author: LABARGA, J.

text:
    Katherine KAAA, Petitioner, v. Joseph KAAA, Respondent.
    No. SC09-967.
    Supreme Court of Florida.
    Sept. 30, 2010.
    As Revised on Denial of Rehearing March 31, 2011.

      Mark A. Neumaier, Tampa, FL, for Petitioner.
    Ellen E. Ware and Jeanie E. Hanna of Ware Law Group, P.A., Tampa, FL, for Respondent.
   LABARGA, J.

This case is before the Court for review of the decision of the Second District Court of Appeal in Kaaa v. Kaaa, 9 So.3d 756 (Fla. 2d DCA 2009). The district court certified that its decision is in direct conflict with the decision of the First District Court of Appeal in Stevens v. Stevens, 651 So.2d 1306 (Fla. 1st DCA 1995). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. In order to resolve the conflict between these cases, this Court must determine whether and under what circumstances the passive appreciation of a marital home that is deemed nonmarital real property is subject to equitable distribution under section 61.075(5)(a)(2), Florida Statutes (2007). For the reasons expressed below, we conclude that contingent upon certain findings of fact by the trial court, passive appreciation of the marital home that accrues during the marriage is subject to equitable distribution even though the home itself is a nonmarital asset. We quash the Second District’s decision in Kaaa, and approve the First District’s decision in Stevens to the extent that it is consistent with this opinion. We begin by explaining the factual and procedural posture of this case and then conduct our analysis of the certified conflict.

FACTUAL AND PROCEDURAL BACKGROUND

Katherine and Joseph Kaaa married in 1980. For the next twenty-seven years, they resided in a home in Riverview, Florida, that Joseph Kaaa purchased about six months before the Kaaas’ marriage. Joseph Kaaa purchased the home for $86,500 and made a $2000 down payment. During the marriage, marital funds were used to pay down the mortgage as well as to improve the home by renovating the carport. Although the home was refinanced multiple times during the marriage, Katherine Kaaa was never granted an interest in the property. At the Kaaas’ final dissolution hearing in 2007, they stipulated that the current fair market value of their marital home was $225,000, and the remaining mortgage balance was $12,871.46. In its final judgment, the trial court found that the marital home was Joseph Kaaa’s non-marital real property, the mortgage balance had been reduced by $22,279, and the carport renovation increased the value of the home by $14,400. According to the trial court, the total enhancement value of the home (and the amount subject to equitable distribution) was $36,679. Concluding that Katherine Kaaa was entitled to equitable distribution of only the enhancement value of the marital home, the trial court awarded Katherine Kaaa an equalizing payment in the amount of $18,339.50, and ordered Joseph Kaaa to pay her this amount.

Katherine Kaaa appealed the award to the Second District Court of Appeal. Her sole argument was that the value of the passive appreciation of the marital home that accrued during the marriage was subject to equitable distribution. Relying on its decision in Mitchell v. Mitchell, 841 So.2d 564 (Fla. 2d DCA 2003), the Second District affirmed the judgment of the trial court and held that Katherine Kaaa was not entitled to equitable distribution of the value of the home’s passive appreciation. However, the district court also certified direct conflict with Stevens, a decision from the First District Court of Appeal.

ANALYSIS

We frame the question of law before us as follows:

When a marital home constitutes non-marital real property, but is encumbered by a mortgage that marital funds service, is the value of the passive, market-driven appreciation of the property that accrues during the course of the marriage deemed a marital asset subject to equitable distribution under section 61.075(5)(a)(2), Florida Statutes (2007).

Because this is a pure question of law, our standard of review is de novo. See D’Angelo v. Fitzmaurice, 863 So.2d 311, 314 (Fla.2003) (stating that the standard of review for pure questions of law is de novo). As we explain below, we answer this question in the affirmative. First, we discuss the applicable statute, section 61.075(5)(a)(2), Florida Statutes (2007). Second, we discuss Stevens and Kaaa, respectively. Third, we discuss the proper method for calculating and allocating an award of passive appreciation.

Section 61.075(5)(a)(2), Florida Statutes (2007)

The dissolution of a marriage in Florida is governed by chapter 61 of the Florida Statutes. Particularly relevant to our analysis is section 61.075, which addresses the “[e]quitable distribution of marital assets and liabilities.” This section expressly provides what constitutes both “marital assets and liabilities” and “non-marital assets and liabilities.” Moreover, the statute provides that “in distributing the marital assets and liabilities between the parties, [absent a justification for an unequal distribution,] the court must begin with the premise that the distribution should be equal.” § 61.075(1), Fla. Stat. (2007). The statutory definition of “marital assets and liabilities” contained in section 61.075(5)(a)(2) provides in relevant part:

61.075 Equitable distribution of marital assets and liabilities.—
(5) As used in this section:
(a) “Marital assets and liabilities” include:
2. The enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both....

(Emphasis added.) This language clearly provides that under certain circumstances, the appreciation of a nonmarital asset is indeed a marital asset. We reject Joseph Kaaa’s argument that passive appreciation is not encompassed by the language in this section, and we conclude that the passive appreciation of a nonmarital asset, such as the Kaaa’s marital home, is properly considered a marital asset where marital funds or the efforts of either party contributed to the appreciation. Such findings are to be made by the trial court based on evidence presented by the parties. Although the district courts in Stevens and Kaaa applied section 61.075(5)(a)(2) in their analyses, they arrived at different conclusions about whether the passive appreciation of the respective marital homes constituted a marital asset. We address each case in turn.

Stevens

Although the Second District concluded that the value of the passive appreciation of the Kaaas’ home that accrued during the marriage was not subject to equitable distribution, the First District concluded otherwise on similar facts in Stevens, and held that “the trial court erred ... in failing to award the appellant an equitable portion of the appreciated value of the non-marital real property.” Stevens, 651 So.2d at 1307. In Stevens, the husband purchased real property and acquired a $20,000 mortgage debt before he married. During the first part of their marriage, the husband and wife lived on the property. The wife, who never worked outside of the home during the marriage, was never added to the title, and only the husband’s income was used to pay the mortgage. The trial court concluded that the property was the husband’s nonmarital asset and did not award the wife any portion of the value of the property’s passive appreciation. The First District reversed the trial court’s failure to award the wife a portion of the passive appreciation, stating that “[a]n asset brought by one party to a marriage, which appreciates during the course of the marriage, solely on account of inflation or market conditions, becomes in part a marital asset, if it is encumbered by indebtedness which marital funds service.” Id. at 1307. The court concluded that “the trial court erred in excluding from the equitable distribution plan the entire amount by which the ... property appreciated in value during the marriage, since marital funds were used to make the mortgage payments and pay the taxes.” Id. The district court rejected the argument that because only the husband’s income paid the mortgage, the wife was not entitled to a portion of the value of the passive appreciation. The court noted that each spouse’s funds are to be considered marital funds, and concluded that because marital funds were used to pay the mortgage and other obligations, the court should have awarded the wife a “reasonable proration of the appreciated value.” Id. (quoting Sanders v. Sanders, 547 So.2d 1014, 1016 (Fla. 1st DCA 1989)). We agree with the reasoning in Stevens to the extent that it concludes that the payment of the mortgage with marital funds subjected the passive appreciation to equitable distribution. However, we emphasize here that it is the passive appreciation in the value of the home that is the marital asset, not the home itself. As the First District Court of Appeal has noted, “improvements or expenditures of marital funds to a non-marital asset does not transform the entire asset into a marital asset; rather, it is only the ‘enhancement in value and appreciation’ which becomes a marital asset.” Martin v. Martin, 923 So.2d 1236, 1238-39 (Fla. 1st DCA 2006) (quoting Strickland v. Strickland, 670 So.2d 142, 143 (Fla. 1st DCA 1996)). Moreover, we emphasize that the trial court must make a finding of fact that the non-owner spouse made contributions to the nonmarital property during the course of the marriage. While these contributions need not be strictly monetary and may include marital funds or the efforts of either party, they must enhance the value of the property.

Kaaa

In Kaaa, the Second District noted that “marital funds were the source of virtually all of the monies used to service the mortgages on the property and the various expenses associated with it.” Kaaa, 9 So.3d at 759. Moreover, the district court noted that the application of Stevens to the facts in Kaaa would have produced a different result. The district court said:

Under the First District’s approach in Stevens, the Wife [Katherine Kaaa] would be entitled to equitable distribution of a share of substantially all of the passive appreciation in the Riverview property during the course of the parties’ twenty-seven-year marriage. However, under Mitchell, the Wife is not entitled to any portion of the considerable passive appreciation in the value of the property.

Kaaa, 9 So.3d at 759. While the trial court and district court correctly concluded that the Kaaas’ marital home is nonmarital real property, the value of the passive appreciation of the property that accrued during the marriage is a marital asset because (1) the value of the home appreciated during the marriage while marital funds were being used to pay the mortgage, and (2) Katherine Kaaa made contributions to the home. Because paying the mortgage is a prerequisite to enjoying the appreciation in value of the marital home, we conclude that principles of equity do not allow an owner spouse to receive the full benefit of the passive appreciation when the nonowner spouse contributed to the property, and marital funds were used to pay the mortgage. Such inequities must be balanced by the trial court making specific factual findings regarding the contributions of the nonowner spouse and the relationship of those contributions to the passive appreciation of the property.

