author: JACOBUS, J.

text:
    SOCC, P.L., d/b/a South Orange Wellness, Etc., Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Appellee.
    No. 5B11-783.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    Rehearing and Rehearing En Banc Denied Sept. 18, 2012.

      Peter A. Shapiro and Jonathan D. Wilson of The Law Offices of Peter A. Shapiro & Jonathan D. Wilson, Orlando, for Appellant.
    D. Mathew Allen of Carlton Fields, P.A., Tampa and, Johanna W. Clark of Carlton Fields, P.A., Orlando, for Amicus Curiae for AAA Auto Club South, Associated Industries of Florida, Florida Chamber of Commerce, Florida Insurance Council, National Association of Mutual Insurance Companies, Property Casualty Insurers Association of America, and Personal Insurance Federation of Florida. Marlene
    S.Reiss of Law Offices of Marlene S. Reiss, Esq., P.A., Miami, for Amicus Curiae Floridians for Fair Insurance, Inc. Carlos D. Cabrera and John L. Morrow of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   JACOBUS, J.

This appeal arises from two unrelated personal injury protection (PIP) lawsuits that involved identical legal issues and were consolidated for trial. SOCC, d/b/a South Orange Wellness and Injury Center, is a medical provider, which provided treatment to Michelle Badillo and Carmen Garcia for injuries they sustained in separate automobile accidents. Both Badillo and Garcia assigned SOCC their rights and benefits under their State Farm PIP insurance policies. SOCC billed State Farm for services rendered to Badillo and Garcia, but State Farm only paid SOCC for a portion of the services SOCC claimed it provided.

SOCC filed suit against. State Farm in both cases in county court to recover the amount it claimed it was owed for the services rendered to Garcia and Badillo. The lower court entered summary judgment in favor of State Farm, finding that SOCC improperly “unbundled” medical services when submitting its bills to State Farm. As a result, the court concluded that neither State Farm nor the patients were required to pay SOCC for the unbundled amount. State Farm based its un-bundling claim on the National Correct Coding Initiative (NCCI), which is a program developed by the Centers for Medicare and Medicaid Services (CMS) to promote national correct coding methodologies and to control improper coding that leads to inappropriate payment of Medicare Part B claims. It -is State Farm’s position that the NCCI edits are incorporated into the Florida No-Fault Statute and, therefore, can be used to limit the payment to medical providers such as SOCC. The county court certified a question of great public importance to this court. The certified question restated is as follows:

ARE THE NATIONAL CORRECT CODING INITIATIVE COMPREHENSIVE EDITS DATABASE (NCCI EDITS) INCORPORATED INTO THE FLORIDA NO-FAULT (PIP) STATUTES.

We answer the question in the negative.

There is no question in this case that SOCC provided the services to Badillo and Garcia. Essentially, both Badillo and Garcia received two different treatments from SOCC on the same day. They were properly coded and sent to State Farm for payment. State Farm only paid for one treatment as set forth in the NCCI edits because it believed that under the NCCI edits, the Medicare Rules do not allow the billing of both treatments on the same day. Thus, the pertinent issue is whether the NCCI edits are incorporated into the Florida No-Fault Statute. If so, State Farm properly refused to pay for more than one treatment as set forth in the NCCI edits. If, however, the NCCI edits are not incorporated into the Florida No-Fault Statute, SOCC was owed for the treatments Badillo and Garcia received, even though the Medicare Rules would not allow payment for those services rendered on the same day.

Section 627.736, Florida Statutes, controls the outcome of this case. It reads in relevant part:

(5) Charges for treatment of injured persons.—
(a) 1. Any physician, hospital, clinic, or other person or institution lawfully rendering treatment to an injured person for a bodily injury covered by personal injury protection insurance may charge the insurer and injured party only a reasonable amount pursuant to this section for the services and supplies rendered.... In no event, however, may such a charge be in excess of the amount the person or institution customarily charges for like services or supplies.
2.The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
a. For emergency transport and treatment by providers licensed under chapter 401, 200 percent of Medicare.
b. For emergency services and care provided by a hospital licensed under chapter 395, 75 percent of the hospital’s usual and customary charges.
c. For emergency services and care as defined by s. 395.002(9) provided in a facility licensed under chapter 395 rendered by a physician or dentist, and related hospital inpatient services rendered by a physician or dentist, the usual and customary charges in the community.
d. For hospital inpatient services, other than emergency services and care, 200 percent of the Medicare Part A prospective payment applicable to the specific hospital providing the inpatient services.
e. For hospital outpatient services, other than emergency services and care, 200 percent of the Medicare Part A Ambulatory Payment Classification for the specific hospital providing the outpatient services.
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.
3. For purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.
4. Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.

§ 627.736, Fla. Stat. (emphasis supplied).

It is SOCC’s position that the court must interpret the statute as only adopting the participating physicians schedule and not adopting all of the Medicare Rules and Regulations. State Farm, on the other hand, argues that the Florida Legislature adopted the Medicare Payment System in enacting the Florida No-Fault Statute because it refers to various fee schedules set forth in Medicare. Therefore, it concludes the Florida No-Fault Statute adopts the Medicare pay system and, because Medicare has adopted the NCCI edits, the edits were likewise adopted by the Florida No-Fault Statute.

“[Ljegislative intent is the polestar that guides a court’s inquiry under the No-Fault Law.” Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 334 (Fla.2007). The legislative “intent is derived primarily from the language of the statute.” Id. “[W]hen the language of a statute is clear and unambiguous,” a court may not resort to the rules of statutory construction. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Rather, “the statute must be given its plain and obvious meaning.” Id. (quoting McRainey, 137 So. at 159). A statute is ambiguous if reasonable people “can find different meanings in the same language.” Rollins v. Pizzarelli, 761 So.2d 294, 297 (Fla.2000) (quoting Forsythe v. Longboat Key Beach Erosion Control Dist, 604 So.2d 452, 455 (Fla.1992)).

