author: PER CURIAM.

text:
    In re AMENDMENTS TO THE FLORIDA RULES OF CRIMINAL PROCEDURE.
    No. SC10-1471.
    Supreme Court of Florida.
    Sept. 23, 2010.
    Robert T. Strain, Chair, Florida Rules of Criminal Procedure Committee, Capital Collateral Regional Counsel, Tampa, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to the Florida Rules of Criminal Procedure. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Criminal Procedure Rules Committee has filed a fast-track report in response to legislative changes. Upon consideration of the committee’s report and the relevant legislation, we adopt the amendments to rules 3.986 (Forms Related to Judgment and Sentence), 3.111(Provid-ing Counsel to Indigents), 3.720 (Sentencing Hearing), and. 3.704 (The Criminal Punishment Code) as proposed by the committee. Subdivisions (e) (Form for Order of Probation), and (f) (Order of Community Control) of rule 3.986 are amended in response to chapter 2010-64, Laws of Florida, requiring that as a condition of probation and community control, offenders submit to the taking of a digitized photograph by the Department of Corrections as a part of the offender’s records. Ch. 2010-64, §§ 18, 20, Laws of Fla. (effective July 1, 2010). Specific references to sections 948.03 and 948.101, Florida Statutes, are included because these statutes provide additional information concerning how the department may display these photographs and limitations upon its authority to do so.

Subdivision (c) (Forms for Charges, Costs, and Fees) of rule 3.986 and rules 3.111(b)(5)(A) and 3.720(d)(1) are amended to include references to court-appointed counsel, other than the public defender, within provisions pertaining to the imposition of liens for services rendered by court-appointed counsel. This is in response to the creation of the Office of Criminal Conflict and Civil Regional Counsel and the inclusion of that office in section 938.29, Florida Statutes (2009). See Chapter 2007-62, § 29, Laws of Fla. (effective October 1, 2007). Rules 3.111(b)(5)(A) and 3.720(d)(1) are also amended to correct the statutory reference to section 27.56, Florida Statutes, which has been renumbered as section 938.29, Florida Statutes (2009).

Finally, rule 3.704 (The Criminal Punishment Code) is amended in response to chapter 2007-212, Laws of Florida. That legislation revised part of the worksheet key contained in section 921.0024(l)(b), Florida Statutes, pertaining to the law enforcement protection act multiplier. Ch. 2007-212, § 2, Laws of Fla. Subdivision (d)(20) of this rule is amended to correspond with the change in legislation.

Accordingly, the Florida Rules of Criminal Procedure are hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments shall become effective immediately upon the release of this opinion. Further, interested persons shall have sixty days from the date of this opinion to file comments regarding the amendments with the Court.

It is so ordered.

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

APPENDIX

RULE 3.111. PROVIDING COUNSEL TO INDIGENTS

(a) [No change]

(b) Cases Applicable.

(1) — (4) [No change]

(5) Before appointing a public defender, the court shall:

(A) inform the accused that, if the public defender or other counsel is appointed, a lien for the services rendered by the, public — d&fendnrcounsel may be imposed under section 27.56rF-lorida Statutes as provided by law;

(B) make inquiry into the financial status of the accused in a manner not inconsistent with the guidelines established by section 27.52, Florida Statutes. The accused shall respond to the inquiry under oath;

(C) require the accused to execute an affidavit of insolvency as required by section 27.52, Florida Statutes.

(c) — (e) [No change]

Committee Notes

[No change]

RULE 3.704. THE CRIMINAL PUNISHMENT CODE

(a) — (c) [No change]

(d)General Rules and Definitions.

(1) — (19) [No change]

(20) If the primary offense is a violation of the Law Enforcement Protection Act under subsection 775.0823(2), (3), or (4), Florida Statutes, the subtotal sentence points are multiplied by a factor of 2.5. If the primary offense is a violation of subsection 775.0823(3-))-(4-)^(5), (6), (7), or-(8), or (9), the subtotal sentence points are multiplied by a factor of 2.0. If the primary offense is a violation of section 784.07(3) or 775.0875(1) or the Law Enforcement Protection Act under subsection 775.0823(9) or (10) or (11), — or—section 784.07(3)⅜ — Florida—Statutes,—or—section 775.087-5(-l-), the subtotal sentence points are multiplied by a factor-of 1.5.

(21) — (30) [No change]

Committee Note

[No change]

RULE 3.720. SENTENCING HEARING

As soon as practicable after the determination of guilt and after the examination of any presentence reports, the sentencing court shall order a sentencing hearing. At the hearing:

(a) — (c) [No change]

(d) (1) If the accused was represented by a public defender or special-assistant public defenderother court appointed counsel, the court shall notify the accused of the imposition of a lien pursuant to section 27.56938.29, Florida Statutes. The amount of the lien shall be given and a judgment entered in that amount against the accused. Notice of the accused’s right to a hearing to contest the amount of the lien shall be given at the time of sentence.

(2) If the accused requests a hearing to contest the amount of the lien, the court shall set a hearing date within 30 days of the date of sentencing.

Committee Notes

[No change]

RULE 3.986. FORMS RELATED TO JUDGMENT AND SENTENCE

(a) — (b) [No change]

(c) Form for Charges, Costs, and Fees.

CHARGES/COSTS/FEES

The defendant is hereby ordered to pay the following sums if checked:

_ $50.00 pursuant to section 938.03, Florida Statutes (Crimes Compensation Trust Fund).

_ $3.00 as a court cost pursuant to section 938.01, Florida Statutes (Criminal Justice Trust Fund).

_ $2.00 as a court cost pursuant to section 938.15, Florida Statutes (Criminal Justice Education by Municipalities and Counties).

_ A fíne in the sum of $_pursu-ant to section 775.0835, Florida Statutes. (This provision refers to the optional fíne for the Crimes Compensation Trust Fund and is not applicable unless checked and completed. Fines imposed as part of a sentence to section 775.083, Florida Statutes, are to be recorded on the sentence page(s).)

_ A sum of $ pursuant to section 938.27, Florida Statutes (Prosecution/Investigative Costs).

_ A sum of $ pursuant to section 938.29, Florida Statutes (Public Defender/Appointed Counsel Fees).

_ Restitution in accordance with attached order.

_ $201 pursuant to section 938.08, Florida Statutes (Funding Programs in Domestic Violence).

_ A sum of $_ for the cost of collecting the DNA sample required by s. 943.325, Florida Statutes.

_ Other_

DONE AND ORDERED in open court in _ County, Florida, on .(date).

Judge

(d) [No change]

(e) Form for Order of Probation.

ORDER OF PROBATION

This cause coming on this day to be heard before me, and you, the defendant, _, being now present before me, and you having

(check one)

_ entered a plea of guilty to

_ entered a plea of nolo contendere to

_ been found guilty by jury verdict of

SECTION 1: Judgment Of Guilt

_ The Court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that the imposition of sentence is hereby withheld and that you be placed on probation for a period of_ under the supervision of the Department of Corrections, subject to Florida law. SECTION 2: Order Withholding Adjudication

_ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on probation for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Probation During Portion Of Sentence

It is hereby ordered and adjudged that you be

_ committed to the Department of Corrections

_ confined in the County Jail for a term of_with credit for _ jail time. After you have served_of the term you shall be placed on probation for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

_ confined in the County Jail for a term of_with credit for _jail time, as a special condition of probation.

It is further ordered that you shall comply with the following conditions of probation during the probationary period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.

(2) You will pay the State of Florida the amount of $_ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.

(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own any weapons without first procuring the consent of your officer.

(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation.

(6) You will not associate with any person engaged in any criminal activity.

(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(8) You will work diligently at a lawful occupation, advise your employer of your probation status, and support any dependents to the best of your ability, as directed by your officer.

(9) You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer to visit in your home, at your employment site, or elsewhere, and you will comply with all instructions your officer may give you.

(10) You will pay restitution, costs, and/or fees in accordance with the attached orders.

(11) You will report in person within 72 hours of your release from confinement to the probation office in _ County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 3 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at_

(12) You shall submit to the drawing of blood or other biological specimens as required by s. 943.325, Florida Statutes.

(13) You shall submit to the taking of a digitized photograph as required by s. 948.03, Florida Statutes.

SPECIAL CONDITIONS

_ You must undergo a (drug/alcohol) evaluation and, if treatment is deemed necessary, you must successfully complete the treatment.

_ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

_ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You will not associate with _during the period of probation.

_ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

_ You will not contact _ during the period of probation.

_ You will attend and successfully complete an approved batterers’ intervention program.

_ Other _

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your probation, or may extend the period of probation as authorized by law, or may discharge you from further supervision. If you violate any of the conditions of your probation, you may be arrested and the court may revoke your probation, adjudicate you guilty if adjudication of guilt was withheld, and impose any sentence that it might have imposed before placing you on probation or require you to serve the balance of the sentence.

It is further ordered that when you have been instructed as to the conditions of probation, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerk’s office and provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on .(date).

Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

.(date).

Probationer_

Instructed by_

Original: Clerk of the Court

Certified Copies: Probationer Florida Department of Corrections, Probation and Parole Services

(f) Form for Community Control.

