defendant; and

(ix) any other facts the court considers relevant.

(3) Anti-Murder Act Proceedings. The provisions of this subdivision shall control over any conflicting provisions in subdivision (b)(2). When a probationer or community controllee is arrested for violating his or her probation or community control in a material respect and meets the criteria for a violent felony offender of special concern, or for certain other related categories of offender, as set forth in section 948.06(8), Florida Statutes, the defendant shall be brought before the court that granted the probation or community control and, except when the alleged violation is based solely on the defendant’s failure to pay costs, fines, or restitution, shall not be granted bail or any other form of pretrial release prior to the resolution of the probation or community control violation hearing.

(A) The court shall not dismiss the probation or community control violation warrant pending against the defendant without holding a recorded violation hearing at which both the state and the accused are represented.

(B) If, after conducting the hearing, the court determines that the defendant has committed a violation of probation or community control other than a failure to pay costs, fines, or restitution, the court shall make written findings as to whether the defendant poses a danger to the community. In determining the danger to the community posed by the defendant’s release, the court shall base its findings on one or more of the following:

(i) The nature and circumstances of the violation and any new offenses charged;

(ii) The defendant’s present conduct, including criminal convictions;

(iii) The defendant’s amenability to nonincarcerative sanctions based on his or her history and conduct during the probation or community control supervision from which the violation hearing arises and any other previous supervisions, including disciplinary records of previous incarcerations;

(iv) The weight of the evidence against the defendant; and

(v) Any other facts the court considers relevant.

(C) If the court finds that the defendant poses a danger to the community, the court shall revoke probation or community control and sentence the defendant up to the statutory maximum, or longer if permitted by law.

(D) If the court finds that the defendant does not pose a danger to the community, the court may revoke, modify, or continue the probation or community control or may place the probationer into community control as provided in section 948.06, Florida Statutes.

      . The Committee's proposed amendments to rules 3.131 and 3.132 were severed from the present case and are addressed in In re Florida Rules of Criminal Procedure 3.131 & 3.132, 948 So.2d 731 (Fla.2007).

      . The comment was filed by a Florida attorney.

      . The Committee had proposed that the subdivision provide as follows: "[T]he court must determine whether the probationer or community controllee is a danger to the public prior to release with or without bail.” The Court revised this language to read as follows: "[T]he court must make a finding that the probationer or community controllee is not a danger to the public prior to release with or without bail.”

      . In addition to the amendments discussed above, there are also several additional amendments as reflected in the appendix.

      . An original and nine paper copies of all comments must be filed with the Court on or before September 4, 2007, with a certificate of service verifying that a copy has been served on the committee chair, H. Scott Fing-erhut, P.A., 2400 S. Dixie Hwy., F1.2, Miami, FL 33133-3156, along with a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee chair has until September 24, 2007, to file a response to any comments filed with the Court. Electronic copies of all comments also must be filed in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004) (on file with Clerk, Fla. Sup.Ct.).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael CUTAIO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1860.
    District Court of Appeal of Florida, First District.
    May 2, 2007.
    Rehearing Denied June 29, 2007.
    Michael Cutaio, 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, KAHN, and PADOVANO, JJ., concur.


text:
    Joseph Patrick McCORVEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1980.
    District Court of Appeal of Florida, First District.
    May 24, 2007.
    Rehearing Denied July 23, 2007.
    Joseph Patrick McCorvey, 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.

WOLF, DAVIS, and THOMAS, JJ., concur.


text:
    Joseph GRANDY, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-348.
    District Court of Appeal of Florida, Fourth District.
    May 30, 2007.
    Carey Haughwout, Public Defender, and Ellen Griffin, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher Zibura, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm Joseph Grandy’s Prison Re-leasee Reoffender designation and sentence on the basis of Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and, as we did in Yisrael, certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). See Yisrael, 938 So.2d at 550.

SHAHOOD, GROSS and MAY, JJ., concur.


author: KLEIN, J.

text:
    Douglass Eugene PEREBOOM, Appellant, v. Sara Ann PEREBOOM, Appellee.
    No. 4D06-1170.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Rehearing Denied Aug. 15, 2007.
    Odette M. Bendeck of Fisher & Ben-deck, P.A., West Palm Beach, and Philip M. Burlington of Burlington & Rocken-bach, P.A., West Palm Beach, for appellant.
    No brief filed for appellee.
   KLEIN, J.

The husband appeals a dissolution judgment, arguing that the trial court erred in classifying his accounting practice as a marital asset, and in requiring him to pay a portion of the parties’ income tax for 2005 as a non-marital debt. We reverse on both issues.

When the parties married in 1995 the husband had his own incorporated CPA practice, and the testimony of the husband, which was undisputed, was that the practice had not increased during the marriage. The size of the practice, including the number of employees, amounts of accounts receivable, and liabilities had remained essentially the same. The trial court found that the accounts receivable of the CPA practice were a marital asset and, after deducting for the tax liability on the accounts receivable, awarded the wife one half of their total value.

Because the husband owned his accounting practice before the parties were married, it was a non-marital asset under section 61.075(5)(b), Florida Statutes (2006), but any enhancement in the value of the practice during the marriage might have qualified as a marital asset under section 61.075(5)(a). Although we have found no case addressing the burden of proof as to enhancement, the burden generally is on the party alleging entitlement to an asset. Moon v. Moon, 594 So.2d 819, 822 (Fla. 1st DCA 1992). In this case, the husband carried his burden of proof establishing that this was a non-marital asset by showing that he owned the practice at the time of the marriage. Consistent with the general rule that the party alleging entitlement to an asset has the burden of proof, the burden was on the wife to establish any enhancement in value of the non-marital asset which would bring it within the requirements of section 61.075(5)(a). In this case, the wife did not prove any increase.

In Anson v. Anson, 772 So.2d 52 (Fla. 5th DCA 2000), the husband worked for a company in which he owned sixty percent of the stock before the parties were married, and the court held that it would only be the appreciation in the value of the stock of the corporation which could qualify as a marital asset. In this case, the husband’s accounting practice was incorporated, and accordingly any enhancement would have to have been in an increase in the value of the stock in the corporation. There was no such evidence, and the trial court’s award to the wife of a portion of the accounts receivable cannot be sustained.

Husband also argues that the trial court erred in making him bear a greater portion of the parties’ income tax liability for 2005 than the wife. The trial court ruled that the parties were equally liable for taxes up to August 30th of that year, but that the husband would be solely responsible for the taxes incurred for the remainder of the year. The court picked August 30th because that was the date of the temporary relief order. The marriage was not dissolved, however, until 2006, and husband paid the expenses of both parties from his 2005 income for the entire year. The trial court may have believed it was proper to cut off the tax liability, because it also cut off the liability for credit cards on August 30, but in this case there was a distinction. Once the temporary relief order was entered, the parties were individually responsible for credit card debt which each of them incurred, but the same cannot be said for the husband’s 2005 income, all of which went for the parties’ support, and was subject to income tax for the full calendar year.

We have considered the other issues raised by husband and find them to be without merit. We accordingly affirm the judgment in all respects except for the award of one-half of the accounts receivable and the imposition of the tax liability on the husband for a portion of 2005.

Affirmed in Part, Reversed in Part.

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


text:
    David P. KEVER, Petitioner, v. James R. McDONOUGH, Florida Department of Corrections, Respondent.
    No. 1D06-3480.
    District Court of Appeal of Florida, First District.
    June 6, 2007.
    Rehearing Denied July 26, 2007.
    Bill McCollum, Attorney General and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Kemp v. McDonough, 955 So.2d 635 (Fla. 1st DCA 2007).

KAHN, LEWIS and HAWKES, JJ., concur.


author: TORPY, J.

text:
    John MARSHALL and Geraldine Marshall, etc., Appellants, v. HQM OF WINTER PARK, LLC, and Home Quality, etc., Appellee.
    No. 5D06-885.
    District Court of Appeal of Florida, Fifth District.
    June 8, 2007.
    Carlos R. Diez-Arguelles of Martinez, Manglardi, Diez-Arguelles & Tejedor, Orlando, for Appellants.
    Kathleen M. Bonczyk, Palm Beach Gardens, for Appellees.
   TORPY, J.

In this wrongful death case based upon alleged nursing home negligence, Appellants, John and Geraldine Marshall, as personal representatives of the estate of their son, Joseph Marshall, challenge the final order granting summary judgment in favor of Appellees, HQM of Winter Park, LLC and Home Quality Management, Inc. Concluding that the grant of summary judgment was improper, we reverse.

On March 4, 2005, Joseph Marshall was admitted to Appellees’ facility for care related to an apparently terminal condition. The following day he died. The primary issue in this appeal is whether Appellees conclusively negated Appellants’ allegation and supporting medical opinion that Joseph’s death was caused by the negligence of Appellees.

