author: ROWE, J. PADOVANO, J.,

text:
    Raymond Louis SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-4040.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Rehearing Denied Aug. 9, 2012.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   ROWE, J.

Raymond Louis Smith, appeals his aggregate eighty-year sentence, asserting that the sentence is the functional equivalent of a life sentence without parole and thus violates the constitutional prohibition against cruel and unusual punishment in light of Graham v. Florida, — U.S. —, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010). For the reasons that follow, we affirm.

Smith was convicted in two separate cases for the following eight offenses: two counts of sexual battery, two counts of burglary, one count of aggravated assault, one count of kidnapping, one count of possession of a weapon during the commission of a felony, and one count of possession of burglary tools. The offenses were committed between December 4, 1985, and December 6, 1985, when Smith was seventeen years old.

On April 22, 1986, after pleading nolo contendere, Smith was sentenced to five life sentences without the possibility of parole on the sexual battery, kidnapping, and burglary counts (some running consecutively, others concurrent), as well as three five-year sentences on the aggravated assault, possession of a firearm, and possession of burglary tools counts.

On March 23, 2011, following the Supreme Court of the United States’ decision in Graham, the state filed a motion to correct illegal sentence because Smith had received multiple life sentences for non-homicide offenses committed when he was seventeen years old. After conducting a hearing, the trial court granted the state’s motion and entered an order resentencing Smith (only as to the five counts for which Smith received life sentences) to concurrent forty-year sentences on four of the counts, and another forty-year sentence on the remaining count, to be served consecutively to the other forty-year sentences. Thus, Smith was sentenced to an aggregate of eighty years in prison.

ANALYSIS

Smith asserts that his sentence is the functional equivalent of a sentence of life without the possibility of parole in that it does not provide him with a meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation, and therefore, the sentence violates the prohibition against cruel and unusual punishment under Graham.

In Graham, the Supreme Court of the United States held that a sentence of life without parole for a juvenile offender who commits a non-homicide offense violates the Eighth Amendment. Id. at 2030. The Court concluded that while the state is not required to guarantee the juvenile eventual freedom, it must provide the juvenile some meaningful opportunity to obtain release if the juvenile demonstrates maturity and rehabilitation:

A State is not required to guarantee eventual freedom to a juvenile offender convicted of a nonhomicide crime. What the State must do, however, is give defendants like Graham some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation. It is for the State, in the first instance, to explore the means and mechanisms for compliance. It bears emphasis, however, that while the Eighth Amendment forbids a State from imposing a life without parole sentence on a juvenile nonhomicide offender, it does not require the State to release that offender during his natural life. Those who commit truly horrifying crimes as juveniles may turn out to be irredeemable, and thus deserving of incarceration for the duration of their lives. The Eighth Amendment does not foreclose the possibility that persons convicted of nonhomicide crimes committed before adulthood will remain behind bars for life. It does forbid States from making the judgment at the outset that those offenders never will be fit to reenter society.

Id.

This court has on three occasions considered whether a term-of-years sentence is the functional equivalent of life sentence. First, in Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), we held that a fifty-year sentence was not unconstitutional pursuant to Graham, observing that Graham “specifically limited its holding to only ‘those juvenile offenders sentenced to life without parole solely for a non-homicide offense.’ ” Id. at 646 (quoting Graham, 130 S.Ct. at 2023). We acknowledged, however, “that at some point, a term-of-years sentence may become the functional equivalent of a life sentence.” Id. We concluded that the fifty-year sentence imposed on Thomas was not the functional equivalent of life imprisonment without the possibility of parole because Thomas would be in his late sixties when he was released from prison if he served the entirety of his sentence. Id.

Next, in Gridine v. State, 89 So.3d 909 (Fla. 1st DCA 2011), we determined that a seventy-year sentence was not the “functional equivalent” of a life sentence without the possibility of parole. Id. at 910.

Most recently, in Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012), we held for the first time that a lengthy term-of-years sentence was the functional equivalent of a life sentence without parole, and thus prohibited as cruel and unusual punishment under the authority of Graham. Id. at 45. But see Henry v. State, 82 So.3d 1084, 1089 (Fla. 5th DCA 2012) (concluding that a ninety-year aggregate term-of-years sentence was not the functional equivalent of life sentence under Graham). We observed that if Floyd served the entirety of his combined eighty-year sentence, he would be ninety-seven when he was released. Id. at 46. In addition, because Floyd committed his offenses in 1998, he was required to serve at least eighty-five percent of his sentence. Id. Therefore, even if Floyd “received the maximum amount of gain time, the earliest he would be released is at age eighty-five.” Id. Based on these facts, we concluded that “[t]his situation does not in any way provide [Floyd] with a meaningful or realistic opportunity to obtain release, as required by Graham.” Id.

In this case, we consider whether the sentence Smith received is the functional equivalent of a life sentence without parole and whether the sentence affords Smith with a meaningful opportunity to obtain release. Graham, 130 S.Ct. at 2030. Like the defendant in Floyd, Smith has been sentenced to an aggregate eighty-year term-of-years sentence. However, this case is distinguishable from Floyd because the sentence imposed on Smith provides him with a meaningful opportunity to obtain release by virtue of the significant gain time available to Smith under the applicable statutes.

Because Smith’s sentence was rendered in 1985, unlike the defendant in Floyd, Smith is not required to serve eighty-five percent of his sentence. Instead, the 1985 gain-time statutes apply. In re Commitment of Phillips, 69 So.3d 951, 956 n. 6 (Fla. 2d DCA 2010) (“A prisoner’s ability to earn gain time is based on the statutes in effect at the time of the offense. See Weaver v. Graham, 450 U.S. 24, 33, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (holding that the ex post facto clause applied to changes in gain time statutes).”). Under the 1985 statutes, Smith has the opportunity to earn significant amounts of gain time to dramatically reduce his total sentence served. Section 944.275(4)(a), Florida Statutes (1985), provides that “[a]s a means of encouraging satisfactory behavior, the department shall grant basic gain-time at the rate of 10 days for each month of each sentence imposed.” § 944.275(4)(a), Fla. Stat. (1985) (emphasis added). Applying only the basic gain-time statute to Smith’s eighty-year sentence, assuming no forfeiture of the basic gain time he is entitled to under the statute, Smith would serve a sentence of roughly sixty-three years, making him eligible for release when he is eighty-one years old.

However, in addition to basic gain time, Smith was also eligible to earn twenty days per month in incentive gain time for good behavior. Section 944.275(4)(b), Florida Statutes (1985), provides that “[f]or each month in which a prisoner works diligently, participates in training, uses time constructively, or otherwise engages in positive activities, the department may grant up to 20 days of incentive gain-time, which shall be credited and applied monthly.” § 944.275(4)(b), Fla. Stat. (1985). Considering both the basic and incentive gain time available to him, and assuming no forfeiture of gain time earned, it is evident that Smith was eligible to serve a sentence significantly less than the sixty-three years he would serve if only basic gain time were applied. Because of the gain time available to him, we conclude that Smith has been afforded the requisite “meaningful opportunity to obtain release based upon demonstrated maturity and rehabilitation” mandated by Graham. Accordingly, Smith’s sentences are affirmed.

AFFIRMED.

MARSTILLER, J., concurs; PADOVANO, J., concurring with opinion.

PADOVANO, J.,

concurring.

I join in the decision to affirm the sentences in this case, as I believe that course of action is required by our precedents. However, I have come to the view that resentencing a juvenile offender to a lengthy term of years is not the correct approach to the problem identified in the Graham decision. In my view, the only lawful remedy is to declare unconstitutional section 947.16(6), Florida Statutes, to the extent that it applies to a juvenile offender sentenced as an adult. This would have the effect of making these offenders eligible for parole under the existing parole system.

The Supreme Court held in Graham that a sentence of life without parole for a juvenile offender convicted of a crime other than homicide violates the Eighth Amendment. The Court recognized that there may be some situations in which a juvenile offender in this class may be required to serve a life sentence but made it clear that the possibility of release cannot be foreclosed at the time of the sentence. As the Court explained, the state must give the defendant a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Graham v. Florida, — U.S. —,—, 130 S.Ct. 2011, 2030, 176 L.Ed.2d 825 (2010).

The response to Graham in this court has been to determine whether a resen-tencing to a term of years without parole is the functional equivalent of a life sentence. In my view, this approach misses the mark entirely. If we conclude, as we did in Floyd v. State, 87 So.3d 45 (Fla. 1st DCA 2012), that 80 years is too much, we are saying in essence that the defendant will not have a meaningful portion of his life left by the time he is released. In contrast, if we conclude as we did in Thomas v. State, 78 So.3d 644 (Fla. 1st DCA 2011), that 50 years is not too much, we are saying that the defendant will still be able to live a reasonable portion of his life outside of prison by the time he is released. But the question is not whether the defendant will have a significant part of his life remaining at the end of the sentence; rather, it is whether the defendant will have a reasonable opportunity to show that he has been rehabilitated during the course of the sentence and is therefore deserving of release at some point before the sentence expires.

This objective is one that could never be achieved by judges, at least not under our system. Florida judges have no authority to impose indeterminate sentences, as judges do in some other states. Moreover, a Florida judge has only a limited power to modify a sentence once it has been imposed. See Fla. R.Crim. P. 3.800(c) (limiting the power to modify a sentence to a period of 60 days after the imposition of the sentence or mandate by the appellate court). In Florida, the sentencing judge has no authority to classify an inmate, to decide where he or she will be housed, or to prescribe a treatment program or a particular course of rehabilitation. Florida judges do not monitor the progress of inmates once they are committed. They have no way of distinguishing inmates who are incorrigible from those who have been truly rehabilitated. If a juvenile offender could somehow demonstrate the kind of maturity and rehabilitation the Court was referring to in Graham, a Florida judge would be powerless, in any event, to afford that juvenile a “meaningful opportunity to obtain release.”