A Florida circuit court recently considered the NCCI edits in relation to the Florida No-Fault Statute. See DWFII Corp. v. State Farm, & Cas. Co., 17 Fla. L. Weekly Supp. 1235a (Fla. 11th Cir.Ct. July 28, 2010). In that case, the court concluded that the Florida No-Fault Statute only incorporates the participating physicians schedule of Medicare because it is specifically indentified in the statute. The court explained its reasoning as follows:

In 2008, the Florida Legislature amended subsection (5)(a)(2)(f) and (5)(a)(3) of section 627.736 to allow insurers to limit Personal Injury Protection (PIP) reimbursement to 80% of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. The statute further allows the insurer to limit non-reimbursable charges under Medicare Part B to 80% of the “maximum reimbursable allowance under workers’ compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided.”
“In January of 1996, the Centers for Medicare & Medicaid Services (CMS) implemented the National Correct Coding Initiative (CCI). This initiative was developed to promote correct coding of health care services by providers and to prevent Medicare payment for improperly coded services. NCCI consists of automatic edits provided to the carriers to evaluate claim submissions when a provider bills more than one service for the same beneficiary on the same date of service.” The CMS is also the federal agency in charge of administering the Medicare program, and it updates and approves the physicians schedule annually. The NCCI is a separate schedule from the participating physicians schedule, and the fact that Medicare employs the NCCI to bar payments for services provided on the same day, does not, in absence of statutory language to the contrary, lead to the conclusion that a private insurer may limit a claim based upon the NCCI.
Any limitations permitted under Florida’s PIP statute are expressly contained therein, specifically in section 627.736(5)(a)2.(a)-(f) and 3.-5. The statute permits limiting reimbursement to participating physicians schedule of Medicare Part B. Nowhere in the amended PIP statute does the legislature permit the use of any other schedule, government or otherwise, which Medicare considers in further limiting its claims. The claims at issue under section 627.736, Florida Statutes, are not Medicare claims part of a government run program. Rather, they are the result of private insurance. The administering of Medicare and its handling of claims may not be superimposed on Florida’s No-Fault law, in absence of statutory language to that effect. And, the Legislature has specifically written this principle into the statute.
In section 627.736(5)(a)(4) the Legislature recognizes that Medicare uses a variety of guides to limit payments and forbids their application in PIP cases[.]
In essence, PIP claims are not to be adjusted as if they were Medicare claims. To hold otherwise would be to render the language “under the participating physicians fee schedule” superfluous. “As one court noted, ‘The Florida Legislature specifically employed the definite article ‘the allowable amount’ rather than ‘a’ or ‘an/ allowable amount. The most sensible reading of the phrase ‘the allowable amount’ suggests that the [Legislature intended for a specific Medicare schedule to be incorporated into the PIP statute, rather than either, any, or all of the schedules.’ Consequently, while an insurer may limit reimbursement to 80% of 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B, no other sources of limitations are permissible under Florida’s No Fault law.

Id. (emphasis supplied) (internal citations omitted). Other circuit courts have addressed this issue and have found the NCCI edits are incorporated in the Florida No-Fault Statute. See Space Coast Corporate Health Seros, v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 1269a (Fla. 18th Cir.Ct. July 9, 2010) (entering summary judgment in State Farm’s favor because legislature adopted Medicare pay system in the Florida No-Fault Statute); Alexandra Healthcare, LLC v. State Farm Mut. Auto. Ins. Co., 17 Fla. L. Weekly Supp. 826a (Fla. 9th Cir.Ct. May 6, 2010) (finding all Medicare guidelines, except for two sections that were excepted out by legislature, apply to section 627.736(5)(a)4.).

Although not directly on point, a recent case from the second district, which considered the Florida No-Fault Statute and a system used by Medicare to limit MRI services, is instructive in this matter. In Nationwide Mutual Fire Insurance Co. v. AFO Imaging, Inc., 71 So.3d 134 (Fla. 2d DCA 2011), the court considered a final judgment entered in favor of MRI providers, who claimed they were underpaid by insurance companies for PIP benefits. Id. at 135. At trial, the insurance companies argued “they were entitled to pay for non-emergency, nonhospital MRI services provided to PIP insureds based on Medicare’s Hospital Outpatient Prospective Payment System (“OPPS”).” Id. They further argued that the OPPS amount was part of the participating physicians schedule of Medicare Part B and limited the amounts the medical provider could recover for MRI services under the Florida No-Fault Statute. Id.

The trial court and the appellate court each rejected this argument, concluding that “subsections 627.736(5)(a)(2)(f), (5)(a)(3), and (5)(a)(4) did not authorize a PIP insurer to utilize any restrictions or limitations applicable to the Medicare program when determining the amounts due for MRI services” under the circumstances of the case. Id. The second district explained that subsections (5)(a)(2)(f) and (5)(a)(3) expressly designated “the participating physicians schedule of Medicare Part B” as the fee schedule to be used in calculating the minimum amount of money insurance companies were statutorily required to pay for the type of medical services provided. Id. at 137. The court further found as follows:

Subsections (5)(a)(2)(f) and (5)(a)(3) unambiguously refer to the participating physicians schedule of Medicare Part B as the schedule upon which to rely. The OPD fee schedule amount payable by Medicare under OPPS is a distinct and separate component of Medicare Part B. As recently stated by the federal district court in All Family Clinic, “[t]he OPPS schedule is an entirely separate component of the Medicare B program from the participating physicians schedule.” The inclusion of the phrase “the allowable amount” in subsections (5)(a)(2)(f) and (5)(a)(3) does not alter the plain meaning of these subsections when that phrase is read in context with the remainder of these PIP provisions. This court would have to ignore the phrase “under the participating physicians schedule,” in order to read these subsections in the manner suggested by the Insurance Companies.
Inasmuch as subsections (5)(a)(2)(f) and (5)(a)(3) unambiguously referred to, and only to, Medicare Part B’s participating physicians schedule, the minimum amount due for the MRI services provided in a nonemergency, nonhospital setting to the Insurance Companies’ PIP insureds covered under Florida law could not have been capped by the OPD fee schedule amount payable by Medicare under OPPS.

Id. at 137-38 (internal citations omitted).

The reasoning in AFO Imaging- suggests the NCCI edits are not part of Florida’s No-Fault Statute. The Legislature only incorporated the “participating physicians schedule of Medicare Part B” in the statute. The fact that the Legislature specifically referred to a portion of Medicare Part B but did not mention the NCCI edits or any other part of the Medicare system suggests that it intended only to incorporate the participating physicians fee schedule of Medicare in the Florida No-Fault Statute and not the entire Medicare statute as State Farm claims. See All Family Clinic of Daytona Beach Inc. v. State Farm Mut. Auto. Ins. Co., 685 F.Supp.2d 1297, 1303 (S.D.Fla.2010) (refusing to assume Florida’s Legislature intended to incorporate all of the Medicare statute into section 627.736 where it chose to specifically reference only the participating physicians schedule); see also Young v. Progressive Se. Ins. Co., 753 So.2d 80, 85 (Fla.2000) (failing to include self-insured motorist policy exclusions in list of authorized exclusions set forth in statute indicated legislative intent to not permit self-insured motorist policy exclusions).

The language of section 627.736(5)(a)4. further supports a finding that the Legislature did not intend for the NCCI edits or other limitations imposed in Medicare cases to be imposed under PIP. That provision states that:

4. Subparagraph 2. does not allow the insurer to apply any limitation on the number of treatments or other utilization limits that apply under Medicare or workers’ compensation. An insurer that applies the allowable payment limitations of subparagraph 2. must reimburse a provider who lawfully provided care or treatment under the scope of his or her license, regardless of whether such provider would be entitled to reimbursement under Medicare due to restrictions or limitations on the types or discipline of health care providers who may be reimbursed for particular procedures or procedure codes.

