author: CASANUEVA, Judge.

text:
    Marvin N. FRAZIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5570.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.

      Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Appel-lee.
   CASANUEVA, Judge.

Marvin N. Frazier appeals his judgment and sentence for grand theft following a bench trial. The charge arose out of the nonperformance of a contract to remodel a duplex owned by Mohamed Nazir. We reverse because the State did not prove the element of intent and was improperly allowed to rely on the statutory inference of intent provided in section 489.126, Florida Statutes (2008).

FACTS

Mr. Nazir entered into a contract with Mr. Frazier, in which Mr. Frazier agreed to perform work on Mr. Nazir’s duplex in exchange for $20,000. They signed the contract on October 21, 2008, and the following day Mr. Nazir paid $8,000 to Mr. Frazier as a down payment. Mr. Nazir testified that Mr. Frazier performed work on the property on October 23, 24, and 25, but claimed that Mr. Frazier stopped working on the property after that time.

William Nolen, a building official for the City of Haines City (“the City”), testified that on October 22, Mr. Frazier’s company submitted an application for a permit to make repairs to the property. However, the City did not issue the permit because the application did not include all of the work required to bring the duplex in compliance with the City’s building code.

Douglas Tertenning, a building inspector for the City, observed the work being done at Mr. Nazir’s property and concluded that a permit was required to perform the work. There was no permit posted on the property, and he therefore placed a stop work order on the property.

Mr. Frazier asked Kenneth Ledoux, an architectural designer, to complete plans for repairs at the duplex. Mr. Frazier showed him pictures of the two-story structure and first asked him to complete drawings for an exterior stairwell. Mr. Ledoux charged about $350 for the work, and Mr. Frazier paid him around November 24, 2008. Thereafter, Mr. Frazier contacted him again and told him that the City determined that more structural work had to be done on the building.

Mr. Ledoux went to the property with Mr. Nolen, and they both agreed that it needed a large amount of structural work. Thereafter, Messrs. Nolen, Frazier, Nazir, and Ledoux met to discuss the options for the property and the difference between the cost to repair the duplex and the cost to tear it down and build a new structure. The City required that the structure be remodeled in compliance with the current building code. However, if the current structure were torn down, any new structure would have to comply with new zoning ordinances and could not be a duplex. After considering the options, Mr. Nazir decided to continue remodeling the current duplex. According to Mr. Nolen, the City required structural plans for the remodeling of the duplex before it would approve the building permit.

On December 18, Mr. Nazir gave Mr. Frazier an additional $2,000 to obtain the required structural plans for the duplex. Mr. Frazier asked Mr. Ledoux to complete a set of drawings for the remodeling of the duplex and paid him $700 as a deposit for these plans. The invoice for the plans is dated January 23, 2009. Mr. Ledoux completed plans for repairs to the existing structure, but Mr. Frazier never paid the balance due, $1,488.50, and he never picked up the plans. Within the following four to six weeks, Mr. Frazier called him and said that the owner had decided not to proceed with the project. Mr. Nazir testified that he never asked Mr. Frazier to stop working on the project.

ANALYSIS

A person commits theft when he knowingly obtains the property of another person with the intent to permanently or temporarily deprive the other person of a right to the property or a benefit from the property. § 812.014(l)(a), Fla. Stat. (2008). This includes “[obtaining property by fraud, willful misrepresentation of a future act, or false promise.” § 812.012(3)(c).

Even though a promise to perform in the future may serve as the basis of a theft, a necessary element of theft under Florida law is that the defendant must have the specific intent to commit the theft at the time of, or prior to, the commission of the act of taking.

Stramaglia v. State, 603 So.2d 536, 537-38 (Fla. 4th DCA 1992).

Generally, courts have held that broken promises of performance do not establish the requisite criminal intent to prove grand theft where the breach of performance occurs subsequent to the claimed taking. This court considered an analogous factual situation in Crawford v. State, 453 So.2d 1139 (Fla. 2d DCA 1984). In Crawford, the appellant agreed to repair the victim’s roof and received $240 to purchase materials for the repair. Id. at 1140. The next day, the appellant and his helper arrived at the home with only a bucket of tar. The victim became upset because the appellant had not purchased the other materials and fired him. Although the appellant agreed to return the victim’s money, he failed to do so. This court held that the appellant was improperly convicted of theft because the evidence was insufficient to show that he “did not intend to perform the contract when he entered into it.” Id. at 1142. It concluded that the appellant’s “showing up with a helper the day after he received a down payment negate[d] the criminal intent of theft by larceny or false pretenses” and noted that “this appears to be a civil rather than a criminal issue.” Id.

The First and Fourth Districts recently addressed similar cases involving the nonperformance of construction contracts. In each instance, the court concluded that the evidence adduced at trial was insufficient to prove the crime of theft. In Segal v. State, 98 So.3d 739 (Fla. 4th DCA 2012), the criminal charge arose from the nonperformance of a contract to construct kitchen cabinets. The Fourth District concluded that, like Crawford, the State “failed to prove felonious intent.” 98 So.3d at 744.

Its evidence was .not inconsistent with appellant’s hypothesis that this was simply a contractual undertaking which he failed to perform — a civil matter. The appellant had a legitimate business constructing cabinetry. He advertised for business. The homeowner saw his work space and his equipment. They entered into a written contract to construct the kitchen using thirty-inch cabinets after considerable negotiation. After the signing of the contract, even the state’s evidence showed that materials were purchased at Lowe’s, and that the appellant made several rental payments on his work space where the cabinets would be constructed, essential to the performance of the contract. The appellant also came out after the signing of the contract to measure for the cabinets. Thus, he did make efforts to perform the contract. The state presented no evidence of any willful misrepresentations to induce the homeowner to sign the contract.

Id. at 744-45.

Similarly, Huggins v. State, - So.3d -, 2012 WL 4465235, 37 Fla. L. Weekly D2292 (Fla. 1st DCA Sept.28, 2012), involved the failure to complete work on a roof. There, the First District concluded that “the State failed to present any evidence to establish that [a]ppellant possessed the requisite intent to commit grand theft when he accepted the two checks from the homeowners.” Id. at —-—, D2293. The court noted that the appellant had purchased roofing materials and had begun working on the roof. Id. Similar to the present case, a county inspector issued a cease and desist order after determining that no permits had been obtained for the roof repairs. Id. Like Crawford and Segal, the First District concluded that the appellant’s motion for judgment of acquittal should have been granted. Id. at —-—, D2294; see also Yerrick v. State, 979 So.2d 1228, 1231 (Fla. 4th DCA 2008) (holding that evidence did not establish that appellant had criminal intent at time he took money as a deposit to repair fence where he removed old fence but never installed new fence and eventually stopped returning victim’s phone calls).

As in these cases, we conclude that the State’s evidence of intent here was legally insufficient. The contract between Mr. Nazir and Mr. Frazier was signed on October 21, 2008, and Mr. Frazier paid $8,000 as a down payment. All of the witnesses who visited the property confirmed that Mr. Frazier performed work on the duplex. Mr. Frazier also applied for a building permit on October 22, but the permit was denied because the proposed repairs did not include everything the duplex required to bring it in compliance with the City’s building code. Thereafter, the City placed a stop work order on the property.

In November 2008, Mr. Frazier met with Mr. Nazir, Mr. Ledoux, and Mr. No-len to discuss the options for the duplex. In addition, Mr. Frazier paid Mr. Ledoux $350 to complete one set of plans for repairs at the duplex, and after Mr. Frazier received the second check from Mr. Nazir, he gave Mr. Ledoux a deposit to complete a second set of plans for the duplex. At trial, Mr. Frazier also presented testimony that he paid laborers to complete work at the property. Therefore, it was clear that after Mr., Frazier received both checks from Mr. Nazir, he continued to take steps necessary to remodel the duplex. This evidence was therefore insufficient to establish that he had the specific intent to commit a theft at the time he received the checks. See Crawford, 453 So.2d at 1142.

In lieu of evidence of intent, the State contends that the inference of intent to defraud afforded by section 489.126(3)(b) precluded the entry of a judgment of acquittal. To be entitled to the statutory inference, the State must establish several factual predicates. One predicate is the “mailing of notification.” § 489.126(3)(b)(3). The statute requires that such notification be mailed by

certified letter, return receipt requested, mailed to the address of the contractor as listed in the written contracting agreement. The letter must indicate that the contractor has failed to perform any work for a 60-day period, that the failure to perform the work was not the result of the owner’s termination of the contract or a material breach of the contract by the owner, and that the contractor must recommence construction within 30 days after the date of mailing of the letter.

§ 489.126(3)(c).

Although Mr. Nazir attempted to comply with the statute, it is undisputed that the notification he mailed did not use “the address of the contractor as listed in the written contracting agreement.” The address on the written contracting agreement is “117 U.S. Hwy 17-92 # 31 Haines City.” However, Mr. Nazir mailed the notification to “11745 Highway 17-92 Haines City.” Because the letter was not correctly directed to Mr. Frazier’s address, it did not comply with section 489.126(3)(c). Therefore, the State may not rely on the statute’s inference that the money was taken with the intent to defraud Mr. Nazir.

CONCLUSION

Mr. Frazier’s motion for judgment of acquittal should have been granted because the evidence was legally insufficient to establish the element of intent. We reverse Mr. Frazier’s conviction and sentence for grand theft and on remand direct that he be discharged.

CRENSHAW and SLEET, JJ„ Concur.


source: Caselaw Access Project

author: KHOUZAM, Judge. ALTENBERND, Judge, VILLANTI, Judge,

license: Public Domain

text:
    Richard R. McDADE, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5955.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.

      Christopher E. Cosden of The Wilbur Smith Law Firm, Fort Myers, for Appellant.
    . Pamela Jo Bondi, Attorney General, Tallahassee, and Christina Zuccaro, Assistant Attorney General, Tampa, for Appellee.
   KHOUZAM, Judge.

