author: PER CURIAM.

text:
    In re STANDARD JURY INSTRUCTIONS IN CRIMINAL CASES— REPORT NO. 2013-07.
    No. SC13-2383.
    Supreme Court of Florida.
    July 10, 2014.
    Honorable Joseph Anthony Bulone, Chair, Supreme Court Committee on Standard Jury Instructions in Criminal Cases, Clearwater, FL, and Bart Schneider, Senior Attorney, Office of State Court Administrator, Tallahassee, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Standard Jury Instructions in Criminal Cases (Committee) has submitted proposed changes to the standard criminal jury instructions and asks that the Court authorize the amended standard instructions for publication and use. We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Committee’s proposed changes affect the following existing standard jury instructions: 2.7, Closing Argument; 3.6(k), Duress or Necessity; 21.1, Resisting Officer with Violence; 21.2, Resisting Officer Without Violence; 21.4, False Report of Commission of a Crime; 21.5, Giving False Information Concerning Commission of a Crime; 21.6, Giving False Information Concerning Commission of a Capital Felony; 22.5, Setting Up, Conducting, or Promoting a Lottery; 29.13, Aggravated Animal Cruelty; and 29.13(a), Animal Cruelty. The Committee also proposes two new instructions: 8.23, Extortion, and 25.15(a), Retail Sale of Drug Paraphernalia. Prior to filing its report with the Court, the Committee published its proposals in the November 1, 2013, edition of The Florida Bar News and received comments. After considering the comments it received, the Committee made some changes to its proposals before filing its report with the Court. Having considered the Committee’s report, we authorize the amended instructions for publication and use with certain changes or exceptions as indicated below.

The Committee proposes an amendment to the “Note to Judge” within Instruction 21.1, Resisting Officer with Violence, which currently provides: “A special instruction incorporating § 776.051(1), Fla. Stat. should be given when the defense claims the officer was acting unlawfully.” The Committee proposes that the Note to Judge be amended to restrict the note’s application to cases of resisting arrest. The Committee’s proposal would amend the note to read: “A special instruction incorporating § 776.051(1), Fla. Stat., should be given when the defendant was resisting an amst by a law enforcement officer and the defense claims the officer was acting unlawfully.” (The underlining indicates the proposed new language.) The Committee’s rationale is that “there are circumstances other than an arrest (such as resisting during a detention) where Instruction 21.1 applies, but Florida Statute 776.051(1) does not.” However, section 776.051(1) applies to resisting an officer as well as to resisting arrest. Therefore, we revise the Committee’s proposed amendment and amend the Note to Judge to read as follows: “A special instruction incorporating § 776.051(1), Fla. Stat., should be given when the defendant is charged with resisting an arrest by a law enforcement officer or with resisting a law enforcement officer and the defense claims the officer was acting unlawfully.”

In Instruction 22.5, Setting Up, Promoting, or Conducting a Lottery, the Committee proposes that the definition of “lottery” be amended. The proposal would delete the phrase that follows the words “a lottery is” and define the term by reference to the three elements as follows: “A ‘lottery’ has three elements: (1) consideration — that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.” In the proposal, this amended definition is followed by new definitions of the terms “bet,” “thing ventured,” and “prize by lot or chance.” We note that there are six other standard instructions for other lottery-related offenses proscribed by section 849.09, Florida Statutes (2013). See Fla. Std. Jury Instr. (Crim.) 22.6-22.il. We are concerned that if we authorize for publication and use the Committee’s proposed revision of Instruction 22.5, the definition of “lottery” in Instruction 22.5 will be different from the definition of “lottery” that appears in the other six instructions. We therefore decline to authorize the proposed revision at this time and ask the Committee to study the matter further in connection with possible amendments to Instructions 22.6-22.11.

As stated above, we have revised the Committee’s proposal with respect to the “Note to Judge” section of Instruction 21.1, Resisting Officer with Violence. And we defer consideration of the Committee’s proposed amendment of the definition of “lottery” in Instruction 22.5, Setting Up, Promoting or Conducting a Lottery, pending the Committee’s reconsideration, which we hereby request, of its proposal in connection with the standard instructions on other lottery-related offenses. With these exceptions, we authorize the proposed instructions for publication and use.

We authorize the amended instructions, as set forth in the appendix to this opinion, 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 these instructions, we express no opinion on their correctness and remind all interested parties that this authorization forecloses neither requesting additional or alternative instructions nor contesting the legal correctness of the instructions. We further caution all interested parties that any comments associated with the instructions reflect only the opinion of the Committee and are not necessarily indicative of the views of this Court as to their correctness or applicability. The instructions as set forth in the appendix shall be effective when this opinion becomes final.

It is so ordered.

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

APPENDIX

2.7 CLOSING ARGUMENT

§ 918.19, Fla. Stat.

Both the State and the defendant have now rested their case.

The attorneys now will present their final arguments. Please remember that what the attorneys say is not evidence or your instruction on the law. However, do listen closely to their arguments. They are intended to aid you in understanding the case. Each side will have equal time, but the State is entitled to divide this time between an opening argument and a rebuttal argument after the defendant defense has spokengiven its closing argument.

Comment

This instruction was approved in 1981 and amended in 2007 [SC07-325¡-Correct-ed-Opinion, August 30, 2007] [965 So.2d 811] and 2014.

3.6(k) DURESS OR NECESSITY

An issue in this case is whether (defendant) acted out of [duress] [necessity] in committing the crime of (crime charged) (lesser included offenses).

It is a defense to the (crime charged) (lesser included offenses) if the defendant acted out of [duress] [necessity]. In order to find the defendant committed the (crime charged) (lesser included offense) out of [duress] [necessity], you must find the following six elements:

1. The defendant reasonably believed [a danger] [an emergency] existed which was not intentionally caused by [himself] [herself].
2. a. The [danger] [emergency] threatened significant harm to [himself] [herself] [a third person].

Give 2b if escape charged.

b. The [danger] [emergency] threatened death or serious bodily injury.
3. The threatened harm must have been real, imminent, and impending.

Give ha if escape is not charged.

4. a. The defendant had no reasonable means to avoid the [danger] [emergency] except by committing the (crime charged) (lesser included offenses).

If escape is charged, the court must first determine whether the defendant has satisfied the conditions precedent enumerated in Muro v. State, 445 So.2d 374 (Fla. 3d DCA 1984), and Alcantaro v. State, 407 So.2d 922 (Fla. 1st DCA 1981), and if so, give hb.

b. The defendant left [the place of [his][her] confinement] [the vehicle in which [he][she] was being transported] [to] [from] [his][her] work on a public road] because [he][she] reasonably believed that escape was necessary to avoid the danger of death or serious injury, rather than with the intent to elude lawful authority.
5. The (crime charged) (lesser included offenses) must have been committed out of [duress] [necessity] to avoid the [danger] [emergency].
6. The harm that the defendant avoided must outweigh the harm caused by committing the (crime charged) (lesser included offenses).

Definitions.

“Imminent and impending” means the [danger] [emergency] is about to take place and cannot be avoided by using other means. A threat of future harm is not sufficient to prove this defense. Nor can the defendant use the defense of [duress] [necessity] if [he] [she] committed the crime after the danger from the threatened harm had passed.

The reasonableness of the defendant’s belief that [a danger] [an emergency] existed should be examined in the light of all the evidence.

In deciding whether it was necessary for the defendant to commit the (crime charged) (lesser included offenses), you must judge the defendant by the circumstances by which [he][she] was surrounded at the time the crime was committed.

The [danger] [emergency] facing the defendant need not have been actual; however, to justify the commission of the (crime charged) (lesser included offenses), the appearance of the [danger] [emergency] must have been so real that a reasonably cautious and prudent person under the same circumstances would have believed that the [danger] [emergency] could be avoided only by committing the (crime charged) (lesser included offenses). Based upon appearances, the defendant must have actually believed that the [danger] [emergency] was real.

If you have a reasonable doubt as to whether the defendant committed the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant not guilty.

However, if you are convinced beyond a reasonable doubt that the defendant did not commit the (crime charged) (lesser included offenses) out of [duress] [necessity], you should find the defendant guilty if all the elements of the charge have been proved.

Comment

Duress is not a defense to premeditated murder or attempted premeditated murder. See Wright v. State, 402 So.2d 493 (Fla. 3d DCA 1981) and Cawthon v. State, 382 So.2d 796 (Fla. 1st DCA 1980). It is unclear whether duress is a defense to other forms of homicide. Review Judge Ervin’s opinion in Chestnut v. State, 505 So.2d 1352 (Fla. 1st DCA 1987), and the language in Gahley v. State, 567 So.2d 456 (Fla. 1st DCA 1990), Corujo v. State, 424 So.2d 43 (Fla. 2d DCA 1982), and Hunt v. State, 753 So.2d 609 (Fla. 5th DCA 2000).

For the defense of necessity for the charge of Felon in Possession of a Firearm, see State v. Chambers, 890 So.2d 456 (Fla. 2d DCA 2004) and Marrero v. State, 516 So.2d 1052 (Fla. 3d DCA 1987).

This instruction was adopted in July 1998 and amended in 2012 [95 So.3d 868] and 2014.

8.23 EXTORTION § 836.05, Fla. Stat.

To prove the crime of Extortion, the State must prove the following [four][five] elements beyond a reasonable doubt:

1. (Defendant) made a [written] [printed] [verbal] communication to (name of person).
2. In that communication, (defendant) threatened to

Give as applicable.

a. accuse another person of any [crime] [offense].
b. injure another person.
c. injure the [property] [reputation] of another person.
d. expose another person to disgrace.
e. expose any secret affecting another person.
f. impute any deformity or lack of chastity to another person.
3. (Defendant’s) threat was made maliciously.
4. (Defendant’s) threat was made with the intent to

Give as applicable.

a. extort money [or any pecuniary advantage whatsoever] from [ (name of person) ] [any person],
b. compel [ (name of person) ] [any person] to do any act or refrain from doing any act against [his][or][her] will.

If the person in element # 1 is not the same person in element # 4, then the defendant’s threat was indirect. In those cases, the trial judge must also instruct on element #5. See Calamia v. State, 125 So.3d 1007 (Fla. 5th DCA 2013).

