text:
    ALTMAN CONTRACTORS and North River Insurance Company, Appellants, v. Dynelle GIBSON, Appellee.
    No. 1D10-3008.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Rehearing Denied June 21, 2011.

      William H. Rogner of Hurley, Rogner, Miller, Cox & Waranch & Westcott, P.A., Winter Park, for Appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Laurie Thrower Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) challenges an order of the Judge of Compensation Claims that finds Claimant’s mold exposure injury compensable. We agree with the E/C’s argument that reversal is warranted because no record evidence establishes the levels of mold to which Claimant was exposed in the workplace, a statutory condition imposed by section 440.02(1), Florida Statutes (2005). See Matrix Employee Leasing v. Pierce, 985 So.2d 681 (Fla. 1st DCA 2008). We also agree that the JCC erred in substituting the causation standard expressed in Festa v. Teleflex, Inc., 382 So.2d 122 (Fla. 1st DCA 1980), for the more exacting statutory causation standard for mold exposure claims enacted by the Legislature. See Mangold v. Rainforest Golf Sports Ctr., 675 So.2d 689, 642 (Fla. 1st DCA 1996) (“When the Legislature makes a substantial and material change in the language of a statute, it is presumed to have intended some specific objective or alteration of the law, unless a contrary indication is clear.”). Because we agree with these arguments, we REVERSE the order on appeal, and need not reach the remaining issues raised by the E/C.

HAWKES and MARSTILLER, JJ„ concurs; WOLF, J., dissents with opinion.

WOLF, J.,

Dissenting.

The substantial medical and lay evidence presented in this case, accepted as credible by the JCC, supports the JCC’s determination that the mold exposure injury was compensable. Accordingly, I dissent.

The evidence found credible by the JCC established that Claimant, a construction supervisor, encountered hairy and protruding mold in an indoor work environment on a regular basis and was charged with the duty of inspecting and reporting the mold incursion to the Employer. At one point, a substance visually identified as mold by Claimant and treated as such by the Employer was found on wet drywall which required extensive expenditures by the Employer to remove and destroy. Workers hired by the Employer actually removed the mold while outfitted in hazardous material suits. While the demolition was occurring, Claimant, who was not wearing protective gear, accidently happened into a cloud of dust and mold spores. After these exposures, and at a time temporally consistent with the germination of the colonies of mold later found in Claimant’s lungs, Claimant became ill and was rendered comatose as a result of the mold infection in her lungs. The drywall and the mold in the workplace were destroyed and never tested (nor was the ah' in the work environment), but the mold in Claimant’s lungs was tested and affirmatively identified by a medical expert as the most predominant form of mold found on wet drywall.

Both Claimant’s independent medical examiner (IME), and the expert medical advisor (EMA) pulmonologist, whose opinion carries a statutorily imposed “nearly conclusive effect,” testified that although the mold in question is ubiquitous (consistent with the E/C’s expert opinion), the normal, everyday levels of mold to which all are exposed are not concentrated enough to cause Claimant’s condition. Pierre v. Handi Van, Inc., 717 So.2d 1115, 1117 (Fla. 1st DCA 1998). The EMA further testified that based on the medical and lay evidence presented to him, in his expert opinion, Claimant’s exposure occurred in the workplace. Except for the E/C’s expert’s testimony that Claimant’s exposure could have occurred anywhere, a proposition which drew skepticism from the JCC, the record failed to reveal any other possible source of Claimant’s mold exposure. Based on the foregoing facts, the JCC found that she was clearly convinced that Claimant’s condition was caused by her exposure to mold in the workplace. In reaching this conclusion, the JCC properly exercised her prerogative as the finder of fact. The majority holds, however, that the JCC was prohibited from reaching her finding of compensa-bility because Claimant failed to introduce direct evidence of “the levels of mold to which [she] was exposed in the workplace.”

While section 440.02(1), Florida Statutes (2005), imposes a heightened standard for the compensability of injuries caused by mold exposure, it does not impose the practically impossible burden suggested by the majority. Section 440.02(1) provides that an injury caused by exposure to fungus or mold is not a compensable injury, unless “there is clear and convincing evidence establishing that exposure to the specific substance involved, at the levels to which the employee was exposed, can cause the injury or disease sustained by the employee.” (Emphasis added). Here, Claimant’s injury was severe Aspergillus lung infection (a colonization of mold spores in Claimant’s lungs), and all of the medical experts agreed that this condition resulted from nothing other than Claimant’s unquestionable exposure to mold spores which infected, and then grew in, her lungs. The E/C’s medical expert opined that the mold spores which in fact caused Claimant’s condition are ubiquitous, and sufficient exposure could have occurred anywhere; however, there was no dispute that exposure to this mold caused Claimant’s injury. Accordingly, the only remaining factual question for the JCC to resolve was where Claimant’s sufficient mold exposure occurred, not whether it occurred, or whether it was capable of causing the injury in question.

Under the Workers’ Compensation Law, Claimant had the obligation of proving her exposure to mold by clear and convincing evidence. The clear and convincing standard of proof can be met by evidence which is “wholly circumstantial.” Cf. Fla. E. Coast Ry. Co. v. Thompson, 93 Fla. 30, 111 So. 525, 528 (Fla.1927); see also Century Prop., Inc. v. Machtinger, 448 So.2d 570, 573 (Fla. 2d DCA 1984) (“While the proof may be wholly circumstantial, it is always incumbent upon the person asserting fraud to prove it by clear and convincing evidence.”). Whether evidence is clear and convincing is predicated on a belief and conviction in the mind of the finder of fact, not that of the appellate court. See McKesson Drug Co. v. Williams, 706 So.2d 352, 354 (Fla. 1st DCA 1998) (“the appellate court’s function is not to conduct a de novo proceeding or reweigh the evidence by determining independently whether the evidence as a whole satisfies the clear and convincing standard, but to determine whether the record contains competent substantial evidence to meet the clear and convincing evidence standard.”).

Section 440.02(1) does not require an employee to demonstrate the precise levels of mold to which she is exposed, nor does it require that any element of a mold claim be proven by any particular form of evidence, or to a degree of irrefutable certainty. To reach its conclusion, the majority has improperly afforded weight and credence to the E/C’s expert testimony, suggesting that repeated contemporaneous air quality studies were necessary in this case to determine the occupational cause of Claimant’s injury. This was testimony which the JCC permissibly rejected.

Here, the very expert who testified regarding the necessity of air quality studies (whose opinion on causation was rejected by both the JCC and the EMA), also testified that airborne mold levels are very dynamic and fluctuate depending on a multitude of factors, making air quality samples unreliable and only indicative of what is in the air at the time the sample is taken. As conceded by the expert, such testing, even when performed, will capture only those mold spores external to the employee’s lungs, nose, or mouth, and even instantaneous samples will not directly prove the levels of inhalation, digestion, or exposure, but will capture only spores to which the individual was not exposed. Here, however, the mold which in fact invaded Claimant’s lungs was sampled and proven to be present in sufficient quantities to cause the injury sustained.

Accordingly, the majority decision, founded on the absence of contemporaneous air-quality studies and a complete devaluation of the circumstantial evidence of record, has constructed a burden of proof for mold exposure claims which is artificial, illusory, and practically unachievable and represents a burden which far exceeds that imposed by the Legislature.

Further, the case of Matrix Employee Leasing v. Pierce, 985 So.2d 631 (Fla. 1st DCA 2008), cited by the majority for its conclusion, is easily distinguishable from this case. In that case, the somewhat equivocal opinion given by the claimant’s expert as to the particular ailment contracted by the claimant was in large part based on an inaccurate history given by the claimant. In addition, the expert could not identify which chemical from the workplace caused the injury. In the instant case, the determination of the actual injury suffered by Claimant was not discovered as a result of patient history. Even if it was, there is no indication of an inaccurate patient history. Further, in the instant case, the actual type of mold that caused the injury was found in the patient’s lungs. Thus, Matrix does not support the majority’s conclusion. I would affirm.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William S. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6504.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Rehearing Denied June 20, 2011.
    William S. Johnson, pro se, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the denial of grounds two through eight of the appellant’s motion. However, we reverse and remand for the trial court to conduct an evidentiary hearing or to attach records conclusively refuting the appellant’s claim that counsel was ineffective for failing to object to the introduction of the hearsay testimony of Officer Reed (ground one of the motion). Officer Reed allegedly suggested that an anonymous tipster identified the appellant as the perpetrator of the burglary or that the appellant fit the description of the anonymous witness. See Postell v. State, 398 So.2d 851, 854 (Fla. 3d DCA 1981) (“[T]he inescapable inference from the testimony is that a non-testifying witness has furnished the police evidence of the defendant’s guilt, the testimony is hearsay, and the defendant’s right of confrontation is defeated ...”). Nothing in the record refutes that claim or the claim that he was prejudiced by counsel’s failure to object.

AFFIRMED in part; REVERSED and REMANDED in part.

WOLF, PADOVANO, and ROWE, JJ„ concur.


text:
    Willie HICKMAN, Petitioner, v. Edwin G. BUSS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-5471.
    District Court of Appeal of Florida, First District.
    April 29, 2011.
    Rehearing Denied June 22, 2011.
    Willie Hickman, pro se, Petitioner.
    Jennifer Parker, General Counsel, Florida Department of Corrections, and Carolyn J. Mosley, Assistant General Counsel, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Williams v. Florida Parole Comm’n, 977 So.2d 783 (Fla. 1st DCA 2008).

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


author: PER CURIAM. SHEPHERD, J., SCHWARTZ, Senior Judge

text:
    Joshua LADSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-452.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.
    Carlos J. Martinez, Public Defender, and Joanna Ingalls, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before SHEPHERD and SALTER, JJ„ and SCHWARTZ, Senior Judge.
   PER CURIAM.

