author: RAY, J.

text:
    Ralph MONROE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3966.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.

      Michael Ufferman, of Ufferman Law Firm, P.A., Tallahassee, for Appellant.

      Pamela Jo Bondi, Attorney General; and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   RAY, J.

In this direct appeal, Ralph Monroe challenges his judgment and sentence for capital sexual battery on a child under 12 years of age by a defendant 18 years of age or older and lewd or lascivious molestation on a child under 12 years of age by a defendant 18 years of age or older. The trial court designated Monroe a sexual predator and sentenced him to a mandatory life sentence without parole for capital sexual battery and to 40 years’ incarceration for lewd or lascivious molestation.

We affirm Monroe’s judgment and sentence and write to explain our reasoning on two issues: (1) whether the trial court erred by denying the motion to suppress Monroe’s statements made to an investigator in light of the fact that the investigator failed to read Monroe his Miranda rights prior to questioning him, and (2) whether the evidence was sufficient to prove that the offenses occurred when Monroe was 18 years of age or older. On the first point, we hold that the trial court properly denied the motion to suppress because Monroe was not “in custody” at the time of his confession, and therefore, no Miranda warnings were necessary. On the second point, we conclude that the sufficiency-of-the-evidence claim was not properly preserved for appellate review and does not rise to the level of fundamental error under the standard adopted in F.B. v. State, 852 So.2d 226 (Fla.2008). However, we certify a question of great public importance regarding the applicability of that standard where, as here, it makes a constitutionally significant difference in the penalties applicable to the defendant.

Suppression Issue

I. Facts

The sexual battery charge alleged that Monroe digitally penetrated victim T.J.’s anus. The charge of lewd or lascivious molestation alleged unlawful, intentional touching of T.J.’s breasts, genitals, genital area, buttocks, or clothing over them in a lewd or lascivious manner. Monroe moved to suppress his statements obtained during what he argued was an illegal custodial interrogation. The parties generally agreed regarding the material facts surrounding the interview.

At the suppression hearing, Special Agent Terry Thomas of the Florida Department of Law Enforcement testified that he interviewed T.J. and a second child, who alleged they were victims of crimes at the Florida Agricultural and Mechanical University Developmental Research School. As a result of these interviews, Monroe became a suspect. Monroe was a high-school senior and the children were elementary-school students at the K-12 facility at the time of the incidents.

Agent Thomas obtained an arrest warrant for Monroe, who was by that time a college freshman in Alabama. The agent testified that he traveled to Alabama to talk to Monroe and to elicit a confession. The agent had no arrest authority in Alabama, but he had made arrangements before the interview for Monroe ultimately to be arrested on the warrant. The agent stated that his intent was to conduct a noncustodial interview.

Upon arriving at the college campus, Agent Thomas met with the college police chief and arranged through the dean of students to interview Monroe. Monroe’s college football coach escorted Monroe to an unlocked, publicly accessible conference room, where Monroe first met Agent Thomas, who wore jeans and a T-shirt and did not display a weapon. Monroe took a seat closest to the exit door while Agent Thomas sat on the other side of the table. Prior to conducting the taped interview, Agent Thomas introduced himself to Monroe, presented his credentials, and explained his purpose for being there. The agent testified that he made no threats or promises to Monroe before the taped interview.

The audiotape of the twenty-minute interview was played for the trial court and revealed the following. Agent Thomas informed Monroe that he was conducting an investigation involving an eight-year-old male student, a matter Monroe had previously discussed with a school resource officer. After Monroe acknowledged that he knew what the agent was talking about, Agent Thomas stated:

You don’t have to talk to me. That’s why I brought you in here. You can get up and leave any time you want, but I’m hoping that, you know, you could explain your side of the story here. Like I said, I’ve interviewed the eight-year-old boy and he has identified you as somebody that’s done some inappropriate stuff to him and he’s picked you out of a photo pack, a photo lineup [unintelligible]. Is that you in the middle there?

Monroe admitted that it was his photo. Agent Thomas told Monroe that the victim had given him details of what Monroe did to him in the school bathroom. Monroe denied any wrongdoing. When asked why the boy would make up the allegations, Monroe opined, “He could lie.” Monroe admitted having been in the bathroom with the boy but claimed he simply walked out as the boy entered the room. As the conversation continued, Monroe repeatedly denied wrongdoing and Agent Thomas repeatedly accused him of lying, reiterating the seriousness of the allegations.

Agent Thomas asked, “What do you think I should do with you? Do you think I drove all the way up here to have you tell me nothing happened?” Despite having denied wrongdoing, Monroe suggested that Agent Thomas could occasionally check to see how and what Monroe was doing. Agent Thomas asked Monroe if he was afraid he was “going to do something like this again,” and Monroe expressed concern that this type of allegation could come up again.

The agent reminded Monroe that the child had given a detailed statement and picked out Monroe’s photo. Agent Thomas acknowledged that “we all make mistakes” and then asked whether he was supposed to return to Tallahassee to tell the story as if the child were a liar. Monroe answered “no,” but he reasserted that the child was lying about any touching. Monroe again urged Agent Thomas to call and check on him every now and then, “just to be safe.” Agent Thomas asked why he would need to check on Monroe if he had never done anything. Again, Monroe denied wrongdoing, and the agent replied, “I don’t believe you.” He reminded Monroe that he was free to get up and leave.

