author: PER CURIAM. VILLANTI, Judge,

text:
    STATE of Florida, Appellant, v. Tony PRUITT, Appellee.
    No. 2D06-4006.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2007.

      Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Timothy J. Ferreri, Assistant Public Defender, Bartow, for Appellee.
   PER CURIAM.

The State challenges the trial court’s order granting Tony Pruitt’s motion to suppress the evidence obtained in a search of his home. We reverse.

During the course of an ongoing investigation of a large-scale heroin trafficking operation conducted by the St. Petersburg Police Department (“Department”) in cooperation with the United States Drug Enforcement Agency (“DEA”) and the Organized Crime Drug Enforcement Task Force (OCDETF), Tony Pruitt was identified as a key participant in that operation and as a distributor of heroin in the St. Petersburg area. After further investigation involving confidential informants, controlled buys of narcotics, and warrant-authorized wiretaps, the Department had enough information to seek a warrant to search Pruitt’s home for further evidence of his drug trafficking business. The warrant was issued, and at 5:15 a.m., on January 6, 2004, the St. Petersburg Tactical Apprehension and Control Team (TACT) executed it. In doing so, TACT waited twelve seconds after knocking and announcing their purpose before forcibly entering the home. The subsequent search resulted in the seizure of two firearms, marijuana, heroin, electronic scales, currency, and documents.

Pruitt filed a motion to suppress the evidence seized in the search on the basis that the forced entry violated Florida’s knock-and-announce statute, section 933.09, Florida Statutes (2003). The trial court agreed, holding that the twelve-second delay between the knock and announce and TACT’s entry was insufficient, and granted Pruitt’s motion to suppress the evidence.

In its appeal, the State argues that there were exigent circumstances justifying the short delay between announcing and forcing entry, specifically law enforcement’s knowledge that Pruitt was a suspect in a murder investigation in which the murder weapon was an AK-47. Alternatively, the State argues that based on the recent United States Supreme Court case, Hudson, v. Michigan, — U.S. -, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), suppression of the evidence was error even if the time between knocking and announcing and the actual entry was too short.

Our review of a trial court’s ruling on a motion to suppress evidence involves a mixed question of law and fact. We accord a presumption of correctness with regard to the trial court’s determination of facts where the trial court’s factual findings are supported by competent, substantial evidence. However, we review the trial court’s application of the law to those facts de novo. Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Connor v. State, 803 So.2d 598 (Fla.2001).

Section 933.09 states:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Two requirements are imposed by the statute. First, law enforcement must announce them authority and purpose. Richardson v. State, 787 So.2d 906, 908 (Fla. 2d DCA 2001). Second, before law enforcement may forcibly enter the home, they must have been refused admittance. Id. “Refusal can be express or implied, and lack of response is deemed a refusal.” Id. Rarely is the first requirement not met. Thus the question typically then arises in conjunction with the second requirement, i.e., how much time should be allowed before the lack of response may be deemed by law enforcement officers at the scene to be a refusal. There is no bright line answer; the only answer found in our case law is that the occupant must have a “reasonable opportunity” to respond. Id. at 908; Holloway v. State, 718 So.2d 1281, 1282 (Fla. 2d DCA 1998). “Time periods less than five seconds are rarely deemed adequate, and periods in excess of fifteen seconds are often adequate.” State v. Cassells, 835 So.2d 397, 399 n. 2 (Fla. 2d DCA 2003); see also Richardson, 787 So.2d at 907 (holding that ten-second wait before forcible entry into cocaine dealer’s home at 5:30 a.m. and with no indication of exigent circumstances was not long enough); State v. Robinson, 565 So.2d 730, 732 (Fla. 2d DCA 1990) (holding that wait of only “a few seconds” before entering was too short where there were no exigent circumstances); Kellom v. State, 849 So.2d 391, 394 (Fla. 1st DCA 2003) (holding that delay of approximately five seconds was not enough); cf. United States v. Banks, 540 U.S. 31, 38, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (holding that delay of fifteen to twenty seconds did not violate the knock- and-announce rule); Braham v. State, 724 So.2d 592, 594 (Fla. 2d DCA 1998) (holding that five to ten seconds between the knock-and-announee and forced entry in early morning execution of search warrant was reasonable where the officers heard movement within, residence was a small trailer, phone was ringing, and no one responded verbally); Hernandez v. State, 863 So.2d 484 (Fla. 4th DCA 2004) (holding that fifteen seconds was reasonable when footsteps were heard within the residence but no one responded to the door).

In this case, the TACT commander testified that he waited “about” twelve seconds after his initial knock and announce before calling for a breach of the door of the residence and that, based on his training and experience, twelve seconds was a reasonable amount of time for a person inside the home to respond to his knock and announcement of authority. The State also argues that the twelve-second delay was reasonable given the small size of the house and the fact that Pruitt could have easily answered the door in that amount of time. However, the trial court likened the delay in this case to the ten-second delay in Richardson, 787 So.2d 906, concluding that there was insufficient time to respond at an hour when the occupants were most likely asleep and no sounds were heard coming from within the house.

The problem with attempting to analyze whether the time delay was long enough so as to be in compliance with section 933.09 is that there is insufficient case law covering the plethora of factual permutations, such as the fact pattern in this appeal, that might occur in any given case. In Hudson, 126 S.Ct. at 2163, the Court noted that “[w]hen the knoek-and-announce rule does apply, it is not easy to determine precisely what officers must do. How many seconds’ wait are too few? Our ‘reasonable wait time’ standard is necessarily vague.” (Citation omitted.) For the most part, Florida opinions either hold that the time delay is too short and conclude that the police violated the knoek- and-announce rule or find that exigent circumstances were present excusing compliance with the rule. Hernandez, 863 So.2d 484, and Braham, 724 So.2d 592, appear to be exceptions, but in both cases the finding that the rule was not violated was nevertheless heavily influenced by the circumstances. In the instant case, the trial court found it “unreasonable to expect a sleeping occupant of even a small home to open the front door within twelve seconds.” Giving deference to the trial court’s factual finding that twelve seconds was insufficient time to allow Pruitt a reasonable oppoi'tunity to respond, we turn to the question of whether the premature entry was nevertheless justified by exigent circumstances.

There are four exceptions to the reasonable time requirement of the knock- and-announce rule: (1) the occupant already knows of the officers’ authority and purpose, (2) there is a reasonable belief that persons within are in peril of bodily harm, (3) the officers’ peril would increase, and (4) the occupants might attempt to escape or to destroy the evidence. Kellom, 849 So.2d at 395 (citing Benefield v. State, 160 So.2d 706, 710 (Fla.1964)). The pertinent exception in this case is the officer peril exception, based on the information that Pruitt was suspected of using an AK-47 in a murder six months earlier and on his history of criminal violence. The State’s claim of exigent circumstances based on officer safety is summed up in its response to Pruitt’s motion to suppress:

At 5:15 a.m. on January 6th, 2004, the Tactical Apprehension and Control Team (TACT) executed a high risk search warrant at 1000 13th Street North in St. Petersburg after knocking and announcing and then delaying 12 seconds before entering by breaching the door with a battering ram while simultaneously detonating a distraction device in the kitchen. This was done pursuant to a lawfully executed search warrant....
The TACT team is St. Petersburg’s version of a SWAT team and they are utilized to execute search warrants only “with high-risk situations, barricaded subjects, hostage rescue, things of that nature” according to the testimony of Damian Schmidt.[] According to Schmidt this was a “high risk situation in which information was given fitting the criteria where firearms or the subject involved is known to use violence.”
At the time that the TACT team entered, they were aware that the subject known to live in the residence was a violent felon and the suspect in a homicide involving the use of an AK-47 in the past 6 months. The TACT team’s body armor was not capable of stopping-rounds from an AK-47.
Although the TACT team did not have an exact diagram of the residence, they knew from surveillance that the residence was a small single story house. Based on the time given after the initial knock-and-announce, it was the opinion of the knocking officer that the residence had been given sufficient time to answer the door in this small house. It was his further stated opinion based on the circumstances presented that the TACT team was exposed to danger at the front of the house after 12 seconds, which is why he called for the breach of the front door. Upon entering the residence a woman was located on the couch within 10 feet of the front door where the officers were knocking.

During the suppression hearing, the TACT commander described the situation he was faced with on the scene:

And now as time expanded, when I got up to 10 and I’m counting 11, 12, now the team has been compromised to a degree that they know we are out here, so now the risk definitely increases where we may return fire, or the people inside are either barricading themselves or possibly destroying evidence.

In its order, the trial court did not question the veracity or credibility of the information pertaining to Pruitt’s alleged use of an AK-47 in a murder but concluded only that this information was stale as a matter of law. The trial court also noted that “neither the warrant nor the supporting affidavit make mention of firearms being located in the residence or the fact that the defendant has a history of violence.” The trial court noted further that Pruitt had not yet been charged with the homicide at the time of the raid, and that although TACT may have been informed that Pruitt had a record of violent crimes, “no specific information regarding the defendant’s alleged violent history was brought out at the hearing....” (Emphasis added.) The trial court ultimately concluded (1) that twelve seconds was insufficient time to allow for a response “even in a small home,” (2) that the information regarding the suspected murder using the AK-47 was stale, and (3) that the information regarding Pruitt’s prior violent crimes was unsupported by the affidavit or warrant. Based on this, the trial court concluded that there were “no particularized facts giving rise to a reasonable belief that the officers would be in greater peril had they complied with section 933.09.”

