author: PER CURIAM. PARIENTE, J.,

text:
    Kemar ROCHESTER, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-1932.
    Supreme Court of Florida.
    June 5, 2014.
    Carol Stafford Haughwout, Public Defender, and Ian Eric Seldin, Assistant Public Defender, West Palm Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Consiglia Terenzio, Bureau Chief, and Richard Chambers Valun-tas, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   PER CURIAM.

This case is before the Court for review of the Fourth District Court of Appeal’s decision in Rochester v. State, 95 So.3d 407 (Fla. 4th DCA 2012), which the Fourth District certified is in direct conflict with the decision of the Second District Court of Appeal in Montgomery v. State, 36 So.3d 188 (Fla. 2d DCA 2010). For the reasons explained below, we approve the Fourth District’s holding that section 775.082(3)(a)4., Florida Statutes (2008), imposes a mandatory minimum sentence of twenty-five years’ imprisonment for adults convicted of lewd or lascivious molestation of a child under the age of twelve.

I. BACKGROUND

Kemar Rochester was convicted of lewd or lascivious molestation of a child under the age of twelve in violation of section 800.04(5)(b), Florida Statutes (2008). Pri- or to sentencing, Rochester filed a motion seeking a downward departure sentence pursuant to section 921.0026(2)©, Florida Statutes (2008), which provides for downward departures in sentencing if certain mitigating circumstances are present. The trial court found that it had no discretion to impose a downward departure sentence, even though it was inclined to do so, because section 775.082(3)(a)4. imposed a mandatory minimum sentence of twenty-five years’ imprisonment for violations of section 800.04(5)(b). Therefore, the trial court denied Rochester’s motion and sentenced him to twenty-five years in prison.

The Fourth District affirmed the trial court, concluding that the legislature intended to impose a mandatory minimum sentence of twenty-five years’ imprisonment in section 775.082(3)(a)4. Rochester, 95 So.3d at 410. In so holding, the Fourth District certified conflict with the Second District’s decision in Montgomery, which concluded that the legislature did not intend to impose a mandatory minimum sentence in this section. Id. at 411.

II. ANALYSIS

Lewd or lascivious molestation of a child under twelve by an adult is “a life felony, punishable as provided in s. 775.082(3)(a)4.” § 800.04(5)(b), Fla. Stat. (2008). Section 775.082(3)(a)4. provides as follows:

(3) A person who has been convicted of any other designated felony may be punished as follows:
(a) ....
4.a. Except as provided in sub-sub-paragraph b., for a life felony committed on or after September 1, 2005, which is a violation of s. 800.04(5)(b), by:
(I) A term of imprisonment for life; or
(II) A split sentence that is a term of not less than 25 years’ imprisonment and not exceeding life imprisonment, followed by probation or community control for the remainder of the person’s natural life, as provided in s. 948.012(4).
b. For a life felony committed on or after July 1, 2008, which is a person’s second or subsequent violation of s. 800.04(5)(b), by a term of imprisonment for life.

The certified conflict issue in this case is whether the twenty-five year sentence set forth in subsection (3)(a)4.a(II) above is a mandatory minimum sentence. This involves an issue of statutory interpretation and is subject to de novo review. See Johnson v. State, 78 So.3d 1305, 1310 (Fla.2012) (“Judicial interpretations of statutes are pure questions of law subject to de novo review.”). When construing a statute, we have stated that “ ‘[legislative intent guides statutory analysis, and to discern that intent we must look first to the language of the statute and its plain meaning.’ ” Tasker v. State, 48 So.3d 798, 804 (Fla.2010) (quoting Fla. Dep’t of Child. & Fam. Servs. v. P.E., 14 So.3d 228, 234 (Fla.2009)).

We find that, contrary to Rochester’s argument, the use of the term “may” in section 775.082(3) does not give the trial court the broad discretion to impose a downward departure sentence of less than twenty-five years’ imprisonment. Rather, when section 775.082(3)(a)4. is read as a whole, it is clear that the phrase “may be punished as follows” in subsection 775.082(3) is simply referring to the trial court’s discretion to choose among the two sentencing alternatives listed in section 775.082(3)(a)4. — life imprisonment or a sentence of not less than twenty-five years followed by community control or probation for the rest of the offender’s life. Furthermore, the use of the phrase “of not less than 25 years” establishes that the twenty-five year sentence set forth in this section is a mandatory minimum sentence. See Stoletz v. State, 875 So.2d 572, 576 (Fla.2004) (acknowledging that the phrase “for not less than 5 years” in section 322.28(2)(a)(2), Florida Statutes (1999), established a mandatory minimum period for license revocation). Therefore, while the statute does give the trial court some discretion in which sentence it chooses to impose for violations of section 800.04(5)(b), under the plain meaning of the statutory language the trial court does not have the discretion to impose a sentence below the twenty-five year minimum set forth in section 775.082(3)(a)4.a(II).

III. CONCLUSION

For the reasons explained above, we approve the decision of the Fourth District in Rochester and disapprove the Second District’s decision in Montgomery to the extent that it is inconsistent with this opinion.

It is so ordered.

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

PARIENTE, J., dissents with an opinion.

PARIENTE, J.,

dissenting.

I dissent because the applicable statute does not preclude trial courts from imposing a downward departure sentence. Specifically, unlike a “mandatory minimum” statute that requires the defendant to serve a minimum sentence day-for-day, section 775.082(3)(a)4., Florida Statutes (2008), does not contain any language indicating that the twenty-five-year sentencing minimum it sets forth is a “mandatory minimum” sentence that must be served day-for-day, or that the application of gain time or other early release schemes is prohibited.

In my view, because there is no requirement that the defendant serve the twenty-five-year minimum sentence provided in section 775.082(3)(a)4. day-for-day, the Fourth District Court of Appeal erred in concluding that the trial court, which considered the twenty-five-year sentence in this case to be “extremely excessive,” was precluded from downwardly departing. Accordingly, Rochester — who was initially offered a sentence of seven and a half years by the State — should be resen-tenced.

At the heart of this case rests a question of statutory construction regarding whether the sentencing minimum provided by section 775.082(3)(a)4. is a “mandatory minimum” sentence that must be served day-for-day. Contrary to the majority’s construction of the statute, nothing within section 775.082(3)(a)4. expressly precludes a trial court from imposing a downward departure sentence. In addition, as even the State concedes in this proceeding, nothing within the statute precludes the defendant from receiving gain time, as in other statutes that provide for a “mandatory minimum” sentence that must be served day-for-day, and this Court should at least make that point clear. Absent these express prohibitions against a downward departure sentence and the application of gain time, the trial court was not prohibited from downwardly departing from the minimum twenty-five-year sentencing option provided in the statute, as the majority erroneously concludes, and the defendant’s sentence is subject to gain time and other possible early release schemes.

Although the majority’s statutory construction analysis focuses solely on the impact of the word “may” in the statute, the specific question for this Court to resolve is whether the Legislature has expressly precluded trial courts from imposing a downward departure sentence of less than the twenty-five-year sentencing minimum provided in the statute — assuming the statutory requirements for a downward departure sentence are satisfied — and whether the defendant’s sentence is subject to gain time. The Fourth District and this Court have determined that the use of the word “may” within the statute is permissive in allowing a trial court the choice of only the sentencing alternatives within section 775.082(3)(a)4. itself, which requires either a sentence of life imprisonment or a sentence of not less than twenty-five years followed by probation or community control for the remainder of the defendant’s natural life. See majority op. at 4; Rochester v. State, 95 So.3d 407, 410 (Fla. 4th DCA 2012). I disagree with this construction that the two sentences provided in the statute are the only sentencing options for a trial court to consider.

To the contrary, as is generally true with sentencing statutes unless otherwise expressly stated, nothing within section 775.082(3)(a)4. precludes a trial court from imposing a downward departure sentence if the statutory criteria of sections 921.0026 and 921.00265, Florida Statutes, concerning the requirements and mitigating circumstances for which a departure is reasonably justified, are met. This is because, although the sentencing minimum mandated by section 775.082(3)(a)4. is twenty-five years, the sentence is not a “mandatory minimum” sentence that must be served day-for-day such as those set forth in, for example, sections 775.082(9)(b) or 893.135(3), Florida Statutes, which contain specific language indicating that the sentence is a “mandatory minimum” or that the defendant is not eligible for any form of early release. See § 775.082(9)(b), Fla. Stat. (2008) (“A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Any person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).