Agent Thomas stated that he was trying to treat Monroe “like a man” and with respect. When Monroe asked what would happen if he left the room right then, Agent Thomas replied that he had a legal obligation to continue investigating. Monroe restated that he had walked out of the bathroom as soon as the child walked in, and no touching occurred. Monroe conceded that, at most, he may have said “hey” to the child. After more exchanges in which Agent Thomas expressed his belief that the child’s allegations were true and Monroe denied them, Agent Thomas stated that his lengthy experience indicated that little kids do not make up such accusations. Agent Thomas noted that when the child made the allegations, he was not in trouble. Monroe reiterated that the child had fabricated this story.

Agent Thomas reminded Monroe that he was missing an opportunity, and the agent was going to continue the investigation. Agent Thomas indicated that the interview was ending, but that this matter was not going away. He also told Monroe that he could not “undo what [he] did” but that Monroe “could make it better.” Monroe then asked whether he could get counseling. Agent Thomas answered affirmatively and stated that first, Monroe would have to admit what he had done. Monroe ultimately agreed to “open up.”

Monroe told the agent that after saying “hey, how you doing,” he touched the child. Claiming he was trying to handle this situation differently from the way most officers would handle it, Agent Thomas said, “I know you want to talk about it. It’s probably going to weigh on you since it happened.” Agent Thomas told Monroe that “most cops” would have just walked in, put handcuffs on him, and taken him away.

The agent then asked Monroe to tell him what actually happened. Monroe replied, “I walked in there. I saw him coming in. Do you want to play a game, with him? Basically, sex .... what you said.” Agent Thomas indicated that Monroe was “on the right track.” In response, Monroe admitted having touched the child, gesturing to show what he had done. With Agent Thomas urging him to proceed because there was more, Monroe denied doing anything else. The agent asked, “Put your finger in his butt; right?” Monroe answered, “At that part, yeah.” Additionally, Monroe acknowledged asking the child if he wanted to play a game, and Monroe admitted touching the child’s penis with his hand.

Monroe stated that since making a bad choice, he had been training himself to be a better role model and to make a better life for himself. He said Agent Thomas could tell the child’s family or his teachers that Monroe was deeply sorry and that nothing like it would ever occur again. The agent confirmed with Monroe that it would be all right to report that he had “manned up” and admitted the allegations.

Agent Thomas testified that at the conclusion of the interview, he turned off the tape, opened the door, and invited the police chief, the dean of students, and the coach to enter the room. The dean talked to Monroe about being removed from the college. They did not put Monroe in handcuffs, but he was escorted to an unmarked police car to leave the college campus. The agent said he had taken steps to ensure that Monroe would feel free to leave the conference room anytime and would not believe he was in official custody. Agent Thomas testified he never raised his voice, acted aggressively, or threatened or badgered Monroe.

After this testimony, defense counsel argued that the procedural safeguards in Miranda are designed to protect persons like Monroe from law enforcement’s use of trickery and manipulation to solicit an involuntary confession. The defense asserted that the interview constituted a custodial interrogation without the required reading of Miranda rights before the questioning commenced. The trial judge denied the motion to suppress.

II. Law

A ruling on a motion to suppress involves a mixed question of fact and law. Mixed questions that ultimately determine constitutional rights should be reviewed with deference to the trial court on questions of historical fact. Connor v. State, 808 So.2d 598, 605-08 (Fla.2001). We have de novo review of the application of a constitutional standard to the facts. Id.; MacKendrick v. State, 112 So.3d 131, 136 (Fla. 1st DCA 2013). In reviewing the ruling on a motion to suppress, we interpret the evidence and all reasonable inferences in a light most favorable to sustaining the order. Murray v. State, 692 So.2d 157,159 (Fla.1997).

Appropriate warnings must precede “custodial interrogation,” which is “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). In this particular context, “the term ‘interrogation’ ... refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police know are reasonably likely to elicit an incriminating response from the suspect.” Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); cf. Traylor v. State, 596 So.2d 957, 966 n. 17 (Fla.1992) (noting that under the Florida Constitution an interrogation occurs when a “reasonable person would conclude [express questions or actions] are designed to lead to an incriminating response”).

The test for determining whether a suspect is in custody for purposes of Miranda is whether “under the totality of the circumstances, a reasonable person in the suspect’s position would feel a restraint of his or her freedom of movement, fairly characterized, so that the suspect would not feel free to leave or to terminate the encounter with police.” Connor, 803 So.2d at 605. For guidance in making this totality-of-the-circumstances assessment, Florida courts consider the following factors, set forth in Ramirez v. State, 739 So.2d 568, 574 (Fla.1999):

(1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; (4) whether the suspect is informed that he or she is free to leave the place of questioning.

Under this objective, reasonable-person framework, no single factor may “be considered in isolation”; rather, “[t]he whole context must be considered.” State v. Pitts, 936 So.2d 1111, 1124 (Fla. 2d DCA 2006). “The whole point of the custody analysis is to determine whether, given the circumstances, ‘a reasonable person [would] have felt he or she was ... at liberty to terminate the interrogation and leave.’ ” J.D.B. v. North Carolina, — U.S. -, 131 S.Ct. 2394, 2407, 180 L.Ed.2d 310 (2011) (quoting Thompson v. Keohane, 516 U.S. 99, 112, 116 S.Ct. 457, 133 L.Ed.2d 383 (1995)).