At the hearing on Appellees’ motion for summary judgment, Appellees argued that Joseph’s death was caused by the apparent terminal condition that preceded his admission into Appellees’ facility. Although Appellees offered no medical testimony in support of their motion, they did file the death certificate for Joseph, which listed the causes of death and supported Appellees’ argument. Appellants, in turn, filed an affidavit of a doctor who opined that the cause of death was aspiration and vomiting due to the failure of Appellees to appropriately monitor Joseph’s oxygen levels throughout his residence, a cause not listed on the death certificate.

In granting summary judgment, the trial judge apparently gave conclusive effect to the death certificate and disregarded the opinion of Appellants’ expert. This was error. A death certificate is prima facie proof of the “fact, place, date, and time of death as well as the identity of the decedent.” § 731.103(1), Fla. Stat. (2007). It does not constitute prima facie proof of the cause of death, nor does it create conclusive proof of any fact related to the death. As it relates to the cause of death, it simply states the ultimate opinion of the attesting physician. When, as here, a conflicting medical opinion on causation is offered, summary judgment is not appropriate.

We have carefully considered the remaining arguments of Appellees related to the timeliness and sufficiency of the counter-affidavit and reject these arguments for the reasons argued by Appellants.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


text:
    AEDES MOSQUITO CONTROL, INC., a corporation, Appellant, v. SPRINGER EQUIPMENT, INC., a Florida corporation, and M.L. “Doc” Springer, a/k/a Marion Springer, Appellees.
    No. 1D06-2806.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Neil L. Weinreb, Jacksonville; Carl D. Dawson of Dawson, Galant & Sulik, Jacksonville; William H. Folsom, Jr., Jacksonville, for Appellant.
    Tracy L. Wenzel and Jeremy T. Simons of Heekin, Malin & Wenzel, P.A., Jacksonville, for Appellees.
   PER CURIAM.

AFFIRMED. See McCormick Machinery, Inc. v. Julian E. Johnson and Sons, Inc., 523 So.2d 651 (Fla. 1st DCA 1988); Giallo v. New Piper Aircraft, Inc., 855 So.2d 1273, 1275 (Fla. 4th DCA 2003) (holding that a party cannot recover for fraudulent representations which are disclaimed in a later written agreement).

BROWNING, C. J., and WOLF and THOMAS, JJ., concur.


text:
    Horace RUCKER, Petitioner, v. STATE of Florida and Florida Parole Commission, Respondents.
    No. 1D07-2762.
    District Court of Appeal of Florida, First District.
    June 18, 2007.
    Rehearing Denied July 20, 2007.
    Horace Rucker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005); Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

BENTON, PADOVANO, and THOMAS, JJ., concur.


author: WARNER, J.

text:
    S.K., the Father, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D06-3830.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Denise E. Kistner of Law Offices of Denise E. Kistner, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jeffrey P. Bassett, Assistant Attorney General, Fort Lauderdale, for appellee.
   WARNER, J.

A father, in prison for life, appeals the trial court’s order adjudicating his minor child dependent as to the father. He claims that the trial court deprived him of due process by failing to appoint an attorney ad litem to represent him when he was indisputably incompetent. Because he was represented by counsel throughout the proceedings, no violation of due process occurred. The trial court correctly ruled that the dependency proceedings could not be delayed to await his restoration to competency. Finding ample evidence to support the trial court’s adjudication of dependency, we affirm.

In August 2005 the Department of Children and Families filed a petition to declare K.K., a thirteen-year-old child, dependent as to both his mother and his father, S.K. The mother had abused the child and suffered from mental disorders. S.K. had been convicted of first-degree murder in 1998 and since that time had not had any contact with the child. The mother consented to the dependency before the arraignment.

The Department experienced difficulty in getting S.K. transported to an arraignment hearing. When the court finally held one in December 2005, S.K. exhibited bizarre thought patterns, prompting the court to appoint counsel for S.K. Ultimately, the court ordered a competency examination for S.K. Because of difficulties both with scheduling and with S.K., the competency evaluation did not occur until late spring of 2006.

After the examination report was received, S.K’s counsel moved for a continuance of the final hearing, because he believed his client to be incompetent. Counsel wanted him restored to competency before proceeding with the hearings. At the hearing, counsel called the psychologist, Dr. Brannon, to testify with respect to S.K.’s competency. He testified that under the criminal standard, S.K’s psychotic disorders rendered him incompetent to participate in his defense. Those disorders would prevent S.K. from engaging in behaviors necessary for parenting and rendered him a danger to himself and others. S.K.’s counsel also requested the appointment of an attorney ad litem for S.K. Unsure of how to proceed where neither the statutes nor the rules addressed the issue of incompetency of a parent, the trial court continued the final hearing for thirty days.

At the final hearing, S.K’s counsel objected again to the failure to appoint an attorney ad litem, but the trial court refused, mainly because there was no funding for attorneys ad litem. The hearing proceeded with S.K’s counsel representing S.K. The trial court listened to S.K’s comments and arguments throughout with patience. S.K. confused this dependency hearing with his criminal proceedings. However, he was clear that he did not want to be responsible for support for K.K., and he was quite concerned about owing money for his care.

The only witness to testify at the hearing was a child protective investigator. Without objection, she testified that her investigation revealed that S.K. was sentenced to life in prison. Based upon her investigation, he had not paid any child support for K.K., nor has the child received any communication from S.K. When the Department asked about statements from the mother regarding S.K.’s communication, S.K’s counsel objected, and over objection, the investigator testified that the mother had told him that S.K. had not paid support or communicated with K.K. Should S.K. ever get out of prison, the investigator would recommend services to be provided for S.K., as S.K. has not seen K.K. for a long time.

Counsel for the father moved for a directed verdict, claiming that the Department failed to show that the father had the ability to provide child support or establish some type of relationship with the child. Counsel argued that the mother’s out-of-court allegations concerning S.K’s failure to provide support were not corroborated and that the mother was not subject to cross-examination. At the conclusion of the hearing, the court found the child dependent because “the father has not been able to provide” and “will not be able to provide for the child in the foreseeable future.”

On August 25, 2006, the trial court entered a Dependency Proceedings Order of Disposition. This order, however, largely mirrored the prior order of adjudication and included the following findings:

The father, [S.K.], has abandoned the child as defined in Florida Statute 39.01(1) in that the father, while being able, has made no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. The father is currently incarcerated at Dade County Correctional Institution since 1998, sentenced to life for a first degree murder charge.
Furthermore, on March 16, 2006, Dr. Michael P. Brannon conducted a competency evaluation on [S.K.] and reduced his findings to a report dated March 18, 2006 which was accepted into evidence without opposition. He concluded that [S.K.] was not competent and posed a risk of harm to himself and others.
These activities and/or environments harmed the child as defined in Florida Statutes 39.01(30) and/or caused the child’s physical, mental or emotional health to be significantly impaired.

The tasks for the father in the disposition order included following the recommendations in his competency evaluation in order to regain competence, appropriately participating in services made available at the correctional facility, completing a parental education program “as may be available,” and participating in family therapy “as DCF may make available.” S.K. appeals this order of disposition.

S.K.’s main issue of concern involves a denial of his due process rights by proceeding while he was incompetent to participate in his defense and by failing to appoint an attorney ad litem to represent him. S.K. seeks to apply criminal concepts, where a deprivation of liberty of the defendant is at stake, to this civil proceeding where the best interests of his child, not the parent’s best interests, are of paramount concern.

This court recently addressed the due process implications of parental incompetency in a dependency proceeding. See L.M. v. Dep’t of Children & Families, 946 So.2d 42 (Fla. 4th DCA 2006). There, the court-ordered evaluation of the mother in L.M. found her to be incompetent to proceed to trial. The mother, however, was represented by counsel, and the trial court had also appointed an attorney ad litem when the mother failed to appear for the competency evaluation. The mother contended that the court erred in proceeding with the final adjudication when she was incompetent to proceed. Noting that she was represented both by counsel and, in some hearings, by an attorney ad litem, we determined that the mother had the benefit of counsel at every step of the proceedings. This court noted that the best interests of the children had to be considered, and explained:

To delay the proceedings indefinitely due to the mother’s competency issues would deprive the children of their right to permanency and run contrary to the goal that no child remain in foster care longer than one year.... We hold that to the extent the mother’s due process rights were affected by the trial court’s decision to proceed, those rights must yield to the needs of the children.

Id. at 46.

Both S.K. and the Department note that Chapter 89, Florida Statutes, gives little direction to the court as to how to proceed in a dependency case where a parent is incompetent. Section 39.407(15), Florida Statutes (2006), and Florida Rule of Juvenile Procedure 8.250(b) permit a mental health assessment of a parent when the mental health is in controversy. The rule further authorizes the court to require a parent to undergo “evaluation, treatment, or counseling activities as authorized by law.” Section 39.502(15) requires that a parent who is identified with a mental illness be advised of the availability of mental health advocacy services. However, we find no provision that these services would be available for an incarcerated prisoner.