While the majority acknowledges that the certified conflict issue in this case concerns whether the twenty-five-year sentencing minimum set forth in section 775.082(3)(a)4. is a “mandatory minimum,” the majority nevertheless fails to address the interrelated issue of whether the sentence is subject to gain time, as the Second District Court of Appeal concluded in the certified conflict case by determining that the statute does not provide for a “mandatory minimum” sentence that must be served day-for-day. See Montgomery v. State, 36 So.3d 188, 188-89 (Fla. 2d DCA 2010). I disagree with the majority’s decision not to reach this issue despite the Fourth District in Rochester certifying conflict with the Second District in Mont gomery and the State actually conceding in this case that the defendant’s sentence is subject to the application of gain time and other forms of discretionary early release.

Specifically, the State took the position both in its brief and at oral argument that although the minimum term that a trial court is required by statute to impose is, in the State’s view, a mandatory sentence of twenty-five years that cannot include a downward departure, the sentence is not a “mandatory minimum” sentence in the sense that it precludes the application of gain time. See Answer Brief of Respondent at 12, Rochester v. State, No. SC12-1932, 140 So.3d 973, 2014 WL 2516154 (Fla. June 3, 2013) (“The plain language in section 775.082(3)(a)4, however, does not preclude the application of gain time.”). This Court does not reach that question, stating that it was not addressed by the Fourth District even though the Fourth District in Rochester certified conflict with the Second District’s decision in Montgomery that concerned whether a defendant’s sentence under section 775.082(3)(a)4. was a “mandatory minimum” sentence for purposes of gain time.

I would at least reach the issue and explain the differences between a “mandatory minimum” sentence that must be served day-for-day and a statutory sentencing minimum that need not, especially since the Second District’s opinion, with which the Fourth District certified conflict, held that the twenty-five-year minimum sentence provided in section 775.082(3)(a)4. was not a “mandatory minimum” precluding the application of gain time:

The State concedes, and we agree, that Montgomery’s sentence is not a minimum mandatory sentence. If the legislature intended to impose a minimum mandatory sentence, the statute would have included specific language to that effect. See §§ 316.1935(6), Fla. Stat. (2008); 775.087(2) & (3); 784.07(3)(b), Fla. Stat. (2008); 794.0115(7), Fla. Stat. (2008) (providing that a defendant “is not eligible for statutory gain-time under s. 944.275 or any form of discretionary early release, other than pardon or executive clemency or conditional medical release under s. 947.149,” prior to serving the minimum sentence). See also § 775.082(9)(b) (“A person sentenced under paragraph (a) shall be released only by expiration of sentence and shall not be eligible for parole, control release, or any form of early release. Tiny person sentenced under paragraph (a) must serve 100 percent of the court-imposed sentence.”); § 893.135(3), Fla. Stat. (2008) (“A person sentenced to a mandatory minimum term of imprisonment under this section is not eligible for any form of discretionary early release, except pardon or executive clemency or conditional medical release under s. 947.149, prior to serving the mandatory minimum term of imprisonment.”).
Moreover, if there is any ambiguity in the language of section 775.082(3)(a)(4)(a)(II), we must construe it in favor of the defendant. See § 775.021(1). Accordingly, we affirm Montgomery’s judgment and sentence but note that his sentence does not provide for a minimum mandatory term of imprisonment.

Montgomery, 36 So.3d at 188-89. For the same reasons set forth by the Second District, I would hold that section 775.082(3)(a)4. does not provide for a “mandatory minimum” term of imprisonment that precludes the application of gain time. Because the statute does not set forth a “mandatory minimum” sentence that must be served day-for-day, the statute likewise does not preclude the imposition of a downward departure sentence, which the trial court had the discretion to impose in consideration of the facts of the crime pursuant to section 921.0026(2)(j).

Although this Court and the Fourth District did not consider the facts of this crime relevant, the facts do illustrate the excessiveness of the ultimate sentence imposed and help to explain why the trial court would have been justified in considering a downward departure. Before trial, Rochester was offered two plea deals. Initially, the State proposed a reduced charge and offered him ten years in prison followed by five years of probation. However, Rochester did not accept the deal, and after further negotiation, the State made another plea offer for seven and a half years in prison followed by seven and a half years of sex offender probation, which Rochester also declined.

The evidence at trial established that Rochester was visiting the home of JC, the victim, when he asked JC’s mother if he could go outside and look at the swimming pool. JC, who was nine years old at the time, was in the backyard when Rochester came outside to look at the swimming pool. JC testified that she was alone with Rochester in the backyard when he asked her “if [she] could keep a secret” and lifted her up, touched her on her clothed genitalia and clothed buttocks, and asked her to not tell anyone.

In a police recorded phone conversation with JC’s mother, Rochester admitted that he touched JC’s clothed genitalia, but not her buttocks. Further, in a videotaped confession to police, which was played for the jury at trial, Rochester admitted that he touched JC’s clothed genitalia. He stated that he touched her for “no more than ten seconds” and admitted that his fingers were moving “a little bit” when he did it, but that he was not aroused by the touching and “wasn’t thinking anything” when he touched her. The explanation Rochester gave for his behavior, in his interview with police, was that “the devil got into [his] spirit or something and made [him] do it,” and that his spirit had been attacked and he was weak. He also stated that he had low self-esteem because he was overweight and that he had apologized to JC’s mom and promised it would not happen again.

Prior to sentencing, Rochester filed a motion for a downward departure sentence, pursuant to section 921.0026(2)(j), which provides that “[m]itigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to ... [t]he offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026, Fla. Stat. Rochester claimed that he qualified for this downward departure based on the fact that the crime met all three statutory criteria: it was committed in an unsophisticated manner, it was an isolated incident, and he had shown remorse.

Rochester further argued that the trial court should not impose the statutory sentence of twenty-five-years’ imprisonment because such a severe disposition for a first-time offense was fundamentally unfair, contending that the trial court had the discretion to impose a sentence of less than twenty-five years if it deemed it to be just. The trial court determined that the twenty-five-year sentence, followed by probation for the remainder of Rochester’s life, was required pursuant to section 775.082(3)(a)4., and denied Rochester’s motion for a downward departure sentence. However, prior to orally pronouncing the sentence, the trial judge offered the following commentary regarding the mitigating circumstances in this case: “I think that 25 years is extremely excessive on a case like this. If I had any authority whatsoever to go below, I would certainly go below. I don’t think I have any discretion in this case.”

I disagree that the trial court did not have any discretion to downwardly depart from the minimum twenty-five-year sentence provided in the statute. Unlike other statutes that make a sentencing minimum a “mandatory minimum” that must be served day-for-day, there is no language in section 775.082(3)(a)4. indicating that the twenty-five-year sentencing minimum is a “mandatory minimum” or that the application of gain time or other early release schemes is prohibited. Accordingly, I would quash the Fourth District’s decision in Rochester, approve the Second District’s decision in Montgomery, and remand this case so that Rochester can be resentenced in a manner that more closely comports with the trial court’s conclusion that twenty-five-years’ imprisonment “is extremely excessive” in this case.

      . We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

      . Section 921.0026, Florida Statutes (2008), "applies to any felony offense, except any capital felony, committed on or after October 1, 1998,” and its subsection (2) provides as follows: "Mitigating circumstances under which a departure from the lowest permissible sentence is reasonably justified include, but are not limited to: .... (j) The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.”

      . We do not reach the State’s argument that, while imposing a mandatory minimum sentence of twenty-five years’ imprisonment, section 775.082(3)(a)4. does not preclude the application of gain time. This issue was not addressed by the Fourth District and is not properly before this Court.


source: Caselaw Access Project

author: LABARGA, J. POLSTON, C.J., PARIENTE, J.,

license: Public Domain

text:
    Dean Kenneth ROCKMORE, Petitioner, v. STATE of Florida, Respondent.
    No. SC12-577.
    Supreme Court of Florida.
    June 5, 2014.

