author: PER CURIAM. MAIN, Judge,

text:
    Jerry Wade RICH v. STATE of Alabama.
    CR-08-1078.
    Court of Criminal Appeals of Alabama.
    Dec. 18, 2009.
    Rehearing Denied Feb. 19, 2010.
    Certiorari Denied May 14, 2010 Alabama Supreme Court 1090743.

      R. Lance Bell, Jr., Birmingham, for appellant.
    Troy King, atty. gen., and Ferris Stephens, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Jerry Wade Rich, was convicted of receiving stolen property in the second degree, a violation of § 13A-8-18, Ala.Code 1975. He was sentenced to 10 years’ imprisonment; that sentence was split, and he was ordered to serve one year followed by two years on probation. This appeal followed.

The State’s evidence tended to show the following. In October 2007, Rick Freese, a loss prevention investigator -with Target Corporation, met with members of the Trussville Police Department to discuss conducting a sting operation at Jim’s Pawn Shop in Trussville. Target agreed to furnish merchandise to the police who would, in turn, attempt to pawn that merchandise at Jim’s Pawn Shop. In October 2007, Scott Salser, an undercover officer with the Birmingham Police Department, sold three iPods that he represented had been stolen, to Rich, an employee of Jim’s Pawn Shop. Rich confessed to Detective Todd Posey of the Trussville Police Department that he had falsely recorded the serial numbers on two of the iPods and that the pawnshop often received stolen property.

Rich argues that the evidence was insufficient to sustain his conviction for receiving stolen property because, he argues, the State failed to prove that the property was “stolen.” He relies on the Alabama Supreme Court’s decisions in Ex parte Walls, 711 So.2d 490 (Ala.1997), and Farzley v. State, 281 Ala. 60, 163 So. 394 (1935).

In 1997, the Alabama Supreme Court in Ex parte Walls, addressed whether the statute making it a criminal offense to receive stolen property would apply had the property never been stolen or had it been recovered from police and lost its “stolen status.” The Supreme Court stated:

“It is undisputed that eight of the radios supplied to the police by Baker and later purchased by Walls had never been stolen. Therefore, under Farzley [v. State, 281 Ala. 60, 163 So. 394 (1935) ], they cannot be the subject of the offense of receiving stolen property. ‘[I]f as a matter of fact [the goods] had not been stolen, there could be no conviction, no matter how strong the evidence tending to show that a defendant had reasonable grounds for believing they were stolen.’ Smitherman v. State, 340 So.2d 896, 900 (Ala.Cr.App.1976), interpreting Farzley. In other words, a defendant may possess the requisite guilty mind, but if the property is not actually stolen property, then a circumstance that is unknown to him prevents him from committing the completed act prohibited by statute, i.e., the offense of receiving stolen property.
“The state nonetheless urges that we should allow a conviction for receiving stolen property under § 13A-8-16 whenever a defendant has reasonable grounds to believe that property received has been stolen, without respect to whether the property received had been stolen in fact. The state refers us to cases from other jurisdictions in which courts have held that a defendant may be criminally liable for receiving, notwithstanding that the property received was not in fact stolen property. See State v. Bujan, 274 N.J.Super. 132, 643 A.2d 628 (App.Div.1994); State v. Sweeney, 701 S.W.2d 420 (Mo.1985); State v. Pappas, 705 P.2d 1169 (Utah 1985). These cases demonstrate that some states have eliminated from them statutory ‘receiving’ offense the requirement that the property received have been stolen in fact. While our legislature could similarly eliminate this requirement as an element of the completed ‘receiving’ offense in this state, we conclude that to adopt such an interpretation of § 13A-8-16, as that section presently reads, would be directly contrary to the statutory language.
“As noted previously, § 13A-8-16(a) states that ‘[a] person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen.’ (Emphasis added.) Thus, the state would have us read out of the statute the express requirement that the property received, retained, or disposed of by the defendant have been stolen. This we decline to do.
“ ‘ “A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“ ‘ “One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, [257 Ala. 502, 60 So.2d 202 (1952),] citing Young’s Case, 58 Ala. 358 (1877).” ’
“Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (emphasis omitted).”

711 So.2d at 494. The Supreme Court relied on Farzley to reach its decision in Walls.

The State argues that the Alabama Supreme Court’s decision in Walls is no longer good law because, it asserts, the theft statute'was amended after Walls was released. It contends that § 13A-8-2(3), which was added to the theft statute in 2003, enables law enforcement to carry out sting operations such as one in this case and broadened the definition of theft in the receiving-stolen-property statute.

Rich was indicted for receiving stolen property in the second degree. The indictment reads as follows:

“JERRY WADE RICH, whose name is to the grand jury otherwise unknown, did, intentionally receive, retain, or dispose of stolen property, to-wit: one Ipod of the value of $249.99; one Ipod of the value of $199.99 and one Ipod of the value of $59.98, the property of CITY OF TRUSSVILLE POLICE DEPARTMENT, A MUNICIPAL CORPORATION knowing that it was stolen or having reasonable grounds to believe it had been stolen and not having the intent to restore it to its owner, in violation of Section 13A-8-18 of the Alabama Criminal Code, against the peace and dignity of the State of Alabama.”

(C. 16) (capitalization original).

Section 13A-8-16, Ala.Code 1975, defines the crime of receiving stolen property:

“(a) A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

Section 13A-8-18(a)(l), Ala.Code 1975, defines receiving stolen property in the second degree as receiving stolen property that exceeds “five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value.” “Stolen” is defined in § 13A-8-l(12), Ala. Code. 1975, as: “[ojbtained by theft, theft by appropriating lost property, robbery, or extortion.”

When examining the relevant statutes, we must keep in mind the following principles of statutory construction:

“ ‘ “[I]t is well established that criminal statutes should not be ‘extended by construction.’ ” ’ Ex parte Mutrie, 658 So.2d 347, 349 (Ala.1993) (quoting Ex parte Evers, 434 So.2d 813, 817 (Ala.1983), quoting in turn Locklear v. State, 50 Ala.App. 679, 282 So.2d 116 (1973)).
“ ‘A basic rule of review in criminal cases is that criminal statutes are to be strictly construed in favor of those persons sought to be subjected to their operation, i.e., defendants. Schenher v. State, 38 Ala.App. 573, 90 So.2d 234, cert. denied, 265 Ala. 700, 90 So.2d 238 (1956).
“ ‘Penal statutes are to reach no further in meaning than their words. Fuller v. State, 257 Ala. 502, 60 So.2d 202 (1952).
“ ‘One who commits an act which does not come within the words of a criminal statute, according to the general and popular understanding of those words, when they are not used technically, is not to be punished thereunder, merely because the act may contravene the policy of the statute. Fuller v. State, supra, citing [Young v. State ], 58 Ala. 358 (1877).
“ ‘No person is to be made subject to penal statutes by implication and all doubts concerning their interpretation are to predominate in favor of the accused. Fuller v. State, supra.’
“Clements v. State, 370 So.2d 723, 725 (Ala.1979) (quoted in whole or in part in Ex parte Murry, 455 So.2d 72, 76 (Ala.1984), and in Ex parte Walls, 711 So.2d 490, 494 (Ala.1997)) (emphasis added).
“ ‘ “Statutes creating crimes are to be strictly construed in favor of the accused; they may not be held to apply to cases not covered by the words used .... ” United States v. Resnick, 299 U.S. 207, 209, 57 S.Ct. 126, 127, 81 L.Ed. 127 (1936). See also, Ex parte Evers, 434 So.2d 813, 816 (Ala.1983); Fuller v. State, 257 Ala. 502, 60 So.2d 202, 205 (1952).’
“Ex parte Jackson, 614 So.2d 405, 406 (Ala.1993) (emphasis added). ‘[T]he fundamental rule [is] that criminal statutes are construed strictly against the State. See Ex parte Jackson, 614 So.2d 405 (Ala.1993).’ Ex parte Hyde, 778 So.2d 237, 239 n. 2 (Ala.2000) (emphasis added). The ‘rule of lenity requires that “ambiguous criminal statute[s] ... be construed in favor of the accused.” ’ Castillo v. United States, 530 U.S. 120, 131, 120 S.Ct. 2090, 147 L.Ed.2d 94 (2000) (paraphrasing Staples v. United States, 511 U.S. 600, 619 n. 17, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)).”

Ex parte Bertram, 884 So.2d 889, 891-92 (Ala.2003).

“ ‘Moreover, “one ‘is not to be subjected to a penalty unless the words of the statute plainly impose it,’ Keppel v. Tiffin Savings Bank, 197 U.S. 356, 362, 25 S.Ct. 443, 49 L.Ed. 790 [ (1905) ]. ‘[W]hen choice has to be made between two readings of what conduct Congress has made a crime, it is appropriate, before we choose the harsher alternative, to require that Congress should have spoken in language that is clear and definite.’ United States v. Universal C.I.T. Credit Corp., 344 U.S. 218, 221-222, 73 S.Ct. 227, 229-230, 97 L.Ed. 260 [ (1952) ].” United States v. Campos-Serrano, 404 U.S. 293, 297, 92 S.Ct. 471, 474, 30 L.Ed.2d 457 (1971).’
“[United States v.] Bridges, 493 F.2d [918] at 923 [ (5th Cir.1974) ].
“‘Words used in the statute must be given their natural, plain, ordinary, and commonly understood meaning.’ Alabama Farm Bureau Mut. Casualty Ins. Co. v. City of Hartselle, 460 So.2d 1219, 1223 (Ala.1984). The general rule of construction for the provisions of the Alabama Criminal Code is found in Ala. Code 1975, § 13A-1-6: ‘All provisions of this title shall be construed according to the fair import of their terms to promote justice and to effect the objects of the law, including the purposes stated in section 13A-1-3.’ Among the purposes stated in § 13A-1-4 is that found in subsection (2): ‘To give fair warning of the nature of the conduct proscribed.’ ”

Carroll v. State, 599 So.2d 1253, 1265 (Ala.Crim.App.1992).