III. Analysis

The dispute at issue involves the application of well-settled law to the facts. It cannot be reasonably denied that Agent Thomas’s questioning of Monroe constituted official interrogation, for the agent’s words or actions were “reasonably likely to elicit an incriminating response” from Monroe. Innis, 446 U.S. at 301, 100 S.Ct. 1682; see MaeKendrick, 112 So.3d at 140. The pivotal issue is whether it was a “custodial” interrogation. To resolve this legal question, we consider the four Ramirez factors.

First, we conclude that Agent Thomas’s manner of summoning Monroe does not suggest a custodial environment, as the meeting was arranged through college officials; Monroe was escorted by his football coach, rather than a law enforcement officer; and Agent Thomas greeted Monroe alone and in plain clothes.

Second, “the purpose, place, and manner of the interrogation” does not indicate that Monroe was in custody. We find significant that the meeting took place in a publicly accessible, unlocked conference room on a college campus, rather than at a police station. The campus conference room did not present the same “inherently coercive pressures” as the police station questioning did in Miranda. See Howes v. Fields, — U.S. -, 132 S.Ct. 1181, 1189-90, 182 L.Ed.2d 17 (2012). Further, Agent Thomas conducted the interrogation in a conversational tone free of threats or promises, and nothing in the record indicates that Monroe, who sat closer to the exit, was in any way prevented or hindered from leaving. See Cilio v. State, 849 So.2d 353, 355-56 (Fla. 2d DCA 2003) (concluding that evidence did not suggest a coercive atmosphere during interview at sheriffs office, where detectives made no threats or promises, defendant did not appear to be intimidated or subdued by detectives’ presence, and their tone was conversational). Although Agent Thomas was persistent, opinionated, and orally confrontational, he did not use coercive measures to elicit information from Monroe during the relatively brief interview. Cf. Ross v. State, 45 So.3d 403, 415-16 (Fla.2010) (concluding that defendant was in custody for Miranda purposes where detectives questioned him for hours in a small room, confronted him with strong evidence of his guilt, repeatedly told him that they knew he had committed the crime and that the only remaining question was why he had done so, were “highly confrontational and accusatorial,” and never told defendant he was free to leave).

Monroe argues that he was effectively under arrest and in custody when Agent Thomas interviewed him because the agent already had an arrest warrant. Significantly, however, Agent Thomas did not disclose the existence of the warrant during the interview, and the record does not suggest that Monroe had any prior independent information that the agent had an arrest warrant. Absent a restraint on Monroe’s movement to a degree associated with an actual arrest, the fact that the agent already had a warrant for Monroe’s arrest and hoped to obtain a confession does not conclusively establish that Monroe was in custody for Miranda purposes. Berkemer v. McCarty, 468 U.S. 420, 442, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (“A policeman’s unarticulated plan has no bearing on the question whether a suspect was ‘in custody’ at a particular time .... ”); Davis v. State, 698 So.2d 1182, 1188 (Fla.1997). The surrounding circumstances support the trial court’s conclusion that this second Ramirez factor weighs in favor of the State. See Perez v. State, 919 So.2d 347, 360-61 (Fla.2005); Bedoya v. State, 779 So.2d 574, 579 (Fla. 5th DCA 2001).

The third Ramirez factor addresses the extent to which Monroe was confronted with evidence of his guilt. Although Agent Thomas repeatedly provided Monroe with generalized evidence of his guilt, the agent did not initially disclose much of the substance of the child’s statement. Agent Thomas told Monroe that the victim reported inappropriate touching and an offer from Monroe to play a game, but it was Monroe who eventually provided specific details (not previously disclosed to him by the agent) about where and how he touched the victim. On the other hand, Monroe knew at least something about the victim’s allegations before the interview due to his contact with the school resource officer, and Agent Thomas encouraged Monroe when he was “on the right track” according to the victim’s allegations. The third factor presents a close question, but the record supports the trial court’s decision to weigh it in favor of the defense.

The fourth factor is whether law enforcement advised Monroe that he was free to leave. The defendant in Ramirez was never told he was free to leave during the course of his interview at the police station. 739 So.2d at 574. In stark contrast, Agent Thomas repeatedly informed Monroe that he was free not to talk and to get up and leave the room anytime. While Agent Thomas added that “most cops” would have handcuffed Monroe and taken him away, Monroe understood that he was free to terminate the interview and to leave the room, for he asked the agent what would happen if he did so. Agent Thomas replied truthfully that as a law enforcement officer, he had a legal obligation to continue investigating the allegations. This response in no way indicates that Monroe was in custody; to the contrary, it suggests that additional investigatory work was necessary prior to an arrest. Monroe acknowledges that this fourth factor “arguably weighs” in the State’s favor, the trial court found this to be the case, and we agree.

In consideration of the four Ramirez factors, we conclude that the totality of the circumstances supports the trial court’s determination that Agent Thomas’s questioning of Monroe was not custodial for Miranda purposes. Even though the third factor weighs in favor of the defense, the remaining circumstances would indicate to a reasonable person that he was free to leave and terminate the encounter. Because it was not necessary to read Miranda warnings before or at any time during Monroe’s interview, the trial court correctly denied the motion to suppress.

