author: LABARGA, J.

text:
    Jonathan GREENFIELD, M.D., et al., Petitioners, v. Dorothea DANIELS, etc., Respondent. Tenet St. Mary’s Inc., etc., Petitioner, v. Dorothea Daniels, etc., Respondent.
    Nos. SC09-1675, SC09-1676.
    Supreme Court of Florida.
    Nov. 24, 2010.
    Lawrence E. Brownstein, West Palm Beach, FL; Norman M. Waas and Robert S. Covitz of Falk, Waas, Hernandez, Corti-na, Solomon, and Bonner, P.A., Coral Gables, FL, for Petitioners.
    Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain, and Williams, LLP, and Clark, Fountain, La Vista, Prather, Keen and Littky-Rubin, West Palm Beach, FL, for Respondent.
   LABARGA, J.

Petitioners Jonathan Greenfield, M.D., Jonathan Greenfield, M.D., P.A. (hereinafter “Dr. Greenfield”), and Tenet St. Mary’s, Inc., d/b/a St. Mary’s Medical Center (hereinafter “St. Mary’s”), seek review of the decision of the Fourth District Court of Appeal in Daniels v. Greenfield, 15 So.3d 908 (Fla. 4th DCA 2009), on the ground that it expressly and directly conflicts with the decision of the Fifth District Court of Appeal in Achumba v. Neustein, 793 So.2d 1013 (Fla. 5th DCA 2001), on a question of law. Greenfield and St. Mary’s filed them notices separately, but the two cases have been consolidated in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As explained below, we approve the decision in Daniels v. Greenfield and, accordingly, disapprove the decision in Achmnba to the extent it is inconsistent with this opinion.

FACTS AND PROCEDURAL HISTORY

The conflict issue in this case centers on whether, in a wrongful death action, a survivor’s claim may be brought on behalf of a child who is alleged to be the decedent’s biological child but whose mother was married to another man at the time of the child’s conception and birth. If so, a further question arises as to whether the facts necessary to establish that the child qualifies as a “survivor” under section 768.18(1), Florida Statutes (2005), may be determined in a wrongful death action brought under chapter 768, Florida Statutes (2005), rather than in a paternity action brought under chapter 742, Florida Statutes (2005). The Fourth District in Daniels answered both questions in the affirmative and, as explained below, we agree.

This case arose from a wrongful death action filed by the estate of Shea Daniels (“the estate”) in the Circuit Court in and for Palm Beach County in September 2007. Daniels committed suicide on September 18, 2005. The complaint filed by Daniels’ mother as personal representative of his estate alleged that he was a psychiatric patient of Dr. Greenfield and was treated at St. Mary’s Medical Center in September 2005. The complaint further alleged, in pertinent part, that Daniels was negligently discharged by Dr. Greenfield and by the hospital without a proper discharge assessment, even though his last assessment by a physician indicated he was possibly suicidal. The complaint sought relief for both the estate and for J.D., a minor child alleged to be the surviving biological son of the decedent and for whom noneconomic damages for loss of consortium were sought.

Dr. Greenfield filed a motion and amended motion for partial summary judgment alleging that a survivor claim could not properly be brought on behalf of J.D. The grounds asserted for summary judgment were that J.D.’s mother was married to someone other than the decedent when J.D. was conceived and born, the mother’s husband’s paternal rights had not been divested, and the husband was not a party to the estate’s suit.

At the hearing on the motion for partial summary judgment, the circuit court ruled that

this is civil court, not the family court. The presumption [that the husband is the father] is rebuttable in family court not in civil court. As a matter of law, Mr. Washington [the mother’s husband] is the father of the child until the family court says otherwise.

The court granted the motion for partial summary judgment relating to the surviv- or claims for J.D., citing in the written order the reasons set forth on the record at the hearing. The estate moved the court to rehear the motion, stay the case, and allow the estate to seek a paternity ruling in family court, but the motion was denied. The court entered a final judgment in favor of Dr. Greenfield and St. Mary’s Medical Center as to all of the claims pertaining to J.D., again making reference to the grounds given at the hearing. The estate appealed to the Fourth District Court of Appeal.

The facts set forth in the Fourth District’s decision are stated as follows:

[J.D.] was born to Rozine Cerine and the decedent, Shea Daniels. Rozine had been married to Willie Washington in 1999, but they separated in 2000 when Washington moved away and joined the military. She met Shea in May 2000, and [J.D.] was born in September 2001. Shea’s name was listed on the birth certificate as the father.
Shea and Rozine had a difficult relationship, but he supported Rozine and [J.D.] by paying support of $50-70 per week. He also bought clothes for [J.D.]. His mother, Dorothy, visited with [J.D.] on occasion.
Rozine filed a petition to determine paternity and for child support against Shea in October 2004. Shea answered, demanding a DNA test, which was ordered but never conducted because Shea failed to appear. He was defaulted in the paternity proceeding, but a judgment establishing paternity was never entered. In November 2004, Rozine obtained a divorce from Willie Washington. The record does not contain a copy of the divorce decree.
Shea committed suicide in 2005, and his mother brought a wrongful death action on behalf of [J.D.] against a psychiatrist and hospital. Both answered and claimed that [J.D.] was not a surviv- or, because the presumption of legitimacy required that Willie Washington be deemed Shea’s legal father. Thus, [J.D.] could not be a survivor of Shea.
During the proceedings, the plaintiff conducted a paternity test which showed that Shea was the biological father of [J.D.]. Although the court questioned whether such a test should have been authorized, it had granted a continuance for the plaintiff to obtain the test. The test merely confirmed what the birth certificate already recorded. Shea was [J.D.’s] father.
Despite the evidence supporting the fact that Shea was not only the biological father but also the only father that [J.D.] knew, the court held that because Rozine was married to Willie Washington when [J.D.] was born, the presumption of legitimacy required it to declare as a matter of law that Washington was [J.D.’s] legal father in the wrongful death action. The court granted the motion, excluding [J.D.] as a survivor of his biological father. It also refused a request to abate the wrongful death action to permit a paternity action to be instituted to declare Shea’s paternity of [J.D.]. The personal representative appeals.

Daniels, 15 So.3d at 910. The Fourth District reversed the trial court, explaining:

We begin our own analysis with the statutory text. A survivor “includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” § 768.18(1), Fla. Stat. The “child born” can refer only to a biological child. “Out of wedlock” means that the father and mother of the child were not married. Thus, the clear meaning of the phrase is that a biological child born to a father not married to the child’s mother may be a “survivor” under the wrongful death act if the biological father recognized a responsibility of the child’s support. The statute does not require a legal determination of paternity. It merely requires recognition by the biological father of a responsibility of support. There is no presumption of legitimacy within the statute which would preclude [J.D.] from his ability to claim loss based upon his survivorship status. Thus, the statute appears to benefit the child by permitting recovery from the biological father without undermining the relationship that the child might have with a “legal father.” Under the clear language of the statute, the motion for summary judgment should not have been granted, because [J.D.] is a “survivor” of Shea based upon the evidence of Shea’s support of [J.D.] and the DNA test, as well as the birth certifícate listing Shea as the father.

Id. at 912.

The Fourth District in Daniels expressly recognized that Achumba held that a child born during a marriage cannot maintain a claim as a survivor of a third-party decedent — even if the decedent is the child’s biological father — where the status of the mother’s husband as “legal father” has not been changed. Daniels, 15 So.3d at 911 (citing Achumba, 793 So.2d at 1015). The Fifth District in Achumba also held that the paternity issue could not be resolved in the wrongful death action. Achumba, 793 So.2d at 1016. The Fourth District in Daniels disagreed with Achum-ba and adopted the reasoning and holding of the Third District in Coral Gables Hospital, Inc. v. Veliz, 847 So.2d 1027 (Fla. 3d DCA 2003), which held the opposite.

While recognizing the strong presumption that a child born during a marriage is the legitimate child of the husband, the Fourth District in Daniels held that “[i]f the presumption ... has any place in wrongful death survivorship questions, it may be overcome by clear and strong evidence.” Daniels, 15 So.3d at 914 (emphasis omitted). The Fourth District concluded that it is “certainly not in the child’s best interest to blindly apply this presumption” to the issue of survivorship in wrongful death proceedings to prevent the personal representative from asserting claims on behalf of J.D. for the loss of his father. Thus, the court reversed and remanded the case to the trial court for a determination to be made in the wrongful death action of whether J.D. is a “surviv- or” of Daniels under the provisions of section 768.18(1). Id.

ANALYSIS

Standard of Review

The questions presented in this ease are pure questions of statutory law. Thus, this Court’s review is de novo. Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006). In this analysis, legislative intent is the polestar by which the Court is guided, and “[t]o discern legislative intent, a court must look first and foremost at the actual language used in the statute.” Larimore v. State, 2 So.3d 101, 106 (Fla.2008). Accordingly, we look first to the actual text of the statutory provisions at issue. “[W]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)); see also Fla. Dep’t of Envtl. Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1265 (Fla.2008). “If, however, the language of the [statute] is ambiguous and capable of different meanings, this Court will apply established principles of statutory construction to resolve the ambiguity.” Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1122 (Fla.2008) (citing Gulf stream Park Racing Ass’n, Inc. v. Tampa Bay Downs, Inc., 948 So.2d 599, 606 (Fla.2006)). With these principles in mind, we turn to the statutes at issue.

Discussion

The statutes at issue are found in the “Florida Wrongful Death Act,” which is codified in sections 768.16-768.26, Florida Statutes (2005). Section 768.21(1), Florida Statutes, provides that in a wrongful death action, “[e]ach survivor may recover the value of lost support and services from the date of the decedent’s injury to her or his death, with interest, and the future loss of support and services.” § 768.21(1), Fla. Stat. (2005). Minor children “may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of the injury.” § 768.21(3), Fla. Stat. Section 768.18(1) defines “survivor” to include the decedent’s children and, “when partly or wholly dependent on the decedent for support or services, any blood relatives.” § 768.18(1), Fla. Stat. That section further states that the definition of “survivor”

includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.

