author: KAHN, J. BENTON, J., BROWNING, J.,

text:
    Berny SERRANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3338.
    District Court of Appeal of Florida, First District.
    June 17, 2009.
    Rehearing Denied July 28, 2009.

      Nancy A. Daniels, Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

A jury convicted appellant Berny Serrano of first-degree murder, home invasion robbery, and conspiracy to commit home invasion robbery. In this direct appeal of his convictions and sentences, Serrano challenges the denial of three motions to suppress his statements as well as certain rulings regarding testimony at trial. For the reasons that follow, we affirm Serrano’s convictions and sentences in all respects.

I. BACKGROUND

On January 5, 2005, nineteen-year-old Jacob Langworthy was found unconscious in his ransacked home in Levy County, a single gunshot wound to his head. Jacob died the next day. The ensuing police investigation quickly centered on appellant, then a seventeen-year-old high school sophomore. Eventually, a grand jury indicted appellant for Langworthy’s murder as well as home invasion robbery and conspiracy to commit home invasion robbery.

Evidence at appellant’s trial, which spanned four days between April 23 and 27, 2007, established that appellant conspired with four accomplices — fellow high school students Courtney Grant, Kenny Gross, Michael Hill, and Theophilus Lee — • to rob Langworthy after school on January 5, 2005, and to steal a cache of money and drugs they expected to find in his home. Each of the four accomplices testified appellant called Langworthy in advance (to make sure he was home) and showed them a handgun as the five drove to Langwor-thy’s house. Two of appellant’s schoolmates testified appellant told them he planned to rob someone after school on January 5; another student testified appellant quietly showed him the handgun during his first-period art class the day of the shooting.

Grant, Gross, Hill, and Lee all testified they were unarmed as they ransacked the house while appellant held Langworthy at gunpoint and demanded that Langworthy tell them where drugs and money were hidden. According to Hill, when he fled the house behind the other three accomplices, he left appellant standing over Langworthy with a gun and, once outside, heard a sound similar to a “thud” from inside the home. Appellant told both Gross and Grant he shot Langworthy in the head. Each of the four accomplices entered a plea, and each was serving a ten-year prison sentence at the time of appellant’s trial.

Langworthy’s neighbor, Elizabeth Mullins, saw “a young white man” matching appellant’s description run from the home after hearing a sound similar to the report of a gunshot inside. Langworthy’s grandmother, Phyliss Ann McCallum, who interrupted the robbery when she parked her car out front, saw Grant, Gross, and Lee run from the house shortly before hearing a gunshot from inside and then seeing Hill-run out of the house. McCallum ran inside to find Langworthy seriously wounded on the floor and appellant, a gun in his hand, running out of the back door. Appellant’s stepfather, Reinardo Pineiro, testified he owned the type of gun used to shoot Langworthy — a .22 caliber handgun- — and that the gun went missing around the time of Langworthy’s murder.

The jury convicted Serrano of first-degree murder with a firearm, conspiracy to commit home invasion robbery while armed with a firearm, and home invasion robbery with a firearm. The court sentenced him to a mandatory life imprisonment on the first count, and lesser sentences on the remaining ehai*ges.

The first three issues on appeal concern the denial of appellant’s motions to suppress incriminating statements made to police as well as an inculpatory letter he wrote to the trial judge. The remaining issue concerns the judge’s determination that the four accomplices could testify that, to their knowledge, their clothes were free of gunshot residue or blood.

The first suppression issue concerns Serrano’s confession during a one-hour-twenty-five-minute interrogation at police headquarters on January 6, 2005, the day after the shooting. Sgt. Scott Tummond with the Levy County Sheriffs Office began the interrogation by describing the incriminating evidence police had gathered to that point in the investigation. When Tummond finished his summary, he explained appellant’s rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and sought Serrano’s acknowledgement of each of his rights — to remain silent, to talk to a lawyer before questioning and have a lawyer present during questioning, and to stop answering questions at any time. Appellant acknowledged each of those rights and, according to the transcript of the interview, signed a Miranda form.

Tummond then read, aloud a portion of the form dealing with appellant’s decision to waive his Miranda, rights and sought appellant’s acknowledgment of the waiver. Once appellant acknowledged the waiver, another officer, Sgt. Robert Schultz, said:

What we need to do, we need to get your side of it. We’ve got everybody else’s side. We need to get your side to be fair and honest. That’s what we need. That’s why we’re here. This is your opportunity, okay? That’s what we need to do and this is for your benefit and for our benefit.

Appellant said in response, “I agree to tell you my side right now.” Tummond then asked him, “You’re willing to sit down with these two gentlemen and tell them your side?” Appellant replied, “I’ll tell them my side but not answer the questions without my lawyer.”

After obtaining answers to thirteen further biographical questions related to the Miranda form, Schultz told appellant, “Okay. So my understanding is, make it clear, is that you wanted to make a statement. You wanted to tell your side of the story but you’re not willing to answer my questions; is that right?” Appellant did not respond audibly, but Schultz said, “Okay. Tell me whatever you want to tell me.” Appellant proceeded to tell Schultz that the other four suspects asked him to participate with them in a robbery but that he declined and went home after school instead. This account comprises twenty-six lines of transcript.

Schultz then said, “Okay. So again, you don’t want me to ask no questions, right? That’s your official — you don’t want me asking no clarification questions. You just want to make your statement, right?” Appellant then contradicted his previous position, saying, “Well, go ahead, you can ask some questions.”

At that juncture, an assistant state attorney present during the interrogation admonished appellant, “They previously told you you had the right to have an attorney here before you’re asked any questions. Earlier you said you did want one before any questions were asked. But then you said you would give a statement. Now, you’re saying that you will answer his clarification questions?” Appellant said, “Depending on the question,” and Schultz said, “Fair enough.” The prosecutor told him again, “Like they told you before, you have the right to stop at any time. Do you understand that?” Appellant said he understood, and Schultz pressed forward with substantive questions that appellant answered. At length, Serrano fully confessed to shooting Lang-worthy.

The second motion sought suppression of incriminating statements appellant made to an officer at the county jail on January 18, 2005, twelve days after his arrest. The record indicates that, during a meeting convened with Capt. Chuck Bas-tak at appellant’s request, appellant offered to tell Bastak the location of the murder weapon in exchange for a promise that jail officers would arrange a contact visit with his mother and a haircut. No lawyer was present during Bastak’s taped conversation with Serrano, although Bas-tak and another officer advised appellant of his right to counsel several times before appellant said anything regarding the gun, as the transcript indicates. At length, after acknowledging several of Bastak’s and another officer’s admonitions of his right to counsel, appellant proceeded to tell Bas-tak where to find the gun, although, incidentally, the record reflects that the police did not find the gun there.

A third suppression motion concerned a letter appellant wrote to the trial judge, in which he confessed his participation in the robbery but claimed the gun discharged accidentally and that he did not intend to kill Langworthy. The letter suggested Serrano’s religious beliefs impelled him to confess his involvement in the episode, even if he did not intentionally pull the trigger. In the letter, Serrano asked the trial judge to “maybe send ... home” his accomplices and to “get [him] into a courtroom whenever possible.”

The trial court denied all three suppression motions after a hearing. At trial, the State played audio recordings of appellant’s interrogation and his conversation with Bastak and introduced into evidence Serrano’s letter to the judge. For the reasons that follow, we conclude that the court properly denied each suppression motion. We furthermore find no abuse of discretion in the trial court’s decision to permit the accomplices to testify regarding the absence of visible blood or gunshot residue on their clothing.

II. ANALYSIS

A. Motions to Suppress

Appellant first argues the trial court erred in denying his motions to suppress evidence of the January 6, 2005, confession, evidence of the January 18, 2005, conversation with Bastak regarding the murder weapon, and the letter he wrote to the trial judge. Contrary to appellant’s position, we find no error in admission of this evidence. We will address each motion to suppress in turn.

Appellant first sought suppression of his confession to detectives the day after the shooting. A suspect undergoing custodial interrogation, faced with questions designed to elicit incriminating testimonial responses, has the right to confer with counsel beforehand and may elect to have counsel present during questioning. Miranda, 384 U.S. at 436, 86 S.Ct. 1602. A suspect may waive his or her Miranda rights but, during subsequent questioning, may think better of the waiver and decide to consult with an attorney. In Davis v. United States, the U.S. Supreme Court held that a suspect who wishes to invoke previously waived Miranda rights and to confer with an attorney “must unambiguously request counsel” in order for police officers to cease an interrogation already in progress. 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994). The Court held that only a clear, unequivocal, and unambiguous request for counsel will suffice: “If the suspect’s statement [regarding the need for a lawyer] is not an unambiguous or unequivocal request for counsel, the officers have no obligation to stop questioning him.” Id. at 462, 114 S.Ct. 2350.

After Davis, the Florida Supreme Court, writing in State v. Owen, explained that

[a] suspect must articulate his desire to cut off questioning with sufficient clarity that a reasonable police officer in the circumstances would understand the statement to be an assertion of the right to remain silent. If the statement is ambiguous or equivocal, then the police have no duty to clarify the suspect’s intent, and they may proceed with the interrogation....

Owen, 696 So.2d 715, 718 (Fla.1997) (quoting Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir.1994)). Owen applies only where the suspect undergoes questioning after validly waiving the right to counsel pursuant to a proper Miranda warning at the outset of interrogation. Id. at 719; see Almeida v. State, 737 So.2d 520, 523 n. 7 (Fla.1999) (recognizing that Owen rule “applies only where the suspect has waived the right earlier during the session”); accord Davis, 512 U.S. at 461, 114 S.Ct. 2350 (holding that “after a knowing and voluntary waiver of the Miranda rights, law enforcement officers may continue questioning until and unless the suspect clearly requests an attorney”).