In my view, the only way the courts can carry out the mandate of the Graham decision is to ensure that a juvenile offender is eligible for parole or some equivalent of parole. On this point, I agree with Judge Wolfs dissent in Gridine v. State, 89 So.3d 909 (Fla. 1st DCA 2011). The defendant in that case was resentenced after Graham to a 70-year term. The court held that the sentence did not violate the holding in Graham, but Judge Wolf dissented, with the following observation:

... [t]he only logical way to address the concerns expressed by the United States Supreme Court in Graham is to provide parole opportunities for juveniles. The Legislature, not the judiciary, is empowered to create a provision for parole. Absent the option of parole, I am at a loss on how to apply the Graham decision to a lengthy term of years. Is a 60-year sentence lawful, but a 70-year sentence not? Regardless, it is clear to me that appellant will spend most of his life in prison. This result would appear to violate the spirit if not the letter of the Graham decision. I, therefore, must respectfully dissent. However, in doing so, I note that absent a legislative solution, I look for guidance from either the United States or Florida Supreme Courts.

I fully agree with Judge Wolfs assessment of the problem but I think there is a workable solution even in the absence of legislation. Although legislative action would have been preferable, it is not absolutely necessary. If parole is the only effective solution to the constitutional deficiency identified in Graham, and I believe that it is, the court can cure the deficiency by addressing the constitutional validity of the statute that places a limitation on the eligibility for parole.

That was precisely the approach taken by the Louisiana Supreme Court in State v. Shaffer, 77 So.3d 939 (La.2011). There, the court reversed a sentence of life without parole for a juvenile offender, on the ground that the sentence was invalid under Graham. However, the court did not order resentencing. Instead, the court simply held that the Louisiana statute precluding parole eligibility for anyone sentenced to life in prison could not be applied to juvenile offenders. The effect of the decision was to reinstate the life sentence but to modify it in such a way that the offender would be eligible for parole. The court did not order the release of the offender. In fact, the court emphasized that the decision it had made would not guarantee that he would ever be released. To the contrary, the decision merely ensured that the offender would be entitled to consideration by the Parole Commission. The availability of parole, the court concluded, would bring the sentence into compliance with the Graham decision.

Fewer inmates are eligible for parole consideration in Florida than in Louisiana, but the reasoning in the Louisiana Supreme Court’s decision in Shaffer is applicable here, as well, and it is no less compelling. Florida still has a Parole Commission, and its members continue to meet regularly to set presumptive parole release dates for qualifying inmates. Thus, the system that is needed to bring our state into compliance with the Graham decision is already in place. The only impediment is that section 947.16(6), Florida Statutes provides that inmates sentenced after the effective date of chapter 82-171, Laws of Florida, shall not be eligible for parole.

The class of eligible inmates in Florida depends on the date of the conviction and sentence, whereas the class of eligible inmates in Louisiana is based on the kind of sentence the court has imposed. But this is not a material difference. If the constitutional deficiency can be cured in Louisiana by striking a statutory provision that precludes parole eligibility for a life sentence, it can also be cured in Florida by striking a statutory provision that precludes parole eligibility for inmates sentenced after a particular date.

The remedy in Shaffer of reinstating parole eligibility will not necessarily result in an earlier release date. For example, if the trial judge had resentenced the defendant in this case to life in prison with the proviso that he would be eligible for release on parole, the defendant could actually serve life in prison. To say that the defendant is eligible for parole is certainly not a guarantee that he will be paroled. The value of the approach taken in Shaffer is that it gives the defendant exactly the kind of opportunity the Eighth Amendment requires under the rule in Graham.

In contrast, the term of years sentences we have approved in this case do not afford the defendant that opportunity. He will be released at a fixed point in the future, and the timing of his release will have no connection with his behavior in prison or any efforts he might make to rehabilitate himself. He might be able to establish his rehabilitation next week, next month, or next year, but it will make no difference. We have assumed that the Graham problem was solved by the new 40-year consecutive sentences, but I think the fallacy in this assumption is that the problem is not one that could ever be solved by the sentence itself. It is a problem that requires individual evaluation by professionals working in our correctional system.

For these reasons, I believe that the Florida courts have no alternative but to declare section 947.16(6) unconstitutional to the extent that it applies to a juvenile offender sentenced as an adult. In my view, this is the only way to ensure compliance with the mandate of the Graham decision. It is true that Graham is limited to life sentences without parole, but the reasoning of the decision would apply with equal force to a sentence for a term of years without parole. And I believe that it is only a matter of time before we will be forced to conclude that it is impossible to say how long that term must be.

Judge Griffin succinctly expressed the futility of this exercise in Henry v. State, 82 So.3d 1084 (Fla. 5th DCA 2012). There, the court held that Graham was limited to a term of life without parole and that it did not therefore require the court to invalidate a lengthy sentence to a term of years without parole. As Judge Griffin explained,

If we conclude that Graham does not apply to aggregate term-of-years sentences, our path is clear. If, on the other hand, under the notion that a term-of-years sentence can be a de facto life sentence that violates the limitations of the Eighth Amendment, Graham offers no direction whatsoever. [Footnote omitted] At what number of years would the Eighth Amendment become implicated in the sentencing of a juvenile: twenty, thirty, forty, fifty, some lesser or greater number? Would gain time be taken into account? Could the number vary from offender to offender based on race, gender, socioeconomic class or other criteria? Does the number of crimes matter? There is language in the Graham majority opinion that suggests that no matter the number of offenses or victims or type of crime, a juvenile may not receive a sentence that will cause him to spend his entire life incarcerated without a chance for rehabilitation, in which case it would make no logical difference whether the sentence is “life” or 107 years. Without any tools to work with, however, we can only apply Graham as it is written. If the Supreme Court has more in mind, it will have to say what that is.

Id. at 1089.

I agree that the courts will never be able to draw a line between a sentence to a term of years that offends the Eighth Amendment and one that does not. Even if we could arrive at a set limit for the length of the sentence itself, we would be forever drawing distinctions between the ages of juvenile offenders at the time of the offenses, the various sentence structures and the various provisions for gain time. In the end, none of this would achieve the goal of affording the juvenile an opportunity to show that he or she is worthy of release.

As Judge Griffin has pointed out, there is language in the majority opinion in Graham suggesting that a sentence for a very long term of years without the possibility of parole may be no better than a sentence to life without parole. While I agree with this analysis, I do not think that Florida judges must await further guidance from the United States Supreme Court to resolve the problems that are presently before us.

The principle announced in Graham is clear, and it is apparent to me that it would apply to a sentence for a term of years in the same way that it applies to a sentence of life. We can apply the spirit of the Graham decision, as Judge Wolf put it, by declaring invalid the law restricting parole eligibility as it applies to this class of offenders. The Eighth Amendment requires the possibility of release, and it seems to me that that possibility can be afforded only by a system of parole eligibility. It follows that a statute restricting parole eligibility violates the Eighth Amendment as applied to juvenile offenders.

Were I not bound by the precedents of this court, I would hold that section 947.16(6) is unconstitutional, to the extent that it removes parole eligibility for juvenile offenders who have been sentenced as adults.

      . In the answer brief, the state references records of the Department of Corrections reporting Smith’s prospective release date of May 25, 2032 (reducing Smith’s total projected time served to 46 years) and demonstrating that Smith has forfeited a total 2290 days of gain time while serving his sentence. Because these matters are outside the record, they may not be considered by this court. See, e.g., Stewart v. State, 459 So.2d 426, 428 n. 3 (Fla. 1st DCA 1984) ("It would be patently improper for this court to consider evidence which was not introduced for consideration in the lower court proceeding.”). However, we note that the procedural posture of this case presents an interesting question regarding the proper method for the state to introduce the current status of the defendant’s sentence where defense counsel preserves the argument of "functional equivalency” under Graham through a contemporaneous objection at sentencing rather than by means of a Rule 3.800(b) motion. See Fla. R.App. P. 9.140(e) ("A sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sentencing; or (2) by motion pursuant to Florida Rule of Criminal Procedure 3.800(b).”); Jackson v. State, 983 So.2d 562, 569 (Fla.2008).

      . Our decisions in Floyd, Thomas, and the present case expressly and directly conflict with the decision by the Fifth District in Henry. The Fifth District held in Henry that a sentence for a term of years, no matter how long, does not violate the mandate of Graham. In contrast, our decisions hold that a sentence to a term of years without parole violates Graham if it is the functional equivalent of a life sentence.


source: Caselaw Access Project

author: MONACO, J. COHEN, J.,

license: Public Domain

text:
    Richard HACKETT, Appellant, v. GRAND SEAS RESORT OWNER’S ASSOCIATION, INC., Appellee.
    No. 5D11-1836.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      Jessie L. Harrell and Rebecca Bowen Creed, of Creed & Gowdy, P.A., Jacksonville, for Appellant.
    Diane H. Tutt, of Conroy, Simberg, Ga-non, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellee.
   MONACO, J.

The sole issue in this appeal is whether the trial court erred in granting a final summary judgment in favor of Grand Seas Resort Owner’s Association, Inc. (“Grand Seas”) in a negligence action brought by one of the time-share owners at the resort, Richard Hackett. The summary judgment was based on a “release” (actually an exculpatory clause), executed by Mr. Hackett when he began use of a unit within the resort. Because the clause is ambiguous, however, we reverse.

Grand Seas is the unit owners’ association for a condominium. Mr. Hackett alleges that while sitting in a chair located on the patio of unit 1036, one of the chair legs collapsed, causing him to fall and to consequently suffer bodily injuries. He further alleges that Grand Seas breached its common law duty owed to him by creating an unreasonably dangerous condition and by allowing that unreasonably dangerous condition to exist on its property. Grand Seas responded with a host of affirmative defenses, only one of which is pertinent to the outcome of the case.