Richard R. McDade was charged with various sex crimes after his sixteen-year-old stepdaughter reported that he had been sexually abusing her since she was ten years old. She gave law enforcement two recordings that she had made of her conversations with McDade after her mother did not believe her story and her boyfriend encouraged her to obtain proof of the abuse. These incriminating recordings were presented at trial. The jury found McDade guilty of two counts of sexual battery on a child less than twelve years of age, one count of solicitation of sexual activity with a child, and two counts of sexual battery on a child by a person in familial or custodial authority. McDade appeals, arguing that portions of the victim’s boyfriend’s testimony should have been excluded as hearsay and that the recordings should have been suppressed. We affirm, but we certify a question of great public importance to the Florida Supreme Court.

I. THE FACTS

The victim in this case was born in Mexico in 1994. In 2001, she and her mother moved to Florida. Though their immigration status was a matter of dispute during the trial, the victim testified that she believed that they were illegally in the country. In 2005, the mother married McDade, who was approximately sixty years of age at the time. The mother testified that the couple never had a sexual relationship because they both had health issues. Indeed, McDade and the mother both testified that he suffered from erectile dysfunction. However, the victim alleged that he sexually abused her over a period of years, threatening that she and her mother would be returned to Mexico if she reported what he was doing.

McDade operated an ice cream truck, and the victim’s mother worked as a janitor. During the period of time when the alleged abuse occurred, the victim was typically home alone with McDade for several hours in the afternoon each school day. She testified that on one such afternoon McDade instructed her to come into his bedroom and told her to take off her clothes. He covered her face with a blanket and he penetrated her with both his finger and his penis. She was ten years old at the time. McDade allegedly continued to engage in this conduct weekly until April 2011, when she was sixteen.

Over the years, the victim claimed that she reported this abuse to several people, including her mother, a doctor, and two ministers at her church. Her mother admitted that her daughter reported this abuse to her and that she took her daughter to a doctor. The mother adamantly did not believe her daughter. When pressed about her accusations, the victim recanted on more than one occasion. Perhaps because of her retractions, no one reported her claims even though any person who has reasonable cause to suspect child abuse must report it. See § 39.201, Fla. Stat. (2012). She explained that she retracted her claims due to the fear of being sent to Mexico.

In October 2010, the victim started going out with a boy. Her mother and McDade did not like the boyfriend, and this created conflict within the family. In an effort to prevent her from sneaking out of the house, her mother and McDade made her sleep in a closet near their bedroom. She told her boyfriend that McDade was raping her, and he encouraged her to gather proof of the abuse. He loaned her his MP3 player to use as a recording device. In April 2011, with the MP3 player hidden in her shirt, she approached McDade in his bedroom on two occasions when they were alone after school. She was essentially conducting her own investigation, hoping to prompt McDade into making incriminating statements that she could secretly record as evidence of abuse.

The recordings supported the victim’s testimony that McDade would regularly ask her to have sex with him after school. On both occasions, though he did not use sexually explicit language, he appeared to be asking her to have sex with him. He pressured her by suggesting that if she did not have sex with him he would get physically sick. McDade also indicated he was doing her a favor by not telling her mother that they were having sex because if the mother knew she would take the victim back to Mexico.

Once the conversations were recorded, the victim shared them with her boyfriend. They made digital copies of the recordings and gave them to the police. As a result, the victim was removed from the home and placed in a foster home. The State filed multiple charges against McDade.

McDade moved to suppress the recordings under section 934.06, Florida Statutes (2010). The trial court conducted an evi-dentiary hearing comparable to a standard suppression hearing. It denied the motion. The recordings were introduced into evidence at the trial and were a prominent feature of the trial. McDade was convicted of all but one of the offenses and is now serving long sentences, including two life sentences for capital sexual battery. He appeals these judgments and sentences.

It is worth emphasizing that the evidence at trial was surprisingly limited. There was no DNA evidence or other physical evidence to support the victim’s claims. McDade waived his Fifth Amendment rights and testified at his trial. As a result, this case rested on the relative credibility of the victim and McDade. Her mother testified in support of McDade and claimed that her daughter was lying about many things. Thus, the digital recordings of the conversations in the bedroom were probably the most important evidence presented during this trial.

II. THE VICTIM’S BOYFRIEND’S TESTIMONY

McDade claims that the victim’s boyfriend’s testimony that the victim told him that she was being raped by McDade should have been excluded as hearsay. “Admission of evidence is within the discretion of the trial court and will not be reversed unless there has been a clear abuse of that discretion.” Ray v. State, 755 So.2d 604, 610 (Fla.2000). Because the statements in question were introduced to show why the boyfriend encouraged the victim to make the recordings, we conclude that they do not constitute hearsay and thus the court did not abuse its discretion in admitting them.

The boyfriend’s testimony about the victim’s statements was not hearsay because it was not offered to prove that McDade actually raped the victim. See Krampert v. State, 13 So.3d 170, 174 (Fla. 2d DCA 2009) (holding that statements were not hearsay where they were not offered to prove the truth of the matter asserted but instead to explain their effect on the listener and the listener’s subsequent conduct). Instead, the statements at issue here were offered to explain why the victim’s boyfriend gave her his MP3 player to record her conversations with McDade. The statements were relevant to rebut the defense theory that the victim and her boyfriend fabricated the abuse allegations so that they could spend more time together.

Even if the statements had been admitted in error, any error was harmless. See Ventura v. State, 29 So.3d 1086, 1089 (Fla.2010) (explaining that an error is considered harmless only if there is no reasonable possibility that it contributed to the conviction). The boyfriend merely repeated the victim’s statement without going into any detail, and evidence was presented that the victim had shared the same information with various other people. Thus, there is no reasonable possibility that the boyfriend’s brief repetition of the victim’s statement affected the verdict.

III. THE RECORDINGS MADE BY THE VICTIM

McDade also argues that the recordings should have been suppressed because chapter 934, Florida Statutes (2010), prohibits “any person” from recording oral communications without consent and disclosing such recordings. We hold that the narrow factual circumstances of this case do not fall within the statutory proscription of chapter 934, but we certify a question to the Florida Supreme Court.

The standard of review for an order denying a motion to suppress evidence under section 934.06 has not been extensively discussed in prior case law. As a threshold matter, we note that the Fourth Amendment is not implicated in this case because the recordings were made by a private individual as opposed to a government actor: “the protection against unreasonable searches and seizures applies only to cases involving governmental action; it does not apply when the search or seizure was conducted by a private individual.” Armstrong v. State, 46 So.3d 589, 593 (Fla. 1st DCA 2010). Because McDade was attempting to invoke the protection of 934.06, we conclude that he had the initial burden of proof. Typically, we would review the trial court’s application of the statute de novo and the court’s findings of fact to determine if they are supported by competent, substantial evidence. See Chackal v. Staples, 991 So.2d 949, 953 (Fla. 4th DCA 2008). But see O’Brien v. O’Brien, 899 So.2d 1133, 1137-38 (Fla. 5th DCA 2005) (reviewing the trial court’s decision to exclude electronic communications under section 934.03 for an abuse of discretion). However, because the facts here are not in dispute and we are reviewing a trial court’s application of a statute in this context, we conclude that we review the trial court’s decision de novo. See Kephart v. Hadi, 932 So.2d 1086, 1089 (Fla.2006) (“The interpretation of a statute is a purely legal matter and therefore subject to the de novo standard of review”).

Chapter 934 explicitly and broadly prohibits “any person,” including private individuals, from recording oral communications without consent and disclosing such recordings. §§ 934.02(5), .03(1). Further, “[wjhenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial.... ” § 934.06. But the statutory proscription of chapter 934 only applies where the person uttering the communication has a reasonable expectation of privacy in that communication under the circumstances. § 934.02(2) (defining “oral communication” as “any oral communication uttered by a person exhibiting an expectation that such communication is not subject to interception under circumstances justifying such expectation....”). The Florida Supreme Court has explained that

[t]his expectation of privacy does not contemplate merely a subjective expectation on the part of the person making the uttered oral communication but rather contemplates a reasonable expectation of privacy. A reasonable expectation of privacy under a given set of circumstances depends upon one’s actual subjective expectation of privacy as well as whether society is prepared to recognize this expectation as reasonable.

State v. Inciarrano, 473 So.2d 1272, 1275 (Fla.1985). Significant factors to consider in determining whether a defendant’s expectation of privacy was reasonable under the circumstances include the location in which the communication occurred, the manner in which the communication was made, and the kind of communication at issue. Stevenson v. State, 667 So.2d 410, 412 (Fla. 1st DCA 1996).

Inciarrano involved a recording a victim made of his own murder. 473 So.2d at 1273. The defendant had entered the victim’s office. Id. at 1274. The victim was recording his conversation with the defendant regarding a business deal in which the victim no longer wanted to participate. The recording, found in the victim’s desk drawer, had captured the conversation as well as the sound of a gun being cocked, five shots being fired, several groans, the gushing of blood, and the victim falling from his chair. Id. The court determined that any subjective expectation of privacy that the defendant may have had was not justified under the circumstances because society would not be prepared to recognize it as reasonable. Id. at 1275.

As in Inciarrano, this case involves recordings made by a victim of the very criminal acts by which she was victimized. The minor victim recorded McDade soliciting her for sexual acts, as he had done for years. And though the conversation took place in McDade’s home, it was also the victim’s home. Considering these circumstances and consistent with the analysis and holding in Inciarrano, we conclude that any expectation of privacy McDade may have had is not one which society is prepared to accept as reasonable. Indeed, society has a special interest in protecting children from sexual abuse, and exceptional treatment of sex crimes in other areas of the law reflects these societal values. See, e.g., § 90.404(2), Fla. Stat. (2012) (providing that similar fact evidence of other crimes, wrongs, or acts is generally inadmissible when it is only relevant to prove bad character or propensity but creating exceptions to this rule for cases where the defendant is charged with child molestation or a sexual offense); § 394.910, Fla. Stat. (2012) (addressing the unique risk that sexually violent predators pose to society by creating a civil commitment procedure to provide for their continuing care and treatment); § 39.201 (providing that “any person” who knows or has reasonable cause to suspect that a child is being abused, sexually or otherwise, must report that knowledge or suspicion). This case involves the rape of a child in her own home by her own stepparent. It is precisely because the rape of a child is such a heinous crime which is so often difficult to detect that society has a special interest in guarding children from it and exceptions in the law exist to further this goal. Considering these values and the already-existing legal exceptions that reflect them, we conclude that suppressing the recordings pursuant to chapter 934 under the circumstances of this case would produce an absurd result — a result we cannot fathom was intended by the legislature.