Subsequent cases hinge on whether a suspect has made an equivocal or unequivocal assertion of the right to counsel. See, e.g., Walker v. State, 957 So.2d 560, 571 (Fla.2007) (concluding that suspect’s statement, “I think I may need a lawyer,” and subsequent question asking detectives whether he needed counsel, were not unequivocal requests for attorney and did not require cessation of interrogation); Jones v. State, 748 So.2d 1012, 1019-20 (Fla.1999) (concluding that suspect who confessed after telling jail guards he wanted “to talk to his mother, his attorney, and [a detective]” did not unequivocally invoke right to counsel).

Owen prohibits further interrogation after an unequivocal assertion of the right to counsel. 696 So.2d at 718-19. Nothing in the case law, however, necessarily prevents police officers from asking harmless questions to clarify a suspect’s assertion of the right to counsel, even if a reviewing court determines, in hindsight, that the suspect unequivocally requested an attorney. Miranda applies, for Fifth Amendment purposes, only to questions designed to elicit incriminating testimonial responses: questions “the police should know [are] reasonably likely to evoke an incriminating response from a suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); see Edwards v. Arizona, 451 U.S. 477, 485-86, 101 S.Ct. 1880, 68 L.Ed.2d 378 (1981) (“The Fifth Amendment right identified in Miranda is the right to have counsel present at any custodial interrogation.”).

Because a suspect’s yes-or-no response to a question seeking verification of even an unequivocal clear invocation of the right to counsel could hardly be characterized as incriminating or testimonial, an officer’s question to confirm the suspect’s wishes, without more, does not violate clearly established law. See Owen, 696 So.2d at 718 (describing effect of unequivocal assertion of right to counsel upon propriety of further “interrogation”); Traylor v. State, 596 So.2d 957, 966 (Fla.1992) (noting that, “if the suspect indicates in any manner that he or she does not want to be interrogated, interrogation must not begin or, if it has already begun, must immediately stop” (emphasis added)). This approach squares with the rule in Edwards “that when an accused has invoked his right to have counsel present during custodial interrogation, a valid waiver of that right cannot be established by showing only that he responded to further police-initiated custodial interrogation even if he has been advised of his right.” 451 U.S. at 484, 101 S.Ct. 1880 (emphasis added). Because a question clarifying the suspect’s wishes does not amount to interrogation, under the view of interrogation taken in Innis and subsequent cases, nothing in the case law prohibits such a question. A clarifying question must, of course, remain narrowly focused on verifying the request for counsel; officers may not “engage[ ] in conduct they could reasonably anticipate would elicit an incriminating response.” Cuervo v. State, 967 So.2d 155, 164 (Fla.2000) (holding confession inadmissible where defendant said, through Spanish interpreter during interrogation, he would “declare nothing,” but where officers subsequently asked series of questions “explaining” that defendant had opportunity to talk if he wanted, among other things).

Here, appellant acknowledged his rights and waived them. The trial court found equivocation in appellant’s subsequent assertion of his right to counsel because he initially said, “I agree to tell you my side right now,” then said, “I’ll tell [you] my side but not answer the questions without my lawyer,” and finally said, “Well, go ahead, you can ask some questions.” Although the trial court reached an ultimately correct conclusion in denying the motion to suppress, the language of the order does not strictly follow the case law, as the appropriate legal analysis focuses on the particular statement invoking the right to counsel and whether that statement, in and of itself, is ambiguous or equivocal. See Owen, 696 So.2d at 718 (“A suspect must articulate his desire to cut off questioning with sufficient clarity.... If the statement is ambiguous or equivocal, then the police ... may proceed with the interrogation.” (quoting Coleman, 30 F.3d at 1424) (emphasis added)). We find no ambiguity in appellant’s original position: he would make a statement but not answer questions without a lawyer. People make unequivocal statements all the time but subsequently change their minds; the mere fact that appellant eventually agreed to answer questions does not render his original position equivocal.

Nonetheless, we conclude that appellant’s Miranda rights were not violated and that his eventual confession was admissible. After appellant made an exculpatory statement, Detective Schultz said, “So again, you don’t want me to ask no questions, right? That’s your official — you don’t want me asking no clarification questions. You just want to make your statement, right?” Until that point, appellant’s desire not to answer questions without a lawyer had been clear and unambiguous. Had the interrogation proceeded, appellant’s testimonial responses would have been inadmissible. See Owen, 696 So.2d at 718-19. Schultz’s question, however, did not fall under the ambit of Miranda,; he merely asked appellant to confirm he would not undergo interrogation, and appellant’s response — “Well, go ahead, you can ask some questions” — was non-testimonial. We find nothing in the case law to prohibit such a question under these circumstances, nor does the record suggest that Schultz’s follow-up question “badgered” appellant into confessing, as appellant argues.

Rather, far short of bespeaking any sinister intention on the detective’s part, the record reflects that Schultz merely attempted to conclude the encounter by confirming what appellant wanted to do. The outcome might be different had Schultz, instead of confirming Serrano’s wishes, advised him to submit to interrogation or asked him to reconsider his position. On this record, though, we find no evidence that Schultz’s question, whether or not hindsight might characterize it as superfluous, was improper. We note that an assistant state attorney in the room immediately interjected with an admonition to appellant that he had the right not to answer questions and could have a lawyer present; appellant acknowledged those rights but persisted. The context belies any suggestion appellant felt badgered or beleaguered. Had such an atmosphere prevailed, appellant would hardly have so readily agreed to proceed with an interrogation, once given the opportunity to rethink his strategy. The trial court properly determined that appellant’s confession was admissible.

As to appellant’s recorded conversation with Bastak, the detective whom he told where to find the murder weapon (essentially admitting his involvement in the murder), we likewise find no en*or. The record indicates that appellant wanted to hug his mother and have a haircut in jail and requested a meeting with Bastak to exchange information about the murder for these accommodations. Appellant has not, however, demonstrated that his statement was inadmissible as the product of coercion. The law recognizes that one may ultimately confess to a crime because of an insurmountable internal conflict that impels one inexorably toward confessing. That alone, however, absent a showing of affirmative coercion by the police, does not require suppression. See generally Colorado v. Connelly, 479 U.S. 157, 170-71, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986) (holding that “Miranda protects defendants against government coercion leading them to surrender rights protected by the Fifth Amendment; it goes no further than that. Respondent’s perception of coercion flowing from the ‘voice of God,’ however important or significant such a perception may be in other disciplines, is a matter to which the United States Constitution does not speak”). Furthermore, even one who has previously invoked his Miranda rights may waive them by “initiatfingj further communication, exchanges, or conversations with the police.” Edwards, 451 U.S. at 484-85, 101 S.Ct. 1880.

Appellant’s conversation with Bastak is not analogous in any determinative respect to the custodial interrogation in Ramirez v. State, a case upon which appellant substantially relies. 739 So.2d 568 (Fla.1999). In Ramirez, the seventeen-year-old defendant’s “Miranda warnings were not given until [the defendant] had made significant admissions of guilt. Then, immediately before administering the Miranda warnings, one of the detectives minimized their significance by suggesting in a casual, offhand manner that he did not expect Ramirez to invoke his rights” and assured him he was not under arrest. Id. at 576. The record in this case does not reflect that Bastak or the other officer present did or said anything remotely analogous to the' egregious conduct of the officers in Ramirez. To the contrary, Bastak and another officer scrupulously admonished appellant several times of his right to have counsel present. The meeting was convened at appellant’s unilateral request, for the express purpose of offering information about the murder in exchange for certain accommodations. The trial court properly determined appellant’s inculpato-ry statements during this meeting were admissible. See Edwards, 451 U.S. at 485-86, 101 S.Ct. 1880 (“Had Edwards initiated the meeting on January 20, nothing in the Fifth and Fourteenth Amendments would prohibit the police from merely listening to his voluntary, volunteered statements and using them against him at the trial.”); Traylor, 596 So.2d at 966 (noting that suspect “is free to volunteer a statement to police on his or her own initiative at any time on any subject in the absence of counsel”).

We likewise find no error in the trial court’s refusal to keep from the jury appellant’s letter to the trial judge. Appellant argues on appeal that the letter was inadmissible because it represented an attempt to negotiate a plea. See § 90.410, Fla. Stat. (2006) (providing that evidence of offers to plead guilty or statements related to such offers is inadmissible). Upon review of the letter, we find no support for this construction. On the face of the letter and in the context of the record, we cannot conclude that the letter reflects an attempt to plea-bargain or that it was written under circumstances suggesting plea negotiations had begun or would begin, as the law would require for suppression. See Stevens v. State, 419 So.2d 1058, 1062 (Fla.1982). Rather, the letter contains admissible, “[unsolicited, unilateral utterances.” Id. 419 So.2d at 1062.

We have found no error in any of the rulings discussed above. Were we to find error, however, it would have been harmless. The record reflects no reasonable possibility that, considered alone or together, the January 6 confession, the conversation about the gun, or the letter contributed to the jury’s verdict, in light of the substantial quantum of admissible incriminating testimony the jury heard at trial. See State v. DiGuilio, 491 So.2d 1129, 1138 (Fla.1986) (holding that, to show error was harmless, State must show “there is no reasonable possibility that the error contributed to the conviction”). Apart from the evidence at issue in the motions to suppress, Hill testified that, as the other accomplices fled Langworthy’s home, he left appellant in the house, holding a gun to Langworthy’s head, and heard a loud noise from inside the home as he ran away; Gross and Grant both testified that appellant admitted to them he shot Langworthy in the head as the group fled the scene; eyewitnesses testified that an armed young man matching appellant’s description fled the house shortly after a gunshot crackled through the neighborhood; and appellant’s stepfather testified he owned, and was missing, the type of handgun used to shoot Langworthy. The substantial evidence of guilt leads to the conclusion that appellant would have been convicted without the benefit of the evidence for which he sought suppression.