Determining an Award of Passive Appreciation

We now turn to the method that a trial court should employ as it determines whether a nonowner spouse is entitled to a share of the passive appreciation and calculates the proper allocation. We note that the trial court’s task in this regard is an extremely fact-intensive one, and there are certain steps that each court must take. First, the court must determine the overall current fair market value of the home. Second, the court must determine whether there has been a passive appreciation in the home’s value. Third, the court must determine whether the passive appreciation is a marital asset under section 61.075(5)(a)(2). This step must include findings of fact by the trial court that marital funds were used to pay the mortgage and that the nonowner spouse made contributions to the property. Moreover, the trial court must determine to what extent the contributions of the nonowner spouse affected the appreciation of the property. Fourth, the trial court must determine the value of the passive appreciation that accrued during the marriage and is subject to equitable distribution. Fifth, after the court determines the value of the passive appreciation to be equitably distributed, the court’s next step is to determine how the value is allocated. Based on the circumstances of this case, we approve the methodology in Stevens, which addresses the disposition of nonmar-ital real property assets and provides the following method for determining how the appreciated value is to be allocated:

If a separate asset is unencumbered and no marital funds are used to finance its acquisition, improvement, or maintenance, no portion of its value should ordinarily be included in the marital estate, absent improvements effected by marital labor. If an asset is financed entirely by borrowed money which marital funds repay, the entire asset should be included in the marital estate. In general, in the absence of improvements, the portion of the appreciated value of a separate asset which should be treated as a mantal asset will be the same as the fraction calculated by dividing the indebtedness with which the asset was encumbered at the time of the marriage by the value of the asset at the time of the marriage. If, for example, one party brings to the marriage an asset in which he or she has an equity of fifty percent, the other half of which is financed by marital funds, half the appreciated value at the time of the petition for dissolution was filed, § 61.075(5)(a) 2, Fla. Stat. (1993), should be included as a marital asset. The value of this marital asset should be reduced, however, by the unpaid indebtedness marital funds were used to service.

Stevens, 651 So.2d at 1307-08 (emphasis added). Applying this language from Stevens to Kaaa, we note that the home was financed almost entirely by borrowed money that was repaid almost entirely by marital funds. Moreover, there appears to be ample evidence in the record of contributions made by Katherine Kaaa that affected the passive appreciation of the home’s value.

In sum, when a marital home constitutes nonmarital real property, but is encumbered by a mortgage that marital funds service, the value of the passive, market-driven appreciation of the property that accrues during the course of the marriage is a marital asset subject to equitable distribution under section 61.075(5)(a)(2), Florida Statutes (2007). For the foregoing reasons, we quash the Second District’s decision in Kaaa and approve the First District’s decision in Stevens. Consequently, we remand this case for proceedings consistent with this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, and PERRY, JJ., concur.

      . There is a conflict in the evidence regarding whether Katherine Kaaa contributed $500 toward the down payment, or whether Joseph Kaaa paid the entire $2000. While this issue may be relevant on remand to the trial court, it does not affect our analysis of the question of law before this Court.

      . In 2008, section 61.075, Florida Statutes, was amended to include a new subsection (5). What was section 61.075(5)(a)(2) in 2007 is now section 61.075(6)(a)(l)(b). The language, however, is substantively unchanged.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    John STELMACK, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-3354.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2010.
    Lawrence G. Walters of Walters Law Group, Altamonte Springs, Derek B. Brett of The Brett Law Firm, P.A., Orlando, and John H. Weston and G. Randall Garrou of Weston, Garrou & Mooney, Los Angeles, California, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
    Daniel R. Aaronson and James S. Benjamin, Fort Lauderdale, Gary S. Edinger, Gainesville, and Randall C. Marshall of American Civil Liberties Union Foundation of Florida, Inc., Miami, for Amicus Curiae ACLU of Florida, Inc.
   SILBERMAN, Judge.

John Stelmack was found to be in possession of several images showing the faces and heads of two girls, ages eleven and twelve, cut and pasted onto images of a nineteen-year-old woman lewdly exhibiting her genitals. A jury found him guilty of five violations of section 827.071(5), Florida Statutes (2007), which proscribes the knowing possession of a photograph or representation that, in whole or in part, includes “sexual conduct by a child.” We must decide if the trial court erred in denying Stelmack’s motion for judgment of acquittal in which he argued that the evidence was insufficient to establish guilt because the composite images do not violate section 827.071(5) as a matter of law. Because the statute requires sexual conduct by a child and the only sexual conduct in the images is that of an adult, we are compelled to conclude that the court erred in denying Stelmack’s motion.

Stelmack, who was sixty-two at the time of trial, was hired to serve as the principal of Scott Lake Elementary School in June 2006. In December 2007 school authorities received a complaint that Stelmack was inappropriately hugging some of the female students. School authorities conducted an investigation into the complaint and discovered the five photocopied images at issue in a briefcase in Stelmack’s office closet.

The images from Stelmack’s briefcase are disturbing. They are composite images which were crudely prepared by cutting and pasting a photocopy of the head of a minor onto a photocopy of an adult female. The adult in all five images is a topless nineteen-year-old model squatting with her skirt raised over her hips to lewdly expose her genitals. The child in the first four images is a Scott Lake Elementary School student, and the child in the fifth image is a student from a New York school where Stelmack was formerly employed. The first four images show various stages of morphing the child’s and the adult’s photos in an attempt to create a realistic composite. In the first of the images there is an obvious line between the child’s head and the adult’s body and an obvious difference in skin tones of the head and body. The second and third images are marked with white, crusted correction fluid where the child’s head meets the adult’s body. In the fourth image the line between head and body no longer exists and the photocopy appears to have been lightened to produce a uniform skin tone. The fifth image shows the head of the other child superimposed on the adult body with transparent tape. In this image, the outline of the child’s head is clearly visible.

At trial, the State presented evidence detailing the circumstances leading to the discovery of the images in Stelmack’s briefcase and the investigation that followed. Stelmack’s defense was twofold. First, he disavowed knowledge of the existence of the images and argued that they were planted in his briefcase by a disgruntled employee. Second, he argued that the images did not constitute child pornography as a matter of law because the genitals in the images were that of an adult. The question on review before this court is whether the trial court erred in denying Stelmack’s motion for judgment of acquittal on the latter basis.

This court reviews the denial of a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). “If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.” Id. Thus, in order to sustain Stelmack’s convictions, the evidence must support five counts of possession of child pornography under section 827.071(5).

Section 827.071(5) proscribes the possession of child pornography, in pertinent part, as follows:

It is unlawful for any person to knowingly possess a photograph, motion picture, exhibition, show, representation, or other presentation which, in whole or in part, he or she knows to include any sexual conduct by a child. The possession of each such photograph, motion picture, exhibition, show, representation, or presentation is a separate offense.

(Emphasis added.) “Sexual conduct” is defined as follows:

“Sexual conduct” means actual or simulated sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomachistic abuse; actual lewd exhibition of the genitals; actual physical contact with a person’s clothed or unclothed genitals, pubic area, buttocks, or, if such person is a female, breast, with the intent to arouse or gratify the sexual desire of either party; or any act or conduct which constitutes sexual battery or simulates that sexual battery is being or will be committed. A mother’s breastfeeding of her baby does not under any circumstance constitute “sexual conduct.”

§ 827.071(l)(g) (emphasis added).

The only applicable type of sexual conduct depicted by the images in this case would be “actual lewd exhibition of the genitals.” Reading the two provisions together, section 827.071(5) requires that the images in question include actual lewd exhibition of the genitals by a child. There is no dispute in this case that the genitals in the images are exhibited by an adult. Thus, possession of these images is not a violation of section 827.071(5).

At most, the images depict a simulated lewd exhibition of the genitals by a child. However, the legislature specifically excluded simulated lewd exhibition from the definition of sexual conduct in section 827.071(l)(g). Section 827.071(l)(g) uses the terms “actual or simulated” to describe “sexual intercourse, deviate sexual intercourse, sexual bestiality, masturbation, or sadomasochistic abuse” but does not use the term “simulated” to describe “lewd exhibition of the genitals.” Under the canon of statutory construction known as ex-pressio unius est exclusio alterius, the absence of this term may be considered an expression of legislative intent to exclude simulated lewd exhibition of the genitals from the crime of possession of child pornography under section 827.071(5). See Capers v. State, 678 So.2d 330, 332 (Fla.1996).

If the legislature had intended to proscribe the possession of composite images that simulate lewd and lascivious exhibition of the genitals, it could have included a provision doing so. In fact, child pornography has been defined in the federal statutes to specifically include composite images as follows:

“[C]hild pornography” means any visual depiction, including any photograph, film, video, picture, or computer or computer-generated image or picture, whether made or produced by electronic, mechanical, or other means, of sexually explicit conduct, where ... such visual depiction has been created, adapted, or modified to appear that an identifiable minor is engaging in sexually explicit conduct.

18 U.S.C. § 2256(8)(C) (2008) (emphasis added).

Furthermore, the legislative history of section 827.071 reveals that it was aimed at preventing the exploitation of children in sexual performances, and no children engaged in sexual performances to create the composite images in this case. Chapter 827 is entitled “Abuse of Children,” and the title of section 827.071 is “Sexual performance by a child; penalties.” When section 827.071 was created in 1983, the bill that led to its creation was summarized in a staff summary prepared for the joint legislative committee. The summary includes the following explanation of the intent of section 827.071:

The intent of this legislation is to facilitate the prosecution of persons who use or promote any sexual performance by a child, which is not necessarily obscene. A distinction is drawn between child abuse and pornography, with the focus on the child abuser. This legislation is directed at two types of people — those who use children in sexual performances and those who, being the parent or guardian of the child, “consent” to the child’s participation in such activities.

Fla. H.R. Comm, on Crim. Just., HB 148 (1983) Staff Analysis 2 (Apr. 14, 1988) (on file with comm.) (emphasis added).

We do not mean to suggest that the possession of composite images of real children that simulate lewd and lascivious exhibition of the children’s genitals should not be criminalized. However, there is no indication in either the plain language of section 827.071(5) or its legislative history that the legislature intended to do so. “ ‘[Statutes creating and defining crimes cannot be extended by construction or interpretation to punish an act, however wrongful, unless clearly within the intent and terms of the statute.’” Clement v. State, 895 So.2d 446, 448 (Fla. 2d DCA 2005) (alteration in original) (quoting Hutchinson v. State, 315 So.2d 546, 547 (Fla. 2d DCA 1975)). Thus, even if the statutory language were susceptible to different meanings, we would be compelled by the rule of lenity to construe it in Stelmack’s favor. See § 775.021(1), Fla. Stat. (2007); Clement, 895 So.2d at 448.