5. At the time (defendant) made the threat, [he][she] intended that the threat be communicated to (insert name of person in element # 4 who was extorted or compelled).

Definition of “maliciously. The appellate courts are in conflict as to whether the extortion statute requires actual malice or legal malice. In the absence of clarification from the legislature or the Florida Supreme Court, trial judges must choose one of the following:

Dudley v. State, 634 So.2d 1093 (Fla. 2d DCA 1994); Alonso v. State, 447 So.2d 1029 (Fla. 4th DCA 1984).

“Maliciously” means intentionally and without any lawful justification.

Calamia v. State, 125 So.3d 1007 (Fla. 5th DCA 2013).

“Maliciously” means with ill will, hatred, spite, or an evil intent.

Lesser Included Offenses

No lesser-included offenses have been identified for this crime. Attempted extortion is not a crime. Achin v. State, 436 So.2d 30 (Fla.1982).

Comment

It is not necessary for the State to prove the actual intent to do harm nor the ability to carry out the threat. Threats to cause mental or psychological damage are prohibited under this statute. Duan v. State, 970 So.2d 903 (Fla. 1st DCA 2007).

This instruction was adopted in 2014,

21.1 RESISTING OFFICER WITH VIOLENCE

§ 848.01, Fla. Stat.

To prove the crime of Resisting Officer with Violence, the State must prove the following four elements beyond a reasonable doubt:

Note to Judge: An issue arises when the State charges that the defendant resisted more than one officer in one count. Under the current law, a defendant can commit only one count of Resisting With Violence even if several officers are involved in the same event. See Wallace v. State, 724 So.2d 1176 (Fla.1998). One possible remedy for this problem would be to instruct:

To prove the crime of Resisting Officer with Violence, the State must prove all of the following four elements beyond a reasonable doubt as to at least one of the alleged victims named below:

1.(Defendant) knowingly and willfully [resisted] [obstructed] [opposed] (victim) by [offering to do [him] [her] violence] [doing violence to [him][her]].
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer] [a person legally authorized to execute process].
4. At the time, (Defendant) knew (victim) was [an officer] [a person legally authorized to execute process].

In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991). See § 813.01 Fla. Stat. for the type of officer covered by this statute.

The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.

Note to Judge:

A special instruction incorporating § 776.051(1) Fla. Stat. should be given when the defendant is charged with resisting an arrest by a law enforcement officer or with resisting a law enforcement officer and the defense claims the officer was acting unlawfully.

A special instruction incorporating instructions 3.6(f); 3.6(g); and/or 3.6(h) should be given when the defense claims the police used excessive force.

Definition. Give if applicable.

“Offering” to do violence means threatening to do violence.

Walker v. State, 965 So.2d 1281 (Fla. 2nd DCA 2007).

Lesser Included Offenses

Comment

This instruction was adopted in 1981 and amended in 1995 [657 So.2d 1152], and 2008 [996 So.2d 851], and 2014.

21.2 RESISTING OFFICER WITHOUT VIOLENCE

§ 843.02, Fla. Stat.

To prove the crime of Resisting Officer without Violence, the State must prove the following four elements beyond a reasonable doubt:

Note to Judge: An issue arises when the State charges that the defendant resisted Officer X or Officer Y. Under the current law, a defendant can commit only one count of Resisting Without Violence even if several officers are involved in the same event. See Wallace v. State, 724 So.2d 1176 (Fla.1998). One possible remedy for this problem would be to instruct:

To prove the crime of Resisting Officer without Violence, the State must prove all of the following four elements beyond a reasonable doubt as to at least one of the alleged victims named below:

1. (Defendant) [resisted] [obstructed] [opposed] (victim).
2. At the time, (victim) was engaged in the [execution of legal process] [lawful execution of a legal duty].
3. At the time, (victim) was [an officer] [a person legally authorized to execute process].
4. At the time, (defendant) knew (victim) was [an officer][a person legally authorized to execute process].

In giving the instruction below, insert the class of officer to which the victim belongs, e.g., law enforcement officer, correctional officer. See Wright v. State, 586 So.2d 1024 (Fla.1991). See § 813.02 Fla. Stat. for the type of officer covered by this statute.

The court now instructs you that every (name of official position of victim designated in charge) is an officer within the meaning of this law.

Lesser Included Offenses

Comment

This instruction was adopted in 1981 [431 So.2d 594] and amended in 1989 [543 So.2d 1205], 1995 [657 So.2d 1152], and 2008 [996 So.2d 851], and 2014.

21.4 FALSE REPORTS OF COMMISSIONS OF A CRIME

§ 817.49, Fla. Stat.

To prove the crime of False Reports of Commission of a Crime, the State must prove the following four elements beyond a reasonable doubt:

1. (Defendant) willfully [gave or said-provided-]-[caused to be -given- or-saidprovided] false information or a report about the alleged commission of a crime under Florida law to (name of law enforcement officer).
2. [He] [She] (Defendant) knew the information or report was false because [he] [she] knew that no such crime had actually been committed.
3. (The — information or report - was [given-or-said]-[caused to be given or-said-]-to-a law enforcement officer* (Name of law enforcement officer) was a law enforcement officer.
4. [He][She] (Defendant) knew or should — have—known ( ) (name of law enforcement officer) was a law enforcement officer.

The Court now instructs you that (insert name of crime) is a crime.

Definitions?

Patterson v. State, 512 So.2d 1109 (Fla. 1st DCA1987).

“Willfully” means intentionally, knowingly, and purposely.

-§-7-7-5M-F4a7=§tatt

“Crime” means — a—felony—or—misdemeanor.

Optional-Definitions-.-§-7-7St08{í)t Fla.J5tat.

“Felony” means any-criminal offense punishable by death or imprisonment in a state penitentiary*

■ §-7-7-5-08(-2)--Fleí7§-teár

“Misdemeanor” means - any-criminal offense-punishable by imprisonment-in-a county — correctional facility not in excess of- one-year.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

(The-definition-of law enforcement officer is -contained ■in-§§~843,Ql, 843.02, Fla. Stat* “Law enforcement officer” is not defined in chapter 817, Florida Statutes, or in case law interpreting and applying section 817.49. Trial judges may consult sections 790.001, 934.02, and 943.10 in deciding whether and how to define “law enforcement officer” for the jury.

This instruction was adopted in 1981 and amended in 2014.

21.5 GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CRIME

§ 837.05(1), Fla. Stat.

To prove the crime of Giving False Information Concerning the Commission of a Crime, the State must prove the following five elements beyond a reasonable doubt:

1. (Defendant) knowingly gave information about the alleged commission of a crime.
2. (Defendant) knew the information was false.
3. (Defendant) gave the false information to (name of law enforcement officer).
4. (Name of law enforcement officer) was a law enforcement officer.
5. (Defendant) knew that (name of law enforcement officer) was a law enforcement officer.

The court now instructs you that (crime alleged) is a crime, and that a (do not name the officer, instead insert his or her official position of law enforcement officer-,- such as deputy sheriff or police officer) is a law enforcement officer.

Unless the false information concerns a capital offense (see Instruction 21.6), this crime is a misdemeanor of the first degree. However, if the defendant was previously convicted of this crime and if certain conditions were met, the crime becomes a third degree felony. See § 8S7.05(l)(b), Fla. Stat.

If the State has alleged the third degree felony, do not read the allegation of a prior conviction and do not send the charging document into the jury room. If the defendant is found guilty of Giving False Information Concerning the Commission of a Crime, the historical fact of a prior conviction shall be determined in a bifurcated proceeding. State v. Harbaugh, 754 So.2d 691 (Fla.2000).

Give if applicable.

You have found (defendant) guilty of Giving False Information Concerning the Commission of a Crime. You must now determine whether the State has proven beyond a reasonable doubt the following two elements:

1. (Defendant) was previously convicted of Giving False Information Concerning the Commission of a Crime in violation of Florida Statute 837.05(1).

Give 2a and/or Zb as applicable.

2. a. The information (defendant) gave to (name of law enforcement officer) was communicated orally and (name of law enforcement officer’s) account of that information was corroborated by [an audio recording or audio recording in a video of that information] [a written or recorded statement made by (defendant) ] [another person who was present and who heard (defendant) give the information to (name of law enforcement officer) ].
b. The information (defendant) gave to (name of law enforcement officer) was communicated in writing.

Lesser Included Offenses

No lesser included offenses have been identified for this offense. See Silvestri v. State, 382 So.2d 351, 354 (Fla. 4th DCA 1976).

Comment

See Wright v. State, 586 So.2d 1024,1030 (■F-laA-99-l-)-on-how-4o-instr-uct-the -jury- ■ on who-qualifies as a law-enforcement-officer.See section 843.0R Fla. Stafi for a list of law-enforcement-officers-.- “Law enforcement officer” is not defined in chapter 837, Florida Statutes, or in case law interpreting and applying section 837.05. Trial judges may consult sections 790.001, 934.02, and 943.10 in deciding whether and how to define “law enforcement officer” for the jury.

For the enhancement section, there is no case law about whether an adjudication of guilt is necessary for there to be a prior conviction.

This instruction was adopted in 2007 [965 So.2d 811] and amended in 2014.

21.6 GIVING FALSE INFORMATION CONCERNING THE COMMISSION OF A CAPITAL FELONY

§ 887.05(2), Fla. Stat.

To prove the crime of Giving False Information Concerning the Commission of a Capital Felony, the State must prove the following six elements beyond a reasonable doubt:

1. (Defendant) knowingly gave information about the alleged commission of a crime.
2. (Defendant) knew the information was false.
3. The crime alleged was a capital felony.
4. (Defendant) gave the false information to (name of the law enforcement officer).
5. (Name of law enforcement officer) was a law enforcement officer.
6. (Defendant) knew that (name of law enforcement) was a law enforcement officer.

The court now instructs you that (crime alleged) is a capital felony^ and that a (do not name the officer, instead insert his or her official position of-lcm enforcement officer, such as deputy sheriff or police officer) is a law enforcement officer.