B. Evidentiary Rulings Regarding Accomplices ’ Testimony

At trial, the prosecutor asked each of appellant’s accomplices whether, “to [his] knowledge,” there was blood or gunshot residue on the clothes he wore during the robbery. In each instance, trial counsel objected and argued the question called for an expert forensics opinion that each witness—a former high school student without formal postsecondary education— was unqualified to render. We find no error in the trial court’s decision to permit the testimony at issue.

The evidence code precludes testimony by a lay witness relating inferences or opinions that “require a special knowledge, skill, experience, or training.” § 90.701(2), Fla. Stat. (2006). “Lay witness opinion testimony is admissible if it is within the ken of an intelligent person with a degree of experience.” Floyd v. State, 569 So.2d 1225, 1232 (Fla.1990). Any witness, however, may testify as to matters within the witness’s personal knowledge, including personal observations. See § 90.604, Fla. Stat. (2006).

Although the questions at issue, if taken further, might well have entered the province of expert opinion testimony, we cannot conclude the trial court committed an abuse of discretion in permitting the lay witnesses to testify regarding their bare observations. Indeed, one would be hard-pressed to conclude the questions called for opinion testimony at all; the questions merely sought the witnesses’ observations, and the qualifier, “to your knowledge,” removed the inquiries from the realm of opinion testimony. See id. Even if the questions called for opinion testimony, however, the qualifier rooted their subject matter “within the ken of an intelligent person with a degree of experience.” Floyd, 569 So.2d at 1232. We find no error in the questions as narrowly phrased under the particular circumstances presented here.

AFFIRMED.

BENTON, J., concurs in result with opinion and BROWNING, J., dissents with opinion.

BENTON, J.,

concurring in result.

Any conceivable error in the admission of any of the statements the defendant gave was harmless beyond a reasonable doubt. As regards the assertedly expert opinion testimony, I agree with the analysis in the majority opinion.

BROWNING, J.,

dissenting.

In Ramirez, 739 So.2d at 568, the Florida Supreme Court held that whether a juvenile’s confession is voluntary after a waiver of Miranda rights is controlled by a “totality of the circumstances” test. Because I believe the totality of the circumstances precludes admission of Appellant’s statements of January 6, 2005, January 18, 2005, and June 16.2005, I must dissent.

Ramirez

In Ramirez the court addressed a juvenile’s waiver of Miranda rights as follows:

The “totality of the circumstances” to be considered in determining whether a waiver of Miranda warnings is valid based on the two-pronged approach of Moran [v. Burbine, 475 U.S. 412, 106 S.Ct. 1135, 89 L.Ed.2d 410 (1986) ] may include factors that are also considered in determining whether the confession itself is voluntary. See Sliney [v. State], 699 So.2d [662] at 669 [ (Fla.1997) ]; see also State v. Sawyer, 561 So.2d 278, 284-85 (Fla. 2nd DCA 1990). The factors that we consider relevant here include: (1) the manner in which the Miranda rights were administered, including any cajoling or trickery; see Miranda, 384 U.S. at 476, 86 S.Ct. 1602; Brewer v. State, 386 So.2d 232, 237 (Fla.1980); (2) the suspect’s age, experience, background and intelligence, see State v. S.L.W., 465 So.2d 1231, 1232 (Fla.1985) (quoting Fare [v. Michael C.], 442 U.S. [707] at 724-25, 99 S.Ct. 2560, 61 L.Ed.2d 197 [ (1979) ]); Doerr v. State, 383 So.2d 905, 907 (Fla.1980); (3) the fact that the suspect’s parents were not contacted and the juvenile was not given an opportunity to consult with his parents before questioning, see Doerr, 383 So.2d at 907; (4) the fact that the questioning took place in the station house, see Drake [v. State], 441 So.2d [1079] at 1081 [ (Fla.1983) ]; and (5) the fact that the interrogators did not secure a written waiver of the Miranda rights at the outset, see Sliney, 699 So.2d at 669 n. 10; Traylor, 596 So.2d at 966.

Ramirez, 739 So.2d at 575.

January 6, 2005 Statement

First, and of overarching importance, the state blatantly failed to comply with section 985.207(2), Florida Statutes (2005). The record reveals no attempt by the Sheriffs Department to contact Appellant’s parents when he was taken into custody, or at anytime thereafter. In Ramirez, when addressing a similar, but less egregious, failure, the court pointed out “the statute [39.037(2) ] would be rendered meaningless if all that is required are perfunctory attempts to contact a juvenile’s parents” and “the State ... must bear the burden of demonstrating statutory compliance.” Ramirez, 739 So.2d at 578. Alarmingly, the Sheriffs Department did not attempt any contact with Appellant’s parents, in contrast to a telephone message left on the defendant’s parents’ answering machine in Ramirez. In fact, during Appellant’s long incarceration before trial (six months), the record is silent as to whether Appellant’s parents were ever contacted by the authorities. Under Ramirez it is the State’s burden to prove record compliance with section 985.207(2), and it utterly failed to do so, or even attempt to do so, for that matter. In my view, this factor alone compels reversal, but even assuming arguendo that it does not, I find other circumstances that augment that failure and, under the “totality of the circumstances” test certainly compel reversal of Appellant’s conviction.

That next deficiency occurred when Appellant unequivocally asserted his right to counsel by stating he would “not answer questions without my lawyer.” At that point in time, the deputies should have ceased questioning Appellant until a lawyer was appointed. Spradley v. State, 442 So.2d 1039, 1042 (Fla. 2nd DCA 1983). Nor can the State plausibly maintain, as determined by the majority opinion, that Appellant’s election of counsel was not unequivocal, because Sgt. Tummond made the following record statement to Appellant:

I’m not asking nothing [sic] about your case or what the charges — you already said you don’t want nobody to say nothing.
You have the right to have an attorney here before you’re asked any questions. Earlier you said you did leant one before any questions ivere asked.

(underlining added). This exchange vividly reveals what Sgt. Tummond knew before Appellant made his statement adverse to his interest. Accordingly, Sgt. Tum-mond and the other deputies present should have stopped and provided Appellant with counsel right then and there. For this failure, Appellant’s statements should be inadmissible.

Statement of January 18, 2005

Appellant’s statement of January 18, 2005, is inadmissible, just like his January 6, 2005, statement, and the trial judge should have excluded it. This statement was given after Appellant asked for a .meeting and offered to tell the State the location of the murder weapon in exchange for a visit with his mother and a haircut. Before consummating this exchange, Capt. Bastak asked Appellant if he had an attorney. When Appellant told him the attorney who had contacted him (presumably a public defender) would not be representing him, Bastak told him “you technically have an attorney” and proceeded to take Appellant’s statement. How a defendant “technically has an attorney” is a mystery to me. It is apparent from the record that the public defender’s office had a conflict and never intended to represent Appellant. The public defender’s office was at that very time representing co-defendants, who as early as January 5, 2005, had “fingered Appellant” as the shooter and were busy seeking to mitigate their sentences’ severity by giving adverse testimony against Appellant. However, despite this obvious conflict, a “conflict attorney” was not appointed for Appellant until May 19, 2005, a useless gesture by that time because Appellant’s statements already had been given.

Statement of June 6, 2005

Finally, I would suppress Appellant’s June 6, 2005, letter to the trial judge. The letter represented a pro se filing when Appellant was represented, finally, by conflict-free counsel. The letter should have been rejected and returned, as a pro se filing is not acceptable when a defendant is represented by counsel. See Logan v. State, 846 So.2d 472, 479 (Fla.2003); Mourra v. State, 884 So.2d 316, 320-21 (Fla. 2nd DCA 2004).

General Consideration

A new trial, in this circumstance because of Appellant’s alleged heinous acts, is sure to raise a “hue and cry” that a known criminal is being released on a technicality. However, a recent Duval County case that drew the attention of this Court, and the public, reveals the reasons for a strict application of Ramirez to a juvenile’s confession after a waiver of Miranda, rights, and the mischief that can flow from a failure to do so. See Curtis v. State, 876 So.2d 13 (Fla. 1st DCA 2004). Before Curtis was charged, a fifteen-year-old juvenile, Brenton Butler, was charged with killing the same woman during an armed robbery. Butler was identified as the killer by the deceased woman’s husband, an eyewitness. Butler was induced to waive his Miranda. rights after the police violated section 39.037(2), Florida Statutes, by failing to call Butler’s parents, as here; and Butler later confessed to the murder. At trial, Butler’s confession was deemed voluntary over objection, admitted as evidence, and presented to a jury that had the good judgment to acquit him. In all probability, a guilty verdict would have resulted in the destruction of Butler’s meaningful life. However, to the credit of the jury, and not of the judiciary, a great injustice was avoided, as revealed by subsequent events. After Butler’s acquittal, the real perpetrator of the murder was identified, tried, and found guilty of the murder on irrefutable hard forensic evidence. See Curtis.

This occurrence is a prime example of why Ramirez should be strictly applied without hesitation here. One cannot know whether Appellant is innocent, as was Butler; however, I can assert that due process, the right to counsel, calling a juvenile’s parents as required, and giving Miranda warnings should be strictly required for the reasons exhibited by the misdeeds surrounding the Butler prosecution, and these requirements were violated here. Our system is designed to free the innocent and not secure convictions by recognized unreliable procedures, as were applied here.

