author: SHEPHERD, J. ROTHENBERG, Judge COPE, C.J.

text:
    Michael WARD, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D05-1277.
    District Court of Appeal of Florida, Third District.
    Aug. 16, 2006.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for petitioner.
    Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for respondent.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   SHEPHERD, J.

The petitioner, Michael Ward, seeks a writ of prohibition to bar the lower court from commencing a trial to have him declared a “sexually violent predator” and involuntarily committed to the custody of the Florida Department of Children and Families (“the Department”) for care, control, and treatment pursuant to the Jimmy Ryce Act, (“the Ryce Act”), §§ 394.910-930, Fla. Stat. (2005). The question we must answer is whether the State is authorized under the Ryce Act to seek to involuntarily commit to the Department for care and treatment, a person who has been convicted of a sexually violent crime in the past and who is brought into “total confinement,” as that term is defined, after January 1, 1999, for any crime, sexual or non-sexual in nature. We hold that it is, and therefore deny the writ.

Facts

In 1969, Ward allegedly committed two separate acts of rape in violation of section 794.01 of the Florida Statutes (1969). In 1970, he was found incompetent to stand trial on these charges and was committed to the South Florida State Hospital. Ward escaped from this confinement in 1976 and was re-arrested after allegedly committing several other crimes, including two more rapes. On October 5, 1976, Ward pled guilty to all four rape charges. In all four cases, Ward admitted he had broken into each victim’s house to commit the crime. He was sentenced to fifty years in state prison on each charge, with the sentences to run concurrently. In 1983, this court reversed the 1969 convictions on the ground that Ward was misad-vised by counsel of the consequences of his plea. Ward v. State, 433 So.2d 1221, 1223 (Fla. 3d DCA 1983). As a result, the State nolle prossed the 1969 charges.

In the intervening years, Ward mounted post-conviction challenges to his fifty-year sentence on the remaining 1976 offenses, so that by 1993 he was released from state prison. Since then, Ward has, from time to time, been re-incarcerated and sentenced for various non-sexual offenses, most recently and significantly in January 2004 to thirty-six months in state prison for burglary of an occupied conveyance and possession of burglary tools. At that time, however, no sexual offense was alleged in addition to the burglary charge. The State filed its petition to commit Ward under the Ryce Act during the course of this incarceration.

Discussion

Ward argues that the trial court lacks jurisdiction to proceed because he was not in custody for a sexually violent offense, as that term is defined under the Ryce Act, see § 394.912(9), Fla. Stat. (2004), at the time the State filed its petition. For us to properly evaluate this claim, we turn to the jurisdictional provision of the Ryce Act in effect at the time the State commenced its Ryce Act proceeding. See Hale v. State, 891 So.2d 517, 520 (Fla.2004)(applying the jurisdictional provision of the Ryce Act in effect at the time the proceeding against Hale was commenced). The provision reads as follows:

Applicability of [the][A]ct
This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

§ 394.925, Fla. Stat. (1999).

Grammatically speaking, it is clear that this section of the Ryce Act consists of two independently acting clauses. First, the Ryce Act “applies to all persons currently in custody who have been convicted of a sexually violent offense” as that term is defined; and second, to “all persons convicted of a sexually violent offense and sentenced to total confinement in the future.” It is also apparent from a cursory review of the two clauses, aided by pronouncements of the Florida Supreme Court and lower appellate courts of this state, that the clauses are possessed of parallel and complimentary features. For example, it is now settled law that the purpose of the first clause is to address sexual predators who were in custody on the Ryce Act’s effective date, January 1, 1999, see State v. Atkinson, 831 So.2d 172, 173-74 (Fla.2002)(confirming that the phrase “currently in custody” in the first clause means in custody as defined by the Act on January 1, 1999), while the second clause is meant to address all other sexual predators. In addition, the use of the term “total confinement” has been interpreted to be co-extensive with “in custody” despite the employment by the legislature of different terminology in each clause. Gordon v. Regier, 839 So.2d 715, 718-19 (Fla. 2d DCA 2003)(concluding that “the word ‘custody’ is synonymous with ‘total confinement’ ” for purposes of section 394.925). Finally, of course, the potential committee must, in either case, be possessed of a qualifying sexual offense.

It is against this textual and interpretive backdrop that we examine the as yet unresolved question of the reach of the second clause inearcerative provision. If Ward were a potential “first clause” committee, the State would possess the unquestionable right to proceed. Hale, 891 So.2d at 521 (holding that although the defendant must be in custody on January 1, 1999, the custody need not be one for a qualifying sexual offense). In our case, Ward is a potential “second clause” committee. Although we admit the language of the second clause is not a model of clarity, we consider that under the better reading and interpretation of this section of the Ryce Act, potential second clause committees, like potential first clause committees, are subject to the reach of the Ryce Act whatever may have been the reason for their qualifying confinement.

We believe this conclusion is supported by a careful consideration of the text of the section of the Act that we are required to construe, applicable rules of statutory construction, and the history and purpose of the Act.

I.

We begin our explication for reaching this result with an analysis of the text of the provision in question, see Hale, 891 So.2d at 521 (“the intent of the legislature must guide [the court’s] analysis, and that intent must be determined primarily from the language of the statute”), and find instructive the placement of the language added to section 916.45 as it was being renumbered and amended to assume its current form.

At the time the Ryce Act was enacted, its jurisdictional provision read as follows:

Applicability of [the][A]ct
Sections 916.31-916.49 apply to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 916.32.(8), as well as to all persons convicted of a sexually violent offense in the future.

§ 916.45, Fla. Stat. (Supp.1998). At its very next annual session, convened within weeks of the January 1, 1999 effective date of the Ryce Act, the legislature amended this provision to read “[t]his part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.” Ch. 99-222, § 20, Laws of Fla. (emphasis added). Although the legislature could have made it incontestably clear that it was merely limiting the Ryce Act’s scope by inserting the amending language “and sentenced to total confinement” after the word “convicted” in the second clause of the section and replacing the preposition “of’ with “for,” so that the clause would have read “... as well as to all persons convicted and sentenced to total confinement for a sexually violent offense in the future,” it elected instead to insert the added language between the substantive phrase “sexually violent offense” and the prepositional phrase, “in the future.” We presume the legislature understands the meaning of the language it uses and the implications of its placement in a statute. See, e.g., Rinker Materials Corp. v. City of N. Miami, 286 So.2d 552, 553 (Fla. 1973)(“In statutory construction, statutes must be given their plain and obvious meaning and it must be assumed that the legislative body knew the plain and ordinary meanings of the words.”); State ex rel. Bie v. Swope, 159 Fla. 18, 24, 30 So.2d 748, 751 (1947)(“[t]he legislator is presumed to know the meaning of words and the rules of grammar ... ”); Sailboat Apartment Corp. v. Chase Manhattan Mortgage & Realty Trust, 363 So.2d 564, 568 (Fla. 3d DCA 1978)(“[T]he legislature is presumed to know the meaning of words and the rules of grammar and the court will give the generally accepted construction to both the phraseology of the act and the manner in which it is punctuated.”). In this case, we consider the legislature’s placement of the amending language between the substantive phrase “sexually violent offense” and the prepositional phrase “in the future,” evidence that the legislature had more in mind than a post-effective date reduction of the reach of the Ryce Act, the deductively unavoidable interpretation of the amended second clause sought by Ward.

Having thus concluded that the additional phrase “and sentenced to total confinement,” as drafted and inserted into the Ryce Act by the legislature in 1999, does not ineluctably require the narrow interpretation pressed by Ward, we now turn to principles of statutory construction. Seagrave v. State, 802 So.2d 281, 286 (Fla.2001)(holding that in cases of uncertainty, courts frequently resort to traditional canons of statutory construction). We begin this examination by referring first to a recognized canon of grammatical statutory construction known as the doctrine of the last antecedent, which holds that “relative and qualifying words, phrases and clauses are to be applied to the words or phrase immediately preceding, and are not to be construed as extending to, or including, others more remote.” City of St. Petersburg v. Nasworthy, 751 So.2d 772, 774 (Fla. 1st DCA 2000). Because the legislature elected to insert the amending language into the statute as it did, immediately prior to the qualifying prepositional phrase “in the future,” this canon impels us to conclude that the legislature intended the prepositional phrase “in the future” to modify the added language “and sentenced to total confinement” but not the remote phrase “sexually violent offense.” Our belief that the 1999 amendment was intended to expand and harmonize the second clause with the first rather than reduce its reach is fortified by this analysis.

II.

If the analysis presented thus far is not sufficient, however, our examination of the interaction of the section of the Ryce Act under review here with other sections of the Ryce Act compels the conclusion we draw in this case. Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992)(in construing intent, courts must “give full effect to all statutory provisions and construe related statutory provisions in harmony with one another”)(emphasis added). Although as Ward aptly points out, the purposes of the statute would be served by applying it, as the Baker Act is applied, to all persons who are dangerous — i.e., all “sexual predators” as defined by the statute — the legislature, for reasons of its own, when it originally adopted the Ryce Act in 1998, elected to narrow the reach of those who could then be gathered in for care or treatment to those persons who were “currently in custody” on the effective date of the Ryce Act. See discussion at p. 4, supra. While it is arguable that the legislature selected a single “effective date” prism for purposes of subjecting to treatment those individuals who had at any time in the past committed a qualifying offense, were “in custody,” and were placed in prison, we find that interpretation much less plausible and harmonious with a legislative intent that those who had earned a qualifying sexual offense in the past would be potentially subject to the Ryce Act if they were either in custody on January 1, 1999, or at some future date committed an act which resulted in their “total confinement.” In fact, we find the notion argued by the petitioner in support of relief here that the legislature necessarily intended a single-day prism for purposes of gathering all past offenders to be rationally farfetched. Cf. Gordon, 839 So.2d at 716 n. 1 (stating that while the petitioner could not be committed under the “first clause” of section 394.925 because he was not in custody at the time the proceeding was commenced, “[t]he [Ryce] Act could be applicable to [him] in the future should he ever be sentenced to total confinement”); Tabor v. State, 864 So.2d 1171, 1174 (Fla. 4th DCA 2004)(stating in a “clause one” case that “Appellant’s argument that his current incarceration must be as a result of a sexually violent offense is refuted by ... other provisions of the Ryce Act....”).

