author: ALTENBERND, Judge.

text:
    John R. BENNETT, Petitioner, v. STATE of Florida, Respondent.
    No. 2D08-4028.
    District Court of Appeal of Florida, Second District.
    Nov. 25, 2009.

      Darren Finebloom of Finebloom & Hae-nel, P.A., Sarasota, for Petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Tonja R. Vickers, Assistant Attorney General, Tampa, for Respondent.
   ALTENBERND, Judge.

John R. Bennett seeks certiorari review of a circuit court’s appellate decision reinstating a DUI charge against him in county court. The county court had dismissed the DUI charge because either a deputy sheriffs video camera failed to record the roadside field sobriety test or the digital recording system in the sheriffs office failed to preserve the recording. The circuit court reversed this order, concluding that the case was controlled by the holding in State v. Betts, 659 So.2d 1137 (Fla. 5th DCA 1995), and that the county court had mistakenly treated dicta in State v. Powers, 555 So.2d 888 (Fla. 2d DCA 1990), as a holding from this court. As further explained in this opinion, in light of the decisions in Samborn v. State, 666 So.2d 937, 938 (Fla. 5th DCA 1995), and State v. Davis, 14 So.3d 1130 (Fla. 4th DCA 2009), we conclude that the circuit court did not depart from the essential requirements of the law in reaching this decision and in remanding the case to the county court where this complex issue can be explored in greater detail.

The issue in this case — at least at the county court level — is what, if any, sanction should be imposed upon the State when it attempts to create physical evidence for use in a criminal proceeding, under circumstances where it has no legal duty to create that evidence, and in the process of preparing that physical evidence, it inadvertently destroys the preliminary work or data and is unable to produce the desired evidence for use at trial

At the conclusion of this opinion, we provide a lengthy discussion — in dicta — of the decisions by the Florida supreme court in State v. Sobel, 363 So.2d 324 (Fla.1978), and Kelley v. State, 486 So.2d 578 (Fla.1986) (Kelley I), and of the decisions of the U.S. Supreme Court in California v. Trombetta, 467 U.S. 479, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984), and Arizona v. Young-blood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), that form the starting point for any analysis of the above-referenced issue. It appears to us that the analysis of the issue may be somewhat different under Sobel than under Young-blood. An examination of cases from around this country also suggests that other courts have not settled on a single analytical structure for the resolution of this issue.

At least in this case, which involves the loss of an opportunity to present a video recording of a field sobriety test, there can be little doubt that a recording would have been “relevant” to establish a “material” fact as those terms are defined in section 90.401, Florida Statutes (2007), of the evidence code. The decisions related to this issue, however, discuss a concept of “constitutional materiality” that seems more complex. The analysis in Youngblood creates different outcomes depending on whether the lost evidence is “materially exculpatory” or “potentially useful.” 488 U.S. at 57-58,109 S.Ct. 333.

A serious difficulty in the analysis of this problem arises because, although it is obvious that a recording of the field sobriety test would be very relevant to a material fact at a trial on the charge of DUI, it is usually very difficult to determine whether this evidence would have been inculpatory, exculpatory, or inconclusive. It does not appear that the U.S. Supreme Court intends to require dismissal of criminal charges merely because evidence that would be relevant under the rules of evidence has been lost. On the other hand, it is not entirely clear in Florida who has the burden of proof and persuasion within this due process analysis when it comes to deciding whether the missing evidence would be “exculpatory” or “potentially useful.”

Admitting that our suggestion is only dicta, at least in the case of potential evidence that is accidently destroyed when the State has no legal obligation to create the evidence, we are inclined to believe that before lost evidence is declared to be “material exculpatory evidence,” the defendant should have a threshold burden to persuade the trial court, perhaps by the preponderance of the evidence, that (1) the lost opportunity to present relevant evidence involved evidence that would have created a reasonable probability that the outcome of the proceeding would have been different, and (2) the defendant did not have an adequate alternative method to provide comparable evidence. Only after such a threshold showing would the burden shift to the State to prove that the defendant had not been prejudiced. Whether dismissal is the only adequate sanction for an inadvertent loss of material exculpatory evidence is an issue that may require case-by-case analysis for which we suggest no solution — even in dicta.

Accordingly, this case presents a challenge to the county court, but it is obvious that the circuit court did not depart from the essential requirements of the law in sending the matter back for more consideration.

I. The Proceedings in the County and Circuit Courts

A deputy sheriff stopped Mr. Bennett while he was operating a motorcycle on July 3, 2007, at 10:11 p.m. The stop ultimately resulted in the State’s charging Mr. Bennett with DUI. Mr. Bennett and the deputy provided substantially different versions of the stop at a hearing on a motion to dismiss the charges.

The deputy testified that a passing driver told him that Mr. Bennett was weaving in his lane. After observing Mr. Bennett driving erratically, the deputy stopped him. Mr. Bennett admitted that he had had three beers on an empty stomach. Mr. Bennett smelled of alcohol and had slurred speech. The deputy conducted a field sobriety test and filled out the standard form documenting Mr. Bennett’s poor performance on that test. The deputy arrested Mr. Bennett and transported him to the county jail, where Mr. Bennett refused to provide a breath sample.

Mr. Bennett testified that he told the deputy that he had had three beers hours earlier. He said that he did quite well on the field sobriety test, that he had not made certain statements the deputy claimed he made, and that his speech was not slurred.

There is no dispute that the deputy be- ■ lieved that he recorded the stop and the field sobriety test on a digital video camera that was mounted on the cage inside his police car. The camera had a red light that indicated when it was functioning and recording. The deputy testified that the light was on during this stop. The camera worked by recording data onto a removable storage device. The deputy would later transfer the data to a DVD using equipment in the sheriffs office. The deputy testified that this equipment, which has since been replaced, malfunctioned with some frequency. For whatever reason, no video of this stop could be transferred to a DVD, and the data on the removable storage device was apparently lost in the attempt to transfer it. No one suggests, and the county court did not find, that the deputy did anything intentionally to destroy the evidence.

In its order of dismissal, the county court found that the video camera was functioning that night and recorded the stop onto the removable storage device but that the recording was subsequently lost in the effort to transfer it. This is the most likely explanation, but it is also possible that the camera malfunctioned and recorded nothing. The circuit court recognized this possibility in its opinion. Under either factual circumstance, however, the county court’s analysis of the case was incorrect and the circuit court’s analysis was correct.

The county court correctly found that if a -video recording of the stop existed, it would be material evidence in the case. The county court then determined that Mr. Bennett had been prejudiced by the loss of this evidence because it might corroborate his version of the events. The county court concluded that the accidental loss of the data on the digital storage device was a due process violation that warranted dismissal of the case without any further examination of the evidence. The county court explained that it did not need to decide whether the deputy acted in good or bad faith because, once the evidence was lost, the State was required to prove that the loss had not been prejudicial to the defendant, and the State could not prove a lack of prejudice under the competing factual claims in this case. This decision was strongly influenced by our earlier decision in Powers.

In reversing the county court, the circuit court briefly explained that the county court failed to determine whether the video recording would have been exculpatory evidence. It emphasized that the video footage had been lost due to a “technical failure” and not an intentional act. It relied on Betts, which held that the failure of a video camera to operate, without more, did not constitute a due process violation, and concluded that Mr. Bennett had not established a due process violation. 659 So.2d at 1137.

II. The Narrow Standard of Review in a Certiorari Proceeding Reviewing an Appellate Decision from a Circuit Court

In reviewing the order, we are limited to determining whether the circuit court afforded Mr. Bennett procedural due process and whether it “applied the correct law” or “departed from the essential requirements of law.” See Dep’t of Highway Safety & Motor Vehicles v. Stenmark, 941 So.2d 1247, 1249 (Fla. 2d DCA 2006). A “departure from the essential requirements of the law” necessary for the issuance of a writ of certiorari is something more than a simple legal error. See Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). Instead, a district court should exercise its discretion to grant certiorari review only when “there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995).

Admittedly, the case relied upon by the circuit court, Betts, provides little analysis to support its holding. However, in a similar case, Sambom, the Fifth District denied a petition for certiorari review of a circuit court decision that reinstated a DUI charge against the petitioner in county court. 666 So.2d at 938. The petitioner challenged the local sheriffs office policy of destroying potentially exculpatory maintenance testing results on its breath-testing machines. Id. at 937-38. Although the circuit court upheld the county court’s findings, it reversed the decision, concluding that the county court had not utilized a proper legal analysis. Id. at 938. “The circuit court explained that, in determining whether the loss or destruction of potentially exculpatory evidence constitutes a due process violation, a trial court must apply the tests established in [Trombetta) and [Youngblood ].” Id. Applying these tests, the Fifth District concluded that it had no basis to grant certiorari relief. Likewise, in this case, we conclude that this court should deny certiorari relief.

Recently, the Fourth District reviewed a circuit court’s decision to dismiss a felony DUI charge because of the loss of a video recording of a field sobriety test. See Davis, 14 So.3d at 1131. In Davis, the data appears to have been lost in essentially the same manner as it was lost in this case. Id. Accordingly, the Fourth District in Davis was procedurally in a similar position to the circuit court in this case. Like the circuit court in this case, the Fourth District reversed the trial court and remanded for further proceedings. Id. The analysis in Davis, however, was distinctly different from the analysis in the circuit court opinion that we review today.

The Fourth District recognized that the due process analysis of a loss of evidence is different when the evidence is “material exculpatory evidence.” Id. at 1132. Relying heavily on a case from Oregon, the Fourth District decided that the lost evidence at issue was “material,” but nevertheless reversed the trial court because it decided that dismissal was too harsh a sanction. Id. It left it to the trial court to determine what lesser sanction would be appropriate. Id. at 1134.

We are troubled by aspects of the decision in Davis. First, the decision implicitly assumed that the lost video recording would have supported the defendant and not the officer’s version of the events. Perhaps something in the record supported that conclusion. It seems to this court that such a recording could be either very prejudicial to the defendant as incul-patory evidence in some cases, very helpful to the defendant as exculpatory evidence in other cases, and — perhaps most often— possibly useful to both sides.

