author: WALLACE, Judge.

text:
    Karl FREUDENBERGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-5651.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Karl Freudenberger was convicted and sentenced for three offenses that he committed against a Lutheran church: arson in the second degree, criminal mischief to a place of worship, and burglary of a structure. Mr. Freudenberger’s sentences on the arson and burglary charges were enhanced under section 775.085, Florida Statutes (2003), commonly referred to as Florida’s “Hate Crimes Statute.” We affirm the judgments. However, because the jury did not make specific findings of fact to support the enhanced sentences, we reverse the sentences on the arson and burglary convictions and remand for re-sentencing.

I. THE PROCEEDINGS IN THE CIRCUIT COURT

The State charged Mr. Freudenberger with committing three offenses against the Apostles Lutheran Church located in Brandon: arson in the second degree, section 806.01(2), a second-degree felony (count one); criminal mischief to a place of worship resulting in damage greater than $200, section 806.13(2), a third-degree felony (count two); and burglary of a structure, section 810.02(4)(a), a third-degree felony (count three). The State sought to enhance the penalty for the arson and burglary offenses under section 775.085. The trial court gave the jury the 1997 version of the standard instruction concerning the requested enhancement. See Fla. Std. Jury Instr. (Crim.) 3.3(f). The jury returned guilty verdicts on the underlying offenses. The trial court adjudged Mr. Freudenberger to be guilty and imposed concurrent sentences as follows:

Count one: arson in the second degree, thirty years.
Count two: criminal mischief to a place of worship resulting in damage greater than $200, five years.
Count three: burglary of a structure, fifteen years.

The length of the sentences for the arson and burglary offenses reflected the reclassification of these felonies to the felony of the next higher degree in accordance with section 775.085.

II. THE ISSUES

On appeal, Mr. Freudenberger raises two issues. First, he argues that the trial court erred in denying his request for a jury instruction on the insanity defense. This argument is without merit, and we affirm Mr. Freudenberger’s convictions on the underlying offenses without further discussion.

Second, Mr. Freudenberger argues that the trial court erred in enhancing the degrees of the offenses on the arson and burglary charges under section 775.085, the Hate Crimes Statute. The statute provides, in pertinent part:

(l)(a) The penalty for any felony ... shall be reclassified as provided in this subsection if the commission of such felony ... evidences prejudice based on the ... religion ... of the victim:
3. A felony of the third degree is reclassified to a felony of the second degree.
4. A felony of the second degree is reclassified to a felony of the first degree.
(3) It is an essential element of this section that the record reflect that the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated in this section.

Mr. Freudenberger advances two grounds in support of his challenge to the enhancement in the degrees of the arson and burglary offenses under this statute: (1) the information failed to allege a factual predicate for the enhancement and (2) the jury’s verdict did not contain sufficient findings of fact to support the enhancement. Although we are not persuaded by the first ground, we agree with the second. We will discuss each of Mr. Freudenber-ger’s arguments on this point separately.

III. DISCUSSION

A. The Adequacy of the Information

Mr. Freudenberger concedes that the information supports a judgment of conviction on all counts. Instead, he argues that the information does not “properly allege the enhancement” and thus does not adequately put him on notice of the State’s intent to pursue an enhanced sentence under section 775.085. The State responds that “[t]he information ... does, in fact, precisely track the language of the statute.” (Emphasis added.) Based on this claim of linguistic precision, the State concludes that Mr. Freudenberger “was properly notified of the charges.” Thus the initial question we address is whether the statutory language and the language of the charging document are identical in their form or in their effect.

We begin by comparing the pertinent statutory language with the enhancement allegations contained in the information:

[Statute: ] The penalty for any felony ... shall be reclassified as provided in this subsection if the commission of such felony ... evidences prejudice based on the ... religion ... of the victim.

§ 775.085(l)(a) (emphasis added).

[Information: ] ... and during the commission of this [felony] did evidence prejudice based on the religion of APOSTLE’S [sic] LUTHERAN CHURCH.

(Emphasis added.) We also note that the information included a reference to section 775.085 by the statute number.

The State’s claim of a precise correspondence between the statutory language and the language of the information will not withstand examination. We perceive a significant distinction between the use of the conjunction “if’ in the statute and the employment of the preposition “during” in the information. We are guided in these grammatical investigations by the teaching of our supreme court in State v. Stalder, 630 So.2d 1072 (Fla.1994). In Stalder, the court adopted a limiting construction of section 775.085. In accordance with this limiting construction, the application of the statute is restricted to circumstances where the commission of the crime itself evidences prejudice; the mere exhibition of prejudice during the commission of the crime is insufficient to warrant enhancement of the offense. Id. at 1076-77. Put differently, the statute applies only to bias-motivated crime, i.e., a crime wherein the perpetrator selects the victim because of one or more of the victim’s attributes delineated in the statute. Id. In its opinion, the court contrasted bias-motivated crime with a crime during which bias is merely exhibited. Id. The former is subject to the enhanced penalty feature of the statute while the latter is mere expression, which is protected speech. Id. Hence the State’s use of the word “during” in the information arguably describes conduct that is not subject to reclassification under the statute based on the limiting construction adopted in Stalder.

Expanding on this theme, Mr. Freuden-berger argues that the information does not allege conduct that would invoke the enhancement provisions of section 775.085 because the language used failed to allege that he selected the church as his victim because of its Lutheran faith. In support of his argument, Mr. Freudenberger relies on several decisions that have addressed discrepancies between the allegation of a sentencing enhancement for the use of a firearm in the charging document and the imposition of a greater enhancement at the sentencing of the defendant for the discharge of a firearm. These cases have arisen in the context of section 775.087(2)(a), the “10-20-Life Statute.” In one of these cases, we said that “[t]he grounds for enhancement of a sentence must be charged in the information” and that “neither the jury’s finding that the firearm was discharged nor the inclusion of the statute number in the information cures the defect in the information.” Whitehead v. State, 884 So.2d 139, 140 (Fla. 2d DCA 2004) (concluding that “[a] firearm may be used without being discharged; therefore, an allegation of ‘use’ will not sustain an enhancement for discharging a firearm under 775.087(2)(a)(2)”); see also Adams v. State, 916 So.2d 36, 37 (Fla. 2d DCA 2005) (following Whitehead); Davis v. State, 884 So.2d 1058, 1060 (Fla. 2d DCA 2004) (noting that “the minimum terms mandated ... cannot be legally imposed unless the statutory elements are precisely charged in the information”) (emphasis added); Rogers v. State, 875 So.2d 769 (Fla. 2d DCA 2004) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged use of a firearm); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003) (reversing life sentence imposed for discharge of a firearm with the infliction of great bodily harm under section 775.087(2)(a)(3) where the information alleged that the defendant carried a firearm). Based on these decisions, Mr. Freudenberger contends that the grounds for a bias-motivated penalty enhancement were not alleged in the information. He further contends that this defect cannot be cured by the inclusion of the statute number in the information, by the giving of proper instructions to the jury, or by a sufficient finding of fact in the jury’s verdict.

While the cases on which Mr. Freuden-berger relies are compelling, they are also distinguishable. In each of the cases cited, the State’s information alleged the use of a firearm, but the trial court imposed a sentence enhancement appropriate for the discharge of a firearm — a specific and important difference in the application of the minimum terms mandated by section 775.087(2)(a). The use of a firearm requires a ten-year minimum sentence under section 775.087(2)(a)(l), while the discharge of a firearm requires a twenty-year minimum under section 775.087(2)(a)(2). Furthermore, if death or the infliction of great bodily harm results from the discharge of a firearm, then section 775.087(2)(a)(3) requires a twenty-five-year minimum sentence. The requirement in Rogers, Adams, Whitehead, Davis, Jackson, and similar decisions for precision in the allegations of fact necessary to support a penalty enhancement stems from the complexity of section 775.087 and the variety of sentencing outcomes possible under its multiple provisions. See Inmon v. State, 932 So.2d 518 (Fla. 4th DCA 2006) (reviewing the provisions of section 775.087 in detail and explaining the necessity for the State to plead specifically the basis for a requested enhancement under that statute). In the “10-20-Life” cases relied on by Mr. Freudenberger, the State charged each defendant with the use of a firearm, but the trial court sentenced each defendant for the discharge of a firearm or for the discharge of a firearm resulting in great bodily harm. The State’s failure to allege that the defendants had discharged a firearm required that the enhanced sentences for either the discharge of a firearm or the discharge of a firearm causing great bodily harm be reversed. In those cases, the imprecision of the language in the charging documents had the effect of denying the defendants their right to notice and an opportunity to prepare for trial on the charges against them.

In Mr. Freudenberger’s case, however, the potential for confusion and prejudice caused by imprecise language in the charging document is substantially less than in the cases upon which he relies. The penalty enhancer that the State sought to apply to Mr. Freudenberger is not subject to increase or decrease in the degree of its severity. Unlike section 775.087, section 775.085 does not have multiple parts and a complex set of penalty provisions. Furthermore, the supreme court’s decision in Stalder leaves no doubt that a bias-motivated crime — where the perpetrator specifically selects the victim based on one or more of the victim’s attributes delineated in the statute — is the subject of the “Evidencing prejudice” conduct referred to in the statute’s title. Therefore, Mr. Freu-denberger had no reason to be confused or misled about the allegations in the information and the intended sentence enhancement.

For these reasons, we conclude that the enhanced sentences imposed on Mr. Freu-denberger for the arson and burglary convictions are not illegal based on the inadequacy of the information to allege the intended enhancement. We turn now to a consideration of Mr. Freudenberger’s argument based on the sufficiency of the jury’s verdicts to sustain the sentence enhancements.