Lesser Included Offenses

Comment

See Wright v. State, 586-So.-2d-lQ24T-l-Q30 (-F-la.-1991) - on-how- to instruct the jury on who qualifies- as-a-law-enforcement-offieer-r gee — Florida Statute § 843.01 for a list- of law enforcement officers. “Law enforcement officer” is not defined in chapter 837, Florida Statutes, or in case law interpreting and applying section 837.05. Trial judges may consult sections 790.001, 934.02, and 943.10 in deciding whether and how to define “law enforcement officer” for the jury.

Attempt is not a lesser included offense. See Silvestri v. State, 332 So.2d 351, 354 (Fla. 4th DCA1976).

This instruction was adopted in 2007 [965 So.2d 811] SC07-325, Corrected ■ Opinion, August 30, 2007] and amended in 2014.

22.5 SETTING UP, PROMOTING, OR CONDUCTING A LOTTERY

§ 849.09(l)(a), Fla. Stat.

To prove the crime of [Setting Up] [Promoting]5[Conducting a Lottery], the State must prove beyond a reasonable doubt that: (defendant) participated in [setting up]-[promoting] [conducting] a lottery-by (read from (charge).

(Defendant) [set up] [promoted] [conducted] a lottery for [money] [anything of value].

When the charge-goes-mto-detail-as-to-the modus operandi, it-would-be-proper to-add its-kmguage to the foregoing.

Definition

A “lottery” is a game of chance in which smaller sums of money or things of smaller value are risked for the chance of getting money or property of greater value upon the happening of an uncertain event. The three elements of a lottery are: (1) consideration — that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.

(It-is-not- necessary for the State to prove-that-the defendant - had exclusive control or management-of-the lottery, but [he][-she-3-must be shown to have exercised some of-the-elements of management of the lottery either-as-owner or-part-owner, or as an agent or employee of an owner or-pai-Lowner,

It.is not sufficient to show- that the defendant merely had possession-of or sold lottery tickets or had-possession of records of sale of lottery — tickets, but these circumstances, if established, may be-eonsidered with other evidence-in-determining — whetherguilt of actual participation in [setting up] [promoting] [conducting] a lottery has been proved.

If there is evidence of an exception referred to at the end of § 84.9.09(1), Fla.Stat., in § 849.092 Fla. Stat., § 849.0931, Fla. Stat., § 849.0935, Fla. Stat, or in § 849.161 Fla. Stat., an appropriate instruction should be given. When the charge goes into detail as-to-the-modus-operandi, it ivould be proper — to-add--it& language?

Lesser Included Offenses

Comment

See Blackburn v. Ippolito, 156 So.2d 550 (Fla.' 2d DCA 1963)(“[T3hings other than money can constitute a sufficient consideration, moving from the participants in such scheme to the operators without any cash outlay being made”) citing to Dorman v. Publix-Saenger-Sparks Theatres, 135 Fla. 284, 184 So. 886 (1938) (“The consideration required to support a simple contract need not be money or anything having a monetary value, but may consist of either a benefit to the promisor or a detriment to the promisee.”) and Little River Theatre Corporation v. State, 135 Fla. 854, 185 So. 855 (1939)(holding that increased attendance and receipts at a theater offering a “bank night” drawing satisfied the element of consideration, even though persons could participate in the drawing without purchasing a ticket).

This instruction was adopted in 1981 and amended in 2014.

25.15(a) RETAIL SALE OF DRUG PARAPHERNALIA

§ 893.147(6), Fla. Stat.

To prove the crime of Retail Sale of Drug Paraphernalia, the State must prove the following two elements beyond a reasonable doubt:

1. (Defendant) knowingly and willfully [sold] [offered for sale] at retail one or more objects defined as drug paraphernalia.
2. The object[s][was] [were]:

Give as applicable. § 893.1^5(12) (a)(c), (g)-(m)

(a) [a] metal, wooden, acrylic, glass, stone, plastic, or ceramic pipe[s].
(b) [a] water pipe[s].
(c) [a] carburetion tube[s] and device[s].
(d) [a] chamber pipe[s].
(e) [a] carburetor pipe[s].
(f) [an] electric pipe[s].
(g) [an] air-driven pipe[s].
(h) [a] chillum[s].
(i) [a] bong[s].
Ci) [an] ice pipe[s] or [a] chiller[s].

Definitions.

“Knowingly” means with actual knowledge and understanding of the facts or the truth.

“Willfully” means intentionally, knowingly, and purposely.

The term “drug paraphernalia” means an object used, intended for use, or designed for use in ingesting, inhaling, or otherwise introducing cannabis, cocaine, hashish, hashish oil, or nitrous oxide into the human body.

Relevant factors. § 893.11.6, Fla. Stat.

In addition to all other logically relevant factors, the following factors shall be considered in determining whether an object is drug paraphernalia:

1. Statements by an owner or by anyone in control of the object concerning its use.
2. The proximity of the object, in time and space, to a direct violation of the drug laws.
3. The proximity of the object to controlled substances.
4. The existence of any residue of controlled substances on the object.
5. Evidence of the intent of an owner, or of anyone in control of the object, to deliver it to persons whom [he][she] knows, or should reasonably know, intend to use the object to facilitate a violation of the drug laws. The innocence of an owner, or of anyone in control of the object, as to a direct violation of the drug laws shall not prevent a finding that the object is intended for use, or designed for use, as drug paraphernalia.
6. Instructions, oral or written, provided with the object concerning its use.
7. Descriptive materials accompanying the object which explain or depict its use.
8. Any advertising concerning its use.
9. The manner in which the object is displayed for sale.
10. Whether the owner, or anyone in control of the object, is a legitimate supplier of like or related items to the community, such as a licensed distributor or dealer of tobacco products.
11. Evidence of the ratio of sales of the object or objects to the total sales of the business enterprise.
12. The existence and scope of legitimate uses for the object in the community.
13. Expert testimony concerning its use.

Lesser Included Offenses

No lesser included offenses have been identified for this offense.

Comment

It is unclear whether the exception for pipes primarily made of briar, meerschaum, clay, or corn cob is an element or an affirmative defense. In the absence of case law, trial judges will have to make that determination if the issue arises.

It is error to inform the jury of a prior violation of Retail Sale of Drug Paraphernalia. Therefore, if the information or indictment contains an allegation of one or more prior violations, do not read that allegation and do not send the information or indictment into the jury room. If the defendant is found guilty of a Retail Sale of Drug Paraphernalia, the historical fact of a previous violation shall be determined beyond a reasonable doubt in a bifurcated proceeding. See State v. Harbaugh, 754 So.2d 691 (Fla.2000).

This instruction was adopted in 2014.

29.13 AGGRAVATED ANIMAL CRUELTY [-FELONY]

§ 828.12(2), Fla. Stat.

To prove the crime of Aggravated Animal Cruelty, the State must prove the following two elements beyond a reasonable doubt:

L (Defendant) [intentionally committed an act to an animal] [or] [owned or had custody or control of an animal and failed to act] which-resulted in [the excessive or repeated-infliction-of unnecessary pain or suffering to an animal] [an-animaPs-eruel-death]T
2. (Defendant’s) [act][or] [failure to act] resulted in [excessive or repeated infliction of unnecessary pain or suffering to the animal] [or] [the animal’s cruel death].

Give if applicable. Enhancement. § 828.12(2)(a), Fla. Stat.

If you find (defendant) guilty of Aggravated Animal Cruelty, you must then determine whether the State proved beyond a reasonable doubt that [he][she] knowingly and intentionally tortured or tormented an animal, and in so doing, [injured] [mutilated] [killed] the animal.

Definition of “cruelty”, if cruel death charged. § 828.02, Fla. Stat. Only read definition for terms “Torture” or “Torment” when State seeks sentencing enhancements pursuant to § 828.12(2)(a), Fla. Stat.

“Cruelty” [“Torture”] [“Torment”] includes any act, omission, or negligence whereby unnecessary or unjustifiable pain or suffering is caused, permitted, or allowed to continue when there is reasonable remedy or relief, except when done in the interest of medical science.

Only read definition for ■ terms.‘‘Torture” or ■‘Torment’--whenState-seeks-sen-tencing — enhancements—pursuant—to §....828a2(&X-a)T-Fda^Siatr

Lesser Included Offenses

No ■ lesser -included-offenses-have-been identified-for-this-offensor

Comment

§ 828.12(3) Fla. Stat.

A person who commits multiple acts of Aggravated Animal Cruelty against an animal may be convicted of multiple counts of Aggravated Animal Cruelty. Also, a person who commits Aggravated Animal Cruelty against more than one animal may be convicted of multiple counts of Aggravated Animal Cruelty.

This instruction was adopted in 2008 [976 So.2d 1081] and amended in 2014.

29.13(a) ANIMAL CRUELTY (MISDEMEANOR)

§ 828.12(1), Fla. Stat.

To prove the crime of Animal Cruelty, the State must prove the following element beyond a reasonable doubt that:

Give a, b, or c as applicable.

(Defendant)

a. unnecessarily [overloaded] [over-drove] [tormented] [mutilated] [killed] an animal.
b. deprived an animal of necessary [sustenance] [shelter].
c. carried an animal in or upon a vehicle [or otherwise] in a cruel or inhumane manner.

Definition. Give if applicable.

[“Torment”] [A “cruel” manner] includes every act, omission, or neglect whereby unnecessary or unjustifiable pain or suffering is caused^ permitted, or allowed to continue when there is reasonable remedy or relief, except when in the interest of medical science.

Lesser Included Offenses

No lesser included offenses have been id6ntified-for-this-offens67

ANIMAL CRUELTY — 828.12(1) CATEGORY ONE CATEGORY TWO FLA. STAT. INS. NO. None Attempt 777.04(1) 5J

Comment

This instruction was adopted in 2008 [994 So.2d 1038] and amended in 2014.

      . Some of the instructions are amended by changing their titles. We use the new titles here.

      . Section 776.051(1), Florida Statutes (2013), provides:
      A person is not justified in the use of force to resist an arrest by a law enforcement officer, or to resist a law enforcement officer who is engaged in the execution of a legal duty, if the law enforcement officer was acting in good faith and he or she is known, or reasonably appears, to be a law enforcement officer.

