author: SALCINES, Judge. ALTENBERND, Judge,

text:
    Michael P. NEAL, Appellant, v. Heather S. SWABY, Appellee.
    No. 2D05-5286.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    Virginia R. Vetter, Tampa, for Appellant.
    Michael P. Neal, pro se.
    Mario J. Cabrera of The Law Office of Mario J. Cabrera, P.A., Bartow, for Appel-lee.
   SALCINES, Judge.

Michael P. Neal appeals a paternity order. We affirm the undisputed determination that Mr. Neal is the father of the parties’ two young children. However, we reverse the remainder of the order and remand for further proceedings.

In May 2005, Mr. Neal filed a pro se petition to determine paternity and for related relief including the establishment of parental responsibility, custody, visitation, child support, and health insurance for the children. In conjunction with the petition, Mr. Neal filed a motion to deviate from the child support guidelines. In June 2005, Ms. Swaby filed a pro se coun-terpetition asking that she be named the primary residential custodian and that Mr. Neal be ordered to have no visitation with the children. In her counterpetition, Ms. Swaby also addressed the grounds stated in Mr. Neal’s motion to deviate from the child support guidelines.

In July 2005, the trial court scheduled two hearings, and entered orders referring the ease to a magistrate. The hearings were memorialized by two written notices titled “Notification of Pro Se Hearing” presumably sent to each of the parties. The latter notice set the matter for a pro se hearing on August 24, 2005; designated a presiding magistrate; and allotted thirty minutes to determine Mr. Neal’s petition for paternity, visitation, custody, and other related relief, as well as his pending motion to deviate from the child support guidelines. The order of referral explained, in bold print, that the referral to a magistrate required the consent of all parties, that the parties were entitled to have the matter heard by a judge, and that either party could object to the referral. Mr. Neal objected and a two-hour hearing was scheduled for August 31, 2005.

Both Mr. Neal and Ms. Swaby appeared for the scheduled final hearing on August 31, 2005. Mr. Neal appeared on his own behalf, while Ms. Swaby appeared with counsel. As soon as the hearing commenced and beforé any testimony was introduced, Mr. Neal sought a “postponement.” He explained that although he felt competent to represent himself in an entirely pro se proceeding, he did not feel comfortable representing himself in the hearing at which Ms. Swaby was represented by counsel. He stated that it had been his understanding that neither party was going to be represented by counsel at the hearing based on a telephone conversation he had with an individual in the clerk’s office, whom he identified by first name, as well as discussions he had with several different attorneys two of whom were in a position to represent him. He stated:

But I was told that a promise to appear would have to be filed in which I would be notified. In which I would know that an attorney would be present and give me the opportunity to retain an attorney for myself so that I would not be in an uneven situation.

The trial court indicated that the information was wrong and that it did not believe anyone in the clerk’s office would have provided such information. The court treated Mr. Neal’s request for postponement as a motion for a continuance and denied it. Numerous times during the hearing Mr. Neal reiterated his concern that he felt ill-equipped to proceed without legal representation. At one point, the trial court responded:

Mr. Neal, the next time we have to talk about this will be the last time we talk about this. My patience is not going to run much further than that. You understand. I made a ruling on that—
You’ve had your argument, I’ve made my ruling. We’re going on.

Three witnesses testified during the hearing — Mr. Neal, Ms. Swaby, and Ms. Swaby’s sister. Ms. Swaby and her sister described certain character traits of Mr. Neal and related their observations of Mr. Neal’s interaction with his daughter and the daughter’s behavior after Mr. Neal’s prior visits. Mr. Neal disputed some of their testimony and described his version of prior events. No mental health experts testified regarding the daughter’s behavior, and Ms. Swaby candidly conceded, “I have a child. But I do not know child psychology that much. I don’t know why [the parties’ daughter] was behaving the way she was.”

At the conclusion of the hearing, the trial court made a detailed oral ruling. Regarding visitation, the trial court expressed some uncertainty but nonetheless made a definitive ruling.

The paternity order was issued in October 2005. In addition to establishing paternity, the order granted sole parental responsibility for the parties’ two children to Ms. Swaby and designated her as the primary residential custodian — it denied Mr. Neal’s request for visitation.

The trial court was faced with a difficult task in determining the issues before it in this case. The uncertainty expressed by the trial court concerning Mr. Neal’s visitation rights, however, underscores why it should have granted the motion for a continuance to allow Mr. Neal the opportunity to retain counsel. The trial court was forced to make a decision concerning custody and visitation issues based only on the witnesses’ interpretation of Mr. Neal’s interaction with his daughter and her behavior following visitation. Although Mr. Neal was articulate, as were all the witnesses, he repeatedly expressed concerns about his questioning of the witnesses and he was placed at a distinct disadvantage due to his lack of knowledge concerning the nuances of courtroom procedure. The denial of the motion for a continuance led to the entry of a final order that was, at least in part, unsupported by the evidence.

We recognize that trial courts necessarily enjoy broad discretion in deciding whether to grant or deny a motion for continuance. Baron v. Baron, 941 So.2d 1233 (Fla. 2d DCA 2006). However, the exercise of that discretion is not absolute. Id. at 1235. In determining whether a trial court has abused its discretion in ruling on a motion for a continuance, this court considers certain factors. Id. Those factors include: “ ‘1) whether the movant suffers injustice from the denial of the motion; 2) whether the underlying cause for the motion was unforeseen by the mov-ant and whether the motion is based on dilatory tactics; and 3) whether prejudice and injustice will befall the opposing party if the motion is granted.’ ” Id. at 1235-36 (quoting Myers v. Siegel, 920 So.2d 1241, 1242 (Fla. 5th DCA 2006)).

In the present case, Mr. Neal clearly suffered injustice from the denial of the motion. He was denied visitation with his children as a result of a hearing at which he was required to proceed without legal representation.

Further, the underlying cause for the motion was unforeseen. Mr. Neal’s misapprehension was understandable particularly since all pleadings had been filed pro se prior to the hearing, no notice of appearance had been filed by counsel, and two prior court-generated notifications of hearing filed shortly before the final hearing had indicated that the matter was a pro se proceeding. Mr. Neal’s request could hardly be viewed as dilatory given the fact that any delay in the case worked to his detriment in reuniting with his children at the earliest available opportunity. Indeed, it is clear from the record that until being surprised by the appearance of counsel for Ms. Swaby at the hearing, Mr. Neal had every intention to proceed with a hearing before a judge who would resolve the matters set forth in the parties’ pleadings. Among other things, in seeking a delay Mr. Neal recognized that he had done a “tremendous amount of preparation” and had “driven down from Atlanta” but felt that the situation had become unequal and that it might create a disadvantage for him.

Finally, our record does not suggest that prejudice and injustice would have befallen Ms. Swaby if the motion had been granted. Although it is undoubtedly inconvenient and sometimes costly to appear for a hearing that is continued, those practical concerns certainly must yield in a situation such as that in the present ease in which a trial court is faced with the daunting responsibility to determine matters coneern-ing parents’ rights and their children’s welfare.

Given all the circumstances, the denial of the motion for a continuance was an abuse of discretion that requires a reversal of all matters decided in the order, other than the undisputed determination of paternity, and a remand for a new hearing.

Affirmed in part, reversed in part, and remanded for further proceedings.

STRINGER, J., Concurs.

ALTENBERND, Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion. I write only to explain that I am not convinced that the trial judge intended to enter a final judgment as to any issue other than paternity. The “final judgment of paternity and other related issues” determined the issue of paternity for the two children. As to visitation, it gave Mr. Neal “no visitation at this time” and then proceeded to require the parties and the children to see a licensed mental health counselor and a psychologist, after which Mr. Neal was expressly authorized to “return to court to request contact with the minor children.” The order determined that Mr. Neal would pay child support in accordance with the guidelines, but did not determine what that amount would be and expressly reserved jurisdiction to enter future orders providing for child support and related issues.

This court recently addressed a similar “final judgment” that left custody issues in limbo. See Merrigan v. Merrigan, 947 So.2d 668 (Fla. 2d DCA 2007). As in this case, Merrigan involved pro se litigants and the court’s attempt to efficiently process family law matters involving pro se litigants. While this court is sympathetic to this challenge, trial courts must ensure that the major issues are ripe for resolution before entering a “final judgment” in family law matters. A judgment that purports to finally resolve custody issues may have the unintended result of increasing the burden of proof for the noncustodial parent in future proceedings, even though a full adjudication of the custody issues was not performed on the merits. If the order on appeal in this case had been divided into a partial final judgment determining paternity and a temporary order on custody and visitation pending an additional hearing, I doubt that we would need to reverse the order.

      . Our record reflects that the parties’ daughter was born January 5, 1999, and their son was born November 21, 2002.