As the trial court correctly stated in its order, in order to invoke the officer peril exception to the knock-and-announce requirement, the police must have a reasonable basis to believe that they would face greater peril by complying with the requirement, see Holloway, 718 So.2d at 1282, and this belief should be based on particularized facts, State v. Bamber, 630 So.2d 1048, 1054 (Fla.1994). In this case, the TACT commander counted to twelve but, as his testimony indicated, felt that since no response was forthcoming from within, his team was now at greater risk and the occupants might be preparing to resist or to destroy evidence. However, if the commander truly felt that the circumstances required the type of overwhelming surprise which might be necessary when entering a dangerous situation, one might question why he chose to count to twelve in the first place. We can only surmise that he thought that by doing so he would be in compliance with the knock-and-announce rule. This is a dilemma created by the courts. Discussing this dilemma, the Supreme Court in Hudson, 126 S.Ct. at 2163, noted that in Banks, 540 U.S. 31, 124 S.Ct. 521, it had held that:

The proper measure was not how long it would take the resident to reach the door, but how long it would take to dispose of the suspected drugs-but that such a time (15 to 20 seconds in that case) would necessarily be extended when, for instance, the suspected contraband was not easily concealed. [Banks, 540 U.S.] at 40-41, 124 S.Ct. 521. If our ex post evaluation is subject to such calculations, it is unsurprising that, ex ante, police officers about to encounter someone who may try to harm them will be uncertain how long to wait

(Emphasis added.) In a recent opinion of this court, Judge Villanti noted:

Because Florida does not authorize the issuance of no-knock warrants, Bamber, 630 So.2d 1048, the decision to enter on this basis can be made only after arrival at the scene.... The supervisor directing the execution of the warrant must have almost swami-like powers to get it right, and the supervisor’s decision is only as good as the information he is provided....
Under current case law, the time frame separating a “good” knock-and-announce case from a “bad” one, as this case demonstrates, can be as little as a few seconds.

Simmons v. State, 913 So.2d 19, 24 (Fla. 2d DCA 2005) (Villanti, J., concurring). One can only imagine the dilemma officers find themselves in when they feel compelled, in view of the imprecise case law employing a case-by-case totality analysis, to count seconds before entering while simultaneously being- aware of the occupant’s violent propensity. We are not aware of any Florida case that thoroughly discusses whether, in the presence of some exigency, some period of time is nevertheless necessary to wait prior to forcing entry. Therefore, it appears to us that when exigent circumstances are present, the amount of time preceding entry is less imperative. Here, it is difficult to believe that a known hard core drug dealer, suspected of possessing an AK-47 used by him to commit a murder, even if given an extra second or two, would gracefully respond by allowing police entry and access to evidence that could be used to imprison him.

The trial court correctly noted that if law enforcement fails to comply with section 933.09 on the basis of officer peril or any other exception, the information upon which the exception is claimed must have some temporal proximity to the execution of the warrant. See Holloway, 718 So.2d at 1282; Craft v. State, 638 So.2d 1011, 1014 (Fla. 2d DCA 1994). During the suppression hearing in Holloway, the officers testified that a confidential informant had implied that a firearm was present in the defendant’s house and that in 1986, Holloway had been convicted of armed robbery and battery on a law enforcement officer. 718 So.2d at 1282. However, the warrant leading to Holloway’s arrest was executed nearly ten years after Holloway’s armed robbery and battery convictions. Id. This court concluded that the ten-year-old convictions lacked temporal proximity and that a confidential informant’s mere implication that a firearm was present was insufficient to support the officer peril exception. Id. Similarly, in Craft, the information that Craft possessed a weapon was over two years old at the time of the execution of the warrant. 638 So.2d at 1013-14. This court held that this evidence “was too stale to provide a reasonable belief that there would be officer peril two years later.” Id. at 1014.

This case is distinguishable from Holloway and Craft. The information regarding the potential presence of the firearm here was not the product of stale information, a vague reference, or generalized knowledge; the knowledge was particularized and recent. Pruitt was under an ongoing active investigation for a murder committed with an AK-47. A six-month investigation prior to a felony arrest is not unusual when one considers that potential witnesses are likely either undercover or reluctant to testify because they are involved in the drug trade or know that their lives may be in danger if they do testify. We conclude that under the facts of this case, the information relating to an active investigation regarding Pruitt’s alleged involvement in a murder using an AK-47 six months before the execution of the warrant did not render that information stale.

We further note that the Department had been investigating Pruitt’s heroin distribution operation for several months. He had contacts throughout the state, had completed over 150 sales of narcotics within a single month, and had prior convictions for possession and sale of narcotics, robbery, and aggravated battery.

[I]t is common sense for officers to believe that a person reasonably suspected to be in possession of both firearms and substantial quantities of illegal drugs will use his firearms to protect himself and his holdings and, thus, poses a threat to the safety of police officers attempting to seize the drugs. State v. Williams, 168 Wis.2d 970, 485 N.W.2d 42, 47 (1992); U.S. v. Singer, 943 F.2d 758 (7th Cir.1991). As the court in U.S. v. Singer, 943 F.2d at 762-63, succinctly put it:
It is a reasonable beliéf that a person in possession of both firearms and large quantities of drugs poses a threat to the safety of police officers attempting to seize the drugs. Indeed, the courts have recognized that a suspect’s propensity for violence can be inferred from the quantity of drugs involved. See U.S. v. Bonner, 874 F.2d 822, 824-25 (D.C.Cir.1989) (“common sense and bitter experience ... suggests [that] dealers in narcotics possess firearms and that such weapons are as much tools of the trade as more commonly recognized drug paraphernalia”); United States v. Kane, 637 F.2d 974, 980 (3d Cir.1981) (reasonable to deduce that weapons are necessary to protect large quantities of drugs); c.f. United States v. Buchanan, 910 F.2d 1571, 1573 (7th Cir.1990) (recognizing that guns are tools of the drug trade); United States v. Alvarez, 860 F.2d 801, 829 (7th Cir.1988) (same), cert. denied, 490 U.S. 1051, 109 S.Ct. 1966, 104 L.Ed.2d 434 (1989). With these considerations in mind, we believe the gun reputedly in Singer’s possession posed a quantifiable risk to the safety of the officers executing the warrant; therefore, this exigent circumstance permitted the police to enter Singer’s home, without first knocking and announcing their presence.

Wilson v. State, 673 So.2d 505, 512 (Fla. 1st DCA 1996).

In its order, the trial court likened the freshness of the information regarding Pruitt’s suspected use of an AK-47 in a homicide to the requirement of temporal proximity of information necessary for issuance of a search warrant. This analogy is misplaced because the standards are vastly different. In the case of a search warrant, the affidavit must show that the suspect has committed a crime and that evidence of criminal activity will be found at a particular location. The exigent circumstances exception to the knock-and-announce requirement asks only if the officers on the scene have a reasonable belief, under the totality of the circumstances, that one of the exceptions exists. Bamber, 630 So.2d at 1050 (“Conditions must be assessed at the scene at the time of entry.”). Thus the determination of the existence of exigent circumstances is a judgment call made by the operational commander at the scene and has no direct relationship to the level of proof necessary for probable cause issuance of a search warrant.

The trial court’s attribution of the fact that neither the affidavit nor the warrant indicated Pruitt’s potential for violence or the fact that he was a suspect in a recent murder also misses the mark. The affidavit was prepared to fulfill the probable cause requirement for searching for narcotics and evidence of Pruitt’s heroin business operation, specifically business and phone records. See Art. I, § 12; Amend. IV., U.S. Const.

The task of the issuing magistrate is simply to make a practical, commonsense decision whether, given all the circumstances set forth in the affidavit before him, including the “veracity” and “basis of knowledge” of persons supplying hearsay information, there is a fair probability that contraband or evidence of a crime will be found in a particular place.

Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). Thus it was unnecessary to include in the warrant information regarding Pruitt’s violent crimes or the murder investigation because this information had nothing to do with establishing probable cause that Pruitt’s home would contain drugs or other evidence relating to his heroin trafficking business. The only possible use an issuing magistrate or judge might have for such information would be if he/she intended to issue a no-knoek warrant. As noted, this is not permitted in Florida. See Bamber, 630 So.2d at 1050. The information regarding the murder investigation was only necessary for TACT’s planning purposes, i.e., to enable TACT to make on-the-spot decisions as to the best way to execute the warrant at the scene, and was immaterial to the purpose of the warrant. Even if that information could be considered to be material, this court has held:

[Wjhen a question is raised as to material omissions from the search warrant affidavit, the court reviewing the matter should consider the affidavit as though the omitted facts were included and then evaluate the presence of probable cause in light of the added facts. This is true whether the facts were intentionally omitted or omitted in good faith. The rule should be applied if the omitted facts were nevertheless relevant and should have been included.