§ 627.736(5)(a)4., Fla. Stat. Contrary to State Farm’s claims, this language does not support a finding that the Legislature intended to incorporate all of Medicare into the PIP statute except those portions set forth in subsection (5)(a)4. Instead, the plain language of subsection (5)(a)4. states that, under PIP, an insurer may not apply any limitation on the number of treatments or utilization limits that would apply under Medicare. This language clearly prohibits an insurance company from treating PIP claims as if they were Medicare claims.

For the previously stated reasons, the Legislature did not intend to incorporate the NCCI edits into the Florida No-Fault Statute. As such, it was error for the county court to find otherwise and to enter final summary judgment in State Farm’s favor. See All Family Clinic, 685 F.Supp.2d 1297; Nationwide Mut. Fire Ins., 71 So.3d 134; ISOT Med. Ctr., Corp. v. State Farm Mut. Auto Ins. Co., 17 Fla. L. Weekly Supp. 1245a (Fla. 11th Cir.Ct. Aug. 6, 2010); DWFII Corp., 17 Fla. L. Weekly Supp. 1235a.

State Farm argues alternatively that the Florida No-Fault Statute incorporates the NCCI edits through its reference to the Office of the Inspector General (OIG) in section 627.736(5)(d), Florida Statutes. That section instructs an interested party to refer to the OIG, among other authorities, for guidance in determining if a provider has properly submitted the bill to a PIP insurer. State Farm reasons that because the OIG has adopted and endorsed the NCCI edits in its published guidelines, the reference to OIG incorporates the NCCI edits into the Florida No-Fault Statute. We find this argument without merit.

We find that the Legislature’s reference to the OIG does not incorporate the NCCI edits into the Florida No-Fault Statute. Since we have determined that the NCCI edits are not a part of the Florida No-Fault Statute, the other issues raised on appeal are moot. Summary judgment entered in favor of State Farm is reversed and the case is remanded to the trial court to enter a judgment in favor of SOCC.

REVERSED and REMANDED.

PALMER and TORPY, JJ., concur.

      . CMS is a branch of the United States Department of Health and Human Services, which administers Medicare, Medicaid and the Children's Health Insurance Program. https://questions.cms.hhs.go v/app/an - swers/detail/aid/l/7what-is-cms?.

      . The parties disagree about which version of the Florida No-Fault Statute applies to this case. State Farm argues the statute that came into effect July 1, 2008, is applicable here. SOCC claims that the prior statute applies because the contract of insurance between State Farm and its insured was entered into before July 1, 2008. The issues in this case are not related to the contractual language of the policy but rather whether proper payment was made to SOCC pursuant to the statute. Because the claim was denied after July 1, 2008, the 2008 version of the statute applies here.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Michael A. ALVIS, Former Husband, Appellant, v. Phyllis C. ALVIS, Former Wife, Appellee.
    No. 1D11-2189.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Rehearing Denied Sept. 7, 2012.

      Rhonda S. Clyatt, Panama City, for Appellant.
    Russell S. Roberts, Marianna, for Appel-lee.
   PER CURIAM.

Michael A. Alvis appeals a final judgment dissolving his marriage to Phyllis C. Alvis. Finding no merit to the issues raised regarding the equitable distribution of marital property and the foreclosure of the marital home, we affirm without further discussion. However, we dismiss for lack of jurisdiction that portion of the appeal challenging entitlement to attorney’s fees. The judgment does not set the amount of fees and thus is not a final order subject to review. Miller v. Miller, 801 So.2d 1056,1057 (Fla. 1st DCA 2001).

AFFIRMED IN PART and DISMISSED IN PART.

BENTON, C.J., CLARK and MAKAR, JJ., concur.


text:
    Reggie GRIFFIN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3229.
    District Court of Appeal of Florida, First District.
    July 19, 2012.
    Rehearing Denied Sept. 4, 2012.
    Reggie Griffin, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

DAVIS, LEWIS, and MAKAR, JJ., concur.


author: BENTON, C.J.

text:
    Lawrence Dewayne SLOCUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6585.
    District Court of Appeal of Florida, First District.
    July 24, 2012.
    Rehearing Denied Sept. 4, 2012.

      Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   ORDER DISMISSING APPEAL

BENTON, C.J.

Lawrence Dewayne Slocum appeals an order denying in part the motion he filed pursuant to Florida Rule of Criminal Procedure 3.850. We dismiss as untimely his appeal from the order finally deciding his claims for collateral relief.

Collateral proceedings began with a motion challenging convictions and sentences under Rule 3.850, and ended on July 27, 2011, when the postconviction court entered the order granting the motion in part and denying it in part: The court denied all relief as to the convictions, but set aside the sentences. In addition to disposing of all claims set out in the motion, the circuit court’s order appointed the Office of Regional Counsel to represent the movant as the defendant in the original case when he appeared for resentencing.

After resentencing in the original case, which occurred on October 19, 2011, counsel perfected an appeal by notice of appeal filed on November 7, 2011. Then, on November 17, 2011, Mr. Slocum filed another notice of appeal pro se, which reflected an intention to appeal, not only the resentenc-ing, but the order of July 27, 2Ó11, as well, insofar as it had denied collateral relief (although the notice of appeal referenced an apocryphal order purportedly denying collateral relief on October 19, 2011). New appointed counsel filed a brief raising only one issue, an issue going, not to the resen-tencing, but to the postconviction court’s summary denial of a claim stated in the Rule 3.850 motion.

When we ordered Mr. Slocum to show cause why his appeal from denial of collateral relief should not be dismissed as untimely, counsel argued that the November 7 notice of appeal

created jurisdiction to review not only the resentencing necessitated by the partial grant of relief on Slocum’s motion for postconviction relief, but also the July 27, 2011, partial denial of post-conviction relief. See King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001) (concluding that “the better course” in appeals in this posture is to allow all of the appellant’s challenges to remain in one case and to redesignate the appeal as a direct appeal from the new sentence”).

But King v. State, 795 So.2d 1086 (Fla. 1st DCA 2001), does not control here. Our holding in King applies only when the appeal is both timely as to the resentenc-ing and timely as to the order denying the motion for postconviction relief.

The July 27, 2011 order denying relief in part and granting relief in part conclusively resolved all of Mr. Slocum’s postconviction claims, and finally concluded collateral proceedings.

An order denying in part and granting in part relief ... marks the end of the judicial labor which is to be expended on the motion, and the order is final for appellate purposes.... [I]f the part of the motion which is granted requires subsequent action on the principal case under attack, such as resentencing, [there is] no jurisdictional impediment imposed by the appeal from the postcon-viction motion to prevent that action.