      .The form petition indicated that it was based on the 2000 version of the Florida Supreme Court Approved Family Law Form 12.983(a). It contained a number of items to be checked and also allowed the petitioner to provide further explanation. Among other things, Mr. Neal checked the items which provided for shared parental responsibility and undesignated primaiy residential custody. He requested visitation which he described as “a graduated visitation schedule.”

      . Mr. Neal's form motion indicated that it was based on the 2000 version of the Florida Supreme Court Approved Family Law Form 12.943.

      . Mr. Neal resided in Atlanta, Georgia, and traveled from there to attend the hearing. Ms. Swaby resided in Avon Park, Florida.

      . The order stated that Mr. Neal "has no visitation rights at this time." It provided a number of steps the completion of which would allow him to "return to court to request contact with the minor children.” Those steps included evaluations of the parties and the children by a psychologist and a licensed mental health counselor who were to make recommendations to the trial court.

      . In addition to paternity, custody, and visitation issues, the order addressed other responsibilities of the parties including the parents' need to obtain life insurance for the children’s benefit and the allocation of child support, health insurance, and uncovered medical expenses. The order also included provisions that required certain drug testing, limited the removal of the children from the State of Florida, and directed that the noncustodial parent be apprised of the children's progress in school.


source: Caselaw Access Project

author: CASANUEVA, Judge. ALTENBERND, Judge,

license: Public Domain

text:
    R.P., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 2D06-3161.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.

      Robert G. Hancock, Bradenton, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, Tampa, for Appellee.
   CASANUEVA, Judge.

R.P., the father of a daughter born in June 2000, appeals from a final judgment terminating his parental rights based on allegations that he had sexually abused his child. R.P. contends that the child was incompetent to testify and that the evidence was legally insufficient to demonstrate that he sexually abused her. In an unusual but forthright response, the State concedes that the trial court committed reversible error, and we agree. Accordingly, we reverse and remand for reinstatement of R.P.’s parental rights.

Section 39.809(1), Florida Statutes (2005), requires the Department of Children and Family Services to prove each element necessary for termination of parental rights by clear and convincing evidence. See In re D.D. (M.D. v. Dep’t of Children & Family Servs.), 879 So.2d 10 (Fla. 2d DCA 2004); In re L.B.W. (V.W. v. Dep’t of Children & Family Servs.), 868 So.2d 480 (Fla. 2d DCA 2004). “A trial court’s determination that evidence is clear and convincing will not be overturned unless it may be said as a matter of law that no one could reasonably find such evidence to be clear and convincing.” L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1194 (Fla. 1st DCA 2002). We appreciate the Department’s candor, but we are nevertheless required to undertake an independent review of whether the judgment was supported by clear and convincing evidence that R.P.’s parental rights should be terminated. We hold that the evidence in this case was legally insufficient for termination.

The trial court relied to some degree on both medical evidence and the testimony of the child, who was five years old at the time of the hearing. This young child fell woefully short of the standard for a competent witness. Her testimony was riddled with contradictions and made little sense, with the sole exception that it created a strong inference that some other person had told her what to say. We recognize that “[w]ide discretion is vested in the trial court to determine a child’s competency as a witness.” Kertell v. State, 649 So.2d 892, 893 (Fla. 2d DCA 1995) (citations omitted). Here, unlike Kertell, in which the trial court made an unsuccessful attempt to have the child witness qualified as competent, the trial court’s inquiry into this child’s competency was wholly inadequate. In spite of the father’s challenge to this child witness, the trial court never allowed the father to voir dire, posed few questions to clarify her ability to understand the difference between the truth and a lie, and never made the required findings. In fact, the court concluded that “[w]hat she said today was ... by itself non [sic] descriptive. She’s a five year old.” The child should have been disqualified from testifying. See § 90.603(2), Fla.Stat. (2005). Since she was not, the admission into evidence of her testimony in itself constituted harmful, reversible error. See Palazzolo v. State, 754 So.2d 731 (Fla. 2d DCA 2000).

The trial court also relied on certain conflicting medical evidence that was simply insufficient to demonstrate that R.P. had sexually abused his daughter. The trial court actually concluded that these “pieces of evidence are ... as described individually quite, unpredictable I guess would be the best word for it.” Nevertheless, the trial court determined that even though the individual pieces of evidence were unconvincing, the medical evidence, when considered in conjunction with the child’s incompetent testimony, constituted clear and convincing evidence of abuse. This unusual weighing of the evidence constituted reversible error.

Finally, we must observe that the trial proceedings were tape-recorded and transcribed by a court reporter with results that can only be described as dismal. The transcript is peppered with “[INAUDIBLE]” indications. Were we not reversing on the legal insufficiency of the evidence, the lack of a meaningful transcript would also require reversal. See McKenzie v. State, 754 So.2d 851 (Fla. 2d DCA 2000).

Reversed and remanded for reinstatement of R.P.’s parental rights.

SALCINES, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I concur in this opinion. It is very difficult to determine whether the Department actually proved its case in the trial court because of the low quality of the transcript that was prepared from a digital recording'of proceedings in the courtroom. I would emphasize that although we reverse the order terminating R.P.’s parental rights, we are not holding that the situation does not warrant a dependency proceeding or other state involvement. The Department failed to prove in this proceeding that R.P. is the person who infected his young daughter with an incurable sexually transmitted disease, but it is undisputed that she has the disease.


author: WALLACE, Judge.

text:
    Randall R. HARKLESS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3547.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
   WALLACE, Judge.

Randall R. Harkless appeals the summary denial of his complaint for replevin, which the circuit court treated as a motion for return of property. We reverse the summary denial of the motion and remand for further proceedings consistent with this opinion.

In his motion for return of property, Mr. Harkless sought the return of $360 that the Lake Wales Police Department had confiscated from him at the time of his arrest on July 19, 2005. He alleged that the $360 was from his “employment paycheck” and that to the best of his knowledge, the Lake Wales Police Department had possession of it. In addition, Mr. Harkless alleged that the $360 had not been taken for a tax, an assessment, or a fine, nor had it been taken under an execution.

“A trial court’s jurisdiction over a criminal proceeding includes inherent authority over property seized or obtained in connection with the proceeding and thus held in custodia legis.” Stevens v. State, 929 So.2d 1197, 1198 (Fla. 2d DCA 2006) (citing White v. State, 926 So.2d 473 (Fla. 2d DCA 2006), and Eight Hundred, Inc. v. State, 781 So.2d 1187, 1191-92 (Fla. 5th DCA 2001)). “This authority continues beyond the termination of the prosecution, thus enabling the court to direct the return of the property to its rightful owner.” Id. A facially sufficient motion for return of property must specifically identify the property and allege that it is the movant’s personal property, that the property is not the fruit of criminal activity, and that the property is not being held as evidence. See Scott v. State, 922 So.2d 1024, 1026 (Fla. 5th DCA 2006) (citing Eight Hundred, Inc. v. State, 895 So.2d 1185, 1186 (Fla. 5th DCA 2005), and Bolden v. State, 875 So.2d 780, 782 (Fla. 2d DCA 2004)).

The circuit court could have concluded in accordance with Bolden, 875 So.2d at 782, that Mr. Harkless’s motion was facially insufficient because it did not allege that the property was not the fruit of criminal activity and did not allege that the property was not being held as evidence. Instead, the circuit court denied Mr. Harkless’s motion based on the State’s response. In its response, the State objected to the return of the $360 because the time for Mr. Harkless to file a motion for postconviction relief had not yet expired. The State noted that Mr. Harkless did not file a direct appeal and that the time to file such an appeal had expired. However, the State also claimed that if Harkless prevailed on a motion for post-conviction relief or successfully petitioned for a belated appeal, “the seized cash could figure as an evidence exhibit in any retrial.”

Assuming that the circuit court determined Mr. Harkless’s motion to be facially sufficient, it should have attached portions of the record to conclusively refute his claim, or it should have held an evidentiary hearing. Bolden, 875 So.2d at 782. Nevertheless, the circuit court failed to attach any portion of the record that conclusively refutes Mr. Harkless’s entitlement to the $360. Mr. Harkless’s right to the return of his property is not contingent on the expiration of the time period within which he may file any postconviction motions. Accordingly, we reverse the order of the circuit court, and we remand for the circuit court to reconsider Mr. Harkless’s motion.

On remand, the circuit court should determine whether Mr. Harkless’s motion is facially sufficient. If the circuit court determines that the motion is facially sufficient, it may hold an evidentiary hearing. If the circuit court again summarily denies Mr. Harkless’s claim, it-must attach to its order those portions of the record that conclusively refute the claim. Alternatively, if the circuit court determines that Mr. Harkless’s motion was timely filed but facially insufficient, it should identify any deficiencies in the motion and grant Mr. Harkless leave to amend his motion within a reasonable time.

Reversed and remanded.

NORTHCUTT, J., Concurs.

KELLY, J., Concurs in result only.