Joshua Ladson appeals his conviction of manslaughter by culpable negligence with a firearm, as a lesser included offense of second degree murder with a firearm, and his sentence. He contends that the trial court erred in denying his motion to suppress his confession. We affirm.

The testimony at the suppression hearing established that a homicide detective for Miami-Dade County was assigned to investigate the shooting death of a motorcyclist. After receiving numerous Crime Stoppers tips, the detective identified Ladson as a person of interest during the week following the shooting. At the time, Ladson was 16 years old. On the morning of the ninth day following the shooting, the detective and three other officers on his investigative team surveilled Ladson’s home, anticipating a chance to speak with him as he left for school.

Although initially distracted by the departure of Ladson’s older brother from the home, the team ultimately observed Lad-son leaving the back of the house, followed him, and asked him for identification. The lead detective then asked Ladson, with Ladson standing outside the police car and not in handcuffs, whether he was willing to come and talk further with the detective further about an investigation. Ladson said “no problem,” but he did ask if the detective thought Ladson could be back in time to go to football practice. The detective responded that it depended on how the interview went. The detective did not tell Ladson that he did not have to accompany him to the police station.

Ladson was frisked for officer safety outside the police car before the drive to the police station. He sat in the front seat of the police car and was not handcuffed. The lead detective asked Ladson for a parent’s telephone number and tried unsuccessfully to contact his mother. At the station, Ladson was taken to an inteiwiew room. He was offered something to drink, food, and bathroom breaks, and he was told that he could ask for any of those at any time. After about ten minutes of preliminary interview questions, he signed a written Miranda warning.

The officers made four separate calls to reach Ladson’s mother or father, but these were unavailing until later in the day. Initially, Ladson denied any knowledge of, or involvement in, the shooting. Later (a little over two hours after his arrival at the station), Ladson implicated another person in the shooting, and then claimed that his half-brother had fired the gun that killed the victim. About three hours after he arrived at the station, Ladson admitted to being the shooter. After additional questions and a break for food, Ladson was again given his Miranda rights and the lead detective obtained a sworn statement (transcribed and videotaped). The lead detective testified that he did not consider Ladson to be in custody until after he provided the sworn statement.

Analysis

The trial court held that Ladson’s first encounter with the police as he was walking away from his back door was consensual, and not a Terry stop. The court found that Ladson accompanied the officers voluntarily and that the frisk for officer safety before the drive to the police station also was voluntary, relying upon Caldwell v. State, 985 So.2d 602 (Fla. 2d DCA 2008).

The trial court then analyzed the Miranda requirements appropriately under the tests established in Ramirez v. State, 739 So.2d 568, 574 (Fla.1999), and Roman v. State, 475 So.2d 1228, 1281 (Fla.1985). The question presented on review is whether any reasonable person in Lad-son’s position would have believed that functionally he was under arrest and not free to go.

As the Florida Supreme Court has recently reiterated, these are fact-laden inquiries depending “heavily on the circumstances of the specific encounter at issue.” Caldwell, 41 So.3d at 199. The trial court’s assessment of the credibility of the lead detective is entitled to deference here.

Ladson and our dissenting colleague have urged us to follow B.S. v. State, 548 So.2d 838 (Fla. 3d DCA 1989). In B.S., a 17 year-old was told by two detectives at her home (in the absence of a parent, and while baby-sitting her younger brother) that they “wanted” her to come to the station for questioning. When she expressed concern that she could not leave her brother alone, the officers told her that they would take him to the station with her (and did exactly that). Id. at 839. This Court concluded, with a dissent, that this scenario was functionally equivalent to an arrest and reversed a trial court order denying a motion to suppress her confession.

These cases are fact-intensive and occasionally close (to address our learned colleague’s criticism for mentioning that there was a dissent from his majority opinion in B.S. in 1989). Our colleague’s enthusiastic dissent in this case is reflected in other recent commentaries on the evolution of the law of “consent:”

Over time, the concept of “consent” to a search has become divorced from its common meaning. In the Fourth Amendment context, “consent” has come to mean that set of circumstances that the law will tolerate as an exception to the probable cause or warrant requirement. What passes for “consent” today would not have survived a motion to suppress 25 years ago. Now, even aggressive conduct by the police will not necessarily vitiate “consent” when viewed as part of the “totality of the circumstances.” Thus, in Golphin v. State [,945 So.2d 1174 (Fla.2006)], the Supreme Court rejected the concept that, as a matter of law, an otherwise consensual encounter matures into a seizure when an officer retains a person’s identification to conduct a check for outstanding warrants. Id. at 1187-89. Similarly, in Caldwell v. State, 41 So.3d 188 (Fla.2010), the Supreme Court held that the administration of Miranda warnings, as a matter of law, does not transform a consensual encounter into a seizure. Under Golphin and Caldwell, the challenged police conduct was but one factor to be considered in the totality of the circumstances.
The “totality of the circumstances” approach has expanded the concept of “consent” in a way that has had a significant effect on the administration of criminal justice. It allows a trial court to rely on other factors that swallow aggressive police conduct and contract the limits of Fourth Amendment protection.

Ruiz v. State, 50 So.3d 1229, 1231-32 (Fla. 4th DCA 2011). In Ruiz, and in Judge Hazouri’s special concurrence citing Ruiz, however, the trial court’s denial of a motion to suppress based on “consent” was affirmed. In those cases, as here:

... [A]s an appellate court, we must defer to the express finding of credibility by the trial court. We were not there. We did not see the witnesses testify. If believed, the detective’s testimony supports the court’s ruling.

Id. at 1233. The trial judge in this case, as in Ruiz, “punctiliously performed the duties of [her] office in this case” and did not “devolve into a rubber stamp for law enforcement.” Id.

After a careful review of the record in this case, we conclude that the trial court diligently applied Ramirez and Caldwell (the ultimately-approved district court opinion in that case) to the police interaction with Ladson as it moved from initial encounter to confession. We will simply agree to disagree with our respected colleague as to (a) whether the manner in which the detective parked his vehicle in the swale alongside the street travelled by Ladson, and the scenario when a second vehicle arrived (neither vehicle activated emergency lights), were coercive; (b) whether the majority opinion in B.S. 22 years ago is distinguishable on its own facts; and (c) whether the majority has created and applied some “mythical doctrine.”

Affirmed.

SHEPHERD and SALTER, JJ., concur.

SHEPHERD, J.,

concurring.

I concur in the affirmance of the judgment of conviction and sentence in this case.

The dissenting opinion creates an image of a police car careening to a halt in the footpath of an unsuspecting citizen, urgency exuding, and an officer leaping forward to “ask” the person to “come to the station.” If these were the facts of the case, I would agree that Joshua Ladson’s confession should have been suppressed. The problem is this image does not square with the record.

The incident involved two unmarked police units under the command of lead officer, Detective Juan Segovia. One of the two vehicles, occupied by Detective Segovia and Detective Mike Dominguez, was stationed in front of the house where the defendant and his brother, Michael Lad-son, lived, awaiting Michael’s return from inside the house with identification. While waiting for Michael to emerge, the detectives observed a young black male exit from the side or back of the house and walk down the middle of the street to the east. Because Detective Segovia and his partner were occupied, Detective Segovia called the officers in the second unit, Sergeant Peter Andreu and Detective Larry Belyeu, who were parked about two blocks away, to see if they could approach and identify the individual who had just left the house. Sergeant Andreu and Detective Belyeu did so. Within minutes, Detectives Segovia and Dominguez, having given up on Michael coming out of the house again, drove to where the other officers found the defendant. The only testimony as to the location of the second unit, occupied by Sergeant Andreu and Detective Belyeu, who made the initial stop of Joshua, was that of Detective Segovia, the only witness at the suppression hearing. His testimony was as follows:

Q Okay. All right. So when you come up to Joshua Ladson, can you tell us where he is?
A He’s standing on the — on the roadway and my sergeant’s car was parked like on the, kind of like half in the grass half on the road, and they were just talking to him outside the car.

There is no testimony in the record about how Sergeant Andreu and Detective Be-lyeu approached Joshua in their vehicle, or the speed at which the vehicle travelled. Any suggestion they took some action, either personally or with their vehicle, which constitutes evidence that Joshua was being taken into custody, is incorrect.

Nor does the answer to Joshua’s question about whether he would be back in time for football practice connote anything sinister. The testimony of Detective Segovia on this topic, which continues immediately following the testimony just quoted, is as follows:

Q Okay. He’s — Just so we’re a hundred percent clear, he’s inside or outside a police [car] at this time?
A Outside a police car.
Q And he’s standing on the street?
A Yes, sir.
Q Can you tell us if he’s in handcuffs?
A He’s not. No, he’s not cuffed.
Q So he’s standing on the street, not in handcuffs, not in the police car. Did you ask him his name?
A Yes, sir.
Q What does he say?
A He told me his name was Joshua Ladson.
Q Did you ask him any information regarding his age or date of birth?
A He provided his date of birth.
Q And what — When he told you his date of birth, how old did he turn out to be?
A I believe he was sixteen at the time, if I’m correct.
Q All right. At that time what did you ask him?
A At that time I asked him if he was willing to come and talk to me at the office reference an investigation.
Q And when you asked him if he’d mind going back to the office to talk about a — an investigation, what did he say?
A He said no problem. His only question was if I felt he would be back on time to go to football practice.
Q Okay. And what did you tell him when — when he asked if he — he would be back for football practice?
A I told him that all depended on how the interview-on how the interview went.
Q Was he under arrest?
A No, sir.