The legislature has amended the theft statute to add § 13A-8-2(3), Ala.Code 1975, which provides that a person commits the crime of theft of property if he or she:

“(3) Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen.”

However, this same provision was not added to the reeeiving-stolen-property statute or to the general definition of “stolen” in § 13A-8-l(12), Ala.Code 1975. Had the legislature intended to broaden the definition of stolen property for purposes of the reeeiving-stolen-property statute it could have easily amended § 13A-8-l(12), Ala. Code 1975, or § 13A-8-16, Ala.Code 1975; it did not. It appears that in adding subsection (3) to § 13A-8-2, Ala.Code 1975, the legislature provided harsher penalties for those who receive stolen property as a result of a sting operation and enabled the State to prosecute those offenders for the greater offense of theft.

Moreover, the statutes at issue in Walls, § 13A-8-16 and § 13A-8-l(12), Ala.Code 1975, are the same ones involved in this case, and they have not been amended since the Supreme Court’s decision in Walls. The Supreme Court, in reaching its decision in Walls, did not rely on or even cite the definition of “theft” codified in § 13A-8-2, Ala.Code 1975, but instead relied on the strict wording of the receiving-stolen-property statute. The law requires that we strictly construe the relevant statutes. Walls is still binding on this Court, unless and until the legislature amends the receiving-stolen-property statute. We have no alternative but to hold that because the property was not “stolen,” Rich could not be convicted of receiving stolen property. See Walls. Accordingly, Rich’s conviction for receiving stolen property in the second degree must be reversed and a judgment rendered in his favor.

REVERSED AND JUDGMENT RENDERED.

WISE, P.J., and WELCH, WINDOM, and KELLUM, JJ., concur.

MAIN, J., dissents, with opinion.

MAIN, Judge,

dissenting.

I respectfully dissent from the per cu-riam opinion reversing Jerry Wade Rich’s conviction for second-degree receiving stolen property and rendering a judgment in his favor.

Rich was charged by indictment with second-degree receiving stolen property, a violation of § 13A-8-18, Ala.Code 1975. The per curiam opinion has set out the applicable principles regarding statutory construction, and my analysis is in accordance with those principles. As the per curiam opinion also sets out, receiving stolen property is defined as:

“A person commits the crime of receiving stolen property if he intentionally receives, retains or disposes of stolen property knowing that it has been stolen or having reasonable grounds to believe it has been stolen, unless the property is received, retained or disposed of with intent to restore it to the owner.”

§ 13A-8-16(a), Ala.Code 1975. A person commits the crime of second-degree receiving stolen property, a Class C felony, when the stolen property “exceeds five hundred dollars ($500) in value but does not exceed two thousand five hundred dollars ($2,500) in value .... ” § 13A-8-18(a)(1), Ala.Code 1975. The General Definitions to Chapter 8 — Offenses Involving Theft — which are applicable in this case, defines “stolen” as: “[ojbtained by theft, theft by appropriating lost property, robbery, or extortion.” § 13A-8-l(12), Ala. Code 1975. Theft is not one of the terms defined in the general definitions section of Chapter 8 — Offenses Involving Theft. However, the Commentary to § 13A-8-16, Ala.Code 1975, cross-references § 13A-8-1, Ala.Code 1975, specifically, the definitions for “property,” “receiving,” and “stolen.” The Commentary also cross-references § 13A-8-2, Ala.Code 1975, “theft of property.” Additionally, the Commentary to § 13A-8-16 states that: “ ‘[sjtolen’ means ‘obtained by theft.’ ” and references “Section 13A-8-l(12).” Theft is defined in § 13A-8-2, in pertinent part, as:

“A person commits the crime of theft of property if he or she:
“(3) Knowingly obtains or exerts control over property in the custody of a law enforcement agency which was explicitly represented to the person by an agent of the law enforcement agency as being stolen,.... ”

The “History” to § 13A-8-2, Ala.Code 1975, provides that the legislature added subdivision (3) by amendment in 2003. Thus, in my opinion, the three iPods were “stolen” because they were in the custody of the Trussville Police Department; Detective Posey, an agent of the Trussville Police Department, represented to Rich that they were in fact stolen; and Rich obtained the property for Jim’s Pawn Shop. Therefore, I would affirm Rich’s conviction. Therefore, I dissent.

      . An iPod is a portable media player manu-factored and sold by Apple, Inc.


source: Caselaw Access Project

author: LABARGA, J.

license: Public Domain

text:
    STRAX REJUVENATION AND AESTHETICS INSTITUTE, INC., Petitioner, v. Donna SHIELD, et al., Respondents.
    No. SC10-57.
    Supreme Court of Florida.
    Sept. 30, 2010.
    Dinah Stein of Hicks, Porter, Ebenfeld and Stein, P.A., Miami, FL, and Monica Luann Pierce of Chimpoulis and Hunter, P.A., Davie, FL, for Petitioner.
    Susan S. Lerner of Russo ■ Appellate Firm, P.A., Miami, FL, and Michael S. Cohen, P.A., Coral Gables, FL; and Richard T. Woulfe of Bunnell and Woulfe, P.A., Fort Lauderdale, for Respondents.
    Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando, FL, and Nicholas A. Shannin of Page, Eichenblatt, Bernbaum, and Bennett, P.A., Orlando, FL, for the Orange County Bar Association Appellate Practice Committee, for Amicus Curiae.
   LABARGA, J.

This case is before the Court for review of the ' decision of the Fourth District Court of Appeal in Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 24 So.3d 666 (Fla. 4th DCA 2009). The district court certified that its decision is in direct conflict with the decision of the Third District Court of Appeal in Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. As explained below, we approve of the decision of the Third District Court of Appeal in Weintraub and, accordingly, quash the decision of the Fourth District Court of Appeal in Strax.

FACTS AND PROCEDURAL HISTORY

The conflict issue in this case involves the question of the timely filing of a notice of appeal. Strax filed its notice of nonfinal appeal from the trial court’s order denying a motion to dismiss and to compel arbitration. Because the clerk’s time stamp indicated that the notice of appeal was filed August 21, 2009, which was one day late, the Fourth District issued an order to Strax to show cause why the appeal should not be dismissed. Strax responded to the show cause order and filed two affidavits, one from Strax’s counsel and one from the owner of the courier service that delivered the notice to the courthouse for filing with the clerk of the circuit court. In the affidavit, Strax’s counsel attests that on August 18, 2009, she placed the notice of appeal in her firm’s “Broward County” filing box to be picked up by a courier service and filed in the Broward County courthouse on August 19, 2009. The owner of the courier service states in his affidavit that he picked up the notice of appeal from the law firm on August 19, 2009, and delivered it to the Broward County Clerk of Courts on that same day.

The Fourth District Court of Appeal concluded, however, that pursuant to Florida Rule of Civil Procedure 1.080(e), the clerk’s time stamp “is dispositive on the issue of the date of filing a paper with the trial court.” Strax, 24 So.3d at 669. Because the time stamp in the present case was dated after the expiration of the jurisdictional time limit, the district court dismissed the appeal but certified conflict with Weintraub. In Weintraub, the Third District held that the filing date “is presumptively shown by the filing date which the clerk of the trial court stamps on the face of the notice — although this is not a conclusive showing and may be rebutted by other evidence.” Weintraub, 482 So.2d at 457. Thus, the issue presented here is whether under rule 1.080(e) the clerk’s time stamp that appears on the face of the notice or paper filed in the court is disposi-tive of the filing date under a bright-line reading of rule 1.080(e), or whether the clerk’s time stamp is presumptive only and may be rebutted by other evidence demonstrating that the notice of appeal was timely filed. As explained below, we agree with the holding of the Third District in Weintraub that the clerk’s time stamp is presumptive evidence of the date of filing, but that the presumption may be overcome by sufficient evidence that the document was actually received by the clerk within the time deadline.

ANALYSIS

Standard of Review

Because the conflict issue in this case involves the proper interpretation of Florida Rule of Civil Procedure 1.080(e), we turn first to the standard of review for interpretation of rules of procedure. Appellate courts apply a de novo standard of review when the construction of a procedural rule is at issue. Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598, 599 (Fla.2006). Specifically as to construction of the Court’s procedural rules, we have previously explained that “[t]he general guide to construction of the procedural rules is set forth in Florida Rule of Civil Procedure 1.010, which states that the rules ‘shall be construed to secure the just, speedy, and inexpensive determination of every action.’ ” Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1123 (Fla.2008) (quoting Fla. R. Civ. P. 1.010); see also Singletary v. State, 322 So.2d 551, 555 (Fla.1975) (“Procedural rules should be given a construction calculated to further justice, not to frustrate it”).

Therefore, resolution of the conflict issue in this case requires us to determine the meaning of this Court’s 1984 amendment of Florida Rule of Civil Procedure 1.080(e). In doing so, we consider the purpose of the rule and the stated intent that the rules of civil procedure be construed in a manner leading to a just determination of a cause. We reiterate that the rules should be interpreted to further justice and not frustrate it. With these considerations in mind, we turn to examination of the rule at issue in this case.