Other provisions of the Ryce Act support this conclusion. For example, section 394.913 of the Ryce Act requires certain agencies, including the Florida Department of Corrections, Florida Department of Juvenile Justice, and Florida Department of Children and Families, who may have custody of a potential committee, to give notice and provide certain medical and other information to a multi-disciplin-ary team of health professionals for a determination of whether the person is a sexually violent predator within the meaning of the Ryce Act “at least 545 days prior to [ ] anticipated release” in the case of the Department of Corrections, or “180 days prior to [ ] anticipated release” in the case of the remaining agencies. § 394.913(1), Fla. Stat. (1999). The office of the state attorney must likewise be notified. Id. Notably, notice to the multidisciplinary team and the state attorney is required not only for persons who have been convicted of a sexually violent offense in this state, but also those “persons [who] “ha[ve] never been convicted of a sexually violent offense in this state but [have] been convicted of a sexually violent offense in another state or in federal court....” Id. (emphasis added). Section 394.913 clearly contemplates Ryce Act filings against individuals brought into custody in Florida after January 1, 1999, for a non-sexual offense where the qualifying sexual offense is a prior conviction in a non-Florida state court or a federal court anywhere in the United States. The interpretation of the second clause of section 394.925 pressed by Ward would render this portion of section 394.913(1) of the Florida Statutes meaningless. We decline to adopt such an interpretation. See Connecticut Nat’l Bank v. Germain, 503 U.S. 249, 253, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992)(noting that “courts should disfavor interpretations of statutes that render language superfluous”); Johnson v. Feder, 485 So.2d 409, 411 (Fla.1986)(“Statutory interpretations that render statutory provisions superfluous ‘are, and should be, disfavored’.”)(internal citation omitted); see also Tabor, 864 So.2d at 1173 (“Because [clause one] does not link current incarceration to [a] sexually violent crime, and expressly includes convictions for such crimes from jurisdictions other than Florida, we hold that the act does apply to appellant.”)(emphasis added).

Secondly, we observe that the definitional section of the original version of the Ryce Act, § 916.32(10), Fla. Stat. (Supp. 1998), defined “total confinement” to include only persons “currently being held in any physically secure facility being operated or contractually operated for the Department of Corrections, the Department of Juvenile Justice, or the Department of Children and Family Services.” However, during the course of the same 1999 session of the legislature, during which by our view the legislature set about expanding and harmonizing “clause one” and “clause two” of then section 916.45 of the Florida Statutes, the same legislature expanded the definition of “total confinement” to state that “total confinement” for the “purpose of person[s] serving an incarcerative sentence under the custody of the Department of Corrections or the Department of Juvenile Justice [shall include persons] being held in any other secure facility for any reason.” § 394.912(10), Fla. Stat. (1999)(emphasis added). In our view, this is further evidence that the legislature was thinking expansively during the course of its consideration of the 1999 amendments to the Ryce Act. If the legislature wished to limit Ryce Act incapacitation proceedings based upon post-January 1, 1999 incarcerations solely to persons in “total confinement” for a qualifying sexually violent offense, we are confident the legislature knew how to, and could have economically done so. See, e.g., § 912.32(3), Fla. Stat. (Supp.l998)(limiting “Department” to mean only the Department of Children and Family Services); see also State v. Marshall, 695 So.2d 719, 724 (Fla. 3d DCA 1996), aff'd, 695 So.2d 686 (Fla.1997)(not-ing that “if the 1991 legislature wanted to eliminate, or limit, [duties required by it], the legislature knew very well how to revise or amend [the statute]”).

Thirdly, in determining the effectiveness of the 1999 Ryce Act, the Florida legislature required the Department of Corrections to keep statistical track of individuals qualifying for the Ryce Act and specifically noted that “At a minimum, the information that must be collected and compiled for inclusion in the reports includes: whether the qualifying offense was the current offense or the prior offense.... ” Ch. 99-222, § 27, at 1388, Laws of Fla. We see little utility in such a requirement if the legislature were of a view that “second clause” proceedings were limited to those persons who both were convicted of sexual violence after January 1, 1999, and were in confinement for that offense at the time the proceeding was initiated.

III.

We reach a final level of comfort that the scope of the second clause of the Ryce Act encompasses otherwise qualifying sexual offenders whether or not they are then incarcerated for a sexual or non-sexual offense through a consideration of both the history and purpose of the Ryce Act, and recent rule-making by the Florida Supreme Court with respect to the Ryce Act.

When the Ryce Act was adopted in May 1998, it was in response to a heinous crime that had been committed on a small child in Miami-Dade County, Florida. Our high court has found that the Ryce Act was intended to “serve[ ] the dual state interests of providing mental health treatment to sexually violent predators and protecting the public from these individuals,” Westerheide v. State, 831 So.2d 93, 112 (Fla.2002), by enabling the state to bring into involuntary confinement for care and treatment those individuals who fall within “[that group of] small but extremely dangerous number of sexually violent predators” for whom the existing involuntary commitment programs may be inadequate but whose predilection for “engaging in repeat acts of predatory sexual violence is high.” § 394.910, Fla. Stat. (Supp.1998). Some years earlier, our supreme court stated, “[t]he provisions of statutes enacted in the public interest,” such as the Ryce Act which we here construe, “should be given a liberal construction in favor of the public.” Dep’t of Envtl. Regulation v. Goldring, 477 So.2d 532, 534 (Fla.1985). Although we believe a sound reading of the text and correct application of the rules of statutory construction impels the result we reach in this case, we also believe our construction of the statute comports with the history and purpose behind the Ryce Act.

In so concluding, we finally note that within the last several months, the Florida Supreme Court approved an amendment to Florida Rule of Criminal Procedure 3.172, requiring that a defendant who now or in the future pleads guilty to any offense be advised of the potentiality of a future Ryce Act proceeding, “if the defendant has been previously convicted of [a sexually violent] offense.” In re Amendments to Fla. Rule of Grim. Procedure 3.172, 911 So.2d 763, 765 (Fla.2005)(emphasis added). This advice would amount to an incorrect statement of law and have no effect other than engendering unnecessary dread in defendants considering or making pleas if prior convictions for sexually violent offenses could not later be used as a basis for a Ryce Act action. Amended Rule 3.172 is consistent with our reading of the Ryce Act.

Because we find that section 394.925 authorizes the State to seek to involuntarily commit Ward for care and treatment under the Jimmy Ryce Act, we deny the writ. Nevertheless, because we consider this case to have significant statewide impact, we certify the following question to the Florida Supreme Court as one of great public importance pursuant to Article V, section 3(b)(4) of the Florida Constitution:

WHETHER A PERSON WHO WAS NOT IN CUSTODY ON JANUARY 1, 1999, IS ELIGIBLE FOR CIVIL COMMITMENT UNDER THE JIMMY RYCE ACT IF THAT PERSON WAS SENTENCED TO TOTAL CONFINEMENT AFTER JANUARY 1, 1999, BUT THE QUALIFYING CONVICTION OCCURRED BEFORE JANUARY 1,1999.

Petition denied.

ROTHENBERG, Judge

(concurring).

I completely concur and join with Judge Shepherd’s thorough, well-reasoned analysis and conclusion. I therefore write merely to note that to hold otherwise would result in a constitutional infirmity, a result clearly not intended by the legislature, and one which defies common sense.

The original version of the Ryce Act became effective on January 1, 1999. As originally enacted, section 916.45, Florida Statutes (Supp.1998), provides that the Ryce Act applies:

to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 916.32(8), as well as to all persons convicted of a sexually violent offense in the future.

On May 26, 1999, this particular section was renumbered as section 394.925 and modified to add the words “and sentenced to total confinement” to the second clause. As modified, section 394.925 provides that the Ryce Act applies:

to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

§ 394.925, Fla. Stat (1999)(emphasis added).

Section 394.912, Florida Statutes (1999), referred to above in the amended Act, is the definitional section of the Act. Section 394.912(9)(g) defines a “sexually violent offense” as including “any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense.” Section 394.912(11), Florida Statutes (1999), defines “total confinement” as, among other things, “being held in any other secure facility for any reason.” (emphasis added).

The Florida Supreme Court in Hale v. State, 891 So.2d 517 (Fla.2004), has already determined that the original version applies to all persons who were incarcerated for any offense at the time the Act became law if they had been previously convicted for a sexually violent offense in any state or federal court. It specifically held that since the original version of the Act did not link the current incarceration to a sexually violent offense, the legislature did not intend that it apply only to those persons currently in custody for a sexually violent offense. Hale, 891 So.2d at 522 (“We find that the Ryce Act does not require that the respondent's] current incarceration be for a sexually violent offense.”).