Eventually Grand Seas moved for summary judgment based on the exculpatory clause contained in a document that had been executed by Mr. Hackett prior to his stay. It appears that Mr. Hackett signed a “Guest License Agreement” with Grand Seas Resort that contained the following provision that is important to this appeal:

Notice to Guest: This property is privately owned. Management reserves the right to refuse service to anyone, and will not be responsible for accidents or injury to guest or for the loss of money, jewelry or valuables of any kind. Guest authorizes the use of credit card on file for any and all unpaid charges.

Grand Seas argued that this exculpatory clause was enforceable because it was clear, unambiguous and unequivocal. The trial court agreed, citing this court’s opinion in Cain v. Banka, 932 So.2d 575 (Fla. 5th DCA 2006), although indicating some misgivings about the determination.

Initially, we should point out that while there is a distinction between a post-claim “release” and a pre-claim “exculpatory clause” they both attempt to shift the ultimate responsibility for a negligent injury away from the person causing the injury. They are, therefore, generally underpinned by the same principles of law.

Exculpatory clauses purport to deny recovery in advance by an injured party for damages caused by a person responsible in negligence for his or her injury. See Kitchens of the Oceans, Inc. v. McGladrey & Pullen, LLP, 832 So.2d 270 (Fla. 4th DCA 2002). They are disfavored and thus enforceable only to the extent that the intention to be relieved from liability is made clear and unequivocal. Cain, 932 So.2d at 578. In order to be effective the language must be “so clear and understandable that an ordinary and knowledgeable person will know what he is contracting away.” Id.

In Cain we continued to reject the need for express language referring to release of the defendant for “negligence” or “negligent acts” in order to render a release effective to bar a negligence action. See also Greater Orlando Aviation Auth. v. Bulldog Airlines, Inc., 705 So.2d 120, 122 (Fla. 5th DCA 1998). As noted in that case, all the other districts appear to take a “bright line” position requiring such express language. Cain, 932 So.2d at 578.

The point of Cain, however, was not to sanction sloppy or ambiguous language within an exculpatory clause. Rather, it was simply to point out that we ought not to be hidebound by requiring the use of a specific word like “negligent,” in order to enforce a release from liability. Instead this court will look to language that clearly indicates that if one signs the document, one will be giving up certain specific defined rights, most ordinarily the right to seek compensation for injuries caused by the negligence of the person released. Better practice is probably to use the words, “negligent” or “negligence” in drafting an exculpatory clause. Certainly the use of those magic words may well be the tipoff that one accepting this condition will be waiving or releasing the right to seek financial compensation from the party being released. Those words, however, are not the only ones that will suffice. In the present case, however, the level of ambiguity is simply too great to allow enforcement of the clause.

A consideration of the clause in the Guest License Agreement reflects first that the word, “accident,” is too ambiguous to support the exculpation of negligence asserted by Grand Seas. Accident does not equate to negligent or negligence. An accident may simply be the result of bad luck or clumsiness, or it might refer to an injury caused by a third party who is not a signatory to the agreement. For example, two guests might bump into each other in the parking lot and do damage to a vehicle. Negligence, on the other hand, is a basis for legal liability and denotes the violation of a duty to use reasonable care. An accident is not the same thing.

Secondly, we note that the organization being protected by the exculpatory clause is the “Management.” Management, however, is never defined within the body of the document. There is something called “Grand Seas Resort” that is listed in the first paragraph, and whose representative actually signed the Guest License Agreement containing the clause, but nowhere is the appellee, Grand Seas Resort Owner’s Association, recognized, nor is it specifically identified with the term, “Management.” In addition, the words, “Management ... will not be responsible for accidents or injury to guest or for the loss of money, jewelry or valuables of any kind,” simply does not convey that one will be releasing the “Management” from damages resulting from an injury caused in whole or in part by the Management, whoever they are.

Thus, we conclude that simply saying that the Management will not be responsible for accidents or injury is not sufficiently precise to amount to an enforceable exculpatory clause under the facts of the present case. Accordingly, we reverse the summary judgment in favor of the appellee and remand for further proceedings.

REVERSED and REMANDED.

JACOBUS J., concurs.

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

COHEN, J.,

concurring specially.

The majority opinion correctly sets out the controlling law within this district and I agree the release in this case was not clear, unambiguous, and unequivocal. For the reasons set out in my concurring opinion in Give Kids the World, Inc. v. Sanislo, — So.3d —, 2012 WL 1645607 (Fla. 5th DCA 2012), I believe the better rule of law would require that such releases expressly refer to the release for acts of negligence, which puts an average person of ordinary intelligence on notice of the waiver of a party’s duty of due care.

      . We recognize that the lack of identification of the body being released was only obliquely raised by the appellant below, and in fairness to the trial judge, was not specifically argued before him. Given the ambiguity of the clause resulting from the use of the word, "accident,” however, we felt it appropriate to point out the lack of precision in this regard, as well.


author: DAVIS, Judge.

text:
    Reginald L. BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5135.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.

      James Marion Moorman, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   DAVIS, Judge.

Reginald Bryant challenges his conviction and sentence for felony petit theft. Because the trial court did not make certain statutorily required written findings when sentencing Bryant, we reverse his sentence and remand for resentencing.

The ■ State originally charged Bryant with robbery and felony petit theft, but the jury returned a verdict of guilty of the lesser included charge of petit theft in count one and guilty of petit theft as charged in count two. The trial court sentenced Bryant to time served in count one and to five years’ incarceration on count two.

On appeal, Bryant argues that because his guidelines scoresheet score was 17.1 sentencing points, his five-year sentence was an upward departure for which the trial court should have provided valid written departure reasons but did not. Bryant preserved this argument in a Florida Rule of Criminal Procedure 3.800(b)(2) motion, which was orally denied below.

Section 775.082(10), Florida Statutes (2009), provides as follows:

If a defendant is sentenced for an offense committed on or after July 1, 2009, which is a third degree felony but not a forcible felony as defined in s. 776.08, and excluding any third degree felony violation under chapter 810, and if the total sentence points pursuant to s. 921.0024 are 22 points or fewer, the court must sentence the offender to a non[-]state prison sanction. However, if the court makes mitten findings that a non[-]state prison sanction could present a danger to the public, the court may sentence the offender to a state correctional facility pursuant to this section.

(Emphasis added.) See also Fla. R.Crim. P. 3.704(d)(29) (“If the total sentence points equal 22 or less, the court must sentence the offender to a non[-]state prison sanction unless it makes written findings that a non[-]state prison sanction could present a danger to the public.” (emphasis added)).

Here, the parties agree and the record indicates that the trial court sentenced Bryant to a five-year prison sentence— despite the fact that he only scored 17.1 sentencing points — without making any written findings to support the upward departure. The State, however, argues that the record supports a finding that sentencing Bryant to a non-state prison sentence would have presented a pecuniary danger to the public based on his prior record, which includes several theft convictions.

We agree with the State that the “danger to the public” contemplated by section 775.082(10) may be a pecuniary one. See McCloud v. State, 55 So.3d 643, 644 (Fla. 5th DCA 2011) (“While McCloud may not be a physically violent offender, he is apparently willing to steal anything and everything. We believe that ‘danger may, at least in some cases, encompass pecuniary or economic harm.’ ” (quoting United States v. Reynolds, 956 F.2d 192, 192-93 (9th Cir.1992))). We also agree that the instant record indicates that such was the basis for the trial court’s imposition of a prison sanction here. However, the plain language of the statute requires the trial court to make “‘written findings that a non[-]state prison sanction could present a danger to the public” before it “may sentence the offender to a state correctional facility.” § 775.082(10) (emphasis added). And the trial court failed to do so here.

As such, we reverse Bryant’s sentence and remand for resentencing, at which the trial court may again impose a prison sanction if it makes the proper written findings. See generally State v. Collins, 985 So.2d 985, 989 (Fla.2008) (reversing habitual felony offender designation, remanding for resentencing, and explaining “that a resentencing must proceed as an entirely new proceeding and that a resentencing should proceed de novo on all issues bearing on the proper sentence” (citation omitted) (internal quotation marks omitted)). We note that this is not a case in which the trial court provided reasons for a departure sentence that on appeal were determined to be invalid departure reasons. See Shull v. Dugger, 515 So.2d 748, 750 (Fla.1987) (“[A] trial court may not enunciate new reasons for a departure sentence after the reasons given for the original departure sentence have been reversed by an appellate court.”). Rather, the trial court failed to specify in writing its reasons for departing. As such, “the underlying reason for [the] decision in Shull — preventing after-the-fact justifications for a previously imposed departure sentence — is not implicated here.” Collins, 985 So.2d at 992.

Finally, we recognize that in Goldberg v. State, 76 So.3d 1072, 1074 (Fla. 5th DCA 2011), the Fifth District stated as follows:

The trial court may well have been able to correct its initial failure to make the necessary written findings required by section 775.082(10) by doing so in response to Goldberg’s rule 3.800(b)(2) motion. However, it failed to do so. On remand, the trial court must sentence Goldberg to a non[-]state prison sanction.

(Citation omitted.) To the extent that our opinion here conflicts with Goldberg, we certify conflict.

Reversed and remanded.

KELLY and KHOUZAM, JJ., Concur.

      . On appeal, Bryant does not raise any issues related to double jeopardy, and we have not considered any.


author: SILBERMAN, Chief Judge.

text:
    Lawrence GERACI, Jr., as Personal Representative of the Estate of Mary J. Geraci, Deceased, Appellant, v. SUNSTAR EMS, an unregistered fictitious name of Pinellas County Emergency Medical Services Authority, and Agency for Health Care Administration, Appellees.
    No. 2D11-1234.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.
    Russell R. Winer, St. Petersburg, for Appellant.
    No appearance for Appellees.
   SILBERMAN, Chief Judge.