Discussion

Florida Rule of Civil Procedure 1.080(e) was amended in 1984 as follows:

(e) Filing with the Court Defined. The filing of papers with the court as required by these rules shall be made by filing them with the clerk, except that the judge may permit the papers to be filed with him, in which event he shall note thereon-the filing date before him on the papers and transmit them to the clerk. The date of filing is that shown on the face of the paper by the judge’s notation or the clerk’s time stamp, whichever is earlier.

In re Amendments to Rules of Civil Procedure, 458 So.2d 245, 247 (Fla.1984). The Fourth District interpreted the underlined language added in 1984 referring to the clerk’s time stamp as creating a bright-line rule that the clerk’s time stamp is disposi-tive of the date of filing. We find that this interpretation is incorrect.

The amendment was not intended to depart from longstanding case law holding that filing is accomplished by actual receipt of the document by the clerk. For many years the accepted view has been that filing is accomplished by simply placing the document in the hands of the proper officer. In 1941, we held that the filing of a pleading consists of simply placing it in the hands of the proper officer to be filed, and that the file marking is merely evidence of filing but is not essential to the validity of the document. See Bituminous Casualty Corp. v. Clements, 148 Fla. 175, 3 So.2d 865, 866 (1941). Most of the district courts have reached the same holding. See, e.g., Raysor v. Raysor, 706 So.2d 400, 401 (Fla. 1st DCA 1998) (“Generally, a paper is deemed to be ‘filed’ when it is delivered to the proper official and received by that official to be kept on file.”); Weintraub v. Alter, 482 So.2d 454, 457 (Fla. 3d DCA 1986) (“A notice of appeal is generally deemed filed on the date it is actually filed with the clerk of the trial court. This date is presumptively shown by the filing date which the clerk of the trial court stamps on the face of the notice — although this is not a conclusive showing and may be rebutted by other evidence.”); Cook v. Walgreen Co., 399 So.2d 523, 524 (Fla. 2d DCA 1981) (stating that a document is deemed filed when delivered to the proper officer, and where proper evidence shows the clerk received the pleading on the date other than that stamped, a factual issue is presented). Black’s Law Dictionary also defines “filing date” generally as being “the date when any document is delivered to the appropriate authority.” Black’s Law Dictionary 423 (8th ed.2004).

We conclude that the intent of rule 1.080(e), as amended in 1984, is to create a rebuttable presumption that the filing date is the date shown by the clerk’s time stamp placed on the face of the document. Any other interpretation flies in the face of the stated intent for construction of the procedural rules. As noted earlier, the general guide to construction of the procedural rules set forth in Florida Rule of Civil Procedure 1.010 provides that the rules “shall be construed to secure the just, speedy, and inexpensive determination of every action.” Fla. R. Civ. P. 1.010. While a bright-line rule that the clerk’s stamp is dispositive of the filing date will certainly secure a speedy and inexpensive determination of the action, it will not necessarily secure a just determination. In those rare cases in which a paper is delivered to the clerk’s office within the jurisdictional time frame, but for some reason — through inadvertence or error — is not timely stamped by the clerk, the litigant will be denied a just determination of the action if the litigant is precluded from presenting competent, substantial evidence to prove that the deadline was met. We stated long ago that “[wjhile our procedural rules provide for an orderly and expeditious administration of justice, we must take care to administer them in a manner conducive to the ends of justice.” Rogers v. First Nat’l Bank at Winter Park, 232 So.2d 377, 378 (Fla.1970).

Accordingly, we agree with the Third District Court of Appeal in Weintraub:

A notice of appeal is generally deemed filed on the date it is actually filed with the clerk of the trial court. This date is presumptively shown by the filing date which the clerk of the trial court stamps on the face of the notice — although this is not a conclusive showing and may be rebutted by other evidence.

Weintraub, 482 So.2d at 457. We also echo the conclusion reached by the Fifth District in OCR-EDS, Inc. v. S & S Enterprises, Inc., 32 So.3d 665 (Fla. 5th DCA 2010), that “[a] rule that would deny a citizen who has timely sought an appeal his or her right to appeal based upon a proven mistake by a clerk’s office employee is not consistent with justice or due process.” Id. at 667. Accordingly, we hold that Strax should be given an opportunity to prove that the notice of appeal was actually received by the clerk of the circuit court within the jurisdictional time frame applicable in this case.

CONCLUSION

For the reasons set forth above, we quash the decision in Strax Rejuvenation & Aesthetics Institute, Inc. v. Shield, 24 So.3d 666 (Fla. 4th DCA 2009), and approve the decision in Weintraub v. Alter, 482 So.2d 454 (Fla. 3d DCA 1986). Further, we remand this case to the Fourth District Court of Appeal with directions that the district court remand the matter for an evidentiary hearing to determine if the notice of appeal was timely filed, consistent with the holdings set forth above. At the evidentiary hearing, Strax must overcome the presumption that the clerk’s time stamp accurately indicates the date of filing by submission of competent, substantial evidence that the notice of appeal was actually received in the clerk’s office within the filing deadline. By our decision today, we do not suggest that practitioners should be unconcerned about a clerk’s time stamp that indicates late filing of a document — especially when that document is a notice of appeal. The occasions when counsel should be required to rebut the presumption of late filing by submission of evidence should be extremely rare. Counsel are thus encouraged to continue to be vigilant in assuring that their documents are both timely received in the clerk’s office and, to the extent practicable, timely stamped to protect the rights of their clients.

It is so ordered.

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

      . We note that the court commentary to the 1984 amendment of rule 1.080(e) indicates that the amendment was necessary in order to coordinate with a contemporaneous amendment to Florida Rule of Civil Procedure 1.530. Rule 1.530 was amended to clear up confusion concerning the exact date from which the time for serving a motion for rehearing begins to run. See In re Amendments to Rules of Civil Procedure, 458 So.2d at 248. Florida Rule of Civil Procedure 1.530 was also amended in that same decision to clarify "that the date of filing as shown on the face of the judgment in a non-jury action is the date from which the time for serving a motion for rehearing is calculated.” Id. at 256 (commentary).

      . We also note that numerous decisions of the district courts of appeal have construed the clerk’s time stamp as creating a rebuttable presumption of the date of filing. See, e.g., OCR-EDS, Inc. v. S & S Enterprises, Inc., 32 So.3d 665, 666 (Fla. 5th DCA 2010) (disagreeing with Strax and holding that appellate jurisdiction is determined by the date the clerk received the document even if the date stamp indicates a belated filing); State v. Smiley, 802 So.2d 418, 419 (Fla. 2d DCA 2001) (remanding for evidentiary hearing after appellant disputed the accuracy of the clerk’s time stamp on the apparently untimely notice of appeal); Brooks v. Elliott, 593 So.2d 1209, 1210 (Fla. 5th DCA 1992) ("The file marking on the complaint is evidence of the date of filing, but the same is not conclusive and such evidence is rebuttable.”).


author: PER CURIAM. COHEN, J.,

text:
    JANSSEN PHARMACEUTICAL PRODUCTS, L.P., et al., Appellants/Cross-Appellees, v. Scott David HODGEMIRE, Personal, etc., Appellee/Cross-Appellant.
    No. 5D09-30.
    District Court of Appeal of Florida, Fifth District.
    Aug. 13, 2010.

      William E. Lawton and Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, Barry Richard of Green-berg Traurig, Tallahassee, Charles C. Lif-land of O’Melveny & Myers LLP, Los Angeles, and Ernest W. Auciello of Tucker Ellis & West LLP, Cleveland, OH, for Appellants/Cross-Appellees, Janssen Pharmaceutical Products, L.P., and ALZA Corporation.
    Bard D. Rockenbach and Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Joseph M. Taraska and Harry Jacobs of Jacobs & Goodman, P.A., Altamonte Springs, and E. Clay Parker of E. Clay Parker, P.A., Orlando, for Appel-lee/Cross-Appellant.
   PER CURIAM.

Appellants, Janssen Pharmaceutical Products, L.P., and ALZA Corporation, appeal from a jury verdict in favor of Appellee, Scott Hodgemire, as Personal Representative of the Estate of Susan Hodgemire, his deceased wife. Appellants challenge a number of pre-trial, trial, and post-trial rulings. With the exception of the trial court’s ruling on a setoff, we affirm in all respects.

One of the products Appellants advertise, manufacture, and distribute is Dura-gesic. Duragesic is a prescription trans-dermal patch that delivers a time-released dose of fentanyl, an exceptionally potent synthetic opiate. Mrs. Hodgemire was initially prescribed one 75 pg Duragesic patch following spinal fusion surgery performed by Jewett Orthopaedic Clinic (hereinafter “Jewett”). Her prescribing doctor, Dr. Villalobos, subsequently doubled her dose after she continued to experience pain.

Several nights after her dosage was increased, Mrs. Hodgemire awoke Appellee complaining of nausea and vomiting over several hours. At her request, Appellee called the hospital and he was advised to call Jewett. Doing so, Mrs. Hodgemire spoke to Kurt Wood, an on-call physician’s assistant at Jewett. Wood instructed Mrs. Hodgemire to take anti-nausea medication and call her family doctor the following Monday. Complying with these instructions, Mrs. Hodgemire returned to bed and fell asleep. Although he repeatedly checked on Mrs. Hodgemire the following morning, Appellee discovered his wife dead in the early afternoon. Following an autopsy, the medical examiner concluded Mrs. Hodgemire died from fentanyl toxicity, based in part on her postmortem blood fentanyl level of 22 ng/ml.

Three claims were presented to the jury for its consideration: medical negligence against Wood; strict liability against Appellants for defectively manufacturing, designing, and failing to warn of the dangers associated with Duragesic; and a claim against Appellants for negligently manufacturing and failing to warn of the dangers associated with Duragesic.