Cooper v. State, 667 So.2d 932, 933 (Fla. 2d DCA 1996). We have held that “resen-tencing [in the original case] is a de novo proceeding,” Jones v. State, 35 So.3d 69, 70 (Fla. 1st DCA 2010), legally discrete from the collateral proceeding.

Because no notice of appeal was filed within thirty days of the order disposing of the appellant’s postconviction claims, and no issue has been raised regarding the resentencing, we are without jurisdiction to hear this appeal. For that reason, we dismiss the appeal.

Dismissed.

CLARK and MAKAR, JJ., concur.

      . The trial court summarily denied all but one of the claims in King's 3.850 motion, but granted relief on one claim and imposed a new sentence. King v. State, 795 So.2d 1086, 1087 (Fla. 1st DCA 2001). King’s appeal “was initially set up in accordance with Florida Rule of Appellate Procedure 9.141(b)(2), which provides a streamlined procedure for appeals of orders that grant or deny postcon-viction relief without an evidentiary hearing.” Id. When we ordered the parties to show cause why the appeal should not be redesig-nated a direct appeal following a resentencing and why we should not relinquish jurisdiction to the trial court for appointment of counsel, both parties suggested that King’s "challenge to the resentencing could be redesignated and assigned a new case number, with the summary denial issues proceeding separately under the rule 9.140(b)(2) procedure.’’ We felt instead "that the better course in these circumstances is to allow all of the appellant's challenges to remain in one case and to redes-ignate the appeal as a direct appeal from the new sentence.” Id. When we stated that ”[a]ny challenges relating to the trial court's ruling on the rule 3.850 motion may be presented in this appeal,” id., the result was to afford the appellant counsel on all issues. But there was never any question concerning the timeliness of the notice of appeal from the order denying collateral relief in part.

      . See Jordan v. State, 81 So.3d 595, 596 (Fla. 1st DCA 2012) (order granting Jordan's 3.800(a) motion and ordering a separate hearing for resentencing held to be a final order). But see State v. Huerta, 38 So.3d 883, 884-85 (Fla. 3d DCA 2010) (state's time for appeal began to run once resentencing occurred, not when the court granted 3.800(a) motion).


author: SWANSON, J.

text:
    Sedecki Pierre TOLER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3623.
    District Court of Appeal of Florida, First District.
    July 24, 2012.

      Nancy A. Daniels, Public Defender, and Gail E. Anderson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

Sedecki Pierre Toler (“appellant”) was found guilty by a jury of attempted second-degree murder with a firearm, robbery with a firearm, and carjacking with a firearm. In that same special interrogatory verdict, the jury also found appellant actually “possessed” a firearm, “carried, displayed, used, threatened to use, or attempted to use,” a firearm, and, in fact, “discharged” a firearm during the course of the commission of the crimes. Judgment was entered in accordance with the jury’s verdict and appellant was sentenced to concurrent twenty-five-year prison terms on each count, along -with a twenty-year minimum mandatory sentence in accordance with section 775.087(2)(a)2., Florida Statutes (2009), for discharging the firearm during the commission of the felonies. On appeal, he argues for reversal of his judgment and sentences, raising four points. We affirm Points I, II, and IV without further comment. Point III, however, raises a meritorious argument entitling appellant to a new trial due to prose-cutorial misconduct based on improper comments made during closing arguments.

Concerning the events that took place on June 27, 2010, the date on which the crimes allegedly occurred, the testimony and evidence adduced at trial established a violent struggle took place at the home of Michael Brown, resulting in bruising and a “graze” injury to Brown’s head. The events leading up to this struggle, along with the identity of the aggressor allegedly in possession of the gun, were issues hotly disputed at trial. According to Brown, appellant approached him while he was outside standing by his Jeep Cherokee, asked him for water, and then ushered him into his home at gunpoint while holding a bottle of soda in his other hand. Appellant demanded that Brown give him all of his money. Once they reached the kitchen, Brown leaned down and reached into the refrigerator to get appellant a drink, heard a gunshot, and felt warmth on the back of his head. Brown looked up at appellant, who began swearing and threw a nearby deep fryer onto the floor. Brown gave him all the money he had, and appellant took his keys and began to walk out the door after ordering Brown to lie down on the floor. As appellant was leaving, Brown grabbed him and a struggle ensued during which appellant hit Brown on the forehead with the gun. Brown ran out of his house and across the street to a neighbor’s home, where the neighbor called 9-1-1 for assistance.

In contrast, appellant testified he did nothing with the intent to kill or otherwise harm Brown, and did not steal any money or other property from Brown. Instead, according to appellant, Brown drove past him while he was walking along the side of the road. Brown stopped, turned around, and approached appellant to ask for directions to a certain road. Appellant got into the Jeep and showed Brown where the road was, but Brown passed by the road and, instead, stopped at a convenience store to get them both a drink. Brown returned with a bottle of Sunkist for appellant, and then drove appellant back to his house. Appellant testified he was not armed with a firearm, and did not pull a gun on Brown as they were walking into the house. When they entered Brown’s home, they sat down on the couch and Brown turned on the television. Appellant asked if he could use the bathroom. When he came out, he found Brown in the kitchen “fixing some liquor.” He offered some to appellant, but appellant declined. Brown then propositioned appellant for sex in return for twenty dollars, touching him in a “sexual way.” When appellant rejected the offer, Brown became angry and the two began to struggle, at which point the deep fryer was knocked over. Appellant’s intention was to get Brown off of him. The struggle carried through to the living room, where appellant tried to leave through the front door. Appellant testified Brown took a “Taser” from a pouch in his pocket and tried to use it on appellant. Appellant also saw a small firearm that came from Brown’s back pocket. After struggling together for approximately ten minutes, Brown left the house first, while appellant was still on the floor. There was grease and blood spatter on the floor along a path that led to the front door. Appellant saw Brown’s keys to the Jeep on the floor. He took them and drove away in the Jeep so that Brown would not be able to get in the vehicle and follow him had he instead fled on foot. Appellant denied taking the Jeep for his own use.

The Jeep was eventually recovered in a field near to where appellant lived. A Sunkist bottle was recovered from Brown’s kitchen bearing appellant’s DNA, as later confirmed through forensic analysis. The neighbor who placed the 9-1-1 call informed the operator that a guy had just robbed Brown, stolen his car, and that Brown was bleeding and needed an ambulance. When the police arrived, Brown was described as “hysterical” and told the responding officer that the robber had possessed a black revolver. The testimony from the interviewing investigator, however, was inconclusive as to whether the graze wound on the back of Brown’s head was caused by a gunshot. As to the bruised area on Brown’s forehead, the investigating officer commented that it “[i]t looked a little deeper than it would be if someone were punched,” and described the wound as if Brown had been “hit with some type of item, either a pot, a pan, a butt of a gun.” No gun, though, was ever found, and no bullets were recovered from the crime scene.