      . The statute that makes it a crime to set up, promote, or conduct a lottery does not define the term "lottery.” See § 849.09, Fla. Stat. (2013). Instruction 22.5 includes the following definition:
      A "lottery” is a game of chance in which smaller sums of money or things of smaller value are risked for the chance of getting money or property of greater value upon the happening of an uncertain event. The three elements of a lottery are: (1) consideration — that is, a bet or thing ventured; (2) a prize; and (3) the award or winning of the prize by lot or chance.

      . In addition to the offense of setting up, promoting, or conducting a lottery, see § 849.09(l)(a), the statute forbids disposing of money or property by means of a lottery, § 849.09(l)(b); conducting a lottery drawing for prizes by lot or chance or advertising one, § 849.09(l)(c); aiding or assisting in a lottery or drawing, § 849.09(l)(d); attempting to conduct or advertise a lottery, § 849.09(l)(e); possessing a device for conducting a lottery, § 849.09(l)(f); selling, offering to sell, or transmitting a lottery ticket or a share of one, § 849.09(1 )(g); possessing a lottery ticket or evidence of a share of one, § 849.09(l)(h); aiding or assisting in the sale, disposal, or procurement of a lottery ticket or a share of one, § 849.09(l)(i); possessing any lottery advertisement, circular, poster, pamphlet, or list or schedule of prizes, § 849.09(1)6); and possessing papers, records, or instruments to be used in connection with lotteries or other illegal gambling, § 849.09(l)(k).

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


source: Caselaw Access Project

author: PER CURIAM. PARIENTE, J., CANADY, J.,

license: Public Domain

text:
    James ROBERTSON, Appellant, v. STATE of Florida, Appellee.
    No. SC13-443.
    Supreme Court of Florida.
    July 10, 2014.

      Howard L. Dimmig, II, Public Defender, and Steven L. Bolotin, Assistant Public Defender, Bartow, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL; Stephen D. Ake, Assistant Attorney General, Tampa, FL, for Appel-lee.
   PER CURIAM.

This case is before the Court on appellate counsel’s amended motion to withdraw from the representation of James Robertson, a prisoner under sentence of death whose direct appeal of his first-degree murder conviction and death sentence is currently pending before this Court under article V, section 3(b)(1), of the Florida Constitution. In the motion, appellate counsel advises this Court that his client, Robertson, wishes to argue in favor of the death sentence. Citing rule 4-1.2(a) of the Rules Regulating The Florida Bar, which requires a lawyer to abide by his or her client’s decisions concerning the objectives of representation, appellate counsel seeks an order from this Court permitting him to withdraw from representation to avoid an alleged violation of his ethical responsibility to his client. For the following reasons, we deny the motion to withdraw.

First, article V, section 3(b)(1), of the Florida Constitution states that this Court “[sjhall hear appeals from final judgments of trial courts imposing the death penalty.” The Legislature has mandated in section 921.141(4), Florida Statutes (2013), in pertinent part, that “[t]he judgment of conviction and sentence of death shall be subject to automatic review by the Supreme Court of Florida.” Thus, our mandatory review of both the validity of the judgment and the propriety of the death sentence is “automatic” and does not depend upon the acquiescence of the death-sentenced defendant.

Our review of each sentence of death is also critical to the maintenance of a constitutional capital sentencing scheme in this state. In 1988, this Court held that “even though [the defendant] expressed a desire to be executed, this Court must, nevertheless, examine the record to be sure that the imposition of the death sentence complies with all the standards set by the Constitution, the Legislature, and the courts.” Goode v. State, 365 So.2d 381, 384 (Fla.1978). We recognized our obligation to “foster uniformity in death-penalty law” in Tillman v. State, 591 So.2d 167, 169 (Fla.1991), and more recently, in Yacob v. State, 136 So.3d 539, 549 (Fla.2014), we reemphasized that the death penalty is reserved for only the most aggravated and least mitigated of cases. In that decision, we again noted our obligation to assure that the death penalty is not imposed in an arbitrary or capricious manner in this state and explained that our review is essential to the viability and validity of state law allowing for imposition of the death penalty in Florida. See id. at 546-47.

The United States Supreme Court in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), explained that its earlier decision in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 L.Ed.2d 346 (1972), “mandates that where discretion is afforded a sentencing body on a matter so grave as the determination of whether a human life should be taken or spared, that discretion must be suitably directed and limited so as to minimize the risk of wholly arbitrary and capricious action.” Gregg, 428 U.S. at 189, 96 S.Ct. 2909. The only way for this Court to ensure that a death sentence is not arbitrarily or capriciously imposed is to provide meaningful appellate review of each death sentence. In fact, the Supreme Court in Gregg expressly noted as follows in upholding the Georgia capital sentencing scheme as constitutional:

[T]he Georgia statute has an additional provision designed to assure that the death penalty will not be imposed on a capriciously selected group of convicted defendants. The new sentencing procedures require that the State Supreme Court review every death sentence to determine whether it was imposed under the influence of passion, prejudice, or any other arbitrary factor, whether the evidence supports the findings of a statutory aggravating circumstance, and “[w]hether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.”

Id. at 204, 96 S.Ct. 2909 (emphasis added). The Supreme Court explained that the “provision for appellate review in the Georgia capital-sentencing system serves as a check against the random or arbitrary imposition of the death penalty” and “[i]n particular, the proportionality review substantially eliminates the possibility that a person will be sentenced to die by the action of an aberrant jury.” Id. at 206, 96 S.Ct. 2909. Florida law similarly requires that this Court shall automatically review every judgment of conviction and sentence of death. § 921.141(4), Fla. Stat.

Our long-established precedent has given life to these constitutional and statutory safeguards against an unconstitutional capital sentencing scheme, even in cases where the defendant expresses a desire to be executed. In Klokoc v. State, 589 So.2d 219, 221-22 (Fla.1991), we denied the defendant’s request to dismiss the direct appeal, stating that this Court required the benefit of an adversary proceeding to provide a meaningful review of both the judgment and the sentence. In Ocha v. State, 826 So.2d 956, 964 (Fla.2002), we explained that “Klokoc reiterates this Court’s interest in ensuring that every death sentence is tested and has a proper basis in Florida law.” The Court in Ocha also noted that a death-sentenced defendant may under certain circumstances waive his right to present mitigating evidence at trial, “yet have appellate counsel appointed against his wishes.” Id.

While appellate counsel urges that we should now recede from Klokoc and Ocha, which require counsel to provide diligent appellate advocacy addressed to both the judgment and the sentence, a decision to depart from the principles of stare decisis cannot be taken lightly. “The presumption in favor of stare decisis is strong,” North Florida Women’s Health & Counseling Services, Inc. v. State, 866 So.2d 612, 637-38 (Fla.2003), although not unwavering. The doctrine is said to bend “where there has been a significant change in circumstances since the adoption of the legal rule or where there has been an error in legal analysis.” Brown v. Nagelhout, 84 So.3d 304, 309 (Fla.2012) (quoting Puryear v. State, 810 So.2d 901, 905 (Fla.2002)). The circumstances of this case meet neither of these requirements.

This Court has also made clear that in order to depart from stare decisis for an error in legal analysis, the “gravity of the error and the impact of departing from precedent must be carefully assessed.” Id. We have recognized sufficient gravity where the prior decision is “unsound in principle” or “unworkable in practice.” Id. (quoting Garcia v. San Antonio Metro. Transit Auth, 469 U.S. 528, 547, 105 S.Ct. 1005, 83 L.Ed.2d 1016 (1985)). Again, the circumstances in this case meet neither of these requirements to justify departure from our established precedent, which has served to effectuate the duty of this Court to provide automatic, mandatory review of both judgments of conviction and sentences of death in capital cases.

We conclude that there is simply no reason to depart from our reliable, established, and necessary procedure for requiring current counsel to proceed with diligent appellate advocacy to facilitate our mandatory review in death penalty cases where the defendant, in effect, seeks this Court’s assistance in being put to death. By contrast, there are numerous reasons why a decision to recede from Klokoc and Ocha would be both erroneous and unwise, and would result in a serious threat to the soundness of Florida’s capital sentencing scheme — not the least of which is the disruption and delay that would be engendered by granting the motion to withdraw.

In sum, we discern no ethical violation in requiring current counsel to continue to prosecute this appeal fully for the benefit of the Court in meeting its statutory and constitutional duties. Accordingly, the motion to withdraw is hereby denied. Consistent with this Court’s prior precedent in analogous situations, and as requested in the motion, Robertson may seek leave to file a pro se supplemental brief setting forth his personal positions and interests with regard to the subject matter of the appeal. See Klokoc, 589 So.2d at 222.

It is so ordered.

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

PARIENTE, J., concurs with an opinion in which LABARGA, C.J., and PERRY, J., concur.

QUINCE, J., dissents.

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

PARIENTE, J.,

concurring.

I fully concur in the majority opinion denying the motion to withdraw. I write separately to more completely explain my reasoning on two issues raised by the motion that the majority correctly rejects: (1) that requiring appellate counsel to file an adversarial brief arguing against the death penalty would violate counsel’s ethical obligations; and (2) that the procedure this Court articulated in Klokoc v. State, 589 So.2d 219, 221-22 (Fla.1991), violates the defendant’s “personal autonomy” to choose not to argue against the conviction or sentence.

First, I conclude that requiring appellate counsel for a death-sentenced defendant to argue against the death penalty on direct appeal does not raise any ethical concerns, even when the defendant wishes to argue in favor of the death sentence. Typically, the defendant exercises the “ultimate authority” over the “fundamental decision” of whether to “take an appeal.” See Puglisi v. State, 112 So.3d 1196, 1204-05 (Fla.2013) (explaining that there are four “fundamental decisions” that belong solely to the defendant — whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal). Florida’s capital sentencing scheme, however, explicitly removes this decision from the purview of a defendant who has been sentenced to death. Because a capital defendant’s appeal of the judgment of conviction and sentence of death is mandated by section 921.141(4), Florida Statutes (2013), which provides that the judgment and sentence are subject to “automatic” appellate review, the defendant’s “fundamental decision” to “take an appeal” is not implicated.