Sotolongo v. State, 530 So.2d 514, 516 (Fla. 2d DCA 1988).

The trial court also likened the instant case to Richardson, 787 So.2d 906, in which this court held that ten seconds was an insufficient amount of time, in the absence of exigent circumstances, to allow for a response after knocking where the warrant was executed at 5:30 a.m. However, in Richardson, there was no mention of firearms or threat of violence; the court engaged in a straightforward analysis of what should be a reasonable time vis-a-vis section 933.09 under the facts of that case. In contrast, the instant case involved specific information regarding the probability of the presence of firearms and the potential for violence. “In consideration of the violence which surrounds illegal drug trafficking, it is not reasonable to expect law enforcement officers to risk their lives and the lives of others when possessed of information as was present in this case.” State v. Avendano, 540 So.2d 920, 920-21 (Fla. 2d DCA 1989).

In the instant case, the officers knew they were not dealing with a minor league crack or marijuana dealer. The affidavit for search warrant described a person who ran a large or growing heroin distribution operation, who used semi-sophisticated techniques to elude law enforcement, such as the use of female “mules” or hiding heroin in the dashboard or body of a vehicle, and who was a participant in a larger heroin distribution network. Additional information provided to TACT supported their reasonable belief that they were dealing with a violent career criminal. See Power v. State, 605 So.2d 856 (Fla.1992) (holding that police officers were not required to knock and announce when executing a search warrant where they had been informed that the defendant used a gun or knife to rape, had committed armed robbery, had a black belt in karate, had a gun, and had a violent background). In Poiver, there was no indication that the “specific” information that Power had used a gun or knife in the rape was also included in the warrant; it was simply information provided to the police officers prior to their execution of the warrant. See also Poole v. United States, 630 A.2d 1109, 1124 (D.C.App.1993) (holding that where officers entered after ten seconds in the reasonable belief that defendant was on premises and had a gun and would use it if confronted provided exigent circumstances excusing full compliance with the knock-and-announce statute). Significantly, during the hearing, the TACT commander testified that he had not even read the warrant itself. Thus inclusion of information in the warrant regarding Pruitt’s potential for violence and the murder investigation would not have assisted his exigency assessment regarding officer peril.

We also note that TACT was concerned about the fact that gunfire from an AK-47 can pierce the body armor worn by its members. This knowledge made the exigency of the situation that much more critical. Finally, we note that the decision to use TACT in the first place indicates the degree of concern the Department had that Pruitt might respond to the execution of the warrant violently.

Based on the foregoing, we conclude that the trial court erred as a matter of law in concluding that exigent circumstances did not exist justifying TACT’s entry into Pruitt’s house after waiting twelve seconds. Because the trial court’s order must be reversed for the reasons stated herein, we decline to address whether Hudson would have precluded suppression of the evidence in this case regardless of any knock-and-announce violation.

Accordingly, we reverse the trial court’s order granting Pruitt’s motion to suppress the evidence and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS, J„ and THREADGILL, EDWARD F., Senior Judge, Concur.

VILLANTI, J., Concurs specially.

VILLANTI, Judge,

Specially concurring.

Although the majority stops short of reaching the Hudson issue, on the outside chance that further review or reversal of the majority holding were to occur, I would have addressed the Hudson issue as one of first impression in Florida. In addition, in my view the Hudson issue is the stronger reason supporting reversal of the trial court’s suppression order in this case. In all other respects, I completely concur in the majority opinion. Here, then, is that discussion of the Hudson issue.

In its order granting Pruitt’s motion to suppress, the trial court pointed out that in Hudson, the Supreme Court’s analysis of the knock-and-announce rule was based on the Fourth Amendment, whereas the issue in this case is the purported violation of a state statute, section 933.09. The trial court concluded that because “greater protections [than those based on constitutional protections] may be afforded to citizens via state statute,” section 933.09 provides a greater degree of protection than the Fourth Amendment or article I, section 12, of the Florida Constitution, and Hudson did not apply. I disagree.

I submit that whether the knock-and-announce rule is regarded as a creature of statute, the Fourth Amendment, or the common law, it is subject to the same analysis. This is so because any applicable statute and the incorporation of the rule into the Fourth Amendment historically arose from the same common law origins. See Sabbath v. United States, 391 U.S. 585, 591 n. 8, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968) (holding that the exceptions to the common law knock-and-announce rule also applied to 18 U.S.C. § 3109 “since they existed at common law, of which the statute is a codification”). In Hudson, the Supreme Court discussed the common law roots of the rule:

The common-law principle that law enforcement officers must announce their presence and provide residents an opportunity to open the door is an ancient one. See Wilson v. Arkansas, 514 U.S. 927, 931-932, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Since 1917, when Congress passed the Espionage Act, this traditional protection has been part of federal statutory law ... and is currently codified at 18 U.S.C. § 3109. We applied that statute in Miller v. United States, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), and again in Sabbath v. United States, 391 U.S. 585, 88 S.Ct. 1755, 20 L.Ed.2d 828 (1968). Finally, in Wilson, we were asked whether the rule was also a command of the Fourth Amendment. Tracing its origins in our English legal heritage, 514 U.S. at 931-936, 115 S.Ct. 1914, we concluded that it was.

Hudson, 126 S.Ct. at 2162. In United States v. Ramirez, 523 U.S. 65, 73, 118 S.Ct. 992, 140 L.Ed.2d 191 (1998), the Supreme Court stated:

We remove whatever doubt may remain on the subject and hold that § 3109 codifies the exceptions to the common-law announcement requirement. If § 3109 codifies the common law in this area, and the common law in turn informs the Fourth Amendment, our decisions in Wilson and Richards serve as guideposts in construing the statute. In Wilson v. Arkansas, 514 U.S. 927[, 934], 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), we concluded that the common-law principle of announcement is “an element of the reasonableness inquiry under the Fourth Amendment”.... [I]n Richards v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997), we articulated the test used to determine whether exigent circumstances justify a particular no-knock entry.

See also United States v. Banks, 540 U.S. 31, 42, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003) (holding that the result should be the same under the Fourth Amendment and § 3109). The knock-and-announce rule, as incorporated into federal statute in 18 U.S.C. § 3109, states:

The officer may break open any outer or inner door or window of a house, or any part of a house, or anything therein, to execute a search warrant, if, after notice of his authority and purpose, he is refused admittance or when necessary to liberate himself or a person aiding him in the execution of the warrant.

The Florida version (section 933.09), originally codified in 1923, is an almost verbatim copy of the federal version:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

Recognition of the knock-and-announce rule as a statutory restatement of common law occurred as early as 1958. In Miller v. United States, 357 U.S. 301, 308-09, 78 S.Ct. 1190, 2 L.Ed.2d 1332 (1958), the Court stated:

The requirement was pronounced in 1603 in Semayne’s Case, 5 Coke Co.Rep. 91a, 11 E.R.C. 629, 77 Eng.Repr. 194, at 195: “In all cases where the King is party, the sheriff (if the doors be not open) may break the party’s house, either to arrest him, or to do other execution of the K(ing)’s process, if otherwise he cannot enter. But before he breaks it, he ■ ought to signify the cause of his coming, and to make request to open doors * *
The requirement stated in Semayne’s Case still obtains. It is reflected in 18 U.S.C.S 3109, 18 U.S.C.A.S 3109, in the statutes of a large member of States, and in the American Law Institute’s proposed Code of Criminal Procedure, s 28.

(Emphasis added; footnotes omitted.) However, it was not until 1995 that the Supreme Court announced that the rule was also inherent in the Fourth Amendment. See Wilson v. Arkansas, 514 U.S. 927, 934, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995) (holding that the common law knock-and-announce principle forms a part of the Fourth Amendment reasonableness inquiry); see also Hernandez v. State, 863 So.2d 484, 486 (Fla. 4th DCA 2004) (noting that the Supreme Court in Banks had held that a fifteen-to twenty-second wait before forcible entry, “satisfied both the Fourth Amendment and 18 U.S.C. 3109, which is almost identical to section 933.09”).

After Hudson, the United States District Court for the District of Columbia held that, pursuant to Hudson, the exclusionary rule did not apply to entitle defendant to suppression of evidence seized during the search under the District of Columbia knock-and-announce statute, section 23-524(a). United States v. Southerland, 466 F.3d 1083, 1084 (D.C.Cir.2006), cert. denied, — U.S. -, 127 S.Ct. 1361, 167 L.Ed.2d 137 (2007). Noting that the District of Columbia statute fully incorporated § 3109 (as does the Florida statute), the Court stated:

Before Hudson the Supreme Court began treating § 3109 and the knock-and-announce rule of the Fourth Amendment as identical, see Ramirez, 523 U.S. at 73, 118 S.Ct. 992, which is why “the result should be the same under the Fourth Amendment and § 3109,” United States v. Banks, 540 U.S. 31, 42, 124 S.Ct. 521, 157 L.Ed.2d 343 (2003).