Accordingly, we affirm. However, we certify the following question of great public importance to the Florida Supreme Court:

DOES A RECORDING OF SOLICITATION AND CONFIRMATION OF CHILD SEXUAL ABUSE MADE BY THE MINOR CHILD FALL WITHIN THE PROSCRIPTION OF CHAPTER 934, FLORIDA STATUTES (2010)?

Affirmed; question certified.

ALTENBERND, J., Concurs specially with opinion.

YILLANTI, J., Concurring in part and dissenting in part with opinion.

ALTENBERND, Judge,

Concurring specially.

I concur in Judge Khouzam’s opinion for the court. The key issue in this case is whether the supreme court, when explaining the statutory definition of a protected “oral communication” in Inciarrano, intended for the “circumstances” that “society” is not prepared to recognize to include Mr. McDade’s alleged long-term abuse of a child. In Inciarrano, the circumstances the court actually considered were the semi-public place where the recording occurred, the determination that the defendant was a trespasser, and perhaps the fact that the recording device was in plain view. If these types of factors, i.e., time, place, legal status of the defendant, and physical conditions associated with the recording, are the only factors we should consider in this case, they all strongly support Mr. McDade’s expectation that his statements were not being intercepted. If those are the only factors we are allowed to consider, then Judge Villanti is correct and we should reverse these convictions and sentences.

Under the “society is prepared to recognize” test, I conclude that in 2011 a person who regularly and consistently abused a teenager in a bedroom of their shared home had no reasonable expectation that their conversations about the abuse would never be recorded. In this modern digital world, any such adult should have expected that eventually a teenage victim would record such conversations in self-defense. Accordingly, I concur in this decision because Mr. McDade could not reasonably expect his statements to be protected oral communications.

Despite my concurrence, I frankly share some of Judge Villanti’s concerns about the direction that Inciarrano takes us in today’s decision. I share five concerns in this special opinion.

I. THE BURDEN OF PROOF AT THE PRELIMINARY HEARING

My first concern involves the burden of proof and persuasion on this issue. Whether this recording violates chapter 934 is not an issue that is resolved at a typical hearing on a motion to suppress under Fourth Amendment standards. In the trial court, the hearing was conducted like a hearing on a motion to suppress, but it was actually a preliminary hearing that should have been conducted under section 90.105, Florida Statutes (2011), to determine whether these recordings are statutorily inadmissible under section 934.06. We have assumed that the burden of proof and persuasion at this hearing rested with Mr. McDade. But at the time of the preliminary hearing, he was presumed innocent; he had all of his Fifth Amendment rights. By expanding the holding of Inciarrano to include these circumstances, we may have effectively placed the burden on him to prove by a preponderance of the evidence that he is innocent in order to prevent the recordings from being admitted into evidence. I am troubled by this procedure.

In this case, however, I do not believe that the burden of proof at the hearing is dispositive. The trial court seemed to place the burden of proof on the State. Moreover, the evidence is essentially undisputed on this issue. The issue of whether these conversations are protected “oral communications” for purposes of the statute is a question of law and we correctly review it de novo. If this case involved substantial disputes of fact at the preliminary hearing, the burden of proof and persuasion could be a very difficult issue.

II. BAD FACTS SOMETIMES MAKE FOR BAD LAW

Second, there can be little question that the bad facts in Inciarrano placed great pressure on the supreme court to reach the outcome it reached. This case presents equally difficult facts for this panel. As I explain at the end of this opinion, we are bound to be faced with an increasing number of “bad facts” cases under chapter 934. In 1985, when the supreme court considered Inciarrano, it arguably had two options. First, it could have relied on the strong legislative policy announced in 1974. Florida, unlike most other jurisdictions, requires the consent of “all parties” to an intercepted oral communication. If it had enforced this strong policy, it could then have allowed the legislature to revisit its questionable minority view. Instead, it selected a second option. It relied on the “objective” test within the definition of “oral communication” to provide a societal-approval test that allows for case-by-case outcomes when statutory suppression of evidence seems unnecessary. As discussed later, I question whether the societal-approval test is an erroneous importation of the Fourth Amendment into this statute. It is not an objective test in the normal common law sense. This test is inherently subject to criticism as a result-oriented test. In this case, the stepdaughter is undoubtedly aided by the result we reach, but I am left to wonder whether the law would be stronger if we simply had required the legislature in 1985 to re-examine the merits of the 1974 amendment creating the “all parties” requirement in the statute.

III. INCIARRANO UNINTENTIONALLY WEAKENED THE LEGISLATIVE POLICY PROTECTING OUR PRIVACY

Third, and related to my concerns in the preceding section, by shifting the analysis of this statute from the strong language in section 934.03(1) to the definition of “oral communication” in section 934.02(2), the decision in Inciarrano weakened the legislative policy protecting privacy. If one examines the statute as created in 1969 and as amended in 1974, the legislature constructed a strong, broad policy protecting people from surreptitious interception of their oral communications. The policy created a prohibition of secret recordings that was enforced by both civil and criminal penalties, as well as by the statutory exclusionary rule contained is section 934.06. This broad policy was subject to enumerated exceptions in section 934.03(2). The exceptions included the right of police to conduct lawful investigations and of private citizens to record conversations only with the consent of all parties. Significantly, the legislature created no exception for the surreptitious interception of oral communications by private citizens conducting their own personal investigations of ongoing criminal activity. This structure created a strong policy and then placed the burden on litigants to overcome that policy by establishing one of the enumerated statutory exceptions.

But Inciarrano changed this policy by its reliance on the definition of “oral communication” in section 934.02(2). The reasoning in Inciarrano provides protection from interception of conversations only if, after the fact, a judge decides that “society” is willing to provide that protection. To some degree, the content of the recording is used to determine whether the party that opted to record the conversation is either a felon or a person free to record the conversation. This is true even though the recording party, before the recording device is turned on, can never be certain what the recorded party will say after it is turned on.

By relying on section 934.02(2) instead of section 934.03, the holding in Inciarrano flips the burden of proof and persuasion from the party seeking an exception to the statute to the party seeking the protection of the statute. That may not be an unreasonable policy, but I see little evidence that it was the policy of the legislature that enacted these protections. Nevertheless, the legislature has had a generation to overrule Inciarrano and it has not done so.

It is noteworthy that the difficult issue in this case is only difficult in a Florida state court. Under the similar federal statute, these recordings are admissible because the stepdaughter consented to the recording. The federal statute has the same definition of “oral communication,” but I can find no instance in which a federal court has been forced to apply the societal-approval test to avoid a difficult outcome. See 18 U.S.C.A. § 2510(2) (2012).

IV. THE ODD RELIANCE ON FOURTH AMENDMENT CASE LAW IN INCIARRANO

Fourth, with all due respect to the members of the supreme court in 1985, I am inclined to believe that the societal-approval test announced in Inciarrano is not a proper interpretation of the statute and is, in fact, an odd importation of Fourth Amendment standards. When the supreme court created the “society is prepared to recognize” standard to measure the objective reasonableness of a person’s expectation that communications are not being intercepted, the court relied exclusively upon Shapiro v. State, 390 So.2d 344 (Fla.1980). But Shapiro did not involve a recording. The defendant in Shapiro was charged with possession of cocaine. He was searched at an airport. Shapiro involved a warrantless search by government agents. This was a typical Fourth Amendment case that relied on the analysis in Katz v. United States, 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967).

The court’s decision to import Fourth Amendment analysis into this statute substantially changes the analysis performed under the statute. Ordinary citizens are permitted to intrude into one another’s private lives under an entirely different set of rules than those that control the government. The Fourth Amendment of the United States Constitution and article I, section 23 of the Florida "Constitution are intended to protect people from undue government intrusion into their private lives. These constitutional protections may play a small role in molding the social standards that underpin the privacy rights that exist between and among private persons, but that is all they do. The rights between such private persons may be regulated by the legislature as it sees fit, subject to the limitations of article I, section 23.

Society is not fond of murderers or child molesters. If the circumstances to be considered are exclusively factors such as time, place, and legal status of the defendant, this test is easier to apply but it may not actually be a societal-approval test. If we consider the additional factors that we admittedly have relied upon in this case, “society’s” opinion on the matter is a troubling test that leaves our rights in flux.

Under the common law, an objective test is not based on society’s opinion but on the standard established by the ordinary reasonable person living in that society under like circumstances. See Fla. Std. Jur. Instr. (Civ.) 401.4; Miami-Dade Police Dep’t v. Martinez, 838 So.2d 672, 675 (Fla. 3d DCA 2003); Prosser, Law of Torts § 32 (1971). Due to the holding in Inciarrano, we are not allowed to employ the typical ordinary reasonable person standard in this case. Frankly, I am not certain what the outcome would be under that test.

V. THE MODERN DIGITAL WORLD COLLIDES WITH CHAPTER 934

In closing, I would point out that the decision whether to enforce the strong language and original policy of the statute or to take an “all the circumstances” approach that permits some use of seemingly private recordings is a decision that must be made in the context of the modern digital world. Chapter 934 was adopted in an analog era before cell phones and MP3 players were invented. Today we live in a society where practically every teenager and even many senior citizens carry small, concealed recording devices on their persons. The modern smartphone can record video as well as audio and transfer it immediately to the Internet. It is likely that the “all parties” requirement in chapter 934 now results in hundreds of illegal recordings and perhaps thousands of illegal disclosures on the Internet in Florida every day. It seems ill advised to depend upon individual trial judges and the societal-approval test to sort out the good recordings from the bad after the fact. The huge advances in technology that have affected our society’s view of privacy should prompt the legislature to revisit the 1974 amendment and to decide whether it would now be more prudent to return to a statute comparable to the federal statute and the statute in place in most other states.