In the_Court

of_County, Florida

Case Number_

ORDER OF COMMUNITY CONTROL

This cause coming on this day to be heard before me, and you, the defendant, _, being now present before me, and you having

(check one)

_ entered a plea of guilty to

_ entered a plea of nolo contendere to

_ been found guilty by jury verdict of

SECTION 1: Judgment of Guilt

_ The court hereby adjudges you to be guilty of the above offense(s).

Now, therefore, it is ordered and adjudged that you be placed on community control for a period of_under the supervision of the Department of Corrections, subject to Florida law.

SECTION 2: Order Withholding Adjudication

_ Now, therefore, it is ordered and adjudged that the adjudication of guilt is hereby withheld and that you be placed on Community Control for a period of _ under the supervision of the Department of Corrections, subject to Florida law.

SECTION 3: Community Control During Portion Of Sentence

It is hereby ordered and adjudged that you be

_ committed to the Department of Corrections

_ confined in the County Jail

for a term of_with credit for _ jail time. After you have served_of the term, you shall be placed on community control for a period of_under the supervision of the Department of Corrections, subject to Florida law.

_ confined in the County Jail

for a term of_with credit for _jail time, as a special condition

of community control.

It is further ordered that you shall comply with the following conditions of community control during the community control period.

(1) Not later than the fifth day of each month, you will make a full and truthful report to your officer on the form provided for that purpose.

(2) You will pay the State of Florida the amount of $_ per month toward the cost of your supervision, unless otherwise waived in compliance with Florida Statutes.

(3) You will not change your residence or employment or leave the county of your residence without first procuring the consent of your officer.

(4) You will not possess, carry, or own any firearm. You will not possess, carry, or own other weapons without first procuring the consent of your officer.

(5) You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your community control.

(6) You will not associate with any person engaged in any criminal activity-

(7) You will not use intoxicants to excess or possess any drugs or narcotics unless prescribed by a physician. Nor will you visit places where intoxicants, drugs, or other dangerous substances are unlawfully sold, dispensed, or used.

(8) You will work diligently at a lawful occupation, advise your employer of your community control status, and support any dependents to the best of your ability as directed by your officer.

(9) You will promptly and truthfully answer all inquiries directed to you by the court or your officer and allow your officer to visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.

(10) You will report to your officer at least 4 times a week, or, if unemployed full time, daily.

(11) You will perform_hours of public service work as directed by your officer.

(12) You will remain confined to your approved residence except for one half hour before and after your ap- ■ proved employment, public service work, or any other special activities approved by your officer.

(13) You will pay restitution, costs, and/or fees in accordance with the attached orders.

(14) You will report in person -within 72 hours of your release from confinement to the probation office in _County, Florida, unless otherwise instructed by your officer. (This condition applies only if section 8 on the previous page is checked.) Otherwise, you must report immediately to the probation office located at_

(15) You shall submit to the drawing of blood or other biological specimens as required by s. 948.325, Florida Statutes.

(16) You shall submit to the taking of a digitized photograph as required by s. 948.101, Florida Statutes.

SPECIAL CONDITIONS

_ You must undergo a (drug/alcohol) evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You must undergo a mental health evaluation, and if treatment is deemed necessary, you must successfully complete the treatment.

_ You will submit to urinalysis, breathalyzer, or blood tests at any time requested by your officer, or the professional staff of any treatment center where you are receiving treatment, to determine possible use of alcohol, drugs, or controlled substances. You shall be required to pay for the tests unless payment is waived by your officer.

_ You will not associate with _during the period of community control.

_ You will not associate with other criminal gang members or associates, except as authorized by law enforcement officials, prosecutorial authorities, or the court, for the purpose of aiding in the investigation of criminal activity.

_ You will not contact _ during the period of community control.

. You will maintain an hourly accounting of all your activities on a daily log which you will submit to your officer on request.

. You will participate in self-improvement programs as determined by the court or your officer.

. You will submit to electronic monitoring of your whereabouts as required by the Florida Department of Corrections.

. You will attend and successfully complete an approved batterers’ intervention program.

. Other_

(Use the space below for additional conditions as necessary.)

You are hereby placed on notice that the court may at any time rescind or modify any of the conditions of your community control, or may extend the period of community control as authorized by law, or may discharge you from further supervision or return you to a program of regular probation supervision. If you violate any of the conditions and sanctions of your community control, you may be arrested, and the court may adjudicate you guilty if adjudication of guilt was withheld, revoke your community control, and impose any sentence that it might have imposed before placing you on community control.

It is further ordered that when you have reported to your officer and have been instructed as to the conditions of community control, you shall be released from custody if you are in custody, and if you are at liberty on bond, the sureties thereon shall stand discharged from liability. (This paragraph applies only if section 1 or section 2 is checked.)

It is further ordered that the clerk of this court file this order in the clerk’s office, and forthwith provide certified copies of same to the officer for use in compliance with the requirements of law.

DONE AND ORDERED, on .(date).

Judge

I acknowledge receipt of a certified copy of this order. The conditions have been explained to me and I agree to abide by them.

.(date).

Community controller_

Instructed by_

Original: Clerk of the Court

Certified Copies: Community Controlee Florida Department of Corrections, Probation and Parole Sendees

(g) [No change]

      . The Board of Governors of The Florida Bar, through its Executive Committee, voted unanimously (eleven to zero) in favor of the proposed amendments and in favor of filing the proposals out of cycle.

      . An original and nine paper copies of all comments must be filed with the Court on or before November 22, 2010, with a certificate of service verifying that a copy has been served on the Committee Chair, Robert Strain, Capital Collateral Regional Counsel, 3801 Corporex Park Dr., Ste. 210, Tampa, FL 33619-1136, as well as separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until December 13, 2010, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order in In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


source: Caselaw Access Project

license: Public Domain

text:
    In re AMENDMENTS TO THE FLORIDA FAMILY LAW RULES OF PROCEDURE.
    No. SC10-1468.
    Supreme Court of Florida.
    Sept. 23, 2010.
    Steven P. Combs, Chair, Family Law Rules Committee, Jacksonville, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner.
   PER CURIAM.

The Florida Bar’s Family Law Rules Committee (Committee) has filed a “fast-track” report proposing amendments to the Florida Family Law Rules of Procedure Forms in order to implement the 2010 legislative amendments adopted in chapter 2010-199, sections 3 and 5, Laws of Florida. We have jurisdiction. See art. V, § 2(a), Fla. Const.; Fla. R. Jud. Admin. 2.140(e).

Under the Committee’s “fast-track” procedure for considering new legislation, the Committee proposes amendments to Florida Family Law Rules of Procedure Forms 12.902(e) (Child Support Guidelines Worksheet) and 12.996(a) (Income Deduction Order (Non-Title IV Case)). The Florida Bar Board of Governors unanimously approved the Committee’s proposals. The proposed amendments are in response to chapter 2010-199, sections 3 and 5, Laws of Florida, which amend numerous provisions within chapter 61, Florida Statutes, pertaining to alimony and child support. With regard to forms 12.902(e) and 12.996(a), the amendments require: removal of the first three combined net income amounts in the guidelines schedule; the elimination of the twenty-five percent reduction in calculating monthly child care costs to be added to the basic child support obligation; a decrease from forty percent to twenty percent of the overnights in a year that a parent must have with a child to qualify as a “substantial amount of time” for time-sharing (formerly visitation) purposes; and the addition of a “Child Support Reduction/Termination Schedule” to income deduction orders issued after October 1, 2010.

After considering the Committee’s proposals and reviewing the relevant legislation, we amend forms 12.902(e) and 12.996(a) as reflected in the appendix to this opinion. The forms are fully engrossed and ready for use. The amendments to form 12.902(e) shall take effect on January 1, 2011, at 12:01 a.m.; the amendments to form 12.996(a) shall take effect on October 1, 2010, at 12:01 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court. It is so ordered.

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

APPENDIX

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.902(e), CHILD SUPPORT GUIDELINES WORKSHEET (01/11)

When should this form be used?

You should complete this worksheet if child support is being requested in your case. If you know the income of the other party, this worksheet should accompany your financial affidavit. If you do not know the other party’s income, this form must be completed after the other party flies his or her financial affidavit, and serves a copy on you.

This form should be typed or printed in black ink. You should file the original with the clerk of the circuit court in the county where your case is filed and keep a copy for your records.

What should I do next?

A copy of this form must be mailed or hand delivered to the other party in your case, if it is not served on him or her with your initial papers.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information, see section 61.30, Florida Statutes.

Special notes...

If this is a domestic violence case and you want to keep your address confidential for safety reasons, do not enter the address, telephone, and fax information at the bottom of this form. Instead, file Petitioner’s Request for Confidential Filing of Address, Florida Supreme Court Approved Family Law Form 12.980(h).

The chart below contains the guideline amounts that you should use when calculating child support. This amount is based on the number of children and the combined income of the parents, and it is divided between the parents in direct proportion to their income or earning capaeity. From time to time, some of the amounts in the child support guidelines chart will change. Be sure you have the most recent version of the chart before using it.

Because the guidelines are based on monthly amounts, it may be necessary to convert some income and expense figures from other frequencies to monthly. You should do this as follows:

If payment is twice per month = Monthly amount Payment amount x 2
Yearly amount due If payment is every two weeks Payment amount tO 05 X
Monthly amount Yearly amount tO -I-
Yearly amount due If payment is weekly Weekly amount 07 tO X
Monthly amount Yearly amount t — ‘ tO •I*

If you or the other parent request that the court award an amount that is different than the guideline amount, you must also complete and attach a Motion to Deviate from Child Support Guidelines, Florida Supreme Court Approved Family Law Form 12.948.