The analysis in Davis relied on the Florida decisions in Sobel and Kelley I that are discussed later in this opinion, but made no reference to the U.S. Supreme Court’s decisions in Trombetta and Youngblood. As we discuss later, the analysis in Sobel predates Youngblood. The loss of evidence in this case seems more likely to be a loss of “possibly useful” evidence under the analysis in Youngblood, which would require a far different analysis.

Despite our concerns with the Fourth District’s analysis, it is precedent supporting the circuit court’s decision to reverse the order of dismissal. The circuit court’s decision, although holding that the defendant had not established a due process violation, did not preclude the defendant from seeking to prove such a violation on remand. The circuit court’s decision also would not preclude the county court from selecting a lesser sanction as authorized by Davis. Given that the county court was misled in its analysis by the dicta from this court, we cannot say that the circuit court departed from the essential requirements of the law in this case and note that the defendant continues to have avenues to challenge this issue in the county court.

III. This Court’s Coutribution to the County Court’s Error

In dismissing the charges against Mr. Bennett, the county court’s decision gave great weight to language found in Powers. In Powers, this court held that the failure of a sheriffs department to have a policy of videotaping field sobriety tests did not warrant the dismissal of a DUI charge where no recording had ever occurred. 555 So.2d at 891. At the beginning of the legal analysis, we considered a hypothetical case in which a recorded tape was not preserved. Id. at 889. We stated:

Based upon the record presented to us, if the appellees’ performances had been video taped and the tape had not been preserved, we would affirm the trial court’s dismissal of the charges filed against the appellees without having to consider the good or bad faith of the sheriffs department. An accused’s due process rights are violated, irrespective of the good or bad faith of the prosecution, if the prosecution suppresses material evidence favorable to the accused.

Id. at 889-90 (citation omitted). It is possible that the record in Powers warranted this assurance. Unfortunately, our unqualified assurance of a reversal-free dismissal seems to have been an overstatement. The Fourth District appropriately criticized this portion of Powers in Davis. The above-quoted language should not be regarded as a holding by this court.

IV. An Overview of Relevant Case Law

When a case comes to the district court as a certiorari proceeding and the district court declines to issue a writ and to quash the order on review, our holding is normally quite narrow. We decide only whether the circuit court provided due process and did not depart from the essential requirements of the law. There is a natural tendency, however, for the district court to wish to discuss the underlying legal issue and sometimes to disguise that discussion as if it were the holding in the case. See Dep’t of Highway Safety & Motor Vehicles v. Nader, 4 So.3d 705, 709 (Fla. 2d DCA 2009). In this case, we have concluded that the county court on remand might benefit from our discussion, but we make no pretense that our discussion is a holding. The issue in this case is a difficult issue with constitutional dimensions and it is an issue in which the law is almost certainly evolving. The proceedings in the county court on remand may be part of that evolution.

The theory that the State has a constitutional duty to provide helpful evidence to the defendant, much less to maintain or create such evidence, is a theory of relatively recent recognition. The discussion usually begins with the holding in Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), stating that, without regard to the good faith or bad faith of the prosecutor, the prosecution’s failure to produce existing evidence when requested by the defendant violates due process when the evidence is material either to guilt or punishment. That holding was made in the context of a case in which only the penalty phase of a capital case was remanded for new trial when the prosecution failed to disclose an existing confession by a codefendant in which the code-fendant admitted that he had been the actual murderer. Id. at 84-85, 83 S.Ct. 1194. Brady did not involve lost evidence, and the due process violation did not require a dismissal of the prosecution.

Thereafter, in Florida, several decisions were issued involving evidence that had been inadvertently lost. In Farrell v. State, 317 So.2d 142 (Fla. 1st DCA 1975), law enforcement officers taped conversations during a drug transaction. They apparently did not regard such tapes as admissible evidence and were regularly reusing the tapes in other investigations. Id. at 143. Thus, the tape in Mr. Farrell’s case had been erased. Id. Treating the inadvertently erased taped similarly to the written confession that still existed in Brady, the court held that the information must be dismissed. Id. at 144. A special concurrence in Farrell pointed out that the State had stipulated that the tapes would have been beneficial to the defendant in that case. Id. It is also important to note that the tape in Farrell was destroyed after the defendant had filed his demand for discovery in the criminal case. Id. at 143-44.

In State v. Smith, 342 So.2d 1094 (Fla. 2d DCA 1977), this court considered a case in which a similar tape recording of a drug transaction was misplaced. The trial court dismissed the action based on Farrell and Brady. Id. at 1095. We reversed the dismissal, explaining that dismissal was an extreme sanction and there had been no evidence that the tape “contained material favorable to” Mr. Smith. Id. We instructed the trial court on remand to determine if the tape was indeed Brady material and, if necessary, to determine the State’s culpability before imposing a sanction under the sanction provision in Florida Rule of Criminal Procedure 3.220. Id. Our opinion does not explain who will have the burdens of proof and persuasion in the trial court.

In Wiese v. State, 357 So.2d 755 (Fla. 4th DCA 1978), the Fourth District considered a case in which the defendant and a man named Smith had allegedly been the getaway drivers for a group of armed robbers. Smith gave a sworn written statement and the State had recorded the interview at which he agreed to give the written statement. Id. at 757. The State did not provide the tape in discovery and it was later destroyed. Id. When defense counsel discovered this problem during trial, the court conducted a Richardson hearing at which the State established that the written statement and the lost tape were consistent and, thus, the defendant had not been prejudiced. Id. at 757-58. The opinion placed the burden of proof on the State, but did so within the context of a Richardson hearing in what appears to have been a conceded discovery violation. Id. at 758.

With these cases as background, the Florida Supreme Court considered Sobel, in which the defendant had been convicted of the sale or delivery and possession of a controlled substance. 868 So.2d at 325. The police tape recorded the drug transaction in which the defendant sold the drugs to a confidential informant and an undercover officer posing as the Cl’s girlfriend. Id. at 326. However, when an officer tried to play back the audio recording, he “heard only noises and static[,] nothing clear from which he could make any sense.” Id. Apparently, the transmitter and receiver used to record the drug transaction did not work. The department did not save the tape; instead, the officer put it into the office’s reusable tape bin. Id. The trial court had conducted a pretrial evidentiary hearing and refused to dismiss the charges because it concluded the defendant had not been prejudiced. The Third District reversed that ruling and the State appealed. Id.

When the case reached the supreme court, it began its analysis with Brady, even though it appears that the officer had placed the poor quality recording in the reusable bin on the same day as the drug transaction. Id. The trial court had accepted the testimony of the officer that the tape was almost entirely unintelligible. Thus, it is not entirely clear that any Brady evidence ever existed to be maintained or produced by the State in Sobel. The supreme court did not consider this possibility.

The court then discussed whether the lost tape would have been material. Id. at 326-27. It relied extensively on United States v. Agurs, 427 U.S. 97, 109-10, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), quoting, “[t]he mere possibility that an item of undisclosed information might have helped the defense, or might have affected the outcome of the trial, does not establish ‘materiality’ in the constitutional sense.” Id. Thereafter, it explained that “[t]he lost tape here had major potential importance to the question of guilt or innocence, since it might have enabled appellants to contradict the testimony of the undercover agent involved in the narcotics transaction.” Id. at 327. Given that the court recognized that the tape had been almost entirely unintelligible, despite the discussion of materiality, it is not entirely clear that the court actually ruled on whether this tape was constitutionally material. Instead, it chose the easiest path to resolve the case. It held that “a defendant is not denied due process where the contents of a lost or destroyed tape recording would not have been beneficial to the accused, thus demonstrating a lack of prejudice.” Id. at 328. It seemed to place the burden on the State to show this lack of prejudice, as the Fourth District had in Wiese, without ever considering that its holding might actually have been a decision that the defendant failed to establish that the poor quality tape had been constitutionally material in the first place.

Shortly after Sobel, the court upheld the conviction and death penalty imposed upon the defendant in Salvatore v. State, 366 So.2d 745 (Fla.1978). Salvatore involved a lost tape recording of a statement that a codefendant had given to the police. Id. at 750. The court placed the burden on the defendant to establish that he had been prejudiced, explaining that the “standard of prejudice which must be met by defendant in order to obtain a new trial varies inversely with the degree to which the conduct of the trial has violated fundamental notions of fairness.” Id. at 751.

In 1984, the U.S. Supreme Court issued its decision in Trombetta, 467 U.S. 479, 104 S.Ct. 2528. In that case, the defendants had been stopped for driving while intoxicated and each had submitted a breath sample for analysis by a breath testing machine. Id. at 482, 104 S.Ct. 2528. The police arguably did not lose or destroy evidence; they simply did not have a policy of maintaining a portion of the breath sample for a future second analysis. Id. at 482-83, 104 S.Ct. 2528. Each defendant filed a motion to dismiss the charges, alleging that the officers erred in not preserving them breath samples. Id. They contended that the breath samples would have allowed them to impeach the incriminating breath test results. Id. at 483, 104 S.Ct. 2528.

In rejecting the defendants’ claim that failure to preserve their breath samples violated their due process rights, the Court acknowledged the lack of precedent addressing a State’s duty to preserve evidence. Id. at 487, 104 S.Ct. 2528. The Court wrote that:

We have, however, never squarely addressed the government’s duty to take affirmative steps to preserve evidence on behalf of criminal defendants. The absence of doctrinal development in this area reflects, in part, the difficulty of developing rules to deal with evidence destroyed through prosecutorial neglect or oversight. Whenever potentially exculpatory evidence is permanently lost, courts face the treacherous task of divining the import of materials whose contents are unknown and, very often, disputed. Moreover, fashioning remedies for the illegal destruction of evidence can pose troubling choices. In nondisclosure cases, a court can grant the defendant a new trial at which the previously suppressed evidence may be introduced. But when evidence has been destroyed in violation of the Constitution, the court must choose between barring further prosecution or suppressing — as the California Court of Appeal did in this case — the State’s most probative evidence.