§ 768.18(1), Fla. Stat. The estate contends that the statute refers to the biological father, an interpretation of the statute that was also adopted by the Fourth District. Conversely, Dr. Greenfield and St. Mary’s Medical Center contend that the reference to “father” in the statute means the legal father, defined as the husband of the woman who gives birth, if the woman is in fact married at the time. They contend that the decedent must be declared to be the “legal father” in a separate proceeding before a survivor’s claim may be brought in a wrongful death action for a child born out of wedlock of the father. The district court concluded that the statute requires only proof that the decedent is the biological father of the child, the father was not married to the mother at the time of the child’s birth (“out of wedlock of the father”), and the decedent has recognized responsibility for support.

The Legislature did not define the word “father” in chapter 768. “Where, as here, the legislature has not defined the words used in a [statute], the language should be given its plain and ordinary meaning.” School Bd. of Palm Beach County v. Survivors Charter Schs., Inc., 3 So.3d 1220, 1233 (Fla.2009) (alteration in original) (quoting Fla. BiHhr-Related Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997)). It is “ ‘appropriate to refer to dictionary definitions when construing statutes’ in order to ascertain the plain and ordinary meaning of the words used there.” Survivors, 3 So.3d at 1233 (quoting Barco, 975 So.2d at 1122). The first definition for “father” that appears in Merriam Webster’s Collegiate Dictionary is “a man who has begotten a child.” Merriam Webster’s Collegiate Dictionary 424 (10th ed. 1999). Thus, one recognized meaning of the word “father” is the biological father — a man who has begotten a child. However, as Dr. Greenfield and St. Mary’s contend, the word “father” can also refer to the man who is married to the woman when the child is conceived and born. Because section 768.18(1) does not define “father” for purposes of the wrongful death act, and the word appears to be capable of several different meanings, a level of ambiguity exists in the statute that justifies our further investigation into the purpose and intent of the enactment. See Barco, 975 So.2d at 1123.

Because we must determine if the phrase “out of wedlock of the father” contained in section 768.18(1) was intended to refer to the biological father of a child born to a man not married to the mother, even though the mother was married to another man at the time of conception and birth, it is necessary to consider the expressed legislative intent in enactment of the wrongful death act. The Legislature set forth the intent underlying the Florida Wrongful Death Act in section 768.17, Florida Statutes. That provision states:

Legislative Intent. — It is the public policy of this state to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. Sections 768.16-768.26 are remedial and shall be liberally construed.

§ 768.17, Fla. Stat. (2005). Therefore, the intent of the act is to shift the losses of survivors to the wrongdoer. Section 768.17 further mandates that the wrongful death act shall be liberally construed in aid of accomplishing that intent. Section 768.18(1) requires that for a child to be a survivor of a man who is not married to the mother, the man must have acknowledged the responsibility of support. If the decedent has recognized responsibility for support of the child, that loss falls directly on the child — and is the type of loss that is intended to be shifted to the wrongdoer.

We also take note that prior to the enactment of the Florida Wrongful Death Act in 1972, the Florida Law Revision Commission undertook a study and in 1969 issued its report titled Recommendation and RepoH on Proposed Revision ofFlori-da Wrongful Death and Survival Statutes . In the final recommendation section of the report, the commission recommended that the Legislature replace the then-existing wrongful death law with a comprehensive wrongful death act that is remedial in nature. The report also recommended that the Act be liberally interpreted to further justice, and should allow recovery by survivors including “a spouse and all blood relatives dependent in whole or in part upon the decedent.” Id. at 42. Proposed section 768.18 of the Florida Wrongful Death Act was, in fact, enacted substantially as recommended by the commission. See ch. 72-35, § 1, at 174, Laws of Fla. We note that section 768.18(1) of the act provides that “blood relatives” of the decedent may recover damages if they are partly or wholly dependent on the decedent for support; and it is immediately after this reference to blood relatives that section 768.18(1) refers to children born out of wedlock of a father who has recognized a responsibility of support. Thus, based on the text of the section, the blood tie between the survivor and the decedent is a significant factor in determining who falls within the definition of “survivors” for purposes of a wrongful death action.

In light of the stated legislative intent underlying the Florida Wrongful Death Act — that losses are to be shifted from the survivors to the wrongdoer and that the act is to be liberally construed to effect that intent — and in light of the text of section 768.18(1), we conclude that the biological child of a man not married to the mother may claim survivor damages in a wrongful death action so long as it is established that the decedent is the biological parent and that he acknowledged responsibility for support. The Fourth District correctly noted that “[t]he statute does not require a legal determination of paternity. It merely requires recognition by the biological father of a responsibility of support.” Daniels, 15 So.3d at 912. We agree, and also conclude that a formal declaration of paternity under chapter 742 is not required by section 768.18(1) in order for the child to be determined to be a survivor under the wrongful death act.

A second question presented in this case is whether the factual determination of whether J.D. is a survivor under section 768.18(1) may be made in the wrongful death action. We agree with the Fourth District that whether a claimant is a survivor under the provisions of section 768.18(1) is a factual determination to be made in the wrongful death action. First, section 768.18(1) expressly authorizes survivor claims in a wrongful death action on behalf of a child born out of wedlock of the father. In so doing, the statute does not require that the decedent be formally declared to be the father in a separate action under chapter 742, Florida Statutes, which sets forth procedures for formal determinations of paternity. Section 768.18(1) only requires that the decedent be the biological father and that he has recognized a responsibility for the child’s support. Second, contrary to the contentions of Dr. Greenfield and St. Mary’s, chapter 742 does not preempt or prohibit the determination of parentage in a wrongful death action solely for the purposes of a survivor’s claim in a wrongful death action.

The question of whether an individual is a man’s offspring has been litigated in contexts other than proceedings under chapter 742. We held in Kendrick v. Everheart, 390 So.2d 53 (Fla.1980), that a declaratory judgment action under chapter 86, Florida Statutes, may be brought for determining paternity. We explained in Kendrick that chapter 742 “was enacted in abrogation of the common law in order to convert the father’s moral obligation to provide child support to a legal obligation and in order to relieve the public of the need to provide support for the child.” Id. at 56. We further explained that “[t]he determination of paternity is made only incidentally to enable the achievement of the statute’s purposes.” Id. We held in Kendrick that a putative father could litigate his paternity separately in a declaratory judgment action “where such adjudication is necessary to the determination of existing rights or duties between parties to an actual controversy or dispute.” Id. at 58. We stated:

This Court has already observed the fact that judicial determinations of paternity occur in contexts other than in a paternity proceeding brought under chapter 742. See the discussion in Gammon v. Cobb, 335 So.2d at 265-67. A paternity determination has been permitted in these other contexts where it was a necessary incident to the adjudication of the ultimate relief sought in the particular proceeding involved.

Id. at 59 (emphasis added).

In Gammon v. Cobb, 335 So.2d 261 (Fla.1976), we held unconstitutional that part of section 742.011, Florida Statutes (1975), that allowed only unmarried women the right to bring an action for support based on paternity of a biological father who is not the husband. Id. at 268. In so holding, this Court had occasion to discuss proceedings involving paternity other than proceedings under chapter 742. We stated that

the State of Florida has engaged in numerous classifications without the confines of Chapter 712, Florida Statutes, permitting an illegitimate child to derive support from its natural father, irrespective of the marital status of its mother at the time of its conception, either directly during the father’s lifetime or indirectly through recovery of compensation from the father’s employer or from a tortfea-sor causing the death of the father.

Gammon, 335 So.2d at 267 (emphasis added). Thus, we have already acknowledged the propriety of establishing a child’s parentage outside of proceedings under chapter 742 “irrespective of the marital status of the mother” for purposes of recovery of support under the wrongful death statute. Id.

In the instant case, the decedent’s estate seeks adjudication of the issue of whether Daniels was J.D.’s father solely for purposes of wrongful death claims in the wrongful death action, where the adjudication is necessary to determine the existing rights of the parties in that context, as anticipated in Kendrick and Gammon. Based on the foregoing, we conclude that the determination of whether a child qualifies as a “survivor” under section 768.18(1) may be made in a wrongful death action, and the statute does not require a separate action brought under chapter 742 to formally establish paternity.

Finally, Dr. Greenfield and St. Mary’s contend that J.D.’s cause of action for damages arising from wrongful death had not accrued at the time of Daniels’ death because there was no established legal relationship between J.D. and Daniels at that time. However, the biological tie, if proven, would have been present between Daniels as biological father and J.D. as his child on the day J.D. was born — whether or not a formal adjudication of paternity had been made. Similarly, Daniels’ recognition of responsibility for J.D.’s support— one of the statutory requirements for bringing a survivor claim for a child born out of wedlock of the father — would also have occurred before Daniels’ death. Accordingly, we hold that a formal adjudication of a legal relationship between J.D., as survivor, and Daniels, as the biological father, made before his death is not a prerequisite for a cause of action under chapter 768 for a child born out of wedlock of the father. If, on remand, it is proven that J.D. is Daniels’ biological child for whom Daniels recognized a responsibility for support, J.D.’s survivor’s claim would have vested at Daniels’ death based on those facts, without the need for a formal adjudication of a legal relationship being made prior to his death.

CONCLUSION

Based on the foregoing, we approve the decision in Daniels v. Greenfield and, accordingly, disapprove the decision in Ac-humba to the extent it is inconsistent with this opinion. Accordingly, this cause is remanded to the trial court for further proceedings consistent with this opinion. We do not reach the issue of whether the DNA testing that was done in this case is admissible to prove that Shea Daniels is the biological father of J.D., a matter that has not been fully litigated in the circuit court. Therefore, on remand, that issue is not foreclosed.

It is so ordered.

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

POLSTON, J., concurs in result.

      . Section 768.18(1), Florida Statutes, provides as follows:
      (1) "Survivors'' means the decedent's spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives and adoptive brothers and sisters. It includes the child born out of wedlock of a mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.
      § 768.18(1), Fla. Stat. (2005).