Sufficiency of the Evidence

I. Facts

The information charged Monroe with capital sexual battery and lewd or lascivious molestation, both involving a child younger than 12. If the jury found Monroe guilty of either or both of these offenses, the verdict form allowed the jury to determine whether Monroe was younger than 18 years of age, or 18 or older, when he committed the crime(s). The evidence established that Monroe battered and molested the victim during Monroe’s senior year of high school, but there was no evidentiary basis for determining whether the incident giving rise to the charges took place before or after Monroe’s eighteenth birthday, which occurred during that school year. The State attempted to establish Monroe’s age by questioning the victim about the timing of the incident, but the victim could not be sure exactly when it happened. During the vigorous cross-examination of the victim, it was obvious the defense was not conceding that Monroe was 18 or older when the incident occurred.

There was a clear factual dispute over whether Monroe was 18 years old at the time of the crimes, but defense counsel declined to challenge the sufficiency of the State’s evidence through a motion for a judgment of acquittal. In closing arguments, counsel told the jury that the prosecution had not met its burden to prove that Monroe was 18 or older when he committed the offenses. The jury found Monroe guilty of sexual battery and lewd or lascivious molestation, with specific findings that he was 18 or older at the time of the offenses. On appeal, Monroe asserts that the State failed to prove an essential element of the crimes of which he was convicted — that he was at least 18 years old when the offenses occurred.

II. Law and Analysis

At the outset, we must determine whether we may address this issue on direct appeal. Monroe concedes that the issue was not preserved and, therefore, supports reversal only if he has established fundamental error under F.B. v. State, 852 So.2d 226, 280 (Fla.2003). In F.B., the Florida Supreme Court set forth specific rules for finding fundamental error in the insufficiency of the evidence to support a criminal conviction and recognized only two exceptions to the contemporaneous-objection requirement in this context. 852 So.2d at 229-30. The first exception deals exclusively with death-penalty cases and is inapplicable here. Id. at 230. The second exception occurs “when the evidence is insufficient to show that a crime was committed at all.” Id. The F.B. court elaborated on this exception as follows:

[A]n argument that the evidence is totally insufficient as a matter of law to establish the commission of a crime need not be preserved. Such complete failure of the evidence meets the requirements of fundamental error — i.e., an error that reaches to the foundation of the case and is equal to a denial of due process.

Id. (internal citations omitted).

Relying on this second exception, Monroe argues that fundamental error occurred due to a complete failure of proof by the State that he was 18 or older at the time of the offenses, resulting in convictions that carry substantially tougher penalties than those applicable to offenders under the age of 18. Indeed, a conviction for a sexual battery committed against a victim younger than 12 years old by a person 18 or older is a capital felony, with a mandatory sentence of life imprisonment without the possibility of parole. §§ 794.011(2)(a), 775.082(l)-(2), Fla. Stat. (2011). In contrast, a sexual battery committed against a victim younger than 12 by a person under the age of 18 is a life felony, meaning that the defendant is sentenced under the Criminal Punishment Code and the trial court has discretion to impose a sentence of less than life in prison. §§ 794.011(2)(b), 775.082(3)(a)3., Fla. Stat. (2011). A lewd or lascivious molestation committed against a victim younger than 12 by a person 18 or older is a life felony. § 800.04(5)(b), Fla. Stat. (2011). However, a lewd or lascivious molestation committed against a person younger than 12 by a person under the age of 18 is a second-degree felony, for which the penalty may not exceed fifteen years in prison. §§ 800.04(5)(c)l, 775.082(3)(c), Fla. Stat. (2011). Thus, the consequences of lack of preservation in this case, if the error is not fundamental, are substantial.

Consistent with Monroe’s argument, some decisions citing F.B. appear to have construed the second exception as holding that fundamental error occurs where there is a complete failure of proof that the crime for which the defendant was convicted, as opposed to simply any crime, occurred. See, e.g., Crain v. State, 79 So.3d 118, 122 (Fla. 1st DCA 2012) (finding fundamental error in the defendant’s conviction for driving on a suspended or revoked license where he never had a license at all, and remanding for an adjudication of guilt as to the lesser crime of driving without a valid driver’s license, which was proven); Hamilton v. State, 71 So.3d 247 (Fla. 4th DCA 2011) (reversing a conviction for robbery with a weapon due to fundamental error in the State’s reliance on a toy gun as its proof of the defendant’s use of a weapon); Rodriguez v. State, 964 So.2d 833 (Fla. 2d DCA 2007) (holding reversal was required “[b]ecause the State’s proof did not establish the crimes for which [the defendant] was convicted”); see also De La Hoz v. State, 997 So.2d 1198,1202 (Fla. 3d DCA 2008) (observing that the Second and Fourth Districts have interpreted F.B. as recognizing fundamental error when the evidence is “legally insufficient to prove the offense of which the defendant was convicted, but is legally sufficient to prove a lesser included offense”); but see A.P.R. v. State, 894 So.2d 282, 286 (Fla. 5th DCA 2005) (observing that the second F.B. exception applies when “no crime was committed at all” and not when “the evidence is merely insufficient to prove an element of the crime charged”).

However, subsequent to these decisions, the supreme court applied F.B. more broadly in Young v. State, 141 So.3d 161 (Fla.2013). Young was convicted of burglary of a dwelling. 141 So.3d at 163. On appeal and before the Florida Supreme Court, Young raised the unpreserved argument that the structure he entered was not a dwelling because it was undergoing substantial renovations, and was arguably not suitable for lodging, at the time of the offense. Id. at 163-65. The court found this argument waived because the evidence suggested, “at the least, ... that [the defendant] committed a burglary of a structure.” Id. at 165. The court explained, “As the evidence indicates that a crime was in fact committed by [the defendant], [his] conviction cannot be said to be fundamental error.” Id. (emphasis added).

