author: WALLACE, Judge.

text:
    STATE of Florida, Petitioner, v. Jonathan FERNANDEZ; Jeffery Cantu; Michel Gonzalez; Damicela Riquene-Ceballo; Camilo Alvarez Acosta; Santiago Cabrera; Yusnel Almarales; Diego Hernandez; Dagneris Baldespino; Benigno Rodriguez; Raiden Acosta; Andino Loyola-Hernandez; Phillip Varela; Antonio Rosario; Mario Lapido; Daniel Kim Cotten, a/k/a Daniel Cotton; Francisco Lozano; Warren Keene; Alexander Prieto; Edwin Fernandez; Alexei Davidson; and Christopher Lozano, Respondents.
    No. 2D13-2998.
    District Court of Appeal of Florida, Second District.
    May 21, 2014.
    Rehearing Denied July 7, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Petitioner.
    Arthur N. Eggers of Arthur N. Eggers, P.A., Tampa, for Respondent Warren Keene.
    Nicholas Gianni Matassini of The Matas-sini Law Firm, Tampa, for Respondent Jonathan Fernandez.
    Darlene Calzón Barror, Tampa, for Respondent Camilo Alvarez Acosta.
    Brian E. Gonzalez of Law Office of Brian E. Gonzalez, P.A., Tampa, for Respondent Alexei Davidson.
    Mary Jennifer Arena of Law Offices of Cynthia Lakeman, P.A., Tampa, for Respondent Diego Hernandez.
    Jorge Leon Chalela of Jorge Leon Chá-lela, P.A., Tampa, for Respondents Yusnel Almarales, Santiago Cabrera, and Michel Gonzalez.
    No appearance for remaining Respondents.
   WALLACE, Judge.

The State seeks review by certiorari of the trial court’s order requiring disclosure of (1) the identities and statements of cooperating defendants in the underlying criminal prosecution and in related cases, and (2) the redacted transcript of a proffer statement made by a single individual who has been charged in a related case. We grant the petition in part, and we deny it part.

I. INTRODUCTION

In the underlying prosecution, case number 10-CF-009043, the State charged twenty-eight individuals with a variety of offenses relating to the trafficking of cocaine and marijuana, money laundering, racketeering, and conspiracy. Law enforcement officers apparently used search warrants and extensive wire-tapping in their investigation of the alleged offenses. Several of the defendants in the underlying prosecution either filed or joined in motions to compel the State to disclose certain information. These defendants sought the disclosure of the identities of and the statements made by all codefen-dants and confidential informants in case number 10-CF-009043 and related cases, including the statements of codefendants who had cooperated with the State during its investigation. The defendants requested this information without regard to whether or not the State intended to call these persons as witnesses at trial. In the order under review, the trial court ordered the State to make the requested disclosures in substantial part and reserved ruling on a portion of the defense request.

II. THE PROCEDURAL HISTORY

The defendants, Jonathan Fernandez and Warren Keene, filed the four defense motions that are pertinent to our consideration of this case. In addition, the State filed a motion in opposition to the defense requests. Listed in chronological order, the pertinent motions are as follows:

1. Fernandez: “Motion to Compel Disclosure of Existence and Substance of Promises of Immunity, Leniency, or Preferential Treatment and Impeaching Information,” dated April 12, 2012.
2. Keene: “Adoption of Fernandez’ Motion to Compel Disclosure and Memorandum of Law — Disclosure Specific to Keene,” filed January 16, 2013.
3. Fernandez: “Motion to Compel,” dated March 6, 2013.
4. State: “Motion to Declare Confidentiality of Court Records and Motion for Protective Order,” dated April 18, 2013.
5.Fernandez: “Motion to Disclose Identity of Confidential Informants and Cooperating Co-Defendants,” dated May 3, 2013.

The parties inform us that several of the codefendants in the underlying prosecution have either adopted or joined in one or more of the motions filed on behalf of Mr. Fernandez and Mr. Keene.

On February 5, 2013, the State responded to the Fernandez motion of April 12, 2012, “Motion to Compel Disclosure of Existence and Substance of Promises.” The State’s response addresses, paragraph by paragraph, each of the defense requests in the Fernandez motion. The requests by the defendants and corresponding responses by the State pertinent to the issues in this case are as follows:

7. Any and all consideration or promises of consideration given to or on behalf of the witnesses or expected or hoped for by the witnesses.
Answer: None, except for matters not subject to disclosure under Fla. R. Crim. P. 3.220(g)(2).
9. Whether the witness has testified before any Court, Grand Jury or other tribunal or body ... or otherwise narrated any facts regarding Defendants or this investigation ....
Answer: One or more Defendants in the [Hillsborough Circuit Criminal Case Numbers 10-CF-0009043], 10-CF-014101, and 10-CF-014110 have submitted to a debriefing after being arrested and represented by counsel. Any debriefings related to the facts and circumstances relevant to this case were made in confidence and under an agreement of use immunity.

The State also provided a “Tenth Amended Notice of Discovery and Additional Witness List in Response to Defendants’ Motion to Compel Disclosure [etc].” This notice lists the twenty-eight persons charged in case number 10-CF-009043 (the underlying prosecution), two persons charged in case number 10-CF-009032, two persons charged in case number 10-CF-014110, and two persons charged in ease number 10-CF-014101. In the notice, the State says that these are all of the persons who may have relevant information, but that it does not necessarily intend to call all of them as witnesses at trial.

The State also includes in its notice the names of five additional “Defendants/witnesses” that it suggests the State may call as witnesses at trial. The “Defendants/witnesses” listed include the following: two persons who were charged in case number 10-CF-009032; one person who was charged in case number 10-CF-014110; one person who was charged in case number 10-CF-014101; and one person who is the only codefendant named as a potential witness for the State who was charged in case number 10-CF-009043, the underlying prosecution.

In response to the request for written or recorded statements by any person whose name has been furnished, the prosecution responded that certain depositions had been taken by the Office of the Public Defender in case number 10-CF-014101, but that the State was not aware of any transcripts that resulted from the depositions. Notably, the prosecution further responded to this request as follows:

The undersigned is aware of statements of one or more Defendants/witnesses under [Florida Rule of Criminal Procedure 3.220(b(l)(A) ], other than discovery already provided. However, the undersigned is unaware of any statements of any such Defendant/witness subject to disclosure under Fla. R. Crim. P. 3.220, as those statements which have not been provided in discovery were either: (1) unrelated to the facts and circumstances of the captioned case, (2) related to ongoing investigations or intelligence gathering regarding unrelated cases or investigations, or (3) made during debriefing sessions of Defendants/witnesses, not identified as State witnesses, above, and made under a promise of immunity or confidentiality of such statements until such time as the Defendant/witness agrees to be identified as a witness in the case.

(Emphasis added). In the trial court, the defense challenged the prosecution’s refusal to disclose the statements purportedly made to it “under a promise of immunity or confidentiality ... until such time as the Defendant/witness agrees to be identified as a witness in the case.”

Comments appearing in the transcript of the hearing in the trial court suggest that the three men named as defendants in case numbers CF-10-009032 and 10-CF-014110 have entered pleas with the expectation of cooperating with the State. In addition, we glean from the hearing transcript that the ease file for the two men charged in case number 10-CF-009032 had been sealed by a circuit judge, but the circuit judge whose order is the subject of this petition ordered or intended to order that the case file be reopened.

On March 20, 2013, the trial court conducted a hearing on the first two defense motions, i.e., Mr. Fernandez’s motion of April 12, 2012, and Mr. Keene’s “adoption” of the Fernandez motion. After that hearing, the trial court ordered the State to provide the requested information to the court for an in camera inspection. In response, the State provided a single transcript of the debriefing of a single individual (“Mr.X”), who had been charged in a separate “but connected” case.

The trial court conducted a follow-up hearing on May 10, 2018. Before that hearing, the remaining three motions referenced above were filed. After the follow-up hearing, the trial court entered the order that is under review.

III.THE TRIAL COURT’S ORDER

The trial court’s order comprises three distinct rulings. First, with regard to the motions that sought to compel the identity of the cooperating defendants and their statements, the trial court granted the defendants’ motions and ordered the State to disclose any written or recorded statements as well as the substance of any oral statements made by any codefendant. Second, with regard to the transcript of the debriefing of Mr. X, the trial court decided that the transcript was relevant to the underlying prosecution. For this reason, the trial court ruled that the transcript was discoverable under Florida Rule of Criminal Procedure 3.220(b)(1)(D) (“any written or recorded statements and the substance of any oral statements made by a codefendant”). However, the trial court also permitted the State to redact from the transcript references to “unrelated matters,” pagination, and the name of the court reporting service. Third, with regard to the State’s motion to declare confidentiality and motion for a protective order, the trial court denied the motion as it pertained to the codefendants and reserved ruling on the motion insofar as it sought to protect the statements of uncharged confidential informants.

IV.THE STANDARD OF REVIEW

The order under review is not one of the orders listed in Florida Rule of Appellate Procedure 9.140(c)(1) from which the State may take a nonfinal appeal. Under these circumstances, where the effect of an acquittal would be to leave the State without an effective remedy and cause irreparable harm, the Florida Supreme Court has recognized that a petition for certiorari is “an apt remedy” for those orders that adversely affect the State’s ability to prosecute. State v. Pettis, 520 So.2d 250, 253 (Fla.1988); State v. Storer, 920 So.2d 754, 758 (Fla. 2d DCA 2006). However, the relief available to the State by certiorari is limited. “While some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where ‘there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ” Pettis, 520 So.2d at 254 (citing Combs v. State, 436 So.2d 93, 96 (Fla.1983)). “Only those [petitions for certiorari] are granted in which the error is serious.” Pettis, 520 So.2d at 253. Where the trial court’s ruling does not substantially impair the State’s ability to bring its case, relief by certiorari is not available, and the petition should be dismissed. State v. Sealy-Doe, 861 So.2d 530, 531 (Fla. 4th DCA 2003).

