author: PARIENTE, J. WELLS, J.,

text:
    Gary Lamar POLITE, Petitioner, v. STATE of Florida, Respondent.
    No. SC06-1401.
    Supreme Court of Florida.
    Sept. 27, 2007.

      Carlos F. Gonzalez of Diaz, Reus, Rolff and Targ, LLP, Miami, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, Florida, Richard L. Polin, Bureau Chief, and Lucretia A. Pitts, Assistant Attorneys General, Miami, FL, for Respondent.
   PARIENTE, J.

We have for review Polite v. State, 933 So.2d 587 (Fla. 3d DCA 2006), in which the Third District Court of Appeal certified conflict with the Fifth District Court of Appeal’s decision in A.F. v. State, 905 So.2d 1010 (Fla. 5th DCA 2005). The conflict issue is whether knowledge that a victim is a law enforcement officer is an essential element of the offense of resisting an officer with violence under section 843.01, Florida Statutes (2002). The Third District in Polite held that knowledge of an officer’s status is not an essential element of the offense of resisting an officer with violence. The Fifth District in A.F. reached the opposite conclusion. Because we conclude that knowledge is an essential element of the crime of resisting an officer with violence, we quash the Third District’s decision in Polite and approve the Fifth District’s decision in A.F., to the extent it held that the State has the burden of proving the defendant’s knowledge of the officer’s status.

FACTS AND PROCEDURAL HISTORY

This case arises from the arrest and conviction of Gary Polite, a 38-year-old homeless man, for resisting an officer with violence under section 843.01. On December 16, 2002, Miami-Dade County Police Officer Marcos Muñoz was working undercover in the downtown Miami area, wearing a T-shirt underneath a plaid, button-down shirt. Officer Muñoz was patrolling for potential thieves near jewelry stores in downtown Miami when he observed Polite shaking and poking a parking meter in an apparent effort to extract some coins. Tampering with a parking meter is a misdemeanor so Muñoz moved in for an arrest.

According to Muñoz, he pulled out his badge, grabbed his handcuffs and went to seize Polite’s wrist while simultaneously identifying himself as a police officer. Polite pulled away and Muñoz took hold of his shoulders and clothing so he would not get away. Muñoz told him not to resist.

The defendant’s upper clothing slipped off and the defendant was able to get out of Officer Munoz’s grasp. The defendant attempted to hit the officer and fled the scene. Officer Munoz sent out a BOLO [ (be on the lookout) ] for the defendant.
Officer Santiago was also working patrol that evening, not undercover, and received Officer Munoz’s BOLO call. Shortly thereafter, Officer Santiago observed the defendant riding his bike. The defendant got off the bike and started walking toward the police officer. Officer Santiago identified himself as an officer and directed the defendant to stop. The defendant submitted to officer Santiago’s authority without a struggle.

Polite, 933 So.2d at 588 n. 2.

The State charged Polite with second-degree misdemeanor tampering with coin-operated vending machines and parking meters under section 877.08(3), Florida Statutes (2002), and third-degree felonious resisting an officer with violence under section 843.01. Only two witnesses testified at trial. Officer Muñoz testified for the State concerning his observations and actions in attempting to arrest Polite. Officer Santiago testified for the defense concerning his actions in detaining Polite. Officer Santiago was in full uniform when he received the BOLO from Officer Muñoz. Officer Santiago testified that he was clearly identifiable as an officer and Polite submitted with “no struggle.” Additionally, Officer Santiago testified that although Polite did not approach him asking for help or mention that someone was chasing him, Polite told Officer Santiago that “he wasn’t sure that [Officer Muñoz] was a policeman.”

At the close of all the evidence, Polite moved for a judgment of acquittal on both counts. As to the count of resisting an officer with violence, Polite argued that the State failed to meet its burden on an essential element of the crime — that Polite knew Muñoz was an officer. The State argued that knowledge of the officer’s status was not an essential element of the offense and therefore the State was required to prove only “that the defendant knowingly and willfully resisted or obstructed or opposed the officer by offering to do him violence.” The trial court denied the motions.

During closing argument, the State told the jury that it had to prove only three elements for the crime of resisting an officer with violence: (1) defendant knowingly and willfully resisted, obstructed or opposed an officer by offering to do violence; (2) the officer was engaged in the lawful execution of a legal duty; and (3) that the victim was an officer. The State emphasized that it need not prove that the defendant knew the victim was an officer, but explained that it was impossible for Polite not to have known. Polite responded by reasserting that the State failed to meet its burden of proving that Polite knew Muñoz was an officer. Further, Polite argued that the evidence indicated that he was struggling to get away from an unknown attacker.

Defense counsel requested a special instruction that the State had to prove the defendant’s knowledge of Officer Munoz’s status, which was denied by the trial court. Defense counsel then filed a motion for a mistrial based on the trial court’s refusal to read the special instruction, which was also denied. Over defense counsel’s objection, the trial court read the standard jury instruction on the count for resisting an officer with violence. Although this instruction explains that the State must prove that the defendant knowingly and willfully resisted, it does not include a specific requirement as to the defendant’s knowledge of the officer’s status. The trial court also instructed the jury on the permissive lesser included offense of resisting an officer without violence under section 843.02, Florida Statutes (2002), and misdemeanor tampering with coin-operated vending machines or parking meters.

The jury convicted Polite of both misdemeanor tampering with a parking meter and felonious resisting an officer with violence. Polite filed a motion for a new trial. The State and Polite reasserted their arguments as to whether knowledge of Officer Muñoz’s status is an element of resisting an officer with violence. The trial court denied the motion.

On the misdemeanor tampering with a parking meter charge, Polite was sentenced to 227 days’ imprisonment. On the felony charge, Polite was sentenced to seven and one half years as a prison releasee reoffender and habitual felony offender with a five-year mandatory minimum term of incarceration.

On appeal, Polite again argued that knowledge of the officer’s status is an essential element of the offense of resisting an officer with violence and that the trial court erred in not instructing the jury on this element. See Polite, 933 So.2d at 589. The Third District ultimately affirmed Polite’s convictions and sentences, concluding that knowledge of an officer’s status is not an element of the crime of resisting an officer with violence under section 843.01. See id. Although the Third District held that knowledge is not an essential element, the court noted that a defendant may assert his or her lack of knowledge as an affirmative defense to the crime. See Polite, 938 So.2d at 593. However, the court concluded that “the availability of such a defense ... does not render knowledge an element of the offense itself which must be established by the state.” Id In reaching this conclusion, the Third District certified conflict with the Fifth District’s decision in A.F. See id at 594.

ANALYSIS

I. Principles of Statutory Construction

Because the conflict issue involves the interpretation of a statute, this Court’s review is de novo. See Tillman v. State, 934 So.2d 1263, 1269 (Fla.2006). As with all cases of statutory construction, it is the Court’s purpose to effectuate legislative intent. See Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). This is because “legislative intent is the polestar that guides a court’s statutory construction analysis.” State v. J.M., 824 So.2d 105, 109 (Fla.2002). In construing a statutory provision, the Court first looks to the actual language used in the statute. See State v. Bodden, 877 So.2d 680, 685 (Fla.2004). As this Court has previously stated, “the Legislature generally has broad authority to determine any requirement for intent or knowledge in the definition of a crime. To determine whether the Legislature included a knowledge requirement in any given statute, we first look to the statute’s plain language.” State v. Giorgetti, 868 So.2d 512, 515 (Fla.2004) (citation omitted). If the plain meaning of the language is clear and unambiguous, then the Court need not delve into principles of statutory construction unless that meaning leads to a result that is either unreasonable or clearly contrary to legislative intent. See State v. Burris, 875 So.2d 408, 410 (Fla.2004). However, if the language is unclear or ambiguous, then the Court applies rules of statutory construction to discern legislative intent. See Bautista, 863 So.2d at 1185.

With respect to criminal statutes, “[o]ne of the most fundamental principles of Florida law is that penal statutes must be strictly construed according to their letter.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). In fact, the Legislature has specifically codified this principle of lenity in section 775.021(1), Florida Statutes (2002). “This principle ultimately rests on the due process requirement that criminal statutes must say with some precision exactly what is prohibited.” Perkins, 576 So.2d at 1312. Thus, when criminal statutes are subject to competing, albeit reasonable, interpretations, they must be “strictly construed ... most favorably to the accused.” § 775.021(1), Fla. Stat.; accord State v. Byars, 823 So.2d 740, 742 (Fla.2002); Wallace v. State, 724 So.2d 1176, 1180 (FIa.1998).

A. Construction of Section 843.01

Section 843.01 provides in pertinent part:

Whoever knowingly and willfully resists, obstructs, or opposes any officer ... in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 843.01, Fla. Stat. Section 843.01 was originally enacted in 1881 and has, remarkably, remained relatively unchanged since that time. In fact, the critical phrase and gravamen of the offense, “knowingly and willfully resists, obstructs, or opposes any [officer],” has been part of the statute since its inception. Ch. 3276, § 1, Laws of Fla. (1881).

The State argues and the Third District held “that the ‘plain language’ of section 843.01 shows that the legislature did not include knowledge of the victim’s status as an element of the offense,” because the adverbs knowingly and willfully only modify the verbs “resists, obstructs, or opposes” rather than the entire phrase. Polite, 933 So.2d at 589. In other words, the State urges an interpretation, which was adopted by the Third District, that the defendant must only knowingly and willfully engage in the proscribed conduct, i.e., resisting, obstructing, or opposing an individual who just so happens to be an officer. See id. at 590.