In my view, although I think Ramirez requires reversal, a minor’s confession should be considered involuntary and inadmissible as a matter of law unless a parent, guardian, or counsel is present and consents to a waiver of his or her Miranda rights. Florida law, on the one hand, will not allow a juvenile to contract for goods and services, but will allow the same juvenile to “contract” away his Miranda rights, a far more serious consequence in most circumstances. See Chap. 743, Fla. Stat.; Gautier v. Bradway, 87 Fla. 193, 99 So. 879 (1924). Surely, if Miranda rights mean anything, a juvenile should not be allowed to waive them absent the consent of a parent, attorney, or legal guardian. A minor’s natural immaturity is recognized when contracting for goods and services, and it is common knowledge that a judgmental imbalance exists when a minor is dealing with an adult, and especially with a police officer. Surely, due process rights are just as important as the right to contract. That imbalance should be recognized and respected when Miranda rights are waived, just as in the case of a contract. In my view, one day this will be the law, because allowing a juvenile to confess to a crime after individually waiving his or her Miranda warnings is inconsistent with what we all know to be the status of human behavior and the fair administration of justice and due process.

For these reasons, I would grant Appellant a new trial and mandate exclusion from evidence Appellant’s statements of January 6, 2005; January 18, 2005; and his letter of June 6, 2005. Thus, I dissent from this Court’s failure to do so.

       With all respect to the dissenting opinion, the arguments raised in that opinion concerning notification of the parents, and the letter appellant wrote to the trial judge being a "pro se filing," were made neither to the trial court in the motions to suppress, nor are they raised on appeal before this court. Moreover, and with regard to the two statements made by Serrano to law enforcement, the record before us does not establish the proposition that Serrano’s parents were not contacted (even assuming the argument had been made below). With regard to the statements made by Serrano to law enforcement, as well as to the letter authored by Serrano and sent to the trial court, this opinion addresses the issues raised in Serrano's brief.

      . Formerly section 39.037(2), Florida Statutes. See 1997 Fla. Laws, c. 97-238, § 15.


source: Caselaw Access Project

author: VAN NORTWICK, J.

license: Public Domain

text:
    ABBOTT LABORATORIES, Appellant, v. MYLAN PHARMACEUTICALS, INC., Appellee.
    No. 1D08-0602.
    District Court of Appeal of Florida, First District.
    June 22, 2009.

      Michael J. Glazer and John R. Beranek of Ausley & McMullen, Tallahassee, for Appellant.
    William E. Williams and Amy W. Schrader of GrayRobinson, P.A., Tallahassee, for Appellee.
   VAN NORTWICK, J.

Abbott Laboratories (Abbott), the manufacturer of a levothyroxine sodium (LS) drug product, Synthroid®, appeals a summary final order of an administrative law judge (ALJ) in a rule challenge proceeding brought by Mylan Pharmaceuticals, Inc. (Mylan), appellee, the manufacturer of a competing generic drug. In the summary final order, the ALJ ruled that Florida Administrative Code Rule 64B16-27.500(6), which was part of the negative drug formulary (NDF) rule established pursuant to section 465.025(6), Florida Statutes (2007), and which listed LS on the NDF, was invalid on the grounds that it constituted an invalid exercise of legislative delegated authority because it conflicted with the provisions of section 465.0251(1), Florida Statutes (2007). Section 465.0251(1) removes a generic drug from the NDF if the generic drug is “A” rated as therapeutically equivalent to a reference listed drug as referred to in the “Orange Book” published by the United States Food and Drug Administration (FDA). The ALJ’s order, in effect, removes LS from the NDF and permits Florida pharmacists to substitute Mylan’s generic LS product for a prescription for Synthroid® or any other “A” rated LS drug product, except as provided in section 465.025(2), Florida Statutes (2007). Because the ALJ erred in interpreting section 465.0251(1) to apply to editions of the Orange Book subsequent to the date of the 2001 enactment of the statute, we reverse and remand. Finally, we reject the contention of Mylan that Abbott lacks standing to bring this appeal and that the mootness doctrine should apply to this appeal.

Regulatory Background

As is undisputed from this record, approval by the FDA is required before a prescription drug product may be marketed, distributed, or sold in the United States. 21 U.S.C. § 355(a) (2006). When a product contains a new active ingredient or otherwise differs significantly from previously approved products, the sponsor must provide the FDA with data demonstrating the product’s safety and effectiveness for the intended use. See 21 U.S.C. § 355(b) (2006). When a product is a copy of a previously approved product — what is commonly called a “generic” version of the original drug — proof of safety and effectiveness is not required. Instead, the FDA requires a showing that, with regard to certain characteristics, the proposed generic product is essentially the same as the approved product it purports to copy, which is referred to as the “listed drug.” See 21 U.S.C. § 355(j) (2006) (because of the language in section 465.0251(1), we will refer to a “reference listed drug”). The FDA’s previous finding that the reference listed drug is safe and effective is then imputed to the generic product.

Levothyroxine sodium (LS) is a leading treatment for hypothyroidism, -which is the failure of the thyroid gland to produce sufficient thyroid hormone. In 1979, the Florida Legislature directed the Board of Medicine and the Board of Pharmacy to establish by rule a list of those drugs that “demonstrate clinically significant biological or therapeutic inequivalence and which, if substituted, would pose a threat to the health and safety of patients receiving prescription medicine.” § 465.025(6), Fla. Stat. (1979). The rule establishing the NDF is Florida Administrative Code Rule 64B16-27.500. LS has been listed on the NDF since 1984. The NDF rule, prior to the action taken by the ALJ, provided, in pertinent part, as follows:

The negative drug formulary is composed of medicinal drugs which have been specifically determined by the Board of Pharmacy and the Board of Medicine to demonstrate clinically significant biological or therapeutic inequi-valence and which, if substituted, could produce adverse clinical effects, or could otherwise pose a threat to the health and safety of patients receiving such prescription medications.... The generic name of a drug shall be applicable to and include all brand-name equivalents of such drug for which a prescriber may write a prescription. Substitution by a dispensing pharmacist on a prescription written for any brand name equivalent of a generic named drug product listed on the negative formulary or for a drug within the class of certain dosage forms as listed, is strictly prohibited. In cases where the prescription is written for a drug listed on the negative drug formu-lary but a brand name equivalent is not specified by the prescriber, the drug dispensed must be one obtained from a manufacturer or distributor holding an approved new drug application or abbreviated new drug application issued by the Food and Drug Administration, United States Department of Health and Welfare permitting that manufacturer or distributor to market those medicinal drugs or when the former is non-appliea-ble, those manufacturers or distributors supplying such medicinal drugs must show compliance with other applicable Federal Food and Drug Administration marketing requirements. The following are included on the negative drug for-mulary:
(6) Levothyroxine Sodium.

Fla. Admin. Code R. 64B16-27.500(6).

“Until the mid-1970s, nearly all states required pharmacists to dispense the exact drug specified by the prescribing physician, even if equivalent generic products were available.” Jessie Cheng, An Antitrust Analysis of Product Hopping in the Pharmaceutical Industry, 108 Colum. L. Rev. 1471, 1479 (2008). Currently, with the advent of strict federal drug laws, most states more freely allow substitution in order to contain the high cost of drugs. Id. Thus, in Florida, when a patient receives a prescription for a brand name drug and takes it to a Florida pharmacy, the pharmacist is required by law to substitute a less expensive generic drug unless: (1) the patient requests otherwise; (2) the doctor directs otherwise; or (3) the drug is listed on Florida’s NDF. § 465.025(2), Fla. Stat. Because LS was listed on the NDF, prior to the invalidation of rule 64B16-27.500(6), when a doctor prescribed a specific LS drug product, the patient would only receive that product, whether it was a brand name or a generic. § 465.025(6)(b), Fla. Stat. As a result of the order under review, except as provided in section 465.025(2), Florida pharmacists may substitute Mylan’s generic LS product for a prescription for Synthroid® or any of the other brand name or generic LS products.

The ALJ’s decision invalidating rule 64B-27.500(6) rests on the interpretation and application of section 465.0251, enacted in 2001, and section 465.025 first enacted in 1979. Section 465.025, Florida Statutes (2007), entitled “Substitution of Drugs” provides, in pertinent part, as follows:

(1) As used in this section:
(a) “Brand name” means the registered trademark name given to a drug product by its manufacturer, labeler, or distributor.
(b) “Generically equivalent drug product” means a drug product with the same active ingredient, finished dosage form, and strength.
(c) “Prescriber” means any practitioner licensed to prescribe medicinal drugs.
(2) A pharmacist who receives a prescription for a brand name drug shall, unless requested otherwise by the purchaser, substitute a less expensive, generically equivalent drug product that is:
(b) Listed in the formulary of generic and brand name drug products as provided in subsection (5) for the brand name drug prescribed, unless the pres-criber writes the words “MEDICALLY NECESSARY,” in her or his own handwriting, on the face of a written prescription; unless, in the case of an oral prescription, the prescriber expressly indicates to the pharmacist that the brand name drug prescribed is medically necessary; or unless, in the case of a prescription that is electronically generated and transmitted, the prescriber makes an overt act when transmitting the prescription to indicate that the brand name drug prescribed is medically necessary. When done in conjunction with the electronic transmission of the prescription, the prescriber’s overt act indicates to the pharmacist that the brand name drug prescribed is medically necessary.
(3)(a) Any pharmacist who substitutes any drug as provided in subsection (2) shall notify the person presenting the prescription of such substitution, together with the existence and amount of the retail price difference between the brand name drug and the drug substituted for it, and shall inform the person presenting the prescription that such person may refuse the substitution as provided in subsection (2).
(5) Each community pharmacy shall establish a formulary of generic and brand name drug products which, if selected as the drug product of choice, would not pose a threat to the health and safety of patients receiving prescription medication. In compiling the list of generic and brand name drug products for inclusion in the formulary, the pharmacist shall rely on drug product research, testing, information, and formularies compiled by other pharmacies, by states, by the United States Department of Health, Education, and Welfare, by the United States Department of Health and Human Services, or by any other source which the pharmacist deems reliable. Each community pharmacy shall make such formulary available to the public, the Board of Pharmacy, or any physician requesting same. This formulary shall be revised following each addition, deletion, or modification of said formulary.
(6) The Board of Pharmacy and the Board of Medicine shall establish by rule a formulary of generic drug type and brand name drug products which are determined by the boards to demonstrate clinically significant biological or therapeutic inequivalence and which, if substituted, would pose a threat to the health and safety of patients receiving prescription medication.
(a) The formulary may be added to or deleted from as the Board of Pharmacy and the Board of Medicine deem appropriate. Any person who requests any inclusion, addition, or deletion of a generic drug type or brand name drug product to the formulary shall have the burden of proof to show cause why such inclusion, addition, or deletion should be made.
(b) Upon adoption of the formulary required by this subsection, and upon each addition, deletion, or modification to the formulary, the Board of Pharmacy shall mail a copy to each manager of the prescription department of each community pharmacy licensed by the state, each nonresident pharmacy registered in the state, and each board regulating practitioners licensed by the laws of the state to prescribe drugs shall incorporate such formulary into its rules. No pharmacist shall substitute a generically equivalent drug product for a prescribed brand name drug product if the brand name drug product or the generic drug type drug product is included in the said formulary.

Reading section 465.025(6) in its entirety, a party seeking to remove a drug product from the NDF has the burden of proof to show that the removal would not “pose a threat to the health and safety of patients receiving prescription medication.”

Section 465.0251, Florida Statutes (2007), permits removal from the NDF under specific circumstances and states:

465.0251 Generic drugs; removal from formulary under specified circumstances.—
(1) The Board of Pharmacy and the Board of Medicine shall remove any generic named drug product from the for-mulary established by s. 465.025(6), if every commercially marketed equivalent of that drug product is “A” rated as therapeutically equivalent to a reference listed drug or is a reference listed drug as referred to in “Approved Drug Products with Therapeutic Equivalence Evaluations” (Orange Book) published by the United States Food and Drag Administration.
(2) Nothing in this act shall alter or amend s. 465.025 as to existing law providing for the authority of physicians to prohibit generic drug substitution by writing “medically necessary” on the prescription.

Although subsection (1) of section 465.0251 requires removal of a drug product from the NDF without an express finding that the removal will not pose a threat to the health and safety to patients as required by section 465.025, subsection (2) emphasizes that section 465.0251 does not “alter • or amend s. 465.025.”

Section 120.56 Proceeding

This proceeding began on August 17, 2007, when Mylan filed a petition seeking to have rule 64B16-27.500(6) declared invalid. The respondents were the Board of Medicine and Board of Pharmacy since each agency must authorize changes to the rule. Abbott was allowed to intervene. Subsection 120.56(l)(a), Florida Statutes (2007), provides that “[a]ny person substantially affected by a rule ... may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” Subsection 120.52(8), Florida Statutes (2007), defines “invalid exercise of delegated legislative authority,” in pertinent part, as follows:

“Invalid exercise of delegated legislative authority” means action which goes beyond the powers, functions, and duties delegated by the Legislature. A proposed or existing rule is an invalid exercise of delegated legislative authority if any one of the following applies:
(c) The rule enlarges, modifies, or contravenes the specific provisions of law implemented, citation to which is required by s. 120.54(3)(a)l....

Mylan, as the petitioner, had the “burden of proving by a preponderance of the evidence that the existing rule is an invalid exercise of delegated legislative authority as to the objections raised.” § 120.56(3)(a), Fla. Stat. (2007).

Mylan contended that the inclusion of LS on the NDF in rule 64B16-27.500(6) contravenes subsection 465.0251(1), which requires that a drug be removed from the NDF “if every commercially marketed equivalent of that drug product is ‘A’ rated as therapeutically equivalent to a reference listed drug or is a reference listed drug as referred to in” the Orange Book. In response, Abbott argued that it would be unconstitutional to utilize the Orange Book as it exists in 2007 and that the 2001 Orange Book, in effect when -section 465.0251 was enacted, must be used to determine the validity of rule 64B16-27.500(6).

The distinction made by Abbott is significant because the record reflects that the 2001 Orange Book did not include any “A” rated LS products and did not list most of the LS drug products that were being commercially marketed at the time. Only two reference listed LS drugs were included in the 2001 Orange Book, and they were given the therapeutic equivalence code of BX, which communicated the determination of the FDA that the products had not been shown to be therapeutically equivalent to each other. On the other hand, the 2007 Orange Book lists five reference listed LS drug products: Levox-yl®, Levo-T®, Levothroid®, Unithroid®, and Synthroid®. The 2007 Orange Book also lists two generic drugs manufactured by Mylan and Genpharm International, Inc. The 2007 Orange Book also states that all of the listed LS drugs are “A” rated by the FDA, but the FDA has determined that not all of these LS products are therapeutically equivalent to each other.

As previously noted, for a generic product to be approved by the FDA, it must be therapeutically equivalent to a reference listed drug. 21 U.S.C. § 355(j). To be “therapeutically equivalent,” the generic drug must be both pharmaceutically equivalent and bioequivalent. Rebecca S. Yosh-itani, J.D., Ellen S. Cooper, J.D., L.L.M, Pharmaceutical Reformulation: The Growth of Life Cycle Management, 7 Hous. J. Health L. & Pol’y 379, 384 (2007). Products are pharmaceutically equivalent if they contain the same active ingredient and the same strength, and are in the same dosage form (tablet, capsule, solution, etc.). Id., citing Drugs («•■ FDA Glossary of Terms, http://www.fda.gov/cder/ drugsatfda/glossary.htm. Products are bioequivalent if they release the active ingredient into the bloodstream at essentially the same rate and essentially to the same extent. See 21 U.S.C. § 355(j)(8)(B) (2006).

In addition, section 465.025(5) provides that each community pharmacy must establish “a formulary of generic and brand named drug products, which, if selected as the drug of choice, would not pose a threat to the health and safety of patients.... ” Although a pharmacist is required to rely on drug product research, testing, information, and formularies by other agencies, including the FDA, under the statute the pharmacist’s formulary is not required to be consistent with the Orange Book formu-lary. Id. Under section 465.025(2), pharmacists are required to substitute a “less expensive, generically equivalent drug product” for a brand name, unless the preseriber expressly indicates the brand named drug is medically necessary or the purchaser requests otherwise. Section 465.025(l)(b) defines “generically equivalent drug product” as a drug product with the same active ingredient, finished dosage form, and strength. Abbott asserted that, as a result of these statutory provisions, for products not included in the NDF, Florida law would permit substitution of drug products which are pharmaceutically equivalent, but not necessarily bioequiva-lent. As a result, a substituted generic product could differ materially from the prescribed drug in the manner in which the active ingredient is released into the bloodstream. Of course, drug products listed in the NDF may not be substituted. Fla. Admin. Code R. 64B16-27.500.

As noted, pursuant to section 465.025(6), a person seeking to remove a drug from the NDF has the burden of demonstrating that substitution of the drug would not “pose a threat to the health and safety of patients.” The record reflects that previous efforts to remove LS from the NDF utilizing that standard have been unsuccessful. In this proceeding, Mylan has argued that, by operation of law, LS must be removed from the NDF because section 465.0251, Florida Statutes (2007), requires removal as a matter of law. Although Abbott submitted evidence by affidavit in the proceeding below that substituting generic LS drugs could be harmful to patients, that evidence was not considered by the ALJ, because the ALJ determined that section 465.0251(1) required removal as a matter of law.

Below, as here, Abbott argued that the legislature may adopt federal agency rules and laws that are in existence at the time the legislature enacts the statute incorporating federal law, but that the legislature is precluded from adopting federal agency rules or federal laws that take effect after the enactment of the Florida Statute. See Fla. Indus. Comm’n v. State, 155 Fla. 772, 21 So.2d 599 (1945); Freimuth v. State, 272 So.2d 473 (Fla.1972).

Abbott also argued that section 465.0251 was ambiguous and should be construed to require that “A” rated reference listed drugs and generic drugs must be therapeutically equivalent to all the other reference listed drugs. The ALJ rejected this interpretation of the statute, reasoning, as follows:

The plain and obvious meaning of Subsection 465.0251(1), Florida Statutes, is that a generic named drug product is to be removed from the negative drug for-mulary if the generic equivalent is “A” rated as therapeutically equivalent to a reference listed drug as referred to in the Orange Book. The statute does not state that all generic drug products must be “A” rated as therapeutically equivalent to all the reference listed drugs in the Orange Book listed for a specific generic named drug product. It just requires that every commercially marketed generic drug be “A” rated as therapeutically equivalent to a reference listed drug in the Orange Book. [The underlined “a ”] is singular, meaning one.

The parties filed separate motions for summary final order asserting that there were no genuine issues of material fact. See § 120.57(l)(h), Fla. Stat. (2007). Following a hearing on December 11, 2007, the ALJ found that an evidentiary hearing was not necessary and issued a summary final order on January 28, 2008.