B. The Sufficiency of the Jury’s Verdicts

We begin with a review of the choices presented to the jury in the verdict form for count one and count three:

Count One:

Initially, we note that a literal reading of the jury’s verdicts would suggest that Mr. Freudenberger was found guilty of “Arson Evidencing Prejudice” and “Burglary of a Structure Evidencing Prejudice.” There are no such crimes, and arson and burglary of a structure are not lesser included offenses of them. As this court has previously noted, the term “hate crime” is a misnomer. See Woolfork v. State, 623 So.2d 823, 823 (Fla. 2d DCA 1993). Section 775.085 does not create a new category of crimes consisting of existing offenses that become elevated in degree when the element of motivation based on bias is present. Instead, section 775.085 is an enhancement statute providing for the reclassification of offenses under certain circumstances. Id. On its face, the verdict form does not reflect this distinction.

However, these technical defects in the verdict form do not determine the result in this ease. The important question is whether the verdicts on the arson and burglary offenses contain sufficient findings of fact to support the enhancements. “Before the trial court may impose the minimum mandatory sentence, the jury must make a specific finding of the fact that dictates the minimum mandatory sentence.” Muldrow v. State, 842 So.2d 240, 241 (Fla. 2d DCA 2003). Similarly, “[ojther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000); see Thompson v. State, 862 So.2d 955, 958 (Fla. 2d DCA 2004); Alusma v. State, 939 So.2d 1081 (Fla. 4th DCA 2006). In this case, the jury did not make the necessary specific findings to support the enhancements. The jury’s verdicts do not include a finding that Mr. Freudenberger selected the church as his victim because of a bias against its religion. On the contrary, the most generous reading of the jury’s verdicts suggests that the jury found that Mr. Freudenberger merely exhibited prejudice based on religion during the commission of the arson and burglary offenses. Such a finding is insufficient under Stalder to warrant the enhancement of the penalty for the arson and burglary offenses in accordance with section 775.085.

The State argues that the “as charged” language in the verdicts cures any deficiency because the information included a reference to section 775.085 by the statute number. The State also contends that the jury instructions cured any deficiency in the verdicts because the jury instructions specifically required that for the penalty enhancement to apply, the jury must find that Mr. Freudenberger knew of the victim’s religion and that he selected the victim because of that knowledge. The State asks us to “consider the charging document, instructions, and verdict form together.”

We do not agree that these three documents — taken together — establish that the jury found that the arson and burglary offenses were motivated by bias. The State attempts to distinguish Woolfork, but we find it directly on point. In Woolfork, the information alleged that “in the commission of such felony, the [defendant] evidenced prejudiced [sic] based upon the race of the victim,” and the jury’s verdict found the defendant “guilty of obstructing or opposing an officer with violence and evidencing prejudice based upon the race of the victim, as charged.” 623 So.2d at 823-24. Defense counsel in Woolfork successfully requested a jury instruction that tracked the exact language of the statute. Nevertheless, the Woolfork court concluded that “[a]dding the words ‘as charged’ [to the jury verdict form did] not help the situation because the charge was also incorrectly worded.” Id. at 824. The deficiency in the jury’s verdict in Woolfork prevented the application of the section 775.085 enhancement. Id. We also note that the Fourth District has found a similar jury verdict to be insufficient to support an enhancement under section 775.085. See Abbott v. State, 705 So.2d 923, 925 (Fla. 4th DCA 1997).

The language of the information and of the jury verdict in Woolfork is very similar to the language used in the information and in the jury verdicts under review in this case. As in Woolfork, we hold that the deficiency in the jury’s verdicts prevents the application of the enhancement under section 775.085. Accordingly, we reverse Mr. Freudenberger’s sentences on the arson and burglary offenses, and we remand this case to the trial court for resentencing on those offenses without the application of the section 775.085 enhancement. We affirm the sentence on the criminal mischief conviction.

Judgments affirmed; sentences affirmed in part and reversed in part; and remanded.

WHATLEY and SILBERMAN, JJ., Concur.

      . The standard jury instruction for "aggravation of a felony by evidencing prejudice," § 775.085, Fla. Stat., was substantially revised and rewritten in 2000. See In re Standard Jury Instructions—Criminal Cases (99-1), 765 So.2d 692, 705-06 (Fla.2000). For reasons unknown, the revised version of this jury instruction does not appear in the published versions of the Florida Standard Jury Instructions in Criminal Cases that this court has consulted. Therefore, we believe that it is likely that both the parties and the trial court were unaware of the new version of section 3.3(f).

      . We reject the State’s unsupported assertion that Mr. Freudenberger failed to preserve this ground for appellate review because he failed to attack the adequacy of the information before trial. Mr. Freudenberger properly challenged the enhanced sentences for the arson and burglary offenses with a motion filed under Florida Rule of Criminal Procedure 3.800(b)(2). See Whitehead v. State, 884 So.2d 139 (Fla. 2d DCA 2004); Jackson v. State, 852 So.2d 941 (Fla. 4th DCA 2003).

      . The 1997 version of the jury instruction for the section 775.085 enhancement directs the members of the jury that if they find certain facts then they are to "find the defendant guilty of (crime charged) evidencing prejudice.” In re Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d 84, 96-97 (Fla. 1997). We suspect that the trial court adopted this language from the instruction in preparing the verdict forms which used the terms "Arson Evidencing Prejudice” and "Burglary of a Structure Evidencing Prejudice.” The revised version of the instruction approved in 2000 does not use the formulation "(crime charged) evidencing prejudice.” In re Standard Jury Instructions — Criminal Cases (99-1), 765 So.2d at 705-06.

      . A standard jury instruction for section 775.085 was not adopted until July 1997. See In re Standard Jury Instructions in Criminal Cases (97-1), 697 So.2d at 96-97. This was several years after the trial in Woolfork.

      . In Abbott, the jury's finding was: "The Defendant is Guilty of Aggravated Assault with a Deadly Weapon evidencing racial prejudice, as charged in the Information.” 705 So.2d at 925.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Keith Tyrone COVERDALE, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1558.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.

      James Marion Moorman, Public Defender, and Ray Shaw, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

Keith Coverdale appeals his judgment and sentence for aggravated stalking. We reverse and remand for a new trial.

The State charged Coverdale with aggravated stalking in violation of section 784.048(4), Florida Statutes (2003), allegedly occurring on or between May 2, 2003, and March 25, 2004. The information alleged that Coverdale

did knowingly, willfully, maliciously, and repeatedly follow, harass or cyberstalk Robyn Spencer, after an injunction for protection against repeat violence had been issued pursuant to s. 784.046, or an injunction for protection against domestic violence pursuant to s. 741.30, or after any other court imposed prohibition of conduct toward Robyn Spencer or the property of Robyn Spencer[.]

A jury trial was held in November 2004.

Ms. Spencer, a nurse, was married and working at a homeless shelter when she met Coverdale, who was residing at the shelter. She began a relationship with him, quit her job at the shelter, and ultimately was divorced from her husband of over twenty years. Coverdale moved in with Ms. Spencer, but the relationship became stormy. Ms. Spencer testified that she became frightened of Coverdale and obtained a domestic violence injunction (DVI) against him in March 2003. In May 2003, she had the DVI amended to include a no contact order.

The State presented tapes of phone calls and numerous letters from Coverdale to Ms. Spencer to show that he intended to harass her. Coverdale presented a defense that the letters he wrote were not malicious and were not meant to harass but served a legitimate purpose of trying to rekindle the relationship with Ms. Spencer. Part of the defense theory was that Ms. Spencer obtained the DVI to placate her family and friends, who did not approve of the relationship. Ms. Spencer admitted that she and Coverdale had broken up and then resumed their relationship many times, and she admitted that after she got the DVI and the no contact order she allowed Coverdale to reside with her and she had sexual relations with him.

At issue on appeal are statements Ms. Spencer made during her testimony and statements Detective Maria Carney made during her testimony. Coverdale twice sought a mistrial when Ms. Spencer made nonresponsive statements when she was testifying. In response to a question by the prosecutor about Coverdale, Ms. Spencer stated, “He would not leave us alone. He was incarcerated a little while.” The trial court denied the defense motion for mistrial, reasoning that it was not clear from her statement that the incarceration was for other offenses and “instead of ringing the bell twice” just instructed the jury to “disregard this witness’s last statement in total.”

On cross-examination, Ms. Spencer was asked about her friend Nina’s feelings about Coverdale. Ms. Spencer testified, “She was okay with him until he tried to molest her daughter.” The trial court denied the motion for mistrial and instructed the jury “to ignore the last statement of the witness.”

With respect to the proper standard of review, a harmless error analysis is unnecessary when “the trial court recognized the error, sustained the objection and gave a curative instruction. Instead, the correct appellate standard is whether the trial court abused its discretion in its denial of a mistrial.” Goodwin v. State, 751 So.2d 537, 547 (Fla.1999); see also Anderson v. State, 841 So.2d 390, 403 (Fla.2003) (citing Goodwin). In Goodwin, the improper comment was “bad neighborhood” testimony by an officer regarding drug sales. 751 So.2d at 538. The court determined that the comment was not “so prejudicial as to deny defendant a fair trial.” Id. at 547. In Anderson, the prosecutor made comments in closing about how drug traffickers behave when they are stopped by the police. The court stated that the trial court did not abuse its discretion in denying the motion for mistrial and stated that “[a] mistrial is appropriate only where the error is so prejudicial as to vitiate the entire trial.” 841 So.2d at 403.