Conversely, the Fifth District in A.F. expressly held that knowledge of the officer’s status is an element of the crime of resisting an officer with violence. 905 So.2d at 1012. Further, both the First and Fourth District Courts of Appeal have assumed, without engaging in statutory interpretation, that the State must prove the defendant’s knowledge of the officer’s status. See W.E.P. v. State, 790 So.2d 1166, 1172 (Fla. 4th DCA 2001); O’Brien v. State, 771 So.2d 563, 564 (Fla. 4th DCA 2000); Cooper v. State, 742 So.2d 855, 857, 857 n. 2 (Fla. 1st DCA 1999) (comparing resisting an officer without violence under section 843.02, which, despite the text’s omission of an express knowledge requirement, has been interpreted as requiring that the person charged have knowledge that the person he or she is resisting is an officer, with resisting an officer with violence under section 843.01, which has a specific knowledge requirement). These courts essentially conclude that without knowledge that the victim is an officer, the defendant cannot be found guilty of the crime of resisting an officer with violence.

We conclude that the statute is subject to competing reasonable interpretations as to whether knowledge of the officer’s status is an essential element of resisting an officer with violence. Thus, at the very least, the provision is ambiguous and must be strictly construed most favorably to the accused. See § 775.021(1), Fla. Stat.; Perkins, 576 So.2d at 1312. However, even beyond this fundamental tenet of Florida law regarding the construction of criminal statutes, which weighs in favor of the defendant, the application of the rules of statutory construction lead us to conclude that “knowingly and willfully” modifies the entire phrase “resisting, obstructing or opposing an officer,” including both the verbs “resist, obstruct, or oppose” and the object “an officer.”

As this Court observed in determining whether resisting an officer with violence was a specific or general intent crime, the statute’s plain language reveals that a defendant must have a “general intent to ‘knowingly and willfully’ impede an officer in the performance of his or her duties.” Frey v. State, 708 So.2d 918, 920 (Fla.1998) (emphasis supplied). “Knowing” has been defined as “having or showing awareness or understanding; well-informed.... Deliberate; conscious.” Black’s Law Dictionary 888 (8th ed. 004). “Willful” conduct has been defined as “Voluntary and intentional, but not necessarily malicious,” id. at 1630, and “Proceeding from a conscious motion of the will; voluntary; knowingly; deliberate. Intending the result which actually comes to pass; designed; intentional; purposeful; not accidental or involuntary.” Jones v. State, 912 So.2d 686, 688 (Fla. 1st DCA 2005) (quoting Black’s Law Dictionary 1599 (6th ed. 1990)). Based on these common definitions, it would be difficult for one to impede an officer in the performance of his or her duties both “knowingly,” having an awareness or understanding, and “willfully,” intending the result which actually comes to pass, without knowing that the person he or she is impeding is an officer.

On the other hand, a construction like that of the Third District, namely, that the terms “knowingly and willfully” only modify the verbs “resist, obstruct or oppose,” would render the words “knowingly and willfully” superfluous. For instance, the word “resist” has been defined as follows: “to exert force in opposition ... to exert oneself so as to counteract or defeat.” Merriam Webster’s Collegiate Dictionary 994 (10th ed. 2001). The very nature of “resisting” therefore implies an element of knowledge, i.e., an awareness that another is exerting force and an intent to counter that force in opposition. If this Court were to adopt the Third District’s construction, we would be disregarding the maxim of statutory construction that courts are required to give significance and effect to every word or phrase in a statute. See Gulfstream Park Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006).

Moreover, without requiring that the defendant know the person he or she is resisting is a police officer, an argument could be made that the statute does not put the defendant on adequate notice of what conduct is prohibited, which is contrary to a basic tenet of due process that criminal statutes must state with some precision exactly what is prohibited. See Perkins, 576 So.2d at 1812.

B. Construction of Section 843.02

Our statutory construction analysis is further facilitated by an interpretation of the essential elements of the offense of resisting an officer without violence under section 843.02, Florida Statutes (2002), a permissive lesser included offense of resisting an officer with violence under section 843.01. See State v. Espinosa, 686 So.2d 1345, 1347 (Fla.1996). Section 843.02 states that “[w]hoever shall resist, obstruct, or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.” Similar to section 843.01, this provision specifies that it is unlawful to “resist, obstruct or oppose any officer.” §§ 843.01, 843.02, Fla. Stat. However, unlike section 843.01, there is no language in section 843.02 requiring the defendant to act “knowingly and willfully.” Yet courts, including the Third District in this case, have interpreted section 843.02 as requiring proof of a defendant’s knowledge of the officer’s status. See Polite, 933 So.2d at 592-93; Cooper, 742 So.2d at 857; Harris v. State, 935 So.2d 1259, 1262 (Fla. 5th DCA 2006).

The Third District in Polite reasoned that knowledge must be read into section 843.02, even though the provision is silent as to such a requirement, because “the forbidden conduct would not otherwise be necessarily improper.” 933 So.2d at 593. The court explained that, without the element of knowledge, “one would be subject to prosecution for entirely innocent behavior — such as, for example, simply walking away from an unidentified someone who ordered him to remain still.” Id. In other words, if the individual does not know that the person is a police officer, there may be circumstances where it is permissible to refuse to leave the area, resist being handcuffed (without violence) or even flee the scene. As the court in Cooper observed, if the defendant believed he or she was being detained by a drug dealer, he or she would have the right to resist the detention. 742 So.2d at 857-58. Contrary to the Third District’s analysis, we believe this argument is equally applicable to the crime of resisting an officer with violence. For instance, if a defendant does not know that the person attempting to detain him or her is a police officer, that person has every reason to resist any effort at restraint or detention.

Moreover, such a construction would give rise to the anomalous result that the more serious crime would not require knowledge of the victim’s status even though it contains the words “knowingly and willfully,” but the less serious crime would require such knowledge even absent a knowing requirement written into the statute. Cf Thompson v. State, 695 So.2d 691, 693 (Fla.1997); Chicone v. State, 684 So.2d 736, 742 (Fla.1996). In Thompson, the Court concluded that it would be incongruous not to require knowledge of the victim’s status for attempted murder of a law enforcement officer, which was classified as a life felony, where the offense of attempted first-degree murder in general is only punishable by a maximum of thirty years in prison. See 695 So.2d at 693. The Court further stated that any other result would “ignore the basic tenet of statutory construction that courts are constrained to avoid a construction that would result in unreasonable, harsh, or absurd consequences.” Id.

These principles are equally applicable to the analysis here. Section 843.02 is a permissive lesser included offense of section 843.01 — the former a first-degree misdemeanor subjecting a nonhabitual offender to a maximum of one year in prison and the latter a third-degree felony subjecting a nonhabitual offender to a maximum of five years in prison. See § 775.082, Fla. Stat. (2002). Moreover, as previously mentioned, the Legislature requires a defendant to act “knowingly and willfully” in resisting an officer with violence, but clearly omits any such requirement in resisting an officer without violence. According to the principles this Court first stated in Chicone and reiterated in Thompson, it would be incongruous to require knowledge of the officer’s status for resisting an officer without violence, a first-degree misdemeanor, but not require knowledge of the victim’s status for resisting an officer with violence, a third-degree felony. Thompson, 695 So.2d at 693; Chicone, 684 So.2d at 742. Concluding otherwise would arguably lead to an unreasonable and harsh result, where a defendant’s required mental state for a felony offense is less than that required for a permissive lesser included misdemeanor offense. Thompson, 695 So.2d at 693.

C. Related Statutory Provisions

A review of related statutory provisions involving crimes against law enforcement officers further supports the construction that knowledge of an officer’s status is an essential element of the offense of resisting an officer with violence. See T.R. v. State, 677 So.2d 270, 271 (Fla.1996) (reiterating that courts must construe related statutory provisions in harmony with one another). Section 843.01 is part of a statutory scheme that is designed to protect law enforcement officers and ensure that they are able to perform their duties. For example, section 784.07(2), Florida Statutes (2002), states that “[wjhenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ... while the officer ... is engaged in the lawful performance of his or her duties, the offense for which the person is charged shall be reclassified.” For purposes of our analysis, it is significant that we have previously held that knowledge of the officer’s status is an essential element of this offense even though section 784.07(2) lacks specific language to that effect. See Thompson, 695 So.2d at 692; Street v. State, 388 So.2d 900, 900 (Fla. 1980).

The language of section 784.07 is almost identical to that of section 843.01 — both statutes include the word “knowingly,” followed by a proscribed act upon an officer. Compare § 784.07(2), Fla. Stat. (“Whenever any person is charged with knowingly committing an assault or battery upon a law enforcement officer ....”) with § 843.01, Fla. Stat. (“Whoever knowingly and willfully resists, obstructs, or opposes any officer.... ”). Although the actus reus or proscribed acts are distinct, i.e., “assault and battery” versus “resists, obstructs, or opposes,” the requisite mens rea or mental state is comparable. Therefore, because the Court has previously held that “knowingly” in section 784.07 includes knowledge of the officer’s status, it would be unreasonable for the Court not to similarly conclude that “knowingly and willfully” in section 843.01 includes knowledge of the officer’s status.

We acknowledge the Third District’s observation “that when the legislature determines that knowledge of an officer’s status is an element of an offense, it has expressly included such a condition.” Polite, 933 So.2d at 591. The Third District referred to section 784.081(2), Florida Statutes (2000), which reclassifies the offense of assault or battery upon any employee of the state system of education “when the person committing the offense knows or has reason to know the identity or position or employment of the victim,” and section 316.1935(1), Florida Statutes (2005), which states that “[i]t is unlawful for the operator of any vehicle, having knowledge that he or she has been ordered to stop such vehicle by a duly authorized law enforcement officer, willfully to refuse or fail to stop the vehicle in compliance with such order.”