At the start of his closing argument, the prosecutor told the jury:

Mr. Brown wakes up every morning, but for the grace of God; that’s what he thinks, but for the grace of God. He feels he’s lucky to be alive because back on June 27, 2010, he came across evil. The kind of person who wanted to rob him and shoot him and kill him.

Defense counsel immediately objected to “the vilification of the defendant.” The trial court sustained the objection but declined to give a curative instruction. Later, the prosecutor directed his comments to the credibility of appellant’s testimony concerning his confrontation with Brown, exhorting the jury to accept the proposition that since his initial meeting with the investigator, appellant’s story had “been spiced up” and “amped up.” According to the prosecutor, “This is a person who is willing to lie to get out of trouble.... [I]f there wasn’t the physical evidence, you would be hearing a story about misidentifi-cation. You would be hearing a story about how all young black males look the same.” Defense counsel’s objection was overruled. The prosecutor continued:

There is [sic] only so many defenses that a person could have. I wasn’t there. Or well, if it was me, the other person is worse off. That’s what has happened now.
Can’t go with the story anymore of it wasn’t me, you go into character assassination. Michael Brown is a bad person. He’s gay. He likes young men. He basically uses prostitutes. He’s some sort of sexual deviant. I’m honestly surprised that you didn’t hear that he makes meth in his bathtub—

Again, defense counsel objected, and the trial court sustained the objection, striking the comment and instructing the jury to disregard the last statement. Defense counsel also informed the trial court he had “a motion,” to which the court replied they would “take up the motion later.” Accordingly, at the close of the prosecutor’s comments, defense counsel moved for a mistrial, basing his argument “upon the highly inflammatory comment,” and stressing, “I mean, there’s both when he got in derogatory comments about the defendant, racial things that were not part — nothing in evidence. And I think it’s a mistrial, Judge.” Counsel continued:

Judge I would first point out that there is no allegation of an attempted rape at gunpoint. It was a struggle after a denial. But to say that the next thing you’re going to hear from defense counsel is that he was making meth at his house is totally ... inappropriate and has [sic] done nothing of the sort.... To say that is an indirect attack both on [appellant] and on myself, as a professional in this courtroom — it’s designed to undercut my credibility and make the argument that I make sounded [sic] less credible than they [sic] should be. There is nothing you can do to unring the bell, with all due respect, Your Hon- or.... [T]his is a very critical case. The stakes are high. There is a factual — very delicate factual balance. It’s not like we’re doing this in the face of obvious overwhelming evidence. I don’t think there is any instruction that can cure that, and I think it needs to be — we need to do it over.

The trial court denied the motion for mistrial. Appellant now argues that ruling was in error and the prosecutor’s comments were egregiously improper and deprived him of a fair trial. We agree.

The standard of appellate review of alleged prosecutorial misconduct is whether “ ‘the error was so prejudicial as to vitiate the entire trial.’ ” State v. Murray, 443 So.2d 955, 956 (Fla.1984) (quoting Cobb v. State, 376 So.2d 230, 232 (Fla. 1979)). See also Pacifico v. State, 642 So.2d 1178, 1184 (Fla. 1st DCA 1994) (same). In the case of prosecutorial misconduct in closing arguments, certain fundamental principals control. The statements “ ‘must not be used to inflame the minds and passions of the jurors so that their verdict reflects an emotional response to the crime or the defendant.’ ” Smith v. State, 28 So.3d 838, 862 n. 15 (Fla.2009) (quoting Bertolotti v. State, 476 So.2d 130, 134 (Fla.1985)). Rather, “[t]he purpose of closing argument is to present a review of the evidence and suggestions for drawing reasonable inferences from the evidence.” Fleurimond v. State, 10 So.3d 1140, 1148 (Fla. 3d DCA 2009). Accord Pierre v. State, 88 So.3d 354, 355, (Fla. 4th 2012) (“During closing argument, the prosecutor must confine argument to evidence in the record and not make arguments which cannot be reasonably inferred from the evidence.”). Further, “ ‘it is improper for a prosecutor to express a personal belief in the guilt of the accused, or in the veracity of the state’s witnesses.’ ” Pacifi-co, 642 So.2d at 1183-84 (quoting Jones v. State, 449 So.2d 313, 314 (Fla. 5th DCA), rev. denied, 456 So.2d 1182 (Fla.1984)). Significantly, in Pacifico, we cautioned that “[w]here the case against a defendant is weak or tenuous, a prosecutor’s contentions that the defendant is a liar could rarely, if ever, be construed as harmless error.” Id. at 1184 (citing Jones, 449 So.2d at 314-15). Nor can a prosecutor “engage in vituperative or pejorative characterizations of a defendant” or “needless sarcasm,” revealing that the prosecutor has “abandoned any semblance of professionalism.” Gore v. State, 719 So.2d 1197, 1201 (Fla.1998). Finally,

[i]t is impermissible for a prosecutor to comment in closing argument upon matters outside the record [and,] [b]y the same token, because a jury can be expected to attach considerable significance to a prosecutor’s expressions of personal beliefs, it is inappropriate for a prosecutor to express his or her personal belief about any matter in issue.

Pacifico, 642 So.2d at 1184 (citations omitted).

In this case, the prosecutor’s references to appellant as being a liar, to appellant’s race, and to matters for which there was absolutely no support in the record, in a manner both pejorative and sarcastic — all of which formed the basis for appellant’s motion for mistrial — were so invasive and inflammatory, “it is questionable whether the jury could put aside the prosecutor’s character attacks, and decide the case based strictly upon the evidence.” Id. Thus, in situations “where witness credibility is the pivotal issue, inappropriate prosecutorial comment which might be considered harmless in another context, can become prejudicially harmful.” Id. (citing Hill v. State, 477 So.2d 553 (Fla.1985)). As we stressed in Bass v. State, 547 So.2d 680 (Fla. 1st DCA 1989), when the case presents “a two witness ‘swearing match’ where there is little or nothing to corroborate the testimony of the witnesses, witness credibility is pivotal and inappropriate prosecutorial comment which might be found to be harmless in another setting may become prejudicially harmful.” Id. at 682. Because the present case chiefly involved a conflict in the testimony between appellant and Michael Brown, the undeniably crucial issue “was the jurors’ perception of appellant’s credibility.” Pacifico, 642 So.2d at 1184.