In Brooks v. State, 868 So.2d 643 (Fla. 2d DCA 2004), which Coverdale relies upon, the defendant was convicted of aggravated battery with a deadly weapon and had raised self-defense as a defense at trial. This court determined that the trial court abused its discretion in failing to grant a motion for mistrial based on the victim’s nonresponsive testimony that following a prior incident of domestic violence, the defendant was “‘sent back to prison.’ ” Id. at 643. This court in Brooks recognized that “[t]he improper admission of evidence concerning a defendant’s prior criminal history is frequently too prejudicial for the jury to disregard, regardless of any curative instruction given by the trial court. When any curative instruction would be insufficient, the trial court should grant a mistrial.” 868 So.2d at 645 (quoting Henderson v. State, 789 So.2d 1016, 1018 (Fla. 2d DCA 2000) (citation omitted)).

Here, the statement that Cover-dale had been incarcerated was prejudicial but, standing alone, was insufficient to vitiate the entire trial or deprive him of a fair trial. The statement was not clear as to why the incarceration had occurred, and the jury may have believed that it related to the present offense. However, the comment that Coverdale tried to molest Nina’s daughter is far more egregious. Few criminal allegations would be more prejudicial to a defendant than molesting a child. If the jury believed the statement that Coverdale was a child molester, this gratuitous statement would deny him a fair trial on the aggravated stalking charge, and no curative instruction could unring that bell. See Denmark v. State, 927 So.2d 1079, 1081 (Fla. 2d DCA 2006) (recognizing the futility of a curative instruction when asking the jury to disregard prior criminal offenses by the defendant). We conclude that under these circumstances, the trial court abused its discretion in denying the motion for mistrial with respect to the comment that Coverdale tried to molest Nina’s daughter.

With respect to Detective Maria Carney’s testimony, Detective Carney testified that she was dispatched to Ms. Spencer’s residence where she encountered Coverdale and showed him the no contact order. Detective Carney testified that Coverdale told her that he did not care, and she testified that he was irate. Detective Carney told Coverdale that he needed to stay away from Ms. Spencer and stop coming to her residence. The trial court then allowed Detective Carney to testify, over defense objection, that Cover-dale stated to her

that he was going to hunt me down, that he was going to make sure that — basically he was going to hunt me down and make sure that I was going to be miserable, that it would be nice to see my head blown off. He made some reference to me being a Puerto Rican bitch, and that I would look really good with a bullet in my head. It went on and on for 45 minutes.

The State first argued that the statement showed lack of respect and then added that it showed Coverdale’s “state of mind, that it’s stalking in violation of the DVI, repeated contact DVI. She’s stating, you can’t violate this DVI.” The defense argued that the prejudicial effect of the statement outweighed the probative value. The trial court found that the defendant’s state of mind was relevant in this case because the “whole defense theory in this case is not that he’s stalking her, but that he’s in love with her and that she’s in love with him.” The defense reiterated that the court had to weigh the probative value and the prejudicial effect and that the State “wants to paint the picture that he’s threatening everybody, which is a prior bad act.” The court ruled that the statement was relevant and overruled the objection. The defense then made a motion for mistrial which the trial court denied. The court did not make any statements that reflected it had weighed the probative value of the statement against its prejudicial effect.

Our review of the admissibility of Detective Carney’s statement is for an abuse of discretion. See Mims v. State, 872 So.2d 458, 455 (Fla. 2d DCA 2004). The issue here does not deal with similar fact evidence of other crimes under section 90.404(2), Florida Statutes (2004), but with evidence of dissimilar collateral bad acts. Thus, the general rule of relevance in section 90.402 controls. See Jorgenson v. State, 714 So.2d 423, 427 (Fla.1998). However, evidence of other crimes, “even if relevant, should not be admitted if its probative value is substantially outweighed by undue prejudice.” Bryan v. State, 533 So.2d 744, 746 (Fla.1988); see also § 90.403 (“Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.”).

As in Mims, the trial court here failed to balance the danger of unfair prejudice against the probative value of the challenged evidence. The danger of unfair prejudice is great regarding a statement that the defendant would “hunt down” the detective and that it would be nice to see her “head blown off.” We see no probative value in the challenged statement regarding whether Coverdale intended to violate the DVI. Detective Carney’s testimony that she showed Coverdale the no contact order and that Coverdale then stated that he did not care and Detective Carney’s testimony that Coverdale was acting irate do address Coverdale’s state of mind. But, the additional testimony about Coverdale’s threat to hunt down the detective and that she would look good with a bullet in her head or that it would be nice to see her head blown off was unduly prejudicial. Thus, the trial court abused its discretion in allowing the testimony.

A harmless error analysis is applicable to the improper admission of testimony under section 90.403. See Denmark, 927 So.2d at 1082; Mims, 872 So.2d at 456. To establish harmless error, the State must prove that there is “no reasonable possibility that the error contributed to the conviction.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986).

The State presented evidence at trial that would support a conclusion that Cov-erdale was indeed stalking Ms. Spencer. However, Coverdale presented a defense that his letters were not malicious and were not meant to harass but served a legitimate purpose of trying to rekindle the relationship with Ms. Spencer. We note that the prosecutor in closing argument discussed Detective Carney’s encounter with Coverdale. Although the prosecutor did not specifically mention the challenged comments, he did state, “Consider his [Coverdale’s] reaction being told he could no longer have contact with Ms. Spencer.” Thus, the prosecutor reminded the jury of Coverdale’s threats to the detective.

We conclude that the State has not met its burden to show that there is no reasonable possibility that the testimony — that Coverdale would “hunt down” the detective and that it would be nice to see her “head blown off’ or that she would “look good with a bullet in her head” — contributed to Coverdale’s conviction. Thus, we reverse and remand for a new trial based on the admission of Detective Carney’s testimony and Ms. Spencer’s testimony that Coverdale tried to molest Nina’s daughter.

Finally, we note for purposes of remand that the trial court must instruct the jury that an element of aggravated stalking under section 784.084(4) is that the defendant had knowledge of the injunction. See State v. Johnson, 676 So.2d 408, 411 (Fla.1996); Cazeau v. State, 873 So.2d 528, 529 (Fla. 4th DCA 2004).

Reversed and remanded for new trial.

ALTENBERND and WALLACE, JJ„ Concur.

      . At trial, the validity of the no contact amendment was disputed, but that issue was not raised on appeal and we do not address it.


author: ALTENBERND, Judge.

text:
    BAYCARE HEALTH SYSTEM, INC., Appellant, v. AGENCY FOR HEALTH CARE ADMINISTRATION and Health Options, Inc., Appellees.
    Nos. 2D05-1691 to 2D05-1693, 2D05-2586, 2D05-2587, 2D05-2591, 2D05-2593.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.

      H. Jack Klingensmith and Elinor E. Baxter of Walters Levine Klingensmith & Thomison, P.A., Sarasota, for Appellant.
    Garnett W. Chisenhall, Jr., and Brian T. Mulligan, General Counsel’s Office, Tallahassee, for Appellee Agency for Health Care Administration; and John Radey and Donna E. Blanton of Radey Thomas Yon & Clark, P.A., Tallahassee, for Appellee Health Options, Inc.
    Edward J. Pozzuoli and Stephanie Alexander of Tripp Scott, P.A., Fort Lauder-dale, for Amici Curiae Florida Hospital Association, Florida College of Emergency Physicians, Florida Medical Association, and the American College of Emergency Physicians.
    George N. Meros, Jr., and Allen C. Win-sor of Gray Robinson, P.A., Tallahassee, for’ Amicus Curiae Florida Association of Health Plans.
   ALTENBERND, Judge.

In these consolidated appeals, Baycare Health Systems, Inc., a corporation that owns and operates a group of hospitals, appeals eight orders entered by the Agency for Health Care Administration (AHCA) in four separate administrative actions. The orders effectively deny reimbursement of approximately $2 million for medical services that Baycare hospitals provided to patients insured by Health Options, Inc., a health maintenance organization that is a wholly owned subsidiary of Blue Cross/Blue Shield of Florida, Inc. The AHCA’s orders were entered based upon the results of a voluntary dispute resolution process, provided for by section 408.7057, Florida Statutes (2002). Consistent with the requirements of section 408.7057 and the holding of the First District in Health Options, Inc. v. Agency for Health Care Administration, 889 So.2d 849 (Fla. 1st DCA 2004), the orders adopt the recommendation of Maximus Center for Health Dispute Resolution (Maximus CHDR), an “independent third-party claim-dispute-resolution entity.” See § 408.7057(1)(c), (4).

Baycare asks this court to hold section 408.7057 and the AHCA’s rules implementing this dispute resolution process unconstitutional. In the alternative, Baycare asks this court to perform a de novo review of the factual and legal determinations by Maximus CHDR. Because this dispute resolution process was voluntary, and because Baycare instituted the process and was not affirmatively misled about the parameters of the process, we affirm the orders on appeal. We emphasize, however, that the legal conclusions made by undisclosed professionals as part of Maximus CHDR’s standard procedures may have resolved these specific claims as part of a voluntary process, but those informal rulings have no precedential value.

I. THE FACTS

In October 2000, Health Options entered into individual contracts with Baycare hospitals that provided for specific reimbursement rates for patients who were insured by Health Options and treated at Baycare hospitals. On September 30, 2002, Bay-care legally cancelled these contracts. The dispute in this appeal centers around the period between October 1, 2002, and December 31, 2002, during which Baycare hospitals continued to provide services to numerous patients insured by Health Options. The parties disagree about the proper rates of reimbursement for the period when there was no specific contract in force between them.

The patients who were insured by Health Options and sought treatment at Baycare hospitals from October through December 2002 fall into three categories: (1) “continuity of care” patients for whom reimbursement rates are governed by section 641.51(8), Florida Statutes (2002); (2) patients seeking emergency care, for whom reimbursement rates are established by section 641.513(5), Florida Statutes (2002); and (3) all other patients who sought “non-emergency,” “non-continuity of care” treatment, who must be billed a “reasonable rate,” see, e.g., Payne v. Humana Hosp., 661 So.2d 1239, 1241 (Fla. 1st DCA 1995).