Id. at 1085. Other courts have also applied Hudson to violations of knock-and-announce statutes with similar results. See United States v. Bruno, 487 F.3d 304, 306 (5th Cir.2007) (holding that even if law enforcement violated the knock-and-announce statute, suppression is not available as a remedy after Hudson); United States v. Ramirez, 196 Fed.Appx. 538, 539 (9th Cir.2006) (noting that “[suppression of the evidence is not an available remedy for violations of the ‘knock and announce’ rule under 18 U.S.C. § 3109”); State v. Oliver, 112 Ohio St.3d 447, 860 N.E.2d 1002, 1004 (2007) (noting that Hudson is applicable to State’s knock-and-announce statute); State v. Marcum, 2006 WL 3849861, slip op. at *7 (Ohio Ct.App. Dec. 28, 2006) (same); State v. Callaghan, 222 S.W.3d 610, 616 (Tex.Ct.App.2007) (same). But see Plant v. State, 143 Idaho 758, 152 P.3d 629, 633 n. 2 (2006) (noting, in dicta, that despite Hudson, evidence acquired in violation of Idaho’s knock-and-announce statute might require suppression under that state’s law); Brumfield v. State, 155 P.3d 826, 833 (Okla.Crim.App.2007) (questioning, in dicta, whether Oklahoma’s knock-and-announce statute might offer broader protection than the application of the rule under federal law).

I also note that nothing in the language of section 933.09 requires suppression of the evidence if the rule is violated. See Jenkins v. State, 924 So.2d 20, 32 (Fla. 2d DCA 2006) (“The knock-and-announce provisions ... are silent with respect to the remedies that are available for their enforcement.”); see also Southerland, 466 F.3d at 1084 (noting that the words contained in the District of Columbia’s knock- and-announce statute and § 3109 were limited to the execution of search warrants and that both were silent with regard to remedies for violations). By contrast, some of Florida’s statutes contain provisions specifically allowing for suppression of evidence obtained when law enforcement fails to comply with the statute. See §§ 901.151(6) (“Stop and Frisk Law”); 934.06 (illegally intercepted wire or oral communications), Fla. Stat. (2004). Section 933.09 contains no such provision. Presumably, if the legislature wanted to include the sanction of suppression as part of the statute, it could have chosen to do so. This absent sanction thus belies any presumption that the legislature intended to statutorily create higher protections in section 933.09 than those determined to exist under state or federal constitutional interpretation of the knock-and-announce rule.

Whether the evidence should be excluded in a particular case is an issue separate and apart from the question of whether law enforcement actually violated the knock-and-announce rule. In Hudson, the Supreme Court noted this distinction:

“In Whiteley [v. Warden, Wyo. State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ], the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. Subsequent case law has rejected this reflexive application of the exclusionary rule.” [Arizona v. Evans, 514 U.S. 1, 13, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995).] We had said as much in [United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984),] a decade earlier, when we explained that “[w]hether the exclusionary sanction is appropriately imposed in a particular case, ... is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’ ” 468 U.S., at 906, 104 S.Ct. 3405 (quoting Illinois v. Gates, 462 U.S. 213, 223, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983)).

126 S.Ct. at 2164. The Hudson Court further noted that:

[Exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house. But even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have “never held that evidence is ‘fruit of the poisonous tree’ simply because ‘it would not have come to light but for the illegal actions of the police.’ ” Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

Id. at 2164 (bold emphasis added). As in Hudson, even if it could be said that the entry in this case was illegal, any of Pruitt’s interests which were potentially violated had nothing to do with the seizure of the evidence — there was no causal connection.

The Hudson Court further noted that to the extent there is any deterrence value to the exclusionary sanction, that value should be weighed against its social costs:

[T]he exclusionary rule has never been applied except “where its deterrence benefits outweigh its ‘substantial social costs,’” [Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 363, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998) ] (quoting Leon, 468 U.S., at 907, 104 S.Ct. 3405). The costs here are considerable. In addition to the grave adverse consequence that exclusion of relevant incriminating evidence always entails (viz., the risk of releasing dangerous criminals into society), imposing that massive remedy for a knock-and-announce violation would generate a constant flood of alleged failures to observe the rule, and claims that any asserted Richards [v. Wisconsin, 520 U.S. 385, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) ] justification for a no-knock entry, see 520 U.S., at 394, 117 S.Ct. 1416, had inadequate support. Cf. United States v. Singleton, 441 F.3d 290, 293-294 (C.A.4 2006). The cost of entering this lottery would be small, but the jackpot enormous: suppression of all evidence, amounting in many cases to a get-out-of-jail-free card.

Hudson, 126 S.Ct. at 2165-66 (emphasis added); see also Richardson v. State, 787 So.2d 906, 911 (Fla. 2d DCA 2001) (Alten-bernd, J., concurring) (“Adequate remedies directed toward the persons who actually violate these constitutional rights would do far more to protect both the public and law enforcement from the dangers of unannounced entries into homes, than our current remedy. Our current method is not a deterrent to the police nor fair compensation to a victim; it merely allows an occasional lucky defendant to win Florida’s knock-and-announce, five-seconds-too-early, exclusionary rule lottery.”).

With ■ regard to the exclusionary sanction’s potential deterrence benefits, the Hudson Court was even more direct in its analysis:

To begin with, the value of deterrence depends upon the strength of the incentive to commit the forbidden act. Viewed from this perspective, deterrence of knock-and-announce violations is not worth a lot. Violation of the warrant requirement sometimes produces incriminating evidence that could not otherwise be obtained. But ignoring knock-and-announce can realistically be expected to achieve absolutely nothing except the prevention of destruction of evidence and the avoidance of life-threatening resistance by occupants of the premises — dangers which, if there is even “reasonable suspicion” for their existence, suspend the knock and announce requirement anyway. Massive deterrence is hardly required.

Hudson, 126 S.Ct. at 2166. Nevertheless, noted the Court, deterrents other than the exclusionary sanction are available for violations of the knock-and-announce rule, just as they are for other police misconduct; for example, the threat of a civil suit under 42 U.S.C. § 1983 (for which attorneys’ fees are available under 42 U.S.C. § 1988(b)), the costs to municipalities of defending against such a suit, and advancements in police professionalism and training and the increased emphasis on internal police discipline. Id. at 2167-68; see also State v. Robinson, 565 So.2d 730, 733 (Fla. 2d DCA 1990) (suggesting that the use of the exclusionary rule as a sanction for knock-and-announce violations, which had been frequently employed by the trial courts since Benefield v. State, 160 So.2d 706 (Fla.1964), should be reconsidered).

Although the interests protected by the knock-and-announce rule include protection of human life and limb, protection of property from unnecessary damage or destruction, allowing the occupant the opportunity to comply, and protection of the occupants’ privacy and dignity, “¡wjhat the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant.” Hudson, 126 S.Ct. at 2165 (emphasis added). This conclusion emphasizes the underlying purpose of the knock-and-announce rule — it does not pertain to the execution of a valid warrant; it only delays entry. Further, suppression should not be imposed reflexively as a remedy of first resort, but should be a remedy of last resort. Hudson, 126 S.Ct. at 2163. The sanction should be reserved for the most egregious violations which, as common sense dictates, are most likely to occur in warrantless search situations.

The St. Petersburg TACT’s conduct here was far from egregious. As in Hudson, the law enforcement officers in this case executed a valid warrant based on probable cause (developed over the course of an extensive investigation) that drugs and records pertaining to Pruitt’s drug distribution business would be located in Pruitt’s residence. They knocked and announced their presence and waited twelve seconds before entry — the maximum amount of time their on-scene commander considered to be safe under the circumstances. Compare the circumstances in this case to those in Benefield. In that case:

[T]he officers totally ignored every requirement of the law as above interpreted. They barged into petitioner’s home without knocking or giving any notice whatever of their presence; they did not have a search warrant or warrant to arrest anyone; they ransacked petitioner’s home without the least semblance of any showing of authority. The petitioner was in bed sick at the time and the officers knew it.

Benefield, 160 So.2d at 709. The circumstances in this case are nothing like those in Benefield. More importantly, there was no but-for cause of obtaining the evidence here — even if TACT had entered a few seconds later, they would have executed the valid warrant and would have discovered the same evidence, subject to Pruitt’s ability to dispose of it before then or meet the officers with violence.

Therefore, unlike the majority, I would have held in the alternative that even if the TACT team’s entry in this case could be said to have violated section 933.09, Pruitt is not entitled to suppression of the evidence seized during the search pursuant to the Supreme Court’s decision in Hudson. Finally, I would have certified this issue as a question of great public importance.

      . Damian Schmitt was described as a veteran who had executed fifty to seventy-five search warrants.

      . This testimony supports the additional concern that Pruitt might attempt to dispose of the drugs, but this factor was not discussed in the State's appellate brief. Presumably this was because there was no noise emanating from within from which TACT could conclude that drugs were being destroyed.

      . Information developed during the investigation was described in the affidavit.

      . A situation made necessary as result of the fact that Florida does not recognize a "no-knock” search warrant.

      . In Avendano, a confidential informant told police that Avendano told him that he would be armed on the morning of the execution of the warrant. 540 So.2d at 920. Although the information in Avendano was more direct than in the instant case, we believe the conclusion is equally valid under the circumstances of the present case.

      . Ch. 9321, Laws of Fla. (1923).