      . St. Mary’s joined in the motion and amended motion for partial summary judgment.

      . In 2003, the Third District in Veliz certified conflict with Achumba, see Veliz, 847 So.2d at 1028, but review was voluntarily dismissed. See Coral Gables Hosp., Inc. v. Veliz, 857 So.2d 195 (Fla.2003).

      . While the district court noted that there is "ample evidence” to overcome the presump- ■ tion that J.D. is the biological child of his mother’s husband rather than Daniels, the court recognized that the issue had not been fully litigated in the trial court and remanded for a final determination to resolve the issue of whether J.D. qualifies as a survivor of Shea Daniels under the requirements of section 768.18(1). Daniels, 15 So.3d at 914.

      . The report indicates that the Florida Law Revision Commission was created by the 1967 Legislature, §§ 13.90-13.996, Florida Statutes (1967), to study the law for needed reforms. See Florida Law Revision Commission, Recommendation and Repon on Proposed Revision of Florida Wrongful Death and Survival Statute 3 (Dec. 1969) (available at Fla. State Archives, ser. 19, carton 197, Tallahassee, Fla.).

      . As the Fourth District also concluded in Daniels, because a determination that J.D. is a survivor for purposes of the wrongful death act does not affect his legitimacy, it does not undermine any existing relationship he has with Willie Washington, his mother’s former husband. Daniels, 15 So.3d at 912. The Fourth District distinguished between a determination of paternity and a determination of whether J.D. is a "survivor” under the statute, and stated:
      The statute [§ 768.18(1) ] does not require a legal determination of paternity. It merely requires recognition by the biological father of a responsibility of support. There is no presumption of legitimacy within the statute which would preclude [J.D.] from his ability to claim loss based upon his surviv-orship status. Thus, the statute appears to benefit the child by permitting recovery from the biological father without undermining the relationship that the child might have with a "legal father.”

        Id. For this same reason, the husband of J.D.’s mother is not an indispensable party to this wrongful death action.

      . Dr. Greenfield and St. Mary's also contend that J.D. cannot qualify for survivor benefits relating to children born out of wedlock because he was born in wedlock — while his mother was married to a man other than Shea Daniels. However, the statute specifically refers to a child "born out of wedlock of the father." § 768.18(1), Fla. Stat. (emphasis added). This provision does not refer to the marital status of the mother but, instead, refers to the marital status of a biological father who, at the time of the child’s birth, was not married to the child’s mother.

      . Section 742.011, Florida Statutes, was amended in 1986 to allow either a mother or a putative father to bring an action to determine paternity. See ch. 86-220, § 150, Laws of Fla.

      . We also note that the Second District held that a child’s paternity could be determined in a declaratory judgment action brought by a bank in its capacity as trustee for a trust established to benefit the "children” or "descendants” of the decedent. See Doe v. Suntrust Bank, 32 So.3d 133, 137 (Fla. 2d DCA 2010), review denied, No. SC10-860, 2010 WL 3585064 (Fla. Sept. 14, 2010); see also B.B. v. P.J.M., 933 So.2d 57, 59 n. 3 (Fla. 1st DCA 2006) ("Some examples of court proceedings that could establish the identity of a child’s father would include: a father or a child's right to recover civil damages under the wrongful death statute, section 768.21(4), Florida Statutes_”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Inquiry Concerning a Judge, No. 09-518 re Yvonne COLODNY.
    No. SC10-1486.
    Supreme Court of Florida.
    Dec. 2, 2010.
    Michael L. Schneider, General Counsel, Judicial Qualifications Commission, Tallahassee, FL, for Florida Judicial Qualifications Commission, Petitioner.
    Edward K. Cheffy, Naples, FL, for Judge Yvonne Colodny, Respondent.
   PER CURIAM.

We review the recommendation of the Judicial Qualifications Commission (JQC) that Judge Yvonne Colodny receive the sanction of a public reprimand and a fine of $5000 for misconduct during her 2008 campaign for circuit court judge in the Eleventh Circuit. We have jurisdiction. See art. V, § 12, Fla. Const. For the reasons that follow, we approve the recommended discipline.

I. BACKGROUND

The JQC filed charges against Judge Colodny, alleging that during her 2008 judicial campaign, Judge Colodny listed contributions to her campaign fund totaling $125,000 as loans made by her, when those funds were in fact loans from her father made in violation of the contribution limits set by section 106.08, Florida Statutes (2007). The JQC alleged that Judge Co-lodny’s conduct violated Canon 1 (A Judge Shall Uphold the Integrity and Independence of the Judiciary), Canon 2A (“A judge shall respect and comply with the law and shall act ... in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”), and Canon 6B (Public Financial Reporting) of the Florida Code of Judicial Conduct.

In July 2010, the JQC and Judge Colod-ny entered a stipulation and filed it with this Court. The stipulation provided the following detail regarding Judge Colodny’s misconduct. On May 1, 2008, Judge Co-lodny executed a promissory note for $150,000 in favor of her parents Michael and Lou Anne Colodny, which was to be secured by a mortgage on Judge Colodny’s condominium in Miami-Dade County. In four installments during the period of August through October 2008, Michael Colod-ny disbursed $125,000 to Judge Colodny. Following each disbursement, Judge Co-lodny deposited funds in the same amount as the disbursement into her campaign account. Each of these four deposits was listed on Judge Colodny’s quarterly campaign treasurer’s reports as a loan from the candidate.

Judge Colodny was a candidate in the August 26, 2008, primary election and was elected to office on November 4, 2008. On November 11, 2008, Judge Colodny filed a report with the Division of Elections pursuant to section 106.075(1), Florida Statutes (2007), disclosing that she received loans in the aggregate amount of $125,000 from her father. Section 106.075(1) provides that “within 10 days after being elected to office” “[a] person who is elected to office must report all loans, exceeding $500 in value, made to him or her and used for campaign purposes, and made in the 12 months preceding his or her election to office.”

On July 2, 2009, Judge Colodny filed her annual Form 6 “Full and Public Disclosure of Financial Interests” statement, which required disclosure of all financial interests for 2008. Judge Colodny failed to disclose the loans from her father on the Form 6. On August 31, 2009, Judge Colodny and her parents modified their agreement— reducing the amount of the promissory note to $125,000 and relinquishing the lien on the condominium to allow for the sale of the condominium. After Judge Colodny received notice in January 2010 that the JQC had begun an investigation, Judge Colodny filed an amended Form 6, which listed the liability to her parents.

In the stipulation, Judge Colodny accepted responsibility for her wrongdoing. She admitted that the loan from her father was made “specifically for her use in campaigning for judicial office and was made for the purpose of influencing the results of the election.” Judge Colodny explained that she had intended to adhere to the campaign finance laws but erroneously interpreted section 106.075 as implicitly allowing judicial candidates to borrow campaign funds from individuals in excess of $500 per lender. Judge Colodny conceded that “she should have exercised greater care in the disclosure of her liabilities on the Form 6.”

The stipulation incorporated the JQC’s Findings and Recommendation of Discipline. The JQC concluded that Judge Co-lodny violated Canons 1, 2A, and 6B. However, because it found that Judge Co-lodny did not make any intentional misrepresentations, the JQC distinguished Judge Colodny’s case from In re Rodriguez, 829 So.2d 857 (Fla.2002), and In re Pando, 903 So.2d 902 (Fla.2005). The JQC recommended a public reprimand and a fine of $5000 as appropriate discipline.

II. ANALYSIS

Article V, section 12 of the Florida Constitution provides that in the case of judicial misconduct, this Court “may accept, reject, or modify in whole or in part the findings, conclusions, and recommendations of the [JQC] and it may order that the ... judge be subjected to appropriate discipline.” Art. V, § 12(c)(1), Fla. Const. (2008). “Although this Court gives the findings and recommendations of the JQC great weight, the ultimate power and responsibility in making a determination to discipline a judge rests with this Court.” In re Renke, 933 So.2d 482, 493 (Fla.2006) (citing In re Angel, 867 So.2d 379, 382 (Fla.2004)). In this case, the JQC recommended that Judge Colodny be publicly reprimanded and fined $5000. We agree that Judge Colodny’s misconduct was less egregious or more mitigated than the misconduct at issue in Rodriguez and Pando and that a less severe sanction than was imposed in those cases is appropriate here. Because the JQC’s recommended discipline is consistent with this Court’s precedent, we approve the recommendation.

In Rodriguez, the JQC determined that Judge Rosa I. Rodriguez knowingly accepted a campaign contribution in the amount of $200,000, made for the purpose of influencing the results of the election. The loan was made by Attorney Gabriel Bach, Judge Rodriguez’s then boyfriend. Judge Rodriguez filed campaign reports with the Division of Elections, stating that she personally loaned the $200,000 to her campaign. Additionally, in reports submitted pursuant to section 106.075, Florida Statutes (1997), Judge Rodriguez represented that the loan was made by her brother Hugo Rodriguez and failed to disclose that $80,000 had been used to partially repay Bach. In a Form 6 public disclosure, Judge Rodriguez again failed to disclose the $120,000 remaining debt to Bach. Finally, after the campaign, Judge Rodriguez filed a letter with the Division of Elections, falsely stating that her previously submitted net worth statement failed to include a $120,000 balance on a loan from Hugo Rodriguez. Rodriguez, 829 So.2d at 858-59.

The JQC concluded that Judge Rodriguez’s conduct violated provisions of chapter 106, Florida Statutes, and Canons 1, 2, 5D, 6B, and 7 of the Code of Judicial Conduct. The JQC recommended that Judge Rodriguez be suspended without pay for four months, receive a public reprimand, be fined $40,000, and pay the court reporter fees incurred by the JQC. This Court accepted the recommended discipline, explaining that the $40,000 fíne was designed to partially reimburse the State for salary paid to Judge Rodriguez while she was previously suspended with pay during a criminal investigation. Id. at 861.