Id. at 486-87, 104 S.Ct. 2528. The Court explained that the duty to preserve evidence is limited to “evidence that might be expected to play a significant role in the suspect’s defense,” and equated this to a standard of “constitutional materiality.” Id. at 488-89, 104 S.Ct. 2528. It defined “constitutional materiality” as evidence that possesses “an exculpatory value that was apparent before the evidence was destroyed,” and which is “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489, 104 S.Ct. 2528. It concluded that the State has an affirmative duty to preserve only material exculpatory evidence and that the mere possibility that lost or destroyed evidence could have exculpated the defendant is not enough to satisfy this definition. Id. Ultimately, it held that the Due Process Clause did not require law enforcement to preserve the breath samples. Id. at 491, 104 S.Ct. 2528.

Two years later, the Florida Supreme Court issued Kelley I, 486 So.2d 578, which discussed Brady, Agurs, and Sobel, but did not make any references to Trombetta. In Kelley I, the State had destroyed evidence from an old murder investigation because it appeared that there was insufficient evidence to proceed against the defendant, William Kelley. Id. at 579. However, when a witness came forward and agreed to testify against the defendant, the State charged him with murder and went to trial without the destroyed evidence. After he was convicted and sentenced to death, he appealed, arguing that the State’s destruction of the evidence violated his due process rights and hindered his ability to defend himself. Id. Applying the balancing test announced in Sobel and Salvatore, the supreme court rejected his claim, concluding that the State was not negligent in destroying the evidence and had sufficiently established that its actions had not prejudiced the defendant. Id. at 581-82. In adjacent paragraphs, the opinion notes that “[f]airness dictated that the burden be placed on the state to prove lack of prejudice to the defendant” in Sobel, and that “[t]he standard of prejudice which must be met by the defendant” was not met in Salvatore. Id. at 581.

The destroyed evidence in Kelley I was a bullet, a bloody bedsheet, and a shred of the victim’s shirt. Id. at 580. If the supreme court had used the analysis in Trombetta, it seems likely that it could have held that the exculpatory value of this evidence was not evident at the time it was destroyed and the destroyed evidence had not been material exculpatory evidence.

Finally, after Sobel and Kelley I, the United States Supreme Court decided Youngblood, 488 U.S. 51, 109 S.Ct. 333. In Youngblood, the Arizona Court of Appeals reversed the child molestation, sexual assault, and kidnapping convictions against a defendant because the State failed to preserve semen samples from the victim’s body and clothing. 488 U.S. at 52, 109 S.Ct. 333. The victim was ten years old and did not know the perpetrator. Id. The defendant had been identified by the young victim from a photographic lineup. Id. at 53,109 S.Ct. 333. The appeals court noted that identity was an issue at trial and said that the evidence could have exonerated the defendant if preserved. Id. at 54-55, 109 S.Ct. 333. It concluded that the unpreserved evidence was material to the defendant and its loss impugned his due process rights. Id. at 54, 109 S.Ct. 333.

The U.S. Supreme Court disagreed. It noted that the unpreserved evidence had a likelihood of exonerating the defendant, but determined that its loss did not warrant reversal of the convictions. Id. at 56, 109 S.Ct. 333. It concluded the evidence was only potentially exculpatory and “[t]he possibility that the semen samples could have exculpated [the defendant] if preserved or tested [was] not enough to satisfy the standard of constitutional materiality in Trombetta.” Id. The Court wrote that “the Due Process Clause requires a different result when we deal with the failure of the State to preserve evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 57, 109 S.Ct. 333. It then concluded that a defendant must show bad faith loss or destruction of potentially useful evidence to establish a denial of due process. Id. at 58, 109 S.Ct. 333.

Interestingly, in 1990, William Kelley’s death sentence was reviewed again by the Florida Supreme Court in a postconviction proceeding. See Kelley v. State, 569 So.2d 754 (Fla.1990) (Kelley II). This time, the supreme court was aware of Youngblood. Instead of the long analysis that it had provided in the direct appeal, the court merely noted that, in the absence of bad faith, it was not a violation of due process if the police failed to preserve potentially useful evidence. Id. at 756. This appears to confirm that the analysis in the direct appeal would have been based on Trombet-ta if the court had considered that case.

After Trombetta and Youngblood, Florida courts began analyzing lost or destroyed evidence cases to determine whether the evidence at issue was either material exculpatory evidence or potentially useful evidence that did not involve a due process violation in the absence of bad faith on the part of the State. See, e.g., State v. Larrinaga, 569 So.2d 911 (Fla. 5th DCA 1990).

Thus, by the time the Fifth District considered the petition for certiorari in Sambom, it was entirely appropriate for the circuit court to reverse the county court. The county court had used an analysis relying on Sobel and Kelley I that was no longer accurate under Trombetta and Youngblood. Sambom, 666 So.2d at 938. The circuit court properly required the reinstatement of DUI charges against the defendant in Sambom because the destroyed evidence was only potentially exculpatory and its inadvertent loss did not violate the defendant’s due process rights. Id.

Y. Differing Approaches to the Issue

We provide the preceding, admittedly didactic, discussion of the case law to support at least two significant observations. First, this is an area of the law in which it is not safe merely to find an older precedent and rely upon a sentence or two from that case to justify the outcome in a current case. Although the Florida Supreme Court has never expressly recognized that its analysis in Sobel is significantly affected by Youngblood, it is obvious that it has been so affected.

Second, there are significant issues involving the implementation of Youngblood that are not well resolved in Florida, the most significant being whether the State or the defendant has the burden to establish that the lost evidence is material exculpatory evidence or potentially useful evidence.

A review of other jurisdictions reveals that the inadvertent destruction of evidence after Youngblood is addressed in differing ways. In Davis, 14 So.3d at 1132, the Fourth District relied on an Oregon case to supports its decision. See State v. Zinsli, 156 Or.App. 245, 966 P.2d 1200 (1998). Oregon clearly places the burden on the defendant to show the “fa-vorableness” of the evidence when the state has not acted in bad faith. Id. at 1204.

Here, defendant concedes that the state did not act in bad faith in failing to preserve the videotape. Thus, defendant has the burden of showing that there was a reasonable likelihood that the videotape would provide evidence that would be favorable to a material element of his defense and that he can not obtain comparable evidence through other reasonable means.

Id. In Zinsli, the court explained that the police in that case admitted that the defendant had performed well on aspects of the field sobriety test. Id. Thus, the Oregon court held that the defendant had carried his burden to establish that the lost videotape was material exculpatory evidence. Id. Even in that context, the Oregon court believed that sanctions less than dismissal were appropriate and remanded for further proceedings. Id. at 1205. Given the Fourth District’s reliance on this case in Davis, we assume that Davis involved a situation where the tape admittedly contained evidence favorable to the defendant. In this case, of course, that is a hotly disputed issue.

A recent decision in Ohio involved a similar loss of a video recording of a traffic stop. See State v. Piper, 2008 WL 170666 (Ohio Ct.App. Jan. 11, 2008). Although relying on Ohio cases, the court provided an excellent analysis for determining when a state’s failure to preserve evidence violates a defendant’s right to due process of the law. Id. at *1-3. The court cited Youngblood for the proposition that there is a difference between failing to disclose “material exculpatory evidence” and failing to preserve evidence “of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at *1. The court stated that:

[T]he Youngblood court established two tests: one that applies when the evidence is “materially exculpatory” and one that applies when the evidence is “potentially useful.” If the state fails to preserve evidence that is materially exculpatory, the defendant’s rights have been violated. However, evidence is material only if there is a reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Stated in other words, [t]o be materially exculpatory, evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. This court has consistently held that the burden of proof is on the defendant to show the exculpatory nature of the destroyed evidence.
If, on the other hand, the state fails to preserve evidence that is potentially useful, the defendant’s rights have been violated only upon a showing of bad faith. The term “bad faith” generally implies something more than bad judgment or negligence. It imports a dishonest purpose, moral obliquity, conscious wrongdoing, breach of a known duty through some ulterior motive or ill will partaking of the nature of fraud. It also embraces actual intent to mislead or deceive another.

Id. at *2 (citations and internal quotations omitted). Based on this analysis, the court concluded that there was no bad-faith destruction of evidence and the lower court properly denied the defendant’s motion to dismiss. Id. at *5.

Since Trombetta and Youngblood, most Florida decisions appear to place the initial burden of proof and persuasion on the defendant to prove that the lost evidence was material exculpatory evidence. See, e.g., State v. Muro, 909 So.2d 448, 455 (Fla. 4th DCA 2005) (finding that the defendant failed to establish that the destroyed evidence was exculpatory more than potentially useful); State v. Erwin, 686 So.2d 688, 689 (Fla. 5th DCA 1996) (reversing motion to suppress because the defendant “was required to show bad faith upon the part of the state in destroying the evidence”). Nevertheless, the burden of proof established in Sobel has never been withdrawn by the supreme court.

VI. Conclusion

On remand in the county court, the arguably unresolved issue of who has the burden of proof and persuasion may be important. If the semen at issue in Youngblood, which even in 1988 could have produced evidence excluding the defendant as the perpetrator, was not material exculpatory evidence to refute the young victim’s identification because the outcome of tests on that semen was unknown and, thus, its value as exculpatory evidence was unknown, it would seem that a videotape of a field sobriety test is likewise not material exculpatory evidence unless the police admit that it contained evidence that supported the defendant’s theory that he was sober. Until recent years, DUI cases were often a contest of credibility between the officer and the operator, and that contest did not create a due process issue. Thus, if Mr. Bennett is ultimately determined to have the burden of proof and persuasion on the issue of whether the lost videotape was exculpatory evidence, it would seem that he may need to convince the trial judge that he is telling the truth and the police officer is not.

The petition for writ of certiorari is denied.

CASANUEVA, C.J., Concurs.

KHOUZAM, J., Concurs in result only.

      . The record contains limited evidence. This description relies extensively on the arrest report.

      . As discussed later, the Oregon case relied on by the Fourth District did involve a lost videotape that provided favorable evidence for the defendant.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . In 1985, the U.S. Supreme Court expanded Brady to apply to evidence in the possession of the government and not merely to evidence in the possession of the prosecutor, but not in the context of data that was inadvertently lost by law enforcement. See United States v. Bag-ley, 473 U.S. 667, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). Bagley also refined the definition of "materiality” in a nondisclosure case to require a showing of a reasonable probability that the nondisclosed evidence would have altered the result of the proceeding. Id. at 682, 105 S.Ct. 3375.