The primary issue at trial was whether Mrs. Hodgemire’s postmortem fentanyl blood level could have been caused by properly working Duragesic patches. Ap-pellee asserted that there was a defect in the design and manufacture of the patch, such that Mrs. Hodgemire received too much of the drug too quickly. In support, Appellee presented expert testimony, complaints of defective Duragesic patches, testimony of manufacturing defects, as well as evidence of a recall. The jury heard sharply conflicting testimony about whether a properly working patch could explain Mrs. Hodgemire’s postmortem fentanyl blood level.

Appellee’s experts testified that the maximum amount of fentanyl Mrs. Hodge-mire would have received from two or three properly working patches ranged from 3.4 to 9.8 ng, accounting for the mean plus two standard deviations higher. This testimony was predicated on Appellants’ published data in the package insert that was included with the Duragesic patches. The package insert stated the mean “Maximal Concentration” for a person using one 75 pg patch to be 1.7 ng with a standard deviation of .7. Because Mrs. Hodgemire’s blood fentanyl level was measured after death, the experts also accounted for postmortem redistribution.

Postmortem redistribution is the process by which drugs stored in the body’s tissues are released back into the bloodstream upon death. It is calculated by measuring the amount of a drug in central (heart) blood and femoral blood. Under the theory that femoral blood more accurately represents the antemortem level of a drug in a person’s body, the central blood level is compared to the femoral blood level to develop a ratio. This ratio represents the amount a drug redistributes after death.

In rendering their opinion on postmortem redistribution, Appellee’s experts relied on two sources. The first source was a published journal article. The second source was an affidavit; it was prepared by the author of the journal article for another case and updated the research from the article with additional case studies. The research looked at deaths from the Los Angeles County, CA coroner’s office where the decedent’s blood tested positive for fentanyl. Taking those cases that reported central and femoral blood fenta-nyl concentrations, the affidavit concluded that the ratio of postmortem redistribution between central and femoral blood averaged 1:1.2.

Adopting the 1:1.2 postmortem redistribution fentanyl ratio from the affidavit, Appellee’s experts multiplied the ratio with the maximum level of fentanyl they testified properly working patches would produce. Accounting for postmortem redistribution, the experts testified that the maximum amount of fentanyl they would have expected properly working patches to produce in Mrs. Hodgemire was 7.44 ng/ml for two patches or 11.16 ng/ml for three patches. Comparing this number to her postmortem level of 22 ng/ml, the experts concluded that Mrs. Hodgemire died from a lethal dose of fentanyl due to a failure in the Duragesic patch.

In stark contrast, Appellants’ expert opined that a person using 150 g of Dura-gesic would have a blood fentanyl level between 1.5 to 13.5 ng/ml. Placing emphasis on the fact that blood was not drawn from Mrs. Hodgemire until three days after her death, Appellants’ expert testified that postmortem redistribution would increase the level of fentanyl in her blood by two to seven-fold. He also testified that the postmortem level of fentanyl only indicated that Mrs. Hodgemire used fentanyl and could not be used to predict or reach conclusions about her fentanyl level before she died. After hearing this and a wealth of other testimony, the jury returned a verdict in favor of Appellee, apportioning liability eighty percent against Appellants and twenty percent against Wood.

The first issue in their brief and primary focus at oral argument was the trial court’s denial of Appellants’ motion to exclude expert testimony that calculated Mrs. Hod-gemire’s antemortem fentanyl blood level from her postmortem blood level. Appellants challenged the testimony on the basis that it did not meet the Frye standard of admissibility. We review this issue de novo. Hildwin v. State, 951 So.2d 784, 791 (Fla.2006).

Before addressing the merits of Appellants’ Frye challenge, this court requested supplemental briefing on whether this issue was preserved for review. Appellants contend they preserved the issue by raising it in a pre-trial motion in limine and receiving an adverse ruling. Appellee argues the issue was not preserved because Appellants did not expressly request a Frye hearing.

A party may preserve a Frye challenge by making a specific objection at trial. Thus, generally objecting to the expert under section 90.702, Florida Statutes, is insufficient. See United States Sugar Corp. v. Henson, 787 So.2d 3, 12 (Fla. 1st DCA 2000). Objecting that the expert’s opinion goes to the ultimate issue in the case or that the expert is not competent to testify is also insufficient. See Hadden v. State, 690 So.2d 573, 580 (Fla.1997). Rather, the objection must challenge the expert’s testimony on the basis that the “novel scientific evidence is unreliable.” Id.

A party may also raise a Frye challenge pre-trial. The supreme court has recognized this as the better procedure because it minimizes any inconvenience to the jury. Ramirez v. State, 651 So.2d 1164, 1168 n. 4 (Fla.1995). If raised pre-trial, courts have recognized that, normally, an evidentiary hearing should be held. See United States Sugar Corp., 787 So.2d at 21; Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113, 1121 (Fla. 4th DCA 2001) (opinion on denial of rehearing). However, an evidentiary hearing is not always required. See United States Sugar Corp., 787 So.2d at 21. This is particularly true when the face of the motion indicates that the expert’s testimony is not subject to a Frye analysis.

In this case, Appellants’ motion in limine sought to exclude any expert who would calculate Mrs. Hodgemire’s ante-mortem blood fentanyl level from her postmortem blood level because it did not “pass muster under Frye.” At the hearing scheduled to resolve the parties’ motions in limine, approximately twenty-four in total, Appellants introduced their Frye motion by stating: “We have moved in limine to exclude reference to the decedent’s postmortem fentanyl blood level. And the reason for that is the postmortem blood level of a person is scientifically unreliable....” The trial court subsequently denied the motion, concluding the testimony was not subject to Frye.

Both Appellants’ motion and argument at the hearing put opposing counsel and the trial court on notice that Appellee’s experts were being challenged based on Frye. Although Appellants did not specifically request a Frye hearing, we believe they sufficiently preserved it for this court’s review. However, we conclude that Appellee’s experts’ testimony was not subject to Frye.

A Frye inquiry ensures that the scientific principles and methodologies underlying an expert’s testimony are generally accepted in the scientific community. See United States Sugar Corp. v. Henson, 823 So.2d 104, 110 (Fla.2002). Frye is only implicated when an “expert attempts to render an opinion that is based upon new or novel scientific techniques.” Id. at 109. As long as the expert’s opinion is based on “generally accepted scientific principles and methodology, it is not necessary that the expert’s deductions based thereon and opinion also be generally accepted as well.” Id. at 109-10; see also Berry v. CSX Transp., Inc., 709 So.2d 552, 567 (Fla. 1st DCA 1998).

Appellants advance two arguments why Appellee’s experts’ testimony was not scientifically valid or reliable in violation of Frye. First, Appellants assert that these experts took Mrs. Hodgemire’s postmortem fentanyl blood level of 22 ng/ml and, accounting for postmortem redistribution, extrapolated backwards to draw inferences about her antemortem fentanyl blood level. Stated differently, Appellants contend that Appellee’s experts took Mrs. Hodgemire’s measured postmortem fentanyl blood level and subtracted the effect of postmortem redistribution to calculate her antemortem fentanyl blood level. This argument is unpersuasive because Appellee’s experts did not employ this methodology to calculate Mrs. Hodgemire’s antemortem fenta-nyl blood level.

Rather than back-extrapolating, Appel-lee’s experts simply compared Mrs. Hod-gemire’s measured postmortem fentanyl level with the antemortem fentanyl level they assumed properly working Duragesic patches would produce after accounting for postmortem redistribution. In rendering their opinion, the experts first used the information in the Duragesic package insert that was published by Appellants to calculate the maximum level of fentanyl they expected properly working patches would deliver. Second, the experts testified regarding how much they expected postmortem redistribution would increase the amount of fentanyl in the blood after death. Third, the experts multiplied these numbers together' to obtain the maximum range of fentanyl they would have expected Mrs. Hodgemire to have at the time of her death if the patches functioned properly. Comparing this number range, 7.44 or 11.16 ng/ml, to the level measured after Mrs. Hodgemire died, 22 ng/ml, the experts concluded the patches were defective. Contrary to Appellants’ assertion, Appellee’s experts did not calculate Mrs. Hodgemire’s antemortem fentanyl blood level by extrapolating backwards from her postmortem fentanyl blood level.

Appellants’ second argument is that there was no scientific basis for Appellee’s experts to testify that the average postmortem redistribution ratio for fentanyl was 1:1.2. According to Appellants, the medical literature does not support a 1:1.2 average. Appellants also claim the literature reflects wide individual variability and there is no evidence “remotely” suggesting that calculating an average ratio for postmortem redistribution is valid for predicting its effect in any individual. This argument does not raise a Frye issue.

As long as Frye concerns are met that the underlying theory, methodology, and principles are generally accepted, Frye does not require an expert’s opinion to be generally accepted. See United States Sugar Corp., 823 So.2d at 109. In this case, the parties concede that the theory underlying postmortem redistribution is generally accepted. The parties concede that postmortem redistribution with fentanyl is generally accepted. There is also no dispute that the methodology for determining how the postmortem redistribution ratio is calculated is generally accepted. Because none of the science underlying postmortem redistribution is being challenged, Appellee’s experts’ opinions concerning the amount of redistribution did not have to be generally accepted as well. See id. at 110; contra Battle v. Gold Kist, Inc., 2008 WL 4097717 (M.D.Fla.2008) (excluding expert opinion on marijuana impairment, in part, because no evidence was presented that postmortem redistribution occurred with marijuana).