Young supports the more stringent reading of F.B. to require a showing that the evidence could not support the conviction of any crime whatsoever before an evidentiary deficiency may be held to constitute fundamental error. Only then will such a “complete failure of the evidence” rise to the level of fundamental error. F.B., 852 So.2d at 230.

Applying this principle to the instant case, we must base our decision on the fact that there is competent, substantial evidence that Monroe committed a crime, even if not the crime reflected by the verdict. The evidence was legally sufficient to show that Monroe committed sexual battery and lewd or lascivious molestation at least as a juvenile, even if not as an adult. As the evidence indicates that Monroe did in fact commit a crime, his convictions cannot be said to be fundamental error under Florida Supreme Court precedent. Young, 141 So.3d at 165; F.B., 852 So.2d at 230-31. Monroe acknowledged at oral argument that we could not conclude otherwise without expanding the exception announced in F.B.

Nonetheless, Monroe argues that the circumstances of this case indicate “classic fundamental error.” Fundamental error has generally been defined as that which “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error” or error that “goes to the foundation of the case or the merits of the cause of action and is equivalent to a denial of due process.” F.B., 852 So.2d at 229 (quoting Brown v. State, 124 So.2d 481, 484 (Fla.1960), and J.B. v. State, 705 So.2d 1876, 1378 (Fla.1998)); cf. Garcia v. State, 901 So.2d 788, 793 (Fla.2005) (holding that the omission of a jury instruction on a disputed element of a crime is fundamental error). But recognizing the goals promoted by preserving error in the trial court, the F.B. court reached a very specific holding pertaining to challenges to the sufficiency of the evidence, identifying only two exceptions to the preservation rule as applied to these challenges. Neither exception applies here.

We have considered whether F.B. and Young are distinguishable. We find it noteworthy, but not dispositive, that part of F.B. ’s justification for limiting the fundamental-error standard as applied to sufficiency-of-the-evidence challenges was that “[a]ny technical deficiency in proof may be readily addressed by timely objection or motion, thus allowing the State to correct the error, if indeed it is correctable, before the trial concludes.” 852 So.2d at 230. F.B. is arguably distinguishable because it involved a technical deficiency in proof. See id. (including this concept in the reasoning leading to the second exception); F.B. v. State, 816 So.2d 699, 701 (Fla. 4th DCA 2002) (expressly opining that the error might have been correctable if it had been brought to the court’s attention).

Young, however, is not distinguishable. As here, the issue in Young was not a matter of the State’s mere oversight in presenting the evidence available on a particular element. Rather, the State presented evidence it believed established the status of a burglarized structure as a dwelling, and the analysis of the issue depended on whether that evidence met the legal requirements of the statute defining the offense. See 141 So.3d at 171-72. Because the defendant in Young failed to argue to the trial court that the structure was not a dwelling as a matter of law, and the evidence established at least burglary of a structure, the argument was waived. Id. at 165. Similarly, here, Monroe failed to argue to the trial court that the proof the State presented of his age was not competent, substantial evidence that he was 18 years old at the time of the incident. In neither Young nor the instant case could any deficiency in the State’s proof have been corrected merely by reopening the case. In both cases, the State presented evidence intended to prove the element at issue on appeal with no indication that it could have produced more. Therefore, we cannot say that any omission in either case was a mere technical deficiency in the proof.

Applying F.B. to the instant case gives us pause because Monroe’s failure to preserve the issue resulted in a monumental disparity between the sentence the court was required to impose under the verdict for capital sexual battery and the sentence the court could have imposed under a verdict supported by competent, substantial evidence. The difference between preservation and silence in this case meant the difference between a mandatory sentence of life without parole and the availability of a term of years. Under Graham v. Florida, 560 U.S. 48, 74, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), a mandatory sentence of life without parole for a nonhomicide offense is unconstitutional when imposed against a juvenile offender. Therefore, the State’s failure to prove that Monroe was an adult at the time of his offenses has constitutional significance.

The Florida Supreme Court has not yet been asked to apply F.B. in a case where the defendant was convicted of one crime, the State proved only a crime charged as a lesser included offense, and the disparity between the sentencing options available for the proven crime and the crime reflected by the verdict is vast and carries constitutional implications. Given the concerns this case raises and the applicability of F.B. to any criminal case involving an unpreserved challenge to the sufficiency of the evidence, we certify the following question of great public importance to the Florida Supreme Court:

DO F.B. V. STATE, 852 So.2d 226 (Fla.2003), AND YOUNG V. STATE, 141 So.3d 161 (Fla.2013), REQUIRE PRESERVATION OF AN EVIDENTIARY DEFICIENCY WHERE THE STATE PROVED ONLY A LESSER INCLUDED OFFENSE AND THE SENTENCE REQUIRED FOR THE GREATER OFFENSE WOULD BE UNCONSTITUTIONAL AS APPLIED TO THE LESSER OFFENSE?

AFFIRMED; QUESTION CERTIFIED.

WOLF and PADOVANO, JJ., concur.

      . Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The Florida Supreme Court relied on the broad language of F.B. in Insko v. State, 969 So.2d 992 (Fla.2007), as well, but under rather unique circumstances. Insko was charged with lewd or lascivious conduct under a statute requiring the offender to be over the age of eighteen. 969 So.2d at 994. The defendant was, in fact, thirty-three years old at the time of the crime. Id. However, in an apparent exercise of its pardon power, the jury convicted the defendant of a lesser-included offense applicable when the defendant is under the age of eighteen. Id. at 994, 1001-02. This conviction was reversed due to the improper admission of the defendant’s prior bad acts. Id. at 994. On remand, the defendant moved to dismiss the case, asserting that the State could not prove the essential element that he was under the age of eighteen because his birth certificate refuted this element. Id. at 994-95. The defendant could not be retried on the greater offense because he had already been acquitted of it. Id. at 997.
      The Florida Supreme Court held that Insko had waived the right to challenge the age element of the lesser offense by failing to object to the jury’s consideration of that charge in the first trial and, indeed, by specifically stating that he had no objection to it. Id. at 1001-02. The court then held that the State’s inability to prove that the defendant was under the age of eighteen did not amount to fundamental error because the evidence was "not insufficient to show that a crime was committed.” Id. at 1002. For this reason, the Insko court held that the defendant was bound by the waiver he accomplished in the first trial and would not be heard to complain about the insufficiency of the evidence in the anticipated second trial. Id. Due to the court’s conclusion that the first verdict was a jury pardon, it is clear that the State presented evidence of the defendant’s age in the first trial, thus establishing not only a crime was committed, but the greater offense.

      . Monroe did not raise ineffective assistance of counsel on the face of the record, and we would be reticent to find it under these circumstances. Finding ineffective assistance of counsel on the face of the record due to the failure to raise the insufficiency of the evidence to support a conviction before the trial court would be tantamount to holding that such an issue need not be preserved, contrary to the holding in F.B.

      . Incidentally, the Young court decided to address the merits of the issue despite the waiver and opined that the State's evidence was sufficient. 141 So.3d at 171-72.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Harold HOLTON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4561.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Nancy A. Daniels, Public Defender, and Deborah Whisnant, Assistant Public Defender, Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 10, 2014, in Leon County Circuit Court case number 2013-CF-2510A, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Marcus Everette JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4382.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Matt Shirk, Public Defender; Elizabeth H. Webb, Assistant Public Defender, and Alphonse B. Perkins, Assistant Public Defender, Jacksonville, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 27, 2013, in Duval County Circuit Court case number 16-2012-CF-002320-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the lower tribunal has appointed the Office of the Public Defender to represent petitioner for appellate purposes.

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Corey BRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3516.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    W. Charles Fletcher, Jacksonville, Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on February 13, 2014, in Duval County Circuit Court case number 16-2012-CF-011582-AXXX-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. The court notes that the Office of the Public Defender has been appointed to represent petitioner for appellate purposes.

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Corey Landon McCOMAS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3227.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    W. Timothy Weekley, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence imposed on or about April 28, 2014, in Okaloosa County Circuit Court case numbers 2012-CF-1050, 2012-CF-1374, 2012-CF-2116, 2012-CF-2117, 2013-CF-1030, and 2013-CF-2303, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    Thomas J. SILVERNAIL, Appellant, v. CITY OF TAMPA/COMMERCIAL RISK MANAGEMENT, Appellee.
    No. 1D13-6203.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Orlando, and Christopher Mank of Morrell & Mank, P.A., Lakeland, for Appellant.
    L. Gray Sanders, Tampa, for Appellee.
   PER CURIAM.

“For an issue to be preserved for appeal, it must be presented to the lower court and the specific legal argument or ground to be argued on appeal must be part of that presentation.” Holland v. Cheney Bros., Inc., 22 So.3d 648, 649-50 (Fla. 1st DCA 2009). Here, the estoppel argument raised by the claimant on appeal was not presented to the Judge of Compensation Claims (JCC) in any meaningful way, shape or form until an untimely motion for “reconsideration.” This was insufficient to preserve the issue for our review, and on that basis, we affirm the order denying the compensability of the claimant’s bradycardia condition and the payment of medical bills related to that condition.

AFFIRMED.

WOLF, THOMAS, and WETHERELL, JJ., concur.

       The motion — which the JCC properly treated as a motion for rehearing under Florida Administrative Code Rule 60Q-6.122(1) rather than a motion to vacate the final order under rule 60Q-6.122(5) — was filed 11 days late because it was received by the Office of the Judges of Compensation Claims at 6:13 p.m. on the 20th day after the final order was issued. See Fla. Admin. Code R. 60Q-6.108(l)(e) (explaining that documents received after 5:00 p.m. will be deemed filed at 8:00 a.m. on the next business day); Fla. Admin. Code R. 60Q-6.122(1) (requiring motions for rehearing to be filed within 10 days from the date of the order sought to be reviewed). Moreover, the motion only presented a portion of the argument raised by the claimant on appeal. The motion asserted that the employer/carrier (E/C) is estopped from denying payment of the bills for two hospital visits related to the bradycardia condition based upon its payment of bills from one other hospital visit related to that condition; however, the motion did not argue — as does the initial brief — that the E/C is estopped from denying compensability based upon the "120-day rule” in section 440.20(4), Florida Statutes.


text:
    Harlan Taylor POWELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-2536.
    District Court of Appeal of Florida, First District.
    Oct. 27, 2014.
    Nancy A. Daniels, Public Defender, and Lacey Kantor, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Jay Kubica, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Melbourne v. State, 679 So.2d 759, 765 (Fla.1996) (concluding petitioner failed to preserve her objection to the use of a peremptory challenge because petitioner did not renew the objection before the jury was sworn); Romero v. State, 105 So.3d 550, 552 (Fla. 1st DCA 2012) (citing Joiner v. State, 618 So.2d 174, 176 (Fla.1993)) (concluding appellant’s objection to the state’s exercise of a peremptory challenge was unpreserved for review because defense counsel affirmatively accepted the jury before it was sworn without renewing the earlier objection).