V.DISCUSSION

A. The Availability of Relief by Certio-rari in this Case

Initially, we address the question of whether the State may properly seek review by certiorari of the trial court’s order under the circumstances of this case. The State objects to the disclosure of the information ordered by the trial court based primarily on its claim that the information is confidential and privileged. Generally speaking, the district courts of appeal have recognized an objection by the State to court-ordered discovery in a criminal case based on a claim of privilege as a basis upon which the State may seek review by certiorari of a nonfinal order. See State v. Burgos, 985 So.2d 642, 643 (Fla. 2d DCA 2008) (order requiring the disclosure of the identity of a confidential informant); State v. Borrego, 970 So.2d 465, 466 (Fla. 2d DCA 2007) (same); State v. Roberson, 884 So.2d 976, 977 (Fla. 5th DCA 2004) (order requiring the production of the mental health records of the alleged victim); State v. Famiglietti 817 So.2d 901, 902-03 (Fla. 3d DCA 2002) (en banc) (same); State v. Diamond, 553 So.2d 1185, 1192 (Fla. 1st DCA 1988) (en banc) (order requiring the alleged minor victim of a sexual battery to submit to a physical examination by a medical expert selected by the defendant). Here, the unwarranted disclosure of information claimed to be privileged in accordance with the trial court’s pretrial order would leave the State "without an effective remedy and cause irreparable harm. Accordingly, this is a case where certiorari review is “an apt remedy.” Pettis, 520 So.2d at 253.

B. The Applicable Law

The issues in this case relate to the scope of the prosecution’s discovery obligations, including its claims of privilege, where the various defendants have elected to participate in the discovery process. The law generally applicable to these questions is Florida Rule of Criminal Procedure 3.220 concerning “Discovery.” With regard to the prosecution’s discovery obligation, the rule provides, in pertinent part, as follows:

(b) Prosecutor’s Discovery Obligation

(1) Within 15 days after service of the [defendant’s] Notice of Discovery, the prosecutor shall serve a written Discovery Exhibit which shall disclose to the defendant and permit the defendant to inspect, copy, test, and photograph the following information and material within the state’s possession or control ...
(A) a list of the names and addresses of all persons known to the prosecutor to have information that may be relevant to any offense charged or any defense thereto, or to any similar fact evidence to be presented at trial under section 90.404(2), Florida Statutes....
(B) the statement of any person whose name is furnished in compliance ■with the preceding subdivision. The term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled;
(C) any written or recorded statements and the substance of any oral statements made by the defendant, including a copy of any statements contained in police reports or report summaries, together with the name and address of each witness to the statements;
(D) any written or recorded statements and the substance of any oral statements made by a codefendant.

Section (g)(2) of rule 3.220 concerning informants recognizes the State’s limited privilege to decline to disclose the identity of a confidential informant as follows:

Disclosure of a confidential informant shall not be required unless the confidential informant is to be produced at a hearing or trial or a failure to disclose the informant’s identity will infringe the constitutional rights of the defendant.

See Roviaro v. United States, 353 U.S. 53, 59-61, 77 S.Ct. 623, 1 L.Ed.2d 639 (1957) (discussing the scope and limitations of the privilege).

Pertinent to our inquiry is the distinction the discovery rule’s provisions draw between witness statements and statements made by defendants and codefen-dants based on whether or not the statements have been reduced to writing or otherwise recorded. With regard to the statements of witnesses, the prosecution need not disclose such statements unless the statements are written, recorded, or otherwise reduced to writing. Fla. R. Crim. P. 3.220(b)(1)(B). See State v. McFadden, 50 So.3d 1131, 1132-33 (Fla.2010); Burkes v. State, 946 So.2d 34, 36-37 (Fla. 5th DCA 2006); Balboa v. State, 446 So.2d 1134,1135 (Fla. 3d DCA 1984). Witness statements appearing in pertinent police and investigative reports are expressly included within the definition of statements that the prosecution must disclose. Fla. R. Crim. P. 3.220(b)(1)(B). The discovery rule treats statements made by defendants and codefendants differently. With regard to them statements, the prosecution must disclose not only “any written or recorded statements” but also “the substance of any oral statements.” Fla. R. Crim. P. 3.220(b)(l)(C)-(D). See Brown v. State, 640 So.2d 106, 107 (Fla. 4th DCA 1994).

C. Cooperating Defendants, Proffers, and “Queen for a Day” Agreements

The State challenges the order under review because it requires the prosecution to disclose certain statements made by codefendants in the underlying prosecution and by additional defendants in several other related eases. An understanding of the context in which these individuals made the statements in question is critical to an analysis of the issues in this case.

The underlying prosecution and various related cases involve more than thirty defendants. Some of these defendants have either sought to cooperate or have agreed to cooperate with the prosecution. Such individuals, who may be described as “cooperating defendants” or “accomplice witnesses,” are “participants in the criminal activity who agree to cooperate in the investigation and testify against other participants.” Ann C. Rowland, Effective Use of Informants & Accomplice Witnesses, 50 S.C. L. Rev. 679, 679 (1999). Generally speaking, the first step in the process a defendant takes to become a cooperating defendant is to make a formal statement to the prosecution concerning the information the prospective cooperator can provide in exchange for immunity or leniency. The defendant typically makes his or her statement, generally referred to as a “proffer” or “proffer statement,” in accordance with a proffer agreement. Prosecutors and members of the criminal defense bar often colloquially refer to the proffer agreement as a “Queen for a Day” letter. One commentator has outlined the process of making a proffer in accordance with such an agreement as follows:

Prior to, as well as after, indictment, a potential or actual defendant and his counsel often meet with the government in “proffer sessions” to answer questions and discuss the possibility of procuring an advantage from the government. Before commencing a proffer session, the government customarily presents the defendant with a standard proffer agreement — more commonly known as a Queen for a Day agreement — that governs the conditions under which the parties agree to conduct an interview. This “curious sobriquet in criminal law” covers the “conventional first step” in the process where defense counsel provides information to the government in an attempt to establish credibility and convince the government to consider a cooperation agreement, a plea agreement, or a non-prosecution agreement.

Benjamin A. Naftalis, “Queen for a Day” Agreements and the Proper Scope of Permissible Waiver of the Federal Plea-Statement Rules, 37 Colum. J.L. & Soc. Probs. 1, 5 (2003) (footnotes omitted). By making a proffer statement under a proffer agreement, a cooperating defendant hopes to trade knowledge gained through participation in criminal activity in exchange for immunity or leniency. Graham Hughes, Agreements for Cooperation in Criminal Cases, 45 Vand. L. Rev. 1, 13 (1992).

In this case, Mr. Fernandez and several of the other defendants in the underlying prosecution sought the disclosure of proffer statements made by any cooperating codefendant in the underlying prosecution and in the related ease. The State declined to produce this information, claiming that it was confidential and privileged.

D. Cooperating Codefendants and their Statements

The trial court’s order directs the State to disclose the identity of any cooperating codefendants in the underlying prosecution and related cases and the substance of all statements, written or oral. With one exception, we find no departure from the essential requirements of the law in this part of the order under review. Under rule 3.220, an individual’s status as a codefendant does not relieve the prosecution of its obligation to list the codefen-dant as a potential witness. See Kilpatrick v. State, 376 So.2d 386, 388 (Fla.1979); Carnivale v. State, 271 So.2d 793, 794-95 (Fla. 3d DCA 1973). The prosecution was obligated to disclose to the defense “any written or recorded statements and the substance of any oral statements made by a codefendant.” Fla. R. Crim. P. 3.220(b)(1)(D). In addition, the prosecution was obligated to disclose to the defense written or recorded witness statements. Fla. R. Crim. P. 3.220(b)(1)(A), (B).

We have only one quibble with this part of the trial court’s order. The trial court ordered the prosecution to disclose the written statements and the substance of oral statements not only of the codefen-dants in case number 10-CF-009043, the underlying prosecution, but also of the other defendants in the related cases. However, the individuals charged in the related cases are not codefendants of the defendants charged in the underlying prosecution because — at least insofar as our limited record reveals — the State has not charged those defendants with the same crime. However, the defendants charged in the related cases still qualify as witnesses. It follows that the prosecution was required to disclose the written or oral recorded statements of the codefen-dants charged in the related cases. Fla. R. Crim. P. 3.220(b)(1)(B). The trial court’s order departs from the essential requirements of the law only to the extent that it ordered the prosecution to disclose the substance of the unrecorded oral statements made by the defendants in the related cases. These individuals qualify as witnesses, but not as codefendants. Accordingly, the prosecution was not required to disclose the substance of their unrecorded oral statements. McFadden, 50 So.3d at 1132-38; Burkes, 946 So.2d at 36-37.

E. The Transcript of the Debriefing of Mr. X

In the order under review, the trial court also ordered the prosecution to disclose the transcript of the debriefing of Mr. X on the ground that the transcript was discoverable under rule 3.220(b)(1)(D) (“any written or recorded statements and the substance of any oral statements made by a codefendant”). Here, the trial court reached the correct result, but for the wrong reason. The State charged Mr. X in one of the related cases, but not in the underlying prosecution. Thus he did not qualify as a codefendant, and the State was not required to disclose the transcript of Mr. X’s debriefing under rule 3.220(b)(1)(D). Nevertheless, Mr. X had information relevant to the case, and he qualified as a witness. Undeniably, the State had a transcript of Mr. X’s debriefing session; the transcript qualified as a recording of an oral statement. Thus the prosecution was required to disclose the transcript under rule 3.220(b)(1)(B).

F. The State’s Arguments

The State makes four arguments in support of its contention that the trial court’s order departs from the essential requirements of the law. For the reasons set forth below, we find all of these arguments to be unpersuasive.

