author: VILLANTI, Judge. SILBERMAN, Chief Judge, NORTHCUTT, Judge,

text:
    Shedrick Reshord JENRETTE-SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1031.
    District Court of Appeal of Florida, Second District.
    May 31, 2013.

      Howard L. Dimmig, II, Public Defender, and Bruce G. Howie, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

Shedrick Jenrette-Smith appeals his convictions on fourteen counts of promoting a sexual performance by a child in violation of section 827.071(3), Florida Statutes (2008). His offenses were reclassified from second-degree felonies to first-degree felonies by virtue of section 775.0847(2), Florida Statutes (2008), after the jury determined that Jenrette-Smith possessed ten or more images of child pornography, of which at least one depicted the sexual battery of a child. On appeal, Jenrette-Smith challenges his convictions, the reclassifications, and the denial of his motion to suppress evidence. We affirm the denial of the motion to suppress without further comment. We also affirm Jenrette-Smith’s convictions and sentences and write to explain our reasoning.

I. FACTS

The evidence at trial reflected that for a number of weeks in the spring of 2009 Jenrette-Smith, aged thirty, engaged in a consensual sexual relationship with M.S., a sixteen-year-old girl who had run away from foster care. According to M.S., although other people lived in the house where Jenrette-Smith lived, Jenrette-Smith had his own bedroom. M.S. testified that on one or two days she and Jenrette-Smith used a disposable film camera to photograph themselves engaging in a variety of sexual activities. Despite the jointly occupied house, she and Jenrette-Smith were alone when the photographs were taken.

M.S. testified that she and Jenrette-Smith together took the camera to Wal-greens to have the film developed, and they later returned together to pick up the developed photographs, for which Jen-rette-Smith paid. M.S. testified that the photographs were then stored under the mattress of the bed that she and Jenrette-Smith shared in his bedroom. M.S. further testified that Jenrette-Smith did not show the photographs to others; instead, she agreed that “he kind of kept them to himself.” Moreover, when M.S. stopped seeing Jenrette-Smith, the photographs were to her knowledge still under the mattress.

The photographs came to the authorities’ attention when a man who identified himself only as “James” approached a Tampa police officer and gave him an envelope containing the photographs. The authorities were unable to locate “James” thereafter, and he did not testify at trial. However, the authorities investigated and ultimately determined that Jenrette-Smith was the man in the photographs and that the female in the photographs was underage. This information led to the issuance of a criminal report affidavit for the arrest of Jenrette-Smith.

After Jenrette-Smith was arrested, the State charged him with fourteen counts of promoting a sexual performance by a child — one count for each photograph. Jenrette-Smith was convicted following a jury trial, and he was sentenced to thirty years in prison as a prison releasee reof-fender. Jenrette-Smith now appeals his convictions and sentences.

II. CONVICTIONS UNDER SECTION 827.071(3), FLORIDA STATUTES

Jenrette-Smith first contends that he was improperly convicted under section 827.071(3), arguing that the State failed to prove the “performance” element of the offense. Section 827.071(3) provides:

A person is guilty of promoting a sexual performance by a child when, knowing the character and content thereof, he or she produces, directs, or promotes any performance which includes sexual conduct by a child less than 18 years of age. Whoever violates this subsection is guilty of a felony of the second degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) Section 827.071(l)(b) defines the term “performance” for purposes of section 827.071 as “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” The statute does not define the phrase “exhibited before an audience.”

At trial, Jenrette-Smith timely moved for a judgment of acquittal, arguing that the State had failed to prove that the photographs at issue were ever “exhibited before an audience.” In doing so, Jen-rette-Smith relied solely on the language of section 827.071(l)(b). The trial court, however, denied the motion on the authority of Schmitt v. State, 563 So.2d 1095, 1101 (Fla. 4th DCA 1990), approved in part, quashed in part on other grounds, 590 So.2d 404 (Fla.1991), which rejected the assertion that a conviction for promoting a sexual performance by a child could not be predicated on a videotape that had never actually been shown to an “audience,” as that term is commonly understood.

This court and others have similarly held that exhibition before an audience is not a required element of the offense of promoting a sexual performance by a child. See, e.g., Killian v. State, 761 So.2d 1210, 1214 (Fla. 2d DCA 2000); Bishop v. State, 46 So.3d 75, 79 (Fla. 5th DCA 2010); Ladd v. State, 715 So.2d 1012, 1015 (Fla. 1st DCA 1998); Firkey v. State, 557 So.2d 582, 584 (Fla. 4th DCA 1989), disapproved on other grounds by Wilson v. State, 635 So.2d 16 (Fla.1994). Bound by our precedent in Killian, we reject Jenrette-Smith’s argument and affirm the convictions at issue here.

III. RECLASSIFICATION UNDER SECTION 775.0847(2), FLORIDA STATUTES

Jenrette-Smith also argues that the trial court erred when it denied his motion for judgment of acquittal as to the reclassification of his offenses pursuant to section 775.0847(2). That statute provides:

(2) A violation of s. 827.071 ... shall be reclassified to the next higher degree as provided in subsection (3) if:
(a) The offender possesses 10 or more images of any form of child pornography regardless of content; and
(b) The content of at least one image contains one or more of the following:
3. Sexual battery involving a child.

Jenrette-Smith contends that the evidence presented at trial was insufficient to establish that he ever possessed the images and thus that reclassification was improper. We cannot agree for two reasons.

First, the State presented sufficient evidence of Jenrette-Smith’s actual possession of the requisite images of child pornography to avoid his motion for judgment of acquittal on the reclassification issue. It was undisputed at trial that Jen-rette-Smith actually possessed the disposable camera that was used to take the photographs that were ultimately turned over to the police. It was therefore undisputed that Jenrette-Smith had, at some point in time, actual possession of the film on which the images were captured. The fact that chemical processes were required to render those images visible to the naked eye does not change the fact that Jen-rette-Smith had actual possession of the images.

Second, the State also presented sufficient evidence of Jenrette-Smith’s constructive possession of the developed photographs — which are indubitably images of child pornography. “In a constructive possession case, the State’s burden is to show beyond a reasonable doubt that the defendant knew of the presence of the contraband and that he had the ability to exercise dominion and control over it.” Wagner v. State, 950 So.2d 511, 512 (Fla. 2d DCA 2007). When contraband is found in jointly occupied premises, “constructive possession may be established through ‘evidence that the defendant had actual knowledge of the presence of the contraband or evidence of incriminating statements or circumstances, other than simple proximity to the contraband, from which the jury could infer the defendant’s knowledge’ of the contraband.” Jackson v. State, 995 So.2d 535, 540 (Fla. 2d DCA 2008) (quoting Wagner, 950 So.2d at 513). In addition, “[a]n inference of knowledge and dominion and control may also arise where the contraband located in jointly occupied premises is found in or about other personal property which is shown to be owned or controlled by the defendant.” Id.

Here, the State presented evidence that Jenrette-Smith knew of the existence of the photographs in his bedroom through M.S.’s testimony that she and Jenrette-Smith went together to pick them up, that Jenrette-Smith paid for them, and that he stored them under the mattress in his bedroom. The State also offered evidence of Jenrette-Smith’s dominion and control over the photographs through M.S.’s testimony that he kept the photographs “to himself’ and stored them under his mattress — personal property owned or controlled by Jenrette-Smith — in his bedroom in an otherwise jointly occupied house.

“A motion for judgment of acquittal is designed to challenge the legal sufficiency of the evidence.” State v. Odom, 862 So.2d 56, 59 (Fla. 2d DCA 2003) (citing State v. Williams, 742 So.2d 509, 511 (Fla. 1st DCA 1999)). Thus, when the State presents competent evidence to establish every element of the crime, a judgment of acquittal is improper. Odom, 862 So.2d at 59. M.S.’s testimony, and the permissible inferences from it, were sufficient to satisfy the State’s burden on Jenrette-Smith’s motion for judgment of acquittal regarding the issue of possession of the photographs. Thus, the trial court properly denied the motion for judgment of acquittal as to the reclassification of Jenrette-Smith’s offenses, and hence we affirm his sentences.

Affirmed.

SILBERMAN, C.J., Concurs specially with opinion.

NORTHCUTT, J., Dissents with opinion.

SILBERMAN, Chief Judge,

Concurring specially.

I share some of the concerns expressed by the dissent regarding the interpretation of the phrase “exhibited before an audience,” but because we are bound by this court’s decision in Killian v. State, 761 So.2d 1210 (Fla. 2d DCA 2000), I concur in the decision to affirm the convictions under section 827.071(3). Further, although I am not fully convinced regarding the analysis of actual possession contained in the majority opinion, I agree that the evidence as to constructive possession is sufficient to support reclassification of the offenses under section 775.0847(2). Finally, I agree that the trial court did not err in denying Jenrette-Smith’s motion to suppress. For these reasons, I concur in the decision to affirm Jenrette-Smith’s convictions and sentences.

NORTHCUTT, Judge,

Dissenting.

I would reverse Jenrette-Smith’s convictions because the State did not prove that the offending photographs were ever exhibited before an audience, an express element of the offense as defined by the statute. Failing that, I would reverse the reclassification of those convictions from second-degree felonies to first-degree felonies because the State did not prove that when committing the offenses Jenrette-Smith possessed any offending images. The majority’s determination to affirm on both issues perpetuates a line of decisions by district courts of appeal bent on disregarding a clear legislative directive governing the interpretation of criminal statutes, notwithstanding Florida Supreme Court decisions holding that compliance with that directive is mandatory.