In fact, the answer provided by Detective Segovia is likely the only response that would not support the suppression of Joshua’s confession. Had Detective Segovia replied that Joshua would certainly not be able to attend football practice, such an answer would have indicated to a reasonable person that Joshua was not free to leave. On the other hand, had he replied that Joshua definitely would be able to attend football practice regardless of his statement to police, this answer would have suggested Joshua’s confession was obtained through a deceptive statement, as it could be understood as a promise not to prosecute. See Chambers v. State, 965 So.2d 376, 378 (Fla. 4th DCA 2007) (“For a confession to be admissible, it must be made voluntarily ... it must not be obtained by threats, promises, or the exertion of any improper influence ... promises not to prosecute may render a confession invalid.”) (internal citations omitted). Detective Segovia’s response to whether Joshua would be back in time for football practice does not indicate a custodial atmosphere to a reasonable person.

Defense counsel, borrowing from B.S. v. State, 548 So.2d 838 (Fla. 3d DCA 1989), in her brief, accurately poses the issue to be decided:

If [Ladson] went to the station because [he] had been the subject of the functional equivalent of an arrest — which was admittedly unjustified — the confession must be suppressed.... On the other hand, if [he] went there on [his] own accord and without coercion, there was no illegality which would preclude the validity of the confession.

Id. at 839 (internal citations omitted). In determining which category the set of facts in our case falls, our precedent directs us to follow “a process ... based upon a consideration of the ‘totality of the circumstances,’ [the] ... relevant inquiry [being] how a reasonable man in the suspect’s position would have understood his situation.” Id. (internal citations omitted). Applying these rules, our case is both factually and legally distinguishable from B.S.

In B.S., the police approached B.S. at her home, “an area where a person enjoys the highest reasonable expectation of privacy under the Fourth Amendment,” see Payton v. New York, 445 U.S. 573, 589-90, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980), where she appeared in her pajamas, at an hour one might glean was either quite early or quite late in the day, babysitting her younger brother. B.S., 548 So.2d at 838. The police told B.S. they “wanted” her to come to the station for questioning. Id. When B.S. expressed concern she could not leave her brother alone, the officers told her they would take him to the station with her. Id. at 839. That is what occurred. Based on this showing, we reversed an order denying B.S.’s motion to suppress her confession, emphasizing that the police officers “phrased their wish for the appellant to come with them in terms of what they ‘wanted’ her to do.” We said that this term “while perhaps not so coercive as an order or demand, is much closer to that end of the continuum than a clearly non-mandatory ‘request’ or invitation.” Id. at 840 (quoting 2 W. LaFave, Search & Seizure § 5,1(a) at 391).

Our case is different. Here, Joshua was not approached at home. Rather, he was approached as he walked down the street on his way to school. There is no evidence of aggressive behavior by the officers who made initial contact with Joshua. Detective Segovia testified that he “asked [Joshua] if he was willing to come and talk to [him] at the office [in] reference [of] an investigation.” (Emphasis added). This testimony by Detective Segovia, which defense counsel was unable to shake on cross-examination, falls much closer to the non-mandatory end of Professor LaFave’s “coercion continuum.”

I am willing to accept the several considerations taken from B.S., see B.S., 548 So.2d at 839-41, advanced by both Joshua and the dissent as the “decisive” considerations in a case of this type. See Dissent Op. at pp. 17-20. However, unlike the defense and the dissent, I am of the view that only two of those four considerations exist in this case: (1) Ladson was sixteen on the morning of August 16, 2006, when he was approached by Detective Segovia, and (2) Ladson found himself in a “virtually coercive situation.” See id. at 839-40. Of course, all police encounters are coercive. Police encounters with persons who are uneducated, of diminished mental capacity, or a minor, are inherently likely to be even more coercive. However, our job remains to examine the totality of the circumstances, without giving undue weight to any particular factual circumstance, and determine whether the act in question is voluntary within the meaning of the Fourth Amendment. See Kaupp v. Texas, 538 U.S. 626, 629, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (“A seizure of the person within the meaning of the Fourth and Fourteenth Amendments occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business.”).

Our science is inexact, but in this case one thing is clear. Unlike B.S. — where the police accosted B.S. at her home, told her they “wanted” her to come to the station, and then countered her effort to demur by stating they would take her younger brother along — the encounter in our case happened in the middle of a residential street, at a reasonable hour, as Joshua was walking to school. There is no evidence of aggressive police tactics, and the cross-examined testimony of the lead detective was that he “asked” Joshua if he was willing to go to the police station. It is hard to divine what else the police could have done during this encounter that was not done short of expressly advising the youth the law did not require him to go to the station. However, I am unwilling to expand the exclusionary rule to impose such a requirement on officers dealing with the youth, the only deducible imperative I can draw from the frustration exhibited by the dissent in this case.

Viewing the record as a whole, I find no illegality in the police procedures employed in this case, and therefore no reason to have precluded the admission of the confession at the trial of the case.

SCHWARTZ, Senior Judge

(dissenting).

I cannot accept that a sixteen year old with no previous record, who was stopped by police officers who swerved their car in front of him on his way to school, asked to come to the station with them and told whether he is able to make football practice depends on how the questioning goes, may be deemed to have voluntarily “consented” to his ensuing, otherwise constitutionally unsupportable imprisonment.

Gut reaction aside, the factual and legal analysis which supports my disbelief in the majority’s conclusion to that effect is well stated in the appellant’s brief. It is quoted, almost in its entirety as follows:

The trial court erred in denying Joshua Ladson’s motion to suppress his statements which were obtained through custodial interrogation after his illegal arrest. Consideration of the totality of the circumstances in this case compels the conclusion that Joshua Ladson was involuntarily arrested rather than having voluntarily accompanied the officers to the police station, as a reasonable person in his position would not have believed that he was free to disobey the police officers who took him to the police station for questioning. As the police lacked probable cause to believe that he had committed any offense at the time of that arrest, and as the statements obtained shortly after the illegal arrest were not purged of their primary taint, the trial court erred in denying the motion to suppress those statements.
A confession is not admissible at trial if it was obtained through custodial interrogation after an illegal arrest, unless the causal chain between the arrest and the confession is broken, and the confession is “sufficiently an act of free will to purge the primary taint.” Wong Sun v. United States, 371 U.S. 471, 486, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963); Brown v. Illinois, 422 U.S. 590, 95 S.Ct. 2254, 45 L.Ed.2d 416 (1975); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979).
The record in this case establishes that (1) on the morning of August 22, 2006 two members of a homicide investigative team pulled their vehicle halfway onto the grass and asked Joshua (who was on his way to school) his name, Joshua remained with these detectives until two more members of the team pulled up in another vehicle, confirmed his identity and asked him if he was willing to go to the police station with them, no one told Joshua that he was not under arrest and that he did not have to come with them, they frisked him before he entered their vehicle for transport to the police station, when they arrived at the police station, Joshua was placed inside of an interrogation room in the homicide office, Miranda warnings were administered, and he was interviewed by one or two detectives at a time for several hours; (2) at the time of this de facto arrest, the police lacked probable cause to believe he had committed any offense; and (3) the statements obtained shortly after the illegal arrest were not purged of their primary taint.
A seizure of the person within the meaning of Fourth and Fourteenth Amendments of the United States Constitution and Article 1, Section 12 of the Florida Constitution occurs when, taking into account all of the circumstances surrounding the encounter, the police conduct would have communicated to a reasonable person that he was not at liberty to ignore the police presence and go about his business. See Kaupp v. Texas, 588 U.S. 626, 123 S.Ct. 1843, 1845, 155 L.Ed.2d 814 (2003); Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991); Michigan v. Chesternut, 486 U.S. 567, 569, 108 S.Ct. 1975, 100 L.Ed.2d 565 (1988).
The courts have taken into account a number of different considerations in deciding whether or not a certain situation constituted an arrest or only consensual presence. See Wayne R. LaFave, 3 Search and Seizure § 5.1(a) at 4-9 (4th ed. 2009 Update). Applying those considerations to the facts of this case compels the conclusion that Joshua Ladson was involuntarily arrested rather than having voluntarily accompanied the officers to the police station.
1. “The consideration most frequently cited in the cases finding consent is that the police specifically advised the suspect that he was not under arrest or that he was free to leave if he wished .... though it is important to note that the explanation can be nullified by other police conduct of a coercive nature ... Likewise, the cases coming down on the arrest side of the issue often note that such explanation was lacking.” LaFave, § 5.1(a), at 4-5 (footnotes omitted); see Kaupp v. Texas, 538 U.S. 626, 123 S.Ct. 1843, 155 L.Ed.2d 814 (2003) (defendant’s transportation to police station constituted an illegal arrest where defendant taken to crime scene and then to interrogation room at the police station with no indication he was free to decline); Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (defendant’s transportation to police station constituted an illegal arrest where defendant was picked up for questioning, driven to police headquarters, placed in an interrogation room, and never was informed he was free to go); B.S. v. State, 548 So.2d 838, 840 (Fla. 3d DCA 1989) (failure to advise suspect that she was not required to accompany police officers, and had every right to refuse “decisive on the side of the conclusion that compliance with police authority ... is not voluntary”); compare Taylor v. State, 855 So.2d 1 (Fla.2003)[.]
In the present case, none of the several detectives who spoke to Joshua Lad-son (either a few blocks from his home, in the car on his way to the police station, or at the station) ever told him that he was free to go or that or that he was not under arrest (SR.76, 86-87, 122). The trial court, in clear error below, improperly found that this fact has “no weight in this analysis for the purposes of this second issue as to whether or not he was in custody when he was transported to the police department.” (SR.122).
2. The chances of a finding of consent are enhanced if the police put the matter to the suspect only in terms of a request, but the situation is otherwise if the suspect’s presence is ordered or if the initial police “request” is negated by other events. LaFave, § 5.1(a) at 4; see Kaupp v. Texas (suspect’s response of “Okay” after suspect told “we need to go and talk” not a showing of consent under the circumstances); B.S. v. State, 548 So.2d at 840 (“The officers phrased their wish for the appellant to come with them in terms of what they ‘wanted’ her to do. In our judgment, this term, while perhaps not so coercive as an order or demand, is much closer to that end of the continuum than a clearly non-mandatory ‘request’ or invitation.”); United States v. Allen, 436 A.2d 1303, 1309 (D.C.App.1981) (defendant told “you have to come to homicide with us”; deemed coercive); compare Craig v. Singletary, 127 F.3d 1030 (11th Cir.1997) (no arrest where after defendant volunteered to help them, police asked him if he would come down to the police station, and defendant agreed to do so).
Detective Segovia testified that he asked Joshua Ladson if he was willing to go to the police station. However, when asked by Joshua if he “would be back on time to go to football practice[,]” Detective Segovia responded “that all depended on how the interview — on how the interview went.” (SR.37). This response indicates that his request was in fact mandatory, not permissive.
Additionally, when the two detectives initially approached Joshua and asked him his name, they pulled their car halfway onto the grass. (SR.36). Joshua then remained with them until Detective Segovia and Detective Dominguez arrived in a second vehicle. A reasonable person in this situation would not have believed he was free to leave. See G.M. v. State, 19 So.3d 973 (Fla.2009).
3. “Resort to physical restraint is almost certain to result in a holding that an arrest had been made ... .while the lack of such restraint is a consideration pointing toward consent.... But the situation can amount to an arrest even though there were no formal words of arrest and no booking.” LaFave, § 5.1(a) at 4 (footnotes omitted).
When the two detectives initially approached Joshua they pulled their car halfway onto the grass and asked him his name. (SR.36). From that point forward, when two more detectives came to the scene, he was at all times in the presence of officers. While being transported to the police station, Joshua was seated in the front seat and not handcuffed, but he was frisked prior to entering the car. At the police station, he was kept inside an interrogation room and officers were either present inside the room or outside the room at all times.
At least one Florida court has found that the giving of Miranda warnings converts a consensual encounter into an arrest. See Raysor v. State, 795 So.2d 1071 (Fla. 4th DCA 2001) (en banc).
“Because Miranda rights are not required to be read to suspects unless they are undergoing custodial interrogation, it follows that a person who has been read his Miranda rights would reasonable assume that he is not free to leave.” Raysor, 795 So.2d at 1072 (citation omitted). But see Caldwell v. State, 985 So.2d 602 (Fla. 2d DCA 2008), review granted 7 So.3d 1097 (Fla.2009) (disagreeing with the Fourth District and finding that an officer who contacted defendant did not transform a consensual encounter into an illegal seizure by giving Miranda warning); LaFave, § 5.1(a) at 4 (“Moreover, ‘the issuance of Miranda warmings as a cautionary measure’ does not itself transform the situation into a Fourth Amendment seizure.”) (footnote omitted).
In this case, Joshua Ladson was given his Miranda warnings and signed a written waiver of these rights. Pursuant to Raysor, this fact evidences that a reasonable person would not assume that he is free to leave.
5. “Various [additional] circumstances can contribute to the conclusion that the defendant’s presence at a police facility or in a police environment was voluntary. Included are that the suspect appeared at the station without there being any prior police request that he do so .... that he actually volunteered to appear when he learned the police were interested in speaking with him ... .that he appeared following a request from the police which reached him via a third party ... .that he determined the time and place of the police contact .... that he transported himself to the police facility ... or that he actually stated he did not view the encounter as an arrest.... Courts also take into account facts tending to show that the suspect ‘deliberately chose a stance of eager cooperation in the hopes of persuading the police of his innocence.’ ” LaFave, § 5.1(a) at 4 (footnotes omitted).
None of these factors indicating consent are present in this case.
6. “Other circumstances which are coercive in nature or which limit the suspect’s options, on the other hand, are likely to influence a finding that consent was lacking. Included here are such circumstances as that police were holding some of the suspect’s effects .... that they deprived him of his means of departure .... that the suspect was aware the police already had substantial evidence of his criminal involvement .... that many officers were involved in the encounter .... or that the suspect was subjected to intensive interrogation .... Obviously, the youth or inexperience of the suspect must also be taken into account.” LaFave, § 5.1(a) at 4 (footnotes omitted).
Several of these factors indicating that an arrest took place are present in this case. Four different detectives were involved in the encounter with Joshua Ladson. There was no evidence that he was experienced with the criminal justice system. (SR.131). Additionally, and significantly, Joshua Ladson was a 16 year old juvenile at the time he was taken to the police station. See B.S. v. State, 548 So.2d at 839-840 (“Of foremost importance is the simple fact that B.S. was a seventeen-year-old juvenile. Youth has often been held almost necessarily to involve a vulnerability to the wishes of adult authority figures like policemen which is the antithesis of an exercise of the child’s free will.... See Schneckloth v. Bustamonte, 412 U.S. at 248, 93 S.Ct. at 2058, 36 L.Ed.2d at 875 (‘The traditional definition of voluntariness we accept today has always taken into account evidence of minimal schooling [and] low intelligence....’) ... Again, the fact that it is a juvenile who is told that adult officers “want” her to come in surely bears negatively on her ability to resist.”); Kaupp v. Texas, 123 S.Ct. at 1847 (17-year-old defendant’s transportation to police station constituted an illegal arrest; “a group of police officers rousing an adolescent out of bed in the middle of the night with the words ‘we need to go and talk’ presents no option but ‘to go.’ ”).
In light of these factors, the consideration of the totality of the circumstances in this case compels the conclusion that Joshua Ladson was involuntarily arrested rather than having voluntarily accompanied the officers to the police station, as a reasonable person in his position would not have believed that he was free to disobey the police officers who took him to the police station for questioning.
This court’s decision in B.S. v. State is illuminating as it involves application of the considerations listed in Lafave to reach the conclusion that a 17-year-old juvenile was involuntarily arrested rather than having voluntarily accompanied police officers to the police station.
On appeal, this court first set forth the “legal parameters” of the issue to be decided:
If B.S. went to the station because she had been the subject of the functional equivalent of an arrest — which was admittedly unjustified — the confession must be suppressed as the tainted product of that improper incarceration .... On the other hand, if she went there on her own accord and without coercion, there was no illegality which would preclude the validity of the confession.
548 So.2d at 839 (citations omitted). This court then noted that determining into which category a particular set of facts falls is a process which must be based on the totality of all the surrounding circumstances, and that the only relevant inquiry is how a reasonable person in the suspect’s position would have understood the situation. This court looked to the considerations listed in § 5.1(a) of LaFave and concluded that B.S. had been involuntarily detained:
1. Of foremost importance is the simple fact that B.S. was a seventeen-year-old juvenile. Youth has often been held almost necessarily to involve a vulnerability to the wishes of adult authority figures like policemen which is the antithesis of an exercise of the child’s free will.... 2 W. La-Fave, Search & Seizure § 5.1(a), at 392 (“Obviously, the youth or inexperience of the suspect must also be taken into account.”)
1. It is admitted that, despite the virtually inherently coercive situation in which B.S. found herself — one in which even an enunciation of the policeman’s wishes might naturally have led her to think they must be obliged — the officers did not disabuse her of this belief by specifically telling the girl that, as was indeed the case, she was not required to accompany them and had every right to refuse. Such a failure is decisive on the side of the conclusion that compliance with police authority — made without specific knowledge of the right to refuse — is not voluntary. As LaFave says:
The consideration most frequently cited in the cases finding consent is that the police specifically advised the suspect that he was not under arrest or that he was free to leave if he wished. Likewise, the cases coming down on the arrest side of the issue often note that such explanation was lacking.... 2 W. LaFave, Search & Seizure § 5.1(a), at 390-91, and cases cited at nn. 23-24 (footnotes omitted). Moreover, the coercive effect of a lack of contrary explanation is emphasized when a child, who might be even less expected to know or act upon his rights, is involved.
⅜ ⅝ ⅝ ⅝ ⅜ ⅜
8. The officers phrased their wish for the appellant to come with them in terms of what they “wanted” her to do. In our judgment, this term, while perhaps not so coercive as an order or demand, is much closer to that end of the continuum than a clearly non-mandatory “request” or invitation. See 2 W. LaFave, Search & Seizure § 5.1(a), at 391, and cases collected at nn. 26-28.
4. Just as significant are the other, perhaps unique, circumstances involved in this case. Faced with the information that the child was home alone with her younger brother, the officers neither waited for her mother to return, nor decided to leave and come back later themselves.... Instead, they waited while the appellant changed from her pajamas and drove her to the police station with her brother in tow. The only impression this series of events could reasonably evoke is that the officers were not going to take no, or even a delayed yes, for an answer and that no opposition to their desires would do any good.
⅝ ⅜ ⅝ ⅜ ⅜{ ijs
In sum, we find that, as a matter of law B.S.’s presence in the police station was not procured through her voluntary consent and the confession which resulted should have been suppressed.
548 So.2d at 889-841.
Three of the four factors which led this court to hold in B.S. that the 17-year-old juvenile did not voluntarily accompany the officers to the police station are present in this case as well. And although this case does not involve the same situation that officers who were faced with information that the child was home alone with her younger brother neither waited for the mother to return nor decided to leave and come back later themselves, but rather drove her to the police station along with her younger brother, this case has the fact that the officers waited until Joshua left his home alone to walk to school. (SR.30-31). Instead of waiting outside of his home to catch him “alone” on his way to school, the officers could have knocked on the door to his home where he lived with his mother and brother.
Independent consideration of all the factors deemed relevant by the courts and the leading treatise on the subject supports the conclusion that Joshua Ladson was involuntarily arrested rather than having voluntarily accompanied the officers to the police station.