Remember, a person who is NOT an attorney is called a nonlawyer. If a nonlawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

CHILD SUPPORT GUIDELINES CHART

IN THE CIRCUIT COURT OF THE _ JUDICIAL CIRCUIT, IN AND FOR _ COUNTY, FLORIDA

NOTICE OF FILING CHILD SUPPORT GUIDELINES WORKSHEET

PLEASE TAKE NOTICE, that {name} _, is filing his/ her Child Support Guidelines Worksheet attached and labeled Exhibit 1.

CERTIFICATE OF SERVICE

I certify that a copy of this Notice of Filing with the Child Support Guidelines Worksheet was [check one only] () mailed () faxed and mailed () hand delivered to the person(s) listed below on {date}

ADJUSTMENTS TO GUIDELINES AMOUNT. If you or the other parent is requesting the Court to award a child support amount that is more or less than the child support guidelines, you must complete and file Motion to Deviate from Child Support Guidelines, Florida Supreme Court Approved Family Law Form 12.943.

[check one only]

a. _Deviation from the guidelines amount is requested. The Motion to Deviate from Child Support Guidelines, Florida Supreme Court Approved Family Law Form 12.943, is attached.

b. Deviation from the guidelines amount is NOT requested. The Motion to Deviate from Child Support Guidelines, Florida Supreme Court Approved Family Law Form 12.943, is not attached.

IF A NONLAWYER HELPED YOU FILL OUT THIS FORM, HE/SHE MUST FILL IN THE BLANKS BELOW: [fill in all blanks]

I, {full legal name and trade name of nonlawyer} _, a nonlawyer, located at {street} -, {city} _ {state} , {phone} _, helped {name} _, who is the [check one only] _petitioner or respondent, fill out this form.

INSTRUCTIONS FOR FLORIDA FAMILY LAW RULES OF PROCEDURE FORM 12.996(a), INCOME DEDUCTION ORDER (10/10)

When should this form be used?

This form should be used in non-Title IVD cases when the court has ordered that support be paid by the obligor’s payor through an income deduction order.

This form includes several blanks that must be filled in as applicable. The obli-gor is the person who is obligated to pay the support ordered by the court and the obligee is the person entitled to receive the support awarded by the court.

In Paragraph 1, one of the three lines must be checked off. The court order that establishes the support award and/or the settlement or mediation agreement entered into between the parties should state the effective date of the Income Deduction Order. The appropriate effective date should be checked off in Paragraph 1.

The blank lines in Paragraph 2 should be completed tracking the same terms of support as are in the court order that establishes the support award and/or the settlement or mediation agreement. The first blank in each line should state the amount of the support payment and the second blank in each line should state the time period that covers said support award. For example, if the child support is $100 per month the first blank would say $ “100 ” and the second blank in that line would say “month ”. Similarly, if the payments are to be payable weekly, then the second blank would say “week ”. If there are any arrearages owed at the time the Income Deduction Order is entered, they must be included in the line for arrears, along with the amount and frequency of the payments due for the arrears, which shall be no less than 20% of the current support obligation. If the payments are to be payable through the State Disbursement Unit, the actual dollar amount of the service fee for the support awarded in your case (4% of each payment not to exceed $5.25 per payment) should be included on the appropriate line.

Paragraph 6 must be completed to show what percentage, if any, of a one-time payment made to the obligor should be applied to any arrearage in support that may be due to the obligee.

You must complete the schedule in paragraph 7 to show the amount of child support for all the minor children at the time of the entry of this order and the amount of the child support that will be owed for any remaining child(ren) after one or more of the children are no longer entitled to receive child support. You should also show in the schedule the day, month, and year that the child support obligation terminates for each minor child. The date child support terminates should be listed as the child’s 18th birthday unless the court has found that section 743.07(2), Florida Statutes, applies, or the parties have otherwise agreed to a different date. You should use the record existing at the time of this order for the basis of computing all child support obligations.

What should I do next?

For this order to be effective, it must be signed by the judge. This form should be typed or printed in black ink. After completing this form, you must first send a copy to the other party or his or her attorney, if he or she is represented by an attorney, for approval or objection to the form before you send it to the judge assigned to your case. If the opposing party or his or her attorney, if represented, approves the form order, you may send the original proposed order and two copies to the judge assigned to your case with a letter telling the judge that you have first sent a copy of this proposed order to the opposing counsel or party, if unrepresented, and that they have no objection to the judge signing this order. If the other party or his or her attorney, if represented, has an objection to the proposed order as completed by you, you must tell the judge that you have sent a copy of this proposed order to the opposing party or his or her counsel, if represented, and that they specifically object to the entry of the proposed form Income Deduction Order. You must also send stamped self-addressed envelopes to the judge addressed to you and the opposing party or his or her attorney, if represented. You should keep a copy for your own records. If the judge signs the Income Deduction Order, the judge will mail you and the opposing party (or their attorney) copies of the signed order in the envelopes you provide to the court.

Where can I look for more information?

Before proceeding, you should read “General Information for Self-Represented Litigants” found at the beginning of these forms. The words that are in “bold underline” in these instructions are defined there. For further information see section 61.1301, Florida Statutes.

Special Instructions ...

When the Income Deduction Order becomes effective (either immediately or delayed until arrearage), you must then also send a copy of the Income Deduction Order to the obligor’s employer along with a Notice to Payor, Florida Family Law Rules of Procedure Form 12.996(b), for the Income Deduction Order to take effect.

It is your responsibility to determine what extra steps and/or forms, if any, must be taken, supplied, and/or filed to insure the Income Deduction Order is implemented.

Remember, a person who is NOT an attorney is called a nonlawyer. If a non-lawyer helps you fill out these forms, that person must give you a copy of a Disclosure from Nonlawyer, Florida Family Law Rules of Procedure Form 12.900(a), before he or she helps you. A nonlawyer helping you fill out these forms also must put his or her name, address, and telephone number on the bottom of the last page of every form he or she helps you complete.

INCOME DEDUCTION ORDER (Non-Title IV-D Case)

TO: ANY PRESENT OR SUBSEQUENT EMPLOYERS/PAYORS OF OB-LIGOR

{name}_

YOU ARE HEREBY ORDERED to make regular deductions from all income due and payable to the above-named obli-gor in accordance with the terms of this order as follows:

1. This Income Deduction Order shall be effective

[Choose only one]

_ immediately.

_ upon a delinquency in the amount of $_ but not to exceed one month’s payment, pursuant to the order establishing, enforcing, or modifying the obligation.

_ beginning {date}

2. You shall deduct:

$_per_for child support. Child support shall be automatically reduced or terminated consistent with the schedule in paragraph 7.

$_per_for permanent alimony

$_ per _ for rehabilitative alimony

$_per_for_ arrears totaling $_

The deduction for arrears shall be no less than 20% of the current support obligation. After the full amount of any arrears is paid, you shall deduct for attorneys’ fees and costs owed until the full amount is paid.

$_ per _ for attorneys’ fees and costs totaling $_

$_ per _ for State of Florida Disbursement Unit fee (4% of each payment not to exceed $5.25 per payment)

$_Total amount of income to be deducted each pay period

3. You shall pay the deducted amount to the “State of Florida Disbursement Unit”, and mail it to the State of Florida Disbursement Unit P.O. Box 8500, Tallahassee, FL 32314-8500, (tel.) (877) 769-0251. All payments must include the obligor’s name (last, middle, first), obli-gor’s social security number, obligee’s name (last, middle, first), name of county where court order originated, and case number. All payments must be made by check, money order, cashier’s check, certified check, or through the Internet with access provided by the State of Florida www.floridasdu.com. No credit will be given for any payments made directly to the obligee without a court order permitting direct payments.

4. If a delinquency accrues after the order establishing, modifying, or enforcing the obligation has been entered and there is no order for repayment of the delinquency or a preexisting arrearage, a payor shall deduct an additional 20 percent of the current support obligation or other amount agreed to by the parties until the delinquency and any attorneys’ fees and costs are paid in full. No deduction may be applied to attorneys’ fees and costs until the delinquency is paid in full.

5. You shall not deduct in excess of the amounts allowed under the Consumer Credit Protection Act, 15 U.S.C. § 673(b), as amended.

6. You shall deduct (Choose only one) () the full amount, ()_%, or () none of the income which is payable to the obli-gor in the form of a bonus or other similar one-time payment, up to the amount of arrearage reported in the Income Deduction Order or the remaining balance thereof, and forward the payment to the State of Florida Disbursement Unit. For purposes of this subpar-agraph, “bonus” means a payment in addition to an obligor’s usual compensation and which is in addition to any amounts contracted for or otherwise legally due and shall not include any commission payments due an obligor.

7. Child Support Reduction/Termination Schedule. Child support shall be automatically reduced or terminated as set forth in the following schedule:

(Continue on additional pages for additional children)

8. This Income Deduction Order shall remain in effect so long as the underlying order of support is effective or until further order of the court.