Moreover, pursuant to the ethical rules governing attorney conduct, the defendant is not the “captain of the ship” regarding which issues to raise in an appeal, as appellate counsel has explicitly acknowledged in the motion to withdraw. See Amended Motion to Withdraw at 2, Robertson v. State, No. SC13-443 (Fla. Jan. 31, 2014) (stating that decisions such as “what issues to raise (on appeal)” are “within the attorney’s ambit, after consultation with the client”). Appellate counsel also has stated that, after reviewing the record, “there are several legal issues” that he “could credibly raise.” Id. at 6.

This much is therefore clear. Based on the highly significant state interests in ensuring that the death penalty is administered fairly, reliably, and uniformly — as embodied in the Florida Constitution and in section 921.141 of the Florida Statutes— a capital defendant cannot choose in the first instance whether to pursue the direct appeal. There is thus no “fundamental decision” over which the defendant exercises the “ultimate authority” implicated in this situation. In addition, while appellate counsel must consult with the defendant, the defendant does not have the right to determine which issues to raise during the direct appeal. Finally, this particular defendant is represented by an attorney who “could credibly raise” legal issues that may cast doubt on whether the death penalty was fairly, reliably, and uniformly imposed in this case.

Though infrequent, this situation has arisen previously, and no ethical violation has ever been suggested, much less found. See, e.g., Hamblen v. State, 527 So.2d 800, 802 & n. 2 (Fla.1988) (denying motion to withdraw, despite the death-sentenced defendant’s clear desire not to appeal); Klokoc, 589-So.2d at 222 (denying motion to dismiss the direct appeal and requiring counsel to file an adversarial brief, despite the death-sentenced defendant’s desire not to appeal); Hill v. State, 656 So.2d 1271, 1272 (Fla.1995) (denying motion to proceed pro se and discharge appellate counsel during the direct appeal of a death penalty case); Ocha v. State, 826 So.2d 956, 964 (Fla.2002) (reaffirming Klolcoc and stating that it is “not inconsistent for Ocha to waive his right to present mitigating evidence at the trial level, yet have appellate counsel appointed against his wishes”).

Despite our prior precedent, current appellate counsel asserts in the motion to withdraw that requiring him to file an adversarial brief will result in a violation of Rule Regulating The Florida Bar 4-1.2(a). In my view, this argument is unavailing because it fails to take into account both that counsel cannot be deemed to violate an ethical rule based on conforming to a court order, see R. Reg. Fla. Bar 4-3.4(c), and that this Court, which has the ultimate responsibility for interpreting the ethical rules, has previously determined that no ethical violation exists. See art. V, § 15, Fla. Const, (providing that this Court “shall have exclusive jurisdiction to regulate the admission of persons to the practice of law and the discipline of persons admitted”); R. Reg. Fla. Bar. 3-1.2 (“The Supreme Court of Florida has the inherent power and duty to prescribe standards of conduct for lawyers, to determine what constitutes grounds for discipline of lawyers, to discipline for cause attorneys admitted to practice law in Florida, and to revoke the license of every lawyer whose unfitness to practice law has been duly established.” (emphasis added)).

Appellate counsel is also not required, through his representation of Robertson during the direct appeal, to divulge any confidential information from the client. See R. Reg. Fla. Bar 4-1.6 (providing that, in the absence of informed consent from the client, a lawyer must not reveal information relating to the representation). Likewise, appellate counsel need not raise or discuss any matters outside the record and the legal issues that are properly presented to this Court during its review of the death sentence “to ensure the uniform application of law, evidentiary support, and proportionality.” Ocha, 826 So.2d at 964; see also R. Reg. Fla. Bar 4-1.2 cmt. (stating that “a lawyer is not required to pursue objectives or employ means simply because a client may wish that the lawyer do so”). Accordingly, I see no ethical conflict in requiring current counsel to provide diligent appellate advocacy addressed to both the judgment and death sentence, as explained in Klokoc.

I also find counsel’s suggestion that the procedure articulated in Klokoc violates the defendant’s “personal autonomy” to be equally unavailing. The United States Supreme Court has held, with respect to a defendant’s right to self-determination, that the “status of the accused defendant, who retains a presumption of innocence throughout the trial process, changes dramatically when the jury returns a guilty verdict.” Martinez v. Court of Appeal of Cal., 528 U.S. 152, 162, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000). As this Court has explained, “[wjhile a defendant has a constitutional right to self-representation and self-determination at trial, these rights do not continue to the same degree after the conviction.” Lambrix v. State, 124 So.3d 890, 899 (Fla.2013), cert, denied, — U.S. —, 134 S.Ct. 1789, 188 L.Ed.2d 760 (2014). Even as related to postconviction proceedings — which, unlike the automatic direct appeal, may be waived under certain circumstances, see Fla. R.Crim. P. 3.851 (i) — this Court has cautioned that “[a]ny right of self-determination and self-representation ... does not outweigh this Court’s solemn duty to ensure that the death penalty is imposed in a fair, consistent, and reliable manner.” Lambrix, 124 So.3d at 900.

Indeed, this Court has long explained that its review of death penalty eases under article V, section 3(b)(1), of the Florida Constitution and section 921.141, Florida Statutes, “begin[s] with the premise that death is different.” Fitzpatrick v. State, 527 So.2d 809, 811 (Fla.1988) (citing State v. Dixon, 283 So.2d 1, 7 (Fla.1973)). As further stated by this Court in describing its appellate review of capital cases, a “high degree of certainty in procedural fairness as well as substantive proportionality must be maintained in order to insure that the death penalty is administered evenhandedly.” Id. This is actually of particular concern when the defendant expresses a desire to be executed because “it is not necessarily those most deserving of the death penalty (e.g., the most aggravated and least mitigated) who seek its imposition.” Muhammad v. State, 782 So.2d 348, 369 (Fla.2001) (Pariente, J., specially concurring).

The American Bar Association’s Standards for Criminal Justice and Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases— which provide a guide to determining the reasonableness of attorney conduct, see Rompilla v. Beard, 545 U.S. 374, 387, 125 S.Ct. 2456,162 L.Ed.2d 360 (2005) — specifically explain that a defendant’s stated desire to plead guilty or be executed cannot form the basis for an attorney’s competent representation of the defendant. See, e.g., ABA Standards for Criminal Justice 4-4.1 (providing that defense counsel should conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty, and that this duty exists regardless of the defendant’s stated desire to plead guilty). In fact, the death penalty standards explicitly state that it is “ineffective assistance for counsel to simply acquiesce” to a client’s desires to be executed. ABA Guidelines for the Appointment & Performance of Defense Counsel in Death Penalty Cases 10.5 cmt. In other words, not only does the client have no right to commit state-assisted suicide, but it is actually ineffective — and therefore unethical — conduct for an attorney to accede to this request.

This Court has carefully considered these factors in previous cases and has reached the conclusion — which is well-supported by statute, case law, and the ethical rules — that a defendant does not possess a right to self-determination that encompasses the right to forego counsel and the automatic direct appeal of a death sentence. As advocated by the State in its response to the motion in this case, the procedure set forth in Klokoc, which requires the attorney to file an adversarial brief but permits the defendant to also file a pro se statement explaining the reasons for not wanting to appeal, remains a balanced, efficient, and appropriate way to handle this situation. That the State does not object to requiring appellate counsel to file an adversarial brief in accordance with Klokoc indicates that all parties have a heightened interest in ensuring that the direct appeal of a death penalty case is conducted in a thorough and precise manner.

For all these reasons, I conclude that there is no ethical conflict in requiring appellate counsel to adhere to the procedure articulated by this Court in Klokoc, and that nothing in Klokoc results in a violation of the defendant’s “personal autonomy.” Accordingly, I concur in the majority’s decision to deny the motion to withdraw.

LABARGA, C.J., and PERRY, J., concur.

CANADY, J.,

dissenting.

Whether to “take an appeal” is among the “fundamental decisions” that “the accused [in a criminal case] has the ultimate authority to make.” Jones v. Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). The accused in a criminal case also has a basic right to a lawyer who is faithful to the ethical requirement of Rule Regulating the Florida Bar 4-1.2(a) that “a lawyer shall abide by a client’s decisions concerning the objectives of representation.” The majority unjustifiably infringes on Mr. Robertson’s right to make the fundamental decision of whether to pursue the appeal of his death sentence as well as his right to a lawyer who will follow the ethical imperative to abide by Mr. Robertson’s decision concerning the objectives of rep-reservation. I dissent from this infringement of Mr. Robertson’s rights.

I.

None of the grounds relied on by the majority to justify its decision can withstand scrutiny. The majority falls short in its efforts to find a basis for this decision in the Florida Constitution, the Florida death penalty statute, or the United States Supreme Court’s death penalty jurisprudence. Although prior decisions of this Court provide support for precluding the waiver of appeal by a defendant under a sentence of death, none of those decisions rests on a reasoned basis.

A.

The Florida Constitution, in article 5, section 3(b)(1), provides a right of appeal to this Court for defendants on whom a sentence of death has been imposed. But the Constitution does not prohibit waiver of the right of appeal by a competent defendant. Article 5, section 3(b)(1), states that “[t]he Supreme Court ... [sjhall hear appeals from final judgments of trial courts imposing the death penalty and from decisions of district courts of appeal declaring invalid a state statute or a provision of the state constitution.” Nothing in this constitutional provision suggests that a defendant in a death penalty case is precluded from waiving the right of appeal, any more than the provision suggests that parties in cases declaring invalid a state statute or provision of the Florida Constitution are precluded from waiving their right of appeal.

B.

And nothing in section 921.141(4), Florida Statutes (2013), alters — or could alter— either the nature of the right of appeal granted by the Florida Constitution or the nature of this Court’s jurisdiction. The statutory provision regarding “automatic review by the Supreme Court of Florida” merely recognizes that death cases are directly appealable to this Court and that we have mandatory — that is, nondiscre-tionary — jurisdiction over such cases. The statute by no means expressly precludes a defendant from waiving the defendant’s right of appeal, and the statutory context provides no basis for reading such a limitation on the rights of defendants into the statute. An automatic appeal is not equivalent to a non-waivable appeal. Our decisions precluding the waiver of appeal by a defendant under a sentence of death twists this statutory provision to reach a result that is at odds with the recognized ultimate authority of a criminal defendant to make the decision of whether to take an appeal. Jones, 463 U.S. at 751, 103 S.Ct. 3308.