Lawrence Geraci, Jr., as personal representative of the Estate of Mary J. Geraci, seeks review of the order determining that the deceased’s condominium is not a “homestead” exempt from forced sale under article X, section 4 of the Florida Constitution. The question before this court is whether a condominium that is subject to a long-term leasehold may qualify as a homestead to be protected from forced sale to pay the creditors of the deceased owner. We answer this question in the affirmative and, therefore, reverse the trial court’s order.

The property at issue is a condominium in the “On Top of the World” development in Pinellas County. The trial court determined that the condominium is the subject of a 100-year lease agreement from 1976, and the decedent owned the remaining term on the lease. Upon her death, the appellees filed claims against the decedent’s estate as creditors. Geraci filed a petition to determine whether, under article X, section 4(a)-(b) of the Florida Constitution, the condominium qualified as a homestead and was therefore exempt from a forced sale to pay the creditors’ claims. The trial court determined that the condominium did not qualify as a homestead because it is a leasehold and not a fee simple interest in land. Geraci challenges this ruling on appeal.

There are three contexts in which the homestead has significance in Florida law: (1) taxation, (2) exemption from forced sale, and (3) descent and devise. Snyder v. Davis, 699 So.2d 999, 1001-02 (Fla.1997). The applicable context for the homestead in this ease is the exemption from forced sale, which is set forth in article X, sections 4(a)-(b) of the Florida Constitution.

Those provisions provide as follows:

(a) There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following property owned by a natural person:
(1) a homestead, if located outside a municipality, to the extent of one hundred sixty acres of contiguous land and improvements thereon, which shall not be reduced without the owner’s consent by reason of subsequent inclusion in a municipality; or if located within a municipality, to the extent of one-half acre of contiguous land, upon which the exemption shall be limited to the residence of the owner or the owner’s family;
(2) personal property to the value of one thousand dollars.
(b) These exemptions shall inure to the surviving spouse or heirs of the owner.

According to these provisions, a homestead owner’s heirs are entitled to claim an exemption from its forced sale to pay creditors of the decedent owner’s estate. The question in this case is whether the leasehold interest in the condominium qualifies as a “homestead” for purposes of this exemption.

Article X, section 4(a) does not distinguish between the different kinds of ownership interests that are entitled to the homestead exemption against forced sale. In re Alexander, 346 B.R. 546, 549-50 (Bankr.M.D.Fla.2006); Cutler v. Cutler, 994 So.2d 341, 344 (Fla. 3d DCA 2008); S. Walls, Inc. v. Stilwell Corp., 810 So.2d 566, 571 (Fla. 5th DCA 2002). And the Florida Supreme Court has long since adopted the general rule that a fee simple estate is not necessary to this exemption. See Bessem er Props., Inc. v. Gamble, 158 Fla. 38, 27 So.2d 832, 833 (1946); Coleman v. Williams, 146 Fla. 45, 200 So. 207, 209 (1941). In fact, “any beneficial interest in land” may entitle its owner to the exemption. Bessemer Props., Inc., 27 So.2d at 833.

In considering the exemption from forced sale, a court must instead “focus on the debtor’s intent to make the property his homestead and the debtor’s actual use of the property as his principal and primary residence.” In re Dean, 177 B.R. 727, 729 (Bankr.S.D.Fla.1995). When a lessee’s interest in a leasehold estate includes the right to use and occupy the premises for a long term and the lessee has made the residence his principal and exclusive residence, such an interest is entitled to Florida’s homestead exemption from forced sale. Id. at 729-30; see also In re McAtee, 154 B.R. 346, 348 (Bankr.N.D.Fla.1993) (finding a long-term lease to be subject to the exemption from forced sale because it constituted an interest in real property and was more than a “simple possessory interest”); S. Walls, 810 So.2d at 572 (finding a co-op to be subject to the exemption from forced sale because “a coop owner owns the unit, pays valuable consideration for it, and has the right to the exclusive use and possession of it for the duration of the lease”). This construction of the homestead exemption from forced sale is consistent with “important public policy considerations such as promoting the stability and welfare of the state by encouraging property ownership and the independence of its citizens by preserving a home where a family may live beyond the reaches of economic misfortune.” In re McAtee, 154 B.R. at 347-48.

In this case, the trial court declined to apply the homestead exemption to the condominium based on its determination that the homestead protection at issue is actually that of descent and devise. The court appeared to recognize that the condominium may qualify as homestead for purposes of the homestead exemption from forced sale but explained that, in the context of descent and devise, the supreme court has held that the property interest must be a fee simple interest in land. See In re Estate of Wartels, 357 So.2d 708, 710 (Fla.1978) (holding that a co-op is not a homestead for purposes of descent because it is not “an interest in realty”).

The trial court’s decision is erroneous because the homestead protection at issue in this case is not that of descent and devise. Article X, section 4(c) prohibits the devise of the homestead if the owner is survived by a spouse or minor child. In this case, there is no question of a surviving spouse or minor child’s right to prohibit descent or devise. Instead, this case involves the application of the homestead exemption from forced sale as set forth in article X, section 4(a)(1), to satisfy the appellee creditors’ claims. Cf. Cutler, 994 So.2d at 344 (analyzing whether property held in trust that was devised to an heir constituted homestead property for purposes of determining whether it was protected from forced sale under article X, section 4(a)(1)). Thus, Wartels is inappo-site, and the general rule that a fee simple estate is not necessary to the forced sale exemption applies. See Dean, 177 B.R. at 730; S. Walls, 810 So.2d at 572.

We recognize that at least two courts have refused to so distinguish Wartels. See In re Lisowski, 395 B.R. 771, 777 (Bankr.M.D.Fla.2008) (concluding that, under Wartels, the homestead exemption from forced sale applies only to improved land or real property that is owned by the debtor); Phillips v. Hirshon, 958 So.2d 425, 430 (Fla. 3d DCA 2007) (holding that a co-op did not qualify for homestead exemption for purposes of descent and devise because it was not an interest in realty under Wartels). However, we do not find the reasoning of these cases persuasive because they do not adequately reconcile the supreme court’s decision in Wartels with the court’s jurisprudence extending the exemption from forced sale to other beneficial interests in land and not limiting the exemption to a fee simple interest.

In conclusion, the trial court erred in determining that the decedent’s condominium was not a homestead for purposes of the exemption from forced sale because it was not a fee simple interest in land. Accordingly, we reverse the denial of Geraci’s petition to determine homestead status with directions for the court to afford the condominium homestead status under article X, section 4 of the Florida Constitution in relation to the creditor appellees’ claims.

Reversed and remanded.

KELLY and BLACK, JJ., Concur.

      . That provision provides as follows:
      (c) The homestead shall not be subject to devise if the owner is survived by spouse or minor child, except the homestead may be devised to the owner’s spouse if there be no minor child. The owner of homestead real estate, joined by the spouse if married, may alienate the homestead by mortgage, sale or gift and, if married, may by deed transfer the title to an estate by the entirety with the spouse. If the owner or spouse is incompetent, the method of alienation or encumbrance shall be as provided by law.

        See also §§ 732.401(1) (statutory homestead exemption pertaining to descent), .4015 (statutory homestead exemption pertaining to devise), Fla. Stat. (2009).


author: PER CURIAM.

text:
    Walter D. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-2033.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Rehearing Denied Aug. 17, 2012.
    Walter D. Walker, East Palatka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Brooks v. State, 969 So.2d 238 (Fla.2007).

DAMOORGIAN, CIKLIN and GERBER, JJ., concur.


text:
    Antoine SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6692.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Rehearing Denied Aug. 9, 2012.

      Antoine Smith, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant filed a rule 3.800(a) motion raising two claims. We affirm the first claim without discussion. However, because his second claim appears to have merit, we reverse.

In his second claim, the appellant argues that his 30-year sentence for attempted second-degree murder is illegal because attempted second-degree murder is a second-degree felony punishable by a maximum of 15 years. Attempted second-degree murder is indeed a second-degree felony punishable by up to 15 years’ imprisonment. See §§ 775.084(2); 777.04(4)(c); 775.082(3)(c), Fla. Stat. (2006); McFarland v. State, 794 So.2d 763 (Fla. 1st DCA 2001). However, the record indicates that the lowest permissible sentence on the appellant’s criminal punishment code scoresheet is 337.8 months, or 28.15 years’ imprisonment. When the lowest permissible sentence on a scoresheet exceeds the statutory maximum, it is the lowest permissible sentence that must be imposed. See Ricks v. State, 36 So.3d 810 (Fla. 1st DCA 2010). The 30-year sentence thus exceeds both the statutory maximum sentence and the lowest permissible sentence on his scoresheet and therefore constitutes an illegal sentence. Although it appears from the record that the appellant agreed in a negotiated plea agreement to the 30-year sentence for the attempted second-degree murder conviction, a defendant cannot plead to an illegal sentence. See Taylor v. State, 899 So.2d 1191 (Fla. 1st DCA 2005).

We accordingly reverse and remand for the trial court to either attach the portion of the record that conclusively refutes the appellant’s claim that his 30-year sentence for attempted second-degree murder is illegal, to resentence the appellant to a legal sentence, or to allow the state to withdraw from the plea agreement. See Bruno v. State, 837 So.2d 521, 523 (Fla. 1st DCA 2003) (stating that “ ‘[w]hen a sentence is illegal, and such a sentence was the product [as here] of a negotiated plea agreement, the state has the option of either agreeing to the appellant’s resentencing, or withdrawing from the plea agreement and proceeding to trial on the original charges.”) (citing Williams v. State, 650 So.2d 1054, 1055 (Fla. 1st DCA 1995)).

AFFIRMED IN PART; REVERSED IN PART AND REMANDED.