Section 39.501(2) states that: “The purpose of a petition seeking the adjudication of a child as a dependent child is the protection of the child and not the punishment of the person creating the condition of dependency.” The whole purpose of a dependency proceeding is to protect the child and to provide services and activities to address and correct the problems and issues which gave rise to the dependency and the intervention of the Department to protect the child. If a parent is incompetent, the purpose of the dependency may be to obtain treatment for that parent to restore him to competency so that he can be a functioning parent. It makes no sense and is circular to require the parent to become competent in order to proceed with the dependency adjudication, if the incompetency were the very reason why the dependency proceeding was brought in the first place. We conclude that due process does not require a parent to be restored to competency in order to participate in an adjudicatory hearing on his or her child’s dependency.

In dependency proceedings, a parent is entitled to the services of an attorney, unless he or she waives that right. See Fla. R. Juv. P. 8.320. S.K. did not waive that right, and the trial court appointed an attorney to represent him. Once the doctor determined that S.K. was not competent to assist in the litigation, S.K’s counsel requested that the court appoint an attorney ad litem. We do not understand this request. S.K. already had counsel, and counsel was not prevented from advocating on his behalf. Rule 4-1.14 of the Rules Regulating the Florida Bar provides the following guidance with respect to the representation of a client under a disability:

(a) Maintenance of Normal Relationship. When a client’s ability to make adequately considered decisions in connection with the representation is impaired, whether because of minority, mental disability, or for some other reason, the lawyer shall, as far as reasonably possible, maintain a normal client-lawyer relationship with the client.
(b) Appointment of Guardian. A lawyer may seek the appointment of a guardian or take other protective action with respect to a client only when the lawyer reasonably believes that the client cannot adequately act in the Ghent’s own interest.

Thus, unless the client is completely unable to express and act in his own interest, the attorney can continue to represent him. When the client cannot adequately act in his or her own interest, the lawyer seeks the appointment of a guardian, not an attorney ad litem.

There is no provision in any rule or statute for the appointment of an attorney ad litem for a parent. Provision is made for the appointment of an attorney ad li-tem for a child. See, e.g., Fla. R. Juv. P. 8.217. The explanation is simple. Parents are already provided attorneys, while until recently children were not. As was noted in Amendment to the Rules of Juvenile Procedure, Fla. R. Juv. P. 8.350., 804 So.2d 1206, 1210 (Fla.2001), ‘“attorneys [ad litem] serve the essential role of advocating in court so that the child is represented by an attorney as are all of the other parties.’” (quoting the Children’s Advocacy Foundation brief). Thus, the attorney ad litem performs the duties of an attorney. The parent, already appointed his or her own attorney, does not need another one because he or she is incompetent.

From a review of the record, S.K’s counsel provided exemplary representation for S.K., given very difficult circumstances. He aggressively defended S.K., made the appropriate motions, and never waived any of S.K.’s rights. His job was made most difficult by his client, and we commend the professional manner in which he handled this matter.

As the Rule Regulating the Florida Bar suggests, appointment of a guardian for an incompetent person may be appropriate in some circumstances, even within a dependency proceeding. We need not address that issue, because no one requested the appointment of a guardian. Nor was the appointment of a guardian ad litem requested. In fact, while expert evidence was presented that S.K. was incompetent to participate in his defense and he was a danger to himself and others, the court never found him totally incapacitated to the point that he could not participate and express his ideas and wishes. He actually did that quite well, and once he understood that the proceeding would not result in an order requiring him to support K.K., he acknowledged that he could not have custody of his child (nor did it appear that he wanted that). His only reservation was placing custody of the child with his maternal aunt, whom he said had a house full of guns. The court ordered the state to evaluate the home.

Given the circumstances of this case, S.K. was provided due process and the proceeding was fundamentally fair. In fact, the lawyers and the court bent over backwards to provide due process to S.K. who had no defense to the proceeding at all. The Department proved the need for a dependency adjudication against S.K. with overwhelming evidence. The parties stipulated that the father was convicted of first-degree murder and has been serving a life sentence since 1998. The child protective investigator testified that S.K. had not spoken to his son or supported him. Even if that testimony were hearsay, it would have been harmless, because in addition to S.K’s imprisonment, the competency examination provided more than enough evidence to support a dependency adjudication when the expert testified that S.K. was a danger to himself and others, and his mental disability prevented him from engaging in .appropriate parenting behavior.

For the foregoing reasons, we affirm.

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


author: STEVENSON, C.J.

text:
    Gillian FIELDHOUSE, Appellant, v. TAM INVESTMENT COMPANY, a Florida corporation d/b/a Falls of Margate, Appellee.
    No. 4D06-3432.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.

      Stewart Valencia and Kenneth E. Cohen of Holman, Cohen & Valencia, Hollywood, for appellant.
    James P. Waczewski of Luks, Santaniel-lo, Perez, Petrillo & Gold, Orlando, for appellee.
   STEVENSON, C.J.

Gillian Fieldhouse appeals an order entering final summary judgment in her negligence action against Tam Investment Company, the landlord and owner of the apartment complex at which Fieldhouse was a tenant. Fieldhouse contends that summary judgment was inappropriate because Tam Investment Company had a duty to maintain the premises in a reasonably safe condition and a jury question was presented as to whether her injuries were reasonably foreseeable. Because we find the existence of genuine issues of material fact, we reverse the trial court’s order granting summary judgment in favor of Tam Investment Company.

On March 9, 2003, Fieldhouse was walking in the common area behind her apartment to get her bicycle when she tripped on a tree root that was hidden by leaves. The complaint alleged the leaves created a dangerous concealed condition and Tam Investment Company breached its duty to Fieldhouse by failing to remove the exposed tree root or warn her of the hazardous and dangerous condition of the premises. When moving for summary judgment Tam Investment Company asserted there were no issues of material fact because the root was a natural condition, Fieldhouse knew of the root’s existence before the accident occurred, the company could not have reasonably anticipated that Field-house would be injured, and Fieldhouse’s decision to store her bicycle near the tree created the dangerous condition.

The trial court ultimately granted the company’s motion. Although the order appealed does not state the court’s rationale, the court commented at the motion hearing that liability did not exist because the common area was not used for a special purpose, the root was open and obvious, and the company did not have a duty to warn Fieldhouse or clean the leaves.

We first address the trial court’s belief that a duty did not exist because the common area was not used for a particular purpose. In Fenster v. Publix Supermarkets, Inc., 785 So.2d 737 (Fla. 4th DCA 2001), this court set forth a landowner’s duty to an invitee:

It is well settled that a property owner owes two duties to an invitee, to use reasonable care in maintaining the premises in a reasonably safe condition and to give the invitee warning of concealed perils which are or should be known to the property owner, and which are unknown to the invitee and cannot be discovered by him through the exercise of due care.

Id. at 739. By statute, those duties apply to a property’s common areas. See § 83.51(2)(a)3., Fla. Stat. (2003) (stating that, in the absence of an agreement otherwise, a landowner shall “make reasonable provisions for ... [t]he clean and safe condition of common areas”).

Only a few cases in Florida have analyzed a landowner’s duty to lessen, or warn of, dangers presented by natural conditions that exist on the landowner’s property. However, the Florida Supreme Court has determined that, under the circumstances presented by the facts in a particular case, a landowner may owe a duty of care for dangers posed by natural conditions when an invitee uses the property in a reasonable manner. See Whitt v. Silverman, 788 So.2d 210, 222 (Fla.2001) (“ ‘As to the ‘natural’ condition caused by the growth of weeds, the supposed rule of non-liability is based upon a notion concerning the right to the unrestricted use of one’s land which was founded upon conditions in an overwhelmingly agricultural society and which has therefore long outlived its raison d’etre.’ ”) (quoting Evans v. S. Holding Corp., 391 So.2d 231, 233 (Fla. 3d DCA 1980) (Schwartz, J., dissenting)). Fieldhouse correctly argues that whether it was reasonably foreseeable that she would be injured when walking in the common area of the apartment complex is a question for the trier of fact. See Regency Lake Apartments Assocs., Ltd. v. French, 590 So.2d 970, 973 (Fla. 1st DCA 1991) (holding that a jury question existed concerning whether a landowner could be liable when a tenant was injured by tree roots).