In Rodriguez, the JQC determined that “Judge Rodriguez’s actions were committed negligently, and not as a pervasive scheme to evade the elections laws.” Id. at 861 n. 2. In this case, the JQC determined there was “nothing in the record to indicate that Judge Colodny acted other than on the advice of counsel and based on her interpretation of the applicable statutes.” This finding was supported by affidavits submitted to the investigative panel by Judge Colodny’s father and her campaign treasurer. Both individuals averred that in an attempt to comply with the campaign finance law, they relied on page 23 of the 2007 Division of Elections’ Candidate and Campaign Treasurer Handbook, which stated that “[a]ll personal loans exceeding $500 in value, made to a candidate and used for campaign purposes ... must be reported on Forms DS-DE 73 and 73A, Campaign Loans Report, and filed with the filling officer within ten days after being elected to office.”

The facts of Rodriguez show that the misconduct involved there was significantly more serious than Judge Colodny’s misconduct. After her election, Judge Colodny promptly informed the Division of Elections of the loan from her father, and after receiving notice of the JQC’s investigation, she filed an amended Form 6. And while Judge Colodny initially failed to disclose the true source of the loans to her campaign fund, unlike Judge Rodriguez she did not misattribute the funds to an uninvolved third party. Judge Rodriguez’s false reports that concealed the involvement of attorney Bach in her campaign were more systematic and egregious than Judge Colodny’s omissions. Moreover, there is no indication in the record that Judge Colodny was ever suspended with pay. Accordingly, there is no need to reimburse the State for unearned salary. Based on the foregoing, there is a basis for imposing lesser discipline in this case.

We also agree that a significant fine like that imposed in Pando is not warranted in this case. In Pando, the JQC and Judge Ana Marie Pando stipulated that during the course of her 1998 and 2000 election campaigns, Judge Pando “knowingly or recklessly” accepted a loan from her mother in excess of the $500 statutory limit that was made for the purpose of influencing the results of an election; accepted numerous loans from her mother and her stepfather that were in excess of the $500 statutory limit; “knowingly or recklessly” violated statutory reporting provisions by misrepresenting the source of these loans in her campaign finance reports; and made misleading statements in her deposition by special counsel for the JQC regarding the source of a purported $25,000 loan. 903 So.2d at 903. The JQC determined that Judge Pando violated provisions of chapter 106, Florida Statutes, and Canons 1, 2, and 7 of the Code of Judicial Conduct. The JQC recommended a public reprimand and a $25,000 fíne, and this Court approved the recommended discipline. Id. at 903-04.

Judge Pando made misleading statements when questioned by the JQC about a loan. In contrast, Judge Colodny was “[rjesponsive” to the investigative panel, voluntarily provided further documentation to the panel, and filed a corrected Form 6 when “she recognized that her filings were inadequate.” This Court has previously approved recommended disciplinary sanctions where the JQC relied on the respondent’s cooperation as a mitigating factor. See, e.g., In re Luzzo, 756 So.2d 76, 77-78 (Fla.2000) (approving public reprimand where judge was candid, remorseful, and cooperative after improperly accepting baseball tickets from practicing attorneys); In re Brown, 748 So.2d 960, 961-62 (Fla.1999) (approving public reprimand for judge’s issuance of orders and warrants in cases from which he should have been recused where judge displayed remorse and cooperated with the JQC).

Finally, the JQC’s recommendation of a modest fíne and a public reprimand is consistent with a distinction this Court has drawn between judicial misconduct that suggested partiality by the judge and judicial misconduct that did not suggest partiality. In Angel, this Court concluded that Judge Angel’s numerous, improper partisan campaign activities warranted a public reprimand. This Court distinguished Judge Angel’s case from more “egregious cases, where a judge’s misconduct included implications that he or she would make partisan decisions on the bench.” 867 So.2d at 383. This Court noted that in cases where the judge’s impartiality was compromised, the “JQC has recommended a substantial fíne in addition to a public reprimand and even removal.” Id. (citing In re Kinsey, 842 So.2d 77, 88 (Fla.2003) (approving recommendation of a public reprimand, a $50,000 fine, and costs for campaign misconduct that included “implicit pledges that if elected to office, Judge Kinsey would help law enforcement” and victims of crime); In re McMillan, 797 So.2d 560, 572 (Fla.2001) (approving recommendation that Judge McMillan be removed from office due to a pattern of misconduct including promises that he would rule in a prosecution-friendly manner if elected)). There is nothing in the instant record to suggest that Judge Co-lodny’s impartiality was affected by the loan from her father. Thus, a substantial fine is unnecessary.

III. CONCLUSION

In summary, we accept the JQC’s recommendation of a public reprimand and a fine. We order that Judge Colodny pay a fine of $5000 and appear before this Court for the administration of a public reprimand at a time to be set by the Clerk of this Court. See In re Frank, 753 So.2d 1228, 1242 (Fla.2000).

It is so ordered.

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

QUINCE, J., concurs in result.


author: PER CURIAM. POLSTON, J.,

text:
    STATE of Florida, Petitioner, v. Kathy Jo CABLE, Respondent.
    No. SC09-1684.
    Supreme Court of Florida.
    Dec. 9, 2010.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Susan D. Dunlevy, Assistant Attorneys General, Tampa, FL, for Petitioner.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the decision of the Second District Court of Appeal in Cable v. State, 18 So.3d 37 (Fla. 2d DCA 2009), regarding a violation of Florida’s knock-and-announce statute. In its decision the district court ruled upon the following question, which the court certified to be of great public importance:

IN VIEW OF THE ABROGATION OF THE EXCLUSIONARY RULE FOR FOURTH AMENDMENT KNOCK-AND-ANNOUNCE VIOLATIONS, SHOULD THE JUDICIAL REMEDY OF EXCLUSION OF EVIDENCE BE APPLIED FOR VIOLATIONS OF FLORIDA’S STATUTORY KNOCK-AND-ANNOUNCE PROVISIONS.

Id. at 39-40. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

This certified question asks whether the recent United States Supreme Court decision in Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006), requires the Court to recede from its 1964 opinion in Benefield v. State, 160 So.2d 706 (Fla.1964), in which this Court held that a violation of Florida’s knock-and-announce statute vitiated the ensuing arrest and required the suppression of the evidence obtained in connection with the arrest. We conclude that because the remedy of exclusion in Benefield was based on a violation of Florida’s knock-and-announce statute, and not the Fourth Amendment, Hudson does not mandate that we recede from Benefield. Accordingly, we approve the decision of the Second District.

FACTS

On May 15, 2007, at 6:37 a.m., Polk County Sheriffs Office Deputy Richard Lawrence was checking vehicle license tags in the parking lot of the Lake Wales Inn. Deputy Lawrence was in uniform and was in a marked Sheriffs Office vehicle. Deputy Lawrence recognized a vehicle that he had seen at a drug house the day prior and ran the license tag number. He found that it was registered to respondent Kathy Jo Cable. Upon running a check on Cable, Deputy Lawrence discovered that Cable had an outstanding Polk County arrest warrant for failure to appear on a charge of possession of methamphetamine. Deputy Lawrence contacted the motel manager and learned that Cable and her husband were staying at the motel.

After returning to his vehicle, Deputy Lawrence observed R.E., later identified as Cable’s sixteen-year-old son, exit the motel room. Deputy Lawrence initiated contact with R.E. and directed R.E. to go back to the motel room and “get his mother up” because Deputy Lawrence needed to speak with her. Deputy Lawrence did not inform R.E. about the outstanding warrant because he believed this information might prompt Cable to attempt a “back door” escape. After Deputy Lawrence waited approximately fifteen minutes, neither Cable nor R.E. came outside, so Deputy Lawrence knocked on the door of Cable’s motel room. Since there was no answer, Deputy Lawrence knocked again and announced “Sheriffs Office” and “come to the door.” Deputy Lawrence did not announce his purpose for being there — that he had a warrant for Cable’s arrest.

Deputy Lawrence received no answer after announcing his authority and requesting that the occupants come to the door. After waiting a few minutes with still no response, Deputy Lawrence opened the unlocked door and entered the motel room. Inside, he found Cable, who was unresponsive on the bed, her husband, R.E., and two other boys. Deputy Lawrence woke Cable, notified her that he had a warrant for her arrest, and placed her in custody. A search of Cable’s person incident to the arrest revealed methamphetamine and drug paraphernalia.

Cable was charged by information with trafficking in methamphetamine and possession of drug paraphernalia. She filed a motion to suppress the evidence against her on the ground that the warrant for her arrest was illegally executed in violation of section 901.19, Florida Statutes (2005)— Florida’s statute requiring police to announce their authority and purpose before entering a building to arrest an individual. Specifically, she argued that Deputy Lawrence knocked and announced his presence and authority, but failed to announce his purpose before entering the motel room in which she was staying — a fact conceded by the State in this case. The trial court denied the motion after an evidentiary hearing. The trial court concluded in pertinent part:

Defendant contends that the Deputy Sheriff failed to announce his purpose for being there when knocking on the door, and therefore, the entry and arrest were unlawful. The Court disagrees.
Pursuant to V.P.S. v. State, 816 So.2d 801 (Fla. 4th DCA 2002), arrest warrants carry with them the limited authority to enter a dwelling when there is reason to believe that the person is within. Florida also recognizes a “substantial compliance” standard for arrest statutes. Conti v. State, 540 So.2d 934 (Fla. 1st DCA 1989). In accordance with these standards, and in light of all of the attendant facts and circumstances, the Court holds that there was, at a minimum, substantial compliance on the part of the officer and lawful authority to enter the room to arrest the Defendant.
Furthermore, in Hudson v. Michigan [547 U.S. 586], 126 S.Ct. 2159 [165 L.Ed.2d 56] (2006), a case in which it was undisputed that the knock and announce statute was violated, the United States Supreme Court held that, “exclusion [of the evidence] may not be premised on the mere fact that a constitutional violation was a ‘but-for’ cause of obtaining evidence.”

Id. at 2164.