      . For a discussion of the alternative approaches states have taken in adopting or rejecting Youngblood, see Norman C. Bay, Old Blood, Bad Blood, and Youngblood: Due Process, Lost Evidence, and the Limits of Bad Faith, 86 Wash. Univ. L.Rev. 241, 287-96 (2008).

      . Other states treat the loss or destruction of potentially exculpatory evidence of this type similarly. See, e.g., State v. Beltz, No. 98390, -Kan.App.2d-, 184 P.3d 286, 2008 WL 2251236 (Kan.Ct.App. May 30, 2008) (finding that the trial court erred in dismissing a DUI charge against the defendant because the defendant did not show that the State destroyed the video recording of his traffic stop in bad faith) (unpublished opinion); State v. Wolf,
        No. 2008 AP451-CR, 314 Wis.2d 748, 2008 WL 4630368 (Wis.Ct.App. Oct. 21, 2008) (affirming conviction for driving while intoxicated despite the State's loss of the video recording of the defendant's field sobriety test) (unpublished opinion); State v. Casselman, 141 Idaho 592, 114 P.3d 150, 153 (2005) (requiring a showing of bad faith in order to establish that the defendant's due process rights were violated when the police were unable to retrieve photographs after downloading them from a digital camera). Like these other states, Florida courts have consistently held that that the loss of the type of evidence in this case falls within the ambit of potentially useful evidence and requires bad faith on the part of the police to establish a due process violation. See, e.g., State v. Gomez, 915 So.2d 698, 701 (Fla. 3d DCA 2005) (finding no denial of due process after police lost booking photographs because the photographs were not material exculpatory evidence and police did not intentionally destroy them); State v. Thomas, 826 So.2d 1048, 1049-50 (Fla. 2d DCA 2002) (reversing dismissal of charges against the defendant after the State misplaced the video of the drug transaction because the recording was only "potentially useful” and the defendant failed to establish that the police acted in bad faith); Merck v. State, 664 So.2d 939, 943 (Fla.1995) (concluding that the police's failure to preserve clothing found during the murder investigation was not a due process violation because the defendant could not prove bad faith).

      . We cannot avoid noting the irony that the potential evidence most likely to prove Mr. Bennett's innocence would have been the breath test that he chose not to provide.


source: Caselaw Access Project

author: BROWNING, JR., EDWIN B., Senior Judge.

license: Public Domain

text:
    VILLA CAPRI ASSOCIATES, LTD., Appellant, v. FLORIDA HOUSING FINANCE CORPORATION, Appellee.
    No. 1D08-5235.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Michael P. Donaldson and Christine Davis Graves, of Carlton Fields, P.A., Tallahassee, for Appellant.
    Wellington H. Meffert, II, General Counsel and Robert J. Pierce, Assistant General Counsel, Tallahassee, for Appel-lee.
   BROWNING, JR., EDWIN B., Senior Judge.

Appellant seeks review of an order from the Florida Housing Finance Corporation (Florida Housing) which rejected Appellant’s application for funding to build affordable housing. Appellant argues that Florida Housing impaired the fairness of the proceeding below by failing to index an order in a previous case and post it to the public. Appellant contends that the previous decision was relevant and could have changed the outcome of the case had Appellant and the hearing officer had benefit of the decision. We agree and reverse on this issue.

Florida Housing administers various affordable housing programs, including Multifamily Mortgage Revenue Bonds (MMRB) and State Apartment Incentive Loan (SAIL). Because the demand for funding exceeds that which is available, qualified affordable housing developments must compete for this funding. To assess the relative merits of proposed developments, Florida Housing has established a competitive application process known as the Universal Cycle pursuant to Florida Administrative Code Chapters 67-21 and 67-48.

Appellant provides affordable rental housing units and applied to Florida Housing for funding in 2008. Appellant sought $12,000,000 in MMRB funds and $3,700,000 in SAIL funds to help finance the construction of a 160-unit apartment complex in South Florida named Villa Capri Apartments. Appellant submitted a timely application, identifying the development as located in Miami; the application deadline was April 7, 2008.

On May 7, 2008, Florida Housing awarded Appellant a preliminary score of 66 points out of 66 possible points and 7.5 points out of 7.5 possible “tie-breaker” points (awarded for proximity to certain services and facilities). Florida Housing, however, concluded that Appellant failed the threshold requirement regarding availability of electricity for the following reason:

The Applicant provided a letter from FPL as evidence of the availability of electricity; however, the letter contains conflicting information. Although the letter refers to the correct Development Name and street address, it refers to the city as Homestead rather than Miami.

Appellant submitted timely cure materials to Florida Housing in response to the threshold failure. The cure documentation contained a letter from FPL dated May 30, 2008, which reflected a Miami address and stated that electricity was available to the site “at the present time.” Florida Housing determined that the cure was deficient because the letter did not specifically state that the service was available to the site on or before the application deadline as required.

Appellant petitioned for an informal hearing. The issue for the hearing was whether Appellant’s application met threshold requirements with respect to the availability of electrical infrastructure as of the application deadline date. Appellant argued at the hearing that the cure letter from FPL was not inconsistent with the original letter demonstrating an electrical infrastructure. The cure letter only addressed a location change to be consistent with the application. Appellant stated that neither the address in the cure letter nor the address in the application was incorrect; the project was located in an unincorporated portion of Miami-Dade County, approximately the same distance from Homestead as Miami. Florida Housing, however, contended that the cure letter replaced the original letter concerning verification of infrastructure. Thus, the cure letter was the only operative document for that purpose and did not demonstrate that electricity was available on or before the application deadline because it stated “at the present time.”

The informal hearing officer stated that there was confusion as to whether the correct address of the project was Miami or Homestead. The hearing officer stated that Appellant’s position was “attractive” and, more than likely, reflected that electricity was in fact available before the deadline as stated in the initial letter. However, to accept the argument would be to disregard the adopted rules which governed the proceeding, Florida Rules of Administrative Procedure 67-21.003(6) and 67-48.006(6). By operation of the rules, Appellant’s cure letter replaced the initial document, and Appellant did not demonstrate that electricity was available as of the application deadline. Rules 67-21.003(13)(b) and 67-48.004(13)(b) required that Florida Housing reject an application if the applicant fails to achieve the threshold requirements. Therefore, the hearing officer held that Florida Housing properly rejected Appellant’s application for funding. Florida Housing adopted the findings of fact and conclusions of law set forth in the Recommended Order.

On appeal, Appellant contends that Florida Housing interpreted the cure rule differently in Eclipse West Associates, Ltd. v. Florida Housing Finance Corp., Case No. 2006-078RRLP (March 13, 2007). Because Florida Housing did not properly index this decision and make it available to the public electronically, the administrative process was impaired.

In Eclipse, Florida Housing held that Eclipse satisfactorily demonstrated that the application address satisfied the requirement of the 2006 Rental Recovery Loan Program application. Eclipse’s original application designated the project address as “located at the SE corner of NW Flagler Drive and NW 4th Street, Ft. Lauderdale.” Florida Housing initially determined that Eclipse failed to meet the threshold requirement regarding the address of the site because the stated address was incorrect_and inaccurate. NW Flagler Drive was not a valid street in Ft. Lauderdale; it was properly identified as Flagler Avenue.

Eclipse filed a cure document identifying the project by reference to “NW Flagler Avenue.” In order to complete the cure, Eclipse had to submit a verification form from FPL confirming the availability of electricity for the project. The FPL letter confirmed electricity as of the date of the letter. FPL had previously provided a letter verifying electricity prior to the application date. Florida Housing denied the application as failing to show infrastructure availability as of the application deadline.

The hearing officer found that Florida Housing’s rules did not require applicants to identify projects using street names found in any specific source of street name information. The rules also did not specify which name or version of a name was required in identifying an address. The hearing officer noted that the street on which the project was located was recognized by local government officials as either Flagler Avenue or Flagler Drive. The hearing officer concluded that the address provided in the application was acceptable. Therefore, there was no necessity for the cure documents to be filed. The issues relating to the FPL letter were moot. Florida Housing adopted the hearing officer’s findings and conclusions.

Section 120.53(l)(a), Florida Statutes (2008), provides that each agency shall maintain all final orders. The agency may provide these orders by a subject-matter index or by a searchable electronic database. § 120.53(l)(a)2., Fla. Stat. (2008); see also Fla. Admin. Code R. 67-52.003 (requiring Florida Housing clerk to maintain all final orders and a subject matter index on such orders). Final orders must be indexed or listed within 120 days after the order is rendered. § 120.53(l)(b), Fla. Stat. (2008). Florida Housing does not dispute that the Eclipse order was not properly listed or indexed as required by statute.

We hold that Florida Housing’s failure to list or index the Eclipse order properly was an error in procedure which impaired the fairness of the proceedings below. See Graham Contracting, Inc. v. Dep’t of Gen. Servs., 363 So.2d 810 (Fla. 1st DCA 1978) (stating that agency’s failure to maintain subject-matter index of its orders deprives general public, agency, and this court of the continuity and rationality such a resource would provide). Parties in an administrative proceeding have a right to locate precedent and have it apply as well as the right to know the factual basis and policy reasons for agency action. Amos v. Dep’t of Health and Rehabilitative Servs., 444 So.2d 43 (Fla. 1st DCA 1983). Had the Appellant known of the decision in Eclipse prior to the hearing, it could have raised the same legal arguments which were successful in Eclipse. Appellant should be allowed to rely on Florida Housing precedent in presenting its case to Florida Housing. An agency’s failure to follow its own precedent which contains similar facts is “contrary to established administrative principles and sound public policy.” Brookwood-Walton County Convalescent Ctr. v. Agency for Health Care Admin., 845 So.2d 223, 229 (Fla. 1st DCA 2003). Accordingly, we remand for Florida Housing to submit the instant case to a hearing officer to conduct a hearing to assess the applicability of Eclipse to this case.

REVERSED and REMANDED for further proceedings.

VAN NORTWICK and PADOVANO, JJ., concur.


author: CLARK, J.

text:
    STATE of Florida, Appellant, v. Cathy L. CARTER, Appellee.
    No. 1D09-702.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.

      Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Appellant.
    Jeremy Keich, Ramey & Bytel Attorneys, LLC, DeFuniak Springs, for Appel-lee.
   CLARK, J.

The State appeals the suppression of evidence obtained from a pharmacy by an investigating law enforcement officer. Because section 893.07(4), Florida Statutes, requires pharmacies to make controlled substance records available to law enforcement officers, and does not require pharmacies to notify the patient or withhold such records until a warrant is presented, the order granting the motion to suppress is reversed.

The police investigator obtained the records at issue while investigating a suspected “doctor shopping” violation. See § 893.13(7)(a)8., Fla. Stat. The pharmacy provided the records to the investigator pursuant to section 893.07(4), Florida Statutes. In both her motion to suppress and this appeal, Appellee asserted that the warrantless seizure of her prescription records violated her constitutional rights to privacy and to due process. She further argued that her pharmacy records could not legally be transmitted to law enforcement officers unless she was provided prior notice and the opportunity to consent or be heard. The trial court granted Appellee’s motion to suppress.

While a trial court’s ruling on a motion to suppress is accorded great deference on appeal, the suppression order on review is an erroneous application of the law. The facts surrounding the pharmacy records are not at issue. The application of the law to the facts is subject to this court’s de novo review. See Brye v. State, 927 So.2d 78 (Fla. 1st DCA 2006).

Florida legislative enactments do not supply a legal basis upon which to suppress the records at issue. To the contrary, section 893.07(4), Florida Statutes, requires pharmacies to maintain the records at issue here for a period of 2 years “for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.” The statute does not require a subpoena, warrant, or prior notice to the patient. The enactment of section 893.07 was an extension of war-rantless search and seizure power by the Legislature “as part of a major legislative revision of the Florida drug abuse laws.” Gettel v. State, 449 So.2d 413, 414 (Fla. 2d DCA 1984).

Section 465.017(2)(a), Florida Statutes, specifically addresses the release of controlled substance records maintained by a pharmacy. Release of such records to persons other than the patient is prohibited, “[ejxcept as permitted by” chapter 893, Florida Statutes. § 465.017(2)(a), Fla. Stat. The records at issue were obtained pursuant to chapter 893, Florida Statutes. If the Legislature intended to require pharmacies to notify patients in connection with section 893.07, the Legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities. See § 395.3025, Fla. Stat. (hospitals); §§ 400.0077 & 400.022(l)(m), Fla. Stat. (nursing homes); and § 456.057(7), Fla. Stat. (physicians). The cases advanced by Appellee, pertaining to the procedures for a hospital’s disclosure of medical records governed by section 395.3025, Florida Statutes, do not apply to the pharmacy records at issue in this appeal.

The federal Health Insurance Portability and Accountability Act (“HIPAA”) does not constitute a legal basis for suppression of the records at issue. HIPAA addresses privacy in “protected health information” by regulating the release of such information by specified “covered entities:” health plans, health care clearinghouses, and certain health care providers. 45 C.F.R. § 160.103; see also 42 U.S.C. § 1320d. “Covered entities” do not include law enforcement officers or prosecutors, and the conduct of these officials is not governed by HIPAA. See 45 C.F.R. §§ 160.102(a), 160.104(a); State v. Straehler, 307 Wis.2d 360, 745 N.W.2d 431 (2007) (HIPAA standards not applicable to police officers); State v. Downs, 923 So.2d 726 (La.App. 1st Cir.2005) (HIPAA standards not applicable to district attorney).

Even if HIPAA applied to determine whether the “property was illegally seized without a warrant,” pursuant to rule 3.190, Florida Rules of Criminal Procedure, no violation of HIPAA appears in the record on appeal. Among the permitted disclosures are “as otherwise required by law” or “[i]n compliance with ... an authorized investigative demand.” 45 C.F.R. § 164.512(f)(1) & (f)(l)(ii)(C). “Required by law” is defined as “a mandate contained in law that compels an entity to make a use or disclosure of protected health information and that is enforceable in a court of law.” 45 C.F.R. § 164.103. Statutes requiring the production of information are included in the definition of “required by law.” Id. Section 893.07, Florida Statutes, is Florida’s statute that requires pharmacies to produce, for inspection and copying by law enforcement officers, records of controlled substances sold and dispensed. Thus, a pharmacy’s provision of records to investigating police officers in compliance with section 893.07, Florida Statutes, also comports with HIPAA.

Even where evidence is disclosed by a covered entity in violation of HIPAA standards, suppression of the records is not provided for by HIPAA and is thus not a proper remedy. State v. Mubita, 145 Idaho 925, 188 P.3d 867, 878 (2008); State v. Straehler, 307 Wis.2d 360, 745 N.W.2d 431 (2007). Fines and imprisonment, not suppression of evidence, are the remedies expressed in the Act for violations of the disclosure standards by a covered entity. 42 U.S.C. §§ 1320d-5, 1320d-6. Exclusion of evidence is proper only where the statute violated provides for such exclusion, or where a constitutional violation has occurred. See generally Jenkins v. State, 978 So.2d 116 (Fla.2008). As stated in U.S. v. Zamora, 408 F.Supp.2d 295, 298 (S.D.Tex.2006), “HIPAA was passed to ensure an individual’s right to privacy over medical records, it was not intended to be a means for evading prosecution in criminal proceedings.” See also State v. Eich-horst, 879 N.E.2d 1144 (Ind.Ct.App.2008); State v. Yenzer, 40 Kan.App.2d 710, 195 P.3d 271 (2008).

Finally, article I, section 23 of the Florida Constitution does not support the suppression order on appeal. Patients’ right to privacy in their medical records is not absolute. Such privacy rights “will yield to compelling government interests” and “the control and prosecution of criminal activity is a compelling state interest.” State v. Johnson, 814 So.2d 390, 393 (Fla.2002). Regulation of the sale and distribution of dangerous drugs has been -recognized as a “vital interest” of the state. Whalen v. Roe, 429 U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977). Other jurisdictions with statutes similar to section 893.07, Florida Statutes, have uniformly held that persons filling prescriptions for controlled substances have “a limited expectation of privacy in pharmacy records.” Murphy v. State, 115 Wash.App. 297, 62 P.3d 533, 539 (2003); see also State v. Russo, 259 Conn. 436, 790 A.2d 1132 (2002) (warrantless seizure of pharmacy records valid due to statutory provision for same); State v. Welch, 160 Vt. 70, 624 A.2d 1105 (1992) (warrantless survey of pharmacy records authorized by statute). In an appeal of administrative proceedings against a licensed oral surgeon for improperly prescribing controlled substances, Florida’s Third District Court of Appeal held that the surgeon “had no reasonable expectation of privacy with respect to the completed prescriptions in the possession of the pharmacy” and was thus precluded from challenging the warrantless search of the pharmacy’s records. Cushing v. Dep’t of Prof'l Regulation, 416 So.2d 1197, 1198 (Fla. 3d DCA 1982) (search pursuant to § 893.07(4), Fla. Stat.). In Cushing, the Court concluded: “we regard as frivolous the appellant’s argument that the result as to either the search or the evidentiary issue is changed or even affected by the right of privacy provision of the Florida Constitution. Article I, Section 23, Florida Constitution (1980).” Id.

Accordingly, the trial court’s ruling that the warrantless seizure of Appellee’s pharmacy records without prior notice to Ap-pellee was unlawful was erroneous. The order suppressing the prescription records is REVERSED and this case REMANDED.

WOLF and WEBSTER, JJ., concur.


author: BROWNING, JR., EDWIN B„ Senior Judge. PADOVANO, J.,

text:
    Richard HERNDON and Belinda Herndon, Appellants, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., a Florida Nonprofit Corporation, Appellee.
    No. 1D09-0437.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    John S. Mills and Jessie L. Harrell of Mills, Creed & Gowdy, Jacksonville; Helen W. Spohrer and Robert F. Spohrer of Spohrer & Dodd, P.L., Jacksonville, for Appellants.
    Dale J. Paleschic and Elizabeth M. Collins of Dell Graham, P.A., Gainesville, for Appellee.
   BROWNING, JR., EDWIN B„ Senior Judge.

Appellants, Richard Herndon and Belinda Herndon, as Personal Representatives of the Estate of Michelle Herndon (Plaintiffs below) appeal from an order granting Shands Teaching Hospital and Clinics, Inc.’s (Defendant below), motion to dismiss with prejudice, Appellants’ second amended complaint for failure to allege a legal duty of Appellee to Michelle Herndon. Because we conclude that Appellants alleged sufficient facts to support a legal duty, we reverse the order dismissing Appellants’ second amended complaint with prejudice and remand the case for further proceedings.

Appellants alleged that Oliver O’Quinn, (hereinafter referred to as “O’Quinn”), a surgical nurse employed by Appellee, murdered Michelle Herndon with an injection of hazardous controlled drugs (Propofol, Midazolam and Estomidate, unavailable without a doctor’s prescription and under the supervision and control of Appellee). Appellants alleged that Appellee had a legal duty to Michelle Herndon that was breached by its negligent hiring and supervision of O’Quinn. Specifically, Appellants alleged that O’Quinn had a history of stealing controlled substances that Appel-lee knew or should have known of had it done a competent background check of O’Quinn. Moreover, after O’Quinn was hired, Appellee knew or should have known that the hazardous controlled drugs were being stolen from Appellee’s depository and were unaccounted for, because Appellee was told by its employees that O’Quinn was stealing or otherwise taking the drugs. Appellee’s only reaction was to call a conference with O’Quinn about his job performance, and he resigned, effective two weeks later. Appellee took no immediate action to dismiss O’Quinn, or make the controlled substances unavailable to him. Unfortunately, during O’Quinn’s employment by Appellee, he became infatuated with Michelle Herndon and murdered her, with the hazardous controlled drugs taken from Appellee’s control, when she told him of her engagement and approaching marriage to her fiancé. The exact circumstances of O’Quinn’s injection of such drugs in Michelle Herndon are unknown at this time because of his taking the Fifth Amendment in his criminal proceeding and the absence of discovery in this proceeding. On these alleged facts, the trial judge dismissed Appellant’s second amended complaint with prejudice for failure to allege a legal duty of Appellee to Michelle Herndon.