Having determined that the root’s natural condition does not preclude Tam Investment Company from being liable for Fieldhouse’s injuries, we next consider whether Fieldhouse’s prior complaints about the root eliminated any duty Tam Investment Company may have had. As we have previously explained, “although the open and obvious nature of a hazard may discharge a landowner’s duty to warn, it does not discharge the duty to maintain the property in a reasonably safe condition.” Kersul v. Boca Raton Cmty. Hosp., Inc., 711 So.2d 234, 234 (Fla. 4th DCA 1998). “A plaintiffs knowledge of a dangerous condition ... simply raises the issue of comparative negligence and precludes summary judgment.” Fenster, 785 So.2d at 739. Moreover, “the burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.” Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996). “If the record reflects even the possibility of a material issue of fact, or if different inferences can reasonably be drawn from the facts, the doubt must be resolved against the moving party.” Winston Park, Ltd. v. City of Coconut Creek, 872 So.2d 415, 418 (Fla. 4th DCA 2004). Here, despite her previous complaints about the root, Fieldhouse’s testimony that the leaves concealed the root on the day of the injury created a genuine issue of material fact as to whether the danger was open and obvious. This evidence was consequently sufficient to overcome a motion for summary judgment. We therefore reverse and remand for further proceedings.

Reversed and Remanded.

POLEN and TAYLOR, JJ., concur.


author: SHEPHERD, J.

text:
    Jason Jerrod BODIE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-2916.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Rehearing Denied July 19, 2007.

      Bennett H. Brummer, Public Defender, and Maria E. Lauredo, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Maria T. Armas, Assistant Attorney General, for appellee.
    Before FLETCHER and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Defendant, Jason Jerrod Bodie, appeals his convictions on three counts of attempted murder and one count of unlawful possession of a firearm. He argues a new trial is warranted because, through no fault of his, a complete transcript of the proceedings is not available. After a reconstruction hearing held pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), all missing portions of the transcript were agreed to or settled upon by the parties except for the content of the State’s thirty minute closing argument. Defendant, based upon personal recollection, asserts reversal is required as a re-suit of two instances of alleged prosecuto-rial misconduct during the State’s closing argument. Although we register our skepticism concerning the veracity of his assertions, we conclude the missing transcript is not necessary for a full review of the alleged error and affirm the convictions.

I. FACTUAL AND PROCEDURAL HISTORY

This case involves the attempted murders of Teddric Hughes and his cousin, Kareem Terry. Hughes had an apartment in Homestead. In September 2002, an unknown person fired shots into the apartment when Hughes was not there. A man in the neighborhood called “Nut,” initially arrested for the shooting but released, blamed defendant for the crime. According to the State’s theory of the case, defendant sought to retaliate against Hughes because he believed Hughes was spreading the accusation in the neighborhood.

At trial, Hughes testified that a few weeks after the apartment incident, defendant approached Hughes at a local nightclub and asked Hughes if he was looking for him. After exchanging words, the two exited the club and fought briefly in the parking lot. Defendant was in the company of co-defendants Nicholas Flavius and Kenneth Styles; Hughes was with a friend, Montrel Thompson.

Later that evening, Hughes and Thompson went to Hughes’ grandmother’s house and told Terry about the nightclub incident. Shortly thereafter, a beige car drove by and a passenger fired a shot into the air. Hughes, who at the time was standing outside the house near the sidewalk, identified Flavius as the driver, defendant as the front passenger, and Styles as the rear passenger. Hughes ran into the house and summoned the police. The police responded, and after a brief interview with Hughes, suggested he seek refuge at another location.

Following police advice, Hughes and Thompson departed the grandmother’s house in separate vehicles with Thompson in the lead. Unfortunately, the beige car lay in wait at an intersection just a half block away. As Hughes made a left turn, two of the occupants accosted Hughes’ vehicle with gunfire, disabling the vehicle and wounding Hughes. As Hughes dove from his car, he observed both passengers hanging out the windows of the beige car. Hughes returned to his grandmother’s on foot, awakened Terry, and asked Terry to drive him to the hospital. As Terry backed out of his driveway, the beige car emerged again and sprayed Terry’s vehicle with gunfire. None of the fifteen shots fired hit Terry. Hughes suffered additional wounds. AK 47 bullet casings were found at both shooting scenes.

Defendant, Flavius, and Styles were arrested for the crimes. Defendant gave a taped confession, which was played for the jury. On the tape, defendant acknowledged the nightclub altercation, retrieving an assault rifle, pursuing Hughes, and squeezing off between twenty and twenty-five rounds from a rifle at Hughes and Terry. He confessed to disposing of the rifle into a dumpster. When asked what he was trying to accomplish, defendant replied, “Nothing — like I was saying man — it was — I wasn’t — I wasn’t thinking I was speeding man and I just got caught up — I let the incident and the spur of the moment take advantage of everything.” Terry’s and Thompson’s testimony confirmed defendant’s aggression on Hughes and his cousin. After a six-day trial, defendant was convicted of three counts of attempted murder, one count of unlawful possession of a firearm, and sentenced to life in prison.

On appeal, it was discovered that substantial portions of the trial transcript of the last day of trial were missing. We relinquished jurisdiction for the parties to attempt to reconstruct the record. Fla. R.App. P. 9.200(b)(4). At the reconstruction hearing, the parties settled upon, and the court approved, stipulations by the parties relating to six of seven missing segments. However, they could not agree as to what transpired during the State closing argument.

In anticipation of the hearing, the State filed a three-page statement of its closing, prepared with the assistance of the lead prosecutor who had tried the case. The statement concluded by reciting that the State “does not recall any objections being made” to the State’s closing, “and there were no motions for mistrial.” Defendant’s appellate counsel traversed the State’s statement, taking issue only with that single assertion by the State. The response stated:

Appellant maintains that there were objections made during the closing. The prosecutor’s remarks regarding the AK 47 as a ‘military weapon designed for killing people’ were objected to. Also, [defense trial counsel] recalls making an objection to a comment by the prosecutor that there was no evidence showing that Mr. Bodie was not the shooter, and that the only evidence was his own confession.

At the commencement of the hearing, defendant’s appellate counsel swiftly im~ peached her own traverse by tendering a previously executed affidavit of defense trial counsel that “he had no recollection of any of the missing proceedings in this case.” Defense trial counsel, standing with defendant’s appellate counsel at the hearing, reaffirmed the truth of the affidavit, and together the two of them acknowledged that the statements in the response were based on “arguments raised by the defendant.” Upon further probing, it became clear that the assertions made by defendant’s appellate counsel in the traverse were based upon notes the defendant made after he reviewed, eighteen months after the trial concluded, the few salvaged lines of the State’s closing argument, the State’s statement of closing, and the defense closing. The defendant made no contemporaneous notes of the trial proceedings. Nor did defense trial counsel assert any instances of prosecutorial misconduct in his motion for new trial, timely filed just ten days after the verdict of the jury. Finally, neither the prosecution, defense trial counsel, nor the trial judge had any recollection of the defendant’s asserted error.

In sum, the two assertions of prosecuto-rial misconduct urged by the defendant in this case as grounds for a new trial are the product of his own recollection, unsupported by contemporaneous notes taken by him, first asserted eighteen months after the trial of the case, and coincidentally found in the only portion of the record in which there has not been reconstruction agreement. Defendant alleges no other reversible error as a basis for a new trial. Defendant, while present, did not affirm under oath the representations made in the traverse.

II. ANALYSIS

Defendant argues a new trial is required where the transcript of the State’s closing is unavailable, the defense identified improper argument made during closing, the parties could not agree as to what transpired, and the trial court had no independent recollection of the closing argument. He places primary emphasis on his assertion that the prosecutor improperly argued “that there was no evidence that Mr. Bodie was not the shooter, and the only evidence was his own confession.” See Gore v. State, 719 So.2d 1197, 1200 (Fla.1998)(“[I]t is error for a prosecutor to make statements that shift the burden of proof and invite the jury to convict the defendant for some reason other than that the State has proved its case beyond a reasonable doubt.”). He selects as his primary legal authority for this argument, Jones v. State, 780 So.2d 218 (Fla. 2d DCA 2001) (Jones I).

In Jones I, Richard Jones was convicted for resisting arrest without violence and drug possession after a one-day jury trial. The bench conferences recorded inaudible, the defense closing arguments were incomplete, and the State’s closing argument was completely missing. Id. The trial court concluded it was impossible to reconstruct the missing portions of the trial record. Id. On appeal, Jones’s appellate counsel argued that especially because improper closing argument, standing alone, can be grounds for reversal, see e.g., Palazon v. State, 711 So.2d 1176 (Fla. 2d DCA 1998), the absence of the trial transcript “has precluded appellate counsel from evaluating this portion of the trial for error.” Jones I, 780 So.2d at 219. No actual error was asserted. Id. The Second District agreed that mere absence of the trial transcript compelled reversal:

In this case, we conclude that the State’s closing argument is necessary, and its omission compels us to grant a new trial.... Jones is prejudiced by the incomplete transcript because his appellate attorney is incapable of reviewing the State’s closing argument to determine the presence or absence of reversible error.