I. THE MANDATORY RULE OF CONSTRUCTION

Section 775.021(1) states: “The provisions of this [criminal] code and offenses defined by other statutes shall be strictly construed; when the language is susceptible of differing constructions, it shall be construed most favorably to the accused.” This straightforward direction is a codification of the rule of lenity, which has deep roots in our common law. The rule is “[o]ne of the most fundamental principles of Florida law.” Perkins v. State, 576 So.2d 1310, 1312 (Fla.1991). It derives from the due process requirement that “criminal statutes must say with some precision exactly what is prohibited.” Id.

Indeed, our system of jurisprudence is founded on a belief that everyone must be given sufficient notice of those matters that may result in a deprivation of life, liberty, or property. For this reason,
[a] penal statute must be written in language sufficiently definite, when measured by common understanding and practice, to apprise ordinary persons of common intelligence of what conduct will render them liable to be prosecuted for its violation.
Gluesenkamp v. State, 391 So.2d 192, 198 (Fla.1980), cert. denied, 454 U.S. 818, 102 S.Ct. 98, 70 L.Ed.2d 88 (1981) (citations omitted).

576 So.2d at 1312 (citations omitted). Put another way, “if there is a reasonable construction of a penal statute favorable to the accused, the court must employ that construction.” Wallace v. State, 860 So.2d 494, 497-98 (Fla. 4th DCA 2003).

The supreme court has recognized that in Florida the rule of lenity is a statutory directive, and it has consistently adhered to the rule even in the face of contrary reasonable interpretations produced by other principles of statutory construction. For example, in State v. Huggins, 802 So.2d 276 (Fla.2001), the court considered the rulings of the trial court and the Fourth District that a defendant who had burgled an unoccupied dwelling was not subject to enhanced sentencing under the Prison Releasee Reoffender Punishment Act. The statute defined “prison releasee reoffender” as, among other things, a defendant who committed a “[bjurglary of an occupied structure or dwelling.” § 775.082(8)(a)(1)(q), Fla. Stat. (1997). The court noted that the definition was ambiguous because it was unclear whether the word “occupied” qualified only the word “structure,” as advocated by the State, or qualified both “structure” and “dwelling,” as contended by the defendant. 802 So.2d at 277. The court acknowledged that the State’s interpretation based on the statutory construction principle of “nearest antecedent,” i.e., that an adjective qualifies only the word nearest to it, and on references to other pertinent statutes, was not unreasonable. Id. However, because neither the State’s nor the defendant’s interpretation was unreasonable, under the rule of lenity the court was “bound” to construe the language most favorably to the defendant. Id. at 279.

The issue in Polite v. State, 973 So.2d 1107 (Fla.2007), was the extent to which the phrase “knowingly and willfully” qualified the elements of the crime of resisting an officer with violence. Section 843.01, Florida Statutes (2003), provided that “[wjhoever knowingly and willfully resists, obstructs, or opposes any officer ... in the execution of legal process or in the lawful execution of any legal duty” by doing violence to the officer was guilty of a third-degree felony. The State contended that “knowingly and willfully” only qualified the verbs “resists, obstructs, or opposes.” The defendant maintained that it applied to the entire phrase, including the victim’s status as an officer. The supreme court held that the rule of lenity mandated the latter construction because it was most favorable to the defendant. 973 So.2d at 1112. The court reached this conclusion before consulting rules of statutory construction which — “even beyond this fundamental tenet of Florida law regarding the construction of criminal statutes, which weighs in favor of the defendant” — additionally confirmed that the accused’s knowledge of the victim’s status as an officer was an element of the crime. Id.

In Kasischke v. State, 991 So.2d 803 (Fla.2008), the court addressed the following mandatory condition in section 984.03(5)(a)(7), Florida Statutes (1999), that was required to be imposed on sexual offenders who were sentenced to probation or community control:

Unless otherwise indicated in the treatment plan provided by the sexual offender treatment program, a prohibition on viewing, owning, or possessing any obscene, pornographic, or sexually stimulating visual or auditory material, including telephone, electronic media, computer programs, or computer services that are relevant to the offender’s deviant behavior pattern.

991 So.2d at 806. The State maintained that the phrase “relevant to the offender’s deviant behavior pattern” applied only to “sexually stimulating visual or auditory material,” such that the offender was to be barred from possessing all obscene or pornographic material and, additionally, was to be barred from possessing sexually stimulating visual or auditory material that was relevant to the offender’s deviant behavior pattern. The defendant argued that the phrase qualified “obscene, pornographic, or sexually stimulating visual or auditory material,” such that the condition only forbade any such material that was relevant to his deviant behavior. Id. at 807.

Recognizing that the statute was ambiguous, the court rebuffed the State’s arguments based on the law’s legislative history, deeming the efficacy of such endeavors in aid of statutory construction to be questionable generally and inconclusive in that specific case. “In any event,” the court wrote, “a defendant on probation or community control cannot be expected to research staff analyses to determine whether particular conduct is permitted.” Id. at 810. The court also found the rules of statutory construction, specifically the “doctrine of the last antecedent,” unhelpful. Mat 812-13.

The Kasischke court concluded that the rule of lenity mandated the construction of the statute that was most favorable to the accused. Thus, it held that the phrase “relevant to the offender’s deviant behavior pattern” qualified all of the prohibitions in the statute. Id. at 807, 815. “In Florida,” the court observed, “the rule [of lenity] is not just an interpretive tool, but a statutory directive.” Id. at 814; cf. Perkins, 576 So.2d at 1314 (observing that “[t]he state’s reliance on common law rules of construction such as ejusdem generis must yield to the rule of strict construction”).

In Jenrette-Smith’s case, the statutory rule of lenity is implicated both in the statute defining the substantive offense of which he was convicted, section 827.013, and in the statute under which that offense was reclassified to a first-degree felony, section 775.0847. The majority’s decision to affirm the convictions and reclassifica-tions violates the legislative directive as to the construction of those statutes and it conflicts with Florida Supreme Court decisions holding that the directive is mandatory.

II. CONVICTIONS UNDER SECTION 827.071(3)

Vis-a-vis the offense of promoting a sexual performance by child, the statutory rule of lenity is brought into play by two ambiguities stemming from the definition of the term “performance” as used in section 827.071(3). In section 827.071(l)(b), “performance” is said to mean “any play, motion picture, photograph, or dance or any other visual representation exhibited before an audience.” The first ambiguity relates to the extent to which the phrase “exhibited before an audience” qualifies the balance of the definition. The statute might be read to mean that only “any other visual representation” must be exhibited before an audience to violate the statute. On the other hand, it is also reasonable to interpret the phrase as qualifying the entire list of offending activities, such that a performance is defined as “any play, motion picture, photograph, or dance or any other visual representation” that is “exhibited before an audience.” Because the latter construction narrows the scope of the criminal prohibition, and thus is most favorable to the accused, it is the one that must prevail. Simply put, then: exhibition before an audience is an element of the crime defined in the statute.

Note that the question is not whether this interpretation is the most reasonable of the possibilities. Under section 775.021(1), courts must apply the rule of lenity when statutory language merely “is susceptible of differing constructions.” In that case, the statute “shall be construed most favorably to the accused.” Id. Again, as the Florida Supreme Court has recognized, this rule is not merely an aid to statutory construction to be weighed along with others. It is a statutory directive, which we must obey even if construction aids such as the doctrine of the last antecedent could support a different, reasonable interpretation. See Kasischke; Polite; Huggins.

When interpreting the promoting-a-performance statute, the district courts of appeal have violated the statutory rule of lenity at every turn. Rather than interpret an ambiguously worded element of the crime in accordance with the rule, the district courts have simply dispensed with the element altogether.

The line of misguided case law began in Firkey v. State, 557 So.2d 582 (Fla. 4th DCA 1989), disapproved on other grounds by Wilson v. State, 635 So.2d 16 (Fla.1994), in which a woman accidently viewed a videotape the defendant had made of his sexual encounter with the woman’s nine-year-old daughter. The Firkey court held that the making of the videotape in itself was sufficient to violate the statute. Id. at 584. Firkey, in turn, was authority for the Fourth District’s later holding in Schmitt v. State, 563 So.2d 1095 (Fla. 4th DCA 1990), approved in part, quashed in part on other grounds, 590 So.2d 404 (Fla.1991), that a conviction for promoting a sexual performance by a child could be predicated on a videotape that had never been shown to an audience.

In Ladd v. State, 715 So.2d 1012 (Fla. 1st DCA 1998), the First District rejected the defendant’s challenge to a jury instruction that stated:

The making of a motion picture or videotape which includes sexual conduct by a child less than 18 years of age is in and of itself sufficient to constitute performance even though the motion picture or videotape had never been exhibited before an audience. An individual can constitute an audience even if that individual accidentally played the tape and viewed the performance.

Id. at 1015. The Ladd court supported its conclusion that the instruction “correctly state[d] the law” simply by citing to Schmitt and Firkey. Id. Similarly, this court in Killian v. State, 761 So.2d 1210, 1214 (Fla. 2d DCA 2000), held that exhibition before an audience is not a required element of the offense of using a child in a sexual performance. The court offered no rationale for this holding beyond its citation to Ladd, Schmitt, and Firkey. Id. at 1214.