We disagree. As required, we must take the facts alleged in the second amended complaint as true and, reading them in the light most favorable to Appellants here, we conclude the Appellants’ complaint essentially alleges: (1) Appellee knew or should have know of the risk of unsupervised release of hazardous controlled drugs under its control requiring a doctor’s prescription for use; (2) a reasonable medical care provider like Appellee, in possession or control of the alleged drugs, would understand that the public would be exposed to an unreasonable and unnecessary risk of harm unless procedures and actions were undertaken to guard against the risk of unauthorized removal of hazardous drugs from its control without a doctor’s prescription; and (3) the death of Michelle Herndon was a foreseeable consequence of Appellee’s failure to use reasonable care in the hiring and supervision of O’Quinn. We conclude these facts and allegations are sufficient to establish a duty of care.

Our review is de novo and we are limited to the facts alleged in the second amended complaint. See Brewer v. Clerk of the Circuit Court, Gadsden County, 720 So.2d 602 (Fla. 1st DCA 1998); Shurben v. Dollar Rent-A-Car, 676 So.2d 467 (Fla. 3d DCA 1996). A common law duty is recognized, regardless of intervening criminal conduct, when a person’s actions “create ‘a foreseeable zone of risk’ posing a general threat of harm to others ... to ensure that the underlying threatening conduct is carried out reasonably.” United States v. Stevens, 994 So.2d 1062, 1067 (Fla.2008); see McCain v. Fla. Power Corp., 598 So.2d 500, 503 (Fla.1992); Shurben, 676 So.2d at 467. Moreover, this Court has explained these legal parameters by pointing out that the essence of the zone of risk is not the foreseeability of the specific injury that occurred, but whether the zone of risk poses a general threat of harm to others. See Hewitt v. Avis Rent-A-Car Sys., Inc., 912 So.2d 682 (Fla. 1st DCA 2005). Finally, “foreseeability, as it relates to proximate cause, is generally left to the trier of fact, and if reasonable persons could differ as to whether the facts establish proximate cause, then the resolution of the issue must be left to the fact finder.” Id. at 686.

The drugs used to murder Michelle Herndon were dangerous drugs that require a doctor’s prescription, and Appellee was entrusted with their proper use. Ap-pellee’s failure to ensure their proper use created a “zone of risk,” as it exposed the general public to a risk that Appellee could have avoided by taking reasonable measures to prevent the drugs’ theft and removal without a doctor’s authorization. See id. However, Appellee omitted a competent background cheek of O’Quinn, which would have revealed his previous theft of controlled drugs, and failed to reassign or discharge him when his theft of the drugs was discovered and reported to it before Michelle Herndon’s death.

Furthermore, we are unpersuaded by the trial judge’s reasoning that Stevens provides any basis for entry of the dismissal with prejudice. Stevens merely applied the principles enunciated in McCain to a defendant’s negligent control of anthrax, a much more hazardous substance than the drugs involved here. However, there is nothing in Stevens or McCain that supports a finding of no duty by Appellee to Michelle Herndon, as a matter of law, for a risk created by negligent control of admittedly dangerous drugs. Stevens was a recognition of a duty under McCain and not a limitation of that duty to the supervision of hazardous drugs having the same hazardous level of anthrax (as concluded by the trial judge).

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

VAN NORTWICK, J., concurs; PADOVANO, J., dissents with opinion.

PADOVANO, J.,

dissenting.

The amended complaint creates the impression that the defendant breached a duty of care to the plaintiff but it does so only by making broad statements that are in the nature of conclusions. Because I believe that the plaintiffs claim against the hospital is unsupported by allegations of fact, I respectfully dissent.

The complaint alleges that Nurse O’Quinn was stealing drugs from the hospital, that several hospital employees had reported that he had removed drugs improperly from the Surgical Intensive Care Unit, and that a supervisor counseled him about his job performance. The desired inference is that the hospital knew Nurse O’Quinn was stealing dangerous drugs and made no effort to retrieve the drugs or to prevent further thefts. Yet this inference is one that is created entirely by the juxtaposition of sentences in the complaint. The complaint does not allege that the hospital had received reports that Nurse O’Quinn had been stealing dangerous drugs or even that he had taken any drugs off the premises. What it says is that he had improperly removed the drugs from the Surgical Intensive Care Unit in the hospital. This could signify nothing more than a breach of hospital protocol. Nor does the complaint allege that the counseling session by Nurse O’Quinn’s supervisor had anything to do with the alleged drugs. Again, if the reader gets that impression, it is only because the sentences have been arranged in such a way as to create the impression.

If we consider only the allegations of fact and the inferences fairly arising from those facts, as I believe we should, the complaint fails to allege that the hospital breached a duty to Michelle Herndon. Civil liability based on the allegations made here would, in my view, come dangerously close to a form of strict liability. The hospital does not owe a duty of care to members of the public at large to ensure that they will not be victims of crime. Liability cannot exist in this case merely because the drugs Nurse O’Quinn used to murder Michelle Herndon had been stolen from the hospital. Nor can it exist merely because he was employed there. Yet that is essentially all that is alleged.

I believe that the majority has misapplied the decision in United States v. Stevens, 994 So.2d 1062 (Fla.2008). In that case, the court held that the manufacturer of anthrax owes a duty of care to members of the public to ensure that its product is not intercepted and disseminated. The difference is that anthrax is inherently dangerous. Injury or death can occur merely by coming in contact with the substance. In contrast, the drugs at issue here are harmful only if they are injected into the body. Unlike anthrax, these drugs can only cause injury or death if they are administered negligently or, as in this case, by the intervening criminal act of a third party.

The foreseeability of harm in the anthrax case takes only one step. If a person comes into contact with anthrax, injury or death will occur. To say that the harm was foreseeable in this case, however, would require several additional steps. Assuming the hospital knew that Nurse O’Quinn was stealing the drugs, one would have to assume he was not using them himself, but rather that he was giving them to others against their will. One would also have to assume that the hospital could reasonably predict that he would intentionally harm or kill someone by deliberately giving them an overdose. This, I think, stretches the duty element of negligence too far.

For these reasons, I respectfully dissent.


author: PER CURIAM.

text:
    Marcus Lakeith NEWSOME, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-6303.
    District Court of Appeal of Florida, First District.
    Nov. 30, 2009.
    Nancy A. Daniels, Public Defender, M. Gene Stephens, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Jones v. State, 791 So.2d 580 (Fla. 1st DCA 2001).

HAWKES, C.J., BENTON and THOMAS, JJ., concur.


author: WHATLEY, Judge.

text:
    Alfred L. WILLIAMS, II, on behalf of himself and all others similarly situated, Appellant, v. HERITAGE OPERATING, L.P., d/b/a Heritage Propane, a Delaware Limited Partnership, as successor in interest to Peoples Gas Company, Appellee.
    No. 2D08-6230.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    Jeffrey M. Liggio of Liggio & Benrubi, P.A., West Palm Beach, Scott Johni of Scott Johni, P.A., Tampa, and Bard D. Rockenbach and Nichole J. Segal of Burlington & Rockenbach, P.A., West Palm Beach, for Appellant.
    R. Charles Wilkin, III, of Glass Wilkin, Tulsa, Oklahoma, and Alexander V. Ray of Lau, Lane, Pieper, Conley & McCreadie, P.A., Tampa, for Appellee.
   WHATLEY, Judge.

Alfred L. Williams, II, appeals the final summary judgment entered in favor of Heritage Operating, L.P., d/b/a Heritage Propane in his action for breach of contract. We reverse.

In 1996, Williams entered into a contract with Peoples Gas, Heritage’s predecessor, to purchase LP gas. The contract entailed the installation of a tank in Williams’ yard for the storage of the gas. In March 2005, Williams received, for the first time, an invoice for tank rental.

Williams argues that by charging him for tank rental, Heritage breached its contract with him because the contract only allows Heritage to change its charges for gas or service and a tank is neither gas nor a service. The contract provision at issue states as follows: “Company has the right to alter its schedule of charges for LP Gas and service at any time without notice.” Heritage argues that this provision clearly and unambiguously allows the charging of a fee for the service of supplying the gas tank.

In entering summary judgment in favor of Heritage, the trial court made several findings. First, the court found that because the contract contained no provision regarding duration, it was terminable at will and would not support a breach of contract claim. While termination of a terminable at will contract will not support a breach of contract claim, allegations that the terminable at will contract was breached during the time it was in effect between the parties will support such a claim. Florida-Georgia Chem. Co. v. Nat’l Labs., 153 So.2d 752, 754 (Fla. 1st DCA 1963). Williams did not allege that Heritage breached the contract by terminating it; he alleged that it breached the contract by charging him a fee not provided for in the contract. Thus, under these facts, his breach of contract claim was not barred on the ground that the contract was terminable at will.

Second, the trial court ruled that the contract provision at issue was clear and unambiguous and allowed Heritage “to alter its charges at any time. Accordingly, altering the charges to include the tank rental fee does not constitute a breach of contract.” This finding improperly focuses on only one part of the provision at issue. The provision does not just allow for the altering of any charges at any time, it specifies those charges to be “for LP Gas and service.” The issue is whether “service” encompasses tank rental.

The trial court addressed that issue in its third finding, wherein it ruled that the subject provision was clear and unambiguous and that “Tank Rental clearly represents a charge for service.”

Williams argues that a tank is a thing, not a service. He notes that the tank rental invoice includes sales tax and that in Florida, services are not taxed. Heritage argues that it is charging a fee for the service of supplying the gas tank. We believe that the parties both present plausible interpretations of the provision at issue, and we cannot say as a matter of law that one or the other is clearly correct. Where there are two reasonable interpretations of a contract, “summary judgment is inappropriate because there is a genuine issue of material fact.” Fecteau v. Se. Bank, N.A., 585 So.2d 1005, 1007 (Fla. 4th DCA 1991).