Although it seems clear that B.S. presents what is probably an a fortiori situation and thus requires reversal in this case, the majority barely acknowledges its existence. Its reasons for failing to follow it are, with respect, unpersuasive.

It is not enough, as the court says, that the trial judge, as she surely did, conscientiously fulfilled her duty of determining what she sincerely believed to be the correct result. Under our system it is our nondelegable obligation to determine whether that result, however regularly arrived at, was legally right.,

Let’s face facts, the only real difference with B.S. is that it involved a minor (in both senses) theft of money and this one was a homicide (which appellant undoubtedly committed). But there is no serious crime-obvious guilt-indispensible-to conviction exception to the law that evidence secured in violation of the Constitution is not admissible. It is unfortunate that the majority creates and applies that heretofore only mythical doctrine in this case. I believe its determination to do so is very wrong.

      . The lead detective was the only witness who testified during the hearing on the motion to suppress. We report and review the historical facts in the light most favorable to the State. Connor v. State, 803 So.2d 598, 608 (Fla.2001). We review the trial court's application of law to those facts de novo. Id.

      . On cross-examination, the detective testified that he had told Ladson he was free to go, “from the get-go.” The trial court found that such a statement was not made, but also gave that fact no weight in the analysis "as to whether [Ladson] was in custody when he was transported to the police department.”

      . The detective also asked if there was anyone else to contact. Ladson told him that his mother was the only person to contact, and that she was at a doctor’s appointment and would not be accepting calls for a couple of hours.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). The preliminary questions elicited responses from Ladson that he was not under the influence of drugs or alcohol, he had completed tenth grade, he did not have any mental or medical problems, and he had eight hours of sleep the previous night.

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

      . The trial court’s reliance on this and other reasoning in Caldwell was warranted; the Florida Supreme Court later approved that Second District decision (and disapproved a conflicting decision from another district) in Caldwell v. State, 41 So.3d 188 (Fla.2010), discussed in additional detail below.

      . Gonzalez v. State, 59 So.3d 182 (Fla. 4th DCA 2011).

      . The identities of the trial and appellate judges in the individual case are of no moment. The appellate court must prevail because that is the way we operate. In short, as has often been said, we are not last (or at least later) because we are right, we are right because we are last.

      . It also makes no difference that B.S. was only a split decision with a well-reasoned dissent. In this court, even a misguided majority rules.


author: ROTHENBERG, J.

text:
    JADE WINDS ASSOCIATION, INC., Appellant, v. CITIBANK, N.A., and Ramon Escobar, Appellees.
    No. 3D11-275.
    District Court of Appeal of Florida, Third District.
    May 4, 2011.

      Toyne & Mayo, and Ross B. Toyne and Michael Schimmel, Miami, for appellant.
    Gladstone Law Group, P.A., and Andrea Shelowitz, Boca Raton, for appellee Citibank, N.A.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

The appellant, Jade Winds Association, Inc. (“Jade Winds”), a condominium association, appeals from a non-final order issued by the Presiding Judge of the Foreclosure Master Calendar Court Unit (“Foreclosure Master Calendar”), granting Citibank, N.A.’s (“Citibank”) motion to cancel a foreclosure sale. We reverse and remand with directions.

In October 2008, Citibank filed an action to foreclose its first mortgage on a condominium unit owned by Ramon Escobar, naming Escobar and Jade Winds as defendants. Shortly thereafter, Jade Winds filed a cross-claim against Escobar, seeking past due association fees, costs, and attorney’s fees. In April 2009, a default final judgment was entered in favor of Jade Winds, and in August 2009, Jade Winds took title to the property via a Certificate of Title.

In an attempt to move the case forward, on February 23, 2010, Jade Winds filed a Waiver of Public Sale and Motion for Entry of Summary Judgment in Favor of Plaintiff Citibank. On August 19, 2010, a final judgment of foreclosure was entered in favor of Citibank, setting the foreclosure sale for October 8, 2010.

On the morning of the scheduled foreclosure sale, Citibank appeared before the presiding judge of the Foreclosure Master Calendar with an Emergency Motion to Cancel and Reschedule Foreclosure Sale (“Motion to Cancel”), asserting: “Plaintiff has instructed its counsel to cancel this sale in order to determine whether the Defendant qualifies for a loan modification.” (Emphasis added). Obviously, this assertion by Citibank’s counsel was misleading as Jade Winds, not Escobar, held title to the property as of August 2009, and therefore, Citibank would not be attempting to determine if Escobar would qualify for a loan modification. Unfortunately, the irregularities did not end there. The certificate of service in the Motion to Cancel indicates that the motion was mailed to several parties on October 1, 2010, but inexplicably was not mailed to Jade Winds’ counsel of record, who had actively participated in this litigation. As Citibank failed to serve Jade Winds’ counsel and made no attempt to contact counsel to inform him of the Motion to Cancel, it was heard on an ex parte basis. The presiding judge of the Foreclosure Master Calendar entered an order canceling the foreclosure sale and resetting it for January 4, 2011 (“Order Canceling Sale”).

Jade Winds then filed a Motion for Sanctions against Citibank based on Citibank’s handling of the Motion to Cancel. On December 9, 2010, the Motion for Sanctions was heard before Division Judge Lester Langer, a circuit court judge in the division in which the foreclosure action was assigned. On that same day, Judge Lan-ger entered an order imposing monetary sanctions against Citibank, finding that Citibank’s “conduct was in direct violation of [Jade Winds’] due process rights”; the Order Canceling Sale was “void for lack of notice”; and the Motion to Cancel contained “substantive misrepresentations or omissions which prevented the Court from making a proper determination on the merits.” More importantly, the order provides: “The Court further orders that the sale scheduled for January 4, 2011, SHALL NOT be cancelled.”

Less than one month after Judge Lan-ger issued the order imposing sanctions, on December 30, 2010, Citibank prepared a Motion to Cancel the January 4, 2011, foreclosure sale (“Second Motion to Cancel”), requesting that the foreclosure sale be postponed until after February 1, 2011, to enable it to complete its review of “foreclosure documentation.” The Second Motion to Cancel, however, omitted the facts that the foreclosure sale had been previously reset, and that Judge Langer, just a few weeks earlier, had entered an order stating that the foreclosure “sale scheduled for January 4, 2011, SHALL NOT be cancelled.” Further, as with its previous Motion to Cancel, Citibank failed to mail a copy of the Second Motion to Cancel to Jade Winds’ counsel or make any other attempt to notify counsel.

On January 4, 2011, Citibank appeared before Senior Judge Philip Cook, who was the presiding judge at the Foreclosure Master Calendar. On an ex parte basis, Senior Judge Cook considered the Second Motion to Cancel, and he entered an order granting Citibank’s motion to cancel the foreclosure sale due to “affidavit review,” but failed to reset the foreclosure sale for a date after February 1, 2011, as requested by Citibank (“Second Order Canceling Sale”). This non-final appeal follows.

In challenging the Second Order Canceling Sale, Jade Winds contends that its procedural due process rights were violated because Citibank failed to serve Jade Winds’ counsel with the Second Motion to Cancel and failed to notify Jade Winds’ counsel of the hearing. We agree.

A basic element of procedural due process is notice and an opportunity to be heard. Shlishey the Best, Inc. v. CitiFinancial Equity Servs., Inc., 14 So.Sd 1271, 1273 (Fla. 2d DCA 2009); see also Williams v. Primerano, 973 So.2d 645, 647 (Fla. 4th DCA 2008) (“A fundamental requirement of due process is ‘notice reasonably calculated, under all the circumstances, to apprise interested parties ... and afford them an opportunity to present their objections.’”) (quoting Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950)). Further, Florida Rule of Civil Procedure 1.080(a) provides: “Unless the court otherwise orders, every pleading subsequent to the initial pleading and every other paper filed in the action, except applications for witness subpoena, shall be served on each party. ...” (emphasis added). Further, rule 1.080(b) explains that when a party is represented by an attorney, “service shall be made upon the attorney unless service upon the party is ordered by the court.”

In the instant case, without rehashing the facts set forth in this opinion, it is clear that Citibank failed to properly serve Jade Winds’ counsel with the Second Motion to Cancel and failed to notify counsel of the hearing. We recognize that the Second Motion to Cancel was filed on an “emergency” basis, but note that Citibank apparently made no attempt to notify Jade Winds’ counsel of the motion by either delivery, facsimile, email, or phone call, although Jade Winds’ counsel actively participated in this litigation. Further, based on Judge Langer’s previous order imposing sanctions against Citibank, Citibank knew that its actions were inappropriate. As Judge Langer simply found, Citibank’s “conduct was in direct violation of [Jade Winds’] due process rights” and the Order Canceling Sale was “void for lack of notice.” Accordingly, we reverse the order under review and remand with directions to set the foreclosure sale.

Although we do not need to address the sufficiency of the Second Motion to Cancel, we refer Citibank’s counsel to Administrative Memorandum 10-E, which provides that a Motion to Cancel or Reset Sale “must” “[i]nclude a statement of the history of the case: date of final judgment, prior sales dates given, movant and date of prior motions to cancel and reason given for cancellation, dates of prior orders to cancel sale, reason for any incomplete sale, etc.” (emphasis added). A review of Citibank’s Second Motion to Cancel indicates that it did not include the date of the final judgment, the initial foreclosure sale date set forth in the final judgment of foreclosure, or that there had been a prior motion to cancel. Although the administrative order does not specifically state that the plaintiff is required to set forth that sanctions were previously entered based on its handling of a previously filed motion to cancel foreclosure sale, we believe that this would fall under the “etc.” portion of the “history of the case.”