Ward asks us to conclude that, based upon the amendment, although he could be subjected to the Act if he had been previously convicted of a sexually violent offense and was incarcerated for any offense at the time it was passed, if he was not incarcerated when the amended Act became law, then the amended Act could only apply to him if he was convicted and incarcerated for a sexually violent offense in the future. This interpretation defies common sense and would unnecessarily render the amended Act unconstitutional. See generally Franklin v. State, 887 So.2d 1063, 1073 (Fla.2004)(holding that a statute “must be construed, if fairly possible, as to avoid unconstitutionality”); Cassady v. Consol. Naval Stores Co., 119 So.2d 35, 37 (Fla.1960)(holding that courts have a “duty to interpret a legislative Act so as to effect a constitutional result if it is possible to do so”).

The amended Act, as Ward would have us interpret it, would be unconstitutional as it would provide for the disparate treatment of individuals who had the ill-fortune of being incarcerated (for any offense) at the time the amended Act was passed, versus those who were not confined when the amended Act became effective, but who were later convicted and confined. Ward’s interpretation would have us treat individuals with a prior conviction for a sexually violent offense and incarcerated for a non-sexually violent offense at the time the amended Act became effective, harsher than those individuals with a prior conviction for a sexually violent offense, but not incarcerated at the time the amended Act became effective, if they commit a non-sexually violent offense in the future and are incarcerated. Thus, those individuals who commit non-sexually violent offenses in the future would not be subject to the amended Act pursuant to Ward’s suggested interpretation, whereas others who were convicted of a non-sexually violent offense in the past and happened to be in custody at the time the amended Act passed, would. This is so despite the fact that those in confinement at the time the amended Act became effective had no notice that further confinement under the Ryce Act was possible, while those who were not incarcerated at the time that the amended Act was passed, were on notice that their subsequent conviction and incarceration, even for a non-sexually violent offense, could subject them to further confinement under the Ryce Act. Such an application would violate equal protection under both the Florida and the United States Constitutions and makes no sense whatsoever.

A plain reading of the amendment, when read in conjunction with section 394.912(9)(g), which defines sexually violent offense as including “any federal conviction or conviction in another state for a felony offense that in this state would be a sexually violent offense,” and section 394.912(11), which defines “total confinement” as “being held in any secure facility for any reason,” make it clear that the Act, as amended, is meant to apply to those persons currently convicted and serving sentences and those who are convicted and incarcerated in the future, whether or not the offense for which they are incarcerated for is a sexually violent one, as long as they have at some time in the past, been convicted of a sexually violent offense. This is the interpretation articulated by the Florida Supreme Court in Hale regarding the original version of the Act. The insertion of the words “and sentenced to total confinement” in the amended Act does not do violence to this interpretation. I submit that the amendment to the Act is simply a clarification of its application, to specifically limit its application to those persons incarcerated (“total confinement”), as opposed to those persons who have completed their sentences and have been released or are on some other form of supervision.

Thus, the amended Act would treat those individuals, subject to its application, exactly the same as those who fell under its umbrella in the original Act and treat all persons convicted of a prior sexually violent offense the same. Under either scenario, if a person has been convicted of an enumerated offense and is in total confinement for any purpose, he/she may be subject to the Act. Not only does this interpretation pass constitutional muster, it makes absolute sense.

COPE, C.J.

(concurring in part, dissenting in part).

The question before us is how to interpret the portion of the Jimmy Ryce Act which defines who is eligible for civil commitment. See § 394.925, Fla. Stat. (2004). The statute is simple, and quite clear.

So far as pertinent here, an offender is covered by the Act if he is convicted by a qualifying offense after January 1, 1999, and is sentenced to total confinement for that offense. See id. Since the petitioner, Michael Ward, was not convicted of a qualifying offense after January 1, 1999, it follows that he is not covered by the Act and is entitled to have the civil commitment proceeding terminated. I therefore dissent on the merits but concur in certifying the question of great public importance.

I.

In 1976 petitioner-defendant Ward was adjudicated guilty (pursuant to a guilty plea) in four sexual battery cases. As explained in the majority opinion, he was imprisoned for those crimes and later released.

On January 1, 1999, the Jimmy Ryce Act took effect. The defendant was not in custody at that time.

In 2004 the defendant was sentenced to thirty-six months in prison for burglary of an unoccupied conveyance and possession of burglary tools. These were not sexual offenses and are not qualifying offenses under the Jimmy Ryce Act.

In January 2005, the State initiated civil commitment proceedings against the defendant under the Act. The State maintains that the defendant qualifies for civil commitment because of (a) his 1976 sexual battery convictions, and (b) the fact-that he was incarcerated, albeit for a nonsexual offense, after January 1, 1999.

The defendant moved to dismiss and for immediate release. The defendant argued that under the Act, the 1976 sexual battery convictions do not count. The defendant contends that an offender qualifies for civil commitment if — and only if — he is convicted of a qualifying offense after January 1, 1999, and incarcerated for that offense.

The trial court denied the defendant’s amended motion to dismiss. The defendant has filed a petition for writ of prohibition, contending that he does not qualify for civil commitment as a matter of law.

II

On January 1, 1999, the Jimmy Ryce Act went into effect. It created a civil commitment procedure for offenders who have been convicted of a qualifying sex crime and meet specified commitment criteria. See § 394.912(9)00), Fla. Stat (2004).

The Act contained an “applicability” section which spelled out whom the Act covered. The first group — not involved in this appeal — consisted of persons in custody on January 1, 1999, who had been convicted of a qualifying offense. That provision is not applicable here because petitioner-defendant Ward was not in custody on January 1,1999.

The second group is the one involved here. The original “applicability” section stated:

916.45 Applicability of act. — Sections 916.31-916.49 apply to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 916.32(8), as well as to all persons convicted of a sexually violent offense in the future.

§ 916.45, Fla. Stat. (Supp.1998) (emphasis added).

Under this language, an offender qualified if he was convicted of a sexually violent offense “in the future.” The effective date of the Act was January 1, 1999, so “in the future” meant after January 1, 1999. Therefore an offender qualified for civil commitment if he was convicted of a sexually violent offense after January 1, 1999. The majority opinion and this opinion are unanimous on that point.

Defendant Ward was not convicted of a sexually violent offense after January 1, 1999. Under the original version of the Jimmy Ryce Act, the defendant did not qualify for civil commitment.

III.

In May, 1999, the legislature added new language to the “applicability” section. The issue in this case is how to interpret the amended statute.

The 1999 amendment added — using the word “and”- — a second requirement for an offender to qualify for civil commitment: the defendant had to be sentenced to total confinement. As amended, the “applicability” section stated:

394.25 Applicability of act. — This part applies to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s. 394.912(9), as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.

§ 394.25, Fla. Stat. (emphasis added). The Act already required that an offender had to be convicted of a qualifying offense after January 1, 1999. The Legislature simply added a second requirement: the defendant had to be sentenced to total confinement.

A dictionary definition of “and” states that it is “used as a function word to indicate connection or addition esp. of items within the same class or type; used to join sentence elements of the same grammatical rank or function.” Webster’s New Collegiate Dictionary 43 (1977).

The sentence elements here are:

Original Version

[convicted of a sexually violent offense] [in the future].

Amended Version

[convicted of a sexually violent offense] [and] [sentenced to total confinement] [in the future].

“And” means “and.” Where previously there was one requirement (conviction after January 1, 1999), now there are two (conviction and total confinement), both of which must occur after January 1, 1999.

The defendant was not convicted of a qualifying crime after January 1, 1999. It follows that he is not eligible for civil commitment under the Act.

IV.

The majority opinion says that by adding new language to the statute, the Legislature changed the meaning of the already existing language. That is not correct.

The majority acknowledges that the eligible group was originally “all persons convicted of a sexually violent offense in the future,” i.e., after January 1, 1999. The majority says that because the Legislature inserted new language before “in the future,” it follows that the Legislature intended “in the future” to apply only to the new phrase, not the old phrase.

Respectfully, this is contrary to common understanding. The Jimmy Ryce Act already had an accepted meaning: that it applied to persons convicted of a qualifying offense after January 1,1999. Under ordinary drafting practices, if the Legislature had wanted to change that part of the statute, it would have done so expressly and not by mere implication.

“Provisions of the original act or section which are repeated in the body of the amendment, either in the same or equivalent words, are considered a continuation of the original law.” 1A Norman J. Singer, Statutes and Statutory Construction § 22:33, at 392 (2002).

V

The majority opinion relies on the so-called doctrine (or rule) of the last antecedent, which is an aid to statutory construction. Majority opinion at 9-10. The majority opinion relies on that doctrine for the proposition that the phrase “in the future” in this ease modifies only the phrase “sentenced to total confinement.” The majority opinion is incorrect on that point.

A.

Professor LeClercq has explained the doctrine of the last antecedent as follows: By the late 1880s, Jabez Sutherland, who wrote Sutherland on Statutory Construction, had grappled with enough legal ambiguity after investigating complicated and litigated statutes that he invented a grammar/punctuation rule in hopes of resolving future statutory problems:

Referential and qualifying phrases, where no contrary intention appears, refer solely to the last antecedent. The last antecedent is the last word, phrase, or clause that can be made an antecedent without impairing the meaning of the sentence. This proviso usually is construed to apply to the provision or clause immediately preceding it. The rule is another aid to discovery of intent or meaning and is not inflexible and uniformly binding. Where the sense of the entire act requires that a qualifying word or phrase apply to several preceding or even succeeding sections, the word or phrase will not be restricted to its immediate antecedent.
Evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma.