      . “If the trial court finds that a motion to return property is facially sufficient, it may order the State to respond by citing applicable case law and attaching portions of the record to refute the defendant's contention that the property should be returned, after which the motion may be summarily denied. Durain [v. State, 765 So.2d 880, 880-81 (Fla. 2d DCA 2000)]. In the alternative, the trial court may hold an evidentiary hearing.” Bolden, 875 So.2d at 782.

      . At the evidentiary hearing, the trial court must first ascertain whether "the property was confiscated by a law enforcement agency” and is “still in the agency's possession.” Bolden, 875 So.2d at 782-83. Mr. Harkless is not entitled to have the property returned "[i]f the State can show that the property was entered into evidence,” that it "intends to pursue forfeiture against the property,” or that it intends "to bring another criminal prosecution at which the [property] would be admissible” into evidence. Id. at 783. “However, if the State is ‘unable to connect the items to specific criminal activity, and no one else can be identified who can demonstrate a superior possessory interest in the property, it should be returned to [the defendant] or to such person(s) as he may designate.’ ” Bolden, 875 So.2d at 783 (alteration in original) (quoting Stone v. State, 630 So.2d 660, 661 (Fla. 2d DCA 1994)).

      . "Title to unclaimed evidence or unclaimed tangible personal property lawfully seized pursuant to a lawful investigation in the custody of the court or clerk of the court from a criminal proceeding or seized as evidence by and in the custody of a law enforcement agency shall vest permanently in the law enforcement agency 60 days after the conclusion of the proceeding.” § 705.105(1), Fla. Stat. (2004). See also Sarmiento v. State, 816 So.2d 826, 827 (Fla. 3d DCA 2002) (affirming an order denying a defendant’s petition for the return of his property where the petition was not filed within sixty days after the conclusion of the criminal proceeding).


author: WHATLEY, Judge.

text:
    Alfred O. BONATI, M.D., Medical Development Corporation of Pasco County, Gulf Coast Orthopedic Center-Alfred O. Bonati, M.D., P.A., GCOC Physical Therapy, Inc., and American Medical Care, Inc., d/b/a The Bonati Institute, Appellants, v. William and Gloria CLARK, Appellees.
    No. 2D06-4089.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    Gary A. Shipman and William E. Whitney of Dunlap, Toole, Shipman & Whitney, P.A., Tallahassee, for Appellants.
    C. Steven Yerrid, Ralph L. Gonzalez and Tammy J. Judge of The Yerrid Law Firm, Tampa, for Appellees.
   WHATLEY, Judge.

Alfred 0. Bonati, M.D., Medical Development Corporation of Pasco County, Gulf Coast Orthopedic Center-Alfred 0. Bonati, M.D., P.A., GCOC Physical Therapy Inc., and America Medical Care, Inc., d/b/a The Bonati Institute (“the Appellants”) challenge the nonfinal order denying their motion to compel arbitration. We reverse.

William and Gloria Clark filed an action against the Appellants alleging, inter alia, medical negligence in the treatment of William. The Appellants responded by filing a motion to dismiss. The Clarks amended their complaint two times, and the Appellants filed motions to dismiss in response to both amended complaints. After a hearing on the motion to dismiss, the trial court dismissed one count of the complaint and otherwise denied the motion. The Appellants then filed their answer and affirmative defenses requesting a jury trial on all issues triable by a jury and asserting as their first affirmative defense the doctor-patient arbitration agreement signed by William Clark at the time he sought medical treatment. A little over a month later, the Clarks filed a motion to set trial. Later that same day, the Appellants faxed the Clarks a motion to compel arbitration, which motion they filed about a week later.

At the conclusion of the hearing on the motion to compel arbitration, the trial court found that the arbitration agreement covered all of the Clarks’ claims against the Appellants. The court acknowledged that the filing of a motion to dismiss does not constitute a waiver of the right to arbitrate, but stated that the filing of an answer and request for jury trial does. The court subsequently entered an order denying the motion to compel on the ground that the Appellants waived their right to arbitrate. This was error.

Although the Appellants asserted in their answer that they sought a jury trial on all issues triable by a jury, they also asserted as their first affirmative defense the existence of the arbitration agreement. These assertions are not mutually exclusive. One of the issues a trial court must decide in ruling on a motion to compel arbitration is whether an arbitrable issue exists. See Bland v. Health Care and Retirement Corp. of Am., 927 So.2d 252 (Fla. 2d DCA 2006). Thus, if the trial court had found that one or more issues were not subject to arbitration, the Appellants would have preserved their right to a jury trial on those issues. Because the Appellants asserted the arbitration agreement as their first affirmative defense in the same pleading in which they sought a jury trial on any issues triable by a jury, they did not waive their rights under the arbitration agreement. See Wieneke v. Raymond James & Assocs., Inc., 495 So.2d 869, 872 (Fla. 2d DCA 1986) (“[T]he appellees’ filing of their answer and amended answer did not waive their right to arbitrate since they asserted the arbitration clause as their first affirmative defense in both pleadings.”).

The Clarks argue that Williams v. Manor Care of Dunedin, 923 So.2d 615 (Fla. 2d DCA 2006), supports the trial court’s ruling, but the facts of that case make it inapposite. In that case, Manor Care filed an answer, affirmative defenses, and a demand for jury trial without mentioning the existence of the arbitration agreement. It was not until nine days later that it filed a motion to compel arbitration. This court held that Manor Care acted in a manner inconsistent with the right to arbitrate by filing an answer and demanding a jury trial. It held that the subsequent filing of a motion to compel was ineffective to reclaim the right to arbitrate. In the present case, the Appellants asserted the arbitration agreement as their first affirmative defense in their answer.

Accordingly, we reverse the order denying the motion to compel arbitration and remand with directions to the trial court to grant the motion.

Reversed and remanded with directions.

CASANUEVA and KELLY, JJ„ Concur.

      . See Wieneke v. Raymond James & Assocs., Inc., 495 So.2d 869, 872 (Fla. 2d DCA 1986); Houchins v. King Motor Co. of Ft. Lauderdale, Inc., 906 So.2d 325 (Fla. 4th DCA 2005);


author: ALTENBERND, Judge.

text:
    Floyd L. WELLNER, Appellant, v. EAST PASCO MEDICAL CENTER, INC., n/k/a Florida Hospital Zephyrhills, Inc.; and Stan Schultz, as Personal Representative of the Estate of George R. Hunter, D.O., Appellees.
    No. 2D05-2079.
    District Court of Appeal of Florida, Second District.
    March 23, 2007.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; and Jack Scarola, Darryl L. Lewis, and Rosalyn Sia Baker-Barnes of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for Appellant.
    Jack E. Holt, III, of Grower, Ketcham, Rutherford, Bronson, Eide & Telan, P.A., Maitland, for Appellees.
   ALTENBERND, Judge.

Floyd L. Wellner appeals a final judgment in favor of East Pasco Medical Center, Inc., n/k/a Florida Hospital Zephyr-hills, Inc.; and Stan Schultz, as Personal Representative of the Estate of George R. Hunter, D.O. This is a medical malpractice lawsuit in which Mr. Wellner unsuccessfully claimed that the medical negligence of Dr. Hunter and employees of the Medical Center resulted in the amputation of his right leg. The issue Mr. Wellner raises on appeal relates to the implementation of article X, section 25, of the Florida Constitution. Under the specific facts presented, we hold that the trial court did not abuse its discretion when it refused to reopen discovery or allow trial subpoenas to be used to implement the constitutional amendment in this case. The trial court also did not abuse its discretion when it refused to continue the case. Accordingly, we affirm the judgment below.

Mr. Wellner, a type II diabetic, developed an infection in his right foot after attending a Valentine’s Day “clogging” dance on February 14, 1999. The injury was initially diagnosed as a sprain. By the end of February, however, it became clear that the foot was infected. In March 1999, following further medical complications, doctors performed an amputation of Mr. Wellner’s right leg, just below the knee. He filed suit against various health care providers, alleging that the misdiagnosis caused him an otherwise unnecessary amputation.

Although the case was first noticed for trial in 2001, it was not actually tried until late 2004. The final order setting the case for trial was entered on April 20, 2004. It set the case for trial beginning November 15, 2004. The order provided that discovery would close on November 2, 2004, and that pretrial would occur on the following day.

As this case was approaching trial, the citizens of Florida were considering whether to adopt article X, section 25, of the Florida Constitution. This article is entitled “Patients’ right to know about adverse medical incidents,” and it generally provides a substantive right to have access to “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const. On July 15, 2004, the supreme court approved this proposed amendment for placement on the ballot. See Advisory Opinion To The Attorney General re: Patients’ Right To Know About Adverse Medical Incidents, 880 So.2d 617 (Fla.2004). On the same day that discovery closed in this case, the voters went to the polls and voted in favor of this amendment. The results of this election were certified on November 15, 2004.