Finally, the court noted that Williams had voluntarily paid the tank rental fee and that because the contract is terminable at will, he could have terminated the contract instead of continuing to pay the rental fee. While Williams could have taken this course of action, Heritage has cited no authority requiring him to do so. Obviously, Williams did not want to terminate the contract; he wanted to correct what he alleged was a breach of that contract. According to Williams’ affidavit filed in response to Heritage’s motion for summary judgment, Williams contacted Heritage soon after receiving the tank rental invoice in April 2005 regarding this change to the contract. When he was not able to get Heritage to waive the rental fee, he left a voice mail message with corporate counsel asserting that Heritage did not have the right to charge him a fee for tank rental. He received no response from counsel, and he filed his action for breach of contract in November 2005. Thus, he did not fail to declare a breach of contract while continuing to perform under the contract. Cf. Acosta v. Dist. Bd. of Trs. of Miami-Dade Cmty. Coll., 905 So.2d 226, 229 (Fla. 3d DCA 2005) (quoting Dep’t of Envtl. Prot. v. Gloucester Envtl. Mgmt. Servs., 264 F.Supp.2d 165, 177-78 (D.N.J.2003)).

Because we cannot say as a matter of law that the contract provision at issue allows for the charge of a gas tank rental fee, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

DAVIS and SILBERMAN, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Ruben VELEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-5280.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    Ruben Velez, pro se.
   SILBERMAN, Judge.

We affirm the order summarily denying Ruben Velez’s postconviction motion that he styled as a motion for clarification. We write only to address the application of section 947.1405(7), Florida Statutes (1995), which concerns conditional release supervision.

Velez correctly contended that the 1995 version of section 947.1405(7), which provides for mandatory special conditions of conditional release supervision for inmates who meet certain criteria, does not apply to his 1990 offense. However, section 947.1405(6), Florida Statutes (Supp.1990), provides that “the commission shall conduct a review of the inmate’s record for the purpose of establishing the terms and conditions of the conditional release. The commission may impose any special conditions it considers warranted from its review of the record.” Thus, the Florida Parole Commission has discretionary authority to impose special conditions as part of an inmate’s conditional release pursuant to section 947.1405(6). See Grace v. Fla. Parole Comm’n, 985 So.2d 1213, 1214 (Fla. 1st DCA 2008) (determining that pursuant to section 947.1405(6), Florida Statutes (Supp.1990), the Florida Parole Commission “had the discretionary authority to impose special sexual offender conditions on [the petitioner’s] conditional release supervision”); see also Ortiz v. Fla. Parole Comm’n, 15 So.3d 941, 942 (Fla. 3d DCA 2009) (determining that “the Florida Parole Commission had the authority to impose a curfew as a condition of conditional release, where the underlying crimes were committed in 1990”) (footnote omitted).

Affirmed.

FULMER and DAVIS, JJ., Concur.


author: RAMIREZ, C.J.

text:
    MUTCHNIK, INC. CONSTRUCTION, Appellant, v. Robert DIMMERMAN and Rochelle Dimmerman, Appellees.
    No. 3D08-2805.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Adorno & Yoss, and John J. Shahady, and Thomas R. Shahady, Fort Lauderdale, for appellant.
    Gray Robinson, and Juan C. Martinez, Miami, for appellees.

      Before RAMIREZ, C.J., and GERSTEN, and SHEPHERD, JJ.
   RAMIREZ, C.J.

Mutchnik, Inc. Construction appeals the entry of an adverse final judgment, arguing that the trial court based its decision on an affirmative defense, working without a building permit, which had not been raised by the pleadings. We agree with Mutchnik’s argument and reverse.

This case arises out of a dispute over payment for labor and construction. Mutchnik formed an oral contract -with appellees Robert and Rochelle Dimmer-man for construction on their Miami Beach property. Mutchnik alleged that, after performing about $17,000 worth of work and submitting an invoice, the Dimmer-mans locked him out of the property and refused to pay him. Mutchnik placed a construction lien on the house and sued the Dimmermans for breach of contract and unjust enrichment. After a non-jury trial, the trial court entered its final judgment finding a valid contract, but dismissing the construction lien claim because Mutchnik had failed to obtain a work permit.

Upon review, we conclude that the trial court committed error when it based its judgment on issues not raised by the parties in the pleadings. See Lovett v. Lovett, 93 Fla. 611, 112 So. 768, 771 (1927); Pro-Art Dental Lab, Inc. v. V-Strategic Group, LLC, 986 So.2d 1244, 1252 (Fla.2008); Carroll Associates, P.A. v. Galindo, 864 So.2d 24, 28 (Fla. 3d DCA 2003); In re Estate of Hatcher, 439 So.2d 977, 980 (Fla. 3d DCA 1983). Accordingly, we reverse the trial court’s decision and remand for a new trial.

      . The trial court based this decision on its interpretation of Braverman v. Van Bower, Inc., 583 So.2d 381 (Fla. 3d DCA 1991). We do not reach the appellant’s argument that the judge misapplied the case to the facts here because we reverse on other grounds.

      . We note that on remand, defendants, the Dimmermans, are not entitled to amend their pleadings and add the affirmative defenses they did not raise below. See Arky, Freed, Stearns, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 562 (Fla.1988) ("It is our view that a procedure which allows an appellate court to rule on the merits of a trial court judgment and then permits the losing party to amend his initial pleadings to assert matters not previously raised renders a mockery of the ‘finality’ concept in our system of justice.”) (emphasis in original).


text:
    John Ceasar HAZELTON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2662.
    District Court of Appeal of Florida, Third District.
    Dec. 2, 2009.
    Rehearing Denied Jan. 7, 2010.
    Harold Long, Jr., for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Hazelton v. State, 943 So.2d 280 (Fla. 3d DCA 2006).


author: VILLANTI, Judge.

text:
    Eddie Lee STEADMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4748.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   VILLANTI, Judge.

This case is on remand from the supreme court for reconsideration in light of its decisions in State v. Rabedeau, 2 So.3d 191 (Fla.2009), and Gisi v. State, 4 So.3d 613 (Fla.2009). Because we conclude that Rabedeau and Gisi are inapplicable to Eddie Lee Steadman’s case, we affirm.

Steadman pleaded and was sentenced in two cases. In case number 06-009195, he was convicted of burglary of a conveyance, grand theft, two counts of aggravated assault, fleeing or eluding, driving with a suspended license, and giving false identification to law enforcement. His sentences for one count of aggravated assault, fleeing or eluding, and driving with a suspended license were consecutive to the other sentences. The sentences for the other counts were concurrent. The trial court gave Steadman jail time credit on all concurrent counts but did not give him jail time credit on the three consecutive counts, counts 3, 5, and 6.

In case number 06-009500, Steadman was convicted of driving with a suspended license, fleeing or eluding, resisting an officer, burglary of a conveyance, and grand theft. His sentences for driving with a suspended license, fleeing or eluding, resisting an officer, and grand theft were concurrent, but his sentence for burglary was consecutive to the other sentences. The trial court gave Steadman jail time credit on the three concurrent counts, but did not give him jail time credit on the consecutive burglary count, count 4.

Steadman filed a motion to correct sentencing error, arguing that the trial court should have given him credit for time served in jail while awaiting sentence on counts 3, 5, and 6 of case number 06-009195, and on count 4 of case number 06-009500. The trial court denied the motion, and Steadman appealed. On appeal, both Steadman and the State asserted that this case was controlled by Gisi v. State, 948 So.2d 816 (Fla. 2d DCA 2007), which at the time was pending before the supreme court. We affirmed, Steadman v. State, 997 So.2d 417 (Fla. 2d DCA 2008) (table decision), and Steadman sought and was granted review by the supreme court. Accordingly, when the supreme court decided Gisi and Rabedeau, it remanded Stead-man’s appeal for further consideration by this court. Steadman v. State, 14 So.3d 218 (Fla.2009).

Rabedeau and Gisi are inapplicable to this case because they involved denial of credit for time served in prison on previously served concurrent prison sentences before the defendant was resentenced to consecutive prison terms. In Rabedeau, the defendant was first sentenced to three concurrent five-year prison terms, followed by three concurrent nine-year probation terms. 2 So.3d at 192. After completing his concurrent five-year prison terms, the defendant violated probation and was re-sentenced to three consecutive ten-year prison terms. Id. He received five years’ credit for time served in prison on only one of the new ten-year sentences. Id. The supreme court held that upon resen-tencing to consecutive sentences, the trial court was required to give the defendant credit for the time served on all three concurrently served prison sentences against each new consecutive sentence. Id. at 193 (“[I]f multiple convictions result in concurrent sentences, credit must be awarded for time served on each sentence in any resentencing for the multiple convictions.”). Similarly, Gisi involved a defendant who was originally sentenced concurrently on fourteen counts but who, upon resentencing, received three consecutive fifteen-year sentences. 948 So.2d at 817. Like the defendant in Rabedeau, the defendant in Gisi argued that he was entitled to credit for time served in prison on each of his three new sentences, see 948 So.2d at 819, and the supreme court agreed, see 4 So.Bd at 614. Neither Rabe-deau nor Gisi addressed the issue presented in the present case: credit for time spent in jail while awaiting sentence.

“Time spent in jail before sentencing initially occurs differs from time served as part of ... a sentence.” Bar-nishin v. State, 927 So.2d 68, 71 (Fla. 1st DCA 2006). When a defendant receives concurrent sentences, he is entitled to receive credit on each sentence for time spent in jail before sentencing. Daniels v. State, 491 So.2d 543, 545 (Fla.1986) (“[W]hen ... a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.”); Bamishin, 927 So.2d at 71. However, a “defendant [who] does not receive concurrent sentences on multiple charges ... ‘is not entitled to have his jail time credit pyramided by being given credit on each sentence for the full time he spends in jail awaiting disposition.’ ” Daniels, 491 So.2d at 545 (quoting Martin v. State, 452 So.2d 938, 938-39 (Fla. 2d DCA 1984)). Rather, “a defendant who is convicted of multiple offenses and sentenced to consecutive terms of imprisonment must be given presen-tence jail credit only on the first of the consecutive sentences.” Canete v. Fla. Dep’t of Carr., 967 So.2d 412, 415-16 (Fla. 1st DCA 2007); see also Keene v. State, 500 So.2d 592, 594 n. 2 (Fla. 2d DCA 1986) (“In the case of consecutive sentences, a defendant is only entitled to credit against one of the sentences.... ”); Bamishin, 927 So.2d at 71 (“If convicted of multiple offenses, the defendant must be given [jail time] credit only on the first of consecutive sentences.”); Gillespie v. State, 910 So.2d 322, 324 (Fla. 5th DCA 2005) (“[J]ail time credit need not be applied to all consecutive sentences.”). Consistent with established case law, Steadman received jail time credit on all concurrent sentences and did not receive credit on the consecutive sentences. This case is not affected by Gisi or Rabedeau, and the trial court did not err.