VILLANTI, Judge,

Concurring in part and dissenting in part.

I agree with the majority that the trial court did not abuse its discretion by admitting the victim’s boyfriend’s statements. However, I must respectfully dissent from the portion of the majority’s opinion that could be interpreted as creating an exception to section 934.06 for victims of child sexual abuse because “where a statute is free from ambiguity, we must follow its plain meaning.” State Farm Mut. Auto. Ins. Co. v. Nichols, 932 So.2d 1067, 1073 (Fla.2006). In essence, that portion of the majority’s decision has declared that, despite the statute’s plain language, the legislature did not intend for audiotaped evidence gathered by a victim of child sexual abuse without the alleged abuser’s consent to be excluded even though the exclusion of such evidence is mandated by a duly enacted statute. While I would like the law to be so, I do not believe that it is so.

Section 934.06, Florida Statutes (2010), specifically provides:

Whenever any wire or oral communication has been intercepted, no part of the contents of such communication and no evidence derived therefrom may be received in evidence in any trial, hearing, or other proceeding in or before any court, grand jury, department, officer, agency, regulatory body, legislative committee, or other authority of the state, or a political subdivision thereof, if the disclosure of that information would be in violation of this chapter. The prohibition of use as evidence provided in this section does not apply in cases of prosecution for criminal interception in violation of the provisions of this chapter.

(Emphasis added.) Section 934.03(1) generally prohibits the interception of any wire or oral communication. Section 934.03(2) provides a list of “exceptions” to this general prohibition on intercepting communications. One of the exceptions is if all of the parties to the conversation have consented to the interception. § 934.03(2)(d). Notably, however, the interceptor’s status as a victim of child sexual abuse is not included in that list. Thus, the plain language of sections 934.03 and 934.06 prohibits the admission of the recordings at issue in this case.

To reach its contrary result, the majority relies on State v. Inciarrano, 473 So.2d 1272 (Fla.1985), for the proposition that a recording made by a victim of child sexual abuse should not be subject to the clear and unambiguous provisions of section 934.06. However, in my view, the facts in Inciarrano are sufficiently different from those in this case to preclude any purported application of stare decisis. In Inciar-rano, the defendant went to the victim’s business office with the intent to do harm to the victim. Id. at 1274. In finding that Inciarrano had no reasonable expectation of privacy in a recorded conversation made by the victim without Inciarrano’s consent, the court considered “the quasi-public nature of the premises within which the conversations occurred, the physical proximity and accessibility of the premises to bystanders, and the location and visibility to the unaided eye of the microphone used to record the conversations.” Id. The court also noted that when going into the victim’s place of business, Inciarrano was an invitee but that his status changed to that of a trespasser when he decided to commit a crime. Id. at 1275-76. In consideration of all of these factors, the court held that Inciarrano had no reasonable expectation of privacy in oral communications made while he was in the victim’s place of business.

Here, however, the facts show that McDade was inside his own bedroom in his own residence. Hence, the premises within which the conversation occurred were anything but “quasi-public,” and they were not accessible to “bystanders.” I cannot conceive of a location where an individual has a greater expectation of privacy than in his or her own bedroom in his or her own house — an area that has traditionally been presumed to have a heightened right of privacy, not a reduced one. See, e.g., Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (noting that “a man’s home is, for most purposes, a place where he expects privacy”) (Harlan, J., concurring); Jardines v. State, 73 So.3d 34, 45 (Fla.2011) (noting that a person has a reasonable expectation of privacy in his or her own private home). This is a crucial factual distinction.

To my reading of Inciarrano, the court focused on whether society was prepared to recognize the expectation of privacy in the location of the conversation — not the content of the conversation or the status of the recorder and/or recordee. Inciarra-no’s discussion of the quasi-public nature of the victim’s business premises and the invitee/trespasser distinction makes clear that the court decided the case based on the fact that Inciarrano did not have a reasonable expectation of privacy in the oral communication because he was at the victim’s business location. Whether his expectation of privacy was reasonable depended on the location — not the content— of the conversation. Hence, while I agree with the majority that society is not, in general, inclined to protect those who commit sexual offenses against children, it is the expectation of privacy in the location at issue — not any expectation of privacy in the substance of the conversation itself— that dictates whether one party may legally intercept that conversation.

I note that when chapter 934 was originally enacted in 1969, it permitted a private person to intercept an oral communication when the person was one of the parties involved. See ch. 69-17, Laws of Fla. However, in 1974, the legislature amended the statute to require consent of “all of the parties” to the conversation. See ch. 74-249, § 2, at 695, Laws of Fla. In the almost forty years since this statutory amendment, the legislature has declined to carve out an exception to the statute for victims of crimes. Surely, had the legislature intended to create such an exception, or even a very narrow exception for child sexual abuse victims, it could easily have done so. See, e.g., Am. Bankers Life Assurance Co. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968) (noting that “had the legislature intended the statute to import a more specific and definite meaning, it could easily have chosen words to express any limitation it wished to impose”). As the majority aptly points out, when the legislature intends to provide such special protection to victims of child sexual abuse, it knows how to do so. See, e.g., § 90.404(2), Fla. Stat. (2010) (providing a special exception to the general rule concerning similar fact evidence in cases involving child sexual abuse). The fact that the legislature has chosen not to create such an exception to section 934.06 conveys an intent to forbid the use of all such interceptions, regardless of the vic-timhood of any of the parties to the conversation.

Perhaps the 1974 legislature was not thinking of barring evidence derived from vigilante justice. It certainly could not have conceived of the improved technology that would assist in such an endeavor in 2011. However, the existing statute leaves no room for these eventualities. Nor do I believe, as the concurring opinion posits, that the language in Inciarrano opens the door for this court, and the trial courts, to determine on an ad-hoc basis what privacy interests society is prepared to recognize. That role is reserved for the legislature. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (noting that it would be an abrogation of legislative poorer for the courts to extend, modify, or limit the express provisions of a statute). In a perfect world, the legislature would have amended section 943.06 to address the holding of Inciarra-no. Its failure to do so creates a legal dilemma for the State in cases when it seeks to overlook the victim’s extrajudicial actions in an effort to enhance its evidence against the accused. However, I do not believe it is within the courts’ reach to engage in policy-weighing.

Finally, while somewhat beside the point, my reading of the record shows that a jury using its common sense would have reached the same result without the inadmissible evidence. Hence, I would reverse McDade’s conviction and remand for a new trial without the admission of the audio-taped evidence.

      . McDade allegedly has had a vasectomy. The testimony of the girl at least suggests that she may have incorrectly believed that she could not obtain DNA evidence for this reason.

      . The entirety of the boyfriend's testimony on the victim’s reports of sexual abuse is as follows:
      [Prosecutor]: Okay. At some point did [the victim] tell you that her [stepdad], Richard McDade, had been having sex with her? [Boyfriend]: Yeah. She told me that she was being raped when she was younger. She said—
      [Defense]: Objection, Your Honor. It's calling for hearsay.
      After the objection was overruled, the prosecutor continued.
      [Prosecutor]: Did there come a time after you met [the victim] that she told you that her stepdad had been, as you put it, I guess raping her, but sexually abusing her? [Boyfriend]: Yes.

      [Prosecutor]: Did there come a point when you told her she should tape it on an mp3 player?
      [Boyfriend]: Yes.

      . Though we recognize that the State mistakenly proceeded at the suppression hearing as if it had the burden of proof, this procedural error does not change the result here because the facts in this case are not in dispute.

      . We note that in reaching this conclusion, we have considered State v. Walls, 356 So.2d 294, 296 (Fla.1978), in which the Florida Supreme Court held that an extortion threat delivered personally to the victim in the victim's home was an "oral communication” within chapter 934. Though Walls dealt with a recording of a criminal act made by a victim in his home, its holding does not control here because it does not implicate society’s special interest in protecting children from sex abuse. Moreover, the reasoning in Walls has been called into doubt. See Inciarrano, 473 So.2d at 1275 (distinguishing Walls because it did not address the requirement that any expectation of privacy in a communication must be reasonable for chapter 934 to apply); Jatar v. Lamaletto, 758 So.2d 1167, 1169 (Fla. 3d DCA 2000) (questioning the continued validity of Walls in light of Inciar-rano and holding that Jatar’s extortion threat was not a protected "oral communication” under chapter 934 because his expectation of privacy was not justified).

      . In 1971, President Richard M. Nixon began secretly recording conversations in the White House. Nixon White House Tapes, Nixon Presidential Library & Museum, http://www. nixonIibrary.gov/virtuallibrary/tapeexcerpts/ (last visited May 22, 2013, 11:31 A.M.). When this was discovered, the public was very troubled by the practice. In 1974, with virtually no debate, the legislature amended Florida’s statute to require the consent of "all of the parties” to a conversation. See ch. 74-249, § 2, at 695, Laws of Fla.; State v. Tsavaris, 394 So.2d 418 (Fla.1981) (describing enactment of amendment). The "all party” version of this statute remains a minority view; many states and the federal government continue to require the consent of only a single party. See, e.g., 18 U.S.C.A. § 251 l(2)(a)(iii)(d) (2012); see generally Carol M. Bast, What’s Bugging You? Inconsistencies and Irrationalities of the Law of Eavesdropping, 47 DePaul L.Rev. 837 (1998) (surveying state-by-state consent laws).

      . Arguably, the societal-approval test is actually a determination that section 934.03(1) is unconstitutional as applied under the strict scrutiny analysis required by article I, section 23 of the Florida Constitution. See Von Eiff v. Azicri, 720 So.2d 510, 514 (Fla.1998). In other words, it is arguably unconstitutional for the legislature to intrude upon the stepdaughter’s right to record these conversations in private when the recording is necessary to protect her from being victimized. Whether that analysis would also apply to the admissibility of these recordings in a public trial may be a different question.


author: WALLACE, Judge.

text:
    Michelle GABRIELE, Appellant, v. SCHOOL BOARD OF MANATEE COUNTY, Florida, Appellee.
    No. 2D12-2424.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.