The only other issue we briefly address is Appellants’ argument that they are entitled to a setoff from Jewett’s settlement with Appellee, “calculated in accordance with the ratio of economic damages to total damages established by the jury.” Under this calculation, Appellants assert they are entitled to a setoff of $55,775. At oral argument, Appellee conceded error on this point. Consequently, we remand for a corrected judgment. We summarily reject Appellants’ remaining arguments on appeal.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED.

TORPY and EVANDER, JJ., concur.

COHEN, J., concurring and concurring specially, with opinion.

COHEN, J.,

concurring specially.

Under the current case law, I am compelled to agree with the majority’s finding that the Frye issue was preserved for appeal. The objection, albeit contained in a lengthy motion in limine, placed opposing counsel and the trial court on notice of the Frye challenge.

The trial court in this case was placed in a difficult position. This case had been pending for over four years and the three week trial was scheduled for October 6, 2008. Less than thirty days before trial, the parties filed a total of twenty-four motions in limine, one of which was the Frye motion now being challenged on appeal. These motions were heard twelve days before trial and the argument on the Frye motion made up all of eleven pages of a 149 page transcript. Given the importance Appellants placed on this issue in their brief and at oral argument, it is not only surprising that so little argument was devoted to it, but that it was not even the first motion argued. In any event, I believe this was not the proper way to raise a Frye challenge in this case.

Although the motions in limine were heard in advance of trial, it is not uncommon, given a lack of resources and increasing case loads, that motions in limine are heard while the parties wait for potential jurors to be brought to the courtroom. In most cases, while not ideal, this process is adequate. What, then, if the trial court determines a need for an evidentiary'hear-ing? We know the proponent of the testimony being challenged is required to present independent experts to establish that the principles involved are not new or novel. See Ramirez v. State, 810 So.2d 836, 851 (Fla.2001). Assuming the proponent of the testimony has independent experts retained and available, an expensive proposition, delay is inherent. It is difficult enough to schedule experts to testify at trial, much less having to secure and coordinate additional independent experts. To believe this can be accomplished immediately before, or even in the middle of trial, presents an unworkable model. Either the judge’s trial schedule will be impacted and/or the jury’s time will be extended while such a hearing is conducted. Neither procedure results in an efficient administration of justice.

If counsel believes there is a good faith basis for excluding testimony based upon Frye, a separate motion filed sufficiently in advance of trial, and clearly identifying the issue, should be required. The better practice would then be to set a hearing so the trial court could determine Frye’s applicability or whether a further evidentiary hearing is needed.

      . Because we are affirming, it is unnecessary to address the issue raised in Appellee’s cross-appeal.

      . |xg stands for microgram.

      . Complicating this case was the fact that the Duragesic patches removed from Mrs. Hodge-mire by the medical examiner’s office were not retained.

      . Dr. Villalobos and Jewett settled with Appel-lee pre-trial.

      . The parties disputed whether Mrs. Hodge-mire was wearing two or three patches at the time of her death.

      . Conversely, it is assumed that more of a drug leeches back into the heart than the femoral artery.

      . Because fentanyl-related deaths are not predictable, and obviously cannot be induced for research purposes, studies on postmortem redistribution are limited to an analysis of postmortem fentanyl blood.

      . Compared to the information contained in Appellants’ package insert and Appellee’s experts’ testimony, this range was on the far extreme of what would have been expected.

      . Frye v. U.S., 293 F. 1013 (D.C.Cir.1923).

      . In contrast to the pre-trial hearing in this case, the trial court in Battle v. Gold Kist, 2008 WL 4097717 (M.D.Fla.2008), was presented with numerous studies addressing the reliability of blood measurements in assessing the validity of postmortem redistribution and whether it occurred with cannabis. The trial court in this case only had the benefit of counsels’ argument.


author: GATES, MICHAEL L., Associate Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, a Florida corporation, Appellant, v. EUROPEAN WOODCRAFT & MICA DESIGN, INC., a Florida corporation, and Global Insurance Services, Inc., a Florida corporation, Appellees.
    No. 4D08-4932.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2010.
    Rehearing Denied Jan. 10, 2011.

      Christopher W. Wadsworth and Guy F. Giberson of Wadsworth Huott, L.L.P., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Edward Zebersky and Michael Kaplan of Zebersky & Payne, LLP, Hollywood, for
    Appellee-European Woodcraft & Mica Design, Inc.
   GATES, MICHAEL L., Associate Judge.

This litigation arose from a coverage dispute between Plaintiff European Woodcraft & Mica Design, Inc. (“Plaintiff’ or “European Woodcraft”) and Citizens Property Insurance Company (“Defendant” or “Citizens”).

Citizens does not have direct contact with prospective insureds. Rather, it only accepts applications for windstorm coverage from appointed Florida licensed agents. Citizens appointed Global Insurance Services, Inc. (“Global”) as its licensed Florida agent, giving Global the authority to submit insurance applications. As such, Citizens supplied Global with the application forms as well as an agency number.

As European Woodcraft regularly used Global to obtain its insurance, it requested that Global provide windstorm insurance for its new property. Pursuant to Plaintiffs request, Global secured a quote from Citizens and thereafter faxed a letter along •with an insurance application to Plaintiff. However, Global only included the first page of the application while the letter stated:

In order for our office to bind coverage with Citizens Insurance Corporation a full annual premium check in the amount of $568.00 is required along with a signed application (see attached). This check should be made payable to Citizens Property Insurance Company.

The informational section of the application, some of which was incorrect, was completed by a Global representative. Directly above the applicant/signature line on the application was the following printed language:

I hereby certify that the information on this application is true and correct to the best of my knowledge. I further understand and agree to the terms as set forth on page 2.

The Plaintiffs principal, Mr. Volpe, signed the application notwithstanding the incorrect information. Additionally, Mr. Volpe admitted that when he signed the application he understood page 2 was part of the application. Yet he never requested to review page 2 of the application before signing.

Upon receipt of the application and premium check, Citizens faxed Global a confirmation which stated the following:

This is not a binder of coverage. Coverage is contingent upon compliance with applicable requirements as set forth in the Citizens Manual of Rates, Rules, and Procedures.

On July 18, 2005, Citizens notified Global that Plaintiffs premium check was void for insufficient funds. A Global representative advised European Woodcraft of the problem. Mr. Volpe of European Woodcraft delivered a new check to Global on the premise that once Citizens received the check, the process for securing the insurance would be completed.

On July 28, 2005, after receiving the application and replacement check for the premium, Citizens determined a mistake was made in the property designation section of the application. The correct property designation increased the amount of the premium. Citizens sent a Notice of Deficiency to Global and to Plaintiffs address listed on its application. The Notice indicated a policy would not be issued until the full premium was paid. European Woodcraft’s notice was returned as undeliverable. Global received its notice but never communicated with the Plaintiff.

On October 5, 2005, Citizens informed Global by letter that no additional premium payment had been received. Therefore, it was closing its file, returning the premium paid and further advised no coverage exists. Shortly thereafter, Hurricane Wilma struck South Florida damaging European Woodcraft’s property.

European Woodcraft reported its loss to Citizens and was advised there was no coverage. This lawsuit ensued.

ANALYSIS

In the Final Judgment the trial court found as follows:

(a) “The Court finds that Global at all times material, was a ‘general lines agent’ which had apparent authority to bind insurance coverage for Citizens.”
(b) “The Court also finds that Global was given the ‘indicia of agency’ to bind coverage by Citizens.”
(c) “The Court also finds that there is no evidence that European Woodcraft was ever put on notice of any limitations on Global authority to bind coverage.”

As a general lines agent, Global would be licensed to represent insurance companies in the solicitation and sale of insurance policies. Hughes v. Pierce, 141 So.2d 280, 282 (Fla. 1st DCA 1961).

Section 626.015(5), Florida Statutes (2005), defines a “General Lines Agent” as an agent who transacts with one or more of the following kinds of insurance:

(a) Property insurance.
(b) Casualty insurance, including commercial liability insurance underwritten by a risk retention group, a commercial self-insurance fund as defined in s. 624.462, or a workers’ compensation self-insurance fund established pursuant to s. 624.4621.
(c) Surety insurance.
(d) Health insurance, when transacted by an insurer also represented by the saíne agent as to property or casualty or surety insurance.
(e) Marine insurance.

§ 626.015(5), Fla. Stat. (2005).

Under Section 626.015(5)(a), Global would be considered a “general lines agent” for transacting windstorm property insurance. The issue is whether Global was specifically Citizens’ general lines agent, having the apparent authority to bind Citizens into providing coverage for European Woodcraft. Russell v. Eckert, 195 So.2d 617, 620 (Fla. 2d DCA 1967).

An insurer may be held accountable for the action of those whom it cloaks with apparent agency. Almerico v. RLI Ins. Co., 716 So.2d 774, 777 (Fla.1998). Here, the trial court found Citizens provided application forms as well as a Citizens underwriting manual to Global. The Florida Supreme Court has held that “the furnishing of company materials by the insurance company to the individual agent or broker and the subsequent acceptance of business from that agent established] civil liability by an insurer to an insured in the same manner as if the insurer had specifically designated the broker as its agent.” Id. at 781. However, the principal (insurer) will not be bound by the agent’s action if the insured knew or was put on notice of inquiry as to the limitation on the agent’s actual authority. Amstar Ins. Co. v. Cadet, 862 So.2d 736, 741 (Fla. 5th DCA 2003) (emphasis added).

The trial court found there was no evidence that European Woodcraft was ever put on notice of any limitations on Global’s authority to bind coverage. However, the application states the following in the first paragraph on the second page of the application:

Effective Date of Coverage is upon approval of Citizens. No insurance agent has the power to bind coverage or make the policy effective. ■ Receipt by agents of premiums is not receipt by Citizens and does not make the policy effective. Applicants must not rely on representations of any party other than Citizens in its Tallahassee or Jacksonville Offices.