C.

Finally, nothing in the jurisprudence of the Supreme Court bars a defendant under a sentence of death from waiving the right to appeal the sentence. The Supreme Court’s recognition that the “provision for appellate review” under state capital-sentencing schemes “serves as a check against the random or arbitrary imposition of the death penalty,” Gregg v. Georgia, 428 U.S. 153, 206, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976), does not entail the denial of an individual defendant’s right to decide whether to “take an appeal,” Jones, 463 U.S. at 751,103 S.Ct. 3308.

Indeed, the Supreme Court’s death penalty jurisprudence rests on the recognition that “the Eighth Amendment guarantees individuals the right not to be subjected to excessive sanctions.” Roper v. Simmons, 543 U.S. 551, 560, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) (emphasis added). It is not based on some abstract right of the state to ensure appropriate sentences but on the concrete right of individuals to be free of cruel and unusual punishments. In this case, it is Mr. Robertson’s right that is at issue, and his decision concerning whether to pursue an appeal to vindicate that right — as well as his right to a lawyer who will support that decision — should not be annulled. Respect for the individual dignity of the defendant requires respect for his decision of whether to pursue an appeal and for his right to a lawyer who will not work against him.

II.

A defendant under a sentence of death should not be deprived of basic rights that are afforded to all other criminal defendants. Defense counsel in this ease has been placed in an untenable ethical position because Mr. Robertson has not been allowed to waive his right of appeal. I would remand this matter to the trial court to determine whether Mr. Robertson has made a knowing, intelligent, and voluntary waiver of his right of appeal. See Durocher v. Singletary, 623 So.2d 482, 484-85 (Fla.1993) (holding that a competent prisoner on death row may waive his right to collateral counsel and postconviction proceedings and remanding the case to the trial court for “the trial judge forthwith to conduct a Faretta[v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975),]-type evaluation of Durocher to determine if he understands the consequences of waiving collateral counsel and proceedings”). If Mr. Robertson has made a knowing, intelligent, and voluntary waiver, this appeal should be dismissed.

POLSTON, J., concurs.


author: LaROSE, Judge.

text:
    STATE of Florida, Appellant, v. Lisa ROBERTS, Appellee.
    No. 2D13-1213.
    District Court of Appeal of Florida, Second District.
    March 28, 2014.
    Rehearing Denied July 14, 2014.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Peter Koclanes, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellee.
   LaROSE, Judge.

The State appeals the trial court’s order dismissing the information alleging fraudulent use of personal identification against Lisa Roberts. See § 817.568(2)(a), Fla. Stat. (2010). We have jurisdiction. See Fla. R. App. P. 9.140(c)(1)(A). Because the trial court erred in ruling that it lacked jurisdiction, we reverse.

The State alleged that Ms. Roberts, an Indiana resident, used her aunt’s name and social security number to establish an Indiana utility account. The aunt lives in Florida. The trial court dismissed the case for lack of jurisdiction; it concluded that no part of the offense occurred in Florida. See § 910.005(l)(a), Fla. Stat. (2010) (authorizing Florida prosecution for offenses committed wholly or partly within Florida). However, because Ms. Roberts’ failure to obtain her aunt’s prior consent was both an omission of a duty imposed by Florida law and an element of the underlying offense, the offense was committed, at least in part, in Florida.

Jurisdiction Statute

Section 910.005, governing State criminal jurisdiction, provides as follows:

(1) A person is subject to prosecution in this state for an offense that she or he commits, while either within or outside the state, by her or his own conduct or that of another for which the person is legally accountable, if:
(a) The offense is committed wholly or partly within the state:
(2) An offense is committed partly within this state if either the conduct that is an element of the offense or the result that is an element, occurs within the state....
(3) An offense that is based on an omission to perform a duty imposed by the law of this state is committed within the state, regardless of the location of the offender at the time of the omission.

(Emphasis added.) Thus, Florida may exercise jurisdiction over Ms. Roberts if an element of the offense is an omission to perform a duty imposed by Florida law.

Elements of Criminal Use of Personal Identification

Section 817.568 provides, in pertinent part, as follows:

(2)(a) Any person who willfully and without authorization fraudulently uses, or possesses with intent to fraudulently use, personal identification information concerning an individual without first obtaining that individual’s consent, commits the offense of fraudulent use of personal identification information ....

(Emphasis added.) Accordingly, fraudulent use of personal identification information includes the following elements:

(1) willfully and fraudulently using or possessing with intent to fraudulently use;
(2) another person’s personal identification information; ...
(3) without that person’s authorization or prior consent.

Sibley v. State, 955 So.2d 1222, 1226 (Fla. 5th DCA 2007) (emphasis added) (citing § 817.568(2)(a), Fla. Stat (2003)); accord Williams v. State, 57 So.3d 904, 905 (Fla. 2d DCA 2011) (holding that defense that victim consented to defendant’s use of personal identification information, if proven, would render State unable to establish every element of the crime); Townshend v. State, 965 So.2d 236, 237 (Fla. 5th DCA 2007) (vacating conviction for criminal use of personal identification information where State failed to prove that victim “had not authorized Mr. Townshend to use his personal information”).

Omission of a Duty Imposed by Florida Law

Ms. Roberts’ failure to obtain her aunt’s prior consent — or the result that she fraudulently used the information without such consent — is an element of the offense. See § 817.568(2)(a); Williams, 57 So.3d at 905. Ms. Roberts is subject to prosecution in Florida if that element occurred in Florida. See § 910.005(l)(a). The inquiry calls upon us to determine whether the failure to obtain her aunt’s consent (or its result) constitutes an omission to perform a duty imposed by Florida law. See § 910.005(2), (3). We conclude that it does.

Case Law

No Florida case is directly on point. However, analogous cases from Florida and other jurisdictions support our conclusion. For example, in State v. Costa, 558 So.2d 525 (Fla. 1st DCA 1990), the First District held that Florida had criminal jurisdiction for charges involving the appellee’s moving of his children from his Louisiana home to Italy, in violation of a Florida restraining order. The offense was based on an omission to perform the duty imposed by the Florida court order and section 787.04(1), Florida Statutes (1987) (felony to remove a child in violation of court order).

Similarly, in People v. Caruso, 119 Ill.2d 376, 116 Ill.Dec. 548, 519 N.E.2d 440 (1987), the court held that the father’s acts of harboring his children in Ohio and failing to return them to the mother in violation of an Illinois custody order subjected him to prosecution in Illinois. The Illinois jurisdiction statute, almost identical to the Florida statute here, provided that “[a]n offense which is based on an omission to perform a duty imposed by the law of this State is committed within the State, regardless of the location of the offender at the time of the omission.” Id., 116 Ill.Dec. 548, 519 N.E.2d at 442. The Caruso court found this language consistent with the Supreme Court’s holding in Strassheim v. Daily, 221 U.S. 280, 285, 31 S.Ct. 558, 55 L.Ed. 735 (1911), that “ ‘[a]cts done outside a jurisdiction, but intended to produce and producing detrimental effects within it, justify a State in punishing the cause of the harm as if he had been present at the effect.’” Caruso, 116 Ill.Dec. 548, 519 N.E.2d at 442. Obviously, “the detrimental effects of defendant’s omission or failure to comply with the court order [wejre felt only in Illinois.” Id., 116 Ill.Dec. 548, 519 N.E.2d at 445. Caruso is also instructive in observing that the phrase “omission to perform a duty” indicates that the duty is an affirmative one, that is, a duty to act positively, rather than a passive duty of refraining to act. Id., 116 Ill.Dec. 548, 519 N.E.2d at 443.

Ms. Roberts’ duty to her aunt is best characterized as an affirmative obligation to obtain her prior permission in order to use her personal information to open a utility account, rather than a passive duty to refrain from failing to obtain prior permission. The Caruso court identified factors to consider in determining jurisdiction under the omission-to-perform-a-duty provision: (1) whether there is an alleged omission to perform a duty; (2) whether the charged offense is based on that omission, that is, “forms the foundation or essence of an offense,” even though the omission is not the offense’s only element; and (3) whether the interests to be protected by prohibiting the offense are substantially the same as the interests to be fulfilled by imposing the affirmative duty. Id., 116 Ill.Dec. 548, 519 N.E.2d at 443. All three factors weigh in favor of the State.

In State v. James, 276 Kan. 737, 79 P.3d 169 (2003), the appellee was the caretaker of dependent adults living in Kansas. The trial court convicted him of mistreating two of his Kansas charges by leaving them alone in a closed vehicle on a hot day across the border in Missouri. A Kansas statute prohibited omission of services necessary to maintain the health of a dependent adult. Id. at 175. The appellee argued that Kansas lacked jurisdiction because the offenses occurred in Missouri. Id. at 174. The Kansas jurisdictional statute included a provision nearly identical to section 910.005(3): “A crime which is based on an omission to perform a duty imposed by the law of this state, is committed within the state, regardless of the location of the person omitting to perform such duty at the time of the omission.” James, 79 P.3d at 174 (citing § 21-3104(3), Kan. Stat. Ann. (2000)). The court held that Kansas had jurisdiction because the crimes were based on an omission to perform a duty imposed by Kansas law — a “negative act done outside the State” — and the appellee’s location at the time of his omission was irrelevant. Id. at 175-76.

In State v. McGill, 115 Or.App. 122, 836 P.2d 1371 (1992), a tribal Indian was convicted of criminal possession of rented property. See Or. Rev. Stat. § 164.140(l)(a). He rented a television in Oregon, then failed to make payments and failed to return the television upon demand from the rental company. Section 164.140(l)(a) provided, in pertinent part, as follows:

(1) A person is guilty of criminal possession of rented or leased personal property if:
(a) After renting an item of personal property from a commercial renter of personal property under a written agreement which provides for the return of the item to a particular place at a particular time, the person falls to return the item as specified, is thereafter served by mail with a written demand to return the item, and knowingly fails to return the item within 10 business days from the date of mailing of the demand.