      James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Pamela Jane Roller, Assistant Attorney General, and Wesley Harold Heidt, Bureau Chief, Daytona Beach, FL, for Respondent.
   LABARGA, J.

Dean Kenneth Rockmore seeks review of the Fifth District Court of Appeal’s decision in Rockmore v. State, 114 So.3d 958 (Fla. 5th DCA 2012), on the ground that it expressly and directly conflicts with the Second District Court of Appeal’s decision in Peterson v. State, 24 So.3d 686 (Fla. 2d DCA 2009), on the same question of law. Specifically, the district courts reached conflicting decisions concerning the necessity of a special jury instruction where the defendant’s theory of defense to a robbery charge is that he abandoned the stolen property prior to threatening or using force. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons set forth below, we approve the result of the Fifth District’s decision affirming Rockmore’s conviction.

BACKGROUND

The State charged Rockmore with robbery with a firearm. At trial, it was undisputed that Rockmore stole a package of T-shirts and a package of socks from Wal-mart. It was also undisputed that Wal-mart loss prevention agent Stephen Arnold, who had observed Rockmore conceal the shirts and socks under his clothing and exit the store without paying, chased Rockmore across several parking lots in an attempt to retrieve the stolen property and have Rockmore return to the store with him. However, it was disputed as to whether Rockmore’s actions during the chase elevated the theft to a robbery.

Arnold testified that he never lost sight of Rockmore during the pursuit and that when Rockmore was trying to remove his jacket, Arnold pulled on the jacket at the same time and the stolen shirts came out. When the shirts fell, Arnold testified that Rockmore told him, “There’s your merchandise .... I’m not going to come with you, I’m not.” However, Arnold said that he kept following Rockmore because he knew that Rockmore still had the socks and because he wanted to get Rockmore’s information. Arnold testified that Rock-more eventually reached a parked car with a man and a woman inside. Arnold testified that before Rockmore entered the car, Rockmore turned to face him from five to ten feet away, lifted his shirt, displayed a gun that was tucked into his waistband, and said “Let it go, let it be, you don’t want none.” At that point, Arnold said that he backed off because he was scared, and Rockmore left in the car.

In contrast, Rockmore testified that the socks fell out of his clothing while he was running through the grass, that he took off his jacket because it was hot, and that he threw the package of shirts down. After the shirts fell, Rockmore testified that he told Arnold, “Look, give me a break, man. You got your S back.” Rockmore also testified that he did not have any of the stolen merchandise on him by the time he got to the car. Though Rockmore testified that he could not remember if he said anything else to Arnold before he got into the car, he denied having a weapon, threatening Arnold with a weapon, and committing a robbery. Testimony at trial established that police recovered Rock-more’s jacket and the package of shirts from the scene. However, the socks were never found.

After the State rested, Rockmore moved for a judgment of acquittal. He argued that he had abandoned the stolen merchandise before he allegedly threatened Arnold with a firearm; thus, the use of force was too remote from the taking to support a conviction under the robbery statute, which requires that the taking of property and the use of force constitute a continuous series of acts or events. The trial court denied the motion.

Before the case was submitted to the jury, Rockmore requested that, in addition to the standard robbery jury instruction, the trial court give a special jury instruction on abandonment similar to the instruction the Second District in Peterson approved as a correct statement of law. Specifically, the Second District held that Peterson’s theory of defense to the charge of robbery — that “he had transferred the stolen merchandise to [a] shopping basket that he abandoned before shoving his way out of the store” — and the evidence presented in that case entitled Peterson to the following special jury instruction: “[I]f it is established that the property was abandoned prior to the use of force then you must find the Defendant not guilty of a robbery.” Peterson, 24 So.3d at 688-89.

The trial court in this case gave the requested special instruction but, over Rockmore’s objection, modified it to require that the abandonment be voluntary and that the victim be aware of the abandonment, in order to establish the defense. As modified, the special instruction was given to the jury as follows:

If you find that the defendant took the merchandise without any use of force and had completely and voluntarily abandoned the property before he used any force and the victim was aware of such abandonment, then you should find the defendant not guilty of robbery with a firearm, deadly weapon, or weapon.

(Emphasis added). The jury convicted Rockmore of robbery with a firearm and, because Rockmore was a prison releasee reoffender, the trial court sentenced him to life.

Rockmore appealed his conviction to the Fifth District Court of Appeal, arguing that the trial court erred by denying his motion for judgment of acquittal and by improperly modifying his proffered abandonment instruction. The Fifth District rejected both arguments and affirmed Rockmore’s conviction. Rockmore, 114 So.3d at 959. In so holding, the Fifth District disagreed with the Second District’s decision in Peterson regarding the necessity for a special instruction on abandonment and acknowledged conflict with that decision. See Rockmore, 114 So.3d at 964.

Rockmore raises the same arguments in this Court. To resolve them, it is necessary to explain Florida’s robbery statute and the abandonment of property defense that several of our district courts have held precludes its application.

Florida’s Robbery Statute

Before 1987, Florida followed the common law rule for robbery, which required that the “ ‘force, violence, assault, or putting in fear’ must occur prior to or contemporaneous with the taking of property.” Royal v. State, 490 So.2d 44, 45 (Fla. 1986), superseded, by statute as recognized in Robinson v. State, 692 So.2d 883, 886 n. 9 (Fla.1997). Thus, under the former law, if violence was not used to take property, but was used to flee with the stolen property, there could be no robbery. See Royal, 490 So.2d at 45-46 (holding that shoplifters who pushed a detective, punched an employee, and displayed a firearm in order to escape with stolen property could not be convicted of robbery because the violence occurred after the taking). However, in 1987, the Legislature amended the robbery statute to prevent this result by “expand[ing] robbery to include force occurring in an attempt to take money or property, or in flight after the attempt or taking.” Rockmore, 114 So.3d at 963 (quoting Fla. H.R. Comm, on Robbery, HB 758 (1987) Staff Analysis 1 (final June 26, 1987) (on file with Comm.)).

Under current law, which is the same law that was in effect at the time of Roek-more’s crime, “robbery” is defined as

the- taking of money or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.

§ 812.13(1), Fla. Stat. (2013). The robbery statute further provides that “[a]n act shall be deemed ‘in the course of the taking’ if it occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (2013). Under the robbery statute, “[a]n act shall be deemed ‘in the course of committing the robbery’ if it occurs in an attempt to commit robbery or in flight after the attempt or commission.” § 812.13(3)(a), Fla. Stat. (2013). In addition, the punishment for robbery is enhanced where “in the course of committing the robbery the offender carried a firearm.” § 812.13(2)(a), Fla. Stat. (2013).

The Abandonment of Property Defense

Several of our district courts of appeal have held that a defendant who uses force-after abandoning stolen property cannot be convicted of robbery because the robbery statute requires that the taking and the use of force constitute a continuous series of acts or events. For example, in State v. Baker, 540 So.2d 847 (Fla. 3d DCA 1989), the Third District relied on this rule to hold that the trial court properly dismissed a robbery charge. In Baker, the defendant shoplifted merchandise from a store in a shopping mall. Id. at 848. “Upon noticing the guards approaching him, the defendant put down the [merchandise] and began to run. The guards stopped the defendant, who put up a struggle, shouting that he be left alone and that he had a gun. At no time during the struggle did the defendant attempt to grab the abandoned [merchandise] and run; [it] remained on the floor.” Id. Based on these facts, the Third District held that the defendant did not commit robbery as a matter of law because he “took the property without any use of force and abandoned the property before he used force to flee from the security guards.” Id.

Similarly, in Simmons v. State, 551 So.2d 607 (Fla. 5th DCA 1989), the Fifth District held that the defendant’s robbery conviction could not stand. There, the undisputed facts established that the defendant shoplifted merchandise from a store, was apprehended by store employees, and was escorted back into the store. Once back in the store, “the defendant removed the merchandise from her person and threw it to the floor.” Id. at 608. Store employees then instructed the defendant to accompany them to the security office. Id. “Only then did the defendant begin to resist and she struggled with one of the employees.” Id. The Fifth District reversed the defendant’s robbery conviction because “[t]here was no relationship between the force used and the taking as required by the [robbery] statute.” Id.; see also Kimbrough v. State, 788 So.2d 421, 421 (Fla. 1st DCA 2001) (reversing the defendant’s robbery conviction based on insufficient evidence because “ ‘the taking was completed without any use of force and the property abandoned before any force was employed’ ”) (quoting Simmons, 551 So.2d at 608).