More recently, in Bishop v. State, 46 So.3d 75 (Fla. 5th DCA 2010), the Fifth District reviewed the convictions of a defendant who had videotaped his molestation of an eight-year-old girl in a secluded spot on the grounds of a resort hotel. The defendant was spied by a hotel guest and chased from the scene. As he fled, he managed to delete the video from his camera. He was later convicted of several offenses, including using a child in a sexual performance. On appeal, the defendant challenged his conviction on that charge because there was no evidence that the performance was exhibited before an audience. The Bishop court cast aside the argument. “Florida courts have uniformly construed section 827.071 to permit a conviction even where the video tape of the child’s engagement in sexual conduct is not shown to third persons.” Id. at 79 (citing Ladd, Killian, Schmitt, and Firkey). Further, “[a]n ‘audience’ can consist of a single individual and that individual can be the defendant.” Id.

Contrary to Bishop’s assertion that Florida’s courts have “uniformly construed” section 827.071(l)(b), only one of them, the Fourth District in Firkey, actually engaged in what might be termed a construction of the statute. In all the other cases the courts merely cited to Fir-key and its progeny for the bald proposition that exhibition before an audience is not necessary to a conviction.

For its part, the Firkey court acknowledged that the definition of “performance” set forth in section 827.071(l)(b) “might be ambiguous.” 557 So.2d at 584. But, the court wrote, “we choose to interpret it to mean that the making of such a motion picture is in and of itself sufficient when any of the participants is unaware of what is going on.” Id. at 584.

Obviously, the recording is made with the intention of being replayed; otherwise, the taping has no purpose. Whoever witnesses the replay constitutes an audience. See State v. George, 717 S.W.2d 857 (Mo.App.1986). The natural mother constituted an audience when she accidently played the tape and viewed the performance which led her to call the police. It is obvious that the child, albeit unwittingly, was induced to become a participant in a sexual performance and we are confident that the legislature did not intend that the creator of such a motion picture, complete with sound, should escape prosecution because he had not, as yet, had time to exhibit his vile handiwork.

As the supreme court has made clear, however, the Firkey court was not free simply to choose the interpretation of the statute that it considered to be the most palatable, or even the one that it believed to be the most sensible. See Kasischke, 991 So.2d at 814-15 (observing in regard to ambiguous criminal statute that we “cannot simply choose our preferred construction”). Rather, when interpreting an ambiguous criminal statute, the court is required by law to employ the construction that most favors the accused. § 775.021(1). The Firkey court’s failure to do so could not be justified by its supposition that the legislature would not wish a perpetrator to go unpunished if he had not yet exhibited the offending depiction. As the Perkins court put it, “[w]ords and meanings beyond the literal language may not be entertained nor may vagueness become a reason for broadening a penal statute.” 576 So.2d at 1312.

Whereas the ambiguity just discussed involved the scope of the phrase “exhibited before an audience” as a qualifier of other language in the definition, the remaining issue turns on the meaning of the phrase itself. In Firkey, the court posited that the young victim’s mother “constituted an audience when she accidently played the tape and viewed the performance.” As I have noted, other Florida courts have gone so far as to assert that the performance need not be observed by anyone other than the perpetrator or the victim — or, indeed, by anyone at all. Under this view, the crime is complete when a photograph is created, regardless of whether it is intended to be or is disseminated.

But, in common understanding and practice, exhibiting to an audience connotes volitional acts aimed at displaying something to someone else. Thus, in this context the verb exhibit means “to offer or expose to view; present for inspection ... to place on show ... to make or give an exhibition; present something to public view.” Random House Dictionary of the English Language 678 (2d ed. unabridged). The noun audience means “the group of spectators at a public event; listeners or viewers collectively, as in attendance at a theater or concert [;] ... the persons reached by a book, radio or television broadcast, etc.; ... a regular public that manifests interest, support, enthusiasm, or the like; a following.” Random House Dictionary 135; cf. Perkins, 576 So.2d at 1313 (referring to dictionary to discover ordinary and plain meaning of word used in statute).

Certainly, to hold that a depiction has been “exhibited before an audience” when seen only by its creator or participant, or accidently by a third person who was not meant to see it, or by no one, requires an expansive application of the phrase beyond its common and ordinary meaning— in violation of the statutory direction to construe criminal statutes strictly. If the legislature had intended the statute to encompass either viewings solely by the depiction’s creator or participant, or unintended sightings or viewings by third persons, it easily could have employed language that outlawed the promotion of performances that are “viewed” or “seen” or “observed” by any “person.” Cf. Kasischke, 991 So.2d at 813 n. 7 (describing ease with which legislature could have phrased statute to convey meaning advocated by State). And if the legislature had intended this crime to be complete upon creation of the depiction without it being seen by anyone at all, it certainly would have completely omitted the reference to exhibitions before an audience. It did not, of course, and the courts are not at liberty simply to dispense with the phrase. Larimore v. State, 2 So.3d 101, 106 (Fla.2008) (“words in a statute should not be construed as mere surplusage”) (citation and internal quotation marks omitted).

In short, no reasonable construction of the phrase “exhibited before an audience” can support the meaning ascribed to it by Firkey and its progeny. But even if it were reasonable to construe the statute as broadly as the Firkey court would have it, it is also reasonable to interpret the prohibition as contemplating only intentional presentations to third persons who intend to see them and are meant to do so. Under the lenity statute, and under well-established Florida Supreme Court precedents, we are obliged to apply the latter construction.

In Jenrette-Smith’s case, the evidence on this point reflected only that M.S. viewed the offending photographs when they were retrieved from the drugstore. The evidence did not disclose whether she did so intentionally, incidentally, at someone’s behest, or surreptitiously, and there was no proof that the photographs were shown to or viewed by anyone else. There was no evidence even that Jenrette-Smith himself had viewed them. M.S.’s testimony that Jenrette-Smith paid to have the photographs developed and printed did not prove that he viewed them or even physically handled them. (M.S. could not recall who carried them from the store.) And there was no testimony that Jenrette-Smith was the person who placed the photographs under the couple’s mattress. Therefore, the State did not prove that the photographs were exhibited before an audience, as required by section 827.071(l)(b) and (3).

III. RECLASSIFICATION UNDER SECTION 775.0847(2)

The majority’s error in affirming Jen-rette-Smith’s convictions is compounded by its determination to uphold the reclassification of his offenses. The reclassification statute, section 775.0847(2), provides:

(2) A violation of s. 827.071 ... shall be reclassified to the next higher degree as provided in subsection (3) if:
(a) The offender possesses 10 or more images of any form of child pornography regardless of content; and
(b) The content of at least one image contains one or more of the following:
3. Sexual battery involving a child.

In this case, the State’s evidence did not show that Jenrette-Smith ever possessed any of the images at issue.

The majority makes two arguments on this point. For one thing, it maintains that Jenrette-Smith at least jointly possessed the images when he and M.S. retrieved the printed photographs from the drugstore and when the prints were kept beneath the mattress that he shared with M.S. But for an accused to possess contraband, whether singly or jointly, he must “have personal charge of or exercise the right of ownership, management, or control over the thing possessed.” Fla. Std. Jury Instr. (Crim.) 25.7. There was no proof that Jenrette-Smith ever had or exercised ownership, management, or control over the photographs after they were developed. M.S. testified merely that the two of them went to the drugstore together when the prints were retrieved and that Jenrette-Smith paid the processing charge. She did not testify that Jenrette-Smith ever held, handled, or looked at them, or that he ever asserted any dominion over them. There was no evidence that he placed the photographs under the couple’s mattress or directed M.S. to do so, or even that he knew they were there. The elusive James, who delivered the photographs to the authorities, did not appear at trial to explain how he obtained them. At most, then, the evidence established that Jenrette-Smith was in M.S.’s company when she possessed the photographs. But his mere proximity to the photographs simply was insufficient to establish his possession of them, joint or otherwise. See Bennett v. State, 46 So.3d 1181 (Fla. 2d DCA 2010) (“Mere proximity to contraband is not enough.”)

Regardless, under the majority’s theory that the underlying offense of promoting a performance was complete when Jenrette-Smith tripped the shutter on the camera, his possession of the developed and printed photographs at some point afterward could not support the reclassification of those offenses.

The majority’s other assertion on this issue is that Jenrette-Smith possessed the “images” at the moment he took them. It cites no authority for that proposition. But when making this argument the State relied on Schneider v. State, 700 So.2d 1239 (Fla. 4th DCA 1997), in which the Fourth District held that exposed but undeveloped film inside a camera is a “photograph” for purposes of section 827.071(5)’s prohibition of knowingly possessing a photograph that includes sexual conduct by a child. Said the Schneider court:

Webster’s defines the term photograph as “a picture or likeness obtained by photography” with the root word photography defined as “the art or process of producing images on a sensitized surface (as a film) by the action of radiant energy and esp. light.” Merriam Webster’s Collegiate Dictionary 857 (10th ed. 1993)(emphasis added). Hence, by definition, a photograph is the exposure of the film at the time the picture is snapped. A hard copy of the photograph is a print and the developed film would be a negative.

Schneider, 700 So.2d at 1240.