Id. (internal citations omitted); see also Gervin v. State, 920 So.2d 733 (Fla. 5th DCA 2006)(affording the defendant a new trial where his motion for mistrial and associated testimony were unavailable).

For years, our case law was consistent with Jones I. For example, in Vargas v. State, 902 So.2d 166 (Fla. 3d DCA 2004), quashed by State v. Vargas, 937 So.2d 663 (Fla.2006), remanded to Vargas v. State, 31 Fla. L. Weekly D3134, — So.2d -, 2006 WL 3615192 (Fla. 3d DCA Dec. 13, 2006), expressly intoning Jones I, and in reliance upon our own precedent, see Rozier v. State, 669 So.2d 353 (Fla. 3d DCA 1996), we reversed a defendant’s conviction based upon the unavailability of a transcript of the voir dire of his trial “[ejven though [the defendant] has been unable, either at the [reconstruction] hearing below or on appeal, to identify even a potential source of reversible error in the conduct of the voir dire and instead relies only on the fact that the possibility that one occurred cannot be totally eliminated in the absence of an appropriate record.” Vargas, 902 So.2d at 166. In this same era, in Blasco v. State, 680 So.2d 1052, 1053 (Fla. 3d DCA 1996), we reversed a guilty verdict for a new trial where the State’s rebuttal testimony was not available for review by appellate counsel for error. Again, the defendant had not asserted any specific reversible error. Id. at 1057 (Green, J., dissenting). The Blasco majority reasoned that the mere absence of the rebuttal was sufficient, stating:

Unfortunately, because the notes are lost, and because the trial court’s valiant attempt at reconstruction in the face of vague memories still leaves the record unresolved, we do not know, and are not capable of knowing, whether any reversible error was committed during rebuttal. For this reason we reverse the conviction and remand this matter for a new trial.

Id. at 1053.

However, last year in Jones v. State, 923 So.2d 486, 489 (Fla.2006) (Jones II), the Florida Supreme Court rejected the line of authority that had developed in this and other courts of appeal in Florida that reversals of a conviction were nearly ipso facto required if, through no fault of the defendant, the transcript of a criminal trial was unavailable for review to appellate counsel. Id. at 488, 490 (disapproving Vargas, 902 So.2d at 166)(citing Rozier, 669 So.2d at 353). Instead, approving the reasoning of the case there under review, see Jones v. State, 870 So.2d 904, 905 (Fla. 4th DCA 2004) (Jones III), the supreme court reaffirmed its own earlier authority that to prevail on a claim for a new trial based upon the unavailability of a transcript, “the defendant must demonstrate that there is a basis for a claim that the missing transcript would reflect matters which prejudice the defendant.” Jones II, 923 So.2d at 489. Applying this rule to the facts of that case, the supreme court in Jones II held that the defendant’s personal averment of non-specific Neil-Slappy error was insufficient to require a new trial based upon unavailability of the record of voir dire. According to the court, “Jones’s present assertion [was] based on pure conjecture.” Id. at 490. His conviction was affirmed.

Although left to our own devices, we might inquire whether defendant’s un-sworn assertions of error in this case likewise are sufficiently averred, supported, or credible to “demonstrate a basis for a claim” under the supreme court’s recent pronouncement, defendant nevertheless articulates through counsel two purportedly preserved, specific grounds of error in the State’s final argument, that the prosecutor referred to the AK 47 defendant used to commit the crimes as “a military weapon designed for killing people” and “that there was no evidence showing that Mr. Bodie was not the shooter, and that the only evidence was his own confession.” We treat each assertion on the merits.

As to the former purported remark, we find the assertion of error frivolous. The statement, if made, would have been well within the bounds of a fair final argument. E.g., State v. Comesana, 904 So.2d 462, 464 (Fla. 3d DCA 2005)(“The State’s characterization of [defendant’s] witnesses drew no objection because their testimony changed so many times and was so riddled with inconsistencies that, as the prosecutor maintained, his observations were fair comment and permissible in the context of this trial.”). Moreover, the transcript of the opening statement contains the same remark; and the State’s ballistic expert, while demonstratively displaying and explaining the operation and use of an AK 47 weapon to the jury, told the jury the AK 47 was developed as “the military weapon of the Communist Block Nations designed in 1947.” No objections are recorded in the transcripts at either of these entries.

As to the latter remark, we conclude defendant cannot meet the prejudice prong of the supreme court’s Jones II test. Defendant confessed to the crimes. His participation in the shooting spree is supported both by physical evidence and confirmatory testimony of three other persons gathered into the melee. A burden shifting remark, even if made, does not compel automatic reversal. Spencer v. State, 842 So.2d 52, 76 (Fla.2003)(“[E]rro-neous comments do not require an automatic reversal, but instead should be evaluated according to the harmless error rule.”)(internal quotation omitted); State v. Murray, 443 So.2d 955, 956 (Fla.1984)(“[P]rosecutorial error alone does not warrant automatic reversal of a conviction unless the errors are so basic to a fair trial that they can never be treated as harmless.”). As the Florida Supreme Court said not so long ago, “It makes no sense to order a new trial, because of nonfundamental error committed at trial, when we know beyond a reasonable doubt that the defendant will be convicted again.” State v. Marshall, 476 So.2d 150, 153 (Fla.1985). That is the case here.

CONCLUSION

We reject defendant’s contention that the missing portion of the trial transcript in this case is necessary to a complete review of his conviction.

Even assuming defendant established “a basis for a claim” within the meaning of the supreme court’s recent pronouncement in Jones II, he fails in his obligation to reflect a matter which caused him prejudice. We affirm the conviction and sentence in this case.

Affirmed.

      . The record reflects defendant had both the initial closing argument and the rebuttal.

      . The other deficiencies in the trial transcript included the absence of the transcript of the testimony of a state police witness, the defense rebuttal closing, the reading of the br-structions to the jury, the trial record as it pertained to questions during deliberations, the reading of the verdict, and the separate trial on the firearm possession charge.

      . The grounds asserted in support of a new trial were: (1) the verdict was contrary to the weight of the evidence; (2) the jury’s swift verdict regarding the charge of unlawful possession of a firearm or weapon suggested the jury did not sufficiently deliberate; (3) hearsay statements were introduced; (4) a rifle was introduced for demonstrative purposes; (5) photographs of untreated wounds were introduced, which defendant argued engendered jury sympathy; and (6) the jury failed to grant acquittal as to one of the two counts of attempted murder

      . Two assistant state attorneys were assigned to try defendant. Both attended the reconstruction hearing. The junior prosecutor represented to the court during the course of the hearing his recollection of post-trial discussions of the case that occurred between him and lead counsel in which they observed that no objections occurred during the State closing and the "rarity” of the occurrence.

      .Although the trial judge had no recollection of the closing argument, he stated that if a burden shifting argument of the type alleged by and asserted by defendant had occurred relating to whether defendant was the shooter, he immediately would have interrupted the argument even in the absence of an objection by defense counsel and given a curative instruction.

        . See State v. Slappy, 522 So.2d 18 (Fla.1988); State v. Neil, 457 So.2d 481 (Fla.1984).


author: ALLEN, J. BENTON, J.,

text:
    LAWNWOOD MEDICAL CENTER, INC. d/b/a Lawnwood Regional Medical Center and Heart Institute, Appellant, v. Randall SEEGER, M.D., as President of the Medical Staff of Lawnwood Regional Medical Center, Inc., d/b/a Lawnwood Regional Medical Center and Heart Institute, and Member of the Medical Executive Committee of Lawnwood Regional Medical Center, Inc., d/b/a Lawnwood Regional Medical Center and Heart Institute, Appellee.
    No. 1D06-2016.
    District Court of Appeal of Florida, First District.
    June 21, 2007.

      Stephen J. Bronis and Steve Wisotsky of Zuckerman Spaeder LLP, Miami, for Appellant.
    Major B. Harding of Ausley & McMul-len, Tallahassee; and Richard H. Leven-stein of Kramer, Sewell, Sopko & Leven-stein, Stuart, for Appellee.
    Harold R. Mardenborough, Jr., for Ami-ci American Medical Association and Florida Medical Association, Tallahassee.
    Glenn J. Webber of Seidule & Webber, P.A., Stuart, for Amicus Association of American Physicians & Surgeons.
   ALLEN, J.