Likewise, in Garcia v. State, 614 So.2d 568 (Fla. 2d DCA 1993), the Second District reversed the defendant’s robbery conviction. There, the defendant “attempted] to throw a duffle bag filled with [stolen] merchandise over the [store’s] fence to his companion. When approached by the security guard, the two men abandoned the bag and ran.... In a nearby parking lot, [the defendant] slowed down and pointed a handgun at the pursuing security guard.” Id. at 569. The Second District held that, since the defendant “did not place the security guard in fear during a continuous series of acts or events in connection with the taking of property, he could not be convicted of robbery.” Id.

Decisions such as these led the Second District in Peterson to conclude that, where the facts are disputed as to whether the defendant abandoned the stolen property prior to threatening or using force, a special jury instruction is required to “inform the jury that if the property was abandoned prior to the use of force, under the law the taking and the use of force were not a continuous series of acts or events.” Peterson, 24 So.3d at 690. However, in Rockmore’s case, the Fifth District disagreed with the Second District “regarding the necessity and propriety of [this] special instruction.” Rockmore, 114 So.3d at 964.

ANALYSIS

Arguing that the abandonment of property defense applies in his case, Rock-more makes the same two arguments here that he made before the Fifth District. First, he contends that the trial court should have granted his motion for judgment of acquittal because, as a matter of law, his act of threatening Arnold with a firearm was too remote from the theft to constitute robbery. Alternatively, he argues that, at a minimum, he is entitled to a new trial because the trial court erred by modifying his proffered special instruction to require that the victim be aware of the abandonment, and that the error was not harmless. We review both issues de novo. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002) (“In reviewing a motion for judgment of acquittal, a de novo standard of review applies.”); see also Butler v. State, 493 So.2d 451, 453 (Fla.1986) (conducting a de novo review as to the propriety of a special jury instruction and whether an erroneous instruction constituted harmless error).

We agree with the Fifth District that neither argument entitles Rockmore to relief. First, because competent, substantial evidence supports his conviction for robbery with a firearm, we hold that the trial court properly denied Rockmore’s motion for judgment of acquittal. See Pagan, 830 So.2d at 803. Specifically, Rock-more’s victim testified that Rockmore threatened him with a gun while fleeing with stolen property. Though Rockmore’s version of the facts differed, the victim’s testimony is competent, substantial evidence from which the jury could conclude that Rockmore committed robbery with a firearm. See § 812.13(1), (2)(a), Fla. Stat. Therefore, the trial court properly denied Rockmore’s motion for judgment of acquittal.

Regarding Rockmore’s second argument that he is entitled to a new trial because the trial court modified his special requested instruction on abandonment, we disagree. While defendants are generally entitled to have the jury instructed on any defense recognized by Florida law, one of the threshold showings a defendant must make in order to receive a special jury instruction is that “the special instruction [i]s supported by the evidence.” Stephens v. State, 787 So.2d 747, 756 (Fla.2001) (listing this as one of the three things a defendant seeking a special instruction must prove).

We conclude that the evidence in Rockmore’s case does not entitle him to a special instruction of the type approved by the Second District in Peterson. Thus, Rockmore received the benefit of an instruction on abandonment to which he was not entitled. Unlike the facts in Peterson where there was evidence to support Peterson’s claim that he left the stolen property inside the store before fleeing, Rock-more admitted to fleeing from the store with stolen merchandise. Moreover, it was undisputed that the alleged threat occurred during a chase that immediately followed Rockmore’s theft. The victim testified that it was when both he and Rockmore were pulling on Rockmore’s jacket that the stolen shirts dropped to the ground. As Rockmore’s theft and threatened use of force constituted a continuous series of acts or events under Florida’s robbery statute, we decline to extend the abandonment of property defense as it has been applied in Peterson and other cases to the facts of this case.

Our district courts have only applied the abandonment of property defense where there was evidence that it was the thief who abandoned the property and thus broke the chain between the taking and the use of force. See, e.g., Peterson, 24 So.3d at 688-89 (holding special instruction on abandonment required where defendant argued that he left his shopping basket containing stolen property inside the store and then shoved his way outside); Garcia, 614 So.2d at 569 (reversing robbery conviction where, upon being discovered by a security guard, the defendant abandoned his attempt to throw a bag of stolen merchandise over a fence, left the stolen property behind and ran, but sometime later pointed a gun at the pursuing security guard); Simmons, 551 So.2d at 608 (reversing shoplifter defendant’s robbery conviction where, after being caught, she removed the stolen merchandise from her person and struggled with a store employee only after she was instructed to go to the store’s security office); Baker, 540 So.2d at 848 (holding trial court properly dismissed robbery charge where, upon being detected by security guards, shoplifter defendant placed stolen property on ground, never attempted to run with stolen property, and used force only in an attempt to avoid capture by the security guards); cf. Lemus v. State, 641 So.2d 177, 178-79 (Fla. 5th DCA 1994) (concluding that, where the defendant struggled with store employees while attempting to abandon stolen merchandise outside of a store, “it was a factual issue for the jury to determine whether or not there was a continuous series of acts or events to prove the elements of robbery”).

Competent, substantial evidence supported the conclusion that Rockmore failed to abandon the property. Thus, he received the benefit of a special instruction on abandonment that was not supported by the evidence, and the error was therefore harmless. See Marshall v. State, 604 So.2d 799, 803 (Fla.1992) (concluding that the trial court’s error in instructing the jury was harmless where it “inure[d] to the benefit of the defendant”). Because the evidence does not support the defense of abandonment, the trial court’s modification of the proffered special instruction to require that the victim be aware of the abandonment does not render it harmful, requiring a new trial.

CONCLUSION

For the foregoing reasons, we approve the result of the Fifth District’s decision affirming Rockmore’s conviction. Because we hold that the abandonment of property defense has no application to Rockmore’s case, we do not express any opinion concerning its application to different facts and leave it for our trial courts to determine whether the specific facts of the robbery cases before them warrant a special instruction on this defense.

It is so ordered.

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

CANADY, J., concurs in result.

POLSTON, C.J., concurs in part and dissents in part with an opinion, in which PARIENTE, J., concurs.

PARIENTE, J., concurs in part and dissents in part with an opinion.

POLSTON, C.J.,

concurring in part and dissenting in part.

I agree that the jury should have gotten the case to decide, but the trial court gave an erroneous jury instruction on abandonment that is not harmless. Therefore, I would quash the Fifth District’s decision affirming Rockmore’s conviction and remand for a new trial.

First, the majority’s conclusion that Rockmore’s abandonment defense was not supported by the evidence does not consider all the evidence by improperly focusing on the victim’s testimony to the exclusion of Rockmore’s. Under Rockmore’s version of events, once he knew he was caught, he chose to leave the stolen property behind. Specifically, Rockmore testified that the socks fell out of his clothing during the pursuit and that he threw the T-shirts down. There was no testimony that Rockmore tried to retrieve the stolen items once they were out of his possession. To the contrary, Rockmore specifically testified that he told the pursuing victim, “Look, give me a break, man. You got your S back.” There was no dispute that Rockmore made this statement well before the victim alleged that Rockmore threatened him with a gun.

Therefore, like the defendants in the abandonment cases the majority cites, Rockmore was entitled to defend against his robbery charge by arguing that his abandonment of the stolen property broke the nexus between the taking of the property and the use of force required by the robbery statute. See § 812.13(1), (3)(b), Fla. Stat. (2013) (defining robbery to require that the taking of property and the use of force constitute a continuous series of acts or events); see also Peterson v. State, 24 So.3d 686, 689-90 (Fla. 2d DCA 2009) (recognizing an abandonment of property defense to robbery); Garcia v. State, 614 So.2d 568, 569 (Fla. 2d DCA 1993) (reversing defendant’s robbery conviction where the defendant abandoned the stolen property prior to threatening a pursuing security guard with a gun); State v. Baker, 540 So.2d 847, 848 (Fla. 3d DCA 1989) (holding trial court properly dismissed a robbery charge where the undisputed facts established that “the defendant took the property without any use of force and abandoned the property before he used force to flee from the security guards”); Simmons v. State, 551 So.2d 607, 608 (Fla. 5th DCA 1989) (reversing defendant’s robbery conviction where the defendant’s struggle with store employees occurred after she “removed the [stolen] merchandise from her person and threw it to the floor”).