LEWIS, C.J., BENTON, and RAY, JJ., concur.


text:
    Bernard Jackson MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-6066.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2014.
    Nancy A. Daniels, Public Defender, Megan Lynne Long, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Giselle Denise Lylen, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Walton v. State, 106 So.3d 522, 528 (Fla. 1st DCA 2013) (en banc); Smart v. State, 114 So.3d 1048 (Fla. 1st DCA 2013).

THOMAS, ROBERTS, and ROWE, JJ., concur.


text:
    Laron COLEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1731.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2014.
    Nancy A. Daniels, Public Defender, and Steven Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Samuel Steinberg, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Kraay v. State, 148 So.3d 789 (Fla. 1st DCA 2014).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


author: WETHERELL, J. MAKAR, J.,

text:
    Mariah R. SEILKOP, Appellant, v. Barbara M. BARKER and Richard D. Barker, Appellees.
    No. 1D14-560.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.
    Rehearing Denied Oct. 29, 2014.

      Sharon H. Proctor of Proctor Appellate Law, PA, Merritt Island, for Appellant.

      Lucas J. Taylor of Sellers, Taylor & Morrison, P.A., Live Oak, for Appellees.
   WETHERELL, J.

Mariah Seilkop appeals an order denying her petition to terminate Barbara and Richard Barker’s temporary custody of her minor child. Ms. Seilkop argues that the trial court erred because the evidence introduced at the hearing on the petition does not support a finding that she is an unfit parent. We agree and reverse.

In January 2012, Ms. Seilkop, who was 18 years old at the time, asked the Barkers to take custody of her eight-month old son so that she could enroll in college and get on her feet financially. The Barkers are the child’s paternal great aunt and uncle, and without objection, they were granted temporary custody pursuant to an order entered under chapter 751, Florida Statutes.

In May 2018, Ms. Seilkop petitioned the court to terminate the Barkers’ temporary custody, asserting that she was now in a position to meet her son’s needs. See § 751.05(6), Fla. Stat. (2018). The Barkers objected to the termination of their custody and an evidentiary hearing was held on the petition.

The trial court denied the petition at the conclusion of the hearing, finding that Ms. Seilkop was not a fit parent because (1) her second-floor apartment located near a retention pond was “unfit and dangerous” and “likely to result in harm to the child;” (2) her history of “unstable relationships, domestic violence, and other illegal activities, such as underage drinking” had had a detrimental impact on the child, and her attitude toward such activities demonstrated “immaturity;” and (3) she was unable to adequately care for the child during monthly visitations. The trial court also found that the child is “very bonded to the [Barkers] and removing him abruptly would be detrimental.” This appeal followed.

Section 751.05(6) provides in pertinent part that the trial court “shall terminate the [temporary custody] order upon a finding that the parent is a fit parent .... ” The term “fit parent” is not defined, but another provision of section 751.05 explains that a parent is “unfit” if the parent has “abused, abandoned, or neglected the child, as defined in chapter 39.” § 751.05(3)(b), Fla. Stat. (2013). Thus, by implication, a “fit parent” is one who has not abused, abandoned, or neglected the child, as those terms are defined in chapter 39.

Because it is undisputed that Ms. Seil-kop has not abused or abandoned her son, the trial court’s determination that she is not a fit parent could only be supported by a finding that Ms. Seilkop neglected her son. Under chapter 39, neglect occurs only when “a child is deprived of ... necessary food, clothing, shelter, or medical treatment or a child is permitted to live in an environment [that] causes the child’s physical, mental, or emotional health to be significantly impaired.” § 39.01(44), Fla. Stat. (2013); see also K.R. v. Dep’t of Children & Families, 784 So.2d 594, 598 (Fla. 4th DCA 2001) (explaining that “[a]n impairment is an injury”). Here, the circumstances cited by the trial court are legally insufficient to support a finding that Ms. Seilkop neglected her son.

First, the finding that Ms. Seilkop’s apartment is dangerous and likely to harm the child is purely speculative and does not rise to the level of neglect under section 39.01(44). See J.H. v. State, 480 So.2d 680, 683 (Fla. 1st DCA 1985). No evidence was presented to show that the child had ever been left unattended inside the apartment or that he had left the apartment on his own and wandered over to the nearby-pond. Moreover, Ms. Seilkop testified that she had installed a lock on the door to prevent such an incident from occurring.

Second, Ms. Seilkop’s history of underage drinking and poor romantic choices does not constitute neglect. There is no evidence in the record that her actions resulted in physical, mental, or emotional harm to the child or that they caused him to be deprived of food, clothing, shelter or medical care. Furthermore, the court’s finding that Ms. Seilkop engaged in “other illegal activities” is not supported by the record. Although the Barkers and the court may find Ms. Seilkop’s behavior immature and disapprove of her lifestyle, “poor parental judgment” is not neglect. See L.P. v. Dep’t of Children & Family Servs., 962 So.2d 980, 982 (Fla. 3d DCA 2007).