STATEMENT OF OBLIGOR’S RIGHTS, REMEDIES, AND DUTIES

9. The obligor is required to pay all amounts and fees specified within this Income Deduction Order.

10. The amounts deducted may not be in excess of that allowed under the Consumer Credit Protection Act, 15 U.S.C. § 1673(b) as amended.

11. This income deduction order applies to all of the obligor’s current and subsequent payors and periods of employment.

12. A copy of the Income Deduction Order will be served upon the obligor’s payor or payors.

13. Enforcement of the Income Deduction Order may only be contested on the ground of mistake of fact regarding the amount owed pursuant to the order establishing, enforcing, or modifying the obligation, the arrearages, or the identity of the obligor, the payor, or the obli-gee.

14. The obligor is required to notify the obligee and, when the obligee is receiving IV-D services, the IV-D agency, within 7 days of any changes in the obligor’s address, payors, and the addresses of the obligor’s payors.

15. In a Title IV-D case, if an obligation to pay current support is reduced or terminated due to emancipation of a child and the obligor owes an arrearage, retroactive support, delinquency, or costs, income deduction continues at the rate in effect immediately prior to emancipation until all arrearages, retroactive support, delinquencies, and costs are paid in full or until the amount of withholding is modified.

ORDERED on

CIRCUIT JUDGE

COPIES TO:

Obligee

Obligor

Other: .

      . Form 12.996(a), as amended, is titled Income Deduction Order (Non-Title IV-D Case).

      . Chapter 2010-199, section 3, Laws of Florida, is effective October 1, 2010. See Ch. 2010-199, § 3, Laws of Fla. Chapter 2010-199, section 5, Laws of Florida is effective January 1, 2011. See Ch. 2010-199, § 6, Laws of Fla.

      . An original and nine paper copies of all comments must be filed with the Court on or before November 22, 2010, with a certificate of service verifying that a copy has been served on the committee chair, Steven Patrick Combs, 3217 Atlantic Boulevard, Jacksonville, Florida, 32207-8901, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The committee chair has until December 13, 2010, to file a response to any comments filed with the Court. Electronic copies of all comments and responses also must be filed in accordance with the Court's administrative order In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004).


text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—REPORT NO. 2010-03.
    No. SC10-636.
    Supreme Court of Florida.
    Oct. 7, 2010.
    Judge Lisa T. Munyon, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Ninth Judicial Circuit, Orlando, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted a report seeking amendments to a number of standard criminal jury instructions pertaining to prostitution and lewd or lascivious conduct. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee’s report is in response to the Court’s request that the Committee review the instructions on sexual offenses and consider “whether a uniform definition for ‘lewd and lascivious’ is needed and whether the term ‘sensual intent’ or ‘sensual intention’ should be included in that definition.” In re Standard Jury Instructions in Criminal Cases—Report No. 2008-04, 995 So.2d 476, 477 n. 1 (Fla.2008) (amendments to instructions on sexual battery and prostitution); see also In re Standard Jury Instructions in Criminal Cases—Report No. 2008-02, 998 So.2d 1138, 1139 n. 2 (Fla.2008) (amendments to instructions on lewd and lascivious molestation, conduct, and exhibition). The Committee’s proposals include the following: amending the definition of “lascivious” in instructions 11.8 and 11.9; adding the definition of “lewd and lascivious” to instruction 11.11; correcting instruction 23.2 to include the definition for “lewdness” previously authorized by the Court but inadvertently published as struck-through, see In re Standard Jury Instructions in Criminal Cases—Report No. 2008-04, 995 So.2d at 476 n. 1, 483; and adding the definition of “procure” to instruction 23.6.

The Committee published its proposals in the February 1, 2010, edition of The Florida Bar News. No comments were received. Having considered the Committee’s report, we hereby authorize the publication and use of the instructions as they appear in the attached appendix. In authorizing the publication and use of these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. New language is indicated by underlining and deleted language is indicated by struck-through type. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

11.8 COMMITTING UNNATURAL AND LASCIVIOUS ACT

§ 800.02, Fla.Stat.

To prove the crime of Committing an Unnatural and Lascivious Act, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) (copy from charge) with (person named in charge).
2. The act was unnatural and lascivious.

DefinitionsL

“Unnatural” means not in accordance with nature or with normal feelings or behavior.

“Lascivious” means a wicked, lustful or unchaste, licentious, or sensual intent on the part of the person doing an act.normally tending to excite a desire for-sexual satisfaction,

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and revised in 2010.

11.9 EXPOSURE OF SEXUAL ORGANS (IN A VULGAR OR INDECENT MANNER)

§ 800.03, Fla.Stat.

To prove the crime of [Indecent Exposure] [or] [Nakedness], the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant)
[exposed or exhibited [his] [her] sexual organs].
[was naked].
2. [He] [She] [did so] [was naked]
[in a public place].
[on the private premises of another].
[so near the private premises of another as to be seen from those private premises].
3. (Defendant) intended the [exposure or exhibition of [his] [her] sexual organs] [or] [nakedness] to be in a vulgar, indecent, lewd, or lascivious manner.
4.The [exposure or exhibition of the sexual organs] [or] [nakedness] was in a vulgar, indecent, lewd, or lascivious manner.

Proof of mere nudity or exposure is not sufficient to sustain a conviction.

DefinitionsL

As used in regard to this offense the words “vulgar,” “indecent,” “lewd,” and “lascivious” mean the same thing. They mean an -unlawful-indulgence-in lust or a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing thean act.

Acts are not vulgar, indecent, lewd, or lascivious unless such acts cause offense to one or more persons viewing those acts or unless the acts substantially intrude upon the rights of others.

A “public place” is any place intended or designed to be frequented or resorted to by the public.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and was amended in 1997 [697 So.2d 84] and 2010.

11.10 LEWD, LASCIVIOUS, INDECENT ASSAULT OR ACT UPON OR IN THE PRESENCE OF CHILD; SEXUAL BATTERY

§ 800.04, Fla. Stat.

Give only for those offenses committed on-er-he/ore October 1, 1999.

To prove the crime of (crime charged), the State must prove the following two elements beyond a reasonable doubt:

1. (Victim) was under the age of 16 years.
Give as applicable.
2. (Defendant)
a. [made an assault upon (victim) in a lewd, lascivious, or indecent manner].
[handled or fondled (victim) in a lewd, lascivious, or indecent manner].
b. (Defendant) committed upon (victim) or forced or enticed (victim) to commit
[actual or simulated sexual intercourse].
[deviate sexual intercourse],
[sexual bestiality].
[masturbation].
[sadomasochistic abuse].
[actual lewd exhibition of the genitals],
[any act or conduct which simulated that sexual battery was being or would be committed on (victim) ].
c. (Defendant)
[committed an act [upon] [with] (victim) in which the sexual organ of the [ (defendant) ] [ (victim) ] penetrated or had union with the [anus] [vagina] [mouth] of [(victim) ] [ (defendant) ]].
[committed an act upon (victim) in which the [anus] [vagina] of (victim) was penetrated by an object].
d. (Defendant) knowingly committed a lewd or lascivious act in the presence of (victim).

Definitions.

Give in all cases.

Neither the victim’s lack of chastity nor the victim’s consent is a defense to the crime charged.

Give when § 800.01,(1), Fla. Stat., is charged.

As used in regard to this offense the words “lewd,” “lascivious,” and “indecent” mean the same thing. They mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

Give when assault is charged under § 800.01(1), Fla. Stat.

An “assault” is an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.

Give when § 800.0U(h), Fla. Stat., is charged.

As used in regard to this offense the words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

“In the presence of” means that (victim) saw, heard, or otherwise sensed that the act was taking place.

See State v. Werner, 609 So.2d 585 (Fla.1992).

Give applicable definitions from § 8^7.001, Fla. Stat., when § 800.0k(2), Fla. Stat, is charged.

There is no need to make reference to the words “without committing the crime of sexual battery” because this refers to forcible sexual relations. Lanier v. State, US So.2d 178 (Fla. 3d DCA 1983); Chapters 84-86, Laws of Florida.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and was amended in 1985 [477 So.2d 985], 1987 [508 So.2d 1221], 1992 [603 So.2d 1175], 1995 [657 So.2d 1152], and-2008 [976 So.2d 1081], and 2010.

11.11 LEWD OR LASCIVIOUS OFFENSES COMMITTED UPON OR IN THE PRESENCE OF AN ELDERLY PERSON OR DISABLED PERSON

§ 825.1025, Fla. Stat.

To prove the crime of [Lewd or Lascivious Battery] [Lewd or Lascivious Molestation] [Lewd or Lascivious Exhibition] upon or in the Presence of an Elderly Person or Disabled Person, the State must prove the following three elements beyond a reasonable doubt:

1. (Victim) was [an elderly] [a disabled] person.
Give 2a, 2b, or 2c as applicable.
2. a. (Defendant) committed lewd and lascivious battery by encouraging, forcing, or enticing (victim) to engage in [sadomasochistic abuse] [sexual bestiality] [prostitution] [any act involving sexual activity].
b. (Defendant) committed lewd and lascivious molestation of (victim) by intentionally touching in a lewd and lascivious manner [his] [her] [breasts] [genitals] [genital area] [buttocks] [clothing covering [his] [her] [breasts] [genitals] [genital area] [buttocks]].
c. (Defendant) committed lewd and lascivious exhibition to (victim) by [intentionally masturbating] [intentionally exposing [his] [her] genitals in a lascivious manner] [committing any other lewd or lascivious act not involving physical or sexual contact with (victim) including but not limited to [sadomasochistic abuse] [sexual bestiality] [simulated any act involving sexual activity]].
3. (Defendant) knew or reasonably should have known that the (victim) lacked the capacity to consent or failed to give consent.