Terri LeClercq, Doctrine of the Last Antecedent: The Mystifying Morass of Ambiguous Modifiers, 2 Legal Writing 81, 86-87 (1996) (footnote omitted; emphasis added) (quoting 1891 version of Sutherland on Statutory Construction).

Professor LeClercq goes on to say that “the Doctrine of the Last Antecedent is problematic: it contradicts other linguistic principles; it contradicts the historical use of the comma; and the doctrine, itself poorly drafted, does not provide a concrete conclusion to the problem of ambiguous modifiers.” LeClercq, supra, at 89. “Thus, rather than becoming ‘one more aid’ in interpretation as Sutherland hoped, the Doctrine of the Last Antecedent has, in its hundred-plus year history, created as much confusion and disagreement as the ambiguous modifier its drafter set out to clarify.” Id.

B.

The doctrine of the last antecedent has been described by the United States Supreme Court as a rule of statutory construction which will be applied when it makes sense to do so, and will be ignored when it does not. Relying on Sutherland, the Court has said the rule of the last antecedent is one in

which a limiting clause or phrase ... should ordinarily be read as modifying only the noun or phrase that it immediately follows- See 2A N. Singer, Sutherland on Statutory Construction § 47.33, p. 369 (6th rev. ed. 2000) (“Referential and qualifying words and phrases, where no contrary intention appears, refer solely to the last antecedent”). While this rule is not an absolute and can assuredly be overcome by other indicia of meaning, we have said that construing a statute in accord with the rule is “quite sensible as a matter of grammar.”

Barnhart v. Thomas, 540 U.S. 20, 26, 124 S.Ct. 376, 157 L.Ed.2d 333 (2003) (citation omitted; emphasis added). Compare id. (applying rule of the last antecedent) with Nobelman v. American Savings Bank, 508 U.S. 324, 330, 113 S.Ct. 2106, 124 L.Ed.2d 228 (1993) (declining to apply rule of last antecedent and instead adopting an interpretation which “is the more reasonable one[J”), and compare Miller v. Kase, 789 So.2d 1095, 1098-99 (Fla. 4th DCA 2001) (declining to apply doctrine of last antecedent) with Mallard v. Tele-Trip Co., 398 So.2d 969, 972 (Fla. 1st DCA 1981) (applying doctrine of last antecedent).

In this case the most relevant pronouncement is one by Justice Brandéis on behalf of the Supreme Court many years ago. “When several words are followed by a clause which is applicable as much to the first and other words as to the last, the natural construction of the language demands that the clause be read as applicable to all.” Porto Rico Ry. v. Mor, 253 U.S. 345, 348, 40 S.Ct. 516, 64 L.Ed. 944 (1920). The rule of the last antecedent has no application here.

VI.

The majority opinion relies on a statement contained in In Re: Amendments to Florida Rule of Criminal Procedure 8.172, 911 So.2d 763, 765 (Fla.2005). This amendment adds a warning to be given in accepting pleas of guilty or nolo contende-re, to warn the defendant regarding possible civil commitment consequences under the Jimmy Ryce Act. The majority reasons that this amendment to a procedural rule means that the Florida Supreme Court has already decided the substantive issue now before us.

The majority opinion’s reasoning is incorrect. The law is well established that in adopting procedural rules, the court does not adjudicate substantive rights. See Ramos v. State, 505 So.2d 418, 421 (Fla.1987).

The concurring opinion takes the position that we are compelled to adopt the reading contained in the majority opinion, failing which the statute would be unconstitutional. The parties have made no such argument in this case. The State has defended the trial court’s ruling on the basis of grammatical rules, not constitutional rules. If the constitutional issue were properly before us (which it is not), the Legislature is allowed to, and has a rational basis for, narrowing the group eligible for civil commitment if it wishes to do so.

The Legislature from the outset intended commitment under the Act to be targeted for a small group of dangerous individuals. See § 394.910, Fla. Stat. (2004). It is a legislative prerogative to decide how to define the group of eligible individuals.

VII.

In conclusion, the defendant is not eligible for commitment under the Act, and we should grant the petition for writ of prohibition. I concur in certifying the question of great public importance.

      . The State contests whether we have jurisdiction to decide this issue. We determine we have jurisdiction under Article V, section 4(b)(3) of the Florida Constitution. See Atkinson v. State, 791 So.2d 537, 538 (Fla. 2d DCA 2001), aff'd, 831 So.2d 172 (Fla.2002).

      . Ward was advised during his 1976 plea colloquy that if he went to trial and was found guilty on any of the four rape charges, he could receive the death penalty. In 1969, rape was a capital crime in Florida. In 1972, Florida’s death penalty law was declared unconstitutional. Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972). Accordingly, this court held that Ward was misadvised concerning the maximum penalty which could be imposed for the 1969 rapes and vacated his pleas. Ward, 433 So.2d. at 1222.

      .As originally adopted, this provision lacked the phrase "and sentenced to total confinement.” See § 916.45, Fla. Stat. (Supp.1998). In the 1999 session of the Florida legislature, it was inserted and the provision renumbered. See discussion, infra, at n. 5.

      . Not surprisingly, the intra-section parallelism and uniformity that has been found to exist in section 394.925 is mirrored by the similarly parallel and uniform action of other sections of the Act on the two jurisdictional clauses of section 394.925. See, e.g., § 394.913, Fla. Stat. (1999)(requiring notice of anticipated release to the state attorney and a multi-disciplinary team appointed by the Florida Department of Children and Families of all potential committees under the Act)(emphasis added); § 394.9135, Fla. Stat. (1999)(providing that in the event the release of a potential committee becomes "immediate for any reason" and notice has not been given, the potential committee must in either case be transferred briefly to an appropriate secure facility so that the state may evaluate the individual on an expedited basis and consider the filing of a Ryce Act proceeding).

      . As enacted in 1998, the Ryce Act appeared in chapter 916, which is entitled "Mentally Deficient and Mentally Ill Defendants.” See §§ 916.31-916.49, Fla. Stat. (Supp.1998); Ch. 98-64, §§ 2-23, at 446-55, Laws of Fla. The 1999 amendment moved the Ryce Act to chapter 394, which is entitled "Mental Health.” See Ch. 99-222, §§ 3-24, at 1373-87, Laws of Fla. The amendment to the scope of the Ryce Act was made at that time. Ch. 99-222, §§ 2-22, Laws of Fla.

      . Like the Ryce Act, the Baker Act also authorizes involuntary commitment of individuals with significant, recognized, diagnosable infirmities that make them a danger to themselves and the community. See §§ 394.451-394.4789, Fla. Stat. (2005). The Ryce Act is intended to serve and incapacitate individuals for whom a Baker Act commitment is inappropriate or, at a minimum, less than optimal. See § 394.910, Fla. Stat.

      . Because we are certifying this matter as one of great public importance, we note that there is a significant fact pattern not directly addressed by the dissent, namely one in which an individual (1) was convicted of the qualifying offense after January 1, 1999, (2) was incarcerated for that offense after January 1, 1999 and released, and (3) later incarcerated for a non-qualifying offense. We assume that the petitioner and the dissent would eschew Ryce Act jurisdiction over this individual while incarcerated for the second offense. See dissenting opinion, infra at 26-27, 33 n. 5. But for the timing, of course, this individual would have been a potential first clause committee. An affirmative answer to the certified question resolves this hypothetical case. It does not disturb us if, for example, the state elects to exercise its discretion against the commencement of a Ryce Act proceeding at one juncture and later makes a different discretionary decision. Discretionary calls are the daily fare of prosecutors. Nor, based upon our reading of the statute and its purpose, would we be disturbed if the state inadvertently missed its chance to commence a Ryce Act proceeding against such a hypothetical defendant during the first incarceration but elected to later proceed. We consider all of this to be within the contemplation of the Ryce Act as amended and not legally prohibited.

      . The majority opinion correctly states that a petition for writ of prohibition is an available remedy where the defendant does not qualify for civil commitment under the Act as a matter of law. See majority opinion at 2 n. 1; Atkinson v. State, 791 So.2d 537, 538 (Fla. 2d DCA 2001), aff'd, 831 So.2d 172 (Fla.2002).

      . The amendment at issue here stated:
      394,925 916.45 Applicability of act. — This part applies Sest-ians 916.34-94-M9 apply to all persons currently in custody who have been convicted of a sexually violent offense, as that term is defined in s^ 394.912(9) s^-916.32(8)t as well as to all persons convicted of a sexually violent offense and sentenced to total confinement in the future.
      Ch. 99-222, § 20, Laws of Fla.

      . The current version of Sutherland's doctrine appears in 2A Norman J. Singer, Statutes and Statutory Construction § 47:33, at 369-73 (6th ed.2000).

      . Further:
      Unfortunately for those who need to depend on it, the Doctrine of the Last Antecedent itself calls for interpretation because Sutherland begins with what seems the fallback rule of statutory interpretation and concludes with his specific point. He begins with a qualifier, that interpreters should use the Doctrine of the Last Antecedent “where no contrary intention appears.” Appears where? Within the phrase or within the document as a whole? In the notes of a committee that wrote the original rule? If the language offers no “contrary intention,” then the meaning is already "plain.” If the contrary intent shows up within the sentence itself, then there is no need for the rule. And legislative intent or the drafter's intent is usually in question to begin with, so that search rarely clarifies the sentence in question. But Sutherland's fifth sentence "where the sense of the entire act requires ...” implies that the reader has already investigated the phrase within the context of the entire act. Thus the Sutherland rule is a jumble. He probably meant to emphasize intent, and the sense of the act as a whole, over the announced doctrine.