In the summary final order, the ALJ accepted Mylan’s argument that the 2007 version of the Orange Book could be used in applying section 465.0251 on the authority of Eastern Air Lines, Inc. v. Department of Revenue, 455 So.2d 311 (Fla.1984). In Eastern Air Lines, the court created an exception to the general rule that a statute may only incorporate federal law in effect at the date the incorporation is made. There, the airline sought a declaratory judgment that a fuel tax calculated by reference to the federal Consumer Price Index (CPI) then in effect was unconstitutional. Eastern contended that the use of the varying price component of the CPI issued by the United States Department of Labor in determining the amount of the fuel tax was an improper delegation of legislative authority because the CPI which was being used was not in existence at the time the provisions of chapter 83-3, Latos of Florida, were enacted. Rejecting Eastern’s argument, the Florida Supreme Court explained that:

Here, the legislature is merely setting forth the manner in which the department is to determine the appropriate total motor fuel and special fuel retail price. The department is directed with precision how to make such a determination. We think the language of [State v.] Welch [279 So.2d 11 (Fla.1973)] and Freimuth [272 So.2d 473 (Fla.1972)] should be interpreted to apply to statutes which incorporate federal statutes or administrative rules which substantively change the law, and not to a statute which incorporates a federal index to provide aid in making a ministerial determination.

Id. at 316.

The ALJ found the FDA revisions to the Orange Book analogous to the CPI index in Eastern Air Lines. In the order under review, the ALJ explained her reasoning:

In section 465.0251, Florida Statutes, the Legislature has set out specific standards, which when met require the removal of a drug product from the negative drug formulary. It is akin to the use of the CPI in Eastern Air Lines. The standards which the FDA used in 2001 to determine whether a drug product is therapeutically equivalent are essentially the same standards used in 2007.... Naturally, as new drugs are sought to be approved, the list of reference listed, “A” rated, and therapeutically equivalent drug products will vary, like the CPI will vary. When drug products meet the criteria listed in section 465.0251, Florida Statutes, the removal becomes a ministerial duty.

As a result, because Mylan had demonstrated that LS under the 2007 Orange Book now meets the criteria of section 465.0251(1), the ALJ ruled that rule 64B16-27.500(6) was invalid and that LS must be removed from the NDF. Abbott sought a stay below, which was denied. Abbott’s motion for review in this court was denied.

Standing

As a threshold matter, Mylan argues that Abbott lacks standing to maintain this appeal because it has not demonstrated that it “is adversely affected by final agency action” as required by section 120.68(1) (emphasis added). The test for determining whether a party has standing in appellate proceedings, governed by the quoted language in section 120.68(1), is different from the standing test required to participate in an administrative hearing. To have standing to challenge the validity of an administrative rule in a rule challenge proceeding before an ALJ, a person must be “substantially affected.” § 120.56(l)(a), Fla. Stat. An intervenor, like Abbott, must similarly be “substantially affected” to participate in the rule challenge proceedings. § 120.56(l)(e), Fla. Stat.

In this case under review, Abbott has alleged that it is adversely affected because the final order will directly lead to significant market share losses. Mylan contends, however, that economic injury suffered by Abbott is insufficient to establish standing on appeal under Florida Society of Ophthalmology v. State Board of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988). Abbott responds that Mylan is confusing and intermingling the different tests for standing that exist at the trial and appellate levels of the administrative process. More importantly, Abbott argues that this is a rule challenge proceeding and economic injury may be a basis for establishing standing in such a proceeding. See Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., So.3d -, - (Fla. 2d DCA 2009) (“standing depends on the nature of the injury asserted and the purpose and scope of the administrative proceeding”).

Florida, Society of Ophthalmology v. State Board of Optometry provides that “party status will be accorded only to those persons who will suffer an injury to then* substantial interests in a manner sought to be prevented by the statutory scheme,” 532 So.2d at 1284, for purposes of a section 120.57(1) hearing. That case does not involve a rule challenge, however. As this court explained in Department of Professional Regulation, Board of Dentistry v. Florida Dental Hygienist Association, Inc., 612 So.2d 646, 651 (Fla. 1st DCA 1993):

Moreover, it should be noted that unlike Florida Society of Ophthalmology v. State Board, of Optometry, 532 So.2d 1279, 1284 (Fla. 1st DCA 1988), the present case is a rule challenge proceeding, not an attempt to gain access to a 120.57(1) licensing proceeding. This distinction is significant Prior decisions in licensing or permitting cases have made it clear that a claim of standing by third parties based solely upon economic interests is not sufficient unless the permitting or licensing statute itself contemplates consideration of such interests, or unless standing is conferred by a rule, statute, or based on constitutional grounds. Florida Medical Association, 426 So.2d at 1117-118; Florida Society of Ophthalmology, 532 So.2d at 1287. Further, as we reiterated in State Board of Optometry, standing in a licensing proceeding may well have to be predicated on a somewhat different basis than standing in a rule challenge proceeding, because there can be a difference between the concept of “substantially affected” under section 120.56(1) and “substantial interest” under section 120.57(1). 538 So.2d at 880.

(Emphasis added); see also Fla. Med. Assn., Inc. v. Dep’t of Prof'l Regulation, 426 So.2d 1112, 1115 (Fla. 1st DCA 1983) (recognizing that an interest economic in nature can furnish the basis for standing to challenge a proposed or adopted agency rule).

Standing at the appellate level is governed by section 120.68(1). Under this statute, Abbott has standing if four conditions are satisfied: “(1) the action is final; (2) the agency is subject to the provisions of the [Administrative Procedure] Act; (3) [the person seeking review] was a party to the action which he seeks to appeal; and (4) [the party] was adversely affected by the action.” Daniels v. Florida Parole and Probation Comm’n, 401 So.2d 1351, 1353 (Fla. 1st DCA 1981). The first three requirements are not at issue in this case and Abbott satisfies the fourth requirement under the case law. See Indian Trail Improvement Dist. v. Dep’t of Cmty. Affairs, 946 So.2d 640, 641 (Fla. 4th DCA 2007) (recognizing that the adverse effect of an agency decision increasing competition in a service area is sufficient to support appellate standing). Abbott’s stake in this appeal extends beyond a mere “generalized interest” in the NDF. By removing LS from the NDF, the ALJ’s order would require a pharmacist to dispense generic LS products to patients whose physicians have written a prescription for Syn-throid®, which Abbott manufactures. Abbott is adversely affected because the final order will directly lead to significant market share losses.

Finally, we reject Mylan’s argument that Abbott lacks standing on appeal based upon this court’s decision in Florida Chapter of the Sierra Club v. Suwannee American Cement Company, Inc., 802 So.2d 520, 521 (Fla. 1st DCA 2001). In Suwannee American, the Sierra Club and Save Our Suwannee, Inc. (SOS), two environmental advocacy organizations, possessed standing at the administrative level by virtue of their compliance with section 403.412(5). On appeal, this court held that the Sierra Club and SOS did not possess standing to challenge the administrative order at the appellate level because neither Sierra Club nor SOS had shown that the agency action “created an ‘injury in fact’ or impending injury to its interest or an adverse effect with respect to any of its individual members.” 802 So.2d at 522 (citations omitted). An assertion of standing based on a generalized interest in the environment was not sufficient. Id. at 522-23; see also Legal Envtl. Assistance Foundation, Inc. v. Clark, 668 So.2d 982, 986-87 (Fla.1996). Unlike the environmental groups in Su-ivaimee American, here Abbott has a very specific interest that is adversely affected by the order under review.

Mootness

While this appeal was pending, My-lan filed a suggestion of mootness arguing that rule 64B16-27.500(6) became void by operation of law under section 120.56(3)(b). That statute provides:

The administrative law judge may declare all or part of a rule invalid. The rule or part thereof declared invalid shall become void ivhen the time for filing an appeal expires. The agency whose rule has been declared invalid in whole or in part shall give notice of the decision in the Florida Administrative Weekly in the first available issue after the rule has become void.

(Emphasis added). Mylan reasoned that, because neither the Board of Medicine nor the Board of Pharmacy has filed an appeal from the ALJ’s determination that rule 64B16-27.500(6) was an invalid exercise of delegated legislative authority, the rule became void. As a result, Mylan points out, the Board of Pharmacy has issued a notification that LS has been deleted from Florida’s NDF. Mylan asserts that this court cannot order the Board of Pharmacy to readopt a rule, adoption of which is not mandated by statute.

Abbott responds that the Board of Pharmacy took no action on rule 64B16-27.500(6), but simply provided notice of the decision by the ALJ. Further, Abbott argues that the plain language of section 120.56(3)(b) states that the rule becomes void if “the time for filing an appeal expires.” Thus, if an appeal is filed, “the time for filing an appeal” does not “expire” and the statute does not apply. We agree.

As this court recognized in State Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878, 889 (Fla. 1st DCA 1988):

The statutory scheme [of section 120.56(3) ] is obviously intended to avoid the chaotic uncertainty that would necessarily flow from retroactively invalidating agency action taken in reliance on the presumed validity of its rule prior to a proper rule challenge proceeding holding the rule invalid. Applying the underlying section 120.56(3) to this case, we hold that rule 21Q-10.001, which was held invalid by the hearing officer and our opinion, will become void and ineffective as of the date the decision of tins court becomes final.

(Emphasis added). Thus, section 120.56(3) delays the date on which a rule shall become void until after appellate proceedings have ended. To interpret this statute in any other manner would deny a party the right to appellate review of an ALJ order invalidating a rule in the absence of a stay. Such a result is not supported by any authority.