The State argues that the images are proscribed by the plain language of section 827.071(5) because they are photographs or representations “which ... in part ... include ... sexual conduct by a child.” (Emphasis added.) In support of this argument, the State relies on the case of United States v. Bach, 400 F.3d 622 (8th Cir.2005), in which the circuit court upheld a conviction based on the receipt of a similar type of composite photograph.

We do not agree that an application of section 827.071(5) can be based on a claim that the images in this case partially depict the lewd exhibition of the genitals of a child. We recognize that section 827.071(5) proscribes the knowing possession of a photograph or representation “which, in whole or in part, he or she knows to include any sexual conduct by a child.” However, when the sexual conduct at issue is the “actual lewd exhibition of the genitals” as defined in section 827.071(l)(g), at least some part of the image must in fact display a child who is actually lewdly exhibiting his or her genitals. In this case, no part of any of the images displays a child who is actually lewdly exhibiting her genitals. Moreover, the State’s reliance on Bach is misplaced because it relies on the federal statute, which, as we have already noted, specifically includes composite images in its definition of child pornography. See 18 U.S.C. § 2256(8)(C).

In conclusion, composite images must include actual lewd exhibition of the genitals “by a child” in order for their possession to be proscribed by section 827.071(5). Unseemly as the images in this case may be, their possession is not proscribed by section 827.071(5) because the only sexual conduct in the images is that of an adult. Thus, the trial court erred in denying Stel-mack’s motion for judgment of acquittal. Because there are no applicable lesser-included offenses, we reverse and remand with directions for the trial court to discharge Stelmack.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.

      . " ‘[T]he mention of one thing implies the exclusion of another.’ ” Capers v. State, 678 So.2d 330, 332 (Fla.1996) (quoting Thayer v. State, 335 So.2d 815, 817 (Fla.1976)).

      . We leave for another day a discussion of the constitutionality of such a provision.


author: THOMAS, J.

text:
    William Robert ELLIOTT, Appellant, v. Douglas ELLIOTT and Mary Ann Hooper, Appellees.
    No. 1D09-5768.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.
    Rehearing Denied March 18, 2011.

      Elizabeth K Russo of Russo Appellate Firm, P.A., Miami; Lanier Davidson, LLC, St. Augustine, for Appellant.
    Matthew C. Mitchell and Stephen C. Bullock of Brannon, Brown, Haley & Bullock, P.A., Lake City; Jack W. Shaw, Jr., Winter Park, for Appellees.
   THOMAS, J.

Appellant seeks reversal of a jury verdict arising out of a complaint filed by his siblings, Appellees, for negligent handling of a corpse, negligent infliction of emotional distress, and diminution of property value. The claims are based on Appellant’s dismembering of their mother’s corpse, burning it in a barrel, and scattering the remains on the family’s farm without disclosing the location of the remains. The jury found for the siblings on all claims, resulting in a total judgment award of $1.1 million dollars. We reverse the trial court’s order denying Appellant’s motion for directed verdict on the claim for negligent infliction of emotional distress, because Appellees failed to establish a physical impact or sufficient physical injuries resulting from Appellant’s actions. Appel-lees also failed to prove that they were involved in the events causing negligent injury, as they were not present when Appellant dismembered, cremated, and scattered his mother’s remains. We affirm the verdict for the diminution of property value and for negligent handling of a corpse.

Facts

Appellant and his mother, Martha Elliott, resided together on the family’s farm. Martha was a real estate agent and worked out of an office with Sharon Elliott, Appellee Douglas Elliott’s wife. When Martha did not show up for work on November 7, 2007, Sharon notified family members of her absence, who went to check on her. Appellant told them she left with an unknown man and would be back in a few days. Sharon determined the information was extraordinary, and she notified law enforcement and her husband Douglas, who was working 60 miles away and immediately left to assist in the search.

A search party converged on the farm, including cadaver canines, helicopters, and a dive team to search the nearby Suwan-nee River. Douglas and other family members testified they led law enforcement officers around the farm and pointed out locations where Martha’s body could have been hidden. Douglas was asked to use his personal tractor to dismantle a mulch pile covering a piece of bloody plastic. The family was included in daily updates and conferences held by the Suwan-nee County Sheriff. When Appellant drew a map for law enforcement revealing the location of Martha’s remains, Douglas interpreted the map and led officers to the field where Martha’s remains were eventually found.

Appellee Mary Ann Hooper lives in Melbourne, Florida, and could not travel to Suwannee County until November 9, 2007. She assisted in the search, but had to leave before Martha’s body was found. Douglas called her while she was driving back to Melbourne and told her the remains had been found.

Medical testimony revealed Mary Ann suffered from stress, insomnia, anxiety, diarrhea, loss of appetite, and hair loss following her mother’s death. One physician diagnosed Mary Ann with situational anxiety depression and noted she had a history of depression, anxiety, and chronic pain.

Douglas testified he had a “real, real hollow feeling” knowing Martha had not been buried according to her wishes and that it was a horrendous situation trying to keep the family together after Martha’s death, mainly because of the continuing legal proceedings. He began having headaches and developed diabetes and sleep apnea after the incident. No medical testimony was introduced describing his physical injuries.

During the trial and at the close of Appellees’ case, Appellant moved for a directed verdict. Appellant argued that Ap-pellees’ failed to identify a physical impact sufficient to prove negligent infliction of emotional distress. The trial court denied Appellant’s motion, finding enough evidence was presented for the jury to determine whether Appellees suffered a physical impact. The jury granted relief on all claims, and awarded Appellees $400,000 due to Appellant’s negligent handling of a corpse, $600,000 for negligent infliction of emotional distress, and $100,000 for diminution of property value. Appellant moved for a judgment notwithstanding the verdict, which was denied. Appellant moved for a new trial after the judgment was entered, which was also denied.

Appellant raises four issues on appeal, arguing: (1) the trial court abused its discretion by admitting in this civil proceeding photographic and testimonial evidence from the criminal investigation; (2) a directed verdict should have been granted concerning Appellees’ claim for negligent infliction of emotional distress because Ap-pellees failed to establish the necessary elements of that tort; (3) Appellant was entitled to summary judgment on the diminution of property claim; and (4) the trial court abused its discretion by refusing to continue this civil proceeding until Appellant’s criminal appeal has been concluded.

We affirm issues 1, 3 and 4 without comment. As to issue 2, we agree that Appellees failed to establish the necessary elements of a claim for negligent infliction of emotional distress.

Analysis: The Impact Rule and Its Application Here

The standard of review on appeal of a trial court’s order denying a directed verdict is de novo; thus we determine as a matter of law whether the trial court erred by allowing the claim for negligent infliction of emotional distress to be considered by the jury. Meruelo v. Mark Andrew of Palm Beaches, Ltd., 12 So.3d 247, 250 (Fla. 4th DCA 2009) (“A trial court should grant a motion for directed verdict when the evidence, viewed in the light most favorable to the non-moving party, shows that a jury could not reasonably differ about the existence of a material fact and the movant is entitled to judgment as a matter of law.”). Applying this standard, we hold that Appellees’ physical manifestations do not satisfy the supreme court’s stringent requirements for demonstrable physical injury or illness, where there is no physical impact flowing from the wrongdoer’s conduct.

Generally, in order to recover damages for emotional distress caused by the negligence of another in Florida, the plaintiff must show that the emotional distress flows from physical injuries sustained in an impact. See Fla. Dep't of Corr. v. Abril, 969 So.2d 201, 206 (Fla.2007) (quoting R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995)). The reasoning behind the impact rule has generally been that emotional harm may be difficult to prove, damages are not easily defined, and the cause of such an injury can be elusive. See Rowell v. Holt, 850 So.2d 474, 478 (Fla.2003). “‘[T]he underlying basis for the [impact] rule is that allowing recovery for injuries resulting from purely emotional distress would open the floodgates for fictitious or speculative claims.’” Gracey v. Eaker, 837 So.2d 348, 355 (Fla.2002) (alteration in original) (quoting R.J., 652 So.2d at 362). Thus, the impact rule has been applied as a limitation to assure the validity of claims for emotional and psychological -harm. Rowell, 850 So.2d at 478.

But the impact rule is not an inflexible command, and does yield to narrow exceptions “in which the foreseeability and gravity of the emotional injury involved, and lack of countervailing policy concerns, have surmounted the policy rationale un-dergirding application of the impact rule.” Id. Thus, as in Gracey and Holt, for example, where parallel policy considerations expressed in statutory protections outweighed the rationale of the impact rule’s requirements, the supreme court stated the rule will yield to exceptions and liability can be established without a physical impact.

In a seminal 1985 case involving the supreme court’s treatment of the rule, the court concluded that “the price of death or significant discernible physical injury, when caused by psychological trauma resulting from negligent injury imposed upon a close family member within the sensory perception of the physical injured person, is too great a harm to require direct physical contact before a cause of action exists.” Champion v. Gray, 478 So.2d 17, 18-19 (Fla.1985) (emphasis added). The court has emphasized that the physical impairment must accompany or occur within a short time after the emotional distress, but it receded from the requirement that the plaintiff contemporaneously witness the injury to another person in Zell v. Meek, 665 So.2d 1048, 1053-54 (Fla.1995). After receding from the time requirement, the Zell court reaffirmed the elements for negligent infliction of emotional distress:

(1) the plaintiff must suffer a physical injury; (2) the plaintiffs physical injury must be caused by the psychological trauma; (3) the plaintiff must be involved in some way in the event causing the negligent injury to another; and (4) the plaintiff must have close personal relationship to the directly injured person.