Baycare submitted reimbursement claims to Health Options for these patients. Health Options reviewed the bills submitted by Baycare, made its own assessment concerning the proper rate of reimbursement for each charge, and ultimately paid an amount significantly less than the amount billed by Baycare. In large part, the dispute between the parties centered on the reimbursement rates for emergency medical care.

To resolve this dispute, Baycare filed a series of claims with Maximus CHDR, the third-party claim-dispute-resolution organization with which the AHCA has contracted pursuant to section 408.7057 to resolve claims between medical service providers and insurers. The four claims at issue in this appeal total approximately $2 million. Baycare also submitted medical and billing records to support the charges. Maximus CHDR accepted the claims for review and notified Health Options of the claims. Health Options then filed a response on appropriate Maximus CHDR forms.

As presented to Maximus CHDR, the resolution of the large majority of these claims rested on a question of law related to statutory interpretation. The parties agreed that pursuant to section 641.513(5)(a)-(b), Florida Statutes (2002), Baycare was entitled to reimbursement for the emergency care claims in an amount equal to the lesser of (1) the provider’s billed charges or (2) the “usual and customary” charges for such services in the community. They disputed, however, the proper formula for determining the “usual and customary” charges in the community.

Baycare asserted that the amount it billed for the services was commensurate with the “usual and customary” charges for such services in the community. In contrast, Health Options argued that an amount equal to 120% of the Medicare reimbursement rates was commensurate with the “usual and customary” charges. In a nutshell, Health Options asserted that it was well recognized in financial and medical circles that hospital billing fluctuates wildly between private payors, corporate payors, insurers, government payors, and health maintenance organizations, and that “hospitals’ billed charges bear no resemblance to market realities.” Noting that obtaining private billing or payment information from hospitals to determine what they “usually and customarily” charge was difficult based upon confidentiality and business proprietary concerns, Health Options concluded that the “usual and customary payment” a hospital receives was a better indicator of the market forces at work than what hospitals actually bill. Health Options concluded that a formula to pay 120% of Medicare reimbursement rates was appropriate and satisfied the statute’s mandate to pay the “usual and customary” charges for such services.

Baycare thus presented claims to Maxi-mus CHDR that required the private, third-party organization to interpret section 641.513(5)(a)-(b) and to apply that interpretation to a large class of claims. Between March and June 2003, Maximus CHDR reviewed these claims. There is no official record of these proceedings. It appears, however, that the review involved the use of unnamed medical and legal professionals who reviewed the written submissions and documents provided by Bay-care and Health Options. There is at least some indication that Maximus CHDR’s representatives may have engaged in ex parte communications with Health Options to clarify certain factual issues. No formal evidentiary hearing was held.

Ultimately, Maximus CHDR issued letters of recommendation on the claims to the AHCA, accepting Health Options’ legal argument. Maximus CHDR generally concluded “that reimbursement of 120% of the Medicare fee schedule would fall within an appropriate range to be considered ‘reasonable’ ” and thus the equivalent of the “usual and customary” rates of other hospitals, as required by section 641.513(5)(a)-(b). As such, Maximus CHDR recommended that the vast majority of Baycare’s claims for reimbursement should be denied.

On June 16, 2003, apparently after it received Maximus CHDR’s recommendations on the first three claims, Baycare sent a letter to Maximus CHDR asking that each of its claims be withdrawn. Based upon this letter, Maximus CHDR issued new letters of recommendation indicating that based upon Baycare’s request to withdraw its claims, Maximus CHDR was now recommending that its previous recommendations be vacated and all of the claims be dismissed.

The AHCA received the various recommendations from Maximus CHDR. Both Baycare and Health Options filed legal arguments regarding whether Maximus CHDR or the AHCA could permit Baycare to withdraw its claims with Maximus CHDR once Baycare learned of the recommendation against it. In early August 2003, the AHCA issued final orders adopting the recommendations by Maximus CHDR to permit Baycare to withdraw its claims.

Health Options filed a notice of appeal in the First District Court of Appeal. The First District reversed the four orders related to the claims now at issue in this appeal. As to these orders, the First District concluded that the “statutorily-created dispute resolution process” was binding “once the parties completed fact-finding of the disputed claims” and that “Baycare thereafter was not authorized to withdraw its claims in those cases.” See Health Options, Inc. v. Agency for Health Care Admin., 889 So.2d 849, 851 (Fla. 1st DCA 2004). The First District concluded that the statute required the AHCA to adopt Maximus CHDR’s initial recommendations, entered based upon the fact-finding process, as final orders. Id. The First District thus reversed the AHCA orders and remanded those cases “for further proceedings consistent with th[e] opinion.” Id.

On remand, the AHCA entered new final orders in each case, now adopting the initial recommendations of Maximus CHDR and effectively affirming the denial of the large majority of Baycare’s reimbursement claims. There was some delay between the entry of these orders and the service of the orders on Baycare. In the interim, Baycare filed “petition[s] to institute formal proceedings pursuant to § 120.569 and 120.57(1)” in the four cases. The petitions argued that Baycare’s administrative claims affected Baycare’s substantial interests and thus required due process of law not afforded by the Maxi-mus CHDR dispute resolution process. As a result, Baycare argued that sections 120.569 and 120.57(1), Florida Statutes (2002), required a point of entry to initiate formal administrative proceedings to challenge the agency action. Baycare requested a formal hearing in each case.

Shortly after Baycare filed the petitions to institute formal proceedings, it received the new final orders entered by the AHCA. Baycare thus filed notices of appeal with this court to appeal these four final orders.

In addition to appealing the new final orders, Baycare also filed a “petition to reopen and reconsider final order” with the AHCA in the four cases. This motion argued that there was “newly discovered evidence” that established that Health Options’ reimbursement formula, paying 120% of Medicare reimbursement rates as the equivalent of “usual and customary charges,” violated section 641.513(5) and breached the insurance contracts between Health Options and its clients. Health Options responded to Baycare’s “petition to reopen and reconsider.” It argued that Baycare’s appeal of the new final orders had divested the AHCA of jurisdiction to consider any request to hold formal hearings or reconsider these issues. The AHCA agreed. It issued four more orders, each finding that it lacked jurisdiction to consider the petitions to institute formal proceedings or reopen the proceedings because appeals were now pending in each case. Baycare also appealed these four orders.

Thus the consolidated appeals in this case seek review of four orders adopting Maximus CHDR’s recommendation to deny the majority of Baycare’s claims for reimbursement from Health Options and four orders denying Baycare any further administrative process before the AHCA.

II. THE LIMITED EFFICACY OF THE DISPUTE RESOLUTION PROCESS ESTABLISHED BY SECTION 408.7057

Section 408.7057 authorizes certain parties to elect to use a nonjudicial forum to resolve health insurance claim disputes. The statute sets out only limited outlines for this forum, and neither the statute nor the AHCA have provided specific procedural rules for the dispute resolution organization or the parties to follow. The process, at least as it appears to have proceeded in this case, may provide a fast and efficient method to resolve fact-intensive health coverage issues involving claims of modest size.

Unfortunately, Baycare invoked this voluntary forum to obtain a legal interpretation of a statute — apparently a matter of first impression — that would establish Baycare’s reimbursement rates from Health Options for a large class of pending claims. The undisclosed panel of decision-makers utilized by Maximus CHDR ruled against Baycare, and Baycare has been trying ever since to obtain a second opinion from a court.

This case demonstrates that the process created by section 408.7057 is not an adequate method to resolve legal issues of first impression that involve the payment of millions of dollars. Nevertheless, Bay-care selected this process. It was entitled to file a lawsuit to resolve this dispute, in which it would have been entitled to certain specific due process protections. Instead, it affirmatively chose a voluntary forum with minimal process.

In this appeal, Baycare again asserts, as it did before Maximus CHDR, the AHCA, and the First District, that Health Options’ reimbursement formula is invalid under section 641.513(5) and that a proper interpretation of the statute would require Health Options to pay the amount that Baycare billed. Health Options and the AHCA, however, have not focused their arguments on the validity of the legal determination ultimately made by Maximus CHDR. Instead, Health Options and the AHCA assert that Baycare voluntarily invoked the alternative third-party claim-dispute-resolution process of section 408.7057; that the AHCA’s adoption of Maximus CHDR’s recommendation was mandated first by section 408.7057 and confirmed by the First District in Health Options, 889 So.2d 849; that the shortcomings of the voluntary dispute resolution process do not implicate due process; and that our limited scope of review under section 120.68 does not permit this court to reverse the AHCA’s orders, which were essentially ministerial. We agree.

III. DUE PROCESS

Baycare argues that section 408.7057 and the rules implementing the alternative third-party claim-dispute-resolution forum established by the statute are facially unconstitutional because they improperly delegate quasi-judicial power to Maximus CHDR without imposing adequate standards, guidelines, or criteria as to how to exercise that power. Further, Baycare complains that the statute and rules are unconstitutional as applied because they failed to afford Baycare adequate due process. Specifically, Baycare complains that Maximus CHDR reviewed these claims through the use of unnamed professionals, provided no opportunity for discovery or for objections or rebuttal, engaged in ex parte communications, and held no formal hearing. Each of these arguments assumes that the actions taken by Maximus CHDR are the equivalent of traditional state action, requiring full due process of the law.