The Third District is correct that the Legislature clearly intended to make knowledge of the school board official’s or the officer’s status an element of these offenses and failed to include similar language in section 843.01. Certainly, we have applied the principle that the Legislature “ ‘knows how to’ accomplish what it has omitted” in a provision, in construing related statutes. Cason v. Fla. Dep’t of Mgmt. Servs., 944 So.2d 306, 315 (Fla. 2006) (quoting Rollins v. Pizzarelli, 761 So.2d 294, 298 (Fla.2000)). However, the relevance of this discrete statutory construction principle is tempered by the fact that courts have interpreted several other provisions directly relating to crimes against law enforcement officers as requiring knowledge of an officer’s status despite a lack of specific language to that effect. See Thompson, 695 So.2d at 692 (concluding that battery on a law enforcement officer under section 784.07(2) and attempted murder of a law enforcement officer under section 784.07(3) include knowledge of the officer’s status as an essential element); Cooper, 742 So.2d at 858 (concluding that resisting an officer without violence under section 843.02 requires proof of defendant’s knowledge of officer’s status). Thus, the Legislature’s failure to expressly include knowledge of the officer’s status as an essential element in section 843.01 is not dispositive in this case, particularly where the statute was enacted over 120 years ago and has always, since its adoption, included the requirement that the defendant act “knowingly and willfully.”

D. Knowledge of an Officer’s Status as an Affirmative Defense

Importantly, this is not a case where the State is arguing that knowledge of the officer’s status is unrelated to the crime. The State’s position is that although knowledge of the victim’s status as a law enforcement officer is not an essential element of the offense, it can be raised as an affirmative defense.

The State’s argument rests on section 776.051(1), Florida Statutes (2002), a provision in the chapter concerning the justifiable use of force. Section 776.051(1), entitled “Use of force in resisting or making an arrest; prohibition,” provides that

[a] person is not justified in the use of force to resist an arrest by a law enforcement officer who is known, or reasonably appears, to be a law enforcement officer.

Although this Court previously determined that section 776.051(1) is to be read in pari materia with section 843.01, Tillman, 934 So.2d at 1270 n. 4, we also explained that this section “abrogates the common-law right to resist an illegal arrest with force.” Id. at 1269. Essentially, the provision is a limitation on the use of an affirmative defense, in that it “forecloses the defense of justifiable use of force by a defendant who resists an arrest by a law enforcement officer.” Id. Furthermore, we stated that this provision “is limited by its plain terms to situations involving an actual arrest.” Id. at 1270 (emphasis supplied). Therefore, section 776.051(1) cannot provide for an affirmative defense to resisting an officer with violence under section 843.01, a provision which criminalizes violent resistance in both arrest and non-arrest encounters with law enforcement officers.

By arguing that knowledge can be an affirmative defense to the crime, even absent direct statutory authority, the State essentially concedes that knowledge is relevant to the offense of resisting an officer with violence. We agree that it is relevant and reject the State’s attempt to shift the burden to the defense to establish that the defendant did not know that the victim was a police officer. Rather, for all the aforementioned reasons, knowledge of the officer’s status is an essential element that is part of the State’s burden of proof.

F. Countervailing Public Policy Considerations

Lastly, Polite and the State extensively argue about the public policy concerns at issue in this case. Polite asserts that the Third District’s decision favors the protection of law enforcement officers at the expense of the citizenry who are “placed in the untenable position of submitting to anyone who claims to be a police officer or face the possibility of extended incarceration for violating section 843.01.” And such a concern is logical given the “all too sad fact that persons have been victimized as a result of their trusting criminals who were impersonating police officers to facilitate crimes.” W.E.P., 790 So.2d at 1172; see also A.F., 905 So.2d at 1012. Conversely, the State asserts that the protection of law enforcement officers, especially those who are undercover or enforcing an unpopular law, supersedes the rights of the citizenry and that, rather than resort to violence or self-defense on the street, the proper forum for such grievances is in the courts.

There is validity to both of these public policy considerations. However, we have repeatedly explained that in matters of statutory construction “it is not this Court’s function to substitute its judgment for that of the Legislature as to the wisdom or policy of a particular statute.” Tillman, 934 So.2d at 1270 (quoting State v. Rife, 789 So.2d 288, 292 (Fla.2001)). Nevertheless, a construction of the statute that requires the State to establish the defendant’s knowledge of the victim’s status as a law enforcement officer appears to favor another important public policy consideration — to ensure that officers, especially those in undercover situations, take steps to properly identify themselves and make certain that an individual who is about to be stopped, frisked, detained, restrained, searched, seized, arrested, or otherwise approached in an official capacity knows the officer’s status.

II. This Case

In this case, there are certainly facts to suggest that Officer Muñoz took steps to identify himself as a police officer before attempting to arrest the defendant. However, there are also facts to suggest that a jury, if properly instructed and not affirmatively misled by the prosecution, could have determined that the State failed to meet its burden on the element of whether Polite knew that the person who attempted to detain him was a police officer. Indeed, when a uniformed officer ultimately arrested Polite and identified himself, Polite not only submitted to that authority without a struggle but told the officer that “he wasn’t sure that [Officer Muñoz] was a policeman.”

Furthermore, the standard jury instructions in this case insufficiently instructed the jury on the State’s burden of proof. We cannot agree with the Fourth District in O’Brien, which held that the standard jury instructions, simply by mirroring the statutory language, adequately advised the jury that knowledge of the status of the victim was an essential element of the crime. See 771 So.2d at 565. In fact, the State relied on the standard jury instructions in this case to argue to the jury that it was not required to prove knowledge. The ambiguity in the current standard jury instructions, which are nothing more than a verbatim restatement of the statute, required the trial court to give the special instruction requested by the defendant, which would have prevented the State from misleading the jury as to its burden of proof. Thus, we cannot conclude that this error in failing to properly instruct the jury is harmless beyond a reasonable doubt.

CONCLUSION

Based on the foregoing analysis, including a review of the text and related statutory provisions involving crimes against law enforcement officers, and applying additional statutory construction principles, we conclude that knowledge of the officer’s status is an essential element of the crime of resisting an officer with violence under section 843.01. Therefore, we quash the decision of the Third District in Polite and approve the decision of the Fifth District in A.F., to the extent it held that knowledge of the officer’s status is an essential element of the offense. We remand with instructions to vacate Polite’s conviction for resisting an officer with violence under section 843.01 and to grant a new trial consistent with this opinion.

It is so ordered.

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

WELLS, J., concurs in result only with an opinion.

WELLS, J.,

concurring in result only.

I concur in result only in this case. I concur in the result because I believe the result is required by the majority decision in Thompson v. State, 695 So.2d 691 (Fla. 1997).

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . Although Officer Santiago was technically on bicycle patrol, he was in his law enforcement vehicle when he came into contact with Polite.

      . As to the count of tampering with a parking meter, Polite argued that there was no direct evidence that he broke into the machine.

      . The court read the following standard jury instruction for resisting an officer with violence:
      1. GARY LAMAR POLITE knowingly and willfully [resisted] [obstructed] [opposed] OFFICER M. MUNOZ by [offering to do him violence] [doing violence to him].
      2. At the time OFFICER M. MUNOZ was engaged in the [execution of a legal process] [lawful execution of a legal duty].
      3. At the time OFFICER M. MUNOZ was an officer.

      . The court read the following standard jury instruction for resisting an officer without violence:
      1. GARY LAMAR POLITE [resisted] [obstructed] [opposed] OFFICER M. MUNOZ.
      2. At the time OFFICER M. MUNOZ was engaged in the [execution of a legal process] [lawful execution of a legal duty].
      3.At the time OFFICER M. MUNOZ was an officer.

      .The decision currently under review is actually the third decision issued by the Third District in Polite’s appeal. In its first decision, the Third District per curiam affirmed the convictions and sentences. See Polite v. State, 29 Fla. L. Weekly D1932 (Fla. 3d DCA Aug. 11, 2004) (citing O'Brien v. State, 771 So.2d 563 (Fla. 4th DCA 2000)). Polite moved for rehearing and the Third District set aside its previous decision and substituted another for it. See Polite v. State, 934 So.2d 496, 497 (Fla. 3d DCA 2005) (reversing the conviction and concluding that "[t]here is no doubt [knowledge] is an indispensable element of the crime in question”). After the second decision, the State moved for rehearing and the Third District replaced its second decision with the decision currently pending review in this Court.

      . Interestingly, in its second decision on appeal, the Third District relied on Cooper in holding that there is "no doubt” that knowledge is an essential element of the crime and that the prosecutor had “erroneously informed the jury that it was not necessary to establish this fact to convict the defendant.” Polite, 934 So.2d at 497.

      . Although section 775.082 was amended in 2005, see ch. 2005-28, § 4, Laws of Fla., the revision does not affect the specific text or principles for which this provision is cited.

      . Although section 784.07(2) was amended in 2002, see ch. 2002-209, §§ 1-2, Laws of Fla., in 2006, see ch. 2006-127, § 1, Laws of Fla., and again in 2007, see ch. 2007-112, § 1, Laws of Fla., the revisions did not amend the text mentioned above or the principles for which the provision was cited.