Finally, we note that on February 11, 2010, the Florida Supreme Court adopted Form 1.996(b), Forms for Use with Rules of Civil Procedure, titled “Motion to Cancel and Reschedule Foreclosure Sale.” This form was proposed by the Task Force on Residential Mortgage Foreclosure Cases (“Task Force”). In re Amendments to the Florida Rules of Civil Procedure, 44 So.3d 555, 557-58 (Fla.2010). In proposing Form 1.996(b), the Task Force explained:

Currently, many foreclosure sales set by the final judgment and handled by the clerks of court are the subject of vague last-minute motions to reset sales without giving any specific information as to why the sale is being reset. It is important to know why sales are being reset so as to determine when they can properly be reset, or whether the sales process is being abused.... Again, this is designed at promoting effective case management and keeping properties out of extended limbo between final judgment and sale.

Id. at 558 (emphasis added). Based on Citibank’s actions, this condominium unit has basically been in “extended limbo” since April 2009, which is when the final judgment of foreclosure was entered in favor of Citibank. It is time for this condominium unit to be sold.

Accordingly, we reverse the order under review and remand with directions to set the foreclosure sale. Upon remand, the Division Circuit Court judge and/or the Foreclosure Master Calendar judge are free to impose appropriate sanctions against Citibank and/or its counsel based on the aforementioned conduct.

Reversed and remanded with directions.

      . Jade Winds is a not-for-profit condominium association. According to Jade Winds, the subject unit is just one of more than 100 delinquent units in the association.

      . The "Foreclosure Master Calendar Court Unit” was established on April 20, 2010, through Administrative Memorandum CIV 10-A, which applies to residential foreclosure cases. Pursuant to the Administrative Memorandum, judges in the General Jurisdiction Division ("Division Judges”) will no longer hear certain motions, including emergency motions to cancel sale set within forty-eight hours. Instead, these motions will be heard by the presiding judge of the Foreclosure Master Calendar. Thereafter, Administrative Memorandum CIV 10-B, which took effect on July 26, 2010, expanded the role of the Foreclosure Master Calendar. The presiding judge, not the Division Judge, will hear all motions to cancel foreclosure sale (emergency and regular), in all foreclosure actions. Further, the Administrative Memorandum provides:
      3.Parties must malee every attempt to notice the opposing parties on emergency motions, including borrowers and condominium and homeowner's associations. ...

      6. The Eleventh Judicial Circuit encourages the use of factual detail, precise language, and supporting documentation in the Motions to Cancel Sale presented to its judges. Prior cancellations, including dates and reasons given in the prior motions for cancellation, should also be included in the current motion.

      (Emphasis added). Further, Administrative Memorandum CIV 10-E, with an effective date of December 20, 2010, provides that motions to cancel or reset sale must:
      1. Include a statement of the history of the case: date of final judgment, prior sales dates given, movant and date of prior motions to cancel and reason given for cancellation, dates of prior orders to cancel sale, reason for any incomplete sales, etc.

      3. There will be no reset dates given at time of cancellation on affidavit moratorium or loss mitigation cancellations.
      (Emphasis added).

      . Jade Winds filed a "Petition for Writ of Certiorari and/or Petition for Writ of Mandamus. However, we conclude that our jurisdiction to review this non-final order is pursuant to Florida Rule of Appellate Procedure 9.130(a)(4). See LRSA-JV v. Little House, LLC, 50 So.3d 691, 693 n. 2 (Fla. 5th DCA 2010) (finding that, pursuant to Florida Rule of Appellate Procedure 9.130(a)(4), appellate court has jurisdiction to review non-final, post-judgment order setting foreclosure sale); Commonwealth Mortg. Corp. of Am., L.P. v. Frankhouse, 551 So.2d 599 (Fla. 4th DCA 1989) (reversing post-judgment order postponing foreclosure sale finding an abuse of discretion, and remanding with instructions to schedule judicial sale); see also Drago v. Drago, 895 So.2d 529, 529 (Fla. 4th DCA 2005) (re-designating a petition for writ of certiorari concerning an order modifying visitation rights as reviewable as a non-final order under rule 9.130(a)(3)(C)(iii)). We also recognize that in Republic Federal Bank, N.A. v. Doyle, 19 So.3d 1053, 1055 (Fla. 3d DCA 2009), this Court denied, not dismissed, a petition for writ of certiorari seeking to quash an order continuing a foreclosure sale. In denying the petition for writ of certiorari, this Court stated:

        Although we thus thoroughly disapprove of the order, in view of the fact that the postponed sale is due to take place within a short time of this decision, no useful purpose will be served by formally quashing the order or ordering the sale to take place on an earlier date with all the procedural complications which would then result. For that reason alone, relief will be denied. We do emphasize that there are to be no further postponements of the sale.
      (Emphasis added). Therefore, this Court implicitly determined that it had jurisdiction to review the petition for writ of certiorari. See Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648-49 (Fla. 2d DCA 1995) (discussing distinction between dismissing a petition for writ of certiorari for lack of jurisdiction and denying a petition for writ of certiorari on the merits; explaining that to receive certiorari jurisdiction over a non-final, non-appealable order, petitioner must demonstrate that the order, if not quashed, would result in material injury for the remainder of the trial that cannot be remedied on postjudgment appeal; explaining that “it is still necessary for an appellate court to conduct a jurisdictional analysis prior to testing whether the nonfinal order passes the standard of review on its merits, i.e., whether the order is a 'departure from the essential requirements of law’ ").

      . Failure to reset the foreclosure sale was most likely consistent with Administrative Memorandum CIV 10-E, which provides that a reset date will not be "given at time of cancellation on affidavit moratorium ... cancellations.”

      . The Eleventh Judicial Circuit published a brochure setting forth procedures before the Foreclosure Master Calendar. The brochure provides that motions to cancel sale "must be filed with the Clerk of Courts and opposing counsel notified prior to appearing in court." (emphasis added). http://www.rpptl.org/ Content /PDFs/Circuit_l l_Foreclosure_Mas-ter_Calendar_Information.pdf (last visited Apr. 7, 2011).


text:
    Darrell D. McDUFFIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-661.
    District Court of Appeal of Florida, Fifth District.
    May 6, 2011.
    Rehearing Denied June 20, 2011.
    Darrell D. McDuffie, Lowell, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee. ■
   PER CURIAM.

The Appellant, Darrell D. McDuffie, challenges the denial of his motion to correct illegal sentence, which he filed pursuant to Florida Rule of Criminal Procedure 3.800(a). The trial court denied the 'motion as successive, but its order did not include record attachments showing the motion was, in fact, successive. McDuffie argues this deficiency mandates reversal of the order denying his motion. Ordinarily, we would be inclined to agree. See Romeo v. State, 965 So.2d 197 (Fla. 3d DCA 2007). However, reversal is not warranted in this case because it is clear from the face of the motion that the grounds claimed therein are without merit as a matter of law. There is no requirement that a court make a finding that a habitual felony offender sentence is necessary for the protection of the public before imposing it. See § 775.084(3)(a)6., Fla. Stat. (2000). Therefore, the order denying McDuffie’s rule 3.800(a) motion is affirmed, even though the trial court was remiss in failing to include record attachments to support its conclusion that the motion was successive.

AFFIRMED.

PALMER, ORFINGER and JACOBUS, JJ., concur.


author: EVANDER, J.

text:
    Larry Randall GORDON, Appellant/Cross-Appellee, v. Deborah Denise Robertson GORDON, Appellee/Cross-Appellant.
    Nos. 5D09-3772, 5D09-3773.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    Rehearing Denied June 21, 2011.

      Andrea Black, of Andrea Black, P. A., Orlando, for Appellant/Cross-Appellee.
    Sharon Lee Stedman, Orlando, for Ap-pellee/Cross-Appellant.
   EVANDER, J.

Larry Randall Gordon (“the husband”) and Deborah Denise Robertson Gordon (“the wife”) each appeal from the final judgment dissolving their marriage. We affirm, without discussion, as to the issues raised by the wife on cross-appeal. However, we agree with the husband that the trial court made several errors in determining his support obligations.

The parties were married for twenty years. At the time of trial, their children were ages sixteen and ten. The record reflects that the parties had enjoyed a comfortable standard of living. Their marital home was worth approximately $600,000 and they also owned a condominium valued at $325,000. The parties’ children attended private school and enjoyed numerous extracurricular activities.

The husband earned over $200,000 per year from his employment and also received a military retirement benefit of approximately $55,000 per year. He had served in the military for twenty-four years, but had been married to the wife for only a little more than nine of those years. As a result, notwithstanding the husband’s military service, the wife was not eligible to receive TRICARE health insurance benefits.

The husband’s military service had required him to travel extensively and the parties had agreed that the wife should “stay at home” and take care of the children. (In addition to the parties’ two children, the wife had also cared for the husband’s two children from a prior relationship.) The wife suffered from significant health ailments and her last employment outside the home was in 1995. As a result, the trial court declined to impute income to the wife.

Pursuant to a stipulation, the parties were awarded shared parental responsibility, with the wife being designated the primary residential custodial parent. The final judgment also provided that the children would continue in their private school unless the wife relocated or the parties agreed otherwise. The trial court determined that the wife was entitled to receive 19.07% of the husband’s military retirement pay and equitably distributed the parties’ other assets and liabilities.

The husband’s support obligations were significant. The trial court ordered the husband to pay permanent periodic alimony in the amount of $7,500 per month and to maintain health insurance for the wife “comparable to that coverage presently in existence.” After consideration of the $7,500 per month alimony award and the allocation of a portion of the husband’s military retirement benefit to the wife, the trial court determined the wife’s monthly net income to be $7,067 and the husband’s monthly net income to be $11,273 (or 61.47% of the parties’ total net income). The trial court ordered the husband to pay $1,712 per month child support and to maintain health insurance for the children. Additionally, the husband was required to pay 61.47% of the children’s (1) uncovered medical expenses; (2) private school tuition, registration fees, books, uniforms and extra fees associated with private school; and (3) expenses for extracurricular activities. In order to secure the alimony and child support obligations, the husband was directed to maintain life insurance in the amount of $1,000,000 with the wife being designated as the sole irrevocable beneficiary.