        Id. at 92-93.

      . One other aspect of the majority interpretation bears mention. The Act required review of all offenders who had a qualifying conviction and were in custody on January 1, 1999. In some instances the State reviewed an offender and decided not to file civil commitment proceedings. Such offenders were released upon expiration of the criminal sentence. If any such offender were reincarcer-ated on a nonsexual offense after January 1, 1999, then under the majority’s analysis, that offender must once again be evaluated under the Act for possible civil commitment — even though that offender has already been rejected as a candidate for civil commitment. It is illogical to suppose that the Legislature intended this result.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald O. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 5D05-4254.
    District Court of Appeal of Florida, Fifth District.
    Aug. 18, 2006.
    Donald O. Williams, Bushnell, pro se.
    No Appearance for Respondent.
   PER CURIAM.

Because of his ten previous unsuccessful collateral appearances here, when Petitioner filed his eleventh pleading, a mandamus petition, this court issued a show cause order pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999). This court, sua sponte, withdraws its March 28, and April 6, 2006, orders to the extent that Williams’ Response is accepted as timely filed.

We now deny Williams’ mandamus petition on the merits and hold that he is barred from further pro se filings in this court on the basis that his present petition is frivolous and an abuse of process. See Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995) (“Enough is enough.”); see also Glasco v. State, 914 So.2d 512, 512 (Fla. 5th DCA 2005) (recognizing frivolous collateral appeals clog the courts and hurt meritorious appeals by inviting sweeping rulings and by engendering judicial impatience with all defendants); Britt v. State, 931 So.2d 209, 210 (Fla. 5th DCA 2006) (finding that defendant’s pro se filings had become frivolous, an abuse of process, and a waste of the taxpayers’ money).

Accordingly, in order to conserve judicial resources, we prohibit Williams from filing with this Court any further pro se pleadings concerning Fifth Judicial Circuit Court Case No. 2000-2130-CF. The Clerk of this Court is directed not to accept any further pro se filings concerning this case from Petitioner. Any more pleadings regarding this case will be summarily rejected by the Clerk, unless they are filed by a member in good standing of The Florida Bar. The Clerk is further directed to forward a certified copy of this opinion to the appropriate institution for consideration of disciplinary procedures. See § 944.279(1), Fla. Stat. (2005); Simpkins v. State, 909 So.2d 427, 428 (Fla. 5th DCA2005).

PETITION DENIED; Future Pro Se Filings PROHIBITED; Certified Opinion FORWARDED to Department of Corrections.

GRIFFIN, MONACO, and TORPY JJ., concur.


author: STRINGER, Judge.

text:
    Cameron LANIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-1786.
    District Court of Appeal of Florida, Second District.
    Aug. 18, 2006.

      James Marion Moorman, Public Defender, and Heather M. Gray, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tiffany Gatesh Fearing, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Cameron Lanier challenges his convictions for driving without a license, possession of cocaine, and resisting an officer without violence. Because we hold that an officer can legally request identification from even an “innocent” driver of a motor vehicle during the course of a lawful stop of the vehicle, we affirm. We also affirm the revocation of Lanier’s probation; however, we remand to the trial court for it to enter an amended order of revocation striking the findings that Lanier violated conditions 1, 7, and 47.

Facts

On September 25, 2003, Polk County Sheriffs deputies obtained information that an individual with outstanding warrants was riding as a passenger in a gray Ford Contour bearing a specific license plate number. During routine traffic patrol, Officer Ryan Shea located the Ford, and after confirming that the passenger in the car was the individual being sought, he stopped the Ford. Shea testified that the driver of the Ford had not committed any traffic infractions and pulled over immediately when Shea activated his lights and siren.

After stopping the car, Shea went immediately to the passenger door, ordered the passenger out of the car, and arrested the passenger on the outstanding warrant. After the arrest was made but while the investigation relating to the passenger’s arrest was still in progress, Shea approached Lanier, who was driving the car, and asked Lanier for identification. When Lanier produced a State of Florida identification card, Shea took the card from him and ordered him to stay in the car while Shea “ran his identification.” As Shea testified, “I told him to stay in the seat and we were just going to run his name and make sure that he didn’t have any outstanding warrants. Make sure that his license was good and then he’d be on his way.” Shea admitted that at that point he had not seen Lanier commit any traffic infractions and that the only reason for stopping the vehicle was to effect the arrest of the passenger on the pre-existing warrant.

While another officer began running La-nier’s identification through the computer system, Shea remained near the driver’s side of Lanier’s car. At some point during the wait for the computer check, Lanier got out of the car. Shea told Lanier to get back in the car, but Lanier refused. Lanier then “shoved” his left hand into the waistband of his pants. Shea ordered La-nier to remove his hand from his pants, but Lanier did not comply. Shea then grabbed Lanier’s arm, wrestled him to the ground, and handcuffed him. While a pat-down search of Lanier did not reveal any contraband, a subsequent search of the area of the struggle revealed a baggie that contained cocaine. These events ultimately gave rise to the charges of driving without a license, possession of cocaine, and resisting an officer without violence in case number CF03-006501.

At the time of his arrest, Lanier was on probation in case numbers CF01-08037A and CF02-02806A. In response to this new arrest, the Department of Corrections filed an affidavit of violation of probation. In addition to the allegations based on the new law violations, the affidavit alleged that Lanier had made a false report to his probation officer by claiming that he was employed when he was not. The affidavit also alleged that Lanier had made a second false report when he reported that he was enrolled in and attending “NCTI” school when he was not.

Lanier subsequently filed a motion to suppress the evidence that resulted from the stop by Shea, contending that it resulted from an illegal detention. For reasons not entirely clear from the record, the trial court proceeded with the revocation hearing before entertaining arguments on Lanier’s motion to suppress. At the revocation hearing, Lanier objected to the proceeding, arguing that the trial court should consider his motion to suppress in case number CF03-006501 before considering the revocation of his probation. The trial court overruled this objection. Shea then testified to the facts of Lanier’s arrest over Lanier’s objection that such evidence was inadmissible because it was the product of an illegal detention. In addition, Lanier’s probation officer, Ricky Brooks, testified to the alleged false reports made by Lanier. Brooks testified that Lanier had told him that he was working for a firm called Labor Ready. Brooks testified that he called Labor Ready and was informed that Lanier had not worked there since 2002. Brooks also testified that he had contacted the school coordinator for the NCTI school, and she told him that Lanier had never enrolled and was not attending the school. Lanier objected to all of this testimony on the grounds that it was hearsay.

Despite Lanier’s objections, at the conclusion of the revocation hearing, the trial court found that Lanier had violated his probation by committing new crimes (condition 4) and by providing false reports to his probation officer concerning his employment and his schooling (conditions 1, 7, and 47). The trial court revoked Lanier’s probation and sentenced him to ten years in prison in case CF01-08037A and to a concurrent five years in prison in case number CF02-02806A.

Shortly after the revocation hearing, the trial court held a hearing on Lanier’s motion to suppress the evidence against him in case number CF03-006501. Officer Shea again testified to the facts surrounding Lanier’s arrest. After hearing this testimony, the trial court denied Lanier’s motion, stating that it believed that Shea could validly request Lanier’s driver’s license because he had been driving at the time of a valid traffic stop. Lanier then pleaded guilty to the charges while specifically reserving his right to appeal the denial of his motion to suppress, which the State conceded was dispositive. The trial court then sentenced Lanier to five years in prison, to run concurrently with the sentences resulting from the revocation of probation.

Validity of Detention

The disposition of Lanier’s motion to suppress is controlled by whether Shea had the authority to request identification from Lanier, the innocent driver of the Ford, when the sole purpose of the stop of Lanier’s vehicle was to effect the passenger’s arrest. We do agree with La-nier that an officer may not continue to detain a driver following a traffic stop once the purpose for the stop has been satisfied and removed. State v. Diaz, 850 So.2d 435, 437 (Fla.2003); Blackwelder v. State, 853 So.2d 479 (Fla. 2d DCA 2003); State v. Klein, 736 So.2d 9 (Fla. 4th DCA 1998). However, when a vehicle has been lawfully stopped and the investigation relating to the stop has not yet been completed, it is not a violation of the Fourth Amendment for an officer to ask the driver to produce identification. The supreme court has held that officers may lawfully request identification from drivers during the course of consensual encounters and may hold the identification long enough to cheek the validity of the identification and run a warrants check. See, e.g., State v. Baez, 894 So.2d 115, 117 (Fla.2004); Lightbourne v. State, 438 So.2d 380, 388 (Fla.1983). Certainly, if such a request is permissible during the course of a consensual encounter, a similar request during the course of a lawful stop and detention does not rise to the level of a constitutionally cognizable infringement.

Here, there is no dispute that Lanier’s vehicle was lawfully stopped. There was also testimony at the hearing on the motion to suppress that the purpose for the stop — the arrest of Lanier’s passenger — had not been completed and that the investigation relating to the arrest was ongoing. Because the car was lawfully stopped and the investigation arising from the reason for the stop had not been completed, Shea could lawfully ask Lanier to produce identification. In addition, pursuant to Baez, Shea could retain possession of the identification and run a check of its validity and a warrants check. Moreover, when Lanier produced only an identification card rather than a driver’s license, reasonable suspicion arose for Shea to believe that Lanier was driving without a proper license. See § 322.15(1), Fla. Stat. (2003) (requiring every licensee to have his or her driver’s license in immediate possession while operating a motor vehicle and to produce it upon demand). Accordingly, at that point, Shea could validly detain Lanier while he investigated the status of Lanier’s driver’s license. See § 322.34(2) (making it a criminal offense for a driver to operate a motor vehicle knowing that his or her license has been suspended, revoked, or canceled). Thus, because the evidence against Lanier was obtained during the course of a lawful detention, the trial court properly denied Lanier’s motion to suppress, and his convictions for the offenses arising out of the stop are affirmed.