Since Rockmore presented evidence in support of his abandonment defense but takes issue with the trial court’s abandonment instruction, we must determine whether the instruction was correct. The trial court instructed the jury that it must find Rockmore not guilty of robbery with a firearm if it finds that he “took the merchandise without any use of force and had completely and voluntarily abandoned the property before he used any force.” However, over Rockmore’s objection, the trial court modified the proffered instruction to include the requirement that “the victim was aware of such abandonment.”

Our precedent is clear that “it is the duty of the [trial] court to define each and every element” of the crime and that this duty equally applies to “charging on the law relative to the defense.” Motley v. State, 155 Fla. 545, 20 So.2d 798, 800 (1945). Contrary to the Fifth District’s conclusion below, a party does not invite the trial court to breach this duty simply by proffering an instruction that the trial court modifies — over objection — to include an incorrect statement of law. See Rockmore v. State, 114 So.3d 958, 964 (Fla. 5th DCA 2012) (concluding Rockmore invited the trial court’s error).

In this case, there is no serious dispute that the trial court erred by modifying Rockmore’s proffered abandonment instruction to include a victim-awareness requirement. Though the majority’s selective view of the evidence precludes it from reaching this issue, as illustrated by the abandonment cases the majority cites, none of our district courts have conditioned the abandonment defense’s application on the victim’s awareness. See, e.g., Peterson, 24 So.3d at 688-89 (concluding abandonment defense applied where testimony conflicted as to whether defendant abandoned the stolen property prior to using force). Moreover, even the Fifth District recognized below that the trial court’s addition of a victim-awareness requirement was “erroneous.” Rockmore, 114 So.3d at 964.

Because Rockmore objected to the modification, the next question is whether the trial court’s error was harmless. As this Court has explained,

[t]he harmless error test ... places the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction. Application of the test requires an examination of the entire record by the appellate court including a close examination of the permissible evidence on which the jury could have legitimately relied[.]

State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (citations omitted).

In this case, the trial court’s error was not harmless beyond a reasonable doubt and certainly did not inure to Rockmore’s benefit as the majority holds. Though perhaps not probable, it is possible that a reasonable juror could have believed that Rockmore abandoned the stolen property before he threatened the victim, or at the very least had a reasonable doubt about it since the chase occurred at night and across several parking lots. That same juror could have also believed that the victim — who testified that he was certain Rockmore still had the stolen socks when he threatened him — was not aware that Rockmore had abandoned both the socks and the T-shirts. However, given the trial court’s erroneous instruction, there is a reasonable possibility that this juror — who would have otherwise voted to convict Rockmore of a lesser-included offense (such as aggravated assault with a firearm) — was compelled to convict Rockmore of robbery with a firearm. This reasonable possibility that the trial court’s error in instructing the jury contributed ' to Rockmore’s conviction is all that is required to establish the error was not harmless. Consequently, Rockmore is entitled to a new trial. See DiGuilio, 491 So.2d at 1135.

I respectfully concur in part and dissent in part.

PARIENTE, J., concurs.

PARIENTE, J.,

concurring in part and dissenting in part.

Dean Kenneth Rockmore is serving a sentence of life imprisonment after he was convicted of robbery with a firearm for stealing a package of T-shirts and a package of socks from Walmart, following a trial during which the jury received a legally inaccurate jury instruction on his defense of abandonment. I concur in Chief Justice Polston’s dissenting-in-part opinion that explains why Rockmore is entitled to a new trial based on the legally inaccurate special jury instruction given by the trial court in this case, but write separately to explain why I would go one step further and make clear that a legally accurate special instruction on abandonment is always necessary when the defendant presents evidence in support of this defense to robbery, as cogently articulated by the Second District Court of Appeal in Peterson v. State, 24 So.3d 686, 690 (Fla. 2d DCA 2009).

Specifically, Rockmore testified in defense at trial that while fleeing the store, he abandoned the stolen goods as he was chased across several parking lots by a Walmart loss prevention agent. Although the majority holds — by improperly relying on the State’s version of events to the exclusion of Rockmore’s — that Rockmore was not entitled to a special jury instruction on abandonment and that the trial court’s erroneous special instruction was therefore harmless, I conclude that Rock-more validly raised abandonment as a defense to the robbery charge in accordance with Florida law. Thus, Rockmore was entitled to the benefit of a legally accurate special jury instruction on his defense of abandonment so that the jury — rather than this Court — could consider whether the evidence supported this defense, and the legally inaccurate and misleading jury instruction given by the trial court regarding abandonment cannot be deemed harmless beyond a reasonable doubt.

The majority acknowledges that there was conflicting testimony for the jury to resolve as to whether Rockmore actually abandoned the stolen property. See majority op. at 980-81. The majority also recognizes that abandonment is a valid defense to the crime of robbery. See id. at 984-85. Because the jury was required to resolve the conflicting testimony on the valid defense of abandonment, Rockmore was entitled to a legally accurate special instruction on this defense, which would have correctly informed the jury of the elements necessary to find that Rockmore had successfully defended against the charge of robbery.

While the trial court did instruct the jury regarding the abandonment defense in this case, the instruction was legally inaccurate because it added a victim awareness requirement for abandonment that is not supported by Florida law. I therefore agree with Chief Justice Pol-ston’s dissenting-in-part opinion that the trial court’s error in modifying, over defense objection, the special jury instruction on abandonment was not harmless beyond a reasonable doubt. Further, although the majority avoids the issue, I would approve the Second District’s decision in the conflict case, Peterson, 24 So.3d 686, which explained that a special jury instruction on abandonment is warranted when the defendant presents evidence to support a theory of abandonment as a defense to robbery.

Although the majority specifically recognizes that the conflict issue in this case concerns the necessity of a special instruction where the defendant’s theory is that he or she abandoned the stolen property prior to threatening or using force, see majority op. at 980, the majority does not explicitly resolve this conflict in a manner that provides any clarity for future cases. Instead, the majority actually distinguishes the facts of the conflict case and then “leavefs] it for our trial courts to determine whether the specific facts of the robbery cases before them warrant a special instruction on this defense.” Id. at 985. The majority does this while ignoring that the trial court in this case in fact did conclude that a special instruction on abandonment was warranted based on the evidence.

I respectfully disagree with the majority’s decision to improperly resolve the conflicting testimony presented at trial on the issue of abandonment in concluding that the abandonment of property defense has “no application to Rockmore’s case.” Id. This conclusion is not supported by a review of the record. Indeed, even the majority itself acknowledges that “it was disputed as to whether Rockmore’s actions during the chase elevated the theft to a robbery.” Id. at 980. Specifically, as Chief Justice Polston’s dissentiUg-in-part opinion clearly explains, Rockmore presented evidence in support of his abandonment defense, testifying that he left the stolen property behind before the victim alleged that Rockmore threatened him with a gun. See dissenting-in-part op. at 985-86 (Pol-ston, C.J.). The majority’s conclusion that Rockmore was not entitled to a legally accurate jury instruction on abandonment because competent, substantial evidence supports the State’s version of events is troubling.

In my view, because Rockmore raised abandonment as a defense and there was conflicting evidence presented to the jury as to whether or not he actually abandoned the property, he was entitled to the benefit of a special jury instruction on abandonment of the kind the Second District approved in Peterson. In that case, the Second District cogently explained why a special instruction is necessary where the defendant asserts abandonment as a defense to robbery:

[T]he standard instruction did not adequately cover Peterson’s theory of defense. The standard instruction required the jury to find that force was used “in the course of the taking,” which was then defined as “prior to, contemporaneous with, or subsequent to” the taking and that the use of force and the taking of the property “constitute[d] a continuous series of acts or events.” Fla. Std. Jury Insto. (Crim.) 15.1. The standard instruction did not inform the jury that if the property was abandoned prior to the use of force, under the law the taking and the use of force were not a continuous series [of] acts or events. As such, the instruction did not cover Peterson’s theory of defense.