The appellant, a Florida for-profit corporation operating an acute-care hospital in St. Lucie County known as Lawnwood Regional Medical Center and Heart Institute (“Lawnwood”), challenges an adverse summary final judgment by which the trial court invalidated a special law, chapter 2003-372, Laws of Florida, the “St. Lucie County Hospital Governance Law.” Because this special law violates article I, section 10 of the Florida Constitution in that it impermissibly impairs the appellant’s obligations to its medical staff under a pre-existing contract between the appellant’s board of trustees and medical staff, and because it also grants a privilege to a private corporation in violation of article III, section ll(a)(12) of the Florida Constitution, we affirm the summary final judgment. Analysis of further grounds provided by the trial court for its judgment being unnecessary to our decision, we do not address these further grounds.

The right to contract is one of the most sacrosanct rights guaranteed by our fundamental law. Chiles v. United Faculty of Florida, 615 So.2d 671 (Fla.1993). In Florida, this right is protected through article I, section 10 of our state constitution: “No bill of attainder, ex post facto law or law impairing the obligation of contracts shall be passed.” Am impairment occurs, in the context of this provision, when a contract is made worse or is diminished in quantity, value, excellence or strength. Pomponio v. Claridge of Pompano Condominium, Inc., 378 So.2d 774 (Fla.1979). In 1993, a contract was established between the appellant’s board of trustees and Lawnwood’s medical staff when bylaws adopted by the medical staff were approved by the board. See, e.g., Naples Community Hospital, Inc. v. Hussey, 918 So.2d 323, 325 (Fla. 2d DCA 2005) (“Florida has adopted the majority view that hospital bylaws become a binding and enforceable contract between a hospital and its medical staff when adopted by the hospital’s governing board.”). The St. Lu-cie County Hospital Governance Law dramatically alters many of the rights and obligations specified in the contract between the appellant’s medical staff and board of trustees, thus constituting a contract “impairment” under article I, section 10.

Although acknowledging that the St. Lucie County Hospital Governance Law effected an impairment through diminution of the medical staffs contract rights, the appellant contends that the law should nevertheless be upheld under the balancing test articulated in Pomponio. But the St. Lucie County Hospital Governance Law is unconstitutional even under this test because the substantial contract impairment imposed by this legislation was not required to protect the public health, ensure the quality of care at Lawnwood, or accomplish some other legitimate public purpose.

The legislation is also unconstitutional because it operates to grant a privilege to a private corporation in violation of article III, section ll(a)(12) of the Florida Constitution in that it diminishes or eliminates many of the hospital’s contractual obligations to its medical staff. Relying upon cases from other jurisdictions involving financial arrangements found to be offensive to similar constitutional prohibitions against the granting of a privilege to a private corporation, the appellant asserts that article III, section ll(a)(12) is “intended to protect the public fisc by preventing financial give-aways.... ” But the plain language of the Florida constitutional provision does not suggest that its application should be limited in this way. Except when the text of a constitution suggests that a technical meaning is intended, words used in the constitution should be given their usual and ordinary meaning because such is the meaning most likely intended by the people who adopted the constitution. See, e.g., Advisory Opinion to Governor—1996 Amendment 5 (Everglades), 706 So.2d 278 (Fla.1997): In general, a dictionary may provide the popular and common-sense meaning of terms presented to the voters. Id. With respect to the term “privilege,” the dictionary definition is not limited in application to financial arrangements. Instead, the term is defined in Webster’s Ninth New Collegiate Dictionary 936 (1989) as a “law for or against a private person,” or “a right or immunity granted as a peculiar benefit, advantage, or favor,” and it is defined in Black’s Law Dictionary 1284 (8th ed.2004) as “[a] special legal right, exemption, or immunity granted to a person or class of persons; an exception to a duty.”

Although the St. Lucie County Hospital Governance Law applies to all hospitals located in St. Lucie County, the record demonstrates, and the parties acknowledge, that there are only two hospitals in St. Lucie County and both are controlled by the same private corporation. Thus, a private corporation is specially benefitted by this law which provides a means for the private corporation to avoid its pre-exist-ing contractual obligations. The law therefore unconstitutionally grants a substantial privilege to this private corporation.

The summary final judgment is affirmed.

WEBSTER, J., concurs; BENTON, J., specially concurs with opinion.

BENTON, J.,

concurring specially.

I join the judgment of the court, and agree that the challenged statute violates article III, section ll(a)(12) of the Florida Constitution.


author: THOMPSON, J.

text:
    STATE of Florida, Appellant, v. E.D.R., a Child, Appellee.
    No. 5D06-2559.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellant.
    James S. Purdy, Public Defender, and Marvin F. Clegg, Assistant Public Defender, Daytona Beach, for Appellee.
   THOMPSON, J.

The State appeals an order suppressing all physical and testimonial evidence seized from E.D.R. by the Orlando Police Department. E.D.R. contended that the officers trespassed on private property and seized evidence without a warrant and absent any recognized exceptions to Fourth Amendment requirements against unreasonable searches and seizures. The undisputed facts show that E.D.R. was asleep, sitting on a porch open to the public, with cocaine in his lap. The State argues the trial court erred because E.D.R. had no expectation of privacy. We agree.

The officers observed E.D.R. with cocaine in his lap and arrested him for possession of cocaine. E.D.R. alleged in his motion to suppress that he was asleep on the porch when the police entered the porch area without a founded suspicion that a crime had been, was being, or was about to be committed. Further, the seizure was not pursuant to section 901.151, Florida Statutes (2005), Florida’s Stop and Frisk Law.

During the suppression hearing, E.D.R. testified he was visiting his aunt and had spent the night when the police arrested him. Orlando Police Officer Bridges testified that he and Officer Javier were on neighborhood team patrol in the Parra-more neighborhood where he had made numerous drug arrests. As he drove down Polk Street around 7:00 a.m., they observed several males asleep on a porch. The officer walked up the walkway and, before he reached the front porch, observed what appeared to be crack cocaine laying in E.D.R.’s lap. He stepped up to the porch and collected the evidence from E.D.R.’s lap while he slept. E.D.R. was then awakened and arrested.

Officer Bridges testified he stopped because he thought it unusual that young men would be sleeping on the porch in a high drug area that early in the morning. The porch was not enclosed, and the drugs were in plain view. The house faced the street and the elevated porch had no screen, railing, or door; it was open and could be viewed from a car on the street. Though nothing suspicious was happening on the porch; it was just odd that young men were sleeping on the porch at 7:00 a.m. He did not recall seeing any no trespass signs, and no one invited him onto the porch. There was no fence around the property.

At the hearing, the trial court stated that the officers trespassed on private property without a legitimate police purpose. It therefore granted the motion, suppressed the evidence, and dismissed the case.

The State argues that E.D.R. had no reasonable expectation of privacy. The officers’ view of the contraband on an unenclosed, unscreened porch gave them probable cause to seize the evidence and arrest E.D.R. The issue is whether E.D.R. had an expectation of privacy on the front porch. We think not.

The Fourth Amendment protects areas where a person has a “constitutionally protected reasonable expectation of privacy.” Katz v. United States, 389 U.S. 347, 360, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). It does not, however, protect areas of the home that are “open and exposed to public view.” State v. Duhart, 810 So.2d 972, 973 (Fla. 4th DCA 2002). “[0]ne does not harbor an expectation of privacy on a front porch where salesmen or visitors may appear at any time.” State v. Morsman, 394 So.2d 408 (Fla.1981) (citing State v. Detlefson, 335 So.2d 371 (Fla. 1st DCA 1976)). In Detlefson, the court upheld the validity of a warrant obtained to seize marijuana plants placed on a front porch. Without considering the undemonstrated reliability of the informant, the court held that the tip provided the officer with only a suspicion that, coupled with the officer’s observations, justified his crossing the yard to look closer. The court declared that the defendant did not have a reasonable expectation of privacy in the front porch of his home where, presumably, delivery men and others were free to observe the plants thereon. 335 So.2d at 372. See also Davis v. State, 763 So.2d 519, 520 (Fla. 5th DCA 2000) (holding there is no expectation of privacy on a porch); Koehler v. State, 444 So.2d 1032, 1033 (Fla. 1st DCA 1984) (accord).

The trial court erred in suppressing the evidence in this case. The porch was not a constitutionally protected area. The unenclosed porch was in the front of the house, not obscured from public view, E.D.R. was sleeping in a chair on the front edge of the porch, and any delivery person or passerby could have walked onto the porch and left a package or knocked on the door without a violation of the resident’s reasonable expectation of privacy. In doing so, the police officers, like a delivery person, would have observed the crack cocaine in plain view in E.D.R.’s lap. The officers had probable cause to arrest him and seize the evidence. We reverse the trial court’s order granting E.D.R.’s motion to suppress and remand for further proceedings.

REVERSED and REMANDED.

GRIFFIN and MONACO, JJ., concur.

      . § 893.13(6)(a), Fla. Stat. (2005).


author: MONACO, J.

text:
    CHARLES BOYD CONSTRUCTION INC., Appellant, v. VACATION BEACH, INC., Appellee.
    No. 5D06-2168.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.