Subsequently, Cable entered into a negotiated nolo contendere plea to the trafficking charge in exchange for a mandatory minimum sentence of three years in prison, reserving the right to appeal the denial of her motion to suppress. The State nolle prossed the paraphernalia charge. Cable was then sentenced pursuant to the plea agreement, and she appealed to the Second District.

The Second District reversed, concluding that the trial court erred in denying Cable’s motion to suppress. Cable, 18 So.3d at 38-39. The district court reasoned that “by failing to announce his purpose before entering the motel room, the officer acted in violation of section 901.19(1).” Id. at 38. In reaching this conclusion, the Second District relied on Benefield but noted that the facts in Bene-field regarding statutory violations by police were extreme. The district court then explained that it had considered less extreme circumstances in Urquhart v. State, 211 So.2d 79 (Fla. 2d DCA 1968):

Relying on Benefield, we held that an officer failed to comply with the provisions of the statute when he “did not announce his purpose and he did not wait until he was refused admittance before pushing open the door.” Urquhart, 211 So.2d at 83. We also held that the officer’s failure to announce his purpose made “the subsequent arrest and incidental search invalid and any evidence seized as a result thereof ... inadmissible.” Id.

Cable, 18 So.3d at 38-39. The Second District found the facts in Cable to be indistinguishable from those in Urquhart. Id. at 39. The Second District also recognized that the “issue in the instant case, however, is not — as it was in Hudson— whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision.” Id. The Second District recognized, however, that the reasoning of Hudson “calls into question the appropriateness of applying the exclusionary rule for violations of Florida’s knock-and-announce statute.” Id. Thus, it certified the question of great public importance as to whether the remedy of exclusion of evidence is required as a result of a violation of the knock-and-announce statute.

More recently, the Third District Court of Appeal relied on Hudson to conclude that the exclusionary rule does not apply to statutory knock-and-announce violations. See State v. Brown, 36 So.3d 770, 775 (Fla. 3d DCA 2010). In Brown, the defendant argued that section 901.19(1), the knock-and-announce statute, supported the trial court’s suppression of inculpatory evidence against him. Id. at 771, 773. The Third District rejected the defendant’s knock-and-announce argument, but noted:

[W]e believe that reversal is required even if we are wrong on the knock and announce point. This is so because of the holding of Hudson that even established violations of the principle do not implicate the exclusionary rule so as to suppress pertinent evidence. We follow Hudson both because we are persuaded by its reasoning on the point and because we are required to do so by Article 1, section 12, of the Florida Constitution.

Id. at 775 (footnotes omitted). The Third District noted that Cable was contrary to its reasoning. Id.

ANALYSIS

To answer the certified question, we first discuss Florida’s knock-and-announce statute and the case law interpreting it. We then discuss the Supreme Court’s decision in Hudson and why it does not control. We next discuss whether we should recede from Benefield and conclude that we should not. Thus, we answer the certified question in the affirmative. Finally, we discuss the application of Benefield to the facts of this case.

Florida’s Knock-and-Announce Statute and the Exclusionary Rule

Section 901.19(1), Florida Statutes (2005), provides:

If a peace officer fails to gain admittance after she or he has announced her or his authority and purpose in order to make an arrest either by a warrant or when authorized to make an arrest for a felony without a warrant, the officer may use all necessary and reasonable force to enter any building or property where the person to be arrested is or is reasonably believed to be.[]

A separate statute, section 933.09, Fla. Stat. (2005), parallels this language for search warrants:

The officer may break open any outer door, inner door or window of a house, or any part of a house or anything therein, to execute the warrant, if after due notice of the officer’s authority and purpose he or she is refused admittance to said house or access to anything therein.

In Benefield, this Court held that noncompliance with the statutory knoek-and-announce requirement vitiated the ensuing arrest and required suppression of the evidence obtained as a result of the arrest— absent any of the recognized exigencies justifying noncompliance. 160 So.2d at 710. There, the Court noted that “the officers totally ignored every requirement of the law.” Id. at 709. “They barged into petitioner’s home without knocking or giving any notice whatever of their presence; they did not have a search warrant or warrant to arrest anyone; they ransacked petitioner’s home without the least semblance of any showing of authority.” Id. The Court explained:

It is true that the act is ambiguous and poorly drawn, but a reasonable interpretation of it runs like this: When an officer is authorized to make an arrest in any building, he should first approach the entrance to the building. He should then knock on the door and announce his name and authority, sheriff, deputy sheriff, policeman or other legal authority and what his purpose is in being there. If he is admitted and has a warrant, he may proceed to serve it. He is not authorized to be there to make an arrest unless he has a warrant or is authorized to arrest for a felony without a warrant. If he is refused admission and is armed with a warrant or has authority to arrest for a felony without a warrant, he may then break open a door or window to gain admission to the building and make the arrest. If the building happens to be one’s home, these requirements should be strictly observed.

Id. The Court then concluded:

As we interpret the common law authorities in relation to § 901.19(1), Florida Statutes, F.S.A., we conclude that even if probable cause exists for the arrest of a person, our statute is violated by an unannounced intrusion in the form of a breaking and entering any building, including a private home, except (1) where the person within already knows of the officer’s authority and purpose; (2) where the officers are justified in the belief that the persons within are in imminent peril of bodily harm; (3) if the officer’s peril would have been increased had he demanded entrance and stated the purpose, or (4) where those within made aware of the presence of someone outside are then engaged in activities which justify the officers in the belief that an escape or destruction of evidence is being attempted....
... Under the peculiar facts of this case, we are convinced that § 901.19(1), Florida Statutes, F.S.A., was violated and that its violation is not excused by any of the exceptions discussed herein and for this reason the fruits of the search being the product of an unlawful arrest and a search incident thereto, should have been excluded by the trial court upon proper motion.

Id. at 710-11. In reaching this conclusion, the Court noted that “[s]ection 901.19, Florida Statutes, ... appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home yet nevertheless provides that an arresting office ‘may break open doors, if the party refused upon demand to open them.’” Id. at 710 (citing 1 Hale’s Pleas of the Crown 583 (1763)). As the Court explained:

Entering one’s home without legal authority and neglect to give the occupants notice have been condemned by the law and the common custom of this country and England from time immemorial. It was condemned by the yearbooks of Edward IV, before the discovery of this country by Columbus....
This sentiment has moulded our concept of the home as one’s castle as well as the law to protect it. The law forbids the law enforcement officers of the state or the United States to enter before knocking at the door, giving his name and the purpose of his call. There is nothing more terrifying to the occupants than to be suddenly confronted in the privacy of their home by a police officer decorated with guns and the insignia of his office. This is why the law protects its entrance so rigidly.

Id. at 709.

Since Benefield, the district courts of appeal have applied the exclusionary rule to violations of the knock-and-announce statutes. See Guerrie v. State, 691 So.2d 1132, 1133 (Fla. 4th DCA 1997) (“Here, because the officers failed to announce their purpose as required by [section 901.19(1) ], the evidence must be suppressed.”); Kistner v. State, 379 So.2d 128, 128 (Fla. 1st DCA 1979) (reversing trial court’s denial of a motion to suppress where sheriff failed to comply with knock- and-announce statute — section 933.09 (citing Benefield)); Moreno v. State, 277 So.2d 81, 83 (Fla. 3d DCA 1973) (concluding that trial court erred in failing to suppress the evidence seized as a result of an arrest effectuated in violation of section 901.19(1) (citing Benefield)). However, all of these decisions predated Hudson, which changed the analysis regarding exclusion of evidence for violation of constitutional knock-and-announce requirements.

The United States Supreme Court’s Decision in Hudson v. Michigan

In Hudson v. Michigan, the United States Supreme Court considered whether a violation of the Fourth Amendment knock-and-announce rule requires the exclusion of all evidence found in the search. 547 U.S. at 588, 126 S.Ct. 2159. In Hudson, “[w]hen the police arrived to execute the warrant, they announced their presence, but waited only a short time — perhaps ‘three to five seconds,’ ... — before turning the knob of the unlocked front door and entering Hudson’s home.” Id. The defendant moved to suppress all of the inculpatory evidence against him, arguing that the police officers’ premature entry violated his Fourth Amendment rights. Id. After unsuccessfully attempting to obtain relief in the state courts, Hudson petitioned the Supreme Court for a writ of certiorari. Id. at 588-89, 126 S.Ct. 2159. The Supreme Court granted certiorari and denied relief, concluding that the exclusionary rule is not an appropriate remedy for a violation of the Fourth Amendment knock-and-announce requirement.

In reaching this conclusion in Hudson, the Supreme Court noted that the knock- and-announce requirement is a well-established principle with deep roots in our English common law heritage. Id. at 589, 126 S.Ct. 2159. The Supreme Court also explained that it concluded in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), that the knock- and-announce rule is also a command of the Fourth Amendment — in essence, the common law knock-and-announce rule is part of the reasonableness inquiry under the Fourth Amendment. Hudson, 547 U.S. at 589, 126 S.Ct. 2159; see also Wilson, 514 U.S. at 930, 115 S.Ct. 1914. The Supreme Court highlighted the distinction between the question of whether evidence should be excluded in a particular case and the question of whether law enforcement violated the Fourth Amendment knock- and-announce requirement:

“In Whiteley [v. Warden, Wyoming State Penitentiary, 401 U.S. 560, 91 S.Ct. 1031, 28 L.Ed.2d 306 (1971) ], the Court treated identification of a Fourth Amendment violation as synonymous with application of the exclusionary rule to evidence secured incident to that violation. Subsequent case law has rejected this reflexive application of the exclusionary rule.” (Citation omitted.) We had said as much in [United States v. [, Leon [, 468 U.S. 897, 906, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984) ], a decade earlier, when we explained that “[wjhether the exclusionary sanction is appropriately imposed in a particular case ... is ‘an issue separate from the question whether the Fourth Amendment rights of the party seeking to invoke the rule were violated by police conduct.’ ”
In other words, exclusion may not be premised on the mere fact that a constitutional violation was a “but-for” cause of obtaining evidence. Our cases show that but-for causality is only a necessary, not a sufficient, condition for suppression. In this case, of course, the constitutional violation of an illegal manner of entry was not a but-for cause of obtaining the evidence. Whether that preliminary misstep had occurred or not, the police would have executed the warrant they had obtained, and would have discovered the gun and drugs inside the house. But even if the illegal entry here could be characterized as a but-for cause of discovering what was inside, we have “never held that evidence is ‘fruit of the poisonous tree’ simply because ‘it would not have come to light but for the illegal actions of the police.’ ” Segura v. United States, 468 U.S. 796, 815, 104 S.Ct. 3380, 82 L.Ed.2d 599 (1984).