      . Additionally, this Court previously held that knowledge of an officer's status was also an essential element of attempted murder of a law enforcement officer under the 1993 version of section 784.07(3). See State v. Barnum, 921 So.2d 513, 517 (Fla.2005), cert. denied, - U.S. -, 127 S.Ct. 493, 166 L.Ed.2d 365 (2006); Thompson, 695 So.2d at 692. Although the 1993 version of section 784.07(3) did not include specific language regarding knowledge of the officer’s status, we nevertheless concluded that if the underlying crime of battery required the defendant to know of the officer’s status then the greater offense of attempted murder of an officer should also require such knowledge. See Thompson, 695 So.2d at 692. We note that section 784.07(3) has been amended since 1993 and no longer includes the offense of attempted murder of a law enforcement officer. See § 784.07(3), Fla. Stat. (2006).

      . Although section 784.081 has been subsequently amended, see ch. 2001-68, § 11, ch. 2002-387, § 1037, ch. 2004-41, § 19, ch. 2004-276, § 1, ch. 2004-350, § 48, Laws of Fla., these amendments did not revise the language cited above or the principles for which this statute is cited.

      . We reject the Third District's reliance on the United States Supreme Court's decision in United States v. Feola, 420 U.S. 671, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). In Feola, the Court construed 18 U.S.C. § 111 (2000), not to require knowledge of an officer’s status. See id. at 684. However, the federal statute is distinguishable from section 843.01 because it does not include the requirement that the defendant act "knowingly and willfully.” See 18 U.S.C. § 111(a)(1) ("Whoever ... forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any person designated in section...."). Moreover, the counterpart to this federal statute is not only section 843.01 but also 787.07(2), the provision addressing assault and battery on a law enforcement officer, which we have already held under Florida law requires proof that the defendant knew of the officer’s status. See Thompson, 695 So.2d at 692.
      We similarly reject the Third District’s reliance on a number of distinguishable out-of-state cases. Several of these decisions are distinguishable because the courts construed statutes that excluded the terms "knowingly and willfully.” See Jaclcson v. State, 734 A.2d 641, 1999 WL 591502, *1 (Del. 1999) ("A person is guilty of resisting arrest when the person intentionally prevents or attempts to prevent a peace officer from effecting an arrest....”); Powell v. State, 806 So.2d 1069, 1075 n. 2 (Miss.2001) ("It shall be unlawful for any person to obstruct or resist by force, or violence, or threats, or in any other manner, his lawful arrest or the lawful arrest of another person by any state, local or federal law enforcement officer....”). Additionally, the Third District noted several states that have statutes that expressly stated knowledge was an affirmative defense. See State v. Daniels, 220 Neb. 480, 370 N.W.2d 179, 181-82 (1985) ("It is an affirmative defense to prosecution under this section if the peace officer involved was out of uniform and did not identify himself or herself as a peace officer by showing his or her credentials to the person whose arrest is attempted.”); Me.Rev.Stat. Ann. 17-A, § 751-A(2) (2006) ("It is a defense to prosecution under this section that the person reasonably believed that the person attempting to effect the arrest or detention was not a law enforcement officer.”). Importantly, as the Third District acknowledged, the several out-of-state cases that involved provisions nearly identical to section 843.01 construed the provisions in line with our decision today. See Phillips v. State, 267 Ga.App. 733, 601 S.E.2d 147, 150 (2004) (rejecting defendant's argument that State failed to prove that he knew the victim was a police officer, where defendant admitted at trial that he ran when he realized the officers recognized him because of outstanding warrants for his arrest); Stack v. State, 534 N.E.2d 253, 255 (Ind.Ct. App.1989) (concluding that defendant had to know or have reason to know of officer's status, where statute required the defendant to act "knowingly and intentionally”).

      . We also refer this issue to the Supreme Court Committee on Standard Jury Instructions in Criminal Cases to propose a revision to the standard jury instructions to make clear that knowledge of the officer’s status is an essential element of the offense of resisting an officer with violence under section 843.01.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Walter Lee CHANEY, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, et al., Respondents.
    No. 1D05-6105.
    District Court of Appeal of Florida, First District.
    June 13, 2006.
    Rehearing Denied Sept. 28, 2006.
    Walter Lee Chaney, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alexandria Walters, Assistant Attorney General, Tallahassee, for Respondents.
   PER CURIAM.

DENIED. Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995).

KAHN, C.J., BARFIELD, and ALLEN, JJ., Concur.


text:
    John PARKER, Petitioner, v. The Jimmie Lee PORTERFIELD ESTATE, et al., Respondents.
    No. 1D06-1003.
    District Court of Appeal of Florida, First District.
    July 10, 2006.
    John Parker, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

KAHN, C.J., WEBSTER, and HAWKES, JJ., concur.


author: ERVIN, J.

text:
    Dr. John FULLERTON, Appellant, v. The FLORIDA MEDICAL ASSOCIATION, INC., Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph O. Krebs, Appellees.
    Nos. 1D05-0185, 1D05-3632.
    District Court of Appeal of Florida, First District.
    July 11, 2006.

      James F. McKenzie of McKenzie, Taylor & Zaraur, P.A., Pensacola, and John Vail and Julie Schroeder of the Center for Constitutional Litigation, P.C., Washington, D.C., for Appellant.
    Angela C. Flowers of Kubicki Draper, Miami, for Appellee The Florida Medical Association.
    Robert V. Williams, and John A. Schifi-no of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Appellees Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph 0. Krebs.
    Jon N. Ekdahl, Leonard A. Nelson, and Steve I. Ro of the American Medical Association, Chicago, IL; John D. Buchanan, Jr., of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Amicus Curiae American Medical Association.
    Rebecca O’Dell Townsend of The Solomon Tropp Law Group, P.A., Tampa, for Amicus Curiae Washington Legal Foundation.
   ERVIN, J.

In these consolidated appeals, Dr. John Fullerton, a medical practitioner and an expert witness in a medical-malpractice action, appeals separate final judgments entered on prior orders granting the appel-lees’ motions to dismiss Dr. Fullerton’s amended complaints alleging counts in defamation, tortious interference with an advantageous business relationship, conspiracy through abuse of economic power, witness intimidation brought against all of the defendant/appellees, and a count against defendant/appellee Florida Medical Association (FMA), a professional peer-review association, for violation of Florida’s RICO Act. Because we decide that the lower eourt erroneously concluded that section 766.101, Florida Statutes (2003), and the federal Health Care Quality Improvement Act, 42 U.S.C. §§ 11101— 11152 (HCQIA), immunize the FMA and the individual defendant physicians from all liability, we reverse the final judgments of dismissal and remand the cases for further consistent proceedings.

Following Dr. Fullerton’s testimony as an expert witness in a medical-malpractice action brought against doctors Jonathan B. Warach, Pravinchandra Zala, and Joseph O. Krebs (individual defendants and appel-lees in case no. 1D05-0185), which resulted in a judgment exonerating them from liability, they forwarded a letter to the FMA complaining of Dr. Fullerton’s testimony, stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and that he specifically “presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care.” Appellees concluded their letter with a request to the FMA to issue an opinion addressing whether Fullerton’s testimony “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for appropriate disciplinary action in order “to prevent the Medical profession from being terrorized by similar experts.”

Following the publication of the letter, Dr. Fullerton filed his initial complaint with a copy of the letter attached, naming both the FMA and the individual physicians as defendants. He alleged that while he is licensed to practice medicine in California and Florida, he is not a member of the FMA; that he resides in California where he primarily practices his profession. He generally alleged that the statements in the letter were false and were submitted for processing by the FMA’s Expert Witness Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which was organized for the purpose “of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice,” thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits. He continued that because of the actions of FMA and the defendant doctors, who acted in concert to inhibit expert testimony in medical-malpractice cases, he had suffered damages and would suffer irreparable harm to his reputation and to his capacity to earn income in the future if the defendant FMA’s CEJA and EWC programs were permitted to continue their operations.

All of the defendants filed motions to dismiss, raising as grounds that the claims were barred by the Florida and federal immunity statutes. At the hearing conducted on the motions to dismiss, plaintiffs counsel argued that although the FMA is statutorily designated a professional-review committee, the immunity statutes were not designed to apply to expert-witness testimony; rather, they were enacted for the purpose of addressing the quality of health care provided by physicians in the treatment of their patients.

At the conclusion of the hearing, the court ruled that the statutory immunity privilege provided in both section 766.101 and the HCQIA barred the plaintiffs claims in the absence of allegations of intentional fraud. As a result, the court granted the motions to dismiss without prejudice for Dr. Fullerton to amend his complaint in an effort to state a cause of action for intentional fraud with the specificity required by Florida Rule of Civil Procedure 1.120(b).

Following plaintiffs election not to amend the complaint brought against the individual physicians, the trial court entered final judgment of dismissal with prejudice, and the appeal from same is designated as case number 1D05-0185. Plaintiff later filed an amended complaint against the defendant FMA, asserting essentially the same allegations and the same counts, resulting in the trial court’s dismissal with prejudice of all counts except defamation, which the court dismissed without prejudice for him to amend by specifically alleging extrinsic evidence of intentional fraud. The court also dismissed the amended defamation complaint for the same reasons given for the dismissal of the prior complaints, and the appeal therefrom is styled case number 1D05-3632.

This court’s review standard of a trial court’s grant of a motion to dismiss is de novo. See Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005). Moreover, because the lower court’s dismissal orders depended primarily on its interpretation of the pertinent immunity statutes, our review standard of its legal construction is de novo. We find nothing in Florida’s medical peer-review statutes reasonably supporting an interpretation that a peer-review committee is shielded from liability for an act taken by the committee on a claim that a physician’s testimony in a medical-malpractice action fell below acceptable professional standards. The peer-review immunity statute, section 766.101(3)(a), provides in part:

There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information ... for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud.