Id. at 1054 (emphasis added).

Put another way, the impact rule in Florida has evolved into a dichotomy: If the plaintiff suffers an impact, he or she is permitted recovery for the emotional distress flowing from the incident in which the impact occurred; if the plaintiff has not suffered an impact, the mental distress must be manifested by a discernable physical injury, the plaintiff must have been involved in the incident which involved a closely-related person, and the plaintiff must suffer the physical injury within a short time after the incident. See Willis v. Gami Golden Glades, LLC, 967 So.2d 846, 850 (Fla.2007) (quoting Zell, 665 So.2d at 1050 n. 1). Appellees proceeded below under the latter theory.

Beginning in Brown v. Cadillac Motor Car Division, 468 So.2d 903, 904 (Fla.1985), which was issued the same day as Champion, the Florida Supreme Court held that “such psychological trauma must cause a demonstrable physical injury such as death, paralysis, muscular impairment, or similar objectively discernible physical impairment.” The clearest example of psychological trauma resulting in physical injury occurred in Champion where the plaintiffs wife “was so overcome with shock and grief that she collapsed and died on the spot” upon arriving at the scene of her daughter’s death. 478 So.2d at 18. In Zell, the court approved the reversal of a summary judgment entered against a plaintiff who developed insomnia, depression, short-term memory loss, extreme fear of loud noises, a blockage in her esophagus, and fibromyalgia after witnessing her father being killed in an apartment bombing. 665 So.2d at 1049-50. Medical testimony in Zell linked the plaintiffs medical conditions to emotional distress. Id. at 1050.

In LeGrande v. Emmanuel, 889 So.2d 991, 995 (Fla. 3d DCA 2004), the Third District concluded that exacerbation of pre-existing diabetes and memory loss was “wholly insufficient” to succeed in a negligent infliction of emotional distress action. In Langbehn v. Public Health Trust of Miami-Dade County, 661 F.Supp.2d 1326, 1332-41 (S.D.Fla.2009), the federal court concluded that stomach pain, nausea, exacerbation of preexisting multiple sclerosis, nightmares, severe depression, and post-traumatic stress disorder “though somewhat thin, would be sufficient to satisfy the impact rule at this stage of the litigation.” But the court’s analysis was dicta, and we decline to follow the court’s description of these symptoms as adequate to satisfy the impact rule under Florida law. See, e.g., Gonzalez-Jimenez de Ruiz v. U.S., 231 F.Supp.2d 1187, 1201-02 (M.D.Fla.2002) (concluding that aggravation of pre-exist-ing conditions, such as diabetes and asthma, is insufficient to satisfy impact rule), aff'd, 378 F.3d 1229, 1231 (11th Cir.2004).

Here, the ailments complained of are headaches, diabetes, sleep apnea, stress, insomnia, anxiety, loss of appetite, hair loss, and bowel trouble, which are not the sort of the discernable physical injuries discussed in Champion and Zell. In addition, medical testimony discussing Mary Ann’s injuries was equivocal, and no evidence was introduced linking Douglas’s ailments to Appellant’s acts. Cf. Zell, 665 So.2d at 1050 (noting plaintiff introduced medical testimony linking medical conditions to emotional distress), with Champion, 478 So.2d at 20 (holding plaintiff established entitlement to relief without addressing whether plaintiffs death was medically attributable to emotional shock).

We also conclude that Appellees failed to satisfy the third element of negligent infliction of emotional distress because Ap-pellees were not involved in the dismemberment of their mother’s corpse. See Zell, 665 So.2d at 1054. Neither Douglas nor Mary Ann was present when Appellant dismembered, cremated and scattered Martha’s remains. Douglas testified he was on the road the day Martha went missing and did not arrive at the farm until that afternoon; Mary Ann did not arrive until two days later. None of the cases discussing negligent infliction of emotional distress contemplates such a large temporal gap between the incident and the plaintiffs arrival at the scene. See Champion, 478 So.2d at 18 (plaintiff “came immediately to the accident scene”); Zell, 665 So.2d at 1049 (plaintiff directly involved in explosion that killed her father).

We likewise reject Appellees’ argument that the temporal gap was irrelevant because the negligent accident in this case not only included the dismemberment and cremation of them mother, but also included Appellant’s willful omission in failing to disclose the location of Martha’s remains during the entirety of the search. Although timing of the accident and perception are only two factors to be considered in a negligent infliction of emotional distress claim, it is important here because allowing recovery could create an extension of the law, which we are not empowered to do, absent more definitive direction from the supreme court. See Gonzalez v. Metro. Dade County Pub. Health Trust, 651 So.2d 673, 675-76 (Fla.1995) (declining to adopt section 868 of the Restatement (Second) of Torts, which would remove the physical impact requirement and eliminate the physical injury currently required under Florida law for claims arising from negligent mishandling of corpse).

While we do not dimmish Appellees’ anguish and suffering in this distressing case, we hold that under controlling authority, we are not at liberty to affirm the judgment finding for Appellees on negligent infliction of emotional distress based on the evidence admitted at trial.

Accordingly, we reverse and remand for the trial court to vacate the jury’s verdict awarding damages regarding the claim for negligent infliction of emotional distress, and to enter a directed verdict on that issue in favor of Appellant. We affirm all other aspects of the verdict rendered in Appellees’ favor.

AFFIRMED in part, REVERSED in part, and REMANDED with instructions consistent with this opinion.

KAHN and VAN NORTWTCK, JJ„ concur.


author: PER CURIAM.

text:
    CRIMINAL SPECIALIST INVESTIGATIONS, INC., Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4650.
    District Court of Appeal of Florida, First District.
    Feb. 7, 2011.

      Rick A. Sichta of Tassone, Dreicer & Sichta, LLC, Jacksonville, for Petitioner; Terence M. Lenamon of Brooke Terpen-ing, Miami, for Florida Capital Resource Center, Inc., Amicus Curiae.
    Stephen M. Presnell, General Counsel, and Christian D. Lake, Assistant General Counsel, Tallahassee, for The Justice Administrative Commission.
   PER CURIAM.

Criminal Specialist Investigations, Inc., Petitioner, seeks a writ of certiorari quashing the trial court’s order denying a motion for additional mitigation coordinator fees in a capital case. Petitioner argues that the trial court failed to undertake the appropriate consideration of the reasonableness and necessity of the costs at issue with respect to this particular case. We agree. Accordingly, we grant the petition, quash the order under review, and remand this case for further proceedings.

The trial court appointed Rosalie Bolin as the mitigation coordinator in the case of Tajuane Dubose, who was charged with first-degree murder and shooting or throwing deadly missiles. Dubose was eligible for the death penalty, and his private court-appointed counsel hired Bolin to assist in the preparation for the penalty phase of his case, which the trial judge found was one of the most unusual and extraordinary cases he had presided over. Over the course of the case, the trial court approved several motions for mitigation coordinator fees. After the penalty phase was complete, and Dubose had been sentenced to life imprisonment, defense counsel filed an Amended Fourth and Final Ex-Parte Motion for Authorization to Incur Additional Mitigation Coordinator Fees. In the amended motion, defense counsel opined that the favorable verdict of life imprisonment was due largely to Bo-lin’s work on the case. He described Bo-lin’s role as “instrumental” and provided some detail about her work. Additionally, an itemized bill was attached to the motion, and counsel alleged that the Justice Administrative Commission (“JAC”) had no objection to the payment of the fees requested.

At a hearing where the motion was discussed, the trial judge opined that Florida law did not recognize any such position as that of a mitigation coordinator. The judge also opined that Bolin had already been paid too much and that the overpayment of mitigation coordinators was becoming a trend in capital cases. The judge stated that, although he had no problem with “what [Bolin] did in this case,” he believed that a general investigator or paralegal could have accomplished the same results for much less money. The JAC’s counsel informed the court that it would not oppose the motion for additional mitigation coordinator fees if the court found those fees to be reasonable and necessary.

Despite the trial judge’s announcement of his general opinion that mitigation coordinator fees were too high and that the work of a mitigation coordinator is no different from the work of general investigators, the judge advised defense counsel that he would consider additional information after the hearing. The judge directed defense counsel to supply a log providing Bolin’s hours and explaining what she did, stating that he would “rethink the issue” if defense counsel convinced him that Bolin’s work justified the fees she was requesting. Defense counsel provided an appendix containing an itemized bill, letters from attorneys who vouched for the quality of Bolin’s work and the importance of mitigation coordinators in general, a letter from Du-bose’s mother expressing her perspective of the impact Bolin had on Dubose’s case, and legal publications describing the work of mitigation coordinators, also known as mitigation specialists. The JAC raised no objection to the consideration of these documents. After receiving this additional information, the court denied the motion without explaining its reasoning.

Under Florida law, private court-appointed attorneys are entitled to reimbursement from the state revenue of “reasonable and necessary expenses” in accordance with section 29.007(6), Florida Statutes (2009). § 27.5304(1), Fla. Stat. (2009). Such expenses include “[r]easonable pretrial consultation fees and costs.” § 29.007(6). Although the JAC is the entity that provides compensation for such fees and costs, the trial court has the “primary authority and responsibility for determining the reasonableness of all billings for attorney’s fees, costs, and related expenses, subject to statutory limitations.” § 27.5304(1), (3).

When a private court-appointed attorney incurs investigative costs without prior authorization from the court, the attorney “run[s] the risk of having the subsequent request for reimbursement denied if the court finds that the costs incurred were not reasonable and necessary to his defense.” Carrasquillo v. State, 502 So.2d 505, 506 (Fla. 1st DCA 1987). However, it is improper for a court to deny a request for reimbursement of investigative costs without making a finding regarding the reasonableness and necessity of the costs incurred, at least where it appears from the record that this issue was not “adequately explored.” See id. The finding of “reasonableness and necessity” must be made with respect to “the particular circumstances of th[e] case” for which the costs were incurred. See id. at 507; accord McMann v. Bd. of County Comm’rs., 707 So.2d 871 (Fla. 4th DCA 1998) (granting a petition for writ of certiorari where the trial court cut approximately $8,000 from the bill for investigative costs based on its “inherent discretionary authority” rather than specific concerns about the items listed in the bills). Although no specific finding is required, it must appear from the record that the trial court made the appropriate consideration with respect to the evidence presented. McMann, 707 So.2d at 872.