At the pretrial conference, the day after the election, Mr. Wellner’s counsel did not move to extend or reopen discovery. The possible application of article X, section 25, did not arise until Mr. Wellner’s counsel served a series of discovery requests on November 8 — five days after pretrial and one week prior to trial. On that same date, Mr. Wellner’s counsel also filed a “motion to shorten time for response to discovery or alternatively for continuance of trial.” The trial court denied the motion the day it was served.

The case proceeded to trial. After jury selection, the court revisited Mr. Wellner’s requests that any documents available pursuant to article X, section 25, be produced at trial. The trial court again denied the requests and a subsequent request to continue the trial. After several weeks of trial, the jury returned its verdict in favor of the defendants.

The only issue on appeal from this lengthy proceeding is the trial court’s decision not to implement article X, section 25, in this case. Mr. Wellner argues that the issue presented by this case is whether the provisions of this constitutional amendment are self-executing, and thus do not require a special legislative enactment. See, e.g., Notami Hosp. of Fla., Inc. v. Bowen, 927 So.2d 139 (Fla. 1st DCA 2006); Fla. Hosp. Waterman, Inc. v. Buster, 932 So.2d 344 (Fla. 5th DCA), review granted, 926 So.2d 1269 (Fla.2006); N. Broward Hosp. Dist. v. Kroll, 940 So.2d 1281 (Fla. 4th DCA 2006). While this issue is well argued, it is not the controlling issue in this case. Admittedly, the trial court expressed doubt that the provision could be immediately activated without statute or rule of procedure. Nevertheless, the trial court did not abuse its discretion by determining that the recent vote of the people was not a sufficient basis to reopen discovery in a case that had been pending for years.

Even if the amendment is self-executing, a question that the supreme court is not likely to resolve for several more months, it did not suspend rules of procedure or orders of court. Outside this lawsuit, Mr. Wellner was free to demand compliance with the new constitutional right and to bring a separate lawsuit if he concluded that the relevant health care providers did not fulfill his right. Inside this lawsuit, any such request needed to be made within the confínes of the relevant court orders. Mr. Wellner made no effort to continue the case during the summer when the passage of this amendment was a well-publicized possibility. He did not even discuss this new development at pretrial the day after the election. He waited until the defendants were in the final stages of preparing for a lengthy trial to raise this issue. In addition, there is nothing in the sixty-two volumes of appellate record that would suggest that the denial of these eleventh-hour discovery requests prevented Mr. Wellner from adequately preparing and presenting his case. Having arranged to go to trial with a discovery cutoff on November 2, and having completed very thorough discovery by that point in time, Mr. Wellner had no procedural right to this additional discovery at the time he requested it. He has not demonstrated that the trial court abused its discretion by proceeding to trial in compliance with the conditions contained in the order setting this case for trial.

Affirmed.

CASANUEVA and VILLANTI, JJ., Concur.

      . These three cases are currently pending before the Florida Supreme Court as case numbers SC06-912, SC06-688, and SC06-2425, respectively.

      . Indeed, even if Mr. Wellner received evidence of other “adverse medical incidents” through the process permitted by article X, section 25, it is not clear that such evidence would be admissible at trial to prove a defendant’s negligence in this adverse medical incident. See generally § 90.404, Fla. Stat. (2006).


text:
    Patrick CHAMBERS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D05-4116.
    District Court of Appeal of Florida, Second District.
    April 13, 2007.
    Rehearing Denied June 8, 2007.

      Patrick Chambers, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

Patrick Chambers has filed a petition alleging ineffective assistance of appellate counsel concerning the en banc opinion issued by this court in Chambers v. State, 880 So.2d 696 (Fla. 2d DCA 2004). Although we deny the petition, the issue that Mr. Chambers raises without assistance of counsel is an exceptionally difficult issue that was overlooked by all those trained in the law that reviewed his case on direct appeal. This court delayed this decision in hopes that a case pending in the supreme court, Sanders v. State, 944 So.2d 203 (Fla.2006), would provide guidance. Although the supreme court’s decision in Sanders has been helpful to this court, it has ironically disclosed yet another troublesome issue in this case.

The issue presented by Mr. Chambers is whether it is fundamental error to instruct a jury on an improper permissive lesser-included offense that is lesser in degree than the primary offense, but which— when impacted by statutes enhancing the penalty — can provide the trial court with the option of imposing the same penalty as the primary offense. After considering the principles espoused by the supreme court in Sanders and in a prior opinion, Ray v. State, 403 So.2d 956 (Fla.1981), we conclude it is not fundamental error to instruct the jury on a permissive lesser-included offense that was not charged in the information when (1) the lesser offense was lesser in degree than the charged offense when analyzed without any reclassification, and (2) the jury has available to it outcomes under the lesser offense that would require the trial court to impose a lesser penalty or punishment for the lesser offense than the penalty for the charged offense.

Mr. Chambers raises this issue specifically as it relates to the decision at trial to instruct the jury on aggravated assault as a lesser offense of attempted second-degree murder, even though the allegations of the information did not support a charge of aggravated assault. We conclude that there was no fundamental error in this regard. However, the release of the opinion in Sanders reveals another issue in the verdict form, not addressed by Mr. Chambers in his direct appeal or in this petition: Whether it was fundamental error, before the decision in Sanders, to list attempted manslaughter, a third-degree felony, prior to aggravated battery, a second-degree felony, on the verdict form. We conclude that this additional aspect of the verdict form, or the combination of this and the improper lesser offense, did not constitute fundamental error.

In light of these holdings, we conclude that Mr. Chambers has suffered no prejudice from appellate counsel’s failure to raise these issues either on direct appeal or by motion for rehearing. Accordingly, we deny the petition.

I. THE BASIC FACTS OF THE CASE

As explained in the opinion in Mr. Chambers’ direct appeal, Mr. Chambers was involved in a shooting that occurred on March 21, 2002, inside an apartment occupied by Marcia Radway and Richard Blair. Mr. Chambers admitted that he went to the apartment that evening, but claimed that he was in another room when a fight broke out between the two occupants and a man named “Dray.” No such person was ever located. The two occupants claimed that Mr. Chambers forced his way into their apartment and threatened Mr. Blair, and then Ms. Radway, with a gun. Ms. Radway allegedly struggled with Mr. Chambers. During the struggle, the gun discharged, and she was shot in the leg. Chambers, 880 So.2d at 698.

The State charged Mr. Chambers with burglary of a dwelling, aggravated assault of Mr. Blair, and attempted second-degree murder of Ms. Radway. The information charging Mr. Chambers with these offenses alleged that he was armed with a gun and included language to support an enhanced penalty under the 10-20-life statute. See § 775.087(2), Florida Statutes (2002). Specifically, based upon the bullet wound to Ms. Radway’s leg, the information alleged that Mr. Chambers possessed a firearm, discharged that firearm, and caused great bodily harm to Ms. Radway.

The jury found Mr. Chambers not guilty of the burglary and the aggravated assault of Mr. Blair. Thus, those offenses play no role in our analysis. As to the charge of attempted second-degree murder of Ms. Radway, the jury received instructions and a verdict form that included several lesser-included offenses. In addition to the charged crime, the jury was given the option of finding Mr. Chambers guilty of six other lesser offenses, listed here in the order they appeared on the verdict form: attempted manslaughter, aggravated battery, aggravated assault, felony battery, battery, and assault. On the verdict form, the charged offense and the next three offenses (attempted manslaughter, aggravated battery, and aggravated assault) were each followed immediately by three subheadings that asked the jury whether Mr. Chambers possessed a firearm, discharged that firearm, and caused great bodily harm to Ms. Radway while committing that offense. The remaining crimes— felony battery, battery, and assault — are crimes that do not permit enhancement under the 10-20-life statute, see § 775.087(2)(a)(1)(a-r), and thus they appeared on the verdict form without any subheadings. To assist the reader, Appendix A of this opinion reproduces that portion of the verdict form related to attempted second-degree murder and the various lesser offenses; the italicized text, not part of the original verdict form, explains the potential punishments for each offense based upon the applicable statutes.

The jury convicted Mr. Chambers of aggravated assault and found that he discharged his firearm resulting in great bodily harm to Ms. Radway. For this offense, he was sentenced to twenty-five years’ imprisonment, which was the mandatory minimum term pursuant to section 775.087(2)(a)(3).

It is undisputed that aggravated assault is not a necessary lesser-included offense to attempted second-degree murder and that based upon the allegations in the information in this case it was not a permissive lesser-included offense. See Sanders, 944 So.2d at 206 (explaining that necessary lesser-included offenses are those in which the statutory elements of the lesser offense are always subsumed within those of the charged offense; permissive lesser-included offenses are those involving facially distinct elements, but the facts alleged in the accusatory pleadings are such that the lesser offense cannot help but be perpetrated if the greater offense has been); see also Blandin v. State, 916 So.2d 969, 971 (Fla. 2d DCA 2005) (stating, “a jury instruction on a permissive lesser included offense is only permitted if the elements of the lesser offense are alleged in the information and there is proof of those elements at trial”). If Mr. Chambers’ counsel had objected, this instruction should not have been given. However, Mr. Chambers’ trial counsel did not object to this instruction.