Constitutional due process protections do not extend to private conduct abridging individual rights; only state action is subject to scrutiny under a due process analysis. Davis v. Prudential Sec., Inc., 59 F.3d 1186, 1190 (11th Cir. 1995). Here, the parties themselves agreed to submit their claims to Maximus CHDR, a third-party private organization. This is similar to a case in which the parties agree to voluntary but binding arbitration to resolve a case. Numerous courts have held that the “state action” element of a due process claim is absent in cases involving voluntary private arbitration. Id. at 1191. This is so even when the arbitration process is created by statute and provides for enforcement of the result by a court. Id. In this context, the key to whether an alternative dispute resolution process requires due process protections rests upon whether the process is voluntary or involuntary. As the Connecticut Supreme Court has explained, “Voluntary arbitration and compulsory arbitration are fundamentally different if only because one may, under our system, consent to almost any restriction upon or deprivation of right, but similar restrictions or deprivations, if compelled by government, must accord with procedural and substantive due process.” Bodner v. United Servs. Auto. Ass’n, 222 Conn. 480, 610 A.2d 1212, 1216 (1992) (quoting Am. Universal Ins. Co. v. DelGreco, 205 Conn. 178, 530 A.2d 171, 177 (1987)). An agreement to arbitrate is equivalent to voluntarily entering into a contract, the terms of which the parties are free to specify. Davis, 59 F.3d at 1193.

Similarly, in this case Baycare voluntarily submitted its claims to Maximus CHDR, and as such agreed to that process as it was defined in the statute and the few administrative rules governing that process. Although Baycare now complains about the lack of procedural safeguards within that process, Baycare entered the process knowing that there were few defined procedural safeguards and apparently took no steps to clarify the process prior to invoking it. Baycare has not alleged that Maximus CHDR violated the terms of the statute or the rules implementing the program or that Baycare was specifically deceived about an aspect of the process. Given that Baycare had the option of filing a lawsuit, within which procedural and substantive due process protections would apply, the state did not deprive Baycare of its due process rights; Baycare chose to forego them, perhaps in the hopes of a more expedient resolution to its claims.

Baycare seeks to impose upon the process established by section 408.7057 the due process requirements normally afforded to administrative proceedings under sections 120.569 and 120.57(1). However, nothing in the statutes supports this argument. Section 408.7057 creates a voluntary process that is an alternative to the formal administrative process, as evinced by the requirement in section 408.7057(4) that the agency receiving a recommendation from the resolution organization “shall adopt the recommendation as a final order.” Further, as discussed above, due process does not require more. The statutes do not deprive Baycare of any access to the courts or involuntarily transfer or delegate any judicial powers to Maximus CHDR. Baycare can only blame itself for the inadequacies of the forum that it selected.

IV. THIS COURT’S REVIEW OF THE AHCA ORDERS

Under section 120.68(7), Florida Statutes (2002), this court may set aside an agency action or remand a case for further proceedings only under specific circumstances. Baycare argues that the AHCA’s orders erroneously interpret section 408.7057, were entered without a hearing, and are unsupported by competent, substantial evidence.

Section 408.7057(4) states that the AHCA “shall” adopt Maximus CHDR’s “recommendation as a final order.” The First District concluded that this required the entry of the final orders now on appeal. Health Options, 889 So.2d 849. The AHCA obeyed the statute and the mandate of the First District.

As to the lack of an evidentiary hearing or competent, substantial evidence to support the AHCA order, under section 120.68(7)(a)-(b), this court may only set aside agency action on these bases when the agency’s action “depends upon” factual findings. Here, the AHCA’s action was mandated by statute based upon the result of the voluntary dispute resolution process; it was not based upon the agency’s factual findings.

Our jurisdiction and our standards of review in administrative law are, as a general rule, issues that are established by the legislature through the enactment of a general statute. See art. V, § 4(b)(2), Fla. Const. Under section 408.7057, neither we nor the AHCA may review the merits of the decision of Maximus CHDR so long as it was entered in accordance with the statute.

Because the alternative dispute resolution process offered by section 408.7057 is completely voluntary, and because Baycare elected to initiate that process and forego the rights it otherwise would have had to a civil action in circuit court, Baycare has not been deprived of due process of law. Further, the AHCA has complied with section 408.7057 and the mandate of Health Options I, and there is no basis for us to set aside its orders.

Affirmed.

SILBERMAN and WALLACE, JJ„ Concur.

      . Health Options also noted that this formula would permit it to have an established formula to deal with all of the claims it receives from various hospitals nationwide. It appears Health Options has been applying this formula accordingly.

      . There were a few exceptions for claims that did not receive a response or involved other issues not related to the substantive legal issues presented in this appeal.

      .Health Options also apparently appealed four other orders based upon recommendations made in four other claims made by Baycare. The First District affirmed three of these orders and reversed the fourth. None of these claims are the subject of this appeal.

      . This specific ruling by the First District is the law of the case in this Second District appellate proceeding. We are not called upon to decide whether the Second District would reach the same conclusion in a case initiated in this court.

      . Even if the Maximus CHDR process was altered and equipped to adequately address legal issues, it would be an inefficient process because the resolution of each claim carries no precedential value. A lawsuit resolves not only the claim before the court, it also provides potentially binding precedent for future claims. Although Health Options has occasionally argued that the Maximus CHDR recommendations in this case should be considered binding precedent, there is no legal support for this argument.

      . See, e.g., Adventist Health System/Sunbelt, Inc. v. Blue Cross & Blue Shield, 934 So.2d 602 (Fla. 5th DCA 2006).

      . Indeed, it appears that in the past the AHCA has taken the position espoused by Baycare: that Health Options should not be using the formula of 120% of Medicare reimbursement payment rates to determine "usual and customary” charges. The AHCA opined that Health Options' formula should rely on the "Prevailing Health Care Charges System,” formerly known as the "Health Insurance Association of America.”

      . "Maximus” may be oddly named because the process by which it resolves claims might more aptly be described as "de minimus."


author: FULMER, Chief Judge.

text:
    Demetrice DEXTER, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1764.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anne S. Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   FULMER, Chief Judge.

Demetrice Dexter challenges his convictions and sentences for aggravated assault on a law enforcement officer, resisting arrest with violence, driving while license suspended, fleeing or attempting to elude an officer, and leaving the scene of a crash. We affirm the convictions without discussion. With respect to the sentence, the parties agree that the trial court improperly imposed a $65 cost and a $50 fine, which were challenged in a motion filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Although the circuit court granted the rule 3.800(b)(2) motion, the court did not direct the preparation of an amended sentence. We therefore reverse with directions to enter an amended sentence that excludes the challenged cost and fíne.

Affirmed in part, reversed in part, and remanded with directions.

STRINGER, J„ and THREADGILL, EDWARD F., Senior Judge, concur.


text:
    In the Interest of S.T., D.Y., D.Y., and D.Y., minor children. M.C., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D06-964.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.

      Norman A. Palumbo, Jr., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Ap-pellee.
   FULMER, Chief Judge.

M.C., the Mother, appeals from the trial court’s order adjudicating her four children dependent. Because we conclude that the evidence was legally insufficient to support the adjudication, we reverse the trial court’s Order of Dependency Adjudication and Disposition as to the Mother.

Facts and Procedural History

The Mother and her oldest child, D.Y., apparently had a difference of opinion over what he was to wear to school on June 14, 2005. D.Y. was eleven years old at the time. He was still angry when his Mother dropped him and his siblings off at school, so he slammed the van door closed. The Mother exited the van, and the two had a confrontation. The testimony at the adjudicatory hearing varies as to what happened next. The Mother admitted to attempting to slap D.Y. or at least to making a motion as if to slap him. She said she picked him up around the chest and let him go, whereupon he fell to the ground and lay there as was his habit when he got angry. A man from the neighborhood saw a “young lady” throw a child on the grass and then beat him with a fist. A teacher’s aide saw a woman kick a boy who was lying on the ground. The Department of Children and Family Services’ child protective investigator (CPI) testified that D.Y. had a bruise on the top of his forehead, and the police officer who was called to investigate the incident said that D.Y. had a swollen cheek. All four siblings were sheltered as a result of the incident, and the Mother was arrested for child abuse. The disposition of any criminal action against the Mother was not disclosed in the record on appeal.

The Department filed a Petition for Adjudication of Dependency alleging two counts against the Mother: (1) abuse against D.Y., pursuant to section 39.01(2), Florida Statutes; and (2) prospective abuse as to the other three children, pursuant to section 39.01(14)(f). The trial court held an adjudicatory hearing, at which the testimony was devoted to the incident with D.Y.; there was no testimony concerning the other three children. The court found that the Department had proved by a preponderance of the evidence that all four children were dependent.

Discussion

The Department is required to establish a child’s state of dependency by a preponderance of the evidence. § 39.607(l)(b), Fla. Stat. (2004); Fla. R. Juv. P. 8.330(a). “A court’s final ruling of dependency is a mixed question of law and fact and will be sustained on review if the court applied the correct law and its ruling is supported by competent substantial evidence in the record.” In re M.F., 770 So.2d 1189, 1192 (Fla.2000).

We examine first the trial court’s adjudication of D.Y. as dependent. A “ ‘[cjhild who is found to be dependent’ means a child who, pursuant to [chapter 39], is found by the court ... [t]o have been ... abused ... by the child’s parent or parents or legal custodians.” § 39.01(14)(a). The statutory definition of “abuse” can be parsed into two elements: abuse refers to “[1] any willful act or threatened act that results in any physical, mental, or sexual injury or harm [2] that causes or is likely to cause the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(2). Additionally, “[a]buse of a child includes acts or omissions. Corporal discipline of a child by a parent or legal custodian for disciplinary purposes does not in itself constitute abuse when it does not result in harm to the child.” Id.