Based on the trial court’s comments in this case and the lack of opposition to the motion by the JAC, it appears that the trial court denied defense counsel’s motion based on its general concern that there is no position under Florida law known as a “mitigation coordinator” and that the fee she requested was too high. However, relevant legal authorities establish that “mitigation coordinator” or “mitigation specialist” is the title of a legitimate job related to the defense of criminal defendants who are eligible for the death penalty. The United States Supreme Court has determined that the ABA standards are “guides to determining what is reasonable” in terms of an attorney’s performance. Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). The ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases (rev. ed. 2003) (“ABA Guidelines”) suggest that the “defense team” in a capital case include “at least one mitigation specialist and one fact investigator.” § 10.4(C)(3)(a), ABA Guidelines; see also § 4.1(A)(1). The commentary to section 4.1 of the ABA Guidelines explains the role of a mitigation specialist, calling this person “an indispensable member of the defense team throughout all capital proceedings” and stating that “[mjitigation specialists possess clinical and information-gathering skills and training that most lawyers simply do not have.” Additionally, the use of a mitigation specialist or a mitigation coordinator is not unusual in Florida. See, e.g., Turner v. State, 37 So.3d 212, 219 (Fla.2010) (noting that a mitigation specialist testified in the penalty phase of a capital case); Twilegar v. State, 42 So.3d 177, 203 (Fla.2010) (noting the use of a mitigation specialist); Deparvine v. State, 995 So.2d 351, 360 (Fla.2008) (noting a mitigation specialist’s testimony). In fact, the common use of a mitigation coordinator was acknowledged by the trial court when it opined that the requests for and approval of their fees had gone too far as a general rule.

Based on the apparent widespread use of mitigation specialists or coordinators and the recommendation of the ABA Guidelines that capital defense attorneys consult them, the trial court was incorrect in its suggestion that there was no such position recognized under applicable law. The parties have conflicting views of whether a mitigation coordinator or specialist is simply a type of investigator or something else. This dispute is irrelevant to the issue at hand because trial courts are to consider the reasonableness of investigative costs based on the specific evidence adduced in support of the costs in a particular case. The record in the instant case does not reflect that the trial court gave case-specific consideration to the reasonableness and necessity of the costs the defense incurred in hiring Bolin. Because such consideration is required by Florida law, the trial court’s handling of the motion at issue was a departure from the essential requirements of the law. See Carrasquillo, 502 So.2d at 506; McMann, 707 So.2d at 872. Consequently, we grant the petition, quash the order under review, and remand for further proceedings consistent with this opinion.

PETITION GRANTED.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


author: LaROSE, Judge:

text:
    Eugene Gregory WALTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1935.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Eugene Gregory Walton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appel-lee.

      . Judge Davis has been substituted for Senior Judge Carolyn K. Fulmer, who was on the original Walton panel.

   LaROSE, Judge:

In January 2005, Eugene Gregory Walton was convicted and sentenced for burglary of a dwelling with assault and false imprisonment. We affirmed his convictions and sentences on direct appeal. Walton v. State, 928 So.2d 350 (Fla. 2d DCA 2006) (table decision). Mr. Walton now appeals the denial of his August 9, 2006, amended postconviction motion. See Fla. R. Crim. P. 3.850. He raised twenty-four claims. By order dated June 11, 2007, the postconviction court allowed Mr. Walton to amend claim one. It ordered a State response to claims ten, twelve, thirteen, and twenty-four. In the same order, the postconviction court denied the remaining claims as refuted by the record, procedurally barred, or either facially insufficient or eonclusory. After receiving Mr. Walton’s amended claim one and the State’s response, the postconviction court, by order dated September 11, 2007, ordered an evidentiary hearing on claims one and ten. It denied claims twelve and thirteen as refuted by the record and denied claim twenty-four as facially insufficient. By final order dated March 20, 2008, the postconviction court denied claims one and ten after conducting an evidentiary hearing.

We affirm, without further discussion, the denial of claims one and ten, the summary denial of claims four and eleven through seventeen as refuted by the record, and the summary denial of claims eighteen through twenty-three as procedurally barred.

We also affirm the summary denial of claims two, three, five, six, seven, eight, nine, and twenty-four as facially insufficient or conclusory. In the past, we may have been inclined to reverse and remand for the postconviction claimant to amend facially insufficient or conclusory claims. See Spera v. State, 971 So.2d 754, 761-62 (Fla.2007); Jimenez v. State, 993 So.2d 553, 556 (Fla. 2d DCA 2008) (applying Spera to claims that allege merely conclusory allegations as well as to claims that are facially insufficient). However, on the record before us, Mr. Walton is entitled to no such opportunity.

Shortly after his direct appeal failed, Mr. Walton filed his amended rule 3.850 motion. In July 2007, he amended claim one. Spera issued in November 2007. Until the postconviction court’s final order in March 2008, Mr. Walton had several months to seek leave to amend the facially insufficient or conclusory claims. He did not do so. Nor did he raise any issue about those claims in his brief. He focused, instead, on claims that were denied as procedurally barred or refuted by the record. We see no reason to extend Spera relief to a postconviction claimant who fails to properly raise the issue with us. See Watson v. State, 975 So.2d 572 (Fla. 1st DCA) (holding that when a defendant has appealed from a summary denial of a claim but fails to address Spera in his brief, appellate court need not consider the matter because the issue is waived), cause dismissed, 987 So.2d 1211 (Fla.2008) (table decision); see also Williams v. State, 24 So.3d 1252 (Fla. 1st DCA 2009).

Although we agree with Watson’s result, we do not accept its entire reasoning. Watson relies principally on death penalty postconviction cases where an attorney represented the petitioners and waived certain claims. Mr. Walton is pro se. But we believe that a pro se postcon-viction claimant can, by failing to raise such issues in his brief, waive a Spera claim. See Watson, 975 So.2d at 574-75 (Wolf, J., concurring). Other courts have reached the same result. See Ward v. State, 19 So.3d 1060, 1061 (Fla. 5th DCA 2009); cf. Hammond v. State, 34 So.3d 58 (Fla. 4th DCA 2010); Austin v. State, 968 So.2d 1049 (Fla. 5th DCA 2007); see also Prince v. State, 40 So.3d 11, 13 (Fla. 4th DCA 2010) (reiterating that a pro se appellant who presents no argument as to why a trial court’s ruling is incorrect on an issue has abandoned the issue).

Affirmed.

DAVIS, J., Concurs.

KELLY, J., Concurs in result only.

      . The postconviction court did not have the benefit of Spera, which issued after its first two orders. However, Spera applies to cases in which an appeal is pending once it issued. Rodriguez v. State, 993 So.2d 152, 153 (Fla. 1st DCA 2008).

      . The State filed an answer brief but did not argue that Mr. Walton had waived review of his other claims. See Bilotti v. State, 27 So.3d 798 (Fla. 2d DCA 2010) (finding a waiver of claims where (1) counsel's appellate brief asserted no error as to the denial of some rule 3.850 grounds, (2) the State, in its answer brief, argued that any error in the postconviction court’s rulings on those grounds was waived because it was not challenged on appeal, and (3) no reply brief or request to file a supplemental brief was filed to address the State’s argument).


text:
    Billy Tom KALOGERAS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4194.
    District Court of Appeal of Florida, Fifth District.
    Feb. 11, 2011.
    Billy T. Kalogeras, Crawfordville, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Billy Tom Kalogeras appeals the denial of his Florida Rule of Criminal Procedure 3.800(a) motion alleging that the trial court improperly sentenced him on his conviction for false imprisonment as a Prison Releas-ee Reoffender (PRR) under section 775.082(9)(a)l, Florida Statutes (2006). Because the offense of false imprisonment is not subject to PRR sentencing, we reverse and remand for the trial court to strike the PRR designation.

Originally charged with sexual battery by threats of or use of force or violence, kidnapping and carjacking without a firearm, Appellant was found guilty of the lesser crimes of battery, false imprisonment, and theft. The trial court sentenced Appellant on the false imprisonment conviction to five years’ incarceration as a PRR, pursuant to section 775.082(9)(a)l.

The PRR designation applies to defendants who have served a prison sentence, and within three years of their release date, commit a qualifying offense. Defendants so designated face mandatory minimum sentences. The PRR statute applies to a defendant who commits or attempts to commit any of the enumerated felonies in the statute, or any felony involving “the use or threat of physical force or violence against an individual.” § 775.082(9)(a)l.o. A person sentenced as a PRR is not entitled to any form of early release and must serve one hundred percent of the court-imposed sentence. § 775.082(9)(b).

Appellant argues that the offense of false imprisonment is not subject to PRR sentencing because it is neither a qualifying nor an enumerated offense, relying on State v. Hearns, 961 So.2d 211 (Fla.2007), and its progeny. The issue in Hearns was whether battery on a law enforcement officer qualified as a “forcible felony,” as defined in section 776.08, Florida Statutes (2000), for purposes of the violent career criminal (VCC) statute, section 775.084(l)(d), Florida Statutes. Just as false imprisonment is not one of the enumerated felonies under section 775.082(9)(a)l., battery of a law enforcement officer is not specifically enumerated as a “forcible felony” in section 776.08. Analyzing the catchall provision that defines a “forcible felony” as “any other felony which involves the use or threat of physical force or violence against any individual,” the supreme court held that “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.” Hearns, 961 So.2d at 212. Because battery on a law enforcement officer could be committed by a mere touching that would not necessarily involve “the use or threat of physical force or violence,” within the meaning of the statute, the Hearns court concluded that battery of a law enforcement officer was not a forcible felony for purposes of imposing a VCC designation.