1. Confidential Informants

The State’s first argument proceeds from the notion that any cooperating defendants are acting as “confidential informants.” According to the State, the trial court’s order departs from the essential requirements of the law because it “ignores the government’s long standing common-law privilege not to disclose the identity of confidential informants [] and orders disclosure of this confidential privileged information based on a finding of mere relevance.” This court has described the State’s limited privilege as follows:

The State has a limited privilege to withhold the identity of persons who provide law enforcement officers with information about criminal activity. Because. the State has the privilege of nondisclosure, the burden is on the defendant claiming an exception to the rule to show why he is entitled to disclosure. The State’s privilege of nondisclosure may be overcome when an informant’s identity or the content of the informant’s communication would be relevant and helpful to a specific defense or when disclosure is “essential to a fair determination of the cause at issue.”

Borrego, 970 So.2d at 467 (citations omitted). Rule 3.220(g)(2) recognizes the State’s limited privilege with regard to disclosure of a confidential informant.

The State’s argument based on the confidential informant privilege confuses the role of a cooperating defendant or accomplice witness with the role of an informant. An informant is “[o]ne who informs against another; esp., one who confidentially supplies information to the police about a crime, sometimes in exchange for a reward or special treatment.” Black’s Law Dictionary 849 (9th ed. 2009). The tasks that informants perform are varied. An informant may provide information to law enforcement officers for their use in obtaining a search warrant. An informant may provide law enforcement officers with a tip about a planned crime that has not yet occurred, a crime that is already in progress, or a crime that has already occurred. An informant may or may not be a participant in the criminal activity at issue. Participation by informants in criminal activity at the behest of law enforcement officers often takes the form of setting up purchases and sales of controlled substances or illegal weapons. In addition, an informant may infíltrate organizations under investigation to gather intelligence for law enforcement officers or to act as an agent provocateur.

Several factors distinguish the informant from the cooperating defendant. First, the informant’s interaction with the authorities generally occurs before the arrest of a suspect. The cooperating defendant only becomes a cooperator after the police make an arrest and criminal charges are lodged against the accused. Second, informants are generally recruited by and report to law enforcement officers. The cooperating defendant and his or her attorney seek to trade information — and possibly testimony — to prosecutors, not the police. Third, the informant may or may not be a participant in the criminal activity at issue. The cooperating defendant is a participant in the criminal activity charged. The cooperating defendant generally begins to cooperate after he or she has been charged or is at least about to be charged with one or more crimes. Finally, the rewards available to an informant may include monetary compensation or other less tangible benefits flowing from a onetime or a continuing relationship with one or more law enforcement officers or agencies. The cooperating defendant does not seek money. Instead, the cooperator has a single focus — winning a reward of immunity or leniency in the criminal prosecution in which he or she is a defendant.

In this case, the trial court’s order required the prosecution to disclose the identity of the cooperating codefendants and the statements that they had made. The codefendants that had decided to cooperate with the prosecution were not confidential informants. Accordingly, the privilege upon which the State relies is simply inapplicable.

2. Agreements for Confidentiality

The State also argues that the trial court’s order departs from the essential requirements of the law because it required the prosecution to disclose information that it had obtained under confidentiality agreements. We assume, for purposes of this discussion, that the State obtained the statements in question from the cooperating defendants under a promise of some type of confidentiality. Nevertheless, the State’s promise to hold in confidence information that it must disclose under the discovery rules is not enforceable against the defendants who have elected to participate in reciprocal discovery. The State cannot avoid its discovery obligations under rule 3.220 simply by giving its interlocutors a promise of confidentiality. Were it otherwise, the State could shield almost any information from discovery by making a promise of confidentiality to the person providing the information. Unsurprisingly, the State does not cite any authority in support of this novel proposition.

3. Statements Made in another Case

The State also faults the trial court for requiring the disclosure of the written transcript of the debriefing of Mr. X on the ground that he is a defendant in a case other than the underlying prosecution. We reject this argument. The trial court specifically found that Mr. X was a witness with information relevant to the underlying prosecution. Accordingly, the State was required to disclose the written transcript of Mr. X’s debriefing under rule 3.220(b)(1)(B).

4. No Intention to Call the Witnesses

Finally, the State argues that it should not be required to disclose the identity of the cooperating defendants and to provide their statements because it does not know whether it will call them as witnesses at trial. Considering the complex nature of the crimes charged, the number of defendants in the underlying prosecution, and the existence of extensive wiretap evidence, it seems unlikely that the prosecution would go to the trouble of debriefing several cooperating defendants, none of whom it will call as witnesses at trial. However, for purposes of this discussion, we assume that the State will not call any of the cooperators as witnesses at trial.

The State does not cite any authority in support of the proposition that its discovery obligation is limited to witnesses and evidentiary materials that it intends to present at trial. Under rule 3.220, the parties’ reciprocal discovery obligations are not so limited. Indeed, this court recently agreed with the State’s argument that the defense’s obligation to make reciprocal discovery extended to an expert witness’s report even though the defense did not intend to call the expert as a witness at trial. Kidder v. State, 117 So.3d 1166, 1170-71 (Fla. 2d DCA 2013). The principle that we followed at the State’s urging in Kidder applies no less to the State’s reciprocal discovery obligation in this case.

G. Additional Considerations

As a caution, we note that our analysis of the issues in this case focuses on the prosecution’s obligation to make reciprocal discovery under rule 3.220. Of course, we recognize that the State may have additional obligations to provide information to the defense arising from other authorities. These additional obligations include, but are not necessarily limited to, (1) the State’s obligation to disclose evidence favorable to the defendant upon request, Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and (2) the related obligation to disclose material evidence adversely affecting the credibility of a witness, Giglio v. United States, 405 U.S. 150, 153-54, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972).

VI. CONCLUSION

We note that the liberal nature of Florida’s criminal discovery rules drives the result that we reach here. As the Florida Supreme Court has said:

Because full and fair discovery is essential to these important goals, we have repeatedly emphasized not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context. This Court has explained that the rules of discovery are intended to avoid surprise and “trial by ‘ambush.’ ” In Binger [v. King Pest Control, 401 So.2d 1310, 1313 (Fla.1981) ], we emphasized that the “search for truth and justice can be accomplished only when all relevant facts are before the judicial tribunal. Those relevant facts should be the determining factor rather than gamesmanship, surprise, or superior trial tactics.”
Of course, the policy of avoiding trial by ambush or surprise has even greater application in the criminal context, where the stakes are much higher and the obligation of the State to see that justice is done is much greater than that of the private litigants in a civil dispute.

Scipio v. State, 928 So.2d 1138, 1144-45 (Fla.2006) (citations omitted). See also Michael E. Allen, Florida Criminal Procedure § 15:5 (2013) (“Florida provides liberal discovery rights in criminal prosecutions.”). In addition, regardless of formal discovery obligations, some prosecutors in Florida and elsewhere adhere to an “open-file” policy. However, the information that the trial court properly ordered the prosecution to disclose to the defendants in this case would very likely not be subject to disclosure in federal jurisdictions or in states having less liberal criminal discovery rules than Florida. See, e.g., United States v. Acosta, 357 F.Supp.2d 1228, 1241-45 (D.Nev.2005) (discussing the extent of the government’s obligation to provide similar information under Brady and Giglio); State v. Eighth Jud. Dist. Ct. of the State of Nev., in and for the Cnty. of Clark, No. 62464, 2013 WL 324283, at *2 (Nev. Jan. 25, 2013) (unpublished order) (ruling that the prosecution was not required under NRS 174.235(l)(a) or other statute or rule to disclose to the defense a summary of an accomplice witness’s unrecorded oral proffer made during plea negotiations).

One might make an argument in favor of a discovery regime under which the prosecution would have a privilege not to disclose the contents of proffer statements made by cooperating defendants under a promise of confidentiality, subject to exceptions for Brady and Giglio material. Florida law does not currently recognize a privilege of this sort. We decline the State’s invitation to write such a privilege into rule 3.220.

For all of the reasons set forth above, we grant the petition in part and deny it in part. We quash the trial court’s order to the limited extent that it would require the prosecution to disclose unrecorded oral statements made by defendants in cases other than case number 10-CF-009043, the underlying prosecution. In all other respects, we deny the petition.

Granted in part; denied in part.

NORTHCUTT and VILLANTI, JJ., Concur.

      . Based on our limited record, we are uncertain about the exact number of the defendants in the underlying prosecution. Information in the record suggests that at least one of the defendants has died during the pendency of the prosecution.

      . We have been unable to determine whether the three persons named in case numbers 10-CF-009032 and 10-CF-014110 are the “code-fendants” who are the subject of the parties’ controversy, or whether there are other code-fendants whose identities the State is attempting to protect that it definitely does not plan on calling as witnesses at trial.

      . For more extensive discussions of how cooperating defendants are recruited, debriefed, and rewarded, see John Gleeson, Supervising Criminal Investigations: The Proper Scope of the Supervisory Power of Federal Judges, 5 J.L. & Pol'y 423, 447-55 (1997); Caren Myers Morrison, Privacy, Accountability, and the Cooperating Defendant: Towards a New Role for Internet Access to Court Records, 62 Vand. L. Rev. 921, 931-33 (2009).

      . For discussion of the distinctions between informants and cooperating defendants, see Morrison, 62 Vand. L. Rev. at 922 n. 4; Michael L. Rich, Brass Rings and Red-Headed Stepchildren: Protecting Active Criminal Informants, 61 Am. U. L. Rev. 1433, 1439 n. 26 (2012); Rowland, 50 S.C. L. Rev. at 679. In addition, the "Standards on Prosecutorial Investigations,” adopted by the American Bar Association in 2008, recognize a distinction between confidential informants ("Standard 2.4 Use of Confidential Informants”) and cooperating individuals ("Standard 2.5 Cooperation Agreements and Cooperating Individuals and Organizational Witnesses”). Available at http://www.americanbar.org/ publications/criminal_justice_section_archive/ crimjust_standards_pinvestigate.html (last visited Apr. 10, 2014).

      . We recognize that some cooperating defendants agree to assist law enforcement officers in scenarios intended to catch other offenders. However, the purpose of this type of cooperation is to help the authorities catch others in the act of committing new crimes, not to assist in the prosecution of defendants already charged along with the cooperator. Under these circumstances, such a person is acting as an informant and not as a cooperating defendant in the sense used here.