      Melissa C. Mihok of Kelly & McKee, P.A., Tampa, for Appellant.
    Thomas M. Gonzalez and Erin G. Jackson of Thompson, Sizemore, Gonzalez & Hearing, P.A., Tampa, for Appellee.
   WALLACE, Judge.

Michelle Gabriele, a teacher, appeals a Final Order entered by the School Board of Manatee County (the School Board), suspending her employment for fifteen days without pay and returning her from a professional service contract to an annual contract. On this appeal, Ms. Gabriele challenges only the authority of the School Board to return her to annual contract status. Because the School Board lacks the statutory authority to return Ms. Ga-briele from a professional service contract to an annual contract, we reverse the Final Order to the extent that it purports to change Ms. Gabriele’s contract status.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

The School Board has employed Ms. Gabriele as a teacher for more than ten years. During the 2010-2011 school year, Ms. Gabriele was a member of the instructional staff and was employed under a professional service contract. Thus the School Board could not suspend Ms. Ga-briele or terminate her employment except for good cause. See § 1012.33(l)(a), (6)(a), Fla. Stat. (2010).

On June 3, 2011, the School Board’s superintendent sent Ms. Gabriele a letter notifying her that he intended to recommend to the School Board that she be suspended without pay for fifteen days and that she be returned to an annual contract. The superintendent detailed his reasons for the recommended discipline in an administrative complaint that he attached to the letter. Ms. Gabriele timely requested a formal administrative hearing on the administrative complaint, and the superintendent referred the matter to the Division of Administration Hearings.

After a formal hearing, the Administrative Law Judge (ALJ) entered a Recommended Order finding that the School Board had just cause to discipline Ms. Gabriele. The ALJ also recommended that the School Board enter a Final Order suspending Ms. Gabriele for fifteen days without pay and returning her to an annual contract. On April 9, 2012, the School Board entered a Final Order that (1) denied Ms. Gabriele’s exceptions to the Recommended Order, (2) adopted the Recommended Order as the School Board’s Final Order, (3) suspended Ms. Gabriele’s employment for fifteen days without pay, and (4) returned Ms. Gabriele to an annual contract. This appeal followed.

II. FRAMING THE ISSUE

On appeal, Ms. Gabriele does not challenge the finding that the School Board had just cause for imposing discipline or the fifteen-day suspension without pay. Instead, Ms. Gabriele challenges the School Board’s authority under the applicable statutes to change her contract status from a professional service contract to an annual contract. Accordingly, the issue before us is whether the School Board had the statutory authority to discipline a member of its instructional staff, who is employed under a professional service contract, by returning the teacher to annual contract status. Because the issue presented involves a question of statutory interpretation, we apply a de novo standard of review. Arnold, Matheny & Eagan, P.A. v. First Am. Holdings, Inc., 982 So.2d 628, 632 (Fla.2008).

III. DISCUSSION

Florida has a detailed plan for education known as “the Florida K-20 education system.” This plan is statutory in nature. The legislature has codified the plan in chapters 1000 through 1013 of the Florida Statutes as the “Florida K-20 Education Code.” § 1000.01(1), Fla. Stat. (2010).

Chapter 1012 of the Code addresses personnel issues. During the time period pertinent to this case, chapter 1012 recognized three types of written contracts under which school boards might employ members of their instructional staffs: (1) an annual contract, (2) a continuing contract, and (3) a professional service contract. § 1012.33; Lee Cnty. Sch. Bd. v. Silveus, Case No. 04-4096, 2005 Fla. Div. Adm. Hear. LEXIS 904 *17 (Fla. DOAH Mar. 16, 2005), adopted in pertinent part, Case No. 05-0003 (Lee Cnty. Sch. Bd. June 14, 2005). Annual contracts expire at the end of the school year. See MacPherson v. Sch. Bd. of Monroe Cnty., 505 So.2d 682, 683 n. 1 (Fla. 3d DCA 1987) (citing Lake Cnty. Educ. Ass’n v. Sch. Bd. of Lake Cnty., 360 So.2d 1280 (Fla. 2d DCA 1978)). Accordingly, a teacher employed under an annual contract has no right to reemployment. Id.; see also Buckner v. Sch. Bd. of Glades Cnty., 718 So.2d 862, 866 (Fla. 2d DCA 1998) (“[Ijnstructional staff employed under annual probationary contracts have no right to future employment after their annual contract expires.”).

The remaining two types of contracts do not expire at the end of the school year. However, continuing contracts are limited to those employees who obtained their contract status before July 1, 1984. § 1012.33(4)(a); Dietz v. Lee Cnty. Sch. Bd., 647 So.2d 217, 218 (Fla. 2d DCA 1994) (Blue, J., specially concurring) (“A continuing contract applies only to instructional staff attaining their contract status before July 1984.”). Ms. Gabriele was a long-time employee, and she was employed under a professional service contract. “[A] professional service contract is a continuous contract which renews automatically, and can only be terminated for just cause pursuant to section 1012.33, Florida Statutes, or based upon uncorrected performance deficiencies pursuant to section 1012.34, Florida Statutes.” Orange Cnty. Sch. Bd. v. Rachman, 87 So.3d 48, 49 n. 1 (Fla. 5th DCA 2012).

The authority of school boards to suspend, dismiss, and return teachers to annual contract status is controlled by statute. Section 1012.22(l)(f) confers a general grant of authority to school boards as follows:

Suspension, dismissal, and return to annual contract status.—The district school board shall suspend, dismiss, or return to annual contract members of the instructional staff and other school employees; however, no administrative assistant, supervisor, principal, teacher, or other member of the instructional staff may be discharged, removed, or returned to annual contract except as provided in this chapter.

(Emphasis added.) However, the general grant of authority set forth in section 1012.22(l)(f) must be read in conjunction with section 1012.33.

Section 1012.33 sets forth detailed provisions regulating and limiting a school board’s authority over teacher discipline. Notably, the types of discipline authorized under section 1012.33 differ depending on whether the member of the instructional staff is employed under a continuing contract or a professional service contract. Thus a careful reading of section 1012.33 is essential to the analysis of the issue presented.

Section 1012.33 provides, in pertinent part, as follows:

(l)(a) Each person employed as a member of the instructional staff in any district school system ... shall be entitled to and shall receive a written contract as specified in this section. All such contracts, except continuing contracts as specified in subsection (4), shall contain provisions for dismissal during the term of the contract only for just cause. Just cause includes, but is not limited to, the following instances, as defined by rule of the State Board of Education: immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude.
(3)(a) Each district school board shall provide a professional service contract as prescribed herein. Each member of the instructional staff who completed the following requirements prior to July 1, 1984, shall be entitled to and shall be issued a continuing contract in the form prescribed by rules of the state board pursuant to s. 231.36, Florida Statutes (1981). Each member of the instructional staff who completes the following requirements on or after July 1, 1984, shall be entitled to and shall be issued a professional service contract in the form prescribed by rules of the state board as provided herein:
(e) A professional service contract shall be renewed each year unless the district school superintendent, after receiving the recommendations required by s. 1012.34, charges the employee with unsatisfactory performance and notifies the employee of performance deficiencies as required by s. 1012.34....
(4)(a) An employee who had continuing contract status prior to July 1, 1984, shall be entitled to retain such contract and all rights arising therefrom as prescribed by rules of the State Board of Education adopted pursuant to s. 231.36, Florida Statutes (1981), unless the employee voluntarily relinquishes his or her continuing contract.
(b) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any school principal, who is under continuing contract may be dismissed or may be returned to annual contract status for another 3 years in the discretion of the district school board, at the end of the school year, when a recommendation to that effect is submitted in writing to the district school board on or before April 1 of any school year, giving good and sufficient reasons therefor, by the district school superintendent, by the school principal if his or her contract is not under consideration, or by a majority of the district school board....
(c) Any member of the district administrative or supervisory staff and any member of the instructional staff, including any school principal, who is under continuing contract may be suspended or dismissed at any time during the school year; however, the charges against him or her must be based on immorality, misconduct in office, incompetency, gross insubordination, willful neglect of duty, drunkenness, or being convicted or found guilty of, or entering a plea of guilty to, regardless of adjudication of guilt, any crime involving moral turpitude, as these terms are defined by rule of the State Board of Education ....
(6)(a) Any member of the instructional staff, excluding an employee specified in subsection (Jf), may be suspended or dismissed at any time during the term of the contract for just cause as provided in paragraph (l)(a).

(Emphasis added.) With regard to the authority of a school board to return a member of the instructional staff to annual contract status, section 1012.33 draws a sharp distinction between those teachers with continuing contracts and those with professional service contracts. A teacher employed “under [a] continuing contract may be dismissed or ... returned to annual contract status for another 3 years in the discretion of the ... school board, at the end of the school year, ... [for] good and sufficient reasons.” § 1012.33(4)(b); Burns v. Sch. Bd. of Palm Beach Cnty., 283 So.2d 873, 875 (Fla. 4th DCA 1973) (construing section 231.36(4), the predecessor to section 1012.33(4)). In contrast, section 1012.33(6)(a) provides that teachers not under a continuing contract, i.e., teachers under a professional service contract, may only be suspended or dismissed for just cause. The statute does not grant school boards the authority to return an employee under a professional service contract to an annual contract at any time.