That is an absurd proposition: the fact that cows eat corn does not mean that corn qualifies as hamburger. It is just as absurd to suggest that a single step in the photographic process, the casting of reflected light on chemical-coated celluloid, constitutes what is commonly understood to be a photograph. Again, penal statutes must be written in sufficiently definite language, “when measured by common understanding and practice,” to apprise persons of ordinary intelligence of what conduct would subject them to criminal punishment. Perkins, 576 So.2d at 1312. Treating undeveloped film as a “photograph” violates that principle.

Be that as it may, even if the Schneider court’s strained interpretation of the word “photograph” were accurate, the State’s reliance on it would be misplaced for two reasons. For one thing, the reclassified offense hinges on the accused’s possession of ten or more prohibited images when he commits the underlying offense. If Jen-rette-Smith committed the offense simply by tripping the shutter of his camera, and if he possessed photographs simply by possessing exposed film, he could not have possessed ten such photographs when he took the first ten shots; when taking the tenth shot he only had nine exposures in the camera. In other words, no more than four of the fourteen counts for which Jen-rette-Smith was convicted could be reclassified as first-degree felonies. Thus it was error for the trial court to reclassify all fourteen of them, and it is error for this court to affirm those reclassifications.

The other reason that the State is mistaken to rely on the Schneider court’s broad definition of “photograph” is that the reclassification statute does not employ that term. Rather, the statute reclassifies child pornography offenses based on the offender’s possession of ten or more “images of any form of child pornography.” § 775.0847(2)(a) (emphasis added).

An image is “a physical likeness or representation of a person, animal, or thing, photographed, painted, sculptured, or otherwise made visible.” Random House Dictionary 955. Exposed but undeveloped film, as such, is not an image; it bears no likeness to nor makes a visual representation of any subject. It cannot because the mere exposure of the film to light — or rather the exposure of the silver halide crystals suspended in the film’s emulsion layer — induces only one of several chemical actions that must occur in order to transform the film into an image. Although exposed silver halide crystals can be made to reduce to particles of metallic silver that form an image during development, the exposure itself produces no detectable change. See generally The Negative, The Ansel Adams Photography Series 2, ch. 2, “Light and Film” (Ansel Adams 1981). Only when all of the necessary chemical actions have been made to occur-when the film is “processed” or “developed” — is the film transformed into a likeness or visual representation of a subject, i.e., an image. This image may be “positive,” in the case of slide film, or it may be “negative,” from which a paper print may be made. Id.

Thus, regardless of whether the undeveloped film in Jenrette-Smith’s camera can be said to have contained photographs, as maintained by the State, it did not contain images. The film simply could not produce images until it was processed. The majority’s assertion that it is immaterial that “chemical processes were required to render those images visible to the naked eye” disregards the meaning of the term “image” in common parlance and, thus, violates the statutory rule of lenity.

The possession of the requisite number of prohibited images is a necessary element of the reclassified first-degree felony of promoting a sexual performance by a child. See Grinage v. State, 641 So.2d 1362, 1365 (Fla. 5th DCA 1994) (holding that statute reclassifying attempted murder to life felony when victim is a law enforcement officer created new substantive offense, of which knowledge of victim’s status as officer was a necessary element), approved by Thompson v. State, 695 So.2d 691 (Fla.1997); Green v. State, 18 So.3d 656, 659 n. 4 (Fla. 2d DCA 2009) (noting that trial court fundamentally erred by reclassifying the level of offense when evidence did not establish necessary element). A defendant’s conviction of an offense when the evidence failed to prove that the offense occurred is fundamental error. F.B. v. State, 852 So.2d 226, 230 (Fla.2003); Rodriguez v. State, 964 So.2d 833, 836 n. 1 (Fla. 2d DCA 2007); Green, 18 So.3d 656.

IV. CONCLUSION

The majority’s interpretation of the statutes at issue here dispenses with essential elements necessary to convict under the promoting-a-performance statute or to reclassify offenses under the reclassification statute. Ignoring those elements violates the clear legislative direction that criminal statutes must be strictly construed and interpreted most favorably to defendants. Further, it disregards supreme court decisions holding that the legislative directive is binding on the courts, something this court is powerless to do. See Hoffman v. Jones, 280 So.2d 431, 433-34 (Fla.1973); Roberts v. State, 199 So.2d 340, 342 (Fla. 2d DCA 1967). For these reasons, I dissent.

      . The provisions of section 827.071 have been renumbered by chapter 2011-220, section 15, Laws of Florida, effective October 11, 2011.

      . The majority’s assertion that Jenrette-Smith was the one who placed the photographs under the mattress is wholly unsupported by the evidence at trial.

      . The majority’s reference to "M.S.’s testimony that [Jenrette-Smith] kept the photographs 'to himself ” is misleading because it lifts a snippet of testimony and twists it entirely out of its context. M.S. was cross-examined about the fact that the photographs were never shown to anyone. Thus, she agreed that “Mr. Jenrette, to your knowledge, never put those on the internet,” and that ”[h]e never had a big party at the house and invited people over to look at them, put them on a big screen.” Then: "In fact, he kind of kept them to himself, right?” "Yes, sir.” This proof that the photographs were not exhibited before an audience fell well shy of demonstrating that Jenrette-Smith had "personal charge of or exercise[d] the right of ownership, management, or control over” the photographs. Fla. Std. Jury Instr. (Crim.) 25.7.

      . As observed on the research and development webpage of the Eastman Kodak Company. “[t]he silver halide emulsion literally 'sets the scene' for the subsequent complex chemical processes that lead to the formation of a colorful image.” http://www.kodak.com/US/ en/c orp/researchDevelopment/whatWe-Do/technology/ chemistiy/silver.shtml (last visited May 3, 2013).


source: Caselaw Access Project

author: PALMER, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. D.C., Appellee.
    No. 5D11-3311.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellant.
    G. Baron Coleman, of Hubbard Coleman P.C., Montgomery, for Appellee.
   PALMER, J.

The State appeals the trial court’s order dismissing the information filed against D.C. (defendant). Determining that the information sufficiently alleges unlawful sexual intercourse by a person knowingly infected with the human immunodeficiency virus (HIV), we reverse.

The defendant was charged with one count of unlawful sexual intercourse by a person knowingly infected with HIV, as prohibited by sections 384.24(2) and 384.34(5), Florida Statutes (2008). The defendant filed a motion to dismiss the information, contending that sexual intercourse, as that term is used in section 384.24(2), takes place only when the female sex organ is penetrated by the male sex organ and, therefore, the statute did not apply to the defendant’s alleged conduct, which involved homosexual oral and anal sex. After considering the argument of counsel, the trial court granted the motion and entered a dismissal order.

The State contends that dismissal was not warranted in this case. We agree.

The defendant was charged with violating section 384.24(2), which reads:

384.24. Unlawful acts
(2) It is unlawful for any person who has human immunodeficiency virus infection, when such person knows he or she is infected with this disease and when such person has been informed that he or she may communicate this disease to another person through sexual intercourse, to have sexual intercourse with any other person, unless such other person has been informed of the presence of the sexually transmissible disease and has consented to the sexual intercourse.

(Emphasis added.) The only question raised in this appeal is what the term sexual intercourse means as used in this statute, since the term is not defined in the statute or anywhere else in chapter 384. Both parties maintain that the Legislature’s intent concerning the meaning of the term sexual intercourse is clear from the unambiguous language of the statute and that the statute must be given its plain and obvious meaning.

Legislative intent is the polestar that guides statutory interpretation. Bautista v. State, 863 So.2d 1180, 1185 (Fla.2003). To discern legislative intent, courts first look to the language of the statute, because legislative intent is determined primarily from the statute’s text. Anderson v. State, 87 So.3d 774, 777 (Fla.2012).

If statutory language 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)).

Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla.2013). See also Paul v. State, 112 So.3d 1188, 2013 WL 1457839 (Fla. Apr. 11, 2013); Hickman v. Milsap, 106 So.3d 513 (Fla. 5th DCA 2013). Courts may determine the plain and obvious meaning of a statute’s text by referring to dictionaries. W. Fla. Reg’l. Med. Ctr., Inc. v. See, 79 So.3d 1, 9 (Fla.2012); see State v. Mitro, 700 So.2d 643, 645 (Fla.1997); Green v. State, 604 So.2d 471, 473 (Fla.1992).

Webster’s Third New International Dictionary defines sexual intercourse as including heterosexual vaginal intercourse as well as “intercourse involving genital contact between individuals other than penetration of the vagina by the penis.” Webster’s Third New International Dictionary Unabridged 2082 (1976). Similarly, Merriam-Webster’s Collegiate Dictionary defines sexual intercourse as including vaginal intercourse and “intercourse (as anal or oral intercourse) that does not involve penetration of the vagina by the penis.” Merriam-Webster’s Collegiate Dictionary 1141 (11th ed. 2012). The American Heritage Dictionary defines sexual intercourse as including “sexual activity that includes insertion of the penis into the anus or mouth.” The American Heritage Dictionary of the English Language 1606 (5th ed. 2011). The World Book Dictionary defines the term as “the uniting or joining of sexual organs.” World Book Dictionary 1909 (2011). Notably, our research did not disclose any dictionary definition that limited sexual intercourse to heterosexual vaginal intercourse, and the additional online dictionaries cited by the defendant do not so limit the definition. See http://lexic.us/definition-of/sexual_ intercourse (defining sexual intercourse as sexual interaction, usually involving genital and/or anal and/or oral penetration, between at least two organisms); http:// dictionary.reference.com/browse/sexual-l-intercourse (defining sexual intercourse as including vaginal intercourse and sexual union between humans involving genital contact other then vaginal penetration by the penis). As such, we conclude that the plain and ordinary meaning of the term sexual intercourse, as used in section 384.24(2), includes vaginal, anal, and oral intercourse between persons, regardless of their gender.