      Christopher J. Weiss, J. Keith Ramsey, and Michael R. Candes, of Holland <& Knight LLP, Orlando, for Appellant.
    Michael R. Riemenschneider, and William H. Cantwell, II, of O’Brien, Riemen-schneider, Wattwood & Cantwell, P.A., Melbourne, for Appellee.
   MONACO, J.

This is the second time this cause has appeared before this court. See Vacation Beach, Inc. v. Charles Boyd Constr. Inc., 906 So.2d 374 (Fla. 5th DCA 2005). Our revisit is generated by the recent opinion of the United States Supreme Court in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), which reversed the Florida Supreme Courts decision in Cardegna v. Buckeye Check Cashing, Inc., 894 So.2d 860 (Fla.2005). As we relied on the Florida Supreme Court’s opinion in Cardegna as the basis for our earlier decision, we are now urged to revisit the position we took there.

By way of brief background, the Florida Supreme Court held in its review of Car-degna that it is the trial court’s job to determine in the first instance whether a contract containing an arbitration provision is illegal. The United States Supreme Court, however, held oppositely that the arbitrator must first determine whether a contract at issue is illegal as part of the arbitration process. A few of the facts of the present case may shed some light on the problem we must now address.

Vacation Beach, the appellee, contracted with Charles Boyd Construction, Inc., the appellant, to build a condominium project. The contract listed Boyd Construction as the general contractor, and contained a provision requiring claims arising out of or related to the contract to be arbitrated pursuant to the American Arbitration Association after first being submitted to mediation.

While arranging for the repair of hurricane damage to the unfinished project, Vacation Beach discovered that the building permit for the structure had been obtained not by Boyd Construction, the corporation with which it had contracted, but by an entity known as Charles Boyd Homes, Inc., a corporation that had been dissolved earlier and never reinstated. Vacation Beach had alleged that although Charles Boyd, an individual who was the principal of Boyd Construction, had been the qualifying agent for Charles Boyd Homes, Boyd Construction never had either a primary or secondary qualifying agent, as required by section 489.119(2), Florida Statutes.

Disputes arose between the parties concerning the construction of the project that culminated in Boyd Construction recording a claim of lien against the property owned by Vacation Beach, and filing a demand for arbitration. Vacation Beach, in response, filed an action for declaratory relief seeking a declaration concerning the legality , of the construction contract in view of the lack of a qualifying agent for Boyd Construction. According to Vacation Beach, Boyd Construction was engaged in unlicensed contracting and any construction contract entered into by that entity was illegal. That is to say, because Boyd Construction lacked authority to make the contractual commitment, no contract ever came into being. After a non-evidentiary hearing, the trial court granted Boyd Construction’s motion to dismiss, and without discussing its rationale, compelled the parties to arbitrate. Vacation Beach appealed.

We reversed based largely on the Florida Supreme Court’s decision in Cardegna. This court noted that section 489.115, Florida Statutes, requires any person engaged in the contracting business to be first certified or registered in the proper classification. At the time of the contract in the present case, section 489.119(2), Florida Statutes, which addresses the necessity for obtaining a certificate of authority to engage in contracting work, stated specifically that:

If the applicant proposes to engage in contracting as a business organization, including any partnership, corporation, business trust or other legal entity, or in any name other than the applicant’s legal name or a fictitious name where the applicant is doing business as a sole proprietorship, the business organization must apply for a certificate of authority through a qualifying agent and under the fictitious name, if any.

Thus, a qualifying agent, according to the statute, had to be certified under Part 1 of Chapter 489 in order for a business organization to be issued a certificate of authority. See.§ 489.119(3)(a), Fla. Stat. (2002).

Finally, we noted that section 489.128, Florida Statutes (2002), provided in part:

(1) As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.
(a) ... [A] business organization is unlicensed if the business organization does not have a primary or secondary qualifying agent in accordance with this part concerning the scope of the work to be performed under the contract.

Vacation Beach argued that while Boyd Construction represented that it was properly licensed as a general contracting company in Florida, its representation was false because it had no qualifying or secondary agent, and no certificate of authority. Instead, the building permit was obtained by Charles Boyd Homes, a dissolved corporation with no current certification, even. though Vacation Beach had no contractual relationship with that organization.

Our opinion indicated that contracts transgressing public policy, including contracts sought to be enforced by an unlicensed contractor in violation of the above named statutes, were considered to be illegal and would not generally be enforced by the courts. We followed the Florida Supreme Court’s holding in Cardegna, which had approved previous decisions of this court to the effect that a claim by a party asserting that a contract is illegal is first required to be presented to the trial court for disposition before arbitration of other disputes under the contract could proceed. That is to say, if the threshold challenge to the contract is based on the contract’s illegality or violation of public policy, it must first be resolved by the trial court. Only if the contract is found to be legal and enforceable may arbitration then be required. Ultimately, we reversed the trial court’s order compelling arbitration and remanded with directions that the trial court address the issue of the illegality of the contract.

After remand the trial court entered an order denying Boyd Construction’s motion to dismiss/motion to compel arbitration and granted Vacation Beach’s motion to stay arbitration. For reasons not entirely clear, the trial court’s ruling was put into a letter, but never reduced to a written order. Later, Boyd Construction submitted notices of supplemental authority to the trial court and requested that the court take the recent opinion of the United States Supreme Court in Cardegna into consideration. On its own motion, the trial court held a hearing to determine what effect, if any, the Cardegna decision had on this court’s mandate. The trial court found as follows:

As to the supplemental authority provided by Charles Boyd Construction, Inc., the argument advanced by defendant that the recent ruling in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), has an effect on the Fifth District Court of Appeal’s mandate is not one that the trial court can accede to because the Fifth District Court of Appeal’s ruling that this court must determine the enforceability of the contract is law of the case. See Brunner Enter. v. Dep’t of Revenue, 452 So.2d 550 (Fla.1984) (recognizing that a lower court cannot change the law of the case as decided by the highest court hearing a case).

The trial court pointed out that the subject contract was unenforceable because of the public policy requiring contractors to be licensed. It then resolved the threshold issue of the illegality of the contract by making a factual determination that Boyd Construction was not a licensed contractor on the effective date of the contract. The court found that because the contract executed by the parties was illegal, the arbitration provision was not enforceable. Vacation Beach’s motion to stay arbitration was granted and Boyd Construction’s motion to dismiss and motion to compel arbitration was denied. Charles Boyd Construction appeals. This court has jurisdiction pursuant to rule 9.130(a)(3)(C)(iv), Florida Rules of Appellate Procedure (order determining entitlement of a party to arbitration).

The United States Supreme Court in Cardegna held broadly that under the Federal Arbitration Act: (1) as a matter of substantive federal arbitration law, an arbitration provision is severable from the remainder of the contract; (2) unless there is a challenge to the arbitration clause itself, the issue of a contract’s validity is considered by the arbitrator in the first instance; and critically for our purposes (3) this arbitration law applies in state as well as federal courts. The Court then noted that challenges to the validity of arbitration agreements upon grounds as exist at law or in equity for the revocation of any contract can be divided into two types. The first type challenges specifically the validity of the agreement to arbitrate, while the other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract provisions of the contract renders the whole contract invalid. See also Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 87 S.Ct. 1801, 18 L.Ed.2d 1270 (1967).

The United States Supreme Court arrived at this position by examining in detail section 4 of the Federal Arbitration Act, 9 U.S.C. §§ 1-16. It interpreted the statute to require that unless a challenge is made specifically to the arbitration clause, the issue of a contract’s validity must in the first instance be considered by the arbitrator, rather than the trial court. Section 4 provides in particular that “upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement.” The Court pointedly held that “the agreement for arbitration” meant the specific arbitration agreement within the contract. It concluded its opinion by saying that:

We reaffirm today that, regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.

Cardegna, 546 U.S. at -, 126 S.Ct. at 1210. See also Southland Corp. v. Keating, 465 U.S. 1, 104 S.Ct. 852, 79 L.Ed.2d 1 (1984).

Vacation Beach correctly points out that our earlier resolution of this case was based on the Florida Arbitration Code (“FAC”), Chapter 682. There is, in fact, nothing to suggest that the instant contract was subject to the Federal Arbitration Act, as was the case in Cardegna. That distinction, however, does not make a difference.

Chapter 682, Florida Statutes (2006), is the Florida Arbitration Code. The provision within the Florida Arbitration Code that corresponds with section 4 of the Federal Arbitration Act is section 682.03(1), which reads:

A party to an agreement or provision for arbitration subject to this law claiming the neglect or refusal of another party thereto to comply therewith may make application to the court for an order directing the parties to proceed with arbitration in accordance with the terms thereof. If the court is satisfied that no substantial issue exists as to the making of the agreement or provision, it shall grant the application. • If the court shall find that a substantial issue is raised as to the making of the agreement or provision, it shall summarily hear, and determine the issue and, according to its determination, shall grant or deny the application.