The School Board argues that its power to suspend or dismiss a teacher under a professional service contract for just cause necessarily includes the power to return such a teacher to annual contract status. We disagree. The specific language of section 1012.33(4) proves that the legislature knew how to provide school boards with the authority to return a member of the instructional staff to annual contract status when it wished to do so. In section 1012.33(4), the legislature expressly granted school boards the authority to return teachers under continuing contracts to annual contract status. In the same statutory section, the legislature omitted language that would authorize school boards to return employees under professional service contracts to annual contract status. § 1012.33(6). We. cannot overlook or disregard the statute’s disparate treatment of teachers under continuing contracts and teachers under professional service contracts. “When the legislature has used a term, as it has here, in one section of the statute but omits it in another section of the same statute, we will not imply it where it has been excluded.” Leisure Resorts, Inc. v. Frank J. Rooney, Inc., 654 So.2d 911, 914 (Fla.1995). “ ‘The legislative use of different terms in different portions of the same statute is strong evidence that different meanings were intended.’” State v. Mark Marks, P.A., 698 So.2d 533, 541 (Fla.1997) (quoting Dep’t of Prof'l Regulation v. Durrani, 455 So.2d 515, 518 (Fla. 1st DCA 1984)). In addition, we must reject the School Board’s argument based on its claim of implied authority because the plain and definite language of the statute controls our task of statutory interpretation. See Tropical Coach Line, Inc. v. Carter, 121 So.2d 779, 782 (Fla.1960).

The School Board suggests that the result we reach improperly limits it from imposing a lesser form of discipline — a return to annual contract status — in lieu of suspension or dismissal for teachers employed under a professional service contract. Thus the result we reach here may actually work to the disadvantage of such teachers. However, it seems likely that the discipline of most teachers by returning them to annual contract status eventually results in failure to renew the teacher’s contract at the end of one or more contract terms. Under these circumstances, termination of the teacher’s employment remains the ultimate consequence. In any event, considerations such as these are for the legislature, not the courts. We base our decision on the pertinent statutory language.

IY. CONCLUSION

For the foregoing reasons, we hold that the School Board lacked the authority to discipline Ms. Gabriele by changing her contract status from a professional service contract to an annual contract. We reverse the Final Order to the extent that it returned Ms. Gabriele to an annual contract. In all other respects, we affirm the Final Order.

In its administrative complaint, the School Board did not seek to dismiss Ms. Gabriele. Accordingly, on remand, the School Board shall restore Ms. Gabriele to her professional service contract. In addition, the School Board shall reimburse Ms. Gabriele for any reduction in pay and undo any other adverse consequences resulting from its unauthorized attempt to return her to an annual contract.

Affirmed in part, reversed in part, and remanded with directions.

ALTENBERND and CRENSHAW, JJ., Concur.

      . The legislature repealed paragraphs (a), (b), and (c) of subsection (3) of section 1012.33 effective July 1, 2011. Ch. 2011-37, § 19, at 504, Laws of Fla. As a result, school boards are no longer authorized to issue professional service contracts. Instead, the only contracts school boards are authorized to issue to members of their instructional staffs are probationary contracts for new hires and annual contracts for all others. Ch. 2011-1, § 5, at 54-56, Laws of Fla. To put it simply, tenure is no longer available for members of a school board’s instructional staff hired on or after July 1, 2011.


author: ALTENBERND, Judge.

text:
    Eric Matthew RUSSELL, Petitioner, v. STATE of Florida, Respondent.
    No. 2D13-111.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.
    William Mallory Kent, Jacksonville, for Petitioner.
   ORDER ON PETITIONER’S RENEWED PETITION FOR BELATED DISCRETIONARY REVIEW AND MOTION FOR RECONSIDERATION

ALTENBERND, Judge.

This court earlier dismissed Eric Matthew Russell’s common law petition for second-tier certiorari as untimely. Mr. Russell has filed a renewed petition for belated discretionary review and motion for reconsideration. We strike the renewed petition; we grant reconsideration only to explain our reason for dismissing the original certiorari petition and to explain that a petition for belated discretionary review under Florida Rule of Appellate Procedure 9.141(c) is not available to provide untimely review of a common law petition for certiorari.

Mr. Russell was apparently charged with DUI as a second offense in county court in 2009. He entered a plea to this offense without realizing the effect it would have on his commercial driver’s license. He thereafter sought relief from his plea by filing a motion pursuant to Florida Rule of Criminal Procedure 3.850. The county court denied the motion.

Mr. Russell appealed to the circuit court, and it affirmed the county court’s order. He then filed a “notice of appeal” seeking review of the circuit court’s appellate decision. Because the circuit court’s order was not appealable, this court converted the proceeding to one in certiorari. See Fla. R.App. P. 9.030(b)(2)(B) (providing that the district courts of appeal have certiorari jurisdiction to review “final orders of circuit courts acting in their review capacity”); 9.040(c).

Unfortunately, the “notice of appeal” was filed beyond the thirty-day deadline for either a notice of appeal or a petition for certiorari. See Fla. R.App. P. 9.110(b), 9.100(c)(1). Accordingly, this court issued an order to show cause why the petition should not be dismissed as untimely. Mr. Russell’s attorney, apparently agreeing that the petition had been filed untimely, responded by filing a petition for belated appeal. He explained that Mr. Russell had asked him to “appeal” the circuit court’s ruling, but he had not timely filed a notice. We treated the petition as a motion and denied it, simultaneously dismissing the petition for certiorari as untimely.

Mr. Russell obtained new counsel who has filed a renewed petition for belated discretionary review and motion for reconsideration. He urges us to reconsider Mr. Russell’s request for review under the provision for belated discretionary review found in rule 9.141(c). We appreciate counsel’s diligence in pursuing this matter. Unfortunately, we conclude that we have no power to grant this petition.

Rule 9.141(q) simply does not encompass second-tier certiorari because second-tier certiorari falls under neither “belated appeal” nor “belated discretionary review.” We have constitutional authority to consider common law petitions for certiorari. See Art. V, § 4(b)(3), Fla. Const. When reviewing final orders of circuit courts acting in their appellate capacity, that power is recognized in rule 9.030(b)(2)(B). The common law petition for certiorari, however, is an original proceeding in a district court and is filed under Florida Rule of Appellate Procedure 9.100. Although it may function as a very narrow form of judicial review, it is not regarded as an appellate proceeding in the normal sense. We simply do not read rule 9.141(c) as authorizing a belated filing of a common law petition for certiorari. Accordingly, we hold that we have no power to extend the time to file such an original proceeding.

Motion for reconsideration granted; petition for belated discretionary review is stricken.

KHOUZAM and SLEET, JJ., Concur.

      . It does not affect our decision, but it appears that he may have filed more than one postconviction motion.

      . Aside from his legal argument, Mr. Russell is concerned that we rejected his earlier motion because he had sought a belated "appeal” in a certiorari proceeding. Our denial of the motion for belated appeal was not based on the terminology used by Mr. Russell.

      . Prior to relatively recent amendments, rule 9.141(c) concerned petitions seeking "belated appeal” and did not mention "discretionary review.” See Fla. R.App. P. 9.141(c) (2007). However, in Sims v. State, 998 So.2d 494, 503 (Fla.2008), the Florida Supreme Court sua sponte amended rule 9.141(c) to permit a petition for belated discretionary review in the supreme court from an opinion of a district court. See also In re Amendments to Florida Rule of Appellate Procedure 9.141, 992 So.2d 233, 236 (Fla.2008) (codifying the amendment). Clearly, the amendment was intended to provide criminal defendants with a procedure for seeking belated discretionary review in the supreme court under rule 9.120.

      .It is useful to recall that the right to belated appeal arose in the context of cases in which the defendant had a constitutional right to counsel. See Baggett v. Wainwright, 229 So.2d 239, 241 (Fla.1969). No such right has ever existed in the context of second-tier cer-tiorari proceedings.

      . Rule 9.141(c) has been amended several times since 2008, but those changes have not broadened the intended scope of "belated discretionary review” to include a belated common law petition for certiorari to this court. See In re Amendments to the Florida Rules of Civil Procedure, the Florida Rules of Judicial Administration, the Florida Rules of Criminal Procedure, the Florida Probate Rules, the Florida Small Claims Rules, the Florida Rules of Juvenile Procedure, the Florida Rules of Appellate Procedure, and the Florida Family Law Rules of Procedure—Electronic Filing, 102 So.3d 451, 484-85 (Fla.2012); In re Amendments to Florida Rules of Criminal Procedure 3.850 and 3.851; Amendments to Florida Rules of Appellate Procedure 9.141 and 9.142, 72 So.3d 735, 741 (Fla.2011); In re Amendments to Florida Rule of Appellate Procedure 9.141, 1 So.3d 168, 169-70 (Fla.2009).

      . By so holding, we have rendered an order that may be challenged by petition for writ of mandamus in the supreme court. If we actually have power to consider the merits of the petition for belated discretionary review and have misunderstood our power, the supreme court could issue a writ of mandamus compelling us to consider this petition. See Woods v. State, 17 So.3d 707 (Fla.2009) (table decision).


author: KHOUZAM, Judge.

text:
    Albert STEVENS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4047.
    District Court of Appeal of Florida, Second District.
    June 7, 2013.
    Albert Stevens, pro se.
   KHOUZAM, Judge.

Albert Stevens appeals the order summarily denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm but remand for correction of two scrivener’s errors.

First, Stevens’ judgment incorrectly cites to the felony murder statute even though Stevens actually pleaded to second-degree murder with a firearm. Relying on the incorrect judgment, Stevens asserted that he entered a no contest plea to felony murder. However, the plea form and the plea hearing transcript reveal that Stevens was originally charged with first-degree murder but entered a plea to second-degree murder with a firearm. Neither the transcript nor the plea form contains any mention of felony murder. We directed the clerk of court to supplement the record with Stevens’ judgment. It states that Stevens pleaded to “lesser 2nd Degree murder w/Firearm,” but it cites the felony murder statute. The citation of the felony murder statute is clearly a scrivener’s error that must be corrected on remand.

The other scrivener’s error is on Stevens’ sentence. The trial court imposed a twenty-five-year minimum mandatory term as part of Stevens’ sentence, but it incorrectly checked the capital offense provision on the written sentence in an attempt to reflect that term. This scrivener’s error must also be corrected on remand.

Accordingly, we affirm the order denying Stevens’ postconviction motion but we remand for correction of these two scrivener’s errors.

Affirmed; remanded with directions.