In so ruling, we reject the defendant’s contention that the statute’s plain and ordinary meaning is limited to heterosexual vaginal intercourse. Such an interpretation would lead to “a result clearly contrary to legislative intent.” State v. Burns, 875 So.2d 408, 410 (Fla.2004).

In Deason v. Florida Department of Corrections, 705 So.2d 1374, 1375 (Fla.1998), our Supreme Court explained that

the primary and overriding consideration in statutory interpretation is that a statute should be construed and applied so as to give effect to the evident intent of the legislature regardless of whether such construction varies from the statute’s literal meaning. In other words, criminal statutes are not to be so strictly construed as to emasculate the statute and defeat the obvious intention of the legislature.

Section 384.24(2) falls within chapter 384, which is entitled the Control of Sexually Transmissible Disease Act. § 384.21, Fla. Stat. (2008). Section 384.22 sets forth the Legislature’s intent in enacting chapter 384:

384.22. Findings; intent
The Legislature finds and declares that sexually transmissible diseases constitute a serious and sometimes fatal threat to the public and individual health and welfare of the people of the state and to visitors to the state. The Legislature finds that the incidence of sexually transmissible diseases is rising at an alarming rate and that these diseases result in significant social, health, and economic costs, including infant and maternal mortality, temporary and lifelong disability, and premature death.... The Legislature finds that medical knowledge and information about sexually transmissible diseases are rapidly changing. The Legislature intends to provide a program that is sufficiently flexible to meet emerging needs, deals efficiently and effectively with reducing the incidence of sexually transmissible diseases, and provides patients with a secure knowledge that information they provide will remain private and confidential.

Thus, the Legislature stated that its purpose in enacting chapter 384 was to establish a flexible framework within which State officials can address the rapidly changing medical knowledge about sexually transmissible diseases, in an effort to efficiently and effectively reduce the incidence of such diseases in Florida.

The portion of the Act at issue here, section 384.24(2), addresses the transmission of HIV through sexual contact. The Centers for Disease Control and Prevention explains that HIV can be transmitted through anal, vaginal, and to a lesser degree, oral sex:

In the United States, HIV is most commonly transmitted through specific sexual behaviors (anal or vaginal sex) or sharing needles with an infected person. It is less common for HIV to be transmitted through oral sex or for an HIV-infected woman to pass the virus to her baby before or during childbirth or after birth through breastfeeding or by pre-chewing food for her infant.

http://www.cdc.gov/hiv/resources/qa/ transmission.htm. See also www.aids.org/ topics/aids-faqs/how-is-hiv-transmitted; http://www.mayoclinic.com/health/hiv-aids/ DS00005/DSECTION=causes. Thus, the defendant’s interpretation of the statute as being limited to heterosexual vaginal sex runs counter to the Legislature’s intent to efficiently and effectively reduce the incidence of sexually transmitted diseases in Florida.

In dismissing the information, the trial court cited L.A.P. v. State, 62 So.3d 693 (Fla. 2d DCA 2011). In that case, the defendant contended that section 384.24(2) requires proof of sexual intercourse between a man and a woman, and thus, the statute did not apply to the homosexual sex acts she was charged with committing. The Second District agreed and reversed her judgment and sentence. We disagree with the conclusion reached by the Second District and certify conflict with L.A.P.

Accordingly, the trial court’s dismissal order is reversed, and this matter is remanded for further proceedings.

REVERSED and REMANDED; CONFLICT CERTIFIED.

GRIFFIN and LAWSON, JJ„ concur.

      . Although the defendant invites the court to apply rales of statutory construction by citing definitions found in unrelated chapters of the Florida statutes (an incest statute and a paternity statute) and in Williams v. State, 92 Fla. 125, 109 So. 305 (1926), we reject this invitation because application of rules of statutory construction is not appropriate when interpreting an unambiguous term in a statute. See Raymond James Fin. Servs., Inc. v. Phillips, 110 So.3d 908, 910 (Fla. 2d DCA 2011) (explaining that, if the language of a statute is ambiguous and lacking a statutory definition, then courts must use the rales of statutory construction to resolve the ambiguity, including resorting to case law or other statutory provisions which define the term) quashed on other grounds, 38 Fla. L. Weekly S325 (Fla. May 16, 2013); T.M.H. v. D.M.T., 79 So.3d 787, 791 (Fla. 5th DCA 2011) (recognizing that reliance on definitions found in case law constitutes application of a rale of statutory construction).

      . The trial court properly followed LAP. because it was bound to apply the only case law in Florida on this issue. State v. Washington, 114 So.3d 182, 2012 WL 2400879 (Fla. 3d DCA June 27, 2012).


author: PER CURIAM.

text:
    Jerry Antone TYSON, Petitioner, v. STATE of Florida, Respondent.
    No. 5D13-1646.
    District Court of Appeal of Florida, Fifth District.
    May 31, 2013.

      Robert Wesley, Public Defender, and Brice Aikens, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petitioner, Jerry Antone Tyson, seeks certiorari review of an order permitting the State to subpoena Tyson’s medical records. Tyson contends that the order departed from the essential requirements of law, as his records have no relevance to any issue in the prosecution below. We agree and quash the trial court’s order.

Tyson was arrested and charged by indictment for first-degree felony murder and robbery with a deadly weapon based upon a botched robbery and stabbing death of a fifty-two-year-old disabled man at a McDonald’s restaurant. Tyson was previously convicted of manslaughter and had a long history of mental illness. The State sought to subpoena his medical records — some of which are over seventeen years old — from various entities including the Orange and Osceola County jails and the Florida State Hospital in Chattahoochee. Tyson objected, arguing his medical records were wholly irrelevant to the ongoing criminal investigation because he was not participating in discovery nor was he seeking a competency determination or asserting an insanity defense. The State contends that it is seeking the death penalty and that the medical records might reveal prior bad acts that may constitute Williams rule evidence.

Certiorari is the appropriate vehicle to review an interlocutory order requiring the production of confidential medical records. Hunter v. State, 639 So.2d 72 (Fla. 5th DCA 1994); see also State v. Isaac, 696 So.2d 813 (Fla. 2d DCA 1997). Before the State can employ its investigative subpoena power and compel the disclosure of medical records without the consent of the patient, the State “has the obligation and the burden to show the relevancy of the records requested.” Hunter, 639 So.2d at 74. Relevant evidence is that which tends to prove or disprove a material fact. Id. (citing Charles W. Ehrhardt, Florida Evidence § 90.401 (1992 ed.)). The State’s burden arises from Tyson’s constitutional right to privacy in his medical information, which requires the State to demonstrate a compelling interest in the disclosure. See Cerroni v. State, 823 So.2d 150, 151-52 (Fla. 5th DCA 2002); see also State v. Rivers, 787 So.2d 952 (Fla. 2d DCA 2001) (“Such [a compelling state] interest exists where there is a reasonable founded suspicion that the materials contain information relevant to an ongoing criminal investigation.”).

In the case below, the State did not present evidence to establish relevancy. As set forth by defense counsel, Tyson’s medical records do not relate to any element of the charged offense. Tyson is not engaging in any reciprocal discovery. Furthermore, the defense has not injected any mental health defense into the proceeding-Tyson is not relying on an insanity defense nor is he seeking to present mental health mitigation evidence during the penalty phase. Since there is no nexus between the criminal prosecution and Tyson’s medical records, the trial court departed from the essential requirements of law in permitting the State to subpoena all of Tyson’s medical records. To allow disclosure of non-discoverable, mental health records would cause irreparable harm from which Tyson has no adequate remedy on appeal. Ireland v. Francis, 945 So.2d 524 (Fla. 2d DCA 2006).

Accordingly, we grant the petition for certiorari and quash the order that permitted the State to subpoena Tyson’s medical records.

•GRANT PETITION, QUASH ORDER.

GRIFFIN, JACOBUS and BERGER, JJ., concur.

      . Williams v. State, 110 So.2d 654 (Fla.1959).


text:
    Steven W. HAUN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2007.
    District Court of Appeal of Florida, First District.
    May 31, 2013.
    Steven W. Haun, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., RAY and MAKAR, JJ., concur.


text:
    George ZIMMERMAN, Petitioner, v. STATE of Florida, et al., Respondents.
    No. 5D13-1233.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2013.
    Mark M. O’Mara, of O’Mara Law Group, and Donald R. West, of Don West Law Group, P.A., Orlando, for Petitioner.
    Pamela Jo Bondi, Tallahassee, Attorney General, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent, State of Florida.
    Bruce B. Blackwell, of King, Blackwell, Zehnder & Wermuth, P.A., and Shayan H. Modarres, of The Modarres Law Firm, Orlando, for Respondent, Benjamin L. Crump, Esq.
   PER CURIAM.