Id. at 1372 n. 1. On appeal, McGill argued that the state lacked jurisdiction because he was on the reservation, sovereign territory, when he stopped making payments. Id. at 1372.

The Oregon jurisdiction statute provided that jurisdiction for a crime of omission “reside[d] in the place where the legal duty omitted is required to be performed.” Id. at 1373 (citing Or.Rev.Stat. § 131.215(5)). The court held that the gravamen of the offense was failure to return the television to the shop in Oregon; because it was a crime of omission, jurisdiction resided in Oregon, where the legal duty omitted (returning the television) was required to be performed. Id. The legal duty to return the television — or, using the statutory language, to not fail (omit) to return it — was an element of criminal possession of rental property. As applicable here, McGill teaches that Ms. Roberts had a legal duty under Florida law to obtain her aunt’s prior consent to use her personal identification information — or, using the statutory language, not to use it without her aunt’s authorization or prior consent. The gravamen of the offense was failure to obtain her aunt’s prior consent, and because it was a crime of omission, jurisdiction resided in Florida.

We reverse and remand for further proceedings.

DAVIS, C.J., and KHOUZAM, J., Concur.


author: FERNANDEZ, J.

text:
    MILLS-TEL CORP., etc., Appellant, v. KATTOUR, INC., etc., et. al., Appellees.
    No. 3D13-885.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.
    Rehearing Denied July 29, 2014.
    Ferdie and Lones, Chartered and Ain-slee R. Ferdie, for appellant.
    Robert N. Pelier; Billbrough & Marks, P.A., and G. Bart Billbrough, for appellees.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   FERNANDEZ, J.

Mills-Tel Corp., etc., appeals the trial court’s final judgment entered in favor of Kattour, Inc., etc., and Foods of South Florida, Inc. (collectively, “Kattour”), as well as the trial court’s final order awarding Kattour attorney’s fees and costs against Mills-Tel. We affirm the final judgment, but reverse the award of attorney’s fees. Kattour concedes on appeal that the final judgment erroneously awarded attorney’s fees that included attorney time which predated the proposal for settlement service date. We thus reverse the award and remand to the trial court for entry of an amended final judgment after the trial court calculates attorney’s fees from the date of service of the proposal for settlement to the conclusion of the case.

Affirmed in part; reversed in part and remanded with instructions.


text:
    Julio AUGUSTINE, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2881.
    District Court of Appeal of Florida, Fourth District.
    May 14, 2014.
    Rehearing En Banc Denied Aug. 19, 2014.
    Carey Haughwout, Public Defender, and Jeffrey L. Anderson, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Julio Augustine was convicted of home invasion robbery with a firearm and armed false imprisonment. He received a sentence of life in prison as a prison releasee reoffender for the home invasion robbery and a sentence of thirty years in prison as a habitual violent felon for the false imprisonment. On appeal he raises five issues, only one of which merits discussion. Augustine claims that the cumulative effect of numerous improper arguments made by the prosecutor during closing argument constitutes fundamental error requiring reversal.

The transcript of the state’s closing argument reads like a primer for prosecutors entitled, “What Not to Say During Closing Argument.” Indeed, the prosecutor encouraged the jury to render a verdict based on its sympathy for the victim. See Wicklow v. State, 48 So.3d 85, 87 (Fla. 4th DCA 2010) (citations omitted) (finding that prosecutor’s comment, “[a]s is usually the case, the victim is on trial for something,” was an improper appeal “to the jury for sympathy for the victim”); Johns v. State, 832 So.2d 959, 962 (Fla. 2d DCA 2002) (finding prosecutor’s request to jury that it show sympathy for the victim was “clearly improper”). The prosecutor argued that an acquittal would be “unjust.” See Servís v. State, 855 So.2d 1190, 1194 (Fla. 5th DCA 2003) (“It is improper for an attorney to give a personal opinion as to the justness of the cause_”). The prosecutor invited the jury to return a guilty verdict based on what the jurors believed the “truth” was. See Northard v. State, 675 So.2d 652, 652-53 (Fla. 4th DCA 1996) (finding that prosecutor’s argument improperly invited jury to find defendant guilty based on a determination of the “truth” rather than a finding that the state established guilt beyond a reasonable doubt). The prosecutor suggested the jury could find Augustine carried a firearm during commission of the offense based on the victim’s belief that Augustine carried a firearm. See Dicks v. State, 75 So.3d 857, 859-60 (Fla. 1st DCA 2011) (recognizing that prosecutor erred in giving an incorrect interpretation of the law during closing argument); Butler v. State, 602 So.2d 1303, 1305 (Fla. 1st DCA 1992) (noting the state may not prove that defendant carried a firearm during a robbery “by presenting evidence of nothing more than the victim’s subjective belief that the defendant possessed a ‘firearm’ ”).

Likewise, the transcript of the defense counsel’s closing argument reads like a primer for defense attorneys entitled, “What You Must Say During Closing Argument.” Any one of the improper arguments here may have warranted reversal if preserved. But because defense counsel failed to object to the arguments, Augustine has no choice but to resort to a fundamental error argument on appeal.

“Fundamental error in closing argument is error that reaches 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.” Thompson v. State, 88 So.3d 322, 324 (Fla. 4th DCA 2012) (citations, quotation marks, and alteration omitted). See also Bell v. State, 108 So.3d 639, 650 (Fla.2013) (finding cumulative effect of prosecutor’s improper comments “did not affect [defendant’s] trial such that a guilty verdict could not have been obtained in their absence”). Although the state’s case was based entirely on circumstantial evidence, we cannot say that a conviction could not have been obtained absent the prosecutor’s improper arguments. Consequently, we affirm.

Affirmed.

MAY, CIKLIN and LEVINE, JJ., concur.

      . Defense counsel did object to one argument, but no ruling was secured. Thus, the objection did not preserve the issue for appeal. See Hall v. State, 92 So.3d 223, 225-26 (Fla. 4th DCA 2012) ("To be preserved, the issue or legal argument must be raised and ruled on by the trial court.”).


author: SUAREZ, J.

text:
    The VILLAGE AT DOLPHIN COMMERCE CENTER, LLC, Appellant, v. CONSTRUCTION SERVICE SOLUTIONS, LLC, Appellee.
    No. 3D13-1499.
    District Court of Appeal of Florida, Third District.
    May 21, 2014.
    Rehearing Denied July 17, 2014.
    Vincente F. Vaccarella and Craig R. Lewis, Ft. Lauderdale, for appellant.
    Daniels Kashtan and Joseph W. Downs III and Jeremy C. Daniels and Michael J. Shuman and Jordan Kay, Coral Gables; David B. Haber, Miami, and David T. Po-dien, for appellee.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   SUAREZ, J.

The Village at Dolphin Commerce Center, LLC (“the Owner”) appeals confirmation of an arbitration award in favor of Construction Service Solutions, LLC (“CSS”). We affirm.

In 2009, the Owner entered into a contract with CSS for construction of a warehouse. At the time the contract was signed CSS did not have a qualifying agent registered with the Department of Business and Professional Regulation. The construction of the warehouse did not go as planned, and in July 2010 CSS recorded a claim of lien against the property which was the subject of the contract. In September 2010, pursuant to the contract’s terms for dispute resolution, CSS filed a demand with the American Arbitration Association (“AAA”) for arbitration of its claim. In October 2010, the Owner filed its answering statement and affirmative defenses in the arbitration. As its first affirmative defense, the Owner asserted that the contract was unenforceable under section 489.128(1), Florida Statutes (2009), which states: “As a matter of public policy, contracts entered into on or after October 1, 1990, by an unlicensed contractor shall be unenforceable in law or in equity by the unlicensed contractor.”

The Owner also filed a counterclaim against CSS seeking damages from CSS.

At the same time, the Owner filed this action seeking a declaration that CSS’s claim of lien was invalid under section 489.128(1). CSS filed a counterclaim and also filed a Motion to Dismiss or to Compel Arbitration. After hearing, the trial court granted the motion to compel arbitration and stayed this action.

The parties proceeded to arbitrate. Through its first affirmative defense the Owner submitted the issue of enforceability to the panel. Neither party objected to the arbitration panel’s jurisdiction to hear that issue. The rules of the American Arbitration Association specifically state that any objection to the panel hearing an issue must be submitted with the answering statement or it is determined that the panel will have jurisdiction. See Rule 9(c) (Jurisdiction) of the Construction Industry Arbitration Rules of the American Arbitration Association (“A party must object to the jurisdiction of the arbitrator or to the arbitrability of a claim or counterclaim no later than the filing of the answering statement to the claim or counterclaim that gives rise to the objection.”). After twelve days of hearings, the arbitration panel issued an award in favor of CSS. CSS then filed a motion in the circuit court seeking confirmation of the award and the Owner filed a motion to vacate the award based on CSS’s failure to comply with section 489.128. The trial court referred the matter to a general magistrate.

After lengthy hearings, the magistrate issued a fourteen-page report containing findings of fact and conclusions of law, which affirmed the arbitration award and found that the issue of enforceability was submitted for arbitration and was properly determined by the panel. The trial court entered final judgment in favor of CSS for the amount awarded by the arbitration panel, as well as attorney’s fees under section 718.29 and enforced the lien. The Owner has appealed the denial of its motion to vacate, the entry of final judgment and the enforcement of CSS’s lien.

The Owner first argues that it was improper for the trial court to confirm the arbitration award in light of the recent Supreme Court ruling in Earth Trades, Inc. v. T & G Carp., 108 So.3d 580 (Fla.2018). Earth Trades does not answer the enforceability issue presented in this case. Rather, Earth Trades addresses the issue of whether a contractor who was in violation of section 489.128 can raise the common law defense of in pari delicto when sued. Id. at 581. Earth Trades does not apply as it does not involve the submission of the issue of enforceability of a contract to an arbitration panel.