        . See Brian P. Fox, An Argument against Open-File Discovery in Criminal Cases, 89 Notre Dame L. Rev. 425, 429 (2013) ("The central premise of open-file discovery is that everything the prosecution knows should be revealed to the defendant. Nothing is held back — if the prosecution has a piece of evidence, the defense has access to that same piece.”).

      . Presumably, the prosecution would forfeit the hypothetical privilege at some point if it intended to call the cooperator as a witness at trial. The rationale for confidentiality vanishes if the cooperating defendant will testify.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Aaron FOLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1910.
    District Court of Appeal of Florida, First District.
    May 27, 2014.
    Rehearing Denied July 16, 2014.
    Aaron Foley, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WOLF, PADOVANO, and RAY, JJ., concur.


author: WELLS, Judge.

text:
    Pavel LARA, Appellant, v. Zulema PERICICH-LARA f/k/a Zulema Lara, Appellee.
    No. 13-2359.
    District Court of Appeal of Florida, Third District.
    May 28, 2014.
    Opinion filed May 28, 2014.
    Juan Gabriel Miguel, for appellant.
    Orshan Law Group, Robert D. Orshan, Eliot R. Weitzman and Steven Paul Spann, for appellee.
    Before WELLS, LAGOA and LOGUE, JJ.
   WELLS, Judge.

We affirm the two orders on appeal without prejudice to the filing of a supplemental petition for modification of the order dated November 27, 2012 modifying the parties’ final judgment of dissolution of marriage.

      . The Order Denying Respondent’s Motion for Reconsideration and to Vacate Order and the final Order Closing Post Judgment.


text:
    James R. SHOEMAKER, D.O., et al., Appellant/Cross-Appellee, v. Sonia SLIGER, etc., et al., Appellee/Cross-Appellant.
    No. 5D12-2485.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    Rehearing and Rehearing En Banc Denied July 18, 2014.
    Dinah S. Stein, and Jedidiah Vander Klok, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, and Jim Smith and Kevin Bledsoe, of Smith, Schoder & Bledsoe, LLP, Daytona Beach, and Mark Hicks, Jedidiah Vander Klok, and Dinah Stein, of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellant/Cross-Appellant.
    David J. Sales, of David J. Sales, P.A., Jupiter, and Stephen J. Knox, of Morgan and Morgan, P.A., Orlando for Appel-lee/Cross-Appellant.
   PER CURIAM.

This court previously rendered a per curiam opinion affirming as to all issues presented in this appeal.' Two of the issues raised in the cross-appeal filed by Sonia Sliger, as Personal Representative of the Estate of Stephen Sliger, were whether the statutory cap on wrongful death non-economic damages found in section 766.118, Florida Statutes (2007), is unconstitutional and whether the trial court erred in reducing the award of damages to the statutory cap required by that statute. When this court rendered its per curiam opinion, the Florida Supreme Court had not yet rendered its decision in Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), wherein the court held that the statutory cap on wrongful death non-economic damages provided in section 766.118 is unconstitutional because it violates the Equal Protection Clause of the Florida Constitution. After McCall was rendered, Sliger filed a motion to recall the mandate previously issued by this court. This court granted that motion so we could reconsider this particular issue in light of the decision in McCall.

Pursuant to McCall, we withdraw our previous opinion and substitute this opinion in its place, and we reverse that part of the judgment under review that reduces the award of -wrongful death non-economic damages to Sliger pursuant to section 766.118. We remand this case to the trial court to enter an amended judgment in accordance with the jury verdict without any reduction under section 766.118. We affirm as to all other issues raised by the parties.

AFFIRMED in part; REVERSED in part; REMANDED.

TORPY, C.J., SAWAYA and COHEN, JJ., concur.

      . Art. I, § 2, Fla. Const.


text:
    Willie WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-4301.
    District Court of Appeal of Florida, Fifth District.
    May 30, 2014.
    Willie Walker, Live Oak, pro se.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See McCray v. State, 699 So.2d 1366, 1368 (Fla.1997) (doctrine of laches is properly applied to habeas corpus petition when delay in bringing claim for collateral relief is unreasonable and when, from the face of the petition, it is obvious that State has been manifestly prejudiced).

PALMER, EVANDER and BERGER, JJ., concur.


author: WOLF, J.

text:
    Maranda Joy MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-1911.
    District Court of Appeal of Florida, First District.
    June 3, 2014.
    Rehearing Denied July 17, 2014.
    Nancy A. Daniels, Public Defender, and M.J. Lord, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Appellant challenges her multiple convictions and sentences stemming from a home invasion and murder. Upon concession by the State, we find that her dual convictions for conspiracy based on a single agreement to commit criminal acts violates the prohibition against double jeopardy. See Beard v. State, 69 So.3d 366, 367 (Fla. 5th DCA 2011). Therefore, we reverse and remand for the trial court to vacate one of the conspiracy convictions.

We affirm on all other issues. However, we write to address appellant’s argument that the trial court erred in denying her motion to suppress statements she made to police after she allegedly told officers, “I want to get a good lawyer.” The officers testified that they never heard appellant request an attorney. The trial court reviewed the video recording of the police interview and found appellant’s statement was not clear. The first time the court listened to the video, it did not hear appellant make a statement about a lawyer. After listening to the clip two more times, the court “finally was able to discern where the word ‘lawyer’ seemed to be what was being said.” However, the court stated, “I’m not sure that anyone not being told ahead of time, this is what you’re listening for, would have any indication that that’s what was being said.” Further, the court found the officers’ testimony that they did not hear the request was credible. Thus, the court concluded appellant did not make a clear and unambiguous request for counsel and denied her motion to suppress.

“ ‘The trial court’s ruling on a motion to suppress is a mixed question of law and fact.’ ” Panter v. State, 8 So.3d 1262, 1265 (Fla. 1st DCA 2009) (quoting Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006)). “We review the trial court’s ruling denying a motion to suppress to determine whether competent, substantial evidence supports the factual findings.” Id. (citation omitted). “We must view the evidence and all reasonable deductions and inferences in a manner most favorable to sustaining the ruling.” Id. (citation omitted). “On a motion to suppress, the trial judge’s role is to weigh the credibility of the witnesses and resolve the evidentiary conflicts.” Pavon v. State, 12 So.3d 287, 287 (Fla. Sd DCA 2009) (citation omitted). In order to invoke the right to counsel, the suspect “must articulate his desire to have counsel present sufficiently clearly that a reasonable police officer in the circumstances would understand the statement to be a request for an attorney.” Davis v. United States, 512 U.S. 452, 459, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994) (citations omitted).

This court reviewed the video, and we find it supports the trial court’s factual finding that appellant’s statement was not clear. We also note that the relevant portion of the video was twice transcribed in the record, and in neither instance did the court reporter transcribe appellant as requesting an attorney. Further, the trial court’s finding that the officers’ testimony was credible is within the discretion of the court. Therefore, we affirm. As such, it is unnecessary for this court to consider the trial court’s alternate finding that even if the officers had heard appellant’s statement, they were not required to stop questioning, because her statement was equivocal. For the reasons discussed above, we reverse and remand for the trial court to vacate one of the conspiracy convictions, and we affirm on all other issues.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

LEWIS, C.J., and MAKAR, J., concur.


text:
    Dennis Michael CREAMER, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-705.
    District Court of Appeal of Florida, Fifth District.
    June 3, 2014.
    Rehearing Denied July 18, 2014.
    Dennis M. Creamer, Mayo, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2012).

ORFINGER, EVANDER and BERGER, JJ., concur.


text:
    Terry L. COLLINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-1694.
    District Court of Appeal of Florida, First District.
    June 11, 2014.
    Rehearing Denied July 18, 2014.
    Terry L. Collins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Kaulman Reese VINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-2290.
    District Court of Appeal of Florida, First District.
    June 12, 2014.
    Rehearing Denied July 23, 2014.
    Kaulman Reese Vines, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R. App. P. 9.141(d)(5).

ROWE, RAY, and SWANSON, JJ., concur.


text:
    Robert MITCHELL, Appellant, v. Cynthia Y. MITCHELL, Appellee.
    No. 1D13-4197.
    District Court of Appeal of Florida, First District.
    June 18, 2014.
    Rehearing Denied July 21, 2014.

      Rhonda S. Clyatt, Panama City, for Appellant.
    Graham Clarke, Panama City, for Ap-pellee.
   PER CURIAM.

Robert Mitchell, the former husband, appeals the final judgment of dissolution of marriage that dissolved the union between him and Cynthia Y. Mitchell, the former wife. Specifically, Mr. Mitchell challenges the equitable distribution, the alimony award in favor of Mrs. Mitchell, and the requirement that he pay a portion of Mrs. Mitchell’s attorney’s fees. We find no error in either the equitable distribution or the alimony award and affirm as to each without further comment. As explained below, however, we find merit in Mr. Mitchell’s claim of error as to the attorney’s fee award, and reverse and remand for further proceedings.

Appellate courts apply the abuse of discretion standard to review a lower court’s award of attorney’s fees. Shelly L. Hall, M.D., P.A. v. White, 97 So.3d 907, 909 (Fla. 1st DCA 2012). A court’s award of attorney’s fees is controlled by section 61.16, Florida Statutes (2013), which provides:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings and appeals.

§ 61.16(1). Furthermore, in Norman v. Norman, 939 So.2d 240, 241-42 (Fla. 1st DCA 2006), we held that a trial court reversibly errs when it awards attorney’s fees without making the requisite findings as to the proper amount, as required by Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). “The lack of findings constitutes reversible error, even if there is competent, substantial evidence to support the award.” Id. at 242 (quoting Hamlin v. Hamlin, 722 So.2d 851, 852 (Fla. 1st DCA 1998)); see also Ard v. Ard, 765 So.2d 106, 107 (Fla. 1st DCA 2000) (remand of attorney’s fee award required where the trial court made no findings as to the attorney’s hours expended, hourly rate, or reasonableness of the fee). Significantly, “[a] dissolution order directing a party to pay the other party’s fees and costs, which recites simply that the total amounts ‘are reasonable time spent and hourly rates,’ is insufficient under Rowe.” Id.