Although addressing the VCC statute, Hearns has been applied to the PRR statute because the language in the catchall provision is identical. See Walker v. State, 965 So.2d 1281 (Fla. 2d DCA 2007). It has also been applied retroactively. See Acosta v. State, 982 So.2d 87 (Fla. 3d DCA 2008). The Second, Third and Fourth Districts, applying Hearns, have concluded that false imprisonment is not subject to PRR sentencing. See Lamb v. State, 32 So.3d 117 (Fla. 2d DCA 2009); Davis v. State, 20 So.3d 1024 (Fla. 4th DCA 2009); Mosquera v. State, 16 So.3d 255 (Fla. 4th DCA 2009); and Sinclair v. State, 973 So.2d 665 (Fla. 3d DCA 2008).

The State unconvincingly attempts to distinguish Lamb (and to some extent, Hearns), by arguing that Appellant’s false imprisonment conviction qualified for PRR sentencing under the “catch-all” provision because he was found guilty of both battery and false imprisonment. In support, the State relies on Harris v. State, 5 So.3d 750 (Fla. 1st DCA 2009), and Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009).

In Harris, the First District held that the offense of resisting an officer with violence qualifies for PRR sentencing because the element of offering to do violence necessarily involved the use or threat of physical force or violence. In reaching this conclusion, the court distinguished Hearns and the offense of battery on a law enforcement officer, which might involve merely nonviolent, albeit unwanted, touching, and not necessarily the use of threat of physical force or violence.

Likewise, in Shaw v. State, 26 So.3d 51 (Fla. 5th DCA 2009), this court held that the offense of burglary of an occupied conveyance with an assault qualifies for an enhanced PRR sentence under the “catchall” provision of the statute because, by definition, an “assault” involves an intentional, unlawful threat by word or act to do violence. In rendering this decision, this court recognized “the irony that a defendant who commits a battery during the commission of a felony does not qualify as a PRR under the Statute, but a defendant who commits an assault does.” Id. at 53.

Harris and Shaw are distinguishable because the elements of the offenses in those cases necessarily involved an intentional, unlawful threat by word or act to do violence to another. In contrast, false imprisonment does not. We reject the State’s suggestion that Appellant’s convictions for false imprisonment and battery should be merged so he qualifies for PRR sentencing. We agree with the reasoning of the Second, Third and Fourth Districts, and conclude the offense of false imprisonment is not subject to PRR sentencing under the “catchall” provision of the statute.

Accordingly, we reverse and remand with instructions to strike Appellant’s designation as a PRR on his false imprisonment conviction.

REVERSED and REMANDED.

SAWAYA, PALMER and COHEN, JJ., concur.

      . This subsection is commonly referred to as the "catchall” provision.

      . The State’s response does not even mention Davis, Mosquera or Sinclair, cases directly on point, from other districts.

      . Conflict certified in State v. Hackley, - So.3d - (Fla. 1st DCA 2010).


author: KAHN, J.

text:
    Elijah JAMES, III, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5558.
    District Court of Appeal of Florida, First District.
    Feb. 22, 2011.

      Nancy A. Daniels, Public Defender; and Maria Ines Súber and M.J. Lord, Assistant Public Defenders, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General; and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   KAHN, J.

The petitioner, Elijah James, III, is under indictment for the capital crime of first-degree murder in Leon County, Florida. James finds himself presently incarcerated in Thomasville, Georgia. By petition for writ of certiorari, James seeks to overturn an order of the Leon County Circuit Court denying appointment of the Public Defender in Florida. We grant the writ and quash the order of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On August 18, 2010, a Florida grand jury indicted petitioner for the murder and robbery of Danielle Brown in Leon County, Florida. At the time the grand jury returned the indictment, petitioner was held by Georgia authorities in Thomasville, charged with arson of an automobile, perhaps Ms. Brown’s.

While in custody of the Georgia authorities, but after the indictment had been returned by the Leon County grand jury, the petitioner submitted an application for determination of criminal indigent status and appointment of counsel in Florida. The Leon County State Attorney’s office took the position that (quoting from the State’s response to the motion for appointment of counsel):

The State of Florida is currently not interacting with Elijah James in any way. No interviews are being attempted, or will be attempted, without him being afforded the right of counsel. Furthermore, he is not being required to participate in any form of activity or lineup nor are any “critical pretrial proceedings” occurring at the time....
The entire prosecution of Elijah James is being held in abeyance until his person can be secured in the State of Florida.

At a hearing on the motion, the circuit judge found that, although a capias had been issued to secure James’ arrest, the petitioner had not been served with the capias. The court went on to reason that, because the capias had not been served, the Leon County Circuit Court did not have “personal jurisdiction to proceed.” The court considered, but rejected, the view that (assuming jurisdiction somehow were an issue) the petitioner would have waived such by coming into court and seeking appointment of counsel. The court went on to conclude that, because the petitioner remained incarcerated in Georgia, he did not qualify for appointment of counsel in Florida, despite the admitted indigent status and the pendency of the indictment.

ANALYSIS

This case turns on whether formal criminal proceedings have been instituted against the petitioner in Florida. Although the State, in its response before this court, persists in discussing the question of personal jurisdiction, we dispense with any further comment on that point and limit our observations to the constitutional question of whether the petitioner’s rights under the Sixth Amendment’s guarantee of assistance of counsel have attached. Clearly they have.

Under the familiar standard, cer-tiorari will not lie unless the applicant for the writ can demonstrate a departure from the essential requirements of law, causing a material injury, and that no adequate remedy exists on plenary appeal. See Marlin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); Combs v. State, 436 So.2d 93, 95-96 (Fla.1983); AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010). Here, because the right to counsel in a criminal proceeding is at stake, we harbor no doubt that the petition surmounts both prongs of the certiorari standard. See Gideon v. Wainwright, 372 U.S. 335, 342-43, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Meeks v. State, 841 So.2d 648, 648 (Fla. 2d DCA 2003) (“A criminal defendant facing incarceration has a right to counsel at every critical stage of the proceedings against him.”); Wofford v. State, 819 So.2d 891, 892 (Fla. 1st DCA 2002) (“[Djenial of the Sixth Amendment right to counsel is per se reversible error.”).

For purposes of the Sixth Amendment right to counsel, a criminal indictment, returned by a grand jury, marks the beginning of a formal criminal proceeding and, accordingly, is a critical and crucial stage in the prosecution for purposes of the petitioner’s constitutional rights. See Rothgery v. Gillespie County, 554 U.S. 191, 198, 128 S.Ct. 2578, 171 L.Ed.2d 366 (2008); Kirby v. Illinois, 406 U.S. 682, 689, 92 S.Ct. 1877, 32 L.Ed.2d 411 (1972); Traylor v. State, 596 So.2d 957, 968 (Fla.1992). See also § 27.51(l)(a), Fla. Stat. (2009) (“Duties of Public Defender.—(1) The public defender shall represent, without additional compensation, any person determined to be indigent under s. 27.52 and: (a) Under arrest for, or charged with, a felony”); Fla. R. Crim. P. 3.111(a) (“When Counsel Provided. A person entitled to appointment of counsel as provided herein shall have counsel appointed when the person is formally charged with an offense, or as soon as feasible after custodial restraint, or at the first appearance before a committing judge, whichever occurs earliest.”). The United States Supreme Court stated in Kirby:

The initiation of judicial criminal proceedings is far from a mere formalism. It is the starting point of our whole system of adversary criminal justice. For it is only then that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.

406 U.S. at 689, 92 S.Ct. 1877; accord United States v. Ash, 413 U.S. 300, 309, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973). The Florida Supreme Court “has long recognized ... this right of impoverished defendants to court-appointed counsel commencing at the point in time when they are charged, either formally or informally, with a criminal act.” Traylor, 596 So.2d at 969.

The State’s position, amounting to an assertion that it will take a hands-off approach to this capital murder case at present, and apparently, until such time as the petitioner arrives in Florida, is simply untenable. The indictment certainly commenced an active prosecution of James for the murder. Given the capital nature of the crime, James faces the prospect of the death penalty. For every day that James is denied representation, potential defense counsel loses the opportunity to investigate the case, to seek discovery under the Rules of Criminal Procedure, to interview James and potential witnesses, to guard against unlawful interrogation, and to prepare a meaningful defense, if such is available. The State’s assurance that it will not proceed with the preparation of its case against Mr. James notwithstanding, the petitioner is clearly entitled to representation from at least the date of the indictment, and the trial court departed from the essential requirements of law by not allowing such representation.

We GRANT the writ of certiorari, QUASH the order of the circuit court, and direct the lower tribunal to enter an order granting the petitioner’s motion for appointment of counsel in Florida.

PADOVANO and CLARK, JJ„ concur.


author: KHOUZAM, Judge. ALTENBERND, Judge,

text:
    STATE of Florida, Appellant, v. Benny ALBRITTON, Appellee.
    No. 2D09-5091.
    District Court of Appeal of Florida, Second District.
    March 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellee.
   KHOUZAM, Judge.

The State appeals an order granting Benny Albritton’s motion to suppress the controlled substance records obtained by law enforcement from several pharmacies. Albritton was charged with trafficking in illegal drugs and eleven counts of obtaining a controlled substance from a physician by withholding information. The trial court found that Albritton’s pharmacy records were protected by section 395.3025(4)(d), Florida Statutes (2007 & 2008).