      . Because the circumstances in Benefield in-, volved a warrantless entry accompanied by egregious police conduct, I do not think Hudson overrules its holding. In such circumstances, the exclusionary remedy would still be appropriate.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Nick KALOYIOS, Jr., Petitioner, v. REGAL HOMES OF CENTRAL FLORIDA, INC., Respondent.
    No. 5D07-1812.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.

      Marcus S. Lawrence, Jr., of Thorn Lawrence, P.L., Tampa, for Petitioner.
    Richard W. Hennings, of Richard W. Hennings, P.A., Tavares, for Respondent.
   PER CURIAM.

Petitioner, Nick Kaloyios, Jr., seeks certiorari review of an order dismissing his circuit court appeal. An order dismissing an appeal is reviewable by cer-tiorari. See, e.g., Lindsey v. King, 894 So.2d 1058 (Fla. 1st DCA 2005); Perez & Perez, M.D., P.A. v. Holder, 867 So.2d 622 (Fla. 2d DCA 2004). As explained below, we grant the petition and quash the order of dismissal.

Petitioner appealed a county court order granting a motion to stay and to compel arbitration in a suit that had been filed by Respondent, Regal Homes of Central Florida, Inc. After filing the appeal, Petitioner received an “appellate notice” letter from the presiding judge of the appellate division in Hernando County, advising him that his initial brief would be due on April 2, 2007, seventy days from the date of the letter, rather than seventy days from the filing of the notice of appeal. The letter further advised that the failure to file a timely brief would result in the appeal being dismissed.

Because Petitioner’s counsel received the letter by mail, he concluded, erroneously as it would turn out, that he had an additional five days within which to file his brief, pursuant to Floidda Rule of Appellate Procedure 9.420(e). That rule provides that if a party is required or permitted to do an act within some prescribed time after service of a document, and the document is served by mail, five days shall be added to the prescribed period. Consequently, Petitioner thought that the time for filing his initial brief did not expire until April 9, 2007, and, of course, that is when it was filed. However, unbeknownst to Petitioner, the circuit court had signed an order dismissing the appeal on April 5, 2007. Petitioner did not receive notice of the order of dismissal until April 10, 2007. That same day, Petitioner filed a motion to reconsider the order of dismissal, which was denied. Petitioner now seeks certiorari review of that order.

In dismissing the appeal below, the trial court relied on Hightower v. Berry, 490 So.2d 1029 (Fla. 1st DCA 1986), and Gillespie v. City of Destin, 946 So.2d 1195 (Fla. 1st DCA 2006). In Hightower, an order extending the time for filing the initial brief was issued, informing the appellant that he had until April 9, 1986, to serve the initial brief. The initial brief was filed on April 15, 1986, and had a certificate of service date of April 11, 1986. Although declining to impose the sanction of dismissal, the First District Court took the occasion to clarify a common misunderstanding concerning the rule, which enlarges the time for serving or filing a document after service by mail (currently rule 9.420(e)). The First District Court held that the rule does not provide an additional five days mailing time in all instances. The appellate rules provide that an answer brief is due to be served twenty days after the initial brief is served. See Fla. R.App. P. 9.210(f). If the initial brief is served by mail, the answer brief may be served within twenty-five days after the service date of the initial brief. On the other hand, an initial brief must be served within seventy days of the filing of the notice of appeal. See Fla. R.App. P. 9.110(f). The time period for the initial brief is not measured from service of an order or notice. In the instant case, the time period for the initial brief did not commence on the date that the letter was served because the letter contained a specific due date for the initial brief. If a document is due to be either served or filed by a specified date, it must be served or filed no later than that specified date. See Hightower, 490 So.2d at 1030. Therefore, under Hightower, Petitioner was required to file his brief by April 2, 2007, the date specified in the letter.

In Gillespie, the circuit court entered an order requiring the initial brief to be filed within ten days of the date of the order. The ten-day period ended on Monday, November 14, 2005, but the initial brief was not filed until the morning of November 15, 2005. When the appellee filed a motion to dismiss the appeal, the appellant responded that the initial brief was timely filed in view of the five-day enlargement contemplated under the appellate rules. The circuit court dismissed the appeal. On certiorari, review, the First District Court rejected the appellant’s argument that he had five additional days to file the initial brief. The initial brief was not required to be filed within some prescribed time after the service of a document. The order in Gillespie required the initial brief to be filed within ten days of the date of the order. However, the First District Court granted certiorari relief, and held that the dismissal was not an appropriate sanction.

As the First District Court explained in Lindsey v. King, 894 So.2d 1058, 1060 (Fla. 1st DCA 2005):

Public policy in Florida favors deciding controversies on their merits, even when an initial brief is untimely filed. See United Auto. Ins. Co. v. Total Rehab. & Med. Ctr., 870 So.2d 866, 869 (Fla. 3d DCA 2004) (citing North Shore Hosp., Inc. v. Barber, 143 So.2d 849, 853 (Fla.1962); Apolaro v. Falcon, 566 So.2d 815, 816 (Fla. 3d DCA 1990)). As the Fourth District (sic) has noted, the appellate rules allow for extensions of time for most steps in the appellate process, including for the filing of briefs. See United Auto., 870 So.2d at 869. “Where the court becomes aware that the initial brief has not been filed, but there was no previous ‘no further extensions’ order, it is customary to enter an order giving the party ten days to file the initial brief with .a warning that failure to comply may result in dismissal of the appeal.” Id. at 869 n. 3. The Fourth District held that in fairness to the appellant, if failure to file the brief by the deadline will result in dismissal of the appeal, “there must be fair warning of that fact in advance.” United Auto., 870 So.2d at 869. The Second District has agreed with the Fourth District’s reasoning, noting that “[d]ue process requires that a court imposing a deadline on a litigant for the performance of a particular act give the litigant reasonable notice of the deadline before the deadline arrives.” See Perez & Perez, 867 So.2d at 624 (citing United Auto., 870 So.2d at 869).

Lindsey further noted:

[T]he “great weight of Florida authority holds that the failure to file an initial brief by the deadline is not sufficient cause to justify dismissal of the appeal, unless there has been fail' warning, in advance, that this consequence may flow from a late filing.” United Auto., 870 So.2d at 869 (citations omitted). In the absence of particularly egregious conduct, the failure to timely file a brief is not a serious enough violation to warrant dismissal of an appeal. Irvin [v. Williams], 736 So.2d [705,] 706 [(Fla. 1st DCA 1999) ].

Id., 894 So.2d at 1060 (emphasis added).

Florida Rule of Appellate Procedure 9.410 requires the court to give ten days notice before imposing, on its own motion, sanctions such as reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs and attorney’s fees, for the violation of any of the appellate rules. While the circuit court gave notice in advance of the sanction to be imposed, as the letter stated that any appellant who does not file a timely appellate brief would have his or her appeal dismissed without hearing, dismissal of an appeal for the untimely filing of a brief serves only to penalize the client for the error of counsel, which is better addressed by the use of other sanctions such as fines, costs, reprimand, or contempt. See Gentry v. Gentry, 463 So.2d 511 (Fla. 1st DCA 1985); see also Magier v. Solomon & Benedict, P.A., 704 So.2d 685 (Fla. 2d DCA 1997) (holding that dismissal of petitioner’s appeal was unwarranted sanction that resulted in clear departure from essential requirements of law).

Generally, the harsh sanction of dismissing an appeal is imposed when there is extreme, willful misconduct, or an intentional disregard of court orders or the appellate rules, which rises to the level of inexcusable neglect. See, e.g., Baron v. First Union Nat’l Bank of Fla., 792 So.2d 708 (Fla. 5th DCA 2001) (denying certiora-ri where circuit court dismissed appeal almost six months after appeal was initiated and there was no reasonable justification for delay in filing initial brief). In this case, the late filing of the initial brief appears to be the result of inadvertence. Even the appellate court in Hightower, referred to the “common misunderstanding” concerning the five-day enlargement of time period after service by mail. 490 So.2d at 1030. The deadline for filing a brief is not jurisdictional, and courts often extend the time for filing briefs if a timely request is made. Therefore, we grant the petition, as the circuit court’s dismissal of the appeal was too harsh a sanction for counsel’s inadvertent failure to file the brief in a timely fashion, and constitutes a departure from the essential requirements of law.

CERTIORARI GRANTED; ORDER OF DISMISSAL QUASHED.

GRIFFIN, THOMPSON and ORFINGER, JJ., concur.

      . Friday, April 6, 2007, was Good Friday, and Saturday and Sunday, April 7 and 8, 2007, were excluded from the computation pursuant to Florida Rule of Appellate Procedure 9.420(0, which provides that "the last day of the period so computed shall be included unless it is a Saturday, a Sunday, or a holiday described below, in which event, the period shall run until die end of the next day that is neither a Saturday, Sunday, nor holiday.”


author: TORPY, J. THOMPSON, J.,

text:
    Robert L. CLEVENGER, Petitioner, v. STATE of Florida, Respondent.
    No. 5D07-451.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    Howard Babb, Public Defender, Dale Marie Merrill, Assistant Public Defender, Inverness, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Jr., Assistant Attorney General, Daytona Beach, for Respondent.
   TORPY, J.