If one considers the evidence and the verdict form, trial counsel would appear to have had a reasonable basis to make such a tactical decision. Attempted second-degree murder, attempted manslaughter, and aggravated battery each suggested a physical injury that was intentionally inflicted, thus directly implicating the type of findings that would support a full enhancement under the 10-20-life statute. With respect to aggravated assault, however, the jury could have concluded that Mr. Chambers’ intent was to threaten, and not to physically injure, the victim. Because the victim claimed that she struggled with Mr. Chambers, it was possible that the jury could have decided that the. gun went off accidentally during the struggle. In that event, the jury could have found that Mr. Chambers possessed the gun during the assault but that he was not responsible for its discharge and the resulting injury. Thus, the improper permissive lesser offense of aggravated assault, from a tactical perspective, might have been the best option to provide Mr. Chambers with a sentence that was less than what he would receive for the charged offense or the next two offenses listed. Further, although the charged offense or the next two offenses listed may have permitted a similar sentencing range, with or without the enhancements from 10-20-life, a reasonable lawyer might believe that a judge would be more likely to impose a sentence closer to the bottom of the potential range if the jury selected the lowest possible offense. It is noteworthy that the trial judge in this case imposed a twenty-five-year term of imprisonment and did not elect to sentence Mr. Chambers to life in prison — a decision the trial judge may not have made if Mr. Chambers had been convicted of attempted second-degree murder.

II. THE DIRECT APPEAL AND MR. CHAMBERS’ ARGUMENT IN THIS PETITION

On direct appeal, Mr. Chambers argued that the listing of aggravated assault on the verdict form was fundamental error entitling him to a new trial. The case turned on a proper interpretation of the rule announced in Ray v. State, 403 So.2d 956 (Fla.1981). In Ray, the Florida Supreme Court held that instructing a jury on a permissive lesser-included offense that was not charged in the information was error, but that the error was not fundamental if the improper instruction involved a crime that was “lesser in degree and penalty than the main offense.” Id. at 961 (emphasis added). In our opinion in Mr. Chambers’ direct appeal, we similarly rejected Mr. Chambers’ argument that the improper instruction on the lesser offense of aggravated assault was fundamental error and explained: “Continuing to apply the Ray analysis, we conclude that aggravated assault with a firearm, a second-degree felony, is lesser in degree and punishment than attempted second-degree murder with a firearm, a first-degree felony.” Chambers, 880 So.2d at 700 (emphasis added).

In this petition, Mr. Chambers correctly observes that we did not consider the consequences of the 10-20-life statute when we announced that aggravated assault “with a firearm” was “lesser in punishment” than attempted second-degree murder “with a firearm.” Without the possible enhancement for the involvement of a firearm, aggravated assault was lesser in degree and punishment than attempted second-degree murder. However, if the júry determined that Mr. Chambers discharged a firearm resulting in great bodily harm, the minimum mandatory sentence and the potential range of penalties for the charged offense and for the improper lesser offense would be identical.

Specifically, attempted second-degree murder is a second-degree felony, see § 782.04(2), Fla. Stat. (2002) (classifying second-degree murder as a first-degree felony, punishable by a maximum sentence of life imprisonment); and § 777.04(4)(c), Fla. Stat. (2002) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony), which is reclassified to a first-degree felony pursuant to section 775.087(1)(b) if the perpetrator commits the crime while in actual possession of a weapon or firearm. In contrast, aggravated assault is a third-degree felony. See § 784.021(2), Fla. Stat. (2002).

Section 775.087(2)(a)(3) requires that any person who is convicted of a felony enumerated in section 775.087(2)(a)(1), or of attempting to commit one of those felonies, “and during the course of the commission of the felony such person discharged a ‘firearm’ ... and, as the result of the discharge, death or great bodily harm was inflicted upon any person, the convicted person shall be sentenced to a minimum term of imprisonment of not less than 25 years and not more than a term of imprisonment of life in prison.” The enumerated felonies include murder and aggravated assault. § 775.087(2)(a)(1)(a), (f). The penalty range applies without respect to the degree of the underlying crime committed.

Because Mr. Chambers reads Ray to require an unobjected-to, impermissible, lesser-included offense to stand only if it is “lesser in degree” and “lesser in penalty,” he argues that he was actually entitled to a new trial under Ray and under the analysis we applied to his case because the 10-20-life statute required the “same penalty” — not a lesser one — for both the charged offense and the improper lesser offense. He argues that his appellate lawyer should have discovered this flaw in our opinion and moved for rehearing.

Mr. Chambers must be congratulated for presenting an excellent issue that initially led both this court and the State to conclude that he might very well be entitled to relief. On further reflection, however, we conclude that the result in Mr. Chambers’ direct appeal was correct. Although we erred in declaring that aggravated assault with a firearm is categorically “lesser in punishment” than attempted second-degree murder with a firearm — at least when the provisions of the 10-20-life statute apply — we continue to conclude that the jury instructions and verdict form provided at Mr. Chambers’ trial do not constitute fundamental error under the reasoning of Ray and its proper application to this case. Consequently, Mr. Chambers is not entitled to a new appeal or a new trial.

III. A REVISION OF THE RAY TEST FOR USE IN CASES INVOLVING ENHANCEMENT

This case demonstrates that the simple test employed in Ray to determine fundá-mental error, relying on felony degree and punishment, must be refined to address cases affected by enhancement. The analysis in this case, as in Ray, begins with the premise that a conviction on a charge not made by the indictment or information is a denial of due process of law. See Crain v. State, 894 So.2d 59 (Fla.2004). This principle applies to lesser-included offenses, and thus generally prohibits the State from obtaining a conviction for a lesser-included offense, regardless of the proof at trial, unless the charging document alleges all of the necessary elements for that offense. See D.L. v. State, 491 So.2d 1243 (Fla. 2d DCA 1986). Nevertheless, a defendant may see a benefit in ignoring or inviting such an error, concluding that although a jury may not be inclined to aequit him of any wrongdoing, they may be inclined to disagree that the charge is as serious as alleged by the State. The benefit only occurs, however, if the erroneous charge permits some chance that the defendant will receive a lesser sentence or perhaps some related future benefit by virtue of being convicted of a lesser charge.

On the other hand, if the improper lesser-included offense is placed on the verdict form in an order and manner such that the “lesser” offense actually requires an equal or greater punishment than the charged offense, no benefit would be derived. There would be no tactical reason for the defendant’s counsel not to object to such an improper lesser. Under those circumstances, the jury’s selection of this improper offense while under a misconception that it is “lesser” than the charged crime would harm the defendant, whom the jury may presumably have otherwise convicted of the next proper lesser offense on the verdict form — one that may require or permit a punishment less severe than that of the charged crime or the improper lesser offense.

Ray acknowledged that this latter scenario may constitute fundamental error. Thus, it is fundamental error to allow a defendant to be convicted of a crime for which he was not charged and for which the defendant had no legal or strategic justification to include on the verdict form. Ray recognized, however, that a fundamental error analysis should not apply where the error was invited (thus the exception if the instruction was sought or relied upon), or where the failure to object may have been the result of a strategic decision intended to reap some ultimate benefit for the defendant (thus the exception for an improper instruction that was “lesser in degree and penalty”). 403 So.2d at 961.

There is another underlying concern in this case and in similar cases discussing the lesser-included offenses that are properly included on a verdict form and the order in which those lesser-included offenses are listed on the form. That concern involves whether a jury might be misled, and perhaps deprived of its inherent pardon power, by a verdict form that includes an offense that appears on the verdict form below the charged offense, suggesting to the jury that it will entail a lesser penalty for the defendant when in fact the secondary offense permits or requires an equal or greater penalty than the offense charged. This concern would theoretically be the same whether or not the lesser-included offense is properly on the verdict form.

This concern was the specific subject of Sanders v. State, 912 So.2d 1286 (Fla. 2d DCA 2005), aff'd, 944 So.2d 203 (Fla. 2006). In Sanders, this court considered whether attempted second-degree murder was a “true ‘lesser’ offense” of attempted first-degree murder in a context where the 10-20-life statute applied. 912 So.2d at 1288. Unlike Ray and Chambers, there was no question in Sanders that attempted second-degree murder was a necessary lesser-included offense to attempted first-degree murder. Similar to this case, however, both the charged offense and the lesser offense in Sanders presented the risk of equally long sentences because of the 10-20-life provisions. In affirming Mr. Sanders’ conviction, this court relied upon the fundamental error analysis in Ray, even though the lesser offense in Sanders was an appropriate necessary lesser-included offense. 912 So.2d at 1289-90. We held that the trial court did not err in designating this offense for the jury as a “lesser offense,” even though the sentencing statutes for the two crimes permitted the same punishment. Id. at 1289. This court certified the following question to the supreme court: “In order for an offense to be a lesser-included offense, must it necessarily result in a lesser penalty than either the penalty for the main offense or the next greater offense on the verdict form?” Sanders, 912 So.2d at 1291.