In rejecting a challenge that the statute violated Florida’s constitutional access to courts provision, the state supreme court ruled that the statute did not have the effect of abolishing all canses of action that had previously existed before its enactment; rather, its provisions permitted “a defamation action against a committee member or health care provider when the plaintiff can establish extrinsic evidence of malice or fraud.” Feldman v. Glucroft, 522 So.2d 798, 800 (Fla.1988). The statute was later described as “plac[ing] a burden on the plaintiff to plead extrinsic evidence before authorizing a lawsuit in which such evidence could be discovered.” Dhaduvai v. Belsito, 663 So.2d 1356, 1357 (Fla. 2d DCA 1995). The plaintiff meets the statutory burden by filing a complaint “con-tainting] allegations of extrinsic evidence of either a lack of good faith or intentional fraud.” Id. at 1357, n. 2.

It is obvious that the lower court’s interpretation of section 766.101(3)(a) in the case at bar was largely influenced by the above cases, which, however, did not involve a question of whether the statute’s immunity provisions apply to expert-witness testimony in a medical-malpractice action. In our judgment, because neither Florida’s peer-review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude the statutes provide no immunity to the defendants.

The parties do not dispute that the FMA EWC is a “committee of a state or local professional society of health care providers,” as defined in section 766.101(l)(a)l.c, or that the term “health care providers” includes licensed physicians. See § 766.101(l)(b), Fla. Stat. Other pertinent provisions of the peer-review statute, however, offer little support to the lower court’s application of immunity to the facts alleged. Florida’s peer-review procedure was created for the purpose of “evalu-at[ing] and improving] the quality of health care rendered by providers of health service or ... determin[ing] that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.” § 766.101(l)(a), Fla. Stat.

The defendants argue that the submission of expert-witness testimony in medical-malpractice actions is a provision of health care by a health care provider. They point out that the preamble to chapter 73-50, Laws of Florida, which created the medical-review committee procedure, recited the need for establishing such committees “for the purpose of reviewing standards of care, utilization and expense in the rendering of health services in an effort to deter or eliminate some of the causes of the increased claims and costs of providing health services.” Based on this language, the appellees contend that the review of an expert witness’s medical testimony by a professional peer-review committee implements the legislative goal seeking the reduction of costs in the rendering of health services. They continue that unprofessional expert medical testimony threatens the quality of health care because if such testimony is not made subject to review, physicians are frequently pressured into performing unnecessary procedures that drive up the cost of health care, and subject patients to unnecessary and potentially dangerous treatments for the purpose of guarding against baseless malpractice claims. As a result, they assert that an assessment by a board-certified peer-review committee of the quality of an expert’s opinion serves to promote the legislative goal of improving the quality of health care.

If such was indeed one of the purposes leading to the act’s adoption, the legislature failed to express its intention with the clarity one would reasonably expect it to use in bringing about such a substantial change to the privilege traditionally accorded witness testimony. Although a medical-review procedure that subjects the substandard practice of physicians to peer review is unquestionably remedial legislation and entitled to a liberal construction, cf. De Bowes v. De Bowes, 149 Fla. 545, 7 So.2d 4 (1942), a broad construction should not b.e accorded if its effect is to confer powers not expressly or reasonably implied in the statute’s provisions. See Becker v. Amos, 105 Fla. 231, 141 So. 136 (1932).

Moreover, if the statute were construed in the manner appellees advocate, such construction would ignore one of the cardinal tenets of statutory interpretation, requiring that statutes enacted in derogation of rights established by the common law be given a narrow, not a liberal construction. The common law has long recognized that an absolute civil privilege extends to a witness’s testimony in connection with or in the course of an existing judicial proceeding. See Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929); Stucchio v. Tincher, 726 So.2d 372, 375 (Fla. 5th DCA 1999). As noted in Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004): “By virtue of this immunity, defamatory statements made in the course of judicial proceedings by parties, witnesses and counsel are absolutely privileged, no matter how false or malicious those statements might be, provided the statements are relevant to the subject of the inquiry.” The consequence of the rule is that “[t]orts such as perjury, libel, slander, and other actions based on statements made in connection with a judicial proceeding are not actionable.” Id. Thus, a statute which conflicts with a rule of common law is required to be construed strictly, with the result that no change in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot otherwise be given effect. See McGhee v. Volusia County, 679 So.2d 729, 731 (Fla.1996).

We find no clear legislative expression that the testimonial privilege long accorded to witnesses was intended to be modified by the language of section 766.101, which was expressly created for the purpose of evaluating and improving the quality of health care rendered by providers of health service. The term “render” is defined, among other things, as doing a service for another. Merriam-Webster’s Collegiate Dictionary 990 (10th ed.1998). A physician who renders a medical service is ordinarily considered to be providing medical care to his or her patient. This conclusion becomes even more evident when one considers the provisions of section 766.101 in connection with those of section 458.305(3), Florida Statutes (2003), which defines the practice of medicine as the “diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.”

Based upon our examination of all pertinent provisions of the statute, we agree with appellant that it fails to immunize the FMA from liability when that body acts to evaluate the testimony of a medical expert given in a medical-malpractice action.

We also agree that the HCQIA, 42 U.S.C. §§ 11101-11152, provides no immunity to the FMA in its role as an examiner of the quality of a non-member physician’s judicial testimony. In 1986, Congress created the HCQIA for the purpose of improving the “quality of medical care by restricting the ability of physicians who have been found to be incompetent from repeating this malpractice by moving from state to state without discovery of such finding.” Imperial v. Suburban Hosp. Ass’n, Inc., 37 F.3d 1026, 1028 (4th Cir. 1994).

Congress made the following findings supporting its enactment of the HCQIA:

(1) The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.
(2) There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.
(3) This nationwide problem can be remedied through effective professional peer review.
(4) The threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review.
(5) There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.

42 U.S.C. § 11101. In order to carry out the findings expressed, professional review bodies were created, and both they and those providing information to them were accorded immunity from liability and damages under any law of the United States or any state, with the exception only where the health-care provider knowingly provided false information. 42 U.S.C. § 11111. Section 11111(a)(1) provides in pertinent part:

Limitation on damages for professional review actions

If a professional review action (as defined in section 11151(9) of this title) of a professional review body meets all the standards specified in section 11112(a) of this title, except as provided in subsection (b)[] of this section—
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body, and
(D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any of the United States or of any State (or political subdivision thereof) with respect to the action....

A reading of the above provisions clearly reveals two essential requisites must be met in order for a professional-review body to be entitled to the immunity authorized: (1) the body must be engaged in a professional-review action as defined in section 11151(9), and (2) it must meet all of the standards set out in section 11112(a). The only standard applicable to the issue before us is the first stated therein, requiring that the peer review be taken “in the reasonable belief that the action was in the furtherance of quality health care.” 42 U.S.C. § 11112(a)(1). The narrow question we must address is whether the HCQIA can be reasonably construed as authorizing peer review of a physician’s testimony given in a medical-malpractice action for the purpose of furthering the quality of health care. In our judgment, it cannot. This conclusion is made evident by the language of section 11151(9), defining professional-review action as

an action or recommendation of a pro- . fessional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action ....

(Emphasis added.)

It appears from our examination of the above statutes that the term professional-review action, as it relates to a formal decision of a review body to take or not take action, encompasses the review of the professional conduct of a physician that might affect his or her patient’s health, with the result that his or her right to clinical privileges or membership in a professional society could be impacted. Nothing in the provisions of the above statute, however, expressly or reasonably implies the professional body is empowered to review the quality of a physician’s testimony in a medical-malpractice proceeding.

In so concluding, we are not unaware that the Seventh Circuit Court of Appeals in Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), indicated in dicta that a professional-review body was authorized by the HCQIA to assess the quality of a physician’s testimony given in a medical-malpractice action. In Austin, a neurosurgeon was suspended from membership in the American Association of Neurological Surgeons, and he filed an action for damages and injunctive relief against the association, alleging that the suspension was in retaliation for his having testified as an expert witness for the plaintiff in a medical-malpractice action brought against another neurosurgeon, also a member of the Association. The Seventh Circuit affirmed the trial court’s entry of summary judgment against the neurosurgeon, and it concluded with the following observations:

We note finally that there is a strong national interest, which we doubt not that Illinois would embrace, in identifying and sanctioning poor-quality physicians and thereby improving the quality of health care. Although Dr. Austin did not treat the malpractice plaintiff for whom he testified, his testimony at her trial was a type of medical service and if the quality of his testimony reflected the quality of his medical judgment, he is probably a poor physician. His discipline by the Association therefore served an important public policy exemplified by the federal Health Care Quality Improvement Act, 42 U.S.C. §§ 11101 et seq., which encourages hospitals to conduct professional review of its staff members and report malpractice to a federal database. As an inducement to the vigorous performance of this reporting function, the Act immunizes hospitals from liability for disciplinary actions they take against staff physicians, provided only that the hospital is acting in good faith. See 42 U.S.C. §§ 11101, 11111,11112.

Id. at 974.

Although we take issue with the Seventh Circuit’s comments in Austin, implying that the HCQIA’s provisions include the authorization of a professional body’s review of the quality of a physician’s testimony in a malpractice action, we note several distinguishing facts in Austin from those at bar, the most notable being that Dr. Fullerton, unlike Dr. Austin, was not a member of the professional association that entertained a complaint to discipline him. Therefore, even if the statutes could be interpreted as permitting peer review of a member physician’s malpractice testimony, the FMA had no cause under the circumstances to subject Dr. Fullerton to its discipline.

REVERSED and REMANDED.

KAHN, C.J., and VAN NORTWICK, J., concur.