Definitions. Give as applicable

The words “lewd” and “lascivious” mean the same thing and mean a wicked, lustful, unchaste, licentious, or sensual intent on the part of the person doing an act.

If 2a or 2c is alleged, define the act charged from § 8^7.001, Fla. Stat.

“Disabled adult” means a person 18 years of age or older who suffers from a condition of physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness, or who has one or more physical or mental limitations that restrict the person’s ability to perform the normal activities of daily living.

“Elderly person” means a person 60 years of age or older who is suffering from the infirmities of aging as manifested by advanced age or organic brain damage, or other physical, mental, or emotional dysfunctioning, to the extent that the ability of the person to provide adequately for the person’s care or protection is impaired.

“Lacks capacity to consent” means an impairment by reason of mental illness, developmental disability, organic brain disorder, physical illness or disability, chronic use of drugs, chronic intoxication, short-term memory loss, or other cause, that causes an elderly person or disabled adult to lack sufficient understanding or capacity to make or communicate reasonable decisions concerning the elderly person’s or disabled adult’s person or property.

Lesser Included Offenses

Comment

This instruction was adopted in 2007 [SC07-325, Corrected-Qpiaion) August 30, 2007965 So.2d 811] and amended in 2010. See Jennings v. State, 920 So.2d 32 (Fla. 2d DCA 2005).

23.1 MAINTAINING A PLACE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION

§ 796.07(2)(a), Fla. Stat.

To prove the crime of Maintaining a Place of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [established] [owned] [maintained] [operated] any [place] [structure] [building] [conveyance] for the purpose of [lewdness] [assignation] [prostitution].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotesmeans wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Assignation” means the making of any appointment or engagement for prostitution or lewdness, or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23.2 SOLICITING FOR THE PURPOSE OF PROSTITUTION OR A LEWD OR INDECENT ACT

§ 796.07(2)(b), Fla. Stat.

To prove the crime of Soliciting for the Purpose of [Prostitution] [Any Lewd or Indecent Act], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered] [offered to secure] [agreed to secure] another person for the purpose of [prostitution] [any lewd or indecent act].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

A “lewd act” is any indecent or obscene act. “Indecent” means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Indecent” connotes wicked, lustful, unchaste, licentious, or- sensual — intention on the part of the person doing the

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23.3 RECEIVING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION

§ 796.07(2)(c), Fla. Stat.

To prove the crime of Receiving for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

Give element 1 or element 2 as applicable.
1. (Defendant) [received] [offered to receive] [agreed to receive] a person into a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].
2. (Defendant) permitted a person to remain in a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotesmeans wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23. 4 TRANSPORTING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS OR ASSIGNATION

§ 796.07(2)(d), Fla. Stat.

To prove the crime of Transporting for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [directed] [took] [transported] [offered or agreed to [direct] [take] [transport]] a person to [a place] [a structure] [a building] [another person].
2. At the time, (defendant) knew or had reasonable cause to believe that such [directing] [taking] [transporting] was for the purpose of [prostitution] [lewdness] [assignation].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotesmeans wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23.5 OFFERING TO COMMIT, COMMITTING, OR ENGAGING IN PROSTITUTION, LEWDNESS, OR ASSIGNATION

§ 796.07(2)(e), Fla. Stat.

To prove the crime of Offering to Commit, Committing, or Engaging in [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [offered to commit] [committed] [engaged in] [prostitution] [lewdness] [assignation].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotes means wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23.6 SOLICITING FOR PROSTITUTION, LEWDNESS,

OR ASSIGNATION

§ 796.07(2)05, Fla. Stat.

To prove the crime of Soliciting for [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [solicited] [induced] [enticed] [procured] another to commit [prostitution] [lewdness] [assignation].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotesmeans wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

To “solicit” means to ask earnestly or to try to induce the person solicited to do the thing solicited.

To “procure” means to persuade, induce, prevail upon or cause a person to do something.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

23.7 ENTERING FOR THE PURPOSE OF PROSTITUTION, LEWDNESS, OR ASSIGNATION

§ 796.07(2)(g), Fla. Stat.

To prove the crime of Entering for the Purpose of [Prostitution] [Lewdness] [Assignation], the State must prove the following element beyond a reasonable doubt:

(Defendant) [resided in] [entered] [remained in] a [place] [structure] [building] [conveyance] for the purpose of [prostitution] [lewdness] [assignation].

Definitions.

“Prostitution” is the giving or receiving of the body for sexual activity for hire but excludes sexual activity between spouses.

“Lewdness” is any indecent or obscene act. “Indecent” connotesmeans wicked, lustful, unchaste, licentious, or sensual intention on the part of the person doing the act.

“Sexual activity” means oral, anal, or vaginal penetration by, or union with, the sexual organ of another; anal or vaginal penetration of another by any other object; or the handling or fondling of the sexual organ of another for the purpose of masturbation; however, the term does not include acts done for bona fide medical purposes.

“Assignation” includes the making of any appointment or engagement for prostitution or lewdness or any act in furtherance of such appointment or engagement.

A “structure” is any building of any kind, either temporary or permanent, which has a roof over it and includes any closely adjoining land enclosed by a fence or wall.

A “conveyance” means any motor vehicle, ship, vessel, railroad car, trailer, aircraft, or sleeping car.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

This instruction was adopted in 1981 and amended in 2008 and 2010.

      . The Committee proposes amendments to the following instructions: 11.8 — Committing Unnatural and Lascivious Act; 11.9 — Exposure of Sexual Organs (in a Vulgar or Indecent Manner); 11.10 — Lewd, Lascivious, Indecent Assault or Act upon or in the Presence of Child; Sexual Battery; 11.11 — Lewd or Lascivious Offenses Committed upon or in the Presence of an Elderly Person or Disabled Person; 23.1 — Maintaining a Place of Prostitution, Lewdness, or Assignation; 23.2 — Soliciting for the Purpose of Prostitution or a Lewd or Indecent Act; 23.3 — Receiving for the Purpose of Prostitution, Lewdness or Assignation; 23.4 — Transporting for the Purpose of Prostitution, Lewdness or Assignation; 23.5 — Offering to Commit, Committing, or Engaging in Prostitution, Lewdness, or Assignation; 23.6 — Soliciting for Prostitution, Lewdness, or Assignation; and 23.7' — Entering for the Purpose of Prostitution, Lewdness, or Assignation.

      . In addition, a number of the Committee's proposals include updating the word choice in favor of more "plain” language use.

      . The amendments as reflected in the appendix are to the Criminal Jury Instructions as they appear on the Court’s website at www. floridasupremecourt.org/jury_instructions/ instructions.shtml. We recognize that there may be minor discrepancies between the instructions as they appear on the website and the published versions of the instructions. Any discrepancies as to instructions authorized for publication and use after October 25, 2007, should be resolved by reference to the published opinion of this Court authorizing the instruction.


text:
    SHANDS TEACHING HOSPITAL & CLINICS, INC., Appellant, v. Michael Adam DUNN and Kathie Lynette Dunn, Individually and as personal Representatives of the estate of Michael Dylan Dunn, Deceased, and University of Florida Board of Trustees, Appellees.
    No. 1D10-1753.
    District Court of Appeal of Florida, First District.
    Sept. 21, 2010.
    Susan L. Kelsey, Tallahassee, for Appellant.
    Rebecca Bowen Creed, Jacksonville, for Appellees.
   PER CURIAM.

DISMISSED. See Hinote v. Ford Motor Co., 958 So.2d 1009 (Fla. 1st DCA 2007).

LEWIS, ROWE, and MARSTILLER, JJ., concur.


author: THOMAS, J. BENTON, J.,

text:
    ADVENT OIL & OPERATING, INC., and Brandan Lowther, Appellants, v. S & E ENTERPRISES, LLC, Appellee.
    No. 1D10-56.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2010.
    Rehearing Denied Nov. 23, 2010.

      Robert 0. Beasley of Litvak, Beasley & Wilson, LLP, Pensacola, for Appellants.
    Parker B. Smith, Destín, for Appellee.
   THOMAS, J.

The subject matter of this appeal is a Joint Venture Ownership Agreement (“contract”) agreed upon by Appellants and Appellee. On appeal, Appellants argue the trial court reversibly erred by finding in favor of Appellee and granting partial summary judgment as to liability and final judgment as to damages. We affirm.

We find no fault with the trial court’s decision on final judgment regarding damages, and we decline to discuss that issue; we write to explain why the trial court did not err by granting partial summary judgment in Appellee’s favor.

Facts

The contract governed the parties’ relationship regarding a saltwater disposal well (SDW) in Oklahoma. According to the contract, Appellants planned to develop a number of oil wells and needed an efficient way to dispose of saltwater, a natural byproduct of the oil pumping process. In order to facilitate that need, Ap-pellee agreed to furnish $250,000 in venture capital; in return, Appellants agreed to drill, develop, provide engineering, furnish all permits to the appropriate authorities, and maintain the well consistent with a turnkey operation.