The supreme court answered the certified question in Sanders in the negative and affirmed our decision with one significant disagreement with our reasoning. 944 So.2d at 206-207. The supreme court clarified that the analysis of Ray did not apply unless the complained-of instruction and entry on the verdict form were error. Id. at 206. Thus, if a given instruction involves a necessary lesser-included offense or a proper permissive lesser-included offense, Ray does not apply. In that event, the supreme court clarified, lesser-included offenses are determined by examining only the elements of the offenses and the allegations in the charging documents. Sanders, 944 So.2d at 207. Those offenses that are properly charged and supported by the evidence are then listed on the verdict form. “The charged crime should be followed on the verdict form by the determined lesser included offenses in descending order by degree of offense.... Any factor required to be found by the jury for reclassification or enhancement purposes may then be placed in a separate interrogatory at the appropriate place.” Id. at 207. Thus, under Sanders, the concern that a jury might be misled by a verdict form that lists a crime that is “lesser” when the punishment may actually be greater than the charged crime based upon other factual findings is dismissed. The placement of offenses on the verdict form depends solely upon their degree, not on the potential penalties that may result.

As to the proper application of Ray, the supreme court explained that the analysis in Ray applies only when the court first determines that an instruction on a lesser offense was error, at which point the court is required to assess whether that error is fundamental. 944 So.2d at 206.

Applying both Sanders and Ray to Mr. Chambers’ case, the trial court should have listed the primary offense followed by those permissive or necessary lesser-included offenses in descending order based upon their degree and without regard to any reclassification or enhancement. Sanders, 944 So.2d at 207. The lesser-included offenses should have included only those offenses that were necessary lesser-included crimes and permissive ones that were charged in the information and supported by the evidence, or invited by Mr. Chambers. Ray, 403 So.2d at 959. Because the trial court included aggravated assault when the facts to support the charge were not alleged in the information, a trial error occurred. 7d However, that error is only “fundamental” if it runs afoul of the principles espoused in Ray.

It is important to note that Ray’s specific holding was that fundamental error did not occur in a case where the complained-of lesser offense was lesser in degree and lesser in penalty. Although Ray anticipated a case in which an improper instruction was listed as a lesser when it required a greater punishment, Ray did not involve that factual scenario. As a result, Ray did not address the specific question presented here: Is an improper instruction on a lesser-included offense fundamental error when the offense with or without reclassification is “lesser in degree” but the verdict form will allow the jury to make a finding that will permit the trial court to impose a penalty equal to the most severe penalty available for the greater offense? Reviewing the analysis employed in Ray and the concerns upon which that analysis were based, we conclude that these circumstances do not necessarily result in fundamental error.

As explained above, Ray’s “lesser in degree and penalty” test, 403 So.2d at 961, recognized that a defendant might have a strategic reason to ignore or invite an erroneous jury instruction. Thus whether an erroneous instruction or option on the verdict form was fundamental related in part to whether it may have provided some perceived benefit to the defendant. In order for an error to be fundamental, it must be harmful. See Reed v. State, 837 So.2d 366, 369-371 (Fla.2002); State v. Delva, 575 So.2d 643, 644-645 (Fla.1991). Ray ultimately turned upon whether the giving of the improper instruction was unequivocally harmful to the defendant. In the hypothetical case in which a jury is instructed on a legally improper offense that is presented to the jury as a “lesser” offense but actually requires an exactly equal or greater punishment than the charged offense, harm might be unequivocally established if the jury found the defendant guilty of the improper lesser offense. It appears, however, that this fact pattern has yet to emerge in the case law. If those circumstances existed, there would seem to be no question that trial counsel should object to the improper instruction and that trial counsel would have no tactical reason to permit the improper instruction.

In this case, however, the sentencing statutes did not require the trial court to impose the exact same or greater sentence for the lesser crime. Although findings supporting the 10-20-life enhancements would have required sentencing of twenty-five years to life for either attempted second-degree murder or aggravated assault, the trial judge retained discretion to impose a lesser sentence within this range based upon the jury’s decision to determine guilt on a crime of a lesser degree than the charged crime. Indeed, we found this factor critical in Sanders, 912 So.2d at 1290, albeit in a case in which the supreme court ultimately determined Ray did not apply, Sanders, 944 So.2d at 206. Although the charged offense and aggravated assault both required the trial judge to impose a sentence in the range between twenty-five years’ imprisonment and life if all of the aggravating factors existed, a reasonable lawyer might believe that a judge would be more likely to impose a sentence closer to the bottom of this range if the jury selected the lowest possible lesser offense.

What is more important, the options on the verdict form provided Mr. Chambers with a realistic possibility that the jury could select an option that would require the court to impose a lesser punishment than the punishment required for the primary offense of second-degree murder. As explained earlier, there was no dispute that a gun was involved in this incident but some dispute over whether Mr. Chambers intentionally fired the gun or whether it discharged accidentally during a struggle. Viewing the instructions and verdict form from trial counsel’s perspective, if the jury were inclined to find Mr. Chambers guilty of second-degree murder, the 10-20-life enhancements would almost certainly apply. However, if the jury were inclined to find Mr. Chambers guilty of only aggravated assault, there would be a possibility that the jury could also conclude Mr. Chambers was not responsible for the gun’s discharge or the resulting injury. If so, the trial judge would be required to impose a sentence less severe for aggravated assault than the penalty for second-degree murder with a firearm.

We do not address these tactical issues to evaluate the effectiveness of the trial lawyer. Instead, we point out these considerations because they play a role in deciding whether the giving of the instruction on aggravated assault without objection should be treated as a fundamental error. The fact that Mr. Chambers had a significant chance to benefit from the instruction and little chance to be harmed by it causes this court to conclude that the instruction was not fundamental error. This reasoning also recognizes that the analysis of fundamental error for such improper lesser offenses should not focus on the maximum possible punishment for each offense, but on the availability of punishments less severe than those available for the charged offense.

Returning to our initial opinion in Mr. Chambers’ direct appeal, it would appear that the language in Chambers explaining that “aggravated assault with a firearm” is lesser in degree and penalty than “second-degree murder with a firearm” is inexact. First, although our analysis of the degree of the respective crimes in footnote 7 of the opinion was generally correct, Chambers, 880 So.2d at 700 n. 7, the supreme court in Sanders has now clarified that in determining the degree of the offenses, we should not have factored in the reclassification created by possession of a firearm. Thus, if aggravated assault had been charged in the information and properly included in the instructions and verdict form, it would have been properly included below attempted second-degree murder.

Of course, because aggravated assault was not a proper lesser-included offense, it should not have appeared in the instructions or on the verdict form at all. In determining that this error was not fundamental under Ray, we oversimplified the analysis when we concluded that aggravated assault with the appropriate aggravating factors was “lesser in penalty” than attempted second-degree murder with the appropriate aggravating factors. Rather, the range of potential penalties for these crimes if all of the enhancements applied were the same, and thus the worst potential penalties for the two crimes were identical. Nevertheless, the sentencing instructions and options on the verdict form provided Mr. Chambers with the realistic possibility that the jury could choose an option under the lesser offense which would have required the trial court to impose a sentence that was lesser in penalty than a sentence for second-degree murder with a firearm. In addition, even with all of the applicable enhancements, the trial judge retained the discretion to impose a lesser sentence if the jury convicted Mr. Chambers on the lesser offense. Perhaps we should have stated that the aggravated assault was “lesser in degree and potentially lesser in penalty” than the charged offense. At least in this case, the harm or benefit of the improper lesser-included offense is not measured by the worst possible sentence, but by the lesser punishments that might be available if the jury selected the unauthorized lesser offense.

We do not need to determine whether appellate counsel was ineffective for failing to argue this complicated point on rehearing. Because we conclude that the outcome of Mr. Chambers’ original case would not have been altered by a motion for rehearing and that it would have resulted only in an adjustment to our reasoning, we deny this petition.

V. THE ADDITIONAL PROBLEM IN THE VERDICT FORM

By waiting for the supreme court’s analysis in Sanders before resolving this case, this court has discovered another problem within the verdict form that we feel compelled to address. The verdict form listed attempted manslaughter as the next lesser offense to the charged offense of attempted second-degree murder, but above the offenses of aggravated battery and aggravated assault. Moreover, the verdict form included the 10-20-life provisions as part of the manslaughter instructions.