WOLF, ROWE, and SWANSON, JJ., concur.


text:
    Joseph ATKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2961.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Rehearing Denied Aug. 9, 2012.
    Joseph Atkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, LEWIS, and THOMAS, JJ., concur.


author: MORRIS, Judge.

text:
    Aimee OSMULSKI, Appellant, v. OLDSMAR FINE WINE, INC., a/k/a Luekens Big Town Liquor, Inc., d/b/a Lueken Liquor, Appellee.
    No. 2D10-5962.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.

      Celene H. Humphries of Brannock & Humphries, Tampa, and Justin W. Pimen-ta of Abrahamson & Uiterwyk, Tampa, for Appellant.
    Scott A. Cole and Anne C. Sullivan of Cole Scott & Kissane, P.A., Miami, for Appellee.
   MORRIS, Judge.

Aimee Osmulski appeals a final judgment entered in a premises liability action against Oldsmar Fine Wine, Inc. (OFW). The action arose after Osmulski slipped and fell at a store owned by OFW. After a jury trial, wherein the jury determined Osmulski was 65% liable and OFW was 35% liable, the trial court entered final judgment in Osmulski’s favor in an amount of $45,128.84 plus an additional $39,612.02 for costs.

On appeal, Osmulski contends that the trial court erred as a matter of law in denying her request for a rebuttable presumption jury instruction because video evidence of the incident was automatically deleted from OFW’s video surveillance cameras and, therefore, was not available to be discovered. She requested an instruction either that OFW was negligent or that the missing video would .be unfavorable to OFW. The trial court declined to give the requested jury instruction and ruled that there could be no spoliation of this evidence because Osmulski had not asked OFW to preserve it.

Based on the facts of this case, we hold that the trial court correctly determined that there was no spoliation of evidence, and we therefore affirm the final judgment. However, we write to address the law on the issue of spoliation of evidence.

I. Background

Osmulski shattered her right wrist after slipping and falling in OFW’s store. Os-mulski underwent two surgeries to repair her wrist, and experts testified at trial that additional surgeries may be needed in the future. Within a week of the incident, Osmulski and OFW’s insurance carrier communicated several times. Osmulski gave a recorded statement to an agent of OFW’s insurance carrier. When asked how the incident happened, Osmulski stated that she slipped about two steps beyond the front door mat when she entered OFW’s store. Osmulski further explained that the mat was wet because it had been raining that day. Osmulski informed OFW’s insurance carrier about her first surgery and about how much time she had missed from work as a result of her injury. The insurance carrier told Osmulski that after she completed her medical treatment, the insurance carrier would be able to follow up on her claim for pain and suffering, medical bills, and anything else. The insurance carrier also sent Osmulski a letter indicating that it was gathering documentation “to investigate the liability aspects of your fall,” and it directed Osmul-ski to “forward any medical bills that your insurance has not taken care of.”

Ultimately, the insurance carrier failed to settle Osmulski’s claim. Osmulski filed suit, and a few months thereafter, she served a request to produce any video surveillance recordings of the premises from the day of the incident. OFW responded that it had no such surveillance videos.

In February 2009, Osmulski deposed OFW’s principal on this and other issues. At his deposition, OFW’s principal testified that, to the best of his knowledge, all sixteen of his surveillance cameras were fully operational on the day in question and would have recorded the incident. He also testified that the video surveillance system only retains video surveillance recordings for sixty days but that there was no standard procedure for storing the recordings. He admitted that he could have made a copy of the recordings before they were automatically deleted and said that he had done so in the past for the police when his store had been robbed. The reasons he provided for not making copies in this case were that his insurance agent told him Osmulski was seeking only her medical bills and that no one ever asked him to preserve the video recordings. He said he never even looked at the videos from this case. Additionally, there was no evidence to confirm that any video surveillance recordings were actually made or, if made, what they actually contained.

Although OFW’s principal admitted that he had been involved in an earlier slip and fall case and, in fact, had been deposed in that case, he was unable to provide much information about it. Eventually, Osmul-ski obtained discovery related to that earlier case, and she learned that OFW’s principal testified that he personally watched the video recordings in that case because he wanted to see if the plaintiff had been running upon entry into the store.

Shortly before the case was scheduled for trial, Osmulski filed a motion asserting OFW’s intentional spoliation of the video surveillance recording of the incident and customer receipts for the day of the incident. Osmulski argued that OFW failed to preserve these items despite knowing that an insurance claim had been filed. Osmulski further argued that these items were necessary to prove her case that store patrons had tracked rainwater onto the store floor and that OFW had not removed the water or posted any kind of warning of the wet area. She stated that these items were also necessary to disprove OFW’s assertions that she ran or walked too quickly into the store or that she was impaired by drugs and/or alcohol.

Osmulski requested various remedies, one of which was a jury instruction that due to the absence of the video surveillance recordings, there was at least a presumption that they would have been unfavorable to OFW. Osmulski also requested an adverse inference jury instruction that OFW was negligent. The trial court denied the motion.

Subsequently, Osmulski filed motions for sanctions against OFW and OFW’s counsel for the alleged intentional destruction of the video. The trial court denied the first motion, and although the trial court initially deferred ruling on the portion of the second motion dealing with the spoliation argument, the trial court ultimately concluded at trial that Osmulski was not entitled to any relief for OFW’s spoliation of the video surveillance recordings because she never asked OFW to preserve it.

II. Analysis

A. Standard of review

The parties dispute the appropriate standard of review in this case. Because the issue of whether Osmulski was entitled to a spoliation jury instruction was decided by the trial court as an issue of law, we apply the de novo standard of review. See Sebring Assocs. v. Aumann, 673 So.2d 875, 876 (Fla. 2d DCA 1996) (providing that appellate court will apply de novo review to a trial court’s ruling on a question of law).

B. OFW did not have a duty to preserve evidence in this case because there was no written request to do so.

In order for a court to effect any sort of remedy for a party’s alleged spoliation of evidence, the court must determine whether: (1) “the evidence existed at one time,” (2) “the spoliator had a duty to preserve the evidence, and” (3) “the evidence was crucial to an opposing party[’s] being able to prove its prima facie case or a defense.” Golden Yachts, Inc. v. Hall, 920 So.2d 777, 781 (Fla. 4th DCA 2006) (citing Jordan ex rel Shealey v. Masters, 821 So.2d 342, 347 (Fla. 4th DCA 2002)). Here, the trial court based its refusal to give Osmulski’s requested instructions on the second factor: whether OFW had a duty to preserve the evidence.

We agree with the trial court’s determination that no such duty existed. The trial court relied on Golden Yachts, Inc., 920 So.2d 777, for the conclusion that Osmulski was not entitled to a spoliation jury instruction because she failed to request that the video recordings be preserved. Os-mulski argues that even though she did not make such a request, OFW had a duty to preserve the evidence because her claim of negligence was reasonably foreseeable. Indeed, the court in Golden Yachts, Inc. cited American Hospitality Management Co. of Minnesota v. Hettiger, 904 So.2d 547 (Fla. 4th DCA 2005), which clearly states that where a defendant has evidence within its control, it can “be charged with a duty to preserve evidence where it could reasonably have foreseen the [plaintiffs] claim.” Id. at 549. Thus, it could be argued that in the absence of a written request to preserve such evidence, as long as a plaintiffs claim is reasonably foreseeable, a formal request to preserve the evidence is not required in order for a plaintiff to be entitled to a jury instruction on spoliation.

We observe that in recent years, the use of digital video technology has significantly increased in our communities. Yet there are many uncertainties regarding this video technology as it relates to the resolution of legal disputes. The recording systems may vary greatly in quality as well as methodology. Some recordings may be erased automatically, and some may be erased manually. Some recordings may not be in the immediate control of the ultimate defendant. The recordings may or may not contain information that is critical to the civil action. Given this myriad of uncertainties, it would not be fair to businesses or homeowners to require them to preserve video evidence in the absence of a written request to do so. Accordingly, we decline to hold that the trial court erred in its ruling. Rather, we hold that if a defendant has knowledge that an accident or incident has occurred on its property and that same defendant has a video camera that may have recorded the accident or incident, that defendant has a duty to obtain and preserve a copy of any relevant information recorded by that camera if a written request to do so has been made by the injured party or their representative prior to the point at which the information is lost or destroyed in the normal course of the defendant’s video operations. In so holding, we note that this issue would be better resolved by statute and hope that the legislature will soon address it.

Even if Osmulski was not required to make a written request for the preservation of the video evidence, she would not be entitled to a spoliation jury instruction under the reasonably foreseeable standard upon which she bases her argument. We recognize that courts in other jurisdictions have found defendants to be on notice that a claim is reasonably foreseeable once they have knowledge that a claim has been submitted to their insurance carrier. See, e.g., Smith v. Shipping Utils., Inc., No. Civ. 05-500-GPM, 2005 WL 3133494 at *3 (S.D.Ill.2005) (holding that there was a reasonable possibility that trial court would have ruled against defendant when deciding whether reasonable person should have foreseen that evidence was material to potential civil action where plaintiff sent insurance carrier a letter referencing both a compensable work accident and personal injury and where workers’ compensation carrier sent letter to plaintiffs counsel discussing right of subrogation to any settlement); Keene v. Brigham & Women’s Hosp., Inc., 439 Mass. 223, 786 N.E.2d 824, 833 (2003) (holding that defendant’s duty to preserve evidence arose on day that plaintiffs filed notice with defendant’s insurance carrier of a potential claim based on plaintiffs injuries).

But here, at the time the video recordings were discarded or taped over, no lawsuit had been filed, no demand for preservation of the evidence had been made, and OFW’s principal testified that even though he was aware that Osmulski had made a claim with the insurance carrier, he had been told that Osmulski was only seeking payment for her medical expenses. Thus, OFW was not on notice of a claim beyond medical expenses. Consequently, OFW did not have a duty to preserve the video recordings even under the reasonably foreseeable standard.