ALTENBERND and MORRIS, JJ., Concur.


author: WOLF, J. BENTON, C.J.,

text:
    Jimmy MOORE, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D10-4052.
    District Court of Appeal of Florida, First District.
    June 10, 2013.

      Nancy A. Daniels, Public Defender, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant seeks review of a judgment and sentence for second-degree murder and home invasion robbery. He raises two issues on appeal. We affirm the first issue without discussion. In his second issue, appellant argues the trial court committed fundamental error in instructing the jury on the lesser-included offense of manslaughter because the instruction required the jury to find appellant intentionally caused the death of the victim, and because it failed to inform the jury that appellant could not be guilty of manslaughter if the Wiling was either justifiable or excusable homicide. We affirm as to the portion of the instruction addressing intent because appellant affirmatively agreed to that portion of the instruction. However, we are constrained to reverse as to the failure to instruct on justifiable or excusable homicide in accordance with this court’s decision in Beckham v. State, 884 So.2d 969 (Fla. 1st DCA 2004), because defense counsel did not affirmatively agree to an instruction that he was aware was incomplete. Therefore, we affirm appellant’s conviction for home invasion robbery, reverse his conviction for second-degree murder, and remand.

However, we also certify two questions of great public importance. Because we believe that a defendant should not receive a new trial based on an unobjected-to erroneous instruction concerning a matter that was not in dispute and could not have reasonably affected the verdict, we certify a question asking the supreme court to readdress its decision in State v. Lucas, 645 So.2d 425 (Fla.1994). We also certify a question asking the court to clarify to what extent counsel must actually be aware that an instruction is erroneous in order to waive fundamental error pursuant to Lucas.

1. Facts

Appellant was charged with first-degree murder and home invasion robbery. The evidence presented at trial demonstrated that the victim’s hands were bound, and he was killed by blunt force trauma to the head and neck. Appellant’s defense was that he was out of town at the time the incident occurred and that someone else perpetrated the killing. The trial court instructed on first-degree murder, as well as the lesser included offenses of second-degree murder and manslaughter. During the charge conference, the trial court and the State expressed concern that the State’s proposed jury instruction for manslaughter erroneously required a finding of intent, and the court offered to strike the intent language. Appellant’s counsel did not respond. Later during the charge conference, the parties referenced what appears to be the 2008 amended version of the standard jury instruction on manslaughter, which required the jury to find the defendant “intentionally caused the death of’ the victim. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403 (Fla.2008). The State suggested using the intent language from the standard jury instruction, and appellant’s counsel responded, “I’m agreeing with [the State], intentionally caused the death under the manslaughter instruction.”

The State then read out loud the agreed-upon instruction to ensure it was correct. It stated in full:

To prove the crime of manslaughter, the State must prove the following two elements beyond a reasonable doubt:
Number One, [the victim] is dead.
Number Two, [appellant] intentionally caused the death of [the victim].
In order to convict of manslaughter by intentional act, it is not necessary for the State to prove that [appellant] had a premeditated intent to cause death, only an intent to commit an act which caused death.

The trial court asked appellant’s counsel if he agreed with the instruction, and he responded that he did. The court then asked, “Not requesting anything else regarding that?” He responded, “No.” Later in the proceedings, the trial court gave appellant’s counsel a printed copy of the instruction that would be read to the jury, and again he stated he had no objection. The trial court instructed the jury on manslaughter as agreed by the parties, without objection. The jury found appellant guilty of the lesser included offense of second-degree murder as well as home invasion robbery.

2. Manslaughter Instruction — Intent

Appellant argues the language in the manslaughter instruction stating that the jury was required to find he “intentionally caused the death” of the victim was error because the offense of manslaughter does not require an intent to kill. Appellant is correct. In State v. Montgomery, the supreme court found the 2006 amended version of the standard jury instruction on manslaughter was error because it required the jury to find the “[defendant intentionally caused the death” of the victim. 39 So.3d 252, 256 (Fla.2010). Further, Montgomery found this error to be fundamental unless manslaughter is two or more degrees removed from the crime for which the defendant is ultimately convicted. Id. at 259. Later in Riesel v. State, this court found the 2008 amended version of the standard jury instruction was also error because it was “not materially different” from the one considered in Montgomery, “even though the instruction later provided that the jury was to find only an intent to commit an act which caused the victim’s death.” 48 So.3d 885, 886 (Fla. 1st DCA 2010).

Here, appellant was convicted of second-degree murder, which is only one step removed from manslaughter. Thus, this error would be fundamental pursuant to Montgomery and Riesel, had counsel not specifically agreed to the instruction. It is well-established that “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’” Ray v. State, 403 So.2d 956, 960 (Fla.1981). “[Fundamental error may be waived where defense counsel requests an erroneous instruction.” Armstrong v. State, 579 So.2d 734, 735 (Fla.1991).

Here, the trial court specifically brought to counsel’s attention the problem of the intent language in the proposed jury instruction and offered to strike that language. However, counsel specifically requested the language from the standard jury instruction that erroneously instructed the jury that manslaughter required an intent to kill. Thereafter, the trial court gave counsel additional opportunities to object, but he stated he agreed with the instruction. Therefore, appellant waived this error.

3. Manslaughter Instruction— Justifiable or Excusable Homicide

Appellant also argues the manslaughter instruction given by the trial court constituted fundamental error because it failed to instruct the jury that he could not be guilty of manslaughter if the killing was either justifiable or excusable homicide. We are constrained to agree because of the supreme court’s holding in Lucas and the decision of this court in Beckham.

In Lucas, the supreme court explained that “because manslaughter is a ‘residual offense, defined by reference to what it is not,’ a complete instruction on manslaughter requires an explanation that justifiable and excusable homicide are excluded from the crime.” 645 So.2d 425, 427 (Fla.1994) (quoting Stockton v. State, 544 So.2d 1006, 1008 (Fla.1989)). Lucas considered a certified question from this court asking if the failure to instruct on justifiable or excusable homicide was fundamental error even where the evidence did not support these defenses. Id. See also Lucas v. State, 630 So.2d 597, 599 (Fla. 1st DCA 1993). The supreme court answered the question in the affirmative, holding the “failure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder.” Lucas, 645 So.2d at 427. Lucas found “[t]he only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.” Id. (citing Armstrong v. State, 579 So.2d 734 (Fla.1991)).

Here, the manslaughter instruction failed to instruct the jury on justifiable or excusable homicide. Therefore, pursuant to Lucas, it was fundamental error. Whether or not appellant waived this error is a closer issue.

The supreme court discussed the waiver of fundamental error in Ray, 403 So.2d 956. In Ray, the defendant argued the trial court committed fundamental error by instructing on a lesser included offense that was not, in fact, a lesser included offense of the crime charged. Id. The charge conference was not transcribed, so the court ordered a reconstruction. Id. at 958. Defense counsel neither admitted nor denied requesting the lesser included offense but stated that upon the court’s announcement that the charge would be read, neither counsel objected to or commented on the charge. Id.

Ray found the “failure to object is a strong indication that, at the time and under the circumstances, the defendant did not regard the alleged fundamental error as harmful or prejudicial.” Id. at 960. Further, as noted above, Ray found “ ‘where the trial judge has extended counsel an opportunity to cure any error, and counsel fails to take advantage of the opportunity, such error, if any, was invited and will not warrant reversal.’” Id. (quoting Sullivan v. State, 303 So.2d 632, 635 (Fla.1974)). Therefore, the court held, “it is not fundamental error ... [if] defense counsel requested the improper charge or relied on that charge as evidenced by argument to the jury or other affirmative action.” Id. at 961 (emphasis added). Ray agreed with the defendant that because the “record is totally silent as to whether Ray’s counsel requested or depended on the instruction ... no waiver has been shown [in the instant case],” and “[o]n these facts, silence alone is not sufficient to demonstrate waiver.” Id.

Later in Armstrong, 579 So.2d at 735, the supreme court found the failure to instruct on justifiable or excusable homicide was error, but counsel waived that error. Armstrong noted the court found in Ray that “fundamental error may be waived where defense counsel requests an erroneous instruction.” Id. Armstrong found the Ray “analysis applies here. Counsel requested the limited instruction in order to tailor it to the defense that the killing was accidental. By affirmatively requesting the instruction he now challenges, Armstrong has waived any claim of error.” Id. (emphasis added).

Further, in Lucas, the supreme court held it is “fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of either manslaughter or a greater offense not more than one step removed, such as second-degree murder. The only exception we have recognized is where defense counsel affirmatively agreed to or requested the incomplete instruction.” 645 So.2d at 427 (citing Armstrong, 579 So.2d 734) (emphasis added). In Lucas, “the [trial] court failed to explain” that manslaughter excluded justifiable or excusable homicide, and counsel “did not object to the omission.” Id. at 426. Lucas found the error was fundamental and required reversal. Id. at 427.

Thus, Ray, Armstrong, and Lucas found fundamental error is waived where counsel “requested,” “affirmatively agreed to” or “relied on” an erroneous instruction. However, it seems unclear from these opinions whether counsel must specifically request or agree to the erroneous portion of the instruction, or if it is sufficient for counsel to request or agree to the instruction as a whole. Further, it is unclear whether the record must demonstrate that counsel was aware of the error. This court has held that knowledge of the error is necessary to waive fundamental error.

In Black v. State, 695 So.2d 459, 460-61 (Fla. 1st DCA 1997), this court found a Lucas error in failing to instruct on excusable or justifiable homicide was not waived. There was no transcript of the charge conference, but the record reflected that after the instructions were read to the jury, the trial court stated, “ ‘Stipulation, gentlemen, that the instructions as given to the jury were as reviewed in the charge conference?’ Defense counsel answered Tes, sir, they were.’” Id. at 460. The Black court found, “[we] cannot agree that defense counsel’s statement to the court, simply acknowledging that the instructions as given to the jury were as reviewed at the charge conference, constituted an express waiver of, or an affirmative request to limit, the excusable homicide definitional instruction. At best, the record reflects that counsel failed to object to the incomplete instruction.” Id. at 461 (emphasis added). Black concluded, “[bjefore the exception recognized in Lucas can apply, defense counsel must be aware that an incorrect instruction is being read and must affirmatively agree to, or request, the incomplete instruction.” Id. (emphasis added).