Without regard to reclassification or enhancements, attempted manslaughter is a third-degree felony, see §§ 782.07(1), 777.04(4)(d); aggravated battery is a second-degree felony; see § 784.045(2); and aggravated assault is a third-degree felony, see § 784.021(2). Pursuant to the instructions in Sanders, therefore, the verdict form should presumably have been ordered as follows: attempted second-degree murder, aggravated battery, attempted manslaughter. As discussed above, if counsel had objected to the inclusion of aggravated assault, that offense would have been omitted and the next listed offense would have been felony battery.

To further complicate matters, the mandatory minimum sentences required by the 10-20-life statute do not apply to attempted manslaughter, see § 775.087(2)(a)(1)(a-r) (enumerating offenses to which 10-20-life provisions apply); Murray v. State, 491 So.2d 1120, 1123 (Fla.1986) (concluding that statutory provision permitting enhancement for crime of “murder” did not permit enhancement on the crime of manslaughter), although the crime could be reclassified as a second-degree felony based upon the use of a weapon, see § 775.087(1) (permitting reclassification for use of a weapon for any felony in which the use of a weapon or firearm is not an essential element). As such, a verdict form in compliance with the supreme court’s opinion in Sanders and the 10-20-life statute and one that did not include the lesser offense of aggravated assault would have permitted 10-20-life enhancements for the first two listed crimes— attempted second-degree murder or aggravated battery. Thereafter, the jury’s remaining options, each of which would not have permitted enhancement, would have been attempted manslaughter, felony'battery, and battery.

As noted above, this anomaly only came to light because of the language in Sanders regarding the proper ordering of offenses on a verdict form. Prior to the opinion in Sanders, most lawyers and judges would have assumed that all homicide offenses should be listed on the verdict form before the lesser offenses that were not homicide offenses. The schedule of lesser-included offenses contained in the Florida Standard Jury Instructions (Criminal) does not specifically include attempted crimes, but the schedules on completed homicides list offenses in this manner. Fla. Std. Jury Instr. (Crim.) at 622-624 (5th ed.).

Obviously, this issue was neither preserved in the trial court nor raised on direct appeal. We are not convinced that the ordering of the properly listed offenses as they appeared on Mr. Chambers’ verdict form was error under the case law existing at that time. Thus, although one can argue that the inclusion of aggravated assault on the verdict form, coupled with the placement of attempted manslaughter above (rather than below) aggravated battery might have harmed Mr. Chambers’ chances for a lesser sentence, we find no ineffective assistance of trial or appellate counsel in this regard. See, e.g., Gettel v. State, 449 So.2d 413 (Fla. 2d DCA 1984); Ramos v. State, 559 So.2d 705 (Fla. 4th DCA 1990).

Petition alleging ineffective assistance of appellate counsel denied.

NORTHCUTT and CASANUEVA, JJ., Concur.

Appendix A

EXCERPT OF VERDICT FORM

COUNT ONE (Marcia Radway, victim)

We the jury, find the defendant, Patrick Chambers

_Guilty of Attempted Second Degree Murder

Degree of Felony: Second Degree. §§ 782.01(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony).
Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 15 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024.(2).
And we further find during commission of said felony the defendant
_ was in actual possession of a firearm
Degree of Felony: First Degree. §§ 782.04(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(l)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 10 years’ imprisonment, § 775.087(2)(a)(l)(a)(requir-ing lO^year minimum mandatory term when person is convicted of murder and actually possessed afire-arm during the commission of the offense), and no more than 30 years’ imprisonment, § 775.082(3)(b) (providing that the maximum penalty for a first-degree felony is 30 years’ imprisonment), unless the lowest permissible sentence under the guide lines exceeds the 30^year statutory maximum, § 921.0024(2).
_was not in actual possession of a firearm
And we further find the defendant
__did discharge said firearm during the commission of the felony
Degree of Felony: First Degree. §§ 782.04.(2) (classifying second-degree murder as a first-degree felony, .punishable by life imprisonment); 777.04(h)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(1) (b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 20 years’ imprisonment, § 775.087(2)(a)(l)(a), (2)(a)(2) (requiring 20-year minimum mandatory term when person is convicted of murder and discharges a firearm during the commission of the offense), and no more than 80 years’ imprisonment, § 775.082(8)(b) (providing that the maximum penalty for first-degree felony is 30 years’ imprisonment), unless the lowest permissible sentence under the guidelines exceeds the 30^year statutory maximum, § 921.0024(2).
- did not discharge said firearm during the commission of the felony And we further find the defendant’s discharging the firearm
-did result in great bodily harm to Marcia Radway
Degree of Felony: First Degree. §§ 782.04(2) (classifying second-degree murder as a first-degree felony, punishable by life imprisonment); 777.04(4)(c) (providing that an attempt to commit a crime that is a first-degree felony punishable by life imprisonment is classified as a second-degree felony); 775.087(l)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony). Permissible Sentence: Minimum mandatory term of 25 years’ imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)(a), (2)(a)(3) (requiring 25-year minimum mandatory term when person is convicted of murder and discharges a firearm causing death or great bodily harm to any person during the commission of the offense).
- did not result in great bodily harm to Marcia Radway

_Guilty of Attempted Manslaughter, a lesser included

Degree of Felony: Third Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony); 777.04(4)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony). Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 5 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(d); 921.0024(2).
* * *[NOTE: Although this verdict form included options for 10-20-life enhancements to the crime of attempted manslaughter, manslaughter is not an enumerated offense under the 10-20-life statute as explained in the captions below]* * *
And we further find during commission of said felony the defendant
_ was in actual possession of a firearm
Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony); 777.01(1)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1)(c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony). Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 15 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(8)(c); 921.0021.(2). No minimum mandatory term of 10 years’ imprisonment under § 775.087(2)(a)(1) because manslaughter is not an enumerated offense. See Murray v. State, 191 So.2d 1120, 1123 (Fla.1986); Strahorn v. State, 436 So.2d 447, 449 (Fla. 2d DCA 1983).
_was not in actual possession of a firearm
And we further find the defendant
_did discharge said firearm during the commission of the felony
Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony); 777.01(1)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1)(c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony). Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 15 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0021(2). No minimum mandatory term of 20 years’ imprisonment under § 775.087(2)(a)(2) because manslaughter is not an enumerated offense. See Murray v. State, 491 So.2d 1120, 1128 (Fla.1986); Strahorn v. State, 436 So.2d 447, 449 (Fla. 2d DCA 1988).
_ did not discharge said firearm during the commission of the felony And we further find the defendant’s discharging the firearm
_did result in great bodily harm to Marcia Radway
Degree of Felony: Second Degree. §§ 782.07(1) (classifying manslaughter as a second-degree felony;) 777.01(l)(d) (providing that an attempt to commit a crime that is a second-degree felony is classified as a third-degree felony); 775.087(1) (c) (providing that actual possession of a weapon or firearm during the commission of a third-degree felony offense results in the crime being reclassified as a second-degree felony). Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 15 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024(2). No minimum mandatory term of 25 years’ imprisonment under '§ 775.087(2)(a)(3) because manslaughter is not an enumerated offense. See Murray v. State, 491 So.2d 1120, 1123 (Fla.1986); Stra-hom v. State, 4-36 So.2d 447, 449 (Fla. 2d DC A 1983).
_ did not result in great bodily harm to Marcia Radway

_ Guilty of Aggravated Battery, a lesser included

Degree of Felony: Second Degree. § 784-045(2) (classifying aggravated battery as a second-degree felony).
Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 15 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(c); 921.0024(2).
And we further find during commission of said felony the defendant
_ was in actual possession of a firearm
Degree of Felony: First Degree. §§ 784-045(2) (classifying aggravated battery as a .second-degree felony); 775.087(l)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony).
Permissible Sentence: Minimum mandatory term of 10 years’ imprisonment, § 775.087(2)(a)(l)(g) (requiring 10-gear minimum mandatory term when person is convicted of aggravated battery and actually possessed a firearm during the commission of the offense), and no more than 30 years’ imprisonment, § 775.082(3)(b) (providing that the maximum penalty for first-degree felony is 30 years’ imprisonment), unless the lowest permissible sentence under the guidelines exceeds the 30-year statutory maximum, § 921.0024(2).
_was not in actual possession of a firearm
And we further find the defendant
_did discharge said firearm during the commission of the felony
Degree of Felony: First Degree. §§ 784-045(2) (classifying aggravated battery as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony).
Permissible Sentence: Minimum mandatory term of 20 years’ imprisonment, § 775.087(2)(a)(1)(g), (2) (a) (2) (requiring 20gjear minimum mandatory term, when person is convicted of aggravated battery and discharges a firearm during the commission of the offense), and no more than 30 years’ imprisonment, § 775.082(3) (b) (providing that the maximum penalty for first-degree felony is 30 years’ imprisonment), unless the lowest permiésible sentence under the guidelines exceeds the 30-year statutory maximum, § 921.0024(2).
_ did not discharge said firearm during the commission of the felony
And we further find the defendant’s discharging the firearm
_did result in great bodily harm to Marcia Radway
Degree of Felony: First Degree. §§ 784.045(2) (classifying aggravated battery as a second-degree felony); 775.087(1)(b) (providing that actual possession of a weapon or firearm during the commission of a second-degree felony offense results in the crime being reclassified as a first-degree felony).
Permissible Sentence: Minimum mandatory term of 25 years’ imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)(g), (2)(a)(8) (requiring 25-year minimum mandatory term when person is convicted of aggravated battery and discharges a firearm causing death or great bodily harm to any person during the commission of the offense).
_ did not result in great bodily harm to Marcia Radway