In State v. Tamulonis, 39 So.3d 524, 527 (Fla. 2d DCA 2010), cert. denied, 52 So.3d 662 (Fla. Jan.3, 2011), however, this court determined that section 395.3025 did not apply to pharmacies. Instead, section 893.07(4), Florida Statutes (2007 & 2008), which requires pharmacists to maintain controlled substance records for at least two years “for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances,” authorizes law enforcement to obtain controlled substance records from pharmacies without a warrant or subpoena. Tamulonis, 39 So.3d at 527-28; see State v. Carter, 23 So.3d 798, 799 (Fla. 1st DCA 2009). We are mindful of the dissent’s concerns regarding an individual’s privacy interest in his or her prescription records for controlled substances; however, we determined in Tamulonis that section 893.07(4) does not violate Florida’s constitutional right of privacy because the statute is narrowly tailored to achieve the State’s compelling interest in regulating controlled substances. 39 So.3d at 528; see State v. Yutzy, 43 So.3d 910 (Fla. 2d DCA 2010).

Therefore, as in Tamulonis, 39 So.3d at 528, we reverse the order granting Albrit-ton’s motion to suppress and remand for further proceedings.

Reversed and remanded.

VILLANTI, J., Concurs.

ALTENBERND, J., Concurs in part and dissents in part with opinion.

ALTENBERND, Judge,

Concurring in part and dissenting in part.

I recognize that the court’s opinion in this case is in full accord with a significant body of case law from more than one district. But I also recognize that the citizens of this state created an express constitutional right of privacy in 1980. See art. I, § 23, Fla. Const. Although prescription drug abuse is a serious and deadly problem requiring a strong response from the State, I am not convinced that it is constitutional to interpret section 893.07(4), Florida Statutes (2007 & 2008), to authorize a deputy sheriff, without any reasonable suspicion, to send a “blast-fax” to every pharmacy in a large region of Florida compelling information about prescriptions on file for a randomly selected citizen. I agree that the trial court’s basis for granting this motion was incorrect. On the other hand, the ruling might be correct based on a proper analysis of section 893.07(4). During the proceedings on remand, I conclude that the trial court has authority to conduct an additional hearing to establish whether Mr. Albritton had a privacy interest in his prescriptions that were on file with a pharmacy and, if so, whether section 893.07(4), as interpreted by the State, serves “a compelling state interest and accomplishes its goal through the use of the least intrusive means.” See Winfield v. Div. of Pari-Mutuel Wagering, 477 So.2d 544, 547 (Fla.1985).

I also recognize that a panel of this court has issued an opinion concluding that section 893.07(4) is constitutional under the Winfield analysis. See State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), cert. denied, 52 So.3d 662 (Fla. Jan.3, 2011). However, that ruling was made in a case that is indistinguishable from State v. Bean, 36 So.3d 116 (Fla. 2d DCA 2010), in which this court expressly declined to accept or reject the reasoning in State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009), and resolved the case on a narrow issue so that the constitutional issue could receive full consideration in the trial court. It is not clear to me why the panel in Tamulon-is did not follow this court’s approach in Bean. Whether this statute is the “least intrusive means” to enforce drug laws would appear to be an issue with an evi-dentiary component and this court has yet to receive an appeal in which the parties have seriously litigated the constitutionality of section 893.07(4) in the trial court. Accordingly, I dissent to the majority’s reliance on the discussion in Tamulonis.

I.

On April 2, 2009, the Hillsborough County Sheriffs Office received an anonymous telephone call to the “Crime Stoppers” telephone number, claiming that a man named “Benny Albritton” was “doctor shopping.” A deputy checked the records of the Department of Highway Safety and Motor Vehicles and determined that a man named “Benny Ray Albritton” existed in the State of Florida and had a driver’s license. Without any further investigation and without any subpoena or other judicial authorization, the deputy sent an automated message by facsimile machine, a so-called “blast-fax,” that “blanketed” pharmacies in Hillsborough County and unspecified surrounding counties. In the fax, the deputy compelled the pharmacies to provide a list of all prescriptions filled by “Benny Ray Albritton” at that pharmacy. There is no explanation in the record of whether the deputy required the pharmacies to provide information on only controlled substances or on all prescriptions on file for Mr. Albritton. The deputy, who received numerous responses to his directive, explained that the pharmacies provided information on the type and quantity of drugs prescribed and purchased, as well as the name and location of the pharmacy.

The deputy then went to the pharmacies without a subpoena and obtained additional records including “another list of the actual prescriptions that were given to Mr. Albritton.” Thereafter, the deputy went to the offices of two doctors and obtained “narcotic agreements” from the doctors without a subpoena. These documents are not in the record, but apparently they are agreements that Mr. Albritton signed and that the doctors maintain in his medical records. In the agreements, he agrees not to obtain another similar prescription without first obtaining the permission of the doctor. It is unclear from our record whether the pharmacies disclosed the identity of Mr. Albritton’s doctors in their initial responses to the “blast-fax” or when the deputy interviewed them later. Following this investigation, the State filed charges against Mr. Albritton and sought to subpoena the records that it had already received during the police investigation. The trial court granted the motion to suppress and concluded that the items in the subpoena were the fruit of the poisonous tree.

II.

As the majority opinion reflects, in this case and in many other similar cases pending in the trial courts, the primary argument has been that the pharmacy records are protected by section 395.3025(4)(d), Florida Statutes (2007 & 2008). I fully agree that this statute provides no protection for Mr. Albritton’s records. See, e.g., Bean, 36 So.3d at 118. Because the trial courts have been resolving these cases based on this statutory ground, they have properly avoided any extensive hearing on the alternative argument that section 893.07(4) violates either the Fourth Amendment or the constitutional right of privacy contained in Article I, Section 23, of the Florida Constitution. Although the panel in Tamulonis reached and discussed the constitutional issue, that case was capable of resolution in this court on a statutory ground without reaching the constitutional issue. Given that the record in Tamulonis contains no evidence on the issue of least restrictive means, I believe the trial court in this case should address this argument on remand because Mr. Al-britton raised this issue in his motion and has not yet received a hearing on it.

Section 893.07 states in its entirety:

(1) Every person who engages in the manufacture, compounding, mixing, cultivating, growing, or by any other process producing or preparing, or in the dispensing, importation, or, as a wholesaler, distribution, of controlled substances shall:
(a) On January 1, 1974, or as soon thereafter as any person first engages in such activity, and every second year thereafter, make a complete and accurate record of all stocks of controlled substances on hand. The inventory may be prepared on the regular physical inventory date which is nearest to, and does not vary by more than 6 months from, the biennial date that would otherwise apply. As additional substances are designated for control under this chapter, they shall be inventoried as provided for in this subsection.
(b) On and after January 1, 1974, maintain, on a current basis, a complete and accurate record of each substance manufactured, received, sold, delivered, or otherwise disposed of by him or her, except that this subsection shall not require the maintenance of a perpetual inventory.
Compliance with the provisions of federal law pertaining to the keeping of records of controlled substances shall be deemed a compliance with the requirements of this subsection.
(2) The record of controlled substances received shall in every case show:
(a) The date of receipt.
(b) The name and address of the person from whom received.
(c) The kind and quantity of controlled substances received.
(3) The record of all controlled substances sold, administered, dispensed, or otherwise disposed of shall show:
(a) The date of selling, administering, or dispensing.
(b) The correct name and address of the person to whom or for whose use, or the owner and species of animal for which, sold, administered, or dispensed.
(c) The kind and quantity of controlled substances sold, administered, or dispensed.
(4) Every inventory or record required by this chapter, including prescription records, shall be maintained:
(a) Separately from all other records of the registrant, or
(b) Alternatively, in the case of Schedule III, IV, or V controlled substances, in such form that information required by this chapter is readily retrievable from the ordinary business records of the registrant.
In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.
(5)Each person shall maintain a record which shall contain a detailed list of controlled substances lost, destroyed, or stolen, if any; the kind and quantity of such controlled substances; and the date of the discovering of such loss, destruction, or theft.

(Emphasis added.)

The State is interpreting the critical language in subsection (4) of this statute — “In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” — to mean:

Pharmacies are compelled to provide all records less than 2 years old and maintained under this section to any deputy or police officer who requests records for copying and inspection. The deputy or police officer does not need a subpoena to obtain these records but is entitled to copy the records upon displaying his or her badge and claiming to be an officer enforcing drug laws.

With all due respect to the State, I simply do not see this interpretation within the words of the statute and am not certain that the State’s reading of the statute reflects the intent of the legislature that enacted it.

The statute should be interpreted to avoid the risk that the legislature’s enactment is unconstitutional. Given that the statute contains no language about the prerequisites for law enforcement’s request of records, I would not-interpret it to give a law enforcement officer the power to obtain these records for use in a criminal case against a customer without a subpoena or some alternative demonstration of adequate suspicion coupled with an appropriate degree of independent supervision of the process.

If the statute actually gives law enforcement the power to obtain random records as the State suggests, then the courts must analyze the statute under the strict scrutiny standard established in Winfield. Assuming that people have a legitimate expectation of privacy in their prescriptions, the State must establish that the statute addresses “a compelling state interest and accomplishes its goal through the use of the least intrusive mean.” Winfield, 477 So.2d at 547.

There is no question that the State has a compelling interest in this subject. It is well known that prescription drug abuse is a deadly problem of epidemic dimensions in Florida. This statute arguably addresses at least two distinct problems. First, it attempts to monitor and regulate licensed pharmacies who can illegally traffic in controlled substances. Second, it attempts to identify customers who may be violating drug laws.

The problem lies in the fact that policing licensed, professional pharmacies does not involve the same privacy issues as random searches of customers’ prescriptions. It is entirely possible that the State may subject a pharmacy to random, unannounced administrative investigations designed to obtain evidence against the pharmacy. See, e.g., Cushing v. Dep’t of Prof'l Regulation, Bd. of Dentistry, 416 So.2d 1197 (Fla. 3d DCA 1982); Stone v. City of Stow, 64 Ohio St.3d 156, 593 N.E.2d 294 (1992). Using records obtained in such administrative searches, however, as evidence in a separate criminal case against a random customer whose records were revealed in this manner raises far different privacy issues.