This provision clearly provides actual notice on the limitations of Global to bind the insurer. Since European Woodcraft never received the second page of the application, the issue is whether European Woodcraft was placed on notice of inquiry regarding limitations of the brokers’ actual authority. The printed line directly above the signature line on page 1 of the application reads:

I further understand and agree to the terms as set forth on page 2.

Mr. Volpe, European Woodcraft’s principal, admitted that when he signed the application, he understood page 2 was part of the entire application but never asked to review the page. “In order to charge a person with notice of a fact of which he might have learned by inquiry, the circumstances known to him must be such as should reasonably suggest inquiry and lead him to inquiry.” Sheres v. Genender, 965 So.2d 1268, 1271 (Fla. 4th DCA 2007) (quoting Chatlos v. McPherson, 95 So.2d 506, 509 (Fla.1957)). Was Volpe on inquiry notice of the agency disclaimer? Stated another way, “would a reasonable person inquire and therefore discover the agency limitation provision?” A reasonable person under these circumstances would have actually read page 2 and discovered the agency disclaimer. “[A] person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.” Sapp v. Warner, 105 Fla. 245, 141 So. 124, 127 (1932). Similarly, an insured cannot avoid liability for a provision in an insurance application he claims he did not read. Nationwide Mut. Fire Ins. v. Kramer, 725 So.2d 1141, 1143 (Fla. 2d DCA 1998).

The Plaintiff under these given circumstances was placed on inquiry notice and therefore subject to the limitations imposed on Global by Citizens. Lastly, Citizens contends the trial court erred in failing to rule, as a matter of law, that European Woodwork was on notice of the contents of page 2 of the insurance application based on the incorporation by reference doctrine. The trial court ruled that since Mr. Volpe was never provided page 2 of the application, Citizens cannot rely on the incorporation by reference doctrine to bind him to its terms, citing Affinity Internet, Inc. v. Consol. Credit Counseling Servs., Inc., 920 So.2d 1286, 1288 (Fla. 4th DCA 2006). We agree.

There are two different rules for deciding whether a document has been incorporated by reference. First, “[a] document must be considered incorporated by reference where the incorporating document specifically provides that it is subject to the incorporated document.” Hurwitz v. C.G.J. Corp., 168 So.2d 84, 86 (Fla. 3d DCA 1964) (emphasis added). This was not the case with Citizens application. Nowhere in the application did it make it subject to the terms and conditions on page 2. Second, if the collateral document is sufficiently described or referenced in the incorporating agreement it may be considered, but only for the purpose of determining the intention of the contracting parties. Id. at 87. Here, the language on page 1 of the application did not expressly refer to or describe the agency disclaimer on page 2 and therefore cannot be incorporated by reference. As discussed in Affinity, merely suggesting the additional terms of the contract, without sufficiently describing the other document or offering the collateral document to the party intending to be bound, precludes application of incorporation by reference doctrine. 920 So.2d at 1288. Accordingly, the trial court did not err by failing to apply the incorporation by reference doctrine as to page 2 of the insurance application as a matter of law.

Reversed and Remanded.

POLEN and MAY, JJ., concur.


author: PER CURIAM.

text:
    Magdelines GONGORA, David Gongora, and Jose Rodriguez, Appellants, v. e-LYNXX CORPORATION and Anthony W. Hawks, Appellees.
    No. 3D09-2396.
    District Court of Appeal of Florida, Third District.
    Oct. 6, 2010.
    Rehearing Denied Dec. 17, 2010.
    David H. Pollack, for appellants.
    Brown and Heller and Lawrence R. Heller and Daniel M. Hirschman, Miami, for appellees.

      Before SHEPHERD, CORTIÑAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Humane Soc’y of Broward County, Inc. v. Fla. Humane Soc’y, 951 So.2d 966, 971 (Fla. 4th DCA 2007) (“To apply Christiansburg [Garment Co. v. Equal Employment Opportunity Commission, 484 U.S. 412, 98 S.Ct. 694, 54 L.Ed.2d 648 (1978) ] to section 501.2105(1), [as appellants urge], would be to rewrite the statute. For this court to so change legislation would be an extra-judicial act which usurps legislative authority. Adoption of the Christiansburg standard in this case would steal from the trial court the very discretion that the legislature has allowed in determining FDUTPA fee awards.”).


author: SAWAYA, J.

text:
    DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Gary BERNE, Respondent.
    No. 5D09-4648.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2010.
    Rehearing Denied Nov. 30, 2010.

      Robin F. Lotane, General Counsel and Heather Rose Cramer, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Lake Worth, for Petitioner.
    Stuart I. Hyman of Stuart I. Hyman, P.A., Orlando, for Respondent.
   SAWAYA, J.

The Department of Highway Safety and Motor Vehicles (“the Department”) petitions this court for certiorari review of a circuit court order quashing the decision of an administrative hearing officer that sustained the driver’s license suspension of Respondent, Gary Berne, after he was arrested for driving under the influence of alcohol in violation of section 316.193, Florida Statutes (2005). We grant the Petition and quash the circuit court order.

After he was arrested for driving under the influence of alcohol, Berne submitted to a breath test on the Intoxilyzer 8000 utilizing 8100.26 software. The test results revealed a blood alcohol level in excess of 0.08. As a result, Berne’s driver’s license was administratively suspended. Berne subsequently requested and received a formal review hearing pursuant to section 322.2615(6)(a), Florida Statutes (2005). The facts of the underlying events that lead to Berne’s arrest and driver’s license suspension are clearly explained in the hearing officer’s order sustaining the administrative suspension, and so we will parrot them here.

On July 14, 2006, Trooper Hawkins, of the Florida Highway Patrol, was dispatched to a crash involving Mr. Berne. After completing the crash investigation, Trooper Hawkins read Mr. Berne his Miranda Rights at which time he admitted to driving the vehicle that was involved in the crash. Trooper Hawkins detected the following: the odor of alcohol emitting from his breath, he swayed while standing, and his speech was slurred. Mr. Berne admitted to consuming two glasses of wine prior to driving.
Mr. Berne consented to the following field sobriety exercises: Horizontal Gaze Nystagmus, walk and turn, finger to nose, and one leg stand. Mr. Berne did not maintain his balance nor follow instructions throughout.
Mr. Berne was placed under arrest for DUI and transported to the Orange County DUI Breath Testing Center. Mr. Berne submitted samples of .137 and .131. Mr. Berne’s privilege to operate a motor vehicle was suspended for six months for driving with an unlawful alcohol level.
CONCLUSIONS OF LAW AND FACT
1. The arresting law enforcement officer did have probable cause to believe that you were driving or in actual physical control of a motor vehicle in this state while under the influence of alcoholic beverages or controlled substances.
2. You were lawfully arrested and charged with a violation of section 316.193, Florida Statutes.
3. You did have an unlawful alcohol level of .08 or higher.
Based upon the above findings of fact and the conclusions of law, the hearing officer concludes that your driving privilege was properly suspended and is sustained effective October 24, 2006. Your suspension is for a period of six months effective July 14, 2006 to expire January 13, 2007. Florida law requires that you surrender all driver licenses. If you have a license in your possession, please mail it to the address listed above.

We note, parenthetically, that the hearing officer complied with the proper scope of review. See § 322.2615(7)(a), Fla. Stat. (2005); see also Dep’t of Highway Safety & Motor Vehicles v. Mowry, 794 So.2d 657, 658 (Fla. 5th DCA 2001).

Dissatisfied with the hearing officer’s order, Berne availed himself of the right to have that decision reviewed by filing a petition for writ of certiorari in the circuit court. It is the third finding and conclusion made by the hearing officer — that Berne had a blood alcohol level of .08 or higher — that prompted the circuit court to grant the petition and quash the suspension order. The circuit court explained in pertinent part:

[T]he Petitioner argues that the breath test results obtained from him were not properly approved since they were obtained by use of a breath testing machine that had not been properly approved pursuant to F.D.L.E. Rule 11D-8.003. Under Florida’s “Implied Consent Law,” only approved breath testing machines may be used to establish impairment, and Florida Administrative Code Rule 11D-8.003 establishes the procedures for the approval of such machines. State v. Muldowny, 871 So.2d 911, 913 (Fla. 5th DCA 2004). In order for an analysis of a person’s breath to be considered valid, the State must show that it was performed substantially according to the methods approved by the Department as reflected in the administrative rules and statutes. Dep’t of Highway Safety & Motor Vehicles v. Russell, 793 So.2d 1073, 1075 (Fla. 5th DCA 2001).
The Respondents counter the Petitioner’s claims by asserting that they complied with all applicable FDLE regulations in the use and inspection of the breath testing machine. Specifically, the Respondents claim that the “breath test results are admissible if evidence of the following is provided by the Department: (1) the breath test was performed substantially in accordance with [FDLE] rules, with an approved machine and by a qualified technician; and (2) the machine has been inspected in accordance with [FDLE] rules to assures it accuracy.” State v. Donaldson, 579 So.2d 728, 729 (Fla.1991). The Respondent refers to the Breath Alcohol Test Affidavit, the Agency Inspection Report, and the Department Inspection Report in order to demonstrate compliance with the FDLE rules and the requirements set out in Donaldson.
Whether or not the Petitioner’s breath wjas tested on an approved device is at the heart of the instant case. Despite the Petitioner’s best efforts, the hearing officer failed to consider the discrepancies and problems presented in the In-toxilyzer approval studies performed in April and May of 2002. Competent substantial evidence existed to demonstrate that these approval studies did not comply with the requirements of FDLE Rule 11D-8.003 and FDLE Form 34, as argued by the Petitioner and noted by the en banc panel in the Atkins [State v. Atkins, 16 Fla. L. Weekly Supp. 251a (Fla. Orange Cty. Ct. June 20, 2008) ] case. Without independent scientific evidence demonstrating the reliability of the Intoxilyzer 8000 with software version 8100.26, the hearing officer should have excluded the Petitioner’s breath test results.
Absent any controlling authority on this point from the Fifth District Court of Appeal, we find that en banc panel’s decision in the Atkins case to be well .reasoned and highly persuasive. In this specific case, the Petitioner rebutted the presumption that the Department complied with the applicable rules and regulations, and the Respondent failed to adequately meet their burden of demonstrating substantial compliance. By failing to do so, this Court finds a reversible error and grants the petition for writ of certiorari.