_ Guilty of Aggravated Assault, a lesser included

Degree of Felony: Third Degree. § 784-021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 5 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(d); 921.0024(2).
And we further find during commission of said felony the defendant
_ was in actual possession of a firearm
Degree of Felony: Third Degree. § 784-021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: Minimum mandatory term of 10 years’ imprisonment, § 775.087(2)(a)(1)(f) (requiring 10-^year minimum mandatory term when person is convicted of aggravated assault and actually possessed a firearm during the commission of the offense), and no more than 15 years’ imprisonment, § 775.082(3) (c) (providing that the maximum penalty for second-degree felony is 15 years’ imprisonment), unless the lowest permissible sentence under the guidelines exceeds the 15-year statutory maximum, § 921.0024(2).
_was not in actual possession of a firearm
And we further find the defendant
_did discharge said firearm during the commission of the felony
Degree of Felony: Third Degree. § 784-021(2) (classifying aggravated assault as a third-degree felony).
Permissible Sentence: Minimum mandatory term of 20 years’ imprisonment, § 775.087(2)(a)(1)(f), (2) (a) (2) (requiring 20^year minimum mandatory term when person is convicted of aggravated assault and discharges a firearm during the commission of the offense), which is in excess of the statutory maximum of 15 years’ imprisonment, § 775.082(3)(c). If the lowest permissible sentence under the guidelines exceeds the 20-year minimum, presumably that sentence would apply with the 20^year minimum mandatory term. § 921.0024(2).
_ did not discharge said firearm during the commission of the felony And we further find the defendant’s discharging the firearm
_did result in great bodily harm to Marcia Radway
Degree of Felony: Third Degree. § 784-021(2) (classifying aggravated assault as a third-degree felony). Permissible Sentence: Minimum mandatory term of 25 years’ imprisonment but no more than life imprisonment. § 775.087(2)(a)(1)0), (2) (a) (8) (requiring 25-^year minimum mandatory term when person is convicted of aggravated assault and discharges a firearm causing death or great bodily harm to any person during the commission of the offense).
_ did not result in great bodily harm to Marcia Radway

-Guilty of Felony Battery, a lesser included

Degree of Felony: Third Degree. § 784-041(2) (providing that felony battery is a third-degree felony).
Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 5 years’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(3)(d); 921.0024(2).

-Guilty of Battery, a lesser included

Degree of Misdemeanor: First Degree. § 784-08(l)(b) (providing that battery is a first-degree misdemeanor).
Permissible Sentence:The lowest permissible sentence under the guidelines up to and including the statutory maximum of 1 year of imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(4)(a); 921.0024(2).

— Guilty of Assault, a lesser included

Degree of Misdemeanor:Second Degree. § 784-011(2) (providing that assault is a second-degree misdemeanor).
Permissible Sentence: The lowest permissible sentence under the guidelines up to and including the statutory maximum of 60 days’ imprisonment (if the lowest permissible sentence under the guidelines exceeds the statutory maximum sentence, the guideline sentence must be imposed). §§ 775.082(4)(b); 921.0024(2).

_Not Guilty

      . Mr. Chambers was also charged with tampering with evidence in violation of section 918.13, Florida Statute (2002), but that crime is unrelated to the issue presented in this decision.

      . He received an additional consecutive sentence of 21.45 months' imprisonment for the charge of tampering with evidence.

      . Because Mr. Chambers was convicted of aggravated assault relying on the elements in section 784.021(1)(a), Florida Statutes (2002), the use of a weapon was an essential element of the offense. As a result, aggravated assault in this case could not be reclassified. See § 775.087(1). Contrary to the description in our earlier opinion, Mr. Chambers was actually convicted of aggravated- assault as a third-degree felony.

      . It is interesting to note that if the instruction on aggravated assault had been proper, it appeared in the appropriate order on the ver-diet form pursuant to Sanders ' instructions to list the offenses in order of degree without respect to punishment.

      . This court stated in footnote 7: "Second-degree murder is a first-degree felony. An attempt to commit that crime reduces it to a second-degree felony. The use of a firearm, however, reclassifies the offense as a first-degree felony. Moreover, aggravated assault is a third-degree felony.” (Citations omitted.) As explained in footnote 3 of this opinion, however, the use of a firearm did not result in a reclassification of aggravated assault to a second-degree felony.

      . If aggravated assault were properly included on the verdict form, Sanders does not make clear where it should have been placed. Sanders did not discuss the appropriate order of offenses that are of the same degree. Attempted manslaughter and aggravated assault are both third-degree felonies without respect to reclassification. §§ 782.07(1), 777.04(4)(d), 784.021(2). Felony battery is also a third-degree felony. § 784.041(2). Although Sanders discourages a trial judge from examining potential penalties when determining the proper order of offenses on a verdict form, we are inclined to believe the trial court must do so when considering the proper order for offenses of the same degree. If that is true, it is also unclear whether the trial court should look at potential penalties in general, such as referring to the offense levels in the sentencing guidelines, or penalties that might be imposed based upon a potential enhancement or reclassification.
      In this case, because felony battery is neither reclassified nor enhanced under section 775.087, it would seem to be the "least” of these three offenses. Attempted manslaughter is subject to reclassification for use of a weapon, but is not subject to enhancement for use of a firearm under section 775.087(2)(a)(1)(a-r). Aggravated assault, when use of a weapon is an element of the offense, is not subject to reclassification, but is subject to enhancement for use of a firearm under section 775.087(2)(a)(1)(f). Thus, aggravated assault as a third-degree felony can easily result in a mandatory sentence that is longer than the longest possible sentence for attempted manslaughter even when it is reclassified as a second-degree felony. We do not decide the proper order for these lesser offenses in this case, but the issue is certainly one that trial judges and trial lawyers should treat with considerable care when preparing jury instructions and a verdict form for a case involving several lesser offenses of the same degree.


author: PER CURIAM.

text:
    Melvin WILEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5143.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.
    James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard E. Macdonald, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Affirmed without prejudice to Wiley’s right, if any, to file a timely and sufficient motion pursuant to Florida Rule of Criminal Procedure 3.850. We further note that Wiley has 60 days from the date of our mandate in this case to file a motion pursuant to rule 3.800(c), if he so desires.

ALTENBERND, NORTHCUTT, and LaROSE, JJ., Concur.


text:
    Alan BOGDAN, d/b/a West Coast Canvas & Marine, Appellant, v. DEPARTMENT OF FINANCIAL SERVICES, DIVISION OF WORKERS’ COMPENSATION, Appellee.
    No. 2D06-892.
    District Court of Appeal of Florida, Second District.
    May 2, 2007.
    Capp P. Taylor, Largo; and Stephen H. Haskins of Paul B. Genet, P.A., Palm Harbor, for Appellant.
    Colin M. Roopnarine, Assistant General Counsel, Tallahassee, for Appellee.
   PER CURIAM.

Alan Bogdan, d/b/a West Coast Canvas and Marine (“Bogdan”), seeks review of the Stop Work Order and Amended Order of Penalty Assessment issued by the Department of Financial Services, Division of Workers’ Compensation (the “Department”). Bogdan argues that the Department erred in determining that he was required to obtain workers’ compensation coverage under section 440.10(l)(a), Florida Statutes (2005). Bogdan argues that he is not required to obtain workers’ compensation coverage because he is a sole proprietor who is not engaged in the construction industry. We do not reach the merits of Bogdan’s argument because his failure to exhaust his administrative remedies requires us to affirm. See Odham v. Foremost Dairies, Inc., 128 So.2d 586, 593 (Fla.1961); Fla. High Sch. Athletic Ass’n v. Melbourne Cent. Catholic High Sch., 867 So.2d 1281, 1286 (Fla. 5th DCA 2004); State, Dep’t of Gen. Servs. v. Biltmore Constr. Co., 413 So.2d 803, 804 (Fla. 1st DCA 1982).

Affirmed.

STRINGER and SILBERMAN, JJ., and DAKAN, STEPHEN L., Associate Senior Judge, Concur.