Similarly in Beckham v. State, 884 So.2d 969, 971 (Fla. 1st DCA 2004), this court again found the failure to instruct on justifiable or excusable homicide was fundamental error, relying on Lucas. In Beck-ham, the court asked counsel to “go through [the jury instructions] and make sure that they are as you have agreed.” Id. Later the same day, the prosecutor stated he had provided a copy to defense counsel, who stated that he was ready to proceed. Defense counsel did not object. Id. Beckham concluded “[t]he record does not show that defense counsel was aware of the incomplete instruction and affirmatively agreed to it. Accordingly, the Armstrong exception is inapplicable to these facts.” Id. at 973. (emphasis added).

In two recent cases, however, this court has not required the knowledge component. In Calloway v. State, 37 So.3d 891, 892 (Fla. 1st DCA 2010), the defendant raised a similar argument to the one raised in Ray that the jury was instructed on an uncharged offense, which constituted fundamental error. At the outset of the opinion, the Calloway court affirmed the defendant’s conviction finding “the trial court properly instructed the jury.” Id. Further, Calloway found there were “at least five flaws in the defendant’s logic which we have set out below. In the first section, we explain that [the court did not instruct on an uncharged offense].... In the last four sections, we explain why we would affirm the defendant’s conviction even if he were correct in arguing” the jury instruction was error. Id. at 893.

In the last section, this court found any error was waived because “the trial court read a standard jury instruction the defendant expressly agreed to on two separate occasions.... Here, the defendant did not object.... In fact, at both the charge conference and immediately after the instructions were read to the jury, the defendant specifically agreed to the instructions and stated he had no objections to them as proposed and as read.” Id. at 896-97 (emphasis added). Relying on Ray, Calloway found that “where a trial court has extended counsel an opportunity to cure an error, and counsel fails to take advantage of such an opportunity, the error is considered acquiesced to and does not warrant reversal.” Id. (citing Ray, 403 So.2d 956 at 960). This court further explained that “[t]o reverse under these facts would guarantee a defendant a new trial anytime there was any error in an instruction. The consequence of such a rule would essentially obligate a defense attorney to stand mute and, if necessary, agree to an erroneous instruction where, as here, the allegedly faulty instruction does not involve an issue in dispute.” Id. at 897. Calloway held, “under such precedent, an attorney who brings a faulty jury instruction to the court’s attention or refuses to agree to an instruction that misstates the law would sacrifice his client’s opportunity for a second trial and would risk being found incompetent as a consequence.” Id.

Thus, it seems Calloway found waiver without any indication that counsel was aware the instruction contained the alleged error that was raised on appeal. However, Calloway is distinguishable from the case at hand. Calloway found the jury instruction was not fundamental error. Further, Calloway found the allegedly erroneous instruction did “not involve an issue in dispute.” Id. at 897. In contrast here, we are constrained by Lucas to find that the failure to instruct on justifiable or excusable homicide is not subject to a harmless-error analysis, even where there was no dispute as to that issue. Lucas, 645 So.2d at 427.

Most recently in Joyner v. State, 41 So.3d 306 (Fla. 1st DCA 2010), this court relied on Calloway to find a Montgomery error was waived. The defendant argued the trial court’s use of the standard jury instruction on manslaughter was fundamental error pursuant to Montgomery, 39 So.3d 252, because it erroneously required a finding of intent to kill. Joyner found “[t]his case is distinguishable from State v. Montgomery because Joyner was convicted [of second-degree murder] as charged, rather than for one of the lesser included offenses.” Id. at 306. “In addition,” Joyner found the “instructions given in this case included an instruction on manslaughter by culpable negligence,” which rendered the Montgomery error not fundamental. Id. at 306-07.

“Finally,” Joyner found the case was distinguishable from Montgomery because “the defense not only failed to object to the standard jury instruction on manslaughter, he specifically agreed to that instruction at the charging conference and incorporated that instruction into his closing argument to the jury.” Id. (emphasis added). Here, however, there was no indication that counsel relied on the erroneous instruction. Therefore, Calloway and Joyner are distinguishable, and we are bound by Black and Beckham.

In this case, appellant “affirmatively agreed” to the manslaughter instruction here, which was incomplete. As discussed above, counsel and the court discussed the contents of the manslaughter instruction at length, and appellant repeatedly stated he agreed with the version that was read to the jury. Further, in deciding which version to read to the jury, he reviewed and relied on the standard jury instruction, which includes an instruction on'justifiable and excusable homicide. See In re Standard Jury Instructions in Criminal Cases-Report No. 2007-10, 997 So.2d 403. However, he repeatedly agreed to use the version that was read to the jury, which lacked the instruction on justifiable or excusable homicide. The court even specifically asked appellant’s counsel if he was “requesting anything else regarding that” instruction, and he responded that he was not. As such, he “affirmatively agreed” to the instruction.

However, there was no discussion below as to whether the manslaughter instruction should inform the jury on justifiable or excusable homicide, nor was there any indication that counsel was alerted to the fact the instruction was incomplete, which distinguishes this issue from the error in the intent language discussed above. Thus, while it is clear counsel affirmatively agreed to the manslaughter instruction as read to the jury, he did not specifically and affirmatively agree to exclude the required instruction on justifiable or excusable homicide. Instead, he failed to object to that error. Merely failing to object cannot waive fundamental error. “Any discussion of fundamental error presupposes a failure to lodge a contemporaneous objection.” Paul v. State, 63 So.3d 828, 829 (Fla. 5th DCA 2011). As such, we find appellant did not waive the fundamental error of the failure to instruct the jury that it could not find him guilty of manslaughter if the killing was justifiable or excusable homicide. However, because it is unclear to what extent Lucas requires counsel to affirmatively agree to an erroneous instruction, and whether the record must reflect counsel knew the instruction was erroneous in order to waive fundamental error, we certify a question as one of great public importance as to this issue.

Because we find this error was not waived, we are required to reverse pursuant to Lucas, which held the “failure to give a complete instruction on manslaughter during the original jury charge is fundamental error which is not subject to harmless-error analysis where the defendant has been convicted of ... a greater offense not more than one step removed” from manslaughter. 645 So.2d at 427. However, if we were not constrained by Lucas, we would find the error was not fundamental because there was no dispute in the trial as to whether the killing was justifiable or excusable homicide.

Lucas seems to be at odds with the well-established rule that “for jury instructions to constitute fundamental error, 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.’” Garzon v. State, 980 So.2d 1038, 1042 (Fla.2008) (quoting State v. Delva, 575 So.2d 643, 645 (Fla.1991)). “Further, ‘fundamental error occurs only when the omission is pertinent or material to what the jury must consider in order to convict. Failing to instruct on an element of the crime over which the record reflects there was no dispute is not fundamental error. ...’ ” Id.

Here, the record reflects there was no dispute as to whether the killing was justifiable or excusable homicide. Appellant’s theory of defense was identity. Therefore, that omission from the jury instruction was not pertinent or material to what the jury needed to consider in order to convict, and it cannot be said that the guilty verdict could not have been obtained without the omission. Further, because there was no dispute regarding justifiable or excusable homicide, to reverse in this case does not serve the ends of justice. Instead it wastes valuable time and resources due to an error that could not have possibly affected the jury’s verdict. For these reasons, we ask the supreme court to reconsider its decision in Lucas and certify a question of great public importance.

We, therefore, certify the following two questions:

IN ORDER FOR COUNSEL TO WAIVE AN ERROR IN A JURY INSTRUCTION THAT WOULD OTHERWISE BE FUNDAMENTAL, IS IT ONLY NECESSARY THAT COUNSEL AFFIRMATIVELY AGREE TO THE INSTRUCTION, OR IS IT ALSO NECESSARY FOR COUNSEL TO AFFIRMATIVELY AGREE TO THE PORTION OF THE INSTRUCTION THAT IS ERROR AND/OR TO BE AWARE THAT THE INSTRUCTION IS ERRONEOUS?
WHEN A DEFENDANT IS CONVICTED OF EITHER MANSLAUGHTER OR A GREATER OFFENSE NOT MORE THAN ONE STEP REMOVED, DOES THE FAILURE TO INSTRUCT THE JURY ON JUSTIFIABLE OR EXCUSABLE HOMICIDE CONSTITUTE FUNDAMENTAL ERROR NOT SUBJECT TO A HARMLESS ERROR ANALYSIS EVEN WHERE THE RECORD REFLECTS THERE WAS NO DISPUTE AS TO THIS ISSUE AND THERE WAS NO EVIDENCE PRESENTED FROM WHICH THE JURY COULD FIND JUSTIFIABLE OR EXCUSABLE HOMICIDE?

For the reasons discussed above, we affirm the conviction for home invasion robbery, reverse the conviction for second-degree murder, and remand.

REVERSED IN PART, AFFIRMED IN PART, AND REMANDED.

SWANSON, J., concurs; BENTON, C.J., concurs in part and dissents in part with opinion.

BENTON, C.J.,

concurring in part and dissenting in part.

I concur in certifying both questions, but respectfully dissent from today’s decision insofar as it reverses appellant’s conviction for second-degree murder.

As the majority opinion explains, the defense at trial was alibi. There was no contention that, or any issue as to whether, the perpetrator who, in the course of a home invasion robbery, bound “the victim’s hands ... and ... killed [him] by blunt force trauma to the head and neck,” ante p. 3, acted justifiably or with legal excuse. He did not. As the majority opinion also explains, defense “counsel and the court discussed the ... manslaughter instruction at length, and appellant's counsel] repeatedly stated he agreed with the version that was read to the jury.” Ante p. 14. In the circumstances, I would affirm the murder conviction.

      . We note the Second District certified conflict with Riesel, 48 So.3d 885, and the supreme court has granted review. Daniels v. State 72 So.3d 227 (Fla. 2d DCA 2011), rev. granted 79 So.3d 744 (Fla.2012).