Within the first element of the definition of abuse, only the “physical injury” and “harm” prongs are relevant in light of the evidence presented in this case. “ ‘Physical injury’ means death, permanent or temporary disfigurement, or impairment of any bodily part.” § 39.01(52). The definition of “harm” is more extensive:

“Harm” to a child’s health or welfare can occur when any person:
(a) Inflicts or allows to be inflicted upon the child physical, mental, or emotional injury. In determining whether harm has occurred, the following factors must be considered in evaluating any physical, mental, or emotional injury to a child: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Such injury includes, but is not limited to:
1. Willful acts that produce the' following specific injuries:
a. Sprains, dislocations, or cartilage damage.
b. Bone or skull fractures.
c. Brain or spinal cord damage.
d. Intracranial hemorrhage or injury to other internal organs.
e. Asphyxiation, suffocation, or drowning.
f. Injury resulting from the use of a deadly weapon.
g. Burns or scalding.
h. Cuts, lacerations, punctures, or bites.
i. Permanent or temporary disfigurement.
j. Permanent or temporary loss or impairment of a body part or function.
As used in this subparagraph, the term “willful” refers to the intent to perform an action, not to the intent to achieve a result or to cause an injury.
4. Inappropriate or excessively harsh disciplinary action that is likely to result in physical injury, mental injury as defined in this section, or emotional injury. The significance of any injury must be evaluated in light of the following factors: the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted. Corporal discipline may be considered excessive or abusive when it results in any of [the injuries listed in paragraph (l)(a)-(j) or]:
k. Significant bruises or welts.

§ 39.0K30).

As for the “physical injury” prong of the first element of “abuse,” the only potentially applicable type of injury under section 39.01(52) in light of the evidence is “temporary disfigurement.” However, the courts have indicated that bruising alone does not constitute the temporary disfigurement contemplated by the statute. For example, we concluded in R.S.M. v. Department of Health & Rehabilitative Services, 640 So.2d 1126, 1127 (Fla. 2d DCA 1994), that “the mere presence of bruises resulting from corporal punishment is not competent, substantial evidence of the excessive corporal punishment or temporary disfigurement” contemplated by the child protective services statutes in effect at the time. See also J.C. v. Dep’t of Children & Families, 773 So.2d 1220, 1221 (Fla. 4th DCA 2000) (no evidence that bruises resulting from spanking with a belt were significant or that they constituted temporary disfigurement); A.A. v. Dep’t of Children & Families, 908 So.2d 585, 588 (Fla. 5th DCA 2005) (“no evidence that the [child’s] brother administered excessive or abusive corporal discipline to [the child, at the mother’s behest] because there is no evidence that [the child] was injured by significant bruises or welts or that he suffered any permanent or temporary disfigurement”). On the other hand, in O.S. v. Department of Children & Families, 821 So.2d 1145, 1147-48 (Fla. 4th DCA 2002), the court distinguished J.C. and R.S.M., implicitly finding temporary disfigurement when bruising from paddling lasted six weeks.

Here, the only evidence concerning injury to D.Y. was testimony from the CPI and a police officer who interviewed D.Y. on the day of the incident and noticed a bruise on his forehead and swelling on his cheek. There was no evidence that these conditions lasted beyond the day of the incident. As such, the evidence was not sufficient to prove “temporary disfigurement.”

The other pertinent prong within the first element of the definition of abuse is “harm,” § 39.01(30). The only potentially applicable injuries under the definition of “harm” are “temporary disfigurement” and “significant bruises or welts.” § 39.01(30)(a)(l)(i), (4)(i), (k). As already noted, we conclude from our review of the case law that D.Y.’s injuries did not constitute temporary disfigurement. And, while we acknowledge that there was evidence of bruising, there was no indication here that D.Y.’s bruise or swelling was “significant”; indeed, the trial court characterized the latter as “slight swelling.” Compare J.C., 773 So.2d 1220, and A.A., 908 So.2d 585, with O.S., 821 So.2d 1145.

Further, the court was required to consider the following factors if it was using either the “willful act” or “disciplinary action” provisions of the definition of “harm”: “the age of the child; any prior history of injuries to the child; the location of the injury on the body of the child; the multiplicity of the injury; and the type of trauma inflicted.” § 39.01(30)(a), (a)(4). Although the court’s order alludes indirectly to the child’s age and mentions the location of the bruise and swelling, it failed to mention any prior injuries (no doubt because there was no testimony concerning such) and failed to address how any of the factors related to whether there was truly physical injury or excessive discipline.

Finally, as for the second element of the definition of “abuse” — that the physical injury or harm caused or would be likely to cause “the child’s physical, mental, or emotional health to be significantly impaired” — the record discloses no evidence that could be taken as demonstrating actual or likely significant impairment. As such, the evidence presented was insufficient to prove either element of the definition of “abuse.”

We now turn to the trial court’s finding that D.Y.’s three siblings were dependent. The Department’s second count alleged that “[a]s a result of the abuse to [D.Y.], the other ... children are at substantial risk of imminent abuse, abandonment, or neglect by the [Mjother.” The petition cites to section 39.01(14)(f), which provides that a “[cjhild who is found to be dependent” includes one who is found by the court “[t]o be at substantial risk of imminent abuse, abandonment, or neglect by the parent or parents or legal custodians.”

Dependency can be found in the context of prospective abuse based on proof of abuse of other children, Denson v. Dep’t of Health & Rehabilitative Servs., 661 So.2d 934, 935 (Fla. 5th DCA 1995), in particular siblings, In re C.M., 844 So.2d 765, 766 (Fla. 2d DCA 2003). However,

the evidence must demonstrate a nexus between the abuse and any prospective abuse to another sibling. O.S. v. Dep’t of Children & Families, 821 So.2d 1145 (Fla. 4th DCA 2002); D.H. v. Dep’t of Children & Families, 769 So.2d 424 (Fla. 4th DCA 2000). Generally, this nexus is established when the parent has a mental or emotional condition that will continue, such as mental illness, drug addiction, or pedophilia, and which will make it highly probable that in the future the parent will abuse or neglect another child. D.H., 769 So.2d at 427. See Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (stating that to establish nexus the Department must produce evidence that the parent’s behavior was beyond his control, was likely to continue, and placed the children at risk).

C.M., 844 So.2d at 766; see also M.F., 770 So.2d at 1194 (“A simple showing by [the Department] that a parent committed a sex act on one child does not by itself constitute proof that the parent poses a substantial risk of imminent abuse or neglect to the child’s sibling, as required by the statute.”). In short, case law construing the prospective abuse form of dependency indicates that the mere fact that a parent has abused one child does not, alone, constitute sufficient evidence for a finding of dependency as to another child with respect to that parent.

Here, because we have concluded that the evidence to support a finding of dependency as to D.Y. based on abuse was insufficient, there can be no nexus to prospective abuse of D.Y.’s siblings. Furthermore, even if the single incident with D.Y. constituted abuse, no evidence was presented to demonstrate a nexus between that abuse and prospective abuse of the three siblings. No evidence was presented that the Mother suffered from a “mental or emotional condition [that would] continue,” D.H. v. Dep’t of Children & Families, 769 So.2d 424, 427 (Fla. 4th DCA 2000), or that her behavior was beyond her control, was likely to continue, and placed the children at risk, Gaines v. Dep’t of Children & Families, 711 So.2d 190, 193 (Fla. 5th DCA 1998). Indeed, beyond the one incident, no evidence of signs of past abuse on D.Y.’s body was presented, nor was there any evidence of abuse of D.Y.’s three siblings, whether from observations of witnesses or physical examination. Additionally, no evidence was presented of the family’s disciplinary practices or observations of the family’s lifestyle in general by neighbors, teachers, or counselors.

Because the evidence was legally insufficient to establish either existing abuse as to D.Y. or prospective abuse as to the three siblings, we reverse the trial court’s Order of Dependency Adjudication and Disposition as to the Mother.

Reversed.

VILLANTI and WALLACE, JJ., Concur.

      . The petition included counts against the children's fathers, alleging abandonment. The fathers were not involved in the adjudicatory hearing and are not parties to this appeal.

      . We realize that our detailed analysis of the relevant statutes may appear to be somewhat pedantic. However, we perceive there to be a growing number of appeals in dependency cases in which the Department failed to come forward at trial with the evidence necessary to prove the statutory elements as interpreted by case law, and yet the trial court entered an adjudication of dependency based on generalized conclusions unsupported by findings of fact. Thus, we undertake a detailed analysis of the statutory elements applicable in this case in order to explain the failure of proof and to serve as a reminder of the statutory definitions that control in dependency cases.

      . The statute governing the matters discussed in R.S.M. was former Part IV, "Protective Services for Abused and Neglected Children,” of chapter 415, Florida Statutes. The sections constituting Part IV (sections 415.502-.514) have since been either repealed or renumbered as sections of chapter 39. Ch. 98-403, Laws of Fla. The definition of "physical injury” in section 415.502(13), Florida Statutes (1993), is identical to the definition of "physical injury” in section 39.01(52), which was created by chapter 98-403.


author: PER CURIAM.

text:
    Jorge RAYON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5792.
    District Court of Appeal of Florida, Second District.
    Oct. 27, 2006.
    James Marion Moorman, Public Defender, and Cynthia J. Dodge, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   PER CURIAM.

We affirm the revocation of Mr. Rayon’s probation and the resulting sentence. We remand to the trial court, however, solely for entry of a written order of revocation of probation. See Dolinger v. State, 779 So.2d 419, 420-21 (Fla. 2d DCA 2000).

Affirmed; remanded.

SILBERMAN, WALLACE, and LaROSE, JJ., concur.


text:
    S.B., a Child, Petitioner, v. STATE of Florida, Respondent.
    No. 5D06-3694.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.
    Robert Wesley, Public Defender and Jessica C.R. Buonauro, Assistant Public Defender, Orlando for Petitioner.
    Charles J. Christ, Jr., Attorney General, Tallahassee, and Jeffrey R. Casey, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We grant the petition for writ of habeas corpus as the trial court summarily adjudicated and sentenced Petitioner for direct contempt without providing Petitioner an opportunity to be heard on the matter, nor present any “evidence of excusing or mitigating circumstances.” Fla. R. Juv. P. 8.150(a); M.L. v. State, 819 So.2d 240 (Fla. 2d DCA 2002). The trial court shall, within three business days of the date of this opinion, either conduct a hearing in accordance with rule 8.150(a), or order Petitioner’s immediate release from secure detention.