Hudson, 547 U.S. at 591-92, 126 S.Ct. 2159. The Supreme Court also explained the interests protected by the knock-and-announce requirement:

One of those interests is the protection of human life and limb, because an unannounced entry may provoke violence in supposed self-defense by the surprised resident. Another interest is the protection of property. Breaking a house (as the old cases typically put it) absent an announcement would penalize someone who did not know of the process, of which, if he had notice, it is to be presumed that he would obey it. The knock-and-anñounce rule gives individuals the opportunity to comply with the law and to avoid the destruction of property occasioned by a forcible entry. And thirdly, the knock-and-announce rule protects those elements of privacy and dignity that can be destroyed by a sudden entrance. It gives residents the opportunity to prepare themselves for the entry of the police. The brief interlude between announcement and entry with a warrant may be the opportunity that an individual has to pull on clothes or get out of bed. In other words, it assures the opportunity to collect oneself before answering the door.
What the knock-and-announce rule has never protected, however, is one’s interest in preventing the government from seeing or taking evidence described in a warrant. Since the interests that were violated in this case have nothing to do with the seizure of the evidence, the exclusionary rule is inapplicable.

Id. at 594, 126 S.Ct. 2159 (citations and internal quotation marks omitted). However, the United States Supreme Court did not address whether states were free to enact their own knock-and-announce statutes that mandate exclusion of evidence as a remedy for violation of the statute or enact other remedies for violations, such as monetary damages.

Why Hudson Does Not Control

We conclude that Hudson does not control the question of whether the exclusionary rule applies to statutory knock-and-announce violations in Florida because we deem the distinction between common law remedies and constitutional remedies stressed in Cable a meaningful one. As explained by the Second District in Cable:

The issue in the instant case, however, is not — as it was in Hudson — whether the evidence is subject to suppression under the Fourth Amendment. Instead, the issue is whether suppression of the evidence is a remedy that must be applied for the violation of the statutory knock-and-announce provision. The Florida case law recognizes the common law and constitutional background for the knock-and-announce statute. See Benefield, 160 So.2d at 710 (stating that section 901.19 “appears to represent a codification of the English common law which recognized the fundamental sanctity of one’s home”); State v. Loeffler, 410 So.2d 589, 593 (Fla. 2d DCA 1982) (stating that the purpose of the knock- and-announce statute “parallels that of the constitutional guarantees against search and seizure”). But the case law does not support the conclusion that the statute has no force independent of the requirements of the Fourth Amendment. Under the Florida case law, it is by no means clear that the exclusionary rule has been applied to violations of the knock-and-announce statute only because Fourth Amendment knock-and-announce violations were subject to the exclusionary rule. Indeed, Benefield applied the exclusionary rule for violations of the knock-and-announce statute long before the United States Supreme Court decided in Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995), that the common law knock-and-announce rule was also a “ ‘command of the Fourth Amendment.’” Id. at 931, 115 S.Ct. 1914 (quoting New Jersey v. T.L.O., 469 U.S. 325, 337, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)).

Cable, 18 So.3d at 39.

Under Hudson, it is clear that the exclusionary rule does not apply to Fourth Amendment knock-and-announce violations. However, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida’s knock-and-announce statute because, as explained in State v. Slaney, 653 So.2d 422, 425 (Fla. 3d DCA 1995):

[T]he states are privileged under their state law to adopt higher, but not lower, standards for police conduct than those required by the Fourth Amendment. Cooper v. California, 386 U.S. 58, 62, 87 S.Ct. 788, 17 L.Ed.2d 730 (1967) (state constitutional provision on search and seizure); Sibron v. New York, 392 U.S. 40, 61, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968) (state statute). In Florida, these higher standards may not, as a matter of state law, be imposed under the state constitutional guarantee against unreasonable searches and seizures, Art. I, § 12, Fla. Const. (1982 amendments); Bernie v. State, 524 So.2d 988 (Fla.1988), but may be imposed by other provisions of Florida law, including a state statute.

(Emphasis added.) As a matter of state law, a state may provide a remedy for violations of state knock-and-announce statutes, and nothing in Hudson prohibits it from doing so. Benefield was based on state law grounds and not the Fourth Amendment.

Whether We Should Recede from Benefield

In urging us to recede from Benefield, the State relies on three grounds: (1) the Supreme Court’s opinion in Hudson; (2) the adoption of an amendment to our state constitution requiring this Court to interpret our constitutional amendment against unreasonable search and seizures in conformity with the United States Constitution; and (3) our opinion in Jenkins v. State, 978 So.2d 116 (Fla.2008), regarding our approach to remedying statutory violations committed by law enforcement officers. In North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612, 637 (Fla.2003), we explained when circumstances require that we recede from precedent:

Before overruling a prior decision of this Court, we traditionally have asked several questions, including the following. (1) Has the prior decision proved unworkable due to reliance on an impractical legal “fiction”? (2) Can the rule of law announced in the decision be reversed without serious injustice to those who have relied on it and without serious disruption in the stability of the law? And (3) have the factual premises underlying the decision changed so drastically as to leave the decision’s central holding utterly without legal justification?

See also Valdes v. State, 3 So.3d 1067, 1077 (Fla.2009) (same). We conclude that none of the developments relied on by the State are sufficient to overcome the presumption in favor of adhering to our precedent.

Hudson

The State contends first that Hudson requires us to recede from Benefield. We disagree because we find Benefield distinguishable. In Benefield, we determined that a violation of the state’s knock-and-announce statute, not a constitutional violation, mandated the remedy of exclusion. We conclude that because Hudson does not address the remedy for state-created statutory violations, Hudson does not require us to recede from Benefield.

Constitutional Amendment

The State also argues that a 1982 amendment to the Florida Constitution requires us to recede from Benefield after Hudson. Article I, section 12, of the Florida Constitution, which was amended in 1982 and effective January 3, 1983, provides in pertinent part: “The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures, ... shall not be violated.... This right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” This Court held in Bernie v. State, 524 So.2d 988, 990-91 (Fla.1988), that following the 1982 amendment to the Florida Constitution,

we are bound to follow the interpretations of the United States Supreme Court with relation to the fourth amendment, and provide no greater protection than those interpretations. Indeed, an exclusionary rule that was once constitutionally mandated in Florida can now be eliminated by judicial decision of the United States Supreme Court.

However, we conclude that this amendment is inapplicable to the instant case because, as explained above, Hudson is not automatically dispositive of the question of whether the exclusionary rule may be applied for violations of Florida’s knock-and-announce statute because it involved a Fourth Amendment knock-and-announce violation — not one based on a state statute.

Jenkins v. State

The State finally argues that our precedent in Jenkins v. State changed the way we analyze the remedy of exclusion of evidence for statutory violations. We disagree. In Jenkins, this Court considered, among other things, whether the exclusionary rule was a remedy for a violation of Florida’s strip search statute. 978 So.2d at 129. The Court noted that “the plain language of [the statute] does not expressly provide for exclusion of evidence as a remedy for a violation of the statute.” Id. at 130. However, the Court also noted that the statute made explicit reference to civil and injunctive remedies, and “[s]ince the Legislature chose to reference these remedies in the statute, we must assume that the Legislature intended to exclude all other remedies. Therefore, it would be inappropriate for this Court to read a judicially created remedy into the statute.” Id. at 130 n. 14.

In reaching this conclusion, this Court noted that it has held that the exclusionary rule applies to certain statutes that are silent as to a remedy for their violation. Id. (citing State v. Johnson, 814 So.2d 390 (Fla.2002) (exclusionary rule applies to willful violation of statute governing confidentiality of patient medical records); Benefield, 160 So.2d 706). The Court then noted, without deciding, that Hudson may impact this Court’s decision in Benefield. See id.

We conclude that Jenkins is distinguishable from this case. The strip-search statute at issue in Jenkins explicitly provided civil and injunctive remedies — thus indicating that the Legislature intended to omit an exclusionary remedy, as reasoned by the Court in Jenkins. The knock-and-announce statutes in Florida do not explicitly provide for any remedies. The State argues that a person harmed by a violation of the knock-and-announce statute may seek civil damages for a violation. However, without a basis in the statute for civil remedies, and because of the difficulties faced by a defendant seeking to recover money damages for a statutory violation against the police, we are concerned that the important values represented by the knock-and-announce statute, which is based on common law origins, would be undermined if the exclusionary rule did not apply to its violation.

The fact that Benefield has been the law since 1964 and the fact that the statute has not been amended by the Legislature to prohibit the remedy of exclusion are further considerations in favor of not receding from Benefield. As we have observed, “[l]ong-term legislative inaction after a court construes a statute amounts to legislative acceptance or approval of that judicial construction.” Goldenberg v. Sawczak, 791 So.2d 1078, 1081 (Fla.2001).

This Case

In this case, although the Deputy Lawrence acted pursuant to a valid arrest warrant, he never announced his purpose before entering the motel room. This is not simply a technical omission. A citizen’s obligation to respond to a request to allow a law enforcement officer into his or her home depends on the purpose of the law enforcement officer’s request. While a citizen has every right to refuse entry to an officer who may be merely seeking information or conducting an investigation, the citizen has no right to refuse entry by an officer whose purpose in seeking entry is to execute an arrest warrant or search warrant. Before law enforcement officials may properly enter a private building to effect an arrest and “use all necessary and reasonable force to enter any building or property,” § 901.19(1), Fla. Stat., they are required to announce their purpose. Accordingly, because in this case the State concedes that the deputy never announced his purpose, the Second District properly applied our precedent to suppress the evidence seized as a result of the unlawful entry.