Petitioner seeks a wilt of prohibition, based on speedy trial grounds, to prohibit the trial court from proceeding with his murder and aggravated battery trial. The pending charges arose from a physical altercation during which Petitioner allegedly battered several victims, including the decedent. Petitioner’s theory is that the speedy trial period for any charges arising from the same fracas began to run, not when he was first arrested for crimes involving the decedent, but when he was first arrested for battery of any victim of the same fracas. This is true, he theorizes, because all of the crimes occurred during the same “criminal episode.” Concluding that the pending charges did not arise from the same episode for speedy trial purposes, we deny the petition.

On February 19, 2006, Petitioner was arrested for three misdemeanor counts of battery on Amy Cook, Christina Owens, and Joshua Barney. These charges arose from a physical altercation that began between Petitioner and his wife but also involved Cook, Owens, Barney and the decedent, Tia Florin, all of whom had apparently attempted to intervene. Florin, who was pregnant at the time, collapsed during the melee and could not be revived. She died later that night. Petitioner was initially charged with multiple counts of misdemeanor battery. He pled no contest and was sentenced to time served for the offenses involving Cook, Owens, and Barney.

Many months after the disposition of the misdemeanor charges, the State filed the information in this case, charging Petitioner -with third-degree murder and aggravated battery on Florin. Petitioner was arrested on the new charges the following day. He filed a motion to discharge the felony charges pursuant to Florida Rule of Criminal Procedure 3.191(a). The trial court treated his motion as a notice of expiration of time for speedy trial. The trial court orally denied Petitioner’s motion, relying on this Court’s decision in State v. Brandt, 460 So.2d 444 (Fla. 5th DCA 1984). It then set the case for trial, which we stayed pending review of this petition.

Petitioner claims that all of the criminal charges arose out of a single criminal episode. Accordingly, he contends that, when he was arrested and taken into custody on the misdemeanor charges, the speedy trial period began to run for all charges and all victims involved in the same incident. Like the trial court, we conclude that our decision in Brandt is controlling here. There, Brandt allegedly committed two sexual batteries on two different victims during the same encounter. Although Brandt was initially arrested for one of the sexual batteries, he was not charged with the second battery until much later when an amended information was filed. The lower court discharged Brandt on the second sexual battery charge, finding that the two batteries arose from the same criminal episode. We reversed. In addressing Brandt’s argument that the speedy trial period commenced to run on both charges at the time he was initially arrested, we said:

Here, appellee was involved in two batteries on two persons, it is alleged. Until he is taken into custody on a charge he is not entitled to speedy trial rights. He was not taken into custody for the second charge until, at the earliest January 11, 1984, when the information was filed, as far as the record here discloses. The motion for discharge affirmatively states that appellant [sic] was arrested for Count One on March 4, 1984. It does not say he was taken into custody for Count Two on that day, or any particular day.
The only evidence that the appellee was taken into custody as to Count Two is the information charging him with Count Two. The motion for discharge does not support the finding made and the information refutes the finding. The fact that both batteries occurred at the same location in the same time period does not equate to the same crime. There were two victims thus two separate crimes. Appellee should not have been discharged. The order of discharge is reversed and this cause remanded for trial on both counts.

Id. at 445-46 (emphasis added).

Petitioner has made no attempt to distinguish Brandt, so our analysis would ordinarily end with our citation to this precedent. However, Petitioner suggests that the holding in Brandt is no longer viable in light of more recent decisions of this and other courts. We disagree.

Generally, the speedy trial rule provides a right to an expeditious trial when a defendant has been “charged with a crime.” Fla. R.Crim. P. 3.191(a). The time period begins to run when the defendant is arrested for the crime or issued a notice to appear. Fla. R.Crim. P. 3.191(a), (d). Under certain limited circumstances, however, the right to a speedy trial can commence to run on uncharged crimes if the uncharged crimes are part of the same “criminal episode” as the charged crimes. State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003). Crimes are deemed to be part of the same criminal episode so as to trigger the running of the speedy trial period when they are based on substantially the same conduct, even though the conduct may give rise to different consequences. Id. Accord State v. Lynch, 445 So.2d 687, 689 (Fla. 2d DCA 1984) (for speedy trial purposes, for charged and uncharged crimes to be same “criminal episode, ... conduct resulting in the separate crimes must be ‘not merely related,’ but ‘the same conduct,’ ” even though it gives rise to different consequences (quoting Walker v. State, 390 So.2d 411, 412 (Fla. 4th DCA 1980))); see also Shearin v. State, 755 So.2d 800 (Fla. 2d DCA 2000) (citing Lynch as viable authority). As we explained in Hanna, crimes can constitute separate criminal episodes for speedy trial purposes even though they happen at the same time. Admittedly, there is some disagreement and confusion in this area, and the decisional law is not always easily reconciled. Here, however, the charged and uncharged crimes are clearly not part of the same criminal episode because they involved distinct acts against different victims.

We do not think our decision here is in tension with Reed v. State, 649 So.2d 227 (Fla.1995), a case upon which Petitioner heavily relies. In Reed, the defendant was arrested for robbery and traffic offenses arising from a convenience store holdup and subsequent flight from the scene of the crime. He was first charged with kidnapping by information filed long after the 175th day following his arrest on the robbery charge. In addition to directing a discharge on the robbery charge, because the state failed to bring him to trial within 175 days following his arrest, the court directed that Reed be discharged on the kidnapping charge .because it had arisen from the same criminal episode as the robbery. Although the facts of the robbery and kidnapping are not discussed in the opinion, nor in the opinion of the district court, we must assume that both charges involved substantially the same conduct and the same victim. Here, by contrast, the crimes allegedly committed against Florin did not involve the same conduct as the batteries involving the other victims. Thus, the charges did not arise from the same criminal episode. Reed is therefore distinguishable.

We also reject Petitioner’s contention that a different result is compelled by our decision in State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005). There, Clifton set fire to his own house.' The fire spread to four other structures and a vehicle. Clifton was arrested for setting the fire and the state filed a timely information charging him with arson as to all of the structures save for one. After the speedy trial period expired, the state amended the information recharging Clifton with the same crimes charged in the original information and adding a new count related to the fifth structure. Clifton moved to dismiss the entire information, arguing that the state was precluded from filing the information after the speedy trial period had expired. The state conceded that the new count should be dismissed, but argued that the restated charges should not be dismissed. The trial court granted the defense motion as to all counts. We affirmed the dismissal of the count that was added after the speedy trial period had expired because that count involved an offense that was part of the same criminal act as the originally charged offenses. We, however, reversed the dismissal as to the originally charged affidavits.

Petitioner argues that Clifton implicitly overrules Brandt because Clifton stands for the proposition that crimes against different victims may be part of the same criminal episode for speedy trial purposes. Petitioner draws this conclusion because, in Clifton, we affirmed the dismissal of the one charge, which Petitioner assumes involved a different victim. Even if Petitioner’s assumption is correct, we do not believe a different conclusion is mandated by Clifton for several reasons. First, the propriety of the dismissal of the one charge had been conceded by the State. Our discussion of that issue, therefore, was mere dictum. Second, the panel in Clifton did not expressly (and could not) overturn the prior panel decision in Brandt. Finally, Clifton is distinguishable from Brandt and this case in that Clifton had committed one act — the setting of a fire — which gave rise to multiple charges. Here, by contrast, the crime against Florin was a distinct act. Therefore, Clifton does not compel the result urged by Petitioner.

Because our conclusion that the charges were not part of the same criminal episode is dispositive of this petition, we need not decide the issue of whether the State had the right to try Petitioner within the recapture period, even if speedy trial had expired. We note however that the State did not use a nolle prosequi to circumvent the speedy trial rule. Therefore, the recapture period would have been available. Fla. R.Crim. P. 3.191(a), (p); Reed, 649 So.2d at 229. Cf. State v. Agee, 622 So.2d 473 (Fla.1993) (State loses recapture period pursuant to rule 3.191(o) when use of nolle prosequi thwarts intent of speedy trial rule).

PETITION DENIED.

PLEUS, J., concurs.

THOMPSON, J., dissents with opinion.

THOMPSON, J.,

dissenting.

I respectfully dissent. There is no dispute that the batteries occurred on 19 February 2006, and that Florin died that same evening. However, the State failed to bring charges in her death until 25 October 2006, 249 days after Clevenger’s arrest on the misdemeanor battery charges, and 74 days beyond the 175-day speedy trial period. See Fla. R.Crim. P. 3.191(a). The majority holds that State v. Brandt, 460 So.2d 444 (Fla. 5th DCA 1984), is viable and Clevenger can be tried for the homicide because he was not taken into custody in February 2006. Citing State v. Hanna, 858 So.2d 1248, 1250 (Fla. 5th DCA 2003), the court writes that the homicide was not part of the same criminal episode so as to trigger the running of the speedy trial period. The majority wrote, “the charged and uncharged crimes are clearly not part of the same criminal episode because they involved distinct acts against different victims.” I disagree with the analysis and find the cases of Reed v. State, 649 So.2d 227 (Fla.1995), and State v. Clifton, 905 So.2d 172 (Fla. 5th DCA 2005), dispositive. The facts here support Clevenger’s argument that there was one criminal episode and that speedy trial began on 19 February 2006.