In his first issue on appeal, the husband argues that the trial court abused its discretion by requiring him to provide health insurance for the wife without setting any limitation as to the amount he would have to pay to comply with this requirement. We agree. The record reflects that the husband’s existing insurance does not provide coverage for the wife after their divorce. No evidence was presented as to the availability or cost of alternative coverage. Although the trial court could order the husband to pay a reasonable amount toward the wife’s medical insurance premiums as part of a support award, it was error to require the husband to secure medical coverage without setting an amount or limitation on that obligation. See Guralnick v. Guralnick, 645 So.2d 1097 (Fla. 4th DCA 1994); Ginsburg v. Ginsburg, 610 So.2d 655, 656-57 (Fla. 1st DCA 1992); Szemborski v. Szemborski, 530 So.2d 361 (Fla. 5th DCA 1988); Inglett v. Inglett, 439 So.2d 1389 (Fla. 1st DCA 1983).

We would also observe that if, on remand, the trial court requires the husband to make a contribution to the wife’s health insurance costs, it must take the amount of that contribution into account when determining the parties’ respective net incomes. In the instant case, the trial court’s determination of the parties’ net incomes was the starting point in calculating the husband’s child support obligation and the percentage of the children’s uncovered medical expenses, private school tuition and related expenses, and extracurricular activities that he would be required to pay. In determining what amount, if any, the husband shall contribute toward the wife’s health insurance, the trial court must also consider the criteria of need and ability to pay. Szemborski, 530 So.2d at 362.

We also find error in the trial court’s decision to require the husband to maintain $1,000,000 in life insurance to secure his alimony and child support awards. There was insufficient evidence to support a finding that insurance in excess of the $600,000 life insurance currently maintained by the husband was available or reasonably affordable. While the court may require, in appropriate circumstances, that child support and alimony awards be secured by life insurance on the obligor, there must be evidence in the record and findings by the court as to the cost of the insurance being required in order to establish that the obligor can obtain and afford such insurance coverage. Alpha v. Alpha, 885 So.2d 1023, 1033 (Fla. 5th DCA 2004). Furthermore, as acknowledged by both parties, the trial court erred in failing to allocate the amount of life insurance designated to secure the alimony award vis-a-vis the amount designated to secure the child support award. See McGinley v. McGinley, 678 So.2d 922 (Fla. 1st DCA 1996). Additionally, the life insurance securing the child support award shall be designated as being for the benefit of the children. Layeni v. Layeni, 843 So.2d 295, 300 (Fla. 5th DCA 2003).

The husband also appeals the trial court’s decision to require him to contribute to the children’s private school tuition and related expenses. We find no error. Private educational expenses may be awarded as part of child support when the parents have the ability to pay and such expenses are in accordance with the family’s customary standard of living and are in the child’s best interests. Kaiser v. Harrison, 985 So.2d 1226, 1231 (Fla. 5th DCA 2008). Here, the trial court made the necessary findings and its findings were supported by competent evidence.

Lastly, the husband contends that the trial court abused its discretion in ordering him to contribute to the costs of all the children’s extracurricular activities in accordance with his pro rata share (61.47%) of the parties’ total net income. We construe the provision to apply only to those extracurricular activities that are agreed to by the parties pursuant to shared parental responsibility. Otherwise, each parent would have the ability to impose on the other an unlimited financial obligation to contribute to the costs of a child’s extracurricular activity, even where the other parent did not agree to the child’s participation in such activity.

On remand, the trial court is directed to determine the husband’s support obligations in accordance with this opinion.

AFFIRMED, in part; REVERSED, in part; REMANDED.

PALMER and COHEN, JJ., concur.


author: COHEN, J.

text:
    Vishaul PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-2449.
    District Court of Appeal of Florida, Fifth District.
    May 13, 2011.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Vishaul Paul was convicted of second-degree murder. This was Paul’s second trial; the first ended in a mistrial after a hung jury. The primary evidence against Paul was the testimony of his seventeen-year-old brother-in-law and codefendant, Dhanesh Hardeosingh, who entered a plea to second-degree murder with a negotiated sentence of seventeen and one-half years in the Department of Corrections.

Paul’s wife was having an affair with the victim, -Jaiprakash' “Derek” Mohan. The State’s theory of the case was that Paul, his brother and Hardeosingh sought revenge by beating Mohan. During the beating, Mohan’s throat was slashed and he died. The State presented significant physical evidence tying Hardeosingh to the crime; the only physical evidence implicating Paul or his brother was evidence that a car similar to his brother’s was at a store where Hardeosingh purchased cleaning items to destroy evidence of the crime. Paul’s cell phone records, however, showed he was in contact with Hardeosingh on the night of the murder and a videotape showed Hardeosingh did not act alone. The defense theory was that the murder was a drug deal gone bad involving Har-depsingh and an unknown drug dealer.

Only one issue raised on appeal merits discussion: whether the trial court fundamentally erred in giving the manslaughter by intentional act instruction disapproved of in State v. Montgomery, 39 So.3d 252 (Fla.2010). Fundamental error only occurs when the error reaches down “ ‘into the validity of the trial to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” Reed v. State, 837 So.2d 366, 370 (Fla.2002), quoting State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). Before reaching this issue, we first address the State’s argument that any error was either waived or invited.

During the charge conference, Paul’s attorney, referring to the first trial which resulted in a hung jury, stated: “I think the instructions — it’s on a single charge, so the instructions are rather straightforward. And I think they are the exact same instructions you gave the last time.” In response to the trial judge’s further inquiry whether there was any objection to simply reprinting the same instructions used in the earlier trial, defense counsel stated he had no objection. We do not agree that Paul’s attorney’s statement or his failure to object establishes waiver or invited error. Any discussion of fundamental error presupposes a failure to lodge a contemporaneous objection, a fact underlying the supreme court’s review in Montgomery and this court’s review of Paul’s trial. To the extent Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), holds otherwise, we disagree. See also Reddick v. State, 56 So.3d 132 (Fla. 5th DCA 2011).

Turning to the merits, the jury was instructed on both manslaughter by culpable negligence and by intentional act. As to the latter, the jury was instructed that the State was required to prove two elements: the victim was dead, and the defendant “intentionally caused the death of [the victim].” The supreme court disapproved of this instruction because manslaughter by act “does not require that the State prove that the defendant intended to kill the victim.” Montgomery, 39 So.3d at 255.

In concluding that giving the erroneous instruction was fundamental error, the supreme court was concerned with potential juror confusion as to the differences between murder in the first degree, murder in the second degree and manslaughter by act. The supreme court stated:

Although in some cases of manslaughter by act it may be inferred from the facts that the defendant intended to kill the victim, to impose such a requirement on a finding of manslaughter by act would blur the distinction between first-degree murder and manslaughter. Moreover, it would impose a more stringent finding of intent upon manslaughter than upon second-degree murder, which, like manslaughter, does not require proof that the defendant intended to kill the victim. Thus, we conclude that under Florida law, the crime of manslaughter by act does not require proof that the defendant intended to kill the victim.

Id. at 256.

This concern is not implicated in this case because the jury was also instructed on manslaughter by culpable negligence. Specifically, the jury was instructed as follows:

I will now define “culpable negligence” for you. Each of us has a duty to act reasonably toward others. If there is a violation of that duty, without any conscious intention to harm, that violation is negligence. But culpable negligence is more than a failure to use ordinary care toward others. In order for negligence to be culpable, it must be gross and flagrant. Culpable negligence is a course of conduct showing reckless disregard of human life, or of the safety of persons exposed to its dangerous effects, or such an entire want of care as to raise a presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or such an indifference to the rights of others as is equivalent to an intentional violation of such rights.
The negligent act or omission must have been committed with an utter disregard for the safety of others. Culpable negligence is consciously doing an act or following a course of conduct that the defendant must have known, or reasonably should have known, was likely to cause death or great bodily injury.

We align ourselves with the First, Second, and Fourth Districts in holding that giving the manslaughter by culpable negligence instruction distinguishes Montgomery and addresses the primary concern which led to a determination that the giving of the manslaughter by act instruction constituted fundamental error. See Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010); Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010); Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010); and Nieves v. State, 22 So.3d 691 (Fla. 2d DCA 2009). AFFIRMED.

GRIFFIN and SAWAYA, JJ., concur.

      . The decision in State v. Montgomery, 39 So.3d 252 (Fla.2010), was issued approximately two weeks before the trial in the instant case began. Neither the State nor the defense cited Montgomery to the trial court.

      . We note that Paul’s defense was not his state of mind or intent. Rather, he raised an alibi defense claiming to have been home in south Florida at the time of the commission of the crime.

      . This court would also note that the supreme court approved an amendment to the standard jury instruction clarifying that, "in order to convict of manslaughter by intentional act, it is not necessary for the state to prove that the defendant had a premeditated intent to cause death, only an intent to commit an act which caused death.” Montgomery, 39 So.3d at 257. The amendment was published in 2008, well before Paul's trial. See In re: Standard Jury Instructions in Criminal Cases, 997 So.2d 403 (Fla.2008).


text:
    V.C., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-350.
    District Court of Appeal of Florida, Third District.
    May 18, 2011.

      Carlos J. Martinez, Public Defender, and Michael T. Davis, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

V.C. appeals an order withholding adjudication of delinquency and placing her on one year probation for felony battery. Because felony battery is not a category one, necessarily lesser included offense of aggravated battery with a deadly weapon, and the charging document failed to allege the requisite elements of felony battery, we reverse.