The parties substantially differ in their interpretation of Paragraph 7 of the contract:

7. [Appellant] specifically guarantees a SDW capable of a minimum capacity to produce revenue sufficient to recover [Appellee’s] venture capital investment of $250,000.00 plus seven percent interest (7%) per annum ($70,000.00) in four years from the date of receiving funding from [Appellee]. The amount due [Ap-pellee] would be minus the net profit paid to [Appellee] by [Appellant] during that 4 year period.

According to Appellants’ interpretation of Paragraph 7, its contractual obligations ceased once the SDW became capable of receiving an amount of saltwater capable of producing sufficient revenue to recover Appellee’s investment. During oral argument, Appellants took the position that, under this paragraph, it was entitled to abandon the SDW without penalty the day after completion if the well was capable of receiving the necessary amount of saltwater. It is undisputed that Appellants drilled an SDW with a minimum capacity capable of producing sufficient revenue to recover Appellee’s investment.

Appellee, on the other hand, argued that Paragraph 7 required Appellants to maintain the SDW for a four-year period in order for the well to actually produce sufficient revenue to provide a complete return of its investment, plus interest. Ap-pellee asserts Appellants breached that obligation when it unilaterally sold the SDW for salvage, plugged the well, and abandoned the project before the four-year period ended. Appellants counter that it had no choice but to return the property to its natural condition because the land lease upon which the SDW was located had expired. The land lease expired when Appellants’ first oil well proved to be unproductive and Appellants decided not to pursue the project.

The trial court granted partial summary judgment, determining Appellants breached Paragraph 7 of the contract by abandoning the well and salvaging it within the four-year period. A final, full evidentiary hearing was held more than two years later on damages. During the final hearing, the court found that several terms in the contract were ambiguous, and the court allowed lay and expert testimony to define those terms. The trial court then entered a final order determining the contract required a complete return of Appel-lee’s investment, plus seven percent interest.

Analysis

“Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Arquette Dev. Corp. v. Hodges, 934 So.2d 556, 558 (Fla. 1st DCA 2006). “A grant of summary judgment based upon construction of a written instrument is reviewed de novo.” Id. We are free to reassess the parties’ contract and arrive at a different conclusion than the trial court. Emerald Pointe Prop. Owners Ass’n, Inc. v. Commercial Constr. Indus., Inc., 978 So.2d 873, 877 (Fla. 4th DCA 2008) (quoting Sugar Cane Growers Coop, of Fla., Inc. v. Pinnock, 735 So.2d 530, 534-35 (Fla. 4th DCA 1999)).

There is no doubt that the contract was not a model of clarity: some provisions purported to guarantee a complete return on investment with interest; other paragraphs allowed the SDW to be abandoned for lack of profits, with the parties sharing the cost and revenue from recovery or salvage. In its final order, the trial court found that the contract was an investment contract, not a joint venture, despite the repeated use of the term “joint venture” throughout the contract. This finding was ostensibly based on the parties’ intentions, as evidenced by reading the contract in its totality, coupled with parties’ testimony. Testimony at the final hearing revealed that Appellee was not sophisticated in the oil business, several terms in the contract had industry-specific definitions, and parol evidence was required to define those terms. See Emerald Pointe Prop. Owners’ Ass’n, Inc., 978 So.2d at 877 (noting that extrinsic evidence may be admitted to explain the parties’ intent when terms are ambiguous); NCP Lake Power, Inc. v. Fla. Power Corp., 781 So.2d 531, 536-37 (Fla. 5th DCA 2001) (explaining extrinsic evidence may be admitted to explain technical terms in a contract that have a definite meaning among those dealing in certain commodities even if the contract is unambiguous).

At oral argument, Appellants argued the ambiguities in the contract require a full evidentiary hearing on the issue of liability. Even if we agreed with Appellants’ interpretation of the contract, remand would not be the correct remedy. See Arquette Dev. Corp., 934 So.2d at 558 (reversing grant of partial summary judgment where this court determined trial court’s interpretation was erroneous under de novo review). The key question in this case, whether Appellants breached the contract, turns upon the trial court’s interpretation of Paragraph 7. Further discovery would not have created disputed issues of material fact as to that issue; thus, partial summary judgment was proper. Accord Barco Holdings, LLC v. Terminal Inv. Corp., 967 So.2d 281, 289 (Fla. 3d DCA 2007) (explaining summary judgment may be granted when the future discovery will not create a- disputed issue of material fact). None of the facts developed during the final hearing on damages would have created a material issue of fact regarding liability.

Although the contract could have been clearer, we cannot agree with Appellants’ interpretation of the key contractual provision. The parties’ obvious intent, based upon a plain reading of the contract, was to construct and operate an SDW capable of producing revenue sufficient to provide a return of Appellee’s investment, with interest, over a four-year period. Accordingly, we approve the trial court’s decision granting partial summary judgment.

AFFIRMED.

ROWE, J., concurs; BENTON, J., Dissents With Opinion.

BENTON, J.,

dissenting.

Advent Oil & Operating, Inc. (AO & 0) and S & E Enterprises, LLC (S & E) were partners in an oil well on land belonging to a third party, when they entered into the agreement at issue here. They hoped the oil well (in which AO & O and S & E had other partners) would yield oil and gas over an extended period, and were aware that, in that event, substantial quantities of salt water (which would accompany petroleum to the surface) would need to be dealt with, as a matter not only of industry practice but also in order to meet requirements the land owner had placed in the oil well partnership’s land lease.

To that end, AO & O and S & E agreed to a separate joint venture which would build a disposal well to handle saltwater byproduct, a service for which the joint venture would have been able to charge the oil well partnership. All went according to plan until the oil well “proved to be unproductive.” Ante, p. 72. At that juncture, S & E sued AO & 0, demanding the return of its entire investment in the saltwater disposal well joint venture, with interest.

Viewing their agreement as creating a joint venture that had failed through neither’s fault, AO & 0 took the position that it had drilled the disposal well and otherwise complied fully with the terms of the agreement, and had no liability to S & E. Only after S & E filed suit was the saltwater disposal well dismantled (as required by the joint venture’s land lease) and sold for salvage.

Despite numerous factual disputes, the trial court granted S & E partial summary judgment (as to liability) on the theory AO & 0 “breached Paragraph 7 of the contract by abandoning the well and salvaging it within the four-year period.” Ante, p. 72. Chief among the fact disputes was the parties’ intent in entering into the joint venture agreement.

The majority opinion suggests that any error in the grant of summary judgment was cured when a “full evidentiary hearing was held more than two years later on damages.” Ante, p. 72. But see Hart Properties, Inc. v. Slack, 159 So.2d 286, 240 (Fla.1963) (“[Djefendant was entitled to have his motion for summary judgment decided on the pleadings as they stood at the time of the hearing.”).

An evidentiary hearing on damages is not an adequate substitute for the trial on liability of which partial summary judgment deprived AO & 0. When summary judgment has established liability, liability is no longer at issue at a trial or hearing on damages. Florida Rule of Civil Procedure 1.510(d) provides that if summary judgment “is not rendered upon the whole case ... and a final hearing is necessary, the court ... shall thereupon make an order specifying the facts that appear without substantial controversy ... and directing such further proceedings in the action as are just,” and contemplates that the final hearing shall be “limited to the remaining disputed issue or issues.” Fontainebleau Hotel Corp. v. Young, 162 So.2d 303, 304 (Fla. 3d DCA 1964). Here, the order granting partial summary judgment specifically found that AO & 0 had breached the joint venture agreement and reserved jurisdiction only on the issue of S & E’s damages, attorney’s fees and costs.

AO & 0 had no notice that any issue as to liability was to be revisited, and there is no indication that any was: After the hearing on damages, the trial court ordered “a complete return of Appellee’s investment, plus seven percent interest.” Despite the contract language evincing a joint venture, the trial court awarded damages as if AO & O had executed a promissory note.

I respectfully dissent from today’s decision to affirm the judgment below.

      . The majority opinion notes: “It is undisputed that Appellants drilled an SDW [saltwater disposal well] with a minimum capacity capable of producing sufficient revenue to recover Appellee's investment.” Ante, p. 71.

      . The trial "court found that several terms in the contract were ambiguous.” Ante, p. 72.

      . The scheduling order entered September 19, 2007, directs the parties to exchange witness and exhibit lists for evidence "at the damages portion of this case.” AO & O filed a final witness and exhibit list for the trial "on the issue of damages.” The various notices of trial and orders setting or continuing trial do not give notice that any issue other than damages would be considered at the subsequent hearing.