Petitioner, George Zimmerman (“Zimmerman”), seeks certiorari review of the trial court’s order denying his request to take the deposition of attorney Benjamin L. Crump. We conclude that Zimmerman was entitled to take a limited deposition of Crump to inquire as to the substance of Crump’s interview of Witness 8 and the circumstances surrounding the interview. We grant the writ because we would be unable to ascertain the degree of harm resulting from the wrongful denial of this discovery in a plenary appeal. See, e.g., Giacalone v. Helen Ellis Mem’l Hosp., 8 So.3d 1232, 1234-35 (Fla. 2d DCA 2009) (although certiorari is rarely available to review orders denying discovery because the harm can usually be remedied on appeal, relief by writ of certiorari is appropriate when “there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.”).

In this high profile case, Zimmerman was charged by information on April 11, 2012, with second degree murder. The charges arose from an incident on February 26, 2012, in which Zimmerman fatally shot Trayvon Martin. During interviews with police, Zimmerman asserted that he shot Martin in self-defense.

On March 19, 2012, Crump, an attorney retained by Martin’s family, conducted a telephone interview of Witness 8. Witness 8 is a potentially crucial witness in this ease because the individual is alleged to have been on the phone with Martin moments before his death. Crump made a recording of the interview, but the recording is incomplete and of very poor quality. Two members of the media were present with Crump at the time he conducted the telephone interview of Witness 8, and portions of the recorded interview were aired on national television the following day.

Initially, Crump agreed to submit to a deposition. However, on the date of the scheduled deposition, Crump filed a fifteen-page affidavit with the court and asked the court to accept the affidavit in lieu of being required to give a deposition. It was Crump’s position that the affidavit provided a complete accounting of the circumstances surrounding the recording of Witness 8’s interview. In response, Zimmerman asserted that the affidavit would not be an adequate substitute for deposition testimony.

Ultimately, after a hearing on Zimmerman’s motion, the trial court entered a written order denying Zimmerman’s request to depose Crump. In its order, the trial court found that Crump was “an opposing counsel” and, pursuant to the test enunciated in Shelton v. American Motors Corp., 805 F.2d 1323, 1327 (8th Cir.1986), could only be required to submit to deposition upon a showing that:

1. No means existed to obtain the desired information other than to depose opposing counsel;
2. The information sought was relevant and nonprivileged;
3. The information was crucial to preparation of the case.

See also Boughton v. Cotter Corp., 65 F.3d 823, 830 (10th Cir.1995) (deposition of an opponent’s counsel is improper where these three criteria are not met). The trial court determined that Zimmerman had failed to meet this high burden.

The trial court also found that Crump could not be compelled to disclose any information regarding his interview of Witness 8 because the information constituted protected work product obtained by Crump in his capacity as an attorney for the Martin family preparing for possible future civil litigation against Zimmerman.

We respectfully disagree with the trial court’s analysis. First, the fact that Crump represents Martin’s family does not make him “an opposing counsel.” As acknowledged by Crump in his affidavit, he was not acting as a lawyer for the State or the defendant, nor could his interview of Witness 8 be found to constitute trial preparation in the pending criminal case below.

The Shelton test was intended to protect against the ills of deposing opposing counsel in a pending case that could potentially lead to the disclosure of the attorney’s litigation strategy. Pamida, Inc. v. E.S. Originals, Inc., 281 F.3d 726, 730-31 (8th Cir.2002). Because of a belief that the discovery process was being abused, the Shelton test was erected as a barrier to protect trial attorneys from unnecessary depositions. Id. However, the Shelton test does not apply where, as in the instant case, an attorney has knowledge of facts relevant to the subject matter of the litigation and is merely advising a client with respect to a related matter:

Thus, Pamida makes clear that the three Shelton criteria apply to limit deposition questions of attorneys in only two instances: (1) when trial and/or litigation counsel are being deposed, and (2) when such questioning would expose litigation strategy in the pending case.

United States v. Philip Morris, Inc., 209 F.R.D. 13, 17 (D.D.C.2002).

Second, we also conclude that any testimony given by Crump as to the substance of his interview of Witness 8 and the surrounding circumstances thereto would not violate the work product privilege because any privilege that may have existed was waived when Crump conducted the interview in the presence of two media representatives who subsequently aired portions of the interview on national television. See Visual Scene, Inc. v. Pilkington Bros., 508 So.2d 437, 442 (Fla. 3d DCA 1987) (work product privilege waived where disclosure of information is made in manner that is “inconsistent with the maintenance of secrecy from the disclosing party’s adversary”).

The information provided by Witness 8 is relevant to the determination of whether Zimmerman is guilty of second degree murder (or a lesser included offense). Should Witness 8 testify at trial, Zimmerman is entitled to discover whether such testimony is consistent with prior statements made by Witness 8 to Crump and whether such testimony was in any way influenced by the manner in which the interview in question was conducted.

Finally, although not a basis of the trial court’s ruling, we reject any suggestion that Crump’s affidavit would serve as an adequate substitute for a deposition. See Patrick v. State, 104 So.3d 1046, 1057 (Fla.2012) (“Cross-examination is the principal means by which the believability of a witness and the truth of his testimony are tested.”)

In concluding that the trial court erred in denying Zimmerman an opportunity to depose Crump, we caution that any deposition of Crump is to be limited to inquiry of circumstances surrounding the interview of Witness 8 and the contents of such interview. Defense counsel may not inquire into Crump’s mental impressions regarding Witness 8, nor may counsel inquire as to the reasons why Crump conducted the interview in the manner in which he did. Additionally, we believe the work product privilege precludes defense counsel from making inquiry as to the reason(s) Crump attempted to locate Witness 8 and the methods employed to do so.

The deposition contemplated by our opinion should be relatively short and straight forward. We are confident that the trial judge will be able to take the steps necessary to ensure the deposition is limited to the subject areas described above.

Petition for Writ of Certiorari GRANTED.

LAWSON, EVANDER and COHEN, JJ., concur.

      . Several witnesses have been publically identified only by assigned numbers to protect their privacy due to the intense media attention this case has generated.


author: FERNANDEZ, J.

text:
    Frank LEONE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1312.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.

      Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Nicholas A. Merlin, Assistant Attorney General, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Frank Leone appeals the trial court’s order revoking his probation and claims that the written order of revocation of probation does not conform to the oral pronouncement. The State properly concedes that the probation violation order must be corrected, and we therefore reverse and remand.

Leone pled guilty to charges of burglary and grand theft. In exchange for his plea, the trial court sentenced him to ten years in state prison. The court thereafter suspended the sentence with the condition that he serve ten years of probation, with a special condition that he successfully complete a residential drug and mental health program.

In the affidavits of probation, the State alleged that Leone committed three technical violations when he: 1) failed to report to the probation office as directed, 2) changed his residence without first obtaining the consent of his probation officer (and absconding), and 3) failed to complete the residential drug and mental health treatment program. The State later added two substantive violations to the affidavits, alleging that Leone violated the law when he committed petit theft and obstruction.

The State proceeded on the technical violations at the probation violation hearing, but abandoned the substantive violations, after which the trial court imposed sentence. In its oral pronouncement, the trial court did not specifically address each allegation contained in the probation violation affidavit. The trial court simply found that Leone willfully violated his probation and imposed a sentence of ten years in state prison for each of the eases. The sentences were to run concurrently to one another, and Leone received credit for time served. Subsequently, however, in its written orders revoking Leone’s probation in both of the cases, the trial court found that Leone violated his probation because he: 1) failed to report to the probation office as directed, 2) changed his residence — absconded, 3) failed to complete residential treatment, 4) had a new arrest for petit theft, and 5) had a new arrest for obstruction.

Although there is no inconsistency between the trial court’s oral pronouncement and the order of violation of probation, the State properly concedes that because no evidence was presented as to the fourth and fifth allegations (the substantive violations of petit theft and obstruction), the order of revocation must be corrected to reflect allegations one, two and three only (the technical violations). We therefore reverse and remand for correction of the order of revocation. See Shacker v. State, 106 So.3d 36 (Fla. 3d DCA 2013); Smith v. State, 100 So.3d 253 (Fla. 3d DCA 2012).

Reversed and remanded.


text:
    WINWOOD NINE, INC., Salomon Yuken, and Rosa Yuken, Appellants, v. I.Y. ADMINISTRATIVE SERVICES, CORP., Appellee.
    No. 12-2911.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.
    Equels Law Firm and Thomas K. Equ-els and J. Stanley Chapman, Tallahassee, for appellant.
    Ervin, Kitchen & Ervin and Robert M. Ervin, Tallahassee, for appellee.
    Before CORTIÑAS and EMAS, JJ., and SCHWARTZ, Senior Judge.
   ON CONFESSION OF ERROR

PER CURIAM.

Appellants, Winwood Nine, Inc., Salo-mon Yuken, and Rosa Yuken, seek review of the trial court’s Final Judgment of Foreclosure. Based upon our independent review of the record and I.Y. Administrative Services Corp.’s proper confession of error, we reverse the trial court’s summary judgment and Final Judgment of Foreclosure and remand for further proceedings.

Reversed and remanded.


author: EMAS, J.

text:
    Emmanuel CHARLEMAGNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-2012.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.

      Before CORTINAS and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Emmanuel Charlemagne appeals the trial court’s judgment of guilt, and six-month sentence, for direct criminal contempt. Charlemagne contends that his conduct was not contumacious and, alternatively, that the trial judge failed to comply with the requirements of Florida Rule of Criminal Procedure 3.830.