PETITION GRANTED; CAUSE REMANDED.

GRIFFIN, MONACO and ORFINGER, JJ., concur.

      . We note that the trial court has apparently remanded Petitioner to secure detention for a period of 30 days for the direct contempt. Such a sentence appears to violate Section 985.037(2), Florida Statutes (2006) that provides, in pertinent part: "A delinquent child who has been held in direct or indirect contempt may be placed in a secure detention facility not to exceed 5 days for a first offense and not to exceed 15 days for a second or subsequent offense.”


author: THOMPSON, J.

text:
    K.S., Mother of D.L. and D.L., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D06-828.
    District Court of Appeal of Florida, Fifth District.
    Oct. 27, 2006.

      Ryan Thomas Truskoski, of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Gail Linscott Silva, Kissimmee, for Ap-pellee.
    Thomas Wade Young, Orlando, for Guardian Ad Litem.
   THOMPSON, J.

K.S. (mother) appeals the final order entered by the trial court terminating her parental rights to her children, De.L. and Da.L. We affirm.

The trial court terminated the mother’s parental rights on the basis that the parent-child relationship threatens the life, safety, well-being, or health of the children, on the basis of the mother’s failure to comply with a case plan, and on the basis of the mother’s egregious conduct.

The mother challenges the court’s ruling, arguing first that the trial court erred in terminating her parental rights based upon subsections (c) or (f) because the petition never alleged these grounds as a basis for termination. K.S. correctly argues that, generally, it is error to terminate parental rights on grounds not alleged in the petition. See R.S. v. Dep’t of Children & Families, 872 So.2d 412, 413 (Fla. 4th DCA 2004). We agree that the evidence at trial did not address “egregious conduct” under section 39.806(l)(f) or establish the “deplorable, flagrant, or outrageous” conduct contemplated by the section. N.L. v. Dep’t of Children & Family Services, 843 So.2d 996, 1000 (Fla. 1st DCA 2003). Accordingly, we strike the portions of the termination order that cite to the issue of egregious conduct. See M.D. v. Dep’t of Children & Families, 871 So.2d 311, 311 (Fla. 5th DCA 2004). Similarly, we strike the portions of the termination order that cite to section 39.806(l)(e) with respect to Da.L. The Guardian Ad Litem properly concedes that it was error to terminate parental rights as to him based on section 39.806(l)(e) because he was never adjudicated dependent.

The mother also argues that the court erred in terminating her parental rights on the basis of section 39.806(l)(c), which was not cited in the petition. However, extensive evidence was introduced during the three-day hearing implicating section 39.806(l)(c), and the attorneys discussed this ground in closing. KS.’s counsel did not object, and the issue was tried by implied consent. Cf. J.K. v. Dep’t of Children, 925 So.2d 1138, 1140 (Fla. 5th DCA 2006) (reversing where abandonment was not pled, argued, or tried by consent); T.M. v. Dep’t of Children & Families, 905 So.2d 993, 996 (Fla. 4th DCA 2005). “Our review of the record reveals that sufficient evidence was presented during the termination hearing to support the trial court’s decision that termination was warranted in this case. As such, the court’s ruling is affirmed.” M.D., 871 So.2d at 311.

Accordingly, the trial court’s termination order is affirmed, except those portions finding clear and convincing evidence of egregious conduct, pursuant to section 39.806(l)(f), or failure to comply with a case plan with respect to the younger Da. L., pursuant to section 39.806(l)(e), which are stricken. Id. at 311-12.

AFFIRMED, as modified.

PALMER and LAWSON, JJ., concur.

      . § 39.806(l)(c), (e) & (0, Fla. Stat. (2001).


text:
    Tyler M. PORTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1975.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Mark D. Davis of Andrews, Davis & Sutton, DeFuniak Springs, for Appellant.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from Appellant’s conviction for violating his probation, Appellant challenges the trial court’s revocation of his probation and the denial of his petition for a writ of a habeas corpus. We agree that the trial court erred by denying Appellant’s petition and reverse. Because the outcome of the petition for writ of habeas corpus controls this case, we do not address Appellant’s argument that the trial court erred in revoking his probation.

On January 22, 2002, Appellant was convicted of five counts of falsely reporting a bomb or explosion and was sentenced to four consecutive terms of five years’ probation and to five years’ imprisonment. The trial court recommended that Appellant be treated as a youthful offender. Upon this recommendation, Appellant was placed in and successfully completed youthful offender boot camp. Thereafter, the trial court modified Appellant’s prison sentence and placed him on five years’ probation consecutive to the remaining four terms of probation.

An affidavit of violation of probation was filed against Appellant. Prior to the hearing on this affidavit, Appellant filed a petition for writ of habeas corpus arguing that he had served 436 days of imprisonment as of the date of the petition and that he was entitled to immediate release due to his successful completion of boot camp. The trial court denied the petition because it believed that Appellant was only sentenced as a youthful offender on one count of the five count information and that he was sentenced as an adult on the remaining counts. After the presentation of evidence, the trial court revoked Appellant’s probation on all counts and sentenced him to two consecutive terms of four years’ imprisonment, two concurrent terms of four years’ imprisonment, and to 364 days in county jail on the remaining count.

Upon successful completion of boot camp, a trial court is required to reduce a defendant’s remaining term of incarceration to probation. § 958.045(5)(c), Fla. Stat. (2001). If a youthful offender who has successfully completed boot camp violates probation, the trial court may impose a term of incarceration not to exceed 364 days. Thomas v. State, 825 So.2d 1032, 1033 (Fla. 1st DCA 2002); Bloodworth v. State, 769 So.2d 1117 (Fla. 2d DCA 2000); § 958.04(2)(b), Fla. Stat. (2001). Appellant’s current sentence is well in excess of this statutory maximum. Contrary to the reasoning of the trial court in its denial, a defendant may not be sentenced as an adult and as a youthful offender on charges arising from the same information. Lynch v. State, 898 So.2d 277 (Fla. 2d DCA 2005); Kelly v. State, 739 So.2d 1164 (Fla. 5th DCA 1999); Louissaint v. State, 727 So.2d 403 (Fla. 3d DCA 1999); Johnson v. State, 596 So.2d 495 (Fla. 5th DCA 1992); Dimilta v. State, 590 So.2d 1074 (Fla. 2d DCA 1991). Because Appellant has already served in excess of the statutory maximum, we reverse the trial court’s denial of Appellant’s petition of habeas corpus and remand for the immediate release of Appellant as to all charges arising from this information.

REVERSED.

BROWNING, C.J., DAVIS, and LEWIS, JJ., concur.


author: WOLF, J.

text:
    Willie SIMMONS, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-4193.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges his conviction and sentence for sale of cocaine and possession of cocaine with intent to sell or deliver. Appellant raises one issue: whether the trial court properly allowed the State to exercise peremptory challenges • against several African-American prospective jurors in violation of the standards set forth in Melbourne v. State, 679 So.2d 759 (Fla.1996). Because it appears from the record that the trial court failed to determine the genuineness of one of the State’s challenges, we are required to reverse.

During jury selection, the State exercised peremptory challenges as to three of four prospective African-American jurors. The peremptory challenge exercised against Ms. Campbell, an African-American juror, is problematic. When the appellant asked the State for a race-neutral reason challenging Ms. Campbell, the State responded that “her husband is a law enforcement officer,” to which the court added, “at Baker Correctional.” The appellant argued that the stated reason might give the defense a good reason to move for a peremptory strike, but not the State. The court answered “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.”

After the jury was picked, the appellant objected to the jury and the pattern of strikes exercised by the State. The appellant considered the pattern of strikes a systematic dismissal of jurors of African-American descent. The State responded by noting that Regina Wood, number 244, was also a black female who was not stricken by the State. The court concluded by saying: “I take each one of these individually, and there has been a race-neutral reason given on each one of them regardless of their race, and the objection is overruled.” After selecting the jury, the court dismissed the potential jurors.

The trial judge’s continued reference to a race-neutral reason is insufficient to demonstrate that the court exercised its duties pursuant to Melbourne. Melbourne established a three-step process for race-based objections to peremptory challenges. In that case, the Florida Supreme Court stated:

A party objecting to the other side’s use of a peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike....
At this point, the burden of production shifts to the proponent of the strike to come forward with a race-neutral explanation (step 2). If the explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not a pretext, the strike will be sustained (step 3). The court’s focus in step 3 is not on the reasonableness of the explanation but rather its genuineness. Throughout this process, the burden of persuasion never leaves the opponent of the strike to prove purposeful racial discrimination.

679 So.2d at 764 (footnotes omitted).

The issue in this case turns on the third step: whether the state’s explanation is facially race-neutral and the court believes that, given all the circumstances surrounding the strike, the explanation is not pretext. Id. In deciding this issue, the courts have considered the following relevant circumstances: the racial make-up of the venire, prior strikes exercised against the same racial group, a strike based on a reason equally applicable to an unchallenged juror, or the singling out of a juror for special treatment. Fleming v. State, 825 So.2d 1027, 1028-1029 (Fla. 1st DCA 2002). Further, the trial court’s decision on a peremptory challenge turns primarily on an assessment of credibility and will be affirmed on appeal unless clearly erroneous. Rodriguez v. State, 753 So.2d 29, 41 (Fla.2000). Thus, in this case, the appellant has the burden of showing the trial court “clearly erred” in accepting the peremptory strike. See Melbourne, 679 So.2d at 764.