      . The right to reasonable notice implicates constitutional due process concerns. "Procedural due process requires both fair notice and a real opportunity to be heard.” Borden v. Guardianship of Borden-Moore, 818 So.2d 604, 607 (Fla. 5th DCA 2002) (quoting Keys Citizens for Responsible Gov’t v. Fla. Keys Aqueduct Auth., 795 So.2d 940, 948 (Fla.2001)). "The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane v. Cent. Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 94 L.Ed. 865 (1950) (citations omitted). The opportunity to be heard must be "at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976) (quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 14 L.Ed.2d 62 (1965)). AO & O had no notice that liability under the agreement was up for reconsideration by the court at the hearing on damages. See State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1074 (Fla. 4th DCA 2001) (holding that notice "of a change in the pleadings or the issues to be litigated at trial is an issue of elementary due process”); Smith v. Unemployment Appeals Comm’n, 751 So.2d 639, 640 (Fla. 1st DCA 1999) ("Due process requires that the claimant receive proper notice of the issues to be heard or expressly waive such notice; otherwise the claimant is deprived of a fair hearing.”); Town of Jupiter v. Andreff, 656 So.2d 1374, 1378 (Fla. 1st DCA 1995) ("Parties are entitled to notice so that they may fairly present their case.”); Se. Recycling v. Cottongim, 639 So.2d 155, 157 (Fla. 1st DCA 1994) ("An order that is not in accord with the understanding with which the workers’ compensation hearing was undertaken and participated in is a denial of due process and must be reversed.”); Thomas v. Harris, 634 So.2d 1136, 1136-37 (Fla. 1st DCA 1994) (holding trial court erred in awarding temporary custody of child based on aggravation of child’s asthma resulting from cigarette smoking of wife’s new husband and mother-in-law, because the motion for temporary custody alleged solely that the child's progress in school had deteriorated and a "court cannot modify a judgment unless the issue of modification is properly presented to it by appropriate pleadings and each party is given an opportunity to respond and a hearing had with the necessary proof adduced”); Margulies v. Margulies, 528 So.2d 957, 959 (Fla. 3d DCA 1988) ("A trial court violates a litigant's due process rights when it expands the scope of a hearing to address and determine matters not noticed for hearing.”).

      .The joint venture agreement contemplated a going enterprise whose profits would vary with the amount of saltwater disposed of:
      1. S & E will provide a capital investment of $250,000.00 (the "Capital Investment”) and receive seventy-five (75%) of the NET profits as an investment interest and will have no further capital investment claims by AO & O and will be indemnified by AO & O from any debts, claims or any cause of action.
      2. AO & O will drill, develop, provide engineering, furnish all permits to the appropriate authorities and maintain said SDW, holding harmless S & E from all expense and claims consistent with a turn-key drilling contract receiving a twenty-five percent (25%) of the NET profits as a working interest.
      3. S & E's capital investment shall not exceed the original amount of venture capital. See Estimate of Construction Costs Report-Exhibit # 3
      4. AO & O has completed surveying and has located the SDW site and initiated engineering for all aspects of this project.
      5. AO & O will complete and have operational the SDW in 120 days or less from the signing of this agreement.

      12.Barrels of saltwater will be metered at the user oil well and certification of calibration of such meter will be provided by AO & O to S & E upon request.
      13. AO & O will make monthly payments of profit to S & E which will be due no later than 50 days after the end of the operating month. Should payments be late a one and one-half percent (1.5%) interest on the amount due for each month in addition to any other fees or costs will be due. In the event of collection, additional fees and costs including attorney’s fees will be due.
      14. Profits from disposal of saltwater will be made in the amount of seventy-five percent (75%) to S & E and twenty five percent (25%) to AO & O. Operating expenses will be allocated at the same percentage.
      15. Operating expenses include insurance, electricity, monthly charges from landowner, maintenance and repairs, and in no case should exceed $1,500.00 per month. AO & O’s twenty-five percent (25%) share will be reduced by the amount of the excess operating cost until operating cost no longer exceeds $1,500.00 per month.

      24. If it becomes necessary to plug and abandon the SDW the cost as well as the money from the recovery would be shared on previously agreed percentages of seventy-five (75%) to S & E and twenty-five percent (25%) to AO & O.


author: SAWAYA, J.

text:
    William LANGFORD, Appellant, v. PARAVANT, INC. and Paravant Computer, Etc., Appellees.
    Nos. 5D08-4320, 5D09-2143.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2010.
    Rehearing Denied Dec. 1, 2010.
    Edward C. Tietig, Palm Bay and Nancy Allen Wegener, Pro Hac Vice, Clarksdale, Mississippi, for Appellant.
    Larry A. Klein, of Holland & Knight LLP, West Palm Beach and Stephen T. Ball and David A. Jones of Holland & Knight, Orlando, for Appellees.
   SAWAYA, J.

William Langford appeals the final judgment on liability and damages, which he claims awarded him only a fraction of the total amount of commissions he was owed from his former employer, Paravant, Inc. Langford raises several issues: (1) whether the trial court erred when it sua sponte bifurcated the trial; (2) whether the trial court erred in refusing to allow certain evidence to be considered by the jury; 3) whether the instructions and verdict form the trial court gave to the jury were improper; and 4) whether the trial court erred in denying Langford’s motion for judgment as a matter of law. We have thoroughly reviewed the record that has been provided to us, and we are unable to conclude that reversible error occurred as to any of these issues. Accordingly, we affirm the judgment under review.

Langford also appeals the order denying his motion for attorney’s fees. Clearly, Langford is entitled to fees pursuant to section 448.08, Florida Statutes (2008), which allows awards of attorney’s fees and costs to successful litigants in actions for unpaid wages. “Unpaid commissions are considered wages for purposes of section 448.08.” Hingson v. MMI of Fla., Inc., 8 So.3d 398, 401 (Fla. 2d DCA 2009). As the court further explained in Hingson:

The policy behind section 448.08 is to provide “a means to equalize the disparate positions of employees in attempting to collect for the fruits of their labors.” Tampa Bay Publ’ns, Inc. v. Watkins, 549 So.2d 745, 747 (Fla. 2d DCA 1989). The fact that Hingson did not recover all the commissions she sought does not alter her status as prevailing party under section 448.08. Although she recovered less than the amount that she claimed, she established, and the trial court found, that the Employers breached the employment agreement and that she was entitled to damages and her statutorily authorized attorney’s fees as a result of that breach.

Id. Similarly, in Community Design Corp. v. Antonell, 459 So.2d 343, 346 (Fla. 3d DCA 1984), review denied, 469 So.2d 748 (Fla.1985), the court held:

Addressing CDC’s second theory, we hold that a party prevails within the meaning of section 448.08 when there is an affirmative judgment rendered, even if it is for less than the amount claimed and recovery is not had on all counts. Cf. Hub Cap Heaven, Inc. v. Goodman, 431 So.2d 323 (Fla. 3d DCA 1983); American Insulation of Fort Walton Beach, Inc. v. Pruitt, 378 So.2d 839 (Fla. 1st DCA 1979); Peter Marich & Associates, Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978). (These cases reached the same holding in interpreting a similar provision of the Florida Statutes, § 713.29.)

Id. at 346.

We affirm the final judgment on liability and damages. We reverse the order denying Langford’s motion for fees and costs and remand this case to the trial court to determine the amount to award Langford.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN, J., and PARSONS, W.A., Associate Judge, concur.


author: PER CURIAM. MARSTILLER, J.,

text:
    MORTON’S OF CHICAGO, INC. and Broadspire, a Crawford Company, Appellants, v. Carlos LIRA, Appellee.
    No. 1D09-6248.
    District Court of Appeal of Florida, First District.
    Oct. 13, 2010.
    Rehearing Denied Nov. 19, 2010.

      Douglas W. Barnes of Barnes & Simmons, P.A., Miami Lakes, for Appellants.
    Marjorie Gadarian Graham of Marjorie Gadarian Graham, P.A., Palm Beach Gardens, and Bram J. Gechtman, Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the employer/carrier (E/C) challenges an order of the Judge of Compensation Claims (JCC) which found Claimant’s cervical herniations were compensable and awarded medical and indemnity benefits. The E/C raises six issues on appeal, challenging various aspects of the order. We affirm in part, reverse in part, and remand for additional proceedings.

Compensability

Competent substantial evidence supports the JCC’s finding that Claimant suffered cervical herniations caused in major part by his work activities on April 15, 2008. Further, the E/C’s arguments relating to compensability of the cervical herni-ations are predicated on a view of the evidence permissibly rejected by the JCC. Accordingly, we affirm the JCC’s findings of compensability.

We do not reach the E/C’s argument that the JCC should have excluded the opinion testimony of Claimant’s independent medical examiner (IME) based on the amount he charged for deposition testimony. The E/C knew, at the time of the deposition, the amount of the doctor’s charges; thus, by not timely objecting to those charges, the E/C waived any argument directed thereto. See Shea v. Durty Two, Inc., 738 So.2d 510 (Fla. 1st DCA 1999) (stating objection to doctor’s status as an IME must be made at or before the time medical opinion testimony is rendered). Therefore, we also need not reach the issue of whether under the current workers’ compensation law, a properly designated IME loses this status (and thus, the accompanying ability to provide medical opinion testimony) upon charging an impermissible amount for deposition testimony.

Temporary Indemnity Benefits

Regarding the JCC’s award of temporary total disability (TTD) benefits from April 21, 2008, through February 6, 2009, Claimant concedes competent substantial evidence does not support the entirety of the award, but argues TTD is justified for an unspecified period of time surrounding his surgery. In addition, Claimant argues the case should be remanded for a determination as to his entitlement to temporary partial disability (TPD) benefits which were pled in the alternative. There is little question that Claimant’s four-day hospitalization (from October 24, 2008, through October 27, 2008) for a two-level diskectomy and fusion qualifies as a period of total disability, and thus, we affirm the award of TTD for this period. Because the record may establish a sufficient basis for the award of TPD benefits for the remainder of the period in question, and because Claimant’s entitlement to TPD was not addressed by the JCC (by virtue of the alternative award of TTD), we remand for additional proceedings to determine Claimant’s entitlement to TPD benefits from April 21, 2008, through October 28, 2008, and for the period of October 28, 2008, through February 6, 2009.