Third, evidence of the child’s condition after visits with Ms. Seilkop was insufficient to show that he had been neglected while in her care. Mrs. Barker testified that on one occasion (approximately a year before the petition was filed), the child returned from a visit with Ms. Seilkop hot, red-faced and fussy, wearing a dirty diaper, with sour milk in his cup, and that after another -visit he was “very clingy” for several days until he settled back into his routine. However, Mrs. Barker also testified that, after more recent visits, although the child still appears to be tired and hungry after he is returned by Ms. Seil-kop, “he does seem to bounce back quicker.” Moreover, there was no testimony to show that the child’s condition on either of the earlier occasions was the result of “deprivation” of necessary food, clothing, or shelter or that the child’s physical, mental, or emotional health had been “significantly impaired.”

with respect to the trial court’s finding that it would be detrimental to return Ms. Seilkop’s son to her, this court explained in a similar case (albeit one not arising under chapter 751, Florida Statutes) that:

the detriment which must be established ... before a natural parent’s request for custody may be denied involves something much more serious than the discomfort normally experienced by a child when moved from a familiar environment into one engulfed by the fear and uncertainty associated with the unknown: ‘.... It contemplates a longer term adverse effect that transcends the normal adjustment period in such cases.’

Murphy v. Markham-Crawford, 665 So.2d 1093, 1094 (Fla. 1st DCA 1995) (quoting Filter v. Bennett, 554 So.2d 1184, 1185 (Fla. 2d DCA 1989)); see also Hammond v. Howard, 828 So.2d 476, 478 (Fla. 5th DCA 2002) (explaining that under the common law parental preference rule, the rights of the parents are paramount unless there is a showing that “the parents are unfit” or that custody in the parents “would be detrimental to the child’s welfare,” and suggesting that the language now codified in section 751.05(6) “embraced” this rule); but of § 751.05(6), Fla. Stat. (2013) (providing that the trial court is to consider the “best interest of the child” when determining whether to modify a temporary custody order, but providing no similar directive when determining whether to terminate a temporary custody order). The evidence presented below did not come close to meeting this standard.

In sum, because the trial court’s order denying Ms. Seilkop’s petition to terminate the Barkers’ temporary custody is not supported by legally sufficient evidence, we reverse the order and remand for further proceedings consistent with this opinion.

REVERSED and REMANDED.

VAN NORTWICK, J., concurs.

MAKAR, J., concurs in result with opinion.

MAKAR, J.,

concurring in result.

I agree that reversal is legally required in this custody case under the relaxed definition of what constitutes a fit parent under Florida law. Fitness is defined— not by its vernacular meaning — but by default: a parent impliedly is deemed fit if she has not “abused, abandoned or neglected” the child at issue as those concepts are legally defined. § 751.05(3)(b), Fla. Stat. (“In determining that a parent is unfit, the court must find that the parent has abused, abandoned, or neglected the child, as defined in chapter 39.”). Bad, or even terrible, childrearing does not render one unfit; only an act of abuse, abandonment, or neglect does.

In this case, the trial court was sufficiently troubled by the mother’s current lifestyle and behavior that it concluded the child should remain in the custody of his paternal aunt and uncle. This ruling, perhaps done to err on the side of caution given the child’s currently more stable environment, might be sustainable under a best interest standard. § 751.05, Fla. Stat. (modification of an order granting temporary custody is permissible “if the parties consent or if modification is in the best interest of the child.”).

A trial court, however, has no discretion and must grant petitions to terminate temporary custody, even if opposed by a child’s current caretakers for good reasons, if the parent is deemed “fit.” § 751.05(6), Fla. Stat. (“court shall terminate the [temporary custody] order upon a finding that the parent is a fit parent[.]”). Because no abuse, abandonment or neglect, as defined by law, has been shown, a transfer to the mom is required at this time.

      . Ms. Seilkop consented to the petition for temporary custody filed by the Barkers, and a default was entered against the child’s father after he failed to respond to the petition.


text:
    Karen GOSLIN, Former Wife, Appellant, v. Gregory James PREISSER, Former Husband, Appellee.
    No. 1D14-1608.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2014.

      Michael B. Jones of The Wheelock Law Firm, LLC, Orlando, for Appellant.
    Charles H. Williams, Panama City, for Appellee.
   PER CURIAM.

Appellant, the former wife, seeks review of a non-final order denying her motion to compel Appellee, the former husband, to undergo an independent psychosexual evaluation as part of an ongoing dispute over the timesharing schedule for the parties’ three minor children. We do not have jurisdiction to review the order by appeal because the order did not determine the parties’ timesharing rights. See Fla. R. App. P. 9.130(a)(3)(C)(iii); Pool v. Bunger, 43 So.3d 837, 838 (Fla. 1st DCA 2010). We do not have jurisdiction to review the order by certiorari because the order merely denies a discovery request and any resulting harm can be remedied on appeal. See Eutsay v. State, 103 So.3d 181,182 (Fla. 1st DCA 2012) (“Unlike situations where a trial court erroneously compels the exchange of information (the proverbial ‘cat out of the bag1 orders), the harm done by the failure to provide information can be corrected on appeal in most cases.”); Boyd v. Pheo, Inc., 664 So.2d 294, 295 (Fla. 1st DCA 1995) (“[T]his court has adhered to the view that orders having the effect of denying discovery are almost invariably not reviewable by certiorari because of the absence of irreparable harm.”). Accordingly, we dismiss this appeal for lack of jurisdiction.

DISMISSED.

PADOVANO, WETHERELL, and MAKAR, JJ., concur.