Here, the final judgment does not make specific findings as to the number of hours expended by the former wife’s attorney, or whether those hours are reasonable. These findings are required under Rowe, 472 So.2d at 1151-52. Rather, the final judgment simply recites that “the hours and rate per hour on the Wife’s ‘Amended Affidavit of Attorney’s Fees and Costs’ are reasonable.” Such generalized findings are inadequate, and reversal and remand are in order to allow the trial court to make the requisite findings. See Norman, 939 So.2d at 242; see also Ard, 765 So.2d at 107.

Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

ROBERTS, SWANSON, and OSTERHAUS, JJ., concur.


author: BENTON, J. WETHERELL, J.,

text:
    STATE of Florida, Appellant/Cross-Appellee, v. Jermaine Franklin DAVIS, Appellee/Cross-Appellant.
    Nos. 1D13-0570, 1D13-0907.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied July 25, 2014.

      Pamela Jo Bondi, Attorney General, Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, and Katrina Harden, Assistant State Attorney, Gaines-ville, for Appellant/Cross-Appellee.
    Nancy A. Daniels, Public Defender, A. Victoria Wiggins, Assistant Public Defender, Tallahassee, and Rachael J. Morris, Assistant Public Defender, Gainesville, for Appellee/Cross-Appellant.
   BENTON, J.

The state appeals a downward departure sentence — eighteen months in prison followed by eight years’ probation as a sex offender — imposed following Jermaine Franklin Davis’s convictions for using a computer service to solicit a person believed to be a thirteen-year-old girl to engage in unlawful sexual conduct, for thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a child, and for unlawful use of a two-way communications device. See §§ 847.0135(3)(a), (4)(a); 934.215, Fla. Stat. (2012).

On the main appeal, we affirm the downward departure sentencing for what was conceded to be an isolated incident. The trial court imposed a sentence below the statutory guidelines, basing the downward departure sentence on two statutory subsections: 1) “The victim was an initiator, willing participant, aggressor, or provoker of the incident” and 2) “The offense was committed in an unsophisticated manner and was an isolated incident for which the defendant has shown remorse.” § 921.0026(2)©, (j), Fla. Stat. (2012).

As the state contends, we recently ruled out the “victim as initiator” ground for downward departure in a case in which the defendant was convicted after responding to a Craigslist advertisement purportedly placed by a father seeking “an older, patient experienced guy” to show his 14-year-old daughter “how it should really be” after she had a “bad first experience.” State v. Murphy, 124 So.3d 323, 327 (Fla. 1st DCA 2013). Unlike the present case, however, the fictitious father in Murphy, not the fictitious victim, was the “initiator.” In any event, the rule is that a downward departure should be upheld if any ground on which the trial court relies is valid. See State v. Randall, 746 So.2d 550, 552 (Fla. 5th DCA 1999) (“In addition, even if some of the court’s stated reasons are insufficient, only one valid reason is necessary to sustain a departure.”). “When multiple reasons exist to support the mitigation, the mitigation shall be upheld when at least one circumstance or factor justifies the mitigation regardless of the presence of other circumstances or factors found not to justify mitigation.” § 921.002(3), Fla. Stat. (2012).

Under subsection (j), the trial court’s alternative basis for downward departure, the state conceded that the episode was an isolated incident, and the dissenting opinion concedes that competent substantial evidence supports the trial court’s finding of fact that Mr. Davis’s remorse was genuine. Competent and substantial evidence also supports the trial court’s finding that Mr. Davis, who has lived with his mother his entire life, did not commit these crimes in a “sophisticated” fashion. The “several distinctive and deliberate steps,” see State v. Salgado, 948 So.2d 12, 17 (Fla. 3d DCA 2006), that he took in committing the offense were for the most part along a path government agents carefully laid out for him. The trial judge was entitled to conclude that Mr. Davis was “cooler online” than in real life. For Mr. Davis, it all began when he responded to an online advertisement, purportedly posted by a 32-year-old woman on an adults-only dating website. While the advertisement stated that the 32-year-old’s “little sister” was in town and that they were “looking for a friend to have fun with tonight,” the age of the “little sister” was not stated.

Seeing the ad, Mr. Davis invited the supposed 82-year-old out. But the detective answered (also online) that she (posing as the 32-year old who had posted the ad) and her sister were not “looking to hang out and have a relationship.” Thus began a dialogue that lasted approximately two hours, first online (“instant messenger”), then on the telephone. The detective posing as the 32-year-old repeatedly asked him what he was going to do when he came over and what he wanted to do to her sister. She told him the little sister was a youngster who wanted to learn new things, and directed him to bring condoms with him when he came to see them at the address she gave him. His conversations directly with the purported thirteen-year-old were limited to a few (maybe two) awkward minutes on the telephone, and to about twenty lines on “instant messenger.”

Unlike the defendant in State v. Fureman, — So.3d -, 2014 WL 656756, 39 Fla. L. Weekly D408 (Fla. 5th DCA Feb. 21, 2014), Mr. Davis did not respond to an advertisement entitled “‘Parenting Help Wanted,’ ” understanding that the posting offered sex with a child. Unlike the defendant in State v. Subido, 925 So.2d 1052, 1058 (Fla. 5th DCA 2006), relied on by the Fureman court, Mr. Davis did not hatch a plan on his own, then creep “ ‘in a stealth-like manner’” into the sleeping victim’s bed. There is no basis on which to disturb the trial court’s downward departure.

On cross-appeal, Mr. Davis argues that he was entrapped as a matter of law. He challenges the trial court’s denial of his motions to dismiss, which maintained that, on both objective and subjective theories of entrapment, the undercover law enforcement officers had entrapped him. We approve the lower court’s denial of these motions and affirm the convictions.

As regards the “objective entrapment” prong of appellant’s argument, we reject his characterization of the pleadings and the evidence. Although appellant was originally lured by the prospect of a sexual liaison with a 32-year-old woman, the evidence cannot fairly be read as showing that he was promised the 32-year-old’s sexual favors as an inducement to interact sexually with the child.

As regards the “subjective entrapment” prong, the issue boils down to whether the appellant was predisposed to commit the offenses when government agents originally broached the subject. Our recent decision in Gennette v. State, 124 So.3d 273 (Fla. 1st DCA 2013) is not controlling because the state stipulated there that Gennette was not predisposed to commit the offenses charged. Id. at 278.

In the present case, the jury could have found — the evidence was uncontroverted— that Mr. Davis told the undercover officer: “And actually, it’s kind of been on my mind to do something like that.” Arguably ambiguous — the government agent had raised the possibility of a ménage á trois — the statement was nevertheless uttered in the context of engaging in sexual activity with the fictitious thirteen-year-old child, and sufficiently raised a factual question as to Mr. Davis’s predisposition to engage sexually with children to create a question for the jury. See Munoz v. State, 629 So.2d 90, 100 (Fla.1993) (holding that, when there exists a factual question on predisposition, the case should go to the jury).

Mr. Davis also argues on cross-appeal that his dual convictions under subsections 847.0135(3)(a) and (4)(a) violate constitutional prohibitions against double jeopardy. On this “degree variant” issue, we are bound by our prior decision in Elsberry v. State, 130 So.3d 798, 798 (Fla. 1st DCA 2014), which extended the holding in State v. Murphy, 124 So.3d at 380, to the specific statutory subsections at issue here. See also Cantrell v. State, 132 So.3d 931, 933 (Fla. 1st DCA 2014) (citing Elsberry) and Griffis v. State, 133 So.3d 653, 654 (Fla. 1st DCA 2014) (citing Elsberry and Cantrell). Contra Shelley v. State, 134 So.3d 1138, 1141 (Fla. 2d DCA 2014) (“Thus, the soliciting offense does not contain an element that is not found in the traveling offense. As a result, dual convictions for soliciting and traveling in the course of one criminal transaction or episode violate the prohibition against double jeopardy.” (citations omitted)); Hartley v. State, 129 So.3d 486, 491 (Fla. 4th DCA 2014) (same); Pinder v. State, 128 So.3d 141, 142-44 (Fla. 5th DCA 2013) (same). We certify conflict with Shelley, Hartley, and Pinder.

Affirmed.

MARSTILLER, J., concurs in result; WETHERELL, J., concurs in part and dissents in part with opinion.

WETHERELL, J.,

concurring in part and dissenting in part.

I concur in the decision to affirm Davis’ conviction, but I respectfully dissent from the decision to affirm Davis’ downward departure sentence under section 921.0026(2)©, Florida Statutes (2011). Accordingly, on the State’s appeal, I would reverse and remand for resentencing in accordance with the Criminal Punishment Code scoresheet, which shows a lowest permissible prison sentence of 44.7 months.

For a downward departure to be valid under section 921.0026(2)©, the trial court must find based upon the preponderance of the evidence that “1) the crime is committed in an unsophisticated manner, 2) it was an isolated incident, and 3) the defendant has shown remorse.” Murphy, 124 So.3d at 331. The trial court’s finding as to each element must be supported by competent substantial evidence. Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). Here, it is undisputed that Davis’ crime was an isolated incident and there is competent substantial evidence to support the trial court’s finding that Davis has shown remorse. Accordingly, the validity of the downward departure in this case turns on whether Davis’ crime was committed in an unsophisticated manner.

A crime is committed in an unsophisticated manner when the acts constituting the crime are “artless, simple and not refined.” Murphy, 124 So.3d at 331 (quoting State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009)). By contrast, a crime is not committed in an unsophisticated manner when it requires the defendant to take “several distinctive and deliberate steps” to commit the crime. State v. Fureman, - So.3d -, 2014 WL 656756, 39 Fla. L. Weekly D408 (Fla. 5th DCA Feb. 21, 2014) (quoting State v. Salgado, 948 So.2d 12,18 (Fla. 3d DCA 2006)).