(Emphasis added).

The comparability of section 4 of the Federal Arbitration Act and section 682.03(1), Florida Statutes, has- been addressed by the appellate courts of this state on a number of occasions. Both the First and the Second District Courts have indicated that the provisions are “virtually identical.” See Rowe Enters., LLC v. Int’l Sys. & Elec. Corp., 932 So.2d 537, 539 (Fla. 1st DCA 2006); Merrill Lynch Pierce Fenner & Smith, Inc. v. Melamed, 425 So.2d 127, 128 n. 4 (Fla. 4th DCA 1982). In addition, the Third District Court in Post Tensioned Engineering Corp. v. Fairways Plaza Assocs., 412 So.2d 871 (Fla. 3d DCA 1982), held that the operative language of section 682.03(1) refers to an agreement or provision to arbitrate, rather than to the contract in its entirety. It held, as well, that the Federal arbitration statute is substantially similar to the Florida statute, and that under either the Florida or Federal view, only an attack on the making of the arbitration provision of the contract raises an issue for the court to decide. As the key provisions of the Federal and Florida legislation are comparable, then a judicial determination under the Federal provision has application by logic to Florida’s. Indeed, that is precisely what the United States Supreme Court has told us.

In view of the reversal of the Florida Supreme Court’s decision in Cardegna by the United States Supreme Court, we are compelled now to reverse the trial court’s Order Denying Defendant’s Motion To Dismiss/Motion To Compel Arbitration And Granting Plaintiffs Motion To Stay Arbitration. In particular we reverse the finding that the contract between Vacation Beach and Boyd Construction “is illegal and the arbitration provision therein is not enforceable.” That issue must in the first instance be decided by the arbitrator, not the court. We acknowledge, of course, that in entering the order now under review the trial court was simply obeying our mandate. We likewise reverse the trial court’s stay of arbitration and the denial of Boyd Construction’s motion to dismiss and compel arbitration, and direct that the trial court order this matter to arbitration.

REVERSED and REMANDED.

GRIFFIN and THOMPSON, JJ„ concur.


author: CANADY, Judge.

text:
    Jessie SANDERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D06-3534.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.
    Jessie Sanders, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Chandra Waite Dasrat, Assistant Attorney General, Tampa, for Respondent.
   CANADY, Judge.

Jessie Sanders, in his petition filed pursuant to Florida Rule of Appellate Procedure 9.141(c), raises two grounds alleging ineffective assistance of appellate counsel. We grant the petition as it relates to the first ground and deny, without discussion, the second ground. In the first ground of the petition, Sanders contends that appellate counsel was ineffective in failing to argue that the trial court fundamentally erred when it instructed the jury on an uncharged alternative theory of the offense of aggravated battery of a law enforcement officer. Sanders contends that the jury instruction was fundamentally erroneous because the verdict was a general one, which made it impossible to determine whether Sanders was convicted under the uncharged theory of the offense or the charged theory. We agree with Sanders’ contention, and we reverse Sanders’ conviction, vacate his sentence, and direct, that he be retried.

Sanders was convicted, after jury trial, of aggravated battery on a law enforcement officer. This court affirmed the judgment and sentence. Sanders v. State, 922 So.2d 209 (Fla. 2d DCA 2006) (table decision). The information alleged that Sanders

by use of a deadly weapon, to-wit: a cane, did intentionally or knowingly cause bodily harm to Deputy James Jones, a law enforcement officer of Pi-nellas County Sheriffs Office, while the said Deputy James Jones was engaged in the lawful performance of his duties, by striking Deputy James Jones with a cane; the said JESSIE L. SANDERS, JR. knowing Deputy James Jones to be a law enforcement officer....

The jury was instructed as follows:

To prove the crime of aggravated battery on a law enforcement officer, the State must prove the following five elements beyond a reasonable doubt.
Element number one, Jessie Sanders intentionally touched or struck Deputy James Jones against Jones’ will or intentionally caused bodily harm to Deputy Jones.
Element two, Jessie Sanders in committing the battery, intentionally or knowingly caused either great bodily harm to Jones, permanent disability to Jones, permanent disfigurement to Jones, or used a deadly weapon.

Sanders contends that because he was found guilty by general verdict, it was fundamental error to instruct the jury that the second element of aggravated battery on a law enforcement officer was satisfied if the State proved that in committing the battery, he intentionally or knowingly caused great bodily harm, permanent disability, or permanent disfigurement when the information charged only the “deadly weapon” theory of committing aggravated battery. Sanders is correct in his assertion that the information did not charge great bodily harm, permanent disability, or permanent disfigurement.

This court’s decision in Vega v. State, 900 So.2d 572 (Fla. 2d DCA 2004), disapproved in part by State v. Weaver, 957 So.2d 586 (Fla.2007), was available to appellate counsel at the time of the direct appeal. This court in Vega held that it was fundamental error to instruct the jury on an uncharged theory of the offense of battery on a law enforcement officer where the verdict was a general verdict. Id. at 578. The Vega court stated: “[The] error is fundamental because the jury returned a general verdict of guilt without specifying the basis for the conviction, making it impossible to know whether Vega was convicted of the form of battery with which he was charged rather than the form with which he was not charged.” Id. This court reached a similar result in Dixon v. State, 823 So.2d 792, 794 (Fla. 2d DCA 2001), disapproved in part by Weaver, $57 So.2d 586, wherein we reversed Dixon’s convictions for battery on a law enforcement officer.

In Weaver v. State, 916 So.2d 895, 898 (Fla. 2d DCA 2005), quashed, 957 So.2d 586, this court reversed Weaver’s conviction for battery on a law enforcement officer because the trial court fundamentally erred in instructing the jury on an uncharged alternate theory of the offense where, as in the present case, the verdict was a general one. The Weaver court certified a question asking if the jury instructions constituted fundamental error when no evidence-was presented or argument made on the uncharged alternate theory of the offense. Id.

During our consideration of the present petition, the supreme court issued its opinion and quashed this court’s decision reversing Weaver’s conviction. 957 So.2d at 589. The supreme court also disapproved of Vega and Dixon to the extent that they were inconsistent with the holding of Weaver. Id. In Weaver, the jury was instructed, without objection, on both the “intentionally causing bodily harm” theory of battery and the “intentional touching or striking” theory of battery even though the information charged only intentional touching or striking. Id. at 587. The supreme court held: “Because bodily harm was never at issue in Weaver’s case, and the State never argued or presented evidence of bodily harm, the trial court’s inclusion of the bodily harm element in the jury instructions did not rise to the level of fundamental error.” Id. at 589. The supreme court reasoned that where there was neither evidence of nor argument on the uncharged theory of the offense, it was not impossible to know whether the defendant was convicted of the charged theory of the offense or the uncharged theory. The court was confident in concluding that “in such cases, the jury’s verdict is based not on elements that were never at issue, but on the elements on which the State actually presented evidence, on which the State based its arguments, and which the defendant contested at trial.” Id. The supreme court left intact, however, the rule enunciated in Vega and Dixon that it is fundamental error to instruct the jury on an uncharged alternate theory of a particular offense when it is impossible to ascertain whether the jury convicted the defendant of the uncharged theory rather than the charged theory.

In the present ease, Sanders was charged with the “deadly weapon” theory of aggravated battery but the jury was also instructed on the uncharged “great bodily harm, permanent disability, or permanent disfigurement” theory of aggravated battery. The trial testimony established that Sanders struck the victim with his walking stick. The victim bled profusely and was taken to the hospital for his wound to be stitched. In closing argument, the prosecutor advised the jury that a misdemeanor battery occurs in cases in which there is “no great bodily harm[,] like the stitches.” Defense counsel argued to the jury that there was no evidence of great bodily injury. Thus, the State did present evidence from which the jury might have concluded that the uncharged alternate theory of the offense was proven, and there was argument on the uncharged alternate theory. Unlike the factual scenario outlined in Weaver, here it is impossible to know whether the jury convicted Sanders of the uncharged alternate theory of the offense, and the erroneous instruction constituted fundamental error.

We therefore conclude that appellate counsel was ineffective in failing to argue that the jury instruction on the second element of aggravated battery on a law enforcement officer was fundamental error. Because a new appeal would be redundant in this case, we reverse the conviction, vacate the sentence, and direct that Sanders be retried. See Hernandez v. State, 884 So.2d 281, 282 (Fla. 2d DCA 2004) (citing Johnson v. Wainwright, 498 So.2d 938, 939 (Fla.1986)).

Petition granted.

KELLY and WALLACE, JJ., Concur.