The State filed a petition for delinquency alleging that V.C. committed an aggravated battery by using a deadly weapon pursuant to section 784.045(l)(a)(2), Florida Statutes (2009). Prior to trial, V.C.’s attorney moved to suppress V.C.’s statements to law enforcement. The motion was denied and the trial court conducted an adjudicatory hearing. The evidence introduced at the adjudicatory hearing was that V.C. became involved in a fight with another girl, which escalated into a melee involving approximately fourteen other girls, and in the process V.C. cut the victim with a razor blade. At the conclusion of the hearing, the trial court concluded that the evidence was insufficient to find that V.C. had committed an aggravated battery, the charged offense, but did support a felony battery adjudication under section 784.041, a lesser included offense of aggravated battery. See § 784.041, Fla. Stat. (2009).

V.C. contends that the trial court erred in restricting the testimony of her expert witness, Dr. Klein, regarding the volun-tariness of her pretrial statements; allowing the State to introduce her pretrial statements at the adjudicatory hearing; and finding her guilty of the uncharged crime of felony battery.

We briefly address V.C.’s first two arguments. Section 90.704, Florida Statutes (2009), provides that an expert may base his or her opinion on facts made known to him or her at or before trial. And although the statute specifically authorizes opinions based on evidence the expert did not personally observe, see Dor bad v. State, 12 So.Sd 255, 257 (Fla. 1st DCA 2009), such testimony “should be excluded when the facts testified to are of such nature as not to require any special knowledge or experience in order for the jury to form its conclusions.” Id. at 258 (quoting Boyer v. State, 825 So.2d 418, 419-20 (Fla. 1st DCA 2002)).

In determining whether the trial court erred in limiting Dr. Klein’s testimony, we note that the abuse of discretion standard applies to rulings regarding the admissibility of expert testimony. Rodriguez v. State, 413 So.2d 1303, 1304 (Fla. 3d DCA 1982). The record reflects that Dr. Klein was permitted to testify at length about: the results of the tests she administered to V.C.; her interview of V.C.; and her assessment of V.C.’s intellect. Further, Dr. Klein was permitted to opine as to whether she believed V.C. knowingly, intelligently, and voluntarily waived her rights prior to being interrogated by law enforcement. Because the additional testimony she may have provided was not of such a nature as to require special knowledge or experience, especially where the issues were tried before the judge rather than a jury, we do not find the trial court abused its discretion in limiting the scope of the testimony. We also conclude that there was competent substantial evidence to support the trial court’s finding that, based on the totality of the circumstances, V.C. knowingly, intelligently, and voluntarily waived her rights per Miranda pri- or to agreeing to provide her oral and written statements to the police.

Although we conclude that V.C.’s statements were properly admitted at trial and the trial court did not abuse its discretion in limiting Dr. Klein’s testimony, we agree with V.C. that the trial court erred in withholding adjudication of delinquency as the offense of felony battery as a lesser included offense of aggravated battery.

Instruction 8.4 of the Florida Standard Criminal Jury Instructions, as summarized below, provides that to prove the crime of aggravated battery, the State must prove the following two elements beyond a reasonable doubt. The first element is a definition of battery.

1. The defendant
a. intentionally touched or struck the victim against his/her will, or
b. intentionally caused bodily harm to the victim.
2. The defendant in committing the battery
a. intentionally or knowingly caused permanent disability or permanent disfigurement to the victim, or
b. used a deadly weapon

The petition for delinquency charged V.C. with committing an aggravated battery upon the victim “by actually and intentionally striking and/or cutting [the victim] about the back and/or body, with a deadly weapon, to wit: a razor blade and, or any sharp object,” which is the form of aggravated battery listed in 2b of instruction 8.4 of the standard jury instruction for aggravated battery. Felony battery is a lesser offense of aggravated battery. See Fla. Std. Jury Instr. (Crim.) 8.4.

Category one necessarily included lesser offenses are treated differently than category two permissive lesser included offenses. Category one lesser offenses are necessarily included in the offense charged and only require proof to support a conviction for the lesser included offense. In contrast, category two lesser included offenses require, in addition to sufficient proof to support a conviction of the lesser included offense, that the accusatory pleading allege the necessary elements of the lesser included offense. I.T. v. State, 694 So.2d 720, 723-24 (Fla.1997); see also J.O. v. State, 42 So.3d 803, 804 (Fla. 3d DCA 2010) (“A conviction based upon a category two lesser-included offense is sustainable over a proper objection only if: (1) the charging document includes all of the elements of the lesser; and (2) the evidence admitted would support a conviction on the lesser.”) (footnote omitted); Lester v. State, 25 So.3d 623, 625 (Fla. 3d DCA 2009) (affirming Lester’s conviction for aggravated battery, a permissive lesser included offense of second-degree murder, because the information sufficiently alleged the elements of aggravated battery and the evidence supported the uncharged crime).

Although instruction 8.4 of the Florida Standard Criminal Jury Instructions provides that felony battery is a category one lesser included offense of aggravated battery, which would normally only require sufficient evidence at trial to support a conviction of the uncharged lesser offense, in the commentary that follows, albeit in fine print, it specifies that “[t]he lesser included offense of Felony Battery is only applicable if element 2a [permanent disability or permanent disfigurement] is charged and proved.” (emphasis added). Because 2b (with a deadly weapon) was charged, not 2a (permanent disability or permanent disfigurement), V.C. could not be adjudicated delinquent as to the uncharged felony battery as a lesser included offense of the charged offense of aggravated battery.

This finding, however, does not end our analysis, as the State contends that because V.C. failed to object to the trial court’s pronouncement, the error was not properly preserved for appellate review. As the State correctly argues, the contemporaneous objection rule requires that absent an objection at trial, the alleged error can be raised on appeal only if fundamental error has occurred. See State v. Delva, 575 So.2d 643, 644-45 (Fla.1991). For error to be so fundamental that it may result in a reversal on appeal, though not properly preserved below, it must amount to a denial of due process. Ray v. State, 403 So.2d 956, 960 (Fla.1981).

Instructing a jury or convicting a defendant on an erroneous lesser offense does not necessarily constitute fundamental error. Ray, 403 So.2d at 960. In Ray, the Florida Supreme Court found:

[I]t is not fundamental error to convict a defendant under an erroneous lesser included charge when he had an opportunity to object to the charge and failed to do so if: 1) the improperly charged offense is lesser in degree and penalty than the main offense or 2) defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.

Id. at 961 (footnote omitted). Although felony battery is an offense that is lesser in degree and penalty than aggravated battery, because we conclude that V.C. did not have an opportunity to object to the trial court’s consideration of felony battery as a lesser included offense or to the trial court’s pronouncement adjudicating her delinquent of felony battery, and defense counsel did not request consideration of or argue the uncharged crime, we find no waiver by V.C. and that fundamental error occurred.

V.C.’s trial counsel did not have an opportunity to object to the trial court’s finding because, as this was a juvenile proceeding and the case was tried to the court rather than to a jury, no jury instructions were prepared. Additionally, the record reflects that V.C. did not request that the trial court consider any lesser included offenses, neither side argued that the evidence supported a finding that V.C. committed a felony battery, and V.C. took no action that in any way invited the error. Thus, under Ray, fundamental error occurred. See also Williamson v. State, 510 So.2d 335, 337-38 (Fla. 4th DCA 1987), disapproved on other grounds, State v. Sanborn, 533 So.2d 1169 (Fla.1988) (rejecting the State’s argument that the defendant failed to preserve his objection to the lesser included offense where the case was tried non-jury, defense counsel was not presented with a jury charge to object to, and defense counsel did not invite the error).

In conclusion, we find fundamental error and reverse the judgment withholding an adjudication of delinquency as to the lesser included offense of felony battery because: (1) felony battery is a category two permissive lesser included offense of aggravated battery; (2) the accusatory pleading does not plead the requisite elements of felony battery; (3) this was a non-jury trial where defense counsel had no notice based on the charging document, argument by opposing counsel, or comment by the trial court, that V.C. could be subjected to a finding that she committed the uncharged crime of felony battery; and (4) neither V.C. nor defense counsel invited the error.

We therefore instruct the trial court to vacate the delinquency finding as to felony battery and to enter a withhold of adjudication of delinquency as to the necessarily included lesser offense of simple battery. See § 924.34, Fla. Stat. (2010) (“When the appellate court determines that the evidence does not prove the offense for which the defendant was found guilty but does establish guilt of a lesser statutory degree of the offense or a lesser offense necessarily included in the offense charged, the appellate court shall reverse the judgment and direct the trial court to enter judgment for the lesser degree of the offense or for the lesser included offense.”); see also Gould v. State, 577 So.2d 1302, 1305 (Fla.1991) (“quashfing] that part of the district court decision directing the trial court to adjudicate Gould guilty” of sexual battery, and “remand[ing] with instructions that district court instruct the trial court to adjudicate Gould guilty of simple battery, as the only necessarily included lesser offense supported by the evidence”) (footnote omitted). We note that V.C.’s appellate counsel properly conceded that this Court had the authority to vacate V.C.’s withhold of adjudication of delinquency as to aggravated battery and to direct the trial court to enter a withhold of adjudication of delinquency as to simple battery.

We specifically recommend that the Criminal Jury Instruction Committee submit a modification to jury instruction 8.4 to clearly reflect that felony battery is only a lesser included offense to aggravated battery if the charging document charges that the defendant, in committing the battery, intentionally caused permanent disability or permanent disfigurement as charged in section 784.045(2)(a), because the instruction, as written, is misleading.

Affirmed in part; reversed in part; and remanded with directions.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).