We therefore consider it appropriate to reiterate the jurisprudential principle expressed in Pacifico that “[t]he cornerstone of our system of justice is the right of an accused to be judged fairly by a jury of his or her peers.” Id. at 1184-85. On the record before us, we conclude, as we did in Pacifico, that “the repetitious and egregious nature of the prosecutorial improprieties ... became such a feature of the trial as to deprive appellant of that fundamental right.” Id. at 1185. In this regard, the state cannot demonstrate “beyond a reasonable doubt” that the prosecutor’s comments impugning appellant and his defense “did not contribute to the verdict.” State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986). Consequently, we must reverse appellant’s conviction and remand for a new trial.

AFFIRMED, in part; REVERSED, in part; and REMANDED for a new trial.

DAVIS, and WETHERELL, JJ., concur.


author: DAVIS, Judge.

text:
    I.M., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-465.
    District Court of Appeal of Florida, Second District.
    July 27, 2012.

      James Marion Moorman, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Tonja Rene Vickers, Assistant Attorney General, Tampa, for Appel-lee.
   DAVIS, Judge.

I.M. challenges the order of the trial court finding him guilty of the delinquent acts of obstructing or opposing an officer without violence, trespass, and burglary of an unoccupied dwelling. In that order, the trial court also withheld adjudication and placed I.M. on probation until his nineteenth birthday. The burglary allegation stems from a separate incident, and we affirm the disposition order as to that allegation without further comment. However, we reverse the disposition order as to the trespass and obstruction allegations.

Those allegations stem from an incident at a public library during which an off-duty sheriffs deputy was outside the library questioning a group of teenagers about horseplay within the library. I.M., who was not one of the teenagers in question, began to interfere by yelling profanity and racial slurs at the deputy. I.M. told the original group of teens that they did not have to listen to the deputy. The deputy instructed I.M. to leave, but I.M. did not and instead continued to yell profanity. The deputy testified that he had to interrupt his original investigation three times to admonish I.M. The deputy ultimately approached I.M. in order to arrest him, but I.M. jumped onto his bicycle and tried to flee.

On appeal, I.M. argues that the trial court erred in denying his motion for dismissal as to these two allegations because (1) the State’s evidence that I.M. merely yelled at the deputy is not enough to constitute obstruction and (2) the State failed to establish a prima facie case for trespass because it did not present evidence that the deputy had been authorized by the property owner to issue a trespass warning.

As to the obstruction allegation, this court has noted that

[i]f a police officer is not engaged in executing process on a person, is not legally detaining that person, or has not asked the person for assistance with an ongoing emergency that presents a serious threat of imminent harm to person or property, the person’s words alone can rarely, if ever, rise to the level of an obstruction.

D.G. v. State, 661 So.2d 75, 76 (Fla. 2d DCA 1995). “Thus, obstructive conduct rather than offensive words are normally required to support a conviction [for obstructing].” Id. Here, the deputy was merely talking to a group of teens about acting up in the library when I.M. started shouting at him. We therefore agree with I.M. that his words alone could not be the basis for the obstruction charge.

However, if the deputy was acting in his lawful duty when he attempted to arrest I.M. for trespass, then I.M.’s act of getting on his bicycle and fleeing would constitute obstructing. See § 843.02, Fla. Stat. (2009) (“Whoever 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 misdemean- or... .”). Pursuant to the trespass statute, section 810.09(2)(b), Florida Statutes (2009), a trespass is committed “[i]f the offender defies an order to leave, personally communicated to the offender by the owner of the premises or by an authorized person.” (Emphasis added.) As such, as an element of trespass, the State here had to show that the deputy was authorized to issue the trespass warning. Absent this showing, the deputy was not in the “lawful execution of [a] legal duty” and there was no basis for the obstruction charge.

“‘Common understanding’ dictates that the phrase ‘other authorized person’ is to be read in light of the preceding phrase ‘owner of the premises.’ ” State v. Dye, 346 So.2d 538, 541-42 (Fla.1977). Furthermore, “[o]n public premises, authorized personnel include[ ] those persons who have been given either express or implied authority from the chief executive.” Id. at 542 (concluding that with regard to a public school building, the school board was the chief executive). Here, on the morning of trial, the trial court granted defense counsel’s motion in limine to exclude any hearsay testimony by the off-duty deputy that the head librarian had given him authority to issue trespass warnings. The closest the State came to establishing such authority was asking the deputy, “As a Hillsborough County Sheriffs Deputy do you have the authority to issue trespass warnings?” The deputy responded, “We do.” This, however, is insufficient to establish that the deputy had “been given either express or implied authority from the chief executive” of the library. See Dye, 346 So.2d at 541-42; cf. Fox v. State, 580 So.2d 313, 314 (Fla. 3d DCA 1991) (finding sufficient evidence of authorization where, despite a lack of explicit testimony that chief executive gave police officer authority to issue trespass warnings, “[a]t trial both the [public housing] project manager and the arresting officer testified about the relationship between the Modello [Housing] Project and the police department with respect to efforts to control crime and the sale of drugs” and concluding that “[t]he project manager certainly has the authority to enlist the assistance of the police” (emphasis added)).

Here, the chief librarian did not testify, and the State was unable to establish the off-duty deputy’s authority. As such, the State failed to prove all the elements of trespass, and we therefore reverse the trial court’s disposition order as to that allegation. Furthermore, because the deputy was not executing a legal duty at the time I.M. attempted to ride away on his bike, we also reverse the disposition order as to the obstructing charge.

We note that the State cites M.M. v. State, 674 So.2d 883 (Fla. 2d DCA 1996), for the proposition that the deputy had the right to ask I.M. to leave an area that is otherwise open to the public. However, even if the deputy did possess such a right, I.M.’s failure to comply with the request would not be a valid basis for an arrest for trespass after warning. Simply asking a member of the public to leave the area does not amount to issuing a trespass warning.

Affirmed in part and reversed in part.

KELLY and WALLACE, JJ., Concur.


text:
    Juan A. FLORES-MONTES, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-319.
    District Court of Appeal of Florida, First District.
    July 30, 2012.
    Rehearing Denied Sept. 7, 2012.
    Juan A. Flores-Montes, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See State v. Adkins, 96 So.3d 412, 2012 WL 2849485 (Fla.2012).

MARSTILLER, RAY, and SWANSON, JJ., concur.


author: GERBER, J.

text:
    Mark VALEO, Appellant, v. EAST COAST FURNITURE CO. and Joey P. Neering, Appellees.
    No. 4D10-5141.
    District Court of Appeal of Florida, Fourth District.
    Aug. 1, 2012.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Gary W. Roberts and Michael K. Beck of Gary Roberts & Associates, P.A., West Palm Beach, for appellant.
    Beth Gordon of The Gordon Law Firm, Williston, for appellee.
   GERBER, J.