Osmulski places importance on the fact that OFW had been involved in another slip and fall case and that OFW’s principal testified in that earlier case that he reviewed the video recording to see if the plaintiff had been running. Osmulski contends that that fact indicates that OFW’s principal was aware of the importance of video evidence and that that should have put him on notice of potential litigation in this case. We are not persuaded by this argument. OFW’s principal testified in this case that the insurance carrier told him that Osmulski was only seeking payment of her medical bills, and the jury was free to accept that explanation.

While we do not need to reach the issue of which spoliation instruction Osmulski would have been entitled to if OFW had a duty to preserve the evidence, we believe that clarification on this issue is necessary. A rebuttable presumption of negligence may be available in certain contexts. See, e.g., Pub. Health Trust of Dade Cnty. v. Valcin, 507 So.2d 596 (Fla.1987) (adopting rebuttable presumption of negligence where health care provider was unable to produce essential medical records in medical malpractice action). But in a case like this which does not involve a statutory duty to provide medical records, the more appropriate remedy — if Osmulski had proved entitlement to it — would be an adverse inference instruction from which a jury could infer that the videotape in this case was unfavorable to OFW. See Hettiger, 904 So.2d at 549-51 (noting that Valein involved a statutory duty running from a health care provider to a patient to provide medical records and holding that adverse inference instruction was more appropriate in negligence case involving lost equipment).

The distinction between the two instructions is important. While a presumption “compels the trier of fact to find the presumed fact if it finds certain basic facts to be present,” it is stronger than an inference which “is a logical deduction of fact that the trier of fact may draw from existence of another fact or group of facts.” Charles W. Ehrhardt, Florida Evidence § 301.1 at 96-97 (2008 ed.). A “ ‘Valein presumption shifts the burden of proof to ensure that a jury decides the issue of negligence’ ” thereby “ ‘supplying] an essential element of the case.’ ” Palmas Y Bambu, S.A. v. E.I. Dupont De Nemours & Co., 881 So.2d 565, 582 (Fla. 3d DCA 2004) (quoting 6 Fla. Practice, Personal Injury & Wrongful Death Actions § 26.6 (2004 ed.) (footnotes omitted)). But an “ ‘adverse inference merely allows counsel to argue to the jury the inference that the evidence was lost because it was damaging to the opposing party’s case. The jury may accept or reject the inference as it sees fit.’ ” Id. (quoting id.). If OFW had a duty to preserve the evidence, an adverse inference instruction would have been appropriate in this case.

III. Conclusion

In sum, we affirm the final judgment because we conclude that the trial court did not err in denying Osmulski’s request for a spoliation jury instruction because Osmulski never made a written request for preservation of the evidence.

Affirmed.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . In OFW's response to Osmulski's motion for sanctions against OFW’s counsel and motion for rehearing/reconsideration of the March 18, 2010, order denying Osmulski’s motion for sanctions based on spoliation, OFW asserted that its principal was mistaken and that he had subsequently learned that the video recordings were only kept for seven days. However, an unsworn pleading is not evidence, see Coggan v. Coggan, 239 So.2d 17, 19 (Fla.1970), and OFW did not present any evidence to substantiate this assertion. Whether the recordings were retained for sixty or merely seven days is not crucial to our disposition.

      . Osmulski relies on this fact as support for her argument that her claim was reasonably foreseeable and, therefore, that OFW should have preserved the video recordings in this case.

      . Even under this reasonably foreseeable standard, the plaintiffs failure to make such a request would certainly be considered as a factor in determining whether a plaintiff's claim was reasonably foreseeable.

      . The very facts of this case demonstrate how a defendant may be confused as to whether he or she has a duty to preserve evidence in the absence of a written request.


author: VILLANTI, Judge.

text:
    Mitchell David JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-968.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Mitchell David Jackson was convicted of one count of armed kidnapping with a firearm, four counts of armed sexual battery with a firearm, and one count of aggravated assault with a firearm based on events that occurred in 1987. In 2010, this court vacated Jackson’s sentence on the armed kidnapping conviction and remanded for resentencing on that single conviction. See Jackson v. State, 29 So.3d 1152, 1153 (Fla. 2d DCA 2010). Jackson now appeals from the resentencing. We affirm the forty-year sentence imposed at that resentencing hearing on the armed kidnapping conviction without further discussion.

In this appeal, Jackson also raises various arguments directed to his sentences on the four armed sexual battery convictions. We decline to address these arguments. The issues giving rise to these arguments were first raised in the circuit court by a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), but the motion was filed only three days before the long-scheduled re-sentencing hearing on the armed kidnapping conviction. At the start of the resen-tencing hearing, the circuit court expressly declined to rule on the new 3.800(a) motion, noting that the only matter scheduled to be addressed was the resentencing on the armed kidnapping conviction. Thus, it appears from our record that Jackson’s rule 3.800(a) motion has never been ruled on and remains pending. Having failed to secure a ruling on that motion, Jackson is not entitled to appellate review of the issues raised in that motion at this point. See, e.g., Rhodes v. State, 986 So.2d 501, 513 (Fla.2008) (“To be preserved, the issue or legal argument must be raised and ruled on by the trial court.” (citing § 924.051(l)(b), Fla. Stat. (2006), and Philip J. Padovano, Flonda Appellate Practice § 8.1, at 148 (2007 ed.))).

On remand, if Jackson wishes the circuit court to consider his pending rule 3.800(a) motion, he should notify the court and obtain a ruling. However, we note that if Jackson is successful in obtaining a resen-tencing hearing on the armed sexual battery convictions, the State will be entitled to offer evidence to prove all of Jackson’s prior convictions. See Lucas v. State, 841 So.2d 380, 387 (Fla.2003) (“[A] resentenc-ing court is not limited by evidence presented (or not presented) in ... the original ... sentencing phase.”); Morton v. State, 789 So.2d 324, 334 (Fla.2001) (holding that in general a “ ‘resentencing should proceed de novo on all issues bearing on the proper sentence’ ” (quoting Teffeteller v. State, 495 So.2d 744, 745 (Fla.1986))); see also State v. Collins, 985 So.2d 985, 992-93 (Fla.2008) (finding that neither double jeopardy nor due process were violated by allowing the State to prove a defendant’s full prior record at resentenc-ing after the defendant’s original sentence is vacated as illegal). We express no opinion on the wisdom of Jackson’s decision to go forward with his rule 3.800(a) motion in light of his criminal record.

Affirmed.

ALTENBERND and KELLY, JJ., Concur.


text:
    T.L.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-1321.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellee.
   DAKAN, STEPHEN L., Associate Senior Judge.

T.L.H., a child, appeals the revocation of his probation and subsequent disposition. We have jurisdiction. See Fla. Rule App. P. 9.145(b). The State has filed a suggestion that this case is moot because T.L.H. has completed his probationary term. Assuming this is correct, the record and statements made during oral argument establish that the procedure followed in the trial court is subject to repetition. See N.W. v. State, 767 So.2d 446, 447 n. 2 (Fla.2000) (noting that where periods of supervision or community control may expire before a case may be reviewed, a case may present a controversy capable of repetition, yet evading review, which should be considered on the merits). Because we conclude that T.L.H.’s period of probation had terminated prior to his adjudicatory hearing and that the statutory and rule requirements governing juvenile violation of probation proceedings had not been met, we reverse.

The trial court placed T.L.H. on probation with the Department of Juvenile Justice (DJJ) for a period of six months. This probation expired on January 20, 2011. On December 12, 2010, the child was arrested for an alleged grand theft. The arresting officer filed a complaint alleging this new delinquent act was a violation of T.L.H.’s probation.

The court placed T.L.H. in secure detention on December 13, 2010, but later changed his status to nonsecure detention. He remained on detention status for the maximum time permitted by law. See § 985.26, Fla. Stat. (2010). Neither DJJ nor the State filed a petition alleging a violation of probation. See § 985.439.

The child appeared in court on February 18, 2011, in connection with the grand theft charge. The court discussed the claimed violation of probation. T.L.H.’s attorney moved to dismiss the violation of probation and argued that the child’s probation period had terminated, so the court could not consider the violation. The State argued that the filing of the complaint by the Pinellas County Sheriff's deputy tolled the probationary period, and the court could consider the violation. The trial court ruled in favor of the State. After the trial court’s ruling and after preserving the denial of the motion to dismiss for appellate review, T.L.H. entered an admission to the violation. The trial court revoked his probation and imposed a new, six-month probationary term.

We agree with the decision of the Fifth District that there is no provision in either the statutes or the rules governing juvenile delinquency proceedings that allows for tolling of probation upon the filing of an affidavit and the issuance of a warrant. See K.L.T. v. State, 65 So.3d 102 (Fla. 5th DCA 2011).

In K.L.T., an affidavit alleging a violation of probation was filed and a warrant issued. The child was not arrested on the warrant until after the probation had terminated. Id. The Fifth District held that, unlike the statutory provisions governing adult probation, especially section 948.06(l)(d), Florida Statutes (2009), there is no provision in either the statutes or the Florida Rules of Juvenile Procedure that allows for a tolling of the probationary time period. K.L.T., 65 So.3d at 102. That court also observed, possibly in response to an argument similar to the argument made by the State in this case, that section 949.01 specifically provides that nothing in chapters 947 through 949 (adult probation and parole statutes) can be construed to change or modify the law respecting parole or probation as administered by a circuit court exercising juvenile jurisdiction. K.L.T., 65 So.3d at 102. The Fifth District held that the trial court lacked jurisdiction to conduct a violation of probation hearing after KL.T.’s probation term had expired. Id. at 103.

In this case, T.L.H. was arrested for a delinquent act which, if proved, would have been a violation of his probation. The trial court and at least the State were under the impression that (1) the complaint filed by the deputy sheriff tolled the running of T.L.H.’s probationary period, (2) the complaint was the appropriate procedure to allow the trial court to consider the violation of probation, and (3) nothing else needed to be filed. We disagree.