We affirm without further discussion the trial court’s determination that Charlemagne engaged in contumacious conduct. However, and as the State properly concedes in its brief, the trial court failed to afford the defendant an opportunity, prior to sentencing, “to present evidence of excusing or mitigating circumstances.” See Fla. R.Crim. P. 3.830. Given the unique nature of direct criminal contempt proceedings, the trial court must scrupulously honor the requirements of rule 3.830 to safeguard a contemnor’s right to procedural due process. The failure to strictly comply with the requirements of rule 3.830 constitutes fundamental error. Woodson v. State, 109 So.3d 866 (Fla. 3d DCA 2013) and cases cited therein. Because the trial court failed to provide Charlemagne an opportunity to present evidence of excusing or mitigating circumstances before adjudicating him guilty and imposing sentence, we reverse the judgment and sentence and remand for further proceedings consistent with this opinion.


text:
    RJR CHARITABLE HOLDINGS, LLC, etc., Appellant, v. SUNTRUST BANK, Appellee.
    No. 3D12-570.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.
    Roniel Rodriguez, IV., Aventura, for appellant.
    May, Meacham & Davell, P.A., Fort Lauderdale, William C. Davell, Carolyn B. Brombacher and Christopher D. Barber, for appellee.
    Before CORTINAS, LAGOA and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Rodriguez-Faro v. M. Escarda Contractor, Inc., 69 So.3d 1097 (Fla. 3d DCA 2011).


author: MAY, C.J.

text:
    STATE of Florida, Appellant, v. Brian JEAN, Appellee.
    No. 4D12-1979.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, C.J.

The State appeals the defendant’s sentence where the trial court withheld adjudication on the defendant’s third felony drug charge. The defendant concedes error. We reverse.

The State charged the defendant with possession of cocaine. Prior to this charge, the defendant had been sentenced for possession of cocaine and delivery of cocaine. In each instance, adjudication had been withheld. No one disputes these facts.

At sentencing, the defense again requested the trial court to withhold adjudication because the defendant was successfully participating in drug court, remorseful, and young. The State objected and argued that section 775.08485(l)(c), Florida Statutes (2012), prohibited the trial court from withholding adjudication a third time. The trial court nevertheless withheld adjudication.

Section 775.08435(l)(c) prohibits a court from withholding adjudication on a third-degree felony offense if the defendant has two or more prior withholds for a felony that did not arise from the same transaction as the current charge. We enforced that restriction in State v. Cook, 14 So.3d 1155, 1156 (Fla. 4th DCA 2009).

Here, the trial court withheld adjudication because the defendant “has strong family support. He’s a young man. He’s done good work. He’s suffered enough. And, let’s see. It’s the Court’s opinion it doesn’t require a lengthy prison sentence, the way it was drafted.” Despite the court’s findings, section 775.08435(l)(c) prohibits the trial court from withholding adjudication in this circumstance. We therefore reverse the sentence and remand the case to the trial court to re-sentence the defendant in accord with section 775.08435(l)(c).

Reversed and Remanded.

GERBER and LEVINE, JJ., concur.


text:
    Ladarius Lekendric LACEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-60.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Appellant appeals his conviction and sentence for escape under section 944.40, Florida Statutes (2010), following his entry of a no contest plea to that offense. We find fundamental error on the face of the record in appellant’s conviction and sentence to four years in prison followed by five years of probation. We reverse for the trial court to provide appellant with an opportunity to withdraw his plea.

The record, including the factual basis for appellant’s plea, reflects that appellant was in the custody of the Department of Juvenile Justice, and was then brought to a hospital, where he remained under DJJ supervision. Appellant escaped from the hospital.

“The applicable escape statute depends on the location of the defendant at the time of the attempt....” State v. King, 968 So.2d 658, 658 (Fla. 4th DCA 2007). “Section 944.40 covers escape attempts by a prisoner, who is defined as someone in the custody of the [Department of Corrections] pursuant to section 944.02(6), Florida Statutes.... ” Id. In contrast, section 985.721, Florida Statutes (2010), “deals with escape attempts, as defined by section 944.40, from detention facilities for children.” Id. This section also governs escape while being lawfully transported to or from such a secure detention facility. § 985.721(3), Fla. Stat. (2010).

In this case, appellant’s escape was plainly controlled by section 985.721, Florida Statutes (2010), and therefore, appellant would be entitled to postconviction relief for pleading to the wrong offense. See Hodges v. State, 107 So.3d 538, 540 (Fla. 2d DCA 2013) (“When a movant alleges that the trial court failed to determine that there was a factual basis for his plea and that he is innocent of the offense to which he pleaded or that he pleaded to the wrong offense, the movant sets forth a facially sufficient claim for postconviction relief.”). Florida courts have remanded to allow an opportunity for withdrawal of a plea in the limited circumstance where ineffective assistance of counsel appears on the face of the record and affirming without prejudice to the filing of a motion for postconviction relief under rule 3.850 would be contrary to the interests of judicial economy. See Taylor v. State, 919 So.2d 669, 670-71 (Fla. 2d DCA 2006); Barber v. State, 901 So.2d 364, 366 (Fla. 5th DCA 2005). See also Quillen v. State, 73 So.3d 890, 893 (Fla. 4th DCA 2011) (“Even if [defendant] had not filed a motion to withdraw plea, defense counsel’s ineffective assistance, which the record reflects on its face, would still have compelled us to reverse to give [defendant] an opportunity to withdraw his plea.”). We find the present circumstances, where counsel’s failure to recognize this issue resulted in a fundamentally erroneous plea to the incorrect offense, to be sufficiently analogous to warrant the same relief.

Further, both prongs of Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984) are satisfied here. Appellant was prejudiced by counsel’s performance as he could not lawfully be sentenced to four years in prison followed by five years’ probation for the third-degree felony of escape from a secure detention facility. See Danzy v. State, 603 So.2d 1320, 1322-23 (Fla. 1st DCA 1992) (finding fundamental error in illegal sentence to six years’ imprisonment where defendant escaped from juvenile detention center); Trueblood v. State, 610 So.2d 12, 13-14 (Fla. 1st DCA 1992).

As a result, we reverse and remand with directions to the trial court to afford appellant the opportunity to withdraw his plea.

Reversed and remanded for appellant to be provided with an opportunity to withdraw his plea.

WARNER, GROSS and LEVINE, JJ., concur.

      . A conviction under section 944.40, Florida Statutes (2010), is a second-degree felony, punishable by a term of imprisonment not exceeding fifteen years, while a conviction under section 985.721, Florida Statutes (2010) is a third-degree felony, punishable by an imprisonment term not exceeding five years. § 775.082(3)(c), (d), Fla. Stat. (2010).


text:
    Jammora Ishmea SIMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3082.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant appeals his convictions and sentence to life in prison for burglary of an occupied structure, robbery, burglary of a conveyance, and grand theft of a motor vehicle, all of which were committed while appellant was armed with a firearm. Appellant claims the trial court should have granted his motion for mistrial and to strike the jury panel because of comments made by the judge during voir dire. He also claims the trial court should have suppressed an out-of-court identification made by the victim as impermissibly suggestive. We find these issues to be without merit and, as such, we affirm.

Affirmed.

MAY, C.J., GERBER and LEVINE, JJ., concur.


text:
    Maurice Derrias BURNEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-118.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Carey Haughwout, Public Defender, and Karen E. Ehrlich, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Senior Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals from the circuit court’s revocation of his probation. He argues that the court’s written order of revocation of probation is not consistent with the court’s oral pronouncement. See Ortiz v. State, 2 So.3d 318, 319 (Fla. 4th DCA 2008) (“A written order of revocation must conform to the trial court’s oral pronouncement.”) (citation omitted).

However, as the state points out, the defendant did not preserve this argument with either a contemporaneous objection or a Florida Rule of Criminal Procedure 3.800 motion. See Evans v. State, 895 So.2d 1292, 1292-93 (Fla. 1st DCA 2005) (defendant did not preserve his argument regarding the discrepancy between the trial court’s oral pronouncement of sentence, written sentence, and order on probation with either a contemporaneous objection or a rule 3.800 motion).

Based on the foregoing, we affirm the circuit court’s revocation of probation, but without prejudice to the defendant’s ability to file a rule 3.800 motion in the circuit court raising this argument.

Affirmed without prejudice.

MAY, C.J., GERBER and LEVINE, JJ., concur.


text:
    Cari McCORMACK, Individually and as Beneficiary of the Cari McCormack S Trust, Petitioner, v. Judith RUSSELL, Individually and as Trustee of the Cari McCormack S Trust, Director of Peanuts Holdings, LLLP, f/k/a Peanuts Holdings, Ltd., a Florida limited liability partnership, and Director of Carmac Holdings, Inc., a Florida corporation, Respondent.
    No. 4D13-1452.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Andrew W. Abel and Michael J. Schlesinger of Schlesinger & Associates, P.A., Miami, for petitioner.
    No appearance for respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on the merits. Petitioner seeks interlocutory review of the trial court’s order denying her motion to disqualify respondent’s law firm due to prior representation of petitioner in another matter by a recently-hired attorney for that firm; petitioner claimed that legal confidences were provided by this attorney to her new employer, who represents the opposing party to this lawsuit. While certiorari review is appropriate to consider orders denying a motion to disqualify counsel due to alleged conflicts of interest, Manning v. Cooper, 981 So.2d 668, 670 (Fla. 4th DCA 2008), the trial court’s order here is supported by competent, substantial evidence. Thus, petitioner cannot show that the order departs from the essential requirements of law, since the attorney adamantly denied receiving any confidences from petitioner, who testified to the contrary at an eviden-tiary hearing below. Nissan Motor Corp. in U.S.A. v. Orozco, 595 So.2d 240, 243-44 (Fla. 4th DCA 1992); see also Scott v. Higginbotham, 834 So.2d 221, 223-24 (Fla. 2d DCA 2002).