CONCLUSION

For the foregoing reasons, we answer the certified question of great public importance in the affirmative and approve the Second District’s decision in Cable. We disapprove of the Third District’s alternative holding in Brown, which relied on Hudson and the 1982 constitutional amendment to conclude that the exclusionary remedy no longer existed for statutory knock-and-announce violations. We remand to the Second District for proceedings consistent with this opinion.

It is so ordered.

PARIENTE, LEWIS, QUINCE, and PERRY, JJ., concur.

POLSTON, J., dissents with an opinion, in which LABARGA, J., concurs.

CANADY, C.J., recused.

POLSTON, J.,

dissenting.

By adding an exclusionary rule to remedy a violation of Florida’s knock-and-announce statutory requirement, the majority improperly applies a remedy that is not present in the statute and that is contrary to both the United States and Florida Constitutions.

The majority acknowledges that, under both the United States and Florida Constitutions, the exclusionary rule does not apply to knock-and-announce violations. See Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006); art. I, § 12, Fla. Const. Further, Florida’s knock-and-announce statute at issue does not contain an exclusionary rule. See § 901.19, Fla. Stat. (2005). This is not surprising because the statute is patterned after English common law, which had no exclusionary rule. See 8 John Henry Whitmore, A Treatise on the Ango-Ameri-can System of Evidence in Trials at Common Law § 2183 (8d ed. 1940) (“[I]t has long been established that the admissibility of evidence is not affected by the illegality of the means through which the party has been enabled to obtain the evidence.” (citing to English precedent dating back to 1723) (emphasis omitted)).

Accordingly, without this additional remedy added by the Court in Benefield v. State, 160 So.2d 706 (Fla.1964), the plain language of section 901.19 would be consistent with the United States and Florida Constitutions, and English common law. Therefore, for the same reasoning followed by the United States Supreme Court in Hudson, I would recede from Benefield.

Because the majority’s decision is premised on common law principles, the Florida Legislature may choose to eliminate the majority’s exclusionary rule for knock-and-announce violations.

I respectfully dissent.

LABARGA, J., concurs.

      . The 2010 version of section 901.19 remains the same as the 2005 version.

      . At the time of the Benefield decision, the language of section 901.19(1) provided:
      An officer, in order to make an arrest either by virtue of a warrant, or when authorized to make such arrest for a felony without a warrant, may break open a door or window of any building in which the person to be arrested is or is reasonably believed to be, if he is refused admittance after he has announced his authority and purpose.
      160 So.2d at 708.


author: QUINCE, J.

text:
    Aniceto JAIMES, Petitioner, v. STATE of Florida, Respondent.
    No. SC09-1694.
    Supreme Court of Florida.
    Dec. 9, 2010.

      James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Tenth Judicial Circuit, Bartow, FL, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, FL, Robert J. Krauss, Bureau Chief, and Tonja Rene Vickers, Assistant Attorneys General, Tampa, FL, for Respondent.
   QUINCE, J.

We have for review the decision of the Second District Court of Appeal in Jaimes v. State, 19 So.3d 347 (Fla. 2d DCA 2009). Aniceto Jaimes challenges his conviction for aggravated battery by causing great bodily harm on the grounds that the “great bodily harm” version of aggravated battery, although contained in the jury instructions, was not charged in the information that was filed against him by the State. Below, the Second District held that because Jaimes’s attorney failed to object to the jury instructions at trial, the error was not preserved for appellate review. Citing this Court’s decision in State v. Weaver, 957 So.2d 586 (Fla.2007), the district court further concluded that the error was not fundamental to Jaimes’s conviction.

We have jurisdiction based on a misapplication of our decision in Weaver. See art. V, § 3(b)(3), Fla. Const.; see also Wallace v. Dean, 3 So.3d 1035, 1040 (Fla.2009) (identifying misapplication of decisions as a basis for express and direct conflict jurisdiction under article V, section 3(b)(3)). As explained more fully below, the rule we announced in Weaver does not apply when a defendant has been specifically convicted of an uncharged offense. In this case, where the trial court’s instruction resulted in the defendant’s conviction for a crime that was never charged, fundamental error occurred. Accordingly, we quash that portion of the decision of the Second District that is inconsistent with this opinion and remand to the district court with directions that the district court in turn remand to the trial court with instructions to enter a verdict for the lesser included offense of simple battery.

FACTS AND PROCEDURAL HISTORY

On the evening of July 9, 2004, Jaimes and three friends entered Judy’s Place, a bar-restaurant located in Clewiston, Florida. An altercation began between Jaimes’s group and several patrons of the bar, and Jaimes and his friends were asked to leave by the owner. John Horns-by, a musician who was performing in the bar that evening, testified at trial that a larger barroom brawl began when Jaimes punched him in the head. When the brawl subsided several minutes later, Jaimes and his friends exited the bar. Once outside, Jaimes allegedly struck victims Richard Miller and Michael Proctor with a wooden club. Miller and Proctor were also beaten with sticks wielded by Jaimes and his friends. Karen Lamb, Miller’s fiancée, watched the confrontation from the front seat of Miller’s vehicle. Jaimes and his friends fled in a pickup truck, but were apprehended by police shortly thereafter. Miller and Proctor were taken to the emergency room and treated for their injuries.

Following his arrest, Jaimes was charged by information with two counts of aggravated battery with a deadly weapon and one count of simple battery, each against a different victim. Under Florida law, an aggravated battery may be committed either by causing great bodily harm to the victim in the course of committing a battery, or by committing a battery through the use of a deadly weapon. See § 784.045(l)(a)l.-2., Fla. Stat. (2004). At trial, although Jaimes was only charged with the deadly weapon form of the offense, the jury was erroneously instructed that it could also find Jaimes guilty if it determined that he had caused great bodily harm to the victims. No objection was made to this instruction. Further, the jury was given a verdict form which allowed it to specifically choose between the two forms of aggravated battery. After deliberation, the jury found Jaimes guilty of simple battery against John Hornsby, aggravated battery with a deadly weapon against Michael Proctor, and aggravated battery by causing great bodily harm against Richard Miller. Jaimes was sentenced to concurrent terms of twenty-five years in prison for each count of aggravated battery, and 364 days in prison for the count of simple battery.

Jaimes appealed his convictions and sentences to the Second District, raising two claims. In his first claim, Jaimes argued that it was error to convict him of aggravated battery by causing great bodily harm when the information did not charge him with that form of the offense. See Jaimes, 19 So.3d at 348. Denying relief, the district court’s opinion stated as follows:

Although we recognize that it was error to convict Mr. Jaimes of aggravated battery' by causing great bodily harm on Mr. Miller when that crime was not charged in the information, we affirm because defense counsel failed to preserve the issue for review on appeal. Defense counsel made no objection to the jury instructions or verdict form, and we conclude such error is not fundamental in Mr. Jaimes’s circumstances. See State v. Weaver, 957 So.2d 586 (Fla.2007).

Jaimes, 19 So.3d at 348.

Jaimes sought review in this Court, alleging that the decision of the Second District is in conflict with this Court’s decision in Weaver. We granted review, Jaimes v. State, 29 So.3d 291 (Fla.2009), and now quash the portion of the district court’s decision that affirms Jaimes’s conviction for aggravated battery by causing great bodily harm.

ANALYSIS

We begin our analysis with an overview of the law concerning the preservation of a jury instruction error. As a general matter, instructions to a jury are subject to the contemporaneous objection rule. Pursuant to Florida Rule of Criminal Procedure 3.390(d), “No party may raise on appeal the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection.” Absent such an objection at trial, an unpreserved error may be reviewed on appeal only if it rises to the level of fundamental error. See Reed v. State, 837 So.2d 366, 370 (Fla.2002); see also Ray v. State, 403 So.2d 956, 960 (Fla.1981) (“The main benefit to a defendant having a procedural defect declared fundamental error is that such error can be considered on appeal even though not objected to in the lower court.”). Here, because no objection was made to the court’s erroneous instruction at trial, the error must qualify as “fundamental” in order to be considered on appeal.

In defining the scope of the fundamental error doctrine, we have explained that a fundamental error is one that “goes to the foundation of the case or goes to the merits of the cause of action.” Sanford v. Rubin, 237 So.2d 134, 137 (Fla.1970). “To justify not imposing the contemporaneous objection rule, ‘the error must reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.’ ” State v. Delva, 575 So.2d 643, 644-45 (Fla.1991) (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960)). In other words, the doctrine of fundamental error applies when an error has affected the proceedings to such an extent it equates to a violation of the defendant’s right to due process of law. See F.B. v. State, 852 So.2d 226, 229 (Fla.2003); see also Ray, 403 So.2d at 960 (“[F]or error to be so fundamental that it may be urged on appeal, though not properly presented below, the error must amount to a denial of due process.”).

It is a fundamental principle of due process that a defendant may not be convicted of a crime that has not been charged by the state. See Thornhill v. Alabama, 310 U.S. 88, 96, 60 S.Ct. 736, 84 L.Ed. 1093 (1940) (“Conviction upon a charge not made would be sheer denial of due process.”); Price v. State, 995 So.2d 401, 404 (Fla.2008) (“There is a denial of due process when there is a conviction on a charge not made in the information or indictment.”); see also Cole v. Arkansas, 333 U.S. 196, 201, 68 S.Ct. 514, 92 L.Ed. 644 (1948) (“It is as much a violation of due process to send an accused to prison following conviction of a charge on which he was never tried as it would be to convict him upon a charge that was never made.”). Therefore, an error that directly results in such a conviction is by definition fundamental.