Section 985.439(1)(b) provides that if the conditions of a child’s probation are violated, “the department or the state attorney may bring the child before the court on a petition alleging a violation of the program.” (Emphasis added).

Florida Rule of Juvenile Procedure 8.120, dealing with revocation of juvenile probation, provides that a proceeding alleging a violation of probation shall be initiated by the filing of a sworn affidavit executed by the child’s juvenile probation officer “or other person having the actual knowledge of the facts.” Fla. R. Juv. P. 8.120(a)(2). The complaint filed by the deputy sheriff certainly satisfies that provision.

The rule goes on to provide, however, that when — as in this case — revocation proceedings are sought by the State or the DJJ, those proceedings must be initiated by the “filing of a petition alleging violation of juvenile probation” and that petition must incorporate the affidavit referred to earlier in the rule. Fla. R. Juv. P. 8.120(a)(3). (Emphasis added). All petitions must be “signed and filed by legal counsel.” Id. The complaint filed by the deputy sheriff does not satisfy those provisions.

The arrest of the child, the child’s detention, and the complaint filed by the deputy sheriff did not toll the child’s probationary period. The DJJ knew of the child’s arrest on the date of his detention, December 13, 2010. Both the DJJ and the State had over thirty days in which to file a petition, attach the complaint filed by the deputy sheriff, and have it served on the child (whose location was known), before the expiration of his probation. Neither took that action and, at the hearing on February 18, 2011, not only had T.L.H.’s probation expired but none of the statutory and rule requirements governing juvenile violation of probation proceedings had been met.

Disposition order reversed.

SILBERMAN, C.J., and KELLY, J., Concur.

      . As reiterated in Hagan v. State, 853 So.2d 595, 597 (Fla. 5th DCA 2003):
      Generally, an issue is moot when the "controversy has been so fully resolved that a judicial determination can have no actual effect.” Godwin v. State, 593 So.2d 211, 212 (Fla. 1992). Florida courts recognize at least three instances in which an otherwise moot case will not be dismissed: (1) when the questions raised are of great public importance!,] or (2) are likely to recur[,] or (3) if collateral legal consequences that affect the rights of a party flow from the issue to be determined. Id.


author: KHOUZAM, Judge.

text:
    Rebecca HENDERSON f/k/a Rebecca Lyons, Appellant, v. Stephen G. LYONS and Kathy M. Leggett, Appellees.
    No. 2D11-1829.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.

      Debra J. Sutton of Sutton Law Firm, Bartow, and Raymond J. Rafool of Raymond J. Rafool, LLC, Miami, for Appellant.
    Kathy M. Leggett, pro se.
    No appearance for Appellee Stephen G. Lyons.
   KHOUZAM, Judge.

Rebecca Henderson, the Former Wife, timely appeals the circuit court’s order awarding fees to Kathy Leggett, the Parenting Coordinator. Because the trial court erred in failing to allow the Former Wife to complete cross-examination or present witnesses at the evidentiary hearing, we reverse and remand for a full evidentiary hearing on the amount of fees. As to the remaining issues, we affirm without comment.

The final judgment of dissolution of Stephen Lyons and Rebecca Henderson’s marriage was entered on May 17, 2007. The couple had two minor children. Two years after dissolution, on June 30, 2009, the parties stipulated to the appointment of a parenting coordinator to assist in the preparation and development of a parenting plan and time-sharing schedule. The parties requested Leggett be appointed as parenting coordinator, and the court entered an order appointing her. The parties signed a service agreement stating how Leggett’s fees would be calculated and providing that they would share the expense. The agreement also provided that one parent could be required, at the parenting coordinator’s discretion, to pay a disproportionate share of the fees under certain circumstances — for example, if that parent took an unreasonable position or a position inconsistent with the children’s best interests.

On March 31, 2010, the Former Wife filed a motion for termination of the order appointing parenting coordinator, alleging that Leggett was not properly carrying out her duties. Shortly thereafter, Leggett filed a motion to withdraw, claiming that the Former Wife had refused to participate in the parenting coordination process. Leggett attached the order appointing parenting coordinator and the signed agreement for services to her motion. The court granted Leggett’s motion, noting that she was entitled to reasonable compensation for her services. Leggett then filed a motion to tax parenting coordinator fees, requesting that the Former Wife be required to pay a disproportionate amount of the fees owed.

An evidentiary hearing was held on February 2, 2011. The court reiterated that Leggett was entitled to fees based on the parties’ agreement and allowed Leggett to testify on the question of the amount of fees. But before the Former Wife’s attorney finished cross-examining Leggett, the court ended the hearing, stating that the time for the hearing had expired and that additional information was not needed. The Former Wife was not given an opportunity to present her own evidence. On March 11, 2011, the court entered a written order granting Leggett’s motion and awarding fees in the amount Leggett requested. The Former Wife timely appealed.

We review the question of whether a party was denied the opportunity to be heard for an abuse of discretion. See Smith v. Smith, 964 So.2d 217, 218-19 (Fla. 2d DCA 2007). “ ‘It is fundamental that the constitutional guarantee of due process, which extends into every proceeding, requires th[at] the opportunity to be heard be full and fair, not merely colorable or illusive.’ ” Id. at 219 (quoting Edelman v. Breed, 836 So.2d 1092, 1094 (Fla. 5th DCA 2003)). “When a court fails to give one party the opportunity to present witnesses or testify on his or her own behalf, the court has violated that party’s fundamental right to procedural due process.” Douglas v. Johnson, 65 So.3d 605, 607 (Fla. 2d DCA 2011). Here, the Former Wife’s right to procedural due process was violated when the trial court denied her an opportunity to present witnesses or other evidence at the hearing. This was an abuse of the court’s discretion. Accordingly, we reverse and remand for a full evi-dentiary hearing on the question of the amount of fees.

Affirmed in part; reversed and remanded in part.

NORTHCUTT and BLACK, JJ., Concur.


text:
    The ROYAL PALM BANK OF FLORIDA, Appellant, v. HUNTERS PROPERTY, LLC, a Florida limited liability company; CDL Real Estate Investment, LLC, a Florida limited liability company; Diane Jensen, as the Chapter 7 Trustee for Richard Leli, Jr. d/b/a RL Homes; and Christopher M. Marsala, Appellees.
    No. 2D11-917.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
    Joseph Stewart, Naples, for Appellee Christopher M. Marsala.
    No appearance for remaining Appellees.
   DAVIS, Judge.

The Royal Palm Bank of Florida challenges the trial court’s order denying its motion for a deficiency judgment after a foreclosure proceeding forced the sale of property owed by Hunters Property, LLC. We reverse.

The issue on appeal involves the trial court’s excluding the opinion testimony of Royal Palm Bank’s appraiser offered at the hearing on the motion for a deficiency judgment. Hunters Property and the guarantor of the defaulted loan, Christopher Marsala, objected to the appraiser’s expert testimony based on the licensing provisions of chapter 475, Florida Statutes (2009). The trial court excluded the testimony of the appraiser and then denied Royal Palm’s motion for deficiency judgment because it “failed to establish by competent evidence that any deficiency exists.” Such was error.

The defendant property owners based their objection to Royal Palm’s expert on the provisions of section 475.611, which distinguishes between a “certified general appraiser” and a “certified residential appraiser.” However, that distinction is immaterial because section 475.612(4) provides as follows: “This section does not prevent any state court or administrative law judge from certifying as an expert witness in any legal or administrative proceeding an appraiser who is not certified, licensed, or registered; nor does it prevent any appraiser from testifying, with respect to the results of an appraisal.”

Accordingly, we reverse the trial court’s order and remand for further proceedings. The trial court is to consider the expert’s proffered testimony along with the other evidence produced at trial in its reconsideration of the motion for a deficiency judgment. Any determination that the deficiency judgment should be denied “must be supported by established equitable principles and the record must disclose sufficient facts and circumstances” to support that judgment. Norwest Bank of Owatonna, N.A. v. Millard,, 522 So.2d 546, 547 (Fla. 4th DCA 1988). We note that absent written findings of fact and law in support of such a judgment, the trial court’s reasoning may not be apparent for this court’s review. Cf. Shaw v. Charter Bank, 576 So.2d 907, 908 n. 2 (Fla. 1st DCA 1991).

Reversed and remanded.

CASANUEVA and KHOUZAM, JJ„ Concur.


text:
    Albert Edwin BROOKS, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3130.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Albert Edwin Brooks, Jr., appeals his judgment and sentence for felony battery. He argues that the trial court erred by sentencing him as a Prison Releasee Reof-fender (PRR) because the offense of felony battery under section 784.041, Florida Statutes (2010), is not a qualifying offense for PRR sentencing under section 775.082, Florida Statutes (2010). We hold that the offense of felony battery under section 784.041 is a qualifying offense for PRR sentencing, and we affirm.

A jury found Brooks guilty of felony battery, and he was sentenced as a PRR to five years in prison. On appeal, Brooks argues that his felony battery conviction does not qualify him for PRR sentencing because it is not specifically listed in and does not fall under the catch-all provision of the PRR statute. But felony battery does fall under the catch-all provision, and thus Brooks’ PRR sentence was proper.

Qualifying offenses for PRR sentencing are listed in section 775.082(9)(a)(1). Felony battery is not included in the list of qualifying offenses. However, section 775.082(9)(a)(1)(o) contains a catch-all provision which states “[a]ny felony that involves the use or threat of physical force or violence against an individual” is a qualifying offense.

Felony battery falls under this catch-all provision. The felony battery statute, section 784.041, provides as follows:

(1) A person commits felony battery if he or she:
(a) Actually and intentionally touches or strikes another person against the will of the other; and
(b) Causes great bodily harm, permanent disability, or permanent disfigurement.