Peterson, 24 So.3d at 690 (emphasis added).

In order to be convicted of robbery, the defendant must commit a taking of money or other property of some value, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear. § 812.13(1), Fla. Stat. (2013). Under the robbery statute, which is mirrored in the standard jury instruction, an act is deemed “in the course of the taking” if it “occurs either prior to, contemporaneous with, or subsequent to the taking of the property and if it and the act of taking constitute a continuous series of acts or events.” § 812.13(3)(b), Fla. Stat. (2013); Fla. Std. Jury Instr. (Crim.) 15.1. There is thus no basis for a defendant to be convicted of robbery if he or she abandons the property prior to the use or threat of force.

However, as the Second District recognized in Peterson, the standard jury instruction on robbery does not adequately inform the jury that, if the defendant abandons the property prior to threatening or using force, the defendant has not committed a robbery because the taking and use of force were not “a continuous series of acts or events,” as required by the statute. § 812.13(3)(b), Fla. Stat. In other words, the standard jury instruction fails to make clear to the jury that, if it believes the defendant’s theory that he or she abandoned the stolen property, the State has not proven the crime of robbery.

There are three requirements a defendant must satisfy in order to be entitled to a special jury instruction: (1) the special instruction is supported by the evidence; (2) the standard instruction does not adequately cover the theory of defense; and (3) the special instruction is a correct statement of the law and not misleading or confusing. See Stephens v. State, 787 So.2d 747, 756 (Fla.2001). The majority does not dispute that Rockmore satisfied two of those requirements: (1) that the special instruction approved in Peterson is a correct statement of the law, and (2) that the standard robbery instruction does not adequately cover the abandonment theory of defense. Yet, the majority concludes— through what Chief Justice Polston correctly refers to as a “selective view of the evidence,” dissenting-in-part op. at 986 (Polston, C.J.) — that Rockmore cannot satisfy the third requirement because the evidence did not entitle him to a special instruction in this case. See majority op. at 984. This conclusion is accurate only if the State’s version of the facts is accepted as true and Rockmore’s is not — which is a question properly left for the jury to resolve upon being correctly instructed on the law.

Moreover, the majority’s decision fails to resolve the legal conflict that forms the basis for this Court to exercise jurisdiction. Even though the majority accepts jurisdiction in this case on the basis of conflict with Peterson, it then proceeds to distinguish the facts of Peterson as a way to avoid the issue of whether the trial court erred in modifying the special instruction on abandonment. The majority never squarely confronts the conflict with Peterson specifically identified by the Fifth District Court of Appeal in its decision below, where the district court acknowledged conflict “regarding the necessity and propriety of the special instruction regarding ‘abandonment.’ ” Rockmore v. State, 114 So.3d 958, 964 (Fla. 5th DCA 2012).

I would address this issue head on to provide clarity to this area of the law, and would approve the Second District’s decision in Peterson that a special jury instruction is warranted when the defendant puts forth evidence in support of abandonment as a defense to robbery. Here, Rock-more’s testimony specifically placed abandonment at issue, establishing a basis for the jury to conclude that he had abandoned the stolen property prior to the threat of force. Therefore, he was entitled to a special instruction on abandonment, and the trial court erred in modifying the special instruction in a manner that was misleading and inconsistent with the law, which does not condition the abandonment defense on the victim’s awareness.

Accordingly, I concur in Chief Justice Polston’s opinion that explains why Rock-more is entitled to a new trial based on the legally inaccurate special jury instruction given by the trial court. However, I would also go one step further and conclude that, when a defendant asserts abandonment as a defense to robbery and presents evidence in support of this defense, the defendant is entitled to a special jury instruction of the kind approved by the Second District in Peterson that “inform[s] the jury that if the property was abandoned prior to the use of force, under the law the taking and the use of force were not a continuous series [of] acts or events.” Peterson, 24 So.3d at 690. This procedure would thus appropriately leave it up to the jury to resolve the conflicting evidence after being correctly informed about the law. For all these reasons, I would reverse Rockmore’s life sentence for robbery and remand for a new trial where he would have the benefit of a legally accurate special jury instruction on his defense of abandonment.

      . Section 775.082(9)(a)l., Florida Statutes (2008), provides that a person who commits an enumerated offense, including robbery, within three years after being released from a state correctional facility or other designated correctional facility, may be sentenced as a prison releasee reoffender, which requires that for a felony punishable by life, a defendant is subject to a mandatory sentence of life imprisonment.

      . As a result of this conflicting testimony on the issue of abandonment, I concur in the majority’s holding that the trial court properly denied the defense’s motion for a judgment of acquittal.

      . Rockmore's life sentence was the result of his classification as a Prison Releasee Reof-fender (PRR) under section 775.082(9)(a)l., Florida Statutes (2009). This statute requires that for an enumerated felony such as robbery with a firearm that is punishable by life, the defendant must be sentenced to a term of imprisonment for life. § 775.082(9)(a)3., Fla. Stat. (2009).
      If Rockmore had been convicted of either of the two lesser-included offenses of petit theft or resisting a merchant, the PRR statute would not have applied. § 775.082(9)(a)l., Fla. Stat. (listing the enumerated offenses for which an offender may be sentenced as a PRR). If Rockmore had instead been charged with and convicted of aggravated assault with a deadly weapon, the PRR statute would have mandated a sentence of only five-years’ imprisonment. See § 775.082(9)(a)3., Fla. Stat. (explaining that a third-degree felony is punishable by a term of imprisonment of five years); § 784.021(2), Fla. Stat. (2009) (defining aggravated assault with a deadly weapon as a third-degree felony).
      In other words, the difference under the PRR statute between a conviction for robbery with a firearm and a conviction for aggravated assault with a deadly weapon — arguably the most serious alternative offense for which Rockmore could have been charged based on the facts of this case — is the difference between spending five years or the rest of his life in prison.


author: QUINCE, J.

text:
    Demetrice Armicle McNEAL, Petitioner, v. STATE of Florida, Respondent.
    No. SC13-650.
    Supreme Court of Florida.
    June 5, 2014.
    Diana L. Johnson of Johnson and Lufra-no, P.A., Jacksonville, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Trisha Meggs Pate, Bureau Chief, Criminal Appeals, and Donna Antoinette Gerace, Assistant Attorney General, Tallahassee, FL, for Respondent.
   QUINCE, J.

We have for review McNeal v. State, 109 So.3d 268, 271 (Fla. 1st DCA 2013), in which the First District Court of Appeal found that satisfying the foundational requirements under the past recollection recorded exception to hearsay need not come from the declarant’s testimony. At the time that the First District issued its decision below, Polite v. State, 41 So.3d 935 (Fla. 5th DCA 2010), quashed, 116 So.3d 270 (Fla.2013), was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

We stayed proceedings in this case pending disposition of Polite, in which we held that the past recollection recorded exception requires the witness to indicate that the events were fresh in his or her mind when the statement was made, as well as attest to the accuracy of the memorandum or record. Polite v. State, 116 So.3d 270, 278 (Fla.2013). We then issued an order in the instant case directing Respondent to show cause why this Court should not accept jurisdiction, summarily quash the First District’s decision in McNeal, and remand for reconsideration in light of our decision in Polite. Respondent filed a response acknowledging that the victims in both the instant case and in Polite did not vouch at trial for the accuracy or correctness of their written statements. Respondent contends, however, that this Court should decline to accept jurisdiction because the district court below found that even if the publishing of the statement was error, it was harmless. Petitioner filed a reply, asserting that the decision below should be quashed and that we should remand because the district court applied an incorrect standard in finding that the error was harmless.

Upon consideration of the Respondent’s response, and Petitioner’s reply thereto, we grant the petition for review, , quash the district court’s decision in McNeal, and remand this case to the First District for reconsideration in light of this Court’s decision in Polite, and a proper harmless error analysis under State v. DiGuilio, 491 So.2d 1129 (Fla.1986), if applicable.

It is so ordered.

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

CANADY, J., concurs in result.