Here, the record reflects that Davis undertook a series of distinctive and deliberate steps to commit the charged offense: he engaged in several hours of conversation with an undercover officer posing as a 13-year-old girl and her older sister, both online and on the phone; he evinced a consciousness of guilt and a desire to conceal the contents of his communications about what he intended to do with the minor by suggesting that they talk in person or on the phone rather than in the online chat; he made unsolicited comments about his sexual prowess and the things that he could “teach” the minor; he drove to Walmart to purchase condoms; and then he drove across town in order to have sex with a minor. These acts, taken together, reflect a level of sophistication that, in my view, precludes a downward departure under section 921.0026(2)(j).

The trial court found that Davis committed the crimes in an unsophisticated manner because he was “naive,” “easily led,” and guided throughout the process by the undercover officers, but the record does not support these findings. Rather, the record reflects that Davis, not the officers, prompted the discussion of sexual matters; that Davis, not the officers, suggested talking in person and on the phone rather than in the online chat; and that, as the trial court found, Davis “knew his conduct wasn’t right” and that he had “every opportunity ... to not follow through” with his actions. Additionally, the trial court erred by focusing more on the actions of the undercover officers than on Davis’ actions. See Fureman, — So.3d -, 39 Fla. L. Weekly D408 (“Here, although the lower court found that Fureman’s acts were unsophisticated because the police initiated the series of events by posting the advertisement, this rationale fails to account for [Fureman]’s actions in completing the crime.”).

I recognize that, in Murphy, this court affirmed a downward departure sentence for a defendant who, like Davis, arranged to have sex with a minor after responding to an online ad posted as part of an undercover sting operation. The defendant in Murphy used his mobile phone to answer the online ad and communicate with the undercover officers and this court affirmed the trial court’s finding that the crime was committed in an unsophisticated manner because the communication- tools used by the defendant “are so ubiquitous today as to no longer require any level of sophistication to use them.” See 124 So.3d at 332. I do not read Murphy to hold that the use of a mobile phone (or any other “ubiquitous” technological device) is sufficient, standing alone, to establish that the crime was committed in an unsophisticated manner; rather, as I read Murphy, the court simply held that notwithstanding the defendant’s use of his mobile phone, there was evidence to support the trial court’s determination that the crime was committed in an unsophisticated manner. Here, because in my view the evidence does not support the trial court’s finding that Davis’ crimes were committed in an unsophisticated manner, Murphy is distinguishable.

In sum, because the trial court’s finding that Davis’ crimes were committed in an unsophisticated manner is not supported by competent substantial evidence, the trial court erred in imposing a downward departure sentence under section 921.0026(2)(j). Accordingly, we should reverse Davis’ sentence and remand for re-sentencing in accordance with the Criminal Punishment Code scoresheet.

      . On this issue, the trial judge explained his reasoning as follows:
      It would seem improper that the State is able to argue, well, there is a victim in the case. It’s an imaginary victim; it’s the State posing as an individual. But there is a sufficient person on the other end to qualify for the offense of traveling to meet a minor, when, in fact, there is no minor, but the Defendant believed there was; where the State has, in fact, been all of those things in the case, and the Court not be able to consider that as a proper mitigator in the case.
      This case — if that downward departure, the purpose for that is to have any meaning whatsoever, in this Court’s opinion, then this would certainly be the case. And that is, to consider the activity of the individual who is — ends up being the victim in the case and their responsibility for the ultimate result, where they are indeed victims, but still, nonetheless, primarily responsible for the act.

      . I get home, I kiss my mom/And she fixes me a snack/I head down to my basement bedroom/And fire up my Mac

      Online I’m out in Hollywood/I’m 6'5 and I look damn good/Even on a slow day, I can have a three way/Chat with two women at one time

      I’m so much cooler online/Yeah I'm cooler online
      Brad Paisley, Online (Arista Nashville 2007).

      . I agree with majority that section 921.0026(2)(f) ⅛ not a valid basis for a downward departure under the circumstances of this case. See State v. Murphy, 124 So.3d 323, 331 (Fla. 1st DCA 2013) (holding that section 921.0026(2X0 is not applicable when the victim alleged to be the “initiator, willing participant, aggressor, or provoker of the incident” is actually an undercover officer).

      . The online conversation started with emails through the Fling.com website and continued on the Yahoo instant messaging service.

      . For example, after Davis described the types of massages that he could perform — the "a,” or adult, massage being "everything” and the "g" massage being "everything but boobs prmise land and butt” — the following discussion took place in the online chat between Davis and the undercover officer posing as the minor:
      [Minor]: whatchu wanna do wit me?
      [Davis]: idk deppend on wat u wana do we can chill at first and go from there
      [Minor]: oh we aint looking to chill
      [Davis]: well i dont want to say it on here u feel [m]e

      [Davis]: thats y i wanted to finish talkin to ur sis make sure everything kool
      [Davis]: thats y i call bak
      [Davis]: i kno wat yall wana do and im down just got to make sure everything legit thats all
      (all misspellings and phonetic words in original).

      . The following discussion took place on one of the calls that Davis made to the undercover officer posing as the minor’s older sister:
      [Older sister]: She [the minor] is wanting to learn some new things. What — do you do anything—
      [Davis]: Well, I — well, I’ve studied on women for 13 years and like I know everything, Kama Sutra, G-Spot, hot spot, best way to do oral, best way to finger. Yeah, I used to teach ladies how to have orgasms.

      [Davis]: So, like — so yeah — so I’m — I could teach her like new stuff, show you new stuff, everything.
      [Older sister]: Cool.... Well, how would you feel if I just wanted to watch you two?
      [Davis]: That’s straight
      [Older sister]: You’re good with that?
      [Davis]: Yeah.

      .The trial court did not make the Brad Paisley-inspired finding attributed to it by the majority, and even if it had, there is certainly nothing “cool” about Davis’ online persona and communications in this case. Moreover, in my view, whether Davis was " 'cooler online' than in real life” has nothing to do with whether he committed the crimes in this case in an unsophisticated manner.

      . But see Fureman, - So.3d at -, 39 Fla. L. Weekly D408, at n. 2. (disagreeing with Murphy “to the extent it implies that, standing alone, use of a common communication tool in the commission of a crime is competent and substantial evidence that the crime was committed in an unsophisticated matter” and expressing the view that "using a computer to commit a crime evinces a level of sophistication that would not support a downward departure sentence”).


text:
    HERNANDO COUNTY SHERIFF’S OFFICE/North American Risk Services, Appellants, v. Stavros SIKALOS, Jr., Appellee.
    No. 1D13-4866.
    District Court of Appeal of Florida, First District.
    June 25, 2014.
    Rehearing Denied July 23, 2014.

      James N. McConnaughhay of McCon-naughhay, Duffy, Coonrod, Pope & Weaver, P.A., Tallahassee, for Appellants.
    Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Appel-lee.
   PER CURIAM.

In this workers’ compensation case, the Employer/Servieing Agent (E/SA) appeals an order of the Judge of Compensation Claims (JCC) denying an offset asserted by the E/SA against Claimant’s workers’ compensation disability benefits. For the following reasons, we affirm the order on appeal.

Claimant, hired as a Deputy Sheriff in April 2003, suffered a compensable injury on December 3, 2011. He is receiving temporary total disability benefits under section 440.15(2), Florida Statutes (2011). His average weekly wage is $851.27, and thus his compensation rate is $567.54 per week. See § 440.15(2)(a), Fla. Stat. On account of his injury, Claimant is also receiving $1,470.00 per month social security disability benefits, and $2,530.81 per month in-line-of-duty disability benefits from the Florida Retirement System (FRS). The total disability benefits Claimant is receiving from all of the above sources for his compensable injury is $6,441.23 monthly, or $1,497.96 per week ($6,441.23 divided by 4.3 weeks). The weekly amount exceeds his average weekly wage of $851.27 by $646.69.

Because of the overage, the E/SA began taking an offset against Claimant’s workers’ compensation disability benefits on June 28, 2013, purportedly under the authority of Escambia County Sheriffs Department v. Grice, 692 So.2d 896 (Fla.1997), in which the Florida Supreme Court held that “an injured worker, except where expressly given such a right by contract, may not receive benefits from his employer and other collateral sources which, when totaled, exceed 100% of his average weekly wage.” Grice, 692 So.2d at 898. When that occurs, the supreme court held, the employer/carrier is entitled to offset the excess by reducing the workers’ compensation disability benefits accordingly. Id. The so-called “Grice offset” is determined by totaling the disability benefits a claimant receives from all sources (including workers’ compensation), calculating a weekly total, and subtracting 100 percent of the claimant’s average weekly wage. See Miami-Dade County v. Lovett, 888 So.2d 136, 137 (Fla. 1st DCA 2004). Because the offset in the instant case exceeds the amount of workers’ compensation disability benefits the E/SA otherwise would pay, the E/SA paid Claimant the statutory minimum amount of $20 per week. See § 440.12(2), Fla. Stat. (2012) (“Compensation for disability resulting from injuries which occur after December 31, 1974, shall not be less than $20 per week.”). When Claimant challenged the offset, the JCC by summary final order excluded Claimant’s in-line-of-duty disability benefits from the offset calculation because Claimant contributes to the pension fund supplying those benefits. Claimant’s pension plan, the FRS, from which the in-line-of-duty disability benefits are paid, was fully employer funded until July 7, 2011, when, due to statutory changes, FRS members began contributing three percent (3%) of their salaries to fund the plan. See generally Scott v. Williams, 107 So.3d 379 (Fla.2013).

The JCC relied on City of Hollywood v. Lombardi, 770 So.2d 1196 (Fla.2000), and we affirm on the same authority. In Lombardi, the Florida Supreme Court wrote,

[W]e hold that where the ‘pension plan is funded at least in part with employees’ contributions, decreasing workers’ compensation benefits on account of pension benefits runs afoul of section 440.21, Florida Statutes (1993).’ Thus, once it is determined that the pension plan is funded with employees’ contributions, workers’ compensation benefits are primary and it is the pension fund that is entitled to the benefit of the offset.... Our holding should not be read to mean that in all other cases the workers’ compensation fund automatically receives the benefit of the offset; rather, we hold only that where the fund is employee-contributory, it would violate section 440.21 for workers’ compensation benefits to be reduced.