Section 165.0251

We now turn to the merits of the parties’ arguments with respect to section 465.0251. We review an ALJ’s conclusions of law de novo. Steward v. Dep’t of Children & Families, 865 So.2d 528, 530 (Fla. 1st DCA 2003). Further, because the issues we consider here are primarily those of statutory or constitutional interpretation, our standard of review for those issues is also de novo. Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 485 (Fla.2008). Below, the parties agreed that there were no disputed issues of material fact and that the ALJ could resolve the case by summary final order pursuant to section 120.57(l)(h). To the extent that we find that the ALJ’s action is based upon a finding of fact, section 120.68(7)(b), Florida Statutes, we may set aside the ALJ’s order if it depends upon any finding of fact that is not supported by competent, substantial evidence established in the record of the administrative hearing. Wise v. Dep’t of Mgmt. Servs., Div. of Ret., 930 So.2d 867, 870-71 (Fla. 2d DCA 2006).

As it did below, on appeal Abbott asserts that, because section 465.0251 provides that “if every commercially marketed equivalent of that drug product is ‘A’ rated as therapeutically equivalent to a reference listed drug ...” (emphasis applied), every commercially marketed LS product must be “A” rated to all of the reference listed drugs. If that position had been accepted by the ALJ, the ALJ would have been required to leave LS on the NDF because it is uncontroverted that no generic LS is “A” rated to Levothroid®. We hold that the ALJ correctly interpreted section 465.0251(1) in ruling that the statute is clear and unambiguous and provides that a generic drug product is to be removed from the NDF list if the generic equivalent is “A” rated as therapeutically equivalent to any single reference listed drug in the Orange Book. The use of the indefinite ai’ticle “a” in the statute requires a reading of “reference listed drag” as a singular noun. See Webster’s Third New Int'l Dictionary 1 (1966) (“a” is “used as a function word before most singular nouns other than proper and mass nouns.... ”). Accordingly, we l'eject Abbott’s contention that a named drug product like LS can be removed from the negative drug formulary only if all generic LS products are “A” rated as to each reference listed drug.

Alternatively, Abbott argues that reversal is nonetheless required because the ALJ unconstitutionally applied section 465.0251. Abbott contends that the legislature could not have intended to incorporate updated editions of the Orange Book to govern section 465.0251 because of the long-established constitutional rule in Florida that the legislature’s adoption “in advance [of] any federal act or raling of any fedei-al administrative body which may be adopted in the future would amount to an unlawful delegation of legislative authority.” State v. Rodriquez, 365 So.2d 157, 160 (Fla.1978).

Article II, § 3 of the Florida Constitution provides:

The powers of the state government shall be divided into legislative, executive and judicial branches. No person belonging to one branch shall exercise any power appertaining to either of the other branches unless expressly provided therein.

This constitutional provision has been construed “to prohibit the legislature, absent constitutional authority to the contrary, from delegating its legislative power to others.” Gallagher v. Motors Ins. Corp., 605 So.2d 62, 71 (Fla.1992). Under this non-delegation principle, Florida courts have long held that while the legislatui-e may enact laws that adopt provisions of federal statutes or other regulations of a federal administrative body that are in existence and in effect at the time the legislature acts, where the legislature incorporates in a Florida statute a future federal act or ruling of a federal administrative body, such incorporation constitutes unconstitutional delegation of legislative power. See, e.g., Fla. Indus. Comm’n v. State, 21 So.2d at 603 (holding that chapter 19637, Laws of Florida (1939), which excluded from its application any employer who was “within the operation of Title IX of the Federal Social Security Act, or amendments thereto,” must be confined to the federal act as it existed when the exception clause was enacted in 1939); State v. Welch, 279 So.2d at 13-14 (upholding the determination of the trial court that section 404.015 stating “the intent of the legislature that all drugs controlled by the drug abuse laws of the United States, now or in the future, shall, in addition to the drugs specified by the laws of Florida, be controlled by the terms of this chapter” was susceptible to a constitutional challenge because it sought “to incorporate by reference future legislative and/or administrative actions of jurisdictions outside of Florida”); State v. Camil, 279 So.2d 832 (Fla.1973) (holding that the defendant could not be convicted of possessing PCP, when PCP was not a prohibited drug when section 404.01(3) was enacted in 1967; that statute defined “hallucinogenic drug” as “any other drug to which the drug abuse laws of the United States apply” and PCP was not outlawed by United States law until after 1967); Dep’t of Legal Affairs v. Rogers, 329 So.2d 257, 265 (Fla.1976) (construing Florida’s “little FTC act,” which required rules adopted pursuant to the act to be consistent with decisions of the Federal Trade Commission and federal courts interpreting provisions of the Federal Trade Commission Act, to require compliance with the federal trade law standard in effect on or before the effective date of the act); State v. Rodriquez, 365 So.2d at 160 (construing section 409.325(2)(a) as incorporating federal food stamp law “in effect at the time Section 409.325(2)(a) was enacted”); Hughes v. State, 943 So.2d 176, 190 (Fla. 3d DCA 2006) (holding that, because section 860.13 governing operation of aircraft while intoxicated was last reenacted without any amendments in 1983, “incorporation of a federal standard that did not come into existence until after 1983 would be unconstitutional”); Brazil v. Div. of Admin., State Dep’t of Transp., 347 So.2d 755, 757-58 (Fla. 1st DCA 1977) (holding that it would be permissible for DOT to remove a sign which violated the spacing requirement which was part of the federal regulations when section 479.02, containing the phrase “subject to current federal regulations,” became effective, but it would be unconstitutional to construe the statute as allowing the legislature to adopt, in advance, any federal act or ruling); see generally F. Scott Boyd, Looking Glass La%o: Legislation by Reference in the States, 68 La. L. Rev. 1201, 1251-1280 (2008).

Where a statute generally incorporates a federal law or regulation, to avoid holding the subject statute unconstitutional, Florida courts interpret the statute as incorporating only the federal law in effect on the date of adoption of the Florida Statute. Rodriquez, 365 So.2d at 160. As the Florida Supreme Court has explained, “the legislature is presumed to have intended to enact a valid and constitutional law and ... we will construe a statute, if possible, in such a manner as will be conducive to its constitutionality.” Rogers, 329 So.2d at 265. For example, in Rodriquez, the entire court agreed that section 409.325(2)(a), Florida Statutes, which purported to incorporate into the statute future changes to the federal food stamp laws, provided for an unconstitutional delegation. Four justices concluded that the statute should be interpreted only to incorporate federal law as it existed when the Florida statute was enacted, and, as a result, held the statute constitutional. 365 So.2d at 160. As the majority explained:

Since the Legislature is presumed to have enacted a valid and constitutional law and since statutes are to be construed, when reasonably possible and consistent with protection of constitutional rights, in such a manner so as to avoid conflict with the Constitution, we conclude that the Legislature intended to incorporate federal law and regulations in effect at the time section 409.325(2)(a) was enacted.
The incorporation of only the federal law in effect at the time of the enactment of section 409.325 may appear unworkable because changes in the federal law would not take effect in Florida. The Legislature, however, to avoid this problem, may update Chapter 409 each year, as they update' Florida’s corpoi*ate income tax statute by bringing forward the Internal Revenue Code each year.

Id. (citations and footnote omitted). Three justices dissented and would have held the Florida statute unconstitutional as an unlawful delegation of legislative authority because it incorporated future federal law. Id. at 161-62. Similarly, in Freimuth, the court interpreted section 404.01(3), Florida Statutes (1969), which defined “hallucinogenic drug” by reference to federal law, as not incorporating those drugs listed in federal law adopted after the date of enactment of section 404.01 in 1967. 272 So.2d at 476.

In Eastern Air Lines, the court explained that this well-established non-delegated principle applies “to statutes which incoiporate federal statutes or administrative rules which substantively change the law ...” 455 So.2d at 316. The court did not apply this principle in Eastern Air Lines, however, because it found that the statute directing the use of the CPI in calculating a Florida fuel tax “merely set forth the manner in which the department is to determine the appropriate total motor fuel and special full retail price [and] [t]he department is directed with precision how to make such a determination.” Id.

We agree with Abbott that the CPI index is similar to a mathematical formula which the state agency could use to arrive at the fuel price. Nothing in this record, however, leads us to the conclusion that the Orange Book and the complex science which the FDA uses to develop the list of generic drugs included in the Orange Book is similar in nature to the CPI at issue in Eastern Air Lines. While the FDA standards require therapeutic equivalence for drug products to be “A” rated in the Orange Book, and these standards did not change from 2001 to 2007, this fact is not determinative. The record here is clear that the scientific methodology applied by the FDA in approving drug products for inclusion in editions of the Orange Book is not static and unchanging. The FDA has revised and will revise its methodology to reflect scientific developments. In short, we conclude that the drug products listed in the Orange Book are much more like the list of hallucinogenic drugs in Frei-muth than the CPI index in Eastern Air Lines. Because the FDA makes substantive changes to the Orange Book, to interpret section 465.0251 as allowing the FDA’s Orange Book to determine which drugs should be on the NDF would constitute an unlawful delegation of legislative authority to the FDA. See Freimuth.

Moreover, we are persuaded that, when the legislature enacted section 465.0251, it did not intend the result obtained by the ALJ’s order. Subsection (2) of that statute clearly states the legislative intent that the statute was not meant to override section 465.025. “It is axiomatic that statutes must be read with other related statutes and other related portions of the same statute.” State v. Negrin, 306 So.2d 606, 607 (Fla. 1st DCA 1975). “Where possible, courts must give effect to all statutory provisions and construe related statutory provisions in harmony with one another.” Forsythe v. Longboat Key Beach Erosion Control Dist., 604 So.2d 452, 455 (Fla.1992).