Our certiorari review of this decision is limited to whether the circuit court afforded procedural due process and applied the correct law. See Dep’t of Highway Safety & Motor Vehicles v. Patrick, 895 So.2d 1131, 1133 (Fla. 5th DCA 2005); Dep’t of Highway Safety & Motor Vehicles v. Perry, 751 So.2d 1277, 1279 (Fla. 5th DCA 2000); Conahan v. Dep’t of Highway Safety & Motor Vehicles, 619 So.2d 988, 989 (Fla. 5th DCA 1993).

In a formal review hearing,; the Department is only required to establish an unlawful blood-alcohol level by a preponderance of the evidence. § 322.2615(7)(a)3., Fla. Stat. (2005); Mowry, 794 So.2d at 658. In order to be admissible, the Department must establish that the breath test administered to determine the blood-alcohol level was performed substantially according to the pertinent statutes and the methods approved by the Florida Department of Law Enforcement (“FDLE”), which are promulgated in the Florida Administrative Code. § 316.1932(1)(b)2., Fla. Stat. (2005); see also Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 144 (Fla. 2d DCA), review denied, 835 So.2d 269 (Fla.2002); Dep’t of Highway Safety & Motor Vehicles v. Russell, 793 So.2d 1073, 1075 (Fla. 5th DCA 2001); State v. Friedrich, 681 So.2d 1157, 1163 (Fla. 5th DCA 1996). FDLE has adopted rules implementing the implied consent law in Chapter 11-D, Florida Administrative Code. Fla. R. Admin. Code R. 11D-8; Lanoue v. Florida Dep’t of Law Enforcement, 751 So.2d 94, 98 (Fla. 1st DCA 1999); Friedrich at 1159. Specifically, rules 11D-8.002 through 8.007 incorporate FDLE’s approved techniques and methods and govern how the breath testing machines must be approved, maintained, and tested. FDLE has also promulgated forms for use in implementing the implied consent law. Fla. R. Admin. Code R. 11D-8.017.

Section 322.2615(11), Florida Statutes (2005), specifically provides that the formal review hearing may be conducted by the hearing officer based upon a review of the documents relating to the administration of the breath test. See also Alliston. In order to meet its burden of proof, the Department introduced a Breath Alcohol Test Affidavit containing the results of Berne’s breath test administered on the Intoxilyzer 8000, an Agency Inspection Report, and a Department Inspection Report.

These documents contained all of the statutorily required information necessary under section 316.1934(5), Florida Statutes (2005), to admit the affidavit containing the breath test results into evidence and to establish that the Intoxilyzer 8000 used for Berne’s test was properly inspected and maintained, that it performed appropriately, and that it produced accurate and reliable test results. See, e.g., Dep’t of Highway Safety & Motor Vehicles v. Dehart, 799 So.2d 1079, 1081 (Fla. 5th DCA 2001) (“The breath test result affidavit which was submitted in this case, when combined with the agency inspection report, shows that DHSMV and the local agency substantially complied with the applicable statutes and rules relating to the inspection and maintenance of the intoxilyzer used for Dehart’s breath test.”); Russell, 793 So.2d at 1076 (“When the breath test result affidavit is considered together with the agency inspection report, it is clear that both the inspection and the required maintenance of the machine were performed ... in substantial compliance with the applicable statutes and rules.”).

Once admitted, the affidavit “is presumptive proof of the results of an authorized test to determine alcohol content of the blood or breath....” § 816.1934(5), Fla. Stat. (2005); see also § 316.1934(2)(c), Fla. Stat. (2005) (providing that an individual’s test result of 0.08 or higher is prima facia evidence that the person was impaired); Gurry v. Dep’t of Highway Safety, 902 So.2d 881, 884 (Fla. 5th DCA 2005); Alliston at 142; Mowry at 659; Russell at 1076. After the affidavit is admitted, the burden shifts from the Department to the party challenging the license suspension to overcome the presumption of impairment.

Berne attempted to overcome the presumption of impairment by presenting evidence that the Intoxilyzer 8000 devices used in Florida, including the device that was used for his test, utilize the 8100.26 software, which is a version of software that he claims has “never been subjected to an approval study required under FDLE Rule 11D-8.003.” He, therefore, argues that the Intoxilyzer 8000 devices in Florida that are now using this version of software are not approved devices as required under the rule. The circuit court accepted that argument. Specifically, the circuit found that Berne “met his ... burden of rebutting the presumption created by the Department’s documentary evidence that it substantially complied with the rules governing the approval of the breath testing instrument.” Hence, the circuit court held that “without independent scientific evidence demonstrating the reliability of the Intoxilyzer 8000 with software version 8100.26, the hearing officer should have excluded the Petitioner’s breath test results.” In holding that In-toxilyzers utilizing this version of software are not approved devices, the circuit court applied the wrong law.

Florida Administrative Code Chapter 11D-8 was amended on November 5, 2002, to specifically add the CMI, Inc. Intoxilyzer 8000 as an approved breath test instrument for evidentiary use in Florida. That chapter was again amended in 2004 to address approval of breath testing instruments. Rule 11D-8.003, titled “Approval of Breath Test Methods and Instruments,” provides in pertinent part:

(1) [FDLE] has approved the following method(s) for evidentiary breath testing: Infrared Light Test, also known as Infrared Light Absorption Test.
(2) [FDLE] approves breath test methods and new instrumentation to ensure the accuracy and reliability of breath test results. [FDLE] has approved the following breath test instrumentation for evidentiary use.... CMI, Inc. Intoxilyzer 8000 using software evaluated by [FDLE] in accordance with Instrument Eyaluation Procedures FDLE/ATP Form 34-Rev. March 2004.
(4) [An FDLE] inspection performed in accordance with Rule 11D-8.004, F.A.C., validates the approval, accuracy and reliability of an evidentiary breath test instrument.
(5) [FDLE] shall conduct evaluations for approval of new instrumentation under subsection (2) in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34-Rev. March 2004.
(6) The availability or approval of new instruments, software, options or modifications does not negate the approval status of previously approved instruments, software, options or modifications.

Contrary to the assertions of Berne and the holding of the circuit court, an approval study or “independent scientific evidence demonstrating the reliability of the Intoxilyzer 8000 with software version 8100.26” is not required by the rule. The rule specifically provides that the Intoxi-lyzer 8000 is an approved instrument if it is used with software evaluated by FDLE in accordance with Instrument Evaluation Procedures FDLE/ATP Form 34. Roger Skipper, a Department Inspector for FDLE, testified during the hearing that an approval study with the 8000.26 software was not required by the rule and specifically testified that only an evaluation was necessary. He also testified that a proper evaluation had been conducted with the 8100.26 version of software, and the Department specifically points to the evaluation conducted on January 4, 2006, in accordance with the rule and Form 34. Thus, the Intoxilyzer 8000 is an approved device in Florida and the software 8100.26 version was evaluated. Finally, paragraph 6 specifically provides that a new software version does not negate the prior approval of an instrument.

We conclude that the documents introduced into evidence at the hearing revealed that Berne had a blood-alcohol level in excess of 0.08, which raises the presumption that Berne was driving while under the influence of alcohol to the extent that his normal faculties were impaired. Those documents, including the affidavit, were properly admitted into evidence. This shifted the burden to Berne to overcome the presumption by showing that the pertinent statutes and the methods approved by FDLE that are incorporated into the administrative rules were not substantially complied with. Instead, Berne attacked the approval of the Intoxilyzer 8000 because it incorporated a version of software that had not been approved, when all that is required under the rule is an evaluation. Berne failed to meet his burden of overcoming the presumption of impairment, and the circuit court applied the wrong law in quashing the administrative order affirming the suspension of Berne’s license. Indeed, the circuit court order clearly indicates that absent an opinion from this court, the circuit court will continue to apply the wrong law in future cases of administrative license suspensions involving breath tests administered on the Intoxilyzer 8000. Accordingly, we grant the petition and quash the order under review.

WRIT GRANTED; ORDER QUASHED.

EVANDER and JACOBUS, JJ., concur.