Petition denied.

STEVENSON, GROSS and CIKLIN, JJ., concur.


text:
    LIFESTYLES & HEALTHCARE, LTD, World Ministry Outreach, Inc., Okeechobee Healthcare Facility, LLC, Seniors “R” Able, Inc., and Faye A. Haverlock, Appellants, v. The ESTATE OF Lorraine M. MANNING, by and through Beth Ann RICHARDSON, personal representative, Appellee.
    No. 4D12-3140.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.

      Mark D. Tinker and William D. Horgan of Banker Lopez Gassier, P.A., St. Peters-burg, for appellant.
    Isaac R. Ruiz-Carus of Wilkes & McHugh, P.A., Tampa, for appellee.
    GROSS, CIKLIN, JJ., and ROSENBERG, ROBIN, Associate Judge, concur.
   PER CURIAM.

Affirmed. See Shotts v. OP Winter Haven, Inc., 86 So.3d 456 (Fla.2011); Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296, 297 (Fla. 4th DCA 2005).


text:
    Bradley E. KING and Robin King, Appellants, v. NATIONAL ALARM SYSTEM, INC., and Michael J. Griffin, Appellees.
    No. 4D12-3163.
    District Court of Appeal of Florida, Fourth District.
    June 5, 2013.
    Bradley E. King and Robin King, Davie, pro se.
    Warren Kwavnick and Blair M. Dickert of Cooney Trybus Kwavnick Peets, Fort Lauderdale, for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


author: SUAREZ, J.

text:
    Henry HOPE and Florence Cunningham, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D11-3147.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.

      Alvarez, Carbonell, Feltman, Jimenez & Gomez and Paul Feltman, Coral Gables, for appellants.
    Methe & Rockenbach and David A. Noel and Kara Rockenbach, West Palm Beach, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

Henry Hope appeals from a summary judgment granted in favor of Citizens Property Insurance Corporation [“Citizens”]. We affirm.

Mr. Hope’s property is insured by Citizens. In October, 2005, the property suffered damage from Hurricane Wilma. Mr. Hope did not immediately file a claim with Citizens. Over the next four years, he made various repairs to the property by himself, in an effort to mitigate the damage. When the damage remained unresolved, Mr. Hope hired an independent public adjuster to estimate the damages, and filed a claim with Citizens in 2009. After investigating the claim, Citizens denied coverage for failure to give prompt notice of the hurricane damage, stating that because Mr. Hope waited nearly four years to make a claim, it was unable to attribute any damage to a covered loss. Mr. Hope filed a complaint against Citizens for breach of contract.

In its amended motion for summary judgment, Citizens argued that not only had Mr. Hope failed to fulfill his post-loss obligation under the policy of insurance to promptly give notice to the insurer of the hurricane loss, but also that the patchy repairs over the years since the hurricane had prejudiced Citizens’ ability to properly evaluate the damage alleged to have been caused by the storm. There was no question that Mr. Hope did not notify Citizens of the hurricane loss until approximately four years after the loss occurred. His response on summary judgment stated that the record sufficiently overcame the presumption of prejudice to Citizens. The transcript of the summary judgment hearing shows that the trial court based its entry of summary judgment on the insured’s failure to provide timely notice to Citizens and never reached the issue of prejudice. Our review of the trial court’s summary judgment is de novo. See Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

The trial court relied solely on Kroener v. Florida Insurance Guaranty Ass’n, 63 So.3d 914 (Fla. 4th DCA 2011), in granting summary judgment in favor of Citizens. In Kroener, the court held that, as a matter of law, the Kroeners’ notice of claim to the insurer more than two years and two months after the loss was not prompt notice, violated the policy and, alone, was sufficient to bar the claim without addressing the question of prejudice to the insurer. Following the holding in Kroener, the trial court reluctantly concluded that Mr. Hope’s notice to Citizens four years after the alleged loss was, as a matter of law, a failure to comply with the insurance policy’s notice provision, and was alone sufficient to grant summary judgment for Citizens. The issue of prejudice was not addressed. The trial court cannot be faulted for its conclusion as it did not have the advantage of later cases that receded from and clarified the Kroener holding. Those cases followed Bankers Insurance Co. v. Macias, 475 So.2d 1216 (Fla.1985), which provided that, “[i]f the insured breaches the notice provision, prejudice to the insurer will be presumed, but may be rebutted by a showing that the insurer has not been prejudiced by the lack of notice.” Id. at 1218; accord Stark v. State Farm Fla. Ins. Co., 95 So.3d 285 (Fla. 4th DCA 2012); Kings Bay Condo. Ass’n v. Citizens Prop. Ins. Corp., 102 So.3d 732, 733 (Fla. 4th DCA 2012); Kramer v. State Farm Fla. Ins. Co., 95 So.3d 303, 306 (Fla. 4th DCA 2012); Soronson v. State Farm Fla. Ins. Co., 96 So.3d 949, 952-53 (Fla. 4th DCA 2012). Once the presumption of prejudice is raised in favor of the insurer, the burden shifts to the insured to show that the insurer was not prejudiced by untimely pre-suit notice of loss.

Although the circuit court’s reliance on Kroener was misplaced, we may nevertheless affirm the summary judgment. Under the “tipsy coachman doctrine,” we are bound to affirm the circuit court’s order if it reached the correct result, even if it reached that result for the wrong reason. See Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 644-45 (Fla.1999) (holding that, even when based on erroneous reasoning, a conclusion or decision of a trial court will generally be affirmed if the evidence or an alternative theory supports it); Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979); see also Agudo, Pineiro & Kates, P.A., v. Harbert Constr. Co., 476 So.2d 1311, 1315 (Fla. 3d DCA 1985) (“[A]s Loranger v. State Dep’t of Transp., 448 So.2d 1036, 1039 (Fla. 4th DCA 1983) makes clear, the “right for the wrong reason” appellate maxim does not apply in summary judgment proceedings where the issue was never raised in the motion for summary judgment.” (emphasis added)). Here, the issue of prejudice was raised in the summary judgment motion. Therefore, we must examine the record to determine if the evidence supports the trial court’s decision to grant summary judgment, even if for the wrong reason. There is no dispute that Mr. Hope failed to give timely notice of the loss as required by the policy. As such, there is a presumption that Citizens has been prejudiced. The question, then, is whether Mr. Hope met his burden to provide sufficient evidence to overcome the presumption of prejudice as raised in the motions for summary judgment.

On de novo review, we conclude the record does not set forth evidence sufficient to rebut the presumption of prejudice to Citizens resulting from the homeowner’s delayed notice of loss. See, e.g., Soronson, 96 So.3d at 949 (granting summary judgment, concluding that the insured failed to come forward with counterevidence sufficient to reveal a genuine issue of material facts as to whether the insurer was prejudiced by the insured’s untimely pre-suit notice); Kramer, 95 So.3d at 303 (granting summary judgment, concluding that the presumption of prejudice resulting from late notice was not rebutted by structural engineer’s affidavit stating that roof damage was equally likely to have resulted from wind damage or foot traffic). In its motion for summary judgment, Citizens presented the court with arguments on the merits of late notice and an affidavit confirming the resulting presumption of prejudice in its ability to properly adjust the claim. See Fla. R. Civ. P. 1.510. The burden then shifted to the insured to show how Citizens was not prejudiced by the late notice. Mr. Hope addressed the issue of prejudice in his response to the motion for summary judgment, and attached the homeowner’s affidavit, a roofer’s repair estimate and the public claims adjuster’s report listing various repairs necessary to the roof and house structure. That evidence, however, is merely conclusory and fails to rebut the presumption of prejudice to Citizens where the passage of time has rendered Citizens unable to determine exactly what current damage is directly attributable to Hurricane Wilma, and thus a covered loss. After a thorough examination of the record before us, we determine that the trial court arrived at the correct conclusion, albeit for the wrong reason, and affirm.

Affirmed.

      . Appellant Florence Cunningham passed away in 2011 but remains on the style of the case.


text:
    A.M., Jr., Appellant, v. STATE of Florida, DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D13-0086.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    A.M., Jr., pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Drew Parker, General Counsel, Department of Children and Families, Tallahassee, and Ward L. Metzger, Appellate Counsel, Jacksonville, for Appellee.
   PER CURIAM.

DISMISSED as moot.

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


text:
    COASTAL CONSTRUCTION OF MONROE, INC., d/b/a Coastal Construction Company, Appellant, v. BANKUNITED, Appellee.
    No. 3D12-2394.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.
    Hershoff, Lupino & Yagel and James S. Lupino and Jessica L. Rothenberg, Taver-nier, for appellant.
    Rice Pugatch Robinson & Schiller and Lisa M. Schiller and Riley W. Cirulnick, Fort Lauderdale, for appellee.
    Before WELLS, C.J., and SHEPHERD and LAGOA, JJ.
   PER CURIAM.

Affirmed. Benson v. JPMorgan Chase Bank, N.A., 673 F.3d 1207 (9th Cir.2012).