      . The exception provided in subsection (b) is irrelevant to the resolution of the issue before us in that it involves the failure of a health eare entity to report required information— facts that are not alleged in the instant case.


text:
    Sylvester L. BROWN, Petitioner, v. Charlie CRIST, Respondent.
    No. 1D06-0671.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2006.
    Sylvester L. Brown, Petitioner, pro se.
    Charlie Crist, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We deny on the merits, without discussion, the petition for a writ of certiorari seeking review of the trial court’s order denying a petition for a writ of mandamus challenging a forfeiture of gain-time. However, because the trial court proceeding was a “collateral criminal proceeding,” it was exempt from the lien provisions of section 57.085, Florida Statutes (2005). See Schmidt v. Crusoe, 878 So.2d 361 (Fla. 2003). Accordingly, we vacate the trial court’s order to the extent it placed a lien on petitioner’s inmate trust account.

ERVIN, WEBSTER, and HAWKES, JJ., concur.


text:
    James A. VAUGHN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2148.
    District Court of Appeal of Florida, First District.
    Sept. 7, 2006.
    James A.Vaughn, pro se, Petitioner.
    Charlie Crist, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Huffman v. State, 813 So.2d 10 (Fla.2000).

ALLEN, WEBSTER, and DAVIS, JJ., concur.


author: PER CURIAM. BENTON, J.,

text:
    Roberto RODRIGUEZ, Appellant, v. FLORIDA PAROLE COMMISSION, James R. McDonough, Secretary, Florida Department of Corrections, Appellees.
    No. 1D06-3262.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2006.
    Rehearing Denied Dec. 7, 2006.
    Andrew F. Rier, Miami, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

We conclude that the notice of appeal herein was not timely filed and, therefore, dismiss the appeal for lack of jurisdiction. The post-judgment motion filed by counsel was not timely, and therefore did not suspend rendition of the circuit court’s final order. See Fire & Casualty Ins. Co. of Conn. v. Sealey, 810 So.2d 988 (Fla. 1st DCA 2002). Because appellant was represented by counsel, the pro se “Motion for Relief from Judgment” was a legal nullity. See Marsh v. State, 919 So.2d 540 (Fla. 3d DCA 2005); Booker v. State, 807 So.2d 800 (Fla. 1st DCA 2002). As such, the pro se motion likewise did not postpone rendition of the trial court’s final order.

APPEAL DISMISSED.

KAHN, and LEWIS, JJ., concur.

BENTON, J., DISSENTS WITH OPINION.

BENTON, J.,

dissenting.

I would deem counsel’s motion for rehearing timely, treating it as an adoption of appellant’s clearly timely pro se motion for relief from judgment, which was in the nature of a motion for rehearing. The trial court had acted on neither motion when the notice of appeal was filed, so the previously entered order denying extraordinary relief (to which the motions were addressed) was, in my view, “rendered by the filing of the notice of appeal.” Fla. RApp. P. 9.020(h)(3).


text:
    Rickie MATHIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1066.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2006.
    Rehearing Denied Dec. 6, 2006.

      Robert Augustus Harper, Robert Augustus Harper, III, and Jonathan Mitchell Kester of Harper & Harper Law Firm, P.A., Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Rickie Mathis, appeals the trial court’s non-summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850, arguing that the trial court erred in concluding that his trial counsel did not render ineffective assistance by failing to request a jury instruction on the justifiable use of non-deadly force. Because we agree, we reverse and remand for a new trial.

Appellant was charged by information with aggravated battery on a fellow inmate at the county jail, in the commission of which he allegedly either used a deadly weapon or intentionally caused great bodily harm, permanent disability, or permanent disfigurement. In his opening statement at trial, appellant’s counsel argued that appellant was provoked by the victim on the day in question and was “basically defending himself.” While the victim and a correctional officer testified that appellant was the aggressor and hit the victim with both a mop wringer and his fists multiple times, several inmates who shared a cell block with both appellant and the victim testified that the victim was the aggressor and cut his hand when appellant grabbed the mop wringer from him and that they saw appellant hit the victim with only his fists. Similarly, appellant testified that the victim was the aggressor and began the fight by charging him and grabbing the mop wringer, which appellant snatched away from him. According to appellant, during the ensuing fight, he “was getting the short end of the stick” and his “wind [was] getting short on [him],” so he hit the victim with his fists. Appellant maintained that he never hit the victim with the mop wringer, although it did cut the victim’s hand while they were struggling over it.

In his closing argument, appellant’s counsel argued that all the State had proven was that there was a fist fight on the day in question, which would only support a simple battery charge. He advised the jury that if it were to conclude that there was a fight but that the mop wringer was not used as a weapon to beat the victim’s head, it should return a verdict of simple battery. Appellant’s counsel further argued that appellant “was acting in self-defense” and “should not be punished any more for defending himself’ and advised the jury:

[W]hen the defense is self-defense, and when [the victim] started it, then the conclusion is that [appellant] was defending himself. And even though during the struggle he hit [the victim] against his will, [the victim] started it, and therefore the only verdict in that instance to be returned is a verdict of not guilty against [appellant].

Appellant’s counsel requested a jury instruction on the justifiable use of deadly force, but the trial court denied that request on the ground that appellant’s theory of the case was that he did not use deadly force. No instruction on the justifiable use of non-deadly force was requested on the record, and appellant’s counsel did not object to the jury instructions as read, which did not include an instruction regarding the justifiable use of either deadly or non-deadly force. The jury ultimately found appellant guilty of aggravated battery as charged. Appellant was convicted and sentenced as a habitual violent felony offender to fifteen years’ imprisonment with a ten-year minimum mandatory. We affirmed the conviction and sentence on direct appeal. See Mathis v. State, 683 So.2d 582, 583 (Fla. 1st DCA 1996) (en banc).

Appellant subsequently filed a motion for postconviction relief, arguing in part that his trial counsel was ineffective for failing to request a jury instruction on the justifiable use of non-deadly force. The trial court summarily denied the motion. We reversed the summary denial of that claim and remanded the cause for the trial court to either attach record portions conclusively refuting that claim or conduct an evidentiary hearing, reasoning that a claim that counsel was ineffective for failing to request a self-defense instruction is cognizable in a rule 3.850 motion and that from the limited record before us, it appeared that appellant was entitled to an instruction on the justifiable use of non-deadly force. See Mathis v. State, 863 So.2d 464, 464-65 (Fla. 1st DCA 2004).

At the evidentiary hearing on remand, Tony Bajoczky, an attorney who was accepted as an expert in criminal defense trial work, testified that he had reviewed the record in this case and opined that appellant’s trial counsel was ineffective. Bajoczky believed that, based on the testimony presented by the defense that the victim was the aggressor, a self-defense issue was clearly presented at appellant’s trial and that appellant’s trial counsel should have requested the instruction at issue, especially given that self-defense was a main theory of his argument. Ba-joczky noted that the jury did not have the option of considering a self-defense theory of the case without the instruction and opined that the result of appellant’s trial would probably have been different if the instruction had been requested and given. Bajoczky could not think of a tactical reason why appellant’s trial counsel would have decided not to request an instruction on the justifiable use of non-deadly force.

The State did not present any evidence at the hearing. Rather, it relied on the transcript of appellant’s trial and the prosecutor’s arguments that the trial court properly denied appellant’s trial counsel’s request for an instruction on the justifiable use of deadly force because appellant denied using deadly force and that a justifiable use of non-deadly force defense would not have applied to aggravated battery but only to the lesser included offense of simple battery. Thus, the prosecutor contended that appellant had not proven any likelihood that the outcome of his trial would have been different if the instruction at issue had been given.

Following the hearing, the trial court issued the order at issue on appeal, in which it found that although defense counsel argued self-defense to the jury, “the record is clear that the entire defense was based on the position that [appellant] never struck the victim with a mop wringer or mop bucket.” It concluded that appellant’s trial counsel could not be deemed ineffective “for arguing that no mop bucket or mop wringer was used by [appellant] to batter [the victim] and not asking for an instruction that would run contrary to the defense presented.” Accordingly, appellant’s motion was denied. This appeal follows.

In order to prevail on a claim of ineffective assistance of trial counsel, a defendant must demonstrate (1) that counsel’s performance was outside the wide range of reasonable professional assistance, and (2) that such conduct prejudiced the outcome of the trial because without it, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So.2d 52, 61 (Fla.2003); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Spencer, 842 So.2d at 61. Both the performance prong and the prejudice prong of the Strickland analysis involve mixed questions of law and fact, and only the trial court’s factual findings are to be given deference by appellate courts. Stephens v. State, 748 So.2d 1028, 1038 (Fla.1999). Thus, the standard of review of the trial court’s findings of fact is whether they are supported by competent, substantial evidence, while the trial court’s legal conclusions are subject to de novo review. See id. at 1033-34.