770 So.2d at 1205 (quoting City of Hollywood v. Lombardi, 738 So.2d 491, 498 (Fla. 1st DCA 1999)). Section 440.21, now as in 1993, invalidates “[a]ny agreement by an employee to pay any portion of premium paid by her or his employer to a carrier or to contribute to a benefit fund or department maintained by the employer for the purpose of providing compensation or medical services and supplies as required by this chapter.” Under the supreme court’s reasoning, offsetting workers’ compensation benefits to account for collateral benefits a claimant receives from an employee-contributory pension plan is tantamount to requiring the claimant “to contribute to a benefit fund ... maintained by the employer for the purpose of providing” workers’ compensation benefits — a circumstance prohibited by section 440.21.

The E/SA argues section 440.21 does not apply to the situation here because the inline-of-duty disability benefit fund — the FRS — is not maintained by the Employer (the county), but by the State. We decline to read such a distinction into the statute, however, because doing so would create disparate results for claimants employed by state government entities and claimants employed by non-state government entities participating in the FRS. See §§ 112.021(10), (11); 112.051, Fla. Stat. (2012).

AFFIRMED.

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Earl MACK, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3901.
    District Court of Appeal of Florida, Second District.
    June 25, 2014.
    Howard L. Dimmig, II, Public Defender, and Judith Ellis, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Walker v. State, 137 So.3d 594 (Fla. 2d DCA 2014).

ALTENBERND, WALLACE, and SLEET, JJ., Concur.


author: BERGER, J.

text:
    Satish B. PATEL, Appellant, v. STATE of Florida, etc., Appellee.
    No. 5D13-1065.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2014.
    Rehearing Denied July 18, 2014.

      Matthew P. Ferry, of The Law Office of Warren W. Lindsey, P.A., Winter Park, and William R. Ponall, of Snure & Ponall, P.A., Winter Park, for Appellant.
    Jeffrey L. Ashton, State Attorney, and Joseph A. Cocchiarella, Assistant State Attorney, Orlando, for Appellee.
   BERGER, J.

Satish B. Patel (“Patel”) appeals the trial court’s non-final order finding probable cause to support the State’s continued seizure of $142,815.27 in substitute assets pursuant to the Florida Contraband Forfeiture Act (“FCFA”). We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(ii) (permitting review of non-final orders that determine “the right to immediate possession of property”); Munoz v. City of Coral Gables, 695 So.2d 1283, 1284 (Fla. 3d DCA 1997). Patel argues that the evidence presented by the State at the adversarial preliminary hearing failed to establish any link between the alleged criminal activity and the subject bank accounts as required by section 932.703(2)(c), Florida Statutes (2013), and, as a result, that the trial court erred when it found probable cause to continue the seizure of his assets. The State concedes this point, but argues that, independent of the actual use of the subject property, section 932.703(5)(a), permits the seizure of Patel’s accounts as “substitute assets” for the illegal cash proceeds acquired, but not located or seized. Because we hold that section 932.703(5) does not authorize the seizure of substitute assets prior to a forfeiture hearing, we reverse.

The State filed a petition under the FCFA, seeking forfeiture of certain assets owned by Satish Patel, Sonya Patel, Jigger Patel, and Baldevbhai KN, Inc./Apopka Discount Drugs. An amended petition was later filed, which sought forfeiture of a total of $139,297.01 contained in four separate bank accounts, $4,275.12 in cash, and a 2009 Honda Accord. The petition alleged that the case was being brought as an “in rem” civil forfeiture pursuant to the FCFA because of drug violations, and that some of the property had been seized as:

A substitute asset for a “contraband article” because said vehicle or personal property has a value less than, or equal to, the value of money or currency that was a contraband article or proceeds of the violations above, and has been spent, transferred to other persons, or commingled with other funds, or placed beyond the jurisdiction of the court; [sic] as set out in Florida Statutes 932.708(5).

Patel asked for and received an adversarial preliminary hearing pursuant to section 932.708(2)(a), at which he challenged the seizure of the three items in which he claimed an interest: (1) an Old Florida National Bank account for Baldevbhai KN, Inc./Apopka Discount Drugs, which originally contained $57,758.75, but into which an additional $73,622.86 had been deposited since the filing of the petition, for a total of $131,381.61; (2) a Bank of America account in the name of Satish Baldevbhai Patel and Sonya S. Patel, which contained $7,158.54; and (3) $4,275.12 in cash taken from Apopka Discount Drugs Pharmacy.

At the hearing, the State offered its verified affidavit into evidence, as well as the testimony of Trooper William Cain, who had prepared the affidavit. The State established that Patel was the co-owner and only licensed pharmacist at Apopka Discount Drugs Pharmacy. It further offered evidence that from February 24, 2010 through November 14, 2011, Satish Patel and Jigger Patel, the pharmacy technician, knowingly accepted and filled 145 forged prescriptions for oxycodone and other narcotics. The prescriptions involved sixteen patients and four different doctors. The State also offered evidence that Patel and/or Apopka Discount Drugs Pharmacy received between $700 and $1,000 upon filling each prescription, which was two to three times the going rate, meaning that the pharmacy and/or Patel had made between $100,500 and $145,000 on the illegal prescriptions. Trooper Cain testified that he had seized assets less than or equal to the value of what was earned in the pharmacy, including $57,758.75 in the Old Florida National Bank account, $7,158.54 in a Bank of America account, and $4,275.12 in cash found at the pharmacy when the warrant was executed. He testified that an additional $73,622.86 had been deposited in the Bank of America account since the warrant was executed. Trooper Cain admitted that he had no evidence that the pharmacy had filled any fraudulent prescriptions since November 22, 2011, and that the Bank of America account was a joint account with Patel’s wife. He further admitted that the cash had not been seized from the pharmacy until February 12, 2013. Trooper Cain also acknowledged that Patel owns several other businesses in addition to the pharmacy, including a number of Subway stores.

The issue before us is whether the evidence presented at the adversarial preliminary hearing is sufficient to show probable cause to seize the subject bank accounts and cash. Patel argues that the evidence is insufficient because of the failure to show that the monies seized were tied to the criminal activity alleged in the complaint. The State acknowledges the lack of any nexus between the assets seized and the criminal activity alleged in the complaint, but argues that, when ill-gotten gains cannot be found, it is permitted to seize “substitute assets” under the FCFA, and that such substitute property can be detained pretrial.

To properly evaluate the parties’ arguments, it is important to note the distinction between civil and criminal forfeiture actions. A civil forfeiture is an “in rem” action brought against the property. Kern v. State, 706 So.2d 1366, 1369 (Fla. 5th DCA 1998); In re Forfeiture of Fifty Five Thousand Forty-Five Dollars in U.S. Currency, 809 So.2d 105, 106 (Fla. 2d DCA 2002). It is premised on a legal fiction that the property, not its owner, is held guilty. Rosado v. Bieluch, 827 So.2d 1115, 1117 (Fla. 4th DCA 2002); U.S. v. Ursery, 518 U.S. 267, 275, 116 S.Ct. 2135, 135 L.Ed.2d 549 (1996) (“ ‘[This] forfeiture proceeding ... is in rem. It is the property which is proceeded against, and, by resort to a legal fiction, held guilty and condemned as though it were conscious instead of inanimate and insentient.’ ” (quoting Various Items of Pers. Prop. v. U.S., 282 U.S. 577, 581, 51 S.Ct. 282, 75 L.Ed. 558 (1931))). “Neither a conviction nor an acquittal in a criminal case is determinative of the issues in the forfeiture proceeding. In fact, neither the record nor the judgment in the criminal case is admissible in the civil action seeking in rem forfeiture.” Kern, 706 So.2d at 1369. A criminal forfeiture, on the other hand, is a penalty or punishment imposed after a person has been convicted of a crime. Heather J. Garretson, Federal Criminal Forfeiture: A Royal Pain in the Assets, 18 S. Cal. Rev. L. & Soc. Just. 45, 47-48 (Fall 2008). It is an “in personam criminal remedy, targeted primarily at the defendant who committed the offense.” Id. at 48.

This case does not involve a criminal forfeiture. Instead, it was brought as an “in rem” civil forfeiture, pursuant to the FCFA, which makes it illegal to conceal or possess any contraband article, § 932.702(2), Florida Statutes (2013), or to acquire real or personal property by the use of proceeds obtained in violation of the FCFA, § 932.702(4), Florida Statutes (2013). The FCFA permits law enforcement agencies to seize any contraband article used in violation of the FCFA, and states that “[a]ll rights to, interest in, and title to contraband articles used in violation of [section] 932.702 shall immediately vest in the seizing law enforcement agency upon seizure.” § 932.703(l)(c), Fla. Stat. (2013). Personal property may be seized at the time of the violation, or subsequent to the violation, if the person entitled to notice is noticed of the right to an adversarial preliminary hearing, the purpose of which is to determine whether probable cause exists to believe that the property was used in violation of the FCFA. See § 932.703(2)(a), Fla. Stat. (2013). The statute provides:

(c) When an adversarial preliminary hearing is held, the court shall review the verified affidavit and any other supporting documents and take any testimony to determine whether there is probable cause to believe that the property was used, is being used, was attempted to be used, or was intended to be used in violation of the Florida Contraband Forfeiture Act. If probable cause is established, the court shall authorize the seizure or continued seizure of the subject contraband. A copy of the findings of the court shall be provided to any person entitled to notice.
(d) If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.

§ 932.703(2)(c) and (d), Fla. Stat. (2013). The seizing agency is not required to establish at the seizure stage that the owner knew, or should have known after a reasonable inquiry, that the property was being employed or was likely to be employed in criminal activity. Gomez v. Village of Pinecrest, 41 So.3d 180, 188 (Fla.2010). It is enough to show that the subject property was used in violation of the FCFA. Id.