Revocation of Probation

As to the revocation of Lanier’s probation, we agree with Lanier that evidence discovered during an unlawful detention and search is not admissible during a hearing to revoke probation. State v. Scarlet, 800 So.2d 220, 221 (Fla.2001) (quoting Scarlet v. State, 766 So.2d 1110, 1111 (Fla. 3d DCA 2000)); Williams v. State, 791 So.2d 37, 38 (Fla. 2d DCA 2001). However, because we have found that La-nier’s detention was lawful, the evidence concerning the new law offenses was properly considered by the court and supports the revocation of Lanier’s probation based on a violation of condition 4.

However, the only evidence supporting the violations of conditions 1, 7, and 47 was hearsay. Although it is true that hearsay evidence is admissible at a revocation hearing, revocation may not be based solely on hearsay evidence. Thompson v. State, 890 So.2d 382, 383 (Fla. 2d DCA 2004); Clemons v. State, 388 So.2d 639, 640 (Fla. 2d DCA 1980). In Thompson, this court held that testimony from Thompson’s probation officer as to what the officer was told by “someone” at a drug treatment program about Thompson’s attendance was pure hearsay that could not support the revocation of Thompson’s probation. 890 So.2d at 383. Similarly, in Clemons, this court noted that the only evidence of Clemons’ alleged violation was “the hearsay testimony of the probation supervisor about what appellant’s employer had said in a telephone conversation.” 388 So.2d at 640. This court held that this type of testimony, which was pure hearsay, was insufficient to support the revocation of Clemons’ probation. Id.

Here, as in Thompson and Clemons, the only evidence of Lanier’s alleged violations concerning his employment and schooling was the testimony of his probation officer concerning what Lanier’s employer allegedly said in a telephone conversation about his employment and what a school coordinator allegedly said in a telephone conversation about his attendance. As hearsay, this testimony was insufficient, standing alone, to support a finding that Lanier violated these conditions of his probation. Because the State presented no other testimony concerning these alleged violations, the trial court erred in revoking Lanier’s probation based on the alleged violations of conditions 1, 7, and 47. Accordingly, while we affirm the revocation of Lanier’s probation based on the violation of condition 4, we must remand for entry of a corrected revocation order striking the findings as to conditions 1, 7, and 47.

Affirmed and remanded with instructions.

CASANUEVA and SILBERMAN, JJ., Concur.


text:
    Fred L. BROOKS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2548.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.

      Fred L. Brooks, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied as untimely. Fla. R.App. P. 9.141(c)(4)(A). Petitioner’s motion for appointment of counsel is denied as moot.

DAVIS, POLSTON, and HAWKES, JJ., concur.


text:
    Domingo P. FIGUEROA, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-2732.
    District Court of Appeal of Florida, First District.
    Aug. 22, 2006.
    Domingo P. Figueroa, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

Petitioner seeks a writ of mandamus to compel the Circuit Court for Leon County to issue a ruling on his motion to dismiss court imposed lien. For the reasons set forth below, we deny relief.

The case originated in the circuit court when petitioner filed a petition for writ of mandamus to challenge a disciplinary sanction imposed by the Florida Department of Corrections. The court found petitioner to be indigent but imposed a lien against his trust account to recover the filing fees and costs associated with the circuit court proceeding. Petitioner filed the motion to dismiss the lien which is the subject of the instant petition. The circuit court has denied the mandamus petition on the merits but, according to petitioner, no written order has issued on the motion to dismiss the lien.

Petitioner fails to recognize that when a final order has issued and relief sought by motion has not been affirmatively granted, the motion has been denied. Griffin v. Workman, 73 So.2d 844 (Fla. 1954); Kaplan v. Morse, 870 So.2d 934 (Fla. 5th DCA 2004); Quinn v. Millard, 358 So.2d 1378 (Fla. 3d DCA 1978). In the instant case, review of the order imposing lien can be obtained by raising it as an issue in a challenge to denial of the underlying mandamus petition by the circuit court in accordance with Sheley v. Florida Parole Comm’n, 720 So.2d 216 (Fla.1998). See Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

Petitioner has failed to identify any ministerial duty which the circuit court has failed to perform and, accordingly, the petition for writ of mandamus is denied.

PETITION DENIED.

BENTON, PADOVANO, and LEWIS, JJ., concur.


text:
    Vincent Gregory DePIRRO, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-3814.
    District Court of Appeal of Florida, First District.
    Aug. 23, 2006.
    Vincent Gregory DePirro, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PETITION DENIED.

BARFIELD, PADOVANO, and HAWKES, JJ., Concur.


author: BROWNING, J.

text:
    Johnnie C. ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3046.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.

      Nancy A. Daniels, Public Defender; and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Johnnie C. Robinson (Appellant) was charged by information with the manufacture of cocaine (Count One), possession of cocaine with intent to sell or deliver (Count Two), maintaining a place where controlled substances are used (Count Three), and possession of drug paraphernalia (Count Four). At the close of the State’s case, defense counsel moved for a judgment of acquittal (JOA) on all counts. The trial court granted a JOA for Counts One and Three, dropped the “intent to sell” element of Count Two, and denied the motion on Count Four. Appellant contends that the trial court erred in sending to the jury the charges of possession of cocaine and possession of drug paraphernalia. Because the State made a prima facie case on the counts that were sent to the jury, the trial court ruled correctly on the motion for JOA. Accordingly, we affirm Appellant’s conviction and sentence.

We review de novo the trial court’s denial of a motion for JOA, to determine solely whether the evidence is legally sufficient. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002); Jones v. State, 790 So.2d 1194, 1196 (Fla. 1st DCA 2001) (en banc). Given the lack of evidence that Appellant actually possessed the cocaine and the drug paraphernalia, the State had to prove constructive possession to sustain the convictions. See Lester v. State, 891 So.2d 1219, 1220 (Fla. 2d DCA 2005). “Proof based entirely on circumstantial evidence can be sufficient to sustain a conviction in Florida.” Orme v. State, 677 So.2d 258, 261 (Fla.1996). When a case is based solely on circumstantial evidence, a special standard of review of the sufficiency of the evidence applies. The evidence must be inconsistent with any reasonable hypothesis of innocence for the conviction to be sustained. See State v. Law, 559 So.2d 187, 188 (Fla.1989); P.M.M. v. State, 884 So.2d 418, 419-20 (Fla. 2d DCA 2004). However, the State is not required to rebut conclusively every possible variation of events that could be inferred from the evidence, but only to introduce competent evidence that is inconsistent with the defendant’s theory of events. See Law, 559 So.2d at 189; State v. Allen, 335 So.2d 823, 826 (Fla.1976). Once the State introduces such evidence, it is the jury’s duty to determine whether the evidence is sufficient to exclude every reasonable hypothesis of innocence beyond a reasonable doubt. See Law, 559 So.2d at 189. The legal test for determining whether a JOA should be granted is “whether after all conflicts in the evidence and all reasonable inferences therefrom have been resolved in favor of the verdict on appeal, there is substantial, competent evidence to support the verdict and judgment.” Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981). The Fourth District Court has stated the general rule governing constructive possession:

Proof of guilt based on a constructive possession theory consists of three basic elements:
(1) The accused must have dominion and control over the contraband.
(2) The accused must have knowledge that the contraband is within his presence, and;
(3) The accused must have knowledge of the illicit nature of the contraband.

Wale v. State, 397 So.2d 738, 739 (Fla. 4th DCA 1981); see Jean v. State, 638 So.2d 995, 996 (Fla. 4th DCA 1994); Julian v. State, 545 So.2d 347, 348 (Fla. 1st DCA 1989). “[E]ach of these elements may be proved by circumstantial evidence.” Wale, 397 So.2d at 739. The following rule governs cases in which the location of the drugs and paraphernalia is not in the defendant’s exclusive possession, but is jointly possessed:

If the place in which the contraband is found is not in the exclusive possession of the accused, but only in his joint possession, his knowledge of the presence of the contraband on the premises and his ability to maintain control over it will not be inferred, but must be established by extra proof. Such proof may consist either of evidence establishing that the accused had actual knowledge of the presence of the contraband in the place where it is found, or circumstantial evidence from which a jury might properly infer that the accused had knowledge of the presence of the contraband.

Id. at 740; see State v. Giralt, 871 So.2d 983 (Fla. 3d DCA 2004); Julian, 545 So.2d at 348.

Viewing the evidence and all reasonable inferences therefrom in the light most favorable to the State, in accordance with Lynch v. State, 293 So.2d 44, 45 (Fla. 1974), we conclude that the State presented evidence to support every element of possession of cocaine and possession of drug paraphernalia. Accordingly, the trial court correctly denied the motion for JO A as to the counts in question.