In Reed, the issue before the supreme court was whether Reed was entitled to be discharged for a violation of the speedy trial rule. The supreme court noted that, under the speedy trial without demand rule, a person is in custody when he is arrested as a result of the conduct or criminal episode that gave rise to the crime charged, or when the person is served a notice to appear in lieu of physical arrest. Because Reed was initially arrested for the conduct or criminal episode that gave rise to both the robbery and kidnapping charges, the speedy trial time on those charges began to run from the date of the arrest. The supreme court held that Reed was entitled to discharge. Id. at 229. Similarly, in this case, Cleven-ger was arrested for the conduct that gave rise to the battery and homicide, and speedy trial should run from the date of his arrest.

The issue in Clifton was when speedy trial began to run for multiple crimes. On appeal, we stated that the speedy trial period for all crimes arising out of the same criminal conduct or episode commences from the date the defendant is taken into custody, even for crimes not charged in the information. Id. at 178. If an amended information is filed after the speedy trial period has expired and the defendant has not previously waived his right to a speedy trial, then, upon the defendant’s motion, the new charges must be dismissed if they arose from the same criminal episode as the charges contained in the original information. Accordingly, we affirmed the dismissal of the new charge in the amended information, but reversed the dismissal of the other charges. These cases allow prosecution if there was a single criminal episode. Therefore, the question is whether there was a single criminal episode.

In Echelmeier v. State, 662 So.2d 994 (Fla. 2d DCA 1995), the court addressed the criteria for determining when there is a single criminal episode. The court wrote that there is no bright line rule for determining when a criminal episode can be denominated single or separate, but that the court must focus on the facts of the case. In Williams v. State, 804 So.2d 572, 574 (Fla. 5th DCA 2002), we stated that in addition to the facts of each case, we should consider the nature, time, place and number of victims involved. Id. citing Smith v. State, 650 So.2d 689, 691 (Fla. 3d DCA 1995); Colson v. State, 678 So.2d 1354 (Fla. 1st DCA 1996). See also Wilcher v. State, 787 So.2d 150 (Fla. 4th DCA 2001); Wallace v. State, 673 So.2d 910 (Fla. 2d DCA 1996).

Here, the State should have charged Clevenger within the speedy trial period for all crimes that occurred during the criminal episode, including the criminal charges involving the victim Tia Florin. They all happened at the same time during the same fight. Additionally, Clevenger was not required to file a notice of expiration of speedy trial period because the supreme court in State v. Agee, 622 So.2d 473 (Fla.1993), made clear that the 15-day recapture period of Florida Rule of Criminal Procedure 3.191(p) does not apply to charges filed after the expiration of the speedy trial time.

Because Florin collapsed during the same criminal episode for which Clevenger was initially arrested, the State had 175 days to charge him with any crimes relating to that victim. Because the State did not charge Clevenger with aggravated battery on a pregnant female and third-degree murder within that 175-day period, he is now total immune from prosecution for those felonies. I would hold that this was the same criminal episode for speedy trial purposes, and speedy trial began on 19 February 2006.

      . In arguing the motion below, the state attorney stated:
      What happened ... here is not a chain reaction-type situation. It wasn't a situation where the defendant strikes one victim, who then falls into the deceased victim and then she dies as a result of that.... These are separate, independent punches, grabs, pushes, whatever....

      . Reed was also entitled to discharge on the two charges of leaving the scene of an accident because the State had nol prossed those charges and then later refiled them after the expiration of the speedy trial period.


author: MONACO, J. LAWSON, J.,

text:
    Samuel D. GRANBERRY, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3988.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    James S. Purdy, Public Defender, and Henry T. Swann, III, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The sole issue presented by this appeal is whether the trial court erred in giving the forcible felony exclusionary charge described in section 776.041(1), Florida Statutes (2002), as part of the standard self-defense jury instruction. The appellant, Samuel Granberry, argues that because his only defense at trial was “self-defense,” the trial court’s error in giving a misleading and confusing instruction was fundamental. We agree and, accordingly, reverse.

The State charged Mr. Granberry with one count of second degree murder with respect to the shooting death of Alphonzo Scott, and one count alleging that Mr. Granberry unlawfully carried a concealed firearm. Without detailing the evidence that was adduced during the course of the trial, suffice it to say that we agree with Mr. Granberry that he presented sufficient evidence of self-defense to reach a jury on that issue. After both sides rested, defense counsel asked the trial court to include an instruction on the justifiable use of deadly force. The court agreed to do so.

In giving the jury instructions, the court explained that the jury panel would have to decide whether the killing was excusable or resulted from justifiable use of deadly force. When discussing “self-defense” with the jury, however, the trial court described the forcible felony exception to self-defense, as follows:

... [Hjowever, the use of force likely to cause death or great bodily harm is not justifiable if you find: the defendant was attempting to commit, committing or escaping after the commission of a forcible felony; or the defendant initially provoked the use of force against the defendant, ...

The defense made no objection to the instruction. The written instructions were almost identical to those delivered orally. After deliberating, the jury returned a verdict of guilty of both second degree murder and carrying a concealed weapon. Mr. Granberry timely appealed the judgment and sentence imposed for those offenses.

Mr. Granberry accurately argues that under the wealth of case law governing this matter it was fundamental error for the trial court to give the forcible felony exclusionary charge because there was no evidence that he was engaged in any separate forcible felony other than the one charged. An independent forcible felony is generally defined as one that invokes the use or threat of physical force or violence against an individual. See Barnes v. State, — So.2d -, 2007 WL 2316841 (Fla. 3d DCA Aug.15, 2007); Flynn v. State, 947 So.2d 1229 (Fla. 2d DCA 2007); Williams v. State, 937 So.2d 771 (Fla. 1st DCA 2006); Barnes v. State, 932 So.2d 589 (Fla. 5th DCA 2006); Craven v. State, 908 So.2d 523 (Fla. 4th DCA 2005); Hawk v. State, 902 So.2d 331 (Fla. 5th DCA 2005); Cleveland v. State, 887 So.2d 362 (Fla. 5th DCA 2004); Davis v. State, 886 So.2d 332 (Fla. 5th DCA 2004), review denied, 898 So.2d 81 (Fla.2005). As the concurring opinion points out, we are bound by our prior precedent and must follow it. Here, the only other crime charged, carrying a concealed weapon, does not qualify as a second separate forcible felony. See Williams, 937 So.2d at 773 (stating that merely carrying a concealed firearm does not involve use or threat of physical force or violence against an individual).

Where a defendant is charged with a single forcible felony for which he or she claims self-defense, it is fundamental error to instruct the jury on the forcible felony exception to self-defense because to do so involves circular reasoning and essentially negates the defense. See, e.g., McJimsey v. State, 959 So.2d 1257 (Fla. 4th DCA 2007); Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review granted, 959 So.2d 717 (Fla.2007); Estevez v. Crosby, 858 So.2d 376, 377 (Fla. 4th DCA 2003). Certainly an instruction that nullifies a defendant’s sole defense must affect the fairness of the proceeding. See Cardenas v. State, 867 So.2d 384 (Fla.2004); Grier v. State, 928 So.2d 368 (Fla. 3d DCA 2006), revieiv denied, 952 So.2d 1191 (Fla.2007). It is for this reason that the forcible felony instruction only applies in situations where the defendant is charged with a separate independent forcible felony as defined by section 776.08, Florida Statutes (2006). Since all fundamental error by its very nature is harmful error, and since Mr. Granberry was not charged with a second forcible felony separate from the one for which he asserted a claim of self-defense, a reversal is compelled.

Accordingly, we reverse the judgment and sentence and remand to the trial court for a new trial. We also certify conflict with Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006), review grunted, 959 So.2d 717 (Fla.2007), which concluded there was no fundamental error in instructing the jury on the forcible felony exception when self-defense was asserted and where there was only one forcible felony charged.

REVERSED and REMANDED.

SAWAYA, J., concurs.

LAWSON, J., concurs specially with opinion.

LAWSON, J.,

concurring specially.

I concur only because our precedent dictates this result and, absent an en banc decision receding from prior precedent, I must follow it.

Our court has repeatedly held, as has every other district court in Florida, that it is error for the trial court to instruct on the “forcible felony exception to self-defense” in a case where there is no evidence that the defendant was engaged in a separate forcible felony other than the one charged. I believe this holding to be inconsistent with the law.

Section 776.041(1), Florida Statutes, provides that the justification of self-defense or defense of others is not available to a person who “[i]s attempting to commit, committing, or escaping after the commission of, a forcible felony.” By its express terms, this statute applies irrespective of the number of felonies that the defendant is committing or attempting to commit. Id. So, a forcible felony instruction clearly should be given when a defendant is already engaged in the commission of a forcible felony and the victim (or a third party attempting to defend the victim) attempts to use deadly force to stop the defendant’s crime.

For example, assume a case in which the defendant has planned to murder a man by running him over with a car. He finds the man walking down a street, and turns his car toward him. The man narrowly escapes the first pass, when the defendant turns the car and comes at his intended victim again. With nowhere left to run, the intended victim pulls out a gun and shoots at the car in an attempt to save his life. He fails, and is fatally struck by the defendant’s car.