Affirmed.

CASANUEVA, C.J., and KHOUZAM, J., Concur.


text:
    Malcolm Randall BADGER, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1717.
    District Court of Appeal of Florida, Second District.
    Dec. 2, 2009.

      James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Malcolm Randall Badger appeals the trial court’s orders revoking his probation and sentencing him to prison terms totaling fifteen years in four separate criminal cases. We reverse three concurrent five-year sentences imposed on Mr. Badger’s third-degree felony convictions. The earlier sentences for those convictions had actually expired prior to these revocation proceedings.

We also reverse the fifteen-year sentence imposed in case number 00-CF-21191 because the earlier youthful offender sentence for this conviction had expired prior to these revocation proceedings. It seems highly unlikely that the judge who agreed to the youthful offender sentence on a violation of probation intended this result, but the result appears necessary under the law applicable to this case. This case demonstrates that a trial judge may need to be cautious about the decision to first impose a youthful offender sentence on a violation of probation.

I.

Sentencing in these cases in 2007 was a challenge because two of the cases, case numbers 00-CF-17866 and 00-CF-21191, involved sentencing on a second violation of probation. The other two cases, case numbers 02-CF-535 and 02-CF-12003, involved sentencing on a first violation of probation.

The two counts in case number 00-CF-17866 had resulted in convictions for third-degree felonies in 2002, and the terms of probation for those two convictions had actually expired prior to the proceedings in 2007 as a result of credit for time served on probation prior to the first violation of probation. Count two in case number 00-CF-21191 also involved a third-degree felony, and the term of probation for that count had also expired prior to the proceedings in 2007.

Accordingly, we reverse the sentences in case number 00-CF-17866 and the sentence for count two in case number 00-CF-21191. On remand, the trial court shall vacate these sentences. Our disposition does not affect the sentences in case numbers 02-CF-535 and 02-CF-12003.

II.

The more difficult issue for this court has been the fifteen-year sentence imposed for count one in case number 00-CF-21191. We reluctantly conclude that the two-year term of probation had expired in that case prior to the initiation of the violation of probation proceedings in which the sentence on appeal was imposed. Accordingly, this sentence must also be vacated.

In case number 00-CF-21191, when he was almost nineteen years old, Mr. Badger was charged with burglary of a dwelling and grand theft after he entered a woman’s apartment through the window and stole her purse and a VCR in December 2000. He entered a negotiated plea in April 2001 in exchange for a non-prison sentence of twenty-four months’ community control, followed by twenty-four months’ probation.

In July 2001, the State filed an affidavit of violation of community control, alleging that Mr. Badger had moved from his approved residence. A warrant for Mr. Badger’s arrest was issued on the affidavit. A second such affidavit was filed in June 2002, and a third in September 2002. The jail credit log indicates that he was incarcerated in the county jail from August 27, 2002, until March 20, 2003.

At a hearing on March 20, 2003, the trial court orally revoked Mr. Badger’s “probation,” i.e. community control, without stating the grounds for the revocation. An order of revocation was never entered. Instead, the trial court entered a second judgment on March 20 for the same offenses on which it had previously entered judgment in April 2001 and imposed a new sentence that was a youthful offender sentence of four years’ imprisonment followed by two years’ probation. This new sentence expressly gave Mr. Badger 307 days of jail credit. It did not, however, give him any credit toward the two-year term of probation. Even though Mr. Badger had already been on community control for approximately twenty-three months, there was no discussion at the hearing concerning the impact of the prior community control on his youthful offender term of probation.

After Mr. Badger served his four-year term of imprisonment and was released from incarceration, the State filed an affidavit of violation of probation on November 16, 2006. This violation led to the imposition of the fifteen-year term of imprisonment that is the sentence on appeal in this case. The question on appeal is whether Mr. Badger’s term of probation on the youthful offender sentence expired before the affidavit was filed in November. This, in turn, depends on whether he was entitled to credit on this term of youthful offender probation for some or all of the period that he was on community control, albeit not abiding by the terms of his community control, between April 2001 and March 2003.

First, we conclude Mr. Badger is entitled to credit because the maximum lawful sentence that he could receive as a youthful offender was four years’ imprisonment, followed by two years’ probation. See Smith v. State, 941 So.2d 565, 566 (Fla. 1st DCA 2006) (“[W]hen sentencing an accused as a youthful offender, a court may not impose a split sentence that exceeds six years in length.”). Reluctantly, we conclude that the trial court could not simply disregard the earlier term of community control when measuring the two-year term of probation for the youthful offender sentence, anymore than it could have disregarded the earlier time spent in jail. See State v. Summers, 642 So.2d 742, 743 (Fla.1994) (“[U]pon revocation of probation, the time a probationer has already served on probation for a given offense must be credited toward any new term of probation imposed for that offense, when necessary to ensure that the total term of probation does not exceed the statutory maximum for that offense.”). The fact that the maximum lawful sentence could have been fifteen years if the court had not decided to treat Mr. Badger as a youthful offender does not allow us to ignore the trial court’s determination that Mr. Badger was a youthful offender.

We further conclude that Mr. Badger is entitled to credit for the full period of community control between April 2001 and March 2003, even though there were outstanding warrants for his arrest on the affidavits of violation of probation. In 1997, the supreme court held that time of probation or community control is calculated from the date it is imposed until the date of revocation. See Francois v. State, 695 So.2d 695 (Fla.1997); see also Jolly v. State, 699 So.2d 303 (Fla. 2d DCA 1997). The legislature amended section 948.06(l)(d) to toll a term of community control or probation when an affidavit of violation is filed. See Ch. 2001-109, § 1, at 911-12, Laws of Fla. That amendment became effective on July 1, 2001. See id., § 2, at 913. In this ease, however, both Mr. Badger’s offense and the entry of the order of community control and probation occurred before the effective date of the amendment to the statute. As a result, the tolling provisions in section 948.06(l)(d) do not apply in this case. See Guevara v. State, 983 So.2d 738, 739 n. 2 (Fla. 3d DCA 2008) (declining to apply 2001 tolling provision where offense was committed in December 1998); Frye v. State, 885 So.2d 419 (Fla. 1st DCA 2004) (prohibiting retroactive application as measured by date of offense); see also Harper v. State, 955 So.2d 617 (Fla. 5th DCA 2007) (permitting application of tolling provisions where order of probation was entered after the effective date of the statute). To the extent that our decision conflicts with the Fourth District’s decision in Shenfeld v. State, 14 So.3d 1021, 1024 (Fla. 4th DCA 2009), we certify a conflict. Consequently, the filing of affidavits of violation did not operate to toll Mr. Badger’s term of community control such that he would be entitled to less than the full amount of credit for the time he served on community control.

We have not overlooked the fact that Mr. Badger is effectively receiving “double” credit for the time he spent in jail awaiting resolution of his violation of community control in this case. There is case law holding that probation is automatically tolled when a defendant is placed into prison for an unrelated offense. See, e.g., State v. Savage, 589 So.2d 1016, 1018 (Fla. 5th DCA 1991) (holding probation was tolled while defendant was incarcerated in another county on an unrelated offense). Here, by contrast, Mr. Badger was in jail on both the violations of community control in this case and for new offenses. That Mr. Badger received jail credit for this time served does not eliminate his entitlement to a separate credit to ensure that the total term of his sentence upon revocation is within the six-year statutory maximum. Compare Bragg v. State, 644 So.2d 586, 587 (Fla. 1st DCA 1994) (holding “trial court must give credit for any time previously served on probation if the new period of probation together with other sanctions (including jail and prison credit) and the time previously served on probation total more than the statutory maximum”).

Finally, even prior to the statutory amendment in 2001, there was authority for the proposition that probation is automatically tolled during a period when the probationer has absconded. See Kimball v. State, 890 So.2d 495, 496 (Fla. 5th DCA 2004). This presents perhaps the most difficult aspect of this case. It appears likely that Mr. Badger may have absconded for most of the period between April 2001 and his arrest in August 2002. At the violation of community control hearing in March 2003, the State briefly argued that Mr. Badger had committed new substantive offenses and had absconded. If the trial court had properly announced its grounds for revocation at that hearing and the grounds had included absconding, then there would have been no need to give credit for the community control against the youthful offender term of probation.

We have considered whether we should remand this case in late 2009 to determine the trial court’s grounds for revocation at the hearing in March 2003. We conclude that, for these purposes, it was not the defendant’s obligation to force the trial judge to recite grounds or enter a proper written order. At this late juncture, the trial court’s record does not contain a legal basis to toll the period of community control at any point prior to March 2003. We are constrained to hold that, in light of the required credit for this community control, the term of probation under the youthful offender sentence expired before the State filed the affidavit of violation of probation that resulted in the current fifteen-year sentence. Accordingly, we reverse that sentence and order that it be vacated on remand.

Affirmed in part, reversed in part, and remanded.

WHATLEY and KHOUZAM, JJ., Concur.

      . It appears that the sentences in these cases have now been fully served. As a result of our decision concerning the sentence in case number 00-CF-21191, Mr. Badger appears to be entitled to be released.

      . This opinion was modified as a result of Mr. Badger’s motion for rehearing. This section of the opinion was added on rehearing.

      .The failure to enter proper orders of revocation has been a chronic problem in the Thirteenth Judicial Circuit. See, e.g., Johnson v. State, 17 So.3d 1290 (Fla. 2d DCA 2009); Dawkins v. State, 936 So.2d 710 (Fla. 2d DCA 2006).

      . It may be that Mr. Badger could have agreed to waive credit for this term of community control in exchange for the favorable youthful offender sentence, but that did not occur in this case.

      . In Shenfeld, the Fourth District held that the 2007 amendments to section 948.06(1), Florida Statutes, which removed the requirement of issuance of a warrant to toll the probationary period, were procedural in nature and did not violate ex post facto principles. 14 So.3d at 1024.