      . The past recollection recorded exception provides as follows:
      A memorandum or record concerning a matter about which a witness once had knowledge, but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. A party may read into evidence a memorandum or record when it is admitted, but no such memorandum or record is admissible as an exhibit unless offered by an adverse party.
      § 90.803(5), Fla. Stat. (2013).


author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES—INSTRUCTION 14.2.
    No. SC12-1940.
    Supreme Court of Florida.
    June 5, 2014.
    Honorable Joseph A. Bulone, Chair, Clearwater, FL, and Honorable Jacqueline Hogan Scola, Past Chair, Standard Jury Instructions in Criminal Cases Committee, Miami, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.
   PER CURIAM.

Previously in this case, the Court authorized on an interim basis, on its own motion, amended instruction 14.2 (Dealing in Stolen Property (Fencing)) of the Standard Jury Instructions in Criminal Cases. See In re Standard Jury Instructions in Criminal Cases — Instruction 14-2, 121 So.3d 520 (Fla.2013). The amendments to this instruction were in response to this Court’s decision in Williams v. State, 121 So.3d 524 (Fla.2013), holding that when the offenses of both theft and dealing in stolen property are submitted to the jury, the jury must be instructed in accordance with section 812.025, Florida Statutes (2008). Id. at 530-31. Because the Court amended the instruction on its own motion, the Court allowed sixty days in which the Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) and other interested persons could file comments. In re Standard Jury Instructions in Criminal Cases — Instruction 14-2, 121 So.3d at 521.

The Court received one comment and a response from the Committee. Having considered the comment and the Committee’s response, we further amend instruction 14.2 as proposed by the Committee but with one modification. We decline to include the Committee’s proposed language pertaining to when a person engages in more than one scheme or course of conduct, because the Court does not decide substantive issues in jury instruction cases, but rather allows the law to develop in actual cases and controversies.

Amended instruction 14.2, as set forth in the appendix to this opinion, is hereby authorized for publication and use. New language is indicated by underlining, and deleted language is indicated by struck-through type. In authorizing the publication and use of this instruction, we express no opinion on its correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instruction. We further caution all interested parties that any comments associated with the instruction reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instruction as set forth in the appendix shall become effective immediately upon release of this opinion.

It is so ordered.

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

APPENDIX

14.2 DEALING IN STOLEN PROPERTY (FENCING)

§ 812.019(1), Fla. Stat.

To prove the crime of Dealing in Stolen Property (Fencing), the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) [trafficked in] [endeavored to traffic in] (property alleged).

2. (Defendant) knew or should have known that (property alleged) was stolen.

Inferences. Give if applicable. § 812.022(2), Fla. Stat.

Proof of possession of recently stolen property, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(3), Fla. Stat.

Proof of the purchase or sale of stolen property at a price substantially below the fair market value, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that the property had been stolen.

Inferences. Give if applicable. § 812.022(h), Fla. Stat.

Proof of the purchase or sale of stolen property by a dealer in property, out of the regular course of business or without the usual indicia of ownership other than mere possession, unless satisfactorily explained, gives rise to an inference that the person buying or selling the property knew or should have known that it had been stolen.

Inferences. Give if applicable. § 812.022(5), Fla. Stat.

Proof that a dealer who regularly deals in used property possesses stolen property, upon which a name and phone number of a person other than the offer- or of the property are conspicuously displayed, gives rise to an inference that the dealer possessing the property knew or should have known that the property was stolen.

Inferences. Give if applicable. § 812.022(6), Fla. Stat.

Proof that a person was in possession of a stolen motor vehicle and that the ignition mechanism of the motor vehicle had been bypassed or the steering wheel locking mechanism had been broken or bypassed, unless satisfactorily explained, gives rise to an inference that the person in possession of the stolen motor vehicle knew or should have known that the motor vehicle had been stolen.

Definitions.

§ 812.012(3), Fla. Stat.

“Property” means anything of value, and includes:

real property, including things growing on, affixed to and found in land; tangible or intangible personal property, including rights, privileges, interests, and claims; and services.

§§ 812.012(6), 812.028(3), Fla. Stat.

“Stolen property” means property that has been the subject of any criminally wrongful taking or if the property has not been stolen, that it was offered for sale to (defendant) as stolen property.

§ 812.012(7), Fla. Stat.

“Traffic” means:

to sell, transfer, distribute, dispense or otherwise dispose of property; and to buy, receive, possess, obtain control of or use property with the intent to sell, transfer, distribute, dispense or otherwise dispose of that property.

Give if both theft and dealing in stolen property are submitted to the jury:

You will receive separate verdict forms for theft and dealing in stolen property as the defendant was charged with both crimes.

If you find that the State has not proven theft and dealing in stolen property, then you are to find the defendant not guilty of both offenses.

If you find that the State has proven theft, but not dealing in stolen property, then you are to find the defendant guilty of theft and not guilty of dealing in stolen property.

If you find that the State has proven dealing in stolen property, but not theft, then you are to find the defendant guilty of dealing in stolen property and not guilty of theft.

If you find that the State has proven both theft and dealing in stolen property, you must then decide whether both offenses were in connection with one scheme or course of conduct. “One scheme or course of conduct” means that there was no clearty disjunctive interval of time or set of circumstances which meaningfully disrupted the flow of the defendant’s conductmeaningful disruption of the defendant’s conduct by

either an interval of time or a set of circumstances.

If you find that both theft and dealing in stolen property were proven by the State, and the offenses were not in connection with one scheme or course of conduct, then you are to find the defendant guilty of both theft and dealing in stolen property.

If you find that both theft and dealing in stolen property were proven by the State, and the offenses were in connection with one scheme or course of conduct, then the defendant must be convicted of either theft or dealing in stolen property. In making your decision, you must determine whether the defendant is more of a common thief or more of a trafficker. This determination rests on the defendant’s intended use of the stolen property. The defendant is a “common thief’ if [he][she] had the intent to appropriate the property to [his][her] own use or to the use of any person not entitled to the use of the property. The defendant is a “trafficker” if [he][she] had the intent to traffic in the stolen property. If you find the defendant more of a “common thief,” then you are to find the defendant guilty of theft only. If you find the defendant more of a “trafficker,” then you are to find the defendant guilty of dealing in stolen property only.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and amended in 1989 [543 So.2d 1205], 2007, by adding the inferences in § 812.022(2)-(6), Fla. Stat., and 2013 [121 So.3d 520], and 2014.

      . We have jurisdiction. See art. V, § 2(a), Fla. Const.

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


author: PERRY, J.

text:
    STATE of Florida, Petitioner, v. Calvin Lewis OVERHOLT, Jr., Respondent. State of Florida, Petitioner, v. Robert F. Oliver, Respondent.
    Nos. SC13-962, SC13-1143.
    Supreme Court of Florida.
    June 5, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Celia Terenzio and Melanie Dale Surber, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, West Palm Beach, FL; Tatjana Ostapoff and Anthony Calvello, Assistant Public Defenders, West Palm Beach, FL, for Respondents.
   PERRY, J.

We initially accepted review of the decisions in Overholt v. State, 110 So.3d 530 (Fla. 4th DCA 2013), and Oliver v. State, 125 So.3d 244 (Fla. 4th DCA 2013), based on direct and express conflict. See art. V, § 3(b)(3), Fla. Const. In light of the State’s suggestion of mootness, we dismiss review of the decision in Overholt as moot. Additionally, upon further consideration, we conclude that jurisdiction was improvidently granted in Oliver. Accordingly, we discharge jurisdiction and dismiss this review proceeding.

It is so ordered.

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

LEWIS and QUINCE, JJ., dissent.


text:
    FLORIDA INSURANCE GUARANTY ASS’N, INC., Petitioner, v. WHISTLER’S PARK, INC., Respondent.
    No. SC12-1661.
    Supreme Court of Florida.
    June 5, 2014.
    Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow, & Sehe-fer, P.A., Hollywood, FL, for Petitioner.
    Scott J. Dornstein and Keith J. Lambdin of Katzman Farfinkel & Berger, Maitland, FL, for Respondent.
   PER CURIAM.