In the present case, there is no question that the defendant was convicted of an offense that was never charged. The information charged Jaimes with committing a battery against Richard Miller, and that he did so by using a deadly weapon. See § 784.045(1)(a)2. However, the jury was erroneously instructed that it could convict Jaimes of aggravated battery if it determined that, in the course of committing a battery, Jaimes had caused Miller great bodily harm, permanent disability, or permanent disfigurement. See § 784.045(1)(a)1. The jury then convicted Jaimes based specifically on the fact that he had caused the victim great bodily harm, despite the fact that the extent of the victim’s injuries was never an element of the offense as it was charged in the information. Thus, Jaimes was convicted of a form of aggravated battery which requires an element not contained in the charging document, and his right to due process was therefore violated. The guilty verdict in this case clearly “could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 645 (quoting Brown, 124 So.2d at 484). Accordingly, we find that the instruction in this case was fundamental error, and the fact that Jaimes’s counsel failed to object at trial will not bar its consideration and correction on appeal.

In denying relief on this claim, the district court relied on this Court’s decision in Weaver, 957 So.2d 586, which quashed the prior holding of the Second District in Weaver v. State, 916 So.2d 895 (Fla. 2d DCA 2005). Although the underlying facts of Weaver are similar to those presented here, we find that the Second District misapplied this Court’s decision in holding that the instruction in this case was not fundamental error. In Weaver, the defendant was tried for the offense of battery on a law enforcement officer. See § 784.07, Fla. Stat. (2005). Under section 784.03(1)(a), Florida Statutes (2005), a battery may be committed in two ways, occurring either when a person “[ajctually and intentionally touches or strikes another person against the will of the other,” or when a person “[ijntentionally causes bodily harm to another person.” Although Weaver was only charged with the first form of the offense, intentional touching or striking, the jury was instructed that it could find the defendant guilty if it determined that he had either intentionally touched or struck the officer or caused the officer bodily harm. See Weaver, 957 So.2d at 587. As in the present case, no objection was made to the instruction by Weaver’s attorney. See id. The jury found Weaver guilty of battery. However, the verdict did not specify whether the conviction was based on the charged or uncharged form of the offense. See id.

On appeal, the Second District, applying its previous decisions in Dixon v. State, 823 So.2d 792 (Fla. 2d DCA 2001), and Vega v. State, 900 So.2d 572 (Fla. 2d DCA 2004), reversed the conviction. In Dixon, as in Weaver, the jury was instructed on an uncharged alternative form of battery on a law enforcement officer. The jury then returned a general verdict of guilty. See Dixon, 823 So.2d at 794. Reviewing the verdict on appeal, the Second District explained that it found the error to be fundamental “because the jury’s general verdict ma[de] it impossible to know whether Dixon was convicted of the offense with which he was charged, i.e., intentional touching battery, or an offense with which he was not charged, i.e., bodily harm battery.” Id. The Second District reaffirmed this rule in Vega, 900 So.2d at 573, holding that an instruction on an uncharged alternative form of battery was fundamental error “because the jury returned a general verdict of guilt without specifying the basis for the conviction, making it impossible to know whether Vega was convicted of the form of battery with which he was charged rather than the form with which he was not charged.”

In overturning Weaver’s conviction, the Second District explained that it was constrained by its prior precedents in Dixon and Vega. See Weaver, 916 So.2d at 898. However, the court also noted that no evidence had been presented on the uncharged version of the offense in Weaver’s case and that nothing in the record suggested that the jury’s verdict was based on anything other than the version of the offense that was actually charged. The court questioned whether a per se rule of fundamental error was appropriate under such circumstances, and observed that “[ujnder a traditional harmless error analysis, we would conclude beyond a reasonable doubt that the error did not affect the verdict.” Id.

This Court granted review and disapproved of the absolute rule adopted by the district court. Previously, in State v. Delva, 575 So.2d 643, 645 (Fla.1991), we had held that it was not fundamental error to fail to instruct a jury on an element of a crime that is not disputed by the parties. Applying the reasoning of that case to the facts presented in Weaver, we explained that

[although Delva involved the trial court’s omission from the jury instructions of an element of an offense that the defendant did not contest ... the same principle applies to the erroneous inclusion of an element that the State does not argue is present and about which it presents no evidence. As with the omission of an element of the offense that is not contested, the erroneous inclusion of an element that the State concedes does not apply, and concerning which it presents no evidence, is not “pertinent or material to what the jury must consider in order to convict.”

Weaver, 957 So.2d at 588-89 (quoting Delva, 575 So.2d at 645).

In Weaver, the record demonstrated — as the Second District had recognized — that the State never argued at trial that Weaver had caused great bodily harm to the police officer, nor had any evidence been presented regarding the victim’s injuries. See id. at 589. We concluded that because the uncharged version of the offense was never at issue, it could be assumed that the jury’s general verdict of guilty was not based on the uncharged theory. See id. In such cases, we explained, “We are confident that ... the jury’s verdict is based not on elements that were never at issue, but on the elements on which the State based its arguments, and which the defendant contested at trial.” Id. For that reason, we held that the faulty instruction in Weaver did not rise to the level of fundamental error. See id.

Although the errors in Jaimes and Weaver — an instruction on an uncharged version of a charged offense — are essentially the same, the rule we adopted in Weaver does not apply to the circumstances presented here. In Weaver, our holding was based on an underlying ambiguity in the jury’s verdict, namely that where a general verdict is returned, it is unclear on the face of the verdict whether the jury convicted the defendant of the charged or uncharged form of the offense. Where the record shows that no argument has been made and no evidence has been presented on the uncharged version, it may be assumed that the defendant was convicted of the form of the offense on which the state actually based its arguments. See Weaver, 957 So.2d at 589; cf. Sanders v. State, 959 So.2d 1282, 1284 (Fla. 2d DCA 2007) (finding an instruction on an uncharged form of battery to be fundamental error where the prosecution argued in favor of and presented evidence on the uncharged theory). In Weaver, then, we did not need to apply the general rule that “a conviction on a charge not made by the indictment or information is a denial of due process of law,” Gray, 435 So.2d at 818, because there was no reason to believe that Weaver had in fact been convicted of an uncharged crime. See Weaver, 957 So.2d at 589. Thus, the error was neither pertinent nor material to what the jury had to consider in order to convict the defendant. See Stewart, 420 So.2d at 863.

In the present case, however, the jury returned a specific verdict in favor of an uncharged form of aggravated battery. See Jaimes, 19 So.3d at 348. As discussed above, the extent of the victim’s injuries was not an element of the offense as it was charged in the information. Although the information charged Jaimes with committing an aggravated battery by using a deadly weapon, the jury explicitly based its verdict on its determination that Jaimes had caused the victim great bodily harm. See § 784.045(1)(a)1.-2. Regardless of the arguments made or the evidence presented, it is' impossible to assume, as we did in Weaver, that the improper instruction had no effect on the jury’s decision; the record makes it clear that the guilty verdict in this case “could not have been obtained without the assistance of the alleged error.” Delva, 575 So.2d at 645 (quoting Brown, 124 So.2d at 484).

As this Court has long recognized, “one charged with a crime cannot be indicted for one offense and convicted or sentenced for another, even though the offenses are closely related and may be of [the] same general character.” Perkins v. Mayo, 92 So.2d 641, 643 (Fla.1957). Because Jaimes was convicted of an offense based on elements that were never charged, we find that due process was violated and fundamental error occurred. See Gray, 435 So.2d at 818. Accordingly, we quash the district court’s decision affirming Jaimes’s conviction on the challenged count of aggravated battery.

REMEDY

Under section 924.34, Florida Statutes (2010), when an appellate court vacates a conviction but determines that the evidence establishes the defendant’s guilt as to a lesser included offense, “the appellate court shall reverse the judgment and direct the trial court to enter judgment for the ... lesser included offense.” Here, the jury was instructed on aggravated battery with simple battery as a lesser included offense. To convict Jaimes of simple battery, the jury was required to find that Jaimes intentionally touched or struck the victim against his will or intentionally caused the victim bodily harm. See § 784.03. To convict Jaimes of aggra- voted battery, the jury was required to find, first, that Jaimes had committed each element of simple battery under section 784.08, and second, that Jaimes had committed the battery by using a deadly weapon. See § 784.045. Thus, while the information did not charge the form of aggravated battery on which the jury based its conviction, the elements of simple battery were both supported by the charging document and the proof at trial, and each element of the offense was determined by the jury beyond a reasonable doubt. See State v. Sigler, 967 So.2d 835, 842 (Fla.2007). We may therefore direct that Jaimes’s case be remanded to the trial court with instructions to enter a verdict for the lesser included offense of simple battery.

CONCLUSION

Because the defendant was specifically convicted of an offense based on elements that were never charged, we find that fundamental error occurred in this case. Accordingly, we quash the portion of the district court’s decision affirming Jaimes’s conviction for aggravated battery by causing great bodily harm and remand to the Second District with instructions to direct the entry of a verdict for the lesser included offense of simple battery.

It is so ordered.

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

      . Regarding Jaimes’s second claim, the Second District determined that the trial court had erred in sentencing Jaimes to twenty-five years' incarceration on each count of aggravated battery when the statutory maximum for that offense was fifteen years. Jaimes, 19 So.3d at 348-49. The State conceded the error in the district court, see id. at 348, and neither party has challenged this aspect of the Second District’s ruling before this Court.

      . We have cautioned, however, that "the doctrine of fundamental error should be applied only in the rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.” Ray, 403 So.2d at 960. An error will not be considered fundamental if it is not "pertinent or material to what the jury must consider in order to convict.” Stewart v. State, 420 So.2d 862, 863 (Fla.1982).

      . For example, this Court has held that a charging document is fundamentally defective where it fails to allege one or more essential elements of an offense, the reason being that such an indictment or information "fails to charge a crime under the laws of the state.” State v. Gray, 435 So.2d 816, 818 (Fla.1983). We explained in Gray that "[s]ince a conviction cannot rest upon such an indictment or information, the complete failure of an accusatory instrument to charge a crime is a defect that can be raised at any time — before trial, after trial, on appeal, or by habeas corpus.” Id.