A claim that trial counsel was ineffective for failing to request a jury instruction on self-defense is cognizable in a rule 3.850 motion. See Mathis, 863 So.2d at 464. “Upon request, a defendant is entitled to a jury instruction on any theory of defense the substantive evidence supports, however weak or improbable his testimony may have been.” Mathews v. State, 799 So.2d 265, 266 (Fla. 1st DCA 2001). Trial courts are to decide whether to give a particular jury instruction without weighing the evidence because doing so is the sole prerogative of the jury. Id. When the evidence presented at trial does not establish as a matter of law whether the force used by the defendant was deadly or non-deadly, the question is a factual one to be decided by the jury, and the defendant is entitled to jury instructions on the justifiable use of both types of force. Mathis, 863 So.2d at 465; Mathews, 799 So.2d at 266; Williams v. State, 727 So.2d 1062, 1062-63 (Fla. 4th DCA 1999). The only type of force that has been held to be deadly as a matter of law is the discharge of a firearm. Mathis, 863 So.2d at 465; Mathews, 799 So.2d at 266; Williams, 727 So.2d at 1062. Defense counsel’s failure to request a jury instruction “has been deemed to be an ‘unreasonable omission which severely prejudiced his client’s case’ where the error complained of ‘negated the only defense put forth by trial counsel.’ ” Platt v. State, 697 So.2d 989, 991 (Fla. 4th DCA 1997) (citations omitted); see also Cabrera v. State, 766 So.2d 1131, 1134 (Fla. 2d DCA 2000) (citing Platt for the same proposition and concluding that, in the absence of another viable defense, counsel’s failure to pursue an entrapment defense constituted ineffective assistance of counsel because such substandard performance deprived the defendant of his sole defense and the opportunity to corroborate the defense).

Here, because appellant did not use a firearm during the fight with the victim, the force he used was not deadly as a matter of law, and the factual question of whether the force was deadly or non-deadly was to be decided by the jury. Thus, because appellant presented evidence supporting a self-defense theory at trial, he should have been entitled to jury instructions on the justifiable use of both deadly and non-deadly force had both instructions been requested. See Mathews, 799 So.2d at 266; Williams, 727 So.2d at 1062-63. Appellant’s trial counsel apparently recognized the fact that the evidence supported a self-defense theory of the case as he argued in his opening and closing statements that appellant was acting in self-defense and that the jury should find him not guilty on that basis. Nonetheless, trial counsel did not request an instruction on the justifiable use of non-deadly force but only on the justifiable use of deadly force.

The trial court erred in concluding that such failure did not amount to deficient performance. Such conclusion was based on the trial court’s finding that appellant’s entire defense was based upon the theory that he did not hit the victim with the mop wringer. However, that finding is not supported by competent, substantial evidence, given that trial counsel clearly raised two alternative arguments in appellant’s defense. The first argument was that the State had only proven that appellant and the victim were in a fist fight, which would only justify a finding of guilt as to simple battery, rather than aggravated battery. The second was that because appellant was acting in self-defense, the jury should return a not guilty verdict. Contrary to the trial court’s conclusion, these arguments are not mutually exclusive of one another, and requesting an instruction on the justifiable use of non-deadly force would not have contradicted the contention that appellant did not hit the victim with a mop wringer. Although self-defense was not the sole defense argued by trial counsel, it was the only defense that could have resulted in an acquittal. Without being instructed on the justifiable use of non-deadly force, the jury was not given the option of finding appellant not guilty on self-defense grounds. Thus, trial counsel’s failure to request the instruction at issue constituted deficient performance that prejudiced appellant because but for such conduct, there is a reasonable probability that the outcome of the trial would have been different. See Platt, 697 So.2d at 991; Cabrera, 766 So.2d at 1134.

Although the State argues that Ba-joczky’s expert testimony was insufficient to establish that trial counsel’s failure to request the instruction at issue was not a reasonable strategic or tactical decision because such determination was a conclusion to be made by the trial court, once a defendant makes the required showing under Strickland, an objective basis for trial counsel’s actions must be found within the record to justify counsel’s performance and thereby rebut the defendant’s claim on the ground that counsel’s conduct was strategic. See State v. Duncan, 894 So.2d 817, 824 (Fla.2004). If the record itself does not provide such justification, a court has no choice but to require the State, as well as the attorney whose performance is in question, to answer the defendant’s allegations. Id. Here, the record does not provide any objective basis justifying trial counsel’s conduct or indicating that his decision not to request the instruction was a strategic one, and the State did not present any evidence at the evidentiary hearing. Moreover, even if appellant’s trial counsel would have categorized his decision as a strategic one, arguing that the jury should find appellant not guilty because he was acting in self-defense and then failing to request an instruction on that theory was patently unreasonable and, thus, subject to collateral attack. See Roesch v. State, 627 So.2d 57, 58 n. 3 (Fla. 2d DCA 1993) (“Tactical decisions generally are for counsel to make and will not be second-guessed unless shown to be patently unreasonable.”).

Accordingly, we REVERSE the trial court’s order denying appellant’s motion for postconviction relief, and REMAND for a new trial on the aggravated battery charge.

KAHN, BENTON, and LEWIS, JJ„ concur.

      . Because the verdict form is a general one, it is unclear whether it found, that appellant used a deadly weapon or that he intentionally or knowingly caused great bodily harm.

      . Although the trial court also erred in denying trial counsel's request for an instruction on the justifiable use of deadly force, that specific issue is not presently before us.


text:
    Rayvon BOATMAN, Petitioner, v. James R. McDONOUGH, et al., and/or successor in office; Florida Department of Corrections; M. Rathmann, et al., Respondents.
    No. 1D06-2914.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2006.
    Rayvon Boatman, pro se, Petitioner.
    No appearance for Respondents.
   ORDER IMPOSING SANCTION

PER CURIAM.

In the petition for writ of prohibition filed in this case number, Rayvon Boatman sought an order of this court disqualifying the circuit judge who is presiding over a civil action pending in the lower tribunal. The petition was found to be facially insufficient and was denied without comment on September 25, 2006. At the same time, an order was issued which directed Boatman to show cause why sanctions should not be imposed against him. This order noted that Boatman had appeared in this court as appellant or petitioner in at least 48 cases since 1997. The vast majority of those cases were dismissed without a disposition on the merits due to Boatman’s failure to timely comply with the Florida Rules of Appellate Procedure, orders of this court, or both. This court has considered the response of petitioner to the order to show cause but finds that it fails to demonstrate why a sanction is not appropriate.

We therefore find that the imposition of a sanction against Rayvon Boatman is appropriate. See Martin v. State, 833 So.2d 756 (Fla.2002); Lee v. Fla. Dep’t of Corr., 873 So.2d 489 (Fla. 1st DCA 2004); Attwood v. Eighth Circuit Court, Union County, 667 So.2d 356 (Fla. 1st DCA 1995); Peterson v. State, 530 So.2d 424 (Fla. 1st DCA 1988). It is hereby ordered that Rayvon Boatman shall secure the filing of a notice of appearance by a member in good standing of the Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within ten days of date of this order, failing which such cases shall be dismissed. Further, the clerk of this court is directed to accept no further pro se filings from Boatman; if received, they shall be returned to him without filing and with a reference to this order.

IT IS SO ORDERED.

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    Alan M. O’NEAL and A & J Holdings, LLC, a Florida Limited Liability Company, Petitioners, v. Robert E. BLACKERBY; Florida Bahama Group, LLC, a Florida Limited Liability Company; and Robert Blackerby & Associates, LLC, an Alabama Limited Liability Company and William H. Smith, South Walton Properties, LLC, a Florida Limited Liability Company; BAB Developers, LLC, a Florida Limited Liability Company, BAB Developers I, LLC, a Florida Limited Liability Company; BAB Developers II, LLC, a Florida Limited Liability Company; BAB Developers III, LLC, a Florida Limited Liability Company; BAB Developers IV, LLC, a Florida Limited Liability Company; BAB Developers V, LLC, a Florida Limited Liability Company; BAB Developers VI, LLC, a Florida Limited Liability Company; BAB Developers VII, a Florida Limited Liability Company; BAB I, LLC, a Florida Limited Liability Company; and BAB II, LLC, a Florida Limited Liability Company, Respondents.
    No. 1D06-2972.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2006.
    Rehearing Denied Jan. 26, 2007.
    J. Nixon Daniel, III, Mary Jane Bass, and Terrie L. Didier of Beggs & Lane, Pensacola; Major B. Harding and John R. Beranek of Ausley & McMullen, P.A., Tallahassee, for Petitioners.
    Jeffrey P. Whitton, Panama City; W. Dexter Douglass and Thomas Porter Crapps, Tallahassee; Philip A. Bates, Pensacola; and Martha Blackmon-Milligan, Panama City, for Respondents Robert E. Blackerby, Florida Bahama Group, LLC, and Robert Blackerby & Associates, LLC.
   PER CURIAM.

The petitioners challenge an order granting sanctions and a warrant for civil contempt. Because underlying orders have been reversed, the certiorari petition is granted and the challenged orders are quashed.

We do not doubt the trial court’s authority to resort to civil contempt in an appropriate case. We have quashed the civil contempt order only because the underlying orders with which it was designed to compel compliance have themselves been reversed.

No litigant is at liberty to pick and choose which court orders to obey and which to disregard. The failure to comply with a court order may be the basis for criminal contempt proceedings. Every litigant subject to a court order must comply with the order or appeal it and, even when review has been sought, is under a duty to comply with any court order that has not been stayed or reversed.

ALLEN, BENTON, and HAWKES, J.J., concur.


text:
    Dennis WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-4381.
    District Court of Appeal of Florida, First District.
    Feb. 8, 2007.
    Rehearing Denied March 26, 2007.
    Dennis Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal is denied as untimely. See Fla. R.App. P. 9.141(c)(4)(A).

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    K.W., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent.
    No. 1D07-0304.
    District Court of Appeal of Florida, First District.
    Feb. 21, 2007.
    Nancy A. Daniels, Public Defender, and John W. Hedrick, Assistant Public Defender, Tallahassee, for Petitioner.
    Bill McCollum, Attorney General, and Judy Bone, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of habeas corpus is dismissed as moot.

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


text:
    Julio MORA, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D05-0985.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2007.
    Rehearing Denied April 11, 2007.
    Julio Mora, pro se, Appellant.