According to Investigator Sam Gereg, of the Vice and Narcotics Unit of the Tallahassee Police Department, a search warrant was served at a very small house at 1809 West Pensacola Street on July 2, 2004. No one was at home when the warrant was served. Richard Singletary testified that he owned this rental property; he estimated the size of the home to be 800-900 square feet. The house has two bedrooms (designated northwest and southwest by the authorities for purposes of location and description), a kitchen, and a living room. At the time of the search, Charles Reddick was named on the lease of the home and had been a tenant for about one and one-half years. Appellant’s name was not on the lease, and the owner had no rental agreement with him. The owner testified that Appellant was the only roommate about whom he knew, but the owner could not say for certain that Appellant was a roommate. However, the owner frequently saw Appellant coming and going at the house, as many times as two or three times a week over a six- to eight-week period when the owner was working on his next-door rental property. It was not unusual for the owner to allow roommates who were not named on the rental agreement; in fact, he allowed it “all the time.” The owner testified that Appellant sometimes had brought the rent payment to him on Mr. Reddick’s behalf and had received a receipt made out to Mr. Red-dick. The owner testified that after he was asked to change the carpeting in the house, he went inside the home and Appellant helped him with this project. The owner had never seen drugs or drug paraphernalia in the home.

For purposes of resolving the issue on appeal, we focus on' the northwest bedroom in the home. Investigator Gereg testified the northwest bedroom had a small dresser, wall shelving, a very small futon-type single bed, and a closet. This bedroom was fully decorated, appeared fully furnished and occupied, and had Coca-Cola souvenirs and other mementos on the shelves. Everything observed by the investigator during the search indicated that only one person, Appellant, resided in that bedroom. A shoebox was filled with photographs that consistently included a gentleman whom the witness identified as Appellant. Various items of paperwork were found on the dresser just inside the bedroom door and on the shelves and by the closet. In that bedroom, every piece of paper that had a name on it had Appellant’s first name or his full name, and no other paperwork was found with anyone else’s name on it. The paperwork included an envelope addressed to Appellant, and a second one (postmarked late April 2004) addressed to “Shamaka and Johnny,” although both envelopes listed a different address from that of the home searched. Investigator Gereg testified from personal knowledge that the envelope listing Appellant’s name alone had an- address that had been Appellant’s mother’s address for seven years. The investigator found Western Union money transfer forms listing Appellant as the “Sender.” A deposit form listed “Johnny” as the first name, and a handwritten note with a date of May 2, 2004, was sent to “Johnny.” A civil writ of bodily attachment from a court addressed to Appellant (at a different address from the searched home) indicated his child-support arrearage. Three U.S. Postal Service receipts found in the bedroom were dated June 8, 2004, i.e., less than a month before the search warrant was served.

Investigator Gereg testified that the small, waist-high dresser was in the northwest bedroom just inside the door. The top drawer had underwear in it; another drawer had T-shirts. The drawers did not contain dividers to suggest that two people were sharing the space. The small closet had a full wardrobe, and all the shoes and clothes appeared to be of one consistent size. The witness opined that the room appeared to be fully occupied.

■ Investigator Gereg testified that a plastic bag found in the top drawer of the dresser in the northwest bedroom contained 8.72 grams of crack cocaine. Another 6.54 grams of powdered cocaine was found in the same dresser. The photographic evidence indicates one of these plastic baggies was found wrapped in what appears to be a pair of men’s boxer shorts. A 302-gram bag of white, powdery “Come Back Incense” was found in a black shopping bag on a shelf in that bedroom. Numerous small plastic bags were found in the third drawer and on top of the dresser. Having been qualified as an expert in the field of the sale of narcotics and possession of drug paraphernalia, Investigator Gereg opined that white, powdery, and odorless incense of the kind found in the northwest bedroom is frequently sold for use as a cutting agent for cocaine. That is, cocaine is an expensive substance, this type of incense is much cheaper, and the substances are mixed to allow the resulting lower-quality cocaine, of an enhanced volume, to be sold for a much greater profit. The witness opined that this kind of odorless incense, as it was specifically labeled and packaged, has no other use than as a cutting agent for cocaine. “Come back” is a term used when powdered cocaine is cooked into crack cocaine. Investigator Christopher Corbitt, of the Tallahassee Police Department, testified consistently with Investigator Gereg regarding the evidence recovered from the northwest bedroom and the kitchen.

Jeff Fennell, a former Tallahassee Police Department forensic specialist who was admitted as an expert in fingerprint analysis and comparison, testified that among the numerous small plastic baggies found in the dresser, Appellant’s fingerprint was found on one of them. His fingerprints appeared also on a baggie that was found in a cooler. Neither of these two baggies contained illegal contraband.

According to Investigator Gereg, the other bedroom, the southwest one, had paperwork and items addressed only to the named lease tenant, Mr. Reddick. That second bedroom had a small dresser. The clothing found in that bedroom indicated the room was occupied by only one person, Mr. Reddick. Plastic baggies were found in the southwest bedroom too, as was a small digital scale of the type commonly used to measure out sale-size quantities of illegal drugs.

Atop some cabinets in the kitchen was a large glass measuring cup with whitish cocaine residue on the bottom, which Investigator Gereg believed was used to cook crack cocaine. Numerous small plastic baggies were found throughout the kitchen. On a shelf directly behind the stove, the investigators found a beverage can of Mountain Dew soda, the top of which screws off, disclosing a hidden container of the type frequently used to conceal illegal narcotics. A package of incense was found on the kitchen counter.

The State’s evidence is sufficient for the jury to have found, beyond a reasonable doubt, that Appellant exclusively and regularly occupied the northwest bedroom within the time period shortly before the home was searched; that Appellant had dominion and control over the contraband found among his personal items in the northwest bedroom; that he knew the contraband was in his presence and was illicit; and that someone else, apparently Mr. Reddick, occupied the other bedroom. See Thames v. State, 366 So.2d 1261 (Fla. 1st DCA 1979).

Challenging the denial of his motion for JOA on Counts Two and Four, Appellant relies on several decisions that are materially distinguishable on their facts. See, e.g., State v. Lopez, 908 So.2d 484 (Fla. 4th DCA 2005) (affirming entry of JOA after jury verdict finding defendant guilty of trafficking in drug MDMA, because evidence that passenger, who was purported owner and supplier of MDMA, had thrown MDMA out of defendant’s car was legally insufficient to establish that defendant had dominion and control and was in actual or constructive possession of the drug); State v. Snyder, 635 So.2d 1057 (Fla. 2d DCA 1994) (affirming order dismissing information charging defendant with possession of methamphetamine, where defendant’s pri- or knowledge of methamphetamine delivery to co-defendant and defendant’s intent to try some of drug while in car with co-defendant, had police not intervened and interrupted co-defendant before he gave defendant a sample of drug, were insufficient to support charge).

A recitation of the facts in the three remaining decisions cited by Appellant demonstrates why they are materially distinguishable and do not support reversal in the instant case. In Thompson v. State, 375 So.2d 633 (Fla. 4th DCA 1979), police officers executing a search warrant on a residence found Thompson and two other men there and detained them all in the living room while the home was searched. See id. at 634. Three kinds of controlled substances were found hidden in the southeast bedroom, and marijuana was found hidden under the kitchen sink. Thompson, the only one of the men who was prosecuted as a result of this search, was charged with possession of cocaine (found hidden in a bag in a shoe in the bedroom closet), marijuana (found in a toolbox in the bedroom), and barbiturates (found uncovered in a dresser drawer in the bedroom). The State argued that if it proved Thompson had occupied the bedroom where the drugs were found, the evidence would support his conviction for constructive possession of the drugs found in the room. To prove the southeast bedroom was Thompson’s, the State relied on circumstantial evidence. After the search, but before Thompson was to be transported to the station for booking, he was given the opportunity to clothe himself and did so by walking into the bedroom in question and putting on clothing from the closet where the cocaine had been found. Electric bills and a pool receipt bearing Thompson’s name and the address of the residence being searched were found in that bedroom. Thompson’s car was parked in the garage at the time of the search. An officer had seen Thompson at this residence earlier on the day of the search. After a bench trial, Thompson was found guilty as charged. See id. The Fourth District Court noted that, even assuming that Thompson occupied the southeast bedroom, it found the evidence to be “equivocal” regarding whether another person also occupied that room. The officers were unsure about which articles of clothing Thompson had removed from the closet, and the best case for the prosecution was that Thompson had taken a pair of shoes and a shirt. Although the shoes and shirt apparently fit Thompson, he was small in stature and wore shoes and clothing in sizes usually worn by women. The relevance of these facts is that the testimony indicated the shoes and shirt were of a style and type commonly worn by women and men, and a lease to the residence was found in the southeast bedroom to a' lessee named Barbara, which the court noted is typically a woman’s name. Proffered testimony of one of the other men who were arrested with Thompson indicated that the shirt Thompson put on belonged to the witness, not to Thompson. Given the evidence that Thompson was not the exclusive occupant of the southeast bedroom, the district court concluded that the trial court had erred in denying the motion for JO A at the end of the State’s case. The convictions were reversed and remanded with directions to discharge Thompson. See id. at 637. The panel reasoned that “[t]o accept occupancy, alone, as proof of possession of drugs would mean the potential to possess drugs illegally would be construed to be as much a crime as physically possessing them.” Id. at 635. Unlike the equivocal evidence in Thompson, the instant evidence indicated that two different individuals — Appellant and Reddick — kept their personal belongings separated and exclusively occupied the northwest bedroom and the southwest bedroom, respectively.