There are no specific words which the court must state to satisfy step three of the Melbourne analysis. Bowden v. State, 787 So.2d 185, 188 (Fla. 1st DCA 2001). In Fleming, this court concluded that by overruling the defense’s objections, the lower court made an implicit finding that the state’s strikes were genuine. Fleming, 825 So.2d at 1029. Similarly, in Bowden, this court looked to the stipulated record which stated “the trial court judge indicated he did not believe the strike was racially motivated.” Bowden, 787 So.2d at 188. In Bowden, this statement indicated the trial court reached step three of the Melbourne analysis and determined the strike was genuine. Id.

Unlike Fleming and Bowden, however, the record does not indicate the trial court reached step three of the Melbourne analysis. When the defense challenged the prosecution’s given reason to strike Ms. Campbell, the court merely stated “I will allow the challenge. That is a race-neutral reason. Whether or not we view it favorable for the State or favorable for the Defense, it is a race-neutral reason.” By focusing merely on the fact the State offered a seemingly race-neutral reason, and accepting that the prosecution’s reason for the strike may be solely for the benefit of the defense, it appears that the trial court bypassed the genuineness inquiry required in the Melbourne analysis.

When appellant raised his objection at the time of the swearing of the jury, the court also solely focused on the race-neutral reasons given by the prosecutor rather than the genuineness. There is no indication genuineness was considered.

This problem is exacerbated by the fact that the State’s reason for removing Ms. Campbell raises a question of genuineness by its very nature. The fact that Ms. Campbell’s husband was a law enforcement officer would appear to favor the State. While the reason was race-neutral on its face, it would appear to require further inquiry if the court was attempting to ascertain its genuineness.

Being unable to satisfy ourselves on this record that the trial court satisfied step three as outlined in Melbourne, 679 So.2d at 764, we are required to reverse and remand for a new trial. See Jones v. State, 787 So.2d 154 (Fla. 4th DCA 2001).

PADOVANO and THOMAS, JJ., concur.


text:
    Debbie J. SCHIMMEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1046.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Nancy A. Daniels, Public Defender, Fred Parker Bingham, II, Special Assistant Public Defender, and Kathleen A. Sto-ver, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   PER CURIAM.

We summarily affirm all issues raised in Debbie J. Schimmel’s appeal from her convictions and sentences on multiple counts of fraud except that relating to the denial of her motion to correct a sentencing error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), challenging the trial court’s imposition of a public-defender lien, authorized by Florida Rule of Criminal Procedure 3.720(d)(1). The court erred by ordering appellant to pay the amount of the lien without first affording her notice of the right to contest the amount, as required by the latter rule. See Campbell v. State, 745 So.2d 500 (Fla. 1st DCA 1999). This portion of the sentence is reversed with instructions that appellant be allowed a hearing as to the amount of the lien sought to be imposed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    Billy Dale SCHIMMEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-1143.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Robert Augustus Harper, Robert Augustus Harper, III, and Jonathan Mitchell Kester of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Edward C. Hill, Jr., Special Counsel, Criminal Appeals, Tallahassee, for Appel-lee.
   PER CURIAM.

We summarily affirm all issues raised in Billy Dale Schimmel’s appeal from his convictions and sentences on multiple counts of fraud except that relating to the denial of his motion to correct a sentencing error, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), challenging the trial court’s imposition of a public-defender lien, authorized by Florida Rule of Criminal Procedure 3.720(d)(1). The court erred by ordering appellant to pay the amount of the lien without first affording him notice of the right to contest the amount, as required by the latter rule. See Campbell v. State, 745 So.2d 500 (Fla. 1st DCA 1999). This portion of the sentence is reversed with instructions that appellant be allowed a hearing as to the amount of the lien sought to be imposed.

AFFIRMED in part, REVERSED in part, and REMANDED.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


author: PER CURIAM. PADOVANO, J.,

text:
    Maria NIEVES, Appellant, v. PALM BEACH COUNTY SCHOOL DISTRICT and F.A. Richard & Associates, Appellees.
    No. 1D05-4422.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.
    Jeffrey M. Friedman of Vassallo & Bilotta, Palm Springs, for Appellant.
    Katherine A. Moekler of Abel, Lurvey, Morrow and Schefer, P.A., Hollywood, for Appellees.
   PER CURIAM.

REVERSED and REMANDED for further proceedings. See City of Riviera Beach v. Deliso, 713 So.2d 426, 428 (Fla. 1st DCA 1997) (holding that the judge of compensation claims properly included permanent total disability benefits in the attorney’s fee calculation because the employer/servicing agent initially controverted compensability and because the claimant’s injury would not have been accepted as compensable and he would not have received any benefits without his attorney’s intervention).

BENTON and LEWIS, JJ., concur; PADOVANO, J., dissents with opinion.

PADOVANO, J.,

dissenting.

I respectfully dissent. The judge of compensation claims explained in detail why the Deliso case does not require an award of attorney’s fees calculated on the amount of the permanent and total disability benefits. This case differs from Deliso in that the lawyer for the claimant did not show that the award of permanent total disability benefits came about as a result of his success in establishing that the claimant suffered a compensable injury. As the judge of compensation claims explained, counsel “failed to show that the permanent total disability benefits were reasonably predictable as a result of his intervention.” Because the record supports this controlling distinction made by the judge of compensation claims, I am unable to join in the majority’s conclusion that Deliso compels a reversal in this case.


text:
    A.B., Appellant, v. STATE of Florida, Appellee.
    No. 1D06-2809.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2006.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of an adjudication of delinquency based on a finding that appellant had committed what would be third-degree grand theft if committed by an adult. Appellant contends that the evidence presented, viewed in a light most favorable to the state, established only the offense of second-degree petit theft. We agree and, accordingly, reverse and remand with directions that the trial court vacate the order of disposition and enter a new order of disposition finding that appellant committed what would be the offense of second-degree petit theft if committed by an adult.

To establish a prima facie case that appellant committed third-degree grand theft, the state was obliged to prove that the property stolen was valued at $100 or more, but less than $300, and that it was “taken from a dwelling as defined in s. 810.011(2) or from the unenclosed curtilage of a dwelling pursuant to s. 810.09(1).” § 812.014(2)(d), Fla. Stat. (2005). Appellant was alleged to have taken a cellular telephone from the victim’s home. While there is no question that he did so, the only evidence presented regarding value was to the effect that the victim paid $150 “to open the contract” for phone service approximately two months before the phone was stolen. No evidence was presented that the phone had any value independent of the contract cost, much less that it was worth more than $100. As a result, appellant could only be found to have committed a second-degree petit theft, as defined in section 812.014(3)(a), Florida Statutes (2005).

REVERSED and REMANDED, with directions.

WEBSTER, BENTON, and VAN NORTWICK, JJ., concur.


author: FARMER, J.

text:
    William S. ABRAMSON, Appellant, v. Jerald S. BEER; Sue Cobb, Secretary of State, State of Florida; and Dr. Arthur Anderson, Supervisor of Elections of Palm Beach County, Appellees.
    No. 4D06-4117.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2006.
    Rehearing Denied Nov. 2, 2006.

      William S. Abramson, West Palm Beach, for himself.
    Gerald F. Richman, John G. White, III and Leora B. Freire of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., West Palm Beach, for appellee Beer.
    Peter Antonacci and Andy V. Bardos of Gray Robinson, P.A., Tallahassee, for ap-pellee Sue Cobb, Secretary of State.
    Louis M. Silber of Silber Valente & Davis, West Palm Beach, for Dr. Arthur Anderson, Supervisor of Elections.
   FARMER, J.

Once again this ballot dispute comes before us. See Abramson v. Beer, 936 So.2d 1208 (Fla. 4th DCA 2006). The Secretary of State and Supervisor of Elections have now been properly joined. The trial judge has denied appellant’s claim for a mandatory injunction to remove Candidate Beer’s name from the ballot.

The argument is that Beer was required to resign from his position as a civil traffic infraction hearing officer to qualify for election to judicial office under Florida’s “resign-to-run” law. § 99.012, Fla. Stat. (2006). The operative statutory text provides that:

“No officer may qualify as a candidate for another public office, whether state, district, county, or municipal, if the terms or any part thereof run concurrently with each other, without resigning from the office he or she presently holds.” [e.s.]

§ 99.012(3)(a), Fla. Stat. (2006). To be covered by this provision a candidate must hold another state, district, county or municipal office for a specific term that will intersect with the term of the judicial office he now seeks by election.

Candidate Beer is a civil traffic infraction hearing officer in Palm Beach County, serving under the Chief Judge of the Fifteenth Judicial Circuit. The office of civil traffic infraction hearing officer is defined by statute as follows:

“Hearing officers shall be independent contractors and may serve either full time or part time as determined by the chief judge. In either case, they shall serve at the pleasure of the chief judge of the county and circuit in which they are to hear cases and shall have no definite term of office.” [e.s.]

§ 318.35, Fla. Stat. (2006). We think the final clause can have but one meaning: the Legislature did not intend for civil traffic infraction hearing officers to be covered by the resign-to-run law. Because Candidate Beer served at the pleasure of the Chief Judge and had “no definite term of office,” it follows that no part of any judicial term to which he might be elected could intersect with his tenure as a civil traffic infraction hearing officer before taking judicial office. We therefore find no error in the trial court’s denial of a mandatory injunction.

Affirmed.

POLEN and SHAHOOD, JJ., concur.

      . Beer had a written contract with the Chief Judge specifying a one-year period of appointment expiring June 30, 2006. The period obviously expressed the pleasure of the Chief Judge and is not illegal, as appellant suggests. The fact that Beer may have been still serving as a hearing officer when he filed papers to qualify for judicial office is of no effect because he held an appointment without "a definite term of office.” § 318.35, Fla. Stat. (2006).