At issue in this case is the meaning of section 932.703(5), which contains a “substitute assets” provision, and whether this section permits the State to pursue a civil forfeiture directly against “substitute assets” that have no nexus to the criminal offense. Section 932.703(5) provides:

(5) The court shall order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section if any of the property described in this section:
(a) Cannot be located;
(b) Has been transferred to, sold to, or deposited with, a third party;
(c) Has been placed beyond the jurisdiction of the court;
(d) Has been substantially diminished in value by any act or omission of the person in possession of the property; or
(e) Has been commingled with any property which cannot be divided without difficulty.

M'

Legislative intent is the polestar of statutory interpretation. Gomez, 41 So.3d at 185. “ ‘To discern legislative intent, a court must look first and foremost at the actual language used in the statute.’ ” Id. (quoting Larimore v. State, 2 So.3d 101, 106 (Fla.2008)). When the language in the statute is clear and unambiguous and conveys a clear and definite meaning, the statute must be given its plain and obvious meaning. Velez v. Miami-Dade Cnty. Police Dep’t, 934 So.2d 1162, 1164 (Fla.2006). Furthermore, a statute should be interpreted to give effect to every clause in it and to accord meaning and harmony to all its parts. D.M.T. v. T.M.H., 129 So.3d 320, 332 (Fla.2013). We are, however, “ ‘without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications.’ ” Velez, 934 So.2d at 1164-65 (quoting McLaughlin v. State, 721 So.2d 1170, 1172 (Fla.1998) (quoting Holly v. Auld, 450 So.2d 217, 219 (Fla.1984))).

Forfeitures are considered “harsh exactions” and are not favored in the law. Gomez, 41 So.3d at 185. As a result, the forfeiture statutes must be strictly construed against the government. Id.; DeGregorio v. Balkwill, 858 So.2d 371, 373 (Fla.2003). And, any ambiguity in the forfeiture statutes must be construed against forfeiture. DeGregorio, 853 So.2d at 373.

In Florida, forfeiture proceedings are a two-stage process. Gomez, 41 So.3d at 184. The first stage, outlined in section 932.703(2), involves the seizure of property, where, if an adversarial preliminary hearing is held, “ ‘the seizing agency is required to establish probable cause that the property subject to forfeiture was used in violation of the Forfeiture Act.’ ” Gomez, 41 So.3d at 184 (quoting Velez, 934 So.2d at 1164 (citing § 932.701(2)(f), Fla. Stat. (2002))). The second stage is the forfeiture stage, involving the actual forfeiture proceeding. Id. During the forfeiture trial, the court or jury will determine whether the subject property will be forfeited. Id.; see also §§ 932.701(2)(g) and 932.704, Fla. Stat. (2013). The various subsections of section 932.703 specifically distinguish between the two stages. Gomez, 41 So.3d at 185. For example, section 932.703(l)(a) provides:

Any contraband article, vessel, motor vehicle, aircraft, other personal property, or real property used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, may be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

(Emphasis added). Likewise, section 932.703(l)(b) sets forth:

Notwithstanding any other provision of the Florida Contraband Forfeiture Act, except the provisions of paragraph (a), contraband articles set forth in s. 932.701 (2)(a)7. used in violation of any provision of the Florida Contraband Forfeiture Act, or in, upon, or by means of which any violation of the Florida Contraband Forfeiture Act has taken or is taking place, shall be seized and shall be forfeited subject to the provisions of the Florida Contraband Forfeiture Act.

(Emphasis added). And, section 932.703(2)(d), which directs the court in the event it determines probable cause exists to believe the subject property was used in violation of the FCFA provides:

If the court determines that probable cause exists to believe that such property was used in violation of the Florida Contraband Forfeiture Act, the court shall order the property restrained by the least restrictive means to protect against disposal, waste, or continued illegal use of such property pending disposition of the forfeiture proceeding. The court may order the claimant to post a bond or other adequate security equivalent to the value of the property.

(Emphasis added). In contrast, section 932.703(5) references only the forfeiture stage, providing in pertinent part:

The court shall order the forfeiture of any other property of a claimant, excluding lienholders, up to the value of any property subject to forfeiture under this section ....

(Emphasis added).

It is a general principle of statutory construction that where the legislature includes wording in one section of a statute and not another section of the same statute, it is presumed to have been intentionally excluded. See Beach v. Great W. Bank, 692 So.2d 146, 152 (Fla.1997). Here, the plain and unambiguous language of section 932.703, leads us to conclude that subsection (5) refers only to the forfeiture stage of the proceedings and not the seizure stage. See Gomez, 41 So.3d at 186 (explaining that section 932.70S(6)(a), which requires proof that the owner knew, or should have known after reasonable inquiry, that the subject property was being employed or likely to be employed in criminal activity, clearly refers to the forfeiture stage, not the seizure stage). Accordingly, we hold that section 932.703(5) does not authorize the seizure of substitute assets prior to forfeiture; rather it is intended to be used once a forfeiture has been ordered and cannot be satisfied due to the circumstances outlined therein. See Campbell v. Racetrack Bingo, Inc., 75 So.3d 321, 324 (Fla. 1st DCA 2011) (explaining that if the sheriff had ultimately prevailed in the forfeiture proceeding, section 932.703(5) would have entitled him to forfeit other property if the subject property could no longer be located).

REVERSED.

PALMER and EVANDER, JJ., concur.

      . See §§ 932.701-.706, Fla. Stat. (2013).

      . But see Alascia v. State of Florida, Dep’t of Legal Affairs, 135 So.3d 402, 405 (Fla. 5th DCA 2014) (determining non-final order finding probable cause to support seizure of real property under FCFA and imposing lis pen-dens was not reviewable as order determining "the right to immediate possession of property,” but finding certiorari review was appropriate). Since the present case involves the seizure of U.S. currency and not the issuance of a lis pendens, we find it distinguishable.

      .Neither Sonya Patel nor Jigger Patel contested the forfeiture.

      . Satish Patel and Jigger Patel are not related.

      . Relying on a number of federal cases, the State argues that section 932.703(5) allows it to seize "innocent” assets pretrial, as a "substitute” for the contraband which can be seized under the Act. Most of the cases cited by the State, however, involve forfeitures sought under a "substitute assets” provision, after a criminal forfeiture order remained unsatisfied. See, e.g., U.S. v. Fleet, 498 F.3d 1225 (11th Cir.2007) (involving criminal forfeiture order entered for money laundering, after which government sought forfeiture under a "substitute assets” provision); U.S. v. Reed, 924 F.2d 1014 (11th Cir. 1991). (involving criminal forfeiture order entered for RICO violations, after which government sought forfeiture of substitute assets); U.S. v. Martenson, 780 F.Supp. 492 (N.D.Ill.1991) (involving entry of criminal forfeiture order, after which government sought to obtain substitute assets). A few cases involve the pretrial detention of substitute assets in criminal forfeiture proceedings. See, e.g., In re Billman, 915 F.2d 916 (4th Cir.1990) (involving RICO violations); U.S. v. Swank Corp., 797 F.Supp. 497 (E.D.Va.1992) (involving money laundering). We note, however, that these cases appear contrary to the great weight of authority, which hold that substitute assets are not subject to pretrial restraint under provisions virtually identical to those in this case.


text:
    Randy Jay HALEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-160.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See State v. Matthews, 891 So.2d 479 (Fla.2004); Young v. State, 739 So.2d 553 (Fla.1999); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Zink v. State, 951 So.2d 34 (Fla. 2d DCA 2007); Tillman v. State, 900 So.2d 633 (Fla. 2d DCA 2005); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Shaw v. State, 780 So.2d 188 (Fla. 2d DCA 2001); Curl v. State, 36 So.3d 853 (Fla. 3d DCA 2010); Dinkens v. State, 976 So.2d 660 (Fla. 1st DCA 2008); Luton v. State, 934 So.2d 7 (Fla. 3d DCA 2006); Lykins v. State, 894 So.2d 302 (Fla. 3d DCA 2005); Dennis v. State, 784 So.2d 551 (Fla. 4th DCA 2001); Thomas v. State, 778 So.2d 429 (Fla. 5th DCA 2001).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Gary Allen MIZELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-207.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See State v. Brooks, 890 So.2d 503 (Fla. 2d DCA 2005); Simmons v. State, 779 So.2d 298 (Fla. 2d DCA 1999).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Michael CLIFTON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-218.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See Lee v. State, 679 So.2d 1158 (Fla.1996); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Edwards v. State, 830 So.2d 141 (Fla. 5th DCA 2002).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    John HARJO, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-330.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Smith v. State, 82 So.3d 823 (Fla. 4th DCA 2011); Felton v. State, 919 So.2d 557 (Fla. 5th DCA 2005).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


text:
    Keith R. LAHEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-343.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
   PER CURIAM.

Affirmed. See Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Henry v. State, 933 So.2d 28 (Fla. 2d DCA 2006); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Brown v. State, 827 So.2d 1054 (Fla. 2d DCA 2002); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002); Pruitt v. State, 801 So.2d 143 (Fla. 4th DCA 2001).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


author: WALLIS, J.

text:
    Samuel FULTON, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D13-2279, 5D13-2287, 5D13-2280, 5D13-2288, 5D13-2286.
    District Court of Appeal of Florida, Fifth District.
    July 3, 2014.
    James S. Purdy, Public Defender, and Kathryn Rollison Radtke, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   WALLIS, J.

Appellant, Samuel Fulton, appeals his convictions for possession of cocaine and possession of cocaine with intent to sell. The State concedes error and acknowledges that Fulton’s convictions violate his right against double jeopardy because both crimes arose out of a single criminal episode. See Paccione v. State, 698 So.2d 252, 254 (Fla.1997). Accordingly, we vacate Appellant’s conviction and sentence for simple possession of cocaine and affirm his judgment and sentence in all other respects. See Ford v. State, 749 So.2d 570 (Fla. 5th DCA 2000).

AFFIRMED in part; REVERSED in part.

EVANDER and COHEN, JJ., concur.