The plaintiff appeals from the circuit court’s final summary judgment in favor of defendant East Coast Furniture Co. (the “defendant”) on his claims for negligent hiring, negligent retention, and vicarious liability arising out of an incident in which the defendant’s employee swung a padlock at him, hitting him in the eye. On the negligent hiring and negligent retention claims, the plaintiff argues the court erred in finding that, at the time of the incident, the defendant did not owe a duty to him. On the vicarious liability claim, the plaintiff argues he presented sufficient evidence to create a genuine issue of material fact that, at the time of the incident, the defendant’s employee was acting in the course of his employment and to further the defendant’s interests. We disagree with the plaintiff on the negligent hiring and negligent retention claims, but agree with the plaintiff on the vicarious liability claim. Therefore, we affirm in part and reverse in part.

The record presents the following facts. The defendant’s employee was driving the defendant’s truck in between jobs when the truck and the plaintiffs truck collided. The plaintiff and the defendant’s employee pulled into a parking lot. The plaintiff exited his truck and approached the driver’s side of the defendant’s truck. The defendant’s employee grabbed a padlock and swung it in the plaintiffs direction, hitting him in the eye. The defendant’s employee later testified at his deposition that the plaintiff tried to pull him out of the truck through the window. According to the employee, he thought the plaintiff was trying to rob him of the cash he was carrying for the defendant’s business, and so he swung the padlock in the plaintiffs direction to prevent the robbery. The plaintiff, during his deposition, denied that he was the aggressor.

The plaintiff sued the defendant and the employee. The complaint contained five counts. Count I related to the collision and is not relevant here. Count II alleged a negligence claim against the employee for the padlock incident and also alleged a vicarious liability claim against the defendant for the employee’s alleged negligence in the padlock incident. Count III alternatively alleged a battery claim against the employee for the padlock incident. Counts IV and V respectively alleged a negligent hiring claim and a negligent retention claim against the defendant arising out of its alleged knowledge of its employee’s criminal history before the padlock incident.

The defendant moved for summary judgment on the negligent hiring, negligent retention, and vicarious liability claims. On the negligent hiring and negligent retention claims, the defendant argued that it did not owe a duty to the plaintiff because he was not within its foreseeable zone of risk for the padlock incident. On the vicarious liability claim, the defendant argued that it could not be held hable because the padlock incident did not arise out of the use of its vehicle and, therefore, its employee could not have been acting to further its interest. The circuit court agreed with the defendant’s arguments and granted the defendant’s motion for summary judgment as to all three claims.

This appeal followed. On the negligent hiring and negligent retention claims, the plaintiff argues the court erred in finding that, at the time of the padlock incident, the defendant did not owe a duty to him. On the vicarious liability claim, the plaintiff argues he presented sufficient evidence to create a genuine issue of material fact that, at the time of the padlock incident, the defendant’s employee was acting in the course of his employment and to further the defendant’s interests. Based on these arguments, our review is de novo. See R.J. Reynolds Tobacco Co. v. Grossman, 96 So.3d 917, 2012 WL 2400887 (Fla. 4th DCA 2012) (“The existence of a legal duty is purely a question of law and is subject to de novo review.”) (citation omitted); Flueras v. Royal Caribbean Cruises, Ltd., 69 So.3d 1101, 1107 (Fla. 3d DCA 2011) (an appellate court reviews an order granting summary judgment de novo to decide whether, after drawing every inference in favor of the non-moving party, there is any genuine issue of material fact).

On the negligent hiring and negligent retention claims, we agree with the circuit court’s finding that, at the time of the padlock incident, the defendant did not owe a duty to the plaintiff. The fifth district recently reached the same conclusion in a case with similar facts, Magill v. Bartlett Towing, Inc., 35 So.3d 1017 (Fla. 5th DCA 2010). In Magill, the defendant’s tow truck driver, who had a criminal history, was off duty when he pulled up behind the plaintiffs car in the defendant’s tow truck with its emergency lights on. The driver stepped out of the truck, approached the plaintiffs car, and screamed at her to get out of her car. When the plaintiff complied, the driver pushed her to the ground and stole her car. The plaintiff sued the defendant for negligent hiring and negligent retention. The circuit court dismissed the action. The fifth district affirmed. According to our sister court, the theories of negligent hiring and negligent retention “do not render an employer strictly liable for criminal acts committed by a ‘dangerous employee’ against a third person.” Id. at 1020 (citation omitted). The court stated that, for an employer to owe a plaintiff a duty to exercise reasonable care in hiring and retaining safe and competent employees, “that plaintiff must be within a zone of risk that was reasonably foreseeable to the employer.” Id. (citation omitted). The court explained that “the plaintiff is required to allege facts that would establish some relationship or nexus between the plaintiff and the tortfeasor’s employment from which a legal duty would flow from the defendant-employer to that particular plaintiff.” Id. at 1021 (citation omitted). Applying the foregoing principles, the court concluded that the plaintiff did not allege a sufficient nexus between her and the driver’s employment to support a finding that the defendant owed her a duty to hire and retain non-dangerous employees. Id. The court reasoned, among other things, that the driver did not meet the plaintiff as a direct consequence of his employment. Id.

Here, like the fifth district in Magill, we conclude that the plaintiff did not allege a sufficient nexus between him and the employee’s employment to support a finding that the defendant owed him a duty to hire and retain non-dangerous employees. The employee did not meet the plaintiff as a direct consequence of his employment and, in our opinion, his contact with the plaintiff during the padlock incident would not have been reasonably foreseeable to the defendant in the context of hiring or retaining its employee. Cf. Tallahassee Furniture Co. v. Harrison, 583 So.2d 744, 750-51 (Fla. 1st DCA 1991) (facts were sufficient to show the defendant owed a duty to the plaintiff where the plaintiff, as the defendant’s customer, came into contact with the defendant’s employee as the direct result of the employment).

The plaintiff attempts to distinguish Ma-gill on the basis that, in Magill, the defendant’s driver was off duty and not seeking to further his employer’s interest when he injured the plaintiff, but in this case, the defendant’s employee was on duty and, according to his testimony, was seeking to further the defendant’s interest when he injured the plaintiff. While the plaintiff is correct in that distinction, it is a distinction without a difference as to a negligent hiring or negligent retention claim. To establish a duty on such a claim, the issue is not whether the incident occurred while the defendant’s employee was on duty or off duty or whether the employee was seeking to further the defendant’s interest. See Magill, 35 So.3d at 1020 (“[T]he negligent hiring and negligent retention theories of liability permit an injured plaintiff to recover damages against an employer for acts an employee committed outside the scope and course of employment.”) (citation omitted). The issue is whether the incident was reasonably foreseeable. Id. Here, we conclude that the padlock incident was not reasonably foreseeable to the defendant in the context of hiring or retaining its employee, and thus it owed no duty to the plaintiff. To paraphrase Ma-gill, holding otherwise potentially would render the defendant strictly liable under theories of negligent hiring or negligent retention for tortious acts committed by a “dangerous employee” against a third person. /A

The vicarious liability claim, however, is another matter. On that claim, the issue is not whether the incident was reasonably foreseeable. The issue is whether the employee committed the alleged negligent act: (1) within the scope of employment, or (2) during the course of employment and to further a purpose or interest of the employer. “Generally ... batteries by employees are held to be outside the scope of an employee’s employment and, therefore, insufficient to impose vicarious liability on the employer.” Nazareth v. Herndon Ambulance Serv., Inc., 467 So.2d 1076, 1078 (Fla. 5th DCA 1985) (citations omitted). However, if the employee committed the battery “during the course of the employment and to further a purpose or interest, however excessive or misguided, of the employer,” then a plaintiff still may impose vicarious liability on the employer. Id.