(Emphasis added.) As the Fourth District explained in State v. Williams, a conviction for felony battery under this section “requires great bodily harm, permanent disability, or permanent disfigurement” and thus “cannot ‘be committed without the use or threat of physical force or violence.’ ” 9 So.3d 658, 660 (Fla. 4th DCA 2009) (quoting Spradlin v. State, 967 So.2d 376, 378 (Fla. 4th DCA 2007)); cf. State v. Hearns, 961 So.2d 211, 218-19 (Fla.2007) (holding that the offense of battery on a law enforcement officer does not qualify as a forcible felony for purposes of violent career criminal sentencing because it does not necessarily involve the use of threat of physical force or violence, and acknowledging that “intentionally causing bodily harm involves the use or threat of physical force or violence”).

Accordingly, we affirm because felony battery is a qualifying offense for PRR sentencing, and Brooks’ PRR sentence was proper.

Affirmed.

ALTENBERND and KELLY, JJ„ Concur.


author: WALLACE, Judge.

text:
    Frenecia Latrice THOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 2D12-2200.
    District Court of Appeal of Florida, Second District.
    June 29, 2012.
    Julianne M. Holt, Public Defender, and Rebecca S. Sinclair, Assistant Public Defender, Tampa, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Respondent.
   WALLACE, Judge.

Frenecia Latrice Thomas filed a petition for writ of habeas corpus challenging the trial court’s order finding her incompetent to proceed in two criminal cases and directing that she be involuntarily committed to the Department of Children and Family Services (DCF). By order, we treated the petition as a petition for writ of certiorari. Because the trial court’s ruling that Ms. Thomas met the requirements for involuntary commitment under section 916.18(1), Florida Statutes (2011), is not supported by clear and convincing evidence, the challenged order departs from the essential requirements of the law. See, e.g., Dep’t of Children & Families v. Alvarado, 946 So.2d 180, 131 (Fla. 5th DCA 2007). Accordingly, we quash that portion of the order committing Ms. Thomas to DCF, and we remand for further proceedings.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The State charged Ms. Thomas in two cases with aggravated battery, grand theft motor vehicle, and criminal mischief. Because of questions concerning whether Ms. Thomas was incompetent to proceed within the meaning of section 916.12(1), the trial court, under section 916.115(1), appointed two mental health experts to examine her. The two experts, Bala K. Rao, M.D., and Charles 0. Matthews, Ph.D., examined Ms. Thomas and filed written reports with the trial court. At the competency hearing, the parties and the trial court relied solely on the experts’ written reports; the trial court did not hear any live testimony. Both experts opined that Ms. Thomas was incompetent to proceed within the meaning of section 916.12(1). Ms. Thomas does not challenge that portion of the trial court’s order finding her incompetent to proceed, and her competency is not at issue in this proceeding. Instead, we address that portion of the trial court’s order involuntarily committing her to DCF for treatment.

II. THE PERTINENT STATUTE

Section 916.13 addresses .the question of the involuntary commitment to DCF of defendants charged with a felony who have been adjudicated incompetent to proceed. The statute provides, in pertinent part:

(1) Every defendant who is charged with a felony and who is adjudicated incompetent to proceed may be involuntarily committed for treatment upon a finding by the court of clear and convincing evidence that:
(a) The defendant has a mental illness and because of the mental illness:
1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to the defendant’s well-being; or
2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm;
(b) All available, less restrictive treatment alternatives, including treatment in community residential facilities or community inpatient or outpatient settings, which would offer an opportunity for improvement of the defendant’s condition have been judged to be inappropriate; and
(e) There is a substantial probability that the mental illness causing the defendant’s incompetence will respond to treatment and the defendant will regain competency to proceed in the reasonably foreseeable future.
(2) A defendant who has been charged with a felony and who has been adjudicated incompetent to proceed due to mental illness, and who meets the criteria for involuntary commitment to the department under the provisions of this chapter, may be committed to the department, and the department shall retain and treat the defendant.

Here, our task is to determine whether competent, substantial evidence supports the trial court’s ruling that Ms. Thomas met the statutory criteria for involuntary commitment. Thus we turn to an examination of the experts’ written reports — the only evidence before the trial court at the hearing.

III. THE EXPERTS’ REPORTS

In his written report, Dr. Rao said that Ms. Thomas suffers from a bipolar disorder. Dr. Rao did not explicitly address whether Ms. Thomas met the criteria for involuntary commitment under subsections 916.13(1)(a)(1) and (2). However, Dr. Rao did opine that Ms. Thomas did not meet the criteria for commitment under the Baker Act. Section 394.467, Florida Statutes (2011), of the Baker Act states the criteria for involuntary inpatient placement based on mental illness. Subsections 394.467(1)(a)(2)(a) and (b) require the trial court to make the same findings as sections 916.13(1)(a)(1) and (2), and the language of the two statutes is substantially similar. Although Dr. Rao determined that Ms. Thomas was mentally ill, he also determined that she did not meet the criteria for involuntary inpatient placement under the Baker Act. It follows that Dr. Rao implicitly found that Ms. Thomas did not meet the criteria set forth in subsections 916.13(1)(a)(1) and (2) for involuntary commitment to DCF.

In addition, Dr. Rao did not specifically address the question of whether all less restrictive treatment alternatives would be inappropriate — a requirement for involuntary commitment under subsection 916.13(l)(b). However, Dr. Rao did recommend that Ms. Thomas have competency training while she was in the county jail. This recommendation suggests that less restrictive treatment alternatives than involuntary commitment to DCF were available. Finally, Dr. Rao did not address the question of whether there was a substantial probability that Ms. Thomas’ mental illness would respond to treatment with the result that she would regain competency to proceed in the reasonably foreseeable future — a requirement for involuntary commitment under subsection 916.13(1)(c).

There are similar issues with Dr. Matthews’ report. Dr. Matthews said that Ms. Thomas suffers from a psychotic disorder. With regard to the criteria in subsections 916.13(1)(a)(1) and (2), Dr. Matthews reported that Ms. Thomas “did not appear to be a danger to herself or others at the time of the current evaluation.” However, he cautioned that Ms. Thomas might “over-react with violence ... in situations where she feels threatened and if she has been abusing substances.” Concerning the propriety of less restrictive treatment alternatives than involuntary commitment to DCF, Dr. Matthews opined that Ms. Thomas should be evaluated to determine whether she needs a dual diagnosis treatment program for both substance abuse and mental health issues. If such an evaluation could not be performed in a less restrictive setting, Dr. Matthews recommended that it be performed at a forensic state hospital program. Concerning the requirement for involuntary commitment involving the probability of regaining competency under subsection 916.13(l)(c), Dr. Matthews stated that “[i]t is not clear if [Ms. Thomas] would be able to regain competence in the foreseeable future given her cognitive limitations and severe mental illness.”

IY. THE TRIAL COURT’S ORDER

In its order adjudging Ms. Thomas to be incompetent and involuntarily committing her to DCF, the trial court found under subsection 916.13(1)(a)(1) that Ms. Thomas was manifestly incapable of surviving alone or with the help of willing or responsible family or friends. The trial court also found that without treatment Ms. Thomas is likely to suffer from neglect or a refusal to care for herself, thereby posing a threat of potential harm to her well-being. The experts’ reports do not support these findings. Dr. Rao determined — at least implicitly — -that this was not the case. Similarly, Dr. Matthews found that Ms. Thomas was not a danger to herself at the time of the evaluation. Under subsection 916.13(1)(a)(2), the trial court found that there was a substantial likelihood that in the near future Ms. Thomas will inflict serious bodily harm on herself or on another person. Once again, Dr. Rao implicitly determined that this was not the case, and Dr. Matthews found that Ms. Thomas was not a danger to herself or others.

Furthermore, the trial court found that both experts recommended that less restrictive treatment settings were inappropriate. This finding was clearly unsupported by Dr. Rao’s recommendation. Dr. Matthews determined that treatment in the forensic state hospital made the most sense unless there were less restrictive alternatives available. Unfortunately, Dr. Matthews did not address the availability of any less restrictive alternatives; nor did he determine that any such alternatives would be inappropriate in this instance. Although the trial court found that there is a substantial probability that the mental illness causing Ms. Thomas’ incompetence will respond to treatment and that she will regain competency to proceed in the reasonably foreseeable future, neither of the experts’ reports supported this finding.

V. CONCLUSION

The trial court’s ruling that Ms. Thomas met the requirements for involuntary commitment to DCF is not supported by clear and convincing evidence. Accordingly, we quash that portion of the trial court’s order. The experts’ reports did not explicitly address all of the requirements for involuntary commitment under section 916.13(1). Accordingly, on remand, the trial court shall hear further evidence on this issue from Dr. Rao and Dr. Matthews or other qualified experts. If the evidence presented does not clearly and convincingly establish that Ms. Thomas meets the requirements for involuntary commitment under section 916.13(1), the trial court shall hold a hearing to determine the appropriate mental health treatment for her in accordance with Florida Rule of Criminal Procedure 3.212(c)(1), (2), and (d). See Gatlin v. State, 79 So.3d 202, 204 (Fla. 2d DCA 2012).

Petition granted; order quashed in part.

KELLY and KHOUZAM, JJ., Concur.

      . See Oren v. Judd, 940 So.2d 1271, 1272 n. 1 (Fla. 2d DCA 2006).

      . The Florida Mental Health Act is also known as the Baker Act, and it appears in part I of chapter 394, from sections 394.451 to 394.4789. See § 394.451, Fla. Stat. (2011).

      . At the competency hearing, both the trial court and the parties acknowledged that competency training was not available at the county jail. Later, Dr. Rao sent an e-mail to trial counsel recommending that Ms. Thomas be treated at the residential program at the Northside Mental Health Center; however, this recommendation was not part of Dr. Rao’s written report and was not considered at the competency hearing.