      . This court and others have rendered numerous decisions that have granted petitions for certiorari under similar circumstances. See Department of Highway Safety and Motor Vehicles v. Falcone, 983 So.2d 755, 756 (Fla. 2d DCA 2008); Dep’t of Highway Safety & Motor Vehicles v. Patrick, 895 So.2d 1131, 1133 (Fla. 5th DCA 2005); Alliston at 143-44; Dep't of Highway Safety & Motor Vehicles v. Lazzopina, 807 So.2d 77, 77 (Fla. 5th DCA 2001); Dep't of Highway Safety & Motor Vehicles v. Neff, 804 So.2d 519, 520 (Fla. 5th DCA 2001); Dehart at 1080; Dep't of Highway Safety & Motor Vehicles v. Cochran, 798 So.2d 761, 762 (Fla. 5th DCA 2001); Mowry at 658; Russell, 793 So.2d at 1076; see also State

        Farm Florida Ins. Co. v. Lorenzo, 969 So.2d 393, 398-99 (Fla. 5th DCA 2007) ("Moreover, we note the error could have a pervasive, widespread effect in other proceedings.”).


text:
    John BLACKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1376.
    District Court of Appeal of Florida, Fourth District.
    Oct. 20, 2010.
    Rehearing Denied Jan. 18, 2011.

      John Blacker, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appel-lee.
   PER CURIAM.

John Blacker appeals from an order summarily denying his rule 3.800(a) motion to correct illegal sentence. He challenges the revocation of his youthful offender status following a revocation of his community control. We reverse.

After a non-jury trial, Blacker was found guilty of several drug possession and trafficking offenses alleged to have occurred in February 1998; the only offenses relevant to the instant case are Counts XI (trafficking in hydromorphone, twenty-eight grams or more) and XV (trafficking in hydromor-phone, fourteen grams or more), for which he ultimately was sentenced as a youthful offender to concurrent terms of four years in prison, to be followed by two years of community control.

While on community control, Blacker entered an open plea to violation of community control (VOCC); he admitted he smoked marijuana and tested positive for using cocaine. The trial court found that these violations were substantive violations and revoked Blacker’s community control. The court revoked his youthful offender status and sentenced him to the twenty-five year drug trafficking mandatory minimum for Count XI and the fifteen-year drug trafficking mandatory minimum for Count XV.

On direct appeal, we affirmed the judgment and sentence per curiam without opinion. Blacker v. State, 949 So.2d 212 (Fla. 4th DCA 2007) (Table). Blacker argued in that appeal that the mandatory minimum penalties did not apply to a youthful offender. However, his status had been revoked, and he was not sentenced for the VOCC as a youthful offender. In the direct appeal, we did not determine whether his youthful offender status was properly revoked.

In this Rule 3.800(a) motion to correct illegal sentence, Blacker raised the following single ground for relief: the trial court improperly revoked his youthful offender status because he was not charged by information with a new substantive offense.

The trial court’s summary denial adopted the state’s reasoning that the motion was procedurally barred as having been raised and rejected on direct appeal. Blacker appeals.

Rule 3.800 allows a court at any time to “correct an illegal sentence imposed by it, or an incorrect calculation made by it in a sentencing scoresheet, or a sentence that does not grant proper credit for time served.” Fla. R.Crim. P. 3.800(a). A claim that a sentence exceeds the maximum sentence allowed by the youthful offender statute clearly is a claim of illegal sentence that can be raised in a motion to correct illegal sentence. E.g., Goelz v. State, 937 So.2d 1237 (Fla. 4th DCA 2006). However, whether a challenge to the trial court’s revocation of a defendant’s youthful offender status constitutes a cognizable claim of an illegal sentence appears to be a matter of first impression.

We issued an order to show cause directing the parties to address, among other things, whether the claim of erroneous revocation of youthful offender status itself is cognizable in a Rule 3.800(a) motion. The state failed to comply with this direction, and Blacker’s argument on this question was not on point.

A challenge to habitual offender sentencing imposed for an offense not subject to habitualization under any set of factual circumstances is cognizable in a Rule 3.800(a) motion as a matter of law. See Carter v. State, 786 So.2d 1173, 1178 (Fla.2001); Austin v. State, 756 So.2d 1080 (Fla. 4th DCA 2000). Likewise, Rule 3.800(a) may be used to challenge a sexual predator designation, so long as it is apparent from the face of record that the criteria for the designation were not met. Saintelien v. State, 990 So.2d 494 (Fla.2008). By analogy, we conclude that the erroneous revocation of a defendant’s youthful offender status is also cognizable in a Rule 3.800(a) motion.

Section 958.021, Florida Statutes (1997), expresses the legislative intent that youthful offender sentencing be considered “an alternative to be used in the discretion of the court.” There is no dispute that Blacker initially received a youthful offender sentence in accordance with section 958.04(3). A sentence imposed under the Florida Youthful Offender Act §§ 958.011-.15, Fla. Stat. (1997), is “[i]n lieu of other criminal penalties authorized by law ...” § 958.04(2), Fla. Stat. (1997).

Upon violation of a youthful offender’s supervision, the statute in effect at the time Blacker’s community control was revoked provided as follows:

A violation or alleged violation of probation or the terms of a community control program shall subject the youthful offender to the provisions of s. 948.06(1). However, no youthful offender shall be committed to the custody of the department for a substantive violation for a period longer than the maximum sentence for the offense for which he or she was found guilty, with credit for time served while incarcerated, or for a technical or nonsubstantive violation for a period longer than 6 years or for a period longer than the maximum sentence for the offense for which he or she was found guilty, whichever is less, with credit for time served while incarcerated.

§ 958.14, Fla. Stat. (2003). Section 948.06(1), Florida Statutes (2003), sets out the manner in which a violation of probation or community control must be charged and proven, and among many things, contains language that allows the court, if it revokes supervision, to “impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.” Nothing in section 948.06 or 958.14 indicates that youthful offender status is revoked upon revocation of probation or community control.

Once a circuit court has imposed a youthful offender sentence, it must continue that status upon resentencing after a violation of probation or community control. State v. Arnette, 604 So.2d 482, 484 (Fla.1992); Johnson v. State, 41 So.3d 1115 (Fla. 4th DCA 2010); Rogers v. State, 972 So.2d 1017, 1019 (Fla. 4th DCA), rev. denied, 988 So.2d 622 (Fla.2008); Hudson v. State, 989 So.2d 725, 726 (Fla. 1st DCA 2008); Gardner v. State, 656 So.2d 933, 937 (Fla. 1st DCA 1995) (“once a defendant is sentenced under the provisions of section 958.04, a court may not reclassify the defendant and sentence him or her in a manner inconsistent with section 958.04”).

If the defendant is convicted of and sentenced for a new offense in a subsequent case, the defendant is not entitled to a youthful offender sentence in that new case. Boynton v. State, 896 So.2d 898, 899 (Fla. 3d DCA 2005); State v. Hicks, 545 So.2d 952, 953 (Fla. 3d DCA 1989).

In Rogers, where youthful offender probation was violated based on allegations that the defendant committed a new offense, we held that “if the defendant is not charged by information with the new, substantive offense, but rather is charged by way of a violation of the defendant’s youthful offender commitment, the defendant’s youthful offender status may not be revoked.” 972 So.2d at 1019. See also Johnson, 41 So.3d at 1115. We held that the trial, court erred in revoking Rogers’s youthful offender status where he had not been convicted of the new substantive offense. Rogers, 972 So.2d at 1019. We also held that the court erred in imposing a sentence for the third degree felonies in excess of the statutory maximum, which, under section 958.14, was the maximum permissible sentence for a youthful offender who committed a substantive violation. Id. at 1019-20. There was no error in sentencing Rogers to fifteen years for his second degree felonies, but even so, he should have retained his youthful offender status because he was not convicted of the substantive offense with which he was charged in violating his probation. Id. at 1020.

Like the defendants in Rogers and Johnson, Blacker was not charged by information or convicted of the new substantive offenses that formed the basis for the VOCC. Accordingly, Blacker’s youthful offender status could not be revoked in this case.

“Unless the legislature clearly states otherwise, youthful offenders maintain youthful offender status even when they violate a condition of community control.” Amette, 604 So.2d at 484 (emphasis added). Even after violating supervision with a substantive violation, a youthful offender must be sentenced pursuant to the youthful offender statute. Rogers, 972 So.2d at 1017.

Blacker’s claim is cognizable in a Rule 3.800(a) motion, legally sufficient, and has not been refuted or shown to be proeedurally barred. We therefore reverse the trial court’s order. On remand, the trial court shall resentence Blacker as a youthful offender. Because he maintains his youthful offender status, the minimum mandatory penalties do not apply. See Mendez v. State, 885 So.2d 348 (Fla. 4th DCA 2003); Jones v. State, 588 So.2d 73 (Fla. 4th DCA 1991) (holding that the mandatory minimum penalties for drug trafficking do not apply to a defendant sentenced pursuant to the Youthful Offender Act)..

Reversed and Remanded for further proceedings.

TAYLOR, HAZOURI and GERBER, JJ., concur.

      . These offenses, known as "trafficking in illegal drugs,” are first-degree felonies with a statutory maximum of thirty years in prison. § 893.135(l)(c)l, Fla. Stat. (1997); § 775.082(3)(b), Fla. Stat. (1997).

      . A defendant’s status as a youthful offender matters in part because it affects the defendant’s classification within the prison system and the programs and facilities to which the defendant can be assigned. See § 958.11, Fla. Stat. (2009) (requiring that the department “designate separate institutions and programs for youthful offenders ...” and requiring that youthful offender institutions and programs contain "only those youthful offenders sentenced as such by the court or classified as such by the department ...”). Also, the Department of Corrections is authorized to recommend a modification of sentence and early termination for youthful offenders who successfully participate in the youthful offender program. § 958.04(2)(d), Fla. Stat. (2009).

      . The language allowing youthful offenders to be sentenced for a period up to the maximum sentence for the offense, for a substantive violation, was added in 1990. See Ch. 90-208, § 19, at 1161, Laws of Fla. Until then, for even a substantive violation, a youthful offender could be sentenced to no more than six years, with credit for time served.