In Lester v. State, 891 So.2d 1219 (Fla. 2d DCA 2005), the defendant was driving a car with a woman in the front passenger seat. Lester drove to a location in St. Petersburg that is well-known for drug activity. Neither he nor his passenger knew that a police officer was there watching a man selling narcotics to people in passing cars. The officer saw Lester’s car approach and observed an exchange between the passenger and the seller. The seller handed a small object to the passenger, who gave back currency. The officer observed no suspicious activity by Lester. See id. A radioed report from the officer resulted in the stopping of Lester’s vehicle within three blocks of the exchange. An officer on the passenger’s side of the car saw three small bulges in the seated woman’s sock. He testified that his years of experience informed him that the bulges were crack cocaine. After the passenger consented to the officer’s request to search her, the officer removed the cocaine. The passenger handed the officer two crack pipes she had concealed in her pants. See id. at 1219-20. With Lester’s consent, an officer searched him and his automobile. No drugs or other contraband was found, but the glove compartment contained a new Brillo pad, which Lester admitted having purchased. The officer testified that such pads are often used in crack pipes as a filter and, in fact, both pipes seized from the passenger contained pieces of Brillo. After initially denying any knowledge of his passenger’s intent to buy drugs or the involvement of any drugs in the transaction, Lester ultimately admitted that he had smoked crack on the previous day, that his passenger had just received a check and was going to buy crack cocaine, and that Lester intended to smoke some of it. Lester was charged with possession of cocaine. His motion for a JOA was denied. Given the lack of evidence of Lester’s actual possession of the crack cocaine, the Second District Court noted the State had to prove Lester’s constructive possession to sustain his conviction for possession. See id. at 1220. Although the evidence established that Lester knew of the presence of the cocaine and its illicit nature, and that he intended to partake in it, no evidence demonstrated his dominion and control over the drug. That is, no evidence showed that Lester had, or could take, actual possession of the crack or that he could compel his passenger to share the cocaine with him. Although Lester intended to use the crack, the police stopped the vehicle before Lester ever acquired possession or control over the drug. Because the State failed to demonstrate Lester’s constructive possession of the crack cocaine, the district court reversed and remanded with instructions to discharge him. See id. at 1221. In contrast, the cocaine in the instant ease was found in the northwest bedroom, which contained numerous personal belongings connected exclusively to Appellant, not to Mr. Red-dick, whose personal belongings were found in the southwest bedroom.

Finally, in P.M.M., 884 So.2d at 418, the high-school resource officer testified that the assistant principal had searched P.M.M.’s backpack and discovered a small plastic bag of marijuana. The baggie was not fingerprinted. The resource officer did not know where the backpack had been before the search. See id. at 419. P.M.M. testified that the assistant principal told her that an anonymous source reported she had something in her backpack that she should not have. P.M.M. agreed to a search of her backpack, thinking that nothing was inside it. See id. P.M.M. denied knowing the marijuana was in her backpack, and she denied it was hers. See id. at 419-20. She testified that on the day of her arrest, and before the search, she had left the backpack unattended on the classroom floor for over an hour during her cooking class, while she worked at a stove 20 to 25 feet away; and unattended on the lunchroom table for 10-15 minutes while she waited in the lunch line. See id. at 419. The State presented no direct evidence that P.M.M. knew of the presence of the contraband. The testimony that others had access to the backpack was unrebutted and unimpeached, and no evidence demonstrated that P.M.M. knew the marijuana was in her backpack (other than the evidence that it was found in her backpack). See id. at 420. Where the circumstantial evidence failed to rebut P.M.M.’s reasonable hypothesis of innocence, the order withholding adjudication and placing her on probation for possession of marijuana was reversed. See id. at 419-20. In contrast, in the case at bar, the drugs and drug paraphernalia were found in Appellant’s own bedroom in a private residence.

We AFFIRM Appellant’s judgment and sentence.

WOLF and VAN NORTWICK, JJ., concur.


text:
    Andreas OBOJES, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-2348.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.

      Andreas Obojes, pro se, Appellant.
    Charlie Crist, Attorney General, and Rosa Carson, General Counsel, Department of Corrections, Tallahassee, for Ap-pellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of July 3, 2006, this appeal is hereby DISMISSED. The order on appeal, which denied a challenge to two inmate disciplinary reports but issued a show cause order as to a third challenged disciplinary report, has not completed the judicial labor below. Therefore, this order is not final, see generally Caufield, v. Cantele, 837 So.2d 371, 375 (Fla.2002) (reaffirming that a “final judgment is one which ends the litigation between the parties and disposes of all issues involved such that no further action by the court will be necessary”), and this Court lacks appellate jurisdiction to review it at this time. See Fla. R.App. P. 9.030(b)(1). This dismissal is without prejudice to the appellant’s right to seek review upon final disposition of the proceedings below.

WOLF, VAN NORTWICK and BROWNING, JJ., concur.


text:
    Edward D. JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0722.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm Appellant’s judgment and sentence but remand for correction of a scrivener’s error contained in the written judgment and sentence. See Williams v. State, 930 So.2d 851 (Fla. 2d DCA 2006) (remanding for correction of scrivener’s error in the written sentence); Diaz v. State, 910 So.2d 894 (Fla. 1st DCA 2005) (remanding for correction of scrivener’s error in the judgment). Appellant filed a rule 3.800(b)(2) motion seeking to have the sentencing documents corrected to reflect that the habitual felony offender classification applies only to Count I. While the oral pronouncement made clear that the habitual offender classification applies only to Count I, the written judgment and sentence does not so specify. Therefore, the judgment and sentence must be corrected to reflect that the habitual offender sentence imposed by the court applies only to Count I, and not to Counts II and IV. Because this is a ministerial act, Jackson’s presence is not required.

AFFIRMED and REMANDED with directions.

WOLF, LEWIS and THOMAS, JJ., concur.


author: PER CURIAM. LEWIS, J.,

text:
    Kylie C. DOYLE, Appellant, v. Jason Leigh OWENS, Appellee.
    No. 1D05-5768.
    District Court of Appeal of Florida, First District.
    Aug. 24, 2006.
    E. Jane Brehany, Pensacola, for Appellant.
    Caryn A. Van Matre, Pensacola, for Ap-pellee.
   PER CURIAM.

Appellant and Appellee are the unmarried parents of a six year old child. Appellant was awarded sole parental responsibility. Subsequently, Appellee sought to have the child’s surname changed to his own, and to alter the backup care provisions. The trial court entered an order granting both motions. Appellant argues the trial court abused its discretion in both of its rulings. We affirm.

On appeal, it is Appellant’s burden to show the trial court abused its discretion by ordering the name change and modifying the backup care provisions. Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987); Hastings v. Rigsbee, 875 So.2d 772 (Fla. 2d DCA 2004).

Here, the record reflects the trial court considered factors in addition to paternity when ordering the name change. Because reasonable people could differ under the circumstances present here, the trial court cannot be said to have abused its discretion. We affirm the alteration of the backup care provisions without discussion. The trial court’s order is AFFIRMED.

ALLEN and HAWKES, JJ. concur.

LEWIS, J., dissents with written opinion.

LEWIS, J.,

dissenting.

I respectfully dissent. Although I agree with the majority that the trial court did not abuse its discretion in modifying the backup care provisions of the shared parental responsibility statement, the trial court did, in my opinion, abuse its discretion in ordering that the child’s surname be changed.

Pursuant to section 382.013(3)(c), Florida Statutes (2004), if a child’s mother is not married at the time of the child’s birth, the parent who will have custody of the child shall select the child’s given name and surname. As we have explained, “ ‘[T]o change the name of a minor ... is a serious matter, and such action may be taken only where the record affirmatively shows that such change is required for the welfare of the minor.’ ” Collinsworth v. O'Connell, 508 So.2d 744, 747 (Fla. 1st DCA 1987) (citation omitted). The proponent of the name change has the burden of proof. Id. A trial court’s discretion with respect to a name change must be “exercised on the basis of some evidence other than the parties’ conclusory assertions appearing in the record.” Id. Absent evidence that a name change is required for the welfare of the child, the issue should be resolved against the proponent of the name change. Id.

In the instant case, the record is devoid of any evidence that the name change is required for the child’s welfare. What is clear from the record, and from appellee’s arguments on appeal, is that the primary reason appellee desmes the name change is so the child’s name reflects the connection to both parents. However, such a reason is not sufficient to order a name change. See Girten v. Andreu, 698 So.2d 886, 888 (Fla. 3d DCA 1997) (holding that the trial court abused its discretion in ordering the name change because the only evidence presented by the father regarding the name change was his desire that the child bear his surname and his concern that the use of the mother’s surname would allow her greater influence over the child). Moreover, contrary to the majority’s assertion, the record does not reflect that the trial court considered other factors in addition to paternity when ordering the name change. As we have explained, it is error to change a child’s surname based on a finding of paternity. See Bardin v. State, Dep’t of Revenue, 720 So.2d 609, 612 (Fla. 1st DCA 1998); Girten, 698 So.2d at 888 (“The mere fact that paternity has been established does not automatically entitle the father to insist the child be given his surname.”). This case presents nothing more than conclusory assertions on appel-lee’s part as to why the name change is necessary. Because such assertions may not form the basis for a name change, I would reverse the order on appeal. See Aqui v. Sasser, 863 So.2d 449, 449 (Fla. 1st DCA 2004) (reversing the order changing the child’s name because the conclusory assertions made by the father were insufficient to support a name change); Cothron v. Hadley, 769 So.2d 1148, 1148 (Fla. 5th DCA 2000) (reversing the order changing the children’s name because the mother’s testimony that she wanted to protect the children from any embarrassment they might suffer by having the same last name as their father, a convicted sex offender, was conclusory); Carlisle v. Carlisle, 750 So.2d 165, 165-66 (Fla. 1st DCA 2000) (reversing a final judgment changing the parties’ children’s maternal surname to that of the father because nothing in the record disclosed why the name change was in the children’s best interests).