It seems to me that prescriptions are currently obtained within a patient-physician relationship that creates an expectation of at least some level of privacy. Given that a prescription can only be filled when it is on file with a licensed pharmacy, the prescription on file with the pharmacy should retain a significant degree of privacy. I doubt that most Floridians would anticipate that any law enforcement officer with a badge could obtain these records without any supervision or proof of reasonable suspicion. Clearly, a less intrusive means must exist to investigate this problem than allowing any officer to submit such random requests for prescription information to a pharmacy.

It is worth emphasizing that this court has not seen evidence of police officers or deputies obtaining records merely to check on their daughter’s boyfriend or out of curiosity about the family of a local politician running for office. We have only seen evidence of officers attempting to do their jobs in good faith. But then again, if law enforcement officers conduct probes for improper reasons, under the existing structure we are unlikely to ever see evidence of such misconduct. It is also worth noting that anyone can make an anonymous call to Crime Stoppers for any reason. In this case, the call that resulted in police compelling a large group of pharmacies to disclose Mr. Albritton’s prescription records would not have authorized them to conduct a brief Terry stop of Mr. Albrit-ton while he was walking down a public sidewalk.

Even without an evidentiary hearing, it seems obvious to me that there are means to address the State’s valid public policy interests in this case without this level of interference into private health issues. For example, even an inventory search of a car must be conducted under standardized criteria. See, e.g., Patty v. State, 768 So.2d 1126 (Fla. 2d DCA 2000). A road block to check for drunk drivers requires far more protection of privacy than the State provides under this statute. See, e.g., Campbell v. State, 679 So.2d 1168 (Fla.1996). It seems entirely possible for the legislature to enact a statute requiring pharmacies or doctors dispensing a narrow group of specified controlled substances to transmit a digital copy of information on the prescriptions it fills to a single office in the Department of Law Enforcement Administration or a similar agency within seventy-two hours of the filling of the prescription, along with the thumb print or photo identification of the purchaser. Such a narrow statute could preserve the privacy of most prescription information while allowing the State, through the use of a computer program, to quickly identify doctors, pharmacies, or customers who are involved with suspicious quantities of regulated drugs. Such a statute would not only be a less restrictive approach, but it would allow the State to regulate the abuse of prescription drugs even more effectively. It would also permit an elderly woman to obtain a prescription for a painkiller following a surgery, which she regarded as a private matter, without concern that any law enforcement officer could investigate her drug use. See, e.g., Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977) (upholding constitutionality of state statute requiring doctors or pharmacies dispensing certain drugs to forward copies of the prescription to the state’s department of health).

Given the seriousness of the current prescription drug epidemic and the language of section 893.07(4), the legislature might be well advised to reexamine this statute.

      . We respectfully disagree with the dissent’s assertion that Tamulonis was "indistinguishable” from State v. Bean, 36 So.3d 116 (Fla. 2d DCA 2010). The prescription for oxyco-done in Bean allegedly had been forged. Id. at 117. The State contended on appeal that Bean lacked standing to contest the search and seizure of his records because he did not have a reasonable expectation of privacy in forged documents. Id. at 119. The prescriptions for controlled substances in Tamulonis, however, were not fraudulent. See 39 So.3d at 526.

      . See, e.g., State v. Shukitis, 60 So.3d 406 (Fla. 2d DCA 2010); State v. Yutzy, 43 So.3d 910 (Fla. 2d DCA 2010); State v. Tamulonis, 39 So.3d 524 (Fla. 2d DCA 2010), cert. denied, 52 So.3d 662 (Fla. Jan.3, 2011); State v. Fernandez, 36 So.3d 120 (Fla. 2d DCA 2010); State v. Bean, 36 So.3d 116 (Fla. 2d DCA 2010); State v. Carter, 23 So.3d 798 (Fla. 1st DCA 2009);
        Cushing v. Dep't of Prof'l Regulation, Bd. of Dentistry, 416 So.2d 1197 (Fla. 3d DCA 1982).

      . Indeed the motion to suppress in Tamulon-is, 39 So.3d 524, which is still in the records of this court, relied on and attached a copy of the trial court’s order in Bean, 36 So.3d 116.

      . Our record does not contain many items that would be useful in evaluating this appeal. The trial court did not require the State to provide a transcript of the anonymous call or any of the documents sent, received, or created during this investigation.

      . In Tamulonis, the panel seemed to believe that the statute was narrowly written because of the phrase, "for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” 39 So.3d at 527. However, all law enforcement officers have a duty to enforce drug laws. There is no rule or procedure disclosed in these cases by which only a limited number of highly trained officers may enforce this statute.

      . Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).


author: KELLY, Judge.

text:
    Joshua ROSA, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4061.
    District Court of Appeal of Florida, Second District.
    March 2, 2011.

      Brian E. Gonzalez of Law Offices of Brian E. Gonzalez, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   KELLY, Judge.

Joshua Rosa appeals from his judgment and life sentence for the first-degree felony murder of thirteen-year-old Stephen Tomlinson, who died of asphyxia due to strangulation. Rosa argues that his conviction should be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony for a felony murder charge if a single act of abuse led to the child’s death. We disagree that the child abuse in this case was a single act and therefore affirm.

In Florida, a defendant may be convicted of first-degree murder under a premeditation theory or under a felony murder theory. See § 782.04, Fla. Stat. (2007). In this case, Rosa was charged under both theories. The case was submitted to the jury with a verdict form that gave the jury the choice of convicting Rosa of either first-degree premeditated murder or felony murder with a predicate act of aggravated child abuse. The jury convicted Rosa of felony murder.

Rosa, citing Brooks v. State, 918 So.2d 181 (Fla.2005), argues that when a single act constitutes both the child abuse and the homicide, the offenses merge, and the State is precluded from proceeding to verdict based upon the felony murder theory. In Brooks, the State pursued a felony murder theory with aggravated child abuse as the predicate offense where a child died of a single stab wound. Id. at 197-98. Because there was no separate act of abuse besides the stab wound that caused the child’s death, the court opined that the abuse merged with the homicide, and thus could not serve as the predicate felony for a felony murder conviction. Id. at 198-99.

The State argues that Brooks is distinguishable because here the evidence showed that the victim suffered more than one act of violence. We agree. The record reflects that the injuries to Tomlin-son’s neck indicated that the attacker used multiple grips or holds. While the State’s expert and the defense expert differed regarding whether the primary mode of asphyxiation was manual or forearm strangulation, both agreed that the attacker used multiple grips or holds. Tomlinson’s expert opined that there were multiple applications of “strangling force” applied to Tomlinson’s neck and the State’s expert testified that the position of the attacker’s hands changed several times and that Tomlinson’s death was caused by “more than one hold.” Other evidence showed Tomlinson suffered multiple abrasions on various parts of his body, such as his right shoulder, wrist, hip, and shin, and on his left arm and hand, which the State’s medical expert claimed, “related in some fashion to the struggle that led to [Tomlin-son’s] death.” Medical experts also opined that some of Tomlinson’s injuries were caused by someone forcefully yanking off Tomlinson’s pants and belt, or perhaps by the impact caused by Tomlinson falling or being pushed to the ground. Contusions in the muscles on Tomlinson’s back were caused by a blunt object with significant force, possibly by the attacker holding Tomlinson down with one knee, or alternatively, by Tomlinson hitting the ground.

However, even without the evidence of multiple injuries, we would not necessarily conclude that this strangulation constituted a single act of aggravated child abuse. This case is analogous to Lewis v. State, 34 So.3d 183 (Fla. 1st DCA 2010), review granted, 2011 WL 171155 (Fla. Jan. 10, 2011), in which the defendant was convicted of first-degree felony murder based on aggravated child abuse in the drowning death of her seven-year-old daughter. In Lewis, the First District noted that it did not consider the act of drowning the child to be a single act of abuse. Id. at 187. In addition to rejecting the contention that the drowning was a single act of abuse, the court held that the merger doctrine did not apply even if it was a single act of abuse. Id. at 186-87.

The plain, unambiguous language of the [felony murder] statute demonstrates that the legislature intended that a defendant who kills a child during the perpetration of the crime of aggravated child abuse may be charged and convicted of both aggravated child abuse and felony murder, regardless of the number of acts of abuse which caused the child’s death.

Id. The court rejected as dicta the statements in Brooks that the State should have been precluded from invoking the felony murder doctrine where a single stab wound caused the victim’s death and that the State should have been limited to proving first-degree murder only on the theory of premeditation. Id. at 186. The First District. based its conclusion on the fact that the court ultimately affirmed Brooks’s felony murder conviction. Although we cannot agree that the language in Brooks is dicta, we do agree it appears to conflict with the plain language of section 782.04. Brooks makes no reference to the statute, thus it remains unclear how the decision in that case can be reconciled with the statute.

Because of the seriousness of this issue, the First District in Lewis certified the following question to the supreme court to be one of great public importance:

WHETHER BROOKS v. STATE, 918 So.2d 181 (Fla.2005), HOLDS THAT AGGRAVATED CHILD ABUSE CANNOT SERVE AS THE UNDERLYING FELONY IN A FELONY MURDER CHARGE IF ONLY A SINGLE ACT OF ABUSE LED TO THE CHILD’S DEATH.

Because we agree that clarification on this issue is needed, we also certify the question to be one of great public importance. We find no merit to Rosa’s remaining points on appeal and therefore affirm.

Affirmed.

NORTHCUTT and WALLACE, JJ., Concur.

      . Section 782.04 defines felony murder, in pertinent part, as:
      (l)(a) The unlawful killing of a human being:

      2. When committed by a person engaged in the perpetration of, or in the attempt to perpetrate, any:

      h. Aggravated child abuse.