Fast forward to trial. The defendant is charged with a single count of first-degree murder. Although third party eye-witnesses testify to the account just narrated, the defendant takes the stand and testifies that he never planned or intended to harm the victim, and never tried to run him over until after the defendant pulled a gun and started shooting at him. The defendant testifies that he only veered off the road and struck the defendant in self-defense, because the man first shot at him.

Obviously, the jury should be given a self-defense instruction because the defendant is claiming self-defense and his testimony, if believed, would support this theory of defense. But what if the defendant’s testimony is not believed? Under the majority’s holding, the judge cannot also instruct the jury that a person who is attempting to murder someone cannot claim self-defense. This makes no sense to me.

In my view, there is absolutely no question but that the jury should be instructed on the forcible felony exception on these facts, where only one crime is charged. If the jury believes the third party eye-witness accounts, and concludes that the defendant was already engaged in the commission of a forcible felony (in this case, committing premeditated murder), when the victim pulled the gun, I read section 776.041(1), Florida Statutes, as prohibiting the defendant from justifying the completion of his crime as self-defense. But, again, the rule that we have erroneously created mandates that the forcible felony instruction be given only when the defendant “is charged with at least two criminal acts, the act for which the accused is claiming self-defense as well as a separate forcible felony.” Hawk v. State, 902 So.2d 331, 331 (Fla. 5th DCA 2005) (quoting Cleveland v. State, 887 So.2d 362, 363 (Fla. 5th DCA 2004)).

Of course, none of the appellate courts in Florida would have crafted what I firmly view as a patently erroneous rule if this relatively straight-forward issue had not been somehow clouded by something. Unfortunately, the issue was clouded by a poorly written jury instruction.

Florida’s standard self-defense jury instruction explains the forcible felony exception in a short clause stating that:

the use of force likely to cause death or great bodily harm is not justifiable if you find [defendant] was attempting to commit, committing or escaping after the commission of [a forcible felony] ...

Each of Florida’s district courts has concluded that this instruction is “circular” and therefore negates the defense of self-defense when only one forcible felony is charged. E.g., Martinez v. State, 933 So.2d 1155 (Fla. 3d DCA 2006); review granted, 959 So.2d 717 (Fla.2007). But that’s not the problem. The forcible felony exception is supposed to negate the defense of self-defense — that’s the reason for section 776.041(1). And, this is just as true when the act for which the defendant is claiming self defense is the only crime charged. Again, in the example given, the defendant cannot legally justify completing his murder as self-defense just because the victim acted with deadly force to protect himself.

The real problem with the instruction is its failure to adequately address timing— which is the crux of the self-defense debate in most cases. It is possible that the drafters of this instruction intended to address timing by referring to the forcible felony in the past tense (“was”). However, the instruction fails to explain what the forcible felony must precede in order for the exclusion to apply. Adding this missing element, the instruction would read as follows:

“[T]he use of force likely to cause death or great bodily harm is not justifiable if you find [defendant] was already attempting to commit, committing or escaping after the commission of [a forcible felony] at the time of th,e act or event to which [defendant] alleges to have responded in self-defense ...”

However, because the instruction fails to adequately address timing, the majority is concerned that it could be understood as negating the defense of self-defense even in a case where the jury finds that the defendant initiated the forcible felony (the crime charged) only after (or, in lawful response to) the purported victim’s unjustified threat of deadly force against the defendant. To use the prior example, a concern arises only if the jury: (1) believes the defendant and finds that the victim pulled the gun and began shooting at the defendant before the defendant formed the intent to strike the victim with the car or acted on that intent; and (2) concluded that the instruction did not allow them to find that the defendant’s actions were justified as self-defense because the state had proven every element of the crime of first degree murder (even though all elements of the crime arose only in response to the victim’s use of deadly force). More simply put, the majority’s concern is that the jury, in my example, could understand the instruction to mean that killing can never be justified as self-defense. I agree that this understanding of the instruction would involve “circular reasoning;” would improperly negate the defense of self-defense; and would be of great concern. But, unlike the majority, I am completely confident that no jury would ever understand the instruction as applying in this circular fashion, for a number of reasons.

First, the majority’s concern is only valid if we believe that a rational jury might conclude that the judge has instructed them to consider a defense that never applies to the crime charged. I cannot fathom that a jury might read a single clause out of a very lengthy instruction as meaning that they should simply ignore the rest of the instruction, because it does not apply to the crime. If a jury actually figured out that the instruction could be read in the circular fashion suggested by the majority, I believe that they would reject the majority’s interpretation as inconsistent with the instruction as a whole.

Second, the forcible felony clause is immediately followed in the standard jury instruction by a clause that does address timing, and explains that the crime charged cannot be justified as self-defense if it was the defendant who “initially provoked the use of force” against himself. The appropriate focus on timing in this clause reinforces my view that there is no chance that a jury will be mislead into believing that timing is irrelevant.

Third, of all legal concepts dealt with by the courts, that of self-defense is probably understood better by laypersons than any other. Therefore, I am also confident that no jury would give the instruction the strained and illogical interpretation suggested by the majority when that interpretation would be inconsistent with their firmly-held understanding of the law.

Fourth, in the real world of felony trials, the issue of self-defense is discussed in context and explained to the jury with reference to the facts of a case, by the attorneys for the parties. I have never seen or heard of an instance in which a prosecutor told a jury in closing argument that the forcible felony instruction means that they cannot consider self-defense, because self-defense can never justify the forcible felony charged in the information or indictment. Rather, both sides properly argue the facts, in context, properly applying the law. Given my example, the prosecutor would most likely agree that the jury should acquit the defendant if he simply struck the victim in response to the victim’s unprovoked attack with a firearm. Then, the remainder of the argument would focus on the evidence that should convince the jury beyond a reasonable doubt that this is not what happened. The prosecutor would argue the credibility of the eye-witnesses, the defendant’s lack of credibility, and supporting physical or other evidence as reasons why the jury should be convinced beyond a reasonable doubt that the defendant was trying to run down the victim before the victim pulled the gun.

In the case on review, for example, it was undisputed that defendant Granberry shot and killed his former friend Alphonzo Scott. The State’s witnesses all testified that Granberry and Scott had argued earlier in the day, and that Granberry returned to Scott’s house and shot Scott while Scott was standing in the doorway of his home, unarmed. Granberry, on the other hand, claimed that Scott was armed with a rifle and a derringer, and shot at him first. He claims that he only shot back in self-defense. Except for Granber-ry’s own statements, however, there was no evidence to support the claim that Scott shot at Granberry, or was even armed with any type of weapon at the time of his death.

Of course, the prosecutor never suggested to the jury that self-defense could not justify murder as long as she proved each element of the murder charge (the circular argument on which the majority bases its decision to reverse). Rather, the prosecutor argued that the jury should reject Granberry’s self-defense argument because there “wasn’t any evidence at all that Mr. Scott or his sons had a gun or weapon there. He’s shot in the dooiway of his own home.” The prosecutor implored the jury to use their common sense and to reject “the defendant’s version of events” because it was inconsistent with the evidence:

There’s no evidence that Mr. Scott or his children or his wife or anybody else there had any firearms and shot at the defendant first. The defendant admits he shot and killed Mr. Scott and he claims on the tape that he did it in self-defense, but any evidence of self-defense isn’t there. The opposite is, and I urge you to find the defendant guilty of Second Degree Murder....

This argument was entirely proper, and framed the self-defense argument consistently with an appropriate understanding of the forcible felony instruction. Again, I cannot imagine that the jury would have ignored the issue framed for them by the argument of the parties, and instead given the forcible felony instruction a strained, circular reading that would have rendered any debate as to whether Scott was armed, or shot at Granberry first, legally irrelevant.

For the reasons explained in this opinion, I disagree with the majority’s conclusion that it was error to instruct the jury on the forcible felony exception simply because only one forcible felony was charged. I also believe that although the language of the standard instruction should be improved, any error with respect to the language used to instruct the jury in this case was harmless beyond a reasonable doubt. Therefore, I believe the reversal in this case to be a miscarriage of justice. If not bound by our prior precedent, I would affirm.

      . We recognize that the procedural path by which this case reached our court is not as cut and dried as we are presenting it here. We have intentionally abbreviated the discussion on this aspect as it only adds confusion. For the information of those who are curious, however, the original appeal in this case was disposed of by Granberry v. State, 860 So.2d 18 (Fla. 5th DCA 2003). We granted the appellant a belated appeal in Granberry v. State, 919 So.2d 699 (Fla. 5th DCA 2006). The current appeal arises from the belated appeal.

      . See Reed v. State, 837 So.2d 366, 370 (Fla.2002).

      . I am attempting to simplify the factual analysis for ease of discussion. I realize that the jury need not believe the defendant to properly acquit. They should acquit if they have reasonable doubt as to the issue.

      . Law enforcement responded to the shooting almost immediately, while Granberry was still at the crime scene. The firearm taken from Cranberry's person was the only weapon found at the crime scene.