We initially accepted jurisdiction of the Fifth District Court of Appeal’s decision in Whistler’s Park, Inc. v. Florida Insurance Guaranty Ass’n, 90 So.3d 841 (Fla. 5th DCA 2012), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal and of this Court: Southern Home Insurance Co. v. Putnal, 57 Fla. 199, 49 So. 922, (1909); Gonzalez v. State Farm Florida Insurance Co., 65 So.3d 608 (Fla. 3d DCA 2011); Edwards v. State Farm Florida Insurance Co., 64 So.3d 730 (Fla. 3d DCA 2011); Arnica Mutual Insurance Co. v. Drummond, 970 So.2d 456 (Fla. 2nd DCA 2007); Goldman v. State Farm Fire General Insurance Co., 660 So.2d 300 (Fla. 4th DCA 1995); and Stringer v. Fireman’s Fund Insurance Co., 622 So.2d 145 (Fla. 3d DCA 1993). See art. V, § 3(b)(3), Fla. Const.

Upon further consideration, we have determined that we should exercise our discretion and discharge jurisdiction. Accordingly, we hereby discharge jurisdiction and dismiss review.

It is so ordered.

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

CANADY, J., dissents.


text:
    In re AMENDMENTS TO FLORIDA RULE OF CIVIL PROCEDURE FOR INVOLUNTARY COMMITMENT OF SEXUALLY VIOLENT PREDATORS 4.470.
    No. SC14-914.
    Supreme Court of Florida.
    June 5, 2014.

      Judge Kevin Emas, Chair, Criminal Court Steering Committee, Miami, FL, and Bart Schneider, Office of State Court Administrator Staff, Criminal Court Steering Committee, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Supreme Court’s Criminal Court Steering Committee (Committee) has filed a petition to amend Florida Rule of Civil Procedure for Involuntary Commitment of Sexually Violent Predators 4.470 (Post Commitment Proceedings). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee unanimously proposes amendments to rule 4.470 in response to recent amendments to section 394.918, Florida Statutes (2013), made by Chapter 2014-2, § 6, Laws of Florida, and which become effective July 1, 2014. See ch.2014-2, § 11, Laws of Fla.

Upon consideration, we amend rule 4.470 as proposed by the Committee. Subdivision (d) of the rule is amended in three respects. First, the amendment reflects that respondents have the right to be present at a post-commitment probable cause hearing. Second, both the State and the respondent may present evidence at the hearing. And third, the word “retained” is removed from the rule because section 394.918(3) provides that the respondent has the right to be represented by counsel, which is retained or appointed. Subdivision (f) is amended to reflect that the State has the right to have the respondent examined by “professionals,” and not by “a professional.”

Accordingly, Florida Rule of Civil Procedure for Involuntary Commitment of Sexually Violent Predators 4.470 is hereby amended as set forth in the appendix to this opinion. New language is underscored; deleted language is struck through. The amendments to this rule shall become effective July 1, 2014, at 12:01 a.m. Because the amendments were not published for comment prior to their adoption, interested persons shall have sixty days from the date of this opinion in which to file comments with the Court.

It is so ordered.

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

APPENDIX

RULE 4.470. POST COMMITMENT PROCEEDINGS

(a)-(c) [No change]

(d)A respondent who receives written notice of the examination, and waives his or her rights to confidentiality of the result, and who petitions the court over the objection of the director of the facility where the respondent is housed, has the right to a hearing limited to determining whether probable cause exists to believe the respondent’s condition has so changed, that it is safe for the respondent to be at large, and that the respondent will not engage in acts of sexual violence if discharged. Both the state attorney and the respondent may present evidence. The respondent has the right to be represented by retained counsel but does not have and the right to be present at the hearing.

(e) [No change]

(f) The state attorney shall have the right to have the person examined by a professionals chosen by the state prior to the trial.

(g) [No change]

(h) [No change]

      . All comments must be filed with the Court on or before August 4, 2014, with a certificate of service verifying that a copy has been served on the Chair of the Supreme Court's Criminal Court Steering Committee, the Honorable Kevin M. Emas, Third District Court of Appeal, 2001 S.W. 117th Avenue, Miami, Florida 33175, emask@flcourts.org, and on the Office of the State Courts Administrator, Staff to the Committee, Bart Schneider, Office of the General Counsel, 500 S. Duval Street, Tallahassee, Florida 32399-1925, schneiderb@flcourts.org, as well as a separate request for oral argument if the person filing the comment wishes to participate in oral argument, which may be scheduled in this case. The Committee Chair has until August 25, 2014, to file a response to any comments filed with the Court. If filed by an attorney in good standing with The Florida Bar, the comment must be electronically filed via the Portal in accordance with In re: Electronic Filing in the Supreme Court of Florida via the Florida Courts E-Filing Portal, Fla. Admin. Order No. AOSC13-7 (Feb. 18, 2013). If filed by a nonlawyer or a lawyer not licensed to practice in Florida, the comment must be electronically filed via e-mail in accordance with In re Mandatory Submission of Electronic Copies of Documents, Fla. Admin. Order No. AOSC04-84 (Sept. 13, 2004). Electronically filed documents must be submitted in Microsoft Word 97 or higher. Any person unable to submit a comment electronically must mail or hand-deliver the originally signed comment to the Florida Supreme Court, Office of the Clerk, 500 S. Duval Street, Tallahassee, Florida 32399-1927; no additional copies are required or will be accepted.


text:
    Kaheu LUCES, Appellant, v. RED VENTURES and The Hartford, Appellees.
    No. 1D13-1001.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2014.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    No appearance for Appellees.
   PER CURIAM.

Claimant makes two arguments in this workers’ compensation appeal, one of which calls for reversing the order in part. We affirm the order of the judge of compensation claims (JCC) insofar as it disapproved the parties’ settlement stipulation regarding $1,500 in attorney’s fees payable by the Employer/Carrier, purportedly authorized by section 440.34(3)(a), Florida Statutes (2009). Section 440.34(3)(a) provides for the award of an attorney’s fee from an employer “[ajgainst whom [a claimant] successfully asserts a petition for medical benefits only, if the claimant has not filed or is not entitled to file at such time a claim for disability, permanent impairment, wage-loss, or death benefits, arising out of the same accident.” (Emphasis added). The JCC ruled that counsel did not secure only (or perhaps any) medical benefits for Claimant, so that, inter alia, the caps in section 440.34(1) apply, not the “alternative attorney’s fee” (of up to $1,500) applicable where an attorney’s fee is owed on a medical benefits-only theory per paragraph (3)(a). § 440.34(7), Fla. Stat. (2009). The JCC invited counsel for the parties to seek a telephonic hearing and provide additional evidence supporting the alleged medical benefit only claim. But Claimant’s counsel filed only a motion for rehearing that again lacked a meaningful legal or factual basis for approving a medical benefits only attorney’s fee under section 440.34(3)(a).

The JCC’s order did err, however, by reforming the parties’ settlement stipulation and remitting the $1,500 fee to the employee contrary to any apparent intention or agreement of the parties. As Claimant argues, chapter 440 limits the authority of JCCs and does not authorize them to reform the agreements of parties on their own motion. See Bend v. Shamrock Servs., 59 So.3d 153, 156 (Fla. 1st DCA 2011) (“A JCC is not a court of general jurisdiction, and cannot reform contracts or effect a remedy not provided under the Workers’ Compensation Law.”). The JCC was without authority to redirect the attorney’s fee from counsel to claimant as an exercise of plenary equitable jurisdiction. On remand, the parties may petition for the approval of attorney’s fees payable to Claimant’s counsel under section 440.34(3)(b) — not paragraph (3)(a), for the reasons described above — -in discharge of any obligation that the Employer/Carrier may have to Claimant’s counsel for attorney’s fees.

Finally, the $500 amount in the parties’ agreement designated as “out of pocket costs” payable by the Employer/Carrier to Claimant (not her attorney) was not subject to the JCC’s approval at all. This amount was, by all appearances, a negotiated payment to be made to Claimant herself, not an attorney’s fee subject to the JCC’s approval under chapter 440.

Accordingly, we REVERSE IN PART the order on appeal insofar as it reforms the stipulation with respect to the $1500 attorney’s fee, and REMAND for further proceedings consistent with this opinion.

BENTON, SWANSON, and OSTERHAUS, JJ. concur.