With these principles in mind, we read section 465.0251 as only applying the edition of the Orange Book in effect on or before the date on which the statute was enacted. This interpretation leaves in full force and effect the provisions of section ■ 465.025(6), which delegates the authority to establish the NDF to the Board of Pharmacy and the Board of Medicine.' Thus, those Boards are left with the authority to determine whether certain drug substitutions would pose a threat to the health and safety of Florida patients. We cannot accept that in section 465.0251 the legislature intended to delegate to the FDA the legislative authority to determine, on a continuing basis, which drug substitutions would pose a threat to health and safety of Florida patients. If, indeed, the legislature intends the NDF to be governed by the revised versions of the Orange Book, as Mylan asserts, then the legislature can update section 465.0251 each year “by bringing forward [the Orange Book] each year.” Rodriquez, 365 So.2d at 160.

REVERSED.

KAHN and WEBSTER, JJ., concur.

      . Ctr. For Drug Evaluation and Research, U.S. Food & Drug Admin., Approved Drug Products with Therapeutic Equivalence Evaluations (2007), commonly known as the "Orange Book,” see 21 U.S.C. § 355(j)(7)(A)(i) (2006), identifies drug products approved on ihe basis oí safety and effectiveness by the FDA under the Federal Food, Drug and Cosmetic Act. It also includes therapeutic equivalence (TE) evaluations for approved multi-source prescription drug products. The Orange Book is updated annually and is supplemented with monthly cumulative updates. It can be found online at FDA, Electronic Orange Book, http://www.fda.gov/cder/ob/ (last visited May 4, 2009) and that version is updated daily.

      . Mylan admits that standing was not raised as an issue by either party in the proceeding below. Interestingly, as pointed out by Abbott, Mylan did not challenge Abbott's standing below, because Mylan's standing to initiate this rule challenge proceeding was also based on its financial interests. Nevertheless, Mylan asks this court to deny Abbott standing to bring this appeal on the ground that Abbott's only interest in the proceeding is financial and to overlook that both parties based their standing below on their financial interests at stake in the implementation of the generic substitution law. As recognized by this court in Grand Dunes Ltd. v. Walton County, 714 So.2d 473, 475 (Fla. 1st DCA 1998), standing in the administrative context is a matter of subject matter jurisdiction and cannot be conferred by consent of the parties. Thus, if indeed economic interest was not sufficient to grant these parties the necessary standing to participate in the rule challenge proceeding below, the ALJ would have lacked jurisdiction to rule on the merits of the rule challenge and her order would have been a nullity. Examining the case law, we are satisfied that the act of removing LS from the NDF, which has the effect of allowing pharmacists to freely substitute generic drugs for Abbott’s brand name drug Synthroid®, is a direct injury in fact "of sufficient immediacy and reality” to grant Abbott (and Mylan) standing in the rule challenge proceeding. Fla. Bd. of Med. v. Fla. Acad, of Cosmetic Surgery, Inc., 808 So.2d 243, 250 (Fla. 1st DCA 2002). See also Florida Dep’t of Offender Rehabilitation v. Jerry, 353 So.2d 1230, 1236 (Fla. 1st DCA 1978). It cannot be disputed that both parties’ interests are within the zone of interest regulated by §§ 465.025 and 465.0251 and rule 64B 16-27.500.

      . The parlies have not raised, and we do not address, whether disputed issues of fact do exist or whether the proceeding was appropriate for resolution by summary final order.


author: PER CURIAM.

text:
    William M. SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-350.
    District Court of Appeal of Florida, First District.
    June 22, 2009.
    Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Giselle Denise Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Peters v. State, 984 So.2d 1227 (Fla.2008).

HAWKES, C.J., ALLEN and CLARK,' JJ., concur.


text:
    Cowell Nemoy BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-683.
    District Court of Appeal of Florida, Fifth District.
    June 23, 2009.

      Cowell N. Brown, Lake City, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Richardson v. State, 918 So.2d 999 (Fla. 5th DCA 2006).

GRIFFIN, SAWAYA and MONACO, JJ., concur.


author: BROWNING, J.

text:
    Thomas F. MATHENY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D08-3776.
    District Court of Appeal of Florida, First District.
    June 24, 2009.
    Nancy A. Daniels, Public Defender; and Barbara J. Busharis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

A jury found Thomas F. Matheny, Jr. (Appellant) guilty, as charged, of one count of willfully refusing or failing to stop and fleeing a law-enforcement officer, who was driving a patrol vehicle with identifying insignia and who had activated the siren and lights, a violation of section 316.1935(2), Florida Statutes (2007) (Count One); and one count of resisting an officer without violence, a violation of section 843.02, Florida Statutes (2007) (Count Two). The trial court classified Appellant as a habitual felony offender and sentenced him to seven years’ incarceration on Count One and to time served on Count Two. Because Appellant has not shown fundamental error, we affirm his convictions and sentence.

For the first time on appeal, Appellant contends that the evidence is insufficient to prove either of the two charged offenses. Specifically, he asserts that the State failed to show a willful refusal, failure to stop, or flight from law enforcement or willful resisting of an officer. The sufficiency of the evidence was not challenged in the trial court. In fact, at the end of the State’s case, defense counsel (Mr. Har-grove) orally acknowledged that the State had “barely” presented a prima facie case, so that the case should go to the jury on both counts. Because the question of the sufficiency of the evidence was not preserved via a timely, specific challenge in the trial court, Appellant’s claim is not cognizable on direct appeal unless he can demonstrate fundamental error. F.B. v. State, 852 So.2d 226, 229 (Fla.2003). Of the two exceptions to the preservation requirement (to challenge the legal sufficiency of the evidence) set forth in F.B., the one applying to death penalty cases obviously is inapplicable here. The second exception applies “when the evidence is insufficient to show that a crime was committed at all.” Id. at 230.

We look to the State’s case to determine whether the evidence is sufficient, in the words of F.B., 852 So.2d at 230, “to show that a crime was committed at all.” Deputy Kirkland, with the Madison County Sheriffs Office, testified that around 1:30 A.M. on October 16, 2007, as he was traveling southbound on Highway 53 toward Interstate 10, he observed a pickup truck approaching from the opposite direction in the other lane. The deputy’s radar indicated that the pickup truck was going 83 m.p.h. along a 60-m.p.h. stretch of highway. The truck’s right tires went off the roadway onto the grass shoulder for approximately 100 feet. Intending to effect a traffic stop for speeding, Deputy Kirkland pulled over to the shoulder of the road, turned around, and activated his loud sirens and blue strobe lights. His white automobile had the green markings and star insignia clearly indicating it was a sheriffs department vehicle, including a scroll bar on top and “wig-wags” in the headlights. As the deputy pursued the pickup truck driven by Appellant, the truck accelerated, and at one point Deputy Kirkland was going 110 m.p.h. trying to catch up with the pickup truck, which was proceeding at over 100 m.p.h. Deputy Fletcher and Corporal Maurice, driving marked vehicles with activated sirens and lights, got involved in the high-speed pursuit and were following Deputy KirMand. There was no other traffic on the roadway at that hour.

Approximately 1-1/2 minutes into the chase, Appellant slowed to about 65 or 70 m.p.h. and tried unsuccessfully to negotiate a sharp left-hand turn onto Harvey Greene Drive; however, his speed thwarted the turn and forced Appellant to veer back onto Highway 53. A dispatch to the Madison Police Department for assistance informed the police that a truck was eluding the authorities and traveling at a high speed toward the city limits of Madison. Although Appellant was traveling north, he crossed a double yellow line and proceeded over a blind overpass in the southbound lane. As Officer Agner and Sergeant Curtis maneuvered their marked police vehicles so as to block the roadway, Appellant decelerated to about 10 m.p.h. and left the road in an effort to go around the blockade. Shortly afterwards, Appellant’s forward movement was blocked, forcing him to stop on the shoulder of the highway about two miles from where the chase began. Five law-enforcement officers approached with their sidearms drawn and loudly ordered Appellant to get out of the truck due to concerns about officer safety. Appellant did not comply with the several commands to park the pickup truck, shut off the engine, and get out. ' When Sergeant Curtis opened the driver’s side door and grabbed Appellant’s arm to try to remove him from the vehicle, Appellant remained seated, grabbed the steering wheel of the truck with both hands, and resisted until Sergeant Curtis was able forcibly to disengage Appellant’s grip and pull him to the ground. The officers then arrested Appellant.

Section 316.1935(2), Florida Statutes (2007), makes it a third-degree felony willfully to flee or attempt to elude a law-enforcement officer who is in an authorized law-enforcement vehicle with agency insignia and other prominently displayed jurisdictional markings and activated siren and lights. Certainly, the State presented a prima facie case of Appellant’s willful refusal to stop and flight from law-enforcement officers who were pursuing him in clearly marked patrol vehicles with activated sirens and lights. Likewise, the State presented evidence from which the jury reasonably could conclude that after being ordered to turn off the engine and exit the truck, Appellant wilfully continued to resist, oppose, or obstruct the officer by grabbing the steering wheel until he was forced out of his seat. See § 843.02, Fla. Stat. (2007).

While admitting that he “may have been” speeding on the date in question, Appellant testified that he had neither seen the deputies in hot pursuit nor noticed their blue lights in the nighttime until he went up the overpass shortly before being stopped. He denied trying to elude the authorities. Appellant testified he had told the officers that his shift was broken and that if he took his foot off the brake, the truck would move. The conflicts in the evidence relating to the two charges presented classic questions for the jury to weigh and resolve. See Tibbs v. State, 397 So.2d 1120, 1123 (Fla.1981); Chaudoin v. State, 362 So.2d 398, 399 (Fla. 2d DCA 1978). The testimonial evidence allowed the jury to find Appellant guilty of both crimes as a matter of law.

Because Appellant has not met the heavy burden to show fundamental error, we AFFIRM the judgment and sentence.

HAWKES, C.J., and VAN NORTWICK, J., concur.