The Owner next argues that the arbitrators did not determine the issue of legality of the contract either because “the parties did not agree to submit [CSSj’s lien claim to arbitration,” or because the arbitration award was silent on the Owner’s affirmative defenses, deciding only the “claims” submitted by the parties. We agree with the general magistrate that the issue of enforceability was made a part of the arbitration when the Owner filed its answering statement and raised enforceability as its first affirmative defense, but did not contest the arbitrator’s ability to determine the issue. Additionally, nothing in the record shows that the Owners objected to the arbitrators having jurisdiction to hear the issue at any other time.

After a twelve day hearing, the arbitration panel made an award in favor of CSS. In order to do so, we can only conclude that the panel did, in fact, address the issue of enforceability. Even though the award does not specifically refer to the issue, the award does state what issues the panel did not address (enforceability is not listed) and specifically states that “This Award completes the full settlement of the claims submitted to this Arbitration. All claims not expressly granted herein are hereby DENIED.” Therefore, we conclude that the parties submitted the issue of enforceability of the contract to the arbitrators and that the arbitrators, in order to rule on behalf of CSS, addressed the issue.

The Owner next argues that the trial court erred in confirming the arbitration award because doing so resulted in the enforcement of an illegal contract. We also reject this argument because determination of the legality of the contract was a decision for the arbitrators and the trial court was not permitted to revisit the determination of that issue upon a demand for confirmation of the arbitration award. What is arbitrated by an arbitration panel depends on what the parties to the arbitration agreement agree to arbitrate. The panel gets its jurisdiction and the scope of the matters to be arbitrated from the agreement of the parties. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999) (“The determination of whether an arbitration clause requires arbitration of a particular dispute necessarily ‘rests on the intent of the parties.’”) citing Seaboard Coast Line R.R. v. Trailer Train Co., 690 F.2d 1343, 1348 (11th Cir.1982); Regency Group, Inc. v. McDaniels, 647 So.2d 192, 193 (Fla. 1st DCA 1994) (“The agreement of the parties determines the issues subject to arbitration.”).

As stated above, the issue of enforceability was submitted to the panel and neither party objected. As such, based on the AAA rules, the panel had jurisdiction to determine the issue. To ask the trial court to revisit this issue would require the trial court to step into an appellate position. The Florida Arbitration Statutes do not provide for such. Pursuant to section 682.13, Florida Statutes, the authority of the trial court to vacate an arbitration award is very narrow. That statute provides only eight specific reasons upon which a trial court may vacate an arbitration award. The reason relied upon by the Owner is that the arbitrators exceeded their power by deciding the enforceability issue. The problem with that argument is that the issue was submitted to the panel and, as such, it did not exceed its power. See Verzura Constr., Inc. v. Surfside Ocean, Inc., 708 So.2d 994, 995 (Fla. 3d DCA 1998). That determination of the legality of the contract was for the arbitrators to decide is made clear in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 163 L.Ed.2d 1038 (2006), where patrons of a check cashing business argued that the contract requiring them to arbitrate disputes with the business was illegal and, therefore, the arbitration clauses contained within the contracts were not enforceable. In reversing the Florida Supreme Court’s ruling that “to enforce an agreement to arbitrate in a contract challenged as unlawful ‘could breathe life into a contract that not only violates state law, but also is criminal in nature.’ ”, the Supreme Court stated:

Challenges to the validity of arbitration agreements ‘upon such grounds as exist at law or in equity for the revocation of any contract’ can be divided into two types. One type challenges specifically the validity of the agreement to arbitrate. [citation omitted]. The other challenges the contract as a whole, either on a ground that directly affects the entire agreement (e.g., the agreement was fraudulently induced), or on the ground that the illegality of one of the contract’s provisions renders the whole contract invalid. Respondents’ claim is of this second type. The crux of the complaint is that the contract as a whole (including its arbitration provision) is rendered invalid by the usurious finance charge.
[Ujnless the challenge is to the arbitration clause itself, the issue of the contract’s validity is considered by the arbitrator in the first instance.... [W]e conclude that because respondents challenge the Agreement, but not specifically its arbitration provisions, those provisions are enforceable apart from the remainder of the contract. The challenge should therefore be considered by an arbitrator, not a court.
We reaffirm today that, regardless of whether the challenge is brought in federal or state court, a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.

Id. at 444-449, 126 S.Ct. 1204 (emphasis added). Thus, the Supreme Court has determined that claims such as those made by the Owner here — that the contract at issue is illegal and not enforceable — are to be determined by the arbitrators and not the court.

This rule has been applied by other courts addressing claims identical to those made by the Owner. In Commercial Interiors Corp. of Boca Raton v. Pinkerton & Laws, Inc., 19 So.3d 1062 (Fla. 5th DCA 2009), Pinkerton sought dismissal of an arbitration arguing that its contract with Commercial Interiors was illegal under section 489.128, Florida Statutes. The arbitrator denied the motion to dismiss and entered an award in favor of Commercial Interiors. Pinkerton then moved the trial court to set aside the arbitrator’s award because the contract was illegal — just as the Owner has done in this case. The trial court there granted Pinkerton’s motion, but the Fifth District reversed, holding:

Here, the arbitrator properly considered the illegality of the subject contract in the ‘first instance.’ The issue we must now confront is what standard the trial court should use if asked to review the arbitrator’s ruling on illegality.... We have specifically held that in order to vacate an arbitration award a party must establish one of the five section 682.13 grounds, [citations omitted]. If a party moving to vacate fails to prevail on one of these grounds ‘neither a circuit court nor a district court of appeal has the authority to overturn the award.’ [citation omitted].
It is quite clear that none of these rather narrow grounds apply to the present case.... Based on our reading of the transcript of the circuit court hearing, it appears that the trial court simply disagreed with the arbitrator’s application of the law to the facts of this case. That, however, is not a sufficient basis to set aside the arbitration proceeding.

Id. at 1064. See also, Schnurmacher v. Noriega, 542 So.2d 1327, 1328-29 (Fla.1989) (“[T]he award of arbitrators in statutory arbitration proceedings cannot be set aside for mere errors of judgment either as to the law or as to the facts.... To allow judicial review of the merits of an arbitration award for any reason other than those stated in section 682.13(10) would undermine the purpose of settling disputes through arbitration.”).

Likewise, in Charles Boyd Construction, Inc. v. Vacation Beach, Inc., 959 So.2d 1227 (Fla. 5th DCA 2007), a property owner claimed that its construction contracts were illegal under section 489.128 and filed a declaratory judgment action regarding the legality of the contract. The trial court granted the contractor’s motion to dismiss the declaratory judgment action and the appellate court originally reversed. Following the issuance of Buckeye Check Cashing, supra, the Fifth District revised its opinion and stated: “In particular, we reverse the finding that the contract between [the property owner] and [the construction company] ‘is illegal and the arbitration provision therein is not enforceable.’ That issue must in the first instance be decided by the arbitrator, not the court.” Id. at 1232.

Those cases make clear that a trial or appellate court’s view that an arbitration panel wrongly decided the issue of illegality of a contract, and specifically illegality of a contract under section 489.128, is not a basis to vacate an arbitration award. Consequently, the trial court was correct in affirming the arbitration award despite the Owner’s argument that the contract at issue was illegal.

Finally, the Owner argues that the trial court erred in enforcing CSS’s claim of lien because foreclosure of that lien was not decided by the arbitration panel. We do not agree. As in Royal Palm Collection, Inc. v. Lewis, 36 So.3d 168 (Fla. 4th DCA 2010), CSS “was entitled to the entry of a final judgment of foreclosure as a means of enforcing the arbitrator’s award. See §§ 713.08, 713.21, Fla. Stat. (2009).” See also, McDaniel v. Berhalter, 405 So.2d 1027, 1029 (Fla. 4th DCA 1981) (recognizing that while a party may be required to arbitrate the issue of its entitlement to payment and the amount due, he retains the right to enforce an arbitration award by means of a mechanic’s lien), called into doubt on other grounds, Fewox v. McMerit Constr. Co., 556 So.2d 419 (Fla. 2d DCA 1989); Beach Resorts Int’l, Inc. v. Clarmac Marine Constr. Co., 339 So.2d 689, 692 n. 3 (Fla. 2d DCA 1976) (stating that had the defendant failed to pay full amount of arbitrator’s award, a mechanic’s lien could have been imposed to enforce arbitrator’s award) (citing Mills); Mills v. Robert W. Gottfried, Inc., 272 So.2d 837, 839 (Fla. 4th DCA 1973) (stating that contemporaneous with confirmation of the arbitration award, the trial court “may adjudicate the right of the plaintiff to a mechanic’s lien for the purpose of enforcing such judgment as plaintiff may obtain.”).

Accordingly, we affirm the confirmation of the arbitration award and the enforcement of CSS’s lien.

Affirmed.

      . Shortly after the contract was signed, CSS satisfied all the statutory requirements and became fully licensed. This does not cure the statutory requirement of section 489.128, Florida Statutes (2009), that the contractor must be licensed at the time of contracting and, if not, is in violation of the statute. Earth Trades, Inc. v. T & G Corp., 108 So.3d 580, 585 (Fla.2013).

      . Subsection (3) states: "This section shall not affect the rights of parties other than the unlicensed contractor to enforce contract, lien, or bond remedies. This section shall not affect the obligations of a surety that has provided a bond on behalf of an unlicensed contractor. It shall not be a defense to any claim on a bond or indemnity agreement that the principal or indemnitor is unlicensed for purposes of this section.” Thus, the Owner was permitted to seek to enforce the contract despite its claim that CSS was unlicensed.

      . It is important to note that, like the general magistrate, we do not have the advantage of a transcript of the arbitration proceedings as none was made.

      . We acknowledge that in Jupiter Medical Center, Inc. v. Visiting Nurse Association of Florida, Inc., 72 So.3d 184 (Fla. 4th DCA 2011) the Fourth District stated: "If [a] contract is found to be illegal, a prior arbitration will not prevent the trial court from vacating the award.” Id. at 186. That ruling appears to be inconsistent with the holding in Buckeye Check Cashing, Inc. v. Cardegna, 546 U.S. 440, 126 S.Ct. 1204, 1210, 163 L.Ed.2d 1038 (2006) (“a challenge to the validity of the contract as a whole, and not specifically to the arbitration clause, must go to the arbitrator.”).