Medical Bills and Expenses

Relative to the medical bills and expenses awarded by the JCC, the E/C made it clear in the pretrial stipulation that it was requiring Claimant to prove each and every bill and expenditure relating to the injuries claimed as compensable, and it would not agree to handle this issue as an administrative matter. Claimant did not move for bifurcation of the trial proceedings by requesting severance of the issue of compensability from those issues relating to the precise benefits awardable, as permitted by Florida Rule of Appellate Procedure 9.180(b)(1)(C). Claimant also did not seek any other form of relief or reservation on the multitude of medical bills he pled and placed at issue before the JCC, as permitted by section 440.29(1), Florida Statutes. The record reflects Claimant introduced 95 pages of bills, costs, and expenditures which were allegedly incurred as a result of his workplace accident and injuries. However, Claimant failed to introduce any meaningful evidence connecting, or otherwise correlating, a vast majority of the bills to the medical services received.

By review of the record, we conclude competent substantial evidence supports the JCC’s award of the January 9, 2009, bill from Doctors Hospital for services provided from September 22, 2009, through September 24, 2009. The bill corresponds to a hospital admission (the details of which are demonstrated by admissible medical records) during which Claimant’s compensable injuries were evaluated and it was recommended Claimant undergo surgery at Jackson Memorial Hospital, treatment which the JCC found was reasonable and necessary. Likewise, competent substantial evidence supports the JCC’s award of a February 27, 2009, bill from Jackson Health Systems (Jackson Memorial Hospital) which corresponds with Claimant’s admission to Jackson Memorial Hospital for the performance of an anterior cervical diskectomy and fusion at the C5-6 and C6-7 level. This treatment was documented by admissible medical records and was found to be reasonable and necessary by the JCC.

Because the two aforementioned bills are relevant and probative of charges incurred for definitive surgical and pre-sur-gical treatment of herniated discs in the cervical spine (treatment which the JCC found reasonable and necessary), the bills, in tandem with the medical records and medical opinion testimony, create an issue of fact to be resolved by the JCC. See Garrett v. Morris Kirschman & Co., 336 So.2d 566, 571 (Fla.1976) (stating expert testimony is not necessary to render medical bills admissible in evidence). The JCC acted within his prerogative in determining the bills were incurred for the treatment provided by the respective facilities on the dates of treatment reflected on the bills for the compensable injuries.

Significantly, no countervailing evidence was introduced indicating the bills were incurred for conditions other than the com-pensable injuries. Instead, the E/C argued only that the injuries were not com-pensable, and this argument was rejected by the JCC. Because the applicable burden of proof .below was preponderance of the evidence, Claimant’s introduction of relevant and probative evidence on the issue in dispute provided an evidentiary basis from which the JCC could conclude that more likely than not, the aforementioned bills were incurred for the services reflected in the medical records. A JCC’s factual findings must be upheld if any view of the evidence and its permissible inferences supports them. See Ullman v. City of Tampa Parks Dep’t, 625 So.2d 868, 873 (Fla. 1st DCA 1993). Accordingly, here the evidence is sufficient to support the award of the two bills discussed above.

Notwithstanding the foregoing, the remainder of the bills and expense-items pled and placed into evidence by Claimant do not bear any immediately recognizable correlation to any particular (or specific) medical service or modality of treatment, and Claimant failed to connect these bills/expenses in a manner which would allow the JCC (or this court) to engage in meaningful analysis. We, therefore, must reverse the JCC’s award of these medical expenses. We are now required to determine the appropriate disposition regarding the remaining indefinite medical bills/expenses which were awarded by the JCC.

This court, on a number of occasions, has reversed and remanded for additional proceedings rather than issuing an outright reversal of awards of medical bills where the medical bills were not introduced into evidence. See, e.g., Litton Laser Sys. v. Chapman, 596 So.2d 1212 (Fla. 1st DCA 1992); Town & Country Farms v. Peck, 611 So.2d 63 (Fla. 1st DCA 1992); Teitelbaum Concrete v. Sandelier, 506 So.2d 1122, 1124 (Fla. 1st DCA 1987); Am. Grinding & Equip. v. Rodman, 411 So.2d 917, 918 (Fla. 1st DCA 1982). These cases are silent, however, concerning the circumstances which justify remanding the case to the JCC to allow a party a second opportunity to prove its case. A blanket rule providing a claimant with a second chance to properly connect the medical bills with the compensable injuries is inconsistent with general law as well as sound public policy.

In other areas of the law, appellate courts do not generally provide parties with an opportunity to retry their case upon a failure of proof. See Katz v. Van Der Noord, 546 So.2d 1047, 1048 (Fla.1989) (“Having failed to introduce competent, substantial evidence in regard to this issue [relating to damages for out-of-pocket expenses], the buyer is not entitled to a second bite at the apple.”) (citations omitted); see also Morgan Stanley & Co. v. Coleman (Parent) Holdings Inc., 955 So.2d 1124, 1131 (Fla. 4th DCA 2007) (reversing $1.58 billion verdict where plaintiff failed to utilize correct methods in proving measure of damages); Evans v. Delro Indus., Inc., 509 So.2d 1262, 1264 (Fla. 1st DCA 1987) (“When a cause is reversed for lack of evidence, a new trial cannot be awarded on the theory that some additional evidence might have been available at the former trial and will be presented on retrial, or that some such evidence may be found and will be presented on retrial, and that in either event there may be a different result upon retrial.”) (citations omitted); Ryan v. Wren, 413 So.2d 1223, 1224 (Fla. 2d DCA 1982) (affirming in part, but reversing award of punitive damages where record did not support award). We see no reason to treat workers’ compensation cases differently. This court has consistently stated the law’s preference for finality and its proscription against piecemeal litigation. See, e.g., Boynton Landscape v. Dickinson, 752 So.2d 1236, 1238 (Fla. 1st DCA 2000) (stating in workers’ compensation proceedings, piecemeal litigation of mature claims is no more permissible than in civil litigation). The primary function of this court is to correct errors committed by the lower tribunal, Florida Department of Corrections v. Bradley, 510 So.2d 1122, 1124 (Fla. 1st DCA 1987), not to serve as a conduit for unnecessarily protracted, piecemeal litigation.

Today we write to clarify that, in future cases, where the party with the burden of proof fails to establish an evi-dentiary basis for the damages awarded at trial, the general rule applies and (absent an exceptional legal or factual basis warranting a contrary result) simple reversal is warranted. See Katz, 546 So.2d at 1048; see also Evans, 509 So.2d at 1264 (explaining reversal and remand for new trial should be granted only where exceptional circumstances warrant such disposition). We see no legitimate reason to give a party an “extra bite of the apple” or an “extra inning” after the game has concluded and it has failed to score a sufficient number of runs.

Nevertheless, we reluctantly remand to the JCC for further proceedings in this instance. In light of the lack of clarity in our previous decisions as well as our clarification that in those cases where medical expenses are specifically controverted, the mere introduction of medical bills may not be sufficient to prove entitlement, fairness dictates this case be remanded for further proceedings as to the medical expenses.

Based on the foregoing, we AFFIRM the JCC’s finding of a compensable accident and injury, AFFIRM the award of TTD from October 24, 2008, through October 27, 2008, AFFIRM the aforementioned medical bills from Doctors Hospital and Jackson Memorial Hospital, and REVERSE and REMAND the remainder of the indemnity award for a determination of Claimant’s entitlement to TPD for the periods in question, and the remainder of the medical bills for additional proceedings consistent with this opinion.

WOLF and THOMAS, JJ., concur. MARSTILLER, J., concurs in part and dissents in part with opinion.

MARSTILLER, J.,

concurring in part and dissenting in part.

I concur in affirming the JCC’s finding of a compensable accident and injury, the award of TTD, and the order to pay Claimant’s medical bills from Doctors Hospital and Jackson Memorial Hospital. I further concur in the decision to remand for a determination of Claimant’s entitlement to TPD. But I respectfully dissent from the decision to remand for Claimant to put on evidence concerning medical expenses and bills he failed to substantiate at the hearing.

There is, as the majority opinion notes, a lack of clear justification in our prior decisions to remand for introduction of medical bills where none were put into evidence. But I submit that in those cases, unlike the one before us now, there likely was no challenge by the E/C to the bills once compensability of the claimant’s injury was determined. “Only rarely is the amount or reasonableness of medical bills an issue before the [JCC]. These matters generally will be worked out by the parties or their counsel.” American Grinding & Equip., v. Rodman, 411 So.2d 917, 919 (Fla. 1st DCA 1982) (Smith, C.J., concurring and dissenting). Here, the E/C did not agree to deal with the medical expenses and bills administratively. Claimant knew well before the hearing he would be required to prove entitlement to payment of each expense reflected in the medical bills incurred for treating his compen-sable injury. He failed to do so and should not be given another chance to make his case, absent exceptional circumstances. See Evans, supra.