Here, the plaintiff presented sufficient evidence to create a genuine issue of material fact that the defendant’s employee swung the padlock during the course of his employment and to further the defendant’s purpose or interest. The employee testified at his deposition that he thought the plaintiff was trying to rob him of the cash he was carrying for the defendant’s business, and so he swung the padlock in the plaintiffs direction to prevent the robbery. If the plaintiff proves this fact to be true at trial and otherwise satisfies his burden of proof as to the employee’s alleged negligence, then the plaintiff may impose vicarious liability on the defendant for such negligence.

In sum, the circuit court did not err in granting the defendant’s motion for summary judgment as to the plaintiffs negligent hiring and negligent retention claims arising out of the padlock incident. However, the court erred in granting the defendant’s motion for summary judgment as to the plaintiffs vicarious liability claim against the defendant for the employee’s alleged negligence in the padlock incident. We reverse and remand for reinstatement of the vicarious liability claim.

Affirmed in part, reversed in part, and remanded.

TAYLOR and CIKLIN, JJ., concur.


text:
    Jason Eugene WOODS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-456.
    District Court of Appeal of Florida, Fifth District.
    Aug. 3, 2012.

      James S. Purdy, Public Defender, and Anne Moorman Reeves, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Appellee.
   ON MOTION TO RECALL MANDATE

PER CURIAM.

Jason Eugene Woods seeks recall of this Court’s per curiam opinion affirming his conviction, suggesting conflict with Alvarado v. State, — So.3d -, 2012 WL 2600053 (Fla. 5th DCA 2012), decided the same day mandate issued in the above-styled case. We grant Woods’ Motion to Recall Mandate and substitute this opinion.

Woods appeals his conviction of second-degree murder with a firearm for which he is serving a life sentence that carries a 10-20-life mandatory minimum of twenty-five years. Finding no merit to Woods’ argument as to the admission of evidence or the denial of the motion for judgment of acquittal, we affirm without comment. We write only to address Woods’ claim of fundamental error in the court’s instruction to the jury on his claim of self-defense.

Without objection, the trial court instructed the jury, in pertinent part, as to the following:

An issue in this case is whether the defendant acted in self-defense. It is a defense to the offense with which Jason Woods is charged if the death of James Allbritton resulted from the justifiable use of deadly force.
A person is justified in using deadly force if he reasonably believes that such force is necessary to prevent imminent death or great bodily harm to himself, or the imminent commission of burglary with a battery while armed against himself.
To prove the crime of burglary the following three elements must be present:
One, James Allbritton entered a structure owned by or in the possession of James Woods.
Two, at the time of entering the structure, James Allbritton had the intent to commit a robbery of that structure.
Three, James Allbritton was not licensed or invited to enter the structure.

(Emphasis added).

Jury instructions are subject to the contemporaneous objection rule and can be raised on appeal absent an objection only if fundamental error occurred. Taylor v. State, 62 So.3d 1101, 1119 (Fla. 2011). Review of a claim of fundamental error is de novo. Elliot v. State, 49 So.3d 269, 270 (Fla. 1st DCA 2010).

Fundamental error is error that reaches “down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). This analysis requires consideration of the error’s effect in context of the other instructions given, the evidence adduced at trial, and counsel’s arguments and strategies. Smith v. State, 76 So.3d 379, 383 (Fla. 1st DCA 2011).

When the instructional error involves an affirmative defense as opposed to an element of the crime, fundamental error only occurs where the instruction is so flawed as to deprive the defendant claiming the defense of a fair trial. Id. at 385 (citing Smith v. State, 521 So.2d 106, 108 (Fla.1988)). This occurs where a defendant is deprived of his or her sole or primary defense strategy, and that defense is supported by evidence adduced at trial not otherwise characterized as weak. McCoy v. State, 56 So.3d 37, 40 (Fla. 1st DCA 2010). If, however, the instruction as to the affirmative defense made it quite clear that the burden of proof was on the State to prove all the elements of the crime beyond a reasonable doubt, error in the instruction does not rise to the level of fundamental error. Smith, 521 So.2d at 108.

Woods argues the instruction improperly shifted the burden to him to establish Allbritton was attempting to commit the crime of burglary. For support, he cites to Montijo v. State, 61 So.3d 424, 425 (Fla. 5th DCA 2011), wherein this Court found fundamental error in an instruction that provided: “To prove the crime of Aggravated Battery, two elements must be proven beyond a reasonable doubt.” He also cites Alvarado v. State, 37 Florida Law Weekly D1607, wherein this Court found fundamental error in an instruction that provided: “To prove the crime of aggravated assault, the following four elements must be proven beyond a reasonable doubt.” We find no conflict with either Montijo or Alvarado. In Montijo, this Court determined it was evident that the jury would have believed the defendant shouldered the burden of proving battery beyond a reasonable doubt. To remedy the problem, this Court held that the trial court “should have omitted reference to any burden of proof, instead simply instructing on the requisite elements.” 61 So.3d at 427. The trial court in this case followed that directive.

While Woods acknowledges there was no explicit reference in the instruction to a burden of proof, he claims using the words “to prove” carried with it an implicit level of proof, however small, that suggested he had the burden of proving the elements of burglary. In Montijo, on the other hand, this Court stated it was the explicit use of the phrase “beyond a reasonable doubt” that “placed the burden upon Montijo to prove self-defense, depriving him of a fair trial and rising to the level of fundamental error.” Id. Without any such language in the instruction in this case, the burden of proving burglary was not placed on Woods. When read in its context, the instruction merely listed the elements of burglary, nothing more. We find the remaining objections to the jury instruction to be without merit.

AFFIRMED.

PALMER, TORPY and COHEN, JJ„ concur.

      . § 775.087, Fla. Stat. (2009).

      . The instructions virtually tracked the language of Florida Standard Jury Instruction (Criminal) 3.6(f), Justifiable Use of Deadly Force.