      Bill McCollum, Attorney General, and Shelly L. Marks, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER IMPOSING SANCTION

PER CURIAM.

On October 4, 2006, this court directed appellant to show cause why he should not be prohibited from filing any further pro se pleadings with this court unless reviewed and signed by an attorney licensed to practice in the State of Florida. No response to this order has been received. Therefore, it is hereby ordered that Julio Mora shall secure the filing of a notice of appearance by a member in good standing of the Florida Bar in any active case now pending before this court in which he appears as appellant or petitioner within 10 days of the date of this order, failing which such eases shall be dismissed. Further, the clerk of this court is directed to accept no further pro se filings from Mora. If received, they shall be returned to him without filing and with a reference to this order.

IT IS SO ORDERED.

WOLF, PADOVANO, and THOMAS, JJ., concur.


text:
    ST. LUCIE COUNTY SCHOOL BOARD and EMI, Appellants, v. Sharon RICHARDS, Appellee.
    No. 1D05-4966.
    District Court of Appeal of Florida, First District.
    April 30, 2007.
    Neil J. Hayes and Jane E. McGill of Hayes, Schloss & Alcocer, P.A., Palm Beach Gardens, for Appellants.
    Debra H. Pierce, Port St. Lucie, and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, St. Lucie County School Board and EMI, its carrier, appeal a final order of the judge of compensation claims (JCC) granting medical benefits to Sharon Richards, appellee and claimant below, under the so-called 120-day rule, section 440.20(4), Florida Statutes (2002). For the reasons that follow, we reverse and remand for further proceedings.

Sharon Richards was working as an elementary school speech pathologist when she fell at work on March 4, 2002. The accident was accepted as compensable, and Richards was authorized to be treated by the neurologist from whom she had previously obtained treatment for neck pain and headaches. After providing indemnity as well as medical benefits, the employer and carrier notified the claimant in December 2005 that any continuing need for medical treatment was no longer causally connected to her workplace accident and that, as a result, she should seek medical treatment outside of the worker’s compensation system. Richards thereafter filed a petition for benefits which the employer and carrier controverted on the ground that the accident is not the major contributing cause of Richards’ need for medical treatment.

At the merits hearing which followed, Richards indicated in her opening remarks that benefits were being sought pursuant to the 120-day rule, codified at section 440.20(4), Florida Statutes (2002), among other grounds. There was no objection lodged by the employer and carrier, even though Richards had not previously listed the 120-day rule in her pre-trial stipulation. Following the hearing, the JCC issued an order granting medical benefits on the authority of the 120-day rule, although the Judge accepted the opinion of the treating physician that the workplace accident was not the major contributing cause of Richards’ need for treatment.

A claimant is entitled to benefits only so long as the industrial injury remains the major contributing cause of the disability or need for treatment. § 440.09(l)(b), Fla. Stat. (2003); Checkers Rest. v. Wiethoff, 925 So.2d 348, 350 (Fla. 1st DCA 2006) (en bane); see Mims v. Confederated Staffing, 940 So.2d 518 (Fla. 1st DCA 2006). Although Checkers was not yet decided when the JCC issued the order on appeal, its holding is applicable in this case, and its application might affect the JCC’s ruling. Accordingly, we reverse the JCC’s rulings and remand for reconsideration of the claim in light of Checkers.

REVERSED AND REMANDED.

BROWNING, C.J., BARFIELD, and VAN NORTWICK, JJ., concur.


text:
    Jonathan HENRY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-1627.
    District Court of Appeal of Florida, First District.
    May 9, 2007.
    Jonathan Henry, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BROWNING, C.J., POLSTON and HAWKES, JJ., concur.


text:
    Jann Kimberly HURST, n/k/a Jann Kimberly Papiernik, Appellant, v. Barry Lee HURST, Appellee.
    No. 1D07-0430.
    District Court of Appeal of Florida, First District.
    May 25, 2007.
    Steven P. Combs of Smith Green & Combs, Jacksonville, for Appellant.
    A. Russell Smith, Jacksonville, for Ap-pellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of February 1, 2007, the Court has determined that because the Order Regarding Former Wife’s Motion for Clarification merely reiterates provisions contained within the previously entered Consent Final Judgment, the order on appeal is not an appealable order. Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

BARFIELD, KAHN, and PADOVANO, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Louisa M. JAAR, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3516.
    District Court of Appeal of Florida, Second District.
    July 27, 2007.
    John H. Trevena, Largo, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Coombs Cline, As-

      sistant Attorney General, Tampa, for Ap-pellee.
   NORTHCUTT, Chief Judge.

Louisa Jaar is a Canadian citizen who, in 1998, pleaded nolo contendere to charges of grand theft, a third-degree felony, and trespass, a first-degree misdemeanor, in Pinellas County. When the circuit court accepted her pleas, it did not advise her of the possible deportation consequences. See Fla. R.Crim. P. 3.172(c)(8). After deportation proceedings were instituted against Jaar in late 2005, she moved to withdraw the pleas. See Fla. R.Crim. P. 3.850(a)(5). She appeals the postconviction court’s denial of that motion. We reverse.

Before accepting a defendant’s plea of guilty or nolo contendere, the court must be satisfied that the plea is being entered voluntarily. Fla. R.Crim. P. 3.172(a). Rule 3.172(c)(8) specifically requires the court to ensure that the defendant understands that the plea may subject her to deportation if she is not a United States citizen. Under case law prevailing at the time Jaar filed her postconviction motion, a defendant who sought relief based on the court’s failure to comply with this rule was required to establish that: (1) she did not know the plea might result in deportation; (2) she was being threatened with deportation because of the plea; (3) if she had known of the potential deportation consequence, she would not have entered her plea; and (4) she was prejudiced by the circuit court’s failure to determine whether she understood the potential consequence of deportation. See State v. Seraphin, 818 So.2d 485, 487-88 (Fla.2002); Peart v. State, 756 So.2d 42, 47 (Fla.2000), receded from by State v. Green, 944 So.2d 208 (Fla.2006).

In Jaar’s case, it was undisputed that the circuit court did not follow the requirements of rule 3.172(c)(8) when it accepted her plea. At the hearing on her postcon-viction motion, Jaar testified that she moved to this country with her family in 1972, when she was nine years old. When she entered her plea to the criminal charges in 1998, she believed that she was a “permanent resident” of the United States and that this status allowed her to work, go to school, and live in this country. As a permanent resident, she did not think she was subject to deportation. Jaar further stated that her lawyer did not discuss the deportation consequences with her and that she did not remember the subject being addressed in her written plea agreement. She affirmed that she was unaware that her plea might lead to deportation, and she declared that she would not have entered a plea if she had known that fact.

An immigration attorney then testified as an expert witness. The attorney opined that Jaar would not be deported if her 1998 convictions were vacated.

In denying Jaar’s request for relief, the postconviction court noted that Jaar had believed she could not be deported because she was a permanent resident of the United States. Based on that fact, the court found it improbable that Jaar would have refused to enter a plea if she had been advised of the possibility of deportation, citing Seraphin, 818 So.2d 485; Johnson v. State, 760 So.2d 992 (Fla. 2d DCA 2000); and State v. Rajaee, 745 So.2d 469 (Fla. 5th DCA 1999). For this reason, the court ruled that Jaar had failed to prove she was prejudiced by the court’s failure to advise her of the deportation consequences.

The cases on which the postconviction court relied are distinguishable from Jaar’s case on a crucial point: Seraphin, Johnson, and Rajaee mistakenly believed that they were citizens of the United States, or they were confused about their citizenship status. As we noted in Johnson, there was no reason to suspect that a warning about the possibility of deportation would have altered Johnson’s decision to plead because Johnson, believing himself to be a citizen, would not have thought the warning applied to him. Any prejudice would have stemmed from his own mistake about his citizenship, not from the court’s failure to advise him. 760 So.2d at 993.

Jaar, on the other hand, knew she was not a United States citizen. The purpose of rule 3.172(c)(8) is to put a defendant on notice that she should understand her citizenship status and that, if doubts exist, she should resolve them before entering a plea. See Seraphin, 818 So.2d at 489; Rajaee, 745 So.2d at 470. Jaar’s is exactly the sort of case in which the warning could have raised red flags and prompted an inquiry. The postconviction court’s speculation that Jaar would have pleaded even if she had notice and its inference that she would have forgone investigation of her status were refuted by Jaar’s undisputed testimony that she would not have entered the plea if she had known that it might subject her to deportation. Jaar established the prejudice required under Peart, 756 So.2d at 47.

We reverse the order denying Jaar’s motion for postconviction relief and remand with direction that she be permitted to withdraw her 1998 pleas.

WHATLEY and CANADY, JJ„ Concur.

      . Green now requires that a motion alleging a violation of rule 3.172(c)(8) must be filed within two years of the date that the judgment and sentence or order withholding adjudication becomes final. 944 So.2d at 218. Jaar's motion was filed in February 2006, before the Florida Supreme Court decided Green, so the new time limit for filing does not apply here. Green also lessened the pleading requirements, such that a defendant no longer must allege a specific threat of deportation. An allegation that the plea subjects the defendant to deportation is sufficient. Id. Jaar’s motion was facially sufficient under the requirements applicable at the time she filed it.


text:
    Keith Shawn HANKS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-2197.
    District Court of Appeal of Florida, First District.
    Aug. 27, 2007.
    Keith Shawn Hanks, pro se, Appellant.
    Bill McCollum, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989) (holding that lack of access to a law library does not show good cause for failure to timely file a notice of appeal).

DAVIS, POLSTON, and ROBERTS, JJ., concur.